Thursday, March 23, 2017

Seventh Circuit Clarifies Jurisdiction over Appeals from Orders in Ancillary Actions

By Katherine A. Grosh
Partner, Beermann Pritikin Mirabelli Swerdlove LLP


In P.H. Glatfelter Co. v. Windward Prospects Ltd., 847 F.3d 452 (7th Cir. 2017), the Seventh Circuit addressed three total appeals—two taken by P.H. Glatfelter Co. (Glatfelter) arising out of discovery-related orders and one cross-appeal taken by non-party subpoena respondent Windward Prospects, Ltd. (Windward), who sought costs and fees from Glatfelter under Federal Rule of Civil Procedure 37—all three of which the Seventh Circuit dismissed for lack of jurisdiction.

The underlying case involved an ongoing multi-party environmental cleanup being performed on the Lower Fox River in Wisconsin pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Under CERCLA, the parties responsible for creating the hazard and potentially responsible parties (PRPs) may be liable for the full costs of remediation. Glatfelter, 847 F.3d at 453-54.

Paper manufacturer Appvion, Inc. (Appvion), a PRP, sued other PRPs, including Glatfelter, in the Eastern District of Wisconsin, to recover the cleanup costs it incurred and to require other PRPs to pay for future remedial work. Id. at 454. Glatfelter sought discovery from Windward, an English entity conducting Appvion’s defense of the CERCLA claims and managing its cleanup operations, relating to Appvion's costs and possible offsets from insurance, settlements or indemnification payments in connection with the underlying cost recovery action. Id.

When Glatfelter could not obtain compliance with the subpoena it attempted to issue to Windward, it instituted an ancillary proceeding in the District of Massachusetts. Id. at 455. In addition to seeking an order compelling Windward to respond to the subpoena, Glatfelter sought to transfer the case to the Eastern District of Wisconsin, where the main cost recovery action was pending. Id.

Wednesday, March 22, 2017

Former ALA President and Illinois Solicitor General Michael A. Scodro and Former Illinois Solicitor General Carolyn Shapiro on Chicago Tonight to Discuss Judge Neil Gorsuch Confirmation Hearings

Former ALA President and Illinois Solicitor General Michael A. Scodro, now a partner at Mayer Brown, and Former Illinois Solicitor General Carolyn Shapiro, now a professor at Chicago-Kent College of Law, appeared on Chicago Tonight last night to discuss the United States Supreme Court confirmation hearings for Judge Neil Gorsuch, current judge for the United States Court of Appeals for the Tenth Circuit.


If the embedded video does not work, you may watch here.

DISCLAIMER: The Appellate Lawyers Association does not provide legal services or legal advice. Discussions of legal principles and authority, including, but not limited to, constitutional provisions, statutes, legislative enactments, court rules, case law, and common-law doctrines are for informational purposes only and do not constitute legal advice.

Tuesday, March 21, 2017

Former ALA President and Illinois Solicitor General Michael A. Scodro and Former Illinois Solicitor General Carolyn Shapiro To Appear on Chicago Tonight to Discuss Judge Neil Gorsuch Confirmation Hearings

Former ALA President and Illinois Solicitor General Michael A. Scodro, now a partner at Mayer Brown, and Former Illinois Solicitor General Carolyn Shapiro, now a professor at Chicago-Kent College of Law, are scheduled to appear on Chicago Tonight at 7 p.m. this evening to discuss the United States Supreme Court confirmation hearings for Judge Neil Gorsuch, current judge for the United States Court of Appeals for the Tenth Circuit.

DISCLAIMER: The Appellate Lawyers Association does not provide legal services or legal advice. Discussions of legal principles and authority, including, but not limited to, constitutional provisions, statutes, legislative enactments, court rules, case law, and common-law doctrines are for informational purposes only and do not constitute legal advice.

Sunday, March 19, 2017

Don't Miss Out on the ALA's March Event

By Josh Wolff
Research Attorney, Illinois Appellate Court, First District

On Wednesday, March 29, the ALA will host a roundtable luncheon featuring the justices of the Illinois Appellate Court’s First District. Attendees at the luncheon will have the opportunity to speak with the justices about appellate practice in an informal setting. Numbers permitting, at least one justice will be seated at each luncheon table. Justice Nathaniel R. Howse, Jr., will also discuss the First District’s e-filing initiative.

The event will take place at the Union League Club in Chicago, beginning at noon and ending at 1:30 p.m.

Attendees will receive one hour of MCLE credit.

For more information about any of the events and to register, please click here.

DISCLAIMER: The Appellate Lawyers Association does not provide legal services or legal advice. Discussions of legal principles and authority, including, but not limited to, constitutional provisions, statutes, legislative enactments, court rules, case law, and common-law doctrines are for informational purposes only and do not constitute legal advice.

Tuesday, March 7, 2017

ALA’s Cases Pending Previews Illinois Supreme Court’s March Term

Cases Pending, edited by Hon. Clare J. Quish (pictured left) and Gretchen Sperry, has been updated to discuss the Illinois Supreme Court’s March Term, which begins Monday, March 13, 2017, with oral arguments scheduled for March 14, 15, and 21, 2017.  A total of 6 cases will be heard – 4 civil and 2 criminal. The following cases are scheduled for argument this Term:

People v. David Holmes—No. 120407—March 14

People v. Blackie Veach—No. 120649—March 14

Bogenberger v. Pi Kappa Alpha, et al.—Nos. 120951, 120967, 120986 (cons.)—March 15

In re Estate of Thomas F. Shelton—Nos. 121199, 121241 (cons.)—March 21

Ferris, Thompson & Zweig v. Esposito—No. 121297—March 21

Better Government Association v. Illinois High School Association—No. 121124—March 21

Below is a summary of one of the civil and criminal cases to be argued this term. Summaries for this case and others pending with the Illinois Supreme Court can be found in our Cases Pending publication, accessible to ALA members on the ALA’s website.

INEFFECTIVE ASSISTANCE OF COUNSEL

No. 120649
People v. Veach
 


The issue in this case is whether the appellate court majority erred in holding that defendant’s ineffective assistance claim, raised on direct appeal, should wait until postconviction proceedings (the claim faulted trial counsel for stipulating to admission of recorded interviews with State’s witnesses without redacting inadmissible prior consistent statements and bad character evidence). The dissent would have held that the court could determine, based on the direct appeal record, that defendant received ineffective assistance of counsel.

In the PLA, defendant contended that the Fourth District holds that only in the “most extraordinary case” should an ineffective assistance claim be addressed on direct appeal.  Perhaps this broader procedural issue motivated the Court to take the case.  However, during briefing, both parties asserted that the issue could be addressed on direct appeal because the record on appeal confirms that the ineffective assistance claim is meritorious (defendant) or meritless (the State).  If the Court agrees, then the broader procedural issue would not be reached, and perhaps the Court will need to grant leave to appeal in one of the handful of PLAs that appear to be holding for resolution of this case.

Friday, March 3, 2017

Seventh Circuit Denies Appellant-Bankruptcy Trustee's Motion to Dismiss His Appeal Where He Failed to Obtain an Indicative Ruling From the District Court

By Andrew Kwalwaser
Law Clerk to Hon. Thomas E. Hoffman, Illinois Appellate Court, First District


In Cox v. Nostaw, Inc., No. 16-1389, the appellant, the bankruptcy trustee for an energy company, filed an appeal in the Seventh Circuit Court of Appeals. While the appeal was pending, however, the parties engaged in mediation and agreed to a settlement that was contingent on approval by the bankruptcy court. The parties filed a joint motion in the bankruptcy court, seeking an indicative ruling as to whether the court would approve the proposed settlement. The bankruptcy court issued an order stating that it would approve the settlement, subject to the objection of creditors, if the case was remanded for that purpose.

The trustee then moved the appellate court, pursuant to Federal Rule of Appellate Procedure 12.1, to dismiss his appeal and remand to the district court with instructions to remand to the bankruptcy court "for proceedings consistent with its indicative ruling."

The Seventh Circuit denied the trustee's motion without prejudice. The court noted Rule 12.1 provides that, if a district court indicates it would grant a motion that is barred by a pending appeal, the reviewing court "may remand for further proceedings but retains jurisdiction unless it expressly dismisses the appeal." Similarly, Circuit Rule 57 of the Seventh Circuit specifies that the court "will remand" if the district court intends to modify its judgment. These rules, the Seventh Circuit explained, "allow for coordination of proceedings between a district court and a court of appeals."

Because the litigation involved an appeal from the district court's decision to affirm a bankruptcy court order, remand to the bankruptcy court required coordination between three courts: the appellate court, the district court, and the bankruptcy court. In this case, however, there was no record that the parties "sought or obtained an indicative ruling from the district court." The Seventh Court held that "the proper procedure when asking this court to remand to the district court and then to the bankruptcy court is to obtain an indicative ruling from both courts that will need to act." Consequently, the Seventh Circuit denied the trustee's motion "without prejudice to renewal after obtaining an indicative ruling from the district court."

DISCLAIMER: The Appellate Lawyers Association does not provide legal services or legal advice. Discussions of legal principles and authority, including, but not limited to, constitutional provisions, statutes, legislative enactments, court rules, case law, and common-law doctrines are for informational purposes only and do not constitute legal advice.

Tuesday, February 28, 2017

ALA Honors Recently Installed Chief Justice of the Illinois Supreme Court Lloyd A. Karmeier

By Charlie Ingrassia
Associate, Adler Murphy & McQuillen LLP


On February 23, 2017, the ALA gathered at the Union League Club in Chicago for a special luncheon honoring Illinois Supreme Court Chief Justice Lloyd A. Karmeier, who assumed the position late last year.

ALA President Joanne R. Driscoll began the luncheon by welcoming ALA members and guests, which included Illinois Supreme Court Justice Anne M. Burke, as well as numerous Illinois Appellate Court justices and Circuit Court judges. Thereafter, Chief Justice Karmeier shared his vision for the state’s High Court. Drawing a large laugh from the audience, the Chief Justice remarked that his top priority is to create a “Hail to the Chief” twitter account. Turning to a more serious note, Chief Justice Karmeier noted that the Illinois Supreme Court changes the position of Chief Justice every three years, which it does with “little fanfare.” His role as the state’s top jurist is to oversee the operation of the Illinois courts, including budgetary matters.

Chief Justice Karmeier outlined a number of court initiatives. These included a commitment to promptly and fairly deciding cases; bolstering the Illinois Supreme Court’s commission on professionalism to improve ethical standards; continuing the Illinois Supreme Court’s Access to Justice program in order to help pro se litigants navigate the legal system; pursuing criminal justice reform, including alternatives to cash bond to address situations in which people are held because they cannot afford nominal bail; and the transition to a statewide e-filing system.

Finally, Chief Justice Karmeier discussed his desire to remedy negative campaigning that has become commonplace in judicial elections. He explained that such campaigning is not limited to a certain political ideology or interest group. Sharing his own experience, the Chief Justice recounted a $2.6 million dollar negative advertising campaign against him, most of which was spent during the last two weeks before election day. Chief Justice Karmeier stressed that the judiciary’s integrity has “taken a beating” from negative campaigns and expressed his belief that lawyers have a duty to help ensure that debates regarding judicial candidates are factually based.

The ALA thanks Chief Justice Karmeier for his insightful and engaging comments.

DISCLAIMER: The Appellate Lawyers Association does not provide legal services or legal advice. Discussions of legal principles and authority, including, but not limited to, constitutional provisions, statutes, legislative enactments, court rules, case law, and common-law doctrines are for informational purposes only and do not constitute legal advice.