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ADMINISTRATIVE LAW – Environmental Law – Judicial Review National Association of Home Builders et al. v. Defenders of Wildlife et al. , No. 06-340; U.S. Supreme Court; opinion by Alito, J.; dissents by Stevens and Breyer, JJ.; decided June 25, 2007. On certiorari to the U.S. Court of Appeals for the Ninth Circuit. No. 06-549, Environmental Protection Agency v. Defenders of Wildlife et al., also decided today. The Endangered Species Act’s duty imposed on federal agencies – to ensure that a proposed action is unlikely to jeopardize an endangered or threatened species – covers only discretionary agency actions, not actions the agency is required by statute to undertake once certain specified triggering events have occurred. 189 N.J.L.J. 69 ADMIRALTY – Releases Trainor v. Atlantic Cape Fisheries Inc. et al , Civ. No. 05-2479; U.S. District Court (DNJ); opinion by Irenas, U.S.D.J.; filed June 28, 2007. DDS No. 54-7-7905 [12 pp.] Because the court is unable to determine whether plaintiff received adequate medical advice or adequate legal advice, or executed the release freely, summary judgment is denied. 189 N.J.L.J. 626 ANTICYBERSQUATTING CONSUMER PROTECTION ACT (see INTELLECTUAL PROPERTY) ANTITRUST (see also BUSINESS LAW, COMMERCIAL LAW) ANTITRUST – Price Fixing Leegin Creative Leather Products Inc. v. PSKS Inc., d/b/a Kay’s Kloset U Kay’s Shoes , No. 06-480; U.S. Supreme Court; opinion by Kennedy, J.; dissent by Breyer, J.; decided June 28, 2007. On certiorari to the U.S. Court of Appeals for the Fifth Circuit. Vertical price restraints are no longer per se illegal but will be judged by the rule of reason. 189 N.J.L.J. 143 ASYLUM (see IMMIGRATION LAW) ATTORNEYS’ FEES – ERISA United Automobile Workers Local 259 Social Security Department v. Metro Auto Center , No. 05-4974; Third Circuit; opinion by Chagares, U.S.C.J.; filed September 4, 2007. Before Judges Sloviter, Chagares and Greenberg. On appeal from the District of New Jersey. [Sat below: Judge Greenaway.] DDS No. 56-8-8395 [22 pp.] A trial court must award interest under 29 U.S.C. � 1132(g)(2)(B) on an employer’s delinquent contributions that were unpaid at the time a suit was filed but paid by the time of judgment; also, proportionality does not necessarily limit mandatory fee awards in the ERISA context. 189 N.J.L.J. 985 BANK FRAUD (see CRIMINAL PRACTICE) BANKING – Consumer Fraud Act – Certificates of Deposit – Class Action Fairness Act – Jurisdiction Hirschbach v. NVE Bank et al , Civil Action No. 06-6183; U.S. District Court (DNJ); opinion by Chesler, U.S.D.J.; decided July 24, 2007. DDS No. 06-7-8275 [20 pp.] The court does not have subject-matter jurisdiction in this class-action suit alleging violation of New Jersey’s Consumer Fraud Act in the advertising of certificates of deposit. 189 N.J.L.J. 624 BANKRUPTCY In re Fox, No. 06-12410; U.S. Bankruptcy Court (DNJ); opinion by Burns, U.S.B.J.; filed June 1, 2007. DDS No. 42-6-7564 [17 pp.] The debtor, having converted her case from one under Chapter 13 to one under Chapter 7, is not subject to the means test under the plain language of � 707(b)(1). 189 N.J.L.J. 624 In re Suber, No. 06-20369; U.S. Bankruptcy Court (DNJ); opinion by Winfield, U.S.B.J.; filed August 13, 2007. DDS No. 42-6-8252 [6 pp.] If a debtor seeks to reopen her case in order to file reaffirmation agreements that she has made post-discharge, she must provide facts describing the circumstances giving rise to the agreement. 189 N.J.L.J. 698 BANKRUPTCY – Consent Orders – Disciplinary Sanctions – Inherent Power In re Rivera, Case No. 01-42625; U.S. Bankruptcy Court; opinion by Stern, U.S.B.J.; decided May 31, 2007. DDS No. 42-6-7621 [22 pp.] The draft consent order submitted by the trustee and one party in the disciplinary proceeding initiated in a bankruptcy proceeding is entered; the issues of the court’s inherent powers and the use of nonmonetary injunctive sanctions remains unreviewed. 189 N.J.L.J. 625 BANKRUPTCY – Construction Liens In re Kara Homes Inc. et al , Chapter 11 Case No. 06-19626; U.S. Bankruptcy Court (DNJ); opinion by Kaplan, U.S.B.J.; filed August 29, 2007. DDS No. 42-6-8398 [22 pp.] Subcontractor agreements for a real estate development project are “residential construction contracts” requiring any lien claimant to comply with the appropriate provisions of the New Jersey Lien Law, and only those claimants awarded a valid lien by an arbitrator prior to the bankruptcy petition dates can be said to have a valid and enforceable prepetition lien. 189 N.J.L.J. 1062 BANKRUPTCY – Dischargeability In re Cooper; Calascibetta v. Cooper, Bankruptcy Case No. 06-18733; Adversary No. 06-3064; U.S. Bankruptcy Court (DNJ); opinion by Ferguson, U.S.B.J.; decided June 26, 2007. DDS No. 42-6-7820 [6 pp.] Title 11 U.S.C. � 523(a)(2), which provides that the Bankruptcy Code does not discharge a debtor from a debt for money or property if obtained by fraud, implicitly requires that the fraud was perpetrated by the debtor. 189 N.J.L.J. 624 BANKRUPTCY – Fifth Amendment – Torts In re Tulloch , Case No. 05-52915 (MS); U.S. Bankruptcy Court (DNJ); opinion by Stern, U.S.B.J.; filed August 28, 2007. DDS No. 42-6-8361 [35 pp.] Where the debtor chooses to remain silent at the state civil trial against him based on a hit-and-run accident, his debt may not be avoided. 189 N.J.L.J. 986 BANKRUPTCY – Mortgage Foreclosures – Right to Cure Defaults In re Connors, No. 06-3321; Third Circuit; opinion by Barry, U.S.C.J.; decided August 3, 2007. Before Judges Barry, Fuentes and Jordan. On appeal from the District of New Jersey. [Sat below: Judge Cavanaugh.] DDS No. 42-8-8184 [13 pp.] Under 11 U.S.C. � 1322(c)(1), a Chapter 13 debtor does not have the right to cure a default on a mortgage secured by his principal residence between the foreclosure sale and delivery of the deed. 189 N.J.L.J. 698 BANKRUPTCY – Motions to Reject – Termination Motions In re Nickels Midway Pier, L.L.C. v. Wild Waves, L.L.C. , No. 06-5230, Bankruptcy No. 03-49462; U.S. District Court (DNJ); opinion by Irenas, S.U.S.D.J.; decided August 2, 2007. [20 pp.] When deciding if mandatory abstention applies, the termination motion and the motion to reject should be considered separately. 189 N.J.L.J. 767 BIVENS ACTIONS (see CONSTITUTIONAL LAW) BREACH OF CONTRACT (see BUSINESS LAW) BUSINESS LAW – Antitrust – Unfair Competition Cosmetic Gallery Inc. v. Schoeneman Corp. , No. 05-3679; Third Circuit; opinion by Scirica, U.S.C.J.; filed July 19, 2007. Before Judges Scirica, Fuentes and Alarc�n, Circuit Judge, sitting by designation. On appeal from the District of New Jersey, D.C. Civil Action No. 01-cv-4896. [Sat below: Judge Kugler.] [20 pp.] Plaintiff’s circumstantial evidence falls short of excluding the possibility that the defendant-distributors, who sold exclusive, salon-only hair products, acted independently in refusing to sell to plaintiff. 189 N.J.L.J. 450 BUSINESS LAW – Breach of Contract – Securities Fraud Ross v. Celtron International Inc. et al , No. 05-1300; U.S. District Court (DNJ); opinion by Cooper, U.S.D.J.; decided June 25 2007. DDS No. 11-7-7821 [37 pp.] In this action arising out of an alleged contractual promise to issue stock, the court considers defendants’ motion for summary judgment on the claims of, inter alia, breach of contract, securities fraud, promissory estoppel, and violation of New Jersey’s RICO statute. 189 N.J.L.J. 767 BUSINESS LAW – Demand Futility – Shareholders’ Derivative Suits In re SFBC International Inc., No. 06-165; U.S. District Court (DNJ); opinion by Chesler, U.S.D.J.; decided July 25, 2007. DDS No. 12-7-8268 [19 pp.] In this shareholder derivative suit, plaintiffs’ allegations of severe and endemic mismanagement raise reasonable doubt as to the directors’ disinterest and satisfy the heightened pleading standard for demand futility. 189 N.J.L.J. 697 BUSINESS LAW – Futility – Shareholders Suits In re Merck & Co. Inc., No. 06-2911; Third Circuit; opinion by Smith, U.S.C.J.; decided July 18, 2007. Before Judges Smith, Cowen and Yohn, District Judge, sitting by designation. On appeal from the District of New Jersey. [Sat below: Judge Chesler.] [24 pp.] The District Court erred in denying plaintiffs leave to amend the demand futility allegations in their complaint with material acquired as a result of the parties’ consensual discovery agreement. 189 N.J.L.J. 450 BUSINESS LAW – Limitations of Actions – Mergers – Securities Fraud In re Exxon Mobil Corp. Securities Litigation , No. 05-4571; Third Circuit; opinion by Ambro, U.S.C.J.; decided August 27, 2007. Before Judges McKee, Ambro and Fisher. On appeal from the District of New Jersey. [Sat below: Judge Wolfson.] DDS No. 12-8-8343 [32 pp.] Sarbanes-Oxley’s extension of the limitations periods for the statute of limitations and the statute of repose does not apply to save plaintiffs’ �� 14(a) and 10(b) claims under the Securities Exchange Act. 189 N.J.L.J. 984 BUSINESS LAW – Loss Causation – Securities Fraud McCabe v. Ernst & Young, L.L.P., et al, No. 06-1318; Third Circuit; opinion by Scirica, U.S.C.J.; filed July 23, 2007. Before Judges Scirica, Fuentes and Chagares. On appeal from the District of New Jersey. [Sat below: Judge Walls.] [49 pp.] In this securities fraud action, plaintiffs did not present sufficient evidence of loss causation to survive defendant’s summary judgment motion. 189 N.J.L.J. 985 BUSINESS LAW – Securities DeBenedictis v. Merrill Lynch & Co. Inc., No. 06-1867; Third Circuit; opinion by Alarc�n, U.S.C.J.; filed June 18, 2007. Before Judges Scirica, Fuentes and Alarc�n, Circuit Judge, sitting by designation. On appeal from the District of New Jersey. [Sat below: Judge Linares.] DDS No. 50-8-7823 [27 pp.] The information provided in the registration statements, news articles, and the NASD press releases was sufficient to find that a reasonable investor would have discovered the basis of these securities claims prior to the expiration of the statute of limitations. 189 N.J.L.J. 75 CAMPAIGN FINANCE (see CONSTITUTIONAL LAW) CELL PHONES (see COMMERCIAL LAW) CERTIFICATES OF DEPOSIT (see BANKING) CHILD PORNOGRAPHY (see CRIMINAL PRACTICE) CIVIL PRACTICE – Discovery – Nontestifying Experts Plymovent Corp. v. Air Technology Solutions, Inc. , Civil No. 05-351; U.S. District Court (DNJ); opinion by Irenas, U.S.D.J.; decided August 2, 2007. [18 pp.] The subpoena duces tecum seeking disclosure of materials of a nontestifying expert is quashed since there was no waiver of the protection of Rule 26(b)(4)(B) and no showing of exceptional circumstances. 189 N.J.L.J. 625 CIVIL PRACTICE – Rule 11 Sanctions Oswell v. Morgan Stanley Dean Witter & Co., Inc. et al, etc. , Civil Nos. 06-5814, 07-105; U.S. District Court (DNJ); opinion by Simandle, U.S.D.J.; filed September 6, 2007. DDS No. 19-7-8417 [21 pp.] The parties’ motions for Rule 11 sanctions are denied since, where the claims have not been adjudicated on the merits, it cannot be said that they are unreasonable or that the cross-motion for sanctions is frivolous. 189 N.J.L.J. 1061 CIVIL RIGHTS – Immunity Curley v. Klem , No. 05-4701; Third Circuit; opinion by Jordan, U.S.C.J.; dissent by Roth, U.S.C.J.; filed August 24, 2007. Before Judges Fisher, Jordan and Roth. On appeal from the District of New Jersey. [Sat below: Judge Hayden.] DDS No. 46-8-8320 [65 pp.] Since the jury properly determined that defendant-officer made an objectively reasonable mistake when he shot plaintiff, another officer, it found that there was no constitutional violation, and the District Court did not err in entering a verdict in favor of defendant. 189 N.J.L.J. 1194 CLASS ACTION FAIRNESS ACT (see BANKING) COERCIVE POPULATION CONTROL (see IMMIGRATION LAW) COMMERCIAL LAW – Antitrust – Cell Phones – Intellectual Property Broadcom Corp. v. Qualcomm Inc. , No. 06-4292; Third Circuit; opinion by Barry, U.S.C.J.; filed September 4, 2007. Before Judges Barry, Fuentes and Garth. On appeal from the District of New Jersey. [Sat below: Judge Cooper.] DDS No. 53-8-8394 [39 pp.] A patent holder’s deceptive conduct before a private standards-determining organization may be condemned under antitrust laws. 189 N.J.L.J. 1060 CONSENT ORDERS (see BANKRUPTCY) CONSTITUTIONAL LAW – Bivens Actions Wilkie et al. v. Robbins , No. 06-219; U.S. Supreme Court; opinion by Souter, J.; concurrence by Thomas, J.; partial dissent by Ginsburg, J.; decided June 25, 2007. On certiorari to the U.S. Court of Appeals for the 10th Circuit. Landowner claiming campaign of harassment and intimidation by the Bureau of Land Management to force him to regrant a lost easement has no Bivens cause of action. 189 N.J.L.J. 73 CONSTITUTIONAL LAW – Campaign Finance – Free Speech Federal Election Commission v. Wisconsin Right to Life, Inc., No. 06-969; U.S. Supreme Court; opinion by Roberts, C.J.; concurrence by Alito, J., partial concurrence by Scalia, J.; dissent by Souter, J.; decided June 25, 2007. On appeal from the U.S. District Court for the District of Columbia. Together with No. 06-970, McCain, United States Senator, et al. v. Wisconsin Right to Life, Inc., also on appeal from the same court. Bipartisan Campaign Reform Act, making it a federal crime for a corporation to use its general treasury funds to pay for any “electioneering communication,” is unconstitutional as to advertisements inviting voters to urge senators to oppose a filibuster. 189 N.J.L.J. 68 CONSTITUTIONAL LAW – Due Process – Free Speech Tennessee Secondary School Athletic Association v. Brentwood Academy , No. 06-427; U.S. Supreme Court; opinion by Stevens, J.; partial concurrence by Kennedy, J.; concurrence by Thomas, J.; decided June 21, 2007. On certiorari to the U.S. Court of Appeals for the Sixth Circuit. Enforcing a rule that prohibits high school coaches from recruiting middle school athletes does not violate free speech or due process rights. 189 N.J.L.J. 72 CONSTITUTIONAL LAW – Eighth Amendment – Insanity Panetti v. Quarterman, Director, Texas Department of Criminal Justice, Correctional Institutions Division , No. 06-6407; U.S. Supreme Court; opinion by Kennedy, J.; dissent by Thomas, J.; decided June 28, 2007. On certiorari to the U.S. Court of Appeals for the Fifth Circuit. The Fifth Circuit’s mental incompetency test ignores the possibility that even if the defendant is aware that the state has identified a link between his crime and the punishment to be inflicted, gross delusions stemming from a severe mental disorder may put that awareness in a context so far removed from reality that the punishment can serve no proper purpose. 189 N.J.L.J. 142 CONSTITUTIONAL LAW – Equal Protection – Schools Parents Involved in Community Schools v. Seattle School District No. 1 et al. , No. 05-908; U.S. Supreme Court; opinion by Roberts, C.J.; concurrence by Thomas, J.; partial concurrence by Kennedy, J.; dissents by Stevens and Breyer, JJ.; decided June 28, 2007. On certiorari to the U.S. Court of Appeals for the Ninth Circuit. Together with No. 05-915, Meredith, Custodial Parent and Next Friend of McDonald v. Jefferson County Bd. of Ed et al., on certiorari to the U.S. Court of Appeals for the Sixth Circuit. The school districts have not carried their heavy burden of showing that the interest they seek to achieve justifies the extreme means they have chosen – discriminating among individual students based on race by relying on racial classifications in making school assignments. 189 N.J.L.J. 143 CONSTITUTIONAL LAW – Establishment Clause – Standing to Sue Hein, Director, White House Office of Faith-Based and Community Initiatives, et al. v. Freedom From Religion Foundation, Inc., et al ., No. 06-157; U.S. Supreme Court; opinion by Alito, J.; concurrences by Kennedy and Scalia, JJ.; dissent by Souter, J.; decided June 25, 2007. On certiorari to the U.S. Court of Appeals for the Seventh Circuit. 189 N.J.L.J. 74 CONSTITUTIONAL LAW – Free Speech – Schools Morse et al. v. Frederick , No. 06-278; U.S. Supreme Court; opinion by Roberts, C.J.; concurrences by Thomas and Alito, JJ.; partial dissent by Breyer, J.; dissent by Stevens, J.; decided June 25, 2007. On certiorari to the U.S. Court of Appeals for the Ninth Circuit. School officials did not violate the First Amendment by confiscating a pro-drug banner and suspending a student who displayed it. 189 N.J.L.J. 70 CONSTRUCTION LIENS (see BANKRUPTCY) CONSUMER FRAUD (see CONTRACTS) CONSUMER FRAUD ACT (see BANKING) CONTRACTS – Consumer Fraud – Warranties Viking Yacht Co. v. Composites One, L.L.C. , Civ. No. 05-538; U.S. District Court (DNJ); opinion by Irenas, U.S.D.J.; filed July 26, 2007. [29 pp.] Having held that defendant’s representations in its literature created an express warranty that was not disclaimed, it cannot be decided as a matter of law whether this warranty was breached; plaintiff, who used the product in reselling boats, was a consumer under the NJCFA. 189 N.J.L.J. 626 CONTRACTS – Warranties New Jersey Transit Corp. v. Harsco Corp. et al , No. 06-3507; Third Circuit; opinion by Garth, U.S.C.J.; filed August 7, 2007. Before Judges Barry, Fuentes and Garth. On appeal from the District of New Jersey, D.C. No. 03-cv-2724. [Sat below: Judge Hayden.] DDS No. 11-8-8194 [14 pp.] To the extent the implied warranty of merchantability conflicts with the contract’s specifications, it is displaced by the express warranty. 189 N.J.L.J. 699 CONVENTION AGAINST TORTURE (see IMMIGRATION LAW) CREDITORS’ and DEBTORS’ RIGHTS – Fair Debt Collection Practices Act – Federal Trade Commission Act Federal Trade Commission v. Check Investors, Inc. et al, etc. , Nos. 05-3558/3957; Third Circuit; opinion by McKee, U.S.C.J.; decided September 6, 2007. Before Judges McKee, Ambro and Nygaard. On appeal from the District of New Jersey. [Sat below: Judge Bissell.] DDS No. 15-8-8416 [51 pp.] The District Court properly found that appellants’ debt collection practices regarding checks written on accounts with insufficient funds violated the FTC Act and the FDCPA. 189 N.J.L.J. 1193 CRIMINAL PRACTICE – Bank Fraud – Evidence – Money Laundering – Sentencing United States v. Greenidge, etc., Nos. 05-4887, 05-5083, 06-2506; Third Circuit; opinion by Garth, U.S.C.J.; decided July 17, 2007. Before Judges Barry, Fuentes and Garth. On appeal from the District of New Jersey. [Sat below: Judge Greenaway.] DDS No. 42-8-8277 [27 pp.] Where there was no improper variance between the indictment and the evidence, appellants’ convictions for conspiracy to commit bank fraud and money laundering are affirmed. 189 N.J.L.J. 766 CRIMINAL PRACTICE – Child Pornography – Sentencing United States v. Goff , No. 05-5524; Third Circuit; opinion by Jordan, U.S.C.J.; filed August 30, 2007. Before Judges Fisher, Jordan and Roth. On appeal from the District of New Jersey. [Sat below: Judge Thompson.] DDS No. 14-8-8369 [29 pp.] The District Court’s four-month sentence for possessing hundreds of electronic images of child pornography was not reasonable in light of the circumstances of the case, the advisory sentencing guidelines and the remaining factors set forth in 18 U.S.C. � 3352(a). 189 N.J.L.J. 986 CRIMINAL PRACTICE – Search and Seizure United States v. Crandell , Criminal Action No. 06-232; U.S. District Court (DNJ); opinion by Greenaway, U.S.D.J.; filed September 7, 2007. DDS No. 14-7-8419 [29 pp.] An anonymous tip that “a black male with dreadlocks and blonde tips, wearing a tan shirt and blue jeans” was carrying a gun in the small of his back is, without any corroboration, insufficient to justify a police officer’s stop and frisk. 189 N.J.L.J. 1061 CRIMINAL PRACTICE – Sentencing Rita v. United States, No. 06-5754; U.S. Supreme Court; opinion by Breyer, J.; concurrence by Stevens, J.; partial concurrence by Scalia, J.; dissent by Souter, J.; decided June 21, 2007. On certiorari to the U.S. Court of Appeals for the Fourth Circuit. A court of appeals may apply a presumption of reasonableness to a district court sentence within the federal sentencing guidelines. 189 N.J.L.J. 71 United States v. Hankerson, No. 06-3291; Third Circuit; opinion by Garth, U.S.C.J.; decided July 31, 2007. Before Judges Barry, Fuentes and Garth. On appeal from the District of New Jersey. [Sat below: Judge Linares.] DDS No. 14-8-8142 [14 pp.] Defendant’s sentence of 121 months’ imprisonment is affirmed, as it is not unreasonable, nor was there ineffective assistance of counsel at sentencing. 189 N.J.L.J. 627 DEMAND FUTILITY (see BUSINESS LAW) DISCHARGEABILITY (see BANKRUPTCY) DISCIPLINARY SANCTIONS (see BANKRUPTCY) DISCOVERY (see CIVIL PRACTICE) DUE PROCESS (see CONSTITUTIONAL LAW) EIGHTH AMENDMENT (see CONSTITUTIONAL LAW) EMPLOYMENT – ERISA – Insurance – Jurisdiction Metropolitan Life Ins. Co. v. Price , No. 05-2927; Third Circuit; opinion by Chagares, U.S.C.J.; filed September 4, 2007. Before Judges Scirica, Fuentes and Chagares. On appeal from the District of New Jersey. [Sat below: Judge Hochberg.] DDS No. 23-8-8381 [18 pp.] The District Court erred in finding that it did not have subject-matter jurisdiction over this interpleader action brought by the ERISA plan administrator to determine which of the competing claimants is entitled to the decedent’s life insurance. 189 N.J.L.J. 984 EMPLOYMENT – ERISA – Retirement Graden v. Conexant Systems Inc. et al, No. 06-2337; Third Circuit; opinion by Ambro, U.S.C.J.; filed July 31, 2007 Before Judges McKee, Ambro and Michel, Circuit Judge, sitting by designation. On appeal from the District of New Jersey. [Sat below: Judge Chesler.] DDS No. 56-8-8141 [26 pp.] If a plaintiff colorably claims that under the plan and ERISA he was entitled to more than he received on the day he cashed out, a cashed-out former employee has the right to sue the administrator of his former employer’s 401(k) plan for allegedly mismanaging plan assets and thus reducing his share of benefits. 189 N.J.L.J. 628 EMPLOYMENT – National Origin Discrimination Vanartsdalen v. Township of Evesham et al , Civil No. 05-1508; U.S. District Court (DNJ); opinion by Irenas, U.S.D.J.; decided August 2, 2007. [13 pp.] Plaintiff’s federal claims of discrimination based on national origin are dismissed since she has not shown that she was constructively discharged and, hence, has not established a prima facie case of discrimination. 189 N.J.L.J. 626 ENVIRONMENTAL LAW (see also ADMINISTRATIVE LAW) ENVIRONMENTAL LAW – Railroads – Solid Waste New York Susquehanna and Western Railway Corporation v. Jackson , No. 07-1675; Third Circuit; opinion by Ambro, U.S.C.J.; filed September 4, 2007. Before Judges Ambro, Hardiman and Shapiro, District Judge, sitting by designation. On appeal from the District of New Jersey. [Sat below: Judge Hayden.] DDS No. 17-8-8380 [47 pp.] The Interstate Commerce Commission Termination Act does not pre-empt state regulation if it is nondiscriminatory and not unreasonably burdensome. 189 N.J.L.J. 1060 EQUAL PROTECTION (see CONSTITUTIONAL LAW) ERISA (see ATTORNEYS’ FEES, EMPLOYMENT) ESTABLISHMENT CLAUSE (see CONSTITUTIONAL LAW) EVIDENCE (see CRIMINAL PRACTICE) FAIR DEBT COLLECTION PRACTICES ACT (see CREDITORS’ and DEBTORS’ RIGHTS) FEDERAL TRADE COMMISSION ACT (see CREDITORS’ and DEBTORS’ RIGHTS) FIFTH AMENDMENT (see BANKRUPTCY) FREE SPEECH (see CONSTITUTIONAL LAW) FUTILITY (see BUSINESS LAW) GOVERNMENT – Political Patronage Discrimination – Public Employees Galli v. New Jersey Meadowlands Commission et al , No. 05-4114; Third Circuit; opinion by Ambro, U.S.C.J.; dissent by Baylson, U.S.D.J.; decided June 20, 2007. Before Judges Rendell, Ambro and Baylson, District Judge, sitting by designation. On appeal from the District of New Jersey. [Sat below: Judge Greenaway.] DDS No. 33-8-7723 [67 pp.] First Amendment rights to freedom of speech and association protect government employees who lack a political affiliation from political patronage discrimination. 189 N.J.L.J. 1194 GOVERNMENT – Qui Tam Actions United States of America, ex Rel; Hefner v. Hackensack University Medical Center, No. 06-2287; Third Circuit; opinion by Cowen, U.S.C.J.; filed July 17, 2007. Before Judges Smith, Cowen and Siler, Circuit Judge, sitting by designation. On appeal from the District of New Jersey. [Sat below: Judge Cavanaugh.] [15 pp.] A relator is not entitled to a share in the proceeds of an alternate remedy when the relator’s qui tam action under 31 U.S.C. � 3729 is invalid. 189 N.J.L.J. 627 IMMIGRATION LAW – Asylum – Coercive Population Control – Spousal Qualification Chen v. Attorney General of the United States , No. 05-4011; Third Circuit; opinion by Aldisert, U.S.C.J.; partial dissent by McKee, U.S.C.J.; decided June 20, 2007. Petition for review of an order of the Board of Immigration Appeals. Before Judges McKee, Aldisert and Restani, U.S. International Trade Judge, sitting by designation. [41 pp.] A husband may qualify for asylum on the well-founded fear that his wife may be persecuted under a coercive population control policy. 189 N.J.L.J. 765 IMMIGRATION LAW – Asylum – Convention Against Torture – Removal Valdiviezo-Galdamez v. Attorney General of the United States , No. 06-2080; Third Circuit; opinion by Rendell, U.S.C.J.; decided September 7, 2007. Before Judges Rendell, Ambro and Shapiro, District Judge, sitting by designation. Petition for review of an order of the Board of Immigration Appeals. DDS No. 51-8-8429 [19 pp.] The denial of these petitions for asylum, withholding of removal and relief under the CAT are vacated because the IJ ignored relevant evidence and in light of a new definition of “acquiescence” to torture. 189 N.J.L.J. 1193 IMMIGRATION LAW – Jurisdiction – Naturalization Omar v. Mueller, No. 07-813; U.S. District Court (DNJ); opinion by Chesler, U.S.D.J.; decided August 14 2007. DDS No. 51-7-8253 [10 pp.] Plaintiff’s suit seeking a writ of mandamus requiring the USCIS to issue a decision on his application for naturalization is dismissed for lack of subject-matter jurisdiction. 189 N.J.L.J. 696 IMMUNITY (see CIVIL RIGHTS) INDEMNIFICATION (see TORTS) INHERENT POWER (see BANKRUPTCY) INSANITY (see CONSTITUTIONAL LAW) INSURANCE (see EMPLOYMENT) INTELLECTUAL PROPERTY (see also COMMERCIAL LAW) INTELLECTUAL PROPERTY – Anticybersquatting Consumer Protection Act – Preliminary Injunctions – Trademark Infringement Vista India v. Raaga, L.L.C. , No. 07-1262; U.S. District Court (DNJ); opinion by Ackerman, S.U.S.D.J.; decided August 6, 2007. DDS No. 53-7-8197 [34 pp.] Plaintiff-store owner’s motion for a preliminary injunction in this trademark infringement/unfair competition action against a Web site’s owner is denied since plaintiff does not have a likelihood of success on the merits. 189 N.J.L.J. 768 INTERNATIONAL LAW – War Reparations Gross v. The German Foundation Industrial Initiative , Civ. No. 02-2936; U.S. District Court (DNJ); opinion by Debevoise, U.S.S.D.J.; filed August 15, 2007. DDS No. 07-7-8262 [128 pp.] The joint statement created to compensate victims of the Holocaust is a political document that does not confer on the signatories, or any portion of them, contractual rights which can be enforced in U.S. courts. 189 N.J.L.J. 1195 JUDICIAL REVIEW (see ADMINISTRATIVE LAW) JURISDICTION (see BANKING, EMPLOYMENT, IMMIGRATION LAW) LIMITATIONS OF ACTIONS (see BUSINESS LAW) LOSS CAUSATION (see BUSINESS LAW) MERGERS (see BUSINESS LAW) MONEY LAUNDERING (see CRIMINAL PRACTICE) MORTGAGE FORECLOSURES (see BANKRUPTCY) MOTIONS TO REJECT (see BANKRUPTCY) NATIONAL ORIGIN DISCRIMINATION (see EMPLOYMENT) NATURALIZATION (see IMMIGRATION LAW) NEGLIGENCE (see TORTS) NONTESTIFYING EXPERTS (see CIVIL PRACTICE) PLEADINGS (see SECURITIES FRAUD) POLITICAL PATRONAGE DISCRIMINATION (see GOVERNMENT) PRELIMINARY INJUNCTIONS (see INTELLECTUAL PROPERTY) PRICE FIXING (see ANTITRUST) PUBLIC EMPLOYEES (see GOVERNMENT) QUI TAM ACTIONS (see GOVERNMENT) RAILROADS (see ENVIRONMENTAL LAW) RELEASES (see ADMIRALTY) REMOVAL (see IMMIGRATION LAW) RETIREMENT (see EMPLOYMENT) RIGHT TO CURE DEFAULTS (see BANKRUPTCY) RULE 11 SANCTIONS (see CIVIL PRACTICE) SCHOOLS (see CONSTITUTIONAL LAW) SEARCH AND SEIZURE (see CRIMINAL PRACTICE) SECURITIES (see BUSINESS LAW) SECURITIES FRAUD (see also BUSINESS LAW) SECURITIES FRAUD – Pleadings Tellabs Inc. et al. v. Makor Issues & Rights, Ltd., et al. , No. 06-484; U.S. Supreme Court; opinion by Ginsburg, J.; concurrences by Scalia and Alito, JJ.; dissent by Stevens, J.; decided June 21, 2007. On certiorari to the U.S. Court of Appeals for the Seventh Circuit. To qualify as “strong” within the intendment of Private Securities Litigation Reform Act � 21D(b)(2), an inference of scienter must be more than merely plausible or reasonable – it must be cogent and at least as compelling as any opposing inference of nonfraudulent intent. 189 N.J.L.J. 71 SENTENCING (see CRIMINAL PRACTICE) SHAREHOLDERS’ DERIVATIVE SUITS (see BUSINESS LAW) SHAREHOLDERS SUITS (see BUSINESS LAW) SOLID WASTE (see ENVIRONMENTAL LAW) SPOUSAL QUALIFICATION (see IMMIGRATION LAW) STANDING TO SUE (see CONSTITUTIONAL LAW) SUBCONTRACTORS (see TORTS) TAXATION In re G-I Holdings Inc. et al , Civil No. 02-3082; U.S. District Court (DNJ); opinion by Chesler, U.S.D.J.; filed June 8, 2007. [18 pp.] A “fixed minimum value” of marketable securities is not the same as a “fixed value” for purposes of determining “binding contract” transitional relief from � 701(c) of the Internal Revenue Code. 189 N.J.L.J. 696 TERMINATION MOTIONS (see BANKRUPTCY) TORTS (see also BANKRUPTCY) TORTS – Indemnification – Negligence – Subcontractors – Vicarious Liability Bivens v. Taylor, Wiseman & Taylor et al , Civil No. 06-CV-2780; U.S. District Court (DNJ); opinion by Irenas, U.S.S.D.J.; decided September 5, 2007. DDS No. 31-7-8404 [18 pp.] In this negligence action filed by an injured subcontractor’s employee, various motions for summary judgment are denied because of genuine issues regarding the contractor’s liability, which contract governs the scope of work, and the applicability of certain insurance policy exclusions. 189 N.J.L.J. 1062 TRADEMARK INFRINGEMENT (see INTELLECTUAL PROPERTY) UNFAIR COMPETITION (see BUSINESS LAW) VICARIOUS LIABILITY (see TORTS) WAR REPARATIONS (see INTERNATIONAL LAW) WARRANTIES (see CONTRACTS)

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