MoFo drafts Sandy handbook

12/17/12

By Erin Geiger Smith

Individuals still trying to rebuild their lives after Superstorm Sandy swept through the Northeast in October can look to a resource guide published by the law firm Morrison & Foerster.

The handbook details which agencies handle different issues, such as replacing lost income, providing housing assistance and advising what mortgage and foreclosure relief options might be available

The information is both on the firm's website and in hard copy at the New York City Bar Association, in English, Spanish and Chinese. This isn't the first time MoFo has gotten into post-disaster information assistance. It has also drafted handbooks in the wake of wildfires in Southern California, Hurricane Katrina in New Orleans and the attacks on New York and Washington on Sept. 11.

Native American slave lawsuit can go ahead

12/17/12

By Caitlin Tremblay

Descendants of slaves owned by members of the Cherokee Nation can sue the tribe's current chief to try to get back their tribal membership, the Associated Press reports.

The U.S. Court of Appeals for the District of Columbia on Friday overturned a lower court ruling, which had said the case could not proceed because the tribe was not a defendant.

When slavery was abolished in the United States in 1865, black men and women who were enslaved by the Cherokee tribe became Cherokee Freedmen. In an 1866 treaty, former slaves were granted full tribal rights. But in 2007 the Cherokee Nation approved an amendment to its constitution stripping 2,800 descendants of freed slaves of their tribal membership. The amendment said that all tribal citizens must have a Native American ancestor listed on the Dawes Roll, a listing created in 1898 of members of the Cherokee, Choctaw, Creek, Chickasaw and Seminole tribes.

The issue is now in two separate federal courts, one in Washington and the other in Tulsa, Oklahoma, where the case was originally filed. The Obama administration has intervened in the Tulsa case, saying the 1866 treaty should remain in effect for the descendants of those freed slaves.

U.S. files motion to dismiss al-Awlaki lawsuit

12/17/12

By Suhrith Parthasarathy

Lawyers for Defense Secretary Leon Panetta and other U.S. officials have asked a federal court in Washington to dismiss a lawsuit against them over the deaths of three U.S. citizens killed in Yemen by drone strikes last year. The Justice Department, in its motion to dismiss, has argued that the necessity for the strikes and the viability of any alternatives is a question beyond the court's power of judicial review, Politico reports.

The lawsuit, filed in July by relatives of the deceased, alleges that the U.S. strikes violated basic legal guarantees, including the right to due process. According to the lawsuit, in September 2011 Anwar al-Awlaki, a U.S.-born al Qaeda operative, and Samir Khan, a naturalized U.S. citizen who was working for an al Qaeda magazine in Yemen, were both killed by a drone strike. A month later, al-Awlaki's son, a U.S.-born 16-year-old, was a collateral casualty of a strike aimed at an Egyptian named al-Banna.

The Justice Department has now argued that while the executive branch's power to use force against its citizens is governed by due process principles, the courts do not have the power to question how these limits are enforced. The ACLU and the Center for Constitutional Rights, who represent the plaintiffs, issued a statement in response: "The essence of the government's argument is that it has the authority to kill Americans not only in secret, but also without ever having to justify its actions under the Constitution in any courtroom."

United for Netscape, divided over Google

12/17/12

By Erin Geiger Smith

Two lawyers who represented Netscape in its antitrust charges against Microsoft now find themselves on opposite sides of Google's anti-competition battles, The New York Times reports.

As some of you will recall, the federal government filed a landmark lawsuit against Microsoft in 1998. Its investigation into Microsoft got started after two attorneys representing Netscape, Gary Rebak and Susan Creighton, authored a 200-plus-page paper detailing how they believed the software giant was unfairly stifling competition.

Now Rebak of Carr & Ferrell in Silicon Valley, California, represents several companies who feel Google isn't playing fairly and is preventing young companies from flourishing. He said Google's use of its search engine to favor its own online offerings is "an instant replay of the Microsoft case."

But Creighton has an entirely different position. She is a partner at Wilson Sonsini Goodrich & Rosati in Washington, where she represents Google and has testified to Congress that the company "has consistently enhanced consumer welfare by increasing the services available to consumers."

Rebak and Creighton do still have one thing in common -- both are playing a waiting game to see whether the Federal Trade Commission will bring charges against Google for its search practices. Reuters reported last week that the commission is likely to take a little more time to announce conclusions to its investigation, which has now dragged on for more than a year.

Not so privileged

12/17/12

By Erin Geiger Smith

Nearly everyone knows, courtesy of "Law & Order," communications between spouses usually fall within the marital communications privilege. But does that include emails a husband sends his wife from his work computer?

Baker & Hostetler's Discovery Advocate blog highlights a Thursday decision on the question from a three-judge panel of the U.S. 4th Circuit Court of Appeals. The ruling dealt with the case of Philip Hamilton, who was convicted of bribery, based in part on messages he emailed his wife from a computer at a public school where he was a consultant. Hamilton argued that the emails shouldn't have been allowed into evidence.

The 4th Circuit panel disagreed, ruling that the email communications were not privileged because they were stored on a workplace computer and the school's workplace policy stated that employees should have "no expectation of privacy" in the use of their email. The panel cited a 1934 Supreme Court case which ruled the marital privilege did not apply because the husband had a stenographer take down the message to his wife.

On appeal, Hamilton and his amici supporters are likely to say the opinion seems out of date with the modern mailing world, points out the blog's author, Gil Keteltas. Nor is it only husbands and wives who might need to think about a privilege waiver, he says. If a company's outside director checks privileged email from his work computer at his day job, there's a chance it could later be subject to discovery, according to Keteltas.

Summary Judgments for December 14

Summary Judgments for December 13

Summary Judgments for December 12

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