News

Case Summaries

Admiralty

[01/12] Bowers v. Whitman
In an appeal from an order of dismissal by the district court, order is affirmed where Oregon's modification of the remedies available under Measure 37 is not a constitutional taking because: 1) any potential property interest that plaintiffs had for compensation or a specific type of land use under Measure 37 had not vested; and 2) Measure 49 does not contravene substantive due process, as it does not implicate fundamental rights or fail rational basis scrutiny.

[12/15] MLC Fishing, Inc. v. Velez
Dismissal for want of federal admiralty and maritime subject matter jurisdiction over fishing vessel owner's complaint seeking exoneration from or limitation of liability pursuant to the Exoneration and Limitation of Liability Act is affirmed where: 1) slip-and-fall accident that took place on a ramp leading from the marina to a floating dock that passengers were required to traverse in order to access the vessel did not occur on or over navigable waters; and 2) the Act did not provide an independent basis for federal jurisdiction.

[12/14] F.C. Wheat Maritime Corporation v. US
In an appeal from the district court's award of damages to appellants' in a dispute arising from an allision between a United States Army Corps of Engineers vessel and a private yacht owned by the appellants, judgment is affirmed over appellants' various challenges to the court's determination of damages due them.

[12/13] India Steamship Co. Ltd. v. Kobil Petroleum Ltd.
In a Rule B maritime attachment and garnishment action to secure an arbitration judgment against the charterer of a damaged oil tanker, the district court's order vacating the attachment of a check released to the charterer from the Southern District’s Court Registry Investment System (CRIS) is affirmed, as the CRIS check, which represented the proceeds of electronic funds transfers that are beyond the reach of the district court, is not properly subject to attachment.

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Banking Law

[02/01] GECCMC 2005-C1 Plummer Street Office L.P. v. JPMorgan Chase Bank, N.A.
In a suit alleging breach of lease agreements that the defendant bank assumed after it purchased a failed bank's assets and liabilities from the FDIC pursuant to the terms of a written purchase and assumption agreement, the district court's grant of the bank's motion to dismiss is affirmed, where under federal common law, the plaintiff lacked standing to bring suit under the agreement because it was not an intended third-party beneficiary of the agreement.

[01/24] TIFD III-E, Inc. v. US
In a suit by a taxpayer partner challenging IRS notices of adjustment reallocating a large percentage of the partnership's income for the years 1993 to 1998 to the taxpayer away from two Dutch banks that had purchased an interest in the partnership, and imposing a penalty for underpayment, the district court's judgment in favor of the taxpayer is reversed, where: 1) the banks' interest was not a capital interest for purposes of qualifying them as partners within the meaning of IRC section 704(e)(1); and 2) the taxpayer failed to point to substantial authority supporting its position, so that the government was entitled to impose a penalty on the taxpayer for substantial understatement of income.

[01/20] CRM Collateral II, Inc. v. TriCounty Metropolitan Transportation Dist. of Oregon
In proceedings following default on a standby letter of credit, the district court's disposition of the case on cross-motions for summary judgment is reversed and the case remanded, where: 1) the district court incorrectly concluded that the applicant for the letter of credit was a surety and erroneously permitted it to assert the defense of discharge; and 2) the applicant was not entitled to an award of damages because the beneficiary's draw on the letter of credit did not violate the statutory warranty to the applicant that the drawing did not violate any agreement between the applicant and the beneficiary.

[01/06] Vegas Diamond Properties, LLC v. FDIC
In an appeal from a judgment of the district court dissolving a Temporary Restraining Order on the ground that the anti-injunction provision of the Financial Institutions Reform, Recovery and Enforcement Act precluded it from enjoining the FDIC from conducting a trustee's sale of certain real properties, appeal is dismissed as moot where the subject properties were sold prior to appeal.

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Bankruptcy Law

[02/02] Gentry v. Siegel
In bankruptcy proceedings in which former employees of the debtor filed claims for unpaid overtime wages, the district court's judgment affirming the bankruptcy court's denial of a Rule 9014 motion and its refusal to allow the claimants to pursue class actions is affirmed, where: 1) the bankruptcy court was within its discretion to rule that the bankruptcy process would provide a process superior to the class action process for resolving the claims of former employees; 2) notice of the bankruptcy process to the named claimants was not constitutionally deficient; and 3) with respect to unnamed claimants, the named claimants lacked standing to challenge the notice.

[01/30] Matter of Thorpe Insulation Co.
In Chapter 11 bankruptcy proceedings, the district court's affirmance of the bankruptcy court's orders denying a creditor's motion to compel arbitration and disallowing its claim is affirmed, where: 1) the resolution of the creditor's claim was a core matter in the bankruptcy; 2) the bankruptcy court did not abuse its discretion in denying the creditor's motion to compel arbitration; 3) the bankruptcy court did not abuse its discretion by declining to give the creditor further opportunity for discovery; 4) the creditor's claim was properly disallowed because because the debtor's covenants in a settlement agreement were purported prepetition waivers of the protections of the Bankruptcy Code, which need not be permitted.

[01/27] Matter of Meruelo Maddux Properties, Inc.
In Chapter 11 bankruptcy proceedings involving the question whether the debtor was subject to the single asset real estate provisions of the Bankruptcy Code, the district court's holding that the single asset real estate provisions applied is affirmed, where: 1) the debtor, which existed solely to operate a 92-unit apartment complex, could be characterized as a single asset real estate debtor under the Bankruptcy Code; 2) the plain language of the Code gives no basis for a "whole business enterprise" exception to single asset real estate debtor status that would allow the court to consider parent corporation and sister subsidiaries; and 3) the district court did not err in its approach to granting relief from the automatic stay by leaving questions about whether the debtor timely took timely corrective action to the bankruptcy court in the first instance.

[01/25] Flores v. Kmart Corp.
In a wrongful death action brought against a corporation that had filed for Chapter 11 bankruptcy pursuant to which a bankruptcy court had entered an order confirming a reorganization plan and discharging all known and unknown claims against the corporation, the trial court's demurrer dismissal of the complaint is reversed, where on the limited record of bankruptcy proceedings provided by the corporation, and consistent with Fourteenth Amendment due process principles, the corporation failed to demonstrate, at the demurrer stage, that the approval of the reorganization plan barred all of the plaintiffs' claims.

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Commercial Law

[02/01] In re American Express Merchants' Litigation
In a class action asserting Sherman Act claims, brought against a charge card issuer whose card acceptance agreement purported to preclude a merchant from bringing a class action lawsuit, the district court's grant of the defendant's motion to compel arbitration and dismissal of the case is reversed, where the cost of plaintiffs' individually arbitrating their dispute with the defendant would be prohibitive, effectively depriving them of the statutory protections of the antitrust laws, and thus the class action waiver in the arbitration provision was unenforceable.

[01/27] C9 Ventures v. SVC-West, L.P.
In a personal injury suit in which a lessor of helium-filled tanks used to inflate festive balloons cross-complained against the lessee to enforce an indemnification provision on the back of an unsigned invoice, the trial court's judgment in favor of the lessor and award of attorney fees to it is reversed, where: 1) the lessee did not manifest assent to the terms on the back of the unsigned invoice by course of dealing or course of performance, or under basic contract law; 2) the lessee did not sign the invoice or otherwise expressly agree to its terms; 3) an unsigned invoice itself is not a contract, and repeated delivery of a particular form does not make the form part of the parties' agreement; 4) payment of the invoice merely constituted the lessee's performance of the obligation under the oral contract to pay for the rental of the helium-filled tanks; and 5) assuming the transaction was a sale of goods covered by division 2 of the California Commercial Code, the indemnification provision was not an additional term of the contract under section 2207 of the Commercial Code.

[01/24] Long v. Tommy Hilfiger U.S.A. Inc.
In a putative class action against a men's clothing retailer alleging that its printing of “EXPIRY: 04/##” on a credit card receipt willfully violated the Fair and Accurate Credit Transactions Act (FACTA)'s prohibition against printing the expiration date of the a credit card upon any receipt provided to the cardholder at the point of the sale, the district court's grant of the defendant's motion to dismiss is affirmed, where: 1) FACTA prohibits a merchant from printing expiration date information on a receipt provided to the consumer, even if the year is redacted; but 2) the defendant's interpretation of FACTA, although erroneous, was at least objectively reasonable, and thus there was no "willful" violation that could support a claim.

[01/24] Mabey Bridge & Shore, Inc. v. Schoch
In a suit by a corporation engaged in the business of supplying temporary steel bridges for construction projects, seeking a declaration that the Pennsylvania Steel Products Procurement Act, as interpreted and enforced by the Pennsylvania Department of Transportation (PennDOT), is unconstitutional, and requesting a preliminary and permanent injunction enjoining PennDOT from prohibiting the use of the company's temporary bridges on its projects, the district court's grant of summary judgment against the company on all its claims is affirmed, where: 1) the state Steel Act was not preempted by the federal Buy America Act and related federal regulations; 2) the Steel Act is not unconstitutional under the dormant Commerce Clause; 3) PennDOT's actions did not violate the Contract Clause; and 4) PennDOT's application of the Steel Act did not violate the Equal Protection Clause.

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Consumer Protection

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Contracts

[02/01] GECCMC 2005-C1 Plummer Street Office L.P. v. JPMorgan Chase Bank, N.A.
In a suit alleging breach of lease agreements that the defendant bank assumed after it purchased a failed bank's assets and liabilities from the FDIC pursuant to the terms of a written purchase and assumption agreement, the district court's grant of the bank's motion to dismiss is affirmed, where under federal common law, the plaintiff lacked standing to bring suit under the agreement because it was not an intended third-party beneficiary of the agreement.

[01/27] C9 Ventures v. SVC-West, L.P.
In a personal injury suit in which a lessor of helium-filled tanks used to inflate festive balloons cross-complained against the lessee to enforce an indemnification provision on the back of an unsigned invoice, the trial court's judgment in favor of the lessor and award of attorney fees to it is reversed, where: 1) the lessee did not manifest assent to the terms on the back of the unsigned invoice by course of dealing or course of performance, or under basic contract law; 2) the lessee did not sign the invoice or otherwise expressly agree to its terms; 3) an unsigned invoice itself is not a contract, and repeated delivery of a particular form does not make the form part of the parties' agreement; 4) payment of the invoice merely constituted the lessee's performance of the obligation under the oral contract to pay for the rental of the helium-filled tanks; and 5) assuming the transaction was a sale of goods covered by division 2 of the California Commercial Code, the indemnification provision was not an additional term of the contract under section 2207 of the Commercial Code.

[01/26] Lopez & Medina Corp. v. Marsh USA, Inc.
On appeal of a rejected cross-motion for summary judgment that argued that an insurance policy's coverage expressly applied to an airline's underlying claims for damages arising from the insured's failure to provide air transportation, as contractually required, to the airline's passengers, the district court's order denying the motion is affirmed, as the phrase "legally obligated to pay as damages" in a commercial general liability policy, which usually covers only tort claims, does not also provide coverage for claims in an underlying action arising out of and related to a contract between the parties.

[01/25] Klein v. Chevron U.S.A., Inc.
In a class action complaint predicated on the defendant's practice of purchasing wholesale motor fuel in gallon units at a standardized temperature of 60 degrees Fahrenheit, but selling motor fuel to California consumers at an average temperature of approximately 70 degrees, the trial court's order granting the defendant's motion for judgment on the pleadings is reversed, and its order sustaining the defendant's demurrer to the plaintiffs' claims for breach of contract, unjust enrichment and unlawful business practices under the Unfair Competition Law (UCL) is affirmed in part and reversed in part, where: 1) the trial court erred in dismissing the plaintiffs' UCL and Consumer Legal Remedies Act (CLRA) claims pursuant to the judicial abstention doctrine; 2) the plaintiffs had standing to assert, and the complaint stated a cause of action for, violation of the UCL and CLRA; 3) the plaintiffs failed to state a claim for breach of contract; and 4) the trial court did not err in sustaining the defendant’s demurrer to the plaintiffs' unjust enrichment claim.

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Copyright

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Corporation & Enterprise Law

[02/03] Lawson v. FMR, LLC
In two separate but related cases under the whistleblower protection provision of the Sarbanes-Oxley Act of 2002, alleging unlawful retaliation by employers that are private companies that act under contract as advisers to and managers of mutual funds organized under the Investment Company Act of 1940, the district court's denial of motions to dismiss for failure to state a claim is reversed, as the whistleblower protection afforded by section 806(a) of the Act applies only to the employees of public companies as defined in the Act, and not to an employee of a contractor or subcontractor of a public company reporting suspected violations relating to fraud against shareholders of the public company.

[01/26] The DIRECTV Group, Inc. v. US
In a case involving the calculation and payment of segment closing adjustments associated with a corporation's sale of certain business units that included the transfer of defined benefit pension plans, the decision of the United States Court of Federal Claims granting summary judgment in favor of the corporation is affirmed, where: 1) the Claims Court did not err by calculating segment closing adjustments based on the assets and liabilities of the entire segment, rather than only the assets and liabilities that the corporation retained; and 2) the Claims Court correctly determined that the corporation's segment closing obligations could be satisfied by the cost savings realized by the government in the successor contracts.

[01/24] TIFD III-E, Inc. v. US
In a suit by a taxpayer partner challenging IRS notices of adjustment reallocating a large percentage of the partnership's income for the years 1993 to 1998 to the taxpayer away from two Dutch banks that had purchased an interest in the partnership, and imposing a penalty for underpayment, the district court's judgment in favor of the taxpayer is reversed, where: 1) the banks' interest was not a capital interest for purposes of qualifying them as partners within the meaning of IRC section 704(e)(1); and 2) the taxpayer failed to point to substantial authority supporting its position, so that the government was entitled to impose a penalty on the taxpayer for substantial understatement of income.

[01/20] Huppe v. WPCS International Inc.
In a shareholder derivative action seeking disgorgement of short-swing profits realized by two limited partnerships that were beneficial owners of more than 10 percent of the shares of the issuer, the district court's grant of summary judgment in favor of the plaintiff is affirmed, where: 1) the stock purchases were not exempt from Section 16(b) of the Securities Exchange Act of 1934 or SEC Rule 16b-3(d) even though they were made at the issuer's request and with the board’s approval; and 2) under the definition of "person" in Section 16(b) and basic principles of agency law, the limited partnerships were beneficial owners for the purposes of determining ten percent holder status under Section 16(b), notwithstanding their delegation of voting and investment control over their securities portfolios to their general partners' agents.

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Government Contracts

[02/03] Sauer v. Dep't of Education
In a suit by a California state agency seeking review of an arbitration award that made it liable to a blind vendor for failing to sue the federal General Services Administration (GSA) to vindicate the rights of the vendor to conduct business on federal property, the district court's judgment affirming the award is reversed, where: 1) the arbitration panel committed a legal error when it interpreted the Randolph-Sheppard Vending Stand Act as requiring the state agency to bring an action against GSA, and that the agency's failure to do so made it liable for compensatory damages; and 2) because the arbitration panel's ruling was not in accordance with law, it had to be set aside under the Administrative Procedure Act.

[01/26] The DIRECTV Group, Inc. v. US
In a case involving the calculation and payment of segment closing adjustments associated with a corporation's sale of certain business units that included the transfer of defined benefit pension plans, the decision of the United States Court of Federal Claims granting summary judgment in favor of the corporation is affirmed, where: 1) the Claims Court did not err by calculating segment closing adjustments based on the assets and liabilities of the entire segment, rather than only the assets and liabilities that the corporation retained; and 2) the Claims Court correctly determined that the corporation's segment closing obligations could be satisfied by the cost savings realized by the government in the successor contracts.

[01/25] US v. Hornsby
In a prosecution of the chief executive officer of Maryland’s Prince George’s County Public Schools for honest-services fraud, tampering with evidence, and obstruction of justice, convictions of honest-services fraud are reversed and convictions of tampering with evidence and obstruction of justice are affirmed with a remand for resentencing, where: 1) there was an erroneous jury instruction on honest-services wire fraud; 2) the district court did not err in admitting past-conduct evidence; 3) the district court did not err in denying a motion for severance of the tampering and obstruction counts from the honest-services fraud counts; 4) the district court did not err when it denied a motion in limine to suppress preindictment statements the defendant made to an undercover government informant; 5) the district court did not err in not giving a jury instruction that defined reasonable doubt; 6) there was no prejudicial spillover of evidence supporting the honest-services fraud counts that required the reversal of the tampering and obstruction convictions; and 7) it was not reasonably certain that the judge would have imposed the same sentences even if the erroneous charge of honest-services fraud had not been submitted to the jury.

[01/24] Mabey Bridge & Shore, Inc. v. Schoch
In a suit by a corporation engaged in the business of supplying temporary steel bridges for construction projects, seeking a declaration that the Pennsylvania Steel Products Procurement Act, as interpreted and enforced by the Pennsylvania Department of Transportation (PennDOT), is unconstitutional, and requesting a preliminary and permanent injunction enjoining PennDOT from prohibiting the use of the company's temporary bridges on its projects, the district court's grant of summary judgment against the company on all its claims is affirmed, where: 1) the state Steel Act was not preempted by the federal Buy America Act and related federal regulations; 2) the Steel Act is not unconstitutional under the dormant Commerce Clause; 3) PennDOT's actions did not violate the Contract Clause; and 4) PennDOT's application of the Steel Act did not violate the Equal Protection Clause.

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Injury & Tort Law

[02/03] Pennsylvania National Mutual Casualty Insurance Co. v. Roberts
In a suit brought by an insurer seeking a declaratory judgment that it was required to indemnify its insured for no more than 40 percent of a state court judgment because it had covered its insured for no more than 40 percent of the time in which the state court plaintiff was exposed to lead poisoning, the district court's judgment is: 1) affirmed in part, where it was correct in allocating the insurer's liability using the pro-rata time on-the-risk, and its decision to use the plaintiff's date of birth as the starting point for the period in which she was exposed to lead poisoning was sound; and 2) reversed in part, where the district court erred in holding the insurer liable for 24 months of coverage rather than 22, since under the insurance contract, coverage ended when the property was sold.

[02/02] Lore v. City of Syracuse
In a case alleging illegal retaliation against a city police officer under Title VII and the New York State Human Rights Law (HRL) because of her complaints of gender discrimination, the district court's judgment is: 1) affirmed in part where the city's arguments regarding the availability of reputation damages, evidentiary and instructional errors, and excessive damages for emotional distress presented no basis for disturbing the judgment; and 2) vacated in part where there was merit in plaintiff's contentions regarding the liability of the city's corporation counsel, and the district court erred in dismissing her principal gender discrimination claims under the HRL on the basis that she had suffered no materially adverse employment action.

[02/01] Maxton v. Western States Metals
In a suit alleging negligence and strict liability causes of action based on personal injuries as a result of working with metal products manufactured by the defendants and supplied to the plaintiff's employer, the district court's judgment in favor of the defendants on demurrers is affirmed, where: 1) the metal products involved were not inherently dangerous, and no other circumstances justified imposing liability on the defendants for the plaintiff's injuries under the component parts doctrine; 2) the plaintiff did not meet his burden of showing there was a reasonable possibility that the deficiencies in the complaint could be cured by amendment.

[01/30] Sennett v. US
In a suit by a photojournalist seeking money damages against the federal government for FBI agents' alleged violations of the Privacy Protection Act (PPA) stemming from a search of her apartment, the district court’s order granting summary judgment to the United States is affirmed, where: 1) the facts as alleged showed that the officers had probable cause to believe that the plaintiff was involved in criminal activity; and 2) the search of her home related to the investigation of that activity, so that the "suspect exception" to the PPA applied.

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Insurance Law

[02/03] Pennsylvania National Mutual Casualty Insurance Co. v. Roberts
In a suit brought by an insurer seeking a declaratory judgment that it was required to indemnify its insured for no more than 40 percent of a state court judgment because it had covered its insured for no more than 40 percent of the time in which the state court plaintiff was exposed to lead poisoning, the district court's judgment is: 1) affirmed in part, where it was correct in allocating the insurer's liability using the pro-rata time on-the-risk, and its decision to use the plaintiff's date of birth as the starting point for the period in which she was exposed to lead poisoning was sound; and 2) reversed in part, where the district court erred in holding the insurer liable for 24 months of coverage rather than 22, since under the insurance contract, coverage ended when the property was sold.

[02/03] Scandinavian Reinsurance Co. Ltd. v. Saint Paul Fire and Marine Insurance Co.
The district court's grant of a petition to vacate an arbitral award is reversed, and on remand the district court is instructed to grant a cross-petition to confirm the award, where there was insufficient evidence before the district court on which to base a finding of "evident partiality" within the meaning of the Federal Arbitration Act despite the failure of two arbitrators to disclose their concurrent service as arbitrators in another, arguably similar, arbitration.

[01/30] M & F Fishing, Inc. v. Sea-Pac Insurance Managers, Inc.
In an action by owners and operators of commercial fishing companies alleging violations of the Unfair Competition Law predicated on violations of the Insurance Code, the judgment in favor of the plaintiffs is reversed and the matter is remanded, where: 1) the plaintiffs were not entitled to restitution for insurance lawfully placed from admitted carriers; 2) the plaintiffs were not entitled to restitution of premiums paid for nonadmitted coverage; 3) the plaintiffs were barred from recovering restitution of any broker fees based on a violation of Insurance Code section 1764.1 occurring more than four years before they filed suit; 4) the trial court should have granted one defendant's motion for nonsuit for lack of an agency relationship; 5) the trial court properly exercised its discretion when it denied the plaintiffs' motions to amend to add additional parties; and 6) the plaintiffs' entitlement to prejudgment interest was subject to the discretion of the trial court.

[01/27] Hutcherson v. Arizona Health Care Cost Containment System Administration
In a declaratory judgment action seeking a declaration that Arizona's Medicaid agency had no right at all to recover from an annuity purchased by a husband so that his institutionalized wife could obtain Medicaid coverage or, alternatively, had no right to recover for any costs incurred for the wife's care after the husband's death, the district court's grant of the defendant's motion for summary judgment is affirmed, where: 1) the federal Medicaid Act allows states to reach a deceased community spouse's annuity for costs incurred on behalf of an institutionalized spouse; and 2) nothing in the language of the Act was inconsistent with permitting the state agency to recover from the annuity expenses incurred after the husband's death.

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Intellectual Property

[02/01] Thorner v. Sony Computer Entertainment America LLC
In a patent infringement action concerning a patent relating to a tactile feedback system for computer video games, the district court's judgment of noninfringement upon stipulation is vacated and the case remanded, where: 1) the district court improperly limited the term "attached to said pad" to mean attachment only to an external surface, and the parties based the stipulation of noninfringement on the district court's erroneous construction of this claim; and 2) the district court erred in its construction of the term "flexible."

[01/27] Krippelz v. Ford Motor Co.
In a patent infringement case involving a vehicle-mounted lamp, the district court's denial of the defendant's motion for judgment as a matter of law on invalidity is reversed, its summary judgment of infringement is vacated, and the case is remanded for entry of judgment of nonliability for the defendant, where the district court committed reversible error in its holdings that: 1) a reasonable jury could find that a competing French patent failed to teach the required "conical beam of light;" and 2) the jury could have reasonably found the French patent to lack a lamp "adjacent to the window."

[01/23] Falana v. Kent State University
In a suit against a university and inventors listed on a patent alleging that the plaintiff was an omitted co-inventor, the district court’s judgment in favor of the plaintiff as to inventorship is affirmed, where: 1) the district court did not err in construing the language of the claims; 2) error in the exclusion of certain exhibits did not result in substantial injustice and was harmless error; 3) the district court did not err in concluding that the plaintiff's contribution of the method used by the team of which he was a part for making the claimed compounds was enough of a contribution to conception to pass the threshold required for joint inventorship; and 4) the district court's exceptional case finding and award of attorney fees were not yet final and not properly before the court of appeals.

[01/20] Dealertrack, Inc. v. Huber
In a patent infringement action involving patents directed to a computer-aided method and system for processing credit applications over electronic networks, the district court's rulings on summary judgment motions are affirmed in part, vacated in part, reversed in part, and the case remanded, where: 1) the district court erred in granting summary judgment of noninfringement based on a construction of "communications medium" that carved out the Internet; 2) the court modified the claim constructions of "communications medium" and "central processing means," requiring it to vacate summary judgment of noninfringement and remand to the district court to determine infringement in the first instance applying the new constructions; 3) the district court legally erred in denying a motion for summary judgment of invalidity of certain claims for indefiniteness; 4) the district court correctly found that certain claims were patent ineligible abstract ideas.

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Landlord Tenant

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Patent

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Probate Trusts

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Securities Law

[01/20] Huppe v. WPCS International Inc.
In a shareholder derivative action seeking disgorgement of short-swing profits realized by two limited partnerships that were beneficial owners of more than 10 percent of the shares of the issuer, the district court's grant of summary judgment in favor of the plaintiff is affirmed, where: 1) the stock purchases were not exempt from Section 16(b) of the Securities Exchange Act of 1934 or SEC Rule 16b-3(d) even though they were made at the issuer's request and with the board’s approval; and 2) under the definition of "person" in Section 16(b) and basic principles of agency law, the limited partnerships were beneficial owners for the purposes of determining ten percent holder status under Section 16(b), notwithstanding their delegation of voting and investment control over their securities portfolios to their general partners' agents.

[01/10] Capital Management Select Fund Ltd. v. Bennett
In a securities fraud action stemming from a broker's rehypothecation or other use of securities and other property held in customer brokerage accounts, the district court's dismissal of all claims is affirmed, where the plaintiffs failed to make sufficient allegations that their agreements with the broker misled them or that the broker did not intend to comply with those agreements at the time of contracting.

[01/09] US v. Collins
Judgment of conviction for conspiracy, securities fraud, and wire fraud is vacated, where: 1) the district court failed to disclose the contents of a jury note and engaged in an ex parte colloquy with a juror accused of attempting to barter his vote, thus depriving the defendant of his right to be present at each stage of the trial; and 2) the errors were not harmless, as the court could not say with fair assurance that the judgment was not substantially swayed by the errors.

[12/22] Rivers v. Wachovia Corporation
In an appeal from a judgment of the district court dismissing plaintiff's personal claim for corporate stock losses suffered, judgment is affirmed where plaintiff's complaint stated a claim derivative of injury to the corporation and is therefore barred from a direct or individual cause of action against the defendants.

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Sports Law

[11/02] CBS Corporation v. Federal Communications Commission
In a petition for review of an order of defendant-FCC penalizing petitioner for broadcasting a fleeting nude image during the National Football League's Super Bowl halftime performance, petition is granted because defendant failed to acknowledge that its order reflected a policy change and improperly imposed a penalty on petitioner for violating a previously unannounced policy.

[04/28] Cedar Fair v. City of Santa Clara
In a petition for a writ of mandate pursuant to the California Environmental Quality Act (Act) and pertaining to the allocation, in a term sheet, of a proposed site for a 49er stadium, judgment of the trial court denying petition is affirmed because term sheet did not constitute a project or a project approval within the meaning of the Act and, therefore, preparation of an environmental impact report was not required.

[04/01] Lopera v. Town of Coventry
In a 42 U.S.C. section 1983 dispute arising from a police search of team members after a heated match and with the consent of team coach, summary judgment in favor of defendants is affirmed where officers were entitled to qualified immunity and plaintiffs did not introduce sufficient evidence supporting a finding that the police engaged in racial discrimination.

[03/08] Equity in Athletics, Inc. v. Department of Education
In a lawsuit seeking declaratory and injunctive relief under Title IX of the Education Amendments of 1972, 20 U.S.C. section 1681-88, summary judgment in favor of defendants is affirmed where plaintiff failed to offer any support for its numerous constitutional, statutory, and procedural claims.

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Trade Secrets

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Trademark

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