End of day

More here:

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0192p-06.pdf

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0193p-06.pdf'
'
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-29/C:17-3196:J:Wood:aut:T:fnOp:N:2210037:S:0

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-29/C:17-1399:J:Rovner:aut:T:fnOp:N:2210117:S:0

http://media.ca8.uscourts.gov/opndir/18/08/164372P.pdf

http://media.ca8.uscourts.gov/opndir/18/08/171327P.pdf

http://media.ca8.uscourts.gov/opndir/18/08/171414P.pdf

http://media.ca8.uscourts.gov/opndir/18/08/172612P.pdf

Also 9, 10 & 11th.

-CB

Fifth Circuit: SCF Waxler Marine, L.L.C., et al v. Aris T M/V, et al.

Appellate court does not have jurisdiction over an interlocutory appeal challenging the trial court's holding that contractually, the excess insurers liability under the state's direct recovery statute is limited to the insured vessel.

http://www.ca5.uscourts.gov/opinions/pub/17/17-30805-CV0.pdf

Fifth Circuit: Swinterton Builders v. Oklahoma Surety

Insurer had duty to defend, since the written agreement establishing the company as an insured party did not need to be countersigned by the company to be a written agreement; the company's consent can be inferred.

Where the claim is for breach of contract, an insurer still has a duty to defend against a claim for property damage where the factual situation alleged might present a claim for property damage.

Whether or not anti-stacking provisions apply to duty to defend, it would be inequitable to apply them here.

Damages in suit where insurer breached duty to defend qualify for state statute requiring prompt payment for the schedule.

Damages can be recovered under statute regardless of independent injury from the lack of payment.

http://www.ca5.uscourts.gov/opinions/pub/16/16-20195-CV1.pdf

Third Circuit: Ronald Cup v. Ampco Pittsburgh Corp

An order compelling arbitration, when issued while dismissing all counts in the present action, is sufficiently final for appeal.

Absent an explicit mention, employees who retired before the CBA are not integrated in the CBA   by references to other documents without an attempt to incorporate them.  As the arbitration provision requires that the matters arise under the CBA, it was error to compel arbitration.

http://www2.ca3.uscourts.gov/opinarch/172349p.pdf

First Circuit: Campbell v. Ackerman

As deft shifts the argument from actual innocence to an unjustified use of force during the search, trial court's exclusion of testimony as to irregularities in the search warrant is prudentially upheld, as the second argument was not raised squarely below.

Where the trial court found no liability, a claim of error in the damages testimony is moot.

http://media.ca1.uscourts.gov/pdf.opinions/17-1927P-01A.pdf

First Circuit: Perry v. Spencer

Qualified immunity for prison officials in suit challenging placement of inmate in segregation cells, as it was unclear at which point the due process interest arose, and safety concerns allow prison officials considerable discretion in scheduling adversarial challenges to administrative decisions.

http://media.ca1.uscourts.gov/pdf.opinions/16-2444U-01A.pdf

End of day

The pace, it must increase.  Look for increased coverage in coming days, if you're reading this.  Which you shouldn't be, as it shouldn't be relied upon for anything.

Other precedential holdings on 8/28

http://www2.ca3.uscourts.gov/opinarch/171990p.pdf

http://www2.ca3.uscourts.gov/opinarch/163346p.pdf

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0190p-06.pdf

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0191p-06.pdf

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-28/C:17-2132:J:Easterbrook:aut:T:fnOp:N:2208964:S:0

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-28/C:17-2920:J:Barrett:aut:T:fnOp:N:2209369:S:0

http://media.ca8.uscourts.gov/opndir/18/08/164275P.pdf

http://media.ca8.uscourts.gov/opndir/18/08/164440P.pdf

http://media.ca8.uscourts.gov/opndir/18/08/171300P.pdf

http://media.ca8.uscourts.gov/opndir/18/08/172296P.pdf

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/28/16-55249.pdf

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/28/16-50096.pdf

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/28/15-17517.pdf

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/28/15-17517.pdf

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/28/15-17497.pdf

http://media.ca11.uscourts.gov/opinions/pub/files/201711742.pdf

-CB

Third Circuit: Clayton Tanksley v. Lee Daniels

Although the standard is the perception of a layman, where no reasonable juror could find substantial similarity in the allegedly infringing content, judgment as a matter of law for not stating a claim is appropriate.

Although similarities in unprotectable elements of the two works can be probative of allegations of actual copying, striking similarities in the concept for the protagonist do not make the superficial similarities in the protectable expression a violation of copyright.

http://www2.ca3.uscourts.gov/opinarch/172023p.pdf

Third Circuit: Craig Geness v. Jason Cox

An argument for equitable tolling must be raised in the opening appellate brief; otherwise, it's waived.

When inquiring as to whether a nolle prosequi was a favorable determination, a court must look beyond the four corners of the order.

Given an affidavit to the contrary and absent any deposition testimony, speculation that exculpatory evidence was known at the time was insufficient to present a genuine issue of material fact.

Claim of discrimination under federal law is a new and separate claim not barred by Rooker-Feldman after earlier state court adjudication relating to the events.

Motion to amend at summary judgment stage within a year of filing is presumptively timely.

http://www2.ca3.uscourts.gov/opinarch/172073p.pdf

Second Circuit: Empire Merchants, LLC, et al. v. Reliable Churchill, LLLP, et al.

Smuggling operation is a single conspiracy for the purposes of civil RICO, as the particularly pleaded effects all result from the single operation.

Assertion of actual and foreseeable economic loss is insufficient to state a civil RICO claim, since the predicate conduct must be the proximate cause of the harm, and many factors might have prompted the economic loss. 

http://www.ca2.uscourts.gov/decisions/isysquery/4fbb3ac1-668c-4c5a-9a00-4ef6d292767a/1/doc/17-887_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/4fbb3ac1-668c-4c5a-9a00-4ef6d292767a/1/hilite/

End of day

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

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/

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/

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

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

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

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

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

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/

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/