Ninth Circuit: Abraham Bielski v. Coinbase Inc.

 As long as the challenge to the arbitration agreement mentions the delegation provision and makes arguments against it, the threshold requirement of ensuring that the challenge is within statutory limits is met. In evaluating an unconscionability claim under state law, a court must necessarily look to the entirety of the arbitration agreement.

Although the agreement is per se procedurally unconscionable to some degree as a contract of adhesion, the dispute-resolution processes are not unduly surprising. Under state law, a one-sided agreement lacking mutuality of remedy is not inherently substantively unconscionable.  In this case, not overly harsh or one-sided.

CONCURRENCE, CONCURRENCE IN JUDGMENT

The precedent cited to the contrary in other circuits, in which a court looks to the substance of the challenge in the threshold analysis, is not meaningfully distinct from considering whether arguments were made against the provision.

Abraham Bielski v. Coinbase Inc.

Sixth Circuit: Sharon Potter v. Comm'r of Soc. Sec.

 

Denial of class certification that doesn't reach merits but instead is a case managment order associated with a stay pendng a related appeal doesn't end the tolling of statutes of limitation for absent class members, as their reliance on the class remedy and the representatives is still objectively reasonable.  

As the stay put the parties on notice of pending claims and continued reliance by absent class members was reasonable, the continued tolling serves the purpose of the statute of limitaitons and the economy of litigation.

Circuit split with Fourth flagged.

Once an uncertified class action is dismissed, tolling ceases.

Claim for equitable tolling forfeited for not being distinguished from tolling of right claim before the District Court.

https://www.opn.ca6.uscourts.gov/opinions/opinions.php

DC Circuit: Christiana Tah v. Global Witness Publishing, Inc.

 

Although the district has recently clarified that the special motion to dismiss statute imposes a burden equivalent to summary judgment in the federal courts, the statute can't be applied in federal court, because the movant under the statute has no burden to make any showing on the merits and the statute limits the discovery process.

Nothing in the denials by the targets of the investigative reporting constituted readily verifiable evidence needed to support a plausible case that the publisher had a degree of awareness of probable falsity sufficient to establish reckless disregard for the truth.

DISSENT:

Even absent contradictory evidence, a story might be inherently implausible, and a publisher has an affirmative duty to reasonably dispel their own doubts.  First consider the inherent plausibility, then consider counterarguments.

The concession that there was no evidence that the counterparty to the transaction alleged to be the motive for the bribery knew of the payments, and the lack of motive for self-dealing bribery in the bonuses awarded make the story sufficiently inherently improbable.

The facts cited in the denials were sufficient to cast doubt on the story.

Circuit split suggested.

NYT v. Sullivan should be overruled.

Christiana Tah v. Global Witness Publishing, Inc.

Fifth Circuit: USA v. Norbert

 

In assessing the credibility and reliability of the tip of illegal activity in the apartment parking lot, the tipster's familiarity with the physical environs was insufficient validation; as the tip wasn't contemporaneous with an emergency situation, it is held to a higher standard.  The tip was sufficiently specific in its physical description of the suspect. 

Given the lack of corroboration, the police had no reasonable suspicion that the criminal activity was afoot.  The search was conducted after verification of entirely innocent information.

The tip's claim of ongoing drug sales meant that the search at the end of the day wasn't on stale information.

DISSENT:

This means that police must personally witness a crime.

Tipster's assertion of being employed by the apartment complex and subsequent specific description of the details corroborated the information sufficiently for reasonable suspicion.  Would suffice for probable cause under Gates.

Navarette wasn't based on emergency situations, but rather stands for the proposition that a tipster who tells the truth about innocent details will tend to tell the truth when asserting criminality.

Circuit split flagged.

USA v. Norbert

Second Circuit: Linza v. Saul

 

As Congress has explicitly recognized National Guard dual service technicians as civilian employees, a plain reading of the statute suggests that the employment does not fall within the military exception to the benefits limitation statute.

Circuit split flagged.

Linza v. Saul

Fourth Circuit: Colette Wilcox v. Nathan Lyons

 

Generic claim of retaliation actionable as gender discrimination under Title VII does not sound as a cause of action under S1983; Section VII explicitly includes retaliation as an actionable harm, and this would be surplussage if inherent in the right.

Circuit split flagged.

Colette Wilcox v. Nathan Lyons

Second Circuit: Lasher v. United States

 

As the order does not itself finally resolve any question on the merits and the statute provides for a second mechanism, a denial of a certificate of appealability on a motion to set aside the sentence is not a sufficiently final order for purposes of appeal.

Circuit split/tension flagged. 

Lasher v. United States

Ninth Circuit: Linda Larson v. Andrew Saul

Skidmore deference to agency determination that military employment in the civilian sector is not within a SSA exception for wages earned wholly through military service.  Circuit split flagged.

Linda Larson v. Andrew Saul

Third Circuit: USA v. Jamell Birt

As the First Step Act made retroactive the modification of the statutory minimum quantities of prohibited substances, a conviction under the parallel catch-all provision where no minimum quantity is specified was not made subject to retroactive review.   Circuit Split flagged.

[Inaugurating the First Step Act tag -- seems to be a thing of late.  It's the new ACCA, perhaps.]

USA v. Jamell Birt

Seventh Circuit: Janet Kotaska v. Federal Express Corporation

Where an essential qualification for employment specifies a range of weight up to a certain amount, a showing of the genuine issue for trial on the maximum amount does not mean that there isn't a genuine issue of fact about whether the plaintiff's capabilities in the range beneath the maximum amount were insufficient.

A showing of capable engagement in the task for three weeks is insufficient to establish that all essential qualifications were met.

Where an employer unknowingly rehires after a year, the initial termination is sufficient nondiscriminatory reason for a second termination.

Dissent: ADA plaintiffs shouldn't have the burden of production for the essential qualifications for the task.  Circuit split flagged.  Summary judgment inappropriate where plaintiff has dispelled initial defense theory.   Second termination letter actually discussed protected conduct.

Janet Kotaska v.  Federal Express Corporation

Third Circuit: Teamsters Local 177 v. United Parcel Service

Where a party to a statutory arbitration agreement involving prospective equitable relief in which both parties have consented to judicial entry of the award seeks a summary proceeding in federal courts for entry of the award, there is sufficient a case or controversy for constitutional purposes.

Teamsters Local 177 v. United Parcel Service

Second Circuit: United States v. Jones

Pace the Ninth Circuit, the relevant statute's proscription of "false and fictitious" documents includes false versions of legitimate documents, not just novel types of instruments.

United States v. Jones

Third Circuit: USA v. Roy Green

Supreme Court's holding that the residual clause of ACCA was unconstitutionally vague did not announce a new constitutional rule that would justify the appeal of sentences under any compulsory residual sentencing scheme; this is established in part by the subsequent holding of the Court that advisory residual sentencing schemes are not unconstitutionally vague. Circuit split flagged.

http://www2.ca3.uscourts.gov/opinarch/172906p.pdf

Sixth Circuit: United States v. Daniel Sexton

Sentencing bump for commission of crime while under sentence was appropriate by the terms of the guidelines, since deft was on summary probation in contemplation of dismissal following a nolo contendere plea.

Leadership sentencing increase appropriate where deft own corporations engaged in the activity and employs admins; existence of other leaders is immaterial.

Within guidelines sentence substantively reasonable.

Forfeiture appropriate to any assets obtained through the crime; there is no need for the deft to have actually received the assets.  Tension with S.Ct.U.S. holding on a parallel statute, circuit split flagged.

No plain error in court's acceptance of charge-off methodology and costs in the PSR.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0132p-06.pdf

First Circuit: In re: App of George W Schlich

The prudential factors in deciding whether to order discovery for use in a foreign proceeding do not imply that either party has an obligation to establish or rebut any factor; the court did not abuse its discretion when deciding that the marginal relevance of the information sought, while sufficient to establish a prima facie claim under the statute, meant that the foreign court would likely not be receptive to the information.

Circuit split flagged.

http://media.ca1.uscourts.gov/pdf.opinions/17-1377P-01A.pdf

Seventh Circuit: USA v. Aaron Lamon

A weapons-possession count should not be grouped with a drugs count when tallying up the offense level during sentencing, as the weapons-possession charge incurs a statutory minimum term of imprisonment, removing the justification for such grouping.

Circuit split flagged, and doubled down upon.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-19/C:17-2764:J:PerCuriam:aut:T:fnOp:N:2172766:S:0

Second Circuit: Blow v. United States

Habeas, AEDPA, Sentencing, Circuit Split


Permission granted for second/successive federal Habeas petition challenging sentence imposed under residual clause of Sentencing Guidelines, as the language is identical to the ACCA residual clause found unconstitutional.

Circuit split flagged.


Blow v. United States

Eighth Circuit: Domick Nelson v. Midland Credit Management, Inc

FDCPA, Bankruptcy, Circuit Split


FDCPA does not allow for a claim against a time-barred debt filed as a claim against a bankruptcy estate.

Circuit split flagged.



Domick Nelson  v.  Midland Credit Management, Inc

Ninth Circuit: ADAM BROOKS V. CLARK COUNTY

Judicial Immunity, S1983, Circuit Split


Although a court officer's shove was not specifically ordered by the judge and therefore did not enjoy judicial immunity, it did not violate any clearly established constitutional right, and the bailiff therefore enjoys qualified immunity.

Circuit split flagged on the first question.


ADAM BROOKS V. CLARK COUNTY

Second Circuit: Laroe Estates, Inc. v. Town of Chester

FRCP

So long as the relief sought and theory of the case are identical, a propsective intervenor of right in a pending action need not demonstrate separate Article III standing.  It is sufficient that they have a direct, substantial, and legally protectable interest relating to the existing case/controversy.

Circuit split flagged.

 Laroe Estates, Inc. v. Town of Chester