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Cases
Source:Westlawinternational.com
The
term "insulting" in an ordinance proscribing any indecent, insulting,
immoral, or obscene conduct in any public place did not give adequate
forewarning that referring to a person by a racial slur could rise to the level
of fighting words that can be proscribed constitutionally. Accordingly, the
Court of Appeals held that the ordinance was unconstitutionally vague as applied
to a defendant who was overheard referring to fellow restaurant patrons as
"spics."
People
v. Barton
Telephonic
search warrants are not legal in Mississippi. No rule permitting such a warrant
exists in Mississippi, and the state Constitution says nothing about such
warrants. In one case, evidence discovered during a search based on such a
warrant was admissible under the "good faith" exception to the
exclusionary rule. The Supreme Court, however, cautioned that officers and
judges would not henceforth be able to claim ignorance of the law in this regard
and thus would not be able to rely on the good faith exception.
This
decision may not yet be released for publication.
White
v. State
A state court determination, that admitting a
petitioner's plea allocution to arson in a subsequent trial for murder of an
arson victim, who died after guilty plea, did not violate due process, was
not contrary to or unreasonable application of clearly established Supreme
Court precedent. The failure to advise the petitioner that his plea to arson
might be used against him in subsequent prosecution did not render the plea
involuntary. The subsequent use of petitioner's plea allocution was not an
immediate or definite consequence of his plea. Due process did not require
the court or counsel to foresee the plea allocution might be used against
petitioner given years later and inform him of that possibility. Thus,
habeas relief was not available on claim.
Murden v. Artuz
The summary affirmance of an alien's removal
did not violate the alien's due process rights. Meaningful review of the
removability determination was not precluded by the brevity of the Board of
Immigration Appeals' (BIA) summary affirmance decision, and there was no
evidence that BIA member who reviewed alien's removal deviated from the
requirements of the regulations in determining whether alien's appeal could
be subject to the streamlining procedures.
Mendoza v. U.S. Atty. Gen.
The Vermont Department of Motor Vehicles was
not authorized, under the state statute providing that the Commissioner of
DMV "may" refuse to honor any vanity license plate
"request" that might be offensive or confusing to the general
public, to promulgate a regulation declaring certain categories of letter-
number combinations, such as those referring to ethnic heritage, as being
offensive. The legislature chose not to set forth categories of offensive
terms. The regulation authorized the rejection of requests for letter and
number combinations that were themselves inoffensive, but that belonged in
one of several designated categories or topics that included words with the
potential to offend. At issue was the Department's use of the regulation as
the basis for rejecting a request for a vanity license plate with the
letters "IRISH."
Martin v. State
The door-closing statute prevented the
nonresidents whose cause of action did not arise in state from joining the
class action against foreign corporations who allegedly sold defective
cotton seed. The statute excluded the class members who would otherwise have
had no access to the state courts via individual lawsuits. This was a matter
of first impression, and overruled cases framing the issue of the
door-closing statute as one of subject matter jurisdiction.
Bell v. Monsanto Corp.
An automotive parts dealer and a manufacturer
did not agree that the manufacturer would supply and the dealer would sell
both equipment and repair parts. Therefore, Louisiana's repurchase statute
requiring manufacturers to provide notice to distributors and an opportunity
to correct any alleged defect before terminating the contract for good cause
was not applicable. Rather, the parties only agreed that the dealer would
maintain a freestanding stock of generic automotive repair parts.
Lake Charles Diesel, Inc. v. General
Motors Corp.
A specific disclaimer in the parties'
confidentiality agreement, combined with the merger clause in their merger
agreement precluded any claim of reasonable reliance on the
extra-contractual representations made by the Massachusetts utility's
representatives, and therefore a New York utility could not establish a
valid claim under New York law for fraudulent inducement. The alleged oral
representations made during due diligence were disclaimed by the
confidentiality and merger agreements, and the merger agreement went on to
provide that the merger agreement and the confidentiality agreement were the
entire agreement between the parties and superseded all prior
understandings, both written and oral.
Consolidated Edison, Inc. v. Northeast
Utilities
Although the injunctive relief sought by a
neighborhood association, that of enjoining a city's alleged ongoing and
future violations of federal law governing lead-based paint abatement
activities, was contemplated by the Toxic Substances Control Act, the
additional relief requested went beyond the scope of relief afforded by the
Act, which only authorized citizen suits "to restrain" violations
of its substantive provisions. These additional remedies included the
medical monitoring of neighborhood residents allegedly exposed to lead
poisoning as a result of the city's alleged past violations, ordering the
remedying of past violations, and ordering the city to ensure that affected
residences were safe for human habitation.
Arbor Hill Concerned Citizens
Neighborhood Ass'n v. City of Albany, New York
The Air Force complied with the requirements
of National Environmental Policy Act in preparing a final environmental
impact statement (FEIS) to assist its determination as to whether to
implement training activities for combat bomber aircrews. The Air Force in
good faith objectively took a hard look at the environmental consequences of
the proposed plan and alternatives, the FEIS provided detail sufficient to
allow those who did not participate in its preparation to understand and
consider the pertinent environmental influences involved, and the FEIS's
explanation of alternatives was sufficient to permit a reasoned choice among
different courses of action.
Davis Mountains Trans-Pecos Heritage
Ass'n v. U.S. Air Force
The District Court's order approving the
government's redaction of a previously sealed court transcript before
unsealing it was warranted, in an action brought by former workers at a
classified Air Force facility for alleged violations of the Resource
Conservation and Recovery Act (RCRA). The Court compared the proposed
redacted version of the transcript with the unredacted version and found
that the redactions were consistent and classified, under the state secrets
privilege.
Kasza v. Whitman
Judicial review of a broad, pre-enforcement
due process challenge to Comprehensive Environmental Response, Compensation,
and Liability Act's administrative cleanup order enforcement mechanisms was
precluded. CERCLA's timing of review statute prohibited challenges to orders
of the Environmental Protection Agency. The constitutional challenge was not
one of the enumerated exceptions to CERCLA's prohibition against
pre-enforcement actions. Allowing pre-enforcement review of the facial and
as-applied constitutional challenges would frustrate congressional intent to
promote speedy environmental cleanup. Meaningful review would be available
after the cleanup action was concluded.
General Elec. Co. v. Whitman
The operator of a multistate restaurant chain,
under the trademark "WHATABURGER," was precluded by statutory
equitable defenses of acquiescence and estoppel from pursuing a counterclaim
of infringement by the owners of Virginia restaurants operating under the
mark "What-A-Burger." A representative of the chain had discussed
a possible acquisition of the Virginia restaurants in 1970, without
protesting the trademark similarity. The chain took no action to enforce its
mark over the intervening 32 years, during which time the Virginia
restaurant operators expanded the business.
What-A-Burger of Virginia, Inc. v.
Whataburger Inc., of Corpus Christi, Texas
A competitor failed to show by a preponderance
of the evidence that a person of ordinary skill in the art believed that the
term "circuit" did not recite sufficiently definite structure, in
a patent for using an on-screen display to control a computer switching
system. The written description disclosed only the preferred embodiments of
various circuit limitations and did not use those terms in a manner clearly
inconsistent with the ordinary meaning of the term "circuit," the
prosecution history did not suggest that the ordinary meaning of the term
"circuit" did not apply, and every use of the term in the asserted
claims included additional adjectival qualifications further identifying
sufficient structure to perform the claimed functions.
Apex Inc. v. Raritan Computer, Inc.
A patent holder did not waive its argument
that the elements in a "guiding steps" limitation could be
performed simultaneously, in a patent on a high- speed egg processing
machine, even though the patent holder did not object to the district
court's claim construction or instructions to the jury. Essentially, the
patent holder's appeal was to protect the original breadth of the binding
claim construction presented by the district court to the jury from the post
facto imposition of an additional limitation.
Moba, B.V. v. Diamond Automation, Inc.
An Internet domain name registrant violated
the Anticybersquatting Consumer Protection Act (ACPA) by registering the
names "Pinehurstresort.com" and "Pinehurstresorts.com,"
which were similar to the trademark "Pinehurst Resort and Country
Club" used by a famous golf club. The registrant showed bad faith,
through lack of any previous use of the Pinehurst name, failure of an
argument that use of the name was for parody purposes, intent to divert web
searchers from the golf club to their site, where they would be exposed to
an anticapitalist message, willingness to sell rights to the names, and
warehousing of thousands of domain names of large corporations and law
firms.
Pinehurst, Inc. v. Wich
The phrase "bus interface unit," in
a patent on a bus interface unit, was required to be accorded its ordinary
meaning, i.e., a unit for interfacing with a serial data bus, since the
inventor conceived that the invention would be used principally, if not
exclusively, in a "command/ response" environment. Notwithstanding
repeated references in the patent to operation of a bus interface unit in
either a bus controller or a remote terminal mode, there was no clear
disclaimer of using the invention in a protocol other than a
command/response protocol.
Northrop Grumman Corp. v. Intel Corp.
A patent holder did not waive the issue of
whether its own prior patent was prior art to its subsequent patents, even
though the patent holder failed to object to a jury instruction that the
prior patent was prior art. The objection by the patent holder at the
charging conference would have been futile because the issue was the primary
focus of summary judgment briefs, the district court, on its own initiative,
invited the parties to discuss the issue in a separate round of briefs, and
the district court issued a written ruling one day before trial that
carefully addressed only that issue and the trial was then conducted on the
basis of that ruling.
Riverwood Intern. Corp. v. R.A. Jones
& Co., Inc.
A patent claim covering a gas cell that
corrected astigmatism through the use of spherical objective mirrors with a
cylindrical component added thereto was not literally infringed. Toroidal
objective mirrors used by the accused gas cell were not the same as
spherical mirrors with a cylindrical correction used by the patented device.
On-Line Technologies, Inc. v.
Perkin-Elmer Corp.
The allegedly senior owner of a trademark for
a hair care product, whose product was at least partially manufactured in
the United States but sold only from its United Kingdom home to customers in
third countries, did not use the mark "in commerce," for purposes
of determining whether its rights in the mark had been abandoned. The
transport from its manufacturing to its sales offices was in groupage, and
did not result in any public awareness of the mark.
General Healthcare Ltd. v. Qashat
The Eleventh Circuit has held that, in order
to prevail on a misappropriation theory of insider trading liability against
a misappropriator who does not himself use confidential information in order
to trade in securities, but who tips such information to a third-party
trader, the Securities Exchange Commission (SEC) must prove that the
misappropriator expected to benefit from the tip. This intent to benefit
does not require an expectation of actual pecuniary gain, such as a kickback
or reciprocal tip in future. It may be enough that the tipper seeks to
enhance his reputation or to make a gift to a trading relative or friend. A
split of authority on the issue was noted.
S.E.C. v. Yun
Investors in a limited partnership failed to
state a claim for control person liability under the Securities Exchange Act
against the companies that allegedly had control over the limited
partnership's operation. The complaint made no allegations regarding the
companies' role as to the misrepresentations and omissions purportedly
contained in the offering documents used to solicit the investors. Although
the investors suggested that it was "easy to imagine" how the
companies could have exercised their authority to ensure that the limited
partnership complied with all required disclosure requirements, the
investors bore the burden of presenting a sufficient factual basis for
finding that the companies had specific control over the alleged primary
securities violations.
766347 Ontario Ltd. v. Zurich Capital
Markets, Inc.
The tax claim bureau failed to meet its burden
of proving strict compliance with the statutory notice requirements
governing the posting of real property tax sale notices. Although the
testimony of the witness, who was employed by the county to post the tax
sale notices, established that he posted the tax sale notice on a telephone
pole on the taxpayers' land, he had no recollection of how he attached the
notice. Thus, there was no way for the court to conclude whether or not the
notice was "reasonably secured."
Consolidated return by McKean County Tax
Claim Bureau of 9/12/2000 ex rel. Howard
Amendments to the Racing Act required the
redistribution of Horse Racing Tax Allocation (HRTA) Fund amounts in excess
of prior levels to the taxpayers, and thus the taxpayers were entitled to
reimbursement from the State of payments of the pari- mutuel handle of
inter-track and simulcast wagering into the HRTA Fund. Without such
redistribution, the taxpayers would be subjected to an actual increase of
the tax, despite the clear expression of the legislature that the funds were
to be redistributed, and the legislature had provided for the appropriation
of the funds that remained in the HRTA Fund at the prior level.
This decision may not yet be released for
publication.
Balmoral Racing Club, Inc. v. Gonzales
The property tax assessment on taxpayer's
shopping center did not violate the uniformity clause, even though it was
allegedly assessed higher than other shopping centers in the county. The
county had previously conducted a countywide reassessment at which time the
county commissioners set an established predetermined ratio at 100 percent
of market value, the purchase price of taxpayer's property was
$10,422,978.23 and the State Tax Equalization Board (STEB) ratio for the
year of the tax appeal was 85.2 percent, and because the STEB ratio varied
less than 15% of the established predetermined ratio of 100%, the properly
assessed fair market value of the property was $8,500,000.00.
Downingtown Area School Dist. v. Chester
County Bd. of Assessment Appeals
Sufficient evidence supported a decision by
the Property Tax Appeal Board (PTAB) to reduce the county's assessed
valuation of a parcel of the taxpayer's real property. The county placed the
subsequent property sale into evidence through the transfer declaration
without any further evidence concerning the nature of the transaction, and
the re-zoning and special use application granted immediately prior to the
sale may have had a significant impact on the subsequent purchase price.
This decision may not yet be released for
publication.
Kankakee County Bd. of Review v. State
Property Tax Appeal Bd.
The
failure by the Internal Revenue Service (IRS) to include in a notice of gift tax
deficiency the calculated date by which the taxpayer was required to file a
petition with the Tax Court to contest the deficiency did not invalidate the
notice. The notice was dated and advised the taxpayer that he had a 90-day
period within which to file a petition. Also, the taxpayer filed his petition by
the calculated date, and thus suffered no prejudice as a result the IRS failure.
Elings
v. C.I.R.
The methods by which a County Tax Commissioner
issued executions and imposed a levy upon a past due taxpayer's bank
account, without notice prior thereto, in order to collect county taxes owed
on personal property complied with notice provisions under statutes
governing collection of past due taxes. The statutes under which the
Commissioner acted authorized the issuance of executions and the imposition
of levies upon all of taxpayer's property, including bank accounts, since
the taxpayer neglected or refused to pay taxes. Furthermore, none of the
statutes required the Commissioner to provide the taxpayer notice of such
action.
Anderson v. Ford
The tax claim bureau failed to adhere strictly
to the notice provisions of the Real Estate Tax Sale Law which sets forth
requirements for the mailing of various notices to owners of a property
where the real estate taxes are in arrears and the sale of property is
possible. Even though the taxpayer attempted to make payment of the taxes in
full and the envelope in which she mailed the payment was postmarked prior
to the sale, it was not received by the bureau before the sale. Thus, the
timing of when the taxpayers learned of the impending tax sale prevented
them from paying the delinquent taxes in full.
In re 1999 Tax Claim Bureau of Consol. Returns
The taxpayers, who sought to have the tax
assessments on their properties reduced, were not entitled to spot
assessment relief, where there was no proof that assessments were excessive.
The legal presumption that the assessment was correct had not been overcome
since the taxpayers failed to introduce any evidence as to value of their
properties, the prohibited "welcome stranger" basis for rolling
back the assessment was not present, and the taxpayers had not challenged
the logic of the assessor in examining the assessment rolls and making the
revisions. Additionally, looking at neighborhoods by the assessor to revise
the assessments on an area-wide basis was not a prohibited spot assessment.
Shippee v. Brick Tp.
News
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Cigarette
maker Philip Morris is facing another fraud suit by Chitwood & Harley
before the Georgia's Fulton State Court for deceiving smokers into believing
that light cigarettes were safer than other brands.
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In
People Vs. Radcliffe it has been held that a jury can hear
testimony that suggests eyewitnesses are particularly unreliable when
identifying perpetrators of a different ethnicity.
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In
Suders Vs. Easton the 3rd US Circuit Court of Appeals has ruled that
if the plaintiff in a sexual harassment suit can prove she was a victim of a
"constructive discharge" - meaning that working conditions were so
intolerable that she was forced to quit, the defendant is not entitled to
invoke the so called Fragher/Ellerth defense.
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On
Wednesday, the U.S. Supreme Court will hear Nike v. Kasky, wherein the issue
is whether Nike can be sued by individuals under state unfair competition
laws for statements the company made about its overseas labor practices.
This case could have historic implications for corporations' First
Amendment rights.
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