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News & Developments: Appellate Buzz
May 22, 2012
Supreme Court Rules Mother Nature Is Original Patent Holder
The Supreme Court has demonstrated its renewed interest in patent law by handing down another important opinion that addresses an issue that has been fundamental to patent law for decades: Laws of nature cannot be protected by patents. The Supreme Court reaffirmed this doctrine in the context of a modern healthcare kit manufactured by Prometheus.
— Jordan B. Cherrick, St. Louis, MO
Supreme Court Overturns Lower Court in Jerusalem Passport Case
In an opinion for the Court authored by Chief Justice Roberts, the Court engaged issues involving the fundamental relationship between the judicial, executive, and legislative branches of the government.
Petitioner Menachem Zivotofsky is the child of American citizens and was born in Jerusalem, Israel. Federal law provides that a child who is born in another country and has American parents is automatically granted U.S. citizenship. Zivotofsky's parents requested that, consistent with section 214(d) of the Foreign Relations Authorization Act of Fiscal Year 2003, that Israel be listed as their son's place of birth on his birth certificate.
— Jordan B. Cherrick, St. Louis, MO
Supreme Court Limits Sua Sponte Timeliness Defense Authority
In an opinion delivered by Justice Ginsburg, the Supreme Court considered the scope of the appellate court’s authority to address threshold defenses to a habeas petition that the state failed to pursue in the court below. The court considered: (1) whether a court of appeals has the authority to address the timeliness of a habeas petition on the court’s own initiative, and (2) if the court of appeals has such authority, whether the state’s representations to the district court in this case nonetheless precluded the Tenth Circuit Court of Appeals from considering the timeliness of the subject habeas petition.
— Lara O’Donnell, Berger Singerman LLP, Miami, FL
May 8, 2012
Nguyen Confirmed to Ninth Circuit
Jacqueline H. Nguyen has been confirmed by the Senate for a seat on the Ninth Circuit Court of Appeals. She is the first Asian American woman to sit on a federal appeals court.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
May 8, 2012
Former Ninth Circuit Chief Judge Dead at 93
Former Chief Judge James R. Browning of the Ninth Circuit has died at the age of 93.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
May 1, 2012
Court Lacks Jurisdiction to Review Revocation of Visa Petition
Addressing an issue of first impression in the Sixth Circuit, the court in Mehanna determined that it did not have jurisdiction to review a decision of the secretary of homeland security to revoke a visa petition.
— Brittany Parling, Skadden, Arps, Slate, Meagher & Flom LLP, Chicago, IL
April 30, 2012
Committee Presents CLE Programs on Appellate Courts in D.C.
At the Section of Litigation Annual Conference in Washington, D.C., April 19–20, 2012, the Appellate Practice Committee presented a series of three programs about the different federal appellate courts resident there: the U.S. Supreme Court; the D.C. Circuit Court of Appeals; and the Federal Circuit Court of Appeals.
The U.S. Supreme Court
In this program, a panel consisting of advocates who frequently argue before the Court, Lisa Blatt of Arnold & Porter and former Solicitor General Seth Waxman of Wilmer Hale, as well as Tony Mauro, longtime Supreme Court reporter for the National Law Journal, discussed the changing oral advocacy before the Court. The committee’s own Kannon Shanmugam, who also regularly appears before the Supreme Court, acted as moderator.
The panel members agreed that since former Chief Justice Rehnquist replaced Warren Burger, Supreme Court justices’ questions have become quicker and more numerous, giving advocates very little time to respond. In recent years, justices often interrupt each other to fire their questions. Seth Waxman noted an advocate can find himself or herself in the position of having three separate questions pending at once, trying to decide which to answer first and how to remember the other two. Justice Scalia is known as one of the most aggressive questioners but the newest members, Justices Sotomayor and Kegan, are as well, contributing to an even more furious pace. Chief Justice Roberts, however, from his experience as an advocate before the Court, appears more willing at the end to give lawyers time to complete their thoughts or even go a little overtime in recognition of the pace of questioning.
Waxman described Supreme Court oral argument now as attempting to teach a class to high-school seniors with very short attention spans minus a teacher’s ability to impose any discipline. Tony Mauro described it as a free-for-all, with judges climbing all over each other. The questions most commonly occur in what Lisa Blatt described as the “dance of the hypotheticals.” As a result, most Supreme Court advocates focus their preparation on moot courts to insure that an answer is ready for any hypothetical. Mauro highlighted Waxman’s point that advocates do not get a chance to consider a question before answering, by recounting an anecdote about Justice Scalia. When an attorney paused a second too long before answering, Scalia told the lawyer, “you have four choices; yes, no, I don’t know, or I’m not telling.” Fortunately for the audience, all of the members of the panel were telling, in a lively and informative discussion.
The D.C. Circuit Court of Appeals
This program’s panel consisted of Deputy Attorney General for Civil Appeals Beth Brinkman, Cliff Sloan of Skadden, and Richard Bress of Latham & Watkins. The moderator was Larry Rosenberg of Jones Day, former chair of the committee. The panel discussed the unusual features of the D.C. Circuit, including its unique geographic scope limited on one hand to only the District of Columbia but, because of the presence of government agencies’ headquarters, deciding cases with national impact. The caseload is different as well, with a heavy diet of administrative law. Cliff Sloan pointed out the D.C. Circuit’s special relationship with the Supreme Court, which currently employs four former D.C. Circuit judges.
Deputy Attorney General Brinkman provided some interesting statistics. The U.S. government is a party in more than 75 percent of the D.C. Circuit’s cases. Many of the judges come from the Department of Justice or the U.S. Attorney’s Office—in fact, 50 percent of the sitting judges do—which contributes to a diluted deference to the government agencies and a greater predilection to second-guess the government. Further, 42 percent of the court’s cases come from administrative agencies. The next closest (excluding immigration cases) is the Fourth Circuit with only two percent. As a result, agencies have an institutional history with the court and its memory of how agencies have acted in the past influences review of present actions. Cliff Sloan pointed out the importance of an advocate knowing the agency’s history, therefore, even when not directly related to the issue in your case. Due to the large proportion of the docket taken by these cases involving government agencies, issues such as standing, ripeness, mootness, and political questions arise more frequently. The private attorneys on the panel argued that the government often invokes these issues as obstacles to substantive review.
The panel’s discussion of the D.C. Circuit concluded with each member giving tips for effective advocacy. Richard Bress pointed out that the court’s smaller docket meant the judges were often more prepared and have no patience with evasive lawyering, so answering their questions is a must. Also the judges are in real-time contact with their clerks by laptop, so any mistake as to the record or the case law will be flagged to a judge and immediately pounced on. Cliff Sloan stressed knowing the record, even a very complex administrative record, because the judges’ questions have a high degree of sophistication. Deputy Attorney General Brinkman concluded that an advocate should not believe the published allotment of time for an argument in the D.C. Circuit. While the calendar (which is often released months in advance) may say 30 minutes, if the court is interested in a matter, it is not unusual for the argument to go on for 45 minutes or more.
The Federal Circuit Court of Appeals
The committee’s final program on the Federal Circuit was a mock argument of an intellectual property case before Judges Newman, Plager, and Bryson of the Federal Circuit. The advocates were William Lee of WilmerHale and Allison Kerndt of Covington & Burling. The moderator was Gregory Castanias of Jones Day. The hypothetical dealt with jurisdiction over declaratory judgment actions concerning the validity of a patent. Following a spirited and proficient argument, the members of the panel discussed the broader aspects of oral advocacy generally and before the Federal Circuit specifically. Judge Bryson said he thinks an oral argument has been good when he knows more about the case than he did before the argument. Judge Plager said that, having read the briefs and the key cases, he is usually about 85 percent decided on the result, but sometimes at oral argument an advocate loses his or her 85 percent position. Judge Newman noted that when the Federal Circuit began, technology made up only 17 percent of America’s GDP while today it is 84 percent. Also, historically, patents were only 10 percent of the court’s caseload; now they are 30 percent.
Asked one thing that an advocate should not do, Judge Bryson immediately responded, “don’t dodge the hypotheticals.” He said he was tired of hearing the same five words—“that is not this case”—saying it was “absolutely maddening” when attorneys would not answer his questions. Judge Plager followed this up by saying that if a yes or no question is asked, answer it that way, then explain—“don’t evade.” Also, he said do not step on the judge’s question; if they interrupt you, let them. Judge Newman concluded, do not answer a question by saying “I am getting to that later”—odds are you never will, so answer the question now.
All three of the committee’s programs on D.C. appellate courts were well received and well attended. The long months of preparation by many committee members paid off, further enhancing the committee’s reputation for delivering outstanding CLE programs.
— Tom Donlon, Robinson & Cole LLP, Stamford, CT
April 27, 2012
New York Court Sanctions Abusive Attorney
The New York Appellate Division, First Department has sanctioned an attorney for his behavior at a deposition. The court noted that the attorney had
repeatedly interrupted the questioning and made improper objections and lengthy speeches that had no merit. He also improperly interrupted the witness's answers and conferred with the witness (his client) mid-answer. He insulted plaintiff's counsel, Justice Solomon and her clerk, and even the court reporter, who was eventually compelled to leave the deposition due to the abuse of defendants' counsel.
The court ordered the attorney to pay $10,000 to the Lawyers' Fund for Client Protection.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
April 18, 2012
Fourth Circuit Condemns Disrespectful Language
The Fourth Circuit, in a footnote, criticized government prosecutors for using disrespectful language directed at the district court and the defendant in their brief. The court stated that the government’s brief disdained the district court's "abrupt handling" of the appellant's first case, sarcastically referred to the defendant’s previous counsel's "new-found appreciation for defendant's mental abilities," criticized the district court's "oblique language" on an issue unrelated to this appeal, insinuated that the district court's concerns "require[ ] a belief in the absurd that is similar in kind to embracing paranormal conspiracy theories," and accused the defendant of being a "charlatan" and "exploit[ing] his identity as an African-American." The court stated that such language would not be tolerated, but did not impose sanctions.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
April 13, 2012
Third Circuit Reviews All Issues, Even Those Not Specified
This was an action for violation of the Family and Medical Leave Act (FMLA), for retaliation for exercising FMLA rights, and for violations of the Rehabilitation Act, the Americans With Disabilities Act, and the Pennsylvania Human Relations Act. The district court granted summary judgment on all claims other than the FMLA claim. On reconsideration, it granted summary judgment to the defendant on the FMLA claim. The court then denied the plaintiff’s motion for reconsideration.
— Robert A. Vort, Hackensack, NJ
March 19, 2012
Third Circuit Rules on Taxation of Data Colletion
The Third Circuit construed 28 U.S.C. § 1920(4), which allows taxation of “fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case.” It defined the issue on appeal as whether section 1920(4) authorizes the taxation of the charges of a discovery consultant for data collection, preservation, searching, culling, conversion, and production as either the “exemplification [or] the . . . making [of] copies of any materials where the copies are necessarily obtained for use in the case.” (Slip opinion at 15–16).
— Robert A. Vort, Hackensack, NJ
March 19, 2012
Sixth Circuit Splits over Habeas Review of Confrontation Clause Claim
In Peak v. Webb, the Sixth Circuit affirmed the district court's denial of Michael Peak's petition for a writ of habeas corpus. Peak was convicted of first-degree murder in Kentucky state court. On direct appeal, he argued that the government violated his rights under the Sixth Amendment's Confrontation Clause when it played a tape recording of his co-defendant's statement without affirmatively calling the co-defendant as a witness. The Kentucky Supreme Court rejected Peak's argument, reasoning that Peak's co-defendant was available in the courtroom and that Peak had the opportunity to call him as a witness but chose not to. After exhausting his state-court appeals, Peak filed a petition for a writ of habeas corpus in federal district court.
— Brittany Parling, Skadden, Arps, Slate, Meagher & Flom LLP, Chicago, IL
March 19, 2012
Committee to Rule on Motions to Exceed Page and Word Limits
Noting that motions to exceed page and word limits are filed in a substantial percentage of appeals, the Third Circuit established in January 2012 a standing committee simply to rule on such motions. In its announcement to the bar, the Court stated that motions to exceed the page or word limitations are strongly disfavored and will be granted only upon demonstration of extraordinary circumstances. Such circumstances may include multi-appellant consolidated appeals in which the appellee seeks to file a single responsive brief or complex/consolidated proceedings in which the parties are seeking to file jointly or the subject matter clearly requires expansion of the page or word limitations.
— Robert A. Vort, Hackensack, NJ
March 14, 2012
Order Permitting Involuntary Medication of Inmate Is Appealable
Though this is not a final judgment, the Ninth Circuit has appellate jurisdiction to review a district-court order authorizing involuntary medication of a prisoner who is in custody awaiting trial because such an order meets all three criteria justifying review under the collateral-order doctrine.
— Richard A. Derevan, Snell & Wilmer L.L.P., Costa Mesa, CA
March 5, 2012
Order Denying SLAPP Motion Not Appealable
Nevada, along with some other states, has what is called an anti-SLAPP (strategic lawsuit against public participation) statute, which in general terms permits a pretrial determination whether a case should be dismissed because it has a chilling effect on free speech. In this case, the Ninth Circuit considered whether an order denying a Nevada SLAPP motion was appealable under the collateral-order doctrine enunciated in Cohen v. Beneficial Loan Corp., 337 U.S. 541 (1949).
— Richard A. Derevan, Snell & Wilmer L.L.P., Costa Mesa, CA
March 5, 2012
Bankruptcy Court Orders Not Appealable to Ninth Circuit
In this case, third parties stored records with a company that later filed for bankruptcy. The third parties sought return of their documents from the bankruptcy trustee, and when he refused to return them, they sought an order in the bankruptcy court requiring turnover and asking that the trustee and his counsel be removed from the case. The bankruptcy court denied the motion and the district court affirmed. The third parties then appealed to the Ninth Circuit, but that court dismissed their appeal for want of appellate jurisdiction.
— Richard A. Derevan, Snell & Wilmer L.L.P., Costa Mesa, CA
March 2, 2012
Reasonableness Presumption Does Not Apply at Pleadings Stage
The plaintiffs in Pfeil sued State Street Bank and Trust, the fiduciary for two employee stock ownership plans (ESOPs) offered by General Motors. The plaintiffs, who were participants in the plans, alleged that State Street breached its fiduciary duty under ERISA by continuing to allow plan participants to invest in GM common stock even though reliable public information indicated that GM was headed for bankruptcy. The district court dismissed the complaint, holding that State Street's alleged breach of duty could not have plausibly caused losses to the plan.
— Brittany Parling, Skadden, Arps, Slate, Meagher & Flom LLP, Chicago, IL
February 29, 2012
Asbestos Injury Suit Preempted by Locomotive Inspection Act
On February 29, 2012, the U.S. Supreme Court held that state-law claims for defective design and failure to warn of the dangers of asbestos brought by a welder and machinist for a railroad carrier were preempted by the Locomotive Inspection Act.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
February 23, 2012
Second Circuit's Miner Passes Away
On February 17, 2012, Roger J. Miner of the Court of Appeals for the Second Circuit died.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
GPS Tracking Constitutes Search and Seizure
The Supreme Court unanimously affirmed the judgment of the U.S. Court of Appeals for the District of Columbia Circuit, ruling that the attachment of a global positioning system (GPS) tracking device to an individual’s vehicle and subsequent use of that device to monitor the vehicle’s movements on public streets constitutes a search or seizure under the Fourth Amendment.
— Lara O’Donnell Grillo, Jorden Burt LLP, Miami, FL
February 14, 2012
State Class Action Settlement Precludes Federal Class Certification
In March 2007, plaintiff Anthony Gooch filed a class-action lawsuit in the Middle District of Tennessee against Life Investors Insurance Co., arguing that his cancer-only insurance policy entitled him to receive the higher “list prices” that a healthcare provider sought for services and not the actual charges the provider ultimately accepted as full payment after negotiation with the primary insurer. The district court granted Gooch’s motion for a preliminary injunction against Life Investors. The district court denied Life Investors’s subsequent motion to dissolve the preliminary injunction and then granted Gooch’s motion for class certification under Rule 23(b)(2) of the Federal Rules of Civil Procedure. That same day, a state court in Arkansas issued final approval of a class-action settlement in a nearly identical lawsuit against Life Investors. Life Investors sought interlocutory appeal of the district court’s denial of its motion to dissolve the preliminary injunction and the district court’s class-certification order.
— Brittany Parling, Skadden, Arps, Slate, Meagher & Flom LLP, Chicago, IL
Ninth Circuit Strikes Down Proposition 8
A split panel of the Ninth Circuit has held that California’s Proposition 8, which prohibits same-sex couples from marrying, is unconstitutional. Writing for the majority, Judge Stephen Reinhardt said the ban runs afoul of the Equal Protection Clause, serving no purpose other than “to lessen the status and human dignity” of gays in California who could legally marry for a few months before the 2008 vote on Prop 8. The Constitution, Reinhardt wrote, citing the U.S. Supreme Court’s Romer v. Evans, does not allow for “laws of this sort.” The Court did not decide if the right to marry a person of the same sex is a fundamental right. That broader issue had been raised in the case. Judge N. R. Smith dissented, stating that he was not convinced that Prop 8 is not rationally related to a legitimate government interest, which rather than strict scrutiny he found to be the correct standard for reviewing Prop 8. Judge Smith found the “optimal parenting rationale,” that a family structure consisting of the biological parents of the children joined in marriage and the children provides the optimal setting for the responsible raising of children.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
January 24, 2012
7th Cir.:Bankruptcy Judge Lacked Authority, Direct Appeals Dismissed
In an estimated 3,200 bankruptcy cases in the Eastern District of Wisconsin during a five-year period from 2003 through 2008, Aurora Health Care, Inc. filed publicly available proofs of claim that listed the debtors’ medical-treatment information. Two groups of debtors filed separate class action lawsuits against Aurora, alleging that it violated a Wisconsin statute by disclosing their health care records without permission. The first lawsuit was filed as an adversary proceeding in the Bankruptcy Court. The second lawsuit was filed in a Wisconsin state court, and was removed to the Bankruptcy Court. All parties sought to avoid litigating the case in the Bankruptcy Court—the debtors in the first case sought to have the bankruptcy judge abstain from jurisdiction in favor of a Wisconsin state court, while the debtors in the second case sought to have the case remanded, and in both cases Aurora moved to withdraw the reference from the bankruptcy judge. The bankruptcy judge denied the debtors’ abstention and remand motions on grounds that the cases were core proceedings, and the district court denied Aurora’s motions to withdraw the reference on similar grounds. The bankruptcy judge then dismissed the debtors’ disclosure claims on Aurora’s motions for summary judgment, finding that the Wisconsin statute required proof of actual damages, and the debtors failed to point to any evidence in the record to support their assertion that the existence of actual damages was in dispute. The debtors moved for certification of a direct appeal, and Aurora joined in the motions, which were granted. The Seventh Circuit authorized the parties to proceed on direct appeal and the cases were consolidated.
— Meaghan Gragg, Hughes Hubbard & Reed LLP, New York, NY
January 18, 2012
Appellate E-Filing Is Here—More Rules and Procedures to Navigate
On January 1, 2012, the U.S. Court of Appeals for the Eleventh Circuit began allowing attorneys to voluntarily file documents electronically and receive emailed notices of docket activity. In doing so, the Eleventh Circuit joined a growing number of courts transitioning away from conventional to electronic filing of documents. In fact, every other federal circuit (except the Federal Circuit) has already exercised the discretion provided by Federal Rule of Appellate Procedure 25(a)(2)(D) and made e-filing mandatory. The Federal Circuit expects its e-filing system to be ready in May 2012.
Appellate practitioners, whether they like it or not, must now become acquainted with the e-filing systems and their protocols. Failing to understand the new procedural requirements could create problems. No attorney wants tell a client that a filing was rejected because the attorney did not comply with the court’s e-filing rules. So, here are a few tips that may help you avoid having such an embarrassing conversation with your client.
Filing deadlines are no longer governed by the time the Federal Express or UPS office closes; an attorney now has until 11:59 p.m. to e-file a brief. Do not be the attorney who, as a result of computer problems, has to argue that a brief filed at 12:01 a.m. is timely. Remember to still include a certificate of service in your filing and ensure proper service on all parties. In the Eleventh Circuit, for example, where e-filing is now only voluntary, you may still need to serve a document conventionally on an attorney not registered for e-filing. Do not assume that the advent of e-filing dispenses with the need to comply with preexisting requirements, such as submitting the required number of hard-copy briefs or submitting appendices conventionally.
At the end of the day, appellate e-filers must exercise the same diligence in understanding the new e-filing rules as they do in understanding all other rules of procedure. Thus, while e-filing may make our lives easier in many respects, it also presents new traps for the unwary. Make sure you do not succumb to them.
— Daniel B. Rogers, Shook, Hardy & Bacon LLP, Miami, FL
January 6, 2012
Appellant Must Demonstrate Facts Nullifying Consent Order's Consent
“As a general rule, a party has no standing to appeal an order or judgment to which he consented.” Hofmann, 657 F.3d at 1187. A party may appeal such an order or judgment, however, if it “deviates from the terms of the parties’ agreement, or was never consented to in the first place.” Id.
The Eleventh Circuit in Hofmann considered the appeal of a district court’s agreed order appointing a receiver-like “monitor” to oversee the defendants’ financial and business assets. Id. at 1186–87. On appeal, the defendants sought to vacate the order on the ground that it failed to accurately reflect the substance of the parties’ agreement concerning the authority of the “monitor.” Id. at 1186.
— James F. Bogan, III, Kilpatrick Stockton, LLP, Atlanta, GA
January 6, 2012
Change in Controlling Law Must Be Brought to District Court’s Attention
In Douglas Asphalt Co., 657 F.3d 1146, the Eleventh Circuit ruled that a party must bring a change in controlling law to a district court’s attention, even if the change occurs after the district court disposes of a claim. Otherwise, the issue is waived on appeal.
— James F. Bogan, III, Kilpatrick Stockton, LLP, Atlanta, GA
December 29, 2011
Premature Notice Filed after Dismissal, Before Entry of Judgment
In this case, the district court dismissed the plaintiff’s complaint for lack of standing, giving leave to amend. Before the time period for amending expired, however, the plaintiff filed a notice of appeal. Because no judgment had been entered, the notice of appeal was, therefore, premature.
— Richard A. Derevan, Snell & Wilmer L.L.P., Costa Mesa, CA
December 29, 2011
Lawyer May Appeal from Order Refusing to Quash Subpoena
Ordinarily, discovery orders enforcing subpoenas are not appealable on the theory that the subpoenaed party may refuse to comply with the subpoena and the order may be reviewed on appeal from a contempt citation following the refusal. Where the subpoena is a directed at a disinterested third party who has no incentive to risk a contempt citation, however, an order refusing to quash the subpoena is appealable. Such was the case here.
— Richard A. Derevan, Snell & Wilmer L.L.P., Costa Mesa, CA
December 29, 2011
Order Denying Request for Replacement Counsel Is Not Appealable
In this criminal case, the district court entered an order denying the defendant’s request for replacement counsel and permitting him to proceed pro se. The Ninth Circuit dismissed the defendant’s appeal from the order. The court held that the order was neither a final order, nor was it appealable under the collateral-order doctrine.
— Richard A. Derevan, Snell & Wilmer L.L.P., Costa Mesa, CA
December 16, 2011
Alaska Supreme Court Judge Morgan Confirmed to Ninth Circuit
The Senate confirmed President Obama's nomination of Alaska Supreme Court Justice Morgan Christen to a seat on the Court of Appeals for the Ninth Circuit.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
December 13, 2011
DC Circuit Holds District Court in Ted Stevens Case Did Not Err
The DC Circuit has ruled that the district court in the Ted Stevens corruption case did not err in holding two Justice Department attorneys, who prosecuted the case, in contempt without affording them the procedural protections provided by Rule 42(a) of the Federal Rules of Criminal Procedure for criminal contempt. The character and nature of the contempt were civil. Its purpose was to compel the production of documents to the defendant as the district court had ordered. The contempt was purged upon their production, the contempt was lifted, and no sanctions were imposed because the contempt finding had prompted compliance with the district court's order.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
December 8, 2011
Eleventh Circuit Affirms Summary Judgment in Transgender Case
The Eleventh Circuit has affirmed a grant of summary judgment in favor of a transgendered individual who had been hired from her job when she became a female and took on a female name. The plaintiff had been born male. The district court had granted summary judgment on her claim for sex discrimination.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
November 30, 2011
Droney Confirmed to Second Circuit
President Obama’s nomination of District Judge Christopher Droney to a seat on the Court of Appeals for the Second Circuit was confirmed by the Senate.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
November 21, 2011
No Second Amendment Violation in Seizure of Specific Firearm
In this 42 U.S.C. § 1983 action, the plaintiff brought suit alleging among other issues, violation of his Second Amendment right to bear arms against the City of Hazelwood, Missouri and its police chief, Carl Wolf (collectively, CHPD). This matter began by CHPD stopping the plaintiff for a traffic violation at which time the CHPD confiscated the plaintiff’s handgun due to a warrant out for the plaintiff’s arrest in another county. After the warrant was terminated, the plaintiff made two written requests for the return of his handgun. The CHPD refused to return the handgun due to another active warrant, which was later waived, and due to the CHPD’s procedure of requiring a court order prior to returning seized firearms.
— Matthew D. Simone, Liskow & Lewis, New Orleans, LA
November 9, 2011
DC Circuit Upholds Individual Mandate Portion of Health Care Act
The D.C. Circuit has upheld the portion of the Patient Protection and Affordable Care Act that requires individuals to purchase health insurance.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
November 4, 2011
Claim Splitting is Not Permitted Prior to Final Judgment
Katz and Infinity were minority shareholders in a real estate investment trust (REIT) owned by Archstone, a public company. Archstone entered into a merger agreement in which two investors acquired all of Archstone’s outstanding public shares. Katz and Infinity were squeezed out of the REIT and had the option of receiving either cash or stock in the newly formed entity in exchange for their shares in the REIT. Katz opted for cash; Infinity chose stock.
— Katherine S. Roth, Liskow & Lewis, New Orleans, LA
November 4, 2011
Supreme Court Again Strikes Down "Wardrobe Malfunction" Fine
The Third Circuit has struck down (again) the fine imposed on CBS for airing the “wardrobe malfunction” of Janet Jackson at the Super Bowl in 2004.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
November 1, 2011
Supreme Court Hears Oral Argument in Rehberg v. Paulk
On November 1, 2011, the U.S. Supreme Court heard oral argument in Rehberg v. Paulk. That case raises the issue of whether a government official who acts as a “complaining witness” by presenting perjured testimony against an innocent citizen is entitled to absolute immunity from a section 1983 claim for monetary damages.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
November 1, 2011
Supreme Court Hears Oral Argument in Minnecci v. Pollard
On November 1, 2011, the U.S. Supreme Court heard oral argument in Minnecci v. Pollard. That case raises the issue of whether a cause of action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), should be implied against individual employees of private companies that contract with the federal government to provide prison services, where the plaintiff has adequate alternative remedies for the harm alleged and the defendants have no employment or contractual relationship with the government.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
Oral Argument Heard in Lafler v. Cooper
On October 31, 2011, the U.S. Supreme Court heard oral argument in Lafler v. Cooper. That case raises the question of whether a state habeas petitioner is entitled to relief where the petitioner’s counsel deficiently advises him or her to reject a favorable plea bargain and the petitioner is later convicted after a fair trial, and if so, to what relief would the petitioner would be entitled.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
Oral Argument Heard in Missouri v. Frye
On October 31, 2011, the U.S. Supreme Court heard oral argument in Missouri v. Frye. That case raises the question of whether a state habeas petitioner is entitled to relief (and to what relief he or she would be entitled) where the petitioner’s counsel failed to advise the petitioner of a plea offer, which, had the petitioner known of it, he or she would have accepted rather than go to trial. The petitioner had been convicted after a fair trial and received a less favorable sentence than the plea offer.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
November 1, 2011
Supreme Court Issues Decision in Cavazos v. Smith
On October 31, 2011, the U.S. Supreme Court issued a per curiam decision, reversing the grant of a writ of habeas corpus in Cavazos v. Smith. The Court held that the Ninth Circuit had improperly substituted its judgment for that of the state court. Justice Ginsberg dissented (with Justices Breyer and Sotomayor joining), claiming that the fact-intensive case was inappropriate for review by the Supreme Court, especially where the Ninth Circuit applied the correct law.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
October 27, 2011
Brazil High Court Allows Marriage Between Women
The Brazil Supreme Appellate Court has ruled that two women can be legally married.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
October 25, 2011
Bernice Donald Sworn in on Sixth Circuit
Former District Court Judge Bernice Donald has been sworn in as a judge on the Court of Appeals for the Sixth Circuit.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
October 18, 2011
Obama Nominates Paul Watford for Ninth Circuit
President Obama has nominated Paul Watford, former chair of the Appellate Practice Committee and noted appellate attorney at Munger, Tolles & Olson, for a seat on the Court of Appeals for the Ninth Circuit.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
October 18, 2011
Oral Argument Heard in Jail Strip Search Case
On October 12, 2011, the U.S. Supreme Court heard oral argument in Florence v. Board of Chosen Freeholders of the County of Burlington. The case raises the issue of whether the Fourth Amendment permits a jail to perform a strip search of every individual arrested for any minor offense no matter what the circumstances.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
October 18, 2011
Oral Argument Heard in Deportable Lawful Permanent Resident Case
On October 12, 2011, the U.S. Supreme Court heard oral argument in Judulang v. Holder. The case raises the issue of whether a lawful permanent resident who was convicted by guilty plea of an offense that renders him or her deportable and excludable, but who does depart and reenter the United States between conviction and the commencement of the removal proceedings, is categorically foreclosed from seeking discretionary relief from removal under former section 212(c) of Immigration and Nationality Act.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
October 17, 2011
Ninth Circuit Senior Judge Robert Boochever Dies
Ninth Circuit Senior Judge Robert Boochever has died at age 94.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
October 11, 2011
Oral Argument Heard Regarding Onshore Injuries under OCSLA
On October 11, 2011, the U.S. Supreme Court heard oral argument in Pacific Operators, Offshore, LLP v. Valladolid. That case raises the issue of whether, when a worker on an oil-drilling platform is injured on land, he or she is eligible for compensation under the Outer Continental Shelf Lands Act.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
October 11, 2011
Oral Argument Heard on Arbitration under CROA
On October 11, 2011, the U.S. Supreme Court heard oral argument in Compucredit Corp. v. Greenwood. That case raises the issue of whether claims arising under the Credit Repair Organizations Act are subject to arbitration pursuant to a valid arbitration agreement.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
October 11, 2011
Oral Argument Heard in Habeas Corpus Relief Case
On October 11, 2011, the U.S. Supreme Court heard oral argument in Greene v. Fisher. That case raises the issue of, for the purpose of determining a prisoner’s entitlement to federal habeas corpus relief, what is the temporal cutoff for whether a decision of the Supreme Court qualifies as “clearly established under Federal law.”
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
October 6, 2011
Obama Nominates Patty Shwartz to Third Circuit
President Barack Obama has nominated Magistrate Judge Patty Shwartz for a seat on the Court of Appeals for the Third Circuit.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
October 5, 2011
Oral Argument Heard in Inneffective-Assistance-of-Counsel Case
On October 4, 2011, the U.S. Supreme Court heard oral argument in Martinez v. Ryan. That case raises the issue of whether a defendant in a state criminal action who is precluded by state statute from raising an ineffective-assistance-of-counsel claim, but has the right to raise such a claim in a first post-conviction proceeding, has a federal constitution claim to effective assistance of first post-conviction counsel especially with respect to his ineffective-assistance-of-trial counsel claim.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
October 5, 2011
Oral Argument Heard on Application of Ministerial Exception
On October 5, 2011, the U.S. Supreme Court heard oral argument in Hosana-Tabor Evangelical Lutheran Church and School v. EEOC. That case raises the question of whether the ministerial exception applies to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
October 5, 2011
Can Congress Take Works Out of the Public Domain?
On October 5, 2011, the U.S. Supreme Court heard oral argument in Golan v. Holder. That case raises the issue of whether the Progress Clause prohibits Congress from taking works out of the public domain.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
October 4, 2011
Can Mailroom Error Prohibit Arguing Death Sentence?
On October 4, 2011, the U.S. Supreme Court heard oral argument in Maples v. Thomas. The case raises the issue of whether a death row inmate should be defaulted from raising his or her constitutional claims based on an error made in the mailroom of his or her lawyers, especially where that issue became evident to the state, which did nothing about it.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
October 4, 2011
Oral Argument Heard on Whether Prisoner Is Always "in Custody"
On October 4, 2011, the U.S. Supreme Court heard oral argument in Howes v. Fields. The case raises the issue of whether a prisoner is always “in custody” for purposes of Miranda.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
October 4, 2011
Supreme Court Hears Oral Argument in Medicaid Case
On October 3, 2011, the U.S. Supreme Court heard oral argument in Douglas v. Independent Living Center of Southern California, Inc. The case raises the question of whether Medicaid providers can maintain a cause of action under the Supremacy Clause to enforce 42 U.S.C. § 1396a(a)(30)(A), which requires a state to adopt a plan containing “methods and procedures” to “safeguard against unnecessary utilization of . . . [Medicaid] services and . . . assure that payments are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers so that care and services are available . . . at least to the extent that such care and services are available to the general population,” by asserting that the provision preempts a state law that reduces reimbursement rates.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
October 4, 2011
High Court Hears Oral Argument in Sex Offender Registration Case
On October 3, 2011, the U.S. Supreme Court heard oral argument in Reynolds v. United States. The case raised the question of whether a criminal defendant has standing under the Sex Offender Registration and Notification Act to raise claims concerning related rules issued by the attorney general.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
September 23, 2011
Second Circuit Holds Incarceration Not Affirmative Act of Withdrawal
The Second Circuit held that incarceration does not constitute an affirmative act of withdrawal from a conspiracy. In United States v. Leslie, the court held that all losses caused by a conspiracy could be imputed to one of the coconspirators for the purposes of sentencing even though he had been incarcerated while some of the losses had been incurred. The defendant argued that his incarceration constituted an act of withdrawal, but the Second Circuit disagreed.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
September 23, 2011
Judge Jacqueline H. Nguyen Nominated to Ninth Circuit
President Obama nominated Judge Jacqueline H. Nguyen to the U.S. Court of Appeals for the Ninth Circuit. Judge Nguyen currently sits as a district judge of the District Court for the Central District of California.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
September 23, 2011
Seventh Circuit Upholds Dismissal of Deficient Complaint
The Seventh Circuit upheld the dismissal of a complaint based in large part on the deficiencies of the drafting of the document by the plaintiff’s attorney. To make matters worse for that attorney, the court found that the same deficiencies in the brief also appeared in his appellate brief, and issued an order requiring the attorney to show cause why he should not be suspended from practice before the Seventh Circuit. The court also sent a copy of its decision to the Attorney Registration and Disciplinary Commission of Illinois to take such steps as it sees fit.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
September 23, 2011
Circuit Judge Pamela Ann Rymer Passes Away
Circuit Judge Pamela Ann Rymer of the Ninth Circuit died of cancer on September 21, 2011.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
September 22, 2011
Award Reversed, "Logical and Precedential Force" Behind Removal
The plaintiff brought a shareholder derivative suit alleging financial misconduct of the company’s principal officers. At issue in the appeal was whether the district court properly granted an attorney-fee award in connection with the removal of the case from the D.C. Superior Court.
— Jason P. Kairalla, Jorden Burt LLP, Miami, FL
September 21, 2011
Sanctions Upheld Against Attorney Questioning Court's Competence
The Maine Supreme Court has upheld the sanction it imposed against an attorney whose appellate briefs had included intemperate, unfounded accusations regarding the competence and independence of the trial court.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
September 9, 2011
Fourth Circuit Affirms Dismissal in Chinese Infant-Formula Case
In Jiali Tang, et al. v. Synutra Int’l, Inc., the Fourth Circuit Court of Appeals affirmed the dismissal of a products-liability action related to the 2008 melamine contamination in China on forum non conveniens grounds.
The lawsuit arose out of the widespread contamination of infant formula with melamine by Chinese infant-formula manufacturers. The Chinese government established a fund to compensate the children and families affected by contaminated infant formula and some victims attempted, with limited success, to bring civil lawsuits in China’s courts in lieu of accepting compensation from the fund. The plaintiffs in this matter took a third approach, opting to institute an action against Synutra, an Illinois corporation with its principal place of business in Maryland, seeking to recover damages for injuries caused by one of its wholly owned subsidiaries in China. Synutra moved to dismiss the complaint on, inter alia, forum non conveniens grounds, contending that China is a more convenient forum for the plaintiffs’ claims. The U.S. District Court for the District of Maryland granted the motion to dismiss.
— Meghan Skirving Thelen, Ellis & Winters LLP, Raleigh, NC
September 9, 2011
Senate Confirms Bernice Donald to Sixth Circuit
The Senate has confirmed by a 96–2 vote President Obama's nomination of U.S. District Judge Bernice Donald to a seat on the Sixth Circuit.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
September 9, 2011
Fourth Circuit Holds Virginia Lacks Standing in PPACA Case
The Fourth Circuit has held that the state of Virginia lacked standing to bring an action challenging the constitutionality of the Patient Protection and Affordable Care Act.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
September 2, 2011
Supreme Court Rules on Exclusionary Rule, Police Conduct
In an opinion delivered by Justice Alito, the Supreme Court held the exclusionary rule did not apply where police conduct conformed with binding precedent that was later overruled. Here, police had searched the defendant’s vehicle incident to arrest. It was undisputed that the search complied “to the letter” with existing Eleventh Circuit precedent. Two years after the search had taken place, however, the Supreme Court adopted a new rule in Arizona v. Gant, 556 U.S. 332 (2009), which required that during an automobile search incident to arrest, (1) the arrestee must be within reaching distance of the vehicle during the search, or (2) police must have reason to believe the vehicle contains evidence relevant to the crime of arrest.
— Lara O’Donnell Grillo, Jorden Burt LLP, Miami, FL
September 2, 2011
Should Supreme Court Arguments Be Televised?
Whether the U.S. Supreme Court should follow the Canadian Supreme Court’s practice of televising oral arguments was a central topic at a program at the ABA Annual Meeting in Toronto on August 5 sponsored by the Appellate Practice Committee. The program, entitled, “Our Highest Courts: A Comparison of the Canadian and United States Supreme Courts,” featured a panel of Justice Ian Binnie of the Canadian Supreme Court, the Canadian appellate practitioner Thomas Heintzman, the former D.C. Circuit judge and Solicitor General Ken Starr, and the former Solicitor General Drew Days. Linda Greenhouse, the longtime Supreme Court reporter for the New York Times, moderated the panel.
August 29, 2011
Supreme Court Clarifies "Clear and Convincing Evidence" Standard
The Supreme Court in Microsoft v. I4I Limited Partnership et al. clarified that “clear and convincing evidence” is the standard of proof that is required for a party to establish that a patent is invalid. This high standard of proof applies even if a patent was issued and the patent examiner in the Patent and Trademark Office had not had the opportunity to examine prior art that allegedly invalidates the patent.
— Jordan B. Cherrick, Senniger Powers LLP, St. Louis, MO
August 25, 2011
Third Circuit Denies Appeal of Mushroom Growers
The oft-litigated Capper-Volstead Act of 1922 permits certain agricultural producers to form cooperatives without incurring antitrust liability. A group of mushroom farmers formed a cooperative in 2000. They established minimum pricing policies and programs to improve their position in the market for raw, fresh mushrooms. The Justice Department investigated and concluded that the cooperative had been organized under the act. It entered into a consent judgment in 2005 with the cooperative that nullified deed restrictions on six parcels of land the cooperative had sold and that prohibited the cooperative from placing restrictions on parcels sold in the next 10 years.
— Robert A. Vort, Hackensack, NJ
August 12, 2011
Seventh Circuit Judge Terence Evans Passes Away
Seventh Circuit Judge Terence Evans died on August 10, 2011, of idiopathic pulmonary fibrosis and acute respiratory distress syndrome.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
August 3, 2011
Conclusion of Underlying Case Undermines Challenge of Motion Denial
Typically resolution of an underlying case renders any appeal moot. So too in this case, but not without a debate between the majority and dissent whether an exception applied here. In long-running litigation between the Natural Resources Defense Council and the federal government over fishing regulations, a seafood processing association sought to intervene when the litigation expanded to include new issues. The magistrate judge denied the motion as untimely and the association appealed. While the appeal was pending, however, the NRDC and the government concluded their case, the court entered a judgment, and neither side appealed.
— Richard A. Derevan, Snell & Wilmer L.L.P., Costa Mesa, CA
August 3, 2011
Court Considers New Facts after Forum Non Conveniens Motion
A fundamental principle of appellate review is that courts of appeal review orders or judgments based solely on the record before the district court at the time the order or judgment is entered. But not always. In this case, the district court granted a forum non conveniens motion, finding that Mexico provided a suitable alternative forum in which plaintiffs could bring their claims. The plaintiffs appealed, and while the appeal was pending they also brought suit in Mexico.
— Richard A. Derevan, Snell & Wilmer L.L.P., Costa Mesa, CA
August 3, 2011
Order Disbarring Attorney from District Court Practice Is Appealable
In this case, the Ninth Circuit distinguished orders of a district court refusing admission to an attorney to practice before a district court from orders effectively disbarring an admitted attorney from practice. The former orders are not appealable; the latter are. While these principles are not controversial, the majority and the dissent parted company over how to characterize the order in this case.
— Richard A. Derevan, Snell & Wilmer L.L.P., Costa Mesa, CA
August 3, 2011
Ninth Circuit Dismisses Appeal Claiming Double Jeopardy Violation
An order denying a motion to dismiss an indictment on double-jeopardy grounds is appealable under the collateral-order doctrine. Abney v. United States, 431 U.S. 651 (1977). But like most legal rules, it’s not that simple. To be appealable, the double-jeopardy argument must be “colorable,” i.e., have a reasonable basis for arguing that original jeopardy has terminated and the defendant is being tried again for the same crime. Following Abney, the Supreme Court later held that an order denying a motion for acquittal does not raise a colorable claim because original jeopardy remains attached when there is a mistrial following a hung jury.
— Richard A. Derevan, Snell & Wilmer L.L.P., Costa Mesa, CA
July 27, 2011
Fifth Circuit Holds Administrators Can't Determine Sham Divorces
The Fifth Circuit addressed whether the Employee Retirement Income and Security Act (ERISA) permits a retirement-plan administrator to seek restitution of benefits paid to a plan participant’s ex-spouse under a divorce decree if the administrator subsequently determines that the divorce was a sham. The court answered the question in the negative, affirming the district court’s determination that “the subsection of ERISA at issue here . . . does not authorize an administrator to consider or investigate the subjective intentions or good faith underlying a divorce.” 2011 WL 2780505 at *1.
— James Edwin Kirtley, Jr., Jorden Burt LLP, Miami, FL
July 26, 2011
Fourth Circuit Rules Emissions Charge Is a Fee, Not a Tax
In GenOn Mid-Atlantic, LLC v. Montgomery County, the Fourth Circuit Court of Appeals held that a carbon-dioxide-emissions charge levied on a single electricity-generating facility was a punitive regulatory fee, not a tax, thereby reversing and remanding the lower court’s dismissal of GenOn’s request for relief. As states and municipalities increasingly seek to regulate greenhouse-gas emissions, “emitting” businesses will most certainly welcome this decision to preserve their access to federal courts for relief.
— Meghan Skirving Thelen, Ellis & Winters LLP, Raleigh, NC
July 20, 2011
Suggestion Obama Should Be Shot Lacks Intent, Ninth Reverses
Finding that an individual's statements that President Obama should be shot did not meet the subjective intent-based true-threat test required to convict the individual under 18 U.S.C. 879(a)(3), which makes it a felony to threaten to kill or do bodily harm to a major presidential candidate, the Ninth Circuit reversed his conviction.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
July 8, 2011
Third Circuit Rules on Medicaid Liens
Two recipients of social security challenged the assertion of a lien by the Pennsylvania Department of Public Welfare. The recipients were Medicaid beneficiaries. Federal law prohibits states from imposing liens on the property of Medicaid beneficiaries. In Arkansas Department of Health and Human Services v. Ahlborn, 547 U.S. 268 (2006), at page 280 n.9 and at pages 291–92, the court assumed, without deciding, that liens against settlements and judgments—if limited to the portion of a settlement or judgment constituting reimbursement for medical costs—are an implied exception to the prohibition against states imposing liens on the property of Medicaid beneficiaries. In this case, the court of appeals had to decide if, in fact, such liens were an exception.
— Robert A. Vort, Hackensack, NJ
June 27, 2011
Oregon's First Female Supreme Court Justice Dies at 88
Betty Roberts, the first woman to sit on the Oregon Supreme Court, has died at age 88.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
June 23, 2011
Fifth Circuit Refuses to Reconsider Affirmative Action Decision
The Fifth Circuit Court of Appeals has denied rehearing en banc of a watershed ruling that approved the consideration of race in undergraduate admissions at the University of Texas. Earlier this year, the court held that the university’s admissions policy, under which race is one of many factors comprised in a holistic review, is narrowly tailored to further the university’s compelling interest in securing the educational benefits of a diverse student body.
— Katherine S. Roth, Liskow & Lewis, New Orleans, LA
June 21, 2011
Courtroom Sartorial Rights Not Protected by U.S. Constitution
The Second Circuit has held that an attorney does not have a right under the First or the Fourteenth Amendment to wear a baseball cap and casual attire when appearing in court. The district court dismissed the action (brought against a judge and a clerk in the New York City Housing Court), and the attorney appealed. With respect to the attorney’s First Amendment claim, the court held that the restriction was content-neutral and was appropriate in that its purpose was to maintain the proper decorum of judicial proceedings, an appropriate rationale for the restriction. As to his Fourteenth Amendment claim, the court found that the U.S. Supreme Court has not found a constitutionally protected liberty interest in one’s personal appearance. Assuming that there was such a right, the court held that such a right was not “fundamental” and the restriction was not subject to strict scrutiny. As there is a rational basis for the restriction, the court held that the claim was properly dismissed.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
June 21, 2011
Supreme Court Decides General Dynamics Corp. v. United States
In a unanimous opinion delivered by Justice Scalia, the Supreme Court held the state-secrets privilege rendered a government contractual dispute nonjusticiable, and that the proper remedy in such a case was to leave the parties where they stood when the action was filed.
— Lara O’Donnell Grillo, Jorden Burt LLP, Miami, FL
June 15, 2011
Parens Patriae Actions Not Class Actions Subject to Removal under CAFA
The Fourth Circuit Court of Appeals held that parens patriae actions, lawsuits brought by state attorneys general on behalf of state citizens, are not class actions subject to removal under the Class Action Fairness Act of 2005 (CAFA). In a 2–1 decision, the court affirmed a remand order in an action alleging that a group of pharmacies sold generic drugs to West Virginia consumers without passing along to the consumers the cost savings of generic drugs over brand-name equivalents.
— Meghan Skirving Thelen, Ellis & Winters LLP, Raleigh, NC
May 23, 2011
D.C. Circuit Upholds $400 Million Judgment Against Syria
The D.C. Circuit has upheld a default judgment of over $400 million against Syria, stemming from the beheading of two American military contractors in Iraq. The plaintiffs had alleged that Syria had provided material support to the actual murderers, facilitating the deaths of the contractors. Syria did not appear, and the clerk entered a procedural default against Syria. The district court held a three-day evidentiary hearing to determine whether the plaintiffs could establish their claims by evidence satisfactory to the court. After the evidentiary hearing was held, but before the district court issued its decision, Congress passed and the president signed the National Defense Authorization Act for Fiscal Year 2008, which created a federal rule of decision against foreign states and allowed punitive damages. The law allowed pending cases brought under the old law to be decided under the new law upon making a motion for such relief. The plaintiffs made such a motion. Syria did not respond to this motion. The district court granted the motion and held that new service was not required. A default judgment was entered based on the evidentiary hearing. Syria moved for relief from the judgment under Rule 60(b) of the Federal Rules of Civil Procedure. The district court denied the motion. Syria appealed, arguing, among other things, that the judgment was void because Syria had not been served. The D.C. Circuit held that service had been proper and that new service was not required once the action had been “transformed” from one under the old law to one under the new law.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
May 18, 2011
School May Prohibit Sexually Explicit Cartoon in Student Newspaper
The Second Circuit has held that a school may prohibit the publication of a student newspaper containing a sexually explicit cartoon.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
May 16, 2011
Florida Court Rules Car Stereo Law Unconstitutional
The Florida Second District Court of Appeal has held that a law restricting the volume at which a car stereo system may be played on a public street, but exempting vehicles used for business or political purposes, is unconstitutional because it is not content-neutral.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
May 12, 2011
Second Circuit Recognizes Rights of Pro Se Litigant
It would seem that a party’s right to proceed pro se had long been established, but in Leftridge v. Connecticut State Trooper Officer #1283, the district court administratively closed a pro se plaintiff’s section 1983 action and refused to reopen it because the plaintiff had not retained counsel. The Second Circuit vacated the order, denying the plaintiff’s motion to reopen the case and remanded the case to the district court, stating that the plaintiff “must be allowed, if he wishes, to pursue his action pro se. We of course express no view as to the merits of his claims.”
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
May 11, 2011
Second Circuit Upholds Enforcement of Indian Cigarette Tax Law
The Second Circuit has held that an injunction from enforcement of a law on Indian reservations taxing cigarette sales was not warranted because the plaintiff had not shown a likelihood of success on the merits. The Indian tribes had asserted that the tax violated their tribal sovereignty and their immunity from state taxation. The tax system provided that retailers pre-pay the tax to wholesalers and pass the costs onto purchasers. The court held that this was not a direct tax on tribal retailers. Because the consumer was ultimately paying the tax, the statutory scheme did not violate the rights of tribal retailers. The fact that the tribal retailers would bear an economic burden because of the tax was irrelevant. That burden was borne because the retailers chose to participate in the taxable cigarette market.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
May 4, 2011
Tenth Circuit Slams Plaintiff for Discovery Misconduct
The Tenth Circuit has slammed a plaintiff who continuously failed to comply with discovery orders, affirming the dismissal of the case.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
May 3, 2011
Second Circuit Holds 9/11 Conspiracy Case Is Frivolous
The Second Circuit held that it had power under Rule 38 of the Federal Rules of Appellate Procedure, 28 U.S.C. 1927, and its inherent power, to consider sanctions on parties who pursue patently frivolous appeals and force the court to consider (and the government to defend) vexatious litigation, provided adequate notice and an opportunity to be heard is afforded.
— Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY
April 28, 2011
Supreme Court Holds Section 2 of FAA Preempts Discover Bank Rule
The Supreme Court held that section 2 of the Federal Arbitration Act (FAA) preempts California's Discover Bank rule, which prohibits class-action waivers in arbitration clauses under specific circumstances. FAA section 2 makes arbitration agreements "valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." As summarized by the majority, California’s judicial rule, based on the California court's holding in Discover Bank v. Superior Court, 36 Cal. 4th 148 (2005), classifies "most collective-arbitration waivers in consumer contracts," such as the one at issue in this case, "as unconscionable."
— Lara O’Donnell Grillo, Jorden Burt LLP, Miami, FL
April 28, 2011
Fourth Circuit Decision May Affect Lanham Act Injunctions
The Fourth Circuit upheld a district court’s false-advertising decision in a case that may affect the availability of injunctions in Lanham Act litigations. The lawsuit involved claims by PBM Products, LLC that Mead Johnson distributed more than 1.5 million direct-to-consumer mailers falsely claiming that PBM’s generic, store-brand baby-formula products were inferior to Mead Johnson’s Enfamil baby-formula products. A jury found that Mead Johnson had engaged in false advertising and the U.S. District Court for the Eastern District of Virginia issued an injunction prohibiting Mead Johnson from making similar claims.
— Meghan Skirving Thelen, Ellis & Winters LLP, Raleigh, NC
April 12, 2011
Ninth Circuit Affirms Injunction Against Arizona Immigration Law
In United States v. State of Arizona, the Ninth Circuit has affirmed the grant of a preliminary injunction, enjoining the State of Arizona from enforcing its new immigration law enforcement policy. Judge Paez wrote the opinion. Judge Noonan wrote a concurring decision, and Judge Bea wrote a decision, concurring in part and dissenting in part.
— Sanford Hausler, New York, NY
April 7, 2011
Admission Not Binding Where Allegation Was Matter of Law, Not Fact
Harrington v. City of Nashua involved Fourth Amendment and malicious-prosecution claims arising out of the Nashua Police Department’s arrest of woman for allegedly making false claims of sexual assault—a misdemeanor—for which she was acquitted after trial. At issue on appeal was the City of Nashua’s admission, in its answer, to the plaintiff’s allegation that a police officer "instituted legal process in the form of a criminal complaint charging the plaintiff with making a False Report to Law Enforcement . . . based upon which legal process the plaintiff was arrested." Under New Hampshire law, however, police are not empowered to make arrests on misdemeanor charges "based on" the mere existence of a criminal complaint, but instead require the presence of additional factors permitting a warrantless arrest. The source of the police’s authority to arrest the plaintiff directly affected the legal standard to be used to decide her legal claims, and thus the effect of the admission was placed at issue.
— Thomas J. Davis, Jones Day, Washington, D.C.
April 5, 2011
Senate Confirms Reyna to Federal Circuit
The Senate has confirmed the nomination of Jimmie V. Reyna to the Federal Circuit by a vote of 86–0.
— Sanford Hausler, New York, NY
March 16, 2011
Foreign Countries Not Beyond Contempt Sanctions
The D.C. Circuit has held that the Foreign Sovereign Immunities Act does not prohibit federal trial judges from imposing monetary contempt sanctions against foreign countries.
— Sanford Hausler, New York, NY
March 15, 2011
Overstatement of Basis Not Omission of Gross Income
The Fifth Circuit held that a taxpayer’s overstatement of basis that apprised the commissioner of internal revenue of the nature of the item being reported did not constitute an omission from gross income under the Internal Revenue Code, 26 U.S.C. § 6501(e)(1)(A).
— Lara O’Donnell Grillo, Jorden Burt LLP, Miami, FL
March 10, 2011
Posner Pans Unbrief Brief
Appellate counsel, beware—especially if you practice in the Seventh Circuit. Judge Posner wrote a decision striking an appellant’s brief that exceeded the page limit, and affirmed the case.
— Sanford Hausler, New York, NY
March 2, 2011
Supreme Court Rules First Amendment Shields Protesters
On March 2, 2011, the U.S. Supreme Court in Snyder v. Phelps held that the First Amendment shields a protester from tort liability. In this case, the protesters at issue picketed the funeral of a soldier who had been killed Iraq, saying that the death was punishment for this country’s tolerance of homosexuality. Justice Alito dissented.
— Sanford Hausler, New York, NY
February 28, 2011
Arbitration Award Not Reviewable in the First Instance
A court of appeals will not review an arbitration award in the first instance, even where the parties may have stipulated to bypass the district court. In this case, the parties stipulated to “a binding arbitration with appeal rights.”
— Richard A. Derevan, Snell & Wilmer L.L.P., Costa Mesa, CA
February 28, 2011
Immunity Doctrine Not Applicable in General Contractor Defense
In this case, the defendant claimed that the district court erroneously denied its general-contractor defense, which shields a defendant from claims by plaintiffs that they sustained injuries as a result of defective products or equipment manufactured or supplied under a government contract.
— Richard A. Derevan, Snell & Wilmer L.L.P., Costa Mesa, CA
February 28, 2011
With Remand Order Appealable, Notice 180 Days Later Was Untimely
In this removed action, the district court sanctioned the plaintiffs and their lawyer by holding them in contempt. They appealed, but the Ninth Circuit dismissed the appeal, holding the contempt order was civil in nature—not criminal—and therefore was not an appealable order. Later, the district court dismissed the federal claims and remanded the balance of the action to state court, but it did not “enter” an order by complying with the separate document rule outlined in Rules 58 and 79 of the Federal Rules of Civil Procedure.
— Richard A. Derevan, Snell & Wilmer L.L.P., Costa Mesa, CA
February 28, 2011
Collateral Order Doctrine Not Applicable in Anti-SLAPP Motion
California has a state statute permitting defendants to seek early dismissal of cases that are strategic lawsuits against public participation in various activities, so-called SLAPP suits. In 2003, the Ninth Circuit held that orders denying anti-SLAPP motions to strike such lawsuits were appealable as collateral orders. In Greensprings, the court refused to apply this ruling to orders granting such motions, but gave the plaintiffs leave to file an amended complaint.
— Richard A. Derevan, Snell & Wilmer L.L.P., Costa Mesa, CA
February 25, 2011
New York Court Holds Same-Sex Survivor Entitled to Inherit
The Appellate Division, First Department of the New York Supreme Court held that the survivor of a same-sex couple married in Canada was entitled to inherit as a spouse.
— Sanford Hausler, New York, NY
February 15, 2011
Senate Confirms Graves for Fifth Circuit
The U.S. Senate voted to confirm Mississippi Supreme Court Presiding Justice James Graves to the United States Court of Appeals for the Fifth Circuit.
— Sanford Hausler, New York, NY
January 28, 2011
Emanuel Back on Ballot
Rahm Emanuel is back on the ballot for the Chicago mayoral election in February, pursuant to a decision of the Illinois Supreme Court.
— Sanford Hausler, New York, NY
January 27, 2011
Floyd Nominated to Fourth Circuit
President Obama has nominated U.S. District Judge Henry F. Floyd to serve on the Court of Appeals for the Fourth Circuit.
— Sanford Hausler, New York, NY
January 26, 2011
Emanuel Tossed from Chicago Mayoral Ballot
The Illinos Appellate Court, First Division, has held that Rahm Emanuel may not be included on the ballot for Chicago mayor. Justice Lampkin dissented from the decision.
— Sanford Hausler, New York, NY
January 19, 2011
Lawyer-to-Lawyer Communications May Be Actionable under FDCPA
The Third Circuit has ruled that lawyer-to-lawyer communications may be actionable under the Fair Debt Collection Practices Act if the information conveyed is false.
— Sanford Hausler, New York, NY
January 7, 2011
Third Circuit Holds In Vitro Children Cannot Be Denied Benefits
The Third Circuit has held that children born as a result of in vitro fertilization long after their father has died cannot be denied Social Security survivor benefits.
— Sanford Hausler, New York, NY
January 4, 2011
Senate Confirms Marguia to Ninth Circuit
The Senate has confirmed President Obama’s nomination of Mary H. Marguia to the Ninth Circuit.
— Sanford Hausler, New York, NY
December 13, 2010
Ninth Circuit Reverses Conviction of Network Associates CFO
The Ninth Circuit reversed the conviction of the chief financial officer of Network Associates, Inc., finding that the government had overreached in its prosecution of the case.
— Sanford Hausler, New York, NY
December 8, 2010
Second Circuit Holds Reach of RICO Not Extraterritorial
The Second Circuit has held that the RICO statute does not have extraterritorial reach.
— Sanford Hausler, New York, NY
November 15, 2010
New York Court Deems Internet Sales Tax Constitutional
The New York Appellate Division, First Department has held that a statute allowing the imposition of a tax on Internet sales to New York residents in constitutional.
— Sanford Hausler, New York, NY
November 10, 2010
Second Circuit Holds Pro Se Attorneys May Not Recover Fees
The Second Circuit has held that an attorney appearing pro se in a bankruptcy proceeding may not recover attorney fees under Bankruptcy Code § 7430 when the attorney successfully defeats a claim asserted against himself or herself in the bankruptcy court.
— Sanford Hausler, New York, NY
November 9, 2010
Supreme Court Hears Oral Argument on AT&T Mobility LLC v. Concepcion Class-Actions Case
The Supreme Court has heard oral argument on AT&T Mobility LLC v. Concepcion. The case involves the issue of whether a company can require that all disputes with its customers be arbitrated while at the same time preventing the customers from bringing an arbitration in the form of a class action.
— Sanford Hausler, New York, NY
November 5, 2010
D.C. Circuit Orders Release of Guantanamo Detainee
The Ninth Circuit has held that a Catholic group had standing to sue the City of San Francisco for adopting a resolution condemning the Catholic Church’s ban on gay adoptions, but affirmed the district court’s decision, dismissing the action on the merits.
— Sanford Hausler, New York, NY
October 26, 2010
Ninth Circuit Holds Catholic Group Has Standing to Sue San Francisco
The Ninth Circuit has held that a Catholic group had standing to sue the City of San Francisco for adopting a resolution condemning the Catholic Church’s ban on gay adoptions, but affirmed the district court’s decision, dismissing the action on the merits.
— Sanford Hausler, New York, NY
Septeber 22, 2010
Supreme Court Held Sand Replenishment Projects Beaches are Public property
The Supreme Court has held that beaches created through sand replenishment projects are public property and do not become part of adjacent private lands, rejecting a merchant’s claim for payment under eminent domain.
— Sanford Hausler, New York, NY
Septeber 22, 2010
Florida’s Third District Court of Appeal Law Barring Adoption by Gay Men or Lesbians Unconstitutional
Florida’s Third District Court of Appeal has held that the Florida law barring the adoption of children by gay men or lesbians is unconstitutional.
— Sanford Hausler, New York, NY
September 2, 2010
The California Court of Appeal, First Department, Held a Contingency Fee Based on the Plaintiff’s Anticipated Damages
The California Court of Appeal, First Department, has upheld a contingency fee based on the plaintiff’s anticipated damages, not the actual sum recovered, allowing the attorneys to recover a fee greater than the recovery.
— Sanford Hausler, New York, NY
August 31, 2010
The 11th Circuit has Upheld a District Court Ruling
The 11th Circuit has upheld a district court ruling that the use of pepper spray and other chemical agents by guards against mentally ill prison inmates is unconstitutional.
— Sanford Hausler, New York, NY
August 30, 2010
U.S. Court Rejects Connection Between Vaccines and Autism
The U.S. Court of Appeals for the Federal Circuit upheld lower court findings that reject a causal connection between childhood vaccines and the onset of autism.
— Sanford Hausler, New York, NY
August 15, 2010
First Circuit: Reviews Removal of Genocide Materials from Curriculum
The First Circuit has held that a Massachusetts education agency's decision to remove materials disputing the existence of an Armenian genocide from a curriculum guide did not violate the First Amendment.
— Sanford Hausler, New York, NY
August 1, 2010
Judge Wynn Affirmed for Fourth Circuit
Judge James Wynn Jr., a North Carolina appellate judge, has been confirmed by the Senate to take a seat on the United States Court of Appeals for the Fourth Circuit.
— Sanford Hausler, New York, NY
August 1, 2010
Internet Service Not Responsible for Naming Sender of Offensive Emails
The Appellate Division of the Superior Court of New Jersey held that a recipient of anonymous, offensive emails cannot compel the sender’s internet service provider to reveal his or her identity.
» Read More | 
— Sanford Hausler, New York, NY
August 1, 2010
California High Court Rejects San Francisco Public Contracting Practices
The California Supreme Court has rejected much of San Francisco's legal justification for the continuing use of minority preferences in public contracting.
» Read More |
— Sanford Hausler, New York, NY
July 25, 2010
Possession of Guns with Destroyed Serial Numbers Not Protected by Second Amendment
The Third Circuit has held that a federal law that prevents the possession of a gun with an obliterated serial number does not violate an individual’s Second Amendment rights.
» Read More |
— Sanford Hausler, New York, NY
July 25, 2010
California Public Entities May Employ Private Attorneys to Litigate Lead Paint Cases
The California Supreme Court has stated that public entities may employ private attorneys on a contingent-fee basis to litigate cases involving public nuisance actions against manufacturers of lead paint.
» Read More |
— Sanford Hausler, New York, NY
July 18, 2010
Obama Selects Law Professor for 7th Cir.
President Obama has nominated University of Wisconsin law professor Victoria Nourse for a seat on the Court of Appeals for the Seventh Circuit.
» Read More |
— Sanford Hausler, New York, NY
July 18, 2010
No Luck for Snipes on Appeal
The Eleventh Circuit has upheld Wesley Snipes’s three-year sentence for tax evasion.
» Read More |
— Sanford Hausler, New York, NY
July 11, 2010
Passengers Who Fall While Exiting Planes Can Sue Under State Tort Law
The Third Circuit has held that state tort law is not preempted by the Federal Aviation Act after an airplane has come to a complete stop. Hence, a passenger who falls while disembarking from an airplane can sue under state tort law.
— Sanford Hausler, New York, NY
June 20, 2010
The Fifth Circuit has held that bankruptcy courts can certify class actions.
» Read More |
— Sanford Hausler, New York, NY
May 23, 2010
President Obama has nominated Yale University deputy general counsel Susan Carney for a seat on the Second Circuit.
— Sanford Hausler, New York, NY
May 16, 2010
The Florida Supreme Court has held that banks do not practice law without a license when they write and charge for the preparation of mortgage documents.
— Sanford Hausler, New York, NY
April 25, 2010
The Second Circuit has held that the Class Action Fairness Act of 2005 bars appellate review of orders remanding securities class actions to state court.
— Sanford Hausler, New York, NY
April 25, 2010
The New Jersey Superior Court, Appellate Division has held that while the New Jersey press shield law does apply to online reporters, it does not apply to bloggers claiming to be journalists.
— Sanford Hausler, New York, NY
April 11, 2010
Edwar DuMont, an appellate litigation partner at Wilmer Cutler Pickering Hale and Dorr has been nominated by President Obama to fill a seat on the Court of Appeals for the Federal Circuit.
— Sanford Hausler, New York, NY
March 21, 2010
The Eleventh Circuit affirmed the sanctions imposed against an individual who commenced frivolous lawsuits throughout the country, challenging the legitimacy of Barack Obama’s election based on the untrue assertion that President Obama was born in Kenya.
— Sanford Hausler, New York, NY
March 14, 2010
President Obama has nominated Assistant U.S. Attorney Raymond Lohier Jr. for a seat on the Court of Appeals for the Second Circuit. Mr. Lohier is the chief of the Securities and Commodities Fraud Task Force of the U.S. Attorney’s Office for the Southern District of New York.
— Sanford Hausler, New York, NY
March 14, 2010
President Obama has nominated District Judge Kate O’Malley for a seat on the Court of Appeals for the Federal Circuit. Judge O’Malley currently serves as a judge on the District Court for the Northern District of Ohio.
— Sanford Hausler, New York, NY
March 14, 2010
The Minnesota Court of Appeals has held that a husband violates his wife’s right of privacy under Minnesota statute when he surreptitiously videotapes her while she is in the bathroom.
— Sanford Hausler, New York, NY
March 14, 2010
The U.S. Supreme Court, in Milavetz, Gallop & Milavetz v. United States, has held that bankruptcy attorneys are covered by a law preventing “debt relief agencies” from advising clients to incur more debt in contemplation of filing for bankruptcy. The Court also held that the law does not violate the First Amendment.
— Sanford Hausler, New York, NY
March 7, 2010
The Third Circuit has held that the charges by H&R Block and other tax preparers for electronically filing tax returns are not illegal and the IRS’s agreement with the preparers did not violate the antitrust laws.
— Sanford Hausler, New York, NY
March 7, 2010
U.S. Supreme Court Amends Rules
Amendments to the U.S. Supreme Court’s rules went into effect on February 16, 2010. In the most significant amendment of this round, Rule 33.1(g)(vii) reduced the length limit for reply briefs on the merits, from 7,500 to 6,000 words. This amendment, in effect, repealed the increase of the word limit that became effective October 1, 2007. The amendment was accompanied by a scolding to counsel in the clerk’s comment: “Experience has shown that the increased volume limit has allowed for the filing of some briefs that repeat previous arguments rather than address only new material presented in intervening briefs.”
In another important change, Rule 42.1 now provides that, if the Court directs entry of a money judgment on remand, “the courts below may award interest to the extent permitted by law.” The rule previously said that the Supreme Court’s “mandate will contain instructions with respect to the allowance of interest.” According to the clerk’s comment, this amendment “recognizes that questions of allowance of interest are best left to the lower courts in the first instance.”
A new Rule 25.4 permits the clerk, upon the parties’ request, to establish a briefing schedule and adjust the word limits of merits briefs in consolidated cross-petitions and cross-appeals. The new rule permits, but does not require, a four-brief schedule modeled on Fed. R. App. P. 28.1(c). The cumulative word limit of all the briefs may not exceed the normal 36,000 word cumulative limit under Rule 33.1(g) unless authorized by the Court or a justice.
The amendments include several other technical changes.
The recent amendments did not incorporate, or change, the clerk’s separate Electronic Merits Briefs Submission Guidelines (effective August 15, 2008). Those of us who are hoping for true electronic filing in the Supreme Court will have to keep hoping.
Resources on the Web:
- Rules of the Supreme Court (effective February 16, 2010).
- Revisions to Rules (marked to show changes, with clerk’s comments).
— Steven Finell, Santa Rosa, CA
February 28, 2010
The Federal Circuit has held that the creator of the Korean War Memorial in Washington, D.C. was entitled to copyright protection for his work and that a U.S. stamp, which featured a picture of the memorial, violated his copyright.
— Sanford Hausler, New York, NY
February 28, 2010
The Federal Circuit held that a patent for a “memorabilia card” is invalid due to obviousness.
— Sanford Hausler, New York, NY
February 28, 2010
President Obama has nominated District Judge Robert N. Chatigny of the District of Connecticut for a seat on the Second Circuit.
— Sanford Hausler, New York, NY
February 28, 2010
President Obama has nominated Professor Goodwin Liu of the University of California, Berkley School of Law for a seat on the Ninth Circuit.
— Sanford Hausler, New York, NY
February 7, 2010
The Second Circuit has held that provisions of the New York City zoning resolution restricting billboard advertising do not impose unconstitutionalrestrictions on plaintiffs’ commercial-speech rights in violation of the First Amendment or the New York State Constitution.
— Sanford Hausler, New York, NY
February 7, 2010
The New Jersey Supreme Court has held that a school can conduct a search of a student’s car if there are reasonable grounds for such a search.
— Sanford Hausler, New York, NY
February 7, 2010
The New York Court of Appeals is posting videos of oral arguments heard before it since the beginning of this year.
— Sanford Hausler, New York, NY
February 7, 2010
Pursuant to Revised Supreme Court Rule 33.1, the maximum length of a reply brief at the merits stage will decrease from 7,500 to 6,000 words. This new rule will go into effect on February 16, 2010.
— Sanford Hausler, New York, NY
Circuit Conflicts in Antitrust Litigation
This practical guide surveys current conflicts among the Circuit Courts of Appeal in antitrust litigation.
A Century of Legal Ethics: Trial Lawyers and the ABA Canons of Professional Ethics
The ABA Canons of Ethics was adopted in 1908 and created ethical standards for lawyers.
First Circuit: Thomas J. Davis
Second Circuit: Sanford Hausler
Third Circuit: Robert A. Vort
Fourth Circuit: Meghan Skirving Thelen
Fifth Circuit: Emma J. Hinnigan
Sixth Circuit: Brittany Parling
Seventh Circuit: Meaghan Gragg
Eighth Circuit: Matthew D. Simone
Ninth Circuit: Richard A. Derevan
Tenth Circuit: Vacant
Eleventh Circuit: James F. Bogan
DC Circuit: Jason P. Kairalla
Federal Circuit: Vacant
Supreme Court: Lara O'Donnell and Jordan B. Cherrick
