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Federal New Releases

New Releases
from Federal Courts

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Consumer law -- Truth in Lending Act -- Disclosure violations -- Trustee for mortgage loan trust to which home mortgagor's loan was assigned moved to dismiss mortgagor's action seeking to hold trustee vicariously liable for alleged post-assignment disclosure violation under Truth in Lending Act when loan servicer, in response to mortgagor's request to identify owner or master servicer for mortgagor's loan, failed to provide owner's contact information or identify itself as master servicer -- Notice and cure provision of home mortgage, which served as prerequisite to mortgagor or original mortgagee bringing judicial action for breach of mortgage, could be invoked by trustee, as assignee of mortgage loan -- Benefit of notice and cure provision runs to trustee as assignee where mortgage clearly anticipated original mortgagee could sell the mortgage loan and stated that covenants and agreements of mortgage would bind and benefit the successors and assigns of original mortgagee -- Notice and cure provision could be invoked by trustee, as assignee of mortgage loan, even though complaint alleged that loan servicer, which was not a party to mortgage or to lawsuit, committed the post-assignment disclosure violation under TILA, where mortgagor was seeking to hold trustee vicariously liable for actions of loan servicer as agent for trustee -- Mortgagor's vicarious liability claim against trustee for TILA disclosure violation was not directly related to home mortgage, and thus, trustee could not invoke notice and cure provision of mortgage, which was applicable if plaintiff had alleged that trustee breached a duty “owed by reason of” the mortgage -- While loan servicer was not obligated to use the magical legal words “master servicer” to comply with TILA disclosure provision, servicer, nevertheless, violated disclosure provision when, in response to a mortgagor's request to identify the owner or master servicer for the obligation, it did not disclose in layman's terms that it is indeed the master servicer -- Trustee could be vicariously liable for servicer's post-assignment TILA disclosure violation -- An assignee of a consumer credit transaction secured by real estate can be vicariously liable for its servicer's post-assignment violation of TILA disclosure provisions requiring a loan servicer, in response to a consumer obligor's request, to identify the owner or master servicer for the obligation -- New ground for summary judgment, that Section 1641(e) applies to limit trustee's potential liability, raised for first time in reply memorandum will not be considered
VIEW OPINION

Torts -- Fraud -- Defalcation by fiduciary -- Surety in action against indemnitors for fraud and defalcation while acting in their fiduciary capacity as trustee of contract funds received by contractor on bonded project, moved for expedited entry of order enforcing preliminary injunction requiring indemnitors to post collateral security with surety -- Order freezing indemnitors' bank accounts and requiring bank to turn over funds in accounts to surety, and converting injunction into partial money judgment in surety's favor was warranted, where indemnitors transferred funds to undisclosed accounts, used trust funds to satisfy contractor's post-termination general office overhead and expenses and failed to present any credible evidence that any portion of contract funds satisfied claims of unpaid subcontractors and suppliers on bonded project -- Orders freezing assets and prohibiting transfers from bank accounts are routine methods of enforcing injunctive relief, even if they are directed to third parties in possession of funds -- Court could draw inferences from indemnitors' failure to appear and provide relevant testimony at hearing to show cause why defendants should not be held in contempt or sanctioned for failure to comply with terms of injunctive order -- Indemnity agreement, in which indemnitors agreed to “hold all money and all other proceeds of the Obligation, however received, in trust for the benefit of Surety,” created “trust” in contract funds received by contractor and established corresponding fiduciary duty owed to surety by indemnitors -- Indemnitors committed a defalcation of trust funds received in connection with bonded project by making payments other than for labor and materials specifically attributable to the project where indemnitors acted “intentionally” with knowledge that their actions were improper in carrying out their fiduciary duties in handling of trust funds for benefit of surety, and acted “recklessly,” with conscious disregard or being willfully blind to a substantial and unjustifiable risk that their conduct would violate fiduciary duties in handling of trust funds -- Indemnitors' use of contract funds to make payments other than for labor and materials incorporated into bonded project constituted fraud, where indemnitors represented to surety that funds were available to satisfy unpaid subcontractor and supplier, thereby misleading surety into believing that funds were available and taking no action to protect its rights, and indemnitors instead dissipated, converted, and otherwise transferred funds -- Indemnitors' use of contract funds received by contractor constituted embezzlement where indemnitors had agreed under general indemnity agreement to hold funds in trust for surety's benefit -- Court should freely allow an amendment to conform the pleadings to available evidence when doing so will aid in presenting merits and objecting party fails to satisfy court that evidence would prejudice that party's action or defense on merits
VIEW OPINION

Criminal law -- Habeas corpus -- Murder -- Death penalty -- Counsel -- Ineffectiveness -- No error in denying habeas petition in its entirety where state habeas court's rejection of defendant's ineffectiveness-assistance claims was not an unreasonable application of Strickland and defendant's Fifth Amendment claim regarding prosecutor's comments during his closing argument is unavailing -- State habeas court did not unreasonably determine that defendant suffered no prejudice from counsel's failure to discover mitigating background and mental health evidence, especially in light of substantial aggravating circumstances that would also have been revealed in investigation and presentation of the “new” mitigating evidence -- State supreme court's conclusion that prosecutor's closing argument did not violate defendant's Fifth Amendment privilege against self-incrimination was not an unreasonable application of Griffin v. California or any other Supreme Court precedent, because prosecutor's closing argument was not a commentary on defendant's failure to testify at trial -- AEDPA deference -- State habeas court's order is entitled to AEDPA deference even it was adopted verbatim from State's proposed order, because defendant's claims were adjudicated on the merits, and defendant received full and fair hearing on all of his habeas claims -- AEDPA mandates deferential review of any claim that a state court “adjudicated on the merits” and does not impose any specific requirements on how a state court should announce its decision
VIEW OPINION

Maritime law -- Maintenance and cure -- Jones Act -- Jurisdiction -- Corporations -- Dual-listed company -- District court properly found that sole defendant, a structure that joins separate corporations in a common economic enterprise while allowing the corporations to maintain their individual legal identities, was not suable under Florida laws in instant class action brought by injured sea workers who worked aboard cruise lines and believed that their contracts impermissibly limited their compensation -- Dual-listed company was not suable as a corporation, despite its corporate-like qualities -- Company not estopped from denying that it was a corporation by fact that it has publicly promoted itself as a single entity -- DLC does not equate to a joint venture; moreover, joint venture itself is not an entity that is properly subject to suit
VIEW OPINION

Criminal law -- Sentencing -- Federal guidelines -- Reasonableness of sentence -- Concurrent three-year probationary sentences were unreasonable for crimes in which defendant paid over half a million dollars in bribes over a four-year period to high-ranking state official so that his company could continue to receive lucrative government contracts -- Remand for resentencing
VIEW OPINION

Securities fraud -- Banks -- Class actions -- Private action based on series of misrepresentations allegedly made by bank in statements to analysts and on required financial disclosures about value of bank's assets and its financial stability, including manipulation of the way real estate investments were carried on books in order to avoid disclosing significant losses -- Reliance -- Trial judge properly applied established law of circuit in analyzing efficiency of market for bank's stock for purposes of determining whether it was appropriate to invoke Basic Inc. v. Levinson's rebuttable presumption that plaintiffs relied on public misstatements when they bought or sold stock at price set by market -- Discussion of analytical framework for determining market efficiency -- Court rejects suggestion that it adopt analytical framework for analyzing market efficiency set forth in Cammer v. Bloom in lieu of Eleventh Circuit's more flexible approach -- Price impact -- In keeping with intervening Supreme Court holding, district court should have fully considered price impact evidence presented by bank for purpose of undermining plaintiffs' case for market efficiency and rebutting Basic presumption -- Case remanded for limited purpose of allowing district court to analyze price impact evidence -- Typicality -- No error in finding that lead plaintiffs satisfied typicality requirements or in setting start date for class period -- Typicality finding not undermined by fact that one plaintiff benefitted to some extent from alleged fraud by selling some of its shares during class period; plaintiff's post-disclosure stock purchases; plaintiff's purchase of shares late in class period; or plaintiffs' use of investment advisors -- Class period -- End date of class period to be clarified, as end date in certification order did not conform to end date specified by plaintiffs
VIEW OPINION

Civil rights -- Employment discrimination -- Family and Medical Leave Act -- Equal Pay Act -- COBRA -- Action alleging former employer interfered with plaintiff's right to take parental leave by forcing her to work from home immediately after she gave birth; discriminated against her on basis of gender by altering her job title and responsibilities, withholding annual bonus, and terminating her employment; retaliated against her for complaining about gender and race discrimination in workplace; paid her less than male employees doing same work; and failed to provide notice of plaintiff's right to continuation of dental insurance following her termination, in violation of Consolidated Omnibus Budget Reconciliation Act -- No error in entering summary judgment in favor of employer on Title VII discrimination and Equal Pay Act claims -- No abuse of discretion in assessing statutory COBRA penalty of $75 a day against former employer -- Error to dismiss FMLA interference claim on summary judgment based solely on conclusion that plaintiff had suffered no “legal damages” because she was paid for her work -- FMLA provides for both legal and equitable relief, and although plaintiff requested several forms of equitable relief in her complaint, neither magistrate judge nor district court considered availability of such relief -- In addition to question whether employer interfered with plaintiff's FMLA rights, there were other unresolved issues of material fact requiring trial, such as whether plaintiff was prejudiced by any FMLA interference -- Attorney's fees -- Fee-shifting provision of Employee Retirement Income Security Act, 29 U.S.C. § 1132(g)(1), which applied to plaintiff's COBRA claim, provides for recovery of reasonable attorney's fees as well as costs of action -- Definition of costs under section 1920 is not controlling -- Reasonable litigation expenses such as mediation, legal research, postage, and travel may be recovered under section 1132(g)(1) if it is the prevailing practice in the legal community to bill fee-paying clients separately for those expenses -- Remand for consideration of prevailing practice in local community and reasonableness of mediation, legal research, postage, and travel expenses requested by plaintiff, but excluded by district court from fees and costs award
VIEW OPINION

Insurance -- Crop insurance -- Coverage -- Arbitration -- District court reversibly erred in vacating decision of arbitrator that had denied insured's claim under a crop insurance policy based on insured's failure to timely comply with policy requirements for submitting a claim and supporting documentation -- Arbitrator was entitled to conclude that insurer had authority under policy to set a reasonable deadline for receipt of necessary documentation in support of claim, and that insured's failure to comply with that deadline was an adequate basis for insurer's denial of his claim -- Under circumstances presented in case, arbitrator also was entitled to make his findings without first seeking a formal opinion of Federal Crop Insurance Corporation, the federal agency with authority over crop insurance policies -- Because FCIC already had issued a binding opinion authorizing an insurer to set reasonable deadlines for submission of requested documentation, arbitrator did not exceed his authority in basing his decision to deny claim on timeliness of insured's claim documentation -- Insured waived any argument based upon arbitrator's failure to deliver his decision and award within time limitations provided by policy where insured did not object when arbitrator's deadlines passed, but waited until after he received an adverse decision and then filed an action in district court to challenge arbitrator's decision -- An arbitrator's award will not be overturned where the losing party failed to object immediately upon expiration of deadline, especially when there has been no demonstration of any prejudice arising from the delay
VIEW OPINION

Individuals with Disabilities Education Act -- District court did not abuse its discretion by concluding, after considering all relevant factors and weighing the equities, that county was required to reimburse parent for cost of placing autistic son in private school -- Provision for limitation on reimbursement for a unilateral private school placement does not apply in instant case in which school board approved or, at the very least, acquiesced in placement of child at private school -- Moreover, provision for limitation on reimbursement does not bar claim for reimbursement, but instead lists failure to give notice as an equitable consideration to be weighed by district court when exercising its discretion to reduce or deny reimbursement -- In view of school board's agreement to placement, there is no merit to its argument that parent's failure to alert board of her intent to seek reimbursement deprived it of an opportunity to address her concerns
VIEW OPINION

Criminal law -- Habeas corpus -- Murder -- Death penalty -- Jurors -- Challenges -- Peremptory -- Racial discrimination -- District court did not clearly err in denying relief on claim that prosecutor engaged in racially discriminatory jury selection in violation of Batson v. Kentucky, by striking six of thirteen eligible African-American jurors -- Prosecutor articulated facially valid race-neutral reasons to support each of its strikes, and each of these reasons was supported by record and, at least arguably, had some basis in accepted trial strategy -- Although defendant's arguments that prosecutor's reasons were pretextual were also plausible and had some support, where there are two permissible views of the evidence, the factfinder's choice between the two cannot be clearly erroneous
VIEW OPINION

Criminal law -- Habeas corpus -- Counsel -- Ineffectiveness -- Sentencing phase of capital trial -- District court did not err in denying habeas relief on claim that trial counsel rendered ineffective assistance in penalty phase due to failure to investigate and present mitigation evidence -- State supreme court's rejection of claim that trial counsel's performance was deficient was not an unreasonable application of clearly established federal law or based on unreasonable determination of facts -- AEDPA deference standard applies to state supreme court's decision on petitioner's claim of ineffective trial counsel, where petitioner argues for first time on appeal for a different standard of review, and state court clearly understood nature of petitioner's claim
VIEW OPINION

Speech -- Municipal corporations -- Challenge to city sound ordinance, which bans loud, raucous, or other unreasonably disturbing amplified noise within 100 feet of property line of any health care facility, brought by plaintiffs who advocate against abortion -- District court did not abuse its discretion in refusing to issue preliminary injunction after finding that city's sound ordinance was valid time, place, or manner restriction on speech in a public forum that was content-neutral, narrowly tailored to advance city's substantial interest in protecting patients, and left open ample alternative avenues of communication -- No abuse of discretion in determining that plaintiffs failed to establish substantial likelihood of success on claims that ordinance was void for vagueness and was being applied discriminatorily against plaintiffs
VIEW OPINION

Criminal law -- Absence of counsel from critical stage of trial -- New trial required on all charges where defense counsel was temporarily absent from courtroom during trial when directly inculpatory testimony was admitted into evidence and contributed to defendant's conviction -- Structural error exists where counsel is prevented from assisting defendant during critical stage of proceeding -- Structural error is not subject to harmless error review, and such error taints convictions as to all counts
VIEW OPINION

Criminal law -- Habeas corpus -- Murder -- Death penalty -- District court did not err in denying relief on guilt-phase claims alleging Brady violations and ineffective assistance of trial counsel or on claim that petitioner's due process rights were violated when state court reversed trial court's finding as to one of four statutory aggravating circumstances supporting death penalty but affirmed death sentence without a harmless error analysis -- Discovery -- State's failure to comply -- State court's rejection of claim that prosecution failed to disclose exculpatory Brady material to defendant was not contrary to, or an unreasonable application of, clearly established federal law and was not based on unreasonable determination of the facts -- Evidence supported finding that the alleged immunity agreement between state and prosecution witness regarding certain scrap metal thefts did not, in fact, exist; that undisclosed prosecutor's notes were not Brady material because the notes contained only a summary of defendant's prior statements in defendant's own words; and that defense had equal access to certain witness statements which were purportedly undisclosed and that certain of these statements were non-exculpatory in nature -- Counsel -- Ineffectiveness -- State court's rejection of claim that counsel was ineffective for failing to call witness to explain family origin of glass vase mentioned in prosecution witness's testimony was not contrary to, or unreasonable application of, federal law and was not based on unreasonable determination of facts
VIEW OPINION

Torts -- Fraud -- Investment partnership, which lost over $6.7 million when Ponzi scheme perpetrated by attorney collapsed, sued bank that allegedly made material misrepresentations and took other actions to aid and abet attorney to perpetuate Ponzi scheme -- Jurisdiction -- Appellate court had jurisdiction over order imposing discovery sanctions on bank under doctrine of pendent appellate jurisdiction -- Standing -- Investment partnership had constitutional standing to bring action against bank where plaintiff suffered an injury-in-fact from investing in bank -- Evidence -- Witness testimony -- District court did not abuse discretion in allowing plaintiff to call bank's former regional vice president as a nonparty witness for purpose of having him invoke the Fifth Amendment privilege against compelled self-incrimination in jury's presence and instructing jury that they could draw an adverse inference from the invocation where adverse inferences drawn were trustworthy -- Error, if any, in allowing plaintiff to ask nonparty witness questions that were not corroborated by independently admissible evidence and in authorizing jury to draw adverse inferences therefrom did not affect defendant's substantial rights and was harmless, because only adverse inferences that could have been drawn from witness's refusal to answer the questions implicating the alleged error were essentially duplicative of other questions amply supported by properly admitted evidence -- No abuse of discretion in refusal to grant new trial -- Settlement agreement recital -- Error in admitting settlement agreement between investment firm and trustee of bankruptcy estate of alleged Ponzi perpetrator, which recited that firm had no knowledge of or complicity in or with Ponzi scheme, was harmless, because error did not cause substantial prejudice to bank -- Damages -- Investment firm could claim as damages amount paid to settle a potential preferential transfer claim with bankruptcy trustee, where bank appeared at settlement-approval hearing and did not oppose the settlement, settlement with trustee was pursuant to its potential liability to trustee, settlement was reasonable, and amount of settlement that plaintiff sought to recover from bank was a loss to plaintiff caused by bank's aiding and abetting Ponzi scheme -- Sanctions -- Discovery violations -- Error, if any, in district court's decision to deem as established bank's actual knowledge of attorney's fraud and unreasonableness of bank's account-monitoring systems, or in its predicate finding of willfulness, was harmless -- Racketeering -- Complaint -- Amendment -- No abuse of discretion in denying motion to amend complaint to plead RICO claim based on open-ended continuity where plaintiff has not shown good cause for not seeking to amend pleading earlier -- Motion to amend filed four months after plaintiff should have known that its closed-ended continuity theory might be untenable and that it had not pled an open-ended pattern of racketeering was unduly delayed
VIEW OPINION

Torts -- Negligence -- Plaintiffs sued laboratory alleging its cytotechnologists negligently failed to identify abnormalities in plaintiff's pap smears and that this negligence caused a delay in plaintiff's cancer diagnosis -- Evidence -- Standard of care -- Expert witness testimony -- District court abused discretion in excluding testimony of plaintiff's expert witness concerning alleged breach of standard of care for cytotechnologists based on conclusion that her methodology was unreliable where witness was qualified to testify about cytotechnologists' standard of care, her methodology was reliable, and her testimony would assist the trier of fact -- District court manifestly erred in concluding that expert's methodology is an ipse dixit assessment that is devoid of any methodology that would allow another expert to challenge it in any objective sense and is not a peer-reviewable evaluation where expert formed her opinion by using reliable tools, applying an established body of medical knowledge, and drawing on her extensive, relevant experience in the fields of cytopathology and cytotechnology -- District court committed an error of law by concluding that expert's methodology did not satisfy the generally accepted standards in areas of pathology and cytotechnology, faulting expert for failing to conduct a blinded review, which is the standard set by the profession based on litigation guidelines created by interested industry groups -- District court's ruling runs afoul of Supreme Court decisions in Daubert and Kumho, which do not allow courts to delegate to interested industry groups the court's gatekeeping duties to screen out speculative, unreliable expert testimony -- District court supplanted jury's factfinding role when it determined that expert's methodology was unreliable because review bias is inherent in a non-blinded review, and expert admitted in her deposition that she had a philosophical bent toward a plaintiff who has developed cervical cancer -- District court's reasoning that expert's testimony was unreliable because her approach did not account for similar conditions and surrounding circumstances under which a cytotechnologist works was manifestly erroneous
VIEW OPINION

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