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IMMIGRATION
Zhang v. Gonzales, July 31
J. Manion finds that Zhang failed to demonstrate
persecution on account of his resistance to China's involuntary
population control policies. Affirmed.
-------------------------------------------
LABOR
Local 15, International Brotherhood of Electrical Workers v. Exelon,
July 31
The union objected to Exelon's implementation of
an Automated Roster Call-Out System used to summon employees who are
not already working to respond to an electrical outage. J. Kanne finds
that the arbitrator properly concluded that the company did not
violate the terms of the parties' collective bargaining agreement by
implementing the automated system.
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IMMIGRATION
Tchemkou v. Gonzales, July 31
J. Ripple finds that the immigration judge and
the Board of Immigration Appeals failed to read the record "as a
whole" when both courts found that the several instances of abuse at
the hands of Cameroonian officials were not united in interest enough
to constitute past persecution.
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CLASS ACTIONS, CIVIL PROCEDURE
Dupuy v. McEwen, July 31
A class of parents challenged a range of
practices by the Illinois child-welfare agency that are claimed to
infringe parental rights protected by the due process clause of the
Fourteenth Amendment. By stipulation, plaintiffs had expressly
released the defendant from all claims "which arose or could have been
raised" in the suit, which was a general release. J. finds that the
district judge's attempted retention of jurisdiction to enforce the
stipulation is the "troublesome part of the last order."
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PLEA, ADMINISTRATIVE LAW
Nunez v. USA, July 31
Nunez claimed that he speaks no English, and
that, because during some consultations with his counsel an
interpreter was not present, he could not understand what counsel told
him and therefore did not comprehend the terms of his plea bargain. J.
Easterbrook finds that assertion inconsistent with assurances given to
the judge, under oath, when entering the plea.
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SEARCH, ADMINISTRATIVE LAW
USA v. Hillingsworth, July 31
J. Flaum finds that the lower court improperly
suppressed evidence of crack cocaine and marijuana found at
defendant's house when school police came to check on the absentee
rate for a young girl.
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IMMIGRATION
Koutcher v. Gonzales, July 30
[Re-released.] The Koutchers sought a stay of
their removal to Ukraine pending review in this court. J. Ripple
denies the motion because the motion does not set forth the
information needed by the court to adjudicate the matter. "The one
page motion does nothing more than make a general request for a stay."
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LABOR
McCoy v. Maytag, July 30
Maytag fired McCoy for failure to comply with the
notice provision of a collective bargaining agreement after McCoy did
not provide a medical update to justify his absence from work after
his leave of absence expired. J. Manion finds that the lower court
properly dismissed his claim that Maytag fired him in retaliation for
filing a workers' compensation claim. Further, his termination did not
breach the collective bargaining agreement.
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IMMIGRATION
Tarraff v. Gonzales, July 30
J. Ripple finds that petitioner could not account
for the inconsistency between his application for asylum and his
testimony at a subsequent hearing that exaggerated the extent of
Hezbollah's attempt to recruit him as a terrorist in Lebanon.
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SEARCH, SEX OFFENDER
USA v. Johnson, July 30
Defendant took and distributed nude photos of the
prepubescent children who he babysat. J. Ripple finds that defendant's
consent to the search of his computer and statements regarding the
contents of the computer were voluntary even though defendant
initially refused to consent. The statements were not involuntary
merely because defendant believed a search of the home where he stayed
would create an undue hardship on the other occupants.
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INSURANCE
Blue Cross Blue Shield of Ill. v. Cruz, July 27
J. Posner finds that Blue Cross cannot bring a
"preemption action" against Cruz to recover money Cruz recovered from
a third party tortfeasor. Blue Cross must start over in state court
and plead preemption as an affirmative defense. "Blue Cross will have
to start over in state court where it can if it wishes plead
preemption, based on the contract, as a defense to Cruz's defensive
invocation of the common fund doctrine." Dismissed for lack of federal
jurisdiction.
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EMPLOYMENT
South v. Illinois EPA, July 27
South claimed that his disability discrimination
charges against his employer and his testimony in the fellow worker's
case resulted directly in the termination of his employment. J. Ripple
finds that South failed to state a prima facie case of retaliation
because in an effort to support his retaliation claim, South merely
points to other employees with the same employment responsibilities
and the same supervisor. The record does not tell whether these other
employees are similarly situated in any other relevant respects.
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SECURITIES
Higginbotham v. Baxter International, July 27
Baxter restated earnings after the company
discovered that a Brazilian subsidiary had overstated revenue with
false sales reports. J. Easterbrook finds that plaintiffs do not
proffer concrete evidence that anyone at Baxter's headquarters in the
United States knew of the shenanigans in Brazil, which means that the
complaint lacks the required strong demonstration of scienter.
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FALSE CLAIMS, GOVERNMENT
Fowler v. Caremark, July 27
Plaintiffs claimed that Caremark improperly
handled returned drugs from government employees. J. Kanne finds that
qui tam plaintiffs failed to show that Caremark automatically either
kept money or continued to bill without providing an appropriate
credit to the government or a replacement prescription to federal
employees.
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SEARCH, PROSECUTORIAL MISCONDUCT
USA v. Villegas, July 27
J. Ripple finds that Villegas had no legitimate
expectation of privacy in the common hallway of a duplex where he
lived. Thus, police did not violate Villegas' Fourth Amendment rights
by entering the common hallway and arresting Mr. Villegas without a
warrant.
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EMPLOYMENT
Lewis v. Chicago Police Department, July 26
A female police officer was denied an assignment
that required her to stay in a hotel room because she did not have
another female officer to stay with her. J. finds that the district
court properly dismissed the Monell claims against the city but
improperly dismissed the supervisor who made the gender based decision
to refuse her the assignment.
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IMMIGRATION
Aung v. Gonzales, July 26
Aung sought asylum based on his political
activities in Burma. J. Kanne finds that Aung is unable to explain the
discrepancies in his testimony, and offered little evidence outside of
his testimony.
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EMPLOYMENT
Dorel Juvenile Group v. DiMartinis, July 26
J. Rovner finds that this appeal, heard one month
after the expected termination of an injunction requested by Dorel
that would have barred an executive's use of information at a new job
that was obtained at a former job, is moot.
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PRISONERS RIGHTS
O'Brien v. Indiana Department of Corrections, July 26
J. Kanne finds that the lower court properly
found that O'Brien, a former corrections officer at a juvenile
facility, waited too long to add another defendant to his claims that
officers were deliberately indifferent to his situation when two
inmates attacked and beat him.
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SEX OFFENDER
USA v. Burt, July 26
The government established that photographs of
young boys taken by Burt were the "holy grail" among an online
community of child pornography traders and admitted pedophiles. J.
Kanne finds that the evidence used to convict defendant was prior
inconsistent statements not subject to the bar on the admission of
hearsay evidence. Also, the lower court properly admitted chat room
discussions between defendant and other pedophiles. Affirmed.
-------------------------------------------
LABOR
Roadway Express v. Department of Labor Administrative Review Board,
July 25
A worker claimed that he was fired in retaliation
for his support of his co-worker in the grievance hearing and that
this activity was protected under the Surface Transportation
Assistance Act. When Roadway refused to comply with discovery orders
in the Department of Labor proceedings, the administrative law judge
sanctioned the company by refusing to allow the company to present
evidence of his driving record to show he was fired for a poor driving
record and not in retaliation. J. Wood finds that the administrative
law judge erroneously disallowed Roadway's public-safety argument
against the reinstatement remedy.
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RICO
Jennings v. Auto Meter Products, July 25
Jennings designed an after market dashboard
bezel, a molded shape that fits over an automobile's instrument panel,
and claimed that defendants fraudulently misled the patent examiner
into believing that Jennings was not in fact the inventor of the
bezel. J. Wood finds that the remedies Jennings is entitled to do not
include a private right of action under RICO, which was never intended
to apply to such brief, closed-ended instances of fraud, where there
is only one identifiable victim, and that victim suffered one
articulable injury.
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INEFFECTIVE ASSISTANCE
Julian v. Bartley, July 25
J. Rovner finds that the state court improperly
determined that defense counsel did not provide ineffective assistance
of counsel during plea negotiations when that counsel misinterpreted
the Supreme Court decision in Apprendi v. New Jersey, 530 U.S. 466
(2000) and informed Julian that the maximum sentence he could receive
would be thirty, rather than sixty years in prison.
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FRAUD, SENTENCING
USA v. Brownell, July 25
J. Wood finds that the lower court properly
sentenced defendant as a leader or organizer of a fraud scheme but
improperly enhanced defendant's sentence based on an erroneous
intended loss calculation.
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JURY, TORT
Alcala v. Emhart Industries, July 25
Alcala sued Emhart Industries for negligence
after he injured his hand in a machine manufactured by Emhart's
predecessor. J. Manion finds that the district court properly handled
voir dire when the court refused to ask the jury pool various
questions and properly rejected Alcala's proposed jury instructions.
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CIVIL PROCEDURE, SECURITIES
Gradel v. Piranha Capital, July 25
Investors in a hedge fund called Piranha Capital
sued Piranha in an Illinois state court and shortly thereafter the
Commodities Futures Trading Commission sued two of Piranha's advisers
in California. J. Posner finds that a court in Chicago can issue an
order that will affect funds held by a court in California because the
receiver intervened in the Chicago suit and by doing so submitted
himself to the jurisdiction of the court in which that suit was
pending.
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DISABILITY DISCRIMINATION, HEALTHCARE
Bertrand v. Maram, July 24
In a suit over the right to receive funding for
developmentally disabled adults, J. Easterbrook finds that the
district court mishandled the certification of class claims.
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CRIMINAL PROCEDURE
USA v. Luepke, July 24
J. Ripple finds that the district court failed to
afford defendant a meaningful opportunity to address the court prior
to the imposition of sentence, and thus the sentence imposed must be
vacated and remanded the for a new sentencing proceeding.
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EMPLOYMENT, CONSTITUTION
Matthews v. Milwaukee Area Local Postal Workers Union, July 23
Matthews sued his union for mishandling claims
against the Post Office, which suspended him under a zero tolerance
policy for his threats of violence at work. J. Bauer finds that the
district court correctly found that the union's handling of an
emergency placement grievance was not arbitrary, discriminatory, or in
bad faith. Accordingly, a reasonable factfinder could not find that
the union breached its duty to fairly represent Matthews.
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ATTORNEY FEES, MEDICAID
Park Manor v. US Department of Health and Human Services, July 23
Park Manor, a nursing home, sought to overturn
the denial of an award of attorney fees under two provisions of the
Equal Access to Justice Act after the dismissal of charges by the
Centers for Medicare & Medicaid Services, which makes sure that
nursing homes that receive reimbursement under the Medicare program
comply with various Department rules that protect the residents of
nursing homes. J. Posner finds that the Health and Human Services
Departmental Appeals Board correctly found that all but one of the
charges levied were substantially justified by the detailed report of
Wisconsin's health agency. Affirmed.
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CIVIL PROCEDURE, IMMIGRATION
Koutcher v. Gonzales, July 23
[On motion for stay of removal.] The Koutchers
sought a stay of their removal to Ukraine pending review in this
court. J. Ripple denies the motion because the motion does not set
forth the information needed by the court to adjudicate the matter.
"The one page motion does nothing more than make a general request for
a stay."
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LABOR
Reyes v. Remington Hybrid Seed Company, July 23
Zarate, who recruited members of the Reyes and
Garcia families to detassel and rogue corn plants in fields under the
control of Remington Hybrid Seed Company, lured the workers with
promises of housing and 70 hours per week of work. When Zarate failed
to pay and provided sub-standard housing, the families sought to
recover from Zarate and Remington Hybrid Seed under the Fair Labor
Standards Act and the Migrant and Seasonal Agricultural Workers
Protection Act. J. Easterbrook finds that the district court
improperly dismissed all the workers claims and "what remains for
decision are the damages for any violations of the FLSA (some workers
may have been fully paid; the shortfall for others must be calculated)
and further proceedings to determine whether the pesticide protocols
and sanitation were deficient?and, if so, the damages to which
plaintiffs are entitled under these and the other portions of the AWPA
that we have identified as requiring additional inquiry."
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SENTENCING, CONSTITUTION
USA v. Gordon, July 23
Gordon immediately cooperated with FBI
investigators who told Gordon that they had discovered his
embezzlement scheme, but later challenged the court's amount of loss
calculation. J. Rovner would be troubled if the lower court had a per
se rule of denying acceptance of responsibility sentence reductions
any time a defendant challenges a loss amount, but Gordon's challenge
to the loss calculation was frivolous and thus precludes a sentence
reduction based on acceptance of responsibility.
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EVIDENCE, CONSTITUTION
USA v. Goodwin, July 23
Defendants conducted a multi-state drug
distribution conspiracy that trafficked drugs from Chicago for sale in
southern Indiana. J. Manion finds that the lower court properly
rejected appellant's request for a new trial, based on a recantation
letter from the primary confidential informant who testified against
defendant, because of the "coercive and dubious circumstances" under
which the informant felt threatened to sign the letter when an inmate
put a piece of paper in front of him and said "sign here."
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MARITIME
St. Paul Travelers Companies v. Corn Island Shipyard, July 20
[Amended opinion.] St. Paul sought a declaration
as to the insurer's obligation to cover claims of a Corn Island
Shipyard employee under an insurance policy St. Paul had issued to
Corn Island. J. Manion finds that Corn Island failed to provide
adequate notice of the claim to the insurer. Affirmed.
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DRUG OFFENDER, EVIDENCE
USA v. McMahan, July 20
Defendants ran drug deals out of a clothing store
called 600 Collections and were pretty much a full service operation,
selling heroin, cocaine, cocaine base, and marijuana from 1988 to
2004. Defendants' failure to object, to the admission of expert
testimony about the process used to obtain wiretaps, subjected their
challenge to the admission of that evidence to plain error review. J.
Evans finds that the government's motion in limine, which sought to
preclude testimony regarding the legality of the wiretap, does not
preserve for the defense an objection to testimony regarding the
process for obtaining a wiretap order.
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DRUG OFFENDER
USA v. Jumah, July 20
[Amended opinion.] Jumah was convicted of knowing
possession of a listed chemical, knowing, or having reasonable cause
to believe, that the chemical would be used to manufacture a
controlled substance, but claimed he acted under public authority
since he was a confidential informant. J. Ripple finds that the jury
was properly instructed as to his affirmative defense that he acted on
authority from the government. Reversed.
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SEARCH, DRUG OFFENDER, SENTENCING
USA v. Otero, July 19
Otero and Woods were convicted for conspiracy to
distribute more than 500 grams of cocaine. J. Bauer disagrees with
Otero that Woods' pre- and post-arrest statements were internally
inconsistent such that a warrant should not have issued for the search
of his home. However, given the statutory maximum, the district court
erroneously sentenced Otero to a term that exceeded twenty years on
count three.
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FIREARMS, SENTENCING
USA v. Vitrano, July 19
Defendant was sentenced as a felon in possession
after he was caught with a hunting rifle on a duck hunting trip. The
government produced evidence for the first time at his second
sentencing hearing showing that "Vitrano was exceptionally violent
toward people, not just ducks." J. Wood finds that in light of
Vitrano's status as an armed career criminal, his new guideline range
on remand was 235-293 months and the new statutory maximum to which he
was exposed was life in prison. The lower court properly sentenced
Vitrano on remand to 360 months.
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CIVIL RIGHTS
Steidl v. City of Paris, July 18
Steidl spent more than seventeen years in jail
for a double homicide that he insists he did not commit. J. Wood finds
that the Brady line of cases has clearly established defendant's right
to be informed about exculpatory evidence throughout the proceedings,
including appeals and authorized post-conviction procedures, when that
exculpatory evidence was known to the state at the time of the
original trial. Steidl may thus proceed under his first theory that
the state withheld evidence late in the trial. However, Illinois State
Police Officials were entitled to qualified immunity on his
access-to-courts theory.
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WORKERS COMPENSATION
St. Paul Travelers v. Corn Island Shipyard, July 18
St. Paul sought a declaration as to the insurer's
obligation to cover claims of a Corn Island Shipyard employee under an
insurance policy St. Paul had issued to Corn Island. J. Manion finds
that Corn Island failed to provide adequate notice of the claim to the
insurer. Affirmed.
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EMPLOYMENT
Salas v. Wisconsin DOC, July 18
Salas, a senior probation and parole agent, was
fired the falsification documents and his failure to supervise an
offender. J. Flaum finds that Salas could not bring his Title VII
claims because he did not timely file them with the Equal Employment
Opportunity Commission and no reasonable jury could find that the
Department of Corrections violated the Constitution when the agency
fired him.
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EMPLOYMENT, ATTORNEY FEES
Morales v. Jones, July 17
Officers Kolatski and Morales were reassigned to
street patrol duties after informing an Assistant District Attorney
about allegations that Police Chief Arthur Jones and Deputy Chief
Monica Ray had harbored the Deputy Chief's brother, a heroin addict
wanted on felony warrants. J. Flaum finds that Kolatski acted pursuant
to his official duties and thus defendants were entitled to immunity
from his First Amendment retaliation claim. However, Officer Morales
presented evidence of both protected speech made pursuant to his
official duties and unprotected speech made outside the scope of those
duties and the jury must sort out those claims. Remanded in part.
-------------------------------------------
EMPLOYMENT
Bernier v. Morningstar, July 17
Bernier thought that he was the victim of
employee-on-employee, same sex harassment at the workplace of
Morningstar, an investment research firm. However, instead of
following Morningstar's established harassment policy, Bernier sent
the harassing employee an anonymous email for which Bernier was fired.
J. Wood finds that no basis for employer liability on these facts or
any evidence to suggest retaliation.
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SOCIAL SECURITY, ATTORNEY FEES
Sosebee v. Astrue, July 17
J. Wood finds that when the lower court denied
Sosebee's Equal Access to Justice Act application for attorney fees,
the district court either applied an impermissibly high standard of
proof or it improperly exalted form over substance to determine that
Sosebee's application for attorney fees required greater proof that
his net worth did not exceed the requisite $2 million. "Knowing
Sosebee's history of more than a decade of disability, his inability
to afford medical care, and his marginal ability to care for himself
and his family, the district court should have found that Sosebee
satisfied the net worth requirement."
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BANKRUPTCY, ATTORNEY FEES
Fehribach v. Ernst & Young, July 17
The trustee of Taurus Foods, a small company
engaged in the distribution of frozen meats and other foods and that
was forced into Chapter 7 bankruptcy by three of its creditors, sued
the company's auditor, Ernst & Young, for negligence and breach of
contract for the failure to include a going-concern qualification in
an audit report. J. Posner finds that Ernst & Young could not have
been expected to know more about trends in the frozen-meat
distribution business than Taurus, which had been in that business for
more than 20 years. Thus the trustee's claim fails.
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COMPETENCE, JURY
USA v. Ewing, July 17
Ewing, a paranoid schizophrenic plagued by
delusions that society is engaged in a conspiracy to read his
thoughts, became convinced that a state court judge was part of that
conspiracy and attacked the judge with a Molotov cocktail. J. Sykes
finds that the district court provided the jury with a proper
instruction on the meaning of wrongfulness for purpose of the insanity
defense.
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EMPLOYMENT
Huff v. Sheahan, July 16
Testimony at trial suggested that supervisors of
plaintiff used the terms "nigger" and "bitch" to refer to plaintiff in
the workplace, along with English and Spanish variants and
combinations, and separated black co-workers because "being black, he
thought that they would be lazy together and they wouldn't do any
work." J. Ripple finds that the jury instructions improperly allowed
the Sheriff to assert an affirmative defense without first addressing
the issue of whether there had been a tangible employment action.
Reversed in part.
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CONSPIRACY
USA v. Bustamante, July 16
Defendants are members of the Latin Kings street
gang who operated a drug conspiracy in Aurora, Illinois. J. Flaum
finds that the government offered sufficient evidence to prove that
Liscano, Estremera, and Pena engaged in a conspiracy to distribute
drugs. Corral fronted each of them large quantities of drugs on
multiple occasions, so Corral's investment return depended on the
defendants' success in reselling the drugs. The government offered
little evidence of prolonged cooperation or standardized dealings, but
that type of evidence, though relevant, is not necessary to sustain a
conviction.
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CONSPIRACY, ROBBERY
USA v. Griffin, July 16
After a string of robberies, defendants were
convicted of robbery, conspiracy to commit robbery, and using,
possessing, and brandishing or discharging a firearm. J. Williams
finds that although Lomax only participated in one robbery, the
participation along with his travel to scout other targets and
willingness to participate in additional robberies supported his
conspiracy conviction.
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DRUG OFFENDER
USA v. Jumah, July 16
Jumah was convicted of knowing possession of a
listed chemical, knowing, or having reasonable cause to believe, that
the chemical would be used to manufacture a controlled substance, but
claimed he acted under public authority since he was a confidential
informant. J. Ripple finds that the jury was properly instructed as to
his affirmative defense that he acted on authority from the
government. Reversed.
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CONTRACT, HEALTHCARE
Association Benefit Services v. Caremark Rx, July 13
Plaintiff, a pharmacy benefits manager, claimed
that Caremark Rx committed fraud and breached a contract for plaintiff
to manage defendants' pharmacy benefits. J. Ripple finds that the
lower court correctly held that no reasonable jury could conclude that
a letter from early in negotiations was an enforceable contract
because the letter lacked essential, definite and certain terms.
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TORT, HEALTHCARE
Fagocki v. Algonquin/ Lake-in-the-Hills Fire Protection District, July
13
J. Posner finds that paramedics and a doctor did
everything possible to attempt to save a 300 pound woman from
anaphylactic shock after she ate a peanut in a Chinese restaurant,
went into a coma, and died two years later from permanent brain damage
caused because paramedics could not intubate her. "Affirming the
judgment on the ground that compliance with the Standing Medical
Orders is mandatory would send a signal to paramedics that they have a
safe harbor from lawsuits if they comply with the SMOs to the letter,
whatever the consequences for the patient."
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SOCIAL SECURITY
Murphy v. Barnhart, July 13
J. Williams finds that a psychologist selected by
the administrative law judge testified that he would need school
documents to come to a conclusion regarding a student's disability,
yet the administrative law judge did not contact the psychologist
after receiving those documents. Remanded.
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CIVIL PROCEDURE, SECURITIES
In re Mutual Fund Market-Timing Litigation, July 13
In consolidated cases, the circuit finds that,
because one case has been voluntarily dismissed, the other two cases
must be dismissed for lack of jurisdiction. Plaintiffs' motions to
remand to state court did not need to anticipate and refute
defendants' potential response to the problems the motions identified.
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ATTORNEYS
USA v. Price, July 13
[Reposted by 7th Circuit.] Defendant sought
appointed counsel to file for certiorari with the US Supreme Court
regarding his ineffective assistance claims. J. Ripple finds that,
although Price does not have a constitutional right to counsel while
seeking certiorari, he does have a statutory right based on the
Criminal Justice Act. Counsel appointed.
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CRIMINAL PROCEDURE
Teas v. Endicott, July 13
Teas was convicted of arson and possessing a
Molotov cocktail. J. Easterbrook finds that the judgment became
"final" as soon as the time for direct appeal expired in 2002, when
the state's appellate court declined to allow any further extension.
Teas had one year from "the date on which the judgment became final by
the conclusion of direct review or the expiration of the time for
seeking such review," but took more than four years.
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CIVIL RIGHTS
Wagner v. Washington County, July 12
Wagner claimed that his Fourth Amendment rights
were violated when sheriff's deputies in Washington County, Wisconsin,
arrested him during a town-hall meeting on the belief that his
presence violated a protective order awarded to a husband and wife who
were also in attendance. Per curiam, the circuit finds that although
the district court incorrectly granted summary judgment for the
deputies upon the conclusion that the deputies had probable cause to
arrest Wagner, the officers were entitled to immunity.
-------------------------------------------
ERISA
Central States, Southeast and Southwest Areas Pension Fund v. Pioneer
Ranch, July 12
Central States sought to impose withdrawal
liability on the owners of a vacation ranch when the owners' other
trucking company became insolvent and was assessed substantial
withdrawal liability. J. Flaum finds that Pioneer Ranch was
responsible for the trucking company's liability under the
Multiemployer Pension Plan Amendments Act.
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DEBT COLLECTION
Barnes v. Advanced Call Center Technologies, July 12
A debt collection agency, hired by MBNA America
Bank to collect past-due credit card payments, sent standard form
dunning letters to plaintiffs, each of whom were delinquent on
required minimum monthly payments against their respective credit card
account balances. J. Evans finds that absent some particularly
ambiguous language in the rest of the letter, the circuit cannot see
how an unsophisticated consumer would interpret the tear-off to
indicate that anything other than the "current amount due" was "the
amount of the debt."
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SENTENCING
USA v. Liddell, July 12
J. Manion finds that the district court should
have calculated Liddell's guideline ranges separately for each count
of the federal indictment, thus the presence of the pre-state
imprisonment charge should not have prohibited a district court
classification of Liddell as a career offender.
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CIVIL RIGHTS
Elkhatib v. Dunkin Donuts, July 10
Plaintiff claimed that Dunkin Donuts refused to
renew his franchises because he would not sell breakfast sandwiches
that contained pork. J. Rovner finds that a purportedly anti-Arab
remark made by a district supervisor of franchisor Dunkin Donuts
failed to provide direct evidence that the decision regarding the
renewal and relocation of plaintiff's franchises was based on his Arab
race. However, plaintiff showed that similarly situated francishees
were treated differently. Reversed.
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FRAUD
USA v. Ratliff-White, July 10
Ratliff-White, a veteran with disabling
post-traumatic stress disorder, established a fictitious healthcare
company to defraud the government. J. Williams rejects defendant's
claim that there was a fatal variance between the crimes charged and
proven at trial. Although count one pinpointed one step in the July
payment process, and the proof established another, the variance was
harmless.
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SEARCH, SENTENCING
USA v. Riley, July 10
Police observed and then followed a car that had
been backed into a space at a restaurant adjacent to a bank with a
man, who sat in the driver's seat of the car with the engine running,
focused on the entrance to the bank. J. Ripple finds that police had
reasonable suspicion to follow and then stop defendant based on the
circumstances. Further, the lower court properly counted the thirteen
fraudulent checks found in defendant's car toward the loss calculation
even though he had only cashed two.
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TRADEMARK
Central Manufacturing v. Brett Brothers Sports International, July 9
A future "trademark litigation Hall of Fame"
inductee sent a cease and desist letter to a baseball bat
manufacturing company owned by George Brett in an attempt to stop the
company's use of the term "Stealth" on its baseball bats. J. Evans
finds that plaintiffs have failed completely to support their claim
that they actually used the "Stealth" mark in connection with an
established, presently existing, and ongoing business prior to Brett
Bros. use of the word "Stealth" on baseball bats in 1999.
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CLASS ACTIONS, ATTORNEY FEES
Karaker v. Rent-A-Center, July 9
Rent-A-Center used the APT Management Test, which
included the Minnesota Multiphasic Personality Inventory, to make
promotions. J. Evans finds that a class of plaintiffs that sued the
company under the Americans with Disabilities Act was entitled to
attorney fees. Remanded for a determination of the reasonableness of
the fee request.
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TORT, EVIDENCE
Ervin v. Johnson & Johnson, July 9
Ervin, who brought a products liability action
against Johnson & Johnson and Centocor, claimed that his prescription
medication Remicade caused a blood clot that required the partial
amputation of his leg. J. Bauer finds that plaintiff's expert had no
reliable basis for his expert opinion. He could not point to any
epidemiological data supporting his opinion, and he was not able to
articulate any scientifically physiological explanation as to how
Remicade would cause arterial thrombosis.
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IMMIGRATION
Tadesse v. Gonzales, July 9
Tadesse claimed she was raped by Ethiopian
government officials then deported as an Eritrean spy based on her
mixed Ethiopian-Eritrean ancestry. J. Williams finds that the
immigration judge never gave Tadesse an opportunity to rebut the
government's expert testimony regarding a deportation order that court
found to be fraudulent, and wrongfully disregarded Tadesse's
corroborating evidence. "Moreover, the IJ's treatment of the case
demonstrates a troubling disregard for the situation in Ethiopia at
the time of Tadesse's ordeal.
-------------------------------------------
CONTRACT
EC Styberg v. Eaton Corp., July 9
E.C. Styberg Engineering claimed that sued Eaton
breached a contract to buy 13,000 transmission components from Styberg.
J. Flaum finds that the district court correctly found that no
contract existed and appropriately entered judgment for Eaton.
-------------------------------------------
FRAUD, SENTENCING
USA v. Sloan, July 9
Defendant created the Christian Freedom
Foundation, which offered members free electricity for life for a
membership fee of $500. J. Bauer finds that the evidence supported
convictions for mail fraud and wire fraud and the failure to excuse a
juror did not deny Sloan the right to an impartial jury. Also, the
circuit rejects Sloan's claim that the district court erroneously
calculated the loss amount and improperly applied enhancements to his
sentence for more than minimal planning and mass-marketing fraud.
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DRUG OFFENDER
USA v. Hi Bek, July 6
Dr. Bek was convicted by a jury on twenty-six
counts of conspiracy to distribute controlled substances and health
care fraud after police investigated his business because a line of
people appeared outside his office every morning. J. Williams finds
that the evidence supported all but one conviction and Bek's counsel
was not vindictively prosecuted. Further, his medical records were not
privileged under the Health Insurance Portability and Accountability
Act.
-------------------------------------------
SEX OFFENDER
USA v. Carani, July 6
The circuit rejects Carani's claim that any child
pornography videos he may have downloaded to his computer were
downloaded solely through inadvertence. Words indicating that the
files contained child pornography were, quite literally, right in
front of his face. Thousands upon thousands of references to child
pornography were found on Carani's computer; and evidence, such as the
hack used to boost his Kazaa file sharing participation level,
suggests that Carani was not so bungling a computer user as he
suggested.
-------------------------------------------
EMPLOYMENT
Hossack v. Floor Covering Associates of Joliet, July 5
Hossack was fired after she had an extramarital
affair with a fellow employee but the fellow employee was not fired.
J. Coffey finds that no reasonable jury could have concluded that
Hossack was a victim of intentional sex discrimination. Thus the lower
court properly threw out the jury's verdict in her favor.
------------------------------
IMMIGRATION
Fedosseeva v. Gonzales, July 5
J. Flaum rejects petitioner's claim that she is
stateless because in 1993 she used her Soviet passport to depart
Latvia for the United States without acquiring citizenship in either
Latvia or Russia. The immigration judge found her not credible and
correctly held that she failed to establish past persecution or a
well-founded fear of future persecution.
------------------------------
PROPERTY
New West v. Joliet, July 5
Joliet believed that Evergreen Terrace, a
low-income apartment complex built in 1965, was so rundown that the
apartment was a public nuisance, and so the city filed suit in state
court to condemn the property and lobbied HUD not to renew federal
subsidies. The district court dismissed the property owner's federal
suit because the court felt the owner was attempting to litigate the
tenants' rights. J. Easterbrook finds that the "complaint cannot be
dispatched so easily." The district court's first order of business on
remand should be to resolve the condemnation action. If Joliet
prevails, that would knock out many of the theories on which New West
relies in this suit and may put limits on the recovery available for
the rest.
------------------------------
INEFFECTIVE ASSISTANCE, SEX OFFENDER
Amerson v. Farrey, July 5
Defendant, who raped his girlfriend's nine year
old daughter, sought to introduce evidence of a sexual assault
suffered by the young girl to explain her prior injuries and provide
an alternate explanation for the extent of her sexual knowledge. J.
Kanne finds that defense counsel was not ineffective for the failure
to procure the testimony of the victim's younger brother during the
trial and the failure to investigate the prior assault.
------------------------------
PRISONER RIGHTS
Williams v. Liefer, July 5
Williams sued several employees of the Illinois
Department of Corrections on claims that they were deliberately
indifferent to his medical needs. J. Fluam finds that the jury
properly awarded defendant damages after the correctional officers
refused his request for medical assistance until he passed out from
hypertension and fell backward down fifteen stairs.
------------------------------
ATTORNEYS
Rodriguez v. Chandler, July 5
A state judge erroneously disqualified one of the
two lawyers representing Rodriguez, who was convicted of murder and
sentenced to 29 years. J. Easterbrook finds that the lower court must
determine whether the error was harmless or whether the error changed
the results of the trial.
------------------------------
CIVIL PROCEDURE
Holmstrom v. Peterson, July 3
Holmstrom, a citizen of New Jersey, brought a
shareholder derivative action in Illinois state court against officers
and directors of OfficeMax. The suit was removed to federal court by
one of those directors, Peterson, an Ohio citizen, based on diversity
of citizenship. Holmstrom then moved to remand the case to state
court. J. Ripple finds that Peterson's challenge to the remand order
must be dismissed for lack of jurisdiction.
----------------------------------
LABOR
Trustees of the Chicago Painters and Decorators Pension v. Royal
International Drywall and Decorating, July 3
The Trustees claimed that Royal violated
collective bargaining agreements by failing to compensate the Funds
for each hour the covered employees worked. The district court found
that Royal owed contributions and awarded damages. J. Manion rejects
Royal's challenges to the admission of expert testimony, the district
court's factual findings, and the amount of liquidated damages
awarded.
----------------------------------
TAX
Racine v. Commissioner of Internal Revenue, July 3
Non-cash compensation, such as shares of stock,
is taxable when the transfer to the recipient occurs, but the grant of
an option to purchase stock is not itself a transfer, which does not
occur until the option is exercised. J. Easterbrook finds that the
"transfer" may not be postponed after the option's exercise on a
theory that borrowing to finance the transaction amounts to a second
option that replaces the first.
----------------------------------
BANKRUPTCY
In re Craig Wright, July 3
J. Easterbrook finds that by surrendering a car,
debtors gave their creditor the full market value of the collateral.
Any shortfall must be treated as an unsecured debt. The shortfall need
not be paid in full, any more than the Wrights' other unsecured debts,
but it cannot be written off "in toto" while other unsecured creditors
are paid some fraction of their entitlements.
----------------------------------
ATTORNEYS
USA v. Price, July 3
Defendant sought appointed counsel to file for
certiorari wit the US Supreme Court regarding his ineffective
assistance claims. J. Ripple finds that, although Price does not have
a constitutional right to counsel while seeking certiorari, he does
have a statutory right based on the Criminal Justice Act. Counsel
appointed.
----------------------------------
SEX OFFENDER, SENTENCING
USA v. Veasey, July 3
Defendant claimed that his primary purpose of a
trip to Decatur was to meet with two minor females to have sex, not to
take pictures, despite the fact that when he arrived to meet the
girls, only to discover they were police, he possessed a Polaroid, a
digital camera and a camcorder. J. Rovner finds that defendant's
sentence was properly enhanced for interstate travel to engage in
prohibited sexual conduct with a minor for the purpose of taking
photographs. "Nowhere does the guideline require that producing a
visual depiction be the only purpose of the defendant in committing
the offense."
----------------------------------
MIRANDA
USA v. Murdock, July 3
Murdock was caught with marijuana and crack
cocaine in his pocket after fleeing from police, and later admitted
that the drugs, as well as a gun police found in a nearby garbage can,
belonged to him. J. Flaum finds that Murdock was given proper Miranda
warnings before he confessed and the circuit rejects his attempt to
proceed under a different suppression theory. Affirmed.
----------------------------------
PRIVILEGE, TAX
USA v. BDO Seidman, July 2
The IRS sought to enforce administrative
summonses against BDO Seidman, an accounting firm that failed to
disclose potentially abusive tax shelters that the firm promoted. J.
Ripple finds that the communication of a memorandum to an outside
attorney was within the common interest doctrine was not clearly
erroneous. Further, the privileged status of communications falling
within the common interest doctrine cannot be waived without the
consent of all of the parties, and thus Jenkens & Gilchrist's
subsequent voluntary disclosure of the memorandum in response to an
IRS subpoena did not waive BDO's claim of privilege.
-------------------------------------------
ARBITRATION, LABOR
International Brotherhood of Electrical Workers v. IL Bell Telephone,
July 2
J. Kanne finds that the district court properly
compelled the arbitration of a dispute between a union and IL Bell
Telephone over the implementation of new consumer performance
management guidelines. The Union alleged that the company did not
bargain in good faith prior to implementation of the guidelines and
submitted employee statements that unilateral implementation of the
performance guidelines threatens the continued relationship between
the parties. Given the presumption in favor of arbitrability, the
Union has met its burden and the recognition clause is an adequate
basis for arbitration.
-------------------------------------------
OBSTRUCTION
USA v. Rand, July 2
USA v. Rand, April 6
[Rehearing denied.] Defendant helped a friend
find a homeless man that they killed in order to make the government
believe the friend had died and thus could not stand trial. J. Evans
finds that defendant was properly charged for killing another person,
with intent to prevent the communication by "any person" to a law
enforcement officer or judge of the US of information relating to the
commission or possible commission of a Federal offense or a violation
of conditions of release pending judicial proceedings because
defendant helped to prevent the friend's appearance at the friend's
trial. |
