U.S. Supreme Court's Circuit
City v. Adams Decision Reversed On Remand.
In our April, 2001 issue, we reported that the U.S. Supreme Court
ruled that an employer may compel arbitration by means of an
employment agreement, since the Federal Arbitration Act pre-empts
state discrimination laws. That case was remanded to the 9th
Circuit, which has now ruled that upon reconsideration, the arbitration
agreement is so one-sided that the agreement is "unconscionable,"
and is not enforceable. Circuit
City Stores, Inc. v. Adams, No. 98-15992 (9th Cir. February
4, 2002).
The European Union: EC Applies EU VAT To Online Sales.
The EU's Council of Economics and
Finance Ministers has voted to apply the European Union's Value
Added Tax (VAT) to online sales of digital products. The position
was taken despite US objections that such a tax would violate
World Trade Organization rules, and would hurt US businesses.
VAT taxes range from 15 - 25%. The plan now goes to the European
Parliament, which must agree before the Council can enact the
proposal. See coverage at Newsbytes,Wired,
and News.com.
Enron Failure May Result
in Revision of ABA Ethics Rules. After five years of soul-searching
debate, an ABA committee revising and updating the ABA's ethics
rules had determined that a lawyer's duty to protect his client
prevailed over his duty to report questionable financial transactions.
That was before the crash of Enron. Now, in view the bankruptcy
of the Enron Corporation due to financial and accounting irregularities,
some are predicting that the body will again take up the question
at its Annual Meeting in August, 2002. Coverage at law.com.
SEC To Propose Requirement
That Public Companies Post Their Financial Information On Their
Own Websites. The U.S.
Securities and Exchange Commission (SEC) has announced plans
to propose new disclosure rules which would require that public
companies post their financial information online on their own
websites, in addition to their required postings at Edgar,
the SEC's public securities database. The action is taken in
response to the Enron bankruptcy following accounting irregularities.
For coverage, see the Washington
Post and Wired.
For the SEC announcement and proposed rules, see the SEC
press release.
ABA: UCITA So Confusing It Would Require Litigation
to Interpret Its Meaning. A committee of the American Bar
Association (ABA) assigned to review the Uniform Commercial Information
Transactions Act (UCITA), the controversial software licensing
law, found it extremely difficult to understand, and concluded
that the law would require litigation to interpret the meaning
of its terms. Coverage at Computerworld.
See the ABA committee's working
report.
Enhancements to Business
Software Not Copyrightable. Additions and enhancements to business
software which were designed to implement business policies were
not copyrightable original expressions, but rather ideas and
methods of operations, a U.S. District Court of Massachusetts
has ruled. Coverage at BNA's
Patent, Trademark and Copyright Journal. Case not posted
here because Massachusetts
District Court uses PACER
system, requiring pre-registration (takes about a week), and
$.07/page download charge.
Employer May Refuse to Rehire
to Avoid Pension Liability. Employer's refusal to rehire former
employees because of its wish to avoid any increase in pension
liability is not a prohibited conduct under Section
510 of the Employee's Retirement & Income Security Act
(ERISA).
Plaintiff former employees had vested pension rights or were
due credit for past service, if rehired, but had no right to
be rehired. Therefore, Employer's action was not prohibited under
Section 510. Becker
vs. Mack Trucks, Inc., No. 00-4414, U.S.Ct.App.3d Cir., (February
21, 2002), or PDF
version.
Judge's Memory of Settlement
Terms Controls Where No Written Record is Made. During settlement conferences before
a judge, if neither party asks that any part of the discussion
be recorded, the judge's memory of the settlement terms will
control. A party who failed to get the settlement read into the
record may not complain that the judge's recollection of the
terms of the settlement is inaccurate. Lynch
vs. SamataMason, Inc., No. 00-1491, 00-1915, U.S. Ct.App.
7th Cir.(January 29, 2002).
"Vendor's Endorsement"
Covers Only Passive Distributor. "Vendor's Endorsement"
clauses in comprehensive general liability (CGL) insurance policies
owned by manufacturers are intended to provide insurance coverage
for a distributor or retailer who distributes one of manufacturer's
products which is later determined to be faulty. But, applying
an economic analysis, Judge Posner of the 7th Circuit Court of
Appeals has ruled that the endorsement does not extend to provide
coverage to a distributor who was not passive, but rather was
involved in the manufacture and labeling of the product at issue.
Hartford
Fire Ins. Co. v. St. Paul Surplus Lines Ins. Co., No. 01-1946
(February 6, 2002). Appeal, N.D. Ind., S. Bend Div. Aff’d.
Layman's "Legal Advice"
Website Does Not Constitute the Unauthorized Practice of Law.
According to the Ohio Board of
Commissioners on the Unauthorized Practice of Law, a non-lawyer
offering "free legal advice" was not guilty of the
unauthorized practice of law, since the information provided
was only generic, and not tailored to any specific person. "I
can assure you that it is not necessary to be a lawyer in order
to provide some guidance and/or advice on how to deal with your
legal problems," the non-lawyer wrote. Nevertheless, the
Commissioners ruled that the advice posted on the website was
the kind that can commonly be found in magazines at your local
newsstand. Coverage at the ABA
Journal, and USA
Today. Decision not posted online.
University's Patent Policy
Prevails Over Grad Student's Patent Application. Inventions by a graduate student
were the property of the University, pursuant to the University's
patent policy, even though the graduate student listed himself
as the sole inventor or co-inventor. The Court found that the
university's patent policy broadly applied to all university
personnel and did not specify that the university's ownership
is subject to election by personnel. University
of West Virginia v. VanVoorhies, Nos. 00-1440, 00-1478, U.S.Ct.App.
Fed. Cir., (January 30, 2002).
Use of "Thumbnails"
in Search Engine Constitutes Fair Use. The use of "thumbnails"
by a search engine results in no copyright violation under the
fair use doctrine, but the search engine's use of the same images,
displayed as full-sized images, violates the photographer's right
to the exclusive display of his works. Kelly
vs. Arriba Soft Corporation, 00-55521, U.S. Ct. App. 9th
Cir., (February 06, 2002).
United Kingdom Introduces
Online Filing of Lawsuits .
The Court Service of England and Wales has introduced Money
Claim Online, an online writ service that allows anyone claiming
up to £100,000 to launch their suit via the Internet. As
reported in the Guardian.
Iowa, Missouri, Oklahoma
and Wisconsin Post Court Dockets Online. Iowa
Courts Online: Available are civil, criminal, probate, and
traffic courts in all Iowa counties and from Iowa's Appellate
Courts from 1997 to present, but some earlier cases may be posted.
Missouri case.net:
Civil, criminal, probate, and traffic courts in many Missouri
counties as well as from Missouri's appellate courts. Oklahoma
State Courts Network: Civil, criminal, probate, traffic and
other
types of cases for appellate and district courts served by system.
Also available is information about marriage licenses, drivers
licenses, tax liens, workers compensation claims, and more. Wisconsin
Circuit Court Access: Civil, criminal, traffic, forfeiture,
family, and civil case information and judgments in circuit courts
for most (but not all) Wisconsin counties.
European Parliament Approves
"dot eu" (.eu) Domain Names. The European Parliament has approved
the domain extension ".eu" which it believes will benefit
all people and businesses within the European Union. The decision
comes as ministers from 15 EU countries meet in Vitoria in northern
Spain to decide how to better use technology and the internet
within the EU. Coverage at yahoo.com.
Is the Internet Running Out
of Room?! The internet's real estate is running
out of room - at least in Europe, according to the European Commission
(EC). The EC proposes that the infrastructure of the Internet
be shifted from the current Internet Protocol version 4 (IPv4)
to Internet Protocol version 6 (IPv6) in order to make room for
the flood of wireless devices coming to the Net. Every wireless
device accessing the internet, including cell phones, requires
its own IP address. Europe is "12 to 18 months ahead of
the U.S. when it comes to cell phones and the use of cell phones
for e-commerce," said analyst Stan Schatt, of Giga Information
Group. But "Europe didn't get as many IP addresses as the
United States," he added. Coverage at news.com.