In an action challenging a bank's categorization of underwriters as administrative employees exempt from the Fair Labor Standard Act's overtime pay requirements, summary judgment for defendant is reversed where plaintiff's work was not related either to setting "management policies" nor to "general business operations" such as human relations or advertising, 29 C.F.R. section 541.2, but rather concerned the "production" of loans -- the fundamental service provided by the bank.

Read Davis v. J.P. Morgan Chase & Co., No. 08-4092

Appellate Information

Argued: May 12, 2008

Decided: November 20, 2009

Judges

Opinion by Judge Lynch

Counsel

For Appellant:

J. Nelson Thomas, Dolin, Thomas & Solomon LLP, Rochester, NY

For Appellee:

Samuel Shaulson, Carrie A. Gonnell, Morgan, Lewis & Bockius LLP, New York, NY

In a consolidated appeal from three district court orders in actions by international airline companies challenging the INS's imposition of fines against the airlines for bringing undocumented immigrant and non-immigrant aliens into the United States in violation of 8 U.S.C. section 1323, the court of appeals rules as follows.  One order is affirmed in part where the INS did not act arbitrarily when it employed its parole power rather than its visa waiver authority to admit aliens into the U.S.  However, the order is reversed in part where a Board of Immigration Appeals rule, which exempted airlines from liability for bringing an undocumented alien to the U.S. when the alien received a post-arrival visa waiver, was consistent with the Penalty Statute. Another order is reversed where the INS's Rule 60 motion was procedurally defective because the circumstances were not sufficiently extraordinary to merit such relief.  In another matter, summary judgment for the INS is reversed where: 1) the INS's 1996 amendment of its tourist visa waiver regulation was invalid because it was promulgated in violation of the joint action requirement; and 2) the State Department's 1999 version of the tourist visa waiver regulation was invalid because it was promulgated in violation of the joint action requirement and without notice-and-comment.

Read United Airlines, Inc. v. Brien, No. 04-6018

Appellate Information

Argued: May 12, 2008

Decided: November 20, 2009

Judges

Opinion by Judge Hall

Counsel

For Appellants:

Christina Hagan, Jonathan A. Fuchs, Hagan, Coury & Associates, Brooklyn, NY

For Appellee:

Scott Dunn, Roslynn R. Mauskopf, F. Franklin Amanat, Assistant United States Attorneys, Brooklyn, NY

In appeals from an attorney's fees award in Muslim inmates' civil rights suit arising from defendants' refusal to provide them Halal meat, the fees award is affirmed where: 1) plaintiffs were prevailing parties, as they achieved a material alteration in the legal relationship between the parties, and the so-ordered settlement bore judicial imprimatur; and 2) the Prison Litigation Reform Act's fee cap applied even though some plaintiffs were released from prison after the filing of the suit but before the successful resolution of the litigation.

Read Perez v. Westchester Cty. Dep't of Corr., No. 08-4245

Appellate Information

Argued: July 10, 2009

Decided: November 19, 2009

Judges

Opinion by Judge Calabresi

Counsel

For Appellants:

Mary Lynn Nicolas and Martin G. Gleeson, Office of the Westchester County Attorney, White Plains, NY

For Appellees:

Richard Cohen, Donia F. Sawwan, Samantha H. Evans, Kathleen M. Aiello, Matthew Bettinger,  Fox Rothschild LLP, New York, NY

In the EEOC's appeal from a denial of its petition to enforce an administrative subpoena issued to UPS seeking information about how religious exemptions to UPS's Uniform and Personal Appearance Guidelines were handled nationwide, the order is reversed where the district court, in finding that national information was not relevant to the charges being investigated by the EEOC, applied too restrictive a standard of relevance.

Read EEOC v. United Parcel Serv., Inc., No. 08-5348

Appellate Information

In a First Amendment challenge to a New York City regulation banning new parades on Fifth Avenue, summary judgment for defendant is affirmed where 1) the rule did not seek to regulate messages or distinguish between different types of speech; and 2) plaintiff lacked standing to challenge the provision of the rule establishing punishment for violations because the "chill" on those that might spontaneously join plaintiff's marches was purely conjectural.

Read International Action Ctr. v. New York, No. 07-5739

Appellate Information

Argued: March 6, 2009

Decided: November 17, 2009

Judges

Opinion by Judge Chin

Counsel

For Appellant:

Jeffrey E. Fogel, Gideon Orion Oliver and Palyn Hung, Charlottesville, VA

For Appellee:

Scott Shorr, Ronald E. Sternberg, Office of the Corporation Counsel, New York, NY

Defendants' convictions for violating government restrictions on communications and other contacts with Sheikh Omar Ahmad Ali Abdel Rahman, a high-security federal prisoner, are affirmed in part where: 1) defendants concealed their efforts to obtain statements from Rahman to publicize on his behalf; 2) Rahman's attorney agreed to the restrictions and thus could not collaterally attack their constitutionality; and 3) a reasonable jury could have found that defendants participated in a conspiracy to murder persons abroad.  However, the sentence of one defendant, who was Rahman's attorney, is vacated where the district court needed to 1) reconsider the extent to which her status as a lawyer affected the appropriate sentence; and 2) determine whether defendant's conduct was perjurious and, if so, determine its effect on her sentence.

Read US v. Stewart, No. 06-5015

Appellate Information

Argued: January 29, 2008

Decided: November 17, 2009

Judges

Opinion by Judge Sack

Concurrence by Judge Calabresi

Dissent by Judge Walker

Counsel

For Appellants:

Joshua L. Dratel, Meredith S. Heller, Erik B. Levin, David B. Rankin, Law Offices of Joshua L. Dratel, P.C., New York, NY

For Appellee:

Anthony S. Barkow, Andrew S. Dember, Michael D. Maimin, Diane Gujarati, Katherine Polk Failla and Celeste L. Koeleveld, Assistant United States Attorneys, New York, NY

In an appeal from the district court's order vacating the attachment of an electronic funds transfer (EFT), the order is affirmed and the case is remanded for an order to show cause why the action should not be dismissed for lack of personal jurisdiction where: 1) the rule announced recently in Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., __ F.3d __, No.08-3477, 2009 WL 3319675 (2d Cir. Oct. 16, 2009), applies retroactively; and 2) a party's failure to assert an argument prior to the announcement of a decision which might support it does not constitute waiver.

Read Hawknet, Ltd. v. Overseas Shipping Agencies, No. 09-2128

Appellate Information

Submitted: June 16, 2009

Decided: November 13, 2009

Judges

Opinion by Judge Cabranes

Counsel

For Appellant:

Keith W. Heard, Burke & Parsons, New York, NY

For Appellee:

Robert K. Gross, Alan Van Praag and Edward W. Floyd, Eaton & Van Winkle LLP, New York, NY

In an appeal from the district court's denial of defendant's 28 U.S.C. section 2255 motion to vacate his conviction and sentence due to ineffective assistance of counsel, the order is affirmed where defendant failed to produce or identify evidence of actual prejudice.

Read Puglisi v. US, No. 04-4834

Appellate Information

Argued: January 29, 2008

Decided: November 17, 2009

Judges

Opinion by Judge Winter

Counsel

For Appellant:

Cheryl J. Sturm, Chadds Ford, PA

For Appellee:

Jo Ann M. Navickas, Peter A. Norling, Assistant United States Attorneys, Brooklyn, NY

In a civil rights action alleging that the exculpatory result of post-trial DNA testing was not timely disclosed to plaintiff, denial of defendant-prosecutors' motion for summary judgment based on absolute or qualified immunity is reversed where, because the testing was undertaken in connection with post-trial proceedings and was therefore integral to the advocacy function, the prosecutors enjoyed absolute immunity under Imbler v. Pachtman, 424 U.S. 409 (1976).

Read Warney v. Monroe Cty., No. 08-0947

Appellate Information

Argued: June 1, 2009

Decided: November 13, 2009

Judges

Opinion by Judge Jacobs

Counsel

For Appellants:

Michael E. Davis, Second Deputy County Attorney, Rochester, NY

For Appellee:

Deborah L. Cornwall, Peter J. Neufeld and Sarah Crowley, Cochran Neufeld & Scheck, LLP, New York, NY

In an action seeking unpaid overtime under the Fair Labor Standards Act, summary judgment for plaintiff is affirmed where: 1) plaintiff, a Product Design Specialist, was outside the "professional exemption" to the FLSA's overtime requirements and 2) defendant's violation of the FLSA was willful.

Read Young v. Cooper Cameron Corp., No. 08-5847

Appellate Information

Argued: September 9, 2009

Decided: November 12, 2009

Judges

Opinion by Judge Jacobs

Counsel

For Appellant:

Jennifer B. Rubin, John M. Delehanty and Andrew Nathanson, Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., New York, NY

For Appellee:

Michael J.D. Sweeney, Getman & Sweeney PLLC, New Paltz, NY