Website Has Standing but Fails to Overcome State Secret Doctrine in Challenge to NSA “Upstream” Surveillance Program, Holds Splintered Fourth Circuit Panel

In Wikimedia Foundation v. NSA, No. 20-1191 (4th Cir. Sept. 16, 2021), a three-way split panel holds 2-1 that Wikimedia has Article III standing to challenge National Security Agency’s (NSA) domestic surveillance of transmission lines, but a different 2-1 majority holds that the case fails because of the “state secret doctrine.” The Fourth Circuit hadContinue reading “Website Has Standing but Fails to Overcome State Secret Doctrine in Challenge to NSA “Upstream” Surveillance Program, Holds Splintered Fourth Circuit Panel”

Must the Government Prove That an “Enterprise” Presently Exists as the Object of a RICO Conspiracy? A Split Sixth Circuit Panel Enters the Fray in Biker Gang Prosecution.

In United States v. Rich, No. 18-2268 (6th Cir. Sept. 13, 2021), the Sixth Circuit enters the circuit split about whether, in a Racketeer Influenced and Corrupt Organization Act (RICO) prosecution, the government is required “to prove the existence of the enterprise, or whether an agreement to create a racketeering enterprise suffices.” The majority holdsContinue reading “Must the Government Prove That an “Enterprise” Presently Exists as the Object of a RICO Conspiracy? A Split Sixth Circuit Panel Enters the Fray in Biker Gang Prosecution.”

Fifth Circuit Holds That Busker Has Standing to File Pre-Enforcement First Amendment Challenge to Ban on Musical Performances for Money in Public Places

In Barilla v. City of Houston, No. 20-20535 (5th Cir. Sept. 10, 2021), a Fifth Circuit panel reverses dismissal on standing grounds of a First Amendment challenge to Houston’s ordinance clamping down on “bands, musicians, singers, mimes, and other artists who perform for gratuities on the sidewalk.” “Barilla challenges three City ordinances (collectively, the ‘BuskingContinue reading “Fifth Circuit Holds That Busker Has Standing to File Pre-Enforcement First Amendment Challenge to Ban on Musical Performances for Money in Public Places”

Judicial Severance of an Invalid Provision From a Statute Is Not a “Remedy” with Only Prospective Effect, Holds Sixth Circuit

In Lindenbaum v. Realgy, LLC, No. 20-4252 (6th Cir. Sept. 9, 2021), the Sixth Circuit holds that severance of an offending section of a federal statute by the U.S. Supreme Court is not a judicial “remedy” that operates only prospectively and that severance thus has retrospective effect. Two terms ago in Barr v. Am. Ass’nContinue reading “Judicial Severance of an Invalid Provision From a Statute Is Not a “Remedy” with Only Prospective Effect, Holds Sixth Circuit”

Split Second Circuit Panel Holds That District Court Erred by Admitting “Opinion” Testimony that Defendant “Employed Countersurveillance Driving Techniques,” Ordering New Trial

In United States v. Cabrera, No. 19-3363 (2d Cir. Sept. 8, 2021), the panel majority holds that the jury in a criminal prosecution should not have heard officer testimony that the defendant, “unlike the ‘average drug dealer,’ appeared to be ‘experienced’ because he had employed countersurveillance driving techniques (which consisted of really bad driving).” TheContinue reading “Split Second Circuit Panel Holds That District Court Erred by Admitting “Opinion” Testimony that Defendant “Employed Countersurveillance Driving Techniques,” Ordering New Trial”

Seventh Circuit Discusses “Nerve Center” Test for Diversity Jurisdiction as Applied to Corporate Subsidiaries

In Big Shoulders Capital LLC v. San Luis & Rio Grande Rd., No. 20-1503 (7th Cir. Sept. 3, 2021), the court remands a diversity action to determine whether the subsidiaries of a railroad – under the “nerve center” test – are citizens (1) of Illinois where the parent is headquartered, or (2) of Oregon, Delaware,Continue reading “Seventh Circuit Discusses “Nerve Center” Test for Diversity Jurisdiction as Applied to Corporate Subsidiaries”

Expert Report Proffered by a Party in a Prior Case Is Not Automatically a “Party Admission” for Purposes of Fed. R. Evid. 801(d)(2)(C), Holds Fifth Circuit

In HTC Corp.  v. Telefonaktiebolaget LM Ericsson, No. 19-40566 (5th Cir. Aug. 31, 2021), the Fifth Circuit affirms exclusion of an expert report from a valuation expert who the defendant had used in prior litigation, holding that the prior expert’s testimony is inadmissible hearsay and not admissible as a party admission under Fed. R. Evid.Continue reading “Expert Report Proffered by a Party in a Prior Case Is Not Automatically a “Party Admission” for Purposes of Fed. R. Evid. 801(d)(2)(C), Holds Fifth Circuit”

Fourth Circuit Judge Decries Proliferation of “Advisory” Dissents from Denial of Rehearing En Banc

In Doe v. Fairfax Cnty. Sch. Bd., No. 19-2203 (4th Cir. Aug. 30, 2021) (order), denying rehearing en banc of a Title IX case involving sexual harassment, a Fourth Circuit judge calls for curtailing separate dissenting opinions that signal “disrespect for the hard work of the panel and for the full court’s decision not toContinue reading “Fourth Circuit Judge Decries Proliferation of “Advisory” Dissents from Denial of Rehearing En Banc”

Ninth Circuit Affirms Issuance of Arrest Warrant for Defendant Under Recalcitrant Witness Statute Who Failed to Respond to Paper Discovery

In Invesco High Yield Fund v. Jecklin, No. 21-15809 (9th Cir. Aug. 25, 2021), the Ninth Circuit affirms contempt sanctions against a foreign defendant under 28 U.S.C. § 1826(a), the federal recalcitrant witness statute. The statute provides that when a witness refuses to testify or provide other information, the court “may summarily order his confinementContinue reading “Ninth Circuit Affirms Issuance of Arrest Warrant for Defendant Under Recalcitrant Witness Statute Who Failed to Respond to Paper Discovery”

“Home State” Exception to Class Action Fairness Act Jurisdiction Does Not Apply Where the “Primary Thrust” of the Case Is Liability Against an Out-of-State Defendant, Fifth Circuit Holds

In Madison v. ADT LLC, No. 21-90028 (5th Cir. Aug. 24, 2021), the panel holds that the district court should have disregarded the nominal in-state defendant when evaluating the “home state” exception to the Class Action Fairness Act (CAFA), 28 U.S.C. § 1332(d)(4)(B). It holds that primary defendants include those at whom a lawsuit isContinue reading ““Home State” Exception to Class Action Fairness Act Jurisdiction Does Not Apply Where the “Primary Thrust” of the Case Is Liability Against an Out-of-State Defendant, Fifth Circuit Holds”