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IN THIS ISSUE: President’s Column Announcements Case Notes Clerk’s Corner Closing the Courthouse Door to Sovereigns? News from the Western Division A Discussion of the Supreme Court’s Recent FSIA Case, OBB Personenverkehr AG v. Sachs Government Relations Update Events Recent Amendments to the Federal Rules of Civil Procedure Discoverimg Justice Young Lawyers Division The First Circuit Rules on FAAAA Preemption of the Massachusetts Independent CLE Breakfast with Judge Bailey Contractor Law as Applied to Motor Carriers Breakfast with the Bench Series Tracy Roosevelt, Editor Newsletter WINTER 2016 President’s Column By Matthew Baltay The Federal Bar Association of annual Discovering Justice mock trials in December. Upcoming Massachusetts is as vibrant as ever. Our events include an April 6 seminar on Technology in the Courtroom partnership with the federal court remains and a program on the reentry courts. Also noteworthy is a March very strong as we continue to fulfill 24 event at which Judge Talwani, Judge Dein, and the FBA’s the Federal Bar Association mission of Matt Moschella and Steve Hansen will head up a training on the strengthening the federal legal system and reinvigorated pro se mediation program. In this program, the FBA serving the needs and interests of federal staffs mediations of federal court litigation matters involving a pro practitioners, the federal judiciary and the se litigant as referred by the court. public they serve. Lastly, we are very pleased to announce the honoree for this year’s Our service to the bar and partnering Annual Federal Judicial Reception, Judge F. Dennis Saylor, IV. The with the bench is exemplified by our reception will be on June 7 at the Boston Harbor Hotel. We look Breakfast with the Bench series. We hold a breakfast at the forward to seeing our friends and colleagues for an enjoyable evening. Moakley Courthouse monthly. These are open to the bar, involve Thus, I am pleased to report that the FBA of Massachusetts is thriving. presentations by current judges and allow for open dialogue between bench and bar. FBA Board Member Scott Lopez of Lawson & Weitzen heads up this series. We have been fortunate to have had breakfasts this year with the following members of the Massachusetts federal bench: Judge George A. O’Toole, Jr. (October 2015), Judge Frank J. Bailey (October 2015), Judge Indira Talwani (November 2015), Judge Leo T. Sorokin (December 2015) and Judge F. Dennis Saylor, IV (January 2016). The judges present on a variety SAVE THE DATE of topics. For example, Judge O’Toole started our series this year THE MASSACHUSETTS CHAPTER OF with comments on jury empanelment, and Judge Saylor presented THE FEDERAL BAR ASSOCIATION in January on “Trial Tips and Rarely Granted Motions.” Judge Jeffrey ANNUAL FEDERAL JUDICIAL RECEPTION R. Howard, Chief Circuit Judge for the First Circuit, will present on JUNE 7, 2016 April 27 on appellate law issues. 6:00 PM - 9:00 PM BOSTON HARBOR HOTEL Springfield has been similarly busy with a roster of excellent programs under the steady leadership of FBA Board members Nate WE WILL RECOGNIZE: Olin of Connor Morneau & Olin and David Lawless of Robinson THE HONORABLE F. DENNIS SAYLOR, IV FOR HIS SERVICE TO THE JUDICIARY, BAR, AND COMMUNITY Donovan. For example, Judge Ponsor presented on January 21 to the FBA on his thirty years on the federal bench, Judge Boroff presented in November on bankruptcy issues confronting non- EXECUTIVE OFFICERS: bankruptcy lawyers, and Judge Mastroianni presented on March 16 on issues in criminal law. President Treasurer Co-Vice-President for the Matthew C. Baltay Jonathan I. Handler First Circuit Matthew C. Moschella In other areas, the FBA continues its mission of education and President Elect National Delegate Oreste Ramos partnering with the court and community. Just to mention a few, Scott P. Lopez Nathan A. Olin Newsletter Editor on February 24, Judge Talwani and an all-star panel presented to a Vice President Immediate Past President Tracy Roosevelt packed audience on the recent amendments to the Federal Rules of Harvey Weiner Lisa M. Tittemore Civil Procedure. In November, the FBA hosted a job skills workshop Secretary Past President Full listing on page 13 at the Courthouse for probationers and the FBA participated in the Juliet A. Davison Michelle I. Schaffer FEDERAL BAR ASSOCIATION MASSACHUSETTS CHAPTER NEWSLETTER WINTER 2016 | 1 / Announcements / Clerk’s Corner Update from Robert Farrell, Clerk of Court, US District Court, District of Massachusetts Courtroom Evidence Presentation Systems Attorneys-General Court Orders - on the Clerk’s Office website. On April 6, 2016, Judges George A. O’Toole and F. Dennis Saylor Amendments to the Federal Rules of Practice and Procedure IV will host an overview of the courtroom evidence presentation 12/1/2015 systems currently in use at the Moakley Courthouse in Boston. This training is open to all practicing attorneys and any staff responsible Under the Rules Enabling Act, 28 USC §§ 2071-75, amendments to for the handling and presentation of evidence. The Judiciary the following rules take effect on December 1, 2015: Evidence Recording System used by the jury to review electronic • Bankruptcy Rule 1007 evidence during deliberations will also be demonstrated. Two • Civil Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, 55, and 84, and the concurrent sessions will be offered at 3:00 p.m. This will be followed Appendix of Forms Under 28 U.S.C. § 2074(a) and the Supreme by panels moderated by Judge Burrows on “Civil Practice - Recurring Court orders dated April 29, 2015, the amendments will govern issues unique to multidistrict litigation” and Judge Leo T. Sorokin on all proceedings commenced on or after December 1, 2015, and “Criminal Practice - Recurring issues unique to multi-defendant cases. all proceedings then pending insofar as just and practicable. Johnson v. United States (2015) Significant changes to the Federal Rules of Civil Procedure include, Samuel James Johnson, was a white supremacist with a substantial among others: 1. The time for service of process under Rule 4(m) criminal record who was closely surveilled by the Federal Bureau is shortened from 120 days to 90 days. 2. The time for holding the of Investigations due to his potential and actual engagement in initial case management conference under Rule 16(b) has been suspected domestic terror groups. Throughout his involvement shortened by 30 days, and new topics for the Rule 26(f) and Rule 16 he unknowingly offered information to undercover agents which conferences have been added. relayed his desire and plan to carry out domestic attacks. Mr. Johnson was known to possess illegal firearms and weapons. Upon Amendments to the Federal Rules of Practice and Procedure 3. The his arrest and Indictment he was charged with being a felon in scope of discovery in Rule 26(b)(1) has been amended, and the possession of a firearm and ammunition and fell under the Armed need for proportional discovery tailored to the reasonable needs Career Criminal Act (ACCA) residual clause which carried a 15 year of the case has been highlighted. 4. Rule 37(e) has been rewritten statutory minimum for having three violent felony convictions, to address the preservation and loss of electronically stored most notably possessing a sawed off shotgun. 18 USC § 924 (e) (2) information. 5. Rule 1 has been amended to state that parties as (b) defined “violent felony” as an act that threatens “use of physical well as courts have an obligation to secure the just, speedy, and force against the person of another,” “is burglary, arson, or extortion,” inexpensive determination of every action. “involves use of explosives”, or “otherwise involves conduct that Text of amended rules and supporting documentation: presents a serious potential risk of physical injury to another.” The http://www.uscourts.gov/rules-policies/current-rules-practice- latter being defined as the “residual clause”. procedure In short, after appealing his Judgment, the Eighth Circuit affirmed http://www.mad.uscourts.gov/attorneys/pdf/ the District Court’s sentence of 15 years. The Supreme Court granted RulesComparisonChart.pdf certiorari, argued the matter on November 5, 2014, and again on April 20, 2015 to address the question of whether or not the residual Amended bankruptcy forms: clause was unconstitutionally vague. http://www.uscourts.gov/forms/bankruptcy-forms The opinion of the Court, found the residual clause to be in violation Reappointment of Magistrate Judith Gail Dein of the Fifth Amendment with Justice Scalia’s opinion stating The court is accepting public comments on the reappointment of “a criminal law so vague that it fails to give ordinary people fair Magistrate Judith Gail Dein. The public notice is available through notice of the conduct it punishes.” Justices Kennedy and Thomas this link: http://www.mad.uscourts.gov/general/pdf/01082016 concurred, and in writing separate opinions disagreed that the Public Notice - MJ Dein Reappointment.pdf residual clause of the ACCA was unconstitutionally vague. Justice Alito dissented, finding that the circumstances surrounding Johnson’s arrest and ultimate Indictment could have met the narrow interpretation of the ACCA’s residual clause. Notably, Johnson was in Interested in contributing possession of his sawed-off shotgun while carrying out a drug deal in a public parking lot. to the Newsletter? The Judges of this court executed General Order 15-1 on October 6, 2015 providing a Standing Procedural Order for the appointment of Contact Tracy Roosevelt at counsel and motions for relief under Johnson v. United States 135 S.Ct 2551 (2015). The Court’s General Orders can be found under [email protected]. FEDERAL BAR ASSOCIATION MASSACHUSETTS CHAPTER NEWSLETTER WINTER 2016 | 2 / Announcements / News from the Western Division Government Relations Update By Nathan A. Olin – National Council Delegate, Massachusetts Chapter As the FBA National Council Delegate for the Massachusetts Chapter, I am pleased to summarize several pieces of interesting information recently coming out of Washington, D.C.

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