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Wednesday, November 18, 2009

Ind. Decisions - Two Indiana decisions today from the 7th Circuit - plus another 2nd amendment case

In Bandak v. Eli Lilly Retirement Plan (SD Ind., McKinney), a 9-page opinion. Judge Posner writes:

Bandak, a retired employee of Eli Lilly, sued the company’s retirement plan under ERISA and received a judgment for $100,222.86 in damages and an injunction against the plan’s offsetting any of his future benefits by amounts paid to him under a plan in which he was enrolled when he worked in the United Kingdom. The district court also awarded him attorneys’ fees and costs, amounting to $89,612, on the ground that Lilly’s position in the litigation had not been substantially justified. * * *

We know that the chairman of Lilly’s board of directors was concerned about the cost of its retirement plan. And the disingenuousness of Lilly’s arguments suggests that the conflict of interest was indeed gnawing at the administrator. * * *

So not only was the district court’s decision correct; Lilly’s rejection of Bandak’s claim was not substantially justified, and therefore the district judge committed no error in awarding Bandak his reasonable attorneys’ fees and costs. Sullivan v. William A. Randolph, Inc., 504 F.3d 665, 670-72 (7th Cir. 2007); see 29 U.S.C. § 1132(g). Bandak has asked for fees for defending the appeal, and he is entitled to them too. As we explained in Sullivan, “affirmance entitles an appellee who has properly been awarded an attorney’s fee in the district court to an attorney’s fee for successfully defending the district court’s judgment in the court of appeals. Otherwise the purpose of the initial award—to shift the cost of litigation to the losing party—would be imperfectly achieved.” Sullivan v. William A. Randolph, Inc., supra, 504 F.3d at 672 (citations omitted). Bandak is directed to submit within 10 days an itemized statement of the attorneys’ fees that he incurred in defending the appeal, and Lilly will have 10 days to respond.

In Boyer v. Crown Stock Distribution (ND Ind., CJ Miller), a 19-page opinion, Judge Posner writes:
These appeals arise from the Chapter 7 bankruptcy of Crown Unlimited Machine, Inc. The trustee in bankruptcy filed an adversary action charging the defendants—a defunct corporation and its shareholders, members of a family named Stroup—with having made a fraudulent conveyance in violation of Ind. Code § 32-18-2-14(2) (section 4(a)(2) of the Uniform Fraudulent Transfer Act), a statute enforceable in a bankruptcy proceeding. See 11 U.S.C. § 544(b). After an evidentiary hearing, the bankruptcy judge awarded the trustee $3,295,000 plus prejudgment interest. The district judge affirmed and the defendants have appealed. The trustee has cross-appealed, seeking an additional $590,328. * * *

The defendants make some other arguments, but they do not require discussion. The trustee is entitled to the judgment awarded by the bankruptcy judge, plus the $590,328 dividend. After the claims of all creditors have been satisfied and the costs of administering the bankruptcy paid, any money remaining in the hands of the trustee must be returned to the defendants. The judgment of the district court is therefore affirmed in part and reversed in part (the part relating to the dividend), and the case remanded for further proceedings consistent with this opinion.

In the 2nd amendment case, U.S. v. Skoien (WD Wis.), a 27-page opinion, Judge Sykes writes:
A grand jury indicted Steven Skoien for possessing a firearm after having been convicted of a misdemeanor crime of domestic violence in violation of 18 U.S.C. § 922(g)(9). Skoien moved to dismiss the indictment, arguing that applying the federal statute to him violated his Second Amendment right to keep and bear arms as explained in District of Columbia v. Heller, 128 S. Ct. 2783 (2008). The district court denied the motion. Skoien pleaded guilty but reserved his right to appeal the district court’s denial of his motion to dismiss the indictment. He now reiterates his Second Amendment challenge to § 922(g)(9).

The government has approached this case as though all it had to do to defend the constitutionality of § 922(g)(9) is invoke Heller’s language about certain “presumptively lawful” gun regulations—notably, felon-dispossession laws. Not so. Heller held that the Second Amendment secures an individual natural right to possess firearms for self-defense; the opinion’s reference to exceptions cannot be read to relieve the government of its burden of justifying laws that restrict Second Amendment rights. Although Heller did not settle on a standard of review, it plainly ruled out the deferential rationalbasis test; this leaves either strict scrutiny or some form of “intermediate” review. On the facts of this case, we hold that intermediate scrutiny applies. In its usual formulation, this standard of review requires the government to establish that the challenged statute serves an important governmental interest and the means it employs are substantially related to the achievement of that interest. * * *

To summarize, we conclude that intermediate scrutiny applies to Skoien’s Second Amendment challenge to this § 922(g)(9) prosecution. The government has the burden of establishing a reasonable fit between its important interest in reducing domestic gun violence and the means chosen to advance that interest—§ 922(g)(9)’s total disarmament of domestic-violence misdemeanants. Accordingly, we vacate Skoien’s conviction and remand for further proceedings consistent with this opinion. If the government successfully discharges its burden, the district court shall reinstate Skoien’s conviction.

Posted by Marcia Oddi on November 18, 2009 11:11 AM
Posted to Ind. (7th Cir.) Decisions