At this hour, the Ninth has posted an opinion and an order appearing to revoke that opinion for redaction. As other cases have been posted since, we'll just link without comment to both the opinion and the order.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/14/15-50450o.pdf
https://cdn.ca9.uscourts.gov/datastore/opinions/2016/01/14/15-50450.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.
Ninth Circuit: USA v. Mark Spengler
White collar, FRE
Deft can challenge exclusion of expert on appeal, even if deft didn't offer any witnesses at trial.
Exclusion of expert under Daubert/6A upheld, as even if investments were ultimately prudent, deft thought his acts fraudulent at the time.
Prosc witnesses' references to deft as fiduciary did not mislead jury.
No error in court not striking count from superseding indictment, despite the improper citation of statute and omission of willfulness element, as willfulness was alleged broadly in the indictment.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/15/14-30042.pdf
Deft can challenge exclusion of expert on appeal, even if deft didn't offer any witnesses at trial.
Exclusion of expert under Daubert/6A upheld, as even if investments were ultimately prudent, deft thought his acts fraudulent at the time.
Prosc witnesses' references to deft as fiduciary did not mislead jury.
No error in court not striking count from superseding indictment, despite the improper citation of statute and omission of willfulness element, as willfulness was alleged broadly in the indictment.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/15/14-30042.pdf
Ninth Circuit: Mike McGee v. China Electric Motor
Securities, Fees
No error in district court's use of lodestar as opposed to percentage of fund, but the lodestar analysis was insufficiently explained.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/15/13-56903.pdf
No error in district court's use of lodestar as opposed to percentage of fund, but the lodestar analysis was insufficiently explained.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/15/13-56903.pdf
Ninth Circuit: Steven Fue v. Marin Biter
Habeas, AEDPA
No error in denial of equitable tolling of AEDPA limit, as petitioner didn't inquire into status of state habeas for fourteen months.
Dissent: State didn't notify, policy reasons against new rule.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/15/12-55307.pdf
No error in denial of equitable tolling of AEDPA limit, as petitioner didn't inquire into status of state habeas for fourteen months.
Dissent: State didn't notify, policy reasons against new rule.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/15/12-55307.pdf
Eighth Circuit: Riceland Foods v. Don Downing
FRCP,
Res judicata effects of partial judgment below made the partial judgment sufficiently final for appeal.
A litigation-specific provision for a subset of parties in a release of claims against a larger group means that litigation-related claims against those not in the subset are not barred as a matter of law.
http://media.ca8.uscourts.gov/opndir/16/01/143758P.pdf
Res judicata effects of partial judgment below made the partial judgment sufficiently final for appeal.
A litigation-specific provision for a subset of parties in a release of claims against a larger group means that litigation-related claims against those not in the subset are not barred as a matter of law.
http://media.ca8.uscourts.gov/opndir/16/01/143758P.pdf
Eighth Circuit: Nicole Walker v. United States
Habeas, retroactive application
Plain error not relevant to collateral attack of conviction.
Case extending Apprendi to mandatory minimums isn't retroactive to cases on collateral appeal, because Apprendi itself isn't retroactive.
No constitutional error in lack of assistance of counsel during Certiorari. No statutory error, as the omission of the issue from the petition wouldn't have been ineffective assistance.
Inaccurate guess by deft counsel as to likely sentence did not make plea involuntary.
No error in safety valve counsel at trial and during appeal, denial of evidentiary hearing upheld.
http://media.ca8.uscourts.gov/opndir/16/01/143700P.pdf
Plain error not relevant to collateral attack of conviction.
Case extending Apprendi to mandatory minimums isn't retroactive to cases on collateral appeal, because Apprendi itself isn't retroactive.
No constitutional error in lack of assistance of counsel during Certiorari. No statutory error, as the omission of the issue from the petition wouldn't have been ineffective assistance.
Inaccurate guess by deft counsel as to likely sentence did not make plea involuntary.
No error in safety valve counsel at trial and during appeal, denial of evidentiary hearing upheld.
http://media.ca8.uscourts.gov/opndir/16/01/143700P.pdf
Eighth Circuit: United States v. David Tumea
Sentencing.
Within guidelines sentence upheld for weapons possession.
Supervised release condition barring possession of weapons analogues not overbroad, but specific items might be authorized by probation office.
Concurrence: BOP should provide mental health services during term of imprisonment.
http://media.ca8.uscourts.gov/opndir/16/01/143650P.pdf
Within guidelines sentence upheld for weapons possession.
Supervised release condition barring possession of weapons analogues not overbroad, but specific items might be authorized by probation office.
Concurrence: BOP should provide mental health services during term of imprisonment.
http://media.ca8.uscourts.gov/opndir/16/01/143650P.pdf
Eighth Circuit: Brent Ballinger v. Cedar County, MO
S1983
Since the state rule keeping prisoners in custody during the pendency of a state appeal while not staying the judicial order ordering their release does not apply to the procedural (direct, apparently) challenge on which the deft prevailed, he did not revert to the status of a pretrial detainee when he prevailed on appeal, and there is no constitutional harm in his being kept in solitary confinement during the state's appeal.
No per se constitutional harm in solitary confinement.
http://media.ca8.uscourts.gov/opndir/16/01/143576P.pdf
Since the state rule keeping prisoners in custody during the pendency of a state appeal while not staying the judicial order ordering their release does not apply to the procedural (direct, apparently) challenge on which the deft prevailed, he did not revert to the status of a pretrial detainee when he prevailed on appeal, and there is no constitutional harm in his being kept in solitary confinement during the state's appeal.
No per se constitutional harm in solitary confinement.
http://media.ca8.uscourts.gov/opndir/16/01/143576P.pdf
Eighth Circuit: United States v. James Robert Carlson
Analogue Act, FRE
Act not unconstitutional, per S.Ct. US.
No error in permissive inference instruction allowing jury to find knowledge of similar chemical structure of the drug based on knowledge of similar pharmacological effects, given deft's knowledge of chemical structures of the materials.
No abuse of discretion in admission of expert under Daubert, as methodological doubts go to weight of evidence and not admissibility.
Government spokesman's affirmation of industry statement that they planned to expand their distribution of unscheduled substances didn't create a defense of entrapment by estoppel.
FDCA violation established by misleading sale, not a knowing violation of the terms of the act.
No error of use of sentencing guidelines for scheduled substances as basis for sentence imposed for nonscheduled substances.
http://media.ca8.uscourts.gov/opndir/16/01/142986P.pdf
Act not unconstitutional, per S.Ct. US.
No error in permissive inference instruction allowing jury to find knowledge of similar chemical structure of the drug based on knowledge of similar pharmacological effects, given deft's knowledge of chemical structures of the materials.
No abuse of discretion in admission of expert under Daubert, as methodological doubts go to weight of evidence and not admissibility.
Government spokesman's affirmation of industry statement that they planned to expand their distribution of unscheduled substances didn't create a defense of entrapment by estoppel.
FDCA violation established by misleading sale, not a knowing violation of the terms of the act.
No error of use of sentencing guidelines for scheduled substances as basis for sentence imposed for nonscheduled substances.
http://media.ca8.uscourts.gov/opndir/16/01/142986P.pdf
Sixth Circuit: Juan Esquivel-Quintana v. Loretta E. Lynch
Immigration
Chevron deference to agency ruling that violations of a certain state law fall within the removability statute.
Rule of lenity does not control, given S. Ct. U.S. holdings.
http://www.ca6.uscourts.gov/opinions.pdf/16a0012p-06.pdf
Chevron deference to agency ruling that violations of a certain state law fall within the removability statute.
Rule of lenity does not control, given S. Ct. U.S. holdings.
http://www.ca6.uscourts.gov/opinions.pdf/16a0012p-06.pdf
Sixth Circuit: Richmond Health Facilities v. Adrianne Nichols
Arbitration, dicta/holding
Since state law holds that a wrongful death action is held by the next of kin and not the decedent, a release signed by the decedent cannot compel arbitration of the claim.
Arbitration act does not preempt the state law, as the state law does not bar compelled arbitration of the claim.
Rule in earlier holding by state supreme court was an alternative holding, not dicta.
Earlier holding can be retroactive, as it was a restatement of the law, and the state courts have since retroactively applied it.
http://www.ca6.uscourts.gov/opinions.pdf/16a0011p-06.pdf
Since state law holds that a wrongful death action is held by the next of kin and not the decedent, a release signed by the decedent cannot compel arbitration of the claim.
Arbitration act does not preempt the state law, as the state law does not bar compelled arbitration of the claim.
Rule in earlier holding by state supreme court was an alternative holding, not dicta.
Earlier holding can be retroactive, as it was a restatement of the law, and the state courts have since retroactively applied it.
http://www.ca6.uscourts.gov/opinions.pdf/16a0011p-06.pdf
Fourth Circuit: Donna Cisson v. C. R. Bard, Incorporated
FRE, Torts
No abuse of discretion in holding that compliance with a federal regulation was more prejudicial than probative in a state product liability claim, as the federal reg was a restatement of existing practices which merely required substantial compliance with similar product strategies.
Also correctly barred from punitive damages consideration, as minimal compliance wouldn't bar finding of high willfulness.
Error in allowing contents of MSDS in for the truth of the matter asserted as a list/directory, treatise, -- correct posture would have been for deft's knowledge - the difference is harmless.
No error in court's use of strict liability tort instruction as opposed to medical malpractice instruction in action involving manufacturer of medical devices.
Seven to one punitive damages ratio not constitutionally excessive.
Since the state created the right of action, state can take a percentage of the punitive award.
http://www.ca4.uscourts.gov/Opinions/Published/151102.P.pdf
No abuse of discretion in holding that compliance with a federal regulation was more prejudicial than probative in a state product liability claim, as the federal reg was a restatement of existing practices which merely required substantial compliance with similar product strategies.
Also correctly barred from punitive damages consideration, as minimal compliance wouldn't bar finding of high willfulness.
Error in allowing contents of MSDS in for the truth of the matter asserted as a list/directory, treatise, -- correct posture would have been for deft's knowledge - the difference is harmless.
No error in court's use of strict liability tort instruction as opposed to medical malpractice instruction in action involving manufacturer of medical devices.
Seven to one punitive damages ratio not constitutionally excessive.
Since the state created the right of action, state can take a percentage of the punitive award.
http://www.ca4.uscourts.gov/Opinions/Published/151102.P.pdf
Third Circuit: Josh Finkelman v. National Football League
Standing.
No Article III standing for challenge to NFL ticket prices, as no ticket was purchased, and the plaintiff didn't show that a more democratic ticketing system would have allowed him to go to the Super Bowl.
Second plaintiff who purchased ticket has no Article III standing, as he didn't attempt the lottery in additional to the premium ticket purchase, and can't therefore challenge the lottery practices, and the harm sustained by a secondary market purchase isn't the difference from face, but the unknowable difference from a ticket purchased in another version of the market.
Analogy to Twombly - facts consistent with a thing versus the thing itself.
http://www2.ca3.uscourts.gov/opinarch/151435p.pdf
No Article III standing for challenge to NFL ticket prices, as no ticket was purchased, and the plaintiff didn't show that a more democratic ticketing system would have allowed him to go to the Super Bowl.
Second plaintiff who purchased ticket has no Article III standing, as he didn't attempt the lottery in additional to the premium ticket purchase, and can't therefore challenge the lottery practices, and the harm sustained by a secondary market purchase isn't the difference from face, but the unknowable difference from a ticket purchased in another version of the market.
Analogy to Twombly - facts consistent with a thing versus the thing itself.
http://www2.ca3.uscourts.gov/opinarch/151435p.pdf
Second Circuit: Simmons v. Stanberry
Copyright- Statute of limitations
An exclusive license is identical to ownership for the purpose of the Copyright statute of limitations, which runs from the time that the initial licensee is aware of the primary infringement; the clock is not restarted by each attendant infringement.
http://www.ca2.uscourts.gov/decisions/isysquery/fb6e4ccb-6ffa-40f1-b0a8-b38f555365b5/1/doc/14-3106_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/fb6e4ccb-6ffa-40f1-b0a8-b38f555365b5/1/hilite/
An exclusive license is identical to ownership for the purpose of the Copyright statute of limitations, which runs from the time that the initial licensee is aware of the primary infringement; the clock is not restarted by each attendant infringement.
http://www.ca2.uscourts.gov/decisions/isysquery/fb6e4ccb-6ffa-40f1-b0a8-b38f555365b5/1/doc/14-3106_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/fb6e4ccb-6ffa-40f1-b0a8-b38f555365b5/1/hilite/
Seventh Circuit: USA v. Acasio Sanchez
Sentencing
Sufficient control over premises for sentencing bump, harmless error anyway.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-13/C:15-1356:J:Manion:aut:T:fnOp:N:1686660:S:0
Sufficient control over premises for sentencing bump, harmless error anyway.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-13/C:15-1356:J:Manion:aut:T:fnOp:N:1686660:S:0
Fifth Circuit: Seth B., et al v. Orleans Parish School Board
IDEA
Standard of appellate review of district court statutory review for reimbursement is mixed - facts and law.
Statute requires that local school board prove its claim in a hearing, not call a hearing to prove its claim -- the board can therefore establish its case at a timely hearing invoked by the other party.
Statute requiring the school board to establish its case doesn't shift the burden of persuasion in the district court - the claimant still must carry.
Statutory language describing third party evaluations describes the substance, not the evaluator. Private evaluations must substantially match the substantive standards of the public evaluations, despite the opacity of the regulatory criteria.
Dissent: You just made that last bit up.
http://www.ca5.uscourts.gov/opinions/pub/15/15-30164-CV0.pdf
Standard of appellate review of district court statutory review for reimbursement is mixed - facts and law.
Statute requires that local school board prove its claim in a hearing, not call a hearing to prove its claim -- the board can therefore establish its case at a timely hearing invoked by the other party.
Statute requiring the school board to establish its case doesn't shift the burden of persuasion in the district court - the claimant still must carry.
Statutory language describing third party evaluations describes the substance, not the evaluator. Private evaluations must substantially match the substantive standards of the public evaluations, despite the opacity of the regulatory criteria.
Dissent: You just made that last bit up.
http://www.ca5.uscourts.gov/opinions/pub/15/15-30164-CV0.pdf
Fifth Circuit: Loc 731 I.B. of T. Excavators v. Diodes, Incorporated
Securities, FRCP
Insufficiently strong inference of scienter in securities pleading, as top management was not necessarily aware of the specificities of the publicly-disclosed labor issues, early shipments would exacerbate the alleged labor troubles, and the sales of stock represented a small percentage of the executive's investments in the company.
http://www.ca5.uscourts.gov/opinions/pub/14/14-41141-CV0.pdf
Insufficiently strong inference of scienter in securities pleading, as top management was not necessarily aware of the specificities of the publicly-disclosed labor issues, early shipments would exacerbate the alleged labor troubles, and the sales of stock represented a small percentage of the executive's investments in the company.
http://www.ca5.uscourts.gov/opinions/pub/14/14-41141-CV0.pdf
First Circuit: Copia Communications, LLC v. AMResorts, LP
Personal Jurisdiction
Insufficient purposeful availment of things Massachusetts to hale a Jamaica-based company into Massachusetts court, as it merely received shipments from Massachusetts and signed a contract identifying the counterparty as a Massachusetts corporation with a Massachusetts address.
http://media.ca1.uscourts.gov/pdf.opinions/15-1330P-01A.pdf
Insufficient purposeful availment of things Massachusetts to hale a Jamaica-based company into Massachusetts court, as it merely received shipments from Massachusetts and signed a contract identifying the counterparty as a Massachusetts corporation with a Massachusetts address.
http://media.ca1.uscourts.gov/pdf.opinions/15-1330P-01A.pdf
First Circuit: Giroux v. Federal National Mortgage
FRCP
Court does not violate the FRCP by summary denial of a 60(b) motion.
New evidence that is merely cumulative to past assertions is not a basis for a 60(b)2 motion.
Fraud in the foreclosure is distinct from fraud in the litigation, and therefore not a basis for a 60(b)3 motion.
Except in cases of willful default, a summary denial of a 60(b)6 motion on res judicata grounds doesn't violate the FRCP.
http://media.ca1.uscourts.gov/pdf.opinions/15-1270P-01A.pdf
Court does not violate the FRCP by summary denial of a 60(b) motion.
New evidence that is merely cumulative to past assertions is not a basis for a 60(b)2 motion.
Fraud in the foreclosure is distinct from fraud in the litigation, and therefore not a basis for a 60(b)3 motion.
Except in cases of willful default, a summary denial of a 60(b)6 motion on res judicata grounds doesn't violate the FRCP.
http://media.ca1.uscourts.gov/pdf.opinions/15-1270P-01A.pdf
First Circuit: Harrison v. Granite Bay Care, Inc.
FRCP, Principal Place of Business
Despite the fact that the out-of-state corporate headquarters adopts a hands-off approach to the day to day running of the company, the nerve center test designates it as the principal place of business when the overall goals of the corporation are set there and the upper management personnel decisions are made from there.
The relevant exception in the state whistleblower statute derives from the motivations of the employee, and not from his or her duties. An employee whose duties include raising concerns is not precluded from seeking relief under the statute so long as his or her intent was to raise the concern, and not just to follow a direct instruction by a superior in the corporation.
http://media.ca1.uscourts.gov/pdf.opinions/14-1988P-01A.pdf
Despite the fact that the out-of-state corporate headquarters adopts a hands-off approach to the day to day running of the company, the nerve center test designates it as the principal place of business when the overall goals of the corporation are set there and the upper management personnel decisions are made from there.
The relevant exception in the state whistleblower statute derives from the motivations of the employee, and not from his or her duties. An employee whose duties include raising concerns is not precluded from seeking relief under the statute so long as his or her intent was to raise the concern, and not just to follow a direct instruction by a superior in the corporation.
http://media.ca1.uscourts.gov/pdf.opinions/14-1988P-01A.pdf
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