Flo
& Eddie v. Sirius XM Radio
Court:
U.S. Court of Appeals for the Second Circuit
Docket:
15-1164
Opinion
Date: February 16, 2017
Areas
of Law: Copyright
Sirius
appealed the district court's order denying its motions for summary judgment
and reconsideration in regard to Flo & Eddie's copyright infringement suit.
The court certified a significant and unresolved issue of New York law that is
determinative of this appeal: Is there a right of public performance for
creators of pre-1972 sound recordings under New York law and, if so, what is
the nature and scope of that right? The New York Court of Appeals answered that
New York common law does not recognize a right of public performance for
creators of pre-1972 sound recordings. In light of this ruling, the court
reversed the district court's denial of summary judgment and remanded with
instructions to grant Sirius's motion for summary judgment and to dismiss the
case with prejudice.
Vergara
Madrigal v. Tellez
Docket:
16-50149
Opinion
Date: February 16, 2017
Areas
of Law: Family Law, International Law
Father
initiated proceedings for the return of his two young daughters under the Hague
Convention on the Civil Aspects of International Child Abduction, Oct. 25,
1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89. The children resided in Mexico
City until Mother took them on vacation and wrongfully detained them in the
United States. The district court ordered the children returned to Mexico. The
court affirmed the district court's denial of Father's post-judgment motions,
concluding that the courts in Mexico, the state of the children's habitual
residence, are the appropriate forum to grant relief to address his concerns.
The court explained that, subject only to the confines of Mexican law, Mexican
courts are free to grant Father full custody over the children and to prohibit
or restrict their international travel, and there is no international legal
void that requires the Convention’s intervention. In regard to Mother's
challenge of the district court's denial of her motion to vacate the Original
Return Order, the arrest warrant for Mother's arrest does not establish clear
and convincing evidence of a grave risk of harm to the children. Therefore, the
court affirmed the district court's denial of Mother's motion to vacate.
Babcock
& Wilcox Co. v. Cormetech, Inc.
Court:
U.S. Court of Appeals for the Sixth Circuit Docket: 16-3305
Opinion
Date: February 15, 2017
Areas
of Law: Business Law, Contracts
In
2005, B&W entered into a contract to design and construct a Selective
Catalyst Reduction (SCR) system to control emissions at KCP&L’s
coal-burning Kansas power station. B&W purchased catalyst modules for the
SCR from Cormetech, which guaranteed that the catalyst would perform under
specified conditions for 24,000 operating hours before needing replacement.
KCP&L began operating the SCR in April 2007. A June 2007 performance test
revealed that the rate of “ammonia slip” was higher than expected, but within
guaranteed limits. B&W advised Cormetech of the issue. Cormetech began
testing. A September 2008 letter from KCP&L advised that it was B&W’s
obligation to “generate a corrective action plan.” After KCP&L determined
in 2008 that the catalyst was at the end of its useful life, it contracted
directly with Cormetech for a replacement, which also failed before the end of
its expected life. KCP&L’s claim against B&W resulted in a $3.5 million
meditation settlement. B&W sued Cormetech; the case was dismissed without
prejudice pursuant to the parties’ tolling agreement while B&W pursued
mediation with KCP&L. After those efforts resulted in the settlement,
B&W reinstituted the action within the agreed period. Following discovery
the district court granted Cormetech summary judgment, finding a
breach-of-warranty claim time-barred and that an indemnification claim failed
for lack of evidence that B&W’s losses resulted from a defect in goods or
services purchased from Cormetech. The Sixth Circuit vacated, finding that the
court erred by failing to view the record in the light most favorable to the
nonmovant.
Lake
v. Wexford Health Sources, Inc.
Court:
U.S. Court of Appeals for the Seventh Circuit
Docket:
15-2360
Opinion
Date: February 15, 2017
Areas
of Law: Civil Rights, Constitutional Law, Medical Malpractice
Lake,
a prisoner at Illinois’ Hill Correctional Center, claimed, in his suit under 42
U.S.C. 1983, that Dr. Jackson, the prison’s dentist had refused to send him to
an outside dentist to extract a decayed tooth that was causing him pain. Lake
claimed that Wexford, the contractor serving the prison, has policy of
withholding medical care to save money. Although Dr. Jackson assured him that
his mouth could be numbed successfully, Lake refused to let her pull the tooth
and complained to Wexford that he was suffering needlessly because of its
refusal to provide him with outside treatment. Lake later agreed to let a
different prison dentist extract the tooth. A local anesthetic was used during
the extraction, but Lake complained afterward that the procedure had been
painful. The Seventh Circuit affirmed summary judgment, rejecting Lake’s
claims, and agreeing that a jury would have to find that Dr. Jackson had been
exercising professional judgment in predicting that administering a local
anesthetic would enable her to extract the decayed tooth without inflicting
significant pain.
Jones
v. Coleman
Court:
U.S. Court of Appeals for the Sixth Circuit
Docket:
16-5908
Opinion
Date: February 15, 2017
Areas
of Law: Civil Procedure, Civil Rights, Constitutional Law, Election Law
White
County parents formed the Association for Accurate Standards in Education
(AASE) to oppose another group advocating for removal of a social studies
textbook that includes discussion of Islam. Eight part-time volunteers comprise
AASE. It does not have a separate bank account and does not keep regular
records. Five or six people have donated to AASE. No individual donation has
exceeded $200; total donations have not reached $500. Seats on the Board of
Education were up for election in 2016. AASE parents wanted to support and
oppose candidates through AASE. They did not want AASE to make direct campaign
contributions, but wanted AASE to spend less than $250 on independent
expenditures, including yard signs, stickers, and brochures. They learned that
the Tennessee Registry of Election Finance had fined Williamson Strong, an
unincorporated group that disseminates information about candidates and issues
in Williamson County, $5,000 for failing to certify a treasurer or file
financial disclosure statements under Tenn. Code 2-10-102(12)(A), which defines
a political campaign committee as: A combination of two or more individuals . .
. to support or oppose any candidate. They sued the Registry’s officials in
their official capacities under 42 U.S.C. 1983, claiming that the Act violates
their First Amendment, equal protection, and due process rights. The district
court stayed the case pending the outcome of the state administrative
proceedings in the Williamson Strong case. The Sixth Circuit reversed.
Abstention was improper in this case, in light of the Act’s alleged chilling
effects.
http://j.st/4bQf
Appling
v. Lamar, Archer & Cofrin, LLP
Docket:
16-11911
Opinion
Date: February 15, 2017
Areas
of Law: Bankruptcy
Debtor
made false oral statements to his lawyers, Lamar, Archer & Cofrin, LLP,
that he expected a large tax refund that he would use to pay his debt to the
firm. Debtor filed for bankruptcy after Lamar obtained a judgment for the debt.
Lamar then initiated an adversary proceeding to have the debt ruled
nondischargeable. The bankruptcy court and the district court determined that
the debt could not be discharged under 11 U.S.C. 523(a)(2)(A) because it was
incurred by fraud. The court reversed and remanded, concluding that debtor's
debt to Lamar can be discharged in bankruptcy. In this case, because a
statement about a single asset can be a "statement respecting the debtor's
. . . financial condition," and because debtor's statements were not in
writing, his debt can be discharged under section 523(a)(2)(B).
Lunsford,
Sr. v. Process Technologies Services
Docket:
16-11578
Opinion
Date: February 15, 2017
Areas
of Law: Bankruptcy
After
Process Technologies obtained a judgment in state court against debtor for
violations of state securities laws, debtor filed for bankruptcy. Process
Technologies then filed an adversary proceeding, arguing that 11 U.S.C.
523(a)(19)(A) barred debtor from discharging the debt. The court concluded that
debtor cannot discharge his debt because the bankruptcy court made a finding of
fact that debtor violated securities laws and, in the alternative, section
523(a)(19)(A) applies irrespective of whether debtor violated securities laws.
The court also concluded that debtor is not entitled to leave to amend his
complaint. Accordingly, the court affirmed the bankruptcy court's order that
excepted the debt from discharge and denied leave to amend.
Edward
Lewis Tobinick, MD v. Novella
Docket:
15-14889
Opinion
Date: February 15, 2017
Areas
of Law: Business Law, Constitutional Law
This
case stems from a dispute between two doctors regarding the medical viability
of a novel use for a particular drug. The Tobinick Appellants filed suit
against the Novella Appellees, and Yale, challenging Dr. Novella's article
criticizing Dr. Tobinick's novel treatments. The Tobinick Appellants then filed
an amended complaint to add allegations relating to Dr. Novella's second
article that was published just nine days prior. The court concluded that,
because the Tobinick Appellants have not demonstrated a probability of success
on the actual malice issue, the district court did not err in granting Dr.
Novella's special motion to strike the state law claims pursuant to
California's anti-SLAPP statute, Cal. Civ. Proc. Code 425.16(a); even though
Dr. Novella had not yet filed his answer, the district court did not abuse its
discretion in twice denying the Tobinick Appellants' motion for leave to amend
the operative complaint because it properly sought to prevent an undue delay
caused by the Tobinick Appellants' last-minute attempts to amend their
complaint; the district court did not abuse its discretion in denying each of
the Tobinick Appellants' discovery-related requests for relief; and the court
rejected the Tobinick Appellants' Lanham Act, 15 U.S.C. 1125(a) claims.
Accordingly, the court affirmed in all respects.
Wollschlaeger
v. Governor of the State of Florida
Docket:
12-14009
Opinion
Date: February 16, 2017
Areas
of Law: Civil Rights, Constitutional Law
This
case concerns certain provisions of Florida's Firearms Owners' Privacy Act
(FOPA), Fla. Stat. 790.338, 456.072, 395.1055, & 381.026. The district
court held that FOPA's record-keeping, inquiry, anti-discrimination, and
anti-harassment provisions violated the First and Fourteenth Amendments, and
permanently enjoined their enforcement. Exercising plenary review and applying
heightened scrutiny as articulated in Sorrell v. IMS Health, Inc., the court
agreed with the district court that FOPA's content-based restrictions—the
record-keeping, inquiry, and anti-harassment provisions—violate the First
Amendment as it applies to the states. The court explained that, because these
three provisions do not survive heightened scrutiny under Sorrell, the court
need not address whether strict scrutiny should apply to them. The court
concluded, however, that FOPA's anti-discrimination provision—as construed to
apply to certain conduct by doctors and medical professionals—is not
unconstitutional. Finally, the court concurred with the district court's
assessment that the unconstitutional provisions of FOPA can be severed from the
rest of the Act. Accordingly, the court affirmed in part, reversed in part, and
remanded so that the judgment and permanent injunction can be amended in
accordance with this opinion.
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