Latest 4 Cases: In re: Bernard L. Madoff Investment Securities LLC (Bankruptcy), Rukoro v. Federal Republic of Germany (Civil Procedure), United ...

In Ruth We Trust: How the Pregnant Workers Fairness Act Can Promote Women’s Equal Citizenship and Justice Ginsburg’s Legacy

JOANNA L. GROSSMAN

In honor of the late Justice Ruth Bader Ginsburg, SMU Dedman School of Law professor Joanna L. Grossman explains how the Pregnant Workers Fairness Act (PWFA) can promote women’s equal citizenship and protect Justice Ginsburg’s legacy of shaping gender equality. Grossman argues that the PWFA could help break down entrenched occupational segregation in the American economy, and, in so doing, honor Justice Ginsburg’s lifelong commitment to ensuring that women can be full members of society.

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A Half Century After Its Publication, What Can “The Greening of America” Tell Us About the United States Today?

RODGER CITRON

In recognition of the 50-year anniversary of the publication of Charles Reich’s “The Greening of America,” Touro law professor Rodger D. Citron explains what Reich actually said in “The Greening,” explains why it generated such a strong response, and reflects on what the piece has to say about the fractures of our current moment. Citron cautions that the promise of a new consciousness is as alluring—and may be as illusory—as it was when Reich wrote the article and book, 50 years ago.

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In re: Bernard L. Madoff Investment Securities LLC

Docket: 19-0429

Opinion Date: September 24, 2020

Judge: Robert David Sack

Areas of Law: Bankruptcy, Securities Law, White Collar Crime

After the Bernie Madoff Ponzi scheme collapsed, Picard was appointed under the Securities Investor Protection Act, 15 U.S.C. 78aaa (SIPA), as the liquidation trustee for Bernard L. Madoff Investment Securities LLC (BLMIS). The Act established a priority system to make customers of failed brokerages whole before other general creditors. Where customer property is insufficient to satisfy customers' claims, the trustee may recover property transferred by the debtor that would have been customer property but for the transfer if and to the extent that the transfer is void or voidable under the Bankruptcy Code. 15 U.S.C. 78fff–2(c)(3). The provisions of the Bankruptcy Code apply only to the extent that they are consistent with SIPA. Picard attempted to recover transfers of money that the defendants had received from BLMIS in excess of their principal investments. The defendants are BLMIS customers who were unaware of the fraud but profited from it by receiving what they thought were legitimate profits; the funds were actually other customers' money. The Second Circuit affirmed summary judgment in favor of Picard. The Bankruptcy Code affirmative defense that permits a transferee who takes an interest of the debtor in property "for value and in good faith" to retain the transfer to the extent of the value given does not apply in this SIPA liquidation. The transfers were not "for value" and recovery would not violate the two-year limitation.

Rukoro v. Federal Republic of Germany

Docket: 19-609

Opinion Date: September 24, 2020

Judge: Pooler

Areas of Law: Civil Procedure, International Law

Plaintiffs filed a putative class action on behalf of members and descendants of the Ovaherero and Nama indigenous peoples against the Federal Republic of Germany, seeking damages for the enslavement and genocide of the Ovaherero and Nama peoples in what is now Namibia, as well as for property they alleged Germany expropriated from the land and peoples. The Second Circuit affirmed the dismissal of the suit for lack of subject matter jurisdiction under the Foreign Sovereign Immunities Act (FSIA). Germany is a foreign sovereign; the only path for the exercise of jurisdiction is if a FISA exception applies. FSIA’s takings exception, 28 U.S.C. 1605(a)(3), provides that a foreign state is not immune from the jurisdiction of U.S. courts in cases "in which rights in property taken in violation of international law are in issue and that property or any property exchanged for such property is present in the United States in connection with a commercial activity carried on in the United States by the foreign state; or that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in commercial activity in the United States.” The plaintiffs’ allegations were insufficient to trace the proceeds from property expropriated more than a century ago to present‐day property owned by Germany in New York.

United States v. Bolin

Docket: 19-2119

Opinion Date: September 24, 2020

Judge: Robert David Sack

Areas of Law: Criminal Law

Defendant appealed two special conditions of his supervised release stemming from his conviction for making a materially false, fictitious, and fraudulent statement and representation to FBI agents. The conditions prohibit him from: (a) engaging in conduct online that "promotes or endorses violence"; and (b) possessing or using a computer or other internet-capable device without participating in a monitoring program operated by the U.S. Probation Office. The court concluded that the challenged conditions satisfy the "reasonably related" requirements of USSG 5D1.3(b)(1) and accord with the court's caselaw interpreting that provision. However, the court concluded that because of the vagueness of the condition prohibiting him from engaging in violence-promoting speech online in its present form, it infringes upon his rights to free speech guaranteed by the First Amendment to the U.S. Constitution. Accordingly, the court affirmed in part, vacated and remanded in part.

United States v. Bryant

Docket: 18-3569

Opinion Date: September 24, 2020

Judge: Joseph F. Bianco

Areas of Law: Criminal Law

The Second Circuit affirmed defendant's conviction and sentence for conspiring to distribute cocaine base and possession of a firearm as a convicted felon, but vacated two challenged conditions of supervised release and remanded in part. The court held that defendant's guilty plea to possessing a firearm as a convicted felon remains valid, even in light of Rehaif v. United States, 139 S. Ct. 2191 (2019), because it is plain that defendant knew of his unlawful status when he possessed the firearm and there is no reasonable probability that he would have not pled guilty had he been properly informed that such knowledge was a requirement for conviction under 18 U.S.C. 922(g). The court also held that there was no error at sentencing in the district court's consideration of potential sentencing disparities among similarly situated defendants, and defendant's 90-month sentence was not procedurally or substantively unreasonable. Finally, the court held that the two disputed conditions of supervised release imposed on defendant are not unconstitutionally vague, but the court remanded (1) the risk condition so that the district court can formally incorporate its oral amendment of that condition into the written judgment of conviction, and (2) the communication condition so that the district court may provide the necessary justification for restricting defendant's communications with his brother, or exempt such communications from that condition.