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Archive for August, 2011

The Fourth Circuit issued a split decision today in Gray v. Hearst Communications, Inc. affirming the certification of a class of business advertisers. The class members are businesses that purchased advertising in The Talking Telephone Book directories published in various South Carolina markets. The class alleged that they bought this advertising on the basis of the publishers’ representation of its distribution coverage, but that the publisher “knowingly misrepresented its actual distribution, never made a full distribution as promised, and intentionally sought to conceal this deception.” The district court certified a class to pursue three theories: breach of contract, breach of the implied covenant of good faith and fair dealing, and unfair and deceptive trade practices. Judge Shedd authored the Fourth Circuit’s majority opinion affirming certification, an unpublished opinion that was joined in by Judge Moon (senior judge from WDVA sitting by designation). Judge Wilkinson dissented.

The case was argued in December 2010. Eight months between argument and decision is a long time even for a split decision, particularly when the resulting opinions are not lengthy. The wait may have been due to a desire to wait until the Supreme Court decided Wal-Mart v. Dukes, a case discussed by both majority and dissent.

The decision may be of interest to students of appellate practice, inasmuch as the majority opinion attributes dispositive significance to a concession made by counsel for appellant at the oral argument.

For students of class action law, however, the majority opinion should be of less interest. The unpublished opinion contains only a cursory discussion of the predominance requirement of 23(b)(3). Moreover, the analysis examines only certification of the breach of contract claim, disposing of class certification questions surrounding the other two claims in a brief footnote. Also disposed of in another brief footnote at the end of the opinion are appellant’s arguments “that the district court abused its discretion by (a) certifying Gray’s class on a conditional basis, (b) failing to conduct a rigorous analysis of the record, and (c) finding the class satisfied the superiority, typicality, and adequacy requirements of Rule 23(b)(3).”

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The Fourth Circuit issued a published decision today affirming the district court’s dismissal of all claims in A Society Without a Name, For People Without a Home, Millennium Future-Present v. Virginia. The case, also known as ASWAN v. Virginia, involves challenges to various steps taken by Virginia Commonwealth University and the City of Richmond to relocate services for the homeless away from downtown Richmond.

The panel ruling was divided along a couple of dimensions. Judge Gilman (senior Sixth Circuit judge sitting by designation) wrote the lead opinion affirming the district court’s dismissal of all claims. Judge Motz wrote a separate opinion concurring in Judge Gilman’s opinion except with respect to analysis of the Society’s ADA claim against VCU (which Judge Motz would have allowed to proceed). Judge Wynn wrote a separate opinion concurring in Judge Gilman’s opinion except with respect to analysis of whether various claims were barred by the statute of limitations (the majority said yes and Judge Wynn said no).

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The Fourth Circuit usually has its opinions posted by this time of day, but they are probably experiencing some minor delays stemming from this afternoon’s earthquake. Here at the University of Richmond School of Law, we felt tremors for maybe 30 seconds or so. The shaking knocked over some large piles of books in my office and caused some pictures to hang askew, but caused no major damage that I’m aware of.

 

UPDATE (4 p.m.): No opinions in argued cases issued today.

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The Fourth Circuit issued a published opinion in Dewhurst v. Century Aluminum Company affirming the denial of a preliminary injunction seeking continuation of certain health care benefits. The dispute in Dewhurst arose out of Century’s decision to modify or terminate retiree health benefits for certain retirees, who then filed a suit contending that their benefits were vested and therefore protected from modification under the the Labor Management Relations Act and ERISA. Judge Copenhaver of the Southern District of West Virginia denied a motion for a preliminary injunction. Judge Agee authored the unanimous opinion affirming Judge Copenhaver’s denial of relief. Judges Wilkinson and King joined Judge Agee’s opinion.

The decision rejects appellants’ reliance on the so-called Yardman inference (named for the Sixth Circuit’s decision in Intl. Union, United Automobile, Aerospace & Agricultural Implement Workers of America v. Yard-Man, Inc., 716 F.2d 1476 (6th Cir. 1983)). Appellants relied on Yard-Man for the proposition that retiree benefits “continue so long as the prerequisite status is maintained.” Judge Agee’s opinion concludes that the appellants overread not only Yard-Man, but also a Fourth Circuit decision (Keffer v. H.K. Porter Co., 872 F.2d 60, 62 (4th Cir. 1989)) that appellants (mistakenly) characterized as adopting appellants’ overly expansive interpretation of Yard-Man.

The decision also contains language emphasizing the clear showing of a likelihood of a success on the merits that must be made by one seeking a preliminary injunction.

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The Fourth Circuit’s en banc decision last week in United States v. Simmons changed the way that the Fourth Circuit analyzed prior North Carolina convictions for sentencing enhancement under the Armed Career Criminal Act. (See here for my earlier discussion of this decision.) The day after Simmons was handed down, a panel vacated the sentence for a drug conspiracy in United States v. Morton. Today brings news of another sentence vacated under Simmons–an almost 20-year sentence (235 months) in United States v. Trent. The ACCA sentencing enhancement had raised Trent’s sentencing range from 120-150 months to 235 to 293 months.

Trent’s arrest and prosecution followed a car chase in which Trent “drove faster than 100 miles per hour into oncoming traffic,” lost control of his Ford Taurus, and crashed into a commercial storefront. While escaping out a side door, Trent was observed dropping an object “about the size of his hand.” Officers ran down Trent and his passenger. A search of the car revealed a handgun and drug paraphernalia. Trent was convicted of being a felon in possession of a firearm. Among the predicate convictions relied upon by the government for a sentencing enhancement under ACCA were two convictions for felony speeding to elude arrest. The facts underlying those two convictions closely resembled the car chase that resulted in his federal prosecution. “[I]n all three incidents, Trent drove recklessly, wrecked his vehicle, fled on foot from police, and then attempted to dispose of his firearm.” Because Trent could not have been sentenced to more than one year imprisonment for each of those prior attempts, in light of the framework supplied by Simmons, those two prior convictions could not be used as the basis of the ACCA enhancement that Trent received.

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Frank Green of the Richmond Times-Dispatch reports on Virginia’s execution Thursday night of Terry Jerrell Jackson, 30, for the 2001 rape and murder of an elderly woman. The story focuses on the execution as witnessed by a French reporter, and it excerpts the story written by that reporter:

Jackson lies on a raised gurney fitted with leather straps. Six prison staffers methodically strap him down.

The curtain closes abruptly, and the employees, unseen, insert catheters into each of Jackson’s arms.

Five minutes pass, and the audience is silent. A cough escapes from behind the curtain.

After 10 minutes, the fabric is drawn open, and Jackson is still conscious, his arms crossed over his chest.

The catheters, barely visible, will carry the lethal cocktail of three drugs — an anesthetic, then a muscle paralyzer, and finally potassium chloride to stop respiration — to Jackson’s body.

Jackson’s execution is the first in Virginia this year, and the first in the state to use the anesthetic pentobarbital, which is normally used to euthanize animals.

Several states switched to the drug this year instead of sodium thiopental for their lethal injections after the sole US supplier ceased production.

Jackson’s face is largely hidden by the bulk of his body, but his chest can be seen rising and falling. His toes twitch.

Prison warden George Hinkle looks at Jackson. “Do you have any last words?”

Jackson appears to say “no,” but no one is really sure.

Hinkle steps away, and the injections begin. A clock above the door marks the time: 9:08 pm.

A minute passes, and Jackson’s toes stop twitching. To the witnesses, Jackson looks completely inert.

At 9:14, an official declares, to no one in particular, “the order of the court was carried out.”

Jerry Jackson is dead. The curtain is drawn once again, and the witnesses — some of them shaken — stand up. No relatives of the murder victim are in attendance.

Outside the chamber, in a dark parking lot of the prison, a dark Chevrolet van waits to take delivery of Jackson’s body.

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The Fourth Circuit’s 8-5 en banc decision in United States v. Simmons holds that the Fourth Circuit’s earlier decision in United States v. Harp, 406 F.3d 242 (4th Cir. 2005), “no longer remains good law” in light of a Supreme Court decision interpreting a different statute.

At issue in Simmons and Harp is how to determine whether a particular offense under North Carolina law is “punishable by imprisonment for a term exceeding one year,” and therefore qualifies as a predicate felony conviction under the federal Controlled Substances Act. To simplify (perhaps oversimplify): The old approach (in Harp) looked to the offense itself and asked whether any defendant prosecuted for that offense could be eligible for punishment of more than one year. The new approach (in Simmons) looks to the maximum punishment for which the offender was eligible based on the particular facts that dictated where the offender’s sentence fell in North Carolina’s structured sentencing scheme.

Simmons’s prior offense of possession with intent to sell no more than ten pounds of marijuana was a Class 1 felony under North Carolina law. A Class 1 felony is punishable by a sentence exceeding one year’s imprisonment if certain conditions are satisfied. Those conditions were not satisfied with respect to Simmons’s prior offense. The Fourth Circuit held, consequently, that Simmons was not eligible for the 10-year statutory minimum under the federal Controlled Substances Act.

Judge Motz wrote the majority opinion, which was joined by Judges King, Gregory, Shedd, Davis, Keenan, Wynn, and Diaz. Judge Agee authored the principal dissent, joined by Chief Judge Traxler and Judges Wilkinson, Niemeyer, and Duncan. Judge Duncan also authored a solo dissent.

The decision appears noteworthy for a few reasons.

(more…)

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