Seventh Circuit Reminds Attorneys to Conduct “Reasonable Amount of Legal Research” Before Filing Claims


Under the federal civil rights statutes, plaintiffs who prevail ordinarily receive an award of attorneys’ fees that must be paid by the defendant. But, in order not to deter plaintiffs from filing such claims, the reverse is not true. Indeed, only in rare cases do courts award prevailing defendants their fees: an award is appropriate only where a plaintiff’s claim is frivolous, unreasonable, or without foundation. The Seventh Circuit, in an opinion by Judge Rovner, recently came across just such a case.

In Bluestein v. Central Wisconsin Anesthesiology, Nos. 13-1374, 14-1256 & 14-1257 (7th Cir. Oct. 15, 2014), the plaintiff was a practicing anesthesiologist who, along with 15 other physicians, was a shareholder of Central Wisconsin Anesthesiology. She alleged that she was fired from her position because of a disability and filed suit under the Americans with Disabilities Act. But the ADA, like other Civil Rights Statutes, protects employees, not employers. Because Bluestein had a vote on all major decisions (including the vote to terminate her from the practice), she was not an employee of Central Wisconsin, but rather an owner-employer.

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Violation of OSHA Standards Now More Costly in Wisconsin

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Last week, the Wisconsin Supreme Court resolved its first case of the year. It affirmed, by an equally divided court, the published opinion of the court of appeals in Sohn v. LIRC, 350 Wis. 2d 469. The Wisconsin Court of Appeals had earlier held that an employer was required to make the “penalty” payment under Wis. Stat. § 102.57 to an employee who was injured at work. That statute requires employers to make a payment to injured employees, calculated as 15% of the employee’s worker’s compensation award, and capped at $15,000, when an employer violates safety regulations.

Sohn began when an employee severely injured her hand while cleaning manufacturing equipment, which her employer required her to do while the machines were still running. An investigation revealed that the employer’s practices did not comply with OSHA standards governing safe shut-down procedures for servicing machines. The practices also violated Wisconsin’s Safe Place Statute. An administrative law judge awarded the 15% penalty to the employee, and that decision was affirmed by the LIRC, the circuit court, and the court of appeals.

The two issues for the court of appeals were whether federal law preempted the penalty under § 102.57 and whether Wisconsin’s Safe Place Statute could support the penalty payment. Continue reading this entry

Seventh Circuit Warns Intervenors Not to Sleep on Their Rights


Vigilantibus non dormientibus, æquitas subvenit.

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It’s an ancient principle of equity, drawn from Roman law: Equity relieves the vigilant, not those who sleep upon their rights. And it sums up quite well the Seventh Circuit’s recent decision in SEC v. First Choice Management Services, Nos. 14-1270 & 14-2284 (Sept. 11, 2014)First Choice did not involve equity (or even cite the maxim); it concerned an untimely motion to intervene. But the principle was the same, and it’s a good lesson for potential intervenors.

The court, in an opinion written by Judge Posner, affirmed the district court’s denial of a motion to intervene as untimely in a receivership proceeding. The proposed intervenor knew that the receiver proposed to sell the property to which the intervenor had an adverse claim six months before the intervenor sought to intervene. Judge Posner and the Seventh Circuit were unwilling to brook that sort of “dawdling,” which created only more work for the receiver, purchaser, and district court.

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Seventh Circuit Uses Fed. R. Civ. P. 60(b)(5) to Reopen 23-Year Old Judgment


Federal Rule of Civil Procedure 60(b)(5) allows a party to move for relief from a final judgment on the ground that “it prospectively is no longer equitable.” Motions under Rule 60(b)(5) must be made “within a reasonable time” under Rule 60(c)(1), but subsection (c)(1) otherwise sets no firm deadline.

So what is “a reasonable time”? According to the Seventh Circuit’s decision today in Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. State of Wisconsin, it could be as much as 23 years. No. 14-1051 (7th Cir. Oct. 9, 2014).

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Wisconsin Voter ID: Plaintiffs' Emergency Application to Justice Kagan Lacks a Key Element


The plaintiffs in Wisconsin’s Voter ID case yesterday filed an emergency application with Justice Kagan, the Circuit Justice assigned to the Seventh Circuit, seeking an order vacating the Seventh Circuit’s September 12 stay of Judge Adelman’s injunction against enforcement of the law, 2011 Wis. Act 23. Justice Kagan has called for a response from the state by next Tuesday.

We have written several times already about the argument in the Seventh Circuit on the merits; that court’s stay of the injunction the same day (here); and the plaintiffs’ ultimately unsuccessful effort (for failure to get a sixth vote among the court’s ten active judges) to have the full court hear their motion for reconsideration of the stay (here). The plaintiffs have now turned to the last place from which they can hope for relief, to prevent the Voter ID law from taking effect for the November elections.

The application for stay, like the plaintiffs’ motion for en banc hearing in the Seventh Circuit, makes a strong case as to two of the traditional criteria for a stay—likelihood of success and irreparable harm. Other commentators, focusing on these elements, have gone so far as to predict success for the application before Justice Kagan or the full Court, to which she is likely to refer it.

We’re not in the prediction business, but we note the weakness of the application’s showing on what is always a key factor in obtaining emergency relief from a Circuit Justice or the entire Supreme Court while the case is still pending in the lower court (recall that the Seventh Circuit panel has not yet issued a decision on the merits of the case). In asking a Circuit Justice to vacate a stay entered before the court of appeals’ decision, it is necessary to show that the “case could and very likely would be reviewed [in the Supreme Court] upon final disposition in the court of appeals.” Coleman v. Paccar Inc., 424 U.S. 1301 (1976) (Rehnquist, J. in chambers).

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