Executives. In answer to a certified question, the New York State Court of Appeals has held that an executive is an employee under the New York Labor Law, article 5, except where expressly excluded. The Court of Appeals further held that section 193 of the Labor Law did not prevent the parties from entering into a contract where a commission was not "earned" until after certain deductions were made from her percentage of gross billings.

The answers provided by the Court of Appeals worked to the detriment of an executive who, upon leaving her company, sued it for making certain purportedly unlawful dcductions.

The decision in Pachter v. Bernard Hodes Group can be found here.

KPMG Employees Off the Hook. The Second Circuit has upheld the dismissal of the indictments of eleven partners and employees of accounting firm KPMG, LLP because the government had caused KPMG to put conditions on the advancement of legal fees to the defendants. This violated the defendants’ Sixth Amendment right to counsel.

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

Tolling the staute. The Second Circuit held that a application, pursuant to 18 U.S.C. 3292, to suspend the running of a statute of limitations pending a request for foreign evidence must be made before the statute of limitations expires.

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

Certified question. In an action brought under the Individuals with Disabilities Education Act, a father brought an action seeking relief on behalf of him and his disabled son. Because he was the non-custodial parent, the distirict court held that he did not have standing to bring the action. The Second Circuit held that standing turned on an unsettled issue of New York state law and certified the question for decision by the New York State Court of Appeals. The certified question is:

Whether, under New York law, the biological and non-custodial parent of a child retains the right to participate in decision pertaining to the education of the child where (1) the custodial parent is granted exclusive custody of the child and (2) the divorce decree and custody order are silent as to the right to control such decisions?

The Second Circuit noted that two departments of the Appellate Division, New York's intermediate appellate court, have held that non-custodial parent does not retain such a right, but it "was reluctant to take that final step [considering the Appellate Division decisions as determinative] in the absence of a Court of Appeals pronouncement because the ruling has broad implications affecting the custodial relationships in New York -- a matter of paramount concern."

The decision in Fuentes v. New York City Department of Education can be found here.

Absentee Ballot. The Second Circuit reversed the District Court's decision dismissing a complaint claiming that the New York State Board of Elections violated the plaintiffs' Fifth Amendment rights by failing to provide for absentee ballots in elections for polical party county committees, while providing them for all other kinds of elections. The Court remanded the case to the District Court with instructions to enter judment in favor of the plaintiffs.

The decision in Price v. New York State Board of Elections can be found here.

Steinbeck. The Second Circuit has reversed a ruling that awarded John Steinbeck's son and granddaughter publishing rights to 10 of the author's early works, including 'The Grapes of Wrath.

The decision in Penguin Group (USA) Inc. v. Steinbeck can be found here.

DISCLOSURE: My firm represents Nancy Steinbeck in this action, although she was not a party to the appeal.

9/11. The Second Circuit has ruled that Saudi Arabia and four of its princes cannot be held liable in the Sept. 11 attacks. The Court held that the Saudi defendants are protected by sovereign immunity. It also agreed with a lower court that a Saudi banker and a charitable organization cannot be held liable.

The decision in In re Terrorist Attacks of September 11, 2001 can be found here.

Modest success. The Second Circuit has held that the district court was proper in reducing a request for attorneys' fees in a case brought under the Fair Labor Standanrds Act from $340,375 to $49,889 in light of the limited successs acheived by the attorney.

The decision in Barfield v. New York City Health and Hospitals Corp. can be found here.

Another certified question. The Second Circuit has asked the Court of Appeals for its view on another question. The certified question is:

Does New York General Obligations Law 15-301(1) abrogate, in the case of a contract where the second of two irreconcilable provisions requres that any modifications to the agreement be made in writing, the common law rule where two contractual provisions are irreconcilable, the one appearing first in the contract is to be given effect rather than the one appearing subsequent?

The decision in Israel v. Chabra can be found here.

Waiving Doctor-Patient Privilege. The Second Circuit granted a writ of mandamus and reversed an order that required a prisoner's psychiatric records to be disclosed in a case where the prisoner brought a 1983 action alleging that correctional officers used excessive force on him. The prisoner was not seeking damages for mental or unusual emotional injury.

The decision in In re Sims can be found here.

Evidence after summations. The Second Circuit, in United States v. Crawford, held that the district court had abused its discretion in reopening the record after summations to allow the posecution to put in additional evidence.

The decision in this case can be found here.

Cash-based defined benefit plans. The Second Circuits, joining the other circuits that have considered the issue, has held that cash-based defined benefit plans do not inherently result in age-based reduction in the rate of benefit accrual and do not violate ERISA. The Court noted that there had been some confusion among the district courts of the Second Circuit as to law on this issue.

The decision in Hirt v. The Equitable Retirement Plan for Employees, Managers and Agents can be found here.

Attempted Deceit -- Certified Questions. The Second Circuit, in Amalfitano v. Rosenberg has certified the following questions to the New York State Court of Appeals:

Can a successful lawsuit for treble damages brought under N.Y. Judiciary Law 487 be based on an attempted but unsuccessful deceit upon a court by the defendant?

In the course of such a lawsuit, may the costs of defending litigation instituted by a complaint containing a material misrepresentation of fact be treated as the proximate result of the misrepresentation if the court upon which the deceit was attempted at no time acted on the belief that the misrepresentation was true?

The decision can be found here.

Prerequisite. The Second Circuit has held that it is not a prerequisite to liability under the Americans with Disabilities Act to request an accommodation when the employer is aware of its employee's disability or the disability is apparent. The decision in Brady v. Walmart Stores, Inc. can be found here.

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.

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.

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.

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!

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.

Student's First Amendment rights. The Second Circuit upheld a denial of an injunction to void the election of a Seniro Class Secretary and ordering the school to have a new election in which the plaintiff's daughter would be allowed to participate. The daughter had been disqualifed from the election because she posted a vulfar and misleading message about the supposed cancellation of an upcoming school event on an independently-operated, publicly accessible blog. The District Court held that the plaintiff was unlikely to prevail on the merits. The Second Circuit affirmed, stating that the student's blog post created a foreseeable risk of substantial disruption at the the school. The Court held that the, under the circumstances of the case, warratned the disciplinary action imposed and the fact that the student's statement on the blog did not take place on school grounds was irrelevant because the statement was likely to create a disruption. All this about a school concert.

Much ado about nothing.

The decision in Doninger v. Niehoff can be found here.