Fifth Anniversary

On the evening of July 5, 2011, from the Starbucks in Worldwide Plaza in midtown, the predecessor site to this one posted its first daily rundown:

http://manhattanbarrister.blogspot.com/2011_07_05_archive.html

It's been an off-and-on endeavor, and at times, it was a bit short-form, but it's proved to be a very interesting hobby over the years.  Sometime in 2013, the site passed 2,500 opinion summaries, and there have probably been another thousand or so since.  All freely linked, no ads, and most summaries same-day.  No marketing, but eventually the long tail of organic search returns resulted in a decent audience.

Scrambling from Starbucks to Starbucks to post the last few decisions of the night.... Cadging a library terminal when the equipment gave out...  Interesting times.  Not really a labor of love.  More like a labor of respect.  And excellent batting practice.

Onward.

-CB

Federal Circuit: Amgen Inc. v. Apotex Inc.

Patent, Injunctions

Statutory injunction for biosimilar product marketing conflict upheld.


Amgen Inc. v. Apotex Inc.

DC Circuit: Competitive Enterprise Institute v. Office of Science and Technology Policy

FOIA

Where the documents have not been ceded to the individual, documents on external, non-government websites are within the scope of FOIA.

Concur: Presumption of government control over agency records.

Competitive Enterprise Institute v. Office of Science and Technology Policy

DC Circuit: The Tennis Channel, Inc. v. FCC

Administrative

Agency commission holding that ALJ finding was not supported by substantial evidence and declining to remand for development of the record should be understood to reflect a plenary assessment of the record and a decision on the merits to the contrary where the decision not to reopen is within the agency's discretion.


The Tennis Channel, Inc. v. FCC

DC Circuit: Public Employees v. Abigail Hopper

Environment, Administrative

Agency took an insufficient hard look in preparation of environmental impact statement, given geologist's testimony.

Deference to Coast Guard on the scope of navigation safety terms statute requires to be included in the contract.

Agency's refusal to consider economic impact statement offered by environmental interest group was arbitrary/capricious.


Public Employees v. Abigail Hopper

DC Circuit: Rosebud Mining Company v. MSHA

Administrative

Given mining safety law's requirement that safety measures be redundant, agency adjudication's requirement of multiple safety factors was not arbitrary/capricious and was supported by substantial evidence.

Rosebud Mining Company v. MSHA

Eighth Circuit: United States v. Tonney Valure

Sentencing

No abuse of discretion in court's order that within-guidelines sentences for simultaneous violation of multiple supervised releases be served consecutively.

United States  v.  Tonney Valure

Eigth Circuit: United States of America v. U.S. Bank National Association

Property

Under state law, a substantial delay in recordation of a successor deed can preclude a finding that a lien interest perfected against the earlier deed attaches with no loss of priority to the second instrument.

Dissent - state would apply equitable principles.


United States of America  v.  U.S. Bank National Association

Eighth Circuit: James Coterel v. Dorel Juvenile Group, Inc.

FRCP

In products-liability action, general verdict form prevents plaintiffs from establishing that improperly admitted evidence was dispositive.


James Coterel  v.  Dorel Juvenile Group, Inc.

Eighth Circuit: United States v. Torris Boyd

Sentencing

No error in denial of crack/cocaine resentencing because of rules infractions and the nature of the initial offenses.

United States  v.  Torris Boyd

Eighth Circuit: Stuart Day v. Celadon Trucking Services, Inc

Employment, Class Actions

Sale of business under an asset pruchase agreement does not bar a finding that the business is a going concern for purposes of the WARN Act.

Sale created a presumption of continued employment.

Movant on motion to de-certify class carried burden of establishing good reason.

Predominance presumptive when the penalty is statutory.

Burden-shifting in damages phase permissible, given purposes of the Act.


Stuart Day  v.  Celadon Trucking Services, Inc

Eighth Circuit: United States v. Warnell Reid

Sentencing

No error in allowing government to add evidence to the record on remand, so long as it was available at the initial sentencing.

No error in court's, for purposes of sentencing, accepting PSR determination that rifle could hold a large magazine, so long as the determination doesn't establish an element of the offense itself.

Sentence received while in prison counted for a freestanding sentence for purposes of subsequent sentence.

Sufficient evidence for enhancements, substantively reasonable.




United States  v.  Warnell Reid

Eighth Circuit: United States v. Walter Combs

Crim, Entrapment

Presenting opportunity to rob a drug operation was insufficient entrapment under Due Process, no entrapment instruction justified for the narcotics crime, given eagerness to do the job.


United States  v.  Walter Combs

Third Circuit: Jane Doe v. Alan Hesketh

FRCP, Statutory Construction, Estoppel

Dismissal of claim without prejudice for lack of personal jurisdiction is appealable under the general appeals statute is appropriate where the plaintiff proceeds to file in other jurisdictions rather than amend the claim.

Statute allows recovery against violation of a predicate statute, even where full recovery has been made on a claim based in the predicate statute.

Victim is not in sufficient privity with government to estop a subsequent claim for damages based on an earlier restitution proceeding.



 Jane Doe v. Alan Hesketh

First Circuit: Pacific Indemnity Company v. Deming

Contracts, Property (a bit)

Under state law, a condo rule requiring purchase of insurance with a waiver of subrogation does not effectuate the waiver where the purchased policy merely permits an ex ante waiver of subrogation against a specific claim.


Pacific Indemnity Company v. Deming

First Circuit: Hoover, III v. Harrington

Bankruptcy

Sufficient notice of conversion proceedings where the proceedings are adjourned, and the court informs the participants that the matter is turning to conversion.

Speculative testimony as to future income does not bar a finding of no reasonable likelihood of rehabilitation.

Where little or nothing can be raised from the liquidation of the estate, the claim must be riaed in the proceeding -- otherwise waived.


Hoover, III v. Harrington

First Circuit: Young v. Wells Fargo Bank, N.A.

Contracts


Breach claim not properly raised, since appeal doesn't contest waiver of damages.

On consumer protection statute claim, demand letter sent to one lender cannot be applied to both, and the claims raised by the letter do not rise above negligence.  Economic injury not established.


Young v. Wells Fargo Bank, N.A.

First Circuit: Thomas v. Lynch

Immigration, Administrative, Statutory Construction

Statute requires that the minor have taken an affirmative act to begin lawful residency after the naturalization of the parent.


Thomas v. Lynch