U.S. First Circuit: January 2010 Archives
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January 2010 Archives

US v. Larios , No. 08-1299

District court's conviction of defendants for drug related crimes, after they were captured on audio/video participating in drug transactions in a motel room with an undercover agent, is affirmed where: 1) any error in admitting the recording at sentencing was harmless, and as such, question of whether the defendants had a reasonably expectation of privacy in the motel room need not be addressed; and 2) district court's rejection of a defendant's challenge to the admission of the audio recording at trial is affirmed as defendant's brief engagement with the motel room did not justify a reasonably expectation of privacy in the room, and thus his communications were not protected by Title III.     

Read US v. Larios , No. 08-1299

Appellate Information

Appeal from the United States District Court for the District of Massachusetts

Decided January 29, 2010

Judges

Before:  Lynch, Chief Judge, Gajarsa and Lipez, Circuit Judges

Opinion by  Circuit Judge Lipez

Counsel

For Appellant: J. Hilary Billings, Oscar Cruz, Jr,  Stephen Paul Maidman

For Appellee:     Mark T. Quinlivan, Assistant United States Attorney, with whom Michael K. Loucks, Acting United States Attorney,

In parties' dispute over the rights to a song, jury verdict in favor of the defendants is affirmed where: 1) district court did not err in instructing the jury with respect to the 1982 contract; 2) district court did not err in refusing to give missing witness instruction; and 3) plaintiff's remaining claims are rejected.   

Read Latin American Music Co. v. American Soc'y of Composers Authors & Publishers, No. 08-1498

Appellate Information

Appeal from the United States District Court for the District of Puerto Rico

Decided January 29, 2010

Judges

Before:  Baldock, Howard, and Torrella, Circuit Judges

Opinion by  Circuit Judge Hoawrd

Counsel

For Appellant:  Mauricio Hernandez Arroyo

For Appellee:       Richard H. Reimer, Diego A. Ramos, Fiddler Gonzáles & Rodriguez, PSC, Stephen S. Young, and Holland & Knight LLP

US v. Cartagena, No. 08-2177

Conviction of defendant for drug-trafficking conspiracy is affirmed where: 1) district court did not err in concluding that the omission or misstatement of information of an informant's activities did not provide grounds for suppression; and 2) district court did not abuse its discretion in refusing to require the government to produce documents containing identifying information as to the other informants.   

Read US v. Cartagena, No. 08-2177

Appellate Information

Appeal from the United States District Court for the District of Massachusetts

Decided January 29, 2010

Judges

Before:  Lynch, Chief Judge, Stahl, and Torrella, Circuit Judges

Opinion by  Circuit Judge Torruella

Counsel

For Appellant:  Alan D. Rose, Rose, Chinitz & Rose

For Appellee:    Kelly Begg Lawrence, Assistant United States Attorney,  Michael K. Loucks, Acting United States Attorney

US v. Carl , No. 08-2281

Conviction of defendant for distributing drugs and sentenced to 120 months imprisonment and 3 years of supervised release is affirmed where: 1) even if the district court erred in admitting defendant's confession, any error was harmless beyond a reasonably doubt; 2) any error in admitting disputed statements was harmless beyond a reasonably doubt; 3) district court did not commit clear error in determining drug quantity; and 4) defendant has not shown that the district court failed to comply with Rule 32(i)(3)(B) or that any other error occurred by including the acquitted conduct in the PSR.   

Read US v. Carl , No. 08-2281

Appellate Information

Appeal from the United States District Court for the District of Puerto Rico

Decided January 29, 2010

Judges

Before:  Lynch, Chief Judge, Stahl, Circuit Judge, and DiClerico

Opinion by  District Judge DiClerico

Counsel

For Appellant:  Robert C. Andrews

For Appellee:     Margaret D. McGaughey, Appellate Chief, Paula D. Silsby, United States Attorney

Ramirez-Lebron v. Int'l Shipping Agency, Inc. , No.08-2321

In a labor dispute involving seniority rights between two employee groups of defendant's, district court's dismissal of the complaint is reversed and remanded as, the district court erroneously dismissed plaintiffs' complaint, as the factual allegations are sufficient under section 301 to establish plaintiffs' standing and sustain their claim that defendant, by entering into a side agreement with the other employees designed to procure an arbitration award, breached the CBA and effectively repudiated its arbitration provision, thereby estopping defendant from posing the defense of exhaustion.   

Read Ramirez-Lebron v. Int'l Shipping Agency, Inc. , No.08-2321

Appellate Information

Appeal from the United States District Court for the District of Puerto Rico

Decided January 29, 2010

Judges

Before:  Torruella, Baldock, and Lipez, Circuit Judges

Opinion by  Circuit Judge Baldock

Counsel

For Appellant:  Juan H. Saavedra Castro

For Appellee:       Antonio Cuevas Delgado

In a dispute between an artist and a museum over the implementation and installation of a football-field sized artwork, judgment of the district court in favor of the museum is affirmed in part, vacated in part and remanded where: 1) the Visual Artists Rights Act (VARA) applies to unfinished works, and as such, genuine issues of material fact forecloses summary judgment on one of the artist's VARA claims - that the museum violated his right of artistic integrity by modifying the installation; and 2) the artist asserted a viable claim under the Copyright Act that the museum violated his exclusive right to display his work publicly.     

Read Massachusetts Museum of Contemporary Art Found., Inc. v. Buchel, No. 08-2199

Appellate Information

On Appeal from the United States District Court for the District of Massachusetts

Decided January 27, 2010

Judges

Before:  Lipez and Howard, Circuit Judges, and Woodcock, District Judge

Opinion by  Circuit Judge Lipez

Counsel

For Appellant:  George T. Conway III, Elaine P. Golin, Wachtell, Lipton, Rosen & Katz, John C. Blessington, Sara E. Yevics, K&L Gates LLP, Elena M. Paul, Sergio Muñoz Sarmiento, and Volunteer Lawyers for the Arts

For Appellee:    John L. Gardiner, Elizabeth A. Hellmann, Kurt Wm. Hmr, Lindsay R. Dickerson, and Skadden, Arps, Slate, Meagher & Flom LLP

Weng v. Holder, No. 09-1273

Chinese citizen's petition for review of the BIA's denial of a petition for asylum and related relief is denied as, although the IJ discussed some but not all of the documentary evidence petitioner introduced to support her claim of past religious persecution, the remaining evidence would not compel a factfinder to conclude that she had suffered past religious persecution or feared future persecution or that she was credible about her reasons for leaving China.  

Read Weng v. Holder, No. 09-1273

Appellate Information

On Petition for Review of an Order of the Board of Immigration Appeals

Decided January 27, 2010

Judges

Before:  Lynch, Chief Judge,  Torruella and Stahl, Circuit Judges

Opinion by  Lynch, Chief Judge

Counsel

For Appellant:  William P. Joyce and Joyce & Associates P.C.

For Appellee:    Terri J. Scadron, Assistant Director, Office of Immigration Litigation, and Tony West, Assistant Attorney General

J.R. v. Gloria, No. 09-1404

In plaintiffs' action raising substantive due process claims under 42 U.S.C. section 1983 and state law claims under Rhode Island negligence law for damages against two state employees of the Department of Children, Youth, and Families (DCYF), grant of judgment as a matter of law to the defendants under Rule 50(a) is affirmed as the district court properly granted defendants qualified immunity on the section 1983 action and judgment for defendants pursuant to state sovereign immunity and qualified immunity defenses under Rhode Island state law.  

Read J.R. v. Gloria, No. 09-1404

Appellate Information

Appeal from the United States District Court for the District of Rhode Island

Decided January 27, 2010

Judges

Before:  Lynch, Chief Judge, Lipez and Howard, Circuit Judges

Opinion by  Lynch, Chief Judge

Counsel

For Appellant:  Thomas L. Mirza and Pelletier & Mirza, LLP

For Appellee:    Genevieve M. Allaire Johnson, Special Assistant Attorney General, Patrick C. Lynch, Attorney General

US v. Alfonso-Reyes, No. 06-1484

Convictions of defendants for defrauding the Farm Service Agency (FSA) of emergency loans and incentives to qualified farmers following the damage inflicted on the Commonwealth of Puerto Rico by a hurricane is affirmed where: 1) evidence is sufficient to support defendants' convictions; 2) district court did not abuse its discretion by instructing the jury on sentencing enhancements; 3) district court did not abuse its discretion in its pre-trial disqualification of a defendant's attorney; 4) district court's imposition of a 27-month sentence defendant is not unreasonable; and 5) district court did not err in awarding a four-point leadership role enhancement on the other defendant. 

Read US v. Alfonso-Reyes, No. 06-1484

Appellate Information

Appeal from the United States District Court for the District of Puerto Rico

Decided January 25, 2010

Judges

Before:  Lynch, Chief Judge, Gajarsa and Lipez, Circuit Judges

Opinion by  Circuit Judge Gajarsa

Counsel

For Appellant:  Raymond L. Sanchez Maciera,   Rachel Brill

For Appellee:     Rosa Emilia Rodríguez-Velez, Nelson Perez-Sosa

Gray v. Brady, No. 08-2548

District court's denial of defendant's request for habeas relief, convicted of distributing cocaine and for doing so in a public park, is affirmed where: 1) defendant's arguments that the trial court mistakenly believed that defendant, because he is not Hispanic, could not object to the exclusion of an Hispanic juror is without merit; 2) defendant's argument that the state courts wrongly ignored the evidence of discriminatory animus toward the African-American jurors in finding no discriminatory animus against the Hispanic juror is without merit; and 3) defendant's argument that the state courts erred in evaluating the challenges to the Hispanic juror and the African-American jurors separately, as opposed to challenges directed at "minority jurors" as a class is without merit, as defendant has provided no evidence or authority for the proposition that "minorities"  constitute a cognizable group for Batson purposes. 

Read Gray v. Brady, No. 08-2548

Appellate Information

Appeal from the United States District Court for the District of Massachusetts

Decided January 25, 2010

Judges

Before:  Seyla and Boudin, Circuit Judges, and Laplante, District Judge

Opinion by  District Judge Laplante

Counsel

For Appellant:  David H. Mirsky

For Appellee:     Amy L. Karangekis, Assistant Attorney General, Commonwealth of Massachusetts, Martha Coakley, Attorney General,

Butynski v. Springfield Terminal Ry. Co., No. 09-1164

In plaintiff's personal injury action under the Federal Employers' Liability Act (FELA), denial of plaintiff's motion for judgment as a matter of law is affirmed as there was sufficient evidence of contributory negligence to support the jury's substantial reduction in damages awarded to the plaintiff.  

Read Butynski v. Springfield Terminal Ry. Co., No. 09-1164

Appellate Information

Appeal from the United States District Court for the District of Massachusetts

Decided January 22, 2010

Judges

Before:  Lynch, Chief Judge, Stahl and  Seyla, Circuit Judges

Opinion by  Seyla, Circuit Judge

Counsel

For Appellant:  Thomas Lesser, Lesser, Newman & Nasser

For Appellee:     Karen M. Thursby, Herlihy, Thursby & Herlihy, LLP

US v. Merlino, No. 02-1712

In a prosecution of a defendant for violating the Hobbs Act and for carrying firearms in relation to a crime of violence after the FBI foiled a planned robbery of the Loomis Fargo armored car facility, district court's judgment is affirmed in part, reversed in part, and remanded where: 1) district court's determination that defendant made the decision not to testify was not clearly erroneous; 2) given the significant downward adjustments, coupled with its refusal to depart further despite its authority to do so, defendant failed to demonstrate a reasonable probability that the district court would give him a lesser sentence; 3) district court's grant of a judgment of acquittal for carrying an explosive grenade is reversed as co-defendants' testimony was sufficient to establish that it was reasonably foreseeable to defendant that one of his co-conspirators would be carrying a hand grenade; and 4) district court abused its discretion in granting defendant's motion for a new trial on the explosive grenade conviction.       

Read US v. Merlino, No. 02-1712

Appellate Information

Appeal from the United States District Court for the District of Massachusetts

Decided January 15, 2010

Judges

Before:  Lipez, Hansen, and Howard,  Circuit Judges

Opinion:  Hansen, Circuit Judge

Counsel

For Appellant:   Judith H. Mizner

For Appellee:     John-Alex Romano, Michael J. Sullivan, United States Attorney

US v. Carta, No. 09-1949

In federal government's attempt to commit a defendant under the Adam Walsh Child Protection and Safety Act, district court's holding that the government failed to make the necessary showing is affirmed in part, reversed in part and remanded where: 1) district court's determination that the statute is not facially unconstitutional is affirmed; and 2) the district court erred in holding that the government failed to establish that defendant met the mental condition element.       

Read US v. Carta, No. 09-1949

Appellate Information

Appeal from the United States District Court for the District of Massachusetts

Decided January 15, 2010

Judges

Before:  Boudin and Seyla,  Circuit Judges, and Laplante, District Judge

Opinion:  Boudin, Circuit Judge

Counsel

For Appellant: Abby Wright and Samantha Chaifetz, Appellate Staff, Civil Division, Department of Justice, Tony West, Assistant Attorney General, Michael K. Loucks, Acting United States Attorney, and Mark B. Stern, Appellate Staff, Civil Division, Department of Justice

For Appellee:    Judith H. Mizner, Assistant Federal Public Defender, Federal Defender Office

Bukuras v. Mueller Group, LLC, No. 08-2160

In a contract dispute between defendant-employer and its former general counsel over the interpretation of the severance and general release provisions of an employment agreement, district court's judgment is affirmed where: 1) district court correctly concluded that the defendant did not breach the terms of the agreement when it failed to include plaintiff's $1 million transaction bonus in the calculation of his severance payment; and 2) district court did not err in holding that defendant could not recover its fees and costs associated with defending against plaintiff's claims as damages for alleged violation of the release plaintiff signed.  

Read Bukuras v. Mueller Group, LLC, No. 08-2160

Appellate Information

Appeal from the United States District Court for the District of Massachusetts

Decided January 20, 2010

Judges

Before:  Lynch, Chief Judge, Torruella, and Ripple, Circuit Judges

Opinion:  Torruella, Circuit Judge

Counsel

For Appellant: Jeremiah P. Sullivan, Jr., Sullivan and McDermott

For Appellee:  Christopher Cole, Karyl R. Martin and Sheehan Phinney Bass + Green, P.A.

Lessard v. Wilton-Lyndeborough Coop. Sch. Dist., No. 08-2244

District court's judgment upholding a school district's proposed 2005-2006 individualized education program (IEP) addressing plaintiffs' daughter's special needs is affirmed as the plaintiffs' daughter was afforded a free appropriate public education pursuant to the Individuals with Disabilities Education Act (IDEA) in the least restrictive environment.     

Read Lessard v. Wilton-Lyndeborough Coop. Sch. Dist., No. 08-2244

Appellate Information

Appeal from the United States District Court for the District of New Hampshire

Decided January 20, 2010

Judges

Before:  Lynch, Chief Judge, Boudin, Circuit Judge, and Saylor, District Judge

Opinion:  Per Curiam

Counsel

For Appellant: Richard L. O'Meara, Nicole L. Bradick and Murray, Plumb & Murray

For Appellee:    Eric R. Herlan, Peter C. Felmly and Drummond Woodsum & MacMahon

Clements v. Clarke, No. 09-1629

In habeas proceedings of a defendant convicted of second-degree murder and sentenced to life imprisonment, district court's conclusion that the state trial judge had impermissibly (though unintentionally) coerced a guilty verdict as a result of a series of voir dire examinations of individual jurors is reversed as the AEDPA's deferential standard of review controls in this case, and the district court employed an insufficiently deferential standard of review.     

Read Clements v. Clarke, No. 09-1629

Appellate Information

Appeal from the United States District Court for the District of Massachusetts

Decided January 20, 2010

Judges

Before:  Torruella, Seyla and Howard, Circuit Judges

Opinion by  Torruella, Circuit Judge

Counsel

For Appellant: Randall B. Ravitz, Assistant Attorney General, Criminal Bureau, Martha Coakley, Attorney General

For Appellee:    Rosemary Curran Scapicchio

Voss v. Rolland, No. 08-1874

In a challenge by a small number of plaintiff class members to the 2008 amended settlement, arising from a 1998 class action suit brought by developmentally disabled nursing home residents on behalf of over 1000 class members alleging that Massachusetts did not provide appropriate treatments in appropriate settings to them as federal law required, district court's denial of motion to decertify is affirmed as, the district court did not abuse its discretion in finding the settlement was fair, reasonable, and adequate as the Commonwealth has made many commitments about ensuring the fairness of the placement process going forward.   

Read Voss v. Rolland, No. 08-1874

Appellate Information

Appeal from the United States District Court for the District of Massachusetts

Decided January 15, 2010

Judges

Before:  Lynch, Chief Judge, and Stahl and Seyla, Circuit Judges

Opinion by  Lynch, Chief Judge

Counsel

For Appellant: Stephen M. Sheehy, Anthony S. Fiotto, Jr.,   Michelle R. Gonnam, Christiaan H. Highsmith, and Goodwin Proctor, LLP

For Appellee:    Steven J. Schwartz, Cathy E. Costanzo, Center for Public Representation, Jeffrey S. Follett, Catherine H. Wicker, Foley Hoag LLP, Frank J. Laski, Mental Health Legal Advisors Committee, Matthew Engel, and Disability Law Center;   Kenneth W. Salinger, Assistant Attorney General, with whom Martha Coakley, Attorney General

Richards v. Hewlett-Packard Corp., No. 08-2538

In plaintiff's ERISA action, district court's summary judgment upholding the termination of plaintiff's long-term disability benefits by Prudential Insurance Co. of America is affirmed as, the dispute in this case is not whether plaintiff is afflicted with fibromyalgia or chronic fatigue immune dysfunction, but that he has not met his burden of showing that these conditions rendered him unable to perform any job for which he is qualified.   

Read Richards v. Hewlett-Packard Corp., No. 08-2538

Appellate Information

Appeal from the United States District Court for the District of Massachusetts

Decided January 14, 2010

Judges

Before:  Lipez, Stahl and Howard, Circuit Judges

Opinion by  Howard, Circuit Judge

Counsel

For Appellant:  Bernard A. Kansky, Kansky & Associates

For Appellee:      Edward P. O'Leary, Fitzhugh & Mariani LLP

Cusson v. Liberty Life Assurance Co. of Boston, No. 08-2381

In plaintiff's ERISA action against defendants for terminating her disability benefits, summary judgment in favor of defendants is affirmed where: 1) defendant's decision was not improperly influenced by its structural conflict of interest; 2) defendant's ultimate conclusion was not an abuse of discretion as it was supported by the totality of the evidence; and 3) defendant's counterclaim is an equitable claim and is allowed under 29 U.S.C. section 1132(a)(3).     

Read Cusson v. Liberty Life Assurance Co. of Boston, No. 08-2381

Appellate Information

Appeal from the United States District Court for the District of Massachusetts

Decided January 14, 2010

Judges

Before:  Torruella, Seyla and Howard, Circuit Judges

Opinion by  Torruella, Circuit Judge

Counsel

For Appellant:  Mala M. Rafik, Alyssa A. Yenikomshian, S. Stephen Rosenfeld, and Rosenfeld & Rafik, P.C.

For Appellee:     Andrew C. Pickett, Matthew D. Freeman and Jackson Lewis LLP

Family Winemakers of Ca. v. Jenkins, No. 09-1169

In an action by the plaintiffs, a group of California winemakers and Massachusetts residents, challenging Mass. Gen. Laws ch. 138 which establishes differential methods by which wineries distribute wines in Massachusetts, district court's grant of injunctive relief is affirmed where: 1) section 19F violates the Commerce Clause because the effect of its particular gallonage cap is to change the competitive balance between in-state and out-of-state wineries in a way that benefits Massachusetts's wineries and significantly burdens out-of-state competitors; 2) the statutory context, legislative history, and other factors also yield the unavoidable conclusion that this discrimination was purposeful; and 3) the Twenty-first Amendment cannot save section 19F from invalidation under the Commerce Clause. 

Read Family Winemakers of Ca. v. Jenkins, No. 09-1169

Appellate Information

Appeal from the United States District Court for the District of Massachusetts

Decided January 14, 2010

Judges

Before: Lynch, Chief Judge, Stahl, Circuit Judge, and DiClerico, District Judge

Opinion by  Lynch, Chief Judge

Counsel

For Appellant:  David Hadas, Assistant Attorney General, Martha Coakley, Attorney General of the State of Massachusetts, and Thomas A. Barnico, Assistant Attorney General

For Appellee:      Tracy K. Genesen, Kenneth W. Starr, Micah C.E. Osgood, Gerald J. Caruso, Susan E. Engel, and Elizabeth M. Locke

US v. Gonzalez-Melendez, No. 08-1497

District court's sentence and conviction of defendant for aiding and abetting a carjacking is affirmed in part, reversed in part and remanded where: 1) defendant's conviction is affirmed as, although the district court allegedly committed several errors with respect to jury selection, its handling of evidentiary objections, and its handling of a jury note, these alleged errors were all relatively benign; but 2) because defendant was not afforded his right of allocution, his sentence is vacated and remanded.  

Read US v. Gonzalez-Melendez, No. 08-1497

Appellate Information

Appeal from the United States District Court for the District of Massachusetts

Decided January 13, 2010

Judges

Before:  Lipez, Hansen and Howard, Circuit Judges

Opinion by  Howard, Circuit Judge

Counsel

For Appellant:  Rafael F. Castro Lang

For Appellee:     German A. Rieckehoff, Assistant United States Attorney, Rosa E. Rodriguez Velez, United States Attorney and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division

US v. Volungus, No. 09-1596

District court's holding that Congress lacked constitutional authority to enact a provision under the Adam Walsh Child Protection and Safety Act, which provides for the civil commitment of a sexually dangerous person already in federal criminal custody in lieu of release upon service of full sentence, is reversed and remanded as the provision comes within the legitimate scope of congressional power conferred by the Necessary and Proper Clause of the federal Constitution.   

Read US v. Volungus, No. 09-1596

Appellate Information

Appeal from the United States District Court for the District of Massachusetts

Decided January 5, 2010

Judges

Before: Boudin and Seyla, Circuit Judges, and Laplante, District Judge

Opinion by  Seyla, Circuit Judge

Counsel

For Appellant:  Samantha L. Chaifetz, US Department of Justice, Civil Division

For Appellee:     Judith H. Mizner, Assistant Federal Public Defender

Hostar Marine Transp. Sys., Inc. v. I.R.S., No. 08-2535

In plaintiff's action against the United States Department of Internal Revenue Service seeking a refund of federal excise taxes plus interest, judgment against plaintiff is affirmed where: 1) dismissal of a claimed violation of due process was proper as plaintiff has not overcome what is the IRS's prerogative to tax it, but not its competitors; 2) summary judgment regarding plaintiff's claimed exemption from the tax excised pursuant to section 4051 of the I.R.C. is affirmed as the tax was properly assessed against plaintiff because its hydraulic boat trailers do not qualify as semitrailers or truck trailers, do not qualify for exception for Gross Vehicle Weight, and do not qualify for the off-highway transportation exception to the excise tax; and 3) grant of United States' motion for summary judgment on its counterclaim was proper. 

Read Hostar Marine Transp. Sys., Inc. v. I.R.S., No. 08-2535

Appellate Information

Appeal from the United States District Court for the District of Massachusetts

Decided January 5, 2010

Judges

Before: Lynch, Chief Judge, Torruella and Howard, Circuit Judges

Opinion by  Torruella, Circuit Judge

Counsel

For Appellant:  Timothy J. Burke,  Burke & Associates

For Appellee:     Bridget M. Rowan, Attorney, Tax Division, Department of Justice

Great Clips, Inc. v. Hair Cuttery of Greater Boston, LLC, No. 09-1376

In a trademark dispute between companies in the hair care industry involving a settlement agreement entered into nineteen years ago in which their predecessors stipulated to the withdrawal of the parties' respective claims and to not object further to the registration of the others' trademark, district court's grant of plaintiff's request for declaratory judgment is affirmed as, notwithstanding possible arguments on each side about potential confusion between their respective phrases, "Great Cuts" and "Great Clips", no evidence is offered that the parties sought only to allow each to register its mark but to reserve for future litigation the practical consequences of registration. 

Read Great Clips, Inc. v. Hair Cuttery of Greater Boston, LLC, No. 09-1376

Appellate Information

Appeal from the United States District Court for the District of Massachusetts

Decided January 5, 2010

Judges

Before: Boudin and Seyla, Circuit Judges, and Laplante, District Judge

Opinion by  Boudin, Circuit Judge

Counsel

For Appellant:  Jonathan D. Frieden (pro hac vice), Odin, Feldman & Pittleman, P.C.,    Bruce E. Falby and DLA Piper LLP

For Appellee:     Jan M. Conlin, Christopher K. Larus, Jonathan D. Mutch and Robins, Kaplan, Miller & Ciresi L.L.P.