Latest 3 Cases: Yeransian v. B. Riley & Co., LLC (Civil Procedure), United States v. Stephen (Civil Rights), Gonzalez v. Rosen (Criminal Law)

NYC’s Mandatory Collective Bargaining Agreements in Fast-Food Shops?

SAMUEL ESTREICHER, ZACHARY FASMAN

NYU law professor Samuel Estreicher and adjunct professor Zachary Fasman comment on two bills passed by the New York City Council that would mandate detailed and extensive labor protections for fast-food workers in New York City. Professors Estreicher and Fasman praise the intent behind the laws but explain why the City Council is not the place where binding agreements governing private workplaces in the City should be enacted.

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Yeransian v. B. Riley & Co., LLC

Docket: 19-1310

Opinion Date: January 4, 2021

Judge: James B. Loken

Areas of Law: Civil Procedure, Corporate Compliance

Aspen agreed to pay FBR, an investment banking firm, 1.25 percent of the aggregate consideration paid to Aspen’s shareholders in the event of an acquisition or merger. Markel subsequently became the parent of Aspen and agreed to pay Aspen shareholders $135,700,000 in cash plus additional compensation based on the future value of Aspen’s business. FBR provided a fairness opinion and received 1.25 percent of the cash consideration. Aspen shareholders obtained “contingent value rights” to the additional compensation (CVR Holders) and challenged Markel’s valuation of the CVRs. The Delaware District Court has not yet issued a valuation opinion. FBR indicated its intent to claim 1.25 percent of the additional compensation. The CVR Holders sought a declaratory judgment that FBR is not entitled to further payment. FBR removed to the District of Nebraska, which dismissed the action because the CVR Holders failed to establish Article III standing. The Eighth Circuit affirmed. While the Holders' contract-based claims to a share of the additional compensation may be a legally protected interest, they have not suffered an injury that is concrete and particularized and actual or imminent. The final amount of the additional compensation has not been determined; no payments have been made. The Holders' only injury in fact is not fairly attributable to FBR asserting a competing claim, and cannot be redressed at this time by the judicial decision they seek. The additional compensation will be paid by Markel, a non-party.

United States v. Stephen

Docket: 19-1966

Opinion Date: January 4, 2021

Judge: Raymond W. Gruender

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

Ellison, remodeling Stephen’s house, noticed a USB drive on the toilet tank. Ellison had researched hidden recording devices following a break-in and recognized it as a hidden camera. Ellison took the USB home but did not view its contents. The next morning, Ellison returned to Stephen’s home and discovered a young boy asleep. Stephen, a youth basketball coach, arrived with another boy. Returning home, Ellison viewed the USB’s contents, finding multiple videos depicting children secretly recorded in various stages of undress. Ellison delivered the USB to the Monticello Police. The Iowa Division of Criminal Investigation took possession of the USB, obtained a warrant, and viewed its contents. A warranted search of Stephen’s homes uncovered more secret recording devices and a hard drive containing approximately 400 visual depictions of nude minor boys, including images of Stephen molesting unconscious victims. Indicted for sexually exploiting a child, 18 U.S.C. 2251(a), possessing child pornography, section 2252(a)(4)(B), and transporting child pornography, section 2252(a)(1), Stephen unsuccessfully moved to suppress the evidence. The Eighth Circuit affirmed the denial of the motion and Stephen’s 2,160-month sentence. The Fourth Amendment does not apply to private-citizen searches unless that private citizen acted as a government agent. Ellison was acting out of civic duty; even if Ellison intended to assist law enforcement, it would not be enough to establish he was a government agent. The police chief had probable cause to take the USB from Ellison.

Gonzalez v. Rosen

Docket: 19-2290

Opinion Date: January 4, 2021

Judge: Steven M. Colloton

Areas of Law: Criminal Law, Immigration Law

Herrera's husband fraudulently used the identity of a lawful permanent U.S. resident (LPR) to become a citizen. Herrera obtained LPR status as the wife of a citizen and became a citizen. Herrera's four children are U.S. citizens. In 2011, Herrera was convicted of second-degree theft. The government discovered Herrera’s false statement. She pleaded guilty to naturalization fraud, 18 U.S.C. 1425(a). The district court revoked her citizenship and restored her to LPR status, 8 U.S.C. 1451(e). If an alien commits fraud or misrepresents a material fact to gain a benefit under the immigration laws, she may be deported, 8 U.S.C. 1182(a)(6)(C)(i); 1227(a)(1)(A). Herrera sought a waiver available to aliens who committed immigration fraud but are the parent of a citizen and separately sought cancellation of removal as an LPR. DHS added a charge of removability for convictions of crimes involving moral turpitude based on Herrera's theft conviction, then withdrew the charge of removability for immigration fraud. The BIA affirmed that she was ineligible for a fraud waiver because she was no longer charged under the fraud provision and was ineligible for cancellation of removal because she had obtained her LPR status by fraud. The Eighth Circuit denied relief, rejecting Herrera’s argument that DHS could not withdraw the fraud charge because it had already been sustained by the IJ. The government is permitted to adjust the charges against an alien during the immigration court case.