Seventh Circuit: Frances Rogers v. CIR

 

Innocent Spouse relief unavailable when the spouse in question is represented by counsel in a formal proceeding (even if that counsel is their spouse), attends the entire proceeding, and is highly educated.

When assessing standard of living when determining if the spouse had a duty to inquire about the questionable tax filings, the relevant consideration is whether there was a substantial increase in the standard of living, not whether it was generally high.

A legally sophisticated party's affidavit claiming that there was no conflict in being represented by their spouse in a tax case involving a jointly filed return waives a subsequent right to a new trial based on evidence that their counsel allegedly didn't call witnesses that would support the legally sophisticated party's claim to Innocent Spouse relief.

https://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D08-17/C:20-2789:J:Scudder:aut:T:fnOp:N:2748862:S:0

Seventh Circuit: UFT Commercial Finance, LLC v. Richard Fisher

 

Even with the assumption that the company's attorney was their own client when drafting the agreements, since the complaint doesn't state the necessary proximate cause and damages, the malpractice allegation doesn't state a claim.

Arbitrator's ruling on the inherent illegality of the attorney's conduct applies to the consideration of proximate cause, since, under the statute, if the conduct isn't inherently illegal, the plaintiff must establish that without the advice, the risk would not have been taken.

UFT Commercial Finance, LLC v. Richard Fisher

Sixth Circuit: United States v. Vladimir Manso-Zamora

 

There is no constitutional or statutory right to counsel in collateral statutory discretionary release proceedings.  Counsel engaged for proceedings in which the right to counsel attaches do not need to file an Anders brief before subsequently withdrawing from the representation.

United States v. Vladimir Manso-Zamora

Third Circuit: Desmond Conboy v. SBA

 

As the appellant's brief was largely cut and pasted from a trial court filing,  appellee awarded damages under the Rules.  Award against client, but counsel ordered to pay.

Sanctions for making a frivolous argument at the District Court do not preclude sanctions for filing the same arguments on appeal.  Response to appellate sanctions motion needed to be more than a cut and paste from the trial level sanctions filing.

Desmond Conboy v. SBA

Second Circuit: Joseph Watley, Karin Hasemann v. Department of Children and Families

 

Forging of clients' signatures on immigration petitions without the knowledge of the clients constitutes sufficient unauthorized use of their personal information under the aggravated identity theft statute.

Material falsity of the filing is sufficiently independent from the use of the forged signature to justify the independent sentencing increase.

Sufficient evidence for the relevant hundred-document threshold by a preponderance where it was established that 100 basically identical petitions of factual clams were filed.

CONCURRENCE:

While lawful, the indictment's additional charge of identity theft was possibly an unfair use of prosecutorial discretion.

Joseph Watley, Karin Hasemann v. Department of Children and Families

Eleventh Circuit: PDVSA US Litigation Trust v. Lukoil Pan Americas, LLC, et al

 

Assume without deciding that the District Court erred in holding that the document was not sufficiently authenticated in liminal proceedings because three of the signatures were not authenticated.

Foreign state's law treats champerty as an affirmative defense to formation; since the champerty claim implicated the merits determination, summary judgment standard would likely be appropriate, even in the context of a motion to dismiss.  

Appeal of champerty finding that doesn't mention the procedural posture of the determination below forfeits any challenge to the standard of review.  

Since the litigation trust created by the injured party as both grantor and beneficiary and to which the claim was assigned in an exchange for value would retain a fixed percentage of any recovery, the agreement was void for champerty under the state's law, and the litigation trust therefore did not have sufficient Article III standing.

PDVSA US Litigation Trust v. Lukoil Pan Americas, LLC, et al

Seventh Circuit: Ademus Saechao v. Cheryl Eplett

 

Federal collateral review can look past individual state court opinion to determine if the state judicial proceedings were consistent with the federal standard.

Judge's disqualification of criminal counsel unknowingly appointed to defend another defendant charged for the same occurrence, given deft's refusal to waive conflicts was a reasonable application of the Supreme Court's caselaw requiring a serious risk of conflict.  The subsequent appearance of the other defendant on the trial's witness list was independently sufficient, regardless of the probability that the witness would actually be called.

Ademus Saechao v. Cheryl Eplett

Second Circuit: Int’l Techs. Mktg., Inc. v. Verint Sys., Ltd.

 

When imposing sanctions under the courts inherent powers, the court must first consider not the actual disruptive effect in the proceedings, but the intent of the offending party; a single filing offers sufficient grounds for sanctions.

Int’l Techs. Mktg., Inc. v. Verint Sys., Ltd.

Fifth Circuit: Williams, et al v. Lockheed Martin

 

Federal officer removal was appropriate, because at the time of removal, there was a colorable claim that the government was specific and complete, the contractor could not deviate from it, and it was implemented under the direct supervision of the government, and the government had more comprehensive knowledge of the risk at issue than did the contractor.

Challenges to discovery orders must identify the crucial evidence that would otherwise have been obtained.

As the expert testimony claiming exposure to the substance prior to the enactment of the statutory exclusive remedy was derived from factual assumptions rather than actual evidence, the statute provides the sole remedy.

Communication with an employee of a represented corporate party whose statements might be imputed to the corporate party wasn't an abuse of discretion, but as fee-shifting isn't in the state's rules, imposing a monetary sanction would require a finding of either bad faith or willful disobedience of a court's order.

Williams, et al v. Lockheed Martin

Seventh Circuit: USA v. Earl R. Orr

 

Warrant affidavit that didn't include any actual statements of the confidential informant was sufficiently backed by information from investigation, and the good faith exception would save in in any event.

Discretionary rulings during the cross of the deft -- opening the door to evidence of contraband and past convictions -- justify retrial given prior finding of improper ex parte communications between the prosecutor and the judge.

USA v. Earl R. Orr

Fifth Circuit: Sealed Appellee v. Sealed Appellant

Deft waived right to non-conflicted counsel when accepting that counsel had a conflict while fully aware that, additionally, counsel was a potential co-defendant in the present action.

http://www.ca5.uscourts.gov/opinions/pub/17/17-50487-CV0.pdf

Second Circuit: Lucia Lopez Catzin v. Thank You & Good Luck Corp.

Dismissing a long-running action sua sponte due to the fact that only supplemental jurisdiction remains requires, for reasons of basic fairness and reliable decisionmaking,  that the parties receive notice and an opportunity to be heard. 

Court's assertion that the federal claims had been pretextually asserted in order to manufacture jurisdiction required investigation and careful findings.

If the court has found that the supplemental jurisdiction arises from the same case or controversy, the statute requires a explicit selection of one or more of the enumerated statutory reasons for declining to exercise jurisdiction.

http://www.ca2.uscourts.gov/decisions/isysquery/fdd539eb-5a30-4ce3-97bd-7a4291129ddb/1/doc/17-2497_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/fdd539eb-5a30-4ce3-97bd-7a4291129ddb/1/hilite/

Second Circuit: Huebner, et al. v. Midland Credit Mgmt., et al.

So long as the questions are not misleading or abusive, the Act permits a spoken inquiry as to the reason for disputing a debt.

Given the specificity of the first claim in the trial management phase, court did not abuse discretion for imposing procedural sanctions when it proved false.

No abuse of discretion in, prior to imposing sanction, not allowing amendment of filing that violated confidentiality order.

Sanctions for vexatious litigation did not abuse discretion; ordering payment of opponent's fees for motion that was only partially granted was within the court's discretion.

Sanctions under the Act and the court's inherent authority were appropriate.

http://www.ca2.uscourts.gov/decisions/isysquery/2ecf3400-1de9-443e-a981-66684e3b642f/1/doc/16-2363_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2ecf3400-1de9-443e-a981-66684e3b642f/1/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/

DC Circuit: FTC v. Boehringer Ingelheim Pharmace

Communication of business facts between employees and in-house counsel are subject to privilege where a significant provision of the communication is to obtain or provide legal advice; underlying data, however, is not protected with the communications.

https://www.cadc.uscourts.gov/internet/opinions.nsf/A81BAEEA3D756416852582B100518ADF/$file/16-5356.pdf

Seventh Circuit: Kevin Carmody v. Board of Trustees of the University of Illinois

If a university official provides incorrect information to investigators, it doesn't, standing alone, present a due process issue for trial, as it doesn't affect the notice and fair hearing protections of due process.

University administrators and officers who would have no reason to doubt the proceeding are not liable for a pre-firing due process claim.

Absent specific waiver, claims against the Board of Trustees of a state university are barred by the state's sovereign immunity.

Denial of summary judgment cannot be challenged on appeal, as the matter of law was fact-bound, and the questions went to trial.

Defts did not waive privilege on inadvertently disclosed document, as production was reasonably diligent, and request for claw-back was timely.

Although plaintiff had no obligation to renew objection to in limine ruling excluding certain evidence, there was insufficient proffer beforehand to preserve the issue for appeal.  ("Deft construes?")

Although appeal was converted to interlocutory status on remand, and the court was therefore free to consider new documents, where these challenged the appellate holding, they needed to surmount the law of the case doctrine and the mandate doctrine.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-19/C:16-1335:J:Hamilton:aut:T:fnOp:N:2172829:S:0

 

Seventh Circuit: Bennie Kennedy v. Schneider Electric

Impeachment evidence against claims of opposing witnesses did not rise to the clear and convincing level of deliberate perjury required for fraud on the court; they should have been raised on direct appeal or in a post-judgment motion.

Rule 11 sanctions upheld, as delay in filing couldn't be ascribed to a reluctance to assert such a thing against opposing counsel.

Motion for appellate sanctions needs to be raised in a separate motion; they can't just be mentioned in the briefing.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-19/C:17-1786:J:Hamilton:aut:T:fnOp:N:2173108:S:0

Havensight Capital LLC v. Nike Inc.

Appeal of Rule 11 sanctions and dismissal of amended complaint does not not incorporate appeal of post-judgment sanctions orders.

Pending post-judgment motion that can be construed as a challenge to the decision on the merits, when filed before entry of judgment, does not toll the time limit for appeals.

Numerous and voluminous motions justified Rule 11 sanctions.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/07/15-56607.pdf

Ninth Circuit: Ellis v. Harrison

State court's holding that Habeas petitioner must establish prejudice from his counsel's racial animus by a preponderance was an unreasonable application of federal constitutional law.

To establish prejudice from counsel's racial animus, petitioner must establish either his or her knowledge of the animus at a critical phase of the proceedings, resulting in a communications breakdown, or another adverse effect of the animus.

Concurrence to per curiam: prejudice should be the presumption in strategic decisions once animus is established.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/07/16-56188.pdf

Fifth Circuit: In re Rosendo Rodruiguez

Rule 11 show-cause ruling on untimely capital Habeas filing.

Petitioner should have rebutted affidavit timely offered by the state.  No sanctions.

http://www.ca5.uscourts.gov/opinions/pub/18/18-10337-CV0.pdf