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Constitution petitioned for review of the Department's decision denying its application for certification pursuant to Section 401 of the Federal Water Pollution Control Act, more commonly known as the Clean Water Act (CWA), 33 U.S.C. 1341. Constitution sought certification that its proposed interstate natural gas pipeline would comply with New York State water quality standards. NYSDEC denied the application on the ground that Constitution had not provided sufficient information. The Second Circuit held that, to the extent Constitution challenged the timeliness of the NYSDEC decision, the petition was dismissed for lack of jurisdiction. On the merits, the court held that NYSDEC's actions were within its statutory authority and that its decision was not arbitrary or capricious. The court deferred to NYSDEC's expertise as to the significance of the information requested from Constitution, given the record evidence supporting the relevance of that information to NYSDEC's certification determination. Accordingly, the court denied the petition for review. View "Constitution Pipeline Co. v. New York Sate Department of Environmental Conservation" on Justia Law

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The United States appealed the district court's order precluding the government from introducing at trial certain testimony by a co-defendant turned government witness on the basis of the common-interest rule of attorney-client privilege. The Second Circuit reversed the judgment of the district court, finding nothing in the circumstances in this case to support the application of the privilege. Here, the excluded statements were not made to, in the presence of, or within the hearing of an attorney for any of the common-interest parties; nor did the excluded statements seek the advice of, or communicate advice previously given by, an attorney for any of the common-interest parties; nor were the excluded statements made for the purpose of communicating with such an attorney. View "United States v. Krug" on Justia Law

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Plaintiff filed a putative class action alleging that Uber engaged in illegal price fixing. After the district court denied Uber's motion to compel arbitration, holding that plaintiff did not have reasonably conspicuous notice of and did not unambiguously manifest assent to Uber's Terms of Service when he registered. The Second Circuit vacated the district court's judgment, holding that the Uber App provided reasonably conspicuous notice of the Terms of Service as a matter of California law, and plaintiff's assent to arbitration was unambiguous in light of the objectively reasonable notice of the terms. The court remanded to the district court to consider whether defendants have waived their rights to arbitration and for any further proceedings. View "Meyer v. Uber Technologies, Inc." on Justia Law

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Morrone participates in a ʺdefined benefit planʺ offered by the Pension Fund. From 1970-1996, Morrone earned benefits under the Plan; in 1997, he stopped working union jobs. Under the Plan, a participant is entitled to the accrual rates ʺin effect at the time [he] ultimately separates from Covered Employment.ʺ In 1994, the Plan was amended to allow a worker who took a hiatus to bridge the gap by working five years. In 1999, the Plan removed the Five Year Rule and reinstated the Parity Rule, under which a worker with a break in Covered Employment of two or more years could bridge that gap and reactivate pension credits earned pre-hiatus by working for at least as many years after the break as the length of the break. Morrone returned to Covered Employment in 2012 and requested an estimate of the benefits he would receive should he retire in 2017. The estimate applied the Parity Rule: Pension credits that he earned pre-hiatus were assigned the 1996 rate; those earned since 2012 were valued at the current rate. Because Morrone had taken a 15‐year hiatus and would have returned to Covered Employment for only six years as of 2017, he was not entitled to the current accrual rate for his pre-hiatus pension credits. Applying the Five Year Rule would give Morrone an extra $705 per month. The Second Circuit affirmed summary judgment, in favor of the Fund, finding that the 1999 Amendment did not decrease Morroneʹs accrued benefits in violation of ERISAʹs anti‐cutback rule, 29 U.S.C. 1054(g). The higher benefit accrual rates that Morrone demands are not a ʺretirement‐type subsidyʺ but would constitute his normal retirement benefit if he satisfied the conditions to receiving them: the Parity Rule. View "Morrone v. Pension Fund of Local Number One, I.A.T.S.E." on Justia Law

Posted in: ERISA

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In 2015, Swain was fired from his job with Hermès managing the company’s New Jersey boutique at the Mall at Short Hills. Swain, a New Jersey resident, sued Hermès in New Jersey state court, asserting claims under New Jersey state law for discrimination and hostile work environment on the basis of sexual orientation, retaliation, and breach of contract. Swain named Hermès, and Bautista, who worked with Swain at the Short Hills Hermès store, as defendants. Asserting federal jurisdiction based on diversity of citizenship, Hermès filed a petition in federal district court to compel arbitration under Federal Arbitration Act section 4, naming Swain as the only respondent and citing a dispute resolution protocol that he had allegedly signed. The Second Circuit affirmed, in favor of Hermès. Swain did not contest the arbitrability of his dispute or that Swain and Hermès were citizens of different states. The court rejected Swain’s argument that it should “look through” the petition to the underlying dispute, as defined in Swain’s New Jersey lawsuit, and conclude that complete diversity is lacking because Swain and Bautista, who is adverse to Swain in his state court litigation in New Jersey, are both citizens of that state. View "Hermès of Paris, Inc. v. Swain" on Justia Law

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Vera sued the Republic of Cuba for the extrajudicial killing of his father in 1976. In 2008, Vera obtained a default judgment against Cuba in Florida state court, relying on the “terrorism exception” to sovereign immunity, 28 U.S.C. 1605A(a)(1). Vera then secured a default judgment against Cuba in a U.S. District Court in New York, which granted full faith and credit to the Florida judgment. Vera served information subpoenas on the New York branches of various foreign banks, including BBVA, which refused to comply with the subpoena’s request for information regarding Cuban assets located outside the U.S. BBVA moved to quash the subpoena, contending that Vera’s judgment was void for lack of subject matter jurisdiction under the Foreign Sovereign Immunities Act, 28 U.S.C. 1602. The Second Circuit reversed in favor of BBVA. The district court lacked subject matter jurisdiction over Vera’s action against Cuba because Cuba was not designated a state sponsor of terrorism at the time Vera’s father was killed. Vera failed to establish that Cuba was designated a state sponsor of terrorism as a result of his father’s death. The FSIA’s terrorism exception to sovereign immunity—the only potential basis for subject matter jurisdiction— did not apply. Cuba was immune from Vera’s action. View "Vera v. Republic of Cuba" on Justia Law

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The notice of termination itself constitutes an adverse employment action, even when the employer later rescinds the termination. The Second Circuit held that plaintiff's notice of termination in this case was itself an adverse employment action, despite its later revocation; likewise, the court saw no reason to construe plaintiff's Family Medical Leave Act (FMLA) claim differently from her Title VII claim with respect to whether the rescission of a notice of termination given to a pregnant employee establishes as a matter of law that the notice may not constitute an adverse employment action; the facts alleged were insufficient to establish constructive discharge nor a hostile work environment; plaintiff's retaliation claim was properly dismissed; and because plaintiff did state a plausible claim of discriminatory termination, and interference with her FMLA rights, the district court should reconsider on remand its decision to decline to exercise supplemental jurisdiction over the state and city law claims. Accordingly, the court vacated in part and remanded, and affirmed in all other respects. View "Shultz v. Shearith" on Justia Law

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After defendant was convicted of possessing digital images and videos of child pornography, he violated two conditions of his supervised release. In regard to the computer monitoring condition, the Second Circuit held that the condition, as construed for purposes of this appeal and under the court's deferential standard, was reasonable. In regard to the mental health treatment condition, the court held that it was reasonable for defendant to object to signing a treatment agreement that conflicted with his actual sentence, and he did not appear, based on the record, to have otherwise acted unreasonably with respect to participating in such treatment. Accordingly, the court affirmed in part, reversed in part, and remanded. View "United States v. Browder" on Justia Law

Posted in: Criminal Law

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Plaintiff, a shareholder in three public companies, filed suit seeking disgorgement of "short-swing" profits under Section 16(b) of the Securities Exchange Act of 1934, 15 U.S.C. 78p(b), from investment entities controlled by Carl C. Icahn. The district court dismissed plaintiff's actions on behalf of the companies under Rule 12(b)(6). The Second Circuit affirmed the dismissal, holding that plaintiff has not plausibly alleged that Icahn failed to disgorge all of the premiums received for writing (selling) the put options. In this case, the complaint did not state a claim for relief because it relied exclusively on comparisons to options traded on the open market that have no meaningful similarities to the options at issue here. View "Olagues v. Icahn" on Justia Law

Posted in: Business Law

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Plaintiff filed suit under the Federal Tort Claims Act (FTCA) after he was held in immigration detention for more than three years because the government mistakenly believed that he was a deportable alien. The district court found the government liable to plaintiff on the false imprisonment claim, dismissed the malicious prosecution claim and negligent investigation claim on motion, and entered judgment for the government on the negligent delay claim post-trial. The Second Circuit reversed the judgment as to the false imprisonment claim because it was time-barred. The court affirmed the judgment in all other respects, holding that the malicious prosecution claim failed because the government did not act with malice, the negligent investigation claim failed for lack of a private analogue, and the negligent delay claim failed because plaintiff suffered no cognizable damages. View "Watson v. United States" on Justia Law