Talking with Counsel. The Second Circuit held that an order by the District Court, later rescinded, which prohibited a criminal defendant from speaking with his counsel after the first day of his cross-examination, did not violate the defendant's criminal rights under the circumstances of the case. In addition to rescinding the order, the Court had adjourned the case the next morning to allow the attorney to speak with his client. The attorney, however, took the position that the remedy was insufficient to cure the constitutional violation of not allowing him to speak with his client immediately after the day's testimony. The Second Circuit disagreed.

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

Update: Andrews will be seeking rehearing en banc, and, if that fails, review by the Supreme Court. Personally, I would not bet the farm on obtaining cert. or even a rehearing by the Second Circuit, but time will tell.

What's a picture worth? The plaintiff in Grace v. Corbis-Sygma, a photographer sued his agents and bailees for losing a large number of his pictures. After winning a six-figure amount after a bench trial, the plaintiff appealed, claiming that the award was not high enough. On appeal, the Second Circuit vacated the award and remanded the case to the District Court for a new assessment of damgages.

The decision can be found here.

Recusal. The Second Circuit overturned the conviction of two men conicted of a series of financial crimes based on the refusal of the district judge to recuse himself. The Court made clear that it was dealing only with the appearance of impartiality and noted that there was nothing suggesting that the district judge had acted improperly.

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

No protest. The Second Circuit denied a motion to stay an order, denying a request for a preliminary injunction, requiring West Point to allow a demonstration on its grounds during graduation, where Vice President Cheney is to speak.

The decision in Sussman v. Crawford can be found here.

Converting a Kidney. I previously blogged on Colavito v. New York Organ Donor Network here. The Second Circuit had certified a question as to whether the intended recipient of an organ donation could bring a private cause of action for common law conversion or under the New York Public Health Law if he does not receive the organ.

The Court of Appeals held that the intended recipient of a donated organ might have a common law right to it under New Yok law, no such right exists for the specivied donee of an incompatible kidney. Also, under the Public Health Law, a party would only have a cause of action if he could benefit from the kidney. The kidney at issue was not compatible with Colavito. The decision of the New York State Court of Appeals can be found here. The Second Circuit granted summary judgment to the defendant

The Second Circuit's decision can be found here.

Procedural Hurdle. A convicted burglar sought habeas relief, challenging identity evidence that was admitted against him at trial. The petition had been denied by the District Court on the merits, but the Second Circuit, in affirming the decision of the District Court, did not reach the merits, holding that review was barred by independent and adequate state law grounds. The criminal defendant had not raised the issue at trial, barring him from raising it on appeal or in a habeas proceeding.

Judge Straub dissented, arguing that the criminal defendant had adequately raised the issue at trial and that the trial court had rendered a decision on the issue. Having set aside the procedural bar, Judge Straub found that the New York Appellate Division had unreasonably applied clearly established Supreme Court law relating to the issue. He would have granted the relief sought.

The decision in Garvey v. Duncan can be found here.

Feldman's to the right of me, Feldmans to the left of me. This is a non-substantive post. I just thought it amusing that both the criminal defendant and the United States were represented by Steven Feldman. Not the same Steven Feldman, of course, but still . . .

It's a sentencing case, and I'll give you the link to United States v. Ubiera, so that you can find out more.

Federal Jurisdiction. An interesting question of federal jurisdiction arose in a recent Second Circuit case. A student's IEP (individualized education program) provided that the student was entitled to a 1:1 paraprofessional, but only at the public school. The student attended a parochial school, and the parents asked for a due process hearing, seeking to have the services of the paraprofessional be provided to him at his private school. The hearing officer ruled in favor of the parents. The school district appealed to the New York Education Department's State Review Officer, who agreed with the hearing officer, except held that there was no obligation to provide the paraprofessional under IDEA (the Individuals with Disabilities Education Act). He did, however, find such an obligation under the New York State Education Law. The school district filed an action in the federal court, challenging the determination of the State Review Officer. The District Court upheld the decision of State Review Officer.

On appeal, the Second Circuit held that because there was no right to the relief under federal law, the Court lacked jurisdiction. Even if IDEA incorporates certain state standards relevant to this case (an issue not decided), this does not provide an independent federal question that would sustain a federal court's jurisdiction. Nor does the provision of IDEA that allows an aggrieved party from an administrative decision in a special education action to bring an action in federal court, allow such a party to bring an action where there was no federal question. To hold that the court had jurisdiction in such a circumstance would allow jurisdiction insonsistent with Article III. The Court decided that the case should be brought in state court and dismissed the action.

The decision in Bay Shore Union Free School District v. Kain can be found here.

Answer to Certified Question. In Highland Capital Management L.P. v. Schneider, the Second Circuit had certified the question of whether certain promissory notes issued by McNaughton Apparel Group Inc. to the Schneiders fall within the definition of a "security" as contemplated by UCC 8-102(15) to the New York Court of Appeals. The New York Court of Appeals held the promissory notes were securities under the UCC. In light of this ruling, the Court remanded the case to the District Court, which had held that the notes were not securities, for reconsideration of certain claims. In addition, the Court reversed the dismissal of one claim on which the District Court had held that the Statute of Frauds limited the damages, rendering the claim below the jurisdictional requirement of the Court. In light of the fact that the notes were securities, the Statute of Frauds limitation did not apply and the count was reinstated.

The decision in this case can be found here.

Lodestar. In determining attorneys' fee awards under the Voting Rights Act, while "the court should generally use the prevailing hourly rate in the district where it sits to calculate what has been called the 'lodestone' -- what we think is more aptly termed the 'presumptively reasonable fee' -- the district court may adjust this base hourly rate to account for a plaintiff's reasonable decision to retain out-of-district counsel, just as it may adjust the base hourly rate to account for other case-specific variables." The district court, in deciding a lodestar rate, should decide what a reasonable paying client would be willing to pay. In making that finding, the Court should consider the complexity and difficulty of the case, the available expertise and capacity of the client's other counsel (if any), the resources required to prosecute the case effectively (taking account of the resources being marshaled on the other side but not endorsing scorched earth tactics), the timeing demands of the case, whether the attorney had an interest (independent of that of his client) in acheiving the ends of the litigation or initiated the representative himself, whether the attorney was initially acting pro bono (such that a client might be aware that the attonrey expected low or non-existent remuneration), and other returns (such as reputation, etc.) the attorney expected from the representation.

The decision in Arbor Hill Concerned Citizens Neighborhood Association v. County of Albany can be found here.

Fifty Dollars Based on certain contractual limitations of liability, the district court held that the most that the plaintiff could recover against the two defendants was $50 against each. The Court suggested that each defendant tender $50 to the plaintiff, without conceding liability. When they did, the Court entered judgment in favor of the plaintiff in the amount of $5 from each defendant, and dismissed the action as moot and for lack of subject matter jurisdiction.

While the Second Circuit, on appeal, held that the District Court had been correct in determining the extent of liability, it held that the District Court was wrong in dismissing the action as moot and for lack of subject matter jurisdiction. Had the defendants paid the plaintiff the entire amount of its claim, then the case would be moot, but in that it only paid the amount that the District Court held was owed, the case was not moot. At any rate, since the judgment entered was final, the plaintiff could appeal.

The decision in ABN Amro Verzekeringen BV v. Geologistics Americas, Inc. can be found here.

Direct Appeal. In general, when a party wants to appeal from a decision of a bankruptcy court, the appeal is made to the district court in the first instance. One can, however, appeal directly to the Court of Appeals if you meet the criteria of 28 U.S.C. 158(d)(2)(A). That provision allows a direct appeal if the bankruptcy court certifies that either "(i) the judgment, order, or decree involves a question of law as to which there is no controlling decision . . . or involves a matter of public importance; (ii) the judgment, order, or decree involves a question of law requiring resolution of conflicting decisions; or (ii) an immediate appeal from the judgment, order, or decree may materially advance the progress of the case." In such cases, the Court of Appeals has discretion to hear the appeal.

In Webber v. United States Trustee, a creditor sought to take a direct appeal to the Second Circuit to address the issue of whether the increase in the homestead exemption should be applied retroactively. The Second Circuit declined to hear the appeal, stating that there was not a conflict in the decisions and there was no reason to believe that resolution of the issue would result in a more rapid resolution of the case.

The decision can be found here.

Not shocked. The Second Circuit has held that workers who performed search, rescue and cleanup services at the World Trade Center after the terrorist attacks cannot sue government officials who issued reassuring and knowingly false statements about the air quality in lower Manhattan. In affirming the dismissal of the action, the Second Circuit held that the defendants actions did not shock its conscience even if the defendants acted with deliberate indiference. "When agency officials decide how to reconcile competing governmental obligations in the face of a disaster, only an intent to cause harm arbitrarily can shock the conscience in a way that justifies constitutional liability." Too bad for the poor workers, I guess. (For the record, the panel was Chief Judge Jacobs and Judges Sack and Raggi.

The decision in Lombardi v. Whitman can be found here.

Inherent authority. The Second Circuit has held that it has the inherent authority to admit to bail movants, who are seeking bail pending the court's consideration of their petition for review of a BIA order.

The decision in Elkimya v. Department of Homeland Security can be found here. Unfortunately for Elkimya, although the court held it had the inherent authority, it chose not to exercise its authority in his favor.

Another certified question. The Second Circuit has certified another question to the New York State Court of Appeals:

Is an open space restriction imposed by a subdivision plat under New York Town Law 276 enforceable against a subsequent purchaser, and under what circumstances?

The Second Circuit has stated that it has many times greatly benefitted from the guidance of the New York State Court of Appeals. Sure it's dictum, but it's nice to know.

The decision in O'Mara v. Town of Wappinger can be found here.

Trolls. There's a big fight between a Danish company and an American company over who has the rights to manufacture those cute/ugly little troll dolls. So far the Danes are winning.

A Dane by the name of Thomas Dam created the dolls and obtained a copyright in Denmark. He also got a copyright in America, which was invalidated because certain dolls of this type had been sold in America prior to Dam's copyright, and the design fell into the public domain.

After Dam died, his heirs granted the exclusive right to make the dools to Trolls Co., a Danish company.

Congress enacted 104A of the Copyright Act, which put America into compliance with the Berne Convention, having the effect, among other things, of restoring Dam's copyright. Trolls Co. applied for and was granted a registration certificate in 2000.

Uneeda Doll Co. had been manufacturing trolls under a license from Dam's company since the 1960s. Uneeda had told Trolls Co. that it had no intention of manufacturing trolls. However, Trolls Co. found out that Uneeda was about to do so just at the time that Trolls Co. was about to relaunch the dolls. Trolls Co. told Uneeda that its dolls were infringing Trolls Co.'s copyright.

Trolls Co. sued and obtained an injunction. The Second Circuit has affirmed. The decision in Trolls Co. v. Uneeda Doll Co. can be found here.

Great news. I just got back to the office after Passover and find the terrific news that Catherine O'Hagan Wolfe, formerly clerk of court for the New York Appellate Division, First Department, has been named the new clerk of court for the Second Circuit. As anyone who practices appellate law in New York knows, Ms. Wolfe is a great choice. My only question is what is going to happen to the First Department?

First issue on the plate -- on-line filing. It's coming.

Covered Security. The Securities Litigation Uniform Standards Act precludes the maintenance -- in state or federal court -- of class actions alleging state law violations but premised on deception "in connection with the purchase or sale of a covered security." A covered security is a security listed on one of the national securities exchanges or issued by investment companies registered by the SEC. The question that came before the Second Circuit is whether a document that was not a covered security became a covered security because it was attached to a document that was a covered security. The district court held that it became a covered security. On appeal, the Second Circuit held that it did not and vacated the District Court's order with orders to remand the case to the New York County Supreme Court.

The decision in Ring v. AXA Investment, Inc. can be found here.

DNA and the Fourth. The Second Circuit has held that requiring felons convicted of nonviolent crimes and sentenced to probation to supply a sample of their DNA for analysis and storage in a federal database does not violate the Fourth Amendment.

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

Another answer. The New York Court of Appeals has answered another question certified to it by the Second Circuit. The question was whether statements made by an employer on an NASD employee termination notice are subject to an absolute or qualifed privilege in a defamation action. The Court determined that such statements are subject to an absolute privilege.

The Court of Appeals' decision in Rosenberg v. Metlife, Inc. can be found here.