Judge Easterbrook on Appellate Review: There Are No "Writs of Erasure"


Judge Easterbrook provided a fundamental and valuable lesson on appellate review during today’s oral argument in O’Keefe v. Chisholm, a series of consolidated appeals that concern the John Doe investigation brought by Milwaukee’s elected (and Democratic) district attorney into the fundraising efforts of Wisconsin’s Governor (Republican) Scott Walker.

The exchange occurred during the oral argument presented by counsel for the district attorney and for certain members of the district attorney’s staff. As appellants in this case, they sought to overturn an injunction entered earlier by the U.S. District Court for the Eastern District of Wisconsin. That injunction halted the John Doe proceeding and ordered the destruction of all records collected by investigators, and, in the process of entering the order, the district court was critical in its opinion of the district attorney’s efforts.

What the appellants asked for, however, turned out to be a bit too much. The exchange is below.

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Blackstone and Booze: Wisconsin Court of Appeals Discusses Retroactivity of Judicial Decisions


On August 26, the Wisconsin Court of Appeals released Mixx Night Club v. Milwaukee, 13AP2599, an opinion analyzing the retroactivity of Wisconsin Supreme Court decisions.

The case began with a rowdy nightclub in Milwaukee. The City of Milwaukee “non-renewed” Mixx Nightclub’s Class B tavern license, after “numerous disturbances” at Mixx in 2011 and 2012. Mixx sought review of the Common Council’s decision in the Milwaukee County Circuit Court. Relying on a recent Wisconsin Court of Appeals decision, Nowell v. Wausau, 2012 WI App 100, 344 Wis. 2d 269, 823 N.W.2d 373 (Nowell I), Judge Sankovitz conducted a de novo trial and vacated the Milwaukee Common Council’s non-renewal decision. The City appealed.

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7th Circuit Defines "Worthless Services" Under the False Claims Act


“Services that are ‘worth less’ are not ‘worthless.’”

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That’s the upshot from U.S. ex rel. Absher v. Momence Meadows Nursing Center, Nos. 13-1886 & 13-1936 (Aug. 20, 2014), a recent decision from the Seventh Circuit (authored by Judge Manion) that addressed the worthless-services theory of liability under the False Claims Act.

The worthless-services theory is the idea that a qui tam relator could prove a violation of the False Claims Act if the defendant was reimbursed for products or services that had a value equal to zero. To obtain reimbursement for providing something truly worthless would seem to be the essence of a “false claim.” The theory has been adopted by the U.S. Courts of Appeals for the Second, Sixth, Eighth, and Ninth Circuits. But it hasn’t been adopted by the Seventh Circuit, though the court considered it at length in Absher. Ultimately it was Absher‘s facts that caused the Seventh Circuit to stop short.

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7th Cir. Confirms Protections for Sealing Parties’ Confidential Documents


A common concern for business litigants is protecting legitimately confidential matter contained in documents produced during discovery from dissemination to non-parties.  The Supreme Court’s decision in Seattle Times Co. v. Rhinehart, 47 U.S. 20 (1984), confirmed that discovery material can be shielded from the public eye—commonly through a protective order—but once that material is filed with the court, any document that affects the disposition of litigation is presumptively open to public view.  Some parties, pointing to Fed. R. Civ. P. Rule 5(d), have suggested that any document filed with a court “has been used in [a court] proceeding,” and  has possibly influenced the judicial decision, so must presumptively be made public.  That interpretation leaves the producing party (usually the business entity) in a vulnerable position, unable to protect from disclosure confidential documents produced to the opposing party, regardless of whether they are relevant to the issue at hand.

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7th Cir. Leaves Distressed-Asset Investor with No Remedy, or Exactly What it Bargained for


It’s rare that a party to a contract can breach it but not be liable for a remedy. Yet that’s precisely what happened last week in Southern Financial Group, LLC v. McFarland State Bank, No. 13-3378 (7th Cir. Aug. 15, 2014), a Wisconsin-law decision from the Seventh Circuit (written by Chief Judge Wood) that has much in common with a case that we wrote about yesterday involving the Seventh Circuit’s determination that Wisconsin law has a heightened discovery-rule standard for corporate plaintiffs pursuing fraud claims.

Only Southern Financial didn’t involve a tort or a statute of limitations. It concerned the right of two sophisticated parties to bargain, to reach an agreement, and, as part of that agreement, to limit (entirely, as it turned out) the remedies available in the event of a breach. The stories’ moral is the same, however: Courts treat sophisticated parties (often corporations) differently, whether that means holding them to a higher standard under a discovery rule or binding them to their contract’s terms, even when that means that there is no remedy for a breach.

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