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11TH CIRCUIT NIXES SEX TOYS, SEX RIGHTS ATLANTA — Americans do not have a fundamental right to sexual privacy, a 2-1 decision of the Eleventh Circuit U.S. Court of Appeals said on Wednesday. The split panel upheld an Alabama law that made the sale of sex toys a crime punishable by up to a year in prison. The decision extends an emerging division in the court over sexual rights, with Judges Stanley Birch Jr. and Rosemary Barkett leading opposing factions. Birch maintains that although the U.S. Supreme Court last year struck down a Texas law criminalizing gay sodomy, the justices have not decided fully that sexual privacy is a fundamental right protected by the Constitution. Barkett claims that the court is refusing to apply the sodomy decision to laws that violate people’s right “to be left alone in the privacy of their bedrooms.” Last week, the full Eleventh Circuit split 6-6 in denying reconsideration of a decision that upheld a Florida law prohibiting gays from adopting children. Birch wrote that while he thought the law was “misguided,” since there was no “constitutional liberty interest in private sexual intimacy,” the court must uphold Florida lawmakers’ right to exclude gays and lesbians from adopting. Barkett wrote that the Florida law violated equal protection guarantees in the 14th Amendment and “substantive due process” rights to sexual privacy established in last year’s sodomy case, Lawrence v. Texas, 123 S.Ct. 2472. Two judges agreed with Barkett that Florida was violating gays’ equal protection rights; three other judges said the case was important enough to deserve another look. This week Birch and Barkett faced off again, with Senior Judge James Hill providing Birch the swing vote in favor of Alabama’s right to prohibit the distribution of “any device designed or marketed as useful primarily for the stimulation of human genital organs.” — Fulton County Daily Report FOUR INSURERS AGREE TO $14M SETTLEMENT PHILADELPHIA — Four insurance companies have agreed to pay $14 million to settle a national class action that accused the insurers of reneging on a promise to pay partial refunds of premiums to a class of about 900 employers if their workers filed a low number of workers’ compensation claims. Lead plaintiffs’ attorneys Joseph Roda and Eric Keepers of Roda & Nast in Lancaster, Pa., said the case, Highland Tank and Manufacturing v. Bankers Standard Insurance, was only the second national class in an insurance bad faith case to be certified by a Pennsylvania trial judge. Roda said the case was about to go to trial before Lancaster County Judge Louis Farina when the proposed settlement was struck with all four defendants — Bankers Standard Insurance Co., Pacific Employers Insurance Co., ACE P&C and ACE American Insurance Co. All four of the defendant companies are wholly owned subsidiaries of ACE INA Holdings Inc., which is in turn owned by ACE Ltd., a Cayman Islands company based in Bermuda but traded on the New York Stock Exchange. In the suit, Highland represented a class of employers who originally purchased workers’ compensation policies in the late 1990s from CIGNA Corp. The suit said the policies were provided by two CIGNA subsidiaries and were sold as “guaranteed cost retention dividend” policies. According to the suit, the policies offered employers the prospect of partial premium refunds in payments called “dividends,” depending on an insured’s loss ratio during the policy year. — The Legal Intelligencer INTERSTATE FRAUD CONVICTION UPHELD NEW YORK — A conviction for inducing someone to travel between states for a fraudulent purpose can stand even if the traveler was only an agent of the injured party, not the one actually cheated, the Second Circuit U.S. Court of Appeals has ruled. The court upheld the conviction and prison sentence of a New York man for defrauding a Tennessee pastor and his church. It agreed with two other federal appeals courts in finding that “travel by an agent satisfies the interstate travel requirement” of 18 U.S.C. 2314. U.S. v. Thomas, 02-1029. Wade Thomas was convicted by an Eastern District of New York jury of defrauding Pastor Dannie Holmes and his Greater Hope Baptist Church in Memphis, Tenn., in 1996. Judge Reena Raggi sentenced Thomas to 51 months in prison, fined him $75,000 and ordered him to pay $100,000 in restitution. Thomas had met Holmes through Robert Mukes, the president of a management company who helped the church with its finances. Writing for the Second Circuit, Eighth Circuit Judge John Gibson, sitting by designation, said the court agreed with the government that Mukes, as an agent, met the requirements of the statute. Judges Richard Cardamone and Robert Sack joined in the opinion. — New York Law Journal

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