- 50th Anniversary
- Online Edition
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- Donahue Lecture Series
Securities and Exchange Commission (SEC) Rule 10b-5 provides the principal remedy for private investors ensnared in fraudulent securities transactions. A successful pleading of a fraud-on-the-market claim under Rule 10b-5 requires a showing of actual economic loss caused by a fraudulently inflated price of a security purchased by the plaintiff. In Acticon AG v. China North East Petroleum Holdings Ltd., the Court of Appeals for the Second Circuit considered whether a defrauded investor’s unrealized opportunity to sell securities at a profit precludes the ability to prove economic loss under Rule 10b-5’s fraud-on-the-market theory. The Second Circuit held that a recovery in share price after the fraud was disclosed to the purchasers does not automatically defeat an inference of economic loss at the pleading stage. . . .
Among other things, the Computer Fraud and Abuse Act (CFAA) provides for civil and criminal penalties when a person, “intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains information from any protected computer.” Employers have increasingly sought relief under the CFAA against errant employees who download confidential and proprietary information from the employer’s network files for their own benefit or for the benefit of a competitor. In WEC Carolina Energy Solutions LLC v. Miller, the Fourth Circuit Court of Appeals determined whether WEC Carolina Energy Solutions LLC (WEC) could maintain a CFAA claim against former employees and a competitor who allegedly misappropriated WEC’s proprietary information. The Fourth Circuit affirmed the district court’s dismissal of the CFAA claim, holding WEC failed to adequately allege that former employees accessed its confidential and proprietary information “without authorization” or “exceed[ed] authorized access” as required under the statute. . . .
In order to bring a copyright infringement suit before a court, the work must first have been registered with the United States Copyright Office (Copyright Office). In addition to permitting copyright infringement actions, a copyright’s registration “constitute[s] prima facie evidence of the validity of the copyright.” The certificate of registration is usually held valid unless a defendant can prove that the claimant presented inaccurate information to the Copyright Office with the intent to commit fraud. In Rogers v. Better Business Bureau of Metropolitan Houston, Inc., the United States District Court for the Southern District of Texas analyzed whether uploading webpages to the internet constituted “publication” under copyright law, an act that would invalidate a certificate of copyright registration covering an unpublished collection of webpages. Rulings from district courts in other circuits regarding whether uploading a work constitutes publication were examined, but ultimately the Rogers court deviated from the trend of other courts and declined to find the webpages published as a matter of law by deferring to the decisions made by the author and Copyright Office. . . .
Advances in science have revolutionized crime detection, indelibly affecting Fourth Amendment jurisprudence. Forensic identification techniques are continually refined, and accordingly, the concomitant constitutional considerations continue to grow. As technological powers expand the use of deoxyribonucleic acid (DNA) evidence, society must grapple with technology’s effect on individual privacy. DNA identification is not physically invasive; therefore, an innocent person will find it increasingly difficult to demonstrate that his right to remain free from unwanted intrusions into his genetic privacy outweighs the government’s interest in collecting DNA evidence. In Commonwealth v. Draheim, the Massachusetts Supreme Judicial Court (SJC) considered which standard trial courts should use when considering a motion to compel DNA evidence in a criminal matter from someone who is not a suspect, defendant, or witness. The SJC held that a trial court must find probable cause to believe in the commission of a crime and determine whether the search will likely provide evidence that will help prove the defendant’s guilt or innocence.
In Draheim, the Commonwealth alleged that the defendant, Nina Draheim (Draheim), engaged in sexual intercourse with two teenage boys. The Commonwealth sought DNA samples from Draheim, her two children, and the two alleged victims. The test results could scientifically establish paternity, proving that the rapes occurred. . . .
The First Amendment to the United States Constitution embodies one of the country’s founding principles—separation of church and state—by prohibiting Congress from enacting laws that either respect a religious establishment or prohibit the people’s free exercise of religion. Analysis of issues arising under violation of the Establishment Clause consists of numerous, competing tests presented by the Supreme Court. In Doe ex rel. Doe v. Elmbrook School District, the Seventh Circuit considered two such tests and held that an unacceptable amount of religious endorsement and coercion occurred when high school graduation ceremonies were held inside a church. . .
The Sherman Antitrust Act (Sherman Act) prohibits businesses from contracting, combining, and conspiring to restrain trade or commerce. Reverse-payment-patent-settlement agreements between brand-name and generic pharmaceutical companies—whereby a brand-name-patent holder pays its generic competitor to drop a pending patent suit and refrain from producing its generic drug for a definite period of time—are generally subject to antitrust review under the Sherman Act. In In re K-Dur Antitrust Litigation, the Court of Appeals for the Third Circuit considered whether reverse-payment agreements between Schering-Plough Corporation (Schering) and its generic competitors Upsher-Smith Laboratories (Upsher) and ESI Lederle (ESI) amounted to an unreasonable restraint on trade. Parting with other circuits that more recently addressed the issue, the court expressly rejected the common scope-of-the-patent test and held that reverse-payment agreements between a pharmaceutical patent holder and a potential generic competitor constitute a prima facie violation of the Sherman Act’s proscription against unreasonable restraints on trade. . .
When a party to litigation destroys relevant evidence, the judge may issue sanctions under the court’s inherent and statutory authority to punish spoliation of evidence. The adverse inference sanction permits or compels the jury to conclude the destroyed evidence would have harmed the party responsible for its loss. In Bull v. United Parcel Service, Inc., the Court of Appeals for the Third Circuit confronted the issue of whether the production of copies in lieu of original documents constitutes spoliation of evidence, and whether such action warrants the harsh sanction of dismissal, or a lesser sanction such as an adverse inference. The Third Circuit held that Bull spoliated evidence by producing copies in place of originals because the authenticity of such documents cannot be evaluated; dismissal of the plaintiff’s claim, however, was determined too harsh a sanction. . .
Article III of the United States Constitution extends federal judicial power to all cases arising under admiralty and maritime jurisdiction. The Death on the High Seas Act (DOHSA) in turn provides the exclusive, albeit monetarily limited, maritime remedy for wrongful deaths that take place on the “high seas beyond 3 nautical miles from the shore of the United States.” In Helman v. Alcoa Global Fasteners, Inc., the Court of Appeals for the Ninth Circuit considered, as a matter of first impression, whether DOHSA applied to, and thus preempted other available claims arising from, a fatal helicopter accident that occurred approximately nine and a half nautical miles off the California coastline. Finding little interpretive significance in the term “high seas,” the Ninth Circuit held that DOHSA becomes unconditionally operative seaward of three nautical miles from U.S. shores. . .
The Fourth Amendment of the U.S. Constitution and article I, section 10 of the Minnesota Constitution protect an individual’s privacy right from an unreasonable search or seizure. However, courts have upheld the constitutionality of some searches when an individual’s expectation of privacy is outweighed by a legitimate governmental interest. In State v. Johnson, the Supreme Court of Minnesota considered whether a Minnesota statute violated an individual’s right to privacy by authorizing DNA collection from an individual charged with a felony offense but convicted of a misdemeanor arising from the same conduct. The court held that the statute, as applied to the defendant in this case, did not violate the United States or Minnesota constitutional protection against unreasonable searches and seizures. . .
The United States Supreme Court famously held in Miranda v. Arizona that the Fifth Amendment privilege against self-incrimination granted a series of required safeguards, and outlined a way a suspect can invoke his rights. In 2010, the Court revisited this issue in Berghuis v. Thompkins, holding that a suspect simply remaining silent was not enough, but he must “unambiguously” announce his intention to invoke the right to remain silent. In Commonwealth v. Clarke, the Supreme Judicial Court of Massachusetts (SJC) considered Thompkins in determining whether a suspect’s head shaking constituted an unambiguous invocation of the right to remain silent. The SJC held that the defendant’s shaking of his head met the heightened Thompkins standard and also distinguished Thompkins because article XII of the Massachusetts Declaration of Rights did not require “utmost clarity” to invoke the right to remain silent. . .