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Monday, January 29, 2007

Triggered by notice. The District Court had dismissed a bankruptcy appeal, holding that the fifteen-day time limit for filing the brief began to run upon the docketing of the appeal. The Second Circuit held that the time limit began to run when the appeal is docketed and notice that the appeal has been docketed is sent to the parties.

The decision in Glatzer v. Enron Corp. (In re Enron Corp.) can be found here.

Thursday, January 25, 2007

Dead Blog. The blog of my fellow Cardozo alum, Chris Rush Cohen, appears to be dead. He has not posted since last September. He's off my blogroll. If things change, I will let you know.

Wednesday, January 24, 2007

Reasonable? In United States v. Trupin, the Second Circuit considers the bounds of reasonableness after United States v. Booker. In Trupin, a tax evasion case, the District Court (Judge McKenna) imposed a seven-month sentence, an 80% reduction from the botton of the applicable Sentencing Guidelines range. Trupin had engaged in a multi-year, multi-million dollar tax evasion scheme. The issue before the Second Circuit was whether this was reasonable.

The Court found that the sentence was not reasonable. It held that the District Court had failed to properly weigh all of the sentencing factors enumerated in 18 U.S.C. 3553(a) and that the record id not adequately support those factors on which the district court did rely. The case was remanded to the District Court for resentencing.

The decision can be found here.

Who is Nicholas Defonte? On March 16, 2006, I did this post on United States v. Defonte. Like most bloggers, I check the sitemeter on my blog to see how the traffic comes to my blog. Over the past year, a number of people have come to Second Opinions by searching for Nicholas Defonte. Lately, it has been a deluge of such searches? Does anyone know why? If so, please e-mail me.

Monday, January 22, 2007

Military Takeover of New York. Very interesting case from the Second Circuit -- Zieper v. Metzinger. The plaintiff had put a website up containing a short film of a military takeover that was to take place on New Year's Eve 1999. Of course, the film was pictional, but it did not say so on the website. Government officials became aware of the website and were concerned that it could incite a riot.

Government agents (FBI and the U.S. Attorney's Office) attempted to get Zieper to take down the website, but he refused to do so. The FBI and the assistant U.S. attorney spoke with the individual who had put the website up for Mr. Zieper and either persuaded or coerced (depending on whose side you are on) her to remove the site. Zieper sued the Attorney General (Reno), the U.S. Attorney (White), the director of the FBI (Freeh), the FBI agent and the assistant U.S. attorney. That latter two were also sued in their individual capacities.

The defendants moved for summary judgment after discovery. The District Court granted the motion, finding that no reasonable jury could find that the FBI agent's contact with Zieper ammounted to threats or coercion in violation of the First Amendment, but that there was a triable issue of fact on the issue of coercion as to the conversation with Zieper's webmaster. Nevertheless, the Court held that the claims were barred by the doctrine of qualitifede immunity because reasonable officers could have disagreed about the legality of the defendants' officers.

Zieper appealed, and the Second Circuit affirmed. While disagreeing that a reasonable jury could not have found that the FBI agent's conversations with Zieper and his attorneys gave rise to a First Amendment violation, it held that the claims were barred by the doctrine of qualified immunity.

At the time of the defendants' actions, it was well-established that they could exhort private entities to remove speech so long as they did not engage in any threat, coercion or intimidation when doing so. The Second Circuit acknowledged that the defendants walked a difficut line in seeking to exort Zieper to remove the video. The Court held, however, that the Court' s prior precedents did not make clear on what side of the line their actions fell. Accordingly, they were entitled to qualified immunity. The Court note that in finding that their actions could give rise to a First Amendment violation, future government agents would be on notice that such actions might expose them to liability and that they would no longer be entitled to qualified immunity for such actions.

The decision can be found here.

Oh, and thanks to Decision of the Day for alerting me to this case. Rob Loblaw, the pseudonomous author of that blog, is my new hero (right up there with Howard Bashman of How Appealing and David Lat of Above the Law.

Thursday, January 18, 2007

Another certified question. The Second Circuit has certified another question to the New York State Court of Appeals. The question is:

Does CPLR 205(a) allow a corporation to refile an action within six months when a previously, timely-filed action has mistakenly been commenced in the name of a different, related corporate entity and has been dismissed for naming the wrong plaintiff.

The decision in Reliance Insurance Co. v. Polyvision Corp. can be found here.

New blog. Another blog I'm loving is Decision of the Day. Check it out.

Oops. A major New York law firm (to remain nameless) filed a notice of cross-appeal one day beyond the applicable time limit set by Rule 4(a)(3) of the Federal Rules of Appellate Procedure. The firm also appealed (timely) from an order denying its mothon to extend the time within which to file a notice of cross-appeal on the ground of excusable neglect.

The Second Circuit held that whether or not the time limit for a cross-appeal is jurisdictional or not, the Court was required to enforce the time limit when it is properly invoked by an adverse party. It also held that the District Court had properly acted within its discretion in denying the motion for an extension of time.

The decision in The Asbestos Personal Injury Plaintiffs v. Travelers Indemnity Co. (In re Johns Manville Corp.) can be found here. Thanks to Decision of the Day for alerting me to the case (Rob Loblaw is fast!)

Wednesday, January 17, 2007

Certified question answered. In Morris v. Schroder Capital Management International, the plaintiff has sued his former employemtn for breach of contract for failure to pay him certain deferred compensation benefits. The District Court dismissed teh complaint for failure to state a claim, holding the Morris had forfeited his rights to certain benefits under various deferred compensation plan, including a covenant not to compete. It further held that because Morris had failed to state a claim of constructive discharge, the covenant not to compete was valid pursuant to New York's employee choice doctrine, which permits enforcement of restrictive covenants whithout regard to the covenant's reasonableness. Morris appealed.

The Second Circuit certified to the New York State Court of Appeals the question of whether the constructive discharge is the approrpriate legal standard to apply when determining whether an employee voluntarily or involuntarily left his employment for purposes of the employee choice doctrine. The New York State Court of Appeals answered the question in the affirmative.

According, the Second Circuit affirmed the decision of the District Court. The decision can be found here.

Death threats. Criminal defendant asserted that his defense counsel had changed his defense strategy after receiving a death threat from John Gotti. Not good enough for habeas corpus, said the District Court. And the Second Circuit agrees.

See the decision in LoCascio v. United States here.

Friday, January 12, 2007

New blog. It's not really new, but I am now placing Above the Law on my blogroll. It is run by David Lat, author of Underneath Their Robes, the hilarious blog on the federal judiciary, which seems to be dead. I am taking UTR off the blogroll, but I'm sure you will enjoy ATL just as much.

Thursday, January 11, 2007

Renominated. President Bush has renominated Columbia Law School vice dean Debra Ann Livingston for a seat on the Second Circuit.

Monday, January 08, 2007

No Jurisdiction over Late Notice. If the United States government intends to execute a criminal defendant, it must provide notice of that intent " a reasonable time before the trial or before acceptance by the court if a a plea of guilty." 18 U.S.C. 3593(a). In United States v. Robinson, the issue arose as to whether a determination of whether section 3593(a) has been violated is immediately appealable.

The Second Circuit held that the final judgment rule prevented it from hearing an appeal of such an order. This was so even though the result could potentially that the defendants could go through a lengthy death penalty trial and then have the death penalty demand stricken.

The decision can be found here.

Mazel Tov. Congratulations to Senior Circuit Judge Jon Newman on his marriage to author Ann Leventhal.

Friday, January 05, 2007

Revised Lawyer Ad Rules. The proposed lawyer ad rules, which arguably would have had a severe impact on New York bloggers, have been modified and they now appear to have no such effect. As a New York attorney, blogging in New York, I was a bit worried about this.

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