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.
Reference in sentencing colloquy to an ethnicity shared with the defendant was sufficiently counterbalanced by race-neutral reasoning on the subject, establishing that the court did not rely upon impermissible factors.
Incomplete brain development in the late teens and early twenties is a generic, stock argument, and not a valid mitigating factor.
Because evidence establishes a business plan for eventual profitability undercapitalization is not per se proof of being a mere instrumentality of another corporation.
As there is no culpable conduct establishing that the foreign corporation used their control over the domestic corporation to effect a fraud or wrong on the complainant, there is insufficient basis to piece the corporate veil.
Jurisdiction is proper in the district under the FRCP, since the cause of action arises under federal law, the foreign entity is not within the jurisdiction of any other state, and the exercise of jurisdiction is consistent with the US constitution and laws.
Under Fifth Amendment due process, foreign company sufficiently purposefully availed itself of the American market generally by launching the domestic company and retaining a measure of control over it. The marketing faxes at issue sufficiently relate to the purpose of these minimum contacts, even though the foreign company might not be culpable for the sending of the faxes. Asserting first US jurisdiction over the foreign company is reasonable, since there is a federal interest in the enforcement of the laws, and the plaintiff will not be able to find financial redress from the domestic corporation.
The regulation making culpable under the statute the person whose goods and services are advertised only applies to persons who have some level of knowledge that an unsolicited fax has been sent.
Consistent with agency findings, fax-to-computer transmissions are within the Act, as the receiving machine has the capacity of transcribing the image to paper.
Given proffer of eventual admissibility, the class was correctly certified using unauthenticated telephone logs, as nonexpert evidence may be sufficiently probative at the early stages of the litigation.
As the logs were generated by a machine, they were not hearsay -- hearsay requires the assertion of a person. Court correctly excluded expert testimony.
List of affected phone numbers reasonably necessitated the claims administration procedure.
In a federal class action, the court need not have personal jurisdiction over the defendant as to each plaintiff. The question of jurisdiction looks to the relationship between the defendant, the forum, and the litigation -- it does not depend on unnamed class members.
CONCURRENCE/ DISSENT:
As state courts couldn't resolve the clams of out of state class members, neither can federal courts resolve the claims of those outside its jurisdiction.
14A Determines the due process limits on federal jurisdiction under the 5A in federal court.
The statute doesn't apply to faxes received on computers, since, on its own, a computer can't receive messages from a phone line or print the fax on paper; additionally, Congress listed computers as senders, but not receivers.
Board did not abuse its discretion in discounting the value of affidavits with an attestation that didn't swear to the veracity of the affidavit, although the form used would be acceptable in an Article III court in the circuit.
Board's presumption of delivery is not so irrational as to become arbitrary, especially given the factual context, including lack of return to sender and previous successful deliveries to the address.
Four cases out of the Ninth saved for tomorrow.
Might press pause on this, as it's a bit of a time-drain, and there's a large stack of books on the desk. Basically just taking a few weeks of batting practice. Stay tuned. Or not, as the case may be.
CB
Appellate injunction limiting fee arbitrability resulting in an order form the district court on remand that further limited the arbitability to issues that had not been before the appellate court was not impermissibly modified by the order on remand. The court was free to expand the scope of its initial order.
Appellate court has no jurisdiction over a stay no longer in effect, or matters not subject to interlocutory review.
CONCURRENCE:
Arbitration statute does not empower courts to remove areas from the scope of the arbitration by means of injunction, but the parties didn't raise this defense.
A controlled buy of drugs does not become less credible in a search warrant affidavit when the agent transacts with an unrecorded intermediary, since the intermediary would have no motive to mislead the agent. Sufficient probable cause for warrant with multiple intermediary/agent controlled buys and reports of illegal weapons.
Since the ambiguity in the controlled buys was facially evident in the affidavit, no error in the denial of a Franks hearing.
Sufficient evidence for possession of contraband, given possession of contraband. Drug quantity calculation appropriately added the quantities found during multiple searches.
Since the provision in the Code authorizing appeal for discretionary release in "any case" doesn't apply to all cases, since it was added to the Code by the same law that provided for its own effective date and non-retroactivity.
Subsequent law reiterating the effective date and non-retroactivity of portions of the earlier law did not, by implication, amend the status of other parts of the earlier law.
Even with the assumption that the company's attorney was their own client when drafting the agreements, since the complaint doesn't state the necessary proximate cause and damages, the malpractice allegation doesn't state a claim.
Arbitrator's ruling on the inherent illegality of the attorney's conduct applies to the consideration of proximate cause, since, under the statute, if the conduct isn't inherently illegal, the plaintiff must establish that without the advice, the risk would not have been taken.
Declining the invitation to object to a sentence element during colloquy forfeits the challenge, resulting in plain error review; as the omission was accidental, the objection wasn't waived.
Plain error for the court to sentence to a fixed term of supervised release while stating that they believed it to be the minimum, as the duration of supervised release is a different consideration than any given condition of the release.
Claims were timely filed, as the statute of limitations did not start to run until, taking all favorable inferences, the claimant had actual knowledge of the claim or with reasonable diligence should have discovered the claim.
Allegation that plan documents did not make the effects of annuity disbursement, changes in interest rates, and possible negative effects of switching plans sufficiently clear to the average plan participant states a claim.
Despite being insufficient notice under the statute, Plan documents were not in bad faith, since they attempted to explain, compare and caution, and were multi-modal in nature, making a sufficient good-faith effort to convey the information.
Denial of compassionate release based on a single sentencing factor wasn't an abuse of discretion, since the arguments were considered, and there was a reasoned basis for the decisionmaking.
The sentence disparities referenced in the rules refer to national disparities, not disparities between sentences handed down for the same occurrences.
The investigation and fee award from the federal whistleblower retaliation proceeding invoked by the complainant are prohibited by sovereign immunity. The statute associating the receipt of federal funds with the liability is invoked by the complaint, not by the US, and it doesn't specifically mention the waiver of sovereign immunity; the explicit waiver must be in the statute, not the implementing regulation, so not to infringe the spending power of Congress.
Appellate holding that a party is a prevailing party under a statute with a compulsory fee award becomes law of the case; the district court can't then deny an award completely for lack of sufficient segregation, but must rather determine, based on the evidence at hand, the appropriate level of fees attributable to the relevant action.
Plain error for the district court to apply the law of the forum, where the choice of law provision was clear, aside from a single specific instance referencing mediation within the forum -- this instance supplies only a procedural law. Since the chosen foreign law requires all fee awards to be authorized by statute or contract, and the foreign law has no parallel fee shifting statute, error for the court to have shifted fees under the statute.
Absent a damages award or equitable or injunctive relief, prevailing party status is unavailable for purposes of a fee award, even if the court explicitly recognized the breach of the relevant obligaiton.
As it was established by the state, and has many powers that are typically characterized as government powers, such as eminent domain and bond sales, the hospital trust is within the local government antitrust immunity created by the statute.
Since, although the right was established by an earlier statute, the plaintiff's claim is made possible by a change in the defendant's obligations that was enacted by a subsequent statute; the relevant statute of limitations is therefore the statutory limit enacted after the second law, and before the second.
The appeal of the denial of the preliminary injunction wasn't severed by the transfer of the case to another court, rather the denial was merged by operation of law into the final judgment in the second forum, making the appeal in the first forum moot.
Investigation of accountancy firm did not create a situation of undue contractual influence on the taxpayers, as some had multiple advisors, and some were sophisticated business professionals; the accountancy firm notified the taxpayers of the investigation in a manner that allowed for outside advice on at least some of the relevant transactions.
For purposes of determining whether the partnership was a sham, while the correct business purpose test is distinct from the court's intent-based test, the two are not mutually exclusive, since intent is necessary to prove business purpose. The transaction had no practical economic effects other than the creation of intentional artificial tax losses.
Tax court's refusal to allow intervenor is reviewed for clear abuse of discretion, given the broad FRCP rule and the court's procedural discretion. Denial of intervention of right or denial of permissive intervention would both have been appropriate, given the existing representation of interests.
Claim of actual innocence after a witness recantation that resulted in a perjury conviction for the witness was not adjudicated by state courts unreasonably. Since a thorough review of the facts and the state record establish that no relief is warranted, the question of whether a freestanding claim of actual innocence is cognizable in non-capital federal Habeas proceedings need not be answered.
Plaintiff's clam that rudeness was gender-based is unsubstantiated by the record. Two confrontations and a hostile encounter do not suffice for a constructive discharge claim under the statute. A record reflecting resignation from the position precludes a sufficient showing for retaliatory discharge or gender discrimination. While a work assignment might have sufficed for retaliation, sufficient causation wasn't established.
Insufficient proof for Monell claim against municipality arising from police bodycam appearing to remotely activate when inside the plaintiff's house, given technical evidence and lack of showing that there's a general policy to surreptitiously record off-duty officers.
Company's plant to pay employees who stay until the end of a project a bonus is akin to a severance scheme, but does not have the administrative complexity characteristic of an ERISA plan, and is therefore outside the reach of the statute, and of the federal courts.