Monday, October 27, 2014

FDCPA, FCCPA, copyrights and academic works, and eggplant, black olive, roasted garlic, and heirloom tomatoes over angel hair pasta

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
ERICA MARTIN, on behalf of herself and others similarly situated, Plaintiff, v. BUTLER & HOSCH, P.A., Defendant. U.S. District Court, Middle District of Florida, Tampa Division.

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
CAMBRIDGE UNIVERSITY PRESS, OXFORD UNIVERSITY PRESS, INC., SAGE PUBLICATIONS, INC., Plaintiffs-Appellants, v. CARL V. PATTON, et al., Defendants, J. L. ALBERT, in his official capacity as Georgia State University Associate Provost for Information System and Technology, MARK P. BECKER, in his official capacity as President of Georgia State University, KENNETH R. BERNARD, JR., in his official capacity as member of the Board of Regents of the University System of Georgia., ROBERT F. HATCHER, in his official capacity as Vice Chair of the Board of Regents of the University System of Georgia, W. MANSFIELD JENNINGS, JR., in his official capacity as member of the Board of Regents of the University System of Georgia, JAMES R. JOLLY, in his official capacity as member of the Board of Regents of the University System of Georgia, et al., Defendants-Appellees. 11th Circuit.

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

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
THELMA AYCOCK, as Personal Representative of the Estate of Richard Aycock, Plaintiff-Appellee, v. R.J. REYNOLDS TOBACCO COMPANY, individually and as successor by merger to the Brown and Williamson Tobacco Corporation and the American Tobacco Company, Defendant-Appellant, PHILIP MORRIS USA, INC., et al, Defendants. 11th Circuit.

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Sunday, October 19, 2014

Oklahoma Supreme Court rules Facebook post informing dad of planned adoption not adequate notice

"Pregnant and planning to have her baby adopted, an Oklahoma woman sent a Facebook post to the father to let him know. . . .'This court is unwilling to declare notice via Facebook alone sufficient to meet the requirements of the due process clauses of the United States and Oklahoma Constitutions because it is not reasonably certain to inform those affected,' wrote Justice David Combs in the supreme court’s Tuesday ruling. It reversed an appellate court and vacated a trial court’s decision to terminate the parental rights of Billy McCall."  More.

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Sunday, October 12, 2014

Obama reportedly weighs executive action to bypass congressional obstacle and close Guantanamo

"President Barack Obama is said to be unwavering in his commitment to close the Guantanamo detention facility, so much so that the White House is drafting options that would allow him to do so through executive action." More.

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Monday, October 6, 2014

Business law, civil procedure, and ground almond corn meal souffle pancakes with fresh peaches lightly sauteed in butter and dark maple syrup

Richardson v. Koch Law Firm, P.C.
Court: U.S. 7th Circuit Court of Appeals
Docket: 12-3868 Opinion Date: September 26, 2014
Judge: Easterbrook
Areas of Law: Bankruptcy, Civil Procedure

Richardson, apparently a lawyer who has been suspended several times, incurred educational debt in 1988 but did not pay. Indiana University, the creditor, sued in 1998. Richardson filed a bankruptcy petition days before trial but did not tell the court, the University, or its counsel. Nor did he appear for trial. The state judge entered a default judgment, which the law firm tried unsuccessfully to collect. After learning about the bankruptcy, the law firm stopped collection efforts. The bankruptcy ended in 2001, and the firm resumed collection efforts, relying on 11 U.S.C. 523(a)(8), which makes most educational debts nondischargeable. Richardson filed a second bankruptcy in 2002 that lasted until 2007. Again the law firm ceased its efforts until after its end. The post-2007 efforts resulted in Richardson’s claim that the law firm violated the Fair Debt Collection Practices Act, 15 U.S.C. 1692e, 1692f, by trying to enforce a judgment that had been entered in violation of the Bankruptcy Code’s automatic stay. The district court treated the suit as a collateral attack on the state court’s judgment and dismissed for want of jurisdiction, invoking the Rooker-Feldman doctrine. The Seventh Circuit held that the dismissal should be on the merits, noting that the state court judgment was vacated at the request of Indiana University.

Wells Fargo Equip. Fin., Inc. v. Titan Leasing Inc.
Court: U.S. 7th Circuit Court of Appeals
Docket: 13-2291 Opinion Date: September 30, 2014
Judge: Easterbrook
Areas of Law: Business Law, Commercial Law, Contracts

Gerdau leased a locomotive from Titan for use in switching at its Knoxville mill. Titan shipped the locomotive in 2008, but it was damaged in transit and sent for repair. It did not reach Gerdau’s plant until 2009. Gerdau rejected it, stating that it needed further repairs. While the locomotive was being repaired, Titan assigned the lease to Leasing, an affiliated business, which then used the lease as security for a loan from Wells Fargo. The loan is nonrecourse: Wells Fargo agreed to look for repayment exclusively from the stream of rentals expected from Gerdau. Leasing made several warranties. Gerdau has never made a payment on the lease. Wells Fargo has taken control of the locomotive and is attempting to sell it. The district court granted summary judgment against Wells Fargo, ruling that Leasing had kept its promises. The court looked to the lease, and then to the Uniform Commercial Code, to see whether the locomotive had been “accepted” when the lease was assigned. Gerdau had an opportunity and the lease required Gerdau to inspect before shipment. The Seventh Circuit reversed. Gerdau did not acknowledge the locomotive’s receipt; Leasing did not live up to its warranties. It must repay Wells Fargo. Titan must perform the guarantees.

Foodmark, Inc. v. Alasko Foods, Inc.
Court: U.S. 1st Circuit Court of Appeals
Docket: 13-2188 Opinion Date: October 1, 2014
Judge: Thompson
Areas of Law: Business Law, Consumer Law, Contracts

Alasko Foods, Inc. (“Alasko”), a Canadian corporation that sells frozen produce to retail outlets, and Foodmark, Inc. (“Foodmark”), a Massachusetts corporation that assists food manufacturers in marketing branded-label and private-label products to retailers, entered into a “U.S. Representation Agreement [and] Sales Management Agreement” wherein Alasko retained Foodmark to market Alasko’s products in the United States. Five years later, Alasko terminated the Agreement. Foodmark filed a complaint against Alasko, alleging that Alasko’s refusal to pay the “Non-Renewal Termination Fee” contemplated by the Agreement constituted a breach of the Agreement and of its covenant of good faith and fair dealing. A federal district court entered summary judgment for Foodmark and awarded $1.1 million in damages. The First Circuit affirmed, holding that there were no genuine issues of fact, and Foodmark was entitled to a termination fee in the amount calculated by the district court.

Lightfoot v. Cendant Mortgage Corp.
Court: U.S. 9th Circuit Court of Appeals
Docket: 10-56068 Opinion Date: October 2, 2014
Judge: Fletcher
Areas of Law: Civil Procedure

Plaintiffs appealed the district court's judgment dismissing her claims against Fannie Mae, contending that the district court lacked jurisdiction over their claims. The court affirmed, concluding that, under the rule announced in American National Red Cross v. S.G., the sue-and-be sued clause in Fannie Mae's federal charter confers federal question jurisdiction over claims brought by or against Fannie Mae. Accordingly, the district court had subject matter jurisdiction over plaintiffs' claims.

Bersin Bagel Group v. The Original Brooklyn Water Bagel Co., et al.
Court: U.S. 11th Circuit Court of Appeals
Docket: 13-12798 Opinion Date: September 30, 2014
Judge: Marcus
 Areas of Law: Civil Procedure

The district court entered a final judgment that barred future lawsuits against OBWB related to certain false patent marking or advertising after OBWB settled a qui tam false marketing suit. Subsequently, Bersin filed suit against OBWB for damages tied to Bersin's investment in an OBWB franchise. The district court issued an order that purported to enforce the federal judgment by enjoining Bersin's state court suit. The court concluded that it lacked jurisdiction to hear the appeal where the order was not final under 28 U.S.C. 1291 because it was not the proper tool for enforcing an injunction. The order did not hold a noncompliant party in contempt or impose sanctions, nor was the order an appealable interlocutory decision for purposes of section 1292(a)(1). The order merely clarified the existing injunction found in the district court's judgment. Accordingly, the court dismissed the appeal.

Scarlott v. Nissan North America, Inc., et al.
Court: U.S. 5th Circuit Court of Appeals
Docket: 13-20528 Opinion Date: September 30, 2014
Judge: Higginson
Areas of Law: Civil Procedure

Plaintiff filed suit in Texas state court against Nissan for breach of express warranty, breach of implied warranty, and violation of Texas law. Plaintiff then amended her complaint to add claims against the dealership, a Nissan distributor, and an auto care company (Hurricane). Defendants asserted federal question jurisdiction under the Magnuson-Moss Warranty Act, 15 U.S.C. 2301 et seq., and removed to federal court. Plaintiff raised the issue of subject matter jurisdiction three months after removal. Plaintiff subsequently dismissed her claims against the dealership and distributor. Plaintiff then filed a motion to remand the suit to state court and the district court denied the motion. The court reversed and remanded, concluding that the district court erred by denying plaintiff's motion to remand where it was not facially apparent that her total damages meet the $50,000 jurisdictional threshold.

Monkton Ins. Servs., Ltd. v. Ritter
Court: U.S. 5th Circuit Court of Appeals
Docket: 13-50941 Opinion Date: September 26, 2014
Judge: Elrod
Areas of Law: Civil Procedure

Plaintiff filed a third-party complaint against Butterfield, a Cayman bank organized and regulated under Cayman law and located on the Island of Grand Cayman, alleging that Butterfield breached contracts with Geneva by failing to detect forged signatures on withdrawals from Geneva's bank account. On appeal, plaintiff challenged the dismissal of his claims against Butterfield for lack of personal jurisdiction. The court concluded that exercising specific jurisdiction over Butterfield would be improper because Butterfield has not purposefully availed itself of the benefits and protections of Texas law through minimum contacts related to the cause of action. Accordingly, the court affirmed the district court's grant of Butterfield's motion to dismiss for lack of personal jurisdiction. Further, the district court did not abuse its discretion in denying plaintiff's motion for jurisdictional discovery.

Cedar Lodge Plantation, L.L.C., et al. v. CSHV Fairway View I, L.L.C., et al.
Court: U.S. 5th Circuit Court of Appeals
Docket: 14-30735 Opinion Date: September 26, 2014
Judge: Jones
Areas of Law: Civil Procedure, Class Action

Cedar Lodge filed a proposed class action suit against Fairway Defendants in Louisiana state court and Fairway Defendants removed to federal court under the Class Action Fairness Act (CAFA), 28 U.S.C. 1332(d). Cedar Lodge subsequently amended the complaint to add STS, a Louisiana citizen, as defendant and moved to remand to state court under the local controversy exception to CAFA jurisdiction. The district court remanded. This court then granted the Fairway Defendants permission to appeal the remand order and now hold that the application of the local controversy exception depends on the pleadings at the time the class action is removed, not on an amended complaint filed after removal. Accordingly, the court reversed and remanded for further proceedings.

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