Seventh Circuit Offers No Relief for United Airlines' "Million Milers"

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For years United Airlines has asked its customers to “Fly the Friendly Skies,” but a dispute with one of its frequent flyers turned decidedly unfriendly and became the subject of a recent case before the Seventh Circuit in Lagen v. United Continental Holdings, Inc., No. 14-1375 (7th Cir. Dec. 22, 2014).

The case has an interesting exposition of the law that governs airlines’ frequent-flyer programs, but what was unusual was the stinging dissent written by Judge Hamilton, in which he called out United’s CEO and general counsel by name and accused the airline of failing to “defend[] this lawsuit honorably.” Fly the friendly skies, indeed.

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Seventh Circuit Uses Rule 9(b) to Dismiss False Claims Act Case

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The Seventh Circuit has been on quite a tear recently with cases involving the False Claims Act; we wrote about three of them, involving the federal assignment law, the worthless-services doctrine, and the public-disclosure bar, last year.

The latest in this string of cases is United States ex rel. Grenadyor v. Ukrainian Village Pharmacy, No. 13-3383 (Dec. 3, 2014), a decision written by Judge Posner, in which the court affirmed the dismissal of the relator’s complaint for failure to plead his false claim with sufficient particularity under Fed. R. Civ. P. 9(b).

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Seventh Circuit Analyzes Its Jurisdiction under the Panama Convention

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International arbitration can be tricky, and it’s not often that the Seventh Circuit has an opportunity to analyze the grounds for its jurisdiction in this area. That makes the court’s recent decision in Pine Top Receivables of Illinois v. Banco de Seguros del Estado, Nos. 13-1364 & 13-2331 (7th Cir. Nov. 7, 2014), a unique case worth remembering.

The case began when Pine Top sought to compel arbitration by filing a complaint in the Northern District of Illinois against Banco de Seguros del Estado, an entity wholly owned by Uruguay. The dispute concerned approximately $2.3 million that Pine Top claimed Banco owed under reinsurance contracts. The district court denied the motion to compel, and Pine Top took an interlocutory appeal under 9 U.S.C. § 16, as it was authorized to do under that part of the Federal Arbitration Act. Or was it?

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More Confusion in Wisconsin's Supreme Court?

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We wrote earlier this week about the new opinion drafting procedure in Wisconsin’s supreme court. To recap, the state’s justices voted 4-3 earlier this term to impose deadlines on the drafting process, presumably in response to the recent trend in which most of the court’s work has been released in the final weeks of its term.

We also noted that Chief Justice Abrahamson and Justice Bradley have been critical of the new procedure’s effect on separate writings, claiming that the inflexible deadlines kept the court from harmonizing its views in related cases. We thought that that problem perhaps could have been solved by assigning similar cases, especially if argued on the same day, to one justice—instead of, as it happened the other day, assigning three cases on closely related issues to three different justices under the court’s quirky “poker chip” assignment system.

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Wisconsin Supreme Court Puts Some Teeth Into Opinion Drafting Rules

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An unusual thing happened earlier this month at the Wisconsin Supreme Court. Ramon Gonzalez, an inmate, was tried for a fight in the Milwaukee County Jail. To assist the jury in identifying Gonzalez as a participant in the fight, the judge ordered him to show his teeth to the jury. This revealed the dental modifications for which Gonzalez had received the nickname “Platinum.” The single issue on appeal was whether compelling him to show his teeth violated his Fifth Amendment privilege against self-incrimination. The issue was not a difficult one, and the court decided 7-0 that Gonzalez’s rights had not been violated. State v. Gonzalez, 2014 WI 124.

The opinion was unusual because the only separate opinion, by Chief Justice Abrahamson, contained not a single word about the merits of the Gonzalez case. Rather, the Chief Justice described in detail recent changes by the court to its opinion drafting process that have the potential to make the recent “unusual” release of a significant number of opinions within the first five months of the term commonplace. On September 25 of this year, the court adopted a new procedure for opinion drafting.

As the “concurrence” (can a concurrence ignore the case in which it is issued?) and the court’s published Internal Operating Procedures explain, the court’s previous practice for preparing opinions was as follows:

  • After oral argument, the court assigned opinions to the justices by drawing numbered poker chips.
  • The justice assigned the majority opinion circulated a draft to the other justices.
  • This draft opinion was discussed in the conference room by all seven justices. At conference, justices approved opinions, decided to concur or dissent, and revised opinions, until all opinions were satisfactory (in form, at least) to all seven members of the court.
  • Each justice had a virtually unfettered right to “hold” an opinion indefinitely, preventing release of the court’s opinion

All that changed in September when the court voted internally to adopt a new procedure. The vote to adopt the procedure was 4 to 3, with Justices Crooks, Roggensack, Ziegler, and Gableman in favor and the Chief Justice and Justices Bradley and Prosser opposed. The written description of the new procedure is clearly a work-in-progress, obviously not drafted for public release, with parenthetical notes regarding describing the problems that the majority was trying to fix. The written procedure also contains gaps to be filled in as the term progresses. Continue reading this entry