Wednesday, January 21, 2015


The Second Circuit has held that it is within the State's police power to require children to be vaccinated in order to attend public school and that such a requirement does not violate the First Amendment or other constitutional rights.

Citing Supreme Court precedent, the Second Circuit held that the right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill
health or death.

The Second Circuit further held that the Supreme Court had held in 1905 that a compulsory vaccination law was not a violation of substantive due process.

The Court also held that the plaintiffs had not made a showing of any violation of the Equal Protection clause of the Constitution.

Finally, the Court held that the Ninth Amendment was not a source of individual rights, and, accordingly, the plaintiffs claim under that amendment could not stand.

The decision is Phillips v. City of New York can be found here.

Tuesday, January 20, 2015

Repudiating arbitration agreements 

The Second Circuit has held that, pursuant to 13 U.S.C. 1787(c), the Nation Credit Union Administrative Board ("NCUA") may repudiate the contract of a credit union that it is liquidating, including any arbitration clauise.

In National Credit Union Administration Board v. Goldman, Sachs & Co., NCUA brought a lawsuit against Goldman, Sachs on behalf of a credit unit that it was liquidating.  Goldman Sachs sought to arbitrate the claims, pursuant to a Cash Account Agreement that contained an arbitration clause.  The NCUA repudiated the agreement and claimed that it was not obligated to arbitrate.

Goldman Sachs claimed that the NCUA's repudiation of a contract is equivalent to that of a trustee in bankruptcy, and that, pursuant to Second Circuit precedent, a trustee in bankruptcy cannot repudiate an arbitration clause.  The Second Circuit, however, held that its prior precedent does not hold that a bankruptcy trustee may not reject an arbitration agreement or clause.

Goldman Sachs further argued that, under common law, a repudiation of an agreement constitutes a breach, and a breaching party is still bound by the contract.  The Second Circuit held that the common law was inapplicable because the statute gave the NCUA the right to repudiate.

Finally, Goldman, Sachs argued that repudiation does not apply to purely procedural provisions of the contract, and, accordingly, the arbitration clause was not enforceable.  The Second Circuit, while not acknowledging that arbitration agreement are "purely procedural," held that Goldman, Sachs had shown neither reason nor authority supporting the proposition that arbitration agreements should be excluded from the NCUA's repudiation power.

The decision can be found here.

Tuesday, May 06, 2014

Foreign Securities 

The Second Circuit as  a matter  of first impression, considered whether the bar on extraterritorial application of the United States securities laws, as set forth in Morrison v. National Australia Bank Ltd., 561 U.S. 247 (2010), precludes claims arising out of foreign‐issued securities  purchased  on  foreign  exchanges,  but  cross‐listed  on  a domestic exchange.  It concluded that federal courts had no jurisdiction to consider such claims under the Securities and Exchange Act of 1934.

The decision in City of Pontiac Policeman's and Fireman's Retirement System v. UBS AG can be found here.

Monday, March 24, 2014

Penal Law Rule 

In an interpleader action brought by the United States, the District Court granted summary judgment to Brazil, one of the parties who claimed entitlement to certain funds, holding that Brazil was entitled to the funds under a Brazilian forfeiture law, which was grounded in Brazil criminal law.  The other parties seeking the money claimed that summary judgment was not appropriate in that enforcement of the forfeiture law violated the common law penal law rule under which a country will not enforce the penal laws of another country.  On appeal, the Second Circuit held that summary judgment had been improperly granted based on the penal law rule, however, it also held that because Brazil was seeking assistance from the United States Attorney General in enforcing its forfeiture judgment, pursuant to 28 U.S.C. 2467, the District Court should allow Brazil and the Attorney General time to complete this process before taking further action in the case.

The decision in United States v. The Federative Republic of Brazil can be found here.

Tuesday, November 19, 2013


The Second Circuit upheld the decision of the District Court and held that a company's use of its "Mr. Charbucks" and "Charbucks Blend" trademarks is not likely to dilute by blurring Starbuck's trademarks.

The decision in Starbucks Corp. v. Wolfe's Borough Coffee, Inc. can be found here.

Wednesday, October 16, 2013

Statutes of Limitations in CERCLA Actions 

If the State brings a remedial action -- that is, measures to permanently remediate hazardous wastes --   under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), the statute of limitations begins to run by the commencement of cleanup construction.  If a State brings a removal action -- that is, measures taken to address immediate threats to public health -- the statute of limitations begins to run at the completion of the removal action.

In State of New York v. Next Millenium Realty, LLC, a case involving pollution emanating from the New Cassel Industrial Area in the Town of Hempstead, the District Court had held that the action was a remedial action, and granted summary judgment to the defendants, claiming that the limitations period had run.  The Second Circuit disagreed, holding that it was a removal action and that because the removal action was not complete, the statute had not even begun to run.  The Court found that the actions taken by the state were taken to address an immediate threat to public health and did not permanently remediate the environmental problem at issue.  Hence, the case was not time barred.

The decision in this case can be found here.

Wednesday, October 09, 2013


An attorney who informed the Court that her client had asserted a gender discrimination case when he had not, and who was sanctioned sua sponte by the District Court got a break from the Second Circuit.    When a Court sanctions Rule 11 sanctions sua sponte, the standard is different.  When a party moves for Rule 11 sanctions, the standard as to whether sanctions should be imposed is the subjective unreasonableness of the attorney's conduct.  However, because a sua sponte decision to sanction an attorney under Rule 11 does not provide the 21-day safe harbor protection, which allows the attorney to correct his or her conduct, the standard is different.  The Second Circuit has held that the standard is subjective bad faith.  The Court found that the record could not support a finding of bad faith and reversed and vacated the District Court's decision imposing sanctions.

The decision in Muhammad v. Walmart Stores East, L.P. can be found here.

This page is powered by Blogger. Isn't yours?