Posts

While the Internet is going nuts over the Apple e-Book injunction, we couldn’t help ourselves when we came across a gem of a case adjudicating the ownership rights to a shipwreck. That’s right, how often do you get to read about admiralty law? So for fun (and we use that term loosely), we thought we’d cover both … In July of this year, Judge Denise Cote, of the U.S. District Court for the Southern District of New York, found Apple liable for conspiring to price fix e-Books with five major U....

Plaintiffs’ itemized bill of costs submitted pursuant to Federal Rules of Appellate Procedure 39(d) following a judgment of this court vacating and remanding an order of the district court is construed as an appropriate application for costs and thus granted. Read Lafaro v. N.Y. Cardiothoracic Group, PLLC, No. 08-4621 Appellate InformationAppeal from the United States District Court for the Southern District of New York. Argued: March 16, 2009 Decided: August 7, 2009...

When a lawsuit brings both state and federal claims, and all the federal claims are dismissed, and the federal court decides not to exercise supplemental or ancillary jurisdiction over the state law claims, how long does a plaintiff have to file those state law claims in state court? If you answered 30 days, then you’d be right. If you answered, it depends on how long the statute was tolled, you might also be right....

Former Miss Washington USA pageant runner-up Lacey Carroll has dropped her sexual assault charges against David Copperfield. She withdrew her lawsuit against David Copperfield alleging he sexually assaulted her on his private island. Lacey Carroll, model and waitress dropped her federal suit against the magician. The FBI and prosecutors have spent several years investigating the allegations, according to the Associated Press. The dismissal comes two days before Carroll was scheduled to be deposed by Copperfield’s attorneys....

Wednesday was not a shining moment in the history of Supreme Court oral arguments. This was not Paul Clement going punch-for-punch with Justice Souter in Hamdan v. Rumsfeld. It wasn’t even Margie Phelps, a crazed member of the Westboro Baptist Church, winning over the reluctant justices in Snyder v. Phelps. On Wednesday, the Supreme Court heard oral arguments over whether states can penalize drivers who refuse to take warrantless breathalyzer tests....

Thompson v. Frank, No. 08-16982, involved the state’s appeal from a district court’s order staying a habeas petition filed by a Hawaii state prisoner. The Ninth Circuit dismissed the appeal, holding that, because a district court’s conclusion about whether a habeas claim had been exhausted was addressable on appeal after final judgment, the requirements of the collateral order doctrine were not satisfied. As the court wrote: “The State of Hawaii and other respondents appeal the district court’s order staying a 28 U....

The legal battle over transgenders in the military is in the hands of a federal appeals court. The U.S. Ninth Circuit Court of Appeals considered oral arguments in Karnoski v. Trump, which stems from President Trump’s ban on transgenders serving in the armed forces. A trial judge blocked the president’s plan, and the administration appealed. The Ninth Circuit, which is expected to issue a decision in the next two months, is the first appeals court to hear arguments over the ban....

Want to work for the federal judiciary? Now’s your chance! The Second Circuit is currently on the lookout for candidates for a Bankruptcy Judge in the Southern District of New York. The gig lasts for 14 years and starts at $180,012 annually. If that salary is too much for you, the circuit is also looking for lawyers willing to work completely for free! Applications for the circuit’s pro bono panel are currently being accepted....

In an employment termination action brought under the False Claims Act, district court judgment is reversed where: 1) the special status of the United States counsels against reflexive transfer of rules of preclusion from private to public litigation, and thus the resolution of personal employment litigation does not preclude a qui tam action, in which the relator acts as a representative of the public; and 2) plaintiff Lusby’s latest proposed complaint alleged fraud with the requisite particularity, as the accusations were not vague and the complaint showed in detail the nature of the charge....

Convictions and sentences of two defendants for drug conspiracy are affirmed where: 1) the trial court did not commit plain error in admitting prior currency seizure evidence against a defendant; 2) the trial court did not commit plain error in giving limiting instruction with regard to the co-defendant’s testimony of their guilty pleas; 3) the prosecutor’s remarks, even if improper, were not plain error; 4) the district court utilized the correct sentencing procedures and did not place an unreasonable amount of weight on impermissible factors in sentencing a defendant; 5) the evidence was sufficient to conclude that co-defendant intended to join the conspiracy and his conviction was not a miscarriage of justice; 6) the district court did not plainly err in admitting the co-conspirators’ statements against the co-defendant; 7) the drug quantities used in sentencing the co-defendant were supported by a preponderance of the evidence; 8) use of “acquitted conduct” in calculating the co-defendant’s Guidelines range was not a violation of the Sixth Amendment; 9) the assignment of the two-level enhancement for possessing a firearm during commission of the drug conspiracy was reasonable; and 10) co-defendant’s argument that his sentence is unreasonable as compared to his co-defendant’s must fail as many of his co-defendants accepted responsibility and pled guilty, and some had a less substantial criminal history....

District court’s conviction of defendant for being a felon in possession of a firearm and of possessing a mixture containing crack cocaine with the intent to distribute is affirmed as the court did not err in admitting: 1) testimony concerning defendant’s prior drug sales as it was relevant to show that he intended to distribute the drugs he held; 2) testimony from defendant’s girlfriend concerning a statement he made to her about having guns, the admission of which was harmless in light of his admission to the officers that he had stored two guns in her apartment that very morning; and 3) testimony from a police sergeant, even though it might have suggested defendant’s membership in a gang, as the testimony helped establish that defendant had possessed the firearms....

In plaintiff’s ERISA suit against the Illinois CPA Society & Foundation Retirement Income Plan (Plan) for denying his request for a lump-sum distribution, district court’s grant of summary judgment in favor of defendants is affirmed where: 1) the district court applied the correct standard of review to both the administrator’s interpretation of the terms of the Plan and the legal determination of whether the plan violated the anti-cutback provisions of ERISA; 2) administrator’s interpretation of the plan such that a lump-sum benefits was not available to plaintiff prior to Amendment One is well-reasoned and not arbitrary and capricious; 3) Amendment One did not eliminate an “optional form of benefit” and does not violate ERISA’s anti-cutback provision because the plan participants were not entitled, under the Plan, to a lump-sum distribution; and 4) administrator’s decision to deny a lump-sum distribution to plaintiff was not arbitrary and capricious as it would have put the Plan in deficit and would have violated the Internal Revenue Code, thus risking the tax status of the plan for all of its participants....

The Florida Constitution seems to be clear about who runs local schools: “The school board shall operate, control, and supervise all free public schools within the school district.” But when it comes to making decisions about whether students should be wearing face masks when schools open this month, Gov. Ron DeSantis has other ideas. Despite the resurgence of COVID-19 cases sparked by the delta variant, DeSantis is standing firm in opposing any and all face-mask mandates — including those proposed by local school districts....

A case of some interest to appellate attorneys came out of the Sixth Circuit recently that invoked the Constitutional Avoidance Doctrine – avoiding questions of constitutionality when the validity of a law can be determined on other grounds. Though the case is filed under bankruptcy law, it is instructive in several key areas of law practice including statutory construction, affirmation on erroneous reasoning, and the above mentioned “avoidance” doctrine. The Facts Matter Less The debtor in this case was Mildred Josephine Bratt of Tennessee....

Yesterday, we told you about Robert Back, a former employee at Nestlé’s Mount Sterling, Ky. “Hot Pocket” plant. The Sixth Circuit Court of Appeals recently upheld a district court’s dismissal of Back’s age discrimination suit against Nestlé. Back offered two types of evidence to support his claims under the Kentucky Civil Rights Act: Direct evidence and circumstantial evidence. As we discussed previously, the courts ruled that his direct evidence – the Human Resources Director’s alleged statement that upper management had decided to get rid of the three oldest employees – was inadmissible hearsay....

The Minneapolis-St. Paul archdiocese was recently rocked by a massive sexual abuse scandal involving hundreds of claims. The scandal led to a class action lawsuit including over 400 class members. That case settled for $210 million. However, after the case was filed, the archdiocese filed for Chapter 11 bankruptcy, which meant that the $210 million settlement would need to be approved by the bankruptcy court. Fortunately, after a near unanimous vote of 400 of the sexual abuse survivors approved it, the bankruptcy court approved the archdiocese’s reorganization plan, which would provide a payout to each of the survivors....

A Guinean citizen’s petition for review of Department of Homeland Security’s (DHS) administrative order of removal is denied where: 1) the government was entitled to select overstay under the terms of the Visa Waiver Program (VWP) as the ground for removing the petitioner; 2) an alien’s waiver through the VWP of the due process rights to which he or she would otherwise be entitled must be done both knowingly and voluntarily, but here, petitioner cannot establish that he was prejudiced even if he had known what the waiver said; and 3) petitioner’s adjustment-of-status application is barred by his valid VWP waiver or by the fact that in the absence of a waiver he never would have entered the United States in the first place....

More than four years ago, Elizabeth Haskell of Oakland, California, was arrested on suspicion of trying to forcibly free another protester, though she was released without charges. At the time of her arrest, she submitted to a DNA swab under threat of additional charges and jail time. Four years and five months later, her case has now been scheduled for its third trip to the Ninth Circuit, and its second en banc hearing....

Holder v. Humanitarian Law Project, No. 08-1498, concerned a constitutional challenge to 18 U.S.C. section 2339B(a)(1), which prohibits knowingly providing material support or resources to a foreign terrorist organization. The Court reversed the Ninth Circuit’s affirmance of partial judgment for plaintiffs, holding that the material support statute was constitutional as applied to the particular forms of support that plaintiffs sought to provide to foreign terrorist organizations. As the Court wrote: “Congress has prohibited the provision of “material support or resources” to certain foreign organizations that engage in terrorist activity....

Let’s say you know the police chief in your town and he tells you it’s OK to park in a “No Parking” zone. Let’s say that you do and when you come back to your car, there’s a parking ticket tucked beneath your windshield wiper. If you would decide to contest the matter in traffic court, you might have a strong case. That’s because you received permission from a “public authority” to do something that otherwise would be considered illegal....