Federal Judiciary

Erasing a Sanction. The Second

Posted on October 23, 2008
Erasing a Sanction. The Second Circuit has held that parties cannot condition the settlement of an action on the District Court's vacatur of an award of sanctions against a party's attorneys. The decision in ATSI Communications, Inc. v. Shaar Fund, Ltd...

Executives. In answer to a certified

Posted on September 08, 2008
Executives. In answer to a certified question, the New York State Court of Appeals has held that an executive is an employee under the New York Labor Law, article 5, except where expressly excluded. The Court of Appeals further held that section 193 of the Labor Law did not prevent the parties from entering into a contract where a commission was not "earned" until after certain deductions were made from her percentage of gross billings...

KPMG Employees Off the Hook. The

Posted on September 03, 2008
KPMG Employees Off the Hook. The Second Circuit has upheld the dismissal of the indictments of eleven partners and employees of accounting firm KPMG, LLP because the government had caused KPMG to put conditions on the advancement of legal fees to the defendants...

Tolling the staute. The Second

Posted on September 03, 2008
Tolling the staute. The Second Circuit held that a application, pursuant to 18 U.S.C. 3292, to suspend the running of a statute of limitations pending a request for foreign evidence must be made before the statute of limitations expires.The decision in United States v...

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Certified question. In an action

Posted on August 28, 2008
Certified question. In an action brought under the Individuals with Disabilities Education Act, a father brought an action seeking relief on behalf of him and his disabled son. Because he was the non-custodial parent, the distirict court held that he did not have standing to bring the action...

Absentee Ballot. The Second Circuit

Posted on August 25, 2008
Absentee Ballot. The Second Circuit reversed the District Court's decision dismissing a complaint claiming that the New York State Board of Elections violated the plaintiffs' Fifth Amendment rights by failing to provide for absentee ballots in elections for polical party county committees, while providing them for all other kinds of elections...

Steinbeck. The Second Circuit has

Posted on August 14, 2008
Steinbeck. The Second Circuit has reversed a ruling that awarded John Steinbeck's son and granddaughter publishing rights to 10 of the author's early works, including 'The Grapes of Wrath.The decision in Penguin Group (USA) Inc. v. Steinbeck can be found here...

9/11. The Second Circuit has ruled

Posted on August 14, 2008
9/11. The Second Circuit has ruled that Saudi Arabia and four of its princes cannot be held liable in the Sept. 11 attacks. The Court held that the Saudi defendants are protected by sovereign immunity. It also agreed with a lower court that a Saudi banker and a charitable organization cannot be held liable...

Modest success. The Second Circuit

Posted on August 12, 2008
Modest success. The Second Circuit has held that the district court was proper in reducing a request for attorneys' fees in a case brought under the Fair Labor Standanrds Act from $340,375 to $49,889 in light of the limited successs acheived by the attorney...

Another certified question. The

Posted on August 06, 2008
Another certified question. The Second Circuit has asked the Court of Appeals for its view on another question. The certified question is:Does New York General Obligations Law 15-301(1) abrogate, in the case of a contract where the second of two irreconcilable provisions requres that any modifications to the agreement be made in writing, the common law rule where two contractual provisions are irreconcilable, the one appearing first in the contract is to be given effect rather than the one appearing subsequent?The decision in Israel v...

Waiving Doctor-Patient Privilege.

Posted on July 20, 2008
Waiving Doctor-Patient Privilege. The Second Circuit granted a writ of mandamus and reversed an order that required a prisoner's psychiatric records to be disclosed in a case where the prisoner brought a 1983 action alleging that correctional officers used excessive force on him...

Evidence after summations. The

Posted on July 17, 2008
Evidence after summations. The Second Circuit, in United States v. Crawford, held that the district court had abused its discretion in reopening the record after summations to allow the posecution to put in additional evidence.The decision in this case can be found here.

Cash-based defined benefit plans.

Posted on July 15, 2008
Cash-based defined benefit plans. The Second Circuits, joining the other circuits that have considered the issue, has held that cash-based defined benefit plans do not inherently result in age-based reduction in the rate of benefit accrual and do not violate ERISA...

Attempted Deceit -- Certified Questions.

Posted on July 15, 2008
Attempted Deceit -- Certified Questions. The Second Circuit, in Amalfitano v. Rosenberg has certified the following questions to the New York State Court of Appeals:Can a successful lawsuit for treble damages brought under N.Y. Judiciary Law 487 be based on an attempted but unsuccessful deceit upon a court by the defendant?In the course of such a lawsuit, may the costs of defending litigation instituted by a complaint containing a material misrepresentation of fact be treated as the proximate result of the misrepresentation if the court upon which the deceit was attempted at no time acted on the belief that the misrepresentation was true?The decision can be found here.

Prerequisite. The Second Circuit

Posted on July 06, 2008
Prerequisite. The Second Circuit has held that it is not a prerequisite to liability under the Americans with Disabilities Act to request an accommodation when the employer is aware of its employee's disability or the disability is apparent. The decision in Brady v...

Can there by corporate scienter

Posted on June 29, 2008
Can there by corporate scienter without scienter of a corporate agent? The Second Circuit says yes, at least at the pleading stage. The Court, in Teansters Local 445 Freight Division Pension Fund v. Dynex Capital Inc. found that the requisite strong inference of scienter of the corporate defendant had not been made, and vacated the District Court's order denying the motion to dismiss and remanding the case to the District Court...

We have discretion? Evidently

Posted on June 25, 2008
We have discretion? Evidently not all district judges are aware that they have discretion to depart from the sentencing guidelines range. Because of this, a crack coclaine defendant will get a chance for a lower sentence. It was unclear whether his judge was one of those clueless judges...

Fraudulent conveyance. The Second

Posted on June 23, 2008
Fraudulent conveyance. The Second Circuit has held that a federal securities receiver may not employ New York Debtor and Creditor Law section 276 to set aside a fraudulent conveyance where he represents only the transferor.In addition, the Court held that a third party who claims a right to certain property held by the receiver is entitled to a jury trial under the Seventh Amendment...

Recusing for Mukasey. The Justice

Posted on June 12, 2008
Recusing for Mukasey. The Justice Department does not have to recuse itself from representing the Untied States in an appeal from former-District Judge Michael Mukasey. The Court noted that if Mukasey is not participating in the appeal that is sufficient...

Chutzpah. In United States v.

Posted on June 02, 2008
Chutzpah. In United States v. Habbas, we have two gentlemen who conspire to frame a man for a crime that could put him behind bars for life. They were caught and entered into plea agreements. One of these "gentlemen" argued that the government had breached the plea agreement by arguimg for a higher sentence than the non-binding estimate it made in the plea agreement...

Student's First Amendment rights.

Posted on May 29, 2008
Student's First Amendment rights. The Second Circuit upheld a denial of an injunction to void the election of a Seniro Class Secretary and ordering the school to have a new election in which the plaintiff's daughter would be allowed to participate. The daughter had been disqualifed from the election because she posted a vulfar and misleading message about the supposed cancellation of an upcoming school event on an independently-operated, publicly accessible blog...

Civil First. The Second Circuit

Posted on May 27, 2008
Civil First. The Second Circuit has held that a tax evader is not entitled to argue his tax position in a civil proceeding before being prosecuted for tax evasion. Not really a shocking holding. Many white collar crimes have a civil claim that can also be brought by the government...

Remand. The Second Circuit has

Posted on May 20, 2008
Remand. The Second Circuit has held that it has the authority to remand an issue of nationality to the Board of Immigration Appeals if the issue had been presented but not decided by the Board. The Government had taken the position that 8 U.S.C. 1252(b)(5), which provides that the Court of Appeals is to decide issues relating to nationality without saying anything about remand, precludes the Court from sending a nationality case back to the BIA...

Solicitor General. Paul Clement

Posted on May 15, 2008
Solicitor General. Paul Clement has resigned as Solicitor General of the United States. It is likely that principal deputy Solicitor General Gregory Garre will close out the Bush administration as acting Solicitor General.

No Jurisdiction. The Second Circuit,

Posted on May 13, 2008
No Jurisdiction. The Second Circuit, based on its prior precedent, found that it did not have jurisdiction to review a claim that an immigration judge erred in its application of law in determining whether an alien's removal would result in "exceptional and extremely unusual hardship...

Payment. A lawyer failed to take

Posted on May 13, 2008
Payment. A lawyer failed to take the required actions to proceed with an appeal from a decision of the Board of Immigration Appeals because his client had not paid the agreed upon fee. When the fee was paid, a year after the appeal had been dismissed, the attorney sought to reinstate the appeal and recall the mandate...

Right of Action. Under the Vienna

Posted on April 28, 2008
Right of Action. Under the Vienna Convention on Consular Relations, an alien is entitled to be informed of his right to contact his consulate in the event of arrest. The plaintiff in Mora v. People of New York was not so informed and sued under the Alien Tort Statute...

Kelo redux. In an attempt to stop

Posted on April 08, 2008
Kelo redux. In an attempt to stop proposed development of downtown Brooklyn through, in part, the use of eminent domain, the plaintiffs in Goldstein v Pataki claimed that the use of that power, which they claimed, was not for a public purpose and hence violated the Public Use clause of the Fifth Amendment...

Light cigarettes. The Second

Posted on April 08, 2008
Light cigarettes. The Second Circuit has reversed an order granting certification of a class consisting of individuals who were deceived into believing that "light" cigarettes were healthier than ordinary cigarettes. The Court found that individual issues outweighed issues susceptible to common proof...

Inter-racial marriage. The Second

Posted on April 02, 2008
Inter-racial marriage. The Second Circuit has held that a white person married to a black person may sue under Title VII if his employer takes action against him because of his inter-racial marriage. The decision in Holcomb v. Iona College can be found here.

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