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CIVIL PROCEDURE Predominance class element is clarified Federal judges may certify a class on one issue only, even when the plaintiffs’ claims as a whole do not satisfy the predominance test for federal class certification, the 2d U.S. Circuit Court of Appeals ruled on Aug. 24, in a matter of first impression. In Re: Nassau County Strip Search Cases, nos. 05-4206, 05-4211 and 05-4242. A federal district judge in New York ruled in 1999 that the Nassau County jail’s policy requiring all new misdemeanor arrestees to be strip-searched was unconstitutional. Three groups of people who had been searched under the blanket policy filed a civil rights suit and sought class certification. After the county conceded liability, another federal judge rejected class certification on the ground that all that was left to litigate were the individual circumstances of each arrestee. The 2d Circuit reversed on an issue that has divided other circuit courts. The panel noted that the class certification guidelines in the federal rules are intended to promote “economies of time, effort, and expense . . . without sacrificing procedural fairness.” The court noted that the county has yet to disclose records of all the newly admitted misdemeanor detainees who were strip- searched under the blanket policy. “Absent class certification and its attendant class-wide notice procedures, most of these individuals-who potentially number in the thousands-likely will never know that defendants violated their clearly established constitutional rights, and this will never be able to vindicate those rights,” the court said.   Full text of the decision COMMUNICATIONS LAW No enhanced damages for cable services theft A federal statute that offers enhanced damages to a party wronged by the interception of radio communications does not apply to radio or satellite communications illegally intercepted during their re-transmission via cable, the 1st U.S. Circuit Court of Appeals held on Aug. 25. Charter Communications Entertainment v. Burdulis, No. 05-1653. Charter Communications raised two federal statutes against individuals it accused of using illegal signal descramblers to steal its services. 47 U.S.C. 553 specifically targets cable transmission theft; � 605 targets interception of radio signals and provides for enhanced damages, additional fines and attorney fees. The company argued that the latter should apply because it used radio signals to broadcast material for re-transmission via cable. A federal judge in Massachusetts rejected that view. Affirming, the 1st Circuit said that the statutes clearly differentiated between wire and radio transmissions, and that the plaintiff’s reading of � 605 would render � 553 superfluous. Language in � 605 suggesting otherwise was intended to let cable systems go after parties stealing their radio or satellite transmissions, but once the radio signal is inside the cable, � 553 applies. “[I]t is not that Congress is singling out cable (wire-based) operators ‘for substantially worse treatment’ vis-�-vis wireless video competitors,” the court said. “It is merely that Congress has made a decision to stiffen the applicable penalties for piracy of wireless services. We decline to disturb this legislative judgment.” CONSTITUTIONAL LAW ‘Message’ doesn’t make defiance of officer legal Defying a police officer’s lawful order is not the same as expressing a constitutionally protected opinion, even if the intention is to “send a message,” the Oregon Supreme Court ruled on Aug. 24. State v. Illig-Renn, No. S52633. When informed that the police intended to impound a truck in which she was a passenger, Rose Mary Illig-Renn reportedly climbed into the truck bed and refused orders to get out. Charged with interfering with a police officer, she challenged the proceedings on constitutional grounds. The case was extensively litigated, and ultimately an intermediate state appellate court struck down the statute at issue, citing the potential for infringement of protected speech and assembly. The court cited the state Supreme Court’s roughly contemporaneous ruling striking down a disorderly conduct law as broad enough to punish protected rights of speech and assembly. Reversing, the Oregon Supreme Court said that the lower court misread that and other precedents. The justices said that they have permitted facial challenges to laws “that more or less expressly identify protected speech as a statutory element of the offenses they define . . . or that otherwise proscribe constitutionally protected speech” on their face. However, simple refusal to obey an officer does not necessarily encompass speech or expression, the court said. “The fact that such acts may be intended to ‘send a message’ is irrelevant.” If a police order is unlawful, it must be challenged on that basis, the court said. COPYRIGHT Circuit unravels ‘hybrid’ jurisdictional knot A plaintiff’s request for a remedy in federal copyright law handed a federal judge jurisdiction to compel arbitration of a “hybrid” breach of contract claim partly implicating state law, the 10th U.S. Circuit Court of Appeals held on Aug. 23. 1mage Software Inc. v. Reynolds and Reynolds Co., No. 04-1533. When Reynolds and Reynolds gave 90 days’ notice that it would withdraw from its contract to market 1mage Software’s products to auto dealers, 1mage canceled the license immediately and then sued in U.S. district court in Colorado, raising federal copyright infringement and state misappropriations claims. The judge assumed jurisdiction and ordered the parties to follow a clause in their initial contract compelling arbitration in Ohio. The 10th Circuit affirmed, following the 2d Circuit’s approach to what has been called one of “the knottiest procedural problems in copyright jurisprudence.” Federal jurisdiction applies if the complaint seeks a remedy provided under the Copyright Act, or asserts a claim requiring interpretation of the act. Here, the plaintiff alleged copyright infringement and sought injunctive relief. Regarding arbitration, 10th Circuit precedent bars judges compelling proceedings outside their districts, but that was a question of venue that the parties waived by failing to raise it in district court. CRIMINAL PRACTICE Suspect operated car by inserting ignition key Inserting the key into a car’s ignition constituted a violation of a state law against operating a vehicle under the influence of alcohol or drugs, the Connecticut Supreme Court held on Aug. 22. Connecticut v. Haight, No. SC 17435. A police officer found Andrew Haight asleep behind the wheel of his legally parked Lexis with its headlights on but the engine off. The key was in the ignition. Haight failed a field sobriety test and was charged with operating a motor vehicle under the influence of intoxicating liquor. Haight argued that the police lacked reasonable grounds to believe that a crime had occurred. A trial judge denied his motion to dismiss, but an intermediate state appellate court ruled that because the arresting officer did not see the key in the “on” or “start” position, the state could not prove that Haight had been operating the vehicle. Reversing, the Connecticut Supreme Court noted that the law in question proscribed “operating” as opposed to “driving” a motor vehicle. Ample case law has established that the law applies whenever someone “intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of the vehicle,” the court said, and simply inserting the ignition key met that standard. Shackles hidden from jury didn’t taint trial There was no constitutional violation in forcing a criminal suspect to wear shackles during his trial because his garments hid the restraints from the jury’s view, the Maine Supreme Judicial Court held on Aug. 22. Maine v. Bennett, No. 2006 ME 103. Nicholas Bennett was charged with elevated aggravated assault, robbery and unauthorized use of a motor vehicle after allegedly stealing a man’s wallet and truck and stabbing him repeatedly. At trial, over defense objections, the judge ordered Bennett to wear leg restraints underneath his clothes. Bennett appealed his conviction, arguing that the restraints unfairly prejudiced the jury. Affirming, Maine’s highest court acknowledged that the U.S. Supreme Court in Deck v. Missouri, 544 U.S. 622 (2005), prohibited “the use of physical restraints visible to the jury” unless “justified by a state interest specific to a particular trial.” Here, however, there was no showing that the jurors ever were aware of the shackles. “Even assuming that Deck might apply in some circumstances when restraints are not visible, no prejudice from the use of such restraints is demonstrated in this record,” the court said. EMPLOYMENT LAW FMLA doesn’t cover performance bonuses Employers may trim pay bonuses for employees who took unpaid time off under the Family and Medical Leave Act (FMLA), as long as the bonuses are tied to productivity, the 3d U.S. Circuit Court of Appeals ruled on Aug. 24. Sommer v. The Vanguard Group, No. 05-4034. The Vanguard Group’s partnership plan pays workers a year-end bonus based on company earnings. Participants are eligible if they work a certain number of hours per year. While time taken off from work for vacation or sick days nonetheless counts toward that quota, time taken off under the FMLA, workers’ compensation or short- and long-term disability does not. The company awarded Robert Sommer a prorated amount on his year-end bonus because he took two months’ FMLA disability leave. Sommer sued and sought class certification, but a U.S. district judge in Pennsylvania granted summary judgment for Vanguard. On this matter of first impression, the 3d Circuit affirmed. If a bonus rewards employee production, then proration for FMLA absences is allowed, the court said; if it rewards the absence of an occurence, such as compliance with safety rules, it does not. Here, the company rewarded some “positive effort on the employee’s part,” so proration is allowed. Sommer was treated the same as employees taking similar forms of leave, which legitimately are treated differently than paid vacation or sick leave. ESTATES AND TRUSTS Presumption against caregivers covers friends Resolving a split between intermediate state courts of appeal, the California Supreme Court ruled on Aug. 21 that close friends who tended to a dependent elderly person were “care custodians” under a state law restricting the ability to inherit. Bernard v. Foley, No. S136070. James Foley and his girlfriend, Ann Erman, were longtime friends of Carmel L. Bosco and cared for her at their home during her terminal illness. Three days before Bosco died, she amended a trust to make Foley the trustee and Foley and Erman residual beneficiaries. Her surviving relatives claimed that Foley and Erman had exhibited undue influence over Bosco and that, as care custodians, they were presumed ineligible to be beneficiaries under the California Probate Code. A trial judge ruled that the law didn’t apply to them; an intermediate appeal court, splitting with some of its sibling courts, reversed. Affirming, the California Supreme Court noted that the statute listed an array of professional or occupational caregivers, including “[a]ny other . . . agency or person providing health services or social services to elders or dependent adults.” Nothing in the statute suggested that the Legislature intended other than the plain meaning of the word “person,” the court said. A dissent lamented that the ruling might discourage people from caring for the infirm, adding that that outcome would be “counterintuitive to our sense that the uncompensated efforts of such an individual, benefiting the dependent adult in question and society in general, should be recognized and encouraged.” FAMILY LAW Divorce case died along with contesting party Divorce proceedings cannot survive the death of one of the parties, notwithstanding a state procedural rule allowing other forms of litigation to proceed when one of the parties dies, the North Dakota Supreme Court ruled on Aug. 24. Jochim v. Jochim, No. 20060038. A family court judge entered an order for judgment in the divorce of Greg and Denise Jochim on Oct. 24, 2004, but the final decree and judgment wasn’t entered until Nov. 8. In the meantime, Greg Jochim was killed in a traffic accident. The judge granted Denise Jochim’s motion vacating the judgment. Greg Jochim’s estate appealed. The North Dakota Supreme Court affirmed. “Unlike other actions where an injury has already occurred and damages have been incurred, death of a party to a divorce effectively renders a subsequent divorce judgment meaningless because there is no marriage left to dissolve,” the court said. Grandparent visitation law is constitutional A Utah state law granting visitation rights to grandparents is constitutional and was applied in a constitutional manner to require a father to let his deceased ex-wife’s parents visit his child, the Utah Supreme Court held on Aug. 25. Uzelac v. Thurgood, No. 20040796. After Darryl and Shauna Thurgood divorced, their child was born and was cared for by her mother, who lived with her parents, Darlene and Robert Uzelac, for the next three years. After the mother’s death, the father gained custody. The grandmother invoked Utah’s grandparent visitation statute to seek access to her grandchild. A judge concluded that on evidence of their close bond with the child, the grandparents had rebutted the legal presumption that the parent gets to decide who has access to the child. The state Court of Appeals certified the case to the Utah Supreme Court, where the father argued that the law violated his constitutional right to manage the care, control and custody of his child. The Utah Supreme Court affirmed the lower court. The plurality ruling by the U.S. Supreme Court in Troxel v. Granville, 530 U.S. 57 (2000), affirmed parental rights against a Washington state law allowing “any person” to assert a child visitation claim, the Utah high court conceded. However, it continued, Troxel did not treat that right as absolute; rather, it “clearly contemplated that the presumption might be rebutted.” The narrower Utah law, which places the onus on grandparents to rebut the presumption, is compatible with Troxel, the court said. In this case, the court agreed that the presumption had been rebutted. INSURANCE LAW ‘Mad cow’ boycott caused ‘direct’ loss The U.S. boycott of Canadian beef inspired by fears of “mad cow disease” constituted a “direct physical loss to property” under a meat processing plant’s business interruption policy, a divided 8th U.S. Circuit Court of Appeals panel ruled on Aug. 22. Source Food Technology Inc. v. United States Fidelity and Guaranty Co., No. 06-1166. The import ban was imposed after the disease-which formally is called bovine spongiform encephalopathy-turned up in Canadian beef. The ban prevented Source Food Technology from receiving beef it had ordered from its sole supplier in Canada. That forced the company to shut down operations and consequently to lose a major contract. A state trial judge granted summary judgment to its insurer, United States Fidelity and Guaranty Co. (USFG). The dispute was removed to U.S. district court in Minnesota, where a federal judge agreed, citing a lack of proof of physical damage or contamination. Reversing, the 8th Circuit majority criticized the lower court rulings as “hypertechnical.” It said, “Source Food was denied the use of its product due to circumstances beyond its control, circumstances in which its beef was, in essence, deemed infected with Mad Cow disease. It has suffered a direct, physical loss of its beef. Source Food purchased an insurance policy from USFG to protect its business in such circumstances, and that policy should be given effect.” TORTS Hospital violated its duty to protect patient A state hospital had a duty to prevent a mental patient from harming herself by attempting to escape through an unsecured third-story window, the Mississippi Supreme Court ruled on Aug. 24. Mississippi Department of Mental Health v. Hall, No. 2004-CA-01522-SCT. Julia Renee Hall was a mental patient at East Mississippi State Hospital who was recruited by two fellow patients to attempt an escape through a third-story window. The window, which lacked a security screen, was located inside an unlocked third-floor conference room near a nurses’ station. She fell while attempting to climb down a rope made of knotted sheets, severely injuring herself. A state trial judge found that the hospital was 50% liable for Hall’s damages, and ordered it to pay her $250,000. The Mississippi Supreme Court affirmed, ruling that under state law the hospital was obliged to provide its patients with “proper care and treatment, best adapted, according to contemporary professional standards.” The strongly worded opinion cited expert testimony that escape attempts by psychiatric patients are reasonably foreseeable and that the hospital failed to monitor its patients adequately.

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