Context: Even substantive rights based on foreign laws, however, have been given extraterritorial effect. Courts have also held that even a criminal statute may have extraterritorial effect.

"every sovereignty has the right, subject to certain restrictions, to protect itself from, and to punish as crimes, certain acts which are peculiarly injurious to its rights or interests, or those of its citizens, wherever committed"

See, e.g., Strassheim v. Daily, 221 U.S. 280, 284, 31 S. Ct. 558, 55 L. Ed. 735 (1910) (upholding prosecution in Michigan for acts of bribery and obtaining public money under false pretenses by defendant in Illinois, offenses by their nature peculiarly injurious to the state of Michigan); see also People v. Tyler, 7 Mich. 161, 221 (1859) (“every sovereignty has the right, subject to certain restrictions, to protect itself from, and to punish as crimes, certain acts which are peculiarly injurious to its rights or interests, or those of its citizens, wherever committed”).


Context: . Duncan argues that the district court erred in adopting the magistrate's credibility determinations because the court relied on impermissible factors in discrediting his testimony, including Duncan's self-interest and use of a translator at the suppression hearing. Even if the district court relied on impermissible factors, any error was harmless.

we accept a credibility determination "unless it is contrary to the laws of nature, or is so inconsistent or improbable on its face that no reasonable factfinder could accept it"

See United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir.2002) (we accept a credibility determination “unless it is contrary to the laws of nature, or is so inconsistent or improbable on its face that no reasonable factfinder could accept it”) (citation omitted).

United States v. Alexander, 835 F.2d 1406, 1411 (11th Cir. 1988) (applying harmless error review in the context of the denial of a motion to suppress). Internal inconsistencies existed in Duncan's testimony and nothing compelled a rejection of the magistrate's credibility determination, given that Duncan's testimony corroborated the officer’s testimony in material respects.


Context: At the August 2009 hearing, the IJ explained to Kohwarien the necessity of waiving all appellate rights to be eligible for pre-conclusion voluntary departure, which Kohwarien did without reservation. We do not require a specific incantation to evidence a valid waiver of appellate rights, but leave that matter to the immigration judge's discretion.

"Because the precise articulation of appeal rights required in any given case will necessarily depend on the circumstances of that case, we do not seek to alter any statement currently used by an Immigration Judge that satisfactorily communicates the right to appeal."

See Ali, 525 F.3d at 171 (“We reaffirm the IJ’s authority to notify an alien of his right to appeal and to seek a waiver of the right in any method that sufficiently safeguards the alien’s right.”); see also Rodriguez-Diaz, 22 I. & N. Dec. at 1323 (“Because the precise articulation of appeal rights required in any given case will necessarily depend on the circumstances of that case, we do not seek to alter any statement currently used by an Immigration Judge that satisfactorily communicates the right to appeal.”). The IJ’s colloquy here provides substantial evidence to support the BIA’s finding.

"We reaffirm the IJ's authority to notify an alien of his right to appeal and to seek a waiver of the right in any method that sufficiently safeguards the alien's right."


Context: Nonetheless, under the authority of Chambers v. Mississippi, I conclude that Fornes's statements to Cohen are admissible. As the Supreme Court held in Chambers, even if the evidence would otherwise be inadmissible under the state's rules of evidence, a defendant in a criminal case may nonetheless be entitled to introduce the evidence if its exclusion would render his trial fundamentally unfair.

See Chambers, 410 U.S. at 302-03, 93 S.Ct. 1038 (holding that exclusion of hearsay statements violated due process, even though statements were not admissible under Mississippi law, which did not recognize declarations against penal interest as a exception to the rule against hearsay); see also Priest v. Hennessy, 51 N.Y.2d 62, 431 N.Y.S.2d 511, 514, 409 N.E.2d 983 (1980) (“even where the technical requirements of the [attorney-client] privilege are satisfied, it may, nonetheless, yield in a proper case, where strong public policy requires disclosure”).

"even where the technical requirements of the [attorney-client] privilege are satisfied, it may, nonetheless, yield in a proper case, where strong public policy requires disclosure"


Context: Pleener submits that the district court erred when, in employing McDonnell Douglas analysis to her claim of discriminatory removal as principal, it concluded that Pleener had failed to adduce evidence that defendant's proffered nondiseriminatory reason for her removal was pretextual and that the real reason for her removal was racial bias. We disagree. While Pleener disputes the merits of the Board's view of (1) the deteriorating state of affairs at Beach Channel High School, (2) Pleener's role in that deterioration, and (3) her inability to provide the leadership necessary to restore stability, she failed to adduce any evidence that the Board did not sincerely hold that view or that otherwise would permit a factfinder to conclude that the Board's real reason for removing her was her race.

See Graham v. Long Island R.R., 230 F.3d 34, 44 (2d Cir.2000) (holding that even if plaintiff could demonstrate that failed drug test proffered by defendant as ground for dismissal was in error, that showing would not demonstrate that reliance on test was pretext for discrimination); Brewer v. Quaker State Oil Refining Corp., 12 F.3d 326, 331 (3d Cir.1995) (“To discredit the employer’s proffered reason, the plaintiff cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether a discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent.” (internal quotation marks omitted)); cf. Myers v. United Bhd. of Carpenters & Joiners of Am., 684 F.2d 225, 227 (2d Cir.1982) (“Even if the Brotherhood’s factfinding was mistaken, that circumstance would not establish discrimination in the absence of facts indicating that some identifiable group within the Local was erroneously being branded as ‘contracting members’ as a pretext for accomplishing a discriminatory denial of their right to vote.”).

"Even if the Brotherhood's factfinding was mistaken, that circumstance would not establish discrimination in the absence of facts indicating that some identifiable group within the Local was erroneously being branded as 'contracting members' as a pretext for accomplishing a discriminatory denial of their right to vote."


Context: The Court disagrees. The undisputed evidence demonstrates that the reasons for Anthoine's dismissal (e.g., unsatisfactory performance, insubordination, and discourteous treatment of the public or other employees) were not sufficiently serious to "stigmatize" or otherwise burden Anthoine such that he is unable to take advantage of other employment opportunities.

charges of "insubordination, incompetence, hostility toward authority, and aggressive behavior" are insufficiently stigmatizing to implicate a constitutional liberty interest

See Portman, 995 F.2d at 907 (“Charges that carry the stigma of moral turpitude such as dishonesty or immorality may implicate a liberty interest, but charges of incompetence or inability to get along with others do not.”) (internal quotation marks omitted); see also Gray v. Union County Intermediate Educ. Dist., 520 F.2d 803, 806 (9th Cir.1975) (charges of “insubordination, incompetence, hostility toward authority, and aggressive behavior” are insufficiently stigmatizing to implicate a constitutional liberty interest).

"Charges that carry the stigma of moral turpitude such as dishonesty or immorality may implicate a liberty interest, but charges of incompetence or inability to get along with others do not."


Context: Several circuits also hold that plaintiffs claiming that an executive officer's conduct, grouped under the term "sexual assault," violated the substantive Due Process Clause must show the officer's conduct shocked the conscience as part of their claims.

We agree. See Cummings v. Mclntire, 271 F.3d 341, 342-43, 344-45 (1st Cir.2001) (applying the conscience-shocking test when a plaintiff alleged an officer shoved him); see also Maldonado, 568 F.3d at 272-73 (opining though not holding that the conscience-shocking test likely applies to deprivations of property). In this case the jury was correctly instructed on the shocks-the-conscience element.


Context: Ms. Liles specifically testified that she was upset by the fact that her mother's organs had been incinerated and that they had been mixed with trash. In light of this evidence regarding the Hospital's conduct, we cannot say that the trial court erred in submitting this limited issue to the jury.

" 'If there are conflicts in the evidence or different reasonable inferences that may be drawn from the evidence, the issue is factual and should be submitted to the jury.'" (quoting Sims, 898 So.2d at 1005

See Hoy, 136 So.3d at 651 (“ ‘If there are conflicts in the evidence or different reasonable inferences that may be drawn from the evidence, the issue is factual and should be submitted to the jury.’” (quoting Sims, 898 So.2d at 1005)); Smith v. Telophase Nat’l Cremation Soc’y, Inc., 471 So.2d 163, 166 (Fla. 2d DCA 1985) (affirming denial of crematorium’s motion for directed verdict in case where jury found that crematorium committed tort of intentional infliction of emotional distress when it gave deceased’s widow another person’s ashes and scattered deceased’s ashes at sea against his wishes; “it [is] within the province of the jury to find that the facts, and the proper inferences from the facts, establish that [crematorium’s] conduct was extreme and outrageous”); see also Williams v. City of Minneola, 575 So.2d 683, 691 (Fla. 5th DCA 1991) (recognizing that “our society ... shows a particular solicitude for the emotional vulnerability of survivors regarding improper behavior toward” their dead loved one and that in such cases, “behavior which in other circumstances might be merely insulting, frivolous, or careless becomes indecent, outrageous[,] and intolerable”).

recognizing that "our society ... shows a particular solicitude for the emotional vulnerability of survivors regarding improper behavior toward" their dead loved one and that in such cases, "behavior which in other circumstances might be merely insulting, frivolous, or careless becomes indecent, outrageous[,] and intolerable"


Context: Under these circumstances, we can only conclude that a reasonable officer in Bomar's position would not have stopped Hernandez absent a desire to investigate his suspicions of illegal drug activity. We therefore hold that the stop was pretextual.

See United States v. Millan, 36 F.3d 886, 889 (9th Cir.1994) (concluding that traffic stop for driving with a cracked windshield was pretextual because state law did not prohibit driving with a cracked windshield and government did not establish any other legitimate reason for the stop); cf. United States v. Lillard, 929 F.2d 500, 502 (9th Cir.1991) (stop was not pretextual because even though officers suspected defendant of drug trafficking, they would have made the stop anyway because defendant was carelessly speeding in violation of state law).


Context: Article 37.07, section 3(a), entitled, "Evidence of Prior Criminal Record in all Criminal Cases After a Finding of Guilty," governs the admissibility of evidence at punishment in all non-capital cases.

"non-capital cases are governed by Article 37.07, which requires that extraneous offenses be proven beyond a reasonable doubt"

See Rogers v. State, 991 S.W.2d 263, 265 (Tex.Crim.App.1999) (“[i]n addition to the Rules of Evidence, Article 37.07 Section 3(a) governs the admissibility of evidence during the punishment stage”); see also Kutzner v. State, 994 S.W.2d 180, 188 (Tex.Crim.App.1999) (“non-capital cases are governed by Article 37.07, which requires that extraneous offenses be proven beyond a reasonable doubt”); Sonnier v. State, 913 S.W.2d 511, 521 n. 5 (Tex.Crim.App.1995) (noting that Article 37.07 “governs the punishment charge in non-capital trials”).

"[i]n addition to the Rules of Evidence, Article 37.07 Section 3(a


noting that Article 37.07 "governs the punishment charge in non-capital trials"


Context: However, our supreme court has announced that a presumption that a quotient verdict exists is to be drawn when the figures used by the jury in its computations give rise to "a fair inference" that the jury determined the amount of their verdict by use of a quotient process. In doing so, I conclude that the focus should not be on the numerical difference between the quotient and the verdict but, instead, should be centered on whether the evidence gives rise to the fair inference that the jury's verdict was induced by the use of the quotient process.

"The evil effects of a quotient verdict cannot be cured by agreeing thereafter to a slightly different verdict, if it appears that the agreement made in advance entered into or induced the result."

See Abercrombie, 184 Ala. at 259, 63 So. at 554 (“The evil effects of a quotient verdict cannot be cured by agreeing thereafter to a slightly different verdict, if it appears that the agreement made in advance entered into or induced the result.”); see also Benjamin v. Helena Light & Ry. Co., 79 Mont. 144, 255 P. 20, 24 (1927) (noting the lack of a “well-defined rule about what discrepancy is slight nor how much the discrepancy may be and the verdict still be invalid” and concluding that “[mjuch seems to rest on the basic facts that mathematical calculation was resorted to and led up to the fixing of the amount of the verdict, even though not the same as the quotient”).

noting the lack of a "well-defined rule about what discrepancy is slight nor how much the discrepancy may be and the verdict still be invalid" and concluding that "[mjuch seems to rest on the basic facts that mathematical calculation was resorted to and led up to the fixing of the amount of the verdict, even though not the same as the quotient"


Context: Nebraska ease law does not establish criteria to follow in determining whether substantial equity exists in a particular case. However, a review of Nebraska deci-sional law reveals that strict foreclosure has been allowed not only where there is no equity in property, but also where a purchaser has paid approximately 11% of the contract price.

But see Ruhl v. Johnson, 154 Neb. 810, 49 N.W.2d 687 (1951) (equity of $16,000.00 as compared to a purchase price of $38,000.00 is substantial equity).

See Swanson v. Madsen, 145 Neb. 815, 18 N.W.2d 217 (1945) (vendee has no equity where a debt of $38,000.00 is compared to the property valued at $24,-000.00); Morgan v. Zoucha, 203 Neb. at 122, 277 N.W.2d at 565-66 (equity of $1559.68 as compared to a purchase price of $13,500.00 is not substantial equity).


equity of $1559.68 as compared to a purchase price of $13,500.00 is not substantial equity


Context: Because this case presents a situation in which six agencies with overlapping expertise were explicitly tasked by Congress to jointly draft and adopt regulations as part of a coordinated endeavor, this Court declines to conclude that Chevron is not applicable simply because more than one agency was involved in the rulemaking. See Individual Reference Servs.

holding that "where multiple agencies are charged with administering a statute, a single agency's interpretation is generally not entitled to Chevron deference," but concluding that "there would be no comparable concern if all three agencies charged with administering the [statute in question] pressed the same interpretation before this Court"

Grp., Inc. v. FTC, 145 F.Supp.2d 6, 24 (D.D.C. 2001) (holding that where “the subject matter of the statute falls squarely within the agencies’ areas of expertise, and the Regulations were issued as a result of a statutorily-coordinated effort among the agencies, Chevron is the governing standard”), aff'd sub nom. Trans Union LLC v. FTC, 295 F.3d 42 (D.C. Cir. 2002); see also New Life Evangelistic Ctr., Inc. v. Sebelius, 753 F.Supp.2d 103, 122-23 (D.D.C. 2010) (holding that “where multiple agencies are charged with administering a statute, a single agency’s interpretation is generally not entitled to Chevron deference,” but concluding that “there would be no comparable concern if all three agencies charged with administering the [statute in question] pressed the same interpretation before this Court”).

holding that where "the subject matter of the statute falls squarely within the agencies' areas of expertise, and the Regulations were issued as a result of a statutorily-coordinated effort among the agencies, Chevron is the governing standard"


Context: He sent out boarding invoices for non-existent birds, collected the money, and spent it. He reassured customers that there were no problems, both by sending the boarding invoices and by addressing their complaints and concerns directly.

discussing the fraudulent nature of mails "designed to lull the victims into a false sense of security, postpone their ultimate complaint to the authorities, and therefore make the apprehension of the defendants less likely than if no mailings had taken place"

Compare United States v. Manarite, 44 F.3d 1407, 1412 (9th Cir.1995) (discussing use of mails for “lulling scheme,” in which “the mailing reassures the victim that all is well, discouraging him from investigating and uncovering the fraud”); cf. United States v. Maze, 414 U.S. 395, 403, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974) (discussing the fraudulent nature of mails “designed to lull the victims into a false sense of security, postpone their ultimate complaint to the authorities, and therefore make the apprehension of the defendants less likely than if no mailings had taken place”).

discussing use of mails for "lulling scheme," in which "the mailing reassures the victim that all is well, discouraging him from investigating and uncovering the fraud"


Context: Moreover, between the time of Jones and Powell's direct appeal, the Supreme Court's precedent has developed significantly in the field of state law affirmative defenses that fully satisfy the Winship baseline demand. This precedent on affirmative defenses provides ready support for concluding that the SJC's due process ruling in Powell's direct appeal is not objectively unreasonable.

holding that due process does not create "a constitutional imperative, operative countrywide, that a State must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of an accused."

See Patterson, 432 U.S. at 210, 97 S.Ct. 2319 (holding that due process does not create “a constitutional imperative, operative countrywide, that a State must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of an accused.”); see also Martin, 480 U.S. at 238-35, 107 S.Ct. 1098 (upholding state statute that placed on the accused the burdens of production and of persuasion beyond a reasonable doubt for self-defense as an affirmative defense).


Context: Dose asserts in his brief that his physical impairments substantially limit him in the major life activity of breathing. Defendant BVU does not contest, nor can it, that breathing is a major life activity.

"A person is 'disabled' under the Act if his or her physical or mental impairment substantially limits one or more life activities, including breathing and self-care."

See Amir v. St. Louis Univ., 184 F.3d 1017, 1027 (8th Cir.1999) (“Major life activities do include functions such as ‘caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.’”) (quoting 28 C.F.R. § 36.104); Land v. Baptist Med. Ctr., 164 F.3d 423, 424 (8th Cir.1999) (holding that breathing is a major life activity within the contemplation of the ADA); see also E.E.O.C. v. United Parcel Serv., Inc., 249 F.3d 557, 562 (6th Cir.2001) (“A person is ‘disabled’ under the Act if his or her physical or mental impairment substantially limits one or more life activities, including breathing and self-care.”), cert. denied, — U.S. -, 122 S.Ct. 1203, 152 L.Ed.2d 141 (2002); Doyal v. Oklahoma Heart, Inc., 213 F.3d 492, 495-96 (10th Cir.2000) (“Major life activities include such functions as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, sleeping, sitting, standing, lifting, reaching, and working.”); Homeyer v. Stanley Tulchin Assoc., Inc., 91 F.3d 959, 961 (7th Cir.1996) (holding that plaintiffs claim that she was “disabled” because her major life activity of breathing was substantially limited by her respiratory condition would provide a basis for protection under the ADA).


"Major life activities include such functions as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, sleeping, sitting, standing, lifting, reaching, and working."


holding that plaintiffs claim that she was "disabled" because her major life activity of breathing was substantially limited by her respiratory condition would provide a basis for protection under the ADA


Context: Accordingly, this Court agrees with other district courts that have recently reviewed this issue and concludes that there is no rational connection between Defendants' assertion and the legitimate interest of successful childrearing. To the contrary, this Court finds that far from encouraging a stable environment for childrearing, Section 32 denies children of same-sex parents the protections and stability they would enjoy if their parents could marry.

noting the only effect the marriage recognition bans have on children's well-being is harming the children of same-sex couples who are denied the protection and stability of having parents who are legally married

See Obergefell, 962 F.Supp.2d at 993-95, 2013 WL 7869139, at *20 (noting the only effect the marriage recognition bans have on children’s well-being is harming the children of same-sex couples who are denied the protection and stability of having parents who are legally married); see also Golinski, 824 F.Supp.2d at 992 (“The denial of recognition and withholding of marital benefits to same-sex couples does nothing to support opposite-sex parents, but rather merely serves to endanger children of same-sex parents.”); Pedersen, 881 F.Supp.2d at 336-37 (finding that the denial of marriage to same-sex parents “in fact leads to a significant unintended and untoward consequence by limiting the resources, protections, and benefits available to children of same-sex parents.”).

"The denial of recognition and withholding of marital benefits to same-sex couples does nothing to support opposite-sex parents, but rather merely serves to endanger children of same-sex parents."


finding that the denial of marriage to same-sex parents "in fact leads to a significant unintended and untoward consequence by limiting the resources, protections, and benefits available to children of same-sex parents."


Context: Notwithstanding this contention, which refers only to Roe and not the other Plaintiffs, Plaintiffs have standing to pursue their declaratory judgment claim because an actual controversy exists between the parties as to the proper interpretation of the laws governing needle exchange, and because Plaintiffs are likely to suffer future harm as a result of Defendants' interpretation of Section 80.135. As this Court determined, Plaintiffs have satisfied the burden of pleading likelihood of future harm in this case.

See Roe v. City of New York, 151 F.Supp.2d 495, 502-504 (S.D.N.Y.2001) (no per se rule requiring any prior act as basis for finding future likelihood of future injury where ongoing pattern and practice of arresting and detaining needle exchange participants in the vicinity of needle exchange participants in the vicinity of needle exchange centers pled); see also Deshawn v. Safir, 156 F.3d 340, 344 (2d Cir.1998) (likelihood of future harm requirement applies to claim for either injunctive or declaratory relief).'


Context: Briggs's appeal falls within the scope of the waiver, which by its terms applies in a direct criminal appeal unless the sentence imposed was above the court-determined Guidelines range. Further, the record reflects that Briggs entered into both the waiver and the plea agreement knowingly and voluntarily, and we find that no miscarriage of justice would result from enforcing the waiver in this ease.

See United States v. Jennings, 662 F.3d 988, 990 (8th Cir.2011) (court should enforce appeal waiver if both waiver and plea agreement were entered into knowingly and voluntarily, appeal is within scope of waiver, and no miscarriage of justice would result), cert. denied, -U.S.-, 132 S.Ct. 2407, 182 L.Ed.2d 1043 (2012); see also United States v. Azure, 571 F.3d 769, 772 (8th Cir.2009) (de novo review of whether defendant waived right to appeal sentence).


Context: in most circumstances a lawyer may rely on his client's decision against presenting mitigating evidence only after completing an appropriate investigation and only where the client's decision is "informed and knowing."

"A defendant's insistence that counsel not call witnesses at the penalty phase does not eliminate counsel's duty to investigate mitigating evidence or to advise the defendant of the potential consequences of failing to introduce mitigating evidence, thereby assuring that the defendant's decision regarding such evidence is informed and knowing."

Williams v. Woodford, 306 F.3d 665, 720 (9th Cir. 2002) (“A defendant’s insistence that counsel not call witnesses at the penalty phase does not eliminate counsel’s duty to investigate mitigating evidence or to advise the defendant of the potential consequences of failing to introduce mitigating evidence, thereby assuring that the defendant’s decision regarding such evidence is informed and knowing.”).

"Trial counsel did not fulfill their obligation to conduct a thorough investigation of the defendant's background." (citing 1 ABA Standards for Criminal Justice 4-4.1 cmt. at 4-55 (2d ed.1980)

See Williams v. Taylor, 529 U.S. 362, 396, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (“Trial counsel did not fulfill their obligation to conduct a thorough investigation of the defendant’s background.” (citing 1 ABA Standards for Criminal Justice 4-4.1 cmt. at 4-55 (2d ed.1980))); Silva, 279 F.3d at 840 (“While not directly addressing a situation where a client purportedly seeks to prohibit an attorney from investigating his background, these guidelines suggest that a lawyer’s duty to investigate is virtually absolute, regardless of a Ghent’s expressed wishes.” (citing 1 ABA Standards for Criminal Justice 4-4.1 cmt. at 4-55 (2d ed.1980))).


"While not directly addressing a situation where a client purportedly seeks to prohibit an attorney from investigating his background, these guidelines suggest that a lawyer's duty to investigate is virtually absolute, regardless of a Ghent's expressed wishes." (citing 1 ABA Standards for Criminal Justice 4-4.1 cmt. at 4-55 (2d ed.1980


Context: Although we have not previously addressed the issue of the duration of a bankruptcy fraud for the purpose of setting loss under the Guidelines, other circuits have held that bankruptcy fraud is a continuing offense which lasts until it is detected or its consequences are purged.

in bankruptcy concealment action, calculation of fraud loss should take into account relevant conduct under Guideline SS 1B1.3 that occurred after defendant's initial bankruptcy filing where it was linked to the bankrupt estate

See United States v. Stein, 233 F.3d 6, 18-19 (1st Cir.2000) (“concealment by its nature is an act which goes on until detected or its consequences are purged ... [h]ence it was proper for the court to base its intended loss findings on the value of the property at the time of the sale,” not at the time of concealment); cf. United States v. Butner, 277 F.3d 481, 487-88 (4th Cir.2002) (in bankruptcy concealment action, calculation of fraud loss should take into account relevant conduct under Guideline § 1B1.3 that occurred after defendant’s initial bankruptcy filing where it was linked to the bankrupt estate); United States v. Moody, 923 F.2d 341, 351 (5th Cir.1991) (noting that concealment of bankruptcy assets is a “continuing offense”).

"concealment by its nature is an act which goes on until detected or its consequences are purged ... [h]ence it was proper for the court to base its intended loss findings on the value of the property at the time of the sale," not at the time of concealment


noting that concealment of bankruptcy assets is a "continuing offense"


Context: Based on the foregoing evidence and the law in Tennessee regarding mutual mistake, it would appear that but for the debtors' current bankruptcy filing, a court of equity would reform the deed in question to preserve First American's secured position.

See also Jones v. Jones, 150 Tenn. 554, 266 S.W. 110, 120 (1924) (court stated that it was well-settled that a court of equity may reform a written instrument on the ground of mistake, but held no showing of mutual mistake in the case).

See Alston v. Porter, 31 Tenn.App. 628, 219 S.W.2d 745, 747 (1949) (court reformed deed which set forth descriptions of two tracts of property since understanding of parties was that only one tract was to be sold); Hamilton Nat’l Bank of Chattanooga v. Duncan, 23 Tenn.App. 329, 132 S.W.2d 353, 354 (1939) (absent intervening rights of innocent third parties, reformation permitted where creditor had executed release of note by mistake); Anderson, 74 S.W.2d at 390 (court set aside deed reserving life estate based upon evidence that there was no real meeting of the minds of the parties); City Bank & Trust Co. v. Webb, 1997 WL 44391 at *2 (Tenn.App. Feb.5, 1997) (court of appeals affirmed setting aside of foreclosure sale by chancery court where through mutual mistake bank had foreclosed on wrong lot).


absent intervening rights of innocent third parties, reformation permitted where creditor had executed release of note by mistake


court set aside deed reserving life estate based upon evidence that there was no real meeting of the minds of the parties


court of appeals affirmed setting aside of foreclosure sale by chancery court where through mutual mistake bank had foreclosed on wrong lot


Context: Detective Collins testified that Hodge's drug business in Virginia was related to the New York sales in that Collins "had received information that .... Hodge was selling cocaine on the Eastern Seaboard from Upstate New York to Virginia, as well as North Carolina, transporting cocaine."

Id. at 433. This evidence, taken together, constituted a strong showing of regularity. Cf. United States v. Uwaeme, 975 F.2d 1016, 1019 (4th Cir.1992) (explaining that at sentencing district court may consider reliable hearsay in determining drug quantity).

stating without explanation that "[w]hen regularity is to provide most of the foundation for temporally remote, relevant conduct, specific repeated events outside the offense of conviction must be identified"

But see United States v. Hahn, 960 F.2d 903, 911 (9th Cir.1992) (stating without explanation that “[w]hen regularity is to provide most of the foundation for temporally remote, relevant conduct, specific repeated events outside the offense of conviction must be identified”).


Context: Assuming this distribution arrangement required a license for the Composition, there may be an issue of fact about whether Plaintiff knew, in light of the Album's release, that Defendant licensed the Composition to Montage Records without his permission. However, this lack of clarity does not defeat summary judgment.

See Lottie Joplin Thomas Trust, 456 F.Supp. at 535 (granting summary judgment for plaintiff on defendant’s estoppel defense “[ejven assuming that plaintiff was aware of the ... assignment from its inception”); see also Hampton v. Paramount Pictures Corp., 279 F.2d 100, 104-05 (9th Cir.1960) (affirming dismissal of estoppel defense in copyright action where trial court assumed that Plaintiff knew of infringing conduct and Defendant was ignorant of the true facts, but found no holding out or reliance).

granting summary judgment for plaintiff on defendant's estoppel defense "[ejven assuming that plaintiff was aware of the ... assignment from its inception"


Context: First, it is neither uncommon nor improper for district courts to grant applications made pursuant to SS 1782 ex parte. The respondent's due process rights are not violated because he can later challenge any discovery request by moving to quash pursuant to Federal Rule of Civil Procedure 45(c)(3).

reviewing district court's grant of motion to quash subsequent to ex parte grant of SS 1782 petition

See, e.g., Brandi-Dohrn, 673 F.3d at 78 (reviewing district court’s grant of motion to quash subsequent to ex parte grant of § 1782 petition); In re Edelman, 295 F.3d 171, 173-75 (2d Cir.2002) (same); Nat’l Broad. Co. v. Bear Stearns & Co., 165 F.3d 184, 186 (2d Cir.1999) (same); see also In re Letters Rogatory from Tokyo Dist., 539 F.2d 1216, 1220 (9th Cir.1976) (“Letters Rogatory are customarily received and appropriate action taken with respect thereto ex parte.”). Accordingly, Gushlak’s contention that he “was entitled to respond to the [§ 1782] [application both factually and legally and have his response considered by the district court as part of its plenary consideration of the [application” (Gushlak Reply Br. 11) is without merit.

"Letters Rogatory are customarily received and appropriate action taken with respect thereto ex parte."


Context: PLI's preemption argument rests entirely on the broad interpretation given to the jurisdictional terms "relate to." 29 U.S.C. SS 1144(a). According to PLI, the mere reference to the Martin Oil pension plan in the instant ease requires preemption. Yet, this is far from true, as the mere incidental reference or effect of state laws on an ERISA plan does not provide the requisite basis for preemption.

holding that preemption was not required because Michigan's Single Business Tax had only an incidental effect on ERISA plans despite fact that tax was calculated based on plan contributions

See Aetna Life Ins. Co. v. Borges, 869 F.2d 142, 146-47 (2nd Cir.), cert. denied, 493 U.S. 811, 110 S.Ct. 57, 107 L.Ed.2d 25 (1989) (stating that “[w]hat triggers ERISA preemption is not just any indirect effect on administrative procedures but rather an effect on the primary administrative functions of benefit plans, such as determining an employee’s eligibility for a benefit and the amount of that benefit”); see also Thiokol Corp. v. Roberts, 858 F.Supp. 674, 683-84 (W.D.Mich.1994), aff'd, 76 F.3d 751 (1996), cert. denied sub nom. Thiokol Corp. v. Revenue Div’n, Dep’t of Treasury, 520 U.S. 1271, 117 S.Ct. 2448, 138 L.Ed.2d 206 (1997) (holding that preemption was not required because Michigan’s Single Business Tax had only an incidental effect on ERISA plans despite fact that tax was calculated based on plan contributions); accord Provience v. Valley Clerks Trust Fund, 509 F.Supp. 388, 391 (E.D.Cal.1981) (holding that “where the state law has only an indirect effect on the plan and where it is one of general application which pertains to an area of important state concern, the court should find there has been no preemption”).

stating that "[w]hat triggers ERISA preemption is not just any indirect effect on administrative procedures but rather an effect on the primary administrative functions of benefit plans, such as determining an employee's eligibility for a benefit and the amount of that benefit"


Context: Businesses may have a reasonable expectation of privacy in their information contained in their records. See G.M.

Fourth Amendment applies to government's "perusal of financial books and records"

Leasing Corp. v. United States, 429 U.S. 338, 352, 97 S.Ct. 619, 50 L.Ed.2d 530 (1977) (seizure of corporate books and records implicated company’s privacy interest); See v. City of Seattle, 387 U.S. 541, 544, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967) (Fourth Amendment applies to government’s “perusal of financial books and records”).

seizure of corporate books and records implicated company's privacy interest


Context: Similarly, Kentucky courts have also compelled employees to arbitrate statutory civil rights claims.

compelling arbitration of sexual harassment and discrimination claims under K.R.S. SS 344

See Hill v. Hilliard, 945 S.W.2d 948, 951 (Ky.App.1997) (dismissing claims of sexual harassment and retaliation arising under K.R.S. 344 and compelling employee to submit claims to binding arbitration), cert. denied, 522 U.S. 981, 118 S.Ct. 442, 139 L.Ed.2d 378 (1997); see also Willis v. Dean Witter Reynolds, Inc., 948 F.2d 305 (6th Cir.1991) (compelling arbitration of sexual harassment and discrimination claims under K.R.S. § 344). Kentucky courts have also required common law tort claims to be arbitrable. Hill, supra.


Context: Finally, as noted, Appellant offers no authority requiring trial courts to list each category of catchall mitigation evidence on the verdict slip. In fact, case law of this Court has held to the contrary.

See Commonwealth v. Miller, 560 Pa. 500, 746 A.2d 592, 604 (2000) (rejecting claim that a verdict slip that was identical to the form mandated by Pa.R.Crim.P. 358A [renumbered as Pa.R.Crim.P. 808] prevented the jury from considering mitigation evidence presented by the defendant because such evidence was not specifically listed on the form or enumerated in the jury charge); see also Commonwealth v. Reyes, 600 Pa. 45, 963 A.2d 436, 442 (2009) (holding that the jury’s finding of various factors supporting the “catch-all” mitigating circumstance set forth at 42 Pa.C.S. § 9711(e)(8) “did not metamorphose those factors into additional statutory mitigators”).

holding that the jury's finding of various factors supporting the "catch-all" mitigating circumstance set forth at 42 Pa.C.S. SS 9711(e)(8) "did not metamorphose those factors into additional statutory mitigators"


Context: The same fundamental problems noted above apply to the issue of damages. Indiana law requires a sufficient degree of certainty to support damage awards. The typical recovery for breach of contract is a party's expectation interest (i.e., the benefit of the bargain).

affh-ming summary judgment because "[ajppellant presented nothing outside the pleadings that allowed any inference of damage"

Consultants, Inc. v. Barnes, 978 F.2d 996, 1001 (7th Cir.1992) (affh-ming summary judgment because “[ajppellant presented nothing outside the pleadings that allowed any inference of damage”); see also Mid-America Tablewares, Inc. v. Mogi Trading Co., Ltd., 100 F.3d 1353, 1363 (7th Cir. 1996) (noting that where a party could not prove its lost profits with reasonable certainty, summary judgment or judgment as a matter of law may be appropriate).


Context: "If [ECMC] develop[s] proof of consent that requires burdensome, individualized in quiries," the Court can either handle such issues in the context of classwide proceedings or, if necessary, revisit certification.

See Kristensen, 12 F.Supp.3d at 1307-08 (finding-superiority requirement met in a putative class action where the court could review individual affidavits averring lack of consent rather than holding thousands of separate trials); see also Ades, 2014 WL 4627271, at *12 (noting that class certification can be revisited if individualized issues of consent prove unmanageable).


Context: The Supreme Court decided about the same time that a prison regulation that restricts prisoners' contact with the press is valid but only "[s]o long as this restriction operates in a neutral fashion, without regard to the content of the expression." And it has likewise been decided that a prison regulation that operates in the area of inmates' First Amendment rights must have some rational connection with a legitimate governmental interest, and that regulation must "operate[] in a neutral fashion, without regard to the content of the expression."

See also, Bell v. Wolfish, 441 U.S. 520, 551, 99 S.Ct. 1861, 1880, 60 L.Ed.2d 447 (1979) (upholding content-neutral regulation requiring that hard cover books be sent only by publishers).

Turner v. Safley, 482 U.S. 78, 89-90, 107 S.Ct. 2254, 2261-62, 96 L.Ed.2d 64 (1987) (upholding ban on prisoner-to-prisoner correspondence in part because it was content-neutral).


Context: The majority of circuit courts to have considered the question, however, have answered it in the affirmative.

See Roberson v. Giuliani, 346 F.3d 75 (2d Cir.2003) (finding that the parties’ settlement agreement conveyed prevailing party status upon plaintiff because “until the district court signed the dismissal Order retaining jurisdiction, the Agreement was not yet in affect” and, therefore, “it was the court’s order that created the change in the legal relationship between plaintiffs and ... defendants”); Truesdell v. Philadelphia Housing Authority, 290 F.3d 159 (3d Cir.2002) (finding that if a private settlement is enforceable against opposing party through a court order, even though the order is titled “Consent Decree,” the party in whose favor that order is entered may be termed the prevailing party); Smyth v. Rivero, 282 F.3d 268 (4th Cir.2002) (“[A]n order containing an agreement reached by the parties may be functionally a consent decree for purposes of the inquiry to which Buckhannon directs us, even if not entitled as such.”); Barrios v. California Interscholastic Fed., 277 F.3d 1128 (9th Cir.2002) (interpreting footnote 7 in Buckhan-non as “dictum [which merely] suggests that a plaintiff ‘prevails’ only when he or she receives a favorable judgment on the merits or enters into a court-supervised consent decree” and finding plaintiff to be a prevailing party because he obtained a legally enforceable settlement agreement); Am. Disability Assoc., Inc. v. Chmielarz, 289 F.3d 1315 (11th Cir.2002) (“if the district court either incorporates the terms of a settlement into its final order of dismissal or expressly retains jurisdiction to enforce a settlement, it may thereafter enforce the terms of the parties’ agreement,” and its authority to do so “clearly establishes a ‘judicially sanctioned change in the legal relationship of the parties,’ as required by Buckhannon, because the plaintiff thereafter may return to court to have the settlement enforced”); but see, Christina A. v. Bloomberg, 315 F.3d 990 (8th Cir.2003) (continuing enforcement jurisdiction is insufficient to convey prevailing party status on the plaintiff).

finding that the parties' settlement agreement conveyed prevailing party status upon plaintiff because "until the district court signed the dismissal Order retaining jurisdiction, the Agreement was not yet in affect" and, therefore, "it was the court's order that created the change in the legal relationship between plaintiffs and ... defendants"


finding that if a private settlement is enforceable against opposing party through a court order, even though the order is titled "Consent Decree," the party in whose favor that order is entered may be termed the prevailing party


"[A]n order containing an agreement reached by the parties may be functionally a consent decree for purposes of the inquiry to which Buckhannon directs us, even if not entitled as such."


interpreting footnote 7 in Buckhan-non as "dictum [which merely] suggests that a plaintiff 'prevails' only when he or she receives a favorable judgment on the merits or enters into a court-supervised consent decree" and finding plaintiff to be a prevailing party because he obtained a legally enforceable settlement agreement


"if the district court either incorporates the terms of a settlement into its final order of dismissal or expressly retains jurisdiction to enforce a settlement, it may thereafter enforce the terms of the parties' agreement," and its authority to do so "clearly establishes a 'judicially sanctioned change in the legal relationship of the parties,' as required by Buckhannon, because the plaintiff thereafter may return to court to have the settlement enforced"


Context: As the court noted above, the issue of whether a PRP has standing to bring a cost recovery action is hotly-debated, and neither the Third Circuit nor the Supreme Court has directly confronted the issue. Based upon a thorough review of the existing case law, the statute, and the legislative history and policy goals of CERCLA, the court must side with those courts that have found that any person who incurs response costs, regardless of their own potential or actual liability, has standing to bring a cost recovery action.

See Laidlaw Waste Systems, 925 F.Supp. at 631 (noting that after careful consideration of all decisions on the issue, the court found the majority decisions less persuasive); see also Charter Tp. of Oshtemo, 910 F.Supp. at 337 (finding that interpreting CERCLA such as to bar § 107 cost recovery actions by PRPs “ignores the plain language of section 107, serves some of the purposes of CERCLA less well, and appears to conflict with the Supreme Court’s language in Key Tronic ”).

finding that interpreting CERCLA such as to bar SS 107 cost recovery actions by PRPs "ignores the plain language of section 107, serves some of the purposes of CERCLA less well, and appears to conflict with the Supreme Court's language in Key Tronic "


Context: Respondent's testimony indicates that Smith's violent behavior was an unreasonable reaction to a reasonable demand for Smith to return Respondent's medicine. Further, after Smith attacked Respondent and Respondent retreated to his bedroom, Respondent's reappearance at the kitchen's threshold with a loaded pistol by his side was lawful, as he had a right to defend his home and demand that Smith leave.

"A man who attempts to force himself into another's dwelling, or who, being in the dwelling by invitation or license refuses to leave when the owner makes that demand, is a trespasser...." (emphasis added

See State v. Rye, 375 S.C. 119, 123, 651 S.E.2d 321, 323 (2007) (“As the defense of habitation provides, defending one’s home or premises means ending an unwarranted intrusion through the use of reasonably necessary means of ejection.” (citing State v. Bradley, 126 S.C. 528, 533, 120 S.E. 240, 242 (1923))); Bradley, 126 S.C. at 533, 120 S.E. at 242 (“A man who attempts to force himself into another’s dwelling, or who, being in the dwelling by invitation or license refuses to leave when the owner makes that demand, is a trespasser....” (emphasis added)); cf. State v. Dickey, 394 S.C. 491, 499-501, 716 S.E.2d 97, 101-02 (2011) (concluding that the accused, an armed security guard for an apartment complex, was without fault in bringing about the difficulty as a matter of law because he was exercising his right to eject trespassers in good faith).


Context: If a plaintiff fails to rebut the presumption "by a preponderance of the evidence to the contrary," a verdict will be directed that the product was "not defective." For this reason the Kentucky courts have not generally permitted advising the jury of any presumptions except in a narrow set of circumstances not applicable here.

See Lowe v. McMurray, 412 S.W.2d 571, 574 (Ky.1967) (general prohibition against instructing jury as to questions of law or fact); Mason, 565 S.W.2d at 141 (jury should not be informed of presumption of sanity in criminal cases).

But cf. Wells v. Commonwealth, 561 S.W.2d 85, 86 (Ky.1978) (particular statute involving expert testimony creates a presumption of fact and jury may be informed of it).


jury should not be informed of presumption of sanity in criminal cases


Context: . The Court does not find the decisions Plaintiff cites, relating to the economic consequences of participation in administrative reviews, to be of direct relevance. On the other hand, cases challenging the scope of agency authority support the Court's rationale.

See Techsnabexport 16 CIT 420, 795 F.Supp. 428 (residual jurisdiction found where the existence of the anti-dumping duty order itself was called into question); see also Jia Farn, 17 CIT at 191, 817 F.Supp. 969, 973 (while exercising its residual jurisdiction, the Court found Commerce’s initiation of a changed circumstances review for the purpose of reinstatement of an antidumping duty order, to be within the scope of agency authority under section 1675).

while exercising its residual jurisdiction, the Court found Commerce's initiation of a changed circumstances review for the purpose of reinstatement of an antidumping duty order, to be within the scope of agency authority under section 1675


Context: Here, because there was no evidence that Okolo attempted to conceal or hide the collateral, the banks could reasonably expect to recover the value of the vehicles securing the loans. We therefore find that the value of the vehicles should have been deducted from the unpaid balances of the loans to determine the amount of the loss.

upholding use of full amount of car loan as intended loss where defendant attempted to conceal the vehicle, but reversing use of full value of loan for tools where "there is no evidence that Mr. Williams intended to conceal the tools"

Id.; see United States v. Baum, 974 F.2d 496, 498 (4th Cir.1992) (reversing district court’s determination that amount of loss was equal to face amount of fraudulently obtained loan and requiring that “value of the security interest should be deducted from the amount of the loan in determin ing ‘loss’ ” and payments on loans “should also be considered”); see also United States v. Williams, 292 F.3d 681, 686 (10th Cir.2002) (upholding use of full amount of car loan as intended loss where defendant attempted to conceal the vehicle, but reversing use of full value of loan for tools where “there is no evidence that Mr. Williams intended to conceal the tools”); United States v. Nichols, 229 F.3d 975, 979 (10th Cir.2000) (finding determination of loss as full amount of loan “clearly erroneous” where loan secured by collateral and there was no evidence “that the Defendant intended to permanently deprive the creditor of the collateral through concealment”).

reversing district court's determination that amount of loss was equal to face amount of fraudulently obtained loan and requiring that "value of the security interest should be deducted from the amount of the loan in determin ing 'loss' " and payments on loans "should also be considered"


finding determination of loss as full amount of loan "clearly erroneous" where loan secured by collateral and there was no evidence "that the Defendant intended to permanently deprive the creditor of the collateral through concealment"


Context: Accordingly, the rule established in Waller does not apply to this case.

"[I]t would be unjustifiably impractical to require the police to take affirmative steps to confirm the actual authority of a consenting individual whose authority was apparent____"

See id. (discussing Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) (“[I]t would be unjustifiably impractical to require the police to take affirmative steps to confirm the actual authority of a consenting individual whose authority was apparent____”)); see also Penney, 576 F.3d at 309 (“Lovers’ quarrels and reconciliations are as much of a ‘reality in today’s world’ as is cohabitation without ‘legal formalities,’ and the police cannot be faulted for not presuming that a particular quarrel put an end to the couple’s relationship and living arrangements.”).

"Lovers' quarrels and reconciliations are as much of a 'reality in today's world' as is cohabitation without 'legal formalities,' and the police cannot be faulted for not presuming that a particular quarrel put an end to the couple's relationship and living arrangements."


Context: P28 Thus, we follow suit and hold that, under A.R.S. SS 8-535(F), the essential question in deciding if reasonable grounds exist to believe a parent is mentally incompetent is whether the parent is unable to understand the nature and object of the proceedings or assist in his or her defense.

"By definition, a mentally incompetent person is one who is unable to understand the nature of the termination proceeding and unable to assist in the presentation of his or her case."

Alexander V., 613 A.2d at 784 (“By definition, a mentally incompetent person is one who is unable to understand the nature of the termination proceeding and unable to assist in the presentation of his or her case.”); Adoption of Kirk, 35 Mass.App.Ct. 533, 623 N.E.2d 492, 495 (1993) (same); see also Sherry S. Zimmerman, Annotation, Parents’ Mental Illness or Mental Deficiency as Ground for Termination of Parental Rights—Issues Concerning Guardian Ad Litem and Counsel, 118 A.L.R. 5th 561 (2004) (whether “parents are capable of understanding the nature of proceedings dealing with the issue of termination of their parental rights and are able to help their attorneys prepare a defense on their behalf’).

whether "parents are capable of understanding the nature of proceedings dealing with the issue of termination of their parental rights and are able to help their attorneys prepare a defense on their behalf'


Context: . Although the average victim of malicious prosecution may not have experienced such a high degree of stress and anxiety from Trigg's malicious prosecution, "a defendant must take a plaintiff as [s]he finds him" and, therefore, is responsible for the harm she inflicts on a person even if that harm is exacerbated by the person's unknown infirmities.

reversing the trial court's grant of remittitur on a jury award of $500,000 for a plaintiff who sustained minor physical injuries and an "acute psychotic breakdown" resulting from a car accident

Bartolone v. Jeckovich, 103 A.D.2d 632, 481 N.Y.S.2d 545, 546-47 (4th Dep't 1984) (reversing the trial court’s grant of remittitur on a jury award of $500,000 for a plaintiff who sustained minor physical injuries and an “acute psychotic breakdown” resulting from a car accident) (citing McCahill v. New York Transp. Co., 201 N.Y. 221, 94 N.E. 616 (1911)); cf. Steinhauser v. Hertz Corp., 421 F.2d 1169, 1172 (2d Cir.1970) (Friendly, /.) (reversing a verdict in defendant's favor on the ground that the plaintiff’s theory of the case — that a defendant is liable for the emergence of schizophrenia resulting from the emotional trauma suffered by a passenger in a minor car accident caused by the defendant— is legally valid); Williams v. Bright, 230 A.D.2d 548, 658 N.Y.S.2d 910, 912 n. 2 (1st Dep’t 1997) (recognizing that the "eggshell skull doctrine" is "traditionally [applied] to a plaintiff's preexisting physical condition, mental illness or psychological disability” (internal citations omitted)).

reversing a verdict in defendant's favor on the ground that the plaintiff's theory of the case -- that a defendant is liable for the emergence of schizophrenia resulting from the emotional trauma suffered by a passenger in a minor car accident caused by the defendant-- is legally valid


Context: Flowever, MBCC's security interest was not created by Duty Free (the buyer's seller), but rather by Duty Free's transferor, Customer. Therefore, Walden cannot claim the benefit of section 9-320, and MBCC's "security interest... continues in [the car] notwithstanding sale... or other disposition thereof...." 13 Pa.C.S. SS9315.

See Gordon v. Hamm, 63 Cal. App. 4th 1324, 74 Cal. Rptr.2d 631 (2d Dist. 1998) (purchaser of used motor home from dealer took subject to security interest created by original owner); Marine Midland Bank v. Smith Boys Inc., 129 Misc.2d 37, 492 N.Y.S.2d 355 (Erie Cty. 1985) (purchaser of used boat from dealer took subject to security interest created by original owner); Ocean County National Bank v. Palmer, 188 N.J. Super. 509, 457 A.2d 1225 (1983) (purchaser of used boat from dealer took subject to security interest created by original owner, even though dealer had been involved in obtaining that security interest); Martin Bros. Implement Co. v. Diepholz, 109 Ill. App.3d 283, 440 N.E.2d 320 (4th Dist. 1982) (purchaser of used bulldozer from dealer took subject to security interest created by original owner).

Cf. Schultz v. Bank of the West, CBC, 325 Or. 81, 934 P.2d 421 (1997) (purchaser of used motor home from dealer took free and clear of security interest created by original owner where original owner consigned motor home to dealer); C&J Leasing II, Ltd. Partnership v. Agri Financial Services Inc., 439 N.W.2d 210 (Iowa 1989) (purchaser of used farm equipment from dealer took free of security interest created by original owner where dealer was instrumental in creating original owner’s security interest and original owner left equipment in dealer’s pos session); Adams v. City National Bank & Trust Co. of Norman, 565 P.2d 26, 31 (Okla. 1977) (“Nothing in the comments to article 9 required the ‘created by [buyer’s] seller’ limitation to be an insurmountable barrier to good faith acquisition of pre-encumbered property from a dealer who himself was instrumental in creating the encumbrance and conflict”).


purchaser of used farm equipment from dealer took free of security interest created by original owner where dealer was instrumental in creating original owner's security interest and original owner left equipment in dealer's pos session


"Nothing in the comments to article 9 required the 'created by [buyer's] seller' limitation to be an insurmountable barrier to good faith acquisition of pre-encumbered property from a dealer who himself was instrumental in creating the encumbrance and conflict"


purchaser of used boat from dealer took subject to security interest created by original owner


purchaser of used boat from dealer took subject to security interest created by original owner, even though dealer had been involved in obtaining that security interest


purchaser of used bulldozer from dealer took subject to security interest created by original owner


Context: Moreover, the absolute immunity the defendants enjoy for offering the composite tape into evidence is not defeated by Cig-netti's allegations that they did so maliciously or in bad-faith because they knew or should have known that the composite tape was fabricated.

"Consideration of personal motives is directly at odds with the Supreme Court's simple functional analysis of prosecutorial immunity."

See e.g. Imbler, 424 U.S. at 409, 96 S.Ct. 984 (concluding that absolute prosecutorial immunity precluded a § 1983 claim alleging that a prosecutor had knowingly used perjured testimony and deliberately suppressed exculpatory material at trial); Burns, 500 U.S. at 478, 111 S.Ct. 1934 (holding prosecutor had absolute immunity for claim for eliciting misleading testimony in a probable cause hearing); see also Kulwicki v. Dawson, 969 F.2d 1454, 1464 (3d Cir.1992) (“Consideration of personal motives is directly at odds with the Supreme Court’s simple functional analysis of prosecutorial immunity.”); Grant v. Hollenbach, 870 F.2d 1135, 1138 (6th Cir.1989) (holding prosecutor absolutely immune for deciding to pursue criminal charges despite challenge to his motivation); Krohn v. United States, 742 F.2d 24, 30 (1st Cir.1984) (“A limitation that absolute immunity from common lawsuit can only be invoked if the official acted lawfully would swallow the immunity altogether.”).

concluding that absolute prosecutorial immunity precluded a SS 1983 claim alleging that a prosecutor had knowingly used perjured testimony and deliberately suppressed exculpatory material at trial


holding prosecutor absolutely immune for deciding to pursue criminal charges despite challenge to his motivation


"A limitation that absolute immunity from common lawsuit can only be invoked if the official acted lawfully would swallow the immunity altogether."


holding prosecutor had absolute immunity for claim for eliciting misleading testimony in a probable cause hearing


Context: In both instances, the jury was given a curative instruction. No evidence or information has been presented to counter the presumption that jurors follow the instructions given by the court.

"[W]e presume juries to be composed of prudent, intelligent individuals, and we will not speculate whether jurors disregard the court's instructions of law or their oaths."

See Richardson v. Marsh, 481 U.S. 200, 206, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987) (there is an “almost invariable assumption of the law that jurors follow their instructions.”); see also United States v. Harper, 466 F.3d 634, 647 (8th Cir.2006), cert. denied, 549 U.S. 1273, 127 S.Ct. 1504, 167 L.Ed.2d 242 (2007) (“[W]e presume juries to be composed of prudent, intelligent individuals, and we will not speculate whether jurors disregard the court’s instructions of law or their oaths.”).

there is an "almost invariable assumption of the law that jurors follow their instructions."


Context: It is self-evident and legally true that Zhou's suffering, endured for the safe birth of his third child, amounts to more than harassment. Zhou's flight with his wife from their home to ensure she stayed safely hidden during her pregnancy, in defiance of China's family planning policy, clearly demonstrates past persecution in addition to "other resistance."

"[W]e have consistently recognized, being forced to flee from one's home in the face of an immediate threat of severe physical violence or death is squarely encompassed within the rubric of persecution, as long as the persecutors' actions are motivated by [a] protected consideration"

See Mendoza-Pablo v. Holder, 667 F.3d 1308, 1314 (9th Cir.2012) (“[W]e have consistently recognized, being forced to flee from one’s home in the face of an immediate threat of severe physical violence or death is squarely encompassed within the rubric of persecution, as long as the persecutors’ actions are motivated by [a] protected consideration”); see also Jiang v. Holder, 611 F.3d 1086, 1093-97 (9th Cir.2010) (finding that a couple’s efforts to marry despite China’s family planning policies, to conceive a child despite a forced abortion, and to flee from home to avoid police and family planning officers constituted “other resistance” and persecution); Li v. Ashcroft, 356 F.3d 1153, 1158-60 (9th Cir.2004) (en banc) (finding persecution as a result of a forced gynecological examination of a woman and threats of sterilization to her partner).

finding that a couple's efforts to marry despite China's family planning policies, to conceive a child despite a forced abortion, and to flee from home to avoid police and family planning officers constituted "other resistance" and persecution


finding persecution as a result of a forced gynecological examination of a woman and threats of sterilization to her partner


Context: Construing the facts in favor of Plaintiffs, the Court finds that they have stated a plausible claim for relief in regards to whether Taylor was denied benefits at the Mason jail. First, for the reasons explained above, the Court finds that Plaintiffs have stated a plausible claim as to Taylor's denial of benefits during questioning, and finds that the case becomes even more compelling during investigative questioning at the jail and when being read his Miranda rights.

"[W]e find that the ADA applies to the post-arrest detention at the jail."

See Tucker, 539 F.3d at 532 (“[W]e find that the ADA applies to the post-arrest detention at the jail.”); see also Calloway v. Boro of Glassboro Dep’t of Police, 89 F.Supp.2d 543, 555-56 (D.N.J.2000) (concluding that deaf individual deprived of benefit of providing information to the police concerning commission of crimes, in witness or suspect capacity, if not provided an interpreter during station-house questioning).


Context: . If there was no proof of any violation of the APO leading to disclosure of a trade secret to defendants, and no issue of the existence of any trade secret disclosed, there would be no issue of fact to be tried. Plaintiffs would not be entitled to a trial in order to call counsel as witnesses solely for the purpose of impeaching them, if that testimony was the only proof of plaintiffs' cause of action. Plaintiff's suspicions as to defendants' dishonesty cannot defeat summary judgment in the absence of other proof of the claim.

See United States v. Eisen, 974 F.2d 246, 262 n. 6 (2d Cir.1992), cert. denied, — U.S. —, 113 S.Ct. 1840, 123 L.Ed.2d 467 (1993); Martin v. Citibank, 762 F.2d 212 (2d Cir.1985) (reversing jury verdict for plaintiff on ground that mere disbelief of only witness on subject, absent other proof, could not support judgment).

See also Dyer v. MacDougall, 201 F.2d 265 (2d Cir.1952) (where there is other independent support in the evidence, a jury may draw a negative inference from disbelief of a witness); 1 J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 401[05], at 401-32 n. 16.


Context: As discussed above, the plaintiffs have failed to indicate any risk concealed by E & Y's allegedly fraudulent audit opinions that then materialized to cause their losses. Furthermore, the first corrective disclosure bearing upon allegations of fraudulent accounting entered the market on July 18, 2002, when the Washington Post published the first of two articles documenting the alleged fraud.

establishing that the class's duty to inquire was triggered by the publication of the Washington Post articles

See In re AOL Time Warner I, 381 F.Supp.2d at 211 (establishing that the class’s duty to inquire was triggered by the publication of the Washington Post articles); cf. Lentell, 396 F.3d at 175 n. 4 (stating that plaintiffs may not argue that they lacked knowledge of a fraud in order to “withstand the statute of limitations” yet argue that the fraud was disclosed for purposes of loss causation prior to the date that they allege they were put on inquiry notice).

stating that plaintiffs may not argue that they lacked knowledge of a fraud in order to "withstand the statute of limitations" yet argue that the fraud was disclosed for purposes of loss causation prior to the date that they allege they were put on inquiry notice


Context: It is well established that "a preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits." In keeping with this principle, many of our sister Circuits have recognized that "[a]ffidavits and other hearsay materials are often received in preliminary injunction proceedings."

"The Federal Rules of Evidence do not apply to preliminary injunction hearings."

Asseo v. Pan Am. Grain Co., 805 F.2d 23, 26 (1st Cir.1986); see also Ty, Inc. v. GMA Accessories, Inc., 132 F.3d 1167, 1171 (7th Cir.1997) (citing Asseo); Levi Strauss & Co. v. Sunrise Int’l Trading, Inc., 51 F.3d 982, 985 (11th Cir.1995) (“At the preliminary injunction stage, a district court may rely on affidavits and hearsay materials which would not be admissible evidence for a permanent injunction....”); Sierra Club, Lone Star Chapter v. FDIC, 992 F.2d 545, 551 (5th Cir.1993) (courts at preliminary injunction stage “may rely on otherwise inadmissible evidence, including hearsay”); Flynt Distrib. Co. v. Harvey, 734 F.2d 1389, 1394 (9th Cir.1984) (“The urgency of obtaining a preliminary injunction ... makes it difficult to obtain affidavits from persons who would be competent to testify at trial. The trial court may even give inadmissible evidence some weight ....”); cf. Heideman v. South Salt Lake City, 348 F.3d 1182, 1188 (10th Cir.2003) (“The Federal Rules of Evidence do not apply to preliminary injunction hearings.”).

"At the preliminary injunction stage, a district court may rely on affidavits and hearsay materials which would not be admissible evidence for a permanent injunction...."


courts at preliminary injunction stage "may rely on otherwise inadmissible evidence, including hearsay"


"The urgency of obtaining a preliminary injunction ... makes it difficult to obtain affidavits from persons who would be competent to testify at trial. The trial court may even give inadmissible evidence some weight ...."


Context: Nonetheless, a disputed term is not thereby insulated from analysis in light of the nature and structure of the statute, the provisions in which the term is used, the possibility of error in the prior construction, and any other relevant considerations in the particular case. When the earlier definition arose for a different HTSUS provision and different products, it is not immune from review and reapplication for different HTSUS provisions and products.

"The meaning of a tariff term is a question of law, reviewable de novo by this court .... "

See Degussa, 508 F.3d at 1047 (“The meaning of a tariff term is a question of law, reviewable de novo by this court .... ”); see also General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581, 595-96, 124 S.Ct. 1236, 157 L.Ed.2d 1094 (2004) (“The presumption of uniform usage [throughout a statute] thus relents when a word used has several commonly understood meanings among which a speaker can alternate in the course of an ordinary conversation, without being confused or getting confusing.” (footnote omitted)); Sherman v. Hamilton, 295 F.2d 516, 520 (1st Cir.1961) (“[I]t is not unusual for the same word to have different connotations in the same act and surely no canon of statutory construction forecloses courts from attributing to the word the meaning which the legislature intended that it should have in each instance.”); see also 2A Sutherland Statutory Construction §§ 46:05, 51.02.

"[I]t is not unusual for the same word to have different connotations in the same act and surely no canon of statutory construction forecloses courts from attributing to the word the meaning which the legislature intended that it should have in each instance."


Context: Rule 702 of the Rhode Island Rules of Evidence provides that expert testimony is permissible "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of fact or opinion." This Court has held that "expert testimony is required to establish any matter that is not obvious to a lay person and thus lies beyond common knowledge."

Mills, 824 A.2d at 468 (holding expert testimony necessary to establish the “existence of a causal relationship between a particular toxin and its effect on the human body”); see also Broadley v. State, 939 A.2d 1016, 1019, 1022 (R.I.2008) (expert testimony required to establish standard of care owed to plaintiff patient by the staff at facility for the disabled); Boccasile v. Cajun Music Limited, 694 A.2d 686, 690-91 (R.I.1997) (requiring expert testimony to establish standard of care owed to patient in wrongful death action against doctor and nurse).

holding expert testimony necessary to establish the "existence of a causal relationship between a particular toxin and its effect on the human body"


requiring expert testimony to establish standard of care owed to patient in wrongful death action against doctor and nurse


Context: In order for plaintiff to prevail under the "dog-bite" statute, she need not prove scienter; that is, that Rossi knew of the dog's dangerous propensities.

holding that one who brings action under a "dog-bite" statute is not required to establish dog's past conduct or owners knowledge thereof

See DeRobertis, 94 N.J. at 151, 462 A.2d 1260 (holding that under the dog-bite statute, “even owners without scienter” become liable upon satisfaction of the statutory elements); see also Nicholes v. Lorenz, 396 Mich. 53, 237 N.W.2d 468, 472 (1976) (holding that one who brings action under a “dog-bite” statute is not required to establish dog’s past conduct or owners knowledge thereof).

holding that under the dog-bite statute, "even owners without scienter" become liable upon satisfaction of the statutory elements


Context: (1) (a) When a state court utilizes a legal test contrary to that endorsed by the Supreme Court, may we affirm the denial of federal habeas relief if the ultimate decision of the state court (but not its reasoning) is consistent with precedent of the Supreme Court?

"A state-court decision will also be contrary to this Court's clearly established precedent if the state court ... arrives at a result different from our precedent."

See Cooper-Smith v. Palmateer, 397 F.3d 1236 (9th Cir.2005) (affirming denial of federal ha-beas relief where de novo review of an ineffective assistance of counsel claim showed that the conduct did not rise to the level of a constitutional violation); cf. Williams v. Taylor, 529 U.S. 362, 406, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (“A state-court decision will also be contrary to this Court’s clearly established precedent if the state court ... arrives at a result different from our precedent.”); Hernandez v. Small, 282 F.3d 1132, 1140 (9th Cir.2002) (“[T]he intricacies of the state court’s analysis need not concern us; what matters is whether the decision the court reached was contrary to controlling federal law.”).


Context: Bankruptcy Code section 501 specifically permits creditors to file proofs of claim. "[T]he filing of a Proof of Claim before a bankruptcy court ... is the logical equivalent of a request for relief from the automatic stay, which cannot in itself constitute a violation of the stay...." Other courts considering the issue have reached a similar conclusion.

"The contention that the exercise of a mandated statutory right under the Bankruptcy Code [such as the filing of a nondischargeability complaint] is a violation of the automatic stay is almost as absurd as a contention that any creditor who files a proof of claim in bankruptcy violated the automatic stay"

See also In re Nelson, 234 B.R. 528, 534 (Bankr.M.D.Fla. 1999) (“The contention that the exercise of a mandated statutory right under the Bankruptcy Code [such as the filing of a nondischargeability complaint] is a violation of the automatic stay is almost as absurd as a contention that any creditor who files a proof of claim in bankruptcy violated the automatic stay”).

"For obvious reasons ... courts have recognized that SS 362(a

See e.g. U.S. v. Inslaw, Inc., 932 F.2d 1467 (D.C.Cir.1991) (“For obvious reasons ... courts have recognized that § 362(a) cannot stay actions specifically authorized elsewhere in the bankruptcy code”); In re Surprise, 342 B.R. 119, 122 (Bankr.N.D.N.Y.2006) (concurring with Sammon); In re Sims, 278 B.R. 457, 472 (Bankr.E.D.Tenn.2002) (accord); In re I.C.H. Corp., 219 B.R. 176, 190 (Bankr.N.D.Tex.1998), rev’d on other grounds, 230 B.R. 88 (N.D.Tex.1999) (“The automatic stay is not applicable to assertion of a claim in a proof of claim filed in a Bankruptcy Court”).


"The automatic stay is not applicable to assertion of a claim in a proof of claim filed in a Bankruptcy Court"


Context: The imposition of joint and several liability is appropriate because of Suman and Rahman's close relationship as husband and wife, and their actions in concert with one another.

ordering joint and several liability where defendant "was to share equally in the proceeds of the fraudulent scheme he enabled"

See S.E.C. v. Hughes Capital Corp., 124 F.3d 449, 455 (3d Cir.1997) (citing First Jersey, 101 F.3d at 1475 (ordering joint and several liability where defendant was “intimately involved” in the fraud)); see also Svoboda, 409 F.Supp.2d at 346 (ordering joint and several liability where defendant “was to share equally in the proceeds of the fraudulent scheme he enabled”). Accordingly, Defendants are jointly and severally liable for $1,039,440 together with prejudgment interest at the IRS underpayment rate.

ordering joint and several liability where defendant was "intimately involved" in the fraud


Context: In light of our holding that Breeland's sawed-off shotgun met the definition of firearm in 26 U.S.C. SS 5845(a)(2), the Government's proof that Breeland possessed an unregistered firearm was overwhelming. Consequently, we hold that the Government's statements, even if improper, were harmless.

See United States v. Hasting, 461 U.S. 499, 511-12, 103 S.Ct. 1974, 1982, 76 L.Ed.2d 96 (1983) (holding that prosecutorial misconduct was harmless in the face of overwhelming evidence of guilt); see also United States v. Rodriguez, 43 F.3d 117, 124 (5th Cir.1995) (“To warrant reversal of a conviction, prosecutorial misconduct must be so pronounced and persistent that it casts serious doubts upon the correctness of the jury’s verdict.”).

"To warrant reversal of a conviction, prosecutorial misconduct must be so pronounced and persistent that it casts serious doubts upon the correctness of the jury's verdict."


Context: Because the petitioner did not even submit the dockets from the underlying Housing Court actions, the single justice did not know (apart from the petitioner's bare allegation) whether the petitioner had, in fact, filed a notice of appeal in those actions. Moreover, the petitioner does not allege, and the dockets do not indicate, that he made any attempt in the trial court to compel or facilitate the assembly of the record.

indicating that clerk's failure to process the petitioner's appeal would have been correctable with appropriate motion in trial court

See Jordan v. Superior Court, 426 Mass. 1019 (1998) (indicating that clerk’s failure to process the petitioner’s appeal would have been correctable with appropriate motion in trial court).

discussing petitioner's burden of demonstrating absence or inadequacy of other remedies

Matthews v. D’Arcy, 425 Mass. 1021, 1022 (1997), and cases cited (discussing petitioner’s burden of demonstrating absence or inadequacy of other remedies).


Context: Upon further investigation, the officers found a bag of "wash clothes" near the Jeep that smelled of bleach and the inside of the Jeep was wet with bleach. Thus, based on probable cause that the automobile contained evidence of a crime, and the necessity to preserve the potential blood evidence, the warrantless search and subsequent seizure did not violate the Fourth Amendment.

holding automobile exception applied to shotgun seized from trunk of vehicle parked at defendant's home

See Cox, 290 S.C. at 492, 351 S.E.2d at 572 (holding automobile exception applied to shotgun seized from trunk of vehicle parked at defendant’s home); State v. Peters, 271 S.C. 498, 501, 248 S.E.2d 475, 477 (1978) (finding probable cause existed to conduct warrantless search of vehicle based on Carroll doctrine where police stopped vehicle after receiving information from confidential informant that defendant was driving vehicle containing marijuana); State v. Hayden, 268 S.C. 214, 218, 232 S.E.2d 889, 891 (1977) (holding probable cause and exigent circumstances justified warrantless search of automobile where officers received information from an informant that defendants would be traveling in a vehicle containing illegal drugs and due to the lateness of the hour it would have been impractical to get a search warrant); State v. Frank, 262 S.C. 526, 531-33, 205 S.E.2d 827, 830 (1974) (concluding warrantless search of automobile was proper where officer had strong reasons to believe that the automobile was being used in criminal activity and that it very probably contained stolen goods); see also Robinson v. State, 18 Md.App. 678, 308 A.2d 734, 739-40 (1973) (outlining cases holding exigency existed for the search of a vehicle and then removal to police garage).


finding probable cause existed to conduct warrantless search of vehicle based on Carroll doctrine where police stopped vehicle after receiving information from confidential informant that defendant was driving vehicle containing marijuana


holding probable cause and exigent circumstances justified warrantless search of automobile where officers received information from an informant that defendants would be traveling in a vehicle containing illegal drugs and due to the lateness of the hour it would have been impractical to get a search warrant


concluding warrantless search of automobile was proper where officer had strong reasons to believe that the automobile was being used in criminal activity and that it very probably contained stolen goods


Context: However, the concerns animating these cases -- namely, the need to deter warrant-less property searches -- do not apply with equal force to the facts of this case. Not only were Lieutenant Paul and his fellow officers lawfully on the premises pursuant to a valid search warrant -- thus reducing any significant concern that applying the inevitable discovery doctrine in this case would subvert the Fourth Amendment warrant requirement -- the evidence here, and the logical inferences therefrom, demonstrate that the police would have obtained Heath's currency during a valid search conducted pursuant to a well-established exception to the warrant requirement, namely, a search incident to a lawful arrest.

"[E]ven assuming that the [pat-down search of the defendant was conducted] prior to [the discovery of] the cocaine [on his companion], [the defendant] could ... have been searched seconds later, once the cocaine provided probable cause to arrest.... Therefore, the search was incident to a lawful arrest regardless of the exact sequence of events (emphases added

See United States v. Allen, 986 F.2d 1354, 1357 (10th Cir.1993) (“[E]ven assuming that the [pat-down search of the defendant was conducted] prior to [the discovery of] the cocaine [on his companion], [the defendant] could ... have been searched seconds later, once the cocaine provided probable cause to arrest.... Therefore, the search was incident to a lawful arrest regardless of the exact sequence of events (emphases added); United States v. Romero, 692 F.2d 699, 704 (10th Cir.1982) (recognizing, without inquiring whether the officers would necessarily have arrested the defendant, that the “discovery of the marijuana in the van provided probable cause to arrest [the defendant], and upon arrest the officers unquestionably would have searched [the defendant] and discovered the marijuana in his pocket”) (emphasis added); see also United States v. Eylicio-Montoya, 70 F.3d 1158, 1166-67 (10th Cir.1995) (applying inevitable discovery exception because, although the defendant had been “prematurely arrested,” the police had reasonable suspicion to stop the defendant’s vehicle and would have noticed the suspicious burlap bags “during the course of a lawful Terry stop”).

applying inevitable discovery exception because, although the defendant had been "prematurely arrested," the police had reasonable suspicion to stop the defendant's vehicle and would have noticed the suspicious burlap bags "during the course of a lawful Terry stop"


recognizing, without inquiring whether the officers would necessarily have arrested the defendant, that the "discovery of the marijuana in the van provided probable cause to arrest [the defendant], and upon arrest the officers unquestionably would have searched [the defendant] and discovered the marijuana in his pocket"


Context: Second, the issue must have been "actually and necessarily determined by a court of competent jurisdiction" in the first trial. Third, preclusion in the second trial must not work an unfairness. Preclusion is sometimes unfair if the party to be bound lacked an incentive to litigate in the first trial, especially in comparison to the stakes of the second trial.

See Blonder-Tongue Laboratories, 402 U.S. at 333, 91 S.Ct. at 1445 (in connection with preclusion against plaintiff in second action who lost as plaintiff in first action against a different defendant); see also Parklane Hosiery, 439 U.S. at 330, 99 S.Ct. at 651 (heightened concern for potential unfairness from preclusion against defendant in second action brought by plaintiff not a party to the first suit).


Context: There is, however, one exception to this rule. Under Crim. P. 85(a), a challenge to what was formerly known as an "HMlegal" sentence, now termed a sentence "not authorized by law," may be raised "at any time."

See People v. Wenzinger, 155 P.3d 415, 418 (Colo.App.2006) (discussing the past and present terminology in Crim. P. 85(a)); see also People v. Bradley, 169 Colo. 262, 264, 455 P.2d 199, 200 (1969) (there is "no requirement" that a Crim. P. 85(a) challenge "be raised on writ of error from the convietion or be thereafter waived"); People v. Watkins, 83 P.3d 1182, 1187 (Colo.App.20083) (illegal sentence issues are jurisdictional in nature).


Context: Whether the vehicle's engine was running when the trooper initiated his seizure of the defendant is a matter of critical importance to the defendant's motion to suppress, for "operation]" of a motor vehicle, G.

"[a] person operates a motor vehicle within the meaning of G. L. c. 90, SS 24, when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of the vehicle"

See Commonwealth v. Uski, 263 Mass. 22, 24 (1928) (“[a] person operates a motor vehicle within the meaning of G. L. c. 90, § 24, when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of the vehicle”).

starting engine of vehicle, or making use of power provided by engine, constitutes "operation" of motor vehicle for purposes of G. L. c. 90, SS 24

See also Commonwealth v. Ginnetti, 400 Mass. 181, 184 (1987) (starting engine of vehicle, or making use of power provided by engine, constitutes “operation” of motor vehicle for purposes of G. L. c. 90, § 24); Commonwealth v. Sudderth, 37 Mass. App. Ct. 317, 320-321 (1994) (intoxicated driver asleep in vehicle with key in ignition and engine running warrants inference of “operation”; driver’s intention in starting vehicle is not element of statutory offense of operating while under influence).


Context: Plaintiffs' concerns about the conclusions these experts' experience led them to, and the believability of those conclusions, go to the weight of the testimony and can be appropriately addressed through cross-examination.

"If the District has an issue with how Mr. Day classified certain late releases, it may address this on cross-examination."

See U.S. v. H & R Block, Inc., 831 F.Supp.2d 27, 34 (D.D.C.2011) (noting that “technical deficiencies that can be adequately explored on cross-examination generally go to the weight, rather than the admissibility, of the evidence, unless the methodological deficiencies are so sweeping or fundamental as to render the survey wholly unreliable and therefore inadmissible”); see also Groobert, 219 F.Supp.2d at 9 (recognizing that “[t]he D.C. Circuit has stated that, ‘by attempting to evaluate the credibility of opposing experts and the persuasiveness of - competing studies, the district court conflate[s] the questions of the admissibility of expert testimony and the weight appropriately to be accorded such testimony by a factfinder’ ”) (quoting Ambrosini, 101 F.3d at 141); Barnes v. District of Columbia, 924 F.Supp.2d 74, 96 (D.D.C.2013) (“If the District has an issue with how Mr. Day classified certain late releases, it may address this on cross-examination.”); Harris v. Koenig, 815 F.Supp.2d 6, 10 (D.D.C. 2011) (“Whether or not [expert’s testimony] is based on ‘unreasonable assumptions’ will be determined at trial after full cross-examination.”); S.E.C. v. Johnson, 525 F.Supp.2d 70, 76 (D.D.C.2007) (“It is for the jury,- not the Court, to determine whether [expert’s] opinions are suspect be cause the facts upon which he relied were shown to be inaccurate or unproven”).

noting that "technical deficiencies that can be adequately explored on cross-examination generally go to the weight, rather than the admissibility, of the evidence, unless the methodological deficiencies are so sweeping or fundamental as to render the survey wholly unreliable and therefore inadmissible"


"Whether or not [expert's testimony] is based on 'unreasonable assumptions' will be determined at trial after full cross-examination."


"It is for the jury,- not the Court, to determine whether [expert's] opinions are suspect be cause the facts upon which he relied were shown to be inaccurate or unproven"


Context: As appellee points out, Wilson was a case in which the defendant appealed after the trial court denied his motion to suppress, and did not involve a State's appeal.

Wilson, 692 S.W.2d at 668 (noting at the time Wilson was decided that the State did not have the right to appeal the granting of a motion to suppress); Flores, 871 S.W.2d at 720. Although distinguishable in this respect, the reasoning of Wilson is still applicable to the instant case and the observations made in Wilson remain true regardless of which party originally initiates the appellate process.

Cf. Wilson, 692 S.W.2d at 668 (recognizing though not relying upon the line of cases which hold the government may raise the issue of standing for the first time on appeal regardless of whether the motion to suppress was granted or denied); State v. Brady, 763 S.W.2d 38, 42 (Tex.App. — Corpus Christi 1988, no pet.) (considering the standing issue sua sponte despite fact that State did not contest the issue before the trial court or on appeal in a case where defendant’s suppression motion was granted); see also, United States v. Caicedo-Llanos, 960 F.2d 158, 162-63 (D.C.Cir.1992) (declaring the personal nature of Fourth Amendment rights obligates the party asserting them to prove his rights were violated and may allow appellate consideration of questions of law, such as standing, which were neither pressed nor passed upon by the court below); United States v. Morales, 737 F.2d 761, 764 (8th Cir.1984) (finding government lost right to challenge standing issue by making inconsistent arguments at the suppression hearing and on appeal); United States v. Hultgren, 713 F.2d 79, 83 n. 6 (5th Cir.1983) (noting that standing is no longer considered a separate and distinct issue from a Fourth Amendment claim and that the issue might not be waived by the government for failure to assert it before the trial court); United States v. Hansen, 652 F.2d 1374 (10th Cir.1981) (allowing government to challenge standing issue for first time on appeal after defendant’s motion to suppress was granted).


declaring the personal nature of Fourth Amendment rights obligates the party asserting them to prove his rights were violated and may allow appellate consideration of questions of law, such as standing, which were neither pressed nor passed upon by the court below


finding government lost right to challenge standing issue by making inconsistent arguments at the suppression hearing and on appeal


noting that standing is no longer considered a separate and distinct issue from a Fourth Amendment claim and that the issue might not be waived by the government for failure to assert it before the trial court


allowing government to challenge standing issue for first time on appeal after defendant's motion to suppress was granted


Context: The bankruptcy court also correctly held that Olson is not entitled to be compensated from the estate to prosecute the state court appeal or to handle the dischargeability litigation. The clear weight of authority supports the proposition that reasonable compensation under SS 330(a)(1) for actual, necessary services means services that benefit the debtor's estate, not the debtor.

all decisions interpreting SS 330 of Bankruptcy Code carry over near-unanimous view that, as a matter of law, attorneys may recover from the estate only if their labors actually benefit the estate

See, e.g., Matter of Ryan, 82 B.R. 929, 931-32 (N.D.Ill.1987) (all decisions interpreting § 330 of Bankruptcy Code carry over near-unanimous view that, as a matter of law, attorneys may recover from the estate only if their labors actually benefit the estate); In re Taylor, 66 B.R. 390, 395 (Bankr.W.D.Pa.1986); In re Moore, 57 B.R. 270, 271 (Bankr.W.D.Okla.1986); Matter of Zweig, 35 B.R. 37, 38 (Bankr.N.D.Ga.1983); In re Rosen, 25 B.R. 81, 86 (Bankr.D.S.C. 1982); see also Matters of Jones, 665 F.2d 60 (5th Cir.1982) (per curiam) (Bankruptcy Act case) (fees related to defending against objections to discharge not payable from estate); In re Cleveland, 80 B.R. 204, 205 (Bankr.S.D.Cal.1987) (case law is well-settled that an attorney for a debtor in a chapter 7 case is Hot entitled to compensation out of the estate for services beneficial only to debtor; defense of non-discharge-ability action not compensable out of estate); but see In re Deihl, 80 B.R. 1, 2 (Bankr.D.Maine 1987) (debtor’s attorney entitled to compensation under § 330 for defense of dischargeability complaint).


debtor's attorney entitled to compensation under SS 330 for defense of dischargeability complaint


Context: The gravamen of plaintiff's claim is that the agents instituted and continued a criminal prosecution against him, an innocent person. However, neither New York nor the common law imposes liability upon even a private person for mere negligence in instituting or continuing a criminal prosecution for a crime which has actually occurred.

Howell v. Davis, 58 A.D.2d 852, 396 N.Y.S.2d 866, 867-68 (1977) (requirements of malicious prosecution or abuse of process cannot be bypassed by pleading prima facie tort), aff'd, 43 N.Y.2d 874, 403 N.Y.S.2d 496, 374 N.E.2d 393 (1978); see Benjamin, 554 F.Supp. at 86 (where innocent person is arrested on valid warrant naming him, action for malicious prosecution is only remedy available under New York law); cf. Feinberg v. Sak’s & Co., 83 A.D.2d 952, 443 N.Y.S.2d 26, 27 (1981) (analysis limited to false arrest and malicious prosecution); Lawrence v. Police Dept. of the City of Syracuse, 81 A.D.2d 1006, 440 N.Y.S.2d 105, aff'd, 55 N.Y.2d 737, 431 N.Y.S.2d 639, 431 N.E.2d 639 (1981); Rosario, 605 F.2d at 1248 (defendant’s liability based on knowledge of lack of probable cause); Boose, 421 N.Y.2d at 747 (action for malicious prosecution available to test error of arresting officer); see generally Broughton, 335 N.E.2d at 310 (distinguishing false arrest from malicious prosecution or abuse of process).


defendant's liability based on knowledge of lack of probable cause


action for malicious prosecution available to test error of arresting officer


Context: Courts in this district have reduced fee awards when time entries do not refer to the specific matter worked on; while "preparation for hearing" is a permissible time entry not subject to reduction because it refers to a specific event and allows for a determination of the reasonableness of time spent, "work on various items" and "work on documents" are too vague for a court to determine the reasonableness of time spent.

reducing award because "work on documents" and "work on various items" was too vague for the court to determine the reasonableness of time spent

Electro-Methods, 473 F.Supp.2d at 305-06 (reducing award because “work on documents” and “work on various items” was too vague for the court to determine the reasonableness of time spent); see also Rabin v. Wilson-Coker, 425 F.Supp.2d 269, 272-73 (D.Conn.2006) (reducing the number of hours by five percent because the billing records contained entries such as “work on brief,” even though most of the time entries were sufficiently detailed); Mr. & Mrs. B. v. Weston Bd. of Educ., 34 F.Supp.2d 777, 781 (D.Conn.1999) (“Entries stating such vague references as ‘review of file,’ ‘review of correspondence,’ ‘research,’ ‘conference with client,’ and ‘preparation of brief do not provide an adequate basis upon which to evaluate the reasonableness of the services and hours expended on a given matter.”).

reducing the number of hours by five percent because the billing records contained entries such as "work on brief," even though most of the time entries were sufficiently detailed


"Entries stating such vague references as 'review of file,' 'review of correspondence,' 'research,' 'conference with client,' and 'preparation of brief do not provide an adequate basis upon which to evaluate the reasonableness of the services and hours expended on a given matter."


Context: Nor does anything in the statute preclude the BIA from considering the effect that China's family planning policies may have on a couple's shared right to reproduce and raise children. Because Congress did not specifically address these issues, the statute is ambiguous. It therefore falls to the BIA to determine whether the harm an individual experiences when his or her spouse is subjected to a forced abortion or sterilization is sufficient to constitute persecution.

granting "Chevron deference to the Board's construction of the INA, which it ... administer[s]"

See, e.g., Kuhali, 266 F.3d at 102 (granting “Chevron deference to the Board’s construction of the INA, which it ... administer[s]”); cf. Sun Wen Chen, 491 F.3d at 107 (noting that the BIA “exercised its delegated gap-filling authority reasonably” when it recognized the harms an individual experiences as a result of the forced abortion or sterilization of his spouse).

noting that the BIA "exercised its delegated gap-filling authority reasonably" when it recognized the harms an individual experiences as a result of the forced abortion or sterilization of his spouse


Context: In sum, viewing as a whole the nature and effect of the suit, Plaintiff argues that the potential of the suit to impact the-Illinois populace writ large means that (1) Plaintiff is a real party in interest, (2) the Court thus need not look beyond the complaint to determine whether unnamed plaintiffs have a more significant stake in the outcome of the litigation, and (3) the Court lacks diversity jurisdiction under CAFA and should remand the case to state court.

holding that injured consumers for whom the State sought restitution were not real parties in the State's parens patriae suit

See Hunt Int’l, 481 F.Supp. at 74 (remanding an action in which the Attorney General sought injunctive and monetary relief despite the fact that unnamed defrauded residents also stood to benefit from the suit); see also Lann, 167 Ill.Dec. 252, 587 N.E.2d at 524 (holding that injured consumers for whom the State sought restitution were not real parties in the State’s parens patriae suit).