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

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A small group of plaintiffs are all breathing a collective sigh of relief thanks to a recent Second Circuit decision vacating the dismissal of their case. The case was dismissed sua sponte by the federal district court after the plaintiffs' attorney failed to show up on time for a pretrial conference.

After waiting just under half an hour for the late lawyer to show, the lower court dismissed the matter with prejudice, despite the fact that the case was through discovery and motions and basically ready for trial. The attorney on the matter, a solo practitioner, had tried to attend three different hearings all in different courthouses all in one morning. Clearly, it did not work out for him, even though the plaintiffs did prevail in this appeal.

Court Restores EPA's Water Transfer Rule

Turning the tide against environmentalists, a federal appeals court has upheld the Environmental Protection Agency's rule on water transfers.

The Second Circuit Court of Appeals said the Water Transfers Rule is not subject to the National Pollutant Discharge Elimination System, which permits and scrutinizes water quality throughout the country. The EPA rule has allowed water providers to transfer water from one body of water to another -- without NPDES permits -- for decades.

Environmental groups, including conservation and sporting organizations as well as several state, provincial, and tribal governments, argued in their lawsuit that the rule violated the Clean Water Act of 1972. A district court agreed, but the appellate court reversed.

"The EPA's interpretation of the Clean Water Act as reflected in the Rule is supported by several valid arguments--interpretive, theoretical, and practical," the court said in a divided opinion.

Lynn Tilton Loses Bid to Bring Case to Circuit Ct. Over SEC ALJ

The matriarch of Patriarch Partners, the private equity firm, has lost her bid to halt SEC administrative proceedings over her alleged defrauding of investors. Lynn Tilton, founder of Patriarch, will have to go through lower SEC administrative channels first and exhaust those proceedings before getting any type of review by the federal appellate court.

The ruling is no surprise given the increase in the of SEC court proceedings following the Dodd-Frank Act of 2010.

2nd Cir. Affirms Dismissal of ERISA Parity Case Against Anthem

The Second Circuit affirmed a lower court's dismissal of an ERISA discrimination suit against health insurers Anthem on the grounds that the latter discriminated against mental-health patients by reimbursing them less than other patients.

But the thrust of the disputed issue at law still remains red hot. The case was not dismissed on the merits so much as the circuit decided that psychiatrists, who brought the suit on behalf of their patients, lacked standing.

Want to represent New Yorkers while keeping your only law office in Connecticut or New Jersey? Fuhgeddaboutit!

The Second Circuit has upheld New York's law requiring out-of-state attorneys to maintain a physical office in the state, reversing a district court opinion declaring the rule an unconstitutional violation of the Privileges and Immunities Clause. Sorry Empire State moon lighters, it's time to start looking for a lease.

2nd Cir. Unseals Atty Suit Records in Kickback Scandal

The Second Circuit ruled recently that the law firm of Bernstein Litowitz Berger & Grossmann LLP can't hide up court records in a lawsuit in which a "disgruntled employee" was forced to resign after shining a light on potentially unethical conduct by lawyers at the firm.

Weighing the public interest versus potential harm to litigants and individual reputations, the circuit court found that the "the interests favoring secrecy ... are weak."

2nd Circuit Ruling Is a Boon for Defendants in Mass Tort Cases

The Second Circuit gave a real treat in the decision Brown v. Lockheed Martin Corp.; the court really tossed a bone to potential defendants in mass tort cases. In this case, the circuit court found that despite "systematic and continuous" presence in Connecticut, applicable law dictated that Lockheed was not "essentially at home" for general jurisdiction purposes.

Before there was Enron, there was Cendant. Cendant, a travel and real estate company, cooked its books for 12 years, in one of the largest accounting frauds ever. When the fraud was discovered, Cendant's stock crashed, with investors losing $19 billion in a single day -- the largest tumble on record, until Enron came around.

It took three trials and over eight years for Walter Forbes, former Cendant chairman, to be convicted of securities fraud for his role in the fraud. He was sentenced to 12 years and ordered to pay $3.275 billion in restitution -- again, the largest restitution award ever, until Bernie Maddof came around. 

Forbes won't be getting a fourth trial, as the Second Circuit on Tuesday rejected his request to be retried because of newly discovered evidence. Not only does the case keep Forbes locked up, but it adds a new layer to the Second Circuit's treatment of newly discovered evidence. While known but physically unavailable evidence may be considered newly discovered, that which was withheld because of the Fifth Amendment will not.

Nothing can keep a lawyer up at night like the fear of missing a deadline or failing to file a required document. Not only do such errors do a disservice to the client, they can make the attorney look like a fool.

Well, apparently not every lawyer has those worries.

In a scathing public reprimand, the Second Circuit has suspended attorney Andres Aranda for extensive misconduct. Aranda was suspended for eighteen months for failing to file papers, briefs or respond to court orders, leading to numerous defaults in appeals in the Second Circuit.

More than 22 years ago, environmental advocates accused Texaco, later acquired by Chevron, of polluting the Amazonian rainforest homeland of 30,000 Ecuadorians. Since then, the controversy has produced reams of media coverage, a well-received documentary, and a judgment of nearly $9 billion against Chevron.

It also produced a three hundred page court opinion finding that the billion dollar judgment to be based on fraudulent evidence, bribery and deceit -- and preventing enforcement of the judgment under an anti-racketeering statute often used for mobsters, not environmental lawyers.