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Federal New Releases

New Releases
from Federal Courts

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Copyrights -- Infringement -- Academic works -- Three publishing houses brought copyright infringement action alleging members of the Board of Regents and officials at state university infringed plaintiffs' copyrights by maintaining a policy which allows professors to make digital copies of excerpts of plaintiffs' books available to students without paying plaintiffs -- Immunity -- Argument that defendants are immune from suit pursuant to Eleventh Amendment, which was not raised on cross-appeal, is not properly raised -- Fair use -- District court abused discretion in granting declaratory and injunctive relief to plaintiffs where court's grant of injunctive relief was predicated on its finding of infringement, which was in turn based on court's legally flawed methodology in balancing four fair use factors and erroneous application of factors two and three -- District court did not err in performing a work-by-work analysis of individual instances of alleged infringement in order to determine the need for injunctive relief -- However, district court did err by giving each of four fair use factors equal weight, and by treating the four factors mechanistically, rather than undertaking a holistic analysis which carefully balanced the four factors -- District court did not err in holding that first fair use factor, the purpose and character of the use, favors a finding of fair use, notwithstanding nontransformative nature of the use, where defendant's use was for nonprofit educational purposes, which are favored under fair use statute -- District court erred in holding that second fair use factor, the nature of the copyrighted work, favors fair use in every case -- Because the digital copies of excerpts in question contained evaluative, analytical, or subjectively descriptive material that surpasses the facts, or derives from the owner's own experiences or opinions, district court should have held that second factor was neutral or even weighted against fair use where such material dominated -- In analyzing the third fair use factor, the amount used in relation to the copyrighted work as a whole, district court erred in setting a 10 percent-or-one-chapter benchmark, rather than performing this analysis on a work-by-work basis, taking into account whether the amount taken, qualitatively and quantitatively, was reasonable in light of the pedagogical purpose of the use and threat of market substitution -- District court did not err in its application of fourth fair use factor, the effect of defendants' use on potential market for or value of copyrighted work -- District court erred by not affording fourth factor more significant weight in overall fair use analysis, where defendants' unpaid copying was nontransformative and plaintiffs' works were used for one of purposes for which the works were marketed and threat of market substitution was severe -- District court erred by separating two additional considerations from its analysis of first and fourth fair use factors -- Although it is within district court's discretion to go beyond considerations set forth in four factors, district court's supplemental considerations of whether limited unpaid copying of excerpts will deter authors from creating new academic works and whether slight limitation of permissions income caused by defendants' fair use would promote spread of knowledge and would not appreciably diminish plaintiffs' ability to publish scholarly works, were not actually supplemental, and as such should have been considered within existing statutory framework -- Attorney's fees -- Prevailing party -- Because district court's designation of defendants as prevailing party and consequent award of attorney's fees and costs were predicated on its erroneous fair use analysis, reversal of award of attorney's fees and costs to defendants is appropriate
VIEW OPINION

Bankruptcy -- Liens -- Mortgages -- Strip down/off -- Chapter 7 debtor was entitled to “strip off” junior priority mortgage lien on her home, where senior priority mortgage lien exceeded home's fair market value, leaving junior lien wholly unsecured -- Under Eleventh Circuit precedent, an allowed claim that is wholly unsecured is voidable under plain language of 11 U.S.C. § 506(d)
VIEW OPINION

Insurance -- Officers and directors liability -- Excess coverage -- Appeal from dismissal of settling insured's civil action against excess insurer for breach of contract and for bad-faith failure to settle underlying federal securities class-action suit -- Questions certified to Georgia Supreme Court: Under the facts of this case, and in the light of the final judgment and order approving of and authorizing and directing the implementation of the terms of the settlement agreement in underlying suit, is insured “legally obligated to pay” the $4.9 million settlement amount, for purposes of qualifying for insurance coverage under the Excess Policy? In a case like this one, when an insurance contract contains a “consent-to-settle” clause that provides expressly that the insurer's consent “shall not be unreasonably withheld,” can a court determine, as a matter of law, that an insured who seeks (but fails) to obtain the insurer's consent before settling is flatly barred, whether consent was withheld reasonably or not, from bringing suit for breach of contract or for bad-faith failure to settle? Or must the issue of whether the insurer withheld unreasonably its consent be resolved first? In this case, under Georgia law, was insured's complaint dismissed properly?
VIEW OPINION

Consumer law -- Debt collection -- Action alleging that defendant debt collector violated Florida Consumer Collection Practices Act and Fair Debt Collection Practices Act by sending plaintiff a letter stating that “Unless you, within 30 days of receipt of this notice, dispute the validity of the debt, or any portion thereof, the debt will be assumed to be owed” -- Complaint stated claim that letter violated FDCPA because it did not state that if plaintiff did not dispute the debt within 30 days the only entity to assume the debt to be valid is the debt collector -- Defendant's substitution of the word “owed” for the word “valid” in the letter is not a basis for FDCPA claim -- Complaint stated claim that letter violated FCCPA provision that a person shall not assert the existence of a legal right when such person knows that the right does not exist by asserting the misleading communication regarding who could assume that the debt was owed -- Complaint stated claim that letter violated provision of FDCPA that debt collector shall not use any false representations or deceptive means to attempt to collect any debt by stating that if federal bankruptcy discharge has been entered, an In Rem judgment will be entered -- Language could be perceived by the least sophisticated consumer to mean that the consumer will not be allowed to contest an In Rem judgment before it is entered -- Plaintiff may seek declaratory and injunctive relief
VIEW OPINION

Insurance -- Homeowners -- Sinkhole claim -- Claim by insurer that insured building did not suffer “structural damage” as defined by statute -- Where policy did contain a definition of “structural damage” or refer to the statutory definition, “structural damage” should be given its plain meaning as “damage to the structure”
VIEW OPINION

Bankruptcy -- Confirmation -- Chapter 13 plan -- Modification -- Trustee moved to dismiss Chapter 13 case eighteen months after debtors provided their tax return indicating increased income on the grounds that the debtors should have modified their plan to reflect the increased income -- Dismissal based on debtors' failure to amend their schedules to reflect increased income is not appropriate because “income verification” language contained in plan, which stated that debtors would provide copies of all tax returns during pendency of plan, and debtors would modify the plan and amend Schedules I and J if necessary, is ambiguous, and does not require annual statements of income and expenditures as the Bankruptcy Code allows -- Dismissal based on debtors' failure to modify their plan is not required by IVL, or supported by Bankruptcy Code -- Bankruptcy Code does not affirmatively require debtors to amend or modify their plan as a result of an increase in income and, thus, IVL requires debtors to modify their plan, if appropriate, upon trustee's motion to modify -- Although Section 1329 of Bankruptcy Code allows a debtor, a trustee, or a creditor to seek modification of a bankruptcy plan, it does not require the debtors to sua sponte affirmatively modify their plan upward as a result of an increase in income -- Holding does not limit right of debtor, trustee, or creditor to seek future modification of Chapter 13 plan by filing motion to modify
VIEW OPINION

Bankruptcy -- Sanctions -- Debtor's counsel -- Imposition of Rule 9011 sanctions upon experienced consumer bankruptcy lawyer are warranted for filing 138 cases with attendant schedules and statements and 82 amended schedules under penalty of perjury without first obtaining the clients' review or signature -- Under circumstances of case, an order imposing sanction is necessary to carry out provisions of Bankruptcy Code and Rules -- Ensuring debtors actually sign and review accuracy of their schedules and amendments, as is required by Bankruptcy Code, preserves integrity of bankruptcy system
VIEW OPINION

Bankruptcy -- Jurisdiction -- Bankruptcy court has subject matter jurisdiction over all claims presented in instant adversary proceeding under 28 U.S.C. § 1334, as all matters either arise under title 11 or arise in a case under title 11 within meaning of Section 1334 -- Request for declaratory judgment that all of the defendants “are owned by the debtor and/or are his alter ego, that they and their assets are accordingly property of the estate under 11 U.S.C. § 541,” a matter that can only arise in a title 11 case, is a proceeding “arising in” a case under title 11, and a proceeding “arising under” title 11 as bankruptcy court is asked to determine scope of Section 541 -- Request for order of turnover under 11 U.S.C. § 542 of those assets identified as property of estate, a cause of action specifically provided for in Bankruptcy Code, is a matter “arising under” title 11 -- Request for substantive consolidation of all defendants into debtor's bankruptcy estate, a request for relief available only in bankruptcy, is a proceeding “arising in” a case under title 11 -- All requests for relief are core matters under 28 U.S.C. § 157(b) as each request for relief is either a proceeding arising under title 11 or a proceeding arising in a case under title 11 -- Bankruptcy court may enter final orders and judgments as current adversary proceeding does not involve exercise of judicial power of United States -- Because relief requested requires bankruptcy court to determine what is and is not property of estate, a decision central to mission of bankruptcy court, ruling on claims presented does not require exercise of judicial power of United States -- Even if case involved fraudulent transfer claims, as movant argues, it remains unclear whether such claims may be the subject of final orders and judgments in bankruptcy court consistent with Article III
VIEW OPINION

Bankruptcy -- Attorney's fees -- Creditor's counsel -- Lender and first mortgage-holder on the debtor's homestead filed a motion pursuant to Federal Rule of Bankruptcy Procedure 3002.1 for attorney's fees and costs it incurred due to multiple dismissals and reinstatements of debtor's bankruptcy case -- Lender could only recover attorney's fees and costs incurred within 180 days preceding filing of motion -- Rule 3002.1 requires lenders to give notice within 180 days of incurring claim-related fees, expenses or charges that are recoverable against either the debtor or debtor's principal residence -- If the case is dismissed again, the Lender may seek all fees and costs incurred to which the lender might otherwise be entitled in any subsequent foreclosure actions
VIEW OPINION

Creditors' rights -- Collection efforts under Terrorism Risk Insurance Act by victims of kidnapping by terrorist organization against agencies or organizations of terrorist organization (claimants) to recover default judgment entered in favor of victims against terrorist organization -- Due process -- Claimants were entitled to actual notice and to be heard before execution, though not necessarily before attachment -- TRIA does not preempt Florida law, and judgment creditors seeking to satisfy judgments under it must follow notice requirements of Florida law -- District court used proper standard to find claimants to be agencies or instrumentalities of terrorist organization -- Assets of claimants were blocked when Office of Foreign Assets Control designated claimants as Special Designated Narcotics Traffickers -- OFAC's de-listing of claimants did not operate retroactively to put their assets out of plaintiffs' reach because they were no longer blocked -- There is no merit to contention that means by which plaintiffs moved against claimants' assets constituted fraud -- Reassignment to different district court judge on remand is unnecessary -- Turnover judgment against one claimant reversed, as writ of garnishment was filed after claimant's de-listing by OFAC, so that claimant's assets were not blocked -- District court judgment as to other claimants affirmed
VIEW OPINION

Wrongful death -- Product liability -- Tobacco -- Evidence -- In wrongful death action against cigarette manufacturer, district court abused discretion by excluding evidence of decedent's alcohol abuse -- District court improperly shifted burden of proof by forcing defendant to prove that decedent's death was caused by something other than smoking -- District court applied wrong legal standard in requiring testimony offered by defendant regarding alternative causes be to a reasonable degree of medical certainty, rather than the “more likely than not” standard, and placed the burden of proof as to causation on the wrong party -- Decedent's alcohol abuse was an essential part of defendant's attempt to show that something other than his smoking could have caused his death -- Decedent's alcohol abuse was relevant to cause of death, to determination of comparative fault, and to damages -- Prejudicial effect of evidence of alcohol abuse did not outweigh probative value
VIEW OPINION

Torts -- Medical malpractice -- Presuit requirements -- Federal preemption -- Presuit requirement that plaintiff execute a written authorization form for release of protected health information is compliant with Health Insurance Portability and Accountability Act and its regulations, and is not preempted
VIEW OPINION

Torts -- Federal Tort Claims Act -- Multiple plaintiffs and their family members brought action against United States under Federal Tort Claims Act alleging they experienced various health problems after being exposed to toxic substances in drinking water while living at military base -- Limitation of actions -- Statute of repose -- Comprehensive Environmental Response, Compensation, and Liability Act does not preempt North Carolina's statute of repose -- Exceptions -- Latent diseases -- North Carolina's statute of repose does not contain an exception for latent diseases -- Amendment to statute of repose that created exception for groundwater contamination was substantive in nature, and thus did not apply retroactively to revive FTCA claims against United States, even though amendment purported to apply to actions “filed, arising, or pending” on or after its effective date, and legislature stated that it was clarifying scope of statute of repose, where original statute of repose was unambiguous, and gave no indication that exception existed for latent diseases
VIEW OPINION

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