Child Pornography Sentence Vacated, and Insurance Matter - U.S. Second Circuit
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Child Pornography Sentence Vacated, and Insurance Matter

Nationwide Mut. Ins. Co. v. Mortensen, No. 08-5214, involved an action arising out of the retention of policyholder information by former insurance agents for plaintiff, summary judgment dismissing both plaintiff's claims and defendants' counterclaims is affirmed, on the grounds that 1) the policyholder information was readily available from another source, and thus did not qualify as a trade secret as a matter of law; 2) plaintiff effectively abandoned its breach of fiduciary duty claim on appeal because it failed to challenge the district court's determination that it could not prove damages on that claim; 3) the agents did not qualify as employees covered by ERISA as a matter of law; and 4) the agents pointed to no evidence showing that plaintiff's allegedly unfair trade practices resulted in an ascertainable loss.

In US v. Dorvee, No. 09-0648, the court of appeals vacated defendant's child pornography distribution sentence, on the grounds that 1) it appeared that the district court believed it was imposing a non-Sentencing Guidelines sentence when, in fact, it selected a sentence conforming exactly to the Guidelines, and thus committed procedural error; 2) the sentence was substantively unreasonable because of the district court's apparent assumption that defendant was likely to actually sexually assault a child, a view unsupported by the record evidence yet one that plainly motivated the court's perceived need "to protect the public from further crimes of the defendant"; and 3) the district court erred in considering it a foregone conclusion that the statutory maximum sentence "probably [would] be upheld" on appeal, apparently because it concluded that its sentence was "relatively far below" the initial Guidelines calculation.

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