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Weekly Case Digests – October 1, 2021 – October 15, 2021

By: Derek Hawkins//October 15, 2021//

Weekly Case Digests – October 1, 2021 – October 15, 2021

By: Derek Hawkins//October 15, 2021//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Life Spine, Inc., v. Aegis Spine, Inc.,

Case No.: 21-1649

Officials: SCUDDER, ST. EVE, and KIRSCH, Circuit Judges.

Focus: Preliminary Injunction – Trade Secret Misappropriation

This trade secret case arises from a short‐lived business relationship between two companies that sell spinal implant devices. Life Spine, Inc. makes and sells a spinal implant device called the ProLift Expandable Spacer System. Aegis Spine, Inc. contracted with Life Spine to distribute the ProLift to hospitals and surgeons. In the distribution agreement, Aegis promised to protect Life Spine’s confidential information, act as a fiduciary for Life Spine’s property, and refrain from reverse engineering the ProLift. Despite these promises, Aegis funneled information about the ProLift to its parent company, L&K Biomed, Inc., to help L&K develop a competing spinal implant device. Shortly after L&K’s competing product hit the market, Life Spine sued Aegis for trade secret misappropriation and breach of the distribution agreement. Following a nine‐day evidentiary hearing, the district court granted Life Spine’s motion for a preliminary injunction barring Aegis and its business partners from marketing the competing product.

Aegis now appeals. It submits that the district court’s injunction rests on a flawed legal conclusion—namely, that a company can have trade secret protection in a device that it publicly discloses through patents, displays, and sales. We see the issue differently, however. As a legal matter, we do not dispute—nor does Life Spine—that information in the public domain cannot be a trade secret. But the issue here is factual: Did Life Spine publicly disclose the specific information that it seeks to protect by patenting, displaying, and selling the ProLift? The district court found that the answer was no, and Aegis must show that its finding was clear error. It has not done so. Finding no basis to upset the district court’s meticulous analysis, we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Lloyd Robi

Case No.: 20-1790

Officials: RIPPLE, HAMILTON, and ST. EVE, Circuit Judges.

Focus: Court Error – Restitution

Lloyd Robl, working as an unlicensed and uninsured asbestos abatement contractor, undertook asbestos removal and disposal services for clients in Minnesota and Wisconsin. After a grand jury returned a seventeen-count indictment against Mr. Robl, he entered into a plea agreement. He pleaded guilty to one count of wire fraud for falsely holding himself out as a licensed and insured asbestos abatement contractor as part of a larger scheme to defraud customers. He also pleaded guilty to one count of knowingly releasing asbestos into the ambient air by burning asbestos-containing material in burn piles and in burn barrels at his home. The district court sentenced Mr. Robl to a total of 144 months’ imprisonment and entered its judgment on September 16, 2019. In doing so, it noted that it had not yet determined a restitution amount and set a restitution hearing.

At Mr. Robl’s request, the district court cancelled the initial restitution hearing until after the disposition of his then-pending direct appeal. Mr. Robl later moved to dismiss his initial appeal with prejudice, and we granted that motion. The district court then set a new restitution hearing. However, after a telephonic status hearing, at which Mr. Robl was not present but was represented by counsel, the restitution hearing was again cancelled, and the district court subsequently entered restitution in the amount of $94,031.41.

Mr. Robl now appeals that restitution order. He first challenges the district court’s jurisdiction to enter restitution. He further challenges the district court’s award of $94,031.41 and contends that the district court denied him his rights to be present and to speak as guaranteed by Federal Rules of Criminal Procedure 43(a) and 32(i)(4).

We conclude that the district court had jurisdiction to enter the restitution order and that it committed no error in the course of adjudicating the amount of restitution. We therefore affirm the judgment of the district court.

Affirmed

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7th Circuit Court of Appeals

Case Name: Tom Reed, et al., v. Brex, Inc., et al.,

Case No.: 20-1697

Officials: SYKES, Chief Judge, and HAMILTON and BRENNAN, Circuit Judges.

Focus: Summary Judgment – Issue of Material Fact

At the center of this overtime pay case is a complicated payment scheme for auto repair technicians. The Fair Labor Standards Act generally requires that covered workers be paid extra for overtime work, but it exempts from that requirement some retail and service employees who are paid bona fide commissions. Plaintiffs Tom Reed and Michael Roy are auto repair technicians for defendant Brex, Inc. They claim that Brex’s payment plan is not a true commission, so that under the Act they are paid hourly wages and thus are entitled to overtime pay. Brex counters that, when one peels back the layers of its complex payment system, it is in fact a bona fide commission based on each technician’s sales during a pay period. The district court granted summary judgment for Brex based on the bona fide commission exemption.

Reed and Roy argue that genuine issues of material fact preclude summary judgment on this theory, but their arguments are not persuasive. First, we reject their attempts to cite new facts and calculations for the first time on appeal for reasons we discussed above. Second, plaintiffs characterize regulatory interpretation as a question of fact for the jury—but they do not contest the actual facts, which are that Brex technicians are paid a straight commission 84 percent of the time. Plaintiffs have not cited any evidence from which a jury could conclude that the guarantee is actually a salary, even considering the modest hourly bonuses offered to well-credentialed technicians. See Yi; 480 F.3d at 510 (affirming summary judgment even though technicians were paid different baseline hourly rates based on skill and experience). Reed and Roy make other undeveloped factual arguments in favor of reversal, but such arguments and legal arguments unsupported by pertinent authority are waived. See, e.g., Williams v. Board of Education of City of Chicago, 982 F.3d 495, 511 (7th Cir. 2020). They claim that the fact that the guaranteed wage floor is paid for 16 percent of all workweeks raises an issue of fact for the jury as to whether the guarantee operates as an integral part of a true commission system. That figure shows only that the guarantee occasionally guarantees. And the Act permits guarantees. Plaintiffs’ observation of this fact, without any citation to relevant authority or attempt to situate Brex’s practices within the permissive statutory and regulatory framework, cannot defeat summary judgment on its own. That is especially true here, where the undisputed evidence presented to the district court showed that there was substantial hourly and weekly variation in pay and that the guarantees are therefore “computed in accordance with a bona fide commission payment plan or formula under which the computed commissions vary in accordance with the employee’s performance on the job.” 29 C.F.R. § 779.416(b). We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Brenda Quinn, as administrator for the Estate of Travis Fredrickson v. Wexford Health Sources, Inc., et al.,

Case No.: 20-1483

Officials: EASTERBROOK, WOOD, and BRENNAN, Circuit Judges.

Focus: Prisoner – Deliberate Indifference

Travis Fredrickson was a troubled person. Events not pertinent to this appeal landed him in Illinois’s prison system, where he spent time at several institutions. Throughout that time, he received services to manage his serious mental-health problems, which included anxiety, depression, and the effects of long-term drug dependence. While in custody at the Pinckneyville Correctional Center (operated by the Illinois Department of Corrections, or IDOC), he died by suicide.

Frederickson’s mother and representative, Brenda Quinn, filed this lawsuit under 42 U.S.C. § 1983 for violations of her son’s Eighth Amendment rights two years to the date after his death. She alleges that several IDOC employees, of whom two now remain, showed deliberate indifference to her son’s risk of harm, and she accuses Wexford Health Sources, Inc., which contracts with Illinois to provide health services in its prisons, of failing to implement and follow procedures to ensure that incarcerated persons receive continuous mental-health services during transfers between IDOC facilities. The district court granted the defendants’ motions for summary judgment. We agree with its assessment of the record, and so we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Jason L. White v. United States of America

Case No.: 17-2749

Officials: EASTERBROOK, WOOD, and BRENNAN, Circuit Judges.

Focus: Sentencing Guidelines – Enhancement

Jason White, convicted of possessing a firearm as a felon, petitions under 28 U.S.C. § 2255 to vacate, set aside, or correct his 30-year sentence. His sentence included an armed career criminal enhancement, which requires at least three previous convictions “for a violent felony or a serious drug offense.” 18 U.S.C. § 924(e)(1). After a change in the law, the parties agreed the sentencing court had relied on one of White’s previous convictions that no longer supported the enhancement. For that inapplicable conviction, the district court substituted in another—an Illinois state conviction for cocaine delivery—and concluded White still qualified as an armed career criminal. So the court denied his § 2255 petition.

Given two of our court’s recent decisions—Dotson v. United States, 949 F.3d 317 (7th Cir. 2020), and United States v. Ruth, 966 F.3d 642 (7th Cir. 2020)—reasonable jurists may debate whether a court may substitute one predicate conviction for another for a sentencing enhancement, as well as whether an Illinois cocaine conviction may serve as a predicate offense. We therefore granted White a certificate of appealability.

White’s petition falls short, however. Not only did he have fair notice that the substitute conviction could be used as a predicate offense, but waiver and procedural default also foreclose his challenge on both questions. We therefore affirm the denial of his petition.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Allen Teague, et al.,

Case No.: 20-3132

Officials: WOOD, ST. EVE, and KIRSCH, Circuit Judges.

Focus: Sentencing Guidelines – Supervised Release

One component of a federal criminal sentence may, and sometimes must, be a period of supervised release that begins after the offender has completed his time in prison. 18 U.S.C. § 3583(a). Statutes usually have something to say about the length of that period. Often they confer considerable discretion on the district court, but there are instances in which they specify the required duration or range. See, e.g., 21 U.S.C. § 841(b)(1)(C).

Those rules, however, pertain to the initial sentence a defendant receives. The picture is different for a person who has completed his term of incarceration and has begun serving his term of supervised release. If that person violates the conditions of his supervised release, his probation officer may move for revocation of supervised release. This case deals with the choices available to the court in the latter circumstance—specifically, whether a term of supervised release that is mandatory for initial sentencing remains a mandatory part of any new sentence after revocation. The government concedes that the answer is no, and that the district court erred when it came to the opposite conclusion. After taking an independent look at the issue, we too conclude that revocation operates under different rules. We therefore vacate the terms of supervised release imposed on the two defendants before us and order a remand for reconsideration under the correct standards.

Vacated in part. Remanded in part.

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7th Circuit Court of Appeals

Case Name: City of Taylor Police and Fire Retirement System v. Zebra Technologies Corporation, et al.,

Case No.: 20-3258

Officials: EASTERBROOK, BRENNAN, and SCUDDER, Circuit Judges.

Focus: Securities Exchange Act Violation – Retrospective Statements

The City of Taylor Police and Fire Retirement System contends that Zebra Technologies Corporation defrauded investors by making bad predictions during a corporate consolidation. Zebra manufactures commercial electronics such as barcode scanners and receipt printers. In 2014 it acquired a division of Motorola Solutions, Inc., that had a similar line of products. Zebra began to integrate Motorola’s assets and operations with its own. Initially Zebra’s executives touted the savings expected from the combination and announced that the process was “progressing as planned.” But consolidation proved more onerous than anticipated, leading to expenditure of an additional $200 million and a decline in Zebra’s share price.

The Retirement System filed this suit under §10(b) of the Securities Exchange Act, 15 U.S.C. §78j(b), and 17 C.F.R. §240.10b-5, seeking to represent a class that purchased Zebra’s stock between November 2014 and November 2015. The Retirement System asserts that Zebra, CEO Anders Gustafsson, and CFO Michael Smiley duped investors by knowingly issuing false statements about the integration of Motorola’s assets with Zebra’s. The district judge dismissed the complaint, finding that the Retirement System failed to state an adequate §10(b) claim and did not satisfy the pleading requirements of the Private Securities Litigation Reform Act. 2020 U.S. Dist. LEXIS 191627 (N.D. Ill. Oct. 16, 2020).

The Retirement System’s complaint identifies a variety of asserted misrepresentations. Some consist of optimistic projections. When the acquisition closed, Zebra predicted that the “synergies” of combining Motorola’s assets with Zebra’s would yield substantial recurring savings. The Retirement System complains that Zebra did not qualify that forecast with the ongoing costs of integration. Later, as consolidation was underway, Zebra projected a gross profit margin of between 45.5 and 46.5 percent for the second quarter of 2015. The actual margin turned out to be 44.2 percent. The complaint also contends that Zebra’s executives knew about issues plaguing integration but told investors that all was well with the process. Most notably, in March 2015, Gustafsson represented that integration was “progressing as planned.”

Retrospective disclosures can and should be precise because corporations generally possess good information about completed operations. The law tolerates greater imprecision from forecasts because predicting the future is an uncertain enterprise. So too is speaking about a developing process, especially when another corporation’s assets are involved. Zebra made retrospective disclosures about the difficulties it encountered (and surmounted) when integrating Motorola’s assets, but none has been challenged. Instead, the Retirement System elected to challenge only statements made before or during integration. The fatal flaw of the Retirement System’s suit is that it seeks to apply rules covering retrospective statements to ongoing developments. Unexpected difficulties that crop up in any corporate consolidation are a business problem, not a securities problem. Because the plaintiff has failed to state a viable claim under the Securities Exchange Act, the district court’s dismissal must be affirmed.

Affirmed

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7th Circuit Court of Appeals

Case Name: Christopher Bilek v. Federal Insurance Company, et al.,

Case No.: 20-2504

Officials: WOOD, HAMILTON, and KIRSCH, Circuit Judges.

Focus: TCPA – Jurisdiction

Christopher Bilek received two unauthorized robocalls soliciting health insurance that he alleged violated the Telephone Consumer Protection Act and the Illinois Automatic Telephone Dialing Act. Bilek sued Federal Insurance Company and Health Insurance Innovations on a vicarious liability theory, claiming that defendants’ agents generated the unauthorized robocalls. To support his agency allegations, Bilek alleged a web of business relationships: Federal Insurance Company contracted with Health Insurance Innovations to sell its insurance; Health Insurance Innovations hired lead generators to effectuate telemarketing; and the lead generators made the unauthorized robocalls that form the basis of Bilek’s claims here.

Though neither Federal Insurance Company nor Health Insurance Innovations initiated the robocalls, Bilek sought to hold defendants vicariously liable for the lead generators’ unauthorized calling under three agency theories: actual authority, apparent authority, and ratification. The district court dismissed Bilek’s complaint, holding that Bilek failed to plausibly allege agency on any of these grounds. For that reason, the district court dismissed Bilek’s claims against Federal Insurance Company for failure to state a claim under Rule 12(b)(6), and it dismissed Health Insurance Innovations for lack of personal jurisdiction under Rule 12(b)(2). We disagree. While we express no view on whether Bilek will ultimately succeed in proving an agency relationship between the lead generators and either Federal Insurance Company or Health Insurance Innovations, Bilek alleges enough to show an agency relationship between the lead generators and Health Insurance Innovations. As a consequence, the district court erred in finding it lacked personal jurisdiction over Health Insurance Innovations. We reverse and remand.

Reversed and remanded

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7th Circuit Court of Appeals

Case Name: Beverly Zylstra, et al., v. DRV, LLC,

Case No.: 20-1949

Officials: ROVNER, HAMILTON, and SCUDDER, Circuit Judges.

Focus: Breach of Implied Warranty

Bernard and Beverly Zylstra spent close to $100,000 on a brand-new recreational vehicle in order to enjoy travel and recreation during their retirement years. One can imagine their disappointment when they began to collect a long list of defects, large and small, as they began their adventures. As the list grew, so did their frustration until, on August 27, 2018, they filed suit against the manufacturer, DRV, LLC, for breach of express and implied warranties under state law, violation of the federal Magnuson-Moss Act (MMWA), and violation of state deceptive practices acts. Although we sympathize with the frustrations the Zylstra’s experienced trying to rectify the long list of problems, we uphold the district court’s grant of summary judgment for DRV, as even in the light most favorable to the Zylstras, DRV never had a reasonable opportunity to repair the defects as required under the warranty and therefore the Zylstras’ claims cannot survive.

Affirmed

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7th Circuit Court of Appeals

Case Name: Tamika Graham v. Board of Education of the City of Chicago, et al.,

Case No.: 19-2745

Officials: EASTERBROOK, ROVNER, and HAMILTON, Circuit Judges.

Focus: ERISA – Pension and Health Benefits

Chicago offers public-school teachers higher pay if they earn extra college credits. Tamika Graham sought a higher salary under this program in July 2015, only to have her application ignored. She tried again in September, and this time she was not ignored. Instead she was fired on the ground that her application had been backdated, which the Board of Education took as fraud. A hearing officer ordered her reinstated with back pay, but the Board did not honor this decision in full, published a declaration that she is a fraudster, and refused to consider her for open positions. These and all other factual statements come from her complaint, which we must accept at this stage of the litigation.

Graham contends that the school system violated 42 U.S.C. §1983 by discriminating against her on account of sex and race, violated the Employee Retirement Income Security Act (ERISA) by depriving her of pension and health benefits, and violated an Illinois law that requires the prompt payment of wages. She has some other legal theories as well, and we explain later why they need not be discussed. As for the three we have mentioned: the district judge dismissed the complaint on the ground that it does not state a claim on which relief may be granted. Fed. R. Civ. P. 12(b)(6). The judge stated that the §1983 claim fails because the complaint does not identify other employees who received better treatment from the school system, that the ERISA claim fails because the school system’s plans are exempt from ERISA, and that the wage payment claim fails because the correct calculation of Graham’s pay depends on interpreting a collective-bargaining agreement, which the judge thought preempted by federal labor law. See 2019 U.S. Dist. LEXIS 7579 (N.D. Ill. Jan. 16, 2019) (dismissing with leave to file an amended complaint), 2019 U.S. Dist. LEXIS 110365 (July 2, 2019) (dismissing the amended complaint and terminating the suit).

With respect to all but the ERISA, §1983, and late-payment claims, the judgment of the district court is vacated, and the case is remanded with directions to dismiss for want of a justiciable controversy. With respect to the §1983 and late-payment claims, the judgment is vacated, and the case is remanded for proceedings consistent with this opinion. With respect to the ERISA claim, the judgment is affirmed.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Mark McGill

Case No.: 19-2636

Officials: KANNE, BRENNAN, and SCUDDER, Circuit Judges.

Focus: Warrantless Search and Seizure – Suppression of Evidence

During a visit to Mark McGill’s home, McGill’s probation officer seized a cell phone without warrant to do so. Law enforcement later discovered thousands of images of child pornography on the phone and charged McGill accordingly. McGill, arguing that his phone had been unlawfully seized, moved to suppress the phone and all evidence obtained from it.

The district court denied this motion on a number of independent grounds, concluding that McGill’s cell phone was lawfully seized or otherwise need not be suppressed. We agree with this conclusion and thus affirm the district court’s decision denying McGill’s motion to suppress.

Affirmed

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7th Circuit Court of Appeals

Case Name: Fredy Sosa v. Onifdo, Inc.,

Case No.: 21-1107

Officials: KANNE, SCUDDER, and KIRSCH, Circuit Judges.

Focus: Arbitration – Equitable Estoppel

Plaintiff Fredy Sosa, a user of the marketplace application OfferUp, registered his identity to become a verified user on the app. The verification process involved using the app’s TruYou feature with technology provided by defendant Onfido, Inc. Sosa has since sued Onfido under the Illinois Biometric Information Privacy Act alleging that the TruYou feature used facial recognition technology to collect his biometric identifiers without his consent.

The merits of Sosa’s BIPA claim are not at issue at this early stage. This appeal instead concerns whether Sosa may continue litigating his action against Onfido in federal court. Onfido argues that this case belongs in arbitration because it is entitled to enforce an arbitration clause in the Terms of Service contract between Sosa and OfferUp. Though Onfido is not a party to the Terms of Service, it argues that it is entitled to enforce the arbitration clause under three separate nonparty contract enforcement theories: third-party beneficiary, agency, and equitable estoppel. Adding another layer to this dispute, this appeal presents a choice-of-law question. Because the Terms of Service has a Washington choice-of-law provision, Onfido argues that Washington law, rather than Illinois law, must be applied to determine its enforcement rights under the contract.

The district court rejected each of Onfido’s nonparty contract enforcement theories and denied Onfido’s motion to compel individual arbitration. On the choice-of-law issue, it held that Onfido failed to establish that there was an outcome determinative difference between Illinois and Washington law, and since Onfido articulated no difference between the two, it applied Illinois law—the law of the forum state—to determine Onfido’s right to enforce the arbitration clause. In so doing, the district court held that Onfido failed to establish that it was a third-party beneficiary of the Terms of Service or that it could otherwise enforce the contract’s arbitration provision either as an agent of OfferUp or on equitable estoppel grounds.

We agree with the district court in all respects. In the district court proceedings, Onfido never suggested any difference between Illinois and Washington law, and the district We agree with the district court in all respects. In the district court proceedings, Onfido never suggested any difference between Illinois and Washington law, and the district court thus properly applied Illinois law. Further, nothing in the Terms of Service designate Onfido as a third-party beneficiary of that contract, and the record is devoid of evidence establishing that Onfido is an agent of OfferUp, or that Sosa should be equitably estopped from contesting Onfido’s right to enforce the arbitration provision. Because Onfido failed to establish any right to enforce the arbitration provision as a nonparty to the Terms of Service, we affirm the district court’s denial of Onfido’s motion to compel individual arbitration.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Dameion Wyatt

Case No.: 20-2382

Officials: SYKES, Chief Judge, and SCUDDER and KIRSCH, Circuit Judges.

Focus:  Restitution

Dameion Wyatt victimized six females, each of whom acted as prostitutes under Wyatt’s abusive supervision over varying periods from September 2011 through May 2014. He pleaded guilty to one count of inter‐state sex trafficking and was sentenced to ten years’ imprisonment. Wyatt’s conviction triggered certain mandatory restitution statutes, and the district court took the restitution issue under advisement at sentencing. Following negotiations between the parties, written objections, oral argument, and supplemental briefing, the district court entered a carefully reasoned order requiring Wyatt to pay restitution to three victims of his trafficking: $12,750 to Adult Victim 1 (“AV‐1”), $45,200 to Adult Victim 3 (“AV‐3”), and $37,125 to Adult Victim 5 (“AV‐5”), totaling $95,075.

Wyatt now appeals the restitution order, arguing that the district court improperly delayed the restitution determination, did not rely on a statutorily required “complete accounting” of the victims’ losses (and otherwise erred by relying on improper evidence and, as a result, ordered too much restitution), deprived him of counsel during the restitution process, and improperly ordered restitution outside of his presence. We find no reversible error in the restitution proceedings or in the district court’s calculation of the proper amount of restitution, and thus affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America ex rel. Tracy Schutte, et al., v. SuperValu Inc., et al.,

Case No.: 20-2241

Officials: ROVNER, HAMILTON, and ST. EVE, Circuit Judges.

Focus: Statutory Interpretation – FCRA and False Claims Act – Scienter

This Court is no stranger to False Claims Act qui tam actions. The present appeal, however, contains a novel question for this Circuit: does the Supreme Court’s interpretation of the Fair Credit Reporting Act’s scienter provision in Safeco Insurance Company of America v. Burr, 551 U.S. 47 (2007), apply with equal force to the False Claims Act’s scienter provision? We join the four circuits that have answered that question in the affirmative and hold that it does.

This issue comes to us in a lawsuit against Defendants (collectively, “SuperValu”), which claims that SuperValu knowingly filed false reports of its pharmacies’ “usual and customary” (“U&C”) drug prices when it sought reimbursements under Medicare and Medicaid. SuperValu listed its retail cash prices as its U&C drug prices rather than the lower, price-matched amounts that it charged qualifying customers under its discount program. Medicaid regulations define “usual and customary price” as the price charged to the general public. Based on our decision in U.S. ex rel. Garbe v. Kmart Corporation, 824 F.3d 632 (7th Cir. 2016), the district court held that SuperValu’s discounted prices fell within the definition of U&C price and that SuperValu should have reported them. Relators Tracy Schutte and Michael Yarberry (the “Relators”) thus established falsity, the first prong of their False Claims Act (“FCA” or “the Act”) claims. On the scienter prong, however, the court applied the Safeco standard to the FCA and held that SuperValu did not meet it.

We agree that the scienter standard articulated in Safeco applies to the FCA. Here, as with the Fair Credit Reporting Act (“FCRA”), there is no statutory indication that Congress meant its usage of “knowingly,” or the scienter definitions it encompasses, to bear a different meaning than its common law definition. We further hold that while the FCA’s scienter provision is defined via three distinct definitions, a failure to establish the Safeco standard as a threshold matter precludes liability under any of these definitions. Applying this standard to the case at hand, SuperValu did not act with the requisite knowledge under the FCA. The judgment of the district court is affirmed.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Jesus Raul Beltran-Leon

Case No.: 19-2615

Officials: EASTERBROOK, ROVNER, and WOOD, Circuit Judges.

Focus: Sentencing Guidelines

Jesus Raul Beltran-Leon (“Beltran”) pleaded guilty to one count of conspiracy to possess with intent to distribute controlled substances, in violation of 21 U.S.C. §§ 841(a) and 846. Although his properly calculated guidelines range was life in prison, the court ultimately sentenced Beltran to twenty-eight years’ imprisonment. Beltran challenges that sentence on multiple grounds. We affirm Beltran’s substantially below-guidelines sentence.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Elijah Vines

Case No.: 19-2316

Officials: EASTERBROOK, MANION, and ROVNER, Circuit Judges.

Focus: Suppression of Evidence – Expert Testimony

Following a jury trial, Elijah Vines was found guilty of five counts related to sex trafficking of a minor, including: sex trafficking of a child, in violation of 18 U.S.C. §§ 1591(a)(1), (b)(2), and (c); sex trafficking of a child, in violation of 18 U.S.C. §§ 1591(a)(2) and (b)(2); conspiracy to commit sex trafficking of a minor, in violation of 18 U.S.C. §§ 1594(c) and 1591; transportation of a minor, in violation of 18 U.S.C. § 2423(a); and interstate travel in aid of racketeering, in violation of 18 U.S.C. § 1952(a)(3). He was sentenced to 480 months’ imprisonment for Counts I-IV, and 60 months’ imprisonment for Count V, to be served concurrently, placed under supervised release for life, and ordered to pay $13,500 in restitution to the victim (“GMC”).

The evidence at trial demonstrated that GMC was a fifteen-year-old girl who ran away from her foster home in August 2016, and in September 2016 was arrested for shoplifting in Ohio. She did not provide her real name or age to police in order to avoid being returned to the foster system. She contacted a friend, Shayana, to pick her up from jail, and Shayana arrived accompanied by the defendant Elijah Vines. Vines was involved in criminal activity that included selling cellphones as part of a scam and prostituting females. He transported GMC to his residence and then to a hotel, and subsequently began prostituting GMC. To further those unlawful ends, he posted ads of GMC online, including on the website Backpage, which was a site commonly used to advertise prostitutes to customers. He also arranged for her to meet with those customers to engage in sex acts, and she gave the money paid for those acts to him. Vines was aware that GMC was a minor.

In October 2016, GMC was taken into custody as a runaway by law enforcement and was evaluated at the emergency room at Riley Children’s Hospital in Indianapolis. She informed them that she had run away from home, and that she had been forced to engage in sex in exchange for drugs and money. An examination by doctors determined that she had injuries “too numerous to count.”

Vines now appeals his convictions, arguing that the trial court erred in allowing the testimony of an expert witness that related to the credibility of GMC; denying his motion to suppress GMC’s identification of Vines through a Facebook photo; and denying the motions to suppress evidence obtained from a search of Vines’s iPhone and from a search of his Facebook and iCloud accounts. We address these challenges in turn.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: St. Croix County v. Kelly M. Lagerstrom

Case No.: 2019AP928

Officials: STARK, P.J.

Focus: Admission of Evidence – Expert Testimony

A jury found Kelly Lagerstrom guilty of operating a motor vehicle with a prohibited alcohol concentration (PAC), as a first offense. Lagerstrom appeals, arguing he is entitled to a new trial because the circuit court improperly admitted an expert witness’s testimony concerning retrograde extrapolation of Lagerstrom’s blood alcohol concentration (BAC). We conclude that pursuant to State v. Giese, 2014 WI App 92, 356 Wis. 2d 796, 854 N.W.2d 687, the court did not erroneously exercise its discretion by admitting the retrograde extrapolation testimony. We therefore affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Donald Lavail Christopher

Case No.: 2020AP839

Officials: Stark, P.J., Hruz, and Nashold, JJ.

Focus: Plea Colloquy

Donald Christopher appeals from an order denying his postconviction motion for plea withdrawal based upon claims of a defective plea colloquy and several instances of ineffective assistance of counsel. We reject all of these claims and affirm.

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WI Court of Appeals – District III

Case Name: Douglas County Department of Health and Human Services

Case No.: 2020AP982

Officials: STARK, P.J.

Focus: Termination of Parental Rights

In this termination of parental rights (“TPR”) action, the Douglas County Department of Health and Human Services (“the County”) filed a petition to terminate David’s parental rights to his son, Dylan, based on two grounds: continuing need of protection or services (“continuing CHIPS”), see WIS. STAT. § 48.415(2); and failure to assume parental responsibility, see § 48.415(6). The jury found that both grounds existed, and the circuit court subsequently entered a dispositional order terminating David’s parental rights. David then filed a motion for postdisposition relief, which the court denied.

David now appeals, arguing that his trial attorney was constitutionally ineffective by: (1) failing to argue that the application of the amended version of the continuing CHIPS statute, WIS. STAT. § 48.415(2), in the TPR proceedings against David violated David’s right to due process; (2) failing to introduce evidence at the grounds trial regarding additional visits that occurred between David and Dylan; and (3) failing to object to testimony during the grounds trial about Dylan’s negative reactions to David during certain supervised visits. David also argues the evidence was insufficient to support a finding that he was notified of the potential grounds for termination of his parental rights, as required by § 48.415(2)(a)1., because the notice he received referred to the elements set forth in the prior version of the continuing CHIPS statute, rather than the amended version.

Based on our supreme court’s recent decision in Eau Claire County Department of Human Services v. S.E., 2021 WI 56, 397 Wis. 2d 462, 960 N.W.2d 391, we conclude David’s attorney was not ineffective by failing to argue that the application of the amended version of the continuing CHIPS statute violated David’s right to due process. We also conclude that even if David’s attorney performed deficiently by failing to introduce evidence of the additional visits and by failing to object to testimony about Dylan’s negative reactions to David, David has failed to show that those alleged errors prejudiced his defense. Finally, we conclude the evidence was sufficient to establish that David was notified of the potential grounds for termination of his parental rights, as required by WIS. STAT. § 48.415(2)(a)1. We therefore affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Peter D. Farnsworth

Case No.: 2020AP1367-CR

Officials: Stark, P.J., Hruz and Nashold, JJ.

Focus: Involuntary Commitment and Medication

Peter Farnsworth appeals an order committing him for treatment in order to restore him to competency to proceed in his criminal case, and subjecting him to involuntary medication. Farnsworth argues the circuit court erroneously ordered his involuntary medication under WIS. STAT. § 971.14(2)(f) (2019-20). The State concedes, and we agree, that the court erroneously exercised its discretion under § 971.14(2)(f) because the court had already found Farnsworth to be incompetent and he was no longer under an order for competency examination. Because we resolve Farnsworth’s appeal on statutory grounds, we adhere to the doctrine of constitutional avoidance and we decline to address Farnsworth’s other argument that § 971.14(2)(f) is facially unconstitutional. We reverse the court’s order for involuntary medication and remand for further proceedings consistent with this opinion.

Farnsworth also contends the circuit court erred by denying his motion to stay the involuntary medication order pending this appeal. The court’s decision to deny a stay, however, is moot. Because we stayed the involuntary medication order pending appeal and because we reverse the involuntary medication order in this decision, resolution of this issue will have no practical effect on the underlying controversy.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. MC.,

Case No.: 2021AP301

Officials: GUNDRUM, P.J.

Focus: Abuse of Discretion – Juvenile Court Jurisdiction Waiver

M.C. appeals from an order of the circuit court. He contends the court “erroneously exercise[d] its discretion when it waived M.C. into adult court without considering the suitability of the serious juvenile offender program.” We agree, and we reverse and remand for further proceedings consistent with this decision.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. M.T.W.,

Case No.: 2021AP420-FT

Officials: NEUBAUER, J.

Focus: CHIPS – Newly Discovered Evidence

M.T.W. appeals from a dispositional order entered after a jury verdict, adjudicating C.M.R.-W. as a child in need of protection or services (CHIPS). M.T.W. filed a postdisposition motion a year later contending that newly discovered evidence warranted a new trial. The circuit court denied the motion and M.T.W. appeals this as well. We affirm the court’s orders denying M.T.W.’s postdisposition motion and confirming the dispositional order.

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