Federal Judiciary

Lynne Stewart is screwed. Lynne

Posted on November 18, 2009
Lynne Stewart is screwed. Lynne Stewart, attorney for radicals and terrorists (allegedly), is now in deep trouble. The Second Circuit has affirmed her conviction and has even suggested that the District Court may have been too lenient. It probably didn't help that she stated that she could do the two-and-a-half-year sentence "standing on her head...

Cautionary Tale. Not from the

Posted on October 16, 2009
Cautionary Tale. Not from the Second Circuit, but of interest to appellate practitioners is the decision in Espitia v. Fouche. The Wisconsin Court of Appeal sanctioned a litigant for an citation error.The decision in the case can be found here. The relevant portion of the decision is in paragraph 5.

Aiding and Abetting Alien Torts.

Posted on October 06, 2009
Aiding and Abetting Alien Torts. The Second Circuit has set a high bar for foreign plaintiffs attempting to use U.S. courts to hold foreign defendants accountable for aiding and abetting human rights violations in foreign lands. Such a defendant may only be found liable if he or she "purposefully" aided and abetted a violation of international law...

Global warming. The Second Circuit

Posted on September 22, 2009
Global warming. The Second Circuit reinstated lawsuits brought by New York State and others who challenged major utilities on carbon dioxide emissions from coal-burning power plants, holding that there was no need for the District Court to defer to the political branches and refrain from hearing the suit until there is a definitive policy statement on global warming from Congress and the President...

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Superior respondeat (or something).

Posted on September 14, 2009
Superior respondeat (or something). The Second Circuit has held that an employer may be held liable for discrimination by third parties, including independent contractors authorized by the employer to make hiring decisions on its behalf.The decision in Halpert v...

Internet radio. The Second Circuit

Posted on August 24, 2009
Internet radio. The Second Circuit is the first appellate court to determine whether a webcasting service that provides users with individualized internet radio stations, the content of which can be affected by the users ratings of songs, artists and albums, is an interactive service under 17 U...

Another certified question. The

Posted on July 27, 2009
Another certified question. The Second Circuit, in Zakrzewska v. New School, certified the following question to the New York State Court of Appeals:Does the affirmative defense to employer liability articulated in Faragher v. City of Boca Raton and Burlington Industries v...

Admission to U.S. Denied. Tariq

Posted on July 20, 2009
Admission to U.S. Denied. Tariq Ramadan was denied admission into the United States because he had made a donation to a charity that had supplied funds to Hamas and that such contributions were "material support" to a terrorist organization (the charity)...

Regular Seller. The plaintiff

Posted on June 18, 2009
Regular Seller. The plaintiff who was injured by a machine sought to sue the company that sold it to him under a theory of strict liability. In order for the seller, who had sold the machine, second hand, to be liable, he would have to be a regular seller...

Answer to Certified Question.

Posted on June 17, 2009
Answer to Certified Question. The Second Circuit had certified a question to the New York State Court of Appeal. The question, as modified by the Court of Appeals asked whether, under New York law, a non-custodial parent retains decision-making authority pertaining to the education of his child where (1) the custodial parent is granted exclusive custody of the child and (2) the divorce decree is silent as to the right to control such decisions...

Sanctions. The Second Circuit

Posted on June 09, 2009
Sanctions. The Second Circuit has said, "Enough is enough" to plaintiff Bernard P. Gollomp and his attorney, James Morgan, who have been litigating a case in various permutations for eleven years. In Gollomp v. Spitzer upheld an award of sanctions against the plaintiff and his attorney for their repeated "frivolous and vexatious" claims against the state...

Forum Selection Clause. A forum

Posted on May 19, 2009
Forum Selection Clause. A forum selection clause in the contract at issue in Yakin v. Tyler Hill Corp. provided for litigation in Nassau County. At the time the contract was executed, there was a federal court in Nassau County as well as a state court...

Abuse of discretion. The Second

Posted on April 22, 2009
Abuse of discretion. The Second Circuit has held that abuse of discretion is the appropriate standard of review to apply to a district court's ruling on a motion to reduce a sentence, pursuant to 18 U.S.C. 3582(c)(2).The decision in Unites States v. Borden can be found here.

Googled. The Second Circuit has

Posted on April 05, 2009
Googled. The Second Circuit has ruled that Google must face a trademark infringement lawsuit for selling keywords that trigger ads. The decision in Rescuecom v. Google can be found here.

New Judge. President Obama has

Posted on April 02, 2009
New Judge. President Obama has nominated District Judge Gerard Lynch of the Southern Distirct of New York for a seat on the Second Circuit.

No bail. Bernard Madoff will remain

Posted on March 21, 2009
No bail. Bernard Madoff will remain in prison pending sentencing. The Second Circuit summary opinion, affirming District Judge Denny Chin's order can be found here.

Where's Heidi? A few years ago,

Posted on March 18, 2009
Where's Heidi? A few years ago, I had adopted a law student blogger, Heidi Bond. She went on to clerk for Judge Alex Kozinski in the Ninth Circuit and Justice Sandra Day O'Connor on the Supreme Court (OK, Justice O'Connor was retired by that time, but working for a retired justice still means that you are working on important Supreme Court matters...

Irreparable injury. Irreparable

Posted on March 09, 2009
Irreparable injury. Irreparable injury is not presumed in a trade secret case, where the owner of a trade secret is not alleging that the party that has wrongful possession of such a secret is planning on disseminating the secret to a wider audience...

Collapse. The Second Circuit is

Posted on February 19, 2009
Collapse. The Second Circuit is usually not shy to certify unclear questions of New York law to the New York State Court of Appeals. But in Dalton v. Harleyville Worcester Mutual Ins. Co. it declined to do so. The definition of what constitutes a "collapse" of a building had not been decided by the Court of Appeals, and the Second and Third Departments of the Appellate Division have taken different views...

Calorie Counting. The Second Circuit

Posted on February 17, 2009
Calorie Counting. The Second Circuit has upheld New York City Health Code 81.50, which requires roughly 10% of the restaurants in New York City, including chains such as McDonlads, Burger King and Kentucky Fried Chicken, to post calorie content information on their menus and menu boards...

Champerty -- Certified Questions.

Posted on February 16, 2009
Champerty -- Certified Questions. In Trust for Certificate Holders of the Merrill Lynch Mortgage Investors Pass-Through Certificates Series 1999-C1, by and through Otix Capital Markets, LLC, as Master Servicer and Special Servicer v. Love Funding Corp...

Aggravated Felony. The Second

Posted on December 23, 2008
Aggravated Felony. The Second Circuit held that a state law drug conviction for a small quanity of marijuana was not an aggravated felony, warranting deportation. To make such a determination, the court looked to whether the offense was equivalent to felony drug traficking under the federal Controlled Substance Act ("CSA")...

No New Hearing. In a habeas proceeding,

Posted on December 09, 2008
No New Hearing. In a habeas proceeding, the district rejected the credibility determinations of the magistrate judge without holding a separate evidentiary hearing. Not a good idea. The Second Circuit vacated the ruling (granting the habeas relief) and remanded it to the district court for further proceedings...

Discovery in an Arbitration. The

Posted on November 26, 2008
Discovery in an Arbitration. The Second Circuit held that section 7 of the Federal Arbitration Act does not authorize an arbitrator to compel pre-hearing document discovery from non-parties to the arbitration.The decision in Life Receivables Trust v...

Caught in the legal recession?

Posted on November 20, 2008
Caught in the legal recession? Well, I try not to go off topic, but when the ABA asks for help, who am I to withhold it?The ABA Journal is surveying lawyers about the job market and the current state of the economy. Here is the link: http://www.surveymonkey...

Swastica tatoos. The Second Circuit

Posted on November 19, 2008
Swastica tatoos. The Second Circuit held that it was a violation of the Confrontation Clause for a District Court to prevent a minority-group defendant from cross-examining a government witness about his swastica tatoos.The decision in United States v...

Purchase Money Obligation. The

Posted on November 04, 2008
Purchase Money Obligation. The Second Circuit has asked the New York Court of Appeals to construe the term "purchase money obligation" as it is used in UCC 9-103(a)(2). The Court needs the answer to this certified question so that it can determine what status in bankruptcy should be accorded to the "negative equity" that someone who trades in an old car rolls over into a new car-financing contract...

Erasing a Sanction. The Second

Posted on October 23, 2008
Erasing a Sanction. The Second Circuit has held that parties cannot condition the settlement of an action on the District Court's vacatur of an award of sanctions against a party's attorneys. The decision in ATSI Communications, Inc. v. Shaar Fund, Ltd...

Executives. In answer to a certified

Posted on September 08, 2008
Executives. In answer to a certified question, the New York State Court of Appeals has held that an executive is an employee under the New York Labor Law, article 5, except where expressly excluded. The Court of Appeals further held that section 193 of the Labor Law did not prevent the parties from entering into a contract where a commission was not "earned" until after certain deductions were made from her percentage of gross billings...

KPMG Employees Off the Hook. The

Posted on September 03, 2008
KPMG Employees Off the Hook. The Second Circuit has upheld the dismissal of the indictments of eleven partners and employees of accounting firm KPMG, LLP because the government had caused KPMG to put conditions on the advancement of legal fees to the defendants...

Certified question. In an action

Posted on August 28, 2008
Certified question. In an action brought under the Individuals with Disabilities Education Act, a father brought an action seeking relief on behalf of him and his disabled son. Because he was the non-custodial parent, the distirict court held that he did not have standing to bring the action...

Absentee Ballot. The Second Circuit

Posted on August 25, 2008
Absentee Ballot. The Second Circuit reversed the District Court's decision dismissing a complaint claiming that the New York State Board of Elections violated the plaintiffs' Fifth Amendment rights by failing to provide for absentee ballots in elections for polical party county committees, while providing them for all other kinds of elections...

Steinbeck. The Second Circuit has

Posted on August 14, 2008
Steinbeck. The Second Circuit has reversed a ruling that awarded John Steinbeck's son and granddaughter publishing rights to 10 of the author's early works, including 'The Grapes of Wrath.The decision in Penguin Group (USA) Inc. v. Steinbeck can be found here...

Modest success. The Second Circuit

Posted on August 12, 2008
Modest success. The Second Circuit has held that the district court was proper in reducing a request for attorneys' fees in a case brought under the Fair Labor Standanrds Act from $340,375 to $49,889 in light of the limited successs acheived by the attorney...

Another certified question. The

Posted on August 06, 2008
Another certified question. The Second Circuit has asked the Court of Appeals for its view on another question. The certified question is:Does New York General Obligations Law 15-301(1) abrogate, in the case of a contract where the second of two irreconcilable provisions requres that any modifications to the agreement be made in writing, the common law rule where two contractual provisions are irreconcilable, the one appearing first in the contract is to be given effect rather than the one appearing subsequent?The decision in Israel v...

Waiving Doctor-Patient Privilege.

Posted on July 20, 2008
Waiving Doctor-Patient Privilege. The Second Circuit granted a writ of mandamus and reversed an order that required a prisoner's psychiatric records to be disclosed in a case where the prisoner brought a 1983 action alleging that correctional officers used excessive force on him...

Evidence after summations. The

Posted on July 17, 2008
Evidence after summations. The Second Circuit, in United States v. Crawford, held that the district court had abused its discretion in reopening the record after summations to allow the posecution to put in additional evidence.The decision in this case can be found here.

Cash-based defined benefit plans.

Posted on July 15, 2008
Cash-based defined benefit plans. The Second Circuits, joining the other circuits that have considered the issue, has held that cash-based defined benefit plans do not inherently result in age-based reduction in the rate of benefit accrual and do not violate ERISA...

Prerequisite. The Second Circuit

Posted on July 06, 2008
Prerequisite. The Second Circuit has held that it is not a prerequisite to liability under the Americans with Disabilities Act to request an accommodation when the employer is aware of its employee's disability or the disability is apparent. The decision in Brady v...

Can there by corporate scienter

Posted on June 29, 2008
Can there by corporate scienter without scienter of a corporate agent? The Second Circuit says yes, at least at the pleading stage. The Court, in Teansters Local 445 Freight Division Pension Fund v. Dynex Capital Inc. found that the requisite strong inference of scienter of the corporate defendant had not been made, and vacated the District Court's order denying the motion to dismiss and remanding the case to the District Court...

We have discretion? Evidently

Posted on June 25, 2008
We have discretion? Evidently not all district judges are aware that they have discretion to depart from the sentencing guidelines range. Because of this, a crack coclaine defendant will get a chance for a lower sentence. It was unclear whether his judge was one of those clueless judges...

Fraudulent conveyance. The Second

Posted on June 23, 2008
Fraudulent conveyance. The Second Circuit has held that a federal securities receiver may not employ New York Debtor and Creditor Law section 276 to set aside a fraudulent conveyance where he represents only the transferor.In addition, the Court held that a third party who claims a right to certain property held by the receiver is entitled to a jury trial under the Seventh Amendment...

Recusing for Mukasey. The Justice

Posted on June 12, 2008
Recusing for Mukasey. The Justice Department does not have to recuse itself from representing the Untied States in an appeal from former-District Judge Michael Mukasey. The Court noted that if Mukasey is not participating in the appeal that is sufficient...

Chutzpah. In United States v.

Posted on June 02, 2008
Chutzpah. In United States v. Habbas, we have two gentlemen who conspire to frame a man for a crime that could put him behind bars for life. They were caught and entered into plea agreements. One of these "gentlemen" argued that the government had breached the plea agreement by arguimg for a higher sentence than the non-binding estimate it made in the plea agreement...

Student's First Amendment rights.

Posted on May 29, 2008
Student's First Amendment rights. The Second Circuit upheld a denial of an injunction to void the election of a Seniro Class Secretary and ordering the school to have a new election in which the plaintiff's daughter would be allowed to participate. The daughter had been disqualifed from the election because she posted a vulfar and misleading message about the supposed cancellation of an upcoming school event on an independently-operated, publicly accessible blog...

Civil First. The Second Circuit

Posted on May 27, 2008
Civil First. The Second Circuit has held that a tax evader is not entitled to argue his tax position in a civil proceeding before being prosecuted for tax evasion. Not really a shocking holding. Many white collar crimes have a civil claim that can also be brought by the government...

Remand. The Second Circuit has

Posted on May 20, 2008
Remand. The Second Circuit has held that it has the authority to remand an issue of nationality to the Board of Immigration Appeals if the issue had been presented but not decided by the Board. The Government had taken the position that 8 U.S.C. 1252(b)(5), which provides that the Court of Appeals is to decide issues relating to nationality without saying anything about remand, precludes the Court from sending a nationality case back to the BIA...

Solicitor General. Paul Clement

Posted on May 15, 2008
Solicitor General. Paul Clement has resigned as Solicitor General of the United States. It is likely that principal deputy Solicitor General Gregory Garre will close out the Bush administration as acting Solicitor General.

No Jurisdiction. The Second Circuit,

Posted on May 13, 2008
No Jurisdiction. The Second Circuit, based on its prior precedent, found that it did not have jurisdiction to review a claim that an immigration judge erred in its application of law in determining whether an alien's removal would result in "exceptional and extremely unusual hardship...

Right of Action. Under the Vienna

Posted on April 28, 2008
Right of Action. Under the Vienna Convention on Consular Relations, an alien is entitled to be informed of his right to contact his consulate in the event of arrest. The plaintiff in Mora v. People of New York was not so informed and sued under the Alien Tort Statute...

Kelo redux. In an attempt to stop

Posted on April 08, 2008
Kelo redux. In an attempt to stop proposed development of downtown Brooklyn through, in part, the use of eminent domain, the plaintiffs in Goldstein v Pataki claimed that the use of that power, which they claimed, was not for a public purpose and hence violated the Public Use clause of the Fifth Amendment...

Inter-racial marriage. The Second

Posted on April 02, 2008
Inter-racial marriage. The Second Circuit has held that a white person married to a black person may sue under Title VII if his employer takes action against him because of his inter-racial marriage. The decision in Holcomb v. Iona College can be found here.

Congratulations. As regular readers

Posted on March 04, 2008
Congratulations. As regular readers of this blog (if there is such a thing) know, I have the practice of "adopting" a law school blogger. My current adoptee is "Butterflyfish," who blogs on life and law school. She has just been made an editor on the law review of her unnamed law school...

Absolute immunity. The Second

Posted on February 25, 2008
Absolute immunity. The Second Circuit has held that testifying witness in police disciplinary hearings have absolute immunity.The decision in Rolon v. Henneman can be found here.

Certified question. The Second

Posted on February 19, 2008
Certified question. The Second Circuit has certified an interesting question to the New York State Court of Appeals. (Well, they're all interesting to me, but that 's because I'm a Second Circuit geek.) The question is whether, when an injured person brings an action against an insured by serving the party throught the Secretary of State, this service suffices to trigger the insured's obligation to notify his insured under the terms of the policy...

Terror Publicity. The owner of

Posted on February 15, 2008
Terror Publicity. The owner of an ice cream parlor in Park Slope, Brooklyn, who had been convicted of illegally funneling money from the business to Yemen in violation of U.S. law. There had been some publicity about his terror connections, and he was convicted...

Suspension. The Second Circuit,

Posted on February 14, 2008
Suspension. The Second Circuit, in Ruis-Martinez v. Mukasey, has held that the REAL ID Act does not violate the Suspension Clause of the Constitution. The respondents had argued that relief under the Act, with its 30-day limitations period, was not an adquate substitute for relief under a writ of habeas corpus...

Objection. The Second Circuit

Posted on February 07, 2008
Objection. The Second Circuit has held that the objection of the Department of Homeland Security to a petition to reopen a removal proceeding, having nothing to do with the merits, is an insufficient basis to deny the petition.The decision in Melnitsenko v...

Doctor an Employee. While the

Posted on January 29, 2008
Doctor an Employee. While the Court asserted that the issue is fact specific, it held that issues of fact from which a jury could infer that a staff physician was an employee, and not just an independent contractor, and subject to statutes prohibiting sexual harassment...

Conference. Calling all appellate

Posted on January 24, 2008
Conference. Calling all appellate attorneys. I've just been advised that the DRI Appellate Advocacy Seminar will be held on February 28-29, 2008 in Orlando Florida. The program includes:An assessment of the Roberts Court by Supreme Court practitioner Patricia Ann Millett and law professor David Stras...

Straying. A sentence which strayed

Posted on January 15, 2008
Straying. A sentence which strayed from the terms of a plea agreement warranted setting a hearing before the District Court on the issue of sentencing. The summary order issued in United States v. Leonardo can be found here. The defendant in this case was a disgraced ex-lawyer, Anthony Leonardo Jr...

Not following Procedures. When

Posted on January 10, 2008
Not following Procedures. When procedures designed to safeguard an immigrant's right to counsel were not followed by the government, the Second Circuit reversed the order of removal imposed by the Immigration Judge and affirmed by the Board of Immigration Appeals...

Immigration Custody. The Second

Posted on January 07, 2008
Immigration Custody. The Second Circuit has held that a person in immigration custody is not "in custody" within the meaning of 28 U.S.C. 2254.The decision in Ogunwomoju v. United States can be found here.

Outlaws. The Second Circuit affirmed

Posted on December 24, 2007
Outlaws. The Second Circuit affirmed the order of the district court granting summary judgment to the Connecticut Department of Corrections, dismissing the action brought against it by correctional officers who had been disciplined for being members of the Outlaws Motorcycle Club...

No immunity. In Gilles v. Repicky,

Posted on December 21, 2007
No immunity. In Gilles v. Repicky, the Second Circuit reversed an order granting summary judgment based on qualified immunity grounds. The Court held that a police officer could not hold an individual after he no longer had reasonable grounds to believe that she had engaged in criminal activity, even if at the time of the stop, he had such grounds...

More certified questions. The

Posted on December 18, 2007
More certified questions. The Second Circuit is putting the New York State Court of Appeals back to work by certifying some more questions. The questions submitted to the New York Court in Reddington v. Staten Island University Hospital are:Does the institution of a time-barred claim pursuant to New York Labor Law 740 simultaneously with a claim pursuant to New York Labor Law 741 trigger section 740(7)'s waiver provision and thereby bar the section741 claim, even if the section 740 claim is subsequently withdrawn?Does the definition of employee in New York Labor Law 741 encompass an individual who does not render medical treatment, and under what circumstances?The decision can be found here.

Unsubstantiated. The Second Circuit

Posted on November 28, 2007
Unsubstantiated. The Second Circuit remanded a case to the district court for resentencing because it was unclear to what extent the district court had impermissibly based its sentencing enhancement on unsubstantiated charged conduct.The decision in United States v...

Terror. The government's search

Posted on November 26, 2007
Terror. The government's search and detention of certain American citizens of the Islamic faith upon their return to the US from Canada where they were attending an Islamic convention that the government believed that terrorists would be attending was held not to violate the Administrative Procedure Act, the Religious Freedom Restoration Act or the First and the Fourth Amendments to the Constitution...

Punitive. The Second Circuit has

Posted on November 21, 2007
Punitive. The Second Circuit has affirmed an award of $1 billion in punitive damages.The damage award was based on the district court's finding that the appellants "engaged in a coordingated campaign of lies and misrepresentation in order to swindle Motorola of more than $2 billion" and that, "threatened with exposure, [appellants] resorted not only to further lies and corporate manipulations, but even to obstruction of justice and, ultimately, misrepresentations to this court...

Answered certified question. In

Posted on November 15, 2007
Answered certified question. In a case involving an alleged molestation of a child by a pastor, the Second Circuit had certified a question to the Vermont Supreme Court. The question was whether under Vermont Law a church is subject to vicarious liability for tortious acts of its pastor under the Restatement (Second) of Agency sec...

Dancing. Well, the Town of Henrietta

Posted on November 12, 2007
Dancing. Well, the Town of Henrietta has found out that you have to be careful when you attempt to close down a teen dance club. You should follow your own rules for taking away a special use permit and you should definitely not make statements that can be seen as racially discriminatory...

Withdrawn. The opinion in Salamon

Posted on November 02, 2007
Withdrawn. The opinion in Salamon v. Our Lady of Victory Hospital, which had been posted on October 29, 2007, has been withdrawn without explanation. An amended decision will be posted. If you must know what this case is about (and, of course, if you read this blog, you probably must), go to Wait A Second! for a description of the case...

Thomas J. Meskill. Senior Circuit

Posted on October 30, 2007
Thomas J. Meskill. Senior Circuit Judge Thomas J. Meskill has died at the age of 79. Before becoming a Circuit Judge, Judge Meskill was a congressman and the governor of Connecticut.

Certified question. The Second

Posted on October 15, 2007
Certified question. The Second Circuit has certified some more questions to the New York State Court of Appeals. The questions are:Whether an '"Executive" is an "employee" under Labor Law, Article 6, section 193 and entitled to the protections of that statute?In the absence of a governing written agreement, when are commissions "earned" and therefore considered "wages" under sections 191 and 193 thereby rendering most subsequent deductions unlawful?The decision in Pacter v...

Retroactive transfer. The Second

Posted on October 09, 2007
Retroactive transfer. The Second Circuit has held that a copyright action brought by a holder of a copyright cannot be defeated by a retroactive transfer by a co-owner of the copyright.The decision in Davis v. Blige can be found here.

Exhaustion. The Second Circuit

Posted on October 02, 2007
Exhaustion. The Second Circuit held that a student had to exhaust his administrative remedies before going to Federal Court even though he was scheduled to graduate before his remedies could be exhausted. The plaintiff in Coleman v. Newburgh Enlarged City School District had the award of attorneys' fees revered because the District Court should have dismissed the action for failure to exhaust...

Guns. The Second Circuit heard

Posted on September 24, 2007
Guns. The Second Circuit heard arguments in City of New York v. Beretta USA Corp., a case involving whether New York City should be able to go to trial in its efforts to force gun manufacturers and distributors to put a lid on the illegal sale of firearms...

Crawford. The Second Circuit upheld

Posted on September 20, 2007
Crawford. The Second Circuit upheld a grant of a petition for habeas corpus, holding that Gregg Becker's Sixth Amendment right of confrontation had been violated by the admission of 11 guilty plea allocutions at his trial. The Supreme Court in Crawford v...

Solomon Amendment. The Second

Posted on September 18, 2007
Solomon Amendment. The Second Circuit has held that the Solomon Amendment, which withholds certain federal funding to universities of which any part does not allow military recruiters, does not violate the First Amendment rights of the faculty of a university...

Fraternal. A fraternity tried

Posted on September 17, 2007
Fraternal. A fraternity tried to prevent the College of Staten Island from inforcing its policy of not recognizing student groups that discriminate on the basis of sex. The district court had granted a preliminary injunction, but the Second Circuit held that the balance of interests favored the College and reversed...