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Federal New Releases

New Releases
from Federal Courts

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Federal Tort Claims Act -- Limitation of actions -- Equitable tolling -- FTCA requires that tort claim against United States be presented to appropriate federal agency within two years after claim accrues and then brought to federal court within six months after agency acts on the claim -- Courts may toll both of the FTCA's limitations periods -- In absence of affirmative indication from Congress that it intends to preclude equitable tolling in a suit against the government, time bar is treated as a mere claims-processing rule
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Antitrust -- Natural-gas pricing -- Federal preemption -- Natural Gas Act -- State-law antitrust claims brought by a group of institutions that buy natural gas directly from interstate pipelines against the pipelines, claiming that pipelines engaged in behavior that violated state antitrust laws, are not within field of matters preempted by Natural Gas Act -- Where, as here, the pipelines' behavior affected both federally regulated wholesale natural-gas prices and non-federally regulated retail natural-gas prices, preemption can be found only where a detailed examination convincingly demonstrates that a matter falls within pre-empted field as defined by Supreme Court's precedents
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Bankruptcy -- Adversary proceedings -- Discharge -- Violation of injunction -- Chapter 11 debtors brought adversary proceeding in their reopened case seeking damages, attorney's fees, and cancellation of bank's mortgage as “redress” for bank's alleged violation of the discharge injunction by failing to foreclose, or delaying foreclosure, on condominium debtors had purported to surrender under their confirmed plan -- Portions of complaint seeking relief from secured creditor for its alleged failure to foreclose or foreclose “timely” should be dismissed for failure to state a claim for which relief could be granted -- A creditor's decision whether to foreclose and/or repossess property is purely a voluntary and discretionary decision -- Secured creditor had prerogative to decide whether to accept or reject surrendered property where evidence shows that condo was worth more than $700,000 when debtors filed their Chapter 11 petition, debtors have retained title to and right to possession and use of condo since filing their Chapter 11 case and confirmed their plans, and bank's in rem rights against condo have retained value because of value of condo -- Given facts of case, debtor's act of “surrender” of condo did not obligate secured creditor to take affirmative action to foreclose on property and to transfer title out of debtors' names -- Deficiency judgment -- Dismissal of complaint should be granted without prejudice to extent complaint alleges a violation of discharge injunction due to inclusion of request for deficiency judgment in foreclosure complaint -- Debtors should be given opportunity to amend their complaint to allege, if appropriate, a willful violation of discharge injunction, to seek to hold creditor in contempt, and request appropriate damages, notwithstanding creditor's withdrawal of its request for deficiency judgment in state court, which it asserts was in error, since there is no longer any ongoing violation of discharge injunction
VIEW OPINION

Bankruptcy -- Attorneys -- Disqualification -- Trustee's counsel -- Defendant in adversary proceeding brought by trustee moved to disqualify counsel for trustee based on counsel's alleged improper elicitation of privileged material and ex parte communications with two of defendant's former employees, purportedly in violation of Florida Rules of Professional Conduct -- Banking privileges -- Testimony and information elicited by counsel from defendant's former employees does not fall within common law Banking Examination Privilege or common law banking privileges derived from referenced state and federal laws -- Privileges are not triggered where defendant failed to prove that counsel or trustee obtained or used any privileged information in investigation leading up to, or in the drafting of, complaint -- Florida's statutory privilege under Section 655.057(1) is not applicable because there is no dispute that Florida investigation and associated report were completed -- Florida's statutory privilege under Section 655.057(2) and federal statutory privilege under 12 C.F.R. Section 309.6 do not apply because each applies only to documents and records -- Banking Examination Privilege does not extend to oral communications, and even if it did, privilege is not triggered in circumstances of case, because defendant failed to prove that any of information provided by former employees was other than factual, and failed to proved that any of information was either pre-decisional or deliberative, or so intertwined with a pre-decisional or deliberative record to trigger the privilege -- Neither the examination nor the interview of former employees was a violation of Florida Bar Rules of Professional Conduct addressing communications with person represented by counsel; dealing with unrepresented persons; respect for rights of third persons; misconduct involving dishonesty, fraud, deceit, or misrepresentation; fairness to opposing party and counsel; and truthfulness in statements to others -- Information gathered by counsel does not warrant disqualification of law firm or sanctions -- Disqualification is not warranted where information obtained by defendant was not privileged, counsel did not violate any of the Florida Rules of Professional Responsibility, and, even if information obtained was privileged in some respect, it did not create an unfair advantage in litigation and was inadmissible as evidence against defendant
VIEW OPINION

Bankruptcy -- Confirmation -- Chapter 13 plan -- Disposable income -- Deductions -- Appeals -- Mootness -- Dismissal of debtor's Chapter 13 case moots bankruptcy appeal raising the question whether a debtor can, in his chapter 13 plan, deduct from his disposable income scheduled payments on secured mortgage debt, even though he is not making those payments
VIEW OPINION

Civil rights -- Prisoners -- Prison Litigation Reform Act -- Exhaustion of administrative remedies -- State-prison inmate filed Section 1983 suit in federal court against prison officials for allegedly subjecting him to harsh treatment in retaliation for filing grievances about prison conditions -- Prisoner satisfied requirement under the PLRA to exhaust state's administrative remedies prior to filing Section 1983 suit because he met conditions for bypassing the requirements to submit an informal, then formal, grievance to designated officials within correctional institution and instead to file a grievance directly with Secretary of Florida DOC, where prisoner clearly stated at beginning of grievance form that he was filing a grievance of reprisal, and content of his grievance form clearly stated the reason for by-passing the informal and formal institutional grievance steps -- Allegations that high-ranking prison officials orchestrated or were involved in retaliatory actions after prisoner filed internal grievances “clearly state” his reasons for not filing a complaint at institutional level -- Error to dismiss complaint for failure to exhaust administrative remedies -- District court should not have dismissed complaint for failure to state a claim without either explanation or leave to amend -- One-sentence conclusion that amended complaint failed to state a claim was insufficient explanation -- Where complaint alleges that prison guards and officials sprayed prisoner with a large amount of teargas without provocation; denied him prompt medical care; filed false disciplinary reports; threatened further retaliation; and, after his transfer to another facility, filed another false disciplinary report and threatened him, all in retaliation for filing grievances, allegations, taken as true, state First Amendment retaliation claims and Eighth Amendment cruel and unusual punishment claims against many of defendants
VIEW OPINION

Criminal law -- Search and seizure -- Vehicle stop -- Traffic infraction -- Continued detention to enable dog sniff -- Police stop exceeding time needed to handle the matter for which the stop was made violates Constitution's shield against unreasonable searches -- Accordingly, police extension of traffic stop in order to conduct dog sniff is unconstitutional -- Court of appeals erred in finding that prolonging traffic stop by seven to eight minutes was an acceptable de minimis intrusion on defendant's personal liberty -- Because court of appeals did not address question whether reasonable suspicion of criminal activity justified detaining defendant beyond completion of traffic infraction investigation, that issue remains open for consideration on remand
VIEW OPINION

Criminal law -- Sentencing -- Federal guidelines -- Offense level -- Increase -- Use of computer to solicit person to engage in unlawful sexual activity with minor -- No error in applying two-level computer use enhancements -- Defendant's conduct of using his cell phone to place online ads offering young girls for prohibited purposes falls squarely within plain language of enhancement for using a computer to solicit a person to engage in prohibited sexual conduct with a minor -- Application note, which states that enhancement applies only to use of computer to communicate directly with a minor or person who exercises control over minor, is inconsistent with applicable guideline, and thus plain language of guideline controls -- No error in enhancing defendant's base offense level for his role as an organizer, leader, manager, or supervisor -- Finding that defendant exercised supervisory role in criminal scheme was not clearly erroneous, where defendant actively recruited persons to aid him in his criminal scheme, paying them for services they rendered; arranged transportation for young girls to meet clients; set prices girls were to charge; kept the majority of illegal gains for himself; and took the lewd photographs posted online at his direction
VIEW OPINION

Racketeering -- Torts -- Fraud -- Aiding and abetting -- Conspiracy -- Breach of fiduciary duty -- Limitation of actions -- Appeal from dismissal of complaint filed by participants in income tax shelter scheme known as Custom Adjustable Rate Debt Structure transaction, alleging defendant and its co-conspirators defrauded plaintiff taxpayers by promoting and selling CARDS for their own financial gain -- Accrual date -- Because Florida law is unclear as to when plaintiffs first suffered injury, and thus when their claims against defendant accrued for purposes of applicable statutes of limitations, and appeal depends wholly on interpretations of Florida law, following question was certified to Florida Supreme Court: Under Florida law and the facts in this case, do the claims of the plaintiff taxpayers relating to the CARDS tax shelter accrue at the time the IRS issues a notice of deficiency or when the taxpayers' underlying dispute with the IRS is concluded or final?
VIEW OPINION

Antitrust -- Monopoly -- Dominant producer of domestic pipe fittings in ductile iron pipe fittings market who, in response to entry of competitor into domestic fittings market, implemented its Full Support Program requiring its distributors to fully support its branded products or lose their rebates and be cut off from purchases, filed petition seeking review of order of Federal Trade Commission directing petitioner to stop requiring exclusivity from distributors -- Federal Trade Commission's factual and economic conclusions, identifying the relevant product market for domestic fittings produced for domestic-only projects, finding that petitioner had monopoly power in that market, and determining that petitioner's exclusivity program harmed competition, are supported by substantial evidence in record and Commission's legal conclusions comport with governing law -- Commission's determination of relevant market and its findings of monopoly power and anticompetitive harm pass Eleventh Circuit's deferential standard of review -- Monopoly power in relevant market -- There was sufficient evidence to support Commission's market definition, given identification of persistent price difference between domestic fittings and imported fittings, distinct customers, and lack of reasonable substitutions in this case -- Evidence of petitioner's overwhelming market share, the large capital outlays required to enter domestic fittings market, and petitioner's undeniable continued power over domestic fittings prices amount to sufficient evidence to support Commission's conclusion that petitioner possessed monopoly power in relevant market -- Monopoly maintenance -- Harm to competition -- For exclusive dealing cases, government must show that defendant engaged in anticompetitive conduct that reasonably appears to significantly contribute to maintaining monopoly power -- Commission's conclusion that Full Support Program was an exclusive dealing policy that harmed competition by foreclosing competitor's access to necessary distributors and contributed significantly to competitor's lost sales and subsequent inability to purchase its own foundry and expand output was supported by substantial evidence and sound as matter of law -- Argument that Full Support Program was presumptively legal because it was short-term and voluntary, rather than binding contract of a longer term, is rejected -- Procompetitive justifications -- Where petitioner offers argument that the Full Support Program was necessary to retain enough sales to keep its domestic foundry afloat and that program was needed to keep competitor from “cherry picking” the core of domestic fittings business, petitioner's procompetitive justifications for its conduct are unpersuasive -- Moreover its internal documents belie notion that program was designed for any procompetitive benefit -- Petitioner's conduct amounts to a violation of Section 5 of Federal Trade Commission Act
VIEW OPINION

Insurance -- Bad faith -- Jurisdiction -- Removal of state court action to federal court -- Remand to state court -- Diversity -- Motion to remand on ground that remand of single count for bad faith from remaining counts of amended complaint violates procedure for removals of diversity civil actions is denied -- Insurer, as removing party, met its burden to establish diversity jurisdiction where insurer sufficiently alleged its citizenship in Illinois and has shown by preponderance of evidence that amount in controversy can more likely than not be satisfied -- Premature removal -- Motion to remand on ground that removal of bad faith action prior to determination of existence of liability and extent of damages makes removal premature is denied -- Statutory bad faith claim is subject to removal -- Removal of bad faith claim is timely where removal was within thirty days of date trial court granted request to amend complaint to assert the bad faith claim -- Waste of resources -- Motion to remand on ground that removal of unaccrued statutory bad faith claim wastes resources of parties and judicial resources is denied -- While removal of premature bad faith claim engenders an enormous waste of judicial resources, any concern as to consequence of inconsistent verdicts is unfounded, as a jury verdict as to damages in underlying case in state court is binding -- Trial court acted within its discretion in permitting amendment of complaint to assert bad faith claim
VIEW OPINION

Insurance -- Bad faith -- Statutory bad faith claim is premature where liability and damages have not yet been determined -- Premature bad faith claim should be dismissed without prejudice, rather than abated -- Motion for extension of time to file case management report denied as moot
VIEW OPINION

Insurance -- Liability -- Directors, officers and entity -- Indemnification -- Insurer filed complaint for declaratory relief against judgment creditor seeking declaration that it has no duty under insurance policy issued to judgment debtor to indemnify insured and insured's subsidiary for amount awarded to judgment creditor in underlying state court tort action, and insured asserted affirmative defense that insurer is estopped from denying coverage -- Final judgment against insured and its subsidiary for civil theft is not an insured “loss” under Directors, Officers and Entity Coverage Part of liability policy -- Final judgment for civil theft is not a “loss” as that term is defined in D&O policy -- As matter of law, “loss”does not include “restoration of ill-gotten gains” -- Final judgment for civil theft is not insurable as a matter of Florida public policy -- Treble damages awarded in final judgment under Florida Statutes are “the multiple portion of a multiplied damage award,” which is expressly excluded from definition of “loss” in liability policy at issue -- Exclusions -- Even if final judgment met definition of loss as set forth in policy, criminal act or willful violation exclusion, gain of profit or advantage exclusion, and breach of contract exclusion bar coverage for final judgment -- Final judgment for civil theft is “based upon, arising from, or related to a deliberately fraudulent or criminal act or omission or a willful violation of law,” and falls squarely within express language of criminal act or willful violation exclusion -- Final judgment for civil theft is “based upon, arising from, or related to the gaining, in fact, of any personal profit, remuneration or advantage to which insured and its subsidiary were not legally entitled,” and as such falls squarely within express language of gain of profit or advantage exclusion -- Final judgment for civil theft, which occurred at end of contractual relationship between insured and judgment creditor, is “based upon, or arising from, or related to liability under a contract or agreement,” and falls squarely within express language of breach of contract exclusion -- Crime coverage -- Under plain language of crime coverage part of liability policy, insurer is not obligated to provide coverage for acts of civil theft committed by insured and its subsidiary -- Property damage -- Final judgment of civil theft is not “property damage” caused by an “occurrence,” as those terms are defined in general liability policy, and thus final judgment falls outside of express language of and is not covered by policy -- Exclusions -- Even if final judgment was within definition of property damage caused by an occurrence, expected or intended injury exclusion and care, custody or control exclusion bar coverage for final judgment -- Because a finding of civil theft includes a finding of intent, any damage resulting from final judgment is expected or intended from standpoint of the insured -- Coverage is barred by care, custody or control exclusion because property was in care, custody or control of insured when insured committed civil theft -- Estoppel -- Insurer is not estopped from denying coverage for the final judgment which is not covered under insurance policy -- Estoppel may not be used to create coverage beyond terms upon which parties agreed in policy
VIEW OPINION

Civil rights -- Law enforcement officers -- Search and seizure -- Arrest -- Excessive force -- Qualified immunity -- District court did not err in granting summary judgment in favor of defendants who directly participated in arrest of plaintiff for assaulting police officer with deadly weapon -- Standard for analyzing excessive force claim is whether force applied by officer was objectively reasonable in light of facts confronting officer -- Force used while plaintiff was resisting was not objectively unreasonable, and plaintiff admitted that officers did not apply any force after he surrendered his hands to be cuffed -- Summary judgment in favor of remaining officers who did not participate directly in the arrest was also appropriate because officer has no duty to intervene in another officer's use of force when that use of force is not excessive
VIEW OPINION

Criminal law -- Habeas corpus -- Murder -- Death penalty -- Intellectual disability -- District court's finding that petitioner was not intellectually disabled was not clearly erroneous -- Counsel -- Ineffectiveness -- Sentencing phase of trial -- Investigation or presentation of mitigating evidence -- Counsel's failure to present mitigating evidence during penalty phase could not have been prejudicial to petitioner where petitioner affirmatively prevented counsel from presenting mitigating evidence which counsel was prepared to present -- Petitioner failed to show reasonable probability that he would have authorized trial counsel to present mitigating evidence had he been advised more fully about character of evidence or if trial counsel had requested a continuance -- Prosecutorial misconduct -- Argument -- District court did not err in determining that state court's decision that prosecutor's closing arguments were not so egregious as to require reversal was not contrary to, or unreasonable application of, Supreme Court precedent -- Comments that prosecutor had prosecuted nine murder cases but had never before sought death penalty and other expressions of prosecutor's personal belief that petitioner deserved to be sentenced to death were improper, but court's instructions to jury and totality of sentencing proceeding made clear to jury its role in sentencing proceedings
VIEW OPINION

Criminal law -- Possession with intent to distribute cocaine, cocaine base, and other drugs -- Possession of firearm by convicted felon and in furtherance of drug trafficking crime -- Search and seizure -- Hotel room -- Warrant -- No error in denying motion to suppress evidence found in hotel room during execution of search warrant, although affidavit in support of warrant was based in part on observations made during unlawful entry, where information independent of tainted information was sufficient to provide probable cause for warrant, and supervising detective testified he would have sought warrant absent the illegal entry -- No error in denying motion for judgment of acquittal based on insufficient evidence and inconsistent verdicts -- Evidence was sufficient to establish knowing possession of drugs and firearm -- Verdict finding defendant guilty of being a felon in possession of Phoenix Arms firearm, not guilty of being a felon in possession of Glock firearm, and guilty of possessing firearm in furtherance of drug trafficking crime was not inconsistent -- No abuse of discretion in denying motion for new trial based on inconsistent verdicts -- Jury instructions -- No merit to suggestion that there was insufficient factual support for pattern jury instruction on intentional flight, which allows jury to determine whether flight actually occurred
VIEW OPINION

Insurance -- Marine -- Coverage -- Misrepresentations on application -- District court did not clearly err in determining that named insured committed material misrepresentation, rendering policy void ab initio, by misrepresenting purchase price of insured vessel by almost a quarter-million dollars -- District court did not err in finding that mortgagee was not covered under terms of insurance policy's standard mortgage clause -- Issue was not outside scope of proceedings where pretrial stipulation agreed to by all of the parties specifically raised issue of whether mortgagee was covered under terms of clause “notwithstanding any alleged acts or omissions of” the named insured -- Although clause explicitly and unambiguously protected mortgagee's interest in the loan on the vessel, even if the underlying insurance policy was “impaired or invalidated by any act or omission, or neglect of the mortgagor,” named insured on policy was neither the owner of the vessel insured by the policy nor the mortgagor on the loan for which the vessel served as collateral
VIEW OPINION

Securities -- Fraud -- Offer or sale of security -- Misrepresentation or omission of material fact -- Securities and Exchange Commission brought civil enforcement action against consulting and public relations services providers, and their principals, alleging violations of Securities Act and Securities Exchange Act -- Defendants, who conceived, drafted, edited, or reviewed numerous press releases emphasizing multi-million dollar contract defendants' client allegedly acquired with federal agencies, could be liable under Section 17(a)(2) of Securities Act, which prohibits obtaining money or property by means of any misrepresentation or omission of material fact in offer or sale of securities, regardless of whether they had ultimate authority over content of press releases -- For purposes of liability under Section 17(a)(2), it is irrelevant whether the seller uses his own false statement or one made by another individual -- Obtaining money “by means of” any untrue statement under Section 17(a)(2) encompasses a broader range of conduct than “making” any untrue statement of material fact as defined in SEC Rule 10b-5(b) -- Aiding and abetting -- District court did not err when it found that severe recklessness was sufficient to constitute acting “knowingly,” and thus could satisfy scienter requirement in aiding and abetting case under Section 20(e) of Exchange Act -- Arguments concerning retroactivity of amendment to Section 20(e) are misplaced -- Jury instructions -- Deliberate ignorance -- Instructing jury on deliberate ignorance was proper where evidence was sufficient for jury to determine that defendants were aware of high probability that government contract was fraudulent and took deliberate actions to avoid learning that fact -- Deliberate ignorance instruction focused on individual defendant's subjective belief, even though instruction did not include “actual belief” language -- Instruction was not misleading simply because it discussed language related to deliberate ignorance and severe recklessness in separate paragraphs of same substantive instruction -- Defendants acted as underwriters and dealers with respect to registration requirements of Securities Act, and therefore did not qualify for exemption from requirement to register securities where defendants received stock with view toward distribution and were in business of buying and selling securities -- Evidence -- District court properly performed its “gatekeeping function” by excluding testimony of expert where expert did not provide sufficient justification as to how his personal experience could be reliably applied to the facts -- Expert did not testify as to legal conclusion by opining that defendant consulting and public relations services providers and their principals did not conduct reasonable due diligence under industry standards -- Evidence was sufficient to support jury's determination that defendant principal acted with actual knowledge and severe recklessness in making false statements or omissions and aiding and abetting
VIEW OPINION

Wrongful death -- Product liability -- Tobacco -- Engle progeny case -- Federal preemption -- Obstacle preemption -- Federal law preempts plaintiff's claims against cigarette manufacturers for strict liability and negligence which were premised on non-brand-specific jury findings in state class-action lawsuit encompassing thousands of state citizens who brought state-law damage claims against major American tobacco companies for medical conditions, including cancer, caused by addiction to cigarettes that contained nicotine -- Engle strict-liability and negligence jury findings have imposed duty on all cigarette manufacturers that they breached every time they placed a cigarette on the market, and that result is inconsistent with the full purposes and objectives of Congress, which has sought to safeguard consumers' right to choose whether to smoke or not to smoke -- While state may ordinarily enforce duties on cigarette manufacturers in bid to protect the health, safety, and welfare of its citizens, it may not enforce a duty, as Florida has through the Engle jury findings, premised on the theory that all cigarettes are inherently defective and that every cigarette sale is an inherently negligent act -- These specific, sweeping bases for state tort liability frustrate the full purposes and objectives of Congress -- District court erred in denying judgment as matter of law in favor of defendants on strict-liability and negligence claims
VIEW OPINION

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