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A consumer paying by check usually provides identification such as a driver’s license. The merchant often takes the bank account number and the driver’s license number and sends them to companies like TeleCheck. TeleCheck runs these identifiers through its system and may recommend that the merchant refuse the check. When a customer presents two identifiers, TeleCheck records a link between them in its system. If, in a later transaction, a customer uses only one of those identifiers, TeleCheck recommends a decline if there is a debt associated with the presented identifier or the linked identifier. Huff requested a copy of his TeleCheck file (Fair Credit Reporting Act. 15 U.S.C. 1681g(a)(1)), providing only his driver’s license. The report contained only the 23 transactions in which he presented his license during the past year but stated that: “Your record is linked to information not included in this report, subject to identity verification prior to disclosure. Please contact TeleCheck.” Huff did not call. Huff’s driver’s license actually links to six different bank accounts. In addition to omitting the linked accounts, the report did not reveal checks from those accounts that were not presented with Huff’s license. TeleCheck has never told a merchant to decline one of Huff’s checks. Huff filed suit and moved for class certification. The Sixth Circuit affirmed the dismissal of the case because Huff lacked standing for failure to show that the incomplete report injured him in any way. View "Huff v. TeleCheck Services., Inc." on Justia Law

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Shepherd pleaded guilty under 18 U.S.C. 2252(a)(2), for possessing several thousand images of child pornography. Shepherd had unpaid bills and a vehicle worth about $200, placing his total net worth at negative $1,739. Shepherd’s counsel asked the court to find that Shepherd was indigent and ineligible for the Justice for Victims of Trafficking Act (JVTA), 18 U.S.C. 3014, assessment, noting that Shepherd had been paying $350 in monthly child support and will owe about $30,000 in support upon his release from prison, along with the $25,000 in court-ordered restitution. Shepherd’s counsel noted his limited education and the fact that he must register as a sex offender. The district court nonetheless ordered the $5,000 JVTA assessment. The Sixth Circuit affirmed. Consideration of Shepherd’s earnings potential, along with his present finances, was appropriate under section 3014 If Shepherd serves his full, 96-month sentence, he will leave prison before he turns 40 years old, with many years of future employability. Shepherd has 20 years after his release from prison to pay the assessment. By budgeting, Shepherd need only save $250 each year or under $5 per week to stay on pace. Having determined that Shepherd was not indigent, the court had no discretion to waive the assessment. View "United States v. Shepherd" on Justia Law

Posted in: Criminal Law

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FedEx provides shipping discounts to high-volume customers. To obtain such a discount, Petlechkov lied to FedEx and claimed he was a vendor for a high-volume shipper. He used those discounted rates to offer shipping services to third parties, pocketing the profit margin between what he charged the third parties and what he paid FedEx. He shipped nearly 30,000 packages before FedEx caught him. Convicted, in the Western District of Tennessee, of 20 counts of mail fraud, 18 U.S.C. 1341, Petlechkov was sentenced to 37 months in prison and ordered to pay approximately $800,000 in restitution. The Third Circuit affirmed as to some counts, rejecting a challenge to the sufficiency of the evidence and a claim that FedEx violated the Sarbanes-Oxley Act by extending him a discount. The court dismissed other counts without prejudice. Petlechkov did not waive or forfeit his venue objection; the government must prove proper venue for each count by a preponderance of the evidence. There was no evidence, direct or circumstantial, that any specific package implicated in these counts ever moved through the Western District of Tennessee. View "United States v. Petlechkov" on Justia Law

Posted in: Criminal Law

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Three years before filing her bankruptcy petition, Lane sold her residence to the Deans. They subsequently discovered mold in the basement and filed a civil complaint against her. The state court submitted the dispute to binding arbitration. The arbitrator awarded the Deans $126,895.57. A Kentucky trial court entered judgment on the award. The Deans filed their judgment lien against Lane’s current residence in May 2017. Lane filed a voluntary chapter 13 petition on July 14. The Bankruptcy Court confirmed Lane’s Plan over the Deans’ objection. The Deans did not appeal the confirmation order but filed adversary proceedings and appeals to avoid its effect. The Bankruptcy Court sanctioned the Deans, awarding Lane attorney fees for their contemptuous behavior. The Deans filed objections to the Lane’s counsel’s Interim Fee Application. The Bankruptcy Court conducted a hearing and ultimately allowed the interim fees. The Sixth Circuit Bankruptcy Appellate Panel dismissed the Deans’ appeal, finding that the interim orders are not final orders, and the record presents no grounds for granting leave to appeal under well-settled Sixth Circuit case law, even treating the pro se notice of appeal as a motion for leave to appeal under Federal Rule of Bankruptcy Procedure 8004(d). View "In re: Lane" on Justia Law

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Wyndham has four Tennessee resorts, where front-line sales employees sell ownership interests (timeshares) to people who do not own Wyndham timeshares. In-house sales employees sell upgraded timeshares to existing owners. Discovery sales employees sell non-ownership trials. Wyndham’s sales people receive a minimum-wage draw based on the hours they record each week, which is deducted from their commissions. In 2009, Wyndham began paying overtime. Plaintiffs filed suit (Fair Labor Standards Act, 29 U.S.C. 207(a)(1)), alleging that Wyndham required sales employees to underreport their hours or altered their timesheets to avoid paying overtime. The district court certified 156 employees from all three positions as a collective action. After a bench trial, the court found that, on average, each employee had worked 52 hours per week during the recovery period and awarded $2,512,962.91 in overtime pay and an equal amount in liquidated damages. The Sixth Circuit affirmed in part. The court properly certified the collective action as to in-house and front-line salespeople. The discovery salespeople, however, had a different title and sold a different product. A common policy cannot overcome the factual differences between the groups (what they sold and when they started work), which goes to the heart of the claim (total hours worked each week). The evidence, “representative, direct, circumstantial, in-person, by deposition, or otherwise,” supports a finding that Wyndham violated the Act by failing to pay overtime. The court remanded the issue of damages. View "Pierce v. Wyndham Vacation Resorts, Inc." on Justia Law

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Edmonds and Hall were together convicted in state court of beating and sodomizing a homeless man to death. After their joint state appeals were rejected, Hall brought a federal habeas action, 28 U.S.C. 2254, which was rejected on the merits. Then Edmonds brought a section 2254 collateral attack, arguing that his conviction was similarly infected by constitutional error. Rather than assess all of Edmonds’s claims on the merits, the district court held that the law-of-the-case doctrine precluded Edmonds from obtaining relief on four claims that were rejected in Hall’s collateral action. The Sixth Circuit reversed and remanded. The law-of-the-case doctrine applies only to later decisions in the same case. Different habeas actions brought by different petitioners are different cases. A post-conviction habeas action is not a subsequent stage of the underlying criminal proceedings; it is a separate civil case. Applying the law-of-the-case doctrine across separate habeas cases would deprive the second petitioner of the opportunity to present his own arguments, implicating due process concerns. The court noted that due process limits res judicata to preclude parties from contesting only matters that they have had a full and fair opportunity to litigate; a person who was not a party to a suit generally has not had a full and fair opportunity to litigate the claims and issues settled in that suit. Edmonds’s claims must be assessed on their merits. View "Edmonds v. Smith" on Justia Law

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A Postal Inspector had probable cause to believe that a package being shipped from California contained drugs, obtained a search warrant, and examined its contents. It contained 1.5 pounds of crystal methamphetamine. Agents conducted a controlled delivery and arrested the recipient, who agreed to serve as a confidential informant, identified Ickes as the source of the methamphetamine, and provided evidence that correlated with Ickes’s California address. Because of a prior drug-related conviction, Ickes was subject to state-court-ordered probation, with a provision requiring him to submit to search and seizure of his person, residence, or vehicle, with or without a search warrant, without regard to probable cause. Ickes was arrested. Agents conducted a warrantless search of Ickes’s residence and vehicle and found U.S. Postal Service labels and tracking information that was used against Ickes at trial. The district court denied Ickes’s motion to suppress without an evidentiary hearing. Ickes was convicted and sentenced to 280 months of imprisonment. The Sixth Circuit affirmed. A defendant is not entitled to an evidentiary hearing if his argument is “entirely legal.” Ickes was subject to probation that included a search provision and the officers had a reasonable suspicion that Ickes was conspiring to distribute methamphetamine. For the duration of Ickes’s probation, he had diminished privacy interests and the government had a substantial interest in monitoring Ickes’s activities, so the police needed no more than reasonable suspicion to search his residence and vehicle. View "United States v. Ickes" on Justia Law

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MCEP, an acute care, for-profit hospital owned by 60 physicians and one corporate shareholder, opened in 2006. By 2009, MCEP’s existence as a physician-owned enterprise ended when it sold an ownership interest to Kettering Health Network, a competitor in the Dayton healthcare market. MCEP alleges that it failed because of the anticompetitive actions of Premier, a dominant healthcare network in the Dayton area. MCEP alleges that Premier contracted with area physicians and payers (insurers and managed-care plan providers) on the condition that they did not do business with MCEP. MCEP claims that Premier engaged in a conspiracy so devoid of benefit to the market as to be per se illegal under the Sherman Act, 15 U.S.C. 1. The Sixth Circuit affirmed summary judgment in favor of the defendants. To be per se illegal, a defendant’s conduct has to be so obviously anticompetitive that it has no plausibly procompetitive features. Premier’s contracts with payers and physicians had plausibly procompetitive features. It is plausible that panel limitations, which prohibited referrals to MCEP, lower the cost of defendants’ services and improve “cost effectiveness and efficiencies in the delivery of health care services.” View "Medical Center at Elizabeth Place, LLC v. Atrium Health System" on Justia Law

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Saginaw uses a common parking enforcement practice known as “chalking.” City parking enforcement officers use chalk to mark the tires of parked vehicles to track how long they have been parked. Parking enforcement officers return to the car after the posted time for parking has passed, and if the chalk marks are still there—a sign that the vehicle has not moved—the officer issues a citation. Taylor, a frequent recipient of parking tickets, sued the city and its parking enforcement officer, Hoskins, alleging that chalking violated her Fourth Amendment right to be free from unreasonable search. The district court dismissed , finding that, while chalking may have constituted a search under the Fourth Amendment, the search was reasonable. The Sixth Circuit reversed, characterizing the practice as a regulatory exercise. The chalking involves a physical intrusion and is intended to gather information. While automobiles have a reduced expectation of privacy, the court concluded that the need to deter drivers from exceeding the time permitted for parking—before they have even done so—is not sufficient to justify a warrantless search under the community caretaker rationale. View "Taylor v. Saginaw" on Justia Law

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In 2018, the Sixth Circuit reversed the district court’s order granting a preliminary injunction that had enjoined Lexington-Fayette Urban County Government from enforcing Ordinance 25-2017, which restricts the delivery of “unsolicited written materials” to six enumerated locations and provides for civil penalties for violations. On remand, further proceedings were taken in the district court. The Sixth Circuit affirmed the district court in concluding that Ordinance 25-2017 constitutes a valid time, place, and manner regulation of speech. View "Lexington H-L Services, Inc. v. Lexington-Fayette Urban County Government" on Justia Law