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Sunday, June 29, 2008

Can there by corporate scienter without scienter of a corporate agent? The Second Circuit says yes, at least at the pleading stage. The Court, in Teansters Local 445 Freight Division Pension Fund v. Dynex Capital Inc. found that the requisite strong inference of scienter of the corporate defendant had not been made, and vacated the District Court's order denying the motion to dismiss and remanding the case to the District Court.

The decision in that case can be found here.

Wednesday, June 25, 2008

We have discretion? Evidently not all district judges are aware that they have discretion to depart from the sentencing guidelines range. Because of this, a crack coclaine defendant will get a chance for a lower sentence. It was unclear whether his judge was one of those clueless judges.

The deciison in United States v. Jones can be found here.

Monday, June 23, 2008

Fraudulent conveyance. The Second Circuit has held that a federal securities receiver may not employ New York Debtor and Creditor Law section 276 to set aside a fraudulent conveyance where he represents only the transferor.

In addition, the Court held that a third party who claims a right to certain property held by the receiver is entitled to a jury trial under the Seventh Amendment.

The decision in Eberhard v. Marcu can be found here.

Thursday, June 12, 2008

Recusing for Mukasey. The Justice Department does not have to recuse itself from representing the Untied States in an appeal from former-District Judge Michael Mukasey. The Court noted that if Mukasey is not participating in the appeal that is sufficient.

The decision in United States v. Hasarafally can be found here.

Those creative lawyers!

Monday, June 02, 2008

Chutzpah. In United States v. Habbas, we have two gentlemen who conspire to frame a man for a crime that could put him behind bars for life. They were caught and entered into plea agreements. One of these "gentlemen" argued that the government had breached the plea agreement by arguimg for a higher sentence than the non-binding estimate it made in the plea agreement. The agreement specifically stated that it was non-binding and stated that the government might seek a higher sentence (which it did). The Second Circuit affirmed the sentence, noting, among other things. that the defendant had suffered no prejudice from the dovernment's action, stating that "[t]he [district] court understandably found that the heinous cynicism and cruelty of defendant's crime called for a sentence of nothing less than eight years, whihc was far in excess of the range resulting from the four-level addition." The Court would have done what it did regardless of the government's position. The crime was seen as so despicable that it warranted the severe sentence.

The decision in this case can be found here.

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