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[No.53]
June 20, 2003 |
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International Legal News
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Cases
Source:
Westlawinternational.com
Denying certiorari, the United States Supreme Court has let stand a First
Circuit decision that an alien convicted after a jury trial of violating state
drug laws could not have relied on the availability of discretionary relief from
an order of deportation. Thus, he was not entitled to a waiver of deportation
pursuant to a statute that had been in effect prior to the enactment of the
Antiterrorism and Effective Death Penalty Act (AEDPA). Rather, AEDPA's
limitation of discretionary relief applied retroactively to the alien.
The alien relied on INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d
347 (2001), in which the Supreme Court held that, because new legal consequences
would attach to events completed before its enactment, application of AEDPA to
alien criminal defendants who pled guilty prior to AEDPA would constitute an
impermissible retroactive effect. The Court of Appeals stated, however, that the
decision in St. Cyr relied on the Supreme Court's recognition that plea
agreements generally involve a quid pro quo between a defendant and the
government and that aliens often attach much importance to the immigration
consequences of the decision whether or not to enter into an agreement.
Therefore, the potential for unfairness to one who pled guilty in reliance on
immigration law as it existed at the time of the plea would be significant if
the new law were applied retroactively. In contrast, those alien criminal
defendants who chose to go to trial, prior to the change wrought by AEDPA, were
not relying on immigration law as it existed at the time in making that
decision.
Dias
v. I.N.S., 311 F.3d 456 (C.A.1 2002)
Certiorari has been denied in a case in which the Federal Circuit, applying
First Circuit law, determined that the Copyright Act did not preempt or narrow
the scope of shrink-wrap license agreements that prohibited reverse engineering
of a template to improve computer aided design (CAD) software, even though the
protection in the agreements encompassed Copyright Act protections. The shrink-
wrap agreements were far broader than the protection afforded by copyright law,
which prohibited only certain copying, the Federal Circuit found.
According to the petition for certiorari, shrink-wrap licenses, also known as
"clickwrap" or "box top" licenses, typically provide that,
just by opening a box of software or by using the software, the user agrees to
the license terms. The petition stated that reverse engineering has long been
regarded as a fair use, and thus not an infringement of copyrights, because it
promotes innovation and progress. The petition argued that the Federal Circuit's
decision will chill innovation and progress in the software industry by
prohibiting anyone lawfully possessing a competitor's product from reverse
engineering it to discover unprotected elements and functionality.
Bowers
v. Baystate Technologies, Inc., 320 F.3d 1317 (C.A.Fed.-Mass. 2003).
Last year, the Eleventh Circuit held that state law claims brought by a class of
stock purchasers against a brokerage firm and a mutual fund manager, alleging
misrepresentations regarding which class of shares would be sold and what the
price was, did not have to be certified as a class action by the state court in
order to be considered a "covered class action" that was removable
under the Securities Litigation Uniform Standards Act (SLUSA). The United States
Supreme Court has now denied certiorari in that case. Although the complaint
asserted only state-law claims, the defendants removed the case to the district
court based upon their belief that it actually alleged violations of federal
securities laws, which fell within the scope of the SLUSA.
The Eleventh Circuit also found that the district court properly dismissed, with
prejudice, all claims of class-wide wrongdoing, even though the plaintiff had
amended the complaint to delete all references to untrue statements and all
fraud claims.
The petition for certiorari argued that the requirement of SLUSA, 15 U.S.C.A. §
77p(b), providing that "no covered class action based upon the statutory or
common law of any State ... may be maintained in any state or federal
court" did not authorize dismissal, with prejudice, of those claims in the
complaint that did not require consideration of misrepresentations in connection
with the purchase or sale of a security. The petition claimed that the Eleventh
Circuit's disposition of the case was in conflict with a recent decision of the
Ninth Circuit, Falkowski v. Imation Corp., 309 F.3d 1123 (C.A.9 2002), which
dismissed fraud claims by former employees of the defendant corporation in
connection with stock options, but not breach-of-contract claims arising from
the same conduct.
The petition also asked whether the same provision of § 77p(b) supplied a basis
for removal under 28 U.S.C.A. § 1441, noting that the language said nothing
about removal under § 1441 and arguing that SLUSA also provides for concurrent
federal and state court jurisdiction over all individual claims and over claims
of class-wide wrongdoing not of the substantive kind covered. The petition
argued that removal jurisdiction was not implicit in the phrase "be
maintained" within the bar found in § 77p(b). In Breuer v. Jim's Concrete
of Brevard, Inc., 123 S.Ct. 1882 (U.S. 2003), the Supreme Court held earlier
this term that the phrase as used in a section of the Fair Labor Standards Act,
providing that an action "may be maintained ... in any ... State court of
competent jurisdiction," did not prohibit removal.
Behlen
v. Merrill Lynch, 311 F.3d 1087 (C.A.11-Ala. 2002),
News
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SCO
Group on Monday filed an amended complaint in the U.S. district court in
Utah adding more claims against IBM and tripling the damages to more than $ 3
billion for alleged copying of proprietary Unix intellectual property into
Linux. SCO sought an injunction prohibiting IBM from selling
Unix and detailed some accusations of technology moved to Linux. SCO seeks $ 1
billion damages from IBM for alleged breach of Contract with SCO ,another
$ 1 billion for breach of the Unix contract signed by Sequent, which
IBM acquired in 1999; and another $1 billion for unfair competition. SCO also seeks more for
misappropriation of trade secrets and punitive damages.
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PeopleSoft Inc has accelerated it efforts stay one step ahead of a hostile
takeover by Oracle, PeopleSoft has begun an all-out drive to gain commitments
directly from shareholders of J. D. Edwards in hopes of speeding its friendly
deal to acquire the company after Oracle Corp on Wednesday boosted its takeover
bid for PeopleSoft Inc to $ 6.3 billion in cash by enhancing its offer from $ 16
per share to $ 19.50 or by $ 1.2 billion.By moving quickly, PeopleSoft is trying
to stave off Oracle, which has not said whether it would still be interested in
acquiring PeopleSoft if it succeeds in merging with J. D. Edwards. Under the
terms of PeopleSoft's most recent offer for J. D. Edwards, the acquisition would
leave PeopleSoft with nearly $1 billion less in cash in the bank.
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A
New Jersey Judge has ruled that Transcripts of secret bail
hearings for a man who sold fake IDs to two Sept. 11 hijackers may be released
to the public. Activities of the Defendant came to the attention of the FBI when authorities found
that he had sold fake international driver's licenses to illegal immigrants
Two of those aliens were Khalid Al-Midhar, who was aboard the jetliner that was
flown into the Pentagon, and Abdulaziz Alomari, aboard the first plane to hit
the World Trade Center. But the judge stayed her ruling until June 19 to give
the defendant a chance to appeal. The hearings, unique in the state's history,
were held behind locked doors and excluded the defendant and his attorney.
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N.Y.based
Senior Judge William C. Conner of the U.S. District Court for the Southern
District of New York was named as a Mediator in the Enron Case by joint order of
Southern District Bankruptcy Judge Arthur J. Gonzalez, who has been presiding
over Enron's Chapter 11 bankruptcy, and Judge Melinda Harmon of the U.S.
District Court for the Southern District of Texas, who has been overseeing Enron
shareholder litigation. Judge Conner has in 1990 presided over suits
arising from accounting fraud at the Leslie Fay Co., a major women's clothing
manufacturer. In 1997, he approved a $34 million settlement paid by the
company's officers, directors and its accounting firm, BDO Seidman .At roughly
the same time, Conner also oversaw suits by insurers against Ernst & Young
over the accounting firm's certification of annual reports by JWP Inc., a large
electrical contracting company. The 83-year-old Conner is not the first mediator
to be named by the Enron judges. In the May 28 mediation order, Kevin T.
Duffy, a Manhattan senior federal judge, was named as mediator, but Duffy
extricated himself the following week. Duffy said that he bowed out because he
owned stock in one of the companies involved in the case
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McDonald's
Corp. has announced that it is directing its meat suppliers worldwide to
phase out the routine use of growth-promoting antibiotics in animals because of
concerns that the practice lessens the drugs' effectiveness in humans.
McDonald's is the first major fast-food chain to take such a step. This
decision has been taken by the world's largest restaurant company after a
year of consultations with environmental, science and consumer groups that had
pushed for cutbacks. Those organizations hope the move by one of the largest
meat buyers marks a turning point in the way U.S. farmers raise animals. The
policy does not aim at prohibiting the use of antibiotics to treat
sick livestock. It is aimed instead at antibiotics routinely given to animals to
promote growth
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The 9th U.S. Circuit Court of Appeals heard arguments Tuesday in a case
involving Unocal Corp.'s investment in a Myanmar natural gas pipeline project,
11 judges focused on whether the company should be held liable for the
government-sanctioned use of forced labor, rape, torture and murder to help
build the pipeline through rural communities that sometimes resisted its construction. Unocal
argues that it had no control over that country's military. A win by Unocal
could curtail a growing area of litigation where human rights advocates try to
hold U.S. corporations accountable for their actions abroad through the Alien
Tort Claims Act.
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The
Appellate Division of the New York State Supreme Court has rejected a motion by
Viacom to lift the injunction on restraining the renaming of their TNN cable
television network as Spike TV until its dispute with filmmaker Spike Lee over
the name change is decided at a trial.Lee had sought and won an injunction
against the network after telling a lower court that the name change was a
deliberate attempt to hijack his name, image and reputation.
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SEBI
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Mutual Funds
Circular No. MFD/CIR No. 03/ 158 /03 Dated 10.06.2003 : Recently, SEBI has permitted trading of interest rate derivatives through stock exchanges which is expected to commence in near future. It is clarified that mutual funds can trade in these instruments subject to disclosures made in the offer documents.
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Department of
Company Affairs
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Notification No. GSR480(E) Dated 12.06.2003 : The Central Government has made the Companies (Auditor's Report) Order, 2003 to be effective from 1st July, 2003 specifying the Matters to be included in the auditor's report.
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CBEC Excise Tariff
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Notification No. 51/2003 Dated 12.06.2003 : In the Table, Sl. No. 18 and the entries relating thereto have been substituted.
Circular No. 723/39/2003-CX Dated 10.06.2003 : The Board has accepted the recommendation of the Public Accounts Committee and accordingly directed that during visits to the field formation for inspections or any other purpose as well as the periodic review meetings, the senior officers should take necessary steps to properly sensitise the field officers, especially those at the cutting edge level, as to the imperativeness and necessity of keeping a watch on the overall financial health of the entities from whom Govt. dues are recoverable but can’t be immediately recovered for one reason or the other, and also take necessary steps to ensure that Govt. dues don’t become unrecoverable for want of timely action by them.
Circular No. 722/38/2003-CX Dated 09.06.2003 : The power loom weavers who are availing of the clearance based exemption i.e. full exemption upto first annual clearance of Rs. 25 lakhs, have represented that a mechanism may be devised so that they can pass on the credit even if their exempted final products, made from a single consignment of yarn and covered under single invoice, is sold to more than one user. The Board, having considered the issue, have devised the procedure thereof.
Circular No. 721/37/2003-CX Date d 06.06.2003 : It has been clarified that no duty shall be payable and no reversal of credit is also warranted on waste package /containers used for packing inputs, on which credit has been taken, when cleared from the factory of the manufacturer availing
Modvat/CENVAT credit. Consequently, Circular No. 470/36/99-CX dated 19.7.99 may be treated as withdrawn.
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CBEC Exice non Tariff
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Notification No. 55/2003 NT Dated 12.06.2003 : Central Government has directed that the duty of excise payable on such reprocessed plastic granules, manufactured and cleared by a hundred per cent export oriented undertaking or a unit in a free trade zone, in Domestic Tariff Area (DTA) but for the prevailing practice in this regard, shall not be required to be paid in respect of such reprocessed plastic granules, on which the said duty of excise was not levied during the period commencing from 2nd June, 1998 and ending with 9th May, 2000, in accordance with the said practice.
Notification No. 54/2003 NT Dated 09.06.2003 : (a) in rule 7, in sub-rule (1) after clause (e), the following
clause has been inserted,
“(f) a challan, referred to in rule 8A.”;
(b) after Rule 8, Rule 8A relating to Transfer of credit by exempted textile manufacturer, has been inserted.
(c) after rule 14, ANNEXURE-I specifyng the Challan Form and ANNEXURE-II specifying the Textile Quaterly Statement
Form, have been inserted.
Notification No. 53/2003 NT Dated 09.06.2003 : In the said notification, in clause (i) of sub-para (1) of the opening paragraph, the following has been inserted at the end, namely:-
“Provided that an independent weaver who intends to opt for the procedure specified in rule 8A of the CENVAT Credit Rules, 2002, shall file an application in the form specified in Annexure-IA to the notification No. 35/2001-Central
Excise(N.T.), dated 26th June, 2001 (G.S.R. 464 (E), dated the 26th June, 2001) and shall obtain a twelve digit declarant code from the Superintendent of Central Excise having jurisdiction in this behalf, before issuance of any challan referred to in the said rule 8A; such option once exercised during a financial year can not be withdrawn during the same financial year.”.
Notification No. 52/2003 NT Dated 06.06.2003 : In rule 9A, in sub rule (4), for the figures and words “26th day of May, 2003”, the figures and words “15th day of June, 2003” have been substituted.
Notification No. 51/2003 NT Dated 06.06.2003 : Central Government has directed that the whole of the duty of excise payable on the intermediate goods falling under Chapter 28 arising during the course of manufacture of gold jewellery falling under Chapter 71, but for the prevailing practice in this regard, shall not be required to be paid in respect of such intermediate goods on which the duty of excise was not being levied during the aforesaid periods in accordance with the said practice.
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CBEC Customs Tariff
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Circular No. 50/2003 Dated 12.06.2003 : It has been decided to allow movement of
export cargo to Bangladesh by the inland waterways route from Haldia Docks
Complex. The revised procedure in this regard has been specified.
Circular No. 49/2003 Dated 10.06.2003 : The Hon’ble Finance Minister has
approved the guidelines for consideration of requests for exemption from Customs
Duty under section 25(2) of the Customs Act, 1962, as amended by the Finance
Act, 2003.
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Anti Dumping Duty
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Notification No. 90/2003 to No. 92/2003 Dated 10.06.2003 and 11.06.2003 : Anti Dumping Duty has been Imposed on Import of
Borax decahydrate, Potassium carbonate and Ferro Silicon from the countries specified.
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RBI
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Supply Of Goods By Special Economic Zones
(Sezs) To Units In Domestic tariff Area (DTA) Against Payment In Foreign Exchange
Circular No. A.P.(DIR Series) Circular No.105 Dated 16.06.2003 : In terms of A.P.(DIR Series) Circular No.54 dated November 25, 2002, Units in Domestic Tariff Areas (DTAs) have been permitted to purchase foreign exchange from authorised dealers to pay for the goods supplied to them by 100% EOUs, EPZs, EHTPs and STPs. It has now been decided to extend this facility to units in DTAs for making payment towards goods supplied to them by Units in Special Economic Zones (SEZs).
Notification No. IDMC.PDRS. 4802 /03.64.00/2002-03 Dated 11.06.2003 : As
specified in Circular IDMC.PDRS. 4802 /03.64.00/2002-03 dated June 3, 2003 Primary Dealers are allowed to transact in Exchange Traded Interest Rate futures for the purpose of hedging the interest rate risk of their underlying government securities portfolio.
Based on the feedback from Primary Dealers requesting for permitting them to hold trading positions in Interest Rate futures subject to the prudential regulations , the issue has been revisited and it has now been decided to allow Primary Dealers to hold trading positions in Interest Rate Futures subject to the prudential regulations specified for the purpose.
Press Release No. 2002-2003/1283 Dated 16.06.2003 : The Reserve Bank of India hosted the 32nd Board Meeting of the Asian Clearing Union (ACU), in Bangalore. The central bank Governors of Bangladesh, Bhutan, India, Iran, Myanmar, Nepal, Pakistan and Sri Lanka participated in the meeting.
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DGFT
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Circular No. 7(RE-2003)/2002-2007 Dated 16.06.2003 : It has been decided that wherever any Customs notification under which an EPCG licence has been issued on or after 05.06.1995 grants any extension of the blockwise period(s), the same would be kept in perspective while computing any proportionate export obligation shortfall at the time of bonding of the unit under the EOU scheme. However, a condition would be imposed that the export obligation as per the EPCG licence criteria would be fulfilled by the unit within the stipulated period (inclusive of any extensions).
Circular No. 6(RE-03)/2002-2007 Dated 13.06.2003 : Amendment has been made in Circular No. 19(RE-00)/2000-2001 Dated 28/7/2000 to the effect that the last sentence of para 1, namely, “Therefore in all such cases where exports of “MS Galvanized Sheets/Strips” have been cleared for DEPB benefit under the entry at
Sl. No. 91 or the DEPB benefit has been granted against the entry at Sl. No. 91
consequent remedial action should be initiated immediately”, has been deleted.
Public Notice No. 12 (RE-2003)/2002-2007 Dated 06.06.2003 : Amendment in Para 2 of the procedure prescribed vide Public Notice No. 9/2002-07 dated 30.04.2002 has been notified as indicated below.
“State Trading Corporation (STC) will also be entitled to make imports of vegetable fats
(Vanaspati) upto the indicated quantity on annual quota basis in addition to the existing agency viz. Central Ware Housing Corporation
(CWC). Other conditions of the Public Notice remain unchanged.”
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Department of Commerce
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Notification No. 18/1/1997-DGAD Dated 09.06.2003 and No. 14/51/2002DGAD Dated 06.06.2003 : The Final Findings regarding Anti-Dumping Investigation (Mid-Term Review) Concerning Imports of Fused Magnesia from China PR and Preliminary Findings regarding Anti-Dumping Investigation Concerning Imports of Titanium Dioxide Originating in or Exported from People's Republic of China have been published.
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Department of Industrial Policy
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Notification No. SO660(E) to No. SO663(E) Dated 09.06.2003 : ONGC LTD., Makarpura, Cairn Energy India Pty Ltd., and ONGC LTD., have been Exempted from Rule 31(2) for the import of specified explosives.
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Department of Telecommunication
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Notification No. GSR455(E) Dated 05.06.2003 : Central Government has issued the Telecom Disputes Settlement and Appellate Tribunal Group 'C' and Group 'D' Posts Recruitment Rules, 2003 to be effective from 05.06.2003.
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Department of Health
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Notification No. SO676(E) Dated 12.06.2003 : Central Government has appointed the 12th Day of June, 2003 as the date on which the said Act shall come into force.
Notification No. GSR477(E) Dated 11.06.2003 : Central Government has published the Prevention of Food Adulteration (……………………..Amendment) Rules, 2003, for the information of all persons likely to be affected thereby, and notice
has been given that the said draft rules will be taken into consideration after the expiry of a period of sixty days from the date on which copies of the Official Gazette in which this notification is published, are made available to the public. |
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Department of Legal
Affairs |
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Notification No. GSR467(E) Dated 09.06.2003 : In the Notaries Rules, 1956, in Form IIB appended thereto, for the words and brackets "Secretary to the Government of India/Government of..................................... (Name of the State)", the words and brackets "Joint Secretary to the Government of India/Secretary to the Government of................................. (Name of the State)" have been substituted. |
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Ministry of Power |
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Notification No. SO669(E) Dated 10.06.2003 : The Central Government has
appointed the 10th day of June, 2003, as the date on which Sections 1 to 120 and Sections 122 to 185 of the Electricity Act,2003 shall come into force |
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Press Information Bureau
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Dated 17.06.2003 : The Law Commission has released a Consultation Paper on the Revision of the Insurance Act, 1938. The previous exercise to amend the Insurance Act, 1938 was undertaken in 1999 at the time of enactment of the Insurance Regulatory Development Authority Act, 1999 (IRDA Act). The Commission has undertaken the present exercise in the context of the changed policy that has permitted private insurance companies both in the life and non-life sectors. A need has been felt to strengthen the regulatory mechanism even while restructuring the existing legislation with a view to removing portions that have become redundant as a consequence of the recent changes.
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