News

Case Summaries

Civil Rights

[05/13] Lawrence v. Dep't of the Interior
In an action brought by an Indian tribe member employed by the Bureau of Indian Affairs (BIA) challenging the denial of increased retirement benefits payable to employees whose duties included firefighting, summary judgment for the BIA is affirmed where: 1) the government did not waive the time limit of 5 C.F.R. section 831.906(e) by failing to provide actual notice of the new time limit for filing to current employees; 2) the federal government's trust responsibility toward Indian tribes imposes no special notice obligation beyond that enunciated in the aforementioned rule; 3) the Indian Preference Act does not apply, and the regular provisions of the Civil Service Regulations govern plaintiff as they do any other employee; and 4) summary judgment on a disparate impact claim was proper.

[05/13] Levine v. City of Alameda
In a 42 U.S.C. section 1983 action brought by a city property manager against defendants-city and city manager alleging a due process violation stemming from his lay off, partial summary judgment for plaintiff and defendants is affirmed where the district court did not err in finding that: 1) plaintiff's procedural due process rights were violated and that he was entitled to a full evidentiary hearing before a neutral third-party; and 2) the city manager was not personally liable based on qualified immunity and the city was not liable as a municipality.

[05/13] Garcia v. Brockway
An aggrieved person must bring a private civil action under the Fair Housing Act (FHA) for a failure to properly design and construct within two years of the completion of the construction phase, which concludes on the date that the last certificate of occupancy is issued. (Panel opinion adopted by the en banc court with amendments)

[05/13] Lash v. Hollis
In a civil rights action arising from injuries sustained during an arrest wherein jury awarded damages as well as attorney's fees, denial of a motion for a new damages-phase trial is affirmed, but the attorney's fees award is vacated and remanded, where: 1) the district court did not err in finding that plaintiff's evidence was insufficient to show that defendant's action in subduing him with a Taser induced or contributed to his rhabdomyolysis; 2) Missouri's sudden onset doctrine was inapplicable to underlying case, which involved multiple possible causes, rather than one alleged event preceding the harm; but 3) the record was unclear as to whether the district court considered the relationship between plaintiffs' successful and unsuccessful claims or overall degree of success obtained in determining the fee award.

[05/13] S&M Brands, Inc. v. Cooper
In an action involving the Tennessee's Attorney General's enforcement of an amended escrow provision in the Master Settlement Agreement between various states and tobacco manufacturers alleging an impermissible retroactive effect in violation of due process, a summary judgment ruling is reversed and remanded with instructions to dismiss the case without prejudice on grounds of sovereign immunity where: 1) continuous application of the retroactive statute is unlikely; 2) states enjoy immunity in federal court for tax-related claims; 3) the inherent dignity of the sovereign state favors immunity; and 4) the semi-tax nature of the escrow system would better lend itself to a suit in state court.

[05/12] Fischer v. Forestwood Co., Inc.
In an action raising claims for unlawful discharge, retaliation, and failure to hire, summary judgment for defendant is affirmed in part as to the unlawful discharge and retaliation claims, but reversed and the case remanded as to the failure to hire claim, where: 1) plaintiff was not fired since he voluntarily left the company; 2) the level of harassment plaintiff experienced because of his religion and his resignation in protest of another employee being discharged did not rise to the level of constructive discharge; 3) a taped conversation between plaintiff and the deceased president of the company constituted an admission by a party opponent and was admissible; and 4) the tapes showed sufficient evidence of a failure to hire claim to survive summary judgment.

[05/12] Jacobs v. Clark County Sch. Dist.
In a case raising constitutional challenges to a public school district's mandatory dress policies or "school uniform policies," the circuit court rules that neither the school district's regulation, which created a standard dress code for all county students, nor the individual school uniform policies implemented thereunder violated plaintiffs' free speech, free exercise, or due process rights.

[05/12] Harden-Bey v. Rutter
In a 42 U.S.C. section 1983 action against several employees of the Michigan Department of Corrections challenging plaintiff's placement and continued confinement in administrative segregation, dismissal pursuant to section 1997e(c) of the Prison Litigation Reform Act is affirmed in part and reversed in part where: 1) the district court erred in dismissing a due process claim on the ground that the duration of plaintiff's prison discipline, three years and counting, does not affect whether he has a protected liberty interest; but 2) he failed to state a cognizable cruel-and-unusual-punishment claim or a cognizable equal protection claim.

[05/09] McCann v. Tillman
In a Title VII suit against an employer alleging claims of racial discrimination, retaliation, and hostile work environment, summary judgment for employer is affirmed where: 1) the record demonstrated that employee's claims of favorable disparate treatment of similarly situated white employees were inapposite to establish a prima facie case of discrimination; 2) employee failed to meet the burden of showing that the reasons for her employer's actions were actually a pretext for retaliatory conduct; and 3) despite employee's allegations of exposure to offensive derogatory language at work, the evidence presented was insufficient to support a claim of hostile work environment.

[05/06] Fieger v. Cox
In an action alleging vindictive prosecution against Michigan's Attorney General, a state Supreme Court Justice, and the state's Secretary of State, as well as others in the AG's office, dismissal of plaintiffs' claims and imposition of sanctions against them are affirmed where: 1) because the issues raised in a state court were substantially the same as those raised in the district court, because those interests implicated important state interests, and because the plaintiffs had ample opportunity to raise their constitutional challenge in the state proceedings, the district court properly refrained from exercising jurisdiction in this case; and 2) imposing sanctions for plaintiffs' claims against the justice was not an abuse of discretion.

More...

Cyberspace

[04/30] Clark v. Time Warner Cable
The doctrine of primary jurisdiction permits a district court to refer a claim raising a novel and technical question of federal telecommunications policy to the Federal Communications Commission (FCC) for its consideration in the first instance.

[04/21] US v. Arnold
In a criminal prosecution for possession of child pornography, grant of a motion to suppress evidence seized from defendant's laptop while entering the US border at the Los Angeles International Airport is reversed where: 1) the district court's holding that particularized suspicion is required to search a laptop based on cases involving the search of the person was erroneous; 2) there was nothing in the record to indicate that the manner in which officers conducted the search was "particularly offensive" and defendant's analogy to a search of a home based on a laptop's storage capacity is without merit; and 3) the First Amendment does not require a higher level of suspicion for searches of "expressive material."

[04/21] DIRECTV, Inc. v. Rawlins
In a suit by a satellite television provider against a purchaser of illegal decryption devices, denial of statutory damages under the Wiretap Act is vacated and remanded where: 1) a district court's discretion to award or not award damages under the Wiretap Act is not restricted to those cases involving de minimis violations; and 2) the district court abused its discretion by failing to apply the appropriate factors for a violation of the Wiretap Act.

[04/15] USA Choice Internet Servs., LLC v. US
An order granting plaintiff-ISP a refund of communications excise taxes paid from January 1999 through April 2002 on various communication services purchased from local telephone companies is reversed pursuant to the government's challenge where: 1) plaintiff's incoming-only phone lines met the definition of "local telephone service," 26 U.S.C. section 4252(a); and 2) none of the lines at issue fell within the "private communication service" exception, section 4252(d).

[04/11] Symantec Corp. v. Hilgraeve, Inc.
In a patent infringement suit involving a patent disclosing a method of scanning for and detecting computer viruses embedded in data files that are downloaded or copied from a remote server onto a computer, summary judgment of non-infringement of various claims of the asserted patent is vacated as to non-infringement and invalidity where the district court erred in its construction of the claim terms "a method of screening data as it is being transferred," "destination storage medium," "computer," and "computer system". On cross-appeal, the lower court's decision on laches, inequitable conduct, and inventorship is affirmed.

[04/09] Wendler & Ezra, P.C. v. Am. Int'l Group, Inc.
In a defamation case involving postings to an Internet forum, summary judgment for defendant is vacated and remanded where, although the court correctly excluded plaintiff's expert's affidavit, it erred by not ruling on plaintiff's motion to compel.

[04/08] People v. Garelick
Conviction for attempted lewd or lascivious act on a child under 14, attempted distribution or exhibition of harmful matter to a minor, and possession of child pornography is affirmed over claims that: 1) trial court committed a number of errors in its instructions to the jury; and 2) conviction for attempting to send harmful matter over the Internet must be reversed because it constituted a state regulation in violation of Commerce Clause and First Amendment right of free speech.

[04/03] Fair Housing Council of San Fernando Valley v. Rommates.com, LLC
In an action brought against the operator of an online roommate matching website, Roommate.com, alleging violations of the Fair Housing Act (FHA) and state laws, summary judgment for defendant on the FHA claim is reversed where: 1) contrary to the lower court's holding, the Communications Decency Act (CDA) does not immunize Roommate.com for all of the content on its website and in its email newsletters; and 2) a remand was necessary to determine in the first instance whether the alleged actions for which Roommate is not immune violate the FHA.

[04/03] ConnectU, LLC v. Zuckerberg
In an appeal in a dispute about the parties' rights in and to Facebook, an order dismissing the action is reversed where the jurisdictional claim in the amended complaint, which switched the basis of the district court's subject matter jurisdiction from the existence of diversity of citizenship to federal question, warranted full consideration and established federal question jurisdiction.

[03/26] Charles v. Grief
In a 42 U.S.C. section 1983 racial discrimination and employment retaliation suit brought by plaintiff whose job as a systems analyst with the Texas Lottery Commission was terminated by defendant, denial of summary judgment for defendant claiming qualified immunity is affirmed in part and dismissed in part where: 1) the district court correctly determined that, if plaintiff could prove that defendant fired him for his "speech," plaintiff alleged an objectively unreasonable violation of his First Amendment rights because the speech for which he was putatively fired was entitled to constitutional protection; and 2) the circuit court lacked jurisdiction to assess whether defendant's actions were "objectively reasonable". (Substituted opinion)

More...

Entertainment

[05/12] Hollywood v. Superior Court
Recusal against a prosecutor for alleged conflicts of interest, arising out of the prosecutor's consultations with the makers of a motion picture based on the defendant's story, is reversed and the case remanded where: 1) the court of appeal gave no deference to the trial court's findings of fact or its application of law to the facts when it chose to review the case de novo; 2) the possibility that the case might be a capital case did not warrant a heightened form of review; 3) the possible disclosure of confidential information when the prosecutor handed over files to the movie producers did not deprive defendant of a fair trial; 3) the prosecutor did not intend to disseminate an inflammatory portrayal of defendant since the prosecutor cooperated with the movie producers before defendant was captured, and the prosecutor sought to have defendant portrayed as accurately as possible in the movie; 4) the prosecutor had no present financial interest in the movie and the possibility of acclaim in high profile cases is endemic to these kinds of cases; and 5) recusal cannot be based on the totality of the circumstances, since an actual conflict is required beyond judicial condemnation of the prosecutor's actions.

[05/09] Wolf v. Walt Disney Pictures and Television
In a breach of contract action involving Disney's alleged failure to fully compensate for its exploitation of the cartoon characters depicted in plaintiff's novel "Who Censored Roger Rabbit?", judgment for plaintiff including the amount of damages awarded is reversed in part and remanded where: 1) the trial court erroneously allowed the jury to interpret the term "purchaser" in a 1983 agreement when the meaning of that term was not dependent on the credibility of conflicting extrinsic evidence, and thus there was no factual issue for the jury to resolve; and 2) because plaintiff's royalty payments under the agreement did not include any entitlement to the gross receipt of Disney's subsidiaries, the trial court's award of that amount was erroneous.

[04/15] Warner Bros. Int'l Television Distrib. v. Golden Channels & Co.
In a breach of contract case, involving the breach of an agreement between a cable television broadcaster and a company licensing programming, a judgment in favor of the licensing company is reversed and remanded for a damages determination where, contrary to the ruling below, neither party breached. Instead the parties just failed to reach agreement on a new term, and continued performance was conditional on agreement.

[03/28] Aristocrat Techs. Australia Pty, Ltd. v. Int'l Game Tech.
The district court committed no error in its analysis of the means-plus-function limitation in this case involving an electronic slot machine patent when it described the two competing claim constructions proposed by the parties, and made clear that there was virtually no difference between them. Computer-implemented means-plus-function claims require disclosure of a corresponding algorithm, rejecting appellant's contention that no algorithm is necessary.

[03/27] Employers Ins. Of Wausau v. Fox Entm't Group, Inc.
In an action by insurers seeking declaratory judgment that they had no coverage obligations relating to an underlying copyright infringment suit, the "special circumstances" exception to the first-filed rule does not apply to a declaratory judgment filed in the absence of a direct threat of litigation in a forum with at least some ties to the litigation.

[03/25] Manzarek v. St. Paul Fire & Marine Ins. Co.
In an insurance coverage and bad faith lawsuit arising out of two lawsuits involving members of the rock band, The Doors, dismissal of plaintiffs' complaint is reversed and remanded where: 1) the underlying complaints raised at least the potential for coverage under the operative insurance policies; and 2) the district court abused its discretion by not giving plaintiffs an opportunity to amend their complaint.

[03/25] Yari v. Producers Guild of America, Inc.
In an action against the Academy of Motion Pictures and Producers Guild of America in connection with the Academy Awards alleging wrongful denial of the right of fair procedure, breach of fiduciary duty, breach of implied contract, and promissory estoppel, a judgment for defendants is affirmed where: 1) the right of fair procedure does not apply to decisions of private organizations, such as these defendants, in making their own awards; and 2) plaintiff failed to state a cause of action under any of his remaining theories.

[03/25] Bridgeport Music, Inc. v. WB Music Corp.
In one of a number of copyright infringement cases brought by plaintiffs against various defendants in the music-publishing industry, alleging here that a rap song sampled a George Clinton/Funkadelic composition owned by plaintiff, an order awarding attorney's fees and costs to defendant as a prevailing party under 17 U.S.C. section 505 is affirmed where, when viewed as part of the larger landscape of plaintiff's litigation strategy, and despite the objective reasonableness of its royalty-receipt theory, the award was justified.

[03/25] Bridgeport Music, Inc. v. WB Music Corp.
In one of a number of copyright infringement cases brought by plaintiffs against various defendants in the music-publishing industry, alleging here that a rap song sampled a George Clinton/Funkadelic composition owned by plaintiff, an order awarding attorney's fees and costs to defendant as a prevailing party under 17 U.S.C. section 505 is affirmed where, when viewed as part of the larger landscape of plaintiff's litigation strategy, and despite the objective reasonableness of its royalty-receipt theory, the award was justified.

[03/21] Damon v. Moore
In a defamation suit against Michael Moore for non-consensual use of an interview conducted for NBC Nightly News in Moore's "Fahrenheit 9/11" documentary film, dismissal of plaintiff's defamation claims is affirmed where plaintiff's appearance in the documentary was not reasonably susceptible of a defamatory meaning or interpretation under Massachusetts state law.

More...

Environmental Law

[05/13] Beazer E., Inc. v. Mead Corp.
In an on-going contribution claim against defendant under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), wherein the district court denied defendant's motion to dismiss for failure to state a claim and certified the question of whether certain caselaw precedent limited subject-matter jurisdiction over plaintiff's contribution claims under section 113(f)(1), the circuit court finds that: 1) the "civil action" requirement in section 113(f) is an element of the claim, and is not jurisdictional; 2) the district court retained its original jurisdiction to adjudicate the issues in this case; and 3) defendant waived its challenge to the applicability of section 113(f)(1).

[05/09] Sierra Club v. Flowers
In an action challenging a grant of certain "Clean Water Act" ("CWA") mining permits by the Army Corps of Engineers in Florida, summary judgment for plaintiffs is vacated and remanded where the district court: 1) appeared to have predetermined the answer to the ultimate issue based on its own conclusions that mining in the area at issue was a bad thing; 2) analyzed the permitting process with that answer in mind regardless of what the agency concluded and what evidence supported the agency's conclusion; and 3) therefore applied the improper standard of review under the Administrative Procedure Act.

[05/08] U.S. v. Friday
In a prosecution against a member of a Native American tribe for shooting an eagle without a permit in contravention of the Bald and Golden Eagle Protection Act (BGEPA), dismissal of the indictment based on a Religious Freedom Restoration Act challenge is reversed and remanded for trial where the Eagle Act and its regulations are the least restrictive means of pursuing the government's compelling interest in preserving the bald eagle.

[05/08] Charles A. Pratt Constr. Co., Inc. v. California Coastal Comm'n
In an action wherein plaintiff attempted to set aside a decision by the California Coastal Commission denying a coastal development permit under the California Coastal Act, and sought for damages on regulatory taking grounds, judgment denying a petition for writ of administrative or ordinary mandate and dismissing plaintiff's taking claim as unripe is affirmed where: 1) the agency had the ultimate authority to ensure that coastal development conformed to the policies embodied in the state's Coastal Act; 2) the agency's reasons for denying the permit were well supported by the record; and 3) the agency only issued one formal decision which neither foreclosed the question of what development will be allowed, nor precluded plaintiff from submitting other development plans.

[05/07] Moss v. County of Humboldt
In an appeal considering the appropriate level of review under the California Environmental Quality Act (CEQA) for a subdivision project which was initially approved but subsequent delays caused its tentative map to expire, judgment denying landowner's petition for writ of mandate and requiring the preparation of a new environmental impact report is affirmed in part and reversed in part where: 1) the subdivision at issue was not a new project for purposes of CEQA; 2) supplemental environmental review was required based on new information about certain potentially significant impacts; but 3) substantial evidence supported some findings regarding these impacts, while not others.

[05/05] OSI, Inc. v. US
In an action relating to the Air Force's use of certain land, now owned by plaintiff, as a landfill in prior decades, wherein plaintiff raised tort claims under the Federal Tort Acts (FTCA), claims of cost recovery under the CERCLA, and a citizen suit under the Resource Conversation Act (RCRA), summary judgment for government is affirmed where: 1) the district court lacked jurisdiction to hear plaintiff's RCRA citizen suit claim while federal facility remedial action was ongoing; and 2) the remaining aspects of plaintiff's appeal were without merit.

[05/02] Weaver's Cove Enery, LLC v. RI Dep't of Envtl. Mgmt.
Petitions for review seeking a declaration from the circuit court that Massachusetts and Rhode Island waived their rights to deny certification of a proposed dredge-and-fill operation as compliant under the Clean Water Act are dismissed for lack of Article III standing as petitioner failed to show an injury caused by the state agencies that likely would be redressed by the declaration it sought.

[05/02] Islander E. Pipeline Co., LLC v. McCarthy
Petition for review of a decision by the Connecticut Department of Environmental Protection (CTDEP) denying a "water quality certification" for plaintiff to build a natural gas pipeline across the Long Island Sound is denied where: 1) record evidence supported the CTDEP's finding that plaintiff's proffered techniques for installing the proposed pipeline would violate state water quality standards; and 2) based on the record, the CTDEP's denial of certification was not arbitrary, capricious, an abuse of discretion, or not in accordance with law. (Substituted opinion)

[05/02] Islander E. Pipeline Co., LLC v. McCarthy
Petition for review of a decision by the Connecticut Department of Environmental Protection (CTDEP) denying a "water quality certification" for plaintiff to build a natural gas pipeline across the Long Island Sound is denied where: 1) record evidence supported the CTDEP's finding that plaintiff's proffered techniques for installing the proposed pipeline would violate state water quality standards; and 2) based on the record, the CTDEP's denial of certification was not "arbitrary, capricious, an abuse of discretion, or not in accordance with law".

[04/29] Michigan Gambling Opposition v. Kempthorne
In an action alleging that agency approval of a proposed casino violated the National Environmental Protection Act (NEPA) and the unconstitutionality of section 5 of the Indian Reorganization Act (IRA), summary judgment for defendant is affirmed where: 1) defendant did not violate NEPA; and 2) section 5 of the IRA is not an unconstitutional delegation of legislative authority.

More...

Health Law

[05/13] Garcia v. Brockway
An aggrieved person must bring a private civil action under the Fair Housing Act (FHA) for a failure to properly design and construct within two years of the completion of the construction phase, which concludes on the date that the last certificate of occupancy is issued. (Panel opinion adopted by the en banc court with amendments)

[05/13] Acumed LLC v. Stryker Corp.
In a patent case involving a product used to treat proximal humeral bone fractures, dismissal of the action based on claim preclusion is reversed and remanded where defendant conceded that the accused devices were not essentially the same, and thus it failed to meet its burden to show that the infringement claim in the prior action was the same as the infringement claim in the present action.

[05/13] U.S. ex rel Marlar v. BWXT Y-12, LLC
In an action alleging violation of the the False Claims Act and discharge in retaliation for whistleblowing, dismissal of the fraud complaint is affirmed where: 1) plaintiff failed to provide sufficient detail regarding the procedures used to defraud the government; and 2) plaintiff failed to allege facts regarding a false claim presented to the government. However, dismissal of the retaliation claim is reversed and remanded where plaintiff provided sufficient information regarding the retaliatory nature of her discharge.

[05/12] Pardini v. Allegheny Intermediate Unit
In a case involving an attorney-parent who sought attorney's fees in a lawsuit filed on behalf of his daughter pursuant to the IDEA, denial of fees is affirmed where: 1) the court's earlier decision in this case did not decide the issue of whether plaintiffs were entitled to attorney's fees; 2) scope of prior precedent was not limited to representation by an attorney-parent in administrative proceedings only; 3) such precedent governed this appeal, as there was substantial doubt that the case's earlier decisions foreclosed the attorney's fees issue; and 4) plaintiffs were not entitled to recover cost for services other than conductive education.

[05/08] U.S. v. Harper
In an action alleging intentional and negligent misrepresentation by defendant's failure to disclose information in a referral letter, judgment against one defendant is reversed where: 1) the referral letter was not affirmatively misleading since it did not comment nor recommend on the doctor's proficiency; and 2) defendant did not have an affirmative duty to disclose negative facts. As for other defendants, their liability is affirmed, but the case is vacated and remanded in order to determine if there needs to be a re-apportionment of damages between the remaining defendants.

[05/07] Trujillo v. PacifiCorp
In an action brought under the Americans with Disabilities Act (ADA) and ERISA, summary judgment for defendant is reversed and the case remanded where: 1) plaintiffs raised the necessary inference of discriminatory motive to establish a prima facie case of association discrimination through evidence that defendant monitored plaintiffs' son's health care costs, and that defendant was concerned to cut down on overall health care costs; 2) there was temporal proximity between the relapse of the plaintiff's son's cancer and the investigation by defendant for time theft; 3) defendant was not able to present a legitimate business reason since it treated similarly-situated employees differently; and 4) there were several irregularities in defendant's investigation of plaintiffs for time theft.

[05/07] B & H Med., L.L.C. v. ABP Admin., Inc.
In an antitrust case involving the legality of an agreement which established an exclusive network of preferred providers to supply types of medical equipment to enrollees in certain health-benefits plans offered to Chrysler, Ford, and state employees and retirees, a judgment and sanctions against plaintiff whose application to the network was rejected are affirmed, and appellate sanctions imposed, where: 1) plaintiff's antitrust claims lacked any conceivable merit; 2) a challenge to a discovery order failed; and 3) sanctions imposed below were not an abuse of discretion, and further, appellate sanctions were warranted.

[05/06] Steed v. Astrue
Denial of social security disability and supplemental security income benefits is affirmed where: 1) substantial evidence supported a finding that claimant retained the capacity to perform light work and suffered only mild degenerative changes to her back; and 2) the ALJ did not err in its evaluation of medical evidence or in discounting claimant's credibility.

[05/02] Doran v. 7-Eleven, Inc.
In a suit against 7-Eleven under the Americans With Disabilities Act (ADA), summary judgment for 7-Eleven is affirmed in part, but vacated in part and remanded where: 1) the district court properly granted summary judgment to 7-Eleven on the issues of whether the store's aisle width and the store's refusal to allow him to access the employees-only restroom violated the ADA; but 2) contrary to the ruling below, plaintiff had standing to challenge the barriers to his wheelchair access in the 7-Eleven store that he learned about through his expert's site inspections. (Superseding opinion)

[05/01] P.A. Bldg. Co. v. City of New York
In a landlord-tenant dispute involving whether asbestos abatement costs incurred by the landlord were "operating expenses" under the relevant terms of a commercial lease, judgment for landlord awarding additional rent due including amount of interest accrued is reversed and remanded where: 1) the underlying asbestos abatement costs were not "operating expenses" within the meaning of "escalation provisions" in the lease agreement; and 2) the interest amount on additional rent due should have been calculated from the date which an audit resisted by the landlord was finally commenced.

More...

Immigration Law

[05/13] Ukpabi v. Mukasey
Denial of a motion for a continuance in a removal proceeding is affirmed where: 1) there was no evidence that an IJ abused her discretion in denying the motion; 2) there was no violation of international law; and 3) there is no due process right to a continuance while a pending visa petition is fully adjudicated.

[05/12] Bennett v. Mukasey
Motion to recall a mandate and reinstate a petition for review of a BIA decision is granted where a lawyer's practice of accepting an initial retainer fee and then deliberately failing to take required action due to non-payment of additional fees, thereby permitting his client's petition to be dismissed, was unacceptable.

[05/12] Mendez v. Mukasey
Petition for review of a denial of cancellation of removal on grounds that petitioner had not demonstrated that his removal would cause exceptional and extremely unusual hardship to his US citizen children is dismissed where: 1) under binding precedential decisions, the determination of whether exceptional and extremely unusual hardship was present for the purposes of cancellation of removal is committed to the Attorney General's discretion; and 2) thus, the circuit court lacked jurisdiction to review such a determination.

[05/08] Bolvito v. Mukasey
Petition for review of an order of removal is denied where an IJ did not err as a matter of law when he determined that petitioner could not claim an earlier priority date based on her mother's change of status to lawful permanent resident since petitioner could no longer be considered a child of the principal alien at that time the change of status occurred.

[05/08] Soumare v. Mukasey
Petition for review of a final order of removal is denied where: 1) the IJ properly found that petitioner's testimony was not credible to support his claim for asylum; and 2) the petitioner failed to corroborate his story with any evidence.

[05/08] Huang v. Mukasey
Petition for review of an order of removal is denied where: 1) petitioners' asylum applications were untimely filed; 2) the court cannot consider the asylum claim since petitioners failed to exhaust their administrative remedies; and 3) petitioners did not present credible evidence as to their claim under the Convection Against Torture.

[05/08] Dedji v. Mukasey
An IJ has broad discretion, in the management of his docket, to enforce deadlines established by local rules, and to deviate from the local rules where: 1) petitioner has demonstrated good cause for the delay; and 2) substantial prejudice would likely result from the enforcement of the deadline. Further, abuse of discretion is the proper standard to apply in reviewing an IJ's decision to establish and enforce filing deadlines for submission of documents.

[05/06] Silaya v. Mukasey
Petition for review of a denial of an application for asylum and related relief brought by a native of the Philippines is granted with respect to the asylum claim where: 1) the rape and physical abuse inflicted on petitioner supported a finding of past persecution under 8 U.S.C. section 1101(a)(42)(A); and 2) the record compelled a finding that petitioner was subjected to past persecution on account of imputed political opinion.

[05/06] Zoarab v. Mukasey
Petition for review of a denial of asylum and related relief is denied where there was little in the record to suggest that petitioner's comments about a soured business deal with a prince amounted to political speech, for purposes of a claim that he was entitled to asylum in light of the circumstances of the monarchical government in the United Arab Emirates, where any expression against the integrity of a royal family member is said to constitute political expression.

[02/29] Singh v. US Dep't of Homeland Sec.
Petition for review of an order removing petitioner on ground that he had committed a crime of moral turpitude, and denying his application for cancellation of removal, is dismissed in part and denied in part where the agency did not err in finding that: 1) the government satisfied its burden to present "clear, unequivocal, and convincing evidence" that petitioner was convicted of a crime of moral turpitude; and 2) the IJ did not exceed his allowable discretion in denying a continuance. (Amended Opinion)

More...

Insurance Law

[05/08] Royal Ins. Co. of Am. v. Orient Overseas Container Line Ltd.
In an action brought by Ford and its cargo insurer against defendant-ocean carrier for damages arising from the loss of cargo during a transatlantic voyage, partial summary judgment for defendant and third-party defendants is reversed where the district court erroneously interpreted the bill of lading to apply Carriage of Goods by Sea Act (COGSA) instead of the Hague-Visby Rules, and additional briefing and fact-finding may be required before the liability limitation may be appropriately applied. (Amended opinion)

[05/08] In Re: Peanut Crop Ins. Litig.
In an action against the government over the indemnification of losses covered by a privately issued and governmentally backed insurance policy, summary judgment for farmers on breach of contract claims is vacated and the case remanded where: 1) the policy did not create any contractual obligation for insurers to indemnify the farmers for lost peanuts in 2002 at a 31 cent quota rate since it was contingent on 2002 farm poundage quota allocations being made to individual farmers, and such allocations were never made; 2) the prevention doctrine was misapplied since the indemnification of the farmers did not depend on the allocation of quotas by the government; and 3) there was no detrimental reliance since government programs are subject to congressional modification, and the farmers had been notified that there would be revisions to the peanut quota program.

[05/02] Dill v. Gen. Amer. Life Ins. Co.
Federal Rules of Civil Procedure 6(b)(2) and 50(b) are non-jurisdictional claims processing rules that provide an affirmative defense to untimely filings if raised, but which can be forfeited if not timely raised.

[05/01] Worth Constr. Co., Inc. v. Admiral Ins. Co.
In a coverage dispute brought by a general contractor arising from injuries sustained by a worker on a staircase installed by a subcontractor, a ruling finding that subcontractor's insurer had a duty of defense and indemnity is reversed where: 1) the victim's injury stemmed from slipping on fireproofing material applied by an entirely separate company unaffiliated with insured-subcontractor; and 2) because the general contractor admitted that its claims of negligence against subcontractor were without factual merit, it conceded that the staircase was merely the situs of the accident, and thus foreclosed arguments of any connection between the victim's accident and the risk for which the coverage was intended.

[04/29] Negrete v. Allianz Life Ins. Co. of N. Am.
In a class action lawsuit against an insurance corporation challenging the sale of its fixed deferred annuities, an order, which effectively prevents defendant from proceeding with any settlement negotiations on similar class action claims raised in any other courts without permission from plaintiff's lead counsel, is reversed where: 1) in the context of the All Writs Act, there was no proper support for the district court's enjoining of proceedings in other courts; and 2) even if there were, the Anti-Injunction Act barred such injunction.

[04/29] Everett v. State Farm Gen. Ins. Co.
In a coverage dispute against an insurer alleging, inter alia, breach of contract, breach of good faith and fair dealing, promissory fraud, fraudulent misrepresentation, and negligent misrepresentation, judgment for defendant is affirmed where: 1) upon interpreting plaintiff's policy, the policy language was not unclear and did not guarantee to cover plaintiff's loss in its entirety; 2) plaintiffs assertions were insufficient to support a claim for a breach of contract; 3) with no breach of contract, there was no breach of the implied covenant of good faith and fair dealing; 4) the underlying facts established no misrepresentation, negligent or intentional.

[04/24] US v. Ogba
Defendants' convictions and sentences resulting from a scheme involving billing Medicare for false prescriptions for wheelchairs are affirmed in part over claims of error regarding: 1) whether the circuit court abused its discretion in refusing to provide defendants with a copy of a colloquy between a recruiter and the judge; 2) a refusal to admit an e-mail about the recruiter into evidence; 3) cumulative errors regarding the recruiter's testimony; 4) a Confrontation Clause claim, and whether any such error was harmless; 5) a deliberate ignorance instruction; 6) whether the indictment was void; and 7) whether the indictment failed to allege an offense enumerated in the Constitution. One defendant's sentence is reversed and remanded based on a claim that his convictions under the health care fraud and illegal remuneration statutes were multiplicitous and violated double jeopardy.

[04/24] Crocker v. Nat'l Union Fire Ins.
In a case in which plaintiff sought to recover on the basis of a $1 million default judgment for a personal injury claim, summary judgment for plaintiff on a claim to recover her judgment as a third party beneficiary from defendant-insurer is reversed where defendant owed no duty to defend insured-tortfeasor, or to sua sponte notify him that its policy covered him, based on his failure: 1) to request defense in any manner, 2) to give defendant notice of the suit, 3) to furnish it copies of any relevant papers; and 4) to comply with its relevant notice provisions.

[12/05] Levan v. Independence Mall Inc.
In an action arising from an injury in a work-related accident wherein a petition for additional compensation was filed with the Industrial Accident Board more than 5 years after the employer's insurance carrier mailed the last medical expense payment, judgment that the petition was time-barred under 19 Del. C. section 2361(b) is affirmed over claims that: 1) the limitations period began to run when the claimant or his medical provider actually receives the last payment; and 2) the Board's decision was not supported by substantial evidence; and 3) the Superior Court applied its own construction of section 2361(b) incorrectly and erred when it upheld the Board's ultimate ruling of the petition as barred.

[11/21] Asbestos Workers Local Union No. 42 Welfare Fund v. Brewster
In a subrogation action brought by an ERISA Fund wherein one of its members sought to have her medical expenses from an automobile accident paid by the Fund, summary judgment for plan administrators is affirmed whereby: 1) the Fund's state law subrogation claim was preempted by ERISA section 514, as the claim "relates to" the ERISA plan; and 2) the Fund's subrogation claim duplicated or supplemented a civil enforcement remedy available to the Fund under section 502(a)(3) of ERISA.

More...

Intellectual Property

[05/13] Acumed LLC v. Stryker Corp.
In a patent case involving a product used to treat proximal humeral bone fractures, dismissal of the action based on claim preclusion is reversed and remanded where defendant conceded that the accused devices were not essentially the same, and thus it failed to meet its burden to show that the infringement claim in the prior action was the same as the infringement claim in the present action.

[05/12] Othentec Ltd. v. Phelan
In an action raising claims under the Virginia Computer Crimes Act and the Virginia Uniform Trade Secrets Act, summary judgment for defendants is affirmed where: 1) plaintiffs failed to present evidence that defendant had used a computer to withdraw funds he was not authorized to withdraw for an illegal or unauthorized purpose; and 2) plaintiffs did not present sufficient evidence to show that defendants were using plaintiffs' trade secrets in their manufacturing process.

[05/08] Lucent Techs., Inc. v. Gateway, Inc.
In a patent case pertaining to alleged infringement by Microsoft and Dell of two patents owned by plaintiff-Lucent, summary judgment of non-infringement as to one patent is vacated and remanded where the district court's construction of the term "terminal device" was erroneous. Summary judgment of non-infringement as to another patent is affirmed as the district court's construction of the phrase "each successive iteration including the steps of" was proper.

[05/07] Solomon Techs., Inc. v. Int'l Trade Comm'n
In proceedings involving imports and sales of certain Toyota hybrid vehicles, an order finding no violation of section 337 of the Tariff Act of 1930 and refusing to enter an order excluding Toyota's products is affirmed on the basis of noninfringement, although the circuit court declines to resolve the construction of a "continuously variable" limitation.

[05/07] Decisioning.com, Inc. v. Federated Dep't Stores, Inc.
In a patent infringement action involving automated financial account processing systems, summary judgment of non-infringement in favor of defendants is affirmed in part, vacated in part, and remanded where: 1) the construction of "remote interface" only encompasses publicly-accessible computer equipment and not consumer owned personal computers; 2) thus, defendant-Federated was entitled to summary judgment; 3) defendants-TD Ameritrade and HSBC were entitled to summary judgment only with respect to systems that are accessed solely via consumer-owned personal computers; but 4) further proceedings were required as to those defendants based on certain modified claim constructions.

[05/06] PSN Illinois, LLC v. Ivoclar Vivadent, Inc.
In a patent infringement action involving a method of fabricating porcelain veneers for teeth, summary judgment of non-infringement is affirmed where: 1) although the district court erred in excluding all finishing steps and construed the claim term "ready for mounting" too narrowly; nevertheless, 2) no reasonable jury could conclude that the accused process included an equivalent of the "ready for mounting" limitation under the doctrine of equivalents.

[05/06] Estate of Coll-Monge v. Inner Peace Movement
In an action for trademark infringement and related claims, summary judgment for defendants-non-profits is reversed in part and remanded where: 1) the district court erred in holding that a non-profit corporation cannot be a related company whose use of the trademark is controlled by the mark's registrant; and 2) there remain disputed issues of fact regarding both the doctrine's applicability in this case, and the capacity in which testator registered the marks with the USPTO.

[05/06] U.S. v. Armstead
Convictions for felony willful copyright infringement for private financial gain are affirmed over allegations that the government failed to produce sufficient evidence that DVDs sold had an aggregate value of more than $2,500 in "retail value" as used in section 2319(b)(1).

[05/02] Wabtec Corp. v. Faiveley Transp. Malmo AB
In a licensing agreement dispute involving arbitration issues, appeal from a denial of defendant's motion to dismiss plaintiff's application for preliminary injunction and expedited discovery is dismissed for lack of jurisdiction where the district court's order was not an appealable interlocutory under the collateral order doctrine or the Federal Arbitration Act.

[04/29] Samsung Elecs. Co. Ltd. v. Rambus, Inc.
In a patent case, an order denying plaintiff's attorney's fees application and entering findings adverse to defendant is vacated and remanded with instructions to dismiss plaintiff's complaint where the case became moot once the defendant offered to pay the full amount of attorney's fees.

More...

International Law

[05/09] Baran v. Beaty
In a case involving a mother who removed her minor son from Australia, denial of father's petition for return of the minor pursuant to the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act of 1988 is affirmed where: 1) based on evidence of the father's propensity for violence, the district court did not err in concluding that returning the minor to Australia would expose him to a grave risk of psychological harm; and 2) because the court was not presented with any proposed undertakings that could ameliorate the risk of harm to the child under the circumstances presented, the court did not abuse its discretion in denying the petition for return.

[05/08] Royal Ins. Co. of Am. v. Orient Overseas Container Line Ltd.
In an action brought by Ford and its cargo insurer against defendant-ocean carrier for damages arising from the loss of cargo during a transatlantic voyage, partial summary judgment for defendant and third-party defendants is reversed where the district court erroneously interpreted the bill of lading to apply Carriage of Goods by Sea Act (COGSA) instead of the Hague-Visby Rules, and additional briefing and fact-finding may be required before the liability limitation may be appropriately applied. (Amended opinion)

[05/07] Atamirzayeva v. U.S.
In an action seeking compensation under the Fifth Amendment for an alleged taking of property plaintiff-Uzbek citizen owned in Uzbekistan, dismissal of the takings claim is affirmed where plaintiff failed to plead a significant connection to the United States other than her property being located next to the U.S. Embassy.

[04/29] Choe v. Torres
Denial of Korean citizen's habeas corpus petition challenging certification of his extradition to the Republic of Korea is affirmed in part as to a charge that defendant bribed an officer, but reversed in part as to another charge where there was no competent evidence to support a magistrate judge's finding of probable cause that defendant committed the particular acts "for which extradition [was] requested."

[04/24] Mora v. People of the State of New York
A state-party's failure to fulfill its obligation to inform a detained alien of the prospect of consular notification and access, pursuant to Article 36 of the Vienna Convention, cannot form the basis for the individual to bring an action for damages under the Alien Tort Statute (ATS), 42 U.S.C. section 1983, or directly under the Vienna Convention.

[04/22] Van Keulen v. Cathay Pac. Airways, LTD.
Whereas a trial court generally lacks the authority to "dismiss" an action brought by a California plaintiff on the basis of forum non-conveniens, it has the discretionary authority to dismiss for a failure to "diligently prosecute" an action stayed on forum non- conveniens grounds.

[04/15] Harbury v. Hayden
In a suit alleging that members of the U.S. government were responsible for the torture and death of a Guatemalan rebel fighter, dismissal of plaintiff's common law tort claims is affirmed where: 1) the political question doctrine barred consideration of plaintiff's claims; and 2) even if the political question doctrine did not apply, the Federal Tort Claims Act applied to plaintiff's tort claims, and the FTCA bars suits based on injuries suffered in a foreign country.

[04/11] Sompo Japan Ins., Inc. v. Nippon Cargo Airlines Co., Ltd.
In a suit by an insurer to recover damages from international shipping companies for damaged goods, judgment for plaintiff is affirmed where: 1) state setoff and contribution laws are not preempted by the Warsaw Convention; 2) defendant was entitled to a damages setoff in the amount of a settlement between plaintiff and two previous defendants; 3) the district court correctly concluded that the setoff was subtracted from plaintiff's total proven damages rather than the amount of defendant's limited liability under the Warsaw Convention; and 4) prejudgment interest is not appropriate under the terms of the Convention.

[04/02] The Rice Co. (Suisse), S.A. v. Precious Flowers Ltd.
In an action brought by a rice shipper against defendants arising from damages sustained by rice cargo, denial of defendants' motion to compel arbitration in New York is affirmed where: 1) the parties to instruments at issue unambiguously structured their relationship such that defendant-vessel owner was not a party to the voyage charter containing the arbitration clause; 2) the district court did not err in holding that the bill of lading did not bind the vessel owner to the voyage charter's mandatory arbitration clause; and 3) the circuit court rejects a claim that if a bill of lading contains any arbitration clause, the in rem vessel and the in personam representative of the vessel must be compelled to arbitrate.

[03/31] Akira Akazawa v. Link New Tech. Int'l, Inc.
In a patent dispute, summary judgment for defendant based on lack of standing is vacated where issues of Japanese intestacy law must be resolved by the district court in order to determine whether plaintiff owned the patent at issue, and therefore possessed standing to bring the present suit.

More...

Labor & Employment Law

[05/13] Lawrence v. Dep't of the Interior
In an action brought by an Indian tribe member employed by the Bureau of Indian Affairs (BIA) challenging the denial of increased retirement benefits payable to employees whose duties included firefighting, summary judgment for the BIA is affirmed where: 1) the government did not waive the time limit of 5 C.F.R. section 831.906(e) by failing to provide actual notice of the new time limit for filing to current employees; 2) the federal government's trust responsibility toward Indian tribes imposes no special notice obligation beyond that enunciated in the aforementioned rule; 3) the Indian Preference Act does not apply, and the regular provisions of the Civil Service Regulations govern plaintiff as they do any other employee; and 4) summary judgment on a disparate impact claim was proper.

[05/13] Levine v. City of Alameda
In a 42 U.S.C. section 1983 action brought by a city property manager against defendants-city and city manager alleging a due process violation stemming from his lay off, partial summary judgment for plaintiff and defendants is affirmed where the district court did not err in finding that: 1) plaintiff's procedural due process rights were violated and that he was entitled to a full evidentiary hearing before a neutral third-party; and 2) the city manager was not personally liable based on qualified immunity and the city was not liable as a municipality.

[05/13] Knutson v. UGS Corp.
In a suit brought to recover almost $700,000 in sales commissions that plaintiff claimed was due from defendants, summary judgment for defendants is affirmed where: 1) two claims were time barred since the two year statute of limitations applies to written compensation plans, even though plaintiff did not have a written employment contract; and 2) plaintiff was not entitled to commission on sales of one software package since it had to be sold in conjunction with another software package and plaintiff never claimed to have been denied this commission.

[05/13] U.S. ex rel Marlar v. BWXT Y-12, LLC
In an action alleging violation of the the False Claims Act and discharge in retaliation for whistleblowing, dismissal of the fraud complaint is affirmed where: 1) plaintiff failed to provide sufficient detail regarding the procedures used to defraud the government; and 2) plaintiff failed to allege facts regarding a false claim presented to the government. However, dismissal of the retaliation claim is reversed and remanded where plaintiff provided sufficient information regarding the retaliatory nature of her discharge.

[05/12] Fischer v. Forestwood Co., Inc.
In an action raising claims for unlawful discharge, retaliation, and failure to hire, summary judgment for defendant is affirmed in part as to the unlawful discharge and retaliation claims, but reversed and the case remanded as to the failure to hire claim, where: 1) plaintiff was not fired since he voluntarily left the company; 2) the level of harassment plaintiff experienced because of his religion and his resignation in protest of another employee being discharged did not rise to the level of constructive discharge; 3) a taped conversation between plaintiff and the deceased president of the company constituted an admission by a party opponent and was admissible; and 4) the tapes showed sufficient evidence of a failure to hire claim to survive summary judgment.

[05/12] Nat'l Labor Relations Bd. v. Studio Transp. Drivers Local 399
Application to enforce an NLRB order finding that a union committed an unfair labor practice against intervenor, who refused to join the union, is granted where the NLRB's interpretation of the National Labor Relations Act, in finding that the union violated the Act by offsetting its "liquidated damages" from its nonrepresentational expenses, was rational and consistent with the Act.

[05/09] Fashion Valley Mall, LLC v. National Labor Relations Board
Mall's petition for review of a National Labor Relations Board order, which held that it was a violation of a party's free speech rights under the California Constitution to require a permit applicant to agree not to urge consumers to boycott any of the mall's tenants as a condition to obtaining a permit to engage in expressive activities at the mall, is denied where petitioner failed to raise its constitutional arguments before the circuit court in prior proceedings, and waited until it petitioned the California Supreme Court for a rehearing.

[05/09] McCann v. Tillman
In a Title VII suit against an employer alleging claims of racial discrimination, retaliation, and hostile work environment, summary judgment for employer is affirmed where: 1) the record demonstrated that employee's claims of favorable disparate treatment of similarly situated white employees were inapposite to establish a prima facie case of discrimination; 2) employee failed to meet the burden of showing that the reasons for her employer's actions were actually a pretext for retaliatory conduct; and 3) despite employee's allegations of exposure to offensive derogatory language at work, the evidence presented was insufficient to support a claim of hostile work environment.

[05/08] U.S. v. Harper
In an action alleging intentional and negligent misrepresentation by defendant's failure to disclose information in a referral letter, judgment against one defendant is reversed where: 1) the referral letter was not affirmatively misleading since it did not comment nor recommend on the doctor's proficiency; and 2) defendant did not have an affirmative duty to disclose negative facts. As for other defendants, their liability is affirmed, but the case is vacated and remanded in order to determine if there needs to be a re-apportionment of damages between the remaining defendants.

[04/29] Ramirez v. Murdick
In an action wherein plaintiff filed a Huffman claim seeking liquidated damages, attorney's fees and costs for the late payment of worker's compensation benefits, summary judgment for defendants is affirmed where: 1) the Superior Court did not err in its interpretation and application of Workers' Compensation Act, 19 Del. C. sections 2357 and 2362(c); and 2) although the Superior Court erred in converting employer's motion to dismiss into a motion for summary judgment without notice, the error was harmless.

More...

Tax Law

[05/13] S&M Brands, Inc. v. Cooper
In an action involving the Tennessee's Attorney General's enforcement of an amended escrow provision in the Master Settlement Agreement between various states and tobacco manufacturers alleging an impermissible retroactive effect in violation of due process, a summary judgment ruling is reversed and remanded with instructions to dismiss the case without prejudice on grounds of sovereign immunity where: 1) continuous application of the retroactive statute is unlikely; 2) states enjoy immunity in federal court for tax-related claims; 3) the inherent dignity of the sovereign state favors immunity; and 4) the semi-tax nature of the escrow system would better lend itself to a suit in state court.

[05/12] Kornman & Assocs. Inc. v. US
In a proceeding under the Tax Equity and Fiscal Responsibility Act (TEFRA) in which plaintiffs were alleged to have attempted to create an artificial tax loss through the short sale of Treasury Notes and the transfer of partnership interests, summary judgment for the government and dismissal with prejudice of a petition for readjustment of partnership items is affirmed where the obligation to close a short sale is a liability for purposes of I.R.C. section 752.

[05/08] US v. Mendoza
A conviction for subscribing to a false income tax return is reversed and remanded due to a violation of defendant's Sixth Amendment speedy-trial right where, despite defendant's departure to the Philippines, an eight-year delay between defendant's indictment and arrest was a result of the government's negligence, and prejudice is presumed. (Superseding opinion)

[04/29] Lewis v. Cir.
Tax Court's decision against plaintiff based on a failure to file a timely return, failure to timely pay the amount of tax shown on a federal income tax return, and underpayment of estimated income tax is affirmed where: 1) IRS Form 1040 satisfies the requirements of the Paperwork Reduction Act (PRA); 2) OMB #1545-0074 is currently valid; 3) the PRA does not require an expiration date to be printed on any tax information collection forms; 4) the PRA does not require disclosure information to be printed on Form 1040; and 5) sanctions on appeal were unwarranted as to either party.

[04/29] Bay Area Cellular Tel. Co. v. City of Union City
A fee imposed on telephone lines by a city to fund its 911 emergency communication is a "special tax" which must be approved by two-thirds of the voters in the city under Proposition 218.

[04/29] BB&T Corp. v. U.S.
In a suit against the government for a tax refund originating from a "lease-in/lease-out" (LILO) transaction, summary judgment for the government is affirmed where: 1) the transaction is not a genuine lease and sublease since it does not allocate rights, obligations, and risks as in a traditional lease which disallows plaintiff from making rental deductions; and 2) plaintiff is not entitled to deduct interests paid on a loan from its taxable income since the loan does not constitute genuine indebtedness.

[04/28] Korean Air Lines Co., LTD v. County of Los Angeles
A judgment awarding plaintiff a refund of certain property taxes and a post-judgment attorney's fees order are reversed and remanded where plaintiff had a taxable possessory interest in a Federal Inspection Services area for the subject tax years, and thus assessment for the interest was invalid.

[04/28] Airflow Technology, Inc. v. U.S.
In a customs case concerning the classification of an air filter for import duty purposes, summary judgment for the government is reversed and the case remanded where: 1) the term "straining cloth" applies only to products that separate solids from liquids; and 2) the court concludes that the meaning of the phrase "of a kind used in oil presses or the like" means "of a kind used in oil presses or other mechanisms that separate solids from liquids."

[04/24] In the Matter of Steel Los III/Goya Foods, Inc. v. Bd. of Assessors of County of Nassau
Nassau County Administrative Code (NCAC) section 6-26.0(b)(3)(c) applies to "payments-in-lieu-of-taxes" (PILOT payments), thus making deficits incurred by affected taxing jurisdictions resulting from property over-assessments "a county charge."

[04/23] State Bldg. and Constr. Trades Council of California v. Duncan
Tax credits provided by the state to facilitate construction of low-income housing come within the definition of Labor Code section 1720, which requires employers engaged on public works projects to pay the prevailing wage to their workers if the project is "paid for in whole or in part out of public funds".

More...

Transportation

[05/09] California Highway Patrol v. Superior Court (Walker)
Vehicle Code section 14602.6(a)(1) provides only discretionary authority to impound and therefore the California Highway Patrol cannot be held liable under Government Code section 815.6 for failing to perform a mandatory duty.

[05/08] Air Line Pilots Ass'n v. Nat'l Labor Relations Bd.
In proceedings arising after the NLRB brought a complaint alleging that, by attempting to enforce certain provisions of a collective bargaining agreement with DHL Airways, petitioner-pilots' association had committed unfair labor practices, the association's petition for review of a finding that its conduct violated the National Labor Relations Act is granted where, under the analysis of Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, the NLRB did not have jurisdiction over this Railway Labor Act dispute.

[05/08] Royal Ins. Co. of Am. v. Orient Overseas Container Line Ltd.
In an action brought by Ford and its cargo insurer against defendant-ocean carrier for damages arising from the loss of cargo during a transatlantic voyage, partial summary judgment for defendant and third-party defendants is reversed where the district court erroneously interpreted the bill of lading to apply Carriage of Goods by Sea Act (COGSA) instead of the Hague-Visby Rules, and additional briefing and fact-finding may be required before the liability limitation may be appropriately applied. (Amended opinion)

[05/07] Solomon Techs., Inc. v. Int'l Trade Comm'n
In proceedings involving imports and sales of certain Toyota hybrid vehicles, an order finding no violation of section 337 of the Tariff Act of 1930 and refusing to enter an order excluding Toyota's products is affirmed on the basis of noninfringement, although the circuit court declines to resolve the construction of a "continuously variable" limitation.

[05/01] People v. Cabrera
In a criminal case arising from a traffic accident wherein sober defendant-driver's excessive speeding claimed the lives of three passengers, conviction for criminally negligent homicide and third-degree assault is reversed and dismissed where, although defendant's excessive speeding behavior was negligent and unquestionably "blameworthy", the evidence adduced at trial did not establish that circumstances surrounding the accident amounted to the kind of "morally blameworthy" component required to infer defendant's criminal negligence.

[04/29] Wang v. Valverde
Grant of a petition for writ of administrative mandate compelling the DMV to set aside its revocation of plaintiff's class C, noncommercial driver's license is affirmed where the DMV's claim that, as a matter of law, it had authority to revoke the license because it allegedly caught plaintiff cheating on the examination for a class B license, was based on an erroneous interpretation of Vehicle Code section 13359.

[04/28] Nationwide Transp. Fin. v. Cass Info. Sys., Inc.
In a finance company's action raising claims for intentional interference with contractual relationship, intentional interference with prospective economic advantage, breach of implied contract, and account stated, judgment for defendant is affirmed over claims that the district court erred in: 1) excluding certain witness' testimony; 2) precluding any reference to a payment agent "standing in the shoes of an account debtor"; 3) refusing to give plaintiff's requested jury instructions on the UCC and agency principles; and 4) its formulation of plaintiff's proposed instruction on section 767 of the Restatement.

[04/28] Korean Air Lines Co., LTD v. County of Los Angeles
A judgment awarding plaintiff a refund of certain property taxes and a post-judgment attorney's fees order are reversed and remanded where plaintiff had a taxable possessory interest in a Federal Inspection Services area for the subject tax years, and thus assessment for the interest was invalid.

[04/28] Woods v. Union Pac. R.R. Co.
In a negligence action filed under the Federal Employer's Liability Act (FELA) and the Federal Safety Appliance Act (SAA), grant of a directed verdict in favor of defendant-railroad is affirmed where: 1) FELA liability cannot be premised on a violation of the SAA, since, as a matter of law, the SAA and its regulations did not prohibit the use of vertical handholds on a railcar in combination with horizontal handholds; and 2) directed verdict for defendant was proper as substantial evidence in the record did not support a basis, independent of the SAA, for the negligence claim.

[04/24] Thomas v. George, Hartz, Lundeen, Fulmer, Johnstone, King, & Stevens, P.A.
In an action alleging defendants-attorney and law firm violated the Driver's Privacy Protection Act (DPPA) by wrongfully obtaining and using personal information contained in driver's license records, summary judgment for defendants is affirmed where the district court: 1) did not err in placing the burden on plaintiff to show a purported violation of section 2724(a) of the DPPA; and 2) properly weighed the summary judgment evidence.

More...