Justia U.S. 2nd Circuit Court of Appeals Opinion Summaries

Petitioner a native and citizen of South Korea, sought review of a Board of Immigration Appeals  (BIA) decision affirming an Immigration Judge’s denial of Petitioner’s application for cancellation of removal. The BIA found Jang ineligible for cancellation because of her state conviction for attempted second-degree money laundering which it deemed a “crime involving moral turpitude” (“CIMT”) under the Immigration and Nationality Act.   The Second Circuit granted Petitioner’s petition for review and remanded the case to the agency for further consideration. The court held that Petitioner’s offense of conviction lacks the scienter required to qualify as a CIMT. The court explained that the BIA’s reliance on Section 470.10(1) to determine that Petitioner’s crime was a CIMT was indisputably misplaced, either as a reference to the Tejwani provision that had been superseded by Section 470.15(1)(b)(ii)(A) before Petitioner’s offense conduct or as a reference to the current Section 470.10(1), which defines money laundering in the third, not second, degree. Further, the knowledge required for conviction under Section 470.15(1)(b)(ii)(A) falls well short of the depravity described by the BIA as requisite for a CIMT. The BIA, therefore, erred in treating Petitioner’s conviction for attempted money laundering in the second degree as a CIMT and on that basis denying her application for cancellation of removal. View "Jang v. Garland" on Justia Law

Plaintiffs appealed a district court judgment dismissing their action against Defendants-Appellees BLC Bank, S.A.L. (“BLC”), Credit Libanais, S.A.L. (“CL”), AlMawarid Bank, S.A.L. (“AM”), and Banque du Liban (“BDL”) for want of subject-matter jurisdiction, for want of personal jurisdiction, and for forum non conveniens based on binding forum selection clauses in agreements Plaintiffs entered into with AM and BLC. Plaintiffs alleged that Defendants- (together, “the Banks”) engaged in a scheme to cheat them out of millions of U.S. dollars (“USD”) by inducing them to deposit those dollars in Lebanese bank accounts with the promise that they would be able to withdraw that money in the United States, only to renege on that promise and keep the money trapped in Lebanon. The district court dismissed the claims against AM and BLC because the Daous’ agreements with those banks included valid, enforceable forum selection clauses specifying Beirut as the proper forum; those against CL because it lacked personal jurisdiction over that bank, and those against BDL because that bank is an agency or instrumentality of the Lebanese state and no exception applied under the Foreign Sovereign Immunities Act (“FSIA”).   The Second Circuit held that the district court lacked personal jurisdiction over AM, BLC, and CL (together, “the Commercial Banks”) under the relevant provision of New York’s long-arm statute, N.Y. C.P.L.R. Section 302(a)(1), because there was insufficient connection between Plaintiffs’ claims against the Commercial Banks and those banks’ business transactions in New York. The court further held that BDL, an agency or instrumentality of a foreign sovereign is entitled to sovereign immunity. View "Daou v. BLC Bank, S.A.L." on Justia Law

Defendant appealed his conviction following a jury trial in district court in which he was found guilty of racketeering, murder in aid of racketeering, various narcotics offenses, interstate prostitution, and sex trafficking of minors. On appeal, Defendant argued that the district court erred by permitting him to represent himself without a psychiatric evaluation.   The Second Circuit affirmed the judgment holding that while the district court has the discretion to conduct an inquiry into a defendant’s mental competence before granting a motion to proceed pro se, the court is not required to order psychiatric testing and did not err in granting Defendant’s motion. The court explained that where a defendant has been found competent to stand trial Edwards does not require a court to conduct a further competency hearing or order psychiatric evaluations before permitting a defendant to proceed pro se. (Indiana v. Edwards, 554 U.S. 164 (2008).) Further, on the current facts, the court could not say that the district court abused its discretion in failing to sua sponte order a psychiatric evaluation prior to determining that Defendant “knowingly and intelligently” waived his right to counsel. View "United States v. Rivera" on Justia Law

Plaintiff appealed from a judgment of the district court dismissing on abstention grounds his complaint asserting claims of replevin, conversion, and statutory theft relating to a Jackson Pollock collage. On appeal, Plaintiff argued the district court erred in abstaining under Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976) because (1) the state and federal actions are not “concurrent and parallel” since they involve different parties, different issues, and different remedies; and (2) his claims will not become moot if the state court finds the collage is part of Defendant’s marital estate because Defendant is not a party to the divorce action and the state court will not adjudicate his claims.   The Second Circuit vacated the district court’s dismissal of Plaintiff’s complaint. The court explained that the federal and state proceedings at issue here are not parallel; the parties and relief sought are not the same. Here, Plaintiff is not a party to the state divorce action, and his sister is not a party to the federal court action. The issues and relief sought are distinct: the state action involves domestic relations concerns as well as identification and distribution of marital property while Plaintiff raises claims related to ownership and care of the Collage—tort claims against only Defendant seeking replevin of the Collage and monetary damages for conversion and civil theft. Mere “commonality in subject matter” does not render actions parallel. View "Mochary v. Bergstein" on Justia Law

Defendant, represented by New York’s Attorney General, appealed from a district court judgment holding that New York Penal Law Section 215.50(7), which prohibits certain speech within a 200 feet radius of a courthouse, violates the First Amendment of the United States Constitution and permanently enjoining the enforcement of the statute in all circumstances. The State of New York argued that Plaintiff lacked standing to challenge the statute and that the district court erred in granting an injunction that enjoined enforcement of the statute in all circumstances, beyond its application to Plaintiff’s own conduct in this case.   The Second Circuit concluded that while Plaintiff has standing to challenge the statute, the district court erred in granting such a broad injunction. The court, therefore, vacated the judgment of the district court and remanded with instructions to enjoin the application of NYPL Section 215.50(7) only in the circumstances presented by Plaintiff’s conduct in this case. The court explained that an injunction prohibiting the application of NYPL Section 215.50(7) in the circumstances presented by Plaintiff’s case – in which a single individual advocated for what he contends are the correct principles of the legal system, unconnected to any specific trial and effected through non-intrusive and non-disruptive leafletting rather than more aggressive, disruptive, or targeted forms of communication – would suffice to vindicate Plaintiff’s First Amendment right to advocate his point of view regarding jury nullification and to engage in the conduct in which he has engaged in the past and intends to continue in the future. View "Picard v. Magliano" on Justia Law

Plaintiff Pfizer, Inc. brought an action in the United States District Court for the Southern District of New York under the Administrative Procedure Act, 5 U.S.C. Section 706(2), challenging an advisory opinion issued by the United States Department of Health and Human Services Office of Inspector General ("HHS OIG"). Pfizer produces and sells a drug called tafamidis that treats a rare, progressive heart condition known as transthyretin amyloid cardiomyopathy. To make the expensive treatment more affordable, Pfizer proposed a Direct Copay Assistance Program, through which Pfizer would directly cover the cost of a patient's co-pay for tafamidis.    HHS OIG issued an advisory opinion stating that the Direct Copay Assistance Program would violate the federal Anti-Kickback Statute, 42 U.S.C. Section  1320a-7b(b)(2)(B). The district court granted summary judgment to defendants, rejecting Pfizer's argument that liability under the Anti-Kickback Statute requires an element of "corrupt" intent.   The Second Circuit affirmed the decision holding that the agency’s interpretation of the Anti-Kickback Statute is not contrary to law. Specifically, the court explained that it has no doubt that hat at least some kind of quid pro quo, direct or indirect, exists here. However, the court does not think it is the case that every quid pro quo is inherently corrupt. Thus, while Pfizer relies heavily on two cases to argue that the word "induce" implies corruption. Neither supports its position. View "Pfizer, Inc. v. HHS" on Justia Law

In a trademark dispute under the Lanham Act, 15 U.S.C. sections 1114, 1125(a), and New York’s law of trademark and unfair competition, PepsiCo, Inc., the Defendant, which marketed a canned energy drink under the mark “MTN DEW RISE ENERGY,” appealed from a preliminary injunction imposed on it by the district court at the instance of the Plaintiff, RiseandShine Corporation, d/b/a Rise Brewing (“Rise Brewing”), which sells nitro-brewed canned coffee (and also canned tea) under the name RISE. It is undisputed that Plaintiff began using the RISE mark prior to Defendant’s use of its mark. The district court concluded that  Defendant’s conduct in using RISE caused a likelihood of confusion and that  Plaintiff was likely to succeed on the merits.   The Second Circuit vacated the preliminary injunction, finding that the grant of a preliminary injunction was premised on two significant errors. The court wrote that the district court granted Plaintiff a preliminary injunction based in part on the conclusion that Plaintiff was likely to succeed on the merits. This rested in substantial part on the court’s conclusion that Plaintiff’s mark was strong—both in inherent and acquired strength—as well as its determination that the two products were “confusingly similar.” To the extent that Defendant’s use of its marks caused any likelihood of confusion, this was because Plaintiff chose a weak mark in a crowded field. For this reason, the balance of hardships did not favor Plaintiff. Plaintiff did not demonstrate a likelihood of success on the merits. View "RiseandShine Corporation v. PepsiCo, Inc." on Justia Law

Petitioner worked at a subsidiary of the Royal Bank of Scotland Group PLC (“RBS” or “the Bank”) for six weeks in the fall of 2007 before resigning, prompted by what he believed to be unlawful practices engaged in by the Bank in connection with its portfolio of residential mortgage-backed securities (“RMBS”).   Petitioner later formally submitted information to the SEC about the Bank’s misconduct. The SEC itself took no action against the Bank but gave the information to the Department of  Justice (“DOJ”) and the Federal Housing Finance Agency (“FHFA”), each of which had already begun RMBS-related investigations into the Bank.   Petitioner n applied to the SEC for an award under its whistleblower program (the “Program”), established in 2010 by Section 21F of the Securities Exchange Act. The SEC denied his claim. Petitioner petitioned for judicial review.   The Second Circuit denied the petition holding that it found no error in the SEC’s construction of Section 21F to require an action “brought by the Commission” to support a whistleblower award. The court further decided that, contrary to Petitioner’s arguments, investigative and information-sharing activities engaged in by the SEC are not “covered judicial or administrative action[s]  brought by the Commission under the securities laws” or “actions” as to which the DOJ  and FHFA settlements can be considered “related.” Thus, the court adopted the Commission’s determination that Petitioner was not entitled to an award under the Program because the Commission did not bring a covered action. View "Hong v. Securities and Exchange Commission" on Justia Law

Defendant was convicted of conspiracy to commit Hobbs Act robbery. Application Note 1 to Section 4B1.2 provides that, among other things, a conspiracy to commit a crime of violence is itself a crime of violence. The district court held that it was not obligated to defer to Application Note 1 because it was inconsistent with 4B1.2(a). The Government appealed.The Second Circuit affirmed the district court’s ruling. The court held that the Hobbs Act robbery is not categorically a “crime of violence” under the career offender provision of the United States Sentencing Guidelines. The court explained that Hobbs Act robbery can be committed based solely on violence against property, whereas a “crime of violence” under Section 4B1.2 must be based on violence against people.   Here, the court explained it need not rule upon the validity of Application Note 1 in this context because the object of Defendant’s conspiracy offense (Hobbs Act robbery) was not a crime of violence as defined by Section 4B1.2. And if the object of the conspiracy is not a crime of violence, then the conspiracy itself cannot be one either (at least, not by virtue of Application Note 1).     . View "United States of America v. Chappelle" on Justia Law

Plaintiffs brought a suit under the Commodity Exchange Act (CEA), alleging that the Defendants engaged in fraudulent trading tactics – to Plaintiffs’ detriment – in markets for precious metals. The district court granted Defendants’ motion to dismiss under Rule 12(b)(6) for failure to state a claim, concluding that Plaintiffs’ claims are time-barred and that Plaintiffs did not adequately plead that they were injured by Defendants’ fraudulent trading activity. On appeal, Plaintiffs contend that their claims took years to accrue, and were therefore timely because they were not on notice of their injury. They separately argued that they have adequately pleaded that Defendants’ fraud injured them.   The Second Circuit affirmed the dismissal for failure to plead an injury. The court concluded that neither of Plaintiffs’ theories, alone or in combination, adequately alleges that Defendants’ trading activities injured them. The court explained that the CEA does not deputize traders to rove the commodities markets hunting for bad behavior. Rather, it makes fraudsters liable for actual damages.   Here, Plaintiff has not plausibly alleged that it was damaged. Instead, it theorizes that its regular participation in the relevant commodities markets supports an inference that it was injured by Defendants’ spoofing at least once. But this argument is so broad that endorsing it would permit any regular market participant to proceed to discovery any time a significant market player has repeatedly committed fraud – contravening both the statute and case law. Further, Plaintiffs’ allegations do not support an inference of damages. View "Gamma Traders - I LLC v. Merrill Lynch Commodities, Inc." on Justia Law