ASWAN v. Commonwealth of Virginia
Allegation of a conspiracy to get the homeless out of downtown by building a distant shelter insufficiently pleaded, TKO'd by SOL.
Bare assertion of a Section 1985 conspiracy to get the homeless out of the center of the city insufficiently pleaded under Twombly.
One year SOL in state statute applies to ADA claims brought in Virginia.
Given the allegations of conspiracy, the SOL runs from the building of the out-of-town shelter, not the consequent incidental statutory violations.
Retracting a gratuitous promise is an insufficient basis for an ADA retaliation claim.
Concur/dissent - retraction of gratuitous promise was materially adverse, which justifies the retaliation claim.
Concur/dissent - discrete acts after the opening of the new shelter suffice for SOL reset.
Recent Precedential Slip Opinions from the U.S. Circuit Courts of Appeals.
Wednesday, August 24, 2011
Fourth Circuit -- ASWAN v. Commonwealth of Virginia
Third Circuit -- Keith Litman v. Cellco Partnership
Keith Litman v. Cellco Partnership
Federal Arbitration Act preempts state policies favoring class-based arbitration. The customer's waiver of class-based actions is binding.
(On remand from Scotus.)
Federal Arbitration Act preempts state policies favoring class-based arbitration. The customer's waiver of class-based actions is binding.
(On remand from Scotus.)
Labels:
Arbitration,
Class Actions,
Conflict of laws,
Preemption
Third Circuit -- In Re: Niles C. Taylor
In Re: Niles C. Taylor
Where a lawyer rubber-stamps data fed by an automated client interface into her court filings, this one goes to eleven.
Literally true statements in a filing can also be false or misleading.
Key to whether attorney can accept statements from client as true is whether she elicits them, or is simply given them by client. Where automated system provides counsel with false data, reliance is unreasonable. Opponent's claims can also put attorney on notice.
Sufficient particularized notice of sanctions, even when not captioned as an order to show cause.
Bank client of law firm insufficiently intertwined to benefit from reversal of sanctions against firm unless it shows up to fight them as well.
Where a lawyer rubber-stamps data fed by an automated client interface into her court filings, this one goes to eleven.
Literally true statements in a filing can also be false or misleading.
Key to whether attorney can accept statements from client as true is whether she elicits them, or is simply given them by client. Where automated system provides counsel with false data, reliance is unreasonable. Opponent's claims can also put attorney on notice.
Sufficient particularized notice of sanctions, even when not captioned as an order to show cause.
Bank client of law firm insufficiently intertwined to benefit from reversal of sanctions against firm unless it shows up to fight them as well.
Second Circuit -- Patsy’s Italian Restaurant, Inc. v. Banas
Patsy’s Italian Restaurant, Inc. v. Banas
(Excellent) pizzeria and sauce operations in trademark fight over who is the bigger... You know...
Injunction barring sauce brand from seeking cancellation of competitor's mark does not bind affiliated restaurant business.
Where a jury finds that a company has abandoned its mark through naked licensing, court may find that the special verdict on abandonment refers only to those geographical areas referred to in the charge.
Valid mark in any geography sufficient to block similar federal mark of competitor before finalized.
When mounting a prior use defense for a federal mark, interstate use does not have to be shown.
No error in not awarding fees to prevailing party under the Lanhamm Act - properly within court's discretion.
No error in court including definitions of both pizzeria services and restaurant services in the jury instructions.
Sufficient evidence for fraud on the PTO.
No abuse of discretion in court ordering cancellation of competing mark but not restoring mark, given limited rights of past trademark holders.
No abuse of discretion in not enjoining future use of mark where court cancels mark.
No abuse in a sua sponte injunction barring use of the mark in a certain area where there is evidence of consumer confusion.
(Excellent) pizzeria and sauce operations in trademark fight over who is the bigger... You know...
Injunction barring sauce brand from seeking cancellation of competitor's mark does not bind affiliated restaurant business.
Where a jury finds that a company has abandoned its mark through naked licensing, court may find that the special verdict on abandonment refers only to those geographical areas referred to in the charge.
Valid mark in any geography sufficient to block similar federal mark of competitor before finalized.
When mounting a prior use defense for a federal mark, interstate use does not have to be shown.
No error in not awarding fees to prevailing party under the Lanhamm Act - properly within court's discretion.
No error in court including definitions of both pizzeria services and restaurant services in the jury instructions.
Sufficient evidence for fraud on the PTO.
No abuse of discretion in court ordering cancellation of competing mark but not restoring mark, given limited rights of past trademark holders.
No abuse of discretion in not enjoining future use of mark where court cancels mark.
No abuse in a sua sponte injunction barring use of the mark in a certain area where there is evidence of consumer confusion.
Federal Circuit -- GENETICS INSTITUTE, LLC. .V NOVARTIS VACCINES AND DIAGNOSTICS, INC.
GENETICS INSTITUTE, LLC. .V NOVARTIS VACCINES AND DIAGNOSTICS, INC.
Despite precedent suggesting lack of jurisdiction over disclaimed patents in an action alleging interference, the logic doesn't apply to expired patents in a similar action, as holders of expired patents hold some rights.
Patent term extension in S156 does not apply on a claim-by-claim basis.
Much ado about the obviousness of protein patents, absolutely none of which is obvious to TMB at two in the morning.
Despite precedent suggesting lack of jurisdiction over disclaimed patents in an action alleging interference, the logic doesn't apply to expired patents in a similar action, as holders of expired patents hold some rights.
Patent term extension in S156 does not apply on a claim-by-claim basis.
Much ado about the obviousness of protein patents, absolutely none of which is obvious to TMB at two in the morning.
Federal Circuit -- SOUTHERN CALIFORNIA EDISON CO. V. U.S.
SOUTHERN CALIFORNIA EDISON CO. V. U.S.
As they derived from the breach, indirect administrative and overhead costs can be included in the recovery.
As they derived from the breach, indirect administrative and overhead costs can be included in the recovery.
Eleventh Circuit -- Walter Int'l Productions v. Walter Mercado Salinas
Walter Int'l Productions v. Walter Mercado Salinas
Trial management difficulties doom recovery, allow court to make several pop-culture references.
No abuse of discretion in allotting each side 25 hours to present evidence, as appellant didn't object, and court was not rigid or inflexible in implementing.
No error in barring expert witnesses where Rule 26 pretrial disclosures were substandard.
No error in barring witnesses added via a contingent list later in the proceedings.
Sufficient evidence on damages.
No error in court sending away the jurors by telling them to have the wisdom of Solomon - it wasn't as the appellant suggests, a cue that they should divide the damages equally.
While special verdict finding breach but denying damages is inconsistent, as appellant didn't object before discharge of jury, issue is waived.
Trial management difficulties doom recovery, allow court to make several pop-culture references.
No abuse of discretion in allotting each side 25 hours to present evidence, as appellant didn't object, and court was not rigid or inflexible in implementing.
No error in barring expert witnesses where Rule 26 pretrial disclosures were substandard.
No error in barring witnesses added via a contingent list later in the proceedings.
Sufficient evidence on damages.
No error in court sending away the jurors by telling them to have the wisdom of Solomon - it wasn't as the appellant suggests, a cue that they should divide the damages equally.
While special verdict finding breach but denying damages is inconsistent, as appellant didn't object before discharge of jury, issue is waived.
Tenth Circuit -- United States v. Hernandez
United States v. Hernandez
Statutory limit to resentencing for violations of supervised release is calculated per-offense, not cumulatively.
While title of statute refers to sex offenders, as the text does not so limit it, it applies across the board.
Statute does not risk endless cycle of incarceration, as although the prison sentences aren't aggregated, the supervised release sentences are.
Statutory limit to resentencing for violations of supervised release is calculated per-offense, not cumulatively.
While title of statute refers to sex offenders, as the text does not so limit it, it applies across the board.
Statute does not risk endless cycle of incarceration, as although the prison sentences aren't aggregated, the supervised release sentences are.
Tenth Circuit -- Weight Loss Healthcare Centers v. Office of Personnel Management
Weight Loss Healthcare Centers v. Office of Personnel Management
Deference is due OPM's interpretation of federal health care plans - standard of review is 'arbitrary and capricious.'
Plaintiff argues that as the contracts are written in plain language, courts should be as free as the agency to interpret - court holds that contract language need not be arcane to require expertise in its interpretation.
Possible circuit split with the 4th.
Key interpretation question is whether plan's commitment to pay the average cost incurred nationally refers to the present procedure or average of all outpatient procedures - court holds that, given context, it is the latter.
Reasonable insured standard does not displace contractual language.
Remanded to OPM with instructions to verify the insurers' numbers. Supporting evidence needed, or, in the alternative, a reason why it is not needed.
Deference is due OPM's interpretation of federal health care plans - standard of review is 'arbitrary and capricious.'
Plaintiff argues that as the contracts are written in plain language, courts should be as free as the agency to interpret - court holds that contract language need not be arcane to require expertise in its interpretation.
Possible circuit split with the 4th.
Key interpretation question is whether plan's commitment to pay the average cost incurred nationally refers to the present procedure or average of all outpatient procedures - court holds that, given context, it is the latter.
Reasonable insured standard does not displace contractual language.
Remanded to OPM with instructions to verify the insurers' numbers. Supporting evidence needed, or, in the alternative, a reason why it is not needed.
Tenth Circuit -- Rojem v. Workman
Rojem v. Workman
District Court fee determinations are not appealable orders.
District Court denied review of Magistrate's determination that fees for investigation of penalty-phase issues beyond a cursory background investigation are not permitted for counsel retained for collateral attack on penalty phase.
Not analogous to a complete denial of counsel.
[Thou shalt not kill. - TMB]
District Court fee determinations are not appealable orders.
District Court denied review of Magistrate's determination that fees for investigation of penalty-phase issues beyond a cursory background investigation are not permitted for counsel retained for collateral attack on penalty phase.
Not analogous to a complete denial of counsel.
[Thou shalt not kill. - TMB]
Tuesday, August 23, 2011
Ninth Circuit -- MICHAEL NAPOLIELLO V. CIR
MICHAEL NAPOLIELLO V. CIR
Tax law - challenges to jurisdiction of the court based on defects in notice & procedure.
The correct deficiency notice was sent.
The determination of a partnership's viability falls within the definition of a partnership item.
Tax law - challenges to jurisdiction of the court based on defects in notice & procedure.
The correct deficiency notice was sent.
The determination of a partnership's viability falls within the definition of a partnership item.
Ninth Circuit -- WPP LUXEMBOURG GAMMA THREE SAR V. SPOT RUNNER, INC.
WPP LUXEMBOURG GAMMA THREE SAR V. SPOT RUNNER, INC.
Securities litigation - question is whether it was kosher to have sold stock while privately unloading it.
Specific duty to disclose in agreement trumps general duty to disclose. Waiver of this was partial and countermanded by the specific terms of the agreement.
Deft argument that waiver TKO's required scienter doesn't fly. Sufficiently pleaded.
No holding on whether heightened pleading applies to loss causation. Allegation that concealment caused the loss since revelation trashed the stock sufficeth unto the task.
Securities litigation - question is whether it was kosher to have sold stock while privately unloading it.
Specific duty to disclose in agreement trumps general duty to disclose. Waiver of this was partial and countermanded by the specific terms of the agreement.
Deft argument that waiver TKO's required scienter doesn't fly. Sufficiently pleaded.
No holding on whether heightened pleading applies to loss causation. Allegation that concealment caused the loss since revelation trashed the stock sufficeth unto the task.
Ninth Circuit -- VALERIE WITHROW V. BACHE HALSEY STUART SHIELD, IN
VALERIE WITHROW V. BACHE HALSEY STUART SHIELD, IN
ERISA SOL did not tick prior to flat denial of benefits.
Given both the ambiguity of the situation and claimant's actions and understanding of the situation, ERISA SOL didn't start to run any earlier than the explicit denial of benefits.
Contractual limitation doesn't apply to this type of claim.
ERISA SOL did not tick prior to flat denial of benefits.
Given both the ambiguity of the situation and claimant's actions and understanding of the situation, ERISA SOL didn't start to run any earlier than the explicit denial of benefits.
Contractual limitation doesn't apply to this type of claim.
Eighth Circuit -- United States v. Thomas Wohlman
United States v. Thomas Wohlman
"Enticement of minor" sentence upheld substantively and procedurally.
Sentencing court did not view guidelines as mandatory.
No error in consideration of uncharged or unacquitted conduct in finding that deft is a sex offender.
Harmless error in judge remarking that mitigation was not proved to a clear and convincing standard, as it wasn't proved to a lesser standard.
No error in consideration of uncharged pr0n possession when described in PSR.
No error in imposition of within-guidelines fine.
Not substantively unreasonable sentence.
Ineffective assistance best considered on collateral attack.
Concurrence: It's legit, but it 's a bit rough.
"Enticement of minor" sentence upheld substantively and procedurally.
Sentencing court did not view guidelines as mandatory.
No error in consideration of uncharged or unacquitted conduct in finding that deft is a sex offender.
Harmless error in judge remarking that mitigation was not proved to a clear and convincing standard, as it wasn't proved to a lesser standard.
No error in consideration of uncharged pr0n possession when described in PSR.
No error in imposition of within-guidelines fine.
Not substantively unreasonable sentence.
Ineffective assistance best considered on collateral attack.
Concurrence: It's legit, but it 's a bit rough.
Seventh Circuit -- USA v. Wosvaldo Villegas
USA v. Wosvaldo Villegas
Meeting with conspirators, bringing tools for the job, and planning to meet again is sufficient for a substantial step under the Hobbs Act.
Sufficient evidence that deft took a substantial step under Hobbs Act where he met with co-conspirators, brought license plates to be used, and planned another meeting. Recorded phone conversations suffice to establish threats of violence.
No error in not giving missing witness instruction where witness was available to deft, despite tension with defense team. Additionally, deft was permitted to refer to the no-call many times in closing.
No error in introduction of evidence on priors as deft opened door.
No error in sentencing bump for brandishing weapon, as it was foreseeable and foreseen. The fact that the CI did it is not relevant.
Meeting with conspirators, bringing tools for the job, and planning to meet again is sufficient for a substantial step under the Hobbs Act.
Sufficient evidence that deft took a substantial step under Hobbs Act where he met with co-conspirators, brought license plates to be used, and planned another meeting. Recorded phone conversations suffice to establish threats of violence.
No error in not giving missing witness instruction where witness was available to deft, despite tension with defense team. Additionally, deft was permitted to refer to the no-call many times in closing.
No error in introduction of evidence on priors as deft opened door.
No error in sentencing bump for brandishing weapon, as it was foreseeable and foreseen. The fact that the CI did it is not relevant.
Seventh Circuit -- USA v. Howard Baker
USA v. Howard Baker
Crim - priors fairly admitted, no sentencing error, sufficient evidence.
No error in admission of description of prior bad acts, as while prejudicial, not unfairly prejudicial.
No procedural or substantive error in within-guidelines sentence - judge did not unfairly consider priors.
Sufficient evidence of possession despite lack of any testimony that deft carried bags & no prints implicating deft.
Crim - priors fairly admitted, no sentencing error, sufficient evidence.
No error in admission of description of prior bad acts, as while prejudicial, not unfairly prejudicial.
No procedural or substantive error in within-guidelines sentence - judge did not unfairly consider priors.
Sufficient evidence of possession despite lack of any testimony that deft carried bags & no prints implicating deft.
Seventh Circuit -- Roselva Chaidez v. USA
Roselva Chaidez v. USA
Padilla's holding that not advising a client that plea deal will lead to deportation is a new rule, not an old rule applied to new facts, and therefore not retroactive to cases on collateral review.
Circuit split with Third flagged.
Review is on a writ of coram nobis as deft is not in custody.
Dissent - In context of Strickland, not a new rule; Language in Padilla signals that the Court anticipated retroactive application.
Padilla's holding that not advising a client that plea deal will lead to deportation is a new rule, not an old rule applied to new facts, and therefore not retroactive to cases on collateral review.
Circuit split with Third flagged.
Review is on a writ of coram nobis as deft is not in custody.
Dissent - In context of Strickland, not a new rule; Language in Padilla signals that the Court anticipated retroactive application.
Labels:
Circuit Split,
Immigration,
Ineffective Assistance
Seventh Circuit -- Tomas B. Torres-Rend v. Eric Holder
Tomas B. Torres-Rend v. Eric Holder
Immigration - petitioner not eligible for fraud waiver given plain language of statute; stop-time rule applies to all considerations of withholding of deportation.
Petitioner here needed the waiver given that his legitimating marriage was bigamous.
Even if lawful re-entry could un-stop the time, petitioner's entry was unlawful.
Immigration - petitioner not eligible for fraud waiver given plain language of statute; stop-time rule applies to all considerations of withholding of deportation.
Petitioner here needed the waiver given that his legitimating marriage was bigamous.
Even if lawful re-entry could un-stop the time, petitioner's entry was unlawful.
Seventh Circuit -- Michael Purcell v. USA
Michael Purcell v. USA
Wrongful death suit by family of serviceman who committed suicide barred by Feres exception in FTCA for injuries related to service.
Holding limited to facts of case - serviceman living on base reports suicidal impulse, counselors sent, but they allow decedent to visit restroom observed by a friend, decedent then kills self with gun hidden in waistband. Counselors faced subsequent military court proceeding.
Decedent was centerline Feres, according to court, as issues developed after enlistment, and events happened on base and subject to military regs.
Wrongful death suit by family of serviceman who committed suicide barred by Feres exception in FTCA for injuries related to service.
Holding limited to facts of case - serviceman living on base reports suicidal impulse, counselors sent, but they allow decedent to visit restroom observed by a friend, decedent then kills self with gun hidden in waistband. Counselors faced subsequent military court proceeding.
Decedent was centerline Feres, according to court, as issues developed after enlistment, and events happened on base and subject to military regs.
Sixth Circuit -- USA v. Karl Demmler
USA v. Karl Demmler
Crim - conviction and sentencing upheld.
No error in denial of entrapment defense, as record indicates deft was predisposed.
Defining "corruptly" as "improper conduct" is invited error, as deft proposed the instruction - no manifest injustice.
When a sentencing enhancement is predicated on deft's scienter, review is of a factual finding - clear error. Here, no error in court holding that deft knew, given scope.
Accessory after the fact need not know to a certainty that principal committed the crime, merely the scope of the crime that was involved.
Crim - conviction and sentencing upheld.
No error in denial of entrapment defense, as record indicates deft was predisposed.
Defining "corruptly" as "improper conduct" is invited error, as deft proposed the instruction - no manifest injustice.
When a sentencing enhancement is predicated on deft's scienter, review is of a factual finding - clear error. Here, no error in court holding that deft knew, given scope.
Accessory after the fact need not know to a certainty that principal committed the crime, merely the scope of the crime that was involved.
Sixth Circuit -- Richard Chesbrough v. VPA, P.C.
Richard Chesbrough v. VPA, P.C.
Dismissal of qui tam suit under False Claims Act for insufficient particularity in pleading fraud under 9(b).
No implicit warrant that studies and reports submitted for reimbursement aren't substandard - no regs specifically ban it.
If realtor can establish that any of the reports were completely non diagnostic - totally worthless - qui tam claim would lie, but here, plaintiffs have not established that any were actually submitted. Lax 9(a) should not apply to this situation.
No obligaiton under federal law for corporation to adhere to state rules.
Although 37(a)2(9) does not require presentment, it does require a showing that deft somehow ultimately prompted a presentment.
Dismissal of qui tam suit under False Claims Act for insufficient particularity in pleading fraud under 9(b).
No implicit warrant that studies and reports submitted for reimbursement aren't substandard - no regs specifically ban it.
If realtor can establish that any of the reports were completely non diagnostic - totally worthless - qui tam claim would lie, but here, plaintiffs have not established that any were actually submitted. Lax 9(a) should not apply to this situation.
No obligaiton under federal law for corporation to adhere to state rules.
Although 37(a)2(9) does not require presentment, it does require a showing that deft somehow ultimately prompted a presentment.
Third Circuit -- USA v. Prince Isaac
USA v. Prince Isaac
Although deft was restrained to defense table, no error in his not being able to move around in courtroom during pro se representation.
No error in pro se deft not being permitted to leave defense table to attend sidebar, where standby counsel attended and colloquy established that deft had no objection.
No error in charge incorrectly listing predicates for CCE conviction where balance of charge clarifies the confusion.
Plain error on gov't not filing notice that enhanced maximums were in play due to predicates. No holding on whether this is jurisdictional or not.
Misc. sentencing appeals discounted.
Although deft was restrained to defense table, no error in his not being able to move around in courtroom during pro se representation.
No error in pro se deft not being permitted to leave defense table to attend sidebar, where standby counsel attended and colloquy established that deft had no objection.
No error in charge incorrectly listing predicates for CCE conviction where balance of charge clarifies the confusion.
Plain error on gov't not filing notice that enhanced maximums were in play due to predicates. No holding on whether this is jurisdictional or not.
Misc. sentencing appeals discounted.
Third Circuit -- In Re: Mushroom Direct
In Re: Mushroom Direct
Prejudgment collateral order denying farmers an antitrust exception is not reviewable, as nothing bars it from being reviewed after final judgment.
As the statutory shield is a less than complete grant of immunity, defts are still subject to suit for anti-competitive activities. The traditional jurisdiction over collateral orders granting immunity does not apply.
Prejudgment collateral order denying farmers an antitrust exception is not reviewable, as nothing bars it from being reviewed after final judgment.
As the statutory shield is a less than complete grant of immunity, defts are still subject to suit for anti-competitive activities. The traditional jurisdiction over collateral orders granting immunity does not apply.
Third Circuit -- USA v. Ruth Arnao
USA v. Ruth Arnao
USA v. Vincent Fumo
Political corruption case - conviction upheld, sentencing remanded.
[Very complex opinons - this is just a quick parse that omits much. - TMB]
No error in introduction of evidence that deft violated state ethics statute, as theory of defense (on federal corruption charges) was that he had done nothing wrong.
No error in denial of retrial after juror posted to Twitter and Facebook during trial.
No abuse of discretion in finding that juror's discovery of deft's excluded priors wasn't substantially prejudicial.
Where court does not calculate guidelines ranges at time of sentence (?), challenge to departures is preserved for review - no need to prove plain error.
Error in exclusion of gov't estimate of losses, as they merely needed to be established by a preponderance, and deft didn't discredit.
Where loss calculation hinges on complex question of whether employee actually did work, and the court declines to rule given the compleity of the question, plain error.
Deduction of fair market value of building illicitly furnished and used as an office was abuse of discretion, as the property wasn't returned prior to charges being brought.
Where deft commissioned painting, no error in accepting appraised value, even though it was apparently unwanted and all prints are now in storage.
Error in refusal to apply charitable association sentencing bump.
Error in refusal to apply sophisticated means sentencing bump.
Error in court announcing departure in terms of months as opposed to in the terms of the sentencing guidelines.
Error in court not distinguishing departures from variances.
No error in order for prejudgment interest, as statute seeks to remedy victim's losses, and line of cases establishing it as a criminal penalty (and therefore barring PJ interest) is inapposite.
Codeft's sentence remanded on similar grounds.
Concur/dissent - absent objection preserving the exception, review of sentence can only be plain error. Transcript clearly reveals the grounds for departures; re-calculating ranges after departure is an unnecessary step; whole-record review indicates that this was done anyway. More on the Facebook/Twitter thing.
USA v. Vincent Fumo
Political corruption case - conviction upheld, sentencing remanded.
[Very complex opinons - this is just a quick parse that omits much. - TMB]
No error in introduction of evidence that deft violated state ethics statute, as theory of defense (on federal corruption charges) was that he had done nothing wrong.
No error in denial of retrial after juror posted to Twitter and Facebook during trial.
No abuse of discretion in finding that juror's discovery of deft's excluded priors wasn't substantially prejudicial.
Where court does not calculate guidelines ranges at time of sentence (?), challenge to departures is preserved for review - no need to prove plain error.
Error in exclusion of gov't estimate of losses, as they merely needed to be established by a preponderance, and deft didn't discredit.
Where loss calculation hinges on complex question of whether employee actually did work, and the court declines to rule given the compleity of the question, plain error.
Deduction of fair market value of building illicitly furnished and used as an office was abuse of discretion, as the property wasn't returned prior to charges being brought.
Where deft commissioned painting, no error in accepting appraised value, even though it was apparently unwanted and all prints are now in storage.
Error in refusal to apply charitable association sentencing bump.
Error in refusal to apply sophisticated means sentencing bump.
Error in court announcing departure in terms of months as opposed to in the terms of the sentencing guidelines.
Error in court not distinguishing departures from variances.
No error in order for prejudgment interest, as statute seeks to remedy victim's losses, and line of cases establishing it as a criminal penalty (and therefore barring PJ interest) is inapposite.
Codeft's sentence remanded on similar grounds.
Concur/dissent - absent objection preserving the exception, review of sentence can only be plain error. Transcript clearly reveals the grounds for departures; re-calculating ranges after departure is an unnecessary step; whole-record review indicates that this was done anyway. More on the Facebook/Twitter thing.
Third Circuit -- USA v. Jamaal Mike
USA v. Jamaal Mike
If you buy a gun in the Virgin Islands, sprint to register it.
No error in denial of use immunity where the claim would be a simple assertion of exoneration, subject to credibility analysis.
No error in finding that weapon was capable of discharge (element of statute) where gov't did not establish the fact through firing tests.
No error in denial of affirmative defense that deft intended to register the weapon (he was arrested on receipt, and statute permits acquisition where 'immediately' reported) as circumstances of transaction establish deft's lack of intent to register.
Concur/dissent: close statutory parsing of def'n of firearm, use immunity shoudl have been granted - the standard is similar to Brady, 'immedaite' registration element of statute is problematic.
If you buy a gun in the Virgin Islands, sprint to register it.
No error in denial of use immunity where the claim would be a simple assertion of exoneration, subject to credibility analysis.
No error in finding that weapon was capable of discharge (element of statute) where gov't did not establish the fact through firing tests.
No error in denial of affirmative defense that deft intended to register the weapon (he was arrested on receipt, and statute permits acquisition where 'immediately' reported) as circumstances of transaction establish deft's lack of intent to register.
Concur/dissent: close statutory parsing of def'n of firearm, use immunity shoudl have been granted - the standard is similar to Brady, 'immedaite' registration element of statute is problematic.
Third Circuit -- Caroline Behrend v. Comcast Corp
Caroline Behrend v. Comcast Corp
Antiturust class certification survives challenge to commonality. (Harms and remedy.)
Even in a per se claim, relevant geographic market might have to be established.
Individual households are too granular to be considered relevant markets, as statute mandates market of economic significance.
No clear error in court finding that comcast's aggregation of service providers created anticompetitive harms citywide, and that the city is therefore the relevant geographic market.
No clear error to court finding barriers to competition based on expert opinion as opposed to any on-the-ground competitive activity which suffered harm.
Hypothetical but-for economic model of market can serve to establish that the claims are reasonably susceptible of common proof.
Concur/dissent -- No compelling reason why class boundary should be coterminous with relevant geographic market, expert but/for model will be TKO'd under Daubert, so no commonality to remedy.
Antiturust class certification survives challenge to commonality. (Harms and remedy.)
Even in a per se claim, relevant geographic market might have to be established.
Individual households are too granular to be considered relevant markets, as statute mandates market of economic significance.
No clear error in court finding that comcast's aggregation of service providers created anticompetitive harms citywide, and that the city is therefore the relevant geographic market.
No clear error to court finding barriers to competition based on expert opinion as opposed to any on-the-ground competitive activity which suffered harm.
Hypothetical but-for economic model of market can serve to establish that the claims are reasonably susceptible of common proof.
Concur/dissent -- No compelling reason why class boundary should be coterminous with relevant geographic market, expert but/for model will be TKO'd under Daubert, so no commonality to remedy.
Second Circuit -- United States v. Nadirashvili (Solomonyan)
United States v. Nadirashvili (Solomonyan)
Sufficient evidence for firearms conspiracy where folks seemed to be in the know about things - remand for sentencing as wrong standard of proof was applied for conspiracy sentencing bump.
Sufficient evidence for firearms sale charge where prior to acting as intermediary, deft clearly indicates that something big is going down, and later seems to be in the know.
Where statute refers to firearms dealer, sufficient evidence for conviction where deft knew putative dealer had guns on hand.
Conspiracy-to-broker statute is not unconstitutionally vague with respect to a deft who was clearly brokerin' stuff.
Remand for resentencing, as conspiracy sentencing bumps not contemplated in the base level offense schedule need to be proved with reasonable certainty, not preponderance of the evidence.
Sufficient evidence for firearms conspiracy where folks seemed to be in the know about things - remand for sentencing as wrong standard of proof was applied for conspiracy sentencing bump.
Sufficient evidence for firearms sale charge where prior to acting as intermediary, deft clearly indicates that something big is going down, and later seems to be in the know.
Where statute refers to firearms dealer, sufficient evidence for conviction where deft knew putative dealer had guns on hand.
Conspiracy-to-broker statute is not unconstitutionally vague with respect to a deft who was clearly brokerin' stuff.
Remand for resentencing, as conspiracy sentencing bumps not contemplated in the base level offense schedule need to be proved with reasonable certainty, not preponderance of the evidence.
Second Circuit -- Fait v. Regions Financing Trust, et al.
Fait v. Regions Financing Trust, et al.
Securities action alleging misstatements - pleading is inadequate for not alleging both actual falsity and knowing misstatement.
Under Virginia Bankshares, statements of opinion are only actionable if actually false as to the material referred to and not the true opinions of the speaker - here, no plausible allegation in pleading that execs did not actually hold the opinion about the goodwill value of an acquisition.
As pleading does not allege that there is an objective criterion for determining the adequacy of loan reserves, pleading must suggest both falsity and dissembling.
Securities action alleging misstatements - pleading is inadequate for not alleging both actual falsity and knowing misstatement.
Under Virginia Bankshares, statements of opinion are only actionable if actually false as to the material referred to and not the true opinions of the speaker - here, no plausible allegation in pleading that execs did not actually hold the opinion about the goodwill value of an acquisition.
As pleading does not allege that there is an objective criterion for determining the adequacy of loan reserves, pleading must suggest both falsity and dissembling.
Monday, August 22, 2011
Federal Circuit -- AUGUST TECH CORP v. CAMTEK LTD
AUGUST TECH CORP v. CAMTEK LTD
Patent infringement finding vacated, as trial court incorrectly construed term "wafer."
In circuit printing, this can refer to multiple wafers. Deft preserved the argument by advancing a claim construction that could encompass multiple wafers.
Trial court correctly handled second claim, which TMB isn't even going to try to summarize.
Substantial evidence for nonobviousness finding.
When the on-sale date is questioned, the relevant threshold event is not the time it becomes patentable, but when it is conceived.
[Really, folks - don't rely on any of these summaries, but especially don't rely on the patent and tax stuff.]
Patent infringement finding vacated, as trial court incorrectly construed term "wafer."
In circuit printing, this can refer to multiple wafers. Deft preserved the argument by advancing a claim construction that could encompass multiple wafers.
Trial court correctly handled second claim, which TMB isn't even going to try to summarize.
Substantial evidence for nonobviousness finding.
When the on-sale date is questioned, the relevant threshold event is not the time it becomes patentable, but when it is conceived.
[Really, folks - don't rely on any of these summaries, but especially don't rely on the patent and tax stuff.]
Eleventh Circuit -- Roland L. Walker, et al vs CSX Transportation, Inc., et al
Roland L. Walker, et al vs CSX Transportation, Inc., et al
Absent proof that interior cargo doors could function as an effective fail-safe, no error in summary judgment for deft, as alleged failure to maintain was not a proximate cause.
Plaintiff had earlier introduced proof of this from an expert who was TKO'd under Daubert, and also offered trade group safety rules.
Absent proof that interior cargo doors could function as an effective fail-safe, no error in summary judgment for deft, as alleged failure to maintain was not a proximate cause.
Plaintiff had earlier introduced proof of this from an expert who was TKO'd under Daubert, and also offered trade group safety rules.
Ninth Cicuit -- USA V. HOBERT PARKER, JR.
USA V. HOBERT PARKER, JR.
Statute allowing prosecution for going onto a military base without permission cannot be used to prosecute a protester on the public road outside the gate, as the road was an easement granted to the state, and the statute requires absolute control.
Statute allowing prosecution for going onto a military base without permission cannot be used to prosecute a protester on the public road outside the gate, as the road was an easement granted to the state, and the statute requires absolute control.
Ninth Circuit -- FLEXIBLE LIFELINE SYSTEMS, INC V. PRECISION LIFT, INC.
FLEXIBLE LIFELINE SYSTEMS, INC V. PRECISION LIFT, INC.
No presumption of irreparable harm on showing of copyright infringement.
Ebay's requirement of actual injury applies to both permanent and temporary injunctions.
No presumption of irreparable harm on showing of copyright infringement.
Ebay's requirement of actual injury applies to both permanent and temporary injunctions.
Ninth Circuit -- HERSHEL ROSENBAUM V. WASHOE COUNTY
HERSHEL ROSENBAUM V. WASHOE COUNTY
S1983 Suit against Nevada policemen for arresting plaintiff for ticket scalping, as there's no law in Nevada against ticket scalping.
While the crime for which there is probable cause need not be the crime for which the arrest is made, there must be probable cause for some crime reasonably within the arsenal of crimes that officers enforce in the state.
Arresting suspect in front of kids and telling them that their dad had committed a crime and was going to jail was insufficiently conscience-shocking to qualify as a violation of family integrity DP.
S1983 Suit against Nevada policemen for arresting plaintiff for ticket scalping, as there's no law in Nevada against ticket scalping.
While the crime for which there is probable cause need not be the crime for which the arrest is made, there must be probable cause for some crime reasonably within the arsenal of crimes that officers enforce in the state.
Arresting suspect in front of kids and telling them that their dad had committed a crime and was going to jail was insufficiently conscience-shocking to qualify as a violation of family integrity DP.
Ninth Circuit -- MARIA TORRES V. CITY OF MADERA
MARIA TORRES V. CITY OF MADERA
No qualified immunity for police officer who killed handcuffed suspect in police car, thinking she was tasing him.
Error in summary judgment for deft, as jury could reasonably find that officer's belief that she was holding a taser to be unreasonable.
Totality of the circumstances test means that conduct can be unreasonable absent any specific caselaw spelling out the balance in a particular circumstance.
No qualified immunity for police officer who killed handcuffed suspect in police car, thinking she was tasing him.
Error in summary judgment for deft, as jury could reasonably find that officer's belief that she was holding a taser to be unreasonable.
Totality of the circumstances test means that conduct can be unreasonable absent any specific caselaw spelling out the balance in a particular circumstance.
Ninth Circuit -- USA V. CHRISTOPHER CLEMENTS
USA V. CHRISTOPHER CLEMENTS
Reversal of sex offender registration conviction, as Atty General's rulemaking holding SORNA to be retroactive did not comply with the APA.
Dissent - Should stay until Scotus rules on whether SORNA was retroactive even before the AG's rule.
Reversal of sex offender registration conviction, as Atty General's rulemaking holding SORNA to be retroactive did not comply with the APA.
Dissent - Should stay until Scotus rules on whether SORNA was retroactive even before the AG's rule.
Ninth Circuit -- STEPHEN STEARNS V. TICKETMASTER CORP
STEPHEN STEARNS V. TICKETMASTER CORP
Reversal of denial of class certification for consumers who incurred recurring charges on their credit card through a program on Tickemaster's website.
Error in denial under typicality, intervening caselaw establishes that the statute requires likelihood of deception, not individual proof of causation.
Error in denial of class for violation of state unfair practices law, as there is a presumption of reliance established where materiality of misleading statement is established.
Notice requirement does not require that the notice inform deft that class action is impending.
No abuse of discretion in denying class for EFTA claim, as different means of payment (credit/debit) might skew damage award calculation.
Reversal of denial of class certification for consumers who incurred recurring charges on their credit card through a program on Tickemaster's website.
Error in denial under typicality, intervening caselaw establishes that the statute requires likelihood of deception, not individual proof of causation.
Error in denial of class for violation of state unfair practices law, as there is a presumption of reliance established where materiality of misleading statement is established.
Notice requirement does not require that the notice inform deft that class action is impending.
No abuse of discretion in denying class for EFTA claim, as different means of payment (credit/debit) might skew damage award calculation.
Seventh Circuit -- USA v. Randall Knope
USA v. Randall Knope
Rated-R opinon in which conviction for child pr0n and enticement of a minor is upheld.
Asking deft in back of police car where he lives is insufficient to trigger Miranda protection for subsequent volunteered statements.
No error in trial court finding that consent to search of residence was voluntary.
Where deft correctly gives address, but police officer incorrectly records it on the consent form, the consent is still valid.
Trial court's under-explanation of admission of prior bad acts was harmless error.
No error in court not giving free speech instruction saying that adult pr0n was protected, as it might prompt presumption that the pr0n was adult pr0n.
No error in denial of substantial step instruction where enticement instruction covered the same ground.
No error in denial of good faith instruction, as the ground was covered by the 'knowingly' instruction.
No error in denial of entrapment defense instruction where deft doesn't prove inducement.
No error in denial of theory of defense instruction holding that deft thought no actual minors were involved in the pr0n, as (1) the subject was covered in the general instruction of the offense and (2) no suggestion that images were not actual minors.
No error in denial of theory of defense instruction that deft was leaving the Walgreen's parking lot, not pulling in, as it might have misled jury into thinking that going to the parking lot was not a substantial step.
Rated-R opinon in which conviction for child pr0n and enticement of a minor is upheld.
Asking deft in back of police car where he lives is insufficient to trigger Miranda protection for subsequent volunteered statements.
No error in trial court finding that consent to search of residence was voluntary.
Where deft correctly gives address, but police officer incorrectly records it on the consent form, the consent is still valid.
Trial court's under-explanation of admission of prior bad acts was harmless error.
No error in court not giving free speech instruction saying that adult pr0n was protected, as it might prompt presumption that the pr0n was adult pr0n.
No error in denial of substantial step instruction where enticement instruction covered the same ground.
No error in denial of good faith instruction, as the ground was covered by the 'knowingly' instruction.
No error in denial of entrapment defense instruction where deft doesn't prove inducement.
No error in denial of theory of defense instruction holding that deft thought no actual minors were involved in the pr0n, as (1) the subject was covered in the general instruction of the offense and (2) no suggestion that images were not actual minors.
No error in denial of theory of defense instruction that deft was leaving the Walgreen's parking lot, not pulling in, as it might have misled jury into thinking that going to the parking lot was not a substantial step.
Sixth Circuit -- Denise Walker v. Danny Davis
Denise Walker v. Danny Davis
Policeman who (allegedly intentionally) collided with motorcyclist during low-speed chase (<60 mph) across field doesn't get qualified immunity, as the motorcyclist wasn't a threat to anyone. No need for there to have been caselaw establishing the don't-ram-motorcycles-in-fields rule prior to offense.
Dissent: the decision to fee endangered the public, other circuits have held that colliding with a fleeing vehicle is kosher.
Policeman who (allegedly intentionally) collided with motorcyclist during low-speed chase (<60 mph) across field doesn't get qualified immunity, as the motorcyclist wasn't a threat to anyone. No need for there to have been caselaw establishing the don't-ram-motorcycles-in-fields rule prior to offense.
Dissent: the decision to fee endangered the public, other circuits have held that colliding with a fleeing vehicle is kosher.
Sixth Circuit -- Montgomery v. Bobby
Montgomery v. Bobby
Court reverses habeus grant for Brady violation in death penalty case.
Although the report that witnesses had seen victim alive after the time State argued that they had been killed was favorable to deft and suppressed, the question is materiality - did it prejudice the proceeding. Here, the court holds that the other evidence of guilt was too overwhelming. (Separately, after hearing that habeus had been granted on these grounds, witnesses had retracted.) Not in for impeachment, given other substantial impeachments against witness.
No error in not DQ'ing a juror who wrote the court a note explaining that she had been in psychiatric treatment and had experienced a dream about the defense psychiatrist as the devil.
No reversible error in refusal to change venue, as petitioner has not demonstrated manifest error - deep and bitter prejudice throughout the community.
No Brady violation in nondisclosure of withdrawal of plea deal from non-testifying witness as not properly presented in District habeus petition.
Concurrence: the suppressed report has zero exculpatory value, as deft clearly committed the crime.
Special Concurrence: Dissent is right on Brady claim, but no violation of clearly established federal law, as state court could reasonably have determined it to be non-material.
Dissent - Coourt incorrectly confuses Strickland's presumption of trial court regularity with Brady's implication that suppression of the evidence is enough of an irregularity to pop that bubble.
Dissent: I agree.
Dissent: Majority mis-characterizes facts, deference is too high - prevents painstaking search for constitutional errors. By contrasting reasonable probability with reasonable possibility, majority gives a false spin to the former - the burden is lighter than that. Suppressed report wasn't cumulative, as it changed the game.
[Thou shalt not kill. - TMB]
Court reverses habeus grant for Brady violation in death penalty case.
Although the report that witnesses had seen victim alive after the time State argued that they had been killed was favorable to deft and suppressed, the question is materiality - did it prejudice the proceeding. Here, the court holds that the other evidence of guilt was too overwhelming. (Separately, after hearing that habeus had been granted on these grounds, witnesses had retracted.) Not in for impeachment, given other substantial impeachments against witness.
No error in not DQ'ing a juror who wrote the court a note explaining that she had been in psychiatric treatment and had experienced a dream about the defense psychiatrist as the devil.
No reversible error in refusal to change venue, as petitioner has not demonstrated manifest error - deep and bitter prejudice throughout the community.
No Brady violation in nondisclosure of withdrawal of plea deal from non-testifying witness as not properly presented in District habeus petition.
Concurrence: the suppressed report has zero exculpatory value, as deft clearly committed the crime.
Special Concurrence: Dissent is right on Brady claim, but no violation of clearly established federal law, as state court could reasonably have determined it to be non-material.
Dissent - Coourt incorrectly confuses Strickland's presumption of trial court regularity with Brady's implication that suppression of the evidence is enough of an irregularity to pop that bubble.
Dissent: I agree.
Dissent: Majority mis-characterizes facts, deference is too high - prevents painstaking search for constitutional errors. By contrasting reasonable probability with reasonable possibility, majority gives a false spin to the former - the burden is lighter than that. Suppressed report wasn't cumulative, as it changed the game.
[Thou shalt not kill. - TMB]
Fifth Circuit -- Godfrey Mark v. Rick Thaler, Director
Godfrey Mark v. Rick Thaler, Director
Prisoner seeks federal habeus review - the issue is whether the AEDPA clock runs from the granting of petitioner's motion to dismiss his direct appeals, or from the end of the time he would have had to appeal that decision. Court says the latter.
A ruling dismissing a case may be appealed by any party for thirty days - the issue is not whether it would have been successful, but whether it could have been filed.
General rule of practice that appeals dismissed on petitioner's motion are treated as if they had never been filed is a federal rule, not a Texas one.
Dissent - contrary caselaw, some from other Circuits, holding that once a direct appeal is effectively final, the clock runs.
Prisoner seeks federal habeus review - the issue is whether the AEDPA clock runs from the granting of petitioner's motion to dismiss his direct appeals, or from the end of the time he would have had to appeal that decision. Court says the latter.
A ruling dismissing a case may be appealed by any party for thirty days - the issue is not whether it would have been successful, but whether it could have been filed.
General rule of practice that appeals dismissed on petitioner's motion are treated as if they had never been filed is a federal rule, not a Texas one.
Dissent - contrary caselaw, some from other Circuits, holding that once a direct appeal is effectively final, the clock runs.
Fourth Circuit -- Harold Dewhurst v. Century Aluminum Company
Harold Dewhurst v. Century Aluminum Company
Retiree benefits do not extend beyond the termination of the CBA where the agreement limits them to the duration of the CBA.
No error in Distract Court denial of preliminary injunciton.
There is no legal presumption that benefits vest and continue - courts must interpret the contract.
Employer need not reserve right in agreement to alter or terminate coverage for the coverage to terminate with the CBA.
Language indicating that pension plan benefits vested does not indicate that health plan dose the same, even where pension plan is a condition precedent for health benefits. It suggests the opposite - exclusio alterius.
Retiree benefits do not extend beyond the termination of the CBA where the agreement limits them to the duration of the CBA.
No error in Distract Court denial of preliminary injunciton.
There is no legal presumption that benefits vest and continue - courts must interpret the contract.
Employer need not reserve right in agreement to alter or terminate coverage for the coverage to terminate with the CBA.
Language indicating that pension plan benefits vested does not indicate that health plan dose the same, even where pension plan is a condition precedent for health benefits. It suggests the opposite - exclusio alterius.
Second Circuit -- United States v. Celaj
United States v. Celaj
In this Hobbs Act prosecution, the required interstate commerce element was established by stipulation, which the deft now argues to be merely a generic statement of best marihuana practices.
Jury could reasonably conclude from (1) stipulation that MJ is generally grown out of state and (2) deft's admission that he dealt MJ that the required jurisdictional de minimis effect on interstate commerce was proved.
Although deft was never in the presence of attempted robbery victim, the planning was sufficient for NY "dangerous proximity" rule - concrete step beyond mere preparation.
In this Hobbs Act prosecution, the required interstate commerce element was established by stipulation, which the deft now argues to be merely a generic statement of best marihuana practices.
Jury could reasonably conclude from (1) stipulation that MJ is generally grown out of state and (2) deft's admission that he dealt MJ that the required jurisdictional de minimis effect on interstate commerce was proved.
Although deft was never in the presence of attempted robbery victim, the planning was sufficient for NY "dangerous proximity" rule - concrete step beyond mere preparation.
Friday, August 19, 2011
Federal Circuit -- RIVERA V. DEPT. OF VETERANS AFFAIRS
RIVERA V. DEPT. OF VETERANS AFFAIRS
Letter by claimant protesting denial of claim met the statutory requirements for a valid appeal.
Letter by claimant protesting denial of claim met the statutory requirements for a valid appeal.
DC Circuit -- USA v. Brandon Laureys
USA v. Brandon Laureys
Improper inducement of a minor can be proven when deft communicates with a third party as opposed to the minor.
Remand for ineffective assistance evidentiary hearing.
No plain error in supervised release restrictions banning cameras, barring deft from areas where pr0n is sold, requiring internet restrictions.
Improper inducement of a minor can be proven when deft communicates with a third party as opposed to the minor.
Remand for ineffective assistance evidentiary hearing.
No plain error in supervised release restrictions banning cameras, barring deft from areas where pr0n is sold, requiring internet restrictions.
Tenth Circuit -- The City of Riviera Beach vs That Certain Unnamed Gray, Two-Story Vessel Approximately Fifty-Seven Feet in Length, Fane Lozman
The City of Riviera Beach vs That Certain Unnamed Gray, Two-Story Vessel Approximately Fifty-Seven Feet in Length, Fane Lozman
Although deft claims the structure is a floating non-seafaring shack, Circuit precedent holds it to be a vessel. Circuit split flagged.
No error in district court finding of maritime lien for unpaid dockage.
Suspicious timing not enough to avoid summary judgment on 1A retaliation claim.
City issuance of a lease does not judicially estop the bringing of a maritime lien.
Bar of earlier eviction action due to retaliatory nature does not collaterally estop present action.
Although deft claims the structure is a floating non-seafaring shack, Circuit precedent holds it to be a vessel. Circuit split flagged.
No error in district court finding of maritime lien for unpaid dockage.
Suspicious timing not enough to avoid summary judgment on 1A retaliation claim.
City issuance of a lease does not judicially estop the bringing of a maritime lien.
Bar of earlier eviction action due to retaliatory nature does not collaterally estop present action.
Tenth Circuit -- Sidney Gipson, William McGuirk, et al vs Jefferson County Sheriff's Office, in his official capacity, State of Alabama
Sidney Gipson, William McGuirk, et al vs Jefferson County Sheriff's Office, in his official capacity, State of Alabama
Challenge to law dismissed as moot, as the law has become irrelevant.
Challenge to law dismissed as moot, as the law has become irrelevant.
Ninth Circuit -- CENTER FOR ENVIRONMENTAL LAW A V. UNITED STATES BUREAU OF RECLAMATION
CENTER FOR ENVIRONMENTAL LAW A V. UNITED STATES BUREAU OF RECLAMATION
Drawdown of water from lake under NEPA upheld under hard look review. (The agency took a sufficiently hard look, according to the court -- not Overton Park hard look.)
Drawdown of water from lake under NEPA upheld under hard look review. (The agency took a sufficiently hard look, according to the court -- not Overton Park hard look.)
Ninth Circuit -- YAKIMA VALLEY MEMORIAL HOSPITA V. WASHINGTON STATE DEPARTMENT OF HEALTH
YAKIMA VALLEY MEMORIAL HOSPITA V. WASHINGTON STATE DEPARTMENT OF HEALTH
Regulatory regime issues permits for hospitals to perform certain elective procedures, based on the community's need for a hospital to do such things. Challenged, viz -
The fact that the hospitals can adjust the number of elective procedures performed does not mean that the rule is not a unilateral restriction - the permit scheme is a simple barrier to entry, unilaterally imposed by the government, and thereforenot preemepted by the Sherman Act.
In-state hospital has standing to challenge under Dormant Commerce Clause.
Regulatory regime issues permits for hospitals to perform certain elective procedures, based on the community's need for a hospital to do such things. Challenged, viz -
The fact that the hospitals can adjust the number of elective procedures performed does not mean that the rule is not a unilateral restriction - the permit scheme is a simple barrier to entry, unilaterally imposed by the government, and thereforenot preemepted by the Sherman Act.
In-state hospital has standing to challenge under Dormant Commerce Clause.
Ninth Circuit -- C.F. V. CAPISTRANO UNIFIED SCHOOL DISTRICT
C.F. V. CAPISTRANO UNIFIED SCHOOL DISTRICT
No error in allowing plaintiff to amend schedule & deft to file new response after summary judgment substantially impacting theory of the case.
Qualified immunity from Establishment Clause challenge for history teacher who allegedly made disparaging statements in AP HIstory about Christianity.
No error in allowing plaintiff to amend schedule & deft to file new response after summary judgment substantially impacting theory of the case.
Qualified immunity from Establishment Clause challenge for history teacher who allegedly made disparaging statements in AP HIstory about Christianity.
Ninth Circuit -- IN RE: BLUETOOTH HEADSET PROD.
IN RE: BLUETOOTH HEADSET PROD.
100K to class and 800K to counsel raises an inference of unfairness - record does not dispel the thought that counsel tossed class under the proverbial bus.
100K to class and 800K to counsel raises an inference of unfairness - record does not dispel the thought that counsel tossed class under the proverbial bus.
Ninth Circuit -- REBECCA RICKLEY V. COUNTY OF LOS ANGELES
REBECCA RICKLEY V. COUNTY OF LOS ANGELES
S1988 Fees to attorney-spouses of original counsel upheld, as they are sufficiently independent and detached, and the alternative is unworkable.
S1988 Fees to attorney-spouses of original counsel upheld, as they are sufficiently independent and detached, and the alternative is unworkable.
Ninth Circuit -- FLEISCHER STUDIOS, INC. V. A.V.E.L.A., INC.
FLEISCHER STUDIOS, INC. V. A.V.E.L.A., INC.
Doctrine of indivisibility of copyrights does not mean that an explicit transfer of film rights while retaining character rights by a separate and nonspecific clause implies that transferor did not wish to retain character rights.
Transferor's subsequent licensing of character does not mean that they thought to retain character in an earlier deal.
No abuse of discretion in declining to consider evidence submitted after FRCP deadline.
Appeals court should not take judicial notice of untimely submitted (to trial court) trademark registration.
Fractured trademark ownership is not a per se bar to a finding of secondary meaning.
Dissent - Title to the character passed.
Doctrine of indivisibility of copyrights does not mean that an explicit transfer of film rights while retaining character rights by a separate and nonspecific clause implies that transferor did not wish to retain character rights.
Transferor's subsequent licensing of character does not mean that they thought to retain character in an earlier deal.
No abuse of discretion in declining to consider evidence submitted after FRCP deadline.
Appeals court should not take judicial notice of untimely submitted (to trial court) trademark registration.
Fractured trademark ownership is not a per se bar to a finding of secondary meaning.
Dissent - Title to the character passed.
Ninth Circuit -- M.H. V. USA
M.H. V. USA
Under the Required Records Doctrine (essentially regulatory, customarily kept, public in some sense), the Fifth Amendment does not bar compliance with a subpoena asking for information about Swiss bank accounts.
Under the Required Records Doctrine (essentially regulatory, customarily kept, public in some sense), the Fifth Amendment does not bar compliance with a subpoena asking for information about Swiss bank accounts.
Ninth Circuit -- USA V. GEARY WATERS, JR.
USA V. GEARY WATERS, JR.
Where sentencing court sentences according to offense level and not the career offender guideline, subsequent revisions in the offense level statutory scheme do not justify a downward revision past the career offender guidelines, so long as the sentencing court found that the career offender terms were triggered (while not making them the reason for decision).
A sentence reduction hearing cannot be used to challenge a career offender finding.
Where sentencing court sentences according to offense level and not the career offender guideline, subsequent revisions in the offense level statutory scheme do not justify a downward revision past the career offender guidelines, so long as the sentencing court found that the career offender terms were triggered (while not making them the reason for decision).
A sentence reduction hearing cannot be used to challenge a career offender finding.
Ninth Circuit -- RUSSELL JOHNSON, III V. LUCENT TECHNOLOGIES INC.
Ninth Circuit -- YAO REN V. ERIC H. HOLDER JR.
YAO REN V. ERIC H. HOLDER JR.
Although ILJ's adverse credibility decisions were not supported by substantial evidence (e.g. asking Chinese Christian to recite "the Lord's Prayer"), when petitioner didn't provide corroborating evidence within time frame, the claim was properly forfeited.
Although ILJ's adverse credibility decisions were not supported by substantial evidence (e.g. asking Chinese Christian to recite "the Lord's Prayer"), when petitioner didn't provide corroborating evidence within time frame, the claim was properly forfeited.
Ninth Circuit -- MCCOY V. CHASE MANHATTAN BANK
MCCOY V. CHASE MANHATTAN BANK
After Scotus remand, lower court dismissal of TILA and state law claims which challenged retroactive imposition of credit card fees is upheld.
After Scotus remand, lower court dismissal of TILA and state law claims which challenged retroactive imposition of credit card fees is upheld.
Ninth Circuit -- DELGADO V. HOLDER
DELGADO V. HOLDER
Courts have jurisdiction to review agency definition of "particularly serious crime" warranting withholding of removal.
Under Chevron deference, BIA can set threshold for "particularly serious crime" by either rule or adjudication.
Concur/special concur: BIA rules & precedent foreclose withholding of removal for a DUI.
Courts have jurisdiction to review agency definition of "particularly serious crime" warranting withholding of removal.
Under Chevron deference, BIA can set threshold for "particularly serious crime" by either rule or adjudication.
Concur/special concur: BIA rules & precedent foreclose withholding of removal for a DUI.
Eighth Circuit -- Interlachen Harriet Investment v. Douglas A. Kelley
Interlachen Harriet Investment v. Douglas A. Kelley
Sufficient evidence in the record for bankruptcy settlement, although not enumerated by court.
Drexel factors satisfied.
Sufficient evidence in the record for bankruptcy settlement, although not enumerated by court.
Drexel factors satisfied.
Eighth Circuit -- Federal Trade Commission v. Lundbeck, Inc.
Federal Trade Commission v. Lundbeck, Inc.
No error in District Court finding that there was no pharma market for antitrust purposes, since experts testified that cost did not drive their decisions as to which of several similar drugs to use.
Functionally similar products can be in different markets.
No error in District Court not crediting expert claiming marginal buyers could affect costs.
Manufacturer's own documents indicating market are not dispositive.
Concurrence - Docs never choose drugs based on economic motives - but no reversible error in trial court holdings.
No error in District Court finding that there was no pharma market for antitrust purposes, since experts testified that cost did not drive their decisions as to which of several similar drugs to use.
Functionally similar products can be in different markets.
No error in District Court not crediting expert claiming marginal buyers could affect costs.
Manufacturer's own documents indicating market are not dispositive.
Concurrence - Docs never choose drugs based on economic motives - but no reversible error in trial court holdings.
Seventh Circuit -- M. C. Winston v. Ana Boatwright
M. C. Winston v. Ana Boatwright
When deft's lawyer deliberately uses all peremptory strikes to keep males off of sexual assault jury, it's ineffective assistance - but as no clear caselaw on how to assess prejudice from error, no error in state denial of habeus.
(While Batson would justify automatic reversal, and therefore the writ, the fact that deft's counsel made the choice triggers Strickland analysis, which requires a showing of prejudice.)
When deft's lawyer deliberately uses all peremptory strikes to keep males off of sexual assault jury, it's ineffective assistance - but as no clear caselaw on how to assess prejudice from error, no error in state denial of habeus.
(While Batson would justify automatic reversal, and therefore the writ, the fact that deft's counsel made the choice triggers Strickland analysis, which requires a showing of prejudice.)
Labels:
AEDPA,
Habeas,
Ineffective Assistance,
Jury Selection
Seventh Circuit -- USA v. Nikole Sakellarion
USA v. Nikole Sakellarion
Where additional priors come to light after plea deal and deft subsequently tests positive for drugs, appeals waiver in plea deal bars appellate consideration of alleged government bad faith in the drug testing/subsequent negotiations.
Where additional priors come to light after plea deal and deft subsequently tests positive for drugs, appeals waiver in plea deal bars appellate consideration of alleged government bad faith in the drug testing/subsequent negotiations.
Seventh Circuit -- International Union, v. ZF Boge
International Union, v. ZF Boge Elastmetal
Absent other indications in the text, where an agreement it reached modifying the terms of a CBA, the interstitial agreement expires with the CBA - no terms bind the parties past the agreement of a new CBA.
No latent ambiguity in agreement which would justify looking beyond the text.
Absent other indications in the text, where an agreement it reached modifying the terms of a CBA, the interstitial agreement expires with the CBA - no terms bind the parties past the agreement of a new CBA.
No latent ambiguity in agreement which would justify looking beyond the text.
Sixth Circuit -- USA v. Calvin Boender
USA v. Calvin Boender
No requirement to prove a specific quid pro quo for conviction on corrupt political giving statute. Circuit split lightly noted .
Crime/Fraud exception to privilege - no hard evidence required to hold a review in camera, merely that a reasonable person might hold a good faith belief that it was probative.
As for government attendance at the in camera hearings, courts should consider (1) presumption against ex parte proceedings (2) relative efficiency of multiparty proceeding, and (3) nature of evidence to be examined.
Statute barring false name contributions also bars straw man contributions.
No requirement to prove a specific quid pro quo for conviction on corrupt political giving statute. Circuit split lightly noted .
Crime/Fraud exception to privilege - no hard evidence required to hold a review in camera, merely that a reasonable person might hold a good faith belief that it was probative.
As for government attendance at the in camera hearings, courts should consider (1) presumption against ex parte proceedings (2) relative efficiency of multiparty proceeding, and (3) nature of evidence to be examined.
Statute barring false name contributions also bars straw man contributions.
Sixth Circuit -- Carol Metz v. Unizan Bank
Carol Metz v. Unizan Bank
James Loyd v. Huntington National Bank
Billy Blair v. Bank One
David McKinney v. Nick Ludwick
A UCC "properly payable" claim against the bank issuer of checks used in a Ponzi scheme is not considered an action for conversion under the Ohio statute of limitations. (Which would have ticked from discovery, not conduct.)
SOL ran from the first discovery that something wasn't right (cessation of interest payments), not the full discovery of facts.
Though plaintiffs did not caption petition as securities fraud, the actual nature of the investments means that the securities fraud statutory SOL applies, not the common law rule.
Court retains jurisdiction over claims after denial of class certification.
Settlement of claims against a party releases any respondeat superior claims against their supervisor.
James Loyd v. Huntington National Bank
Billy Blair v. Bank One
David McKinney v. Nick Ludwick
A UCC "properly payable" claim against the bank issuer of checks used in a Ponzi scheme is not considered an action for conversion under the Ohio statute of limitations. (Which would have ticked from discovery, not conduct.)
SOL ran from the first discovery that something wasn't right (cessation of interest payments), not the full discovery of facts.
Though plaintiffs did not caption petition as securities fraud, the actual nature of the investments means that the securities fraud statutory SOL applies, not the common law rule.
Court retains jurisdiction over claims after denial of class certification.
Settlement of claims against a party releases any respondeat superior claims against their supervisor.
Third Circuit -- Mark Renfro v. Unisys Corp
Mark Renfro v. Unisys Corp
Dismissal of claim against ERISA directed trustee upheld, as, according to the plan paperwork, their fiduciary duty did not extend to the challenged conduct.
By pleading that directed trustee didn't exercise proper oversight, plaintiff's TKO the necessary scienter.
Statute does not permit recovery from non-fiduciaries involved in fiduciary breach.
Courts can pierce pleadings sufficiently to examine the mix of investment options offered by trustee - instant plan is kosher.
Dismissal of claim against ERISA directed trustee upheld, as, according to the plan paperwork, their fiduciary duty did not extend to the challenged conduct.
By pleading that directed trustee didn't exercise proper oversight, plaintiff's TKO the necessary scienter.
Statute does not permit recovery from non-fiduciaries involved in fiduciary breach.
Courts can pierce pleadings sufficiently to examine the mix of investment options offered by trustee - instant plan is kosher.
First Circuit -- Dickow v. US
Dickow v. US
IRS regs which denied a second 6 month extension upheld under Chevron deference.
Neither equitable estoppel nor equitable tolling are available for tax deadlines. (The latter soewhat dicta-ish.)
Gov't silence in response to deadline extension application insufficient to create estoppel.
IRS regs which denied a second 6 month extension upheld under Chevron deference.
Neither equitable estoppel nor equitable tolling are available for tax deadlines. (The latter soewhat dicta-ish.)
Gov't silence in response to deadline extension application insufficient to create estoppel.
First Circuit -- US v. Vargas-Davila
US v. Vargas-Davila
Within-guidelines sentence was not substantively unreasonable. The Tempest is quoted - poetry literally being used to imprison others.
Within-guidelines sentence was not substantively unreasonable. The Tempest is quoted - poetry literally being used to imprison others.
First Circuit -- Soto-Torres v. Fraticelli
Soto-Torres v. Fraticelli
Pleadings in Bivens action against the head of FBI local office insufficient - there is no de facto supervisory liability, so specific acts, omissions, and knowledge must be in pleadings.
Pleadings in Bivens action against the head of FBI local office insufficient - there is no de facto supervisory liability, so specific acts, omissions, and knowledge must be in pleadings.
First Circuit -- Doe v. Newburyport MA Public Schools
Doe v. Newburyport MA Public Schools
When parents seek compensation for alternative educational setup under IDEA, a subsequent move out of the school district does not moot their claim for costs incurred before the move or for fees on actions on which they prevailed prior to the move.
When parents seek compensation for alternative educational setup under IDEA, a subsequent move out of the school district does not moot their claim for costs incurred before the move or for fees on actions on which they prevailed prior to the move.
Second Circuit -- Amador v. Superintendents of Dep’t of Corr. Servs.
Amador v. Superintendents of Dep’t of Corr. Servs.
Where jurisdiction over claims is only granted contingently, a higher standard applies to pendant and ancillary claims tied to the case - the court here declines to review interlocutory rulings which limited recoveries of certain members of the putative class.
Error in dismissal of claims of released prisoners as moot, since they were capable of repetition yet evading review.
Prisoner's lack of exhaustion of internal remedies not excused by estoppel, as there was insufficient dissuasion from prison administration to the filing of the full complaint.
Prisoner claim that there was insufficient protection was sufficient to constitute a complaint about systems and procedures.
Where jurisdiction over claims is only granted contingently, a higher standard applies to pendant and ancillary claims tied to the case - the court here declines to review interlocutory rulings which limited recoveries of certain members of the putative class.
Error in dismissal of claims of released prisoners as moot, since they were capable of repetition yet evading review.
Prisoner's lack of exhaustion of internal remedies not excused by estoppel, as there was insufficient dissuasion from prison administration to the filing of the full complaint.
Prisoner claim that there was insufficient protection was sufficient to constitute a complaint about systems and procedures.
Second Circuit -- Federal Trade Commission v. Bronson Partners, LLC
Federal Trade Commission v. Bronson Partners, LLC
False advertising - Section 13(b) of the FTC Act permits not merely injunctive relief, but also ancillary remedies, incl. disgorgement.
Extensive discussion of remedies in law v. equity.
Disgorgement can function as an equitable remedy - no tracing to individual victims need be established.
Disgorgement should be of the gross takings, not the net.
False advertising - Section 13(b) of the FTC Act permits not merely injunctive relief, but also ancillary remedies, incl. disgorgement.
Extensive discussion of remedies in law v. equity.
Disgorgement can function as an equitable remedy - no tracing to individual victims need be established.
Disgorgement should be of the gross takings, not the net.
Second Circuit -- USA v. Echeverry
USA v. Echeverry
Sentencing bump for discharge of a weapon upheld despite the fact that the defts gun was grabbed by the victim, who then shot the deft's accomplice.
Reasoning: Drafting in passive voice negatives intent, Recent Scotus decision somewhat on point.
Sentencing bump for discharge of a weapon upheld despite the fact that the defts gun was grabbed by the victim, who then shot the deft's accomplice.
Reasoning: Drafting in passive voice negatives intent, Recent Scotus decision somewhat on point.
Thursday, August 18, 2011
Eighth Circuit -- Buddy Rynders v. Larry Williams
Buddy Rynders v. Larry Williams
Free Speech claim strong enough to survive summary judgment where person doing the firiing allegedly said it was because of the free speakin'.
FMLA claim similarly strong as to notification of supervisor in official capacity, but not necessarily in personal capacity.
Parial dissent - FMLA notice was stautorily inadequate.
Free Speech claim strong enough to survive summary judgment where person doing the firiing allegedly said it was because of the free speakin'.
FMLA claim similarly strong as to notification of supervisor in official capacity, but not necessarily in personal capacity.
Parial dissent - FMLA notice was stautorily inadequate.
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