Tuesday, March 22, 2016

Judge Merrick Garland Opinions on "Business" Law

Legal commentators and the media have been abuzz with news of President Obama's nomination of Judge Merrick Garland to the Supreme Court.  If there was ever reason to be abuzz, in the world of legal news, this is it.  Try to find a summary of Judge Garland's record in dealing with business law issues, however, and you are met with a silent, dark internet.  Aside from mentions of Judge Garland having taught anti-trust at Harvard there is little discussion of his business jurisprudence.  The D.C. Circuit court hears an administratively heavy caseload, but Judge Garland has been on the bench for nearly 20 years! I set out to uncover his business law barometer.   My initial searches produced  19 opinions that he authored on business law matters, which are mostly securities cases but also include a piercing the corporate veil and contracts claims among others.  While I am no online search wizard and am positive that I have missed some relevant cases, this is what I produced after such wide-net casting as "business law", "corporations", "partnership", "board of directors", "shareholders" etc.  You get the idea, I ran several undeniably broad searches.  The initial case list is provided below, and was generated (along with annotations) through WestLaw.  Please comment if you have relevant cases to add.  I may add commentary on the cases in a future post if there is interest... (and time).

Securities Law Cases 

  1. Horning v. S.E.C., 570 F.3d 337 (D.C. Cir. 2009)

SECURITIES REGULATION - Brokers and Dealers. Mid-trial correction of sanction the SEC sought did not deprive broker-dealer firm’s former director of due process.

  1. Graham v. S.E.C., 222 F.3d 994 (D.C. Cir. 2000)

SECURITIES REGULATION - Fraud. Registered representative aided and abetted customer’s fraud.

  1. Katz v. S.E.C., 647 F.3d 1156 (D.C. Cir. 2011)

SECURITIES REGULATION - Brokers and Dealers. Former registered representation made unsuitable investment recommendations for her customers.

  1. Gorman v. Ameritrade Holding Corp., 293 F.3d 506 (D.C. Cir. 2002)

 E-COMMERCE - Internet. Conduct of Internet business can be basis for general jurisdiction.

...June 14, 2002. Real estate broker based in Virginia sued securities broker based in Nebraska, alleging that securities broker failed to honor contract to provide real estate broker...

  1. U.S. v. Andrews, 146 F.3d 933 (D.C. Cir. 1998)

After corporation was ordered to pay $500,000 civil penalty in civil securities fraud action brought by Securities and Exchange Commission (SEC), grand jury indicted corporation’s chief executive officer (CEO) and president for essentially same conduct. CEO and president moved to dismiss on double jeopardy grounds.

  1. Kurke v. Oscar Gruss and Son, Inc., 454 F.3d 350 (D.C. Cir. 2006)

SECURITIES REGULATION - Brokers and Dealers. Arbitration panel’s ruling against securities broker was not in manifest disregard of law.

  1. S.E.C. v. Bilzerian, 378 F.3d 1100 (D.C. Cir. 2004)

SECURITIES REGULATION - Jurisdiction. Court had personal jurisdiction over debtor, in action ancillary to SEC enforcement action.

  1. First American Discount Corp. v. Commodity Futures Trading Com’n., 222 F.3d 1008 (D.C. Cir. 2000)

SECURITIES REGULATION - Commodity Futures. Futures commission merchant was liable for acts of commodities broker.

  1. U.S. v. Gartmon, 146 F.3d 1015 (D.C. Cir. 1998)

Defendant was convicted in the United States District Court for the District of Columbia, Sullivan, J., of interstate transportation of securities obtained by fraud and of money laundering, and he appealed. The Court of Appeals, Garland, Circuit Judge, held that: (1) district court did not abuse its discretion.  Convictions affirmed and remanded for resentencing.

 Other Cases

  1. Wagner v. Federal Election Commission, 793 F.3d 1 (D.C. Cir. 2015)

GOVERNMENT - Elections. Federal Election Campaign Act’s (FECA) ban on political contributions from federal contractors did not violate First Amendment.

  1. First Am. Disc. Corp. v. Commodity Futures Trading Comm'n, 222 F.3d 1008 (D.C. Cir. 2000)

Futures commission merchant (FCM) petitioned for review of order of the Commodity Futures Trading Commission (CFTC) holding it jointly and severally liable for acts of commodities broker whose liabilities it had agreed to guarantee. The Court of Appeals, Garland, Circuit Judge, held that: (1) CFTC regulation pursuant to which FCM entered into guarantee agreement was valid; (2) FCM was not harmed by lack of notice of guaranty option; and (3) CFTC's interpretation of regulation as not being waiveable by customer was not plainly erroneous or inconsistent with regulation.

  1. Dynaquest Corp. v. U.S. Postal Serv., 242 F.3d 1070 (D.C. Cir. 2001)

Following affirmance of decision that liquidation corporation had conducted fraudulent scheme through the mail, 12 F.3d 1144, corporation appealed decision of Postal Service Administrative Judicial Officer (AJO) denying corporation's request for order directing release from escrow of funds sent to corporation by customers. The United States District Court for the District of Columbia, Thomas F. Hogan, J., affirmed. Corporation appealed. The Court of Appeals, Garland, Circuit Judge, held that motion was barred, under doctrine of res judicata, by prior decision of Sixth Circuit Court of Appeals that funds could not be released

  1. Aliron Int'l, Inc. v. Cherokee Nation Indus., Inc., 531 F.3d 863 (D.C. Cir. 2008)

Service and staffing resources provider brought breach of contract action against dental services provider with whom it had entered into a subcontract and support agreement to help dental services provider meet its obligations under contract with Army. The United States District Court for the District of Columbia, 2006 WL 1793295, granted dental services provider's motion to compel arbitration. Service and staffing resources provider appealed. Holding: The Court of Appeals, Garland, Circuit Judge, held that arbitration provision in subcontract governed disputes under the support agreement.

  1. Conseil Alain Aboudaram, S.A. v. de Groote, 460 F.3d 46 (D.C. Cir. 2006)

Lender brought action against borrower for repayment of loans secured by two promissory notes. Borrower counterclaimed for payment for work performed for lender. The jury returned verdicts for lender, but the United States District Court for the District of Columbia, Bates, J., 2004 WL 1242426, granted borrower's renewed motion for judgment as a matter of law on lender's claim for repayment. The District Court later denied borrower's motion for sanctions for discovery abuses. The parties appealed.

  1. Carpenters & Millwrights, Local Union 2471 v. N.L.R.B., 481 F.3d 804 (D.C. Cir. 2007)

National Labor Relations Board (NLRB) found that employer and two of its owners committed series of flagrant violations of National Labor Relations Act (NLRA) and ordered it to provide back pay to victims of its unfair labor practices. In subsequent compliance proceeding necessitated by fact that employer's co-owners had distributed company's funds to themselves and one refused to settle back pay claims, ALJ pierced the corporate veil and imposed personal liability on one of the owners. On appeal, NLRB's supplemental decision and order affirmed back pay judgment against employer, but reversed ALJ's decision to hold nonsettling co-owner and his spouse personally liable. Union petitioned for review of veil-piercing component of NLRB's supplemental decision and order, and NLRB cross-applied for enforcement of that decision and order against employer.

  1. Novecon Ltd. v. Bulgarian-Am. Enter. Fund, 190 F.3d 556 (D.C. Cir. 1999)

Developer of real estate project in Bulgaria, along with its president, brought diversity action against Congressionally-established financier, asserting breach of contract and defamation claims. The United States District Court for the District of Columbia, Louis F. Oberdorfer, J., 967 F.Supp. 1382, 977 F.Supp. 45, granted summary judgment for financier, and, 977 F.Supp. 52, rejected plaintiffs' motion to deny or stay summary judgment in order to permit additional discovery. Plaintiffs appealed. The Court of Appeals, Garland, Circuit Judge, held that: (1) parties' letters did not establish binding financing contract; (2) plaintiffs could not recover under theories of promissory estoppel or quantum meruit; (3) financier was entitled to qualified privilege of self defense for its allegedly defamatory statements about plaintiffs; (4) plaintiffs did not establish malice sufficient to overcome privilege; and (5) plaintiffs were not entitled to additional discovery.

  1. U.S. ex rel. Yesudian v. Howard Univ., 153 F.3d 731 (D.C. Cir. 1998)

Former employee of university purchasing department brought action against university and supervisor, alleging submission of false claims in violation of False Claims Act (FCA), retaliation for reporting alleged false claims, and breach of contract. After jury returned verdicts for former employee on certain claims, the United States District Court for the District of Columbia, Harold H. Greene, J., 946 F.Supp. 31, granted supervisor's motion for judgment as matter of law on retaliation claim, but denied university's motion for judgment as matter of law on contract claim. Parties appealed. The Court of Appeals, held that: (1) employee's failure to initiate private qui tam suit did not defeat FCA retaliation claim against supervisor; (2) reasonable juror could conclude that employee was engaged in protected activity under FCA, and that supervisor was on notice of that protected activity, and thus judgment as matter of law on retaliation claim was improper; and (3) whether university's handbook created binding employment contract was for the jury.

-Anne Tucker


Anne Tucker, Constitutional Law, Corporations, Current Affairs, Securities Regulation | Permalink


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