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• ADR Class action waiver in appendix unconscionable A dispute resolution program’s waiver of the right to bring a class action against an employer is unenforceable, the 1st U.S. Circuit Court of Appeals held on Nov. 19. Skirchak v. Dynamics Research Corp., No. 06-2136. Two managers brought a class action against their former employer, Dynamics Research Corp., for alleged violations of the Fair Labor Standards Act (FLSA) and the Massachusetts Minimum Fair Wage Law. Dynamics moved to compel arbitration under its dispute resolution program, which contains language waiving class actions. A Massachusetts federal court struck the waiver provisions as unconscionable and invalid, but ordered arbitration. The 1st Circuit affirmed the striking of the class action waiver as unconscionable under state law and thus under the Federal Arbitration Act. Documents pertaining to the program had been e-mailed to the employees. A memorandum stated that the “program does not limit or change any substantive legal rights of the employees,” but does require following the program’s procedures. The court said that the class action waiver is only mentioned in the appendices describing the program’s rules. The final page of an appendix says that continued employment after a certain date “constitutes consent” to be bound by the program. The court said the waiver “lacked both prominence and clarity,” thus rendering it unconscionable and unenforceable.   Full text of the decision • CIVIL RIGHTS Statistics necessary for disparate impact claim A plaintiff must present statistical data to show how a private landlord’s actions had an adverse impact on a particular group of people under the Fair Housing Act, the 6th U.S. Circuit Court of Appeals ruled on Nov. 21. Graoch Associates #33 L.P. v. Louisville/Jefferson County Metro Human Relations Comm’n, No. 06-5561. In March 2003, a Louisville, Ky., apartment owner notified the local housing authority that it was withdrawing from the Section 8 federal subsidized-housing voucher program. Because 17 of the 18 families affected by the landlord’s decision were black, three of those tenants and the Kentucky Fair Housing Council filed a complaint with the Louisville Human Relations Commission. The commission found probable cause to believe that the landlord’s withdrawal amounted to racial discrimination because of the disparate impact on blacks. The landlord sought declaratory relief in a Kentucky federal court, arguing that the Fair Housing Council had not established a Fair Housing Act (FHA) violation, and that even if the council had established a prima facie case, the landlord was allowed to withdraw from the program as a “business necessity.” The court ruled for the landlord. The 6th Circuit affirmed and set forth a new analytical framework to use to decide whether a plaintiff “has done enough to survive summary judgment on a disparate-impact claim against a private defendant under the FHA.” Based on the burden-shifting framework the U.S. Supreme Court established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the court explained that a plaintiff must first show by statistical evidence how the specific practice caused the adverse affect. If that showing is made, the defendant must offer a “legitimate business reason” for the practice. If that showing is made, the plaintiff must show that the reason given was a pretext. In this case, the Fair Housing Council had not presented any data on the total pool of tenants, including the races of the non-Section 8 tenants, in the landlord’s apartment complex and so didn’t clear the first step. • CONSTITUTIONAL LAW Ga. sex offender law is unconstitutional taking Provisions of a Georgia law prohibiting convicted sex offenders from living within 1,000 feet of areas where minors congregate were unconstitutional, the Georgia Supreme Court held on Nov. 21. Mann v. Department of Corrections, No. S07A1043. Anthony Mann, a convicted sex offender, complied with both Georgia sex offender registration law and with the provisions of Ga. Code Ann. � 42-1-15, which contained restrictions as to where registered offenders could live and work. Section 42-1-15 prohibited registered sex offenders from living or working within 1,000 feet of a child care facility, church, school or place where minors congregate. At the time Mann purchased a home and entered a business partnership, he was in compliance with both the residency and work restrictions. However, after child care facilities opened within 1,000 feet of his home and work, Mann’s probation officer demanded that he vacate his home and business premises or face revocation of probation and a lengthy prison term. Mann sued in state court, challenging Section 42-1-15 as an unconstitutional taking. A trial court rejected Mann’s arguments. Affirming in part and reversing in part, the Georgia Supreme Court upheld the work restriction, but held that, as applied to Mann, Section 42-1-15′s residency restriction constituted an unconstitutional taking because � unlike states such as Alabama and Iowa � the Georgia law contained no exception for circumstances in which the offender lived in the area before the establishment of a facility for minors. The court said, “[U]nder the circumstances present here, justice requires that the burden of safeguarding minors from encounters with registered sexual offenders must be ‘spread among taxpayers through the payment of compensation.’ We therefore find that OCGA � 42-1-15 (a) is unconstitutional because it permits the regulatory taking of appellant’s property without just and adequate compensation.” • CRIMINAL PRACTICE No need to show ID theft for an ID theft conviction To get a conviction for aggravated identity theft, the government is not required to show either that the defendant stole the identification or that he knew the ID he used belonged to another actual person, the 11th U.S. Circuit Court of Appeals held Nov. 21 in a case of first impression. U.S. v. Hurtado, No. 07-11138. On a six-count indictment in Florida, Jairo Roberto Hurtado was convicted on two counts of using the identification of another person during the commission of a felony, a violation of 18 U.S.C. 1028A(a)(1). Applying for a passport, Hurtado presented a birth certificate, Social Security number and driver’s license in the name of Marcos Alexis Martinez Colon. The application was flagged as possibly fraudulent by government agents. Admitting his real identity to the agents, Hurtado said he was from Colombia and had paid $1,500 for the birth certificate and Social Security card. Hurtado also had in Colon’s name a bank debit card linked to an account into which Hurtado had made payments. At trial, the government did not present any evidence as to how Colon’s birth certificate and Social Security number left Colon’s possession. Nor was there evidence that Hurtado’s use of Colon’s name had hurt Colon financially. At the close of the government’s case, Hurtado sought a judgment of acquittal for identity theft, arguing that there was no victim and no theft. A Florida federal judge denied the motion. The jury found Hurtado guilty on all six counts. Affirming the convictions, the 11th Circuit said, “There is no requirement of financial harm in � 1028A(a)(1) and the fact that Hurtado did not cause the real Colon financial harm is irrelevant. What Hurtado did was knowingly use a means of identification of another person, knowing full well that he was not Colon.” The court rejected Hurtado’s argument that the government must show that he stole the documents from Colon and that he knew Colon was an actual person. “Nothing in the plain language of the statute requires that the means of identification must have been stolen for a � 1028A(a)(1) violation to occur,” the court said. “There is no dispute here that Hurtado did not have any authority, much less lawful authority, to use Colon’s identification.” Multiplicitous firearms convictions merit fixing Multiplicitous convictions for firearms possession warrant correction under plain-error review, the 7th U.S. Circuit Court of Appeals held on Nov. 21. USA v. Parker, No. 05-2798. Jesse James Parker was convicted in an Indiana federal court of making a false statement on a federal firearms form, being a felon in possession of a firearm and being an illegal drug user in possession of a firearm. He was sentenced to concurrent prison terms on these counts but was subjected to an additional $100 special assessment for the second firearm possession conviction. He challenged his convictions and sentence on several grounds, including the ground that the two firearm possession convictions are multiplicitous. The 7th Circuit affirmed in part, reversed in part and remanded. The court agreed with Parker on his multiplicity claim. Since Parker had failed to raise the multiplicity challenge at trial, review was under the “plain error” standard. Under that standard, the court held that the sentence on one of the firearm possession counts must be vacated and the two convictions merged. This holding is inconsistent with the 7th Circuit’s prior holding on this issue. In U.S. v. McCarter, 406 F.3d 460 (7th Cir. 2005), the court had held that this type of multiplicity is not a sufficiently serious error to warrant correction under the plain-error standard. The court ruled that McCarter is inconsistent with Supreme Court precedent. • EVIDENCE Doctor-patient breach is no reason to bar evidence Evidence acquired through a violation of the physician-patient privilege need not be suppressed at a criminal trial, the New York Court of Appeals ruled on Nov. 20. People v. Greene, No. 139. During their investigation of a homicide, police looked for a man whose face had been slashed in a fight with the victim three days earlier. At a nearby hospital, administrators gave the police the name and address of a person came to the hospital on the day of the fight with a cut on his face. Police used the information to track down Temel Greene. The state trial court denied Greene’s motion to suppress all evidence obtained through the hospital’s disclosure of his name and address, and Greene was convicted of second-degree manslaughter. An intermediate appellate court affirmed. The New York Court of Appeals, the state’s highest court, affirmed. There is no requirement that evidence obtained through violation of the physician-patient privilege be suppressed. The physician-patient privilege is based on statute, not the state or federal constitutions. Past case law makes clear that statutory violations do not by themselves justify suppression of evidence. An exception can be made if the statute is designed to protect a constitutional right, but the physician-patient privilege statute does not primarily protect individuals against government conduct; it regulates a private relationship. • IMMIGRATION LAW Soliciting marijuana for sale merits deportation Solicitation to possess more than 4 pounds of marijuana for sale is a crime of moral turpitude for purposes of removal of an alien under the Immigration and Nationality Act, the 9th U.S. Circuit Court of Appeals held on Nov. 21. Barragan-Lopez v. Mukasey, No. 05-73883. Ruben Barragan-Lopez, a Mexican national, was a lawful permanent resident of the United States when he entered into a plea agreement in an Arizona state court under which he was convicted of solicitation to possess at least 4 pounds of marijuana for sale. Based on that conviction, the United States began removal proceedings against him under Section 237(a)(2)(A)(i) of the Immigration and Nationality Act for having committed a crime of moral turpitude within five years of his admission to the United States. Barragan-Lopez challenged his removal, arguing that, because solicitation is not a crime of moral turpitude for purposes of removal, solicitation to possess marijuana for sale is not a crime of moral turpitude either. The immigration judge and the Board of Immigration Appeals rejected Barragan-Lopez’s argument, and he sought a petition for review. Denying the petition for review, the 9th Circuit held that solicitation to possess at least 4 pounds of marijuana for sale is a crime of moral turpitude. Rejecting Barragan-Lopez’s attempt to use the crime of solicitation as the standard for determining moral turpitude for immigration purposes, the court said, “Barragan-Lopez was not convicted for ‘solicitation’ of unspecified criminal conduct. He was convicted for soliciting possession of over four pounds of marijuana for sale. We have previously looked to underlying crimes in determining whether convictions for inchoate offenses constitute crimes involving moral turpitude. We therefore consider the underlying possession offense in determining whether Barragan-Lopez committed a crime involving moral turpitude.” • MEDIA LAW Open-records law calls for coach pay disclosure The salary of Pennsylvania State University football coach Joe Paterno is a public record that must be disclosed under the state’s Right to Know Act, the Pennsylvania Supreme Court ruled on Nov. 20. The Pennsylvania State University v. State Employees’ Retirement Board, No. J-16-2007. A Patriot News Co. reporter requested that the State Employees’ Retirement System disclose records relating to the compensation and service history of Joe Paterno and three university officials. Though Penn State itself is not currently subject to the state’s Right to Know Act, the retirement system board determined that the salary information was a public record because it fit the definition of an “account, voucher or contract dealing with the receipt or disbursement of funds by an agency.” The board also determined that the salary information could not be withheld under the exception for personal security. Paterno and the officials sued in state trial court to prevent the board from releasing the information. The trial court ruled for the board. The Pennsylvania Supreme Court affirmed. Though Pennsylvania State University is not a state agency, the retirement system is and is therefore subject to the Right to Know Act. Disclosure of salary information is not prohibited either as a breach of fiduciary duty or as a violation of the federal Gramm-Leach-Bliley Act, under which financial institutions are required to have a security plan that protects the confidentiality of personal consumer information. Paterno’s right to privacy is outweighed by the public interest in the receipt and disbursement of state funds. “The minute any individual or entity voluntarily submits any information to the Commonwealth for the purpose of deriving a financial benefit and acquires such a benefit or contractual interest therein, that information ceases to be private in nature.”

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