In Crown Castle USA, Inc. v. Orion Construction Group, LLC, No. 09AP3029 (Wis. Sup. Ct., Mar. 22, 2012), the Supreme Court, in a 4-3 decision that will be surprising to collections practitioners, concluded that a Wisconsin judgment creditor, in proceedings supplemental to entry of judgment, may not compel anyone but the judgment debtor itself to testify about the debtor’s assets.
La Crosse Tribune v. Circuit Court for La Crosse County: Creating a Trick Box for an Award of Attorney Fees
Posted in Court of Appeals; Wisconsin DecisionsIn La Crosse Tribune v. Circuit Court for La Crosse County, No. 10AP3120 (Wis. Ct. App., Mar. 15, 2012), the Court of Appeals left a newspaper seeking a statutory fee award for its success in obtaining access to public records in a trick box with no apparent way out.
Marlowe: Court Review of an Arbitrator’s Decisions About Discovery Must Await a Final Arbitration Award
Posted in Court of Appeals; Wisconsin DecisionsIn Marlowe v. IDS Property Cas. Ins. Co., No. 11AP2067 (Wis. Ct. App. Mar. 13, 2012), the Court of Appeals, resolving an issue of first impression in Wisconsin, held that a party to an arbitration under the Wisconsin Arbitration Act, Wis. Stat. ch. 788, may not, while the arbitration is pending, seek circuit court review of a decision by the arbitrators on the scope of discovery. As a separate and independent ground for its conclusion, the court held that, where arbitrators resolve a discovery dispute by interpreting a provision in the arbitration agreement, their decision is final and not subject to judicial review.
February En Banc Part II: Doe v. Elmbrook School District
Posted in UncategorizedOn February 9, the Seventh Circuit heard en banc the thorny issue of whether conducting a public high school graduation ceremony in a church violates the First Amendment. The panel decision, written by Judge Ripple and joined by Chief Judge Easterbrook, affirmed the Eastern District of Wisconsin’s ruling that holding the ceremonies for Brookfield Central and Brookfield East in the Elmbrook Church sanctuary did not offend the Establishment Clause. Judge Flaum dissented.
Marmet Health Care Center, Inc. v. Brown: Another Lesson in the FAA’s Preemption
Posted in Court of Appeals; Federal Decisions; Supreme Court; Wisconsin DecisionsIgnoring established precedent from a superior tribunal is one way for a court to earn a sharp rebuke from a higher court. And that is precisely what happened in a consolidated decision today in Marmet Health Care Center, Inc. v. Brown, No. 11-391, and in Clarksburg Nursing Home & Rehabilitation Center LLC v. Marchio, No. 11-394, where the Supreme Court of the United States granted writs of certiorari to the Supreme Court of Appeals of West Virginia, vacated that court’s judgments, and remanded for further proceedings — a practice known as a “GVR,” drawn from the first letter of the three words “grant,” “vacate,” and “remand.”
February 2012 En Bancs Part I: Minn-Chem Revisited
Posted in Seventh CircuitLast September in Minn-Chem, Inc. v. Agrium Incorporated, the Seventh Circuit interpreted the Foreign Trade Antitrust Improvements Act (“FTAIA”), 15 U.S.C. § 6a, in a way that made it more difficult to plead a Sherman Act claim based on alleged anticompetitive behavior that occurred abroad. (The earlier post is here.) Specifically, the decision concluded that absent allegations of anticompetitive conduct that actually targets the U.S. import market, a plaintiff alleging foreign anticompetitive conduct must allege facts that, if proved, demonstrate a direct, substantial, and reasonably foreseeable effect on U.S. domestic or import commerce. Allegations that defendants collusively set sale prices in other countries that were a benchmark for U.S. prices are insufficient if the complaint does not explain how this benchmarking occurred and affected U.S. prices. (For a bit more about the panel decision and a link to its text, see the earlier entry here.)
The court reheard the case en banc on Wednesday, February 8. The bulk of the court’s questions came from Chief Judge Easterbrook and Judges Posner, Wood, and Hamilton. In general the questioning from those judges seemed hostile to the appellants’ view that the FTAIA defeated plaintiffs’ attempt to plead a Sherman Act claim based on allegations that defendants imported anticompetitively priced potash into the U.S. The en banc argument is available here.
Heinen v. Northrop Grumman Corp.: A Lesson in Winning the Easy Ones
Posted in Federal Decisions; Seventh CircuitIn a decision that the Seventh Circuit issued on February 7, Chief Judge Easterbrook uses the occasion of a frivolous appeal from a district court’s judgment enforcing an arbitration clause to make a jurisdictional point and a procedural point. The failure of the winning lawyers to understand the first point nearly cost their client its lower court victory, and their failure to understand the second point did cost it an award of costs on appeal. There are lessons to be learned here.
United States v. Jones: Government’s Placing of GPS Tracking Device on Car is a Fourth Amendment Search
Posted in Federal Decisions; Supreme CourtThe United States Supreme Court today held that the government’s placement of a GPS tracking device on a car while it was parked in a public parking lot was a search for Fourth Amendment purposes. The decision, written by Justice Scalia, makes clear that the Fourth Amendment’s protection against government trespass survives the “reasonable expectation of privacy” analysis of Katz v. United States, 389 U. S. 347, 351 (1967). Earlier cases by the Seventh Circuit, United States v. Garcia, 474 F.3d 994 (7th Cir. 2007), and the Wisconsin Court of Appeals in Wisconsin v. Sveum, 2009 WI App 81, aff’d on other grounds, 2010 WI 92, had held that GPS placements were not Fourth Amendment searches.
Judges as Gatekeepers: Requiring a “Plain English” Explanation of Expert Testimony and Meaningful Analysis of an Expert’s “Principles and Methods”
Posted in Federal Decisions; Seventh CircuitThe Seventh Circuit recently made clear that a district court’s duty to rule on the admissibility of expert testimony requires a meaningful examination into whether a proffered expert’s analysis is methodologically sound. After reversing the plaintiff’s jury verdict as legally deficient, the court in ATA Airlines, Inc. v. Federal Express Corp. addressed the jury’s damages award, ruling that it was based on a fundamentally flawed regression analysis.
Deadline “Slipping Through the Cracks” Because of Overwork Does Not Justify Extension of Time to Appeal
Posted in Federal Decisions; Seventh CircuitThe Seventh Circuit today provided a bit more clarity to the standards governing extensions of the time to file a notice of appeal after the expiration of the 30-day deadline. See Fed. R. App. P. 4(a)(5). Plaintiff’s counsel in Sherman v. Quinn missed the 30-day deadline by 3 days. He successfully asked the district court for more time within the subsequent 30-day period in which Rule 4 allows district courts to extend the appeal deadline. In support of the request, he told the district court that the deadline had “‘slipped through the cracks’ due to demands on his time from his ballot-qualified candidacy for Governor of Illinois in the November 2010 general election.” According the Court of Appeals, counsel further pleaded that “the demands of the run ‘completely overwhelmed my capacity to complete all tasks before me’” and he was “‘working without a legal assistant of any kind.’” The Seventh Circuit dismissed the appeal as untimely, ruling that the district court abused its discretion in granting the extension.