Second Circuit -- City of New York v. Group Health Inc.

City of New York v. Group Health Inc.

City of New York challenges merger on monopoly grounds.

(1) Purchasing strategy of a single buyer (here, the plaintiff) is insufficient basis to define the tying market.

(2) Leave to amend properly denied as the defect would not be remedied, extraordinary discovery would be required, and the movant waited too durn long to file the motion.

Second Circuit -- Brown v. Eli Lilly & Co.

Brown v. Eli Lilly & Co.

Heavy-duty FRCP.

Quick read:


(1) Consent order stamped by clerk of court / staff attorney claiming not to prejudice future appeals and referencing 42(b) does not preclude entry of final judgment, despite assertions by court staff that the (somewhat flawed) entry of final judgment was a nullity.  Appeals clock runs from flawed filing.


(2) Action can be non-diverse at time of removal to fed courts as long as the non-diversity is cured before final judgment.  [If TMB's memory serves, this might be a circuit split - there was something in dicta from one of the other circuits in the last few days about diversity being requisite at both removal and judgment to survive appeals challenge.]

(3) Actions of co-defts whose time to appeal has passed cannot be re-examined to create a PF case for deft still in the thick of things.

Eleventh Circuit -- USA v. Charles Willis

USA v. Charles Willis

No standing for ineffective assistance habeus, as it wasn't in the COA.

Resentencing is not a pretext for relitigating corollary issues by bootstrapping them to the permitted claim.

Deft's receipt of the PSR (nine days) inside of the statutory 10 day period was harmless error.

No error in sentence as court stated that it had the power to vary downwards & didn't.

Ninth Circuit -- Johnson v. Liberty Mutual Fire Insur. Co.

 Johnson v. Liberty Mutual Fire Insur. Co.

No c/a for spoilation tort where insurance company does not retain taillights after testing - plaintiffs had wanted to use them in a later suit, and they had been discarded.  No foreseeability.

Ninth Circuit -- RONALD YONEMOTO V. DEPARTMENT OF VETERANS AFFAIRS

RONALD YONEMOTO V. DEPARTMENT OF VETERANS AFFAIRS

Agency cannot satisfy FOIA request by offering to make the documents available to requestor in his capacity as an employee of the agency.

Remand for certain emails expurgaged according to exemption 6 of FOIA (personnel/medical), as there's insufficient proof in the record to justify.

Ninth Circuit -- BEATRICE MIRANDA V. KURT BRAATZ

BEATRICE MIRANDA V. KURT BRAATZ

Habeus grant reversed, as tribal courts are permitted to impose multiple yearlong sentences for discrete violations of the law, even though they emanate from the same occurrence.

Ninth Circuit -- A. OLIVER V. RALPHS GROCERY COMPANY

A. OLIVER V. RALPHS GROCERY COMPANY

Sufficient injury-in-fact for ADA claim.

No error in court not considering ADA barriers listed in expert report but not listed in claim - notice.

Violations of MUTCD are not per se violations of the ADA.

Ninth Circuit -- CRYSTAL AMMONS V. STATE OF WASHINGTON DEPARTMENT

CRYSTAL AMMONS V. STATE OF WASHINGTON DEPARTMENT OF SOCIAL AND HEALTH SERVICES

No qualified immunity for supervisor of psychatric facility where allegation of past abuse was known and evidence of present improper relationship was present. 

Qualified immnuity for Director of Nursing who had better scientific data suggesting present abuse, but did not know of past allegation.

Long dissent: Qualified immunity for the supervisor.

Ninth Circuit -- GEORGE SOULIOTES V. ANTHONY HEDGPETH

GEORGE SOULIOTES V. ANTHONY HEDGPETH

Order - vacating of decision given en banc holding in another case.

Eighth Circuit -- Wanda Slater v. Republic-Vanguard Insurance Co

Wanda Slater v. Republic-Vanguard Insurance Co

Diversity jurisdiction was not destroyed during trial, as $100 retained interest was insufficient to keep non-diverse party from being merely nominal.

Legal issue of whether duty to defend was triggered by contractual exception is insufficiently developed for consideration.

Under Texas law, where a "completed operations" term in policy bars recovery for goods once they are off the seller's site, it similarly bars actions based on services which would have been provided prior to the removal of the product from the site.

Eighth Circuit -- Fair Isaac Corporation v. Experian Information Solutions

Fair Isaac Corporation v. Experian Information Solutions

Even if the plaintiff is the target of an anti-competitive conspiracy, they still must demonstrate cognizable harm under Sherman Act (increased prices, etc) for standing.

Hypothetical future damages from inadequate data is an insufficient harm for suit against collusion among data providers.

No error in finding the "300-850" trademark to be merely descriptive.

Sufficient evidence for fraud on the Patent Office in assertions of proprietary use of "300-850"

No licensee estoppal basis for denying challenge to mark, as (1) entity raising the challenge wasn't proved to be an alter ego of the licensee, and (2) if the mark is invalid by one of the challenges, estopping one of several  plaintiff from challenging doesn't get you much.

No false advertising.

No abuse of discretion in not awarding fees to prevailing party, even though fraud on the Patent Office was proven,

Seventh Circuit -- Lisa Hicks v. Avery Drei, LLC

Lisa Hicks v. Avery Drei, LLC

Claim for vacation pay in the first year TKO'd by agreement with employer that there would be no vacation pay in the first year.

Allegedly spurious supplemental response provided by deft at end of discovery period not grounds for reversal, as forfeited for not including the relevant parts of the record with the appeal, and not enough of a miscarriage of justice to justify reversal for plain error.

No error in court's finding that enterprise was not subject to the FLSA.

Special concurrence - Enough evidence in the record for FLSA coverage.

Seventh Ciruit -- Sarah Bertanowski v. Spin Master

Sarah Bertanowski v. Spin Master

Parents whose kids weren't injured by recalled defective toy have standing under the Consumer Protection Act, as they paid more for the (cheap) toy than they might otherwise have done.

Although the Rules Enabling Act means that the District Court is not free to impose its own analysis at class certification over Rule 23 considerations of best remedy, 23(a)(4) allows courts to functionally consider the same reasoning.

Different state remedies make class unworkable.

Sixth Circuit -- Abu-Ali Abdur'Rahman v. Roland Colson

Abu-Ali Abdur'Rahman v. Roland Colson

Death penalty deft's cumulative error arguments under Brady and prosecutorial misconduct can't be considered as they weren't raised in state courts and they're not on the COA.

No Brady violation where co-deft statements indicating deft went to locus in quo as member of anti-crime group (which proscs denied at trial) weren't released to deft, as deft knew that co-deft had discussed the group with prosecutors.

Deft's attempts at self-harm after arrest (not remembered by deft) are not grounds for a Brady violation, as they were mentioned in available reports not sought by deft's counsel & not material proof of mental illness.

Extraordinarily forceful dissent --

Cumulative Brady: covered by the COA, whole-record analysis makes the prosc's omissions enough for violation.  5th Circuit has considered similar hybrid claims.

[Thou shalt not kill.  TMB]

Sixth Circuit -- Edward Kizer v. Shelby County Government

Edward Kizer v. Shelby County Government

No property interest in civil service employment, as the position was unclassified, and plaintiffs never challenged the designation - no equitable remedy from state "policy of inactivity" precluding challenge. 

Fourth Circuit -- US v. Jason Simmons

US v. Jason Simmons

When assessing priors (here for sentencing under the Controlled Substances Act), the prior sentence must be considered absent any aggravating factor enhancements not applied by the sentencing court, nor is it legit for the second court to consider hypothetical aggravating factors.

Dissent one (short) - plain language - statute says "punishable by"

Dissent two - When Scotus remanded 'in light of' a certain decision, that's not a positive command - in that the (now-controlling) decision was immigration, not crim and had a differently structured statute,it's not a slam dunk.

Third Circuit -- Michael McKenna v. City of Philadelphia

Michael McKenna v. City of Philadelphia

Where a participant in the dismissal of an employee is motivated by animus, a subsequent disciplinary procedure cannot immunize the termination from considerations of that animus - it remains a matter of proximate cause.

Third Circuit -- Animal Science Prod Inc v. China Minmetals Materials Imports

Animal Science Prod Inc v. China Minmetals Materials Imports

District Court's Sherman Act jurisdiction over foreign mineral price-fixing is a question for merits, not a matter to be decided under subject matter jurisdiction.  12(b)(6), not 12(b)(1)  (this shifts the presumptions and reduces the court's ability to go all sua sponte on the question).

Third Circuit -- Eustace Simon v. Atty Gen USA

Eustace Simon v. Atty Gen USA

The availability of a visa is one of many factors to be considered in granting a continuance in an immigration proceeding, and is not of itself dispositive.  

Third Circuit -- Gray Holdco Inc v. Cassady

Gray Holdco Inc v. Cassady

"No waiver" term in contract does not bar consideration of whether party invoking arbitration unduly prejudiced by delay the determination.

The amount of time between beginning the litigation and invoking arbitration is not of itself dispositive, but given the lively motion practice, the court found both substantive and procedural prejudice.

First Circuit -- Kaplan v. First Hartford Corp.

Kaplan v. First Hartford Corp.

Affirmed per curiam with no discussion.

First Circuit -- Kindelan v. Disability Management

Kindelan v. Disability Management 

A week after clean bill of heath, extraordinary self-reported pain is not grounds for coverage where doc doesn't run any further tests.

First Circuit -- Vazquez-Rijos v. Anhang

Vazquez-Rijos v. Anhang 

Dismissal for missed deadlines & poor case management upheld.

Second Ciruit -- Cox v. Warwick Valley Cent. School Dist.

Cox v. Warwick Valley Cent. School Dist.

District Court summary judgment of S1983 claims against school administrators upheld.

No First Amendment issue, as removing the student from the classroom for the afternoon in response to a an essay topic is a decision due due unusual deference, and does not constitute retaliation.


Parents retained custody of child during coerced psychological examination, so no 14A deprivation.

Second Circuit -- In re Literary Works in Elect. Databases Copyright Litig.

In re Literary Works in Elect. Databases Copyright Litig.

In Tasini, Scotus held that contributors to periodicals might be due recompense for the conversion of their work into subsequently sold electronic forms.  Here, the Second Circuit rules that a class of these contributors was improperly certified.

Held:


The release of future claims by the class was kosher, as tied to the same factual predicate.


The de facto subclass of claimants holding unregistered claims are unduly hurt by a contingent term in the deal which would further cap their recovery after the percentage of monies due them relative to the rest of the class was determined.  Certification was therefore an abuse of discretion under the adequacy requirement.


Partial dissent: The contingent term reflected a value judgment just as valid as the percentage call.  No DP violation in settlement.

Federal Circuit -- CYBERSOURCE CORP. V. RETAIL DECISIONS, INC.

CYBERSOURCE CORP. V. RETAIL DECISIONS, INC.

Patent denied as a vague mental process as opposed to a machine or transformation, despite the fact that it references the internets.

DC Circuti -- Grant Anderson v. Eric Holder, Jr.

Grant Anderson v. Eric Holder, Jr.

DC implementation of sex offender registration law held to be civil regulation, not criminal & punitive, as a result, plaintiff has no ex post facto claim to bar registration.

DC Circuit -- Forsyth Memorial Hospital, Inc v. Kathleen Sebelius

Forsyth Memorial Hospital, Inc v. Kathleen Sebelius

Denial of rehearing en banc.

Dissent: Retroactive rulemaking can't be legitimated by adoption in post-hoc adjudications.

Tenth Circuit -- Aviva Life & Annuity Company v. FDIC

 Aviva Life & Annuity Company v. FDIC

 FDIC determination (reversing earlier lower-level findings) that accounts are not entitled to annuity protections given lack of designation in bank records as annuities is not arbitrary/capricious.

Ninth Circuit -- BRUCE DOUGHERTY V. CITY OF COVINA

BRUCE DOUGHERTY V. CITY OF COVINA

Charge of child molestation insufficient grounds for a warrant to search computer for pr0n.  Circuit split flagged.  Qualified immunity, though, as matter of first impression in the Circuit.

Eighth Circuit -- United States v. Marcellus Watson

United States v. Marcellus Watson

No Confrontation Clause violation where state does not produce objects that police testify to seeing on deft's person (photo of gun on cell phone, belt holster).

No error in introduction of videotape on which officers inform deft that another person alleges that deft shot at them.

Blanket self-authenticating paragraph suffices to authenticate several official documents.

Possession of firearm while drug-runnin' gets the sentencing bump for prior crimes of violence.

Eighth Circuit -- Iowa Assurance Corporation v. City of Indianola

Iowa Assurance Corporation v. City of Indianola

City land use ordinance requiring all properties with a certain kind of racing car to be fenced in is not a regulatory taking under Loretto as there's no exclusion, or under Nollan as there is no sacrifice of property. 

Eighth Circuit -- Badger Capital, LLC v. Chambers Bank of North AR

Badger Capital, LLC v. Chambers Bank of North AR

No error in dismissal of investors' claim of fraudulent concealment as there was no evidence that the bank saw papers constructively establishing  its escrow agency in a relevant transaction.

Eighth Circuit -- United States v. A. Stover, Jr.

United States v. A. Stover, Jr.

No need for court to precisely track the injunction statute when issuing findings in support of the injunction.

No error in permanent injunction requiring affirmative conduct - notifications to tax clients and the government.

Requiring IRS approval for future tax schemes is not an impermissible interbranch delegaiton.

Free Speech argument waived, foreclosed by precedent as tax preparation is commercial speech.

Eighth Circuit -- Erdman Company v. Phoenix Land & Acquisition

Erdman Company v. Phoenix Land & Acquisition

No error in district court finding that compulsory arbitration on counterclaims would prejudice the pending civil action - further, there is no need to prove prejudice to bar compulsory arbitration where a party attempts to pursue a remedy simultaneously through arbitraiton and litigation.

Eighth Circuit -- Archie Bear v. John Fayram

Archie Bear v. John Fayram

No error in District Court's holding that the text of the AEDPA statute was in the prison library.

The fact that AEDPA is tolled only at the time of filing a state habeus petition derives clearly from the statute - lack of clarifying caselaw in the library did not constitute a denial of access to the courts.

Seventh Circuit -- Linda Florek v. Village of Mundelein

Linda Florek v. Village of Mundelein

No error in dismissal of Fourth Amendment  S1983 claim against police for not getting aspirin to person at scene of warranted search.  Plaintiff had asked for aspirin, and was later taken to hospital after reporting chest pains.

No error in court barring expert testimony on the appropriate length of time between door-knocking and battering-ram-battering.

Seventh Circuit -- Lady Di's Incorporat v. Enhanced Services Billing

Lady Di's Incorporat v. Enhanced Services Billing

When filing a class-action suit against a company for putting unauthorized services on your phone bill, first make sure that you didn't order the services.  In an astonishing display of gumption, plaintiffs press on.

Court holds that the state phone billing regulation isn't fit to borrow for proof of unjust enrichment and/or deception, as the statute applies to phone companies, not the service-provider defts here.  As there's not provable foul, there's insufficient commonality for certification.

Sixth Circuit -- USA v. Steven Green

USA v. Steven Green

Former serviceman tried under statute giving federal criminal jurisdiction  to those not covered by UCMJ but who committed offenses while in the services.

Held: 

Standing - military constructive waiver of jurisdiction did not operate to guarantee the jurisdiction of the district court.

Deft's discharge was valid, despite missing some elements required by Army rules, as there was a valid discharge certificate, final accounting of pay, and "a clearing process."

The Act giving the federal criminal courts jurisdiction does not violate SOP, despite the level of discretion afforded the Executive in deciding whether to join UCMJ defts to civilian defts.

No 14A violation under class-of-one -- as the charging decision happened after discharge, there was no similarly situated comparator - additionally, no ill-will, and insufficient proof of arbitrariness.

No Due Process violation by Army's discharge then prosecution, as the discharge happened before the crimes came to light.

(Prosecution in Iraq impossible, given immunity of soldiers.)


Concurrence - Majority disses the army in dicta & I don't join that line of the opinion.

Sixth Circuit -- Nat'l Air Traffic Controllers v. Sec., Dep't of Transportation

Nat'l Air Traffic Controllers v. Sec., Dep't of Transportation

Suit by air controllers challenging the privatization of a certain classification of air traffic control towers.

Held - a statute which implicitly legitimized the privatization is on-point, as it should be broadly construed.

Standing - as none of the individual plaintiffs can now claim a harm, and the organizational standing was predicted on a question of law that has been resolved, earlier court decisions holding that plaintiffs had Article III and prudential standing do not bind as the law of the case.  Properly moot.

Fifth Circuit -- ASARCO, Incorporated, et al v. ASARCO, L.L.C., et

ASARCO, Incorporated, et al v. ASARCO, L.L.C., et

Bankruptcy court reimbursement order sufficiently final for appellate jurisdiction - circuit split with C2 flagged.

Reimbursement for due diligence to all bidders  in a multi-step auction is properly a business judgment expense, not an administrative cost for the estate.

Fourth Circuit -- National Electrical Manufacturers v. US Department of Energy

National Electrical Manufacturers v. US Department of Energy

Chevron deference to agency ruling on the sizes of electric motors covered by a rulemaking.  Legislative history suggesting otherwise dissed.

Dissent: Whole Act, Legislative History, prior agency holdings otherwise.

Third Circuit -- Brandao v. Atty Gen USA

Brandao v. Atty Gen USA

Where an illegitimate child immigrates with his parent who is subsequently naturalized prior to his 18th birthday, derivative citizenship cannot be granted if the law in their home country does not recognize illegitimacy.

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

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

Mortgage/ TILA claim.

As threshold matter, the appeals clock runs not from the time when judgment is entered against all defendants, but from when final liability (more than ministerial functions) is apportioned.

The testimony of the borrower is sufficient to burst the bubble of the presumption of receipt - jury instruction suggesting otherwise is error.

Third Circuit -- USA v. Michael Waller

USA v. Michael Waller

Error in jury instruction on Intent which said that jury should consider anything the deft said or didn't say, as this implicates post-Miranda silence.  Vacate and remand, as gov't must prove beyond reasonable doubt that the error was harmless, and ain't no way that's gonna happen.

Third Circuit -- Secretary of Labor v. ConocoPhillips Bayway Refinery

Secretary of Labor v. ConocoPhillips Bayway Refinery

 Company fined by DOL for asbestos violations, but reversed by OSHA Commission, which held that the Department  must identify the case-specific scenario for asbestos harms. 

The Court here reverses the Commission, holding that where the company has actual or constructive knowledge of the violation, violates standards, and engages in work presumed to pose a danger of asbestos release, no case-specific evidence need be adduced.

First Circuit -- US v. Berk

US v. Berk 

Errata, viz: 

On Page 15, footnote 7, line 7, "it an was error" should read "it was an error."

First Circuit -- Adelson v. Hananel

Adelson v. Hananel 

Errata 

First Circuit -- US v. Dellosantos

US v. Dellosantos 
US v. Szpyt 

Appellants argue insufficiency of the evidence, but Court holds instead that the evidence at trial prejudicially varied from the charges in the indictment .  The indictment charged that the two defts conspired to distribute cocaine and MJ - here, the Court holds that these were two separate conspiracies, and the disparity between the unitary conspiracy alleged and the double conspiracy proven is sufficient to vacate the convictions.

Concur/dissent - defts had sufficient awareness of the multiple plans to make it a single conspiracy.

Second Circuit -- In re: Bernard L. Madoff Inv. Sec. LLC

In re: Bernard L. Madoff Inv. Sec. LLC

The Dickensian-named ponzi windup continues.

Here, customers appealed a bankruptcy court ruling that the amount owed them should be determined by the amount of money they deposited with the scheme, not the amount of money in their statements (inflated by fictitious earnings).  First, the court holds that they are customers for purposes of the statute, as the monies were deposited for the purpose of investing in securities.  Second, the court ratified the 'net investment' method of calculating net equity, but limited its decision to extraordinary cases such as this where the books were so thoroughly and capriciously cooked.

DC Circuit -- Estate of Mark Parsons v. Palestinian Authority (8/12)

Estate of Mark Parsons v. Palestinian Authority

Family of man killed while providing security for a State Department convoy in the Gaza Strip filed suit against the PLO under the Anti-Terrorism Act of 1991 on theories of both material support and conspiracy - District Court granted summary judgment to defts, Circuit reverses on material support, but in tangled melange of dissents, declines to speak to scienter requirement.

DC Circuit -- In re: Antoine Jones

In re: Antoine Jones

Dismissal of a S1983 claim on the grounds that it would amount to a collateral attack on conviction counts as one of the PLRA three strikes.

DC Circuit -- DHS v. FLRA

DHS v. FLRA

No review of finding that reassignment of DHS workers was an unfair labor practice, as (1) the working agreement was not a CBA, and therefore could not represent negotiated assent to the change and (2)  the change in work was significant enough.

DC Circuit -- In re: David Kissi (8/12)

In re: David Kissi
 In re: David Kissi

PLRA three strikes rule applies to mandamus filing fees related to pending civil actions. 

Eleventh Circuit -- USA v. Robert D. Singletary

USA v. Robert D. Singletary

Restitution  order of 1M set aside.

It thus appears that the court merely intuited losses of $1 million for purposes of its § 2B1.1(b)(1) determination and then used that figure in awarding the United States forfeiture.

(In fairness, gov't had asked for 3M)

Tenth Circuit -- Larry Snyder and Company v. Miller

 Larry Snyder and Company v. Miller

Wher flaws are later found in construction, the specific remedy terms in the sub contract govern - not the general flow-through term binding all subs and contractors to the project developers' decisions.

Tenth Circuit -- United States v. Cooper

United States v. Cooper

Tax & wire fraud -

Sufficient evidence.

No Brady violation where the evidence is cumulative to other stff in the record calling the deft a schmuck - insufficiently stark contrast to provide a new angle on the impeachment of the witness.

Warrant not defective, as specific grounds were cited, not mere conclusions.

Warrant sufficintly particular (when read in the context of the affadvits).

No error in denial of Franks hearing.

Ninth Circuit -- USA V. MIGUEL VASQUEZ

USA V. MIGUEL VASQUEZ

Warrant had probable cause, as informants identified the deft as  the leader of a gang, and Magistrate could reasonably conclude that records would be found at his house.

Warrant was not overbroad, as it was only for documents relating to the gang.

No error in denial of Franks hearing to challenge informant's characterization of him as  "president" of the group, as mere officer would have sufficed for the search.

Sufficient Evidence.

Sentence substantively reasonable, even though several RICO defts in same group got less.

Ninth Circuit -- MICHAEL HOWARD V. OREGONIAN PUBLISHING CO.

MICHAEL HOWARD V. OREGONIAN PUBLISHING CO.

Where companies purchase drivers license data for the purpose of an undefined future use, such acquisition is not a violation of Act which specifies the authorized uses of such data, as stockpiling is not a use.   

Ninth Circuit -- IN DEFENSE OF ANIMALS V. UNITED STATES DEPARTMENT OF THE INTERIOR

IN DEFENSE OF ANIMALS V. UNITED STATES DEPARTMENT OF THE INTERIOR

The Misfits II: Likely Success on the Merits

Interlocutory appeal seeking preliminary injunction barring roundup of wild horses and burros dismissed as moot, as the roundup has already happened.  Balance of civil action still pending.

Dissent: Although the roundup happened, the animals are still in temporary holding, and relief is still possible.

Ninth Circuit -- NDOC V. RUSSELL COHEN

NDOC V. RUSSELL COHEN

 Ban on inmates possessing typewriters upheld.

1 - Not unduly retaliatory, as it was enacted after a murder using one.
2 - No violation of access to the courts, as although the Nevada Supreme Court requires typewritten briefs, inmates' injury is speculative, as no appeals are in the record.
3 - No 14th Amendment violation as it is a rule of general application
4 - No error in cutting short discovery.

Eighth Circuit -- United States v. David West Dixon

United States v. David West Dixon

Crim -

1. Sufficient Evidence
2. No error in court not dismissing sua sponte a venireman who indicated possible bias towards police.
3.  No procedural/substantive error in sentence.

Eighth Circuit -- Jerome C. Anderson v. Hess Corporation

Jerome C. Anderson v. Hess Corporation

Under North Dakota law, a drilling company need not spud the well to fulfill a boilerplate drilling requirement in a mineral lease.

No error in District Court not certifying questionn to state supreme court, given plain meaning and caselaw.

Eighth Circuit -- United States v. Traves Rush

United States v. Traves Rush

Initial  encounter was consensual - followed by marked police car, deft had to walk past armed officer in his path.  In that he could have done so, consensual conversation.

Placing deft in back of police car not unreasonable after discovery of ~2K, given bank robbery within the hour.

Exclusion of radio calls saying getaway car was red Chrysler as hearsay (when introduced by deft to show unreasonableness of initial seizure of blue Chrysler)  harmless.

Eighth Circuit -- United States v. Edward Boroughf

United States v. Edward Boroughf

Appellate waiver enforced over Anders challenge to reasonableness of sentence..

No error in prior being counted despite being similar to and within timeframe of presently charged conspiracy, as court could reasonably find it to be unrelated.

Eighth Circuit -- Ninoska Lopez-Amador v. Eric H. Holder Jr

Ninoska Lopez-Amador v. Eric H. Holder Jr

Immigration -

Insufficient past persecution  when generally targeted by snipers at a demonstration & encountering vehicle checkpoints.

Insufficient likelihood of future persecution based on sexuality, as the only evidence in the record refers to transgender individuals.

Seventh Circuit -- Kenneth Carter v. Pension Plan of A Finkl

Kenneth Carter v. Pension Plan of A. Finkl

Where a pension plan starts windup but then reverses, an amendment to the Plan offering annuities on windup irrespective of employment status with the company:

(1) Doesn't violate ERISA, as it's nothing to do with retirement - workers are hoping to gain the annuity without retiring.

(2)  Doesn't violate the anti-cutback rules within the plan, as Administrator could reasonably rule that it was only triggered by the windup that didn't happen.

No error in calculation of certain kinds of bonuses as income for purposes of the plan, given longstanding practice of employer.

No success on the merits means no fee for you.

Seventh Circuit -- USA v. Charles Robertson

USA v. Charles Robertson

Where resentencing for violation of supervised release departs from the range guidelines and the sentencing judge doesn't even reference the guidelines in sentencing, vacate & remand.

(Till Eulenspiel moment:  Deft served ~10 yrs in prison for growing MJ, arrested in last days of 8 yrs. supervised release while tending MJ plants.  When asked why, he said that he liked the way the plants looked, and he liked to smoke them.)

Sixth Circuit -- USA v. Michael Judge

USA v. Michael Judge

No error in not explaining sentence sufficiently, as court dealt with all args advanced by deft.

No error (abuse of discretion standard) in court possibly considering a future 35(b) motion to reduce sentence when imposing initial sentence.  

 

Fourth Circuit -- US v. Tyerail Massenburg

US v. Tyerail Massenburg

Lack of eye contact and standing a bit apart from the others is insufficient grounds for a frisk during a Terry stop where the police are responding to an anonymous report of shots fired.

The collective knowledge rule (knowledge of instructing officer imputed to executing officer) does not operate in the aggregate (the sum of all knowledge possessed by policemen at the scene) - some degree of connection or instruction is required.

Third Circuit -- People of the Virgin Islands v. Tydel John

People of the Virgin Islands v. Tydel John

No reasonable reliance exception for faulty search warrant for pr0n based on investigation of child abuse.

First Circuit -- Mississippi Public Employees v. Boston Scientific Corp.

Mississippi Public Employees v. Boston Scientific Corp.

No reasonable evidence of enough scienter after initial discovery where:

- Manufacturer contemplated change in device which might or might not necessitate a recall - no evidence as to ultimate impact on stock viability.

- Manufacturer insisted that greater physician familiarity with the device would reduce the problem of sticky stents.  (It didn't lull the market to any fundamental problems with the device.)

- Partial recall publicly described by CEO as "not tip of the iceberg" - CEO said privately that he wasn't confident the situation was under control.

A/C Privilege -

The fact that discussions were about how to avoid future problems does not remove the privilege.

No t improper for company to direct all relevant internal communication via the GC's office - such funnelling does not manufacture privilege.

Second Circuit -- Goodrich v. LIRR Co.

Goodrich v. LIRR Co.

For IIED liability under FELA, the conduct must occur within the zone of physical danger contemplated by the statutory scheme; a railroad electrician whose co-worker publicly identified him as HIV-positive cannot pursue a claim.

Second Circuit -- John Wiley & Sons, Inc. v. Supap Kirtsaeng

John Wiley & Sons, Inc. v. Supap Kirtsaeng

Big holding - The First Sale Doctrine of S109 does not apply to works manufactured outside of the United States.   S602, Which would otherwise bar the unauthorized importation of such works, governs.  


No plain error in not giving "no set law on this yet" jury instruction, as deft had chance to present that theory during trial.


No error in admitting evidence of gross revenues, which included books made by other companies.


Dissent:  No requirement in statute that the works be produced domestically.

Second Circuit -- Briscoe v. City of New Haven

Briscoe v. City of New Haven

In Ricci, the Supreme Court held that a city could not refrain from certifying firefighter exam results from fear of a disparate impact Title VII suit, even thogh certification risked a disparate treatment suit.

Held: (1) The dictum in Ricci  does not shield the city by nonparty preclusion from a disparate impact suit; (2) Crossing the streams of disparate impact statutory law and disparate treatment caselaw would be a really, really bad idea; (3) The one-line dictum is insufficient grounds for a 12(b)(6) dismissal by the lower court.