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High court ruling is major plus for cutting emissions
Attorney Blogs | 2007/04/04 13:54

California and other states have taken action to reduce carbon dioxide emissions from cars and trucks while the Environmental Protection Agency has looked the other way. A U.S. Supreme Court ruling that the agency no longer can "shirk its environmental responsibilities" is a major move toward a badly needed federal policy to control global warming.
The Bush administration argued that EPA had no authority to control tailpipe emissions under the Clean Air Act, which does not specifically mention carbon dioxide and other greenhouse gases. The court said the agency can "avoid taking further action" only "if it determines that greenhouse gases do not contribute to climate change." That would be a preposterous determination.

The plaintiffs included 12 states, including the three West Coast states, American Samoa, several cities and 13 environmental groups, but not Hawaii. Justice John Paul Stevens, writing for the 5-4 majority, noted that the plaintiffs submitted "uncontested affidavits" that "the rise in sea levels associated with global warming has already harmed and will continue to harm" those areas. "The risk of catastrophic harm, though remote, is nevertheless real."

Nowhere is that potential harm greater than in the Pacific. The world's sea level is projected to rise by as much as 23 inches by 2100, compared with 6 to 9 inches in the past century, the International Panel on Climate Change of the United Nations reported in February. Other estimates are more pessimistic.

Much of Waikiki could be underwater in the not-too-distance future, and the president of Kiribati has notified the United Nations that many of his 100,000 citizens will have to find other quarters when the atolls become unlivable in 50 years.

California has taken the lead with a new law to cut nearly 30 percent of carbon dioxide emissions on cars sold in the state beginning in 2016. A dozen other states have enacted similar laws, and Hawaii's Legislature is nearing approval of a bill aimed at lowering the state's greenhouse gas emissions to 1990 levels by 2020.

The effort to control emissions must be national. The high court ruling means that EPA is allowed to regulate emissions, giving momentum to Congress to eliminate any wiggle room and require that it do so.

That is understood by Rep. John Dingell, a Michigan Democrat who supports the auto industry and is chairman of the House Energy and Commerce Committee. In a prepared statement, Dingell said the ruling "provides another compelling reason why Congress must act, and the president must sign, comprehensive climate change legislation."

US and South Korea in landmark trade deal
Attorney Blogs | 2007/04/03 02:42

Washington and Seoul agreed a landmark deal on Monday that will dramatically liberalise trade between the countries, giving the US an economic foothold in north-east Asia and helping South Korea upgrade its economy. The agreement was the biggest for the US since the North American Free Trade Agreement with Canada and Mexico and would lead to about 95 per cent of tariffs being eliminated within the next three years, negotiators said.

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The deal could trigger a wave of agreements across Asia and is seen as vital to keeping US trade policy alive in the face of growing political discontent over the benefits of free trade.

The accord still has to be ratified by the US Congress and the South Korean national assembly, where it is likely to face difficulties because of the unpopularity of both presidents and their weak representation in their respective houses.

The pact was struck just minutes before the final deadline for George W. Bush, the US president, to notify Congress of his intent to ­ratify the agreement before his authority to "fast track" deals with a simple yes or no vote expires.

Mr Bush sent a letter to the Democratic leadership in Congress within moments of the deal being signed saying the agreement would "further enhance the strong US-Korea partnership, which has served as a force for stability and prosperity in Asia".

There was immediate condemnation from Democrats, led by members of Congress from states that depend on farming and car manufacturing – two sectors that lost out in the negotiations.

Michigan Senator Debbie Stabenow said: "I will do everything in my power to defeat this agreement."

Bill Rhodes, vice-chairman at Citigroup and head of the US Korea Business Council, said that company worries about a watered down agreement had been largely addressed. But Ford, the carmaker, called on Congress to reject the deal as it did not go far enough in tearing down South Korean barriers to vehicle imports.

Under the agreement, tariffs on all vehicles under 3,000cc will be eliminated immediately and phased out over three years for bigger passenger cars and 10 years for pick-up trucks.

Rice was entirely excluded from the deal, in line with Seoul's wishes, while Washington received an undertaking that South Korea would allow the resumption of beef imports, suspended after health scares.

Seoul also agreed to eliminate import tariffs on US beef gradually over the next 15 years, while the US declared it would immediately abolish 61 per cent of tariffs on textiles and garments in terms of its import value.

Significantly, Washington accommodated Seoul's requests to consider development of Kaesong, the South Korean-run industrial zone in North Korea.

About 94 per cent of tariffs on commodities will be scrapped within three years, gradually increasing to 100 per cent.

Another Enron in Europe?
Attorney Blogs | 2007/04/02 02:02

Many European businesses are failing to effectively implement corporate governance codes which is heightening the risk of a serious corporate scandal on the scale of that involving Enron, new research claims.

A poll of Europe's 500 largest publicity listed firms found just 56 percent had the necessary policies in place to protect against ethic and compliance failures, with only 9 percent expecting budgets aimed at addressing the issue to increase.

The worrying figures were despite three-quarters of respondents predicting greater pressure from stakeholders for improved ethics and compliance programs.

The report by Integrity Interactive and the Association of Corporate Counsel (ACC) also found that although 99 percent of companies had a code of conduct or value and principles statement prescribing what staff can or cannot do, only half ensured that all employees were made to read it.

In addition, a quarter of companies confessed to sending their code to selected employees even though 72 percent believed that the entire workforce should be privy to it.

Frederick J. Krebs, ACC president, said: "Companies in the U.S. have spent the last several years ratcheting up their efforts on ethics and compliance but many of their European counterparts still have more work to do.

"For any ethics and compliance program to be effective and successful, it is vital that adequate steps are taken to ensure that all employees understand the policies in place. It is not good enough to have codes of practice buried on an Intranet site where employees have to proactively seek them out.

"Therefore training on codes and policies and the evaluation of levels of understanding of these, play a significant role in protecting a business against scandal and without it many could be heading for trouble."

Oracle's SAP suit raises users' ethics concerns
Attorney Blogs | 2007/03/25 16:44

Oracle filed a lawsuit in U.S. Federal District Court on Thursday against SAP, its SAP America division, its TomorrowNow subsidiary and 50 unnamed individuals Oracle claims were SAP employees. The complaint charges that SAP committed "corporate theft on a grand scale," with one or more staff at

TomorrowNow allegedly pretending to be Oracle customers and illegally hacking into its secure support Web site for users of Oracle's PeopleSoft and JD Edwards applications. SAP then allegedly copied content from the site and used it to offer Oracle customers cut-rate support services in the hopes of eventually migrating them over to SAP's rival applications.

So far, SAP has yet to respond publicly to the accusations, perhaps suggesting that a countersuit could be in the offing. As for Oracle, the vendor hasn't made any additional comment beyond the lawsuit itself.

"If we decide to trust a company, we'd hope it to be justified," said an IT manager at a French company that uses JD Edwards applications and sources its support for that software from TomorrowNow. "When we choose a supplier, we don't necessarily investigate them first," he added. The manager agreed to speak on the condition of anonymity for himself and his company.

While products, services and price are primary factors in procurement decisions, a vendor's ethics and business practices are also extremely important, according to John Matelski, chief security officer and deputy chief information officer for the city of Orlando and a JD Edwards user. He's also the former president of the Quest International Users Group, which focuses on the needs of PeopleSoft and JD Edwards applications customers that Oracle acquired through the January 2005 purchase of PeopleSoft.

"As a public-sector entity, which is directly accountable to its citizens and constituents, I would be concerned about our relationship with any vendor that is proven to conduct business in an unethical manner," Matelski wrote in an e-mail response for comment. He would prefer to do business with companies that can be trusted, and do not have a track record of inappropriate business practices.

"Due to the nature of the relationships that we develop, software vendors and consultants would be held to a higher standard, because they would typically have a greater level of access to our systems and data during implementation and support engagements," Matelski wrote. "The security and privacy of our data is key, and if an organization is known to have illegally obtained data before, I would need to be much more careful when evaluating whether to establish or continue a relationship with them."

David Mitchell, software practice leader at analyst Ovum drew a comparison between the potential damage of the lawsuit with fallout of the corporate spy scandal that hit Hewlett-Packard Co. last year. Despite leading to the resignations of several executives including its chairman, HP weathered the storm well and customers stayed loyal to the company.

"With HP, Hurd responded positively, he apologized," Mitchell said. "It was about the approach they took when something inappropriate had happened. If HP had not responded so positively I think they would have seen more negative consequences."

Should Oracle's charges against SAP be proven, "they need to embrace it and reassure people how it's come about," he added. If there was some wrongdoing, Mitchell, the former senior director for market development at Oracle UK, believes it'll turn out to be the work of one bad apple. "SAP ethically and culturally is a very correct organization, this isn't rotten DNA," he said. "If this turns out to be true, then it will be an individual, I think, who has acted inappropriately."

As for Oracle, the vendor needs to act to avoid any negative publicity from the suit given that it named many customers whose identities were allegedly purloined by SAP and suggested that SAP customers unknowingly might be using services that contain Oracle's intellectual property. "It could be good for Oracle to say, 'We have no beef with the customer, our beef is with SAP,'" Mitchell said. "Or it could be perceived as Oracle picking on the customer."

Andreas Chatziantoniou, a software consultant specializing in Oracle products with Accenture Technology Services in the Netherlands, wondered about another potential negative hit on Oracle.

"From the reputation side, I believe that this can backfire," he wrote in an e-mail. "Oracle has a reputation for dumpster diving in order to get information about competitors," alluding to an incident in 2000 when Oracle defended the actions of detectives it hired to investigate two research groups that supported Microsoft Corp. during its antitrust trial.

The lawsuit might be Oracle's way to gain some extra publicity, following the release earlier this week of the vendor's third-quarter financial results, according to Chatziantoniou. Perhaps a case of "read between the lines: our results could have been much better when SAP would play by the rules," he suggested.

The lawsuit alone won't deter customers from buying SAP's applications, but the noise around the legal action might give both SAP and Oracle users the sense that the firms are distracted and not fully focused on customers' needs, he added.

Now isn't the time for either Oracle or SAP to lose focus, given the competitive threat they face.

Last week, Microsoft, which has tended to focus more on the small to midsize business market with its Dynamics applications, vowed to compete more aggressively in the enterprise market against Oracle and SAP.

Another issue that should give vendors pause is that customers have long memories when it comes to scandals, Chatziantoniou wrote. "Even years later, people (the decision makers) remember the 'bad publicity,'" he added. What might suit the vendors' customers and partners is an out-of-court settlement, he concluded.

"So far such a situation has never happened to me in my business life, but if it did I would consider the fact very heavily when doing business with such a company," Manfred Reif, a managing director at HSH Nordbank, a credit investment bank in Luxembourg, wrote in an e-mail response to comment on the lawsuit. "Nevertheless, first of all being suspicious and 'listening' to your gut feeling should be one's daily duty," he added.

Another factor to bear in mind is the number of customers Oracle and SAP share, Seth Ravin, CEO and president of Rimini Street ., pointed out. He's a co-founder of TomorrowNow, selling his share of the company to SAP in early 2005 and establishing Rimini Street as a rival supplier of third-party maintenance and support.

While Oracle and SAP compete bitterly in the applications market, plenty of SAP users run their software on Oracle's database and middleware. It's in both vendors' interest to resolve the current dispute rapidly.

"So far, we've only heard one side of the argument," Ravin said, with SAP yet to comment.

Given how closely Oracle and SAP watch each other, he finds it hard to believe that the alleged actions by TomorrowNow were deliberate. "I strongly doubt it," he said, adding that such behavior wouldn't be in anyone's best interests and would likely be quickly discovered. Oracle appears to require users of its customer support database to be "self-policing," he said, in other words, they have access to more content than their specific needs warrant, which may have led to some confusion about what was OK for SAP to access and what wasn't.

Court Snuffs Internet Smut Law
Attorney Blogs | 2007/03/23 16:45

Nearly nine years after Congress passed the Child Online Protection Act (COPA), a Philadelphia federal court judge ruled Thursday that COPA is unconstitutional. As a result of his findings, Philadelphia Judge Lowell Reed issued a permanent injunction against enforcing the controversial, though never enforced, law.

Reed ruled that the American Civil Liberties Union's (ACLU) arguments against COPA, "true, reliable and credible and I accept those facts" and determined COPA violated the First Amendment's right to free speech.

Reed said that Attorney General Alberto Gonzales failed to "meet his burden of showing that COPA is the "least restrictive, most effective" alternative in achieving the "compelling [public] interest."

The ACLU filed a suit for permanent injunction relief against enforcing the law a week after Congress passed the measure in 1998. The organization argued that COPA overreached lawmakers' good intentions to protect children from "sexually explicit" material available online. Under COPA, children are defined as anyone under 17-years of age.

As written by Congress and signed by then President Bill Clinton, any commercial Web site operator that made "sexually explicit" material available to minors was, under COPA, subject to criminal and civil sanctions even if the online material was otherwise acknowledged as free speech for adults but deemed "harmful to minors."

COPA provided a safe harbor for Web site owners if they required the use of a credit card or other identification method used to verify age or, significantly, "any other reasonable measures that are feasible under available technology."

The ACLU immediately contended that Internet filtering technology was more feasible than any age verification methods, mitigating, the ACLU claimed, the impact on otherwise protected free speech. By the time the Bush administration inherited the political hot potato, it steadfastly maintained that filtering technology does not work and the threat of jail time and steep fines were the most effective defenses against making sexually explicit material available to minors.

Reed wrote that the ACLU's clients "post content on their Web sites including…resources on sexual health, safer sex, and sexual education; visual art and poetry; resources for gays and lesbians; online magazines and articles; music; and books and information about books that are being offered for sale." No matter Congress' valid interests to protect children, Reed ruled, such free speech restrictions on content stifled legal online free speech.

"I may not turn a blind eye to the law in order to attempt to satisfy my urge to protect this nation's youth by upholding a flawed statute, especially when a more effective and less restrictive alternative is readily available." Reed wrote.

As the case bounced all the way up from the district court to the Supreme Court and back down again, the Bush administration insisted filtering technology is not an effective tool for parents to censor adult content for their children. The ACLU argued otherwise. As the case dragged on for almost a decade, the Department of Justice (DoJ) eventually subpoenaed Google, Yahoo, MSN and AOL for proof child protection filters were ineffective tools against sites with sexually explicit material.

While Google successfully fought the subpoenas, the other search engines turned over evidence that convinced Roberts that "filtering products block both Web pages originating from within the United States and Web pages originating from outside the United States."

That determination, Roberts ruled, sank the DoJ's defense of COPA.

Roberts said that, in addition to their content-filtering features, filters can provide parents with a report indicating which Web sites a child visited, which sites were blocked, the number of e-mails and instant messages a child sent and to whom a child sent e-mail or instant messages.

Roberts further ruled that Internet-filtering technologies offer "money-back guarantees or free trial periods, so that parents can simply download a filtering product for free over the Internet and then use it for a set time period to see if it is something that they want to continue using."

"Based upon the testimony of [ACLU witnesses], which I accept, I find that filters generally block about 95 percent of sexually explicit material," Roberts ruled. He also determined that two separate reports commissioned by Congress, "have confirmed that content filters can be effective at preventing minors from accessing harmful materials online."

The Bush administration has the right to appeal the decision, but the DoJ had not responded to Roberts' decision by press time.

2006 Tax Year Tough on IRS
Attorney Blogs | 2007/03/23 01:57

A new telephone refund, last-minute tax changes and a direct-deposit service made the 2006 tax filing season challenging for the Internal Revenue Service. So said IRS Commissioner Mark Everson, who noted during a Tuesday speech that the agency grappled with implementing the one-time telephone excise tax refund. During an address at the National Press Club in Washington, D.C., Everson added that he was surprised at the low claim rate for the refund, Government Executive magazine reported.

"We think some people may have skipped over it on the form – even with the software, in some instances – just completing the return as they did last year. We've been surprised by that," Everson said.

For this year only, most taxpayers can claim a refund of $30 to $60. The amount depends on the size of your family, for taxes the IRS mistakenly collected on long-distance phone services. So far, 30 percent of tax filers are failing to claim the refund, and half of the taxpayers paid preparers to complete their return, Forbes reported.

On the other hand, the IRS received huge telephone refund claims, allegedly fraudulent, for around $10,000 early in the filing season. "That's a lot of phone usage. Even my teenage kids can't generate that much phone usage," Everson joked. A subsequent crackdown on fraud appears to be effective, he said.

Other challenges for the IRS included extensions of tax breaks that did not become final until the end of December. The agency had to hussle to implement the changes in time for filing deadlines, and incorporate the changes into software programs.

A new direct-deposit service was also difficult: Filers can split their refund and have it sent electronically to different financial institutions. Everson said about 55,000 people took advantage of the service, that’s of 74 million returns processed so far, but he expects it to become more popular.

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