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Insurer Owed Duty to Defend in Employment Matter, and Criminal, Intellectual Property and Securities Law Matters

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By FindLaw Staff on August 23, 2010 1:00 PM

Capella University, Inc. v. Executive Risk Specialty Ins. Co., No. 08-2382, involved an action alleging that defendant-insurer owed a duty to defend plaintiff against a federal lawsuit brought by one of plaintiff's former students.  The court affirmed in part judgment for plaintiffs on the grounds that 1) the lawsuit was not subject to an exclusion in the policy as based upon, arising from, or in consequence of a prior or pending formal administrative proceeding; and 2) no unfair advantage to plaintiff or detriment to defendant would result from allowing a subsequent, accurate accounting of the fees and costs to form the basis for the award in this case. However, the judgment is reversed in part where plaintiff did not waive its right to statutory prejudgment interest.

Frye v. YMCA Camp Kitaki, No. 09-3010, involved a copyright infringement action regarding a play written by plaintiff and allegedly copied by defendant.  The court affirmed summary judgment for defendant on the ground that the district court's finding that the two plays were not substantially similar was not clearly erroneous.

Lustgraaf v. Behrens, No. 09-2960, involved an action for damages arising out of a Ponzi scheme perpetrated by a registered representative of one defendant and general agent of another.  The court affirmed in part the dismissal of the complaint, on the ground that the complaint did not allege the additional facts necessary to demonstrate that defendant actually exercised control over its subsidiary's general operations rather than merely possessing the ability to do so.  However, the court reversed in part on the ground that plaintiffs met their burden of alleging falsity under the Private Securities Litigation Reform Act.

In US v. Dvorak, No. 09-3463, the court affirmed defendant's convictions for submitting false Medicaid claims in the names of children for whom he did not provide treatment, on the grounds that 1) the jury could have reasonably concluded that defendant's withdrawals were intended, at least in part, to conceal the location of the funds; 2) the interrogatories rendered harmless any error that may have existed with the jury instructions; and 3) the district court's decision to run the sentences consecutively was reasonable.

In US v. Foy, No. 09-3027, the court affirmed defendant's sentence for mailing threatening communications, holding that 1) the record indicated that defendant actually knew early on that consecutive sentences could result in an even more onerous total sentence than the one eventually imposed; 2) defendant had notice prior to sentencing of the possibility of consecutive sentencing and did not object; and 3) the court's decision was the result of serious, reasoned consideration of factors for and against a lengthy sentence based on defendant's individual circumstances.

In US v. Mireles, No. 09-3267, the court affirmed defendant's sentence for conspiracy to commit money laundering, holding that 1) the district court would have been justified in imposing an 18-month sentence as a departure under U.S.S.G. section 4A1.3(a); and 2) in finding that defendant's knowing transportation of drug proceeds was the latest in a decades-long string of offenses related to drug trafficking, the district court employed a common understanding of the term "drug trafficking."

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