Friday, March 31, 2006
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.
Wednesday, March 29, 2006
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
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.
Having said this, I still highly recommend Judge Aldisert's book.
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
Friday, March 17, 2006
Thursday, March 16, 2006
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
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.