U.S. First Circuit: September 2011 Archives
U.S. First Circuit - The FindLaw 1st Circuit Court of Appeals News and Information Blog

September 2011 Archives

Free Press Files Challenge to FCC Net Neutrality Rules

Free Press, a media reform advocacy group, filed a petition for review in the First Circuit Court of Appeals this week, challenging new Federal Communications Commission (FCC) net neutrality rules.

Washington insiders were expecting Verizon, which opposes net neutrality, to challenge the rules, reports AdWeek. The Free Press challenge is somewhat ironic, because Free Press actually supports net neutrality.

Judge Denies Bail for Disgraced Politician Sal DiMasi

Fallen Massachusetts House Speaker Sal DiMasi is heading to jail barring intervention from the First Circuit Court of Appeals.

DiMasi, who was convicted of conspiracy, extortion and honest services fraud, is scheduled to begin an 8-year sentence on Nov. 16. Prosecutors said DiMasi used his position as speaker to direct $17.5 million in state contracts to software firm Cognos in exchange for kickbacks, reports the AP.

Despite his ingenious defense that kickbacks are the "mother's milk" of politics, U.S. District Judge Mark Wolf denied DiMasi's request for release on bail while he appeals his sentence to the First Circuit Court of Appeals.

Top 3 Tips for Meet and Confer Success

If electronic discovery is the vehicle through which lawyers conduct business, the meet and confer is the pre-purchase inspection.

Federal Rule of Civil Procedure 26(f), enacted in 2007, requires that parties to litigation "meet and confer" to negotiate the terms of electronic discovery at least 21 days before a scheduling conference is to be held, or a scheduling order is due.

Play it Again: Court Upholds $675K Judgment Against Joel Tenenbaum

Joel Tenenbaum should resume penny-pinching.

The First Circuit Court of Appeals reinstated a $675,000 judgment against Tenenbaum in an illegal downloading case last week, after District Court Judge Nancy Gertner reduced the sentence to $67,500.

Sony sued Tenenbaum in 2007 for willful infringement of copyright laws after Tenenbaum downloaded and distributed copyrighted music. Sony sought statutory, rather than actual damages. The jury found that Tenenbaum had willfully infringed each of Sony's 30 copyrighted works at issue in the case, and returned a damage award, within the statutory range, of $22,500 per infringement, totaling $675,000.

Judicial Conference Adopts Bankruptcy Courtroom Sharing Policy

Bankruptcy judges will soon feel America’s proverbial belt-tightening in the courthouse.

This week, the Judicial Conference of the United States adopted a courtroom sharing policy for bankruptcy judges in new courthouse and courtroom construction. In court facilities with three or more bankruptcy judges, one courtroom will be provided for every two bankruptcy judges. In those facilities with an odd number of bankruptcy judges, the number of courtrooms allotted will remain at the next lower whole number.

While the courtroom sharing policy will reduce the number of courtrooms constructed, government reports indicate that reduced construction will not impair access to bankruptcy courts.

Section 33E Murder Appeals Must Have New and Substantial Evidence

John Gomes Mendes was convicted in a Massachusetts court of the first degree murder of his wife, on a record that the First Circuit Court of Appeals described as "suggesting a motive to gain control of her small inheritance to pay for prostitutes and drugs." He sounds like a stand-up guy, right?

Mendes walked free, despite incriminating circumstantial evidence, for 13 years following the murder. He was indicted and prosecuted only after police learned of two witnesses to whom Mendes had admitted the killing.

The First Circuit Court of Appeals last week affirmed a district court’s denial of habeas corpus in a murder case that’s been bouncing like a pinball through the Massachusetts courts since 1985.

Penny Anderson was murdered at her Springfield, Mass. apartment in 1984. In 1985, a Superior Court jury convicted the petitioner, Edward Wright, of the crime.

After exhausting his state challenges, Wright filed a habeas corpus petition in federal court. The district court eventually granted Wright an evidentiary hearing to introduce new evidence, but ultimately denied habeas relief.

Termination Complete: Fox News, Bill O'Reilly, and Barry Nolan

Former Comcast regional television personality Barry Nolan lost his speech-motivated retaliation appeal against Comcast this week in the First Circuit Court of Appeals. Nolan claimed that he was fired for publicly criticizing Fox News’ Bill O’Reilly. The Court found that Nolan’s Comcast contract permitted his dismissal with or without cause and affirmed the district court’s dismissal of the case.

Is Barry Nolan a patriot or pinhead? Let’s turn to the talking points to examine whether Nolan’s firing was tainted with an O’Reilly factor.

Nolan was employed by Comcast as the executive producer and host of the television program “Backstage with Barry Nolan.” Two paragraphs of Nolan’s Comcast contract addressed the possibility of Nolan’s premature discharge, and afforded Comcast sole and absolute discretion to dismiss Nolan.