Sixth Circuit: Larry Slusser v. United States

Knowing and voluntary appeals waiver in plea deal forfeited the right to challenge a sentence that, given subsequent developments in the law, has become in excess of the statutory maximum sentence for the crime.  Circuit precedent to the contrary was dicta.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0136p-06.pdf

Sixth Circuit: In Re: Estate of Jerry West v. U.S. Dep't of Veterans Affairs

As the state court lost jurisdiction over the matter when the district court took it up, common-law probate remand to the state court had no basis, as there was no dual jurisdiction to resolve.  Also, state court did not have jurisdiction over claim, due to statutory administrative review procedures.

Dissent: Statute requires District Court to remand; District Court has no power to examine state forum's basis for jurisdiction.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0134p-06.pdf

Fifth Circuit: Arthur Mitchell v. City of Naples, et al

To present a genuine issue of material fact for trial as to the qualified immunity of the defendants in a wage discrimination claim, the plaintiff must present valid comparators with substantially similar positions.

http://www.ca5.uscourts.gov/opinions/pub/17/17-40737-CV0.pdf

Second Circuit: Massey v. United States

Habeas petition is untimely when petitioner was sentenced under an earlier-abrogated provision of the law that established certain crimes as predicate convictions based on the use of force, but petitions for relief under a subsequent holding of the Supreme Court as to the residual clause of the same law, since only the latter announced a substantive change in the law.

http://www.ca2.uscourts.gov/decisions/isysquery/d97b88cf-c722-4c12-a6fc-67b8ddb371fe/1/doc/17-1676_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d97b88cf-c722-4c12-a6fc-67b8ddb371fe/1/hilite/

Federal Circuit: Texas Optoelectronic v. Renesas Electronics

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

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

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

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

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

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

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

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.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-09/C:17-2004:J:Rovner:aut:T:fnOp:N:2183203:S:0

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.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-09/C:17-2427:J:Hamilton:aut:T:fnOp:N:2183310:S:0

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

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

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

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

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/

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/

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/

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/

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/

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/

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/

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

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

DC Circuit: Pennsylvania State Corrections v. NLRB

Employer bargained to lawful impasse, since the award of back pay at the time of impasse met the regulatory requirements. Parties had sufficient notice of the issues for jurisdiction.

Dissent:  Employer improperly conflated the back-pay issue with other issues, and since the timing of the impasse determines the back-pay,  simple declaration of impasse at a time when the disbursement was likely to be lawful doesn't establish that the impasse was per se lawful, since the bargaining that produced it seemed to put the back-pay in peril.  No jurisdiction over this claim, as the employer didn't raise it.

https://www.cadc.uscourts.gov/internet/opinions.nsf/76C77F8449B89631852582C200522637/$file/16-1328-1739390.pdf

DC Circuit: John Taylor v. FAA

An agency rule defining a certain class of model aircraft does not contradict the safe-harbor from an earlier law, as it imposes no more restrictions on the devices than does the earlier law.

Law did not implicitly incorporate an agency regulatory structure that exempted model aircraft; the provisions of the statute empowering the agency to regulate unmanned craft, read in conjunction with the definition of model aircraft within the safe-harbor provision, provides sufficient authority.

https://www.cadc.uscourts.gov/internet/opinions.nsf/E7D324AB37D6FC46852582C20052C10E/$file/16-1302.pdf

DC Circuit: American Rivers, et al v. FERC, et al

Association's members' desire to observe the diversity of the river is sufficient injury for standing.  Future deterioration is redressible.

A claim that omits to specifically challenge certain regulations can be read to challenge them, given the context, the motion to consolidate, and the discussion of issues; additionally, no prejudice.

Agency opinion arbitrarily disregarded the degree to which degraded baseline conditions imperiled existing species.

A perfunctory provision authorizing subsequent reconsideration if the fishing take exceeded 100% of a given species was an unlawfully vague trigger point.

Agency hard look didn't sufficiently consider present and cumulative harms.

https://www.cadc.uscourts.gov/internet/opinions.nsf/8CE28752AC62F25A852582C200528B2B/$file/16-1195.pdf

DC Circuit: John Croley v. Joint Committee on Judicial Administration

District Court has jurisdiction over claim alleging that DC Courts mismanaged tort recovery of plaintiff, since the claim sounds in tort and presents freestanding claims under the Federal Constitution; the claim doesn't amount to an attempt to revisit the earlier state court judgment, as the plaintiff prevailed in the DC action.

https://www.cadc.uscourts.gov/internet/opinions.nsf/20FB3AD02C5D887D852582C200529F33/$file/15-5080.pdf

DC Circuit: Sierra Club, et al v. EPA, et al

Agency finding that it was established that a certain emission was not a carcinogen was not based on substantial evidence, as the agency merely searched the literature for proof that it was carcinogenic.

Agency use without a safety margin of a "low confidence" metric beneath comparable state regulations presents an issue for trial.

Petitioners were not required to demonstrate that any given adjustment of the data was unreasonable; the agency needed to explain its rationale for the adjustments.

Agency discretion in setting pollution levels for each category can't be given to the manufacturer by defining several levels for each category; the statute requires the agency to set the levels.

Agency use of a synthetic area source to set the allowable levels for the category wasn't contrary to statute, as the source is within the category as defined.

As industry didn't sufficiently explain why some sources performed surprisingly well, agency's exclusion of some sources wasn't arbitrary or capricious.

Substantial evidence for agency finding that coming innovations will allow industry to meet standard without raw material substitutions.

Tile-making organization does not have sufficient Article III standing to intervene in judicial review of smokestack rulemaking absent some showing that its members will be harmed by the pending rule.

https://www.cadc.uscourts.gov/internet/opinions.nsf/B42E4D7405452F66852582C200525ACE/$file/15-1487.pdf

Ninth Circuit: Tamplin v. Muniz

Petitioner's desire to represent himself was sufficiently unequivocal in rejecting all public defenders and stating that he couldn't afford private counsel.  State Habeas denial grounded on the timeliness of the request for self representation was contrary to, or an unreasonable application of federal constitutional law, as there was a clear right to self-representation, since the request was made some weeks before trial.  Appellate counsel provided ineffective assistance, as second pro-se request hadn't been included in the appellate record.

Dissent: "Weeks before trial" is too vague to say that no reasonable jurist could have denied the habeas.  Brief appearance of private counsel presented timing problems and put into question the unequivocal nature of the request.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/06/16-15832.pdf

Ninth Circuit: Chuck Close v. Southeby's Inc.

Express preemption provision in the 1976 Act, together with the provisions on distributions and first sale, preempt state law requiring royalties to the original artist on subsequent sales.  Statements of subsequent Congress as to the preemption implied by VARA  can't be imputed to the earlier law.  Earlier precedent establishing that the 1909 Act did not preempt these claims incorporated common-law notions of distribution and first sale, and is therefore still viable for those claims.

Substantive Due Process undercuts Takings argument, but ultimately a question for remand.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/06/16-56234.pdf

Eighth Circuit: United States v. Terance Morice Highbull

Police officer's question "Do you have the phone" was insufficient to establish that the private citizen was an agent of law enforcement when she searched the vehicle for the phone, as the search was not requested, and the citizen had sufficient private motive to look for the phone.

http://media.ca8.uscourts.gov/opndir/18/07/172728P.pdf

Eighth Circuit: Mike Winn v. Commissioner, Social Security

It was within the ALJ's discretion to accept specialist medical opinions rather than that of the longtime treating physician. 

http://media.ca8.uscourts.gov/opndir/18/07/171987P.pdf

Eighth Circuit: United States v. Jeffrey Joseph Pendleton

Given circuit precedent, state Assault statute prohibiting causing the fear of illness or injury is a valid predicate violent crime.

http://media.ca8.uscourts.gov/opndir/18/07/171527P.pdf

Eighth Circuit: Sheldon Thompson v. Ray Singleton

Denial of qualified immunity upheld, as the characterization of the petitioner as confrontational was a contested fact for trial, and therefore couldn't be used to establish that there was no controlling precedent prohibiting the officer's tasing of the petitioner.

http://media.ca8.uscourts.gov/opndir/18/07/164080P.pdf

Sixth Circuit: James Lossia, Jr. v. Flagstar Bancorp, Inc.

Checking account agreement's incorporation of the rules of the financial transfer system meant that it did not breach the agreement by processing the transactions in the order in which they were presented for payment, as opposed to the order in which the customer initiated them.

Automated imposition of a number of overdraft fees exceeding the agreement's limit did not breach the agreement, as there was a policy of manually correcting the overage on the next business day.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0133p-06.pdf

Fifth Circuit: Atchafalaya Basinkeeper, et al v. U.S. Army Corps

Agency's mitigation analysis was sufficient, as the project did not have a significant environmental impact.  Use of external mitigation credits was sufficiently explained within the agency's decisionmaking process.  Corps recitation of potential cumulative impacts sufficed to establish consideration of cumulative impact.

http://www.ca5.uscourts.gov/opinions/pub/18/18-30257-CV0.pdf

Fifth Circuit: In-N-Out Burger, Incorporated v. NLRB

As the company could not demonstrate that it was trying to create a theatrical reality in the fast-food restaurant, the prohibition on the wearing of advocacy buttons infringed the Act; ALJ's findings on the sturdiness and safety of the button designs was reasonable.

Argument that subsequent buttons might be less safe and fall into the hamburgers was waived, as it wasn't raised before the Board.

http://www.ca5.uscourts.gov/opinions/pub/17/17-60241-CV0.pdf

Fifth Circuit: USA v. Richard Evans

Revised Opinion without order.

http://www.ca5.uscourts.gov/opinions/pub/17/17-20158-CR0.pdf

Fourth Circuit: Felicia Strothers v. City of Laurel, Maryland

Executive's statement that supervisor wanted to hire someone of a different race, combined with disparate treatment, suffices to establish a genuine issue of material fact as to whether the employee's subsequent complaint was motivated by perceived racial discrimination and therefore protected activity.

http://www.ca4.uscourts.gov/opinions/171237.P.pdf

Eighth Circuit: United States v. Keidell Doyal

Prior panel decision partially affirming grounds of an earlier decision vacated by Supreme Court binds the present panel, and circuit precedent holds that under modified categorical review, the state statute is a valid predicate crime of violence.  As the charging documents alleged attempt, the only provision of the statute that criminalizes attempt was the provision under which the deft was convicted.

http://media.ca8.uscourts.gov/opndir/18/07/171320P.pdf

Eighth Circuit: Scott H. Lansing v. Wells Fargo Bank, N.A.

As the claim based in a loan modification application arose within the pendency of the initial foreclosure action, it was available then as an affirmative defense, and is therefore now barred by res judicata.  The present claim based on the loan application violated petitioner's contractual agreement not to judicially challenge the foreclosure action.

http://media.ca8.uscourts.gov/opndir/18/07/171067P.pdf

Eighth Circuit: Ken Ross, Jr. v. Special Administrative Board

Third party intervenors have Article III standing in an action centered on a consent decree where the intervenor claims that a likely improper enforcement of the consent decree will have adverse consequences for the funding of the schools that their children attend.

http://media.ca8.uscourts.gov/opndir/18/07/163437P.pdf

Seventh Circuit: Alvaro Cortina-Chavez v. Jefferson B. Sessions III

Denial of request for sua sponte administrative review is unreviewable.

No abuse of discretion in denying motion to reconsider on the grounds that the petitioner neither alerted the agency to the specific basis for the appeal nor filed a brief within the required schedule, as both grounds operate as independent bases for the decision, and petitioner only appealed the first.

No abuse of discretion in referral to a single judge rather than a panel, since regulations specifically empower a single judge to dismiss on the grounds stated by the agency.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-05/C:17-2116:J:Rovner:aut:T:fnOp:N:2182163:S:0

Sixth Circuit: In re Chenault

Fact of sentence to parole doesn't state a claim of sufficient hardship for student loan debt discharge in bankruptcy.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18b0010p-06.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

Sixth Circuit: Jodi Hohman v. Maurice Eadie

By the terms of the statute, taxpayers have a cause of action for improper collection activities, but not for improper assessment activities.

Although the natural persons and small partnerships holding a cause of action under the statute resemble LLCs, LLCs are not within the plain terms of the statute, and do not have a right to file suit.

Discovery properly limited.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0131p-06.pdf

Third Circuit: Clientron Corp v. Devon IT Inc

As there was no showing that the misconduct benefited the defendants personally, District Court was correct in not piercing the corporate veil on a theory of sham, as corporate formalities should be considered differently with respect to closely held or family corporations.

 As the discovery sanction against one spouse, holding that a corporation held by a tenancy by the entirety was in fact an alter ego, created a split between federal substantive law for the discovery sanction and state substantive law for the co-tenant by the entirety, it was an abuse of discretion.  Under state law, both who hold by a tenancy of the entirety are presumed to act for the benefit of the marriage.

http://www2.ca3.uscourts.gov/opinarch/163432p.pdf

Third Circuit: Ahmed Bakran v. Secretary

As the statute vests the determination of status in the agency and such action is statutorily unreviewable, supporting criteria developed by the agency are also unreviewable, as they are merely interpretive aspects of the determination.

As the felony conviction of the alien's spouse and sponsor does not impede the marriage, but merely the right of the spouse to live in the US, the right to marry is not affected; further, the question of residency is much broader, and the limitation of the rights of the sponsor following a felony conviction is a reasonable one.

As the statute that attached new limitations to the rights of those already convicted was clearly intended to apply to past convictions and referenced post-enactment dangers, there is no violation of Ex Post Facto; waived anyway.

http://www2.ca3.uscourts.gov/opinarch/163440p.pdf

Blog's Anniversary

On this date in 2011, in a Starbucks in midtown Manhattan, history was made.  Admittedly, it was a very, very small event in history, but history nonetheless.

https://manhattanbarrister.blogspot.com/2011_07_05_archive.html

Ninth Circuit: Fleshman v. Volkswagen AG

Statute grants absolute right of intervention only to citizens who are barred from filing their own suit to enforce the law due tot he government's attempt to enforce that specific law.

As the government filed suit under the law regulating the devices, citizen suits seeking to enforce clean air laws are not barred, and the potential plaintiffs have no absolute right to intervene.

The present request to intervene seeks relief that is distinct from the government's relief; absent Article III standing (which can't be manufactured by simply seeking absolute compliance with the Act), the potential intervenor does not have an intervention of right.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/03/16-17060.pdf

Ninth Circuit: Wheeler v. City of Santa Clara

A sufficiently expansive state law of survivorship and intestate succession can bar an adopted natural child from asserting a S1983 claim, as there is no absolute right of succession implied by the purposes of the act.

Claims under the ADA and the RA are remedial in nature, not punitive; the statute-borrowing provisions of civil rights law are therefore inapplicable; there is no precedent under federal common law for allowing an adopted natural child to state a claim.

Absent a showing of a true parental relationship, an adopted natural child with a close relationship cannot state a claim under a Fourteenth Amendment liberty interest.

Court properly denied leave to amend, given relevant state statute of limitations, as nature of present claim doesn't hold the door open for relation-back.

Concurrence: Adopted children can establish a 14A claim.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/03/16-17375.pdf

Seventh Circuit: Ricardo Sanchez v. Jefferson B. Sessions III

Board's statement of a legal standard of probability suffices to establish a violation of the Fifth Amendment when considering the right to counsel in deportation proceedings where the correct standard is that of reasonable possibility of a different outcome.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-05/C:17-1673:J:Rovner:aut:T:fnOp:N:2181672:S:0

Seventh Circuit: Thomas Lovelace v. Todd McKenna

Court did not abuse its discretion in barring physician's record of statement that prison inmate asserted that the guards had beaten him, as it address the truth of the matter asserted, rather than the reason that treatment had been sought.

Witness' statement that he feared retribution from guards permissibly barred as more prejudicial than probative.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-03/C:17-1393:J:Kanne:aut:T:fnOp:N:2181083:S:0

Seventh Circuit: Wisconsin Central Limited v. Tienergy, LLC

Unresolved third-party claims do not preclude an appeal of the final decision where the trial court has clearly signalled an intent to resolve any outstanding claims.

Federal law defining rail transport rates created an independent cause of action under the act.

Transporting company's lack of actual knowledge of manifest terms defining it as a consignee does not preclude statutory liability as a consignee where it is not in the business of transporting cargo and it retains all funds from the subsequent sale of the product.

No implicit scheme of contribution or agency existed that would shift the costs.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-03/C:17-2343:J:Barrett:aut:T:fnOp:N:2181198:S:0

Fifth Circuit: USA v. Jesus Ledezma-Cepeda, et al

Court did not abuse its discretion in denying severance, as curative instruction sufficed to protect co-defendant from gruesome evidence against another defendant, despite mixture of questions at trial and the fact that his own attorney objected to some evidence against the other defendant.

http://www.ca5.uscourts.gov/opinions/pub/16/16-11731-CR0.pdf

Fifth Circuit: US v. Simone Swenson

As the defense could have sought a continuance after last-minute disclosures, the putative bad faith and actual prejudice from prosecutorial discovery misconduct did not rise to the abhorrent level needed to justify dismissal with prejudice.

http://www.ca5.uscourts.gov/opinions/pub/17/17-20131-CR0.pdf

Fifth Circuit: Firefighters' Retirement Sys, et al v. Consulting

Prior assertion that the court did not have personal jurisdiction over them does not judicially estop the deft from invoking the protection in the state statute, as the court ultimately did not accept the challenge to jurisdiction.

Where there is a clear prerequisite for suit in the state statute that can only be waived by written agreement of the parties, a federal court can enforce the prerequisite requirement despite state precedent to the contrary, as the question becomes one of procedure, not of substantive law.

Under state law, contra non valentum does not apply to peremption periods.

Waiver of the peremption period for fraud requires specific intent to deceive.

Under state law, filing of suit does not toll the peremptive period for the prerequisite accounting review.

http://www.ca5.uscourts.gov/opinions/pub/17/17-30274-CV0.pdf

Second Circuit: American Civil Liberties Union v. Department of Justice

Prevailing party who can demonstrate a likelihood of harm from an incidental disclosure in the court's decision has standing to seek appellate review of that decision as an aggrieved party.

Where the challenged dictum is not necessary to the holding and the government party to the case can advance a reasonably debatable argument for its falsity, there is a substantial possibility of material harms to the government's interests from disclosure, and the fact is available in publicly available sources, the court may redact the statement from the opinion.

http://www.ca2.uscourts.gov/decisions/isysquery/43875d78-c1de-461c-92e1-0df1db0fda59/1/doc/17-157_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/43875d78-c1de-461c-92e1-0df1db0fda59/1/hilite/

Federal Circuit: PPC Broadband v. Director

Given the commercial success of the product (however limited) the Board should revisit the question of the obviousness of the springy-washer-thing.

(Again, we don't know many things.  We especially don't know Patent.  Entertainment purposes only, as always.)

http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1362.Opinion.7-3-2018.pdf

DC Circuit: EIG Energy Fund XIV, L.P. v. Petroleo Brasileiro, S.A.

The domestic effects of the scheme were sufficient for jurisdiction under FISA, as damages were incurred before the foreign investors withdrew (which might have attenuated the causation), and the foreign locus of the investment vehicles used by the domestic investors does not preclude a finding of direct effects on the domestic investors.

https://www.cadc.uscourts.gov/internet/opinions.nsf/D7C9FB5343E0C109852582BF005095DA/$file/17-7067-1738941.pdf

DC Circuit: Ho-Chunk, Inc. v. Jeff Sessions

Corporations incorporated under tribal law and wholly owned by the tribe are subject to the tobacco recordkeeping laws, as the reservations are within the states, and the act does not base its jurisdiction on a territorial determination.

Tribes and tribal instrumentalities are persons, given the Definitions Act.

https://www.cadc.uscourts.gov/internet/opinions.nsf/A1C437A21B393451852582BF005095BB/$file/17-5140-1738923.pdf

DC Circuit: Republic of Argentina v. AWG Group Ltd

Arbitratrator on board of investment bank was not made evidentially partial to a party by the bank's substantial investments in it, as passive investing is distinct from an active business relationship, and the loans were an insignificant part of the bank's total portfolio.

Arbitrator's decisions on the merits were within the scope of the arbitration; finding not precluded by international conventions.

https://www.cadc.uscourts.gov/internet/opinions.nsf/7B9299B6A47D2BBE852582BF005095A5/$file/16-7134-1738928.pdf

DC Circuit: USA v. Franklin Torres

Sufficient circumstantial evidence from the photographs to establish that production of the photographs was a purposeful act.

Leading dispositve question to reticent victim was within the court's discretion.

Concur/dissent:  The statute requires a severable, independent purpose of producing the photographs.

https://www.cadc.uscourts.gov/internet/opinions.nsf/17A4126212AF784D852582BF0050958A/$file/16-3078-1738916.pdf

DC Circuit: USA v. Carlos Aguiar

Insufficient prejudice from closing of voir dire to justify federal habeas.

Government's intent to increase the charges to a potential life sentence were clear and easily determined; a claim of ineffective assistance based on not advising the deft of this therefore justifies a hearing.

Partial dissent: no contemporaneous evidence that deft would have accepted the plea.

https://www.cadc.uscourts.gov/internet/opinions.nsf/8471B6FE7C0D7212852582BF0050A06F/$file/15-3027.pdf

Tenth Circuit: Underwood v. Royal

No ineffective assistance in not presenting forensic evidence, as omission of gruesome details might have been a sound trial strategy.

Prosecutor's remarks in closing about condition of victim did not unduly prejudice the verdict.

Approved instructions did not prejudicially suggest restrictions on mitigating circumstances.

Admission of victim's parents sentencing recommendations cannot in itself rise to structural error, and was not an error in the aggregate; such muted, one-off pleas do not warrant the writ.

State appellate decision that the jury did not need to find beyond a reasonable doubt that aggravating circumstances outweighed mitigating ones was not contrary to or an unreasonable application of Supreme Court precedent.

https://www.ca10.uscourts.gov/opinions/16/16-6262.pdf

Tenth Circuit: Pavatt v. Royal

Amended panel opinion after denial of en banc.

No prejudice from ineffective assistance claim based on admission of victim photos, as objection would have been useless under res judicata -- similar photos previously held admissible in another case.

Aggravating circumstance of victim suffering was imposed using an unconstitutionally broad standard for potential suffering, state habeas to contrary was an unreasonable application of the law.

Dissent:

Ineffective assistance claims generally procedurally barred, as state provided time to raise them 

A reasonable finder of fact might have determined that victim suffered, regardless of how broad the potential application of the standard might be.

https://www.ca10.uscourts.gov/opinions/14/14-6117.pdf

Ninth Circuit: US v. Sanchez-Gomez

Summary order dismissing action as moot.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/02/13-50561.pdf

Eighth Circuit: Stephen McCormick v. Starion Financial

State judgments did not merge earlier secured claims; the provision for costs and fees in the precipitating liens therefore survived the reduction to the judgment, despite being barred under state law from inclusion in the judgments.

http://media.ca8.uscourts.gov/opndir/18/07/172192P.pdf

Eighth Circuit: Edward Hugler v. La Piedad Corporation

Court erred in holding corporation in contempt based on administrative subpoena to the corporation seeking business records of the shareholders, as the corporation had insufficient control over the records.

http://media.ca8.uscourts.gov/opndir/18/07/171845P.pdf

Eighth Circuit: Alexandra Sims v. State Farm

Erroneous denial of insurance claim does not suffice to establish bad faith under state law; court's holding that bad faith hadn't been established did not preclude that oppressiveness (which is also listed in the disjunctive) was also not found.

No abuse of discretion in refusal to admit evidence of insurer's systematic practices, since they were possibly confusing.

http://media.ca8.uscourts.gov/opndir/18/07/171333P.pdf

Eighth Circuit: NAACP v. Ferguson-Florissan

No per se clear error in using decennial census numbers as opposed to more recent ones.

A racial categorization does not lose minority status under the act upon attaining a bare majority in the district; the intensely local inquiry must take into account past discrimination and disenfranchisement.

Narrowness of win does not disqualify the win as proof against bloc voting.

Racially proportional representation is not per se proof that there is no actionable discrimination under the Act.

http://media.ca8.uscourts.gov/opndir/18/07/164511P.pdf

Eighth Circuit: Gerald Moses v. Dassault Falcon Jet Corp

Firing was a discrete act that started the clock for administrative exhaustion with respect to any claims arising from the firing.

Medical evidence sufficed for dismissal of statutory disability claim.

Unpleasant and rude conduct did not present an issue for trial on a claim of actionable harassment.

Medical evidence precluded ADA reasonable accomodations claim.

Insufficient causation for retaliation claim.

http://media.ca8.uscourts.gov/opndir/18/07/164343P.pdf

Seventh Circuit: Destiny Hoffman v. Susan Knoebel

Sheriff's department employees had no affirmative duty to repair systematic infractions of rights in state drug court; as their conduct was simply negligent, they were not liable for the harms under S1983.

Insufficient showing for municipal liability, since there were potentially remediatory policies in place.

Arrests with insufficient authority were an issue of state law that didn't rise to the level of a constitutional violation.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-03/C:17-2750:J:Wood:aut:T:fnOp:N:2180890:S:0

Seventh Circuit: Anthony Robinson v. Alfred Perales

As plaintiff did not present claim that deft and corporate deft were linked and declined to assert strict liability of one for the other during deliberations, no error in jury finding liability for one and not the other.

Explicit provision for nominal damages did not impermissibly suggest that non-monetary damages were appropriate.

Racial epithet and disparate treatment suffices to present an issue for trial on hostile work environment.

Statement of opposing party wasn't barred as hearsay.

Triable question of retaliation given facts.

Concerted attempts to end the plaintiff's career were sufficient for the verdict.

Court did not abuse its discretion in comparing the discussion of amounts of award in plaintiff's closing with actual award in declining to award fees.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-02/C:16-3390:J:Rovner:aut:T:fnOp:N:2180150:S:0

Sixth Circuit: United States v. Dallas Maynard

As the state Assault Under Extreme Emotional Disturbance statute requires the intentional infliction of injury, it is categorically a predicate violent crime.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0130p-06.pdf

Fourth Circuit: US v. Chavez

No Brady violation in nondisclosure of prosecution witness immigration records, as not prejudicial, and the favorable immigration treatment was sufficiently raised during trial to discredit the testimony.

No Napue violation, as gov't didn't know of the misstatement in advance, and it was corrected on cross.

Scattered prosecutorial misconduct incidental.

No error on not instructing on the lesser included crimes, as a murder was committed, and the defts didn't have to actually physically participate in the murder to be found guilty of it.

Admission of evidence on uncharged murder not dispositive, and arguendo, harmless error.

Claiming lack of foreknowledge not enough to justify severance as an antagonistic defense.

Statute requiring second chair counsel in capital cases requires prompt request for replacement by the deft; court did not abuse its discretion in denying severance and continuance.

Sufficient evidence.

Historical cell site information admitted under the good faith exception.

No Eighth Amendment violation in life sentence for crime committed at 18 without specific findings from jury.

http://www.ca4.uscourts.gov/opinions/164499.P.pdf

Second Circuit: United States v. Gasperini

No plain error from claimed unconstitutional vagueness of statute (CFAA), as the conduct here was squarely within the core prohibition.

As the statute (SCA) does not provide for the exclusion of evidence as a remedy, no abuse of discretion in allowing evidence from extraterritorial searches.

Mere gov't request to foreign agency is not enough to bring the subsequent extraterritorial search under the protections of the Fourth Amendment.

Internet archive screenshots properly admitted as business records, given testimony by staffers that they were created in the course of business.

http://www.ca2.uscourts.gov/decisions/isysquery/2ba81dc4-9c50-470e-9f2d-3feefa265ae5/1/doc/17-2479_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2ba81dc4-9c50-470e-9f2d-3feefa265ae5/1/hilite/

First Circuit: MAZ Partners LP v. Shear

Under state law, a non-majority shareholder director can be said to hold a controlling interest in the corporation when he or she evinces actual control of the company; control of a class of shares with the power to block corporate actions, the power to appoint directors, and actual control of past transactions are among the indicia of control.

Outside of closely held corporations, shareholder ratification isn't a safe-harbor against a basic fairness inquiry, given the way that the statute is written.

As the intent of the statute is to reverse the common-law presumption of voidability for interested transactions, it does not legitimate shifting the burden to the plaintiff in cases of ratified transactions when the plaintiff is not seeking to void the deal.

Breach of fiduciary duty sounds in equity, so disgorgement is an appropriate remedy; the court did not abuse its discretion in allotting the windfall to the wronged party.

Declining curative instruction as to evidence admitted presents virtually insuperable bar to raising the claim on appeal.

Wilkes Booth given his cue at 16, Polonius pops up at 21.

http://media.ca1.uscourts.gov/pdf.opinions/17-1821P-01A.pdf

First Circuit: US v. Acosta-Joaquin

The deft's intent to represent the social security number as his and his conduct in providing the number, although associated with the correct name, sufficed for a fraudulent use of the social security number.

http://media.ca1.uscourts.gov/pdf.opinions/17-1379P-01A.pdf

Federal Circuit: Adidas v. Nike

Prudential remand to consider non-instituted grounds is appropriate when those grounds were raised in the petition.

http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/18-1180.Motion_Panel_Order.7-2-2018.1.pdf

DC Circuit: Ashbourne v. Hansberry

As both the earlier administrative proceeding and the earlier Article III proceeding permitted joinder of the EEOC claim to the civil suit, Title VII claim rooted in the same nucleus of facts is barred under res judicata.

https://www.cadc.uscourts.gov/internet/opinions.nsf/A7A90C4B0D21BC8A852582BB0050FB8F/$file/17-5136.pdf

DC Circuit: St. Francis Medical Center v. Azar

Regulation prohibiting revisiting of predicate factual determinations beyond three years in agency reopening proceeding does not prohibit revisiting such factual determinations in statutory direct appeals to the Board.

https://www.cadc.uscourts.gov/internet/opinions.nsf/5B15C6CE526BEB92852582BB00512041/$file/17-5098.pdf

DC Circuit: Jennifer Campbell v. DC, et al

Motions during trial claiming that petitioner had suffered insufficient harm under the statutory tort did not preserve a claim that the theory of harm found by the finder of fact was in fact based in the events alleged in the claim rejected by the finder of fact.

Claim rooted in improper dismissal does not have to allege any fixed period of unemployment to state a claim under the statute.

https://www.cadc.uscourts.gov/internet/opinions.nsf/018EBEB666041BD2852582BB005130D4/$file/16-7077.pdf

DC Circuit: USA v. Gregory Sitzmann

Consideration of extraterritorial conduct did not violate the presumption against extraterritoriality, given the domestic elements of the conspiracy.

Assuming manufactured venue is a thing, agents' instructions to wire funds to DC was not an impermissible creation of venue.

As venue was not objected to prior to the close of the prosecutions case in chief, no error in court's holding that it was not an issue for the finder of fact.

No Brady claim in late release of co-conspirator's grand jury testimony, as insufficiently exculpatory.

Purportedly false evidence presented insufficiently prejudicial.

Introduction of co-conspirator's guilty plea not plain error, as insufficiently prejudicial.

No ineffective assistance.

https://www.cadc.uscourts.gov/internet/opinions.nsf/38541443F92BCBB4852582BB00514136/$file/15-3074.pdf

Tenth Circuit: Barton v. Hunter

As petitioner is not in custody, denial of parental custody does not state a claim for Habeas relief under the statute.

https://www.ca10.uscourts.gov/opinions/18/18-5016.pdf

Ninth Circuit: Pinkette Clothing v. Cosmetic Warriors

Although laches is not available against a copyright or patent claim within the term of the statute, the Lanham Act provides a five year period to equitably challenge a mark, after which a challenge is still available on other grounds. Laches, as an equitable defense, is therefore available as a defense within the initial five year term.

No error in finding that the claim was equitably barred, given showing that most analogous state statutes of limitations had expired.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/29/17-55325.pdf

Eighth Circuit: US v. Kevin Morrisey

Plain error not to instruct jury that Possession, as a lesser included offense of Receipt, could not be proved with respect to the same items.

Improper venue claim waived by counsel at trial.

Shift in the theory of the offense that would have encompassed crimes outside of the court's jurisdiction did not constitute a constructive amendment of the indictment, as venue is not an essential element of the offense. 

Plain error to admit spreadsheet with list of images with outside expert hearsay commmentary, but no prejudice.

No prejudice from statement in closing that implied that files could be received by when internally transferred.

http://media.ca8.uscourts.gov/opndir/18/06/172157P.pdf

Eighth Circuit: Garcia-Mata v. Sessions

Board holding that contradicted Immigration Judge's findings of fact without claiming clear error was contrary to it's interpretation of its own jurisdiction and the principle that holdings must be stated clearly; citing the regulation that allows for different standards of review in different situations does not sufficiently establish the claim of clear error.

http://media.ca8.uscourts.gov/opndir/18/06/171682P.pdf

Eighth Circuit: US v. Kwame Askia

Federal embezzlement statute is not a continuing offense; once the threshold has been reached, the offense is complete.  For purpose of the stature of limitations, however, so long as the limit is reached within the relevant timeframe, the fact that the offense began earlier doe not bar the indictment.

No plain error in introduction of evidence of theft outside the statute of limitation's timeframe; no sixth amendment claim arising from pro se / standby.

Hearsay claim arising out of pretrial detention hearing moot. No 6A claim.

Sufficient evidence.

http://media.ca8.uscourts.gov/opndir/18/06/171515P.pdf

Seventh Circuit: Isaac Capps v. Kevin Drake

Sua sponte referral of postjudgment motion to another court is within the inherent authority of the court.

Whatever the legal status of the fee agreement, error to deny fees under S1988 where petitioner's primary interest is the vindication of the claim and the award is not de minimis; the fact that the award was under the last settlement offer does not negate the basis for the award.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-29/C:17-1876:J:Kanne:aut:T:fnOp:N:2179169:S:0

Seventh Circuit: Chicago Joe's Tea Room, LLC v. Village of Broadview

Denial of equitable relief can suffice for interlocutory appeal despite pendent unresolved damages.

Sufficient standing for the owner where owner leases to a party who leases to another party for use barred by the action in question.

Claim arising from municipality's barring of the use is moot, as the lessee's planned use would always have violated governing law, so enforcement of the municipal regulation is not barred by the vested rights doctrine; an earlier finding of licit use does not bind under law of the case, as it is a subjective, discretionary consideration of jurisdiction, and there is no indication that the earlier finding considered the relevant statute. 

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-29/C:16-1989:J:Hamilton:aut:T:fnOp:N:2178625:S:0

Sixth Circuit: United States v. Marcus Fleming

Plain procedural error in sentencing where the court bases an upward variance on extrinsic evidence first revealed at sentencing, and the deft is not given a meaningful opportunity to dispute the veracity or relevance of that evidence.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0129p-06.pdf

Sixth Circuit: Rita McDaniel v. Upsher-Smith Laboratories, Inc.

Where the claim arises from a state product liability statute that looks to the federal guidelines as to the level of medical warnings to be provided, a claim under the tort based on the omission of the warning is impliedly preempted by federal law.

Concur/dissent (CJ) -- Violation of the federal statute is not a necessary element of the claim, so not preempted.  Learned intermediary doctrine does not save defts.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0128p-06.pdf

Fifth Circuit: Kymberli Gardner v. CLC of Pascagoula, L.L.C.

In a Title VII action for hostile work environment, when an employer becomes aware of harassing or violent conduct by a thord party, it has an obligation to attempt a remedy.

A wrongful termination action under the same statute presents an issue for trial where the protected activity is a refusal to deal with the harassing third party and there is a showing of direct evidence associating the refusal with the firing.

http://www.ca5.uscourts.gov/opinions/pub/17/17-60072-CV0.pdf

Fifth Circuit: Fisk Electric Company v. DQSI, L.L.C.

As the rights and liabilities arising from claims on a contract to construct a federal building are derivative of federal statutes, federal law governs a claim of fraudulent inducement.

As the federal common law of contracts mirrors the common law, the Restatement standard of de minimis burden to investigate fraudulent inducement, the claim presented a genuine issue of material fact where a party made reasonable attempts to gain the relevant documents through FOIA requests.

http://www.ca5.uscourts.gov/opinions/pub/17/17-30091-CV0.pdf

Fifth Circuit: Fallon Family, L.P. v. Goodrich Petroleum Corp.

Under state law, where a continuing contractual scheme of payments for a mineral lease is not reflected in the property's recordation, a party to the contract cannot exercise the power of dissolution against the debtor-in-possession counterparty otherwise liable for the pre-petition payments, as the latter has acquired the status of bona fide puchaser for value.

http://www.ca5.uscourts.gov/opinions/pub/17/17-20278-CV0.pdf