26 January 2015

Law in Plain English: M&G Polymers USA, LLC v. Tackett

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblogM&G Polymers USA, LLC v. Tackett

Argument: Nov 10 2014 (Aud.)

Background: Retirees and dependents of retirees from an M&G plant brought a class action lawsuit against M&G after the company announced that retirees would be required to make contributions to their health care costs. The retirees and their union sought an injunction ordering M&G to reinstate the retirees to the current versions of the benefits plans they were enrolled in to receive health care for life without contributions. The labor agreements were originally negotiated between the union as a whole and the employer, and provided for retiree health care benefits (among other things). Individual (local) plants would either adopt the master agreement as a whole or adopt the master agreement with certain exceptions or differences. Some local agreements included "side" letters or "cap" letters that capped the company's contribution toward the cost of retiree health care benefits, although these letters were not reproduced in booklets distributed to retirees and (allegedly) not ratified as part of the agreement between the employer and the local plant. The district court found that, in the absence of extrinsic evidence to the contrary, the master agreements indicated an intent to vest lifetime contribution-free health care benefits, even if the agreement itself was silent as to the duration of retiree health care benefits. The district court also concluded. then, that the cap letters did not apply to the master agreement because those benefits could not be bargained away without retiree permission. The Sixth Circuit affirmed.

Issue: The question before the Court is whether, when construing collective bargaining agreements in Labor Management Relations Act (LMRA) cases, courts should presume that silence concerning the duration of retiree health-care benefits means the parties intended those benefits to vest (and therefore continue indefinitely), as the Sixth Circuit holds; or should require a clear statement that health-care benefits are intended to survive the termination of the collective bargaining agreement, as the Third Circuit holds; or should require at least some language in the agreement that can reasonably support an interpretation that health-care benefits should continue indefinitely, as the Second and Seventh Circuits hold.

Holding: In a unanimous decision, the Supreme Court ruled that the Sixth Circuit’s decision rested on principles that are incompatible with ordinary principles of contract law. ERISA governs pension and welfare benefits plans, including those established by collective-bargaining agreements. ERISA establishes minimum funding and vesting standards for pension plans, but exempts welfare benefits plans—which provide the types of benefits at issue here—from those rules. The Court interprets collective-bargaining agreements, including those establishing ERISA plans, according to ordinary principles of contract law, at least when those principles are not inconsistent with federal labor policy. As a result, the Court vacated the judgment of the Sixth Circuit and remanded it for the appeals court to apply ordinary principles of contract law in the first instance.

21 January 2015

Law in Plain English: Hana Financial, Inc. v. Hana Bank

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblogHana Financial, Inc. v. Hana Bank

Argument: Dec 3 2014 (Aud.)

Background: Hana Bank began operating in May 1994 as the Hana Overseas Korean Club, but did not attempt to register its trademark until. Hana Financial (HFI) began operating on April 1, 1995, and registered its own trademark in 1996. In 2007, HFI filed a trademark infringement claim against Hana Bank, HFI contended that the Bank's use of its "Hana Bank" mark infringed HFI's "Hana Financial" mark because its use of the word "Hana" in connection with financial services would likely cause confusion. The jury found that Hana Bank had used its mark in commerce prior to April 1, 1995, and therefore had trademark priority over HFI. The jury's finding was based upon the doctrine of tacking, where a party
may claim priority in a mark based on the first date of use of a similar but technically distinct mark where the previously used mark is the legal equivalent of the mark in question or indistinguishable such that consumers consider both as the same mark. The Ninth Circuit affirmed, ruling that tacking is a question of fact that must ultimately be decided by the jury.

Issue: The question before the Court is whether the jury or the court determines whether use of an older trademark may be tacked to a newer one.

Holding: In a unanimous decision, the Supreme Court ruled that whether two trademarks may be tacked for purposes of determining priority is a question for the jury. When the relevant question is how
an ordinary person or community would make an assessment, the jury is generally the decisionmaker that ought to provide the fact-intensive answer.

Law in Plain English: Gelboim v. Bank of America Corporation

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblogGelboim v. Bank of America Corporation

Argument: Dec 9 2014 (Aud.)

Background: Ellen Gelboim filed a lawsuit against Bank of America and other financial institutions alleging that they colluded to manipulate the London Interbank Offer Rate (LIBOR), a daily interest rate benchmark that is used to help set the interest rate of financial transactions across the globe. Gelboim’s case was consolidated with a number of other similar cases (four from the Southern District of New York, and three from the Northern District of Illinois) in New York for pre-trial purposes. During the pre-trail phase, the district court dismissed a number of the cases, including Gelboim’s, for failure to state a claim. Gelboim appealed, but the Second Circuit dismissed Gelboim’s appeal and held that it lacked jurisdiction over the appeal because the district court had not entered a final order concerning all the claims in the consolidated action.

Issue: The question before the Court is whether and in what circumstances the dismissal of an action that has been consolidated with other suits is immediately appealable.

Holding: In a unanimous decision, the Supreme Court ruled that the order dismissing the case in its entirety removed Gelboim from the consolidated proceeding, thereby triggering his right to appeal under §1291.

Law in Plain English: Department of Homeland Security v. MacLean

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblogDepartment of Homeland Security v. MacLean

Argument: Nov 4 2014 (Aud.)

Background: In July 2003, all federal air marshals received a TSA briefing that there was a potential plot to hijack U.S. airliners. Soon after the briefing, however, the TSA sent an unencrypted text message to the marshals' cell phones canceling all missions on flights from Las Vegas until early August. Concerned about the danger the threat posed to the flying public in the absence of marshals on these flights, marshal Robert MacLean contacted his supervisor and the Office of the Inspector General. Dissatisfied, he revealed the cancellation order to an MSNBC reporter. Following an investigation, MacLean was removed from his job as a federal air marshal for revealing sensitive security information (SSI), although the agency had not labeled the text message as SSI when it was originally sent. MacLean challenged his removal before the Merit Systems Protection Board, arguing that his disclosure was protected whistleblowing activity. The Board determined that MacLean's disclosure fell outside of the Whistleblower Protection Act (WPA) because the disclosure was specifically prohibited by statute, via the Aviation and Transportation Security Act. The Court of Appeals for the Federal Circuit vacated the Board's decision because it held that the ATSAdid not specifically prohibit the disclosure made by MacLean. Although the ATSA empowers the agency to prescribe regulations prohibiting the disclosure of SSI, regulations by themselves are not considered laws for the purpose of the WPA. As a result, the case was remanded to the Board for a determination about whether MacLean's disclosures qualify for WPA protection.

Edited to add (Oct 9 2014): Mr. MacLean contacted me to say that he challenges the DHS assertion that the text message was limited to Las Vegas flights, and claims that the cancellation applied to all overnight flights. Specifically, MacLean believes that DHS deliberated narrowed the facts from a general whistlelower claim to just the Las Vegas flights because that would be a "specific detail[] of aviation security measure[];" thereby bolstering the claim against him. I'm not sure that matters at this stage; the Federal Circuit's opinion only referenced the Las Vegas flights, and facts generally cannot be challenged at this level. But because MacLean contacted me, I included that information here. Stay tuned to see whether his lawyers raise the issue during oral arguments.

Issue: The question before the Court is whether certain statutory protections codified at 5 U.S.C. § 2302(b)(8)(A), which are inapplicable when an employee makes a disclosure “specifically prohibited by law,” can bar an agency from taking an enforcement action against an employee who intentionally discloses Sensitive Security Information.

Holding: In a 7-2 decision, the Supreme Court ruled that MacLean’s disclosure was not prohibited by the TSA’s regulations for purposes of Section 2302(b)(8)(A) because regulations do not qualify as “law” under that statute.

Law in Plain English: Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc.

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblogTeva Pharmaceuticals USA, Inc. v. Sandoz, Inc.

Argument: Oct 15 2014 (Aud.)

Background: Teva, which manufactures Copaxone® (a drug used in treating multiple sclerosis), sued Sandoz and Mylan, for patent infringement. Sandoz and Mylan sought approval to market generic versions of Copaxone®. The district court concluded that Teva's patents had been infringed. The Court of Appeals for the Federal Circuit affirmed the district court's judgment with respect to one group of claims, but reversed the district court's judgment with respect to a second group of claims. In doing so, the panel reviewed de novo the district court's factual finding in support of its construction of a patent claim term. On the other hand, Federal Rule of Civil Procedure 52(a) requires that a district court's factual findings should only be reviewed for clear error.

Issue: The question before the Court is whether a district court’s factual finding in support of its construction of a patent claim term may be reviewed de novo, as the Federal Circuit requires (and as the panel explicitly did in this case), or only for clear error, as Federal Rule of Civil Procedure 52(a) requires.

Holding: In a 7-2 decision, the Supreme Court ruled that when reviewing a district court’s resolution of subsidiary factual matters made in the course of its construction of a patent claim, the Federal Circuit must apply a “clear error,” not a de novo, standard of review.

Law in Plain English: Holt v. Hobbs

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblogHolt v. Hobbs

Argument: Oct 7 2014 (Aud.)

Hobbs filed his own, handwritten cert petition.
Background: Gregory Holt (also known as Abdul Maalik Muhammad), an inmate under the supervision of the Arkansas Department of Corrections (ADC), filed a lawsuit challenging the ADC's grooming policy. The policy allowed trimmed mustaches but otherwise no facial hair, with quarter-inch beards permitted for a diagnosed dermatological problems. Holt alleged that the policy substantially burdened his ability to practice his religion, in violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA). The district court initially granted temporary injunctive relief, but vacated its order and dismissed the complaint after hearing evidence of Holt's other religious accommodations and the ADC's justifications for the grooming policy in terms of prison security. The Eighth Circuit affirmed, finding that ADC's grooming policy was the least restrictive means of furthering a compelling penological interest.

Issue: The question before the Court is whether the Arkansas Department of Correction's grooming police policy violates the Religious Land Use and Institutionalized Persons Act (RLUIPA) of 2000, 42 U.S.C. § 2000cc et. seq., to the extent that it prohibits petitioner from growing a one-half-inch beard in accordance with his religious beliefs.

Holding: In a unanimous decision, the Supreme Court ruled that the Department’s grooming policy violates RLUIPA insofar as it prevents petitioner from growing a ½-inch beard in accordance with his religious beliefs. While the Department has a compelling interest in regulating contraband, its argument that this interest is compromised by allowing an inmate to grow a ½-inch beard is unavailing, especially given the difficulty of hiding contraband in such a short beard and the lack of a corresponding policy regulating the length of hair on the head.

Gregory Holt, also known as Abdul Muhammad

20 January 2015

Alleged police officer threatens to "find you" if you don't offer full price for his Craigslist car sale

 Update (1/21/2015): The ad was taken down. "This posting has been deleted by its author."

A man claiming to be a police officer is selling a car on Craigslist, and warns: "Do not contact me with spam or other offers/services, and/or lowball offers- I am a cop and I will find you..." I'm not sure you about you, but it sounds like this police officer is offering to abuse his law enforcement powers to find people who don't offer full price for his overpriced 1993 car. I passed this information to the Cecil County Sheriff's Office. I sure hope it's not one of their deputies...


Here is a screenshot from his Craigslist page:





18 January 2015

Hacker cons and speech codes

A woman who uses the Twitter handle @avriette ("jane, the destroyer") had a problem with a talk at Shmoocon. @avirette tweeted
@avirette: So there was a talk at #shmoocon that was unnecessarily sexist (& gross really). I spoke out about it. People thanked me for doing so.
She followed up:
@avirette: People told me in person, in DM. The speaker(s) denied it was sexist rather than owning it and apologising.
@avirette: This is the reason people don't speak up. Nobody believes anything will be done, that anyone will change. This is why we need rules.
(bold is my emphasis)

Someone using the Twitter handle @ZeroFox (I am told that this acount is run by a woman who does marketing for ZeroFox) responded to one of her tweets and offered for the speakers to meet her in the hotel lobby to discuss the talk. She refused:
@ZeroFox: are you at the conference? We're in the hotel lobby and happy to grab a coffee and get your feedback
@avirette: you could have presented that talk very differently Try, next time, imagining there are women in the room.
I responded to her tweet:
@theprez98: Didn't see it, not taking sides...but the speaker offered to meet you to discuss. Doesn't seem unreasonable.
I recognize that everyone is not going to like everything. Some people are going to disagree over whether something is "sexist" or not. And to repeat what I said in my tweet, I didn't see the talk. I'm not taking a position on whether the talk was sexist or not. But there's a larger issue here. What I don't want is "rules." I assume she means speech codes (see this blog post on the evil of speech codes by Rob Graham), but I can't really ask her because she blocked me (and by the way, if by "rules" she doesn't mean "speech codes," then I'm happy make a change to this blog post). Here is a screenshot of her tweets:


Does @avriette think that she is doing her cause any good by branding a speaker's talk as sexist and then refusing her apparently good-faith effort to meet with her to discuss the issue she had? I certainly don't.

Dear @avriette, if you happen to read this: if you believe that the talk you saw was sexist, I'm in no position to question your sincerity. But I don't think you did yourself (or other women with similar concerns) any favors today. That's my $0.02.

14 January 2015

Law in Plain English: Jennings v. Stephens

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblogJennings v. Stephens

Argument: Oct 15 2014 (Aud.)

Robert Mitchell Jennings
Background: In 1989, Robert Jennings was convicted of capital murder and sentenced to death for the killing of a Houston police officer. His conviction and appeal were affirmed on direct appeal. His state habeas application was denied. In 2009, Jennings filed a federal habeas petition, alleging that his attorneys were ineffective by 1) failing to present evidence of his disadvantaged background; 2) failing to find and present evidence of his mental impairment; and 3) conceding defeat and stating that he (Jennings's lawyer) could not quarrel with the jury's decision to find Jennings eligible for the death penalty. The district court agreed on the first two claims and granted habeas relief. The Director of the Texas Department of Criminal Justice filed a timely notice of appeal. The district court decided against Jennings on the third claim regarding the closing argument. Jennings did not file a notice of appeal on the closing argument claim, nor did he seek a certificate of appealability (COA). The Fifth Circuit acknowledged a circuit split on the issue of whether a petitioner can raise arguments in opposition to the state's appeal for relief not adopted by the district court without first seeking a COA when the state appeals a grant of habeas relief (as was the case here). Nonetheless, the panel (while also reversing the district court's decision on the first two claims) ruled that Jennings's closing argument claim was procedurally barred because he failed file a notice of appeal or seek a COA. According to the Court of Appeals, 28 U.S.C. § 2253(c) requires that a petitioner must seek a COA, and a state's appeal on a different claim does not displace this section's gate-keeping function with regards to the claim that the district court decided adversely to the petitioner.

Issue: The question before the Court is whether the Fifth Circuit erred in holding that a federal habeas petitioner who prevailed in the district court on an ineffective assistance of counsel claim must file a separate notice of appeal and motion for a certificate of appealability to raise an allegation of deficient performance that the district court rejected even though the Fifth Circuit acquired jurisdiction over the entire claim as a result of the respondent’s appeal.

Holding: In a 6-3 decision, the Supreme Court ruled that Jennings’ theory was a defense of his judgment on alternative grounds, and thus he was not required to take a cross-appeal or obtain a certificate of appealability to argue it on appeal.

Law in Plain English: T-Mobile South, LLC v. City of Roswell

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblogT-Mobile South, LLC v. City of Roswell

Argument: Nov 10 2014 (Aud.)

Why did the Supreme Court take this case? In this case, the Eleventh Circuit held that the availability of the minutes and a transcript from a hearing were sufficient to meet the "in writing" requirement. On the other hand, the First,
Sixth, and Ninth Circuits have held that a written denial must be separate from the written record and must contain a sufficient explanation of the reasons for the permit denial to allow a reviewing court to evaluate the evidence in the record supporting those reasons. So-called "circuit splits" are perhaps the most common way cases make it to the Supreme Court.

Monopine-style cell tower
Background: The Federal Communications Act (FCA) requires that the denial of a permit for a cell tower be made "in writing and supported by substantial evidence contained in a written record." 47 U.S.C. § 332(c)(7)(B)(iii). When the City of Roswell, Georgia, denied a permit to T-Mobile, the letter simply indicated that the permit was denied and referred T-Mobile to the minutes from the hearing at which the Mayor and City Council denied the permit. The district ruled ruled for T-Mobile, finding that the city had violated the FCA by failing to provide a written document delineating the specific reasons for the local government's decision. Relying on their intervening decision in T-Mobile South LLC v. City of Milton, the Eleventh Circuit reversed, finding that the availability of the minutes and a transcript from the hearing were sufficient to meet the "in writing" requirement.

Issue: The question before the Court is whether a document from a state or local government stating that an application has been denied, but providing no reasons whatsoever for the denial, can satisfy the Communications Act’s “in writing” requirement.

Holding: In a 6-3 decision, the Supreme Court ruled that Section 332(c)(7)(B)(iii) requires localities to provide reasons when they deny applications to build cell phone towers. This conclusion follows from the Act’s provisions, which both preserve and specifically limit traditional state and local government authority. It would be considerably difficult for a reviewing court to determine whether a locality’s denial was supported by substantial evidence contained in a written record or whether a locality had unreasonably discriminated among providers of functionally equivalent services or regulated siting on the basis of the environmental effects of radio frequency emissions if localities were not obligated to state their reasons for denial.

13 January 2015

Law in Plain English: Jesinoski v. Countrywide Home Loans, Inc.

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblogJesinoski v. Countrywide Home Loans, Inc.

Argument: Nov 4 2014 (Aud.)

Background: Three years to the day after consummating a $611,000 home loan, mortgagors Larry and Cheryle Jesinoski mailed a notice to the lenders seeking to rescind the loan due to alleged violations of the Truth in Lending Act (TILA), which requires that a borrower must notify the creditor in writing within three years of the consummation of the transaction. The lenders denied the request to rescind. A year later (now four years after consummating the loan), the Jesinoskis sued the lenders to rescind the loan. The district court ruled for the lenders. The Eighth Circuit affirmed, holding that to notify the creditor, a party seeking to rescind a loan transaction must file suit within three years of consummating the loan.

Issue: The question before the Court is whether a borrower exercises his right to rescind a transaction in satisfaction of the requirements of the Truth in Lending Act, 15 U.S.C. § 1635, by “notifying the creditor” in writing within three years of the consummation of the transaction, as the Third, Fourth, and Eleventh Circuits have held, or must instead file a lawsuit within three years of the consummation of the transaction, as the First, Sixth, Eighth, Ninth, and Tenth Circuits have held.

Holding: In a unanimous decision, the Supreme Court ruled that a borrower exercising his right to rescind under the Act need only provide written notice to his lender within the 3-year period, not file
suit within that period. Section 1635(a)’s unequivocal terms—a borrower “shall have the right to rescind . . .by notifying the creditor. . .of his intention to do so” (emphasis added)—leave no doubt that rescission is effected when the borrower notifies the creditor of his intention to rescind.

Law in Plain English: Whitfield v. United States

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblogWhitfield v. United States

Argument: Dec 2 2014 (Aud.)

Background: Larry Whitfield and an accomplice tried (unsuccessfully) to rob a bank, and then fled. Whitfield ended up in the home of an elderly woman. After directing the woman to a room within her home, Whitfield tried to escape and was captured. The woman died of a heart attack. Whitfield was charged and convicted of 18 U.S.C. § 2113(e), the federal forced accompaniment statute. The Fourth Circuit affirmed.

Issue: The question before the Court is whether 18 U.S.C. § 2113(e), which provides a minimum sentence of ten years in prison and a maximum sentence of life imprisonment for a bank robber who forces another person “to accompany him” during the robbery or while in flight, requires proof of more than a de minimis movement of the victim.

Holding: In a unanimous decision, the Supreme Court ruled that a bank robber “forces [a] person to accompany him,” for purposes of §2113(e), when he forces that person to go somewhere with him, even if the movement occurs entirely within a single building or over a short distance (as was the case here).

09 January 2015

Fighting the wind

I wanted to get in a short flight before all the snow melted, so I programmed a short autonomous flight around the neighborhood. Perhaps I should have entitled this video "beware the wind," because it was definitely a factor. The current weather shows winds out of the west at 14 mph and gusting to 26 mph. As you see particularly in the first minute of the flight (and then at the end), the Phantom is heading southwest and really fighting the wind to stay on course and speed. It seems that today's flight is a good measure for what you can expect out of the Phantom under similar windy conditions.