If you a purchase a $200 sweater for $100, you have incurred a $100 charge on your credit card bill; it doesn’t matter what the sweater originally cost.
The Second Circuit Court of Appeals says that same reasoning applies to a catastrophic care insurance policy: “Incurred” refers to the amount spent, not the value received.
We have sports on the brain as we prepare for the most important football game of the year this weekend, so we're taking a break from our usual coverage of attorney sanctions and standing to check on the progress of the 2011 NBA Lockout.
How, you might wonder, is the players' lockout related to the Second Circuit Court of Appeals?
We're glad you asked.
The Second Circuit Court of Appeals ruled Wednesday that Financial Industry Regulatory Authority, Inc. (FINRA) does not the authority to bring court actions to collect disciplinary fines.
FINRA is a “self-regulatory organization” as a national securities association registered with the Securities and Exchange Commission (SEC) that is responsible for conducting investigations and commencing disciplinary proceedings against [FINRA] member firms and their associated member representatives relating to compliance with the federal securities laws and regulations.
A long standing Copyright Act dispute before the Second Circuit Court of Appeals was denied rehearing by the U.S. Supreme Court this week.
The case involves a 1938 copyright of some very famous works -- titles including "Grapes of Wrath" and "Of Mice and Men."
The heirs of the late author John Steinbeck have been litigating their rights to his works for several years. The copyright lawsuit was brought by the author's only living son, Thomas Steinbeck. The younger Steinbeck and his daughter, Blake Smyle, currently receive a portion of the proceeds from Steinbeck book sales, reports The Associated Press.
The 2nd Circuit Court of Appeals ruled unanimously in favor of fashion designer Todd Oldham this week in Manhattan. Oldham was embroiled in a battle against Gap Inc. owned clothing store Old Navy over a breach of contract lawsuit. In reaching its decision, the Court of Appeals said that the Manhattan district court erred in dismissing two counts from Oldham’s complaint against the retailer.
The lawsuit was based on Oldham’s dismissal as the creative director for Old Navy and the subsequent breach of a deal whereby the clothing retailer allegedly agreed to develop a clothing line named after Oldham, reports New York Post. The agreement was made between Old Navy and Oldham’s company, L-7 Designs, Inc.
Breach of Contract Action
In Diesel Props. S.r.l. v. Greystone Bus. Cred. II LLC, No. 09-3899, an action for breach of contract, unjust enrichment, and account stated, the court affirmed in part the dismissal of plaintiff's claims and partial judgment for defendant where plaintiff failed to prove the causation element of its claim against defendant for breach of the agreement's notice provisions. However, the court reversed in part where plaintiff had a contractual right to receive the order book at issue at the relevant time, and that right was superior to defendant's security interest.
Life Insurance Benefit Dispute
In Wilson v. Northwestern Mut. Ins. Co., No. 09-1895, an action claiming that plaintiff was the beneficiary of two life insurance policies issued by defendant to her late husband, the court affirmed summary judgment for defendant-insurer in part, where there were no modifications, oral or otherwise, of the written terms of the Term Life Policy. However, the court reversed in part where a reasonable jury could find that the retroactive refund by defendant was a self-serving afterthought, designed to reduce the length of the decedent's policy coverage.
Dispute Over Use of Natural Gas Storage Facility
In AEP Energy Servs. Gas Holding Co. v. Bank of Am., N.A., No. 08-4196, an action against two banks in alleging a superior right to continue to use the gas in a natural gas storage facility, the court affirmed in part summary judgment for defendants the district court was correct that defendant retained a valid security interest in the gas under the operative agreements, and the plaintiffs' refusal to return the gas thereafter constituted conversion. However, the order is reversed in part where defendants could identify no special circumstances sufficient to overcome the presumption in favor of adjudication of the Tort and Contract Claims in the Texas District Court, where the action was originally filed prior to transfer.
Breach of Contract Action by Ex-MSNBC Anchor
In DiFolco v. MSNBC Cable L.L.C., No. 09-2821, an action for breach of contract (and related New York Labor Law violations), defamation, and tortious interference with prospective business relations, based on the termination of plaintiff's employment by defendant as an entertainment reporter, correspondent, and anchor, the court affirmed in part the dismissal of the complaint where the complaint failed entirely to describe any third party with whom plaintiff had prospective business relations to be interfered with. However, the court vacated in part where 1) the district court improperly considered an e-mail not incorporated into the complaint; and 2) plaintiff was entitled to show that the "negative characterization" presented on the website "is coupled with a clear but false implication that the author is privy to facts about the person that are unknown to the general reader."
Royal & Sun Alliance Ins., PLC v. Ocean World Lines, Inc., No. 08-4324, involved an action based on damage to a printing press shipped pursuant to a bill of lading. The court of appeals affirmed partial summary judgment for defendant on the ground that the Supreme Court previously held that the Carmack Amendment "does not apply to a shipment originating overseas under a single through bill of lading," in Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp., ___ S.Ct. ___ (2010).
S.K.I. Beer Corp. v. Baltika Brewery, No. 06-3501, concerned plaintiff's appeal from the district court's order granting defendant's motion to dismiss the complaint based upon a forum selection clause in the parties' written agreement. The court of appeals affirmed on the ground that plaintiff failed to make a clear showing that enforcement of the parties' contractual forum selection clause was unreasonable, unjust, or invalid.
US v. Pickett, No. 09-0683, involved defendant's appeal from the district court's imposition of restitution more than ninety days after defendant's sentencing hearing, based on his conviction for access device fraud. The court of appeals affirmed on the ground that the district court had the authority to order restitution pursuant to Dolan v. United States, ___ S. Ct. ___ (Jun. 14, 2010).
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