Fourth Circuit: Diana Mey v. DIRECTV, LLC

 Subsidiary user on a cell phone plan is bound by arbitration agreement referenced in electronic signature at time that the subsidiary purchased the extended service.

Contra proferentum notwithstanding, the arbitration agreement's incorporation of successors and assigns and the inherently durational nature of the contract mean that after-acquired subsidiaries are parties to the arbitration agreement.

Present dispute is within the scope of the arbitration agreement, given the statutory presumption for arbitration and the terms of the agreement compelling arbitration of all disputes and claims between the parties.

Diana Mey v. DIRECTV, LLC 

Second Circuit: Sprague v. Salisbury Bank & Tr. Co.

 

Consumer's right of action under the credit reporting statute arises through notification of the reporting agency, so a consumer's direct notification of a bank of an error in the report does not suffice to state a claim arising from the bank's statutory duty not to provide inaccurate information.

Sprague v. Salisbury Bank & Tr. Co.

Second Circuit: Osen LLC v. United States Central Command

Prior military FOIA disclosures about specific incidents did not generically waive withholding about similar incidents; the waiver doctrine requires that the waiving disclosure be identical in both specificity and matter, and different incidents are inherently different matters.

Although the military cannot, under a mosaic theory,  withhold disclosures of large amounts of data, but the disclosure is justified where the military contends that each element of the mosaic (each disclosure) might provide information about critical vulnerabilities.

Osen LLC v. United States Central Command

First Circuit: Common Cause Rhode Island v. RI Republic Party

As the state's attestation requirements for mailed-in votes is only imposed in a few states, and the state has not advanced any interest behind it, lower court's entry of consent judgement abrogating the requirement should not be stayed.  The elevated standard for stays close to an election is met, as the last election didn't have the requirement, and the state hasn't suggested that it would confuse voters.  Political party has standing to intervene for the purposes of the pending appeal.

Common Cause Rhode Island v. RI Republic Party

First Circuit: T-Mobile Northeast LLC v. The Town of Barnstable

 

"...a salmagundi of affirmative defenses."

Grounds for denial of intervention of right (or, in the alternative, permissive) did not have to be extensively described by the court -- the decision is reviewed for abuse of discretion in light of the record.

No abuse of discretion of denial of intervention of right by citizens attempting to stop cell-phone tower on church steeple where it is apparent that the existing parties will attempt to vindicate the specific statutory protections that the citizens intended to raise; the litigation strategy of the existing parties doesn't enter into the calculus.

No abuse of discretion in denial of permissive intervention, as existing parties would raise the smae issues, the putative intervenors had no cause of action under state law, and it's really important to build cell phone towers quickly.

 T-Mobile Northeast LLC v. The Town of Barnstable

Brief hiatus

Good to get back into the batting cage for a few days after finishing the dissertation.  As there are some other matters arising in the coming week, this will be, at minimum, the last update of the week.  Cheers.

-CB

Eleventh Circuit: Leon Carmichael, Sr. v. USA

Petitioner suffered no prejudice from ineffective assistance of counsel in handling a 10 year plea deal as opposed to the 40 years eventually imposed, since there was no guarantee that the deft would accept, given his desire for a firm offer, and the terms of "super cooperation" were vague enough that the parameters of deft's obligations were unclear, and the expectations of the govt could not be defined before entering into the material cooperation and determining the capacity of the deft to assist.  

Sufficient evidence in record that deft might not have accepted the offer of 20 years; consultations  with counsel were after the fact.  General post-trial and totality claims similarly insufficiently supported.

Leon Carmichael, Sr. v. USA

Tenth Circuit: Frappied v. Affinity Gaming Black Hawk

Mixed claims sounding in both gender and age are cognizable under Title VII.

Clam sufficiently states the age and gender claim by reciting the gender of the plaintiffs and that they are older than 40.

~96% chance of firings being non-random across age and gender suffices to create a plausible inference of discrimination.

Even given the statistical possibility of discrimination, no facts raising an inference of discrimination on the basis of gender were pleaded, so the non-random employment actions are susceptible of other explanations.

Given statistical analysis of terminations and the demographics of the new employees hired, the suit states a claim for disparate impact under the ADEA.

Median ages of terminated and new employees suffice to state a claim for disparate treatment under the ADEA, but employer met the burden of producing a nondiscriminatory basis.  Sufficient issue for trial on whether these post-hoc rationales were pretextual.

Frappied v. Affinity Gaming Black Hawk

Tenth Circuit: Zahourek Systems v. Balanced Body University

There is a genuine dispute for trial as to whether the anatomical model is a useful article under the copyright law, since the question is not the tactile uses to which it might be put in an educational context, but rather whether its usefulness arises from the fact that it correctly depicts the human frame.

Zahourek Systems v. Balanced Body University

Ninth Circuit: Gonzalo Dominguez v. William Barr

State drug statute criminalizing manufacture and delivery is divisible, as the two are different elements, not different means.

Under modified categorical review, the statute is a valid predicates, since the state's inclusion of "conversion" in the definition of drug manufacture overlaps the federal definition of "production."

Board's adjudication took sufficient consideration of the particulars of the case.

Issue of defective notice, promptly remedies, was not jurisdictional.

Gonzalo Dominguez v. William Barr

Ninth Circuit: Linda Larson v. Andrew Saul

Skidmore deference to agency determination that military employment in the civilian sector is not within a SSA exception for wages earned wholly through military service.  Circuit split flagged.

Linda Larson v. Andrew Saul

Ninth Circuit: Michael Peirce v. Douglas Ducey

State citizen has insufficient concrete or personal harm to challenge state constitutional reallocation of assets held in trust by the state, claiming that the constitutional amendments violate the terms of the trust as defined in the federal enabling legislation.

The voluntary cessation to mootness would not apply in such a case if Congress were to ratify the change, since the alleged transgressor is the state, not the federal government.

Although there is insufficient basis for a private right of action under the federal statute, the bar is not necessarily a jurisdictional one.

Michael Peirce v. Douglas Ducey

Ninth Circuit: Skyline Wesleyan Church v. Ca. Dept. of Managed Health Care

Amended Op.

Skyline Wesleyan Church v. Ca. Dept. of Managed Health Care

Seventh Circuit: Dawn Hanson v. Chris LeVan

Allegations of politically motivated dismissal state a claim where bias is credibly alleged, and according to statute and practice, the position involved access to neither policymaking deliberations nor the politically sensitive work of the elected official.

To state a claim of a clearly established right, there is an important distinction between a murky area of the law and a well-developed but complex area of the law -- the latter allows an easier inference at the pleading stage.

Dawn Hanson v. Chris LeVan

Seventh Circuuit: USA v. Robert Hosler

Sufficient evidence of enticement under the statute where statements seem to provoke the illegal conduct -- there is no requirement that the victim's will has to be overcome.

USA v.  Robert Hosler

Seventh Circuit: USA v. Elleck Christopher Vesey

Although the state offense serving as an ACCA predicate is divisible, either prong would require that the victim be close enough to have the prospect of imminent physical harm, making the state crime a valid predicate due to its elements.  General intent crimes can serve as predicate offenses.

USA v.  Elleck Christopher Vesey

Sixth Circuit: United States v. Raheim Trice

Deft's subjective expectation that the unlocked common hallway outside his apartment door was within the curtilage of his residence was objectively unreasonable, as deft had insufficient control over the space.

Placement of a hidden camera on the hallway wall opposite the deft's door did not violate the right to privacy, as it only recorded when the deft's door was opened, only short clips of video were filmed, and the deft would not have had the power to exclude law enforcement from being there and observing the same acts, even for extended periods.

United States v. Raheim Trice

Fifth Circuit: Kevin Santos-Alvarado v. William Barr, U. S. Atty

Petitioner's explanations of inconsistencies in testimony are reasonable, but they do not compel a finding that the Immigration judge's finding of adverse credibility was one that no reasonable jurist would make.

IJ's bar on telephonic testimony didn't violate due process, as the testimony wouldn't have been dispositive, and the IJ reviewed the witness' written statement.

Kevin Santos-Alvarado v. William Barr, U. S. Atty

Fifth Circuit: USA v. Herman Sanders, et al

Insufficient basis for Habeas on Ineffective Assistance, as the prejudice from the undiscovered evidence of trauma, illness, and coercion would not have caused a single reasonable juror to change their penalty phase vote, given past threats of violence, and incriminating letters offered at trial.

Dissent:  

Quoting state penalty phase closing:  “It’s an incredibly sad tribute that when a man’s life is on the line, about the only good thing we can say about him is he’s a good artist.” 

State waived AEDPA bar on new evidence in federal collateral challenge.

Precedent on reasonable probability isn't tied to the facts of each case -- they don't present a minimum threshold for the showing.

Substantial argument that deft killed only under threat of his own death.

USA v. Herman Sanders, et al

Fifth Circuit: USA v. Charles Davis

On  SCtUS  remand for plain error review -- although the deft didn't forfeit the challenge to the imposition of concurrent statutes, the acts were arguably dissimilar and irregular enough to avoid the statute's scope, and the temporal link is thin, ergo: no abuse of discretion in imposition or level of explanation of concurrent sentences.

USA v. Charles Davis