8/21. The U.S. Court of Appeals (9thCir) issued a short order [PDF] in Hepting v. AT&T, a class action against AT&T arising out of AT&T surveillance assistance to the U.S. government.

In June, the Congress enacted, and President Bush signed, HR 6304 [LOC | WW], the "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008".

The bill provides immunity, including retroactive immunity, from civil suits for carriers and other service providers who cooperate, and who cooperated in the past, with government intelligence agencies.

The Court of Appeals wrote that "In light of the FISA Amendments Act of 2008, Pub. L. No. 110-261, we remand this case to the district court. We retain jurisdiction over any further appeals."

See also, story titled "District Court Denies DOJ Motion Dismiss Class Action Against AT&T Regarding Warrantless Surveillance" in TLJ Daily E-Mail Alert No. 1,415, July 21, 2006.

8/12. The U.S. Court of Appeals (9thCir) issued two opinions in cases involving alleged violations of the Americans with Disabilities Act (ADA).

See, August 12, 2008, opinion [25 pages in PDF] in Janke v. Poop Deck, and August 12, 2008, opinion [20 pages in PDF] in D'Lil v. Best Western.

The facts in these cases do not involve information technologies. However, these case illustrate what web site operators, e-commerce businesses, software makers, and consumer electronics makers can expect if, or when, the courts expand the scope of the Americans with Disabilities Act (ADA) to apply to new information technologies.

These two cases also provide further data in support of the proposition that Democratic appointees side with ADA plaintiffs, while Republican appointees side with ADA defendants.

Janke v. Poop Deck. Les Janke is a serial ADA plaintiff. He filed a complaint in U.S. District Court (CDCal) against the Poop Deck, a beer and wine bar, located in Hermosa Beach, California, alleging violation of the ADA.

The parties settled. Janke then moved for attorneys fees.

The District Court denied the motion. It wrote, "Here plaintiff has failed to provide prelitigation notice and has unreasonably protracted litigation by waiting nearly five months to reply to defendants' proposal remedy of the A.D.A. violation. Mr. Frankovich and his firm's abusive litigation tactics have been well documented. The purpose of the A.D.A. is to ensure accessibility to public accommodations for disabled individuals, not to enrich attorneys."

The Court of Appeals reversed.

This case is Les Janke v. Poop Deck, et al., U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 06-55957, an appeal from the U.S. District Court for the Central District of California, D.C. No. CV-04-09741-RSWL, Judge Ronald Lew presiding.

Judge Susan Graber wrote the opinion of the Court of Appeals, in which Judges Marsha Berzon and Claudia Wilken joined. Wilken is a Judge of the U.S. District Court (NDCal) who sat by designation.

D'Lil v. Best Western. D'Lil, who lives in Sacramento, California, is another serial ADA plaintiff.

She filed a complaint in the U.S. District Court (CDCal) against Best Western alleging that a motel in Santa Barbara, California, that she visited was in violation of the ADA. It had a wheelchair accessible room for her, but she complained of specific features of the motel and room.

Best Western reached a settlement with D'Lil. She then moved for attorneys fees. The District Court held that it lacked jurisdiction because D'Lil did not have standing because she failed to provide evidence of her intent to return to the motel.

The District Court noted that in her previous ADA actions she represented that she possessed an intent to return to the premises, but did not in fact return.

The Court of Appeals reversed.

This case is Hollynn D'Lil v. Best Western Encina Lodge & Suites, et al., U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 06-55516, an appeal from the U.S. District Court for the Central District of California, D.C. No. CV-02-09506-DSF, Judge Dale Fisher presiding.

Judge Stephen Reinhardt wrote the opinion of the Court of Appeals, in which Judge Betty Fletcher joined. Judge Pamela Rymer wrote a dissent.

Partisan Patterns in ADA Cases. These two cases, as well as earlier cases, demonstrate a clear pattern. Judges appointed by Democratic Presidents are siding with ADA plaintiffs. Judges appointed by Republican Presidents are siding with ADA defendants.

Although, one might speculate that the divide has less to do with the ADA than with the Democratic party's affiliation with the plaintiffs' trial bar.

In the D'Lil and Janke cases, the two District Court Judges who ruled against an award of attorneys fees to counsel for serial litigants, as well as the one Court of Appeals Judges who dissented, are all appointees of Republican Presidents. Judge Lew was appointed by former President Reagan. Judge Fisher was appointed by the current President Bush. Judge Pam Rymer was appointed former President Reagan. She was for a time considered to be a candidate for appointment to the Supreme Court in any Republican administration.

In contrast, all of the Court of Appeals Judges who voted to reverse were appointed by Democratic Presidents. Judge Susan Graber, Judge Marsha Berzon and Judge Claudia Wilkin were appointed by former President Clinton. Judge Stephen Reinhardt and Judge Betty Fletcher were appointed by former President Carter.

Moreover, the presiding judge in National Federation of the Blind v. Target, D.C. No. C 06-01802 MHP, an ADA case regarding Target's web site, is Judge Marilyn Patel, another Carter appointee. See, September 5, 2006, Memorandum and Order [26 pages in PDF] and October 2, 2007, Memorandum and Order [PDF], denying Target's motion to dismiss, and granting class certification. See also, story titled "District Court Issues Ruling in Case Involving Claim That Web Site Violates the ADA" in TLJ Daily E-Mail Alert No. 1,657, October 18, 2007.

Also, Deval Patrick, who is now the Democratic Governor of Massachusetts, was previously a Clinton appointee in the Department of Justice (DOJ). On September 9, 1996, he sent a DOJ letter which concluded that the ADA applies to the internet.

There is also the matter of the 9th Circuit's November 9, 2007, divided opinion [PDF] in Doran v. 7-Eleven, another ADA case. See, story titled "9th Circuit Rules on Standing and Discovery in ADA Cases" in TLJ Daily E-Mail Alert No. 1,678, November 20, 2007.

Judges Jerome Farris (a Carter appointee) and Judge Ronald Gould (a Clinton appointee) wrote the opinion of the court, which held that the injury in fact requirement for standing is not necessary in ADA cases. Judge Kevin Duffy (a Nixon appointee) dissented.

There are exceptions to this partisan pattern. For example, the October 18, 2002, order dismissing the complaint in Access Now v. Southwest Airlines, D.C. No. 02-21734-CIV, an ADA case involving a web site, was written by Judge Patricia Seitz, a Clinton appointee. She ruled that the ADA does not apply to web sites.

8/20. Rep. Stephanie Jones (D-OH) died. She was a member of the House Ways and Means Committee. See also, statement by President Bush, and statement by Rep. Steny Hoyer (D-MD), the House Majority Leader.

8/20. Nancy Judy, the Federal Trade Commission's (FTC) Director of the Office of Public Affairs, will leave the FTC. Claudia Farrell, who is currently a Senior Public Affairs Specialist, has been named Acting Director. Peter Kaplan, who is currently a reporter with Reuters, has been named Deputy Director. See, FTC release.

8/20. The News York Times, Dow Jones, Washington Post, Computer and Communications Industry Association (CCIA), and others filed a motion to intervene with the U.S. District Court (DDel) in AMD v. Intel, and antitrust case, for the purpose of requesting the unsealing of certain pleadings and court records.

The motion requests "access to non-confidential public records which have been sealed unnecessarily and unjustly withheld from the public". The motion requests that the court make available to the public the parties' preliminary case statements, and transcripts of teleconferences and hearings, subject to redactions.

The motion argues that "sealing has been overly-liberal".

David Finger of the law firm of Finger & Slanina filed the motion. He stated in a release that "The public has a well-established right to observe what is going on in our courts, whether it is a criminal trial or a business dispute. Each in its own way has an important impact on society, and public access promotes confidence that justice is being done fairly".

The motion also requests that "the Court reassign this action to another judge for the limited purpose of deciding this motion".

It argues that "the fact of a lingering judicial vacancy has placed a tremendous burden on the Court. Consequently, the Third Circuit has recently authorized the use of visiting judges from neighboring judicial districts to help relieve the stress. Assigning this case to one of the visiting judges, for the limited purpose of deciding the motion to intervene and unseal would promote prompt resolution of this collateral issue, while allowing this Court to retain control of the underlying controversy."

This case has been assigned to Judge Joseph Farnan, one of three Judges of the District of Delaware. However, four judgeships are authorized. See, list of authorized District Court judgeships.

The Administrative Office of U.S. Courts maintains a list titled "Judicial Emergencies" caused by unfilled vacancies. The District of Delaware is not on this list.

Kent Jordan was confirmed by the Senate to be Judge of the District of Delaware in 2002. However, President Bush later nominated him for the U.S. Court of Appeals  (3rdCir). The Senate confirmed him on December 8, 2006. President Bush did not nominate someone for the District Court vacancy that this created until February 26, 2008, when he nominated Colm Connolly. The Senate has taken no action on this nomination.

Background. AMD filed its complaint [48 pages in PDF] on June 27, 2005. It alleges violation of Section 2 of the Sherman Antitrust Act, Sections 4 and 16 of the Clayton Act, and the California Business and Professions Code.

It alleges that Intel forced major customers to accept exclusive deals, withheld rebates and marketing subsidies as a means of punishing customers who buy more than prescribed quantities of processors from AMD, threatened retaliation against customers doing business with AMD, establishing quotas keeping retailers from selling the computers they want, and forced PC makers to boycott AMD product launches.

See also, story titled "AMD Files Antitrust Complaint Against Intel" in TLJ Daily E-Mail Alert No. 1,165, June 30, 2005. And see, AMD's web page with hyperlinks to pleadings.

This case is Advanced Micro Devices, Inc. and AMD International Sales & Services, Ltd. v. Intel Corporation and Intel Kabushiki Kaisha, consolidated with Phil Paul v. Intel Corporation, U.S. District Court for the District of Delaware, D.C. Nos. C.A. No. 05-441-JJF, C.A. No. 05-485-JJF, and MDL No. 1717-JJF, Judge Joseph Farnan presiding.

The House will not meet. It will return from its August recess on September 8.

The Senate will not meet. It will return from its August recess on September 8. It will hold momentary pro forma sessions until then to prevent President Bush from making recess appointments.

The Supreme Court will return on September 29, 2008. See, October Term 2008 calendar.

1:00 - 5:00 PM. The Department of Health and Human Services' (DHHS) American Health Information Community's (AHIC) Confidentiality, Privacy, & Security Workgroup may meet. See, notice in the Federal Register, July 29, 2008, Vol. 73, No. 146, at Page 43937. AHIC meetings are often noticed, but cancelled. Location: Room 1114, Switzer Building, 330 C St., SW.

The House will not meet.

The Senate will meet momentarily in pro forma session at 10:00 AM.

10:00 AM. The Federal Communications Commission (FCC) has scheduled an event titled "Open Meeting". See, document [PDF] titled in part "Commission Meeting Agenda", and story titled "FCC Revises Schedule for August 22 Event" in TLJ Daily E-Mail Alert No. 1,814, August 18, 2008. Location: FCC, Commission Meeting Room.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its SP 800-121 [43 pages in PDF] titled "Guide to Bluetooth Security (Draft)".

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Second Further Notice of Proposed Rulemaking regarding post-reconfiguration 800 MHz band plans for the Puerto Rico region. See, notice in the Federal Register, July 14, 2008, Vol. 73, No. 135, at Pages 40274-40276.

Deadline to submit comments to the National Science Foundation's (NSF) Subcommittee on Networking and Information Technology Research and Development (NITRD) to assist it in preparing its five year strategic plan for the NITRD program. See, notice in the Federal Register, July 25, 2008, Vol. 73, No. 144, at Pages 43477-43478.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding assignment and administration of ten digit telephone numbers for internet based Telecommunications Relay Services (TRS). This item is FCC 08-151 in CG Docket No. 03-123 and WC Docket No. 05-196. See, notice in the Federal Register, July 18, 2008, Vol. 73, No. 139, at Pages 41307-41311.

No events listed.

No events listed.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to request for comments regarding regarding the treatment under its hearing aid compatibility rules of multi-mode and multi-band handsets and regarding the application of the de minimis exception to those rules. This request is FCC 08-68 in WT Docket No. 07-250. See, notice in the Federal Register, June 12, 2008, Vol. 73, No. 114, at Pages 33324-33326.

5:00 PM. Extended deadline to submit initial comments to the Copyright Office in response to its notice of proposed rulemaking regarding the scope and application of the Section 115 compulsory license to make and distribute phonorecords of a musical work by means of digital phonorecord deliveries. See, original notice in the Federal Register, July 16, 2008, Vol. 73, No. 137, at Pages 40802-40813. See also, extension notice in the Federal Register, August 13, 2008, Vol. 73, No. 157, at Pages 47113-47114.

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