Category Archives: Seventh Circuit

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Seventh Circuit Determines that Service-of-Suit Clauses Can Waive Statutory Right of Removal

Pine Top Receivables has returned to the published opinions of the U.S. Court of Appeals for the Seventh Circuit. We previously wrote about Pine Top’s successful attempt to compel arbitration with a Uruguayan company and the intersection of the Federal Arbitration Act and the Panama Convention. Pine Top was again before the Seventh Circuit in … Continue reading this entry

Coming Up Short: When There Aren't Enough Judges Eligible To Rehear A Case En Banc

Every now and then we see something in the reported decisions of the U.S. Court of Appeals for the Seventh Circuit that seems noteworthy because we’ve never seen it before. The following is one such example. Seventh Circuit Rule 40(e) is entitled “Rehearing Sua Sponte before Decision,” and it provides, in relevant part, that a … Continue reading this entry

Seventh Circuit Reverses Promotional Service Decision Under the Robinson-Patman Act

On August 12, 2016, the Seventh Circuit decided Woodman’s Food Market, Inc. v. Clorox Co., No. 15-3001, and held that Clorox’s refusal to sell bulk-sized packages of certain products to some retailers, like Woodman’s, when it sold bulk-sized items to “big box” retailers, like Costco and Sam’s Club, was not a violation of the Robinson-Patman … Continue reading this entry

Seventh Circuit Ditches “Convincing Mosaic” Standard in Employment Cases

In the past, we have counseled our clients on steps they can take to avoid creating a “convincing mosaic” of employment discrimination. The Seventh Circuit Court of Appeals first discussed the convincing mosaic of discrimination more than 20 years ago as a metaphor to explain one way that an employee could combine lots of different … Continue reading this entry

Seventh Circuit Cuts Through First Amendment Forum Jargon and Issues Robust Defense of Free Expression

Like many cities across the country, Fort Wayne, Indiana raises money through advertisements that it sells on the inside and outside of the buses it operates. And like many cities, Fort Wayne has a number of regulations on the content of those ads. Most of these regulations are uncontroversial – think of prohibitions on images … Continue reading this entry

The Seventh Circuit Empowers Litigants to Revisit Class Definitions

Class actions, and Rule 23 of the Federal Rules of Civil Procedure, have long been rife with controversy. It’s safe to assume that the Seventh Circuit’s decision last week in Fonder v. Sheriff of Kankakee Cnty., No. 15-2905 (7th Cir. May 26, 2016), will likely garner mixed reviews from the bar. Fonder is a reminder … Continue reading this entry

Seventh Circuit Rejects Plaintiffs’ Chain-of-Causation Theory of Personal Jurisdiction

Although spring-break season is officially over, a recent Seventh Circuit decision offers a lesson to vacationers: When choosing your next vacation destination, make sure it’s somewhere you would be willing to visit again. You might need to litigate there. In Noboa v. Barceló Corporación Empresarial, SA, 812 F.3d 571 (7th Cir. 2016), the Seventh Circuit … Continue reading this entry

Beware the Scrollable Window: The Seventh Circuit Strikes Down an Internet Contract

If you’re like us—and most others, we’ll venture to guess—you’ve never read all the terms and conditions of the iTunes end-user license agreement. We doubt that it’s a scintillating read, but, regardless, most consumers don’t slog through these contractual tomes because they have better things to do. Apple and others in the world of e-commerce … Continue reading this entry

Seventh Circuit Reinforces the Importance of Memorializing Agreements in Mediation

Put it in writing. How many times have those four words been uttered in the course of commerce? Many more than we care to count, to be sure. For the fact remains that the act of putting pen to paper, ribbon to page, or transmitting bits in a particular fashion (the complicated subsurface of modern … Continue reading this entry

Seventh Circuit Applies Strong Business Judgment Rule to Reject Assertion of Demand Futility

In a recent decision in a diversity case, the Seventh Circuit deferred to a state legislature’s “strongly pro-management version of the business judgment rule,” rejecting a derivative claim filed by shareholders in an Indiana corporation who had failed to make a demand on the corporation’s board of directors. In re: Biglari Holdings, Inc. Shareholder Derivative … Continue reading this entry

In re Sentinel Management: The Seventh Circuit Considers Equitable Subordination

Equitable subordination in bankruptcy can be a powerful tool, providing a court with considerable latitude to set things right insofar as the estates of the penniless and the rights of their creditors are concerned. But it’s also a doctrine more frequently discussed than applied (even 11 U.S.C. § 510(c)(1), the statute authorizing the remedy’s use, offers … Continue reading this entry

Seventh Circuit Reins in EEOC: Agency Cannot Bypass Conciliation Requirement

On December 17, the Seventh Circuit in U.S. Equal Employment Opportunity Commission v. CVS Pharmacy, Inc., No. 14-3653 (7th Cir. Dec. 17, 2015), rejected the EEOC’s aggressive effort to sue an employer without engaging in conciliation or even alleging discrimination or retaliation. Employers—at least in Wisconsin, Illinois, and Indiana—can breathe a little easier now that … Continue reading this entry

Split Circuit: Seventh Circuit Debate over Judicial Internet Research Ends in a Tie

The results are in this afternoon in the Seventh Circuit’s vote to rehear en banc Rowe v. Gibson, No. 14-3316 (Aug. 19, 2015), and it was a close one, a 4-4 tie, which means that the majority’s opinion stands, though not without an extraordinary exercise in defensiveness by the panel majority (but more on that below). A … Continue reading this entry

Seventh Circuit Reverses Order Denying Costs Because the Case Was “Close”

Can federal courts deny a prevailing party litigation costs because it was a close case? According to the Seventh Circuit’s recent opinion in United States ex rel. Pileco, Inc. v. Slurry Systems, Inc., No. 14-1267 (7th Cir. Oct. 28, 2015), written by Judge Richard Posner, the answer is “yes,” though only under limited circumstances, when … Continue reading this entry

Much Ado About Nothing: The Defense of Judge Posner’s Internet Research

All the briefs are filed, and the next step in the saga of Rowe v. Gibson, No. 14-3316 (Aug. 19, 2015), is for the nine judges in regular active service on the Seventh Circuit to cast their votes in favor of or against rehearing the case en banc. We first wrote in August about Rowe, a decision written … Continue reading this entry

The Seventh Circuit Applies the Erie Doctrine to Minor Settlements

For the purposes of the Erie doctrine, which directs federal courts sitting in diversity to apply state substantive law and federal procedural rules, “damages law is substantive law,” and that includes the law that governs judicial approval of settlements with minors, according to In re Williams, Bax & Saltzman, P.C., No. 13-2434 (Nov. 5, 2015), … Continue reading this entry

Judicial Internet Research: Dr. Posner Faces Peer Review

Last month, we wrote about the Seventh Circuit’s decision in Rowe v. Gibson, No. 14-3316 (Aug. 19, 2015), a decision written by Judge Richard Posner that created considerable controversy regarding the propriety of internet factual research by appellate courts. Now it appears that Judge Posner’s colleagues will have the opportunity to critique his methodology. Judge … Continue reading this entry

“When in Doubt, Disclose”: Seventh Circuit Levies Sanctions for Undisclosed Class Conflict in Southwest Airlines Voucher Litigation

The Seventh Circuit’s message to the bar in Levitt v. Southwest Airlines Co. (In Re: Southwest Airlines Voucher Litigation), No. 13-3264 (7th Cir. Aug. 20, 2015), was “short and simple: when in doubt, disclose.” Slip Op. at 27. The court delivered this message in an opinion by Judge David Hamilton, while meting out monetary sanctions for … Continue reading this entry

A Defendant Can Get Summary Judgment Without Producing Evidence

The Supreme Court explained in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), that a party can obtain for summary judgment when its opponent has no evidence to support an element of the opponent’s case. Justice Brennan’s dissent warned then that the opinion would “create confusion” among district courts. Fast forward nearly thirty years, and that “confusion” … Continue reading this entry

Dr. Posner Will See You Now: 7th Circuit Judges Reignite a Spirited Debate over Judicial Internet Research

The fat was really thrown into the fire in the Seventh Circuit yesterday on the long-mooted subject of the propriety of internet factual research by appellate courts. Judge Richard Posner, who often chafes (both in opinions and extra-judicially) at what he sees as the “inadequacy” of the facts presented to the court by counsel and … Continue reading this entry

After Further Review: 7th Circuit Strikes Down Anti-Panhandling Law; Concurrence Muses on First Amendment’s Effect on Laws Restricting Speech on Religion, Abortion

What do panhandlers and pro-life demonstrators have in common? According to Circuit Judge Daniel Manion of the Seventh Circuit, the First Amendment now makes it tougher to silence the voice of either in the public square. Last Friday, in Norton v. City of Springfield, No. 13-3581, Judge Frank Easterbrook, writing for the Seventh Circuit, found … Continue reading this entry

Seventh Circuit Channels the Fugitive in Chastising Marshals Service

Ordinarily, a civil plaintiff must make his own arrangements to serve the defendant. But under Rule 4(c)(3) of the Federal Rules of Civil Procedure, the district court “may order that service be made by a United States marshal or deputy marshal or by a person specially appointed by the court.” And where the plaintiff proceeds … Continue reading this entry

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 … Continue reading this entry