Monday, July 18, 2011

Published Circuit Opinions - July 18

Second Circuit:

(W)hen an alleged violation of RCRA depends on the presence or release of a particular contaminant, the NOI must identify the contaminant alleged to be the basis of the violation with sufficient specificity to permit the recipient to identify the specific legal provision alleged to be violated and the activity alleged to constitute the violation

Shares held by second party in a credit-default swap as a hedge against the swap may or may not count towards the first party's 5% threshold for 13(d) - the issue is group formation - remand.  Special concurrence (reads like a dissent, esp. last paragraph):  No investment or voting power  unless there is prior agreement; no intent to evade; comparison of S16 of the Act; not-yet-promulgated SEC authority under Dodd-Frank could resolve.

Fifth Circuit:

Insufficient expectation of privacy to challenge placement of GPS tracker on deft's brother's truck; BUT sufficient standing to challenge tracking of truck when he was in it - constable did not blunder, though, as monitoring wasn't continuous enough to justify a Maynard/mosaic-type claim.

Eighth Circuit:

Title VII case - racial discrimination.  Summary judgment for deft upheld, as scattered incidents didn't suffice for hostile workplace claim; Note to plaintiffs: when filing suit for not being promoted in 2007, be absolutely sure that you weren't promoted in 2007.

Missouri malicious prosecution claim TKO'd by court's pretrial finding of sufficient cause to charge; no comment as to whether a nolle prosequi is a termination of the case in deft's favor.

Ninth Circuit:

Death penalty deft's habeus claims denied - (1) evidence of childhood abuse that deft withheld at time of trial should have been discovered with due diligence; (2) timely PTSD diagnosis would not have been an absolute bar to death sentence; (3) PTSD collateral attack on prior conviction denied as facts were available to deft at trial & insufficient adverse effects on second sentencing.  PTSD "startle reflex" theory insufficient to challenge findings of killing for pecuniary gain & especially heinous method of killing.  Thou shalt not kill.

Plaintiffs given notice of lien, asked for stock to be sold and credited to the debt.  Held: (1) Tax court can hear the case given "any relevant issue" language in S6630 (2) Equitable-ish remedy of crediting the amount that would have been gained by the sale upheld as specific remedy, not (statutorily preempted) award of damages.

Errata - See 4/27.

Compiled by D.E. Frydrychowski, who is, not incidentally, not giving you legal advice.

Category tags above are sporadically maintained Do not rely. Do not rely. Do not rely.

Author's SSRN page here.