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CIVIL PRACTICE Scarcity of lead plaintiffs not a reason to decertify Vacating an Alabama federal court order, the 11th U.S. Circuit Court of Appeals held on Dec. 23 that decertifying a class after the lead plaintiff declared bankruptcy-without giving any other class members the opportunity to intervene-was an abuse of discretion. Birmingham Steel Corp. v. Tennessee Valley Auth., No. 02-15379. The Birmingham-based district court had certified a class action involving 400 large-volume industrial consumers of electrical power, with Birmingham Steel as the class representative. The notice sent to class members contained a statement declaring that those in bankruptcy were not to be included in the class. Several months later, the defendant in the class action discovered that Birmingham Steel had filed for Chapter 11 bankruptcy and filed a motion to decertify the class. The district court granted the motion. The class counsel filed a motion to suspend decertification until notice could be given to class members to substitute a class representative, but the district court denied the motion, noting that class counsel had stated repeatedly that it was unlikely a new class representative could be found. The 11th Circuit vacated. Addressing the district court’s grounds for decertification, the circuit court said that class counsel’s pessimism about finding a new class representative was not a good reason not to allow time for such a search. Full text of the decision Jury must be quizzed on possible pro-police bias A New Jersey federal court committed reversible error when it refused to question prospective jurors about bias in favor of law enforcement officials in a police brutality suit, the 3d U.S. Circuit Court of Appeals held on Dec. 18 in a case of first impression. Butler v. City of Camden, No. 02-2903. After Leonard Butler led police officers on a high-speed chase around Camden, N.J., he claimed that he surrendered voluntarily and that police beat him while he was handcuffed. He sued in federal district court, claiming violations of the Fourth and 14th amendments and 42 U.S.C. 1983. During voir dire, Butler’s attorney asked the trial court to question prospective jurors on any bias they might have in favor of law enforcement. The trial court declined to do so. After a jury returned a defense verdict, Butler appealed, arguing that the court should have questioned prospective jurors about possible bias. Although recognizing a trial court’s broad discretion in questioning prospective jurors, the 3d Circuit reversed, holding that the court’s failure to ask about possible bias was reversible error. The court said, “we recognize that the district court possesses wide latitude over the determination of the particular questions to be asked, and the scope of the inquiry at voir dire. The law requires, however, that the district court make those ‘inquiries relevant to the discovery of actual bias’ and which, in the final analysis, satisfy ‘the essential demands of fairness.’ “ Full text of the decision Attorney can settle court case but can’t bind client Answering a certified question from the U.S. Circuit Court for the District of Columbia, the District of Columbia Court of Appeals held on Dec. 18 that, despite giving an attorney the authority to negotiate an in-court settlement, a client was not bound by the settlement absent actual authorization to settle. Makins v. District of Columbia, No. 02-SP-241. After the District of Columbia fired her from her job as a corrections employee, Brenda Makins filed suit in federal court, alleging sex discrimination and retaliatory firing in violation of Title VII of the Civil Rights Act of 1964. At a court-ordered settlement conference where Makins was not present, her attorney, John Harrison, agreed to a settlement with the district. Harrison alleged that Makins agreed to its terms by telephone. Makins, however, refused to sign the agreement, claiming that she agreed to a settlement only if it involved getting her job back. The district court held that even if Makins had not given actual authority to settle, the district had the right to enforce the settlement because Harrison had apparent authority to bind Makins. Makins appealed, and the D.C. Circuit certified the question of whether a client is bound if she authorizes her attorney to negotiate a settlement but has not given actual settlement authority. Answering that question in the negative, the D.C. Court of Appeals rejected the federal district court’s holding that apparent authority was enough to bind the client. Distinguishing the instant case-where the court ordered Harrison to a settlement conference-from out-of-court settlement conferences where a client sends her attorney to negotiate, the court said, “We are unwilling to extend the power of settlement by way of apparent authority to attorneys who attend settlement negotiations under order of the court when their client is not present to validate the agreement.” Full text of the decision CIVIL RIGHTS ‘Monica’ moniker lands poli-sci professor in suit A New York state university professor who nicknamed one of his students “Monica”-after Clinton paramour Monica Lewinsky-was a state actor and may have violated her constitutional rights, the 2d U.S. Circuit Court of Appeals said on Dec. 18. Hayut v. State Univ. of N.Y., No. 02-9014. During the fall 1998 semester, Alex Young, a political science professor at the State University of New York’s New Paltz campus, tagged Inbal Hayut with the “Monica” moniker because of her perceived resemblance to the former White House intern. In class the professor would ask Hayut how her weekend “with Bill” had been and twice said to her in class, “be quiet, Monica. I will give you a cigar later.” Believing that her complaints had gone unaddressed, Hayut filed suit under 42 U.S.C. 1983, the state Constitution and Title IX of the Educational Amendments of 1972, alleging harassment and discrimination. A New York federal court granted summary judgment to all of the defendants. The 2d Circuit reversed the summary judgment as to the � 1983 equal protection claim against Young, holding that a professor employed at a state university acts under color of state law. The circuit court found that Hayut had presented sufficient evidence for a reasonable jury to find that Young’s conduct had the severity and pervasiveness sufficient to create a “hostile environment” and that this damaged her. But the court found that the university and its administrators had handled the complaint appropriately. Full text of the decision CONSTITUTIONAL LAW U.S. should have been enjoined from seizing pot A district court erred in failing to grant a preliminary injunction enjoining the Bush administration from using the federal Controlled Substances Act to prosecute California medical marijuana users because they had demonstrated strong likelihood of success in their claim that the act was an unconstitutional exercise of Congress’ commerce clause authority, the 9th U.S. Circuit Court of Appeals held on Dec. 16. Raich v. Ashcroft, No. 03-15481. Angela Raich and Diane Monson used marijuana on the advice of physicians as treatment for serious medical conditions. Monson cultivated her own marijuana. Believing Monson’s activities to be legal under California’s Compassionate Use Act of 1996-the codification of the state’s Proposition 215, which permits medical use of marijuana-Butte County, Calif., sheriffs deputies had a three-hour standoff with agents from the federal Drug Enforcement Administration who were attempting to seize Monson’s marijuana. Monson and Raich sued, arguing that the seizure was an unconstitutional application of the commerce clause. When the district court declined to grant injunctive relief, the users appealed. Reversing, the 9th Circuit distinguished the instant case from marijuana trafficking cases. It held that the district court erred in failing to grant the injunction because the users had demonstrated a strong likelihood of success on their claim that the federal government’s attempt to control “the intrastate, noncommercial cultivation, possession and use of marijuana for personal medical purposes on the advice of a physician and in accordance with state law” was an unconstitutional extension of power under the commerce clause. Full text of the decision IMMIGRATION LAW Lawyer violates law forbidding form forgery Certificate applications and visa petitions are “documents prescribed by statute . . . for entry into the U.S.,” meaning that forging them is a felony, even though neither document standing alone would permit entry into the United States, the 4th U.S. Circuit Court of Appeals said on Dec. 22. U.S. v. Ryan-Webster, No. 02-4650. An attorney, Sylvia Ryan-Webster, systematically sought immigrant status for her clients by forging signatures on visa petitions and on applications to the Department of Labor for labor certifications. She was indicted on several felony counts, including conspiracy to defraud the U.S. government and violation of 18 U.S.C. 1546(a), which criminalizes the use of a visa “or other document prescribed by statute or regulation for entry into” the country, “knowing it to be forged.” Ryan-Webster was found guilty on all counts. The 4th Circuit affirmed the conviction. Ryan-Webster had contended that the applications and petitions are not prescribed by statute for entry into the United States. The 4th Circuit disagreed, finding that, although the forged documents are not the final immigration documents that permit entry, they are necessary for the attainment of the final documents. Full text of the decision LEGAL PROFESSION Legal malpractice suit runs on torts timetable Reinstating a legal malpractice suit, the 10th U.S. Circuit Court of Appeals held on Dec. 18 that under Utah law such a suit is a tort action with a limitations period that begins at entry of the last nonappealable underlying decision-here the state supreme court’s denial of relief. Boyd v. Jones, No. 01-4248. When attorney Samuel Boyd’s stock acquisition went awry, he filed suit against the stock issuer. During the suit, he hired attorney Jeffrey Jones and his firm, Durham, Jones & Pinegar of Salt Lake City, to represent him. On June 1, 1995, the Utah courts dismissed the suit for failure to prosecute. On June 9, 2000, Boyd filed a malpractice claim against Jones and his firm in federal court. The court dismissed Boyd’s suit, holding that it was barred by Utah’s four-year statute of limitations for tort actions, which starts to run at the “occurrence of the last event required to form the elements of the cause of action.” On appeal, the 10th Circuit rejected Boyd’s argument that some of his claims sounded in breach of contract rather than in tort, finding instead that the duties Jones allegedly breached were based on what is reasonable given the “general standards of conduct for a profession,” rather than based on the “contract” between the parties. But the circuit disagreed with the trial court as to when the statute began to run, holding that it started only upon entry of the last nonappealable decision in the underlying case in which the malpractice is alleged to be a factor because that is when the damages from Jones’ alleged malpractice became fixed. Full text of the decision TORTS Maintenance firm may be liable for dark streetlight A streetlight maintenance company owed a Florida teen the duty to use reasonable care to maintain the lighting along the path to his school bus stop, the Florida Supreme Court ruled on Dec. 18. Clay Electric Coop. Inc. v. Johnson, No. SC01-1955. Fourteen-year-old Dante Johnson was hit by a truck and killed as he walked to the bus stop in the early morning hours of Sept. 4, 1997. According to the court, the area was dark due to an inoperative streetlight. Both the teen’s grandmother and his estate sued the truck driver, the truck owner and the streetlight maintenance company. After the cases were consolidated, the trial court granted the maintenance company’s motion for summary judgment. An intermediate-level appellate court reversed. Affirming, the state Supreme Court explained that the light was located in a residential area on the way to a school bus stop where there were no sidewalks in the area. As a result, it was foreseeable that proper maintenance was necessary to protect students. Full text of the decision No government liability for slow EMT dispatch Citing no independent statutory basis for imposing liability, the California Supreme Court held on Dec. 18 that public entities employing emergency dispatchers are not directly or vicariously liable for injuries suffered in part as a result of a dispatcher’s failure or delay in responding to a 911 call. Eastburn v. Regional Fire Protection Auth., No. S107792. The parents of a 3-year-old Victorville, Calif., child called 911 after the girl sustained an electric shock while taking a bath. Emergency personnel did not arrive in time, and the child suffered permanent injuries. Her parents sued the public entities employing the emergency dispatchers for general, special and punitive damages. The trial court dismissed the suit, and the intermediate Court of Appeal affirmed. Affirming, the state Supreme Court noted that California Health and Safety Code � 1799.107 says that public entities are not liable for any action taken by emergency rescue personnel “acting within the scope of their employment to provide emergency services, unless the action taken was performed in bad faith or in a grossly negligent manner.” Because there was no bad faith or gross negligence shown in this case, the court concluded that immunity under the statute applied. Full text of the decision

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