Ground Round Inc. v. Abboud, No. 06-9002 (3/30/07) Ground Round is a chain of restaurants. In 1977 they leased some property in Pennsylvania from Howard Johnson (the semi-defunct chain of restaurants) to use a restaurant. They then got a liquor license, and extended the lease. Then Ground Round filed for bankruptcy, and “rejected” the lease under 11 U.S.C. § 365, but claimed the right to retain the liquor license. So, “the partnership” began an adversary proceeding, seeking specific performance of the lease, and return of the liquor license. But, here is where it gets interesting: What is a liquor license?
Ford v. Skorich, No. 06-2395 (3/30/07). This is where divorce law collides with bankruptcy. Under New Hampshire law, where a family court issues an order retraining the parties from disposing of property, both parties have an equitable interest in the property. The divorcing couple had a property in Maine, and the husband nevertheless began to stake steps to sell the property. The family could got wind of this and because “the debtor had ‘violated almost every order that this Court has made" and had ‘concealed assets and diverted assets, and taken title to assets in the names of third parties’…" it directed that the proceeds be placed in an escrow account controlled by the parties’ counsels. It gets better? Keep reading.
Rodriquez v. US Drug Enforcement Administration, 06-1795, 06-1832 (unpublished). This is a lawsuit “alleging that an administrative forfeiture of $ 1905.00 violated due process because he had contested the forfeiture, and he received no notices in the administrative proceeding after an initial notice of seizure.” For some reason the District Court dismissed for lack of subject matter jurisdiction, seeming to accept the DEA’s misconstrued his petition to “seeking only mitigation or remission.” Apparently, he didn’t use the word “claim.” The plaintiff says, obviously, that he wouldn’t have filed it under oath if he wasn’t contesting that the monies were legally obtained. The First responds (with a long strightcite) that “A clear misconstrual of his petition states a due process claim within the district court's subject matter jurisdiction.” Secondly, the plaintiff claims that he received no notice of the ongoing proceedings, so he couldn’t correct what DEA said. Alas, they sent him the mail while he was in jail, the First says that the government needs to show actual service, and whatever the case the question of service if a fact-inquiry.
Now, this annoys me. This is some very good law for prisoners, and good advice for the government. In fact, the plaintiff was pro se. Why in god’s green earth is it unpublished? The court concludes with a warning to prisons:
Finally, concerning MCI-Concord, we warn: "if the government knew that mail delivery in a particular prison was unreliable but sent the notice by this means without any other precaution, mail delivery would not satisfy due process."
Hopefully someone will get this prisoner to file a motion to publish.
International Strategies v. Greenberg Traurig, 06-1790. This case involves a lot of people and firms that I really don’t want to smear. Not because I don’t like smearing, but because I think that most of the defendants here were trying to represent their clients in a good way, but their clients did a lot of bad things. If any of the people involve want to chime in, send me an email and I will prominently post your version of events or the law, or correct anything I got wrong (based on the published opinion.)
The underlying transactions are quite complex. But they ended in their ex-client suing their lawyers. ISG “invested” money with Corporation of the BankHouse ("COB"), who seemed to promise the impossible, and, of course, was a ponzi scheme. COB claimed that it was the victim of another scheme, and its CEO declared that "I have chosen to move to prepare litigation against the parties utilizing the law firm of Greenberg & Traurig [sic]. I have utilized the law firm of Seamin Cherin & Melott [sic] for the criminal assistance against the parties." Specifically, A. John Pappalardo began representing COB, and somehow COB convinced ISG to not independently sue the people that “defrauded” COB, because they would take care of it. Therefore, “ ISG alleges that these representations, and other events that we detail below, led it to believe that Pappalardo was ISG's legal representative and that an attorney-client relationship had been formed.”
C&F accuses California’s Second Appellate District of basically
sanctioning quite egregious prosecutorial misconduct. True enough, in People v. Zurinaga, the prosecutor
does many improper things. The panel
goes on and on about how what he did was wrong. But, the panel affirms the conviction anyway, sending a clear message to
prosecutors (that the First says as well): there are no limits to what you
juries, because the courts will never reverse your convictions, doing its very
best to find harmless error. Go
ahead! No limits! Supervisors: no need to keep an eye on your
underlings. They can so whatever they
want, and say whatever they want. So
long as they do it in front of a jury!
Also, the California court makes it clear that they won’t name
the prosecutor. Nor would they refer
them to the state bar. Essentially, they
condoned all the behavior that they spent pages condemning!
This case looks really big and complicated, but it comes
down to one issue, which splits the panels, and the panel admits (and
describes) the circuit split. The
majority says that that an en banc panel should hear this.
The issue is what degree of deference (if any) should be
paid when there is a “structural conflict” between the “administrator” of an
ERISA plan that hears appeals from denials of benefits and the insurer. In other words, should the court defer to the
decisions of an administrator when the benefits come out the pocket of the
entity making the decision, or should the court (without further evidence of
specific interference in the decision-making process) assume that there is a
conflict. The First has held the “arbitrary
and capricious” standard applies, because market forces will make the appeal
determinations fair. Other circuits
disagree. Selya says that the First Circuit's precedent is flexible enough to take into account conflicts of interest.
PR Telephone Company v. Advanced Cellular, No. 06-1332. This is a contract dispute that arose in a bankruptcy proceeding between a wholesaler and retailer of cellphone services and number. Avanced Cellular, the debtor, claims that rather than owing Puerto Rico Telephone, money, Advanced Cellular owed it money, because, amongst other things, PR Telephone Company needed to reimburse it for “cloning” of numbers by third parties. Just in case you don’t know:
Cloning occurs when a third party uses a device to steal the identifying information of an authorized cellular telephone number through the air waves and then uses the stolen information to make calls that appear to have originated from the authorized number. Cloning surfaced in the cellular telephone industry in the early 1990s. In response to this problem, which placed significant financial strain on Advanced Cellular and Puerto Rico Telephone's other resellers, Puerto Rico Telephone began to reimburse resellers for losses suffered from cloning. To receive reimbursements, Puerto Rico Telephone required resellers to submit claims within 90 days of billing.
PR Telephone Company argues that it had no contractual duty to reimburse at all. The Bankrupty Court disagreed. The District Court affirmed based on another provision in the contract. The First reverses. It holds that the contract was unambiguous, and therefore all the extrinsic evidence considered by the courts can’t be considered.
US v. Miliano, No. 05-2746 dismisses an appeal by a defendant who waived his right to appeal, but got sentenced to more than he expected (because the judge found that he knew that the funds he was ferrying were drug money as opposed to other kinds of ill-gotten funds). Despite the agreement, the judge said “under some circumstances you or the government may have the right to appeal any sentence that this court imposes.” The defendant appears to have appealed the sentence itself, and doesn’t raise the appeal waiver. He didn’t raise it in his opening brief, and he didn’t file a reply brief. Applying United States v. Teeter, 257 F.3d 14 (1st Cir. 2001), the First finds that there just wasn’t a miscarriage of justice.
Judge Selya used a lot of big words. As soon as the defendant learns English and finds a dictionary in jail, he will know what he meant. (This case is really screwed up. The defendant earned a total of $1300 for driving some funds around. Sure they were dirty. But he got 57 months.)
US v. Medina, No. 06-2142 (unpublished). The first time this case was here, it got a Booker remand. See the case here, and our coverage here. As you know, there is a mandatory minimum involving “crack cocaine” in 18 U.S.C. § 841. The earlier case held that “21 U.S.C. § 841 regulates exactly what it's terms suggest: the possession of any form of 'cocaine base'.” But, the First applies the “law of the case” doctrine, and says that the earlier decision applies, and there is no manifestly injustice, nor is it obviously wrong.