73 The Alabama Lawyer 312 (2012). THE APPELLATE CORNER.

• Author: Marc A. Starrett, Wilson F. Green

Alabama Bar Journal

2012.

73 The Alabama Lawyer 312 (2012).

THE APPELLATE CORNER

THE APPELLATE CORNERMarc A. Starrett, Wilson F. GreenUpcoming Cases in the U.S. Supreme Court's October 2012 Term

By Marc A. Starrett

Marc A. Starrett is an assistant attorney general for the State of Alabama and represents the state in criminal appeals and habeas corpus in all state and federal courts. He is a graduate of the University of Alabama School of Law. Starrett served as staff attorney to Justice Kenneth Ingram and Justice Mark Kennedy on the Alabama Supreme Court, and was engaged in civil and criminal practice in Montgomery before appointment to the Office of the Attorney General. Among other cases for the office, Starrett successfully prosecuted Bobby Frank Cherry on appeal from his murder convictions for the 1963 bombing of Birmingham's Sixteenth Street Baptist Church.

By Wilson F. Green

Wilson F. Green is a partner in Fleenor and Green LLP in Tuscaloosa. He is a summa cum laude graduate of the University of Alabama School of Law and a former law clerk to the Hon. Robert B. Propst, United States District Court for the Northern District of Alabama. From 2000-09, Green served as adjunct professor at the law school, where he taught courses in class actions and complex litigation. He represents consumers and businesses in consumer and commercial litigation.

Like Caesar's Gaul, this month's report is divided in partes tres. First, we preview some of the upcoming cases on which certiorari review has been accepted for the U.S. Supreme Court's October 2012 term. Second, we note some recent civil decisions from the state and federal appellate courts ("note" and "some" being the operative words: due to space constraints we cannot cover all important decisions and cannot describe them in detail). Third, we review some recent noteworthy criminal cases.

11-10S5-Amgen Inc. v. Connecticut Retirement Plans and Trust Funds: (1) Whether, in a misrepresentation case under Rule 10b-5, the court must require proof of materiality before certifying a plaintiff class based on the fraud-on-the-mar-ket theory; and (2) whether the court must allow the defendant to present evidence rebutting the applicability of the fraud-on-the-market theory before certifying a plaintiff class based on that theory

11-597 -Arkansas Game and Fish Commission v. U.S.: Whether government actions that impose recurring flood invasions must continue permanently to become a "taking" of property

11-820-Chaidez v. U.S.: Whether the Court's decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), holding that criminal defendants receive ineffective assistance of counsel when counsel fail to advise them that pleading guilty will trigger deportation, applies retroactively

11-864-Comcast Corp. v. Behrend Whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis

11-1327-Evans v. Michigan Whether double jeopardy bars retrial after a trial judge erroneously held a fact to be an element of the offense and granted a mistrial directed verdict of acquittal because prosecution failed to prove it

11-345-Fisher v. University of Texas: Whether the University of Texas's use of race in undergraduate admissions decisions is constitutional

11-817-Florida v. Harris: Whether an alert by a well-trained narcotics detection dog certified to detect illegal contraband is insufficient to establish probable cause for the search of a vehicle

11-564 -Floridav. Jardines:Whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause

11-1160-FTC v. Phoebe Putney Health Systemi Whether the Georgia legislature, by vesting a local government entity with general corporate powers to acquire and lease out hospitals and other property, has displaced competition in the hospital market to trigger the "state action doctrine" exception to antitrust

11-1053-Genesis HealthCare Corp. v. Symczyk Whether a case becomes moot, and thus beyond the judicial power of Article III, when the lone plaintiff receives an offer from the defendants to satisfy all of the plaintiff's claims

11-9307-Henderson v. U.S.: Whether, when the governing law is unsettled at the time of trial but settled in the defendant's favor by the time of appeal, an appellate court reviewing for "plain error" should apply the time-of-appeal standard or the time-of-trial standard

11-1175-Marx v. General Revenue Corp.: Whether a prevailing defendant in a Fair Debt Collection Practices Act (FDCPA) case may be awarded costs for a lawsuit that was not brought in bad faith and for the purpose of harassment

11-70- Moncrieffe v. Holder: Whether a conviction of an alien under state law for distribution of a small amount of marijuana without remuneration constitutes an "aggravated felony," where conduct would not constitute a federal felony

11-8976-Smith v. U.S.: Whether withdrawing from a conspiracy prior to the statute of limitations period negates an element of a conspiracy charge such that, once a defendant meets his burden of production that he did so withdraw, the burden of persuasion rests with the government to prove otherwise-the...