Tenth Circuit Notes Intra-Circuit Split Re Whether Review of Sufficiency-of-the-Evidence Issue is Legal or Factual Determination

Per Hicks v. Jones, Slip Copy, 2008 WL 5378335 (N.D.Okla. Dec. 24, 2008):

A writ of habeas corpus will not issue unless the state court's legal conclusions are “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or the state court's factual conclusions are “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” § 2254(d)(2). “[A] determination of a factual issue made by a State court shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). Tenth Circuit authority is divided as to “whether, under AEDPA, we review a sufficiency-of-the-evidence issue as a legal determination under 28 U.S.C. § 2254(d)(1) or a factual finding under § 2254(d)(2) and (e)(1).” Romano v. Gibson, 239 F.3d 1156, 1164 n. 2 (10th Cir.2001); see also Dockins v. Hines, 374 F.3d 935, 939 (10th Cir.2004); Torres v. Mullin, 317 F.3d 1145, 1151 (10th Cir.2003). Under either standard, Petitioner's claim in this case fails.

N.D. Ill. Notes Split Re Whether Pension Plan Has Standing to Sue for Delinquent Payments under ERISA

Per Line Const. Ben. Fund v. Allied Elec. Contractors, Inc., Slip Copy, 2008 WL 5101989 (N.D. Ill. Nov. 26, 2008):

Defendant contends that Plaintiff, a plan rather than a group of trustees, lacks standing to bring an action for unpaid contributions. Defendant's argument rests in part on a split in authority among the circuits as to whether a plan itself is a fiduciary within the meaning of ERISA. For example, the Sixth Circuit held that a plan has standing to bring a counterclaim for collection of unpaid contributions because “[t]he Plan, as a party before the court, necessarily includes those who must act for the Plan to administer it and to effectuate its policies.” Saramar Aluminum Co. v. Pension Plan for Employees of Aluminum Industry and Allied Indus. of Youngstown Ohio Metro. Area, 782 F.2d 577, 581 (6th Cir.1986). By contrast, the Ninth Circuit distinguishes plans from their fiduciaries, reasoning that a fund cannot be a fiduciary of itself. Local 159, 342, 343 & 444 v. Nor-Cal Plumbing, Inc., 185 F.3d 978, 981 (9th Cir.1999). In Nor-Cal Plumbing, the court recognized that a trust fund “could qualify as a fiduciary of a separate ERISA plan so long as it exercises discretionary authority over the management or administration of the plan or its assets.” Id. at 982. The trust fund in that case, however, did not have standing to sue because it was not a separate entity from the plan itself. Id. (noting that “the Trust Agreement and the Trust Funds' complaint treat them as one and the same”). The Second Circuit, similarly, employs a strict textualist approach, interpreting the language of the statute as not explicitly authorizing pension funds to assert a cause of action for breach of fiduciary duty and denying standing on that ground. Pressroom Unions-Printers League Income Sec. Fund v. Continental Assur. Co., 700 F.2d 889, 891 (2d Cir.1983) (denying pension fund standing to sue under ERISA for breach of fiduciary duty by defendant insurance companies that allegedly charged excessive premium payments and fees to the fund).

. . .

This court concludes that a pension plan has standing to sue for delinquent payments under ERISA. The court hereby denies Defendant's motion to dismiss on this ground is denied.

E.D.N.C. Reports Circuit Split: Are Title 11 Debtor Duties Options Exclusive?

Per Coastal Federal Credit Union v. Hardiman, 2008 WL 4899529 (E.D.N.C. Oct 28, 2008):

[T]he Fourth Circuit rejected the Seventh Circuit's conclusion that the three options in section 521(a)(2)(A) were exclusive. The Fourth Circuit noted, inter alia, that the Seventh Circuit's analysis rested on another case which reasoned in part from the premise that ipso facto clauses were enforceable in that circuit. See id. at 347-18 (rejecting Edwards and its reliance on In re Bell, 700 F.2d 1053 (6th Cir.1983)).

In so holding, the Fourth Circuit chose its side in a vigorous circuit split. This circuit split persisted for over fifteen years. See Donald, 343 B.R. at 530-31. The Supreme Court never resolved whether the three options listed in section 521(a)(2)(A) were exclusive, or whether there was a "fourth option." Rather, this issue was the subject of ten different decisions of the courts of appeals. Five courts of appeals held that a debtor is not limited by the options enumerated in current section 521(a)(2)(A). Five others held to the contrary.

[FN7] In re Price, 370 F.3d 362, 379 (3d Cir.2004) (explaining that current section 521(a)(2)(A) is merely a notice provision); In re Parker, 139 F.3d 668, 673 (9th Cir.1998) ("The debtor's other options remain available...."); In re Boodrow, 126 F.3d 43, 51 (2d Cir.1997) (explaining that current section 521(a)(2)(A) "appears to serve primarily a notice function, not necessarily to restrict the substantive options available to a debtor"); Belanger, 962 F.2d at 347-18 ("Nothing in [current] section 521[a](2)(A) requires the debtor to choose redemption, reaffirmation or surrender of the property to the exclusion of all other alternatives...."); Lowry Fed. Credit Union v. West, 882 F.2d 1543, 1547 (10th Cir.1989) ("[W]e do not believe those provisions make redemption or reaffirmation the exclusive means by which a bankruptcy court can allow a debtor to retain secured property.").

[FN8] Four courts of appeals rejected the ride-through option. In re Burr, 160 F.3d 843, 849 (1st Cir.1998) ("[W]e believe that [current] 11 U.S.C. § 521 [ (a) ](2) unambiguously requires chapter 7 debtors wishing to retain property of the estate that secures a consumer debt to elect one of the retention options specified...."); In re Johnson, 89 F.3d 249, 252 (5th Cir.1996) (per curiam) ("[D]ebtors are limited to the three options set forth in the statute."); In re Taylor, 3 F.3d 1512, 1517 (11th Cir.1993) ("[W]e hold the plain language of [current] 11 U.S.C. § 521 [ (a) ](2) does not permit a Chapter 7 debtor to retain the collateral property without either redeeming the property or reaffirming the debt...."); Edwards, 901 F.2d at 1387 ("[W]e hold that [current] 11 U.S.C. § 521 [ (a)(2) ] requires a debtor to choose between the reaffirmation, redemption or surrender of property...."). Additionally, the Sixth Circuit rejected an argument that approximated ridethrough shortly before Congress amended the Bankruptcy Code in 1984 to include the language that gave rise to the ride-through dispute. See Bell, 700 F.2d at 1054-55, 1058 (rejecting argument that debtor may "redeem" property by making installment payments); see also Taylor, 3 F.3d at 1515 n. 3 ("The Sixth Circuit decided Bell the year before Congress passed the 1984 Amendments to the Bankruptcy Code.").

Circuit Split Widens on Aggravated Felony Issue

Per BNA's U.S. Law Week, 77 U.S.L.W. 1320 (Nov. 25, 2008):

A second simple possession conviction is not an aggravated felony for immigration purposes so as to make the offending alien ineligible for cancellation of removal, the U.S. Court of Appeals for the Second Circuit holds, joining the First, Third, and Sixth Circuits in a circuit split on the question. The Fifth and Seventh Circuits have held that a second simple possession offense can be considered a federal felony because it could have been prosecuted as a recidivist offense. According to the Second Circuit, however, “a second conviction for simple controlled substance possession under state law is not a felony under the Controlled Substances Act because the conviction does not proscribe conduct punishable as a felony as it does not correspond in any meaningful way with the federal crime of recidivist possession even if it could have been prosecuted in state court as a recidivist offense.” The court also made clear that its discussion in United States v. Simpson, 319 F.3d 81 (2d Cir. 2002), as to whether a simple possession conviction constitutes an aggravated felony because of a previous drug conviction was dicta. Alsol v. Mukasey, 2d Cir., No. 07-2068-ag(L), 11/14/08.

E.D. Va. Notes Circuit Split Re Whether "Unclean Hands" Doctrine Is Applicable to RICO Claims

Per Smithfield Foods, Inc. v. United Food and Commercial Workers Intern. Union, --- F.Supp.2d ----, 2008 WL 4899535 (E.D. Va. Oct 14, 2008):

The well-recognized doctrine of unclean hands prevents a plaintiff from obtaining equitable relief if the plaintiff has been "guilty of any inequitable or wrongful conduct with respect to the transaction or subject matter sued on." WorldCom, Inc. v. Boyne, 68 Fed. Appx. 447, 451 (4th Cir.2003). It is unclear, however, both nationally and in the Fourth Circuit, whether the doctrine of unclean hands applies in civil RICO claims.

The circuit courts are currently divided on this issue. The First Circuit, in Roma Construction Co. v. Russo, 96 F.3d 566, 571-75 (1st Cir.1996), suggested that the doctrine does not apply, but ultimately concluded that the plaintiffs did not have "unclean hands." The Eleventh and Seventh Circuits have opined that the doctrine may apply in civil RICO actions. See Sikes v. Teleline, Inc., 281 F.3d 1350, 1366 n. 41 (11th Cir.2002); Laborers' International Union of North America v. Caruso, 197 F.3d 1195, 1197-98 (7th Cir.1999). The Third Circuit also has applied the doctrine of unclean hands in the context of determining whether an injunction, after trial, can be denied. Northeast Women's Center, Inc. v. McMonagle, 868 F.2d 1342, 1354-55 (3d Cir.1989).

Notwithstanding the uncertainty at the circuit court level, it is persuasive that "an overwhelming majority" of district courts to consider the issue have concluded that "the defense of unclean hands is not available in civil RICO actions." Florida Software Sys. v. Columbia/HCA Healthcare Corp., 1999 U.S. Dist. LEXIS 15294, at *6 (M.D.Fla. Sept. 16, 1999); see, e.g., Local 851 of the Int'l Bhd. of Teamsters, 1998 U.S. Dist. LEXIS 3779, at *5, 1998 WL 178873, at *2 (E.D.N.Y 1998); Bieter Co. v. Blomquist, 848 F.Supp. 1446 (D.Minn.1994); In re National Mortgage Equity Corp. Mortgage Pool Certificates Sec. Litig., 636 F.Supp. 1138 (C .D. Cal 1986).

. . . .

Finally, the Supreme Court has held that the affirmative defense of unclean hands has "been rejected" in the context of statutes "where Congress [has] authorize[d] broad equitable relief to serve important national purposes." McKennon v. Nashville Banner Publ. Co., 513 U.S. 352, 357 (1995) (addressing unclean hands in the context of an AEDA claim). RICO is such a statute. See, e.g., Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 28 (1991) (RICO was "designed to advance important public policies").

The persuasive weight of authority is that the affirmative defense of unclean hands is not available in a civil RICO action and cannot be asserted by the Defendants as an affirmative defense. Of course, the existence of inequitable conduct may be pertinent in shaping equitable relief, if there is a finding of liability. See, e.g., Heldman v. United States Lawn Tennis Asso., 354 F.Supp. 1241, 1249 (S.D.N.Y.1973).

11th Cir. Identifies Split Re Whether Dist. Ct. Must Consider Each Enhancing Sentencing Factor on the Record

Per U.S. v. Santiago Moreno, 2008 WL 4787153 (11th Cir. Nov 4, 2008):

The [Sentencing] Guidelines Application Note 20 states "the court shall include consideration of the following factors" in determining whether the offense [manufacture of methamphetamines] created a substantial risk of harm to human life or the environment . . .

Although there is a circuit split on the issue, this Court has not published a case addressing whether the district court is obligated to explicitly consider each factor enumerated in [Sentencing Guidelines] Application Note 20. Application Note 20 does state that, in deciding whether to impose an enhancement under § 2D 1.1(b)(8)(B), the court "shall include consideration" of the four factors set forth in the Note. Id. Nevertheless, there is nothing in Application Note 20 that directs the court to do so on the record. See generally id. Because Application Note 20 does not provide the district court must consider on the record all four listed factors, and neither this Court nor the Supreme Court has held a district court is obligated to do so, the district court's failure to do so was not plain error.

Justices Agree to Examine Arbitration Agreement; Appeals Courts Have Split

Per BNA's Class Action Litigation Report, 11/14/2008:

The U.S. Supreme Court Nov. 7 granted review of an issue that the petitioner says has generated an “intractable divide” among the federal appeals courts: Does the Federal Arbitration Act give appellate jurisdiction over the appeal from an order denying application to stay claims involving nonsignatories to an arbitration agreement? (Arthur Andersen LLP v. Carlisle, U.S., No. 08-146, cert. granted 11/7/08).