Significant romantic relationship. The Second Circuit vacated a condition of supervise release that required the defendant to inform the Probation Department if he entered into a significant romantic relationship and to inform the other party in the relationship of his conviction for possession of child pornography. The Court held that the condition was too vague and not reasonably related to sentencing objectives in that there was nothing in the record suggesting that he had been a threat to a romantic partner. The Court also found that the condition effected an unnecessary deprivation of liberty.

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

Qualified Immunity. While caseworkers who allegedly wrongfully remove a child from his home are not entitled to absolute immunity for their actions, the Second Circuit has asserted that they are entitled to qualified immunity, and upheld the ruling of a District Court (while disagreeing with it on the absolute immunity issue), dismissing an action for wrongul removal of a child.

The decision in Cornejo v. Bell can be found here.

Electronic Filing Cometh. From the Second Circuit website relating to electronic filing in the Second Circuit can be found here.

Blurring. A coffee company got sued by Starbucks when it marketed a dark roasted blend that it called Charbucks Blend (and later Mr. Charbucks). The District Court dismissed Starbuck's action, holding that there was no dilution of Starbuck's trademark or likelihood of dilution and no likelihood that consumers would confuse the dark roasted blend with Starbucks. The Second Circuit reversed in part, and remanded the case to the District Court for a determination as to whether the use of Charbucks Blend and Mr. Charbucks would dilute Starbuck's trademark by "blurring" or tarnishment.

The decision in Starbucks Corporation v. Wolfe's Bourough Coffee, Inc. can be found here.

Not defamatory. The Second Circuit has held that a news report that a prisoner planned to cooperate with prosecutors was not defematory. Cooperating with law enforcement is not a bad thing.

The deciison in Michtavi v. New York Daily News can be found here.

Lynne Stewart is screwed. Lynne Stewart, attorney for radicals and terrorists (allegedly), is now in deep trouble. The Second Circuit has affirmed her conviction and has even suggested that the District Court may have been too lenient. It probably didn't help that she stated that she could do the two-and-a-half-year sentence "standing on her head." For a smart lawyer, she sure didn't handle herself well post-conviction. In my view, she might have expressed her gratitude to the District Court for its lenient sentence (the prosecution had asked for thirty years) and done in her time. If she had done so, she would have completed her sentence by now and could be working on getting reinstated to the bar. That' s not going to happen now.

The Second Circuit's decision in United States v. Stewart can be found here.

Cautionary Tale. Not from the Second Circuit, but of interest to appellate practitioners is the decision in Espitia v. Fouche. The Wisconsin Court of Appeal sanctioned a litigant for an citation error.

The decision in the case can be found here. The relevant portion of the decision is in paragraph 5.

Aiding and Abetting Alien Torts. The Second Circuit has set a high bar for foreign plaintiffs attempting to use U.S. courts to hold foreign defendants accountable for aiding and abetting human rights violations in foreign lands. Such a defendant may only be found liable if he or she "purposefully" aided and abetted a violation of international law. Knowledge alone is not enough.

The decision in The Presbyterian Church of Sudan v. Talisman Energy, Inc. can be found here.

Global warming. The Second Circuit reinstated lawsuits brought by New York State and others who challenged major utilities on carbon dioxide emissions from coal-burning power plants, holding that there was no need for the District Court to defer to the political branches and refrain from hearing the suit until there is a definitive policy statement on global warming from Congress and the President.

The decision in State of Connecticut v. American Electric Power Co. can be found here.

Superior respondeat (or something). The Second Circuit has held that an employer may be held liable for discrimination by third parties, including independent contractors authorized by the employer to make hiring decisions on its behalf.

The decision in Halpert v. Manhattan Apartments Inc. can be found here.

Internet radio. The Second Circuit is the first appellate court to determine whether a webcasting service that provides users with individualized internet radio stations, the content of which can be affected by the users ratings of songs, artists and albums, is an interactive service under 17 U.S.C 114(j)(7). If it were an interactive service, the webcasting service would be required to pay individual license fees to the copyright holders of the sound recordings of songs the webcasting service pays for its users. If it is not, it must only pay a statutory licensing fee set by the Copyright Royalty Board. The Court held that it was not an interactive service.

The decision in Arista Records, LLC. v. Launch Media, Inc. can be found here.

Another certified question. The Second Circuit, in Zakrzewska v. New School, certified the following question to the New York State Court of Appeals:

Does the affirmative defense to employer liability articulated in Faragher v. City of Boca Raton and Burlington Industries v. Ellerth apply to sexual harassment and retaliation claims under section 8-107 of the New York City Administrative Code.

The Supreme Court in those cases provided that an employer would not be liable under Title VII for sexual harassment by a supervisor if the employer can prove that (1) no tangible employment action, such as discharge, demotion or undesireable reassignmentwas taken as part of the alleged harassment, (2) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior and (3) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

The decision can be found here. When the Court of Appeals acts, it will be reported.

Admission to U.S. Denied. Tariq Ramadan was denied admission into the United States because he had made a donation to a charity that had supplied funds to Hamas and that such contributions were "material support" to a terrorist organization (the charity). The Second Circuit vacated and remanded the decision of the District Court, holding that the record was not clear whether the consular officer had confronted Ramadan with the allegations against him and afford him the opportunity to prove by clear and convincing evidence that he did not know (and reasonabley should not have known) that the recipient of his contributions was a terrorist organization.

The decision in American Academy of Religion v. Napolitano can be found here.

Regular Seller. The plaintiff who was injured by a machine sought to sue the company that sold it to him under a theory of strict liability. In order for the seller, who had sold the machine, second hand, to be liable, he would have to be a regular seller. The defendant argued that it was only a casual or occassional seller of such machines, and the district court, agreeing, dismissed the action. The Second Circuit certified the question of whether the defendant was a regular seller of the machine to the New York Court of Appeals. The Court of Appeals held that the defendant was not a regular user and, based on that holding, the Second Circuit affirmed the decision of the District Court, dismissing the action.

The decision in Jaramillo v. Weyerhawuser Company can be found here.

Certified Question. The Second Circuit has certified two questions to the New York State Court of Appeals:

1. Where a worker who is serving as a counterweight on a makeshift pulley is dragged into a pulley mechanism after a heavy object on the other side of a pulley repidly descends a small set of stairs, causing an injury to plainitiff's hand, is the injury (a) an "elevation related injury," and (b) directly caused by the effect of gravity, such that section 240(1) of New York's Labor Law applies?

2. If an injury stems from neither a falling worker nor a falling object that strikes a plaintiff, does liabiity exist under section 240(1) of New York's Labor Law?

The decision in Runner v. New York Stock Exchange can be found here.

Answer to Certified Question. The Second Circuit had certified a question to the New York State Court of Appeal. The question, as modified by the Court of Appeals asked whether, under New York law, a non-custodial parent retains decision-making authority pertaining to the education of his child where (1) the custodial parent is granted exclusive custody of the child and (2) the divorce decree is silent as to the right to control such decisions. The District Court had dismissed the action, holding that the non-custodial parent lacked standing to challenge decisions made as to the special education of his child. The New York State Court of Appeals answered the question in the negative, and the Second Circuit affirmed the decision of the District Court.

The decision in Fuentes v. Board of Education of the City of New York can be found here.

Sanctions. The Second Circuit has said, "Enough is enough" to plaintiff Bernard P. Gollomp and his attorney, James Morgan, who have been litigating a case in various permutations for eleven years. In Gollomp v. Spitzer upheld an award of sanctions against the plaintiff and his attorney for their repeated "frivolous and vexatious" claims against the state.

The decision can be found here.

Forum Selection Clause. A forum selection clause in the contract at issue in Yakin v. Tyler Hill Corp. provided for litigation in Nassau County. At the time the contract was executed, there was a federal court in Nassau County as well as a state court. By the time a dispute arose, however, the federal court has moved to Suffolk County. The plaintiff brought the case in Nassau Supreme Court, and the defendant removed it to the federal court. The plaintiff moved to remand based on the forum selection clause, and the District Court granted the motion. The defendant appealed.

The Second Circuit found that the forum selection court was not ambiguous, and that it set venue in Nassau County, not in a court whose jurisdiction covered Nassau County.

Careful how you draft those forum selection clauses.

The decision in this case can be found here.

Abuse of discretion. The Second Circuit has held that abuse of discretion is the appropriate standard of review to apply to a district court's ruling on a motion to reduce a sentence, pursuant to 18 U.S.C. 3582(c)(2).

The decision in Unites States v. Borden can be found here.

Googled. The Second Circuit has ruled that Google must face a trademark infringement lawsuit for selling keywords that trigger ads. The decision in Rescuecom v. Google can be found here.

New Judge. President Obama has nominated District Judge Gerard Lynch of the Southern Distirct of New York for a seat on the Second Circuit.

No bail. Bernard Madoff will remain in prison pending sentencing. The Second Circuit summary opinion, affirming District Judge Denny Chin's order can be found here.

Where's Heidi? A few years ago, I had adopted a law student blogger, Heidi Bond. She went on to clerk for Judge Alex Kozinski in the Ninth Circuit and Justice Sandra Day O'Connor on the Supreme Court (OK, Justice O'Connor was retired by that time, but working for a retired justice still means that you are working on important Supreme Court matters.) But I do not know what has happened to Heidi since. Is she working for a prestigious law firm? Is she with the DOJ? Has she given up law altogether? So I'm throwing it out to the blogosphere -- Where is Heidi Bond?

The fact is that I have never spoken to or seen Heidi Bond. Except by reading her blog and exchanging a few e-mails, I do not know her at all. So why do I want to know? Simple -- I get more hits on this blog from people searching her name than I do from people searching MY name. So why shouldn't I try to get a little more traffic to this site? So, if you know where Heidi Bond is, let me know. You can leave a comment by clicking on the # sign under this post or by e-mailing me at shausler at gmail dot com. Hope to hear from you.

Irreparable injury. Irreparable injury is not presumed in a trade secret case, where the owner of a trade secret is not alleging that the party that has wrongful possession of such a secret is planning on disseminating the secret to a wider audience. In Faivelely Transport Malmo AB v. Wabtec Corp., the Second Circuit reversed the grant of a preliminary injunction.

Judge Cabranes had a fun time with this decision, which involved subway breaks. Read on:

"To the parties in this case, subway breaks are known as "Brake Friction Cylinder Tread Break Units" ("BFC TBU"). For the rest of us, BFC TBU are "that loud squeaking, sparking braking system that so reliably stops the New York City Transit subway system. Twenty-four hours a day and 365 days a year, the City's subway cars safely stop at 468 passenger stations -- and as any straphanger knows, many times in between -- depositing riders of all classes and descriptions at homes, workplaces, ballparks and every other destination imaginable.

"The subway is an indelible feature of the City's culture. Its legend and lore fascinate locals and visitors alike. A point of personal pride for many New Yorkers, the City's subterranean transit has appeared in song, on stage and screen."

The decision quotes from the song "New York, New York" and the novel Bonfire of the Vanities. All subway buffs owe a debt of gratitude to Judge Cabarnes.

The decision can be found here.

Collapse. The Second Circuit is usually not shy to certify unclear questions of New York law to the New York State Court of Appeals. But in Dalton v. Harleyville Worcester Mutual Ins. Co. it declined to do so. The definition of what constitutes a "collapse" of a building had not been decided by the Court of Appeals, and the Second and Third Departments of the Appellate Division have taken different views. Rather than certifying the question to the Court of Appeals, the Court decided that the term was ambiguous and should be resolved against the insurer.

I would anticipate a motion for rehearing, asking that the issue be certified. The case involved the all too common occurrence of an insurance company disclaiming liability for damage that appears to be covered by the policy. Perhaps that is the reason that the Court acted as it did. The decision can be found here.

Calorie Counting. The Second Circuit has upheld New York City Health Code 81.50, which requires roughly 10% of the restaurants in New York City, including chains such as McDonlads, Burger King and Kentucky Fried Chicken, to post calorie content information on their menus and menu boards. The Court held that the statute was not preempted by federal law and did not violate the restaurants' freedom of speech.

The decision in New York State Restaurant Ass'n v. New York City Board of Health can be found here.

Champerty -- Certified Questions. In Trust for Certificate Holders of the Merrill Lynch Mortgage Investors Pass-Through Certificates Series 1999-C1, by and through Otix Capital Markets, LLC, as Master Servicer and Special Servicer v. Love Funding Corp., the Trust had sued Love Funding Corp. for breach of certain representations and warranties in a mortgage-loan-purchase agreement governing the origination of certain commercial loans held by the Trust. Love Funding asserted that the claim was champertous because the Trust had purchased the interest from USB Real Securities, Inc. for the sole purpose of suing Love Funding. After a bench trial, the District Court held that the assignment of interest from USB to the Trust was void as champertous and entered judgment for Love Funding. The Trust appealed.

The Second Circuit held that resolution of the appeal depended on significant and unsettled questions of New York law and certified those questions to the New York State Court of Appeals. The questions certified are:

1. Is it sufficient as a matter of law to find that a party accepted a challenged assignment with the "primary" intent proscribed by New York Judiciary Law 489(1), or must there be a finding of "sole" intent?

2. As a matter of law, does a party commit champerty when it "buys a lawsuit" that it could not otherwise have pursued if its purpose is thereby to collect damages for losses on a debt instrument in which it holds a pre-existing proprietary interest?

3. (a) As a matter of law, does a party commit champerty when, as the holder of a defaulted debt obligation, it acquires the right to pursue a lawsuit against a third party in order to collect more damages through that litigation than it had demanded in settlement from the assignor?

(b) Is the answer to question 3(a) affected by the fact that the challenged assignment enabled the assignee to exercise the assignor's indemnification rights for reasonable costs and attorneys' fees?

Aggravated Felony. The Second Circuit held that a state law drug conviction for a small quanity of marijuana was not an aggravated felony, warranting deportation. To make such a determination, the court looked to whether the offense was equivalent to felony drug traficking under the federal Controlled Substance Act ("CSA"). The CSA has an exception for the distribution of small amounts of mariuana without remuneration, treating it as a misdemeanor. The Court held that the petitioner in this case had not committed an aggravated felony because the crime fell within the CSA exception.

The decision in Martinez v. Mukasey can be found here.

No New Hearing. In a habeas proceeding, the district rejected the credibility determinations of the magistrate judge without holding a separate evidentiary hearing. Not a good idea. The Second Circuit vacated the ruling (granting the habeas relief) and remanded it to the district court for further proceedings.

The decision in Carrion v. Smith can be found here.

Discovery in an Arbitration. The Second Circuit held that section 7 of the Federal Arbitration Act does not authorize an arbitrator to compel pre-hearing document discovery from non-parties to the arbitration.

The decision in Life Receivables Trust v. Syndicate 102 at Lloyd's of London can be found here.

Caught in the legal recession? Well, I try not to go off topic, but when the ABA asks for help, who am I to withhold it?

The ABA Journal is surveying lawyers about the job market and the current state of the economy. Here is the link: http://www.surveymonkey.com/s.aspx?sm=9Dhw2g7bX_2bxfq4mW8eB1Cg_3d_3d

Survey results will be published in the January ABA Journal. Answers will be kept confidential and used only in combination with all other responses received.

Well you've been informed.

Diversity. The Second Circuit has held that CPLR 901(b), which prohibits a lawsuit seeking a statutory penalty from being brought as a class action, can be applied in a federal court sitting in diversity.

The decision in Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co. can be found here.

Swastica tatoos. The Second Circuit held that it was a violation of the Confrontation Clause for a District Court to prevent a minority-group defendant from cross-examining a government witness about his swastica tatoos.

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

Purchase Money Obligation. The Second Circuit has asked the New York Court of Appeals to construe the term "purchase money obligation" as it is used in UCC 9-103(a)(2). The Court needs the answer to this certified question so that it can determine what status in bankruptcy should be accorded to the "negative equity" that someone who trades in an old car rolls over into a new car-financing contract.

The decision in In re Faith Ann Peaslee can be found here.

Erasing a Sanction. The Second Circuit has held that parties cannot condition the settlement of an action on the District Court's vacatur of an award of sanctions against a party's attorneys. The decision in ATSI Communications, Inc. v. Shaar Fund, Ltd. can be found here

Executives. In answer to a certified question, the New York State Court of Appeals has held that an executive is an employee under the New York Labor Law, article 5, except where expressly excluded. The Court of Appeals further held that section 193 of the Labor Law did not prevent the parties from entering into a contract where a commission was not "earned" until after certain deductions were made from her percentage of gross billings.

The answers provided by the Court of Appeals worked to the detriment of an executive who, upon leaving her company, sued it for making certain purportedly unlawful dcductions.

The decision in Pachter v. Bernard Hodes Group can be found here.

KPMG Employees Off the Hook. The Second Circuit has upheld the dismissal of the indictments of eleven partners and employees of accounting firm KPMG, LLP because the government had caused KPMG to put conditions on the advancement of legal fees to the defendants. This violated the defendants’ Sixth Amendment right to counsel.

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

Tolling the staute. The Second Circuit held that a application, pursuant to 18 U.S.C. 3292, to suspend the running of a statute of limitations pending a request for foreign evidence must be made before the statute of limitations expires.

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

Certified question. In an action brought under the Individuals with Disabilities Education Act, a father brought an action seeking relief on behalf of him and his disabled son. Because he was the non-custodial parent, the distirict court held that he did not have standing to bring the action. The Second Circuit held that standing turned on an unsettled issue of New York state law and certified the question for decision by the New York State Court of Appeals. The certified question is:

Whether, under New York law, the biological and non-custodial parent of a child retains the right to participate in decision pertaining to the education of the child where (1) the custodial parent is granted exclusive custody of the child and (2) the divorce decree and custody order are silent as to the right to control such decisions?

The Second Circuit noted that two departments of the Appellate Division, New York's intermediate appellate court, have held that non-custodial parent does not retain such a right, but it "was reluctant to take that final step [considering the Appellate Division decisions as determinative] in the absence of a Court of Appeals pronouncement because the ruling has broad implications affecting the custodial relationships in New York -- a matter of paramount concern."

The decision in Fuentes v. New York City Department of Education can be found here.

Absentee Ballot. The Second Circuit reversed the District Court's decision dismissing a complaint claiming that the New York State Board of Elections violated the plaintiffs' Fifth Amendment rights by failing to provide for absentee ballots in elections for polical party county committees, while providing them for all other kinds of elections. The Court remanded the case to the District Court with instructions to enter judment in favor of the plaintiffs.

The decision in Price v. New York State Board of Elections can be found here.

Steinbeck. The Second Circuit has reversed a ruling that awarded John Steinbeck's son and granddaughter publishing rights to 10 of the author's early works, including 'The Grapes of Wrath.

The decision in Penguin Group (USA) Inc. v. Steinbeck can be found here.

DISCLOSURE: My firm represents Nancy Steinbeck in this action, although she was not a party to the appeal.

9/11. The Second Circuit has ruled that Saudi Arabia and four of its princes cannot be held liable in the Sept. 11 attacks. The Court held that the Saudi defendants are protected by sovereign immunity. It also agreed with a lower court that a Saudi banker and a charitable organization cannot be held liable.

The decision in In re Terrorist Attacks of September 11, 2001 can be found here.

Modest success. The Second Circuit has held that the district court was proper in reducing a request for attorneys' fees in a case brought under the Fair Labor Standanrds Act from $340,375 to $49,889 in light of the limited successs acheived by the attorney.

The decision in Barfield v. New York City Health and Hospitals Corp. can be found here.

Another certified question. The Second Circuit has asked the Court of Appeals for its view on another question. The certified question is:

Does New York General Obligations Law 15-301(1) abrogate, in the case of a contract where the second of two irreconcilable provisions requres that any modifications to the agreement be made in writing, the common law rule where two contractual provisions are irreconcilable, the one appearing first in the contract is to be given effect rather than the one appearing subsequent?

The decision in Israel v. Chabra can be found here.

Waiving Doctor-Patient Privilege. The Second Circuit granted a writ of mandamus and reversed an order that required a prisoner's psychiatric records to be disclosed in a case where the prisoner brought a 1983 action alleging that correctional officers used excessive force on him. The prisoner was not seeking damages for mental or unusual emotional injury.

The decision in In re Sims can be found here.

Evidence after summations. The Second Circuit, in United States v. Crawford, held that the district court had abused its discretion in reopening the record after summations to allow the posecution to put in additional evidence.

The decision in this case can be found here.

Cash-based defined benefit plans. The Second Circuits, joining the other circuits that have considered the issue, has held that cash-based defined benefit plans do not inherently result in age-based reduction in the rate of benefit accrual and do not violate ERISA. The Court noted that there had been some confusion among the district courts of the Second Circuit as to law on this issue.

The decision in Hirt v. The Equitable Retirement Plan for Employees, Managers and Agents can be found here.

Attempted Deceit -- Certified Questions. The Second Circuit, in Amalfitano v. Rosenberg has certified the following questions to the New York State Court of Appeals:

Can a successful lawsuit for treble damages brought under N.Y. Judiciary Law 487 be based on an attempted but unsuccessful deceit upon a court by the defendant?

In the course of such a lawsuit, may the costs of defending litigation instituted by a complaint containing a material misrepresentation of fact be treated as the proximate result of the misrepresentation if the court upon which the deceit was attempted at no time acted on the belief that the misrepresentation was true?

The decision can be found here.

Prerequisite. The Second Circuit has held that it is not a prerequisite to liability under the Americans with Disabilities Act to request an accommodation when the employer is aware of its employee's disability or the disability is apparent. The decision in Brady v. Walmart Stores, Inc. can be found here.

Can there by corporate scienter without scienter of a corporate agent? The Second Circuit says yes, at least at the pleading stage. The Court, in Teansters Local 445 Freight Division Pension Fund v. Dynex Capital Inc. found that the requisite strong inference of scienter of the corporate defendant had not been made, and vacated the District Court's order denying the motion to dismiss and remanding the case to the District Court.

The decision in that case can be found here.

We have discretion? Evidently not all district judges are aware that they have discretion to depart from the sentencing guidelines range. Because of this, a crack coclaine defendant will get a chance for a lower sentence. It was unclear whether his judge was one of those clueless judges.

The deciison in United States v. Jones can be found here.

Fraudulent conveyance. The Second Circuit has held that a federal securities receiver may not employ New York Debtor and Creditor Law section 276 to set aside a fraudulent conveyance where he represents only the transferor.

In addition, the Court held that a third party who claims a right to certain property held by the receiver is entitled to a jury trial under the Seventh Amendment.

The decision in Eberhard v. Marcu can be found here.

Recusing for Mukasey. The Justice Department does not have to recuse itself from representing the Untied States in an appeal from former-District Judge Michael Mukasey. The Court noted that if Mukasey is not participating in the appeal that is sufficient.

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

Those creative lawyers!

Chutzpah. In United States v. Habbas, we have two gentlemen who conspire to frame a man for a crime that could put him behind bars for life. They were caught and entered into plea agreements. One of these "gentlemen" argued that the government had breached the plea agreement by arguimg for a higher sentence than the non-binding estimate it made in the plea agreement. The agreement specifically stated that it was non-binding and stated that the government might seek a higher sentence (which it did). The Second Circuit affirmed the sentence, noting, among other things. that the defendant had suffered no prejudice from the dovernment's action, stating that "[t]he [district] court understandably found that the heinous cynicism and cruelty of defendant's crime called for a sentence of nothing less than eight years, whihc was far in excess of the range resulting from the four-level addition." The Court would have done what it did regardless of the government's position. The crime was seen as so despicable that it warranted the severe sentence.

The decision in this case can be found here.

Student's First Amendment rights. The Second Circuit upheld a denial of an injunction to void the election of a Seniro Class Secretary and ordering the school to have a new election in which the plaintiff's daughter would be allowed to participate. The daughter had been disqualifed from the election because she posted a vulfar and misleading message about the supposed cancellation of an upcoming school event on an independently-operated, publicly accessible blog. The District Court held that the plaintiff was unlikely to prevail on the merits. The Second Circuit affirmed, stating that the student's blog post created a foreseeable risk of substantial disruption at the the school. The Court held that the, under the circumstances of the case, warratned the disciplinary action imposed and the fact that the student's statement on the blog did not take place on school grounds was irrelevant because the statement was likely to create a disruption. All this about a school concert.

Much ado about nothing.

The decision in Doninger v. Niehoff can be found here.

Civil First. The Second Circuit has held that a tax evader is not entitled to argue his tax position in a civil proceeding before being prosecuted for tax evasion. Not really a shocking holding. Many white collar crimes have a civil claim that can also be brought by the government. To allow a defendant an opportunity to try his or her case civilly first would allow the defendant to get to see the government's evidence and witnesses while the stakes are lower.

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

Remand. The Second Circuit has held that it has the authority to remand an issue of nationality to the Board of Immigration Appeals if the issue had been presented but not decided by the Board. The Government had taken the position that 8 U.S.C. 1252(b)(5), which provides that the Court of Appeals is to decide issues relating to nationality without saying anything about remand, precludes the Court from sending a nationality case back to the BIA. The Court disagreed.

The decision in Poole v. Mukasey can be found here.

Solicitor General. Paul Clement has resigned as Solicitor General of the United States. It is likely that principal deputy Solicitor General Gregory Garre will close out the Bush administration as acting Solicitor General.

No Jurisdiction. The Second Circuit, based on its prior precedent, found that it did not have jurisdiction to review a claim that an immigration judge erred in its application of law in determining whether an alien's removal would result in "exceptional and extremely unusual hardship." The Court stated that it agreed with the petitioner's legal position, but lacked jurisdction under its prior precedents.

The decision in Mendez v. Mukasey can be found here.

Payment. A lawyer failed to take the required actions to proceed with an appeal from a decision of the Board of Immigration Appeals because his client had not paid the agreed upon fee. When the fee was paid, a year after the appeal had been dismissed, the attorney sought to reinstate the appeal and recall the mandate.

Judge Newman, while appalled that an attorney would think that he had no ethical obligation to proceed with an appeal after accepting some money and entering into a retainer agreement, granted the motion, stating that "it seems unfair to penalize the client because of his lawyer's conduct." A copy of the file was transmitted to the Grievance Committee of the Circuit for such action as it sees appropriate.

The decision in Bennett v. Mukasey can be found here.

Right of Action. Under the Vienna Convention on Consular Relations, an alien is entitled to be informed of his right to contact his consulate in the event of arrest. The plaintiff in Mora v. People of New York was not so informed and sued under the Alien Tort Statute. The case was dismissed because the court believed that the Convention did not convey an individual right that could be enforced in domestic courts. On appeal, the plaintiff asserted that the right could be enforced not only under the Alien Tort Act, but also under section 1983 and through an implied right of action arising from the Convention itself.

The Second Circuit held that no such right of action existed. The decision can be found here.

Kelo redux. In an attempt to stop proposed development of downtown Brooklyn through, in part, the use of eminent domain, the plaintiffs in Goldstein v Pataki claimed that the use of that power, which they claimed, was not for a public purpose and hence violated the Public Use clause of the Fifth Amendment.

The District Court dismissed the action, and the Second Circuit, based on the Supreme Court's decision in Kelo v. City of New London, affirmed.

The decision can be found here.

Light cigarettes. The Second Circuit has reversed an order granting certification of a class consisting of individuals who were deceived into believing that "light" cigarettes were healthier than ordinary cigarettes. The Court found that individual issues outweighed issues susceptible to common proof.

The decision in McLaughlin v. American Tobacco Co. can be found here.

Inter-racial marriage. The Second Circuit has held that a white person married to a black person may sue under Title VII if his employer takes action against him because of his inter-racial marriage. The decision in Holcomb v. Iona College can be found here.

Congratulations. As regular readers of this blog (if there is such a thing) know, I have the practice of "adopting" a law school blogger. My current adoptee is "Butterflyfish," who blogs on life and law school. She has just been made an editor on the law review of her unnamed law school. Because she wants to be anonymous, I am not at liberty to even reveal the precise position, but, suffice it to say, it is a responsible one. Congratulations.

Absolute immunity. The Second Circuit has held that testifying witness in police disciplinary hearings have absolute immunity.

The decision in Rolon v. Henneman can be found here.

What is a person? Chemical companies were held to persons under 28 U.S.C. 1442(a)(1), allowing them to remove a case to federal action. The chemical companies were found to have acted under a federal officer performing acts under color of federal office with respect to Agent Orange.

The Second Circuit reversed the decision of the District Court finding no federal jurisdiction. The decision in Isaacson v. Dow Chemical Co. can be found here.

Certified question. The Second Circuit has certified an interesting question to the New York State Court of Appeals. (Well, they're all interesting to me, but that 's because I'm a Second Circuit geek.) The question is whether, when an injured person brings an action against an insured by serving the party throught the Secretary of State, this service suffices to trigger the insured's obligation to notify his insured under the terms of the policy. This issue has led to divergent opinions in the district courts.

The decision in Briggs Avenue LLC v. Insurance Corporation of Hanover can be found here.

Terror Publicity. The owner of an ice cream parlor in Park Slope, Brooklyn, who had been convicted of illegally funneling money from the business to Yemen in violation of U.S. law. There had been some publicity about his terror connections, and he was convicted. On appeal, he raised the issue of the pretrial publicity. A divided Second Circuit held that he had waived the defense because, although he had raised the issue, he had not asked that the jurors be polled to see if they had seen the publicity. Without such a poll, there was no evidence that the jury had been affected by the publicity. Judge Sack dissented, in part because of the publicity issue, which he thought violated the Due Process Clause of the Constitution.

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

Suspension. The Second Circuit, in Ruis-Martinez v. Mukasey, has held that the REAL ID Act does not violate the Suspension Clause of the Constitution. The respondents had argued that relief under the Act, with its 30-day limitations period, was not an adquate substitute for relief under a writ of habeas corpus.

The decision can be found here.

Objection. The Second Circuit has held that the objection of the Department of Homeland Security to a petition to reopen a removal proceeding, having nothing to do with the merits, is an insufficient basis to deny the petition.

The decision in Melnitsenko v. Mukasey can be found here.

Doctor an Employee. While the Court asserted that the issue is fact specific, it held that issues of fact from which a jury could infer that a staff physician was an employee, and not just an independent contractor, and subject to statutes prohibiting sexual harassment. The decision in Salomon v. Our Lady of Victory Hospital can be found here.

Conference. Calling all appellate attorneys. I've just been advised that the DRI Appellate Advocacy Seminar will be held on February 28-29, 2008 in Orlando Florida. The program includes:

An assessment of the Roberts Court by Supreme Court practitioner Patricia Ann Millett and law professor David Stras.

A panel discussion giving the "view from the other side of the bench" by appellate judges Theodore McKee (3d Cir.), Diane Sykes (7th Cir.) and Chief Justice Jean Hoefer Toal (S.C. Sup. Ct.)

"The Beautiful Brief -- Persuasion Through Appearances" by Professor Ruth Anne Robbins, author of Painting with Print

A panel discussion by three in-house lawyers about the contributions that appellate lawyers give to the trial team

"Judicial Use of Legal Reasoning -- Theory Versus Practice" by Professor Emily L. Sherwin

"The Impact of the Internet in Briefs and Judicial Opinions" by Professor Coleen M. Barger

"How to Bring a Cold Paper Record to Life" by Dahlia Lithwick, giving a journalist's perspective on how to convert a box of paper into a compelling story

"The Unwritten Rules of Appellate Procedure" by appellate attorney Luther Mumford

A presentation on arbitration appeals by Aaron S. Bayer

A presentation on ethical issues in appellate advocacy by Douglas R. Richmond of Aon Corp.

For more info, check out the DRI (it stands for Defendse Research Institute) website.

Overtime. The Second Circuit held that a nurse placement service had violated the Fair Labor Standards Act by failing to pay its employees time and a half for working overtime without authorization, however, held that the Secretary of Labor could not find the company in contempt of a consent order, requiring the company to pay its workers overtime rates for work in excess of 40 hours. The Court held that the consent decree was ambiguous in that it did not unambiguously proscribe the challenged conduct. Judge Jacobs, concurring with the decision, found, however, that the company did not even violated the FLSA because the work was prohibited by the company, unless advanced authorization was received.

The decision in Chao v. Gothan Registry, Inc. can be found here.

Straying. A sentence which strayed from the terms of a plea agreement warranted setting a hearing before the District Court on the issue of sentencing. The summary order issued in United States v. Leonardo can be found here. The defendant in this case was a disgraced ex-lawyer, Anthony Leonardo Jr., who had been convicted for conspiracies to commit murder, traffic cocaine and launder money. Mr. Leonardo had been a prominent defense attorney. An article on this case can be found here.

Not following Procedures. When procedures designed to safeguard an immigrant's right to counsel were not followed by the government, the Second Circuit reversed the order of removal imposed by the Immigration Judge and affirmed by the Board of Immigration Appeals.

The decision in Picca v. Mukasey can be found here.

Immigration Custody. The Second Circuit has held that a person in immigration custody is not "in custody" within the meaning of 28 U.S.C. 2254.

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

Outlaws. The Second Circuit affirmed the order of the district court granting summary judgment to the Connecticut Department of Corrections, dismissing the action brought against it by correctional officers who had been disciplined for being members of the Outlaws Motorcycle Club.

The decision in Piscottano v. Murphy can be found here.

No immunity. In Gilles v. Repicky, the Second Circuit reversed an order granting summary judgment based on qualified immunity grounds. The Court held that a police officer could not hold an individual after he no longer had reasonable grounds to believe that she had engaged in criminal activity, even if at the time of the stop, he had such grounds.

The decision can be found here.

More certified questions. The Second Circuit is putting the New York State Court of Appeals back to work by certifying some more questions. The questions submitted to the New York Court in Reddington v. Staten Island University Hospital are:

Does the institution of a time-barred claim pursuant to New York Labor Law 740 simultaneously with a claim pursuant to New York Labor Law 741 trigger section 740(7)'s waiver provision and thereby bar the section741 claim, even if the section 740 claim is subsequently withdrawn?

Does the definition of employee in New York Labor Law 741 encompass an individual who does not render medical treatment, and under what circumstances?

The decision can be found here.

Unsworn recantation. The Second Circuit in Haouari v. United States denied without prejudice a criminal convict's motion to file a second motion under 28 U.S.C. 2255 because the new evidence was not in the proper form. The evidence was an unsworn letter from the petitioner's co-conspirator, recanting his prior testimony. The Court held that the evidence would have to be provided in the form of a sworn affidavit.

The decision can be found here.

Unsubstantiated. The Second Circuit remanded a case to the district court for resentencing because it was unclear to what extent the district court had impermissibly based its sentencing enhancement on unsubstantiated charged conduct.

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

Terror. The government's search and detention of certain American citizens of the Islamic faith upon their return to the US from Canada where they were attending an Islamic convention that the government believed that terrorists would be attending was held not to violate the Administrative Procedure Act, the Religious Freedom Restoration Act or the First and the Fourth Amendments to the Constitution.

The decision in Tabaa v. Chertoff can be found here.

Punitive. The Second Circuit has affirmed an award of $1 billion in punitive damages.

The damage award was based on the district court's finding that the appellants "engaged in a coordingated campaign of lies and misrepresentation in order to swindle Motorola of more than $2 billion" and that, "threatened with exposure, [appellants] resorted not only to further lies and corporate manipulations, but even to obstruction of justice and, ultimately, misrepresentations to this court."

I think it was the misrepresentation to the court that really did it.

The decision in Motorola Credit Corp. v. Uzan can be found here.

Answered certified question. In a case involving an alleged molestation of a child by a pastor, the Second Circuit had certified a question to the Vermont Supreme Court. The question was whether under Vermont Law a church is subject to vicarious liability for tortious acts of its pastor under the Restatement (Second) of Agency sec. 219(2)(d) if the pastor was allegedly aided in accomplishing the tort by the existence of the agency relation with the church. The Vermont Supreme Court answered the question in the negative and the Second Circuit affirmed the District Court's grant of summary judgment.

The decision in Doe v. Newbury Bible Church can be found here.

Full Court Press. Interesting article in the New York Law Journal entitled "Addition of Livingston Gives Circuit a Full Bench." Check it out.

Dancing. Well, the Town of Henrietta has found out that you have to be careful when you attempt to close down a teen dance club. You should follow your own rules for taking away a special use permit and you should definitely not make statements that can be seen as racially discriminatory. The Second Circuit granted a partial summary judgment to the plaintiffs in this case, reinstating their substantive due process claims, while upholding the dismissal of the equal protection and conspiracy claims.

Cine SK8, Inc. v. Town of Henrietta was remanded to the district court so that the immunity defenses, which were not addressed by the Distict Court could be dealt with. The decision can be found here. (Thanks to Wait A Second!)

Withdrawn. The opinion in Salamon v. Our Lady of Victory Hospital, which had been posted on October 29, 2007, has been withdrawn without explanation. An amended decision will be posted. If you must know what this case is about (and, of course, if you read this blog, you probably must), go to Wait A Second! for a description of the case. Sorry, but that's the best I can do.

Thomas J. Meskill. Senior Circuit Judge Thomas J. Meskill has died at the age of 79. Before becoming a Circuit Judge, Judge Meskill was a congressman and the governor of Connecticut.

Certified question. The Second Circuit has certified some more questions to the New York State Court of Appeals. The questions are:

Whether an '"Executive" is an "employee" under Labor Law, Article 6, section 193 and entitled to the protections of that statute?

In the absence of a governing written agreement, when are commissions "earned" and therefore considered "wages" under sections 191 and 193 thereby rendering most subsequent deductions unlawful?

The decision in Pacter v. Bernard Hodes Group, Inc. can be found here.

Oops. The Second Circuit held that a student seeking relief under Title III of the Americans with Disabilities Act or under Title V based on a violation of Title III does not have to exhaust administrative remedies. The District Court got it wrong.

The decision in Mc Inerney v. Renssalear Polytechnic Institute can be found here

Retroactive transfer. The Second Circuit has held that a copyright action brought by a holder of a copyright cannot be defeated by a retroactive transfer by a co-owner of the copyright.

The decision in Davis v. Blige can be found here.

World Trade Center. Well, litigation relating to 9/11 goes on. In In re World Trade Center Disaster Site Litigation, the plaintiffs sought to vacate a stay of proceedings pending a decision on an interlocutory appeal relating the purported immunity from suit alleged by the defendants. The motion to vacate the stay was made after argument on the appeal. Without finally deciding the issues on appeal, the Court vacated the stay, holding that it was less likely that the defendants would prevail on appeal and that the public interest favors permitting pretrial proceedings to resume.

The decision can be found here.

Exhaustion. The Second Circuit held that a student had to exhaust his administrative remedies before going to Federal Court even though he was scheduled to graduate before his remedies could be exhausted. The plaintiff in Coleman v. Newburgh Enlarged City School District had the award of attorneys' fees revered because the District Court should have dismissed the action for failure to exhaust.

The Court left open the question as to whether the exhaustion requirement is jurisdictional (and non-waiveable) or merely mandatory (but waiveable). In this case, the School District has not waived the defense.

The decision can be found here.

Reasons. The Second Circuit has vacated a sentence in United States v. Hirliman because the judge for the second time had failed to provide his reasons for deviating from the Guidelines. The Second Circuit had previously remanded the case for resentencing, and ordered the judge to provide reasons for deviation, but he did not do so. The case is being reassigned to a new judge for resentencing.

The decision can be found here.

Guns. The Second Circuit heard arguments in City of New York v. Beretta USA Corp., a case involving whether New York City should be able to go to trial in its efforts to force gun manufacturers and distributors to put a lid on the illegal sale of firearms.

The New York Law Journal's coverage of this oral argument can be found here.

Crawford. The Second Circuit upheld a grant of a petition for habeas corpus, holding that Gregg Becker's Sixth Amendment right of confrontation had been violated by the admission of 11 guilty plea allocutions at his trial. The Supreme Court in Crawford v. Washington had held that out of court testimonial statements cannt be admitted against a defendant unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine him.

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

Solomon Amendment. The Second Circuit has held that the Solomon Amendment, which withholds certain federal funding to universities of which any part does not allow military recruiters, does not violate the First Amendment rights of the faculty of a university.

The decision in Burt v. Gates can be found here.

Fraternal. A fraternity tried to prevent the College of Staten Island from inforcing its policy of not recognizing student groups that discriminate on the basis of sex. The district court had granted a preliminary injunction, but the Second Circuit held that the balance of interests favored the College and reversed.

The decision in Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City University of New York can be found here.

Oral argument. Looks like the Second Circuit is putting some limits on oral argument, at least temporarily. Time will tell if this interim rule becomes permanent.