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ANTITRUST Archer Daniels Midland trial merits twin juries A district court can empanel two separate juries in an antitrust case to minimize the possibility of jurors wrongly attributing evidence applicable to one defendant to other defendants, the 7th U.S. Circuit Court of Appeals ruled on March 18. In re High Fructose Corn Syrup Antitrust Litig., No. 04-8004. During antitrust litigation against Archer Daniels Midland (ADM), Staley Manufacturing Co. and two other defendants over the alleged price-fixing of corn syrup, evidence damaging to ADM was admitted in a separate criminal trial. Worried about its effect on the case against the other defendants, the district court proposed empaneling two juries: one for ADM, the other for the rest. Unsure of its authority to implement such a system, the district court certified its proposal to the 7th Circuit. The 7th Circuit ruled the district court is not forbidden from empaneling separate juries. “No rule, principle, precedent, statute, regulation, or other source of limitations on the power of district judges stands athwart the procedure that the judge would like to employ,” the court ruled. Full text of the decision BUSINESS LAW Court wrong to vacate insider-trading verdict Stating that it is up to a jury to decide between competing plausible theories, the 11th U.S. Circuit Court of Appeals on March 19 reinstated an insider-trading verdict against a CEO whose relatives bought stocks after he called them. U.S.S.E.C. v. Ginsburg, No. 03-10848. Scott Ginsburg was chairman and CEO of a corporation that owned and operated radio stations. Following discussions with EZ Communications about a possible acquisition, Ginsburg phoned his brother and father, who bought shares in EZ. The Securities and Exchange Commission brought a civil action against Ginsburg, alleging that he had communicated material, nonpublic information to his relatives and that they had traded stock using that information. A Florida federal jury found that Ginsburg had violated insider-trading laws. But the court granted Ginsburg’s motion for judgment as a matter of law, and vacated the verdict, concluding that no reasonable jury could find that he had provided insider information. The 11th Circuit reversed, reinstating the civil penalty awarded by the jury. Noting that the trial court had found it plausible that the investments were the result of public knowledge rather than tips, the 11th Circuit declared that “it is also plausible that they were driven by insider information [a]nd it was up to the jury to choose between those competing plausible theories of fact.” Full text of the decision CIVIL PRACTICE Union Carbide property-damage claims can go on Individuals who live near the site of the former Union Carbide plant in Bhopal, India, have waited too long to pursue their claims for personal injuries caused by pollution from the site, but they can pursue their claims for property damage, the 2d U.S. Circuit Court of Appeals ruled on March 17. Bano v. Union Carbide Corp., No. 03-741. In 1984, toxic gas at the Union Carbide plant in Bhopal was released into the air, killing thousands and injuring hundreds of thousands. Claims against the Indian-based company, 50.9% of which was owned by U.S.-based Union Carbide Corp., for injuries caused by the emission were eventually settled. A 1999 report by Greenpeace Research Laboratories indicated that local soil and water were contaminated. A plaintiff who moved near the site in 1990, and four organizations representing local residents, then sued Union Carbide claiming personal and property injuries. A New York federal court dismissed the action. Affirming in part and reversing in part, the 2d Circuit said that the New York statute of limitations for personal injury claims had expired and that the individual plaintiff’s injuries were manifest in 1990, within weeks of her arrival, yet she waited until 2000 to sue. However, because government tests in 1990 and 1997 had found that there was no groundwater contamination, the plaintiffs’ claims for property damage can fairly be said to have accrued when the Greenpeace report was issued in 1999. Full text of the decision CRIMINAL PRACTICE Jailer must free detainee only if he has wrong man Jail personnel have a duty to release a prisoner promptly only when they know or should know that they are holding the wrong individual, the Washington Supreme Court held on March 18. Stalter v. State, No. 73088-1. In consolidated cases, two men sued Pierce County for false imprisonment after being arrested and jailed under arrest warrants for other people. The trial courts in both cases granted the county’s motions for summary judgment. In Kevin Stalter’s case, the court said that jail personnel had no duty to investigate his claim of mistaken identity because such a duty resided with the arresting officer. In David Brooks’ case, the court said that the county’s liability ended when he was brought before a judge because from that moment on, he was held pursuant to a court order. The intermediate-level Washington Court of Appeals consolidated the suits and reversed the summary judgments, stating that “once jail management is on notice that it may be holding a detainee under authority of a warrant erroneously, it has a duty . . . to investigate further.” Affirming, the state Supreme Court said that jail employees have a duty to take steps to release a detainee promptly once they know that the person they are holding is not the person named in the arrest warrant. But, disagreeing with the Court of Appeals, the high court held that merely being put on notice that they may be holding the wrong person does not place a duty on jail staff to investigate claims of misidentification. Full text of the decision GOVERNMENT IRS told to release parts of a report to Congress An IRS report to a congressional joint tax committee may be released under the Freedom of Information Act (FOIA) if the parts of it that are unrelated to a directive from the committee can be separated from parts that are not, the U.S. Circuit Court for the District of Columbia ruled on March 5. United We Stand America Inc. v. Internal Revenue Svc., No. 02-5266. In 1997, a congressional tax committee investigated the tax-exempt entities that the Internal Revenue Service had chosen to audit, to determine if the IRS’ choices were politically motivated. In an April 1997 letter, the committee chief of staff requested documents from the IRS, adding that the document would constitute a congressional record that could not be disclosed without the committee’s prior approval. The IRS forwarded a 17-page report. Three years later, United We Stand submitted a FOIA request to the IRS requesting release of all documents that referred to the organization. The IRS disclosed many documents but not the committee report. United sued, but the trial court held that the report was part of a congressional record over which the IRS had no control. Reversing, the D.C. Circuit held that evidence of the committee’s intent to retain control over the entire report was ambiguous. It said that the April 1997 letter referred to the request for “this document,” but did not indicate whether “this” meant only the request letter or the response, too. Because of the ambiguity, only the request letter would be deemed to have remained in Congress’ control. The court remanded the case to determine if portions of the document that did not refer to the request letter could be separated from the rest of the report and disclosed to United. Full text of the decision INTELLECTUAL PROPERTY ‘Jingle All the Way’ film didn’t infringe copyright Twentieth Century Fox Film was entitled to summary judgment in a copyright infringement suit brought by a writer who claimed that the film Jingle All the Way was copied from his screenplay, the 6th U.S. Circuit Court of Appeals held on March 19. Murray Hill Publications v. Twentieth Century Fox Film Corp., No. 01-2668/2721. In 1993, 20th Century Fox Film writer Randy Kornfield tried to buy a popular action figure for his son, but encountered difficulties. He wrote a six-page treatment about a man trying to buy a popular action figure for his son for Christmas, and registered it with the Writers Guild of America in January 1994. He revised the story, and Fox released Jingle All the Way in November 1996. The film was a box office hit. Aspiring scriptwriter Brian Webster also had trouble buying an action figure one Christmas and wrote a screenplay about it, which he registered with the Copyright Office in 1989. In February 1994, Webster sold an option to his script to Murray Hill Publications, which submitted it to Fox in June 1994, where it was read by a Fox script reader a few months before the same reader read Kornfield’s work. Murray Hill sued Fox. A Michigan federal jury found in favor of Murray Hill and awarded damages. But the court granted Fox’s motion for judgment as a matter of law and reduced the award. Reversing the jury’s verdict, the 6th Circuit found that Fox was entitled to summary judgment on the issue of substantial similarity. The court held that Kornfield had registered his treatment before Fox had access to Webster’s work. Of 24 alleged similarities between the two, all but six existed in Kornfield’s original “treatment.” Full text of the decision LEGAL PROFESSION Attorney’s name-calling doesn’t merit sanction An attorney’s name-calling of a government employee did not violate Maryland Rules of Professional Conduct (MRPC), the Maryland Court of Appeals ruled on March 19. Attorney Grievance Comm’n of Maryland v. Link, No. 97. While attempting to discover insurance coverage information at a motor vehicles agency, attorney Harold S. Link Jr. became involved in a confrontation with a customer service agent. Link, who is Caucasian, reportedly referred to the agent, a 61-year-old African-American, as “Sparky.” Although Link denied that he had any knowledge that “Sparky” was a racially derogatory term, the agent testified that Sparky was a racial slur for African-Americans of an older generation. A trial judge found that Link’s conduct violated MRPC 4.4, which states that “[i]n representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person.” The Maryland high court reversed. Dismissing the action, it said that, while it didn’t condone the lawyer’s conduct, his action was neither criminal nor of a kind whose harm was patent. Full text of the decision

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