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<title><![CDATA[Judge Won't  Toss Benefits for Same-Sex Partners]]></title>
<link><![CDATA[http://www.courthousenews.com/2013/05/24/57954.htm]]></link>
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<description><![CDATA[&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;EL PASO (CN) - A Texas state judge refused to stop El Paso County from providing health benefits for its employees' same-sex partners, disagreeing with arguments such benefits violate the Texas Constitution.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Judge Patrick Garcia of the 384th District Court refused to issue a temporary injunction against an ordinance allowing the payments on Tuesday, the El Paso Times reported .&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The suit was filed by community activist Carl Starr against county judge Veronica Escobar on May 1; in it he argued the county's policy to extent benefits to unmarried partners is in violation of the constitution. Voters in Texas voted to amend the constitution in 2005 that banned same-sex marriages.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"I still have a case," Starr told the Times after the ruling. "My suit continues on the merits for a permanent injunction."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Starr argued in court that as a taxpayer, he would suffer "imminent irreparable harm" if the county continued to spend money on the benefits.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Assistant county attorney Ruben Duarte disagreed, arguing the plaintiff had no evidence or testimony that demonstrated he was being affected by the county's policy.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Starr filed the lawsuit after Texas Attorney General Greg Abbott issued an opinion in April that local governments cannot legally offer health benefits to gay or straight unmarried couples.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;State Sen. Dan Patrick, R-Houston, asked Abbott for his opinion after several counties, cities and school districts in Texas have chosen to extend such benefits.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Abbott said state law uses the term "domestic partnership" only to describe a type of business entity. The constitution provision "explicitly prohibits" local government from creating or recognizing a legal status that is identical or similar to marriage between a man and woman, according to his opinion.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"The domestic partnerships about which you inquire are entirely a creation of the relevant political subdivisions," Abbott wrote. "By creating domestic partnerships and offering health benefits based on them, the political subdivisions have created and recognized something not established by Texas law."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Abbott declined to give an opinion on several suits concerning "defense of marriage" laws from other states before the U.S. Supreme Court. He says the court's decision could "call into question the enforceability" of Texas' gay marriage ban under the U.S. Constitution. Escobar told the Times she expects the suit to be dismissed after the commissioners court approves policy changes to address the issues raised in Abbott's opinion.]]></description>
<pubDate>Fri, 24 May 2013 14:16:00 -0700</pubDate>
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<title><![CDATA[Market Makers Sue Major Options Exchanges for Tens of Millions]]></title>
<link><![CDATA[http://www.courthousenews.com/2013/05/24/57930.htm]]></link>
<guid><![CDATA[http://www.courthousenews.com/2013/05/24/57930.htm]]></guid>
<description><![CDATA[&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;CHICAGO (CN) - Citadel Securities and others sued the nation's major options exchanges, including NYSE, NASDAQ and the Chicago Board Options Exchange, claiming they overcharged market makers millions of dollars in fees for seven years.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;A market maker is a company or person that quotes both buy and sell prices on a financial instrument or commodity held in inventory, to make a profit on the spread.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Citadel Securities, Group One Trading, Ronin Capital, Susquehanna Securities, and Susquehanna Investment Group sued the Chicago Board Options Exchange, the International Securities Exchange, the NASDAQ OMX PHLX fka the Philadelphia Stock Exchange, the NYSE Arca fka Pacific Exchange, and NYSE the MKT fka NYSE Amex fka American Stock Exchange, in Cook County Court.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The plaintiffs describe themselves as market makers for the defendants, providing liquidity to the securities market and filling customer orders in exchange for certain trading privileges.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"This case presents a remarkable situation," the complaint begins. "In this case, there is no dispute that the exchanges improperly charged fees to the market makers on millions of orders over an approximately seven-year period. Rather, the dispute arises from the exchanges' assertion that they are entitled to mischarge their members without taking any responsibility for it and without any liability under the law. This court, therefore, is faced with the spectacle of exchanges admittedly charging their members improper fees for approximately seven years and claiming the unfettered right to do so without any consequences or responsibility of any kind."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;From 2004 to 2011, the exchanges charged market makers fees on all public orders, ranging from $0.10 to $1.00 under its "payment for order flow" program (PFOF). But market-maker to market-maker orders, or orders submitted on behalf of a member's broker-dealer clients, were not supposed to be subject to the fees, the complaint states.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"By the fall of 2012, the exchanges were aware that, during the relevant time period, the exchanges had improperly charged the market maker PFOF fees on orders that were not subject to PFOF fees. Specifically, for approximately seven years, one of the exchanges' prominent member firms had incorrectly marked orders submitted to the exchanges as originating from public customers when in fact those orders were market-maker to market-maker orders, broker-dealer orders or proprietary orders. The subject firm has paid the exchanges $6,388,253 in penalties as well as an unidentified amount of 'transactions fees' in connection with its mismarking of orders," the complaint states.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The firm that marked the orders incorrectly is not named in the complaint, but the penalty matches a fine that Goldman Sachs paid to the exchanges as part of a settlement last year, Reuters reported on Wednesday.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The complaint states: "Belatedly, the exchanges now recognize that they were improperly charging PFOF fees on the market makers on the mismarked orders; however, the exchanges have not reimbursed any of the improperly charged PFOF fees to the market makers. In fact, after being approached by the market makers, the exchanges conferred and, acting in concert, refused to reimburse any of the improperly assessed fees to the market makers. The exchanges did not claim that any of the market makers did anything wrong or assert that the PFOF fees were compliant with the exchanges' rules or fee schedules. Rather, the exchanges simply asserted that they have no responsibility, and cannot be held liable, for improperly overcharging fees, even if it is in violation of their own rules and their own publicly-noticed fee schedules. The exchanges even refused to identify the number of orders affected or the amount of fees wrongly charged."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;During these 7 years, the Chicago Board of Options Exchange alone collected a total of $637.1 million in PFOF fees, the plaintiffs say.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;They claim the PFOF program also increased the flow of orders, thereby generating transaction fees, which for the Chicago Board of Options Exchange (CBOE) alone reached more than $1.7 billion.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"According to the CBOE's findings, the mismarking of orders was the result of two deficient order entry systems used by the Subject Firm during the relevant time period," the complaint states.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"The first system was implemented in 2004 and was designed to handle simple options orders. The CBOE found that this order entry system 'did not include a market maker order origin code' and 'defaulted automatically to the customer origin code in the vent a user did not select an origin code.'&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"The second system was implemented in 2008 and was designed to handle complex options orders. The CBOE found that this order entry system 'was programmed to code all orders with a C [customer] origin code."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The plaintiffs claim the exchanges have disavowed responsibility by citing a NYSE rule stating that the exchanges shall not be liable "for any loss, expense, damages or claims that arise out of the use or enjoyment of the facilities or services afforded by the exchange."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;But "the exchanges' reliance on these rules is baseless," the complaint states.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"The market makers' financial harm did not arise out of the 'use of' or 'enjoyment' of the exchanges' facilities or services. Rather, their financial harm is due to and caused by the exchanges' assessment of improper fees charged in violation of the exchange's own fee schedules and the exchanges' refusal to reimburse those accounts."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;They seek declaratory judgment holding the exchanges liable for the wrongly assessed fees and restitution of all PFOF fees.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;They are represented by Ellen Wheeler with Foley &amp; Lardner.]]></description>
<pubDate>Fri, 24 May 2013 04:24:00 -0700</pubDate>
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<title><![CDATA[Directors May Be Liable for Defunct Bank's Ruin]]></title>
<link><![CDATA[http://www.courthousenews.com/2013/05/24/57953.htm]]></link>
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<description><![CDATA[&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;(CN) - The directors of a defunct Florida bank may be liable for costing the bank $40 million and driving it into ruin, a federal judge ruled.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The Panama City, Fla.-based Peoples First Community Bank failed in December 2009, and was closed by the Office of Thrift Supervision.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;After the Federal Deposit Insurance Corporation took over as receiver, it sued eight former directors for negligence under Florida law and gross negligence under the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA). The FDIC alleged in the federal complaint that the former directors had approved 11 risky loans in violation of bank and regulatory policies, and had engaged in other improper lending practices and underwriting, causing more than $40 million in damages.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The directors, who include now-Panama City Mayor Greg Brudnicki, asked the court to dismiss the ordinary negligence claims under state law, arguing that directors are exempt from personal liability for their votes and decisions unless they engage in "conscious disregard for the best interest of the corporation, or willful misconduct."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;U.S. District Judge Richard Smoak agreed, but ruled that Raymond Powell, who had also served as the bank's president and CEO, was not entitled to the same protection.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;State law only insulates directors from personal liability, to encourage the service of qualified persons on governing boards of corporations, and the exemption does not apply to officers or employees, according to the May 15 ruling.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Smoak upheld the gross negligence claims against all directors, finding that the FDIC had pleaded them with sufficient particularity.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The FDIC's complaint described in detail one of the transactions, a $12.2 million loan for the development of 239 homes in Polk County, Fla., and claimed it was illustrative of the other allegedly-deficient loans, according to the ruling.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;But the defendants argued the FDIC should be required to provide more details about each transaction, and about the alleged misconduct of each former director.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"However, I find that Exhibit A to the complaint, which is the chart listing the eleven loans, their amounts and approval dates, which board members approved them, and their alleged deficiencies, is not only sufficient, but actually a very efficient way to present the allegations against each defendant without requiring dozens of paragraphs of repetitive legalese," Smoak wrote.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;And since the identities of the borrowers and guarantors are protected from public disclosure, they will be made available to the defendants during discovery, the ruling states.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The former directors failed to persuade Smoak that the losses caused by their alleged gross negligence should be pleaded separately from those caused by the collapse of the Florida real estate market.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;But the judge instructed the FDIC to file an amended complaint by May 29, showing how the directors' conduct is related to the bank's losses.]]></description>
<pubDate>Fri, 24 May 2013 14:00:00 -0700</pubDate>
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<title><![CDATA[Parents Blast Photographer for Telephoto Shots]]></title>
<link><![CDATA[http://www.courthousenews.com/2013/05/24/57929.htm]]></link>
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<description><![CDATA[&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;MANHATTAN (CN) - A Manhattan photographer featured in this week's New Yorker magazine violated privacy by using a telephoto lens to shoot photos of people through the window of their apartment, a family claims in court.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Photographer Arne Svenson's project and show are the subject of the second Talk of the Town article in next week's New Yorker magazine. The article by Raffi Khatchadourian does not mention the legal implications of how Svenson got the photos for his exhibit, "The Neighbors," at the Julie Saul Gallery through June in the Chelsea neighborhood.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Martha and Matthew Foster sued Svenson in New York County Court, on behalf of themselves and their minor children. The gallery is not a party to the complaint.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The Fosters live across the street from Svenson's studio, and say in their complaint that they had no inkling that he used them as his subjects for more than a year.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"On or about April 29, 2013, plaintiffs learned that an article had appeared in the Tribeca Citizen, a weekly news journal covering their neighborhood, which included a photograph of plaintiff Martha Foster holding her daughter Delaney inside their apartment," the complaint states.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Svenson intended to use the photo "in his May 9, 2013, exhibition at a Manhattan gallery," according to the complaint.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The Fosters say they learned later that Foster had been "surreptitiously photographing" them and other building residents for more than a year, starting in 2012.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Svenson may have taken "thousands of such unauthorized photographs" of his neighbors, the complaint states.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The Fosters say they did not consent to be photographed, and would have refused if asked.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;They say they were "deeply distressed" to find that their "children's faces were clearly recognizable," potentially "compromising their safety and security."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"Plaintiffs were also greatly frightened and angered by defendant's utter disregard for their privacy and the privacy of their children," the complaint states. "Plaintiffs now fear that they must keep their shades drawn at all hours of the day in order to avoid telephoto photography by a neighbor who happens to be a professional photographer."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The Fosters claim that Svenson stands to profit handsomely from "The Neighbors." A bit of Internet research showed that a Los Angeles gallery's exhibition quoted pictures of the children at $5,000 to $7,500 apiece, according to the complaint.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"Upon information and belief, Svenson intends to sell five prints of 'Neighbors #6' and 'Neighbors #12' for a total of $50,000-$75,000," the complaint states.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"Neighbors #6 shows Martha Foster holding her son James, with her daughter Delaney standing beside her. Delaney is wearing a bathing suit and James is wearing a diaper.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"Neighbors #12 shows Martha Foster holding Delaney in her arms. Delaney is wearing a bathing suit."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Svenson's press statements demonstrate his "disregard" of privacy concerns, the Fosters say.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"For my subjects there is no question of privacy," Svenson said in a promotional statement, according to the complaint. "The neighbors don't know they are being photographed; I carefully shoot from the shadows of my home into theirs. I am not unlike the birder, quietly waiting for hours, watching for the flutter of a hand or the movement of a curtain as an indication that there is life within."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Martha Foster claims she told Foster that she does indeed have questions about her family's privacy.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"Greatly concerned for the safety and security of her children, plaintiff Martha Foster contacted Svenson on or about May 2, 2013, to express her concerns and attempted to resolve the situation amicably," the complaint states. "Defendant was unwilling to completely stop selling and displaying images of plaintiffs' children."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;After this conversation, the Fosters retained attorneys and publicity for Svenson's project exploded, with NBC, CBS and ABC, the Washington Post, Los Angeles Times and New York Post lining up to profile the photographs, according to the complaint.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"These videos and articles include photographs that clearly picture plaintiffs' apartment building and many provide its address. 'Neighbors #12' continues to be displayed on a Facebook web page attributed to Svenson," the complaint states.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The Fosters seek actual and exemplary damages for intentional infliction of emotional distress and an injunction to stop the dissemination of the photographs.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;They are represented by Richard Menaker with Menaker &amp; Herrmann.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;An attorney specializing in First Amendment issues said that case law generally permits photographing from public property with a non-magnifying lens, but shooting through windows into private spaces with a telephoto raises privacy concerns.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Svenson did not immediately respond to a request for comment.]]></description>
<pubDate>Fri, 24 May 2013 04:24:00 -0700</pubDate>
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<title><![CDATA[Electronic Arts Must Face Former College QB's Suit]]></title>
<link><![CDATA[http://www.courthousenews.com/2013/05/24/57949.htm]]></link>
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<description><![CDATA[&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;(CN) - A former college quarterback may pursue claims against Electronic Arts for using his likeness in the best-selling video game "NCAA Football," the 3rd Circuit ruled.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Ryan Hart, quarterback from 2002 to 2005 for Rutgers State University in New Jersey, sued the California-based game developer in New Jersey Superior Court in 2009, claiming the company used his name and likeness without permission.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Hart said Electronic Arts created a virtual player with his exact attributes in four versions of the popular game, including height and weight, home state, skills and on-field accessories.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"NCAA Football," released annually, features more than 100 Division I college football teams and thousands of players from the National Collegiate Athletic Association. The game identifies players by jersey number and position, but not by name.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The virtual player in question wore Hart's actual jersey number, 13, a left wrist band and helmet visor - all attributes shared by the real life Hart - and even hailed from Florida.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;In September 2011, a federal judge dismissed Hart's right of publicity class action, citing First Amendment protection.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"Like the protected books, plays, and movies that preceded them, video games communicate ideas - and even social messages - through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world). That suffices to confer First Amendment protection," Judge Freda Wolfson wrote.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Wolfson found that there were "sufficient elements of EA's own expression found in the game that justify the conclusion that its use of Hart's image is transformative and, therefore, entitled to First Amendment protection," including "virtual stadiums, athletes, coaches, fans, sound effects, music, and commentary, all of which are created or compiled by the games' designers."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"Whatever First Amendment protection is afforded to commercial speech, 'NCAA Football' is not commercial speech," Wolfson added. "Defendant's First Amendment right to free expression outweighs plaintiff's right of publicity."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;On appeal, the 3rd Circuit on Tuesday reversed the decision and remanded the case to district court.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Citing the copyright-based "Transformative Use Test," the three-judge panel found that Electronic Arts did not "sufficiently transform [Hart's] identity to escape the right of publicity claim."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"The digital Ryan Hart does what the actual Ryan Hart did while at Rutgers: he plays college football, in digital recreations of college football stadiums, filled with all the trappings of a college football game. This is not transformative; the various digitized sights and sounds in the video game do not alter or transform [Hart's] identity in a significant way," the 73-page ruling states.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"Appellant's overall claim for violation of his right of publicity should have survived appellee's motion for summary judgment," Judge Joseph Greenaway Jr. wrote.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Judge Thomas Ambro said he sympathized with college athletes featured in "NCAA Football," but sided with the district court.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"EA's use of actual college athletes' likenesses motivates buyers to purchase a new edition each year to keep up with their teams' changing rosters. The burn to Hart and other amateur athletes is that, unlike their active professional counterparts, they are not compensated for EA's use of their likenesses in its video games," Ambro wrote in dissent. "Were this case viewed strictly on the public's perception of fairness, I have no doubt Hart's position would prevail."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"I sympathize with the position of Hart and other similarly situated college football players, and understand why they feel it is fair to share in the significant profits produced by including their avatar likenesses into EA's commercially successful video game franchise," Ambro added. "I nonetheless remain convinced that the creative components of 'NCAA Football' contain sufficient expressive transformation to merit First Amendment protection."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Hart holds the Scarlet Knights' records for career attempts, completions and interception. He led the team to the Insight Bowl during his senior season, Rutgers' first bowl game since 1978.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"NCAA Football" was launched in 1993 as "Bill Walsh College Football." The latest edition of the game is scheduled to be released July 9.]]></description>
<pubDate>Fri, 24 May 2013 10:50:00 -0700</pubDate>
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<title><![CDATA[De La Hoya Cleared of Playboy Model's Charges]]></title>
<link><![CDATA[http://www.courthousenews.com/2013/05/23/57915.htm]]></link>
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<description><![CDATA[&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;(CN) - An appellate court dismissed a former Playboy model's allegations that boxer Oscar de la Hoya trapped her in a Ritz Carlton hotel room and forced her to perform "disgusting" sexual acts.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Cecora said she and De La Hoya, the former "Golden Boy" of boxing, had sex in the luxury hotel room, then he put on her underwear and ordered $300 dollars worth of cocaine and marijuana to be delivered to the room, Reuters reported .&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;He then began asking Cecora to perform "disgusting" sexual acts, according to the complaint.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"Oscar came off as a nice genuine person when I met him," Cecora said outside the courthouse in 2012, CBS reported . "As the night proceeded, he started to get a little bit out of control. Things took a wild turn that they shouldn't have, that I didn't sign up for. Oscar took advantage of me in every way possible."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;But the superior court dismissed Cecora's case, and the New York Appellate Division affirmed the decision Tuesday&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Cecora's claim that she was placed in "imminent apprehension of harmful contact by defendant's sexual advances was contradicted by the allegations of the complaint," the court said.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;In addition, "plaintiff did not allege that defendant intended to confine her and there is nothing in the complaint suggesting that defendant did anything to lead her to believe that she could not leave. Nor did plaintiff allege conduct that approaches the level of outrageousness or extremity necessary to support a claim of intentional infliction of emotional distress or a causal connection between the alleged conduct and plaintiff's claimed distress," the court ruled.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The court also affirmed an order sanctioning plaintiff and her attorney for conduct "undertaken primarily to harass or maliciously injury defendant."]]></description>
<pubDate>Thu, 23 May 2013 11:54:00 -0700</pubDate>
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<title><![CDATA[Scientists Plan to Avoid Global Tipping Point]]></title>
<link><![CDATA[http://www.courthousenews.com/2013/05/24/57944.htm]]></link>
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<description><![CDATA[&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;SACRAMENTO, Calif. (CN) - Hundreds of the world's top scientists outlined five crucial environmental concerns that "policymakers must address" to avoid a global tipping point, in a call to action endorsed by Gov. Jerry Brown.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"This is not just about science, this is about activism," Gov. Brown said in a statement Thursday. "This is an important challenge, cause and undertaking. We can do it, but we have to do a lot more than we're doing now."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The scientists released the call to action and a 51-page consensus statement at the fourth annual Water, Energy and Smart Technology Summit and Showcase at NASA Ames Research Center in Mountain View, Calif.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Drafted at Gov. Brown's behest, the consensus statement "translates key scientific findings from disparate fields into one unified message" that seeks to help policymakers address climate change at the political level.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"Here are 520 scientists from throughout the world making a very strong statement ... about Earth's environmental problems, and we're putting it in the hands of policy makers so they can understand and start formulating solutions," Anthony Barnosky, UC Berkeley professor of integrative biology and lead author of the consensus statement, told UC Berkeley's News Center.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The consensus statement identifies 5 key areas wherein human impacts threaten the quality of life for future generations: climate change, extinctions, ecosystem loss, pollution, and population growth, according to the press release.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The scientists claim in the press release that, given current global trends, Earth will reach its hottest climates in human history by 2070, and lose "75 percent of vertebrate species" within 300 years. They also say that humans have irreparably altered 40 percent of the planet's "ice-free lands," which has reduced its biodiversity; have exposed the environment and millions of people to record levels of toxic pollutants; and have increased levels of greenhouse gases through unchecked population growth.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The consensus statement offers several possible solutions to these issues, including switching from fossil fuels to "carbon-neutral energy technologies; developing newer, safer chemicals and phasing out older ones; curbing urban sprawl; investing in ecosystem restoration projects; and eventually halting population growth by ensuring that everyone, especially women, has access to birth control.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The consensus statement has been signed by more than 500 scientists from 44 countries, including "two Nobel laureates, 33 members of the U.S. National Academy of the Sciences and members of the international scientific academies," according to the governor's release.]]></description>
<pubDate>Fri, 24 May 2013 07:52:00 -0700</pubDate>
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<title><![CDATA[Nursing Home Avoids Fines for Soft Egg Yolks]]></title>
<link><![CDATA[http://www.courthousenews.com/2013/05/24/57948.htm]]></link>
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<description><![CDATA[&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;(CN) - A Texas nursing home will not face penalties for serving patients soft-cooked eggs, the 5th Circuit ruled.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;During a 2010 investigation of the Elgin Nursing and Rehabilitation Center, agents from the Texas Department of Aging and Disability discovered runny egg yolk on two breakfast plates.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The agents learned that the kitchen staff had prepared soft-cooked eggs for five patients that day at the patients' request.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The problem, the state agency claimed, was that the nursing home used unpasteurized eggs, which could make patients sick when left with runny yolks.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The Center for Medicare and Medicaid Services (CMS) slapped the nursing home with several penalties, eventually removing most of them but leaving a $5,000 fine.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The nursing home, located in Central Texas near Austin, fought the penalty and argued that it met the temperature requirement for safely preparing eggs. However, both an administrative law judge and the U.S. Department of Health and Human Services Appeals Board upheld the fine.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;After reviewing the appeals board decision, a three-judge panel from the New Orleans-based 5th Circuit set aside the penalty.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Chief Judge Jerry Smith penned the 12-page order issued by the panel last week.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The panel examined the CMS State Operations Manual and found the section on the final cooking temperature for eggs "inherently ambiguous."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"It states that '[f]oods should reach the following internal temperature,' but its description of eggs includes '145 degrees F for 15 seconds; until the white is completely set and the yolk is congealed,'" Smith wrote. "There are thus two possible requisites: (1) time and temperature and (2) degree or extent of congealing. CMS's proposed interpretation treats that phrase as conjunctive - absence of either is a violation. Elgin proposes that the phrase is disjunctive - meeting either is sufficient."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The panel agreed with the nursing home, and given the lack of evidence to show that the facility undercooked the eggs, it set aside the previous decision by the appeals board. Smith added that the Department of Health and Human Services "may not issue ambiguous interpretive documents and then interpret those in enforcement actions - we will not defer to that level of agency interpretation."]]></description>
<pubDate>Fri, 24 May 2013 10:42:00 -0700</pubDate>
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<title><![CDATA[Banker Fined $100,000 in Political Scheme]]></title>
<link><![CDATA[http://www.courthousenews.com/2013/05/24/57927.htm]]></link>
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<description><![CDATA[&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;WASHINGTON (CN) - Former Goldman Sachs investment banker Neil M.M. Morrison was fined $100,000 for his role in a pay-to-play scheme involving secret campaign contributions to former Massachusetts Treasurer Timothy Cahill's campaign for governor, the SEC said.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Morrison also will be barred from the securities industry for 5 years, the SEC said in its settled complaint.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Goldman Sachs paid more than $12 million to settle the charges when the SEC sued it and Morrison last September.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Morrison was a vice president for Goldman Sachs when the funny business began, the SEC said in its newly settled complaint against Morrison, which echoes charges in the September complaint.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"Starting in July 2008, Morrison was employed by Goldman Sachs to solicit municipal underwriting business from, among others, the Massachusetts Treasurer's Office," the SEC said in its cease and desist order against Morrison, issued Thursday. "During the period November 2008 to October 2010, however, Morrison was also substantially engaged in the political campaigns, including the November 2010 Massachusetts gubernatorial campaign, for Timothy P. Cahill ('Cahill'), the then-Treasurer of Massachusetts.2 Morrison participated extensively in Cahill's gubernatorial campaign and did so at times from his Goldman Sachs office, during his Goldman Sachs work hours and using Goldman Sachs resources, such as phones, e-mail and office space. Morrison's campaign work gave him complete access to Cahill and his staff, who often provided him with information about the office's internal deliberations involving underwriter selection.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"Morrison's campaign activities during his Goldman Sachs work hours and use of Goldman Sachs resources constituted valuable undisclosed 'in-kind' campaign contributions to Cahill attributable to Goldman Sachs. In addition, during the same period, Morrison circumvented the pay-to-play rules by making an indirect contribution to the Cahill campaign through another person in violation of MSRB Rule G-37(d). Moreover, Morrison solicited campaign contributions for Cahill when Goldman Sachs was engaged in or seeking to engage in municipal underwriting business with the Treasurer's Office in willful violation of MSRB Rule G-37(c).&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"Within two years of these campaign contributions, Goldman Sachs engaged in municipal securities business with issuers associated with Cahill as Treasurer of Massachusetts and as a candidate for Governor of Massachusetts."]]></description>
<pubDate>Fri, 24 May 2013 04:24:00 -0700</pubDate>
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<title><![CDATA[Cop Sent to Prison for Pummeling Man in Cuffs]]></title>
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<description><![CDATA[&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;LAREDO, Texas (CN) - A former Laredo policeman caught on his squad car's dash cam pummeling a handcuffed man was sentenced to 1 year in federal prison.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Frank Carter, 43, pleaded guilty to violating the civil rights of an arrestee, the U.S. Attorney's Office said in a statement.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"Carter admitted that on May 26, 2012, while using his authority as a LPD officer, he struck a male victim who was handcuffed and detained in the backseat of Carter's patrol car. Carter admitted he struck the victim several times," prosecutors said.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"According to information presented in court at the time of the plea, rear facing dash camera audio and video recordings revealed Carter had yelled obscenities at the victim while he punched the victim in the head and body. Carter also repeatedly slammed the victim's face into the back of the seat. The victim remained handcuffed during the entire incident and never resisted or attempted to harm Carter."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;U.S. District Judge Diana Saldana also ordered Carter to complete 75 hours of community service after he is released. The judge allowed Carter to remain free on bond and voluntarily turn himself in to a federal prison "in the near future," prosecutors said. ]]></description>
<pubDate>Fri, 24 May 2013 10:17:00 -0700</pubDate>
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<title><![CDATA[Pizza Chain Claims Pepsi Played Dirty]]></title>
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<description><![CDATA[&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;LOS ANGELES (CN) - PepsiCo., angry because California Pizza Kitchen was terminating its purchase agreement for fountain drinks, sent the confidential agreement to Coca-Cola to interfere with the pizza chain's business, the company claims in court.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;California Pizza Kitchen sued Pepsico Sales in Superior Court, for interference and breach of contract.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The pizza chain claims that when it told Pepsi it was ending its supply agreement for fountain drinks, Pepsi intentionally emailed the agreement to Coca-Cola "as part of Pepsi's attempt to prevent CPK from engaging in future business with Pepsi's rival."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;California Pizza Kitchen, which has more than 200 restaurants in 32 states, claims it told Pepsi in April that it was terminating its agreement for "failure to provide an acceptable level of quality and service."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"Pepsi immediately wrote in response that it was not willing to terminate the Fountain Agreement and that, if CPK was not willing to continue under the Fountain Agreement, Pepsi would pursue legal action against CPK to recover alleged damages in excess of $5 million," the complaint states.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Pepsi's email "set forth in writing specific terms and conditions of the Fountain Agreement, including its term, minimum purchase requirements, and contractual remedies in the event of a breach, and - despite a specific non-disclosure covenant in the Fountain Agreement - copied The Coca-Cola Company on its correspondence," according to the complaint.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;California Pizza Kitchen claims that this April was not the first time it had told Pepsi of its concerns that "CPK's carbonated soft-drink incidence was at or near the lowest in the industry and had experienced considerable year-over-year decline." It claims it warned Pepsi about this in November 2011, and repeatedly in 2012, but Pepsi "was unable to identify effective solutions for reversing the declining trends."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Pepsi began working as California Pizza Kitchen's exclusive fountain drink supplier in 2007.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;California Pizza Kitchen seeks damages for breach of contract and tortious interference.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;It is represented by Peter Marketos and Leslie Chaggaris of Reese Gordon Marketos in Dallas. ]]></description>
<pubDate>Fri, 24 May 2013 04:24:00 -0700</pubDate>
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<title><![CDATA[Texas Pastor Surrenders to Face Fraud Charges]]></title>
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<description><![CDATA[&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;HOUSTON (CN) - A self-styled pastor and real estate investor surrendered to federal authorities on charges that he conned $650,000 from a woman, the U.S. Attorney's Office said.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Samuel Ray Palasota, 52, of Houston, turned himself in following the return of a 24-count indictment, including 21 counts of mail fraud and three counts of wire fraud, federal prosecutors said in a statement.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Palasota "claimed to manage a real estate investment program, doing business under the name 'The Maker's Resources,' and "allegedly convinced a Mississippi woman to invest her money with him in an alleged real estate investment," but stole her money, prosecutors said, citing the indictment.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"The woman divorced in 2007 and looked to Palasota for spiritual guidance and emotional support, according to the indictment. During the time she was seeking guidance from him, she received approximately $1 million in her divorce settlement," prosecutors said in the statement.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"Palasota allegedly claimed to have a real estate investment program, in which he would purchase foreclosed homes in the Houston area at below-market prices and would later re-sell them for a profit. The indictment alleges Palasota told the woman he wanted investors who would partner with him to finance the purchase of the properties. As part of his scheme, Palasota claimed his real estate investment was 'guaranteed' to provide a high rate of return to investors.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"The indictment indicates he provided the woman with an investment schedule that claimed the minimum rate of return would increase by five percent for every additional $100,000 she invested, up to a maximum of $650,000.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"The woman subsequently invested the maximum $650,000 in Palasota's scheme, according to allegations. Palasota then allegedly used those funds for his personal benefit, including paying his personal expenses and purchasing automobiles."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;If convicted, Palasota faces up to 20 years in federal prison and a $250,000 fine for each of the 24 counts against him. ]]></description>
<pubDate>Fri, 24 May 2013 10:34:00 -0700</pubDate>
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<title><![CDATA[SEC Says Adviser Stole from Widows]]></title>
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<description><![CDATA[&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;ATLANTA (CN) - A 36-year-old Georgia investment adviser stole $2 million from clients, most of it retirement savings or life insurance from dead spouses, the SEC claims in court.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Blake B. Richards, of Buford, Ga., was a registered representative and investment adviser with LPL Financials, which fired him this month and is not a party to the case, according to the complaint.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Richards "misappropriate approximately $2 million from at least six individuals," the SEC says in the complaint. "At least two of these investors are elderly, and the majority of the apparently misappropriated funds constituted retirement and/or life insurance proceeds from deceased spouses."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Since 2008, instead of rolling over IRA accounts as his clients requested, Richards told them to write checks to "Blake Richards Investments," or "BMO Investments," then stole most of the money, the SEC says: "Richards, whose production at LPL Financial has been virtually nonexistent over the past few years, began siphoning off funds from clients, and converting them to his personal use."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;For instance, Richards appears to have stolen more than $350,000 from one widow, $440,000 from an elderly widow, can't account for most the $480,000 he apparently swiped from another widow, and lied to all of them all along the way, the SEC says in the complaint.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;He gave at least one client "a fictitious on what purported to be LPL letterhead," and gave at least one a business card identifying himself as an Accredited Asset Management Specialist, which he is not, the SEC says.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Lanier Wealth Management LLC, in Buford, "is a business apparently owned by Richards," through which he conducted business, the complaint states.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The SEC wants his assets frozen, disgorgement, penalties and an injunction.]]></description>
<pubDate>Fri, 24 May 2013 04:24:00 -0700</pubDate>
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<title><![CDATA[Unfair Suspension for Talk of Mass Murder?]]></title>
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<description><![CDATA[&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;(CN) - A student's boast that he could kill more than 50 people at his high school was just a private conversation between teenagers, not grounds for a suspension that lasted the rest of the school year, his lawyer told the 9th Circuit.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Landon Wynar was suspended after friends showed Douglas County High School officials disturbing instant messages he had sent them the night before.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;After the officials questioned Wynar, they had him arrested. They also suspended him for ten days and then increased the suspension to 90 days, which covered the remainder of the 2007-2008 school year.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Wynar, who claimed that he had been joking and never intended to harm anyone, sued the Minden, Nev., school district in 2009 for violating his constitutional rights. He wanted an order expunging his school records, permission to make up his schoolwork and at least $100,000 in compensatory damages.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;In 2011, a federal judge dismissed the suit in summary judgment, ruling that the school district had not violated Wynar's First Amendment rights since they "had a reasonable basis to forecast a material disruption to school activities."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"In his messages, [Wynar] invoked the image of the Virginia Tech massacre," said the order by U.S. District Judge Larry Hicks. "He stated that he had access to guns and ammunition. He wrote about getting 'the record' for school shootings and made specific references to girls and the school by name. Further, he had a specific date in mind for carrying out his threats, April 20th, the anniversary of the Columbine massacre."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Wynar's instant messages said he would kill more people than "that stupid kid from vtech," referring to the 2007 Virginia Tech massacre in which 32 people were killed. He also wrote: "he didnt do shit and got a record. i bet i could get 50+ people and not one bullet would be wasted."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;In other messages he threatened to shoot a girl's "boobs off" and named students whom he planned to kill, writing "and ill probly only kill the people i hate? who hate me then a few random to get the record."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Hicks' order said school officials had no way of knowing that Wynar was joking, "because there is no inference that can be drawn solely from his statements that he was joking or had no intent to carry out the threats."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Wynar's attorney, however, told a three-judge panel of the 9th Circuit last week the communications happened entirely off campus and no threat was ever directly communicated to the school staff or students.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Jeffrey Blanck said the school district failed to meet the mens rea requirements of the criminal statute banning threats that was used to expel Wynar. Specifically, the school district never showed that Wynar intended to frighten students or employees, cause a panic, or interfere with school operations.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"We have a conversation between two 16-year-old boys, with improper, vulgar language that was done at home. Landon never took it to school," he said. "The school can take action but it doesn't meet the definition of a threat that requires expulsion."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"What happened here was almost strict liability. What they're saying is, 'You said these words and we found out about it and because you said these words, you're going to be kicked out of school, expelled for 90 school days and we don't care what your explanation is.'"&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Circuit Judge Paul Watford said he thought the school could take some initial action based solely on the likelihood that Wynar's words could cause a disruption at school. "We can have an inquiry later to see whether this kid is really serious or not, but on its face, the speech is frightening," he said.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Blanck agreed, saying the initial ten-day suspension was alright, but that the 90-day suspension was imposed without any psychological evaluation of Wynar and in reliance on a Nevada criminal threat statute that required the school to show Wynar had formed intent.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"School erroneously found a threat without a determination of intent," he said.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;In his brief to the 9th Circuit, Blanck wrote, "[Wynar] never made a threat to any student and never broke any school rule. There was no hit list and he had no weapons or access to weapons; it was all just teenage banter. [Wynar]'s First Amendment rights to the United States Constitution were violated by his expulsion and he was denied due process."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Circuit Judge M. Margaret McKeown queried Blanck: "If I say 'I'm gonna go down to that school and shoot up all the students,' and the students don't know and therefore I don't have a threat?"&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"Correct. That's the Supreme Court's position. That doesn't mean the school can't take action, but it's not a criminal threat," he replied.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Ann Alexander, the Douglas County School District's lawyer, said the school was obligated by 9th Circuit rules set forth in LaVine v. Blaine School District to impose a 90-day suspension.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;District Judge Thomas Zilly, sitting on designation from the Western District of Washington, noted that in LaVine, the student, unlike Wynar, had brought a threatening poem to the school and handed it to the teacher.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Alexander replied that other Circuit Courts have ruled that, "In an electronic era, it is now also reasonably foreseeable that this kind of communication, particularly among students and about students is going to find its way to campus."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"The 90-day suspension was based on the school district's conclusion that these were credible threats," she said.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Nevada's laws did not give the school district as many options for dealing with Wynar as would the laws of some other states, but she said Wynar was given substantive due process.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"There was no First Amendment violation here. If we're just arguing about the amount of discipline imposed, or how they managed it ... the federal court is not the place to relitigate even disciplinary decisions that we might think in retrospect were perhaps unwise." ]]></description>
<pubDate>Fri, 24 May 2013 07:37:00 -0700</pubDate>
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<title><![CDATA[Judge Protects Secret Service Records]]></title>
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<description><![CDATA[&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;WASHINGTON (CN) - A federal judge won't force the Secret Service to give up files on its Inauguration Parade security tactics, ruling against a civil rights group locked in an eight-year fight with the government on where and how they can protest the event.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Answer, a grassroots organization whose name is short for Act Now to Stop War and End Racism, has long fought against federal policies restricting demonstrations during the Presidential Inauguration Parade.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;U.S. District Judge Paul Friedman granted Answer's motion for discovery in 2007, but the Secret Service withheld and redacted its records relating to the prohibition of sign supports.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;In his most recent ruling in the 2005 case, Friedman ruled that Magistrate Judge Alan Kay rightfully ruled that the Secret Service was justified in withholding the information.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;National Park Service regulations set aside the White House sidewalk and three-quarters of Lafayette Park for exclusive use of the Presidential Inaugural Committee for inaugural activities.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The regulations allowed demonstrators and others to obtain permits for other areas, but it would not accept permit applications outside one year of the event.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Answer had previously brought a successful challenge to the agency's unequal permit requirements, and to its policy of granting the Presidential Inauguration Committee exclusive use of the space along the parade route.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"The inaugural parade is not an invitation only event," Answer said in its 2005 complaint against Interior Secretary Ken Salazar. "It is perhaps the most public of all public ceremonial events in a democracy, the inauguration of a president."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Judge Friedman gave Answer standing to sue earlier this year, but won't force the Secret Service to cough up details on sign supports.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The agency claimed attorney client privilege, attorney work product and law enforcement as reasons to withhold the records, and the magistrate judge backed it up. Judge Friedman agreed with the Judge Kay's decisions, despite disagreeing with how Kay arrived at his decision regarding the law enforcement documents.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"The Court finds no error in either Judge Kay's analysis or his conclusions relating to the attorney-client privilege, attorney work product, or relevance," Judge Friedman states. "It therefore declines to order, or undertake itself, an additional review of the remaining documents withheld on these grounds."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The judge denied Answer's request for a court order forcing the release of the documents.]]></description>
<pubDate>Thu, 23 May 2013 13:12:00 -0700</pubDate>
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<title><![CDATA[No Injunction for Guantanamo Detainee]]></title>
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<description><![CDATA[&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;(CN) - A Guantanamo Bay detainee unable to show he has been irreparably harmed will not be repatriated to his native Yemen, a federal judge ruled.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;In 2008, the Supreme Court decision Boumediene v. Bush failed to explain what happens to a Guantanamo Bay detainee's habeas claim once he is transferred or released, leaving this question for the D.C. district court to address.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;In April 2010, U.S. District Judge Thomas Hogan found that the district court cannot remedy the alleged collateral consequences of the petitioners' prior detention at Guantanamo, and therefore dismissed their habeas claims as moot.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Petitioner Hani Saleh Rashid Abdullah, a Yemeni national, filed a motion for a preliminary injunction to release him unless his detention complies with the Third Geneva Convention. He also asked the court to direct the respondents, which include President Barack Obama, the Secretary of Defense, and commanders overseeing Guantanamo Bay, to adhere to the 1946 Yemen Agreement, which allegedly prohibits it from refusing to repatriate him to Yemen and detaining him indefinitely in violation of international law.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The respondents opposed, arguing that Abdullah cannot challenge their suspension of repatriations to Yemen given the country's instability. They also claimed that, since Abdullah believes he is viewed as a detainee too dangerous to repatriate, even pending improvement in Yemen's security situation, he cannot trace their failure to repatriate him to their decision to suspend repatriations to Yemen.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The respondents further suggested that Abdullah has neither been irreparably harmed nor justified interim release. Abdullah responded that he does not actually seek pre-adjudication release, and instead seeks merely "compliance with the Yemen Agreement."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;U.S. District Judge Richard Roberts denied Abdullah's motion Tuesday.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"If Abdullah seeks pre-adjudication release, he has not made any showing that his case is one where pre-adjudicative release is necessary to effectuate habeas," Roberts wrote. "Nor has he shown a lesser harm to the respondents if they cannot regain his custody should habeas be ultimately found unwarranted, or likewise that the public interest would favor the release now on an as-of-yet unadjudicated habeas claim. If Abdullah does not seek readjudicative release, he has not explained what irreparable injury he faces outside of the injuries addressed by the merits of underlying habeas petition itself if his order is not granted, and he has not explained how the order he seeks would rectify that injury. Nor has he shown the public interest and a lesser harm in precluding the executive from making assessments about the stability and safety of nations to which detainees might be transferred. Accordingly, it is hereby ordered that the petitioner's motion for a preliminary injunction be, and hereby is, denied."]]></description>
<pubDate>Thu, 23 May 2013 13:01:00 -0700</pubDate>
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<title><![CDATA[Superman Rights Case Flies to 9th Circuit]]></title>
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<description><![CDATA[&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;PASADENA, Calif. (CN) - The 9th Circuit should overturn a court order invalidating termination of copyright notices filed by the family of Superman co-creator Joseph Shuster, an attorney at the center of the dispute told the appeals court.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The families of the late writer Jerome Siegel and artist Joe Shuster are engaged in a long-running battle with Warner Bros. and its DC Comics subsidiary over rights to the Man of Steel.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;In a May 2010 complaint, DC Comics claimed Marc Toberoff of Malibu, Calif. convinced the Siegel and Shuster's families to terminate their agreements with DC Comics and file copyright notices.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;According to the publisher, the families entered into a joint venture with Toberoff's Pacific Pictures, granting him a controlling stake of their interest in the superhero character.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;After Shuster's death, his sister Jean Peavy purportedly signed a 1992 agreement where DC agreed to settle Joe's debts, and pay Peavy and Shuster's brother Frank a payment of $25,000 per year for the rest of Peavy's life.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Granting DC Comic's motion for partial summary judgment last year, Wright ruled that the 20 year old agreement was binding, and superseded any earlier agreements between Shuster and the comic book publisher.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The agreement not only reestablished DC's rights in Superman, it barred Jean, or Shuster's brother Frank, from making future claims to those rights, Wright ruled.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;After the Copyright Extension Act of 1998 granted heirs termination rights, Jean's son Mark Warren Peavy served DC Comics in 2003 with a notice of termination.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;But Wright ruled that Peavy's deal extinguished the chance to revisit the terms of Shuster's grant of copyright.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Shuster never terminated earlier grants of Superman copyrights before his death, and "by entering into the 1992 Agreement - which increased Frank and Jean's payments - the heirs essentially struck a deal that binds all other heirs," Wright wrote his Oct. 17 order. But on Thursday, Toberoff told the three-judge panel of the 9th Circuit to reverse.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Wright "committed clear error" by ruling that Peavy and DC's one-page pension agreement barred the Shusters from exercising their termination rights, the attorney said.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Frank and Jean had no termination right to exercise, Toberoff reasoned, because Shuster's rights in Superman "had long been assigned in 1938," and DC still owned the copyright when Jean inked the deal.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Before the Copyright Extension Act, termination rights were granted only to an author's spouse, children, or grandchildren, the attorney said.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"Joe Shuster was never married and had no children, so no one held the termination right in 1992," Toberoff said.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Language in the agreement did not revoke Shuster's previous grants of copyright to DC, the attorney added.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"It contains no language of rescission, revocation, cancellation, replacement, or any of its synonyms," Toberoff said. "And given the tremendous value of the Superman franchise, if that was the intent of DC's lawyers who drafted this simple 1992 pension agreement they would have said so in plain English."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Judge Stephen Reinhardt zeroed in on the termination notice Toberoff filed on Mark Peavy's behalf - a question Wright did not reach. The judge asked the attorney why he failed to disclose the joint venture between Toberoff's Pacific Pictures and the Shusters.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"That wasn't an accurate statement of the ownership of the estate's rights was it?" Reinhardt said.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Toberoff countered that the termination notice asked for "very little information," and did not require "disclosure of any collateral agreements."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;But DC Comics' Daniel Petrocelli with Los Angeles firm O'Melveny &amp; Myers called Toberoff's failure to disclose the joint venture a "deception" on the copyright office.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Asking the court to affirm, Petrocelli said Mark Peavy's 2003 termination notice was invalid because the Copyright Extension Act only allows heirs to end grants of copyright made before 1978.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Since Jean put pen to paper in 1992, there was no right for Mark to terminate, Petrocelli said.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"Whether or not you have a termination right doesn't depend on anybody's intention - whether you're intending to preserve something, or intending to extinguish something," Petrocelli said. "It depends on the date of the grant, and the legal relationship between the people who are doing this."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;But during his reserve time, Toberoff said there was no evidence that DC intended to revoke previous grants of copyright.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"It's counter-intuitive that DC would suddenly want to revoke Joe Shuster's grants which were upheld in two court judgments to give it all rights to Superman, and replace it for some release language from a non-author," the attorney said.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Toberoff said that Peavy did not significantly leverage the Shuster family's termination rights to a "multibillion industry," adding that DC knew it was under no legal obligation to pay her.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"Hence they had no leverage, they had no termination rights; DC knew so," Toberoff said.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;But Petrocelli said Peavy was Joe Shuster's sole beneficiary, and "stood in his shoes." As Shuster's legal successor she was permitted to make a new grant of copyright, regardless of whether or not she used a termination right as leverage, the attorney said.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Judge Reinhardt was joined by Judge Sidney Runyan Thomas, and U.S. District Judge John Sedwick, who appeared via a video link-up from Alaska.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Earlier this year, the 9th Circuit ruled that the Siegel family is bound to a 2001 contract granting the copyright of Superman to Warner Bros. and DC Comics. Petrocelli successfully argued that case. ]]></description>
<pubDate>Thu, 23 May 2013 17:28:00 -0700</pubDate>
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<title><![CDATA[Texas Judge Indicted on Misuse of Powers Charges]]></title>
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<description><![CDATA[&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;GALVESTON (CN) - A Texas judge has been indicted on criminal charges that he repeatedly misused his official powers to retaliate against attorneys appearing before him and other officials.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Galveston County Court at Law Judge Christopher Dupuy was charged Wednesday with two felony counts of obstruction or retaliation, two misdemeanor counts of official oppression and four misdemeanor counts of abuse of official capacity, the Houston Chronicle reported .&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;If Dupuy is convicted on any of the criminal counts, he will be removed from the bench. He was arrested at 3 p.m. and posted $19,000 in bail hours later, according to Galveston County sheriff's spokesman Ray Tuttoilmondo.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Hours earlier, attorney Greg Hughes filed civil suit against Dupuy, asking for his removal from office and accusing him of incompetence and oppression. Dupuy failed to obey an order from a state court of appeals, threatened the district clerk while attempting to interfere in his divorce case and retaliated against attorneys by abusing his power, the complaint states.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"He has ruined dozens of lives over the last two years with ridicules, horrible rulings he has made," Hughes told the Chronicle.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Also on Wednesday, Dupuy's ex-wife, Adrienne Viterna, filed for an emergency protective order in the wake of an affidavit taken Monday from Dupuy's former fiance. Tara Compton stated the judge intended to kill Viterna and flee with their two children to New Zealand, the Chronicle reported. Compton is scheduled to testify Friday in a hearing on the protective order.In one case, Dupuy is accused of official oppression against attorney Lori Laird, who represents his ex-wife in a custody dispute over their children. Laird said he retaliated against her trying to record his testimony during a deposition by driving to the courthouse, drawing up a contempt order against her and giving her 120 days in jail. Laird then appealed and the contempt order was tossed.]]></description>
<pubDate>Thu, 23 May 2013 12:10:00 -0700</pubDate>
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<title><![CDATA[Doc Claims Pharmacies' Blacklists Err]]></title>
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<description><![CDATA[&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;LOS ANGELES (CN) - CVS Caremark and Target pharmacies blacklisted a doctor, won't fill his patients' prescriptions and falsely told them he is on a federal "watch list," the doctor claims in a class action.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Dr. Roy H. Simon sued CVS Caremark, CVS Pharmacy, Target, and Rite Aid, in Superior Court. He claims there are hundreds of doctors in the class.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Simon describes himself in the complaint as a "pain management physician." The California Medical Board placed his medical license on probation on April 12, 2011, but the Sacramento Superior Court overturned the suspension on Sept. 4, 2012, Simon says in the complaint.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;He claims he "never lost his license to practice medicine in the State of California and has not otherwise met any criteria for inclusion on the Medi-Cal Ineligible and Suspended Providers List."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Simon claims he was blacklisted due to claims-processing software pharmacies use that have access to the Medi-Cal Ineligible and Suspended Providers List.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;He claims: "The defendant pharmacies use the Medi-Cal Suspended and Ineligible Provider List to bar hundreds of listed doctors' patients from legally obtaining prescription medication, despite the fact that those patients are not Medi-Cal beneficiaries."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;He claims the defendant pharmacies can correct errors by "cross-checking" the Medi-Cal list with other medical databases, but they choose not to.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"To make matters worse, the defendant pharmacies are providing false and misleading information to patients about the reasons their prescriptions cannot be filled, including claims that the patients' physicians are on state and federal 'watch lists,' have been sanctioned by the Medical Board, are under investigation, and that they have been convicted of a felony, or are not licensed to practice medicine in California," Simon says in the complaint.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Simon claims he does not treat Medi-Cal patients and did not know about the list until pharmacies started denying his patients' prescription requests in late 2012.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;In November 2012, Simon claims, a CVS pharmacist in Gardena told one of his patients "that he could not fill a prescription for a controlled substance because Roy Simon is a felon without a license in California to practice medicine."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Six other pharmacists refused to fill patients' prescription and told them that Simon was "not licensed to practice medicine," or "sanctioned by the state" or was a felon, he says in the complaint.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;He says the pharmacies' false claims that he lost his medical license hurt his professional reputation and cost him business.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;He seeks restitution and compensatory and punitive damages for slander and unfair competition. He also wants the pharmacies restrained from "making any statements of any kind whatsoever concerning any physician's listing on the Medi-Cal Suspended and Ineligible Provider List".&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;He is represented by Matthew Rifat of San Diego. ]]></description>
<pubDate>Fri, 24 May 2013 04:24:00 -0700</pubDate>
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<title><![CDATA[5th Circuit Upholds Age Restrictions on Guns]]></title>
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<description><![CDATA[&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;(CN) - Texas does not infringe on the constitutional rights of 18-20-year-olds by barring them from carrying handguns in public, the 5th Circuit ruled.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Rebekah Jennings, Brennan Harmon and Andrew Payne joined the National Rifle Association in challenging the constitutionality of the state's general criminal provision prohibiting individuals from carrying handguns in public.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The group also took aim at the requirement that Texans must be at least 21 to obtain a concealed handgun license. The state makes an exception for younger applicants with military training.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The plaintiffs filed a federal lawsuit in Dallas alleging that the state's combination of gun restrictions specifically violates the rights of 18-20-year-olds under the Second Amendment and the Equal Protection Clause.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The District Court found the plaintiffs lacked standing to challenge the general criminal provision, and it upheld the state's concealed handgun licensing law, prompting the NRA and its fellow plaintiffs to appeal.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;A three-judge panel from the 5th Circuit Court of Appeals ruled in favor of the state on Monday.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The panel agreed with Texas that the claims made by Jennings and Harmon, who have both turned 21, should be dismissed as moot.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The Circuit Court reversed the finding that the NRA and Payne lacked standing to challenge the general criminal provision. Nevertheless, the panel determined that neither the provision nor the licensing law violates the Second Amendment or the Equal Protection Clause.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"Texas determined that a particular group was generally immature and that allowing immature persons to carry handguns in public leads to gun violence," Judge Edith Brown Clement wrote on behalf of the panel. "Therefore, it restricted the ability of this particular group to carry handguns outside their vehicles in public. This means is substantially related to Texas's stated goal of maintaining public safety, and it still allows 18-20-year-olds to have handguns in their cars and homes and to apply for concealed handgun licenses as soon as they turn 21."]]></description>
<pubDate>Thu, 23 May 2013 10:37:00 -0700</pubDate>
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<title><![CDATA[Shareholder Services Settles for $300,000]]></title>
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<description><![CDATA[    WASHINGTON (CN) - Institutional Shareholder Services will pay $300,000 to settle an SEC complaint about an employee who took bribes to tell a proxy solicitor how institutional clients were voting their proxy ballots, the SEC said.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The SEC said in its cease and desist order: "From approximately 2007 through early 2012, an ISS employee ('the ISS Employee') provided information to a proxy solicitor concerning how more than 100 of ISS' institutional shareholder advisory clients (i.e., institutional investment managers) were voting their proxy ballots. In exchange for vote information, the proxy solicitor gave the ISS Employee meals, expensive tickets to concerts and sporting events, and an airline ticket. The ISS Employee, who had access to all of ISS' clients' proxy voting information, gathered the information by logging into ISS' voting website from home or work and used his personal email account to communicate voting information to the proxy solicitor.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"The ISS Employee's breach was made possible in part by ISS' failure to establish or enforce written policies and procedures reasonably designed, taking into consideration the nature of ISS' business, to prevent the misuse of material, non-public information by ISS and its associated persons."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The employee no longer works at ISS, the SEC said.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;ISS must hire an "independent compliance consultant" and promise not to do it again but as is customary with SEC orders, need not admit it did anything wrong in the first place.]]></description>
<pubDate>Fri, 24 May 2013 04:24:00 -0700</pubDate>
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<title><![CDATA[Facebook Friendship Not Proof of Judicial Bias ]]></title>
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<description><![CDATA[&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;DALLAS (CN) - A judge's social media relationship with the father of an assault victim did not affect his impartiality or neutrality regarding the assailant's conviction, a Texas appellate court ruled.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;A three-judge panel with the Dallas-based 5th District Court of Appeals affirmed the conviction of William Scott Youkers on May 15.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Youkers appealed his eight-year prison sentence and revocation of community supervision for assaulting his pregnant girlfriend. He was on parole at the time for a previous felony conviction of tampering with evidence and pleaded guilty to the assault charges.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;He later appealed, arguing the trial judge abused his discretion in denying a motion for new trial.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Youkers asked for a new trial by challenging the judge's neutrality, describing his Facebook friendship with his girlfriend's father - which continued through the pendency of Youkers revocation hearing -- and email messages the judge received from the plaintiff's community supervision officer.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The judge had testified at the hearing on Youker's motion for new trial that he knew the victim's father because both ran for office during the same election cycle. He also testified that other than private messages on Facebook, they had no other contacts on the social media site.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"The Facebook communications began with a message from the father to the judge seeking leniency for Youkers," stated Justice Mary Murphy, writing for the panel. "That message was posted just prior to Youkers's original plea. The judge responded online formally advising the father the communication was in violation of rules precluding ex parte communications, stating the judge ceased reading the message once he realized the message was improper, and cautioning that any further communications from the father about the case or any other pending legal matter would result in the father being removed as one of the judge's Facebook friends."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Murphy continued, " ...The judge's online response also advised that the judge was placing a copy of the communications in the court's file, disclosing the incident to the lawyers, and contacting the judicial conduct commission to determine if further steps were required. The father replied with a message apologizing for breaking any 'rules or laws' and promising not to ask questions or make comments 'relating to criminal cases' in the future.'"&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Indeed, Murphy concluded, a Facebook friendship alone provides no insight into the nature or depth of a relationship.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"Merely designating someone as a 'friend' on Facebook "'does not show the degree or intensity of a judge's relationship with a person," she wrote. "One cannot say, based on this designation alone, whether the judge and the 'friend' have met; are acquaintances that have met only once; are former business acquaintances; or have some deeper, more meaningful relationship ... Further context is required."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Murphy noted the evidence of the judge and father running for office at the same time and the father's communication about the trial provide no insight into a relationship that would lead to bias or partiality by the judge.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"The judge also acted in full compliance with the Texas Committee on Judicial Ethics' recommended procedure for treatment of ex parte communications," she wrote. "A reasonable person in possession of all of the facts in this case likely would conclude the contact between the judge and the father did not cause the judge to abandon his judicial role of impartiality; besides the evidence that the judge and the father's acquaintance was limited, any appearance of bias created by the Facebook communications was dismissed quickly by the judge's handling of the situation."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Murphy wrote that even if the father made improper statements to Youker's mother about influencing the judge, the evidence contains does not show the judge was aware of such a statement.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The panel also disagreed with Youker's complaint of bias being created by the community supervision officer's ex parte email messages to the judge. The officer informed the judge of his "poor character" before the probation hearing, among other things.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"The judge added the statement (about which Youkers complains) that he believed he was 'making a mistake and it should be a bigger number"; he was giving Youkers two years less than the maximum sentence 'in the hopes that [Youkers] use [his] intelligence to realize that [he's] got to fix these things and not keep trying to fix them to the minimum to where people stop watching [him]. Because the moment [he is] unwatched, [he] is untrustworthy," Murphy wrote.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"The evidence supports the judge's comments, which do not reflect bias, partiality, or the judge's failure to consider the full range of punishment." The panel also rejected Youker's claims of ineffective assistance of counsel, concluding he did not miss the opportunity to accept a plea offer because he chose not to accept it, not because he was unaware of it.]]></description>
<pubDate>Thu, 23 May 2013 12:42:00 -0700</pubDate>
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<title><![CDATA[Creepy Car Salesman]]></title>
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<description><![CDATA[    RIVERSIDE, Calif. - Corona Nissan car salesman Kevin Cardiel sexually harassed and assaulted a customer as she bought a car, then used information he got from the purchase to show up uninvited at her workplace and sexually harass her again, she claims in Superior Court. ]]></description>
<pubDate>Fri, 24 May 2013 04:33:00 -0700</pubDate>
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<title><![CDATA[Court Erred In Tossing Exotic Animal Case]]></title>
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<description><![CDATA[&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;(CN) - A circuit court erred when it dismissed the conviction of a Columbia, Missouri man for keeping a pair of alligators, a state appeals court ruled.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Kenneth Henderson was charged with two counts of violating the city of Columbia's exotic animals ordinance for keeping two alligators, which he named Babe and Snuggles.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Henderson asked the court to dismiss the charges, arguing the ordinance was unconstitutionally vague. The court declined his motion, and Henderson had to pay a fine.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;He appealed, seeking a trial de nono, arguing that he kept the alligators for educational purposes. The court ruled in his favor and dismissed the case, stating that alligators did not fall under the ordinance's definition of "exotic animals."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The city appealed, and the Missouri Court of Appeals overturned the decision, ruling that Henderson was not allowed to keep Babe and Snuggles in the city of Columbia.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;In his opinion, Judge Thomas Newton noted that alligators did not fall under the city's definition of exotic animals, which included nonhuman primates, poisonous reptiles, endangered species, predatory birds and mammals that do not normally live near humans.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;However, he agreed with the city's argument that elsewhere in that section of the law is a prohibition against "any deadly dangerous or venomous reptile."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"Consequently, the trial court erred in finding as a matter of law that section 5-29 did not apply to alligators and granting Mr. Henderson's motion to dismiss. While alligators did not fall under section 5-1's definition of exotic animal, section 5-29 also barred the keeping of 'any deadly dangerous or venomous reptile,' Newton wrote."At trial, the city should be given the opportunity to prove as a factual matter whether alligators are a 'deadly dangerous or venomous reptile,'" he added.]]></description>
<pubDate>Thu, 23 May 2013 11:37:00 -0700</pubDate>
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<title><![CDATA['Saving Levi']]></title>
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<description><![CDATA[&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;LOS ANGELES - Lisa Misraje Bentley claims these defendants violated copyright on her book, "Saving Levi," by making a movie of it: James Randall Argue, David Bradshaw, Ralph Linhardt, Michael H. Ramsey, Jack Ong, and John David Ware, in Federal Court.]]></description>
<pubDate>Fri, 24 May 2013 04:33:00 -0700</pubDate>
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<title><![CDATA[Judge Forbids LesbianFrom Living with Partner]]></title>
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<description><![CDATA[&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;DALLAS (CN) - A Texas judge has ordered a lesbian couple to stop living together due a morality clause in one of the women's divorce papers.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Judge John Roach of the 296th District Court in Collin County enforced the clause from Carolyn Compton's 2011 divorce decree on May 7, the Dallas Voice reported .&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Compton has lived for three years with Page Price, who was ordered by Roach to move out within 30 days because Compton's children live with the couple. The clause states that a person who has a "dating or intimate relationship" or is not related "by blood or marriage" must leave after 9 p.m. when the children are present.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Shortly after the ruling, Price posted on her Facebook profile that Roach was a "bigot hiding behind a robe."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"By his enforcement, being that we cannot marry in this state, I have been ordered to move out of my home," Price said. "Said judge offered further information to our attorneys that if he could throw her in jail for being gay he would. The only reason he didn't incarcerate her was because of a technicality our attorneys found in the original wording."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Price accused Compton's ex-husband of hiring a private investigator to bring the matter before the court.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"This is the same man who lives just a few miles away yet has taken his children a total of 12 times in three years and not attended ONE school or athletic event," Price said in another Facebook posting. "This request for enforcement was filed 'in the interest and welfare of the children.' If he is so worried about their welfare where is he every 1st, 3rd and 5th weekend?"&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Price said children that live with the couple are "happy and well adjusted."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"We didn't want to be the face for this movement, but it looks like God has bigger plans for us," she added. "We will stand up and fight this for our family and hope that it helps pave the way for marriage equality in Texas."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Texas voters approved a constitutional amendment banning same-sex marriage in 2005.]]></description>
<pubDate>Thu, 23 May 2013 12:21:00 -0700</pubDate>
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<title><![CDATA[Court Tosses Suit Over Disputed Concession Sale]]></title>
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<description><![CDATA[&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;HOUSTON (CN) - Haste and a failure to insist on precise contract language doomed a rock exporter's suit against a Texan accused of selling it a mineral concession he did not own, a federal judge ruled.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Genesis Agregados Honduras, a Honduran company with offices in Louisiana, sued Tom Cross, of La Porte, Texas in January 2012.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Genesis mines and imports volcanic rock from Honduras to the Gulf Coast of the United States for levee-building and other projects by the United States Army Corps of Engineers, according to its original complaint.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Genesis says Cross claimed he owned an antimony concession in Santa Rita de Santa Barbara, Honduras and offered to lease it to the company with an option to purchase.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Antimony is a shiny silver metalloid used in microelectronics, cosmetics, as alloy material for lead and tin and as an additive to fire retardants.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Genesis says after it hired a geologist and mining engineer who determined the site had sufficient antimony to be profitable it paid the Honduras government $26,000 for back taxes on the concession, and $24,000 to Cross, through his attorney.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The company wasted no time hiring geologists, engineers and labor to mine the concession at a cost of $500,000, it says.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Genesis says it also negotiated a tentative joint venture with Mina Emusa, a Bolivian mining consort where Mina Emusa would provide the equipment and manpower to mine the concession and take it to port for 50 percent of the profits, which would have netted Genesis a minimum of $5 million a year.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The company says Cross signed a lease in November 2011, granting it an option to purchase the concession.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;But in preparing to sign the lease Genesis contacted the office of the Minister of Mines in Honduras and found out Cross was not the registered owner of the concession, and "incapable of transferring the same," Genesis says in its original complaint.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Genesis sued Cross for $10 million in punitive damages, $551,000 in compensatory damages and an injunction to stop him from marketing the concession on the Internet.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;U.S. District Judge Melinda Harmon granted Cross' initial motion to dismiss the lawsuit, but granted Genesis leave to file an amended complaint to fix deficiencies in the first.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Genesis filed an amended complaint that reasserted all allegations in the original but added an affidavit from Julio Zavala, Genesis' alleged CEO and president.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Included with Zavala's affidavit was a "Lease with Option to Buy Contract" between Cross and Zavala that names Zavala as "lessee" with no indication that Zavala is acting for Genesis, in fact it does not mention Genesis at all.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Zavala claims he pointed out to Cross that the lease incorrectly named him as the lessee/purchaser before the agreement was executed.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Cross said it would be fixed, but Zavala signed the agreement anyway "due to urgency," according to Zavala's affidavit.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Based on Zavala's assertions Genesis brought a new claim for reformation of contract in its amended complaint.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Cross moved to dismiss arguing that Genesis had failed to plead a breach of contract claim or shown that it was ever a signatory party to any contract for the concession.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Harmon agreed with Cross and tossed the case.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"Genesis has failed to identify and support with facts what law applies here; has failed to allege facts establishing that Genesis has standing to bring these vague allegations; has failed to plead fraud with the required particularity... has failed to state a claim for breach of contract or reformation of the lease/purchase agreement; and has failed to state facts supporting claims for negligent misrepresentation or unjust enrichment," Harmon wrote.]]></description>
<pubDate>Thu, 23 May 2013 11:03:00 -0700</pubDate>
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<title><![CDATA[Officials Must Explain 'Terrorism' Visa Denial]]></title>
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<description><![CDATA[&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;(CN) - The government cannot deny a visa on "terrorism grounds" without further explanation, the 9th Circuit ruled Thursday, reinstating the claims of an Afghan man's wife.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;In a split ruling, the federal appeals court in San Francisco said the government lacked "a facially legitimate reason" for denying a visa to Afghan citizen Kanishka Berashk.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The decision overturns a federal judge's dismissal of the case, brought by Berashk's wife, U.S. citizen Fauzia Din.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The couple married in September 2006, and a month later Din filed a petition for a visa on her husband's behalf. Government officials told her the petition was approved and arranged to interview Berashk at the embassy in Islamabad, Pakistan.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Berashk answered the questions truthfully, according to the ruling, including inquiries about his work as a payroll clerk for the Afghan Ministry of Social Welfare during the Taliban regime.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Berashk was told to expect his visa in two to six weeks, but Din said they had to call the embassy several times before learning, almost nine months later, that the visa had been turned down.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The government cited only a broad provision of the Immigration and Nationality Act that excludes applicants for a variety of terrorism-related reasons. The denial letter stated that there was "no possibility of a waiver of this ineligibility," according to the ruling.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;When Berashk emailed the embassy for clarification, he was told that "[i]t is not possible to provide a detailed explanation of the reasons for the denial."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Din and her pro bono attorney nevertheless tried to find out why the visa had been denied, but embassy officials declined to elaborate.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Din then sued, seeking an order that would force the government to process her husband's visa application in a legal manner. She claimed it was unconstitutional for the government to deny the visa without explaining what her husband allegedly did to be deemed inadmissible on terrorism grounds.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;A federal judge granted the government motion to dismiss, and the 9th Circuit reversed.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"The first problem is that the government has offered no reason at all for denying Berashk's visa; it simply points to a statute," Judge Mary Murguia wrote.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;She said the problem "is compounded by the sweeping nature of the cited section of the INA" - a section that exceeds 1,000 words and contains 10 different categories of those deemed inadmissible for terrorism reasons.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"The government's citation here is so broad that we are unable to determine whether the consular officer 'properly construed' the statute," Murguia wrote.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The panel acknowledged that the government is not required to prove that Berashk did something to render him inadmissible.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"We seek only to verify that the facts asserted by the government, however bare, constitute a ground for exclusion under the statute," Murguia wrote.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;But dissenting Judge Richard Clifton said the government "was not required to provide more specific information" about why it denied Berashk's visa.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"The factual basis of the consular's decision is not within our highly limited review," Clifton wrote.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"[I]t is simply not enough to allege that the consular official's decision was wrong. That is not for us to decide.]]></description>
<pubDate>Thu, 23 May 2013 11:34:00 -0700</pubDate>
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<title><![CDATA[Sports Agents]]></title>
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<description><![CDATA[&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;MIAMI - Sugartime Sports Agency claims its former manager Ronnie Chalmers, father of nonparty NBA guard Mario Chalmers, swiped proprietary information to compete against it, in Miami-Dade County Court.]]></description>
<pubDate>Fri, 24 May 2013 04:53:00 -0700</pubDate>
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<title><![CDATA[Insurance Underwriter Loses Bid for Indemnity]]></title>
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<description><![CDATA[&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;(CN) - The Farm Bureau Life Insurance Company cannot hold its insurance broker responsible for claims arising from its failure to inform a couple of their HIV-positive status, the Iowa Supreme Court ruled.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The decision by Justice Daryl Hecht affirmed an earlier ruling by Polk County, Iowa District Court Judge Arthur Gamble.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The events giving rise to the case commenced in October 1999, when a couple indentified as John and Mary Smith to protect their identities, applied for life insurance through Farm Bureau.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The insurer denied their application after a blood screen revealed they were both infected with the Human Immunodeficiency Virus; however, it never informed the couple they were both HIV-positive, something they wouldn't discover for themselves for another three years.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;In 2002, they sued Farm Bureau for negligence and personal injury in the federal court in Wyoming, which concluded the insurance underwriter had no obligation to inform them of their HIV-status.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The 10th Circuit reversed the ruling, holding Farm Bureau should have at least provided the Smith with enough information about their blood screen to inspire them to make further inquiries about their health.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The Smiths filed an amended damages complaint in Wyoming, which Farm Bureau settled in June 2006.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Farm Bureau then filed Iowa state court claims against its insurer, Federal Insurance Company, for indemnity, and its insurance broker, Holmes, Murphy &amp; Associates Inc., for failing to provide timely notice of the claims to its insurers.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Judge Gamble awarded summary judgment in favor of the insurers, finding that Farm Bureau failed to give them timely notice of the claims.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Gamble also granted the broker's motion for summary judgment, concluding that even if the insurers had been given timely notice of the claims, coverage would have been denied based on two exclusions in the policies. Farm Bureau appealed.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Upon review, Justice Hecht affirmed the district court's ruling, holding it correctly concluded the underwriting exclusion in the Insurance Company Professional Liability (ICPL) policy issued to Farm Bureau by Federal Insurance would have precluded coverage for the Smiths' claims even if it had been timely notified under the policy's notice requirement. ]]></description>
<pubDate>Thu, 23 May 2013 07:35:00 -0700</pubDate>
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<title><![CDATA[Film Editing]]></title>
<link><![CDATA[http://www.courthousenews.com/2013/05/24/57935.htm]]></link>
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<description><![CDATA[&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;MANHATTAN - Shugah Works claims Arts and Exhibitions International, and Firethorn Productions owe it $40,000 for editing the documentary film, "Gallery 9," in New York County Supreme Court.]]></description>
<pubDate>Fri, 24 May 2013 04:33:00 -0700</pubDate>
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<title><![CDATA[Kentucky Plant May be Listed, With Habitat]]></title>
<link><![CDATA[http://www.courthousenews.com/2013/05/24/57955.htm]]></link>
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<description><![CDATA[&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;WASHINGTON (CN) - The U.S. Fish and Wildlife Service has proposed to list the Kentucky glade cress as threatened throughout its range under the Endangered Species Act, and plans to designate 2,053 acres of critical habitat for it in two Kentucky counties, according to two proposed rules.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"The Kentucky glade cress is one of Kentucky's rarest plants, and it exists on the outskirts of the rapidly growing metro Louisville area," Lee Andrews, supervisor of the USFWS' Kentucky Field Office said in a press release. "We hope that landowners and local governments will help us conserve this plant and its habitat through improved management and land protection efforts."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The listing proposal is the result of a 2011 settlement agreement between the USFWS and the Center for Biological Diversity (CBD) and other environmental groups to speed listing protections for 757 animal and plant species across the country, according to the CBD's press release.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;"Protection for this little Kentucky wildflower was sure a long time coming - 38 years, to be exact," Tierra Curry, conservation biologist at the CBD, noted in the group's statement.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The glade cress is a small annual plant in the mustard family with white to lavender flowers that grows on thin soil in full sun. It is found in only two counties in Kentucky, in the extreme southeastern part of Jefferson County and the northeastern portion of Bullitt County. Its habitat has declined due to rapid residential and commercial development and the activities that go with that, such as grading, paving, mowing, grazing, spraying and recreational uses, the agency said.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The agency is proposing the plant for threatened status rather than endangered status due to the "relatively high current number of extant populations," according to the action. However, the agency also noted that of the current 61 populations, approximately half are "poor-quality occurrences," on residential lawns, which are not thought to be sustainable.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Critical habitat designation means that a listed species is protected if it is on federal land or if there is a federal action on private land that may affect the species. "Most use of critical habitat by the public will not be affected by the critical habitat designation. Private land uses, such as landscaping, farming and silviculture, also will be unaffected. When a species is listed or critical habitat is designated, federal agencies are required to ensure that their activities will not jeopardize the continued existence of the species or destroy or modify critical habitat. Federal activities, or actions permitted, licensed, or funded by federal agencies, will require consultation with the Service if they are likely to adversely affect the species or modify critical habitat," the agency noted in their fact sheet.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Comments on both proposed rules are due by July 23, and requests for public hearings must be received by July 8.]]></description>
<pubDate>Fri, 24 May 2013 19:48:00 -0700</pubDate>
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<title><![CDATA[Tech Patent]]></title>
<link><![CDATA[http://www.courthousenews.com/2013/05/24/57931.htm]]></link>
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<description><![CDATA[&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;WILMINGTON, Del. - Cisco Systems et al. violate a patent on Redundant Array of Inexpensive Disks, or RAID storage systems, Promise Technology claims in three federal complaints.]]></description>
<pubDate>Fri, 24 May 2013 04:33:00 -0700</pubDate>
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