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Tuesday, November 23, 2010

Happy Thanksgiving!

Das Team der International Practice Group von Byrne, Davis & Hicks, P.C. wünscht Ihnen ein Happy Thanksgiving!

Thanksgiving, das amerikanische Erntedankfest, wird immer am vierten Donnerstag im November gefeiert. Viele Amerikaner nehmen sich auch den darauffolgenden Freitag frei und fahren für dieses lange Wochenende oft sehr weite Strecken um zu Hause bei Familie und Freunden zu feiern.

Thanksgiving Day spielt in Amerika eine besonders große Rolle, weil man ihn bis in die Zeit der Pilgerväter zurückverfolgt. Nach einem ersten harten Winter in der Neuen Welt, in dem etwa die Hälfte von ihnen starb, wandten sie sich hilfesuchend an die benachbarten Indianerstämme, die ihnen zeigten wie man Mais und andere einheimische Pflanzen anbaut. Die reiche Ernte des nächsten Herbstes veranlasste die Pilgrims ein Erntedankfest zu feiern. Dieses Erntedankfest wurde zu einer amerikanischen Tradition.

Heute noch kommt meist die ganze Familie, einschließlich Großeltern, Tanten, Onkeln, Cousins und erwachsener Kinder zum traditionellen Thanksgiving Essen zusammen. Dabei gibt es meist ähnliche Gerichte wie am ersten Thanksgiving-Fest, nämlich gebratenen Truthahn mit Preiselbeersauce, Süßkartoffeln und pumpkin pie.

Friday, November 19, 2010

Wal-Mart Settles Wage and Hour Class Action for $86 Million

OAKLAND, Calif., Nov. 9, 2010 -- The United States District Court for the Northern District of California, Judge Saundra B. Armstrong, has granted final approval to the settlement of a wage and hour class action suit against Wal-Mart in California.

The settlement, which provides for a payment of between $43 million and $86 million (including claims, costs, and attorneys' fees), concludes more than four years of litigation concerning the payment of wages to California associates. In addition, as part of the settlement, Wal-Mart has agreed to continue to maintain electronic systems that will protect the rights of workers.

For more information, please click here.

Complaints About Changed Pat-Downs at Airports

As previous reported on our blog, the Transportation Security Administration (TSA) has changed the way it manually searches passengers. In the three weeks since the TSA began more aggressive pat-downs of passengers at airport security checkpoints, traveler complaints have poured in.

As reported in today's NY Times, some offer graphic accounts of genital contact, others tell of agents gawking or making inappropriate comments, and many express a general sense of powerlessness and humiliation. In general passengers are saying they are surprised by the intimacy of a physical search usually reserved for police encounters.

The agency has so far responded to the complaints by calling for cooperation and patience from passengers, citing polls showing broad support for the full-body scanning machines. Still, it remains to be seen whether travelers approve of the pat-downs, especially as millions more people experience them for the first time during the holiday travel season.

Critics also question whether the pat-downs will survive legal scrutiny. On Tuesday, two pilots filed a lawsuit against the Department of Homeland Security and the Transportation Security Administration, claiming that the new screening procedures violate Fourth Amendment rights against unreasonable search and seizure. But legal experts are divided over whether the courts will find the searches reasonable.

“For Fourth Amendment purposes, you can’t touch somebody like this unless you’re checking them into a jail or you’ve got reasonable suspicion that they’ve got a gun,” said John Wesley Hall, a criminal defense lawyer who specializes in search and seizure law. “Here there is no reasonable suspicion,” he said. “It’s the pure act of getting on a plane.”

But Orin S. Kerr, a law professor at George Washington University, said the courts had generally supported the government’s claims in cases involving airport screening, although new cases would have to balance the more invasive nature of current search procedures with the government’s security needs. “Reasonableness is a murky standard, so there’s room for a new legal challenge,” Professor Kerr said. “But the tenor of earlier cases is pretty deferential to the government.”

The Electronic Privacy Information Center has also filed suit against the Department of Homeland Security, arguing that the body scanners violate Fourth Amendment protections as well as other federal laws. The group is weighing how to respond to the pat-downs, calling for a stronger response from the government to passenger concerns.

In an effort to give travelers more of a voice, groups including the privacy center, the U.S. Travel Association and the American Civil Liberties Union, are soliciting feedback about passengers’ experiences at airport checkpoints, collectively gathering more than 2,000 reports since the new pat-down policy took effect late last month.

“What I’m hearing is some real inconsistency,” said Kate Hanni, executive director of, which operates a hot line for passenger complaints. “There seems to be a huge variation in how they’re patting people down.”

Representatives from the various groups say reports about security agents’ behavior run the gamut from respectful and apologetic to aggressive and hostile, with male and female passengers seemingly equally bothered by the searches. Disabled travelers, parents traveling with children, victims of sexual assault and people with medical devices or health issues have expressed concerns about how the new policy affects their ability to fly.

An Advance for Google in Germany

Germany -- After months of public opposition, Google Street View went online on Thursday with panoramic images from 20 large German cities, including Berlin, Munich, Hamburg and Frankfurt.

As a result of resistance from politicians and privacy advocates who said that the service violated privacy by providing detailed images of buildings and front yards, more than 244,000 residents — about 3 percent of the households in those cities — requested that their homes be blurred, as Google had offered.

Thursday, November 18, 2010

One Tweet Sends Chinese Woman To Labor Camp For A Year

As previously reported on our blog, in the United States, a Facebook post can get you fired. Well, in China, a tweet can send you to labor camp...

As reported on NPR -- Last month China and Japan were having a diplomatic spat over a chain of uninhabited, but disputed, islands in the East China Sea. Angry Chinese youth were demonstrating against Japan, smashing Japanese goods that kind of thing. Hua Chunhui thought the whole thing was ridiculous and sent a tweet joking that if the protestors really wanted to make a difference, they'd smash the Japanese pavilion at the Expo in Shanghai.

Hua's fiancée, Cheng Jianping, thought it was funny, and re-tweeted it, adding "Charge, angry youth." Ten days later she was detained by police "for disrupting social order" and has now been sent to the Shibali River women's labour camp in Zhengzhou city in Henan Province. Mr. Hua said his fiance had started a hunger strike and he was trying to get her released to undergo her re-education at home.

Cheng, 46, is a human rights advocate and had been arrested before for supporting human rights and democracy advocates in China. Twitter is illegal in China. A person can be sent away for re-education through labor for up to four years with no trial.

Tuesday, November 16, 2010

Reduced Tuition for Illegal Immigrant Students in California

LOS ANGELES — In a unanimous decision, the California Supreme Court ruled Monday that illegal immigrants can be eligible for the same reduced tuition at public colleges and universities as legal residents of the state.

The ruling is the latest in a series of high-profile battles about state immigration policies. In addition to Arizona’s strict new immigration law, which the United States Department of Justice has challenged in court, nine other states have laws similar to California’s, with lawsuits pending in Nebraska and Texas.

Currently, students who attend at least three years of high school in California and graduate are eligible for in-state tuition at public schools, which can save them as much as $12,000 a year compared with students who come from other states. Illegal immigrants remain ineligible for state or federal financial aid.

The California court ruled that the 2001 state law does not conflict with a federal prohibition on education benefits for illegal immigrants based on residency, in part because United States citizens from other states who attend high school in California may also benefit.

In California, Latinos now make up more than half of all students in public schools, according to the State Department of Education, and strong support from Latinos helped Democrats here fare better than they did in most other states in this year’s midterm elections.

Supporters of immigration overhaul hope that legislation that would offer some illegal immigrant students access to federal financial aid and a path toward citizenship will be taken up again in the lame-duck session of Congress that convened Monday.

For the full story, please click here.

For more Immigration Law updates, please visit our website.

Monday, November 15, 2010

For Whistle-Blowers, Expanded Incentives

WASHINGTON — When insider-trading scandals plagued the financial markets in the late 1980s, lawmakers created a bounty program for whistle-blowers, allowing regulators to reward tipsters who uncovered evidence of manipulation.

The effort largely failed, in part because the issue of whether to make a reward payment was left to the discretion of regulators. In 20 years, the program paid out a total of less than $160,000 to a handful of whistle-blowers.

Now, Congress and financial-market regulators are revamping a reward system for whistle-blowers, offering big payouts for tips about a host of securities and commodity law violations, to be doled out from a new $451 million fund.

The potential rewards are huge. Had the law been in effect, anyone who tipped off the Securities and Exchange Commission to the activities in its recent case against Goldman Sachs, for example, could have raked in $55 million to $165 million.

Already, business executives and trade groups are arguing that those lottery-size windfalls, authorized under the sweeping law that overhauled the nation’s financial regulatory system, will make it harder for companies to police themselves and will pit employees in search of a big payday against a company’s effort to make sure it is obeying the law. The new whistle-blower law requires a payment when penalties exceeding $1 million are collected. But the proposed S.E.C. rules, which are now open for public comment and scheduled to be completed in the spring, also exclude a large raft of people from receiving potential awards.

Under the proposal, almost anyone whose job is to ferret out corporate wrongdoing, and people who are themselves involved in a securities-law violation, are exempt.

And while the rewards can be big in the most spectacular cases, supporters of the new law say that experience with other bounty programs shows that most whistle-blowers receive relatively small awards and that their lives are often made miserable as part of the experience. Other government agencies also have ramped up their whistle-blower bounties in recent years.

Part of the incentive for the new financial whistle-blower program was the failure of the S.E.C. to catch some of the most egregious wrongdoing that surfaced after the financial crisis of 2007 and 2008. S.E.C. officials say that since the passage of the Dodd-Frank financial regulatory overhaul, they have noticed an uptick, but not a flood, of new complaints.

The new programs, administered by both the S.E.C. and the Community Futures Trading Commission, require the payment of 10 to 30 percent of the penalty or amount recovered when a whistle-blower’s tips provide the basis for a case involving violations of securities or commodities laws.

In drawing up its rules, the S.E.C. said it wanted to encourage employees to go first to their corporate compliance departments, offering potentially higher rewards for whistle-blowers who did so. The rules also would give employees a 90-day grace period after reporting a misdeed to their company in which to bring the case to the S.E.C. — so that they could preserve their place in the S.E.C.’s whistle-blower priority line.

There is no mandate for a company to let an employee know within 90 days whether it has investigated or resolved a complaint, which could undermine any potential incentive for a tipster to turn first to an employer.

Employees who turned to corporate compliance officers have not always been warmly welcomed, and have often been fired. The Dodd-Frank Act contains protections against retaliation toward whistle-blowers. But Stephen M. Kohn, executive director of the National Whistleblowers Center, said, “many of the companies that are complaining now about these rules have for years argued that going to an internal corporate compliance department is not a legally protected activity.”

The new system has unnerved companies that set up extensive and costly compliance programs in the wake of the Sarbanes-Oxley Act, the legislative response to the accounting scandals of the late 1990s.

“What this does,” said Alice Joe, a senior director of the Center for Capital Markets Competitiveness at the United States Chamber of Commerce, “is circumvent the time and resources that companies put into building up those systems.”

To read the full story, please click here.

Wednesday, November 10, 2010

Company Accused of Firing Over Facebook Post

NY Times - In what labor officials and lawyers view as a ground-breaking case involving workers and social media, the National Labor Relations Board has accused a company of illegally firing an employee after she criticized her supervisor on her Facebook page.

This is the first case in which the labor board has stepped in to argue that workers’ criticisms of their bosses or companies on a social networking site are generally a protected activity and that employers would be violating the law by punishing workers for such statements.

The labor relations board announced last week that it had filed a complaint against an ambulance service, American Medical Response of Connecticut, that fired an emergency medical technician, accusing her, among other things, of violating a policy that bars employees from depicting the company “in any way” on Facebook or other social media sites in which they post pictures of themselves.

Lafe Solomon, the board’s acting general counsel, said, “This is a fairly straightforward case under the National Labor Relations Act — whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions, in this case about their supervisor, and they have a right to do that.”

That Act gives workers a federally protected right to form unions, and it prohibits employers from punishing workers — whether union or nonunion — for discussing working conditions or unionization. The labor board said the company’s Facebook rule was “overly broad” and improperly limited employees’ rights to discuss working conditions among themselves.

Moreover, the board faulted another company policy, one prohibiting employees from making “disparaging” or “discriminatory” “comments when discussing the company or the employee’s superiors” and “co-workers.”

The board’s complaint prompted Morgan, Lewis & Bockius, a law firm with a large labor and employment practice representing hundreds of companies, to send a “lawflash” advisory on Monday to its clients, saying, “All private sector employers should take note,” regardless “of whether their work force is represented by a union.”

The firm added, “Employers should review their Internet and social media policies to determine whether they are susceptible to an allegation that the policy would ‘reasonably tend to chill employees’ ” in the exercise of their rights to discuss wages, working conditions and unionization.

American Medical Response of Connecticut denied the labor board’s allegations, saying they were without merit. “The employee in question was discharged based on multiple, serious complaints about her behavior,” the company said in a statement. “The employee was also held accountable for negative personal attacks against a co-worker posted publicly on Facebook. The company believes that the offensive statements made against the co-workers were not concerted activity protected under federal law.”

The case involves Dawnmarie Souza, who had to prepare a response to a customer’s complaint about her work. Ms. Souza, the board said, was unhappy that her supervisor would not let a representative of the Teamsters, the union representing the company’s workers, help prepare her response.

Ms. Souza then mocked her supervisor on Facebook, using several vulgarities to ridicule him, according to Jonathan Kreisberg, director of the board’s Hartford office, which filed the complaint. He also said she had written, “love how the company allows a 17 to become a supervisor” — 17 is the company’s lingo for a psychiatric patient.

The labor board said that her comments “drew supportive responses from her co-workers” and led to further negative comments about the supervisor. Mr. Kreisberg said: “You’re allowed to talk about your supervisor with your co-workers. You’re allowed to communicate the concerns and criticisms you have. The only difference in this case is she did it on Facebook and did it on her own time and her own computer.”

An administrative law judge is scheduled to begin hearing the case on Jan. 25. Marshall B. Babson, a member of the National Labor Relations Board in the 1980s, said a broad company rule that says one cannot make disparaging comments about supervisors is clearly illegal under labor law. But he said an employee’s criticizing a company or supervisor on Facebook was not necessarily protected activity.

“There will arguably be cases where it is not concerted activity,” Mr. Babson said, suggesting that if a worker lashed out in a post against a supervisor but was not communicating with co-workers, that type of comment might not be protected.

If the Facebook conversation involves several co-workers, however, it is far more likely to be viewed as “concerted protected activity,” he said.

But employees might cross the line into unprotected territory if they disparage supervisors over something unrelated to work — for instance, a supervisor’s sexual performance — or if their statements are disloyal.

Courts often view workers’ statements as disloyal when they are defamatory and are not supported by facts. Mr. Babson cited a case upholding the firing of airline workers who held signs saying their airline was unsafe. But, he said, if employees held signs accurately saying their airline or restaurant had been cited for dozens of safety violations, that would most likely be protected.

For more legal updates, please visit our website.

Justices Hear Case on Taxing of Students

WASHINGTON — “How do you draw the line,” Justice Sonia Sotomayor asked at a Supreme Court argument on Monday, “between a student who is working and a worker who is studying?”

The case concerned medical residents, who work long hours as part of their studies, providing care to hospital patients. They are often paid more than $50,000 a year.

Under a 2005 Treasury Department regulation, residents are subject to Social Security taxes, notwithstanding a statutory exemption for work performed by students who regularly attend classes, as residents do. The regulation says that students who would otherwise qualify for the exemption lose it if they work more than 40 hour per week, even if they learn from what they do.

According to a brief filed by residency programs that are seeking tax refunds, there are about 100,000 residents in 8,000 programs nationwide. According to a government brief, medical residents are subject to about $700 million in Social Security taxes each year.

Theodore B. Olson, a lawyer representing the programs seeking refunds, told the justices that they are fundamentally educational, including “a rigorous core curriculum” with “hundreds of classes, conferences, lectures, laboratory research, written exams, grades and intensive, hands-on clinical patient training under the supervision of faculty members.”

But Matthew D. Roberts, a lawyer for the government, said residents were “workers who are working between 50 and 80 hours a week over many years for substantial salaries” and so “are precisely the kind of workers whose employers should be supporting the Social Security system and who should be earning credit towards disability and survivor benefits.”

The fact that residents may learn something in the process should not be determinative, Mr. Roberts added.

“Many, many individuals pursue their jobs for the primary purpose of learning, like judicial law clerks, like other apprentices,” he said. “But they are not covered by this exemption.”

Justice Ruth Bader Ginsburg responded that the law only allows the exemption to students enrolled and regularly attending classes at schools, colleges and universities.

Mr. Roberts said that helped his case. Since there is no general exemption for wages paid to apprentices, he said, the Treasury Department made a reasonable judgment in interpreting the law so as not to create “a special exemption for apprentices who happen to be employed by schools, colleges and universities.”

The argument in the case, Mayo Foundation v. United States, No. 09-837, also included questions about Supreme Court clinics at law schools, architectural apprentices and work-study programs.

Chief Justice John G. Roberts Jr. said the difficulty of distinguishing among them was a reason to allow the Internal Revenue Service to decide the matter.

“This is basically a very familiar situation of an apprentice who is both an employee and both a student, and to try to draw the line in some categorical way doesn’t make sense,” he said. “The only way you can draw the line is to have somebody say: This is going to be the line. And if anybody is going to say it, it ought to be the I.R.S.”

But Mr. Olson said the particular regulation at issue was arbitrary and counterintuitive. “If you are too much of a student, you are not a student,” he said. “It is backwards.”

Justice Sotomayor, the argument’s most active questioner, said many jobs have an educational component. “Aren’t we learning in every case that we’re hearing?” she asked, referring to the members of the court.

Friday, November 05, 2010

Shift May Push Democrats to Compromise on Tax Cuts

WASHINGTON — President Obama on Wednesday invited Congressional Republican leaders to negotiate about extending the soon-to-expire Bush-era tax cuts, but he stood his ground by arguing against the Republicans’ demand to keep those cuts for income above $250,000.

Yet President Obama’s overture opens the door for extending those top tax rates at least for a year as Republicans play from a strengthened hand in coming weeks.

All the rates expire Dec. 31, a deadline set in 2001 to limit the cost. Extending them for another decade would cost nearly $4 trillion, and more counting the interest on that increase to the federal debt.

Both parties’ strategies are in flux as the election results sink in. But the White House and many Congressional Democrats privately anticipate a compromise that would extend the Bush rates for the middle class for at least five years, and the rates for higher-income individuals for a year or two — in a nod to Republicans’ contention that no one’s taxes should go up until the economy has fully recovered.

The Democrats’ goal is to “de-couple” the tax cuts for middle and high incomes; they argue that if rates for the rich expire first and Republicans move to extend them, they will have a harder time justifying the cost of extending rates that apply to about 2 percent of taxpayers — couples making more than $250,000 a year and individuals earning more than $200,000.

Extending the top rates for 2011 would cost roughly $33 billion; for the decade through 2020, the revenue loss would reach $700 billion.

Republicans continue to insist on a long-term extension for all the tax cuts — as John A. Boehner of Ohio, the Republican in line to become House speaker, reiterated on Wednesday — even as they protest the mounting federal debt.

Some Republicans say they will accept only a deal that extends the tax cuts for the middle class and the wealthy in tandem. And on Wednesday, they were hardly inclined to give ground, having withstood Democrats’ attempts throughout the campaign to portray Republicans as blocking tax cuts for the middle class on behalf of those for the rich.

The Bush tax cuts are one of several pressing fiscal issues that President Obama and Congress must address before year’s end. Others are overdue appropriations for the government’s operations, expiring tax breaks for individuals and businesses, action to forestall big cuts in reimbursements for doctors who treat Medicare patients and the expiration after November of assistance for an estimated two million Americans who have been unemployed for long periods.

All of those issues are crowding the agenda for what is likely to be a short lame-duck session of Congress at mid-month. It will pose a first test of whether President Obama and Republicans can work together to solve knotty problems, though Democrats will remain in control of the House and Senate for that session.

The full story can be found here.

Aktuelle Informationen zum Thema Steuern finden Sie auch auf unserer Webseite.

E.U. Says It Will Overhaul Privacy Regulations

PARIS — The European Commission called on Thursday for stronger protection of Internet users’ personal information, after news of data leaks at companies like Facebook and Google highlighted concerns about digital privacy.

Viviane Reding, the justice commissioner, announced its intention to overhaul the European Union’s data protection rules to take account of the development of social networking, personalized advertising and other Web services that have raised privacy concerns. The new legislation, set to be introduced next year, would replace rules that date to 1995.

“The protection of personal data is a fundamental right,” Ms. Reding said. “To guarantee this right, we need clear and consistent data protection rules. We also need to bring our laws up to date with the challenges raised by new technologies and globalization.”

The commission said consumers should be informed “in a clear and transparent way” about how their data will be used. They should also have the right to fully delete digital information, like social networking profiles, and should be informed when their data has been used in unlawful ways, the commission added.

Several recent leaks of personal data have highlighted concerns about privacy in the digital realm, which have been more pronounced in some European countries, like Germany, than in the United States.

Google said last month, for example, that it had inadvertently collected information like e-mail messages and passwords when it gathered pictures for its Street View online mapping service; data protection officials in Britain said this week that this represented a “significant breach” of privacy laws, and officials in other countries are investigating.

Facebook, meanwhile, recently acknowledged that some of its social networking applications passed personal information to marketers without the user’s knowledge.

“The commission has planted the flag showing that the consumer’s right to privacy should not be undermined merely because it has become easier and more profitable to break it in the virtual world,” said Monique Goyens, director general of the European Consumers’ Organization, known by its French acronym, BEUC.

But the commission’s announcement was short on specifics — leaving open, for example, the question of whether Internet companies would have to secure consumers’ express permission before using or sharing personal data; currently, technology companies often do this unless consumers specifically forbid them from doing so. Submissions from privacy advocates, technology companies and other interested parties will be considered until Jan. 15, the commission said.

Rules requiring Internet companies to secure users’ consent upfront could hamper the development of services that align online advertising with Web users’ personal interests, as reflected in the Web sites they visit or the preferences they express in social networks and other online forums. From a marketer’s perspective, this could dilute one of the big advantages of the Web over traditional media.

Technology companies have also been calling for an update of E.U. privacy rules, however, saying there are too many different interpretations of existing legislation across the 27-nation bloc. This has hampered efforts to develop so-called cloud computing services, in which personal data sometimes crosses national borders, subjecting Internet companies to different sets of standards.

“It looks like the European Commission is not expecting a major overhaul of the existing data protection rules, but it is right about the need for harmonization,” said Wim Nauwelaerts, a lawyer at Hunton & Williams in Brussels, whose clients include a number of big technology companies.

Thursday, November 04, 2010

Google muss 8.5 Millionen USD zahlen, um den Streit um Google Buzz beizulegen

Am 9. Februar 2010 startete Google den Service Buzz, einen Zusatzdienst, der es Google Mailnutzern ermöglicht Bilder, Videos und Kurznachrichten untereinander auszutauschen.

Im Februar 2011 wurde dann eine Sammelklage gegen Google von Google Benutzern eingereicht. Die Kläger behaupteten, dass Google Buzz insbesondere gegen den Computer Fraud and Abuse Act verstößt. In diesem Gesetz sind insbesondere Vorschriften hinsichtlich Datenschutzes und der Privatsphähre eines Computers enthalten. Google Buzz hatte beim Start des Services sämtliche US-Nutzer des Dienstes Google Mail in den Google Buzz Dienst intergriert und automatisch eine Liste von sogenannten Mitlesern geschaffen. Dadurch war auch für andere Nutzer sichtbar mit welchen Kontakten die häufigste Korrespondenz stattfand.

Um den Rechtsstreit beizulegen hat Google sich nun bereit erklärt einen Betrag von rund 8.5 Millionen USD an verschiedene Datenschutzorganisationen zu bezahlen und hierfür einen Fond zu errichten. Neben dieser Zahlung erhalten die Kläger das Recht, Google auf neu auftretende Mängel hinsichtlich des Datenschutzes hinzuweisen und deren Beseitigung zu verlangen. Abzuwarten bleibt letztlich nur noch, ob das Gericht am 31. Januar 2011 diesem Vergleich zustimmen wird.


Im deutschen Rechtssystem wäre solch eine Sammelklage gar nicht möglich gewesen. Die Sammelklage ist dadurch charakterisiert, dass eine Personenmehrheit gegen einen oder mehrere Beklagte eine einzige Klage erhebt. Das deutsche Rechtssystem gründet sich jedoch auf dem Gedanken, dass Kläger nur derjenige sein kann, der auch in seinen eigenen Rechten möglicherweise verletzt ist.

In den USA hingegen ist eine Sammelklage in der Form möglich, dass eine Person stellvertretend für andere Betroffene als Kläger auftritt, ohne dass es einer Verletzung jedes Einzelnen bedarf. Die Betroffenen müssen lediglich den Nachweis führen, dass sie der betroffenen Personengruppe angehören.

Grundsätzlich ist der einzige Weg im deutschen Zivilprozess mehrere Kläger als Parteien zu haben die sog. Streitgenossenschaft oder die Verbindung einzelner Verfahren. Dabei bleibt aber jeder einzelne Kläger und es handelt sich nur um einen Zusammenschluss einzelner Verfahren. Somit verliert auch keiner der Beteiligten seinen Anspruch auf rechtliches Gehör.

Das im Jahre 2002 in Deutschland eingeführte Unterlassungsklagegesetz enthält zu dem aufgezeigten Grundsatz eine Ausnahme, die sog. Verbandsklage. Diese Verbandsklage ist vergleichbar mit der Sammeklage, jedoch mit weitreichenden Einschränkungen. Hier ist es für Verbraucherverbände möglich eine Klage für mehrere Verbraucher einzureichen. Allerdings steht dem einzelnen Verbraucher nach wie vor nur seine eigene Klagebefugnis zur Verfügung.

Da die Verbandsklage nur in einigen wenigen Rechtsbereichen in Deutschland möglich ist, werden deutsche Kläger sich auch weiterhin auf einzelne Klagen gegen Unternehmen wie Google verlassen müssen oder versuchen einen Verband davon zu überzeugen Klage einzureichen.

Muslim Group to Sue Oklahoma Over Shariah Law Amendment

On Wednesday, November 3, the Council on American-Islamic Relations (CAIR) announced that it plans to file a lawsuit against Oklahoma for passing the "Shariah law amendment."

As explained in our previous blog post, the amendment changed the state constitution so that Oklahoma courts are now forbidden from "considering or using" both international law and Sharia law when making their decisions. CAIR considers the amendment unconstitutional. In a press release, CAIR said it would hold a news conference this Thursday to bring attention to its legal action.

Constitutional scholars say that the way the law singles out a particular religion violates the establishment clause of the First Amendment of the U.S. Constitution, but also point out that Shariah law has never been used in Oklahoma court decisions anyway.

"Many of us who understand the law are scratching our heads this morning, laughing so we don't cry," Rick Tepker of the University of Oklahoma Law School told CNN. "I would like to see Oklahoma politicians explain if this means that the courts can no longer consider the Ten Commandments. Isn't that a precept of another culture and another nation? The result of this is that judges aren't going to know when and how they can look at sources of American law that were international law in origin."

CAIR argues that the law could negatively impact Muslims living in Oklahoma in a variety of ways, from potentially changing how food is labeled to requiring them to remove head scarves for driver's license photos. In addition, CAIR said that the measure has nothing to do with punishments such as stonings, which are often associated with Islamic law.

Oklahoma Voters Approve Ban on Islamic Law

Oklahoma City, Oklahoma (CNN) -- A ban on U.S. courts considering Sharia law passed overwhelmingly in Oklahoma on November 2, the day of the mid-term elections.

The man responsible for getting the issue on the ballot, State Representative Rex Duncan. The Republican argued that the measure "will constitute a pre-emptive strike against Shariah law coming to Oklahoma."

The measure amends the state constitution to forbid "courts from considering or using Sharia Law." It defines Sharia as Islamic law "based on two principal sources, the Koran and the teaching of Mohammed."

The question might seem a befuddling one for a ballot in the heartland, but it stems from a New Jersey legal case in which a Muslim woman went to a family court asking for a restraining order against her spouse claiming he had raped her repeatedly. The judge ruled against her, saying that her husband was abiding by his Muslim beliefs regarding spousal duties. The decision was later overruled by an appellate court, but the case sparked a firestorm.

Duncan secured support for the proposal on the state's Senate side from fellow Republican Anthony Sykes, who co-authored the measure.

"The fact that Sharia law was even considered anywhere in the United States is enough for me" to sign on, Sykes told CNN. "It should scare anyone that any judge in America would consider using that as precedent."

Sykes said his concern was compounded by Supreme Court Justice Elena Kagan's comments during her confirmation hearings in June that she would be willing to consider international law when considering cases before the court.

Saleem Quraishi, president of the American Muslim Association of Oklahoma City who runs the Islamic Center at the Grand Mosque of Oklahoma City, said there are more than 5,000 Muslims in the city. While there are no exact numbers for the Muslim population in the state, it is not among the larger communities, said Ibrahim Hooper of the Council on American-Islamic Relations

"It's just fear mongering; it's nothing," Quraishi told CNN. "What's Sharia law have to do with Oklahoma?"

Some 1,200 Muslims from India, Bangladesh, the Middle East, Africa and elsewhere participate in services at the Islamic Center of Oklahoma City, according to Quraishi The facility, founded by Oklahoma City cardiologist M.A. Shakir, has been open for about two years. Another Islamic center is just two miles away.

Quraishi insists that Islam does not allow for men to mistreat women, and that the New Jersey case involved a "crazy, loony man, unfortunately a Muslim." "That is not Islam," he said.

"Oklahoma, you know, is a very Republican state," Quraishi said. He accused some lawmakers with attempting to instill fear in the heads of constituents in order to drum up votes. "But Oklahomans are not like that. I know most of the Oklahomans. They're very nice people."

As written on the ballot, the measure states it would amend a state constitution section dealing with the state courts, making them "rely on federal and state law when deciding cases, forbidding them "from considering or using international law" and "from considering or using Sharia Law."

The ballot then briefly describes international law, which "deals with the conduct of international organizations and independent nations, such as countries, states and tribes," and Sharia, which is "based on two principal sources, the Koran and the teaching of Mohammed."

"Shall the proposal be approved?" the ballot reads, instructing voters to respond 'yes' if they're for the proposal and 'no' if they're against it.

Former U.S. Speaker of the House Newt Gingrich touched on the issue during a speech to the fifth annual Values Voter Summit in Washington in September.

"I am totally opposed to any effort to impose Sharia on the United States, and we should have a federal law that says under no circumstance, in any jurisdiction in the United States, will Sharia be used in any court to apply to any judgment made about American law," Gingrich said.

Oklahoma's proposed constitutional amendment coincides with heated discussion regarding a 13-story Islamic Center planned for two blocks from the World Trade Center site in New York City.

The state had its own encounter with terrorism in 1995 when the Alfred P. Murrah Federal Building was struck by a bomb. Timothy McVeigh was convicted for the attack, which killed 168 people, including 19 children. McVeigh was not a Muslim.

The activist group Act for America, a self-described issues advocacy organization, recently launched a $45,000 grass-roots campaign in Oklahoma to urge voters to support State Question 755. The group sponsored a one-minute radio ad airing across the state that warns against Sharia.

In the ad, a voice says, "A husband was brutally beating and raping his wife several times a day. Desperate to save her life, this Muslim woman sought a restraining order against him. But the judge ruled against her, saying her husband had not committed a crime."

The commercial then said this case happened not in Saudi Arabia or Iran, but in New Jersey.

"This is just one chilling example of how Islamic Sharia law has begun to penetrate America," the ad continued. "Help us stop Sharia law from coming to Oklahoma." The group is also sponsoring automated phone calls to Oklahoma voters from former CIA director and Oklahoma native James Woolsey.

"We must realize there is a major campaign in Europe to impose Sharia law and Sharia is beginning to be cited in a few U.S courts. It is completely incompatible with our Constitution," says Woolsey, who also says that he is not advocating interference with Muslims practicing their religion.

Despite the publicity, many Oklahomans are unfamiliar with the proposed amendment, which is largely overshadowed by another ballot question proposing that the state annually fund public education to a minimum of the per-student average of neighboring states. Another proposal, Question 751, would make English the official language of Oklahoma.

Those voters who are familiar with the Sharia initiative are largely inclined to vote for it, but few who spoke with CNN were very excited about it.

Diana Anderson, a legal assistant, said she supports the measure.

"I don't know that it would make much difference, but if there is something that comes up that has to do with Islamic law, or treating women that way, I don't want them to be treated badly and I don't want us to have any problem with the way they treat them in court either," Anderson said.

Lawyer Bill Price said he would probably vote for the proposal, but he doesn't feel strongly about it one way or the other.

"I don't think there's much of a chance of Sharia law becoming any kind of law in Oklahoma," said Price. "There are much more important issues."

Sykes admits the notion of Sharia taking precedence in Oklahoma's courts is not looming on voters' minds.

"It's not a problem and we want to keep it that way," he said. "And we hope this state question will have that effect, to make it crystal clear that that's not to be considered in Oklahoma, nor is international law."

Justices Revisit Tax Credits for Religious Schools

WASHINGTON — The Supreme Court on Wednesday returned to a subject that produced a major and closely divided decision eight years ago: how far may the government go in aiding religious schools?

In 2002, in a 5-to-4 ruling, the court upheld a school voucher system in Cleveland that parents used almost exclusively to pay for religious schools.

Four new justices have joined the Court since then, but there was nothing in Wednesday’s arguments to suggest that the issue has become any less polarizing.

The program at issue on Wednesday gives Arizona taxpayers a dollar-for-dollar state tax credit of up to $500 for donations to private “student tuition organizations.” The contributors may not designate their dependents as beneficiaries. The organizations are permitted to limit the scholarships they offer to schools of a given religion, and many do.

The program was challenged by Arizona taxpayers who said it effectively used state money to finance religious education and so violated the First Amendment’s prohibition on the official establishment of religion.

The program was novel and complicated enough that the Court’s decision on the merits might not be particularly consequential. But a threshold question, about whether the challengers have legal standing to sue, could give rise to an important ruling.

As a general matter, plaintiffs who merely object to how the government spends their taxes do not have standing. But the Supreme Court made an exception for religious spending in 1968 in Flast v. Cohen.

Arizona, supported by the Obama administration, said the exception should not apply where tax credits rather than direct government spending were at issue.

“If you placed an electronic tag to track and monitor each cent that the respondent plaintiffs pay in tax, not a cent, not a fraction of a cent, would go in any religious school’s coffers,” said Neal K. Katyal, the acting United States solicitor general.

“Flast recognized a special solicitude for taxpayers when money is taken out of their pocket and used to fund religion against their conscience,” Mr. Katyal said. But that is as far as the exception should go, he said.

That approach, Justice Stephen G. Breyer said, could amount to an end to many challenges to religious spending. “Flast is gone,” he said. “There is nothing more to Flast, because it just happened that nobody had thought of this system at the time of Flast.”

Justice Elena Kagan, who was until recently solicitor general, or S.G., asked whether Mr. Katyal’s position on the standing question meant that the court had been without authority to decide at least six other cases “but somehow nobody on the court recognized that fact, nor did the S.G. recognize that fact?”

Mr. Katyal said it was not unusual for the court to wait to decide a question until it was “teed up and presented to the court.”

Justice Ruth Bader Gins Ruth Bader Ginsburg asked him whether anyone, in light of his position, had standing to challenge the Arizona program.

“The way this scheme is set up,” Mr. Katyal said, “our answer is no.”

Paula S. Bickett, representing Arizona, said the state program did not violate the First Amendment “because it’s a neutral law that results in scholarship programs of private choice.”

But Paul Bender, representing the challengers in the case, Arizona Christian School Tuition Organization v. Winn, No. 09-987, said the dollar-for-dollar nature of the tax credit meant that the scholarship money effectively came from the state.

The difference between the Cleveland voucher system in the 2002 decision, Zelman v. Simmons-Harris, and the Arizona program, Mr. Bender said, was that “religion was not involved in the distribution of the money to the parents.”

The full article can be found here.

Wednesday, November 03, 2010

Die Würfel sind gefallen – Wahlen in den USA

Nach den gestrigen Wahlen, den sog. "mid term elections" in den USA stehen auch in Georgia, North Carolina und anderen Staaten politische Änderungen bevor.

In Georgia:

Ex-Congressabgeordneter Nathan Deal von den Republikanern gewann gegen den Kandidaten und Ex-Governor von Georgia Roy Barnes.

Damit stellt sich die Frage inwieweit Nathan Deal den Staat wirtschaftlich voranbringen will.

Als erstes stehen nach seiner Agenda umfassende Änderungen hinsichtlich des Steuersystems bevor. Hervorzuheben ist, dass diese auch für ausländische Unternehmen von Vorteil sein können. So soll die Körperschaftssteuer für Unternehmen auf 4 Prozent gekürzt werden. Kleinere Unternehmen in der Startphase sollen von der Steuerbelastung sogar ganz befreit werden. Um Georgia für Unternehmen asl Standort hervorzuheben soll daneben die Vermögenssteuer für Unternehmen gestrichen werden.

Als einziger südlicher Bundesstaat wird in Georgia auch das Inventar eines Unternehmens besteuert, nach Nathan Deals Agenda soll auch diese Steuer abgeschafft werden.

Insbesondere für Unternehmen im Bereich der Biotechnologie könnte Georgia und insbesondere Atlanta auch in Zukunft ein lukrativer Standort sein. Dort befinden sich die Centers for Disease Control and Prevention, die auch in Zukunft einen großen weltweiten Einfluss haben werden und die ein potenzieller Kunde für Unternehmen auf dem Gebiet der Biotechnologie darstellen.

Es bleibt abzuwarten inwieweit diese Pläne auch verwirklicht werden, aber derzeit scheint sich Georgia für Unternehmen zu einem immer lukrativeren Standort zu entwickeln.

Wir berichten hier weiter zu anderen Staaten!

Reinhard von Hennigs

Supreme Court Justices Debate Video Game Ban

WASHINGTON — In a lively and sometimes testy Supreme Court argument on Tuesday over a law banning the sale of violent video games to minors, the justices struggled to define how the First Amendment should apply to a new medium.

They tried analogies — to books, films, cartoons, comic books, fairy tales and rap lyrics. They argued about what the drafters of the Bill of Rights would have made of an extremely violent game like Postal 2.

They worried about whether it made sense to extend, for the first time, principles allowing the government to regulate depictions of sex to depictions of violence. They considered conflicting studies on the effects of violent video games on young people.

And they expressed doubt about whether the law at issue, from California, drew sensible distinctions among the games it covered.

The law would impose $1,000 fines on stores that sell violent video games to people under 18. It defined violent games as those “in which the range of options available to a player includes killing, maiming, dismembering or sexually assaulting an image of a human being” in a way that is “patently offensive,” appeals to minors’ “deviant or morbid interests” and lacks “serious literary, artistic, political or scientific value.”

“What’s a deviant violent video game?” asked Justice Antonio Scalia, who was the law’s most vocal opponent on Tuesday. “As opposed to what? A normal violent video game?” “Some of the Grimm’s fairy tales are quite grim,” he added. “Are you going to ban them, too?”

Justice Stephen G. Breyer took the other side. He said common sense should allow the government to help parents protect children from games that include depictions of “gratuitous, painful, excruciating, torturing violence upon small children and women.”

Still, most of the justices seemed to agree that a ruling in favor of the California law would require a novel extension of First Amendment principles to expressions concerning violence.

Justice Elena Kagan, the Court’s newest and youngest member, seemed to be the only justice with even a passing familiarity with the genre under review, even if it was secondhand.

“You think Mortal Kombat is prohibited by this statute?” she asked Mr. Morazzini. It is, she added, “an iconic game which I am sure half the clerks who work for us spent considerable time in their adolescence playing.”

To read more of the Court's debate, please click here.

Monday, November 01, 2010

Airport Pat-Downs Get More Personal

The Transportation Security Administration (TSA) is changing the way it manually searches passengers.

Starting on October 29, 2010, the manual search will involve a slide of the hand compared to the pat down. TSA agents will use the front of their hands in searches, and the new process will include an agent running his or her hand up the inside of a passenger's leg.

Pat downs are used on passengers who opt out of full-body scanner technology, as well as those that set off walk-through metal detectors or are selected for a random search. As of October 22, there are 317 fully-body scanners across the United States. TSA hope to have 450 installed by the end of the year.

For more information on the new TSA pat-down procedure, click here.