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

February 2013 Archives

No-Show Lawyer Nearly Costs Clients $250,000 Judgment

Woody Allen is quoted as saying that “Eighty percent of success is showing up.” We’re not sure of the exact weight that the federal courts afford to actually appearing for proceedings, but — much like Allen — judges believe that showing up is critical.

So what happens when a lawyer doesn’t bother to show up? Typically, that results in attorney sanctions. In extreme cases, it could interfere with a plaintiff’s judgment. But the Second Circuit Court of Appeals ruled this week that penalizing a client should be a last resort.

Tobacco Companies' Federal Preemption Claim Goes Up in Smoke

In 2009, New York City banned the sale of flavored smokeless tobacco products except in tobacco bars.

Apparently, there are only eight tobacco bars in New York City. None of them sell flavored smokeless tobacco. That means that the city ordinance effectively eliminated flavored smokeless tobacco sales in the city.

Tuesday, the Second Circuit Court of Appeals rejected tobacco companies' claims that federal law preempted the ordinance.

Hofstra Student Worker Can Bring Retaliation Claim After All

The Second Circuit Court of Appeals went meta this week, finding that a former Hofstra grad student could proceed with her retaliation claim against the school.

This is pretty much the Inception of retaliation suits. The student, Lauren Summa, claims that she lost her student job at the University because she filed a retaliation claim against the University after she lost a previous student job.

Take a moment to wrap your head around that.

Court Revives Harassment Claim Based on Saucy Comments

It’s inappropriate for a supervisor to tell his subordinate that her husband was “not taking care of [her] in bed.” That’s a one-way ticket to a sexual harassment lawsuit.

It’s also inappropriate to record your boss without his knowledge or permission. That’s a one-way ticket to termination.

Last week, the Second Circuit Court of Appeals reinstated a Rochester Police Department employee’s hostile work environment claim, finding that the circumstances surrounding inappropriate statements that started and ended during her employment were sufficient to warrant a trial. The court, however, refused to revive the employee’s retaliation claim, concluding that the Department had cause to terminate her because she admitted to recording Department employees without authorization.

Qualified Immunity Denied: Governor Can't Order Civil Commitment

In 2005, then-New York Governor George Pataki directed the State's Office of Mental Health (OMH) and Department of Correctional Services (DOCS) to develop a plan to take executive action to implement a sexually-violent predator initiative that would result in the involuntary commitment of selected SVPs to state psychiatric facilities after the expiration of their criminal sentences.

Those who were committed under initiative weren't too pleased with the lack of due process, and sued Governor Pataki and officials of OMH and DOCS.

This week, the Second Circuit Court of Appeals agreed that the program violated the plaintiffs' procedural due process rights, and that state officials shouldn't receive qualified immunity because they should have known better.

2nd Cir Hears from Rakoff, SEC Regarding Settlements

Will District Judge Jed Rakoff's controversial SEC settlement rejection set the tone for a bolder, badder judiciary?

In 2011, Rakoff blocked a settlement between the Securities and Exchange Commission and Citigroup over a mortgage-bond deal because the SEC didn't provide the court with facts "upon which to exercise even a modest degree of independent judgment." In the opinion, which described the $285 million settlement as "pocket change," Judge Rakoff noted that "there is an overriding public interest in knowing the truth," and the SEC "has a duty ... to see that the truth emerges."

Instead of disposing of the matter, Judge Rakoff ordered to parties to move forward with a trial.

When Judges Clash: 2nd Circuit Dissentals Edition

Judicial clashes can be pretty amusing, particularly because we expect judges to be stoic and unflappable. But clearly there has been some flapping on the Second Circuit Court of Appeals.

Last August, a split Second Circuit panel upheld a high school field hockey coach’s 30-year sentence for attempting to produce child pornography. Circuit Judge Reena Raagi wrote the majority opinion, explaining that the sentence, which fell within the Guidelines range, was reasonable because “no limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence” within the prescribed range.”

Chief Judge Dennis Jacobs dissented, arguing that the sentence unfairly reached beyond “the offense of conviction,” which “amounts to a single act of attempted sexting.”

Second Circuit Certifies Gun License Question to State Court

Justice Sandra Day O'Connor is popping up throughout the circuits lately. It's like she's the judicial groundhog, telling us we're in for six more weeks of legal winter.

For part-time New York residents seeking a gun license in the state, that legal winter will be spent waiting for the New York Court of Appeals to answer a certified question.