Articles Posted in Legal Research


Stanton v. Sims, United States Supreme Court (11/4/13)
Civil Rights, Constitutional Law, Criminal Law

GateOfficer Stanton and his partner responded to a call about a disturbance involving a person with a baseball bat. Stanton was familiar with the LaMesa neighborhood, known for gang violence. The officers, wearing uniforms and driving a marked police vehicle, approached the location and noticed men walking in the street. Seeing the police car, two men turned into an apartment complex. Patrick crossed the street about 25 yards in front of Stanton’s car and ran toward a residence. Stanton did not see a baseball bat, but considered Patrick’s behavior suspicious and decided to investigate. Stanton exited his car, called out “police,” and ordered Patrick to stop. Patrick did not stop, but “looked directly at Stanton,” and went through the gate of the six-foot wooden fence enclosing Sims’ front yard. Stanton believed that Patrick had committed a jailable misdemeanor by disobeying his order, “fear[ed] for [his] safety” and made the “split-second decision” to kick open the gate. Sims was behind the gate when it flew open, striking and injuring Sims. Sims sued under 42 U.S.C 1983. The district court granted summary judgment to Stanton. The Ninth Circuit reversed, holding that Stanton’s warrantless entry was unconstitutional because Sims had the same expectation of privacy in her curtilage as in her home itself, there was no immediate danger, and Patrick had committed only a minor offense; under clearly established law Stanton’s pursuit of Patrick did not justify warrantless entry and Stanton was not entitled to qualified immunity. The Supreme Court reversed, noting that courts nationwide are divided on whether an officer with probable cause to arrest a suspect for a misdemeanor may enter a home without a warrant while in hot pursuit of that suspect. The Ninth Circuit read “too broadly” Supreme Court precedent that did not involve hot pursuit. The Court did not determine whether Stanton’s entry was constitutional; Stanton may have been mistaken in believing his actions were justified, but was not “plainly incompetent.”

Read more: High court rules for police in chase of suspect onto private property

Posted in: Legal Research

Money RoadCourthouse News reported this week on the “land grab” in California’s local court systems. When the courts announced last year that they were killing the CCMS (California Case Management System), vendors pounced on the opportunity to provide contracted solutions in its place. CCMS was a project started by the California courts over ten years ago. It was intended to link all of the county and state courthouses together into a centralized docketing system. As Courthouse news reports, however,

The massive CCMS project was deep-sixed last year by the Judicial Council under pressure from the Legislature, after the Administrative Office of the Courts had spent $520 million in taxpayer money over ten years on a project that was nowhere near completion and carried a projected price tag of $1.9 billion.

Now that CCMS is dead, Courts are turning to the private sector to update their docketing systems, which languished while waiting for the new system. Three bidders have emerged as candidates for the new systems: New Mexico-based Justice Systems Inc., Texas-based Tyler Technologies, and Pennsylvania-based LT-Tech owned by Thomson Reuters (formerly West Publishing). According to Courthouse News, “The deals have three basic financial components, licensing and installation for millions of dollars, yearly upkeep for hundreds of thousands of dollars, and, a golden egg, the right to charge lawyers a fee, generally around $5, for every document electronically filed.”

Posted in: Legal Research

IMO Advisory Letter No. 3-11 and Opinion No. 12-08 of the Supreme Court Advisory Committee on Extrajudicial Activities, New Jersey Supreme Court (9/19/13)
In this appeal, the Supreme Court held that a judge’s acting and comedy career is incompatible with the Code of Judicial Conduct and therefore he may not serve as a municipal court judge while continuing with that career.

Read More: Municipal judge resigns after top state court says he can’t moonlight as stand-up comic

United States v. Melvin, US 1st Cir. (9/17/13)
Civil Rights, Constitutional Law, Criminal Law

Defendant was indicted on a single count of possessing cocaine with intent to distribute. That same day, law enforcement officers interviewed Defendant at a proffer session, which was held pursuant to a written proffer agreement. The government promised Defendant it would not use against him any “statements made or other information” disclosed at the proffer session. After the proffer session failed, Defendant proceeded to trial. Despite its earlier assurances, the government presented at trial voice identification testimony from a police officer based on what the officer had heard at the proffer session. The testimony linked Defendant to an incriminating recorded telephone conversation. The jury found Defendant guilty. The First Circuit Court of Appeals vacated Defendant’s conviction, holding (1) admission of the testimony violated the proffer agreement and Defendant’s due process rights; and (2) the error was not harmless beyond a reasonable doubt. Remanded.

In re:  Miller, US 3rd Cir. (9/16/13)
Bankruptcy, Legal Ethics

The Millers retained Ettinger in 2008 to represent them in a landlord/tenant dispute. Over 23 months, Ettinger billed $43,000. The dispute settled for $9,500. The Millers paid Ettinger $20,000, but even before the landlord-tenant matter settled, Ettinger sought relief in Pennsylvania state court to accelerate the speed at which he was paid. He petitioned to withdraw as a counsel, first based on alleged failure to pay and then due to professed “lack of cooperation.” Both petitions were rejected, though the Millers were ordered to make “good faith” payments. Despite their continued payments, Ettinger sued the Millers, who filed for Chapter 7 bankruptcy protection the following month. Ettinger filed an adversary proceeding in the Bankruptcy Court to prevent discharge of the Millers’ remaining debt to him, alleging fraud. The Bankruptcy Court rejected the complaint and imposed a $20,000 sanction against Ettinger jointly with his attorney. The district court vacated on the ground that the sanctions violated the “safe harbor” requirements of Fed. R. Bankr. P. 9011, which requires 21 days between serving and filing a sanctions motion, during which period the challenged conduct may be remedied, but refused to remand for further consideration. The Third Circuit remanded with instructions to permit the Bankruptcy Court to consider alternative avenues to impose sanctions.

Posted in: Legal Research

Seaton v. TripAdvisor,  US 6th Cir. (8/28/13)
Communications Law, Constitutional Law, Injury Law, Internet Law

broomGrand Resort, which has operated in the Great Smoky Mountains since 1982, claims that TripAdvisor’s publication of a survey that concluded that Grand Resort was the dirtiest hotel in America caused irreparable damage to its business and that TripAdvisor used a flawed rating system that distorted actual performance and perspective. The district court dismissed, reasoning that the “dirtiest hotels” list is protected opinion; it reflects TripAdvisor’s users’ subjective opinions and is not capable of being defamatory. The court rejected a motion to amend to add claims of trade libel-injurious falsehood and tortious interference with prospective business relationships to the claims of false light-invasion of privacy and of defamation. The Sixth Circuit affirmed, noting that amendment of the complaint would be futile.


Shore v. Maple Lane Farms, LLC, Tennessee Supreme Court (8/19/13)
Agriculture Law, Injury Law, Zoning, Planning & Land Use

Certain amplified music concerts were conducted on farm land in a rural county. The county board of zoning appeals later ordered the business owners who hosted the concerts to limit the concerts to one per year, but the business owners defied the order. Plaintiff, a neighborhood property owner, filed suit seeking to enforce the zoning authority’s decision and to abate the concerts as a common-law nuisance. The trial court granted Defendants’ motion to dismiss, concluding (1) the concerts were exempted from local land use regulations because they qualified as “agriculture”; and (2) the Tennessee Right to Farm Act (Act) precluded nuisance liability. The Supreme Court reversed, holding (1) the concerts were not “agriculture” for the purpose of the zoning laws; and (2) the Act did not apply to the music concerts, and Plaintiff presented a prima facie case of common-law nuisance. Remanded

Read More: State high court: Music festivals on farms not shielded from nuisance complaints

Balintulo v. Daimler AG, US 2nd Cir. (8/21/13)
Class Action, Injury Law, International Law

Plaintiffs filed putative class-action suits over ten years ago under the Alien Tort Statute (ATS), 28 U.S.C. 1350, on behalf of those harmed by the South African legal regime known as “apartheid.” Plaintiffs asserted that defendants aided and abetted violations of customary international law committed by the South African government by selling cars and computers to the South African government. Defendants petitioned for mandamus relief. The court concluded that, in light of the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co., issuance of the writ was unnecessary in this case because defendants have an adequate means of relief through a motion for judgment on the pleadings; plaintiffs’ arguments that Kiobel did not apply where defendants were American citizens, or where the case involved American interests, were without merit; and, because the Kiobel decision plainly foreclosed plaintiffs’ claims as a matter of law, the court need not consider whether defendants have asserted a valid basis for “collateral order” jurisdiction under 28 U.S.C. 1291. Accordingly, the court denied the petition for mandamus relief and vacated the stay placed by the court on proceedings in the district court.

Read More: High Court Decision Cited in Rejection of Apartheid Liability


Seltzer v. Green Day, Inc., et al., US 9th Cir. (8/7/13)
Copyright, Intellectual Property, Trademark

Plaintiff filed suit against Green Day and others, alleging violations of the Copyright Act, 17 U.S.C. 101 et seq., aCopyright Symbolnd the Lanham Act, 15 U.S.C. 1051 et seq., because Green Day used plaintiff’s illustration, “Scream Icon,” in the video backdrop of its stage show. On appeal, plaintiff challenged the district court’s grant of summary judgment in favor of Green Day on all claims and the grant of attorney’s fees to Green Day under the Copyright Act. The court concluded that Green Day’s use of the illustration was fair use under the Copyright Act where the purpose and character of the use was transformative and not overly commercial; the nature of the work included its status as a widely disseminated work of street art; Green Day’s use of the work was not excessive in light of its transformative purpose; and Green Day’s use did not affect the value of the piece or of plaintiff’s artwork in general. In regards to plaintiff’s claims under the Lanham Act, the court concluded that plaintiff failed to establish any trademark rights. The court concluded, however, that the district court clearly erred in finding that plaintiff’s claims were objectively unreasonable. Accordingly, the court affirmed the district court’s grant of summary judgment but vacated the award of attorneys fees.

Read More: Green Day not liable for using artist’s work at concerts

Miami Valley Fair Hous. Ctr., Inc. v. Connor Grp., US 6th Cir. (8/5/13)
Civil Rights, Landlord-Tenant, Zoning, Planning & Land Use

Connor Group owns and manages about 15,000 rental units throughout the U.S., including about 1,900 in the Dayton area. Its rental agent posted an ad on Craigslist: 599/1br – Great Bachelor Pad! (Centerville) … Our one bedroom apartments are a great bachelor pad for any single man looking to hook up. This apartment includes a large bedroom, walk in closet, patio, gourmet kitchen, washer dryer hook up and so much more….  A fair-housing organization sued, charging violation of the Fair Housing Act’s section 3604(c) and Ohio’s Revised Code section 4112.02(H)(7), claiming that the bachelor pad ad was facially discriminatory to families and women. The court provided a jury instruction that “The question is not whether the particular advertisement discourages some potential renters from applying … but whether such discouragement is the product of any discriminatory statement or indication in the advertisement. If an ordinary reader who is a member of a protected class would be discouraged from answering the advertisement because of some discriminatory statement or indication contained therein, then the fair housing laws have been violated.” The trial court ruled in favor of the landlord. The Sixth Circuit reversed and remanded for a new trial based on the erroneous instruction.

Read More: Ohio fair housing group gets new trial in discrimination suit over ‘bachelor pad’ apartment ad


Brown v. Electronic Arts, Inc., US 9th Cir. (7/31/13)
Civil Rights, Constitutional Law, Consumer Law, Entertainment & Sports Law, Intellectual Property, Trademark

Football ConceptRetired Hall of Fame football player, James “Jim” Brown, filed suit against EA, alleging that EA violated section 43(a) of the Lanham Act, 15 U.S.C. 1125(a), through the use of Brown’s likeness in EA’s “Madden NFL” series of football video games. The court rejected the “likelihood of confusion” test and the “alternative means” test, concluding that the only relevant legal framework for balancing the public’s right to be free from consumer confusion about Brown’s affiliation with “Madden NFL” and EA’s First Amendment rights in the context of Brown’s section 43(a) claim was the Rogers v. Grimaldi test. Applying the Rogers test, the court concluded that the use of Brown’s likeness was artistically relevant to the “Madden NFL” games and that there were no alleged facts to support the claim that EA explicitly mislead consumers as to Brown’s involvement with the games. In this case, the public interest in free expression outweighed the public interest in avoiding consumer confusion. Accordingly, the court affirmed the district court’s grant of EA’s motion to dismiss.

NCAA Licensing Litigation, US 9th Cir. (7/31/13)
Civil Rights, Class Action, Constitutional Law, Consumer Law, Entertainment & Sports Law, Intellectual Property, Trademark

Former starting quarterback for Arizona State University, Samuel Keller, filed a putative class action suit against EA, alleging that EA violated his right of publicity under California Civil Code 3344 and California common law by using Keller’s likeness as part of the “NCAA Football” video game series. EA moved to strike the complaint as a strategic lawsuit against public participation (SLAPP) under California’s anti-SLAPP statute, Cal. Civ. Proc. Code 425.16. The court concluded that EA could not prevail as a matter of law based on the transformative use defense where EA’s use did not qualify for First Amendment protection because it literally recreated Keller in the very setting in which he had achieved renown. The court also concluded that, although there was some overlap between the transformative use test and the Rogers v. Grimaldi test, the Rogers test should not be imported wholesale to the right-of-publicity claims. Finally, the court concluded that state law defenses for reporting of information did not protect EA’s use. Accordingly, the court affirmed the district court’s denial of the motion to strike the complaint.

Read More: Ninth Circuit Sides With Athletes in EA Video Games Case


US Great SealThere’s great news out of Washington today on the open government and transparency front. House Speaker John Boehner  and Majority Leader Eric Cantor have announced via press release that the United States Code (the “Code”) will now be available for download in XML format.

Users will be able to download individual sections of the Code or, if desired, the entire corpus. Check it out at the Office of Law Revision Counsel site here.  The Code uses the USLM Schema and is explained in greater detail in a user guide that is also available at the Law Revision Counsel site.  For rendering the XML files, a CSS stylesheet is also provided.

Here’s hoping we see lots new great applications and tools from this release!


papersThe Foreign Intelligence Surveillance Court has created a public docket for declassified opinions.

The documents have been released through the efforts of providers like Yahoo, Microsoft, and Google, as well as advocacy groups like the ACLU and the EFF, who filed requests to publish the opinions and filings in the FISC. Since FISA was enacted, the FISC and FISA Court of Review have only released a handful of opinions. The public docket gives us insight into the secret activities of the courts and their litigants.

The docket includes the following cases:


Hobbs v. John, U.S. 7th Cir. (7/17/13)
Copyright, Entertainment & Sports Law

Hammer and SickleIn 1982 Hobbs was working as a photographer on a Russian cruise ship where he had a brief affair with a Russian waitress. Based on the experience, he wrote a song, “Natasha” about an ill-fated romance between a man from the U.K. and a Ukrainian woman. In 1983, he registered his copyright to “Natasha” in the United Kingdom and sent the song to several music publishers, including a company that published songs composed by Elton John and Bernard Taupin. Hobbs’s efforts to find a publisher for “Natasha” were unsuccessful. In 1985, Elton John released his very successful song, “Nikita,” in which a singer from “the west” describes his love for Nikita, whom the singer saw “by the wall” and who is on the other side of a “line” held in by “guns and gates.” Hobbs filed a copyright infringement claim 27 years later. The district court dismissed. The Seventh Circuit affirmed, finding that the songs were not substantially similar. The Copyright Act does not protect general ideas, such as a romance between a western man and a woman from behind the iron curtain, but only the particular expression of an idea.