Thursday, April 19, 2018

Serving as a juror. The Court assumed, without deciding, that the inability to serve as a juror is a collateral conseqence of a conviction is sufficient to support a writ of coram nobis in Porcelli v. United States. This did not help Porcelli because the Court denied the petition on the merits. The decision can be found here.
Correction. No, this is not a correction of a misstatement I have made on this blog -- or anywhere else for that matter. I am correcting a misstatement of fact made by Jeffrey Toobin in his fascinating book on the Supreme Court, The Nine. On page 77, Toobin states that Judges Richard Arnold and Morris Arnold "were the only brothers in American history to serve on the same federal court of appeals.


Well, apparently Toobin has never heard of Augustus Hand and Billings Learned Hand of the Second Circuit.

Wednesday, March 28, 2018

Ban on Alcohol reversed; rest of sentence OKed

Betts was a bad boy.  He had been convicted of bank fraud, and sentenced to two years imprisonment and five years' supervised release.  The Court had also required that he pay restitution and to notify his probation officer within 72 hours if he was arrested.  Betts had been arrested for driving without a license, and he had not notified his probation officer.  He also had not made the restitution payments.  He pleaded guilty to violating his plea agreement.  He was sentenced to 10 months' imprisonment and an additional four years of supervised release.  As part of his sentence, the Court required him to abstain from alcohol use during his supervised release and required substance abuse testing, stating that there would be zero tolerance for the use of any drugs at all.  Betts appealed.

The Second Circuit rejected Betts's position that the four years of supervised release was unreasonable because if was within the Sentencing Guidelines range, although on the high side of the range.  Any sentence within the Guidelines range is deemed presumptively reasonable.  The Court similarly rejected Betts's claim that his offense did not warrant the four years and that the District Court had wrongly rejected his mitigation evidence.

The Court found that the requirement that the zero tolerance for the use of any drugs was permissible, noting that it did not apply to any prescription drugs.

The Court did find that the ban on alcohol was not not reasonably reasonably related to any of the factors outlined in Section 5D1.3(b) of the Guidelines and vacated that provision of the sentence.

The decision in United States v. Betts can be found here.

Friday, March 23, 2018

Preempted by the Organic Foods Production Act

Three parents brought a class action against Abbott Laboratories, Inc., claiming that it had included in its baby formula, which was purported to be "organic," contained ingredients not allowed by the Organic Foods Production Act (the "Act").  Their claims were brought under New York and California statutory and common law.  The trial court dismissed the action, holding that the claims were preempted by federal law.  On appeal, the Second Circuit affirmed.  The Act allows Abbott to label its formula organic pursuant to a certified organic plan.  All Abbott did was state that its product was certified organic, which is was.  The Court held that the parents' claim would require an adjudication of the product's organic status, something not envisioned by the Act.  Accordingly, the state law claims were preempted and the case dismissed.  The Second Circuit's decision is in accord with a decision of the Eighth Circuit.

The decision in Marentette v. Abbott Laboratories, Inc. can be found here.

Wednesday, August 09, 2017

Checking the boxes

In McLeod v. The Jewish Center of the Blind, the pro se plaintiff had brought a discrimination action, but had failed to check the boxes on the form discrimination complaint indicating that, in addition to seeking relief under Title VII, she was seeking relief under the New York State Human Rights Law and the New York City Human Rights Law.  Her state law claims were dismissed on the pleadings and her federal claims were dismissed on summary judgment.

The plaintiff appealed, and the Second Circuit vacated the judgment and remanded the case to the district court, holding that, setting aside the unchecked items on the form complaint, based on the plaintiff's handwritten allegations, the district court should have been aware that the plaintiff was asserting claims under New York State and New York City law.  The Court stated  that "our holding is rooted in our well-worn precedent concerning a district court’s obligation to liberally construe pro se submissions. We do not expand that obligation here, nor do we purport to task district courts with the responsibility of scouring obscure bodies of law in order to come up with novel claims on behalf of pro se litigants. Rather, we conclude that in this case, where McLeod’s factual allegations supported claims under the well-known antidiscrimination provisions of the NYSHRL and NYCHRL, our existing precedent required the district court to construe McLeod’s complaint as asserting claims under those laws, regardless of her failure to check the appropriate blank on a form complaint"

The decision in the case can be found here.

Friday, May 12, 2017

Value of a rescission claim

The Second Circuit, in a claim brought under the Magnuson-Moss Warranty -- Federal Trade Commission Improvement Act, held that the value of a contract, without offset, is the amount in controversy for purposes of a rescission claim that was brought under the Act, agreeing with the Third and Sixth Circuits.  In Pyskaty v. Wide World of Cars, LLC, the plaintiff sued the defendant, from whom she had purchased a car for violating the Act and under state law.  The cost of the car was $51,195.  The defendant claimed that the amount in controversy did not meet the jurisdictional threshold for a claim brought under the Act ($50,000), believing that the value of the claim was the amount paid under the contract minus the actual value of the car.  While the district court agreed with the defendant and dismissed the claim, the Second Circuit reversed, holding that the value of the claim met the jurisdictional threshold.

A copy of the decision in this case can be found here.

Wednesday, April 05, 2017

Adequate Notice under Fair Debt Collection Practices Act

In Carlin v. Davidson Fink, the defendant, a law firm engaged in, among other things, the business of debt collection and foreclosure actions, commenced a foreclosure action against the plaintiff.  The defendant attached to the complaint a "Notice Required by the Fair Debt Collection Practices Act," which stated that the debt set out in the complaint will deemed to be valid unless the plaintiff disputed it within 30 days of receipt of the Notice.

On July 12, 2013, The plaintiff sent a letter to the defendant within the 30-day period disputing the validity of the debt and requesting a verification of the dollar amount of the the purported debt.

On August 9, 2013, the defendant complied, but stated that the amount provided included certain fees that were not yet due, and that if the amount was paid and any of those fees did not actually become due, such fees would be refunded.

The Fair Debt Collection Practices Act requires that within five days of an initial communication with a consumer, a debt collector has to provide a written notice containing, among other things, the amount of the debt.

The action was brought because plaintiff claimed that the defendant had not complied with that requirement.  The defendant moved to dismiss.the action, which motion was denied, but on a motion for reconsideration, the court dismissed the action.  The plaintiff appealed.  The two questions at issue was which document was the initial communication, and whether the notice had been provided.

The Court first held that the complaint was not the initial communication.  The Second Circuit had previously held that a complaint could be an initial communication, but the statute had been amended to eliminate a pleading as an initial communication.

The plaintiff's letter was not an initial communication because an initial communication under the statute was one sent by the debt collector to the consumer.

The Court held that the defendant's August 9, 2013 letter to the plaintiff was the initial communication.

The Court then held that the notice contained in the letter did not comply with the statute because because it "d[id] not specify what the 'estimated fees, costs,  [and] additional payments' are."  The Court stated that "[w]e do not hold that a debt collector may never satisfy its obligation under [the statute] by providing a payoff statement that provides an amount due, including expected fees and costs.  But a statement is incomplete where, as here, it omits information allowing the least sophisticated consumer to determine the minimum amount she owes at the time of the notice, what she will need to pay to resolve the debt at any given moment in the future, and an explanation of any fees and interest that will cause the balance to increase."

The Court acknowledged that the defendant's notice may be common in the debt collection interest, but stated that the Fair Debt Collection Practices Act "does not insulate a debt collector from liability merely because others in the industry engage in the same practice."

The Court vacated the order and judgment of the District Court and remanded the case for further proceedings.

The decision in this appeal can be found here.

Wednesday, February 22, 2017

No Common Law Right of Public Performance for Creators of Pre-1972 Sound Recordings

A decision in Flo & Eddie, Inc. v. Sirius XM Radio, Inc has come down.

The plaintiff, which claim to own the rights to the recordings of "The Turtles," a well-known band with a string of hits in the 1960s, sued Sirius XM Radio, Inc., a radio and internet-radio broadcaster, claiming that Sirius infringed on the plaintiff's copyright in The Turtle's recordings.  On a motion for summary judgment, Sirius claimed that there was no public performance rights in pre-1972 recordings under New York law and that if such a right existed, it violated the Dormant Commerce Clause.

The District Court held that there was such a right and that it did not violate the Dormant Commerce Clause.  Sirius then moved for reconsideration or to certify its order for interlocutory appeal.  The Court denied the motion for reconsideration, but certified both the summary judgment and reconsideration orders for immediate appeal.

On appeal, the Second Circuit decided that there was an unclear issue of state law that should be decided by the New York State Court of Appeals -- whether there is a right of public performance for creators of pre-1972 sound recordings.

On December 20, 2016, the Court of Appeals held that New York common law does not recognize such a right.

Based on this finding, the Second Circuit reversed the District Court's order denying summary judgment and remanded the case to the District Court with instruction to grant Sirius's motion for summary judgment and to dismiss the case with prejudice.

The New York State Court of Appeal's decision can be found here.  The Second Circuit's decision can be found here.