Avern Levin Cohn

This case is an appeal from a bankruptcy court ruling in a Chapter 13 proceeding where the Coles sought a declaration that a debt owed by the Woods from the sale of a house was non-dischargeable under 11 U.S.C. § 523(a)(2)(A) due to actual fraud in the Seller’s Disclosure Statement regarding foundation issues. The bankruptcy court, after a two-day trial, found that the Coles failed to prove fraud by a preponderance of the evidence, crediting the Woods’ testimony that they were unaware of ongoing basement problems at the time of sale and determining there was no duty to disclose a prior related lawsuit. The district court affirmed, reviewing factual findings for clear error and evidentiary rulings for abuse of discretion, and concluded that the bankruptcy court’s decision was not clearly erroneous and that any waiver or plain error issues with excluded evidence did not affect the outcome.

propertyproceduretorts & liability

This case is an appeal from a bankruptcy court decision in a dispute between McTevia, the liquidating trustee in a Chapter 11 case, and USDR over whether a contract was formed for the purchase of proofs of claim against another debtor. The bankruptcy court denied USDR's motion to dismiss or for summary judgment on contract formation and subject matter jurisdiction grounds, and instead granted summary judgment sua sponte to McTevia. The district court reversed, holding that the bankruptcy court erred by granting summary judgment against USDR without providing notice or an opportunity to present evidence. The district court also concluded that the bankruptcy court had subject matter jurisdiction because the claim related to collection of assets traceable to the bankruptcy estate at confirmation. The case was remanded for further proceedings.

business & regulatoryprocedure

This case involved a Michigan-based company, Lifestyle Lift Holding Co., suing a Florida plastic surgeon for statements he posted on the RealSelf.com website criticizing the plaintiff's "Lifestyle Lift" cosmetic procedure as a marketing gimmick performed by inexperienced surgeons. The claims included false advertising under the Lanham Act, defamation, and tortious interference with business relations. The court granted the defendant's motion to dismiss for lack of personal jurisdiction under Rule 12(b)(2). The core reasoning was that the defendant lacked sufficient minimum contacts with Michigan, as his online postings on a national forum were not purposefully aimed at the state, and any injury would more likely be felt in Florida where the parties compete directly.

business & regulatoryproceduretorts & liability

This case involves a patent dispute under the Hatch-Waxman Act in which Novo Nordisk sued Caraco for infringement of U.S. Patent No. 6,677,358, claiming a method of treating non-insulin dependent diabetes mellitus by administering repaglinide in combination with metformin to patients poorly controlled on metformin alone. Caraco defended by asserting that claim 4 of the patent was invalid as anticipated or obvious and unenforceable due to inequitable conduct. Following a bench trial, the court found the patent not anticipated by the prior art but invalid for obviousness, as the combination was prima facie obvious to a person of ordinary skill and secondary considerations such as unexpected results and commercial success did not overcome that showing. The court further concluded the patent was unenforceable because of inequitable conduct, based on material misrepresentations and omissions during prosecution, including declarations about clinical studies and prior art references.

business & regulatoryhealthcare

This case involves a reverse racial discrimination claim under Michigan’s Elliott-Larsen Civil Rights Act and 42 U.S.C. § 1983, in which white police officers allege that Flint Mayor Donald Williamson selected officers for a new Citizens’ Service Bureau based on race. After the parties agreed to arbitration under the Federal Arbitration Act and stayed the federal actions, defendant Williamson moved to disqualify arbitrator Thomas Waun. The court granted the motion, finding that Waun breached the arbitration agreement’s disclosure requirements by filing and publicly commenting on a separate lawsuit naming Williamson as a defendant in alleged discriminatory sales practices, without disclosing the representation. The court held that this created an appearance of partiality under the agreement and that a limited pre-award exception to the FAA permitted disqualification to avoid proceeding under a cloud of bias.

civil rightsprocedure

This habeas case under 28 U.S.C. § 2254 concerns Erwin Harris, who was convicted in 1999 of two counts of armed robbery and two counts of felony firearm possession arising from a gas station robbery. After exhausting state remedies, Harris challenged his felony firearm convictions on due process grounds, arguing that the Michigan Supreme Court improperly revised its interpretation of the felony firearm statute for aiding and abetting and applied the new rule retroactively. The district court granted habeas relief on the due process claim, finding the state court's actions contrary to clearly established federal law under Bouie v. City of Columbia and related precedents. As a result, the court ordered the felony firearm convictions vacated while staying the order pending any appeal. The ruling was based on AEDPA standards requiring deference to state court decisions unless they unreasonably apply Supreme Court precedent.

criminal law

This habeas corpus case under 28 U.S.C. § 2254 concerned a state prisoner convicted after a bench trial of first-degree murder and felony firearm possession arising from the 1993 shooting of his girlfriend. At his retrial, the court precluded a diminished capacity defense based on the Michigan Supreme Court's intervening decision in People v. Carpenter abolishing that defense under state law, though the petitioner was permitted to introduce some evidence of his mental state. The petitioner claimed the retroactive application of this change violated his due process right to present a defense. The district court denied the petition, concluding that the state courts' rejection of the claim was neither contrary to nor an unreasonable application of clearly established federal law on the right to present a defense.

criminal lawprocedure

This criminal case involves defendant Conyers, who pled guilty in 2009 to conspiracy to commit bribery concerning programs receiving public funds and was sentenced in 2010 to 37 months in custody. At sentencing she moved to withdraw the plea, which the district court denied; she appealed that denial and sought release on bond pending appeal. The court denied the bond motion under 18 U.S.C. § 3143(b), finding that the appeal did not raise a substantial question of law or fact likely to result in reversal or a new trial. In reaching that conclusion the court applied the multi-factor test from United States v. Haygood for plea withdrawals under Fed. R. Crim. P. 11(d)(2)(B), noting the nine-month delay between the plea and the withdrawal motion, the absence of a valid excuse for the delay, and the circumstances surrounding the plea.

criminal lawprocedure

This case is an appeal from a bankruptcy court decision in a Chapter 7 adversary proceeding where the trustee sought to avoid and recover preferential transfers made by the debtor to judgment creditors (the Gennas) and their law firm under 11 U.S.C. §§ 547(b) and 550. The bankruptcy court held the transfers to the Gennas avoidable and entered judgment against them but ruled the law firm, as an immediate transferee, took the funds for value, in good faith, and without knowledge of voidability, granting the firm summary judgment on the recovery claim. The district court affirmed after de novo review of the legal issues and clear-error review of the facts, concluding the law firm qualified for the defense under § 550(b)(1) based on the timing and communications surrounding the transfers.

procedure

This criminal case involved defendant Dervin Mood, who pleaded guilty to one count of receiving child pornography under 18 U.S.C. § 2252A(a)(2)(A) after a search of his home computer revealed images of child pornography; related charges of production and possession were dismissed under a plea agreement. The court imposed a sentence of one day in custody followed by five years of supervised release, including one year of home confinement, which was well below the advisory guidelines range of 33-41 months calculated under the 2003 Sentencing Guidelines. The court applied an offense level of 20 after adjustments for the number of images, use of a computer, and acceptance of responsibility, and declined to consider additional "couch images" linked to dismissed charges because they were excluded from the plea agreement and would require a separate evidentiary hearing. In selecting the sentence, the court weighed the defendant's age of 72, lack of prior criminal history, educational and professional background, family circumstances, and the distinction between receipt/possession offenses and more serious production or distribution conduct, while emphasizing that the sentence still served the purposes of punishment under 18 U.S.C. § 3553(a).

criminal law

This criminal case involved defendants Nancy Razalan and Generosa Agustín, who pleaded guilty to making false statements to a federal health care program under 42 U.S.C. § 1320a-7b(a)(2)(ii) by paying kickbacks for patient referrals to Medicare. The parties disputed whether the court could order additional restitution beyond the amounts specified in the defendants' Rule 11 plea agreements, specifically the full Medicare reimbursements received ($1,988,771 for Razalan and $998,475 for Agustín) plus certain referral payments. The court held that it lacked authority to impose the extra restitution, limiting it to the agreed sums of $225,000 and $80,000. The reasoning was that restitution statutes and Sentencing Guidelines permit awards only for actual losses caused by the specific offense of conviction, no pecuniary harm to the Medicare Trust Fund was shown because all services were medically necessary and rendered, and the anti-kickback/self-referral provisions cited by the government (including 42 U.S.C. § 1395nn) do not authorize criminal restitution here.

criminal lawhealthcare

This case involves a patent infringement claim by Intellectual Science and Technology, Inc. against Sony Electronics, Inc., in which the court granted summary judgment of noninfringement to Sony, a decision affirmed by the Federal Circuit. Sony then sought attorney's fees under 35 U.S.C. § 285, 28 U.S.C. § 1927, and the court's inherent authority, arguing the case was exceptional or involved bad faith. The court denied the request, finding no evidence of unfairness, bad faith, or conduct warranting deviation from the American rule that each party bears its own attorney's fees. The court emphasized that sanctions require specific findings of misconduct by attorneys or parties, which were absent here.

business & regulatoryprocedure

This case concerned a Mexican restaurant's challenge under the Administrative Procedure Act to the denial of its Form I-140 immigrant petition for an alien worker to serve as a chef. The restaurant had obtained labor certification from the Department of Labor but the USCIS and AAO rejected the petition after finding that the business's tax returns and financial statements failed to establish its ability to pay the proffered wage of $25 per hour, as required by regulation. The court granted the government's motion for summary judgment and denied the plaintiffs' motion, holding that the agency's conclusions regarding net income, current assets, and the inapplicability of prior precedent were reasonable and supported by the record.

immigrationbusiness & regulatory

In United States v. Sills, the defendant was convicted after trial of conspiracy to distribute five kilograms or more of cocaine, and the government filed a 21 U.S.C. § 851 information seeking to enhance his sentence based on a prior Missouri drug conviction. Sills objected on multiple grounds, including that the original information listed the wrong case number, the government had not proved the conviction was a felony, and various constitutional and procedural defects. After a hearing, the court determined that the government failed to prove beyond a reasonable doubt that the prior conviction was for a felony drug offense, and therefore the government could not pursue the sentence enhancement under 21 U.S.C. § 841. The court rejected Sills' other challenges as moot or without merit under controlling Sixth Circuit precedent. The ruling turned on the government's evidentiary burden under § 851 and the distinction between clerical errors and substantive proof failures.

criminal law

This patent case concerns allegations by 3D Systems that Envisiontec's Prefactory and Vanquish 3D printing machines infringe four patents related to stereolithography processes for building three-dimensional objects from computer models. The court adopted the special master's report and recommendations after de novo review, granting defendants summary judgment of non-infringement on the '537 and '143 patents while denying plaintiff's cross-motion for a finding of infringement. It further held that genuine issues of material fact exist regarding infringement of the '981 and '934 patents, requiring trial. The decisions rested on prior claim constructions from the Markman order, comparisons of the accused devices' operations (such as voxelization versus slicing and blade contact with resin) to the patent claims, and the absence of undisputed evidence meeting all limitations for summary judgment on certain patents.

business & regulatoryprocedure

In this criminal case, the defendant moved to dismiss the indictment or alternatively stay proceedings and hold an evidentiary hearing, claiming that a jury pool containing only nine African-Americans out of 100 prospective jurors violated his Sixth Amendment right to a jury drawn from a fair cross-section of the community and the Jury Selection and Service Act's requirement for proportional county representation. The court denied the motion in full. It reasoned that the composition of the specific 100-person pool did not establish systematic exclusion of African-Americans and that the Eastern District of Michigan's juror selection plan, which draws from voter, driver, and ID lists to create master and qualified wheels while ensuring proportional county representation, had already been upheld as constitutional in United States v. Bates. The court further rejected reconsideration, clarifying that the defendant's challenge centered on the observed pool rather than a distinct attack on the master wheel process.

criminal lawcivil rights

This case involves a Michigan wood chip supplier, Woodland Harvesting, Inc., suing Georgia Pacific Corporation after GP closed its particle board plant in Gaylord, Michigan, in 2006 and terminated supply contracts. WHI alleged breach of a 2000 five-year contract and a 2005 three-year contract, plus fraud in the inducement, fraud, silent fraud, and innocent misrepresentation based on alleged oral promises of automatic renewal and non-enforcement of termination clauses. The court granted summary judgment to GP on the contract claims, finding them barred by the statute of frauds and the parol evidence rule because the written contracts controlled and oral modifications were unenforceable. The fraud claims were stayed pending WHI's filing of an amended complaint to meet federal pleading standards under Rules 8 and 9(b).

business & regulatoryprocedure

This case involved a First Amendment challenge by plaintiff Crystal Ludwig, an exotic dancer at a club in Van Buren Township, against two local ordinances that prohibit appearing in a state of nudity on licensed premises or in public places. Ludwig sued the township under 42 U.S.C. § 1983, seeking monetary, declaratory, and injunctive relief on the grounds that the ordinances were overbroad. The court granted the township's motion for summary judgment and dismissed the case. The core reasoning was that the claims were barred by res judicata because they were identical to those raised and resolved in prior litigation between the township and the club (The Garter Belt) or its owner and employees, including Bates v. Van Buren Township, and that Michigan preclusion principles did not violate due process.

free speechcivil rightsprocedure

This case is a copyright infringement action brought by academic publishers against Excel Research Group, LLC and its owner, alleging violations of the publishers' rights of reproduction and distribution under 17 U.S.C. § 106. Excel operated a service providing coursepacks—compilations of readings selected by University of Michigan professors—to students by accepting professor-provided masters, maintaining them, and allowing enrolled students to make copies on Excel's machines without paying copyright fees or obtaining permissions. The court granted the publishers' motion for partial summary judgment on liability regarding thirty-three works. The core reasoning was that Excel's commercial process, in which it prepared and controlled access to the masters while students merely operated the copiers, amounted to unauthorized reproduction and distribution rather than protected individual student copying.

business & regulatoryproperty

This patent case concerns Novo Nordisk's listing in the FDA Orange Book of a use code (U-968) for its '358 patent on repaglinide (Prandin), which Caraco challenged as overly broad in connection with its ANDA for a generic version. The court granted Caraco's motion for summary judgment on its patent misuse counterclaim, holding that Novo improperly filed the U-968 narrative and ordering Novo to request the FDA to delist it and reinstate the prior U-546 listing. The core reasoning was that claim 4 of the '358 patent covers only repaglinide-metformin combination therapy, yet U-968 inaccurately suggests coverage of monotherapy and other combinations, violating FDA regulations requiring accurate and detailed use code descriptions under 21 C.F.R. § 314.53; this change also blocked Caraco's section viii statement for non-infringing uses after the related '035 patent expired. The Hatch-Waxman Act's counterclaim provision authorizes correction of such Orange Book misinformation.

business & regulatoryhealthcare