Full Opinion (html_with_citations)

ORDER

After disposition of this appeal by summary order dated February 15, 2008, an active judge of the Court requested a poll on whether to rehear the case in banc. A poll on whether to rehear the case in banc was conducted among the active judges of the Court. After the poll was concluded, on June 9, 2008, the original three-judge panel withdrew the summary order and filed a per curiam opinion; no subsequent in banc poll has been requested. Because a majority of the court’s active judges voted to deny rehearing in banc, rehearing in banc is hereby DENIED.

Judges Calabresi, Straub, Pooler, Sack, Sotomayor, Katzmann, and B.D. Parker concur in the denial of rehearing in banc. Chief Judge Jacobs and Judges Cabranes, Raggi, Wesley, Hall and Livingston dissent from the denial of rehearing in banc.

With this order, Judge Calabresi is filing a concurring opinion; Judge Katzmann is filing a concurring opinion, in which Judges Calabresi, Pooler, Sack, Sotomayor and B.D. Parker join; Judge B.D. Parker is filing a concurring opinion, in which Judges Calabresi, Pooler, Sack and Soto-mayor join; Chief Judge Jacobs is filing a dissenting opinion; and Judge Cabranes is filing a dissenting opinion, in which Chief Judge Jacobs and Judges Raggi, Wesley, Hall and Livingston join.