India’s Supreme Court Overturns LPG Bid-rigging Decision

Remington Outdoor Company filed its long awaited bankruptcy petition with the US Bankruptcy Court for Delaware on Sunday. The agreement to do the pre-packaged Chapter 11 filing was reached with creditors in February. In the time following that agreement, Remington entered into a number of “material definitive agreements” with the various creditors. According to Reuters, Cerberus will lose all their ownership rights in the bankruptcy. The equity in the company will now go to the creditors. The creditors inked the debt-cutting deal prior to the Parkland shooting, and it is unclear if any have exited. The restructuring support agreement allows creditors to sell their holdings, but the buyer is bound by the deal. One investor told IFR, a Thomson Reuters news provider, that his firm had contemplated buying the Remington loans that will be exchanged into equity, which were offered at as low as 25 cents on the dollar. “We bowed out because we were uncomfortable,” he said. After a Remington Bushmaster rifle was used in the Sandy Hook elementary school shooting in Connecticut in 2012 that killed 20 children and six adults, Cerberus tried unsuccessfully to sell Remington, then known as Freedom Group. Katie-Mesner Hage, an attorney representing Sandy Hook families in a lawsuit against Remington, said in a prepared statement that she did not expect the gunmaker’s bankruptcy would affect their case. The lawsuit referred to in the last paragraph is now before the Connecticut Supreme Court on appeal. Here is the bankrupt petition listing creditors and the CFO’s statement. Reuters notes that the court action is expected to go quickly and the restructured company could be out of bankruptcy by May.

10. Since this effect of the amendment was not seriously disputed by the counsel appearing for the contesting respondent, I do not consider the need to go into the significance of word “may” or “shall” as argued by Mr. R.S. Cheema, learned Senior counsel appearing for the petitioner. To be fair to him, he has urged that the use of word “may” and “shall” in the same provision would cover two different situations and this provision is discretionary in one situation and mandatory in another. This would not appear to be in much dispute. 12. To ascertain if any enquiry was held or not, a mention to the facts, in brief, would be essential. Petitioner is a Managing Director of M/s Haldia Petrochemicals Limited with the address as 1Auckland Place, Kolkata. Respondent No. 1 has filed a complaint dated 11.5.2004 (Annexure P-1), against him before Judicial Magistrate Ist Class, Faridabad under Sections 323/452/504/506 IPC, which has led to his summoning vide order dated 14.10.2006 (Annexure P-2).

The petitioner is a Managing Director of M/s Haldia Petrochemicals Limited (“HPL” for short) and is working with this concern since 10.8.2001. He was appointed as Chief Executive on 30.4.2002 and has been inducted in the Board of Directors w.e.f. 29.3.2005. HPL has appointed various agents across the country to sell its products. Such agents are to ensure payment to the HPL against the sale of the products to the customers. One IPF Vikram India Ltd. Panchkula, Haryana was appointed as an agent during the year 2000. During the year 2001-2002, IPF supplied certain products of HPL to another company named Himachal Filament Pvt. Ltd. Sirmour (Himachal Pradesh) (“HFPL” for short). HFPL had issued a cheque amounting to Rs. 37,08,115/-through its agent to HPL. This cheque was dishonoured. HPL issued power of attorney in favour of IPF to recover this price of goods supplied by HPFL as an agent of HPL to HFPL.

An application was also given by IPF to the Inspector General of Police, Chandigarh for recovery of dues from HFPL. On 5.8.2002, HFPL was made to pay a sum of Rs. 31.83 lacs before Lok Adalat, U.T. Chandigarh and had agreed to pay a sum of Rs. HFPL did not honour this order passed by Lok Adalat leading to registration of an FIR on 15.11.2002 against respondent No. 1. He was accordingly arrested. Respondent No. 1 filed a civil suit for defamation at Faridabad against the petitioner and one Shri Siddharth Anand of IPF. This suit is stated to have been dismissed in default on 6.2.2006 and application for its restoration is pending. 15. The order summoning the petitioner is annexed on record. Process is issued without holding enquiry or getting the complaint investigated in any manner. Reference has already been made in regard to the nature of enquiry, required to be held under this section to see if prima facie case is made out or not.

In Nagawwa’s case (supra), the Hon’ble Supreme Court has observed that the enquiry envisaged under this section is extremely limited. This is for the limited purpose to find out whether a prima-facie case for issue of process is made out. As already noticed in this case, this is required to be decided purely from the point of view of the complainant without at all adverting to any defence that the accused may have. Similarly in Kewal Krishan’s case (supra), the Hon’ble Supreme Court observed that the Magistrate at this stage is not to weigh the evidence meticulously as if he was a trial court. Rather in this case the Hon’ble Supreme Court has observed the limits of Magistrate’s discretion and infirmity, if he meticulously appreciates the evidence. The Hon’ble Supreme Court declined to interfere by saying that such would only be an irregularity and not illegality leading to any miscarriage of justice. Thus, where the Magistrate was to meticulously appreciate the evidence, it may lead to lapse on his part in overstepping the discretion available to him under this section. 16. Process is issued in this case only on the basis of examination of the complainant and CW-2. This is obviously under Section 200 Cr.P.C. It was done much prior to the date of amendment of Section 202 Cr.P.C. It is seen that no enquiry/investigation is held as is required under Section 202 Cr.P.C. The quashing of the summoning order is sought mainly on the ground that the Magistrate has not held enquiry, which is obligatory. 18. As a result, the present petition is partly accepted. The impugned order summoning the petitioner is set-aside. The case would go back to the Magistrate for deciding the case for issuing process afresh by following the mandatory provisions of law under Section 202 Cr.P.C.

I have written many times before on the concept of flat fees and whether they can be non refundable. See here, here and here, for example. I understand the concern behind some of the decisions but the decisions have not been very clear. 30,000 non-refundable “minimum fee” for his work in a criminal matter. After working on the case for about 26 billable hours he was discharged and then refused to refund any part of the fee. Bar counsel argued that the fee was “unreasonable”, that the lawyer violated the rules by putting the fees into an operating account rather than a client’s trust account, and that he violated the rules by not providing a refund. The court disagreed with the first two allegations but agreed with the last one. As to the second allegation, the court also held the law in the jurisdiction does not prevent a lawyer from negotiating that advance fees will be the lawyer’s property upon payment.

So far so good. This is what I don’t understand. If it is agreed that the fee is earned upon payment, then how can it be considered to be unearned? So, in sum, the court says the fee is not unreasonable and the lawyer is free to negotiate that it is earned, only that the client can later claim it wasn’t earned. That does not make sense to me. The court is concerned with the fact that an attorney could end up keeping a huge fee for little work and that a client may be tied to an attorney they would rather fire. As the court says “the retainer in circumstances of termination of representation may represent a windfall”. All that is fine, but if the court wants the fee to be refundable, then it should hold that fees can’t be non refundable. Period. Instead, what the court ended up saying is that fees can be non refundable and earned, unless the client wants a refund or thinks they were not earned. And that is confusing, to say the least.

Justice Robert R. Thomas wrote the unanimous opinion issued Nov. 30 in a dispute involving the 2013 dissolution of a marriage between litigants Christine Goesel and Andrew Goesel. In that matter, Christine Goesel’s original representative was Goldstine Skrodzki, Russian, Nemec and Hoff, Ltd., while Janice Boback, of Anderson & Boback, LLC, represented Andrew Goesel. On Oct. 10, 2013, Laura Holwell filed an appearance as Andrew Goesel’s lawyer, and the trial court granted Boback leave to withdraw. Before withdrawing, Boback moved to disqualify Goldstine, alleging Goldstine improperly ordered Christine Goesel to provide her husband’s mail. 37,094 for her work on the disqualification. 27,142. She invoked the Illinois Marriage and Dissolution of Marriage Act’s level playing field rules, which can empower a court to force one spouse to pay the other’s legal bills such that neither has an advantage in the proceedings. However, Andrew Goesel also said he lacked the money for his lawyer. When Holwell refused to pay, she was found in contempt, fined and given a jail sentence. Holwell ultimately appealed that ruling to the Third District Appellate Court, which reversed the disgorgement order and contempt finding.

Unlike England, India has a written Constitution. But still, in the UK, the legislature, the executive or the judiciary would never trespass. On the one hand, in India, the judiciary very often breaches this fundamental line. The Supreme Court transgresses into the Parliament’s turf and usurps power of the legislative to enact laws. This encroachment by the judicial legislation is in sharp contrast to any democratic form of Government where ‘Separation of Powers’ reigns supreme. This judicial overreach also runs contrary to the basic structure doctrine of the Indian Constitution. For, the founding Fathers of the Nation had earmarked in the Constitution that the legislature, executive and the judiciary would operate and be the masters in their own spheres. Judiciary was meant to interpret laws made by the Parliament. It could declare a law made by the legislature or even an Amendment to the Constitution a nullity or perfectly valid.

But with the advent of Public Interest Litigation, the beliefs of the Founding Fathers of the Constitution became a mirage. Earlier, the judiciary was adjudicating on the English model, as enunciated in our Constitution where laws were only interpreted by the courts. However, of late, the Supreme Court has been taking suo moto notice of issues where it feels laws in that particular field have not been made by the Parliament; and that its judgement would be the law. This per se is judicial overreach and such judicial activism shakes the very foundation of the doctrine of ‘Separation of Powers’ upon which the Constitution’s edifice stands. ] SCC 354), former Supreme Court judge Markandey Katju’s opinion to the Bench, which is the law of the land on euthanasia, is a striking example of judicial activism. Even in the UK and France, Bills on euthanasia could not be passed as there was stiff opposition. In Holland and Belgium, Parliaments have enacted laws but India is not ready as the then Attorney General informed the Bench.

Nonetheless, the Supreme Court, speaking through Justice Katju, took over the legislative function of the Parliament and the judge-made law on legalised killing came into effect. Such a judgement overreaches into the legislative domain and ex facie has to be deprecated for entering into Parliament’s arena. Such judicial legislation is dehorns of our Constitution. The case mentioned above also shows that the apex court’s anxiousness to venture into taboo areas where it should rightly have shown judicial restraint. However, there have been several cases where this lakshman rekha has been breached, yet, the Supreme Court has reiterated explicitly many a time that it should not cross over. The larger issue is: Why should the Supreme Court legislate or issue such legislative-like and unheard of directions that Parliament is directed to enact a particular law? By doing so, it shocks democratic countries overseas who too are governed by the rule of law as usurpation is unheard of where the rule of law thrives. Democracy survives only when all the three organs remain in their lanes and do not swim across.

Very often, as English judgements say, emotional facts make bad law. Adjudication by courts must be strictly in accordance with the law and not in derogation of the established principles of the law. The proposition of the Doctrine of Separation of Powers was expounded by the same judge. ] SCC 630), Justice Katju had opined that the Supreme Court should not encroach on the legislative field. ] SCC 288) that it had no power to amend the Constitution by a judicial verdict and that it could not arrogate to itself the power of the Parliament under the Constitution and must maintain self-restraint. ] SCC 683), held that in several cases which have come up in the Supreme Court, the Bench has observed that the judges of High Courts were unjustifiably trying to perform executive/legislative functions. This was clearly unconstitutional. In the name of judicial activism, judges cannot cross their limits and try to take on the functions that belong to another organ of the state. He reiterated that the three organs of the state should not impinge on one another, as otherwise the delicate balance of the Constitution would be upset. Judges must know their limits and not behave like emperors. Interestingly, Justice Katju said in a judgement that judges could not create law and then enforce it. Judges cannot direct the legislature to make a particular law. All the above judgements too were delivered by Justice Katju but when the euthanasia case came before his Lordships four years later, he chose to gloss over it and the maxim of judicial restraint was ignored. Such aberrations in our judiciary must not shake up the basic Doctrine of Separation of Powers in India. An effective vigil is a must to ensure that such personal thoughts do not become the law of the land.

General Law Perceptions on Privacy: The EU Law vs. Can employees using company e-mail hold a reasonable expectation of privacy? Technologically the answer would be ‘no’. However legally, the answer is still not clear and is still evolving. Employer monitoring is an emerging area of law and thus, there is no clear concept of defining the extent of e-mail privacy at workplaces. The legal environment so far has failed to solve such technology related cases. The EU law has enjoyed greater success as compared to US in this context as it tries to meet the needs of both the employers and employees by bringing a balance between their expectations. This as compared to the US jurisprudence is different as they perceive that employees should not hold any expectation of privacy in the workplace and employers are completely justified by using any form of surveillance. EU, since the end of World War II have emphasized greatly on privacy laws with Germany, France and United Kingdom taking the front stance with an established legislative framework. The recent privacy related laws include the German Bundestag that had a section which was concerned with privacy in telecommunications.

This was called he Teleservices Data Protection Act. Another recent popular act was the British Data Protection Act that was initially enacted in 1984. However, in 2000, it was strengthened to include protection from electronic data too. Until 1914, the US Judicial System largely followed the precepts of English law when it came to dealing with introduction of evidence in criminal trials. The EU as compared to the US has an established legislative framework aimed at protecting data in an internet based and information driven economy. The aim of the 1995 directive was to protect individuals with regard to the processing of personal data and free movement of this data. Its supplement in 1997 set forth the protection of privacy and personal data in the telecommunication sector. The reason for considering US jurisdiction in most researches is, the country’s success is owed to its high tech and financial sector firms where privacy of data is most important and surveillance is most prevalent.

So far, no American law believes that its citizens should hold an expectation of privacy in the workplace. However, the Bill of Rights limits the government’s power to interfere with individuals, thus respecting personal privacy. The First Amendment recognizes the right to be left alone by guaranteeing privacy of beliefs. The Fourth Amendment protects persons, houses papers from government. The Fifth Amendment prohibits the government from coercing an individual to reveal private matters. In the landmark case of Griswold v/s Connecticut in 1960, a law involving prohibited use of contraceptives has been passed. The Supreme Court invalidated the law because it violated the “right to martial privacy”. Since this, the right to privacy was cited in several rulings. Title 1 of the ECPA protects communication while in transit. Section 2511, prohibits the interception of an e-mail while it is being transmitted. Title II, the Stored Communications Act (SCA) protects messages stored on computers.

Section 2701 prohibits the unauthorized access of an e-mail that is temporarily stored on a computer. In United States v/s Councilman, an argument occurred that if the ECPA did not protect e-mail in storage, then other protections were pointless as virtually all e-mail is stored temporarily in transit at least once. Title III prohibits the use recording of dialing, addressing and signaling information. However the loophole that is provided for the employer’s benefit is that under the system provider exception, the system administrator, officer or provider can intercept and monitor. Also employers are allowed to monitor e-mail or phone calls for ‘business’ purposes. US laws as such have taken decision varying on a case to case basis. Generally speaking, it is difficult to persuade the court that the employer is invading in the employee’s legitimate expectation of privacy in the workplace as the systems are owned by the employer. In Fraser v/s Nationwide Mutual Insurance Company, the Court of Appeal ruled that since Fraser’s e-mails were stored on the Nationwide system, any search by the company was authorized by an exemption in the ECPA for e-mail service providers.

It was held that Nationwide did not violate statutory prohibitions against intercepting e-mails. In McLaren v/s Microsoft, as part of his employment, Microsoft made available to McLaren the use of an e-mail system owned and administered by Microsoft. McLaren had the right to store e-mail and protect it with a password. Due to suspicion, Microsoft broke into his personal folder. McLaren argued that the folder should have been treated as a secure storage locker and that he expected a reasonable expectation of privacy. This was overruled by the court that held that since the mail first came to the folder and then moved to the protected folder, it was subject to inspection and McLaren should have had no expectation of privacy. In determining if whether the invasion was or was not offensive, the court recognized the importance of whether the act was justified. The fact that McLaren was under investigation, and that he had notified Microsoft about the e-mail’s relevance to the investigation, clearly supported the court’s finding that Microsoft’s was justified.

For examples of pro bono opportunities, you may use the following links for Colorado Legal Services, Colorado Lawyers Committee, and Metro Volunteer Lawyers. Please note: Reporting is done by calendar year. An email is all that is required to report your achievement of the pro bono goal, renew your commitment despite falling short of the goal, or join the commitment for the first time. No form is required, and reporting is done on the honor system. Law Office of Teresa Abbott, P.C. Norman B. Beecher, P.C. Branaugh Law Offices, P.C. Burg Simpson Eldredge Hersh & Jardine, P.C. Joseph R. Enzor, P.C. Law Offices of Anthony J. Fabian, P.C. Fisher & Associates P.C. Goldman, Robbins, Nicholson & Mack, P.C. Hamre, Rodriguez, Ostrander & Dingess, P.C. Hill & Robbins, P.C. Judson C. Hite, Attorney P.C. Jones & Keller, P.C. Karp Neu Hanlon, P.C. Masters & Viner, P.C. Raymond K. Miller, P.C. Naylor & Geisel, P.C. Prendergast & Associates P.C. Rice Law Office, P.C. Robinson Waters & O’Dorisio, P.C. The Law Firm of Lee K. Rosenbaum, P.C.

As we celebrate National Press Day on 16 November, let’s pay our heartiest tributes to everyone who contributed to the growth of print media and also its watchdog and mentor, the Press Council of India. Since its inception and functioning, the Press Council continues to symbolize a free and responsible press in the largest democracy of the world. For the record, the PCI was first constituted on 4 July 1966 as an ‘autonomous, statutory, quasi-judicial’ body with Justice JR Mudholkar, then a Supreme Court judge, as its chairman. Under the Press Council Act 1965, various relevant functions are being authorized for the PCI, such as helping newspapers to maintain their independence, and building up a code of conduct for newspapers and journalists in accordance with high professional standards. The PC Act directs that the PCI shall consist of a Chairman and 25 members. Out of the members, three are to represent two houses of Parliament, 13 from working journalist category including editors and representatives from news agencies, and the rest would be from various fields of education, science, literature, culture, and law.

The chairman, nominated by the Chief Justice of India, and the members of PCI normally hold office for a period of three years. Till date, the PCI has been adorned by a galaxy of distinguished personalities including judges, editors, newspaper owners, journalists, media rights activists, litterateurs, educationists, and lawyers. Justice Mudholkar was followed by Justice N Rajagopala Ayyangar, Justice AN Grover, Justice AN Sen, Justice RS Sarkaria, and Justice PB Sawant as PCI chairman. It was our Father of the Nation Mahatma Gandhi who articulated the concept of self-regulation, in which press councils or similar bodies were founded and still functioning. Under this noble concept, the sole aim of journalism should be service to humanity. As the newspapers possess great power, they should be controlled from within. Irresponsible exercises of media power would always invite condemnation. Till the last century, newspapers dominated the media scenario. Even though only 10 to 15% of the Indian populace can understand and consume English, the first newspaper in the country, The Bengal Gazette, was published in that language on 29 January 1780 by James Augustus Hicky during British rule.

It was a two-page weekly newspaper, where most of the space was occupied by government advertisements. As regional newspapers started hitting the market, we had Arunodoi as the first newspaper in Northeast India, published in 1846. The alienated region today publishes over a hundred morning daily newspapers in various languages. The sizeable population of the region still depends on newspapers for necessary news content. For instance, Guwahati supports the publication of nearly 30 morning daily newspapers in various languages like Assamese, English, Hindi, and Bengali. As a nation, we support over 82,000 registered newspapers with a cumulative daily circulation of 110 million. Fighting with an enormous credibility crisis, the Indian newspapers continue growing to make it a Rs3,20,000-million industry. As we are improving our literacy rate up to 75 percent, more citizens now develop the capacity to read newspapers (even in digital forums). By the end of the century, television encroached on the Indian media scene.