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ADMINISTRATIVE LAW Revoking license of pilot convicted in Japan is OK The National Transportation Safety Board (NTSB) did not err in upholding a decision of the Federal Aviation Administration (FAA) to revoke the airman certification of a FedEx pilot for carrying Ecstasy pills into Japan as a passenger on a commercial flight, the U.S. Circuit Court for the District of Columbia held on June 10. Donnelly v. FAA, No. 04-1239. David Donnelly was employed as a FedEx pilot in 1999 when he traveled as a passenger on a Northwest Airlines flight from Detroit to Nagoya, Japan. Upon arrival in Nagoya, customs inspectors found six pills in his pocket, which Japanese authorities tested and claimed were MDMA, known commonly as “Ecstasy.” After Japan convicted Donnelly of importing the six pills, FedEx fired him, and the FAA revoked his airman certification. The NTSB denied Donnelly’s petition for review. Affirming, the D.C. Circuit rejected Donnelly’s argument that the FAA and the NTSB erred because the revocation was based on a Japanese�rather than a United States�conviction. The court also rejected Donnelly’s argument that, as a passenger on the Northwest flight whose primary purpose was not drug smuggling, his actions did not constitute “use” of the aircraft under 49 U.S.C. 44710(b)(2). Examining the language of the statute, the court said, “Congress clearly intended that one could ‘use’ an airplane within the statutory meaning without serving as an airman, or even without being on the plane.” Full text of the decision No private right to access Head Start agency’s data There is no private cause of action under the Head Start Act to enforce access to a designated Head Start agency’s records, the Michigan Supreme Court ruled on June 8. Office Planning Group Inc. v. Baraga-Houghton-Keweenaw Child Development Bd., No. 125448. Office Planning Group (OPG) submitted a losing bid to provide office supplies to a private nonprofit that served as a designated Head Start-program provider in Michigan. OPG’s request to the organization under Michigan’s Freedom of Information Act (FOIA) for copies of the other bids was denied on the ground that the organization was a private corporation. OPG was also denied the records by the federal Health and Human Services Department (HHS), which oversees Head Start programs. OPG sued in state court under state and federal FOIAs. The trial court ruled against OPG, but held that the requested information was subject to disclosure under 42 U.S.C. 9839(a), which provides for “reasonable public access” to information. The appeals court affirmed. The Michigan Supreme Court reversed, ruling that there is no private cause of action under Section 9839(a). Though state courts hold concurrent jurisdiction with federal courts in a matter concerning Section 9839(a), the court found no explicit or implicit intent there to provide for a private cause of action to obtain access to Head Start information. The sole remedy for a violation of Section 9839(a) is an enforcement proceeding by the HHS secretary. Full text of the decision CIVIL PRACTICE Sarbanes-Oxley can’t be used to revive stale claim The Sarbanes-Oxley Act of 2002 does not apply retroactively to revive stale claims under the Securities and Exchange Act of 1934, the 8th U.S. Circuit Court of Appeals held on June 6. Heim v. Cadogan, No. 04-2537. On Feb. 26, 2003, Willis D. Heim filed a complaint against ADC Telecommunications Inc. under the Securities and Exchange Act of 1934 for allegedly making false and misleading statements. At the time Heim’s cause of action accrued, on March 21, 2001, the relevant statute of limitations was one year. On July 30, 2002, Congress enacted the Sarbanes-Oxley Act, which extended the statute of limitations to two years. A Minnesota federal court dismissed the complaint for failure to comply with the statute of limitations. The 8th Circuit affirmed. The Sarbanes-Oxley Act provides that its two-year statute of limitations “shall apply to all proceedings addressed by this section that are commenced on or after the [July 30, 2002] date of enactment of this Act.” The 8th Circuit determined that applying the statute retroactively in this case would impermissibly “impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” Full text of the decision CRIMINAL PRACTICE State can’t impose ban on proximity to minors The state cannot impose a blanket no-contact-with-minors condition of probation and then interpret that provision to include being at the same location as minors in public places, the Vermont Supreme Court ruled on June 10. State v. Rivers, No. 2005 VT 65. A condition of Pete Rivers’ probation was that he not have “contact” with any minor under the age of 16 without the prior written consent of his probation officer. Rivers attended a local fair, after being instructed not to do so. While there, he stood in lines for fair rides near several minors. Upon the recommendation of his probation officer, the state found that Rivers had violated his probation because he put himself in close proximity to minors at the fair. The Vermont Supreme Court reversed. A probationer who has been ordered not to contact a specific individual violates his probation when he is in mere proximity with that individual. Similarly, proximity-contact with minors in a private home is an acceptable probation condition. Here, however, the no-contact condition could extend to fast food restaurants, theaters, parks and libraries where Rivers may be in the proximity of minors. Such a broad condition is a severe restriction of Rivers’ liberty. Full text of the decision EMPLOYMENT Perceived-disabled must also be accommodated The Americans with Disabilities Act (ADA) requires reasonable accommodations for people who are not disabled but are perceived to be such, the 10th U.S. Circuit Court of Appeals held on June 7 on an issue of first impression. Kelly v. Metallics West Inc., No. 04-1051. Beverly Kelly sued her former employer, Metallics West Inc., alleging unlawful discrimination and retaliation under the ADA. A Colorado federal jury entered a verdict for Kelly, finding that Metallics had regarded Kelly as disabled and had thus violated the ADA by refusing to let her return to work without the supplemental oxygen her doctor had ordered, and by terminating her employment in retaliation for requesting that accommodation. The 10th Circuit affirmed, saying that the ADA’s plain language requires reasonable accommodations for people regarded as disabled who, with reasonable accommodations, can perform the essential functions of their positions. Full text of the decision FAMILY LAW Parent can’t be ordered to live in specific location A court has no statutory authority to order a parent to live in a specific location if it determines that to be in the best interests of the child, the Colorado Supreme Court ruled on June 6. Spahmer v. Gullette, No. 03SC751. Jennifer Spahmer and Todd Gullette, an engaged Colorado couple, had a daughter, Jordan, in September 2001. After the couple broke off their engagement, Gullette filed an action to secure parental rights regarding Jordan. Spahmer filed a motion requesting an order allowing Jordan’s permanent residence to be changed from Colorado to Arizona. The trial court decided that it was in Jordan’s best interests to remain in Colorado and ordered Spahmer to remain in Colorado. The court of appeals affirmed. The Colorado Supreme Court reversed and remanded. The parental responsibility statute, Colo. Rev. Stat. � 14-10-124(1.5), instructs trial courts to allocate parental responsibilities according to the best interests of the child. While the statute may require a court to consider physical proximity of the parties to each other as it relates to parenting time, the court found that the plain language of the statute doesn’t allow a court to order a parent where to live. Full text of the decision INTELLECTUAL PROPERTY OxyContin patents are not enforceable The manufacturer of OxyContin cannot stave off the patent infringement of a rival pharmaceutical company due to the manufacturer’s inequitable conduct during its prosecution of the OxyContin patents, the U.S. Court of Appeals for the Federal Circuit ruled on June 7. Purdue Pharma L.P. v. Endo Pharmaceuticals Inc., nos. 04-1189, -1347 and -1357. One of the reasons Purdue Pharma offered in support of its patent for OxyContin was that OxyContin had a narrower dosage range than opiate-based pain relievers like morphine, which made for more efficient adjustment of patient dosages. Purdue sued Endo Pharmaceuticals for patent infringement when Endo tried to introduce a generic version of OxyContin. The district court found that Endo’s proposed version would infringe Purdue’s patent, but determined that Purdue’s patents were unenforceable because it had intentionally withheld the fact that the claim to a narrower dosage range wasn’t based on clinical trials. The Federal Circuit affirmed. Purdue frequently referred to the “results” of its discovery, suggesting that it was supported by experimental work. As the discovery was given as a reason in support of the issuing of the patents, the misrepresentation was material. The misrepresentation was also intentional when it did not reveal that the source of this discovery was not based on scientific proof. Full text of the decision LEGAL PROFESSION Online questionnaire data is privileged Despite a law firm’s disclaimer that it was not forming an attorney-client relationship with those who submitted information on its online questionnaire about a potential class action, the information individuals submitted on the Web site was privileged, the 9th U.S. Circuit Court of Appeals held on June 9. Barton v. United States Dist. Court, No. 05-71086. Andrew Barton and others sued Smith Kline Beecham Corp., doing business as GlaxoSmithKline, alleging damages from the company’s anti-depressant medication, Paxil. Barton and the others had responded to a law firm’s Web site seeking information on potential Paxil claims. Barton provided information on an online questionnaire, and checked a box acknowledging that he was not forming an attorney-client relationship with the firm. At Smith Kline’s request, a federal district court ordered the production of the questionnaires in discovery, holding that the disclaimer established that the questionnaire was not confidential, and that, by checking the box, any privilege had been waived. Barton and the others sought a writ of mandamus to vacate the production order. Granting the writ, the 9th Circuit held that the lower court erred in treating the disclaimer of an attorney-client relationship as a waiver of the confidentiality of the information, noting that privilege applied to prospective as well as actual clients. The court said, “There would be no room for confusion had the communication been in the traditional context of a potential client going into a lawyer’s office and talking to the lawyer. The changes in law and technology . . . do not change the applicable principles.” Full text of the decision

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