No appellate jurisdiction. The Second Circuit, in Greenwich Financial Services Distressed Mortgage Fund 3 LLC v. Countrywide Financial Corp., held that the Class Action Fairness Act of 2005 bars appellate review of orders remanding securities class actions to state court.

The Second Circuit's decision can be found here.

Pro se Estate. The Second Circuit has held that the administrator of an estate can represent the estate pro se where the estate has no other beneficiaries (other than the administrator) or creditors. The decision in Guest v. Hansen can be found here.

Late again. In Lora v. O'Heaney, the appellants, two defendants in a prisoner lawsuit had moved for summary judgment on qualified immunity grounds. The District Court denied the motion on January 21, 2009. The appellants moved for reconsideration under Rule 59(e) of the Federal Rules of Civil Procedure. (That motion was not made within the ten days period within which such motions must be made.) The Court denied that motion on July 29, 2009. The appellants filed notices of appeal from both the underlying decision and the decision denying reconsideration on August 27, 2009.

The plaintiff moved to dismiss the appeals. On November 19, 2009, a motions panel of the Second Circuit held that the District Court's orders denying qualified immunity are appealable collateral orders because the defendants had conceded the plaintiff's version of the facts for the purposes of the appeal. The motions panel also stated that only the appeal from the order denying reconsideration was timely.

On full appeal, the Second Circuit noted that an untimely Rule 59(e) motion is treated as a motion for relief from a final judgment, order or proceeding, under Rule 60(b). Such a motion does not toll the time within which an appeal from the underlying order must be taken. An appeal from an order denying Rule 60(b) relief does not bring up the merits of the underlying judgment or order. Such an order is not an appealable collateral order. Accordingly, the Court dismissed the appeal.

The decision in this case can be found here.

Late. Bad news for the defendant in Napoli v. City of Windsor. A motion for summary judgment on qualified immunity was denied on January 12, 2009. On May 14, 2009, an order was issued clarifying the January 12, 2009. On June 9, 2009, the defendant filed a notice of appeal. Too late! Because the May 14, 2009 order did not relate to qualified immunity issue, it did not restart the time to appeal. The Second Circuit dismissed the appeal for lack of appellate jurisdiction.

The decision in the case can be found here.

New nomination. President Obama as nominated Assistant U.S. Attorney Raymond Lohier, Jr. for a seat on the Second Circuit. Mr. Lohier is chief of the Securities and Commodities Fraud Task Force of the U.S. Attorney's Office of the Southern District of New York.

For more information on this nomination, click here.

Certified questions. On an appeal from a preliminary injunction, enjoining the sale of untaxed cigarettes by a American Indian merchant to anyone other than members of the tribe, the Second Circuit certified two questions to the New York State Court of Appeals:

1. Does New York Tax Law 471-e, either by itself or in combination with the provisions of section 471, impose a tax on cigarettes sold on Native American reservations when some or all of these cigarettes may be sold to persons other than members of the reservation's nation or tribe?

2. If the answer to Question 1 is "no," does New York Tax Law 471 alone impose a tax on cigarettes sold on Native American reservations when some or all of those cigarettes may be sold to person other than members of the reservation's nation or tribe?

The decision in City of New York v. Golden Feather Smoke Shop, Inc. can be found here.

New Second Circuit Judge. President Obama has nominated Judge Robert Chatigny for a seat on the Second Circuit. Judge Chatigny currently sits as a district court judge in the District of Connecticut.

More information about the appointment can be found here.

Lynne Stewart. The Second Circuit refused to rehear en banc its decision relating to the sentence of attorney Lynne Stewart. The decision denying rehearing en banc in United States v. Stewart, along with the concurrences (by one by Chief Judge Jacobs and joined by Judges Wesley and Hall and one by Judge Pooler) and dissent (by Judges Cabranes and Raggi) can be found here. Even Judge Cabranes's dissent did not favor en banc review in order to shorten Lynne Stewart's sentence or even to maintain the lenient sentence imposed by the District Court. He felt that certain issues should have been addressed, but were not, by the panel. These issues included the reasonableness of Lynne Stewart's sentence, the "nature" and "seriousness" of Stewart's offense and the purported lack of harm caused by the offense. It is likely that she will be spending a longer period behind bars than was originally thought.

Holocaust insurance claims. The plaintiffs, relatives of victims of the Holocaust, sought to recover insurance proceeds from policies purchased by the victims. The Second Circuit, agreeing with the District Court, held that the state law claims were preempted by the United States foreign policy, which favors the resolution of such claims by the International Commission on Holocaust Era Insurance Claims. The Court's decision was based on the Supreme Court case, American Insurance Association v. Garamendi.

The decision in In re Assicurizioni Generali, S.P.A. can be found here.

Commerce Clause. The District Court, in United States v. Guzman, had held that 42 U.SC. 16913, which provides that a convicted sex offender must register "and keep the registration current, in each jurisdiction where the offender resides, . . is . . . employ[ed], [or] is a student," exceeds congressional power under the Commerce Clause. The Second Circuit disagreed, holding that "[t]o the extent that [section] 16913 regulates solely intrastate activity, its means 'are "reasonably adapted" to teh attainmnet of a legitimate end under the commerce power.'"

The decision can be found here.

Significant romantic relationship. The Second Circuit vacated a condition of supervise release that required the defendant to inform the Probation Department if he entered into a significant romantic relationship and to inform the other party in the relationship of his conviction for possession of child pornography. The Court held that the condition was too vague and not reasonably related to sentencing objectives in that there was nothing in the record suggesting that he had been a threat to a romantic partner. The Court also found that the condition effected an unnecessary deprivation of liberty.

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

Qualified Immunity. While caseworkers who allegedly wrongfully remove a child from his home are not entitled to absolute immunity for their actions, the Second Circuit has asserted that they are entitled to qualified immunity, and upheld the ruling of a District Court (while disagreeing with it on the absolute immunity issue), dismissing an action for wrongul removal of a child.

The decision in Cornejo v. Bell can be found here.

Electronic Filing Cometh. From the Second Circuit website relating to electronic filing in the Second Circuit can be found here.

Blurring. A coffee company got sued by Starbucks when it marketed a dark roasted blend that it called Charbucks Blend (and later Mr. Charbucks). The District Court dismissed Starbuck's action, holding that there was no dilution of Starbuck's trademark or likelihood of dilution and no likelihood that consumers would confuse the dark roasted blend with Starbucks. The Second Circuit reversed in part, and remanded the case to the District Court for a determination as to whether the use of Charbucks Blend and Mr. Charbucks would dilute Starbuck's trademark by "blurring" or tarnishment.

The decision in Starbucks Corporation v. Wolfe's Bourough Coffee, Inc. can be found here.

Not defamatory. The Second Circuit has held that a news report that a prisoner planned to cooperate with prosecutors was not defematory. Cooperating with law enforcement is not a bad thing.

The deciison in Michtavi v. New York Daily News can be found here.

Lynne Stewart is screwed. Lynne Stewart, attorney for radicals and terrorists (allegedly), is now in deep trouble. The Second Circuit has affirmed her conviction and has even suggested that the District Court may have been too lenient. It probably didn't help that she stated that she could do the two-and-a-half-year sentence "standing on her head." For a smart lawyer, she sure didn't handle herself well post-conviction. In my view, she might have expressed her gratitude to the District Court for its lenient sentence (the prosecution had asked for thirty years) and done in her time. If she had done so, she would have completed her sentence by now and could be working on getting reinstated to the bar. That' s not going to happen now.

The Second Circuit's decision in United States v. Stewart can be found here.

Cautionary Tale. Not from the Second Circuit, but of interest to appellate practitioners is the decision in Espitia v. Fouche. The Wisconsin Court of Appeal sanctioned a litigant for an citation error.

The decision in the case can be found here. The relevant portion of the decision is in paragraph 5.

Aiding and Abetting Alien Torts. The Second Circuit has set a high bar for foreign plaintiffs attempting to use U.S. courts to hold foreign defendants accountable for aiding and abetting human rights violations in foreign lands. Such a defendant may only be found liable if he or she "purposefully" aided and abetted a violation of international law. Knowledge alone is not enough.

The decision in The Presbyterian Church of Sudan v. Talisman Energy, Inc. can be found here.

Global warming. The Second Circuit reinstated lawsuits brought by New York State and others who challenged major utilities on carbon dioxide emissions from coal-burning power plants, holding that there was no need for the District Court to defer to the political branches and refrain from hearing the suit until there is a definitive policy statement on global warming from Congress and the President.

The decision in State of Connecticut v. American Electric Power Co. can be found here.

Superior respondeat (or something). The Second Circuit has held that an employer may be held liable for discrimination by third parties, including independent contractors authorized by the employer to make hiring decisions on its behalf.

The decision in Halpert v. Manhattan Apartments Inc. can be found here.