Articles Tagged with Justia Weekly Writers' Picks

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Makowski v. Granholm, Michigan Supreme Court (6/3/14)
Constitutional Law, Criminal Law

Great Seal of MichiganPlaintiff-appellant Matthew Makowski filed an action in the Court of Claims against the Governor and the Secretary of State, seeking a declaratory judgment and injunctive relief to reverse then-Governor Jennifer Granholm’s decision to revoke her commutation of plaintiff’s nonparolable life sentence that had been imposed for his first-degree murder and armed robbery convictions. The Governor had signed the commutation, it was signed by the Secretary of State and affixed with the Great Seal. Four days later, the Governor decided to revoke the order, and all copies of the commutation certificate were destroyed. Plaintiff alleged that the commutation was final when it was signed, sealed, and delivered to the Department of Corrections, and argued the Governor lacked the authority to revoke a completed commutation. The court granted defendants’ motion for summary judgment, concluding that it lacked jurisdiction to review the governor’s exercise of discretion over commutation decisions. Plaintiff appealed. The Court of Appeals affirmed, holding that the Governor’s exercise of the commutation power presented a nonjusticiable political question. After its review, the Supreme Court concluded the Constitution did not give the Governor the power to revoke a validly granted commutation: “[b]ecause the Governor signed plaintiff’s commutation and delivered it to the Secretary of State, where it was signed and affixed with the Great Seal, plaintiff was granted an irrevocable commutation of his sentence.”

Read More: Michigan Supreme Court: Granholm wrongly revoked prisoner’s commutation

Limelight Networks, Inc. v. Akamai Techs, Inc., US Supreme Court (6/2/14)
Intellectual Property, Patents

Akamai is the exclusive licensee of a patent that claims a method of delivering electronic data using a content delivery network (CDN). Limelight also operates a CDN and carries out several of the steps claimed in the patent, but its customers, rather than Limelight itself, perform a step of the patent known as “tagging.” Under Federal Circuit case law, liability for direct infringement under 35 U.S.C. 271(a) requires performance of all steps of a method patent to be attributable to a single party. The district court concluded that Limelight could not have directly infringed the patent at issue because performance of the tagging step could not be attributed to it. The en banc Federal Circuit reversed, holding that a defendant who performed some steps of a method patent and encouraged others to perform the rest could be liable for inducement of infringement even if no one was liable for direct infringement. The Supreme Court reversed. A defendant is not liable for inducing infringement under section 271(b) when no one has directly infringed. The Federal Circuit’s contrary view would deprive section 271(b) of ascertainable standards and require the courts to develop parallel bodies of infringement law. Citing section 271(f), the Court stated that Congress knows how to impose inducement liability predicated on noninfringing conduct when it wishes to do so. Though a would-be infringer could evade liability by dividing performance of a method patent’s steps with another whose conduct cannot be attributed to the defendant, a desire to avoid this consequence does not justify fundamentally altering the rules of inducement liability clearly required by the Patent Act’s text and structure.

Read More: No liability for induced infringement when company and customer split patented steps, SCOTUS says

Wilkins v. United States, US 1st Cir. (6/3/14)
Criminal Law


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Robinson v. Legro, Colorado Supreme Court (5/27/14)
Injury Law

Pug PackA bicyclist was attacked by two ranch dogs herding sheep while participating in a mountain bike race. The cyclist and dogs were on federally owned land on which the attack took place, subject to a sheep grazing permit and a recreational use permit. The cyclist sustained serious injuries during the attack. The cyclist and her husband sued the dog’s owners, alleging negligence, negligence per se and loss of consortium. They also brought a strict liability claim under Colorado’s dog bite statute. The shepherds moved for summary judgment, arguing that: (1) the Colorado Premises Liability Act preempted the cyclist’s common law claims; and (2) they were immune from strict liability under the working-dog exemption to the dog bite statute. The district court granted the shepherds’ motion. The court of appeals reversed, interpreting the working dog exemption as applicable only when the dog is on the owner’s own property. The Supreme Court disagreed and reversed the appellate court: the exemption applied when a dog bite occurs on the dog owner’s property or when the dog is working under the control of the dog owner.


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Petrella v. Metro-Goldwyn-Mayer, Inc., US Supreme Court (5/19/14)
Civil Procedure, Copyright, Entertainment & Sports Law

Copyright SymbolThe Copyright Act protects works published before 1978 for 28 years, renewable for up to 67 years, 17 U.S.C. 304(a). An author’s heirs inherit renewal rights. If an author who has assigned rights dies before the renewal period the assignee may continue to use the work only if the author’s successor transfers renewal rights to the assignee. The Act provides for injunctive relief and damages. Civil actions must be commenced within three years after the claim accrued-ordinarily when an infringing act occurred. Under the separate-accrual rule, each successive violation starts a new limitations period, but is actionable only within three years of its occurrence. The movie, Raging Bull, is based on the life of boxer Jake LaMotta, who, with Petrella, told his story in a screenplay copyrighted in 1963. In 1976 they assigned their rights and renewal rights to MGM. In 1980 MGM released, and registered a copyright in, Raging Bull. Petrella died during the initial copyright term, so renewal rights reverted to his daughter, who renewed the 1963 copyright in 1991. Seven years later, she advised MGM that it was violating her copyright. Nine years later she filed suit, seeking damages and injunctive relief for violations occurring after January 5, 2006. The district court dismissed, citing laches. The Ninth Circuit affirmed. The Supreme Court reversed. Laches cannot bar a claim for damages brought within the three-year window. By permitting retrospective relief only three years back, the limitations period takes account of delay. Noting the “essentially gap-filling, not legislation-overriding,” nature of laches, the Court stated that it has never applied laches to entirely bar claims for discrete wrongs occurring within a federally prescribed limitations period. It is not incumbent on copyright owners to challenge every actionable infringement; there is nothing untoward about waiting to see whether a violation undercuts the value of the copyrighted work, has no effect, or even complements the work. The limitations period, with the separate-accrual rule, allows an owner to defer suit until she can estimate whether litigation is worth the effort. Because a plaintiff bears the burden of proof, evidence unavailability is as likely to affect plaintiffs as defendants. The Court noted that in some circumstances, the equitable defense of estoppel might limit remedies. Allowing this suit to proceed will put at risk only a fraction of what MGM has earned from Raging Bull and will work no unjust hardship on innocent third parties. Should Petrella prevail on the merits, the court may fashion a remedy taking account of the delay and MGM’s alleged reliance on that delay.

Read More: ‘Raging Bull’ copyright suit isn’t barred by doctrine of laches, SCOTUS rules


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Bain, et al. v. MJJ Productions, Inc., et al., US DC Cir. (05/13/14)
Civil Procedure

gavelRaymone Bain and her firm filed suit against Michael Jackson and his production company, MJJ Productions, Inc., claiming to be owed substantial sums for various services rendered. Defendants moved to dismiss, relying principally on a December 2007 release agreement where Bain broadly relinquished any claims against Jackson and his business entities. The district court granted summary judgment in favor of MJJ, holding that the release agreement precluded Bain’s claims. Bain moved for relief from judgment under Rule 60(b)(2) five months later. The “newly discovered evidence” cited by Bain was an April 2008 letter from Jackson to Bain, in which Jackson stated that he had no awareness of, and had never signed, the release agreement on which the district court had grounded its grant of summary judgment. The district court held that a movant’s awareness of evidence automatically precludes relief under Rule 60(b)(2), regardless of the evidence’s availability. The court found that to be an unduly constricted understanding of “newly discovered evidence” for purposes of Rule 60(b)(2). The court concluded, however, that the district court committed no abuse of discretion by looking beyond Bain’s efforts in searching her own files and considering whether she mentioned the letter to the court or sought its assistance in locating the evidence. Because Bain failed to exercise reasonable diligence in seeking out the letter, the court affirmed the judgment of the district court.

Read More: Michael Jackson’s Former Publicist Can’t Revive $44 Million Lawsuit

Bickley v. Dish Network, US 6th Cir. (5/13/14)
Banking, Communications Law, Consumer Law

American Satellite, a third party retailer of Dish Network satellite television services, received a call from a potential customer. A woman, who identified herself as “Dickley,” provided what she claimed to be her social security number. In actuality, the number belonged to a man named Bickley. Dickley was an identity thief. The agent entered Dickley’s name and social security number into an interface that connects to credit reporting agencies. Unable to verify the information, American Satellite informed Dickley that her attempt to open an account was declined. Bickley later received a credit report indicating that Dish had made an inquiry on his name. Dish informed him that someone had attempted to open an account in his name, providing a recording of the conversation between the agent and the identity thief. A year later, despite knowing that the inquiry had prevented the theft of his identity, Bickley filed suit under the Fair Credit Reporting Act, 15 U.S.C. 1681b, alleging request and use of his credit report without a “permissible purpose” and sought emotional distress damages. The district court entered summary judgment for Dish, including a counterclaim for abuse of process. The Sixth Circuit affirmed, referring to the conspicuous underdevelopment of key factual detail in Bickley’s complaint and in briefs as “bordering on deceitful” and to the adage that no good deed goes unpunished.


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Town of Greece v. Galloway, United States Supreme Court (5/5/14)
Constitutional Law, Government & Administrative Law

PrayerSince 1999, Greece, New York has opened monthly town board meetings with a roll call, recitation of the Pledge of Allegiance, and a prayer by a local clergy member. While the prayer program is open to all creeds, nearly all local congregations are Christian. Citizens alleged violation of the First Amendment’s Establishment Clause by preferring Christians over other prayer givers and by sponsoring sectarian prayers and sought to limit the town to “inclusive and ecumenical” prayers that referred only to a “generic God.” The district court entered summary judgment upholding the prayer practice. The Second Circuit reversed, holding that some aspects of the prayer program, viewed in their totality by a reasonable observer, conveyed the message that the town endorsed Christianity.  A divided Supreme Court reversed, upholding the town’s practice. Legislative prayer, while religious in nature, has long been understood as compatible with the Establishment Clause. Most states have also had a practice of legislative prayer and there is historical precedent for opening local legislative meetings with prayer. Any test of such a practice must acknowledge that it was accepted by the Framers and has withstood the scrutiny of time and political change. The inquiry is whether the town of Greece’s practice fits within that tradition. To hold that invocations must be nonsectarian would force legislatures sponsoring prayers and courts deciding these cases to act as censors of religious speech, thus involving government in religious matters to a greater degree than under the town’s current practice of neither editing nor approving prayers in advance nor criticizing their content after the fact. It is doubtful that consensus could be reached as to what qualifies as a generic or nonsectarian prayer. The First Amendment is not a “majority rule” and government may not seek to define permissible categories of religious speech. The relevant constraint derives from the prayer’s place at the opening of legislative sessions, where it is meant to lend gravity  and reflect values long part of the Nation’s heritage. Absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based only on the content of a particular prayer will not likely establish a constitutional violation. If the town maintains a policy of nondiscrimination, the Constitution does not require it to search beyond its borders for non-Christian prayer givers to achieve religious balance.


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Envtl. Prot. Agency v. EME Homer City Generation, L. P., United States Supreme Court (4/29/14)
Environmental Law, Government & Administrative Law

smoke-plume-1428335-mThe Clean Air Act (CAA) requires national ambient air quality standards (NAAQS) for pollutants at levels that will protect public health, 42 U.S.C. 7408. Once EPA establishes NAAQS, it designates “nonattainment” areas; each state must submit a State Implementation Plan, (SIP), within three years of any new or revised NAAQS. From the date EPA determines that a SIP is inadequate, EPA has two years to promulgate a Federal Implementation Plan (FIP). SIPs must comply with a Good Neighbor Provision, and “contain adequate provisions … prohibiting .. . any source or other type of emissions activity within the State from emitting any air pollutant in amounts which will … contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to” NAAQS. In response to flaws in its 2005 Clean Air Interstate Rule, identified by the D. C. Circuit, EPA promulgated the Cross-State Air Pollution Rule (Transport Rule), curbing nitrogen oxide and sulfur dioxide emissions in 27 upwind states to achieve downwind attainment of three NAAQS and providing that an upwind state contributed significantly to downwind nonattainment if its exported pollution produced at least one percent of a NAAQS in a downwind state and could be eliminated cost-effectively. EPA created an annual emissions “budget” for each upwind state and contemporaneously promulgated FIPs allocating each state’s budget among its pollution sources. The D.C. Circuit vacated the rule as exceeding EPA’s authority. The Supreme Court reversed. The CAA does not require that states be given another opportunity to file a SIP after EPA has quantified interstate pollution obligations. Disapproval of a SIP, without more, triggers EPA’s obligation to issue a FIP within precise deadlines. That EPA had previously accorded upwind states a chance to allocate emission budgets among their sources does not show that it acted arbitrarily by refraining to do so in this instance. The Good Neighbor Provision does not dictate a method of apportionment, so EPA had authority to select from among reasonable options; nothing precludes the final calculation from relying on costs. By imposing uniform cost thresholds on regulated states, the rule is efficient and is stricter on states that have done less pollution control in the past and does not amount to “over-control.”

Read More: Justices Back Rule Limiting Coal Pollution

Highmark, Inc. v. Allcare, United States Supreme Court (4/29/14)
Patents

The Patent Act provides: “The court in exceptional cases may award reasonable attorney fees to the prevailing party,” 35 U.S.C. 285. The Federal Circuit has interpreted section 285 as authorizing fee awards only “when there has been some material inappropriate conduct,” or when it is both “brought in subjective bad faith” and “objectively baseless.” A health insurance company obtained a declaratory judgment that a patent was invalid and not infringed. The district court found the case “exceptional” and awarded attorney fees of $4,694,727.40, $209,626.56 in expenses, and $375,400.05 in expert fees. The court found a pattern of “vexatious” and “deceitful” conduct by the defendant in attempting to force other companies to purchase licenses, even after its own experts determined that its claims lacked merit. The Federal Circuit reviewed the determination de novo and reversed in part. A unanimous Supreme Court vacated. All aspects of a district court’s exceptional-case determination should be reviewed for abuse of discretion. That determination is based on statutory text that emphasizes that the district court is better positioned to make the “multifarious and novel” determination, which is not susceptible to “useful generalization” of the sort that de novo review provides, and is “likely to profit from the experience that an abuse-of discretion rule will permit to develop.” The word “exceptional” should be given its ordinary meaning: “one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated,” considering the totality of the circumstances.

Octane Fitness, LLC v. ICON Health & Fitness, Inc., United States Supreme Court (4/29/14)
Patents

The Patent Act authorizes district courts to award attorney’s fees to prevailing parties in “exceptional cases,” 35 U.S.C. 285. In Brooks Furniture, the Federal Circuit defined an “exceptional case” as one which either involves “material inappropriate conduct” or is both “objectively baseless” and “brought in subjective bad faith” as shown by clear and convincing evidence. ICON sued Octane for patent infringement. The district court granted summary judgment to Octane, but denied attorney’s fees under section 285. The Federal Circuit affirmed. The Supreme Court reversed, finding the Brooks Furniture framework “unduly rigid’  in light of the statutory grant of discretion to district courts. Section 285 imposes only one constraint on the award of attorney’s fees, limiting it to “exceptional” cases. Because the Patent Act does not define “exceptional,” the term should be given it ordinary meaning: “uncommon,” “rare,” or “not ordinary.” An “exceptional” case is simply one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both governing law and the facts) or the unreasonable manner in which the case was litigated. District courts may determine whether a case is “exceptional” in the case-by-case exercise of their discretion, considering the totality of the circumstances. The Brooks Furniture standard was so demanding that it appeared to render section 285 superfluous of the courts’ inherent power to award fees in cases involving misconduct or bad faith. Section 285 imposes no specific evidentiary burden.

Read More About These Two Decisions: Watch Out Trolls: Supreme Court Expands Fee Shifting in Patent Cases


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1.23.12_Supreme_Court_Warrantless_GPS_TrackingLegal news coverage was dominated this week by the Supreme Court Shuette decision, which upheld Michigan’s affirmative action ban for college admissions. Read a summary below of the Court’s decision along with a few other interesting opinions picked out by our writers this week.

Schuette v. Coal. Defend Affirmative Action, Integration & Immigration Rights, Unites States Supreme Court (4/22/14)
Civil Rights, Constitutional Law, Education Law

After the Supreme Court decided that the University of Michigan’s undergraduate admissions plan’s use of race-based preferences violated the Equal Protection Clause, but that its law school admission plan’s limited use did not, Michigan voters adopted a new section of the state constitution (Proposal 2), prohibiting use of race-based preferences in the admissions process for state universities. The district court upheld Proposal 2, but the Sixth Circuit reversed, concluding that it violated Supreme Court precedent. The Supreme Court reversed. Justice Kennedy, with Chief Justice Roberts and Justice Alito, reasoned that the principle that consideration of race in admissions is permissible when certain conditions are met was not challenged; the issue was whether, and how, state voters may choose to prohibit consideration of such racial preferences. The decision by Michigan voters reflects an ongoing national dialogue; there was no infliction of a specific injury of the type at issue in cases cited by the Sixth Circuit. Individual liberty has constitutional protection, but the Constitution also embraces the right of citizens to act through a lawful electoral process, as Michigan voters did. Justices Scalia and Thomas stated that the question here, as in every case in which neutral state action is said to deny equal protection on account of race, is whether the challenged action reflects a racially discriminatory purpose. Stating that it did not, the Justices stated that the proposition that a facially neutral law may deny equal protection solely because it has a disparate racial impact “has been squarely and soundly rejected.” Justice Breyer agreed that the amendment is consistent with the Equal Protection Clause, but reasoned that the amendment only applies to, and forbids, race-conscious admissions programs that consider race solely in order to obtain the educational benefits of a diverse student body; the Constitution permits, but does not require, the use of that kind of race-conscious program. The ballot box, not the courts, is the instrument for resolving debates about such programs. This case does not involve a diminution of the minority’s ability to participate in the political process.

Read More: The Supreme Court Again Fractures Over Race


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State v. DeMarco, Connecticut Supreme Court (4/22/14)
Civil Rights, Constitutional Law, Criminal Law

Upon following up on complaints from Defendant’s neighbor relating to Defendant’s keeping of animals in his residence, a police officer concluded that a “welfare check” was necessary and made a warrantless entry into Defendant’s home. Defendant subsequently entered a plea of nolo contendere to two counts of cruelty to animals. Defendant appealed the trial court’s denial of his motion to suppress on the ground that the warrantless entry was justified under the emergency exception to the warrant requirement. The appellate court reversed, concluding that the evidence did not permit a finding that the police reasonably believed that a warrantless entry was necessary to help a person inside the dwelling who was in immediate need of assistance. The Supreme Court reversed, holding that the trial court properly concluded that, under the totality of the circumstances present in this case, a police officer reasonably would have believed that an emergency existed inside Defendant’s home.


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McCutcheon v. Fed. Election Comm’n, United States Supreme Court (4/2/14) Civil Rights, Communications Law, Constitutional Law, Election Law

JackpotThe Federal Election Campaign Act of 1971 and the Bipartisan Campaign Reform Act of 2002, impose base limits, restricting how much money a donor may contribute to a particular candidate or committee, and aggregate limits, restricting how much money a donor may contribute in total to all candidates or committees, 2 U.S.C. 441a. In the 2011–2012 election cycle, McCutcheon contributed to 16 federal candidates, complying with all base limits. He alleges that the aggregate limits prevented him from contributing to additional candidates and political committees and that he wishes to make similar contributions in the future. McCutcheon and the Republican National Committee challenged the aggregate limits under the First Amendment. The district court dismissed. The Supreme Court reversed, with five justices concluding that those limits are invalid. Regardless whether strict scrutiny or the “closely drawn” test applies, the analysis depends on the fit between stated governmental objectives and the means selected to achieve the objectives. The aggregate limits fail even under the “closely drawn” test. Contributing to a candidate is an exercise of the right to participate in the electoral process through political expression and political association. A restriction on how many candidates and committees an individual may support is not a “modest restraint.” To require a person to contribute at lower levels because he wants to support more candidates or causes penalizes that individual for “robustly exercis[ing]” his First Amendment rights. The proper focus is on an individual’s right to engage in political speech, not a collective conception of the public good. The aggregate limits do not further the permissible governmental interest in preventing quid pro quo corruption or its appearance. The justices noted the line between quid pro quo corruption and general influence and that the Court must “err on the side of protecting political speech.” Given regulations already in effect, fear that an individual might make massive unearmarked contributions to entities likely to support particular candidate is speculative. Experience suggests that most contributions are retained and spent by their recipients; the government provided no reason to believe that candidates or committees would dramatically shift their priorities if aggregate limits were lifted. Multiple alternatives could serve the interest in preventing circumvention without “unnecessary abridgment” of First Amendment rights, such as targeted restrictions on transfers among candidates and committees, tighter earmarking rules, and disclosure.

Read More: Supreme Court Strikes Down Limits on Campaign Contributions


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United States v. Bergman, US 10th Cir. (3/28/14)
Constitutional Law, Criminal Law

DishonestyDefendant-appellant Gwen Bergman was arrested when the hit-man she thought she hired to kill her husband was in fact an undercover police officer. After trial, it emerged that defendant’s lawyer was not a lawyer-in-fact, but a con man. Defendant applied for habeas relief on the ground that she received ineffective assistance of counsel. The district court agreed with her: the court vacated her conviction, and discharged her from supervised release (she had finished her prison term). Assuming the court’s decision to vacate the conviction it won at defendant’s first trial was without prejudice to a new trial with a (real) defense lawyer, the government asked the court to set a date. The district court refused, stating that its discharge order “implicitly” forbade any effort to secure a valid conviction at a second trial. The government appealed the district court’s decision to the Tenth Circuit. The government’s appeal raised the question of whether defendant could be exposed to a new trial and lawful conviction despite having successfully petitioned for habeas relief and served her jail sentence. Rather than contend categorically that only double jeopardy problems may preclude retrial, the government suggested that the remedy the district court selected was too attenuated from the right it found violated: defendant’s Sixth Amendment right to effective assistance of counsel. “[T]he presumptively appropriate remedy for a trial with an ineffective lawyer is a new trial with an effective one. . . . the district court failed to identify any reason why that presumption is inapplicable here; and in these circumstances refusing a new trial amounts to an abuse of discretion.”


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