How Appealing

Wednesday, May 16, 2007

“Breaking News: Plaintiffs to File Cert Petition in Crawford, the Indiana Voter ID Case; Why the Supreme Court Should Take the Case.” Law Professor Rick Hasen has this post today at his “Election Law” blog.

The Seventh Circuit‘s divided three judge panel’s ruling in that case can be accessed here, while my coverage of that ruling appears at this link. And the Seventh Circuit’s order denying rehearing en banc, over the dissent of four judges, can be accessed here, while my coverage appears at this link.

Posted at 9:05 PM by Howard Bashman

Fifth Circuit affirms the dismissal of lawsuit against the owner of The San Antonio Express-News seeking damages for invasion of privacy based on public disclosure of private facts: We haven’t heard the last of the married Texas attorneys who engaged in a scheme whereby the wife had extra-marital affairs with other men, after which the husband extorted money from the men by threatening to tell their wives and employers of the affairs. According to today’s Fifth Circuit opinion:

The San Antonio Express News, a Hearst subsidiary, published an article describing a blackmail scheme carried out by two married attorneys, Ted and Mary Roberts. The article alleged that Mary had engaged in a series of extramarital affairs and that Ted had then extorted thousands of dollars from Mary’s lovers by sending them draft Rule 202 petitions naming them as defendants. The 202 documents proposed to seek information on whether Ted had legal grounds for a variety of claims, including divorce and obscenity. These documents also mentioned Ted’s intent to contact the men’s wives and employers as witnesses. Under threat of litigation, as many as five men entered into settlement agreements with Ted, who received between $75,000 and $155,000 in total as a result. The article also contained the perspectives of five legal scholars as to the merits of the causes of action raised by Ted against Mary and her lovers and the ethics of Ted’s behavior. Additionally, the story revealed details of the Roberts’ domestic life, including their purchase of a $655,000 house in a San Antonio suburb, the fact that they had an eight-year-old son, and the fact that Mary was the daughter of a Lutheran minister. Ted Roberts has since been tried and convicted on charges of theft related to the allegations in the article.

Today’s appeal arises from a lawsuit in which the trustee for the bankruptcy estate of Ted and Mary Roberts sued the owner of the Express-News for damages on a claim of invasion of privacy based on public disclosure of private facts. Today’s ruling affirms the dismissal on the pleadings of the bankruptcy trustee’s claim.

The article in question was headlined “Sex, lawyers, secrets at heart of sealed legal case,” and it appeared in the Sunday, June 13, 2004 issue of The Express-News. I linked here to the article that morning.

Update: In March 2007, columnist Rick Casey of The Houston Chronicle covered the criminal trial of attorney Ted Roberts in columns headlined “A sexy story of lawyers misbehaving“; “A big grin, a big cigar“; “A novel legal tool of terror“; “Giving back, or taking?“; “Sex, lies and lawyer jokes“; and “Lessons from a lurid trial.”

And more recent coverage from The San Antonio Express-News appeared in articles headlined “New indictments shine more light on charges against lawyer pair“; “Extortion case a tale of money, adultery“; “Adultery blackmail trial starts“; “Roberts trial: Score: 60-15, defense?“; “E-mails take stage in blackmail trial“; “Blackmail trial a tale of two CFOs“; and “For better, for worse, but richer iffy in court.” And public editor Bob Richter had an essay entitled “Is this newspaper correct to name alleged blackmail victims?

Posted at 8:30 PM by Howard Bashman

“The majority’s decision is, in effect, a breathtaking revision of securities class action procedure that eviscerates Basic‘s fraud-on-the-market presumption, creates a split from other circuits by requiring mini-trials on the merits of cases at the class certification stage, and effectively overrules legitimately binding circuit precedents.” So writes Circuit Judge James L. Dennis, dissenting from a decision that a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit issued today.

Posted at 8:12 PM by Howard Bashman

“Who fired the US attorneys? Attorney General Gonzales cites a ‘consensus’ of top Justice officials, but few have acknowledged listing any names.” This article will appear Thursday in The Christian Science Monitor.

Posted at 5:58 PM by Howard Bashman

Another day, another important internet-related ruling from the U.S. Court of Appeals for the Ninth Circuit: Today, a unanimous three-judge Ninth Circuit panel issued its ruling in Perfect 10, Inc. v.

Circuit Judge Sandra S. Ikuta‘s opinion begins:

In this appeal, we consider a copyright owner’s efforts to stop an Internet search engine from facilitating access to infringing images. Perfect 10, Inc. sued Google Inc., for infringing Perfect 10’s copyrighted photographs of nude models, among other claims. Perfect 10 brought a similar action against and its subsidiary (collectively, “”). The district court preliminarily enjoined Google from creating and publicly displaying thumbnail versions of Perfect 10’s images, Perfect 10 v. Google, Inc., 416 F. Supp. 2d 828 (C.D. Cal. 2006), but did not enjoin Google from linking to third-party websites that display infringing full-size versions of Perfect 10’s images. Nor did the district court preliminarily enjoin from giving users access to information provided by Google. Perfect 10 and Google both appeal the district court’s order.

And the lengthy opinion concludes with the following summary of the Ninth Circuit’s rulings:

We conclude that Perfect 10 is unlikely to succeed in overcoming Google’s fair use defense, and therefore we reverse the district court’s determination that Google’s thumbnail versions of Perfect 10’s images likely constituted a direct infringement. The district court also erred in its secondary liability analysis because it failed to consider whether Google and knew of infringing activities yet failed to take reasonable and feasible steps to refrain from providing access to infringing images. Therefore we must also reverse the district court’s holding that Perfect 10 was unlikely to succeed on the merits of its secondary liability claims. Due to this error, the district court did not consider whether Google and are entitled to the limitations on liability set forth in title II of the DMCA. The question whether Google and are secondarily liable, and whether they can limit that liability pursuant to title II of the DMCA, raise fact-intensive inquiries, potentially requiring further fact finding, and thus can best be resolved by the district court on remand. We therefore remand this matter to the district court for further proceedings consistent with this decision.

Thanks to the web site of Electronic Frontier Foundation, you can access many of the documents filed in the case via this link. And the federal district court’s decision that the Ninth Circuit had under review can be accessed here. Finally, my coverage of yesterday’s Ninth Circuit ruling in another important internet-related appeal can be found at this link.

Posted at 12:42 PM by Howard Bashman

“Senate can short-circuit assault on appeals bench”: Today in The Houston Chronicle, columnist Cragg Hines has an op-ed that begins, “If you liked Don Imus, you’re going to love Leslie Southwick. Fortunately, Imus has not been nominated to a seat on the 5th U.S. Circuit Court of Appeals. But Southwick has been.”

And yesterday in The Clarion-Ledger of Jackson, Mississippi, columnist Eric Stringfellow had an op-ed entitled “It’s time for diversity on the 5th U.S. Circuit Court of Appeals.”

Posted at 11:55 AM by Howard Bashman

Fruit by the Foot and online oral argument audio by the minute and second: Now that the U.S. Court of Appeals for the Federal Circuit posts online the audio of its oral arguments, it is possible for that court’s decisions to cite to those online audio files, as demonstrated by this ruling issued today involving a patent infringement dispute between General Mills and Kraft Foods Global over the process for making that inscrutable food known as Fruit by the Foot.

Posted at 11:44 AM by Howard Bashman

“Gonzales: Paul McNulty was major figure in firings.” This article appears today in The Hill.

And today in The Washington Post, columnist Harold Meyerson has an op-ed entitled “The Cost of a GOP Myth” that begins, “If Attorney General Alberto Gonzales clings to his job much longer, he may end up as the only remaining employee of the Justice Department.”

Posted at 9:18 AM by Howard Bashman

“State to revise process for lethal injections; Staff training, new chamber may mean executions resume”: Bob Egelko has this article today in The San Francisco Chronicle.

Today in The Los Angeles Times, Henry Weinstein reports that “State offers new lethal injection protocol; Seeking to end a judge’s ban on executions, officials propose a ‘pain-free’ method.”

In The San Jose Mercury News, Howard Mintz reports that “Schwarzenegger offers plan to resume executions by injection.”

The Sacramento Bee contains an article headlined “State’s new death plan: Strict training of execution team, new chamber are among proposals for judge.”

And The New York Times reports that “California Addresses Death Penalty Concerns.”

Posted at 9:10 AM by Howard Bashman

“C.I.A. Officer Testifies He Was Given Qaeda ‘Pledge Form’ Said to Be Padilla’s”: The New York Times contains this article today.

The Los Angeles Times reports today that “Evidence on terror suspect Padilla has murky origins; His defense questions the validity of his alleged application for Al Qaeda training and its chain of custody.”

USA Today contains an article that begins, “Prosecutors: Form points to Padilla; Document links al-Qaeda, defendant, lawyers say.”

The Miami Herald reports that “‘Secret agent’ testifies about Padilla document; A disguised CIA officer testified that he received a document that prosecutors say was Jose Padilla’s application to join al Qaeda.”

And The South Florida Sun-Sentinel reports that “CIA agent testifies in Padilla trial.”

Posted at 8:55 AM by Howard Bashman

“‘Porn’ auction shows sex sells; Domain name gets $9.5 million, but that’s not a record”: The Los Angeles Times today contains an article that begins, “The free market has spoken: Sex is worth more than porn. That’s one conclusion from the near record-breaking auction of an Internet domain name announced Tuesday. The rights to brought in the second-highest payment for an address since the Web’s creation, with closely held MXN Ltd. forking over $9.5 million. Not a bad return for a domain that sold for a reported $47,000 in 1997. But couldn’t command the payday of, which Boston firm Escom bought last year for more than $11 million in cash and stock.”

Posted at 8:44 AM by Howard Bashman

“Terror Suspect Testifies of Torture in Custody”: This article appears today in The New York Times.

The Los Angeles Times reports today that “Guantanamo terror detainee claims innocence, torture; Majid Khan, a Pakistani national accused of being a scout for Al Qaeda plots, details his allegations against the U.S. at a hearing.”

And McClatchy Newspapers report that “Detainee says he was tortured at Guantanamo.”

You can access the hearing transcript at this link.

Posted at 8:38 AM by Howard Bashman

“Panel told of a sickbed face-off; A former Justice Dept. official testifies how Gonzales sought to ‘take advantage’ of an ailing Ashcroft in 2004”: The Los Angeles Times contains this article today.

Today in The Boston Globe, Charlie Savage reports that “Senate hears of split over wiretaps in ’04; Justice leaders nearly quit, ex-deputy says.”

The Chicago Tribune reports that “Ashcroft ex-aide details wiretap infighting; Gonzales prodded hospitalized official.”

USA Today contains a front page article headlined “Gonzalez accused of ’04 end run while Ashcroft ill; Surveillance OK followed move.”

The Washington Times reports that “Ashcroft, Mueller fought Gonzales plan.”

The Hill contains an article headlined “James Comey: White House pressed.” reports that “Former Deputy AG Details Justice Department Rebellion Over Surveillance Program; Comey, DOJ’s former No. 2 official, describes White House visit to hospitalized AG as part of attempt to overrule him.”

And The Washington Post contains an editorial entitled “Mr. Comey’s Tale: A standoff at a hospital bedside speaks volumes about Attorney General Gonzales.”

You can access a written transcript of yesterday’s Senate Judiciary Committee hearing in five parts: one; two; three; four; and five.

Posted at 8:30 AM by Howard Bashman

“Georgia justices hear DNA objections; Felon’s lawyer says taking specimen violates rights; state contends due process observed”: This article appears today in The Atlanta Journal-Constitution.

Posted at 8:25 AM by Howard Bashman

“Al-Arian film focuses on family, not terror trial”: The St. Petersburg Times today contains an article that begins, “The film USA vs. Al-Arian makes its local debut at the Tampa Theatre tonight, offering an intimate view of the stress endured by the family of Sami Al-Arian during his 2005 terrorism trial.”

Posted at 8:22 AM by Howard Bashman

“Jefferson, prosecutors square off on search powers”: The Hill today contains an article that begins, “After nearly a year of sweeping statements about constitutional separation-of-powers protections, the question of whether Rep. William Jefferson (D-La.) can prevent prosecutors from viewing thousands of pages of documents obtained in an FBI raid of his office may come down to a simple question of logistics. Attorneys for the government and Jefferson argued before a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit yesterday that the Constitution’s ‘speech and debate’ clause protects members of Congress from government intrusion. They differed, however, on just how broadly those protections extend.”

Posted at 8:17 AM by Howard Bashman

“Distress over parody led to First Amendment case”: In today’s issue of USA Today, Joan Biskupic has an article that begins, “Jerry Falwell’s round face and jocular manner, coupled with his inclination for moralistic rhetoric, made him a frequent figure of satire. One extreme example turned into a First Amendment milestone at the U.S. Supreme Court.”

Posted at 7:48 AM by Howard Bashman