Judge Posner Responds to Latest Criticism in Feud

Tony Mauro, Legal Times

Richard Posner.

Federal appeals judge Richard Posner on Saturday returned fire in the latest round of his long-running dispute with U.S. Supreme Court Justice Antonin Scalia and Scalia’s co-author Bryan Garner.\

Garner, a legal-writing expert, last week released a report he commissioned that examined a dozen allegations critical of Scalia in Posner’s 2013 book Reflections on Judging. Posner was critiquing Scalia and Garner’s 2012 book Reading Law: The Interpretation of Legal Texts.

In the report, San Francisco lawyer Steven Hirsch, a partner at Keker & Van Nest, found that eight of the 12 criticisms from Posner were unwarranted. “I am struck by the needlessly ad hominem nature of Posner’s analysis,” Hirsch also wrote.

Read more: http://www.nationallawjournal.com/legaltimes/id=1202654934632/Judge-Posner-Responds-to-Latest-Criticism-in-Feud#ixzz31buE63Rn

Daily Opinion Summaries U.S. 7th Circuit Court of Appeals

Olson v. Morgan Docket: 12-2786 Opinion Date: April 30, 2014 Judge: Sykes Areas of Law: Civil Rights, Constitutional Law, Criminal Law Olson shared a cell with Russell for about a week in 2007. Olson approached Sergeant Schneider and stated: “[M]y celly, Russell, has twice tried to swing off on me and I want him moved … I fear he’s gonna try to do it again … he isn’t taking his meds and hears voices that tell him to attack people.” Schneider asked other officers about Russell, but nobody had heard of any problems or of any issues with Russell’s medication. Schneider asked the officer supervising distribution to be sure Russell took his medication. The next evening Russell attacked Olson, damaging one of Olson’s teeth. The nurse on duty recommended that the tooth be pulled, but about a month passed before Olson saw a dentist. Olson filed a 42 U.S.C. 1983 lawsuit, alleging deliberate indifference to the risk of an attack by Russell and to his dental needs. The district court declined to appoint counsel, finding that Olson was a competent pro se litigant and that his claims were not complex, and ultimately granted summary judgment against Olson on all counts. The Seventh Circuit affirmed, noting that there was no evidence that Schneider was subjectively aware that Russell was dangerous or that the staff failed to act promptly once aware of Olson’s serious medical needs. http://j.st/ZJfZ View Case On: Justia  Google Scholar

United States v. Haldar Docket: 13-1238 Opinion Date: April 30, 2014 Judge: Hamilton Areas of Law: Criminal Law, Immigration Law, White Collar Crime Haldar, an Indian citizen, came to the U.S. in 1999 and has been a permanent resident since 2006. He founded GVS-Milwaukee, a Hare Krishna religious society and, from 2004 to 2007, GVS sponsored 25 applicants for religious-worker “R-1 visas,” 8 C.F.R. 214.2(r)(1), 17 of which were approved. In 2007 the State Department advised the Department of Homeland Security (DHS) that GVS-Milwaukee might be involved in visa fraud. DHS also received a similar anonymous tip and began an investigation that included temple visits, surveillance, searches of Haldar’s luggage on international trips, and interviews with GVS-sponsored visa recipients. In 2010 Haldar was convicted of conspiracy to defraud the U.S. under 18 U.S.C. 371. The Seventh Circuit affirmed, rejecting arguments (not raised in the district court) that certain statements from the prosecutor and a government witness improperly called into question the validity of his temple and were unfairly prejudicial under Federal Rule of Evidence 403; the prosecutor misrepresented testimony during his closing argument and relied on facts outside the record; and the district court on its own initiative should have instructed the jury not to scrutinize the religious qualifications of the visa recipients. http://j.st/ZJxv View Case On: Justia  Google Scholar

Daily Opinion Summaries U.S. 7th Circuit Court of Appeals

United States v. Carroll Docket: 13-2600 Opinion Date: April 29, 2014 Judge: Kapala Areas of Law: Criminal Law A 13-year-old girl reported that she had been molested by Carroll, her father’s co-worker, when she was eight years old. Detective Spivey presented a search warrant affidavit in which he explained his 16 years of experience; that child pornography collectors retain their collections because the images supply sexual gratification, are difficult to obtain, and are used to obtain new images, so that it is common to find discarded or outdated computers; and that deleted images may be retrieved years later. The victim reported that Carroll had touched her in a sexual way and shown her sexual images of younger children on his camera. She believed he had taken pictures of her bare genitalia. She did not open her eyes, but Carroll and her father were the only adults in the residence and Carroll was a professional photographer. The father indicated that Carroll took his camera from the office to his residence on a daily basis and used electronic devices in conjunction with one another. The judge found probable cause and issued the warrant. Analysis of Carroll’s computer and other digital media found in his residence revealed numerous images of the victim in various states of undress engaged in sexually explicit conduct. During the search Carroll made incriminating statements. Carroll unsuccessfully moved to suppress, arguing that the information in Spivey’s affidavit was stale. He then pled guilty to possession of child pornography, 18 U.S.C. 2252(a)(4)(B), and six counts of sexual exploitation of a child, 18 U.S.C. 2251(a) and was sentenced to 360 months in prison. The Seventh Circuit affirmed. http://j.st/ZJca View Case On: Justia  Google Scholar

Nat'l Org. for Women v. Scheidler Docket: 13-2197 Opinion Date: April 29, 2014 Judge: Easterbrook Areas of Law: Civil Procedure The underlying suit began 28 years ago and has been to the Supreme Court three times. Defendants who did not settle prevailed and applied for costs under 28 U.S.C. 1920 and were awarded most of what they sought after a district judge held the request under advisement for three years and then retired. The newly assigned judge awarded $63,391.45, less than $2,300 per year of litigation. On appeal, plaintiffs claimed that the defendants took too long to request costs; did not establish that transcripts and copies were “necessarily obtained for use in the case” under 28 U.S.C. 1920; and did not nudge the original judge to rule before he retired. The Seventh Circuit rejected the arguments, stating that the obligation to render timely rulings rests on the judiciary, not the parties. “This litigation has lasted far too long. At last it is over.” http://j.st/ZJc5 View Case On: Justia  Google Scholar

Seventh Circuit (Posner) Weighs in on Contractual Indemnification After Settlement of Underlying Injury Suit

Judge Posner Tears Into ‘Frivolous’ Appeal of Contempt Order

Seventh Circuit Examines Standing for Class Rep and Departs from 3rd 8th Circuits on FDCPA Interpretation

Illinois Social Media Case Law Summaries

UNITED STATES OF AMERICA v. DAVID LEWISBEY, United States District Court, N.D. Illinois, Eastern Division.

LEWISBEY was charged with one count of the illegal dealing in firearms, two counts of transportation of firearms, and two counts of crossing state lines with the intent to engage in the unlicensed trading of firearms. After a two-week jury trial, defendant was found guilty on all counts.The defendant moved for a new trial arguing that the Court erred in admitting photographs of firearms recovered from his phone, his Facebook posts and related text messages concerning gun sales. The photographs were relevant to the case in two ways. FIrst, the photographs of firearms demonstrated defendant's access to and possession of multiple firearms which supported the contention that defendant was involved in a business/dealing in firearms, which was the central issue in this case. Lewisbey argued that this evidence was insufficient to convict but the Court found that the government introduced sufficient evidence to establish defendant's guilt on each of the counts. Lastly, defendant argued that the statutes used to charge him are unconstitutionally vague but he failed to indicate which of the statutes he was referring to much less what specific language in any such statute is insufficient. Defendant cited no case law and developed no arguments whatsoever. For the reasons given above, defendant's motion for a new trial or judgment of acquittal was denied.

View Case at Google:

JILL E. MAREMONT v. SUSAN FREDMAN DESIGN GROUP and SUSAN FREDMAN

SFDG is a design firm headquartered in Chicago and owned by Fredman. Susan Rossie was the president of SFDG. Maremont was employed by SFDG as its Director of Marketing, Public Relations, and E-commerce. On her LinkedIn page, Maremont described her responsibilities as developing and maintaining social media campaigns on Facebook and Twitter. To keep track of the various social media campaigns she was conducting for the firm, Maremont created a spreadsheet in which she stored all account information, including the passwords for her accounts. Although Maremont denied providing the spreadsheet to anyone and maintained the file was locked, Laurice Shelven, an intern, stated that Maremont provided her with the spreadsheet information so she could assist Maremont in composing and publishing post social media.

On September 15, 2009, Maremont and an SFDG co-worker were seriously injured in an automobile accident. Maremont suffered serious brain trauma and still suffers from post-concussion syndrome and post-traumatic stress disorder. After Maremont's accident, SFDG hired Belmonti on a temporary basis to conduct its social media campaigns in her absence. Defendants made seventeen posts to Maremont's Twitter account during her illness. At the same time, while Maremont maintains she was not accessing her Facebook account, there was additional user activity. Despite knowing Belmonti was acting as her temporary replacement, Maremont did not contact Belmonti to ask her to stop making Twitter or Facebook posts. Ultimately, on December 11, 2009, Maremont and her husband changed the passwords to these two social media accounts.  On May 17, 2010, Maremont returned to work on a part-time basis. On May 18, 2010, Maremont wrote Twitter and Facebook posts that linked to a May 17, 2010 entry on SFDG's blog in which she announcing her return and  thanked her replacements for their posts on the blog in her absence. Maremont claimed that Defendants' use of her  accounts caused her emotional distress requiring psychiatric treatment and medication. Maremont's husband and father corroborated that Maremont becomes emotionally upset at the mention of SFDG or Fredman.

Maremont filed suit against Defendants alleging violations of the Lanham Act, 15 U.S.C. § 1125(a), the Stored Communications Act (the "SCA"), 18 U.S.C. § 2701 et seq., the Illinois Right of Publicity Act, 765 Ill. Comp. Stat. 1075 et seq., and the common law right to privacy. The Court had already granted summary judgment for Defendants on Illinois Right of Publicity Act and common law right to privacy claims. For the foregoing reasons, Defendants' motion for summary judgment was granted in part and denied in part. The Court found that Maremont had not established damages under the Lanham Act so granted summary judgment in favor of Defendant.

View Case at Google:

Illinois Social Media Law Google

Illinois Social Media Law Facebook

Illinois Social Media Law Twitter

Daily Opinion Summaries U.S. 7th Circuit Court of Appeals

United States v. Johnson

Docket: 13-1531	Opinion Date: February 12, 2014
Judge: Williams
Areas of Law: Criminal Law

Johnson pled guilty to failure to register as a sex offender, and the sentencing memorandum requested an enhancement for committing a sex offense on the basis that Johnson sexually assaulted his former girlfriend, S.W. Unexpectedly for both the prosecution and defense counsel, S.W. appeared at his sentencing hearing and stated she wanted to testify. The judge exercised his authority to call S.W. to the stand. She testified that although she did not want Johnson to perform oral sex on her on the date in question, he did so but did not use force. The judge relied on S.W.’s testimony and imposed a U.S.S.G. 2A3.5(b)(1)(A) enhancement for committing a sex offense while in failure to register status. The Seventh Circuit vacated the sentence. The crimes of criminal sexual assault and abuse in Illinois require the use or threat of force in such a situation.

http://j.st/Zkih
View Case On: Justia  Google Scholar

Daily Opinion Summaries U.S. 7th Circuit Court of Appeals

Wourms v. Fields Docket: 13-1178 Opinion Date: February 5, 2014 Judge: Posner Areas of Law: Civil Rights, Constitutional Law, Injury Law Wourms, age 16, was killed in a crash; he was driving erratically when an officer, warned by a 911 call from Wourms’ mother that her son was drunk and “going crazy,” turned on his emergency lights to signal him to pull over. Wourms increased his speed to about 80 mph in an area posted for 25 mph. His father sued under 42 U.S.C. 1983, arguing that the crash was caused by the police car intentionally ramming Wourms’s car, resulting in an unconstitutional seizure of his person and property. The officer denied that his car touched Wourms’s car. The district court entered summary judgment, finding the evidence insufficient for a reasonable jury to find that the cars had collided. The Seventh Circuit affirmed, noting that without a collision, Wourms was entirely responsible; the police officer had every legal right to signal Wourms to pull over. Even ramming a recklessly driven car to induce the driver to stop or cause the car to crash, need not be unreasonable. In this case, however, there were no marks on the police car that matched marks on Wourms’s car, no debris on the road where Wourms started to swerve, and no skid marks from the police car. Witness testimony indicated that the police could not have caught Wourms in time to hit his car before the crash. http://j.st/vrj View Case On: Justia  Google Scholar

Kolbe & Kolbe Health & Welfare Benefit Plan v. Med. Coll. of WI Docket: 12-3837 Opinion Date: February 5, 2014 Judge: Posner Areas of Law: Contracts, ERISA, Insurance Law An employee benefits plan sued a medical college that provides patient care in clinics and hospitals and an affiliated children’s hospital, with which it had provider agreements, alleging ERISA violations and breach of contract under Wisconsin law. The suit was based on the plan’s determination that an employee’s child was not covered by the plan and the hospital’s denial of its subsequent request that the hospital refund about $1.7 million the plan had already paid on behalf of the child. The plan makes no mention of refunds. The district court dismissed and awarded attorneys’ fees to the hospital as a sanction for having filed frivolous claims. The Seventh Circuit affirmed dismissal of the ERISA claims but reversed dismissal of the breach of contract claim, rejecting the district court’s finding of preemption, and imposition of sanctions. On remand of the contract claim, the district court granted summary judgment in favor of the hospital. The Seventh Circuit affirmed, noting that the hospital, having been paid in full by the plan, has no possible claim against Medicaid, that the plan took 11 months to determine that the child was not a beneficiary, and that the hospital has not been unjustly enriched. http://j.st/vrP View Case On: Justia  Google Scholar

Daily Opinion Summaries U.S. 7th Circuit Court of Appeals

Annex Books, Inc. v. City of Indianapolis Docket: 13-1500 Opinion Date: January 24, 2014 Judge: Easterbrook Areas of Law: Communications Law, Constitutional Law Indianapolis requires adult bookstores to remain closed between midnight and 10 a.m. every day and all day Sunday. Other retail businesses are not subject to the restrictions. Indianapolis contended that closure would curtail secondary effects, but the Seventh Circuit rejected the claim. The district court then held a trial and accepted the city’s claim of fewer armed robberies at or near adult bookstores. The Seventh Circuit reversed and remanded for entry of an injunction prohibiting enforcement. The city did not use a multivariate regression to control for other potentially important variables, such as the presence of late‑night taverns. The difference in the number of armed robberies is not statistically significant. The data did not show that robberies are more likely at adult bookstores than at other late-night retail outlets, such as liquor stores and convenience stores, which are not subject to the hours imposed on bookstores. The secondary-effects approach endorsed by the Supreme Court permits governments to protect persons who want nothing to do with adult uses from harms created by adult businesses; the Supreme Court has not endorsed an approach under which governments can close adult bookstores to reduce crime directed against businesses that accept the risk of being robbed, or persons who voluntarily frequent their premises. http://j.st/vge View Case On: Justia  Google Scholar

Boehringer Ingelheim Pharm. v. Herndon Docket: 13-3898 Opinion Date: January 24, 2014 Judge: Posner Areas of Law: Drugs & Biotech, International Law, International Trade A number of suits have challenged the accuracy of the warning label on Pradaxa, a prescription blood-thinning drug manufactured by Boehringer. The litigation is in the discovery stage. The district judge presiding over the litigation imposed sanctions on Boehringer for discovery abuse. Boehringer sought a writ of mandamus quashing the sanctions, which included fines, totaling almost $1 million and also ordered that plaintiffs’ depositions of 13 Boehringer employees, all of whom work in Germany be conducted at “a place convenient to the [plaintiffs] and [to] the defendants’ [Boehringer’s] United States counsel,” presumably in the United States. The parties had previously agreed to Amsterdam as the location. The Seventh Circuit rescinded the order with respect to the depositions but otherwise denied mandamus. http://j.st/vgm View Case On: Justia  Google Scholar

Teamsters Local Union No. 705l v. Burlington Northern Santa Fe, LLC Docket: 11-3705 Opinion Date: January 24, 2014 Judge: Sykes Areas of Law: ERISA, Labor & Employment Law The Railroad owns the Corwith Rail Yard in Chicago and, until 2010, used an independent contractor, RTS, to operate Corwith. Teamsters Local Union 705 represented RTS employees, who were covered by the union’s health-and-pension plan. The Railroad contributed to the plan, as required by its contract with RTS. In 2010 the Railroad obtained wage-and-benefits concessions from Local 705. But when the Railroad ended its relationship with RTS and moved the Corwith work in-house, it entered into a bargaining agreement with a different union, TCIU. RTS terminated the employment of its Corwith employees. The employees could reapply with the Railroad, but its compensation package with TCIU was not as generous. Local 705 and employees filed a proposed class action, alleging violation of the Employee Retirement Income Security Act, 29 U.S.C. 1001 and conspiracy to violate ERISA. The district court dismissed. On appeal, the plaintiffs alleged unlawful interference with the attainment of retirement benefits in violation of ERISA and a related conspiracy claim. The Seventh Circuit affirmed. The plaintiffs alleged only an unlawful “discharge,” which presupposes an employment relationship. Only RTS was in an employment relationship with the membersof Local 705. The complaint alleged that RTS discharged the employees because it lost its contract, not for the purpose of interfering with their attainment of pension benefits. ERISA does not provide a cause of action for conspiracy. http://j.st/vgP View Case On: Justia  Google Scholar

Doe v. Raemisch Docket: 13-1233 Opinion Date: January 24, 2014 Judge: Posner Areas of Law: Constitutional Law, Criminal Law Two convicted sex offenders challenged aspects of Wisconsin’s statutory scheme of sex offender registration, notification, and monitoring as violating the constitutional prohibition against enacting ex post facto laws. The law was enacted after the plaintiffs committed and were convicted of sex offenses that made them subject to it, but before they’d finished serving their sentences. The district judge ruled that the $100 annual registration fee that the monitoring act imposes on convicted sex offenders is a fine, which is a form of punishment and cannot constitutionally be imposed on persons who committed their sex crimes before the fee provision was enacted, but upheld the other provisions of the act. The Seventh Circuit reversed with respect to the annual registration fee but affirmed dismissal of other challenges to the statutory scheme on grounds of standing. http://j.st/vgQ View Case On: Justia  Google Scholar

United States v. Stenson Docket: 13-1329 Opinion Date: January 24, 2014 Judge: Kanne Areas of Law: Criminal Law Stenson was convicted of possessing a firearm after having been convicted of a felony. The district court imposed a two‐level obstruction of justice sentencing enhancement, finding that Stenson willfully committed perjury when he testified on his own behalf. The Seventh Circuit affirmed the sentence. Stenson did not just deny that he possessed the firearm, he repeatedly denied even seeing a firearm and testified that it was his cell phone, not a firearm, that the police officers saw in his possession. The court found Stenson’s testimony incredible in light of the other evidence and that this testimony was material and not the result of confusion, mistake, or faulty memory. http://j.st/vgM View Case On: Justia  Google Scholar

Seventh Circuit Frowns on Sealed Settlement Agreements

By Sheri Qualters Contact All Articles 

The National Law Journal

December 27, 2013

 

Judge Richard Posner

The U.S. Court of Appeals for the Seventh Circuit has refused to allow the sealing of settlement agreements in two civil actions, citing the “presumption of public access to judicial records.”

Regarding one of the cases, Judge Richard Posner wrote, the information is important to future negotiations over attorneys’ fees in cases in which the plaintiff is a minor. “[N]o good reason—in fact no reason at all—has been given for thinking that concealment of the information would serve some social purpose,” he wrote.

Read more: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202635075322&Seventh_Circuit_Frowns_on_Sealed_Settlement_Agreements#ixzz2oioo5kv7