Legislative and Regulatory Update
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In This Issue [No.103] November 10, 2004
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Cases
Source: Westlawinternational.com
Education: Videotapes of classroom were education records
The videotapes of a teacher's classroom were "education records" within the meaning of the Family Educational Rights and Privacy Act and the Kentucky Family Educational Rights and Privacy Act, which contain an exception to the rule against disclosure of "education records" when a teacher with a legitimate educational interest requests the record. Furthermore, the teacher's request for the videotapes of her classroom should not have been considered as made by a member of the public, but, rather, should have been judged in light of her position as a teacher. The teacher was present in the classroom when the videotapes were recorded, and since she was present, there was no confidentiality issue.
Medley v. Board of Educ., Shelby County
Labor and Employment: Compensatory damages of $1,250,000 awarded on former employee's emotional distress claim
A district court awarded $1,250,000 in compensatory damages to a former employee on her claim against her former employer for intentional infliction of emotional distress. The former employer took away the former employee's sense of self-esteem. She formerly was an outgoing, confident, self-assured, and professionally successful individual, but had to a large degree lost each of those attributes, due to humiliating and degrading sexual harassment, which her supervisors repeatedly failed to stop despite her requests for help. Punitive damages were also justified on that claim, with the amount to be determined later. In addition, the court awarded the former employee $1,004,374 in front pay on her Title VII claim.
Pollard v. E.I. Dupont de Nemours, Inc.
Education: School district plan under which early retirement incentives declined each year violated ADEA
A school district's early retirement incentive program (ERIP), under which incentive payments for early retirement declined each year after the age of 55, violated the Age Discrimination in Employment Act (ADEA). The school district argued that the ERIP was intended to provide early retirees a means to pay for family health insurance until Medicare began at age 65. However, the ERIP offered incentive benefits that differed in amount for eligible employees based solely on age. Furthermore, the ERIP did not provide payments that commenced at retirement and terminated at the age of Medicare availability, so as to conform to the ADEA's exception for bridge payments.
Overlie v. Owatonna Independent School Dist. No. 761
Government: County elections board was enjoined from certifying winners of election
Voters were likely to prevail on the merits of their claim that a county elections board's refusal to tally their absentee ballots violated their Fourteenth Amendment rights. Thus, they were entitled to a preliminary injunction barring the board from tallying ballots and certifying the winners of the elections without including the contested absentee ballots. The board had improperly sent ballots to the voters as the result of its misinterpretation of a court order.
Hoblock v. Albany County Bd. of Elections
Government: Independent candidates could appear on ballot despite party nomination in another state
Independent candidates for United States president and vice president who had been nominated by minor political party to appear on ballot in another state were deprived of First Amendment right to freedom of association as result of application of "sore loser" statutes. These statutes prohibit nomination papers if the candidate has filed a nomination petition for any public office for the ensuing primary or has been nominated for any such office by nomination paper previously filed. The Commonwealth never intervened and never offered any reason to justify its interest in prohibiting candidates from running as independents in the Commonwealth since they had been nominated by minor party in other states.
In re Nader
Energy and Utilities: FERC properly based mandatory licensing jurisdiction on finding of river's navigability
A finding by the Federal Energy Regulatory Commission (FERC) that a river was "navigable," for purposes of the Federal Power Act, was supported by substantial evidence, and thus FERC's assertion of mandatory licensing jurisdiction over a 19th century hydroelectric project on the river was proper. A FERC-sponsored canoe expedition on the river was accomplished with few problems, relatively easy portages, and a minimum of difficulty.
Knott v. F.E.R.C.
Government: Election statute governing withdrawal of candidates was unconstitutional
An election statute governing the withdrawal of candidates was declared unconstitutional. The statute, which provided that the "The Department of State may in its discretion allow such a candidate to withdraw after the 42nd day before an election" if the candidate gives written notice that he or she will not accept the office, was an unconstitutional delegation of legislative power to the Department of State, as it contained no standards to guide the Department in the exercising its discretion. As the unconstitutional sentence could not be severed from the rest of the subsection, the entire subsection was unconstitutional.
Department Of State, Division Of Elections v. Martin
E-commerce: Complaint properly alleged facts regarding Internet retailer's subsidizing of customer discounts
Shareholders who brought a class action against an Internet retailer, based on purported securities fraud, properly alleged material facts regarding the level of outside manufacturer participation in the corporation's offering of customer discounts, as required to state a claim under Rule 10b-5. The complaint averred that the corporation misled the investing public by omitting the degree and extent to which the corporation was funding the discounts.
In re Priceline.Com Inc. Securities Litigation
Education: Professor failed to show that university's proffered reasons were pretextual so as to prevail on his gender discrimination claim
Under Pennsylvania law, a state university articulated legitimate, non-discriminatory reasons for not offering a male professor a tenure track position as a student teacher supervisor. The university's reasons were that the professor lacked an established record of scholarship, failed to express an interest in future scholarly growth, and had no grant writing experience. The professor failed to show that the university's proffered reasons were pretextual so as to prevail on his gender discrimination claim.
Cummings v. Com
Immigration: Deposed witnesses could be deported before alien smuggling trial
The government did not violate the right of defendants, charged with alien smuggling, to confront witnesses, when material witnesses were deported prior to trial, following taking of their depositions. The defendants failed to make the required showing of a reasonable likelihood that the additional testimony of witnesses would have affected the judgment of the trier of fact.
U.S. v. D-1 Sharif
Government: County employee was entitled to reinstatement after being effectively dismissed for disability
The evidence demonstrated that a county employee was effectively "dismissed for disability" from his position as a detention specialist at the Sheriff's Department, and was thus entitled to reinstatement as of the day following his dismissal, pursuant to the statute requiring reinstatement of a county employee who was dismissed for disability after the county employees retirement board's decision that the employee was not qualified for retirement disability. It was not the employee's own, self-imposed work restrictions based on his thumb injury that prevented his return to work during a six-year absence, but rather, it was a statement from the Sheriff's Department that he could return to work only to the same assignment in the same location, where it had already been demonstrated that he was unable to work without further injury.
Stephens v. County of Tulare
Immigration: Court of Appeals lacked jurisdiction to decide whether aliens were eligible for cancellation of removal
The jurisdiction-stripping provisions of the Immigration and Nationality Act (INA) deprived the Court of Appeals of authority to determine, on a petition to review a removal order of the Board of Immigration Appeals (BIA), whether a conviction of a "drug trafficking crime," which will render an alien ineligible for cancellation of removal, included a state drug crime that qualified as felony under state law but was only a misdemeanor under federal law. Therefore, in the interests of justice, the Court of Appeals would treat two petitions for review from aliens who had been convicted of the state felony of cocaine possession as petitions for habeas relief and would transfer the petitions to the district court. Habeas review remained available of the question whether a state drug felony that was only a misdemeanor under the federal Controlled Substances Act (CSA) was a drug-trafficking crime under the INA.
Yanez-Garcia v. Ashcroft
Legal Services: Client should have discovered claims against attorney on last day of representation
A client knew or should have known, for purposes of the discovery rule which delays the commencement of the limitations period, that he had claims against his attorney for breach of contract and personal injuries, relating to the attorney's representation of the client in a criminal appeal and in other post-trial matters, on the last day the attorney represented the client. At such time, the client was dissatisfied with the attorney's performance, he knew the Supreme Court had affirmed his convictions, he believed the $7,500 fee he had paid the attorney to meet once with the Attorney General to discuss a new trial motion was excessive, and he felt he had been "scammed" out of another $5,000 fee for the attorney's attempt to obtain a stay of sentencing while the client completed treatment for cancer.
Majstorich v. Gardner
Government: City's notice of an ordinance satisfied due process requirements
A city's full compliance with the statutory notice requirements of an ordinance authorizing the sale of the municipal electrical power distribution system, while retaining a repurchase option, was sufficient to satisfy due process requirement of "adequate notice." Sufficient information was provided to put the voters on notice and to permit them to initiate a referendum to oppose the ordinance.
Low v. City of Monticello
Torts: Private motor carrier was not liable for negligent acts of for-hire motor carrier
A private carrier under the Motor Carriers of Property Permit Act (MCPPA), which operated under a motor carrier permit issued by the Department of Motor Vehicles, was not liable for the negligent acts of a for-hire motor carrier of property that it hired as an independent contractor to transport its goods. The private carrier that used the highways only to transport its own products incidental to its business was not subject to the same level of regulation as that of "for-hire" carriers who used the public highways as a business, and neither case law, public policy, nor the legislative intent of the MCPPA supported imposing the non-delegable duty rule on private carriers operating under a permit.
Hill Bros. Chemical Co. v. Superior Court
Government: Government tort claim was sufficient to give agency notice of all theories of wrongful termination
A dismissed government employee was not precluded under the Tort Claims Act from asserting, in a complaint for wrongful termination, theories of illegal motivation that were not specified in the required notice of claim, inasmuch as his claim was sufficient to give the government agency notice of all theories of wrongful termination. The employee stated the date and place of his termination, named those officers and agents he believed responsible, and generally stated the circumstances of his termination. Although the claim did not specifically assert that his termination violated the public policies favoring free speech and opposition to public employee conflicts of interest, those theories did not represent additional causes of action and therefore did not need to be separately presented in the claim.
Stockett v. Association Of California Water Agencies Joint Powers Ins. Authority
Labor and Employment: Magnuson-Moss Act did not preclude arbitration of warranty dispute
The provisions of the federal Magnuson-Moss Warranty Act (MMWA) did not preclude the enforcement of a binding arbitration clause in a warranty dispute between a computer purchaser and a computer manufacturer. Federal and state statutes manifested a clear public policy preference favoring arbitration. Nothing in the text of the MMWA or its legislative history prohibited binding arbitration. A Federal Trade Commission (FTC) regulation seeking to prohibit binding arbitration was not binding given the strong federal public policy promoting arbitration of disputes.
McDaniel v. Gateway Computer Corp.
Military Law: Federal military detainee was not entitled to medical evaluation to determine mental competency
A United States District Court has determined that a detainee in the military detention center in Guantanamo Bay was not entitled to an independent medical examination in order to determine his mental competency, whether such competency were to be considered in the context of the detainee's ability to participate meaningfully in his defense in any future criminal proceeding, or in the context of his pending habeas petition. The district court held that the constitutional due process right to a determination of competency did not apply, inasmuch as no criminal charges had as yet been brought against the detainee, who was 15 years of age at the time of his confinement, and that such protections did not extend to habeas proceedings in any event.
O.K. v. Bush
Government: Laches barred election claims regarding voter registration and requirements for petition circulators
The doctrine of laches barred claims by representatives of Ralph Nader regarding voter registration and regarding the constitutionality of residency requirements for nominating petition circulators, and thus the Secretary of State was not required to declare as valid Mr. Nader's candidacy for president. First, Mr. Nader's representatives waited at least 31 days after the boards of elections invalidated 8,009 signatures to challenge those decisions on the basis that there was a backlog of voter registrations, and failed to even seek information about the backlog until the eve of the Secretary of State's hearing regarding a protest against Mr. Nader's nominating petition. Second, Mr. Nader's representatives were circulating part-petitions for his candidacy about four months before they challenged the residency requirements for petition circulators. Noting that Mr. Nader's representatives had been more expeditious in bringing similar challenges in other states, the court found the delays unreasonable. Furthermore, the delays were prejudicial to the Secretary of State, who was forced to defend under an accelerated schedule, the election protesters, who would have been unable to file a statutory protest if the challenge was successful, and the state's election preparations in general.
Blankenship v. Blackwell
Taxation: Revenue Department was not estopped from denying claim for tax refund filed by renowned movie actors
The New Mexico Taxation and Revenue Department was not estopped from denying, on grounds that the claim was stale, an income tax refund filed by Val Kilmer and Joanne Whalley, even if the head of the Department's Income Tax Section misinformed their CPA of the Department's policy on protective refund claims, and, after the Department failed to process the claim because it was lost, other Department employees apologized to the CPA and stated that the claim would still be processed. Kilmer and Whalley initially filed a protective claim when California authorities determined that Whalley, who had filed for divorce, was a California resident for part of the year in question. The New Mexico Court of Appeals held that despite the Department's mistakes, the CPA was a tax professional who had access to the New Mexico statute placing a deadline on tax refund protests when the Department failed to act.
In re Protest of Kilmer
Transportation: Missouri company that performed work for truck seller had sufficient minimum contacts with Indiana
A Missouri company that performed axle work on a truck for an Indiana truck seller had sufficient minimum contacts with Indiana for purposes of exercising specific personal jurisdiction over the company without violating the Due Process Clause in the seller's Indiana small-claims action for breach of contract. The company performed work specifically for the seller. Also, the company had full knowledge that the seller was an Indiana corporation. The dissent maintained that the seller purposefully availed itself of the privilege of doing business in Missouri, rather than the other way around, when it contacted a Missouri truck seller, asked that seller to ask the company to install appropriate axles, and retrieved the truck from the company's Missouri facility.
Pozzo Truck Center, Inc. v. Crown Beds, Inc.
News
Ban on serving food at wedding receptions held in public places
A ban on serving food at wedding functions in public places had been imposed in 1997. Exceptionally, only serving of tea or soft drinks had been allowed. Recently, a three-judge bench of the Pakistan Supreme Court has upheld this ban. Further the Court also said that such a ban was not against the Islamic teachings and aimed at discouraging extravagant display of wealth by the concerned parties. But they have permitted the serving of one course of food during weddings in the province of Punjab. Further an exception has been carved out, whereby, this law would not apply to the serving of food in a house, primarily for the consumption by the members of the family celebrating the marriage or the house-guests.
Microsoft to pay $536m to software maker Novell
According to statistics, Microsoft is to pay $536m (£289m) to software maker Novell to resolve a lawsuit over alleged anti-competitive practices. This has resulted as a consequence of private mediation between the parties. The case centred on Novell's Netware operating system – which, was once marketed as a rival to Microsoft's Windows. But Novel would continue pursuing a similar case over claims from the mid-1990s, where its WordPerfect software was in competition with Microsoft's Office.
Media giant Family all set to stay in control
Media giant News Corp is all set to make sure that the Murdoch family (owning about 29.5% of the firm) stays in control and further, to ward off any possible takeover bid. As part of there plan they are following the “poison pill” defence by allowing shareholders to increase there stakes, if anyone bought more than 15% of the company. This move comes after the US cable group Liberty Media moved to raise its holding from 9% to 17%.
Air pollution caused by traffic and factories may cause heart disease
A recent study conducted at the University of Southern California has found that the air pollution caused by traffic and factories might be a cause for heart diseases, as the pollution causes the narrowing of arteries - in a similar way to smoking. Further by using ultrasound, the researchers measured the thickness of the inner lining of the carotid artery in the neck. Arteriosclerosis, the building-up of fatty materials in the arteries that reduces blood flow, is already linked to smoking, diabetes and obesity.
EU files complaints against US, Canada
The European Union has filed a complaint, with the World Trade Organization (WTO) against the US and Canada, for failing to lift sanctions against the EU, over the ban on importing hormone-treated beef. In an earlier decision in 1998, the WTO had ruled that the EU's beef ban was illegal, and the US and Canada responded with $125 million in sanctions against European imports. The EU had then passed a new legislation, which it claims is now in compliance with WTO rules. The US and Canada maintain that the ban is still illegal, and unsupported by scientific proof. EU officials in Geneva requested "formal consultations" with the two countries. If the countries cannot resolve the issue with the 60-day talks, the EU plans to start a dispute proceeding.
General Electric (GE) sells majority stake to two private equity firms
GE was one of the first American companies to outsource its back-office work to India in an effort to save costs. Recently, General Electric (GE) has sold off a majority stake in its Indian outsourcing arm, GE Capital International Services (GECIS), for $500m, to two private equity firms, namely General Atlantic Partners and Oak Hill Capital Partners. In India, GECIS is considered as a pioneer in the lucrative global outsourcing industry. This deal gives both the firms a 60% stake in GECIS. According to experts, India has a large pool of English-speaking skilled workers providing expertise in services such as accounting, insurance, claims processing and information technology and are willing to work for lower wages.
Two convicted for spying in Britain
Certain Chinese officials working in Hong Kong have confirmed that two former colleagues have been jailed, after being convicted of spying for Britain. The two said officials namely, Wei Pinguan, working for Beijing's de-facto embassy in Hong Kong before its 1997 handover to China, and Cai Xiaohong, a former secretary-general of Beijing's liaison office in Hong Kong, have been jailed for over 15 years. Further, the Chinese Government Liaison Office in Hong Kong has also said that Wei would spend the rest of his life in jail after being convicted by a court in the neighbouring province of Guangdong. In addition, his property and possessions have also been confiscated.
China to punish government officials over the sale of fake milk powder
Last April, such a scandal broke out in the Eastern province of Anhuil, wherein two officials were jailed for more than two years, for failing to investigate or take necessary action after receiving a complaint about the milk from a parent whose child had died. Recently, China is all set to punish 97 government officials, over the alleged sale of fake milk powder that caused the deaths of at least 13 babies. The said officials have been accused of "not discovering or fully investigating the problem”. Further, each person’s precise role would be identified, before any punishment was levied on him. One shopkeeper was jailed for eight years for selling the substandard milk, which has almost no nutritional value.
Expulsion from school over breaking French Law
Recently, three Sikh boys have been expelled from a school outside Paris for breaking a French law banning pupils from wearing religious headgear in school. The said boys - aged 14, 17 and 18 - were expelled after months of debate about whether an under-turban, or keski, was acceptable under the new law. These boys had been taught separately since returning to school in September. Reportedly, they are the first Sikhs punished by the new law, although several Muslim girls have already been expelled.
WHO warning countries against likely shortage of malaria drugs
The World Health Organisation (WHO) has recently started warning some countries, as they are likely to face a shortage of malaria drugs, because of the sharp increase in demands. The said medicines, which are derived from a Chinese herb, are used to treat the deadliest form of the disease. Therefore, the need for an increase in the availability of a second-line treatment. Now over 10 million courses are wanted and by next year this is expected to rise to over 60 million. The WHO is promising to help any country facing a shortage, but is recommending that availability of second-line treatments like quinine should be increased. Although more difficult to use, it's effective against the most deadly form of malaria.
US Federal Court has halted a trial at Guantanamo Bay
For the first time, the US Federal Court has halted the trial proceedings, also referred to as military commission proceedings at Guantanamo Bay, of a former driver for al-Qaeda leader, Osama Bin Laden. According to sources, the judge said it must first be determined whether Salim Ahmed Hamdan, from Yemen, was covered by the provisions of the Third Geneva Convention. This ruling effectively stops all proceedings against all charged Gitmo detainees, since the Combatant Status Review Tribunals before which they have appeared have been adjudged incompetent for POW status determinations, and therefore, the US government says it wants this ruling to be overturned.
Compensation paid to the September 11 victims
According to a recent report released by the Rand Institute for Civil Justice on Monday, the victims of the September 11 terrorist attacks have received $38.1 billion in compensation, mostly from insurance companies. The largest portion of the compensation went to New York City businesses, which has received $23.3 billion. Additionally, some lawsuits over the attacks are still in process.
Malicious prosecution proceedings initiated against fund
In a recent move, the charitable fund set up to honour Diana, is being sued by the US souvenir firm Franklin Mint, for malicious prosecution. As part of the compensation, the firm is claiming £14m ($25m). Currently, this case has been adjourned case for a future date. Earlier, in October, one of the judges had said that Franklin Mint could seek damages only after the fund failed in a legal bid to stop it selling Diana memorabilia. Later the fund froze its charitable donations due to the costly legal battle. The mementos sold by the US company included dolls and plates.
Child Pornography on a rise
According to a UN Conference held in Belgium, commercialization of the Internet has resulted into an explosion of child pornography. The delegates present at the conference have been warned that child pornography on the net has also led to traditional forms of child abuse like prostitution and child trafficking. As a consequence, Japan and South Korea have joined the US and Russia as the hosts of large numbers of child porn websites. Further, a website in Eastern Europe had been recently shut down, as it was found to be generating $2m a month from child porn.
Loopholes in the security system allowing easy access to all
According to sources, the Morgan Stanley website was allowing users to access account details after just entering the first digit of a credit card number. But, this shortcut only worked if the account holder had set up the computer to automatically save passwords. According to the guidelines issued by the Association for Payment Clearing Services (APACS), password saving should not be available on financial websites. And therefore, in accordance with these guidelines, Morgan Stanley has now disabled this facility. Auto-complete usually allows computer users to shortcut security checks, by saving data such as user id's and passwords.
Secondary Market Division
Model Listing Agreement for Listing of Debt Securities
Circular No: SEBI/CFD/DIL/CIR-39/2004/11/01 Dated 01.11.2004: The Securities Exchange Board of India vide its circulars dated 30th September 2003 and 22nd December 2003 had previously stipulated that an entity desirous of listing privately placed debt securities shall enter into a separate Listing Agreement with the Stock Exchanges. The SEBI vide the above circular notifies that henceforth listing of all debt securities irrespective of the mode of issuance i.e. whether issued on private placement basis or through public/rights issue, shall be done through a separate Listing Agreement and that all Stock Exchanges should henceforth list all debt securities through an Agreement prepared in line with the Model Listing Agreement
Foreign Institutional Investors
FII Investment in Debt Securities
Circular No : IMD/FII/16/2004 Dated 02.11.2004: The Securities Exchange Board of India vide circular no: IMD/FII/16/2004 Dated 02.11.2004 notifies that the Government of India has raised the cumulative debt investment limit for the FIIs/Sub-Accounts to US $1.75 billion from US $1 billion. In view of the above change, the Overall investment limit under the 70:30 route in dated Government securities and treasury bills has been raised from US $ 100 million to US $ 200 million and that the monitoring of the above investment limit will be on daily basis and the total outstanding position of all FIIs/SAs under 70:30 route in Government securities and treasury bills will be published daily on the SEBI website. Further, the FIIs/SAs are free to invest till the total investment reaches US $175 million. Thereafter, the FIIs/SAs will have to approach SEBI for prior approval of limit allocation which will be done on ‘first come-first serve’ basis.
Importability of Boric Acid
Circular No: 61/2004 Dated 28.10.2004: The Central Board of Excise and Customs vide Circular No: 61/2004 Dated 28.10.2004 notifies that after due consultations with the Department of Agriculture and Cooperation it has been decided that it is a precondition for import of Boric Acid that the importers of the same should register with the Central Committee (CIB & RC) Insecticides Board & Registration under the provisions of the Insecticides Act, 1968. In case Boric Acid is to be imported for an identified non-insecticidal use then such imports would be exempted from the requirements of registration provided a certificate of end use is issued by the concerned Administrative Ministry/Department of the Government of India.
Policy for Issuance of Guarantees Relating to Trade Credits for Imports into India
Circular No: A.P. (DIR Series) Circular No. 24 Dated 01.11.2004: The Reserve Bank of India vide the above circular notifies that it has been decided to give Authorised Dealer (AD) Banks permission to issue guarantees/LoUs/LoCs in favour of overseas supplier, bank and financial institution up to USD 20 million per transaction for a period up to one year for import of all non-capital goods permissible under Foreign Trade Policy (except gold) and up to three years for import of capital goods subject to prudential guidelines issued by Reserve Bank. The period of such guarantees/LoUs/LoCs has to be co-terminus with the period of credit, reckoned from the date of shipment. These amendments to trade credit policy will come into force with immediate effect and will be subject to review from time to time.
Export of Goods and Services Period of Realisation for Export Oriented Units
Circular No: A.P. (DIR Series) Circular No. 25 Dated 01.11.2004: The Reserve Bank of India vide the above circular advises member banks that following the New Foreign Trade Policy by the Government it has been decided that 100 per cent Export Oriented Units (EOUs) and units set up under the Electronics Hardware Technology Parks (EHTPs), Software Technology Parks (STPs) and Bio-Technology Parks (BTPs) Schemes would be allowed to realise and repatriate the full value of export proceeds within a period of twelve months from the date of export and that the existing guidelines relating to 100 per cent credit of foreign exchange earnings to EEFC account by the above units would continue as hitherto. This relaxation is available in respect of exports made on or after September 1, 2004 when the New Foreign Trade Policy was announced.
Exemptions of the Status Holder Certificate expiring on 31.03.2004
Policy Circular No: 8/2004-2009 Dated 04.11.2004: The Directorate General of Foreign Trade notifies that the last date for submission of application for renewal of the Status Holder Certificate has been extended from 31st October 2004 to 30th November 2004 and accordingly all the Status Holders who are eligible for renewal of the Status Holder certificate shall be granted all the benefits available to such Status Holders till 31st December 2004.
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