In United States v. Montgomery, No. 20-1201 (6th Cir. May 24, 2021), a Sixth Circuit panel tries to bring clarity to the distinction between forfeiture and waiver in an appeal of a sentencing error. “The difference between waiver and forfeiture has long bedeviled lawyers and judges alike. Lawyers often split the difference, using the termsContinue reading “Sixth Circuit Sorts Out Waiver, Forfeiture, and Invited Error in Criminal Sentence Appeal”
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Two Judges of the Seventh Circuit Say That They, Too, Are Getting Fed Up with Spokeo and Standing
A couple of weeks ago, Judge Newsom of the Eleventh Circuit made a splash with a long, scholarly concurring opinion suggesting a complete refurbishing of standing doctrine. (See May 6, 2021 entry.) Last Friday, in Markakos v. Medicredit, Inc., No. 20-2350 (7th Cir. May 14, 2021), two more judges of the Seventh Circuit express theirContinue reading “Two Judges of the Seventh Circuit Say That They, Too, Are Getting Fed Up with Spokeo and Standing”
Seventh Circuit Recounts Saga of Lawyer Who Asked to Withdraw from Case Right Before Closing Argument
In Black v. Wrigley, No. 20-2656 (7th Cir. May 10, 2021), the Seventh Circuit affirms a defense jury verdict in a defamation case in which plaintiff’s counsel tried to withdraw at the close of a jury trial due to an apparent conflict with his client. On Friday, “the day of closing arguments, when [plaintiff]’s trialContinue reading “Seventh Circuit Recounts Saga of Lawyer Who Asked to Withdraw from Case Right Before Closing Argument”
Second Circuit Holds That State Statutory Law Can Create Legally Protected Interests That Support Article III Standing
In Maddox v. Bank of N.Y. Mellon Tr. Co., No. 19-1774 (2d Cir. May 10, 2021), a split panel holds that statutory damages under New York’s mortgage-satisfaction-recording statutes support Article III standing. New York’s mortgage-satisfaction-recording statutes, N.Y. Real P. Law (“R.P.L.”) § 275, N.Y. Real P. Actions & Proc. L. (“R.P.A.P.L.”) § 1921, provides anContinue reading “Second Circuit Holds That State Statutory Law Can Create Legally Protected Interests That Support Article III Standing”
Culture Wars in the Eleventh Circuit? En Banc Court Votes to Vacate Conviction Because Christian Juror Who “Trusted the Holy Ghost” Was Erroneously Dismissed from Trial
In United States v. Brown, No. 17-15470 (11th Cir. May 6, 2021) (en banc), a strict partisan split yields a 7-4 decision to vacate the fraud conviction of a former U.S. Representative because the judge removed a juror during deliberations who said that “A Higher Being told me [the defendant] was Not Guilty on allContinue reading “Culture Wars in the Eleventh Circuit? En Banc Court Votes to Vacate Conviction Because Christian Juror Who “Trusted the Holy Ghost” Was Erroneously Dismissed from Trial”
Eleventh Circuit Holds Deaf User of City Website Had Standing to Sue, While Concurring Opinion Urges Complete Overhaul of Injury-in-Fact Inquiry for Article III Standing
In Sierra v. City of Hallandale Beach Fla., No. 19-13694 (11th Cir. May 6, 2021), the panel holds that a deaf visitor to a municipal website had standing to challenge the lack of closed captioning on the videos. Judge Newsom, in a 57-page separate opinion, expresses “doubt that current standing doctrine—and especially its injury-in-fact requirement—isContinue reading “Eleventh Circuit Holds Deaf User of City Website Had Standing to Sue, While Concurring Opinion Urges Complete Overhaul of Injury-in-Fact Inquiry for Article III Standing”
Tenth Circuit Declines Appellate Jurisdiction to Review District Court’s Findings in Investigation of a U.S. Attorney’s Office
In United States v. Carter, No. 20-3042 (10th Cir. May 4, 2021), the Tenth Circuit holds that it lacks jurisdiction to review a district court’s investigation of recordings of attorney-client communications at a federal detention center, obtained by the United States Attorney’s Office in Kansas (USAO). “After learning that the USAO had these recordings, theContinue reading “Tenth Circuit Declines Appellate Jurisdiction to Review District Court’s Findings in Investigation of a U.S. Attorney’s Office”
Panel Holds That Fourteenth Amendment Standards Constrain Fifth Amendment Personal Jurisdiction Over a Foreign Defendant, But Urges Reversal En Banc
Ed note 7-2-21: The Fifth Circuit vacated this opinion and will hear it en banc. https://www.ca5.uscourts.gov/opinions/pub/20/20-30382-CV1.pdf In Douglass v. Nippon Yusen Kabushiki Kaisha, No. 20-30379 (5th Cir. Apr. 30, 2021) (per curiam), the panel struggles with application of the federal due process personal jurisdiction test to a foreign defendant. While agreeing with the plaintiff inContinue reading “Panel Holds That Fourteenth Amendment Standards Constrain Fifth Amendment Personal Jurisdiction Over a Foreign Defendant, But Urges Reversal En Banc”
Eleventh Circuit Holds That 28 U.S.C. § 1346(a)(1) Does Not Grant Concurrent Jurisdiction in U.S. District Court Over Case for Overpayment Interest Owed to the Taxpayer
In Paresky v. United States, No. 19-14589 (11th Cir. Apr. 30, 2021), the Eleventh Circuit holds “a matter of first impression within our Circuit” that 28 U.S.C. § 1346, the general federal jurisdiction statute for cases where the United States is a defendant, does not confer jurisdiction “concurrent with the United States Court of FederalContinue reading “Eleventh Circuit Holds That 28 U.S.C. § 1346(a)(1) Does Not Grant Concurrent Jurisdiction in U.S. District Court Over Case for Overpayment Interest Owed to the Taxpayer”
Defendant Waited Too Long to Move for Forum Non Conveniens, Holds Eighth Circuit
In Hersh v. CKE Restaurants Holdings, Inc., No. 19-2794 (8th Cir. Apr. 28, 2021), the Eighth Circuit holds that under any standard of timeliness, the defendants waited too long to raise their forum non conveniens defense – 18 months after the case commenced. The case involved a wrongful death, an electrocution at an indoor playgroundContinue reading “Defendant Waited Too Long to Move for Forum Non Conveniens, Holds Eighth Circuit”
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