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Civil rights -- Pregnancy discrimination -- An individual pregnant worker who seeks to show disparate treatment through indirect evidence may do so through application of McDonnell Douglas framework -- Pregnancy Discrimination Act requires court to consider the extent to which an employer's policy treats pregnant workers less favorably than it treats nonpregnant workers similar in their ability or inability to work, and it requires courts to consider any legitimate, nondiscriminatory, nonpretextual justification for these differences in treatment -- Record shows that petitioner, who was a part-time driver for respondent when she became pregnant and was advised by her doctor that she should not lift more than 20 pounds, created a genuine dispute as to whether employer, who required drivers to able to lift up to 70 pounds, provided more favorable treatment to at least some employees whose situations cannot reasonably distinguished from petitioner's -- On remand circuit court should determine whether petitioner also created a genuine issue of material fact as to whether employer's reasons for having treated petitioner less favorably than other nonpregnant employees were pretextual
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Elections -- Redistricting -- Equal protection -- Racial gerrymandering -- State legislature -- Challenge to state's new district boundaries for its state house of representatives and state senate as creating racial gerrymanders in violation of Equal Protection Clause -- District Court's analysis of racial gerrymandering claim as referring to state “as a whole,” rather than district-by-district, was legally erroneous -- Supreme Court has consistently described a claim of racial gerrymandering as claim that race was improperly used in drawing of boundaries of one or more specific electoral districts and has described the plaintiff's evidentiary burden similarly -- On remand district court must consider racial gerrymandering with respect to the individual districts being challenged -- District court erred in deciding, sua sponte, that state Democratic Conference lacked standing -- Elementary principles of procedural fairness required district court to give conference an opportunity to provide evidence of member residence -- District court did not properly calculate predominance in its alternative holding that race was not the predominant motivating factor in the creation of any of challenged districts -- District court's alternative holding that challenged districts would satisfy strict scrutiny rests upon a misperception of law, as Section 5 of Voting Rights Act does not require covered jurisdiction to maintain a particular numerical minority percentage; rather, statute is satisfied if minority voters retain their ability to elect their preferred candidates
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Civil procedure -- Complaint -- Amendment -- Addition of parties -- Plaintiff failed to demonstrate good cause to amend her complaint, after time prescribed by court's scheduling order, by failing to exercise diligence in discovering and utilizing the information that formed the basis for seeking leave to amend -- Without demonstration of good cause, leave to amend after time to do so has expired need not be granted
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Insurance -- Life sciences liability -- Duty to defend and indemnify -- Dispute as to whether insurance companies owed duty to defend and indemnify prescription drug manufacturers for underlying lawsuit brought by State of West Virginia alleging the drug manufacturers sold pharmacies such large quantities of abused prescription drugs that the number of prescription drugs in some communities was far greater than population could actually warrant -- State sought injunctive relief and damages for costs to state resulting from prescription drug abuse epidemic in state -- Choice of law -- Where policy at issue was issued and delivered in New Jersey and New Jersey rule for insurance contract interpretation applicable to this case does not differ in any material respect from Florida rule, such that the results in this case would be same under laws of both states, a “false conflict” exists and therefore a choice of law determination is not required -- Insurer owed pharmaceutical manufacturer no duty to defend or indemnify against claims asserted in underlying complaint -- Policy which provides coverage for bodily injury does not cover claims asserted in underlying complaint because claims seek damages, not for bodily injury, but for economic loss to state arising from massive costs state has been required to spend because of insured's distribution of drugs allegedly in excess of legitimate medical need -- Exclusions -- Even if underlying complaint asserted claims “for bodily injury,” unfair competition exclusion clearly and unambiguously applies to preclude any duty on part of insurer to indemnify or defend insured for underlying complaint -- Other insurers that issued policies providing coverage for bodily injury owed no duty to indemnify or defend for underlying complaint which asserts claims for economic harm to state, and not “for bodily injury” -- Neither bodily injury exclusion nor products exclusion in policies issued by these other insurers was triggered by underlying complaint
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Securities -- Sale -- Registration statement -- Opinion statements -- Under section 11 of Securities Act of 1933, purchaser of stock may sue for damages if registration statement contains “an untrue statement of a material fact” or “omit[s] to state a material fact . . . necessary to make the statements therein not misleading” -- Purchasers' action against company alleging statements expressing company's opinion that it was in compliance with federal and state laws constituted untrue statements of material fact and that company omitted to state material facts necessary to make the statements not misleading -- Opinion statement does not constitute an “untrue statement of . . . fact” simply because stated opinion ultimately proves incorrect; however, opinion statements are not wholly immune from section 11 liability -- Discussion of when an opinion itself constitutes a factual misstatement and when opinion may be rendered misleading by the omission of discrete factual representations -- Opinion statements at issue in this case were not actionable under section 11 where company's sincerity was not contested and statements at issue were pure opinion statements -- Remand for determination, using correct standard, whether purchasers stated viable omissions claim or, if not, whether they should have opportunity to replead
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Trademarks -- Infringement -- Likelihood of confusion -- Collateral estoppel -- Issue preclusion -- Trademark-registration decisions of Trademark Trial and Appeal Board are entitled to preclusive effect in subsequent infringement suit if ordinary elements of issue preclusion are met
VIEW OPINION

Bankruptcy -- Preferential transfers -- Transfers to investors in debtor's business, which was claimed to be a hedge fund, but which bankruptcy court determined was operated as Ponzi scheme -- Evidence -- Summaries -- Hearsay -- Exceptions -- Business records -- Because underlying documents would have been admissible into evidence as business records, bankruptcy court did not abuse its discretion by admitting into evidence trustee's rule 1006 summaries of debtor's business documents -- Authentication -- Trustee's testimony that all of the underlying documents were found at debtor's offices and that information in those documents substantially matched records kept by financial institutions and clients with which debtor had transacted was sufficient to permit bankruptcy court to conclude that underlying documents were true and authentic records of debtor's business -- Trustee's testimony, based on firsthand knowledge obtained through his investigation, was sufficient to establish that underlying documents met requirements of business records exception to hearsay rule -- Although bankruptcy court found that underlying documents would have been admissible under residual hearsay exception, any error in that regard would not have been prejudicial given Court's ruling that underlying documents qualified as business records
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Environmental law -- Environmental organization's challenge to U.S. Army Corps of Engineer's enactment of nationwide permit that allows surface coal mining operations to discharge dredged or fill materials into navigable waters on ground that Corps arbitrarily and capriciously found that permit would have no more than minimal environmental effects, in violation of both Clean Water Act and National Environmental Policy Act -- District court properly found that plaintiff had standing to sue in federal court because its members suffered injury as result of Corps' decision -- District court abused its discretion in finding that lawsuit was barred by equitable doctrine of laches -- Neither inexcusable delay nor prejudice resulting from alleged delay was shown -- Although district court concluded that Corps' determinations that its enactment would have only “minimal cumulative adverse effect” on the environment pursuant to CWA and “no significant impact” on environment pursuant to NEPA were not arbitrary and capricious, case must be remanded where on eve of oral argument in court of appeals Corps admitted it had underestimated acreage of waters that would be affected by the projects authorized under the permit -- On remand, Corps to reconsider its conclusion that environmental impacts of enactment are minimal in light of all relevant data
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Bankruptcy -- Claims -- Claims for amounts allegedly due for assistance in recovering royalty payments derived from music compositions of debtor's late husband -- Consulting agreement between debtor and claimant was acquired through fraud and is invalid, and there is no entitlement to compensation under this agreement or to damages stemming from bankruptcy court's approval of debtor's rejection of consulting agreement -- Moreover, claimant did not provide any services which would be compensable under consulting agreement, even if it were valid -- Administrative expenses -- Claims not allowable as administrative expense -- Because claimant sold himself as having the attributes of a professional person, he cannot disavow that status for purposes of Bankruptcy Code provisions requiring bankruptcy court approval of employment and terms of compensation -- Compensation without court approval not available under section 503(b)(1)(A) as a necessary cost of preserving estate -- Statute cannot be used to sidestep provisions of Code mandating court approval of professional's term of employment -- Further, claimant has provided no benefit to bankruptcy estate -- Claimant not entitled to compensation under theories of quantum meruit or unjust enrichment
VIEW OPINION

Bankruptcy -- Liens -- Strip off of junior lien -- Valuation -- Petition date is proper date to use when valuing real property to determine secured status of a junior lien in a Chapter 7 case -- Junior mortgage in instant case was, as of petition date, wholly unsecured and is avoided
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Bankruptcy -- Exempt property -- Homestead -- Debtor who jointly owns home with non-debtor spouse and who has elected not to claim homestead exemption under Florida Constitution may claim wildcard exemption under section 222.25(4), Florida Statutes, so long as Chapter 7 trustee is not prevented from effectively administering home -- Because debtor's spouse has formally waived right to claim homestead exemption, debtor has not limited trustee's ability to administer home in this bankruptcy case, and trustee's objection to debtor's claim of exemption is overruled
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Bankruptcy -- Exempt property -- Equitable interest in retirement accounts received through division of marital assets in dissolution of marriage proceedings -- Under applicable state law, debtor had equitable interest in accounts as of date dissolution petition was filed, and this interest matured upon entry of written order -- Florida's state law exemptions do not prohibit debtor from claiming exemption of her equitable or contingent interest in the accounts -- Objections to claims of exemption denied
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Bankruptcy -- Chapter 11 -- Confirmation of plan -- Feasibility -- Debtor, which operates skilled nursing facility that derives 90% of revenue from Medicare and Medicaid patients and which has proposed chapter 11 plan that is funded from its continuing operations, has satisfied requirements for confirming proposed plan that is funded from debtor's continuing operations, despite objection by U.S. Department of Health and Human Services that plan is not feasible because debtor's Medicare provider agreement was terminated prepetition and, as a consequence, so was debtor's Medicaid provider agreement -- Although HHS, through center for Medicare & Medicaid Services, gave debtor notice it was terminating its Medicare provider agreement prepetition, that termination was not complete and irreversible until appeals process was complete, and appeals process was not completed prepetition -- Accordingly, Medicare provider agreement can be assumed under Bankruptcy Code section 365, which means that debtor's Medicaid provider agreement does not terminate as a matter of law -- Because Medicare and Medicaid provider agreements remain in effect, plan is feasible and should be confirmed
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Bankruptcy -- Voidable transfers -- Once trustee establishes that transfers are avoidable, either because they are preferential or fraudulent, trustee may recover value of property from either initial transferee or entity for whose benefit such transfer was made -- Complaint alleged sufficient facts to show plausible case that defendants were beneficiaries of avoidable transfers -- Trustee was not required either to join initial transferees as parties or to allege that they were mere conduits given allegations that transfers were made “for the benefit of” defendants -- Motion to dismiss denied
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Criminal law -- Murder for hire -- Conspiracy -- Evidence -- Tape recordings -- No error, plain or otherwise, in admission of audio recordings of four conversations between defendant and the wife of his coconspirator where no remarks within taped conversations constituted improper hearsay that could have prejudiced defendant -- Defendant's statements were admissible as statements of party-opponent -- Statements of coconspirator's wife were not hearsay because they were non-assertive statements that were incapable of being true or false or they were statements that were indisputably false and therefore could not possibly have been offered to prove truth of matter asserted -- Statements of wife were offered as evidence solely for the fact that they were made and to show the effect those statements had on defendant -- Where admission of substance of a communication between defendant and another person is sought, fact that statements made by the other person were out of court does not, as a blanket matter, preclude admission; rather, defendant first has to identify these statements and object to their admission -- Lay opinion testimony -- District court did not abuse discretion by admitting lay opinion testimony of coconspirator's wife that clarified her understanding of substance of her conversations with defendant, where testimony was rationally based on her perception, first-hand knowledge, and observation and her testimony was helpful to jury in understanding facts at issue -- Prosecutorial misconduct -- Cross-examination -- “Were-they-lying” questions -- Any error created by prosecutor asking testifying defendant whether witnesses who had testified contrary to defendant on particular matters were lying was harmless and not a persuasive ground for reversal, given abundant evidence presented at trial to support a conclusion that defendant was guilty beyond any reasonable doubt, regardless of prosecutor's “were-they-lying” questions, and given instructions advising jury of its role to decide credibility of all witnesses and the importance of their testimony -- Closing argument -- Prosecutor's comments during closing argument were not impermissible attacks on defendant's credibility where challenged comments, when viewed in context, indicate that prosecutor was urging jury to draw certain conclusions from evidence, and not interjecting his personal views on defendant's guilt or on the evidence -- Comments in closing argument that focused on defendant's own credibility and inconsistencies in his own testimony, as contrasted with consistency of testimony of a government witness, were not improper based on argument that challenged comments were a clear continuation of improper “were-they-lying” cross-examination questions
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Criminal law -- Guilty plea -- Sentencing -- District court committed plain error in accepting defendant's guilty plea to possession of fifteen or more unauthorized access devices, a crime for which he was not indicted -- Both plea agreement and plea colloquy assumed that indictment charged defendant with possession of fifteen or more unauthorized access devices, when indictment actually charged defendant with conspiring to possess access devices -- Accepting defendant's guilty plea was plain error, because conviction for a crime not charged in indictment clearly affected outcome of defendant's proceedings and seriously affected fairness, integrity, and public reputation of judicial proceedings -- Conviction as to unindicted offense must be reversed -- Conviction for aggravated identity theft must be reversed for lack of sufficient evidence because conviction relied upon defendant's conviction for possession of fifteen or more access devices
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Consumer law -- Telephone Consumer Protection Act -- Unsolicited advertisements -- Autodialed or prerecorded calls -- Action against entities that used an automatic telephone dialing system to send unsolicited commercial advertisements to plaintiff's emergency telephone line alleging that defendants violated Telephone Consumer Protection Act -- District court erred when it ruled that a single fax cannot amount to two separate violations of Act, but error was harmless because district court awarded correct amount of damages -- When defendants used, or employed a third-party to use, an automatic telephone dialing system to place a call to an emergency telephone line, they violated the Act, regardless of what message they transmitted -- When defendants used that call to “send” an unsolicited advertisement, they committed another violation of Act, which would have been a violation even if they had not sent the advertisement to an emergency line -- Treble damages -- District court did not err when it ruled that plaintiff was ineligible for treble damages because plaintiff failed to establish that defendants, as the violators, “willfully or knowingly” violated Act by failing to allege facts or present evidence to establish that defendants knew they placed a call to an emergency line or that the advertisement was unsolicited -- Injunctions -- District court did not err when it denied plaintiff a permanent injunction, denied his untimely discovery requests, and declined to award him costs -- Plaintiff was not entitled to an injunction because he established neither a likelihood of future harm nor inadequacy of his remedy at law -- Nothing suggests plaintiff submitted a request for costs to court clerk, as required by local rules of district court
VIEW OPINION

Civil rights -- Search and seizure -- Law enforcement officers -- Excessive force -- Vehicle passenger who was shot during traffic stop and subsequently arrested for possession of cocaine and drug paraphernalia brought civil suit under 42 U.S.C. § 1983 against shooting officer and two other officers involved in arrest asserting claims for excessive use of force, false arrest, and deliberate indifference to serious medical condition -- Qualified immunity -- Officers are entitled to qualified immunity and summary judgment on claims that officers violated plaintiff's Fourth Amendment rights when they performed an arrest without probable cause -- Officers are entitled to summary judgment on corollary state law claims alleging lack of probable cause to arrest -- Plaintiff failed to establish a violation of his Fourth Amendment rights because undisputed evidence shows that officers had probable cause to arrest plaintiff -- Testimony of one of three officers that she had a direct line of vision through car windshield and saw plaintiff throw a small glass pipe that she believed to be drug paraphernalia out the window was sufficient to show probable cause that plaintiff had committed crime of possession of drug paraphernalia, and plaintiff failed to point to other portions of record that would show that there was indeed a genuine issue of fact about whether officer saw plaintiff throw pipe -- Deliberate indifference -- Two of three officers are not entitled to qualified immunity from deliberate indifference claims where plaintiff presented facts from which a jury could find that officers acted with deliberate indifference and law was clearly established on date of incident that officer's conduct constituted deliberate indifference -- Plaintiff established that two of officers acted with deliberate indifference to plaintiff's serious medical need where it is disputed that a gunshot wound presents an objectively serious medical need and, for purposes of subjective inquiry, plaintiff presented sufficient evidence from which reasonable jury could conclude that two of officers were deliberately indifferent to his serious medical need -- Plaintiff presented sufficient evidence to satisfy deliberate indifference test where evidence shows that each officer knew plaintiff had suffered a gunshot wound, each officer had subjective knowledge of substantial risk of serious harm to plaintiff, two of officers disregarded the risk of harm, and conduct of these officers amounted to more than gross negligence -- Prior case law provided officers with reasonable warning that conduct at issue violated constitutional rights -- Third officer is entitled to summary judgment based on qualified immunity from deliberate indifference claim where officer was not on scene when shooting occurred or when officers initially delayed seeking medical assistance for plaintiff and there is no evidence that he was aware that two other officers had violated department protocol by failing to immediately report gunshot wound
VIEW OPINION

Criminal law -- Possession of firearm by convicted felon -- Question certified whether prior guilty plea to possession of cocaine in Florida, where adjudication was withheld, qualifies as a “conviction” under Florida law
VIEW OPINION

False Claims Act -- Qui tam actions against educational institution for falsely certifying to government that it was in compliance with various federal statutes and regulations to receive financial-aid funds from federal fisc -- Mere disregard of federal regulations or improper internal practices does not create liability under section 3729 of Act unless, as result of such acts, defendant knowingly asked government to pay amounts it does not owe -- Incentive compensation -- Relator's allegations that despite its certifications of compliance with higher Education Act's ban on recruitment-based incentive compensation, institution violated ban by paying recruiters retention bonuses, cash bonuses, trips, or salaries based on number of students they enrolled, were sufficient to withstand motion to dismiss -- Relator's failure to use word “solely” was not enough to preclude inference that he pleaded a plausible violation of Act -- Inference not foreclosed by fact that compensation policy in the record included nonrecruitment factors, as that policy was not in place during entire period covered by relator's allegations -- District court properly dismissed, as insufficiently pled, claims relating to grade inflation, violations of 90/10 rule requiring that school derive no less than 10% of its revenues from non-Title IV funds, and false statements in support of accreditation, but dismissal should have been without prejudice to government asserting claims against institution -- Rehabilitation Act claims -- Scienter -- District court did not err in granting summary judgment to school on second relator's claims that school falsely certified its compliance with Rehabilitation Act and its implementing regulations with either actual knowledge that it was not in compliance or with reckless disregard for whether certification was true -- Even if school's act of voluntarily entering into a restoration agreement with Department of Education's Office of Civil Rights was tantamount to a judicial admission of noncompliance, these facts alone would not permit rational jury to find that school's inaccurate compliance certification was made with requisite scienter -- Civil procedure -- Argument that summary judgment was prematurely entered because school had been ordered to produce four documents wrongfully withheld as privileged just two business days before not basis for reversing summary judgment where relator never notified district court about discovery dispute
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Bankruptcy -- Chapter 11 -- Objection to valuation and composition of reorganized entity under second amended plan of reorganization -- Bankruptcy court correctly valued reorganized entity as going concern, selected an appropriate discount rate, properly considered pertinent factors, including risk of losing key employees, and properly exercised its discretion to weigh expert testimony and select portions to accept or reject -- Non-debtor releases or bar orders -- Bankruptcy court did not abuse its discretion in approving non-debtor releases -- Extensive discussion of non-debtor releases and guidance as to authority of bankruptcy courts to issue non-consensual, non-debtor releases or bar orders, and circumstances under which such bar orders might be appropriate -- Bad faith -- Debtor did not propose reorganization plan in bad faith for sole and exclusive benefit of insiders, and reorganization plan did not unfairly discriminate against objecting equity holder, which was paid full value of its equity interest -- Dow Corning factors -- Interest -- Bankruptcy court did not clearly err in setting interest rate for promissory notes received by former equity holder -- Bankruptcy court did not abuse its discretion by allowing debtor to take rule 2004 exams of equity holder's officers -- Constitutionality of bankruptcy decision -- Initial brief failed to articulate constitutional claim of arguable merit
VIEW OPINION

Criminal law -- Search and seizure -- Residence -- No error in denying motion to suppress contraband found in plain view by officers during protective sweep conducted after officers entered third party's apartment for purpose of executing valid warrant for arrest of defendant -- Subject of an arrest warrant cannot challenge execution of that warrant and the later discovery of evidence in a third party's home -- Evidence -- District court did not abuse its discretion when it refused to allow forensics expert to testify about sufficiency of a latent fingerprint for comparison on ground that witness was not an expert in fingerprint comparison -- District court applied correct law, correctly ordered Daubert hearing, and did not base its decision on clearly erroneous facts
VIEW OPINION

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