U.S. Second Circuit: October 2009 Archives
U.S. Second Circuit - The FindLaw 2nd Circuit Court of Appeals Opinion Summaries Blog

October 2009 Archives

US v. Byors, No. 08-4811

Defendant's mail fraud sentence is affirmed where: 1) a defendant is not entitled to an offset against a loss based on business expenses that confer no benefit upon the victims; and 2) Application Note 2(C) to section 2S1.1 of the Sentencing Guidelines does not preclude an enhancement for obstruction of justice pursuant to section 3C1.1 of the Guidelines where a defendant's obstruction relates to an offense underlying a money laundering offense, but not to the money laundering offense itself.

Read US v. Byors, No. 08-4811

Appellate Information

Argued: October 9, 2009

Decided: October 29, 2009

Judges

Opinion by Judge Cabranes

Counsel

For Appellant:

Bradley S. Stetler, Stetler, Allen & Kampmann, Burlington, VT

For Appellee:

Gregory L. Waples, Assistant United States Attorney, District of Vermont, Burlington, VT

Gross v. Rell, No. 08-2626

In a 42 U.S.C. section 1983 action alleging that the state unlawfully established an involuntary conservatorship over plaintiff, dismissal of the complaint is affirmed in part where the judge responsible for the conservatorship did not act in the clear absence of subject matter jurisdiction, and he was not aware of the defects in personal jurisdiction, making judicial immunity appropriate.  However, as to the issue of quasi-judicial immunity under Connecticut law, the court certified the following question to the Connecticut Supreme Court:  What is the role of conservators, court-appointed attorneys for conservatees, and nursing homes in the Connecticut probate court system, in light of the six factors for determining quasi-judicial immunity outlined in Cleavinger v. Saxner, 474 U.S. 193, 201-02 (1985)?

Read Gross v. Rell, No. 08-2626

Appellate Information

Argued: May 20, 2009

Question Certified: October 27, 2009

Judges

Opinion by Judge Straub

Counsel

For Appellant:

Sall R. Zanger, Connecticut Legal Rights Project, Inc., Middletown, CT

For Appellees:

Gregory T. D'Auria, Jane R. Rosenberg, Clare Kindall, Associate Attorneys General, Hartford, CT

US v. Williams, No. 08-5151

Defendant's firearm possession conviction is vacated where the district court erred by admitting evidence that defendant had been in an apartment from which weapons and drugs were later recovered.

Read US v. Williams, No. 08-5151

Appellate Information

Argued: September 25, 2009

Decided: October 27, 2009

Judges

Opinion by Judge McLaughlin

Counsel

For Appellant:

Donald Yanella, New York, NY

For Appellee:

Justin D. Lerer, Jo Ann M. Navickas, Assistant United States Attorneys, Brooklyn, NY

Contreras-Salinas v. Holder, No. 08-4611

In a petition for review of a BIA order removing petitioner from the U.S., the petition is denied where, because petitioner challenged a determination committed to the sole discretion of the Attorney General -- namely, the credibility and weight accorded to certain evidence -- the court of appeals lacked jurisdiction to review her claims.

Read Contreras-Salinas v. Holder, No. 08-4611

Appellate Information

Argued: October 8, 2009

Decided: October 27, 2009

Judges

Per Curiam

Counsel

For Appellant:

Glenn T. Terk, Wethersfield, CT

For Appellee:

Russell J.E. Verby, Michael F. Hertz, Barry J. Pettinato, Office of Immigration Litigation, United States Department of Justice, Washington, DC

Aguas Lenders Recovery Grp. LLC v. Suez, S.A., No. 08-1589

In an action to recover on a defaulted loan, dismissal of the action on forum non conveniens grounds is reversed where a non-signatory to an agreement may be bound by a forum selection clause and forum non conveniens waiver contained in contracts entered into by an entity alleged to be a predecessor in interest.

Read Aguas Lenders Recovery Grp. LLC v. Suez, S.A., No. 08-1589

Appellate Information

Argued: April 15, 2009

Decided: October 23, 2009

Judges

Opinion by Judge Winter

Counsel

For Appellant:

Jennifer R. Scullion, Louis M. Solomon, Daniella M. Rudy, Proskauer Rose LLP, New York, NY

For Appellee:

John J. Kerr, Jr., Simpson Thatcher & Bartlett LLP, New York, NY

Leibowitz v. Cornell Univ., No. 07-4567

In a gender and age discrimination action by an employee of a university, summary judgment for defendants is affirmed in part where plaintiff failed to produce evidence of an express or implied contract to continue her employment.  However, the order is reversed in part where: 1) in the circumstances here, a non-renewal of an employment contract itself was an adverse employment action and the district court erred in requiring plaintiff to show the existence of an unofficial tenured position to satisfy the adverse action requirement; and 2) the circumstances surrounding the non-renewal of her contract gave rise to an inference of age or gender discrimination.

Read Leibowitz v. Cornell Univ., No. 07-4567

Appellate Information

Argued: February 27, 2009

Decided: October 23, 2009

Judges

Opinion by Judge Bianco

Counsel

For Appellant:

David M. Marek, Jeffrey L. Liddle, Liddle and Robinson, LLP, New York, NY

For Appellees:

Wendy E. Tarlow, Nelson E. Roth, Valerie Cross Dorn and Norma W. Schwab, Cornell University, Ithaca, NY

ProShipLine, Inc. v. Aspen Infrastructures, Ltd., No. 08-0838

In an appeal from the district court's order vacating a maritime attachment, the order is affirmed where both the party that attached the funds and the party that owned the funds were present in another jurisdiction.

Read ProShipLine, Inc. v. Aspen Infrastructures, Ltd., No. 08-0838

Appellate Information

Argued: March 12, 2009

Decided: October 22, 2009

Judges

Opinion by Judge Sack

Counsel

For Appellant:

John Sullivan, Andrew R. Brown, Hill Rivkins & Hayden LLP, New York, NY

For Appellees:

John Orzel, Vincent M. DeOrchis, DeOrchis & Partners, LLP, New York, NY

Green v. Mattingly, No. 08-4636

In an action claiming that defendants violated the U.S. Constitution and New York law when they successfully petitioned the family court of New York for an order temporarily removing plaintiff's child from her custody, dismissal of the action is vacated in part where: 1) the family court issued a superseding order returning plaintiff's child to her custody, and the family court proceedings were eventually dismissed, so plaintiff was not a "state-court loser" under the Rooker-Feldman doctrine; and 2) in addition, her claims did not "invite district court review and rejection" of a state court judgment.  However, the dismissal is affirmed in part where plaintiff failed to allege that the family court proceeding was terminated in her favor and thus did not state a malicious prosecution claim.

Read Green v. Mattingly, No. 08-4636

Appellate Information

Argued: October 7, 2009

Decided: October 21, 2009

Judges

Opinion by Judge Cabranes

Counsel

For Appellant:

Carolyn A. Kubitschek, Lansner & Kubitschek, New York, NY

For Appellees:

Tahirih M. Sadrieh, Edward F.X. Hart and Elizabeth A. Wells, New York, NY

US v. Bell, No. 08-5506

In the government's appeal from the district court's order granting a new trial in an attempted murder prosecution, the order is reversed where the district court erred in ordering a new trial because: 1) the district court's jury instructions on intentional conduct were legally correct and did not constitute plain error warranting a new trial; 2) the district court's use of a general verdict form was not plain error and thus not a basis for ordering a new trial; 3) the district court rested its decision to grant a new trial on clearly erroneous factual findings; and 4) the district court failed to evaluate the entire trial record in ruling on defendant's motion for a new trial.

Read US v. Bell, No. 08-5506

Appellate Information

Argued: October 7, 2009

Decided: October 20, 2009

Judges

Per Curiam

Counsel

For Appellant:

Tracy Lee Dayton, Michael J. Gustafson, Nora R. Dannehy, William J. Nardini, Assistant United States Attorneys, Office of the United States Attorney for the District of Connecticut, Hartford, CT

For Appellee:

John R. Gulash, Gulash & Riccio, Bridgeport, CT, for Appellee.

Schaghticoke Tribal Nation v. Kempthorne, No. 08-4735

In a petition under the Administrative Procedure Act challenging the Department of the Interior's determination not to acknowledge the "tribal existence" of a purported Indian tribal nation, summary judgment for defendants is affirmed where: 1) the evidence presented by the tribe was insufficient to raise a claim of "improper political influence" under the standard set forth in Town of Orangetown v. Ruckelshaus, 740 F.2d 185 (2d Cir. 1984); and 2) the Department's determination did not violate the Vacancies Reform Act.

Read Schaghticoke Tribal Nation v. Kempthorne, No. 08-4735

Appellate Information

Argued: October 8, 2009

Decided: October 19, 2009

Judges

Per Curiam

Counsel

For Appellant:

Richard Emanuel, David K. Jaffe, Brown Paindris & Scott, P.C., Branford, CT

For Appellees:

John B. Hughes, Assistant United States Attorney, District of Connecticut, Hartford, CT

Lonecke v. Citigroup Pension Plan, No. 08-0459

In an ERISA action claiming that defendant's benefit plan violated ERISA's minimum benefit accrual rules, partial summary judgment for plaintiffs is reversed where the plan complied with ERISA's minimum benefit accrual rules, and defendant did not violate ERISA's section 204(h) notice requirements.

Read Lonecke v. Citigroup Pension Plan, No. 08-0459

Appellate Information

Argued: March 20, 2009

Decided: October 19, 2009

Judges

Opinion by Judge Wesley

Counsel

For Appellants:

Myron D. Rumeld, Proskauer Rose LLP, New York, NY

Lewis R. Clayton, Paul, Weiss, Rifkind, Wharton & Garrison, LLP, New York, NY

For Appellees:

Edgar Pauk, Law Office of Edgar Pauk, Esq., Brooklyn, NY

Brad Nelson Friedman, Milberg LLP, New York, NY

US v. McCallum, No. 08-0322

Defendant's drug distribution convictions are affirmed where the district court abused its discretion in admitting as similar acts evidence two of his prior narcotics convictions, but the error was harmless.

Read US v. McCallum, No. 08-0322

Appellate Information

Argued: August 7, 2009

Decided: October 19, 2009

Judges

Opinion by Judge Parker

Counsel

For Appellant:

Joseph A. Vita, Law Office of Joseph A. Vita, Esq., Port Chester, NY

For Appellee:

Nola B. Heller, Assistant United States Attorney, New York, NY

AMW Materials Testing, Inc. v. Babylon, No. 08-1731

In an action under the Comprehensive Environmental Response, Compensation and Liability Act to recover hazardous material cleanup costs, judgment for defendants is affirmed where: 1) defendants were not "operators" of the facility at issue at the time the hazardous materials at issue were released; and 2) emergency response actions pursuant to 42 U.S.C. section 9607(d)(2) cannot constitute an affirmative defense to section 9607(a) liability.

Read AMW Materials Testing, Inc. v. Babylon, No. 08-1731

Appellate Information

Argued: August 7, 2009

Decided: October 19, 2009

Judges

Opinion by Judge Raggi

Counsel

For Appellants:

Joan M. Ferretti, Robert M. Lustberg, Lustberg & Ferretti, Glens Falls, NY

For Appellees:

Richard F. Ricci, Priya Rebecca Masilmani, Lowenstein Sandler PC, Roseland, NJ

In re Jaffe, No. 06-9009

The Committee on Attorney Admissions and Grievances' findings of fact and recommendation of public reprimand against an attorney are adopted where there was clear and convincing evidence that the attorney had engaged in conduct unbecoming a member of the bar. Additionally, the attorney is removed from the court's bar.

Read In re Jaffe, No. 06-9009

Appellate Information

Decided October 19, 2009

Judges

Per Curiam

Counsel

Linda F. Fedrizzi, New York, NY

Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., No. 08-3477

In defendant's appeal from the district court's order vacating portions of an order of maritime attachment and garnishment, the order is affirmed in part where electronic fund transfers (EFTs) being processed by an intermediary bank are not property subject to attachment under Rule B of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions.  However, the court of appeals remands the cause for further proceedings with respect to the remaining portions of the attachment order affecting EFTs of which defendant was the originator.

Read Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., No. 08-3477

Appellate Information

Argued: May 5, 2009

Decided: October 16, 2009

Judges

Opinion by Judge Cabranes

Counsel

For Appellant:

Jeremy J.O. Harwood, Blank Rome LLP, New York, NY

For Appellee:

Rahul Wanchoo, Glen Rock, NJ

In re: DDAVP Direct Purchaser Antitrust Litig., No. 06-5525

In an action alleging that defendant drug manufacturers conspired to maintain a monopoly in the market for desmopressin acetate tablets, dismissal of the complaint is reversed where: 1) plaintiffs' antitrust claim could stand on the citizen petition theory without raising questions of patent law; 2) plaintiffs had standing to raise Walker Process claims for patents that were already unenforceable due to inequitable conduct; and 3) plaintiffs sufficiently pled scienter on the part of defendants.

Read In re: DDAVP Direct Purchaser Antitrust Litig., No. 06-5525

Appellate Information

Argued: September 15, 2008

Decided: October 16, 2009

Judges

Opinion by Judge Walker

Counsel

For Appellants:

David F. Sorensen, Daniel Berger and Daniel C. Simons, Berger & Montague, P.C., Philadelphia, PA

For Appellees:

Douglas L. Wald, William J. Baer, Barbara H. Wootton, Arnold & Porter LLP, Washington, DC

Nordwind v. Rowland, No. 07-4862

In an action for legal malpractice, summary judgment for defendants is affirmed where plaintiffs failed to show actual injury because, under German law, they would have only been entitled to 50% of the subject inheritance regardless of any malpractice on the part of their counsel.

Read Nordwind v. Rowland, No. 07-4862

Appellate Information

Argued: May 14, 2009

Decided: October 16, 2009

Judges

Opinion by Judge Miner

Counsel

For Appellants:

Ellen R. Werther and Bruce J. Ressler, Ressler & Ressler, New York, NY

For Appellee:

Andrew N. Krinsky and Debra Bodian Bernstein, Tarter Krinsky & Drogin LLP, New York, NY

Seidemann v. Bowen, No. 08-3922

In a First Amendment action alleging that a professor's union impermissibly charged plaintiff a pro rata share of expenses unrelated to the union's collective bargaining duties, summary judgment for defendant is reversed where: 1) a public-sector union's political activities aimed at securing a new contract may be chargeable to nonmembers if those activities are pertinent to the union's role as a collective bargaining representative; 2) nonmembers may be required to subsidize lobbying efforts undertaken by a "parent" union of the local public-sector union if the lobbying is related to collective bargaining and may ultimately inure to the benefit of local union members; 3) the district court erred in upholding the union's charges to nonmembers for (a) political activity undertaken to secure a new contract, (b) lobbying by the local union's state affiliate, (c) costs incurred to send union delegates to the state affiliate's annual convention, and (d) the salaries of the union's employees; 4) the district court erred in dismissing plaintiff's challenge to the union's charges for media communications by its national affiliate; and 5) it erred in holding, sua sponte, that plaintiff will be required to arbitrate future claims against the union before filing suit.

Read Seidemann v. Bowen, No. 08-3922

Appellate Information

Argued: November 17, 2008

Decided: October 15, 2009

Judges

Opinion by Judge Cabranes

Counsel

For Appellant:

Phineas E. Leahey and Todd R. Geremia, Jones Day, New York, NY

For Appellee:

James R. Sandner and Christopher M. Callagy, New York, NY

Selevan v. N.Y. Thruway Auth., No. 07-0037

In a dormant Commerce Clause challenge to a toll policy of the New York Thruway Authority (NYTA) that afforded a discount to residents of a particular city in New York and denied the same benefit to all other New Yorkers and to all nonresidents of New York, dismissal of the complaint is affirmed in part where the Privileges and Immunities Clause of Article IV of the Constitution does not apply to foreign citizens.  However, the order is reversed in part where: 1) the NYTA did not act as a "market participant" in setting the discriminatory toll rates; 2) plaintiffs did not allege that NYTA's toll policy specifically discriminated against interstate commerce, but the district court failed to resolve whether the policy inadvertently burdened interstate commerce; and 3) the district court erred in applying rational basis review to the policy under the Equal Protection Clause.

Read Selevan v. N.Y. Thruway Auth., No. 07-0037

Appellate Information

Argued: September 8, 2008

Decided: October 15, 2009

Judges

Opinion by Judge Cabranes

Counsel

For Appellants:

Seth R. Lesser and Andrew P. Bell, Locks Law Firm PLLC, New York, NY

For Appellee:

Benjamin Gutman and Robert M. Goldfarb, Assistant Solicitor Generals, Office of the Attorney General of the State of New York, Albany, NY

Aurelius Capital Ptnrs., LP v. Argentina, No. 08-5621

In defendant Republic of Argentina's appeal from the district court's orders of attachment and execution entered in late 2008 over Argentine social security funds, the order is reversed where: 1) nonparty Argentine social security administration was clearly affected by the order and thus had standing to appeal; and 2) the funds were not subject to attachment because they were not being used for a commercial activity in the United States as of the effective date of the Argentine legislation transferring the funds to the control of the administration.

Read Aurelius Capital Ptnrs., LP v. Argentina, No. 08-5621

Appellate Information

Argued: May 11, 2009

Decided: October 15, 2009

Judges

Opinion by Judge Wallace

Counsel

For Appellant:

Jonathan I. Blackman, Carmine D. Boccuzzi, Christopher P. Moore, Rahul Mukhi, Benjamin J. A. Sauter, and Michael J. Byars, Cleary Gottlieb Steen & Hamilton LLP, New York, NY

For Appellees:

Barry R. Ostrager, Tyler B. Robinson and David Elbaum, Simpson, Thacher & Bartlett LLP, New York, NY

David Dunn, Hogan & Hartson LLP, New York, NY

US v. Thrower, No. 08-2016

Defendant's firearm possession conviction is affirmed where: 1) defendant's prior New York offense of larceny from the person met the first prong of the inquiry required under the residual clause of the Armed Career Criminal Act (ACCA); and 2) defendant's offense was roughly similar to an enumerated offense in the ACCA.

Read US v. Thrower, No. 08-2016

Appellate Information

Argued: September 11, 2009

Decided: October 14, 2009

Judges

Per Curiam

Counsel

For Appellant:

Norman Trabulus, New York, NY

For Appellee:

Amanda Hector and Emily Berger, Assistant United States Attorney Generals, New York, NY

Lin v. Holder, No. 07-5791

In a petition for review of a final order of the BIA affirming the decision of an Immigration Judge which denied petitioner's application for asylum, the petition is granted in part where petitioner's activity as a nurse in China did not amount to "assistance or participation" in persecution which would render her ineligible for asylum or withholding of removal under the Immigration and Nationality Act's "persecutor bar." However, the petition is denied in part where petitioner failed to sustain her burden of demonstrating that it was "more likely than not" that she would be tortured in China.

Read Lin v. Holder, No. 07-5791

Appellate Information

Argued: May 21, 2009

Decided: October 14, 2009

Judges

Opinion by Judge Jacobs

Counsel

For Petitioner:

Stuart Altman, Law Offices of Stuart Altman, New York, NY

For Respondent:

Stacy Stiffel Paddack, Anthony Norwood, Sherrie Waldrup, Office of Immigration Litigation, Department of Justice, Washington, DC

T.Y. v. N.Y. City Dep't of Educ., No. 08-3527

In an action for tuition reimbursement under the Individuals with Disabilities Education Improvement Act (IDEA), summary judgment for defendant department of education is affirmed where: 1) because the IDEA does not require that an Individualized Education Plan (IEP) name a specific school placement, plaintiff-child's IEP was not procedurally deficient; and 2) there was substantial evidence in the record that the IEP provided significant benefits to plaintiff in addressing his problematic behaviors.

Read T.Y. v. N.Y. City Dep't of Educ., No. 08-3527

Appellate Information

Argued: June 22, 2009

Decided: October 9, 2009

Judges

Opinion by Judge Parker

Counsel

Appellants:

Gary S. Masterson and Tracy Spencer Walsh, Mayerson & Associates, New York, NY

For Appellee:

Suzanne K. Colt and Pamela Seider Dolgow, Assistant Corporation Counsel, New York, NY

In re: Peaslee, No. 07-3962

In a debtor's appeal from a district court's order reversing the bankruptcy court's confirmation of the debtor's Chapter 13 plan, the district court's order is affirmed where the New York Court of Appeals held, in response to a certified question from the court of appeals, that negative equity on a trade-in vehicle is included in the purchase money security interest accompanying a new car's purchase and is therefore protected from cramdown by the Hanging Paragraph of Section 1325 of the Bankruptcy Code.

Read In re: Peaslee, No. 07-3962

Appellate Information

Argued: September 25, 2008

Decided: October 9, 2009

Judges

Per Curiam

Counsel

For Appellant:

George M. Reiber, Rochester, NY, pro se

For Appellees:

Barkley Clark and Katherine M. Sutcliffe Becker, Stinson Morrison Hecker, LLP, Washington, DC

Aczel v. Labonia, No. 08-2741

In a 42 U.S.C. section 1983 action alleging excessive force by police, judgment for defendant-officer is affirmed where, because the jury unanimously found that defendant was entitled to qualified immunity and there was no flaw in the finding that required the district court to reject it, the district court acted within its discretion in entering judgment for defendant and denying plaintiff's motion for a new trial.

Read Aczel v. Labonia, No. 08-2741

Appellate Information

Argued: May 27, 2009

Decided: October 9, 2009

Judges

Opinion by Judge Leval

Counsel

For Appellant:

Keith P. Sturges, Goldstein and Peck, P.C., Bridgeport, CT

For Appellees:

Thomas R. Gerarde, Howd & Ludorf, LLC, Hartford, CT

Orange Cty. Water Dist. v. Unocal Corp., No. 07-5724

In a petition for a writ of mandamus challenging the district court's order denying petitioner's motion to remand the action to state court, the petition is denied where: 1) the court of appeals' prior opinion did not preclude the district court's conclusion that petitioners failed to file a timely motion for remand, because the purportedly erroneous removal under 28 U.S.C. section 1452(a) did not implicate the district court's subject matter jurisdiction; and 2) any challenge to the district court's subject matter jurisdiction was best addressed on direct appeal, rather than by a writ of mandamus.

Read Orange Cty. Water Dist. v. Unocal Corp., No. 07-5724

Appellate Information

Submitted: April 14, 2009

Decided: October 1, 2009

Judges

Per Curiam

Counsel

For Petitioner:

Michael Axline, Tracey O'Reilly, Miller, Axline & Sawyer, Sacramento, CA

For Respondent:

Thomas Marcelle, Albany, NY

Arch Ins. Co. v. Precision Stone, Inc., No. 07-3950

In an action for payment on a labor and materials payment bond issued by defendants in connection with a construction project, judgment for plaintiff is affirmed in part where the district court did not err in finding that the action was timely under the terms of the bond. However, the judgment is reversed in part where the district court improperly set off from the damages award the contractor's full cost to complete that portion of the contracted work that had not been completed by plaintiff.

Read Arch Ins. Co. v. Precision Stone, Inc., No. 07-3950

Appellate Information

Argued: December 19, 2008

Decided: October 1, 2009

Judges

Opinion by Judge Sack

Counsel

For Appellant:

Patrick M. Reilly, DelBello Donnellan Weingarten Wise & Wiederkehr, LLP, White Plains, NY

For Appellee:

Peter Goetz and Susan M. PascaleGoetz Fitzpatrick LLP, New York, NY

US v. Shim, No. 08-1834

Defendant's conviction for conspiring to transport women in interstate and foreign commerce for the purpose of prostitution is reversed where the district court erred in failing to instruct the jury that defendant had to know that the women were transported in interstate commerce to be guilty of the offense.

Read US v. Shim, No. 08-1834

Appellate Information

Argued: May 12, 2009

Decided: October 8, 2009

Judges

Per Curiam

Counsel

For Appellants:

Susan C. Wolfe, Hoffman & Pollok, LLP, New York, NY

For Appellee:

Elie Honig, Andrew L. Fish, Assistant United States Attorney, New York, NY

US v. Young, No. 07-2729

Defendant's murder conviction as to one victim is affirmed where defendant was denied due process by the prosecutors' gratuitous exploitation of his prejudicial nickname, "Murder," but this conduct did not prejudice defendant due to the strength of the evidence. However, defendant's murder conviction as to another victim is reversed where the prosecutorial misconduct resulted in prejudice.

Read US v. Young, No. 07-2729

Appellate Information

Argued: May 12, 2009

Decided: October 8, 2009

Judges

Opinion by Judge Jacobs

Counsel

For Appellant:

Jeremy G. Epstein, Seth M. Kean and Grace Lee, Shearman & Sterling LLP, New York, NY

For Appellee:

Ilene Jaroslaw and Peter A. Norling, Assistant United States Attorney, New York, NY

US v. Carreto, No. 06-2295

Defendants' sex trafficking convictions and sentences are affirmed where: 1) defendants did not assert their legal innocence in moving to withdraw their guilty pleas; 2) the government would have been prejudiced by the withdrawal of defendants' pleas; 3) the district court ensured that the pleas were taken knowingly and voluntarily; and 4) the district court did not abuse its discretion in denying one defendant's request for new counsel.

Read US v. Carreto, No. 06-2295

Appellate Information

Argued: October 10, 2008

Decided: October 8, 2009

Judges

Opinion by Judge Chin

Counsel

For Appellant:

Laurie S. Hershey, Manhasset, NY

Julia Pamela Heit, New York, NY

For Appellee:

Monica Ryan and David C. James, Assistant United States Attorney, New York, NY

Telenor Mobile Comms. AS v. Storm LLC, No. 07-4974

In an appeal from the district court's order confirming a final arbitral award in favor of petitioner and denying respondent's cross-motion to vacate, the order is affirmed where: 1) the arbitration panel did not manifestly disregard the law either by failing to give preclusive effect to Ukrainian court judgments that the parties' dispute was not arbitrable because respondent's agent lacked authority to execute the agreement giving rise to the dispute, or by failing to require a trial to determine the agreement's arbitrability; and 2) the agreement was arbitrable as a matter of law because the respondent's agent had the apparent authority to execute it.

Read Telenor Mobile Comms. AS v. Storm LLC, No. 07-4974

Appellate Information

Argued: February 4, 2009

Decided: October 8, 2009

Judges

Opinion by Judge Sack

Counsel

For Petitioner:

Robert L. Sills and Jay S. Musoff, Orrick, Herrington & Sutcliffe LLP, New York, NY

For Respondent:

Pieter van Tol and Gonzalo S. Zeballos, Lovells LLP, New York, NY

US v. Romero-Padilla, No. 08-1817

Defendant's drug conspiracy conviction is affirmed where a conviction under 21 U.S.C. section 959(a) requires proof beyond a reasonable doubt that a defendant actually knew or intended that a substance manufactured or distributed in violation of that section would be unlawfully imported into the U.S., and the government met this burden.

Read US v. Romero-Padilla, No. 08-1817

Appellate Information

Argued: September 1, 2009

Decided: October 7, 2009

Judges

Per Curiam

Counsel

For Appellant:

Michael A. Young and Joyce C. London, Joyce C. London, P.C., New York, NY

For Appellee:

Marc P. Berger and Kevin R. Puvalowski, Assistant United States Attorney, New York, NY

US v. Rigas, No. 08-3485

Defendants' securities fraud sentences are affirmed where: 1) the district court was required to resentence defendants de novo following the reversal of a portion of defendants' convictions by another panel of the court of appeals; 2) based on the district court's alternative ruling, under which it did sentence defendants de novo, their sentences were reasonable. Also, there was no error with regard to denials of defendants' motions for a new trial and to compel discovery.

Read US v. Rigas, No. 08-3485

Appellate Information

Argued: May 5, 2009

Decided: October 5, 2009

Judges

Opinion by Judge Cabranes

Counsel

For Appellants:

Stephen R. McAllister, Thompson Ramsdell & Qualseth, P.A., Lawrence, KS

Neal K. Katyal, Morgan Legal Consulting, Washington, D.C.

For Appellee:

William F. Johnson and Katherine Polk Failla, Assistant United States Attorneys, New York, NY

Loeffler v. Staten Island Univ. Hosp., No. 07-1404

In an action alleging that defendant hospital failed to provide interpreting services to a patient and his wife (both deaf), so that their two children (of normal hearing) had to act as interpreters for their parents, summary judgment for defendant is vacated where: 1) plaintiffs raised a genuine issue of material fact as to whether the hospital acted with deliberate indifference; 2) the children had associational standing under the Rehabilitation Act; and 3) the children's claims under the New York City Human Rights Law were required to be remanded for reconsideration in light of New York City's Local Civil Rights Restoration Act of 2005.

Read Loeffler v. Staten Island Univ. Hosp., No. 07-1404

Appellate Information

Argued: March 19, 2009

Decided: October 6, 2009

Judges

Opinion as to Parts I, III and IV by Judge Jacobs

Opinion as to Part II by Judge Wesley

Dissent as to Part II by Judge Jacobs

Counsel

For Appellants:

Alan J. Rich, Brooklyn, NY

For Appellee:

Roy W. Breitenbach, Garfunkel, Wild & Travis, P.C., Great Neck, NY

Premium Mortgage Corp. v. Equifax, Inc., No. 08-5317

In an action for misappropriation of trade secrets against credit reporting agencies engaged in the practice of permitting lenders competing with plaintiff to purchase pre-screened consumer reports containing "trigger leads" compiled by plaintiff, dismissal of the action is affirmed where: 1) the Fair Credit Reporting Act preempted state law claims based on pre-screened reports; and 2) plaintiff failed to identify the legal basis for defendants' alleged duty and obligation to maintain the confidentiality of trigger leads.

Read Premium Mortgage Corp. v. Equifax, Inc., No. 08-5317

Appellate Information

Argued: March 9, 2009

Decided: October 5, 2009

Judges

Per Curiam

Counsel

For Appellant:

Louis B. Cristo, Trevett Cristo Salzer & Andolina, P.C., Rochester, NY

For Appellees:

David Cooper, Jones Day, New York, NY

Christopher R. Lipsett and David Sapir Lesser, Wilmer Cutler Pickering Hale & Dorr LLP, New York, NY

McBride v. BIC Consumer Prods. Mfg. Co., No. 07-5689

In an action alleging that defendant-employer violated the Americans with Disabilities Act by terminating plaintiff's employment rather than reasonably accommodating her disability, summary judgment for defendant is affirmed where: 1) plaintiff failed to provide evidence that, with aid of a reasonable accommodation, she was qualified for either her pre-disability position or a suitable vacant position to which she could have been reassigned; and 2) in the absence of such evidence, an employer's failure to engage in an interactive process intended to discover an accommodation suitable to both parties is immaterial.

Read McBride v. BIC Consumer Prods. Mfg. Co., No. 07-5689

Appellate Information

Argued: March 9, 2009

Decided: October 5, 2009

Judges

Opinion by Judge Livingston

Counsel

For Appellant:

W. Martyn Philpot, Jr., Law Office of W. Martyn Philpot, Jr., LLC, New Haven, CT

For Appellee:

Michael J. Soltis, Jackson Lewis LLP, Stamford, CT

Wang v. Holder, No. 07-5369

In a petition for review of the BIA's order denying petitioner's application for asylum, withholding of removal under 8 U.S.C. section 1231(b)(3), and withholding of removal under the Convention Against Torture, the petition is denied where petitioner's participation in a scheme to sell organs for profit on the black market was a serious nonpolitical crime.

Read Wang v. Holder, No. 07-5369

Appellate Information

Argued: September 23, 2009

Decided: October 2, 2009

Judges

Per Curiam

Counsel

For Petitioner:

John F. Clark, Holland & Hart LLP, Washington, DC

For Respondent:

James E. Grimes, Gregory G. Katsas, Office of Immigration Litigation, U.S. Department of Justice, Washington, DC

Local 348-S v. Meridian Mgmt. Corp., No. 07-0080

In an appeal from the district court's order requiring defendant to arbitrate the issue of whether it was bound by the terms of a collective bargaining agreement, the order is affirmed where defendant's predecessor corporation was a party to the agreement and thus it was binding on defendant.

Read Local 348-S v. Meridian Mgmt. Corp., No. 07-0080

Appellate Information

Argued: June 20, 2008

Decided: October 2, 2009

Judges

Opinion by Judge Hall

Counsel

For Appellant:

Robert G. Riegel, Jr., Coffman, Coleman, Andrews & Grogan, P.A., Jacksonville, FL

For Appellee:

J. Warren Mangan, O'Connor & Mangan, P.C., New Rochelle, NY

Presbyterian Church of Sudan v. Talisman Energy, Inc., No. 07-0016

In an action alleging that defendant participated in the Sudan government's violations of international law through genocide, war crimes, and crimes against humanity, the dismissal of the complaint is affirmed where plaintiffs failed to establish defendant's purposeful complicity in human rights abuses.

Read Presbyterian Church of Sudan v. Talisman Energy, Inc., No. 07-0016

Appellate Information

Argued: January 12, 2009

Decided: October 2, 2009

Judges

Opinion by Judge Jacobs

Counsel

For Appellants:

Paul L. Hoffman, Adrienne J. Quarry, Schonbrun DeSimone Seplow Harris & Hoffman, Venice, CA

Carey D'Avino, Stephen Whinston, and Keino Robinson, Berger & Montague, P.C., Philadelphia, PA

For Appellee:

Marc J. Gottridge, Joseph P. Cyr, Scott W. Reynolds, and Andrew M. Behrman, Lovells LLP, New York, NY