Case Summaries

Attorney's Fees

[06/25] Rice v. Astrue
In plaintiff's appeal from the district court's order requiring her attorney to remit a portion of her Equal Access to Justice Act (EAJA) award if she won attorney's fees at the administrative level, the order is reversed where a federal court may not condition the amount of its EAJA award of attorney's fees on a future grant of attorney's fees by the Commissioner of Social Security.

[06/25] Kimbrough v. State of Cal.
In an action claiming that the California Department of Corrections and Rehabilitation's (CDCR) grooming regulations concerning hair length interfered with plaintiff's First Amendment right to free exercise of religion, the district court's award of attorney's fees to plaintiff is reversed where, because the district court did not actually adjudicate plaintiff's claims, the Ninth Circuit's decision in Siripongs foreclosed an award of attorneys' fees in this case.

[06/24] Simonia v. Glendale Nissan/Infiniti Disability Plan
In plaintiff's appeal from the district court's denial of his motion for attorney's fees under the Employee Retirement Income Security Act of 1974 (ERISA), the order is affirmed where: 1) district courts must consider the Hummell factors after they have determined that a litigant has achieved "some degree of success on the merits,"; but 2) even assuming plaintiff achieved some degree of success on the merits, the Ninth Circuit agreed with the district court's conclusion that fees are nonetheless inappropriate after applying the Hummell factors.

[06/24] Shaw v. Sec'y of Human & Health Serv.
In an appeal of a Special Master's decision to award plaintiff's undisputed portion of his request for interim attorneys' fees and costs and deferring consideration of the remaining amount until submission of a final petition for fees and costs in plaintiff's case under the Vaccine Act, Court of Federal Claims' dismissal for lack of jurisdiction is reversed as 42 U.S.C. section 12(e) confers jurisdiction on the Court of Federal Claims to review interim attorney fee decisions as an interim attorney fee decision is a separate decision on compensation, and as such, is reviewable even when that decision issues prior to a decision on the merits.

[06/18] Harris v. Wachovia Mortgage, FSB
In a suit for breach of contract, breach of the implied covenant of good faith and fair dealing, and unfair business practices, trial court's order sustaining without leave to amend a demurrer to plaintiffs' first amended complaint is affirmed in part, reversed in part and remanded where: 1) the demurrer was properly sustained without leave to amend as to the unfair business practices claim as it was added without leave of court and exceeded the scope of the court's order granting leave to amend the original complaint; 2) the demurrer was properly sustained as to the breach of the covenant of good faith and fair dealing claim as plaintiffs have not pleaded a violation of any duty arising under tort law; 3) the demurrer was improperly sustained as to the breach of contract claim as the settlement agreement is not preempted by Home Owners' Loan Act (HOLA); and 4) the award of costs including attorney fees is reversed as a matter of law.

[06/17] Guy v. City of San Diego
In plaintiff's appeal from the district court's denial of his motion for a new trial on damages following a jury verdict reached in his 42 U.S.C. section 1983 action alleging excessive force by police, the order is affirmed in part where substantial evidence supported the jury's finding that plaintiff suffered only nominal damages. However, the order is reversed in part where an attorney's fee award would serve a purpose beneficial to society by encouraging the City of San Diego to ensure that all of its police officers were well trained to avoid the use of excessive force, even when they confronted a person whose conduct had generated the need for police assistance.

[06/15] Soria v. Soria
In an appeal from the trial court's award of attorneys' fees on the ground that a trustee contested the claim by a beneficiary of the trust in bad faith, the order is reversed where Probate Code section 17211(b) did not permit recovery of attorney fees for the simple reason that the claimants did not contest a trustee's account.

[06/11] Texas Dep't of Criminal Justice v. McBride
In an inmate's suit claiming that the defendant violated his due process rights by failing to give him a copy of an administrative decision, arising from a disciplinary hearing for possessing of an alcoholic beverage, court of appeals' holding that the defendant's claim for attorney's fees is considered a claim for affirmative relief that waives sovereign immunity is reversed as, a request for attorney's fees incurred in defending a claim does not waive immunity under Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, (Tex 2006).

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Banking Law

[06/24] DDJ Mgmt., LLC v. Rhone Group L.L.C.
In an action claiming that defendants presented plaintiffs with corporate financial statements that were false and misleading, the appellate division's modification of the trial court's order dismissing plaintiffs' fraud claim is reversed where: 1) when a plaintiff has taken reasonable steps to protect itself against deception, it should not be denied recovery merely because hindsight suggested that it might have been possible to detect the fraud when it occurred; and 2) plaintiffs in this action for fraud have alleged facts from which a jury could find that they were justified in relying on the representations defendants made to them.

[06/22] Jay E. Hayden Found. v. First Neighbor Bank, NA
In a RICO suit against a bank, two law firms, and affiliated individuals, grant of defendants' motion to dismiss on the ground that the complaint itself showed that plaintiffs had missed the four-year deadline governing RICO suits is affirmed as, by the summer of 2003 at the latest, the plaintiffs knew that a lawyer had looted the estate and that bank's employees were trying to prevent further investigation of the lawyer.

[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.

[06/18] Harris v. Wachovia Mortgage, FSB
In a suit for breach of contract, breach of the implied covenant of good faith and fair dealing, and unfair business practices, trial court's order sustaining without leave to amend a demurrer to plaintiffs' first amended complaint is affirmed in part, reversed in part and remanded where: 1) the demurrer was properly sustained without leave to amend as to the unfair business practices claim as it was added without leave of court and exceeded the scope of the court's order granting leave to amend the original complaint; 2) the demurrer was properly sustained as to the breach of the covenant of good faith and fair dealing claim as plaintiffs have not pleaded a violation of any duty arising under tort law; 3) the demurrer was improperly sustained as to the breach of contract claim as the settlement agreement is not preempted by Home Owners' Loan Act (HOLA); and 4) the award of costs including attorney fees is reversed as a matter of law.

[06/17] US v. Peterson
In a prosecution of defendant for structuring transactions to evade reporting requirements set forth in 31 U.S.C. section 5313(a), district court's imposition of a two-level enhancement pursuant to section 2S1.3(b)(2) of the sentencing guidelines to defendant's sentence is affirmed as the district court did not err in determining that defendant's structuring offense was committed as part of a pattern of unlawful activity involving more than $100,000 in a twelve-month period, and as a result, the safe harbor of section 2S1.3(b) did not apply.

[06/15] Weinstein v. Islamic Repub. of Iran
In proceedings involving efforts to collect on a default judgment against Iran and in favor of the family of an individual severely injured in a 1996 suicide bombing in Jerusalem, an order granting plaintiff's motion for appointment of receiver to attach defendant's property in satisfaction of the prior judgment is affirmed where: 1) section 201(a) of the Terrorism Risk Insurance Act provided courts with subject matter jurisdiction over post-judgment execution and attachment proceedings against property held in the hands of an instrumentality of the judgment-debtor, even if the instrumentality was not itself named in the judgment; 2) Congress, by virtue of providing subject matter jurisdiction over execution and attachment proceedings based in part on the Office of Foreign Asset Control's determination of what assets were blocked, did not unconstitutionally delegate its authority to the Executive Branch; and 3) there was no conflict between the TRIA and the Treaty of Amity, Economic Relations, and Consular Rights.

[06/07] FDIC v. Great Am. Ins. Co.
In an action for breach of an insurance contract, summary judgment for defendant is affirmed where the district court erred in ruling that the fidelity bond at issue was not an "asset" under 12 U.S.C. section 1823(e), but to honor the FDIC's position and allow it to recover would effectively strike the rescission clause from the bond.

[06/01] Bank of N.Y. v. First Millennium, Inc.
In an action asserting competing claims to the proceeds of a failed securitization of credit card debt, summary judgment for the Bank of New York and against the Federal Deposit Insurance Corporation (FDIC) is affirmed where: 1) the FDIC adduced no evidence to support its contention that the amount due on the notes at their maturity was an "invested amount" by the notes' terms, rather than the unpaid principal amount; 2) the FDIC failed to identify any other provision of the transaction documents that supported its contentions that the amount due on the notes was anything other than their entire unpaid principal; 3) issue preclusion did not apply because a prior action did not consider whether the notes at issue were full recourse or limited recourse obligations of the issuer; and 4) since the Bank of New York asserted no claims against the FDIC as receiver for the failed bank, it was not bound by the jurisdictional limitations or other procedural requirements of 12 U.S.C. section 1821(d).

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Civil Procedure

[06/25] Rathborne Land Co. v. Ascent Engy., Inc.
In an action for breach of defendant's obligations to reasonably develop and explore a leased parcel of oil, gas, and mineral land, judgment for plaintiff is affirmed in part where: 1) plaintiff's letter to defendant met the La. Rev. Stat. Ann. section 31:136 demand requirement; and 2) district court did not clearly err in concluding that plaintiff would have been able to lease the disputed acreage more than once if it had been able to seismically survey the parcel prior to 2006. However, the judgment is vacated in part where neither the district court nor plaintiff could show an adequate ground -- indeed, any relevant precedent -- for awarding consequential damages for lost leasing and seismic revenues on the entire parcel.

[06/25] Kimbrough v. State of Cal.
In an action claiming that the California Department of Corrections and Rehabilitation's (CDCR) grooming regulations concerning hair length interfered with plaintiff's First Amendment right to free exercise of religion, the district court's award of attorney's fees to plaintiff is reversed where, because the district court did not actually adjudicate plaintiff's claims, the Ninth Circuit's decision in Siripongs foreclosed an award of attorneys' fees in this case.

[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).

[06/25] Greenspan v. LADT, LLC
In a trust's suit for breach of contract and other claims against two affiliated companies and individuals, trial court's confirmation of an arbitrator's award against defendants in the amount of $6.34 million is affirmed where: 1) per the JAMS rules, the arbitrator, not a court, determines what issues are arbitrable, and here, the arbitrator determined that the issue of joint and several liability was arbitrable; 2) arbitrator's finding of joint and several liability was rationally related to the parties' contract; 3) as to the timeliness of the final award under JAMS rules, the arbitrator's interpretation and application of the rules cannot be judicially reviewed on the merits; and 4) the suit against the arbitrator was barred by arbitral immunity and would not have caused a reasonable person to doubt the arbitrator's impartiality.

[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.

[06/25] Pickett v. Sheridan Health Care Ctr.
In plaintiff's Title VII suit against her former employer for being fired in retaliation for her complaints about sexual harassment by residents of defendant's nursing home, district court's denial of defendant's motions for a new trial and remittitur are affirmed where: 1) plaintiff presented enough evidence to persuade a reasonable jury that her complaints caused defendant to fire her; 2) it was not an abuse of discretion to deny the motion for a new trial on the basis of plaintiff's counsel's closing arguments; 3) it was not an abuse of discretion in denying remittitur on the compensatory damages as enough evidence supported a jury award of $25,000, which is well within the $200,000 cap set out in 42 U.S.C. section 1981a(b)(3)(C); and 4) it was not an abuse of discretion in denying remittitur on the punitive damage award and the logic of Exxon Shipping Co. v. Baker, 128 S. Ct. 2605 (2008) does not apply to this Title VII case.

[06/24] Bifulco v. Patient Bus. & Fin. Serv., Inc.
In plaintiff's wrongful termination suit against her former employer, Fifth District's reversal of trial court's grant of defendant's motion for summary judgment is affirmed as workers' compensation retaliation claims brought against the state under section 440.205 are not subject to the presuit notice requirements of section 768.28(6)

[06/18] Wal-Mart Stores, Inc. v. Merrell
In plaintiffs' wrongful death and survival claims against Wal-Mart for the death of their son from smoke inhalation, claiming that a halogen lamp purchased from Wal-Mart caused the fire, the court of appeals' reversal of the trial court's grant of defendant's motion for summary judgment on the ground that plaintiffs produced evidence on each challenged element of their cause of action is reversed as, plaintiff's expert's testimony was legally insufficient to support causation.

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Commercial Law

[06/28] Bilski v. Kappos
In a patent application seeking protection for a claimed invention explaining how commodities buyers and sellers in the energy market could protect, or hedge, against the risk of price changes, the denial of the application is affirmed where: 1) the machine-or-transformation test is not the sole test for patent eligibility under 35 U.S.C. section 101; 2) Section 101 precluded a reading of the term "process" that would categorically exclude business methods; and 3) even though petitioners' application was not categorically outside of section 101 under the two atextual approaches the Court rejected today, that did not mean it was a "process" under section 101.

[06/25] Rathborne Land Co. v. Ascent Engy., Inc.
In an action for breach of defendant's obligations to reasonably develop and explore a leased parcel of oil, gas, and mineral land, judgment for plaintiff is affirmed in part where: 1) plaintiff's letter to defendant met the La. Rev. Stat. Ann. section 31:136 demand requirement; and 2) district court did not clearly err in concluding that plaintiff would have been able to lease the disputed acreage more than once if it had been able to seismically survey the parcel prior to 2006. However, the judgment is vacated in part where neither the district court nor plaintiff could show an adequate ground -- indeed, any relevant precedent -- for awarding consequential damages for lost leasing and seismic revenues on the entire parcel.

[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.

[06/24] DDJ Mgmt., LLC v. Rhone Group L.L.C.
In an action claiming that defendants presented plaintiffs with corporate financial statements that were false and misleading, the appellate division's modification of the trial court's order dismissing plaintiffs' fraud claim is reversed where: 1) when a plaintiff has taken reasonable steps to protect itself against deception, it should not be denied recovery merely because hindsight suggested that it might have been possible to detect the fraud when it occurred; and 2) plaintiffs in this action for fraud have alleged facts from which a jury could find that they were justified in relying on the representations defendants made to them.

[06/23] Rectrix Aerodrome Ctrs., Inc. v. Barnstable Mun. Airport Comm'n
In plaintiff's suit against an airport commission and individual defendants, claiming that it was prevented from competing with defendant in the sale of jet fuel, district court's grant of summary judgment in favor of the defendants is affirmed where: 1) plaintiff's fraud claim fails as plaintiff was a commercial tenant of the airport and, given the self-service standards and lease terms, had no right and no reasonable expectation of being able to sell jet fuel at the airport; 2) the antitrust claim is barred by the state action doctrine given the Massachusetts statute; and 3) plaintiff's equal protection claim under section 1983 fails as no private entity at the airport has the privilege sought by plaintiff.

[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.

[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).

[06/17] Curd v. Mosaic Fertilizer, LLC
In a suit brought by fishermen against a defendant for negligently spilling pollutants and hazardous contaminants into a pond, the judgment of the Second District is quashed as commercial fishermen have both a statutory and common law cause of action for economic losses proximately caused by the negligent release of pollutants despite the fact that the fishermen do not own any property damages by the pollution.

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Construction

[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.

[06/22] US Ex Rel. Miller v. Bill Harbert Int'l. Const., Inc.
In a False Claims Act (FCA) action claiming that five companies and one individual rigged the bidding on three contracts in Egypt funded by the U.S. Agency for International Development, judgment for plaintiff is affirmed in part where: 1) the government's claims concerning one contract were not barred by the statute of limitations because they related back to plaintiff's original timely complaint; 2) although the false claims provisions of the Foreign Assistance Act and the FCA did overlap, the two statutes were fully capable of coexisting. However, the judgment is reversed in part where: 1) certain of plaintiff's claims were barred by the statute of limitations because he added them after the limitation period had run; and 2) allowing the government to contradict a factual stipulation called into question the credibility of defendant's counsel, severely impeding counsel's ability to effectively advocate for his client.

[06/21] Thrifty Payless, Inc. v. Mariners Mile Gateway, LLC
In a tenant's suit against the landlord over a lease for new commercial property, trial court's grant of defendant's motion for nonsuit and expert witness fees is affirmed where: 1) trial court's decision granting the nonsuit was proper as a matter of law; and 2) trial court did not err by allowing defendant to recover its expert witness fees pursuant to the lease.

[06/18] Tomlinson v. County of Alameda
Trial court's denial of plaintiffs' petition for a writ of administrative mandate, challenging a decision of a county to approve a subdivision development is reversed as the project was not exempt from CEQA review as the county used the wrong legal standard in applying the exemption and substantial evidence does not show the proposed subdivision satisfied the exemption's criteria.

[06/17] Jones v. Town of Carroll
In an action seeking a declaration that a zoning ordinance restricting landfills could not be validly applied to plaintiffs' property because the use variance and their activities on the land established a right to operate a landfill on all 50 acres, the appellate division's reversal of summary judgment for plaintiffs is reversed where the ordinance did not apply to plaintiffs because plaintiffs acquired a vested right to use their 50-acre parcel as a landfill for construction and demolition debris before the enactment of the zoning law.

[06/15] Commuter Rail Div. v. Surface Transp. Bd.
In a petition for review of the Surface Transportation Board's approval of the acquisition of certain railroads by another railroad, the petition is denied where: 1) one petitioner lacked standing because, if the board's decision were overturned, the construction authorization would not be affected and no new environmental impact statement would be required for the area; and 2) the board did not abuse its discretion in approving the transaction.

[06/10] Homebuilders Ass'n of Tulare/Kings Counties, Inc. v. City of Lemoore
In a challenge to a city's development impact fees as being invalid under the Mitigation Fee Act, the trial court's judgment is affirmed for the most part, but vacated in part where the fire protection impact fee for the east side of the city is invalid in that it is not reasonably related to the burden created by the development project.

[06/09] Tindle v. Pulte Home Corp.
In plaintiff's suit against the builder of his new home for sustaining serious injuries when his foot and leg sank into a hole concealed underneath the sod in the backyard, district court's grant of defendant's motion for summary judgment is affirmed where: 1) summary judgment on plaintiff's vendor liability under Restatement (Second) of Torts section 353 claim was properly granted because plaintiff knew or had reason to know the condition and risk involved; and 2) plaintiff's claim also fails because he has failed to produce evidence that defendant knew or had reason to know of the dangerous condition at the time of the sale.

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Contracts

[06/25] Rathborne Land Co. v. Ascent Engy., Inc.
In an action for breach of defendant's obligations to reasonably develop and explore a leased parcel of oil, gas, and mineral land, judgment for plaintiff is affirmed in part where: 1) plaintiff's letter to defendant met the La. Rev. Stat. Ann. section 31:136 demand requirement; and 2) district court did not clearly err in concluding that plaintiff would have been able to lease the disputed acreage more than once if it had been able to seismically survey the parcel prior to 2006. However, the judgment is vacated in part where neither the district court nor plaintiff could show an adequate ground -- indeed, any relevant precedent -- for awarding consequential damages for lost leasing and seismic revenues on the entire parcel.

[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] Greenspan v. LADT, LLC
In a trust's suit for breach of contract and other claims against two affiliated companies and individuals, trial court's confirmation of an arbitrator's award against defendants in the amount of $6.34 million is affirmed where: 1) per the JAMS rules, the arbitrator, not a court, determines what issues are arbitrable, and here, the arbitrator determined that the issue of joint and several liability was arbitrable; 2) arbitrator's finding of joint and several liability was rationally related to the parties' contract; 3) as to the timeliness of the final award under JAMS rules, the arbitrator's interpretation and application of the rules cannot be judicially reviewed on the merits; and 4) the suit against the arbitrator was barred by arbitral immunity and would not have caused a reasonable person to doubt the arbitrator's impartiality.

[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] Granite Rock Co. v. Int'l. Brotherhood of Teamsters
In an action against a labor union by an employer, invoking federal jurisdiction under section 301(a) of the Labor Management Relations Act (LMRA), seeking strike-related damages for the unions' alleged breach of contract, and asking for an injunction against an ongoing strike because the hold-harmless dispute was an arbitrable grievance under the new collective bargaining agreement (CBA), the Ninth Circuit's partial affirmance of the district court's order dismissing plaintiff's tortious interference claims and denying defendant's separate motion to send the parties' dispute over the CBA's ratification date to arbitration is affirmed in part where the Ninth Circuit did not err in declining to recognize a new federal common-law cause of action under LMRA section 301(a) for defendant's alleged tortious interference with the CBA. However, the judgment is reversed in part where the parties' dispute over the CBA's ratification date was a matter for the district court, not an arbitrator, to resolve.

[06/24] Baker v. Am. Horticulture Supply, Inc.
In an independent wholesale sales representative's suit for breach of contract, promissory fraud, and a violation under the Independent Wholesale Sales Representatives Contractual Relations Act of 1990, judgment of the trial court is affirmed in part and reversed in part where: 1) the trial court did not abuse its discretion in granting a new trial on the breach of contract and promissory fraud claims in concluding that the award of damages was excessive and that plaintiff was not entitled to a 10% commission in alleged sales; and 2) trial court's grant of defendant's motion for a directed verdict on the violation of the Act claim is reversed as the evidence is sufficient to support a finding that defendant willfully failed to enter into a written contract as required by the Act.

[06/24] US v. Jackson
District court's denial of defendant's motion to dismiss his indictment for making false statements on "a matter within the jurisdiction of the executive, legislative, or judicial branch of the Government," in violation of 18 U.S.C. section 1001, is affirmed as, defendant's false statements on his time-sheets, which were transmitted to the prime contractor, and from the prime contractor to the National Security Agency (NSA), and ultimately paid by the NSA, are matters within the jurisdiction of the executive branch under section 1001.

[06/23] Air Line Pilots Ass'n v. US Airways Group
In an airline pilots union's suit to establish and arbitrate before a multi-employer, multi-union board of adjustment, district court's dismissal of the complaint is affirmed as plaintiff's claim is foreclosed by the plain language of section 204 of the Railway Labor Act, which permits but does not require such a board adjustment, and plaintiff's alternative state law claim is meritless.

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Copyright

[06/22] Recording Indus. Assn. of Am. v. Library of Cong.
In the Recording Industry Association of America's petition for review of the Copyright Royalty Board's decision instituting a 1.5 percent per month late fee for late royalty payments, and implementing a penny-rate royalty structure for cell phone ringtones (under which copyright owners received 24 cents for every ringtone sold using their copyrighted work), the petition is denied where: 1) the Board appropriately took market evidence into account when imposing a late fee; 2) a copyright owner's ability to terminate a section 115 license in no way barred the imposition of a late fee; and 3) even if it were true that divided interests in a copyright made it difficult to make timely payments to each copyright owner, that fact would in no way counsel against the imposition of a late fee.

[06/21] Golan v. Holder
In an action challenging the constitutionality of Section 514 of the Uruguay Round Agreements Act (URAA), which granted copyright protection to various foreign works that were previously in the public domain in the U.S., summary judgment for plaintiffs is reversed where: 1) the government's interest in securing protections abroad for American copyright holders satisfied this substantial government interest standard; 2) Congress had substantial evidence from which it could reasonably conclude that the ongoing harms to American authors were real and not merely conjectural; and 3) there was substantial evidence from which Congress could conclude that Section 514 would alleviate these harms to American copyright holders.

[06/15] Penguin Group (USA) Inc. v. Am. Buddha
In a copyright infringement action in which the district court dismissed the action for lack of personal jurisdiction, the Second Circuit certifies the following question to the New York Court of Appeals: In copyright infringement cases, is the situs of injury for purposes of determining long-arm jurisdiction under N.Y. C.P.L.R. section 302(a)(3)(ii) the location of the infringing action or the residence or location of the principal place of business of the copyright holder?

[06/09] Benay v. Warner Bros. Entm't, Inc.
In an action alleging copyright infringement under federal law and breach of contract under California law based on defendants' alleged misappropriation of plaintiffs' screenplay, summary judgment for defendants is affirmed in part where, even if defendants had access to the screenplay, plaintiffs did not show sufficient similarity between the screenplay and the film (The Last Samurai) to maintain an infringement claim under federal copyright law. However, the judgment is reversed in part where novelty was not required for an implied-in-fact contract claim arising out of unauthorized use.

[06/07] Lahiri v. Universal Music & Video Dist. Corp.
In plaintiff's counsel's appeal from an order by the district court sanctioning him for his five-year bad faith pursuit of a frivolous copyright infringement claim, the order is affirmed where: 1) had counsel, a self-described experienced copyright lawyer, made even a cursory investigation into the circumstances of plaintiff's 21-year old composition, he would have known plaintiff had no copyright interest in music he composed for hire; 2) counsel's repeated misrepresentations of Indian copyright law clearly evidenced his recklessness and bad faith; and 3) the district court carefully excluded inadequately documented costs, as well as taxable costs not included in defendants' bill of costs.

[06/04] Thomsen v. Famous Dave's of Am., Inc.
In an action alleging copyright infringement and breach of contract arising out of defendants' alleged misappropriation of plaintiff's restaurant designs, summary judgment for defendants is affirmed where plaintiff unambiguously conveyed all contested copyrights to defendants by written contract.

[06/03] Montz v. Pilgrim Films & Television, Inc.
In an action for copyright infringement and related state claims based on defendants' use of plaintiffs' materials in developing a television show involving a team of "paranormal investigators" called "Ghost Hunters", dismissal of plaintiffs' state-law claims is affirmed where: 1) the Copyright Act preempted plaintiffs' implied contract claim because the rights asserted by the plaintiffs under the implied contract were equivalent to the rights of copyright owners under 17 U.S.C. section 106 -- namely, the exclusive rights to use and to authorize use of their work; and 2) defendants' alleged breach of confidence stemmed from an alleged violation of the very rights contained in section 106.

[05/25] Cosmetic Ideas, Inc. v. IAC/InteractiveCorp
In a copyright infringement action, the dismissal of the action for lack of subject matter jurisdiction is reversed where: 1) although 17 U.S.C. section 411(a)'s registration requirement was a precondition to filing a claim, it did not restrict a federal court's subject-matter jurisdiction; and 2) receipt by the Copyright Office of a complete application satisfies the registration requirement of section 411(a).

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Criminal Law & Procedure

[06/28] McDonald v. City of Chicago
In an action against the City of Chicago alleging that the City's handgun ban left plaintiffs vulnerable to criminals, judgment for defendants is reversed where the Fourteenth Amendment incorporates the Second Amendment right, recognized in Heller, to keep and bear arms for the purpose of self-defense.

[06/25] Dale v. Holder
In a petition for review of a decision by the Board of Immigration Appeals (BIA) upholding petitioner's order of removal under 8 U.S.C. section 1101(a)(43)(F) for being convicted of an aggravated felony, the petition is granted where: 1) although the argument petitioner presented to the BIA was not identical to that which he raised in his petition for review, the arguments were sufficiently related to establish that he presented his ground for relief to the administrative agency in the first instance; and 2) the BIA erred as a matter of law in concluding that petitioner could not legally plead guilty to an attempted violation of N.Y. Penal Law 120.10(3) or (4).

[06/25] Bailey v. Cain
In a murder prosecution, petitioner's appeal of the denial of his habeas petition is dismissed and the denial of petitioner's Fed. R. Crim. P. 60 motion is affirmed where: 1) omitted from petitioner's motion for a certificate of appealability was a specific reference to the judgment or order from which appeal was taken; and 2) petitioner made no attempt to show that he could not have obtained a transcription sooner if it were necessary to make his case before the district court.

[06/25] Woodfox v. Cain
In the state's appeal from a grant of petitioner's habeas petition in a murder prosecution, the order is reversed where: 1) petitioner failed to exhaust his Confrontation Clause claim in state court; 2) there was no indication in the state court adjudication that suggested a reliance on any procedural vehicle rather than the merits to deny relief; 3) it was not unreasonable to conclude that defense counsel did not render constitutionally deficient performance by failing to pursue a confrontation objection; and 4) the absence of a fingerprint expert did not cause petitioner prejudice that warrants habeas relief.

[06/25] US v. Williams
In a case involving a defendant's transport of 74 unlawful aliens, and the death of 19 of them after he left the aliens locked in the trailer of his tractor?trailer without activating the trailer's air conditioning unit, defendant's murder convictions are affirmed where: 1) the Government's articulated reasons for striking a veniremember were supported by the voir dire transcripts; and 2) it was not clear error for the district court to include defendant's first trip, during which he transported approximately 60 unlawful aliens, as part of the relevant conduct. However, his sentence is vacated where the district court erred in its definition of "act of violence" under the Federal Death Penalty Act and, under the correct definition, the evidence at trial cannot support a finding that the requisite threshold intent was met.

[06/25] People v. Bloom
Conviction of defendant for resisting arrest and other related charges, arising from making more than 40 harassing calls to 911 in a single evening, is affirmed over a challenge to a denial of a motion to suppress as a dispatcher lawfully arrested defendant for making the calls and she was not required to physically restrain him or to be present at the time of the arrest.

[06/25] US v. Womack
In a prosecution of defendant for distributing cocaine base, district court's application of a career offender enhancement when imposing a sentence of 360 months is vacated and remanded as, although the district court did not err by applying the career offender enhancement in defendant's guidelines calculation and the sentence imposed was within a correctly calculated guidelines range, the district court erred in stating that it could not consider the sentencing disparity between crack and powder cocaine offenses under the guidelines because district courts may disagree with the career offender enhancement on policy grounds related to the crack/powder disparity and impose sentences accordingly.

[06/24] People v. Int'l Fid. Ins., Co.
In a prosecution of defendant for attempted murder and other crimes, trial court's denial of a motion to vacate a forfeiture and exonerate bail is affirmed where: 1) the trial court did not err in denying the motion as, although defendant was subject to a greater potential maximum penalty under the first amended information than he had been under the original complaint, the charges in the first amended information were based on the same acts alleged in the complaint; and 2) the certificate of mailing of the notice of forfeiture which was signed by a deputy clerk on behalf of the clerk of the court was properly executed.

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Ethics & Disciplinary

[06/24] Florida Bar v. Ratiner
In Florida Bar's complaint against an attorney in connection to his alleged misconduct during the deposition of a representative of DuPont, referee's findings of fact and recommendations as to guilt are affirmed, as well as the mitigating factors and the aggravating factors found by the referee, but the referee's alternative recommendations of disbarment or a two-year suspension with respect to discipline are disapproved, and instead a public reprimand and a suspension of sixty days followed by two years' probation is imposed.

[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.

[06/17] Harrell v. Fla. Bar
In a First Amendment action by a lawyer who advertised the services of his firm extensively, claiming in a broad facial challenge that nine advertising-related provisions of the Rules Regulating the Florida Bar were so vague as to violate his due process rights, summary judgment for defendants is affirmed in part where plaintiff did not give any substantial reason to believe that submitting a bare script or outline of the advertisements he proposed would constitute a hardship. However, the judgment is reversed in part where: 1) plaintiff satisfied the injury-in-fact requirement with respect to five of the challenged rules; 2) plaintiff made an adequate threshold showing of vagueness in the application of the rules to his proposed advertisements; and 3) the bar did not bear its heavy burden of showing that it is "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur."

[06/10] Florida Bar v. Hines
In the Florida Bar's complaint against an attorney, arising from events in the course of acting as attorney and closing agent in a real estate transaction, the matter is remanded to the referee for a recommendation as to the appropriate discipline as the attorney violated Florida Bar 4-5.3(b) by allowing a nonlawyer, whom she neither employed, supervised, nor controlled, to have signatory authority over an escrow account she opened to handle real estate closings, resulting in misappropriation by that nonlawyer of funds held in trust in the escrow account.

[06/10] Florida Bar v. Scott
In Florida Bar's complaint against an attorney, arising from the attorney's representation of a client-firm against the Commodity Futures Trading Commission, a referee's report recommending the attorney be guilty of professional misconduct and suspended from the practice of law for eighteen months is affirmed in part and vacated in part where: 1) the referee's findings more than amply support the recommendations of guilt as to the conflict-of-interest claims as well as to claims of misrepresentation; and 2) referee's sanction recommendation is vacated and instead a three-year suspension is imposed.

[06/02] Plouffe v. Ligon
In an action seeking to enjoin attorney disciplinary proceedings that defendant initiated against plaintiff, dismissal of the action is affirmed where the district court properly abstained under Younger because: 1) the disciplinary proceedings against plaintiff implicated important state interests; 2) the attorney disciplinary proceedings provided plaintiff an adequate opportunity to raise his constitutional claims; and 3) Arkansas Rule of Professional Conduct 8.4(e) was not "flagrantly and patently" unconstitutional "in whatever manner and against whomever an effort might be made to apply it."

[05/03] Jenevein v. Willing
In an action by a censured state judge against the Texas State Commission on Judicial Conduct seeking to have the censure expunged from his record, the denial of plaintiff's motion for attorney's fees is affirmed where plaintiff was not a prevailing party because the commission's censure remained in effect.

[04/23] Fulton v. Med. Bd. of California
In plaintiff's suit against the Medical Board of California, claiming that the publication of plaintiff's disciplinary information on its Web site, including information about a medical malpractice judgment entered against plaintiff, and the surrender, retirement, and indefinite suspension of his licenses to practice medicine in other states, is not required to be disclosed because he was no longer licensed in California, judgment of the trial court denying plaintiff's claim for declaratory and injunctive relief is affirmed as Business and Professions Code sections 803.1 and 2027 required the Board to publish the information.

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Evidence

[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] Woodfox v. Cain
In the state's appeal from a grant of petitioner's habeas petition in a murder prosecution, the order is reversed where: 1) petitioner failed to exhaust his Confrontation Clause claim in state court; 2) there was no indication in the state court adjudication that suggested a reliance on any procedural vehicle rather than the merits to deny relief; 3) it was not unreasonable to conclude that defense counsel did not render constitutionally deficient performance by failing to pursue a confrontation objection; and 4) the absence of a fingerprint expert did not cause petitioner prejudice that warrants habeas relief.

[06/25] US v. Williams
In a case involving a defendant's transport of 74 unlawful aliens, and the death of 19 of them after he left the aliens locked in the trailer of his tractor?trailer without activating the trailer's air conditioning unit, defendant's murder convictions are affirmed where: 1) the Government's articulated reasons for striking a veniremember were supported by the voir dire transcripts; and 2) it was not clear error for the district court to include defendant's first trip, during which he transported approximately 60 unlawful aliens, as part of the relevant conduct. However, his sentence is vacated where the district court erred in its definition of "act of violence" under the Federal Death Penalty Act and, under the correct definition, the evidence at trial cannot support a finding that the requisite threshold intent was met.

[06/25] US v. King
In defendant's appeal from the district court's judgment revoking his term of supervised release and imposing additional supervised release conditions on the basis of five violations of his supervised release conditions, the order is affirmed where: 1) 18 U.S.C. section 3605's language did not limit a transferee court's power to violations that occur after transfer; 2) together, the ordinary meaning of "associate," the court's cases, and defendant's probation officer's instructions adequately notified defendant that telephone and e-mail communications with felons were prohibited; and 3) the evidence was sufficient to support the district court's finding that defendant's misrepresentation was intentional.

[06/25] People v. Bloom
Conviction of defendant for resisting arrest and other related charges, arising from making more than 40 harassing calls to 911 in a single evening, is affirmed over a challenge to a denial of a motion to suppress as a dispatcher lawfully arrested defendant for making the calls and she was not required to physically restrain him or to be present at the time of the arrest.

[06/25] Malone v. Lockheed Martin Corp.
In plaintiff's suit for employment discrimination based on race and retaliation, district court's grant of defendants' motion for judgment as a matter of law is affirmed where, for substantially the same reasons as the court indicated below, the record reveals no significant evidentiary basis for the verdict.

[06/25] Pickett v. Sheridan Health Care Ctr.
In plaintiff's Title VII suit against her former employer for being fired in retaliation for her complaints about sexual harassment by residents of defendant's nursing home, district court's denial of defendant's motions for a new trial and remittitur are affirmed where: 1) plaintiff presented enough evidence to persuade a reasonable jury that her complaints caused defendant to fire her; 2) it was not an abuse of discretion to deny the motion for a new trial on the basis of plaintiff's counsel's closing arguments; 3) it was not an abuse of discretion in denying remittitur on the compensatory damages as enough evidence supported a jury award of $25,000, which is well within the $200,000 cap set out in 42 U.S.C. section 1981a(b)(3)(C); and 4) it was not an abuse of discretion in denying remittitur on the punitive damage award and the logic of Exxon Shipping Co. v. Baker, 128 S. Ct. 2605 (2008) does not apply to this Title VII case.

[06/25] US v. Huff
Defendant's convictions and sentences for bribery and conspiracy to commit wire fraud and bribery are affirmed in part where: 1) the evidence was sufficient to establish a single conspiracy in this case, and there was no material variance between the indictment and the evidence presented at trial; and 2) the district court did not err in basing the loss amount on defendant's substantive counts of conviction only. However, a restitution order is vacated in part where the circuit court was unable to determine whether the amount of restitution imposed by the district court exceeded the victims' actual losses.

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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).

[06/24] DDJ Mgmt., LLC v. Rhone Group L.L.C.
In an action claiming that defendants presented plaintiffs with corporate financial statements that were false and misleading, the appellate division's modification of the trial court's order dismissing plaintiffs' fraud claim is reversed where: 1) when a plaintiff has taken reasonable steps to protect itself against deception, it should not be denied recovery merely because hindsight suggested that it might have been possible to detect the fraud when it occurred; and 2) plaintiffs in this action for fraud have alleged facts from which a jury could find that they were justified in relying on the representations defendants made to them.

[06/24] Granite Rock Co. v. Int'l. Brotherhood of Teamsters
In an action against a labor union by an employer, invoking federal jurisdiction under section 301(a) of the Labor Management Relations Act (LMRA), seeking strike-related damages for the unions' alleged breach of contract, and asking for an injunction against an ongoing strike because the hold-harmless dispute was an arbitrable grievance under the new collective bargaining agreement (CBA), the Ninth Circuit's partial affirmance of the district court's order dismissing plaintiff's tortious interference claims and denying defendant's separate motion to send the parties' dispute over the CBA's ratification date to arbitration is affirmed in part where the Ninth Circuit did not err in declining to recognize a new federal common-law cause of action under LMRA section 301(a) for defendant's alleged tortious interference with the CBA. However, the judgment is reversed in part where the parties' dispute over the CBA's ratification date was a matter for the district court, not an arbitrator, to resolve.

[06/24] Yanez v. SOMA Envtl. Eng'g, Inc.
In plaintiff's suit for injuries she suffered in an automobile accident, trial court's grant of defendants' motion to reduce the award for medical expenses from $44,519.01 to $18,368.24 is reversed and remanded where: 1) trial court erred in reducing plaintiff's damages to the amount actually paid by her insurers as the amounts written off by plaintiff's health care providers constitute collateral benefits of her insurance; and 2) on remand, the trial court is to award plaintiff prejudgment interest under Civ. Code section 3291.

[06/23] Espinosa v. Kirkwood
In plaintiffs' suit against the driver of their getaway vehicle (they were participants in a burglary) for damages for personal injuries sustained in a vehicle collision while fleeing from the police, judgment of the trial court is affirmed as, because their injuries were "in any way proximately caused by their commission of a felony or immediate flight therefrom," plaintiffs were barred from recovering damages based on negligence.

[06/18] Wal-Mart Stores, Inc. v. Merrell
In plaintiffs' wrongful death and survival claims against Wal-Mart for the death of their son from smoke inhalation, claiming that a halogen lamp purchased from Wal-Mart caused the fire, the court of appeals' reversal of the trial court's grant of defendant's motion for summary judgment on the ground that plaintiffs produced evidence on each challenged element of their cause of action is reversed as, plaintiff's expert's testimony was legally insufficient to support causation.

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Intellectual Property

[06/28] Bilski v. Kappos
In a patent application seeking protection for a claimed invention explaining how commodities buyers and sellers in the energy market could protect, or hedge, against the risk of price changes, the denial of the application is affirmed where: 1) the machine-or-transformation test is not the sole test for patent eligibility under 35 U.S.C. section 101; 2) Section 101 precluded a reading of the term "process" that would categorically exclude business methods; and 3) even though petitioners' application was not categorically outside of section 101 under the two atextual approaches the Court rejected today, that did not mean it was a "process" under section 101.

[06/23] Lincoln Nat'l Life Ins., Co. v. Transamerica Life Ins., Co.
In a suit for patent infringement, related to computerized methods for administering variable annuity plans, district court's denial of defendants' motion for summary judgment as a matter of law that it does not infringe the claims at issue of the '201 patent is reversed and remanded where: 1) the district court erred in denying defendants' motion for JMOL of noninfringement as the evidence on the record does not support jury's verdict of infringement; and 2) because defendant did not infringe, its argument that the district court abused its discretion by refusing to grant it leave to amend its complaint to assert a claim for invalidity under 35 U.S.C. section 101 need not be addressed.

[06/22] Recording Indus. Assn. of Am. v. Library of Cong.
In the Recording Industry Association of America's petition for review of the Copyright Royalty Board's decision instituting a 1.5 percent per month late fee for late royalty payments, and implementing a penny-rate royalty structure for cell phone ringtones (under which copyright owners received 24 cents for every ringtone sold using their copyrighted work), the petition is denied where: 1) the Board appropriately took market evidence into account when imposing a late fee; 2) a copyright owner's ability to terminate a section 115 license in no way barred the imposition of a late fee; and 3) even if it were true that divided interests in a copyright made it difficult to make timely payments to each copyright owner, that fact would in no way counsel against the imposition of a late fee.

[06/21] Golan v. Holder
In an action challenging the constitutionality of Section 514 of the Uruguay Round Agreements Act (URAA), which granted copyright protection to various foreign works that were previously in the public domain in the U.S., summary judgment for plaintiffs is reversed where: 1) the government's interest in securing protections abroad for American copyright holders satisfied this substantial government interest standard; 2) Congress had substantial evidence from which it could reasonably conclude that the ongoing harms to American authors were real and not merely conjectural; and 3) there was substantial evidence from which Congress could conclude that Section 514 would alleviate these harms to American copyright holders.

[06/18] Encyclopedia Britannica, Inc. v. Alpine Elec. of Am., Inc.
In a patent infringement suit by Encyclopedia Britannica against various defendants, involving patents relating to a multimedia database search system for retrieving textual and graphical information, district court's grant of summary judgment in favor of defendants in declaring the patents invalid as anticipated by foreign patent application is affirmed as section 120 requires each application in the chain of priority to refer to the prior applications, and here, the patents in suit cannot claim priority as the '955 application failed to specifically reference the earlier filed '917 application and did not claim priority to the '917 application.

[06/16] Wordtech Sys., Inc. v. Integrated Networks Solutions, Inc.
In a patent infringement suit against defendant and its two employees, related to patents involving technology for automated duplication of compact discs, district court's judgment is affirmed in part, reversed in part and remanded where: 1) district court's denial of defendants' Rule 59(a) motion is reversed and remanded as the jury's verdict of the two employees' individual liability of direct infringement, despite the lack of instructions on defendant's existence or piercing its corporate veil, was plain error that requires a new trial; 2)jury verdict of individual liability for inducement is reversed as it involved a mistake of law; 3) district court's legal error in presenting the contributory infringement issue with respect to individual liability of the two employees to the jury requires a new trial; 4) because the verdict was clearly not supported by the evidence and was based on only speculation or guesswork, district court's denial of defendants' Rule 59(a) motion is reversed and remanded for a new trial on damages; and 5) the district court did not abuse its discretion by denying defendants' motion for leave to amend.

[06/15] Penguin Group (USA) Inc. v. Am. Buddha
In a copyright infringement action in which the district court dismissed the action for lack of personal jurisdiction, the Second Circuit certifies the following question to the New York Court of Appeals: In copyright infringement cases, is the situs of injury for purposes of determining long-arm jurisdiction under N.Y. C.P.L.R. section 302(a)(3)(ii) the location of the infringing action or the residence or location of the principal place of business of the copyright holder?

[06/15] Mee Indus. v. Dow Chem. Co.
In a malicious prosecution suit based on an underlying, allegedly meritless patent infringement action, partial judgment for plaintiff is affirmed where: 1) sufficient evidence supported the jury's conclusions that Dow filed the patent infringement suit without the requisite probable cause and did not rely in good faith on the advice of counsel; 2) the evidence was not sufficient to meet the clear and convincing standard required for an award of punitive damages; and 3) the district court did not err in excluding plaintiff's loss of goodwill theory of damages.

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Legal Malpractice

[06/21] Med. Assurance Co., Inc. v. Hellman
District court's order issuing a stay of federal proceedings in an insurer's request for declaratory judgment, claiming that it no longer has a duty to defend or indemnify a doctor due to his disappearance in more than 350 medical malpractice claims, is reversed and remanded as it was an abuse of discretion to stay this action.

[06/17] Price v. Wolford
In the Oklahoma Health Care Authority (OHCA)'s appeal from the district court's order allotting part of a malpractice settlement to OHCA in full satisfaction of the lien, the order is reversed where the district court correctly construed Oklahoma law but erred in finding that the settling parties had proved by clear and convincing evidence that only $67,666.67 of the settlement could be attributed to medical care paid by Medicaid.

[06/17] Estate of Schneider v. Finmann
In a legal malpractice action alleging that defendants negligently advised decedent to transfer, or failed to advise decedent not to transfer, an insurance policy which resulted in an increased estate tax liability, the appellate division's affirmance of dismissal of the action is reversed where an attorney may be held liable for damages resulting from negligent representation in estate tax planning that causes enhanced estate tax liability.

[06/17] Martinez v. Cui
In plaintiff's suit against a first-year medical resident claiming that she was sexually assaulted during an examination, judgment in favor of the defendant is affirmed where: 1) the district court's evidentiary rulings were not error; and 2) the jury was correctly instructed on the shocks-the-conscious element as this standard applies to claims that an executive official's sexual assault violated the substantive due process clause.

[06/09] Anaya-Burgos v. Lasalvia-Prisco
In plaintiff's suit against an oncologist and others, claiming that the death of his wife was the result of defendants' negligent acts and omissions that induced her to purchase their "cancer vaccine" treatment and forego conventional cancer treatments, a grant of defendants' motion for judgment as a matter of law is vacated and remanded as, plaintiff put forth sufficient evidence including expert testimony, from which a reasonable jury could have concluded - and did conclude - that defendants' breach of the standard of care towards the wife caused her untimely death by inducing her to choose their treatment with promises that it would cure her.

[05/26] Sandarg v. Dental Bd. of California
Superior court's denial of plaintiff's petition for a writ of mandate seeking reinstatement of his dental license, which was revoked by the Dental Board of California, is affirmed as the standard of proof for a petition to revoke a dental licentiate's probation is preponderance of the evidence.

[05/26] Wallace v. McGlothan
In plaintiffs' medical malpractice suit against a doctor for permanent injury to plaintiff's eye as a result of negligently performed LASIK surgery, district court's denial of defendant's motions for judgment as a matter of law is affirmed as the evidence was sufficient to show that the doctor's negligence was the proximate cause of the plaintiffs' injuries and the doctor has not shown any perjury or discovery violations by the plaintiffs that would warrant reversal.

[05/20] Lockton v. O'Rourke
In plaintiff's legal malpractice suit, trial court's dismissal following demurrers by defendants is affirmed in part, reversed in part and remanded where: 1) trial court properly sustained the demurrer on the ground that defendants did not continue to represent plaintiff on his claims against the defendants in the underlying case for a sufficient time to toll the statute of limitations; and 2) trial court's order denying an award of attorney fees to two attorneys is reversed.

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Patent

[06/28] Bilski v. Kappos
In a patent application seeking protection for a claimed invention explaining how commodities buyers and sellers in the energy market could protect, or hedge, against the risk of price changes, the denial of the application is affirmed where: 1) the machine-or-transformation test is not the sole test for patent eligibility under 35 U.S.C. section 101; 2) Section 101 precluded a reading of the term "process" that would categorically exclude business methods; and 3) even though petitioners' application was not categorically outside of section 101 under the two atextual approaches the Court rejected today, that did not mean it was a "process" under section 101.

[06/23] Lincoln Nat'l Life Ins., Co. v. Transamerica Life Ins., Co.
In a suit for patent infringement, related to computerized methods for administering variable annuity plans, district court's denial of defendants' motion for summary judgment as a matter of law that it does not infringe the claims at issue of the '201 patent is reversed and remanded where: 1) the district court erred in denying defendants' motion for JMOL of noninfringement as the evidence on the record does not support jury's verdict of infringement; and 2) because defendant did not infringe, its argument that the district court abused its discretion by refusing to grant it leave to amend its complaint to assert a claim for invalidity under 35 U.S.C. section 101 need not be addressed.

[06/18] Encyclopedia Britannica, Inc. v. Alpine Elec. of Am., Inc.
In a patent infringement suit by Encyclopedia Britannica against various defendants, involving patents relating to a multimedia database search system for retrieving textual and graphical information, district court's grant of summary judgment in favor of defendants in declaring the patents invalid as anticipated by foreign patent application is affirmed as section 120 requires each application in the chain of priority to refer to the prior applications, and here, the patents in suit cannot claim priority as the '955 application failed to specifically reference the earlier filed '917 application and did not claim priority to the '917 application.

[06/16] Wordtech Sys., Inc. v. Integrated Networks Solutions, Inc.
In a patent infringement suit against defendant and its two employees, related to patents involving technology for automated duplication of compact discs, district court's judgment is affirmed in part, reversed in part and remanded where: 1) district court's denial of defendants' Rule 59(a) motion is reversed and remanded as the jury's verdict of the two employees' individual liability of direct infringement, despite the lack of instructions on defendant's existence or piercing its corporate veil, was plain error that requires a new trial; 2)jury verdict of individual liability for inducement is reversed as it involved a mistake of law; 3) district court's legal error in presenting the contributory infringement issue with respect to individual liability of the two employees to the jury requires a new trial; 4) because the verdict was clearly not supported by the evidence and was based on only speculation or guesswork, district court's denial of defendants' Rule 59(a) motion is reversed and remanded for a new trial on damages; and 5) the district court did not abuse its discretion by denying defendants' motion for leave to amend.

[06/15] Mee Indus. v. Dow Chem. Co.
In a malicious prosecution suit based on an underlying, allegedly meritless patent infringement action, partial judgment for plaintiff is affirmed where: 1) sufficient evidence supported the jury's conclusions that Dow filed the patent infringement suit without the requisite probable cause and did not rely in good faith on the advice of counsel; 2) the evidence was not sufficient to meet the clear and convincing standard required for an award of punitive damages; and 3) the district court did not err in excluding plaintiff's loss of goodwill theory of damages.

[06/11] Advanced Magnetic Closures, Inc. v. Rome Fastener Corp.
In a patent infringement suit, related to patents for disclosing a magnetic snap fastener commonly used in women's handbags, judgment of the district court is affirmed in part and reversed in part where: 1) the district court was correct in holding the '773 patent unenforceable as the plaintiff and its president attempted to defraud the PTO; 2) district court did not err in finding that this case was an exceptional case under 35 U.S.C. section 285 justifying an award of attorney's fees; and 3) the district court abused its discretion by sanctioning plaintiff's attorney under 28 U.S.C. section 1927 as the court failed to find that the attorney acted in bad faith.

[06/10] Pequignot v. Solo Cup Co.
In a licensed patent attorney's qui tam action under 35 U.S.C. section 292 alleging that defendant had falsely marked its products with expired patent numbers for the purpose of deceiving the public, district court's judgment is affirmed in part and vacated in part where: 1) summary judgment of no liability in favor of defendant was proper as false marking, combined with knowledge of the falsity, merely creates a rebuttable presumption of intent to deceive the public, and here, defendant provided credible evidence that its purpose was not to deceive the public with either the expired patent markings or the "may be covered" language, and plaintiff raised no genuine issue of material fact showing otherwise; and 2) district court's determination on the meaning of the word "offense," in holding that defendant could have committed at most three offenses is vacated as Forest Group, 590 F.3d 1295 holds that every false marked product constitutes an "offense" under section 292.

[06/09] TriMed, Inc. v. Stryker Corp.
In a patent infringement suit, summary judgment for defendant of invalidity of the asserted claims of a patent relating to an implantable device used to set bone fractures is reversed where: 1) the district court improperly resolved genuine issues of material fact in favor of defendant; and 2) reassignment is advisable to preserve the appearance of justice as the district court has now been reversed twice after entering summary judgment against plaintiff, in both instances simply signing defendant's proposed statement of law and facts relevant to the decided issues, a disfavored practice in the Ninth Circuit.

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Trade Dress

[06/03] Amazing Spaces, Inc. v. Metro Mini Storage
In an action alleging infringement of a star design that plaintiff claimed as a service mark, summary judgment for defendant is affirmed in part where: 1) the record evidence was replete with similar or identical five-pointed stars, both raised and set in circles, and used in similar manners, such that -- notwithstanding the residual evidence of the presumption of validity -- no reasonable jury could find that the star symbol was even a mere refinement of this commonly adopted and well-known form of ornamentation; and 2) plaintiff failed to raise a fact issue regarding the existence of secondary meaning with respect to the symbol. However, the judgment is reversed in part where plaintiff had not yet had the opportunity to introduce evidence relating to its trade dress claims.

[05/06] Shell Co. (Puerto Rico) Ltd. v. Los Frailes Serv. Station, Inc.
In Shell's suit against a former franchisee under the Petroleum Practices Marketing Act, district court's grant of Shell's motion for permanent injunction is affirmed in part, vacated in part and remanded where: 1) district court's grant of a permanent injunction ordering an defendant to cease any use of Shell trademarks, trade dress, or color patterns, and to comply with the post-termination provisions of its franchise agreements with Shell are affirmed; 2) the portion of the injunction ordering and compelling defendant to allow Shell to continue in possession of the service station until the expiration of the lease in 2014 is vacated as Shell made no showing of irreparable harm that might justify an order giving it possession of the property for the full term of the lease; and 3) Shell's motion for summary judgment on defendant's antitrust counterclaims was properly granted.

[12/01] Guessous v. Chrome Hearts, LLC
In plaintiff's suit against defendant for infringement of jewelry designs, trademarks and copyrights, trial court's decision denying plaintiff's motion to strike defendant's complaint under the anti-SLAPP statute is affirmed as the filing of a lawsuit in a foreign country is not protected activity under the United States or California Constitutions as to implicate the statute.

[09/16] Art Attacks Ink, LLC v. MGA Ent'mt. Inc.
In a copyright, trademark, and trade dress infringement action, judgment as a matter of law for defendant on copyright and trade dress infringement claims is affirmed where: 1) defendant did not timely move for judgment as a matter of law, but the time limit under Fed. R. Civ. P. 50(b) is not jurisdictional; and 2) plaintiff failed to demonstrate that defendant had access to plaintiff's copyrighted works or that plaintiff's trade dress had acquired secondary meaning.

[06/11] Philip Morris USA, Inc. v. King Mtn. Tobacco Co.
In a trademark infringement action based on allegedly infringing cigarette packaging being sold on the Internet, an Indian reservation and elsewhere, the District Court's order staying the action in favor of proceedings before a tribal court is reversed where the tribal court did not have colorable jurisdiction over a nonmember's claims for trademark infringement on the Internet and beyond the Indian reservation. (Amended opinion)

[11/25] Bd. of Supervisors for La. State Univ. Agric. & Mech. Coll. v. Smack Apparel Co.
In a trademark dispute alleging that defendant infringed trademarks by selling t-shirts with several universities' color schemes and other identifying indicia referencing the games of the schools' football teams, summary judgment for plaintiffs is affirmed where: 1) the color schemes had secondary meaning and, although unregistered, were protectible marks; 2) there was a likelihood of confusion connecting the marks and the universities themselves; 3) the marks at issue were nonfunctional and thus subject to Lanham Act protection; 4) defendants' use of the marks was not a nominative fair use; 5) the defense of laches did not apply; 6) actual confusion was not a prerequisite to an award of money damages; and 7) plaintiffs were not entitled to attorneys' fees. (Revised opinion)

[11/25] Bd. of Supervisors for La. State Univ. Agric. & Mech. Coll. v. Smack Apparel Co.
In a trademark dispute alleging that defendant infringed trademarks by selling t-shirts with several universities' color schemes and other identifying indicia referencing the games of the schools' football teams, summary judgment for plaintiffs is affirmed where: 1) the color schemes had secondary meaning and, although unregistered, were protectible marks; 2) there was a likelihood of confusion connecting the marks and the universities themselves; 3) the marks at issue were nonfunctional and thus subject to Lanham Act protection; 4) defendants' use of the marks was not a nominative fair use; 5) the defense of laches did not apply; 6) actual confusion was not a prerequisite to an award of money damages; and 7) plaintiffs were not entitled to attorneys' fees.

[11/05] E.S.S. Entm't 2000, Inc. v. Rock Star Videos, Inc.
In an action brought by the operator of a strip club in Los Angeles against the producer of a video game in the "Grand Theft Auto" series claiming, inter alia, that the game's depiction of a strip club called the "Pig Pen" infringed its trademark and trade dress associated with the "Play Pen", summary judgment for defendant-game producer is affirmed where: 1) modification of plaintiff's trademark was not explicitly misleading and was thus protected by the First Amendment; and 2) the First Amendment defense applies equally to plaintiff's state law claims as to its Lanham Act claim.

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Trade Secrets

[05/19] R.C. Olmstead, Inc. v. CU Interface, LLC
In a copyright and trade secret infringement suit brought by a provider of credit union software against the developer of a competing credit union software, district court's grant of summary judgment in favor of the defendant is affirmed where: 1) district court did not abuse its broad discretion in refusing to compel additional discovery and plaintiff can point to no errors of fact or law in the court's denial of its employees access to defendant's software; 2) district court did not abuse its discretion in barring the use of an expert's report because the report failed to comply with the requirements of Fed. Rule of Civ. Proc. 26(a)(2)(B); 3) plaintiff was not entitled to take the deposition of defendant's expert witness because defendant designated him as a non-testifying expert; 4) district court did not abuse its discretion in declining to impose a sanction on defendant because plaintiff was not left without a remedy for any harm caused by the third party's spoliation; 5) defendant was entitled to summary judgment on the merits on the copyright infringement claims because plaintiff has not produced any direct evidence of copying and indirect evidence of copying was not sufficient to create a fact question as to whether copying occurred; and 6) district court correctly held that plaintiff's end user product was not a trade secret because plaintiff did not take reasonable steps to maintain its secrecy.

[05/11] Nationwide Mut. Ins. Co. v. Mortensen
In an action arising out of the retention of policyholder information by former insurance agents for plaintiff, summary judgment dismissing both plaintiff's claims and defendants' counterclaims is affirmed where: 1) the policyholder information was readily available from another source, and thus did not qualify as a trade secret as a matter of law; 2) plaintiff effectively abandoned its breach of fiduciary duty claim on appeal because it failed to challenge the district court's determination that it could not prove damages on that claim; 3) the agents did not qualify as employees covered by ERISA as a matter of law; and 4) the agents pointed to no evidence showing that plaintiff's allegedly unfair trade practices resulted in an ascertainable loss.

[04/29] Silvaco Data Sys. v. Intel Corp.
In plaintiff's suit against Intel Corporation alleging that it misappropriated certain trade secrets used by plaintiff in its software products, judgment of the trial court in favor of the defendant is affirmed where: 1) Intel cannot be liable if it never possessed or had access to the source code but only had executable, machine-readable code compiled by its supplier from source code; and 2) plaintiff failed to plead a viable claim not based upon a misappropriation of trade secrets.

[04/21] BDT Prod., Inc. v. Lexmark Int'l, Inc.
District court's grant of defendant's motion for attorney fees and imposition of sanctions arising from a grant of partial summary judgment in favor of defendant in a suit brought by its one-time partners, arising from a claim that defendant had misappropriated trade secrets in developing a printer tray that substantially resembled a tray developed by plaintiff, is vacated and remanded where: 1) sanctions under 28 U.S.C. section 1927 may be imposed only on individual attorneys, and not law firms; 2) district court did not abuse its discretion in finding that the law firm, Meisenheimer, pursued a meritless lawsuit, and that it knew or should have known that it was pursuing a meritless suit; but 3) district court relied in part on a misstatement of Sixth Circuit law and without sufficient evidence imputed plaintiff's and the other law firm's improper purpose to Meisenheimer in finding that Meisenheimer had acted in bad faith.

[04/05] JustMed, Inc. v. Byce
In a copyright infringement and trade secret action claiming that defendant misappropriated a software program used on plaintiff's digital audio larynx device, judgment for plaintiff is affirmed in part where the district court did not err in finding that defendant was an employee of plaintiff when he worked on the program, and thus the program was a work for hire for copyright purposes. However, the judgment is reversed in part where the district court's finding that defendant disclosed part of the source code to the Copyright Office was insufficient to hold defendant liable for misappropriation under a disclosure theory.

[02/12] Ansys, Inc. v. Computational Dynamics N. Am., Ltd.
In plaintiff's suit against its former employee and his new employer (a competitor) claiming breach of noncompetition and confidentiality clauses in the employee's employment contract, interference with contractual relations, misappropriation of trade secrets, and unfair trade practices, denial of plaintiff's request for preliminary injunction to enforce the provisions of a one-year noncompetition clause in the employment agreement is affirmed as the district court did not abuse its discretion by finding that plaintiff has failed to make a showing of likelihood of success on the breach of contract claim, or a likelihood of irreparable injury.

[12/29] Jasmine Networks, Inc. v. Sup. Ct.
In plaintiff's action under the California Uniform Trade Secrets Act claiming that the defendants misappropriated certain trade secrets belonging to plaintiff, trial court's dismissal of the complaint on the ground that plaintiff had forfeited its standing to maintain an action for misappropriation when it had gone through bankruptcy proceedings shortly after filing the complaint is reversed where: 1) a current ownership requirement is not supported by general principles of property or tort law; 2) existing authority imposes no "current ownership requirement" on trade secret plaintiffs; 3) adoption of a current ownership requirement in trade secrets cases is not warranted by analogy to trademark, patent, or copyright law; and 4) no policy concern preponderates in favor of current ownership requirement.

[12/03] Ultimax Cement Mfg. Corp. v. CTS Cement Mfg. Corp.
In a patent infringement action involving patents related to rapid-hardening, high-strength cement, summary judgments finding noninfringement and that no trade secret was violated is affirmed in part, dismissed in part, vacated in part, reversed in part, and remanded where: 1) district court's finding of noninfringement is vacated and remanded as the court erred in claim construction of the the term "soluble CaSo4 anhydride"; 2) district court's grant of summary judgment of laches is reversed and remanded relating to one patent as it was not clear that plaintiff knew or should have known of defendant's alleged infringement before it conducted discovery on another patent in 2002; 3) district court erred in granting summary judgment finding that one patent claim was indefinite; 4) plaintiffs' appeal with respect to one patent is dismissed as it waived the argument of its invalidity; 5) denial of plaintiffs' motion to amend their complaint is affirmed; 6) summary judgment finding no trade secret violations is affirmed; 7) the district court did not abuse its discretion in denying plaintiffs' motion to disqualify defendants' attorneys; and 8) the district court's decision on exceptional case status is vacated for further proceedings on remand.

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Trademark

[06/03] Amazing Spaces, Inc. v. Metro Mini Storage
In an action alleging infringement of a star design that plaintiff claimed as a service mark, summary judgment for defendant is affirmed in part where: 1) the record evidence was replete with similar or identical five-pointed stars, both raised and set in circles, and used in similar manners, such that -- notwithstanding the residual evidence of the presumption of validity -- no reasonable jury could find that the star symbol was even a mere refinement of this commonly adopted and well-known form of ornamentation; and 2) plaintiff failed to raise a fact issue regarding the existence of secondary meaning with respect to the symbol. However, the judgment is reversed in part where plaintiff had not yet had the opportunity to introduce evidence relating to its trade dress claims.

[05/26] Deere & Co. v. Int'l Trade Comm'n
The judgment of the International Trade Commission finding that the sales of European version self-propelled John Deere forage harvesters in the U.S. by intervenors did not violate section 337 of the Tariff Act is vacated and remanded as, although the Commission's determination that the sales of the European-version harvesters in the U.S. by official Deere dealers were authorized is supported by substantial evidence, the Commission improperly applied the "all or substantially all" test.

[05/24] American Needle, Inc. v. Nat'l Football League
In an antitrust action challenging the NFL's grant to Reebok of an exclusive license to create apparel incorporating the NFL's intellectual property, the Seventh Circuit's affirmance of summary judgment for defendants is reversed where the alleged conduct related to licensing of intellectual property constituted concerted action that was not categorically beyond the coverage of Section 1 of the Sherman Act.

[05/19] V Secret Catalogue, Inc. v. Victoria's Secret Stores, Inc.
In plaintiff's trademark "dilution by tarnishment" suit against a small retail store that sells sex toys and other sexually oriented products, pursuant to the Trademark Dilution Revision Act of 2006, the judgment of the district court in favor of the plaintiff is affirmed as, the new Act creates a kind of a rebuttable presumption, or at least a very strong inference, that a new mark used to sell sex related products is likely to tarnish a famous mark if there is a clear semantic association between the two, and here, that presumption has not been rebutted.

[05/12] Fred Beverages, Inc. v. Fred's Capital Mgmt. Co.
In plaintiff's action seeking to cancel a trademark in International Class 32 on the ground of abandonment, the decision of the Trademark Trial and Appeal Board (TTAB) denying a motion to leave amend pending the petition is reversed as the TTAB's denial of the motion for leave on the grounds that the filing fee did not accompany the motion was arbitrary and capricious.

[05/07] Caliber Automotive Liquidators, Inc. v. Premier Chrysler
In a trademark infringement action involving service marks related to advertising promotions for car dealerships, summary judgment for defendant is reversed where: 1) plaintiff proffered competent summary judgment evidence of actual confusion of the car dealerships, the relevant purchasing population; and 2) the mark at issue had attained federal incontestible status, and thus the district court erred in holding that the mark was not entitled to strong protection.

[05/06] Au-Tomotive Gold Inc. v. Volkswagen of Am., Inc.
In a declaratory judgment action involving whether the sale by plaintiff of marquee license plates bearing Volkswagen badges purchased from Volkswagen constitutes trademark infringement, or whether the sale of the plates is protected by the "first sale" doctrine, summary judgment for Volkswagen is affirmed where the "first sale" doctrine did not provide a defense because plaintiff's marquee license plates create a likelihood of confusion as to their origin.

[05/06] Shell Co. (Puerto Rico) Ltd. v. Los Frailes Serv. Station, Inc.
In Shell's suit against a former franchisee under the Petroleum Practices Marketing Act, district court's grant of Shell's motion for permanent injunction is affirmed in part, vacated in part and remanded where: 1) district court's grant of a permanent injunction ordering an defendant to cease any use of Shell trademarks, trade dress, or color patterns, and to comply with the post-termination provisions of its franchise agreements with Shell are affirmed; 2) the portion of the injunction ordering and compelling defendant to allow Shell to continue in possession of the service station until the expiration of the lease in 2014 is vacated as Shell made no showing of irreparable harm that might justify an order giving it possession of the property for the full term of the lease; and 3) Shell's motion for summary judgment on defendant's antitrust counterclaims was properly granted.

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