Wednesday, August 10, 2011



Patent Law -

Quick parse far outside of TMB's intellectual comfort zone sez:

When repairing an obvious and correctable error in the patent application, the court should take the perspective of someone skilled in the art. 

Testimony of one skilled in the art is not dispositive.

[Really, though, no clue.  TMB]

Federal Circuit -- MHL TEK, LLC. V. NISSAN MOTOR CO.


 Patent law -

Quick parse far outside of TMB's intellectual comfort zone sez:

(1) No standing on some claims, as carve-out protected parent inventions, and while patents reference part of the parent inventions, there was still a distinction.

(2) As the claims of the individual patent are supported by the Parent application, it is within the 'inventions and discoveries' contemplated by the latter.

(3) Where individual patents concern elements of the Parent, they do not necessarily concern the Parent itself.

[Really, though - no clue.  TMB]

Eleventh Circuit -- Barbara Elizabeth Lawson, et al v. Life of the South Insurance Company

Barbara Elizabeth Lawson, et al v. Life of the South Insurance Company 

Under Georgia law, a third party cannot compel arbitraiton based on a claim of third party benefit or indirect (based on a second agreement which would not have been concluded except for the existence of the first) equitable estoppel.

Concurrence, State law governs, equitable estoppel appropriate, but barred by state arbitration law.

Tenth Circuit -- Standifer v. Ledezma

Standifer v. Ledezma

BOP policy of only looking back 12 months to determine eligibility for drug treatment programs is kosher & not a DP violation.

Deliberate indifference to medical needs must be raised in S1983, not in habeus. 



District court can set aside a default judgment after finding excusable neglect - the multifactor test need not be balanced, and no one consideration is dominant.  



Affirmed as per Scotus.



 Where deft, in course of colloquy as to continuances, indicates readiness to proceed pro se, state courts' determination that the statement wasn't a valid attempt to dismiss counsel is not unreasonable.

Violation of confrontation clause was harmless error, as statements were cumulative.

No error in state court denial of evidentiary hearing to develop Brady claim as to lab's practice of discarding draft reports.

Lack of details in prosc's admission that some blood spilled at the lab is not grounds for justifying procedural shortcomings by deft.

Ineffective assistance: 

Attorney overwork not grounds for ineffective assistance claim.

State finding not unreasonable that lack of diminished capacity defense was not prejudicial given that it would have contradicted deft's alibi defense.

No evidence that deft would have agreed to intoxication defense.

No error in counsel not confronting witness on priors and changes in story, given other evidence of untrustworthiness.

No error in introduction of alias, as it was the sobriquet of the fingerprints.

Insufficient DNA critique presented at state level.

No error in illustrative autorads not going to jury room.

Procedural default on insipid cross of witness, as not argued in state habeus.

No reversible error from cumulative deficiencies.

[Thou shalt not kill.  -TMB ]

Ninth Circuit -- VIEWTECH, INC. V. USA


Where depositor has a controlling interest in the entity where his funds are deposited, no requirement under statute to notification of the depositor upon issuance of a summons for the records.






The confidentiality provisions of the Special Agricultural Workers' Program were not violated, where in an interview which resulted in a signed affirmation of having committed SAW fraud, information was gained which resulted in denial of residency.  Logic - only the form itself is confidential.

Eighth Circuit -- John S. Lovald v. Gerald Wayne Falzerano

John S. Lovald v. Gerald Wayne Falzerano

No recovery to estate on a claim based in unjust enrichment, as unjust enrichment is an equitable action presupposing a contractual relationship, not a ripe debt as required by the Bankruptcy Code.

Eighth Circuit -- United States v. Jemaine Sidney

United States v. Jemaine Sidney

 The FSA does not apply to those sentenced after effective date of the Act where the crime was before the effective date of the Act.

No violation of ex post facto, cruel & unusual or equal protection , given circuit precedent.

As FSA is not retroactive, it is not a basis for the withdrawal of a plea.

Eighth Circuit -- Sherry Perkins v. Michael J. Astrue

Sherry Perkins v. Michael J. Astrue

No deference to the treating physician, as the notes were conclusory as to the disability & internally inconsistent.

No evidence to show ALJ biased against fibromyalgia claims.

Eighth Circuit -- United States v. Deven J. Poitra

United States v. Deven J. Poitra

 No error in SORNA prosecution jury instruction not defining "reside," as the definition in the Act is similar to the commonly held definition of the term.

Variance in jury instructions in number of days allowed for offender registration was harmless, as not contested at trial.

No plain error in allowing probation officer to choose course of treatment, as court retained ultimate control.

Although unexplained restriction in sentence was plain error, no reversal, given support in record and that remand not necessary to preserve public trust in the judicial process.

Eighth Circuit -- EEOC v. MN Law Enforcement Association

EEOC v. MN Law Enforcement Association

State plan barring new employees over 55 from  early retirement violates ADEA, as the plan doesn't find safe-harbor in consistency with the purposes of the Act.

Eighth Circuit -- United States v. Jimmie Coutentos

United States v. Jimmie Coutentos

 Reversal on ineffective assistance, as counsel did not raise statute of limitations defense where date of offense was unclear, and might have fallen in interval between expiration of original SOL and statutory extension.

No error in introduction of prior (very) bad acts, given similarities to victim in present action.

No error in exclusion of "false memories" expert witness.

No improper vouching where prosecutor say s that witness had not motivation to lie.

Sufficient evidence.

Eighth Circuit -- AMCO Insurance Company v. Inspired Technologies, Inc.

AMCO Insurance Company v. Inspired Technologies, Inc.

Under Minnesota law, duty-to-defend broadly obligates the insurer to defend any single claim that arguably falls within the scope of coverage - absent specific findings on each claim, a "knowledge of falsehood" exception does not broadly remove duty.

Interrogatory statements can be used for this determination - it is not limited to language of the claim and of the the policy.

No intent needed for violations of the Lanham Act.

Eighth Circuit -- Michael Persechini v. L. Callaway

Michael Persechini v. L. Callaway

Prisoner S1983 claim alleging that his transfer from early-parole drug treatment facility as a result of alleged towel theft (he claims he was just 'trading up') violated Due Process.

Held: Inmate did not have a protected liberty interest in the prospect of early parole after completion of the program.

No liberty interest, as only consequence is that inmate has to serve out his initial term.

Seventh Circuit -- John Sullivan v. Cuna Mutual

John Sullivan v. Cuna Mutual


Where employees had the ability to retain unused sick days as credit towards future health care, 120M increase in balance sheet after change in medical scheme for retirees didn't represent appropriation of beneficiaries' assets by plan, just a release of future potential liabilities given the decreased scope of coverage.

Unused sick leave is not a plan asset, and therefore not a non-ERISA asset which is governed by state law.

Employer has prerogative to modify plan.

Dissent: While ERISA preempts state remedies, it does not preclude relief according to promissory estoppel/detrimental reliance. 

Seventh Circuit -- Gregory Weatherbee v. Michael Astrue

Gregory Weatherbee v. Michael Astrue

 In proceedings before an ALJ, the reconciliation of a vocational expert's testimony with the DOT is accomplished by the VE's declaration under oath that he or she will identify any such variances.

VE's statements as to potential jobs to be performed by the claimant refer to general types of tasks, not specific jobs in the DOT.

Seventh Circuit -- Jayne Mathews-Sheets v. Michael Astrue

Jayne Mathews-Sheets v. Michael Astrue


Sixth Circuit -- USA v. David Denny

USA v. David Denny 

Sentence far above guidelines sentencing range was a variance,  not a departure as "seriousness of offense" is considered under 3553(a), and the court said that it thought the guidelines sentence didn't reflect the seriousness of the offense.  (Distinction is important, as a warning would have to have been given if a departure was contemplated.)

The fact that the court checked "departure" twice in the sealed statement of reasons is not dispositive, as the oral sentencing controls, and there was insufficient ambiguity to look to extrinsic texts.

No procedural error when court describes sentence as "reasonable" instead of "sufficient, but not greater than necessary."

No substantive unreasonableness when court increases sentence based on effect on victim as opposed to applying vulnerable victim enhancement, as the latter considers susceptibility, not harm sustained.

Sixth Circuit -- Jasen Barker v. Andrew Goodrich

Jasen Barker v. Andrew Goodrich 

S1983 prisoner suit alleging violations of 8th Amendment.

District Court grant of immunity to the prison reversed, as immunity is an affirmative defense which must be raised by the claimant.

Monetary S1983 claims against individuals acting in their gov't capacity barred by 11th Amendment, injunctive relief may continue to be sought.

District Court grant of qualified immunity to deft's reversed, as the violations of rights were clear (for no reason, plaintiff spent 12 hours handcuffed to wall)

Sixth Circuit -- Keith Lewis-El v. Barbara Sampson

Keith Lewis-El v. Barbara Sampson 

S1983 action by prisoner alleging ex post facto violation in the change of Michigan's sentence commutation system - previously, there had been a grid which rated factors, now a ten-year rotating review.  Held: No error in District Court dismissal, as commutation is at the discretion of the Executive.

Fitfth Circuit - Stephen Gabarick v. Laurin Maritime (America), Inc

Stephen Gabarick v. Laurin Maritime (America), Inc

Interlocutory appeal as to whether costs of defense should erode indemnification policy limits, consolidated with a subsequent 54(b) order on the issue by the district court.  Held: that the allocation of interpleader funds by the court (the decision whether the liability was decreased or not) is insufficiently final for review.   (Insurer had duty to reimburse defense costs, but no duty to defend.)

Policy clearly states that defense costs come from the kitty.  Plan provision suggesting otherwise (collision provision) is severable, and therefore independent of the rest, intent-wise.

NB - two separate files posted on the court's site - unsure which controls.  Copy 2:
Stephen Gabarick v. Laurin Maritime (America), Inc

Second Circuit -- United States v. Riggi (Abramo)

United States v. Riggi (Abramo)

Waiver of appeals is still good, despite ex post fact  concerns (sentencing guidelines postdated the end of the conspiracy) - earlier decision saying constitutional concerns could abrogate waivers was dictum referring to mandatory sentencing guidelines.

Issue of knowing waiver is reserved for habeus petition based on ineffective assistance of counsel.
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.