Tag Archives: Appeals

Facebook Forced To Turn Over Account Info, Photos, and Conversations

The New York Court of Appeals, its highest state court, approved in a 5-1 decision a search warrant that forces Facebook to turn over material on 381 accounts including account information, private photos, and conversations.  This ruling is based significantly on New York law which the court interpreted to mean search warrants issued by judges cannot be appealed to a higher court and the proper venue for challenging search warrants is during a pretrial hearing when a party argues the search warrant is an illegal search.

Read more about this case in this New York Times article here.  The underlying case deals with disability fraud and the Brennan Center provides a concise summary, along with its amicus brief, on its website available here.

One could argue that this opens the door to New York search warrants giving prosecutors access to users’ data on other social networking sites.

The full slip opinion is available here.

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Lawyers Who Argue in front of the Supreme Court

On Christmas, the New York Times published an editorial about the select group of lawyers who practice and argue in front of the U.S. Supreme Court.  Here is an excerpt of the article:

“Those are the central findings of The Echo Chamber, a comprehensive analysis of about 10,300 petitions [of cases to be heard in front of the Supreme Court] filed by private attorneys between 2004 and 2012. Reuters found that the lawyer’s name on the brief was among the strongest predictors of whether the justices would take a case.

While the 66 lawyers Reuters identified represented less than one half of 1 percent of all lawyers who petitioned the court during that period, they were involved in 43 percent of the cases the justices heard.

That elite cohort is as homogeneous as it is powerful: 63 of the 66 lawyers were white, 58 were men, and 51 worked for firms with primarily corporate clients.

An even more elite group — eight lawyers — made almost one of every five arguments the court heard from private attorneys during those years. “

It was something I never considered, until now, about the practice.  The full New York Times article, titled “The Best Lawyers Money Can Buy” by The Editorial Board, is available here.

The original Echo Chamber article, titled “At America’s court of last resort, a handful of lawyers now dominates the docket” by Joan Biskupic, Janet Roberts, and John Shiffman, is available here.  The original article, published in earlier December 2014, shares some shocking figures:

“Typically, the Supreme Court agrees to hear just 5 percent of the petitions filed by private attorneys. It accepts 21 percent of the cases bearing the name of a leading advocate.

“They basically are just a step ahead of us in identifying the cases that we’ll take a look at,” said Justice Anthony Kennedy. “They are on the front lines and they apply the same standards” as the justices do.

Some scholars say reliance on the expert bar has made for a far more insular court. “We don’t want the justices to filter cases through advocates,” said Jenny Roberts, associate dean at American University’s law school. “If this is happening, delegating the discretion of cases to a sort of sub-Supreme Court when so much is at stake is troublesome. It’s fine if you trust and agree with those in control, but what happens when you don’t?””

Some Supreme Court food for thought.

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New Bankruptcy Filing Fees for Massachusetts

Effective December 1, 2014, the U.S. Bankruptcy Court of Massachusetts will be increasing some of their fees.  Most notably, the Bankruptcy Court emphasized these two changes in an email message:

  • An increase to $207 upon acceptance of a direct bankruptcy appeal to the Court of Appeals.
  • A new $25.00 fee to file a Motion to Redact Previously Filed Records in a Bankruptcy Case.

A full listing of bankruptcy fees can be accessed here.

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Case Blurb: U.S. Bank v. Edna and John Schumacher

U.S. Bank National Association v. Edna and John Schumacher is scheduled for oral arguments in front of the Supreme Judicial Court (SJC) on Thursday, November 7th.  If you want to watch the live streaming of the oral arguments, Suffolk Law has a webcast available here.  Suffolk Law also archives webcasts in case you are not available at the exact time the video is real-time broadcasted.

U.S. Bank v. Schumacher is a post-foreclosure case that was originally argued in the Worcester Housing Court before it was transferred sua sponte from the Appeals Court to the SJC.  In the Worcester Housing Court, Judge Sullivan ruled in favor of U.S. Bank.  Mr. Schumacher was originally represented by the Alliance for Affordable Housing.  When Mr. Schumacher appealed, he obtained legal representation with Harvard Law School’s Legal Services Center.  U.S. Bank was originally represented by Harmon Law Offices.  U.S. Bank is currently represented by Nelson Mullins in the SJC matter.

In this case, Mr. Schumacher argues that the foreclosure is void because the Bank failed to fully comply with M.G.L. c. 244, sec. 35A.  Pushing for strict compliance of the statute, the Appellant emphasizes that the right to cure letter that was mailed to him did not state the name of the mortgage holder of record.  In contrast, U.S. Bank argues that substantial compliance is enough.  Through out Massachusetts, the courts are split on the interpretation of this particular law.

In addition to the appellant and appellee briefs that were filed, several amicus briefs were submitted in support of both sides.  For the Plaintiff/Appellee U.S. Bank, the Real Estate Bar Association for Massachusetts (REBA) and the Abstract Club wrote a combined brief.  For the Defendant/Appellant Mr. Schumacher, Community Legal Aid, the National Consumer Law Center, and the Massachusetts Attorney General’s Office submitted three separate briefs.  The docket and electronic versions of the amicus briefs are available here.

In addition, Brandon Gee at Mass Lawyers Weekly recently published an article titled, “SJC to Consider Foreclosure Sale Notice Mistakes,” regarding the U.S. Bank v. Schumacher case.  The publication is available here, but you will need a subscription to access the full article.  Gee wrote in the piece:

[I]n an amicus brief submitted in support of the defendant-appellant, Community Legal Aid Inc. says the mistakes being made are more than mere technicalities and that strict compliance must be required.

Community Legal Aid attorneys Allen Acosta, Sora J. Kim and Uri Y. Strauss argue in the brief that one of the purposes of the notices was to allow the Division of Banks to develop a database to track foreclosure activities by particular lenders, brokers and servicers. Even if a mistake identifying the players has no practical impact on individual foreclosures, it undermines the monitoring effort, the organization contends.

Community Legal Aid says mistakes are widespread and varied and have included notices that list incorrect telephone numbers, that have been sent to the wrong people, that have identified the wrong mortgage, and that have included the incorrect amount of money required to cure a default.

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Thomas Tang Moot Court Competition

On October 13, 2012, I had the privilege to be one of the judges at the Thomas Tang Moot Court (TTMC) Competition at Northeastern University.  The National Asian Pacific American Bar Association (NAPABA) hosts the annual TTMC Competition which is for law students who want to hone their skills on appellate written and oral advocacy.  This year, the competition was fierce and well prepared.  I was very impressed by everyone who argued.

The finalists, who traveled to Boston from all over the Northeast region to compete at the Northeastern University School of Law, will perform at Nationals this week in Washington, DC.  The final round of the TTMC Competition will occur at the NAPABA Annual Conference on November 16 and November 17, 2012.

If you’re interested in reading about the case problem, check out the TTMC Competition website here.  If you are curious about the NAPABA Annual Conference, the schedule and events listing is available here.

Judges for the Thomas Tang Moot Court Competition on October 13, 2012

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Louboutin Wins Trademark Protection, But Loses Injunction

Fashionistas and stylistas are familiar with the trendy, expensive, red soles and high heeled shoes designed by Christian Louboutin.  Earlier this week, the Second Circuit U.S. Court of Appeals in New York granted trademark protection to Louboutin’s red-soled, high heeled shoes.

Initially, Louboutin’s brand name filed a preliminary injunction against Yves Saint Laurent America Inc. (“YSL”) from selling shoes that are all red because the YSL shoes include an outer red sole which Louboutin alleges as their trademark.  In August 2011, Judge Marrero in the Southern District of New York denied Louboutin’s injunction.  On appeal, the preliminary injunction was again denied and the case was sent back to district court.

However, the Second Circuit judges clarified that Louboutin’s shoes are entitled to a limited trademark protection.  Specifically, the trademark protection applies to the “red lacquered outer sole that contrasts with the color of the rest of the shoe and not to shoes that are monochromatically red.”  Read the full Bloomberg Businessweek article by Don Jeffrey and Cotten Timberlake here.  Jeffrey and Timberlake quote the decision,

The district court’s conclusion that a single color can never serve as a trademark in the fashion industry was based on an incorrect understanding of the doctrine of aesthetic functionality,” U.S. Circuit Judge Jose Cabranes wrote in today’s decision. “We conclude that the trademark, as thus modified, is entitled to trademark protection.

Chad Bray of the Wall Street Journal expounds upon the decision by stating,

Louboutin may have lost the fight against Yves Saint Laurent’s monochromatic shoe, but won a much broader battle over the use of its iconic color, according to trademark experts.

The full article is available here.

Since the justices believe that granting broad rights to the color red harms competition in the fashion industry, the injunction was denied and YSL will continue to produce red shoes with red outer soles.

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Affordable Care Act Upheld as Constitutional

The Supreme Court of the United States (SCOTUS) is live blogging about the recent Affordable Care Act decision that was upheld as constitutional.  To access the SCOTUS Live Blog website, go here.  Here is a link to the full case decision.  If you do not want to read all 198 pages of National Federation of Independent Business v. Sebelius, Secretary of Health and Human Services, then CNN does a nice recap and condensed version about the key facts of the decision and how it impacts Americans.  CNN’s article is available here.

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Highest Court in the Land

Fun fact about the Supreme Court: above the Great Hall and the courtroom is a basketball court.  The basketball court is referred to as the highest court in the land.

The U.S. Supreme Court on a sunny day.

The U.S. Supreme Court on a sunny day.


Home of the highest court in the land.

Home of the highest court in the land.

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