Although two of the three theories of trade secret misappropriation advanced at trial were legally erroneous, the evidence of the one remaining theory preponderated, and so the verdict can stand, but remanded to determine amount of equitable disgorgement under that theory. As disgorgement was not available as a remedy for IP infringement in 1791, there is no right to demand a jury trial on the question.
Many other small things, and time is short.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/16-2121.Opinion.7-9-2018.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.
DC Circuit: Morley v. CIA
Court did not abuse its discretion in denying award of fees in FOIA action, as court might reasonably have found the agency's actions to be reasonable.
Dissent: Violation of a statute requiring agency to disclose otherwise available documents instead of referring the requester to the alternate source was, by it terms, unreasonable.
https://www.cadc.uscourts.gov/internet/opinions.nsf/FAFBF71409B33B0E852582C50070FE19/$file/17-5114-1739739.pdf
Dissent: Violation of a statute requiring agency to disclose otherwise available documents instead of referring the requester to the alternate source was, by it terms, unreasonable.
https://www.cadc.uscourts.gov/internet/opinions.nsf/FAFBF71409B33B0E852582C50070FE19/$file/17-5114-1739739.pdf
Tenth Circuit: Lamb v. Norwood
Absent case-specific medical findings, a prisoner's assertion of medical necessity of gender transition does not present a genuine issue of deliberate indifference for trial.
Petitioner did no have standing to challenge the preliminary investigative report or to supplement it, as its conclusions could be rebutted in the motions for and against summary judgment.
https://www.ca10.uscourts.gov/opinions/17/17-3171.pdf
Petitioner did no have standing to challenge the preliminary investigative report or to supplement it, as its conclusions could be rebutted in the motions for and against summary judgment.
https://www.ca10.uscourts.gov/opinions/17/17-3171.pdf
Tenth Circuit: United States v. Garcia-Herrera
After entry of judgment, a court has no jurisdiction over a subsequent motion by a deft to compel former counsel to produce files that would aid in his defense.
https://www.ca10.uscourts.gov/opinions/17/17-6209.pdf
https://www.ca10.uscourts.gov/opinions/17/17-6209.pdf
Tenth Circuit: Polukoff v. St. Mark's Hospital
Realtor's claim that a physician was billing the government for unnecessary cardiac surgeries states a claim where the medical opinion that a procedure is reasonable and necessary does not comport with the government's definitions of reasonability and necessity.
Such a claim survives elevated pleading under the rules, as a general state of mind can be alleged.
https://www.ca10.uscourts.gov/opinions/17/17-4014.pdf
Such a claim survives elevated pleading under the rules, as a general state of mind can be alleged.
https://www.ca10.uscourts.gov/opinions/17/17-4014.pdf
Tenth Circuit: Warnick v. Cooley
Absolute prosecutorial immunity shields prosecutors from a S1983 claim arising out of allegedly false charges, despite allegations of related unshielded conduct.
Balance of claims pleaded with insufficient particularity, leave to amend properly denied, as no draft claim was filed, no formal motion to amend was filed, and three years have passed since filing of claim.
https://www.ca10.uscourts.gov/opinions/17/17-4065.pdf
Balance of claims pleaded with insufficient particularity, leave to amend properly denied, as no draft claim was filed, no formal motion to amend was filed, and three years have passed since filing of claim.
https://www.ca10.uscourts.gov/opinions/17/17-4065.pdf
Ninth Circuit: Morris v. Ernst & Young LLP
Per curiam summary affirmance on remand.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/09/13-16599.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/09/13-16599.pdf
Seventh Circuit: Illinois Department of Revenue v. First Community Financial Bank
Bankruptcy court did not err in valuing the state revenue department's lien against post-petition bulk sales by the executor at zero, as the amount is, in practice, subject to negotiation, and a foreclosure would void the interest.
Seventh Circuit: Maurice Wallace v. John Baldwin
Solitary confinement for eleven years, combined with suicidal behavior, presents sufficient showing of imminent danger to allow a prisoner to advance a claim for relief without paying the fees. The "three strikes" assessed under the statute to the contrary are, in fact, only two, due to legal error.
Seventh Circuit: Scott Robinett v. City of Indianapolis
State indemnification statute's requirement that the challenged conduct be within the scope of employment is determined by the final finding of the court, not the allegations in the claim.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-09/C:17-2609:J:Sykes:aut:T:fnOp:N:2183558:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-09/C:17-2609:J:Sykes:aut:T:fnOp:N:2183558:S:0
Seventh Circuit: Anthony Kaminski v. Nancy Berryhill
Treating physician's opinions should have been given greater weight by the agency, since, among other things, the petitioner's statements to the contrary merely evinced his inability to perceive his own injury.
Remand with instructions to calculate award, as all other findings of fact have been made.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-09/C:17-3314:J:Hamilton:aut:T:fnOp:N:2183347:S:0
Remand with instructions to calculate award, as all other findings of fact have been made.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-09/C:17-3314:J:Hamilton:aut:T:fnOp:N:2183347:S:0
Third Circuit: Norman Walsh v. Defenders Inc
Given the deft's direct contractual relationship with a significant part of the Class, its presence in the litigation is sufficient to justify the an element of the CAFA local controversy exception, regardless of whether it will ultimately shoulder responsibility for any judgment.
http://www2.ca3.uscourts.gov/opinarch/182156p.pdf
http://www2.ca3.uscourts.gov/opinarch/182156p.pdf
Third Circuit: Brittan Holland v. Kelly Rosen
Plaintiff's opting out of the bail hearing does not deprive him of standing to challenge the bail law, since the challenge is not to the detention order, but to the lack of constitutionally sufficient procedure.
As the bail-bonding agency has only a hypothetical relationship with future customers, it does not have third-party standing to challenge the law on their behalf.
The Eighth Amendment does not guarantee a fair consideration of potential monetary bail, as that was not the practice at the time of adoption, and the Amendment does not mention monetary bail.
Cash bail and corporate surety are not protected by substantive due process, as they are neither sufficiently historically rooted nor inherent in the concept of ordered liberty. Statute's subordination of monetary bail to non-monetary restrictions is rationally related to a legitimate government purpose.
Where deft is able to ask the court for decreased restriction, sufficient procedural due process in a scheme where non-monetary pretrial appearance guarantees are prioritized over monetary bail.
http://www2.ca3.uscourts.gov/opinarch/173104p.pdf
As the bail-bonding agency has only a hypothetical relationship with future customers, it does not have third-party standing to challenge the law on their behalf.
The Eighth Amendment does not guarantee a fair consideration of potential monetary bail, as that was not the practice at the time of adoption, and the Amendment does not mention monetary bail.
Cash bail and corporate surety are not protected by substantive due process, as they are neither sufficiently historically rooted nor inherent in the concept of ordered liberty. Statute's subordination of monetary bail to non-monetary restrictions is rationally related to a legitimate government purpose.
Where deft is able to ask the court for decreased restriction, sufficient procedural due process in a scheme where non-monetary pretrial appearance guarantees are prioritized over monetary bail.
http://www2.ca3.uscourts.gov/opinarch/173104p.pdf
Second Circuit: Williams v. Annucci
Since the statute contemplates increased costs in compliance, simple assertion of the costs of compliance is an insufficiently particular compelling government interest to justify summary judgment. Government's refusal to accommodate inmate's sincerely held religious beliefs in the provision of meals has not been demonstrated to be the least restrictive means.
http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/1/doc/15-1018_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/1/hilite/
http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/1/doc/15-1018_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/1/hilite/
Second Circuit: United States v. Jimenez
Facial challenge is first analyzed as-applied in the context of a direct appeal of a criminal conviction.
Statute prohibiting the possession of a bullet by a dishonorably-discharged former soldier who was found guilty of felony-equivalent conduct by a military tribunal is substantially related to an important government interest, and would therefore not be barred by the Second Amendment.
http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/2/doc/17-287_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/2/hilite/
Statute prohibiting the possession of a bullet by a dishonorably-discharged former soldier who was found guilty of felony-equivalent conduct by a military tribunal is substantially related to an important government interest, and would therefore not be barred by the Second Amendment.
http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/2/doc/17-287_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/2/hilite/
Second Circuit: Allen v. Credit Suisse Secs. (USA) LLC
Bank foreign currency clearinghouses did not have sufficient control over Plan funds for a fiduciary duty or functional fiduciary duty to arise during arms length transactions that were allegedly fraudulent in their effects and structure.
No abuse of discretion in denial of leave to amend where the prospect of discovering contractual relationships was speculative.
http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/3/doc/16-3327_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/3/hilite/
No abuse of discretion in denial of leave to amend where the prospect of discovering contractual relationships was speculative.
http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/3/doc/16-3327_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/3/hilite/
Second Circuit: Petersen Energía Inversora, S.A.U., et al. v. Argentine Republic, et al.
Foreign corporation's bylaws requiring a tender offer for remaining shares after expropriation by the state were an incidental mechanism to the expropriation, and not the mechanism of the statutory expropriation. Jurisdiction over claim arising from lack of subsequent tender offer is therefore proper under the direct effects exception to FISA.
Continuing government control of the corporation does not divest the court of subject matter jurisdiction, as the question of the enforcement provision of the tender offer requirement is commercial in nature, and has direct effects domestically.
http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/4/doc/16-3303_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/4/hilite/
Continuing government control of the corporation does not divest the court of subject matter jurisdiction, as the question of the enforcement provision of the tender offer requirement is commercial in nature, and has direct effects domestically.
http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/4/doc/16-3303_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/4/hilite/
Second Circuit: Conte v. Emmons
Deft's conduct insufficient as a matter of law to establish tortious interference with contracts, as comments to third parties were not specifically targeted, and any conduct incidental to a lawful purpose cannot be the basis of the claim.
As a matter of law, establishing subsequent breach without a showing of specific causation can't state a claim for tortious interference.
http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/5/doc/17-869_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/5/hilite/
As a matter of law, establishing subsequent breach without a showing of specific causation can't state a claim for tortious interference.
http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/5/doc/17-869_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/5/hilite/
Second Circuit: Kiobel v. Cravath, Swain & Moore, LLP.
District court had jurisdiction over subpoena for communications to US firm from foreign client, as jurisdiction arises from the present location of the documents, viz, midtown.
Court abused its discretion in issuing subpoena in furtherance of a foreign court proceeding for communications with a foreign client previously released under confidentiality order, as the documents would not be available in the foreign forum, and the party requesting them is a party to the foreign litigation. Disclosure would undermine confidence in the confidentiality of attorney-client communications, and there is no guarantee that the foreign forum will protect the confidentiality at the level of the existing agreement.
http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/6/doc/17-424_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/6/hilite/
Court abused its discretion in issuing subpoena in furtherance of a foreign court proceeding for communications with a foreign client previously released under confidentiality order, as the documents would not be available in the foreign forum, and the party requesting them is a party to the foreign litigation. Disclosure would undermine confidence in the confidentiality of attorney-client communications, and there is no guarantee that the foreign forum will protect the confidentiality at the level of the existing agreement.
http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/6/doc/17-424_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/6/hilite/
Second Circuit: USA v. Hernandez
Recklessly or negligently placing oneself in a situation where duress is probable negatives the defense.
Absent a request for special verdict, acquittal for conduct later found by a preponderance and used in sentencing does not imply a theory of the crime that amounts to a vindication of the conduct.
http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/7/doc/16-2765_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/7/hilite/
Absent a request for special verdict, acquittal for conduct later found by a preponderance and used in sentencing does not imply a theory of the crime that amounts to a vindication of the conduct.
http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/7/doc/16-2765_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/7/hilite/
Second Circuit: NG Bank N.V. v. M/V Maritime King
As the the equitable power to modify an existing maritime lien is essential to preventing the abuse of the lien, court did not abuse its discretion in modifying the interest rate on the lien.
http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/8/doc/16-3944_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/8/hilite/
First Circuit: City of Taunton v. EPA
When plaintiff claims extrinsic evidence was the basis for agency action, it is still inappropriate to include extrinsic evidence in the record for review, as the degree of support for the agency decision should be apparent from the record as it stands.
Agency did not act arbitrarily and capriciously in supplementing the administrative record following notice and comment beyond the initial published decision calculus and not subsequently reopening the comment process. Comment periods, by their nature, bring new concerns and raise new points.
Physical access to the relevant documents during the comment period sufficed; plaintiff had no right to receive them in response to a subsequent request.
Agency was justified in using tentative scientific conclusions in the absence of proof to the contrary; causation need not be absolute -- a reasonable possibility of harm is sufficient.
Absent specific proof to the contrary, deference to agency methodology and data selection.
http://media.ca1.uscourts.gov/pdf.opinions/16-2280P-01A.pdf
Agency did not act arbitrarily and capriciously in supplementing the administrative record following notice and comment beyond the initial published decision calculus and not subsequently reopening the comment process. Comment periods, by their nature, bring new concerns and raise new points.
Physical access to the relevant documents during the comment period sufficed; plaintiff had no right to receive them in response to a subsequent request.
Agency was justified in using tentative scientific conclusions in the absence of proof to the contrary; causation need not be absolute -- a reasonable possibility of harm is sufficient.
Absent specific proof to the contrary, deference to agency methodology and data selection.
http://media.ca1.uscourts.gov/pdf.opinions/16-2280P-01A.pdf
First Circuit: US v. Pagan-Romero
Provision and use of a dictionary in deliberations over contemporaneous objection and by a second judge was not an abuse of discretion, as the court polled the jurors afterwards as to whether it was used dispositively, and the relevant intent-level definition was not facially unhelpful to the deft.
http://media.ca1.uscourts.gov/pdf.opinions/16-1396P-01A.pdf
http://media.ca1.uscourts.gov/pdf.opinions/16-1396P-01A.pdf
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