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Tuesday, October 30, 2007

Thomas J. Meskill. Senior Circuit Judge Thomas J. Meskill has died at the age of 79. Before becoming a Circuit Judge, Judge Meskill was a congressman and the governor of Connecticut.

Monday, October 15, 2007

Certified question. The Second Circuit has certified some more questions to the New York State Court of Appeals. The questions are:

Whether an '"Executive" is an "employee" under Labor Law, Article 6, section 193 and entitled to the protections of that statute?

In the absence of a governing written agreement, when are commissions "earned" and therefore considered "wages" under sections 191 and 193 thereby rendering most subsequent deductions unlawful?

The decision in Pacter v. Bernard Hodes Group, Inc. can be found here.

Oops. The Second Circuit held that a student seeking relief under Title III of the Americans with Disabilities Act or under Title V based on a violation of Title III does not have to exhaust administrative remedies. The District Court got it wrong.

The decision in Mc Inerney v. Renssalear Polytechnic Institute can be found here

Tuesday, October 09, 2007

Retroactive transfer. The Second Circuit has held that a copyright action brought by a holder of a copyright cannot be defeated by a retroactive transfer by a co-owner of the copyright.

The decision in Davis v. Blige can be found here.

World Trade Center. Well, litigation relating to 9/11 goes on. In In re World Trade Center Disaster Site Litigation, the plaintiffs sought to vacate a stay of proceedings pending a decision on an interlocutory appeal relating the purported immunity from suit alleged by the defendants. The motion to vacate the stay was made after argument on the appeal. Without finally deciding the issues on appeal, the Court vacated the stay, holding that it was less likely that the defendants would prevail on appeal and that the public interest favors permitting pretrial proceedings to resume.

The decision can be found here.

Tuesday, October 02, 2007

Exhaustion. The Second Circuit held that a student had to exhaust his administrative remedies before going to Federal Court even though he was scheduled to graduate before his remedies could be exhausted. The plaintiff in Coleman v. Newburgh Enlarged City School District had the award of attorneys' fees revered because the District Court should have dismissed the action for failure to exhaust.

The Court left open the question as to whether the exhaustion requirement is jurisdictional (and non-waiveable) or merely mandatory (but waiveable). In this case, the School District has not waived the defense.

The decision can be found here.

Reasons. The Second Circuit has vacated a sentence in United States v. Hirliman because the judge for the second time had failed to provide his reasons for deviating from the Guidelines. The Second Circuit had previously remanded the case for resentencing, and ordered the judge to provide reasons for deviation, but he did not do so. The case is being reassigned to a new judge for resentencing.

The decision can be found here.

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