Coalition of Concerned Citizens to Make ART Smart v Federal Transit Administration of the U.S. Department of Transportation

Coalition appealed the denial of its motion for preliminary injunction barring construction of a rapid transit bus lanes and related improvements. The panel affirmed. I upheld the decision to strike coalition’s experts declarations as coalition failed to address let alone rebut the district court’s rationale and affirmed the exclusion of an email from a city transit official as it was irrelevant to the preliminary injunction motion. It held that Coalition failed to demonstrate a likelihood of success on its National Environmental Policy Act claim as it failed to prove Administration erred in relying on the city’s report instead of doing an independent investigation and a dispute about the economic effects on business on the construction route are excluded from the impacts federal regulations make part of the assessment of impact. It held Coalition failed to demonstrate a likelihood of success in its national Historic Preservation Act claim because the appropriate historical preservation body declared no significant impact on historical properties would occur and the review encompassed both direct and indirect potential harms and made changes in three instances where the prosed bus stop shelters clashed with the character of the neighborhood, the traffic effects Coalition argued for the first time on appeal are both waived and erroneous as the diverted traffic would stay on the construction zone just at different times, the conclusion that Route 66 in Albuquerque did meet the criteria for protected status was supported by expert testimony and the record supported the conclusion that the city officials consulted with the public through outreach and meetings. It affirmed the finding that there was no irreparable harm here as Coalition waived any argument about the ability of the dedicate bus lanes to be quickly turned into general lanes and the economic harms identified by Coalition were insufficient under circuit precedent to constitute irreparable harm. It finally rejected coalition’s argument that the city entered contracts while enjoined noting that the city waited until the panel rejected Coalition’s emergency motion before contracting for destructive work.

Avenue Capital Management II, L.P. v Schanden

Avenue appealed the dismissal of its securities fraud suit. The panel affirmed. It held that Avenue’s interests in Quiznos were not an investment contract as Avenue had controlling interest in the Quiznos entities, could appoint and remove 8 of 9 managers, could amend the operating agreement at will and could even dissolve the entity plus Avenue were sophisticated investors who had unlimited access to the entity’s financial records. It held that Avenue’s arguments that its interests were stock or instruments commonly known as securities were forfeited as they were not raised below and the arguments raised issue of first impression about how to characterize things labeled stock which do not have all the attributes of stock and how to characterize interests in limited liability companies for securities fraud purposes and thus the panel declined to reach them.