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Legal news from Wednesday, April 11, 2012




DOJ accuses Apple, publishers of e-book price fixing conspiracy
Maureen Cosgrove on April 11, 2012 2:36 PM ET

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[JURIST] The anti-trust division of the US Department of Justice (DOJ) [official website] filed a complaint [text, PDF] on Wednesday in the US District Court for the Southern District of New York [official website] accusing Apple [corporate website] and other major publishers of colluding to illegally fix electronic book (e-book) prices. The complaint alleges that Apple and publishing companies, including HarperCollins, Hachette Book Group, Macmillan, Penguin and Simon & Schuster, conspired to increase e-book prices in an effort to compete with e-books and the economically-priced Kindle [product page] sold by Amazon [corporate website]. The DOJ investigation of the defendants' conduct revealed conversations between company executives in which they agreed to proceed under the guise of a joint venture in order to raise prices. The lawsuit claims that the defendants' conduct constitutes violations of the Sherman Act [text], and the DOJ is requesting declaratory and injunctive relief. US Attorney General Eric Holder [official website] also announced [speech text] Wednesday that, in response to the lawsuit, three of the publishing companies agreed to settlements with the DOJ.

The DOJ lawsuit is strikingly similar to a class action lawsuit [JURIST report] filed in August in the US District Court for the Northern District of California [official website]. The lawsuit claims that Apple's conduct constitutes violations of federal and state antitrust laws, including the Sherman Act, the Cartwright Act and the Unfair Competition Act [texts]. The European Commission for Competition [official website] announced in December that it will investigate Apple for anti-competitive practices [JURIST report] in connection with its dealings with several publishers.




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France minorities file racial profiling lawsuit
Rebecca DiLeonardo on April 11, 2012 1:36 PM ET

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[JURIST] A group of minorities in France has filed a lawsuit alleging police searches are conducted on the basis of racial profiling, according to a statement made by their lawyers and the Open Society Justice Initiative (OSJI) [advocacy website] on Wednesday. The suit was filed (OSJI press release) in the Tribunal de Grande Instance de Paris [official website, in French] and alleges that French police unfairly single out minority race individuals for searches and identification checks. A French coalition against racial profiling and Syndicat des Avocats de France (SAF), the French lawyers union, have also backed the lawsuit. Article 78-2 of the Code of Criminal Procedure in France authorizes police to request identification from any person without cause. That provision, according to OSJI, "open[s] the door for discriminatory and arbitrary application of the law." This is the first case in France alleging widespread racial profiling in government conduct.

France has faced criticism for racial inequality and discrimination in the past. In August 2010, the UN Committee on the Elimination of Racial Discrimination [official website] concluded its review [JURIST report] of France's compliance with the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) [text], holding that while France has a laudable action plan for eradicating racial discrimination, it must increase efforts to make the plan a reality. In July of that year, French President Nicolas Sarkozy ordered measures [JURIST report] against illegal Roma communities in France and announced new legislation aimed at making their deportation easier. Earlier that month, the French National Assembly [official website, in French] approved a bill [JURIST report] that would make it illegal to wear the Islamic burqa [JURIST news archive] or other full face veils in public. Amnesty International (AI) [advocacy website] criticized the law [press release] saying it "would violate the rights to freedom of expression and religion" of women who choose to wear veils.




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Switzerland court rejects US request for bank data
Maureen Cosgrove on April 11, 2012 1:35 PM ET

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[JURIST] The Swiss Federal Administrative Court (FAC) [official website, in German] on Wednesday ruled [press release, PDF] that Switzerland is not permitted to give the US Internal Revenue Service (IRS) [official website] a Credit Suisse client's account information. In a ruling that cannot be appealed, the court concluded that, because the IRS had requested information about a bank account holder for whom it merely had a suspicion of tax evasion, Credit Suisse rightfully withheld the information. Further, the IRS had failed to include the account holder's name in its request. Unlike in the US, tax evasion is legal in Switzerland [Reuters report]. As such, Americans have been keeping money in Swiss bank accounts. The IRS has accused Credit Suisse of assisting their clients, who are subject to US tax law, in concealing their income and assets. The two countries are currently working to cooperate in enforcing their respective laws.

This ruling comes as the US seeks to put an end to tax-evasion through the use of overseas accounts. In January 2010, the FAC ruled [JURIST report] that the Swiss Financial Market Supervisory Authority (FINMA) [official website, in German] violated the law in February 2009 when it ordered UBS [corporate website] to disclose information to the US on more than 250 of the bank's clients. In November 2009, the US Department of Justice (DOJ) [official website] and the IRS announced [JURIST report] that more than 14,700 Americans have reported to the IRS previously hidden overseas bank accounts in response to a temporary forgiveness program [official website], allowing delinquent taxpayers to avoid criminal prosecution for tax evasion by paying all overdue taxes and penalties. In September 2009, the US and Switzerland signed a treaty [JURIST report] that would increase the amount of information shared between the two nations on would-be tax evaders. The agreement, constructed in accordance with Article 26 of the Model Tax Convention [text, PDF], came one month after a Swiss banker and lawyer were indicted in US federal court [JURIST report] for helping clients hide assets. Earlier in August of that same year, the US reached a preliminary agreement with Switzerland over the identification of anonymous accounts [JURIST report] in Swiss banks, which would aid US officials in identifying those who seek to evade taxes.




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Chief Guantanamo judge sets trial date for 9/11 accused
Max Slater on April 11, 2012 1:34 PM ET

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[JURIST] The chief US military judge at Guantanamo Bay [JURIST backgrounder] assigned himself [memorandum, PDF] on Monday to preside over the tribunals of five alleged plotters of the 9/11 terror attacks [JURIST backgrounder]. Army Col. James Pohl scheduled the hearing for May 5, only a few days after the one-year anniversary of the death of Osama Bin Laden [JURIST report]. The five men facing trial include alleged 9/11 mastermind Khalid Shiekh Mohammed [BBC profile; JURIST news archive], who claimed responsibility [BBC report] for planning the terrorist attacks. Mohammed and the other accused 9/11 plotters, Waleed bin Attash, Ramzi Binalshibh, Ali Abd al-Aziz Ali and Mustafa Ahmad al-Hawsawi, face charges [charge sheet, PDF] including terrorism, hijacking, murder, conspiracy and destruction of property. If convicted, they face the death penalty.

Last week, the Department of Defense (DOD) [official website] referred charges [JURIST report] to Pohl against the five accused 9/11 plotters. The DOD announced last May that it had sworn charges against the five men [JURIST report] for the 9/11 attacks. Last April, US Attorney General Eric Holder [official website] announced that Mohammed and the four others would be tried by a military commission [JURIST report] after the Obama administration abandoned attempts to have the 9/11 suspects tried in civilian courts. Holder had wanted the accused be tried before a federal civilian court [JURIST report] but referred the cases to the DOD after Congress imposed a series of restrictions [JURIST report] barring the transfer of Guantanamo detainees to the US.




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Peru president could face human rights lawsuit: report
Rebecca DiLeonardo on April 11, 2012 12:39 PM ET

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[JURIST] A complaint allegedly filed with the Inter-American Commission on Human Rights (IACHR) [official website] could reopen a human rights lawsuit against Peruvian President Ollanta Humala, Reuters reported [text] Wednesday. The lawsuit alleges wrongdoing by Humala during his service as an army officer in Peru's San Martin province during the 1990s. The suit was dismissed by a Peruvian court in 2009, but has reportedly been re-filed in the IACHR. Ollanta was elected president [BBC report] in June 2011.

Humala has faced human rights charges in the past. A Peruvian judge indicted [JURIST report] Humala in September 2006 for murder, torture and kidnapping stemming from his army service. Earlier that month, prosecutors filed informal charges [JURIST report] against Humala and sent the case to judge Miluska Cano to decide whether prosecutors presented enough evidence to open a criminal case. Prosecutors charged Humala on the basis of testimony from witnesses that claim soldiers under Humala's command dragged a married couple from their home in 1992, and later found the husband shot in the head but never found the body of the wife. Humala narrowly lost the 2006 Peruvian presidential election [BBC report] to incumbent Alan Garcia in June of that year.




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Virginia governor proposes amendments to voter ID bill
Saheli Chakrabarty on April 11, 2012 12:33 PM ET

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[JURIST] Virginia Governor Bob McDonnell [official website] on Tuesday proposed amendments [text, PDF] to Virginia's voter ID legislation as passed by the General Assembly during the 2012 session. McDonnell's amendments include [press release] extending the time a voter would have to present an ID to the local electoral board to the Friday after the election, allowing for community college identification cards as acceptable forms of ID, and requiring a signature comparison component where any voter who votes without presenting a valid ID will already have the signature on his/her provisional ballot on file. The Virginia Senate approved the current legislation [JURIST report] in late February, which allows voters one extra day after the election to present their IDs for their votes to count. In a statement, McDonnell said:
Ensuring the security, fairness and openness of our elections are cornerstones of a strong democracy. For people to have faith in their government, they must have faith in their elections. This legislation passed by the General Assembly attempts to increase the security of our elections by lessening the risk of voter fraud. The legislation adds five forms of identification to the list of acceptable forms of ID and strengthens the protections when someone votes without presenting an ID. In reviewing this legislation, I want to preserve this goal of preventing illegal voting while promoting voter participation, and making sure we do not stand in the way of legitimate voting.
The Virginia General Assembly will consider McDonnell's amendments next week when the session reconvenes.

There are now 32 US states [NCSL backgrounder] that require voters to present some form of ID at the polls, but the issue remains controversial. Last month, Pennsylvania Governor Tom Corbett [official website] signed [press release, PDF] a bill [HB 943 materials] requiring voters to present photo identification [JURIST report] in the upcoming November election. Also in March, a Wisconsin judge ruled unconstitutional [JURIST report] the state's voter ID law requiring a voter to display photo ID when entering a polling place to vote. In February, South Carolina Attorney General Alan Wilson filed suit against the US Department of Justice (DOJ) [official website] over its ruling that barred South Carolina [JURIST reports] from enforcing its voter ID law. In November, Mississippi voters approved a ballot measure [JURIST report] to implement a voter ID law. In June, Missouri Governor Jay Nixon [official website] vetoed [JURIST report] a law requiring persons to present photo ID at voting booths. In March 2011, the Georgia Supreme Court [official website] upheld [JURIST report] a law requiring voters to present one of six government-issued photo IDs in order to vote. In contrast, a three-judge panel for the US Court of Appeals for the Ninth Circuit [official website] struck down [JURIST report] a portion of an Arizona law requiring proof of citizenship for voter registration in October 2010.




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Philippines ex-president pleads not guilty to corruption charges
Max Slater on April 11, 2012 12:33 PM ET

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[JURIST] Former Philippines president Gloria Macapagal-Arroyo [BBC profile; JURIST news archive] and her husband Jose Miguel Arroyo pleaded not guilty on Tuesday to corruption charges before a special anti-graft court in the Philippines. The corruption charges stem from a government contract that Arroyo signed with a Chinese telecommunications company called ZTE Corporation [corporate website]. A Philippines congressional probe in 2007 found the $330 million deal that Arroyo signed with ZTE was overpriced and riddled with problems [AP report], including the allegation that Jose Miguel Arroyo accepted bribes to push through the contract. If convicted of corruption, the Arroyos could face a maximum sentence of 10 years in prison.

In March, the anti-graft court ordered the arrest of Jose Miguel Arroyo [JURIST report] on bribery charges relating to the ZTE contract. In February, former president Arroyo pleaded not guilty [JURIST report] to electoral fraud charges. She and her husband tried to leave the country after the Philippines Supreme Court issued a temporary restraining order [JURIST report] allowing the travel outside of the country after which the Philippine authorities formally charged [JURIST report] the former president. In December, after the initial criminal complaint for charges of corruption and electoral fraud, Philippine authorities filed a second one [JURIST report] alleging bribery in the approval of multi-million deal with ZTE.




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Appeals court rejects broad reading of computer fraud law
Katherine Getty on April 11, 2012 10:04 AM ET

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[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Tuesday rejected [opinion, PDF] the government's broad reading of the Computer Fraud and Abuse Act (CFAA) [text]. This decision directly contradicts the rulings of three other appeals courts that did allow for a broader reading of the law. Writing for the 9-2 majority, Chief Justice Alex Kozinski upheld the lower court ruling. He found that if the court followed the path the government wanted to take it would transform the purpose of the CFAA from an anti-hacking law into a misappropriation law. The government was asking that the portion of the law dealing with "exceeds authorized access" be read as including people who access unauthorized information while on a computer they were authorized to use.
If Congress meant to expand the scope of criminal liability to everyone who uses a computer in violation of computer use restrictions; which may well include everyone who uses a computer; we would expect it to use language better suited to that purpose. Under the presumption that Congress acts interstitially, we construe a statute as displacing a substantial portion of the common law only where Congress has clearly indicated its intent to do so.
Judge Barry Silverman wrote the dissent, opining that this law had nothing to do with the non-criminal activities cited by the majority, but rather criminal fraud. He believed that the government's reasoning should be followed in order to protect against criminal activities. With a circuit split, it may be more likely that the Supreme Court will take up the issue.

The CFAA was enacted in 1986 to protect against federal computer hacking. Since then, the law has been used numerous times. In 2006, AT&T filed suit [JURIST report] against 25 people claiming they committed fraud by posing as potential customers to obtain information about other customers to be used in legal disputes. Courts have also attempted to use the law in cyber bullying cases. In 2009, a California appeals court overturned the conviction [case materials] of Lori Drew who had been convicted of setting up a fake Myspace account for a 13 year old girl, who eventually committed suicide.




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Nevada same-sex marriage ban challenged
Jamie Davis on April 11, 2012 9:03 AM ET

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[JURIST] National gay rights advocacy group Lambda Legal [advocacy website] on Tuesday filed suit [complaint, PDF] on behalf of eight same-sex couples against the state of Nevada claiming that the state's ban on same-sex marriage [JURIST backgrounder] violates their rights under the Fourteenth Amendment [text] of the US Constitution. Many of the couples, including two women that have been together for 41 years, have recently tried to obtain marriage licenses [AP report] but were denied them by the state. The complaint, filed in the US District Court for the District of Nevada [official website], seeks both preliminary and permanent enjoinment of Nevada Revised Statute § 122.020 and Nevada Constitution Article 1, § 21 [text]. The complaint states:
The State's marriage ban discriminates against each Plaintiff on the basis of sex both facially and as applied, barring each Plaintiff from marriage and relegating him or her to registered domestic partnership solely because he or she wishes to marry a life partner of the same sex.
The complaint also argues that Nevada's ban on same-sex marriage serves no legitimate state interest, as evidenced by the state's legalization of domestic partnerships. The complaint includes Nevada Governor Brian Sandoval as a defendant and three county clerks in their official capacities.

While Nevada is among the states that ban same-sex marriage, several states have recently passed legislation recognizing the marriages. In March, Maryland became the eighth state to allow same-sex marriage [JURIST report] when Governor Martin O'Malley signed the Civil Marriage Protection Act [SB241, PDF]. In February, Washington Governor Christine Gregoire signed legislation [JURIST report] legalizing same-sex marriage. New York, Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and the District of Columbia [JURIST reports] have also approved same-sex marriage. New Jersey has been struggling to pass a same-sex marriage bill, but had a setback in February when Governor Chris Christie conditionally vetoed the bill [JURIST report] and called for a voter referendum to decide the issue, rather than the state legislature.




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Arizona House votes to ban abortions after 20 weeks
Jerry Votava on April 11, 2012 8:29 AM ET

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[JURIST] The Arizona House of Representatives [official website] approved a bill [HB 2036 materials] on Tuesday that bans abortions [JURIST news archive] after 20 weeks into a pregnancy, with an exception carved out only for medical emergencies. In addition to banning abortions after 20 weeks, the bill imposes other restrictions. It requires a woman seeking an abortion to receive an ultrasound 24 hours before an abortion [Arizona Republic report], as opposed to the one-hour requirement which is currently the law in Arizona. The legislation was approved [JURIST report] by the Arizona State Senate [official website] in late March. The measure passed with a vote [results] of 37-22 that was not strictly along party lines. The bill now goes before Governor Jan Brewer [official profile] for her signature within the next five days.

Many states have recently passed laws restricting abortion. In March, Utah passed a law [JURIST report] requiring a woman seeking an abortion to wait 72 hours prior to obtaining the procedure. Also last month, the Idaho State Senate approved a bill [JURIST report] requiring a woman who is seeking an abortion to first receive an ultrasound. Also, Virginia Governor Bob McDonnell [official website] signed a similar ultrasound bill into law [JURIST report]. Earlier in March, the Georgia House of Representatives passed a ban on abortions after five months into a pregnancy [JURIST report]. In February, the US District Court for the Western District of Texas [official website] ruled [JURIST report] that Texas can enforce a state law requiring women to receive a sonogram before obtaining an abortion. In July, the North Carolina state legislature overrode a governor's veto [JURIST report] to pass a law requiring a 24-hour waiting period for a woman seeking an abortion.




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Federal appeals court hears arguments on tobacco warning labels
Jerry Votava on April 11, 2012 7:04 AM ET

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[JURIST] A panel of judges for the US Court of Appeals for the District of Columbia Circuit [official website] heard oral arguments on Tuesday over the constitutionality of new Food and Drug Administration (FDA) [official website] regulations [text] requiring cigarette packaging and advertisements to display more prominent graphic health warning labels [materials]. A federal judge issued a permanent injunction [JURIST report] last month prohibiting the warnings as unconstitutional. The new requirements of graphic image and textual warning labels were imposed by the Family Smoking Prevention and Tobacco Control Act (FSPTCA) [HR 1256 text]. The suit was filed by the RJ Reynolds Co [corporate website], the manufacturer of several popular cigarette brands, on the basis that the new regulations violate their First Amendment rights and burden their right to commercial speech by compelling placement of the new warning labels on the top 50 and bottom 20 percent of all packaging and advertisements. The panel asked [AP report] a number of questions about the case. They asked the FDA to describe the appropriate limits for the type of messages that could be compelled by the government, and whether those warnings could be placed on any legal product. They also asked if the tobacco companies were challenging the factual veracity of the warning labels.

In March, the US Court of Appeals for the Sixth Circuit ruled [JURIST report] that the graphic cigarette label warnings were constitutional, holding that the warnings provide undisputed factual information about the health risks of using tobacco products. US President Barack Obama [official website] signed [JURIST report] the FSPTCA into law in 2009, granting the FDA certain authority to regulate manufactured tobacco products. The legislation heightens warning-label requirements, prohibits marketing "light cigarettes" as a healthier alternative and allows for the regulation of cigarette ingredients. The proposed implementation of new tobacco warning labels has also drawn criticism abroad. In Australia, Philip Morris has filed a complaint [JURIST report] to block new graphic warning label requirements [AUS Health Dept. backgrounder] recently enacted in that country.




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