Appellate Law & Practice

CA1: Attorney fee statutes, the FDCPA, prevailing parties, and FRCP 68

French et al v. Corporate Receivables et al. 06-1533.  This is a Fed. R. Civ. P. 68 case.  An abusive debt collector made a couple of offers of judgment.  The plaintiffs rejected them.  The ultimate award (before a jury) came to less than the offers.  Problem is, the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., and Mass. Gen. Laws ch. 93A, have their own attorneys fees provisions, and the plaintiffs moved for attorneys fees.  The District Court did an interesting things: it declined to reduce the Frenches' fee request under Marek v. Chesny, 473 U.S. 1 (1985) because it was not clear that the second Rule 68 offer was larger than the award plus the fees and costs that the Frenches had incurred up to the time of the offer, but still reduced the award (a lot), “because the Frenches obtained only ‘de minimis’ success at trial.”  The First finds that because the FDCPA only provides for “reasonable” fees, the reason given by the trial court is good enough.  Then the First gets a little silly, and shows its distain for poor people, and writes “The Frenches' failure to obtain actual damages provides a sound basis for the conclusion that pursuing this case through trial was wasteful, especially where there was an offer of judgment that would have essentially compensated the Frenches for the amount of damages they were likely to (and did in fact) obtain.”  Come on, the FDCPA was enacted to prevent bullying of poor folks by creditors.  I don’t think that most judges have any idea what abusive debt collectors are like, and therefore, they have little idea what a reasonable debtor (and their attorney) think they can convince a jury of.

Extensive comments from Bill McLeod here.

CA1: So long as a school acts in good faith, it isn’t liable for student-on-student sexual harassment

Porto v. Town of Tewksbury, Nos. 06-1994, 06-2139. Student on student sexual harassment: When a school system may be liable under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq.?  Davis v. Monroe County Board of Education, 526 U.S. 629, 648 (1999) requires “deliberate indifference.”  The First looks at a jury verdict (for $250,000 and punitive damages of $1) and concludes that the evidence was insufficient to support such a verdict.  Without going into details, these were little kids with major problems.  The school district seems to have tried, but failed, to stop the problems. And, in these cases, the First reverses, essentially saying that a good faith effort is enough.

The whole case is pretty sick.  But, I found one thing funny.  There is actually someone with the title, “Behavior Management Facilitator.” Is that a hall monitor?

Michael L. Rich comments here (with some interesting comments in the box)

CA1: punitive damages in a 1983 case against someone sued in their personal capacity

Acevedo-Luis v Pagan, 06-1567.  This is a Puerto Rican political discrimination case under 42 U.S.C § 1983.  There are many of them, but this one is a little odd because 1) the plaintiff complained that he was reassigned to a job with little responsibilities (and later re-reassigned to a real job); 2) a jury found in his favor; but 3) the jury did not award compensatory damages, but instead awarded $5,000 in punitives.

On appeal, the First holds that a jury need not be told that a violation of 1st amendment rights is “irreparable.”  He didn’t request a nominal damages instruction.

Because the defendants that made it to trial were being sued in their personal capacities, the 1st determines that there is no reason to tell the jury that they would be indemnified, and the jury can determine render a verdict based on their personal net worth.

CA1: he who treats mother earth with disrespect gets civil penalties

US v. JG-24, Inc. No. 04-2577 is a CERCLA case.  The District Court held that the a number of companies were jointly and severally liable, and affirmed and enforced the civil penalties for a “failure to respond in writing to the EPA’s request for information.”  The appellants had argued that the required cleanup was inconsistent with the “National Contingency Plan (NCP), 40 C.F.R. pt. 300 (2004)” because the EPA wanted 21 months to begin removing the bad stuff.  But, applying Chevron, the First finds that the EPA did a good enough job applying the regs, and the companies committed a lot of sins  If you are interested in environmental law this is a good read, because it deals with the question of how to deal with additional findings made after the excavation starts.

As to penalties under 42 U.S.C. § 6927(a) for not producing information, the First finds – with little explanation – that the EPA was right to assess per diem fines.

CA1: The post office, sovereign immunity, and retaliation for age discrimination

Gomez-Perez v. Potter, No. 06-1614 holds that the post office has, indeed, waived sovereign immunity with regard to suits under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 633a.  Strangely, the First relies on a “‘to sue and be sued'” clause to come to this decision.  Some courts have rejected this view of sue and be sued clauses.  But, whatever the case, the First cites U.S. Postal Serv. v. Flamingo Indus. Ltd., 540 U.S. 736, 744 (2004) without much discussion.

But, this plaintiff is suing under a retaliation theory – that is, he filed a complaint and his supervisor and other retaliated against him.  The court looks at the language of § 633a and concludes that the word “retaliation” is missing (but discrimination is there).  The court realizes that it is splitting with the D.C. Circuit, which had found that the difference between a public and private actor not to be dispositive in Forman v. Small,  271 F.3d 285, 296 (D.C. Cir. 2001).  Commendably, the court did not rely on sovereign immunity in construing the statute after it found a waiver.

DotD comments here.

CA1: citizen suits are a fine for the constitution

Maine Peoples v. Holtrachem, No. 05-2331.  Carter Phillips argued (on behalf of his client) that the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6972(a)(1)(B), does not really allow for citizen suits, when there is imminent harm to mother nature.  Judge Selya calls the argument against constitutional standing to be "specious."  The defendants also argued that there would be a "judicial usurpation of regulatory authority because it would permit "private parties to attack EPA risk assessments collaterally, using the very risks EPA deemed acceptable to establish standing and liability, with no deference afforded to EPA's policy judgment."  But, Selya rises to the occasion and points out that "it would be no less offensive a usurpation for a court to refuse to undertake a task validly entrusted to it by Congress."  On top of that, the Judge Selya points out that the courts are perfectly capable of holding trials on environmental matters.
On the merits, the plaintiffs win.  There is a lot of environmental law nerdery in there, which I don't really have time to go through... but if someone wants to write about it (here, or some place out), post a comment. 

• Environmental Law in Washington State comments here. 
• The Indiana Law Blog Comments here.
• Howard Bashman comments here.

Judge Selya uses many big words, that hopefully have convinced many people that he is smart.  However, most people have no idea what he is talking about. 

CA1: Rescission and copyright preemption

Santa-Rosa v. Combo Records, No. 05-2237 (12/15/06).  This dispute involves an accomplished salsa musician.  But, what most people will be interested in is the following: 1) the First will not decide whether “a simple breach of contract action that only seeks damages would be preempted by the Copyright Act.”; and 2) if a party is seeking rescission of an intellectual-property-type contract, and it succeeds, then 17 U.S.C. § 201(b) kicks in, and “any further distribution would constitute copyright infringement” – and therefore, 17 U.S.C. § 301(a) allows compensation for "mere copying" or "performance, distribution or display" of the salsa.  But, the rub is that since the contract claim is then prevented, he failed to state a claim under the Copyright act in the first place.  Got it?  If you seek to rescind the contact, you risk preemption.

A declaratory judgment claim is barred by the statute of limitations in 17 U.S.C. § 507(b), because he was on notice of his claim of ownership of the recordings at issue soon after they were made.

Exclusive rights comments here.   William Patry comments here.

CA1: reality shows are too cliché to be (c)

Quaglia v. Bravo Networks, No. 06-1864 (12/15/06) (unpublished).  This seems to be a dispute between two reality shows.  Oh, how wacky.  It comes down to a question of whether a copyright work was “probative similar” in order to establish a claim of copyright infringement.   The First Circuit views the shows (oh boy) and concludes that because the characters are so “stock” and cliché, that no juror could have concluded that there really was any original content.  This, of course, raises the question of whether they would have reached the same conclusion before reality TV shows became popular, and whether people would have though that the stock and cliché were really unique.  The court dismisses the state-law contract claim by showing that it isn’t support by the record. 

Exclusive Rights comments here.

CA1: RICO can't be used for emotional damages

Zareas v. San Martin, No. 06-1180 (12/15/06) (unpublished). This is a pretty straightforward dismissal of a RICO claim. Despite being unpublished, the First feels “compelled” to address the inadequacy of the injury. Unfortunately, aside from pointing out that “claims for personal injuries, such as emotional distress, are not ‘business or property’ and are not cognizable under RICO” all of the holdings are essentially analysis of the facts without context, so I don’t really know what sort of analysis they were doing, anyway.

CA1: it isn’t malpractice to properly withdraw

Cordi-Allen v. Halloran, No. 06-1664 affirms a grant of summary judgment in favor of a lawyer, and against his client under Connecticut malpractice law and tort law involving a workers compensation client that couldn’t get along with her lawyer resulting in his withdrawl.  The First parses though the various writings, and concludes that the plaintiffs are really claiming thus: Halloran breached the contract by withdrawing, forcing them to pay for a new lawyer.  Looking at the writings, and Connecticut Rule of Professional Conduct 1.16, the court concludes that there was nothing to bind the defendant in perpetuity to the plaintiff, and that he fulfilled any duties implied at law in the Rules of Professional Conduct.

Alternatively, the court notes that if this was a tort case, the statute of limitations would have begun to run when the defendants motion to withdraw was granted.

The District Court did not provide any reasoning in its memorandum.