• CONSTITUTIONAL LAWS

United States Court of Appeals for the Ninth Circuit

National Aeronautics And Space Administration et al. Vs. Nelson et al. No. 09-530 (Decided on 19.01.2011)

Violation of Constitutional right to informational privacy- Uniform identification standards for Federal employees- Deadline was set for completion of these investigations- Before completion of checks Respondents brought this suit, claiming that the background-check process violates a constitutional right-District Court declined to issue a preliminary injunction, but the Ninth Circuit reversed.

Held, that the challenged portions of the Government's background check do not violate this right in the present case. The Government's interests as employer and proprietor in managing its internal operations, combined with the protections against public dissemination provided by the Privacy Act of 1974, 5 U.S.C. Section 552 satisfy any "interest in avoiding disclosure" that may "arguably have its roots in the Constitution. There is no constitutional right to "informational privacy." Respondents challenge the Government's collection of their private information. But the Government's collection of private information is regulated by the Fourth Amendment, and "where a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims. This case is easily resolved on the simple ground that the Due Process Clause does not 'guarantee certain liberties'; rather, it merely guarantees certain procedures as a prerequisite to deprivation of liberty".

• INSURANCE LAWS

United States Court of Appeals For the First Circuit

Farmers Insurance Exchange Vs. RNK, INC. D/B/A RNK Telecom and Ripple Communications, Inc. (Decided on 21.01. 2011)

Declaratory action-District Court's decision to grant summary challenged-Defendants a Massachusetts corporation, is a telephone company that provides services to the public as a Competitive Local Exchange Carrier ("CLEC") entered into a written agreement with Ripple that provides conferencing services who was to locate and install certain electronic equipment - The New York Public Service Commission which regulates CLECs issued an order - Chat lines on the networks to designate as blockable- Violation of the Regulatory Order resulted in suit by injured -Defendant's Insurer settled the lawsuit- Indemnification claimed underlying the suit-Appellant's (insurer of Ripple) defends against the Defendants' claims-District Court Judgment affirmed.

Held, In light of the above, it is found that the conversations carried out by Doe and her assailants through Appellant's network and Ripple's chat lines are not considered Defendant's "content" within the meaning of the Agreement. Accordingly, we find that Doe's claims fall outside the scope of the indemnification obligation set forth and even if it is assumed that such claims arose from conversations she carried out through Ripple's chat lines. In sum, the District Court correctly found that Ripple is not obligated under paragraph ten of the Agreement to indemnify RNK against Doe's claims. Accordingly, we affirm the District Court's order on this issue.

• INTELLECTUAL PROPERTY LAWS

United States Court of Appeals for the Federal Circuit

Centillion Data Systems, LLC, Vs. Qwest Communications International, Inc., Qwest Corporation and Qwest Communications Corporation (Decided on 20.01.2011)

Infringement of 270 patent-Grant of summary judgment- Defendants cross-appeals -District court erred in granting summary judgment of non infringement- vacated and remanded.

District Court only considered infringement by "use" under 35 U.S.C. Section 271(a) and held that it means "putting the system into service, i.e., . . . exercising control over, and benefiting from, the system's application." It held that an accused infringer must either practice every element or control or direct the actions of another that practices the element in question. Centillion argues that the district court adopted an overly narrow interpretation and that "use" simply means "the right to put into service any given invention." It argues that use does not require that a party "practice" every element, only that it use the system as a collective. Held,that to "use" a system for purposes of infringement, a party must put the invention into service. The district court erred, however by holding that in order to "use" a system under § 271(a), a party must exercise physical or direct control over each individual element of the system. Because genuine issues of material fact remain, the district court's grant of summary judgment of no anticipation is reversed . Therefore remanding the case for further proceedings.

• EMPLOYMENT LAW

Supreme Court of The United States

Thompson Vs. North American Stainless, LP (Decided on 24.01.2011)

Sex discrimination charge-Equal Employment Opportunity Commission (EEOC)-Respondent North American Stainless (NAS) fired Thompson- Suit under Title VII of the Civil Rights Act, claiming that NAS fired him to retaliate-District Court granted NAS summary judgment - Title VII "does not permit third party retaliation claims".

Held,firing by NAS constituted unlawful retaliation. Title VII's anti retaliation provision must be construed to cover a broad range of employer conduct. It prohibits any employer action that " 'well might have "dissuaded a reasonable worker from making or supporting a discrimination charge" . That test must be applied in an objective fashion, to "avoid the uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff's unusual subjective feelings." Moreover a reasonable worker obviously might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired. Title VII grants Petitioner a cause of action as on considering the term "person aggrieved"under the Title Petitioner falls within the zone of interests protected by Title VII. He was an employee of NAS, and Title VII's purpose is to protect employees from their employers' unlawful actions. Moreover, accepting the facts as alleged, Petitioner is not an accidental victim of the retaliation. Thus, Thompson is a person aggrieved with standing to sue under Title VII.

• BANKRUPTCY LAW

IN RE: Jay BERMAN ,Follett Higher Education Group, Inc., Vs. Jay Berman. No. 10-1882. (Decided on 21.01.2011)

Discharge of debt- Creditor failed to prove that a debt is owed -Under 11 U.S.C. Section 523(a)(4)-Creditor hired Berman & Associates Inc.,to place advertisements -Berman & Associates had not paid several outstanding advertising bills- Defendant petitioned for Chapter 7 bankruptcy- Appellant then filed an adversary action in bankruptcy proceedings claiming that Defendant had breached a fiduciary duty- Berman moved for judgment on partial findings under Federal Rule of Bankruptcy Procedure 7052- Bankruptcy judge granted Berman's motion- Hence the appeal-Debtor has no fiduciary duty- Pervious judgment affirmed.

Held, nothing in the substance of the relationship between Follett and Berman & Associates qualified it as a fiduciary relationship within the meaning of section 523(a)(4). Their creditor-debtor relation did not involve any special confidences. An ordinary principal-agent or buyer-seller relationship, without more, is not a fiduciary relationship under section 523(a)(4). Bankruptcy Court held that a creditor failed to prove that a debt owed to it was non-dischargeable under 11 U.S.C. § 523(a)(4), which provides that a debt will not be discharged in bankruptcy where that debtor has committed "fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny." Concluding that the creditor had not established that the debtor acted in any fiduciary capacity toward the creditor, the court entered judgment for the debtor. The District Court affirmed the finding and on appeal the respected court agreed with the decision of the District Court.

• TAX LAWS

United States Court of Appeals for the Eighth Circuit

Mayo Foundation For Medical Education and Research et al. Vs. United States (Decided on 11.012011)

Exempt from taxation- Suit asserting that Treasury Department's full-time employee rule was invalid- Section 3121(b)(10) of Federal Insurance Contributions Act (FICA)-District Court agreed- Petitioner offered residency programs to doctors who have graduated from medical school to give them a hands-on experience- Although residents are required to take part in formal educational activities, these doctors generally spend 50 to 80 hours a week caring for patients - Stipends of over $40,000 paid- Student exception only when it is incidental to and for the purpose of pursuing a course of study- Petitioner asserted that its residents were exempted-Department issued regulations that employees working 40 hours or more are not covered therein-Rule reasonable-Eighth Circuit reversed

Held,the Treasury Department's full-time employee rule is a reasonable construction of §3121(b)(10). Petitioner does not dispute that the Treasury Department reasonably sought a way to distinguish between workers who study and students who work. The Department explained that an individual's service and his "course of study are separate and distinct activities and reasoned "employees who are working enough hours to be considered full-time employees. The Department reasonably determined that taxing residents under FICA would further the purpose of the Social Security Act. Although Petitioner contends that medical residents have not yet begun their "working lives" because they are not "fully trained, the Department certainly did not act irrationally in concluding that these doctors--"who work long hours, serve as highly skilled professionals, and typically share some or all of the terms of employment of career employees"--are the kind of workers that Congress intended to both contribute to and benefit from the Social Security. Thus, the judgment of the Court of Appeals is affirmed.

Commissioner of Internal Revenue Vs. JT USA, LP, JTR-LLC (Decided on 14.01.2011)

Assessing tax deficiency- Error in issuing final partnership administrative adjustment-Appellee's formed a limited partnership- Appellant alleged Appellee transferred ownership of JT USA to two different entities both of which they controlled- Engaged in a series of transactions-Non-payment of capital gains taxes- Due to error by IRS Appellee had option for election-Whether election valid-Tax court upheld the same- On appeal the question is whether Jurisdiction to hear the IRS's appeal of the Tax Court's interlocutory ruling-Lack of jurisdiction

Held, the Tax Court's decision on this issue is not effectively unreviewable on appeal from a final judgment. If the Tax Court ultimately determines that the Appellee's did not retain a direct interest in JT USA at the relevant time, and therefore do not have tax liability, the IRS will be able to appeal that ruling along with the Tax Court's prior interlocutory order that the Appellee's had authority to bifurcate their election in the TEFRA proceeding. "An appeal from the final judgment draws in question all earlier non-final orders and all rulings which produced the judgment." Because the Tax Court order qualifies under neither the practical finality doctrine nor the collateral order doctrine, accordingly the Court lack jurisdiction over this appeal. Hence dismissed.

• CIVIL LAWS

Supreme Court of the United Kingdom

R Vs. Institute of Chartered Accountants in England and Wales [2011] UKSC 1 (Decided on 19.01.2011)

Relevance and application of the principles of autrefois acquit, res judicata and abuse of process in the context of successive proceedings before a regulatory or disciplinary Tribunal- Concerns the application of the general principle that "nemo debet bis vexari pro una et eadem causa"- Appellant, is a Chartered Accountant and a member of the Respondent Institute of Chartered Accountants in England and Wales-Formerly regulated finacial services in Jersey-Convicted for failing to comply with the direction of the Jersey Financial Services- The Institute's Investigation Committee preferred a complain Appellant- Alleging that he was liable to disciplinary action under bye-law(4)(1)(a) of the Institute's bye-laws- Summary dismissal of second complaint-Two complaints did not allege the same thing: the first was based on the fact of the conviction dismissing application-Hence the application- Supreme Court unanimously allowed the appeal.

Held, that the principle of res judicata required that the second complaint be dismissed. Lord Clarke stated that the two complaints alleged the same breach of bye-law 4(1)(a). On the true construction of bye-law 7(1) the role of a conviction was only to provide conclusive evidence of a breach of bye-law 4(1)(a). It was precisely the same complaint as was advanced in the second complaint. Hence the principles of res judicata and not those of autrefois convict apply to disciplinary proceedings,which are civil in nature.

• CRIMINAL LAWS

Supreme Court of United Kingdom

Yemshaw Vs. London Borough of Hounslow (Decided on 26.01. 2011)

Meaning of word "violence"- Section 177(1) of the Housing Act 1996- Limited to physical contact- Appellant left the matrimonial home taking her two young children and sought the help of the local housing authority-Complained of her husband's misbehaviour- Local Authority considered whether homeless-Probability of domestic violence low- Not otherwise on Appeal

Held, the solution to the problem raised by this case once lied in the Secretary of State's order-making power under section 177(3)(a) of the 1996 Act. But there are difficulties in the use of this power: first, that, given the Secretary of State's view that the victims of psychological abuse are already covered by section 177(1), he cannot properly specify their needs as arising in "other circumstances"; secondly, that the use of this power could not in any event affect the proper approach to section 198 so that the problem would not be entirely solved. There would remain the possibility of someone being returned for re-housing to an area where, although not cohabiting with an abuser, he or she might be at risk of future psychological abuse from a non-cohabiting family member . Therefore section 177(3) as the solution to this case. "Physical violence" is not the only natural meaning of the word "violence". Another natural meaning is"strength or intensity of emotion; fervour, passion".By the time of the 1996 Act, both international and national governmental understanding of the term "domestic violence" had developed beyond physical contact. Rather the Court has no alternative but to decide whether it is indeed now right to give to the terms "domestic violence" and"violence" the wider meaning contended for by the Appellant and both interveners. Thus the views of the majority should prevail and that the appeal should be allowed.

• CONSUMER LAWS

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission Vs. Robinson [2011] FCA 17 (Decided on 17.01.2011)

Trade Practices-- Sentencing of defendant for eight offences under Section 75AZS(1) of the Trade Practices Act 1974 - Defendant pleaded guilty to eight offences - Defendant sold baby sleeping bags imported from China on e Bay - Bags did not comply with relevant Australian Standard - Defendant warned by Australian distributor of products - Australian Competition and Consumer Commission and Defendant subsequently co-operated fully with authorities - whether appropriate to treat all eight offences as one offence pursuant to Section 79(2) - whether appropriate to exercise power in 19B of Crimes Act not to proceed to conviction.

Held, it was not appropriate to exercise the power in Section 19B of the Crimes Act because of the importance of consumer standards and the Defendant's failure to make enquiries before he began selling the products Moreover the Defendant also failed to make further proper enquiries after he was alerted with regard to the potential problems with them. A fine of $1,000 was imposed in relation to each of the offences occurring before the defendant was contacted by the Australian distributor of the product and himself contacted the ACCC, and a fine of $1,500 was imposed in relation to each offence occurring after those events.