Third Circuit -- USA v. Wayne Bryant

[Third Circuit server is down at this writing.]



USA v. Wayne Bryant

First Circuit -- EMC Corp v. Arturi

Under Massachusetts law, court cannot impose a post-employment equitable remedy beyond the length of time agreed upon in the employment agreement.


EMC Corp v. Arturi

First Circuit -- Glik v. Cunniffe

The filming of government officials in a public space is a clearly established right under 1A - court did not err in denying qualified immunity.

Contradicts unpublished decision from the Fourth Circuit.

Despite the fact that the recording was done with a cell phone, sufficient notice for the police officers to have actual knowledge of the recording , defeating any violation of the Massachusetts wiretap statute.  No immunity for 4A violation.


Glik v. Cunniffe

First Circuit -- Martinez-Burgos v. Guayama Corp.

Where other performance-related factors would justify the decision not to hire, no error in dismissal of Title VII pregnancy- based hiring claim.

 Claim based on decision not to rehire after pregnancy TKO'd by fact that replacement had outperformed her in her absence.

(Full disclosure - your correspondent worked for the same temp firm many years ago.)


Martinez-Burgos v. Guayama Corp.

First Circuit -- Donald v. Spencer

District Court correctly denied discovery request for DNA examination, given the overwhelming evidence for conviction.

AEDPA restriction of habeus review to existing Scotus precedent is not unconstitutional.

Donald v. Spencer

First Circuit -- Perez-Cordero v. Wal-mart Puerto Rico, Inc.

District court's dismissal of Title VII suit for  lack of severity and pervasiveness reversed - plaintiff had raised genuine issues of material fact.

Error in dismissal of retaliation claim as well, as deft has not explained actions of managers and no explanation is evident in the record. 

Perez-Cordero v. Wal-mart Puerto Rico, Inc.

Second Circuit -- Interpharm, Inc. v. Wells Fargo Bank, N.A.

 Where a lender has the right to cut off credit and demand repayment, threats to do so are not wrongful, and therefore not grounds for a claim of economic duress.


No threat to withhold performance of contract.

Interpharm, Inc. v. Wells Fargo Bank, N.A.

Federal Circuit -- UNIGENE LABORATORIES, INC. V. APOTEX, INC.

Typos in a table showing the effect of citric acid concentration on the stability of salmon calcitonin are insufficient grounds for piercing privilege under crime/fraud.

No abuse of discretion in refusal to allow new counterclaims, given the minor change to claim.

Obviousness: (T)his court agrees that no reasonable juror could conclude that the ’014 patent would give a person of ordinary skill sufficient reason or motivation to use about 20 mM citric acid in aliquid nasal salmon calcitonin composition.

UNIGENE LABORATORIES, INC. V. APOTEX, INC.

Eleventh Circuit -- Community State Bank v. James Strong

Where the underlying dispute between the parties has not yet been litigated, efforts to discern federal jurisdiction for a freestanding arbitration claim can look to the underlying potential bases -- since the question has not been litigated, the dimensions of the potential grounds for jurisdiction have not yet been embodied.

State court TKO of arbitration rights as statutory penalty for discovery abuses collaterally estops a federal FAA attempt to compel arbitration.

Community State Bank v. James Strong

Tenth Circuit -- Katz v. Gerardi

 While final judgment is required for claim preclusion, it is not required for dismissal for claim splitting; Merger doesn't fundamentally change shares sufficiently so that plaintiff becomes 'purchaser' under 1933 Act.

Katz v. Gerardi

Ninth Circuit -- MICHELLE BARNES V. USDOT

Given the the increased usage of the airport to be expected, an agency decision to waive a EIS for runway expansion violated NEPA.

Case-by-case examination of facts required.

Public hearing satisfied the statute.

Dissent: Durn paperwork.

MICHELLE BARNES V. USDOT

Ninth Circuit -- SALAR KHOSHFAHM V. ERIC HOLDER, JR.

No substantial evidence that gov't established by clear, unequivocal and convincing evidence that parents of petitioner did not intend to return to the US.

Imputation of adult parent's decision to abandon LPR status is kosher until child's majority.

Concurrence - Imputation is tricky.

SALAR KHOSHFAHM V. ERIC HOLDER, JR.

Ninth Circuit -- TODD CHISM V. WASHINGTON STATE

Dismissal of S1983 action for groundless pr0n investigation reversed.

Violation of 4A by Judicial Deception where affiant states that illicit images were downloaded and purchased where only evidence is that a credit card was used for the hosting costs of the website where the images were uploaded.

Substantial showing of reckless disregard, given distant IP address, CC# was inherently unreliable indication.

Showing of judicial deception bars SJ grant of qualified immunity.

TODD CHISM V. WASHINGTON STATE

Eighth Circuit -- United States v. Frank Michael Frazier

Remand for determination of which restitution to charity that assisted arson victims is redundant with restitution directly to victims.


Error in ordering restitution to insurer for replacement value of structure, as insurance company was not a victim.  Better measure is replacement value to owners, offset by relevant transactions with renting arsonist.

United States v. Frank Michael Frazier

Eighth Circuit -- George Stokes v. Southern States Cooperative

 Reversal of dismissal of wrongful prosecution claim.


Deft's averrance of subjective belief of legit claim not enough, objectively, the belief was unreasonable.

Given lack of merit to claim, jury could reasonably infer malice.

George Stokes v. Southern States Cooperative

Eigthth Circuit -- Jordan To v. US Bancorp

Summary judgement on wrongful dismissal claim upheld.

Company policy requuiring personal notification of supervisor wasn't followed.


Forewarning of grounds for termination is not required under USERRA.


Jordan To v. US Bancorp

Eighth Circuit -- Jane Porter v. City of Lake Lotawana

Dismissal of wrongful termination claim upheld.

Dismissal of wrongful termination claim for lack of a written contract - element of claim under Missouri law.

Retaliation claim TKO'd for causation.

Jane Porter v. City of Lake Lotawana

Eighth Circuit -- Artie Jackson v. Larry Norris

Barring of evidence about minor sexual assault victim's sexual history was not unreasonable.

Dissent - Goes to reason for possible fabrication.

Artie Jackson v. Larry Norris

Eighth Circuit -- Anthany Kaden v. Daryl Slykhuis

Prisoner S1983 claim that mail censorship of magazine violated 1A is strong enough to survive summary judgement.

Anthany Kaden v. Daryl Slykhuis

Seventh Circuit -- Kenneth Pearson v. Voith Paper Roll

 Summary judgement affirmed against claim that decision to retire was prompted by pension administrator's incorrect data  - no proof of detrimental reliance or intentional misrepresentation.


Bonus: at time of dismissal, plaintiff had a colorable age discrimination claim., and the pension manager was the HR director.

ERISA claim withdrawn.

No holding on whether a funded, single-employer plan can be estopped based on representations.

 As the Plan is legally a separate entity form the employer, and the Plan had no reason to misrepresent, simple assertion by plaintiff is insufficient to survive summary judgment.

No detrimental reliance, as no proof that employee could have negotiated a better deal, and doesn't want to rescind severance agreement.

Kenneth Pearson v. Voith Paper Roll

Seventh Circuit -- April Ortiz v. City of Chicago

Sufficient evidence to survive summary judgment in S1983 claim for arrestee who was detained without necessary medications, where a request for help was made, family members informed police of situation, and arrestee deteriorated while in custody.

4A, not 8A applies where detainee has not yet had probable cause hearing.

Although short period of detention is relevant to determining objectively reasonable conduct, it is far from dispositive - else detainee becomes hot potato. 

At summary judgment stage, expert medical testimony is not necessary to establish causation. 

Error to the District Court in rejection of expert witnesses.

No qualified immunity for defts.

No basis for Gerstein claim , as defts were not the ones who prolonged the paperwork.

April Ortiz v. City of Chicago

Seventh Circuit -- Brian Cleary v. Philip Morris Incorp

Violation of consumers' right to know about risks cannot independently support an unjust enrichment claim -- many members of class would not have suffered injury.

Post-removal destruction of diversity does not mandate remand under CAFA.

Expansion of the claim to other manufacturers' "Lights" brands properly barred, as different transaction/occurrence, insufficient notice to existing defts.

No ruling whether unjust enrichment can survive as an independent c/a under Illinois law.

Brian Cleary v. Philip Morris Incorp.

Seventh Circuit -- Robert Tenny v. Rod Blagojevich

No Due Process violation in raising prices at prison commissary beyond statutory bar.

No viable pre-deprivation process, no allegation of lack of adequate post-deprivation process.

Finding DP required pre-deprivation process would effectively create a state APA.

Robert Tenny v. Rod Blagojevich

Seventh Circuit -- Michael H. Haury v. Bruce Lemmon

Dismissal for lack of jurisdiction doesn't count as a PLRA strike.

Michael H. Haury v. Bruce Lemmon

Sixth Circuit -- USA v. Jose Clariot

Discovery of contraband on private airplane was kosher, given that the seizure terminated when the inspection papers were returned to the owners, and it was the subsequent conversation that led to suspicion for the search.

No deterrent value, given the attenuation between initial seizure and discovery.

USA v. Jose Clariot

Sixth Circuit -- Kelly Foust v. Mark Houk

Grant of habeus on ineffective assistance for insufficient mitigation work in death penalty case.

Ineffective assistance of counsel, for not doing sufficient investigation of mitigation factors (deft's Dickensian childhood), not hiring mitigation specialist, and generally by the sum of performance.  Prejudicial.

Dissent : State court finding not unreasonable.

Kelly Foust v. Mark Houk 

[Thou shalt not kill.  - TMB]

Sixth Circuit -- State of Ohio ex rel. Susan Boggs v. City of Cleveland

An earlier dismissal does not bar a suit against airport where there was an intervening expansion of runways.

A claim dismissed for lack of standing has no claim preclusive effect, but here, a subsequent appeals ruling referencing the action (which was continued by a co-plaintiff) dismissed the case with prejudice.  Court holds that the second dismissal was purely procedural, and did not establish preclusion. 

Expansion of runways brings a new set of harms, which were merely speculative in the first action - no preclusion. 

State of Ohio ex rel. Susan Boggs v. City of Cleveland

Sixth Circuit -- USA v. Lance Poulsen

Securities search, conviction & sentencing upheld 

No error of denial of entrapment instruction where there was no direct inducement.

Existence of phone calls among conspirators were sufficient grounds for the wiretap.

No clear error in denial of Franks hearing.

Not unreasonable for sentencing court to accept government's estimates of loss, as the trigger is not actual losses of that amount, but rather that deft had knowledge of potential losses of that level.

No error in denial of venue change, as neither presumptive nor actual prejudice existed at venue.

Introduction of evidence from obstruction prosecution in securities prosecution is not prejudicial for showing consciousness of guilt, but probative (because showing consciousness of guilt).

No error in introduction of testimony as to losses.

No error in calculation of losses for sentencing purposes.

USA v. Lance Poulsen

First Circuit -- Dickow v. US

Errata.

Dickow v. US

First Circuit -- Santiago v. Commonwealth of Puerto Rico

Summary judgment against claim alleging misconduct by private school bus company upheld.

Private school bus company not performing a state function, as there are such things as private schools, and the greater includes the lesser.

Private company doesn't qualify as one subject to extensive regulations, as the regulations didn't drive (sorry) the conduct.

Insufficient entanglement for nexus theory of S1983 jurisdiction.

Title IX claim TKO'd as there was no appropriate gov't actor with actual knowledge.

NB: Published 8/24

Santiago v. Commonwealth of Puerto Rico

First Circuit -- US v. De Jesus-Viera

Narcotics smuggling search, conviction, and sentence upheld.

No plain error in not suppressing fruits of border search consisting of drilling into secret compartment, given nervousness and inconsistent stories.

No plain error in willful blindness instruction - did not cause jury to apply negligence standard.

Sufficient evidence - distinguished from similar reversal, as deft didn't own the car.

No clear error in not applying minor participant sentencing reduction, as deft didn't finger other players in the enterprise.

NB: Publshed 8/24

US v. De Jesus-Viera

First Circuit -- Delia v. Verizon Communications, Inc.

Totality of circumstances insufficient to establish deft as employer for ADA and Title VII claims.

Said totality: employees subjective belief, company logo on keycard, bound by company's rules of conduct, participation in company benefits program, congratulatory letter from company after 15 years of service.

Code of conduct - employee can be bound to a contract with entity other than the one controlling her means & manner of work.

(NB - published 8/24)

 Delia v. Verizon Communications, Inc.

Second Circuit -- Emslie et al. v. Borg-Warner Auto

Where designer of allegedly defective machine had sold design to manufacturer 26 years prior to manufacture, the designer did not place the product into the stream of commerce as NY defective design law requires.

Policy grounds - designer had gotten out of the business, no longer in a position to know.


No abuse of discretion in dismissing claim for forum non conveniens, as only one American entity remains in the litigation.

Emslie et al. v. Borg-Warner Auto

Second Circuit -- United States v. Rodriguez

No abuse of discretion in admitting portion of recorded prison phone call in which deft instructed sister to tell brother to tell lawyer that he wanted to cop to a plea.

Presence of recording machine on the call destroys the privilege, as it's a third party not designed to facilitate the communication.


Low burden for reliable means - inmate should have contacted attorney directly.


No violation of FRE 410, as conversation was not with an attorney for the purpose of negotiating deal. 

United States v. Rodriguez

Federal Circuit -- BUSH V. U.S.

BUSH V. U.S.

When, under TEFRA, the IRS re-computes taxes due in relation to a partnership, there is no need for them to issue a notice of deficiency, as the process is one of computational adjustment.

Dissent: More goin' on here than just computin' & adjustin'

Federal Circuit -- DELANO FARMS CO. V. THE CALIFORNIA TABLE GRAPE COMMISSION

DELANO FARMS CO. V. THE CALIFORNIA TABLE GRAPE COMMISSION

Patent holder remains a necessary party, even after broad license to third party.

S702 of the APA waives immunity from all nonmonetary claims, not merely those with an administrative remedy.

Sufficient proof of inequitable conduct found in the pleading destroys the presumption of regularity.

Antitrust claim TKO'd for not defining the market.

Ninth Circuit -- USA V. LUIS BARAJAS-ALVARADO

USA V. LUIS BARAJAS-ALVARADO

Expedited removal proceedings are not sufficient to ground the charge as a predicate offense to illegal re-entry - additional processes and review are needed in the second proceeding when the alien challenges the removal offense as fundamentally unfair.

Ninth Circuit -- DONALD MCCANTS V. THOMAS BETLACH

DONALD MCCANTS V. THOMAS BETLACH

Medicare suit challenging increases in copayments.

Chevron deference to Secretary's determination that some populations can be covered under a part of the statute without co-pay protections.

BUT the actual shift to that part of the statute was arbitrary and capricious.

Deference to Secretary's finding that human experimentation ban doesn't apply to experimental cost structures.

Ninth Circuit -- USA V. JUAN MATUS-ZAYAS

USA V. JUAN MATUS-ZAYAS

Plain error in Immigration tribunal not establishing unavailability before allowing videotaped statements of material witnesses, but doesn't rise to level justifying relief.

Facial challenge TKO'd, as law doesn't abrogate constitutionally required showing of unavailability.

No plain error in ordering depositions from material witnesses and subsequent release.

Any party can move to depose a material witness under FRCrimP15(a)(1)

Probably no need for signature of transcripts under oath.

Ninth Circuit -- USA V. BRANO MILOVANOVIC

USA V. BRANO MILOVANOVIC

Order - going to en banc, prior opinion not precedential.

Seventh Circuit -- Sierra Club v. Khanjee Holding (US)

Sierra Club v. Khanjee Holding (US)

FRCP issues - power plant permitting/construction.

Absent a change in the legal landscape, law of the case determinations on subject matter jurisdiction bind.

Excessive fines challenge waived, as not made below in reply brief to motion for fines -- since litigant argues that any fine would be excessive.

Deft had sufficient control over project, no need to be actual owner/operator to be sued by relator.

Fine reasonable given deft's knowledge.

Fees should be awarded to relator regardless of how well funded it is.

Seventh Circuit -- Mannie Maddox v. Timothy Love

Mannie Maddox v. Timothy Love

Error in rejecting prisoner claim for failure to exhaust where administrative tribunal spoke to merits without addressing procedural shortcomings.

No RILUPA claim for denial of sectarian services, given sovereign immunity.

Pleading sufficiently alleges S1983 violations in cancellation of sect's services.

Where prison officials address an inmate’s grievance on the merits without rejecting it on procedural grounds, the grievance has served its function of alerting the state and inviting corrective action, and defendants cannot rely on the failure to exhaust defense.

Seventh Circuit -- Alicja Wroblewska v. Eric Holder, Jr

Alicja Wroblewska v. Eric Holder, Jr

  Due Process argument against immigration sting operation so subpar as to merit Bar sanctions for counsel.

Seventh Circuit -- Carol Everett v. Cook County

Carol Everett v. Cook County

   Title VII action for terminating employee because she was Caucasian TKO'd for lack of proven animus.

No gain from spoliation argument from destruction of documents, as no bad faith proven.

No S1983 b/c insufficient procedural irregularities.

Seventh Circuit -- Arboleda Ortiz v. Thomas Webster

Arboleda Ortiz v. Thomas Webster

    Bivens action by death penalty inmate alleging de facto policy of barring death penalty prisoners from obtaining appropriate off-site medical care.  Though the court finds no such policy, the doctors actions are held to reflect deliberate indifference sufficient for remand.

Dissent: Mere negligence.

[Thou shalt not kill.  -TMB]

Seventh Circuit -- USA v. Ernest Snow, Jr.

USA v. Ernest Snow, Jr.

   Where tip to dispatcher alerts officers to possibility deft is a burglar, ordering deft out of car for a patdown is kosher, given that burglars are frequently armed.

Seventh Circuit -- Garry Boyd v. Tornier, Incorporated

Garry Boyd v. Tornier, Incorporated

Insufficient evidence that there was a substantial imbalance between parties to contract -- contract term barring recovery of lost profits binds.

Sufficient evidence for negligent misrepresentation.

Assumption that business would grow 20%/yr untenable.

No error in finding that punitive damages barred as a matter of law.

Seventh Circuit -- John Marcatante v. City of Chicago

John Marcatante v. City of Chicago

   Workers who retired during the negotiation of a new CBA are not entitled to retroactive wage increases included as part o new CBA - the written contract governs.  No DP violation, as state did not induce them to retire.

Seventh Circuit -- Shane McCarthy v. William Pollard

Shane McCarthy v. William Pollard

   When state destroys vehicle used in crime and there was no apparent exculpatory value, no DP violation sufficient for habeus.

Deft had argued brake failure, prosecution disputed this, argued against it in closing.

Seventh Circuit -- Wisconsin Interschol v. Gannett

Wisconsin Interschol v. Gannett

State entities may contract with private providers to exclusively stream entire events or performances - no 1A violation.

No prior restraint - reporting is permitted, but performance is restricted.

Viewpoint considerations satisfied, even though they don't apply.

Key is the appropriation of content - Zacchini

Advertising and merchandising exclusive deals establish that states can grant exclusive rights.

Seventh Circuit -- Micrometl Corporatio v. Tranzact

Micrometl Corporatio v. Tranzact Technologies

Party is shocked, shocked when a document in other party's possession reveals amount in controversy to be a mere 40K.  After holding onto it for a bit, they present to the court & move for remand due to lack of SMJ.  No fees shifted, however, as they held on to it for 10 months, and there was no evidence of duping or bad faith on part of first party.

The fact that remand for SMJ is timely at any time doesn't justify second party's holding on to the info for 10 months.

Seventh Circuit -- Manuel de Jesus Fami v. Eric Holder

Manuel de Jesus Fami v. Eric Holder

   Guilty plea to aiding & abetting importation for purposes of prostitution -- petitioner provided condoms to brothels.  Court holds this to be not a violent felony.

Many aiding and abetting convictions are atypical of the generic crime.

Error in applying modified categorical approach, although statute is divisible - better to consider charging instrument, etc but not to the extent of circumstance-specific analysis.

Seventh Circuit -- State of Michigan v. United States

State of Michigan v. United States

No abuse of discretion in District Court declining to issue injunction requiring Corps of Engineers to close some Great Lakes waterways to prevent Asian Carp invasion.  Current regulatory efforts, though not enough to displace, effectively TKO a judicial solution -- an injunction would just muddy the waters.

Federal common law (public nuisance) extends to passive carp-enablement.

Genuine question as to whether the US as sovereign is vulnerable to a public nuisance suit.

APA Waiver of sovereign immunity obtains.

Current level of legislation not enough to displace common law solution.

Likely success on merits, given magnitude of hams.

Injunctive relief sought is vague.

Error for District Court to assess harms at the same time as success on the merits when deciding the injunciton.

Balance of harms favors deft.

Seventh Circuit -- USA v. Christopher Holcomb

USA v. Christopher Holcomb

Denial of en banc rehearing given President's direction to USA's that the FSA of 2010 applies to all sentencings after the effective date, without regard to date of the crime, further direct appeals, or post-sentencing matters in the District Court.

[Brisk and blithe reductions of  rich & extended opinions follow.]

Easterbrook: Only way to implement would be to issue commutations.  Parsing law is our gig.

Williams:  Three other circuits disagree; saving the Saving Act, judges have to sentence according to the latest ruling of the legislature;

Posner:  Statutes aren't to be interpreted literally if results are absurd [Holy Trinity not cited], old scheme unjust.

Interesting - Circuit split 50/50, as there's an even number of judges at the moment.

Sixth Circuit -- Carol Metz v. Unizan Bank

Carol Metz v. Unizan Bank 

Attorney's refiling of claims earlier dismissed with prejudice is sufficient to justify sanctions.

Improper purpose is established by the fact that a reply brief was required.

District court need not make specific finding of bad faith to justify sanctions.

No error in sanctioning under inherent authority where Rule 11 also applies.

No DP violation in imposition without a hearing.

Sixth Circuit -- USA v. Keahmbi Coleman

USA v. Keahmbi Coleman 

Ohio "Buglary of an occupied structure" statute is a qualifying predicate offense for ACCA.

Court says that the categoraical approach should be applied.  Emphasis seems to be on what the typical instance of the crime would involve.

Residual prong.

Sixth Circuit -- Larry Gibbs v. USA

Larry Gibbs v. USA 

On a collateral challenge to priors for career criminal designation, a 60(b) motion arguing actual innocence of being a career criminal cannot be used to challenge the predicate offenses.

Although no one had challenged the specific statute, similar challenges should have put deft on sufficient notice to raise the issue on direct appeal.

Court declines to say whether actual innocence can be grounds for challenging noncapital sentences. 

Calculation of guidelines sentence is inherently procedural.

Fourth Circuit -- ASWAN v. Commonwealth of Virginia

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.

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.)

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.

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.

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.

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.

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. 

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. 

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.

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]

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.

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.

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.

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.

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.

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.

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.

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.