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February 11, 13, 17, 2009.
CRIMINAL LAW & PROCEDURE, ETHICS & PROFESSIONAL RESPONSIBILITY, SENTENCING U.S. v. Gutierrez, No. 083581 Conviction for possession of counterfeit checks and bank fraud and sentence of 24 months on each count, to run concurrently, is affirmed over claims of error that: 1) defendant’s sentence was procedurally unreasonable because the District Court did not provide defense counsel a meaningful opportunity to speak before imposing a sentence, in violation of Rule 32 of the Federal Rules of Criminal Procedure; and 2) a sentence of twenty-four months’ imprisonment was procedurally unreasonable because the District Court did not adequately consider the sentencing factors in 18 U.S.C. section 3353(a), provide sufficient reasons for imposing a sentence of twenty-four months’ imprisonment, or address defendant’s specific arguments for a non-Guidelines sentence
ADMINISTRATIVE LAW, FAMILY LAW, GOVERNMENT LAW, HEALTH LAW State of New York v. U.S. Dep’t of Health and Human Servs., No. 073858 In challenge to defendant’s determination that the state’s failure to comply with the “judicial determination of reasonable efforts” requirements in 45 C.F.R. section 1356.21(b)(2) rendered it ineligible for federal reimbursement of foster care maintenance payments, dismissal of plaintiff’s action is affirmed where: 1) state’s contention that section 1356.21(b)(2) conflicted with the statute it implemented, 42 U.S.C. section 672(a)(1), was incorrect; 2) section 1356.21(b)(2) required a judicial determination of state compliance with the reasonable child placement efforts set forth in 42 U.S.C. section 671(a)(15) as amended by the 1997 Adoption and Safe Families Act; 3) the plain language of section 672(a)(1) signaled Congress’s intent to incorporate all “reasonable efforts” discussed in section 671(a)(15) into section 672(a)(1); and 4) state’s complaint was properly dismissed pursuant for failure to state a claim. Read more…
ATTORNEY’S FEES, SECURITIES LAW Trust for the Certificate Holders of the Merrill Lynch Mortgage Investors v. Love Funding Corp., No. 071050 In a case arising out of the sale of commercial mortgage-backed securities in an approximate amount of $100 billion, the court certified the following questions: 1) Is it sufficient as a matter of law to find that a party accepted a challenged assignment with the “primary” intent proscribed by New York Judiciary Law section 489(1), or must there be a finding of “sole” intent?; 2) As a matter of law, does a party commit champerty when it “buys a lawsuit” that it could not otherwise have pursued if its purpose is thereby to collect damages for losses on a debt instrument in which it holds a pre-existing proprietary interest?; 3) (a) As a matter of law, does a party commit champerty when, as the holder of a defaulted debt obligation, it acquires the right to pursue a lawsuit against a third party in order to collect more damages through that litigation than it had demanded in settlement from the assignor? (b) Is the answer to question 3(a) affected by the fact that the challenged assignment enabled the assignee to exercise the assignor’s indemnification rights for reasonable costs and attorneys’ fees?
CIVIL PROCEDURE, CONSTITUTIONAL LAW, CRIMINAL LAW & PROCEDURE Sledge v. Kooi, No. 07-1547 In a suit brought pro se by plaintiff alleging defendant violated his Eighth Amendment rights while incarcerated, grant of defendant’s motion for summary judgment is affirmed. When facing pro se litigants who are repeat filers, absent a strong showing that the pro se litigant has acquired adequate experience more generally, a district court should limit the withdrawal of pro se litigant’s special status to specific contexts in which the litigant’s experiences indicates that he may fairly be deemed knowledgeable and experienced.
CONSTITUTIONAL LAW, CONSUMER PROTECTION LAW, FOOD & BEVERAGES, HEALTH LAW New York State Restaurant Ass’n v. New York City Bd. of Health , No. 08-1892 In an action challenging the constitutionality of a law requiring restaurants to post caloric information on menus, the District Court’s denial of plaintiff’s motions for preliminary injunction, declaratory relief, and summary judgment, and grant of defendant’s motion for summary judgment, are affirmed where New York Health Code 81.50: 1) is not expressly preempted by the Nutrition Labeling and Education Act of 1990; and 2) does not infringe on plaintiff’s member restaurants’ First Amendment rights.