Monday, February 26, 2007
Friday, February 23, 2007
The decision in Abu Hasirah v. Department of Homeland Security can be found here.
Wednesday, February 14, 2007
Certain parties filed an action against American Express, advancing the same claims raised in the other case. Amex sought to dismiss the case and compel arbitration, but the district court denied the motion. Amex appealed and the plaintffs sought to dismiss the appeal, asserting that the Second Circuit lacked jurisdiction because the provision of the Federal Arbitration Act which allows interlocutory appeals of denials of motions to compel arbitration only apply when the arbitration is required by a written agreement, not when the requirement is based on the doctrine of equitable estoppel.
The Second Circuit denied the motion, holding that all of the plaintiffs had signed customer agreements with arbitration clauses (although not with Amex) and arbitration had been provided in the other case because the claims being asserted against the parties with whom there was no arbitration agreement were subject to arbitration because the claim against them were inextricably intertwined with the claims advanced against the defendant with whom the plaintiffs did agree to arbitrate. The Court noted that the arbitration clauses that the plaintiffs had signed controlled the scope of the arbitration and that the arbitration, therefore, was based on a written agreement. Accordingly, the Second Circuit held that it did have appellate jurisdiction.
The decision in Roth v. American Express Company can be found here.
Monday, February 12, 2007
The Town moved for summary judgment, and the ferry service cross-moved for summary judgment on all claims except for the police power claim. The District Court granted the Town's motion and denied the ferry service's cross-motion.
The Second Circuit vacated the District Court's judment insofar as it determined that the law did not violate the dormant Commerce Clause and otherwise affirmed the judgment. The case was remanded to the District Court for further proceedings.
The Court found that there was a question of material fact as to whether the law imposes a disparate impact on interstate travelers. It further held that a reasonable factfinder could conclude that the law does not actually produce any of its intended benefits so as to justify the potential burden on interstate commerce. Because the ferry issue did not focus on this issue before the District Court, the Second Circuit did not decide the issue, but remanded the case to the District Court so that it could have the first crack at the issue.
The decision in Town of Southold v. Town of East Hampton can be found here.
Thursday, February 08, 2007
Tuesday, February 06, 2007
Monday, February 05, 2007
Lots of companies now have cash balance plan for their employees' retirements, so this is an issue of great importance. If such plans are found to violate the anti-discrimination provision of ERISA, all such plans would be invalid.
The Seventh Circuit has previously rejected a claim similar to that of the plaintiffs, and their is a split among the district courts, with the majority of the district courts from the Second Circuit taking a view opposite to that of the Seventh Circuit. (One Southern District of New York case, however, is in accord with the Seventh Circuit.)
The Third Circuit agreed with the Seventh Circuit in what I consider to be a well-reasoned opinion. You can read the decision here. In footnote 10 of the opinion, the Courts states: "It seems to us to be inevitable that the Court of Appeals for the Second Circuit ultimately will decide the discrimination issue for that circuit." And indeed, the district court cases decided in the Second Circuit were all decided in 2006. So when the Second Circuit does come down with a decision in one of them, I will let you know.
Friday, February 02, 2007
The Court disagreed. Read the decision of the Wisconsin Court of Appeals, which can be found here. And thanks to the Legal Writing Prof Blog for cluing me in to this case.
The District Court granted the motion for a preliminary injunction to the extent that the City could not enforce the ban against individuals over the age of 18. The City appealed, claiming that the Court erred in finding that the plaintiffs were likely to succeed on the merits and that the plaintiffs would be irreparably harmed. On appeal, the Second Circuit affirmed.
While the Court was skeptical of any equal protection violation, it found that the District Court had not abused its discretion in issuing the injunction on First Amendment grounds.
The decision can be found here.
Thursday, February 01, 2007
On appeal, the Second Circuit reversed, finding the section to be an unlawful prior restraint, which acted to freeze the speech of the residents of the Historical District who wish to use signs to convey messages, at least for the time it takes them to obtain a Certificate of Appropriateness.
The decision in Lusk v. Village of Cold Spring can be found here.