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.

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.

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 weww.ca2.uscourts.gov:8080, but that appears not to work anymore. I will try to find out what the problem. If anyone has any ideas, let me know.

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.

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.

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.