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Bar News - August 19, 2015


US District Court Decision Listing

July 2015

* Published

BANKRUPTCY APPEAL

7/21/15
GT Advanced Technologies Inc., v. William K. Harrington, United States Trustee
Case No. 15-cv-069-LM, Opinion No. 2015 DNH 144

In this bankruptcy appeal, the debtor challenged the bankruptcy court’s decision to deny approval of an incentive plan for key employees who were insiders (“KEIP”) and a retention plan for another group of key employees (“KERP”). The case was remanded to the bankruptcy court for: (1) a determination of whether the performance targets in the KEIP were sufficiently rigorous to protect that plan from being deemed a disguised retention plan for insiders, which is generally impermissible; and (2) an evaluation of the KERP based upon the factors identified in In re Dana Corp., 358 B.R. 567 (Bankr. S.D.N.Y. 2006). 20 pages. Judge Landya B. McCafferty.


DISCOVERY; PRIVILEGE

7/9/15
Rockwood Select Asset Fund XI, (6)-1, LLC v. Devine, Millimet & Branch, PA, et al.
Case No. 14-cv-303-JL, Opinion No. 2015 DNH 135*

The plaintiff in this fraud in the inducement action moved to compel the defendants, a law firm and one of its partners, to produce for in camera inspection documents withheld on the basis of the attorney-client privilege and the work product doctrine that related to two prior litigations, the allegedly fraudulently induced loan, and a lease agreement. These documents, plaintiff contended, were subject to the crime-fraud exception as communications intended by defendants’ client to facilitate or conceal fraudulent activity that the client was engaged in or planning at the time of the communications. Acknowledging that in camera review requires a lesser evidentiary showing than is necessary to demonstrate the crime-fraud exception itself, the court concluded that the plaintiff adduced sufficient evidence for a reasonable person to believe that three of the four categories of withheld documents may reveal evidence that the crime-fraud exception applied to documents within those categories and accordingly granted plaintiff’s motion as to those categories. 28 pages. Judge Joseph N. Laplante.


FEDERAL RULE OF CIVIL PROCEDURE 56(d); FOURTH AMENDMENT

7/27/15
Willard Drew v. N.H. Drug Task Force, et al.
Case No. 14-cv-462-JD, Opinion No. 2015 DNH 147

The plaintiff brought federal and state claims against the New Hampshire Drug Task Force, the Task Force Commander, an officer with the Task Force, the town of Gilford, and Gilford town officials. The Task Force officer moved for summary judgment on the claim brought against him under 42 U.S.C. § 1983 alleging a Fourth Amendment violation. In response, Drew sought discovery pursuant to Rule 56(d) and argued that the officer violated the Fourth Amendment but did not provide evidence in support of his objection. The court concluded that Drew had not shown that he was entitled to discovery under Rule 56(d) and had failed to counter the officer’s affidavit provided in support of summary judgment. Summary judgment was granted in favor of the officer. 8 pages. Judge Joseph A. DiClerico, Jr.


EXCULPATORY EVIDENCE

7/16/15
Adriana and Charlie Serna v. Lafayette Nordic Village, Inc., et al.
Case No. 14-cv-049-JD, Opinion No. 2015 DNH 138

After renting skates as a facility operated by the defendants, the plaintiff was injured while walking from a skating pond back to the warming gazebo to change out of her skates. The skate rental agreement included a release of liability. The defendants moved for summary judgment, arguing that the release barred their liability for all or part of the claims in the case. The court concluded that the release did not violate public policy and was effective but applied only to skating, not to walking from the pond to the gazebo. For that reason, the release did not bar the plaintiff’s claims for negligence in constructing and maintaining the path. Summary judgment was denied. 11 pages. Judge Joseph A. DiClerico, Jr.


PERSONAL JURISDICTION, VENUE, TRANSFER

7/20/15
Campbell v. CGM, LLC
Case No. 15-cv-88-JD, Opinion No. 2015 DNH 143

The plaintiff, a New Hampshire resident, was formerly employed in New Hampshire by the defendant, a Georgia limited liability company. After his employment was terminated, the plaintiff brought suit, alleging that the defendant had breached his employment agreement and had withheld wages. The defendant moved to dismiss for lack of personal jurisdiction and improper venue. In the alternative, the defendant sought transfer of the case to the United States District Court for the Northern District of Georgia, where it is based. The court denied the motion, finding that the defendant’s contacts with New Hampshire were adequate to exercise personal jurisdiction. Based on this finding, the court found that venue was proper. The court also denied the defendant’s alternative request to transfer the case, finding that the relevant private and public interest factors weighed in favor of the case remaining in the District of New Hampshire. 32 pages. Judge Joseph A. DiClerico, Jr.


SECURITIES

7/2/15
Securities and Exchange Commission v. Allen R. Smith
Case No. 14-cv-192-PB, Opinion No. 2015 DNH 134

The Securities and Exchange Commission (the “SEC”) brought a civil enforcement action against Allen R. Smith, a Florida attorney, for his role in an advance fee investment fraud scheme that defrauded more than 30 investors out of over $10.8 million. The SEC charged Smith with violations of Rule 10b-5 and Section 17(a), as well as aiding and abetting the fraud and selling unregistered securities. The SEC then moved for summary judgment against Smith, claiming that Smith acted with at least extreme recklessness by making various positive certifications about the fraud’s principals, establishing scienter for its claims. In opposing summary judgment, Smith offered only conclusory and general denials of direct knowledge about the fraud. This Court determined both that Smith had not sufficiently met his burden at summary judgment and that, in light of the ensuing summary judgment record, no reasonable finder of fact could avoid the conclusion that Smith acted with extreme recklessness, and therefore with scienter. Thus, this Court granted the SEC’s motion and entered summary judgment against Smith on all of the SEC’s claims. 30 pages. Judge Paul J. Barbadoro.


SOCIAL SECURITY

7/2/15
Beth Grenier v. Carolyn Colvin, Acting Commissioner, Social Security Administration
Case No. 14-cv-153-PB, Opinion No. 2015 DNH 133

The claimant appealed the Social Security Administration’s denial of her application for disability benefits, arguing that the administrative law judge (the “ALJ”) below had failed to consider a favorable medical opinion in the record. The Commissioner argued, however, that a different medical source in the record had considered the omitted opinion, relieving the ALJ from having to do so himself. This Court ruled for the claimant. Recognizing that an ALJ must ordinarily consider all non-repetitive evidence in the record that supports a claimant’s application, this Court first concluded that the ALJ made legal error by failing to do so. Furthermore, this Court rejected the Commissioner’s argument after determining that the separate medical source on which the Commissioner relied had not sufficiently addressed the omitted opinion. Thus, this Court remanded the claim to the Social Security Administration. 12 pages. Judge Paul J. Barbadoro.


7/10/15
Joanne Michelle Beaune v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration
Case No. 14-cv-174-PB, Opinion No. 2015 DNH 136

Claimant sought judicial review of a ruling by the Social Security Administration denying her application for Disability Insurance Benefits based on her depression and posttraumatic stress disorder. The ALJ found that claimant was not disabled because she had sufficient residual functional capacity (“RFC”) to perform past relevant work. In seeking reversal, claimant argued that the ALJ erred (1) in determining her residual functional capacity; (2) in assessing her credibility; and (3) in adequately developing the record. The court disagreed, concluding that the ALJ’s decision was supported by substantial evidence. The court denied claimant’s motion to reverse and granted the Commissioner’s motion to affirm. 28 pages. Judge Paul J. Barbadoro.


7/17/15
Brown v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration
Case No. 14-cv-256-JL, Opinion No. 2015 DNH 141

On appeal from the Social Security Administration’s denial of the claimant’s application for disability insurance benefits, the court affirmed the decision of the Administrative Law Judge (“ALJ”). The ALJ’s assessment of the claimant’s physical RFC was supported by substantial evidence in the record despite the ALJ’s primary reliance on the opinion of a non-examining expert who had not reviewed the full record, the court held, because the ALJ permissibly found that (1) the unreviewed evidence was not inconsistent with that opinion and (2) the treating physician’s opinion was inconsistent with the record as a whole. The court also held that the ALJ did not err in assessing the credibility of the claimant’s complaints of pain and fatigue nor in weighing the opinion evidence when assessing the claimant’s mental RFC. 23 pages. Judge Joseph N. Laplante.


7/17/15
Childers v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration
Case No. 14-cv-270-JL, Opinion No. 2015 DNH 142

Claimant sought Social Security disability benefits based on fibromyalgia, lumbosacral spondylosis, L4-L5 facet arthropathy, migraines, asthma, allergic rhinitis, depression, anxiety and borderline personality disorder. An ALJ found that claimant was not disabled within the meaning of the Social Security Act because she has sufficient residual functional capacity (“RFC”) to work at jobs that exist in significant numbers in the national economy. Claimant asserted three arguments in support of reversal: 1) that the RFC finding was flawed because the ALJ relied on his own lay knowledge and because the ALJ did not explain his reliance on a state agency medical consultant; 2) that the ALJ did not give enough weight to evidence provided by a treating medical source; and 3) that the ALJ’s negative assessment of her credibility did not address all required factors. The court affirmed the ALJ’s ruling, finding the record evidence sufficient to support the findings. 10 pages. Judge Joseph N. Laplante.

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