Eleventh Circuit: Joan Simring v. GreenSky, LLC

 District court remand to state court under the local controversy exception to the class action statute is reviewable despite the ouster clause of the statute, since the remand is neither for a lack of subject matter jurisdiction nor due to a procedural defect.  The appeal didn't require an authorization of permissive appeal, as the remand order is sufficiently final.

Despite the stipulated limit to the damages by the lead plaintiff, the deft's estimate of relief across the class prevails, since the lead plaintiff has no authority to bind the relief granted the class; the relief therefore exceeds the limit for the local controversy exception.

For purposes of determining residency of class members, only the explicit definition of the class can limit the class to a certain state, and the plaintiff has the burden of establishing the required fraction of in-state class members.

Joan Simring v. GreenSky, LLC

Eleventh Circuit: Southern Coal Corporation, et al v. Drummond Coal Sales, Inc.

 District court properly considered industry usage in determining whether a certain term was ambiguous, ultimately basing its judgment upon finding both the specific referent and the industry benchmark to be reasonable readings.

Agreement not susceptible of reformation, since the claimed error was the mutual mistake of sophisticated parties, so there's no basis for saying that the present agreement doesn't reflect the original intentions of the agreement.

District court abused its discretion in denying fees, as the movant prevailed on their central claim.

Counter-party's refusal to proceed under an industry benchmark once the specific rate-setting mechanism ceased to exist wasn't an anticipatory repudiation, since they were still performing their unaffected obligations under the contract. Since the dispute went to pricing and not the special purpose of the contract, neither was it a material breach of the contract.

CONCURRING IN PART, CONCURRING IN THE JUDGMENT:

The question on fees isn't whether a party was a prevailing party, but whether, under the contract, a party was a defaulting party.

Southern Coal Corporation, et al v. Drummond Coal Sales, Inc.

Ninth Circuit: USA v. Volodymyr Kvashuk

 Proof that an IP associated with the house was used to access relevant email and crypto-coin sites, combined with affidavit statement that financial and personal records are often kept at the home, was sufficient probable cause for a search of the house in an online fraud investigation.  The fact that the fraudulent transactions were committed before moving there isn't dispositive of whether there was likely to be evidence at the house.

A 15-20 month gap between the thefts and the affidavit didn't make the affidavit claims stale, given the nature of computer memory.

Discrepancy in URL TLD on the warrant affidavit was inconsequential.

Personally issued website development test accounts sufficiently identify their authorized users to be the basis for a charge of aggravated identity theft.

Deft's immigration status wasn't critical to establishing a defense for the use of crypto-coin; court did not abuse its discretion in excluding it.

Juror's work with the same large corporate division was insufficient for a claim of implied bias, since the fact patterns at issue in the trial weren't similar to the events of their employment.

USA v. Volodymyr Kvashuk

Eighth Circuit: Barry Segal v. Metropolitan Council

 Although a violation of the transit agency's regulations might not suffice to establish a claim under the discrimination statute, the violations here presented a genuine issue of material fact for trial.

Barry Segal  v.  Metropolitan Council

Eighth Circuit: Scott Gustafson v. Bi-State Development Agency

 Concession at the motion for judgment on the pleadings that the plaintiff wasn't seeking to enforce a private right of action under the statute judicially estops plaintiff from making such a claim at the motion for summary judgment.

 Frustrating but isolated incidents of inability to access services don't support a discrimination claim under the statute.

Earlier denial of motion to amend the complaint isn't automatically raised in an appeal of subsequent denial of summary judgment.

Scott Gustafson  v.  Bi-State Development Agency

Seventh Circuit: Indigo Old Corp., Inc. v. Thomas Guido

 Since the guarantor's obligation was part of an obligation subordinated to a second debt, the lender can't proceed against the guarantor until the second debt is retired and the subordinated obligation comes due.  Under state law, the fact that the debt was subordinated by a contemporaneous instrument means that the subordination didn't count as a modification of the guaranteed obligation that would trigger the guarantor's obligation.

Indigo Old Corp., Inc. v.   Thomas Guido

Seventh Circuit: Alhadji Bayon v. Marshall Berkebile

 As the facts still in dispute bear on the objective reasonableness of the force used by the police officers to arrest the plaintiff, the appellate court has no jurisdiction over an interlocutory claim arising from a denial of qualified immunity,

Alhadji Bayon v.  Marshall Berkebile

Seventh Circuit: USA v. Darrick Vallodolid

In that the political beliefs expressed about immigration policy and discriminatory law enforcement were not exclusively rooted in the venirepersons' ethnicity, their removal from the pool of jurors wasn't constitutionally impermissible.

Given the small size of the sample, statistical analysis and disparate impact analysis alone is insufficient to establish discriminatory nature of the strikes.

As the eyewitness testimony was riddled with inconsistencies beyond the exculpatory ones, it was for the finder of fact to determine its credibility.

Sufficient evidence to find that the crime was gang-related, even absent formal affiliation with the gang, in that it furthered the activities of the former gang.

Sufficient evidence of the conspiracy to admit the statement of the co-conspirator.  Statement indicating possession of drugs in the house admitted not for the truth of the matter asserted, but to establish that the robbers believed there to be drugs there.

Sufficient evidence for conspiracy, given the customary procedures of the gangs and the defts' involvement with them.  Sufficient circumstantial evidence to establish drug quantities.

Federal RICO proceeding wasn't required to incorporate state predicate offense's procedural requirement of bifurcated penalty phase.

USA v.  Darrick Vallodolid

Fifth Circuit: USA v. Singletary

Given that the deft conspired to supply firearms to drug dealers, the conspiracy among the drug dealers to sell drugs is distinct from the conspiracy to supply them with firearms, and therefore a valid predicate for the increased sentence.

The distinction between these conspiracies also serves to separate the two relevant sentencing factors, so that they're not double-counting the same offense.

USA v. Singletary

Second Circuit: Kakar v. USCIS

 Agency's ruling was arbitrary and capricious in that it didn't explain how petitioner's conduct would have been illegal in the United States, given that there is a genuine and reasonable dispute as to the context of the events, and also as to the affirmative defense of duress.  

(Although petitioner had challenged for lack of substantial evidence, vacated and remanded to agency as arbitrary and capricious.)

Kakar v. USCIS

First Circuit: Williams v. Kawasaki Motors Corp., U.S.A.

 Although the District Court excluded the expert testimony, a precise reading of the testimony establishes that the plaintiff hasn't met their burden on causation; the question is not if the fractured weld caused the accident, but whether the defect in the weld caused the accident.

Williams v. Kawasaki Motors Corp., U.S.A.

First Circuit: Puerto Rico Farm Credit, ACA v. Eco-Parque del Tanama Corp.

Statute requires that the lender attempt a restructuring of the loan obligations only where the restructuring ultimately proves less costly than foreclosure; borrower's inability to demonstrate means for a satisfactory repayment removed the requirement.

Under the statute, a lender must consider the restructuring plan's credibility and viability, and need not accept a plan that the counterparty can't perform.

Putting forward a credible plan for restructuring is a threshold requirement for challenging the lender's estimated foreclosure costs.

Puerto Rico Farm Credit, ACA v. Eco-Parque del Tanama Corp.

Federal Circuit: Veteran Warriors v. Secretary of Veterans Affairs

 Statutory term is sufficiently vague to justify deference to the agency, as it is silent as to whether certain services need to be delivered in person, as opposed to being provided remotely.  Parallel statute distinguishing the two speaks to the ambiguity of the first statute.  

Agency's position is justified by the need for a clear rule, and is a reasonable policy choice; prior silence on the question doesn't establish that this is a reversal by the agency.  

Although the statutory context clarifies the definition of "serious injury," the statute is still sufficiently ambiguous to require deference to the agency.

Although the agency's new definition was a change from prior interpretations, it was a reasoned change that accounted for settled expectations, and not the sort of sharp break with previous readings that would justify less deference to the agency's final interpretation.

Statute defining incapacity as being unable to accomplish certain daily tasks is sufficiently vague to justify deference to the agency's reading, since it doesn't distinguish occasional incapacity from total incapacity.  Prior fee schedule implying a gradation of capacity doesn't make for a change in policy, since it refers to the amount of assistance provided, not the beneficiary's abilities unaided.

Agency erred in imposing a single definition of "in need of supervision" where the law describes two degrees of necessary supervision; additionally, the medical requirements read into the term are not logically dictated by the statute's mandate.

Law's requirement that the compensation levels be tied to geographic areas and creation of a program for assisting veterans abroad did not define the eligibility of extraterritorial caregivers; the agency's interpretation barring such caregivers is reasonable.

Agency's tying of caregiver compensation to federal civil service pay levels was a reasonable one; nothing in the act required that the compensation be linked to private sector salaries.

Agency's definition of the inability to sustain life in the community was a reasonable one; it incorporated the statutory factors.

Veteran Warriors v. Secretary of Veterans Affairs

DC Circuit: Jane Doe v. SEC

 Although the list of examples in the statute isn't explicitly an exclusive one, deference to the authoritative, considered interpretation of the agency within its competency asserting the exclusivity of the list is warranted.  Expressio unius would require an exclusive list.  

CONCURRENCE:

When a statute lists three means for accomplishing something, there are three means of accomplishing something under the statute.  Expressio unius applies.

Jane Doe v. SEC

DC Circuit: USA v. Nizar Trabelsi

 Pretrial orders denying a double jeopardy claim arising from the circumstances of extradition are sufficiently final for the purposes of appeal.

By the terms of the treaty and the act of state doctrine, the courts should primarily defer to the actions of the foreign executive rather than the actions of the foreign judiciary.

Foreign court's determination of the limits of the foreign executive's power under the order did not interpret the executive's decision or say that he was compelled to follow the instructions of the order.

Foreign executive's transmission of letter outlining terms of the extradition was not an act of state where the transmission of the letter was mandated by the foreign judiciary, and the letter notes that it is not necessarily the position of the foreign state.

CONCURRENCE:

A private right arising from a treaty can be forfeited when not timely raised.

CONCURRENCE:

Although the plain text of the treaty imposes no double jeopardy obligations on the extraditing state, an earlier holding in the case established that it imposed reciprocal obligations as to its principles; making this determination should have been the first consideration, as it implicates US separation of powers, with the courts constrained from reading general principles of international law into the terms of a treaty.

USA v. Nizar Trabelsi

Ninth Circuit: Craig Ross v. Ronald Davis

 Felony murder constitutional challenge to sentence was appropriately exhausted in state habeas, since despite the state habeas holding to the contrary, petitioner's filings on direct appeal discussed the relevant standard and sought relief.

State jury instructions on aiding and abetting didn't preclude the subsequent capital sentence, because although they didn't require the specific intent necessary under federal law, the separate finding of special circumstances established the necessary intent.

Petitioner had sufficient involvement in the crimes and evinced sufficient reckless disregard of the risk of death.

State court's determinations on ineffective assistance of counsel were not contrary to or an unreasonable application of the federal standard; defense counsel's limited investigation of mitigation evidence wasn't dispositive, as it related entirely to early childhood, and defense closing contained many mitigating inferences from the evidence; the latter are appropriately considered in a Strickland claim.

Craig Ross v. Ronald Davis

Ninth Circuit: Laidlaw's Harley Davidson Sales v. Commisioner

Law requiring initial determination of tax assessment to be approved by a supervisor prior to enforcement of the penalty doesn't preclude pre-approval notice to the taxpayer that the government will enforce the penalty; the supervisor's approval must occur before the actual enforcement, but sufficiently in advance that the supervisor still has the discretion to withhold approval.

DISSENT:

By the plain language, the initial determination must be approved before it becomes the basis for agency action.

Laidlaw's Harley Davidson Sales v. Commisioner

Fifth Circuit: La Union del Pueblo Entero v. Harris Cty Repub.

 As the motion was timely and the impaired interest might not be sufficiently protected by the state's defense of the law, partisan political committees had a right to intervene in litigation challenging an election reform law.

La Union del Pueblo Entero v. Harris Cty Repub.

First Circuit: OK Resorts of Puerto Rico, Inc. v. Charles Taylor Consulting Mexico, S.A. de C.V.

 Court did not abuse its discretion in granting a motion to dismiss well after the scheduled close of discovery, given the absence of supplementary filings from the non-movant.  

OK Resorts of Puerto Rico, Inc. v. Charles Taylor Consulting Mexico, S.A. de C.V.

First Circuit: US v. Agramonte-Quezada

 Absent a showing of bad faith or prejudice, discovery delay in producing dog training records and logs did not require the trial judge to grant a continuance, as there were other discovery materials that might have opened the door to a challenging of the canine evidence.

Evidence of a prior canine indication was more probative than prejudicial, since the switching of vehicles in the interval and the deft's awareness of the narcotics traffic spoke to a continuing plan or scheme and rebutted the claim that he had been an unwitting courier.

Law enforcement testimony as to the usual trafficking operation wasn't impermissible overview testimony, as it came at the end of the trial, the witness was insulated from the particular case, and didn't reference any particulars.  Lay testimony of this nature gleaned from on-the-job experience is helpful to the finder of fact, and therefore permissible.

Court did not abuse its discretion in proceeding to sentencing rather than considering competency; the determination had been made earlier,and nothing in the colloquy prior to sentencing indicated sufficient incapacity. 

US v. Agramonte-Quezada

First Circuit: Cushing v. Packard

For claims arising from either of the federal statutes at issue, a suit against an officer of a state legislature in their official capacity, and in which the state is not named in the action, is against the legislator personally in their legislative capacity and doesn't implicate state sovereign immunity.

If Congress can abrogate conduct-based legislative immunity, as opposed to status-based sovereign immunity, a clear statement to that effect in the law is required.

State legislature did not waive its officers' legislative immunity from disability related discrimination  claims by accepting federal funds for the legislative session costs pursuant to a federal statute with an antidiscrimination clause.

Legislative immunity bars a suit against a state officer where the injunctive remedy would effect a change in the rules that was more than merely casually or incidentally related to legislative affairs.

Legislative immunity under the Speech and Debate clause can't be limited by the state's adoption of a less expansive standard in its own law.

Extraordinary exceptions to legislative immunity aren't available, since, among other reasons, the legislature was following independent procedural rules, rather than changing them.

DISSENT:

Purpose of the immunity is to prevent the disenfranchisement of the people.  Effective ouster and disenfranchisement of some can't therefore be immunized in the interests of protecting others. Only immunizing conduct that isn't facially discriminatory opens the door to facially neutral but discriminatory rulemaking.

Cushing v. Packard

Patent Cases in the Federal Circuit

 Sometimes I take a swing at these, but the time is running short today.

https://cafc.uscourts.gov/opinions-orders/20-2163.OPINION.3-24-2022_1926100.pdf

https://cafc.uscourts.gov/opinions-orders/21-1725.OPINION.3-24-2022_1926111.pdf

-CB

Eleventh Circuit: Fuad Fares Fuad Said v. U.S. Attorney General

 Given the plain language of the proscription, and the fact that the wider prohibition encompasses actual (as opposed to hypothetical) substances, the state crime isn't a valid immigration predicate, as the divergence is significant enough to constitute, as a matter of law, a reasonable probability of prosecution under the state law for acts that would exceed the reach of the federal law.

Fuad Fares Fuad Said v. U.S. Attorney General

Eleventh Circuit: John Doe v. Samford University, et al.

Errors in university investigation could be attributed to ineptitude, inexperience, and pro-complainant bias, and therefore don't raise a plausible inference sufficient to state a claim of discrimination on the basis of gender.

CONCURRENCE:

When resolving a motion to dismiss, a court must draw reasonable inferences in favor of the non-movant.

John Doe v. Samford University, et al.

Ninth Circuit: Estate of Clemente N. Aguirre v. County of Riverside

Issue of qualified immunity for a police officer is for trial, since the use of deadly force against an armed individual in a volatile situation is unconstitutional absent proof of threat to others.

Estate of Clemente N. Aguirre v. County of Riverside

Ninth Circuit: USA v. Edwin Mendez

Given the statutory right not to be tried as an adult for crimes committed as a juvenile, denial of the dismissal of a post-majority superseding indictment charging the deft with a different set of crimes is sufficiently final to be the basis of an interlocutory appeal.

Deft's post-majority acts of conspiracy ratified their juvenile acts, enabling them to be charged as an adult, despite the fact that the acts had already been the subject of juvenile proceedings.  The ratification both removed the statutory protections against the transfer to adult proceedings and converted the pre-majority conspiracy to a crime rather than an act of delinquency.

USA v. Edwin Mendez

Eighth Circuit: United States v. Gary Smith

 Discussion of rehabilitative treatment duration during sentencing doesn't justify an inference that the sentence was increased for that purpose, since other factors were recited at sentencing.

Sentence not substantively unreasonable given incorrigible behavior.

United States  v.  Gary Smith

Eighth Circuit: Colby Beal v. Outfield Brew House

 Telephonic communications device that stores a predefined list of numbers and then randomly or in a defined manner selects and dials certain numbers doesn't come within the statutory proscription of random dialing machines.

CONCURRENCE IN PART:

Footnote that recites Supreme Court GVR's and denials of certiorari is error, as they're not precedential.

Colby Beal  v.  Outfield Brew House

Seventh Circuit: K.F.C. v. Snap Inc.

 As, under state law, the voidable aspect of an infant's contract is a defense against performance, not a bar to formation, the arbitration waiver within the contract is therefore valid, and questions of whether enforcement would be against public policy is within the scope of arbitration.

 K.F.C. v.   Snap Inc.

Seventh Circuit: USA v. Arthur Robinson

 Since the state statute prohibiting the discharge of a firearm towards persons, occupied structures, and occupied vehicles requires a higher mens rea than recklessness, its status as a sentencing predicate wasn't changed by a Supreme Court holding that recklessness was an insufficient basis for a conviction involving the threatened or actual use of force against another person.

Issue was forfeited, not waived, when not raised on first appeal.

USA v.   Arthur Robinson

Seventh Circuit: Gorss Motels, Inc. v. Brigadoon Fitness Inc.

 Court did not err in denying certification of a class based on a statutory claim of sending unsolicited facsimile advertisements; although the unsolicited nature of the communications is an affirmative defense to be established by the defendant, the predominance inquiry looks to the actual management of the claim, and certification risked a multiplicity of mini-trials on the issue.

Court's handling of the implied consent issue was appropriate to the certification stage, as defendant's claim wan't speculative, vague, or unsupported.

Consent provided to third parties isn't considered transferred consent where the original consent included messages from affiliates and vendors.

Gorss Motels, Inc. v.  Brigadoon Fitness Inc.

Sixth Circuit: Bretton Westmoreland v. Butler Cnty.

For pretrial detainees, a Fourteenth Amendment deliberate indifference claim requires something like objective reckless indifference rather than the subjective possession of sufficient knowledge to infer a risk of harm.

DISSENT:

Circuit precedent compels a subjective element; civil law negligence standard is categorically beneath the threshold of a constitutional due process claim; requiring an intentional action begs the question of sufficient knowledge; these facts would satisfy even the majority's novel test.

Bretton Westmoreland v. Butler Cnty.

Fifth Circuit: USA v. Henderson

 Supervised release condition delegating to the parole officer the discretion to determine in which cases a certain condition applied wasn't plain error.

USA v. Henderson

Fifth Circuit: Woods v. Cantrell

 A single use of a racial epithet in the workplace can state a claim under Title VII.

Woods v. Cantrell

Fifth Circuit: Trafigura Trading v. USA

 As the fees assessed on the exported oil don't accrue any benefit to the exporters, but are rather directed to things generally useful to society, the assessment is an unconstitutional tax, rather than a permissible user fee.

DISSENT:

There are issues for trial, since the assessments aren't tied to the value of each barrel, and there is no explicit requirement in the precedent that the exporter be the sole beneficiary of the fees assessed.

Trafigura Trading v. USA

Fifth Circuit: USA v. Mesquias

 Where testimony objectively establishes fraudulent medical billing practices, there is no categorical requirement to establish actual falsity of diagnosis in particular cases.

When appealing a denial of a chance to speak at sentencing, the appellant must cite a basis for reversal or remand, or make a proffer of evidence that would have been offered.

Sufficient evidence of pervasive fraud to shift the burden of proof on the calculation of damages.

USA v. Mesquias

First Circuit: St. Paul's Foundation v. Ives

 Monastery's Free Exercise rights were not impermissibly burdened by regulation of building construction; in seeking to reinstate the earlier approval while recharacterizing the use of the space in a manner that would eventually require the installation of additional facilities, enough doubt was cast on the legitimacy of the reinstatement that there is no issue for trial as to whether the withholding of reinstatement was arbitrary and capricious.

St. Paul's Foundation v. Ives

First Circuit: Valentin-Marrero v. Commonwealth of Puerto Rico

 As the relief sought exceeds the bounds of the earlier favorable ruling by the ALJ, plaintiff was required to exhaust administrative remedies prior to seeking judicial relief for alleged noncompliance with the earlier ruling.

Valentin-Marrero v. Commonwealth of Puerto Rico

Ninth Circuit: Weston Family Partnership LLLP v. Twitter, Inc.

 Although the appeal was untimely since the district court had dismissed with leave to amend, the subsequent final order in the case cured the defect.

Absent earlier specific or unqualified statements about the ongoing project, the company had no duty to disclose the setbacks to investors.

Usual timeline between discovery of bug and disclosure of repair insufficient to establish that the company's statements on the matter were false.  Forward-looking statements would in any event be subject to the safe-harbor, as they were appropriately qualified.

Control-person liability is derivative of the claim against the company; these facts are insufficient to support such a claim.

Weston Family Partnership LLLP v. Twitter, Inc.

Sixth Circuit: Laborers' Int'l Union of N.A. v. Terease Neff

 The court whose employees have joined a union is a state, not county, entity for purposes of sovereign immunity, given its constitutional and statutory designation within the state.  The fact that the state has mandated that the county fund the operations of the court and that the county has discretion in setting the salary levels of the employees supports this, as the mandate is from the state.  As the elected state judge exercises ultimate authority in discharging and retaining employees and sets salaries in the first instance, the employment functions of the court are a state matter.  

The Contracts Clause is an insufficient basis for S1983 claims.  

A Takings Clause injunction would require that there was no remedy sounding in contract; mere breach of contract doesn't state a claim for damages under the Clause.  

CBA term in preamble holding that it remains in force until union is decertified or another agreement is reached insufficient to defeat as a matter of law a specific end date in the terms.

Laborers' Int'l Union of N.A. v. Terease Neff

Sixth Circuit: Frank Fisher v. Michelle Perron

Where a state intermediate appellate holding gives a statute a certain construction, the reading is determinative for a federal court attempting to ascertain the views of the state courts, absent persuasive data to the contrary.

State tort of disclosure of private information requires disclosures to be materially highly offensive.

Wiretap Act exemption to one-party consent requires that the interception or recording be for the purpose of committing a crime or tort; facts here insufficient to establish that.

Frank Fisher v. Michelle Perron

Fifth Circuit: Arnone v. County of Dallas

 A prosecutor elected within a county and acting within a county is, however, a state officer as opposed to a county officer when deciding questions of or setting policy relevant to the revocation of deferred adjudication in individual cases.  

Arnone v. County of Dallas

Fifth Circuit: Vitol v. USA

When a fuel is correctly categorized as taxable under the statute, it is ineligible also to be categorized as an alternative fuel, since the latter statute excludes fuels encompassed by the definition of taxable fuels.  The statutory scheme is clear enough to defeat a plain meaning argument to the contrary.  Any partial categorization of a blend as partially alternative would require a clear statement in the statute.

DISSENT:

The provision making the two categories mutually exclusive is in the excise tax portion of the Code, so the tax credit language in another area isn't bound by it, given plain meaning to the contrary.  The excise provisions define the wide swath of the tax categories, and the credit provisions define particular instances.  Ordinary meaning is the Star of Bethlehem.

Vitol v. USA

Fourth Circuit: US v. Lenair Moses

SUPPORTING DENIAL OF EN BANC:

 The question of whether a Supreme Court precedent has been overruled requires a clear statement from the Court.  

A panel decision validating the new standard isn't in irreconcilable conflict with a contemporaneous (yet subsequent) panel holding that the earlier (conflicting) precedent still controls to a degree.

DISSENTING FROM DENIAL OF EN BANC; VOTING FOR EN BANC:

First panel holding controls; this risks stoking confusion.

VOTING FOR EN BANC:

If the statements in the subsequent holding were dicta, the court would have said that clearly; public and Congressional confusion over the state of the circuit law on the question.

US v. Lenair Moses

Fourth Circuit: Evens Julmice v. Merrick Garland

 Silence of the immigration statute as to whether the citizen whose child is seeking to immigrate needs to be alive at the time of application isn't sufficient to justify deference to the agency's interpretation imposing the requirement.

Evens Julmice v. Merrick Garland

Second Circuit: Washington v. Napolitano

 

Police officers swearing to arrest warrant affidavit and effecting arrest were not performing functions closely tied to the judicial process in allegedly acting at the prosecutor's explicit instructions; a prosecutor providing testimony in support of a warrant would similarly not be shielded by absolute prosecutorial immunity.

Omission from affidavit testimony of factual details critical to the authorizing magistrate's assessment creates an issue for trial as to whether the totality of the omissions were material.

DISSENT: 

Arguable probable cause; officers' subjective belief in innocence would be immaterial.

Washington v. Napolitano

Second Circuit: JN Contemporary Art LLC v. Phillips Auctioneers LLC

 Force majeure clause could be invoked to cancel the contract; there was no obligation to reschedule or change the manner of performance.

The catch-all term of the force majeure clause justified the cancellation, even under strict construction; eusdem generis reading of the enumerated grounds implies that any societal disruption not due to fault or negligence and beyond the parties' control qualified.

Discretionary postponement of performance according to state advisory guidance was a de minimis breach, if at all, since by the time of scheduled performance, the state had issued compulsory guidance.

Absent explicit language of condition, courts can't look beyond integrated agreements to infer that one is conditional upon performance of the other.

Violation of the covenant of good faith and fair dealing doesn't state a claim where it is based on the same theory and facts as the breach claim.

JN Contemporary Art LLC v. Phillips Auctioneers LLC