Federal Judiciary

Not defamatory. The Second Circuit

Posted on November 25, 2009
Not defamatory. The Second Circuit has held that a news report that a prisoner planned to cooperate with prosecutors was not defematory. Cooperating with law enforcement is not a bad thing.The deciison in Michtavi v. New York Daily News can be found here.

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...

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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...

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...

Certified Question. The Second

Posted on June 17, 2009
Certified Question. The Second Circuit has certified two questions to the New York State Court of Appeals:1. Where a worker who is serving as a counterweight on a makeshift pulley is dragged into a pulley mechanism after a heavy object on the other side of a pulley repidly descends a small set of stairs, causing an injury to plainitiff's hand, is the injury (a) an "elevation related injury," and (b) directly caused by the effect of gravity, such that section 240(1) of New York's Labor Law applies?2...

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...

Diversity. The Second Circuit has

Posted on November 20, 2008
Diversity. The Second Circuit has held that CPLR 901(b), which prohibits a lawsuit seeking a statutory penalty from being brought as a class action, can be applied in a federal court sitting in diversity.The decision in Shady Grove Orthopedic Associates, P...

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...

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