News

Case Summaries

Civil Rights

[03/10] Clos v. Corrections Corp. of Am.
In an action by a prisoner claiming that he suffered disability discrimination related to his severe hearing loss, plaintiff's appeal from partial summary judgment for defendants is dismissed where the district court's conclusory order provided no basis for a finding that plaintiff would face hardship or injustice by waiting to appeal until his remaining claim against defendants was fully resolved.

[03/10] Foley v. Town of Randolph
In plaintiff's 42 U.S.C. section 1983 suit claiming that he was wrongfully retaliated against in violation of his First Amendment rights when he was suspended, as Chief of the Fire Department, for fifteen days based on public statements he made at the scene of a fatal fire, summary judgment in favor of defendants is affirmed as, under the circumstances of the press conference in the case, there could be no doubt that plaintiff was speaking in his official capacity and not as a citizen when he addressed budgetary and staffing shortfalls at the department.

[03/10] Cameron v. N.Y.
In an action for false arrest and malicious prosecution, judgment for defendant-officers is reversed where: 1) prosecutors' opinions as to probable cause and complaining officers' credibility are irrelevant in virtually all cases involving claims of malicious prosecution; and 2) the introduction of such evidence was not harmless because it provided strong external validation for propositions that otherwise would have come in only from the defendants' mouths.

[03/09] Zia Trust Co. v. Montoya
In an action for excessive force brought by family members of a man defendant-officer shot and killed while responding to a domestic disturbance, denial of summary judgment based on qualified immunity is affirmed where the court could not say that a van fifteen feet away, which according to the plaintiffs was clearly stuck on a pile of rocks, gave defendant probable cause to believe that there was a threat of serious physical harm to himself or others that would justify his use of force.

[03/09] Espinosa v. City & County of San Francisco
In a 42 U.S.C. section 1983 action claiming excessive force by defendants-officers, denial of summary judgment based on qualified immunity is affirmed where: 1) defendants failed to show as a matter of law that plaintiff's decedent did not have a reasonable expectation of privacy; 2) the district court properly found that defendants failed to show as a matter of law that the emergency and exigency exceptions to the Fourth Amendment warrant requirement applied; 3) defendants failed to show that there were no questions of fact regarding whether a security guard had apparent authority to consent and implied consent; and 4) the district court did not err in finding that there were genuine issues of fact regarding whether the officers intentionally or recklessly provoked a confrontation.

[03/09] Lockridge v. Univ. of Maine Sys.
In plaintiff's gender discrimination, retaliation and hostile work environment action against a university, grant of summary judgment in favor of the university is affirmed where: 1) given the lack of any evidence suggesting that the university's proffered reason for denying plaintiff a pay raise was pretextual, plaintiff's gender discrimination claim fails as a matter of law; 2) university's denial of plaintiff's particular request for office space did not amount to a materially adverse employment action; and 3) the hostile work environment claim fails as a matter of law.

[03/09] Equal Employment Opportunity Comm'n v. Hosanna-Tabor Evangelical Lutheran Church & Sch.
In an employment discrimination and retaliation action brought by a teacher at a religious school claiming violations of the ADA, the district court's grant of summary judgment in favor of the defendant based on the "ministerial exception" is vacated and remanded as, given the factual findings relating to plaintiff's primary duties as a teacher, the district court erred in its legal conclusion classifying her as a ministerial employee.

[03/09] Redd v. Wright
In a 42 U.S.C. section 1983 action arising out of plaintiff inmate's confinement in tuberculosis hold following his refusal to submit to tuberculosis testing, summary judgment for defendants is affirmed where: 1) prior precedent did not "clearly foreshadow" a holding that the testing policy, as applied in this case, violated plaintiff's Free Exercise rights; 2) it could not reasonably be said that defendants acted in violation of clearly established Eighth Amendment law by implementing the policy; and 3) it was not clearly established that plaintiff was entitled to some kind of notice that religious objectors could be exempt from the policy.

[03/08] McBeth v. Himes
In a 42 U.S.C. section 1983 action arising out of an investigation by the sheriff's office and the Colorado Department of Human Services that resulted in plaintiff surrendering her license to run a daycare facility in Colorado, partial summary judgment based on qualified immunity to defendant-officials is affirmed in part where: 1) plaintiff voluntarily relinquished her license before any suspension proceedings could take place; and 2) defendants made a prima facie showing that they acted objectively reasonably when they sought suspension of plaintiff's daycare license. However, the order is reversed in part where plaintiff failed to allege and prove that the state officials lacked cause to seek suspension of her license.

[03/05] Doe v. S. Carolina Dep't of Soc. Servs.
In a 42 U.S.C. section 1983 action brought by a minor child and her adoptive parents against defendant, an Adoption Specialist with the South Carolina Department of Social Services (SCDSS), alleging violations of their substantive due process rights under the Fourteenth Amendment and state law claims against SCDSS under the South Carolina Tort Claims Act (SCTCA), judgment is affirmed in part, vacated in part, and remanded where: 1) when a state involuntarily removes a child from her home, thereby taking the child into its custody and care, the state has taken an affirmative act to restrain the child's liberty, triggering the protections of the Due Process Clause and imposing "some responsibility for the child's safety and general well being"; 2) because it would not have been apparent to a reasonable social worker in defendant's position that her actions violated the Fourteenth Amendment, she is entitled to qualified immunity; 3) prospective adoptive parents have no substantive due process right to the disclosure of a child's history of sexual abuse; and 4) district court's grant of defendants' motion for summary judgment on the state law claims for gross negligence against SCDSS is vacated and remanded for consideration of the applicability of section 15-78-60(25).

Read More

Cyberspace

[03/11] US v. Dodd
Defendant's sentence for knowingly receiving and possessing child pornography is affirmed where: 1) absent concrete evidence of ignorance -- evidence that was needed because ignorance was entirely counterintuitive -- a fact-finder could reasonably infer that the defendant knowingly employed a file sharing program for its intended purpose; and 2) the district court committed no procedural error in determining defendant's advisory guidelines sentencing range.

[03/03] Byers v. Intuit, Inc.
In plaintiff's putative class action on behalf of U.S. taxpayers against the IRS and a consortium of companies in the electronic tax preparation and filing industry (FFA) claiming violations of the Independent Offices Appropriations Act (IOAA) in the charging of fees in exchange for providing e-filing services, as well as a violation of section 1 of the Sherman Antitrust Act, dismissal of both claims is affirmed where: 1) the district court was correct in holding that the IOAA does not apply to the FFA members, as it only applies to a government agency and none of the exceptions in Thomas v. Network Solutions, Inc., 176 F.3d 500 (D.C. Cir. 1999) apply; and 2) the district court did not err in dismissing the Sherman Act claim as the FFA members are entitled to conduct-based implied antitrust immunity with respect to the anti-competitive action taken pursuant to the Ceiling Provisions of the 2005 Agreement with the IRS.

[02/26] Office Depot Inc. v. Zuccarini
In a judgment debtor's appeal from an order appointing a receiver to take control of and auction off some of debtor's domain names in order to satisfy the judgment, the order is affirmed where: 1) Kremen v. Cohen, 337 F.3d 1024, 1030 (9th Cir. 2003), was still an accurate statement of California law, and domain names are intangible property subject to a writ of execution; and 2) domain names were personal property located wherever the registry or the registrar were located.

[02/26] Phan v. Pham
In plaintiff's suit for defamation, trial court's dismissal of the action is affirmed as, using the material contribution test from Fair Housing Council of San Fernando Valley v. Roommates, it is evident that defendant made no material contribution to the alleged defamation in the e-mail he received from the originator and the only possible defamatory content is to be found in the e-mail was the original content received by defendant.

[02/25] Maverick Recording Co. v. Harper
In a copyright infringement action based on unlawful file sharing, partial summary judgment for plaintiffs is affirmed where: 1) the uncontroverted evidence was more than sufficient to compel a finding that defendant had downloaded the files; and 2) defendant infringed plaintiffs' exclusive right to reproduce their copyrighted works by downloading the 37 audio files to her computer without authorization. Moreover, the partial denial of summary judgment for plaintiffs is reversed where lack of legal sophistication could not overcome a properly asserted 17 U.S.C. 402(d) limitation to the innocent infringer defense.

[02/25] Trading Techs. Int'l, Inc. v. eSpeed, Inc.
In plaintiff's action for patent infringement for patents relating to software for displaying the market for a commodity traded in an electronic exchange, judgment of district court is affirmed where: 1) defendant's infringed the asserted claims of one patent with one accused service product, but not willfully; 2) the two other accused products did not literally infringe, and as such, plaintiff is precluded from asserting infringement under the doctrine of equivalents; 3) the on-sale bar of 35 U.S.C. section 102(b) does not apply; 4) there are no indefiniteness problems in the asserted claims; and 5) there is no finding of inequitable conduct during the prosecution of the patents-in-suit.

[02/19] Kramer v. Perez
In an action under Iowa's anti-spam law, judgment against defendant individually is reversed where the district court incorrectly interpreted and applied Iowa's anti-spam statute to hold defendant jointly and severally liable for over $236 million in statutory damages.

[02/17] US v. Borowy
Defendant's child pornography possession conviction is affirmed where: 1) because defendant lacked a reasonable expectation of privacy in the shared files at issue, an officer's use of a keyword search to locate those files did not violate the Fourth Amendment; 2) the officer had probable cause to download the files at issue because their filenames suggested that they contained child pornography; and 3) given the strength of the government's case, the benefit that defendant obtained by pleading guilty, and his focus on negotiating a lesser prison term, defendant did not demonstrate that the district court's Fed. R. Crim. P. 11 error affected his substantial rights.

[02/09] US v. John
Defendant's conviction for conspiracy to commit access device fraud is affirmed where "authorized access" or "authorization" under 18 U.S.C. section 1030(a)(2) could encompass limits placed on the use of information obtained by permitted access to a computer system and data available on that system, at least when the user knew or reasonably should have known that he or she was not authorized to access a computer and information obtainable from that access in furtherance of or to perpetrate a crime. However, defendant's sentence is vacated where the district court erred in failing to apply a three-level reduction in defendant's sentence for partial completion of the offense and there was a reasonable probability that, but for the district court's misapplication of the Sentencing Guidelines, defendant would have received a lesser sentence.

[02/05] US v. Miller
In a prosecution of defendant for possession of child pornography and marijuana wherein he was sentenced to thirty months' imprisonment and a lifetime term of supervised release, the district court's imposition of eight special conditions of supervised release is vacated and remanded as a lifetime limitation on internet use is a greater restraint of liberty than is reasonably necessary and a restriction on his association with minors is overbroad.

Read More

Entertainment

[03/10] Russian Media Group, LLC v. Cable Am., Inc.
In plaintiff's action against defendant-cable television company claiming that it pirated Russian-language satellite television programming to enable it to compete unfairly against plaintiff's legitimate business, grant of a preliminary injunction enjoining defendant and others from distributing Russian-language television to twenty specific apartment houses where they had been operating illegally is affirmed where: 1) the district court did not abuse its discretion in writing the injunction as it did; 2) defendants did not raise the preemption defense until after they had appealed the preliminary injunction and, as such, it is not appropriate to overturn an injunction on the basis of a defense that the district court had no opportunity to consider; 3) defendants' contentions that the plaintiff is not an "aggrieved party" are without merit; and 4) the district court properly rejected a res judicata defense.

[03/10] TJS of N.Y., Inc. v. Smithtown
In an action seeking an injunction and declaratory judgment to the effect that defendant-town's zoning ordinance did not give plaintiff adequate alternative sites on which to locate its adult entertainment business, a denial of an injunction is vacated where the First Amendment required courts to consider the adequacy of alternative sites available when the ordinance is challenged, not at the time the ordinance is passed.

[03/10] US v. Ternus
Defendant's conviction for conspiracy to transport in foreign commerce stolen goods valued at $5,000 or more, knowing the goods to have been stolen, is affirmed where: 1) defendant's guilty plea waived all non-jurisdictional defects in the proceedings against him; and 2) the district court was not required to define "foreign commerce" in order to adequately explain the nature of the charges against him.

[03/09] Wampler v. Southwestern Bell Tel. Co.
In an antitrust action on behalf of a putative class of all residents of multiple dwelling units (MDUs) in five states who were limited to voice, video, and Internet service by contracts with defendant AT&T, dismissal of the action is affirmed where a single MDU (or MDUs in the aggregate) could not plausibly be considered a relevant geographic market for antitrust purposes. (Revised opinion)

[03/02] Reed Elsevier, Inc. v. Muchnick
In a class action alleging copyright infringement, a circuit court's ruling vacating a settlement class certification order for lack of subject matter jurisdiction is reversed where 17 U.S.C. section 411(a)'s registration requirement is a precondition to filing a copyright infringement claim, but a copyright holder's failure to comply with that requirement does not restrict a federal court's subject matter jurisdiction over infringement claims involving unregistered works.

[03/01] Media Techs. Licensing, LLC. v. Upper Deck Co.
In a patent infringement suit involving patents related to memorabilia cards, district court's conclusion that the patents are invalid for obviousness is affirmed where: 1) defendants have met the burden of showing that it would have been obvious to one skilled in the art to attach a sports-related item instead of those items attached in the prior art references; and 2) secondary objective evidence also fails to establish non-obviousness.

[02/25] Maverick Recording Co. v. Harper
In a copyright infringement action based on unlawful file sharing, partial summary judgment for plaintiffs is affirmed where: 1) the uncontroverted evidence was more than sufficient to compel a finding that defendant had downloaded the files; and 2) defendant infringed plaintiffs' exclusive right to reproduce their copyrighted works by downloading the 37 audio files to her computer without authorization. Moreover, the partial denial of summary judgment for plaintiffs is reversed where lack of legal sophistication could not overcome a properly asserted 17 U.S.C. 402(d) limitation to the innocent infringer defense.

[02/16] Flanigan's Enters., Inc. v. Fulton County, Ga.
In an First Amendment challenge to an ordinance prohibiting the sale, possession, and consumption of alcohol in adult entertainment establishments, summary judgment for plaintiff is reversed where the ordinance attempted to insulate the communities surrounding the adult entertainment establishments from the undesirable elements that tended to accompany those businesses, and thus survived intermediate scrutiny.

[02/01] Peterson v. Grisham
In a defamation action against author John Grisham based on false statements he allegedly made about plaintiffs in a book, dismissal of the action is affirmed where: 1) any connection between defendants' statements and an accusation of criminal activity was far too tenuous for the court to declare them as unprivileged for purposes of Okla. Stat. 1443.1; and 2) because section 1443.1 applied to plaintiffs' libel claims, plaintiffs were also barred under the statute from asserting a valid claim of intentional infliction of emotional distress or false light.

[01/28] Stewart v. Rolling Stone LLC
In a class action suit brought by "indie rock" musicians whose band names were included in an editorial in a Rolling Stone issue, claiming unauthorized use of their names for a commercial purpose, trial court's denial of defendants' anti-SLAPP motion is reversed and remanded where: 1) the trial court erred in concluding that a triable issue exists as to whether the editorial feature that is the subject of this litigation constitutes commercial speech; and 2) plaintiffs have failed to present evidence sufficient to establish that they have a probability of prevailing on the merits.

Read More

Environmental Law

[03/10] Milwaukee Metro. Sewerage Dist. v. American Int'l Specilaty Lines Ins. Co.
In a sewerage district's suit for damages against an environmental liability insurer for denying coverage for costs incurred by the district in removing significant pollution on land it recently purchased, district court's judgment is reversed and remanded as the district court's finding that there was clear and convincing proof that a prior agreement existed between the insurance company and the sewerage district that the parcel would be covered property was clearly erroneous. Therefore, defendant is entitled to judgment on the sewerage district's reformation claim and, as a consequence, judgment in favor of defendant on its indemnity claim is vacated.

[03/09] Native Ecosystems Council v. Tidwell
In an action challenging the Forest Service's approval of a project to update grazing allotments in the Beaverhead-Deerlodge National Forest, summary judgment for defendant is reversed where: 1) because the Forest Service's environmental assessment was based on a nonexistent management indicator species, its habitat proxy analysis was not reliable; and 2) the Forest Service failed to take the requisite "hard look" at the project as required by the National Environmental Policy Act.

[03/08] Kane Cty. v. US
In an appeal from the denial of plaintiffs' motion to intervene in an action brought by Kane County, Utah, to quiet title to several purported rights-of-way across federal public lands, the order is affirmed where: 1) even assuming plaintiffs had an interest in the quiet title proceedings at issue, plaintiffs failed to establish that the U.S. could not adequately represent plaintiffs' interest; and 2) the denial of permissive intervention was not arbitrary and capricious.

[03/08] Morris v. US Nuclear Reg. Comm'n.
In a petition for review of a license granted by the Nuclear Regulatory Commission (NRC) to conduct in situ leach mining for uranium on four sites in northwest New Mexico, the petition is denied where: 1) the clear language of 10 C.F.R. section 20.1301(a)(1) supported the NRC's decision to focus only on the licensed operation; 2) the National Environmental Policy Act did not prohibit approval of projects with negative cumulative effects; it only required that the agency consider and disclose such effects; and 3) there was no evidence in the administrative record to support petitioners' assertion that the NRC based its adoption of the nine-pore-volume restoration effort on economic reasons.

[03/04] MacClarence v. EPA
In a petition for review of the EPA's order denying petitioner's request that the EPA object to the issuance of a Clean Air Act Title V permit for pollutant-emitting activities at an oil and gas processing facility, the petition is denied where: 1) the EPA Administrator's conclusion that petitioner failed to provide adequate information to support his claim that the entire facility should be aggregated was not arbitrary or capricious; and 2) the Administrator's order denying the petition properly set forth petitioner's burden under 42 U.S.C. section 7661d(b)(2), stating that "to justify exercise of an objection by EPA to a title V permit pursuant to section 7661d(b)(2), a petitioner must demonstrate that the permit is not in compliance with the requirements of the CAA" and later concluding that "the general allegations of the Petitioner in the April 2004 Petition . . . fail to demonstrate a basis for Petitioner's claim that Revision 1 to the GC 1 Permit violates the CAA . . . ."

[03/01] Friends of Glendora v. City of Glendora
In plaintiff's claim that the city violated the CEQA when it assessed a fee for her appeal to the city council of a planning commission decision, trial court's decision sustaining defendant's demurrer is affirmed as plaintiff does not indicate how she could amend her complaint to avoid the demurrer, and the trial court did not abuse its discretion in denying leave to amend.

[02/25] Parchester Vill. Neighborhood Council v. City of Richmond
Trial court's judgment granting plaintiffs' petition for writ of mandate and requiring the agreement (MSA) between a city and an Indian tribe to be vacated, set aside, and voided is reversed and remanded where: 1) the Tribe's casino is not a project of the city so as to trigger compliance with CEQA; 2) city's endorsement of the Tribe's fee-to-trust application is not the city's project; 3) by entering into the agreement, the city has not contracted away its power to consider the full range of alternatives and mitigation measures required by CEQA; and 4) negotiations for firehouse and transportation improvements are not subject to CEQA review.

[02/24] Niagara Mohawk Power Assn. v. Chevron U.S.A., Inc.
In an action to recover costs pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), summary judgment for defendants is affirmed in part where: 1) allowing plaintiff to proceed under 42 U.S.C. section 107(a) would in effect nullify the Superfund Amendments and Reauthorization Act amendment and abrogate the requirements Congress placed on contribution claims under section 113; and 2) plaintiff did not offer evidence that it incurred costs as to certain disputed areas. However, the judgment is reversed in part where: 1) the 2003 Consent Order between plaintiff and the New York State Department of Environmental Conservation qualified as "an administrative or judicially approved settlement" under section 113(f) (3)(B), and thus plaintiff was entitled to seek contribution under CERCLA; and 2) plaintiff introduced evidence that defendant's asphalt facility produced or used hazardous materials that may have been released with the asphalt at issue.

[02/23] Gintis v. Bouchard Transp. Co., Inc.
In plaintiffs-property owners' action against the owners and operators of a fuel barge that discharged a substantial amount of oil into a Massachusetts bay, district court's denial of class certification is vacated and remanded because the district court did not subject the parties' contentions to the plenary analysis required by precedent.

[02/19] Precision Pine & Timber, Inc. v. US
In plaintiff's breach of contract suit against the United States, involving the suspension of fourteen contracts with the U.S. Forest Service that provide for timber harvesting in a forest region of Arizona, judgment of the Court of Federal Claims in favor of the plaintiff is affirmed in part, reversed in part and remanded where: 1) trial court's judgment of liability is reversed and damages award vacated on all contracts except one as the trial court erred in construing a clause in question to create an express warranty and holding the Forest Service liable for misrepresentation, and the Forest Service did not breach its implied duty of good faith and fair dealing; and 2) trial court's liability finding on the Hay contract is affirmed as the Forest Service lacked authority to suspend it, and as such, plaintiff is entitled to damages on that contract from the date of the Forest Service's breach until the end of the suspension.

Read More

Health Law

[03/11] Schaar v. Lehigh Valley Health Servs., Inc.
In plaintiff's suit against her former employer for violation of the FMLA, summary judgment in favor employer is vacated and remanded as an employee may satisfy her burden of proving three days of incapacitation through a combination of expert medical and lay testimony. Here, when expert medical opinion of a doctor that plaintiff was incapacitated for two days because of her illness is combined with plaintiff's lay testimony that she was incapacitated for two additional days, it necessarily follows that a material issue of fact exists as to whether plaintiff suffered from a serious health condition.

[03/10] Primiano v. Cook
In an action against the manufacturer of an artificial elbow, summary judgment for defendant is reversed where the exclusion of plaintiff's expert's evidence was error as plaintiff's expert, with a sufficient basis in education and experience, testified that the artificial joint "failed to perform in the manner reasonably to be expected in light of its nature and intended function," which was enough to assist a trier of fact.

[03/10] Clos v. Corrections Corp. of Am.
In an action by a prisoner claiming that he suffered disability discrimination related to his severe hearing loss, plaintiff's appeal from partial summary judgment for defendants is dismissed where the district court's conclusory order provided no basis for a finding that plaintiff would face hardship or injustice by waiting to appeal until his remaining claim against defendants was fully resolved.

[03/10] Darvell v. Life Ins. Co. of N. Am.
In an ERISA action regarding defendant-insurer's denial of long-term disability benefits to plaintiff, summary judgment for defendant is affirmed where: 1) it was not an abuse of an ERISA plan administrator's discretion to ignore an opinion when the physician did not provide reliable objective evidence of testing or other proof to support a finding of long term disability; and 2) the plan administrator did not abuse its discretion by using the DOT description of plaintiff's occupation, rather than a description of his actual job duties.

[03/09] HealthEast Bethesda Hosp. v. United Commercial Travelers of Am.
In an action for breach of an insurance settlement contract, summary judgment for plaintiff is affirmed where: 1) defendant was not an unsophisticated party because it had significant experience in handling and negotiating claims with healthcare providers; 2) because defendant bore the risk of mistake, the district court properly denied rescission based on unilateral mistake; and 3) the record of inaction by defendant strongly supported the denial of relief under both unilateral and mutual mistake.

[03/09] McGuan v. Endovascular Techs., Inc.
In plaintiffs' products liability action against the makers of a device for use by surgeons to treat abdominal aortic aneurysms, for injuries suffered after they were implanted with the device, grant of defendants' motion for a summary judgment is affirmed where: 1) plaintiffs' fraud claims of FDA violations are preempted under Buckman; 2) the trial court did not err in denying plaintiffs' motions to amend their complaints; and 3) the trial court did not abuse its discretion in granting defendants' motion to seal documents.

[03/09] Equal Employment Opportunity Comm'n v. Hosanna-Tabor Evangelical Lutheran Church & Sch.
In an employment discrimination and retaliation action brought by a teacher at a religious school claiming violations of the ADA, the district court's grant of summary judgment in favor of the defendant based on the "ministerial exception" is vacated and remanded as, given the factual findings relating to plaintiff's primary duties as a teacher, the district court erred in its legal conclusion classifying her as a ministerial employee.

[03/09] Redd v. Wright
In a 42 U.S.C. section 1983 action arising out of plaintiff inmate's confinement in tuberculosis hold following his refusal to submit to tuberculosis testing, summary judgment for defendants is affirmed where: 1) prior precedent did not "clearly foreshadow" a holding that the testing policy, as applied in this case, violated plaintiff's Free Exercise rights; 2) it could not reasonably be said that defendants acted in violation of clearly established Eighth Amendment law by implementing the policy; and 3) it was not clearly established that plaintiff was entitled to some kind of notice that religious objectors could be exempt from the policy.

[03/08] People v. Cobb
Following defendant's completion of sentence for assault with a deadly weapon and commitment to a state hospital for treatment as a mentally disordered offender (MDO), judgment of the court of appeals finding that defendant was not denied due process in extension of his commitment is affirmed as, without a time waiver or good cause, section 2972 does not permit continued confinement when an extension trial does not begin before the scheduled release date.

[03/08] People v. Lara
Following defendant's prosecution for false imprisonment of a child, a finding of not guilty by reason of insanity, and commitment to a state hospital, judgment of the court of appeal directing that the trial court grant defendant's motion to dismiss the petition for an extension of his commitment is reversed where: 1) the statutory deadline for filing an extension petition is directory, not mandatory, as long as the petition is filed before the expiration of the current commitment; 2) defendant was not entitled to a dismissal of the petition on due process grounds; and 3) upon motion, defendant would have been entitled under due process to release pending trial, subject to possible proceedings under the Lanterman-Petris-Short Act. However, defendant is not now eligible for release because the court retained jurisdiction to try him and he received a fair trial.

Read More

Immigration Law

[03/11] Tijani v. Holder
Petition for review of the BIA's denial of petitioner's asylum application is granted in part where the court was required to remand to the BIA to address the questions of whether petitioner would be in danger of persecution on account of his religion or would be entitled to other relief. However, the petition is denied in part where petitioner's credit card fraud in violation of Cal. Penal Code section 532a(1) constituted a crime of moral turpitude.

[03/10] Vila v. US Atty. Gen.
In a petition for review of the BIA's denial of petitioner's application for a waiver of inadmissibility, the petition is denied where, because petitioner's approved I-140 visa petition did not make him a lawful resident under section 212(h) when the Immigration and Naturalization Service formally approved his application for adjustment, petitioner did not lawfully reside continuously in the U.S. for the seven years preceding the initiation of his removal proceedings on October 25, 2003.

[03/09] Tampubolon v. Holder
In a petition for review of the BIA's denial of petitioners' asylum application, the petition is granted in part where the BIA erred in failing to apply disfavored group analysis to petitioners' withholding claim because the record compelled a finding that Christians in Indonesia are a disfavored group. However, the petition is denied in part where the BIA's failure to address two irrelevant cases did not render the proceeding fundamentally unfair.

[03/09] Najmabadi v. Holder
In a petition for review of the BIA's order denying petitioner's motion to reopen her removal proceedings on the basis of changed conditions in Iran, the petition is denied where: 1) substantial evidence supported the Board's finding that the evidence petitioner submitted in her motion to reopen was not qualitatively different from the evidence presented at the original hearing; and 2) there was no evidence establishing that returnees from the U.S. would likely face persecution.

[03/09] Thu v. Holder
In a petition for review of the BIA's order dismissing his appeal from a denial of petitioner's asylum application and related relief, the petition is denied where: 1) the Immigration Judge's credibility finding was supported by specific, cogent reasons for disbelief; and 2) the evidence in the record was not so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.

[03/09] Sadhvani v. Holder
A petition for review by a native of Togo of the BIA's denial of his motion to reopen asylum application is denied as the BIA did not abuse its discretion in denying petitioner's motion based on the statutory requirement that one must be present in the United States to be eligible for asylum, and here, because petitioner was removed pursuant to a valid order of removal, he no longer can pursue his asylum application.

[03/08] US v. Molina
Defendant's sentence for transporting an illegal alien is affirmed where: 1) because there was no evidence of involuntariness, the district court properly admitted the hearsay evidence at defendant's sentencing hearing pursuant to a signed stipulation; and 2) the conflicting evidence weighed against a finding that defendant accepted responsibility for his actions.

[03/08] US v. Arias-Ordonez
In a prosecution for reentry following removal from the U.S., the dismissal of the indictment is affirmed where the order instructing defendant to report for removal misinformed him that he had no administrative remedies and he was never told that he had a right to reopen to seek voluntary departure.

[03/08] Freeman v. Holder
In a petition for review of the denial of petitioner's motion to reopen his removal proceedings, the petition is denied where: 1) since a 209(c) waiver only dealt with waiving grounds for inadmissibility for the purpose of seeking adjustment of status, the waiver petitioner placed in the record had no bearing on whether he was removable for his conviction; 2) petitioner was provided with ample notice of the consequences of a failure to appear; and 3) a proposed witness's testimony would not have changed the outcome of the case, and he was not denied due process.

[03/08] People v. Puluc-Sique
People's request to extend the appellate disentitlement doctrine (applicable to fugitives) to a criminal defendant who had been deported from the country by the ICE is denied as, absent additional circumstances not presented here, a defendant who has been deported does not stand in the same shoes as one who has voluntarily placed himself beyond the court's control.

Read More

Insurance Law

[03/10] Darvell v. Life Ins. Co. of N. Am.
In an ERISA action regarding defendant-insurer's denial of long-term disability benefits to plaintiff, summary judgment for defendant is affirmed where: 1) it was not an abuse of an ERISA plan administrator's discretion to ignore an opinion when the physician did not provide reliable objective evidence of testing or other proof to support a finding of long term disability; and 2) the plan administrator did not abuse its discretion by using the DOT description of plaintiff's occupation, rather than a description of his actual job duties.

[03/10] Abdelhamid v. Fire Ins. Exch.
In homeowner's action against her insurance company after it denied coverage to her for the fire that burned her house down, summary judgment in favor of the insurance company is affirmed as the trial court did not err in granting summary judgment on the breach of contract claim as plaintiff's failure to comply constituted material breach of her contractual duties.

[03/10] Scottsdale Ins. Co. v. Century Surety Co.
In an action against defendant-insurance company seeking equitable contribution based on defendant's failure to participate in the defense of 17 common insureds in hundreds of actions in which plaintiff and another insurer shared the costs of the defense, judgment of the trial court determining the equitable contribution is reversed as it was in conflict with the general rule (now to be applicable in insurance cases) that, in order to be entitled to equitable contribution, a party must have first paid more than its share of the loss and it bears the burden of proving such circumstance.

[03/10] Milwaukee Metro. Sewerage Dist. v. American Int'l Specilaty Lines Ins. Co.
In a sewerage district's suit for damages against an environmental liability insurer for denying coverage for costs incurred by the district in removing significant pollution on land it recently purchased, district court's judgment is reversed and remanded as the district court's finding that there was clear and convincing proof that a prior agreement existed between the insurance company and the sewerage district that the parcel would be covered property was clearly erroneous. Therefore, defendant is entitled to judgment on the sewerage district's reformation claim and, as a consequence, judgment in favor of defendant on its indemnity claim is vacated.

[03/10] Fortis Corp. Ins. SA. v. Viken Ship Mgmt. AS
In a maritime shipping case involving a claim for rust damage to steel coils caused by exposure to seawater during a journey from Poland to Ohio, judgment of the district court is affirmed where: 1) a ship manager charged with providing a Master, officers and crew, and performing various other ship-management tasks for the shipping vessel does not qualify as a "carrier" under the Carriage of Goods by Sea Act (COGSA), and thus the COGSA's one year-statute of limitations does not bar the underlying suit; and 2) defendant's claim that the district court's finding of negligence was based on clearly erroneous factual findings is rejected.

[03/09] George's Inc. v. Allianz Global Risks US Ins. Co.
In an action against an insurer claiming that defendant failed to indemnify plaintiff for business expenses and personal property losses as required under the terms of its insurance policy, partial summary judgment for defendant on the personal property claim is affirmed, but a partial denial of summary judgment on the business expenses claim is reversed where the policy unambiguously excludes coverage for plaintiff's claimed losses.

[03/09] HealthEast Bethesda Hosp. v. United Commercial Travelers of Am.
In an action for breach of an insurance settlement contract, summary judgment for plaintiff is affirmed where: 1) defendant was not an unsophisticated party because it had significant experience in handling and negotiating claims with healthcare providers; 2) because defendant bore the risk of mistake, the district court properly denied rescission based on unilateral mistake; and 3) the record of inaction by defendant strongly supported the denial of relief under both unilateral and mutual mistake.

[03/09] Seltzer v. Barnes
Trial court's denial of defendant's anti-SLAPP motion, arising from an underlying suit involving claims against a property management company and homeowners' association, is reversed where: 1) the trial court erred in concluding plaintiff's two causes of action against defendant do not arise from speech or petitioning activity where his alleged conduct was the negotiation of a settlement in the prior case; and 2) because defendant may not be held liable for the alleged conduct under the litigation privilege, plaintiff has failed to show a probability of prevailing on her causes of action for fraud and intentional infliction of emotional distress.

[03/03] City of Laguna Beach v. California Ins. Guarantee Ass'n
In a city's action against an insurance company seeking reimbursement for incurring workers' compensation liability that exceeded its self-insured retention, grant of insurance company's motion for summary judgment is affirmed where: 1) the addition of subdivision (c)(13) to Ins. Code section 1063.1 did not abrogate Denny's Inc. v. Workers' Comp. Appeals Bd., 104 Cal.App.4th 1433 (2003); 2) the trial court properly invoked the Denny's rule when it granted summary judgment and concluded that the city cannot obtain reimbursement from defendant under section 1063.1(c)(13) as, although this provision renders the obligation of an insolvent excess workers' compensation insurer a "covered claim" that defendant must ordinarily reimburse, defendant need not reimburse a permissibly self-insured employer for benefits paid to an employee for cumulative injury if the employer's liability is based in part on a period of time when the employer was self-insured and chose not to buy excess insurance for the particular risk.

[03/03] Fed. Ins. Co. v. Commerce Ins. Co.
In plaintiff-insurance company's subrogation claim, district court's grant of summary judgment in favor of defendants in concluding that the implied coinsured doctrine controlled the outcome in this case and precluded the plaintiff from pursuing a subrogation claim is affirmed as plaintiff has not met its burden of proving that the "Responsibility for Damages" provision of a Residence and Care Agreement (RCA) overcomes the presumption that the landlord's insurance is held for the mutual benefit of both parties.

Read More

Intellectual Property

[03/11] Delaware Valley Floral Group, Inc. v. Shaw Rose Nets, LLC
In plaintiffs' suit seeking declaratory relief against the inventor and owner of a patent relating to a process that produces larger rose heads by placing elastic, porous nets over the rose heads during the growing process, district court's grant of summary judgment pursuant to the on-sale bar under section 102(b) is affirmed where: 1) defendant failed to raise a genuine issue of material fact surrounding the dates of conception or commercial sales; 2) defendant failed to dispute that the invention was ready for patenting; and 3) defendant failed to show that the district court erred in disregarding the evidence presented in its motion for reconsideration.

[03/11] Lab. Corp. of Am. Holdings v. Metabolite Labs., Inc.
In an action for a declaratory judgment that plaintiff did not breach a license agreement for failure to pay know-how royalties on homocysteine assays performed after judgment had been entered in a prior patent infringement and breach of contract action, defendant's appeal from summary judgment for plaintiff is transferred to the Tenth Circuit as: 1) the present cause of action does not arise under federal patent law nor does defendant's right to relief necessarily depend on resolution of a substantial question of federal patent law, and thus, this court does not have jurisdiction over the appeal; and 2) this action is a state law contract dispute over know-how royalties brought pursuant to the district court's diversity jurisdiction.

[03/09] Richardson v. Stanley Works, Inc.
In an action for patent infringement relating to a design patent for a multi-function carpentry tool that combines a hammer with a stud climbing tool and a crowbar, a district court's finding of noninfringement is affirmed as the district court correctly construed the claim at issue and correctly determined that the patent was not infringed.

[03/08] Ajinomoto Co., Inc. v. Int'l Trade Comm'n
In plaintiffs' suit alleging violation of section 337 of the Tariff Act in the importation and sale of certain lysine feed products made by the methods claimed in their patents relating to improved methods of producing L-lysine with genetically engineered E-Coli bacteria, the International Trade Commission's determination of no section 337 violation is affirmed where: 1) the asserted claims of plaintiffs' '698 patent and '160 patents are invalid under 35 U.S.C. section 112 for failure to comply with the best mode requirement; and 2) plaintiffs' argument that the Commissioner erred in finding '698 patent is unenforceable due to inequitable conduct is waived.

[03/04] US v. Xu
Defendant's conviction for trafficking in counterfeit pharmaceutical drugs is vacated as to one count where a rational juror could not have found beyond a reasonable doubt that the Zyprexa mark, allegedly misappropriated by defendant, was registered on the USPTO's principal register.

[03/04] Tivo Inc. v. Echostar Corp.
In a patent infringement action against EchoStar, relating to the software component of plaintiff's patent that allows television users to simultaneously record and play broadcasts using what is commonly known as a digital video recorder (DVR), district court's decision finding defendants in contempt of a permanent injunction is affirmed where: 1) the district court did not abuse its discretion in its decision to hold contempt proceedings; 2) there was clear and convincing evidence before the district court to find that both types of EchoStar receivers continue to infringe and that it was not an abuse of discretion for the ocurt to find EchoStar in contempt of the infringement provision; and 3) given defendant's refusal to disable the DVR functionality in its existing devices and the fact that its original attempts to design around TiVo's patent were wholly unsuccessful, the district court had ample justification for its determination that court pre-approval of any new design-around effort was necessary to prevent future infringing activity.

[03/03] In re: Whirlpool Corp.
In a trademark infringement suit brought by LG Electronics against Whirlpool, relating to a dryer that uses steam to reduce wrinkles, Whirlpool's petition for a writ of mandate challenging the district court's order to disclose communications between its attorneys and its outside advertising agencies is denied as it failed to show both that the order will be effectively unreviewable if Whirlpool is forced to wait until the end of the case and also that the order is patently erroneous or usurpative in character. Furthermore, the Supreme Court held in Mohawk Indus., Inc. v. Carpenter, 130 S. Ct. 599 (2009), that rulings that allegedly infringe upon the attorney-client privilege are not appealable as collateral orders, and as such, the appeal must be dismissed for lack of jurisdiction.

[03/02] Reed Elsevier, Inc. v. Muchnick
In a class action alleging copyright infringement, a circuit court's ruling vacating a settlement class certification order for lack of subject matter jurisdiction is reversed where 17 U.S.C. section 411(a)'s registration requirement is a precondition to filing a copyright infringement claim, but a copyright holder's failure to comply with that requirement does not restrict a federal court's subject matter jurisdiction over infringement claims involving unregistered works.

[03/02] Davis v. Brouse McDowell, LPA
In plaintiff's legal malpractice suit claiming that defendants failed to timely file three patent applications related to a website-search engine, summary judgment in favor of the defendants is affirmed where: 1) the district court exercised proper jurisdiction over plaintiff's malpractice cause of action; 2) the court did not abuse its discretion in striking portions of the supplemental affidavit of plaintiff's patent law expert; and 3) plaintiff failed to introduce evidence sufficient to establish a genuine issue of material fact as to the patentability of her inventions.

[03/01] Comaper Corp. v. Antec, Inc.
In a patent infringement suit involving a patent directed to a cooling device designed to mount within the drive bay of a computer, district court's finding that defendant willfully infringed certain claims of plaintiff's patent, that certain independent claims were not invalid as obvious, and that certain dependent claims were obvious is affirmed in part, vacated in part and remanded where: 1) defendant's contention that a new trial is required because the district court's claim constructions were in error is rejected as the court's claim constructions were correct; but 2) the district court was required to grant a new trial because the jury's verdicts on obviousness were irreconcilably inconsistent.

Read More

International Law

[03/10] American Signature, Inc. v. US
In proceedings involving an importer of furniture that is subject to a 2005 antidumping duty order on certain entries of wooden bedroom furniture from China, a decision of the Court of International Trade denying plaintiff's motion for a preliminary injunction is reversed as plaintiff has satisfied the requirements for a preliminary injunction, and therefore, the Court of International Trade is directed to grant the preliminary injunction prohibiting Customs or Commerce from taking any action to liquidate or reliquidate import entries that are the subject of this action.

[03/02] Davis v. Brouse McDowell, LPA
In plaintiff's legal malpractice suit claiming that defendants failed to timely file three patent applications related to a website-search engine, summary judgment in favor of the defendants is affirmed where: 1) the district court exercised proper jurisdiction over plaintiff's malpractice cause of action; 2) the court did not abuse its discretion in striking portions of the supplemental affidavit of plaintiff's patent law expert; and 3) plaintiff failed to introduce evidence sufficient to establish a genuine issue of material fact as to the patentability of her inventions.

[03/02] Brzak v. United Nations
In a sex discrimination action against the United Nations and various UN officials, the dismissal of the complaint is affirmed where: 1) the UN and the related individual defendants had, respectively, absolute and functional immunity from suit; and 2) plaintiffs offered no principled arguments as to why the continuing existence of immunities violates the Constitution.

[02/23] Gonzalez-Vera v. Townley
In an action seeking to invoke one of 18 U.S.C. section 3523's enforcement procedures, the appointment of a guardian to help collect a judgment against an individual under the Witness Protection Program, the dismissal of the complaint is affirmed where: 1) Congress intended to make guardianship available only where the Attorney General found that the protected person was failing to make reasonable efforts?that is, only where disclosure to a guardian was necessary to enforce the judgment; and 2) here, the Attorney General determined that the protected person was making reasonable efforts to satisfy the judgment.

[02/16] Petition to Vacate an Adoption Decree, in the Adoption of John Doe
In a petition to vacate an adoption decree, the order granting the petition is affirmed where: 1) one of the adoptive parents became the child's father in June 2004, not only under the law of Cambodia but also under the law of New York; 2) his parental rights weren't effectively relinquished or extinguished; and 3) thus the other adoptive parent could not adopt the child without his consent (which was not given).

[02/16] US v. Duran
Defendant's conviction for knowingly acting in the U.S. as an agent of a foreign government is affirmed where: 1) the plain language of 18 U.S.C. section 951 and its corresponding regulations gave notice of what was prohibited and were readily understandable to a person of ordinary intelligence; 2) section 951's plain language made it clear that it was a general intent crime, as there was no mens rea element on the face of the statute; and 3) the district court did not abuse its discretion in excluding evidence of mens rea to show that defendant and his co-conspirators did not know of the notification requirement under section 951.

[02/10] Marathon A.G. Holding Ltd. v. CMS Enters. Co.
In an action for breach of contract based on defendant's refusal to indemnify plaintiff for its payments to the Republic of Equatorial Guinea in settlement of tax audits, summary judgment for defendant is affirmed where: 1) the plain language of the parties' agreement, informed by the parties' prior negotiations and the usage evidence, clearly established that defendant was required to indemnify plaintiff only for taxes paid for income that was earned before January 1, 2002; and 2) plaintiff's separate claim for indemnification for payment of withholding taxes was time-barred.

[02/08] Bardales v. Duarte
In a mother's petition seeking return of her children under the Hague Convention alleging that the father wrongfully retained the two older children and wrongfully removed the two younger children to the United States in violation of the Convention, the judgment of the trial court is affirmed where: 1) trial court had the power to dismiss the Convention petition for delayed prosecution and proceed on child custody matters; and 2) Convention and the International Child Abduction Remedies Act do not preclude dismissal of a petition for delayed prosecution.

[01/22] Baragona v. Kuwait Gulf Link Transp. Co.
In a tort action arising from the death of plaintiffs-parents' son in a traffic collision with a truck operated by defendant-Kuwaiti corporation in Iraq, a district court order vacating a default judgment against defendant is affirmed where the district court did not err in finding that defendant lacked the necessary minimum contacts with Georgia to give rise to personal jurisdiction.

[01/22] US v. Marquez
Defendant's RICO conspiracy conviction is affirmed where: 1) defendant failed to raise objections to his extradition from Spain in a timely manner; and 2) the district court did not abuse its discretion in denying defendant's other post-trial motions, for the reasons stated by the district court.

Read More

Labor & Employment Law

[03/11] Schaar v. Lehigh Valley Health Servs., Inc.
In plaintiff's suit against her former employer for violation of the FMLA, summary judgment in favor employer is vacated and remanded as an employee may satisfy her burden of proving three days of incapacitation through a combination of expert medical and lay testimony. Here, when expert medical opinion of a doctor that plaintiff was incapacitated for two days because of her illness is combined with plaintiff's lay testimony that she was incapacitated for two additional days, it necessarily follows that a material issue of fact exists as to whether plaintiff suffered from a serious health condition.

[03/10] Foley v. Town of Randolph
In plaintiff's 42 U.S.C. section 1983 suit claiming that he was wrongfully retaliated against in violation of his First Amendment rights when he was suspended, as Chief of the Fire Department, for fifteen days based on public statements he made at the scene of a fatal fire, summary judgment in favor of defendants is affirmed as, under the circumstances of the press conference in the case, there could be no doubt that plaintiff was speaking in his official capacity and not as a citizen when he addressed budgetary and staffing shortfalls at the department.

[03/09] San Francisco Hous. Auth. v. SEIU Local 790
Superior court's order vacating an arbitration award in its entirety on the ground that the the award is contrary to layoff provisions of the memorandum of understanding (MOU) between the parties is reversed as the remedy imposed by the arbitrator did not conflict with clear and explicit language of the MOU and it was rationally related to the breach identified.

[03/09] Lockridge v. Univ. of Maine Sys.
In plaintiff's gender discrimination, retaliation and hostile work environment action against a university, grant of summary judgment in favor of the university is affirmed where: 1) given the lack of any evidence suggesting that the university's proffered reason for denying plaintiff a pay raise was pretextual, plaintiff's gender discrimination claim fails as a matter of law; 2) university's denial of plaintiff's particular request for office space did not amount to a materially adverse employment action; and 3) the hostile work environment claim fails as a matter of law.

[03/09] Equal Employment Opportunity Comm'n v. Hosanna-Tabor Evangelical Lutheran Church & Sch.
In an employment discrimination and retaliation action brought by a teacher at a religious school claiming violations of the ADA, the district court's grant of summary judgment in favor of the defendant based on the "ministerial exception" is vacated and remanded as, given the factual findings relating to plaintiff's primary duties as a teacher, the district court erred in its legal conclusion classifying her as a ministerial employee.

[03/08] McBeth v. Himes
In a 42 U.S.C. section 1983 action arising out of an investigation by the sheriff's office and the Colorado Department of Human Services that resulted in plaintiff surrendering her license to run a daycare facility in Colorado, partial summary judgment based on qualified immunity to defendant-officials is affirmed in part where: 1) plaintiff voluntarily relinquished her license before any suspension proceedings could take place; and 2) defendants made a prima facie showing that they acted objectively reasonably when they sought suspension of plaintiff's daycare license. However, the order is reversed in part where plaintiff failed to allege and prove that the state officials lacked cause to seek suspension of her license.

[03/05] Rhine v. Stevedoring Servs. of Am.
In a petition for review of a decision of the Benefits Review Board under 33 U.S.C. section 921(c) of the Longshore and Harbor Workers' Compensation Act, the petition is denied where: 1) a reasonable mind could have concluded that the Pacific Maritime Association Average adequately represented petitioner's annual earning capacity; and 2) the availability of alternative employment was determined by reference to two criteria: the claimant's physical abilities and the economic availability of particular jobs in the market.

[03/05] Quasius v. Schwan Food Co.
In an employment discrimination action, summary judgment for defendant is affirmed where defendant failed to file a motion to withdraw his dispositive admissions after the district court provided ample notice and opportunity to do so.

[03/04] Smith v. Adventist Health Sys.
In plaintiff's action against defendant-hospital group seeking a preliminary injunction for rejecting his application for hospital privileges and medical staff membership at defendant's hospital, judgment granting the injunction and restoring his privileges is affirmed and the court did not err when it: 1) impliedly found that a statutorily required injunction bond had been waived or forfeited; 2) expressly found that plaintiff was likely to prevail on the merits; and 3) balanced the likely interim harm to the parties of granting or denying the preliminary injunction.

[03/04] Uphoff Figueroa v. Alejandro
In plaintiff's action against his employer, the Puerto Rico Electric Power Authority (PREPA) and several PREPA officials, claiming that the new Popular Democratic Party (PDP) regime discriminated against him because he was a member of the New Progressive Party (NPP), judgment in favor of the defendants is affirmed where: 1) under Branti v, Finkel, 445 U.S. 507 (1980), and its progeny, the position of administrator is not within First Amendment protection because it is a policy position; 2) political discrimination and retaliation claims under the First Amendment cannot be restated as claims under the Equal Protection Clause; and 3) plaintiff did not state a claim under the Fair Labor Standards Act because he did not allege he was involved in FLSA-protected activity.

Read More

Tax Law

[03/10] Hesse v. Sprint Corp.
In a class action alleging that defendant Sprint Corp. unlawfully collected a Washington state tax from Washington customers, summary judgment for defendant is vacated and remanded where a prior class action settlement challenged Sprint's billing of customers for certain federal regulatory fees, and the Washington plaintiffs' interests were not adequately represented in that litigation.

[03/05] Mike v. Franchise Tax Bd.
In an action by the Franchise Tax Board (FTB) to collect income tax from petitioner, an American Indian, for receiving more than $385,000 as her per capita distribution from her tribe's gaming operations on their reservation, trial court's entry of judgment in favor of FTB is affirmed as, the State of California may impose income tax on income received by an enrolled member of a tribe from his or her tribe's reservation activities when that member resides on the reservation of a different tribe.

[03/04] New York v. Golden Feather Smoke Shop, Inc.
In defendants' appeal from a preliminary injunction prohibiting the sale of untaxed cigarettes other than to members of the Unkechauge Nation for their personal use, the Second Circuit certifies the following questions to the New York Court of Appeals: 1) Does N.Y. Tax Law section 471-e, either by itself or in combination with the provisions of section 471, impose a tax on cigarettes sold on Native American reservations when some or all of those cigarettes may be sold to persons other than members of the reservation's nation or tribe?; 2) If the answer to Question 1 is "no," does N.Y. Tax Law section 471 alone impose a tax on cigarettes sold on Native American reservations when some or all of those cigarettes may be sold to persons other than members of the reservation's nation or tribe?

[03/03] Byers v. Intuit, Inc.
In plaintiff's putative class action on behalf of U.S. taxpayers against the IRS and a consortium of companies in the electronic tax preparation and filing industry (FFA) claiming violations of the Independent Offices Appropriations Act (IOAA) in the charging of fees in exchange for providing e-filing services, as well as a violation of section 1 of the Sherman Antitrust Act, dismissal of both claims is affirmed where: 1) the district court was correct in holding that the IOAA does not apply to the FFA members, as it only applies to a government agency and none of the exceptions in Thomas v. Network Solutions, Inc., 176 F.3d 500 (D.C. Cir. 1999) apply; and 2) the district court did not err in dismissing the Sherman Act claim as the FFA members are entitled to conduct-based implied antitrust immunity with respect to the anti-competitive action taken pursuant to the Ceiling Provisions of the 2005 Agreement with the IRS.

[02/26] US v. Bright
In defendants' appeal from the district court's order enforcing IRS summonses requiring production of documents, including those relating to offshore accounts, and finding defendants in contempt, the orders are affirmed in part where: 1) a taxpayer cannot refuse to produce a privilege log or documents for in camera review in response to an order to show cause and then protest an insufficient opportunity to present a claim of privilege; and 2) defendants were in contempt based on their failure to produce documents related to the two previously identified offshore accounts named in the summons. However, the order is modified where the district court's application of the foregone conclusion exception to records of two additional credit cards not named during the enforcement proceeding was clear error.

[02/22] Pleasures of San Patricio, Inc. v. Mendez-Torres
In plaintiff's challenge to a Puerto Rico cigarette excise tax recently imposed on "little cigars" imported from North Carolina, district court's dismissal of the suit for lack of jurisdiction is affirmed where: 1) plaintiff's suit falls within the ambit of suits barred by the Butler Act; and 2) Puerto Rico local courts provide a plain, speedy, and efficient remedy.

[02/19] US v. Long
Defendant's conviction for willfully failing to file income tax returns is affirmed where: 1) defendant did not clearly and unequivocally request to proceed pro se; and 2) in any event, defendant expressly waived his right to self-representation.

[02/17] Greer v. Comm'r of Internal Revenue
Tax Court's denial of petitioner's request for relief based on the tax code's innocent-spouse provision, 26 U.S.C. section 6015(b), and equitable-relief provision, section 6015(f), is affirmed where: 1) the Tax Court did not commit clear error in denying innocent-spouse relief based on the reason-to-know element of section 6015(b)(1) as plaintiff should have inquired into favorable tax benefits thrown off by the couple's investment; 2) tax court did not abuse its discretion with respect to its findings on reason to know in determining that petitioner had reason to suspect a possible understatement of taxes; and 3) tax court's finding on economic hardship did not amount to a clearly erroneous assessment of the evidence.

[02/10] Marathon A.G. Holding Ltd. v. CMS Enters. Co.
In an action for breach of contract based on defendant's refusal to indemnify plaintiff for its payments to the Republic of Equatorial Guinea in settlement of tax audits, summary judgment for defendant is affirmed where: 1) the plain language of the parties' agreement, informed by the parties' prior negotiations and the usage evidence, clearly established that defendant was required to indemnify plaintiff only for taxes paid for income that was earned before January 1, 2002; and 2) plaintiff's separate claim for indemnification for payment of withholding taxes was time-barred.

[02/09] Nestle Purina Petcare Co. v. Comm'r. of Int'l. Rev.
In the taxpayer's appeal from a tax court's ruling that the taxpayer could not deduct payments for cash distribution redemptive dividends, the order is affirmed where, because 26 U.S.C. section 404(k) did not provide for a deduction-for-dividends-paid under 26 U.S.C. section 561, the taxpayer did not have a "deduction for dividends paid (within the meaning of section 561)" needed to satisfy the exception in 26 U.S.C. section 162(k)(A)(iii).

Read More

Transportation

[03/10] Fortis Corp. Ins. SA. v. Viken Ship Mgmt. AS
In a maritime shipping case involving a claim for rust damage to steel coils caused by exposure to seawater during a journey from Poland to Ohio, judgment of the district court is affirmed where: 1) a ship manager charged with providing a Master, officers and crew, and performing various other ship-management tasks for the shipping vessel does not qualify as a "carrier" under the Carriage of Goods by Sea Act (COGSA), and thus the COGSA's one year-statute of limitations does not bar the underlying suit; and 2) defendant's claim that the district court's finding of negligence was based on clearly erroneous factual findings is rejected.

[03/02] Bhd. of Maint. of Way Employees' Div. v. Burlington Northern Santa Fe Railway Co.
In an action by a union claiming that a railroad's proposed sale of a portion of its rail line to the state violated the Railway Labor Act (RLA), dismissal of the action is affirmed where the RLA reserved the dispute in this case to the Adjustment Board in the first instance, thus depriving the district court of jurisdiction, and the workers' remedy thus lay in the administrative process before the Adjustment Board.

[02/26] Pasternack v. NTSB
In a petition for review of the FAA's revocation of petitioner's airman certificates on the ground that petitioner refused to take a mandatory drug test, the petition is granted where the FAA erred by relying on an "implicit credibility determination" by the Administrative Law Judge (ALJ), when in fact the ALJ made no such credibility determination.

[02/24] American Trucking Assns., Inc. v. Los Angeles
In an action seeking preliminary injunctive relief against certain regulations imposed by the Port of Los Angeles, a local governing body, upon motor carriers entering the Port premises, a denial of injunctive relief is affirmed in part where: 1) the Port was acting out of safety concerns when it enacted each challenged requirement; and 2) the Federal Motor Carrier Act granted only the Interstate Commerce Commission, the agency charged with issuing certificates of convenience, the power to revoke motor carriers' certificates of convenience. However, the order is vacated in part where 49 U.S.C. section 14506(a) did not contain a safety exception.

[02/23] Brown v. Ala. Dep't of Trans.
In a Title VII action alleging a racially discriminatory failure to promote plaintiff, judgment for plaintiff is affirmed in part where there was ample evidence of racial discrimination specific to three of the promotions at issue, suggesting that defendant's proffered reasons were pretextual. However, the judgment is reversed in part where: 1) the evidence was insufficient to support a finding of discrimination or retaliation as to the remaining six promotions; 2) the jury's backpay award was plainly a cumulative figure reflecting each of the promotions, and thus a remand for recalculation was required; and 3) clarification was also required as to a portion of a permanent injunction requiring that plaintiff be instated to a "comparable position" pending her promotion.

[02/22] Cooper v. FAA
In a Privacy Act action based on an exchange of information about plaintiff performed as part of a joint criminal investigation by multiple federal agencies, summary judgment for defendant is reversed where actual damages under the Privacy Act encompasses both pecuniary and nonpecuniary damages.

[02/18] In the Matter of N.Y. City Transit Auth.
In a CPLR article 75 proceeding to vacate a labor arbitration award which modified a New York Transit Authority employee's penalty (for allegedly assaulting a member of the public) from termination to reinstatement without back pay, confirmation of the award is affirmed where the arbitrator did not exceed his power under the collective bargaining agreement by modifying the disciplinary sanction imposed on an employee by a transit authority.

[09/25] In re Union Pacific R.R. Co.
In plaintiff's negligence action against the Union Pacific Railroad Company when it collided with another train releasing toxic fumes to nearby residents, defendant's petition for writ of mandamus is granted as the trial court abused its discretion when it compelled the defendant to produce confidential information relating to shipping rates and the defendant met its burden of establishing that the information is protected by trade secret privilege, and the plaintiff failed to demonstrate how the information is necessary or essential to the fair adjudication of the case.

[08/26] Reid v. Hindt
In a personal injury action arising from an automobile accident, judgment and award for plaintiff is affirmed where, despite plaintiff's motion for a new trial and opposition to an additur motion, the trial court did not violate plaintiff's right to a jury trial by granting defendant's motion for additur after a jury award of zero damages. The right to a jury trial only requires that defendant consent to additur and plaintiff consent to remittitur.

[08/24] General Motors Corp. v. Grenier
In an action brought by a former auto mechanic suffering from a fatal form of lung cancer claiming that dust from brake shoes and other friction products manufactured by defendant-Ford Motor Company caused his illness, a judgment in favor of plaintiff following a prior remand is affirmed where: 1) there was no abuse of discretion in the admission of certain of plaintiffs' experts testimony; 2) there was no merit in Ford's claims that it was entitled to judgment as a matter of law or a new trial.

Read More