Monday, August 01, 2011

Published Circuit Opinions - August 1

Second Circuit:

Long reads today.

Alleged insurance/reinsurance fraud - (1) Where defts offer to stipulate to materiality, a stock price bar chart in prosecution's opening is unduly prejudicial; (2) vacatur where the instruction might allow the jury to convict without finding causation; (3) no error in 'conscious avoidance' instruction for future scienter where there is an extended course of dealing involving forward-looking communications; (4) Jury can convict on multiple theories of liability, viz: they are zones on a continuum of awareness, all of which support criminal liability; (5) 'no ultimate harm' instruction did not undercut deft's 'good faith' defense; (6) Email in passive voice ("have been advised") isn't double hearsay (dictum, as document was ultimately not admitted for the truth of the matter asserted); (7) Alternately inculpatory/exculpatory email did not require severance; (8) Lawyer's memo simply reporting the terms of the deal is not a communication by a subordinate which would absolve the subordinate of responsibility under Connecticut professional standards; (9) Gratuitous admission of statements by execs vilifying deft's employer (AIG) best avoided in coming retrial; (10 ) Admission of testimony from party to conversation (in order to establish scienter) about what the speaker likely meant is kosher, if the witness has some basis for knowledge.

When during sentencing, a judge makes an indiscriminate remark about several potential Guidelines interpretations and claims that he would impose the same sentence no matter what the Guidelines range turns out to be, errors in calculating the Guidelines ranges are still potentially reversible; A website can get the "mass marketing" sentencing bump;  Medicare fraud operation and fraudulent organ donation website (seriatum) are 'same course of conduct' for sentencing purposes; Fraudulent website involved 'conscious or reckless risk of death or serious bodily injury,' especially as one bloke went to the Phillipines at deft's urging and passed away in a hospital there; Post-guilty plea flee to the Phillipines gets the obstruction bump; In-range sentence not unduly unparsimonius.

Cross-appeals TKO'd, as case is being heard under an exception to a rule generally barring interlocutory appeals; Error in District Court finding that a literally true statement about cracking down on market timers did not mislead investors, as management was allowing one client to market-time; Even where the Fraud Dicovery Rule is not referenced in statute, fraud is inherently self-concealing, so it applies - this need not be pled, but a reasonable diligence standard is applied to victim's discovery; Injunctive relief allowed where there is "an inference of reasonable expectation of continued violations.

 Labor law - District Court should have considered employer as potential successor even absent that argument being made by counsel, as the presumption is where the employees are at the same location, they are working for a successor.

Third Circuit:
No error in holding that S1983 plaintiff alleging defamatory acts (among other things) cannot proceed anonymously.  ("No reasonable person" standard of review.)

 Given plain reading and avoiding surplussage, contract term is "pay-if-paid," not "pay-when-paid"; Liquidating term in contract (mechanism for pass-through claims by & against subs in construction contracts) is to be broadly read, limiting claim to pro-rata recovery; Counterclaim is timely, as specific claims & defenses can be asserted after time limit has passed, so long as a general denial is offered within the limit; Expenses & costs include attorney's fees.

 Seventh Circuit:

Pros Se application for COA granted - question is whether a quasi-collateral Indiana sentencing appeal proceeding  gets the petitioner counsel or no.

SSA - Claimant's physician's diagnosis of bipolar disregarded by ALJ in favor of second physician's diagnosis of depression. Reversed under substantial evidence standard. --  The ALJ further doubted that the voices Scott was hearing would keep her from working because she “heard voices in the daytime only once.” 

Eighth Circuit:

One meeting in Arkansas = insufficient contacts with forum, as trademark infringement was by a restaurant in Iowa.  Sadly, nothing to to with the FB Bros.

No 1A violation in disciplining student for texting about upcoming acts of violence - true threats; not hearsay, as it goes to state of mind; remanded to state courts for state law claim.

Immigration - Membership in family injured by gang violence and known to be opposed to gangs is an insufficiently distinct 'social group' for fear-of-persecution analysis.

No error in court refusing to give an alibi instruction when timely requested.

Even where victim doesn't identify the deft in court, conviction reasonable on circumstantial evidence. Particularly unfortunate set of initials for (juvie) deft.

Ninth Circuit:

 Sovereign immunity bars claims against BLM where the violation is of a federal-constitutional type, but claims that would sound in tort under state law may proceed under FTCA; Under Alaska law, whether breach of fiduciary duty sounds in tort or contract varies with the facts; Various BLM statutes do not waive immunity here; Nor does S1983; 11th Amendment limits relief on inverse condemnation to state courts, but also bars claims against the state generally.  Extensive 11A discussion.

Environmental law - We hold that to state a claim predicated on RCRA liability for “contributing to” the disposal of hazardous waste, a plaintiff must allege that the defendant had a measure of control over the waste at the time of its disposal or was otherwise actively involved in the waste disposal process. Mere design of equipment that generated waste, which was then improperly discarded by others, is not sufficient.

Given historical state dominance over personalty and secured transactions, California debt-collection notification act not preempted by National Bank Act & related rules.

Order- Going to en banc.

Tenth Circuit:

For sentencing, an 'intended loss' must have been specifically intended, not merely contemplated or possible - deft is sentenced for the amount he actually negotiated the bad checks for, not the credit limit on the checks.

Federal Circuit:

 Um, something to do with patent law.  And 'Cool Hand Luke' is playing in the park a block away from here.  Bye.

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.