Trademarks - Must Read.
En Banc.
Lanham Act provision barring registration of disparaging marks TKO'd by First Amendment under both strict and intermediate scrutiny.
Concurrence: Also void for vagueness.
C/D: Constitutional as to commercial speech, unconstitutional as to political speech. [NB case at bar is an Asian-American band wanting to trademark the name "The Slants".]
Dissent: Nope
Other Dissent: Nope.
110 Pages.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-1203.Opinion.12-18-2015.1.PDF
Since 2011. An occasional commonplacing of the U.S. Circuit Courts of Appeal.
Neither an authoritative statement of the law nor legal advice. Quick work.
Eleventh Circuit: USA v. Edgar Alexander Pirela Pirela
Immigration, Statutory construction
A material misstatement of fact in an application for a non-immigrant visa constitutes an unlawful procurement of that visa, regardless of whether the fact constituted a statutory bar to the granting of the visa.
http://media.ca11.uscourts.gov/opinions/pub/files/201413767.pdf
A material misstatement of fact in an application for a non-immigrant visa constitutes an unlawful procurement of that visa, regardless of whether the fact constituted a statutory bar to the granting of the visa.
http://media.ca11.uscourts.gov/opinions/pub/files/201413767.pdf
Tenth Circuit: Birch v. Polaris Industries
Torts. standards of appellate review.
Appellant waived challenge to clear error review of magistrate's holdings on matters not explicitly dispositive when counsel explicitly accepted the standard of review in the District Court.
No abuse of discretion in denial of motion to amend the claim when nine months lapse after first notice and four months lapse after confirming evidence.
No abuse of discretion in denial of motion for discovery where the discovery factors are not clearly set for th in the affidavit.
No abuse of discretion in summary judgment where the unamended complaint doesn't state a claim.
https://www.ca10.uscourts.gov/opinions/15/15-4066.pdf
Appellant waived challenge to clear error review of magistrate's holdings on matters not explicitly dispositive when counsel explicitly accepted the standard of review in the District Court.
No abuse of discretion in denial of motion to amend the claim when nine months lapse after first notice and four months lapse after confirming evidence.
No abuse of discretion in denial of motion for discovery where the discovery factors are not clearly set for th in the affidavit.
No abuse of discretion in summary judgment where the unamended complaint doesn't state a claim.
https://www.ca10.uscourts.gov/opinions/15/15-4066.pdf
Ninth Circuit: USA v. Douglas Decinces
Immigration/Administrative
Cheveron deference to agency adjudication holding that a federal law deeming South Korean citizenship not a bar to refugee status does not preclude a finding that the petitioner resettled in South Korea.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/22/11-73587.pdf
Cheveron deference to agency adjudication holding that a federal law deeming South Korean citizenship not a bar to refugee status does not preclude a finding that the petitioner resettled in South Korea.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/22/11-73587.pdf
Ninth Circuit: Pacific Radiation Oncology v. The Queen's Medical Center
Injunctions - Important one.
There must be a nexus between the harm alleged in the application for injunction and the claims in the underlying action.
An injunction seeking to bar release of patient records based on federal statute and the state constitution cannot be considered in a fair trade practices case. It's a discovery matter.
"Pled" as past tense in the lede.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/22/14-17050.pdf
There must be a nexus between the harm alleged in the application for injunction and the claims in the underlying action.
An injunction seeking to bar release of patient records based on federal statute and the state constitution cannot be considered in a fair trade practices case. It's a discovery matter.
"Pled" as past tense in the lede.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/22/14-17050.pdf
Ninth Circuit: Sung Jang v. Loretta E. Lynch
Securities - Interlocutory appeals
Government can appeal interlocutory evidentiary rulings, however tentative.
Evidence of prior bad acts in for common scheme and lack of coincidence - also held on de novo review to be more probative than prejudicial.
Court does not have pendent jurisdiction over appeal of motion to dismiss when adjudicating an interlocutory evidentiary appeal.
Court does not have jurisdiction over double jeopardy claim based in multiplicious indictment by means of the collateral order doctrine, as the issue can be raised on appeal.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/22/15-50033.pdf
Government can appeal interlocutory evidentiary rulings, however tentative.
Evidence of prior bad acts in for common scheme and lack of coincidence - also held on de novo review to be more probative than prejudicial.
Court does not have pendent jurisdiction over appeal of motion to dismiss when adjudicating an interlocutory evidentiary appeal.
Court does not have jurisdiction over double jeopardy claim based in multiplicious indictment by means of the collateral order doctrine, as the issue can be raised on appeal.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/12/22/15-50033.pdf
Eighth Circuit: United States v. Stevenson Harrison
Hearsay in parole revocation hearing.
Where the District Court does not explicitly permit hearsay evidence at a parole revocation hearing, the appellate court can conduct a de novo review on the question if the factual record is sufficiently developed.
Where the costs of producing evidence at a parole revocation hearing are unduly burdensome and impractical, no abuse of discretion in admitting parole officer testimony and police reports.
Virginia statute of Malicious Bodily Injury to Law Enforcement Officer is categorically a Grade A/ violent offense.
Dissent - FRCrimP requires specific admission of hearsay as hearsay. Parole officer testimony derived from reading the police reports. Deft's corroborating statements limited to attempting to run away, and being grabbed by police officers, who subsequently ripped his shirt and fell down a flight of stairs. Subsequent alleged fracas unconfirmed.
http://media.ca8.uscourts.gov/opndir/15/12/151246P.pdf
Where the District Court does not explicitly permit hearsay evidence at a parole revocation hearing, the appellate court can conduct a de novo review on the question if the factual record is sufficiently developed.
Where the costs of producing evidence at a parole revocation hearing are unduly burdensome and impractical, no abuse of discretion in admitting parole officer testimony and police reports.
Virginia statute of Malicious Bodily Injury to Law Enforcement Officer is categorically a Grade A/ violent offense.
Dissent - FRCrimP requires specific admission of hearsay as hearsay. Parole officer testimony derived from reading the police reports. Deft's corroborating statements limited to attempting to run away, and being grabbed by police officers, who subsequently ripped his shirt and fell down a flight of stairs. Subsequent alleged fracas unconfirmed.
http://media.ca8.uscourts.gov/opndir/15/12/151246P.pdf
Eighth Circuit: Stuart Wright v. Sean Franklin
Bivvens - Taser-aided arrest of the wrong guy during a league basketball game.
Footnote in motion saying that an argument isn't made doesn't operate as waiver - de novo review on the question of whether there was a clearly-established right.
Qualified immunity on the taser shock, as it was not yet clearly established in the Circuit that a person thought to be possibly armed and dangerous should not be tasered if they were nonviolent and not attempting to flee.
Basis for the detention subsequently raised need not have been thought about at the time - objective reasonableness controls.
20 minute detention of wrong person after having determined them to be the wrong person is a minimal intrusion on the liberty interest, and does not justify a Bivvens claim.
http://media.ca8.uscourts.gov/opndir/15/12/143606P.pdf
Footnote in motion saying that an argument isn't made doesn't operate as waiver - de novo review on the question of whether there was a clearly-established right.
Qualified immunity on the taser shock, as it was not yet clearly established in the Circuit that a person thought to be possibly armed and dangerous should not be tasered if they were nonviolent and not attempting to flee.
Basis for the detention subsequently raised need not have been thought about at the time - objective reasonableness controls.
20 minute detention of wrong person after having determined them to be the wrong person is a minimal intrusion on the liberty interest, and does not justify a Bivvens claim.
http://media.ca8.uscourts.gov/opndir/15/12/143606P.pdf
Eighth Circuit: Sintia Rodriguez-Mercado v. Loretta E. Lynch
Immigration.
Adverse findings of credibility as to specific events not overwhelmed by establishment of general situation of country of origin.
Voluntary departure not preserved on appeal. Agency could still do it, though.
http://media.ca8.uscourts.gov/opndir/15/12/143559P.pdf
Adverse findings of credibility as to specific events not overwhelmed by establishment of general situation of country of origin.
Voluntary departure not preserved on appeal. Agency could still do it, though.
http://media.ca8.uscourts.gov/opndir/15/12/143559P.pdf
Seventh Circuit: Julia Egan v. David Pineda
Posner - Civil Practice / Ethics
Six month delay in withdrawing an element of a complaint repudiated by plaintiff in deposition justified 5K sanction to counsel.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-23/C:15-2011:J:Posner:aut:T:fnOp:N:1676944:S:0
Six month delay in withdrawing an element of a complaint repudiated by plaintiff in deposition justified 5K sanction to counsel.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-23/C:15-2011:J:Posner:aut:T:fnOp:N:1676944:S:0
Seventh Circuit: Roy Mitchell v. Edward Wall
Posner - Mootness & Vacatur.
A party waives the right to vacatur of a lower court's denial of a preliminary injunction by not requesting it upon appeal in a case that has become moot. Circuit practice is not to typically vacate lower court holding in this situation. Although the decision below was adverse to petitioner, it was not preclusive as to the issuance of a permanent injunction.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-23/C:15-1881:J:Posner:aut:T:fnOp:N:1676912:S:0
A party waives the right to vacatur of a lower court's denial of a preliminary injunction by not requesting it upon appeal in a case that has become moot. Circuit practice is not to typically vacate lower court holding in this situation. Although the decision below was adverse to petitioner, it was not preclusive as to the issuance of a permanent injunction.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-23/C:15-1881:J:Posner:aut:T:fnOp:N:1676912:S:0
Seventh Circuit: USA v. Bryce Woods
Posner - Sentencing.
Mitigation claim that the deft had engaged in subsequent legitimate business consulting borders on the frivolous, and need not have been specifically addressed in sentencing findings.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-23/C:15-1495:J:Posner:aut:T:fnOp:N:1676922:S:0
Mitigation claim that the deft had engaged in subsequent legitimate business consulting borders on the frivolous, and need not have been specifically addressed in sentencing findings.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-23/C:15-1495:J:Posner:aut:T:fnOp:N:1676922:S:0
Seventh Circuit: Dianne Khan v. USA
Posner - FTCA SOL.
A letter to a federal agency complaining about an action of the agency is not sufficient notice of claim under FTCA if there is no demand for compensation.
In assessing the window of opportunity for filing a tort claim against the federal government, the tort-specific limitations displace the general civil suit limitations.
Bivvens time-barred under incorporated state law.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-23/C:14-3292:J:Posner:aut:T:fnOp:N:1676899:S:0
A letter to a federal agency complaining about an action of the agency is not sufficient notice of claim under FTCA if there is no demand for compensation.
In assessing the window of opportunity for filing a tort claim against the federal government, the tort-specific limitations displace the general civil suit limitations.
Bivvens time-barred under incorporated state law.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-23/C:14-3292:J:Posner:aut:T:fnOp:N:1676899:S:0
Sixth Circuit: Samantha Bachynski v. Anthony Stewart
Habeas - Miranda.
After post-Miranda invocation of right to counsel, neither the return of detectives to the cell with a phone book and a cell phone nor subsequent re-Mirandizing constitutes interrogation or badgering.
A lower court's citation of a case that rebuts a deft's claim of law based on an asserted factual circumstance does not operate as a finding of that factual circumstance.
Deft's allegations of minatory statements made by the detectives on their return insufficient to violate clearly established constitutional law on Miranda warnings.
Also harmless error, given the other evidence.
http://www.ca6.uscourts.gov/opinions.pdf/15a0300p-06.pdf
After post-Miranda invocation of right to counsel, neither the return of detectives to the cell with a phone book and a cell phone nor subsequent re-Mirandizing constitutes interrogation or badgering.
A lower court's citation of a case that rebuts a deft's claim of law based on an asserted factual circumstance does not operate as a finding of that factual circumstance.
Deft's allegations of minatory statements made by the detectives on their return insufficient to violate clearly established constitutional law on Miranda warnings.
Also harmless error, given the other evidence.
http://www.ca6.uscourts.gov/opinions.pdf/15a0300p-06.pdf
Sixth Circuit: Brian Bauman v. Bank of America
FDCPA.
A counterclaim for the debt is not a compulsory counterclaim in a FDCPA action based on a lender's previous illegal conduct in foreclosure actions.
http://www.ca6.uscourts.gov/opinions.pdf/15a0299p-06.pdf
A counterclaim for the debt is not a compulsory counterclaim in a FDCPA action based on a lender's previous illegal conduct in foreclosure actions.
http://www.ca6.uscourts.gov/opinions.pdf/15a0299p-06.pdf
Sixth Circuit: USA v. Vishnu Meda
Hearsay, Conspiracy, Sentencing.
No Double Jeopardy, as although the offenses were of the same nature and occurred at the same place, the players and the overt acts differed.
No prosecutorial vindictiveness, as there was no evidence in the record of malice, and the indictment was returned.
Although trial court did not explicitly find the person in question to be a co-conspirator, a preponderance of evidence to that effect allows the testimony to survive plain error review under the co-conspirator exception to the hearsay rule.
Testimony by deft's husband offered to prove state of mind of deft during a business meeting properly excluded under hearsay, as it worked to impeach earlier testimony as to the content of the meeting.
Prosecutors' sidebar followed by court's in camera hearing and warning to witness on self-incrimination was not witness intimidation by prosc.
No error in denial of grant of immunity to defense witness, as there was no showing as to likely effect on the case.
No error in court's refusal to order the witness to invoke 5A on stand, or bar prosecution cross.
Sentencing - once a factor is proven at trial, burden shifts to deft to specifically rebut - a general indictment of the testimony doesn't suffice.
No error in sentencing bump for leadership, as deft was part owner and sole signatory of fraudulent organization.
http://www.ca6.uscourts.gov/opinions.pdf/15a0298p-06.pdf
No Double Jeopardy, as although the offenses were of the same nature and occurred at the same place, the players and the overt acts differed.
No prosecutorial vindictiveness, as there was no evidence in the record of malice, and the indictment was returned.
Although trial court did not explicitly find the person in question to be a co-conspirator, a preponderance of evidence to that effect allows the testimony to survive plain error review under the co-conspirator exception to the hearsay rule.
Testimony by deft's husband offered to prove state of mind of deft during a business meeting properly excluded under hearsay, as it worked to impeach earlier testimony as to the content of the meeting.
Prosecutors' sidebar followed by court's in camera hearing and warning to witness on self-incrimination was not witness intimidation by prosc.
No error in denial of grant of immunity to defense witness, as there was no showing as to likely effect on the case.
No error in court's refusal to order the witness to invoke 5A on stand, or bar prosecution cross.
Sentencing - once a factor is proven at trial, burden shifts to deft to specifically rebut - a general indictment of the testimony doesn't suffice.
No error in sentencing bump for leadership, as deft was part owner and sole signatory of fraudulent organization.
http://www.ca6.uscourts.gov/opinions.pdf/15a0298p-06.pdf
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