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Legal news from Wednesday, November 28, 2012




Privacy groups challenge Facebook data policy changes
Jerry Votava on November 28, 2012 3:47 PM ET

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[JURIST] Two privacy advocacy groups wrote a letter [text, PDF] on Monday to Facebook [corporate website] CEO Mark Zuckerberg, urging him to withdraw recently announced proposed changes [press release] to the site's governance documents. The letter, signed by the Electronic Privacy Information Center (EPIC) and the Center for Digital Democracy (CDD) [advocacy websites], noted that some of the changes directly affected the company's privacy policy, and that the changes "raise privacy risks for users, may be contrary to law, and violate your previous commitments to users about site governance." The groups expressed their concerns over Facebook's plan to discontinue its user-voting method for site-wide policy changes, a system enacted in response to privacy complaints filed by EPIC in 2009. The letter also discussed Facebook's plan to share user data between various business entities, claiming that such a move may violate a settlement [JURIST report] last year with the Federal Trade Commission (FTC) [official website]. The proposal discussed in the letter was released on the evening before a long holiday weekend in the United States.

Privacy concerns remain a significant as websites grow in complexity, and the data about individual users they possess becomes more interconnected. In August German data privacy authorities reopened [JURIST report] an investigation into facial recognition software used by Facebook that automatically recognizes facial features in pictures. In February the US District Court for the District of Columbia [official website] dismissed [JURIST] a suit brought by EPIC, asking the FTC to block Google's [corporate website] proposed privacy policy changes [text]. Some commentators have noted that privacy regulations can be transnational [JURIST op-ed] and have effect beyond their immediate jurisdictional boundaries.




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Federal judge orders Philip Morris to admit to deceiving public
Benjamin Minegar on November 28, 2012 1:09 PM ET

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[JURIST] A judge for the US District Court for the District of Columbia [official website] on Tuesday ordered [opinion, PDF] cigarette manufacturer Philip Morris, Inc. [corporate website] to issue public corrective statements after decades of concealing the health risks and addictive qualities of cigarette smoking. The US Department of Justice (DOJ) [official website] filed suit against the company in 1999 alleging violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) [Cornell LII backgrounder]. The court held in 2004 that Philip Morris had "knowingly and intentionally" conspired to defraud smokers and potential smokers "for purposes of financial gain ... [by] repeatedly, consistently, vigorously" and falsely denying adverse health effects and addictive qualities in public despite the company's own "massive" collection of scientific research confirming otherwise. After the US Court of Appeals for the District of Columbia Circuit [official website] affirmed in 2009, Judge Gladys Kessler on Tuesday required that the company must issue approved corrective statements to be published in newspapers and disseminated through television advertisements, retail displays and corporate websites. The order includes statements such as: "Here is the truth: Smoking kills, on average, 1200 Americans. Every day" and "[m]ore people die every year from smoking than from murder, AIDS, suicide, drugs, car crashes, and alcohol, combined." Kessler also recommended that the parties meet with a Special Master to reach an agreement regarding this issue by March 1, 2013.

Tobacco labeling and advertising have been litigated for years. The US Court of Appeals for the District of Columbia Circuit ruled in August that tobacco companies do not need to print graphic warnings [JURIST report] of the dangers of smoking on cigarette packages. In a 2-1 decision, the DC Circuit struck down a Food and Drug Administration regulation that requires tobacco companies to display graphic images such as a man smoking a cigarette through a hole in his throat. Also in August, the Supreme Court of New Hampshire revoked class action status [JURIST Report] in a lawsuit challenging the labeling of "light" cigarettes. In July the US Court of Appeals for the Second Circuit struck down [JURIST report] a New York City Department of Health regulation requiring stores to display graphic anti-tobacco ads where tobacco products are sold.




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Federal appeals court upholds New York concealed-carry law
Peter Snyder on November 28, 2012 12:10 PM ET

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[JURIST] The US Court of Appeals for the Second Circuit [official website] on Tuesday held [opinion, PDF] that New York can continue to require residents who seek to carry a concealed weapon to obtain a special license. The plaintiffs sought injunctive relief from a New York handgun law requiring licensing officials to have applicants prove "proper cause" to obtain licenses to carry handguns for self-defense. The plaintiffs, citing the US Supreme Court [official website] decision in District of Columbia v. Heller [opinion, PDF; JURIST report], contended that the Second Amendment guarantees them a right to possess and carry weapons in public to defend themselves from dangerous confrontation, and that New York cannot constitutionally require them to demonstrate proper cause to exercise that right. The appeals court upheld the New York law, holding that Heller only addressed carrying handguns inside the home and left the issue of carrying guns outside the home unanswered. In their opinion the judges stated, "New York determined that limiting handgun possession to persons who have an articulable basis for believing they will need the weapon for self-defense is in the best interest of public safety and outweighs the need to have a handgun for an unexpected confrontation."

A number of Second Amendment guns control cases have been percolating in the courts throughout the country. In July the state of Florida stated that it would appeal the US District Court for the Southern District of Florida [official website] ruling that struck down [order, PDF] a Florida law barring doctors from discussing the dangers of gun ownership with patients. In March the US District Court for the District of Maryland [official website] ruled [JURIST report] that a Maryland law which limited individuals' rights to obtaining a permit by requiring a "good and substantial reason" was unconstitutional. In June 2010, the US Supreme Court ruled in McDonald v. Chicago [opinion; JURIST report] that the Second Amendment applies to states and municipalities as well as the federal government, thereby overturning Chicago's ban on handguns and raising considerable uncertainty about what amount of regulations of firearms was permissible.




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Nokia files suit to ban BlackBerry sales
Sung Un Kim on November 28, 2012 11:55 AM ET

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[JURIST] Nokia announced Wednesday that it filed litigation against Research In Motion (RIM) [corporate websites], the Canadian parent company of BlackBerry, in courts in the US, UK and Canada to block sales of BlackBerry smartphones. The move came after a Swedish arbitrator's decision that ruled in favor of the Finnish company in a breach of contract case. Nokia is seeking to enforce [Reuters report] the decision. The arbitrator held that the Canadian company, which uses Nokia's wireless local access network (WLAN) technologies in its BlackBerry smartphones, is obligated to pay royalties if it desires to continue to utilize the technologies at issue. Nokia and RIM entered into a license agreement covering cellular patents in 2003, but in 2011 RIM unsuccessfully sought to extend the license to WLAN patents in the Stockholm Chamber of Commerce. Specific dates of when the courts will hear the cases are still unknown.

Litigation involving smartphone technologies have become more common throughout the globe. The most significant example is the battle between Samsung and Apple [corporate websites]. Earlier this month, a judge for the US District Court for the Northern District of California [official website] ruled that Apple and Samsung may each pursue additional patent infringement claims against the other, allowing each company to add devices brought to market after the original lawsuit was filed in February. In October the Dutch Rechtbank's-Gravenhage [official website] court ruled that Samsung did not infringe [JURIST report] on an Apple software patent. In the same month, a UK court also ruled that Samsung did not infringe [JURIST report] on an Apple design patent. In the same time frame Apple appealed [JURIST report] a Tokyo District Court ruling which dismissed the company's claim that Samsung had infringed on its patents. At the beginning of October, the US Court of Appeals for the Federal Circuit [official website] reversed an injunction [JURIST report] against Samsung that prevented it from selling its Galaxy Nexus product. Earlier in August, Apple won a $1.05 billion judgment [JURIST report] in the Northern District of California against Samsung involving other patent infringements.




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Gay men sue 'conversion therapy' group for fraud
Keith Herting on November 28, 2012 11:30 AM ET

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[JURIST] Four gay men filed suit on Tuesday against a conversion therapy group in New Jersey which had promised to make the men straight. The suit [complaint, PDF], the first of its kind in the US, alleges that Jews Offering New Alternatives for Healing (JONAH) [official website], a company which claims it can "cure" homosexuality though scientific means, has defrauded those who have employed their services. The claim was brought under New Jersey's Consumer Fraud Act [text, PDF] which protects people from "unconscionable commercial practice." Lawyers for the Southern Poverty Law Center (SPLC) [advocacy website] have joined the men to support their action against conversion therapy and issued a statement [press release] which includes quotes from the American Psychological Association (APA) [official website] that claims that conversion therapy can "create an environment in which prejudice and discrimination can flourish."

The practice of conversion therapy has come under scrutiny lately. Last month California became the first state to enact a law banning conversion therapy [JURIST report]. That bill [SB 1172; Senate backgrounder, PDF] was approved by the California State Assembly at the end of August and by the California Senate [JURIST reports] in May. Supporters of the bill asserted that the underlying reason for the legislation is that homosexuality is not a disease and that therapies to reverse homosexuality were found to have detrimental effects on minors' physical and mental health, leading to suicides and substance abuse. Conversely, groups such as the National Association for Research and Therapy of Homosexuality (NARTH) [advocacy website] voiced their opposition, arguing that most of the facts relied on in the bill are generalizations and loose assertions. According to some experts, California's efforts to pass the ban on sexual orientation therapy have highlighted a need for better gender identity standards [JURIST op-ed].




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Women sue Defense Department over combat exclusion
Keith Herting on November 28, 2012 10:32 AM ET

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[JURIST] Four female service members filed suit [complaint, PDF] Tuesday against the US Army and the Department of Defense [official websites] to end a policy which bars women from combat units and related posts. The suit, filed in the US District Court for the Northern District of California [official website], was also joined by the Service Women's Action Network (SWAN) [advocacy website] as plaintiffs. The women claim a 1994 combat exclusion policy which denies women access to any position "below the brigade level whose primary mission is to engage in direct combat on the ground," has limited the potential of women's careers and is a violation of the Fifth Amendment's Equal Protection Clause. According to the suit:
Of the women who have been deployed since September 11, 2001, 85 percent reported serving in a combat zone or in an area where they drew imminent danger pay or hostile fire pay, and nearly half reported being involved in combat operations. Many of those women have served in combat with distinction. But they have been deprived of the training, opportunities, and recognition they deserve because, under the combat exclusion policy, they cannot "officially" be assigned to ground combat units.
The women believe a court order banning the policy excluding women from combat roles will increase recruitment, field safety and general equality.

This is the second suit [JURIST report] brought this year by female service members challenging the combat exclusion policy. Last year a US military panel, the Military Leadership Diversity Commission, recommended [JURIST report] that women be allowed to serve on the front lines of combat. Their report said that integration of women into combat forces would have no ill effects and recommended a "time-phased" approach to the implementation of new combat policies that would create additional career options for women that include "direct ground combat." These recent suits to allow women into combat roles come on the heels of another civil rights push in military policy-last year's repeal of the controversial "Don't Ask Don't Tell" policy (DADT) [10 USC § 654; JURIST news archive]. Last year Australia became the fourth nation [JURIST report] which permitted women to serve in combat roles.




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Arizona appeals injunction on Planned Parenthood defunding bill
Matthew Pomy on November 28, 2012 10:07 AM ET

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[JURIST] Arizona has appealed a district court ruling that granted an injunction to the enforcement of a public funding law [HB 2800, PDF] that would prohibit public funding from going to clinics that provide abortions, which would effectively defund Planned Parenthood Arizona [advocacy website]. Arizona is asking the US Court of Appeals for the Ninth Circuit [official website] to lift the injunction [AP report] to ensure that no public funding is used to finance abortion. However, the US District Court for the District of Arizona [official website] granted the injunction because that the bill harms women who rely on Planned Parenthood facilities for care that doesn't include abortions.

Arizona is currently facing multiple lawsuits challenging the constitutionality of recently passed abortion restrictions. The district court injunction was granted [JURIST report] in October. In September, a federal court issued an emergency injunction against an Arizona law that prohibits abortions after 20 weeks into a pregnancy except for in medical emergencies, which was challenged [JURIST reports] by the Center for Reproductive Rights and the American Civil Liberties Union of Arizona [advocacy websites] in July. The law restricting funding to abortion clinics was signed by Governor Jan Brewer in May [Reuters report], while the law banning abortions after 20 weeks of pregnancy was signed in April [JURIST report].




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Federal appeals court denies Alabama request to reconsider immigration ruling
Maureen Cosgrove on November 28, 2012 10:04 AM ET

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[JURIST] The US Court of Appeals for the Eleventh Circuit [official website] on Tuesday denied a request [order, PDF] by the state of Alabama to reconsider its August ruling partially striking down [JURIST report] the state's immigration law [HB 56, PDF]. The original challenge was brought by advocacy groups, including the Hispanic Interest Coalition of Alabama (HICA) [advocacy website], and individual plaintiffs. The court did not provide any reasons for denying the rehearing en banc. The federal government previously challenged the Alabama immigration law, and Alabama state officials petitioned [press release] the appeals court in September to reconsider its ruling [JURIST report] after a three-judge panel rejected provisions making it a crime for undocumented immigrants to work or solicit work, imposing criminal penalties on persons who rent property to illegal immigrants and requiring state officials to check the immigration status of children in public schools. The court denied the state's request [JURIST report] to rehear the government's challenge of the law in October. The court ultimately upheld [opinion, PDF] several provisions, including one allowing police officers to check the immigration status of persons suspected of a crime.

Immigration law [JURIST backgrounder] has became a hot button issue over the past few years as many states have passed laws giving state and local officials more power to crack down on illegal immigration. Earlier this month, a judge for the US District Court for the District of South Carolina [official website] upheld [JURIST report] part of South Carolina's controversial immigration law [SB 20, materials] that permits law enforcement officials to detain motorists on the side of the road for a "reasonable amount of time" while the officer checks the driver's immigration status. The US Court of Appeals for the Ninth Circuit [official website] in September denied a request for a new injunction against a controversial provision of Arizona's immigration law [SB 1070, PDF] which requires law enforcement officials to check the immigration status of persons they stop or arrest if there is a reasonable suspicion that the person is in the US illegally. In August the US Court of Appeals for the Third Circuit [official website] again heard arguments [JURIST report] on two anti-illegal immigrant laws enacted in 2006 by the city of Hazleton, Pennsylvania, which deny permits to businesses that employ illegal immigrants and fine landlords who extend housing to them.




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UN rights commissioner concerned about Colombia military justice reforms
Matthew Pomy on November 28, 2012 9:24 AM ET

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[JURIST] A spokesperson for the UN Office of the High Commissioner for Human Rights (OHCHR) [official website] on Tuesday expressed serious concern [text] regarding Colombia's proposed constitutional reform to their military justice system. The proposed reform seeks to alter the scope of Colombia's military criminal justice system. Should the proposal be adopted, the investigations and trials of military personnel suspected of war crimes and arbitrary detention will fall under the the scope of the military justice system. Spokesperson Cecile Pouilly claims this will "seriously undermine previous efforts undertaken by the Colombian Government to ensure that human rights violations, allegedly committed by members of the Colombian military and police forces, are duly investigated and perpetrators held to account." While she admits the proposal specifically excludes "crimes against humanity and most gross human rights violations", the fact that the military will be responsible for determining the specific crimes is another concern. Pouilly further emphasized the Colombian government should reconsider the reform in the interest of preserving accountability for military personel who commit human rights abuses.

Colombia has drawn attention from UN rights bodies several times recently. In October UN experts urged [JURIST report] Colombia to reconsider this constitutional reform. In August UN Special Rapporteur on the rights of indigenous people James Anaya [official website] also called upon [JURIST report] the government of Colombia to advance its negotiations with indigenous authorities in northern Cauca regarding the military presence in the area, as well as other pressing issues. Last December the representative to Colombia for the OHCHR called for a peaceful solution [JURIST report] to the country's ongoing armed conflict involving hostages held by paramilitary rebels.




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Egypt courts suspend work to protest presidential decree
Maureen Cosgrove on November 28, 2012 8:59 AM ET

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[JURIST] The Egyptian Court of Cassation on Wednesday suspended work until President Mohammed Morsi [BBC profile; JURIST news archive] rescinds a decree he issued [JURIST report] last week that removes judicial review of his actions and vastly expands his power, according to Egypt's state television. In addition to these highest appeals courts, the lower appeals courts have resolved to suspend work [AP report] as well. The nation's Supreme Constitutional Court also announced its discontent with Morsi's decree on Wednesday, calling the move an attack on the judiciary [Reuters report]. Morsi's decree extends protection from judicial review to the lower chamber of parliament and to a panel charged with drafting the nation's new constitution. These legislators are largely composed of Muslim Brotherhood (MB) [party website, in Arabic; JURIST news archive] members and Islamists.

Tension between Egypt's judiciary and the administration has persisted despite the overthrow of former president Hosni Mubarak last year. Morsi agreed to meet with the judges [JURIST report] earlier this week to discuss the decree. In August a lawyer in Egypt filed an appeal challenging a declaration by Morsi granting himself complete legislative and executive power [JURIST reports]. In July, a few days after he was sworn in, Morsi issued a decree [JURIST reports] calling the Egyptian parliament back into session, despite a previous ruling by the country's Supreme Constitutional Court [official website] dissolving parliament after finding that one-third of its members were elected illegally. The court suspended Morsi's decree two days later, after which Morsi vowed that he would respect the ruling [JURIST reports]. Days before its dissolution, the Egyptian parliament elected a new constitutional council after lawmakers finally reached an agreement [JURIST reports] on the political composition of the council. In April the country's Administrative Court temporarily suspended [JURIST report] the work of the Egyptian Constituent Assembly after ruling in favor of a lawsuit challenging the constitutionality of the formation of the panel.




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Supreme Court hears arguments on ERISA
Julia Zebley on November 28, 2012 8:08 AM ET

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[JURIST] The US Supreme Court [official website] heard arguments [day call, PDF] Tuesday in US Airways, Inc. v. McCutchen [transcript, PDF; JURIST report] on the Employee Retirement Income Security Act (ERISA) [materials]. The court is considering whether § 502(a)(3) of ERISA is susceptible to equitable principles of relief even where the plan's terms give it an absolute right to full reimbursement. An attorney for US Airways argued that ERISA allows fiduciaries of the plan to seek appropriate equitable relief and that the agreement plan signed by all parties, regardless of what it says, controls and is appropriate. The respondents argued that subrogation [backgrounder] agreements made for claims involved in the plan must be considered separate of the plan and ahead of it. "Reimbursement claims that are based on an express subrogation agreement are subject to equitable principles of subrogation. In equity, these claims were governed, according to the same principles that governed every other type of subrogation."

The case [SCOTUSblog backgrounder] concerns a former employee of US Airways, James McCutchen, who was injured in a car accident. McCutchen, as an employee, had a self-funded health plan that ended up paying out approximately $66,000 for his injuries. Through insurance payouts and a settlement from the negligent driver, even with a hefty attorney's fee levied against him, McCutchen ended up approximately $66,000 ahead. US Airways then demanded reimbursement of its health plan's payout, since McCutchen's medical care was covered by other insurance options, based on language in the plan itself. The US Court of Appeals for the Third Circuit, in defiance of several other circuits held [opinion] that "appropriate equitable relief" did not include revoking the payment to McCutchen.




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UN panel urges countries to ban female genital mutilation
Blake Lynch on November 28, 2012 7:39 AM ET

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[JURIST] The Third Committee [official website] of the UN General Assembly on Monday approved a resolution [press release] calling for a global ban on female genital mutilation (FGM). The committee's resolution calls on the UN's 193 member countries to enact and enforce legislation to protect women and girls from female circumcision and other genital mutilation procedures and to end impunity for violators. The resolution recognized "that female genital mutilations were an irreparable, irreversible abuse of the human rights of woman and girls, as well as a threat to their health." The resolution would also designate February 6 as the International Day of Zero Tolerance for Female Genital Mutilation. The resolution will be considered [AP report] by the wider UN General Assembly in December, and with the support of 110 sponsors, approval of the resolution is expected.

As many as 140 million women and girls worldwide have undergone some form of FGM, which is defined by the World Health Organization (WHO) [official website] as "all procedures involving partial or total removal of the external female genitalia or injury to the female genital organs for nonmedical reasons." In February the UN released its annual report on trends in FGM, revealing that approximately 2,000 African communities have renounced the practice [JURIST report] since last year. In 2010 Human Rights Watch [advocacy website] called on the government of Iraqi Kurdistan [JURIST report] to outlaw FGM and to develop a comprehensive legislative plan to reduce the practice in the region. In 2009 Uganda unanimously outlawed FGM [JURIST report] and imposed harsh penalties on anyone who conducts the procedure.




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