Denial of European Space Agency's Request for Immunity, Plus Criminal, Immigration, Insurance & Securities Fraud Matters - Civil Rights Law - U.S. Third Circuit
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Denial of European Space Agency's Request for Immunity, Plus Criminal, Immigration, Insurance & Securities Fraud Matters

US v. Doe, 09-2615, concerned a challenge to the district court's sentence of 24 months' imprisonment upon a defendant following revocation of his supervised release, with the objective of helping him recover from his cocaine addiction.

 

In affirming, the court held that, because the plain language and operation of the statute governing post-revocation sentencing, 18 U.S.C. sections 3583(e) and (g), permits a district court to consider medical and rehabilitative needs in imposing a term of post-revocation imprisonment, the sentence is procedurally reasonable.  Also, the district court's sentence is substantively reasonable as defendant has failed to meet the burden of demonstrating that no reasonable sentencing court would have imposed the same sentence for the reasons the district court provided.

Restrepo v. Attorney General, 07-4741, concerned a Colombian citizen's petition for review of the BIA's removal order based on a determination that he committed an aggravated felony.  In denying the petition, the court held that, because petitioner's conviction falls within the ambit of "sexual abuse of a minor," which constitutes an aggravated felony under section 1101(a)(43), the court lacks jurisdiction to review the BIA's order.  The court also hel that petitioner's claim that the removal proceedings brought against him are time-barred is rejected.

OSS Nokalva, Inc. v. European Space Agency, 09-3601, involved a software corporation's suit against the European Space Agency (ESA), for breach of contract relating to license agreements and corresponding software maintenance agreements.  In affirming the judgment of the district court's, but based on reasons other than those relied on by the district court, the court held that, in light of the "same immunity" language in the International Organizations Immunities Act (IOIA), it is unreasonable to assume that those international organizations that were established under the IOIA after foreign sovereign immunity had been altered by the Foreign Sovereign Immunity Act (FSIA) would still be subject to that level of immunity enjoyed by foreign governments and international organizations in 1945.  Therefore, ESA is not entitled to immunity as it stood for foreign sovereigns in 1945.

Newman v. Beard, 08-2652, concerned a challenge to the district court's dismissal of the complaint, in an inmate's pro se civil action under 42 U.S.C. section 1983 against various officials of the Pennsylvania Department of Corrections, claiming that the Parole Board violated his First Amendment right, his right to due process, and the Ex Post Facto Clause by using his refusal to admit his guilt to adversely affect his eligibility for parole.

In affirming the dismissal, the court held that plaintiff's First Amendment claim was properly dismissed as the prison may structure its treatment programs and pursue legitimate penological objectives from that standpoint.  The court affirmed the dismissal of the procedural due process claim, as well as the dismissal of plaintiff's substantive due process claim as the Parole Board's alleged conduct was not arbitrary and did not shock the conscience.  Lastly, the court held that the district court properly dismissed plaintiff's Ex Post Facto claim as he cannot show that the Parole Board's alleged retroactive application of a statute, which provides that certain sex offenders shall attend and participate in a Department of Corrections program of counseling or therapy, created a significant risk of increasing his punishment.

Malack v. BDO Seidman, LLP, 09-4475, involved a plaintiff's putative securities fraud class action against an accounting firm that assisted American Business Financial Services, Inc. (American Business), a subprime mortgage originator based on section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5, claiming that defendant defrauded plaintiff and other investors by providing American Business clean audit opinions that were used to register the notes at issue with the Securities and Exchange Commission (SEC).  In affirming the district court's denial of class certification, the court held that the fraud-created-the-market theory lacks a basis in common sense, probability, or any of the other reasons commonly provided for the creation of a presumption, and as such, the court declines to recognize a presumption of reliance based on the theory.

In Re: Ins. Brokerage Antitrust Litig., 07-4046, concerned a challenge to the district court's dismissal of the actions under Federal Rule of Civil Procedure 12(b)(6), in multiple putative class actions against insurers and insurance brokers, claiming massive conspiracies throughout the insurance industry related to commercial and employee benefit insurance.

The court vacated in part the judgment of the district court where it dismissed the Sherman Act claims with respect to defendants alleged to have engaged in bid rigging in the Marsh-centered commercial conspiracy.  The court also vacated the dismissal of the RICO claims based on the alleged Marsh-centered commercial enterprise, as well as the dismissal of RICO claims based on the alleged CIAB enterprise, with respect to the defendant brokers.  District court's dismissal of the state-law claims is vacated.  Lastly, the court affirmed the district court's judgment in all other remaining respects. 

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