by
Guided by unambiguous statutory language in the Fair and Accurate Credit Transactions Act of 2003 (FACTA), 15 U.S.C. 1681c(g), that a receipt with a credit card expiration date does not raise a material risk of identity theft, and finding that the bare procedural violation alleged by plaintiff does not present a material risk of harm, the Second Circuit held that allegations in her amended complaint did not satisfy the injury‐in‐fact requirement necessary to establish Article III standing to bring suit. Accordingly, the court affirmed the district court's dismissal of the complaint based on lack of standing. View "Crupar-Weinmann v. Paris Baguette America, Inc." on Justia Law

Posted in: Consumer Law

by
Petitioner, convicted of attempted criminal contempt in the second degree and harassment in the second degree, petitioned for habeas relief under 28 U.S.C. 2254. Petitioner was sentenced to a one-year conditional discharge, with the condition that she abide by a two-year order of protection. The Second Circuit affirmed the district court's dismissal of the petition, holding that the order of protection did not place her "in custody" for purposes of section 2254(a). View "Vega v. Schneiderman" on Justia Law

by
Plaintiff filed suit against Lincoln, alleging violations of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227. The Second Circuit affirmed the district court's grant of summary judgment for Lincoln, holding that plaintiff did introduce sufficient evidence from which a jury could conclude that he revoked his consent, but that the TCPA does not permit a consumer to revoke its consent to be called when that consent forms part of a bargained‐for exchange. In this case, plaintiff's consent was not provided gratuitously, it was included as an express provision of a contract to lease an automobile from Lincoln. View "Reyes v. Lincoln Automotive Financial Services" on Justia Law

Posted in: Consumer Law, Contracts

by
When the U.S. Attorney has refused to make a Federal Rule of Criminal Procedure 35(b) motion for reasons that are not invidious or unrelated to a legitimate government concern, it is not the office of the court to weigh the equities or reassess the facts underlying the government's exercise of its discretion. In this case, the United States appealed an order and second amended judgment reducing defendant's amended judgment in 1999 following his conviction. The Second Circuit held that the district court exceeded the scope and nature of its inquiry and the findings the district court relied on were not sufficiently supported by the record. Here, defendant had committed perjury at his trial; in two other criminal cases he had submitted affidavits that the respective presiding judges found could not be credited; and, most relevantly, he had purported to cooperate with the government with regard to terrorism plans while instead actively misleading the government and affirmatively compromising the investigative efforts he caused it to undertake. View "United States v. Scarpa" on Justia Law

Posted in: Criminal Law

by
The Second Circuit held that, when applied, Section 5‐335 of the New York General Obligations Law prohibited Aetna's reduction of plaintiff's disability benefits. In this case, neither the Employee Retirement Income Security Act's, 29 U.S.C. 1001 et seq., preemptive force nor the Plan's choice of law provision compelled a different conclusion; and the court rejected Aetna's forfeiture argument. Therefore, the district court erred in granting Aetna's motion for summary judgment and denying plaintiff's motion for summary judgment in regard to plaintiff's entitlement to the past and ongoing benefits that Aetna has withheld on the ground that they are duplicative of plaintiff's personal injury settlement. Accordingly, the court reversed in part and remanded. View "Arnone v. Aetna Life Ins. Co." on Justia Law

by
MGM filed suit claiming that Special Act 15‐7 of the Connecticut General Assembly placed it at a competitive disadvantage in the state's gaming industry. The Act creates a special registration pathway for the state's two federally recognized Indian tribes to apply to build commercial casinos on non‐Indian land. The Second Circuit affirmed the district court's dismissal of the complaint, holding that any competitive harms imposed by the Act were too speculative to support Article III standing. In this case, MGM failed to allege any specific plans to develop a casino in Connecticut. View "MGM Resorts International Global Gaming Development, LLC v. Malloy" on Justia Law

by
Benjamin Ashmore appealed the district court's order dismissing him as the plaintiff in a whistleblower action under the Sarbanes-Oxley Act, 18 U.S.C. 1514A. Instead, the trustee of Ashmore's bankruptcy estate was substituted as plaintiff. The Second Circuit dismissed the appeal for lack of jurisdiction because the district court's dismissal of the case as to Ashmore and the substitution of the trustee as plaintiff were interlocutory orders that were not immediately appealable. The court vacated the temporary stay of the district court proceedings and denied Ashmore's pending motion to stay as moot. View "Ashmore v. CGI Group, Inc." on Justia Law

by
Plaintiff filed a securities class action alleging claims arising out of the Initial Public Offering (IPO) shares for Vivint Solar. The Second Circuit affirmed the district court's dismissal of the complaint, holding that the "extreme departure" test in Shaw v. Digital Equipment Corp., 82 F.3d 1194 (1st Cir. 1996), is not the law of this circuit and that Vivint's omissions were not material under the test set forth in DeMaria v. Andersen, 318 F.3d 170 (2d Cir. 19 2003), to which the court adhered. The court also held that Vivint did not mislead shareholders regarding the company's prospects in Hawaii. View "Stadnick v. Vivint Solar, Inc." on Justia Law

Posted in: Securities Law

by
Petitioner, a native and citizen of Grenada, sought review of the BIA's decision affirming the IJ's denial of his applications for cancellation of removal, asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The applications were denied based on petitioner's conviction under NYPL 220.31 for criminal sale of a controlled substance in the fifth degree. The Second Circuit held that NYPL 220.31 defines a single crime and is therefore an indivisible statute. Therefore, the BIA should have applied the categorical approach. Applying the categorical approach, the court held that petitioner's conviction did not constitute a commission of an aggravated felony and consequently did not bar him from seeking cancellation of removal and asylum. The court held that it lacked jurisdiction to consider the remainder of the petition. Accordingly, the court granted the petition in part, vacated the BIA's rulings in part, and remanded. View "Harbin v. Sessions" on Justia Law

by
After petitioner committed a drug crime but before his crime was adjudicated, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 8 U.S.C. 1101(a)(13)(C)(v). At issue was whether the statute can be given effect with respect to petitioner's crime, even though he committed the crime before the statute's passage. The Second Circuit held that the presumption against retroactive legislation barred such an application because the plain text of the statute attaches legal consequences at the time a lawful permanent resident commits a crime, rather than at the time of conviction. Accordingly, the court granted the petition for review, vacated the BIA's order of removal, and remanded for further proceedings. View "Centurion v. Sessions" on Justia Law