Rats.

That's how this 7th Circuit opinion by Judge Easterbrook starts:

Rats. This case is about rats. Giant, inflatable rats, which unions use to demonstrate their unhappiness with employers that do not pay union‐scale wages. Cats too—inflatable fat cats, wearing business suits and pinkie rings, strangling workers. Here is what they look like, as deployed during a labor dispute in the Town of Grand Chute, Wisconsin:

As the pictures show, the rat and the cat are staked to the ground, to prevent the wind from blowing them away. Those stakes led to this litigation.

I can't see to get the pictures from the opinion to paste into the blog post, so go check out the opinion itself. It's pretty funny. And happy first day of school!

Moment of Zen

Here's Justice Ginsburg reading to children:

Eric Trump testifies in Southern District of Florida

Susannah Nesmith for Bloomberg has the details:

Eric Trump took a page from his father’s playbook Tuesday, telling a judge the billionaire’s renovations to a foundering Florida golf club he bought made it even better.
“We took something that had really gone bad and we made it great again,” Eric Trump, the executive vice president of the golf club, told a judge in West Palm Beach, echoing Donald Trump’s presidential campaign slogan.
The Trump Organization saved Trump National Golf Club Jupiter because it was insolvent, Eric Trump testified. Most members love the renovated golf club now, he said. The suit was filed by former golfers at the club who say they were ripped off when Trump didn’t refund their deposits and barred them from the facilities.
After having insisted for months that people who resigned their memberships at the club didn’t lose access, Eric Trump admitted he was wrong on that point and that some had been barred.
“I’m the first person to have enough hubris to say when you’re wrong, you’re wrong,” he said.
The former members sued the golf club in Jupiter to recover almost $5 million in deposits that they say should have been refunded when the elder Trump changed the membership rules after buying the venture from Ritz-Carlton Hotel Co. in 2012.

No jury in this one... it will be up to Judge Marra:

Both sides in the dispute agreed to waive a jury trial, so U.S. District Judge Kenneth Marra will decide whether Trump must pay the club’s former members back.
Marra said at the conclusion of the two-day trial on Tuesday that he’d rule later.

Donald Trump in trial in SDFLA

No kidding.  I'm surprised it's not getting more play, but Donald Trump is a defendant in a civil lawsuit in WPB before Judge Marra in a trial that started yesterday.  He testified by taped deposition.  Here's the PBP:

 In classic Donald Trump fashion, the GOP presidential nominee testified Monday that improvements he made to an ailing Jupiter country club were “beautiful,” the members were “very happy” and those who weren’t were just “angry people” he didn’t want in his club anyway.
Never mind that the reason those people are angry is they believe he stole as much as $6 million from them.
Trump’s appearance at the breach of contract trial in U.S. District Court was limited to a roughly 25-minute video deposition. It was taken at his New York City offices in April 2015, long before anyone imagined the real-estate-mogul-turned-TV-celebrity would secure the Republican presidential nomination.
As expected, Trump denied allegations by members of Trump National Golf Club in Jupiter that he improperly changed the rules of their membership contracts when he in December 2012 bought the financially troubled club from Ritz-Carlton Golf Club & Spa for $5 million. He was equally dismissive of suggestions that he got the club at a bargain price by agreeing to assume an estimated $41 million in liabilities that hung over it because Ritz-Carlton promised to refund initiation fees, ranging from $35,000 to $210,000, to members who quit.
“It could have been the club would have closed and gone into bankruptcy and everyone would have lost money,” Trump testified. His purchase, he said, saved the club — and its members — from what he called “the ‘B’ word.”But, three members who filed the class-action suit on behalf of roughly 60 others when he refused to refund their membership fees, said Trump used their money to put the club on firm financial footing.Shortly after buying the club in a gated community on Donald Ross Road near Alternate A1A, he wrote members a letter, alerting anyone who had announced their intention of resigning: “you’re out.”

James Cohn takes senior status

In early August, Judge James Cohn quietly took senior status.  It's not even reflected on the court's website yet.  Judge Cohn, one of my favorite judges, had the perfect demeanor for a federal judge.  Easy going and gentlemanly, yet decisive. Even when he ruled against you, you and your client felt like you got a fair shake.  Here's some information about Judge Cohn from Wikipedia:

Cohn was born in 1948 in Montgomery, Alabama. He received his Bachelor of Science degree from the University of Alabama in 1971 and his J.D. from the Cumberland School of Law at Samford University in 1974. While at Alabama, Cohn was a member of the Zeta Beta Tau Fraternity.
Cohn served in the Alabama Army National Guard from 1970 to 1972, in the United States Army Reserves from 1972 to 1975, and in the Florida Army National Guard from 1975 to 1976.

Cohn served as assistant public defender in the Broward County Public Defender's Office in 1975 and as assistant state attorney in the Broward County State Attorney's Office in 1975 to 1978.

Cohn was in private practice in Fort Lauderdale, Florida from 1978 to 1995; he worked for a year with the Michael Widoff law firm before beginning his own general trial practice in 1979.

In 1995 Cohn became a judge on the 17th Judicial Circuit Court of Florida.

President George W. Bush nominated Cohn on May 1, 2003 to the United States District Court for the Southern District of Florida, to the new seat created by 116 Stat. 1758. Confirmed by the Senate on July 31, 2003, and received commission on August 1, 2003. He took senior status on August 5, 2016.

Legal Standards -- #ThrowbackThursdayEdition

This week, the Eleventh Circuit dusted off some old case law for the legal-standards sections of two published opinions.

In the first, the court, quoting one of its decisions from 2006, set forth the standard for grants of summary judgment:

We review de novo a grant or denial of summary judgment, viewing all facts and reasonable inferences in the light most favorable to the nonmoving party. Bridge Capital Inv’rs, II v. Susquehanna Radio Corp., 458 F.3d 1212, 1215 (11th Cir. 2006). “Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Hallmark Developers, Inc. v. Fulton Cty., Ga., 466 F.3d 1276, 1283 (11th Cir. 2006); see also Fed. R. Civ. P. 56(a).

In 2010 the drafters of the Federal Rules of Civil Procedure replaced the word “issue” with “dispute,” supposedly because it “better reflects the focus of a summary-judgment determination.” But—as seen by this decision—the word “issue” is still quite frequently used.

Regarding motions to dismiss, the Supreme Court of the United States nearly a decade ago famously wrote that that the “no set of facts” standard described in Conley v. Gibson of 1957 “ha[d] earned its retirement.” In an important securities-law decision issued yesterday by the Eleventh Circuit, however, that “no set of facts” standard came back.

Review of a district court’s decision to grant a motion to dismiss is conducted de novo. Spain v. Brown & Williamson Tobacco Corp., 363 F.3d 1183, 1187 (11th Cir. 2004). In deciding a Rule 12(b)(6) motion to dismiss, the court must accept all factual allegations in a complaint as true and take them in the light most favorable to plaintiff, Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200 (2007), but “[l]egal conclusions without adequate factual support are entitled to no assumption of truth,” Mamani v. Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted). The motion is granted only when the movant demonstrates “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45–46, 78 S. Ct. 99, 102 (1957); see also Flint v. ABB, Inc., 337 F.3d 1326, 1328–29 (11th Cir. 2003).

Caruso and company lead Johnson fight

I missed this DBR article last week, which details the developments with Johnson in the 11th Circuit, including the cert grant in Beckles.  Big ups to Michael Caruso, Janice Bergman, and Brenda Bryn for leading this fight.  Here's the intro:

Next term, the U.S. Supreme Court will hear a case from the Atlanta federal appellate court that could shorten prison terms for thousands of people.
Miami Federal Public Defender Michael Caruso won a coveted slot on the high court's docket for an issue that's roiling the federal circuits. In the U.S. Court of Appeals for the Eleventh Circuit, which stands alone on this matter, one judge went so far as to accuse her court of fomenting injustice through unforced errors.
The question for the U.S. Supreme Court is whether possession of a sawed-off shotgun is a crime of violence under federal sentencing guidelines for career offenders. Significant swings in mandatory sentence zones — from up to 10 years to 15 years to life — turn on the answer.
The court ruled a year ago in Johnson v. United States that a similar provision of the Armed Career Criminal Act is unconstitutionally vague. A "residual clause" in the definition of a violent felony allows enhanced sentences for any crime involving "conduct that presents a serious potential risk of physical injury to another." Prosecutors argued that the definition covered nonviolent crimes like drunken driving and attempted burglary.
In Johnson, Justice Antonin Scalia wrote for an 8-1 majority that the residual clause invites "arbitrary enforcement." The court decided the wording violates due process, being "so vague that it fails to give ordinary people fair notice of the conduct it punishes," in Scalia's words.

Arrest vs. surrender

It's a dirty little (not-so)secret in our system that cooperators are treated very differently than those who decide to fight.  Sometimes those discrepancies are justified, but many times they are not.  For example, if you cooperate and agree to plead guilty before charges are filed, you are allowed to surrender and immediately bond out.  But heaven-forbid that you want to fight the upcoming charges, you almost will certainly be arrested (at 6am in front of your family) and often-times, there will be a fight over bond.  There is simply no reason for this other than to punish people who want to fight. Unless a defendant presents a real danger or risk of flight, he should be permitted to surrender just like the cooperator.

The Opa-Locka case is a good example.  The cooperator was (rightfully) permitted to surrender.  From the Herald:

On Monday, the 51-year-old administrator surrendered in federal court in Miami on a charge of using his office to pocket thousands of dollars in bribes while shaking down local businesses seeking licenses in one of Florida’s poorest cities.
Appearing in handcuffs and leg braces, the once-popular city manager who resigned from his job last week pleaded not guilty, was granted a $50,000 bond and was released in the afternoon.

Read more here: http://www.miamiherald.com/news/local/community/miami-dade/miami-gardens/article94388857.html#storylink=cpy

According to the Miami Herald, a "sweeping" indictment is coming out soon.  Will those defendants be given the same courtesy?  Why shouldn't those individuals also be permitted to surrender and post bond as well?  Is it a good use of resources to send the SWAT team in full riot gear to a white-collar defendant's home at 6am to arrest a defendant in front of his kids?