Lodestar. In determining attorneys' fee awards under the Voting Rights Act, while "the court should generally use the prevailing hourly rate in the district where it sits to calculate what has been called the 'lodestone' -- what we think is more aptly termed the 'presumptively reasonable fee' -- the district court may adjust this base hourly rate to account for a plaintiff's reasonable decision to retain out-of-district counsel, just as it may adjust the base hourly rate to account for other case-specific variables." The district court, in deciding a lodestar rate, should decide what a reasonable paying client would be willing to pay. In making that finding, the Court should consider the complexity and difficulty of the case, the available expertise and capacity of the client's other counsel (if any), the resources required to prosecute the case effectively (taking account of the resources being marshaled on the other side but not endorsing scorched earth tactics), the timeing demands of the case, whether the attorney had an interest (independent of that of his client) in acheiving the ends of the litigation or initiated the representative himself, whether the attorney was initially acting pro bono (such that a client might be aware that the attonrey expected low or non-existent remuneration), and other returns (such as reputation, etc.) the attorney expected from the representation.

The decision in Arbor Hill Concerned Citizens Neighborhood Association v. County of Albany can be found here.

Fifty Dollars Based on certain contractual limitations of liability, the district court held that the most that the plaintiff could recover against the two defendants was $50 against each. The Court suggested that each defendant tender $50 to the plaintiff, without conceding liability. When they did, the Court entered judgment in favor of the plaintiff in the amount of $5 from each defendant, and dismissed the action as moot and for lack of subject matter jurisdiction.

While the Second Circuit, on appeal, held that the District Court had been correct in determining the extent of liability, it held that the District Court was wrong in dismissing the action as moot and for lack of subject matter jurisdiction. Had the defendants paid the plaintiff the entire amount of its claim, then the case would be moot, but in that it only paid the amount that the District Court held was owed, the case was not moot. At any rate, since the judgment entered was final, the plaintiff could appeal.

The decision in ABN Amro Verzekeringen BV v. Geologistics Americas, Inc. can be found here.

Direct Appeal. In general, when a party wants to appeal from a decision of a bankruptcy court, the appeal is made to the district court in the first instance. One can, however, appeal directly to the Court of Appeals if you meet the criteria of 28 U.S.C. 158(d)(2)(A). That provision allows a direct appeal if the bankruptcy court certifies that either "(i) the judgment, order, or decree involves a question of law as to which there is no controlling decision . . . or involves a matter of public importance; (ii) the judgment, order, or decree involves a question of law requiring resolution of conflicting decisions; or (ii) an immediate appeal from the judgment, order, or decree may materially advance the progress of the case." In such cases, the Court of Appeals has discretion to hear the appeal.

In Webber v. United States Trustee, a creditor sought to take a direct appeal to the Second Circuit to address the issue of whether the increase in the homestead exemption should be applied retroactively. The Second Circuit declined to hear the appeal, stating that there was not a conflict in the decisions and there was no reason to believe that resolution of the issue would result in a more rapid resolution of the case.

The decision can be found here.

Not shocked. The Second Circuit has held that workers who performed search, rescue and cleanup services at the World Trade Center after the terrorist attacks cannot sue government officials who issued reassuring and knowingly false statements about the air quality in lower Manhattan. In affirming the dismissal of the action, the Second Circuit held that the defendants actions did not shock its conscience even if the defendants acted with deliberate indiference. "When agency officials decide how to reconcile competing governmental obligations in the face of a disaster, only an intent to cause harm arbitrarily can shock the conscience in a way that justifies constitutional liability." Too bad for the poor workers, I guess. (For the record, the panel was Chief Judge Jacobs and Judges Sack and Raggi.

The decision in Lombardi v. Whitman can be found here.

Inherent authority. The Second Circuit has held that it has the inherent authority to admit to bail movants, who are seeking bail pending the court's consideration of their petition for review of a BIA order.

The decision in Elkimya v. Department of Homeland Security can be found here. Unfortunately for Elkimya, although the court held it had the inherent authority, it chose not to exercise its authority in his favor.

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

Is an open space restriction imposed by a subdivision plat under New York Town Law 276 enforceable against a subsequent purchaser, and under what circumstances?

The Second Circuit has stated that it has many times greatly benefitted from the guidance of the New York State Court of Appeals. Sure it's dictum, but it's nice to know.

The decision in O'Mara v. Town of Wappinger can be found here.

Trolls. There's a big fight between a Danish company and an American company over who has the rights to manufacture those cute/ugly little troll dolls. So far the Danes are winning.

A Dane by the name of Thomas Dam created the dolls and obtained a copyright in Denmark. He also got a copyright in America, which was invalidated because certain dolls of this type had been sold in America prior to Dam's copyright, and the design fell into the public domain.

After Dam died, his heirs granted the exclusive right to make the dools to Trolls Co., a Danish company.

Congress enacted 104A of the Copyright Act, which put America into compliance with the Berne Convention, having the effect, among other things, of restoring Dam's copyright. Trolls Co. applied for and was granted a registration certificate in 2000.

Uneeda Doll Co. had been manufacturing trolls under a license from Dam's company since the 1960s. Uneeda had told Trolls Co. that it had no intention of manufacturing trolls. However, Trolls Co. found out that Uneeda was about to do so just at the time that Trolls Co. was about to relaunch the dolls. Trolls Co. told Uneeda that its dolls were infringing Trolls Co.'s copyright.

Trolls Co. sued and obtained an injunction. The Second Circuit has affirmed. The decision in Trolls Co. v. Uneeda Doll Co. can be found here.

Great news. I just got back to the office after Passover and find the terrific news that Catherine O'Hagan Wolfe, formerly clerk of court for the New York Appellate Division, First Department, has been named the new clerk of court for the Second Circuit. As anyone who practices appellate law in New York knows, Ms. Wolfe is a great choice. My only question is what is going to happen to the First Department?

First issue on the plate -- on-line filing. It's coming.

Covered Security. The Securities Litigation Uniform Standards Act precludes the maintenance -- in state or federal court -- of class actions alleging state law violations but premised on deception "in connection with the purchase or sale of a covered security." A covered security is a security listed on one of the national securities exchanges or issued by investment companies registered by the SEC. The question that came before the Second Circuit is whether a document that was not a covered security became a covered security because it was attached to a document that was a covered security. The district court held that it became a covered security. On appeal, the Second Circuit held that it did not and vacated the District Court's order with orders to remand the case to the New York County Supreme Court.

The decision in Ring v. AXA Investment, Inc. can be found here.

DNA and the Fourth. The Second Circuit has held that requiring felons convicted of nonviolent crimes and sentenced to probation to supply a sample of their DNA for analysis and storage in a federal database does not violate the Fourth Amendment.

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