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STATE SUPREME COURT TAKES UP SIEBEL SUIT The California Supreme Court on Wednesday granted review in the case of a San Mateo County judge and a Bay Area lawyer accused by a tech mogul of malicious prosecution. With a 5-2 vote, the court elected to review the Sixth District Court of Appeal’s decision to reinstate the suit by former Siebel Systems Inc. CEO Thomas Siebel against now-San Mateo County Superior Court Judge Carol Mittlesteadt and lawyer E. Rick Buell II for allegedly pursuing a case they knew had no merit. Mittlesteadt and Buell represented a female employee of San Mateo’s Siebel Systems who claimed she was unfairly terminated and faced sexual discrimination at work. The case was originally filed in 1996. Mittlesteadt was appointed to the bench by Gov. Pete Wilson in 1998. Among the arguments the court will hear is whether a settlement can be considered a “favorable termination” that allows a malicious prosecution suit. Defense attorney Tony Tanke argued in court briefs that if the decision stands, fewer civil cases will end in final settlements “and hundreds more malicious prosecution cases will be filed, prolonging in-court feuds.” Tanke appealed on grounds that the case ended when Siebel settled out of court with the former employee. Siebel’s attorney, Maxwell Blecher, has said Siebel should never have been sued because employment statutes specify that only companies, not individuals, can be charged in such cases. Siebel has resigned as chief executive officer but remains chairman of the company he founded in 1993. The case is Siebel v. Mittlesteadt, S125590. — Justin M. Norton GARAGE DOOR MAKER LOSES DMCA APPEAL The Federal Circuit U.S. Court of Appeals has nixed a garage door manufacturer’s attempt to use copyright law to block a competitor’s product from the market. The Chamberlain Group Inc. claimed Skylink Technologies Inc. violated the Digital Millennium Copyright Act by selling a transmitter for a garage door opener that circumvents software code on its own opener. Chamberlain’s transmitter has a copyrighted computer program that constantly changes the transmitter signal needed to open a garage door. In its ruling Tuesday, the Federal Circuit said Chamberlain’s interpretation of the law was not what Congress intended in passing the legislation. “Chamberlain’s proposed construction would allow any manufacturer of any product to add a single copyrighted sentence or software fragment to its product, wrap the copyrighted material in a trivial ‘encryption’ scheme, and thereby gain the right to restrict consumers’ rights to use its products in conjunction with competing products,” the court said. In other words, the court continued, “Chamberlain’s construction of the DMCA would allow virtually any company to attempt to leverage its sales into aftermarket monopolies.” Deirdre Mulligan, director of the Samuelson Law, Technology and Public Policy Clinic at Boalt Hall School of Law, said the ruling limited the application of the DMCA’s anti-circumvention provision “to protect copyrighted works against unauthorized access and copying.” The Samuelson Clinic filed an amicus brief on behalf of the Consumers Union. Students at the clinic also filed an amicus brief for the union in a similar suit, Lexmark International v. Static Control Components, 02-571, pending before the Sixth Circuit U.S. Court of Appeals. In that case, Lexmark claims Static Control violated the DMCA by selling computer chips that allow consumers to use non-Lexmark toner cartridges with Lexmark printers. A federal court in Kentucky ruled in Lexmark’s favor. — Brenda Sandburg COP IN FAJITAGATE TO GET OWN TRIAL A San Francisco Superior Court judge on Wednesday agreed to let one of three cops in the so-called “fajitagate” case opt out of a change of venue, according to his lawyer. When Judge Kay Tsenin recently granted two of the men facing assault-related charges stemming from a 2002 street brawl the change of venue they were seeking, she included co-defendant David Lee in her decision to move the trial to Sacramento. But Lee’s attorney, Mark Nicco, didn’t want to take his case anywhere. He asked the judge to reconsider. Nicco said that on Wednesday, Tsenin agreed to let Lee keep his trial in San Francisco, which effectively severs his case from that of co-defendants Alex Fagan Jr. and Matthew Tonsing. Nicco had argued twice before to sever his client’s case, both times unsuccessfully. He first said Lee shouldn’t have to sacrifice his right to a speedy trial while Fagan Jr. and Tonsing sought more time to prepare their change-of-venue request. Then when Fagan Jr., who had already received a lot of negative publicity, made headlines again with an arrest for an alleged assault in Arizona, Nicco argued that Lee would be prejudiced by association. Now that Lee’s wish to be tried separately from Fagan Jr. has been fulfilled, the big question is whether Tonsing’s lawyer, Freya Horne, will ask for similar treatment, Nicco said. “It’s basically up in the air.” Horne could not immediately be reached for comment Wednesday afternoon. — Pam Smith SIDLEY AUSTIN SUIT OVER TAX PLAN WILL PROCEED NEW YORK — A Manhattan federal judge has allowed fraud and recision claims to proceed against Sidley Austin Brown & Wood and other defendants for their role in promoting a tax shelter. In sustaining some of the claims brought by William Seippel, a Virginia telecommunications executive, and his wife, Sharon, Southern District of New York Judge Shira Scheindlin departed from other federal district courts that have dismissed tax shelter cases for lack of ripeness and on other grounds. “The fact that the Seippels may not ultimately owe the tax authorities additional taxes does not mean that their action is not ripe,” the judge wrote in Seippel v. Jenkens & Gilchrist, 03-6942. “The Seippels allege that they have been damaged, and continue to be damaged, as a result of defendants’ conduct. — New York Law Journal

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