BHL Bogen

BHL Bogen
BridgehouseLaw LLP - Your Business Law Firm

Wednesday, April 27, 2011

Buying a Fake Designer Purse in NYC might soon be a Crime

They are cheap, the look real, and most of us have bought one at some point... A fake designer purse. One of the best known places to get such a knockoff is Chinatown in New York City. Hundreds of vendors offer cheap imitations of pricey designer handbags every day in well-hidden back rooms of tiny stores. But a New York City councilwoman whose district includes the Chinatown neighborhood wants that to change.

According to the ABA Journal, So Margaret Chin is planning to introduce a bill soon that would make it a crime, punishable by a $1,000 fine, to purchase a fake designer bag.

Although the knockoffs clearly violate trademark law, there was little sympathy on the streets for the companies whose brands are misappropriated by the fakes. Instead, women—even among those who hold out themselves for expensive real-deal designer bags—say they think a potential misdemeanor conviction and a $1,000 fine for what at least arguably amounts to participating in a theft is excessive.

However, a Fordham University law professor offered a different perspective. Shoppers in France and Italy can be fined as much as $1,500 for buying knockoff bags, notes Susan Scafidi, the head of the Fashion Law Institute at Fordham. But, contrary to what some irked shoppers are predicting for New York City if Chin's bill passes, tourism has survived.

For more IP Law related updates, please check our website!

Original source: ABA Journal

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Apple Adresses iPhone Data Collection Concern

Recent concerns that Apple is tracking users of its iPhones and iPads, have prompted Apple's chief executive, Steve Jobs, today to respond to the widespread complaints. Along with the announcement of an upcoming mobile software update, Jobs said "the iPhone is not logging your location" and the company has "never transmitted" the precise location of iPhones to itself.

According to CNN, the next version of Apple's iOS will store data about a phone's location for only seven days instead of for months, as was previously the case, the company says. Apple blamed the fact that so much location data had been stored on users' phones and computers on a software "bug."

Many iPhone and iPad users expressed outrage last week when two data researchers uncovered a secret file stored on Apple's mobile devices and on the computers that are synced to those devices via the iTunes program. This file, called "consolidated.db," kept a log of the mobile device's general location going back to June when Apple released a new version of its operating system.

Apple does not have access to individual location data in that file, the company says, but many users were concerned that it even existed. Furthermore, public officials complained that the file was "unencrypted," meaning that, if someone got access to an iPhone or synced computer, they could steal this file with relative ease since it was not password-protected.

Apple downplayed these concerns in its statement.

To read the full story, click here.

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Tuesday, April 26, 2011

GPS Tracking and the Fourth Amendment

The Fourth Amendment of the U.S. Constitution protects against unreasonable governmental searches and seizures. In areas where a person has a reasonable expectation of privacy, a search warrant based on probable cause must be obtained by the government prior to the search.

The interpretation of the Fourth Amendment is the focus of a recent request by the U.S. Justice Department ("DOJ") to the U.S. Supreme Court. The DOJ is asking the Supreme Court to overturn a federal appeals court decision requiring police to get a warrant before attaching a global positioning device to a suspect’s car.

According to the ABA Journal, acting Solicitor General Neal Katyal urged the Supreme Court to grant cert to resolve a circuit split. At issue is whether use of the device is a “search” under the Fourth Amendment and whether a person has an expectation of privacy for his travel in public.
The police used a GPS device to record the movements of accused cocaine dealer Antoine Jones, including his trips to a stash house where police found cocaine and $850,000 in cash. The U.S. Court of Appeals for the D.C. Circuit overturned Jones’ conviction because police did not get a warrant.

The government contends the GPS device can be installed under a 1983 Supreme Court case, United States v. Knotts, which allowed police to install a beeper device in a can of chemical used to make drugs. There is no reasonable expectation of privacy in a person’s movements from one place to another, the government argues in its brief. The D.C. Circuit said the case did not apply because it involved tracking from one place to another, while the GPS was used to track a person’s movements “24 hours a day for 28 days.”

Whether this case will turn into the seminal privacy case of the 21st century remains to be seen. We will keep you posted on our blog and website!

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Dispute over Bratz Dolls Ownership Settled in Favor of MGA

In 2008, El-Segundo-based Mattel Inc., the world’s No. 1 toy maker and owner of the Barbie empire, sued Van-Nuys-based MGA Entertainment Inc., which became well-known when introducing big-headed, pouty dolls named Bratz in 2001, for copyright infringement.

The concept of Bratz was invented by Carter Bryant, a former employee at Mattel. Mattel argued that Bryant came up with the idea for the dolls during his second stint with the company in 1999, but violated his contract by sharing the idea with MGA. Bryant himself assures that he got the idea in 1998 while being on break from Mattel and staying with his parents in Missouri.

Back in 2008, a jury in Riverside, CA decided that Mattel was right in claiming copyright infringement and awarded the toy maker $100 million in damages. This decision was overturned in 2010 by a California appeals court. According to the appellate court, the lower-court judge had erred in ruling that Mattel was entitled to Bryant’s drawings as a matter of law due to the employment agreement it had with him.

The re-trial took place on April 21, 2011 in Santa Ana, CA. It involved the copyright claims as well as accusations from each company that the other one stole trade secrets.

The eight-person jury unanimously rejected Mattel’s claims regarding copyright infringement and ownership rights concerning the Bratz dolls early models or sketches. The jury found that MGA did not steal from Mattel but that Mattel had stolen 26 out of 114 proposed trade secrets from MGA and therefore awarded MGA $88.5 million in damages.

Both sides are set to be back in court at the end of next month. MGA’s lawyers will seek punitive damages of up to two times the amount of the $88.5-million award as well as attorney’s fees. Mattel lawyers, declaring that “this was not the last word in this case,” are expected to appeal the verdict.

Toy analysts, however, warn that both companies already suffered enough damages, in particular Mattel. Mattel spent about $400 million in legal fees on the case in the past seven years and is now sentenced to pay $88,5-million to its rival.

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Mexico Hires New York Law Firm to Sue U.S. Gun Manufacturers

Mexico, being frustrated with U.S. attempts to stop the flow of weapons into Mexico (amounting to 2,000 smuggled guns a day), engaged Reid Collins & Tsai in November 2010 to explore filing civil charges against U.S. gun manufacturers and distributors.

Reid Collins & Tsai, a boutique trial firm, based in New York, practices complex commercial litigation including matters of financial fraud, international money laundering, cross-border issues and professional liability, and may consider a suit based on the Racketeer Influenced and Corrupt Organizations Act (RICO).

Under RICO, a person can be charged with racketeering if he is a member of an enterprise that has committed any two of 35 crimes within a 10-year period. If the court finds someone guilty of racketeering, the convicted can be fined up to $25,000 or receive a prison sentence of up to 20 years. Private persons are also permitted to initiate a lawsuit and can obtain damages triple the amount of actual damages.

A former representative of U.S. gun makers, however, said that he believes that the Protection of Lawful Commerce in Arms Act (PLCAA) will hinder such a claim.

We will keep you posted on how this issue develops!

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Monday, April 25, 2011

North Carolina & Gerrymandering

The word gerrymander appeared for the first time in 1812. Elbridge Gerry was a former governor of Massachusetts. When members of Gerry’s party created an election district which looked like a salamander, both words were combined and soon became to mean “the action of shaping a district to gain political advantage” and/ or “any representative elected from such a district by that method.”

In North Carolina the time has come to tweak the states voting boundaries, a procedure which the U.S. Constitution requires to be taken every ten years in order to assure that citizens in different districts have a right to representation in the legislative branch that is at least approximately equal.

Although Democrats and Republicans have been shifting the boundaries in their favor for more than a century now, the difference this time is that the GOP is in charge and that race will play a serious factor in the redistricting process. This is due to the fact that the Asian population in the State of North Carolina grew by 83%. In Mecklenburg County, it grew by 100%, whereas the Latino population increased by 111%.

Keeping in mind the states past history of lawsuits about how redistricting was done, it can be perceived as quite challenging for the party in charge to modify the election districts in their favor without attracting new lawsuits.

According to the Voting Rights Act and court cases decided under it, it is forbidden to draw districts in a way which could dilute minority voting strength. In fact, it may even be required to draw districts that contain a majority/minority population if three threshold conditions are met:

1) a minority is large and lives closely enough together so that a comparatively compact district of which the group constitutes a majority can be drawn,
2) the minority group has a history of political cohesiveness or voting as a group, and
3) the white majority has a history of voting as a group sufficient to allow it to generally defeat the minority group’s preferred candidate.

The three conditions were established in the U.S. Supreme Court case of Thornburg v. Gingles (1986), a landmark case from North Carolina concerning the Voting Rights Act.

It is also illegal that considerations of race impermissibly dominate the redistricting process. This may occur when non-compact majority/minority districts are drawn so that traditional redistricting principles, like compactness, contiguity, respect for political subdivisions or communities of interest, are substantially ignored. On the other hand, such redistricting may be justified if it addresses the three threshold factors outlined above. See Shaw v. Reno (1993), another U.S. Supreme Court landmark case arising from North Carolina.

However, lawmakers have to take another factor into account when redistricting the states voting boundaries. For the first time in history, more North Carolinians live in cities than in rural regions. In order to assure that citizens’ rights to representation are (about) equal, this factor also needs to be kept in mind.

To accept public comments on the redistricting process for the State House, State Senate and U.S. Congressional districts, the General Assembly will conduct public hearings at sites across the State of North Carolina.

The public hearing for Mecklenburg County will take place at Central Piedmont Community College, CCPCC Central Campus, Richard Hagemeyer Learning Resources Center, Room LR 035 on Saturday, April 30 at 9:30 am.

(c) Picture: North Carolina State Board of Elections

Thursday, April 21, 2011

seeking full-time bilingual Administrative Assistant

Uptown Law Firm seeking full-time bilingual Administrative Assistant

Great opportunity to work with an international firm in Charlotte, North Carolina and work in a multi-lingual environment. Position is Full-Time: Monday-Friday (9:00 am-5:00 pm). This position requires assisting a Senior Partner and other lawyers with day-to-day needs such as writing in German and English, translations, billing, filing, answering phones, updating spreadsheets, working on ad hoc projects and managing databases.

Ideal Candidates will have 1-5 years office experience at a law or accounting firm or other client- based service industry, strong Excel and PC skills and the ability to effectively multi-task.

Must be fluent in German and English and be able to type in both languages (via recorded transcriptions). Candidates must have the ability to speak both languages comfortably and maintain a professional demeanor with clients, both in-person and over the phone.

• Writing letters and emails in German and English
• Translation (often from German to English, but also reverse)
• Billing and WIP/AR review
• Office support and management of office supplies, mail, etc.
• Arranging overseas travel and accommodation
• Drafting of administrative letters, memoranda & general administrative documents
• Research/drafting of firm’s newsletter and website articles, upload and edit articles (in German and/ or English), update subscriber contacts for firm’s newsletter
• Customer Care / Client Management
• Assisting in all other ad hoc office duties

Ideal Candidates:
• Fluent in English AND German (Candidates must demonstrate either native or fluent German language ability, as this is a core component of the position)
• Strong secretarial / administrative experience
• Fully computer literate with very good knowledge of MS Word, Excel, PowerPoint; knowledge of billing and attorney software (for example Quicken, TimeMatters, TimeSlips, Amicus) as well as web-design software (Joombla or other) is a plus
• Good management, organizational and numerical skills
• Hardworking team player
• Excellent Communication skills

Please send application and resume to Byrne, Davis & Hicks, P.C., Attn: Reinhard von Hennigs via email

Wednesday, April 20, 2011

NC - Pros & Cons of Non-Lawyer Owernship of Law Firms

Following up on our March 10 blog post regarding the introduction of a bill in the North Carolina General Assembly that would permit non-lawyer ownership of law firms. The following post explains in more detail the origin of the bill as well as its pros and cons.


In the United Kingdom, the Legal Services Act (effective since 2011) allows lawyers to partner with non-lawyers. The Act constitutes an attempt to sweep aside old historic protections and restrictions allowing lawyers to compete in the legal marketplace like traditional businesses do. The English Legal Services Board foresees alternative business structures that will allow “a greater proportion of individual non-lawyers, as well as external ownership or part ownership of law firms.”

In North Carolina, Fletcher Hartsell Jr., a Republican state senator and lawyer, introduced a bill in the General Assembly on March 8, 2011 that would permit non-attorney ownership of law firms.

Under the proposed bill, non-lawyers can own up to 49 percent of law firms so long as lawyers continue to control the company. Furthermore, stock certificates must state that “no non-licensee shareholders shall interfere with the exercise of professional judgment by licensed attorneys in their representation of clients.” The certificates must also provide that any conflict between the company's duties to its clients and the court versus shareholders will be resolved by giving the duty to the court first priority, followed by the duty to the client.

The current version of North Carolina Rules of Professional Conduct 5.4(d) does not allow such ownership of law firms by non-lawyers:

“A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if:
(1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration; or
(2) a nonlawyer has the right to direct or control the professional judgment of a lawyer.”

A spokesman for the North Carolina State Bar Association told Legal Futures that the bill had just been introduced and the bar “has not had any chance yet to review the proposed bill or adopted any position on [it]."


  1. Non-lawyers can buy up to 49% of a firm, leaving it in control of licensed attorneys.

  2. The language used in the bill is designed to prevent non-lawyers from interfering with the relationship between attorneys and their clients:
    • No interference without the exercise of professional judgment by licensed attorneys.
    • In the case of a dispute the duty of the Court shall prevail over all other duties and the duty to the client shall prevail over the one to shareholders.

  3. “Right now lawyers borrow money at high interest rates from outside investors who hide behind the fig leaf of providing debt financing instead of equity. But debt starts to look a lot like equity as the risk levels escalate. And therefore lawyers facing interest rates of 20% or more encounter enormous pressure to agree to settlements that may shortchange their clients but leave them financially whole.” (Daniel Fisher for Forbes; March 11, 2011)

  4. “Greater access to justice for the public, more flexible business forms, and better and more comprehensive services to clients.” (Deanna Brocker of Brocker Law Firm, P.A., NC; April 7, 2011)

  5. “It might broaden the focus of firm management to include the firm as a whole not just a few individual lawyers who produce big revenues.” (Milton Regan Jr., Professor at Georgetown University Law Center for ABAJournal; August 14, 2007)

  6. “It might take the shine off high-producing laterals whose only connection to the firm is the amount of their year-end distribution.” (Milton Regan Jr., Professor at Georgetown University Law Center for ABAJournal; August 14, 2007)
  1. Concerns that shareholder interests may conflict with a law firm’s primary duty to clients and courts of which they are considered officers.

  2. Rules are still too anachronistic and limited according to Larry Ribstein, Professor at the University of Illinois College of Law and ethics expert.

  3. Professor Milton Regan of Georgetown Law School (who has promoted much of the discussion in the U.S. about Legal Services Act-style reforms) said that even if North Carolina passes the bill, “lawyers in a firm that has offices in other states would be in violation of state laws unless there was structural change.” (Matt Byrne at; March 10, 2011)

  4. “Non-lawyers are not bound by ethics rules, problematic for example in the personal injury field as the bill might serve as an invitation for private “investigators” to troll for clients. The problem could also arise in criminal law, where guarantees of outcome could be sold like commodities. How much does a winning witness cost these days? And what is the price of silence for that poor crime victim?” (Eric Turkewitz on New York Personal Injury Law Blog)

  5. A firm’s duty to its shareholders could lead it to focus blindly on maximizing profits. However, the firm can specify the nature of the duty that it owes to shareholders. (Milton Reagon Jr. for the American Lawyer; August 14, 2007).
For more legal updates, please visit our website!

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Arizona Gov. Vetoes Presidential "Birther" Bill

On Monday, Arizona Governor Jan Brewer vetoed a bill that would have required President Obama and other presidential candidates to prove their U.S. citizenship before their names could appear on the state’s ballot. The bill would have made Arizona the first state to pass such a requirement.

So-called “birthers” claim there’s no proof President Obama was born in the United States, and he is therefore ineligible to be president. But Hawaii officials have certified Obama was born in that state.

The U.S. Constitution requires that presidential candidates be “natural-born” U.S. citizens, be at least 35 years old, and be a resident of the United States for at least 14 years. Opponents questioned whether Arizona’s bill would have added additional requirements.

To read the full story, click here.

For more legal news, please visit our website!

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Tuesday, April 19, 2011

Georgia House Passes Arizona-style Immigration Bill

An Arizona-style immigration bill passed in the Georgia House by a vote of 112 to 59 last Thursday. Following the passage of the controversial bill, Georgia Governor Nathan Deal said he would sign such a bill into law. The passage of such a law would throw Georgia into the center of the national debate over securing the country's borders.

As reported in the Wall Street Journal - The bill would, among other provisions, allow police to check the immigration status of certain suspects and require many businesses to verify that employees are eligible to work in the country.

Supporters say it would help Georgia root out the state's undocumented population—estimated at 425,000 by the Pew Hispanic Center—that they believe competes unfairly with legal workers.

Opposition to the measure has been intense. Business groups argue that it would sully the state's image nationally and discourage employers. They also worry that the employment verification system—requiring employers to check prospective workers' paperwork against a federal database known as E-Verify—would prove costly and burdensome.

Georgia is one of 30 states considering immigration proposals, according to the National Conference of State Legislatures. Others include Oklahoma, Indiana and South Carolina.

As in many other states across the country, Georgia's Hispanic population is experiencing dramatic growth, and that's part of what's driving lawmakers to act, said Debra Sabia, a political-science professor at Georgia Southern University. That population nearly doubled, to 853,000, in the past decade, according to the 2010 census.

Latino and immigrant rights groups are vowing to call for boycotts of the state, just as they did in response to the law passed in Arizona. The measure also faces likely legal challenges. "We believe this is an unconstitutional measure," said Azadeh Shahshahani of the American Civil Liberties Union's Georgia chapter. If it passes, "we will examine all the options," including litigation.

In Georgia, Rep. Matt Ramsey, the author of the immigration bill, says he was careful to avoid some of the more controversial language in Arizona's law.

The Arizona measure requires police to check the immigration status of an individual, detained in a lawful stop, who they have a "reasonable suspicion" may be undocumented.

In Mr. Ramsey's legislation, police may only check the immigration status of suspects who are under investigation for criminal offenses. Moreover, his bill lacks a provision in the Arizona law—one that made it a state crime for non-citizens not to carry their papers—that the judge declared an encroachment on federal authority. "We're very confident from a constitutional standpoint," said Mr. Ramsey.

Read the full article here.

For more Immigration Law news, please visit our website!

(c) Picture: Georgia Secretary of State

Thursday, April 14, 2011

USCIS Continues to Accept FY 2012 H-1B Petitions

U.S. Citizenship and Immigration Services (USCIS) on April 8 announced it continues to accept H-1B nonimmigrant petitions that are subject to the fiscal year (FY) 2012 cap. The agency began accepting these petitions on April 1, 2011.

USCIS is monitoring the number of petitions received that count toward the congressionally mandated annual H-1B cap of 65,000 and the 20,000 U.S. master’s degree or higher cap exemption.

USCIS has received approximately 5,900 H-1B petitions counting toward the 65,000 cap, and approximately 4,500 petitions toward the 20,000 cap exemption for individuals with advanced degrees. U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise. Such workers include scientists, engineers and computer programmers, among others.

USCIS will provide regular updates on the processing of FY 2012 H-1B petitions. These updates and helpful filing information can be found at USCIS’s website highlighting the H-1B program. Should USCIS receive the number of petitions needed to meet the cap, it will issue an update advising the public that the FY 2012 H-1B cap has been met as of a certain date, known as the “final receipt date.”

For more information, please click here.

More Immigration Law news can be found on our website!

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U.S. Researchers Find Radiation from Airport Scanners is Very Low

As previously reported on our blog, the Transportation Security Administration (TSA) announced that it will start publishing radiating results from airport passenger and luggage screening equipment. On Monday, March 28, U.S. researchers announced that airport scanners are an "extremely low" source of radiation exposure. It poses virtually no health risk, not even to frequent air travelers, U.S. researchers said.

According to Reuters, only one type of full-body airport scanner -- the backscatter X-ray machine -- expose individuals to ionizing radiation such as that used in common medical X-rays.

To estimate the risk from these machines, the team divided travelers into three groups: all flyers, frequent fliers and 5-year-old girls who are frequent fliers, because children are more sensitive to the effects of radiation.

They said of the total 750 million flights taken per year by 100 million passengers, there would be an additional six cancers over the course of their lifetimes. That is in addition to the 40 million cancers that would normally develop among people in a group this size.

For frequent fliers, people who fly 60 hours a week, there might be four extra cancers on top of the 600 extra cancers just from flying -- which exposes people to more solar radiation -- and 400,000 cancers that normally would occur over their lifetime.

And for every 2 million 5-year-old girls who travel one round-trip a week, going through the scanners would cause one additional cancer out of the 250,000 breast cancers that are set to occur in this group over their lifetimes.

For the full article, please click here.

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Wednesday, April 13, 2011

ECJ May Limit Rights of Advertisers to Use Names of Rivals as Keywords

Google and other search engine providers offer advertisers the opportunity to purchase advertising keywords corresponding to trademarks, often those owned by their competitors. As a consequence, a user who types in a brand name may be directed to the website of a company that offers competing products.

One of the latest examples in a series of cases concerning search engine advertisement is the lawsuit by Interflora, the flower delivery service, against the British competing florist operation Marks & Spencer.

A search under the word “Interflora” on Google Britain revealed sponsored advertisements for three different websites, among them Marks & Spencer's. In the eyes of Interflora this mislead customers.

In March 2010, the European Court of Justice in Luxembourg (ECJ) ruled in cases brought against Google France by Louis Vuitton Malletier and Viaticum that Google is not liable for selling advertising keywords based on brand names to competitors. However, this ruling may be not of any advantage for Google this time.

The advocate general, Niilo Jääskinen, declared that advertisers should be inhibited from buying rival trademarks as keywords if an average internet user is not (or only with difficulty) able to determine whether the goods or services referred to in the advertisement originate from the trademark owner or from a third party.

Although courts are not obligated by law to adopt the opinion of the advocate general, their opinion is generally followed.

Search advertisements on Google are one of the fastest-growing areas of marketing. The ads generate more than $20 billion a year. The ECJ decision could therefore have a negative effect on Google's turnover.

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Tuesday, April 12, 2011

Department of Homeland Security Travel Redress Inquiry Program (DHS TRIP)

For a traveler who has the feeling that he has been subject to too many additional screenings at transportation hubs, like airports and train stations or U.S. borders, DHS TRIP is the right address.

DHS TRIP offers individuals a platform where they can seek help regarding difficulties they have experienced during their travels. Typical difficulties include being denied or delayed when boarding an airplane and being denied or delayed entry into and/or exit from the U.S.

A common reason for the inconvenience is that the person is mistaken for one on a terrorist watch list due to similarity in names. In such a case, DHS TRIP can be helpful by providing a redress control number which is automatically assigned to the inquirer following his inquiry. The number can help prevent systems from future misidentification.

Due to security and law enforcement issues, however, DHS TRIP does not inform a person whether his name can be found on the watch list.

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Monday, April 11, 2011

United States of America v. State of Arizona Continues

We have continuously reported about Arizona's controversial immigration law. The law included a provision that would require the police to determine the immigration status of a person they have detained and suspect is in the country illegally.

Today, the 9th U.S. Circuit Court of Appeals released a ruling in which it upheld a preliminary injunction against parts of the law that were challenged by the Obama administration.

Reuters -- The 9th U.S. Circuit Court of Appeals ruled that a lower court did not abuse its authority by enjoining key sections of the state law, including the police requirement.

U.S. District Court Judge Susan Bolton blocked the law's most controversial elements shortly before it was due to come into effect last July, arguing that immigration matters are the federal government's responsibility. In addition to the requirement that police check immigration status, Bolton also had blocked a provision requiring immigrants to carry their papers at all times and m
ade it illegal for people without proper documents to solicit for work in public places.

Republican Governor Jan Brewer, who signed the law at the end of April last year, appealed the decision, arguing that the Obama administration had neglected its responsibility, and that Bolton had abused her discretion in blocking parts of the law, an argument dismissed by the appellate court on Monday.

In its opinion the appellate court stated "We hold that the district court did not abuse its discretion" by enjoining two key sections of the law, adding: "Therefore, we affirm the district court's preliminary injunction order enjoining these certain provisions."

For more Immigration Law news and updates, please check our website!

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Practical Tips for CAN-SPAM Act Compliance

Virtually every business in the U.S. uses email to market its products to consumers. The lower costs and almost instantaneous delivery of information are only a couple of the many benefits online communication provides marketers.

However, the ease and efficiency of e-mail marketing also brings drawbacks. Many consumers find unsolicited commercial e-mail messages (spam) annoying and time-consuming. Individual marketers must spend more time and money to create commercial messages that stand out from thousands of others.

In an effort to regulate unsolicited commercial e-mail, Congress enacted the Controlling the Assault of Non-Solicited Pornography and Marketing Act (15 U.S.C. § 7701-13) (CAN-SPAM Act) in 2003. The Act does not flatly prohibit all unsolicited commercial e-mail. Instead, it establishes requirements for commercial messages, gives recipients the right to have you stop emailing them, and spells out tough penalties for violations.

Despite its name, the CAN-SPAM Act doesn’t apply just to bulk email. It covers all commercial messages, which the law defines as “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service,” including email that promotes content on commercial websites. The law makes no exception for business-to-business email. That means all email – for example, a message to former customers announcing a new product line – must comply with the law.

Each separate email in violation of the CAN-SPAM Act is subject to penalties of up to $16,000, so non-compliance can be costly. The main practical tips for CAN-SPAM Act compliance are set out below:

(1) Don’t use false or misleading header information. Your “From,” “To,” “Reply-To,” and routing information – including the originating domain name and email address – must be accurate and identify the person or business who initiated the message.

(2) Don’t use deceptive subject lines. The subject line must accurately reflect the content of the message. The law gives you a lot of leeway in how to do this, but you must disclose clearly and conspicuously that your message is an advertisement.

(3) Tell recipients where you’re located. Your message must include your valid physical postal address (current street address, a post office box, etc.).

(4) Tell recipients how to opt out of receiving future email from you. Your message must include a clear and conspicuous explanation of how the recipient can opt out of getting email from you in the future.

(5) Honor opt-out requests promptly. Any opt-out mechanism you offer must be able to process opt-out requests for at least 30 days after you send your message. You must honor a recipient’s opt-out request within 10 business days.

(6) Monitor what others are doing on your behalf. The law makes clear that even if you hire another company to handle your email marketing, you can’t contract away your legal responsibility to comply with the law. Both the company whose product is promoted in the message and the company that actually sends the message may be held legally responsible.

Note: When sending commercial messages to wireless devices additional requirements must be observed. Also, companies using e-mail as marketing and advertisement tool must insure compliance with other laws addressing marketing and advertising practices.

For more information on CAN-SPAM Act compliance, please click here.

More legal updates and information can be found on our website!

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Friday, April 08, 2011

SC House Judiciary Subcommittee Removes Wire Transfer Fee from Immigration Bill

On Thursday, the attempt by the South Carolina legislator to tax money that illegal immigrants send back home was removed from an immigration bill. Opponents of the section said the fee on out-of-country wire transfers would hurt not only businesses but also students and military families.

The Charlotte Observer reported a House Judiciary subcommittee voted unanimously to delete that section of the bill. It was the panel's first meeting on the measure the Senate passed last month. The subcommittee took no other action on the bill and will likely meet again in three weeks. Senators added the wire transfer fee to the bill during floor debate - $5 to a transfer of less than $500 and a 1 percent fee on higher amounts. They exempted transfers between banks.

To read the full article, please click here.

For more Immigration Law news, visit our website!

(c) Picture: Carlos Porto -

North Carolina Voter ID Law Approved by House Committee

North Carolina has come one step closer to getting a voter ID law. As previously discussed on our blog, Arizona and Georgia already have such laws requiring their residents to present a photo ID to cast a ballot. In North Carolina, House Bill 351 was filed by Republicans late on March 14, 2011. The bill consists of six parts and would require photo identification, or the voter must cast a provisional ballot.

According to the Charlotte Observer, House Republicans pushed a voter identification bill through a committee Wednesday. Republicans say the law will discourage voter fraud. Opponents, on the other hand, claim it could disenfranchise potentially hundreds of thousands of current voters.

The House Election Committee voted along party lines 18-14 for a bill requiring potential voters to show one of eight forms of photo identification. County election boards would begin offering free voter identification cards, although state and federal funds would foot the bill for the card machines. Special ID cards issued by the Division of Motor Vehicles also would be offered for free.

To read the full story, please click here.

For more Immigration Law updates, please visit our website.

(c) Picture: State of North Carolina -

Thursday, April 07, 2011

Supreme Court Grants Stay of Executions - Defendants argue Ineffective Assistance of Counsel and Lethal Drug Choice

For the second time this week the U.S. Supreme Court has stayed an imminent execution by lethal injection. According to an article in the ABA Journal, both men claim ineffective assistance of counsel prevented them from arguing their innocence.

Ineffective assistance of counsel at trial and on direct appeal violates the Sixth Amendment right to a fair trial. No precise definition exists for "ineffective assistance of counsel." Rather, each case must be judged on its own facts.

To prevail on a claim that he received ineffective assistance, a defendant must show that:

(1) counsel's performance was deficient, and
(2) the deficient performance prejudiced the defense (i.e. but for the deficient performance, the result of the proceeding would have been different).

The two death row inmates also contend that a planned new execution drug, pentobarbital, is neither appropriate nor the subject of adequate protocols. Although used to euthanize animals, it reportedly has not been routinely used in human anesthesia for decades.

As previously reported on our blog, sodium thiopental, a drug ordinarily used in executions as part of a lethal drug cocktail, is in short supply in the U.S. The shortage requires states to find alternatives if they are going to apply the death penalty. Problematic, however, is that although pentobarbital is used to euthanize animals, it reportedly has not been routinely used in human anesthesia for decades.

(c) Picture: vichie81 -

Tuesday, April 05, 2011

Federal Insurance Contributions Act (FICA)

The FICA tax, being part of the Internal Revenue Tax code since 1939, is a payroll tax enforced upon employees and employers by the federal government to fund Social Security and Medicare. Social Security benefits old-age as well as survivors and disability insurance, Medicare funds hospital insurance.

In 2005, the employee's share of the Social Security portion of the tax was 6.2% of gross compensation – earnings before any deductions – up to a limit of $90,000.00 of compensation (resulting in a maximum of $5,580.00). This limit, known as the Security Wage Base, goes up annually based on average national wages. In 2010, the employee's share was 6.2% of gross compensation up to a limit of $106,800.00 of compensation (resulting in a maximum of $6,621.00).

The employee's share of the Medicare portion of the tax is 1.45% of wages, not limited by the amount of wages subject to the Medicare tax. The overall FICA Tax then amounts to 7.65%.

The above outlined calculation does not apply for 2011, however, since the Social Security rate for employees, not employers, was reduced to 4.20% leading to a reduction of the FICA tax rate for employees to 5.65%.

Employees who have more than one job or switched jobs during 2011 should also be aware of the possibility that they might have paid too much Social Security tax if their earnings exceeded $106,800 in the years 2009 to 2011. If this is the case, employee's can claim a refund on form 1040 when filing their personal income tax return.

(c) Picture: Arvind Balaraman -

Friday, April 01, 2011

Speeder Driving from State A into State B Can Be Prosecuted in State A

On Wednesday, the Oregon Court of Appeals ruled that a speeder who drove across the Astoria-Megler Bridge from Oregon to Washington State at 121 mph in August 2007 can be prosecuted in Oregon.

The court ruled that Patrick William Weller can be tried in the state of Oregon for reckless driving even though he was in Washington State by the time he got pulled over.

The ABA Journal wrote -- Reversing a Clatsop County judge, the appeals court held that the Astoria police officer who stopped Weller in Washington was not required to take him before a Washington state magistrate to confirm the validity of the arrest in order for Oregon to have the power to prosecute Weller.

Even if the Washington law was violated by the police officer—who acted according to instructions from an Oregon prosecutor he called for advice—dismissal of the criminal case was not an appropriate remedy, the opinion explains.

(c) Picture: Dundee Photographics -