Really, a city that never sleeps should have some 24 hour coffeehouses. #itsleeps
Only 1 & 2 covered tonight. More in 5-10 and Federal Circuit. Cheers.
-CB
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.
Second Circuit: Olagues v. Perceptive Advisors LLC
Defts were no longer corporate insiders for the purposes of the statute when the options expired, since regardless of whether the regulations imposed an earlier constructive time cutoff for the expiration of the option, the plain meaning of the statute, which is to be favored for the ease of mechanical implementation, refers to the actual expiration time of the option.
http://www.ca2.uscourts.gov/decisions/isysquery/e893b2c5-2f54-4145-a8ca-90ff73122a40/2/doc/17-2703_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e893b2c5-2f54-4145-a8ca-90ff73122a40/2/hilite/
http://www.ca2.uscourts.gov/decisions/isysquery/e893b2c5-2f54-4145-a8ca-90ff73122a40/2/doc/17-2703_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e893b2c5-2f54-4145-a8ca-90ff73122a40/2/hilite/
Second Circuit: United States v. Le
Acquisition of biological toxin through the Internet and the mails is fundamentally different than the local use of a similarly proscribed substance, so a statute need not be construed to avoid offending the police power of the states.
Even within such a narrowing construction, acquisition of this substance would be within the plain proscription of the federal statute.
Law implementing international convention is constitutional under the Commerce Clause.
http://www.ca2.uscourts.gov/decisions/isysquery/e893b2c5-2f54-4145-a8ca-90ff73122a40/1/doc/16-819_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e893b2c5-2f54-4145-a8ca-90ff73122a40/1/hilite/
Even within such a narrowing construction, acquisition of this substance would be within the plain proscription of the federal statute.
Law implementing international convention is constitutional under the Commerce Clause.
http://www.ca2.uscourts.gov/decisions/isysquery/e893b2c5-2f54-4145-a8ca-90ff73122a40/1/doc/16-819_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e893b2c5-2f54-4145-a8ca-90ff73122a40/1/hilite/
First Circuit: Aguilar de Guillen v. Sessions
Immigration judge's finding that the persecution was economic in nature was not clearly erroneous in forgoing analysis of secondary and mixed motives, as the record indicates that mixed motives were considered, and nothing in the record suggests that either the judge or the agency understood the finding of economic motive to preclude a finding of secondary or mixed motives.
A social group of single mothers who cannot move from their region is insufficiently particular for consideration of the possibility of future persecution.
Bare claim that agency's data is dated is insufficient to make it arbitrary or capricious absent a showing of changed conditions.
http://media.ca1.uscourts.gov/pdf.opinions/17-2095P-01A.pdf
A social group of single mothers who cannot move from their region is insufficiently particular for consideration of the possibility of future persecution.
Bare claim that agency's data is dated is insufficient to make it arbitrary or capricious absent a showing of changed conditions.
http://media.ca1.uscourts.gov/pdf.opinions/17-2095P-01A.pdf
First Circuit: Gustavsen v. Alcon Laboratories, Inc.
Plaintiffs challenging design of medication container allege sufficient monetary loss for standing, given the possibility that the market will pass along some savings from a redesigned container to the consumer, and the fact that the present design operates as a surcharge.
Statute with a discrete list in the first subpoint and a list of qualitative factors in the second subpoint encompasses anything that corresponds to the qualitative factors, whether or not in the first subpoint.
Where an agency's sporadic rulemaking or adjudication is in tension with clearly considered regulatory guidance, less deference is due to the former.
http://media.ca1.uscourts.gov/pdf.opinions/17-2066P-01A.pdf
Statute with a discrete list in the first subpoint and a list of qualitative factors in the second subpoint encompasses anything that corresponds to the qualitative factors, whether or not in the first subpoint.
Where an agency's sporadic rulemaking or adjudication is in tension with clearly considered regulatory guidance, less deference is due to the former.
http://media.ca1.uscourts.gov/pdf.opinions/17-2066P-01A.pdf
End of day
More:
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Time=week&FromMonth=&FromDay=&FromYear=&ToMonth=&ToDay=&ToYear=&Author=any&AuthorName=&Case=any&CaseY1=&CaseY2=&CaseN1=&CaseN2=&CaseN3=&CaseN4=&Submit=Submit&RssJudgeName=Wood&OpsOnly=yes
http://media.ca8.uscourts.gov/cgi-bin/TodayOpn.pl
https://www.ca9.uscourts.gov/opinions/?pk_id=0000009531
https://www.ca10.uscourts.gov/clerk/opinions/daily
https://www.cadc.uscourts.gov/internet/opinions.nsf
http://www.cafc.uscourts.gov/opinions-orders
(NB all are dynamic links, and therefore potentially misleading.)
-CB
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Time=week&FromMonth=&FromDay=&FromYear=&ToMonth=&ToDay=&ToYear=&Author=any&AuthorName=&Case=any&CaseY1=&CaseY2=&CaseN1=&CaseN2=&CaseN3=&CaseN4=&Submit=Submit&RssJudgeName=Wood&OpsOnly=yes
http://media.ca8.uscourts.gov/cgi-bin/TodayOpn.pl
https://www.ca9.uscourts.gov/opinions/?pk_id=0000009531
https://www.ca10.uscourts.gov/clerk/opinions/daily
https://www.cadc.uscourts.gov/internet/opinions.nsf
http://www.cafc.uscourts.gov/opinions-orders
(NB all are dynamic links, and therefore potentially misleading.)
-CB
Sixth Circuit: Loren Robinson v. Jeffrey Woods
A sentencing scheme relying in part on questions decided as a matter of law by the judge violates the right to a trial by jury; where the scheme sets a mandatory minimum beneath a fixed statutory maximum, the system is sufficiently determinate to be subject to Sixth Amendment scrutiny.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0188p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0188p-06.pdf
Sixth Circuit: Ky. Emps. Ret. Sys. v. Seven Ctys. Servs., Inc.
Community mental health center is not a government instrumentality, since it was not started by the government, its leadership isn't selected by the government, and the government doesn't have the power unilaterally to terminate it.
Question certified on the basis of the relationship withe the state employees retirement system.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0186p-06.pdf
Question certified on the basis of the relationship withe the state employees retirement system.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0186p-06.pdf
Second Circuit: United States v. Santillan
Traffic stop was reasonably prolonged after suspects were nervous and unable to explain where they were coming from.
Admission of statements arising from a discovery of money during patdown later admitted as inevitable discovery was harmless error.
Being placed in the back seat of the police car insufficiently custodial to require Miranda warning.
Passenger in car without a close relationship to the driver does not have a legitimate expectation of privacy in the area around the passenger's seat, and therefore cannot object to a search.
Dissent: Generalized nervousness and presence of energy drinks are not a cause for suspicion; race is occasionally a factor; driver is not required to tell police where they are driving from.
http://www.ca2.uscourts.gov/decisions/isysquery/b4d152a6-657c-4289-90dd-6ee87159ebe1/2/doc/16-1112com_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/b4d152a6-657c-4289-90dd-6ee87159ebe1/2/hilite/
Admission of statements arising from a discovery of money during patdown later admitted as inevitable discovery was harmless error.
Being placed in the back seat of the police car insufficiently custodial to require Miranda warning.
Passenger in car without a close relationship to the driver does not have a legitimate expectation of privacy in the area around the passenger's seat, and therefore cannot object to a search.
Dissent: Generalized nervousness and presence of energy drinks are not a cause for suspicion; race is occasionally a factor; driver is not required to tell police where they are driving from.
http://www.ca2.uscourts.gov/decisions/isysquery/b4d152a6-657c-4289-90dd-6ee87159ebe1/2/doc/16-1112com_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/b4d152a6-657c-4289-90dd-6ee87159ebe1/2/hilite/
Second Circuit: United States v. Hoskins
Appellate courts have statutory jurisdiction over interlocutory appeals of dismissals of significant parts of individual counts charged, together with pendent jurisdiction over any preliminary rulings inextricably intertwined.
Foreign nationals operating abroad who are not agents of US companies form a discrete class of persons which Congress deliberately excluded from the Act; US conspiracy law does not apply to foreign nationals violating the act abroad without a connection to a US interest, given the presumption against extraterritorial application.
Concur: The principles underlying the presumption against extraterritorial application and legislative history establishes this, but Congress should revisit.
http://www.ca2.uscourts.gov/decisions/isysquery/b4d152a6-657c-4289-90dd-6ee87159ebe1/1/doc/16-1010comb_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/b4d152a6-657c-4289-90dd-6ee87159ebe1/1/hilite/
Foreign nationals operating abroad who are not agents of US companies form a discrete class of persons which Congress deliberately excluded from the Act; US conspiracy law does not apply to foreign nationals violating the act abroad without a connection to a US interest, given the presumption against extraterritorial application.
Concur: The principles underlying the presumption against extraterritorial application and legislative history establishes this, but Congress should revisit.
http://www.ca2.uscourts.gov/decisions/isysquery/b4d152a6-657c-4289-90dd-6ee87159ebe1/1/doc/16-1010comb_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/b4d152a6-657c-4289-90dd-6ee87159ebe1/1/hilite/
First Circuit: US v. Rivera-Berrios
Where the present offense prompted the revocation of an earlier parole, federal law requires that the criminal history of the deft for the present sentencing rates the earlier conviction at its post-revocation level.
Substantively, the sentence was within the encincture of the court's discretion.
http://media.ca1.uscourts.gov/pdf.opinions/17-1212P-01A.pdf
Substantively, the sentence was within the encincture of the court's discretion.
http://media.ca1.uscourts.gov/pdf.opinions/17-1212P-01A.pdf
Fifth Circuit: USA v. Raylin Richard
Plea bargain appeals waiver bars challenge to element of crime charged in bill of information; a guilty plea to the bill with a factual resume concedes all elements of conviction.
Sentence increase for causing victim to engage in certain behavior does not require that the victim is conscious of engaging in the behavior.
Sentence increase for obstruction justified when the obstruction is in a closely related matter.
http://www.ca5.uscourts.gov/opinions/pub/17/17-30654-CR0.pdf
Sentence increase for causing victim to engage in certain behavior does not require that the victim is conscious of engaging in the behavior.
Sentence increase for obstruction justified when the obstruction is in a closely related matter.
http://www.ca5.uscourts.gov/opinions/pub/17/17-30654-CR0.pdf
Third Circuit: Edward Mitchell v. Superintendent Dallas SCI
Although co-deft was correctly granted the writ on question of severance at trial, a subsequent change in the law has established that there was no confrontation clause issue requiring severance, and since the present petitioner is not being held in violation of the law, Habeas would not run.
http://www2.ca3.uscourts.gov/opinarch/173118p.pdf
http://www2.ca3.uscourts.gov/opinarch/173118p.pdf
Second Circuit: HealthBridge Management, LLC v. National Labor Relations Board
Given the evidence that the move was an attempt to avoid obligations under the CBA, employer's shift of a group of employees to a subcontractor was simply a disguised continuance of the business, and the protections of the CBA continued, whatever the technical employment status of the employees.
Holiday time-and-a-half provision of CBA not limited by parallel provision granting holiday pay to certain classes of workers; plain meaning and course of performance establish this.
CBA counts lunch half-hour as time actually worked, as it is compensated.
http://www.ca2.uscourts.gov/decisions/isysquery/d47790dc-6fa3-4dbe-a24f-0ca686fe2fbe/1/doc/17-934_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d47790dc-6fa3-4dbe-a24f-0ca686fe2fbe/1/hilite/
Holiday time-and-a-half provision of CBA not limited by parallel provision granting holiday pay to certain classes of workers; plain meaning and course of performance establish this.
CBA counts lunch half-hour as time actually worked, as it is compensated.
http://www.ca2.uscourts.gov/decisions/isysquery/d47790dc-6fa3-4dbe-a24f-0ca686fe2fbe/1/doc/17-934_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d47790dc-6fa3-4dbe-a24f-0ca686fe2fbe/1/hilite/
First Circuit: Harry, Jr. v. Countrywide Home Loans, Inc.
Fraud that voids a transaction ab initio does not toll or waive the relevant statute of limitations for actions to claiming fraud that voids a transaction ab initio.
Tolling a statute of limitations due to fraudulent concealment requires a threshold showing of due diligence by the movant, which can be disproved by delays in filing.
Acceleration of a mortgage note does not affect the time limits under state law on the right to foreclose.
Mortgagor does not have a private right of action against mortgagee under state mortgage licensing law.
http://media.ca1.uscourts.gov/pdf.opinions/16-2380P-01A.pdf
Tolling a statute of limitations due to fraudulent concealment requires a threshold showing of due diligence by the movant, which can be disproved by delays in filing.
Acceleration of a mortgage note does not affect the time limits under state law on the right to foreclose.
Mortgagor does not have a private right of action against mortgagee under state mortgage licensing law.
http://media.ca1.uscourts.gov/pdf.opinions/16-2380P-01A.pdf
The rest of the story
End of day. Perfunctory coverage continues.
http://www.ca3.uscourts.gov/opinions-and-oral-arguments
http://www.opn.ca6.uscourts.gov/opinions/opinions.php
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Time=week&FromMonth=&FromDay=&FromYear=&ToMonth=&ToDay=&ToYear=&Author=any&AuthorName=&Case=any&CaseY1=&CaseY2=&CaseN1=&CaseN2=&CaseN3=&CaseN4=&Submit=Submit&RssJudgeName=Wood&OpsOnly=yes
https://www.ca9.uscourts.gov/opinions/?pk_id=0000009531
http://www.ca11.uscourts.gov/todays-published-opinions
-CB
Third Circuit: USA v. Anthony Mayo
A second or successive habeas petition will be entertained if the sentence challenged may have been based on the retroactively invalidated sentencing provision.
State statute is categorically not a valid predicate crime of violence, as it can be committed by an omission.
http://www2.ca3.uscourts.gov/opinarch/164282p.pdf
State statute is categorically not a valid predicate crime of violence, as it can be committed by an omission.
http://www2.ca3.uscourts.gov/opinarch/164282p.pdf
Third Circuit: Encompass Insurance Co v. Stone Mansion Restaurant Inc
Given the plain reading of the statute, a domestic opponent can remove a case to federal court despite the forum defendant rule if the notice of removal is filed before acceptance of service of the complaint; the rule as set forth in the statute only applies to parties who have been properly joined and served. Party's agreement to accept electronic service did not have a preclusive effect on consent to jurisdiction.
As contribution within joint liability arises not from a finding of liability, but from an equitable allocation of costs, the insurer of a driver who harms another can recover a contribution from the bar that served the driver, despite the dram shop law limiting liability to third parties.
http://www2.ca3.uscourts.gov/opinarch/171479p.pdf
As contribution within joint liability arises not from a finding of liability, but from an equitable allocation of costs, the insurer of a driver who harms another can recover a contribution from the bar that served the driver, despite the dram shop law limiting liability to third parties.
http://www2.ca3.uscourts.gov/opinarch/171479p.pdf
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