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BANKRUPTCY Material is public unless untrue or improper Material that would alter opinions of an interested party triggers an exception to the public-access norm for bankruptcy documents, if the material is untrue, or if it is potentially untrue or included in the filing for an improper purpose, the 1st U.S. Circuit Court of Appeals held on Aug. 31 in a matter of first impression. Gitto v. Worcester Telegram & Gazette Corp., No. 05-1658. Charles and Gary Gitto were associated with a company that filed for bankruptcy protection. They claimed that an investigative report compiled by a court-appointed bankruptcy examiner fell within the “scandalous or defamatory” material exception, contained at 11 U.S.C. 107(b)(2), to the general rule of public access to papers filed in a bankruptcy case and should be redacted or sealed. The bankruptcy court refused, holding that the material at issue was not scandalous or defamatory. A Massachusetts federal court affirmed. The 1st Circuit affirmed, noting that there is virtually no legislative history for Section 107. It said that “papers filed in bankruptcy court do not fall within the �107(b)(2) exception merely because they would have a detrimental impact on an interested party’s reputation.” Rather, case law and interpretation of analogous sources to Section 107(b)(3) support a “context-sensitive approach to the exception,” whereby “material that would cause a reasonable person to alter his opinion of an interested party triggers [the exception] based on a showing that either (1) the material is untrue, or (2) the material is potentially untrue and irrelevant or included in the bankruptcy filing for an improper end.” Full text of the decision CIVIL PRACTICE Technical breach of filing rules may be overlooked A district court has the inherent authority to overlook violations of its own local rules on electronic filings, the 2d U.S. Circuit Court of Appeals ruled on Aug. 29. Phoenix Global Ventures v. Phoenix Hotel Associates, No. 04-5713. Phoenix Global Ventures sued Phoenix Hotel Associates and three others in New York state court. Phoenix Hotel sought to remove the action to federal court, even though one of the other defendants did not join in the motion. Phoenix Global then tried to file a motion to remand. Phoenix Global’s first attempt at filing the motion through the district court’s electronic filing system was rejected for being too large. The attorney was assured that his second attempt-which was the last day under the filing deadline-went through. Yet the next day, he learned that the filing was rejected due to an invalid hearing date. The attorney’s third attempt to file his motion electronically succeeded. Phoenix Hotel opposed the motion for being late, but the district court found the motion to have been filed in a timely fashion and granted it. The 2d Circuit affirmed. Looking toward a similar situation with respect to motions to remove, the court noted that the federal remand statute does not specify how nontrial motions are “made.” Consequently, nontrial motions are “made” when they are “filed,” and the making of a nontrial motion is therefore governed by local rules to the same extent as the filing of a notice of removal. District courts are allowed to excuse failures to comply with local rules, such as its electronic filing system, for purposes of determining when a motion was made. Intervenors need not prove they have standing Conservation groups may intervene as a matter of right in a quiet title action regarding a right-of-way through a national park, without first proving they have standing, the 10th U.S. Circuit Court of Appeals held on Aug. 30 in an issue of first impression. San Juan County, Utah v. USA, No. 04-4260. San Juan County, Utah, sought to quiet title in a right-of-way along a portion of Salt Creek running through the Canyonlands National Park and sought a declaration that the National Park Service cannot use a gate to restrict San Juan’s right of way. A Utah federal court denied intervention of three conservation groups. San Juan had argued that before the groups can intervene under Fed. R. Civ. P. 24, they must first establish that they have standing to do so. The 10th Circuit reversed, holding that prospective intervenors, whether permissive or “as a matter of right” do not have to establish their own standing under Article III of the U.S. Constitution, in addition to meeting Rule 24, (a)(2)’s requirement that the intervenor have an interest in the litigation, as long as there is a justiciable case and controversy between the parties already in the lawsuit. The groups in the present case have a direct, substantial and legally protectible interest in the portion of the Salt Creek Road at issue in this litigation, and are entitled to intervene as a matter of right. CIVIL RIGHTS Though nonsexual, abuse may still violate Title VII A supervisor’s offensive conduct-while not facially gender-specific-still constituted sexual harassment under Title VII of the 1964 Civil Rights Act because of qualitative and quantitative differences in the supervisor’s harassment of female and male employees, the 9th U.S. Circuit Court of Appeals held on Sept. 2. Christopher v. National Education Ass’n, No. 04-35029. Three female employees of the National Education Association (NEA)’s Alaska affiliate filed a complaint with the federal Equal Employment Opportunity Commission (EEOC), alleging sexual harassment by their NEA supervisor. The EEOC then filed an action against NEA-Alaska in an Alaska federal court, alleging a sex-based hostile work environment for the women. The three employees intervened in the action and filed a motion to join the national NEA as a defendant, which the court granted. The women claimed that their NEA-Alaska supervisor abused them verbally and in a manner different from their male colleagues. The alleged conduct included loud, profane yelling at the women, although there were no allegations that the comments were lewd or sexual in nature. The court granted summary judgment to both the NEA and NEA-Alaska, holding that the supervisor’s conduct was not “because of sex,” and thus, not actionable under Title VII. Reversing, the 9th Circuit held that although there were no allegations that the supervisor’s comments were lewd or sexual in nature, the conduct was still actionable under Title VII due to the differences in the manner in which the supervisor’s comments were directed at men and women. The court said, “[A] pattern of abuse in the workplace directed at women, whether or not it is motivated by ‘lust’ or by a desire to drive women out of the organization, can violate Title VII.” EVIDENCE Statement to police isn’t admissible without cross Statements made to law enforcement agents are testimonial for purposes of the Sixth Amendment’s confrontation clause, and thus inadmissible without cross-examination, the Massachusetts Supreme Judicial Court held on Aug. 29 in a case of first impression. Commonwealth v. Gonsalves, No. SJC-09329. Hermany Gonsalves was charged with assault and battery after his girlfriend told police he had attacked her. Invoking her Fifth Amendment right against self-incrimination, the girlfriend did not testify at trial. Prosecutors sought to admit evidence of her statement to police under the excited utterance exception to the hearsay rule, and Gonsalves moved to exclude the statement. The trial court held that the statement was inadmissible pursuant to the U.S. Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36 (2004). The Commonwealth sought review. A single justice of the Massachusetts Supreme Judicial Court reversed, but referred the matter to the entire court. Vacating and remanding, the full Massachusetts Supreme Judicial Court held that the girlfriend’s statement was inadmissible under Crawford. The court said, “Under our reading of Crawford statements elicited by such interrogation are per se testimonial and therefore implicate the confrontation clause. No further analysis is needed. The statements are inadmissible unless the declarant testifies at trial or formally is unavailable and was previously subject to cross-examination.” IMMIGRATION LAW Drafted Nazi SS member is removed from U.S. After living in the United States for nearly 50 years, a German’s U.S. citizenship was revoked for failure to reveal having been a member of the Nazi SS, the 7th U.S. Circuit Court of Appeals held on Sept. 1. USA v. Wittje, No. 04-3517. In 1943, Joseph Wittje was drafted by Germany, with the acquiescence of his country of residence, Romania. Assigned to the Waffen SS, his main assignment was with the 9th Company SS Death’s Head Guard Battalion at the Sachsenhausen concentration camp. In 1950 Wittje entered the U.S. with a visa. He became a citizen in 1959, after completing a petition that required him to list his past memberships in any organizations in any country. He did not list membership in the Waffen SS. In September, 2003, the U.S. sought to revoke Wittje’s citizenship, alleging that he had unlawfully procured a visa by failing to disclose his membership in a movement hostile to the U.S., the Waffen SS. Wittje claimed that he was a member of a “track and field sports competition unit” stationed near the camp, and that he never entered the prison camp proper. The United States claimed he was a guard at the camp. An Illinois federal court granted summary judgment to the United States. The 7th Circuit affirmed, holding that Section 13 of the Displaced Persons Act (DPA) of 1948 precludes the issuing of visas to anyone who had participated in any movement that was hostile to the United States or its form of government. Disagreeing with Wittje’s claim that, because he was drafted to the Waffen SS, his membership did not make him ineligible for a visa, the court referred to the U.S. Supreme Court’s ruling in Fedorenko v. U.S., 449 U.S. 490, which held that there was no involuntariness exception to the DPA’s withholding of visas from people who had “assisted the enemy in persecuting civil[ians].” INTELLECTUAL PROPERTY Imitation online-gaming service violates DMCA The creators of an imitation online-gaming service violated the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA), the 8th U.S. Circuit Court of Appeals ruled on Sept. 1. Davidson & Associates v. Jung, No. 04-3654. Davidson & Associates Inc. d/b/a Blizzard Entertainment, a subsidiary of Vivendi Universal Games Inc., creates and sells software games for personal computers. It also created “Battle.net,” a 24-hour online-gaming service for purchasers of its computer games. Battle.net is a free service and allows owners of Blizzard games to play each other over the Internet using their personal computers. Blizzard instituted anti-piracy measures to restrict access to its games. The “bnetd project,” a group of volunteer game hobbyists and programmers, developed a program called the “bnetd.org server” that imitates the Battle.net service and allows users to play online without using Battle.net. The bnetd project used reverse engineering to develop certain programs to make the service as much like Battle.net as possible. The bnetd.org emulator allows users to access Battle.net mode features, resulting in unauthorized copies of Blizzard games being played on bnetd.org servers. Blizzard and Vivendi sued, alleging circumvention of copyright protection systems in violation of 15 U.S.C. Sec. 1201(a) of the DMCA. A Missouri federal court granted summary judgment in favor of Blizzard and Vivendi. The 8th Circuit affirmed. Section 1201(a)(1) provides that “[n]o person shall circumvent a technological measure that effectively controls access to a work protected under this title.” Because the bnetd project had to use reverse engineering to obtain copies of Battle.net, and made use of the literal elements of Battle.net mode to implement its own imitation project, circumvention had taken place. Faux-rock sculpture gets copyright protection A faux-rock engraved with a verse from the public domain is entitled to copyright protection based solely on the object’s appearance, the 3d U.S. Circuit Court of Appeals ruled on Aug. 30. Kay Berry Inc. v. Taylor Gifts Inc., No. 04-3809. Kay Berry Inc. created Sculpture No. 646 as part of its “Garden Accent Rocks,” cement-cast outdoor sculptures inscribed with writings. Sculpture No. 646, Kay Berry’s most popular sculpture, is a rectangular object made to look like a stone, inscribed with five lines of verse from the public domain about building a stairway to heaven with tears. During 2003, Bandwagon Inc. began supplying to Taylor, and Taylor began marketing and selling, a “Memory Stone,” which was similar to Kay Berry’s Sculpture No. 646. Memory Stone was similarly shaped and adorned with the same verse in the same five-line format and font style as Sculpture No. 646. Kay Berry sued for copyright infringement. A Pennsylvania federal court ruled for Taylor Gifts and Bandwagon, concluding that Sculpture No. 646 lacked any protectible configuration or design. The 3d Circuit reversed. Kay Berry’s visual presentation of the verse created sufficient “quantum of creativity” to qualify for copyright protection, the circuit court said. This protectible originality is based solely on Sculpture No. 646′s appearance. Kay Berry should have had the opportunity to demonstrate that the Memory Stone is not a unique creation, nor the unavoidable expression of a common idea, but an impermissible copy of Sculpture No. 646, the court said. LEGAL PROFESSION OK to suspend attorney bringing frivolous suit A 30-day suspension was an appropriate sanction for a lawyer who brought a defamation action based on a bar complaint when “consistent and clear case law” held that an absolute privilege attached to complaints made to bar counsel, the District of Columbia Court of Appeals held on Sept. 1. In re Spikes, No. 03-BG-803. Harry Spikes, an attorney licensed in the District of Columbia, filed a defamation action against two attorneys who filed bar complaints against him. A federal district court dismissed the action for failure to state a claim, holding that both the attorneys’ accusations in a judicial proceeding and in the bar complaint were privileged. The District of Columbia Bar Counsel charged Spikes with violating the bar’s professional conduct rules for filing a frivolous lawsuit, and the district’s Board of Professional Responsibility recommended that he be suspended for 30 days. Spikes countered that he alleged four separate publications of the defamatory accusations, and thus, even if the bar complaint were privileged, his suit was not frivolous because the other publications were not privileged. Adopting the board’s recommendation and suspending Spikes for 30 days, the D.C. Court of Appeals held that all of the publications were privileged under “consistent and clear case law,” making Spikes’ suit frivolous. The court said, “Given the consistent and unambiguous state of the law concerning the privileges which attached to the allegedly defamatory statements, had an ‘objective appraisal of merit’ been undertaken here, a reasonable attorney would have easily concluded that the defamation lawsuit was meritless.” TORTS Hosts liable for giving alcohol to 19-year-old A company that provided alcohol to a 19-year-old employee at a Christmas party is liable for the death of a person killed in a drunk-driving accident involving the employee, the South Carolina Supreme Court ruled on Aug. 29. Barnes v. Cohen Dry Wall Inc., No. 26036. Despite a warning from his employer, Cohen Dry Wall Inc., that he would not be served alcohol at the company Christmas party, 19-year-old Orin Feagin was able to drink company-supplied alcohol. Feagin left the party in his car and, on his way home, he was involved in a car accident that killed both Feagin and a passenger in the other car. The passenger’s estate sued Cohen. Finding Cohen 20% at fault and Feagin 80% at fault, the trial court awarded $750,000 to the passenger’s estate. An intermediate appellate court affirmed, ruling that social hosts who knowingly and intentionally serve alcohol to guests who are between 18 and 20 years of age owe a duty to third parties for injuries caused by the guest in an auto-related accident. The South Carolina Supreme Court affirmed. The court extended a prior holding that social hosts may be liable to guests under 21 who suffer alcohol-related injury or death after consuming alcohol provided by the host. The same policy applied here: to protect persons harmed by minors (that is, minors for purposes of the legal drinking age), as well as minors themselves.

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