Sympathy. I would like to send my sincerest sympathy to Second Circuit Judge Carbarnes, whose mother diied at age 96 on April 2, 2006.

A Star in Town. Since the Second Circuit is the most important commercial law federal court in the country, it should be no surprise that national appellate stars appear before it. Nevertheless, I have not noticed Carter Phillips's name on a Second Circuit decision as counsel (or anything else) in a while.

Phillips represented Tribune Televison Co. in Ellis v. Tribune Television Co. Tribune owned both television stations and a newspaper in the Hartford, Connecticutt area, in violation of FCC rules. Tribune had received several temporary waivers of the rules and has applied for a permanent waiver, but when the last temporary waiver had expired and the application for a permanent wavier was pending, Neil Ellis, a Hartford resident, brought suit under 47 U.S.C. 401(b).

Tribune moved to dismiss the action on the ground that the FCC had revised its rule prohibiting ownership of both television stations and newspapers in the same geographic area and that, under the new rule, its cross-ownership was legal. It also argued that the factual and legal issues involved in the case were not ripe because the FCC had not acted upon Tribune's application for a permanent waiver. Tribune finally argued that the doctrine of primary jurisction required dismissal in light of the administrative proceedings before the FCC.

Ellis moved for summary judgment.

While the motions were pending, implementation of the FCC's new cross-ownership rule had been stayed by the Third Circuit.

The District Couirt denied Tribune's motion and granted summary judgment in Ellis's favor.

The Second Circuit reversed, holding that the "district court erred in failing to recognize the FCC's primary jurisdction in this matter." The Court vacated the District Court's decision and remanded the case to the District Court with instructions to dismiss.

The decision, which was issued on March 29, 2006, can be found on the Second Circuit's website.

Congratulations, Carter!

Fee changes. Prices are going up everywhere, and the Second Circuit is no exception. The new fee schedule can be found at the Second Circuit website.

Supreme Court Practice. The newest issue of The Journal of Appellate Practice and Process has a number articles on Supreme Court Advocacy: Acquiring the Necessary Experience. This is a topic of great interest to me, given my special interest in appellate advocacy and Supreme Court advocacy being at the top of the heap of that discipline. There is a preface by David C. Frederick, the author of Supreme Court and Appellate Advocacy. It is interesting, but it leans too much to the modern belief that Supreme Court advocacy is best done by Supreme Court specialists. While there is a lot to be said for that school of thought, the idea that you should stay away from the Supreme Court unless you've worked for the Solicitor General or some advocacy group that appears before the Court often is hard to swallow. As lawyers, we often deal with issues in areas of law, which we are new to. We might even go to Courts that we have never been to before. Should a lawyer, no matter how experienced, never take on an antitrust case because he or she is not an antitrust expert?

Fortunately, there is a growing literature on Supreme Court practice, Supreme Court oral arguments can be downloaded off the internet, and examples of cert petitions and merits briefs from the Court are readily available. (See here and here, for instance.) So while a practioner might give serious thought before taking on a case before the Supreme Court (assuming he or she is lucky to get one), I would argue that it is something that can be done without being an experienced Supreme Court practitioner.

I shouldn't give you the impression that Mr. Frederick only speaks of this subject; indeed, it is only a subtext, which I pick up because I am sensitive to it. Although I have filed amicus briefs (both at the petition stage and the merits stage), cert petitions and oppositions to certiroari, I have never appeared before the Court . . . yet. And I refuse to be deterred.

There is an article on the Stanford Supreme Court Clinic run by Tom Goldman, an experienced Supreme Court advocate who blogs at SCOTUSblog, Amy Howe, his wife and partner, and Pamela Karlan of Stanford. That clinic is only of use to attorneys who wish to appear before the Court if you are a student at Stanford, in which case it is excellent. If you have a case that might merit Supreme Court review but which your client cannot afford, the clinic might take the case, but you are basically going to be handing it off to the students and the instructors. But since the instructors (Goldman, Howe and Karlan) are top notch, it certainly would good for the client.

Frederick also mentions that the Georgetown Law Center's Supreme Court Institute provides free moot courts if you are arguing before the Supreme Court, provided you are the first attorney on a case to get in touch with it. I expect that that is a very helpful service to an attorney, whether experienced or not.

I have not read the other articles in the issue (although I'm pretty much through the one on the Stanford Supreme Court Clinic), and I may have more to add in another post. We'll see.

Another new blog. All right, it's not really new. It's been up and running since last November. But it's new to me. Sui Generis, a New York law blog, written by Nicole Black of Rochester, New York, is definitely worth viewing. Don't take my word for it. See for yourself.

By the way, in the interest of full disclosure, Nicole has been kind enough to mention this blog in an article entitled "Use of Law Blogs Is On th Rise" in the Daily Record. She's posted a link to the article here.

New blog. The Second Circuit Sentencing Blog has appeared to deal with substantive cases on sentencing law in the Second Circuit. Since I don't usually cover such cases, anyone interested in that area of the law in the Second Circuit might want to check it out.

Reply briefs. I had stated a couple of weeks ago, that I would be blogging about issues of general interest to appellate lawyers. This is the first such post. I have been reading Judge Ruggero J. Aldisert's Winning on Appeal: Better Briefs and Oral Arguments. Judge Aldisert makes a statement that I have also heard from other jurists, but with which I could never agree. He suggests that reply briefs should only be filed in very limited circumstances. From the judge's point of view, I can understand that less paper is better than more paper. But from an attorney's point of view, it makes no sense. The appellee, since he files his brief after the appellant, get's a chance to comment on the points made by the appellant. The appellant, however, if no reply brief is filed, never gets a chance to take issue with the appellee's points (especially if there is no oral argument). In most cases, the appellee will make arguments that are worth rebutting in some way. I surely agree that a reply brief should not be filed if its only purpose is to repeat what is said in the appellant's initial brief. But if no answer can be made to the appellee's brief, then the appellant probably should deserves to lose the appeal.

Having said this, I still highly recommend Judge Aldisert's book.

Unwaiving a waived right of appeal. The Second Circuit, in Campusano v. United States has decided the issue of whether a criminal defendant, who instructs his attorney to file a notice of appeal despite a waiver of his right to appeal in his plea agreement, has suffered per se ineffective assistance of counsel if his attorney fails to do so.

Campsano's plea agreement contained a provision that he would not appeal or otherwise challenge his sentence provided the sentence fell within a stipulated range.of 108-135 months. He was sentenced to 108 months. He twice instructed his attorney to file a notice of appeal, but his attorney did not do so. He then moved, pursuant to 28 U.S.C. 2255, to vacate, set aside or correct his sentence on the basis of ineffective assistance of counsel. Campano argued that the failure to file a requested notice of appeal constitutes ineffective assistance and that no independent showing of prejudice was required.

The District Court denied Camuosano's motion, holding that the rule that the failure to file a notice of appeal constitutes per se ineffective assistance unless the defendant asks his attonrey to file an appeal that raises one of the permitted grounds for appeal despite the plea waiver. Campusano appealed.

The Second Cirucit reversed. It noted that while plea waivers were enforceable in most cases, "important constitutionsal rights require some exceptions to the presumptive enforceability of a waiver." These rights are endangered when an attorney fails to file a notice of appeal. The Court remanded the case to the district court for a determination of whether Campusano in fact instructed his attorney to file an appeal. If he did give such an instruction, he is to be allowed a direct appeal.

The decision in this case can be found at the Second Circuit website. The case was decided on March 23, 2006.

Quattrone wins! Frank Quattrone's conviction was vacated because of erroneous jury instructions. The Court also decided that Judge Richard Owen should not retry the case (if it is retured), but should be assigned to a new judge. The decision in United States v. Quattrone can be found at the Second Circuit website. The decision was issued on March 20, 2006.

Upcoming. Judge Batts of the Southern District of New York dismissed an action brought by the City of New York against internet cigarette sellers. Judge Batts held that the City had failed to plead a proper case under RICO. The City has said that it plans on appealing to the Second Circuit. An article on this case appears in today's New York Law Journal. It may not be available to you on-line if you are not a subscriber. (Sorry.)

Privilege. Francia Collazos was in prison and kept a journal. Part of the journal involved conversation she had with her attorney. Part involved incidents with defendant Nicholas DeFonte. DeFonte found out about the existence of the journal and subpoenaed it. Collazos moved for a protective order on the ground that the journal was privileged. The district court denied the motion.

The Second Circuit held that those portions of the journal that described conversations with her attorney were privileged. The other sections were privileged if they set out material she intended to discuss with her counsel. The Court remanded the case for a hearing as to whether the journal fell within the scope of the privilege as it set out in its decision. The decision in United States v. DeFonte can be found at the Second Circuit website. It was decided on March 15, 2006.

Certified questions to Connecticut. Northfield Ins. Co. v. Derma Clinic Inc. involved allegations of sexual assaults by a masseuse. The plaintiffs in those actions also sued the massage company and its onwer. The company and owner were sued for failing to advise the plaintiffs in these actions that there had been complaints against the employee, failure to investigate the allegations, continuting to employ the employee, failing to report the employee to the proper authorities and other claims stemming from these allegations.

The company and its owner relied on two insurance companies to cover their defense against the claims. The first policy was a professional liability policy and covered the company and its executive officers and directors (but only with respect to their duties as the company's officers and directors. The policy describes the business of the company as "massage therapist." This policy exluded any damages arising out of any dishonest, fraudulent, criminal or malicious act or omission of any insured or "employees."

The second policy on which the company and its owner relied was a commerical general liability policy. The policy excludes coverage for bodily injury arising out of the rendering or failure to render any professional services, including bu t not limited to . . . massage.

The Insurance Company disclaimed coverage and commenced a declaratory judgment, seeking a determination that their insurance policies did not obligate it to defend or indemnify the company.

The Insurance Company moved for summary judgment, and the District Court granted the motion, holding that neither policy covered the claims.

he Second Circuit certified four questions to be answered by the Supreme Court of Connecticut. The questions are:

1. In a policy with multiple coverage parts, does a criminal acts exclusion in the Commerical Crime Coverage Form apply to disputes arising under the Commercial General Liability Form?

2. Can an employee's pleas of nolo contendere and the resulting conviction be used to trigger an insurance policy's criminal acts exclusion?

3. When applied to the business of massage therapy, does the term "professional services" include acts ancillary to the business of a massage therapist, e.g., the investigating, training, monitoring, supervising of masseurs?

4. Under the language of the commercial coverage policy, do the negligence claims against the company and its owner arise out of the rendering of professional services when the underlying acts involve physical and sexual assualts during the performance of a message.

The decision was rendered on March 6, 2006 and can be found on the Second Circuit website.

Rule 32.1. Howard Bashman, of How Appealing fame, has written an article on an attempt by opponents of proposed Rule 32.1 of the Federal Rules of Appellate Procedure, which would allow for the citation of "unpublished" opinions, to limit the effect of the rule by making the rule applicable only to such decisions issued after January 1, 2007. His article (on Law.com) can be found here.

To the Majors. Tom Goldstein, who has invented the small firm Supreme Court practice (and is one of the few able to maintain such a firm), is leaving his firm of Goldstein & Howe and heading for Akin, Gump, Strauss, Hauer & Feld. Goldstein & Howe will become Howe & Russell. for more info, check this post. As one in awe of Tom, I wish him the best of luck.

Not Ex Post Facto. The Second Circuit has held that it does not violate the ex post facto clause to apply the holding of United States v. Booker to actions that occurred before Booker was decided. This is one of those cases where the defendant was sentenced to a term longer than he would have been under the Sentencing Guidelines. The decision in United States v. Fairclough can be found at the Second Circuit website. It was decided on February 17, 2006.

Public Trial. The Second Circuit granted a writ of habeas corpus to a criminal defendant whose relatives were order excluded during the testimony of an undercover officer unless they consented to sitting behind a screen. The Court, in Rodriguez v. Miller, held that such a procedure violated Rodriguez's Sixth Amendment right to a public trial. The decision can be found on the Second Circuit website. The case was decided on February 17, 2006.

Certified questions. In Colavito v. New York Organ Donor Network, Inc., the Second Circuit certified certain questions to the New York State Court of Appeals. The questions certified are as follows:

Do the applicable provisions of the New York Public Health Law vest the intended reipient of a directed organ donation with reights that can be vindicated in a provate party's lawsuit sounding in the common law tort of conversion or through a private right of action derived from the Public Health Law?

Does the Public Health Law immunize either negligent or grossly negligent conduct?

If a donee can bring a provate action to enforce the rights referred to in the first question, may the plaintfiff recover nominal or punitive damages without demonstrating pecuniary loss or actual injury?

The decision can be found at the Second Circuit website. The case was decided on February 23, 2006.

Another new blog. My law firm, Cox Padmore Skolnik & Shakarchy LLP is starting a new blog, which will deal with commercial law. The template of the blog already exists, but the content will be appearing shortly, probably some time nex week. Please check it out.

New blog. Well, it's not really new. I've known about it for some time, but for some unknown reason I never added it to my blogroll. Second Circuit Blog is run by members of the Federal Public Defenders office in the Second Circuit. It appears to deal exclusively with Second Circuit criminal cases, though, if I am wrong on that, I hope someone will correct me so that I can correct the error. It is now on my blogroll and I encourage my readers (such as they are) to check it out.

Spanish Isn't Hispanic. New York's definition of "Hispanic" for purposes of certifying minority-owned businesses for possible affirmative action excludes people of Spanish or Portugese descent who do not also come from Latin America. The Second Circuit, in Jana-Rock Construction v. New York State Department of Economic Development held that under rational basis review the distinction passes constitutional muster. The decision, which was rendered on February 21, 2006, can be found at the Second Circuit website.

New Policy. This is my policy, not the Court's. While I will continue to provide summaries of Second Circuit cases, I am going to also post on my general views on the law, appellate practice and other legal matters. I hope that you will continue to find this blog to be interesting and informative. If you have comments, complaints or suggestions, feel free to e-mail me.

Fully retained. In the Western District of New York, they have a practice of asking retained attorneys whether they are "fully retained," i.e., retained for the duration of the case, to avoid mid-trial motions for the appointment of counsel once the defendant's money has run out. This policy was challenged in United States v. Parker, which was decided on February 21, 2006. The Second Circuit held that the policy is proper. The decision can be found at the Second Circuit website.

Constitutional. The Second Circuit has held that the Religious Freedom Restoration Act of 1993 is Constitutional as applied to federal age discrimination law. The case involved a church policy requiring retirement of ministers at age 70. Paul Hankins, a Methodist minister who challenged the policy. In that RFRA had been found unconstitutional as it applied to state law, I'm looking forward to a close reading of the decision to see the Court's reasoning in upholding it as applied to federal law. Stay tuned for a further post. I've noticed that the "link" to Hankins v. Lyght is not working, but you can find a link to it at Findlaw. (If you are reading this post long after February 20, 2006, the link may not be there (it's the recent cases link), but search around and you should be able to find it. The case was decided on February 16, 2006.)

Family planning. It's well known that China has a family planning policy which allows couples to have only one child. Violation of that policy was punished by sterilization. The Chengs claimed that they could not be removed from the United States based on Article III of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Convention prohibits the expulsion of an alien if there are substantial grounds to believe that he or she would be in danger of being subjected to torture. The Chengs claims that the Chinese policy constituted torture. The Immigration Judge rejected their claims for relief from removal and the Board of Immigration Appeals affirmed. The Second Circuit, in Ni v. Board of Immigration Appeals, held that the immigration judge's failure to consider the Chengs' claims constituted reversible error, granted the Chengs' petition and remanded the case for further proceedings. The decision can be found at the Second Circuit website. The case was decided on February 13, 2006.

Changes to Blog Roll. I've noticed that some of the blogs on my blog roll are no longer active. Second Circuit News is long gone. There hasn't been a post on On Appeal in many a moon. The Induce Act Blog has changed it's name to Legislating IP. And the Blawg Channel has fallen apart, and it's mission has been taken over by Between Lawyers. These changes have been made to the blog roll. If you know of any suitable blogs that should be added, don't be shy; let me know.

Help! I used to be able to get direct links to cases through Findlaw. Now when I find a case, I get an adobe document without an URL. The same thing happens at the Second Circuit website. If anyone knows a way to get a direct link, I'd appreciate it. E-mail me at the link on the right.

Diversity Jurisdiction Under the Telephone Consumer Protection Act. The Telephone Consumer Protection Act prohibits the sending of unsolicited junk faxes. The statute provides the state courts with exclusive jurisdiction. But the Second Circuit has held that where there is a basis for diversity jurisdiction, a federal district court can hear the case. The decision in Gottlieb v. Carnival Corp., decided on February 3, 2006, can be found at the Second Circuit website

Partial Birth Abortion Law is Out. The Second Circuit, in National Abortion Federations v. Gonzalez held the the Parial Birth Abortion Ban Act was unconstitutional because it lacked an exception for the protection of a woman's health. Chief Judge Walker concurred in the result, and Judge Straub dissented from the ruling. The decision (by Judge Newman), concurrence and dissent can be found at the Second Circuit website.

Without Prejudice. In Camilli v. Grimes, the Second Circuit held that a District Court properly exercised its discretion in allowing the plaintiff to dismiss her claim without prejudice, even though such an action would prevent the defendant from bringing a malicious prosecution action. The dismissal in this case would only allow the plaintiff to reassert her claims if the defendant brought an action against her. The decision can be found at the Second Circuit website.

From the Second Circuit Website:

12/28/05 - Due to a planned infrastructure upgrade to the Thurgood Marshall United States Courthouse, located at 40 Foley Square, the Law Library will close on Friday February 24, 2006 for the duration of the project. During the pendency of the project, the library collection temporarily will be relocated.
Effective January 3, 2006, Library Hours will be: Monday, Wednesday, Friday, 9:00 am to 12 :00 noon, Tuesday and Thursday, 9:00 am to 4:45 pm. A list of local public access law libraries and Government Documents Depository Libraries is available in the Library.

Martha loses. Well, it was worth a try, especially when you have a lot of money and had already served your sentence. But Martha Stewart lost the appeal of her conviction. The decision can be found here. (You have to click on the link to the United States v. Stewart case.)

Answers to Certified Questions. The Second Circuit had sent two certified questions to the New York State Court of Appeals in Regatos v. North Fork Bank. The questions were:

1. Can the one-year statute of repose established by New York UCC 4-A-505 be varied by agreement? If so are there any minimum limits of the variation thereof (such as "reasonable time") that estop the bank from denying Regatos recovery?

2. In the absence of agreement, deos New York UCC Article 4-A require actual notice, rather than merely constructive notice? If so, can this requirement be altered by agreement of the parties and was such achieved in this case?

The New York State Court of Appeals held that the statute of repose could not be varied by agreement. It further held that actual notice was required by the statute and that this requirement could not be altered by agreement.

In light of these answers, the Second Circuit affirmed the District Court's award of $731,005.48, plus interest, to Regatos.

The decision in this case can be found here.

Another cross-posting. The Second Circuit is on the verge of deciding whether, in considering a challenge to the substantive validity of an individualized education program (IEP) in special education cases, a court may consider retrospective evidence. That issue had not been considered in the administrative proceedings or by the district court, so the Second Circuit remanded the case to the district court to decide that issue. The decision in D.F. v. Ramapo Central School District can be found here. This post will also be posted on my other blog, The FAPE Page, which deals with special education issues.

Class Attorney's Fiduciary Duties. Where a party, who is technically part of a class, but enters an appearance in the class action by his own attorney, he cannot sue the class attorney for breach of fiduciary duty. Because he had his own attorney, he was not represented by the class attorney. The decision in Schick v. Berg can be found here.

Reduced fees. Well, there's one attorney who probably will take a hit in his business now that the decision in In re Goldstein has been released. David Goldstein, for reasons that are not clear, took an inordinate amount time to consummate the settlement of a wrongful death action in which he represented the plaintiff. Different explanations for the delay were given to different parties at different times in the case. At any rate, despite the delay, Goldstein asked for his full contingeny fee. The magistrate judge balked, noting that a number of Goldstein's cases had languished because of his lack of attention and disregard of court orders and that she had previously recommended sanctions against him in another case. The magistrate judge issued a recommendation that Goldstein's fees and expenses be radically reduced. The District Court adopted the recommendation. The Court referred the case to the Grievance Committee for the First Department and for the Eastern District of New York. Goldstein appealed.

The Second Circuit held that the District Court had the authority to reduce his fees and its decision to do so in this case was not an abuse of discretion. The Court stated: "Goldstein's arguments regarding the reduction of his fees demonstrate no error, much less and abuse of discretion. When asked to provide evidence of his disbursements, he did not do so. That failure and the treatment of his client, who had to personally seek the court's aid in forcing Goldstein to complete the settlement, slone justify the reduced award."

The Second Circuit held that it did have jurisdiction to consider an appeal from that part of the District Court's order, referring the matter to the disciplinary committees because the order had reputational consequences and potential costs in responding to the referral. This jurisdiction is limited. The Court may only review in such a case "for prejudicial procedural error, clear error in findings of fact, and abuse of discretion in the sanction imposed." Under the circumstances of the case, the Court affirmed this section of the order as well.

The decision in this case can be found here.

A3G Revealed! Not that it's news anymore, but blogger Article III Groupie of Underneath Their Robes is no longer anonymous and he's a federal prosecutor. And now that it's known that David Lat is the infamous A3G, he has closed down the blog. For more info, click here. This post is not really about the Second Circuit, but I don't want to be the only legal blogger who didn't mention it.

No chill. The Second Circuit has held that a public employee alleging retaliation for having exercised his or her First Amendment rights is not normally required to show that the State's conduct had an actual chilling effect. Morrison v. Johnson can be found here.

Argumentative summations. Samuel Yakobowicz was convicted on four counts of filing false federal excise tax returns on behalf of his company and one count of attempting to impede the administration of internal revenue laws. The district court allwed the parties to make short statements to the jury at the conclusion of every witness. Yakobowicz objected to this procedure on the ground that it was not authorized by the Federal Rule of Criminal Procedure. The government used its "interim summations" to argue and reargue its theory of the case to the jury.

The Second Circuit held that, in the context of criminal proceedings, such interim argumentative summations favored the prosecution, constituting structural error that warranted reversal.

Judge Sotomayer dissented, stating that while the District Court erred by allowing such interim summations, such error was not structural, but was were trial error, subject to harmless error analysis. She felt that the error was harmless.

The decision in United States v. Yakobowicz can be found here.

No recusal. Five years ago, Judge Winter, right before he took senior status, had a conversation with the member of a law firm about whether he would continue to serve on the bench or take senior status. The lawyer told Judge Winter that if he chose to leave the bench, his firm would be interested in discussing the possibility of employing him at his firm. Judge Winter chose to continue on the bench as a senior judge. There were no further conversations on the matter. Now, one of the firms (I suspect that it is Mayer, Brown, Rowe & Maw L.L.P., but I could be wrong.) is appearing in a case before Judge Winter. He has stated that he does not think this conversation five years ago warrants recusal. No kidding.

The decision in In re CBI Holding Co. (Bankruptcy Services, Inc. v. Ernst & Young) can be found at the Second Circuit website. If I find a better site, I will post it.

Congratulations. I know that it's off-topic, but I want to congratulate fellow-blogger Heidi Bond of Letters of Marque, who has just disclosed on her blog that she will be clerking for the Honorable Alex Kozinski of the Ninth Circuit. True, it's not as good as the Second Circuit, but it's still pretty good.

Hague Protocol of 1955. The dispute was simple. A shipper was seeking to recover from an air carrier for loss of goods transported by international air freight. The legal issue, however, turned on something more esoteric -- whether the United States was a party to the Hague Protocol of 1955, which amended tthe Warsaw Convention of 1929. The Warsaw Convention is a multilaateral treaty that regulates, among other things, the liability for international air carriers. The District Court had held that United States has acceded to the Hague Protocol when it ratified Montreal Protocol No. 4 in 1998, but the Second Circuit held that the United States did not become a party to the Hague Protocol until after the Senate consented to the Protocol's ratification on July 31, 2003. The case was remanded to the District Court for further proceedings. The decision in Avero Belgium Insurance v. American Airlines, Inc. can be found on the Second Circuit website. When I get a more direct URL, I will post it.

Motion for costs after remand. A plaintiff sought sanctions and attorneys' fees because a case he had commenced had been improperly removed to federal court. The defendants had agreed to stipulate to remand, but the plaintiff refused to so stipulate. The plaintiff's initial motion to remand had been granted, but its motion for fees and sanctions was denied. The Second Circuit on appeal from the district court's order on fees and sanctions, affirmed the decision of the district court, but made clear that the district court had had jurisdiction to hear the motion. The decision in Bryant v. Britt can be found here.

Late appeal. The Board of Immigration Appeals dismissed an appeal as untimely. The petitioner had sent his notice of appeal by overnight delivery (as recommended by the BIA), but it was not delivered for five days. Had it been delivered on time, it would have been timely. The Second Circuit held that these facts might constitute the "unique and extraordinary circumstances" that would allow the BIA to consider the appeal although it was technically late. The Court vacated the BIA opinion and remanded the case for further proceedings. The decision in Sun v. United States Department of Justice can be found here.

What's the amount. The Second Circuit reversed the denial of a defendant's presentencing motion to withdraw his guilty plea on a criminal drug charge brought under 21 U.S.C. 841(b)(1)(A), which charge requires a finding of a specific quantity of crack. The defendant had not admitted to the quantity of crack involved in the offense. The decision by the Second Circuit in United States v. Gonzalez can be found here.

Non-argument calendar. Commencing October 3, 2005, the Second Circuit will institute a Non-Arguement calendar for all INS cases, involving the denial of an asylum claim. For more information on this procedure, check out the Second Circuit website.

No pretrial restraint. The Second Circuit has decided that 28 U.S.C. 2461(c), part of the Civil Asset Forfeiture Reform Act of 2000, does not authorized pretrial restraint of assets that the government claims are subject to criminal forfeiture. The decision in United States v. Razmilovic can be found here.

No 9/11 Insurance Money for Citigroup. The Second Circuit has affirmed the judgment of the District Court of the Southern District of New York that Citigroup was not entitled to insurance money paid to 7 World Trade Company, L.P. for Citigroup's permanent but removable property at 7 World Trade Center, where Citigroup had rented space. The Court held that because Citigroup's property was explicitly excluded from coverage, it was entitled to no money from the insurance proceeds. The decision (very short) in Citigroup, Inc. v. Industrial Risk Insurers can be found here.

Local call. All it takes is a local telephone call to meet the requirement of a connection to interstate commerce to support a federal conviction. The statute at issue, 18 U.S.C. 1958, requires the use of a facility in interstate commerce. The Second Circuit held that that phrase only means that the facility (which includes means of transportation and communication) is used -- at times -- in interstate commerce, not that the alleged criminal used it in interstate commerce. The circuits appear to be split on this issue. The decision in United States v. Perez can be found at here.

New blog. Well, OK, it's been around since December 2004, but it's new to me. I've just run across the Second Circuit blog, authored by a group of Federal Public Defenders in New York, New York. I haven't done an exhaustive look at the blog, but it seems to be oriented toward criminal law (understandably, given the identities of their authors). Welcome to the blogosphere, gang.

Parents. Under immigration law, someone subject to coercive family planning policies in his or her native land (or that person's spouse) may seek asylum in the United States. The Second Circuit has held that parents or parents-in-law of such persons are not entitled to seek asylum. The decision in Yuan v. United States Department of Justice can be found here.

Dickens. I usually don't report on criminal cases involving sentencing disputes, but being a big Charles Dickens fan, I could not go without providing you with a link to United States v. Brady, a case where Judge Cardamone starts off with a quote from A Tale of Two Cities. Unfortunately for Brady, the sentence she was given by the District Court, along with the giant downward departure, was remanded because the District Court's factual findings were insufficient to justify the departure. The decision can be found here. The worst of times, indeed! (Of course, further factfinding will be performed by the District Court, which may then warrant the departure, so you never know.)

Jury decides. A party who demands that a jury consider a claim for lost wages under Title VII will get a jury where the defendant fails to object. That's what the Second Circuit held in Broadnax v. City of New Haven, a case of first impression. A lost wages award is considered to be an equitable remedy, and equitable claims are generally not decided by juries. However, the Court found, agreeing with other circuits, that a failure to object is equivalent to consent under Rule 39(c) of the Federla Rules of Civil Procedure, which allows jury trials even in cases not triable of right by juries if both parties consent. The decision can be found here.

Amend that notice. If you file a notice of appeal from a judgment and the judgment is later amended after a post-trial motion, you had better file a new notice of appeal if you want to appeal from any of the amendments. The plaintiff in Sorensen v. City of New York learned that rule to her regret -- her appeal was dismissed. The decision in that case can be found here.

BTW, you've probably heard of this case. It's about the Danish woman who left her baby in a carriage in front of a restaurant while she was having lunch inside. Evidently, that's common in Denmark.

Circuit split. The Second Circuit has noted that "[t]here is a circuit split on the question of whether the actual use [of the telephone] by the defendant must be an interstate one" for such acts to be covered by 18 U.S.C. 1958. The District Court had answered that question in the negative, in accord with decisions of the Fifth and Seventh Circuits. The Sixth Circuit has taken the opposite view, as had two district courts in the Second Circuit. The Second Circuit agreed with the Fifth and Seventh Circuits.

In that the Sixth Circuit decision was limited to its facts by a later Sixth Circuit opinion, it is unlikely that this issue is likely to go up to the Supreme Court at this time.

The decision in United States v. Perez can be found here.

Quattrone report. Frank Quattrone's appeal of his obstruction of justice conviction was argued in the Second Circuit. The New York Sun published this report of the argument.

Non-attorney Parent representing Minor Child. The Second Circuit, in Tindall v. Poultney High School District, has seemed to take a looser view on non-attorney parents representing their minor children. While, in this case, the Court did not allow the parent to represent the child, it gave more time for counsel to be retained. It also stated that "the rule that a parent may not represent her child should be applied gingerly." The decision does not set out the exact perameters of the rule, so I guess that is an issue for another day. Judge Kearse concurred in part and dissented in part. Her dissent went straight to the issue of non-attorney parents representing their children. She disagrees with the Court's less stringent view. The decision can be found here.

How odd! The Second Circuit has held that the destruction of trial exhibits, absent a showing of specific prejudice to an appellant's ability to perfect an appeal, does not warrant a new trial. That is not odd. The Second Circuit is in agreement with most other circuits on this point. What is odd that the two circuits that hold differently are the Fifth and the Eleventh Circuits, two fairly conservative circuits. Well, if the Fourth Circuit had joined them, I would have believed that the Messiah has come. To read the Second Circuit's opinion in United States v. Weisser, click here.

Supreme Court nominees. Everyone's talking about who's going to replace Chief Justice Rehnquist (or other aging justices). (It's not as bad as last year when the media decided that there Rehnquist and O'Connor were both quitting and neither did. Serves the media right!) In the past I had thought that a number of Second Circuit judges would be excellent choices. My top had been Senior Judge Jon Newman, although he's now in his 70s. I know Amalya Kearse was Judge Newman's choice -- he did an op ed piece suggesting her appointment during the Bush I presidency -- and she certainly would have been a credible pick and a fine justice. I also like Judge Jose A. Cabranes, although not being from the Federalist school, I doubt he'd even be considered, let alone considered seriously. If a Democrat were in office Guido Calabresi might have been chosen, although because of intemperate remarks about President Bush, his appointment would be fought by the Republicans. But actually, the best pick I could provide to President Bush, if he were inclined to pick a New Yorker, would not be on the Second Circuit, but on the New York State Court of Appeals. Judge Robert Smith would not only be a credit to the High Court, but has the Conservative credentials (Republican, Federalist Society) that he could actually be considered. Here's hoping President Bush looks beyond the short list that has been reported in the media.

Voting Rights of Felons. The Second Circuit, sitting en banc, has heard a case involving the voting rights of prisoners and felons on parole. New York law provides that such individuals are not eligible to vote, but the statute has been challenged under the Voting Rights Act on the ground that that qualification results in the denial to vote because of race. An article on the argument in Muntaqim v. Coombe can be found here. (You may need a password to access it. Sorry.) I will report on further developments.

Unfair settlement. The Government, in the course of criminal proceeding, entered into a settlement agreement with members of the Rigas family. Under the agreement, the Rigases would forfeit certain assets and all victims of their crimes would be discharged. Certain victims protested, claiming that the settlement would foreclose them from getting full restitution in ongoing civil actions, which they claim to be entitled to under the Crime Victims' Rights Act of 2004 ("CVRA"). The Second Circuit noted that, under the Manditory Victim Restitution Act ("MVRA"), victims are not entitled to restitution if there are too many victims or if the factual issues are so complex that determining the cause or the amount of a victim's loss would unduly prolong the sentencing process. In this case, both exceptions to required restitution under the MVRA, were applicable. Also, in light of the complex issues of culpability of the individuals and because of the security ineterest affecting the Rigases assets, the victims could not meet their burden in showing that the Government or the district court had acted unreasonabley in entering into the Settlement Agreeement or approving it. The decision in In re W. R. Huff Asset Management Co. can be found here.

"Excessive" Appeal -- Off Topic. This has nothing to do with the Second Circuit, but the Pennsylvania Superior Court's decision in Jones v. Jones may be of interest to appellate practitioners. The appellant (the wife in a divorce case) has raised 29 issues on appeal and listed them in narrative form in a statement required by Pennsylvania rules. The Court found that such a statement waived the issues on appeal and that the appeal was frivolous. The case was remanded for a hearing on counsel fees. The decision can be found here.

Denial of en banc review. The Court's decision to deny en banc review in Landell v. Sorrell seems to have triggered a debate. That case involved Vermont's radical limits on campaign spending. An article on the case from today's New York Law Journal can be found here. (You may need a password. Sorry.) The various decisions can be found at the Second Circuit website. (I will try to get a better cite.)

New certified questions. The Second Circuit has certified five questions to the New York State Court of Appeals regarding the application to summary judgment of section 388(1) of the New York Vehicle and Traffic Law. The questions are:

1. Under New York law, are uncontradicted statements of the both the owner and the driver of a car that the dirver was operating the vehicle without the owner's permissions sufficient to warrant a court in awarding summary judgment to the owner?

2. If no, can additional circumstantial evidence such as the contemporaneous accident reports submitted by the owner tip the balance and warrant a court in awarding summary judgment despite the interested nature of the sources?

3. If no, is the uncontradicted testimony of the driver and the woner that the driver was operating the vehicle without permission, even if not sufficient for summary judgment, sufficient at a trial to overcome the statutory presumption of permissive use, thereby placing the burden on the plaintiff to prove permissive use at trial?

4. Even if the concontradicted testimony of the dirver and owner that the use of the vehicle was without permission is not by itself enough to rebut the presumption of permissive use, is the addition of such further evidence as contemporaneous accident reports by the ownersufficient to do so, with the result at trial that the burden of proving permissive use will rest on the plaintiff?

5. Is the answer of any of the previous questions affected by the absence of evidence that the defendant (Amtrak) reported the unauthorized use of its vehicle to any law enforcement agency?

The decision in Country Wide Insurance Co. v. National Railroad Passenger Corp. a.k.a. Amtrak can be found here.

Bad character. An non-citizen sought suspension of deportation. However, prior to that she had attempted to obtain asylum and had made false statements in her testimony. The Second Circuit held that such statements could constitute evidence that she was not of good character, which would preclude the relief she sought. The decision in Medina v. Gonzales can be found here.

Prisoner for a Day. Susan Godding was convicted of the embezzlemant of almost $366,000 from her employer, but was sentenced to one day's imprisonment, five years' supervised reliease, with six months in hom confinement, and full restitution. The Government appealed this sentence. The Second Circuit remanded the case to the District Court, noting that the Court would be required to consider, among other things, the need for the sentence imposed "to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense." The decision in United States v. Godding can be found here.

Habeas Proceeding is Civil. Well, it should come as no surprise that a habeas proceeding is a civil action, but the question in Vacchio v. Ashcroft is whether its a civil action within the meaning of the Equal Access to Justice Act, which would allow the plaintiff to recover attorneys' fees. The proceeding at issue was "a petition for a writ of habeas corpus challenging an immigration detention." the Court found that it was a civil action under the Act and that the plaintiff was a prevailing party, but because the Government's position was substantially justified, and that the plaintiff was not entitled to fees. Judge Oakes issued a short dissent. The decision can be found here.

You gotta sign. Sarhank had a contract with one of Oracle Corp.'s subsidiaries. It sought arbitration not only with the subsidiary, but with Oracle itself. Although Sarhank had an arbitration agreement with the subsidiary, Oracle had never signed such an agreement. The arbitrators (under Egyptian law) found that Oracle was bound to arbitrate and rendered an award against both Oracle and the subsidiary. Sarhank sought to enforce the award in America under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The Second Circuit held that it was not bound by the finding of the arbitrators as to whether Oracle was bound by the arbitration clause and found that the award could not be enforced as Oracle had not agreed to arbitrate. The decision can be found here.

I thought this was over. Well, Judge Guido Calabresi's remarks comparing Bush v. Gore to the use of legitimate institutions by fascist leaders is back in the news. The Second Circuit's Judicial Council has determined that the admonition he received for the remark by the chief judge was sufficient punishment. An article on this determination can be found here. This is old news. You'd think the Judicial Council would have something better (or at least more timely) to do.

Certified Question. The New York State Court of Appeals has answered a certified question regarding common law copyright under New York law of sound recordings produced prior to 1972 (at which date sound recordings became subject to statutory copyright). The decision in Capitol Records, Inc. v. Naxos of America, Inc. can be found here. C.E. Petit of Scrivener's Error has some comments on the case here.

New case for the Supremes? Occasionally, I will point out a Second Circuit case that I think might be picked up by the Supremes. The case of Abdul-Malik v. Hawk-Sawyer might be such a case, although procedurally it might not make the cut (if certiorari is even sought). The appeal was dismissed by the Second Circuit on the ground that it was meritless. But that's only Second Circuit precedent. The Court noted that there is a sharp dispute among the circuits and suggested congressional attention.

The question is how to treat prisoners sentenced first in federal and then in state court, and the phenomenon (in some circuits) that neither the state nor the federal court can run those sentences concurrently.

The decision can be found here.

Clarett appeal. The Supreme Court has denied certiorari in the Clarrett case, challenging the eligibility rules of the NFL. For more info, click here.

Cross-post. It's been a while since I've done a cross-post with this blog's sister blog, The FAPE Page, but another Second Circuit case in the area of special education law just came down. The Court, in Murphy v. Arlington Central School District Board of Education, has held that expert fees are compensable as costs under the Individuals with Disabilities Act, but that such fees will not generally be approved unless the application is accompanied by time records contemporaneously maintaned by the person performing the services. The decision can be found here.

Offer of judgment and mootness. Trans Union, L.L.C. issued a credit report about Peter McCauley that was incorrect and prevented him from getting a certain student loan. He had to borrow that money and accrued damages of $240. He sued Trans Union. Trans Union made an offer of judgment for the entire $240 plus court costs, but it was rejected. It moved for summary judgment, claiming that there was no longer any case or controversy between the parties. The District Court noted McCauley, at the time the offer was made, had potentially been entitled to punitive damages, but determined that he was no longer entitled to such damages (presumably because Trans Union was willing to pay) and that if Trans Union repeated its offer, and McCauley declined to accept it, another summary judgment could be made. Trans Union made another offer in the same amount. The offer stated that there was no admission of guilt and that the judgment should be confidential. McCauley rejected it and, upon a second summary judgment, the Court dismissed the case. McCauley appealed the case pro se and won. The Court held that the dismissal made no sense. Trans Union admitted that it owed McCauley $240. It made a conditional offer. McCauley was not obligated to agree to the conditions, but in not doing so, he wound up with nothing even the amount that Trans Union admitted it owed. The Court concluded that the rejected settlement offer did not moot the case so as to warrant judgment in favor of Trans Union. The Court remanded the case to the District Judge for the purpose of entering a default judgment. Both parties had agreed at oral argument that such a solution would satisfactorily resolve the case. The decision in McCauley v. Trans Union, L.L.P. can be found here.

Changing a copyrighted program. That's what Titleserv did to a program created by a former employee who left without signing over his copyrights. He told Titleserv that it could only use the program as is, but that did not stop Titleserv, since modifications were required to make the programs work. The employee sued for breach of copyright, and Titleserv moved for summary judgment, which was granted. On appeal, the Second Circuit affirmed, holding that, under 17 U.S.C. 117, it was entitled to adapt the programs because it was an owner of the programs, the copy was created as an essential step in the utilization of the computer program in conjunction with a machine and the program was ued in no other way. The decision in Krause v. Titleserv, Inc. can be found here.

Judge Frederic Block of the Eastern District of New York has asked the Second Circuit for guidance on a case where blacks were disproportionately excluded from a jury that convicted a man of three robberies. An article on this case (Anderson v. Superintendent) can be found in today's New York Law Journal. You may need a password to get the article. The decision can be found here.

Finality of Criminal Judgment. In Moshier v. United States, the Second Circuit held that a criminal judgment was final for purposes of the Anti-Terrorism and Effective Death Penalty Act of 1996 when the time for filing a direct appeal expires. The decision can be found here.

Supreme Court bound? I couple of posts ago, I blogged on the case of United States v. Doe. See that post for the details (or check the decision for the full details). I should note that, according to footnote 4 thereof, the decision is in conflict with a Seventh Circuit decsion and in sharp tension with decisions of the Eighth and D.C. Circuits. The Court stated: "We are mindful that uniformity among the circuits fosters predictability in the invocation of the privilege and supresses forum shopping. We are in no position, however, to resolve this tension in the law." Could this case be heading to the Supreme Court?

The Relitigation Exception. Woolsely had given up his parental rights to his child, and then changed his mind. The Texas Court had ruled in favor of the adoptive parents and against Woolsey. Woolsely had brought an action in the District Court of the Western District of Pennsylvania, seeking a declaratory judgment that his parental rights had been invalidly terminated and an order setting aside the adoption decree entered by the Texas court. The District Court dismissed the action as time barred. Woolsley later brought an action in a Connecticut court, seeking visitation rights and contending that the Texas decree was void. The Smiths, the adoptive parents, brought an action in federal courts, seeking damages for this vexatious litigation and for intentional infliction of emotional distress and sought an injunction to prevent Woolsley from further attempts to challenge the Texas decree. The District Court granted the injunction.

The Anti-Injunction Act generally prohibits federal courts from enjoining state court proceedings. There is a relitigation exception, which provides authority to federal courts to issue an injunction to protect its judgments from further litigation in state courts. In Smith v. Woosley, the Second Circuit stated that "the purposes of the relitigation exception -- precluding relitigation in state courts of issues determined by a federal court -- appears to be better served by allowing a district court that has subject matter and personal jurisdiction to issue an injunction that protects the judgment of another federal court than by forcing the litigants to a likely inconvenient forum for an identical result." The Court further noted that if one were to limit the relitigatiojn exception to courts that had entered the judgment rather than other federal courts, such a limitation on the exception would be one of venue, not subject matter jurisdiction. That objection had been waived by Woolsley's failure to object. The Court also asserted that the equities favored granting the injunction to the Smiths.

The last question was whether the Pennsylvania judgment was entitled to protection. The Pennsylvania court never reached the merits of the case, but dismissed the case on statute of limitatons grounds. In that the judgment left Woolsley with no forum to bring his claim (as the statute of limitations had appeared to have passed in all relevant jurisdictions), the relitigation exception applied. The Court, however, modified the injunction to allow Woolsley to bring an action in a forum whose statute of limitations had not paseed in which personal jurisdiction could be obtained over the Smiths and where he would otherwise be entitled to challenge the Texas decree. In other words, Woolsely lost.

The decision can be found here.

Is something going on? I've noticed that Findlaw has not been updating its Second Circuit opinions since mid-February. And ever since the Second Circuit News blog disappeared (for no reason that I can find), the only place to find Second Circuit opinions is on the Second Circuit website. That would be OK, except that when you link to an opinion, you don't seem to get the URL for the opinion. The address, at least on my computer, remains the general Second Circuit website URL. If anyone knows another way to get cites to Second Circuit opinions, please let me know.

Governmental attorney-client privilege. A federal grand jury subpoenaed the testimony of Anne C. George, the former chief legal counsel to the Office of the Governor of Connecticut. The investigation regarded possible criminal violations by Connecticut public officials and employees and by private parties with whom the state had done business. The grand jury was seeking to obtain testimony about the contents of confidential communications between Ms. George and the governor and members of his staff. The district court entered an order compelling Ms. George to testify, holding that in that the testimony was necessary to the grand jury, the governmental attorney-client privilege must yield because the interests served by the grand jury's fact-finding process outweigh the interest served by the privilege. The Second Circuit reverse, holding that the attorney-client privilege applied and refused to fashion a balancing test or otherwise establish a rule whereby a generalized asserton of privilege must yield to the demonstrated, specific need for evidence. The decision in United States v. Doe can be found at the Second Circuit website. I will try to get you a better site at a later date.

Here's an interesting article on the Second Circuit's reaction to the Supreme Court's sentencing guideline cases.

Off-topic, but interesting. Justice Doris Ling-Cohan has issued an order, holding that a provision of New York law, forbidding same-sex marriage is unconstitutional under the New York constitution, although the effect of the order is stayed for 30 days so that New York City can appeal, which it will. A copy of the decision can be found here. It's not about the Second Circuit, but it's darn interesting. (And it's 62 pages!)

No appeal from a magistrate judge's order. Mathew J. Harrison pleaded guilty of conspiring to distribut marajuana. After the plea, the district judge assigned him counsel and released him on $5,000 bond with certain conditions of release. Harrison broke these conditions on several occasions. Because of these violations, the magistrate judge revoked his bail. Harrison made three separate motions for reconsideration to the magistrate judge, which were denied. Harrison filed a notice of appeal from the magistrate judge's detention order. The Court noted that a magistrate judge's ruling on bail is not final and cannot be appealed to the Court of Appeals because it is subject to review by the district court. Hence, the Second Circuit lacked jurisdiction to hear the case and dismissed the appeal. The case in United States v. Harrison can be found here. What surprises me is that Harrison's attorney did not seem to know that he should have seen review from the district court first.

New rule. The Second Circuit is putting out a new rule requiring the filing of briefs in PDF form. For more information on the proposed rule, which will not be effective until after a public comment period, click here.

Rescission Statute. An insured brought an action against its insurer, challenging the latter's rescission of her disability insurance policy within the six-year limitations period. The District Court dismissed the case based on a provision that provided that an insured could only bring an acton within three years on legal challenged to denied proofs of claim. The Second Circuit held that this provision had no applicability in this case. Terry v. Unum Life Insurance Co. can be found here.

Habitual residence. When one parent kidnaps a child from one country to another, the non-kidnapping party can get the child back to the child's "habitual residence" to decide all child custody issues by invoking the Hague Convention on the Civil Aspects of International Child Abduction, providing the relevant countries are parties to the treaty. In order to invoke the treaty, it must be shown the location of the habitual residence of the child. This term is not decided in the treaty, and in Gitter v. Gitter, the Second Circuit provided the factors that must be considered in making such a decision. First, the intent of the parents must be considered. However, that is not dispositive. The Court must also look to evidence that unequivocally points to the child having acclimatized to another country. The District Court had decided that the United States, not Israel was the habitual residence of the child based on the first factor, but did not consider the second factor. Based on that, the Second Circuit remanded the case for reconsideration by the District Court. The decision can be found here.

Correction. A few days ago, I noted that the On Appeal blog was the same as the Appellate Law and Practice blog. I got two e-mails informing me that I was wrong. The Appellate Law and Practice blog can be found here. It's nice to know that someone is reading.

Crawford Not retroactive. The New York Law Journal has written an article on the retoractivity of the Crawford case. The article can be found here (and I don't think you have to be a subscriber).

New blog. Check out John Derrick's new blog on appellate practice, On Appeal. You can find it here. Enjoy it!

UPDATE: I see that it is actually an update of the Appellate Law and Practice blog that has been listed for a few months on my bloglist and has moved off of blogspot. I'll make the change on my bloglist. You can still enjoy it.

Breach of Duty of Good Faith and Fair Dealing -- Not enough. Sterling National Bank breached its duty of good faith and fair dealing to National Market Share, Inc. by failing to honor approximately $800,000 in payroll checks. However, it was National Market's Share's faithless principal who had caused the company to go out of business. Hence, the bank was only ordered to pay nominal damages of $1. The Second Circuit affirmed. The decision in National Market Share, Inc. v. Sterling National Bank can be found here.

Forfeiture. Barbara Pacheco purchased certain real property that the government was trying to forfeit from a criminal defendant. Pacheco knew about this in that a notice of pendency was filed long before she bought it. However, because the criminal defendant's wife had an interest in the property, Pacheco's purchase may be valid as to her purchase of the wife's interest -- or, at least, the Second Circuit, on its appeal from a motion to dismiss, did not find otherwise. The decision in United States v. Serendensky can be found here.

Split. The Second and the Seventh Circuits are split over the degree to which a felony law on company disclosures shields them from shareholder suits. There is an article on this in today's New York Law Jouranal on this issue. This may not be available to non-subscribers. Sorry.

New en banc case. Here is the order of the Second Circuit relating to the new en banc case, Muntaqim v. Coombe. Oral argument will be heard on April 7, 2005. For anyone interested in the original opinion, see here.

Definition of "Wilful" Under the Family and Medical Leave Act of 1993. The Second Circuit, in accordance with a decision of the First Circuit, has held that the definition of "wilful" under the Fair Labor Standards Act should be used under the Family and Medical Leave Act of 1993 as well. The Supreme Court has held that an employer acts willfully under the Fair Labor Standards Act when he or she "knew or showed reckless disregard for the matter of whether it sondcut was prohibited by the [FLSA]." "If an employer acts reasonably in determining its legal obligation, its action cannot be deemed willful . . . . If an employer acts unreasonably, but not recklessly, in determinining its legal obligation, then . . . it should not be . . . considered [willful.]"
Under the context of the Family and Medical Leave Act, this issue is pertinent to the extent of a statute of limitation. The case in Carlton v. New York University School of Law can be found here.

Certified Question. The Second Circuit has certified the following questions to the Supreme Court of Connecticut:

What is the correct interpretation of "chronic" disabilities under the Connecticut Fair Employment Practices Act (the "Act")?

At what point, in relation to the act of discrimination complained of, must a disability qualify as "chronic" to support recovery under the Act?

If the Act applies only to disabilities that are "chronic" at the timie of the alleged act of discrimination, is evidence of the progression of an illness or injury after the alleged act of discrimination probative of whether that disability was in fact "chronic" when the alleged act of discrimination occurred?

The case involved a worker who was laid off and claimed that he was the victim of discrimination under the Act and the Americans with Disabilities Act.

The decision in Caruso v. Siemens Business Communication Systems, Inc. can be found here.

Deadbeat Mom. Joanne Venturella, divorced from James Ferretti, who was awarded custody of the couple's two children, was ordered to pay child support in the amount of $450 every two weeks. She refused to do so. To prevent her pay from being garnished, she left her job and moved to Florida, where she worked as a tutor at a private school.

But her day of reckoning came. She was indicted, under 19 U.S.C. 228, which provides that a person who owes over $10,000 in child support obligations with respect to children who reside in another state. The primary issue at trial was whether Venturella "resided" in Florida. She claimed that the definition of "residence" should be the same as "domicile," which would require a showing that she intended to permanently live in Florida with no intent of returning to New York. The Government claimed that "residence" should be defined as her principal, actual dwelling place, which, it contended, was Florida.

The District Court adopted the Government's position over Venturella's objection. She was found guilty and was sentenced to 15 months' imprisonment, followed by one year of supervised release and a special assessment of $100 and ordered restitution of $59,073.06.

Venturella appealed, and the Second Circuit affirmed. It held that to require an intent to remain as part of the definition of "resides" could lead to absurd results. It also noted that such a definition was at odds with the focus of the statute -- to offer federal criminal penalties against parents who willfully fail to honor their child support obligation and live in another state.

The Second Circuit rejected her position that the legislative history supported the position that residence within the meaning of the statute meant domicile. On the contrary, it held that the legislative history supported the Government's position.

The Court also rejected Venturella's arguments that the District Court's failure to hold the statute unconstitutionally vague and that the District Court's failure to instruct the jury on a dual residence defense were plain error. (Neither issue was raised before the District Court.) Finally, it dismissed the appeal as to her ineffectiveness of counsel claim in that its regular practice was not to hear such arguments on direct appeal.

The decision in United States v. Venturella can be found here.

No New Life to Barred Claims. The question in In re Enterprise Mortgage Acceptance Co., LLC Securities Litigation (really three unconsolidated appeals heard together) is whether section 804 of the Sarbanes-Oxley Act revived previously expired securities claims. The Second Circuit has held that previously time barred claims are not revived pursuant to that section.

In each of the cases, the plaintiffs had initiated actions for securites fradu prior to the passage of the Act. Then, after the Act was enacted, one plaintiff added additional claims and another added an additional defendant, trying to take advantage of the Act's extended statute of limitations.

The Court noted that normally statutes are not given retroactive effect. If the statute does not clearly provide that Congress intended it to be applied retroactively, then the statute will not be given retroactive effect if giving such retroactive effect would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed.

The Court concluded that Congress did not clearly give the statute retroactive effect. Further, the Court held that reviving time-barred claims has an impermissible retroactive effect by stripping defendants of an affirmative defense.

The decision can be found here.

Statutory Interpretation Saves the Day! An 18-year old was about to be sent up the river for 10 years advertising to distribute or receive child pornography, but the Second Circuit, through a tour-de-force of statutory interpretation vacated the sentence and remanded to the District Court. You can read the decision in United States v. Pabon-Cruz here.

Rule changes. Several Second Circuit Local Rules have been amended. See here for details.

Pro bono. Here is the Second Circuit's Plan for the Appointment of Pro Bono Counsel.