FCRA
Commercial real estate transaction nixed by inaccurate reporting was not within the scope of the Act.
Insufficient proof that personal real estate transaction was lost because of the false information.
Uncorroborated assertion that doctors were consulted was insufficient for emotional distress.
Karen Bacharach v. Suntrust Mortgage, Inc.
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.
Fourth Circuit: Solers, Incorporated v. IRS
FOIA
Trial court in camera review meant that the agency didn't have to make a showing on all of the common-law elements adjudicating the withholding of documents.
No abuse of discretion on merits, given thought-process excepetion, etc.
Solers, Incorporated v. IRS
Fourth Circuit: Raleigh Wake Citizens Assoc v. Wake County Board of Election
Elections, OPOV
Where the redistricting population variation is less than 10%, the plaintiff must show by a preponderance of the evidence that improper considerations predominate in the explanation.
Error to exclude expert statistical testimony. Although it is not compelled by precedent, it would serve to identify possible explanations for the mapping.
Plan violated state & federal OPOV given lack of testimony from legislatures, pretextual justifications for the shifts, and demonstration that traditional redistricting practices were not followed.
No abuse of discretion in trial court's holding that references to race in the legislative record did not establish improper racial motive.
Dissent -- if abusive partisanship is justicable, it has to be specifically proven, not suggested by statistics.
Raleigh Wake Citizens Assoc v. Wake County Board of Election
Where the redistricting population variation is less than 10%, the plaintiff must show by a preponderance of the evidence that improper considerations predominate in the explanation.
Error to exclude expert statistical testimony. Although it is not compelled by precedent, it would serve to identify possible explanations for the mapping.
Plan violated state & federal OPOV given lack of testimony from legislatures, pretextual justifications for the shifts, and demonstration that traditional redistricting practices were not followed.
No abuse of discretion in trial court's holding that references to race in the legislative record did not establish improper racial motive.
Dissent -- if abusive partisanship is justicable, it has to be specifically proven, not suggested by statistics.
Raleigh Wake Citizens Assoc v. Wake County Board of Election
Third Circuit: Candice Staruh v. Superintendent Cambridge
FRE, Hearsay, Habeas, AEDPA
Refusal to allow hearsay evidence of admission of guilt by a family member of the deft was not contrary to or an unreasonable application of constitutional law, as there were insufficient indicia of reliability and the speaker had an incentive to mislead the court.
Candice Staruh v. Superintendent Cambridge
First Circuit: Winkelman v. CVS Caremark Corporation
FCA, FRCP
Documents that the court of first instance took judicial notice of on the assumption that the Act's public disclosure bar was jurisdictional are properly considered in appellate review, even when the review declines to construe the bar as jurisdictional.
Public disclosure of price gouging sufficed to trigger public dislosure bar for relator asserting claim that that the vendor engaged in a scheme to defraud, despite relator's disclosure of increased temporal and geographic scope.
Winkelman v. CVS Caremark Corporation
First Circuit: Sullivan v. Marchilli
Souter, Habeas, Crim
State court did not unreasonably apply federal law on the issue, as the allegedly vague prohibition is found in the federal caselaw as well.
Due Process argument that the court would not have determined the image to fall within the statute if the proper First Amendment limits had been followed is irrelevant, since the state appellate review did not unreasonably apply the governing law.
Sullivan v. Marchilli
State court did not unreasonably apply federal law on the issue, as the allegedly vague prohibition is found in the federal caselaw as well.
Due Process argument that the court would not have determined the image to fall within the statute if the proper First Amendment limits had been followed is irrelevant, since the state appellate review did not unreasonably apply the governing law.
Sullivan v. Marchilli
Eighth Circuit: United States v. Kaylo Roelandt
Fourth Amendment
Given police knowledge of gang affiliation, past felony conviction, and likelihood of retaliatory shootings in the area due to a recent shooting (in addition to, apparently, a CI tip), furtive behavior sufficed for a Terry stop.
United States v. Kaylo Roelandt
Eighth Circuit: Patrick A. Dadd v. Anoka County
Prisons, S1983
Deliberate indifference suit states a claim where arresting officers and jail personnel were told of recent dental surgery but withheld pain relievers. There is no implicit passage-of-time requirment for deliberate indifference claims.
As the timing-based assertion of qualified immunity was nonfrivolous, the other arguments won't be sanctioned.
Patrick A. Dadd v. Anoka County
Sixth Circuit: USA v. Ryan Collins - Northern District of Ohio at Akron
Sentencing
Post-verdict jury poll as to appropriate sentence was not an inappropriate factor in sentencing judge's decision.
Sentence was not substantively unreasonable.
USA v. Ryan Collins - Northern District of Ohio at Akron
Fifth Circuit: Hartford Casualty Insurance Co, et al v. DP Engine
Insurance
Under state law, no duty to defend if the policy excludes professional services and all of the actions described in the complaint require professional training.
Given the many theories of harm and recovery, error to rule that duty to defend was coeval with duty to indemnify.
Counterclaims relied on duty to defend.
Hartford Casualty Insurance Co, et al v. DP Engine
Second Circuit: In re Payment Card Interchange Fee and Merchant Discount Antitrust
Class Actions
Error to certify a class as settlement-only where injunctive and monetary remedies sought created conflicting interests. Counsel had little incentive to zealously fight for injunctive component, given fee distribution, and class members could not opt-out.
Settlement agreement a nullity. [Rather a lot of money.]
In re Payment Card Interchange Fee and Merchant Discount Antitrust
First Circuit: Baker v. Harrington
Legal Ethics, Bankruptcy
Misleading characterization of statute and precedent calculated to delay the proceedings is an impermissible artifice of zeal.
Sanction of having to enroll in a Legal Ethics course upheld.
Baker v. Harrington
First Circuit: Worcester v. Springfield Terminal Railway
FRCP, Erie
In determining when the clock is tolled for filing of an appeal, the critical question is whether the court is involved in ending the last motion filed. A motion filed and withdrawn without court involvement does not toll the limit, but a motion filed and then withdrawn in a telephone colloquy stops the clock.
No error in use of common law standard where federal statute had no standard for punitive damages as opposed to borrowing state law standard, given legislation's intent of standardizing the remedy and the background principles of common law against which Congress legislates.
Worcester v. Springfield Terminal Railway
First Circuit: Rivera-Rivera v. US
Ineffective Assistance, Interstate Commerce
No ineffective assistance in lack of objection to interstate commerce element to mall robbery, as subsequent appellate review said that the trial court ruling would have been upheld in de novo review
Dissent -- In dicta.
Rivera-Rivera v. US
Federal Circuit: WELLS FARGO & COMPANY v. US
Tax
Given the background of merger law against which the rules were set, historical tax overpayments and underpayments of companies composed of merged entities can be considered as a single amount, so long as no amounts are offset which were incurred by two companies which both had a distinct existence at the time of the payments.
(Reminder, as always, quick paraphrase of court on matter of public concern -- don't rely.)
WELLS FARGO & COMPANY v. US
Given the background of merger law against which the rules were set, historical tax overpayments and underpayments of companies composed of merged entities can be considered as a single amount, so long as no amounts are offset which were incurred by two companies which both had a distinct existence at the time of the payments.
(Reminder, as always, quick paraphrase of court on matter of public concern -- don't rely.)
WELLS FARGO & COMPANY v. US
Tenth Circuit: Nelson v. United States
Torts, FTCA
So long as the relevant acts of the landowner were purposeful, implicit invitation to use land for recreation can be imputed, even where the landowner subjectively believes the visitor to be a trespasser.
Willful or malicious conduct is best determined by the finder of fact, not on appeal.
Nelson v. United States
So long as the relevant acts of the landowner were purposeful, implicit invitation to use land for recreation can be imputed, even where the landowner subjectively believes the visitor to be a trespasser.
Willful or malicious conduct is best determined by the finder of fact, not on appeal.
Nelson v. United States
Ninth Circuit: USA V. NICHOLAS LINDSEY
Fraud
Where a lender requests specific information, the information provided is considered material to the lender's deliberations.
USA V. NICHOLAS LINDSEY
Where a lender requests specific information, the information provided is considered material to the lender's deliberations.
USA V. NICHOLAS LINDSEY
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