Arbitration
An opt-out clause in the agreement only speaks to the threshold question of scope of arbitration, and does not forestall an exemption from compulsory arbitration in order to effectively vindicate a claim.
Giver internal inconsistencies in the agreement and incorporated rules, a plaintiff might justifiably refrain from pursuing a claim, given the uncertainty of eventual reimbursement.
https://www.ca10.uscourts.gov/opinions/14/14-1502.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.
Tenth Circuit: United States v. Webster
4A/ Ineffective Assistance
No ineffective assistance Habeas, as the theft of personalty from the deft's house during the search did not justify a blanket suppression of the fruits of the search.
https://www.ca10.uscourts.gov/opinions/15/15-3027.pdf
No ineffective assistance Habeas, as the theft of personalty from the deft's house during the search did not justify a blanket suppression of the fruits of the search.
https://www.ca10.uscourts.gov/opinions/15/15-3027.pdf
Tenth Circuit: Espinoza v. Arkansas Valley Adventures
Liability/ Torts
There is no public policy bar to enforcement of a waiver of liability, given the generally permissive view of the legislature and the fact that the relevant misdemeanor negligence statute is silent as to the civil implications of negligence per se.
Strong drafting of release overwhelms considerations of the general characterization of risk
Dissent: Characterization of risk presents a genuine issue of material fact.
https://www.ca10.uscourts.gov/opinions/14/14-1444.pdf
There is no public policy bar to enforcement of a waiver of liability, given the generally permissive view of the legislature and the fact that the relevant misdemeanor negligence statute is silent as to the civil implications of negligence per se.
Strong drafting of release overwhelms considerations of the general characterization of risk
Dissent: Characterization of risk presents a genuine issue of material fact.
https://www.ca10.uscourts.gov/opinions/14/14-1444.pdf
Seventh Circuit: Tracy Williams v. Brandon Brooks
Sentencing
Imposition of boilerplate conditions on supervised release without specific findings upheld.
Conditions requiring that deft support family, regularly work at lawful occupation, alert govt to change of residence, not frequent places where drugs are sold, associate with those convicted of felony, consent to visits by govt officer, notify third parties of conviction impermissibly vague/not supported by findings.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-05/C:14-2458:J:Flaum:aut:T:fnOp:N:1681664:S:0
Imposition of boilerplate conditions on supervised release without specific findings upheld.
Conditions requiring that deft support family, regularly work at lawful occupation, alert govt to change of residence, not frequent places where drugs are sold, associate with those convicted of felony, consent to visits by govt officer, notify third parties of conviction impermissibly vague/not supported by findings.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-05/C:14-2458:J:Flaum:aut:T:fnOp:N:1681664:S:0
Seventh Circuit: USA v. Matthew Poulin
S1983 - false arrest
As plaintiff had no specific memory of activating the turn signal during the lane change, the arrest was lawful.
Deft's strange actions justified use of force in arrest.
State court's dismissal of charge of resisting arrest does not create a genuine issue of material fact as to whether the deft resisted arrest.
No FRE 408 claim against introduction of diversion agreement.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-05/C:15-1763:J:Flaum:aut:T:fnOp:N:1681632:S:0
As plaintiff had no specific memory of activating the turn signal during the lane change, the arrest was lawful.
Deft's strange actions justified use of force in arrest.
State court's dismissal of charge of resisting arrest does not create a genuine issue of material fact as to whether the deft resisted arrest.
No FRE 408 claim against introduction of diversion agreement.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-05/C:15-1763:J:Flaum:aut:T:fnOp:N:1681632:S:0
Sixth Circuit: Tracy Morton v. Vanderbilt University
Employment
As some workers were paid for 60 days after they were told to leave, the layoffs did not trigger the Federal WARN act, as a subset of the workers laid off were technically still employed.
http://www.ca6.uscourts.gov/opinions.pdf/16a0002p-06.pdf
As some workers were paid for 60 days after they were told to leave, the layoffs did not trigger the Federal WARN act, as a subset of the workers laid off were technically still employed.
http://www.ca6.uscourts.gov/opinions.pdf/16a0002p-06.pdf
Sixth Circuit: Norbert Kelsey v. Melissa Pope
Habeas: Tribes - Crim
Native American tribes have extraterritorial criminal jurisdiction over their members.
Extraterritorial contacts between tribe members at a tribal function implicate core notions of sovereignty.
Presumption against implicit divestment by Congressional act.
As the conduct was of the nature that would generally lead to prosecution somewhere, no Due Process notice considerations with the introduction of an unforeseen sovereignty.
Tribal court's exercise of jurisdiction was routine common law decisionmaking.
http://www.ca6.uscourts.gov/opinions.pdf/16a0001p-06.pdf
Native American tribes have extraterritorial criminal jurisdiction over their members.
Extraterritorial contacts between tribe members at a tribal function implicate core notions of sovereignty.
Presumption against implicit divestment by Congressional act.
As the conduct was of the nature that would generally lead to prosecution somewhere, no Due Process notice considerations with the introduction of an unforeseen sovereignty.
Tribal court's exercise of jurisdiction was routine common law decisionmaking.
http://www.ca6.uscourts.gov/opinions.pdf/16a0001p-06.pdf
Fifth Circuit: Stephen Miller v. Metrocare Services, et al
Discrimination, S1983 name-clearing
Sufficient nondiscriminatory basis for ending of employment.
Confrontation of witnesses is not required at a S1983 name-clearing proceeding under procedural due process.
http://www.ca5.uscourts.gov/opinions/pub/15/15-10086-CV0.pdf
Sufficient nondiscriminatory basis for ending of employment.
Confrontation of witnesses is not required at a S1983 name-clearing proceeding under procedural due process.
http://www.ca5.uscourts.gov/opinions/pub/15/15-10086-CV0.pdf
Fifth Circuit: USA v. Jesus Ramos-Rodriguez
FRE
Evidence of prior traffic stop in, as it helps to establish deft's knowledge of contraband in vehicle.
No error in the introduction of profile-based evidence that tended to establish mens rea.
http://www.ca5.uscourts.gov/opinions/pub/14/14-50846-CR0.pdf
Evidence of prior traffic stop in, as it helps to establish deft's knowledge of contraband in vehicle.
No error in the introduction of profile-based evidence that tended to establish mens rea.
http://www.ca5.uscourts.gov/opinions/pub/14/14-50846-CR0.pdf
Fifth Circuit: Lillie Wheat v. Florida Prsh Juv Justice Cmsn
Title VII/FMLA
Assignment to janitorial duties is not a per se materially adverse action.
Plaintiff did not establish pay adjustment as materially adverse.
Denial of reassignment not per se materially adverse.
Disparate treatment of others similarly situated raised genuine issue of material fact on the retaliatory dismissal.
Dissent: Janitorial duties materially adverse on this record.
http://www.ca5.uscourts.gov/opinions/pub/14/14-30788-CV0.pdf
Assignment to janitorial duties is not a per se materially adverse action.
Plaintiff did not establish pay adjustment as materially adverse.
Denial of reassignment not per se materially adverse.
Disparate treatment of others similarly situated raised genuine issue of material fact on the retaliatory dismissal.
Dissent: Janitorial duties materially adverse on this record.
http://www.ca5.uscourts.gov/opinions/pub/14/14-30788-CV0.pdf
Third Circuit: USA v. Jason Moreno
FRE, FRCrimP
Admission of written statements of investigating agent read into the record by a witness under the prior consistent statements hearsay exception violated the Confrontation Clause, but the error was harmless.
No plain error in the sentencing bump for 50 victims.
Prosecutor's unauthorized cross during allocution violated the common law right of allocution, and as it was contrary to the purposes of the relevant FRCrimP rule, the error was plain. Sentence vacated.
http://www2.ca3.uscourts.gov/opinarch/141568p.pdf
Admission of written statements of investigating agent read into the record by a witness under the prior consistent statements hearsay exception violated the Confrontation Clause, but the error was harmless.
No plain error in the sentencing bump for 50 victims.
Prosecutor's unauthorized cross during allocution violated the common law right of allocution, and as it was contrary to the purposes of the relevant FRCrimP rule, the error was plain. Sentence vacated.
http://www2.ca3.uscourts.gov/opinarch/141568p.pdf
Third Circuit: Chesapeake Appalachia LLC v. Scout Petroleum
Arbitration - class actions
Neither the terms of the contract nor the incorporation of the arbitration organization's rules constituted a clear and unmistakable consent to allowing the arbitrator to define the scope of a class arbitration.
http://www2.ca3.uscourts.gov/opinarch/151275p.pdf
Neither the terms of the contract nor the incorporation of the arbitration organization's rules constituted a clear and unmistakable consent to allowing the arbitrator to define the scope of a class arbitration.
http://www2.ca3.uscourts.gov/opinarch/151275p.pdf
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