Monday, March 24, 2014

Penal Law Rule 

In an interpleader action brought by the United States, the District Court granted summary judgment to Brazil, one of the parties who claimed entitlement to certain funds, holding that Brazil was entitled to the funds under a Brazilian forfeiture law, which was grounded in Brazil criminal law.  The other parties seeking the money claimed that summary judgment was not appropriate in that enforcement of the forfeiture law violated the common law penal law rule under which a country will not enforce the penal laws of another country.  On appeal, the Second Circuit held that summary judgment had been improperly granted based on the penal law rule, however, it also held that because Brazil was seeking assistance from the United States Attorney General in enforcing its forfeiture judgment, pursuant to 28 U.S.C. 2467, the District Court should allow Brazil and the Attorney General time to complete this process before taking further action in the case.

The decision in United States v. The Federative Republic of Brazil can be found here.

Tuesday, November 19, 2013


The Second Circuit upheld the decision of the District Court and held that a company's use of its "Mr. Charbucks" and "Charbucks Blend" trademarks is not likely to dilute by blurring Starbuck's trademarks.

The decision in Starbucks Corp. v. Wolfe's Borough Coffee, Inc. can be found here.

Wednesday, October 16, 2013

Statutes of Limitations in CERCLA Actions 

If the State brings a remedial action -- that is, measures to permanently remediate hazardous wastes --   under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), the statute of limitations begins to run by the commencement of cleanup construction.  If a State brings a removal action -- that is, measures taken to address immediate threats to public health -- the statute of limitations begins to run at the completion of the removal action.

In State of New York v. Next Millenium Realty, LLC, a case involving pollution emanating from the New Cassel Industrial Area in the Town of Hempstead, the District Court had held that the action was a remedial action, and granted summary judgment to the defendants, claiming that the limitations period had run.  The Second Circuit disagreed, holding that it was a removal action and that because the removal action was not complete, the statute had not even begun to run.  The Court found that the actions taken by the state were taken to address an immediate threat to public health and did not permanently remediate the environmental problem at issue.  Hence, the case was not time barred.

The decision in this case can be found here.

Wednesday, October 09, 2013


An attorney who informed the Court that her client had asserted a gender discrimination case when he had not, and who was sanctioned sua sponte by the District Court got a break from the Second Circuit.    When a Court sanctions Rule 11 sanctions sua sponte, the standard is different.  When a party moves for Rule 11 sanctions, the standard as to whether sanctions should be imposed is the subjective unreasonableness of the attorney's conduct.  However, because a sua sponte decision to sanction an attorney under Rule 11 does not provide the 21-day safe harbor protection, which allows the attorney to correct his or her conduct, the standard is different.  The Second Circuit has held that the standard is subjective bad faith.  The Court found that the record could not support a finding of bad faith and reversed and vacated the District Court's decision imposing sanctions.

The decision in Muhammad v. Walmart Stores East, L.P. can be found here.

Tuesday, August 13, 2013

Senior Judge Joseph McLaughlin 

Second Circuit Senior Judge Joseph McLaughlin died on August 8, 2013 at age 80.  The Judge was appointed to the bench by Ronald Reagan in 1981 as a district judge of the Eastern District of New York and was elevated to the Second Circuit by George H.W. Bush.

Thursday, May 23, 2013

More certified questions -- Turnover order 

The Second Circuit has certified two questions to the New York Court of Appeals. The questions are:

(1) May a court issue a turnover order pursuant to N.Y. CPLR § 5225(b) to an entity that does  not have actual possession or custody of a debtor’s assets, but whose subsidiary might  have possession or custody of such assets?

(2) If the answer to the above question is in the affirmative, what factual considerations
should a court take into account in determining whether the issuance of such an order is

The decision in Commonwealth of the Northern Marina Islands v. Canadian Imperial Bank of Commerce can be found here.

Certified Question -- Coverage for Replacement Costs 

The Second Circuit has certified a question to the New York State Court of Appeals.  The question is:

If a fire insurance policy contains (1) a provision allowing reimbursement of replacement costs only after the property was replaced and requiring the property to be replaced "as soon as reasonably possible after the loss"; and (2) a provision requiring an insured to bring suit within two years after the loss; is an insured covered for replacement costs if the insured property cannot reasonably be replaced within two years?

The decision is Executive Plaza, LLC v. Peerless Insurance Co. can be found here.

Monday, May 13, 2013


Don't neglect your deadlines in the Second Circuit; you may not get a second chance.  The Second Circuit denied an appellant's motion to reinstate its appeal after it had missed a filing deadline.  And the opposing party had not even opposed the motion; on the contrary, it had consented.  The Court noted that the motion for reinstatement did not "append to it  appellant’s proposed brief or an appropriately detailed statement
demonstrating that the appeal is meritorious. Indeed, it does  not even mention the merits of the appeal, an important factor in  determining whether reinstatement of an appeal is appropriate. "  This is another "don't let this happen to you" case.

The decision in RLI Insurance Co. v. JDJ Marine, Inc. can be found here.

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