Sentencing
Where a change in the sentencing law would not affect the guidelines calculation, a reduction of the term of imprisonment is not authorized by the statute, despite the fact that the lower point total might allow for more discretion at resentencing.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-03/C:15-2492:J:PerCuriam:aut:T:fnOp:N:1697080:S:0
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.
Seventh Circuit:Hans-Peter Baumeister v. Deutsche Lufthansa AG
International, Contracts
Foreign contract covering performance by a nonparty but assigning liability for complete nonperformance to the nonparty does not allow the party to the contract to be sued for breach in a US forum under a foreign statutory cause of action adopted by the contract. (Airline code-sharing, EU legislation)
(In a different matter:)
Domestic contract where the foreign nonparty generally incorporates the foreign statutory cause of action in its agreements is not modified to include the cause of action under apparent authority when the nonparty is the visible agent in the fulfillment of the contract.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-02/C:14-2633:J:Posner:aut:T:fnOp:N:1696487:S:0
Foreign contract covering performance by a nonparty but assigning liability for complete nonperformance to the nonparty does not allow the party to the contract to be sued for breach in a US forum under a foreign statutory cause of action adopted by the contract. (Airline code-sharing, EU legislation)
(In a different matter:)
Domestic contract where the foreign nonparty generally incorporates the foreign statutory cause of action in its agreements is not modified to include the cause of action under apparent authority when the nonparty is the visible agent in the fulfillment of the contract.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-02/C:14-2633:J:Posner:aut:T:fnOp:N:1696487:S:0
Fifth Circuit: USA v. Oscar Juarez
Sentencing
Where the court erroneously states at sentencing that there is no guidelines range, a sentence representing an upward departure is error - remanded.
Not harmless.
http://www.ca5.uscourts.gov/opinions/pub/15/15-40191-CR0.pdf
Where the court erroneously states at sentencing that there is no guidelines range, a sentence representing an upward departure is error - remanded.
Not harmless.
http://www.ca5.uscourts.gov/opinions/pub/15/15-40191-CR0.pdf
Fourth Circuit:James Hayes v. Delbert Services Corporation
Arbitration, Choice of Law, Tribe Law
Loan agreement arbitration clause electing the forum and law of the Sioux nation is invalid and unenforceable, as it operates as a waiver of all federal rights.
Not severable from arbitration provision.
No need to exhaust tribal remedies, as the controversy has nothing to do with the tribe.
http://www.ca4.uscourts.gov/Opinions/Published/151170.P.pdf
Loan agreement arbitration clause electing the forum and law of the Sioux nation is invalid and unenforceable, as it operates as a waiver of all federal rights.
Not severable from arbitration provision.
No need to exhaust tribal remedies, as the controversy has nothing to do with the tribe.
http://www.ca4.uscourts.gov/Opinions/Published/151170.P.pdf
Third Circuit: Jeffrey Wiest v. Tyco Electronics Corp
FRCP, Torts, Employment
12(b)6 ruling for plaintiff does not compel a finding at summary judgment under law of the case that there was sufficient nexus between the protected activity and the adverse action.
Insufficient nexus, nondiscriminatory motive.
http://www2.ca3.uscourts.gov/opinarch/152034p.pdf
12(b)6 ruling for plaintiff does not compel a finding at summary judgment under law of the case that there was sufficient nexus between the protected activity and the adverse action.
Insufficient nexus, nondiscriminatory motive.
http://www2.ca3.uscourts.gov/opinarch/152034p.pdf
Third Circuit: Moore & Co P A v. Majestic Blue Fisheries LLC
FCA
Amended disclosure bar is not jurisdictional - court properly considers under 12(b)6.
Documents acquired by FOIA can constitute a prior disclosure.
Realtors's information was independent of and materially added to the information already available by establishing the who, what, where, why and when.
http://www2.ca3.uscourts.gov/opinarch/144292p.pdf
Amended disclosure bar is not jurisdictional - court properly considers under 12(b)6.
Documents acquired by FOIA can constitute a prior disclosure.
Realtors's information was independent of and materially added to the information already available by establishing the who, what, where, why and when.
http://www2.ca3.uscourts.gov/opinarch/144292p.pdf
Second Circuit: Atlantica Holdings, Inc. v. Sovereign Wealth Fund Samruk-Kazyna JSC
FISA, Securities
FISA provides a cause of action under commercial exception for extraterritorial misrepresentations where the losses were directly and (usually to some degree foreseeably) sustained within the USA.
Direct effects on nonparties would qualify.
Locus delicti is where the harm is sustained.
Court declines to exercise pendent jurisdiction over interlocutory appeal on personal jurisdiction.
http://www.ca2.uscourts.gov/decisions/isysquery/2041fd8d-3326-4eba-b744-bb57b252fa78/1/doc/14-917_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2041fd8d-3326-4eba-b744-bb57b252fa78/1/hilite/
FISA provides a cause of action under commercial exception for extraterritorial misrepresentations where the losses were directly and (usually to some degree foreseeably) sustained within the USA.
Direct effects on nonparties would qualify.
Locus delicti is where the harm is sustained.
Court declines to exercise pendent jurisdiction over interlocutory appeal on personal jurisdiction.
http://www.ca2.uscourts.gov/decisions/isysquery/2041fd8d-3326-4eba-b744-bb57b252fa78/1/doc/14-917_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2041fd8d-3326-4eba-b744-bb57b252fa78/1/hilite/
Federal Circuit: TRUSTEES OF COLUMBIA UNIV. v. SYMANTEC CORPORATION
Patent
(Which, again, is among the many areas of the law in which we are relatively clueless.)
Although there is a heavy presumption in favor of common meanings in patent language, a claimant utilizing another interpretation does not have to explicitly redefine the word or disavow the common meaning.
Term is specific, not general.
Academic paper by inventor describing an invention not in controversy cannot be used to determine construction of claim.
Dependent claims are presumed to be narrower than the independent claims from which they derive.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1146.Opinion.1-29-2016.1.PDF
(Which, again, is among the many areas of the law in which we are relatively clueless.)
Although there is a heavy presumption in favor of common meanings in patent language, a claimant utilizing another interpretation does not have to explicitly redefine the word or disavow the common meaning.
Term is specific, not general.
Academic paper by inventor describing an invention not in controversy cannot be used to determine construction of claim.
Dependent claims are presumed to be narrower than the independent claims from which they derive.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1146.Opinion.1-29-2016.1.PDF
Eleventh Circuit: Brandon Jones v. Commissioner, GA DOC, et al. (2)
S1983, Due Process
Due process claim against state secrecy statute doesn't state a claim under S1983.
Eighth amendment claim not appealed, insufficient, as no better method has been established.
Insufficient injury for standing resulting from state secrecy statute.
Lateness of appeal argues against equities of stay.
http://media.ca11.uscourts.gov/opinions/pub/files/201610277.ord.pdf
[CB editorial: The death penalty is morally unjustifiable.]
Due process claim against state secrecy statute doesn't state a claim under S1983.
Eighth amendment claim not appealed, insufficient, as no better method has been established.
Insufficient injury for standing resulting from state secrecy statute.
Lateness of appeal argues against equities of stay.
http://media.ca11.uscourts.gov/opinions/pub/files/201610277.ord.pdf
[CB editorial: The death penalty is morally unjustifiable.]
Eleventh Circuit: Brandon Jones v. Commissioner, GA DOC, et al. (1)
Due Process
Concurrence in denial of en banc - no Due Process right to discovery of method of manufacture of state execution materials, given state secrecy statute.
http://media.ca11.uscourts.gov/opinions/pub/files/201610277.opn.pdf
[CB editorial: The death penalty is morally unjustifiable.]
Concurrence in denial of en banc - no Due Process right to discovery of method of manufacture of state execution materials, given state secrecy statute.
http://media.ca11.uscourts.gov/opinions/pub/files/201610277.opn.pdf
[CB editorial: The death penalty is morally unjustifiable.]
Ninth Circuit: JACKSONVILLE POLICE & FIRE PF V. CVB FINANCIAL CORP
Securities
Statements not actionable, as they were sufficiently hedge, described present reality.
Sufficient falsity and scienter for material omission in "no serious doubts" statement on 10-q, as firm was on notice of largest borrower's difficulties.
Announcement of a subpoena amounted to corrective disclosure, given subsequent lack of market reaction to loan writeoffs.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/02/01/13-56838.pdf
Statements not actionable, as they were sufficiently hedge, described present reality.
Sufficient falsity and scienter for material omission in "no serious doubts" statement on 10-q, as firm was on notice of largest borrower's difficulties.
Announcement of a subpoena amounted to corrective disclosure, given subsequent lack of market reaction to loan writeoffs.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/02/01/13-56838.pdf
Eighth Circuit: Ruben Alva-Arellano v. Loretta E. Lynch
Immigration
No abuse of discretion in agency's declining to reopen case where IJ did not inform potential deportee about relief available by means of asylum and CAT, as the IJ had not duty to inform absent evidence of relevance, and the evidence was discoverable prior to the hearing.
http://media.ca8.uscourts.gov/opndir/16/02/142957P.pdf
No abuse of discretion in agency's declining to reopen case where IJ did not inform potential deportee about relief available by means of asylum and CAT, as the IJ had not duty to inform absent evidence of relevance, and the evidence was discoverable prior to the hearing.
http://media.ca8.uscourts.gov/opndir/16/02/142957P.pdf
Seventh Circuit: USA v. Aaron Thompson
FTCA SOL
Statute of limitations bars claims related to prenatal treatment and birth, as both accrued on or around the time of birth.
No equitable tolling, as the federal status of the clinic was discoverable.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-02/C:15-1868:J:Bauer:aut:T:fnOp:N:1696343:S:0
Statute of limitations bars claims related to prenatal treatment and birth, as both accrued on or around the time of birth.
No equitable tolling, as the federal status of the clinic was discoverable.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-02/C:15-1868:J:Bauer:aut:T:fnOp:N:1696343:S:0
Seventh Circuit: USA v. Titan International, Incorporated
Tax
Federal government can subpoena business records from a previous year that have already been the target of inspection in prior tax years, so long as the second subpoena is not for the purposes of reopening the audit of the previous year's returns.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-01/C:14-3789:J:Sykes:aut:T:fnOp:N:1695969:S:0
Federal government can subpoena business records from a previous year that have already been the target of inspection in prior tax years, so long as the second subpoena is not for the purposes of reopening the audit of the previous year's returns.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-01/C:14-3789:J:Sykes:aut:T:fnOp:N:1695969:S:0
Seventh Circuit: USA v. Aaron Thompson
Fourth Amendment
Surreptitious video recording made by invited guest in private apartment does not violate 4A, as the only things recorded were within the eyesight of an invited informant who would have been able to testify to them.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-01/C:15-2008:J:Kanne:aut:T:fnOp:N:1696062:S:0
Surreptitious video recording made by invited guest in private apartment does not violate 4A, as the only things recorded were within the eyesight of an invited informant who would have been able to testify to them.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-01/C:15-2008:J:Kanne:aut:T:fnOp:N:1696062:S:0
Sixth Circuit: Trumbull Cnty. Bd. of Comm'rs v. Village of Lordstown, Ohio
Municipality does not have Article III standing to challenge a second municipality's use of a very large pipe to build a second sewer nearby, since, although the large pipe might someday be used to offer a competing sewer option to a factory in the first municipality, there is insufficient showing that it would happen within the timeframe of the federal noncompete statute.
Dissent: Standing, since judicial resolution would provide present financial certainty. (But would deny on merits.)
http://www.ca6.uscourts.gov/opinions.pdf/16a0022p-06.pdf
Dissent: Standing, since judicial resolution would provide present financial certainty. (But would deny on merits.)
http://www.ca6.uscourts.gov/opinions.pdf/16a0022p-06.pdf
Fifth Circuit: Rochelle Flynn v. Distinctive Home Care, Inc
ADA, Statutory construction
Although a statute incorporated an earlier statute's definition of employment relationships, it did not incorporate the prior statute's requirement that there must be an employment relationship for standing. Independent contractors therefore potentially have a right of action under the second statute.
Circuit split flagged.
http://www.ca5.uscourts.gov/opinions/pub/15/15-50314-CV0.pdf
Although a statute incorporated an earlier statute's definition of employment relationships, it did not incorporate the prior statute's requirement that there must be an employment relationship for standing. Independent contractors therefore potentially have a right of action under the second statute.
Circuit split flagged.
http://www.ca5.uscourts.gov/opinions/pub/15/15-50314-CV0.pdf
Fourth Circuit: Farhan Warfaa v. Yusuf Ali
International
ATS claim barred under the presumption against extraterritorial application, as it does not extensively and directly touch and concern the USA.
Foreign officials cannot claim sovereign immunity in TVPA actions alleging jus cogens violations.
Concur/Dissent: Deft is non-adventitiously a lawful permanent resident who earlier did military training in the USA, so ATS allows the claim.
http://www.ca4.uscourts.gov/Opinions/Published/141810.P.pdf
ATS claim barred under the presumption against extraterritorial application, as it does not extensively and directly touch and concern the USA.
Foreign officials cannot claim sovereign immunity in TVPA actions alleging jus cogens violations.
Concur/Dissent: Deft is non-adventitiously a lawful permanent resident who earlier did military training in the USA, so ATS allows the claim.
http://www.ca4.uscourts.gov/Opinions/Published/141810.P.pdf
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