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The U.S. Supreme Court on June 4 rendered the following decisions: The justices ruled, 5-4, that a state judge had properly used his discretion to excuse a potential juror who expressed equivocal views about the death penalty. Uttecht v. Brown, No. 06-413. Cal Coburn Brown carjacked Holly Washa, 21, and drove her to a hotel near Seattle-Tacoma International Airport, where he left her to die. Brown turned himself in after he raped and tried to kill another woman in Palm Springs, Calif. He confessed to both crimes. At his trial in a Washington state court, prosecutors challenged a juror, Juror Z, because he indicated he would impose the death penalty only if the defendant were in the position to kill again. Defense lawyers did not object at trial. Jurors’ options were limited: they could sentence Brown to death or to life in prison with no parole. Brown was convicted and sentenced to death. State courts and a federal judge affirmed. The 9th U.S. Circuit Court of Appeals set aside the death sentence, holding that the juror should not have been excused because he said he would consider the death penalty in an appropriate case. The justices reversed. Writing on behalf of the court, Justice Anthony M. Kennedy said the 9th Circuit should have deferred to the trial court, which had acted well within its discretion in granting the prosecution motion to excuse Juror Z. The juror’s “answers . . . could have led the trial court to believe that he would be substantially impaired in his ability to impose the death penalty absent the possibility that Brown would be released and would reoffend. The trial court . . . is entitled to deference because it had an opportunity to observe Juror Z’s demeanor. The State’s challenge, Brown’s waiver of an objection, and the trial court’s excusal of Juror Z support the conclusion that the interested parties all felt that removal was appropriate.” Chief Justice John G. Roberts Jr. and justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. concurred. Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer dissented. CONSUMER PROTECTION The justices held unanimously that initial rates charged for new insurance policies may be adverse actions under Section 1681 of the Fair Credit Reporting Act, which requires businesses that use consumer credit reports to provide notice of any adverse action they take in setting terms as a result of unfavorable consumer credit information. Safeco Insurance Co. of America v. Burr, No. 06-84, and Geico General Insurance Co. v. Edo, No. 06-100. Safeco, which relies on credit reports to set initial insurance premiums, offered Charles Burr higher than the best rates possible without sending him an adverse action notice. Burr joined a proposed class action, alleging willful violation of Section 1681 of the Fair Credit Reporting Act (FCRA). An Oregon federal court granted Safeco summary judgment on the ground that offering a single, initial rate for insurance cannot be “adverse action.” The 9th Circuit reversed. Geico also uses an applicant’s credit score to select the appropriate subsidiary insurance company and the particular rate at which a policy may be issued. Geico sends an adverse-action notice only if a neutral credit score would have put the applicant in a lower priced tier or company. The applicant is not otherwise told whether he would have received better terms with a better credit score. Ajene Edo applied for auto insurance with Geico. After obtaining Edo’s credit score, Geico offered him a standard policy at rates higher than the most favorable, which he accepted. Because Edo’s company and tier placement would have been the same with a neutral score, Geico did not send Edo an adverse-action notice. Edo filed a proposed class action, alleging willful violation of Section 1681 and seeking statutory and punitive damages. An Oregon federal court granted summary judgment to Geico, finding no adverse action because the premium would have been the same had Edo’s credit history not been considered. The 9th Circuit reversed, ruling the “plain language” of the FCRA requires notice “whenever a consumer pays a higher rate because his credit rating is less than the top potential score.” The justices reversed and remanded, holding that an adverse initial pricing decision constitutes an “increase” within the meaning of the “adverse action” notice requirement. Writing on behalf of the court, Justice David H. Souter said that there was nothing in the statute to suggest that “remedies for consumers disadvantaged by unsound credit ratings should be denied to first-time victims . . . . [N]othing about insurance contracts suggests that Congress meant to differentiate applicants from existing customers when it set the notice requirement; the newly insured who gets charged more owing to an erroneous report is in the same boat with the renewal applicant.” Notice is required only when the credit report’s effect on the initial rate is necessary to put the consumer in a worse position than other relevant facts would have decreed anyway. However, Souter said that Geico did not owe Edo an adverse-action notice because it offered him a rate identical to the one he would have received had his credit score not been considered. And Safeco’s interpretation of the statute, although erroneous, was “not objectively unreasonable” when made and was thus not “reckless” as a matter of law. ATTORNEY FEES See Page 7 for a story on the justices’ unanimous ruling that a party cannot be awarded attorney fees in an action brought under 42 U.S.C. 1983 when the party wins a preliminary injunction in the case but does not ultimately win on the merits. Sole v. Wyner, No. 06-531.

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