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Case Summaries

Contracts

[09/02] Travelers Prop. Cas. Ins. Co. of Am. v. Nat'l. Union Ins. Co.
In an action by one insurer against another seeking $10 million in subrogation proceeds, summary judgment for defendants is affirmed in part where plaintiff waived certain rights by refusing repeated invitations to participate in subrogation discussions. However, the judgment is reversed in part where, as the excess insurer, plaintiff was entitled to a priority interest in the subrogation proceeds representing insured losses.

[09/02] Bodum USA, Inc. v. La Cafetiere, Inc.
In a suit for common law trade dress of a French-press coffee maker known as the Chambord, district court's judgment in favor of the defendant is affirmed as, Article 4 of the parties' contract is clear and precise as it allows defendant to sell the coffee maker design anywhere except France - provided that it does not use the Chambord or Melior names and does not use plaintiff's supply channels for four years.

[09/01] US ex rel. SNAPP v. Ford Motor Co.
District court's denial of plaintiff's motion to file a second amended complaint concluding that the proposed amended complaint, which included a list of contracts that the government allegedly entered into as a result of fraudulent representations on the part of Ford, did not allege with sufficient particularity the existence of a "claim" as defined by the False Claims Act (FCA), is affirmed as, because no holding of Bledsoe II affected the circuit's law on the questions at issue before the district court, the district court did not abuse its discretion in holding that its original rationale for not permitting plaintiff to file its second amended complaint pursuant to Rule 59(e) still obtained and that permitting such a filing was not otherwise "required in order to prevent an injustice."

[09/01] Smith v. Selma Cmty. Hosp.
In plaintiff's successful suit against a hospital to have his hospital privileges reinstated, trial court's denial of his motion for attorney fees is reversed and remanded where: 1) when the conditions contained in section 809.9 are shown, the prevailing party is entitled to attorney fees; 2) the statutory phrase "frivolous, unreasonable, without foundation, or in bad faith," set forth separate grounds for an award of attorney fees; 3) the terms "frivolous," "unreasonable" and "without foundation" are objective standards that might overlap; 4) the term "bad faith" is a subjective standard concerned with a defendant's motives for defending or litigating a lawsuit; and 5) because a defendant's subjective state of mind is usually proven by circumstantial evidence, a defendant's prelitigaton conduct and postlitigation conduct are relevant evidence from which inferences can be drawn regarding its motives in defending or litigating a lawsuit.

[09/01] Hinerfeld-Ward, Inc. v. Lipian
In a general contractor's suit against homeowners for breach of oral contract, quantum meruit, wrongful withholding of progress payments, and related cause of action, the judgment of the trial court is affirmed as, the oral contract was enforceable and the contractor is entitled to attorney fees for the homeowners' delay in making progress payments.

[08/31] Hayes Lemmerz Int'l, Inc. v. ACE Am. Ins. Co.
In an employer's suit against its insurer for refusing to tender defense in an underlying suit under its workers' compensation and employer liability policy, judgment of the district court in favor of the insurer is affirmed as, because defendant was, by virtue of Indiana law, a joint employer, insurer was contractually obligated to reimburse the reasonable expense of defendant's getting itself dismissed from the tort suit. However, because the defendant is not claiming that insurer refused to pay that amount, but rather, it is complaining that the insurer breached its duty to defend by failing to advise defendant that it's law firm was not defending the suit properly, the insurer had no duty to provide its insured's lawyers with legal advice.

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Family Law

[08/31] In re A.M.
An order declaring a father's minor children dependents of the juvenile court under Welfare and Institutions Code section 300(f) is affirmed where: 1) substantial evidence supports the court's section 300(f) jurisdictional finding that the father caused the death of a minor child through neglect; and 2) after considering all of the evidence and having the opportunity to observe the demeanor of witnesses, the juvenile court was in the best position to make the credibility findings concerning the father's statements.

[08/30] In re R.R.
In dependency proceedings, juvenile court's order declaring petitioner-father's daughter a person described by Welfare and Institutions Code section 300(b) based on the father's past and current drug use, is affirmed where: 1) the juvenile court did not err in denying father's motion to quash subpoena of his hospitalization; 2) any error in not hearing the motion to quash was harmless because as a matter of substantive law the motion would have been denied as father's hospital records were admissible; 3) father's claim that his right to privacy was violated by dissemination of his medical records is rejected; 4) substantial evidence supported the finding that the daughter was a person described by section 300; and 5) juvenile court did not abuse its discretion by ordering monitored visits.

[08/24] Karpenko v. Leendertz
In a child custody dispute, a grant of a mother's petition for the child's return under the Hague Convention of the Civil Aspects of International Child Abduction is affirmed and the minor child's immediate return to her mother in the Netherlands is ordered where: 1) the district court's findings of fact were not clearly erroneous; and 2) the application of the unclean hands doctrine would undermine the Hague Convention's goal of protecting the well-being of the child, of restoring the status quo before the child's abduction, and of ensuring that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.

[08/17] US v. Newman
Defendant's sentence for violating the International Parental Kidnapping Crime Act is reversed where the district court clearly erred in finding that the offense was "otherwise extensive in scope, planning, or preparation" and thus enhancing the sentence.

[08/13] CFTC v. Walsh
In an action by the CFTC and SEC alleging securities fraud, the Second Circuit certified the following question to the New York Court of Appeals: 1) does "marital property" within the meaning of New York Domestic Relations Law section 236 include the proceeds of fraud?; and 2) does a spouse pay "fair consideration" according to the terms of New York Debtor and Creditor Law section 272 when she relinquishes in good faith a claim to the proceeds of fraud?

[08/11] Ziino v. Baker
In an action seeking to levy against assets held in trust for a bankrupt party in an action based on a prior bankruptcy court order, summary judgment for defendant is affirmed where: 1) the bankruptcy court's order contained no clear designation of plaintiff's entitlement, especially in view of his significant recovery from the bankruptcy estate after the order issued; and 2) plaintiff's privately negotiated agreement with defendant did not qualify as an enforceable judgment for child support.

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Labor & Employment Law

[09/02] Weber v.Universities Research Ass'n, Inc.
In plaintiff's suit against her former employer for sex discrimination and retaliation in violation of Title VII, district court's grant of summary judgment in favor of the defendant is affirmed where: 1) plaintiff has waived her discrimination and retaliation arguments under the direct method of proof; and 2) plaintiff has failed to establish a prima facie case of sex discrimination, because even if she does not have to show that she was meeting defendant's legitimate business expectations, defendant is still entitled to summary judgment as she has failed to show that there were similarly situated men who were treated more favorably than she was.

[09/02] Branham v. Gannett Satellite Info. Network, Inc.
In plaintiff's suit under the Family Medical Leave Act (FMLA) against her former employer for being terminated from her job as a receptionist, district court's grant of summary judgment in favor of the employer is reversed and remanded where: 1) the district court erred when it granted summary judgment to defendant based on the submission of negative medical certification indicating that plaintiff could return to work; 2) plaintiff has produced sufficient evidence to create a genuine issue of material fact about her entitlement to FMLA leave, and defendant was not permitted to deny her leave based on the certification requirement when it never properly requested certification or informed her of the consequences of failing to provide the same, as required by Department of Labor regulations.

[09/01] Polycarpe v. E&S Landscaping Serv., Inc.
In consolidated Fair Labor Standards Act (FLSA) actions claiming that during plaintiffs' employment they worked more than forty hours per week and defendant employers failed to pay them either a federally mandated minimum wage, federally mandated overtime pay, or both, summary judgment for defendants is reversed where: 1) if a district court, ruling for a defendant, applied the "coming to rest" doctrine -- for instance, by looking at where defendant bought an item instead of where an item was produced, the court must vacate the judgment for the defendant if there was a question about where the "goods" or "materials" were produced or where they moved; and 2) for the purposes of the FLSA's handling clause, an item will count as "materials" if it accords with the definition of "materials" -- tools or other articles necessary for doing or making something -- in the context of its use and if the employer has employees "handling, selling, or otherwise working on" the item for the employer's commercial (not just any) purposes.

[09/01] Sprinkles v. Associated Indem. Corp.
In plaintiffs' bad faith action against Fireman's Fund Insurance Company, arising from an underlying suit against defendant and his employer for causing the death of plaintiffs' father in an automobile accident, trial court's judgment sustaining the insurer's demurrer is affirmed as, under the complaint and matters judicially noticed, the defendant-employee was an insured, rendering the automobile exclusion in the GCL policy applicable, and Fireman's Fund had no duty to defend the employer.

[09/01] Morse v. Merit Sys. Prot. Bd.
In plaintiff's action claiming that the Transportation Security Administration violated his veterans' preference rights when it declined to waive its maximum entry age requirement in connection with his application for employment as a Federal Air Marshal, the Merit Systems Protection Board's dismissal for lack of jurisdiction is affirmed as the TSA is exempt from section 3330(a) of Title 5, which provides Board appeal rights for preference eligible veterans.

[09/01] Smith v. Selma Cmty. Hosp.
In plaintiff's successful suit against a hospital to have his hospital privileges reinstated, trial court's denial of his motion for attorney fees is reversed and remanded where: 1) when the conditions contained in section 809.9 are shown, the prevailing party is entitled to attorney fees; 2) the statutory phrase "frivolous, unreasonable, without foundation, or in bad faith," set forth separate grounds for an award of attorney fees; 3) the terms "frivolous," "unreasonable" and "without foundation" are objective standards that might overlap; 4) the term "bad faith" is a subjective standard concerned with a defendant's motives for defending or litigating a lawsuit; and 5) because a defendant's subjective state of mind is usually proven by circumstantial evidence, a defendant's prelitigaton conduct and postlitigation conduct are relevant evidence from which inferences can be drawn regarding its motives in defending or litigating a lawsuit.

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Tax Law

[09/02] Bale Chevrolet Co. v. US
In a petition for review of intentional disregard penalties issued against petitioner for failing to file required Forms 8300 information returns with the IRS, the petition is denied where the government's positions were substantially justified.

[09/01] Hongsermeier v. Comm'r of Internal Rev.
The tax court's determination of petitioners' federal income tax deficiencies and liability for underpayment of interest is affirmed where: 1) the tax court's determination of the percentage deduction in the taxpayers' deficiencies, plus other benefits, accorded with the court's mandate in Dixon and was not an abuse of discretion; 2) the IRS Commissioner's position did not constitute fraud on the court or bad faith; and 3) the Tax Court did not abuse its discretion in relying on the materials available to determine a settlement fraction.

[08/30] US v. Blanchard
Conviction of defendant for failure to account for and pay over-withholding and FICA taxes and making and causing the making of a false claim for a tax refund is affirmed where: 1) offenses under section 7202 are covered by section 6531(4)'s six-year limitations period; 2) district court did not err in admitting evidence regarding discretionary expenditures; 3) while a defendant's inability to pay taxes when due bears on the willfulness of his act, it is not an element of the offense under 26 U.S.C. section 7202; 4) district court did not err in refusing to give defendant's proposed jury instructions; 5) sufficient evidence supported defendant's convictions under section 287; and 6) district court's restitution order is vacated and remanded.

[08/30] US v. Kloehn
Defendant's conviction and sentence for four counts of causing tax evasion are reversed where the district court abused its discretion and prejudiced defendant's ability to present his defense when it refused to continue the trial for two days to allow him to see his dying son.

[08/27] US v. Pfaff
In a tax evasion prosecution, the fine imposed on one defendant is vacated where the district court plainly erred in imposing a fine, pursuant to 18 U.S.C. section 3571(d), based on the court's finding that defendant caused a certain pecuniary loss, when that fine exceeded the maximum fine that would have been permitted absent the finding.

[08/27] Russell v. Comm'r of Internal Rev.
In taxpayers' appeal from the tax court’s decision that several loans did not constitute "indebtedness of the S corporation to the shareholder" such that taxpayers could claim losses incurred by the Missouri River Royalty Corporation (MMRC), the order is affirmed where the court's review of the record revealed no error in the tax court's rulings.

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Commercial Law

[09/01] Hollander v. Copacabana Nightclub
In a 42 U.S.C. section 1983 action brought against several New York City nightclubs for discriminating against men on “Ladies’ Nights," dismissal of the complaint is affirmed where the nightclubs were not state actors and thus were not subject to section 1983.

[08/31] Sinoying Logistics Pte Ltd. v. Yi Da Xin Trading Corp.
In an action seeking to attach defendant's property in New York as pre-judgment security for a pending arbitration in Hong Kong, dismissal of the action for lack of personal jurisdiction is affirmed where the district court did not err in declining to fashion an equitable remedy in circumstances where it was clear that the original attachment order could not be sustained in light of Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., 585 F.3d 58 (2d Cir. 2009).

[08/30] Princo Corp. v. Int'l Trade Comm'n
In plaintiff's patent infringement suit related to two types of digital storage devices, recordable discs (CD-Rs) and rewritable compact discs (CD-RWs), claiming that defendant was violating section 337(a)(1)(B) of the Tariff Act of 1930 by importing CD-Rs and CD-RWs that infringed its patents, the International Trade Commission's decision that the doctrine of patent misuse does not bar intervenor-U.S. Philips Corporation from enforcing its patent rights against defendant is affirmed as, even if Phillips and Sony engaged in an agreement not to license the patent at issue for non-Orange-Book purposes, that hypothesized agreement had no bearing on the physical or temporal scope of the patents in suit, nor did it have anti-competitive effects in the relevant market. Therefore, the asserted agreement between Phillips and Sony did not constitute misuse and cannot justify rendering all of Phillips' Orange Book patents unenforceable.

[08/30] Delta Air Lines, Inc. v. Chimet, S.P.A.
In Delta Airlines' suit for declaratory judgment seeking to limit its liability for losing approximately 100 kilograms of pure platinum shipped from Italy to Pennsylvania, district court's grant of defendant's motion to dismiss on forum non conveniens grounds is affirmed as the district court did not abuse its discretion by granting defendant's motion to dismiss as the private interest factors affecting the convenience of the litigants and the public interest factors affecting the convenience of the forum weighed in favor of litigating this dispute in Italy.

[08/26] Bankston v. Then

[08/25] DPC Indus., Inc. v. Am. Int'l Specialty Lines Ins. Co.
In an action seeking additional insurance coverage against a liability insurer, summary judgment for defendant is affirmed where: 1) nothing in the policy or an additional endorsement required that an insured property be actually owned or operated by the specific entity seeking coverage related to that facility; and 2) the record contained uncontradicted evidence that defendant provided indemnity coverage to plaintiff.

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Corporation & Enterprise Law

[08/30] Metavante Corp. v. Emigrant Savings Bank
In plaintiff's suit for breach of contract against defendant-bank for nonpayment of fees under the parties' Technology Outsourcing Agreement, judgment of the district court is affirmed where: 1) an expert's testimony was both relevant and reliable; 2) district court correctly determined that plaintiff did not breach the Agreement's performance warranty and its duty of good faith; 3) district court did not err in concluding that any reliance by defendant on the alleged misrepresentations of plaintiff was not reasonable; 3) district court committed no reversible error in determining that defendant's fraud claims were without merit; 4) district court determined correctly that defendant's success on the in-house issue does not render it a "prevailing party" within the meaning of the contract; and 5) the district court acted within the bounds of its discretion in determining that no additional guarantee of reasonableness was required.

[08/30] Flood v. ClearOne Communications, Inc.
In defendant's appeal from a preliminary injunction requiring defendant-corporation to advance attorney fees and costs to its former CEO, who was then facing a criminal trial, the order is vacated where the district court misread the parties' contract as a matter of law, disregarding express conditions to advancement specified in their agreement.

[08/30] HCM Healthcare, Inc. v. California Ins. Guarantee Ass'n
In a residential nursing facility's suit against California Insurance Guarantee Association (CIGA) for breach of contract and for violating the Insurance Code for refusing to provide plaintiffs with defense counsel and indemnification for underlying lawsuits for elder abuse, judgment in favor of defendant is affirmed where: 1) as a creature of statute, and not of contract, in some instances CIGA may not be responsible for an insured loss to the same extent as the insolvent insurer might be under the terms of its insurance contract; and 2) Pennsylvania's liquidation order imposed a June 30, 2005 deadline for filing against an insurer and because plaintiff did not meet the deadline, CIGA may not honor their claims.

[08/27] Paloian v. Lasalle Bank, N.A.
In a debtor-hospital's trustee's action to recover, as fraudulent conveyances, some loan payments made during the last years before hospital entered bankruptcy, judgment of the district court is vacated and remanded where: 1) LaSalle Bank is an "initial transferee" as an entity that receives funds for use in paying down a loan, or passing money to investors in a pool, is an "initial transferee" even though the recipient is obliged by contract to apply the funds according to a formula; 2) because the hospital was solvent in August 1997, the ensuing months' debt service cannot be recaptured as a fraudulent conveyance; and 3) on remand, the bankruptcy court is instructed to determine whether the transfer of the accounts receivable to MMA Funding was a true sale, such that MMA Funding served as the bankruptcy-proofing intermediary that the lenders desired.

[08/27] Russell v. Comm'r of Internal Rev.
In taxpayers' appeal from the tax court’s decision that several loans did not constitute "indebtedness of the S corporation to the shareholder" such that taxpayers could claim losses incurred by the Missouri River Royalty Corporation (MMRC), the order is affirmed where the court's review of the record revealed no error in the tax court's rulings.

[08/25] Waldner v. Carr
In a breach of contract action arising from failed negotiations for the acquisition and management of a financially struggling trucking company, summary judgment for defendants is affirmed where: 1) the alleged contract was merely an agreement to agree in the future and did not constitute a valid contract because the necessary Stock Purchase Agreement was never signed by the parties; and 2) because the memorandum explicitly stated that it was not the final contract, plaintiff could not have justifiably relied on its contents.

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Probate Trusts

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Property Law & Real Estate

[09/02] Bakalar v. Vavra
In an action seeking a declaration that plaintiff was the owner of a drawing by Egon Schiele, judgment for plaintiff is vacated where: 1) although it is unclear whether a cause of action comparable to the counterclaims of defendants could be successfully brought in Austria, allowing the claims to go forward under New York law was consistent with the principles underlying the decision of the Supreme Court of Austria; and 2) the district judge, by applying Swiss Law, erred in placing the burden of proof on defendants to show that the Nazis looted the drawing.

[09/01] Gallagher v. Magner
In consolidated actions by several owners and former owners of rental properties in St. Paul, Minnesota, challenging the City of St. Paul's enforcement of its housing code, summary judgment for defendants is affirmed in part where: 1) plaintiffs did not assert a claim under the McDonnell Douglas framework; 2) plaintiffs were not exercising a right under the Fair Housing Act by leasing to racial minorities; and 3) plaintiffs failed to reference a particular section of the St. Paul Code, let alone analyze why that section was vague. However, the order is reversed in part where the city's aggressive enforcement of the Housing Code resulted in a disproportionate adverse effect on racial minorities, particularly African-Americans.

[08/31] Wickens v. Shell Oil Co.
In plaintiffs' suit against Shell Oil under Indiana's Underground Storage Tank Act, claiming that Shell Oil was liable for the contamination on a plot of land where plaintiffs' shoe store was located, district court's grant of most of the plaintiffs' requests for corrective actions costs and attorney's fees is affirmed in part, reversed in part and remanded where: 1) without a better showing from the plaintiffs' attorney, the court will assume that the district court did its job properly when it decided to award $37,443.25 in litigation costs and disbursements; 2) there is no error in ordering Shell to pay for the corrective action costs incurred in May and June 2007; 3) district court did not abuse its discretion in denying the attorney's request for prejudgment interest; 4) district court did not abuse its discretion in denying Shell's Rule 60(b) motion; and 5) district court's judgment is reversed and remanded insofar as it miscalculated when it deducted the attorney's wife's fees from the attorneys' fees award.

[08/31] Pac. Palisades Bowl Mobile Estates LLC. v. City of Los Angeles
In a developer's suit against the City of Los Angeles for rejecting as incomplete an application for conversion of its mobilehome park because the application failed to include an application for clearance under the Mello Act and an application for a coastal development permit under the Coastal Act, trial court's entry of judgment directing issuance of a peremptory writ of mandamus commanding the city to deem plaintiff's application complete is reversed and vacated as, in light of the paramount concern for protecting coastal resources by regulating development as expressed in the Coastal Act, section 66427.5 does not preclude the city from imposing conditions and requirements mandated by the Mello Act and Coastal Act on a subdivider seeking to convert to resident ownership a mobilehome park located in the coastal zone.

[08/31] Colony Cove Properties, LLC. v. City of Carson
In a mobilehome park owner's challenge to a city ordinance specifying conditions permitting conversion of a mobilehome park from landlord ownership to resident ownership, trial court's conclusion that the city's responsibilities when faced with a mobilehome park conversion application were essentially ministerial, in issuing a writ directing the city to vacate the ordinance in its entirety and to vacate an ordinance imposing a moratorium on mobilehome park conversions while the city studied the issue is affirmed in part and reversed in part where: 1) trial court's conclusion that the city's role under section 66427.5 is purely ministerial is incorrect; 2) the ordinance at issue conflicted with section 66427.5 and is therefore invalid; and 3) the issue of the validity of the moratorium was moot at the time the writ was granted.

[08/31] Roberts v. Doyle
An order of the Second Circuit enjoining the Secretary of State from placing Amendment 3 on the November 2010 general election ballot is affirmed where: 1) the ballot title and summary are confusing to the average voter as the lack of an effective date renders it impossible for a voter to know which homeowners would qualify for the exemption; 2) the ballot title and summary fail to mention that a married person could fail to qualify for the exemption because his or her spouse previously owned a residence; and 3) a voter reading the title and summary could easily conclude that in order to be eligible for the additional homestead, a property owner would have to meet two conditions.

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Banking Law

[08/31] Force Framing, Inc. v. Chinatrust Bank
In plaintiff's suit against defendant-lender for a bonded stop notice, trial court's grant of defendant's motion for summary judgment because plaintiff served the statutorily required 20-day preliminary notice on another lender, and not defendant, is reversed where: 1) the trial court erred when it granted summary judgment because there is a triable issue of fact regarding the reasonableness of plaintiff's belief that another lender was the lender for the project; 2) defendant's argument that plaintiff could not have held a good faith belief that the other lender was the actual lender because plaintiff did not check the county records for the deed of trust that the lender recorded in 2005 is rejected; and 3) the court is not persuaded that, as a matter of law, pursuant to Kodiak, plaintiff had constructive notice that defendant was the actual lender and could not have held a good faith belief that the other lender was the actual lender.

[08/30] Metavante Corp. v. Emigrant Savings Bank
In plaintiff's suit for breach of contract against defendant-bank for nonpayment of fees under the parties' Technology Outsourcing Agreement, judgment of the district court is affirmed where: 1) an expert's testimony was both relevant and reliable; 2) district court correctly determined that plaintiff did not breach the Agreement's performance warranty and its duty of good faith; 3) district court did not err in concluding that any reliance by defendant on the alleged misrepresentations of plaintiff was not reasonable; 3) district court committed no reversible error in determining that defendant's fraud claims were without merit; 4) district court determined correctly that defendant's success on the in-house issue does not render it a "prevailing party" within the meaning of the contract; and 5) the district court acted within the bounds of its discretion in determining that no additional guarantee of reasonableness was required.

[08/30] Lechoslaw v. Bank of America
In plaintiff's suit against a bank for damages, claiming that a four-and-a-half month delay in receiving his $31,787.34 disrupted the construction of a motel and restaurant in Poland and caused him severe emotional distress, judgment of the district court is affirmed where: 1) plaintiff has failed to meet his burden of proving that the Bank in Poland met the requirements for the exercise of personal jurisdiction, and trial court did not abuse its discretion in finding that the Bank did not waive its defense of lack of personal jurisdiction; 2) there was no abuse of discretion on the facts in the court's exclusion of the statement as offered against Bank of America (BoA); 3) there was no evidence that BoA violated chapter 93A in any of its dealings with plaintiff, and the district court properly entered judgment in its favor; and 4) it was not an abuse of discretion for the courts not to reopen discovery according to the Hague Convention.

[08/27] Jefferson State Bank v. Lenk
In an estate administrator's suit against a bank to recover money as a result of unauthorized transactions, approximately two years before she was appointed as the administrator, judgment of the court of appeals' is reversed and judgment is rendered in favor of the bank as the statute of repose in section 4.406 of the Business and Commerce Code bars the administrator's claims because she failed to notify the bank of any unauthorized transactions within sixty days of being appointed estate administrator.

[08/27] Paloian v. Lasalle Bank, N.A.
In a debtor-hospital's trustee's action to recover, as fraudulent conveyances, some loan payments made during the last years before hospital entered bankruptcy, judgment of the district court is vacated and remanded where: 1) LaSalle Bank is an "initial transferee" as an entity that receives funds for use in paying down a loan, or passing money to investors in a pool, is an "initial transferee" even though the recipient is obliged by contract to apply the funds according to a formula; 2) because the hospital was solvent in August 1997, the ensuing months' debt service cannot be recaptured as a fraudulent conveyance; and 3) on remand, the bankruptcy court is instructed to determine whether the transfer of the accounts receivable to MMA Funding was a true sale, such that MMA Funding served as the bankruptcy-proofing intermediary that the lenders desired.

[08/26] Bank of Am., N.A. v. UMB Fin. Servs., Inc.
In an appeal from a series of orders in which the district court declined to compel plaintiff to submit to arbitration and declined to stay litigation pending the outcome of such arbitration, the orders are affirmed where: 1) plaintiff never signed an agreement containing an arbitration clause, and the document plaintiff did sign, the employment agreement, did not incorporate the arbitration clause of the FINRA contracts by reference or otherwise; and 2) the court need not reach the question of waiver since the district court properly determined there was no existing right to arbitration in this case.

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