May 24, 2008
British Film Board Getting Tough On Violence
The British board that rates films is cracking down on violence. The British Board of Film Classification (BBFC) is rating some films that get a US PG-13 much more strictly, meaning that only older teens are allowed to see them in Britain. Read more here.
Time Warner, Time Warner Cable Separating
Time Warner and Time Warner Cable are splitting up. Here's a press release.
Time Warner President and Chief Executive Officer Jeff Bewkes said: "This is the right step for Time Warner and Time Warner Cable stockholders. After the transaction, each company will have greater strategic, financial and operational flexibility and will be better positioned to compete. Separating the two companies also will help their management teams focus on realizing the full potential of the respective businesses and will provide investors with greater choice in how they own this portfolio of assets. We're bullish on Time Warner Cable's prospects, but its strategic goals and capital needs are increasingly different from those of our other businesses."
Mr. Bewkes continued: "Once the transaction is completed, Time Warner will have a streamlined portfolio of leading businesses focused on creating and distributing our branded content across traditional and digital platforms worldwide. Our company will also have increased flexibility in its capital structure. We'll continue to balance investment opportunities against the benefits of returning capital directly to our stockholders, within a disciplined financial framework intended to maintain solid investment-grade credit ratings."
Time Warner Cable President and Chief Executive Officer Glenn Britt said: "Today's announcement marks the next important step in Time Warner Cable's evolution as a stand-alone, public company. In a single transaction we increase our strategic and financial flexibility, simplify our capital structure, enhance the public float and liquidity of our stock and return substantial capital to our stockholders. Importantly, we expect to accomplish all of this while maintaining solid investment-grade credit ratings. Paying a sizeable, one-time dividend is a reflection of our continued confidence in our growth prospects. Our separation from Time Warner also enhances our ability to compete aggressively and perform well in a highly competitive environment by delivering the innovative telecommunications services that our customers need, while making prudent investments to deliver continued value for our stockholders."
The transaction will include the following steps:
- Time Warner exchanges its 12.4% interest in TW NY Cable Holding Inc., a subsidiary of Time Warner Cable, for 80 million newly issued shares of Time Warner Cable's Class A common stock – increasing Time Warner's ownership stake in Time Warner Cable's common stock from 84% to 85.2%;
- Time Warner Cable declares a one-time dividend to all of its stockholders of $10.27 per Time Warner Cable common share – a total of approximately $10.9 billion – payable immediately prior to completion of the separation;
- Time Warner receives $9.25 billion from this dividend;
- Time Warner converts its Time Warner Cable Class B common shares (each Class B common share has the voting power equivalent to 10 Class A common shares) into Time Warner Cable common shares on a one-for-one basis in a recapitalization that results in Time Warner Cable having one class of common stock; and
- Time Warner distributes its entire ownership stake in Time Warner Cable to Time Warner stockholders in a tax-efficient manner. The exact form of the distribution will be determined shortly before the closing of the transaction, based on market conditions.
Time Warner Cable expects to fund the one-time dividend through its existing revolving credit facility and $9 billion from a new, committed two-year bridge term financing from a syndicate of banks. In addition, Time Warner has agreed to provide a commitment for a supplemental two-year term loan of up to $3.5 billion to enable Time Warner Cable to repay the bridge financing at its maturity, in the unlikely event Time Warner Cable has not replaced the bridge financing with long-term financing. At the completion of the transaction, Time Warner and Time Warner Cable both expect to have solid investment-grade credit ratings.
The transaction is contingent on a favorable IRS ruling on its tax treatment as well as customary regulatory reviews and local franchise approvals. The transaction is expected to close in the fourth quarter.
The Time Warner Cable board of directors approved the transactions following a unanimous recommendation by the members of the Special Committee of Independent Directors that was formed for the purpose of reviewing, considering, evaluating and participating in the negotiations concerning the transactions.
Citigroup Global Markets Inc. and Goldman, Sachs & Co. are serving as lead financial advisers to Time Warner. Cravath, Swaine & Moore LLP is serving as legal adviser to Time Warner. Additionally, BNP Paribas Securities Corp., Banc of America Securities LLC, Deutsche Bank Securities Inc. and Wachovia Capital Markets, LLC are providing financial advice to the management of Time Warner. Morgan Stanley & Co. Incorporated is serving as financial adviser to Time Warner Cable, and Evercore Group L.L.C. is serving as financial adviser to the Special Committee of Time Warner Cable's board of directors. Paul, Weiss, Rifkind, Wharton & Garrison LLP is serving as legal adviser to Time Warner Cable, and Skadden, Arps, Slate, Meagher & Flom LLP is serving as legal adviser to the Special Committee.
Read more here.
FCC Considering Caps, Pro-Rating On Cell Phone Fees
Cell phone users may see a silver lining under a new plan being floated by some cell phone companies and being considered by the FCC. Under it, consumers might be allowed to cancel their new contracts within 30 days, and cell phone companies might pro-rate fees throughout the length of the contracts if cell phone customers want to switch to other companies. Read more here.
The Uses of Legal History
Samuel J. Levine, Pepperdine University School of Law, has published "Lost in Translation: The Strange Journey of an Anti-Semitic Fabrication, from a Late Nineteenth Century American Russian Newspaper to an Irish Legal Journal to a Leading Twentieth Century American Criminal Law Textbook," at 29 Dublin University Law Journal 260 (2007). Here is the abstract.
Levine introduces and explores an apocryphal and anti-Semitic story which originally appeared in an 1879 issue of the Russian Courier, a social and political newspaper published in Moscow. It was subsequently published in an 1882 issue of the Irish Law Times and later quoted in several editions of Albert J Harno's Cases and Other Materials on Criminal Law and Procedure. The story allegedly occurred in Littowk on the Russian frontier. It involves a son who hires a peasant to kill his father. The peasant gets cold feet and tells the father of the plot. They go to the local rabbi, Joseph Beer, who suggests that they set up a trial for the son and have the father speak to him from beyond the grave. When the son hears his father's voice, he is seized with terror and falls down dead. The Procurator of the province orders that the rabbi and all others involved be arrested. The rabbi in the story is identified as the prominent European scholar and communal leader, Joseph Baer Soloveitchik. Levine traces the evolution of the story into English through its unusual appearance in the Irish Law Times. Levine then examines the surprising and disconcerting presence of the story in successive editions of Harno's textbook, published in 1933, 1939, 1950, and 1957. Levine concludes that, among other lessons, Harno's publication of the story may serve as a cautionary tale, illustrating the potential perils of the increasing contemporary reliance upon sources, such as foreign materials and internet websites, that are often not readily susceptible to authentication and verification.
Download the article from SSRN here.
ICTY Releases Journalist Pending Trial
The International Criminal Tribunal for the Former Yugoslavia has ruled that Baton Haxhiu, a journalist being tried for alleged criminal contempt of court, may be released pending that trial. He is alleged to have released the name of a protected witness involved in the trial of Ramush Haradinaj. Mr. Haxhiu was arrested on May 20. Read more here. Read the ICTY's ruling here.
May 23, 2008
Judge Grants Do-Over In DMX Defamation Case
Judge Thomas Smith has vacated a million and a half dollar defamation judgment against rapper DMX (Earl Simmons) because he was not properly served. The judge was persuaded that Mr. Simmons failed to appear at the January hearing at which plaintiff Monique Wayne presented her case against him for good cause; he was unaware of the dispute. It's unclear if Ms. Wayne will refile. Read more here.
May 21, 2008
French Court Unfreezes Russian News Agency's Bank Account
A French court has restored a Russian news agency's access to its bank account and ordered a Swiss company to pay 15,000 euros in compensation. Ruling that the news agency RIA Novosti is not responsible for the Russian government's debts, the court told the Swiss company Noga that it could not pursue RIA Novosti for repayment of the amounts that Noga is due under contracts secured in the 1990s. Read more here.
May 19, 2008
Domain Name Disputes and the Right of Publicity
Jacqueline Lipton, Case Western Reserve Law School, has published "Celebrity in Cyberspace: A Personality Rights Paradigm for Personal Domain Name Disputes," forthcoming in the Washington & Lee Law Review. Here is the abstract.
When the Oscar-winning actress, Julia Roberts, fought for control of the
domain name, what was her aim? Did she want to reap economic benefits from the name? Probably not, as she has not used the name since it was transferred to her. Or did she want to prevent others from using it on either an unjust enrichment or a privacy basis? Was she, in fact, protecting a trademark interest in her name? Personal domain name disputes, particularly those in the space, implicate unique aspects of an individual's persona in cyberspace. Nevertheless, most of the legal rules developed for these disputes are based on trademark law. Although a number of individuals have successfully used these rules in practice, the focus on trademark law has led to inconsistent and often arbitrary results. Additionally, commentators have questioned recent expansions of trademark law in the Internet context. This Article suggests that if personal names merit legal protection in cyberspace, it should be under an appropriate set of legal rules, rather than through further expansion of trademarks. This Article develops a new framework for personal domain name disputes based on the theories underlying the right of publicity tort. Unlike trademark law, this tort is aimed at the protection of individual names and likenesses. It has not been utilized much in cyberspace largely because of time, cost, and jurisdictional disadvantages of litigation as opposed to the quicker and cheaper, but trademark-based, Uniform Domain Name Dispute Resolution Policy ("UDRP"). This article suggests the creation of a new personal domain name dispute resolution policy ("PDRP") that combines the procedural advantages of the UDRP with the theory underlying the right of publicity tort.
Download the article from SSRN here.
Utah Supreme Court Rules That Newspaper May Have Access to Investigative Report Under Public Records Law
The Utah Supreme Court has ruled in Deseret News v. Salt Lake County that the newspaper had the right of access to a report which investigated allegations of sexual harassment by the county clerk office's chief deputy. The county attempted to claim that the report was not a public record under the state statute. The Court ruled that the government bore the burden of showing that the report was not presumptively a public record. Said the Court,
District courts review record denials under GRAMA de novo....In the course of conducting its review of the disputed record, a court may consider and weigh interests and public policies bearing on whether the record should be disclosed. The newspaper and the County filed cross-motions for summary judgment on the issue of whether the report was properly classified under GRAMA. Although the County contended that the district court could affirm the County's classification decision as a matter of law, it argued that the weighing of interests and public policy to be undertaken by the court was a fact-intensive task beyond the reach of summary judgment. After conducting an in camera review of the report, the district court agreed with the County and issued a memorandum decision ruling that the County had properly classified the report and deferred its weighing of interests and public policy until it could gather facts. The newspaper appealed.
The Legislature enacted GRAMA to advance the cause of governmental transparency and accountability. When it explained why GRAMA was necessary, the Legislature expressed the view that both the right of access to information concerning the conduct of the public's business and the right of individual privacy concerning personal information acquired by governmental entities were entitled to constitutional protection....Although both of these interests deserve constitutional dignity, they do not enjoy an altogether harmonious relationship. The provisions of GRAMA provide a rational framework for mediating the conflicts between these interests.
In addition to citing constitutional reasons for enacting GRAMA, the Legislature noted that the public policy of this state required that access to certain forms of information be restricted....The Legislature's commitment to governmental transparency is reflected in GRAMA's declaration that "[a] record is public unless otherwise expressly provided by statute." Moreover, although GRAMA contains a lengthy roster of records that are presumptively public,... the statute cautions that this list "is not exhaustive and should not be used to limit access to records....
Although GRAMA does not classify sexual harassment investigative reports, the County's personnel policy relating to sexual harassment classifies them as "protected." Salt Lake County Personnel Policy & Procedure, 5730 Sexual Harassment 4.3.1 (2004). This categorical classification created by county policy, while permitted by GRAMA under Utah Code section 63-2-306(2) (2004), does not endow a specific report with a presumption that it should be withheld if requested. Unlike a governmental entity's classification of a type of record containing information expressly classified by GRAMA, the County's classification of sexual harassment investigative reports represents, at most, a prediction of how a particular investigative report would be treated if a request were made to make it public. When the County defended its denial of the newspaper's request for access to the report, it was not so much defending its decision on the Floros report as it was defending its classification policy for all sexual harassment reports. Thus, when the County cited the GRAMA provision exempting from disclosure a record that "constitutes a clearly unwarranted invasion of personal privacy" as a ground for denying the newspaper's request, it was claiming that all investigative reports of sexual harassment complaints qualify for this exemption. When the County contended that no one, not even those empowered to rule on the newspaper's appeals, should see the contents of the report, it confirmed that as far as it was concerned, its advance classification of sexual harassment investigative reports rendered unnecessary any additional GRAMA review. Faced with a GRAMA request for a particular sexual harassment report, the County could not deny access based solely on its advance categorical classification. Instead, GRAMA required the County to examine and evaluate the GRAMA status of the Floros report in the context of the interests relevant to its content alone. Thus, while some sexual harassment investigations may not have stirred suspicions of efforts to shield partisan public officials from scrutiny, the Floros investigation did, and justifiably so. The County's reluctance to disclose the contents of the report to the Council merely reinforced this perception. By protesting any disclosure, however, the County was asserting that the contents of the Floros report were irrelevant to assessing the correctness of the County's classification. Only the merits of classifying all sexual harassment investigative reports as "protected" mattered. We take issue with this position as being incompatible with GRAMA....GRAMA does not permit the County to defend its denial of access with this simple syllogism: the County reasonably classified all sexual harassment investigative reports "protected"; the Floros investigative report concerned an allegation of sexual harassment; therefore the report is "protected."
GRAMA classifies private records into two categories. The first acquires its status by virtue of its inherently personal nature; for example, a record pertaining to medical treatment or eligibility for social welfare benefits. Utah Code Ann. § 63-2-302(1)(a) (Supp. 2007). This category is not at issue here.
The second private record category, the one in which the County seeks to place the Floros investigative report, includes "other records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy."...
As we observed above, the content of an investigative report of a sexual harassment allegation could by its nature be expected to invade privacy. It is also possible that considerations of public interest might push aside concerns over even the most intimate, embarrassing, and humiliating episodes of human sexual behavior. GRAMA's private and protected classification of records that "constitute a clearly unwarranted invasion of personal privacy" does not sanction denying access to a record merely because it invades personal privacy. To qualify for nonpublic classification a record must not only invade personal privacy, it must do so in a "clearly unwarranted" manner.
Many factors may contribute to a determination of whether an invasion of personal privacy is warranted. These include the central consideration here: whether elected public officials failed to respond properly to sexual harassment that might, without the presence of possible administrative misconduct, meet the standard of "clearly unwarranted invasion of personal privacy."...The County argues that it properly classified the investigative report as private under section 63-2-302(2)(d) because, as a matter of law, its disclosure would unnecessarily invade the privacy interests of the alleged victim, the alleged perpetrator, and other persons participating in the investigation. We disagree.
Thirteen of the sixteen people who were interviewed for the investigative report were never identified by name or job description. The investigators referred to these individuals exclusively by aliases, a precaution that substantially diminishes the risk of invading the personal privacy of third-party witnesses.
We are aware, as the County suggests, that it could be possible for a dedicated and enterprising person to derive the identities of one or more witnesses regardless of the precautions taken to preserve their anonymity. We also note that a breach in confidentiality might expose witnesses to unwanted attention. We even concede that it might be conceivable, but only remotely so, that the unintended disclosure of the identity of witnesses in the investigation of Mr. Floros might give pause to those who may be sought out for information in future investigations.
We conclude, however, that these hypothetical, untoward events are too improbable to merit assigning them weight on the side of the scales favoring withholding the report. Indeed, as the newspaper indicated in its argument to the district court, the record contains "no evidence to show that if the report is released that people in the office or in the public or anyone will be able to connect the dots and figure out who these people are." The newspaper further indicated that the County "couldn't figure out who the employees were that are being talked about under the alias[es]" in documents submitted to the district court. This endorsement of the effectiveness of the precautions undertaken by the investigators to preserve the anonymity of witnesses would likely inspire the confidence of those called upon to be witnesses in future investigations.
Read the ruling here.
The Police and the Press
Journalist Nigel Green discusses why police and reporters are so often at odds over getting the information about crime out to the public.
May 18, 2008
Missouri Legislature Passes New Law Making Cyber Harassment a Crime
The Missouri Legislature has passed a law making cyber harassment illegal. The legislation now goes to the governor for his approval. The measure is a response to the case of Megan Meier, the thirteen year old who committed suicide over emails she received from "Josh Evans," an imaginary boyfriend alleged to have been created by a neighbor and her employee. The neighbor, Lori Drew, has now been indicted by a federal grand jury in California. Here's a link to the bill summary.
Unintended Consequences, Fallout May Result From MySpace Prosecution
Reactions to the indictment of Lori Drew in the MySpace suicide case suggest that such a theory of the case may have unintended consequences. Some commentators say that signing up with a false name for services like those that MySpace offers violates the terms of service, and point out that people may do this routinely with what they think are legitimate reasons. Read more here in an MSNBC story.