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Abortion Case Nixed, 9th Already Reversed, Cy Pres Procrastinated

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By William Peacock, Esq. on November 04, 2013 10:59 AM

Busy Monday.

This morning, the court released an orders list with quite a few surprises, including the Court's response to the Oklahoma Supreme Court's certified question answers in the medical abortion (RU-486 "off-label") dispute, a per curium reversal of a Ninth Circuit decision (the fun starts early, apparently), and finally, with a Schwarzenegger-esque, "we'll be back" sort-of-statement, Chief Justice Roberts announced the denial of certiorari in Mark v. Lane, a Facebook class-action settlement case.

Interested in the short version, rather than the court's 27-page orders list? Read on:

Okla. "Off-Label" Medical Abortion Case: Improvidently Granted

Well, that was interesting.

Oklahoma banned the off-label use of certain drugs for abortions. The state supreme court, in an opinion consisting of a few sentences and a lot of citations, held that the law violated the Supreme Court's Casey precedent. And then the nation's high court granted certiorari -- conditionally.

Apparently satisfied with the Oklahoma high court's responses to their certified questions, the court dismissed the case this morning as improvidently granted, meaning the split still exists (the Sixth Circuit upheld a similar Ohio law last year).

Ninth Circuit's Lashings Start Early in Stanton v. Sims

An officer sees a shady-looking fella walking in the street, tries to initiate a Terry stop, and the suspect takes off, entering a yard surrounded by a six-foot enclosed fence. Unable to see beyond the fence, the Officer Stanton kicks the door of the fence open, striking and injuring the homeowner, Drendolyn Sims, who was not the suspect.

Does he get qualified immunity? Qualified immunity doesn't apply when an officer is "plainly incompetent" and violates law that was "beyond debate." The Ninth Circuit denied immunity, but, as the court notes, we still don't know if an officer, in "hot pursuit," has the right to pursue a person suspected of a misdemeanor offense into a person's home (or the yard, for that matter).

"To summarize the law at the time Stanton made his split-second decision to enter Sims' yard: Two opinions of this Court were equivocal on the lawfulness of his entry; two opinions of the State Court of Appeal affirmatively authorized that entry; the most relevant opinion of the Ninth Circuit was readily distinguishable; two Federal District Courts in the Ninth Circuit had granted qualified immunity in the wake of that opinion; and the federal and state courts of last resort around the Nation were sharply divided."

No clearly-established law? Immunity applies. Good luck with regaining that most-reversed title, Ninth Circuit.

Cy Pres Procrastination

Facebook's Beacon program collected user-data from third-party sites (such as movie rental choices). If the person was a Facebook user, that data was shared on their profile. (Yep, everyone knows that you rented "The Mating Habits of the Earthbound Human," a B-movie romantic comedy that sounds more dirty than it actually is.)

Facebook later made Beacon "opt-in," rather than automatic, before discontinuing it altogether.

A class-action ensued, a settlement was reached before class certification, and the lawyers and named plaintiffs were paid-off. The parties also cleverly amended the settlement to deprive others (the post-opt-in class) of their right to litigate similar, but separate claims.

The remaining $6 million or so of the settlement went to a newly-created privacy foundation which had a prominent Facebook executive on the board.

Yeah, definitely shady. The Ninth Circuit upheld the settlement, and denied en banc rehearing over the vehement dissent of six judges. The Supreme Court, while implying that they saw the shadiness, denied cert., but warned that the issue of appropriate cy pres settlements may need to be addressed in a more appropriate (i.e., not so small potatoes) case.

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