Posts

It’s pretty jarring to think back on what you were able to do a month ago that you can’t do now. Maybe it’s going to the gym or working from your favorite coffee shop. Or maybe it’s aimlessly wandering the aisles at Target, touching more items than you buy. COVID-19 has changed our lives — and our laws — immensely over the past several weeks. Governing bodies have the power to take extraordinary measures to protect public health, as we are seeing in the orders that are being made....

The Stan Smith is a shoe, but not just any shoe. It was “Shoe of the Year,” with 40 million pairs of the adidas brand sold world-wide in 2014. But then Skechers, a relative newcomer in the shoe business, went and took all that glory. A legal battle over the trademark shoe followed, and a trial judge ordered Skechers to stop selling infringing shoes. The U.S. Ninth Circuit Court of Appeals, however, puts its foot down in Adidas America v....

In a tax case where the IRS issued a Notice of Final Partnership Administrative Adjustment based on its determination that the defendants implemented an illegal tax shelter and misstated certain information on its tax documents which resulted in significant tax underpayments, district court did not err in finding that the defendants had reasonable cause for its tax position, and, consequently, that it was not subject to the accuracy-related penalty in 26 U....

The son and daughter of Sondra Bryant, a woman who died after receiving Botox injections, have reached a settlement with Allergan. Bryant, who died at 70 in 2008, had 100 units of Botox injections to treat shoulder pain. Lynne and Bryan Kramer and daughter-in-law Collette Kramer filed the lawsuit and noted that Botox injection therapy for shoulder pain was not an approved treatment by the Food and Drug Administration. They alleged that Allergan had marketed Botox for a host of treatments that were never approved by the FDA....

In an Immigration and Nationality Act section 1447(b) action seeking to have the district court determine plaintiff’s naturalization application, dismissal of the action as moot is reversed where only the district court has jurisdiction to determine a naturalization application when the applicant files a section 1447(b) petition, and thus the United States Citizenship and Immigration Services could not decide plaintiff’s naturalization application after he filed a petition. Read Bustamante v. Napolitano, No....

Should the U.S. Supreme Court rule that states have the right to enforce a violent video game ban, in restricting the sale of violent video games to minors? Would any such restriction be a violation of free speech under the First Amendment? According to a poll by Fairleigh Dickinson University’s Public Mind, fifty-seven percent of American voters think that states should be able to regulate the sale of violent video games whereas thirty-nine percent say that these decisions are best left to the parents....

If you’re going to get a pop star to rep your clothing store, Ariana Grande is not a bad choice. But if those talks fall through, hiring a “strikingly similar” model to take her place might be. Grande is suing Forever 21 for $10 million after she claims the company used a model for a social media campaign who wore the same hairstyle and hair accessory she did in her “7 Rings” video, dressed in a top she’s been photographed sporting, and struck a pose for which the singer is known....

Brett Pensinger, a teen-aged killer who was sentenced to death for the kidnapping and murder of a five-month-old more than 30 years ago, won’t be executed after the Ninth Circuit overturned his death sentence on Tuesday. In 1981, the 19-year-old Pensinger kidnapped a San Bernadino infant and her brother. The brother was dropped off unharmed, but the infant was found murdered and mutilated. Pensinger was subsequently convicted of murder, with a kidnapping and torture enhancement, and sentenced to death....

In an appeal from a bankruptcy court order declining to discharge debtor’s student loan in bankruptcy under 11 U.S.C. section 523(a)(8) based on undue hardship, the order is vacated where it was unclear from the record how the bankruptcy court arrived at its conclusion regarding debtor’s ability to make the required monthly payments. Read Craig v. Educational Credit Management Corp., No. 08-15451 Appellate Information Argued and Submitted June 12, 2009...

Also Decided Today: Suit Over Construction of Resort and Contract Case Hunt Const. Group, Inc. v. Brennan Beer Gorman, No. 08-5603, concerned an action for negligence and negligent misrepresentation against defendant design professionals over allegedly late and erroneous delivery of professional services as part of the construction of a resort. The Second Circuit certified the following questions to the Vermont Supreme Court: 1) Does the economic loss doctrine bar a contractor from seeking purely economic damages against design professionals who allegedly provided negligent professional services in violation of the design professionals’ contractual obligations with a mutual counterparty?...

Trademark Licensing Dispute In FreecycleSunnyvale v. The Freecycle Network, No. 08-16382, a declaratory action arising from a trademark licensing dispute, alleging noninfringement of defendant’s trademarks and tortious interference with plaintiff’s business relations, the court affirmed summary judgment for defendant where defendant: 1) did not retain express contractual control over plaintiff’s quality control measures; 2) did not have actual controls over plaintiff’s quality control measures, and 3) was unreasonable in relying on plaintiff’s quality control measures....

NOTE: This post was updated on February 10, 2021, to include news of the Fulton County investigation. Georgia Secretary of State Brad Raffensperger’s office announced earlier this week that it was opening a probe into former President Donald Trump’s efforts to pressure Raffensperger to overturn the state’s election results. On the heels of that announcement, Fulton County District Attorney Fani Willis notified state officials that her office was opening an investigation into “attempts to influence” the election....

The Sixth Circuit Court of Appeals vacated a Sentencing Guidelines-conforming drug sentence today in USA v. Priester on “the admittedly unfair ground” of the district court’s “insufficient clairvoyance.” Here are the facts in a nutshell. The appellant, Xavier Priester, pled guilty to conspiring to distribute crack cocaine, powder cocaine, and marijuana. At sentencing, Priester’s lawyer argued that the Guidelines’ 100:1 or greater ratio between crack and powder penalties was unfair and asked the district court to ignore it in favor of a “sufficient and just sentence....

Here’s what we know about the Hamid Hayat case. Hayat isn’t the sharpest tool in the shed. As we covered in our discussions of the majority decision and the extremely passionate dissent, he barely has a seventh-grade education. Some strange man shows up to Lodi, California (for those unfamiliar, think ‘Deliverance’ with more sunshine) and becomes his best friend. That “friend” encourages Hayat’s pro-Taliban viewpoints and his boasted plans to attend a training camp - going so far as to chide him for not attending....

In a rather curious turn of events, during the oral argument in the Flowers v. Mississippi case, Justice Thomas broke his three-year silence on the bench and actually asked questions. The case asked SCOTUS to review the jury selection of a criminal trial where the defendant was convicted of murder, which, interestingly (and sadly) had been previously found to have been racially discriminatory. Even more surprisingly, Flowers has been tried six times....

In plaintiffs’ 42 U.S.C. section 1983 action arising after defendant-school district punished their son for creating a fake internet “profile” of his high school principal on MySpace.com, district court’s judgment is affirmed where: 1) district court correctly ruled that the school district’s response to the student’s expressive conduct violated the First Amendment guarantee of free expression as allowing the school to punish him for conduct he engaged in using his grandmother’s computer while at his grandmother’s house would create an unseemly and dangerous precedent; 2) the school cannot punish the student merely because his speech reached inside the school; and 3) district court correctly concluded that the parents have not shown how their liberty interest was infringed by the School District’s violation of their son’s First Amendment right of expression....

When defendant David Glen Heard pleaded guilty in district court to two counts of violating Oklahoma’s lewd molestation statute, he didn’t realize that there may have been viable defenses to the charges against him. The Tenth Circuit, after hearing his appeal, reversed the district court’s denial of Heard’s habeas petition, citing ineffective counsel under the Sixth Amendment. Heard had pleaded guilty to two counts of “knowingly and intentionally looking upon the body or private parts of a child under sixteen in a lewd and lascivious manner,” in violation of Oklahoma’s lewd molestation statute....

In 2005, the gun industry celebrated a major victory when Congress passed a law giving it broad legal immunity in federal and state courts. That law, the Protection of Lawful Commerce in Arms Act (PLCAA), was a response to a flurry of legal challenges contending that gun makers and sellers should be held accountable when their products are used in crimes. Dozens of cities argued that the gun industry created a “public nuisance” through sales practices that allowed guns to be sold easily in illegal secondary markets, where they passed into the hands of people who used them to commit violent crimes....

The question has never been whether the Obama administration would lose in the Noel Canning recess appointments case – it was how badly they would lose. And lose they did, though the damage was limited by a Justice Stephen Breyer opinion that meandered through history to come up with a recess is a real recess if it’s more than three and probably not less than ten unless it’s a really scary vacancy rule....

In a 42 U.S.C. section 1983 action claiming that plaintiffs were unlawfully detained during defendant-officers’ search of their home, district court’s partial denial of qualified immunity to defendants is reversed where, given that officers may search the home of a parolee or probationer without a warrant so long as the officers have probable cause to believe they are at the address where the parolee resides, there is no need to be concerned that a neutral magistrate had not approved the reasonableness of the compliance search....