Jump to Navigation | Jump to Content
American Bar Association

Appellate Practice

Practice Points


August 5, 2016

Beware Oversized Briefs


If you practice in the Ninth Circuit and you want to file an oversized brief, you’d better hope Judge Alex Kozinski is not on your panel (or you have a really good reason for the length of the brief). In Cuevas v. Hartley, Judge Kozinski dissented, in the strongest terms, from an order granting the government’s motion to file an oversized brief. Judge Kozinski pointed out that in realistically, denying a motion to file an oversized brief would throw the schedule out of kilter, so panels often grant the motion so as to keep the appeal on track, rather than because the length of the brief is necessary. He further stated that he would not read beyond page 66 of the brief and that if there were arguments that the government wanted him to consider contained in the brief after that page, it would have to send him a brief compliant with the rules.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

April 4, 2016

First U.S. Secretary of Education Dies at 90


Shirley Hufstedler, a former federal appellate court judge who served as the nation's first education secretary, has died at the age of 90.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

February 12, 2016

Kallon Nominated to Eleventh Circuit


President Obama has nominated District Judge Abdul Kallon to a seat on the Eleventh Circuit.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

January 12, 2016

SCOTUS Rules on PLRA Fees


The U.S. Supreme Court issued an unanimous order in Bruce v. Samuels. The case involved the interpretation of the Prison Litigation Reform Act of 1995 (PLRA), which required that prisoner litigants who qualify to file in forma pauperis must pay 20 percent of the filing fee and pay the remainder of the fee in installments. The petitioner, who had multiple ongoing litigations, took the position that the payments were not required to be made until he had completed making the installment payments for cases that he had filed previously. Justice Ginsburg, writing for the Court, held that the payments had to be made simultaneously, not sequentially.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

January 12, 2016

SCOTUS Holds Only Jury Can Determine Death Penalty Factors


The U.S. Supreme Court decided in Hurst v. Florida that only a jury and not a judge could determine the factors necessary to impose the death penalty. The jury in Hurst had recommended that the death penalty be imposed on the defendant, but failed to set out any aggravating factors that are a requirement for the death penalty. The court imposed the death penalty, deciding, based on its own review of the facts, that certain aggravating factors existed. Justice Sotomayor wrote the decision for the Court. Justice Alito was the sole dissenter.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

June 8, 2015

Ninth Circuit Rules in Flam v. Flam


The Ninth Circuit has held that a remand order made under 28 U.S.C. 1447(c) is not within the power of a magistrate judge to issue under 28 U.S.C. 636. A motion to remand is a dispositive motion because such orders put litigants out of federal court. A magistrate judge when presented with such an order should issue a report and recommendation to the district court.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

May 4, 2015

SCOTUS Unanimously Decides Bullard v. Blue Hills Bank


On May 4, 2015, the U.S. Supreme Court in Bullard v. Blue Hills Bank, decided, in a decision by Chief Justice Roberts for a unanimous court, that a decision by a bankruptcy court rejecting a proposed Article 13 plan under the Bankruptcy Code is not a final order for appellate purposes. Accordingly, the debtor in possession has no right to immediately appeal from the Court’s decision.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

April 27, 2015

SCOTUS Hears Oral Argument in Excessive-Force Case


On April 27, 2015, the U.S. Supreme Court heard oral argument in Kingsley v. Henrickson.  That case involved the question of whether the requirements of a 42 U.S.C. § 1983 excessive-force claim brought by a plaintiff who was a pretrial detainee at the time of the incident are satisfied by a showing that the state actor deliberately used force against the pretrial detainee and the use of force was objectively unreasonable.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

April 24, 2015

SCOTUS Issues Decision in United States v. Wong


On April 22, 2015, the U.S. Supreme Court issued a decision in United States v. Wong. That case held that the time deadlines in the Federal Tort Claims Act can be equitably tolled. Justice Kagen wrote the decision of the Court. Justice Alito wrote a dissenting opinion, joined by Chief Justice Roberts and Justice Scalia and Thomas.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

March 24, 2015

SCOTUS Issues Decision in B&B Hardware, Inc. v. Hargis Industries Inc.


On March 24, 2015, Justice Alito issued the decision of the Court in B&B Hardware, Inc. v. Hargis Industries Inc., deciding that as long as the other ordinary elements of issue preclusion are met, when the usages adjudicated by the Trademark Trial and Appeal Board are materially the same as those before a district court, issue preclusion should apply. Justice Ginsburg issued a concurring opinion. Justice Thomas issued a dissenting opinion in which Justice Scalia jointed.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

March 24, 2015

SCOTUS Issuses Decision in Omnicare


On March 24, 2015, the Supreme Court issued a decision in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund, holding that a statement of opinion in a registration statement filed under the Securities Act of 1933, does not constitute an untrue statement of fact simply because it turns out to be untrue. Accordingly, such a statement does not subject the filing company to liability under the act. Justice Kagan delivered the opinion of the Court. Justice Scalia issued a decision concurring in part and concurring with the judgment. Justice Thomas concurred with the judgment.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

October 7, 2014

Single Dismissed Claim in MDL Immediately Appealable


On January 21, 2015, the U.S. Supreme Court issued its decision in Gelboim v. Bank of America Corp. That case raised the issue of whether litigants, whose single claim had been dismissed, could immediately appeal, pursuant to 28 U.S.C. § 1291, when the action is consolidated for pretrial proceedings in multi-district litigation. The Court unanimously held that the dismissal removed the litigants from the consolidating proceeding, triggering their right to appeal.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

October 7, 2014

Oral Argument Heard in Dart Cherokee Basin v. Owens


On October 7, 2014, the U.S. Supreme Court heard oral argument in Dart Cherokee Basin v. Owens. That case raises the issue of whether a defendant seeking removal to federal court is required to include evidence supporting federal jurisdiction in the notice of removal, or whether alleging the required "short and plain statement of the grounds for removal" is sufficient.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

October 7, 2014

Oral Argument Heard in Holt v. Hobbs


On October 7, 2014, the U.S. Supreme Court heard oral argument in Holt v. Hobbs. That case raises the issue of whether a prisoner be prevented from growing a beard for religious reasons.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

October 7, 2014

Oral Argument Heard in Heien v. North Carolina


On October 6, 2014, the U.S. Supreme Court heard oral argument in Heien v. North Carolina. That case raises the issue of whether a police officer's mistake of law can provide the individualized suspicion that the Fourth Amendment requires to justify a traffic stop.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

August 4, 2014

Editor Wins Victory Over Conan Doyle Estate


The estate of Sir Arthur Conan Doyle was ordered to pay Leslie S. Klinger $30,679.93. Klinger had edited an anthology of Sherlock Holmes stories, and the estate had sought a licensing fee. Because most (but not all) of the Sherlock Holmes stories are in the public domain, Klinger declined to pay the fee and commenced an action for a declaratory judgment that the estate has no right to impose a license on the use of Sherlock Holmes. The estate argued that the character of Sherlock Holmes evolved throughout the years that Doyle created his adventures, and accordingly the copyright in the character continued to exist even though the earlier works were in the public domain. The Seventh Circuit rejected that view, and, in a decision issued on August 4, 2014, awarded Klinger his attorney fees. The court noted that Klinger was acting as a private attorney general and had performed a public service, which had he lost, would have cost him dearly. The court also noted that the estate, which had threatened to get Amazon and other booksellers to refuse to carry Klinger’s book if he did not pay the license fee violated the antitrust laws.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

July 30, 2014

Third Circuit Addresses "Practical Finality"


This appeal discusses the doctrine of “practical finality” in a suit filed against a Turkish arms manufacturer. The district court entered judgment against the manufacturer, which was wholly owned by the Republic of Turkey. The manufacturer, MKEK, was represented by Morgan Lewis & Bockius. After the Third Circuit affirmed the judgment of the district court in 1985, Morgan Lewis moved to withdraw as counsel to MKEK. The district court allowed individual attorneys to withdraw but required the firm to remain as counsel of record until MKEK retained substitute counsel.


Morgan Lewis appealed, and the Third Circuit affirmed in 1986. Morgan Lewis had moved to withdraw only a few months after the plaintiffs had initiated efforts to satisfy their judgment. The court of appeals considered Morgan Lewis “an important conduit for communication” between the plaintiff and MKEK, “which had already earned its reputation as an ‘intract[a]ble litigant.’” The court believed that, without Morgan Lewis, the substantial communication gap between judgment creditor and judgment debtor would hamper post-judgment proceedings.


Read the full case note.


Robert A. Vort, Hackensack, NJ


 

June 30, 2014

Order Remanding Claim by Intervenor on Procedural Ground Not Reviewable


The Eighth Circuit dismissed for lack of jurisdiction an appeal of a remand order. It concluded that because the district court had remanded on the procedural ground that the removal was untimely and because the district court had avoided the question of whether 28 U.S.C. § 1441(a) allows only removal of an entire case.


Arnold Crossroads, LLC, a commercial-real-estate business, entered into a redevelopment agreement with the City of Arnold. Arnold Crossroads then negotiated a lease with Gander Mountain Co. to operate a store within the redevelopment area. After Gander attempted to terminate the lease, Arnold Crossroads filed suit in Missouri state court for breach of the lease and sought $40,000 in damages. Gander removed the case to federal court based on diversity jurisdiction. The district court, however, remanded because the amount-in-controversy requirement was not satisfied.


Read the full case note.


John L. Bunyan and Tyler J. Wetzel, Carlock, Copeland & Stair, LLP, Atlanta, GA


 

June 27, 2014

New York Soda Ban Struck Down


The New York State Court of Appeals has rejected New York City's ban on the sale of large-size sugary drinks. The court held that the New York City Department of Health overstepped its authority in enacting such a ban, and that such power belonged to the city council.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

May 28, 2014

Second Circuit Rejects Challenge to "In God We Trust" on Currency


The Second Circuit has rejected a challenge to the placement of "In God We Trust" on U.S. currency brought by individuals who are atheists or secular humanists. The court held that the phrase does not violate the Establishment and Free Exercise Clauses of the First Amendment and the Religious Freedom Restoration Act of 1993, placing the Second Circuit in accord with the four other circuits that have addressed this issue.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

May 23, 2014

District Court May Award Fees in "Exceptional Circumstances"


The Supreme Court changed the landscape of patent litigation by enforcing the patent statute’s attorney-fees provision, 35 U.S.C. § 285, in a unanimous opinion authored by Justice Sotomayor. The consequence of the decision will be to deter plaintiffs from filing infringement lawsuits to extract settlements from ultimately meritless claims for which the lawyers risk payment of substantial attorney fees.


Section 285 authorizes district courts to award attorney fees in “exceptional” cases. The Federal Circuit had previously construed this provision so narrowly that it was nearly impossible to satisfy. In Octane, the Court interpreted the statute for the first time, reversed the Federal Circuit standard and remanded the case for application of the new standard.


Read the full case note.


Jordan B. Cherrick, Law Office of Jordan B. Cherrick LLC, St. Louis, MO


 

May 20, 2014

No Admiralty Jurisdiction for Altercation on Permanent Dock


The Second Circuit has held that admiralty jurisdiction does not extend to tort claims arising from a physical altercation among recreational visitors on and around a permanent dock surrounded by navigable water, because such an altercation does not have a potentially disruptive effect on maritime commerce.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

May 12, 2014

Third Circuit Rules on District Court Abstention


This opinion analyzes at length the discretion of a district court in deciding whether to entertain an action seeking a declaratory judgment. The plaintiff had recovered a judgment against her attorney and then sued his malpractice-insurance company in state court for a declaratory judgment that it was obligated to satisfy her judgment. The insurance company invoked diversity jurisdiction and removed the action to federal court.


The action was submitted to a magistrate judge who recommended that the insurance company’s motion to dismiss be granted. The district court, however, rejected the report and recommendation, held that the court should not have exercised jurisdiction in the first place, and remanded the action to state court.


Read the full case note.


Robert A. Vort, Hackensack, NJ


 

May 9, 2014

Pamela Harris Nominated for Fourth Circuit


On May 8, 2014, President Obama nominated Pamela Harris for a seat on the Court of Appeals for the Fourth Circuit. Pamela Harris is currently a visiting professor at the Georgetown University Law Center and a senior advisor to its Supreme Court Institute. She previously served as the principal deputy assistant attorney general of the Office of Legal Policy at the U.S. Department of Justice. Harris joined O’Melveny & Myers LLP as counsel in 1999, where she specialized in appellate and Supreme Court litigation. She became a partner in 2005. Beginning in 2007, while still in private practice, Harris co-directed Harvard Law School’s Supreme Court and Appellate Practice Clinic and was a visiting professor at Georgetown University Law Center. In 2009, Harris was named the executive director of the Supreme Court Institute at Georgetown, serving as executive director until 2010, when she joined the Office of Legal Policy. Harris returned to Georgetown in 2012.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

May 8, 2014

States Can Refuse to Certify Ineligible Presidential Candidates


The Ninth Circuit has held that a state can refuse to certify a person as a candidate for president of the United States when that person is ineligible (by reason of age or otherwise) to hold that position.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

May 1, 2014

Interlocutory Order Denying Intervenors' Motion for Protective Order Is Appealable


The Eleventh Circuit concluded that it had jurisdiction over an interlocutory appeal by intervenors seeking to prevent the disclosure of their plea negotiations in a proceeding ancillary to a criminal investigation. The court extended the doctrine in Perlman v. United States, 247 U.S. 7, 38 S. Ct. 417 (1918), beyond the context of a motion to quash a grand-jury subpoena for the first time and concluded that Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 130 S. Ct. 599 (2009), did not foreclose the appeal.


Read the full case note.


John L. Bunyan and Tyler J. Wetzel, Carlock, Copeland & Stair, LLP, Atlanta, GA


 

April 8, 2014

Appeal from Attorney Fee Award Dismissed as Untimely


This case illustrates a procedural trap for the unwary in appealing a ruling on a post-trial motion for attorney fees. Following entry of judgment, the plaintiff moved for attorney fees. The district court issued an order granting the request, but in a much lower amount. The plaintiff did not appeal from this order, but instead submitted a proposed form of judgment that the district court ultimately signed. The plaintiff then appealed from the judgment.


Read the full case note.


Richard A. Derevan, Snell & Wilmer L.L.P., Costa Mesa, CA


 

March 24, 2014

SCOTUS Imposes Limits on Jurisdiction of Claims Based in Foreign Countries


The plaintiffs are residents of Argentina who sued DaimlerChrysler Aktiengesellschaft in federal court in California. Daimler was later acquired by Daimler AG, which became the petitioner in the Supreme Court.


The plaintiffs alleged that an Argentinian subsidiary of Daimler, Mercedes-Benz Argentina assisted state security forces during the “Dirty War” between 1976 and 1983 and had liability for torts and crimes against individuals who worked for MB Argentina. The plaintiffs filed a lawsuit against Daimler in federal court in California in which it asserted claims under federal, California, and Argentina law. The alleged basis for personal jurisdiction was that Mercedes-Benz’s subsidiary in the United States, which had its principal place of business in New Jersey and was incorporated in Delaware, had sufficient contacts with California because it sold vehicles in the state.


Read the full case note.


Jordan B. Cherrick, Law Office of Jordan B. Cherrick LLC, St. Louis, MO


 

March 19, 2014

Denial of Motion to Quash Third-Party Subpoena Immediately Reviewable


The Tenth Circuit in Bonnet v. Harvest (U.S.) Holdings, Inc., held that the denial of a motion to quash a non-party subpoena duces tecum (SDT) was an immediately appealable order. The court also held that the SDT itself was a “suit” against the tribe, which triggered sovereign immunity.


The plaintiff was a petroleum landman who was an independent contractor and consultant for the Energy and Minerals Department of the Ute Indian Tribe of the Uintah and Ouray Reservation. The tribe terminated the contract, and the plaintiff sued various entities but not the tribe itself. The plaintiff did, however, serve the tribe with a non-party SDT requesting documents relevant to the suit. Asserting tribal sovereign immunity, the tribe moved to timely quash the SDT. The district court denied the motion to quash and the tribe filed an interlocutory appeal.


Read the full case note.


Nathan P. Murphy, Wheeler Trigg O'Donnell LLP, Denver, CO


 

March 19, 2014

Third Circuit Rules in TSA Qualified-Immunity Case


On December 24, 2013, the U.S. Court of Appeals for the Third Circuit issued George v. Rehiel, 738 F.3d 562 (3d Cir. 2013). The decision implicates important issues of appealability, in the context of the defendants’ invocation of a qualified-immunity defense, and the collateral-order doctrine.


In George, the plaintiff, who intended to fly from Philadelphia to California, was detained by Transportation Security Administration (TSA) officials after a screening disclosed in George’s possession 80 hand-written Arabic-English flashcards, which included everyday words and phrases and also words such as “bomb,” “terrorist,” and “explosion,” and a book critical of American foreign policy. George alleged that he was unlawfully detained, handcuffed, and locked in a cell for over four hours. He filed a Bivens action against various federal officials alleging an unreasonable search and seizure in violation of the Fourth Amendment. The district court denied the federal defendants’ motion to dismiss, which was founded on qualified immunity, holding that George’s amended complaint stated a valid claim against each defendant. The defendants pursued an interlocutory appeal.


Read the full case note.


Robert A. Vort, Hackensack, NJ


 

March 17, 2014

Interlocutory Order Lifting Stay Not Immediately Appealable


The Eleventh Circuit held that an interlocutory order lifting a stay of a civil action against defendants facing criminal charges in a foreign jurisdiction did not present an important issue warranting appellate review under the collateral-order doctrine.


The plaintiffs alleged that defendants Richard Schair and his company had violated the criminal provisions of the Victims of Trafficking and Violence Protection Act of 2000 (18 U.S.C. § 1591, et seq., as amended by Trafficking Victims Protection Reauthorization Act of 2003, Pub. L. No. 108-193, 117 Stat. 2875) by orchestrating a sex-tourism company in Brazil. The defendants moved for a mandatory stay under 18 U.S.C. § 1595(b) because of related criminal investigations in both the United States and Brazil. The district court granted the motion, finding that the pending U.S. investigation mandated entry of a stay.


Read the full case note.


John L. Bunyan and Tyler J. Wetzel, Carlock, Copeland & Stair, LLP, Atlanta, GA


 

March 13, 2014

Number of Federal Appellate Cases Decreased in 2013


The number of new cases filed in federal appellate courts nationwide, excluding the U.S. Court of Appeals for the Federal Circuit, decreased by 1.8 percent in 2013, according to new data the judiciary released on March 11, 2014.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

March 5, 2014

March 2014 Supreme Court Updates


On March 3, 2014, the U.S. Supreme Court heard oral argument in Hall v. Florida. That case raises the issue of whether Florida’s scheme for identifying mentally retarded defendants in capital cases violates Atkins v. Virginia.


On March 4, 2014, the U.S. Supreme Court heard oral argument in Plumhoff v. Rickard. That case raises issues relating to the applicability of the doctrine of qualified immunity.


On March 5, 2014, the U.S. Supreme Court heard oral argument in Halliburton Co. v. Erica P. John Fund. That cases raises the issue of whether Basic Inc. v. Levinson’s presumption of class-wide reliance derived from the fraud-on-the-market theory should be modified or overruled and whether the presumption may be overruled by evidence that the alleged misrepresentations did not distort the market price of the stock at issue.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

February 3, 2014

Nonappealability Clause Ineffective to Preclude Appellate Review


In this class action against Wal-Mart, class counsel could not agree how a fee award should be allocated among them. They agreed to “binding, non-appealable arbitration.” After the arbitrator made his award, the district court confirmed it as a judgment and one of the law firms appealed. In refusing to dismiss the appeal, the Ninth Circuit held that the agreement was ambiguous because it could be construed to preclude either (i) federal court review of the merits of the arbitrator’s decision; or (ii) district court and court of appeals jurisdiction to review the arbitrator’s decision on any ground, including those for vacatur enumerated in section 10 of the Federal Arbitration Act (FAA).


Read the full case note.


Richard A. Derevan, Snell & Wilmer L.L.P., Costa Mesa, CA


 

February 3, 2014

Arbitration Order that Does Not Dismiss Pending Action Not Appealable


When a district court issues an order compelling arbitration, but does not explicitly dismiss the pending action in which the order was made, is the order appealable? The Ninth Circuit answered this question no, adopting a rebuttable presumption that such an order silent as to dismissal stays the pending action.


Read the full case note.


Richard A. Derevan, Snell & Wilmer L.L.P., Costa Mesa, CA


 

February 3, 2014

Nonparty May Appeal Interlocutory Order Following Final Judgment Entry


A nonparty got roped into district-court litigation when it was served with a subpoena to produce documents. The subpoena resulted in several motions before the district court, confusing district-court orders, and much expense. The district court denied all requests for fees, sanctions, and costs related to the subpoena. Following entry of judgment, the third party subject to the subpoena appealed so that it could challenge the district court’s denial of fees and costs.


Read the full case note.


Richard A. Derevan, Snell & Wilmer L.L.P., Costa Mesa, CA


 

January 29, 2014

Class-Definition Change Does Not Open Door for Interlocutory Appeal


Upon denying a class-action defendant’s second petition for permission to appeal from the denial of a motion to decertify the class, the Seventh Circuit offered a road map to class-action litigants contemplating Rule 23(f) appeals.


Rule 23(f) authorizes a court of appeals to hear interlocutory appeals from “order[s] granting or denying class-action certification.” The Seventh Circuit explained that this includes new certification orders issued by the district judge from time to time altering the class definition, as each such order either grants or denies class-action certification to newly included or excluded class members. A litigant may file new motions with the circuit court seeking permission to appeal such orders. The Seventh Circuit cautioned that this does not open the door for inundating the appellate court with repetitive motions, and explained the material alteration standard.


Read the full case note.


 

January 15, 2014

6th Cir. Dismisses § 1983 Interlocutory Appeal for Lack of Jurisdiction


An appellant-defendant’s failure to concede the facts in the light most favorable to the plaintiff-appellee deprives an appellate court of jurisdiction to hear an interlocutory appeal from a denial of qualified immunity, the Sixth Circuit ruled in Younes v. Pellerito, 2014 WL 67343 (2014).


The plaintiff filed a 42 U.S.C. § 1983 claim against police officers in Dearborn, Michigan, in their individual and official capacities. He alleged that at least five officers had attacked and repeatedly struck him without warning and that he had been placed in a patrol car and taken to the police station at which time the police sprayed him, presumably with mace. Officer and eyewitness accounts varied markedly from the plaintiff’s account. Car-patrol video confirmed a portion of the officers’ account.


Read the full case note.


 

January 13, 2014

Appeal Abandoned Due to Insufficient Statement of Issues


The Eleventh Circuit affirmed the dismissal of a putative class-action complaint where the plaintiffs abandoned on appeal arguments that the district court erred in its alternative holdings that each claim failed as a matter of law.


The litigation arose out of Chapter 2007-1 of the Laws of Florida, which made state-subsidized reinsurance available to Florida insurers but required the insurers to pass the cost savings along to policyholders. Florida’s Office of Insurance Regulation investigated Allstate Floridian Insurance Co. after it accepted the subsidy but also raised premiums by over 40 percent. Allstate eventually agreed to reduce its premiums after it had collected the raised premiums for 14 months. The plaintiffs filed a putative class action arguing that Allstate had violated Chapter 2007-1 and alleging claims for unjust enrichment, breach of contract, breach of fiduciary duty, and breach of the implied covenant of good faith and fair dealing.


Read the full case note.


John L. Bunyan and Tyler J. Wetzel, Carlock, Copeland & Stair, LLP, Atlanta, GA


 

December 23, 2013

Eighth Circuit Rules That Colorado River Order Is a Final Order


An order staying litigation pursuant to the Colorado River abstention doctrine is final for purposes of 28 U.S.C. § 1291 because it has the practical effect of ending the federal case, the Eighth Circuit ruled in Cottrell v. Duke.


Shareholders filed derivative actions in Delaware state court and in federal court in Arkansas. They charged that Wal-Mart management had breached state law fiduciary duties and the Securities Exchange Act of 1934. The complaint alleged a bribery scheme involving Wal-Mart’s Mexican subsidiary and Mexican government officials. Although the lawsuits largely mirrored each other, the federal lawsuit also pleaded claims under the Securities Exchange Act of 1934 as to which federal courts have exclusive jurisdiction. The defendants moved to stay the federal proceeding pending the resolution of the Delaware proceeding. The district court granted the motion, relying on the doctrine established in Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976) or, alternatively, on its inherent power to control its docket. Under Colorado River, a federal court may refrain from hearing a case and instead defer to a concurrent, parallel state-court proceeding if “exceptional circumstances” are present.


Read the full case note.


Michael Goodwin, Jardine, Logan & O'Brien, St. Paul, MN


 

December 10, 2013

Millett Confirmed to D.C. Circuit


President Obama's nomination of Patricia Millett to the Court of Appeals for the D.C. Circuit was confirmed by the Senate.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

December 5, 2013

Time Limit Runs from Entry, Not Service, of Order


The plaintiffs were 24,000 merchants who entered into contracts for credit-or-debit point-of-sales terminals. They filed a class-action complaint pleading that a) the defendants charged small-business owners unconscionable and exorbitant fees to lease terminals and that b) the defendants added costs not included in the contracts. The plaintiffs moved to certify the class.


Read the full case note.


Robert A. Vort, Hackensack, NJ


 

December 2, 2013

Failure to Reference Title VII Claim in Appeal Notice Results in Waiver


The plaintiff in an employment-law case did not preserve his Title VII claim on appeal because that claim was not referenced in his notice of appeal, the Eighth Circuit Court of Appeals ruled in Sayger v. Riceland Foods, Inc. The court also ruled that the defendant’s argument regarding the district court’s instructions to the jury was not properly before the court because the defendant neither moved for a new trial on that basis, nor referenced that issue in its notice of appeal.


Read the full case note.


Michael Goodwin, Jardine, Logan & O'Brien, St. Paul, MN


 

November 27, 2013

Refusal of Subrebuttal Evidence Denied Right to Meaningful Defense


The Second Circuit has held that a district court’s refusal to allow a criminal defendant to put in surrebuttal evidence to respond to evidence presented by the government on rebuttal denied the defendant the right to put on a meaningful defense. The court vacated the conviction and remanded the case to the district dourt for retrial.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

November 14, 2013

Untimely Interlocutory Cross-Petition Not Jurisdictional Defect


A cross-appellant’s failure to timely file a cross-petition for interlocutory review does not preclude review of the issues raised by the cross-petition, the Eighth Circuit ruled in Munroe v. Continental Western Insurance Co. In holding that the deadline for cross-petitions established by Rule 5(b)(2) is not jurisdictional, the court disagreed with the First and Second Circuits, which had held such untimeliness to be a jurisdictional defect.


Munroe arose from a dispute over underinsured motorist (UIM) coverage. The insurer, Continental Western, moved for partial summary judgment on its maximum liability, seeking a ruling that the policy did not permit the plaintiffs to “stack” their claims, and that the policy limit was $500,000, as opposed to $2 million. Interpreting the policy under Missouri law, the district court granted the motion in part and denied it in part, ruling that the policy did not permit stacking but that the policy limit was $2 million. The insurer asked the district court to certify the order for interlocutory appeal, and the court did so.


Read the full case note.


Michael Goodwin, Jardine, Logan & O'Brien, St. Paul, MN


 

November 12, 2013

Anders Procedure Appropriate for Use in Habeas Appeals


In direct appeals from criminal convictions where appellate counsel can find no nonfrivolous issues, the appropriate procedure is to file what has become known as an Anders brief, based on Anders v. California, 386 U.S. 738 (1967). An Anders brief advises the court of appeals that appellate counsel has conscientiously reviewed the record, that the client’s appeal is “wholly frivolous,” and requests permission to withdraw. The request must be accompanied by a brief referring to anything in the record “that might arguably support the appeal.” The Anders procedure is designed to safeguard a defendant’s constitutional right under the Sixth Amendment to direct appellate counsel. A prisoner seeking habeas relief, however, has no such constitutional right and the U.S. Supreme Court has held that an appellant in a postconviction proceeding has no constitutional right to “insist on the Anders procedures.” Pennsylvania v. Finley, 481 U.S. 551, 557 (1987).


Read the full case note.


Richard A. Derevan, Snell & Wilmer L.L.P., Costa Mesa, CA


 

November 12, 2013

Notice of Appeal from Magistrate's Report Not Immediately Effective


A prisoner sent the district court a notice of appeal from a magistrate’s report recommending denial of his habeas corpus petition. The district court lodged the notice but did not file it until two months later, when, after the district court entered judgment confirming the magistrate’s report, the magistrate judge ordered that it be filed. The Ninth Circuit nonetheless dismissed the appeal. It held that Rule 4(a)(2) of the Federal Rules of Appellate Procedure, which permits in some cases a premature notice of appeal from a nonfinal decision to operate as an appeal from the final judgment, does not apply to a magistrate judge’s report and recommendation.


Read the full case note.


Richard A. Derevan, Snell & Wilmer L.L.P., Costa Mesa, CA


 

November 12, 2013

SCOTUS Hears Oral Argument in Town of Greece v. Galloway


The U.S. Supreme Court heard oral argument on November 6, 2013, in Town of Greece, New York v. Galloway. This cases raises the issue of whether and when a legislative prayer practice violates the Establishment Clause of the First Amendment.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

November 12, 2013

SCOTUS Hears Oral Argument in Mississippi ex rel. Hood v. Au Optronics Corp.


The U.S. Supreme Court heard oral argument on November 6, 2013, in Mississippi ex rel. Hood v. Au Optronics Corp. This case raises the issue of whether the Class Action Fairness Act applies to state parens patriae actions.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

November 8, 2013

FBI Triumphs over ACLU in FOIA Case


This was an action under the Freedom of Information Act (FOIA). The district court granted the defendant’s motion for summary judgment and denied the plaintiff’s cross-motion. On appellate review, the court of appeals did not use the standard of appellate review normally appropriate to summary-judgment motions.


Read the full case note.


Robert A. Vort, Hackensack, NJ


 

November 8, 2013

Remand Order Not Final Judgment


This was an Employee Retirement Income Security Act action. A widow sought benefits under the accidental-death-and-dismemberment policy issued by her husband’s employer. The plan administrator denied benefits because the decedent had consumed alcohol before his death. The district court remanded the claim to the administrator to decide if there had been a causal connection between the intoxication and the death.


Read the full case note.


Robert A. Vort, Hackensack, NJ


 

November 8, 2013

Motion to Consider Remand Order Not Collateral Order


This is an action for damages arising from a plane crash. The plaintiffs commenced the action in state court, and the defendants removed. The plaintiffs moved to remand; the district court granted the motion. The defendants moved for reconsideration, which the district court denied. The defendants then appealed the order denying their motion for reconsideration. The court of appeals held that it lacked subject-matter jurisdiction to consider the appeal.


Read the full case note.


Robert A. Vort, Hackensack, NJ


 

November 8, 2013

Appeal Ruled Untimely in Overtime Wages Case


In a case brought for unpaid overtime wages, the case was settled, and the court on August 13, 2012, issued an order granting the plaintiff his attorney fees. The order set the amount of the attorney fees and directed the clerk to close the case. The defendants failed to pay and the plaintiff moved to reopen the case and enter the judgment. The motion was granted and the judgment was entered on January 7, 2013. The defendants filed a notice of appeal as to the attorney fees on February 6, 2013.


Read the full case note.


 

November 5, 2013

Supreme Court Issues Decision in Burt v. Titlow


The U.S. Supreme Court issued a decision in Burt v. Titlow. That case involved the standard for ineffective assistance of counsel where a defendant is seeking to reverse his sentence. Justice Alito held that a "doubly deferential" standard should have been used and reversed the Sixth Circuit's decision, which held that the defendant's counsel, who had advised him to withdraw his guilty plea, had provided ineffective assistance. Although Justice Alito noted that the attorney's actions were "troubling," he found them irrelevant to the narrow question before the Sixth Circuit—whether the state court reasonably determined that the criminal defendant had been adequately advised before withdrawing the guilty plea. Justice Sotomayor issued a concurring decision and Justice Ginsberg issued the decision, concurring in the judgment.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

November 5, 2013

Supreme Court Hears Oral Argument in Bond v. United States


On November 5, 2016, the U.S. Supreme Court heard oral argument in Bond v. United States. This case raises the issue of whether the structural constraints of the Constitution place any limits on Congress's authority to enact legislation implementing a valid treaty.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

November 5, 2013

Supreme Court Hears Oral Argument in Sprint v. Jacobs


On November 5, 2016, the U.S. Supreme Court heard oral argument in Sprint Communications, Inc. v. Jacobs. The case raises the issue of the scope of Younger abstention.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

November 4, 2013

Supreme Court Hears Oral Argument in Walden v. Fiore


On November 4, 2013, the U.S. Supreme Court heard oral argument in Walden v. Fiore. This case raises issues involving personal jurisdiction and venue.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

November 4, 2013

Supreme Court Hears Oral Argument in Sandifer v. U.S. Steel Corp.


On November 4, 2013, the U.S. Supreme Court heard oral argument in Sandifer v. United States Steel Corporation. This case raises the interesting question of what constitutes "changing clothing" under section 203(o) of the Fair Labor Standards Act.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

October 17, 2013

Supreme Court Hears Oral Argument in Kaley v. United States


On October 16, 2013, the U.S. Supreme Court heard oral argument in Kaley v. United States. The Supreme Court granted certiorari to address the following question: When a post-indictment, ex parte restraining order freezes assets needed by a criminal defendant to retain counsel of choice, do the Fifth and Sixth Amendments require a pretrial, adversarial hearing at which the defendant may challenge the evidentiary support and legal theory of the underlying charges?


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

October 17, 2013

Supreme Court Hears Oral Argument in Kansas v. Cheever


On October 16, 2013, the U.S. Supreme Court heard oral argument in Kansas v. Cheever. The Court granted certiorari to decide the following question: When a criminal defendant affirmatively introduces expert testimony that he lacked the requisite mental state to commit capital murder of a law-enforcement officer due to the alleged temporary and long-term effects of the defendant's methamphetamine use, does the state violate the defendant's Fifth Amendment privilege against self-incrimination by rebutting the defendant's mental-state defense with evidence from a court-ordered mental evaluation of the defendant?


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

October 16, 2013

Supreme Court Hears Oral Argument in Daimler, AG v. Bauman


On October 15, 2013, the U.S. Supreme Court heard oral argument in Daimler, AG v. Bauman. That case raises the issue of whether it violates due process for a court to exercise general personal jurisdiction over a foreign corporation based solely on the fact that an indirect corporate subsidiary performs services on behalf of the defendant in the forum state.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

October 16, 2013

Supreme Court Hears Oral Argument in ERISA Case


On October 15, 2013, the U.S. Supreme Court heard oral argument in Heimeshoff v. Hartford Life and Accident Insurance Co. That case raises the issue of when the statute of limitations accrues for judicial review of an ERISA disability adverse-benefit determination.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

October 16, 2013

Supreme Court Hears Oral Argument in Equal-Protection Case


On October 15, 2013, the U.S. Supreme Court heard oral argument in Schuette v. Coalition to Defend Affirmative Action. That case raises the issue of whether a state violates the Equal Protection Clause by amending its constitution to prohibit race and sex-based discrimination or preferential treatment in public-university admissions decisions.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

October 10, 2013

Supreme Court Hears Oral Argument in U.S. v. Woods


On October 9, 2013, the U.S. Supreme Court heard oral argument in United States v. Woods. The case raises the issue of whether a tax penalty or underpayment under IRC § 6662 is appropriate where the underpayment results from a determination that a transaction lacks economic substance because the sole purpose of the transaction was to generate a tax loss by artificially inflating the taxpayer’s basis in property. The Supreme Court had also instructed the parties to address the issue of whether the district court had jurisdiction in this case under 26 U.S.C. § 6226 to consider the substantial-valuation-misstatement penalty.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

October 10, 2013

Supreme Court Hears Oral Argument on Forum Selection Clauses


On October 9, 2013, the U.S. Supreme Court heard oral argument in Atlantic Marine Construction Co. v. U.S. District Court for the Western District of Texas. The case raises the issue of the enforceability of forum selection clauses in contracts.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

October 9, 2013

Supreme Court Hears Oral Argument in McCutcheon v. FEC


On October 8, 2013, the U.S. Supreme Court heard oral argument in McCutcheon v. FEC. This case raises a series of questions relating to the constitutionality of the biennial limits on contributions to non-candidate committees.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

October 9, 2013

Supreme Court Hears Oral Argument in Ineffective-Assistance Case


On October 8, 2013, the U.S. Supreme Court heard oral argument in Burt v. Titlow. This case raises a series of questions as to whether the Court's decision in Lafler v. Cooper, which expanded ineffective-assistance-of-counsel claims, can be extended to ineffective assistance in rejecting plea offers.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

October 7, 2013

Supreme Court Hears Oral Argument in SLUSA Case


On October 7, 2013, the U.S. Supreme Court heard oral argument in Chadbourne & Parke LLP v. Troice. The question raised in that case is whether the Securities Litigation Uniform Standards Act precludes a state-law class action alleging a scheme of fraud that involves misrepresentations about transactions in securities covered by the act.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

October 7, 2013

Supreme Court Hears Oral Argument in ADEA Case


On October 7, 2013, the U.S. Supreme Court heard oral argument in Madigan v. Levin. The question raised in that case is whether state and local government employees may avoid the federal Age Discrimination in Employment Act's comprehensive remedial regime by bringing age-discrimination claims directly under the Equal Protection Clause and 42 U.S.C. § 1983.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

September 26, 2013

"Sham Litigation" Suit Revived by Fourth Circuit


In Waugh Chapel South, LLC v. United Food & Commercial Workers Union Local 27, the Fourth Circuit affirmed the dismissal of a complaint against the Mid-Atlantic Retail Food Industry Joint Labor Management Fund. It held that the fund was not a “labor organization” under the National Labor Relations Act (NLRA). The court also vacated the district court’s conclusion that the Noerr-Pennington doctrine protected the remaining defendants and remanded the action to the district court for further proceedings.


Read the full case note.


 

September 20, 2013

Eighth Circuit: No Pendent Jurisdiction over Cross-Appeal


The Eighth Circuit Court of Appeals dismissed a cross-appeal of an order granting summary judgment to two police officers because the cross appeal was not “inextricably intertwined” with another officer’s appeal from the denial of summary judgment. The court held that it did not have jurisdiction under the collateral-order doctrine, nor did it have pendent jurisdiction.


In Mitchell v. Shearrer, No. 12-1931, No. 12-2058, 2013 U.S. App. LEXIS 18756 (8th Cir. Sept. 10, 2013), police officer Josh Shearrer arrested Charles Mitchell in the doorway of his home, with the assistance of officers Erik Spiker and Clifton Bone. Shearrer responded to a complaint about grass clippings blowing into a neighbor’s yard. Mitchell refused Shearrer’s request to come out of the house. A struggle ensued. Spiker and Bone arrived on the scene after Shearrer, and assisted in taking Mitchell into custody.


Read the full case note.


Michael Goodwin, Jardine, Logan & O'Brien, St. Paul, MN


 

September 6, 2013

Eighth Circuit Rejects Untimely Challenge to NLRB Composition


An employer waived its challenge to the National Labor Relations Board’s (NLRB) composition by raising it for the first time in a Rule 28(j) letter to the court, the Eighth Circuit ruled in NLRB v. RELCO Locomotives, Inc. In concluding that it did not have the authority to decide RELCO’s challenge to the NLRB’s recess appointments, the court disagreed with the D.C. Circuit’s decision in Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013), a decision that is currently under review before the U.S. Supreme Court. The court determined that the NLRB’s decisions were supported by substantial evidence, and therefore granted the NLRB’s application for enforcement and denied RELCO’s petitions for review of the NLRB’s orders.


Read the full case note.


Michael Goodwin, Jardine, Logan & O'Brien, St. Paul, MN


 

August 30, 2013

Texting Drivers Carries Liability Risk


The Superior Court of New Jersey, Appellate Division has held that an individual who texts to someone who is driving is potentially liable for any accident caused by distracting the driver if the person knew or had reason to know that the recipient of the text would view the message while driving and be distracted.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

August 26, 2013

Fisherman's Fine Found Excessive


The Appellate Division of the Superior Court of California, County of San Francisco, held that a fisherman could not be forced to forfeit $47,000 from his legal catch for catching undersized Dungeness crabs under the California Fish and Game Code § 8278(a). While the court found that the statute did impose strict liability on a fisherman if he or she violates the statute, it found that the $47,000 forfeiture from the legal catch was an excessive fine prohibited by the Eighth Amendment of the U.S. Constitution and Article 1, section 17 of the California Constitution in that the forfeiture was 47 times the amount of any fine that could be imposed pursuant to the statute. The court acknowledged that it was not providing a precise formula for setting the amount of a forfeiture, but stated that the amount is one of proportion.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

August 15, 2013

Sixth Circuit's Martin Retiring


Circuit Judge Boyce F. Martin Jr. will retire from the Court of Appeals for the Sixth Circuit as of August 16, 2013.  He has been sitting on that court for 34 years.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

August 14, 2013

Dismissal of Defendant Not Immediately Appealable


The Eighth Circuit Court of Appeals affirmed the district court’s denial of a preliminary injunction to enforce the non-compete provisions of a franchise agreement. The court also held that it lacked jurisdiction to review the dismissal of one defendant for lack of personal jurisdiction. Additionally, the court determined that it lacked jurisdiction to review the order granting the defendant an extension of time to answer the complaint.


The case involved a dispute over an automotive-repair franchise located in Richmond, Virginia. Novus, the Minnesota-based franchisor, sued in the District of Minnesota seeking a preliminary injunction to enforce the non-compete provisions of its franchise agreement and to prohibit its franchisee, Dawson, and his corporation from using the franchisor’s marks or products. The defendants were citizens of Virginia.


Read the full case note.


Michael Goodwin, Jardine, Logan & O'Brien, St. Paul, MN


 

August 13, 2013

McLaughlin Dead at 80


Senior Circuit Judge Joseph McLaughlin of the Second Circuit has died at age 80.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

July 31, 2013

Appeals Court Finds NYC Soda Ban Unconstitutional


The Appellate Division, First Department of the New York Supreme Court has affirmed a decision of Justice Milton Tingling, finding that the New York City Board of Health's Sugary Drinks Portion Cap Rule was unconstitutional as violating the principle of separation of powers. The statute prohibits New York City restaurants, movie theaters, and other food-service establishments from serving sugary drinks in sizes larger than 16 ounces.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

July 29, 2013

Failure to Order Portions of Transcript Dooms Appeal


Concluding that the appellant’s failure to order significant portions of the trial transcript precluded meaningful appellate review, the Eighth Circuit dismissed an appeal of the district court’s order granting judgment as a matter of law on the appellant’s First Amendment retaliation claim in Kelly v. Omaha Housing Authority.


Following her termination from the Omaha Housing Authority (OHA), Bonnie Kelly sued for race and sex discrimination and for First Amendment retaliation. The case proceeded to a four-day jury trial on those claims. At the close of all of the evidence, the district court granted the OHA’s motion for judgment as a matter of law (JAML) on the retaliation claim. The jury found in favor of OHA on the race- and sex-discrimination claims. Following the denial of her post-trial motions, Kelly appealed the district court’s decision granting JAML.


Read the full case note.


 

July 26, 2013

Prosecutor's Scarface Reference Did Not Warrant New Trial


During his trial for drug conspiracy and witness tampering, an intercepted telephone conversation between the accused, Antonio “Tony” Valdez, and a state-turned witness was played for the jury. During the phone call, the state-turned witness referred to Valdez as “Montana,” a reference to the 1983 drug-gangster film Scarface, in which Al Pacino played a ruthless Cuban drug lord named Tony “Scarface” Montana. During closing arguments, the prosecutor, over Valdez’s objections, made references to the movie and the titular character’s role as a drug dealer. Valdez was found guilty of narcotics conspiracy and sentenced to the mandatory minimum of 240 months in prison. Valdez appealed, arguing, among other things, that the government’s Scarface references were prejudicial and warranted a new trial.


Read the full case note.


 

July 26, 2013

Yemini Detainee Failed to Meet Medical-Personnel-Protection Burden


Mukhtar Al Warafi is a Yemini detainee being held at Guantanamo Bay. Al Warafi filed a petition for writ of habeus corpus to the district court, arguing that he was a “medical personnel” afforded protection under the First Geneva Convention, and was being illegally detained. Under the First Geneva Convention, Al Warafi argued, medical personnel are to be “respected and protected in all circumstances,” and if captured “shall be retained only insofar as the state of health, the spiritual needs and the number of prisoners of war require.” The district court rejected Al Warafi’s argument, finding that Al Warafi had not proved that he qualifies as a medical personnel under Article 24 of the First Geneva Convention. Al Warafi appealed the district court’s decision.


Read the full case note.


 

July 15, 2013

Eighth Circuit Holds That Release from Incarceration Moots Appeal


The appellant’s release from custody mooted his appeal from the district court’s order revoking his supervised release, the Eighth Circuit Court of Appeals ruled in United States v. Dunlap. Citing Spencer v. Kemna, 523 U.S. 1 (1998), the court held that the appellant could not show a “concrete and continuing injury” following his release.


The district court found that Dunlap had violated the provisions of his supervised release by assaulting his girlfriend, and sentenced him to one year and one day of imprisonment. Before the appeal was heard, Dunlap was released from custody and his sentence was fully discharged. The circuit court dismissed the appeal as moot.


Read the full case note.


 

July 15, 2013

Rule 68 Offer of Judgment Applies to Counsel-Fee Applications


This is an appeal from a counsel-fee award. The Third Circuit held that a Rule 68 offer of judgment applies to counsel-fee applications even if the underlying judgment sought equitable relief and not monetary damages.


Read the full case note.


Robert A. Vort, Hackensack, NJ


 

July 15, 2013

1st Cir. Joins Circuit Split on Qui Tam First-to-File Jurisdictional Bar


In United States. ex rel. Heineman-Guta v. Guidant Corp., No. 12-1867 (May 31, 2013), the First Circuit joined the D.C. Circuit in holding that the first-to-file bar in the False Claims Act (FCA) prevents a later-filed complaint from proceeding even if the initial complaint failed to satisfy Federal Rule of Civil Procedure Rule 9(b). Rule 9(b) requires that fraud complaints, like those raising FCA claims, be pleaded with particularity.


The case involved the jurisdictional bar to whistleblower actions under the FCA, which provides that “no person other than the Government may intervene or bring a related action based on the facts underlying” a pending action. 31 U.S.C. § 3730(b)(5). Designed to prevent multiple actions from proceeding, the bar creates, in essence, a race to the courthouse in which the first person to file a complaint is able to proceed with his or her case, and others who are not first in line are jurisdictionally prohibited from doing so. The circuits have split, however, about whether the initial complaint must be able to satisfy the pleading requirements of Rule 9(b).


Read the full case note.


Ara Gershengorn, Foley Hoag LLP, Boston, MA


 

July 15, 2013

First Circuit Addresses "Practical Effect" of Denials of Injunctions


Sony BMG Music Entertainment v. Tenenbaum

No. 12-2146 (June 25, 2013)


In Sony BMG Music Entertainment v. Tenenbaum, No. 12-2146 (June 25, 2013), the First Circuit rejected Tenenbaum’s claim that the $675,000 in damages awarded to Sony and other recording companies for Tenenbaum’s illegal download and distribution of music was a violation of Tenenbaum’s right to due process. This decision was the latest in a series of rulings in the case that had first been brought in 2007. Sony and other recording companies had sued Tenenbaum under the Copyright Act, 17 U.S.C. § 101, et seq., claiming that Tenenbaum had unlawfully and willfully downloaded and distributed 30 copyrighted works. At trial, Tenenbaum admitted to having, in fact, distributed more than 5,000 songs. The district court held as a matter of law that Tenenbaum had violated the Copyright Act, and a jury awarded $22,500 damages for each of the 30 violations (within the statutory range of $750–$150,000 for each willful violation).


Read the full case note.


 

July 15, 2013

Removal May Be Based on Facts Discovered by Removing Party


Consent decrees are like injunctions, but they are not injunctions. Accordingly, special rules apply in determining the appealability of some orders relating to consent decrees. In this case, the United States and El Dorado County entered into a consent decree relating to cleanup a landfill operated by the county on U.S. Forest Service land. Shortly thereafter, the county moved to modify the consent decree. The district court found defects in the implementation plan and “suspended” the consent decree pending further orders. The United States appealed, claiming that the Ninth Circuit had jurisdiction because (i) it was an order modifying an injunction appealable under 28 U.S.C. § 1292 or (ii) the government met the extra requirements for appealability outlined in Carson v. Am. Brand, Inc., 450 U.S. 79 (1981).


Read the full case note.


Richard A. Derevan, Snell & Wilmer L.L.P., Costa Mesa, CA


 

July 15, 2013

Order to Show Cause Issued for Filing Frivolous Mandamus Petitions


Counsel filing mandamus petitions in the Ninth Circuit would do well to do a reality check of the grounds supporting the petition before filing it. In three orders (apparently at least two of the cases were related), the Ninth Circuit found not only that the petitioners failed to demonstrate entitlement to mandamus, but that the petitions were “frivolous and wholly without merit.”


Read the full case note.


Richard A. Derevan, Snell & Wilmer L.L.P., Costa Mesa, CA


 

July 15, 2013

Late Tolling Motion Does Not Toll Time to File Notice of Appeal


Following a court trial, the district judge solicited input as to what to include in a final judgment. The parties briefed whether injunctive relief was appropriate. The district court declined to include such relief in the judgment, but the judgment did not explicitly deny an injunction. The losing party then timely filed a motion for judgment as a matter of law and for a new trial. The district court denied those motions. Rather than appealing then, however, the losing party filed what it styled as a motion for reconsideration re injunctive relief.


Read the full case note.


Richard A. Derevan, Snell & Wilmer L.L.P., Costa Mesa, CA


 

July 2, 2013

Fed. Cir. Addresses Jurisdictional Issues in Patent Infringement


During this patent-infringement action, the defendant-counterclaimant, Pylon Manufacturing Corp. moved to bifurcate the issues of liability and damages. In granting Pylon’s motion, the trial court determined that the issue of “willfulness” is a damages issue, and it stayed discovery on all damages issues, including “willfulness,” pending a determination of liability.


Following the trial court’s entry of judgment on the liability issues, the plaintiff, Robert Bosch, LLC, appealed, and Pylon filed a cross-appeal. Bosch then moved to dismiss both its appeal and the cross-appeal, arguing that the Federal Circuit lacked jurisdiction. Although the Federal Circuit initially denied the motion to dismiss, as well as reconsideration of that motion, the court, after oral argument, sua sponte granted a rehearing en banc to determine whether jurisdiction over the appeal exists under 28 U.S.C. § 1292(c)(2).


Read the full case note.


 

June 28, 2013

Supreme Court Delineates Mootness vs. Merits


This case presents an interesting discussion of the relationship between the doctrines of mootness and the merits of a controversy. The Supreme Court reversed the Eleventh Circuit’s holding that a custody case was moot when a child was returned to Scotland with her mother after the parents had divorced, based on the district court’s interpretation of the Hague Convention on the Civil Aspects of International Child Abduction. Although the mother had obtained an order in Scotland preventing her former husband from taking the child to the United States, the Court concluded that these facts merely affected the merits of the parties’ controversy and their chance for success but did not affect the court’s continuing jurisdiction over a live controversy.


Read the full case note.


Jordan B. Cherrick, Law Office of Jordan B. Cherrick LLC, St. Louis, MO


 

June 28, 2013

Supreme Court Rules Against Fired Minister


This case represents an important precedent in revitalizing the Religion Clauses of the First Amendment. In a unanimous opinion written by Chief Justice Roberts, the Court held that the Establishment and Free Exercise Clauses prohibited a lawsuit by a church minister for violation of federal employment statutes.


Cheryl Perich was a member and teacher at the Hosanna-Tabor Evangelical Lutheran Church and School. She enjoyed a special religious status as having been called to this vocation by God. “Called” teachers were given the title, “Minister of Religion, Commissioned.” Her title conferred a religious status in the governance and teaching of the church.


Ms. Perich became ill and took a leave of absence. She later advised the church that she had recovered and wanted to resume her employment. The church, however, had hired another person in her place. After she threatened to sue the church, the church terminated her position.


Read the full case note.


Jordan B. Cherrick, Law Office of Jordan B. Cherrick LLC, St. Louis, MO


 

June 27, 2013

11th Cir. Urged to Adopt Reports and Recommendations Rule


The opinion in Dupree v. Warden, Attorney General, State of Alabama, No. 11-12888, 2013 WL 1875301 (11th Cir. May 7, 2013), canvasses the rules in all of the other circuits governing the appeal of unobjected-to reports and recommendations, and urges the Eleventh Circuit—either through its administrative rulemaking power or a judicial decision en banc—to adopt the majority rule.


Read the full case note.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

June 17, 2013

Fourth Circuit Holds NLRB Overreached


The Fourth Circuit has held that the National Labor Relations Board (NLRB), in enacting a regulation requiring employers to post an official board notice informing employees of their rights under the National Labor Relations Act, acted beyond its power under the Administrative Procedure Act. The court held that Congress had never given the NLRB the power to enact such notice regulations, even though such power had been given to sister organizations.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

May 28, 2013

E-Filing on the Way in New Jersey


E-filing will be coming to the Superior Court of New Jersey, Appellate Division soon.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

May 28, 2013

Srinivasan Confirmed to D.C. Circuit


President Obama's nomination of former Principal Deputy Solicitor General Sri Srinivasan for a seat on the U.S. Court of Appeals for the D.C. Circuit has been confirmed by a 97–0 vote of the Senate.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

May 22, 2013

Ninth Circuit Strikes Down Arizona Abortion Law


The Ninth Circuit has held that an Arizona law preventing abortion after 20 weeks' gestation is unconstitutional. The court stated that under controlling precedents of the U.S. Supreme Court, a state may not deprive a woman of her right to terminate a pregnancy at any time prior to viability.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

May 16, 2013

Court Encourages Active Judicial Management of Case


This is an action for damages arising from a claim of excessive use of force and false arrest. The district judge convened a Rule 16 conference at which time he noted that the defendants had not pleaded the statute of limitations as an affirmative defense. The defendants subsequently moved to amend their answer and, thereafter, moved for judgment on the pleadings. The court granted judgment on the pleadings.


The plaintiff appealed, claiming that the district judge had acted improperly when he sua sponte raised the statute-of-limitations defense at the Rule 16 conference and that the district court should not have granted leave to amend the answer due to the manner in which the judge stuck its judicial nose into the lawyers’ business. The Third Circuit affirmed, stating that the very purpose of the Rule 16 conference is to permit the trial court to assume an “active managerial role” in the litigation process.


Read the full case note.


Robert A. Vort, Hackensack, NJ


 

May 14, 2013

Second Circuit Reminder: File Your Briefs on Time


The Second Circuit wants you to file your briefs on time. In this case, counsel for the appellant sought an extension of its time to appeal because his office had been significantly affected by Superstorm Sandy. The court granted the motion and allowed the appellant an additional month and a half to file its brief. The order granting the motion stated that “the appeal is dismissed effective March 1, 2013 unless a brief is filed by that date. A motion for reconsideration or other relief will not stay the effectiveness of this order.”


On February 26, 2013, the appellant moved for a second extension. That motion was denied as moot on March 8, 2013 because, pursuant to the earlier order, the appeal had been dismissed because of the failure to file the brief by March 1, 2013. On March 8, 2013, the appellant moved to reinstate its appeal.


Read the full case note.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

April 24, 2013

Kelly Confirmed to Eighth Circuit


President Obama's nomination of Assistant Federal Public Defender Jane Kelly of Iowa to a seat on the Eighth Circuit Court of Appeals was confirmed by the Senate by a vote of 96–0.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

April 23, 2013

Federal Circuit Retains Jurisdiction over MSPB Appeals


Marie Conforto worked for the Navy Department until she retired at the end of 2010. She claims that she was forced to retire because of a series of events motivated by age and sex discrimination and for retaliation for her prior equal-employment-opportunity activity. She presented her claim within the Navy Department and lost. The Merit Systems Protection Board (MSPB) dismissed her appeal, and she then appealed to the Federal Circuit. Having invoked the jurisdiction of the Federal Circuit, she then challenged its jurisdiction based upon Kloeckner v. Solis, 133 S.Ct. 596 (Dec. 10, 2012).


In Kloeckner, the Supreme Court held that a federal employee who claims that an agency action, otherwise appealable to the Merit Systems Protection Board, violates a federal anti-discrimination statute listed in the Civil Service Reform Act should seek judicial review in district court, not in the Federal Circuit, regardless of whether the MSPB had decided her case on procedural grounds or on the merits.


Read the full case note.


 

April 22, 2013

First Circuit Addresses "Practical Effect" of Denials of Injunctions


On April 1, 2013, the U.S. Court of Appeals for the First Circuit decided a case of potential interest to appellate practitioners who practice in the federal courts. Watchtower Bible and Tract Society of New York, Inc. v. Colombani, No. 12-1370, 2013 WL 1294449 (1st Cir. Apr. 1, 2013). The case involves several issues of appellate jurisdiction—most notably, the question of when an order is immediately appealable under 28 U.S.C. § 1292(a) because it has the “practical effect” of the denial of an injunction.


The case arises from a First Amendment claim brought by groups of Jehovah’s Witnesses challenging Puerto Rico’s Controlled Access Law—a law that, in the words of the First Circuit, “take[s] a unique approach to the creation of gated communities.” Under that law, a municipality may authorize a homeowner’s association to create a gated community known as an “urbanization.” Unlike in other jurisdictions, the resulting gated community possesses the authority to regulate access to public streets within the community’s confines.


Read the full case note.


Kannon K. Shanmugam, Williams & Connolly LLP, Washington, D.C.


 

April 16, 2013

Confidential Data Subject to Public Disclosure


On March 21, 2013, the Eleventh Circuit decided Federal Trade Commission v. AbbVie Prods. LLC, No. 12-16488, 2013 WL 1149311 (11th Cir. Mar. 21, 2013), which shows that parties who produce sensitive data under court-approved protective orders run the risk that their confidential data could one day might be unsealed on public-interest grounds. The decision also details the procedural steps a party should take should a party desire to seek the unsealing of confidential information during the appellate process.


The decision in Abbvie arose from the Federal Trade Commission's (FTC) investigation of a "reverse payment" settlement agreement between several pharmaceutical companies. Under the agreement, certain companies agreed to delay marketing of generic versions of a testosterone gel marketed by AbbVie Products LLC (formerly known as Solvay Pharmaceuticals), which held a patent over the product, in exchange for a share of the product's profits. The FTC believed this "reverse payment" scheme unlawfully allowed Solvay to maintain a monopoly over the product.

 


Read the full case note.


 

April 11, 2013

Eighth Circuit Vacates EPA Regulations


The Eighth Circuit Court of Appeals has ruled that the U.S. Environmental Protection Agency (EPA) violated the Administrative Procedures Act (APA) in setting forth new water-treatment regulations in two 2011 letters to U.S. Senator Charles Grassley. The court also ruled that it had subject-matter jurisdiction over the Iowa League of Cities’ challenge to the EPA action, that the league’s challenge was ripe for review, and that the league had standing to bring the appeal.


The league sought direct appellate review of the water-treatment rules, as set forth in letters sent by the EPA to Senator Grassley regarding two areas of the EPA’s Clean Water Act regulatory scheme: bacteria mixing zones and a process known as “blending” in wastewater treatment facilities. The league argued that the letters effectively promulgated new regulatory requirements with respect to water-treatment processes at municipally owned sewer systems. The league also argued that the regulations exceeded the EPA’s statutory authority, and that the EPA had violated the Administrative Procedures Act (APA) by implementing the regulations without first proceeding through the notice and comment procedures for agency rulemaking.


Read the full case note.


Michael P. Goodwin , Jardine, Logan & O'Brien, P.L.L.P., St. Paul, MN


 

April 11, 2013

Two Cases Highlight Collateral-Order Doctrine


These cases illustrate the scope of the collateral-order doctrine. Judicially created in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949), the doctrine permits appeals from interlocutory orders that 1) conclusively determine the disputed issue, 2) resolve an important issue completely separate from the merits of the action, and 3) is effectively unreviewable on appeal from final judgment.


Read the full case note.


 

April 10, 2013

Shwartz Confirmed to Third Circuit


The Senate confirmed the nomination of Magistrate Judge Patty Shwartz to a seat on the Court of Appeals for the Third Circuit.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

April 10, 2013

Federal Circuit Affirms Denial of PTSD Claim


The plaintiff claimed an initial disability rating greater than 50 percent for his service-connected post-traumatic stress disorder (PTSD). The Board of Veterans’ Appeals denied the claim. The Court of Appeals for Veterans Claims affirmed the board’s denial, and the plaintiff appealed, asserting jurisdiction under 38 U.S.C. § 7292.


Read the full case note.


 

April 1, 2013

Right to Question Adverse Witness Preserved at Revocation Hearing


In United States v. Johnson, Johnson was convicted of conspiracy to possess stolen mail in 2007 and sentenced to 15 months in prison followed by a three-year term of supervised release, which began in 2009. The government later sought revocation based on a failed drug test and an arrest for second-degree forgery and theft of property. At the revocation hearing, the government did not present live testimony related to the forgery and theft charges, and instead allowed the probation officer to read the police report from the incident into the record. Defense counsel objected, arguing that reading the report into the record violated Johnson’s “right to confront and cross-examine those witnesses against him.” Counsel did not specifically identify Rule 32.1(b)(2)(C) of the Federal Rules of Criminal Procedure as the basis of the objection. The rule provides the accused with a right to question adverse witnesses at a revocation hearing. The court overruled the objection, and sentenced Johnson to 21 months’ imprisonment with an additional three years of supervised release.


Read the full case note.


 

March 28, 2013

Fifth Circuit Upholds Mississippi Non-Economic Damages Caps


The case of Learmonth v. Sears, Roebuck & Co., ___ F.3d ___, No. 09–60651, 2013 WL 708170 (5th Cir. Feb. 27, 2013), raises interesting questions regarding what a federal court of appeals should do when it certifies questions to the highest court of a state, and the state court answers the certified questions or refuses to answer the certified questions on other state law grounds. In Learmonth, a diversity action seeking damages for or injuries sustained by the plaintiff in an accident involving a truck driven by an employee of the defendant, the jury awarded the plaintiff $4 million in a general verdict. However, the jury was not instructed to separate the award into economic and non-economic damages. Pursuant to a Mississippi statute, which governed in this diversity action, non-economic damages were capped at $1 million dollars. See Miss. Code Ann. § 11–1–60(2)(b) (Supp. 2012). Based on this statute, the district court remitted $2,218,905.60 of the stipulated non-economic-damages portion of the verdict to $1 million, and entered judgment for $2,781,094.40. See 2009 WL 2252878 (S.D. Miss. Jul 28, 2009). The district court also rejected the plaintiff's arguments that section 11–1–60(2)(b) violates the Mississippi Constitution's Jury Trial Clause, Separation of Powers Clauses, Due Process Clause, and Remedy Clause.


Read the full case note.


Brad Clanton, Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., Jackson, MS and Washington, D.C.


 

March 25, 2013

Fourth Circuit Upholds Maryland Gun-Permit Law


The Fourth Circuit has upheld Maryland's handgun permitting law, reversing a lower-court decision and concluding that the state can constitutionally require an applicant to show "good and substantial reason" that he or she needs a concealed-carry license.


The court held that the state had shown that the requirement "is reasonably adapted" to its "significant interests in protecting public safety and preventing crime."


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

March 25, 2013

Child Pornography Victim Lacks Standing to Appeal Restitution


The Eighth Circuit Court of Appeals held in U.S. v. Fast that the victim of a child-pornography offense lacks standing to bring a direct appeal of a restitution award, and instead must seek appellate review by mandamus. In denying the writ, a majority of the court held that the victim must show that all losses were “proximately caused” by the defendant’s crime, agreeing with the majority of circuits that have addressed the issue.


The defendant in Fast was convicted of one count of receiving and distributing child pornography. The victim of Fast’s crime, “Vicky,” sought $952,759.81 in restitution, her net documented losses for medical and psychiatric care, therapy, and lost income. The district court awarded $3,333, finding that that was the amount “proximately caused” by Fast’s crime. Vicky filed a direct appeal of the restitution order; she also petitioned for a writ of mandamus under the Crime Victims’ Rights Act (CVRA).


Read the full case note.


Michael P. Goodwin, Jardine, Logan & O'Brien, P.L.L.P., St. Paul, MN


 

March 25, 2013

Order Suspending Consent Decree Is Not Appealable


Consent decrees are like injunctions, but they are not injunctions. Accordingly, special rules apply in determining the appealability of some orders relating to consent decrees. In this case, the United States and El Dorado County entered into a consent decree relating to cleanup a landfill operated by the county on U.S. Forest Service land. Shortly thereafter, the county moved to modify the consent decree. The district court found defects in the implementation plan and “suspended” the consent decree pending further orders. The United States appealed, claiming that the Ninth Circuit had jurisdiction because (i) it was an order modifying an injunction appealable under 28 U.S.C. § 1292 or (ii) the government met the extra requirements for appealability outlined in Carson v. Am. Brand, Inc., 450 U.S. 79 (1981).


Read the full case note.


Richard A. Derevan, Snell & Wilmer L.L.P., Costa Mesa, CA


 

March 25, 2013

Flexibility in Bankruptcy Jurisdiction Permits Appeal of Nonfinal Order


Bankruptcy litigation is not subject to the same hard and fast appellate jurisdictional rules as ordinary civil litigation. In this case, the debtors and the trustee disputed whether an annuity one of the debtors (a married couple) was receiving needed to be included in the calculation of the debtors’ projected disposable income. The bankruptcy court excluded the income and the trustee appealed to the bankruptcy appellate panel (BAP). The BAP reversed and remanded to the bankruptcy court to recalculate the debtors’ income. The debtors then appealed to the Ninth Circuit.


Read the full case note.


Richard A. Derevan, Snell & Wilmer L.L.P., Costa Mesa, CA


 

March 25, 2013

Appeal Waiver Not Vitiated by Court's Ambiguous Statement


A criminal defendant may waive the right to appeal as part of a plea bargain. But in certain circumstances a statement by the court accepting the plea may vitiate the waiver. In this case, the defendant signed a plea agreement that waived his right to appeal and called for sentencing within a certain range. The district court sentenced the defendant to a term within the specified range, and at the end of the sentencing hearing told the defendant that he “may have a right to appeal the sentence.”


Read the full case note.


Richard A. Derevan, Snell & Wilmer L.L.P., Costa Mesa, CA


 

March 25, 2013

"Whitey" Bulger's Writ to Recuse District-Court Judge Granted


In In re James J. Bulger, No 12-2488, 2013 WL 979 075 (Mar. 14, 2013), the First Circuit granted the defendant’s writ of mandamus and reversed the district-court judge’s order denying a motion for recusal of the judge. The writ was sought by James “Whitey” Bulger, a reputed mob boss who was a fugitive from 1994 until his arrest in 2011. During 12 of those years, he was featured prominently on the FBI’s Ten Most Wanted Fugitives list. Bulger has been charged with various offenses including Racketeer Influenced and Corrupt Organizations Act (RICO) violations and the commission of 19 murders ancillary to the RICO conspiracy.


Read the full case note.


 

March 25, 2013

Constitutional Challenge to Abortion-Clinic Buffer Zones Rejected


McCullen v. Coakley

No. 12-1334 (Jan. 9, 2013)

 

In McCullen v. Coakley, No. 12-1334 (Jan. 9, 2013), the First Circuit rejected an as-applied challenge to the statutory 35 foot buffer zone around the entrances, exits, and driveways of three abortion clinics, finding the Massachusetts state statute to be a content-neutral, narrowly tailored time-place-and-manner restriction. In a previous decision from 2009, the court had upheld the act against a facial challenge, and although plaintiffs on appeal asked the court to revisit that issue, the court declined to do so, affirming the district court’s conclusion that the law of the case doctrine barred such reconsideration.


Read the full case note.


 

March 13, 2013

Attorneys May Be Liable for Stealing Clients


The New Jersey Supreme Court has recognized that an attorney can be found liable for poaching another attoney's clients, but the court made clear that such claims would rarely pass muster because the attorney-client relationship is terminable at will.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

March 13, 2013

District Court Considers Evidence Outside Administrative Record


In Helton v. AT&T, Inc., the Fourth Circuit Court of Appeals affirmed the district court’s consideration of evidence outside of the administrative record but known to AT&T, and its determination that AT&T, Inc. and the AT&T Pension Benefit Plan (collectively “AT&T”) breached their statutory and fiduciary duties to Francine Helton.


Helton worked for AT&T until May 1997. When Helton left AT&T, she was a deferred vested pensioner and was not eligible to receive benefits until she turned 65. In August 1997, AT&T amended Helton’s plan to allow certain participants, including Helton, to elect benefits at age 55 without facing any benefit reduction. Under this amendment, Helton was entitled to begin receiving full pension benefits in October 2001. AT&T attempted to notify eligible individuals by mailing communications in 1997 and 1998. Helton testified that she did not receive either of these communications or any other pension-related notice from AT&T.


Read the full case note.


 

March 12, 2013

Taranto Confirmed to Federal Circuit


President Obama's nomination of Washington attorney Richard Taranto to the Federal Circuit was confirmed by the Senate unanimously on March 11, 2013.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

March 11, 2013

Lack of Finality Dooms Appeal


A recent Second Circuit Court of Appeals order in Jolyssa Educational Development LLC v. Banco Popular North America Inc., Case No. 12-4189, slip op January 2, 2013, once more reminds practitioners they must ensure that the order they seek to appeal is a final judgment. In Jolyssa, the district court dismissed three counts of a complaint with prejudice as time-barred, but dismissed the fourth count with leave to replead. The plaintiff filed an amended complaint repleading the fourth count. Then the plaintiff filed a notice of appeal of the counts dismissed with prejudice. The Second Circuit, citing a series of prior decisions, dismissed the appeal, ruling that it lacked jurisdiction because the district-court order was not a final judgment. The plaintiffs’ attempt to replead one count meant the case still continued in the district court.


Read the full case note.


 

March 8, 2013

White Supremacist Gets 40 Years for Soliciting Judge's Murder


The conviction of Matthew Hale, who was convicted and sentenced to 40 years for soliciting the murder of Judge Joan Lefkow has been upheld by the Seventh Circuit. Among the issues raised in his appeal was that minorities should have been barred from his jury (Hale is a white supremacist) and that he should not have been excluded from jury selection (the court held he had waived that issue).

 

Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

March 4, 2013

Eighth Circuit Dismisses Appeal on Finality, Mootness Grounds


In Ruppert v. Principal Life Ins. Co., the court of appeals dismissed the appeal of a putative class plaintiff. It held that the consent judgment dismissing the plaintiff’s claims was not “final” within the meaning of 28 U.S.C. § 1291 because it did not unequivocally dismiss the plaintiff’s claims with prejudice. Alternatively, the court held that plaintiff’s voluntary dismissal of his individual claims rendered the case moot. On both issues, the court deepened existing circuit splits.


Ruppert filed the putative class action in 2006. He alleged violations of the Employee Retirement Income Security Act (ERISA). The district court denied the plaintiff’s motion for class certification, finding that he had failed to satisfy the commonality and typicality requirements of Fed.R.Civ.P. 23(a). After the Eighth Circuit denied the plaintiff’s petition for interlocutory review, he settled his individual claims but reserved the right to appeal the denial of class certification and the right to petition the district court for further relief if the appeal was successful.


Read the full case note.


Michael P. Goodwin, Jardine, Logan & O'Brien, P.L.L.P., St. Paul, MN


 

February 26, 2013

Bacharach Confirmed to Tenth Circuit


The nomination of Magistrate Judge Robert Bacharach to a seat on the Court of Appeals for the Tenth Circuit has been confirmed by the Senate by a vote of 93–0.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

February 14, 2013

New Jersey Town's Billboard Ban Upheld


The Third Circuit has held that a New Jersey town's total ban on highway billboards, without regard to advertising content, does not violate First Amendment free-speech guarantees, upholding U.S. District Judge Robert Kugler's finding that the ordinance was a reasonable means of achieving the town's substantial interests in traffic safety and "maintaining [its] natural beauty."


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

February 14, 2013

Kayatta Confirmed to First Circuit


The Senate confirmed the nomination of William Kayatta Jr., a Maine attorney, to a seat on the Court of Appeals for the First Circuit by a vote of 88–12.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

February 13, 2013

Mother of Justice Alito Dies at 98


The mother of Justice Samuel Alito Jr. has died at age 98. She was a former educator in Hamilton Township, New Jersey.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

February 13, 2013

Circuit Split over Interaction between 8 U.S.C. §§ 1421(c) and 1429


In Klene v. Napolitano, Klene, an alien married to a U.S. citizen, applied for citizenship. The U.S. Citizenship and Immigration Services denied her application after concluding that her marriage was fraudulent. Klene promptly sought relief in the district court under 8 U.S.C. § 1421(c), which allows a judge to make an independent decision about an alien’s entitlement to be naturalized. While Klene’s suit was pending, the agency initiated a separate removal proceeding against Klene, and moved to dismiss her section 1421(c) suit. The agency relied on 8 U.S.C. § 1429, which forbids it from applications for naturalization while removal proceedings are pending. The district court granted the agency’s motion, and dismissed the suit. Klene appealed.


Read the full case note.


 

February 13, 2013

Recourse to Injunctive Relief for Ongoing ADA Violations


In Scherr v. Marriott International, Inc.,Marjorie Scherr, an elderly woman who required use of a walker, filed suit in late 2010 under Title III of the Americans with Disabilities Act (ADA). She sought injunctive relief against the Overland Park Courtyard Marriott and 56 other Courtyard Marriott hotels for their use of spring-loaded door closers that resulted in her injury while staying at the Overland Park Courtyard Marriott in 2006.


First, the Seventh Circuit found that Scherr had standing to sue the Overland Park Courtyard Marriott, but not the other Courtyard Marriott hotels. She had demonstrated her intention to return to the Overland Park Courtyard Marriott if it were to be made accessible to her, but she could not demonstrate a similar intent with the other Courtyard Marriotts.


Read the full case note.


 

February 1, 2013

Federal Employee Properly Sought Review in District Court


In an opinion delivered by Justice Kagan, a unanimous Court held that a federal employee seeking judicial review of an appeal to the Merit Systems Protection Board (MSPB) should file in district court. A federal employee subject to an adverse personnel action may appeal the agency’s decision to the MSPB. In this case, the employee’s claim alleged violation of an antidiscrimination statute listed in Civil Service Reform Act (CSRA) §7702(a)(1), which provides the procedure for appealing such cases to the MSPB. The MSPB dismissed the employee’s appeal on procedural grounds, and the employee sought review in district court.


Read the full case note.


Lara O'Donnell, Berger Singerman, Miami, FL


 

January 28, 2013

Federal Circuit Invalidates Purchased Patents


The Federal Circuit has invalidated three patents owned by Soverain Software, a company that had purchased patents from a dissolved company and used those patents as a basis for bringing lawsuits against other companies that it claimed infringed on its patent rights. The court invalidated the patents on the ground of obviousness. The ruling will wipe out wins that Soverain Software has obtained against other defendants.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

January 3, 2013

Virgin Islands High Court Cases Get Review by U.S. Supreme Court


Under a new law signed by President Obama, there will be direct review of Virgin Island Supreme Court cases by the Supreme Court of the United States.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

December 19, 2012

MCA Conviction Overturned, Act Cannot Be Applied Retroactively


Salim Hamdan was convicted of “material support for terrorism,” a war crime under the Military Commissions Act of 2006 (MCA) for activities he engaged in as an Al Qaeda member from 1996 to 2001, before enactment of the MCA. Hamdan served his sentence, but continued to appeal his war-crime conviction arguing: (1) that Congress lacked authority to make material support for terrorism a war crime; (2) that the MCA could not retroactively apply to pre-2006 conduct; and (3) that the statute governing during the time of his conduct, 10 U.S.C. § 821, did not authorize prosecution of material support for terrorism. The Court of Military Commission Review affirmed his conviction.


Read the full case note.


Maria Mendoza, Washington, D.C.


 

December 14, 2012

Hemingway Cats Subject to USDA Regulation


The Eleventh Circuit has held that the Hemingway Museum in Florida is an animal exhibitor under the Animal Welfare Act and is subject to regulation by the U.S. Department of Agriculture and its Animal and Plant Health Inspection Service. The basis for this ruling is the presence of the “Hemingway cats” at the museum. The Museum argued that the cats had never been transported anywhere and accordingly did not fall within the parameters of the Animal Welfare Act, which requires “distribution” of the animals, which has been defined as being synonymous with “transportation.” In the alternative, the Museum argued that to the extent that its exhibition of the cats can be seen as putting it under the regulation of the Animal Welfare Act, the statute is unconstitutional as to the Hemingway cats. The Eleventh Circuit held that the Department of Agriculture’s interpretation of the word “distribution” is broader than “transportation,” and includes making the animals available to the public for viewing. Under the Chevron doctrine, the department’s interpretation is binding unless it is arbitrary. In that the statute has always been found to regulate zoos, which remains in a fixed site, the court held that the department’s interpretation was not arbitrary. As to the constitutional challenge, the court held that the Hemingway cats had a substantial effect on interstate commerce in that the museum solicited out-of-state visitors to come to the museum and see, among other things, the cats.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

December 12, 2012

First Circuit Rejects Challenges to Groundfish Management Plan


The First Circuit affirmed a district-court ruling that granted summary judgment to the federal defendants against administrative and environmental-law challenges to an amended fishery-management plan for the Northeast Multispecies Groundfish Fishery.


The New England Fishery Management Council, by statute in charge of regulating fishery resources in federal waters off New England’s coast, imposes mandates and deadlines to prevent overfishing. Based in part on a 2008 study that indicated that groundfish stocks were worse than had been previously believed, the council amended and expanded the fishery’s “sector allocation program” and imposed new restrictions on fishing activities.


Read the full case note.


Ara Gershengorn, Foley Hoag LLP, Boston, MA


 

November 30, 2012

Second Circuit Dismisses Retaliation Case for Lack of Jurisdiction


The plaintiff brought an action, claiming retaliation for making statements about his employer, the Long Beach Fire Department. The action was brought against the City of Long Beach, the police department, the volunteer fire department, and 11 individuals. The individuals moved to dismiss, in part, on the ground of qualified immunity. The court denied the motion on that ground, but dismissed as to certain of the individuals on the ground that the plaintiff had failed to state a valid cause of action against them. After the motion (and the death of one of the defendants), only three of the individuals remained in the action. The remaining individuals filed a notice of appeal within the 30-day period, however, the notice of appeal stated that it was Nassau County, which was not a party to the action, that was appealing.


Read the full case note.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

November 21, 2012

Michigan Proposal 2 Violates Equal Protection Clause


On November 15, 2012, the en banc Sixth Circuit held that Proposal 2, a ballot proposal that amended the Michigan Constitution to eliminate consideration of "race, sex, color, ethnicity, or national origin" in individualized college-admissions decisions in Michigan, is unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. Specifically, the court held that Proposal 2 impermissibly restructures the political process along racial lines by removing the power of university officials to consider race as a factor in admissions decisions.


Read the full case note.


Brittany Parling, Skadden, Arps, Slate, Meagher & Flom LLP, Chicago, IL


 

November 14, 2012

Auctioneer Consignors' Names May Not Be Private


The New York Appellate Division, Second Department has held that an auctioneer’s clerk’s notation of a sale made contemporaneously with the bidding, which identified the bidder and the consignor of the antique sold only by number and not by name, did not satisfy the statute of frauds. The court held that the writing or writings constituting the contract must identify by name and not by number the parties to the agreement. While documents other than the auctioneer’s clerk’s notation showed the name of the bidder, the name of the consignor did not appear on any documents presented by the auction house on its motion for summary judgment.  While auction houses typically do not reveal the name of the consignors because they do not believe it to be necessary, the statute of frauds requires the name of the seller.


The auction house intends to seek leave to appeal from the New York State Court of Appeals.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

November 14, 2012

Trump Golf Club Can Keep Caddie's $200k


The Florida Court of Appeals, Fourth District has held that Trump International Golf Club, L.P., does not have to return the $200,000 membership deposit to Harry Theodoraacopulos, who was suspended from the club for “unacceptable behavior” and “abuse of caddies.”  The court of appeals held that the suspension was not an expulsion, which might require the return of the deposit, and remanded the case to the trial court for a decision of any nominal damages to which he might be entitled.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

October 30, 2012

Arbitration Clauses Are Subject to Judicial Review


The Tenth Circuit in Communication Workers of America v. Avaya, Inc. held that a court must make the initial determination whether the parties consented to arbitrate a dispute. At issue was the scope of a collective bargaining agreement (CBA) and an accompanying national memorandum of understanding between Avaya, Inc. and the Communication Workers of American union (CWA).


The CBA applied to the “bargaining unit,” that is, those occupational employees who elected to be represented by the CWA; it did not include management employees. The CBA contained a three-step process for resolving grievances. Only after the first two steps were exhausted with no resolution could the parties arbitrate the dispute. Further, the CBA permitted arbitration only as to matters expressly stated within it and not otherwise expressly excluded.


Read the full case note.


Kendra N. Beckwith, Wheeler Trigg O'Donnell LLP, Denver, CO


 

October 30, 2012

Courts Reviewing Habeas May Consider Harmlessness Sua Sponte


Gover v. Perry involved a habeas petition in which the petitioner, who had been convicted of murder, challenged the constitutionality of hearsay statements admitted at his trial through the testimony of two police officers. With respect to one hearsay statement, the district court determined that the state court had unreasonably applied clearly established Confrontation Clause law when it denied the petitioner’s challenge. Although the state did not argue before the district court that the admission of this testimony was harmless, the district court determined sua sponte that it was.


Read the full case note.


Brittany Parling, Skadden, Arps, Slate, Meagher & Flom LLP, Chicago, IL


 

October 16, 2012

First Circuit Rejects Per Se Refugee Status for China Spouse


In an issue of first impression for the court, the First Circuit joined the Second, Third, Fourth, and Eleventh Circuits and held that refugee status does not automatically extend to the spouse of a person forced to undergo an abortion. Under immigration law, per se refugee status is accorded a “person who has been forced to abort a pregnancy or undergo involuntary sterilization.” 8 U.S.C. § 1101(a)(42)(B). In this case, the petitioner was the husband of such a person. He had entered the United States without inspection after his wife was forced by the Chinese authorities to undergo an abortion, and he had hoped to send for her and his son after gaining permission to remain. The petitioner argued to the court that he should be granted refugee status under the statute because he suffered the same loss as his wife as a result of the forced abortion.


Read the full case note.


Ara Gershengorn, Foley Hoag LLP, Boston, MA


 

October 10, 2012

Order Against 1 of 3 Defendants Not Directly Appealable


In Supreme Fuels Trading FZE v. Sargeant, the Eleventh Circuit dismissed an appeal for lack of appellate jurisdiction. In that case, one of three defendants (defendant IOTC) appealed a district-court ruling enforcing a settlement and imposing a $5 million judgment against IOTC. The ruling, however, did not resolve the claims against the other defendants.


The Eleventh Circuit held that the ruling was not a final order, given that the claims against the other defendants remained pending below. The court further noted that IOTC did not seek a Federal Rule of Civil Procedure 54(b) certification to pursue the appeal.


Read the full case note.


James F. Bogan, III, Kilpatrick Townsend & Stockton LLP, Atlanta, GA


 

October 10, 2012

Appellant Must Appeal All Grounds or Suffer Summary Affirmance


In Little v. T-Mobile USA, Inc., the plaintiff/appellant’s appeal was doomed from the start.


There, plaintiffs filed a putative class action against T-Mobile USA and later moved to certify a class. The district court denied the class-certification motion on five separate grounds, including on the ground that the issue of damages presented individualized issues that were unfit for certification under Federal Rule of Civil Procedure 23.


The plaintiffs appealed the order denying certification to the Eleventh Circuit. (It appears that the plaintiffs petitioned the Eleventh Circuit under Federal Rule 23(f) to take an interlocutory appeal of the ruling, and the Eleventh Circuit granted the petition, but the opinion does not specify how the appeal came to be heard.) The plaintiffs did not, however, address the district court’s “damages-predominance” ruling in their briefs. This was significant, because the Eleventh Circuit found that particular ruling to be “an alternative, independent ruling.”

 


Read the full case note.


James F. Bogan, III, Kilpatrick Townsend & Stockton LLP, Atlanta, GA


 

September 14, 2012

No Appeal or Review for Order Refusing to Seal Pretrial Competency Proceedings


Over a lengthy dissent, the Ninth Circuit has held that an order refusing to seal pretrial competency proceedings is not appealable under the collateral-order doctrine, nor reviewable by a petition for writ of mandamus. To be reviewable on appeal under the Supreme Court’s Cohen doctrine, a nonfinal order (i) must conclusively determine the disputed question; (ii) resolve an important issue completely separate from the merits; and (iii) be effectively unreviewable on appeal from the final judgment. The majority readily concluded that Guerrero met the first two elements, but concluded that his effort to obtain review under Cohen foundered on third. Relying heavily on the Supreme Court’s decision in Mohawk Indus., Inc. v. Carpenter, 130 S.Ct. 599 (2009), the majority held that it had to be cautious in applying the collateral-order doctrine because “once one order is identified as collateral, all orders of the same type must be considered collaterally.”


Read the full case note.


Richard A. Derevan, Snell & Wilmer L.L.P., Costa Mesa, CA


 

September 14, 2012

Third Circuit Overturns District Court in Excusable Neglect Case


The defendant cross-appealed from a district-court order that extended the time in which the plaintiff could file his notice of appeal from a summary judgment. The court of appeals held that the district court had abused its discretion in finding that the plaintiff had established “excusable neglect” under Fed. R. App. P. 4(a)(5).


The plaintiff had alleged employment discrimination and several related violations of employment law. On January 5, 2010, the district court granted summary judgment for the defendant. On January 13, 2010, the defendant moved for attorney fees and costs under Fed. R. Civ. P. 68. The district court scheduled a hearing on the motion that it then adjourned to March 1, 2010. After the hearing, the defendant filed another contested motion to seek fees directed personally against plaintiff’s counsel. Then the defendant withdrew both the original motion and the amended motion.


Read the full case note.


Robert A. Vort, Hackensack, NJ


 

September 14, 2012

Counsel Fails to Submit Joint Appendix in Walmart Case


This action claims that Walmart did not pay overtime to which the members of the putative class were entitled. The plaintiffs pleaded claims under the Fair Labor Standards Act, under the Racketeer Influenced and Corrupt Organizations Act (RICO) and under various other theories. The district court denied certification and dismissed the RICO claims and the claim of false imprisonment.


Read the full case note.


Robert A. Vort, Hackensack, NJ


 

August 16, 2012

No Fourth Amendment Violation Tracking Mobile Phone GPS


The Sixth Circuit has held that there is no Fourth Amendment violation when a criminal defendant is tracked through the global positioning system (GPS) technology on his or her disposable mobile phone. The majority relied on U.S. v. Knotts, a 1983 Supreme Court case that held that the government's use of a beeper to track a suspect "amounted principally to the following of an automobile on public streets and highways." The majority also distinguished the case from U.S. v. Jones, a 2012 Supreme Court has that held that a government's placement of a GPS device on a car is a Fourth Amendment search, holding that this case was different because there was no physical intrusion by the government: "Because authorities tracked a known number that was voluntarily used while traveling on public thoroughfares, Skinner did not have a reasonable expectation of privacy in the GPS data and location of his cell phone. Therefore, suppression is not warranted and the district court correctly denied Skinner's motion to suppress." Judge Bernice Donald concurred with the judgment, however, expressing her belief that there had been a Fourth Amendment violation. She felt, however, that the case fell within the good-faith exception set out in a 1984 Supreme Court ruling U.S. v. Leon because there was no evidence of police misconduct.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

August 13, 2012

Complying with Subpoena Order Does Not Moot Appeal from Order


The United States subpoenaed customer records from a utility company, which refused to comply with the subpoena, citing customer-privacy issues. After the district court ordered the subpoena enforced, the utility company provided the requested records, but nevertheless appealed from the order. On appeal, the Ninth Circuit considered on its own initiative whether the appeal was moot.


Read the full case note.


Richard A. Derevan, Snell & Wilmer L.L.P., Costa Mesa, CA


 

August 13, 2012

No Qualified Immunity in Case of Defective Search Warrant


Paul Armijo, former police chief of the Village of Columbus, New Mexico, brought a section 1983 action against several individual and entity defendants, including the Village of Columbus and the Sixth Judicial District Attorney’s Office.


The facts on appeal established that in early 2007, Armijo was the subject of a criminal investigation by the defendants. At the crux of the allegations was a conflicting bid and purchase order relating to the purchase of city firearms; while the original bid sheet ordered six firearms, the purchase order, accompanying check, and city inventory reflected that only four firearms were purchased. Armijo was alleged to have purchased the other two firearms for personal use.


Read the full case note.


Kendra N. Beckwith, Wheeler Trigg O'Donnell LLP, Denver, CO


 

August 13, 2012

Class Certification Denial Appealable after Personal Claims Settled


In this case, the Ninth Circuit dealt with two issues of appellate jurisdiction—one basic, and one tricky. The appellant sought to raise on appeal issues pertaining to orders on partial summary judgment entered before the final judgment. The appellee claimed that the court lacked jurisdiction to consider these issues because “the district court’s order did not ‘incorporate or refer to the partial summary judgment rulings.’” The Ninth Circuit swiftly rejected this argument, stating that the circuit takes a “pragmatic approach”  to finality, there is no requirement that a judgment incorporate prior rulings to be final, and because the appeal was from the final judgment, there is “no danger of a piecemeal appeal.”


Read the full case note.


Richard A. Derevan, Snell & Wilmer L.L.P., Costa Mesa, CA


 

August 13, 2012

EPA Seeks to Correct Flawed Rulemaking; Court Lets Rule Stand


Two environmental organizations petitioned for review of final rulemaking by the Environmental Protection Agency (EPA). On appeal, the groups and the EPA acknowledged that the case should be remanded. The Ninth Circuit agreed to do so, stating that the court only refuses a voluntary remand if the request is frivolous or made in bad faith, i.e., to avoid judicial review. That was not the case here, so the court granted the remand request.


Read the full case note.


Richard A. Derevan, Snell & Wilmer L.L.P., Costa Mesa, CA


 

August 13, 2012

Order Refusing to Unseal Court Records is Appealable


The district court appointed an expert under Rule 706 to help it with damages and causation issues in two pending class actions. The expert provided a report, but the district court ordered it to be sealed while the court decided whether the report would be admissible in conjunction with the defendants’ summary-judgment motions. The case settled before the court did so. A defendant in another pending case raising the same issues then intervened and moved to unseal the court records relating to the expert’s report.


Read the full case note.


Richard A. Derevan, Snell & Wilmer L.L.P., Costa Mesa, CA


 

August 13, 2012

Exhaustion of Remedies under RLA Not Jurisdictional Requirement


In Emswiler v. CSX Transportation, Inc., the Sixth Circuit held that the plaintiff's failure to bring his claims for breach of a collective bargaining agreement and disability discrimination under the mandatory arbitral mechanism established by the Railway Labor Act (RLA) prohibited the district court from adjudicating the merits of those claims but did not deprive the district court of federal subject-matter jurisdiction.


Read the full case note.


Brittany Parling, Skadden, Arps, Slate, Meagher & Flom LLP, Chicago, IL


 

August 13, 2012

Failure to File Constitutes Ineffective Assistance Despite Waiver


In Campbell, the defendant pleaded guilty to charges relating to his participation in a mortgage-fraud conspiracy. As part of his guilty plea, he agreed, with only a few exceptions, to waive the right to challenge his conviction or sentence on either direct appeal or collateral review. After he was sentenced, the defendant did not file a notice of appeal. However, he subsequently filed a motion to vacate his sentence, arguing that he was denied effective assistance of counsel when his attorney failed to file a requested notice of appeal. The district court rejected the defendant's claim, reasoning that the defendant could not establish prejudice because any appeal would have been dismissed under the plea agreement's appeal-waiver provision.


Read the full case note.


Brittany Parling, Skadden, Arps, Slate, Meagher & Flom LLP, Chicago, IL


 

August 2, 2012

Appeals Allowable Only if Subpoena Not Addressed to Privilege Holder


The government issued a subpoena duces tecum requesting production of documents of ABC Corp., John Doe 1, and John Doe 2. Counsel for ABC and Doe 1, LaCheen, Wittels & Greenberg, LLP delivered the requested documents to Blank Rome, LLP, which represented Doe 2. ABC, Doe 1, and Doe 2 moved to quash the subpoena, claiming that the attorney-client privilege of ABC and the work-product rule shielded the documents from disclosure. Doe 1 was the president of ABC; Doe 2 was the son of Doe 1. ABC had been administratively dissolved.


The district court directed Blank Rome and the LaCheen firm to produce the documents. It held that the crime-fraud doctrine overcame any privilege or work-product protection.


Read the full case note.


Robert A. Vort, Hackensack, NJ


 

July 25, 2012

No Secular Graduations in Church


The Seventh Circuit, in an en banc decision written by Judge Flaum, held that a Wisconsin school cannot hold a secular graduation ceremony in a church. Judges Ripple, Easterbrook and Posner dissented.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

July 25, 2012

Ninth Circuit Differs from Seventh on Attorney Sanctions


The Ninth Circuit has held that, in sanctioning an attorney, a district court must take into account the ability of the lawyer to pay, putting it at odds with the Seventh Circuit, which has held to the contrary.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

July 17, 2012

Ninth Circuit Reverses Mini-Wheats Settlement


The Ninth Circuit reversed a district court's approval of a settlement of a class action involving the false advertising of a breakfast cereal. The settlement provided that some of the proceeds would be given to charity. The court held: "The settlement provides no assurance that the charities to whom the money and food will be distributed will bear any nexus to the plaintiff class or to their false advertising claims and therefore violates our well-established standards governing cy pres awards. Moreover, the attorneys' fees are impermissibly high considering what the defective settlement provides the class."


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

July 12, 2012

False Statements to Probation Officer Not Protected


Brent Vreeland was convicted of making false oral and written statements to a federal probation officer in violation of 18 U.S.C. § 1001(a)(2). The Sixth Circuit affirmed the district court's denial of Vreeland's motion to suppress his statements on the ground that admitting them violated his Fifth Amendment right against self-incrimination. The court reasoned that Vreeland was not "in custody" at the time of making the statements; rather, he was attending his regular monthly meeting at the probation office and he was free to leave after the meeting. Thus, there was no evidence that Vreeland felt compelled to answer the probation officer's questions or that he could not invoke his Fifth Amendment privilege against self-incrimination. Moreover, the probation officer did not expressly or impliedly suggest to Vreeland that invoking his Fifth Amendment privilege would lead to revocation of his probation—the probation officer only advised Vreeland that he could be subject to federal charges if he lied.


Read the full case note.


Brittany Parling, Skadden, Arps, Slate, Meagher & Flom LLP, Chicago, IL


 

July 2, 2012

No Appeal of Denial in Part of Motion to Terminate Consent Decree


The D.C. Circuit held that it did not have jurisdiction to decide the District of Columbia’s appeal of an interlocutory order denying in part the district’s motion to terminate a consent decree. Based on a 1993 class action against the district for violating the Medicaid Act, the district entered into a consent decree that governed its provision of Medicaid services. In 2009, the district motioned to have the decree terminated on two grounds: 1) A Supreme Court decision has made clear that plaintiffs have no private right of action to enforce the Medicaid Act; and 2) even if a private right of action existed, the district was in compliance with the act. After the district court rejected the district’s private-right-of-action argument, the district appealed. However, the compliance argument was never resolved and remained pending as of the date of this decision.


Read the full case note.


Jason P. Kairalla, Jorden Burt LLP, Miami, FL


 

July 2, 2012

D.C. Circuit Clarifies Title VII Confusion


In Ponce v. Billington, the D.C. Circuit held that plaintiffs in Title VII employment-discrimination cases are not required to show that discrimination was the sole reason for the adverse employment action. After unsuccessfully applying for a position as director of the Library of Congress’s Office of Workplace Diversity, the plaintiff, a Hispanic male, filed suit alleging that the library discriminated against him in violation of Title VII.


Read the full case note.


Jason P. Kairalla, Jorden Burt LLP, Miami, FL


 

June 28, 2012

Seventh and Sixth Circuits Split on Clothes-Changing Time


In Sandifer v. U.S. Steel Corporation, steelworkers brought a class action under the Fair Labor Standards Act (FLSA), arguing that U.S. Steel violated the act by failing to compensate them for time spent changing into and out of their work clothes in a locker room at the plant and for time spent traveling between the locker room and their work stations, where the collective-bargaining agreement between U.S. Steel and the steelworkers’ union did not require compensation for such time. The Seventh Circuit rejected the steelworkers’ argument on interlocutory appeal, and found that the district court should dismiss their suit.


Read the full case note.


Meaghan Gragg, Hughes Hubbard & Reed LLP, New York, NY


 

June 19, 2012

Sixth Circuit Panel Disagrees Over Scope of ERISA Preemption


These consolidated appeals arose from the misconduct of investment advisor Barry Stokes, who along with his company, 1Point Solutions, LLC, purloined millions of dollars from the employee-benefits plans Stokes managed. Several former clients of 1Point and Stokes's bankruptcy trustee sued Regions Bank—the bank where the accounts were held—alleging that it negligently or knowingly allowed Stokes to steal from the fiduciary accounts held at the bank. The plaintiffs brought claims against the bank for violations of the Employee Retirement Income Securities Act (ERISA) and the Tennessee Consumer Protection Act, negligence and recklessness, and unjust enrichment. The district court dismissed the ERISA claim and, two years later, concluded that the state-law claims were preempted by ERISA.


Read the full case note.


Brittany Parling, Skadden, Arps, Slate, Meagher & Flom LLP, Chicago, IL


 

June 13, 2012

Tenth Circuit Vacates Sentence of Fake Lawyer


The Tenth Circuit has vacated the sentence of a fake lawyer, who had represented criminal defendants in a number of federal courts throughout the country, and remanded the case for reconsideration. The court held that the district court had made a mistake in calculating the advisory guideline range within which it intended to sentence him and that the government had not met its burden of proof in showing that restitution in the amount awarded was justified. The defendant did not represent himself in this appeal.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

June 13, 2012

Arizona Supreme Court's Hurwitz Confirmed to Ninth Circuit


Justice Andrew Hurwitz of the Arizona Supreme Court has been confirmed by the Senate for a seat on the Ninth Circuit Court of Appeals. Hurwitz, 64, was born in New York, grew up in New Jersey, and attended Princeton University and Yale Law School.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

June 8, 2012

D.C. Circuit Opposes Acronyms


The D.C. Circuit has noted its distaste for the use of acronyms in National Association of Regulatory Utility Commissioners v. United States Department of Energy.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

June 5, 2012

False "Gay" Accusation No Longer Defamatory


It’s no longer defamatory to falsely call a person “gay,” says the New York Appellate Division, Third Department. The court rejected prior decisions holding that such an assertion was defamatory on public-policy grounds.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

June 4, 2012

First Circuit Rules Against DOMA


The First Circuit has struck down section 3 of the Defense of Marriage Act based on equal-protection grounds. Section 3 is the provision of the law that defines a marriage as being between one man and one woman.


Sanford Hausler, Cox Padmore Skolnik & Shakarchy, New York, NY


 

May 25, 2012

Claims Actionable Under State Law Not Preempted by HOLA, HAMP


The plaintiff in Wigod v. Wells Fargo brought a class-action suit in the Northern District of Illinois on behalf of all homeowners who applied to Wells Fargo for a loan modification under the Home Affordable Mortgage Program (HAMP), entered into a trial-period-modification-plan agreement with Wells Fargo, complied with the terms of the agreement, and were denied a permanent modification of their loan. The Wigod plaintiff asserted claims against Wells Fargo under Illinois common law, such as breach of contract and fraud, and for violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA). The Seventh Circuit held that these state-law claims were viable, and were not preempted or otherwise barred by federal law.


Read the full case note.


Meaghan Gragg, Hughes Hubbard & Reed LLP, New York, NY


 

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.


Read the full case note.


Jordan B. Cherrick, St. Louis, MO


 

May 22, 2012

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.


Read the full case note.


Jordan B. Cherrick, St. Louis, MO


 

May 16, 2012

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.


Read the full case note.


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.


Read the full case note.


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.


Read the full case note.


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).


Read the full case note.


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.


Read the full case note.


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.


Read the full case note.


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).


Read the full case note.


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.


Read the full case note.


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.


Read the full case note.


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


 

February 15, 2012

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.


Read the full case note.


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.


Read the full case note.


Brittany Parling, Skadden, Arps, Slate, Meagher & Flom LLP, Chicago, IL


 

February 8, 2012

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.


Read the full case note.


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.


Read the full case note.


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.


Read the full case note.


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.


Read the full case note.


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.


Read the full case note.


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.


Read the full case note.


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. 


Read the full case note.


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.


Read the full case note.


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


 

November 1, 2011

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


 

November 1, 2011

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.


Read the full case note.


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.


Read the full case note.


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.


Read the full case note.


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.


Read the full article.


 

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.


Read the full case note.


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.


Read the full case note.


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.


Read the full case note.


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.


Read the full case note.


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.


Read the full case note.


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.


Read the full case note.


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.


Read the full case note.


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.


Read the full case note.


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.


Read the full case note.


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.


Read the full case note.


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.


Read the full case note.


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.


Read the full case note.


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."


Read the full case note.


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.


Read the full case note.


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.


Read the full case note.


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).


Read the full case note.


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.”


Read the full case note.


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.


Read the full case note.


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.


Read the full case note.


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.


Read the full case note.


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.

 

» Read More

 

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.

 

» Read More

 

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.

 

» Read More

 

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.

 

» Read More

 

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.

 

» Read More

 

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.

 

» Read More


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.

 

» Read More


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.

 

» Read More


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.

 

» Read More


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.

 

» Read More


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.

 

» Read More

 

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.

 

» Read More

 

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.

 

» Read More

 

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.

 

» Read More


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.

 

» Read More

 

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.

 

» Read More

 

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.

 

» Read More

 

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.

 

» Read More

 

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:


 

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.

 

» Read More

 

Sanford Hausler, New York, NY


 

February 28, 2010

 

The Federal Circuit held that a patent for a “memorabilia card” is invalid due to obviousness.

 

» Read More

 

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.

 

» Read More

 

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.

 

» Read More

 

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.

 

» Read More

 

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.

 

» Read More

 

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.

 

» Read More

 

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.

 

» Read More

 

Sanford Hausler, New York, NY