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Body copy starts here . . . ADMINISTRATIVE LAW (see also ATTORNEYS’ FEES) ADMINISTRATIVE LAW — Judicial Review — Ripeness National Park Hospitality Association v. Department of the Interior , No. 02-196; U.S. Supreme Court; opinion by Thomas, J.; concurrence by Stevens, J.; dissent by Breyer, J.; decided May 27, 2003. On certiorari to the U.S. Court of Appeals for the D.C. Circuit. Agency’s general policy statement designed to inform the public of its views on the Contract Disputes Act’s proper application does not create “adverse effects of a strictly legal kind” needed to establish ripeness for review. 172 N.J.L.J. 978 ALIENS (see TORTS) APPEALS (see CIVIL PRACTICE, CRIMINAL PRACTICE, IMMIGRATION LAW) APPRAISALS (see REAL PROPERTY) ARBITRATION (see also CIVIL PRACTICE) ARBITRATION — Class Actions Green Tree Financial Corp., nka Conseco Finance Corp. v. Bazzle , No. 02-634; U.S. Supreme Court; opinion by Breyer, J.; partial dissent by Stevens, J.; dissents by Rehnquist, C.J., and Thomas, J.; decided June 23, 2003. On certiorari to the Supreme Court of South Carolina. An arbitrator must determine whether the contracts forbid class arbitration. 172 N.J.L.J. 1290 ATTORNEYS’ FEES (see also BANKRUPTCY, LEGAL PROFESSION) ATTORNEYS’ FEES — Administrative Law — Equal Access to Justice Act Scafar Contracting Inc. v. Department of Labor , No. 02-3335; Third Circuit; opinion by Nygaard, U.S.C.J.; filed April 15, 2003. Before Judges Sloviter, Nygaard and Alarcon, Circuit Judge, sitting by designation. On appeal from the Occupational Safety and Health Review Commission. The language of, and policy behind, the Equal Access to Justice Act counsels that the term “final disposition” means final and unappealable and, therefore, an application for attorneys’ fees pursuant to 5 U.S.C. § 504 is timely if filed prior to the expiration of 30 days from the date the decision of the agency becomes final and unappealable; if the secretary the Department of Labor appeals to the District Court, the fees for the civil action, as well as the fees in the agency adjudication, can be sought within 30 days following a “final judgment” as defined in 28 U.S.C. § 2412; the order of the Occupational Safety and Health Review Commission, finding that petitioner’s application was untimely, is reversed. 172 N.J.L.J. 400 ATTORNEYS’ FEES — Intellectual Property — Trademarks J&J Snack Foods Corp. v. The Earthgrains Co. et al , No. 00-6230; United States District Court (DNJ); opinion by Simandle, U.S.D.J.; filed May 9, 2003. This trademark infringement case, though not exceptional when filed, became exceptional after plaintiff received the court’s preliminary injunction opinion outlining the necessary evidence for its success on the merits, yet continued this action despite the fact that its expert report was devoid of the necessary evidence; therefore, defendants are awarded attorneys’ fees under § 35(a) of the Lanham Act; however, no costs will be awarded since the statute restricts such an award to prevailing plaintiffs. 172 N.J.L.J. 1297 AVOIDANCE (see BANKRUPTCY) BAD FAITH (see BANKRUPTCY) BANKRUPTCY Archer et ux. v. Warner , No. 01-1418; U.S. Supreme Court; opinion by Breyer, J.; dissent by Thomas, J.; decided March 31, 2003. On certiorari to the U.S. Court of Appeals for the Fourth Circuit. A debt for money promised in a settlement agreement accompanied by the release of underlying tort claims can amount to a debt for money obtained by fraud, within the nondischargeability statute’s terms. 172 N.J.L.J. 61 BANKRUPTCY — Attorneys’ Fees In re Bressman , No. 02-1725; Third Circuit; opinion by Stapleton, U.S.C.J.; filed April 25, 2003. Before Judges Fuentes, Stapleton and O’Kelley, District Judge, sitting by designation. On appeal from the District of New Jersey. [Sat below: Judge Greenaway.] DDS No. 42-8-3606 Where criminal charges were brought against the debtor and the trustee advised the law firms representing him in the criminal matter that the trustee was investigating the source of the debtor’s payment of the attorneys’ fees, the firms’ knowledge of the investigation did not, by itself, give rise to a duty on the part of the law firms to conduct an independent investigation; the District Court’s affirmance of the Bankruptcy Court’s order granting summary judgment to the law firms in the trustee’s action to recover the money paid by the debtor to the attorneys is affirmed. 172 N.J.L.J. 570 BANKRUPTCY — Avoidance — Reclamation — Rescission — UCC In re Zeta Consumer Products Corp. , No. 00-34148; United States Bankruptcy Court (DNJ); opinion by Winfield, U.S.B.J.; filed April 10, 2003. DDS No. 42-6-3666 A seller’s right to reclamation under § 2.702 of the Uniform Commercial Code is effective in a bankruptcy proceeding only to the extent provided for in 11 U.S.C. § 546(c), which is a seller’s exclusive remedy and, therefore only a written demand in accordance with § 546(c) will suffice to preserve the seller’s immunity from the trustee’s avoiding powers; unless the defendant-seller can produce evidence of compliance with the requirements of § 546(c), its assertion that it effected a reclamation of the goods is unavailing; additionally, by enacting N.J.S.A. 12A:2-702(3), providing that reclamation under § 702 is the exclusive nonbankruptcy remedy for a seller who is basing its reclamation on the insolvency of its buyer, New Jersey has abrogated the seller’s right to advance the legal theory of equitable rescission; also, by codifying a buyer’s right to rescission under § 2.608 of the UCC, a buyer cannot raise the legal theory of rescission as an independent basis for relief in a contract for the sale of goods, and the defendant-seller is precluded from raising the defense of equitable rescission by derivatively asserting that the plaintiff-buyer rescinded the contract; because of genuine issues of material fact, plaintiff-debtor’s motion for summary judgment is denied. 172 N.J.L.J. 401 BANKRUPTCY — Bad Faith — Executory Contracts In re Walden Ridge Development, L.L.C. , No. 02-45411; United States Bankruptcy Court (DNJ); opinion by Steckroth, U.S.B.J.; filed April 28, 2003. DDS No. 42-6-3667 Where the debtor filed a Chapter 11 petition the day before the seller made time of the essence for the debtor to purchase the property and the debtor’s motive in filing was to preserve its interest in the contract while it obtained the necessary financing, based on the totality of the circumstances, rather than on a rigid application of specific factors, there is no prejudice to the seller or sufficient circumstances to determine that the petition was filed in bad faith, and the seller’s motion to dismiss the petition is denied — the preservation of value is a permissible motive for filing for Chapter 11 and the filing was an appropriate exercise of business judgment and protected the equity of the debtor in the contract for the benefit of other creditors, as well as the debtor; additionally, the failure to close was occasioned by the failure to pay the purchase price and thus constitutes a monetary default which is curable through the payment of the purchase price together with fair compensation as provided in 11 U.S.C. § 365(b)(1)(A) and (B) and, therefore, the 60-day limit to cure default under 11 U.S.C. § 108(b), does not apply; where the default is nonmonetary the debtor may be precluded from assuming an executory contract only if the default is material or if the default causes substantial economic detriment; to the extent In re New Breed Realty Enterprises, Inc. holds differently, it is not followed here. 172 N.J.L.J. 492 BANKRUPTCY — Business Law — Securities Investors Protection Act In re First Interregional Equity Corporation , No. 97-02165; United States Bankruptcy Court (DNJ); opinion by Gambardella, U.S.B.J.; filed March 21, 2003. DDS No. 42-6-3329 Because the claimant’s bonds were not reflected in any of her customer accounts with the debtor-broker, and because she was aware that she was receiving interest payments above the coupon rate, she does not meet the definition of a “customer” under the Securities Investors Protection Act, and the trustee’s denial of her claim under the Act is affirmed; the delivery of the bonds to the broker was not made for safekeeping but was part of a loan agreement made in exchange for the higher interest rate, rather than having been made in connection with any market transactions. 172 N.J.L.J. 64 BANKRUPTCY — Fraudulent Transfers The Official Committee of Unsecured Creditors of Cybergenics Corporation v. Chinery, etc., et al , No. 01-3805; Third Circuit; opinion by Becker, U.S.C.J.; dissent by Fuentes, U.S.C.J.; filed May 29, 2003. Before Judges Becker, Sloviter, Scirica, Alito, Roth, McKee, Rendell, Barry, Ambro, Fuentes and Smith. On appeal from the District of New Jersey. [Sat below: Judge Brown.] DDS No. 42-8-4004 Bankruptcy courts may authorize creditors’ committees to sue derivatively to avoid fraudulent transfers for the benefit of the estate; Hartford Underwriters Ins. Co. v. Union Planters Bank, a Chapter 7 case that interpreted the text of 11 U.S.C. § 506(c) to foreclose anyone other than a trustee from seeking to recover administrative costs on its own behalf, does not operate to prevent the Bankruptcy Court from authorizing such suits; the judgment of the District Court is reversed. 172 N.J.L.J. 1177 BANKRUPTCY — Intervenors In re G-I Holdings, Inc., et al , No. 01-30135; United States Bankruptcy Court (DNJ); opinion by Gambardella, U.S.B.J.; filed May 8, 2003. The motion of the legal representative of present and future asbestos-related demands in this bankruptcy action for authority to intervene as co-plaintiff in a District Court action brought by the committee of asbestos claimants to avoid a stock transfer to the debtor’s principal shareholder is granted; the legal representative is “a party in interest” under 11 U.S.C. § 1109(b), and the right to intervene applies beyond the main bankruptcy case; however, it is for the District Court to determine whether intervention under Fed. R. Civ. P. 24 is appropriate. 172 N.J.L.J. 1294 BANKRUPTCY — Quarterly Fees — Revolving Lines of Credit In re Fabricators Supply Company , No. 02-37185; United States Bankruptcy Court (DNJ); opinion by Winfield, U.S.B.J.; filed May 5, 2003. DDS No. 42-6-3668 The process by which the debtor deposits its accounts receivable into an account controlled by the lender and the lender sweeps that account and applies the deposits to the debtor’s revolving line of credit, results in disbursements to the lender under 28 U.S.C. § 1930(a)(6), on which the quarterly fees should be calculated. 172 N.J.L.J. 571 BANKRUPTCY — Real Property — Valuations In re Slack , No. 00-61158; United States Bankruptcy Court (DNJ); opinion by Lyons, U.S.B.J.; filed March 26, 2003. DDS No. 42-6-3305 Where debtors filed a Chapter 13 petition and a plan was confirmed, and they subsequently converted their case to a Chapter 7 proceeding, the trustee’s conclusion that the value of the debtors’ residence ($43,000), less the balance on the tax lien claims ($22,337), and less the debtors’ exemption of $28,000 yielded no value to the estate is well founded, and the abandonment of the debtors’ residence is approved; under 11 U.S.C. § 348(f)(1)(B), on conversion from Chapter 13 to Chapter 7, the same value of the residence must be used. 172 N.J.L.J. 63 BANKRUPTCY FRAUD (see CRIMINAL PRACTICE) BONA FIDE OFFICE (see LEGAL PROFESSION) BUSINESS LAW (see also BANKRUPTCY) BUSINESS LAW — Taxes — Unfair Competition Lexington National Insurance Corp. v. Ranger Insurance Co. , No. 02-2635; Third Circuit; opinion by Greenberg, U.S.C.J.; filed April 17, 2003. Before Judges Scirica, Greenberg, and Gibson, Circuit Judge, sitting by designation. On appeal from the District of New Jersey. [Sat below: Judge Pisano.] DDS No. 35-8-3533 It is predicted that the New Jersey Supreme Court would hold that a business may not assert a valid claim against a competitor for unlawfully reducing its costs by underpaying its taxes — otherwise, a tidal wave of litigation could result; the dismissal of plaintiff’s claims for business interference, unfair competition and fraud based on defendant-competitor is allegedly paying less than the required tax is affirmed. 172 N.J.L.J. 322 CDS (see CRIMINAL PRACTICE) CHILD SOLDIERS (see IMMIGRATION LAW) CHOICE OF FORUM (see CIVIL RIGHTS) CIVIL PRACTICE — Appeals — Forfeitures — Limitations of Actions — Motions to Dismiss United States v. $8,221,877.16 , No. 02-1264; Third Circuit; opinion by Rendell, U.S.C.J.; filed May 28, 2003. Before Judges Becker, Rendell and Ambro. On appeal from the District of New Jersey. [Sat below: Judge Politan.] DDS No. 14-8-3908 Where the depositor brought an action in federal court in New York against the bank for breach of contract in turning over funds to the government, and also brought a motion to dismiss the government’s forfeiture action brought in federal court in New Jersey, and the New York action was transferred and consolidated with the New Jersey action, the court has jurisdiction to hear the depositor’s appeal of the denial of its motion to dismiss the complaint since the issues on appeal in the forfeiture action are completely distinct from the underlying issues in the bank action, the parties in the actions are not identical nor do they have identical interests, the actions are governed by different procedural rules and have been treated separately from the start, and disposition of the appeal in the forfeiture action would probably advance, rather than hinder, the bank action. The civil scheme for motions in Rule 12(a)(4) can be read together with the supplemental pleading requirements in Supplemental Rule C(6), and just as a civil defendant may respond to a complaint with a motion to dismiss, and must then file an answer within 10 days if the court denies the motion, a forfeiture claimant may, after being served with a complaint and filing a verified claim, respond to a forfeiture complaint by filing a motion to dismiss, and the District Court’s order holding that a forfeiture claimant may not file a motion to dismiss is reversed. In order to forfeit property that is not directly traceable to the offense under 18 U.S.C. § 984, the government must file a complaint within one year of the date of the offense; although the government did not do so here, the complaint invokes § 981 as the base cause of action, which carries with it a five year statute of limitations and, therefore, if on remand the government cannot trace the seized property to the offense committed and must resort to § 984, the forfeiture action must be dismissed. 172 N.J.L.J. 1082 CIVIL PRACTICE — Arbitration — RICO — Treble Damages Pacificare Health Systems, Inc. v. Book , No. 02-215; U.S. Supreme Court; opinion by Scalia, J.; decided April 7, 2003. On certiorari to the U.S. Court of Appeals for the Eleventh Circuit. It is unclear whether the arbitration agreements in force here prevent an arbitrator from awarding treble damages under RICO. 172 N.J.L.J. 139 CIVIL PRACTICE — Class Actions — Notice DaSilva et al v. Esmor Correctional Services Inc. et al, etc. , No. 96-3755; United States District Court (DNJ); opinion by Debevoise, U.S.D.J.; filed June 10, 2002. DDS No. 46-7-4055 Where plaintiffs did not respond in time to the original court order to opt out of the class action because of counsel’s extreme difficulty in maintaining contact with them, and for two years before the order was entered counsel pursued plaintiffs’ individual action with diligence, and none of the parties in the class action objected to the procedures set forth in the magistrate judge’s order modifying the date for submitting formal opt-out requests, plaintiffs’ motion to amend the original court order and permit them to opt out of the class action is granted. 172 N.J.L.J. 1293 CIVIL PRACTICE — Discovery — Psychiatric Examinations Bowen et al v. The Parking Authority of the City of Camden et al , No. 00-5765; United States District Court (DNJ); opinion by Rosen, U.S.M.J.; filed April 4, 2003. DDS No. 25-7-3639 Fed. R. Civ. P. 35(a) requires more than a claim for emotional distress as an element of an underlying cause of action to compel a psychiatric examination of a plaintiff; here, since plaintiff has alleged no more than a claim for emotional distress, defendant’s motion to compel such an examination is denied. 172 N.J.L.J. 489 CIVIL PRACTICE — Education — Long-Arm Jurisdiction Rodi v. Southern New England School of Law et al , No. 02-3467; United States District Court (DNJ); opinion by Rodriguez, U.S.D.J.; filed April 10, 2003. DDS No. 24-7-3832 Where plaintiff was enrolled at defendant-law school in Massachusetts and alleges that he was induced to attend based on correspondence sent to his New Jersey residence stating that the school was going to receive accreditation from the American Bar Association, plaintiff has not identified a specific act that evidences defendant’s intention to purposely avail itself to the privileges of conducting activities within New Jersey and, therefore, in personam jurisdiction does not exist over the school; additionally, subjecting an institution of higher education to jurisdiction in every state into which it grants requests for information would not comply with traditional notions of fair play and substantial justice, and the complaint is dismissed. 172 N.J.L.J. 219 CIVIL PRACTICE — Insurance — Jurisdiction Hudson News Company v. Federal Insurance Company , No. 02-CV-4810; United States District Court (DNJ); opinion by Martini, U.S.D.J.; filed April 4, 2003. DDS No. 23-7-3609 Where plaintiff’s complaint is essentially a declaratory judgment action regarding the amount of coverage for business-income loss under its insurance policy as a result of damages from the September 11, 2001, attack on the World Trade Center, plaintiff’s motion to remand the matter back to state court is granted; the fact that the underlying damages to plaintiff’s business resulted from the attack does not warrant federal jurisdiction under the Aviation and Transportation Security Act. 172 N.J.L.J. 219 CIVIL PRACTICE — Jurisdiction Jinks v. Richland County, South Carolina , No. 02-258; U.S. Supreme Court; opinion by Scalia, J.; concurrence by Souter, J.; decided April 22, 2003. On certiorari to the Supreme Court of South Carolina. Application of 28 U.S.C. § 1367 to claims brought against a state’s political subdivisions is constitutional. 172 N.J.L.J. 319 Roell v. Withrow, No. 02-69; U.S. Supreme Court; opinion by Souter, J.; dissent by Thomas, J.; decided April 29, 2003. On certiorari to the U.S. Court of Appeals for the Fifth Circuit. Consent to a magistrate judge’s designation can be inferred from a party’s conduct during litigation. 172 N.J.L.J. 398 CIVIL PRACTICE — Jurisdiction — Usury Beneficial National Bank v. Anderson , No. 02-306; U.S. Supreme Court; opinion by Stevens, J.; dissent by Scalia, J.; decided June 2, 2003. On certiorari to the U.S. Court of Appeals for the Eleventh Circuit. Respondents’ usury cause of action arose only under federal law and could, therefore, be removed under § 1441. 172 N.J.L.J. 977 CIVIL PRACTICE — Punitive Damages State Farm Mutual Automobile Insurance Co. v. Campbell , No. 01-1289; U.S. Supreme Court; opinion by Kennedy, J.; dissents by Scalia, Thomas and Ginsburg, JJ.; decided April 7, 2003. On certiorari to the Supreme Court of Utah. A punitive damages award of $145 million, where full compensatory damages are $1 million, is excessive and violates the due process clause of the Fourteenth Amendment. 172 N.J.L.J. 138 CIVIL RIGHTS (see also EMPLOYMENT LAW) CIVIL RIGHTS — Choice of Forum — Class Actions — Disabilities — Discrimination — Standing Clark et al v. Burger King Corporation et al , No. 02-0246; United States District Court (DNJ); opinion by Irenas, U.S.D.J.; filed April 4, 2003. Where plaintiffs, a disabled individual and a nonprofit advocacy group, brought an underlying putative national class action against a national chain of restaurants, alleging failure to provide sufficient access to persons with disabilities under Title III of the Americans with Disabilities Act and various state disability statutes, defendant has not met its burden of showing that New Jersey is an inconvenient forum, and the balancing of private and public interests weighs heavily in favor of denying defendant’s motion to transfer the action to Florida; additionally, the individual plaintiff has standing to assert his ADA claims as to restaurants he has visited prior to filing the underlying action, but not as to restaurants he plans to visit in the future; plaintiff-organization, however, lacks standing to sue in its own right, since it has not suffered an injury-in-fact; although it may bring an action on behalf of its members, it must amend its complaint to state which members have visited which restaurants. 172 N.J.L.J. 144 CIVIL RIGHTS — Discrimination — Professional Corporations Clackamas Gastroenterology Associates, P.C. v. Wells, No. 01-1435; U.S. Supreme Court; opinion by Stevens, J.; dissent by Ginsburg, J.; decided April 22, 2003. On certiorari to the U.S. Court of Appeals for the Ninth Circuit. The common-law element of control is the principal guidepost to be followed in deciding whether professional corporation’s director-shareholders should be counted as “employees.” 172 N.J.L.J. 319 CIVIL RIGHTS — Discrimination — Title VII Desert Palace, Inc., d/b/a Caesars Palace Hotel & Casino v. Costa , No. 02-679; U.S. Supreme Court; opinion by Thomas, J.; concurrence by O’Connor, J.; decided June 9, 2003. On certiorari to the U.S. Court of Appeals for the Ninth Circuit. Direct evidence of discrimination is not required for a plaintiff to obtain a mixed-motive jury instruction under Title VII. 172 N.J.L.J. 1081 CIVIL RIGHTS — Fair Housing City of Cuyahoga Falls, Ohio v. Buckeye Community Hope Foundation , No. 01-1269; U.S. Supreme Court; opinion by O’Connor, J.; concurrence by Scalia, J.; decided March 25, 2003. On certiorari to the U.S. Court of Appeals for the Sixth Circuit. Since proof of racially discriminatory intent is required to show an equal protection clause violation, citizens group have not presented an equal protection claim that can survive summary judgment. 172 N.J.L.J. 61 CLASS ACTIONS (see ARBITRATION, CIVIL PRACTICE, CIVIL RIGHTS, REAL PROPERTY) COMMERCE CLAUSE (see CONSTITUTIONAL LAW) CONSENT DECREES (see ENVIRONMENTAL LAW) CONSTITUTIONAL LAW — Commerce Clause — Pre-emption Pharmaceutical Research and Manufacturers of America v. Walsh, Acting Commissioner, Maine Department of Human Services , No. 01-188; U.S. Supreme Court; opinion by Stevens, J.; concurrences by Breyer, Scalia and Thomas, JJ.; partial dissent by O’Connor, J.; decided May 19, 2003. On certiorari to the U.S. Court of Appeals for the First Circuit. Insufficient showing made that state law, requiring drug companies to pay rebates on drug purchases for Medicaid patients and needy citizens, is pre-empted by the Medicaid Act or violates the negative Commerce Clause. 172 N.J.L.J. 766 CONSTITUTIONAL LAW — Commerce Clause — Privileges and Immunities Clause Hillside Dairy Inc. v. Lyons, Secretary, California Department of Food and Agriculture , No. 01-950; U.S. Supreme Court; opinion by Stevens, J.; partial dissent by Thomas, J.; decided June 9, 2003, together with No. 01-1018, Ponderosa Dairy et al v. Lyons, Secretary, California Department of Food and Agriculture, et al, both on certiorari to the U.S. Court of Appeals for the Ninth Circuit. California’s milk pricing and pooling regulations are not exempted from Commerce Clause scrutiny. 172 N.J.L.J. 1082 CONSTITUTIONAL LAW — Eighth Amendment — Prisoners’ Rights Overton, Director, Michigan Department of Corrections v. Bazzetta , No. 02-94; U.S. Supreme Court; opinion by Kennedy, J.; concurrences by Stevens and Thomas, JJ.; decided June 16, 2003. On certiorari to the U.S. Court of Appeals for the Sixth Circuit. Visitation restriction for inmates with two substance-abuse violations is not a cruel and unusual confinement condition violating the Eighth Amendment. 172 N.J.L.J. 1176 CONSTITUTIONAL LAW — Equal Protection Grutter v. Bollinger , No. 02-241; U.S. Supreme Court; opinion by O’Connor, J.; concurrence by Ginsburg, J.; partial dissents by Scalia and Thomas, JJ.; dissents by Rehnquist, C.J., and Kennedy, J.; decided June 23, 2003. On certiorari to the U.S. Court of Appeals for the Sixth Circuit. Law school’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body is not prohibited by the Equal Protection Clause, Title VI or 42 U.S.C. § 1981. 172 N.J.L.J. 1286 Gratz v. Bollinger, No. 02-516; U.S. Supreme Court; opinion by Rehnquist, C.J.; concurrences by O’Connor, Thomas and Breyer, JJ.; dissents by Stevens, Souter and Ginsburg, JJ.; decided June 23, 2003. On certiorari to the U.S. Court of Appeals for the Sixth Circuit. Because the university’s use of race in its current freshman admissions policy is not narrowly tailored to achieve respondents’ asserted interest in diversity, the policy violates the Equal Protection Clause. 172 N.J.L.J. 1287 CONSTITUTIONAL LAW — Equal Protection — Taxation Fitzgerald, Treasurer of Iowa v. Racing Association of Central Iowa , No. 02-695; U.S. Supreme Court; opinion by Breyer, J.; decided June 9, 2003. On certiorari to the Supreme Court of Iowa. Iowa’s differential tax rate on racetrack slot machine revenues does not violate the equal protection clause. 172 N.J.L.J. 1082 CONSTITUTIONAL LAW — First Amendment — Fraud — Fund Raising Illinois ex rel. Madigan, Attorney General v. Telemarketing Associates, Inc. , No. 01-1806; U.S. Supreme Court; opinion by Ginsburg, J.; concurrence by Scalia, J.; decided May 5, 2003. On certiorari to the Supreme Court of Illinois. States may maintain fraud actions when fund-raisers make false or misleading representations designed to deceive donors about how their donations will be used. 172 N.J.L.J. 488 CONSTITUTIONAL LAW — First Amendment — Freedom of Speech — Overbreadth Virginia v. Hicks , No. 02-371; U.S. Supreme Court; opinion by Scalia, J.; concurrence by Souter, J.; decided June 16, 2003. On certiorari to the Supreme Court of Virginia. Public housing authority’s trespass policy, authorizing arrest of any person lacking “a legitimate business or social purpose” for being on the property, is not facially invalid under the First Amendment’s overbreadth doctrine. 172 N.J.L.J. 1175 CONSTITUTIONAL LAW — First Amendment — Political Speech Federal Election Commission v. Beaumont , No. 02-403; U.S. Supreme Court; opinion by Souter, J.; concurrence by Kennedy, J.; dissent by Thomas, J.; decided June 16, 2003. On certiorari to the U.S. Court of Appeals for the Fourth Circuit. Nonprofit advocacy corporations are subject to the same prohibition on direct contributions that binds other corporations. 172 N.J.L.J. 1174 CONSTITUTIONAL LAW — First Amendment — Spending Power United States v. American Library Association, Inc. , No. 02-361; U.S. Supreme Court; opinion by Rehnquist, C.J.; concurrences by Kennedy and Breyer, JJ.; dissents by Stevens and Souter, JJ.; decided June 23, 2003. On appeal from the U.S. District Court for the Eastern District of Pennsylvania. Because public libraries’ use of Internet filtering software does not violate their patrons’ First Amendment rights, the Children’s Internet Protection Act does not induce libraries to violate the Constitution and is a valid exercise of Congress’ spending power. 172 N.J.L.J. 1288 CONSTITUTIONAL LAW — Free Speech Virginia v. Black , No. 01-1107; U.S. Supreme Court; opinion by O’Connor, J.; concurrence by Stevens, J.; partial dissents by Scalia and Souter, JJ.; dissent by Thomas, J.; decided April 7, 2003. On certiorari to the Supreme Court of Virginia. A state may, consistent with the First Amendment, ban cross burning carried out with the intent to intimidate. 172 N.J.L.J. 139 CONSTITUTIONAL LAW — Pre-emption American Insurance Association v. Garamendi, Insurance Commissioner, State of California , No. 02-722; U.S. Supreme Court; opinion by Souter, J.; dissent by Ginsburg, J.; decided June 23, 2003. On certiorari to the U.S. Court of Appeals for the Ninth Circuit. State’s Holocaust Victim Insurance Relief Act interferes with the president’s conduct of the nation’s foreign policy and is therefore pre-empted. 172 N.J.L.J. 1289 CONSTITUTIONAL LAW — Sovereign Immunity Franchise Tax Board of California v. Hyatt , No. 02-42; U.S. Supreme Court; opinion by O’Connor, J.; decided April 23, 2003. On certiorari to the Supreme Court of Nevada. The U.S. Constitution’s full faith and credit clause does not require Nevada to give full faith and credit to California’s statutes providing its tax agency with immunity from suit. 172 N.J.L.J. 320 CONSTITUTIONAL LAW — States’ Immunity Nevada Dept. of Human Resources v. Hibbs , No. 01-1368; U.S. Supreme Court; opinion by Rehnquist, C.J.; concurrences by Souter and Stevens, JJ.; dissents by Scalia and Kennedy, JJ.; decided May 27, 2003. State employees may recover money damages in federal court in the event of the state’s failure to comply with the Family and Medical Leave Act’s family-care provision. 172 N.J.L.J. 766 CONSTITUTIONAL LAW — Takings Brown v. Legal Foundation of Washington , No. 01-1325; U.S. Supreme Court; opinion by Stevens, J.; dissents by Scalia and Kennedy, JJ.; decided March 26, 2003. On certiorari to the U.S. Court of Appeals for the Ninth Circuit. A state law requiring that client funds that could not otherwise generate net earnings for the client be deposited in an IOLTA account is not a regulatory taking, but a law requiring that the interest on those funds be transferred to a different owner for a legitimate public use could be a per se taking requiring the payment of just compensation to the client; because just compensation is measured by the owner’s pecuniary loss — which is zero — there has been no violation of the just compensation clause. 172 N.J.L.J. 60 CONSUMER FRAUD (see REAL PROPERTY) COPYRIGHT (see INTELLECTUAL PROPERTY) CORAM NOBIS (see CRIMINAL PRACTICE) CRIMINAL PRACTICE (see SOCIAL SERVICES LAW) CRIMINAL PRACTICE — Appeals — Judges — Jurisdiction Nguyen v. United States , No. 01-10873; U.S. Supreme Court; opinion by Stevens, J.; dissent by Rehnquist, C.J.; decided June 9, 2003, together with No. 02-5034, Phan v. United States, both on certiorari to the U.S. Court of Appeals for the Ninth Circuit. Congress did not contemplate the judges of the District Court for the Northern Mariana Islands to be “district judges” within the meaning of the statute authorizing the assignment of one or more district judges within a circuit to sit on the court of appeals when the business of court so requires. 172 N.J.L.J. 1081 CRIMINAL PRACTICE — Bankruptcy Fraud — Sentencing United States v. Brennan , No. 01-3148; Third Circuit; opinion by Smith, U.S.C.J.; filed April 7, 2003. Before Judges Scirica, Barry and Smith. On appeal from the District of New Jersey. [Sat below: Judge Brown.] Although appellant was convicted for concealing bearer bonds with a face value of $4 million from the bankruptcy estate, the District Court correctly imposed its sentence, based on profits appellant received of $18 million, resulting in a loss to the bankruptcy estate of $22 million — bankruptcy fraud is a continuing offense that lasts until it is detected or its consequences are purged; additionally, the application of the November 1, 2000, sentencing guidelines did not violate the ex post facto clause because, since appellant did not reveal the existence of the bonds to the Bankruptcy Court or the trustee until after the indictment, the concealment component of the fraud was ongoing as of November 1, 2000; additionally, there was no prosecutorial misconduct and the convictions for fraud and money laundering were not against the weight of the evidence; furthermore, the supplemental charge to the jury to continue deliberating was not coercive; the conviction and sentence are affirmed. 172 N.J.L.J. 140 CRIMINAL PRACTICE — CDS — Sentencing Gori v. United States , No. 02-2409; Third Circuit; opinion by Ambro, U.S.C.J.; filed April 8, 2003. Before Judges Becker, Rendell and Ambro. On appeal from the District of New Jersey. [Sat below: Judge Pisano.] Where defendant was charged with conspiracy to manufacture a controlled substance, and the indictment did not allege the precise weight of drugs involved in the conspiracy but charged him with “intent to distribute more than 500 grams of methamphetamine,” there was no violation of due process since “more than 500 grams of methamphetamine” put defendant on notice that, if convicted, he would receive a sentence of at least 10 years under 21 U.S.C. § 841(b)(1)(A)(viii); also, the failure to mention the specific amount of drugs did not violate Apprendi v. New Jersey. 172 N.J.L.J. 221 CRIMINAL PRACTICE — Coram Nobis — Habeas Corpus Obado v. State of New Jersey , No. 02-4080; Third Circuit; per curiam opinion; filed May 9, 2003. Before Judges Becker, Aldisert and Weis. On appeal from the District of New Jersey. [Sat below: Judge Hochberg.] DDS No. 14-8-3679 Since appellant is no longer subject to the terms of his probation, nor is his conduct subject to the supervision of the probation authorities, the dismissal of appellant’s habeas corpus petition for want of subject-matter jurisdiction is affirmed; the payment of restitution or a fine, absent more, is not the sort of “significant restraint on liberty” contemplated in the “custody” requirement of the federal habeas corpus statutes; while appellant may be able to bring a writ of error (coram nobis), he must do so in state court since he seeks relief from a state-court conviction. 172 N.J.L.J. 769 CRIMINAL PRACTICE — Education — Mail Fraud United States v. Alsugair , No. 02-779; United States District Court (DNJ); opinion by Orlofsky, U.S.D.J.; filed April 8, 2003. DDS No. 14-7-3835 In addition to an allegation that defendant deprived a victim of money or property, the mail-fraud statute, 18 U.S.C. § 1341, requires an allegation that the defendant also obtained money or property; here, where the government alleged that defendant had an imposter take the Test of English as a Foreign Language for him, depriving the Education Testing Service of its property interest in its copyright, trademark, administration and testing services and good will, the allegations relating to copyright and services are dismissed from the indictment because services are not a traditional property interest and there is nothing to suggest that defendant retained a copy of the exam, thereby violating ETS’s copyright. 172 N.J.L.J. 220 CRIMINAL PRACTICE — Evidence — Parole United States v. Cruz , No. 02-2634; Third Circuit; opinion by Greenberg, U.S.C.J.; filed April 17, 2003. Before Judges Scirica, Greenberg, and Gibson, Circuit Judge, sitting by designation. On appeal from the District of New Jersey. [Sat below: Judge Bissell.] DDS No. 14-8-3534 Where the undercover agent dropped defendant off to meet with his parole officer, and the co-defendant then delivered the drugs to the agent before taking the proceeds from the sale to defendant, defendant’s parole status provided an explanation for his using the co-defendant to perform the hand-to-hand street transactions and was probative of a material issue other than his character, and therefore admissible under Fed. R. Evid. 404(b); the judgment of conviction and sentence are affirmed. 172 N.J.L.J. 399 CRIMINAL PRACTICE — Fiduciaries — Mail Fraud United States v. Murphy , No. 01-3757; Third Circuit; opinion by Becker, U.S.C.J.; filed March 19, 2003. Before Judges Becker, Scirica and McKee. On appeal from the District of New Jersey. [Sat below: Judge Brown.] Where defendant, a former chairman of the Republican Party in Passaic County, was convicted of mail fraud, and based on the Second Circuit decision of United States v. Margiotta the government had argued that defendant had attained such a dominant role in the county’s political system that he could be considered the equivalent of a publicly elected official, and that he had a fiduciary duty to the county and its citizens to provide honest services, which he breached by not informing county officials about the fraudulent nature of his contracts-for-payments scheme, the conviction must be reversed — without the anchor of a fiduciary relationship established by state or federal law, it was improper for the District Court to allow the jury to create one, and the Margiotta rationale is an overreaching interpretation of the mail-fraud statute; additionally, because the evidence the government presented to support its invalid Margiotta theory tainted the jury’s verdict on the Travel Act, that conviction must be reversed as well, and the matter is remanded for a new trial. 172 N.J.L.J. 64 CRIMINAL PRACTICE — Fifth Amendment — Self-Incrimination Chavez v. Martinez , No. 01-1444; U.S. Supreme Court; opinion by Thomas, J.; concurrences by Souter and Scalia, JJ.; partial dissents by Stevens, Kennedy and Ginsburg, JJ.; decided May 27, 2003. On certiorari to the U.S. Court of Appeals for the Ninth Circuit. Coercive questioning by police did not deprive interrogee of his Fifth Amendment rights, despite the lack of Miranda warnings, since the answers were never used against him in a criminal proceeding. 172 N.J.L.J. 977 CRIMINAL PRACTICE — Habeas Corpus Woodford v. Garceau , No. 01-1862; U.S. Supreme Court; opinion by Thomas, J.; concurrence by O’Connor, J.; dissent by Souter, J.; decided March 25, 2003. On certiorari to the U.S. Court of Appeals for the Ninth Circuit. For purposes of applying Lindh v. Murphy, a case does not become “pending” until an actual application for habeas relief is filed in federal court, and thus, respondent’s application is subject to Antiterrorism and Effective Death Penalty Act amendments because it was not filed until the law’s effective date. 172 N.J.L.J. 61 Price, Warden v. Vincent, No. 02-524; U.S. Supreme Court; opinion by Rehnquist, C.J.; decided May 19, 2003. On certiorari to the U.S. Court of Appeals for the Sixth Circuit. De novo review of habeas corpus denial is not available where the parties do not dispute the underlying facts. 172 N.J.L.J. 768 CRIMINAL PRACTICE — Ineffective Assistance of Counsel — Post-Conviction Relief Massaro v. United States , No. 01-1559; U.S. Supreme Court; opinion by Kennedy, J.; decided April 23, 2003. On certiorari to the U.S. Court of Appeals for the Second Circuit. An ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under 28 U.S.C. § 2255, whether or not the petitioner could have raised the claim on direct appeal. 172 N.J.L.J. 319 CUSTODY (see FAMILY LAW) DEFAULTS (see REAL PROPERTY) DETENTION (see IMMIGRATION LAW) DISABILITIES (see CIVIL RIGHTS, SCHOOLS and EDUCATION) DISCOVERY (see CIVIL PRACTICE) DISCRIMINATION (see CIVIL RIGHTS, EMPLOYMENT LAW) DYFS (see FAMILY LAW) EDUCATION (see CIVIL PRACTICE, CRIMINAL PRACTICE) EIGHTH AMENDMENT (see CONSTITUTIONAL LAW) ELECTION LAW — Redistricting Branch v. Smith , No. 01-1437; U.S. Supreme Court; opinion by Scalia, J.; concurrences by Kennedy and Stevens, J.; partial dissent by O’Connor, J.; decided March 31, 2003, together with No. 01-1596, Smith v. Branch, both on certiorari to the U.S. District Court for the Southern District of Mississippi. The District Court properly enjoined enforcement of a state-court redistricting plan that was subject to § 5 of the Voting Rights Act. 172 N.J.L.J. 62 EMPLOYMENT LAW (see also GOVERNMENT) EMPLOYMENT LAW — Civil Rights — Discrimination — Retaliation — Sexual Harassment Hargrave v. County of Atlantic et al , No. 00-2568; United States District Court (DNJ); opinion by Brotman, U.S.D.J.; filed May 13, 2003. DDS No. 25-7-3690 Plaintiff has offered sufficient evidence that her supervisor made several vulgar and offensive comments to her and her female co-workers — most of which contained obvious or readily discernible sexual overtones and innuendo, as well as aggressive and intimidating behavior by calling her a “liar” and a “zero” during a meeting to address her concerns about his perceived harassment — to withstand summary judgment for her hostile work environment and sexual harassment claims under Title VII and New Jersey’s Law Against Discrimination; additionally, a rational fact finder could conclude that the use of the N word and “you people” exhibited racial prejudice or hostility to survive summary judgment for racial harassment; while the timing of plaintiff’s suspension is not particularly indicative of retaliation against plaintiff for filing discrimination charges, testimony concerning the circumstances surrounding the municipal employer’s decision to discipline plaintiff, together with evidence of her supervisor’s antagonistic behavior and expressions of “retaliatory animus,” is sufficient for purposes of plaintiff’s prima facie case to raise a genuine issue as to whether a causal connection exists between her protected activity in reporting the claims and her suspension. While summary judgment is granted in so far as plaintiff seeks to hold the individual defendants personally liable for the Title VII violations, there is evidence that plaintiff’s supervisors contributed to the creation of a racially hostile work environment by harassing plaintiff on the basis of her race, and that her immediate supervisor conducted himself in a manner hostile to female employees, and summary judgment is denied on plaintiff’s claim under New Jersey’s Law Against Discrimination. Because the alleged racial and sexual harassment violated not only the statutory protections of Title VII, but also plaintiff’s equal protection rights under the Fourteenth Amendment, she may pursue her action under 42 U.S.C. § 1983 based on those allegations; however, she cannot pursue her § 1983 action based on claims of retaliation since that right is exclusively created under Title VII. 172 N.J.L.J. 1084 EMPLOYMENT LAW — ERISA Bauer v. Summit Bancorp , No. 01-3624; Third Circuit; opinion by Hill, U.S.C.J.; filed March 25, 2003. Before Judges Becker, McKee and Hill. On appeal from the District of New Jersey. [Sat below: Judge Brown.] ERISA does not forbid an employer to limit participation in its retirement plan to salaried employees, and summary judgment in favor of defendant on plaintiff’s claim that his employer’s plan violates ERISA by excluding hourly employees is affirmed. 172 N.J.L.J. 63 ENVIRONMENTAL LAW — Consent Decrees Department of Environmental Protection v. Gloucester Environmental Management Services Inc. , No. 84-0152; United States District Court (DNJ); opinion by Simandle, U.S.D.J.; filed May 29, 2003. Where the parties agree that the presence of radionuclides in the effluent from the landfill no longer presents a risk of harm to the human environment because its levels meet the most stringent drinking water standards, and the consent decree entered into by the parties, requiring on-site pretreatment of the water before being discharged to the county sewer system via the municipal utility authority’s pipelines, shall be enforced; the municipal authority did not raise any alleged material breach at any time prior to having requested and accepted the connection user fee in exchange for the issuance of the discharge permit, and by its actions elected to treat the sewer agreement as valid and binding, and therefore, as no material breach of the agreement has occurred. 172 N.J.L.J. 1189 EQUAL ACCESS TO JUSTICE ACT (see ATTORNEYS’ FEES) EQUAL PROTECTION (see CONSTITUTIONAL LAW) ERISA (see also EMPLOYMENT LAW, HEALTH CARE) ERISA Black & Decker Disability Plan v. Nord , No. 02-469; U.S. Supreme Court; opinion by Ginsburg, J.; decided May 27, 2003. On certiorari to the U.S. Court of Appeals for the Ninth Circuit. ERISA does not require plan administrators to accord special deference to the opinions of treating physicians. 172 N.J.L.J. 976 EVIDENCE (see CRIMINAL PRACTICE, IMMIGRATION LAW, TORTS) EXECUTORY CONTRACTS (see BANKRUPTCY) FALSE CLAIMS ACT (see GOVERNMENT) FAIR HOUSING (see CIVIL RIGHTS) FAMILY LAW — Custody — International Law Delvoye v. Lee , No. 02-3943; Third Circuit; opinion by Schwarzer, U.S.D.J.; filed May 20, 2003. Before Judges Alito, McKee and Schwarzer, District Judge, sitting by designation. On appeal from the District of New Jersey. [Sat below: Judge Hochberg.] DDS No. 20-8-3833 Where the parties had met in New York and respondent became pregnant there, and, at petitioner’s urging, traveled to petitioner’s residence in Belgium to avoid the cost of the birth of the child, intending to live there only temporarily, she lacked the requisite “degree of common purpose” to habitually reside in Belgium and, therefore, the child did not become a resident there; the order of the District Court, denying the petition to return the child to Belgium under the Hague Convention on the Civil Aspects of International Child Abduction, is affirmed. 172 N.J.L.J. 978 FAMILY LAW — DYFS — Right to Know Charlie and Nadine H. et al v. Whitman et al , No. 99-3678; United States District Court (DNJ); opinion by Hughes, U.S.M.J.; filed March 20, 2003. DDS No. 52-7-3501 Although confidentiality provisions established by New Jersey have a very clear purpose — to protect vulnerable children, to encourage persons with knowledge of the abuse or neglect of children to report such abuse or neglect, and to invite families to openly communicate with professionals to seek the assistance they need — those interests must be balanced with the interest of the public at large, who have a right to know what is happening in its public agencies, and limited information regarding the status of the children under the care of the Division of Youth and Family Services should be subject to disclosure to the public documents related to (1) “death reports,” (2) “critical incident reports,” and (3) “substantiated reports” in abuse cases, with identifying information redacted. 172 N.J.L.J. 322 FEDERAL COURTS (see LEGAL PROFESSION) FEDERAL EMPLOYEES (see TORTS) FIDUCIARIES (see CRIMINAL PRACTICE) FIFTH AMENDMENT (see CRIMINAL PRACTICE) FIRST AMENDMENT (see CONSTITUTIONAL LAW) FORCED MEDICATION (see PRISONERS’ RIGHTS) FORECLOSURES (see REAL PROPERTY) FORFEITURES (see CIVIL PRACTICE) FRAUD (see CONSTITUTIONAL LAW, LEGAL PROFESSION) FRAUDULENT TRANSFERS (see BANKRUPTCY) FREE SPEECH (see CONSTITUTIONAL LAW) FREEDOM OF SPEECH (see CONSTITUTIONAL LAW) FUND RAISING (see CONSTITUTIONAL LAW) GOVERNMENT — Employment Law — False Claims Act Foundation for Fair Contracting, Ltd. v. G&M Eastern Contracting et al , No. 01-0034; United States District Court (DNJ); opinion by Simandle, U.S.D.J.; filed April 29, 2003. Plaintiff’s allegations brought under the False Claims Act that defendant falsified the records of its employees who worked on a public-housing project are barred by 31 U.S.C. § 3730(e)(3) as being “subject of a civil suit or an administrative civil money penalty proceeding” in which the government was a party, because they are based on transactions in which the Department of Labor obtained the compromise relief of defendants paying back wages; defendant’s motion for summary judgment is granted since the court lacks subject-matter jurisdiction under § 3730(e)(3). 172 N.J.L.J. 769 HABEAS CORPUS (see CRIMINAL PRACTICE) HEALTH CARE — ERISA Kentucky Association of Health Plans, Inc. v. Miller, Commissioner, Kentucky , No. 00-1471; U.S. Supreme Court; opinion by Scalia, J.; decided April 2, 2003. On certiorari to the U.S. Court of Appeals for the Sixth Circuit. State’s “any willing provider” statutes — forbidding insurers from discriminating against chiropractors as health-care providers — are “law[s] . . . which regulat[e] insurance” and thus are pre-empted by ERISA. 172 N.J.L.J. 140 HEARSAY (see IMMIGRATION LAW) HOMOSEXUALS (see IMMIGRATION LAW) IMMIGRATION LAW Avila-Macias v. Ashcroft , No. 0090-1: A39 292 486; Third Circuit, opinion by Barry, U.S.C.J.; filed January 23, 2003 (submitted for publication May 9, 2003). Before Judges Scirica, Barry and Smith. On appeal from the Immigration and Naturalization Service Agency. DDS No. 51-8-3678 Section 305(a)(5) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which gives the Attorney General the authority to reinstate a prior order of removal where an alien has illegally re-entered the United States, also permits the reinstatement of a prior order of deportation; the Immigration and Naturalization Service order reinstating a prior order of deportation against petitioner is affirmed. 172 N.J.L.J. 769 IMMIGRATION LAW — Appeals — Removal Bejar v. Ashcroft , No. 02-1897; Third Circuit; opinion by Becker, U.S.C.J.; filed March 19, 2003. Before Judges Becker, Nygaard and Ambro. Submitted under Third Circuit LAR 34.1(a). DDS No. 51-8-3907 Since the Immigration and Nationality Act does not provide for an automatic stay of removal during the 30-day period to appeal an immigration judge’s denial of a motion to reopen, and as petitioner failed to request such a stay, the Immigration and Naturalization Service acted lawfully in removing her from the United States before the period lapsed. 172 N.J.L.J. 1290 IMMIGRATION LAW — Child Soldiers Lukwago v. Ashcroft , No. 02-1812; Third Circuit; opinion by Sloviter, U.S.C.J.; filed May 14, 2003. Before Judges Sloviter, Rendell and Greenberg. On petition for review of an order of the Board of Immigration Appeals. DDS No. 51-8-3751 Although petitioner has not demonstrated that the Ugandan rebel group that abducted him and forced him to fight as a child-soldier did so based on his age, his membership in the group of former child-soldiers who have escaped constitutes a “particular social group” for purposes of determining asylum, and he has demonstrated that there is a reasonable probability that the rebel group will target him for future persecution if he returns to Uganda; the matter is remanded to the Board of Immigration Appeals. 172 N.J.L.J. 979 IMMIGRATION LAW — Detention Demore, District Director, Immigration and Naturalization Service v. Kim , No. 01-1491; U.S. Supreme Court; opinion by Rehnquist, C.J.; concurrences by Kennedy and O’Connor, JJ.; partial dissents by Souter and Breyer, JJ.; decided April 29, 2003. On certiorari to the U.S. Court of Appeals for the Ninth Circuit. Though federal courts have jurisdiction to grant habeas relief to an alien challenging detention under Immigration and Nationality Act § 1226(c), such detention for the brief period necessary for the alien’s removal proceedings does not violate due process. 172 N.J.L.J. 398 IMMIGRATION LAW — Evidence — Hearsay Ezeagwuna v. Ashcroft , No. 01-3294; Third Circuit; opinion by Rendell, U.S.C.J.; filed April 14, 2003. Before Judges Becker, Scirica and Rendell. On petition for review from an order of the Board of Immigration Appeals. The Board of Immigration Appeals violated petitioner’s due process rights by resting its credibility determination almost entirely on a letter from the Department of State that essentially repeats the information in a letter from the United States embassy in Cameroon, which did not contain a copy of an investigative report but concluded that the documents provided to the Immigration and Naturalization Service by petitioner were fraudulent; because the letter relied on by the BIA is hearsay on hearsay, it is untrustworthy, and the matter is remanded to the BIA for further proceedings regarding the petition without reliance on the letter. 172 N.J.L.J. 321 IMMIGRATION LAW — Homosexuals Amanfi v. Ashcroft , Nos. 01-4477 and 02-1541; Third Circuit; opinion by Becker, U.S.C.J.; filed May 16, 2003. Before Judges Becker, Nygaard and Ambro. On petition for review of an order of the Board of Immigration Appeals. DDS No. 51-8-3750 Persecution “on account of” membership in a social group, as defined in INA §§ 101(a)(42)(A) and 241(b)(3), includes imputed political opinions (i.e., what the persecutor perceives to be the applicant’s membership in a social group); because petitioner’s theory of persecution on account of his imputed membership in a social group (homosexuals) is supported by the Board of Immigration Appeals’ precedents establishing homosexuals as a protected social group and supporting asylum claims on the basis of imputed political opinion, the petition of review is granted with respect to petitioner’s application for asylum and withholding of removal. 172 N.J.L.J. 768 IMMIGRATION LAW — Right to Counsel Ponce-Leiva v. Ashcroft , No. 01-3900; Third Circuit, opinion by McClure, U.S.D.J.; dissent by Rendell, U.S.C.J.; filed June 5, 2003. Before Judges Sloviter, Rendell and McClure, District Judge, sitting by designation. On petition for review of an order of the Board of Immigration Appeals. Where a hearing was set by the court eight months in advance, and two days before the hearing petitioner’s counsel advised the court that he would not appear, there was no abuse of discretion or denial of petitioner’s right to counsel by the court’s refusal to grant a continuance and conducting the hearing without counsel present; no emergency on the part of counsel was alleged, and the immigration judge made a reasonable determination that in light of counsel’s previous deficient performance with respect to petitioner his absence at the hearing would have made no difference. 172 N.J.L.J. 1291 IMMUNITY (see SCHOOLS and EDUCATION, TORTS) INEFFECTIVE ASSISTANCE OF COUNSEL (see CRIMINAL PRACTICE) INSANITY (see SOCIAL SERVICES LAW) INSURANCE (see CIVIL PRACTICE) INTELLECTUAL PROPERTY (see ATTORNEYS’ FEES) INTELLECTUAL PROPERTY — Copyright Dastar Corp. v. Twentieth Century Fox Film Corp. , No. 02-428; U.S. Supreme Court; opinion by Scalia, J.; recusal by Breyer, J.; decided June 2, 2003. On certiorari to the U.S. Court of Appeals for the Ninth Circuit. The Lanham Act does not prevent the unaccredited copying of an uncopyrighted work. 172 N.J.L.J. 976 INTEREST RATES (see REAL PROPERTY) INTERNATIONAL LAW (see FAMILY LAW) INTERVENORS (see BANKRUPTCY) JUDGES (see CRIMINAL PRACTICE) JUDICIAL REVIEW (see ADMINISTRATIVE LAW) JURISDICTION (see CIVIL PRACTICE, CRIMINAL PRACTICE, LABOR AND EMPLOYMENT LAW) LABOR AND EMPLOYMENT LAW — Jurisdiction Breuer v. Jim’s Concrete of Brevard, Inc. , No. 02-337; U.S. Supreme Court; opinion by Souter, J.; decided May 19, 2003. On certiorari to the U.S. Court of Appeals for the Eleventh Circuit. Fair Labor Standards Act’s dual venue provision does not bar removal of a suit from state to federal court. 172 N.J.L.J. 767 LEGAL PROFESSION — Attorneys’ Fees — Fraud Morganroth & Morganroth v. Norris, McLaughlin & Marcus, P.C. , No. 02-2087; Third Circuit; opinion by Rosenn, U.S.C.J.; filed May 30, 2003. Before Judges Barry, Rosenn and Pollak, District Judge, sitting by designation. On appeal from the District of New Jersey. [Sat below: Judge Brown.] DDS No. 04-8-4003 When a complaint alleges that an attorney has knowingly and intentionally participated in a client’s unlawful conduct to hinder, delay, and/or fraudulently obstruct the enforcement of a judgment, the plaintiff has stated a claim under New Jersey law for creditor fraud against the attorney even if the complaint does not allege any misrepresentation by the attorney to the judgment creditor, or that the creditor detrimentally relied on such misrepresentation; here, where plaintiff, a Michigan law firm that won a judgment against its former client for legal services, alleged that defendant, a New Jersey law firm, prepared a false deed and lease with the intent to defraud plaintiff and hinder the enforcement of the judgment, plaintiff has alleged facts that, if proved, would establish that the defendants went beyond the bounds of permissible advocacy, and the dismissal of plaintiff’s fraud claim is reversed; additionally, although plaintiff is not entitled to attorneys’ fees arising out of the original suit against its former client, the additional expenses in fees and costs incurred to enforce the judgment as a result of defendants’ alleged fraud are recoverable. 172 N.J.L.J. 1180 LEGAL PROFESSION — Bona Fide Office — Federal Courts Shamshoum et al v. The Bombay Café et al , No. 02-4276; United States District Court (DNJ); opinion by Rosen, U.S.M.J.; filed April 14, 2003. DDS No. 04-7-3520 Plaintiff’s attorney, who is a member of the bars of New Jersey, New York, Pennsylvania and the District Court for the District of New Jersey, may practice before the District Court under Local Civil Rule 101.1(b), even though he does not maintain a bona fide office in New Jersey, as required in the New Jersey Court Rules; there is no requirement under the Local Rules for practicing before the District Court. 172 N.J.L.J. 324 LIMITATIONS OF ACTIONS (see CIVIL PRACTICE) LONG-ARM JURISDICTION (see CIVIL PRACTICE) LONGSHOREMEN (see WORKERS’ COMPENSATION) MAIL FRAUD (see CRIMINAL PRACTICE) MORTGAGES (see REAL PROPERTY) MOTIONS TO DISMISS (see CIVIL PRACTICE) NOTICE (see CIVIL PRACTICE) OVERBREADTH (see CONSTITUTIONAL LAW) PAROLE (see CRIMINAL PRACTICE) POLITICAL SPEECH (see CONSTITUTIONAL LAW) POST-CONVICTION RELIEF (see CRIMINAL PRACTICE) PRE-EMPTION (see CONSTITUTIONAL LAW) PREPAYMENT PENALTIES (see REAL PROPERTY) PRISONERS (see TORTS) PRISONERS’ RIGHTS (see also CONSTITUTIONAL LAW) PRISONERS’ RIGHTS — Forced Medication Sell v. United States , No. 02-5664; U.S. Supreme Court; opinion by Breyer, J.; dissent by Scalia, J.; decided June 16, 2003. On certiorari to the U.S. Court of Appeals for the Eighth Circuit. The Constitution permits the government to administer antipsychotic drugs involuntarily to render a mentally ill defendant competent to stand trial on serious criminal charges if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the trial’s fairness, and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests. 172 N.J.L.J. 1175 PRIVILEGES AND IMMUNITIES CLAUSE (see CONSTITUTIONAL LAW) PROFESSIONAL CORPORATIONS (see CIVIL RIGHTS) PSYCHIATRIC EXAMINATIONS (see CIVIL PRACTICE) PUNITIVE DAMAGES (see CIVIL PRACTICE) QUARTERLY FEES (see BANKRUPTCY) REAL PROPERTY (see also BANKRUPTCY) REAL PROPERTY — Appraisals — Class Actions — Consumer Fraud — Mortgages Szczubelek et al v. Cendant Mortgage Corporation et al , 00-CV-2858; United States District Court (DNJ); opinion by Brotman, U.S.D.J.; filed March 31, 2003. In this action alleging that the mortgagor committed fraud by failing to disclose the practice of combining the actual cost of a property appraisal with the administrative costs associated with the appraisal and charging only one fee, individual proofs predominate over issues applicable to the class as a whole and, therefore, plaintiff’s motion for class certification must be denied under Fed. R. Civ. P. 23(b)(3); because genuine issues of material fact exists as to whether defendants’ actions violate the New Jersey Consumer Fraud Act, plaintiffs’ motion for partial summary judgment will also be denied. 172 N.J.L.J. 142 REAL PROPERTY — Defaults — Foreclosures — Interest Rates — Prepayment Penalties Norwest Bank of Minnesota et al v. Blair Road Associates, L.P. , No. 00-706; United States District Court (DNJ); opinion by Bassler, U.S.D.J.; filed March 21, 2003. In this mortgage-foreclosure action, the default rate of interest provided in the promissory note, which is tied to the greater of either the fixed rate of the interest under the note plus 3 percent or prime plus 4 percent, does not constitute an oppressive penalty, and defendants have presented no evidence to overcome the presumptive reasonableness of the agreed-on provision nor any evidence of fraud, duress or other unconscionable acts on the part of plaintiff; additionally, defendants have failed to show that the prepayment premium (which is in addition to the default interest) is anything other than a common practice in a competitive industry, or is outside commercially accepted rates; also, although the note does not specifically address the calculation of the prepayment when the property is sold at a foreclosure sale, postponing the prepayment premium until the actual date of the sale would defeat the purpose of the judgment by making it impossible to declare a sum certain immediately due and to commit the proceeds of the sale of specific property to its satisfaction and, therefore, the prepayment premium must be calculated at the time of the judgment. 172 N.J.L.J. 72 RECLAMATION (see BANKRUPTCY) REDISTRICTING (see ELECTION LAW) RELIGION (see SCHOOLS AND EDUCATION) REMOVAL (see IMMIGRATION LAW) RESCISSION (see BANKRUPTCY) RETALIATION (see EMPLOYMENT LAW) REVOLVING LINES OF CREDIT (see BANKRUPTCY) RICO (see CIVIL PRACTICE) RIGHT OF CONSULAR NOTIFICATION (see TORTS) RIGHT TO COUNSEL (see IMMIGRATION LAW) RIGHT TO KNOW (see FAMILY LAW) RIPENESS (see ADMINISTRATIVE LAW) SCHOOLS and EDUCATION — Disabilities — Religion L.M. v. Evesham Township Board of Education , No. 02-05222; United States District Court (DNJ); opinion by Wolfson, U.S.D.J.; filed March 2003. DDS No. 16-7-3608 Where the local school board has failed to provide a child with a free and appropriate public education, and the parents’ unilateral placement of the child in a private school is determined to be appropriate under the Individuals with Disabilities in Education Act, neither N.J.S.A. 18A:46-14 (the Naples Amendment) nor the establishment clause of the First Amendment prevent the school board from reimbursing the parents based on the sectarian nature of the school; even if the Supreme Court case of Florence County Schl. Dist. v. Carter did not preclude state law reimbursement of sectarian school tuition costs in unilateral parental placement cases, the statute’s prohibition of sectarian schools does not apply to placements other than those recommended by a child study team; the matter is remanded to the administrative law judge to determine whether the school board failed to provide the child a free and appropriate public education and, if so, whether his parents’ unilateral placement of him at a sectarian school was otherwise appropriate under the IDEA. 172 N.J.L.J. 490 SCHOOLS and EDUCATION — Disabilities — Valedictorians Hornstine v. Township of Moorestown et al , No. 03-1953; United States District Court (DNJ); opinion by Wolfson, U.S.D.J.; filed May 9, 2003. DDS No. 16-7-3881 Where plaintiff, a special-needs high school student allowed by the school board to take afternoon classes at home with board staff members, had the highest grade point average in her graduation class, she is entitled to an order directing defendants to follow the board’s current policy for determining the valedictorian, and her motion to enjoin the board from retroactively applying a proposed policy amendment to allow the designation of multiple valedictorians is granted; any retroactive application of the valedictorian amendment to plaintiff would constitute prohibited disability-based discrimination because it was specifically designed for the purpose of requiring plaintiff to share the valedictorian award solely because of the accommodations she rightfully received from the board. 172 N.J.L.J. 1295 SCHOOLS and EDUCATION — Immunity Camden County Recovery Coalition et al v. Camden City Board of Education for the Public School System et al , No. 03-1073; United States District Court (DNJ); opinion by Irenas, U.S.D.J.; filed May 19, 2003. A local school board subject to state oversight under New Jersey’s Municipal Rehabilitation and Economic Recovery Act is a state agency for Eleventh Amendment purposes and, therefore, enjoys immunity from suit in federal court; plaintiffs’ action against the Camden City Board of Education, individual members of the School Board, and the superintendent and director of plant services of the school district for violations of 42 U.S.C. § 1983, the federal Lead Contamination and Control Act and state law claims is dismissed. 172 N.J.L.J. 981 SECURITIES INVESTORS PROTECTION ACT (see BANKRUPTCY) SELF-INCRIMINATION (see CRIMINAL PRACTICE) SENTENCING (see CRIMINAL PRACTICE) SEXUAL HARASSMENT (see EMPLOYMENT LAW) SOCIAL SECURITY (see SOCIAL SERVICES LAW) SOCIAL SERVICES LAW — Criminal Practice — Insanity — Social Security Artz v. Barnhart , No. 02-3882; Third Circuit; opinion by Alito, U.S.C.J.; filed May 29, 2003. Before Judges Alito, Fuentes and Greenberg. On appeal from the District of New Jersey. [Sat below: Judge Irenas.] DDS No. 13-8-3864 Where plaintiff was found not guilty by reason of insanity (NGRI) and was confined at public expense, and after being conditionally released he was reconfined based on his failure to take his medication, his reconfinement was “in connection with” his prior NGRI verdict and, therefore, his disability benefits were properly suspended during the time of his reconfinement, in accordance with 42 U.S.C. § 402(x)(1)(A)(ii). 172 N.J.L.J. 1182 SOVEREIGN IMMUNITY (see CONSTITUTIONAL LAW, TORTS) SPENDING POWER (see CONSTITUTIONAL LAW) STANDING (see CIVIL RIGHTS) STATES’ IMMUNITY (see CONSTITUTIONAL LAW) TAKINGS (see CONSTITUTIONAL LAW) TAXATION (see CONSTITUTIONAL LAW) TAXES (see BUSINESS LAW) TITLE VII (see CIVIL RIGHTS) TORTS — Aliens — Prisoners — Right of Consular Notification Bieregu v. Ashcroft , No. 01-4948; United States District Court (DNJ); opinion by Debevoise, U.S.D.J. Because no common-law duty is imposed on private individuals to advise alien arrestees of their right of consular notification pursuant to Article 36 of the Vienna Convention of Consular Relations, and plaintiff cannot assert a tort claim based on the speculative damages alleged (denial of plaintiff’s Sixth Amendment right to counsel and the associated potential for a more favorable outcome in plaintiff’s criminal trial), plaintiff’s claim under the Alien Tort Claims Act against defendants in their individual capacities must be dismissed. 172 N.J.L.J. 573 TORTS — Evidence — Wrongful Death Rosario et al v. City of Union City Police Department et al , No. 00-3702; United States District Court (DNJ); opinion by Walls, U.S.D.J.; filed May 27, 2003. Where the jury awarded $3 million to plaintiffs on their wrongful-death claim, defendants’ motion for a judgment notwithstanding the verdict is granted; by failing to provide any evidence about decedent’s life expectancy, the kinds of advice and counsel provided by decedent, or the cost of comparable advice purchasable on the market, plaintiffs have failed to prove the pecuniary value of any lost advice, counsel and guidance, as required under New Jersey’s Wrongful Death Statute. 172 N.J.L.J. 1298 TORTS — Federal Employees — Immunity Borawski v. Henderson et al , No. 01-2215; United States District Court (DNJ); opinion by Cooper, U.S.D.J.; filed June 10, 2003. DDS No. 36-7-4022 Where plaintiff’s postal supervisor wrote an allegedly defamatory letter about him, in the absence of any specific facts disputing that her writing and dissemination of the letter was the kind of work she was employed to perform, that it occurred substantially within the authorized time and space limits, or was “actuated, at least in part, by a purpose to serve the master,” he has failed to rebut the government’s certification that the supervisor was acting within the scope of her employment; the supervisor is entitled to absolute immunity for negligent hiring and retention, defamation, slander per se, invasion of privacy, and intentional infliction of emotional distress. 172 N.J.L.J. 1292 TORTS — Sovereign Immunity Dole Food Co. v. Patrickson , No. 01-593; U.S. Supreme Court; opinion by Kennedy, J.; partial dissent by Breyer, J.; decided April 22, 2003, together with No. 01-594, Dead Sea Bromine Co., Ltd. v. Patrickson, both on certiorari to the U.S. Court of Appeals for the Ninth Circuit. A foreign state must itself own a majority of a corporation’s shares if the corporation is to be deemed an instrumentality of the state under the Foreign Sovereign Immunities Act. 172 N.J.L.J. 320 TRADEMARKS (see ATTORNEYS’ FEES) TREBLE DAMAGES (see CIVIL PRACTICE) UCC (see BANKRUPTCY) UNFAIR COMPETITION (see BUSINESS LAW) USURY (see CIVIL PRACTICE) VALEDICTORIANS (see SCHOOLS and EDUCATION) VALUATIONS (see BANKRUPTCY) WORKERS’ COMPENSATION — Longshoremen Maher Terminals, Inc. v. Office of Workers’ Compensation Programs , No. 01-3343; Third Circuit; opinion by Becker, U.S.C.J.; filed May 29, 2003. Before Judges Becker, Scirica and Shadur, District Judge, sitting by designation. On petition for review of the decision and order of the U.S. Department of Labor, Benefits Review Board. DDS No. 39-8-3865 Where claimant worked as a checker, which involves loading and unloading and is a position covered under the Longshore and Harbor Workers Compensation Act, and also worked as a delivery clerk, which is not covered under the Act, he is covered for his injury even though at the time he was working as a delivery clerk; because his job required him to spend at least some of his time in longshoring operations, he regularly engaged in covered maritime employment. 172 N.J.L.J. 1179 WRONGFUL DEATH (see TORTS)

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