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3rd Circ. Preview: Mob Appeals, Labor Fight, 'Cars For Kids'

By Jeannie O'Sullivan · July 2, 2021, 7:32 PM EDT

Appeals by mobsters doing time for extortion, a labor dispute at DuPont and a trademark fight between nonprofits over the phrase "cars for kids" are among the cases heating up the Third Circuit's argument schedule in July.

The appeals court's midsummer lineup will also task the judges with reviewing proposed class claims over purportedly combustible gas piping in condominiums, allegedly deceptive marketing of a building insulation product and a constitutional challenge to Pennsylvania's COVID-19 restrictions.

Here are some highlights from the Third Circuit's July calendar.

Scarfo, Associates Want to Wipe Out $12M Extortion Case

Lucchese crime family members Nicodemo "Nicky" Scarfo Jr. and Salvatore Pelullo want to overturn their convictions and 30-year prison sentences in a $12 million extortion takeover that forced a Texas mortgage lender into bankruptcy.

The son of the late Philadelphia crime boss Nicodemo D. "Little Nicky" Scarfo Sr., Scarfo alleges he was denied justice due to the mismanagement of the 2014 trial in New Jersey and to being tried alongside his counsel. Pelullo's appeal arguments include that the attorney representing him in the case failed to advise him that he was dealing with his own criminal charges, therefore creating a conflict.

Brothers William and John Maxwell are also appealing their convictions and prison sentences for their roles in the scheme.

For its part, the federal government points to "overwhelming evidence" of the crimes and says many of the defendants' claims are waived, procedurally forfeited or otherwise meritless.

The argument is scheduled for July 6.

The cases are U.S. v. Nicodemo Scarfo, case numbers 15-2811, 15-2826, 15-2844 and 15-2925.

DuPont Takes On NLRB Over Outsourcing

DuPont Specialty Products USA is fighting the National Labor Relations Board's determination that it violated the law by replacing its in-house emergency response team at a Virginia facility, where employees are in regular contact with hazardous materials, with subcontractors, without first bargaining with the union representing the displaced workers.

The chemical company argues that the move wasn't subject to bargaining because no union concession would have addressed the health and safety concerns driving the replacement of the emergency response team, which consisted of paid volunteers, with subcontracted full-time professionals.

The NLRB contends DuPont failed to show it had the right to subcontract work without bargaining.

The argument is scheduled for July 7.

The case is DuPont Specialty Products USA v. NLRB, case numbers 20-3179 and 20-3480.

Youth Charities Duel Over Trademarks

In a trademark battle between two children's charities that rely on car donations, Kars 4 Kids Inc. and America Can! Cars For Kids are each staking claim to the phrase "cars for kids."

Kars 4 Kids is fighting a New Jersey federal court's determination that America Can established exclusive rights over the phrase in Texas, while America Can is challenging the court's denial of enhanced damages and attorney fees.

Kars 4 Kids argues that the other youth programming organization failed to demonstrate the continuous use of the mark that's required in order to build trademark rights. America Can claims the court erred in denying its requested relief, given its finding of willful infringement.

The argument is scheduled for July 7.

The cases are Kars 4 Kids Inc v. America Can! Cars For Kids, case numbers 20-2813 and 20-2900.

Condo Developer Wants to Advance Pipe Claims

A condominium developer wants to undo a Pennsylvania federal court's refusal to certify a proposed class action alleging that a residential gas piping product made by Tru-Flex Metal Hose Corp. and others poses a fire hazard.

Adams Pointe 1 LP and related entities argue, among other things, that a magistrate judge erroneously found that they failed to satisfy the ascertainability prong of class certification, meaning the members of the class could not be determined. Tru-Flex retorts that Adams Pointe failed to show that end consumers other than the named plaintiffs could be identified.

The argument is scheduled for July 8.

The case is Adams Pointe I LP et al. v. Tru-Flex Metal Hose Corp. et al., case number 20-3528.

FTC Strives to Revive Insulation Marketing Suit

The Federal Trade Commission aims to revive its action accusing Innovative Designs Inc. of making false and deceptive claims about the capabilities of its housing insulation product Insultex.

The agency says a Pennsylvania federal court ignored Innovative Design's admission that it used a modified testing standard that contravenes the FTC's "R-value" rule for measuring insulation efficacy, and relied on inadmissible evidence. Innovative Designs counters that the agency failed to show that the lab test results on which the company based its marketing claims were false or scientifically inadequate.

The argument is scheduled for July 8.

The case is FTC v. Innovative Designs Inc., case number 20-3379.

Pa. Fights Constitutional Challenge to Virus Mandates

The state of Pennsylvania is appealing a federal court's ruling that struck down its orders imposing emergency business closures and crowd-size restrictions as part of its response to the COVID-19 pandemic.

Gov. Tom Wolf argues that the court disregarded the U.S. Supreme Court's decision in Jacobson v. Massachusetts , a 116-year-old case that created standards for evaluating states' actions to stave off the spread of disease.

Butler County, which mounted a constitutional challenge to the orders, countered that the district court relied on a "comprehensive factual record" in concluding that the mandates violate the First and 14th Amendments.

The argument is scheduled for July 22.

The case is County of Butler v. Governor of Pennsylvania et al., case number 20-2936.

--Additional reporting by Matthew Santoni. Editing by Jill Coffey and Breda Lund.

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