Judge Posner Sets Out to Clean Up Frivolousness


Nate Carter probably wasn’t expecting this.

Mr. Carter had lost his home to a mortgage foreclosure. So seemingly out of blind rage—or at least the sort of anger that when coupled with ignorance leads one to do illogical things—he brought suit in the U.S. District Court for the Northern District of Illinois, alleging that the responsible financial institutions didn’t hold his note or the associated mortgage and thus had violated his rights under the federal Constitution. The merits of what he complained about weren’t exactly clear to the legal, critically thinking mind, and, in any event, nothing about his suit even remotely suggested that it belonged in federal court. The district court dismissed it as frivolous.

Ordinarily decisions on appeal from this sort of case don’t make their way into the venerable pages of the federal reporter. The Seventh Circuit’s Circuit Rule 32.1(a) flatly states that “[i]t is the policy of the circuit to avoid issuing unnecessary opinions.” On the surface there wasn’t anything noteworthy, much less interesting, about Mr. Carter’s appeal.

But Judge Posner thought differently, and he took the opportunity not only to write Carter v. Homeward Residential, Inc., No. 15-1156 (7th Cir. July 23, 2015), but to call on the Supreme Court to reconsider its decision in Hagans v. Levine, 415 U.S. 528 (1974).

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It’s Time to Rewrite Wisconsin’s Single-Party Listing Agreement

house for sale

A note to the drafters of Wisconsin’s single-party listing contract: It’s time to redefine what triggers the payment of a commission under the contract after a recent decision of Wisconsin’s supreme court in Ash Park, LLC v. Alexander & Bishop, Ltd, 2015 WI 65, where the court permitted a broker to collect its commission, despite never having delivered a viable buyer.

Ash Park is no stranger to the appellate courts in Wisconsin. The case first wound its way through the courts over five years ago when the buyer, Alexander & Bishop, failed to perform on a contract to purchase a vacant parcel of land for $6.3 million from the seller, Ash Park. The supreme court’s first foray into the dispute, Ash Park, LLC v. Alexander & Bishop, Ltd., 2010 WI 44, affirmed the award of specific performance in favor of Ash Park.

Specific performance is an extraordinary remedy, but, if the buyer doesn’t have the cash, which was the case with Alexander & Bishop here, it’s also a toothless remedy. The third branch might have a considerable number of powers, but printing money still wasn’t one of them when we last checked.

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Seventh Circuit: "Frivolous" Argument Saves Jurisdiction


The Seventh Circuit issued an important opinion by Judge Easterbrook today, Lu Junhong v. Boeing Co., No. 14-1825, a clump of cases that arose after an Asiana Airlines jet manufactured by Boeing struck a seawall while landing on a runway at San Francisco International Airport two years ago, at the end of a flight from Seoul. The opinion holds that tort actions arising out of transoceanic flights will often (perhaps usually) fall within the federal district courts’ admiralty jurisdiction, under 28 U.S.C. § 1333(1).

While Wisconsin is next to a couple of the Great Lakes, so that that holding may affect some future tort case here, the aspect of the opinion that we want to comment on is a question of appellate jurisdiction with wider potential significance. To reach the admiralty jurisdiction issue, the Seventh Circuit had to get past the prohibition in 28 U.S.C. § 1447(d) of appellate review of remand orders (“not reviewable on appeal or otherwise”). The cases against Boeing had been filed in Illinois state courts and removed to the district court in Chicago, which remanded them, having determined that there was no jurisdiction under either the admiralty statute or 28 U.S.C. § 1442(a)(1). The latter statute allows removal from state court of a civil action brought against an officer of the United States or one of its agencies for acts under color of office and further extends to “any person acting under that officer.” Boeing’s argument was that it was “acting under” the Federal Aviation Administration when it analyzed and tested the autopilot and autothrottle system that the plaintiffs claimed failed to function properly.

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Seventh Circuit Takes on Dairy Parlors, Damages, and Dealerships


A recent Seventh Circuit opinion written by Judge Posner addresses both the covenant of good faith and fair dealing and some issues of damages proof in a particularly appropriate Wisconsin context: dairy-equipment dealerships.

The dispute in Tilstra v. BouMatic LLC, No. 14-3333 (7th Cir. June 30, 2015), arose after BouMatic, a Wisconsin dairy-equipment manufacturer, decided that Tilstra, its long-time dealer in “arguably the richest dairy county in Canada,” was doing “a poor job with his territory” and began to pressure the dealer to sell—allegedly by threatening to stop supplying him or to modify or eliminate his sales territory. The next month, Tilstra sold out to an adjacent dealership for just over half of what he believed his dealership was worth.

Tilstra’s suit against BouMatic alleged tortious interference and breach of the covenant of good faith and fair dealing with respect to the dealership contract’s requirement of 90 days’ written notice and good cause for termination. Tilstra’s good-faith claim was the only one to survive a motion to dismiss, but a jury found for Tilstra and awarded him $471,124 in damages.

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Seventh Circuit Chastises Lawyer for Raising Too Many Issues on Appeal (Among a Litany of Other Missteps)


Not much went right for the plaintiffs’ lawyer in the Seventh Circuit’s decision yesterday in Pierce v. Visteon Corp., No. 14-2542 (7th Cir. July 1, 2015), but the opinion provides a few good lessons for appellate practitioners. Judge Easterbrook wrote for the court, in an opinion joined by Chief Judge Wood and Judge Flaum.

The appeal concerned Visteon’s violation of the Consolidated Omnibus Budget Reconciliation Act of 1985, or COBRA as it is more commonly known, and the $1.85 million that the district court awarded to a class of 741 former Visteon employees, in addition to approximately $303,000 of attorneys’ fees and costs. The plaintiffs’ appeal, as the court summarized it, “contend[ed] that the penalties are too low, the class too small, and the attorneys’ fees too modest.”

Unfortunately plaintiffs’ counsel turned those three simple arguments into 13 distinct issues for decision in his merits brief, “violating the principle that appellate counsel must concentrate attention on the best issues.”

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