Case Summaries

Admiralty

[06/26] TAG/ICIB Services, Inc. v. Sedeco Servicio de Descuento en Compras
District court judgment against defendant for overdue demurrage owed to plaintiff is reversed where: 1) Puerto Rico Commerce Code Article 947's 180-day limitations period applies to plaintiff's claim for overdue demurrage charges on international shipments to Puerto Rico; and 2) the court did not err in failing to apply the laches presumption, as the parties offered scant facts relevant to such an inquiry and the parties consented to judgment based on the stipulation.

[06/26] Compania Naviera Joanna S.A. v. Koninklijke Boskalis Westminster NV
In a tort action arising out of a ship collision, the dismissal of the complaint is affirmed where the District Court did not abuse its discretion in applying the doctrine of forum non conveniens, because the accident occurred in Chinese waters and proceedings were already underway in a Chinese court.

[06/25] Indemnity Ins. Co. of N. Am. v. US
In a negligence action against the U.S. based on the Coast Guard's failure to perform certain tests on a ship, the dismissal of the complaint is affirmed where the entire action was barred by the discretionary function exception to the Government's waiver of sovereign immunity.

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Banking Law

[06/29] Cuomo v. Clearing House Ass'n., L.L.C.
In an action claiming that certain state fair-lending laws were preempted by the National Bank Act (NBA) and accompanying regulations, an injunction in favor of Plaintiffs is affirmed in part, where the state's threatened issuance of executive subpoenas was an improper exercise of "supervisory power". However, the judgment is reversed in part where a federal regulation purporting to pre-empt state law enforcement is not a reasonable interpretation of the NBA.

[06/18] Bank of Am., N.A. v. Mukamai
In an appeal from the Bankruptcy Court's order voiding a payment made by the Debtor to Plaintiff as a preferential transfer, the order is affirmed where the payments, which were made from the Debtor's other credit card accounts for debt consolidation purposes, constituted "transfer[s] of an interest of the debtor in property" under 11 U.S.C. section 547(b).

[06/12] FAMM Steel, Inc. v. Sovereign Bank
In an action involving liability for plaintiff's business failure, district court judgment is affirmed where: 1) defendant did not breach the covenant of good faith and fair dealing as none of the actions involved dishonesty or were purposely done to injure, and there was insufficient evidence to show defendant misled plaintiff; 2) defendant is not liable for breach of fiduciary duty as no fiduciary relationship arose between the parties; 3) the court did not err in granting summary judgment on plaintiffs' instrumentality theory claim as plaintiffs failed to make the necessary showing that defendant assumed actual, participatory, and total control over plaintiff's affairs; 4) plaintiff's failed to provide sufficient evidence that defendant was liable for fraud or duress; and 5) court properly granted summary judgment on plaintiff's tortious interfered with advantageous business relations claim as there is no evidence that defendant's actions were improper in motive or means.

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Bankruptcy Law

[06/30] Tate v. Bolen
The dismissal of Debtors' bankruptcy petition for abuse is reversed, where Debtors should have been allowed to deduct a transportation ownership deduction under the plain language of 11 U.S.C. section 707(b), even though they had no loan or lease payment on their vehicle.

[06/26] Cunning v. Rucker
In an appeal from the Bankruptcy Court's order denying an exemption for Debtor's assets in pension and 401(k) plans, the order is affirmed, where the retirement plans were not designed and used primarily for retirement purposes.

[06/26] Braunstein v. McCabe
In an action related to bankruptcy proceedings, district court judgment is affirmed where: 1) the court properly denied plaintiff's jury trial demand in the turnover action as no Seventh Amendment right to trial by jury attaches to the statutory turnover action authorized by 11 U.S.C. sec. 542; 2) the court properly granted attorney Ziady's motion to dismiss the defendant's fourth-party complaint for negligent misrepresentation as attorney Ziady owed no legal duty to defendant; and 3) the court did not abuse its discretion in denying defendant's motion to amend the fourth-party complaint, as the record shows that the defendant's proposed amendment would have been futile. District court judgment is reversed where the court erred in its turnover order for the insurance proceeds as defendant's expenditures were not made in the ordinary course of business.

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Commercial Law

[07/01] Arnold's Wines, Inc. v. Boyle
District court order granting defendants' motions to dismiss plaintiff's request for a declaratory judgment is affirmed where sections of the New York Alcoholic Beverage Control Laws banning direct sales to consumers by out-of-state liquor retailers and instituting a three-tier system for the regulation of alcoholic beverages evenhandedly regulate the importation and distribution of liquor within the state and do not discriminate against out-of-state producers in violation of the Commerce Clause, and thus are a valid exercise of the state's rights under the Twenty-first Amendment.

[06/26] TAG/ICIB Services, Inc. v. Sedeco Servicio de Descuento en Compras
District court judgment against defendant for overdue demurrage owed to plaintiff is reversed where: 1) Puerto Rico Commerce Code Article 947's 180-day limitations period applies to plaintiff's claim for overdue demurrage charges on international shipments to Puerto Rico; and 2) the court did not err in failing to apply the laches presumption, as the parties offered scant facts relevant to such an inquiry and the parties consented to judgment based on the stipulation.

[06/26] Keweenaw Bay Indian Comm. v. Rising
In an Indian tribe's action seeking injunctive relief from Michigan's policy of taxing transactions involving the tribe and from Michigan's reliance on an informal refund process to sort those immunities out on a case-by-case basis, judgment for Defendant is reversed, where the questions presented covered a myriad of hypothetical transactions and were too abstract and unsupported by specific facts.

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Consumer Protection

[06/29] FTC v. Accusearch Inc.
In an action by the FTC to curtail Defendant's sale of confidential information and require it to disgorge profits, summary judgment for Plaintiff is affirmed where a practice may be "unfair" under the Federal Trade Commission Act (FTCA) even if it does not violate some law independent of the FTCA.

[06/19] Satterfield v. Simon & Schuster, Inc.
In an action under the Telephone Consumer Protection Act for sending unsolicited text messages, summary judgment for Defendant is reversed, where a genuine issue of material fact existed concerning whether the equipment used by Defendant had the capacity to store or produce numbers to be called using a random or sequential number generator and to dial such numbers.

[06/15] Mexia v. Rinker Boat Co.
In an action for breach of the implied warranty of merchantability based on an allegedly defective boat, the dismissal of the complaint on statute of limitations grounds is reversed, where the Song-Beverly Consumer Warranty Act merely creates a limited, prospective duration for the implied warranty of merchantability; it does not create a deadline for discovering latent defects or for giving notice to the seller.

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Contracts

[07/02] Marilyn Nutraceuticals, Inc. v. Mucos Pharma GBMH & Co.
In a trademark infringement action involving the enzyme-based dietary supplement Wobenzym, the District Court's preliminary injunction requiring Defendant to cease selling a dietary supplement is affirmed in part, where Defendant did not meet its burden to prove that Plaintiff ceased production of the supplement; but vacated in part, where a District Court must find a substantial risk of danger to the public or other special circumstances in order to enter an interlocutory order recalling a product in a trademark infringement case.

[07/01] Bristol West Ins. Co. v. Wawanesa Mutual Ins. Co.
In a dispute involving the interpretation of an insurance contract, district court judgment is reversed where the plain language of the Out of State Coverage clause in the policy makes specific reference to any accident that occurs out of state, and does not focus on the limits of the out of the state financial responsibility law, and thus the insurance policy necessarily expands the amount of liability coverage in this case since the accident occurred in New Brunswick.

[07/01] Mesa Air Group, Inc. v. Delta Air Lines, Inc.
In an action seeking an injunction prohibiting Defendant airline from terminating its regional connection agreement with Plaintiff airline, an injunction in favor of Plaintiff is affirmed where Plaintiff demonstrated a substantial likelihood of success on its claim that Defendant was equitably estopped from terminating the agreement.

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Copyright

[06/26] Cadkin v. Loose
In an appeal from an order granting attorney's fees to Defendant following Plaintiffs' voluntary dismissal of their copyright lawsuit, the order is reversed where, because Plaintiffs remained free to refile their copyright claims, they were not "prevailing parties" and thus were not entitled to attorney's fees.

[06/05] William A. Graham Co. v. Haughey
In an action involving an insurance firm's accrual of claims under the Copyright Act, which has a three-year statute of limitations for civil actions, district court judgment is affirmed in part and reversed in part where: 1) the federal discovery rule, not the injury rule, governs the accrual of civil claims brought under the Copyright Act; 2) the district court erred in granting defendant's motion for a new trial and summary judgment with respect to accrual of the statute of limitations issue, as the evidence before the first jury was sufficient to support its finding that plaintiff was not on inquiry notice of defendant's infringement before the date in question; and 3) the court properly rejected defendant's motion for judgment as a matter of law on the causation issue, as plaintiff met its burden to demonstrate a causal connection between the copyright infringement and defendant's profits.

[04/16] In re Sony BMG Entm't
In an action related to a copyright infringement trial, petition challenging an order permitting gavel-to-gavel webcasting of a hearing in a civil case is granted and the matter remanded where a district court judge does not have the authority to permit webcasting of a civil matter. The ruling forbidding enforcement of the order is based on the fact that the court erred in its broad interpretation of Local Rule 83.3, and that both the Judicial Conference of the United States and First Circuit Judicial Council support a narrow interpretation of the rule and have passed policies against the broadcasting of civil court proceedings.

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Corporation & Enterprise Law

[05/29] People v. McLernon
Trial court order denying defendant's motion to withdraw his guilty plea and dismiss his conviction for possession of a controlled substance for sale is reversed and remanded where the trial court improperly failed to consider the merits of defendant's motion for relief.

[05/27] Yamaha Motor Co., Ltd. v. Superior Court of Orange County
Petition for writ of mandate to challenge a trial court order denying plaintiff's motion to quash service is denied where a Japanese manufacturer can be served through its American subsidiary as California law allows service on a foreign corporation by serving its domestic subsidiary.

[05/26] Vaughn v. LJ Int'l, Inc.
In a derivative action alleging breach of fiduciary duty, trial court order sustaining defendant's demurrer without leave to amend is affirmed where plaintiff's standing to bring the claims against the corporation and its directors in California is governed by British Virgin Islands Business Companies Act sec. 184C requiring approval of the BVI High Court before a shareholder can sue derivatively, and the plaintiff had no such approval.

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Government Contracts

[06/29] Am. Contractors Indem. Co. v. US
In a breach of contract action brought pursuant to the Tucker Act, Court of Federal Claims judgment is reversed and remanded where the court erred in dismissing plaintiff's complaint for failure to state a claim, as the effective date of a surety bond is not necessarily the date of agreement or acquiescence within the meaning of 13 C.F.R. sec. 115.19(e).

[06/26] Winter v. Floorpro, Inc.
Armed Services Board of Contract Appeals judgment is vacated and remanded where defendant is not a contractor and thus the Board lacks jurisdiction over its appeal of the contracting officer's decision, as the Contract Disputes Act does not gives the Board jurisdiction over a claim against the government brought by a subcontractor that is a third-party beneficiary of a contract between the government and the prime contractor.

[06/25] Tyler Construction Group v. US
Court of Federal Claims judgment holding that the United States Army Corps of Engineers was authorized to use Indefinite Deliver/Indefinite Quantity Contracts for the design and construction of military buildings is affirmed where: 1) there is no statutory or regulatory provision that precludes such use of IDIQ contracts for a procurement of construction; 2) the Corps did not abuse its discretion in concluding that the use of IDIQ contracts to obtain a large military construction was the most appropriate method of proceeding and therefore best served the interests of the United States; and 3) the Corps' conduct of this procurement did not violate statutory and regulatory provisions designed to aid and protect small businesses.

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Injury & Tort Law

[07/02] Hughes v. Pair
Court of Appeals judgment for defendant in a sexual harassment action is affirmed where: 1) plaintiff's factual allegations fail to establish the severe or pervasive conduct necessary to pursue a claim of hostile environment sexual harassment under Civil Code sec. 51.9, as the conduct was not so egregious as to alter the conditions of the underlying professional relationship and could not plausibly be construed by a reasonable trier of fact as a threat to commit a sexual assault on plaintiff; and 2) the court properly granted summary judgment on plaintiff's claim for intentional infliction of emotional distress as plaintiff failed to establish either extreme or outrageous conduct by defendant or that plaintiff suffered severe or extreme emotional distress.

[07/01] Thomas v. Carnival Corp.
In a personal injury action involving a slip and fall aboard Defendant cruise line, the District Court's order granting Defendant's motion to compel arbitration is reversed where, under the parties' agreement, the dispute at issue must have some actual relation to the agreement to arbitrate, irrespective of what ship the claims originated from and when suit was brought.

[06/30] Beninati v. Black Rock City, LLC
In a negligence action, trial court judgment is affirmed where the doctrine of primary assumption of risk applies to the activity engaged in by plaintiff at the Burning Man Festival, and thus defendant owed him no duty of care to prevent the injuries he incurred as a result.

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Insurance Law

[07/02] Clarendon National Ins. Co. v. United Fire & Casualty Co.
In an action brought to determine the priority of coverage between certain insurance policies, district court judgment is affirmed where: 1) defendant's demand for plaintiff to be involved in the defense of anticipated suits by injured parties is enough to create an actual controversy and give plaintiff the right to bring a declaratory judgment action to determine priority of coverage; and 2) the court did not err in determining that defendant's policy provided primary coverage for the accident and that its umbrella policy would also be triggered before the policy issued by plaintiff came into play.

[07/01] Michigan Millers Mutual Ins. Co. v. DG&G Co., Inc.
In a dispute involving insurance liability coverage, district court's grant of summary judgment for plaintiff is affirmed where: 1) the cotton was in defendant's custody, control and care at the time of the property-damaging occurrence and thus the control and care exclusion in the insurance policy issued by plaintiff applied; and 2) the damage to the cotton was not covered by defendant's agribusiness insurance policy as the defects, errors and omissions exclusion in the policy applies and precludes coverage of the loss.

[07/01] Bristol West Ins. Co. v. Wawanesa Mutual Ins. Co.
In a dispute involving the interpretation of an insurance contract, district court judgment is reversed where the plain language of the Out of State Coverage clause in the policy makes specific reference to any accident that occurs out of state, and does not focus on the limits of the out of the state financial responsibility law, and thus the insurance policy necessarily expands the amount of liability coverage in this case since the accident occurred in New Brunswick.

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Intellectual Property

[07/02] Marilyn Nutraceuticals, Inc. v. Mucos Pharma GBMH & Co.
In a trademark infringement action involving the enzyme-based dietary supplement Wobenzym, the District Court's preliminary injunction requiring Defendant to cease selling a dietary supplement is affirmed in part, where Defendant did not meet its burden to prove that Plaintiff ceased production of the supplement; but vacated in part, where a District Court must find a substantial risk of danger to the public or other special circumstances in order to enter an interlocutory order recalling a product in a trademark infringement case.

[07/02] Marshak v. Treadwell
In an action related to a trademark dispute involving the singing group "The Drifters," district court judgment is affirmed in part and reversed and remanded in part where: 1) the court did not err in issuing contempt findings against the plaintiffs as they reassembled plaintiff's business under different names in order to evade the injunction issued by the district court judge; 2) the court erred in holding co-plaintiff Revels in contempt, as defendant never actually moved for him to be held in contempt, and he thus never obtained notice and a separate hearing; and 3) the court properly awarded defendant attorney's fees, but abused its discretion in refusing to impose any remedy other than attorney's fees, as plaintiff continued to evade the injunction and infringe the trademark. The matter is remanded for an order of accounting of plaintiff's profits.

[07/01] In re Shinnecock Smoke Shop
Trademark Trial and Appeal Board judgment is affirmed where: 1) the board properly affirmed the rejection of petitioner's trademark application, as the Shinnecock Indian Nation is an institution and thus falls within the protection of 15 U.S.C. sec. 1052(a); 2) the USPTO's refusal to register his marks was not a violation of the due process clause of the Fifth Amendment, as the petitioner was provided a full opportunity to prosecute his applications and to appeal the examining attorney's final rejections to the Board; 3) the refusal did not violate petitioner's equal protection rights, as the Board and the examining attorney had legitimate, nondiscriminatory reasons for denying registration; and 4) the refusal to register the mark was not racial discrimination in violation of the United Nations' International Convention on the Elimination of All Forms of Racial Discrimination, as petitioner failed to establish any racial discrimination, and he has no private right of action under the treaty.

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Landlord Tenant

[06/29] Reliastar Life Ins. Co. of New York v. Home Depot U.S.A, Inc.
In an action involving payments related to a lease and recognition agreement, district court judgment in favor of plaintiff is vacated and remanded where: 1) New York's Uniform Commercial Code does not prohibit defendant from asserting constructive eviction as a defense to plaintiff's claims arising from the lease; 2) the estoppel certificate in the recognition agreement does not bar defendant's constructive eviction defense if defendant was unaware of the faulty condition of the building pad when it executed the parties' recognition agreement and its lack of awareness was reasonable at the time; and 3) if defendant was constructively evicted, the lease was terminated and defendant was relieved of its obligation to pay rent under the "hell or high water" clause of the parties' recognition agreement.

[06/25] Kassis v. Ohio Cas. Ins. Co.
In an action seeking indemnification from an insurer regarding a slip and fall personal injury action, judgment for Defendant is reversed where a landlord is an additional insured under an insurance policy obtained by his tenant, such that the insurer is obligated to defend and indemnify the landlord in an underlying personal injury lawsuit.

[06/05] Gray v. City of Valley Park, MO
In a challenge to ordinances enacted by the City that address illegal alien employment in the context of real estate occupation and leasing, district court judgment in favor of defendant is affirmed where: 1) the district court had jurisdiction over the matter, as the city ordinances in question were in fact enforceable against plaintiffs and thus plaintiffs had standing to challenge them; and 2) the matter was not precluded by a prior Missouri state court order.

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Patent

[06/26] Garber v. Chicago Mercantile Exchange
In a patent infringement action, district court order denying plaintiff's motion for relief under Fed.R.Civ.P. 60(b) is reversed where the joint stipulation between the parties was filed pursuant to Rule 41(a)(1) and therefore divested the court of jurisdiction to enter any subsequent orders.

[06/10] Ortho-McNeil Pharm., Inc. v. Mylan Labs., Inc.
In a dispute involving an award of costs stemming from a patent infringement action, district court judgment is affirmed where there is no basis to disturb the court's award of translation costs for potential trial exhibits, translation costs for privilege log documents, and other costs. District court judgment with regard to the award of costs related to jointly taken depositions is vacated and remanded as the joint discovery costs should have been apportioned between the present action and a parallel case in state court.

[06/09] Univ. of Pittsburgh v. Varian Med. Sys., Inc.
In a patent infringement action related to inventions for administering radiation therapy to lung cancer patients, district court judgment is vacated and remanded where the court erred in dismissing the claims with prejudice, as a dismissal for lack of standing should generally be without prejudice so as to permit the filing of a new action by a party with proper standing, and a dismissal with prejudice is a harsh sanction that not justified on the record. Case is remanded with instructions to designate the dismissal as without prejudice.

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Probate Trusts

[06/08] Cory v. Toscano
Trial court judgment that a proposed petition to determine the terms of the trust did not violate the trust's no contest clause is affirmed where the handwritten notations on the trust instrument were an attempt to amend the trust and were not part of the original trust agreement, and thus a challenge to its validity is not a contest under Probate Code sec. 21305(a)(3).

[06/05] Ditta v. Conte
In a breach of fiduciary duty action involving the removal of a trustee of an an inter vivos trust, court of appeals' judgment holding that the case was time-barred is reversed and remanded where a statutory limitations period is applicable to suits seeking damages for breach of fiduciary duty but no statute of limitations period restricts a court's discretion to remove a trustee.

[06/04] Sargiss v. Magarelli
In an action against the estate of Plaintiff's ex-husband claiming that the decedent misrepresented his assets in a prior divorce proceeding, the dismissal of the complaint is reversed, where the statute of limitations was tolled prior to Plaintiff's discovery of the alleged fraud.

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Securities Law

[06/26] Horning v. SEC
In a petition for review of an SEC order barring Petitioner from associating with a broker or dealer in a supervisory capacity based on his failure to adequately supervise two of his employees, the petition is denied, where the SEC's order was reasonable and supported by substantial evidence.

[06/24] Warfield v. Bestgen
In an action by the receiver of a foundation found to have engaged in fraudulent investment sales to recover commissions paid to the foundation's salespersons, judgment for Plaintiff is affirmed, where the charitable gift annuities sold by Defendants were investment contracts under federal securities law.

[06/23] Zacharias v. SEC
In a petition for review of the SEC's finding of securities law violations by Petitioners, the petition is granted in part, where the SEC failed to explain its finding that certain omissions by Petitioners involved a material fact; but denied in part, where the scheme at issue clearly involved an "underwriter," which refuted Petitioners' theory that they properly relied on the Regulation S and Section 4 exemptions.

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Sports Law

[05/29] In re Request of the Governor for an Advisory Opinion
In an advisory opinion on whether Delaware's proposed sports lottery constitutes a permissible lottery under Article II, Section 17 of the Delaware Constitution, the Delaware Supreme Court advised that the proposed sport lottery satisfies the State control requirement of Article II, Section 17 and does not impermissibly delegate legislative authority to the Lottery Director. In addition, the Delaware Constitution allows lotteries to involve an element of skill but only where chance predominates, and thus the Lottery Director's designed games must assure that chance is the predominant factor.

[05/15] Pro Football, Inc. v. Harjo
In an action challenging the Trademark Trial and Appeal Board's determination that a football team's trademark disparaged Native Americans, the dismissal of the action is affirmed, where Defendants' attempt to cancel the trademark was barred by laches because Defendants' delay in seeking that relief prejudiced Plaintiff.

[04/02] Golden Gate Yacht Club v. Societe Nautique de Geneve
In an action seeking to exclude a challenger from the America's Cup yacht race, summary judgment for Plaintiff is affirmed where the phrase "having for its annual regatta" in the trust instrument required a yacht club to hold an annual regatta on the sea prior to issuing its challenge to participate in the race.

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Trade Secrets

[06/15] FLIR Sys., Inc. v. Parrish
In an appeal from an attorney's fee order issued as a sanction for bringing a trade secret action in bad faith, the order is affirmed where: 1) there was evidence that Plaintiffs had an anticompetitive motive; and 2) the action was brought on a theory of "inevitable disclosure" not recognized by California law.

[05/29] CDI Energy Servs., Inc. v. West River Pumps, Inc.
In a action alleging breach of loyalty, trade-secret misappropriation, and business interference, district court judgment denying plaintiff's motion for a preliminary injunction and dissolving the temporary restraining order is affirmed where: 1) the court did not err in finding that plaintiff failed to prove that defendants took trade-secret information or that plaintiff took reasonable steps to protect its trade secrets, and thus there is little justification for granting a preliminary injunction regarding the trade-secret claim; and 2) the court did not err in concluding that while plaintiff had a likelihood of success on its claims for statutory breach-of-loyalty, injunctive relief was not warranted, as the balancing of factors, such as irreparable harm, balance of harms, and the public interest favored defendants.

[05/11] M.D. Mark, Inc. v. Kerr-McGee Corp.
In an action for breach of seismic data license agreements, judgment for Plaintiff is affirmed, where: 1) the District Court did not err in holding that the agreements could not be transferred without Plaintiff's approval; and 2) the jury's finding that Defendant improperly disclosed trade secrets was not against the weight of the evidence.

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Trademark

[07/02] Marilyn Nutraceuticals, Inc. v. Mucos Pharma GBMH & Co.
In a trademark infringement action involving the enzyme-based dietary supplement Wobenzym, the District Court's preliminary injunction requiring Defendant to cease selling a dietary supplement is affirmed in part, where Defendant did not meet its burden to prove that Plaintiff ceased production of the supplement; but vacated in part, where a District Court must find a substantial risk of danger to the public or other special circumstances in order to enter an interlocutory order recalling a product in a trademark infringement case.

[07/02] Marshak v. Treadwell
In an action related to a trademark dispute involving the singing group "The Drifters," district court judgment is affirmed in part and reversed and remanded in part where: 1) the court did not err in issuing contempt findings against the plaintiffs as they reassembled plaintiff's business under different names in order to evade the injunction issued by the district court judge; 2) the court erred in holding co-plaintiff Revels in contempt, as defendant never actually moved for him to be held in contempt, and he thus never obtained notice and a separate hearing; and 3) the court properly awarded defendant attorney's fees, but abused its discretion in refusing to impose any remedy other than attorney's fees, as plaintiff continued to evade the injunction and infringe the trademark. The matter is remanded for an order of accounting of plaintiff's profits.

[07/01] In re Shinnecock Smoke Shop
Trademark Trial and Appeal Board judgment is affirmed where: 1) the board properly affirmed the rejection of petitioner's trademark application, as the Shinnecock Indian Nation is an institution and thus falls within the protection of 15 U.S.C. sec. 1052(a); 2) the USPTO's refusal to register his marks was not a violation of the due process clause of the Fifth Amendment, as the petitioner was provided a full opportunity to prosecute his applications and to appeal the examining attorney's final rejections to the Board; 3) the refusal did not violate petitioner's equal protection rights, as the Board and the examining attorney had legitimate, nondiscriminatory reasons for denying registration; and 4) the refusal to register the mark was not racial discrimination in violation of the United Nations' International Convention on the Elimination of All Forms of Racial Discrimination, as petitioner failed to establish any racial discrimination, and he has no private right of action under the treaty.

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Workers' Comp

[06/11] Simpson v. Empire Truck Lines, Inc.
In an action arising out of a truck accident under the Texas Workers Compensation Act (TWCA), judgment for Defendant is affirmed where the driver of the truck was not Defendant's statutory employee under the Federal Motor Carrier Safety Regulations, and thus Defendant was not vicariously liable under the TWCA.

[06/08] Zaragoza v. Ibarra
In an civil action brought by a worker against a homeowner, trial court's grant of summary judgment for defendant is affirmed where: 1) plaintiff's injury does not fall within the exclusive purview of the workers' compensation laws despite his employer's status as an unlicensed contractor as defendant had not worked 52 hours in the 90 days prior to the date of the injury specified in Labor Code sec. 3352(h); and 2) defendant was not negligent, as plaintiff's injury was entirely his own fault and there was no want of ordinary care taken by the plaintiff-homeowner.

[05/11] Smith v. Workers' Comp. Appeals Board
In a dispute involving attorney's fees, Court of Appeals judgment is reversed where Labor Code sec. 4607 authorizes an award of attorney fees to employees who successfully resist efforts to terminate their award of continuing medical treatment, but does not permit an award of fees to employees who successfully challenge the denial of specific treatment requests.

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