Seventh Circuit Notes Split Re Whether Attempted Bank Robbery Is A Specific Intent Crime

Per U.S. v. Durham --- F.3d ----, 2011 WL 2535801 (7th Cir. June 28, 2011):

Neither this Court nor the Supreme Court has decided whether specific intent is an essential element of attempted bank robbery in violation of § 2113(a); our sister circuits are split on the issue. Compare United States v. Darby, 857 F.2d 623, 626 (9th Cir.1988) (attempted bank robbery under § 2113(a) requires the specific intent to take the property by force, violence or intimidation), with United States v. Johnston, 543 F.2d 55, 57–58 (5th Cir.1976) (attempted bank robbery under § 2113(a) is not specific intent crime) and United States v. Armstrong, 116 F.3d 489 (10th Cir.1997) (unpublished) (same). We need not decide the issue to address defendants' argument here.


First Circuit Notes Split Re Copyright Act Requires Written Agreement Before Creation of the Work

Per TMTV v. MASS PRODUCTIONS, INC.; EMMANUEL --- F.3d ----, 2011 WL 2306514 (1st Cir. June 13, 2011):

Jiménez and Morales confirmed in depositions that this was their own oral understanding with the production company; but the statute [Copyright Act] requires express agreement in a signed written instrument, see 17 U.S.C. § 101 (definition); and the circuits are divided as to whether the language and policy require the writing before the creation or at least the completion of the work.FN3

FN3. Compare Schiller & Schmidt, Inc. v. Nordisco Corp., 969 F.2d 410, 413 (7th Cir.1992) (written work-for-hire agreement must precede creation of work), and Gladwell Gov't Servs., Inc. v. Cnty. of Marin, 265 F. App'x 624, 626 (9th Cir.2007) (same), with Playboy Enters., Inc. v. Dumas, 53 F.3d 549, 559 (2d Cir.) (written agreement might postdate creation if “memorializing” earlier oral agreement), cert. denied, 516 U.S. 1010 (1995). See also 1 Nimmer & Nimmer, supra, § 5.03[B][2][b], at 5–56.


Ninth Circuit Creates Split Re Waiver of Sovereign Immunity under Public Vessels Act

United States—Sovereign Immunity

Tobar v. United States
 (79 U.S.L.W. 2449) (May 2011)

Does the United States' waiver of sovereign immunity in the Public Vessels Act for “damages caused by a public vessel”apply when a crew from a public vessel boards a private vessel? The Ninth Circuit says that it does, but the Eleventh Circuit has held that it does not.

Sixth Circuit Weighs in on Split Re Ability of Agency to Exempt Itself from Privacy Act's Civil Remedies Provision

Freedom of Information—Privacy Act

Shearson v. Department of Homeland Security
 (79 U.S.L.W. 2441) (May 2011)

May an agency exempt itself from the Privacy Act's civil remedies provision, 5 U.S.C. § 552a(g), by properly issuing rules to exempt a records system? The Sixth Circuit joins the D.C. Circuit in holding that a record system may be excluded only when Section 552a(j) permits the information to be exempted. The Fourth, Seventh, and Ninth circuits, however, allow an agency to exempt material if the records system was exempted by properly issued rules.

Ninth Circuit Creates Split Re Proper Test for Government Waiver of Confidentiality under FOIA

Freedom of Information—Exemptions

Watkins v. U.S. Bureau of Customs and Border Protection
 (79 U.S.L.W. 2520) (May 2011)

What is the proper test for determining whether the government has waived confidentiality under the Freedom of Information Act? The Ninth Circuit says that when the government freely discloses to a third party confidential information without limiting the third-party's ability to disseminate it, the government waives the ability to claim an exemption to a FOIA request for the disclosed information. The D.C. Circuit, however, previously adopted the public domain test, which asks whether the information was preserved in a public record.

Fourth Circuit Creates Split Re Removability of Parens Patriae Action by State AG

Civil Procedure—Removal

West Virginia ex rel. McGraw v. CVS Pharmacy Inc.
 (79 U.S.L.W. 2592) (May 2011)

Is a parens patriae action brought by a state attorney general removable to federal court under the 2005 Class Action Fairness Act? The Fourth Circuit rules that it is not. The Fifth Circuit has held that such a suit is removable.

Second Circuit Weighs in on Split Re Meaning of "Otherwise Defend" in FRCP 55(a)

Civil Procedure—Default Judgment

City of New York v. Mickalis Pawn Shop LLC
 (79 U.S.L.W. 2511) (May 2011)

Does a defendant's withdrawal from a suit after initially defending on personal jurisdiction constitute a failure to “otherwise defend” the suit under Fed. R. Civ. P. 55(a)? The Second Circuit holds that it does, agreeing with the First, Third, Fourth, Eighth, and Ninth circuits' broad reading of Rule 55;the Fifth and Eleventh circuits have read the rule more narrowly.

Sixth Circuit Notes Split Re Subclassing and Bifurcation

Civil Procedure—Class Actions

Randleman v. Fidelity National Title Insurance Co.
 (79 U.S.L.W. 2590) (May 2011)

Issue: May subclassing and bifurcation be used to remedy predominance issues in class actions? The Sixth Circuit, declining to take sides, notes that the Second and Ninth circuits allow the practices so long as common issues predominate, while the Fifth and Eleventh Circuits do not permit them.

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