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Friday, December 31, 2004

Forfeiture. Barbara Pacheco purchased certain real property that the government was trying to forfeit from a criminal defendant. Pacheco knew about this in that a notice of pendency was filed long before she bought it. However, because the criminal defendant's wife had an interest in the property, Pacheco's purchase may be valid as to her purchase of the wife's interest -- or, at least, the Second Circuit, on its appeal from a motion to dismiss, did not find otherwise. The decision in United States v. Serendensky can be found here.

Thursday, December 30, 2004

Split. The Second and the Seventh Circuits are split over the degree to which a felony law on company disclosures shields them from shareholder suits. There is an article on this in today's New York Law Jouranal on this issue. This may not be available to non-subscribers. Sorry.

Wednesday, December 29, 2004

New en banc case. Here is the order of the Second Circuit relating to the new en banc case, Muntaqim v. Coombe. Oral argument will be heard on April 7, 2005. For anyone interested in the original opinion, see here.

Monday, December 27, 2004

Definition of "Wilful" Under the Family and Medical Leave Act of 1993. The Second Circuit, in accordance with a decision of the First Circuit, has held that the definition of "wilful" under the Fair Labor Standards Act should be used under the Family and Medical Leave Act of 1993 as well. The Supreme Court has held that an employer acts willfully under the Fair Labor Standards Act when he or she "knew or showed reckless disregard for the matter of whether it sondcut was prohibited by the [FLSA]." "If an employer acts reasonably in determining its legal obligation, its action cannot be deemed willful . . . . If an employer acts unreasonably, but not recklessly, in determinining its legal obligation, then . . . it should not be . . . considered [willful.]"
Under the context of the Family and Medical Leave Act, this issue is pertinent to the extent of a statute of limitation. The case in Carlton v. New York University School of Law can be found here.

Thursday, December 09, 2004

Certified Question. The Second Circuit has certified the following questions to the Supreme Court of Connecticut:

What is the correct interpretation of "chronic" disabilities under the Connecticut Fair Employment Practices Act (the "Act")?

At what point, in relation to the act of discrimination complained of, must a disability qualify as "chronic" to support recovery under the Act?

If the Act applies only to disabilities that are "chronic" at the timie of the alleged act of discrimination, is evidence of the progression of an illness or injury after the alleged act of discrimination probative of whether that disability was in fact "chronic" when the alleged act of discrimination occurred?

The case involved a worker who was laid off and claimed that he was the victim of discrimination under the Act and the Americans with Disabilities Act.

The decision in Caruso v. Siemens Business Communication Systems, Inc. can be found here.

Deadbeat Mom. Joanne Venturella, divorced from James Ferretti, who was awarded custody of the couple's two children, was ordered to pay child support in the amount of $450 every two weeks. She refused to do so. To prevent her pay from being garnished, she left her job and moved to Florida, where she worked as a tutor at a private school.

But her day of reckoning came. She was indicted, under 19 U.S.C. 228, which provides that a person who owes over $10,000 in child support obligations with respect to children who reside in another state. The primary issue at trial was whether Venturella "resided" in Florida. She claimed that the definition of "residence" should be the same as "domicile," which would require a showing that she intended to permanently live in Florida with no intent of returning to New York. The Government claimed that "residence" should be defined as her principal, actual dwelling place, which, it contended, was Florida.

The District Court adopted the Government's position over Venturella's objection. She was found guilty and was sentenced to 15 months' imprisonment, followed by one year of supervised release and a special assessment of $100 and ordered restitution of $59,073.06.

Venturella appealed, and the Second Circuit affirmed. It held that to require an intent to remain as part of the definition of "resides" could lead to absurd results. It also noted that such a definition was at odds with the focus of the statute -- to offer federal criminal penalties against parents who willfully fail to honor their child support obligation and live in another state.

The Second Circuit rejected her position that the legislative history supported the position that residence within the meaning of the statute meant domicile. On the contrary, it held that the legislative history supported the Government's position.

The Court also rejected Venturella's arguments that the District Court's failure to hold the statute unconstitutionally vague and that the District Court's failure to instruct the jury on a dual residence defense were plain error. (Neither issue was raised before the District Court.) Finally, it dismissed the appeal as to her ineffectiveness of counsel claim in that its regular practice was not to hear such arguments on direct appeal.

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

Tuesday, December 07, 2004

No New Life to Barred Claims. The question in In re Enterprise Mortgage Acceptance Co., LLC Securities Litigation (really three unconsolidated appeals heard together) is whether section 804 of the Sarbanes-Oxley Act revived previously expired securities claims. The Second Circuit has held that previously time barred claims are not revived pursuant to that section.

In each of the cases, the plaintiffs had initiated actions for securites fradu prior to the passage of the Act. Then, after the Act was enacted, one plaintiff added additional claims and another added an additional defendant, trying to take advantage of the Act's extended statute of limitations.

The Court noted that normally statutes are not given retroactive effect. If the statute does not clearly provide that Congress intended it to be applied retroactively, then the statute will not be given retroactive effect if giving such retroactive effect would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed.

The Court concluded that Congress did not clearly give the statute retroactive effect. Further, the Court held that reviving time-barred claims has an impermissible retroactive effect by stripping defendants of an affirmative defense.

The decision can be found here.

Sunday, December 05, 2004

Statutory Interpretation Saves the Day! An 18-year old was about to be sent up the river for 10 years advertising to distribute or receive child pornography, but the Second Circuit, through a tour-de-force of statutory interpretation vacated the sentence and remanded to the District Court. You can read the decision in United States v. Pabon-Cruz here.

Wednesday, December 01, 2004

Rule changes. Several Second Circuit Local Rules have been amended. See here for details.

Pro bono. Here is the Second Circuit's Plan for the Appointment of Pro Bono Counsel.

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