Robert Chu pleaded guilty to a drug conspiracy charge in a timely fashion. Ordinarily, we’d call that “acceptance of responsibility.” Except, throughout his detention, including the period after his plea, but before sentencing, he made “persistent” attempts to sneak drugs into prison. Oddly enough, each attempt involved hiding drugs in potato chip bags.
]]> Despite his enduring drug crimes, he maintains that the judge was mistaken in holding that the acceptance of responsibility reduction was inapplicable. He also argued that it was a mistake to hold him responsible for distributing 2.5 kilograms of heroin and to impose a substantively unreasonable sentence of 87 months.Acceptance of Responsibility Reduction
The "defendant bears the burden of demonstrating that he qualifies for such a reduction." He tried to meet this burden by arguing (1) that he only attempted to sneak drugs in and (2) was addicted to drugs and forced to go cold turkey.
Somehow, the Second Circuit has never held that remorse means never having to say you're sorry again. They have now. "[T]oday, we hold that a defendant's attempt to smuggle drugs into a detention center after pleading guilty to a drug-related offense can serve as a sufficient basis for a District Court to deny a sentence reduction for acceptance of responsibility."
And that whole "I'm addicted" argument is foreclosed by prior case law.
60 Grams Ain't 2.5 Kilograms
The Presentence Report only referred to 60 grams of heroin, including the amount sold to the snitch, the amount seized from another customer, and the amount seized from Chu during the arrest. How does 60 grams become 2500 grams?
In the presentence report, there was a recorded conversation where Chu stated that he had sold approximately 100 grams of heroin every two weeks for a year. Add it all up, and that's about 2.5 kilograms. As long as the sentence imposed doesn't break the statutory maximum, a district court may consider drug quantity in determining a sentence, even if the quantity was not charged in the indictment. The judge must make such findings by a preponderance of the evidence.
87 Months for a Couple Kilos? That's Unreasonable
Um, not really. His sentence was near the bottom of the guidelines. In light of the whole drug-smuggling-in-snack food mess, the sentence wasn't "shockingly high" or "otherwise unsupportable by law."
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But should tobacco companies be forced to foot the bill for that type of medical monitoring when the smoker has yet to show signs of cancer? The Second Circuit Court of Appeals isn't sure, so it's asking the New York Court of Appeals to weigh in on the matter by responding to two certified questions.
]]> The tobacco lawsuit at the root of the appellate court's certified questions is Caronia v. Philip Morris. The Caronia plaintiffs are all 50 or older, and either currently smoke Marlboro cigarettes, or stopped smoking them within one year prior of filing this lawsuit. They smoked Marlboro cigarettes for at least 20 pack-years; that's one pack of cigarettes per day for 20 years.Though the plaintiffs aren't currently diagnosed with lung cancer -- or under investigation by a physician for suspected lung cancer -- they're concerned because lung cancer is the leading cause of cancer deaths in the U.S. and more than 80 percent of those deaths result from cigarette smoke. (Sidebar: I'm not a medical expert, but that seems like a good reason for the plaintiffs who "currently smoke Marlboro cigarettes" to stop, right?)
In 2010, a Brooklyn-based federal court dismissed the plaintiffs' claims of negligence, strict liability, and breach of implied warranty of merchantability. Under Rule 12(b)(6), the court also granted Philip Morris' motion to dismiss a free-standing claim for medical monitoring of Marlboro smokers who lack symptoms of smoking-related disease. The court reasoned that relief couldn't be granted because the plaintiffs could not sufficiently plead that their injuries -- increased risk of cancer from smoking Marlboros -- were proximately cause by Philip Morris' conduct.
This week, the Second Circuit affirmed dismissal of most of the claims, but kicked the medical monitoring claim back to the New York Court of Appeals via certified questions. Specifically, the federal appellate court has asked the state's highest court to decide:
If the state court decides that the plaintiffs can pursue the medical monitoring claim, Philip Morris could end up paying for medical monitoring for more than 100,000 current and former New York smokers, according to the Daily Report.
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The Vatican, however, doesn’t answer to just any higher power; it litigates in its own courts, governed by its own laws.
]]> In 2000, the Vatican entered into a Master License Agreement with Second Renaissance, granting Second Renaissance the rights to produce and market specific lines of products based on reproductions of artifacts in the Vatican Library and, subject to certain conditions, to sublicense those rights.The Master License Agreement provided that Second Renaissance would have the right to sell, sublicense or assign the rights if the sublicensee or assignee agreed to be bound by the Master License terms and conditions, and the Vatican approved of the sublicensee in writing. The Master License Agreement also contained a forum selection clause and choice of law clause stating that conflicts would be resolved in Vatican City and be governed by Vatican law.
In 2001, Second Renaissance entered into seven sublicense agreements with Magi for production of candles, chocolates, confections, flowers, stamps, wrapping paper/gift bags, and fundraising materials, which would all bear the name, logo, and seal of the Vatican Library. The Sublicense Agreements were approved by the Vatican Office of Publications, and contained the pro-Vatican forum selection and choice of law clauses.
In 2007, Magi sued Second Renaissance and the Vatican in a federal court in New York alleging fraud, negligence, breach of contract, unjust enrichment, and conversion. That, of course, presented a problem with the choice of forum and choice of laws provisions. The district court granted the Vatican's motion to dismiss for improper venue on the basis of the forum selection clauses in the Sublicense Agreements. The Second Circuit Court of Appeals affirmed that ruling this week.
Reviewing the validity of the forum selection clause, the Second Circuit held that a non-signatory to a contract containing a forum selection (here, the Vatican) clause may enforce the forum selection clause against a signatory (Magi) when the non-signatory is "closely related" to another signatory (Second Renaissance).
In such instances, the relationship between the non-signatory and that (latter) signatory must be sufficiently close that the non-signatory's enforcement of the forum selection clause is foreseeable to the signatory against whom the non-signatory wishes to enforce the forum selection clause.
Here, the Vatican State was closely related to Second Renaissance by virtue of the Master License Agreement. In addition, the Vatican State's relationship with Second Renaissance was sufficiently close with regard to the licensing of reproductions of items in the Vatican Library collection that it was foreseeable to Magi that the Vatican State would seek to enforce the forum selection clauses in the Sublicense Agreements.
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During the 2008 election cycle, Fairey used a 2006 Associated Press photograph to create his Barack Obama “Hope” design. The AP sued Fairey, who initially claimed fair use. He later settled the matter out of court, according to Photo District News.
Today, however, the Second Circuit Court of Appeals issued a decision in a similar copyright infringement lawsuit, which suggests that Fairey was actually right about the fair use doctrine.
]]> The case involves a dispute between artist Richard Prince and photographer Patrick Cariou. In 2000, Cariou published Yes, Rasta, a book of photographs of Rastafarians in Jamaica. In 2007, Richard Prince, an "appropriation artist," exhibited his Canal Zone series, which featured images or parts of images from 41 Yes, Rasta photos. Prince's works were attached to wooden backer boards and included paint over portions of the photos, reports BNA.Cariou sued Prince, Gagosian Gallery, and Larry Gagosian for copyright infringement. (Most of the Canal Series was displayed and marketed through Gagosian Gallery.) Prince and Gagosian responded that Prince's use of the photographs fell under the fair use doctrine. Judge Deborah Batts rejected their fair use defense, finding that in order for a work to meet the "transformative" prong of the fair use test, it must "in some way comment on, relate to the historical context of, or critically refer back to the original works."
The Second Circuit Court of Appeals rejected Judge Batts' reasoning this week, concluding that the law does not require that a secondary use comment on the original artist or work, or popular culture. Instead, the appellate court decided to go with the always-reliable "reasonable person" standard.
Applying the reasonable person standard, the appellate court concluded that 25 of 30 works in question satisfied the fair use criteria because they "have a different character" from the original work, give it a "new expression" and employ "new aesthetics with creative and communicative results distinct" from the original, The New York Times reports. The Second Circuit remanded the analysis for the remaining five works to the district court.
Until the Supreme Court says otherwise, the line between fair use transformation in art and derivative images that constitute copyright infringement will be determined by "reasonable" people.
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A defendant may grab an appellate court’s attention by arguing that a sentencing court improperly calculated rehab into his sentence, but today’s Second Circuit ruling demonstrates why he won’t necessarily win.
]]> Brandon Lifshitz pleaded guilty to two separate child pornography charges in 2003 and 2004. He was sentenced to 60 months' imprisonment, followed by 5 years' supervised release. The conditions attached to his supervised release included participation in a sex offender and/or mental health treatment program, abiding by the rules of the sex offender treatment program, and consenting to the use of monitoring programs on his computer.Lifshitz, however, violated the terms of his supervised release. The Probation Office reported:
He missed multiple scheduled appointments at the sexual offender treatment program, he maintained a Facebook account even though such an account violated the terms of his treatment contract, and he failed to deactivate the account when ordered to do so. His treatment provider alerted the Probation Office that Lifshitz reported "communicating in a sexual manner with five minors via CB radio and a phone sex line." He repeatedly used unmonitored computers, including computers at libraries and cafes, to access the Internet. He regularly visited a public library located next to a preschool, even after being warned not to.
Lifshitz found himself back in court and facing more prison time. His attorney argued that Lifshitz's release violations weren't entirely a product of his will because he was mentally ill. Accordingly, the attorney said that he should get a lighter sentence. The sentencing judge disagreed, noting:
It is my intention to impose a period of two years' incarceration, followed by a period of one year of supervised release. It's my intention to impose the special conditions that are in effect, that is, a substance abuse program, sex offense-specific treatment and/or mental health treatment, no deliberate contact with children under 17, etc., submission to a search, and not using a computer, etc.
After Lifshitz was sentenced, but before his appeal, the Supreme Court decided Tapia. Lifshiftz used Tapia to argue that the sentencing court committed procedural error by imposing a two-year prison sentence for the purpose of Lifshitz receiving medical treatment for his mental illness. The Second Circuit Court of Appeals disagreed.
The appellate court, quoting Tapia, noted that "a court commits no error by discussing the opportunities for rehabilitation within prison or the benefits of specific treatment or training programs. To the contrary, a court properly may address a person who is about to begin a prison term about these important matters."
Here, there was no indication that the district court based the length of Lifshitz's sentence on his need for treatment, so the sentence was affirmed.
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But Senator Charles Grassley, the ranking member of the Senate Judiciary Committee, has a plan: the Court Efficiency Act.
]]> The bill, S. 699, would take three seats away from the D.C. Circuit Court of Appeals, and add one seat to both the Second and Eleventh Circuits.According to a statement from Sen. Grassley's office, "The D.C. Circuit has 108 appeals filed per authorized judgeship, the lowest in the nation. By contrast, the Second Circuit has 425 appeals filed per authorized judgeship and the Eleventh Circuit, the busiest appeals court in the country has 583 appeals filed per authorized judgeship."
Grassley's plan would decrease the Second and Eleventh Circuits' caseloads by 7.5 percent. While his office has not indicated how much the D.C. Circuit judges' caseloads would increase, it claims that the workload would remain "among the lowest in the country."
The plan sounds like a winner from a numbers standpoint. Critics, however, argue that Grassley is just trying to preserve a conservative majority on the D.C. Circuit by eliminating seats to which President Obama could nominate liberal judges. Ian Millhiser, writing at ThinkProgress.org, offers a different prospective on the numbers Grassley cited as support for his proposal:
While it is true that the DC Circuit's caseload is relatively small in terms of raw numbers, Grassley's statistics are highly misleading. Unlike other federal courts of appeal, the DC Circuit hears an unusually large number of major regulatory and national security cases, many of which require very specialized legal research, involve intensely long records, and take more time for a judge to process than four or five normal cases of the kinds heard in other circuits.
Do you think the Second Circuit deserves another judge more than the D.C. Circuit? Do you care whether Sen. Grassley's given reason for the Court Efficiency Act is just a pretext? Let us know on Facebook or Google+.
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On Tuesday, the Second Circuit Court of Appeals issued a trio of opinions detailing the deficiencies in some of those claims.
]]> The victims in the In re Terrorist Attacks on September 11, 2001 appeals asserted claims under the Anti-Terrorism Act, the Alien Tort Statute, and the Torture Victim Protection Act -- as well as various common law tort claims -- against purported charities, financial institutions, and other individuals who allegedly provided support and resources to Osama Bin Laden and al Qaeda.The district court granted judgment in favor of 76 defendants on various grounds, including lack of personal jurisdiction, failure to state a claim, and immunity pursuant to the Foreign Sovereign Immunities Act (FSIA).
Asat Trust Reg., et al.
The Asat Trust opinion addresses only the claims dismissed for lack of personal jurisdiction.
The Second Circuit agreed with the district court that it lacked personal jurisdiction over most of the defendants pursuant to its decision in In re Terrorist Attacks III because the plaintiffs failed to plead facts sufficient to show that most of the defendants expressly aimed their allegedly tortious conduct at the U.S. The appellate court, however, partially remanded the case, finding that jurisdictional discovery was warranted with regard to 12 of the defendants.
Saudi Joint Relief Committee and the Saudi Red Crescent Society
This opinion involves only two defendants that were dismissed from this action pursuant to the FSIA.
Here, the question was whether the actions of the SJRC and SRC satisfied the requirements of the noncommercial tort exception, which provides an exception to FSIA immunity when money damages are sought against a foreign state or its instrumentalities personal injuries or losses in the U.S. "caused by the tortious act or omission" of a foreign state or of any official or employee of that state while acting within the scope of his office or employment.
The alleged "torts" committed by the SJRC and the SRC occurred outside the United States, so the appellate court agreed that the noncommercial tort exception didn't apply.
Al Rajhi Bank, et al.
This opinion involves the defendants who prevailed on a Rule 12(b)(6) argument. The appellate court, again, affirmed, noting that the ATA claims were properly dismissed in light of Rothstein v. UBS AG because plaintiffs cannot allege aiding-and-abetting claims under the ATA, and didn't make the necessary allegation under the ATA that the actions of the Rule 12(b)(6) defendants proximately caused their injuries.
The appellate court also reasoned that the ATS claims were without merit because there's no universal norm against "terrorism" under customary international law, as is required by the ATS, and the TVPA claims failed in light of Mohamad v. Palestinian Authority (holding TVPA only imposes liability on natural persons). Finally, the court ruled that the plaintiffs failed to allege that the Rule 12(b)(6) defendants owed them a duty or that they proximately caused their injuries.
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But Gladys Sotomayor, a 56-year-old, Hispanic New York City schoolteacher who shares a surname with the Justice, claims that the New York City Department of Education skirted a slew of state and federal law by discriminating against her.
]]> Sotomayor alleged violations of the Age Discrimination in Employment Act, Title VII of the Civil Rights Act, 42 U.S.C. § 1983, the New York State Human Rights Law, and the New York City Human Rights Law, claiming that she was discriminated and retaliated against on the basis of her age, race, and national origin. She also claimed that that defendants violated the Family and Medical Leave Act.Sotomayor claims that, beginning in the 2007-2008 school year, defendants unfairly reprimanded her, observed her classroom with unusual frequency, evaluated her classroom performance negatively, and gave her less desirable classroom assignments and duties. She argues that the actions were unwarranted and motivated by discriminatory and retaliatory animus. Defendants acknowledge that they increased their supervision of and attention toward Sotomayor, but they contend they did so to address her performance and behavioral issues.
That's quite a complaint, but the district court agreed with the school system that Sotomayor's claims should be dismissed in summary judgment. This week, the Second Circuit Court of Appeals affirmed that decision.
Summary judgment is appropriate only when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Here, the appellate court upheld dismissal because "no reasonable jury" could find that the school officials' actions were motivated by a retaliatory animus.
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The decree evolved from a qui tam action filed by the Anti-Discrimination Center of Metro New York (ADC), alleging that the County submitted false claims to the U.S. Department of Housing and Urban Development (HUD) in order to obtain federal fair housing grant funds.
]]> In 2009, the County entered a consent decree to resolve the lawsuit, and agreed to affirmatively further fair housing. As part of that obligation, the County agreed to "promote, through the County Executive, legislation currently before the Board of Legislators to ban 'source-of-income' discrimination in housing."The legislation was to ban housing discrimination based upon an individual's source of income, primarily whether that income came from Social Security benefits or any form of state or federal public assistance, including Section 8 vouchers. But in 2010, County Executive Rob Astorino vetoed the source-of-income bill passed by the County Board of Legislators, the Mount Vernon Daily Voice reports.
When HUD complained to the district court that the County had violated the settlement, the County responded that the court lacked jurisdiction to rule on the housing agreement. The Second Circuit disagreed, holding that it was "plain from the face of the consent decree that the district court did indeed have jurisdiction to review the decision of the Magistrate Judge once it had been properly objected to by one of the parties -- in this case, the United States."
The appellate court also ruled against the County on the merits. In doing so, the court noted, "The County would have this Court rely upon the legitimate concerns that motivate modification of long-standing consent decrees to allow the County to shirk its voluntarily agreed to obligations, made less than four years ago, with no showing that the objects of the consent decree have been obtained and strong evidence indicating that they have not been. This we will not do."
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This week, we started to dismiss a Second Circuit Second Amendment defense in a similar fashion. Ron Bryant was sentenced to 81 months in prison for possession with intent to distribute cocaine base and unlawful possession of a firearm in a drug trafficking crime. Bryant moved to vacate the firearm conviction, arguing that he had a right to possess a "legal shotgun" under Heller.
]]> And then we came to the Second Circuit's ruling, which made us chuckle: Sure, people have a right to possess a "legal shotgun." They just don't have a right to possess a legal shotgun for the illegal purpose of drug trafficking.Police seized bags of cocaine and the shotgun in question and while executing a search warrant on Bryant's home. Bryant, pursuant to a proffer agreement, admitted that he was selling narcotics from his residence and using the shotgun recovered by the police for protection in his narcotics-peddling activities.
Before he was sentenced, the Supreme Court issued its Heller ruling; Bryant decided that it could be his get out of jail free card. He argued that the "conclusion to be drawn from" Heller was "that any restrictions on gun possession that 'burden the right of self-defense' by imposing serious criminal sanctions for firearms possession in the home are constitutionally suspect." Since the courts cannot constitutionally assume that all people charged with violating 18 U.S.C. § 924(c)(1) "pose a risk of future violence," Bryant asserted that §924(c) was unconstitutional as applied because his conviction burdened his constitutional right to keep and bear arms in defense of his own home.
The Second Circuit, however, noted that while Bryant may have purchased and possessed the shotgun for the "core lawful purpose" of self-defense, his Second Amendment right to continue in that possession was not absolute. Once Bryant engaged in "an illegal home business," he was no longer a law-abiding citizen using the firearm for a lawful purpose and his conviction for possession of a firearm didn't burden his right to bear arms.
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The company doesn't have a license from copyright holders to record or transmit those programs; a fact not lost on the broadcasters that rely on fees to stay afloat. The broadcasters sued Aereo for copyright infringement, but the Second Circuit Court of Appeals ruled in a 2-1 decision on Monday that Aereo is okay because its tiny antenna business model conforms to the circuit's ruling in Cartoon Network v. CSC Holdings.
]]> The Second Circuit explained "From its subscribers' perspective, Aereo functions much like a television with a remote Digital Video Recorder (DVR) and Slingbox. Behind the scenes, Aereo's system uses antennas and a remote hard drive to create individual copies of the programs Aereo users wish to watch while they are being broadcast or at a later time. These copies are used to transmit the program to the Aereo subscriber."Since the transmission of a broadcast TV program through an individual's rooftop antenna is private, the court concluded there was "no reason why the result should be any different when that rooftop antenna is rented from Aereo and its signals transmitted over the Internet" as long as only one person could receive that antenna's transmissions.
According to Ars Technica, Aereo's antenna technology was designed around the Cartoon Network ruling holding that a "remote" DVR product offered by Cablevision didn't violate copyright law:
Key to that ruling was Cablevision's decision to create a separate copy of recorded TV programs for each user ... Because each copy was viewed by only one household, the court ruled that Cablevision was not engaged in a "public performance" of copyrighted works ... In Aereo's server rooms are row after row of tiny antennas mounted on circuit boards. When a user wants to view or record a television program, Aereo assigns him an antenna exclusively for his own use. And like Cablevision, when 1000 users record the same program, Aereo creates 1,000 redundant copies.
Judge Denny Chin doesn't think that the tiny antennas make a difference. He wrote in his dissent, "The system is a Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law."
Aereo is currently limited to New York City subscribers, but Aereo-backer Barry Diller (a.k.a. Mr. Diane von Furstenberg) told The New York Times that the company will begin expanding in light of its victory. That move could also benefit the broadcasters. Federal courts outside the Second Circuit are not bound by Monday's ruling, so the broadcasters could potentially create a circuit split by challenging the Aereo business model as the company expands. If the broadcasters can force a split, both parties would petition the Supreme Court for a resolution.
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Plaintiffs Lee Johnson and Joey Marie Kelly initiated a putative class action against Priceline for breach of fiduciary duty and contract arising from Priceline's alleged failure to disclose to its "Name Your Own Price" customers that a successful bid for a hotel room will generally exceed the amount Priceline pays the hotel vendor. Priceline retains the difference as profit.
]]> A district court dismissed the case because Priceline, as a matter of law, did not stand in a fiduciary relationship to the Name Your Own Price customers. Wednesday, the Second Circuit Court of Appeals affirmed dismissal.Johnson and Kelly's amended complaint may have placed too much emphasis on Shatner's persuasive powers. They explained that, "In one notable commercial [actor William] Shatner, on behalf of a customer, uses his seductive powers to convince a hotel reservationist to lower the room price on a four-star hotel room in Chicago from $200 to $99," Reuters reports. They argued that, through such ads Priceline represented itself "as a travel agent with the client's best interests in mind."
The Second Circuit disagreed, finding that "Nothing in the advertisements implies that customers retain control over this negotiation process." (Not even Shatner's gravelly voice and bedroom eyes. Sad face.)
According to the appellate court, "Once Priceline accepts a customer's bid, it is contractually obligated to provide the desired accommodations at the stated sum. After submitting the bid, however, the customer retains no authority over the manner in -- or price for -- which the reservation will be procured. Thus, neither the bid nor its acceptance gives rise to a fiduciary duty of disclosure."
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Before the Second Circuit Court of Appeals answers these questions, it wants a little guidance from the New York Court of Appeals because the New York courts are virtually silent about a plaintiff’s ability to sue a medical corporation directly for a non-physician employee’s ultra vires disclosure of the plaintiff’s confidential medical information.
]]> The question for the New York Court of Appeals:Whether, under New York law, the common law right of action for breach of the fiduciary duty of confidentiality for the unauthorized disclosure of medical information may run directly against medical corporations, even when the employee responsible for the breach is not a physician and acts outside the scope of her employment?
The facts in the case leading to this question would give anyone cause for concern, but they prove especially noteworthy in New York, where so many celebrities seek medical treatment.
The plaintiff, John Doe, was at the Guthrie Clinic - Corning Steuben to be treated for a sexually transmitted disease. Magan Stalbird, a nurse, worked at the Clinic. Stalbird was the sister-in-law of Doe's girlfriend, Jessica.
While Doe was at the Clinic, and for reasons having nothing to do with Doe's care, Stalbird sent six text messages to Jessica discussing Doe's STD and medical condition.
After Doe learned about the messages and complained to the Clinic, the Clinic fired Stalbird and notified Doe that appropriate disciplinary action had been taken.
Doe sued the clinic for common law breach of fiduciary duty to maintain the confidentiality of personal health information, breach of contract, negligent hiring, negligent infliction of emotion distress, intentional infliction of emotional distress, and breach of duty to maintain the confidentiality of personal health information under three New York laws: Civil Practice Law § 4504, Public Health Law § 4410, and Public Health Law § 2803-c.
The district court granted the Clinic's 12(b)(6) motion to dismiss all eight claims.
On appeal, the Second Circuit concluded that the availability of a common law cause of action directly against the Clinic under these circumstances raised was a question for the New York Court of Appeals, and stayed the appeal pending an answer.
We'll keep you posted as the case progresses. In the all-knowing TMZ era, we suspect that a lot of celebrities (and attorneys-to-the-stars) will be following this case.
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The district court dismissed their claim, finding that it was precluded by the Contract Disputes Act (CDA).
The Second Circuit Court of Appeals, in a matter of first impression, affirmed that decision. The ruling brings the Second Circuit in line with the Seventh and Ninth Circuits, as well as the district courts that have considered the issue.
]]> MES is a New York corporation that specializes in building complex structures such as laboratories, weapons testing facilities, and warehouses for munitions and explosives. Since 1992, it has performed construction work for the Army Corps of Engineers. Between September 19, 2003, and September 29, 2006, the Corps awarded MES three contracts for work to be performed at the Picatinny Arsenal in Dover, New Jersey.It is undisputed that the Arsenal contracts weren't performed according to the Corps' specifications. Thus, between March and December 2008, the Corps provided MES with written notice that it was terminating each of the contracts for default.
MES challenged the contract terminations before the Armed Services Board of Contract Appeals (ABSCA), claiming that the Corps was responsible for the delays due to specifications defects and demands for additional unfunded work beyond the original agreements. ABSCA dismissed the claims, so MES sued both the Corps and individual Corps officials. The company alleged that the defendants unlawfully retaliated against MES because its president, George Makhoul, complained that the Corps had violated the Anti-Deficiency Act in demanding that MES perform additional unfunded work.
All of the courts seem to agree that the CDA offers a comprehensive scheme for securing relief from the U.S. for any disputes pertaining to federal contracts. The existence of that statutory scheme precludes MES from pursuing Bivens claims against federal employees in their individual capacities for alleged due process or First Amendment violations.
If you have a client who is peeved about a canceled federal contract, the CDA is your only route to recovery.
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But the Second Circuit’s decision in the Louboutin-YSL red-soled shoe showdown left a void in our lives. So it’s with great joy that we announce that Monsieur Louboutin was kind enough to return to the Second Circuit for an encore performance involving a court order in the case.
To give the order context, let’s review the facts leading up to the most recent installment in this stylish dispute.
]]> In 2011, U.S. District Judge Victor Marrero ruled in Louboutin-YSL Round One that a color cannot be trademarked. And that sent the fashion world into a panic.In September 2012, the well-heeled among us breathed a collective sigh of relief when the Second Circuit concluded that Judge Marrero's holding that a single color can never serve as a trademark in the fashion industry "is inconsistent with the Supreme Court's decision in Qualitex Co. v. Jacobson Products Co." The appellate court said that Louboutin's sole deserves trademark protection, but Yves St. Laurent didn't infringe that trademark with its monochromatic shoes.
The Second Circuit noted "Louboutin's trademark, consisting of a red, lacquered outsole on a high fashion woman's shoe, has acquired limited 'secondary meaning' as a distinctive symbol that identifies the Louboutin brand," but limited the trademark to uses in which "the red outsole contrasts with the color of the remainder of the shoe."
After the appellate court issued its ruling, the clerk of court issued a mandate directing the U.S. Patent and Trademark Office to "make appropriate entry upon that Office's records to reflect that [Louboutin's trademark] is limited to a red lacquered outsole on footwear that contrasts with the color of the adjoining ("upper") portion of the shoe." In January 2013, Louboutin filed a letter with the clerk of court requesting a modification of that mandate to make the language more precise.
While precision is great -- particularly in finely-crafted footwear -- the Second Circuit concluded that Louboutin "made no showing that any of the factors favor recall and modification of the mandate." Because the designer did not present the "exceptional circumstances" required to grant such a request, the court refused to modify the mandate.
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