Patents, (FRCP)
Given longstanding agency practice, where the filing of a continuation application and the patenting of the device occur on the same day, the former is construed to precede the latter.
Immersion Corporation v. HTC Corporation
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.
DC Circuit: United States v. Philip Morris USA Inc.
FCA
Relator's FCA action barred due to prior disclosure of the general practice.
Court-ordered disclosures are sufficient to trigger the bar.
Ancillary contractual violations would have been discovered after the principal one was revealed.
Competitor's knowledge of practices was secondhand, as he had no affiliation with the deft.
United States v. Philip Morris USA Inc.
DC Circuit: Rene Lopez v. Council on American-Islamic
Agency, Tort
Given close interrelation between national advocacy organization and local chapter, genuine issue of material fact exists as to whether an actual agency relationship existed with respect to unlicensed legal practice.
Rene Lopez v. Council on American-Islamic
DC Circuit: Verizon New England Inc. v. NLRB
Labor law
As the arbitrator's order deprived the union of a right that was waiveable under the Act, and there was no palpable error, the Board should have upheld the arbitration ruling.
Verizon New England Inc. v. NLRB
As the arbitrator's order deprived the union of a right that was waiveable under the Act, and there was no palpable error, the Board should have upheld the arbitration ruling.
Verizon New England Inc. v. NLRB
DC Circuit: NLRB v. Southwest Regional Council
Labor Law
Board did not distinguish precedent to the contrary when holding that presence of management in the room during the signing of representation cards was an unfair labor practice.
NLRB v. Southwest Regional Council
Tenth Circuit: Mayfield v. Bethards
Animal Law, Fourth Amendment
Warrantless killing of pet dog was a seizure of property under the Fourth Amendment, qualified immunity denied.
Mayfield v. Bethards
Tenth Circuit: Pikk v. Pedersen
Corporations, Board Law
To state a claim, suit relying on futility exception must plead facts that establish that directors faced a substantial risk of liability under state statute.
Intentionality requirement implies knowledge of wrongfulness.
Lack of independence not proven
Pikk v. Pedersen
Tenth Circuit: United States v. Holloway
Ineffective Assistance, Fraud, Sentencing
Counsel of Choice claim construed as Ineffective Assistance claim, barred until collateral challenge.
Admission of excessive victim impact statements harmless error.
No error in exclusion of witness' prior convictions/judgments, as impeachment from same set of facts could be done in other ways.
As trial objection was to number of victims that the defendant knew about, and not the objective number, objection to sentencing enhancement not preserved.
United States v. Holloway
Counsel of Choice claim construed as Ineffective Assistance claim, barred until collateral challenge.
Admission of excessive victim impact statements harmless error.
No error in exclusion of witness' prior convictions/judgments, as impeachment from same set of facts could be done in other ways.
As trial objection was to number of victims that the defendant knew about, and not the objective number, objection to sentencing enhancement not preserved.
United States v. Holloway
Eighth Circuit: United States v. Marvance Robinson
Sentencing, ACCA residual clause
Where the record does not establish whether deft was sentenced according to the use of generic predicate convictions or qualitatively specific ones, remand.
Where the record does not establish whether deft was sentenced according to the use of generic predicate convictions or qualitatively specific ones, remand.
United States v. Marvance Robinson
Eighth Circuit: Jerry Von Rohr v. Reliance Bank
Administrative
Deference to agency finding that a contract claim for one year of post-employment salary was barred by FDIC "golden parachute" law, as contrary precedent involved staturory, not contract, claims.
Auer deference to agency on scope not relevant, as agency cites Blacks Law Dictionary for disputed term. Plain meaning.
Deference to agency finding that a contract claim for one year of post-employment salary was barred by FDIC "golden parachute" law, as contrary precedent involved staturory, not contract, claims.
Auer deference to agency on scope not relevant, as agency cites Blacks Law Dictionary for disputed term. Plain meaning.
Jerry Von Rohr v. Reliance Bank
Eighth Circuit: Automated Matching Systems v. U.S. Securities and Exchange
Administrative, Securities
Chevron deference to agency finding that exercise of the powers traditionally associated with large-volume exchanges categorically precludes classification as an exchange exempt from the registration requirements.
Ancillary challenges to agency finding barred under APA.
Automated Matching Systems v. U.S. Securities and Exchange
Eighth Circuit: Jason Procknow v. Hugh Curry
FRE,
Admission of prior bad act - impersonating a peace officer - harmless error.
Conviction for attempted murder went to reasonableness of the use of force during arrest for parole violation.
Motion of hands toward body of prone plaintiff after two taserings made the application of a third tasering not unreasonable.
Admission of prior bad act - impersonating a peace officer - harmless error.
Conviction for attempted murder went to reasonableness of the use of force during arrest for parole violation.
Motion of hands toward body of prone plaintiff after two taserings made the application of a third tasering not unreasonable.
Jason Procknow v. Hugh Curry
Eighth Circuit: Richland/Wilkin Joint Powers v. Fargo-Moorhead Flood Diversion
Environment, FRCP
District Court injunction upheld, given procedural harms and risk to plaintiffs during the pendency of procedural review.
No error in determination that the project was part of a larger project.
Given the administrative and democratic aspects of the planning process the appropriate standard for merits was that the movant had a fair chance of ultimately prevailing.
Extraterritorial application of foreign state regulatory statute can be considered at the preliminary injunction stage, since the foreign state's interest (?) would be served by the use of the law.
Multistate nature means that Dormant Commerce Clause doesn't bar state statute.
Public interest allowed the injunction to issue without payment of a bond.
District Court injunction upheld, given procedural harms and risk to plaintiffs during the pendency of procedural review.
No error in determination that the project was part of a larger project.
Given the administrative and democratic aspects of the planning process the appropriate standard for merits was that the movant had a fair chance of ultimately prevailing.
Extraterritorial application of foreign state regulatory statute can be considered at the preliminary injunction stage, since the foreign state's interest (?) would be served by the use of the law.
Multistate nature means that Dormant Commerce Clause doesn't bar state statute.
Public interest allowed the injunction to issue without payment of a bond.
Richland/Wilkin Joint Powers v. Fargo-Moorhead Flood Diversion
Eighth Circuit: Raphael Donnell v. United States
AEDPA, Sentencing
Challenge to advisory sentencing guideline is merely suggested by Supreme Court holding on mandatory sentencing guideline, not compelled by it, so the petition is barred as second/successive.
Challenge to advisory sentencing guideline is merely suggested by Supreme Court holding on mandatory sentencing guideline, not compelled by it, so the petition is barred as second/successive.
Raphael Donnell v. United States
Eighth Circuit: Grand Juror Doe v. Robert McCulloch
FRCP
District court erred in dismissing grand juror's 1A challenge to confidentiality laws in order to allow for a state resolution of the claim, as the statutory scheme isn't that complex. Proper remedy is prudential stay.
District court erred in dismissing grand juror's 1A challenge to confidentiality laws in order to allow for a state resolution of the claim, as the statutory scheme isn't that complex. Proper remedy is prudential stay.
Grand Juror Doe v. Robert McCulloch
Eighth Circuit: Laquince Hogan v. Wendy Kelley
Ineffective Assistance, Fourth Amendment
Warrantless search of closed container not a basis for ineffective assistance habeas, given inevitable discovery.
Laquince Hogan v. Wendy Kelley
Seventh Circuit: USA v. Charles A. Evans
Sentencing
Sentencing bump for maintaining premises for drug distribution upheld, since use of the house by other people didn't foreclose the finding.
Obstruction sentencing bump not foreclosed by subsequent acceptance of responsibility in guilty plea.
USA v. Charles A. Evans
Seventh Circuit: Jacob Saathoff v. Andre Davis
FRCP, S1983, Animal Law
No abuse of discretion in denial of sanctions or new trial where trial testimony of officer varied substantially from interrogatory, given vagueness of questions and the chance to respond at trial.
Where a police officer is called to a dogfight and shoots a dog that might or might not have been n top at the time, the standard is reasonable use of force, not inevitability of use of force.
Sufficient evidence.
Jacob Saathoff v. Andre Davis
Seventh Circuit: Semir Sirazi v. General Mediterranean Holding
Posner, Money
Buyout where debtor had contrary contractual obligations amounted to tortious interference, and various other things, as the company was on notice of the contract obligations.
As forgiveness of other obligations that substantially reduced the buyout price was established to be proceeds of the transaction by expert accounting testimony, no error in the jury's counting it as such, despite the fact that it could not have been used to fulfill the contrary contractual obligation.
Unjust enrichment, conspiracy claims justified, given that there was unjust enrichment & conspiracy.
Under state law, refinancing a loan and assignment of the loan are identical with respect to a contract referencing the loan.
Award should have been reduced by funds awarded in bankruptcy.
Unjust enrichment award against individual upheld, given ownership of company that was enriched. Punitive damages inappropriate.
Semir Sirazi v. General Mediterranean Holding
Sixth Circuit: Adam Eggers v. Warden, Lebanon Corr. Inst.
Habeas, FRCrimP
State court holding that an assertion of innocence during sentencing allocution didn't require the court to conduct a hearing into the voluntary nature of the plea was not contrary to or an unreasonable application of Supreme Court precedent.
Adam Eggers v. Warden, Lebanon Corr. Inst.
State court holding that an assertion of innocence during sentencing allocution didn't require the court to conduct a hearing into the voluntary nature of the plea was not contrary to or an unreasonable application of Supreme Court precedent.
Adam Eggers v. Warden, Lebanon Corr. Inst.
Sixth Circuit: Cheryl Minor v. Comm'r of Social Security
Fees
Court's adoption of magistrate's lodestar fees calculation was insufficiently explained, as court adopted statutory cap contrary to state bar numbers and disputed amount of time spent.
Cheryl Minor v. Comm'r of Social Security
Court's adoption of magistrate's lodestar fees calculation was insufficiently explained, as court adopted statutory cap contrary to state bar numbers and disputed amount of time spent.
Cheryl Minor v. Comm'r of Social Security
Fifth Circuit: Jimmie Williams v. J.B. Hunt Transport, Inc.
ADA
Where the plaintiff's physician and the deft's physician disagree on whether the plaintiff is capable of doing the job courts may impose a prudential administrative exhaustion requirement to reconcile the physicians' opinions.
Jimmie Williams v. J.B. Hunt Transport, Inc.
Where the plaintiff's physician and the deft's physician disagree on whether the plaintiff is capable of doing the job courts may impose a prudential administrative exhaustion requirement to reconcile the physicians' opinions.
Jimmie Williams v. J.B. Hunt Transport, Inc.
Fifth Circuit: Jessie Grace, III v. Darrel Vannoy, Warden
FRCP
A stay of a federal Habeas petition to allow the petitioner to exhaust newly discovered claims in state court is not a collateral order subject to direct interlocutory appeal, as the issuance of the stay does not directly or indirectly moot the claims of either party.
Jessie Grace, III v. Darrel Vannoy, Warden
Fourth Circuit: Dora Beltran v. Brent Cardall
Habeas, Immigration
Where petitioner alleges detention in violation of Constitution and statutes, federal courts have subject matter jurisdiction over Habeas petition on behalf of alien minor -- not a prohibited review of administrative determinations.
Determination that a minor is an unaccompanied alien child for purposes of the statute is a fact-intensive question, agency determination prevails.
As the specific controls the general, a statute authorizing detention and barring release to parent found inappropriate must be construed to bar inappropriate release even after the pendency of authorized detention.
Administrative decision that release to parent is inappropriate satisfies substantive DP.
Where a parent is seeking custody of child, procedural due process implies more than substantive due process inquiry -- full notice, appeal & Matthews v. Eldrige balancing implied.
Dissent:
Error as a matter of law to say that the statute allows gov't to determine that minor is "unaccompanied" if parent determined to be inappropriate.
Dora Beltran v. Brent Cardall
Fourth Circuit: Robert Sarvis v. James Alcorn
Election Law
Commonwealth's ballot ordering scheme does not impede access to ballot or association rights--no heightened scrutiny, despite potential "windfall vote" from order on the page.
Commonwealth's interest in preserving symmetry, reducing voter confusion properly pleaded. Little burden on petitioner.
Question for the political branches.
Robert Sarvis v. James Alcorn
Commonwealth's ballot ordering scheme does not impede access to ballot or association rights--no heightened scrutiny, despite potential "windfall vote" from order on the page.
Commonwealth's interest in preserving symmetry, reducing voter confusion properly pleaded. Little burden on petitioner.
Question for the political branches.
Robert Sarvis v. James Alcorn
Fourth Circuit: In re: John McFadden
Habeas/AEDPA
Newly discovered evidence that deft lost out on a favorable plea offer is not grounds for a second/successive petition.
In re: John McFadden
Second Circuit: N.Y.C. & Vicinity Dist. Council of the United Bhd. of Carpenters v. Ass’n
Labor Law, Arbitration
When an employer organization has an agreement with an International union, and that agreement contradicts elements of the Local's court-supervised contract, an arbitration award allowing the employers to follow the agreement with the International is within socpe, entitled to deference, and does not violate public policy.
The arbitrator's finding does present a question of whether the court-approved Local contract was approved with insufficient information.
N.Y.C. & Vicinity Dist. Council of the United Bhd. of Carpenters v. Ass’n
When an employer organization has an agreement with an International union, and that agreement contradicts elements of the Local's court-supervised contract, an arbitration award allowing the employers to follow the agreement with the International is within socpe, entitled to deference, and does not violate public policy.
The arbitrator's finding does present a question of whether the court-approved Local contract was approved with insufficient information.
N.Y.C. & Vicinity Dist. Council of the United Bhd. of Carpenters v. Ass’n
Second Circuit: Ashim Khattri Chettri, et al. v. Nepal Rastra Bank, et al.
FISA
When a foreign bank that is an instrument of the foreign sovereign freezes an account acting while acting in its governmental/regulatory capacity, the commercial exception to FISA isn't a basis for jurisdiction.
Freezing of account didn't happen in US, didn't have sufficient direct effects in US.
Routine law-enforcement freezing of funds doesn't rise to the level of a taking without compensation in violation of international law.
Ashim Khattri Chettri, et al. v. Nepal Rastra Bank, et al.
Second Circuit: Austin v. Town of Farmington
FHA does not impose a per se bar to a municipal requirement that accommodations constructed contrary to code be removed after the disabled person no longer lives there.
Whether the removal requirement violates the FHA is a question of reasonableness for the court; can't be made from pleadings.
Retaliation claim under the FHA must plead and prove animus.
Austin v. Town of Farmington
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