Last Week in Federal Appeals (No. 47)
Last Week in Federal Appeals (No. 47)
Appellate decisions from the week of September 4-8, 2023
“Hot summer days call for a slice of watermelon: a juicy, red wedge with a green-and-white rind. Some candy companies evoke this image by using colors alone, making their candies red, white, and green. But the watermelon effect is significantly stronger if the red-white-and-green candy is shaped like a wedge. Because the tricolored shape is recognizable as watermelon flavored, the whole appearance is useful. So a candymaker cannot block competitors from using the combined shape and colors by trademarking that combination.”
~Judge Stephanos Bibas, Pim Brands, Inc. v. Haribo of America, Inc.
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Antonia is a 2023 graduate of Duquesne University’s Thomas R. Kline School of Law, where she served on the staff of the Duquesne Law Review and the editorial board of the Duquesne Energy & Environmental Law Journal. She joined Flannery | Georgalis full time this fall as a law clerk (bar results pending) in our Pittsburgh office.
Decision Summaries
First Circuit
Anvar v. Dwyer
The First Circuit held that constitutionality under the Twenty-first Amendment, which permits states to restrict alcohol sales, cannot be established though only “a theoretical benefit to public health and safety.” Thus, in remanding the case, the panel directed Rhode Island to present particularized evidence that its liquor license law is constitutional where it discriminates against out-of-state retailers, who are prohibited from delivering alcohol directly to Rhode Island consumers.
Second Circuit
Fuld v. Palestine Liberation Organization
The Second Circuit held that the Promoting Security and Justice for Victims of Terrorism Act of 2019 is unconstitutional because it “deems consent” to personal jurisdiction for the defendants in any civil action pursuant to the Anti-Terrorism Act. The panel explained that, because the legislation fails to recognize any conduct evincing an intention to submit to a court’s jurisdiction, it violates the Fifth Amendment’s Due Process Clause.
Third Circuit
Pim Brands, Inc. v. Haribo of America, Inc.
The Third Circuit held a candymaker cannot block competitors from using the combined shape and colors of a watermelon wedge by trademarking that combination. The panel explained that, because the watermelon shape and colors communicate the candy’s flavor, and thus are an unprotected functional design.
Hickey v. University of Pittsburgh
The Third Circuit reversed the decisions of two district courts below and held that students who attended the University of Pittsburgh and Temple University during the coronavirus pandemic adequately pleaded that the universities violated implied contracts with the students by retaining full tuition and fees after in-person learning was suspended. In the alternative, the panel also held that the students adequately pleaded that the universities were unjustly enriched by retaining full tuition and fees while substituting in-person learning for less expensive online learning.
Rogers v. Superintendent Greene SCI
The Third Circuit reversed a district court’s order denying habeas releif as to a defendant’s claim of ineffective assistance of counsel. The panel held that trial counsel was deficient when he failed to cross-examine two eyewitnesses who changed their testimony from prior proceedings and failed to object to the trial judge’s admonishments and threats toward the witnesses. The panel explained that these actions, taken as a whole, were prejudicial to the defendant and undermined the fairness of the conviction proceedings.
Seventh Circuit
United States v. White
The Seventh Circuit held the modern advisory sentencing guidelines regime prohibits a sentence that exceeds the statutory maximum associated with a charge. Based on that holding, the panel vacated and remanded the defendant’s 108-month sentence as unlawful and in excess of the 60-month cap on his conspiracy convictions.
Ninth Circuit
Saloojas, Inc. v. Aetna health of California, Inc.
The Ninth Circuit held that the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act does not provide a private right of action to enforce violations. Thus, the panel held that a provider of COVID-19 diagnostic testing cannot bring a claim against an insurance company for failing to reimburse the provider according to the requirements of the CARES Act.
Eleventh Circuit
United States v. Talley
Deepening a circuit split, the Eleventh Circuit joined the First Circuit and diverged from the Second, Third, Fourth, and Ninth Circuits in holding that a district court may not toll a defendant’s period of supervised release based on his fugitive status. Thus, the panel held that the district court here did not have authority to revoke the defendant’s supervised release after the term of supervision had already expired.
Any opinions expressed here are our own. This article is not legal advice; if you have a legal issue, you should consult an attorney.
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