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Case Summaries

Commercial Law

[03/04] New York v. Golden Feather Smoke Shop, Inc.
In defendants' appeal from a preliminary injunction prohibiting the sale of untaxed cigarettes other than to members of the Unkechauge Nation for their personal use, the Second Circuit certifies the following questions to the New York Court of Appeals: 1) Does N.Y. Tax Law section 471-e, either by itself or in combination with the provisions of section 471, impose a tax on cigarettes sold on Native American reservations when some or all of those cigarettes may be sold to persons other than members of the reservation's nation or tribe?; 2) If the answer to Question 1 is "no," does N.Y. Tax Law section 471 alone impose a tax on cigarettes sold on Native American reservations when some or all of those cigarettes may be sold to persons other than members of the reservation's nation or tribe?

[03/02] Pfizer v. Sup. Ct.
In plaintiffs' action against Pfizer, the manufacturer of Listerine mouthwash, pursuant to the Unfair Competition Law (UCL) and False Advertising Law claiming that Pfizer marketed the mouthwash in a misleading manner by representing that the use of it can replace the use of dental floss in reducing plaque and gingivitis, defendant's petition for writ of mandate seeking to overturn an order certifying the class action is granted as the ruling certifying a class consisting of all persons who purchased Listerine in California during a six-month period is overbroad, and In re Tobacco II Cases, 46 Cal.4th 298 (2009), does not require a different disposition in this case.

[03/02] Ma v. Merrill Lynch, Pierce, Fenner & Smith, Inc.
In an action against Merrill Lynch based on unauthorized transfers from plaintiff's investment account, summary judgment for defendant is affirmed where New York U.C.C. Section 4-A-505, which imposes a one-year statute of repose on certain claims based on electronic funds transfers, bars plaintiffs' common law claims, which had longer limitations periods.

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Labor & Employment Law

[03/09] Equal Employment Opportunity Comm'n v. Hosanna-Tabor Evangelical Lutheran Church & Sch.
In an employment discrimination and retaliation action brought by a teacher at a religious school claiming violations of the ADA, the district court's grant of summary judgment in favor of the defendant based on the "ministerial exception" is vacated and remanded as, given the factual findings relating to plaintiff's primary duties as a teacher, the district court erred in its legal conclusion classifying her as a ministerial employee.

[03/08] McBeth v. Himes
In a 42 U.S.C. section 1983 action arising out of an investigation by the sheriff's office and the Colorado Department of Human Services that resulted in plaintiff surrendering her license to run a daycare facility in Colorado, partial summary judgment based on qualified immunity to defendant-officials is affirmed in part where: 1) plaintiff voluntarily relinquished her license before any suspension proceedings could take place; and 2) defendants made a prima facie showing that they acted objectively reasonably when they sought suspension of plaintiff's daycare license. However, the order is reversed in part where plaintiff failed to allege and prove that the state officials lacked cause to seek suspension of her license.

[03/05] Rhine v. Stevedoring Servs. of Am.
In a petition for review of a decision of the Benefits Review Board under 33 U.S.C. section 921(c) of the Longshore and Harbor Workers' Compensation Act, the petition is denied where: 1) a reasonable mind could have concluded that the Pacific Maritime Association Average adequately represented petitioner's annual earning capacity; and 2) the availability of alternative employment was determined by reference to two criteria: the claimant's physical abilities and the economic availability of particular jobs in the market.

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