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CIVIL PRACTICE No ‘opt in’ class under class certification rule A district court erred in certifying a so-called “opt in” class of heirs, beneficiaries and personal representatives of people who died in a ski train fire in Kaprun, Austria, the 2d U.S. Circuit Court of Appeals ruled on Dec. 20. Kern v. Siemens Corp., No. 04-0957-cv. The family members of the Americans who died in the Nov. 11, 2000, tunnel fire filed a class action against Siemens and others associated with the ski train and tunnel design, construction, operation, maintenance and promotion. The plaintiffs sought certification of a class comprising heirs and victim representatives who consented to inclusion, including families of foreign victims. A New York district court certified the class under Fed. R. Civ. P. 23(b)(3) to resolve “liability issues only,” calling this class an “opt in” class, rather than an “opt out” class as is referred to in Rule 23(b)(3), because class members had to take affirmative steps to be included in the class. The 2d Circuit reversed, finding “scant support for the proposition that a court could ever certify a class with an ‘opt in’ provision during the liability stage of the litigation.” Creation of an opt-in category would expand the narrow construction of Rule 23, and a district court does not have equitable powers to create an opt-in class out of what it perceives as necessity. Full text of the decision CIVIL RIGHTS ADA counts floor atop dance floor as mezzanine Because one level of a three-level Baltimore sushi bar and dance club had only a limited floor area that allowed patrons to view a dance floor below, that level was a “mezzanine” and not a “story,” meaning the building had less than three stories, and thus was exempt from the elevator requirement of the Americans With Disabilities Act (ADA), the 4th U.S. Circuit Court of Appeals held on Dec. 21. Laird v. Redwood Trust LLC, No. 03-2005. Redwood Trust LLC renovated a bank building and opened a three-level sushi bar and dance club. The second level of the business had an opening in the floor to allow patrons to overlook the dance floor. Caroline Laird, who suffers from spina bifida, sued Redwood under the ADA for failure to have an elevator in the building. Redwood countered that the second level with the opening was not a “story” under the ADA, and that the building, being less than three stories, was not required to have an elevator under the ADA. A Maryland federal district court granted summary judgment to Redwood. Affirming, the 4th Circuit held that, because the level with the opening was of a limited area smaller than the other levels, it was a “mezzanine” and not a “story,” making the building less than three stories and not subject to the ADA’s elevator requirement. Full text of the decision CONSTITUTIONAL LAW Pre-existing construction restriction isn’t a taking A municipality has not committed an unconstitutional taking when it conditions site-plan approval on a landowner’s acceptance of a development restriction consistent with the municipality’s pre-existing conservation policy, the New York Court of Appeals ruled on Dec. 21. Smith v. Town of Mendon, No. 177. Parts of a 9-acre tract of land owned by Paul and Janet Smith in Mendon, N.Y., were situated in four separate environmental protection overlay districts. Each district included use restrictions, so when the Smiths applied to construct a single-family home on the property, the planning board conditioned acceptance of the plan on the Smiths’ agreement to file a conservation restriction not to develop the land within the districts. The restrictions were to run with the land and put future owners on notice. The Smiths rejected the proposal and sued, claiming that the town had engaged in an unconstitutional taking of their property. The trial court rejected their claim, and the appellate division affirmed. The New York high court affirmed, holding that the town’s development restriction wasn’t an exaction requiring close scrutiny, but a “do no harm” restriction that didn’t involve any particular dedication of property. The restrictions would not significantly impede the Smiths’ use and enjoyment of their property, and the restrictions substantially advance a legitimate government interest in environmental preservation. Full text of the decision Federal terrorist labeling law is constitutional Assigning review of the determination of whether an organization is terrorist or not exclusively to a particular federal circuit does not violate the U.S. Constitution, the 9th U.S. Circuit Court of Appeals held on Dec. 20. United States v. Afshari, No. 02-50355. Hossein Afshari and others were indicted for knowingly and willingly conspiring to provide material support to the Mujahedin-e Khalq (MEK), a designated terrorist organization, in violation of 18 U.S.C. 2339B(a)(1). A California federal district court dismissed the indictments, holding, inter alia, that 8 U.S.C. 1189, the federal terrorist designation statute, was an unconstitutional restriction on judicial review because, in the statute, Congress gave exclusive jurisdiction for judicial review of terrorist organization determinations to the U.S. Circuit Court for the District of Columbia. Reversing, the 9th Circuit held that there was no constitutional violation in assigning review of the determination exclusively to a particular federal circuit. The court also held that there was no due process violation in not permitting Afshari to challenge the underlying determination that MEK was a terrorist organization. The court said, “No doubt Congress was well aware that some might be of the view that ‘one man’s terrorist is another man’s freedom fighter.’ Congress clearly chose to delegate policymaking authority to the President and Department of State with respect to designation of terrorist organizations, and to keep such policymaking authority out of the hands of United States Attorneys and juries. Under � 2239B, if defendants provide material support for an organization that has been designated a terrorist organization under � 1189, they commit the crime, and it does not matter whether the designation is correct or not.” Full text of the decision CRIMINAL PRACTICE Peremptory juror strike requires evidence of bias The state cannot use peremptory challenges to exclude from jury service people wearing clothing associated with a particular religion or indicating that they have performed missionary work, the New Jersey Supreme Court ruled on Dec. 22. State v. Fuller, No. a-76-02. During Lloyd Fuller’s criminal trial for first-degree robbery, the state used four of its five peremptory challenges to strike African-Americans. When challenged, the state said that a struck white juror had admitted to being a missionary, while one of the African-Americans wore black robes and a black skull cap, which the state took to mean that he was a Muslim. The state further explained its opinion that people who were religiously demonstrative tended to favor defendants. The trial court overruled Fuller’s challenge. The appellate court affirmed. The New Jersey Supreme Court reversed, finding that the missionary and the Muslim were members of a cognizable group, and that the state had failed in its duty to present evidence of situation-specific bias to justify its peremptory challenges. The state used the Muslim’s clothing and missionary status as a proxy for religion, therefore the state was required to give situation-specific examples to justify its peremptory challenges. Full text of the decision Receiving stolen goods is not interstate commerce Receipt of stolen federal property does not involve interstate commerce and thus can’t be prosecuted in any federal district through which the stolen property passed, the U.S. Circuit Court for the District of Columbia ruled on Dec. 21. United States v. Morgan, No. 03-3061. Jeffrey Morgan was convicted in a federal district court for receiving stolen federal property in violation of 18 U.S.C. 641. Prosecutors alleged that Morgan received a computer in Maryland after it had been stolen in Washington. Morgan appealed his conviction, arguing that federal D.C. court venue was improper because his only alleged activity involving the computer occurred in Maryland. The government countered that Morgan had “constructively received” the computer the moment it was stolen and that, because the offense involved transportation in interstate commerce, venue was proper in any federal district through which the computer moved before it was recovered by the authorities. Reversing Morgan’s conviction and calling the government’s transportation in interstate commerce argument “gobbledygook,” resulting in a “stunning expansion in permissible venue sites,” the D.C. Circuit said, “The Government’s position appears to be almost limitless in its expansion of the availability of venue under � 3237(a) � 2. Under its approach, venue in a prosecution for receiving stolen property would lie in any district through which the goods had passed. Thus, if the computer in this case had been driven from California, rather that from D.C., venue would apparently lie in each and every district through which the delivery truck drove.” Full text of the decision FAMILY LAW Doctor who reports child abuse enjoys immunity A physician who conducts a medical examination of a child thought to have been abused is immune from liability under the “mandated reporter” statute, the Connecticut Supreme Court ruled on Dec. 28. Manifold v. Ragaglia, No. SC 17150. A Connecticut social worker responded to an anonymous report that the children of Billy Jo Zaks and Michael Manifold were abused. The 2-year-old boy, Matthew, had several bruises and a rash. The social worker had an emergency room doctor, Robert Creutz, examine them. Despite the parents’ explanation that Matthew bruised easily and had been roughhousing with his sister and the family dog, Creutz said that he thought the bruises were consistent with abuse. Later medical tests revealed that Matthew had a blood disorder and that his bruises were consistent with the disease. The department of children and families withdrew a motion for temporary custody and a petition of neglect. Matthew’s parents sued multiple parties for intentional infliction of emotional distress. A trial court granted Creutz’s motion for summary judgment based on immunity under the “mandated reporter” statute for people who are required to report suspected child abuse. The Connecticut Supreme Court affirmed. Immunity under the statue is applicable to a physician who performs a medical exam of a child at the request of a child services department to determine whether reasonable cause exists to suspect child abuse. In this case, Creutz complied with the statute by reporting his suspicions of child abuse to the department�orally and in writing. Full text of the decision INSURANCE LAW Ad-injury insurance does not cover unsolicited fax Because a corporation does not have a right to privacy, an insurer does not have a duty under an “advertising injury” provision to defend a company that sent unsolicited faxes to a business, the 7th U.S. Circuit Court of Appeals ruled on Dec. 23, in an issue of first impression. American States Ins. Co. v. Capital Associates of Jackson County Inc., No. 04-1659. Capital Associates of Jackson County Inc. sent an unsolicited advertisement fax to JC Hauling Co., which, in turn, filed a class action against Capital for violations of the anti-junk fax statute. Capital asked its insurer, American States Ins. Co., to tender a defense under the advertising-injury provision. American States took up the defense under reservation of rights and filed for a declaratory judgment that it didn’t owe a duty to defend or indemnify. An Illinois district court ruled that the advertising-injury provision, which referred to injuries that “violate a person’s right of privacy,” required American States to defend Capital. The 7th Circuit reversed, finding that neither concept of privacy-that relating to secrecy, and that relating to seclusion-as used in the advertising injury provision applies to a corporation. An advertising injury clause of the kind used here does not cover the normal consequences of junk advertising faxes. Full text of the decision INTELLECTUAL PROPERTY Using colorful characters to sell beer is not novel The Coors Brewing Co.’s use of “the beerman” in a past advertising campaign did not misappropriate the idea for the character from a Denver-area beer vendor, the 10th U.S. Circuit Court of Appeals ruled on Dec. 22. Donchez v. Coors Brewing Co., No. 03-1462. Robert Donchez became a beer vendor for the Colorado Rockies baseball team in 1993, and developed the persona of a quick-witted character named “Bob the Beerman,” who interacted with the crowds. Donchez was granted service mark protection from the state for his character. Donchez approached Coors in 1996 about using his character for its advertisements, but the brewing company refused. Fifteen months later, Coors began a national television ad campaign that used many different actors and actresses portraying beer vendors who interacted with sporting event crowds. Donchez sued Coors for violations of the Lanham Act, arguing that Coors misappropriated his idea. The district court granted summary judgment for Coors. The 10th Circuit affirmed, ruling that the general idea of using a funny and colorful beer vending character to promote beer products is not novel. The characters used in the Coors campaign could not have been mistaken in physical appearance for “Bob the Beerman,” and Coors’ use of the term “beerman” was predominantly generic or descriptive. Full text of the decision JUDGES Personal use of judicial letterhead is unethical A judge may not use judicial letterhead for personal reasons, the Nevada Supreme Court found on Dec. 21 in an issue of first impression. In the Matter of Mosley, No. 39336. After being awarded custody of his son, Judge Donald M. Mosley, a district court judge, wrote two letters to the principals of his son’s schools asking them to prohibit the boy’s mother from visiting him at school. The letters were written on official judicial letterhead. The Nevada Commission on Judicial Discipline concluded that Mosley had violated Nevada Code of Judicial Conduct Canon 2B and ordered him to attend the first available general ethics course at the National Judicial College at his own expense. The Nevada Supreme Court affirmed. Canon 2B states that “[a] judge shall not lend the prestige of judicial office to advance the private interests of the judge or others.” The court determined that there was clear and convincing evidence that an objective reasonable person could conclude that the judge wrote letters on judicial stationery in an attempt to gain personal advantage. Full text of the decision TORTS Strict liability governs crew member assault The standard of care that governs crew member assaults on cruise lines, as common carriers, is strict liability, the 11th U.S. Circuit Court of Appeals held on Dec. 22. Doe v. Celebrity Cruises Inc., No. 03-15321. A young woman in her early 20s and five of her friends went on a cruise from New York to Bermuda. They were assigned to a table in the dining area and waited on nightly by ship waiter Baris Aydin. Aydin lived on the ship and subsisted directly on tips from passengers. At Aydin’s suggestion, the young woman and some of her friends went to the Oasis disco club in Hamilton, Bermuda, close to the where the ship was docked. Crew members often socialized with passengers at this club, and Aydin was already at the club when the group arrived. After a night of drinking and dancing, Aydin offered to escort the young woman back to the ship. Before returning to the ship, Aydin allegedly had sex with the young woman without her consent in a nearby park. A jury returned a verdict in the young woman’s favor on a sexual battery claim, and a Florida federal court entered a final judgment. The court then vacated its judgment and entered an amended final judgment in favor of the defendants. The 11th Circuit reversed, holding that while the sexual battery may have occurred while Aydin was off duty and on shore, the interaction between Aydin and the young woman was within the scope of the ongoing carrier-passenger relationship. The defendants expressly permitted socialization between crew members and passengers on shore, and such interaction enhanced the defendants’ tipping system. Full text of the decision WORKERS’ COMPENSATION Benefits law breaches equal protection clause The age limitation on permanent partial disability (PPD) benefits violates the equal protection of the law, the Montana Supreme Court ruled on Dec. 22. Reesor v. Montana State Fund, No. 03-639. Dale Reesor injured himself when he fell off the back of a truck in Cascade County, Mont., while working at Northwest Equipment, insured by the State Compensation Insurance Fund. When Reesor turned 65 on May 24, 1999, he began receiving Social Security retirement benefits. State Fund paid him temporary total disability benefits from Jan. 22, 2002, through Aug. 2, 2002, and permanent partial disability (PPD) benefits from June 10, 2002, through Sept. 15, 2002. Reesor received no other PPD benefits because Mont. Code Ann. � 39-71-710 mandates the termination of disability benefits if a claimant is receiving Social Security retirement benefits. The Montana Supreme Court reversed. The primary goal of workers’ compensation benefits is to establish wage replacement for injured workers. Because Social Security retirement benefits provide a recipient with supplemental income after the recipient contributes to the program throughout his or her working life and does not serve to replace wages, the court found that the statute is not rationally related to a legitimate government interest. Full text of the decision

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