U.S. Second Circuit - FindLaw

U.S. Second Circuit - The FindLaw 2nd Circuit Court of Appeals Opinion Summaries Blog


Dentists have a new reason to smile after the Second Circuit upheld Connecticut regulations requiring that certain teeth-whitening procedures be performed only by licensed dentists. The procedure in question involves shining a low-powered LED light into a customer's mouth for 20 minutes, so it's not exactly major surgery -- but it's risky enough to justify the restriction and survive rational basis review, the Court ruled.

The court's highly deferential ruling means that it will be a bit harder to get whiter teeth on the cheap in Connecticut. It also contrasts with a recent Supreme Court ruling that struck down similar restrictions in North Carolina.

Unpaid internships are some of the most miserable, abusive, and exploitative forms of labor around -- and you can go ahead and take advantage of them again, so long as you meet the new standard announced this month by the Second Circuit.

The Second Circuit's ruling reverses a 2013 district court decision that unpaid interns could file a class action for back wages and overtime. That decision caused many companies to curtail or eliminate their unpaid internship programs. Now, however, the court has proposed seven non-exclusive considerations used to determine when an intern might be entitled to pay, potentially opening the door for a return to widespread unpaid internships.

Contributors to a creative work, whose contributions are inseparable from that work, cannot copyright their contribution alone, the Second Circuit ruled on Monday. The decision came from a dispute between an independent film's producer and its director, after the director attempted to copyright the raw footage of the film and prevent the producer from using it.

That film director cannot copyright his contribution to the collaborative work, the court ruled. The case is the first time the Second Circuit has taken up the issue and has large implications for media, film, and the creative arts.

Before there was Enron, there was Cendant. Cendant, a travel and real estate company, cooked its books for 12 years, in one of the largest accounting frauds ever. When the fraud was discovered, Cendant's stock crashed, with investors losing $19 billion in a single day -- the largest tumble on record, until Enron came around.

It took three trials and over eight years for Walter Forbes, former Cendant chairman, to be convicted of securities fraud for his role in the fraud. He was sentenced to 12 years and ordered to pay $3.275 billion in restitution -- again, the largest restitution award ever, until Bernie Maddof came around. 

Forbes won't be getting a fourth trial, as the Second Circuit on Tuesday rejected his request to be retried because of newly discovered evidence. Not only does the case keep Forbes locked up, but it adds a new layer to the Second Circuit's treatment of newly discovered evidence. While known but physically unavailable evidence may be considered newly discovered, that which was withheld because of the Fifth Amendment will not.

Muslim and Arab men who were wrongfully detained can sue former attorney general John Ashcroft and other Bush-era officials for violating their constitutional rights, the Second Circuit ruled yesterday. The class action lawsuit, filed by former 9/11 detainees, alleges that Ashcroft and others established a discriminatory policy of arresting and detaining Muslim and Arab men following the attacks and keeping them in abusive conditions.

In a lengthy ruling, Second Circuit said that under the alleged facts, based largely on a government investigation, the Department of Justice and FBI put in place policies which violated the detainees civil rights and took no steps to stem the abuse when they knew detainees were not terrorism suspects. The development means that the Bivens suit, which has dragged on for over 13 years and which targets officials in their individual capacity, can go forward.

Fernando Bermudez spent 18 years in prison for a murder he did not commit. After a prosecution which was suspect from the beginning -- one which included suggestive photo arrays, police coercion, and a failure to investigate other suspects -- it took Bermudez almost two decades to get his conviction overturned, despite every witness recanting their testimony.

Bermudez will now be able to go forward with a civil suit for damages stemming from his wrongful imprisonment, after the Second Circuit ruled on Monday that there were triable questions of fact as to whether the faulty investigation violated Bermudez's constitutional rights.

When Homeland Security agents suspected that Yuri Bershchansky was electronically transmitting child porn, they obtained a search warrant, searched his home, seized his computer and got him to confess. Unfortunately, they got the address wrong. The warrant was for Apartment 2 in Bershchansky's building, while Yuri was in Apartment 1.

Searching the wrong address, even though it housed the right man, meant that agents had exceeded the scope of the warrant and all the evidence, from computer to confession, must be suppressed, the Second Circuit ruled last week.

The defendant accused and convicted of mail fraud and tax evasion did not waive his right to an impartial jury when his attorneys suspected a biased and dishonest juror but failed to raise contemporaneous objections, the Second Circuit ruled Monday.

David Parse, a former Deutsche Bank broker who was prosecuted because of his involvement in an allegedly illegal tax shelter scheme, saw his trial hijacked by a rogue juror.

The Second Circuit reversed a conviction for conspiracy to distribute crack cocaine on Wednesday. James Dickerson was convicted of conspiring with a New Haven, Connecticut, drug ring from which he bought and resold drugs. The jury viewed him as part of the drug ring's conspiracy based almost solely on the volume and frequency of drug purchases and resales.

That is too tenuous of a connection to support a conspiracy conviction, the Second Circuit reasoned. Prosecutors must show more than just large, regular purchases and resales in order to show that Dickerson was part conspiring as part of the ring, rather than simply being one of its customers.

The Second Circuit heard arguments last Friday on whether contract lawyers are entitled to overtime pay. "Legal practice" is exempt from the Fair Labor Standards Act's overtime rules. However, one lawyer argued that his document review job was so rote and tedious it does not amount to the practice of law, meaning he's entitled to overtime.

The case presents an odd situation where a lawyer stands to make more money -- perhaps substantially more -- should his labor be considered too simple to be the practice of law.