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US v. Soto-Sanchez, 08-3541, concerned a challenge to the district court’s application of a sixteen-level enhancement to a defendant’s offense level under U.S.S.G. section 2L1.2 based on his prior conviction for attempted kidnapping, in a prosecution of defendant for illegal reentry into the United States after deportation. In affirming, the court held that the six offenses punished by Michigan’s former kidnapping statute either fall within the generic, contemporary meaning of kidnapping or have an element involving the use of force, and as such, under the categorical approach, the court cannot look beyond the statute as defendant was necessarily convicted of a crime of violence within the meaning of U....

Eddie Bauer, the struggling outdoor retailer, got some more bad news last Friday, when the Ninth Circuit ruled that a consumer’s ADA lawsuit against the company had been wrongly dismissed. Chris Kohler, a disabled man who relies upon a wheelchair for mobility, had sued Eddie Bauer for violations of the ADA. The district court had concluded that Kohler needed expert opinions to determine whether conditions constituted ADA barriers. That’s wrong, the Ninth Circuit ruled, emphasizing that non-expert estimations are perfectly acceptable in ADA suits....

A D.C. Circuit Court of Appeals panel recently held that e-cigarettes will have to undergo significant FDA scrutiny under the Tobacco Control Act’s “modified risk" product standard, blowing away an industry group’s First Amendment challenge like so much mango-flavored vapor. “Indisputably Highly Addictive" and “Pos[ing] Health Risks" It’s hard to measure the damage vaping is doing to Americans. While the research is ongoing, we do know that nicotine itself is harmful, particularly for adolescents and young adults....

In an arbitration dispute, district court judgment is affirmed where: 1) the present court has jurisdiction over defendant’s appeal as an interlocutory appeal from the order denying arbitration was appropriate under Federal Arbitration Act sec. 16(a)(1); and 2) the district court properly denied the motion to compel arbitration as the operative complaint contained no arbitrable claim. Read French v. Wachovia Bank, No. 08-2197 Appellate InformationAppeal from the United States District Court for the Eastern District of Wisconsin....

Megan McCafferty began working at a McDonald’s franchise owned by Preiss Enterprises (“Preiss”) at the age of 15, though she stated that she was 16 on her application. About two months into her employment, she went on a two-day bender involving drugs, alcohol and sex with Jacob Peterson, her shift leader/shift manager. After Megan was found, she was admitted to the hospital for drug dependence and psychiatric evaluation. She did not show up to her scheduled shifts at Preiss, and did not let them know what was happening, so she was treated as having quit her job at Preiss....

In an action by a competitive local exchange carrier alleging that defendants, as commercial mobile radio service (CMRS) providers, failed to properly compensate plaintiff for terminating their calls on plaintiff’s network, dismissal of the complaint for lack of jurisdiction is affirmed where plaintiff did not have a private right of action to seek compensation from CMRS providers in federal court. Read N. County Comms. Corp. v. Cal. Catalog & Tech., No....

In the ironically-named case of Brown v. Board of Ed., a teacher who was suspended from his position for using the N word in his classroom (for educational purposes) has no First Amendment claim, according to the recent Seventh Circuit ruling. Also, for related reasons, the court says the teacher suffered no violation of his due process. It’s Brown v. Board of Education again, but it still has yet another layer of appeal left to go....

The Yellowstone Club was to be one of the most ornate ski resorts in the West, a snowbound Shangri-la for the super rich described by The New York Times as “a ski community where there’s no such thing as too much.” That is, until the plan collapsed, with the club defaulting on loans worth hundreds of millions of dollars and the developer, Tim Blixseth, accused of misusing funds to support his extravagant lifestyle....

In US v. England, No. 09-2500, the Seventh Circuit faced a challenge to the district court’s imposition of a 210-month sentence, in defendant’s third appeal of his sentence from his conviction for being a felon in possession of a firearm and obstruction crimes. However, the sentence is reasonable and, although there was confusion in the second hearing about the district court’s reliance on a finding that defendant would have attempted murder had he not been incarcerated, the district court cleared up that issue at the third sentencing hearing by explicitly stating that it was not relying on that finding....

President Obama nominated Oklahoma Judge Robert Bacharach to a seat on the Tenth Circuit Court of Appeals on Tuesday. Judge Bacharach, who currently serves as a federal magistrate judge in Oklahoma City, will replace Judge Robert Henry. Judge Henry left his post as Chief Judge of the Tenth Circuit Court of Appeals in 2010 to accept a position as President and CEO of Oklahoma City University, reports Tulsa World. After law school, Judge Bacharach clerked for two years for Tenth Circuit Court of Appeals Judge William J....

On January 13, the U.S. Supreme Court ruled on the Occupational Safety and Health Administration’s (OSHA)’s vaccine mandate. We anticipated the quick ruling following oral arguments, which the court held on January 7 in an unusual special session. To Jab or Not To Jab? So jab or no jab, as it were? It’s been widely reported that the court struck down the mandate. That may be the ultimate practical effect, but that’s not quite what happened....

In plaintiff’s suit against BP alleging Petroleum Marketing Practices Act (PMPA), RICO, fraud, breach of contract, and extortion claims arising from BP’s termination of its franchise relationship with plaintiff at his two BP gas stations, judgment in favor of BP is affirmed where: 1) BP acquired knowledge of plaintiff’s failure to comply with a franchise provision when he stopped cooperating with BP’s investigation, so notice was timely; and 2) dismissal of plaintiff’s claims under RICO and common law fraud is affirmed because the allegations in the complaint did not sufficiently state a claim on either count....

Michael Patterson ran a small psychiatric practice in Memphis, Tennessee, with a fairly large side business in selling prescriptions for Percocet, Vicodin, and Adderall , among other drugs. The law eventually caught up to Patterson and he was charged with 38 counts of improperly distributing controlled substances and pleaded guilty to three of those. Patterson contested his sentence on appeal, arguing that the district court had improperly assumed that his prescriptions weren’t medically justified and unjustly categorized him as an organizer or leader of the drug dealing scheme....

Petitioner’s petition for review of the BIA’s denial of his application for voluntary departure is denied where Petitioner’s prior conviction for fraudulent use of identification constituted a crime involving moral turpitude, and thus he was ineligible for voluntary departure. Read Serrato-Soto v. Holder, No. 08-4063 Appellate Information Submitted: April 23, 2009 Decided and Filed: May 28, 2009 Judges Opinion by Judge Suhrheinrich Counsel For Petitioner: Barry L. Frager, The Frager Law Firm, P....

The Tenth Circuit decided six cases today, four relating to criminal matters, one regarding a prisoner’s exhaustion of administrative remedies, and one concerning bad faith allegations against an insurer. In Roberts v. Printup, No. 08-3189, plaintiff brought suit against an insurer, claiming that it negligently failed to implement a system for evaluating settlement offers from injured parties. The district court entered judgment for defendant after a bench trial. The Tenth Circuit reversed, holding that it was foreseeable to defendant that its negligence in failing to implement a system to handle reasonable time-sensitive settlement offers from an injured party could result in a lawsuit being filed against its insured....

Owner-Operator Indep. Drivers Ass’n v. Mayflower Transit, LLC, 08-1673, involved a suit by owner-operators of leased trucks against a carrier pursuant to 49 U.S.C. section 14704(a)(2), claiming that a chargeback violates 49 C.F.R. section 376.12(i), which provides that the lessor is not required to purchase or rent any products, equipment, or services from the authorized carrier as a condition of entering into the lease arrangement. The court remanded district court’s dismissal of some of the claims after concluding that the statute of limitations is two years as neither section 14704(a)(2) nor any other statute sets a period of limitations for suits on its authority....

Tech-savvy law firms have at least three distinct traits: They use technology efficiently in their practice They have technically competent personnel They practice in areas that use their tech-spertise So now that you know, what’s the point in reading more? Uh, because most law firms only think they are tech-savvy. Technology Efficient Small and mid-size firms, in particular, often lack the basic technology to maximize revenue and be efficient. That’s why studies say lawyers bill less than 30 percent of their working day....

You’ve probably seen someone walking with a service dog at some point. But emotional support squirrels might be new to you. So too, emotional support pigs. And you may not be familiar with therapy kangaroos. Therapy kangaroos? Yes, therapy kangaroos. The expanding zoology of service, therapy, and emotional support animals can put small business owners in a bind. You want to be as accommodating as possible, especially to any customers that may have disabilities....

Establishment Clause Challenge to War Memorial In Trunk v. City of San Diego, No. 08-56415, an Establishment Clause challenge to a cross on a war memorial, the court reversed summary judgment for defendants where the district court erred in declaring the memorial to be primarily non-sectarian, because a few scattered memorial services before the 1990s did not establish a historical war memorial landmark such as those found in Arlington Cemetery, Gettysburg, and the Vietnam Veterans Memorial in Washington, D....

Defendant’s drug conspiracy conviction is affirmed where: 1) sharing a common supplier, without more, did not demonstrate that two drug dealers were acting together for their shared mutual benefit; and 2) the mere introduction of a common supplier, made by one drug dealer to another, was not sufficient to create a single conspiracy among all the dealers, but these errors did not affect defendant’s substantial rights. However, defendant’s sentence is vacated where the jury’s determination of drug quantity was clearly erroneous because it was based on an unsupported tripartite conspiracy....