Tuesday, July 26, 2011

Published Circuit Opinons - July 26

Second Circuit:

No right to jury trial on question of whether prisoner didn't exhaust administrative remedies under PLRA.

Where deft forces gov't to a Fatico hearing on a disputed question in sentencing, this is not grounds for the govt not to file for a sentencing reduction based on acceptance of responsibility.

Where the one year AEDPA habeus limit is tolled, petitioner need not demonstrate reasonable diligence outside of the tolled period (unless such diligence would have allowed the petitioner to file after the end of the potentially tolled time).

Misstatement in registration documents for an IPO is material where it is of distinct interest to investors.  Asset in quesiton was troubled loan - District Court held that adequate collateralization meant the lack of warning at IPO was not material - Circuit explicitly disclaims this bright line test.

 Where parties have signed a forum selection cause which permits suit in a different federal district, the court hearing the case in another district may dismiss via 12(b)1,3,6 - it is notcompulsory on the court to transfer to the other venue.

First Circuit:

Tax - a "section 197 intangible" includes any covenant not to compete entered into in connection with the acquisition of any shares - substantial or not -- of stock in a corporation that is engaged in a trade or business. 

"Buy your client a Dayrunner," cont'd: Court upheld dismissal of deft's attempt to withdraw guilty plea.  Deft claimed that prosecutor's inflated sentencing predictions had an unfair in terrorem effect.  The statements were, however, made several months after the plea.

Fourth Circuit:

After a contested period where union dues revocations were processed without a union sign-off, arbitrator's resolution need not provide for cancellations of revocations processed without signoff, as no statute compels it.

Sixth Circuit:

S1983 - Qualified Immunity granted, as (1) parking car behind plaintiff's car in a driveway isn't categorically a seizure, (2) Stopping in response to a police officer's request to talk isn't categorically a seizure (Alternative holding for both - it was a valid Terry stop.)  (3) Use of handcuffs kosher in Terry stop where officer fears for safety (4) not adjusting tight cuffs does not violate clearly established federal law where no injury is apparent.

Seventh Circuit:

An Uruguayan Sociedad AnĂ³nima is a corporation (not partnership) for purposes of diversity jurisdiciton; Where the choice-of-law clause indicates that Spanish law should apply, but the lawyers don't brief it, the forum should apply its own law; Services provided beyond the parties agreement do not deserve enforced quantum meruit renumeration.

 Trademark cannot be licensed in bankruptcy proceding without the consent of the trademark owner - this is (now) a background presumption of contract law; A service agreement is not a de facto trademark agreement for the purpose of assignment restrictions where there are specific trademark provisions within the four corners.

 While architectural drawings recreated from memory and paper notes qualify as bona fide copies for registration purposes, plaintiff's designs were insufficiently original for copyright protection (court mizxes the question of originality with 'copying in fact' analysis).

GD Corp.  contracted with relator to set up telecoms contracts in Greece - when that went sour and Greece later purchased aircraft from GD secured by US money, realtor filed qui tam suit under the False Claims Act alleging contract-type misdeeds by the corporation.  TKO'd at summary judgment.

Eighth Circuit:

Crim - sufficient evidence, inclusive of jailhouse snitches; no description of why admission of contested evidence would be substantial error; ineffective counsel claims best not pursued on direct appeal.

Brief, unelucidated comment by victim that abuse recurred is insufficient for conviction on
additional counts; no harm on admission of note written to counselor at interview where victim is available for cross; insufficient proof on voir dire challenge; deft has no legitiamte expectation of finality in sentence as announced at sentencing (supervised release was added later).

Ninth Circuit:

We hold that the District Court prejudicially erred in refusing to instruct the jury that, for purposes of proving a Monell [4A excessive force] claim, a custom or practice can be supported by evidence of repeated constitutional violations which went uninvestigated and for which the errant municipal officers went unpunished. 

Parties can opt for non-federal arbitration law in agreements; Choice of law clause on body of arbitration law insufficient - clear and unmistakable evidence required (the fault here was that the agreement didn't say that the chosen body of law would decide if the question was arbitrable in the first place) - circuit split signalled; general negligence theory of present  case means that arbitration on meaning of specific terms of the agreement is not called for.

Today we clarify that a plaintiff does not have to prove that an airline violated an Federal Aviation Administration (“FAA”) standard to establish that there was an “accident” under Article 17 of the Convention of the Unification of Certain Rules Relating to International Transportation by Air (“Montreal Convention”).

Arranger liability under CERCLA struck down - manufacturer of machine used in dry cleaning has no liability for users' habit of dumping out the waste products i the drains.  Special concurrence: Statute requires that the offender own the substance in question.

Insufficiency of representation of interests for purposes of determining the merits of an intervention can be established where one party has adopted its litigating position in order to comply with a previous court order.

Tenth Circuit:

Prior tribal misdemeanor convictions can count for habitutal offender status, as there's no Sixth Amendment issue, since the 6th Amendment doesn't apply to the tribes - circuit split signalled; DP challenge to tribal priors does not violate principles of Third Restatement of International Law;  Equal Protection challenge TKO'd under Rational Basis.
 As the sentence was "realisitcally imaginable," post-mandatory-guidelines over-guidelines sentence upheld against 5A Due Process challenge.
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.