Monday, December 25, 2006

New favorite blog. I'm so glad I found it. There's actually a blog about splits among the circuit couts. Appropriately named Split Circuits, the blog is written by Professor A. Benjamin Spencer of the University of Richmond School of Law. It's definitely worth your while.
Moot. E.I Dupont de Nemours & Co. ("Dupont") sought to enjoin a company from acquiring another company. Dupont argued that the transaction would violate a contract it had with the acquiring company. The District Court denied Dupont's motion for a preliminary injunction, and Dupont appealed.

After the notice of appeal had been filed, the transaction at issue broke down. Dupont moved to dismiss its appeal and to remand the Court with instructions to dismiss the action. The Court agreed to do so, holding that while a voluntary cessation of allegedly illegal contact does not render an appeal moot where such cessation is a stategic litigation move, this is not the case where the party alleging the illegal contact asserts that the claim is moot and where the cessation of the alleged wrongdoer was not done to avoid a possible adverse decision by the Court. While the possibility that the acquiring company might at a later date seek again to acquire the other company, it was not attempting to do so currently. Hence, the case was moot.

The decision in E.I. Dupont de Nemours & Co. v. Invista B.V. can be found here.
Appeal Dismissed. A criminal defendant in United States v. Moreno-Rivera filed an untimely notice of appeal. The government moved to dismiss. The defendant, under prior Second Circuit, claimed that the Court should remand the case to the District Court with instructions to vacate the judgment and enter a new judgment from which an appeal could be taken based on the inadequate assistance of appellate counsel. The Government argued that the precedent only applied in cases where it was undisputed that the defendant had instructed his counsel to file a notice of appeal and the counsel did not do so in a timely manner. The Second Circuit agreed, finding that the record on the issue did not clearly show that the defendant had asked his attorney to file a notice of appeal and dismissed the appeal.

The decision in this case can be found here.

Friday, December 15, 2006

Ownership of Kidney. The Second Circuit had referred certain questions relating to the ownership of a kidney to the New York Court of Appeals. The plaintiff had sued the New York Donor Network, Inc., claiming that it had violated his rights in a kidney by delivering the kidney to someone else. The Court held that the plaintiff did not have a private right of action against the Donor Network because the kidneys at issue were medically incompatible with him.

The Court of Appeals' decision in Colavito v. New Your Organ Donor Network, Inc. can be found here. My prior post on this case can be found here. The case will now return to the Second Circuit for resolution.

Wednesday, December 13, 2006

Update. The Government has decided to appeal from the District Court's decision in American Council of the Blind v. Paulson, the case which requires the Government to make its paper money so that the blind can tell the difference between a one and a twenty.

My prior post on this case can be found here. Of course, it's only two posts down, so you might not want to bother clicking and just scroll down.

Tuesday, December 05, 2006

Law Student Blog. As my regular readers (and I know there are not many of you) know, I have adopted a law student blog as my own special blog. This is my second such blog, the first being the gone-but-not-forgotten Letters of Marque by Heidi Bond (now clerking for Judge Kozinsky of the Ninth Circuit). My new law student blog is by a nameless student from a nameless school. I had previously mentioned the blog, but it has changed its name. It's now called Butterflyfish. I gather that the anonymous blogger is a fish enthusiast. Check it out. I'm sure you'll like it.

Thursday, November 30, 2006

OK, this is not about the Second Circuit, but I couldn't let the recent memorandum opinion of the District Court of the District of Columbia go by without comment. In American Council of the Blind v. Paulson, the Court held that U.S. paper money is illegal and that the government must come up with a new permutaition of our bills to make them distinguishable to blind and visually-impaired people. It's true. The decision can be found here

I don't usually get comments on this blog (though the comment feature is active), but I figure someone has to have something to say about this. Will the government comply or will it appeal the decision? And is the decision right?

Tuesday, November 28, 2006

Princeton lawsuit. This is not about the Second Circuit, but since I got a nice e-mail about a blog about the lawsuit against Princeton for the misuse of a huge donation, I thought I'd link to it, so you could check it out.

Tuesday, November 21, 2006

When is filing? The Class Action Fairness of 2005 provides that a court of appeal must "complete all action on such appeal [from a district court's grant or denial of a motion to remand], including rendering judgment, not later than 60 days after the date on which such appeal was filed, unless an extension is granted under [28 U.S.C. 1453]." If judgment is not rendered within that period, then the appeal is deemed denied. In DiTolla v. Doral Dental IPA of New York, LLC, the defendant filed a petition for permission to appeal on May 119, 2006, but the petition itself was not granted unitl 66 days later on July 24, 2006. Defendant's brief was filed on August 17, 2006 and on September 21, 2006, the parties stipulated to a 60-day extension. But if the appeal was filed at the time of the appeal, then the 60-day period ended long before the stipulation was executed and the case should have been deemed denied.

The Court raised this issue sua sponte. It decided that the 60-day period begins on the day that the Court grants the petition to appeal is filed. This decision is consistent with the holdings of the Seventh Ninth and Eleventh Circuits on the same issue.

On the issue raised by the plaintiff on appeal, the Court ruled that the party seeking to remove a case to federal court has the burden of showing that the case meets the jurisdictional amount. This case, in which an accounting was sought, the defendant was unable to make that showing. The Court affirmed the decision of the District Court remanding the case to the state court.

The decision can be found here.
Collateral Estoppel. In a state court action, a default judgment was entered against two individuals, the Ottimos, and the companies they controlled. At the close of the inquest, the state court found that the individuals had committed fraud. Five years after the entry of judgment, the Ottimos filed for bankruptcy. The plaintiff in the state court action brought an adversary proceeding, contending that his judgment against the Ottimos was non-dischargeable because it was based on fraud. He moved for summary judgment, claiming that the issue could not be relitigated because of collateral estoppel.

The Bankrupty Court denied the motion, holding that collateral estoppel could not be applied in instances where the prior judgment was obtained by default. The plaintiff appealed to the District Court.

The District Court reversed, holding that the issue of fraud need not have been actually litigated. The Ottimos nned only to have been afforded the opportunity to litigate the issue. They had been afforded the opportunity. The Ottimos appealed.

The Second Circuit noted that under a bankruptcy court is bound by a liability determination in a default judgment unless an exception (judgmetn procured by collusion or fraud, lack of jurisdiction) exists. No such exception was applicable in this case.

The Court then determined that the issue in the two cases, i.e., the fraud, was identical, and that fraud had been proven to a higher burden in the state court than would be required to show nondischareability in a bankruptcy court. It held that collateral estoppel was applicable and affirmed the decision of the District Court.

The decision in Evan v. Ottimo can be found here.

Tuesday, November 14, 2006

It's back. Earlier in the year, I blogged on the case United States v. Parker here. Well, the case is back to the Second Circuit. The case had been remanded for a possible resentencing. The District Court, in light of the prior litigation, appointed a new counsel to conduct the resentencing proceedings. Parker, through his prior counsel, Mahoney, moved for reconsideration of that order. Ultimately, the Court decided not to resentence Parker and denied his motion for reconsideration. Parker appealed.

The Second Circuit held that the District Court had not abused its discretion in substituting a new attorney to represent Mahoney. Also Mahoney was not a member of the Second Circuit's CJA Panel, while the new attorney was. And the new attorney had represented Parker on the remand. Accordingly, the Court affirmed the decision of the District Court, appointing the new counsel. The new counsel would continue to represent Parker on the appeal.

The decision can be found here.

Wednesday, November 08, 2006

Tooting my own horn. Just wanted to alert appellate practioners and others interested in what goes on in the appellate courts to a new project of mine. I have long been a member of the ABA and an active member of its Section of Litigation's Appellate Practice Committee. Well, to spice up the Committee's webiste, I have started a feature called "The Appellate Buzz" providing news about what's going on in appellate courts throughout the country. Obviously, I can't report on everything that goes on in every appellate court in the country, but I try to be diverse and interesting, and it is updated twice a week (not as good as a blog, but what can I do). Feel free to check in out.
Appealable? Here's an odd case raising an issue of appealablility.

An employee sued an insurer, who had refused to pay her disability benefits, and her employer.
The District Court dismissed the claims against the employer, holding that they were preempted by ERISA, and remanded the case against the insurer, holding that it had applied the wrong standard in categorizing the requirement of the employee's occupation. At the end of its order, the District court stated that the Clerk of the Court was directed to close the case.

The employee appealed the dismissal of her claims against her employer, and her employer moved to dismiss the appeal because the order was not final in lght of the remand.

The Second Circuit denied the motion, holding that there was no danger of piecemeal appeals in allowing the appeal to go forward.

The case is confusing in that the District Court did not make the requisite determination that there is no just reason for delay nor was there an express direction by the District Court for the entry of judgment (although there was a direction to close the case) as required by Rule 54(b) of the Federal Rules of Civil Procedure in order to make the order appealable. It appears that the Second Circuit, without saying so, made the requisite determination itself and deemed the direction to close the case as a direction to enter judgment. But is that valid? I am unaware of any Circuit Court that has evaded the requirements of Rule 54(b) in this manner (though I intend to look into the matter). If anyone else knows of any case law relating to this issue, please let me know.

The decision in Nelson v. Unum Life Insurance Co. can be found here.
Bankruptcy Trumps Divorce. The Second Circuit held when marital assets have been awarded to the wife in a state court matrimonial proceeding, those assets do become part of a husband's bankruptcy estate if a Chapter 7 petition is filed after the state court's decision had been rendered, but before the state court judgment is entered. The District Court had held that entry of the judgment was merely ministerial and that the assets could be taken by the wife, but the Second Circuit, in a per curiam decision, vacated and remanded the decision.

The decision in Musso v. Ostashko can be found here.
Election Law Provisions Upheld. The Second Circuit upheld certain provisions of the New York Election Law in Person v. New York State Board of Elections. Person had sought a preliminary injunction, seeking to enjoin the enforcement of certain provisions of the Election Law. The District Court denied the injunction, and Person appealed.

First, Person challenged a provision of the Election Law that limited payment of any compensation to individuals hired to circulate electoral petitions. The Second Circuit noted that the provision at issue has long been interpreted in New York "as not imposing an impermissible burden on vote gathering because if does 'not prohibit[] the procurement of signatures wither by volunteers or paid workers.'" Individuals can still be paid on a daily or weekly basis, but their payment cannot be contingent on the number of signatures they get.

Second, Person argued that a prohibition on per-signature payment violated Supreme Court precedent. The Second Circuit joined the Eighth and Ninth Circuit in holidng "that a state law prohibiting the payment of electoral petition signature gatherers on a per-signature basis does not per se violate the First or Fourteenth Amendments."

Finally, Person challenged the assignment of official status only to parties whose gubnatorial candidates had, in the last gubnatorial election, received 50,000 votes violates his First and Fourteenth Amendment rights because it conditions official status on a party's candidate for governor rather than some other candidate that the party might have preferred to nominate and support. The Second Circuit noted that there was no constitutional right to appear on a ballot and noted that courts have upheld an array of restrictions on ballot access. In consonance with the precedents, the Court held that the provision did not violate Person's rights.

Although the decision says nothing about it, it appears that Mr. Person was a candidate for the Green Party.

The decision can be found here.

Thursday, October 26, 2006

Not testimonial. The Second Circuit has held that autopsy reports are not testimonail under Crawford v. Washington, and the failure to have the opportunity to cross-examine the author of such reports before their admission into evnidence does not violate the Sixth Amendment.

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

Tuesday, October 24, 2006

Dead. A police officer who was hit by a SUV operated by Second Circuit Judge John M. Walker, Jr. died. The accident is still under investigation, but the police had seen no need to have the judge tested for drug or alcohol use.

Friday, October 20, 2006

Not final. In Honeywell Int'l, Inc. v. Purculator Products Co., the court entered an order, granting summary judgment on the issue of liablity under the Employee Retirement Income Security Act. The case then settled. The defendant made an application to compel the plaintiff to pay attorneys' fees and costs. The plaintiff sought to appeal from the order granting summary judgment on liability, which was the predicate for the request for fees. The Second Circuit dismissed the appeal. The order was moot in that the case was settled and could not be appealed, and, to the extent that it was the predicate for the application for fees, an appeal could not be taken until the Court had decided that fees would be granted and the amount of such fees. Until that determination was made, the decision was not final and not appealable.

The decision can be found here.

Thursday, October 19, 2006

One occurrence or Two? Well, it's mixed news for Larry Silverstein. The Second Circuit has held that the terrorist attack on the World Trade Center on 9/11 was one occurrence for certain insurers bound under the so-called Will-Prop form, but upheld the jury verdict finding that, for purposes of other insurers not bound by that form, the attack constituted two occurrences. This may warrant further discussion after I've had a chance to read it in full. It's a long one, over 70 pages.

The decision in SR International Business Insurance Co. v. World Trade Center Properties can be found here.

Monday, October 16, 2006

Substantial Compliance. The Second Circuit has held that substantial compliance with IDEA is not sufficient to prevent a preliminary injunction being issued against a school district. While the Secretary of Education is permitted to withhold funds from a school district that has not substantially complied with IDEA, that requirement does not provide a district to avoid injunctive relief if it substantially complies with the statute. It is required to provide a free, appropriate public education.

The Second Circuit, in DD v. New York City Department of Education, however, held that the plaintiffs were not entitled to relief immediately, but "as soon as possible."The case was remanded to the District Court for a decision under the correct standards. The Court suggested that the preliminary injunction motion be combined with the merits and that the entire controversy be adjuciated.

The decision can be found here.

Tuesday, October 10, 2006

Executory. A bankruptcy court held that a contract to exchange certain parcels of land for which all performance had been completed except for the reimbursement of certain construction expenses could be rendered fully executory, rendering it incapable of rejection, by a bankruptcy debtor when the final payment is tendered post-petition. On appeal, the District Court affirmed on the issue that the contract was an executory contract as of the petition date, but rejected the Bankruptcy Court's holding that executory contract status should be determined as of the rejection motion date. The District Court remanded the case to the Bankruptcy Court for further proceedings consistent with its opinion. The debtor appealed.

The Second Circuit dismissed the appeal, holding that the case was not final. The ultimate issue of whether the debtor should have been allowed to reject the contract was still before the Court. Although both parties asserted that the further proceedings would be ministerial only, the Second Circuit, nevertheless, held that appellate jurisdiction was lacking for lack of finality and declined to create a new exception to the final judgment rule.

The decision in COR Route 5 Co., LLC v. The Penn Traffic Co. (In re The Penn Traffic Co.) can be found here.
Chapter 3. Well, it's about time for another post relating to Martha Graham School and Dance Foundation, Inc. v. Martha Graham Center of Contemporary Dance, Inc. When previously before the Second Circuit, the Court had held that Martha Graham had transferred most of her works to the Martha Graham Center of Contemporary Dance, Inc. and remanded the case to the District Court to resolve the issue of who owned seven of her dances. On remand, the District Court rejected the plaintiffs' motion for a new trial and held that the Center also owned the seven dances. The plaintiffs appealed.

The Second Circuit held that the plaintiffs' motion for a new trial was untimely in that it was made more than a year after the original judgment.

The Second Circuit also held that certain evidence had been properly excluded and did not warrant reversal.

The decision in this case can be found here.
Presumption against preemption. There is a Supreme Court case, Buckman Co. v. Plaintiffs' Legal Comm., which held that state fraud-on-the FDA claims (claims alleging that companyies had fraudulently induced the FDA to approve their products, causing damage) were impliedly preempted by federal law. Michigan has a statute that narrows liability for companies making FDA-approved products. The law provides that if the device or drug is approved by the FDA, the company is immune from state law tort claims unless the company withheld or misrepersented information that would have altered the FDA's decision to approve the drug. The issue raised in Desiano v. Warner-Lambert & Co. was whether, under the rationale of Buckman, federal law also preempts traditional common law claism that survive a state's legislative narrowing of common law liability through a fraud exception to that statutory limitation. The Court, holding that there was a presumption against preemption, held that such a claim would not be precluded under Buckman.

The decision can be found here.

Wednesday, September 27, 2006

Endeavoring. The Second Circuit addressed the issue of whether the cross-reference of United States Sentencing Guidelines 2J1.2 with 2X3.1 for cases "involving obstruction" of an investigation applies when there was no actual obstruction, but merely an "endeavor" to obstruct justice. The Second Circuit held that that cross-reference does apply whether there is actual obstruction or merely an endeavor to do so.

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

Monday, September 25, 2006

Burn!!!! This is not a post about a Second Circuit case (it's about a Seventh Circuit case), but the sanction imposed by Judge Easterbrook for a frivolous motion is worth mentioning to all appellate practitioners. The appellant in Custom Vehicles, Inc. v. Forest River, Inc. moved to have the Court strike sections of its opponent's brief, claiming that it contained unsupported assertions of fact. The Judge acknowledged that it was possible that the appellant's reading of the record might be correct and the appellee's wrong, but then asked why the appellant believed that the Court was going to redact his adversary's brief. He explained that the proper method of pointing out errors in an appellee's brief is to point them out in a reply brief. Judge Easterbrook noted that the"judiciary has quite enough to do deciding cases on their merits" and pointed out that there was no rule for "a judicial blue pencil."

As a sanction, Judge Easterbrook deducted twice the length of the motion from the permissible length of a reply brief.

The decision can be found here. Oh, and thanks to Howard Bashman of How Appealing for pointing this decision out.

Friday, September 22, 2006

Not contempt. The Second Circuit reversed a conviction of criminal contempt against a plaintiff in a civil action, arising from her contact with a juror in the courtroom cafeteria during the trial of her case. The plaintiff had given the juror, who she knew she was not supposed to talk to, some papers, which she told the juror that she should read.

The plaintiff had been charged under 18U.S.C. 401(1), for a direct contempt of court. However, in order to be convicted of that statute, a party would have to have committed the contempt in or near the courtroom. The Second Circuit held that the cafeteria, ten floors away from the courtroom was not sufficiently near the courtroom to trigger the statute. The Court stated that: "Unlike jury rooms, witness rooms, or immediately adjacent hallways, the cafeteria is not a place 'set apart' for official court business, or for the use of jurors or other trial participants."

In that the government had failed to prove an essential element of its case in this contempt proceeding, the judgment was reversed and the case remanded with instructions to enter a judgment of acquittal. The decision in United States v. Rangolan can be found here.
Bankruptcy Rule 8001 Dismissal. A bankruptcy debtor appealed a dismissal of his bankruptcy case but did not include a transcript of the proceedings below, as required by Bankrutptcy Rule 8006. The district court dismissed the appeal, without considering the merits, pursuant to Bankruptcy Rule 8001 because of the debtor's failure to include the transcript. The debtor appealed to the Second Circuit.

The Second Circuit adopted a flexible approach to Rule 8001 and declined to adopt any fixed rules about what district court must do in the Rule 8001 context and held that a court should exercise its discretion given the factual circumstances of a particular case. The Court stated that district courts should consider whether a lesser sanction (other than dismissal) might be appropriate, whether counsel's behavior evinces bad faith or a pattern of negligence, whether any party has suffered prejudice as a result of the attorney's conduct and whether the litigant should be granted the opportunity to rectify the problem.

In this case, the debtor, who acted pro se (but who was a bankruptcy lawyer), believed the transcript was not necessary because it contained only argument, not testimony. The Court found that dismissing the case had been an abuse of discretion. The Court noted that the district court did not give the debtor an opportunity to rectify the error. The Court was also concerned that serious questions on the merits, which might have been resolved in the debtor's favor, had been left unresolved.

The Court vacated the judgment of the district court and remanded the case for proceedings not inconsistent with its decision. The decision in In re Harris can be found here.

Wednesday, September 20, 2006

New blogger. Well, with the graduation of Heidi Bond from law school and the blogosphere (at least temporarily, while she's clerking for Judge Kozinski), I have decided to adopt a new 1L blog. My new adoptee is Law Mommy of Law and Mommyhood. Check it out. I'm sure you'll like it.

Friday, September 01, 2006

Apprentice Finalist. I don't know if you watched the Fifth Season of The Apprentice, Donald Trump's show, but one of the final four was an appellate attorney, Roxanne. So I decided to see what she's up to. According to The Apprentice website, she worked for Winstead Sechrest & Minick, P.C., a Texas firm. But she doesn't seem to be working there anymore because there is nobody named Roxanne in their appellate department. A little more poking around on the internet reveals that she has set up a consulting firm (and her full name is Roxanne Wilson). But the website doesn't reveal what the firm does, and it seems to indicate that she's still practicing law. I enjoyed watching her and rooting for her on The Apprentice, and I hope she does well -- in appellate litigation. Just for the record, she is a graduate of the University of Michigan Law School and clerked for two Texas Supreme Court justices. (University of Michigan? I wonder if she knows Heidi Bond.)

Wednesday, August 30, 2006

Where are the women? This post is not about the Second Circuit. It's about Supreme Court clerks. For the first time since 1994, the number of women clerking for Supreme Court Justices is in the single digits. What gives?

Tuesday, August 29, 2006

Attorney's Lien. Cassie Sutton retained Leeds Morelli & Brown ("LMB") to represent her in a discrimination action against her former employer. Her retainer agreement with LMB provided that she would pay a $5,000 retainer upon signing the agreement and two additional payment of $2,500. LMB would be entitled to 40% of any settlement, less all retainer payments, or 40% of a damage award after trail, without deduction for retainer payments. Sutton paid $5,000 plus one $2,500 payment. LMD filed a Title VII action against her employer. The parties reached a settlement where Sutton would be paid $15,000, but the agreement was not executed. Sutton told LMB that she would not sign because she was uncomfortable with having LMB represent her.

LMB wrote to the Chief Magistrate Judge, informing her that it wished to be removed as counsel after Sutton raised questions with the firm regarding a news story implicating it in possible unfair settlements in other cases. The Magistrate Judge relieved the firm as counsel. LMB than applied to the Magistrate Judge for a charging lien in the amount of $37,879.18 (less the $7,500 retainer payments) on Sutton's file. It also asked for an immediate payment of $544.54 in expenses. Sutton opposed the application and sought return of the payments that she had made.

The Magistrate Judge denied Sutton's request for return of the payments, granted LMB's request for its expenses and granted an attorney's lein in the amount of $10,490.50. Sutton sent a letter to Judge Gerson objecting to the Magistrate Judge's order. Judge Gerson treated the letter as an appeal from the order, and affirmed the order. While these proceedings were ongoing, Sutton filed a notice of appeal.

The Second Circuit found that it had appellate jurisdiction. The notice appeal was either a timely notice of appeal from the Magistrate Judge's judgment or was a premature notice of appeal from Judge Gerson's judgment, confirming the Magistrate Judge's judgment.

The Court noted that had Sutton accepted the settlement, LMB would have been provided to no additional payments (other than expenses) because 40% of $15,000 is less than the $7,500 it had already been paid. Hence, the Court held that LMB was entitled to its expenses, that Sutton was not entitled to a return of the funds she had already paid and vacated the charging lien.

The decision is Sutton v. New York City Transit Authority can be found here.

Monday, August 28, 2006

Appropriate Delegation. The International Emergency Economic Powers Act authorizes the President to regulate financial transactions with foreign countries or nationals in a time of security crisis and prescribes criminal penalties for violations of the president's regulations. Osmah Al Wahaidy pleaded guilty to transferring money to Iraq on three occasions in 1999 and 2000 in violation of the regulations enacted pursuant to the Act, but reserved his right to challenge the constitutionality of the Act. He moved to dismiss the indictment, which motion was motion was denied, and he appealed from the order denying the motion, claiming that the Act improperly elegated Congress's authority to define criminal offenses to the executive branch.

The Second Circut held that the delegation was not improper. The Court noted that only twice had a delegation of power been found unconstitutional, even in cases involving criminal offenses.

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

Friday, August 25, 2006

Discriminatory Transfer. An employee of the Westchester County Department of Social Services filed complaints against the County and DSS to the EEOC and the New York State Division of Human Rights, claiming that they had discriminated against him on the grounds of his age, race, gender and religion. He was transferred out of his job to another position. Although the transfer did not affect his job title, job grade, salary, benefits or hours of work, he had been stipped of his prior responsibilities, which were replaced by menial tasks. The employee brought a retailiation claim. The district court granted the County's motion for summary judgment, holding that the employee had not shown sufficient evidence that he had suffered an adverse employment action.

The Second Circuit reversed, holding that there was genuine triable issue of fact as to whether the employee's reassignment dould well have dissuaded a reasonable employee in his position from complaining of unlawful discrimination. The case was remanded to the district court for further proceedings.

The decision in Kessler v. Westchester County Department of Social Services can be found here.

Wednesday, August 23, 2006

250th Column. Those Second Circuit groupies are certainly familiar with the regular column of my former colleagues and friends, Martin Flumenbaum and Brad Karp (both partners at Paul Weiss Rifking Wharton & Garrison LLP) on the Second Circuit. Today's New York Law Journal, features their 250th column, which deals with the evolution of the Second Circuit over the past two decades. Congratulations, guys. Keep on writing them!

Tuesday, August 22, 2006

Credibility Findings Arbitrary. While an appellate court rarely overturns credibility findings in Zhu v. Gonzalez it did so. The Immigration Judge found an alien seeking asylum was not credible because her testimony was contradicted by a statement made by her husband, which itself was contradicted by another, neither of which were subject to cross-examination. The Board of Immigration Appeals affirmed the Immigration Judge's opinion. The Court, in vacating and remanding, the decision, sould not understand "from the record, why the [immigration judge] would conlcude that, on the one hand, [the husband, who had come to the United States earlier] had 'no reason to lie or make up a claim' and that his asylum application was therefore reliable but that, on the other hand, [the wife, the petitioner in this case] was fabricating her version."

The decision can be found here.

Monday, August 21, 2006

Another certification. Lot's of certifications these days. In Thyroff v. National Mutual Insurance Co., the Court certified the following question to the New York Court of Appeals:

Is a claim of conversion cognizable for electronic data?

The decision in that case can be found here.
It's Pigott! While it's not strictly Second Circuit news, Eugene F. Pigott, Jr. of the Supreme Court of the State of New York, Appellate Division, Fourth Department has been named to replace Judge George Bundy Smith on the New York State Court of Appeals. Justice Pigott had been a frontrunner for the last seat, but lost out to Robert S. Smith. (So at least there's one Smith still on the Court.) I assume confirmation hearings will be held soon.

Friday, August 18, 2006

Disparate Impact. A group of black and Latino teachers brought an action against the New York City Department of Education and the New York State Education Department, claiming that the defendants have discriminated against them by using two standardized certification tests, which they claim had a disparate impact on the employment prospects of blacks and Latinos. Although, after trial, the District Court found that the tests did have a disparate impact, the defendant avoided liability because the tests were "job-related."

The Second Circuit vacated the District Court's decision and remanded for further proceedings. The Court also dismsised the action as to the New York State Education Department. The Court informed the District Court that it must use the law set out in its opinion to decide if the tests involved had been properly validated (an issue upon which the case hinged).

The decision in Gulino v. New York State Education Department can be found here.

Thursday, August 17, 2006

Not reinstated. A lawyer, who had been disbarred by the bar of the State of New York, was disbarred from the District Court of the Eastern District of New York by default order of reciprocal disbarment in 1997. In 2005, he thought reinstatement to the Eastern District bar, which was denied without prejudice for him to renew the application if and when he is reinstated into the New York bar. The lawyer appealed, holding that the requirement that he be reinstated was arbitrary. The Second Circuit reversed, holding that a district court may reasonably require an attorney seeking reinstatement to meet the requirements for original admission to that bar and that the Eastern District's failure to reinstate him was not arbitrary. The decision in In re Kandekore can be found here.

Wednesday, August 16, 2006

Speaking of certifications. In that one of today's posts concerns two recent cases where the Second Circuit certified questions to the New York Court of appeals, I thought it might be of interest that one litigant (not in the Second Circuit) has asked the Supreme Court to grant cert on the question of whether there should be a presumption in favor of cerification.
Chapter 13 Plan and Res Judicata. The Second Circuit has held that a Chapter 13 bankruptcy confirmation order is res judicata with respect to the debtor's and the Trustee's post-confirmation attempt to avoid a confirmed, recorded lien on the debtor's property where the lien was claimed by the debtor at the outset of the bankruptcy proceedings and included in the plan. The decision in Celli v. First National Bank of Northern New York (In re Celli) can be found here.
Not extraterritorial. In Ofori-Tenkorang v. American International Group, Inc., the Second Circuit held that 42 U.S.C. 1981 does not prohibit discriminatory conduct occurring while a plaintiff is outside the jurisdiction of the United States. The decision in that case can be found here.
More certfied questions. In two decisions issued on August 15, 2006, the Second Circuit certified questions to the New York Court of Appeals.

In White Plains Coat & Apron Co. v. Cintas Corp., the Court certified the following question:

Does a generalized economic interest in soliciting business for profit constitute a defense to a claim of tortious interference with an existing contract for an alleged tortfeasor with no previous economic relatinship with the breaching party?

The decision in that case can be found here.

In Highland Capital Management LP v. Schneider, the Court certified the following question:

Based on this record, do the eignt promissary notes issued by McNaughton Apparel Group, Inc., to the Schneiders fall within the definition of a "security" as contemplated by Section 8-102(15) of the New York Uniform Commercial Code?

The decision in that case can be found here.

Friday, August 11, 2006

Random. In MacWabe v. Kelly, the Second Circuit held that random, suspiciousless searches at the NYC subway are constitutional. The decision can be found here.

Thursday, August 03, 2006

On vacation. Sorry for the lack of posts in recent days. I'm off to the ABA Annual Meeting in Hawaii and was frantically catching up on work beforehand. We all can't be Howard Bashman. I'll try to post in the next few days, if I can, but I will be back in New York on August 10 at which time regular posts will resume.

Thursday, July 20, 2006

Presumed Lying. The Second Circuit overturned a verdict where the district judge had instructed the jury that the defendant had a strong motive to lie and his testimony should be closely scrutinized. The Court held that such an instruction presumed the defendant's guilt and the charge was so unbalanced as to amount to reversible error, especially in that the case was a close one, based on credibility findings.

The decision in United States v. Gaines can be found at the Second Circuit website. It was decided on July 20, 2006.
Moving. The Second Circuit Clerk's Office Records, Mail, and Intake Division will relocate to 500 Pearl Street (3rd Floor) on Monday, July 24, 2006. The public counter will be closed and there will be no access to records on July 24. The Night Depository Box will be relocated to 500 Pearl Street, at the Worth Street entrance, and will be available for use at that location starting at 5 pm on Friday, July 21. Normal operations ( 9 am - 5 pm) will resume at the new location on Tuesday, July 25. Documents due on July 24 will be accepted for filing on Tuesday, July 25.

Wednesday, July 19, 2006

Sex Discrimination in a Retaliation Action. A plaintiff filed a complaint with the EEOC, claiming that her employer had discriminated against her. While she had only checked Retaliation on her Charge of Discrimination form, she had alleged acts of sexual discrimination. The EEOC gave her a right to sue letter. She brought an action, alleging, among other things, claims of sexual discrimination. The District Court dismissed that claim, asserting that the plaintiff had not exhausted her administrative remedies.

The Second Circuit vacated the dismissal of the sex discrimination, holding that the sexual discriminaton was "reasonably related" to the retaliaion claim to allow the discrimination to be brought in federal court. The allegations were sufficeint to have put the EEOC on notice of a potential sex discrimination claim existed even though she did not check the SEX box on the Charge of Discrimination Form.

The decision in Williams v. New York City Housing Authority can be found at the Seconjd Circuit website. The case was decided on July 19, 2006.

Tuesday, July 18, 2006

Answers. In a prior decision, the Second Circuit certified certain questions to the New York Court of Appeals. The questions were:

1. Is it possible for a client to ratify an attorney's fee agreement during a period of continuous representation?

2. Is it possible for a client to ratify an attorney's fee agreement during a period of continuous representation if attonrney misconduct has occurred during that period? If so, can ratification occur before the attorney has committed the misconduct?

3. Is it possible for a client to ratify an unconscionsable attorney's fee arrangement?

The Court of Appeals answered all three questions in the affirmative although it noted that ratification induced by misconduct would be invalid and that it would be ra are case when unconscionable agreement may be ratified by the client.

The Supreme Court remanded the case to the District Court for further proceedings to decide the issue of unconscionability.

The decision in King v. Fox can be found at the Second Circuit website (decided on July 18, 2006). The New York Court of Appeals decision can be found here. I'm sorry for my inability to provide a direct link. Someone's been monkeying with the Second Circuit website. I used to be able to find direct links by using the search enginge at, but that appears not to work anymore. I will try to find out what the problem. If anyone has any ideas, let me know.

Wednesday, July 12, 2006

Chapter 3. The Martha Graham saga is back before the Second Circuit. After the last appeal, the Second Circuit had remanded the case to the district circuit solely to resolve the issue of who owned certain dances created by Martha Graham from 1956 to 1965. The District Court held that Martha Graham had assigned the common law copyrights in the dances to the Martha Graham Center of Contemporary Dance and that Graham's heir, Ronald Protas had no right to them.

To add to the confusion, before the evidentiary hearing on this issue, Protas had sought a new trial and relief from the prior judgment based on newly discovered evidence and fraud. The Court had denied that application.

On appeal, the Second Circuit held that Protas's motion for a new trial and relief from the prior judgment was untimely because it was made more than a year after the judgment was entered. Protas had argued that the one-year period should not have begun to run until after the judgment after remand. The Second Circuit held that its prior decision, because it had affirmed the District Court, did not alter the positions of the parties so as to restart the time limit. With respect to the seven dances at issue on remand, Protas had gotten a new trial. Hence, the merits of the motion were not reached.

Protas also argued that the District Court had improperly to admit certain documents into evidence, but the Second Circuit held that the documents did not relate to the ownership of the seven dances at issue.

Finally, the Second Circuit held that the District Court had not abused its discretion in ruling that Martha Graham had assinged all her rights in the seven dances to the Center.

The deciison in Martha Graham School and Dance Foundation, Inc. v. Martha Graham Center of Contemporarty Dance, Inc. can be found here.
Not Final. A plaintiff was seeking long-term disability benefits. The plan administrator held that he was not entitled to them, and he appealed that determination to the District Court. The District Court remanded the case to the plan administrator to reconsider the eligibility of the plaintiff for long-term disability benefits under the correct emplyment description . (The record was unclear whether the correct job description had been used by the plan administrator.) That decision was appealed. The Court held that it was not a final judgment. There is a dispute among the circuits as to whether a remand to a claims administrator under ERISA can ber be a final decision and had never been decided by the Second Circuit. But the Court held that under the law of any circuit, this remand order would not be appealable. No legal question had been decided by the district court The district court had not found the denial of benefits to be erroneous nor was an error of law embedded in the denial. The remand was made because the factual record was unclear as to whether the defendant had considered plaintiff's correct job description while applying the correct and undisputed legal standard. The appeal was dismissed for lack of appellate jurisdiction.

The decision in Viglietta v. Metropolitan Life Insurance Co. can be found here.

Thursday, July 06, 2006

Same sex marriage. Well, it isn't a Second Circuit case, but it's pretty important to New Yorkers. The New York State Court of Appeals has held that the New York Constitution does not require that the option of marriage be available to couples of the same sex. For the opinion (written by Judge Robert Smith) can be found here. Chief Judge Kaye and Judge Ciparick dissented. Judge Rosenblatt took no part in the case.

Wednesday, July 05, 2006

Exhausted. The Second Circuit has held that where an employee benefit plan sets up administrative remedies after a claim has already been filed in court, the claimant is deemed to have exhausted his (or her) administraive remedies, pursuant to 29 CFR 2560.503-1(l). The decision in Eastman Kodak Co. v. Coyne can be found here.

Friday, June 30, 2006

Certified. The Second Circuit has certifed the quesiton of whether an NASD employee terminations form, a Forum U-5, is subject to an absolute or a qualified privilege in a libel action. The decision in Rosenberg v. Metlife, Inc. can be found here.

Thursday, June 29, 2006

And the nominee is . . . Well, President Bush has nominated Debra Ann Livingston for a seat on the United States Court of Appeals for the Second Circuit. See here for more info.

Sunday, June 11, 2006

Nondischargeable. The Second Circuit, in Ball v. A.O. Smith Corp., has held that a judgment of sanctions entered against a lawyer under 28 U.S.C. 1927 and Rule 11 of the Federal Rules of Civil Procedure is a non-dischargeable debt for "willful and malicious injury by the debtor to another" for purposes of Bankruptcy Code 523(a)(6).

The decision in that case can be found here.

Monday, June 05, 2006

New Legal Blog. And this one is pretty new, having started in April. Say hi to Susan McDonald and her Legal Research and Writing Blog in which she blogs about legal research and writing. Susan is a Nashville, Tennessee attorney. Welcome to the

Sunday, June 04, 2006

Letters of Marque. For the last three years, I have been enjoying Letters of Marque, the blog of law student, Heidi Bond. As I've mentioned, Heidi is no longer a law student, and I gather that she will not be blogging for the foreseeable future, certainly not while she is clerking for Judge Alex Kozinski. So I'm taking the blog off my blogroll. At present, the blog is empty. While there is a second blogger, L, from what I gather, he or she (we don't know which) is not a law student.

Thursday, May 25, 2006

Change in the Law. Congress passed a statute (18 U.S.C. 2709) that allows the FBI to issue National Security Letters, i.e., administrative subpoenas, to internet service providers (ISPs) that allows the FBI to gain access to subscriber information or electronic communication transaction records held by the ISP when that information is relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities. Two ISPs challenged the statute. The district courts ruled on the constitutionality of the statute, but, in the interim, Congress amended the statute, changing some of the relevant provisions.

With regard to the first ISP, the Second Circuit held that because the statute had been changed to provide for pre-enforcement judicial review, the ISP's Fourth Amendment claim no longer existed. That portion of the appeal was declared moot and the part of the district court's decision on that issue was vacated.

With regard to the First Amendment clains raised by the ISP, the statute originally did not allow the ISP to seek counsel in that it required the ISP not to disclose the existence of the subpoena to anyone. The statute was amended to allow talking to an attorney with respect to the request. The ISP, however, maintained that the amended statute still violated its First Amendment rights. The Second Circuit held that it should not decide the issue. It vacated the portion of the district court's decision relating to that issue and remanded the case to the district court for furhter proceedings, including possible new pleadings.

With respect to the second ISP, which dealt with the portion of the statute forbidding the ISP from revealing that it is a recipient of such a subpoena, the district court had granted an injunction. The government has now conceded that the ISP can reveal its identity renders the appeal moot. The Court did not vacate the decision because it was presumptively correct and the valuable to the legal community as a whole.

The decision in Doe v. Gonzales can be found here.

Wednesday, May 17, 2006

Going Up. I'm going out on a limb here and predicting that a new Second Circuit case will go up to the Supreme Court. Riegel v. Medtronic, Inc. raises, among other things, the question of whether section 360k(a) of the 1976 Medical Device Amendments to the Food, Drug, and Cosmetic Act preempts coomon law tort claims regarding medical devices that have entered the market pursuant to the Food and Drug Administration's rigorous premarket approval process. There is a split in the Circuits, with the Second Circuit joining the Third, Fifth, Seventh and Eigth Circuits holding that the federal statute does preempt common law tort claims. The Eleventh Circuit holds that it does not. With a 5-1 split, I might not be so confident of certiorari being granted, but there is also a split among the state courts that have dealt with that question with Texas and Pennsylvania coming out in favor of preemption and Illinois, New York, Washington and Oregon coming out against. Cases in California have come out on both sides of the question.

The decision can be found here.

Monday, May 15, 2006

Fair Use. The Second Circuit held that the use of seven images in a 480-page book on the story of the Grateful Dead constituted fair use (under the circumstances). The decision in Bill Graham Archives v. Dorling-Kindersley Limited can be found here.
Unreviewable discretion. The Second Circuit refused to review an immigration judge's discretionary refusal to find that the petitioner had shown "unusual or outstanding equities" sufficient to overcome the extremely adverse circumstances -- repeated convictions of crimes -- to justify granting him a waiver of removal under the Immigration and Nationality Act. The Court held that it had no jurisdiction to review the immigration judge's finding, under 8 U.S.C. 1252(a)(2)(B)(ii). The petitioner had also failed to raise any colorable constitutional claims or questions of law sufficient to invoke the Court's jurisdiction, under 8 U.S.C. 1252(a)(2)(D).

The decision in Avendano-Espejo v. Department of Homeland Security can be found here.

Friday, May 12, 2006

Third Circuit Blog. Those federal public defenders are spreading. First, the Second Circuit Blog, and now the Third Circuit Blog. As far as I can tell, it deals solely with criminal matters, which is not surprising in that it's run by public defenders. And it's not a new blog. It's been around since January 2005. Hey, I annoumce them as I find one.

BREAKING NEWS: OK, it's not really news, but it looks like each circuit has one. (The Fifth Circuit Blog site is still under construction.) So if you practice criminal law in federal courts, there's a blog for you.

Thursday, May 11, 2006

Congratulations. I would be remiss in not acknowledging the recent gradulation of cyber-friend (we've never actually met or spoken in real life) Heidi Bond of Letters of Marque from the University of Michigan School of Law, where she was an editor of the law review and a winner of the coveted Bates award (I'm not exactly sure what it is, but I'm sure it is coveted) and will be going on to clerk for Judge Alex Kozinski. Best of luck. I'm sure we will be hearing great things from her in the near future.
Another new blog. Well, it's not so new -- it apparently has been running since November 4, 2005 -- but it's new to me. Meet Legal Writing Prof Blog. It's about -- surprise -- legal writing and it is run by Nancy Soompaa of Texas Tech University School of Law and Sue Liemer of Southern Illinois University School of Law. Welcome (belatedly) to the blogosphere and congratulations on scoring another link.

Monday, May 08, 2006

Limitation of Liability. What luck. A provision in an Express Cargo Bill limiting liability to $500per package has saved The Burlington Northern and Santa Fe Railray Compnay from being socked with major damages when its change from Long Beach, California to Chicago, Illinois derailed. The actual loss for the destruction of two engines was $234,585.88. Because there were two engines involved, the defendants had to pay $1,000. The lawyer who wrote that contract deserves a bonus.

The decision in American Home Assurance Co. v. Hapag Lloyd Container Line GmbH can be found here.
Inflexible. The Second Circuit, in a case of first impression in the circuit, held that the requirement that an application to permit an appeal an order certifying a class in a class action be made within 10 days is either jurisdictional or is a claim-processing rule that is inflexible. In that the plaintiff objected to the late filing of the application, the Court denied it.

The decision in Coco v. Incorporated Village of Belle Terre, New York can be found here.

I've Made It! This blog has finally been listed on the blogroll of How Appealing. When I first started this blog, I asked Howard Bashman to list me on the blogroll. He promised that he would do so, but it never happened. Being unagressive in asking for favors, I never raised the issue towith him again until last week, when I had occasion to e-mail him regarding an outdated link on the How Appealing blogroll. I mentioned that this blog was not listed, and he immediately rectified the matter. Let's see if that leads to greater numbers of hits.

Friday, May 05, 2006

Missing info. Those in the know realize that my post of yesterday on the Muntaqim case was incomplete. I was accurate as far as it went, but there was a companion case, Hayden v. Pataki that was arued together with Muntaqim was also decided. Unfortunately, the link on the Second Circuit website only gives me an error message. The link from Findlaw does the same thing, so I haven't read this decision. The New York Law Journal says that the en banc court decided 8-5 that Congress did not intend to allow challenges to the felon disenfranchisement law under the Voting Rights Act.

The ABA Law Students Divison just recently held a moot court competition on this very issue, and I, as a judge in the preliminary rounds, heard extremely good arguments on both sides of this issue. I would not be surprised if Hayden makes its way to the Supreme Court.

Once I do get a copy of the decision, I will post a more complete report.

EDIT: The decisions in Hayden v. Pataki can be found here. It's a lengthy document, but when I get to read it in its entirety, I expect to have some things to say (or maybe not).

Thursday, May 04, 2006

Muntaqim en banc. In an unusual procedural posture, the Second Circuit agreed to hear Muntaqim v. Coombe en banc after the Supreme Court had denied certiorari. The case involved whether the New York felon disenfranchisement law violated the Voting Rights Act. The Second Circuit held that because Muntaqim was not a New York citizen, he did not have standing to raise the claim. The Court held that it had no jurisdiction and vacated all prior rulings. The decision in the case can be found here.

Tuesday, May 02, 2006

Rascist Cops. I'm sure you all remember that famous Labor Day parade in New York, where a bunch of apparently brainless cops and firemen participated on a float that featured mocking stereotypes of black Americans. They were fired, and they sued, claiming that their First Amendment rights were violated. The government moved to dismiss, but the District Court denied their motion. The Second Circuit reversed, noting that while the government was not as free as a private individual or company to fire employees, it retained hte freedome to dismiss employees who do not meet the reasonable requirements of their job. The decision in Locurto v. Guiliani can be found here.

Oh, by the way, these events all happened in 1998. Talk about the slow pace of litigation!

Friday, April 28, 2006

Taxing Embassies. The City of New York tried to tax parts of embassies that were used in a manner that would subject them to property tax. Embassy buildings are exempt from taxes only if they are used for embassy offices and the quarters of a diplomat. The builidngs at issue also had living space for embassy employees who were not diplomats. Under the law, that portion of the premises would be taxable. India and Mongolia did not pay their tax bills, and the City obtained tax liens. It commenced an action to establish the validity of the liens on the embassy (acutally missions to the UN) property.

India and Mongolia claimed to be exempt by sovereign immunity, but the district court disagreed, holding that an exception to the Foreign Sovereign Immunity Act. The Act exempts any case in which rights in immovable property situated in the United States are in issue. The Second Circuit affirmed and remanded the case for further proceedings. The Court emphasized that it was not deciding the merits of the dispute. It merely decided that the case was not barred by sovereign immunity.

The decision in City of New York v. Permanent Mission of India to the United Nations can be found here.

Wednesday, April 26, 2006

Wolff & Byrd, Consellors of the Macabre. Well, they're fictional, but they do practice in the Second Circuit (Brooklyn, to be precise). I would be remiss if I did not alert my regular readers to the new Supermatural Law website with web comic strips of Wolff & Byrd, the specialists in supernatural law. Wolff & Byrd used to appear regularly in the National Law Journal, but unfortunately those golden days are over, but you can get your W&B fix on line -- for free. It's really nice of my good friend, Batton Lash, to provide us with this free entertainment. But if you really like them, you can help Bat by buying the Wolff & Byrd books. But, at any rate, you owe it to yourself to at least check the site out.

Tuesday, April 25, 2006

Certified Question. Doe v. Newbury Bible Church involves an allegation of sexual molestation of a boy by the former pastor of the church. The case was sent to Vermont for certification of a question relating to vicarious liability. It is persently unclear whether a church can be held vicariously liable for the acts of its pastor. The decision in this case can be found at the Second Circuit website. It was decided on April 21, 2006.
Pleading Standard. In Liebowitz v. Cornell University, the Second Circuit vacated in part a decision of the Southern District of New York, dismissing the plaintiff's employment discrimination. The case had been dismissed on a motion to dismiss where "all factual allegations in the complaint" are to be taken as true. The District Court, however, did not take all of the factual allegations as true, but instead accepted certain allegations of the University. The Second Circuit held that the complaint, if the allegations were true, did state a cause of action, and vacated the judgment as to those causes of action, while affirming the dismissal of other causes of action, which it found had not been adequately pleaded. The decision can be found at the Second Circuit website. It was decided on April 21, 2006.
Read a Book. The Advisory Group to the New York State and Federal Judicial Council announces the publication of the Second Edition of the "Practice Handbook on Certification of State Law Questions by the United States Court of Appeals for the Second Circuit to the New York State Court of Appeals". It can be obtained from the Second Circuit website.

Monday, April 24, 2006

How Appealing. Howard Bashman's How Appealing blog has changed location. It can now be found at The change has been made to my blogroll.

Tuesday, April 18, 2006

Landlord/Tenant Law and the FDCPA. The Second Circuit decided that the service of a notice of petition and petition in a non-payment proceeding brought by a landlord against his tenant constitues an "initial communication" under the Federal Debt Collection Practices Act. Hence, the warnings and notices required by 13 U.S.C. 1692g should have been sent with the pleadings. The Second Circuit has joined the Seventh Circuit on this issue. The decision in Goldman v. Cohen can be found on the Second Circuit website. It was decided on April 12, 2006.

Wednesday, April 05, 2006

Sympathy. I would like to send my sincerest sympathy to Second Circuit Judge Carbarnes, whose mother diied at age 96 on April 2, 2006.

Friday, March 31, 2006

A Star in Town. Since the Second Circuit is the most important commercial law federal court in the country, it should be no surprise that national appellate stars appear before it. Nevertheless, I have not noticed Carter Phillips's name on a Second Circuit decision as counsel (or anything else) in a while.

Phillips represented Tribune Televison Co. in Ellis v. Tribune Television Co. Tribune owned both television stations and a newspaper in the Hartford, Connecticutt area, in violation of FCC rules. Tribune had received several temporary waivers of the rules and has applied for a permanent waiver, but when the last temporary waiver had expired and the application for a permanent wavier was pending, Neil Ellis, a Hartford resident, brought suit under 47 U.S.C. 401(b).

Tribune moved to dismiss the action on the ground that the FCC had revised its rule prohibiting ownership of both television stations and newspapers in the same geographic area and that, under the new rule, its cross-ownership was legal. It also argued that the factual and legal issues involved in the case were not ripe because the FCC had not acted upon Tribune's application for a permanent waiver. Tribune finally argued that the doctrine of primary jurisction required dismissal in light of the administrative proceedings before the FCC.

Ellis moved for summary judgment.

While the motions were pending, implementation of the FCC's new cross-ownership rule had been stayed by the Third Circuit.

The District Couirt denied Tribune's motion and granted summary judgment in Ellis's favor.

The Second Circuit reversed, holding that the "district court erred in failing to recognize the FCC's primary jurisdction in this matter." The Court vacated the District Court's decision and remanded the case to the District Court with instructions to dismiss.

The decision, which was issued on March 29, 2006, can be found on the Second Circuit's website.

Congratulations, Carter!

Wednesday, March 29, 2006

Fee changes. Prices are going up everywhere, and the Second Circuit is no exception. The new fee schedule can be found at the Second Circuit website.
Supreme Court Practice. The newest issue of The Journal of Appellate Practice and Process has a number articles on Supreme Court Advocacy: Acquiring the Necessary Experience. This is a topic of great interest to me, given my special interest in appellate advocacy and Supreme Court advocacy being at the top of the heap of that discipline. There is a preface by David C. Frederick, the author of Supreme Court and Appellate Advocacy. It is interesting, but it leans too much to the modern belief that Supreme Court advocacy is best done by Supreme Court specialists. While there is a lot to be said for that school of thought, the idea that you should stay away from the Supreme Court unless you've worked for the Solicitor General or some advocacy group that appears before the Court often is hard to swallow. As lawyers, we often deal with issues in areas of law, which we are new to. We might even go to Courts that we have never been to before. Should a lawyer, no matter how experienced, never take on an antitrust case because he or she is not an antitrust expert?

Fortunately, there is a growing literature on Supreme Court practice, Supreme Court oral arguments can be downloaded off the internet, and examples of cert petitions and merits briefs from the Court are readily available. (See here and here, for instance.) So while a practioner might give serious thought before taking on a case before the Supreme Court (assuming he or she is lucky to get one), I would argue that it is something that can be done without being an experienced Supreme Court practitioner.

I shouldn't give you the impression that Mr. Frederick only speaks of this subject; indeed, it is only a subtext, which I pick up because I am sensitive to it. Although I have filed amicus briefs (both at the petition stage and the merits stage), cert petitions and oppositions to certiroari, I have never appeared before the Court . . . yet. And I refuse to be deterred.

There is an article on the Stanford Supreme Court Clinic run by Tom Goldman, an experienced Supreme Court advocate who blogs at SCOTUSblog, Amy Howe, his wife and partner, and Pamela Karlan of Stanford. That clinic is only of use to attorneys who wish to appear before the Court if you are a student at Stanford, in which case it is excellent. If you have a case that might merit Supreme Court review but which your client cannot afford, the clinic might take the case, but you are basically going to be handing it off to the students and the instructors. But since the instructors (Goldman, Howe and Karlan) are top notch, it certainly would good for the client.

Frederick also mentions that the Georgetown Law Center's Supreme Court Institute provides free moot courts if you are arguing before the Supreme Court, provided you are the first attorney on a case to get in touch with it. I expect that that is a very helpful service to an attorney, whether experienced or not.

I have not read the other articles in the issue (although I'm pretty much through the one on the Stanford Supreme Court Clinic), and I may have more to add in another post. We'll see.

Monday, March 27, 2006

Another new blog. All right, it's not really new. It's been up and running since last November. But it's new to me. Sui Generis, a New York law blog, written by Nicole Black of Rochester, New York, is definitely worth viewing. Don't take my word for it. See for yourself.

By the way, in the interest of full disclosure, Nicole has been kind enough to mention this blog in an article entitled "Use of Law Blogs Is On th Rise" in the Daily Record. She's posted a link to the article here.
New blog. The Second Circuit Sentencing Blog has appeared to deal with substantive cases on sentencing law in the Second Circuit. Since I don't usually cover such cases, anyone interested in that area of the law in the Second Circuit might want to check it out.
Reply briefs. I had stated a couple of weeks ago, that I would be blogging about issues of general interest to appellate lawyers. This is the first such post. I have been reading Judge Ruggero J. Aldisert's Winning on Appeal: Better Briefs and Oral Arguments. Judge Aldisert makes a statement that I have also heard from other jurists, but with which I could never agree. He suggests that reply briefs should only be filed in very limited circumstances. From the judge's point of view, I can understand that less paper is better than more paper. But from an attorney's point of view, it makes no sense. The appellee, since he files his brief after the appellant, get's a chance to comment on the points made by the appellant. The appellant, however, if no reply brief is filed, never gets a chance to take issue with the appellee's points (especially if there is no oral argument). In most cases, the appellee will make arguments that are worth rebutting in some way. I surely agree that a reply brief should not be filed if its only purpose is to repeat what is said in the appellant's initial brief. But if no answer can be made to the appellee's brief, then the appellant probably should deserves to lose the appeal.

Having said this, I still highly recommend Judge Aldisert's book.
Unwaiving a waived right of appeal. The Second Circuit, in Campusano v. United States has decided the issue of whether a criminal defendant, who instructs his attorney to file a notice of appeal despite a waiver of his right to appeal in his plea agreement, has suffered per se ineffective assistance of counsel if his attorney fails to do so.

Campsano's plea agreement contained a provision that he would not appeal or otherwise challenge his sentence provided the sentence fell within a stipulated range.of 108-135 months. He was sentenced to 108 months. He twice instructed his attorney to file a notice of appeal, but his attorney did not do so. He then moved, pursuant to 28 U.S.C. 2255, to vacate, set aside or correct his sentence on the basis of ineffective assistance of counsel. Campano argued that the failure to file a requested notice of appeal constitutes ineffective assistance and that no independent showing of prejudice was required.

The District Court denied Camuosano's motion, holding that the rule that the failure to file a notice of appeal constitutes per se ineffective assistance unless the defendant asks his attonrey to file an appeal that raises one of the permitted grounds for appeal despite the plea waiver. Campusano appealed.

The Second Cirucit reversed. It noted that while plea waivers were enforceable in most cases, "important constitutionsal rights require some exceptions to the presumptive enforceability of a waiver." These rights are endangered when an attorney fails to file a notice of appeal. The Court remanded the case to the district court for a determination of whether Campusano in fact instructed his attorney to file an appeal. If he did give such an instruction, he is to be allowed a direct appeal.

The decision in this case can be found at the Second Circuit website. The case was decided on March 23, 2006.

Tuesday, March 21, 2006

Quattrone wins! Frank Quattrone's conviction was vacated because of erroneous jury instructions. The Court also decided that Judge Richard Owen should not retry the case (if it is retured), but should be assigned to a new judge. The decision in United States v. Quattrone can be found at the Second Circuit website. The decision was issued on March 20, 2006.

Friday, March 17, 2006

Upcoming. Judge Batts of the Southern District of New York dismissed an action brought by the City of New York against internet cigarette sellers. Judge Batts held that the City had failed to plead a proper case under RICO. The City has said that it plans on appealing to the Second Circuit. An article on this case appears in today's New York Law Journal. It may not be available to you on-line if you are not a subscriber. (Sorry.)

Thursday, March 16, 2006

Privilege. Francia Collazos was in prison and kept a journal. Part of the journal involved conversation she had with her attorney. Part involved incidents with defendant Nicholas DeFonte. DeFonte found out about the existence of the journal and subpoenaed it. Collazos moved for a protective order on the ground that the journal was privileged. The district court denied the motion.

The Second Circuit held that those portions of the journal that described conversations with her attorney were privileged. The other sections were privileged if they set out material she intended to discuss with her counsel. The Court remanded the case for a hearing as to whether the journal fell within the scope of the privilege as it set out in its decision. The decision in United States v. DeFonte can be found at the Second Circuit website. It was decided on March 15, 2006.

Thursday, March 09, 2006

Certified questions to Connecticut. Northfield Ins. Co. v. Derma Clinic Inc. involved allegations of sexual assaults by a masseuse. The plaintiffs in those actions also sued the massage company and its onwer. The company and owner were sued for failing to advise the plaintiffs in these actions that there had been complaints against the employee, failure to investigate the allegations, continuting to employ the employee, failing to report the employee to the proper authorities and other claims stemming from these allegations.

The company and its owner relied on two insurance companies to cover their defense against the claims. The first policy was a professional liability policy and covered the company and its executive officers and directors (but only with respect to their duties as the company's officers and directors. The policy describes the business of the company as "massage therapist." This policy exluded any damages arising out of any dishonest, fraudulent, criminal or malicious act or omission of any insured or "employees."

The second policy on which the company and its owner relied was a commerical general liability policy. The policy excludes coverage for bodily injury arising out of the rendering or failure to render any professional services, including bu t not limited to . . . massage.

The Insurance Company disclaimed coverage and commenced a declaratory judgment, seeking a determination that their insurance policies did not obligate it to defend or indemnify the company.

The Insurance Company moved for summary judgment, and the District Court granted the motion, holding that neither policy covered the claims.

he Second Circuit certified four questions to be answered by the Supreme Court of Connecticut. The questions are:

1. In a policy with multiple coverage parts, does a criminal acts exclusion in the Commerical Crime Coverage Form apply to disputes arising under the Commercial General Liability Form?

2. Can an employee's pleas of nolo contendere and the resulting conviction be used to trigger an insurance policy's criminal acts exclusion?

3. When applied to the business of massage therapy, does the term "professional services" include acts ancillary to the business of a massage therapist, e.g., the investigating, training, monitoring, supervising of masseurs?

4. Under the language of the commercial coverage policy, do the negligence claims against the company and its owner arise out of the rendering of professional services when the underlying acts involve physical and sexual assualts during the performance of a message.

The decision was rendered on March 6, 2006 and can be found on the Second Circuit website.

Monday, March 06, 2006

Rule 32.1. Howard Bashman, of How Appealing fame, has written an article on an attempt by opponents of proposed Rule 32.1 of the Federal Rules of Appellate Procedure, which would allow for the citation of "unpublished" opinions, to limit the effect of the rule by making the rule applicable only to such decisions issued after January 1, 2007. His article (on can be found here.

Friday, March 03, 2006

To the Majors. Tom Goldstein, who has invented the small firm Supreme Court practice (and is one of the few able to maintain such a firm), is leaving his firm of Goldstein & Howe and heading for Akin, Gump, Strauss, Hauer & Feld. Goldstein & Howe will become Howe & Russell. for more info, check this post. As one in awe of Tom, I wish him the best of luck.

Wednesday, March 01, 2006

Not Ex Post Facto. The Second Circuit has held that it does not violate the ex post facto clause to apply the holding of United States v. Booker to actions that occurred before Booker was decided. This is one of those cases where the defendant was sentenced to a term longer than he would have been under the Sentencing Guidelines. The decision in United States v. Fairclough can be found at the Second Circuit website. It was decided on February 17, 2006.

Tuesday, February 28, 2006

Public Trial. The Second Circuit granted a writ of habeas corpus to a criminal defendant whose relatives were order excluded during the testimony of an undercover officer unless they consented to sitting behind a screen. The Court, in Rodriguez v. Miller, held that such a procedure violated Rodriguez's Sixth Amendment right to a public trial. The decision can be found on the Second Circuit website. The case was decided on February 17, 2006.

Monday, February 27, 2006

Certified questions. In Colavito v. New York Organ Donor Network, Inc., the Second Circuit certified certain questions to the New York State Court of Appeals. The questions certified are as follows:

Do the applicable provisions of the New York Public Health Law vest the intended reipient of a directed organ donation with reights that can be vindicated in a provate party's lawsuit sounding in the common law tort of conversion or through a private right of action derived from the Public Health Law?

Does the Public Health Law immunize either negligent or grossly negligent conduct?

If a donee can bring a provate action to enforce the rights referred to in the first question, may the plaintfiff recover nominal or punitive damages without demonstrating pecuniary loss or actual injury?

The decision can be found at the Second Circuit website. The case was decided on February 23, 2006.

Friday, February 24, 2006

Another new blog. My law firm, Cox Padmore Skolnik & Shakarchy LLP is starting a new blog, which will deal with commercial law. The template of the blog already exists, but the content will be appearing shortly, probably some time nex week. Please check it out.

Thursday, February 23, 2006

New blog. Well, it's not really new. I've known about it for some time, but for some unknown reason I never added it to my blogroll. Second Circuit Blog is run by members of the Federal Public Defenders office in the Second Circuit. It appears to deal exclusively with Second Circuit criminal cases, though, if I am wrong on that, I hope someone will correct me so that I can correct the error. It is now on my blogroll and I encourage my readers (such as they are) to check it out.

Wednesday, February 22, 2006

Spanish Isn't Hispanic. New York's definition of "Hispanic" for purposes of certifying minority-owned businesses for possible affirmative action excludes people of Spanish or Portugese descent who do not also come from Latin America. The Second Circuit, in Jana-Rock Construction v. New York State Department of Economic Development held that under rational basis review the distinction passes constitutional muster. The decision, which was rendered on February 21, 2006, can be found at the Second Circuit website.
New Policy. This is my policy, not the Court's. While I will continue to provide summaries of Second Circuit cases, I am going to also post on my general views on the law, appellate practice and other legal matters. I hope that you will continue to find this blog to be interesting and informative. If you have comments, complaints or suggestions, feel free to e-mail me.
Fully retained. In the Western District of New York, they have a practice of asking retained attorneys whether they are "fully retained," i.e., retained for the duration of the case, to avoid mid-trial motions for the appointment of counsel once the defendant's money has run out. This policy was challenged in United States v. Parker, which was decided on February 21, 2006. The Second Circuit held that the policy is proper. The decision can be found at the Second Circuit website.

Tuesday, February 21, 2006

Constitutional. The Second Circuit has held that the Religious Freedom Restoration Act of 1993 is Constitutional as applied to federal age discrimination law. The case involved a church policy requiring retirement of ministers at age 70. Paul Hankins, a Methodist minister who challenged the policy. In that RFRA had been found unconstitutional as it applied to state law, I'm looking forward to a close reading of the decision to see the Court's reasoning in upholding it as applied to federal law. Stay tuned for a further post. I've noticed that the "link" to Hankins v. Lyght is not working, but you can find a link to it at Findlaw. (If you are reading this post long after February 20, 2006, the link may not be there (it's the recent cases link), but search around and you should be able to find it. The case was decided on February 16, 2006.)

Wednesday, February 15, 2006

Family planning. It's well known that China has a family planning policy which allows couples to have only one child. Violation of that policy was punished by sterilization. The Chengs claimed that they could not be removed from the United States based on Article III of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Convention prohibits the expulsion of an alien if there are substantial grounds to believe that he or she would be in danger of being subjected to torture. The Chengs claims that the Chinese policy constituted torture. The Immigration Judge rejected their claims for relief from removal and the Board of Immigration Appeals affirmed. The Second Circuit, in Ni v. Board of Immigration Appeals, held that the immigration judge's failure to consider the Chengs' claims constituted reversible error, granted the Chengs' petition and remanded the case for further proceedings. The decision can be found at the Second Circuit website. The case was decided on February 13, 2006.

Monday, February 13, 2006

Changes to Blog Roll. I've noticed that some of the blogs on my blog roll are no longer active. Second Circuit News is long gone. There hasn't been a post on On Appeal in many a moon. The Induce Act Blog has changed it's name to Legislating IP. And the Blawg Channel has fallen apart, and it's mission has been taken over by Between Lawyers. These changes have been made to the blog roll. If you know of any suitable blogs that should be added, don't be shy; let me know.

Tuesday, February 07, 2006

Help! I used to be able to get direct links to cases through Findlaw. Now when I find a case, I get an adobe document without an URL. The same thing happens at the Second Circuit website. If anyone knows a way to get a direct link, I'd appreciate it. E-mail me at the link on the right.