UNFAIR COMPETITION/BUSINESS PRACTICES

Feesers, Inc. v. Michael Foods, Inc., August 14

J. Rendell finds that plaintiff proffered sufficient evidence to show that it actually competes with defendant Sodexho and that defendant Michael Food's discriminatory pricing thus has an unfair effect on plaintiff's business. The district court used the wrong standard in its determination on this issue. Reversed.

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IMMUNITY

Barton v. Curtis, August 13

[Amended opinion.] J. Sloviter finds that because the district court denied defendant summary judgment based on his claims of qualified immunity, the circuit does not have jurisdiction to hear an appeal of the summary judgment. Dismissed.

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THEFT

United States v. Vitillo, August 10

[Amended opinion.] J. Roth holds that an independent contractor who receives government funds and oversees a government project can be indicted under the code aimed at managers of government agencies and projects who steal government funds. Evidence of defendant's guilt was overwhelming and thus any possible prejudice due to prosecutorial misconduct was eliminated.

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MARITIME, NEGLIGENCE

In re Moran Towing, August 8

J. Siler finds that claimants' pilots were solely responsible for the damage to plaintiffs' ship because the record shows that the docking pilot was an independent contractor under the control of claimants, and that it was the claimants' pilots' improper maneuvering that caused the accident. Affirmed.

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CONTRACT

New Jersey Transit Corporation v. Harsco Corporation, August 8

J. Garth finds that because plaintiff specified that defendant must warranty the track geometry inspection vehicle it provided for one year, there was no implied warranty beyond that period of time. Affirmed.

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PLEA, RESTITUTION

United States v. Lessner, August 8

Defendant was convicted of 21 counts of wire fraud, defense procurement fraud, and obstruction of justice. J. Barry finds the trial court made sufficient inquiry into the effects of defendant's medication on her understanding of her guilty plea. That defendant's failure to accept greater responsibility for her actions even in the plea suggests that she was not entitled for a greater offense reduction. The restitution amount was proper since the record clearly showed defendant could pay it, and defendant failed to establish that her bottom-of-the-range sentence was unreasonable. Affirmed.

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EMPLOYMENT, EVIDENCE

Marra v. Philadelphia Housing Authority, August 3

J. Ambro finds that the evidence adequately demonstrates that plaintiffs suffered retaliation for their participation in an employment discrimination lawsuit, as numerous incidents of harassment and eventually termination occurred in the months following the trial, and testimony suggesting that defendant threatened repercussions for participation was admissible. Affirmed.

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BANKRUPTCY

In re Connors, August 3

J. Barry holds that a Chapter 13 debtor does not have the right to cure a default on a mortgage secured by his principal residence between the time the residence is sold at a foreclosure sale and the time the deed is delivered because the sale is considered complete at the gavel, not at deed delivery. The debtor only has post-sale remedies if he objects to the foreclosure sale within 60 days of his bankruptcy petition. Affirmed.

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BANKRUPTCY

In re Steven Perlin, August 3

J. Cowen finds the bankruptcy court properly refused to dismiss the debtors' bankruptcy petition because the facts and circumstances of the case do not support a bad faith finding. High income and a comfortable lifestyle alone do not support a bad faith finding since the debtors made no attempt to conceal financial information and were cooperative and forthcoming. Affirmed.

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BANKRUPTCY

Skiba v. Laher, August 2

J. Rendell holds that the debtor's TIAA-CREF retirement annuity is excluded from the bankruptcy estate because the annuity fits the definition of a trust in New York law. Reversed.

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GOVERNMENT

Pennsylvania Federation of Sportsmans Clubs v. Kempthorne, August 2

J. Fisher finds that the decision by the Office of Surface Mining Reclamation and Enforcement to terminate a program deficiency notice and delete a required amendment was inconsistent with its own regulations and regulatory obligations. OSM supervision should continue until full guarantees of reclamation are in place. Reversed.

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ARBITRATION, JUDICIARY

Edwards v. Hovensa, August 2

J. Sloviter finds that the sole fact of a disparity in the considerations given to parties in the employment contract's arbitration provision does not render the provision substantively unconscionable under Virgin Islands law. Although the provision requires only one side to submit its claims to arbitration, the provision does not limit the rights of that party within arbitration. The Virgin Islands Supreme Court would be unlikely to disagree, and the district court is required to adhere to local law. Vacated.

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PRISONERS RIGHTS

Washington v. Superintendent Edward Klem, August 2

J. Nygaard holds that the Pennsylvania Department of Corrections' restriction that inmates possess only ten books at a time in their cells places substantial burden on inmates' religious exercise. The Department failed to show that its rule is the least restrictive means to further its interest in the safety and health of prison inmates and employees. Reversed.

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ERISA

Graden v. Conexant Systems, Inc., July 31

J. Ambro finds that plaintiff had standing to sue his former employer for mismanagement of the retirement plan's assets, even though plaintiff was ostensibly "cashed-out," because under ERISA, plaintiff is a "participant" since he is merely seeking the full amount of benefits he should have received and not extra-contractual damages. Vacated and remanded.

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SENTENCING, INEFFECTIVE ASSISTANCE

United States v. Hankerson, July 31

J. Garth finds that defendant's sentence was reasonable, as the sentencing guidelines were based on a proper career offender determination, and defendant generally fails to demonstrate why his sentence was unreasonable. Defendant's ineffective assistance claim fails because the argument defendant alleges his counsel should have raised is clearly without merit. Affirmed.

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IMMUNITY

Barton v. Curtis, July 30

J. Sloviter finds that because the district court denied defendant summary judgment based on his claims of qualified immunity, the circuit does not have jurisdiction to hear an appeal of the summary judgment. Dismissed.

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PRISONERS RIGHTS

Stevenson v. Carroll, July 30

Plaintiffs are inmates awaiting execution who brought due process claims after they were transferred into more restrictive housing without a hearing. J. Smith finds that plaintiffs' claims are sufficient to survive a motion to dismiss, as the allegations in the complaint warrant further examination and discovery, and the warden failed to demonstrate why the transfer was more than arbitrary. Reversed.

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NEGLIGENCE, CIVIL PROCEDURE

O'Connor v. Sandy Lane Hotel Co., Ltd., July 26

J. Chagares finds the district court in Pennsylvania had jurisdiction over plaintiff's personal injury claims. Although the hotel is in Barbados, it purposefully directed its activities at Pennsylvania via newsletters and advertisement mailers. Reversed.

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FIDUCIARY DUTY, EVIDENCE

McCabe v. Ernst & Young, July 23

J. Scirica finds plaintiffs failed to present sufficient evidence for their loss causation claims to survive a summary judgment motion because they failed to show that misrepresentations by defendants had actually caused the stock price decline. Affirmed.

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TAX

Karns Prime v. Commissioner of the IRS, July 20

J. Sloviter holds that an advance payment that lacks an unconditional repayment requirement cannot be considered a loan for tax purposes. Thus, the tax court properly ruled that the $1.5 million dollar payment to appellant was includable in appellant's gross income. Affirmed.

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DRUG OFFENDER, SENTENCING

United States v. Ricks, July 20

J. Fuentes finds that the lower court improperly used a 20-to-1 crack/powder cocaine drug quantity ratio to sentence defendant instead of the 100-to-1 ratio provided for in the Sentencing Guidelines. Even if the 100 to 1 crack to powder cocaine ratio may be unreasonable or unfair, it is the standard mandated by congress and courts may not simply reject it for sentencing purposes. Vacated.

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UNFAIR COMPETITION/BUSINESS PRACTICES

Cosmetic Gallery, Inc. v. Schoeneman Corporation, July 19

J. Scirica finds that there was insufficient evidence that defendant's refusal to sell "salon-only" products to plaintiff constituted an unfair business practice or "group boycott," as evidence proferred by plaintiff of conspiracy was either circumstantial or inadequate to prove anything. Affirmed.

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CIVIL PROCEDURE

Lafferty v. St. Riel, July 19

[Amended opinion.] J. Ambro holds that a suit that is filed in the wrong venue and then transferred is timely filed as long as the original filing date is within the statute of limitations in the new venue. The fact that plaintiff's suit was transferred after the statute of limitations had expired cannot be used to bar his suit. Reversed.

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COMMUNICATIONS, CIVIL PROCEDURE

Core Communications, Inc. v. Verizon Pennsylvania, Inc., July 19

J. Fisher finds that plaintiff's breach of interconnection agreement claim was properly dismissed because the claim should have been taken before the appropriate state authority first. Although Congress has not addressed the issue, previous case law points to that conclusion. However, the lower court improperly dismissed plaintiffs' entire complaint on this basis, as the statute of limitations on plaintiff's other claims will expire by the time the first claim has come before the state authority. Also, the district court failed to claim that the other claims should go before the state authority as well. Vacated in part.

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HABEAS, INEFFECTIVE ASSISTANCE

United States v. Shedrick, July 19

J. Ambro finds the circuit has jurisdiction over defendant's ineffective assistance appeal, in spite of a waiver signed in defendant's plea agreement because holding otherwise could work a miscarriage of justice. Defendant's counsel was not ineffective for failing to fully advise plaintiff of his potential sentence, since the plea agreement he signed clearly stated all sentencing information. However, defendant's counsel was ineffective for failing to communicate with defendant post-sentence and failing to file a timely appeal. Defendant should be allowed to appeal his sentence on the narrow grounds permitted by his plea agreement. Reversed in part.

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IMMIGRATION

United States v. Hernandez-Gonzalez, July 19

J. Tashima finds that the date defendant's offense of being found in the United States after deportation commenced was the date he reentered the United States, not the date he was caught. Because defendant reentered the country illegally, the offense was a continuing offense, and the "found in" language was only intended to avoid illegal aliens escaping prosecution by hiding from authorities until the statute ran out. Reversed.

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CLASS ACTIONS, CORPORATIONS

In re Merck & Co., July 19

Plaintiffs brought a shareholder derivative action based on defendants' alleged concealment of the risks of their Vioxx drug. J. Smith finds that plaintiffs should have been granted leave to amend the complaint because the new information plaintiffs acquired was produced by mutually agreed-upon discovery. The district court must now determine whether amendment would be futile. Reversed.

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RICO

United States v. Ali, July 19

Defendant was convicted of racketeering and fraud charges for schemes he employed as Imam of an Islamic school. J. Scirica finds that the trial court properly allowed a jury to hear evidence of defendant's contact with drug dealers, even though he was not charged with a drug offense, because shaking down drug dealers was part of defendant's racketeering, and the probative value of this evidence outweighed any possible prejudice it could cause. Affirmed.

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CIVIL PROCEDURE

Nara v. Frank, July 17

J. Nygaard finds the Commonwealth of Pennsylvania has failed to meet the requirements of a motion to stay the mandate of the circuit's decision in this case because it has failed to cite any authority to suggest that at least five supreme court justices would disagree with the circuit's analysis and because it has failed to show an "irreparable injury" is likely without a stay. Motion denied.

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FRAUD, EMPLOYMENT

United States v. Hackensack University Medical Center, July 17

Plaintiff filed a qui tam action on behalf of the United States alleging fraudulent billing of Medicare. J. Cowen finds that plaintiff failed to establish that defendants had knowledge that their claims were false or that they were reckless in their disregard for truth. There is also no evidence that plaintiff's employer knew he was engaging in whistle-blowing when it terminated him. Affirmed.

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CIVIL PROCEDURE, CORPORATIONS

In re Teleglobe Communications Corporation, July 17

J. Ambro finds that defendant company, which formerly merged and then separated again from plaintiff company, may assert attorney-client privilege over corporate documents sought by plaintiff, even if they were produced in communication with attorneys that once represented the merged entity. The district court may only compel production of documents that relate to matters of common interest on which the parties were jointly represented by the same attorney. Vacated and remanded.

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GOVERNMENT, SETTLEMENTS, ATTORNEY FEES

Bogart v. King Pharmaceuticals, July 17

Plaintiff brought a qui tam action on behalf of the United States, District of Columbia, and ten states with qui tam legislation, ultimately settling. The nearly 40 states without qui tam legislation also reached settlement agreements with defendants. J. Vanaskie finds plaintiff was not entitled to up to one third of the total of the non qui tam state settlement awards as attorney fees because those awards were separate from each other and in no way constitute a "common fund." The district court further lacked jurisdiction over the awards. Affirmed.

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CIVIL PROCEDURE

Lafferty v. St. Riel, July 13

J. Ambro holds that a suit that is filed in the wrong venue and then transferred is timely filed as long as the original filing date is within the statute of limitations in the new venue. The fact that plaintiff's suit was transferred after the statute of limitations had expired cannot be used to bar his suit. Reversed.

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IMMIGRATION

Henry v. Bureau of Immigration and Customs Enforcement, July 11

J. Yohn finds that petitioner's conviction for firearm possession constitutes an aggravated felony and a crime of violence, and thus was a removable offense because the crime included intent to use the weapon against another person. Affirmed.

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SENTENCING, HABEAS

Vega v. United States, July 11

J. Fisher finds that defendant is not entitled to credit against his federal sentence for a certain period of time he spent incarcerated since that period was already credited against his parole violation sentence. Defendant may, however, be entitled to credit for time during which he had been erroneously released, if in fact the erring sovereign is found to have been acting as an agent of the imprisoning sovereign, and if defendant is not found to have engaged in any illicit activity or attempts to thwart his reincarceration while at liberty. Remanded.

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CRIMINAL PROCEDURE

Hartmann v. Caroll, July 9

J. Roth finds defendant's habeas petition was untimely filed since his prior petition for leniency in no way challenged his conviction or sentence or alleged any legal error. Thus the petition for leniency had no effect on the statute of limitations that governed his habeas petition. Affirmed.

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IMMIGRATION

Briseno-Flores v. Attorney General, July 3
Briseno-Flores v. Attorney General, June 26

[Amended opinion.] J. Jordan finds that petitioner, an illegal immigrant, stopped accruing a continuous physical presence when he committed petty theft, and is thus ineligible for suspension of deportation. Petition denied.

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PUBLIC RECORD

USA v. Wecht, July 2
USA v. Wecht, April 12

[Amended opinion.] J. Fuentes finds that media outlets have standing to challenge the constitutionality of a trial rule that limits public dissemination of information in criminal trials. The rule should be modified to prohibit only speech that would substantially affect the outcome of trials. The records that were unsealed, specifically the personnel records of the investigating FBI agent, were of substantial public concern but were also relevant to defendant's motion to suppress evidence. Defendant failed, however, to show that the trial judge's conduct showed a bias significant enough to be grounds for dismissal.