Seventh Circuit: Board of Trustees of the Autom v. Full Circle Group, Inc.

Posner, Successor liability

Where a sophisticated buyer acquires a company and there is a genuine issue of continuity of business, the hypothetical nature of a funded pension liability exit payment at the time of acquisition is not sufficient for summary judgment for lack of liability.

Alter ego liability requires fraud.  Probably.


Board of Trustees of the Autom v.   Full Circle Group, Inc.

Seventh Circuit: John Otrompke v. Bradley Skolnik

Posner, Free Speech, Standing


Candidate for admission to the state Bar has no standing to preemptively challenge a an allegedly unconstitutional provision of the rules, since the Bar might decide not to unconstitutionally enforce it.


John Otrompke v.   Bradley Skolnik

Seventh Circuit: Jaded Martinez v. Peter Cahue

Hague Act

Where a parent potentially has rights under state law, but the former spouse's removal of the child to a foreign country was lawful, the emigrating parent may invoke the foreign statute's mandate that the child be returned there after temporarily returning to the state.

Jaded Martinez v.   Peter Cahue

Sixth Circuit: USA v. Ricky Brown

Fourth Amendment

Canine alert on a car and a general reputation of the suspect are insufficient basis for a warrant for the home.

Where the affidavit advances no relevant facts with respect to the residence, the good faith exception is precluded.
 

USA v. Ricky Brown

Sixth Circuit: USA v. Ralph Dennis

ERISA

Health care providers have no direct standing under the Act.

Assignment of the right to payment is sufficient to guarantee derivative standing under the Act.

Where a provider and an insurer have a post-reimbursement recoupment agreement and reversal of payment is not subsequently passed back to the customer, a provider's claim that the insurer has recouped covered costs doesn't state a claim under the Act, since the insured customer is not affected by the question.

 Circuit split hinted at.

USA v. Ralph Dennis

Third Circuit: USA v. Ralph Dennis

Entrapment

Although the government's actions considered individually would not justify the entrapment instruction, where the investigation goes beyond providing the simple menas for committing the crime, their actions should be considered cumulatively.

Past narcotics convictions can establish separate predisposition for those counts.

 OUtrageous prosecution requires conduct substantially beyond entrapment.


USA v. Ralph Dennis

Second Circuit: MPC Franchise, LLC v. Tarntino

Trademarks

The requisite level for scienter under the Lanham Act for fraudulent patent applications is actual knowledge of a competitor's use of the mark.

MPC Franchise, LLC v. Tarntino

Federal Circuit: Per Aarsleff A/S v. US

[Opinion issued under seal. Redacted version to follow.]



  Per Aarsleff A/S v. US

DC Circuit: Carlos Alexander v. WMATA

Discrimination

In considering, for purposes of the statute, whether someone is disabled, courts must also consider whether the employer regarded the person as either having that disability or having a record of that disability.

Under the statute, discretionary administrative exhaustion tolls the borrowed statute of limitations.


Carlos Alexander v. WMATA

DC Circuit: Jeffrey Swaters v. DOT

Administrative

Agency refusal to release specimen from drug test is consistent with regulations, and neither the denial nor the regulation are arbitrary/capricious, given policy objectives.

No constitutional error from denial of discovery.

Jeffrey Swaters v. DOT

DC Circuit: Chris Stovic v. RRRB

Railroads retirement

Act gives courts APA jurisdiction over denials of requests to reopen.

Denial on merits here.


Chris Stovic v. RRRB

DC Circuit: USA v. Juan Vega

Crim

Stream of commerce suffices for circumstantial evidence that deft intended cocaine to reach US.

Sufficient instruction on mens rea.

Urging in closing that jury serve as community conscience and use of first person singular was harmless error, given strength of case.

 False testimony not later corrected by govt was not dispositive.

Not issuing missing evidence instruction on lack of govt records on out of court photo lineups was harmless error.

No Brady violation on late-disclosed photo with attribution problems.

No error in refusal to admit notes frm quesitoning as prior inconsistent statement.

Error in manager/supervisor sentencing bump, as no showing that employees knew they were doing something illegal.

No error in admission of mistaken identification, given curative instruction.

Deft claim that Title III has no extraterritorial application, even if true, would not preclude extraterritorial wiretapping.

No error in denial of cross on why cooperating witnesses were wearing electronic monitoring devices.

Drug making video not overly prejudicial.



USA v. Juan Vega

Ninth Circuit: MK Hillside Partners v. CIR

Tax, Estoppel

Provision in statute giving tax court authority to consider a relevant statute of limitations for individual members of a partnership empowers the court to rule that the statute of limitations has not run at the partnership level.

 No judicial estoppel, as the positions aren't inconsistent.



MK Hillside Partners v. CIR

Ninth Circuit: USA v. Steven Grovo

Crim, Conspiracy

Given the general mens rea of conspiracy, asynchronous contact on computer bulletin board suffices for actions "in concert" as required by the statute.

Active participation on a bulletin board suffices to prove furtherance of the board's common goal.

Communication with a closed community can constitute advertisement.

Where victim was harmed by both image and subsequent viewing of image, restitution must be disaggregated.


 USA v. Steven Grovo

Eighth Circuit: United States v. Yousef Qattoum

Crim.

No abuse of discretion in denial of motion to withdraw plea of guilty, as the deft was likely aware of illegal nature of conduct since he had, among other things, been arrested for it previously.

Use of money orders created a tacit understanding of conspiracy to launder money sufficient that there was no plain error in denial of motion to withdraw guilty plea.

United States  v.  Yousef Qattoum

Eighth Circuit: Bonnie Dick v. Dickinson State University

Torts.

State statute of limitations appropriately borrowed.

A claim alleging a denial of reasonable accommodation is a discrete instance, one that does not require a comprehensive review of the history.

Insufficient factual basis for adverse employment action claim.

Evidence outside of the statute of limitations period does not create a genuine issue of material fact for purposes of summary judgment.

Bonnie Dick  v.  Dickinson State University

Seventh Circuit: ACF 2006 Corp v. Timothy Devereux

Easterbrook, Contract, Fees

Quantum meruit adjustment to factual findings at trial.

Funds held in a non interest bearing (IOLTA) account are not subject to prejudgment interest.  (Possibly.  Confusing.)

Victims of lawyer's taking of client funds while practicing in an LLC have a priority claim over a later-erfected secured interest.


ACF 2006 Corp v. Timothy Devereux

Seventh Circuit: John H. Germeraad v. Myrick J. Powers

Bankruptcy, FRCP, Mootness

A denial of a trustee's motion to modify is analogous to a 12(b)6 dismissal, and is therefore sufficiently final for appeal when not attributable to a technical defect.

Just as 60(b) motion might be filed again with a different theory, the fact that the trustee might file several motions does not affect their finality for purposes of review.

As the proposed change would relate back to the filing date of the motion, the expiration of the plan's timeframe doesn't make the controversy moot.  The fact that denial of discharge is an equitable decision does not affect mootness.

So long as the motion to modify the plan is filed during the pendency of the plan, it is timely.

Although nothing in the Code authorizes a postconfirmation modification to account for increased income, the decision is an equitable one suggested by the purposes of the Code, and is not subjet to any "good faith" requirement.


John H. Germeraad v.   Myrick J. Powers

Sixth Circuit: Gianni-Paolo Ferrari v. Ford Motor Company

Discrimination

As safe employment could be found at the plant, iatrogenic opiod use did not impede the major life activity of working.

No genuine issue of material fact as to whether medical restrictions were pretextual, as the medical evidence is corraborated, and there is no proof that the decisionmakers had reason to doubt the medical opinion.

Insufficient causation for FMLA retaliation claim.

Gianni-Paolo Ferrari v. Ford Motor Company

Fifth Circuit: USA v. Derrick Wheaten

AEDPA, Habeas

Untimely Certiorari petition filed with Supreme Court that is denied without sign that the lateness has been excused does not reset the statutory deadline for filing a subsequent Habeas petition.  Circuit footnote suggesting otherwise dicta.

Missed deadline by counsel in direct review did not constitute abandonment, as petitioner was timely notified of the late filing and sent a Habeas pamphlet.

Incorrect telephone guidance by Supreme Court clerk didn't cancel the fact that petitioner was on notice of the deadline.


USA v. Derrick Wheaten