News

Case Summaries

Bankruptcy Law

[03/12] In Re: Kirkland
District court's determination that the bankruptcy court had jurisdiction to determine the post-petition interest and collection costs to which the creditor was entitled as the result of a default on a student loan that occurred after the Chapter 13 estate was closed and the debtor discharged is reversed as the district court erred in concluding that the bankruptcy court had subject matter jurisdiction over the issues.

[03/10] In Re: Am. Bridge Prods., Inc.
In a bankruptcy trustee's action against an appointed receiver for misfeasance, judgment of the district court finding that plaintiff's claim is barred by the statute of limitations is vacated and remanded as the receiver had not rendered a final accounting or been discharged in either state or federal court.

[03/08] Milavetz, Gallop & Milavetz, P.A. v. US
In an action by a law firm seeking declaratory relief, arguing that plaintiff was not bound by the Bankruptcy Abuse Prevention and Consumer Protection Act's (BAPCPA) debt relief agency provisions and therefore could freely advise clients to incur additional debt and need not make the requisite disclosures in its advertisements, the Eighth Circuit's order rejecting the district court's conclusion that attorneys are not "debt relief agencies" under BAPCPA, upholding application of BAPCPA's disclosure requirements to attorneys, and finding BAPCPA section 526(a)(4) unconstitutional, is affirmed in part where: 1) attorneys who provided bankruptcy assistance to assisted persons were debt relief agencies under the BAPCPA; and 2) BAPCPA section 528's requirements were reasonably related to the government's interest in preventing consumer deception. However, the court of appeals' order is reversed in part where BAPCPA section 526(a)(4) prohibited a debt relief agency only from advising a debtor to incur more debt because the debtor was filing for bankruptcy, rather than for a valid purpose.

[03/08] In Re: Ray
District court's judgment affirming the bankruptcy court's dismissal of two Chapter 11 proceedings was correct, but the decision is vacated, as the law firm lacked standing where there is no evidence that one of the law firm's former attorneys ever informed the bankruptcy court that it was appearing on behalf of the firm and the record is devoid of any mention of the firm by the attorney or any other party.

[02/15] In re: Barner
In debtor's appeal from the bankruptcy court's ruling finding that an automatic stay did not apply to a foreclosure sale of her home, the order is affirmed where: 1) 11 U.S.C. sections 362(d)(4) and (b)(20) did not prohibit enforcement of a 2004 order lifting the automatic stay as to debtor's residence; and 2) the Bankruptcy Abuse Prevention and Consumer Protection Act did not modify or affect orders issued in cases filed before its effective date.

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Commercial Law

[03/11] Coyote Publishing, Inc. v. Miller
In a facial First Amendment challenge to restrictions on advertising by legal brothels, summary judgment for plaintiffs is reversed where the advertising restrictions targeted pure commercial speech, and there were strong reasons why the sale of sexual services, in particular, ought to be treated differently than other advertising bans on "vice" activities.

[03/10] American Signature, Inc. v. US
In proceedings involving an importer of furniture that is subject to a 2005 antidumping duty order on certain entries of wooden bedroom furniture from China, a decision of the Court of International Trade denying plaintiff's motion for a preliminary injunction is reversed as plaintiff has satisfied the requirements for a preliminary injunction, and therefore, the Court of International Trade is directed to grant the preliminary injunction prohibiting Customs or Commerce from taking any action to liquidate or reliquidate import entries that are the subject of this action.

[03/10] Fortis Corp. Ins. SA. v. Viken Ship Mgmt. AS
In a maritime shipping case involving a claim for rust damage to steel coils caused by exposure to seawater during a journey from Poland to Ohio, judgment of the district court is affirmed where: 1) a ship manager charged with providing a Master, officers and crew, and performing various other ship-management tasks for the shipping vessel does not qualify as a "carrier" under the Carriage of Goods by Sea Act (COGSA), and thus the COGSA's one year-statute of limitations does not bar the underlying suit; and 2) defendant's claim that the district court's finding of negligence was based on clearly erroneous factual findings is rejected.

[03/10] Citigroup Global Markets, Inc. v. VCG Special Opportunities Master Fund Ltd.
In an appeal from a district court's order granting plaintiff's motion for a preliminary injunction and enjoining defendant from proceeding with an arbitration initiated against plaintiff before the Financial Industry Regulatory Authority, the order is affirmed where the "serious questions" standard for assessing a movant's likelihood of success on the merits remains valid in the wake of recent Supreme Court cases, and neither the district court's assessment of the facts nor its application of the law supported a finding of abuse of discretion.

[03/09] Seltzer v. Barnes
Trial court's denial of defendant's anti-SLAPP motion, arising from an underlying suit involving claims against a property management company and homeowners' association, is reversed where: 1) the trial court erred in concluding plaintiff's two causes of action against defendant do not arise from speech or petitioning activity where his alleged conduct was the negotiation of a settlement in the prior case; and 2) because defendant may not be held liable for the alleged conduct under the litigation privilege, plaintiff has failed to show a probability of prevailing on her causes of action for fraud and intentional infliction of emotional distress.

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Criminal Law & Procedure

[03/12] US v. McMillan
Defendant's wire and mail fraud convictions and sentences are affirmed where: 1) the superseding indictment did not broaden the charges against the defendants; 2) Cleveland's requirement that the object of the fraud be actual money or property in the hands of the victim was satisfied; 3) the district court gave an immediate curative instruction, in response to objections during the prosecutor's closing remarks, that the government bore the burden of proof and the defendants need not testify or prove anything; and 4) the district court did not clearly err by finding that defendants' business would have suffered catastrophic losses had it been closed rather then permitted to continue in operation and that the amount of loss attributable solely to the defendants could not be reasonably calculated.

[03/12] US v. Jackson
Conviction of defendant for being a felon in possession of a firearm and sentence to 120 months' imprisonment are affirmed where: 1) the officer had a reasonable basis for believing that defendant's mother had the authority to consent to the search of his computer and the computer case; 2) district court properly concluded that the officer did not exceed the scope of the mother's consent; 3) the district court did not err in denying defendant's request to raise an "innocent possession" defense; and 4) district court appropriately rejected defendant's section 5K2.11 argument and imposed a sentence that was reasonable.

[03/12] US v. Sykes
Conviction of defendant for being a felon in possession of a firearm and an enhanced sentence under the Armed Career Criminla Act (ACCA) are affirmed as fleeing from police in a vehicle in violation of Ind. Code section 35-44-3-3(b)(1)(A) is sufficiently similar to ACCA's enumerated crimes in kind, as well as the degree of risk posed, and counts as a violent felony under the ACCA.

[03/12] Gray v. Hardy
In defendant's petition for habeas relief from his conviction for first-degree murder and sentence to an extended-term based on a finding that the murder was exceptionally brutal of heinous, denial of the petition is affirmed as defendant procedurally defaulted each of his claims and even if he adequately preserved his claim of ineffective assistance of counsel for federal review, he cannot show that counsel's failure to raise Apprendi error caused him prejudice.

[03/11] US v. Mejia
Defendant's conviction and sentence for conspiring to distribute cocaine and possession of a firearm in furtherance of a drug crime are affirmed where: 1) district court did not err in denying defendant's motion to suppress his incriminating statements; 2) defendant's evidentiary claims are rejected as there was no abuse of discretion in admitting any of the evidence; and 3) district court did not abuse its discretion in denying defendant's motion for a new trial.

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