Federal Circuit -- KIMBERLY-CLARK WORLDWIDE, INC. V. FIRST QUALITY BABY PRODUCTS, LLC. [ORDER]

Denial of rehearing en banc.

Dissent: Controlling precedent requires that likely eventual success on merits be considered at issuance of preliminary injunction - this should go beyond merely the existence of a colorable argument for nonmovant.

Dissent:  Patent law shouldn't have sui generis scheme for assessing preliminary injunctions

KIMBERLY-CLARK WORLDWIDE, INC. V. FIRST QUALITY BABY PRODUCTS, LLC. [ORDER]

Ninth Circuit -- LOG CABIN REPUBLICANS V. USA

Don't Ask Don't Tell challenge moot.

No collateral consequences, potential for Congressional repetition unclear.

Vacatur to District Court, with unusually strong language about precedential value of prior lower court holding.

Concurrence : Extensive disquisition on Lawrence.

LOG CABIN REPUBLICANS V. USA

Seventh Circuit -- Cedar Farm, Harrison v. Louisville

Ejectment for damage to property is not justified where lease has a compensation provision that has not been shown to be futile.


Cedar Farm, Harrison v. Louisville Gas & Electric

Sixth Circuit -- In re: Treasure Isles

For purposes of the statutory deadline, trustee assumes lease upon motion to do so.


In re: Treasure Isles

Sixth Circuit -- Nidal Bazzi v. City of Dearborn

Plaintiff alleges traffic stop was engineered in order to send him back to prison.

Sufficient evidence for civil conspiracy for 2/3 of defts.

Stop was not justified under 4A.

No qualified immunity.

Nidal Bazzi v. City of Dearborn

Fifth Circuit -- Doug Morgan, et al v. Plano Independent School Dis

 Qualified immunity to elementary school principals for restricting religious-themed gift-giving.

Divided panel seems to suggest that the restrictions would not have passed Constitutional muster.

(Jigsaw of concurrences, special concurrences, and split majorities.)

Doug Morgan, et al v. Plano Independent School Dist.

Third Circuit -- Natl City Mtg Co v. Brian Stephen

Errata.

Natl City Mtg Co v. Brian Stephen

Third Circuit -- Karen V. Cappuccio v. Prime Capital Funding, LLC. et

Erratum.


Karen V. Cappuccio v. Prime Capital Funding, LLC. et

First Circuit -- Asociacion de Suscripcion Conj v. Juarbe-Jimenez

A facial 5A Takings Clause challenge to statute bith accrues and becomes ripe upon either enactment or effective date.

Court declines to say which of the two.

Asociacion de Suscripcion Conj v. Juarbe-Jimenez

First Circuit -- US v. Collazo-Castro

Administrative warrant suffices for revocation of supervised release.

Circuit split signalled.

Oath/affirmation not required.


US v. Collazo-Castro

First Circuit -- Rodriguez-Sanchez v. Municipality of Santa Isabel

No requirement for pre-discharge process, as the layoffs were part of a governmental reorganization.

Rodriguez-Sanchez v. Municipality of Santa Isabel

Second Circuit -- United States v. Roberts

Deft's proffer statements were not unduly economically coerced.  

District Court applied the correct standard, only focusing on the potential loss of work because it was the harm that deft had claimed.

Proffer statements appropriately admitted, as the R.410 waiver was good, and the statements were used to rebut deft's claims.

No error in imposing the 'position of responsibility' sentencing bump.

Remand to clarify why trial court sentenced according to retail as opposed to wholesale value of the cocaine.


United States v. Roberts

Federal Circuit -- SYSTEMS DEVELOPMENT CORP. V. MCHUGH

Army Board of Contract Appeals did not have proper jurisdiction over appeal.

SYSTEMS DEVELOPMENT CORP. V. MCHUGH

Federal Circuit -- SPREAD SPECTRUM SCREENING LLC. V. EASTMAN KODAK CO.

Order of Stay insufficiently final for appeal.

SPREAD SPECTRUM SCREENING LLC. V. EASTMAN KODAK CO.

Federal Circuit -- MARINE POLYMER TECHNOLOGIES, INC. V. HEMCON, INC.

Doctrine of absolute intervening rights protects products produced before reexamination date.

Making of substantive changes in claim during reexamination makes grounds of original claim moot.

Dissent - Shouldn't review, absolute intervening rights don't apply absent a change in the claim.

MARINE POLYMER TECHNOLOGIES, INC. V. HEMCON, INC.

Federal Circuit -- CORDIS CORP. V. BOSTON SCIENTIFIC CORP.

Despite intervening sale of assets, breaching party still expected to perform so long as contract has not been repudiated.  No damages until they have actually been incurred.

Partial breach, not total breach.

Commercial enterprise exception does not apply - govt was not trying to make a profit.

CORDIS CORP. V. BOSTON SCIENTIFIC CORP.

Federal Circuit -- CORDIS CORP. V. BOSTON SCIENTIFIC CORP.

District court constructed 'undulating' correctly.

No error in Judgment as a Matter of Law for no infringement, notwithstanding jury verdict.

District court correctly found no inequitable conduct.


CORDIS CORP. V. BOSTON SCIENTIFIC CORP.

Eleventh Circuit -- Anthony Catron, et al v. City of St. Petersburg

Homeless plaintiffs have stated a valid Due Process claim against municipal trespass regulation, as there is no means of challenging preliminary warnings.

No 1A, 14A or state claims.

Dissent - No remaining federal claims, so punt the procedural DP claim to the state courts.

Anthony Catron, et al v. City of St. Petersburg

Eleventh Circuit -- Campbell v. IRS

5M qui tam award to relator was fully taxable.

Campbell v. IRS

Eleventh Circuit -- Frank A. Walls v. Edwin G. Buss

No ineffective assistance, as deft's counsel presumably made a strategic choice to be open with the jury about interrogation evidence relating to an uncharged sexual assault on the murder victim.

Finder of fact upheld on peremptory strike.

Frank A. Walls v. Edwin G. Buss 

 

[Thou shalt not kill.   - TMB]

Ninth Circuit -- USA V. JUAN BARRAZA-LOPEZ

Speedy Trial Act 30 day clock resets when charges are dismissed without prejudice and then refiled.

USA V. JUAN BARRAZA-LOPEZ

Ninth Circuit -- USA V. HARRY STONEHILL

Misconduct by US in tax case was tangential to the main issues - no fraud on the court.

USA V. HARRY STONEHILL

Ninth Circuit -- ALEXIS DEGELMANN V. ADVANCED MEDICAL OPTICS INC.

Class members who purchased defective eye drops but who did not incur harm have standing to sue for false advertising.

Claim preempted by federal drug labeling laws.


ALEXIS DEGELMANN V. ADVANCED MEDICAL OPTICS INC.

Ninth Circuit -- APPLE INC. V. PSYSTAR CORPORATION

 First sale defense not valid against violation of software license.

Deft had put plaintiff's OS on its machines & shipped a purchased, sealed copy of the OS with the machines.

Extensive disquisition on "copyright misuse."

APPLE INC. V. PSYSTAR CORPORATION

Seventh Circuit -- Lisa Graczyk v. West Publishing

Company's sale of driver's license information provides sufficient statutory standing under DPPA.

The sale was kosher - 12(b)(6) affirmed.

Lisa Graczyk v. West Publishing

Sixth Circuit -- Olwen Moeller v. Garlock Sealing Technologies, LLC

Insufficient evidence that deft's asbestos gaskets were a substantial cause of plaintiff's mesothelioma.

Concurrence:  Jury's rejection of strict liability for not warning inconsistent with negligence finding for not warning.

Dissent: IT'S ASBESTOS.


Olwen Moeller v. Garlock Sealing Technologies, LLC

Fifth Circuit -- Jane Doe, et al v. Covington County Sch Dist, et al

 Order - going to en banc.

Jane Doe, et al v. Covington County Sch Dist, et al

Third Circuit -- USA v. Herman Friedman

No error in denial of Bribery deft's instruction on coercion, as the law was incorrectly stated.

No error in exclusion of tax official's testimony in support of deft, as it was a list of actual apartments in the building, not legal apartments in the building.

Exclusion of cross of CI as to past bribery was correct - cumulative.

Brady nondisclosure wasn't material.

Substantial procedural errors in sentence.

USA v. Herman Friedman

Third Circuit -- Gregory Meditz v. City of Newark

Summary judgment inappropriate on Title VII disparate impact claim against a municipality where the statistical evidence establishes a disparity - regardless of congruency between hiring demographics and municipality's population.

Plaintiff argues that skewing hiring towards the population of the municipality creates disparate impact on Caucasian applicants.

Gregory Meditz v. City of Newark

Secind Circuit -- Prus v. Holder

 New York promoting prostitution law not an aggravated felony for purposes of BIA deportation decisions.

Categorical analysis of statute.

Prus v. Holder

Announcement

Three precedential opinions Monday from the Federal Circuit, and on the reasonable assumption that they're going to have something to do with patent law, they'll be mis-summarized with tomorrow's opinions.

(G-d willin' and the crick don't rise.)

Tenth Circuit

Yesterday, the Tenth listed the following opinions - no way of telling now which ones were precedential.

 11-3072  Collins vs. Jordan
 11-1132  Rocha vs. Zavaras
 09-3282  Rural Water District No. 4, Do vs. City of Eudora, Kansas
 11-1186  Lopez vs. Trani

(I include them mainly so that the search function below will incorporate them.  Note as well the text on the bottom of the page about precedential vs. non.)

Ninth Circuit AMERICAN TRUCKING ASSOCIATIONS V. THE CITY OF LOS ANGELES

Port trucking regs not preempted, as states can limit access to their facilities so long as it doesn't more broadly affect rates & schedules.

Market participant exception to preemption not limited to procurement.

Dissent: some aspects not related to the market participant exception.

AMERICAN TRUCKING ASSOCIATIONS V. THE CITY OF LOS ANGELES

Ninth Circuit -- USA V. JEROME SYKES

Revision of sentence after amendment of guidelines is not a new sentencing for the purposes of requiring Apprendi establishment of minimums.

The minimum was latent in the original sentence.

(Sentence went from 121 mo to 120 mo)

USA V. JEROME SYKES

Ninth Circuit -- USA V. DONGFAN CHUNG

Sufficient evidence for espionage conviction.

No prejudice for Brady claim - the delay wasn't game-changing.

No Confrontation Clause error in not being able to cross gov't official who said the data were sensitive.

No error in introduciton of to-do list found in home.

Correct sentencing categories chosen.


USA V. DONGFAN CHUNG

Ninth Circuit -- TEAM ENTERPRISES, LLC V. WESTERN INVESTMENT REAL ESTATE

Errata.

TEAM ENTERPRISES, LLC V. WESTERN INVESTMENT REAL ESTATE

Ninth Circtuit -- USA V. DAVID PERELMAN

Given possible intention to deceive, statute prohibiting wearing of others' Purple Hearts survives Free Speech facial challenge.

USA V. DAVID PERELMAN

Ninth Circuit -- RICHARD STOKLEY V. CHARLES RYAN

No colorable claim of ineffective assistance given trial counsel's investigation of brain damage theory.

RICHARD STOKLEY V. CHARLES RYAN

[Thou shalt not kill.  - TMB]

Ninth Circuit -- CHRISTINE EARL V. NIELSEN MEDIA RESEARCH, INC.

Given unequal treatment of comparators, performance reviews might have been pretextual - age discrimination claim can advance.

CHRISTINE EARL V. NIELSEN MEDIA RESEARCH, INC.

Ninth Circuit -- MATTHEW SILVA V. SARA OLSON

PLRA strikes were inappropriately counted, as they had not yet ripened into final decisions.


Circuit split on this.


Access to courts and retaliation claims sufficiently pleaded.


Dissent - no requirement in statute for finality, court clog risked



MATTHEW SILVA V. SARA OLSON

Ninth Circuit -- HAILE V. HOLDER

Although petitioner helped a terrorist organization and is therefore ineligible for most forms of relief, deferral of deportation is warranted given chances of torture.

HAILE V. HOLDER

Ninth Circuit -- JIANG V. HOLDER

Error in BIA's refusal to allow claimant to authenticate documents in ways other than certification from home country.

JIANG V. HOLDER

Ninth Circuit -- LEVI JACKSON V. CHARLES RYAN

Opinion withdrawn.

LEVI JACKSON V. CHARLES RYAN

Seventh Circuit -- Rasa Jonaitiene v. Eric Holder, Jr.

Possibility of violence from private actors and foreign government's inability to protect are not grounds for asylum.


Rasa Jonaitiene v. Eric Holder, Jr.

Seventh Circuit -- USA v. Michael Campbell

Deft effectively waived pro se application by offhand remark in colloquy and not raising it again subsequently.

 No error in non-application of retroactive FSA minimums.

USA v. Michael Campbell

Seventh Circuit -- USA v. Terrence Vance

No error in crack/powder sentencing


USA v. Terrence Vance

Seventh Circuit -- Esurance Insurance C v. Lukus Keeli

Given the technical possibility of the punitive award to be 5x the cost to class, error in denial of class certification on the prospect that minimum money threshold would not be reached.

Esurance Insurance C v. Lukus Keeli

Seventh Circuit -- Wilder Corporation o v. Thompson Dr

Prior land owner not required to indemnify current owner against action for breach due to initial owner's contamination of the land.

You wants the contract, you makes the contract.

Wilder Corporation o v. Thompson Dr

Sixth Circuit -- USA v. Cornell Smith

Where, from consideration of the plea agreement itself, it appears to be based on Guidelines ranges, subsequent modifications of the Guidelines may warrant review of the sentence.


USA v. Cornell Smith

Fifth Circuit -- Friends of St. Francis Xavier v. FEMA

 Church sodality located six miles from site has insufficient geographical nexus for standing to challenge FEMA ruling.

Friends of St. Francis Xavier v. FEMA

Third Circuit -- Mitchell Partners LP v. Irex Corp

Order - panel rehearing granted.


Mitchell Partners LP v. Irex Corp

Second Circuit -- Salim Shahriar et al. v. Smith & Wollensky

District Court did not abuse discretion by exercising supplementary jurisdiction over state law claims ancillary to the federal claim, even where the size of the state (now non-putative) class exceeded the federal size.

Maybe a circuit split - contrary circuit kinda distinguished.

Certification of class was kosher.

Salim Shahriar et al. v. Smith & Wollensky

Second Circuit -- Johnson v. Nextel Communications, Inc.

Dispute Settlement Agreement between plaintiffs counsel and deft created valid claim for conflict of interest given 2M incentive fee for settlement. 

Nonwaivable.

Court describes it as an employment contract with deft.

Breach, fraud & malpractice.

Valid claim for aiding and abetting against deft.

NJ law applies, as case was initially removed to SDNJ

Johnson v. Nextel Communications, Inc.

Second Circuit -- Altria v. USA

Plaintiff did not obtain a genuine ownership or leasehold interest in the entities or incur genuine debt - deductions not licit.

No error in substance over form instruction.

Altria v. USA

Announcement

Will add tonight's cases tomorrow, learned Worldwide Legal Community.

Federal Circuit -- CORDANCE CORP. V. AMAZON.COM, INC.

No error in JMOL given lack of proof of prior conception.

Amazon shopping cart system fully anticipated the patented process.

Jury's general verdict should have been upheld by court.

No error in court's construction of "feedback information" in CRM system.


CORDANCE CORP. V. AMAZON.COM, INC.

Eleventh Circuit -- Bender v. Mazda Motor Corporation, et al

Order of remand cannot be examined in a 60(b) motion after the remand has actually occurred.

Bender v. Mazda Motor Corporation, et al

Eleventh Circuit -- Jimmy Ledford v. Shelby Peeples, Jr.

Reissue of parts of earlier opinion after en banc.

Jimmy Ledford v. Shelby Peeples, Jr.

Eleventh Circuit -- Doe v. Princess Cruise Lines, Ltd.

Some of the claims relating to a shipboard sexual assault of employee are covered by the arbitration provision in the employment agreement, some aren't - it's for the court to decide.

Doe v. Princess Cruise Lines, Ltd.

Ninth Circuit -- JOHNNY GONZALES V. ARROW FINANCIAL SERVICES, LLC

State law affords concurrent class-action remedy for FDCPA violations.

Dissent: Statutory language is parallel.

JOHNNY GONZALES V. ARROW FINANCIAL SERVICES, LLC

Ninth Circuit -- USA V. MARIO RIVERA

As deft pleaded to particulars of theft which established it as general fraud, the serious felony counts for the sentencing bump.

USA V. MARIO RIVERA

Ninth Circuit -- CONFEDERATED TRIBES AND BANDS V. CHRISTINE GREGOIRE

Burden of cigarette excise tax on sales to non-members of Indian nation does not fall upon the nation.

Concurrence: This would go better if we could perform standard economic analysis.


CONFEDERATED TRIBES AND BANDS V. CHRISTINE GREGOIRE

Ninth Circuit -- AL HARAMAIN ISLAMIC FOUNDATION V. UNITED STATES DEPARTMENT OF THE TREASURY

Substantial evidence supports designation of Islamic organization as terrorist.

Where government did not pursue additional mitigation measures after denying access to classified materials related to the decision (e.g. nonsecret summaries of classified information), Matthews v. Eldridge procedural DP violation.

Procedural DP violation in not presenting statement of reasons for decision.

Freezing assets without warrant violated 4A.

Barring speech on behalf of the designated organization (e.g. joint press conference) violates 1A.

AL HARAMAIN ISLAMIC FOUNDATION V. UNITED STATES DEPARTMENT OF THE TREASURY

Ninth Circuit -- USA V. FITCH

Sentencing court's drastic upwards departure from sentencing guidelines (while remaining within statute) on grounds that deft had committed the money laundering - by murdering his wife - upheld.

Dissent: Insufficient proof.

USA V. FITCH

Ninth Circuit -- DUKES V. WAL-MART STORES

Order.

DUKES V. WAL-MART STORES

Seventh Circuit -- Patricia Clarett v. Steven Roberts

 Where plaintiff in civil case preemptively introduces evidence of prior criminal conviction, appeal is waived on admissibility.

Police officer's testimony on tasering did not cross the line into expert testimony.

Excessive force instruction did not conflate plaintiff's false arrest claim with the wrongful force claim.

Three shocks from taser not a per se illicit use of force.

Patricia Clarett v. Steven Roberts

Seventh Circuit -- Charles Keller v. USA

Prisoner's habeus claim arguing that vacating of two ACCA predicates warranted resentencing denied, as the court vacating the decisions issued an order subsequent to the habeus filings retracting the earlier order with respect to three of the convictions due to a scriveners error.

Charles Keller v. USA

Seventh Circuit -- Minn-Chem, Incorpora v. Agrium Inco

Complaint alleging potash price fixing insufficiently pleaded to qualify for direct effects exception in Foreign Trade Antitrust Improvements Act.  The Act therefore bars the suit.

Minn-Chem, Incorpora v. Agrium Incorp.

Seventh Circuit -- Bruce A. Williams v. Officer Jason Adams

Pauper plaintiff's inability to pay sanctions incurred by poor filings by contingency counsel is not a justification to dismiss the entire suit.

Bruce A. Williams v. Officer Jason Adams

Sixth Circuit -- L. Daft v. Advest, Inc.

Sufficiency of plan to qualify under ERISA is a question for merits, not a jurisdictional bar.

Merely a colorable claim.

Should have been remanded to Committee after determination that committee's top hat analysis was flawed.

 L. Daft v. Advest, Inc.

Sixth Circuit -- Severe Records, LLC v. John Rich

Sending of a cease and desist letter triggers potential federal jurisdiction under the Copyright Act and the Declaratory Judgment Act.

Artist's transfer of shared copyright interest to new management does not constitute infringement claim for other rights holders in the composition/recording.

Severe Records, LLC v. John Rich

Third Circuit -- USA v. Asya Richardson

Third Circuit sever down at this writing - will fix if it comes back tonight.

USA v. Asya Richardson

Second Circuit -- Barrepski v. Capital One Bank

Claim survives 12(b)(6) under FCRA where bank refuses to adjust credit report after judgment against it where the consumer had not exhausted the bank's grievance procedure.

Mortgage denied based on report = injury.

Barrepski v. Capital One Bank

Second Circuit -- US v. Torres-Rosario

As-applied challenge to felon-in-possession statute TKO'd, as priors were for drug dealing, which is bad and potentially violent.

No error in referring to deft in closing as a drug dealer, as it was a common-sense inference.

Excluded statement useless and harmless.

Subsequent reversal on ACCA predicates justifies vacate & remand in the interest of justice, despite deft stipulating to ACCA priors at sentencing.


US v. Torres-Rosario

First Circuit -- US v. Mitrano

Jury could reasonably have believed that attorney deft willfully avoided challenged, out-of-state child support order. 

On federal sufficiency of the evidence review, state guidelines and caselaw holding that income, not assets, are to be considered is not relevant, as nonpayment of any part of the obligation is sufficient.

No error in willful blindness instruction, despite deft stipulating as to knowledge.

No plain error in calculating sentence based on total arrearage.

US v. Mitrano