JD Supra Hot Docs - Newsworthy Legal Filings From the Source

County of Hawaii v. C&J Coupe Family Ltd. P'ship: Opening Brief for the Appellant

Robert Thomas — Thu, 12 Nov 2009 23:39:03 GMT

Case Name: County of Hawaii v. C&J Coupe Family Ltd. P'ship
Document Name: Opening Brief for the Appellant
Post Date: 11/12/2009
Filing Date: 11/12/2009
Document Summary: This is the Opening Brief in the latest phase of County of Hawaii v. C&J Coupe Family Ltd. P'ship, two condemnation cases arising out of the County of Hawaii's attempts to take a Kona family's property.

This brief addresses several issues, but the most critical involve pretext and public purpose, questions left open by the U.S. Supreme Court in Kelo v. City of New London, 545 U.S. 469 (2005), but which were answered, in part, by the Hawaii Supreme Court in its opinion when these cases were first before the court last year. See County of Hawaii v. C&J Coupe Family Ltd. P'ship, 119 Haw. 352, 198 P.3d 615 (2008).

In that opinion, the court held that a property owner has a right to challenge the government's assertion that a taking is for public use. In reviewing a taking, courts have an obligation to take seriously a property owner's claim that the government's stated public purpose is a pretext masking its true purposes.

The court held that the trial court erroneously accepted the County’s stated purpose at "face value," and the "single fact that a project is a road does not per se make it a public road." Id. at 381, 198 P.3d at 643. The court vacated the trial court’s approval of the taking, and remanded the case with instructions to “thoroughly consider” evidence of pretext and private benefit by examining the County’s "actual purposes," its "veracity," and by "look[ing] behind the government’s stated public purpose" with a "closer objective scrutiny of the justification being offered." Id. at 375, 198 P.3d at 638 (“[O]ur case law supports the proposition that a court can look behind the government’s stated public purpose.”).

After the remand from the Hawaii Supreme Court, the trial court again validated the taking, concluding there was "no evidence"of pretext or private benefit. This brief challenges that conclusion.

Contributor: Robert Thomas [Full Profile | Docs Posted]

Bilski v. Kappos: Bilski Oral Argument Before the U.S. Supreme Court - Official Transcript

Gregory P. Bufithis, Esq. — Mon, 09 Nov 2009 16:24:35 GMT

Case Name: Bilski v. Kappos
Document Name: Bilski Oral Argument Before the U.S. Supreme Court - Official Transcript
Post Date: 11/09/2009
Filing Date: 11/09/2009
Document Summary: Official transcript of the Bilski v. Kappos November 09, 2009, oral argument before the United States Supreme Court.

Contributor: Gregory P. Bufithis, Esq. [Full Profile | Docs Posted]

Electronic Privacy Information Center v. United States Department of Homeland Security: Complaint For Injunctive Relief

Electronic Privacy Information Center — Mon, 09 Nov 2009 17:06:01 GMT

Case Name: Electronic Privacy Information Center v. United States Department of Homeland Security
Document Name: Complaint For Injunctive Relief
Post Date: 11/09/2009
Filing Date: 11/09/2009
Document Summary: EPIC Sues Homeland Security for Information About Digital Strip Search Devices

EPIC filed a Freedom of Information Act lawsuit challenging the Department of Homeland Security's failure to make public details about the agency's Whole Body Imaging program. The devices capture detailed naked images of air travelers in the United States. After the agency announced that the body scanners would become the primary screening device in US airports, EPIC demanded that the agency disclose records that describe the scanners' capacity to save and transmit images. In June, EPIC sent a letter to the Secretary of Homeland Security Janet Napolitano urging her to suspend the digital strip searches.

Please see the complaint below for more information.

Contributor: Electronic Privacy Information Center [Full Profile | Docs Posted]

Palmer v. Waxahachie Independent School: Brief For CATO Institute, et al., As Amici Curiae In Support of Petitioner

Cato Institute — Sat, 07 Nov 2009 15:00:18 GMT

Case Name: Palmer v. Waxahachie Independent School
Document Name: Brief For CATO Institute, et al., As Amici Curiae In Support of Petitioner
Post Date: 11/07/2009
Filing Date: 11/05/2009
Document Summary: School officials denied student Pete Palmer the right to wear a shirt supporting John Edwards's presidential campaign at his Dallas-area high school. They cited the district's dress code, which prohibited messages on student clothing except for those that supported school activities or district-approved organizations, clubs or teams. The Fifth Circuit agreed with the school district that this was a reasonable "time, place and manner" speech restriction. Applying the test from United States v. O'Brien, the court found that the dress code was content-and viewpoint-neutral, and served an important governmental purpose. Palmer now seeks Supreme Court review, citing seemingly contradictory precedents from the Second and Third Circuits and arguing that the regulation here flies in the face of the protection afforded to student speech by the famous case of Tinker v. Des Moines Independent Community School District. Cato, joined by the Institute for Justice, the Becket Fund for Religious Liberty, the Christian Legal Society, and the National Association of Evangelicals, filed an amicus brief supporting Palmer's petition and urging the continued use of Tinker. We argue that the Court should clarify its jurisprudence in this area to stop schools from applying broad restrictions in an attempt to avoid controversy and debate—and thereby threaten the very political and religious speech at the First Amendment's core. To prevent the chilling of student speech, the Court should solidify Tinker's central tenet, reaffirming that so long as speech doesn't "materially and substantially disrupt" the educational process, students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."

Please see full brief below for more information.

Contributor: Cato Institute [Full Profile | Docs Posted]

United States v. Comstock: Consolidated Brief Of The CATO Institute And Prof. Randy E. Barnett As Amici Curiae In Support Of Respondents

Cato Institute — Fri, 06 Nov 2009 17:46:18 GMT

Case Name: United States v. Comstock
Document Name: Consolidated Brief Of The CATO Institute And Prof. Randy E. Barnett As Amici Curiae In Support Of Respondents
Post Date: 11/06/2009
Filing Date: 11/04/2009
Document Summary: In 2006, Congress passed the Adam Walsh Child Protection and Safety Act, one provision of which authorizes the federal government to civilly commit anyone in the custody of the Bureau of Prisons whom the Attorney General certifies to be "sexually dangerous." The effect of such an action is to continue the certified person's confinement after the expiration of his prison term, without proof of a new criminal violation. Six days before the scheduled release of Graydon Comstock—who had been sentenced to 37 months in jail for receiving child pornography—the Attorney General certified Comstock as sexually dangerous. Three years later, Comstock thus remains confined in a medium security prison, as do more than 60 other similarly situated men in the Eastern District of North Carolina alone. He and several others challenged their confinements as going beyond Congress's constitutional authority and won in both the district and appellate courts. The United States successfully petitioned the Supreme Court to review the case. Cato, joined by Georgetown law professor (and Cato senior fellow) Randy Barnett, filed a brief opposing the government. We argue that the use of federal power here is unconstitutional because it is not tied to any of Congress's limited and enumerated powers. The government's reliance on the Necessary and Proper Clause of Article I, Section 8, is misplaced because that clause grants no independent power but merely "carries into execution" the powers enumerated elsewhere in that section. The commitment of prisoners after their terms simply is not one of the enumerated powers. While the government justifies its actions by invoking its implied power "to establish a federal penal system"—itself a necessary and proper auxiliary to certain enumerated powers—civil commitment is unrelated to creating or maintaining a penal system (let alone any enumerated power).

See full brief below for more information.

Contributor: Cato Institute [Full Profile | Docs Posted]

Harris v. Blockbuster: Amicus Curiae Brief of Electronic Privacy Information Center (EPIC) In Support of Plaintiffs - Appellees and Urging Affirmance

Electronic Privacy Information Center — Thu, 05 Nov 2009 11:37:37 GMT

Case Name: Harris v. Blockbuster
Document Name: Amicus Curiae Brief of Electronic Privacy Information Center (EPIC) In Support of Plaintiffs - Appellees and Urging Affirmance
Post Date: 11/05/2009
Filing Date: 11/03/2009
Document Summary: EPIC Urges Court to Enforce Video Privacy Law

On November 3, 2009, EPIC filed a friend of the court brief with the Fifth Circuit Court of Appeals, urging the Court to enforce federal privacy protections for Facebook users who rented videos from Blockbuster, a Facebook business partner. The Video Privacy Protection Act prohibits companies from revealing consumers' video rental histories. EPIC wrote, "Congress established a private right of action to ensure that there would be a meaningful remedy when companies failed to safeguard the data they collected" and warned, "absent a private right of action, there would be no effective enforcement, no remedy for violations, and no way to ensure that companies complied with the intent of the Act." The lawsuit was filed by Cathryn Harris and other Facebook users after Blockbuster made public their private video rental information. Blockbuster, a participant in Facebook's Beacon program, claimed that consumers cannot sue the company and must submit to mandatory arbitration. EPIC's brief, which includes a detailed history of the video privacy law, urges the appeals court to uphold a lower court ruling, which held that the plaintiffs are allowed to pursue their claim that a federal law was violated.

Please see full brief below for more information.

Contributor: Electronic Privacy Information Center [Full Profile | Docs Posted]

Jewel v. NSA: Notice of Order By Court of Appeals Granting Rehearing En Banc In Mohamed v. Jeppesen Dataplan, Inc.

Electronic Frontier Foundation — Thu, 05 Nov 2009 17:09:26 GMT

Case Name: Jewel v. NSA
Document Name: Notice of Order By Court of Appeals Granting Rehearing En Banc In Mohamed v. Jeppesen Dataplan, Inc.
Post Date: 11/05/2009
Filing Date: 11/03/2009
Document Summary: In Jewel v. NSA, EFF is suing the NSA and other government agencies on behalf of AT&T customers to stop the illegal, unconstitutional, and ongoing dragnet surveillance of their communications and communications records.

Jewel v. NSA is aimed at ending the NSA’s dragnet surveillance of millions of ordinary Americans and holding accountable the government officials who illegally authorized it. Evidence in the case includes undisputed documents provided by former AT&T telecommunications technician Mark Klein showing AT&T has routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA. That same evidence is central to Hepting v. AT&T, a class-action lawsuit filed by EFF in 2006 to stop the telecom giant’s participation in the illegal surveillance program.

In addition to suing the government agencies involved in the domestic dragnet, Jewel v. NSA also targets the individuals responsible for creating, authorizing, and implementing the illegal program, including former President George W. Bush, former Vice President Dick Cheney, Cheney’s former chief of staff David Addington, former Attorney General and White House Counsel Alberto Gonzales, and other individuals who ordered or participated in the warrantless domestic surveillance.

In April, the Obama administration moved to dismiss Jewel, claiming that litigation over the wiretapping program would require the government to disclose privileged "state secrets,” and that they were immune from suit. These are essentially the same or worse arguments than those made by the Bush administration when it first set out to dismiss EFF’s case against the AT&T back in 2006. On July 15, 2009, the court heard arguments on the government's motion to dismiss Jewel.

Please see full brief below for more information.

Contributor: Electronic Frontier Foundation [Full Profile | Docs Posted]

Tropp v. Conair Corporation, et al.: Memorandum and Order

Ronald Coleman — Thu, 05 Nov 2009 19:40:33 GMT

Case Name: Tropp v. Conair Corporation, et al.
Document Name: Memorandum and Order
Post Date: 11/05/2009
Filing Date: 11/02/2009
Document Summary: This is an action for patent infringement by David Tropp, inventor of an innovative system for making airline luggage inspection secure while accommodating the needs of the traveler, in which dual access locks that can be opened by the luggage owner and the TSA are provided to consumers, as described and claimed in U.S. Patent Nos. 7,021,537 (“the ’537 patent”) and 7,036,728 (“the ’728 patent”).

Here the defendant distributors* of infringing products moved for a stay pending resolution of a related case against another defendant alleged to be a manufacturer or otherwise the purported licensor of the infringing items, Travel Sentry, Inc. v. Tropp, 1:06-cv-06415 (the “Travel Sentry Action”) in the Eastern District of New York.

Tropp submitted this memorandum of law in opposition to the motion by the defendants to stay the action pending the resolution of the Travel Sentry Action in the same court. The procedural facts as set out in the defendants' brief were adopted here for purposes of the motion.

The case law favored denial of the stay request. Tropp's patents, of course, are presumptively valid pursuant to 35 U.S.C. 282. Defendants cited rafts of cases, but they were almost all based on materially inapposite facts, especially as to the key issues of party identity in the respective cases. They also misstated the relevant considerations when analyzing the stages and filing dates of the earlier- and later-filed case. Furthermore, the equities and balancing of harms favored a denial of the stay.

In essence, per the opinion, the court agreed with Tropp.

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* The defendants were represented by Seyfarth Shaw LLP, which submitted the papers in which the other defendants, represented by Greenberg Traurig, Simpson Thacher, Cooley Godward, Abelman Frayne, Cowan Leibowitz, Birch Stewart, Baker Botts and Buchanan Ingersoll, joined (either affirmatively or implicitly).

Contributor: Ronald Coleman [Full Profile | Docs Posted]

IN RE VICTOR DEL RIO: PETITION FOR IMMEDIATE RELIEF - STATE ACTION

Victor Del Rio — Tue, 03 Nov 2009 18:42:30 GMT

Case Name: IN RE VICTOR DEL RIO
Document Name: PETITION FOR IMMEDIATE RELIEF - STATE ACTION
Post Date: 11/03/2009
Filing Date: 11/02/2009
Document Summary: CONSPIRACY INVOLVING ATTORNEY GENERAL, ABUSE OF POWER, DISCRIMINATION.

Contributor: Victor Del Rio [Full Profile | Docs Posted]

University of Ala. Bd. of Trustees v. New Life Art, Inc.: Memorandum Opinion

Tamera Bennett — Thu, 12 Nov 2009 13:34:26 GMT

Case Name: University of Ala. Bd. of Trustees v. New Life Art, Inc.
Document Name: Memorandum Opinion
Post Date: 11/12/2009
Filing Date: 11/02/2009
Document Summary: Visual artist Daniel Moore won at the trial level against the University of Alabama's lawsuit alleging Moore's original fine art violated the University's trade dress rights in the school’s football uniform and crimson color.

The litigation begin in 2005 after numerous years of an amicable relationship between the parties. In a very large nut shell, from 1991 to 2000 there was a licensing agreement in place allowing Moore to reproduce and offer for sale certain visual works that included “indicia” of the University/Football team. “Indicia” was defined to include logos, seals, symbols and “Colors: Crimson PMS 201 Gray PMS 429.” In none of the agreements were “uniforms” included as “Indicia.”

After the agreement ended, Moore continued to create fine art visual works that included the football team, and uniforms --- but not “Indicia.” Moore’s defense, “if I am not including ‘Indicia’ there is no reason to pay a royalty.” The University claimed common law trade dress rights in the team’s uniforms and crimson color and that Moore’s paintings infringed upon such trade dress rights.

The Opinion is long but does a good job of setting out the arguments. The case in my mind really turns on the decision in ETW Corp. v. JIREH Publishing, Inc., 332 F.3d 915 (6th Cir. 2003). ETW is the Tiger Wood’s case where the publisher distributed limited edition prints of Tiger Woods. The court in ETW made it clear that First Amendment freedom of express trumps publicity rights when the work is an original or true limited edition fine art, works of art. If the were talking about coffee mugs and t-shirts, a different decision would have been rendered.

Contributor: Tamera Bennett [Full Profile | Docs Posted]