U.S. Second Circuit: September 2011 Archives
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September 2011 Archives

Second Circuit Upholds NYC Party Witness Rule

The Second Circuit Court of Appeals issued an opinion this morning upholding New York City’s Party Witness Rule.

Under the Party Witness Rule, a candidate for a political party’s nomination must circulate a “designating petition” to appear on the party primary ballot. The Party Witness Rule was designed to restrict the class of persons a potential candidate could use to circulate a designating petitions.

New York enacted the Rule in the early 1950s, apparently in response to incidents of “party raiding,” whereby members of one party would actively participate in the primary of a rival party in the hope of influencing that party’s candidate nomination and thus improving their own chances in the general election.

Client Bait and Switch is Breach of Fiduciary Duty

Class action lawsuits involve too much uncertainty to make the average, risk-adverse attorney comfortable. Discovery, alone, could continue for years, and the plaintiffs' attorney may never see a dime.

A far more profitable, albeit unethical, law firm model? Hang out a shingle as a plaintiff's attorney, and then work out a deal with the defendants your clients want to sue so that the defendants pay you to persuade the plaintiffs to drop the case.

Maybe we've been influenced by watching too many episodes of Damages, (which, if you haven't seen it, is completely amazing), but this seems like a good idea. Unless you get caught.

FISA Challenge Lives: ACLU Can Pursue Wiretapping Case

The Second Circuit Court of Appeals ruled this week that the American Civil Liberties Union (ACLU) can proceed in its lawsuit questioning the constitutionality of the Foreign Surveillance Intelligence Act (FISA) wiretapping provisions.

Congress passed the FISA Amendments Act in 2008, effectively authorizing warrantless surveillance of Americans’ international email and telephone calls. The ACLU filed its FISA challenge lawsuit less than 24 hours after the bill was passed.

Alleged Ponzi-Schemer's Ex Wins Asset Freeze Dismissal

Divorcing a Ponzi-schemer offers greater financial stability than marrying a Ponzi-schemer.

Last week, the Second Circuit Court of Appeals ordered two federal agencies to un-freeze the ill-gotten gains that an alleged-Ponzi schemer’s ex-wife received through their divorce settlement. Unlike the still-married Ruth Madoff, who forfeited $80 million following husband Bernie Madoff’s arrest, this ex-wife may have a shot at keeping the funds.

Janet Schaberg was married to Stephen Walsh for more than two decades. By the time of their separation in 2004, Walsh had amassed a substantial fortune and the two negotiated a settlement that gave Schaberg a not-insubstantial fortune of her own.

Size Matters: Madoff Victims Lose Appeal Due to 15-Page Limit?

Law firms representing 200 customers cheated by Bernard L. Madoff Investment Securities Inc. (BLMIS) filed papers in the Second Circuit Court of Appeals last week requesting a full court rehearing in In Re: Bernard L. Madoff Inv. Sec., LLC.

In August, a three-judge panel affirmed a bankruptcy judge's decision to disregard the Madoff victims' falsified account statements in calculating recovery from the customer property fund.

Irving Picard, the trustee for liquidation of BLMIS, argued that the customer statements do not reflect "securities positions" that could be "liquidated" because the account statements were wholly the invention of Madoff and do not reflect actual securities positions.

Proximate Cause Necessary for Child Porn Restitution Order

The Second Circuit Court of Appeals ruled last week that a victim of child pornography can seek restitution from the person who created the image, but not from persons who merely possessed the image.

In other words, the Second Circuit thinks that the perverts who create child porn are more terrible (or at least more directly responsible for harm) than the upright citizens who just view it.

In the case, U.S. v. Aumais, defendant Gerald Aumais challenged the court restitution order in his sentence after pleading guilty to transporting and possessing child pornography. Under the order, Aumais was to pay $48,483 to finance counseling costs of "Amy" one of the victims depicted in the images and videos.

Time-Barred LHWCA Defense Inapplicable to Kosovo Shooting Victim

We admit up front that one reason we are writing about this Second Circuit Court of Appeals case is that it includes a fleeting reference to a character named Captain Courage(!).

Elizabeth Mechler was a special enforcement officer for the Kansas Department of Corrections ("DOC") from 1993-2004. Her work required Mechler to carry a firearm. In March 2004, Mechler began a three year contract with Dyncorp, which operates overseas prisons for the United States government. Mechler was assigned to Kosovo, where, on her first day on the job, she and five other Dyncorp employees were shot by a Jordanian soldier working for the United Nations. Three of the victims died.

David Bowie: If 2nd Cir. is Wrong, I Don't Want to Be Right

Warning: Second Circuit attorneys, you may have a David Bowie problem.

Sadly, we’re not talking about a problem stemming from your David Bowie obsession - as if that could be characterized as a problem - but from the D.C. Circuit Court of Appeals holding in David Bowie v. Maddox that criticizes a Second Circuit Court of Appeals holding in Jackler v. Byrne.

David M. Bowie, a former official of the District of Columbia Office of the Inspector General (OIG), claimed he was fired in retaliation for exercising his First Amendment rights. Bowie refused to sign an affidavit his employer drafted for him in response to a former subordinate’s employment discrimination claim; instead, Bowie re-wrote the affidavit in a manner critical of OIG’s decision to fire the subordinate in question.