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POWER CASES SENT BACK TO STATE COURT The Ninth Circuit U.S. Court of Appeals decided Wednesday in favor of plaintiffs trying to recover money in connection with the California electricity crisis, but their victory could be short-lived. A unanimous panel led by Chief Judge Mary Schroeder approved a lower court decision to remand a plaintiff suit from federal to state court. That’s good for the plaintiffs — led by Lieff Cabraser Heimann & Bernstein partner Barry Himmelstein — who have tried to stay out of federal court. But Nora Cregan, a Bingham McCutchen partner who argued on behalf of power companies, said plaintiffs shouldn’t celebrate yet. She pointed to a series of other recent Ninth Circuit rulings that she believes will be difficult for the plaintiffs to overcome once the case goes back to state court. Those other cases raised claims, similar to Himmelstein’s, that power companies manipulated California’s utilities market to the detriment of ratepayers. But the Ninth Circuit has tossed several of the plaintiff suits in recent months because of the filed-rate doctrine and federal pre-emption. Ninth Circuit judges decided that, because the power companies’ rates were approved by federal authorities and the companies were regulated by other federal laws, they are protected from most plaintiff suits. Dozens of plaintiffs, including the state of California, have sued in connection with the state power crisis of 2000-01. Wednesday’s People of the State of California v. NRG Energy, 04 C.D.O.S. 10724, included several consolidated matters. Only 12 of the decision’s 42 pages contained legal discussion; the rest listed the numerous case captions. — Jeff Chorney INMATE’S SUIT ADVANCES OVER POLITICAL LITERATURE NEW YORK — The seizure of a prison inmate’s writings about an African liberation group can be challenged by the prisoner as a violation of his First Amendment rights, a federal appeals court has ruled. Reversing a lower court, the Second Circuit U.S. Court of Appeals said the confiscation of prisoner Shabaka Shakur’s New Afrikan political literature can be challenged because the seizure, and subsequent disciplinary proceedings against him, may be unrelated to “legitimate penological interests.” On at least three occasions beginning in 1999 at Great Meadows Correctional Facility in Comstock, N.Y., and ending in 2002 at Attica Correctional Facility, Shakur had literature of the New Afrikan movement confiscated from his cell because corrections officers deemed the writings unauthorized gang material. Each time, he was charged with violating Department of Correctional Services Institutional Rule of Conduct 105.12, which states that inmates shall not possess or use unauthorized “organizational insignia or materials.” An unauthorized group under the rule is “any gang or any organization which has not been approved by the deputy commissioner for program services.” Second Circuit Judge Richard Wesley wrote in Shakur v. Selsky, 03-0050, that “an across-the-board exclusion of materials of ‘unauthorized organizations’ may not be rationally related to any governmental objective.” — New York Law Journal

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