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Legal news from Tuesday, December 7, 2010




Supreme Court considers securities fraud, employment discrimination cases
Jaclyn Belczyk on December 7, 2010 3:08 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Tuesday in Janus Capital Group v. First Derivative Traders [oral arguments transcript, PDF; JURIST report], a securities fraud case. The question before the court is whether a service provider can be held primarily liable in a private securities fraud suit for aiding and participating in another company's misstatements. Section 10(b) of the Securities and Exchange Act [materials] prohibits any manipulation or deception in connection with the purchase or sale of securities, but it is unclear whether the liability associated with the act extends to service providers that aided in the selling of securities where misinformation was involved. The US Court of Appeals for the Fourth Circuit overturned [opinion, PDF] the district court decision and allowed a class action against the petitioner to proceed, holding that a service provider may be liable for securities fraud. There is currently a circuit split on this issue.

In Thompson v. North American Stainless [oral arguments transcript, PDF; JURIST report], the court heard arguments on whether a third party is afforded protection against retaliation when they have made claims about bias in the workplace that were not directly related to their own treatment. Title VII of the Civil Rights Act [42 USC § 2000e-3(a) text] prohibits retaliation against a worker who has complained of bias in the workplace, but it is unclear whether that protection extends to a third party associated with the worker complaining of the bias. The US Court of Appeals for the Sixth Circuit affirmed [opinion, PDF] the district court's ruling and held that the statute only protects workers personally engaging in the protected activity, in this case complaining of workplace bias. The court has also been asked to decide if a civil remedy can be sought by third party, if the court of appeals ruling is upheld.




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Europe rights court finds Scotland in violation of media rights
Julia Zebley on December 7, 2010 2:12 PM ET

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[JURIST] The European Court of Human Rights (ECHR) [official website] ruled [judgment text] Tuesday that Scotland has violated the media's right to report on trials and challenge court orders. The ECHR found the UK and Scotland in violations of articles 10 and 13 of the European Convention on Human Rights [text], which provide for the right to free expression and the right to an effective remedy, respectively. Alan Mackay, a now-retired reporter for BBC Scotland [official website], sought to report on police and prosecutorial misconduct during a 2004 drug case. The judge barred Mackay and BBC Scotland from reporting on the incident during the trial, citing section 4(2) of the Contempt of Court Act 1981 [text], and refused to allow appeal on the issue. The ECHR noted:
[U]nder the present system, any Scottish court which makes a section 4(2) order is under no obligation to hear representations from the media and, even where it does hear such representations, there is no obligation upon it to do so within a reasonable period of time and in any event prior to the proceedings to which the section 4(2) order relates. ... The Court has repeatedly stated that freedom of expression constitutes one of the essential foundations of a democratic society and that, in that context, the safeguards guaranteed to the press are particularly important. ... When proper consideration is given to what is at stake for the media when section 4(2) orders are imposed, it becomes apparent that current Scottish practice provides too slender a basis for the safeguards which are required in this context.
The UK may choose to appeal to the ECHR's Grand Chamber within three months. Mackay and BBC Scotland did not seek, and were not granted, any forms of relief. The Independent reports [text] that the Scottish government is "already working with the courts to address the issues raised by this case."

Protection and rights for journalists [JURIST news archive] continue to be of worldwide concern. In October, Canada broadened [JURIST report] journalists' rights to protect sources. In April, Germany announced plans to enact legislation [JURIST report] meant to increase freedom of the press. In February, the Icelandic Parliament [official website, in Icelandic] began considering measures [JURIST report] aimed at increasing protections for journalists and promoting freedom of speech and transparency in government. Last December, the US Senate Judiciary Committee [official website] approved a bill [JURIST report] that would protect journalists' abilities to shield sources in federal court proceedings. Reporters Without Borders [advocacy website] ranked Finland number one in press freedom in 2010 [2010 rankings], with Iceland second, Canada twenty-first, Germany seventeenth, and the US twentieth. The UK ascended from the previous year, moving from twentieth to nineteenth.




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Toronto G-20 security measures 'illegal': report
Jaclyn Belczyk on December 7, 2010 1:54 PM ET

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[JURIST] A local regulation [O Reg 233/10 text] that broadened the scope of police search and seizure powers in certain areas of Toronto during June's Group of 20 (G-20) summit [official website] "was of dubious legality and no utility" and resulted in a mass violation of civil rights, according to a report [text, PDF; press release] released Tuesday by the Ombudsman of Ontario [official website], Andre Marin. The regulation was quietly enacted under the 1939 Public Works Protection Act (PWPA) [text] and allowed police to require anyone present in certain areas of Toronto to identify themselves or be subjected to a search. In the report, entitled "Caught in the Act," Marin concluded that, "Regulation 233/10 ... should never have been enacted. It was likely unconstitutional." In remarks [text, DOC] delivered Tuesday, Marin said:
Reviving this dormant piece of legislation, coupled with the adoption of the regulation, created a legal landscape where people were detained by police and compelled to identify themselves, answer questions and submit to warrantless searches—even if they simply wanted to walk away. Responsible protesters and civil rights groups who took the trouble to educate themselves about their rights prior to the G20 had no way of knowing they were walking into a trap—they were literally caught in the Act; the Public Works Protection Act and its pernicious regulatory offspring.
Marin recommended that the Ministry of Community Safety and Correctional Services [official website] revise and consider replacing the PWPA, which is unique to Ontario, and that it make sure that any similar regulations are clearly communicated to the public in the future.

Marin launched the investigation [JURIST report] in July after his office received 22 complaints regarding security measures during the G-20 summit. It was the first time the Ombudsman used social media in conducting an investigation. In September, two individuals detained during the G-20 filed a class action suit [JURIST report] on behalf of 1,150 individuals detained during the summit. The individuals, Miranda McQuade and Mike Barber, named three defendants in the suit, the Canadian Attorney General, the Toronto Police Services Board and the Regional Municipality of Peel Police Services Board [official websites]. The plaintiffs claim that law enforcement committed numerous intentional torts against those detained between June 25 and June 30. In early July, protesters in Toronto took to the streets and demanded an investigation [JURIST report] into police conduct during the meeting. Soon after the conclusion of the summit, in late June, the Canadian Civil Liberties Association called for an inquiry [JURIST report] into police conduct and treatment of protesters.




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Zambia high court acquits ex-president's wife on corruption charges
Andrea Bottorff on December 7, 2010 1:18 PM ET

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[JURIST] Zambia's Supreme Court on Monday acquitted Regina Chiluba, the wife of former Zambian president Frederick Chiluba [BBC profile], of charges that she accepted stolen property during the years of her husband's administration. The court overruled a previous decision from March that sentenced [BBC report] her to three-and-a-half years in prison on charges of receiving stolen funds. All three justices ruled that there was insufficient evidence [Lusaka Times report] to find Regina Chiluba guilty of knowingly keeping the stolen items, which included large amounts of cash, an automobile and a television set, although the court also required her to return some of the property.

Frederick Chiluba was acquitted [JURIST report] last year of charges of stealing money from the country's treasury while in office from 1991-2001. He and two Zambian businessmen faced a total of 12 counts of theft of public funds for their alleged involvement in taking $488,000 when the treasury deposited payments to two US security firms into a London bank account controlled by the Zambia Security and Intelligence Services (ZSIS). The court found insufficient evidence to convict Chiluba, but the businessmen were found guilty. Chiluba was ordered to stand trial [JURIST report] on the corruption charges in February 2008. In a separate case, Chiluba was ordered by a London court in July 2007 to pay $58 million in fines [JURIST report] to Zambia to compensate for other funds stolen during Chiluba's decade in power. The suit was brought in Britain [BBC report] by Zambian officials because Chiluba and his associates held the assets in the UK and other European countries.




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Philippines high court rules 'truth commission' unconstitutional
Andrea Bottorff on December 7, 2010 11:06 AM ET

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[JURIST] The Supreme Court of the Philippines [official website] on Tuesday ruled [judgment text] that a proposed "truth commission" created to investigate former president Gloria Macapagal Arroyo [BBC profile; JURIST news archive] is unconstitutional. President Benigno Aquino [BBC profile] set up the "truth commission" in July to investigate allegations that the outgoing administration engaged in corruption and rights violations, like rigging the 2004 presidential election, misusing government funds and profiting from government contracts. The court held that the "truth commission" violates equal protection by attacking only certain political individuals suspected of corruption. Critics of the court's decision argue that most of the justices were appointed by Arroyo and may still be loyal [Philippine Daily Inquirer report] to the previous regime. Justice Secretary Leila De Lima criticized the ruling [press release] as "a setback in the campaign against graft and corruption." The government has 15 days to appeal the decision.

Aquino announced plans to create the commission [JURIST report] over the summer, prompting a call for him to issue an executive order to make the commission official and clear up any ambiguity regarding its authority. Arroyo has repeatedly denied any wrongdoing. She was elected to the lower house of parliament in April after receiving permission to run for the seat [JURIST report] despite protests that her presidency gave her an unfair advantage. In March, Aquino and other presidential candidates criticized as "unjust" a Supreme Court ruling that allowed Arroyo to appoint a replacement for the retiring chief justice [JURIST report] who planned to step down a week after the May presidential elections. Arroyo declared martial law [JURIST report] in December for the first time in 23 years in the wake of a massacre in the Maguindanao province that left 57 dead. In February, prosecutors charged 197 people with murder [JURIST report] in connection with the massacre. A Manila trial court ordered the arrest of 189 more suspects [JURIST report] in March. Eleven policemen and militia members pleaded not guilty [JURIST report] to the charges in April.




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Federal judge dismisses targeted killing lawsuit
Jaclyn Belczyk on December 7, 2010 11:02 AM ET

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[JURIST] A judge for the US District Court for the District of Columbia [official website] on Tuesday dismissed [opinion, PDF] a lawsuit [JURIST report] challenging the Obama administration's ability to conduct "targeted killings" in the case of radical Muslim cleric and US citizen Anwar al-Awlaqi [BBC profile; JURIST news archive]. Judge John Bates found that the court lacked jurisdiction over the case, filed by the American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR) [advocacy websites] on behalf of Awlaqi's father, dismissing it on procedural grounds and noting that important questions remain:
But "[a] court without jurisdiction is a court without power, no matter how appealing the case for exceptions may be," and hence it is these threshold obstacles to reaching the merits of plaintiff's constitutional and statutory challenges that must be the initial focus of this Court's attention. Because these questions of justiciability require dismissal of this case at the outset, the serious issues regarding the merits of the alleged authorization of the targeted killing of a U.S. citizen overseas must await another day or another (non-judicial) forum.
Bates found that Awlaqi's father lacked standing and that the case presented a non-justiciable political question. The ACLU criticized the ruling [press release], saying that if it is correct, "the government has unreviewable authority to carry out the targeted killing of any American, anywhere, whom the president deems to be a threat to the nation."

Bates heard arguments [JURIST report] in the case last month. The arguments took place on the same day Awlaqi called for jihadist attacks on US citizens in a video posted on extremist websites. Awlaqi, a suspected member of al Qaeda [GlobalSecurity backgrounder], is believed to be linked to Major Nidal Hasan, the Fort Hood shooting suspect, as well as the Christmas Day airplane bombing attempt [JURIST news archive]. Earlier in November, Yemeni prosecutors charged [JURIST report] Awlaqi with incitement to kill foreigners. Awlaqi is believed to be hiding in Yemen and was charged in absentia. US officials have labeled Awlaqi as a terrorist and have placed him on a list to be captured or killed. The Yemeni government has sent forces on a counter-terrorism operation into the Province of Shabwa, where it is believed that Awlaqi is hiding. In August, the ACLU and the CCR obtained a specially designated global terrorist (SDGT) license that enables them to represent Awlaqi, but announced they were still pursuing a legal challenge [JURIST reports] to the licensing scheme. The Obama administration has defended [JURIST report] its use of targeted killings, specifically those made by unmanned predator drone strikes [JURIST news archive].




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