Posts

For one criminal defendant, the reaction of a drug dog was the tipping point that gave law enforcement probable cause for the dog’s sniff search, at least according to the Eighth Circuit. That sniff search was successful in locating a few kilograms of cocaine, which resulted in the defendant taking a conditional plea of guilt to a drug trafficking charge, pending resolution of an appeal of his motion to suppress. And in the United States v....

The Eighth Circuit’s Court of Appeals affirmed a lower court ruling against Hasenwinkel, a registered nurse who sued her former employer on claimed violations of the Family Medical Leave Act (FMLA). In affirming the lower court’s decision, the circuit court found that not only did Hasenwinkel’s employer comply with federal law, but that it gave her three times more time than was required under the FMLA. Bonnie Hasenwinkel was hired as a nurse in the summer of 2007 by Mosaic, a company that operates in-home care and nursing-care facilities for adults with mental disabilities....

In an action claiming that defendant insurer was bound by the terms of an excess insurance policy it had issued to contribute to the satisfaction of a state-court judgment of liability in a personal injury action against two entities for whom the insured had been a contractor, summary judgment for plaintiffs is reversed where the district court erred in deciding that the state-court judgment established legal liability against the insured....

A Ninth Circuit Court of Appeals opinion proved to be kryptonite to an attorney’s privilege defense in a Superman lawsuit this week. The San Francisco-based court ruled that attorney Marc Toberoff waived his attorney-client privilege over stolen documents once he revealed the nature of the documents to officers investigating the theft. David Michaels, a former Toberoff associate, stole documents detailing the arrangement from Toberoff, and sent them to D.C. Comics with a timeline he constructed to reveal Toberoff’s plot to acquire Superman....

We’ve noted that the Sixth Circuit desperately needs to fix its Fair Sentencing Act crack resentencing jurisprudence, and it appears that they will do so soon. Oral argument in the en banc rehearing of Blewett v. United States were heard last week (recordings here), and for the sake of the attorneys and defendants involved in these cases, they really need to fix this. As a quick refresher on the FSA confusion, the court decided Hammond, where it held that the FSA was not retroactive....

Puerto Rico went before the Supreme Court two weeks ago, arguing that it should have the right to restructure its public debts. While the commonwealth is facing a massive debt crisis – the island owes creditors more than $70 billion, about 70 percent of its GDP – federal law prevents it from taking advantage of bankruptcy procedures. That exclusion from the bankruptcy code, the island argues, shouldn’t prevent it from restructuring its debt under its own laws....

You’re all familiar with the “acceptance of responsibility” sentence reduction. Someone cops to the crime and shows remorse, then they get a few levels knocked off their guidelines. Simple enough, right? Robert Chu pleaded guilty to a drug conspiracy charge in a timely fashion. Ordinarily, we’d call that “acceptance of responsibility.” Except, throughout his detention, including the period after his plea, but before sentencing, he made “persistent” attempts to sneak drugs into prison....

This summer, Justice Ruth Bader Ginsburg will finally get her Broadway debut – well, sort of. In July, Justice Ginsburg will take part in a performance of Shakespeare’s “The Merchant of Venice.” The play is being performed in Venice to commemorate the 500th anniversary of the city’s Jewish ghetto. And no, she’s not playing Shylock. Justice Ginsburg will, fittingly, preside over a mock trial of the play’s main characters. Today, “The Merchant of Venice” is one of Shakespeare’s most controversial work....

Back in December of last year, Donald Trump’s Department of Agriculture rolled back nutritional standards for federally-funded school lunch and breakfast programs. Among the changes? Greenlighting chocolate- and strawberry-flavored one percent milk; removing reduced sodium goals; and permitting half of the grains used in menu items to be made from refined white flour rather than whole grains. Well, it turns out some states weren’t too happy with the new guidelines. California, Illinois, Minnesota, New Mexico, New York, and Vermont, along with the District of Columbia, have sued the USDA, claiming the changes were made in an arbitrary and capricious manner and in opposition to Congressional nutritional requirements for school meals....

In a habeas petition alleging that Petitioner sex offender’s pending detainer in one state rendered invalid his civil commitment in another state, the denial of the petition is affirmed where the state court was reasonable in finding that Petitioner remained dangerous because he might serve his time but then re-offend. Read Smith v. Richards, No. 07-35857 Appellate Information Argued and Submitted March 13, 2009 Filed June 23, 2009 Judges Before: William A....

Federal judges are not supposed to be chosen by popular vote, but that doesn’t stop the pollsters. And according to several polls, Brett Kavanaugh is not the people’s choice for the U.S. Supreme Court. That will not likely stop President Trump from applauding his pick, however. In the end, it all comes down to numbers in the Senate, not in the polls. Still, here’s a look at why Kavanaugh is the most unpopular Supreme Court nominee in three decades....

In an action by an Indian tribe claiming that another tribe was fishing outside of its adjudicated grounds, summary judgment for plaintiff is reversed where an injunction issued earlier in the same case was properly interpreted to place the disputed fishing grounds in defendant’s territory. Read Upper Skagit Tribe v. Jamestown S’Klallam Tribe, No. 07-35061 Appellate Information Argued and Submitted October 21, 2008 Filed August 6, 2009 Judges Opinion by Judge Kleinfeld...

Sentence for being a felon in possession of a firearm is vacated and remanded where: 1) defendant’s prior state conviction for engaging in a sexual act with a minor satisfies the standard articulated in Begay and is therefore a violent felony under the residual clause of the Armed Career Criminal Act; and 2) the District Court must consider of remand whether Defendant’s escape conviction constitutes a conviction for a violent felony under Chambers, and whether his two prior state convictions stem from conduct committed on different occasions for purposes of the Act....

The situation is routine: a patient with an ERISA-governed health care plan goes in for a procedure. She signs an assignment form, giving her provider the right to collect payment under her plan directly. The assignment allows the provider to deal directly with the insurer in negotiating payment, taking administrative actions and potentially suing in federal court, should the health care plan refuse to pay for the procedure. That is, except in the District Court of New Jersey, where an unusual intra-district split left district courts divided over whether the assignment for payment also included the right to sue to collect those payments....

The Second Circuit’s Court of Appeals decided to hold off on entering a potentially ground-moving decision involving class actions brought by members The Turtles, the rock group from the 70s. In the suit, they contended that federal copyright laws do not protect sound recordings made before 1972, and that state laws must apply. If true, a favorable ruling would have potentially made bars, restaurants, and other venues mass copyright infringers....

Not sure how to proceed in a Social Security disability benefits appeal when an administrative law judge (ALJ) makes a factual – though possibly harmless – error? The Sixth Circuit Court of Appeals announced Friday that harmless error analysis applies to credibility determinations in the Social Security disability context. Lynn Ulman applied for disability benefits, claiming that she suffered from physical limitations that prevented her from performing her past work (e....

Arizona and harsh immigration laws go together like peaches and cream, Laverne and Shirley, Joe Arpaio and civil rights claims. Arizona’s Proposition 100, approved by voters in 2006, denies bail to undocumented immigrants for a variety of felonies, whether or not the defendant is dangerous or a flight risk. As in: no discretion, never, nuh-uh, nada. No bail for you. Angel Lopez-Valenzuela and Isaac Castro-Armenta sued, calling the law unconstitutional. An Arizona district court found for Arizona, and a three-judge panel of the Ninth Circuit agreed....

NVIDIA Corporation makes a bunch of computer chips, including graphics processing units (GPUs) for all your sweet gaming machines. In 2006, NVIDIA began experiencing problems with some of its chips. NVIDIA initially wasn’t sure what the problem was, and issued software updates to run the fans of its graphics cards faster to cool down the cards. But that didn’t work. Problem Solved, Right? Of course not. In 2008, NVIDIA, as a publicly traded company, filed several forms with the SEC....

For those who can’t make it to the Pasadena courthouse, the Ninth Circuit Court of Appeals has announced that it will have remote showings of four en banc hearings later this month. The cases will be broadcast, via live video and audio feed, from the Pasadena courthouse. They will be viewable at the James R. Browning Courthouse in San Francisco, the U.S. Pioneer Courthouse in Portland, Oregon, and the William K....

As lawyers, we judge one another based on our billable rates. The amount of money a client is willing to pay for our time not only affects how other lawyers view us, it affects how we perceive ourselves. It’s a little twisted. Most BigLaw practitioners accept billable hours at the standard by which lawyers are paid. Accordingly, lawyers spend hours each year refining their days into six-minute increments to quantify their work to clients....