Weekly Case Digests Feb. 23-27, 2015

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CIVIL

U.S. Supreme Court
Antitrust – State action immunity

A state dental board is not entitled to state action immunity from an antitrust action.

The Board’s argument that entities designated by the States as agencies are exempt from Midcal’s second requirement cannot be reconciled with the Court’s repeated conclusion that the need for supervision turns not on the formal designation given by States to regulators but on the risk that active market participants will pursue private interests in restraining trade. State agencies controlled by active market participants pose the very risk of self-dealing Midcal’s supervision requirement was created to address. See Goldfarb v. Virginia State Bar, 421 U. S. 773, 791. This conclusion does not question the good faith of state officers but rather is an assessment of the structural risk of market participants’ confusing their own interests with the State’s policy goals. While Hallie stated “it is likely that active state supervision would also not be required” for agencies, 471 U. S., at 46, n. 10, the entity there was more like prototypical state agencies, not specialized boards dominated by active market participants. The latter are similar to private trade associations vested by States with regulatory authority, which must satisfy Midcal’s active supervision standard. 445 U. S., at 105–106. The similarities between agencies controlled by active market participants and such associations are not eliminated simply because the former are given a formal designation by the State, vested with a measure of government power, and required to follow some procedural rules. See Hallie, supra, at 39. When a State empowers a group of active market participants to decide who can participate in its market, and on what terms, the need for supervision is manifest. Thus, the Court holds today that a state board on which a controlling number of decisionmakers are active market participants in the occupation the board regulates must satisfy Midcal’s active supervision requirement in order to invoke state-action antitrust immunity.

717 F. 3d 359, affirmed.

13-534 North Carolina State Board of Dental Examiners v. FTC

Kennedy, J.; Alito, J., dissenting.

Wisconsin Court of Appeals
Civil Procedure – statutory costs and attorney fees

APPEAL and CROSS-APPEAL from a judgment of the circuit court for Ashland County:  ROBERT E. EATON, Judge.  Affirmed in part; reversed in part and cause remanded with directions.

DISTRICT III; Ashland; ROBERT E. EATON, Hoover, P.J., Stark, Hruz, JJ.

2014AP001953 Pamela L. Weber v. Auto Owners Insurance Company

Wisconsin Court of Appeals
Civil Procedure – conflict of interest

APPEAL from a judgment and an order of the circuit court for Milwaukee County:  KAREN E. CHRISTENSON, Judge.  Affirmed.

DISTRICT I; Milwaukee; KAREN E. CHRISTENSON, Lundsten, Higginbotham, Sherman, JJ.

2013AP002614 JPMorgan Chase Bank National Association v. John D. Niemczyk

U.S. Court of Appeals For the Seventh Circuit
Civil Procedure – Discovery

Where the plaintiff failed to comply with discovery, the district court properly granted summary judgment to the defendant.

“Kallal also complains about the district court’s decisions to suspend discovery until October 2011 and then to set a six-month time limit on discovery, ‘despite the fact that this was a complex product liability case.’ Perhaps he means to say that the court took an iron-fisted approach. But the record reflects a different reality: the district judge gave Kallal multiple opportunities and extensions in his filings and discovery requests. Although the court denied his last request for more discovery, that denial came at the end of a long line of requests the court had granted. Nothing in the court’s rulings on this aspect of the case amounts to reversible error.

Affirmed.

13-1786 Kallal v. CIBA Vision Corp., Inc.

Appeal from the United States District Court for the Northern District of Illinois, Pallmeyer, J., Wood, J.

Wisconsin Court of Appeals
Consumer Protection – Debtors – adjustment service companies

Where the petitioner received $4.2 million in fees, while paying less than $4 million to its client’s creditors, the DFI reasonably ordered it to disgorge fees.

“We acknowledge that WIS. STAT. § 218.02(1)(a), which has remained virtually unchanged since its enactment in 1935, see 1935 Wis. Laws, ch. 515, is not a model of clarity.  We reject, however, Morgan Drexen’s attempt to capitalize on the language of what it derides as an ‘arcane’ statute to argue for a meaning that would limit its application to only two types of Depression-era business practices.  A broad interpretation of the statute is in keeping with the statutory intent expressed in § 218.02(7), in which the legislature granted the Division the power to issue orders to ‘protect debtors from oppressive or deceptive practices’ and to ‘prevent evasions of this section.’ JK Harris, 293 Wis. 2d 753, ¶21.”

Affirmed.

Recommended for publication in the official reports.

2014AP1268 Morgan Drexen, Inc., v. DFI

Dist. II, Ozaukee County, Malloy, J., Reilly, J.

Wisconsin Court of Appeals
Contracts – breach – bad faith

APPEAL from a judgment of the circuit court for Dane County:  RICHARD G. NIESS, Judge.  Affirmed.

DISTRICT IV; Dane; RICHARD G. NIESS, Blanchard, P.J., Lundsten, Kloppenburg, JJ.

2013AP001465 Judy R. Norman-Nunnery v. Artisan and Truckers Cas. Co.

Wisconsin Court of Appeals
Contracts – attorney fees – sequential representation

APPEAL and CROSS-APPEAL from a judgment of the circuit court for Milwaukee County:  WILLIAM W. BRASH, Judge.  Affirmed.

DISTRICT I; Milwaukee; WILLIAM W. BRASH, Kessler, Brennan, JJ., Thomas Cane

2014AP000657 Hupy & Abraham, S.C. v. Mitchell Barrock

Wisconsin Court of Appeals
Employment – disability discrimination – alcohol abuse

APPEAL from an order of the circuit court for Kenosha County:  DAVID M. BASTIANELLI, Judge.  Affirmed.

DISTRICT II; Kenosha; DAVID M. BASTIANELLI, Brown, C.J., Neubauer, P.J., Gundrum, J.

2014AP000083 Chrysler Group LLC v. LIRC

Wisconsin Court of Appeals
Family Law – joint custody – religious practices

APPEAL from a judgment of the circuit court for Dane County:  C. WILLIAM FOUST, Judge.  Affirmed.

DISTRICT IV; Dane; C. WILLIAM FOUST, Blanchard, P.J., Sherman, Kloppenburg, JJ.

2013AP000826 Michel Moreau v. Aline Pepin

Wisconsin Court of Appeals
Family – maintenance – property division

APPEAL from a judgment of the circuit court for Green Lake County:  MARK T. SLATE, Judge.  Affirmed in part; reversed in part and cause remanded with directions.

DISTRICT II; Green Lake; MARK T. SLATE, Brown, C.J., Neubauer, P.J., Reilly, J.

2014AP000808 Sandra G. Shapiro v. Marc O. Shapiro, II

Wisconsin Court of Appeals
Family – protective placement

APPEAL from an order of the circuit court for Sheboygan County:  L. EDWARD STENGEL, Judge.  Reversed and cause remanded with directions.

DISTRICT II; Sheboygan; L. EDWARD STENGEL, REILLY, J.

2014AP002489 Sheboygan County v. Christopher A. G.

U.S. Court of Appeals For the Seventh Circuit
Immigration – Asylum; CAT

Where an asylum seeker indisputably committed perjury at some point in her claim, the claim was properly denied.

“After Keirkhavash filed her initial application for asylum, the MEK disavowed resort to violence. In September 2012 it was removed from the State Department’s list of terrorist organizations. If Keirkhavash had stuck to her original story (which the IJ believed), she might have received asylum. We cannot exclude the possibility that her first story was true and her recantation (and second asylum application) false. But whichever story—if either—is the truth, Keirkhavash’s confessed willingness to say whatever is necessary to obtain an immigration benefit has redounded to her detriment. The IJ and BIA have the support of substantial evidence in choosing to accept her recantation but disbelieve the replacement story.”

Petition Denied.

14-2063 Keirkhavash v. Holder

Petition for Review of an Order of the Board of Immigration Appeals, Easterbrook, J.

U.S. Court of Appeals For the Seventh Circuit
Income tax – Personal liability

Where a transaction had no economic purpose, and provided no source for the payment of income taxes, the tax court properly held the individual stockholders personally liable.

“The tax court found the shareholders liable for Woodside’s tax debt under both provisions. As a threshold matter, the asset sale—the triggering event for the tax liability—occurred before the transfer of Woodside’s cash to the shareholders, so both constructive-fraud provisions are in play. The tax court found that the cash from Woodside’s asset sale was transferred to the shareholders ‘without receiving a reasonably equivalent value,’ a requirement common to both constructive-fraud provisions. Indeed, the court found that Woodside received nothing. The court also found that the transaction left Woodside insolvent, a requirement for liability under section 242.05(1). Woodside’s tax liability exceeded $750,000, and it had just under $453,000 cash remaining after the shareholders were paid.11 See id. § 242.02(2) (‘A debtor is insolvent if the sum of the debtor’s debts is greater than all of the debtor’s assets at a fair valuation.’).”

Affirmed.

12-3144, 12-3145, 12-3146, 12-3147, 12-3148, 12-3149, 12-3150 & 12-3807 Feldman v. CIR

Appeals from the United States Tax Court, Sykes, J.

Wisconsin Supreme Court
Insurance – Notice-prejudice statutes

Wisconsin’s notice-prejudice statutes, Wis. Stat. §§ 631.81(1) and 632.26(2) do not supersede policy requirements that claims be reported during the policy period.

“In sum, the benefits to insurance companies and insureds of claims-made-and-reported policies, the statutory history underlying Wisconsin’s notice-prejudice statutes, the persuasive authority of other courts that have decided the question presented by this case, and the unreasonable results a contrary holding would produce persuade us that Wisconsin’s notice-prejudice statutes permit an insurance company to deny coverage without a showing of prejudice when an insured fails to report a claim within a claims-made-and-reported policy period.”

Reversed.

2013AP500 Anderson v. Aul

Abrahamson, C.J.

Wisconsin Court of Appeals
Juveniles – TPR

APPEAL from an order of the circuit court for Dane County:  AMY R. SMITH, Judge.  Affirmed.

DISTRICT IV; Dane; AMY R. SMITH, KLOPPENBURG, J.

2014AP002076 Dane Co. DHS v. Hershula B.

Wisconsin Supreme Court
Professional Responsibility – No discipline

Where attorney Michael M. Rajek’s violations of the rules of professional conduct were all minor, no discipline is ordered.

“Having considered the referee’s report and the parties’ briefs and oral argument on appeal, we conclude that Attorney Rajek committed the rule violations on five counts as found by the referee.  The violations, however, involved relatively minor failures of communication, including failures in some instances to provide certain notices or pieces of information to clients under Supreme Court Rule (SCR) 20:1.15(b)(4m), which sets forth the alternative procedure for handling advanced fees.  They did not involve the sufficiency or quality of the legal representation provided by Attorney Rajek to his clients.  Given the particular facts of this case and the nature of the violations, we determine that it is not necessary to impose any discipline on Attorney Rajek and that there is no basis for a restitution award.  We do require Attorney Rajek to pay costs, but we reduce the amount of costs he must pay to $8,500.”

2011AP387-D OLR v. Rajek

Per Curiam.

U.S. Court of Appeals For the Seventh Circuit
Public Health – Disability benefits

Where the ALJ rejected the Veteran Administration’s determination that a claimant was totally disabled, the denial of benefits is reversed.

“Several doctors noted that Hall had been in pain when examined, and this was some corroboration of his testimony. The administrative law judge could have resolved her doubts by ordering an MRI or directing a further examination by a medical expert. Her failure to do either leaves her determination that Hall is not disabled without a foundation in substantial evidence. Her failure to analyze and weigh the Veteran Administration’s determination that the applicant is totally disabled was a further oversight.”

Reversed and Remanded.

14-2498 Hall v. Colvin

Appeal from the United States District Court for the Southern District of Indiana, Magnus-Stinson, J., Posner, J.

CRIMINAL

Wisconsin Court of Appeals
Criminal Procedure – impelled testimony – harmless error

APPEAL from judgments of the circuit court for Milwaukee County:  JEFFREY A. WAGNER, Judge.  Affirmed.

DISTRICT I; Milwaukee; JEFFREY A. WAGNER, Blanchard, P.J., Lundsten, Sherman, JJ.

2013AP001901-CR           State v. Eduardo Ivanez

Wisconsin Court of Appeals
Criminal Procedure – plea withdrawal

APPEAL from a judgment and order of the circuit court for Winnebago County:  SCOTT C. WOLDT, Judge.  Affirmed.

DISTRICT II; Winnebago; SCOTT C. WOLDT, Blanchard, P.J., Sherman, Kloppenburg, JJ.

2014AP000837-CR           State v. Vincent E. Boyd

Wisconsin Court of Appeals
Criminal Procedure – plea withdrawal

APPEAL from a judgment and an order of the circuit court for Dane County:  STEPHEN E. EHLKE, Judge.  Reversed and cause remanded for further proceedings.

DISTRICT IV; Dane; STEPHEN E. EHLKE, Lundsten, Sherman, Kloppenburg, JJ.

2014AP001517-CR State v. Adam M. Sturdevant

Wisconsin Court of Appeals
Criminal Procedure – ineffective assistance

APPEAL from a judgment and an order of the circuit court for Milwaukee County:  MARY E. TRIGGIANO and LINDSEY C. GRADY, Judges.  Affirmed.

DISTRICT I; Milwaukee; MARY E. TRIGGIANO; LINDSEY C. GRADY; Curley, P.J., Kessler Brennan, JJ.

2014AP001362-CR State v. John Beal

Wisconsin Court of Appeals
Criminal Procedure – plea withdrawal – ineffective assistance

APPEAL from a judgment and an order of the circuit court for Milwaukee County:  CARL ASHLEY and STEPHANIE ROTHSTEIN, Judges.  Affirmed.

DISTRICT I; Milwaukee; CARL ASHLEY; STEPHANIE ROTHSTEIN; Curley, P.J., Brennan, J., Thomas Cane

2014AP001246-CR State v. Jeromy Miller

Wisconsin Court of Appeals
Criminal Procedure – judicial estoppel

APPEAL from a judgment and an order of the circuit court for Marathon County:  MICHAEL MORAN, Judge.  Affirmed.

DISTRICT III; Marathon; MICHAEL MORAN, Hoover, P.J., Stark, Hruz, JJ.

2014AP000092-CR State v. Bradley T. Rick

Wisconsin Court of Appeals
Criminal Procedure – Waiver

Where the defendant proceeded with sentencing despite knowing that there may have been a breach of the plea agreement, he waived any objection to any error.

“[W]e conclude that even if we accept Fortes’s assertion that the trial court, the State, and trial counsel erred at the plea hearing when they failed to accurately state the plea agreement and ascertain Fortes’s understanding of that agreement, Fortes waived his right to pursue that issue when he elected to proceed with sentencing instead of seeking plea withdrawal or an opportunity to determine the plea agreement.  While a defendant may generally be able to wait until after sentencing to decide whether to allege a deficiency in the plea colloquy, see Brown, 293 Wis. 2d 594, ¶38, we are not convinced that proposition applies where a concern about the defendant’s understanding of the plea has been raised prior to sentencing and the defendant specifically elects to proceed with sentencing.  Indeed, our supreme court has recognized that a defendant can waive his right to object if he ‘persist[s] in a plea strategy after the basis for the claim of error is known to [the] defendant.’ See Farrar v. State, 52 Wis. 2d 651, 660, 191 N.W.2d 214 (1971).  Here, Fortes explicitly elected to proceed with the sentencing, despite knowing that he had a different understanding of the plea agreement than the State and that the State intended to recommend a specific sentence.  In doing so, Fortes waived his right to subsequently seek plea withdrawal based on his misunderstanding of the plea agreement, the trial court’s plea colloquy, or the State’s decision to recommend a specific sentence.  See id.”

Affirmed.

Recommended for publication in the official reports.

2014AP714-CR State v. Fortes

Dist. I, Milwaukee County, Wagner, J., Kessler, J.

Wisconsin Court of Appeals
Evidence – other acts

APPEAL from an order of the circuit court for Monroe County:  MARK L. GOODMAN, Judge.  Affirmed.

DISTRICT IV; Monroe; MARK L. GOODMAN, Blanchard, P.J., Lundsten and Sherman, JJ.

2014AP000287 Daniel F. Konicek v. Hunton & Williams, LLP

Wisconsin Court of Appeals
Extended Supervision – revocation

APPEAL from an order of the circuit court for Milwaukee County:  PAUL R. VAN GRUNSVEN, Judge.  Affirmed.

DISTRICT I; Milwaukee; PAUL R. VAN GRUNSVEN, Curley, P.J., Kessler, J., Thomas Cane

2014AP000486 Christopher Green v. Brian Hayes

U.S. Court of Appeals For the Seventh Circuit
Habeas Corpus – Good time

Where a state prisoner lost good time credit based on a 20 percent chance that he had smuggled tobacco, the credit must be restored.

“If it’s assumed that any of the five could have placed the tobacco in the crawl space, then, as we know nothing about the other four, we could conclude only that Austin had a 20 percent probability of being the culprit. The district court deemed this sufficient evidence of his guilt to place the disciplinary sanctions imposed on him beyond judicial authority to reverse. Yet it seems odd, to say the least, that someone should be punished when there is an 80 percent probability that he is innocent.”

Reversed.

14-2574 Austin v. Pazera

Appeal from the United States District Court for the Northern District of Indiana, Moody, J., Posner, J.

Wisconsin Court of Appeals
Insurance – homeowner policies – owned property exclusions

APPEAL from a judgment of the circuit court for Milwaukee County:  DAVID A. HANSHER, Judge.  Affirmed.

DISTRICT I; Milwaukee; DAVID A. HANSHER, Curley, P.J., Kessler Brennan, JJ.

2014AP001183 Violetta Schapiro v. Vincent Toarmina

Wisconsin Court of Appeals
Motor Vehicles – OWI – jury instructions

APPEAL from a judgment of the circuit court for Taylor County:  ANN KNOX-BAUER, Judge.  Affirmed.

DISTRICT III; Taylor; ANN KNOX-BAUER, HRUZ, J.

2014AP001463 County of Taylor v. Dean T. Woyak

Wisconsin Court of Appeals
Motor Vehicles – OWI – operate

APPEAL from a judgment of the circuit court for Walworth County:  JOHN R. RACE, Judge.  Affirmed.

DISTRICT II; Walworth; JOHN R. RACE,Brown, C.J., Neubauer, P.J., Gundrum, J.

2014AP000536-CR State v. James N. Walters

U.S. Supreme Court
Sarbanes-Oxley – Undersized fish

18 U. S. C. §1519 of the Sarbanes-Exley Act does not extend to throwing undersized fish overboard.

The words immediately surrounding “tangible object” in §1519—“falsifies, or makes a false entry in any record [or] document”—also cabin the contextual meaning of that term. Applying the canons noscitur a sociis and ejusdem generis, “tangible object,” as the last in a list of terms that begins “any record [or] document,” is appropriately read to refer, not to any tangible object, but specifically to the subset of tangible objects used to record or preserve information. This moderate interpretation accords with the list of actions §1519 proscribes; the verbs “falsif[y]” and “mak[e] a false entry in” typically take as grammatical objects records, documents, or things used to record or preserve information, such as logbooks or hard drives. See Gustafson v. Alloyd Co., 513 U. S. 561, 575.

Use of traditional tools of statutory interpretation to examine markers of congressional intent within the Sarbanes-Oxley Act and §1519 itself thus call for rejection of an aggressive interpretation of “tangible object.”

733 F.3d 1059, reversed and remanded.

13-7451 Yates v. U.S.

Ginsburg, J.; Alito, J., concurring; Kagan, J., dissenting.

Wisconsin Court of Appeals
Search and Seizure – search warrants – probable cause

APPEAL from a judgment of the circuit court for Walworth County:  PHILLIP A. KOSS, Judge.  Affirmed.

DISTRICT II; Walworth; PHILLIP A. KOSS, Brown, C.J., Reilly, Gundrum, JJ.

2014AP000124-CR           State v. Michelle L. Kostuck-Hass

Wisconsin Court of Appeals
Search and Seizure – warrantless searches – consent

APPEAL from a judgment of the circuit court for Sheboygan County:  TERENCE T. BOURKE, Judge.  Affirmed.

DISTRICT II; Sheboygan; TERENCE T. BOURKE, BROWN, C.J.

2014AP000842-CR           State v. David M. Wagner

Wisconsin Court of Appeals
Sentencing – restitution

APPEAL from a judgment and an order of the circuit court for Brown County:  WILLIAM M. ATKINSON, Judge.  Affirmed.

DISTRICT III; Brown; WILLIAM M. ATKINSON, HRUZ, J.

2014AP001794-CR State v. Richard J. Nelson

Wisconsin Court of Appeals
Sexual Assault – sufficiency of the evidence

APPEAL from  judgments and an order of the circuit court for Grant County:  ROBERT P. VAN DE HEY, Judge.  Affirmed.

DISTRICT IV; Grant; ROBERT P. VAN DE HEY, Blanchard, P.J., Lundsten, Kloppenburg, JJ.

2014AP000518-CR           State v. Bernard Ikechukwel Onyeukwu