Legal News Updates

Case Summaries

Asset Forfeiture

[06/18] US v. 777 Greene Ave.
In a civil forfeiture proceeding, the motion to withdraw of defendant's counsel is denied where such a motion will not be granted unless counsel satisfies the requirements established under Anders v. California, 386 U.S. 738 (1976), and its progeny. With regard to motions to withdraw filed by appellate counsel appointed pursuant to 18 U.S.C. section 983(b)(2)(A), the procedure established under Anders and its progeny is best suited to protect the right to counsel to which indigent litigants are entitled.

[06/10] People v. Indiana Lumbermens Mut. Ins. Co.
In a motion to set aside a forfeiture and exonerate a bond, court of appeals' reversal of trial court's denial is reversed as a motion for relief from forfeiture of bail must be made within 180 days of forfeiture, unless the time is extended as the governing statute permits, even when an absconding defendant is arrested or surrendered in a county other than the jurisdiction where the case is pending.

[05/07] ERI Consulting Eng'r, Inc. v. Swinnea
In plaintiffs' suit against his former business partner claiming various causes of action including common law fraud and breach of fiduciary duty, judgment of the court of appeals holding that equitable forfeiture is not an available remedy is reversed as, when a partner in a business breached his fiduciary duty by fraudulently inducing another partner to buy out his interest, the consideration received by the breaching party for his interest in the business is subject to forfeiture as a remedy for the breach, in addition to other damages that result from the tortious conduct.

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Class Actions

[06/25] Lincoln Nat'l Life Ins., Co. v. Bezich
A petition for permission to appeal, arising from the district court's remand of plaintiff's class action lawsuit against an insurer for breach of contract claims on the basis that CAFA's exception to federal jurisdiction for the action applied, is dismissed for lack of jurisdiction as plaintiff's claim "related to the rights, duties,...and obligations relating to or created by or pursuant to...a security," as defined in the Securities Act of 1933.

[06/24] Faulkinbury v. Boyd & Assoc. Inc.
In a suit brought by about 4000 current and former employees against an employer, claiming that the company, which provides security guard services throughout Southern California, denied meal and rest breaks and failed to pay for overtime, trial court's denial of their motion for class certification is affirmed in part, reversed in part and remanded where: 1) order denying the motion for class certification as to the meal break class and the rest break class is affirmed as the trial court did not abuse its discretion in finding common issues of law and fact did not predominate over individual issues; and 2) order denying the motion for class certification as to the overtime-pay class is reversed and remanded.

[06/24] Brown v. Kelly
In a class action by persons allegedly arrested pursuant to an unconstitutional New York anti-begging statute, the district court's class certification order is affirmed in part where the citywide plaintiff class met the requirements of Federal Rules of Civil Procedure 23(a) and 23(b)(3). However, the order is reversed in part where the district court erred in certifying a statewide defendant class because the defendant class representatives did not meet the adequacy and typicality requirements of Federal Rule of Civil Procedure 23(a), and the district court also erred in certifying a statewide plaintiff class because the certification of this class was contingent on the bilateral certification of both a statewide plaintiff and a statewide defendant class.

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Consumer Protection

[06/24] Olmstead v. Fed. Trade Comm'n
An order to partially satisfy a judgment against defendant in the FTC's suit for unfair or deceptive trade practices is affirmed as Florida law permits a court to order a judgment debtor to surrender all right, title, and interest in the debtor's single-member limited liability company to satisfy an outstanding judgment.

[06/21] Kleffman v. Vonage Holdings Corp.
In plaintiff's class action suit under section 17529.5(a)(2), which makes it unlawful to advertise in a commercial e-mail advertisement (i.e. spam) that "contains or is accompanied by falsified, misrepresented, or forged header information," dismissal of the complaint for failure to state a claim is affirmed as sending commercial e-mail advertisements from multiple domain names for the purpose of bypassing spam filters is not unlawful under section 17529.5(a)(2).

[06/21] Real Estate Bar Ass'n for Massachusetts, Inc. v. Nat'l Real Estate Info. Serv.
In the Real Estate Bar Association's suit against defendant for unauthorized practice of law, judgment of the district court is vacated in part, reversed in part and remanded where: 1) district court's judgment against plaintiff on its unauthorized practice of law claim is vacated as in Massachusetts, the state judicial branch and the Supreme Judicial Court of Massachusetts (SJC) in particular, is solely responsible for defining what is the practice of law, and here, there is no controlling precedent which addresses whether the activities at issue constitute unauthorized practice of law; and 2) district court's judgment on defendant's dormant Commerce Clause counterclaim is reversed as plaintiff is not a state actor, defendant has not stated a dormant Commerce Clause claim against plaintiff, and plaintiff's bringing of its suit against defendant under Mass. Gen. Laws ch. 221, section 46B is protected by the First Amendment.

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Injury & Tort Law

[06/25] Crescent Towing & Salvage Co. v. Chios Beauty MV
In an action for damages sustained when defendant's ship collided with plaintiffs' barges and tugboats during Hurricane Katrina, partial judgment for plaintiff is affirmed in part where the district court did not clearly err in its finding of a predicted "direct hit" on New Orleans by the hurricane, its factual findings based on this finding, and the ultimate finding of negligence to the extent that it relied upon this finding. However, the matter is remanded where the district court needed to enter an order setting the total amount of recovery plaintiffs could recover in rem.

[06/25] Bagby Elevator Co. v. Schindler Elevator Corp.
In an action for tortious interference with contract, judgment for plaintiff is affirmed where: 1) under the court's highly deferential standard of review, there was no reversible error in the district court's decision to use the pattern jury instruction; 2) there was sufficient evidence of both malice and gross negligence to support an award of exemplary damages; and 3) there was ample evidence of causation to support the verdict.

[06/25] Lal v. State of Cal.
In an action against the California Highway Patrol and certain officers for the shooting death of plaintiff's husband, dismissal of the action with prejudice under Federal Rule of Civil Procedure 41(b) for failure to prosecute when her attorney failed to meet deadlines and attend hearings is reversed where an attorney's gross negligence constituted an extraordinary circumstance warranting relief from a judgment dismissing the case for failure to prosecute under Rule 41(b).

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Judges & Judiciary

[06/30] ORANGE COUNTY EMPLOYEES ASS'N, INC. v. THE SUPERIOR COURT OF ORANGE COUNTY
The Court denied plaintiff's petition for writ of mandate to disclose records relating to reimbursement of travel expenses for judges and management employees of the Court pursuant to the California Public Records Act, because the Act did not apply to the requested disclosure.

[06/28] US v. PARKER
Evidence seized under a warrant issued by a trial commissioner who was also an administrative assistant at the county jail was properly excluded, because the commissioner was not a neutral and detached party.

[06/08] PEOPLE v. PESCADOR
A judge, substituted into a trial following three days of testimony, can fairly and competently preside without first reading all prior testimony, as long as he familiarized himself with pertinent portions of the record before making specific rulings.

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Judgment Enforcement

[06/24] Olmstead v. Fed. Trade Comm'n
An order to partially satisfy a judgment against defendant in the FTC's suit for unfair or deceptive trade practices is affirmed as Florida law permits a court to order a judgment debtor to surrender all right, title, and interest in the debtor's single-member limited liability company to satisfy an outstanding judgment.

[06/23] In re McKinney
An appeal by a tax debt owner in Chapter 13 proceedings, arising from the bankruptcy court's denial of its objections to the debtor's proposed plan to pay off the tax debt with interest within five years, is dismissed for lack of jurisdiction as, although the issue that the tax debt owner cares about may have been resolved, its basic dispute with the bankruptcy estate has not been resolved and therefore the judgment of the bankruptcy court is not final.

[06/22] Export-Import Bank of the U.S. v. Asia Pulp & Paper Co.
In an action to collect a $144 million judgment against defendants pursuant to the Federal Debt Collection Procedures Act (FDCPA), the district court's order quashing plaintiff's writs of garnishment is affirmed where an electronic funds transfer (EFT) temporarily in the possession of an intermediary bank in New York may not be garnished under the FDCPA to satisfy judgment debts owed by the originator or intended beneficiary of that EFT.

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Public Utilities

[06/24] Muscarello v. Ogle County Bd. of Comm'rs
In plaintiff's suit against multiple defendants asserting various claims based on the U.S. Constitution, the Illinois Constitution, Illinois statutes, and the common law, arsing from the county's decision to amend its zoning ordinances to allow special permits for the construction of windmills used to generate power, and in particular, the construction of 40 windmills adjacent to plaintiff's property, judgment of the district court is affirmed where: 1) plaintiff's federal takings, equal protection, and due process claims fail to state a claim upon which relief can be granted; 2) plaintiff's state law trespass and nuisance claims are not ripe for review; 3) plaintiff has failed to avail herself of the opportunity to allege and support an independent basis of federal subject-matter jurisdiction over the other seven claims; and 4) the district court did not abuse its discretion in denying defendant's motion for an administrative stay.

[06/18] AEP Tex. N. Co. v. Surface Transp. Bd.
In an electric utility's petition for review of the Surface Transportation Board's denial of a portion of petitioner's petition requesting a recomputation of petitioner's cost of equity capital for the years 1998-2005, the petition is granted in part where the Board's particularly cursory analysis of the 2005 cost of equity estimates constituted arbitrary and capricious decisionmaking. However, the petition is denied in part where the fact that the Board did not agree that the changed circumstances warranted changing prior years' calculations did not by itself mean the Board acted arbitrarily or capriciously or failed to consider seriously petitioner's evidence.

[06/09] Porter Trust v. Rural Water Sewer & Solid Waste Mgmt. Dist.
In an action by landowners whose property was within the boundaries of the water and sewer district served by the defendant, seeking to de-annex the property from the defendant's district, a remand of the matter to state court is affirmed where, although the Logan County Board of County Commissioners exercised a judicial function in de-annexation proceedings, it was an administrative rather than a judicial entity.

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