Inculpatory testimony by police officer as to the statement of a third party is not admissible

The Second Circuit, in Orlando v. Nassau County District Attorney’s Office, a habeas action, the Second Circuit held that the state trial court had erred in allowing a police officer to testify that the defendant in a related case had told him that Orlando had hired him to kill Bobby Calabrese.  The defendant in the related case had not testified in Orlando’s case.  Orlando had argued that allowing the police officer to testify violated his rights under the Confrontation Clause.  The district court had held that because the testimony was not offered for the truth, but for a collateral reason (to explain a change in Orlando’s story), allowing the police officer did not violate Orlando’s Sixth and Fourteenth Amendment right.  (The district court had issued an instruction to the jury that the testimony should not be considered to show that Orlando had hired the other defendant to kill Calabrese.)  The district court issued a certificate of appealability.  The Second Circuit held that the limiting instruction was not sufficient when testimony directing incriminating Orlando was given.

The Second Circuit's decision can be found here.

Rooker-Feldman Doctrine.

In Cho v. City of New York, the plaintiffs had been charged with violating New York City's Nuisance Abatement Law.  They entered into settlement agreements with the City rather than defend themselves in court.  Each of the agreements were "so-ordered" by the state court.  The New York law allowed ex parte orders, requiring a premises on which an alleged public nuisance was being conducted to be closed.

Bringing a federal action against the City, the plaintiffs asserted that the City used the state court actions to compel property owners and leaseholders to enter into settlement agreements waiving their constitutional rights and that the so-ordered so-ordered settlement agreements violated the Fourteenth Amendment.  They asked the district court to enjoin the City from enforcing the agreements and declare them to be unconstitutional, invalid and unenforceable.  The City moved to dismiss and the district court granted the motion, claiming that it had no jurisdiction over the matter under the Rooker-Feldman Doctrine.  The Rooker-Feldman doctrine provides that federal district courts lack jurisdiction over suits that are, in substance, appeals form state court judgments.

For a district court to be without jurisdiction under this doctrine, four requirements must be met.  First, the plaintiff in the federal action must have lost in state court.  Second, the plaintiff must complain of injuries caused by a state court judgment.  Third, the plaintiff must invite district court review and rejection of that judgment.  Fourth, the state court judgment must have been rendered before the district court proceedings had been commenced.

The Second Circuit reversed, holding that where the state court action did not cause the injury but was a mere ratification of it, the second requirement of the Rooker-Feldman doctrine had not been met and the district court was not deprived of jurisdiction.  The injury that the plaintiffs sought to remedy was an injury caused when, prior to any judicial action, they were coerced to settle, not an injury that flows from a state court judgment.  Accordingly, the judgment was vacated and the case remanded to the district for further proceedings.

The decision in this case can be found here.

Whole grain

The Kellogg Company advertised on the labels that its Cheez-It crackers were made with whole grain.  In fact, the primary ingredient in the crackers was enriched white flour.  The plaintiffs filed a class action against Kellogg, alleging that the labels were false and misleading.  The district court held that the whole grain labels would not mislead a reasonable consumer and dismissed the action.  The plaintiffs appealed.

The Second Circuit reversed the decision of the district court and remanded the case for further proceedings.  The Court rejected the contention that information on the side of the box, relating to the nutritional content of the crackers cured the misstatement.  It held that the plaintiffs had alleged a plausible claim and that the district's dismissal had been improper.

The decision in Mantikas v. Kellogg Co. can be found here.

Qualified Immunity for Tasing Student

The parents of a 12-year old profoundly-deaf boy got into a confrontation over a takeout order with a teacher at his school.  He became angry, ran from the dorm and entered onto a nearby fenced-off construction site.  The teacher followed him and the boy hit him with a stick and threw rocks at him.  The dean of the school called the police.  When the police arrived the boy was holding a large rock.  Officer Gionfriddo, of the police, instructed the boy to drop the rock, which instruction was translated by the dean into American Sign Language.  The boy did not drop the rock.  Officer Gionfriddo then told him that he would be tased if he did not drop the rock, which was also translated to ASL.  When the boy did not drop the rock the police tased him twice and put him in handcuffs.

The boy denies that he actually received or understood any of the instructions or warnings given to him or even knew that the police officers were at the school until he was tased.  He (or actually his parents who commenced suit on his behalf) claimed that Officer Gionfriddo's belief that the instructions and warnings were translated and being understood by the boy were unreasonable.

Officer Gionfriddo moved for summary judgment on the ground of qualified immunity.  The district court denied the motion, asserting that such immunity depends on factual disputes that hinge on credibility determinations, which must be made by the jury.  Officer Gionfriddo appealed.

The Second Circuit reversed, holding that it was objectively reasonable for Officer Gionfriddo to believe that his conduct was lawful.  In other cases, the Court had held that it was not unreasonable for an officer to use a taser in similar circumstances.  Accordingly, Officer Officer Giorfriddo was entitled to qualified immunity.

The decision in Muschette v. Gionfriddo can be found here.

Trying to Evade a Class Action

In Geismann, M.D., P.C. v. ZocDoc, Inc., Geismann , a Missouri professional corporation, commenced a class action in Missouri state court against the defendant, claiming that it had violated the Telephone Consumer Protection Act by sending unsolicited advertisements by fax.  Geismann, a Delaware corporation, also moved for class certification.  ZocDoc removed the case to the District Court for the Eastern District of Missouri.  Two weeks later, ZocDoc made an offer of judgment to Geismann, pursuant to Rule 68 of the Federal Rules of Civil Procedure for (a) $6,000 plus reasonable attorney's fees in satisfaction of Geismann's individual claims and (b) an injunction prohibiting the defendant from engaging in similar statutory violations in the future.  Geismann rejected the offer of judgment because it did not provide relief to the other members of the class.  ZocDoc moved to transfer the case to the Southern District of New York, which motion was granted.

Upon transfer of the case, ZocDoc moved to dismiss the complaint on the ground that the offer of judgment provided full satisfaction of Geismann's claim and the action was moot.  The District Court granted ZocDoc's motion.  Geismann appealed.

The Second Circuit reversed based on the Supreme Court's decision in Campbell-Ewald Co. v. Gomez, which held that the failure to accept an offer of judgment is not a basis to dismiss an action because such failure, like any unaccepted contract offer, is a legal nullity with no operative effect on a  plaintiff's individual claim.  The Supreme Court, however, left open the possibility that the result would be different if the defendant deposited the full amount of the plaintiff's individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount.

Before the Second Circuit had issued its decision but after the Supreme Court's decision in Cambell-Ewald, ZocDoc filed a motion with the District Court to deposit a check in the amount of $6,100 payable to the clerk of the court in satisfaction of Geismann's judgment.  The Court granted the motion.

After the Second Circuit's decision, the judgment was vacated and the case remanded to the District Court.  The Court stated that ZocDoc's deposit on the funds with the clerk did not match the Supreme Court's hypothetical case in Campbell-Ewald in that it was deposited pursuant to a judgment that no longer existed and should not have been entered in the first place.

ZocDoc filed a letter motion to the District Court seeking leave to deposit an additional $13,900 with the Court under Rule 67, explaining that "ZocDoc hereby makes an open-ended offer to Geismann with no expiration date on a total of $20,000 (twenty thousand dollars) and for all injunctive relief Geismann seeks in the operative complaint."  It further stated that after depositing the funds, it would  seek to perfect the Cambell-Ewald hypothetical by filing a motion for summary judgment in which it will ask the Court to enter a judgment in favor of Geismann and against ZocDoc for the full amount of Geismann's individual claims and to dismiss the class allegations without prejudice..  The District Court granted ZocDoc's letter motion to deposit the funds and to make a summary judgment motion.  ZocDoc moved for summary judgment and asked that the Court dismiss the action as moot in that ZocDoc had deposited the money and consented to the injunctive relief.  The Court granted the motion, dismissed the action and dismissed the class claims without prejudice.  Geisman appealed.

The Second Circuit again reversed, holding that the deposit with the clerk of the $20,000 was not the same as a bank account in plaintiff's name (the hypothetical in Campbell-Ewald) because the plaintiff does not have the right to withdraw the funds at any time.  Hence, the deposit did not render Geismann's individual claims moot.  Also, at the time of the deposit, the District Court was not divested of power to enter a judgment in favor of Geismann.  Again, Geismann's individual claims were not mooted by the deposit.  The Court acknowledged that Geismann's claims could be rendered moot if ZocDoc surrendered to the complete relief sought by Geismann, but that complete relief includes its class claims.  The Court concluded that the District Court had to resolve the pending class certification motion before entereing judgment and declaring an action moot based solely on relief provided to a plaintiff on an individual basis.  To hold otherwise would allow a defendant to thwart class litigation at will through the use of tactical procedural maneuvers.

The Second Circuit's decision in this case can be found here.

CPLR 3102 proceeding not a "civil action" for purposes of removal

In Teamsters Local 404 Health Services & Insurance Plan v. King Pharmaceuticals, the Teamsters Local 404 Health Services & Insurance Plan ("Teamsters Plan") had commenced a proceeding, seeking pre-action discovery under CPLR 3102(c).  It sought to obtain settlement agreement, licensing agreements and any other related agreements between King Pharmaceuticals , Meridian Technologies, Inc. and Pfizer, Inc., the respondents in the proceeding (collectively, the "Respondents") and Teva Pharmaceutical Industries, Ltd. ("Teva"), which documents would assist Teamsters Plan in drafting a complaint by bringing to light certain "pay-for- delay" or "reverse-payment" agreements under which the Respondents were paid to hold off bringing a generic EpiPen to market until June 2015, which agreements Teamsters Plan contended violated state consumer protection laws and state and federal antitrust laws.  King Pharmaceutical attempted to remove the proceeding to federal court and to dismiss because such pre-action disclosure was not available under the Federal Rules of Civil Procedure.  The District Court remanded the case to state court, holding that there was no federal question jurisdiction and that diversity jurisdiction was barred by 28 U.S.C. 1441(b)'s "forum defendant" rule.  That rule provides that when a defendant resides in the state in which the action is commenced, the defendant cannot remove the case to federal court.

The Second Circuit affirmed, but on different grounds.  The Court held that a proceeding brought under CPLR 3102 does not state a substantive cause of action, which is required for a case to be removable.

The decision in this case can be found here.

(Apologies are in order.  This post has been sitting in draft version since mid-October.  I neglected to push the Publish button.  Sorry.)

Doctrine of Functus Officio

Under the doctrine of functus officio, once a panel of arbitrators has exercised its authority to adjudicate the issues submitted to it, the authority of the arbitrators over those question is ended.  In General Re Life Corp. v. Lincoln Nat'l Life Ins. Co., the arbitrators issued an award, and then later issued a "clarification" of the award.  The parties each tried to confirm the award -- Lincoln attempted to confirm the award as clarified and General Re sought to confirm the award as originally issued.  The question was whether the arbitrators had the power to issue the clarification.

The Second Circuit joined the Third, Fifth, Sixth, Seventh and Ninth Circuit in holding that their was an exception to functus officio where an arbitration award fails to address a contingency that later airses or when the award is susceptible to more than one interpretation.  The District Court had accepted the clarification and, on appeal, the Second Circuit affirmed.

The decision in this case can be found here.

Serving as a juror. The Court assumed, without deciding, that the inability to serve as a juror is a collateral conseqence of a conviction is sufficient to support a writ of coram nobis in Porcelli v. United States. This did not help Porcelli because the Court denied the petition on the merits. The decision can be found here.

Correction. No, this is not a correction of a misstatement I have made on this blog -- or anywhere else for that matter. I am correcting a misstatement of fact made by Jeffrey Toobin in his fascinating book on the Supreme Court, The Nine. On page 77, Toobin states that Judges Richard Arnold and Morris Arnold "were the only brothers in American history to serve on the same federal court of appeals.

Well, apparently Toobin has never heard of Augustus Hand and Billings Learned Hand of the Second Circuit.

Ban on Alcohol reversed; rest of sentence OKed

Betts was a bad boy.  He had been convicted of bank fraud, and sentenced to two years imprisonment and five years' supervised release.  The Court had also required that he pay restitution and to notify his probation officer within 72 hours if he was arrested.  Betts had been arrested for driving without a license, and he had not notified his probation officer.  He also had not made the restitution payments.  He pleaded guilty to violating his plea agreement.  He was sentenced to 10 months' imprisonment and an additional four years of supervised release.  As part of his sentence, the Court required him to abstain from alcohol use during his supervised release and required substance abuse testing, stating that there would be zero tolerance for the use of any drugs at all.  Betts appealed.

The Second Circuit rejected Betts's position that the four years of supervised release was unreasonable because if was within the Sentencing Guidelines range, although on the high side of the range.  Any sentence within the Guidelines range is deemed presumptively reasonable.  The Court similarly rejected Betts's claim that his offense did not warrant the four years and that the District Court had wrongly rejected his mitigation evidence.

The Court found that the requirement that the zero tolerance for the use of any drugs was permissible, noting that it did not apply to any prescription drugs.

The Court did find that the ban on alcohol was not not reasonably reasonably related to any of the factors outlined in Section 5D1.3(b) of the Guidelines and vacated that provision of the sentence.

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

Preempted by the Organic Foods Production Act

Three parents brought a class action against Abbott Laboratories, Inc., claiming that it had included in its baby formula, which was purported to be "organic," contained ingredients not allowed by the Organic Foods Production Act (the "Act").  Their claims were brought under New York and California statutory and common law.  The trial court dismissed the action, holding that the claims were preempted by federal law.  On appeal, the Second Circuit affirmed.  The Act allows Abbott to label its formula organic pursuant to a certified organic plan.  All Abbott did was state that its product was certified organic, which is was.  The Court held that the parents' claim would require an adjudication of the product's organic status, something not envisioned by the Act.  Accordingly, the state law claims were preempted and the case dismissed.  The Second Circuit's decision is in accord with a decision of the Eighth Circuit.

The decision in Marentette v. Abbott Laboratories, Inc. can be found here.

Checking the boxes

In McLeod v. The Jewish Center of the Blind, the pro se plaintiff had brought a discrimination action, but had failed to check the boxes on the form discrimination complaint indicating that, in addition to seeking relief under Title VII, she was seeking relief under the New York State Human Rights Law and the New York City Human Rights Law.  Her state law claims were dismissed on the pleadings and her federal claims were dismissed on summary judgment.

The plaintiff appealed, and the Second Circuit vacated the judgment and remanded the case to the district court, holding that, setting aside the unchecked items on the form complaint, based on the plaintiff's handwritten allegations, the district court should have been aware that the plaintiff was asserting claims under New York State and New York City law.  The Court stated  that "our holding is rooted in our well-worn precedent concerning a district court’s obligation to liberally construe pro se submissions. We do not expand that obligation here, nor do we purport to task district courts with the responsibility of scouring obscure bodies of law in order to come up with novel claims on behalf of pro se litigants. Rather, we conclude that in this case, where McLeod’s factual allegations supported claims under the well-known antidiscrimination provisions of the NYSHRL and NYCHRL, our existing precedent required the district court to construe McLeod’s complaint as asserting claims under those laws, regardless of her failure to check the appropriate blank on a form complaint"

The decision in the case can be found here.

Value of a rescission claim

The Second Circuit, in a claim brought under the Magnuson-Moss Warranty -- Federal Trade Commission Improvement Act, held that the value of a contract, without offset, is the amount in controversy for purposes of a rescission claim that was brought under the Act, agreeing with the Third and Sixth Circuits.  In Pyskaty v. Wide World of Cars, LLC, the plaintiff sued the defendant, from whom she had purchased a car for violating the Act and under state law.  The cost of the car was $51,195.  The defendant claimed that the amount in controversy did not meet the jurisdictional threshold for a claim brought under the Act ($50,000), believing that the value of the claim was the amount paid under the contract minus the actual value of the car.  While the district court agreed with the defendant and dismissed the claim, the Second Circuit reversed, holding that the value of the claim met the jurisdictional threshold.

A copy of the decision in this case can be found here.

Adequate Notice under Fair Debt Collection Practices Act

In Carlin v. Davidson Fink, the defendant, a law firm engaged in, among other things, the business of debt collection and foreclosure actions, commenced a foreclosure action against the plaintiff.  The defendant attached to the complaint a "Notice Required by the Fair Debt Collection Practices Act," which stated that the debt set out in the complaint will deemed to be valid unless the plaintiff disputed it within 30 days of receipt of the Notice.

On July 12, 2013, The plaintiff sent a letter to the defendant within the 30-day period disputing the validity of the debt and requesting a verification of the dollar amount of the the purported debt.

On August 9, 2013, the defendant complied, but stated that the amount provided included certain fees that were not yet due, and that if the amount was paid and any of those fees did not actually become due, such fees would be refunded.

The Fair Debt Collection Practices Act requires that within five days of an initial communication with a consumer, a debt collector has to provide a written notice containing, among other things, the amount of the debt.

The action was brought because plaintiff claimed that the defendant had not complied with that requirement.  The defendant moved to dismiss.the action, which motion was denied, but on a motion for reconsideration, the court dismissed the action.  The plaintiff appealed.  The two questions at issue was which document was the initial communication, and whether the notice had been provided.

The Court first held that the complaint was not the initial communication.  The Second Circuit had previously held that a complaint could be an initial communication, but the statute had been amended to eliminate a pleading as an initial communication.

The plaintiff's letter was not an initial communication because an initial communication under the statute was one sent by the debt collector to the consumer.

The Court held that the defendant's August 9, 2013 letter to the plaintiff was the initial communication.

The Court then held that the notice contained in the letter did not comply with the statute because because it "d[id] not specify what the 'estimated fees, costs,  [and] additional payments' are."  The Court stated that "[w]e do not hold that a debt collector may never satisfy its obligation under [the statute] by providing a payoff statement that provides an amount due, including expected fees and costs.  But a statement is incomplete where, as here, it omits information allowing the least sophisticated consumer to determine the minimum amount she owes at the time of the notice, what she will need to pay to resolve the debt at any given moment in the future, and an explanation of any fees and interest that will cause the balance to increase."

The Court acknowledged that the defendant's notice may be common in the debt collection interest, but stated that the Fair Debt Collection Practices Act "does not insulate a debt collector from liability merely because others in the industry engage in the same practice."

The Court vacated the order and judgment of the District Court and remanded the case for further proceedings.

The decision in this appeal can be found here.

No Common Law Right of Public Performance for Creators of Pre-1972 Sound Recordings

A decision in Flo & Eddie, Inc. v. Sirius XM Radio, Inc has come down.

The plaintiff, which claim to own the rights to the recordings of "The Turtles," a well-known band with a string of hits in the 1960s, sued Sirius XM Radio, Inc., a radio and internet-radio broadcaster, claiming that Sirius infringed on the plaintiff's copyright in The Turtle's recordings.  On a motion for summary judgment, Sirius claimed that there was no public performance rights in pre-1972 recordings under New York law and that if such a right existed, it violated the Dormant Commerce Clause.

The District Court held that there was such a right and that it did not violate the Dormant Commerce Clause.  Sirius then moved for reconsideration or to certify its order for interlocutory appeal.  The Court denied the motion for reconsideration, but certified both the summary judgment and reconsideration orders for immediate appeal.

On appeal, the Second Circuit decided that there was an unclear issue of state law that should be decided by the New York State Court of Appeals -- whether there is a right of public performance for creators of pre-1972 sound recordings.

On December 20, 2016, the Court of Appeals held that New York common law does not recognize such a right.

Based on this finding, the Second Circuit reversed the District Court's order denying summary judgment and remanded the case to the District Court with instruction to grant Sirius's motion for summary judgment and to dismiss the case with prejudice.

The New York State Court of Appeal's decision can be found here.  The Second Circuit's decision can be found here.

FMLA -- Obligation on Employer to Ask for Information to Determine whether Employee is Entitled to Relief

In Coutard v. Municipal Credit Union, the District Court dismissed a claim brought by an employee under the Family Medical Leave Act in which the employee claimed that the employer denied him leave to care for his grandfather.  The District Court held that the failure of the employee that he was in a loco parentis relationship with his grandfather doomed his claim.  The Second Circuit reversed, holding that the employer had an obligation to specify any additional information that it needed in order to determine whether plaintiff was entitled to such leave and remanded the case to the District Court for further proceedings.  The plaintiff had asked the Court to grant him partial summary judgment, but the Second Circuit declined to do so.  Even though it held that his claim should be dismissed on failure to give proper notice grounds did not establish as a matter of law that he was entitled to the relief he sought.

A copy of the decision can be found here.

Special Education Case -- "Clear Consensus"

The Second Circuit, in A.M. v. New York City Department of Education, held that where the school district developed an Individualized Education Program ("IEP") for an autistic child, that was against the clear consensus of the substance of the evaluative materials present at the IEP meeting of the Committee on Special Education ("CSE"), such IEP failed to provide the child  with a free, appropriate public education under the Individuals with Disabilities Act.  In so holding, the Court vacated the decision of the District Court and remanded the case for a determination as to whether the placement that the parents had made was appropriate and that equitable considerations favor reimbursement for the sum that the parents had to pay for that placement.

In A.M., the evidence before the CSE showed that A.M. needed intense applied behavior analysis therapy.  The school district had declined to provide for such therapy in the IEP.

A copy of the Court's decision in this case can be found here.

Certified Question on Punitive Damages in Cases under New York City Human Rights Law

What is the standard for assessing punitive damages in a pregnancy discrimination under the New York City Human Rights Law?.  The law itself doesn't set a standard, so the district judge in Chauca v. Abraham, borrowed the standard  from the standard under the federal Title VII and based on that standard declined to give a punitive damages instruction to the jury.  On appeal, the plaintiff contended that this was error because the Human Rights Law should be construed liberally and independently of federal law.  Because there is no controlling New York precedent setting the standard and because that standard is an important issue of state law, the Second Circuit certified a question to the New York State Court of Appeals, asking it to decide as follows:

What is the standard for finding a defendant liable for punitive damages under the New York City Human Rights Law, N.Y.C. Admin. Code § 8‐502?

The decision in Chauca can be found here.

Clear and Unmistakable.

The Second Circuit has reiterated its holding that if a contract agreement provides for arbitration for discrimination claims does not include statutory claims unless the contract's language is clear and unmistakable that such statutory claims are included.  The contract at issue in Winston Lawrence v. Sol G Atlas Realty Co. did not meet this standard.  While the contract stated that discrimination was prohibited and that any violation of the anti-discrimination provision were subject to arbitration.  Because nothing was stated as to claims  under anti-discriminatory statutes, the Court held that the contract did not clearly and unmistakably require such statutory claims be resolved in arbitration.  Accordingly, the District Court's decision sending the case to arbitration and dismissing the action was vacated and the case was remanded for further proceedings.  The Court noted that its decision was in concert with decisions of other circuits that have addressed the issue.

The decision in this case can be found here.

Post - Release Supervision

The New York State Legislature amended the sentencing scheme for violent felons to require that every sentence for a violent felony must be followed by a post-release supervision ("PRS") term.  Some judges.however did not pronounce PRS terms during sentencing proceedings  As a result, certain inmates entered the custody of the Department of Correctional Services ("DOCS") with sentence and commitment orders that did not include PRS terms required by the statute.  Instead of bringing the failure to the attention of the sentencing court, DOCS simply added the PRS term administratively.

This policy was challenged in Earley v. Murray, in which the Second Circuit held that policy was unconstitutional and that the administratively added-on PRS terms were a nullity because that term had not be imposed by a judge.  The Office of Court Administration of New York took the position that the Second Circuit's decision in Earley was not binding on state court and issued a memorandum to judges expressing this view, but urged courts to pronounce PRS terms going forward until the New York State Court of Appeals had the opportunity to rule on this issue.

The New York courts were inconsistent in adhering to to Earley.  The New York State Court of Appeals ruled on the issue in People v. Sparber and Garner v. New York State Department of Correctional Services, holding that New York state law required teh judge to pronounce teh term of PRS orally at sentencing if it was to be included in an inmate's sentence, but did not address whether this rule was also required by the Constitution.

The plaintiffs in Betances v. Fischer were offenders who were subject to mandatory PRS terms and who alleged the DOCS,rather than the sentencing judges, had imposed the PRS terms.  They sought compensatory damages for this violation of their constitutional rights.  The defendants, state officials of DOCS and the Department of Parole, moved to dismiss, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.  The district court denied the motion, and the Second Circuit affirmed, remanding the case to the district court for further proceedings.  In its remand, the Second Circuit directed the district court to develop the record as to objective reasonableness of defendants' efforts to relieve the plaintiffs of the burdens of those unlawfully imposed PRS  terms after the defendants know it had been ruled that the imposition violated federal law.

On remand, the district court granted plaintiffs' motion to certify the case as a class action, and after the parties had cross-moved for summary judgment, denied the defendants' motion for summary judgment on the basis of qualified immunity and granted plaintiffs' cross-motion for summary judgment holding the defendants' personally liable.

After  the defendants had filed a notice of appeal, but before their brief was filed, the district court granted plaintiffs' motion to deem the appeal frivolous, which would have enabled the district court to retain jurisdiction and proceed with a trial on damages notwithstanding the trial.  The defendants' moved for a stay, and the Second Circuit stayed the proceedings in the district court pending the appeal.

The Second Circuit held that the defendants were not entitled to qualified immunity because they were aware of the holding of Earley and had not taking objectively reasonable steps to comply with the case.  Indeed, the Court was not sure that the defendants would ever have complied had it not been for the actions of the New York State Court of Appeals.

The decision of the Second Circuit in Betances v. Fischer can be found here.