Schlam Stone & Dolan LLP

Eastern District Roundup

Eastern District Roundup is a monthly column published in the New York Law Journal summarizing notable decisions in the United States District Court for the Eastern District of New York.  Harvey Stone and Richard Dolan, assisted by Bennette Kramer, write the column, which the Firm has authored since 1989.

Revisiting Drug Sentencing, Determining Amount in Controversy

January 2012:  In the U.S. District Court for the Eastern District of New York. Judge Arthur D. Spatt granted an evidentiary hearing in response to defendant's motion to reduce his sentence based on a recent amendment to the Sentencing Guidelines; Judge Eric N. Vitaliano upheld a financial penalty imposed on plaintiff for failing to respond to a government request that he provide information about his unlicensed trip to Cuba; Judge Joanna Seybert, dismissing a diversity action, found that limitations on attorney fees under applicable law prevented plaintiff from meeting the $75,000 "amount in controversy" requirement; and Judge Joseph F. Bianco held that a debtor's filing of a Chapter 7 case did not stay an action against him and his company by the Secretary of Labor to enforce minimum wage and overtime regulations.

Worker Claims Yield Rulings On Service and Insurance Notice

December 2011:  In the U.S. District Court for the Eastern District of New York, Judge Joanna Seybert held that, where both parties failed to perform under a confidentiality agreement, neither could prevail in claiming a breach by the other; Judge Roslynn R. Mauskopf found that plaintiff had not properly served defendant under the Foreign Sovereign Immunities Act; Judge Arthur D. Spatt denied a mother's §1983 claims relating to a search of her son by a school security guard; and Judge Spatt also ruled that a contractor forfeited its right to insurance coverage by undue delay in notifying its insurer of an occurrence.

Ineffective Assistance, Title VII, Motion to Suppress, Fraud Allegations

November 2011:  In the U.S. District Court for the Eastern District of New York, Judge Joanna Seybert granted a §2255 petition based on ineffective assistance of counsel at sentencing; Judge Nicholas G. Garaufis suppressed evidence found on a car passenger where the government failed to show 'reasonable suspicion' to justify the vehicle stop; in denying a motion to dismiss, Judge Seybert decided a variety of issues relating to alleged constructive and actual fraud against a plaintiff bank; and Judge Roslynn R. Mauskopf upheld Title VII claims against a motion to dismiss.

Discovery, Arbitration, Bullying, Child Custody

September 2011:  In the U.S. District Court for the Eastern District of New York, Judge Kiyo A. Matsumoto ordered the government to turn over to defendant a 1992 homicide file prepared by the New York City Police Department; Judge Jack B. Weinstein dismissed claims against New York City and other defendants related to alleged peer classroom bullying at a public school; Magistrate Judge Joan M. Azrack rejected a father's petition seeking return of his child to Romania under the Hague Convention; and Judge Arthur D. Spatt denied a motion by defendant, a collection agency, to compel arbitration of plaintiffs' claims under the Fair Debt Collection Practices Act.

Sentencing on 'Illegal Re-Entry,' Restitution, Respondeat Superior

August 2011:  In the U.S. District Court for the Eastern District of New York, Judge Eric N. Vitaliano discussed reasons for imposing a below-Guidelines sentence in an 'illegal re-entry' case; Judge Nicholas G. Garaufis (a) found that the government, seeking restitution in a securities fraud case, had failed three times to connect the victims' losses to defendant's offense and (b) gave suggestions on how to proceed in its fourth and final attempt; Judge Frederic Block granted a defendant hospital's motion for summary judgment in a suit brought by an employee alleging age discrimination; and Judge Jack B. Weinstein discussed vicarious liability, under respondeat superior, for a private entity based on conduct of an employee acting as a certified peace officer.

Defining 'Robbery' in Insurance Policy Leads to Reminder on Clarity

July 2011:  In the U.S. District Court for the Eastern District of New York, Magistrate Judge Vicktor V. Pohorelsky granted motions by defendant Saudi Arabian Airlines in a race discrimination case to strike both immaterial matter in the complaint and plaintiffs' jury demand; Judge Jack B. Weinstein held that an insurance policy's definition of 'robbery' included theft by tricks; Judge Eric N. Vitaliano denied plaintiffs' due process and equal protection claims against the Board of Elections for rejecting her petition to be placed on a primary ballot for City Council; and Judge Weinstein commented on the dangers defendant possibly faced following the U.S. Court of Appeals for the Second Circuit's reversal of his conviction on one of three counts.

Ineffective Assistance, Injunction, Remand in Patent Case, False Arrest

June 2011:  In the U.S. District Court for the Eastern District of New York, Judge Nicholas G. Garaufis held that defense counsel's failure to give notice of alibi witnesses amounted to ineffective assistance of counsel, warranting habeas relief; Judge Eric N. Vitaliano granted a preliminary injunction prohibiting the National Park Service and other defendants from acting pursuant to improper revisions to the boundary map for a park on the Brooklyn waterfront; Judge Leonard D. Wexler remanded to state court an action involving a licensing agreement for patented technology; and Judge Jack B. Weinstein dealt with summary judgment motions in connection with 'excessive force' claims against a security officer.

Disqualification of Counsel, School Bullying, Jurisdiction

May 2011:  In the U.S. District Court for the Eastern District of New York, Judge Brian M. Cogan disqualified a lawyer in a criminal case; Judge Jack B. Weinstein denied, in part, defendant Board of Education's motion for summary judgment in a suit involving allegations of bullying at a public school; and Judge Cogan found that the presence of non-diverse defendants deprived the court of subject matter jurisdiction.

Municipal Liability Under Section 1983, Two Rulings on RICO Claims

April 2011:  In the U.S. District Court for the Eastern District of New York, Judge Thomas C. Platt dealt with plaintiffs' claims of municipal liability pursuant to 42 U.S.C. §1983 in connection with fatal injuries to a Latino male at the hands of police officers; Judge Arthur D. Spatt rejected a variety of claims by defendants in a civil suit following their federal conviction for holding workers in servitude; Judge Spatt also upheld a RICO complaint against a Rule 9(b) challenge; And Judge Nicholas G. Garaufis dismissed RICO claims as "extraterritorial."

Murder Charges Against Juvenile, Defamation, Insurance, Section 1983

March 2011:  In the U.S. District Court for the Eastern District of New York, Judge Joseph F. Bianco granted the government's motion to prosecute a juvenile defendant in district court as an adult; Judge Sterling Johnson Jr. declined to dismiss certain defamation claims against former Yankee pitcher Roger Clemens; Judge Eric N. Vitaliano granted partial summary judgment to plaintiff in a suit against an insurer for 'business interruption' losses; and Judge Bianco ruled on motions to dismiss §1983 and related claims resulting from plaintiff's incarceration in Nassau County on attempted rape charges and his subsequent exoneration.

Sentencing, Cell Phone Records, Rule 11 Sanctions, Bankruptcy

February 2011:  In the U.S. District Court for the Eastern District of New York, Judge Jack B. Weinstein, constrained to sentence defendant to a mandatory five-year minimum imprisonment, granted a continuation of bail pending the scheduled date of defendant's selfsurrender to the designated place of incarceration; Magistrate Judge James Orenstein denied a government application for information kept by cell phone providers; Judge Joanna Seybert imposed sanctions for bad-faith litigation; and Judge Arthur D. Spatt denied a motion for leave to file an interlocutory appeal from a bankruptcy court decision.

Attorney Disqualification, Injuries To Seaman, Claims By LLC Co-owner

December 2010:  In the U.S. District Court for the Eastern District of New York, Judge Denis R. Hurley granted an attorney disqualification motion; Judge Arthur D. Spatt dismissed claims by an LLC member as derivative, with leave to replead; Judge Jack B. Weinstein found that plaintiff, an injured seaman, had raised sufficient issues of fact to defeat summary judgment in a Jones Act case; and Judge Spatt affirmed a decision by the bankruptcy court to deny recovery of assets from the debtor's family.

Fraud Case Prompts Sentencing Guidelines Critique

November 2010:  In the U.S. District Court for the Eastern District of New York, Judge John Gleeson used a particular case to illustrate why the U.S. Sentencing Guidelines for fraud cases often do not, and in reality cannot, capture all the nuances relevant to a just result; Judge Raymond J. Dearie granted a preliminary injunction against the commissioners of the New York State Board of Elections; Judge Sandra L. Townes declined to compel arbitration of Truth in Lending Act claims; and Judge Joanna C. Seybert granted, in part, plaintiff's motion for a preliminary injunction regarding the impoundment of his vehicle pending a forfeiture proceeding.

Depraved Indifference, Montreal Convention, Civil And Criminal Cases

October 2010:  In the U.S. District Court for the Eastern District of New York, Judge Arthur D. Spatt vacated a Nassau County conviction for 'depraved indifference' murder; Judge Brian M. Cogan held that Fed. R. Civ. P. 69(a) did not incorporate a state law requirement that plaintiffs start a new action to seek a turnover order to enforce a judgment; Judge Jack B. Weinstein explained the reasons for defendant's 16-month sentence, including why the offense level should be based on only 50 grams of cocaine; Judge John Gleeson found the Montreal Convention applicable to plaintiff's claims of injury caused by personnel at the Frankfurt Airport; and Judge Joanna Seybert remanded to state court a cause of action under the Investment Advisors Act of 1940.

Cases Spotlight Ineffective Assistance Claim, Basis For Disqualification

September 2010:  In the U.S. District Court for the Eastern District of New York, Judge Jack B. Weinstein granted a habeas petition based on ineffective assistance of trial counsel; Judge Nina Gershon imposed sanctions against Arab Bank for improperly persisting in its refusal to produce account information relating to the bank's alleged facilitation of terrorism; and Judge Arthur D. Spatt granted a motion to disqualify defendants' attorney because of confidential knowledge he had acquired from his relationship with plaintiff.

Bargaining And Legal Fees In Union Cases, Succeeding ACORN

August 2010:  In the U.S. District Court for the Eastern District of New York, Judge Frederic Block granted interim relief, pursuant to 29 USC §160(j), pending the adjudication of an unfair labor practices complaint; Judge Arthur D. Spatt permitted another organization to succeed ACORN in a Nassau County fair housing suit; Judge Brian M. Cogan held, with respect to defendants' agreement to pay plaintiffs' legal fees, that plaintiffs' union could not ethically receive more than its own fees and costs for work done by its staff counsel on plaintiffs' behalf, unless payments went to a separate legal fund; and Judge Block rejected the government's jurisdictional defenses under the Federal Tort Claims Act.

Court Allows Discovery To Develop Equitable Tolling, Estoppel Claims

June 2010:  In the U.S. District Court for the Eastern District of New York, Judge Raymond J. Dearie felt constrained to deny remission of bail, despite the hardship on defendant's parents as sureties; Judge Brian M. Cogan relied on the Federal Sovereign Immunities Act to dismiss claims against Germany; Magistrate Judge Cheryl L. Pollak granted plaintiffs limited discovery to develop their claims of equitable estoppel and equitable tolling of the statute of limitations; and Judge David G. Trager affirmed a jury's award of $150 million in non-economic damages.

New Trial Granted In §1983 Action, Bankruptcy Court Stay Of State Case

May 2010:  In the U.S. District Court for the Eastern District of New York, Judge Frederic Block rejected retaliation and hostile work environment claims by two nursing professors at Medgar Evers College; Judge Arthur D. Spatt granted plaintiff's Rule 59 motion for a new trial in a §1983 action against Suffolk County; Judge Joanna Seybert affirmed a bankruptcy court order enjoining a contempt action against nondebtor third parties; And Judge Nicholas G. Garaufis held that the U.S. Citizenship and Immigration Services may not bar an otherwise proper status adjustment application solely because the applicant neglected to sign the check she had submitted for the filing fee.

Rare Bill Of Attainder Issue, Mootness Of Bankruptcy Appeal

April 2010:  In the U.S. District Court for the Eastern District of New York, Judge Nina Gershon permanently enjoined the defunding of ACORN as a Bill of Attainder; Judge Jack B. Weinstein held that the Adam Walsh Act's requirement of electronic monitoring was unconstitutional as applied to a particular defendant now awaiting trial on charges of receipt and possession of child pornography; Judge Dora L. Irizarry ordered that a personal money judgment of $3.16 million be imposed against defendant following his conviction for cocaine offenses; and Judge Arthur D. Spatt dismissed a bankruptcy appeal as moot.

False Arrest And Retaliation Claims Move Forward

March 2010:  In the U.S. District Court for the Eastern District of New York, Judge Arthur D. Spatt granted in part, and denied in part, defendants' motion for summary judgment in a §1983 action challenging the propriety of plaintiff's arrest; Judge Raymond J. Dearie, dismissing a complaint against Mount Sinai Hospital, held that the Church Amendment gave no private right of action to a nurse who refused to participate in abortion procedures; Judge Denis R. Hurley held that New York State, but not the City, was entitled to mandatory victim restitution in connection with defendant's conviction for selling unstamped cigarettes for resale outside the reservation; and Judge Joseph F. Bianco declined to dismiss a complaint alleging gender discrimination, hostile work environment and retaliation.

Rates For Attorney's Fees, Sentence For Securities Fraud

February 2010:  In the U.S. District Court for the Eastern District of New York, Judge Frederic Block reinstated an award of $179,722.50 in attorney's fees on remand from the U.S. Court of Appeals for the Second Circuit; Judge Jack B. Weinstein discussed the reasons for a sentence more lenient than the guidelines range; Judge Nicholas G. Garaufis denied motions to intervene as un-timely; and Judge Eric N. Vitaliano decided a variety of insurance disclaimer issues in the context of summary judgment motions

State Court Conviction Vacated, Class Certification Denied

December 2009:  In the U.S. District Court for the Eastern District of New York, Judge Joanna Seybert vacated a state conviction on grounds of ineffective assistance of counsel and the admission of irrelevant, prejudicial evidence; Judge Nina Gershon granted a motion by defendant, a college president, for entry of judgment against herself in the amount of nine dollars without a concession of liability regarding plaintiffs' First Amendment claims; Judge Jack B. Weinstein declined to certify a class of persons who had bought defendants' prepaid calling cards; and Judge Arthur D. Spatt made various rulings in denying a motion to dismiss.

Search Warrant For Email Account Fails, Denial of Oral Settlement

November 2009:  In the U.S. District Court for the Eastern District of New York, Judge Frederic Block granted a motion to suppress based on an overly broad search warrant; Judge Kiyo A. Matsumoto declined to enforce an oral settlement agreement; and Judge Sandra L. Townes denied a motion for an interlocutory appeal of certain Bankruptcy Court orders.

Evidence, Custody And Hague Convention, Abortion Opponents Denied Intervention

October 2009:  In the U.S. District Court for the Eastern District of New York Judge Nicholas G. Garaufis found that certain uncharged 'similar act' evidence offered by the prosecution was not admissible; Judge Frederic Block denied a petition under the Hague Con-vention seeking the return of a young child to Ecuador; Judge Edward R. Korman denied intervention by anti-abortion groups in an action involving increased access to an emergency oral contraceptive; and Judge Jack B. Weinstein rejected equal protection, malicious prosecution and false arrest claims.

Sentencing, Hiring Procedures, Disgorgement

August 2009:  In the U.S. District Court for the Eastern District of New York Judge, Dora L. Irizarry granted a motion for acquittal on money laundering charges; Judge Nicholas G. Garaufis found a Title VII violation in the hiring procedures of the New York City Fire Department; Magistrate Judge Roanne L. Mann rejected defendant's constitutional challenge to a sentence imposing a fine greater than the collateral forfeiture amount in lieu of an appearance; Judge Frederic Block disagreed with plaintiffs as to the 'relation back' date of an amended complaint; and Judge Arthur D. Spatt ordered disgorgement from Relief Defendants who, though not directly ac-cused of wrongdoing, had received ill-gotten funds from defendants without consideration.

Labor Law, Search Warrants, Restitution, Discrimination Claims

July 2009:  In the U.S. District Court for the Eastern District of New York, Judge Leonard D. Wexler rejected a constitutional challenge to New York's statutory restrictions on who may conduct boiler inspections; Judge Frederic Block analyzed particularity and overbreadth issues in denying a motion to suppress evidence seized pursuant to a search warrant; Judge Jack B. Weinstein discussed restitution in criminal cases and specifically focused on how to deal with restitution for a 'victim' who had profited from the charged crimes and his own cooperation; and Judge Roslynn R. Mauskopf dealt with claims of hostile work environment and disparate impact under Title VII.

Section 1983 Action, Immigration Issues, Motion To Enjoin The Press

June 2009:  In the U.S. District Court for the Eastern District of New York, Judge John Gleeson denied a motion to dismiss a §1983 action alleging a false arrest, Judge Eric N. Vitaliano held that the court lacked subject matter jurisdiction to compel the granting of an immigrant visa; Judge Vitaliano also dismissed a com-plaint seeking relief from an immigration court's final order of removal; and Judge Arthur D. Spatt denied a defendant's motion to enjoin the issuance of mug shots, 'perp walk' photos and press releases, and to hold a hearing on violation of grand jury secrecy.

Right To Association, Speedy Trial, Montreal Pact, Quantum Meruit

May 2009:  In the U.S. District Court for the Eastern District of New York, Judge Joanna Seybert rejected a defense of claim preclusion flowing from a prior settlement in a similar case; Judge Arthur D. Spatt denied summary judgment motions by two police officers asserting qualified immunity as a defense to §1983 claims resulting from a fatal shooting; in another case, involving a gun license revocation, Judge Spatt dismissed §1983 claims based on the First Amendment; and Judge Eric N. Vitaliano rejected an insurer's argument to disclaim coverage where it accepted premiums after knowing of the alleged basis for cancellation.

Claim Preclusion, §1983 Claims, Attempt To Disclaim Coverage

April 2009:  In the U.S. District Court for the Eastern District of New York, Judge Jack B. Weinstein rejected the government's application to impose certain restrictive conditions on defendant during service of his sentence; Judge Joseph F. Bianco dismissed an indictment under the Speedy Trial Act, but without prejudice to reindictment; Judge Nicholas G. Garaufis denied British Airways' motion to dismiss a putative class action against it for reckless baggage handling; and Judge Dora L. Irizarry dealt with claims of quantum meruit and unfair competition in denying defendant's summary judgment motion in a suit by a poultry distributor against a poultry dealer.

Racketeering, Vehicle Dealer Act, Retaliation, Prejudgment Attachment

February 2009:  In the U.S. District Court for the Eastern District of New York, Judge Jack B. Weinstein dismissed three of the racketeering acts in an alleged RICO con-spiracy; Judge Arthur D. Spatt dismissed various claims by a GMC dealership against General Motors arising from the failure to help plaintiff acquire a Buick and/or Pontiac dealership; Judge Frederic Block reduced a jury's punitive damages award after a verdict finding retaliation for a sex discrimination claim; and Judge Eric N. Vitaliano dealt with claims for a prejudgment attachment and a preliminary in-junction in a civil RICO case.

On Admission Of Uncharged Acts, Torture And International Law

January 2009:  In the U.S. District Court for the Eastern District of New York, Judge Dora L. Irizarry, ruling on several in limine motions by the prosecution to admit proof of uncharged acts, excluded evidence of defendant's role in a murder; Judge David G. Trager granted a habeas petition claiming ineffective assistance of counsel; Judge Brian M. Cogan dismissed Aliens Tort Claims Act (ATCA) and Torture Victims Protection Act (TVPA) claims alleging torture; Judge Arthur D. Spatt, citing the 'ministerial exception,' declined to adjudicate the claims of a rabbi contesting the decision to fire her; and Judge Jack B. Weinstein allowed defendants in a criminal case to use FBI reports to attack the credibility of hearsay declarants heard on a tape.

On Duty To Protect Inmate, Stay of Discovery, Price Fixing

December 2008:  In the U.S. District Court for the Eastern District of New York, Judge John Gleeson upheld a complaint by an inmate against prison personnel for their alleged fault in not protecting him from an attack,. Judge Joanna Seybert ruled that plaintiff was not entitled to have a federal three-judge panel review his exclusion from an election to the state Senate, Magistrate Judge Joan M. Azrack stayed discovery in a civil case because of a related criminal investigation, Judge Charles P. Sifton granted a request under the Hague Convention to return petitioner's child to England, Judge Arthur D. Spatt held that overpaid salary is not a 'debt' under the Fair Debt Collection Practices Act, and, in an antitrust case, Judge David G. Trager denied a motion to dismiss by Chinese exporters who argued that, in setting prices, they acted under compulsion from their government.

Post Mortem Mutilation Details Improper In Sentencing

November 2008:  In the U.S. District Court for the Eastern District of New York, Judge Jack B. Weinstein ruled that evidence of post-mortem dismemberment would be inadmissible during the sentencing phase of a death-penalty case, Judge Arthur D. Spatt found no exceptional circumstances warranting bail pending appeal for a defendant convicted of a violent crime, Judge Eric N. Vitaliano declined to enforce a Nevada judgment against an entity that was not a party in the original proceedings, Judge Spatt held that ERISA preemption did not apply to plaintiff's claim for breach of contract and Judge Frederic Block denied the U.S. Attorney's motion for a stay of discovery in a civil suit by the SEC against the same defendants charged in a pending criminal case.

Crediting Defendant's Words Over Those of DEA Agents

October 2008:  In the U.S. District Court for the Eastern District of New York, Judge Nicholas G. Garaufis credited defendant's testimony over that of two government agents after a hearing on a motion to suppress evidence; Judge David G. Trager dismissed a variety of claims and counterclaims alleging trademark infringement and related state law violations; and Judge Arthur D. Spatt rejected defendant's request for certification of an interlocutory appeal relating to personal jurisdiction under ERISA.

A Forfeiture of a House Used in Mistreatment of Servants

September 2008:  In the U.S. District Court for the Eastern District of New York, Judge Frederic Block held that a widow's claims linking two FBI agents to an informant's murder of her husband could not withstand summary judgment motions; Judge Arthur D. Spatt ordered the forfeiture of a house used by a husband and wife in criminally mistreating their servants; and Judge Raymond J. Dearie declined to dismiss a prisoner's claims that he was assaulted by corrections officers and denied timely medical treatment.

On Expert Testimony About False Confessions

July 2008:  In the U.S. District Court for the Eastern District of New York, Judge Edward R. Korman declined to grant a habeas corpus petition challenging the preclusion of expert testimony about false confessions; Judge Brian M. Cogan saw no reason to grant plaintiff jurisdictional discovery to save its complaint from dismissal; and Judge Eric N. Vitaliano dealt with arguments by insurance companies disclaiming aspects of liability in the wake of a gold theft.

On Ineffective Assistance, Child Abduction Remedies Act

June 2008:  In the U.S. District Court for the Eastern District of New York, Judge John Gleeson granted a habeas petition based on ineffectiveness of appellate counsel; Judge Arthur D. Spatt held that plaintiff was not bound by an oral agreement with the government in settlement of his personal injury claims; Judge Eric N. Vitaliano denied a father's petition under the Hague Convention to return his son to Colombia; and Judge Dora L. Irizarry rejected a Sixth Amendment challenge to the certification of business records under 18 U.S.C. §3505.

Special Child Porn Case, Declaring Firearms at Airports

May 2008:  In the U.S. District Court for the Eastern District of New York, Judge Jack B. Weinstein held that the failure to inform the jury of a mandatory minimum sentence violated defendant's Sixth Amendment rights under the special circumstances of this child pornography case; Judge Brian M. Cogan granted the Port Authority's motion for summary judgment as to §1983 claims by plaintiffs who encountered problems after declaring their firearms to ticket agents at New York airports; Judge Charles P. Sifton ruled that a plea to aggravated identity theft should be withdrawn for lack of scienter; Judge David G. Trager found that a claimant against Delta Airlines did not receive sufficient notice of the bar date for filing claims in Delta's bankruptcy to discharge his claim; and Judge Dora L. Irizarry granted a union's petition for enforcement of an arbitration award against the Long Island Railroad Company.

On 'Related' Matters, Remedial Desegregation Order

April 2008:  In the U.S. District Court for the Eastern District of New York, in the U.S. District Court for the Eastern District of New York Judge Nicholas G. Garaufis held that, under evolving circumstances, a 'substantial saving of judicial resources' was not likely to result from his keeping a case, even though he had properly accepted it as a 'related' matter; Judge Jack B. Weinstein terminated a 1974 remedial desegregation order where no vestiges remained of the original constitutional violation; Judge John Gleeson conditionally certified a class under the Fair Labor Standards Act and certified a class under Rule 23(a) to pursue state law claims; Judge Arthur D. Spatt applied a 2 percent discount rate in reducing damages for future pain and suffering to present value.

Late Notices of Appeal, Custody Slowing Access to Counsel

February 2008:  In the U.S. District Court for the Eastern District of New York, Judge Joseph F. Bianco granted habeas relief based on ineffective assistance of counsel; in a child pornography case, Judge Joan M. Azrack rejected defendant's claim that the government's conditions regarding access to a copy of his computer hard drive were unconstitutional; and Judge Arthur D. Spatt allowed plaintiff to amend its complaint to include a demand for punitive damages where plaintiff's tort claims, though arising from breach of an employment contract, were independent of that contract.

On Ineffective Assistance, Disclosure Under Walsh Act

January 2008:  In the U.S. District Court for the Eastern District of New York, Judge Denis R. Hurley allowed a party to file a very late notice of appeal under Fed. R. App. P. 4(a)(6), where counsel had not received e-mail notice from the clerk's office of the relevant order and judgment; Judge Frederic Block invalidated a U.S. Department of Housing and Urban Development (HUD) regulation; Judge Nicholas G. Garaufis denied a habeas petition complaining that restrictive conditions of confinement excessively interfered with access to counsel; and Magistrate Judge Viktor V. Pohorelsky dealt with the journalist's privilege in connection with surveillance of post-Sept. 11 detainees and their lawyers.

On Pen/Trap Statute, Fee Agreements, Maritime Claims

December 2007:  In the U.S. District Court for the Eastern District of New York, Magistrate Judge Joan M. Azrack prohibited the government from using a pen register to obtain post-cut-through dialed digits; Judge Arthur D. Spatt set fees for former counsel in a personal injury action involving a car accident, and directed that those fees be paid by the clients; Judge Spatt also apportioned liability and assessed damages in a maritime collision; and Judge Denis R. Hurley rejected defendants' jurisdictional argument under the Rooker-Feldman doctrine, but found plaintiff's claim to be barred in any event by res judicata.

State Law Claims Not Preempted by Montreal Convention

November 2007:  In the U.S. District Court for the Eastern District of New York, Judge Raymond J. Dearie found that plaintiffs' state law claims against an air carrier were not preempted by the Montreal Convention, Judge Nicholas G. Garaufis found the fugitive disentitlement doctrine to apply in a forfeiture cas, and Judge Frederic Block reversed a decision by a company's plan administrator to deny a claim for disability benefits.

On Extortionate Debt Collection, Denial of Arbitration

September 2007:  In the U.S. District Court for the Eastern District of New York, Judge Eric N. Vitaliano dismissed criminal charges alleging extortionate debt collection as based on conduct not covered by the statute, Judge Nicholas G. Garaufis dismissed two criminal contempt counts in an indictment against an attorney, Judge Frederic Block held that a Macy's employee had not 'silently' acquiesced in an agreement to arbitrate her harassment and retaliation claims, and Judge Raymond J. Dearie granted disability benefits to a law firm employee under an insurance plan, contrary to the denial of her claim by the insurance company.

Physical Abuse Factor Added to Death Penalty Notice

August 2007:  In the U.S. District Court for the Eastern District of New York, Judge Jack B. Weinstein allowed the government to amend its death penalty notice by adding a statutory aggravating factor relating to serious physical abuse of the victim, Judge Raymond J. Dearie denied the New York City Transit Authority's motion for summary judgment with respect to hostile work environment claims by an Indian national, Judge Brian M. Cogan gave plaintiff one last chance to effect service of the complaint on defendant in Chile, and Judge Weinstein denied summary judgment to both sides in Zyprexa litigation involving alleged overpayment by plaintiffs.

Prior Crimes Collaterally Estop Defendants' Civil Case

July 2007:  In the U.S. District Court for the Eastern District of New York, Judge Arthur D. Spatt found that, in light of their prior criminal convictions, defendants in a civil case were collaterally estopped from pursuing their third-party claims. Judge Spatt also upheld a parolee's §1983 complaint alleging retaliation by his New York parole officer. And Judge John Gleeson invalidated an enhanced sentence imposed under New York's discretionary persistent felony offender statute.

Novel Issues Regarding the Trafficking Victims Protection Act

June 2007:  In the U.S. District Court for the Eastern District of New York, Judge Allyne R. Ross decided novel issues regarding the Trafficking Victims Protection Act.  Judge Arthur D. Spatt denied a motion for a mandatory preliminary injunction requiring a school district to allow a deaf student to bring his service dog to school.  And Judge Dora L. Irizarry granted class action certification to foreign seafarers asserting wage claims against U.S. registered vessels.

Uncorrected Errors in Pre-sentence and Criminal-history Reports

May 2007:  In the U.S. District Court for the Eastern District of New York, Judge Fredric Block upheld a complaint seeking damages and an injunction relating to uncorrected errors in pre-sentence and criminal-history reports.  Judge Arthur D. Spatt found deficiencies in a debt-collection letter because it could suggest that the right to request validation is outweighed by the demand for payment.  Chief Judge Raymond J. Dearie dismissed a property owner's indemnity claim against an insurance company in the wake of a construction accident.  And Judge Spatt dismissed, on jurisdictional grounds, discrimination claims that had essentially been litigated before the NYSDHA.

Tax Injunction Act Bars Suing N.Y. Tax Appeals Division

April 2007:  In the U.S. District Court for the Eastern District of New York Judge Raymond J. Dearie ordered a change of venue under 28 USC §1404.  Judge Arthur D. Spatt held that the Tax Injunction Act barred a suit against the New York Division of Tax Appeals. Magistrate Judge James Orenstein wrote an extensive Report and Recommendation dealing with attorney's fees in the Swiss Bank Holocaust litigation.  And Judge Frederic Block identified various issues for trial, including coverage under an accident insurance policy following a severe, and ultimately fatal, brain injury.

On 'Bivens' Action, Chuka Sticks, Notice of Failure

March 2007:  In the U.S. District Court for the Eastern District of New York Judge Raymond J. Dearie found that a plaintiff in a Bivens action against Bureau of Prisons officials had shown seemingly valid reasons for delays in pressing his administrative remedies.  Judge Arthur D. Spatt held that New York's criminal ban on chuka sticks did not violate a martial arts expert's First Amendment rights.  Judge Dearie found that a bank's untimely filings in a federal forfeiture proceeding against mortgaged property deprived the bank of standing to assert its interest.  And Judge I. Leo Glasser found a proposed class action settlement involving Time Warner to be defective in various respects and unfair.

State Murder Indictment Versus FBI Agent Stays in State

February 2007: In the U.S. District Court for the Eastern District of New York, Judge Frederic Block saw no basis for the removal to federal court of a state murder indictment against an FBI agent. Judge Raymond J. Dearie denied defendant law firm's motion for summary judgment under the Fair Debt Collection Practices Act. Judge Dearie also decided issues involving federal instrumentality immunity in an employment discrimination case against the Federal Reserve Bank of New York. And Judge Arthur D. Spatt denied the application of a nonparty intervenor to proceed on appeal in forma pauperis.

Answer Amended: Difference in Damages Unacceptable

December 2006: In the U.S. District Court for the Eastern District of New York, Judge David A. Trager allowed a defendant to amend her answer to include an affirmative defense that the alleged thousand-fold discrepancy between damages prescribed under the Copyright Act and actual damages would be constitutionally unacceptable. Judge I. Leo Glasser denied a collateral challenge to a pre-Booker sentence of incarceration, even though the record suggested that, without the mandatory Sentencing Guidelines, petitioner would have received a lesser sentence. Judge Frederic Block assigned pecuniary and nonpecuniary damages under the Death on the High Seas Act. Judge Dennis R. Hurley, citing the Rooker-Feldman doctrine and res judicata, barred a challenge to the foreclosure of property.And Judge Arthur D. Spatt dismissed a complaint under the Federal Tort Claims Act for failure to meet the 'presentment' requirement.

Claims Upheld in Arrest When Stroke Confused With DWI

November 2006: In the U.S. District Court for the Eastern District of New York, Judge Arthur D. Spatt declined to dismiss plaintiff's § 1983 claims relating to his arrest for driving while intoxicated when he was actually having a stroke. Judge Frederic Block dealt with a range of issues relating to seniority benefits for minorities hired as custodians by the Board of Education. And in an age discrimination case, Judge Spatt denied a motion by defendant, as the prevailing party, to require plaintiff to pay the costs of the trial transcript and several deposition transcripts.

University Made to Recognize All-Male (No-Females) Frat

September 2006: In the U.S. District Court for the Eastern District of New York. Judge Dora L. Irizarry, relying on plaintiffs' right to intimate association, granted a preliminary injunction requiring defendant university to recognize an all-male fraternity despite the exclusion of females. Judge Nicolas G. Garaufis disqualified a law firm from representing a defendant in a death-penalty case where counsel had once represented a key witness regarding the same charged arson and murder. And Judge Arthur D. Spatt declined to dismiss Rehabilitation Act claims by a woman seeking handicapped-accessible housing.

Should State Drug Offenses Be Termed 'Serious' for Federal Cases?

August 2006: In the U.S. District Court for the Eastern District of New York,. In deciding whether prior state drug convictions should be counted as 'serious' offenses for purposes of federal sentencing enhancements under the Armed Career Criminal Act, Judge David G. Trager looked to recent ameliorative changes in New York law rather than to the harsher laws in effect at the time of defendant's state court convictions. Chief Judge Edward R. Korman denied an application for attorney's fees in a medical malpractice case that had settled for $2.4 million. Judge I. Leo Glasser, rejecting as frivolous plaintiff's claim under the Fair Debt Collection Practices Act, awarded attorney's fees to defendant. And Judge Arthur D. Spatt held that plaintiff, as a member of defendant limited liability corporation (LLC), lacked standing to bring a Racketeer Influenced and Corrupt Organizations Act (RICO) suit based on injuries suffered by reason of his interest in the LLC.

Hostile Work Place, Sexual Harassment Claims Held Insufficient

July 2006: In the U.S. District Court for the Eastern District of New York, Judge I. Leo Glasser held that plaintiff's claims of hostile work environment and retaliation for her complaints about sexual harassment were insufficient to withstand a motion for summary judgment. In another decision, Judge Jack B. Weinstein gave claimants in a quasi-class action a 40-day deadline to submit properly documented claim forms where the delay was preventing other claimants from receiving escrowed funds under the terms of a settlement. Judge Arthur D. Spatt exercised jurisdiction under the All Writs Act to prevent improper interference with a court-appointed monitor whose term had expired. And Judge Joanna Seybert held that a company's severance policy and supplemental executive retirement plan were subject to Employee Retirement Income Security Act (ERISA).

Professional Clam Diggers Can't Challenge Residency Requirement

June 2006: In the U.S. District Court for the Eastern District of New York. Judge Arthur D. Spatt held that several professional clam diggers had no standing to challenge the town of Oyster Bay's one-year residency requirement for a permit. In another case Judge Spatt held that the court had personal jurisdiction over a Swedish corporation through the activities of its subsidiary in managing an online gambling Web site. Judge I. Leo Glasser denied summary judgment on a probationary teacher's § 1983 claims for retaliatory discharge and related state law claims. Magistrate Judge Joan M. Azrack dismissed an age discrimination complaint against New York City Off-Track Betting Corp. (OTB). And Judge Spatt declined to dismiss Title VII claims against the Episcopal Diocese of Long Island and the Church of the Advent.

Continuance Balances Interests in Untimely Death-Penalty Notice

May 2006: In the U.S. District Court for the Eastern District of New York. Judge Nicholas G. Garaufis declined to grant collateral relief to a petitioner complaining that his guilty plea was invalid in light of his lawyer's conflicting interests. Judge Frederic Block held that, under all the circumstances, the proper remedy for the government's untimely death penalty notice was to adjourn the trial date. Judge David G. Trager imposed damages and legal fees on bankruptcy petition preparers for deceptive practices. Judge I. Leo Glasser granted summary judgment on liability against the government in a medical malpractice case. And Judge Denis R. Hurley denied a hospital's motion for summary judgment in a retaliatory discharge/whistleblower action brought by a food inspector.

Complex State Laws on Depraved-Indifference Murder Interpreted

April 2006: In the U.S. District Court for the Eastern District of New York. Judge Frederic Block interpreted complex and somewhat-elusive areas of state law relating to depraved-indifference murder before denying a habeas petition while granting a certificate of appealability. Magistrate Judge Viktor V. Pohorelsky granted discovery beyond the administrative record in favor of plaintiffs challenging the Food and Drug Administration's (FDA) refusal to give over-the-counter approval for the morning-after pill. Judge Denis R. Hurley found several fatal deficiencies in a Racketeer Influenced and Corrupt Organizations Act (RICO) complaint. And Judge David G. Trager rejected an attorney disqualification motion which seemed more tactical than substantive.

Claims Based On Rendition To Syria, Alleged Torture Dismissed

March 2006: In the U.S. District Court for the Eastern District of New York. Judge Frederic Block interpreted complex and somewhat-elusive areas of state law relating to depraved-indifference murder before denying a habeas petition while granting a certificate of appealability. Magistrate Judge Viktor V. Pohorelsky granted discovery beyond the administrative record in favor of plaintiffs challenging the Food and Drug Administration's (FDA) refusal to give over-the-counter approval for the morning-after pill. Judge Denis R. Hurley found several fatal deficiencies in a Racketeer Influenced and Corrupt Organizations Act (RICO) complaint. And Judge David G. Trager rejected an attorney disqualification motion which seemed more tactical than substantive.

Ex-Inmate's Civil Rights Claim Dismissed in 'Slip, Fall' in Bathroom

January 2006: In the U.S. District Court for the Eastern District of New York. Judge David G. Trager saw no constitutional violation in a state trial court's failure to give a missing witness charge in a manslaughter trial. Judge I. Leo Glasser dismissed civil rights claims by a former Riker's Island inmate relating to a 'slip and fall' in a flooded prison bathroom. Judge Arthur D. Spatt granted a motion for class certification in a suit against the Village of Belle Terre for the conduct of its officials in enforcing traffic laws. And Magistrate Judge Joan M. Azrack found no duty on the part of the Post Office to warn a courier not to jump onto a loading dock.

Guilty Plea, Sentence Vacated Because of 'Affirmative Misadvice'

December 2005: In the U.S. District Court for the Eastern District of New York, Judge Arthur D. Spatt vacated a guilty plea and sentence because petitioner had received 'affirmative misadvice' that deportation was merely a 'possible' consequence of the plea. In others: Judge I. Leo Glasser dismissed a Title VI claim against CUNY by an undergraduate who was allegedly barred from her French class and exam. Judge Raymond J. Dearie excluded speculative and unreliable opinions by plaintiffs' expert witness, who drew a link between Similac and juvenile diabetes; and Magistrate Judge Joan M. Azrack recommended a damages award for a violation of the Cable Communications Policy Act against restaurateurs who, without authorization, showed a pay-per-view boxing match to their patrons.

Motion Denied in Class Action Against 'Light'-Cigarette Makers

November 2005: In the U.S. District Court for the Eastern District of New York, Judge Jack B. Weinstein denied defendants' motion for summary judgment, based on the Racketeer Influenced and Corrupt Organizations Act (RICO) statute of limitations, in a class action against manufacturers of 'light' cigarettes. Judge Frederic Block, in a declaratory judgment action by Boeing involving the crash of an EgyptAir flight near Nantucket, Mass., held that the court had jurisdiction over an Egyptian insurance company under the Federal Sovereign Immunities Act. Judge David G. Trager dismissed a suit over a contract with a forum selection clause conferring jurisdiction in the Philippines. And Judge Arthur D. Spatt disqualified plaintiffs' expert witness, an attorney/engineer, because he had previously represented defendant in numerous lawsuits.

Questioning Right After Flight Called Custodial, 'Miranda' Required

September 2005: In the U.S. District Court for the Eastern District of New York, Judge David G. Trager upheld the Second Department's system for assignment of appellate panels. Judge Sandra L. Townes saw no merit to a doctor's claim that a hospital where he worked had discriminated against him as an Orthodox Jew. Magistrate Judge Joan M. Azrack, suppressing statements by a defendant accused of sexual misconduct on an airplane, held that the interrogation of defendant immediately after the flight was 'custodial' and therefore required Miranda warnings.

Unduly Suggestive Eyewitness Identification

August 2005: In the U.S. District Court for the Eastern District of New York, Judge Arthur D. Spatt, granting a petition for habeas corpus, found the eyewitness identification was unduly suggestive. Judge David G. Trager denied a motion to dismiss a Racketeer Influenced and Corrupt Organizations Act (RICO) claim in connection with the renovation of the Metropolitan Transportation Authority's (MTA) new headquarters, and Judge Spatt denied a Nassau County hospital's claim of immunity under the Eleventh Amendment.

Defamation Claims Dismissed Against Port Director at JFK Airport

May 2005: In the U.S. District Court for the Eastern District of New York. Judge Frederic Block, denying a habeas petition asserting a Batson claim, focused on defense counsel's failure at trial to develop his argument that the prosecutor's peremptory challenges were race-based. Judge Arthur D. Spatt saw no violation of the Cable Act in Cablevision's new system for assigning slots on public access channels. And Judge Sandra L. Townes dismissed defamation claims against the port director at John F. Kennedy International Airport.

Union Barred From Drywall Work Unless Specs Require 'Skimcoat'

April 2005: In the U.S. District Court for the Eastern District of New York, in resentencing a defendant, Judge Charles P. Sifton reduced the original term of incarceration by 60 months--and discussed the weight to be given the U.S. Sentencing Commission Guidelines in light of the Supreme Court's recent decision in United States v. Booker, 125 SCt 738 (2005). Judge John Gleeson imposed an injunction on Local 530 of the Operative Plasters' and Cement Masons' International Association, AFL-CIO, following 25 years of corruption and contempt, barring the union from performing drywall work in New York City without clear specifications requiring a "skimcoat." Judge David G. Trager denied an insurer's motion for summary judgment in an action alleging breach of an insurance contract.

Habeas Corpus Writ Denied to Alien Detained After Removal Order

March 2005: In the U.S. District Court for the Eastern District of New York. Judge David G. Trager declined to grant a writ of habeas corpus to an alien detained for years after an order of removal. Judge Arthur D. Spatt dismissed as moot a § 2255 challenge to the expired sentence of a deported alien. Judge Nina Gershon dismissed Racketeer Influenced and Corrupt Organizations Act (RICO) claims for failure adequately to allege mail and wire fraud or a pattern of RICO activity. And Magistrate Judge Joan M. Azrack denied the government's motion to bar production of plaintiff's post-accident statements until after his deposition.

'AMW Materials':  Town, Fire Company Not Liable as 'Operators'

January 2005: In the U.S. District Court for the Eastern District of New York, Judge Arthur D. Spatt dealt with a variety of issues under the Comprehensive Environmental Release, Compensation and Liability Act (CERCLA). Judge Raymond J. Dearie found no liability on the part of an out-of-possession owner with respect to an accident inside an apartment building. Judge Charles P. Sifton held that plaintiff's discharge from Father Flanagan's Boys' Home was not discriminatory. And Judge Spatt awarded benefits to plaintiff in light of her successful claims of retaliation and hostile work environment.

Dismissal of § 1981 Equal Benefit Claim Denied

December 2004: In the U.S. District Court for the Eastern District of New York, Judge Arthur D. Spatt dealt with a variety of issues under the Comprehensive Environmental Release, Compensation and Liability Act (CERCLA). Judge Raymond J. Dearie found no liability on the part of an out-of-possession owner with respect to an accident inside an apartment building. Judge Charles P. Sifton held that plaintiff's discharge from Father Flanagan's Boys' Home was not discriminatory. And Judge Spatt awarded benefits to plaintiff in light of her successful claims of retaliation and hostile work environment.

Article 18-B, Abstention, Hiring and Discrimination, Pleadings

October 2004: In the U.S. District Court for the Eastern District of New York. Judge Joanna Seybert denied Nassau County's motion to dismiss a claim that Article 18-B fees are so low as to violate substantive due process rights of attorneys representing indigent criminal defendants. Judge Raymond J. Dearie abstained under the Younger doctrine from deciding a case involving control of a religious corporation because of related state court proceedings. Judge David G. Trager dismissed the racial discrimination claims of someone who failed to be hired as a police officer. And Judge Frederic Block dealt with a variety of constitutional claims by an MTA employee terminated for failure to provide a urine sample.

Disability Insurance and Other Benefits

September 2004: In the U.S. District Court for the Eastern District of New York, in the five cases discussed below, Eastern District judges reversed decisions by the commissioner of Social Security denying disability insurance and other benefits. Judge David G. Trager awarded benefits to a claimant suffering from disabling depression. Judge Arthur D. Spatt remanded a case involving a claim for widow's benefits where the marriage ended with the wage-earner's death after only two months. Judge Jack B. Weinstein held that claimant's depression arising from his desire to be a woman had made him disabled before his insured status ended. Judge Frederic Block and Judge Raymond J. Dearie each remanded cases because the administrative law judge had not adequately developed the record.

Sentencing Guidelines, Enhancements, Employment Discrimination

August 2004: In the U.S. District Court for the Eastern District of New York, Judge Jack B. Weinstein reimposed a second non-incarceratory sentence, on remand from the U.S. Court of Appeals for the Second Circuit and commented extensively on both federal sentencing practice after Blakely and the historical role of courts and juries in sentencing. In another case, Judge Weinstein ordered a post-plea jury trial on disputed sentencing enhancements, prompting defense counsel to concede that the enhancements applied. And Judge Arthur D. Spatt denied motions to dismiss employment discrimination claims made by a Coptic Christian woman.

Lead Poisoning, Ineffective Counsel, Definite Complaint Statement

July 2004: In the U.S. District Court for the Eastern District of New York, Judge Raymond J. Dearie found that the acts of Department of Health agents in dealing with elevated lead levels in an apartment did not deprive New York City of immunity from tort liability. Judge David G. Trager saw no basis to fault a defense attorney for failing to argue at sentencing that the government's decision to withhold a § 5K1.1 letter was made in bad faith. Judge Arthur D. Spatt held that plaintiff adequately pleaded a § 1985 conspiracy. Judge Spatt also denied a motion for a more definite statement of patent and copyright claims.

Public Nuisance, Plain View, Representation of Minors, Insurance

June 2004: In an extensive decision dealing with issues of preclusion and public nuisance, U.S. District Court for the Eastern District of New York Judge Jack B. Weinstein declined to dismiss a suit by New York City against companies in the gun industry. Judge Nicholas G. Garaufis, rejecting an argument of governmental "waiver", applied the "plain view" doctrine in declining to suppress evidence seized during a "sweep" of a warehouse. Judge David G. Trager denied appointment of counsel to a minor seeking, with no substantial basis, to enjoin the deportation of her father. And Judge Raymond J. Dearie held, in a discrimination case, that the obligation of an insured to give notice to its carrier was not triggered by the insured's receipt of an EEOC Notice of Charge.

Agent Orange, Establishment Clause and Education Law

April 2004: In the U.S. District Court for the Eastern District of New York, Judge Jack B. Weinstein held that the government contractor defense bar recent claims by Vietnam veterans against manufacturers of Agent Orange. Judge Charles P. Sifton held that the Department of Education guidelines for holiday displays in public schools do not violate the Establishment Clause. And Judge Arthur D. Spatt declined to dismiss claims against Nassau County under the Individuals With Disabilities Education Act.

Holocaust Victims, Medical Care in Prison, Attorney's Fees

March 2004: In the U.S. District Court for the Eastern District of New York, in a decision relating to the $1.25 billion settlement between the Swiss banks and Holocaust victims, Chief Judge Edward R. Korman excoriated the banks for persistently denying the extent of their misconduct during and after the war, and resisting the effort to open up all relevant records. Judge Arthur D. Spatt dismissed a Bivens suit alleging inadequate medical care in prison. Judge Raymond J. Dearie applied the "discretionary function exception" defense to liability under the Federal Tort Claims Act. Judge David G. Trager remanded a collection action involving consideration of HUD regulations. And Judge John Gleeson awarded attorneys' fees exceeding $220 million in a class action.

On Inaffective Assistance of Counsel, 'State Actor' Under § 1983

February 2004: In the U.S. District Court for the Eastern District of New York, two decisions granted writs of habeas corpus for ineffective assistance of trial counsel in state court criminal proceedings. One, by Judge Frederic Block, dealt with counsel's inexplicable failure to use a police officer's complaint report in cross-examining a robbery victim. The other, by Judge Jack B. Weinstein, cited counsel's failure to call expert witnesses to rebut claims of sodomy and sex abuse. Judge Arthur D. Spatt held that a particular attorney was not a "state actor" under § 1983. In another case Judge Spatt took steps to impose restrictions on a vexatious litigant.

Preemption of State Tort Claims, Preclusion of Psychiatric Evidence

January 2004: In the U.S. District Court for the Eastern District of New York, Judge Frederic Block dealt with an issue undecided by the U.S. Court of Appeals for the Second Circuit: Whether federal drug laws preempt state tort claims. Amid another slew of decisions ruling on habeas petitions challenging state court convictions, Judge Jack B. Weinstein granted the writ in a case where petitioner's expert psychiatric testimony had been erroneously precluded. And Judge Nina Gershon declined to dismiss shareholder claims alleging violations of the Williams Act's "Best Price" provision.

On 'No Knowledge' and § 78ff(a), Civil Aspects of Child Abduction

December 2003: In the U.S. District Court for the Eastern District of New York, Judge Nina Gershon concluded that defendants' guilty plea to willful securities fraud foreclosed any sentencing benefit from the "no knowledge" provision of 15 USC § 78ff(a). Judge David G. Trager held that New York, not Israel, was a child's "habitual residence" for purposes of the Hague Convention on child abduction. And Judge Jack B. Weinstein granted a habeas petition where the trial judge had erroneously declined to give a "justification" charge in a homicide case, and the defense lawyers' citation of the wrong cases to support the charge amounted to "ineffective assistance.'

On an Attorney's Prior Representation of a Cooperating Witness

November 2003: In the U.S. District Court for the Eastern District of New York, Judge Nicholas G. Garaufis held that an attorney's prior representation of a cooperating witness precluded his representation of a defendant at trial, despite defendant's claims that there would be no need for the attorney to cross-examine the witness if he testified. Judge David G. Trager denied defendant's motion for summary judgment with respect to plaintiff's claims that she, as an African-American, had been the victim of racial discrimination by other African-Americans at a State University of New York (SUNY) agency. In another case Judge Trager, though denying a habeas petition, disagreed with respondent's strict interpretation of the "relation back" doctrine in applying the statute of limitations. And Judge Jack B. Weinstein issued a 14-inch stack of decisions ruling on habeas challenges to state court convictions.

On Ineffective Assistance of Counsel, SEC's Overreaching

September 2003: In the U.S. District Court for the Eastern District of New York, amid a slew of newly issued decisions by Judge Jack B. Weinstein denying habeas corpus relief to petitioners challenging state convictions, Judge Weinstein granted the writ in two cases where the record showed ineffective assistance of counsel–in one case, for failing to call an important witness; in another, for failing to use medical evidence as impeachment. In a decision critical of the Securities and Exchange Commission's (SEC) overreaching, Judge Thomas C. Platt granted the SEC's motion for damages, but limited the recovery to one dollar.

Class Action Cannot Be Prevented by Paying Plaintiff in Full

August 2003: In the U.S. District Court for the Eastern District of New York, in one case, Judge David G. Trager precluded a defendant from heading off a class action by offering to pay the named plaintiff in full before the class could be certified. In another, Judge I. Leo Glasser rejected plaintiff's assertion that his claim challenging his demotion did not accrue until he later applied for pension benefits. Judge Arthur D. Spatt, on still another case, saw no constitutional problem regarding a state judge's imposition of consecutive sentences for murder, robbery and assault committed during an intrusion into a Long Island home. Finally, Judge Trager also held that plaintiff was estopped from asserting Rehabilitation Act claims for a period when he had received Social Security disability

Naturalization Denied War Vet Lacking 'Good Moral Character'

July 2003: In the U.S. District Court for the Eastern District of New York. Judge Frederic Block affirmed an INS order turning down naturalization to a wartime veteran who failed to show "good moral character," and Judge Raymond Dearie granted a writ of habeas corpus to a petitioner who had been held too long in INS detention following an order of removal.

On Processing Habeas Petitions, Modifying Consent Decrees

June 2003: In the U.S. District Court for the Eastern District of New York, Judge Jack B. Weinstein, who has just received hundreds of § 2254 habeas petitions, discussed the general need for more expedited processing to comply with statutory directives. Judge I. Leo Glasser found no basis to modify a consent decree against a defendant in the carting industry, despite alleged "changed circumstances" in the form of improved competition. And Judge David G. Trager declined to apply the doctrine of forum non conveniens with respect to claims by Italian exporters against a New York defendant.

On Ineffective Assistance of Counsel, Gender Discrimination

May 2003: In the U.S. District Court for the Eastern District of New York, Judge Jack B. Weinstein granted collateral relief to a defendant whose trial lawyer, by neglecting to investigate the crime scene, missed opportunities to rebut the District Attorney's case. Judge I. Leo Glasser held that equal protection and § 1983 claims against the parks commissioner for converting a cemetery into a recreation area were some 64 years out of time. And Judge David G. Trager applied recently relaxed pleading standards to a Title VII complaint.

On Plaintiff's Use of a Pseudonym, the 'Innocent Owner' Defense

April 2003: In the U.S. District Court for the Eastern District of New York, Judge Edward R. Korman allowed plaintiff to use a pseudonym in suing a blood-testing center after she contracted hepatitis B. In a civil forfeiture action, Judge I. Leo Glasser rejected the "innocent owner" defense of a woman whose building was apparently used by her son to facilitate drug trafficking. And Judge Raymond J. Dearie found no basis to conclude that MetLife had engaged in gender discrimination or retaliation.

On Bail Forfeiture, Insurance Firm as Proceeds Stakeholder

March 2003: In the U.S. District Court for the Eastern District of New York, Judge I. Leo Glasser discussed the factors that might cause the court to reconsider a forfeiture of bail. In another case, Judge Glasser awarded attorney's fees to an insurance company as stakeholder of life insurance proceeds. And Judge Raymond J. Dearie remanded a case involving Supplemental Security Income benefits for reconsideration under recently effective Final Rules applicable to disabled children.

Removal to U.S. Court of Homicide Case Against DEA Special Agent

February 2003: In the U.S. District Court for the Eastern District of New York. Judge Nicholas G. Garaufis removed to federal court a Kings County homicide prosecution of a DEA Special Agent. Judge David G. Trager held that a defendant vessel owner was not liable for a longshoreman's injuries in unloading cargo. Judge I. Leo Glasser dealt with the timeliness of claims against two defendants in the same case where the EEOC issued right-to-sue letters on different dates as to each defendant. And Judge Arthur D. Spatt held that a 7-Eleven store's destruction of a surveillance video after authorities responded to a robbery report did not amount to a Brady violation.

Appellate Attorney's Fees, Proffer Agreements and Pretrial Releases

January 2003: In the U.S. District Court for the Eastern District of New York. Judge Arthur D. Spatt held that an application for appellate attorney's fees in a Title VII case did not have to be made within 14 days of final judgment, but could be made within a "reasonable" period. Judge Jack B. Weinstein denied defendant's motion to invalidate part of a proffer agreement which would allow the government to use, for rebuttal purposes at a criminal trial, defendant's statements at a proffer session. In addition, Judge I. Leo Glasser, expressing a measure of regret, declined to expunge the records of a misdemeanor conviction, which posed a bar to defendant's employment. And Magistrate Judge Cheryl L. Pollak denied pretrial release to the acting boss of the Gambino family, even though he was not charged with direct participation in a crime of violence.

On Blanket Denial of Post-Sept. 11 'Bible Studies' at Public Housing

December 2002: In the U.S. District Court for the Eastern District of New York, Judge David G. Trager granted injunctive relief to a resident of a public housing development who challenged the New York City Housing Authority's blanket denial of her request to conduct post-Sept. 11 "Bible studies/grief counseling" sessions at the development's community center. Judge Thomas C. Platt dealt with res judicata and collateral estoppel issues in the context of a claim that the Town of Southampton, by freezing land-use applications, had "taken" private property without compensation. And Judge I. Leo Glasser found that, under the circumstances, defendants' 14-month delay in reporting a claim against them to their insurer did not violate the policy's "notice" provision.

Judge Favors Airline When Captain Handles Passenger Misbehavior

November 2002: In the U.S. District Court for the Eastern District of New York, Judge David G. Trager rejected plaintiff's claims against an airline for removing him from a plane after a flight attendant complained about his behavior to the captain. Judge Arthur D. Spatt held that a jury could reasonably find that an off-duty Lynbrook Detective, a defendant in a § 1983 action, was acting 'under color of state law.' And Judge Reena Raggi dismissed claims of racial discrimination in the handling of a disciplinary complaint against a lawyer.

On Sexual Harassment, Fair Debt Collection Act, Illegal Re-Entry

September 2002: In the U.S. District Court for the Eastern District of New York, in a sexual harassment case involving the Nassau County Medical Center, Judge Thomas C. Platt held that the EEOC's early issuance of a right-to-sue letter (i.e., before the 180-day period had expired) should not prevent the court from hearing Title VII claims. Judge Arthur D. Spatt found that a complaint stated a viable claim against a law firm under the Fair Debt Collection Practices Act. Finally, in dismissing an indictment for illegal re-entry after deportation, Judge Jack B. Weinstein suggested requirements to improve the immigration bar.

Pro Se Collateral Attacks On State Court Convictions

August 2002: In the U.S. District Court for the Eastern District of New York, in a sexual harassment case involving the Nassau County Medical Center, Judge Thomas C. Platt held that the EEOC's early issuance of a right-to-sue letter (i.e., before the 180-day period had expired) should not prevent the court from hearing Title VII claims. Judge Arthur D. Spatt found that a complaint stated a viable claim against a law firm under the Fair Debt Collection Practices Act. Finally, in dismissing an indictment for illegal re-entry after deportation, Judge Jack B. Weinstein suggested requirements to improve the immigration bar.

On Grand Jury Subpoenas, Attorney's Fees, Sexual Harassment

July 2002: This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York covering areas that include the following: grand jury subpoenas, attorney's fees, sexual harassment and maritime law and limitation of liability.

On 3622(A)(3) Release For Medical Treatment

May 2002: This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York.

On Insurance Law And Timely Notice, The Eighth Amendment

April 2002: This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York.

On Collateral Estoppel, Discrimination In Law School Admissions

March 2002: This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York. Subject matter included: collateral estoppel, discrimination in law school admissions, attorney's fees and substantive due process.

On Attorney Disqualification, Rule 37(C)(1), Internal Investigations

January 2002: This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York on Attorney Disqualification, Rule 37(c)(1), Internal Investigations.

On Zoning Resolutions, Witness Availability and Choice of Law

December 2001: This column reports on several recent representative decisions in the U.S. District Court for the Eastern District of New York covering issues that included the following: constitutionality of zoning resolutions, unavailability of a witness and choice of law.

On Sentencing Guidelines, Jurisdiction and Discrimination

November 2001: This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York; the cases covered issues as follows: sentencing guidelines, acquitted conduct; jurisdiction, state antitrust claims with patent issues; and discrimination, failure to accommodate.

On Deportation, Title VII and Religious Discrimination

September 2001: This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York; issues covered include: deportation, Title VII and religious discrimination.

Key Holdings Involve Hostile Work Environments, Expert's Fees

August 2001: This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York; topics include: hostile work environments, expert's fees and fair debt collection practices.

On Peremptory Challenges, Rehabilitation, Psychological Testing

July 2001: This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York; topics include the following: peremptory challenges, the Social Options Rehabilitation Service program, compelled psychological testing and pension-plan withdrawal liability.

On Enhanced Sentences, Search And Seizure, The Sherman Act

June 2001: This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York; issues covered include: enhanced sentences, search and seizure, the Sherman Act and forum selection.

From Resource Conservation And Recovery Act To Proffer Agreements

April 2001: This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York; the first involves the Resource Conservation and Recovery Act of 1976

From Consular Relations To The Uniformed Services Employment Act

March 2001: This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York; the opinions include a decision related to consular relations and one on a First Amenement issue.

Case Law: Americans With Disabilities Act, Gender Discrimination

February 2001: This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York; among the topics covered were Americans with disabilities, gender discrimination, and child abduction.

On Private Rights Of Action, Post-Arrest Silences And Title VII

January 2001: This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York; among the topics covered were private rights of action and post arrest silence.

On Discovery In Foreign Tribunals And Ira Beneficiary Designation

December 2000: This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York; the major issues addressed include discovery by foreign tribunals and the designation of beneficiaries of an IRA.

Section 1983 – Exemption From Immunization

November 2000: This column reports on a significant decisions handed down recently in the U.S. District Court for the Eastern District of New York; at issue was the balance between religious freedom and certain public health matters; in another matter the court examined prisoners' rights.

On Conflicts Of Interest, Unsealing Indictments, Derivative Actions

October 2000: This column reports on a significant decisions handed down recently in the U.S. District Court for the Eastern District of New York; at issue were conflicts of interest, unsealing indictments and derivative actions.

Issues: Hostile Work Environment And Franchisor Liability

August 2000: This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York, including those on the following topics: hostile work environment, franchisor liability and trademark and copyright law.

Cases: RICO Liability Of Tobacco Firms, Bail Reform Act

July 2000: This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York, including those on: the RICO Liability of tobacco companies; a petitioner's 2241 motion to vacate his arson conviction. The judge said the petitioner should not be entitled to circumvent his waiver of direct appeal by collaterally challenging his conviction; a motion by the United States to dismiss a tax refund claim pending further discovery to allow plaintiff to prove that his employer had actually withheld income tax from his wages; and the grant of the government's motion to revoke a pretrial release order, because the judge found that no conditions of release contemplated by the Bail Reform Act would reasonably assure the safety of other persons and the community.

Arbitration Waiver, Preclusion Of Defense Testimony, Double Jeopardy

June 2000: This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York. Issues covered include the following: waiver of arbitration, preclusion of defense testimony, double jeopardy, and the Copyright Act.

Eyewitness Id's, Transfer, Preliminary Injunctions, The Disabilities Act

May 2000: This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York; issues covered include eyewitness identifications, transfer and preliminary injunctions.

'U.S. V. Bruder': Three Police Officers And The Louima Incident

April 2000: The U.S. District Court for the Eastern District of New York recently handed down several significant, representative decisions including those covering issues such as: prior uncharged acts; the Longshore and Harbor Workers' Compensation Act; an antitrust class action settlement; and the statute of frauds.

The Tax Injunction Act And Other Matters

March 2000: This column reports on significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York addressing cases in tax law.

Erasure Of Tapes; Discriminatory Motive

January 2000: This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York including a matter that turned on the way one party in a civil action handled material that could have provided important evidence.

Federal Bar Council News

Legal Developments:  Limits on "Enemy Combatant" Designation

September/October/November 2007: Bennette Deacy Kramer reviews a Fourth Circuit decision in Al-Marri v. Wright: An alien residing legally in the United States is not an "enemy combatant" and is therefore entitled to all constitutional protections.

In The Courts: "Enemy Combatants" and Due Process

September/October/November 2006: Bennette Deacy Kramer discusses cases that involve due process afforded to American citizens detained by the United States military as enemy combatants

In the Supreme Court: Justice Alito's First Opinion

June/July/August 2006: Bennette Deacy Kramer reviews Justice Alito's first opinion, which surprised many Court observers because it vacated a murder conviction

Legal Developments: Out-Of-State Wines Win

September/October/November 2005: Bennette Deacy Kramer reviews a Supreme Court decision that struck down statutes in Michigan and New York prohibiting or restricting out-of-state shipments of wine for individual in-state use

FBC News:  Federal Sentencing After Booker

June 2005: Bennette Deacy Kramer reviews Supreme Court decisions holding that the Sixth Amendment applied to the Federal Sentencing Guidelines and rendered the mandatory Federal Sentencing Guidelines unconstitutional

Decisions:  Judicial Review of Espionage Agreements

April 2005: Bennette Deacy Kramer reviews a unanimous Supreme Court decision reversing the Ninth Circuit in Tenet v. Doe

Enemy Combatants:  Due Process And Detainees

October 2004: Bennette Deacy Kramer discusses Supreme Court decisions affecting the judicial status of enemy combatants

Developments:  Appellate Decision In Padilla v. Rumsfeld

February 2004: Bennette Deacy Kramer tells the stories of three judges whose experience clerking for others shaped the way they treat their own clerks

Second Circuit Decisions:  Judicial Conflicts of Interest

December 2003: Bennette Deacy Kramer reports on two cases in which stock ownership by a judge raised questions about recusal

Enemy Combatants:  Habeas Corpus Rights Of Detainees

June 2003: Bennette Deacy Kramer compares and contrasts two court decisions that address the due process rights of enemy combatants

Careers:  From Law To Movie Making

December 2002: Bennette Deacy Kramer reports on a lawyer who has embarked on a second career as a film producer

In Delaware:  The Tyson Merger

October 2001: Bennette Deacy Kramer discusses the Delaware court decision that reshaped the food industry along with legal thinking in M&A matters

Judicial Sanctions:  The Saga Of Judge McBryde

April 2000: Bennette Deacy Kramer explores the controversy that has raged for years around one Texas judge

Judicial History:  Judges' Clerks As Judges

February 2000: Bennette Deacy Kramer tells the stories of three judges whose experience clerking for others shaped the way they treat their own clerks

Other Publications

Advances for Officers' Litigation Expenses in NY

New York Law Journal, January 2011: David J. Katz examines how New York courts have begun following Delaware's lead with respect to advancement and indemnification of officers' and directors' legal expenses.

Proxy Access End Run?

Corporate Secretary, April 2008: Thomas A. Kissane shows why an effort by the SEC to clarify a rule governing placement of shareholders' board nominations on proxy statements has neither reduced uncertainty nor curtailed the urge by some exercised parties to advance their positions via litigation.

Lawyers' Bookshelf:  DisneyWar

New York Law Journal, June 2005: Jeffrey M. Eilender reviews the story of Michael Eisner's rise and fall at Disney, as much a tale of litigation as it is of that talented, flawed, and controversial executive.

Lawyers' Bookshelf:  Vanishing Point

New York Law Journal, December 2004: Jeffrey M. Eilender reviews a biography that focuses on the last days of Judge Joseph Force Crater, a New York Supreme Court Justice who vanished from a Manhattan street one night in August 1930, and whose fate was never discovered.