73 The Alabama Lawyer 394 (2012). THE APPELLATE CORNER.

• Author: Marc A. StarrettWilson F. Green

Alabama Bar Journal

2012.

73 The Alabama Lawyer 394 (2012).

THE APPELLATE CORNER

THE APPELLATE CORNER Marc A. Starrett Wilson F. Green 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.

This issue follows the same three-part outline as last issue: first, some upcoming cases of interest which the U.S. Supreme Court has just accepted for review since last issue; second, recent civil decisions from the Alabama appellate courts and the Eleventh Circuit since last issue; and, third, recent criminal decisions.

Upcoming Cases Recently Accepted by the U.S. Supreme Court for the 2012 Term

Already, LLC v. Nike, Inc., No. 11-982

Whether a federal district court is divested of Article III jurisdiction over a party's challenge to the validity of a federally registered trademark if the registrant promises not to assert its mark against the party's then-existing commercial activities

Bailey v. U.S., No. 11-770

Whether, pursuant to Michigan v. Summers, 452 U.S. 692 (1981), police officers may detain an individual incident to the execution of a search warrant when the individual has left the immediate vicinity of the premises before the warrant is executed

Clapper v. Amnesty Int'l. USA, No. 11-1025

Whether Article III standing to seek prospective relief is found where respondents (a) proffered no evidence that the United States would imminently acquire their international communications using 50 U.S.C. 1881a-authorized surveillance, and (b) did not show that an injunction prohibiting Section 1881a-authorized surveillance would likely redress their purported injuries

Georgia-Pacific West v. Northwest EDC, No. 11-347

Whether the Ninth Circuit should have deferred to the EPA's longstanding position that channeled runoff from forest roads does not require a permit, and erred by requiring the EPA to regulate the same as industrial wastewater runoff requiring an NPDES permit

Maracich v. Spears, No. 12-25

Whether lawyers who obtain, disclose or use personal information solely to find clients to represent in an incipient lawsuit-as opposed to evidence for use in existing or potential litigation-may invoke the litigation exception of the Driver's Privacy Protection Act, 18 U.S.C. §§ 2721-2725

Missouri v. McNeely, No. 11-1425

Whether a law enforcement officer may obtain a noncon-sensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream

The Standard Fire Ins. Co. v. Knowles, No. 11-1450

Whether, when a named plaintiff attempts to defeat a defendant's right of removal under the Class Action Fairness Act of 2005 by filing with a class action complaint a "stipulation" that attempts to limit the damages he "seeks" for the absent putative class members to less than the $5 million threshold for federal jurisdiction, and the defendant establishes that the actual amount in controversy, absent the "stipulation," exceeds $5 million, the "stipulation" is binding on absent class members so as to destroy federal jurisdiction

Vance v. Ball State Univ., No. 11-556

Whether the "supervisor" liability rule for Title VII liability under the Faragher/Ellerthstandard (i) applies to harassment by those whom the employer vests with authority to direct and oversee their victim's daily work, or (ii) is limited to those harassers who have the power to "hire, fire, demote, promote, transfer, or discipline" their victim

Recent Civil Decisions of Note from the Alabama Appellate Courts

Forum Selection; Waiver

Ex parte Spencer, No. 1110319 (Ala. Sept. 28,...