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BUSINESS LAW Firm’s president can be sanctioned for VP’s bribe Despite being unaware of a corporate vice president’s bribes of U.S. Department of Agriculture inspectors, the corporation and its president were subject to sanctions for the illegal activity, the U.S. Circuit Court of Appeals for the District of Columbia held on Aug. 14. Kleiman & Hochberg Inc. v. Department of Agriculture, No. 06-1283a. John Thomas, a vice president and 31.6% owner of Kleiman & Hochberg Inc., a food distributor, pleaded guilty to bribing a U.S. Department of Agriculture food inspector in order to obtain expedited inspections. The agency’s Agricultural Marketing Service filed an administrative complaint charging Kleiman with violating the Perishable Agricultural Commodities Act. The service determined that Michael Hirsch, the company’s president, was “responsibly connected” to Kleiman within the meaning of the act, meaning that if Kleiman’s license were revoked, Hirsch would be barred from working at a licensed company for a year. A Department of Agriculture judicial officer revoked Kleiman’s license. Affirming, the D.C. Circuit held that, although the judicial officer’s sanction was harsh, it was not arbitrary or unreasonable. Under the perishable commodities act, Hirsch’s lack of knowledge of the bribes was irrelevant. The court said, “Hirsch again notes that Thomas’ bribes were undisclosed, and insists that a person cannot be responsibly connected to a violating licensee unless he ‘either knew or should have known about the violations and then failed to take action to counteract the actions of others constituting the violations.’ But neither the statutory definition of ‘responsibly connected’ . . . nor the statutory ‘nominal’ and ‘alter ego’ exceptions suggest such a knowledge requirement.” Full text of the decision CONSTITUTIONAL LAW Forcing drunk driver off road isn’t excessive force A Georgia judge properly granted summary judgment to an officer accused of violating a drunken-driving suspect’s constitutional rights by deliberately colliding with his vehicle to end a high-speed chase in traffic, the 11th U.S. Circuit Court of Appeals held on Aug. 14. Beshers v. Harrison, No. 05-17096. In 2002, Toccoa, Ga., police were called to Bev’s Quick Stop where a clerk reported that a customer, who appeared to be intoxicated, had tried to steal beer. Officer Scott Harrison saw a truck matching the description of the suspect’s vehicle run a stop sign entering a four-lane commercial road. Harrison activated his lights, turned on his sirens and followed. Other officers joined the chase. The driver of the truck, David Beshers, forced numerous motorists off the road and collided with one vehicle. Harrison’s car clipped the rear of Beshers’ truck, causing it to flip several times. Beshers died at the scene. His son, Jason Beshers, filed suit, under 42 U.S.C. 1983, against the city of Toccoa, its police chief and four officers, alleging a violation of the Fourth Amendment right to be free from excessive force during a police stop. A Georgia federal judge granted summary judgment to the defendants. While the appeal was pending, the U.S. Supreme Court decided in Scott v. Harris, 127 S. Ct. 1769, that a police officer forcing a suspect’s vehicle off the road to terminate a high-speed chase was reasonable under the Fourth Amendment. Applying Scott, the 11th Circuit affirmed. If a police officer rams his vehicle into a fleeing suspect’s car, the officer’s actions are weighed against the governmental interests of eliminating the threat on the road. “We have no doubt that Harrison’s alleged use of deadly force to stop Beshers did not violate the Fourth Amendment,” the court said. No-protest rule at V.A. hospital is constitutional A Department of Veterans Affairs regulation prohibiting demonstrations and partisan activities at V.A. hospitals is constitutionally sound, the U.S. Court of Appeals for the Federal Circuit ruled on Aug. 17. Preminger v. Secretary of Veteran Affairs, No. 07-7008. Steven Preminger, chairman of the Santa Clara County, Calif., Democratic Central Committee, was told to leave the grounds of the Menlo Park Medical Center, a V.A. hospital in California, when he attempted to get veterans at the hospital to register to vote. Preminger sued the department in a California federal court seeking to bar the V.A.’s enforcement of 38 C.F.R. 1.218(a)(14), which prohibits visitors to V.A. facilities from engaging in “demonstrations,” absent authorization from the head of the facility. The court denied his request and ruled that only the Federal Circuit had jurisdiction. The 9th Circuit affirmed. Preminger asked the Federal Circuit to review. The Federal Circuit affirmed. V.A. centers are nonpublic forums, the court said. They have areas open to the public, but there are no areas not devoted to the provision of medical services to veterans. At nonpublic forums, the government can restrict access to speakers so long as that restriction is not unreasonable or not based on a speaker’s viewpoint. A V.A. hospital must be able to decide whether a public meeting would compromise its mission. Even if constitutionally protected activity is barred, that alone does not render the regulation so “substantially overbroad” as to warrant facial invalidation. CONTRACTS Wireless agreement not to sue is unconscionable An online agreement requiring Cingular Wireless customers to waive their right to sue in order to obtain services was an unconscionable contract of adhesion under California law and was not pre-empted by the Federal Arbitration Act, the 9th U.S. Circuit Court of Appeals held on Aug. 17. Shroyer v. New Cingular Wireless Servs. Inc., No. 06-55964. Kenneth Shroyer was a wireless telephone customer of AT&T Wireless Services Inc. when it merged with Cingular Wireless LLC to create New Cingular Wireless Services Inc. After complaining that his service had deteriorated following the merger, Cingular told him that if he executed a new, extended agreement, his connectivity problems would cease. Shroyer executed the new agreement, but, along with other customers alleging post-merger service problems, he filed a class action in California state court against Cingular. Cingular removed the suit to a California federal court, pursuant to the Class Action Fairness Act of 2005, and moved to compel arbitration based on the online agreement’s provision compelling binding arbitration. The court granted Cingular’s motion. Reversing, the 9th Circuit held that the online contract was an unconscionable contract of adhesion under California law and that it was not pre-empted by the Federal Arbitration Act. The court said, “[A] contract may be procedurally unconscionable under California law when the party with substantially greater bargaining power ‘presents a ‘take-it-or-leave it’ contract to a customer � even if the customer has a meaningful choice as to service providers.’ ” CRIMINAL PRACTICE Mitigating facts of death-row inmate not heard Applying a series of U.S. Supreme Court rulings, the 5th U.S. Circuit Court of Appeals granted a Texas death-row inmate’s habeas corpus petition on Aug. 14, finding that there was a reasonable likelihood that questions presented to the jury during sentencing failed to take account of the defendant’s mitigating evidence. Coble v. Quarterman, No. 01-50010. Billie Wayne Coble was convicted of murdering his wife’s parents and his wife’s brother and sentenced to death. A Texas federal judge denied habeas relief, but the 5th Circuit agreed to consider whether the “special issue” interrogatories in the Texas capital sentencing instruction precluded effective consideration of Coble’s mitigating evidence in violation of the mandates of two U.S. Supreme Court rulings: Penry v. Lynaugh, 492 U.S. 302 (1989) ( Penry I); and Penry v. Johnson, 532 U.S. 782 (2001) ( Penry II). Texas law at the time of Coble’s trial required juries to answer affirmatively two questions: whether the defendant acted deliberately and whether there is a probability that he will commit further violent acts. In Penry I and Penry II, the justices held that the two interrogatories failed to satisfy the constitutional requirement that a jury meaningfully consider a capital defendant’s mitigating evidence. Eventually, the Texas Legislature added a mitigating evidence question for jurors to answer. The Texas Court of Criminal Appeals, the state’s highest criminal court, concluded that the special issues did not preclude the jury from weighing Coble’s mitigating evidence. The 5th Circuit reversed, holding that Coble had offered substantial mitigating evidence: from his living in an orphanage to his being hospitalized for post-traumatic stress disorder after returning from Vietnam. The court found that “there is a reasonable likelihood that the jury was precluded from giving full effect to Coble’s mitigating evidence,” and that the Texas criminal high court’s finding “was an unreasonable application of clearly established federal law as determined by the Supreme Court.” Forfeiture of unreported funds is fair punishment An order of forfeiture of more than $100,000 that a man tried to bring on a plane without reporting it does not violate the Eighth Amendment to the U.S. Constitution, the 1st U.S. Circuit Court of Appeals held on Aug. 7. USA v. Jose, No. 05-1126. Otilio Jose had $114, 948 on him when he checked in at a Puerto Rico airport. He declared $1,400. The USA Patriot Act requires reporting of any amount in excess of $10,000. Jose claimed he found the money and did not know of the reporting requirements. He pleaded guilty to violation of 31 U.S.C. 5332(a) (the “bulk cash smuggling statute”), which is part of the USA Patriot Act of 2001. A Puerto Rico federal court ordered the forfeiture of $114,948. Jose appealed, claiming the forfeiture was an excessive fine in violation of the Eighth Amendment. Affirming, the 1st Circuit held that the funds may well have been linked to other criminal activities, that Congress had clearly expressed its belief that bulk cash smuggling is a serious offense linked to various kinds of harm and that forfeiture constituted “punishment,” which was not out of line with the Federal Sentencing Guidelines. The court said that forfeiture of $114,948 does not deprive Jose of his livelihood. The money was not Jose’s to start with, so “whether the government forfeits it or not, it is really of no consequence to him because it wasn’t his to be forfeited.” Also, the forfeiture does not implicate historic concerns underlying the excessive-fines clause. EMPLOYMENT FMLA self-care provision violates 11th Amendment The self-care provision of the Family and Medical Leave Act is unconstitutional inasmuch as Congress is attempting to abrogate state sovereign immunity, the Utah Supreme Court held on Aug. 14. Nicholas v. Attorney General, No. 20060297. Lynn Nicholas was an assistant attorney general in the Office of the Utah Attorney General when her daughter-in-law died unexpectedly following childbirth. She was subsequently diagnosed with post-traumatic stress disorder and took several leaves of absence, under the “self-care” provisions of the Family and Medical Leave Act (FMLA). She claimed that when she was ready to return to work, her employer discouraged her from doing so, causing a further deterioration of her health and prompting her to take disability retirement. She sued, alleging that the state AG had interfered with her rights under the FMLA. The trial court dismissed the complaint based on state immunity. Affirming, the Utah Supreme Court held that the U.S. Congress had not validly abrogated state sovereign immunity when it passed the self-care provision of the FMLA. Congress may abrogate 11th Amendment state immunity if it makes its intention to do so “unmistakably clear” in the language of the statute. TORTS Negligent credentialing of a physician is a tort The tort of negligent credentialing of a physician by a hospital exists and is not precluded by Minnesota’s peer-review statute, the Minnesota Supreme Court held on Aug. 16. Larson v. Wasemiller, nos. A05-1698, A05-1701. Dr. James Wasemiller and Dr. Paul Wasemiller performed gastric bypass surgery on Mary Larson at St. Francis Medical Center. St. Francis had granted hospital privileges to Wasemiller. Such privileges are decided by the hospital’s governing body based on the recommendations of a credentials committee. Wasemiller performed a second surgery on Larson to deal with complications arising from the first surgery. Larson underwent a third, emergency, surgery after being transferred to a long-term care facility. She brought a medical malpractice action. The trial court certified to the intermediate appellate court the question of whether Minnesota recognizes the common law cause of action of negligent credentialing of a physician. The court said no. Reversing, the Minnesota Supreme Court found that the tort is an extension of recognized torts such as a hospital’s duty to protect its patients from third-party harm. Minn. Stat. �� 145.61-.67, Minnesota’s peer-review statute, provides for the confidentiality of peer-review proceedings and grants some immunity to those involved in the credentialing process. While the statute doesn’t create a negligent-credentialing cause of action, the policy underlying peer review � that of improving the quality of patient care � is adequately protected by the statute’s confidentiality provision. Child can sue doctor for mother’s lack of consent A child born alive has an independent cause of action for injuries caused by the delivery doctor’s failure to get the child’s mother’s informed consent during labor and delivery, the Tennessee Supreme Court ruled on Aug. 17, on a certified question from the 6th U.S. Circuit Court of Appeals. Miller v. Dacus, No. M2006-02728-SC-R23-CQ. In 2003, 10-year-old Marissa Miller sued her mother’s doctor in a Tennessee federal court over the doctor’s alleged failure to get informed consent from her mother during labor and delivery. The court dismissed the suit, ruling that a doctor’s duty to obtain informed consent is owed to the mother, not to the child. On appeal, the 6th Circuit certified two questions to the Tennessee Supreme Court: whether Marissa had an independent cause of action on the informed-consent issue, and, if a cause of action exists, whether the minority provision of Tennessee’s legal disability statute, Tenn. Code Ann. � 28-1-106, tolls the medical malpractice statute of repose, Tenn. Code Ann. � 29-26-116(a)(3). The Tennessee Supreme Court answered yes to both questions. The court said it would be arbitrary to allow a minor to recover for injuries sustained 10 minutes after delivery, but not 10 minutes before. A minor can’t consent in either case, so consent must be obtained from a parent or guardian. For medical procedures involving a pregnant mother and especially when a pregnant mother enters labor, informed consent from her provides the necessary consent for medical treatment for the mother and the infant in utero. Furthermore, Melissa, through her mother, filed her claim in 2003. Because her case commenced before Dec. 9, 2005, her minority tolled the three-year statute of repose for medical malpractice actions. She was 10 years old at the time, and thus falls within the protection of Tennessee’s disability tolling statute.

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