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2) BANKRUPTCY: In re Owens, 07-35634 (9th Cir. Dec. 31, 2008). Shulkin Hutton, a law firm creditor of debtor Owens, appealed a decision of the Bankruptcy Appellate Panel affirming the bankruptcy court's dismissal of Owen's Chapter 11 case. The USCA affirmed, holding that the bankruptcy court did not abuse its discretion in dismissing Owen's case rather than converting it to Chapter 7. Shulkin Hutton had not shown that conversion would be in the best interest of Owens' other creditors. The USCA agreed with the Fourth Circuit that when deciding between dismissal and conversion under 11 USC Sec. 1112(b), "the court must consider the interests of all of the creditors." Rollex Corp. v. Associated Materials, 14 F.3d 240, 243 (4th Cir. 1994). Gould (author), Tallman, and Callahan, Circuit Judges. J. Shulkin of Mercer Island, WA, for the appellant; C. Johnson of Seattle, WA, for the appellees. .(Download the full text of this decision at www.ce9.uscourts.gov/) 3) COMMUNICATIONS LAW: Fones4All Corp. v. Federal Communications Comm., 06-75388 (9th Cir. Dec. 16, 2008). The petitioner sought review of a Federal Communications Commission ("FCC") decision that denied its petition for forbearance from the application of an FCC regulation. The regulation removed any requirement that incumbent local exchange carriers ("ILECs") provide unbundled services to competitive local exchange carriers ("CLECs") such as the petitioner. At issue was not the merits of the regula-tions, but Fones4All's contention that the order denying its petition was untimely, and that its petition thus must be "deemed granted" within the provisions of the Telecommunications Act of 1996. See 47 USC Sec. 160(c). The timeliness issue involves the practice of the FCC to announce a decision on the last possible day and then "backdate" the later explanation for that decision to the date on which it was announced. The USCA joined the D.C. Circuit in holding that a challenge to the practice was not properly before it because it was never raised before the FCC and, thus, administrative remedies were not exhausted. Schroeder (author) and Rawlinson, Circuit Judges, and Sandoval, District Judge. M. Hazzard of Washington, DC, for the petitioner; S. Angstreich of Washington, DC, for the intervenors; J. Carr of Washington, DC, for the respondents. .(Download the full text of this decision at www.ce9.uscourts.gov/) 4) COPYRIGHT INFRINGEMENT: Societe
Civile Succession Richard Guino, a French Trust v. Jean-Emmanuel Renoir,
07-15582 (9th Cir. Dec. 9, 2008). French artist Pierre-Auguste Renoir and
one of his assistants, Richard Guino, created between 1913 and 1917 the eleven
sculptures herein at issue ("the sculptures"). The sculptures were first
published in France no later than 1917 under Pierre-Auguste Renoir's name. There
was no pre-1978 publication containing an American-style copyright notice. In
1973, Guino ob-tained a determination by the French Supreme Court that he was
a co-author to certain works of sculpture by Pierre-Auguste Renoir, including
the sculptures herein at issue, and he was awarded a one-half interest in the
Renoir-Guino sculptures. In 1974, the sculptures were exhibited as Renoir-Guino
works for sale at the Hotel Bristol in Paris. In 1982, the Guino family and certain
members of the Re-noir family, not including the appellant, Pierre-Auguste Renoir's
great grandson (hereinafter "Renoir") entered into an agreement, pro-viding
that the Guino family would thereafter control production and reproduction of
the sculptures using plaster casts from the originals. Under this agreement, the
Guino family received exclusive rights to create subsequent editions. A trust,
Societe Civile Succession Richard Guino ("Societe"), was formed to implement
the Guino family's rights under the agreement. In 1984, Societe obtained U.S.
Copyright Office registrations for the sculptures. Those registrations represented
that the sculptures were either first published in Eng-land in 1983 or unpublished.
In 2003, Renoir sold some of the sculptures or castings to Beseder, Inc., who
advertised and sold them at its gallery in Scottsdale, Arizona. On July 10, 2003,
Societe filed a complaint against Beseder and Renoir, alleging federal copyright
infringement under 17 USC Sec. 501 et seq. and false designation and false
description of sponsorship in violation of the Lanham Act. 6) ENVIRONMENTAL LAW: League of Wilderness Defenders-Blue Mountains Biodiversity Project v. U.S. Forest Service, 06-35780 (9th Cir. Dec. 11, 2008). In their suit filed pursuant to the Administrative Procedures Act ("APA"), the League of Wilderness Defenders-Blue Mountains Biodiversity Project and Cascadia Wildlands Project (collectively "LOWD") sought declaratory and in-junctive relief to halt the Deep Creek Vegetation Management Project ("the Project"), which called for the selective logging of 12.8 million board feet of timber in the Ochoco National Forest. LOWD argued that the U.S. Forest Service failed to comply with the National Environmental Policy Act ("NEPA") and National Forest Management Act ("NFMA") in developing and implementing the Project. The district court denied LOWD's motion for summary judgment and granted the Forest Service's cross-motion for summary judgment. Because the Final Supplemental Environmental Impact Statement ("FSEIS") may not tier to a non-NEPA watershed analysis to consider adequately the aggregate cumulative effects of past timber sales, the USCA reversed the district court's grant of summary judgment in favor of the Forest Service and remanded so that the Forest Service could reissue its NEPA documentation to include the omitted information regarding past timber sales contained in the watershed analysis. Thompson, Tashima, and M.D. Smith (author), Circuit Judges. R.S. Jerger of Portland, OR, for the plaintiffs-appellants; L. Bellas of Washington, DC, for the defendant-appellee. .(Download the full text of this decision at www.ce9.uscourts.gov/) 7) ENVIRONMENTAL LAW: Oregon Natural Desert Association v. U.S. Forest Service, 08-35205 (9th Cir. Dec. 11, 2008). The Oregon Natural Desert Association, Western Watersheds Project, Northwest Environmental Defense Center, Oregon Wild, Center for Biological diversity, and Friends of Oregon's Living Waters (collectively "ONDA") sued the U.S. Forest Service for failing to comply with Sec. 401 of the Clean Water Act ("CWA") in its issuance of grazing permits on Forest Service lands. ONDA maintained that the outcome and reasoning of S.D. Warren Company v. Main Board of Environmental Protection, 547 US 370 (2006), were clearly irreconcilable with Oregon Natural Desert Assn. v. Dombeck, 172 F.3d 1092 (9th Cir. 1990), and that therefore Dombeck is no longer controlling law. The Forest Service moved for judgment on the pleadings pursuant to Fed. R. of Civ. Proc. 12(c). The mater was referred to a magistrate judge, who made Findings and Recommendations ("F&Rs") suggesting that the district court grant the motion for judgment on the pleadings on the grounds that ONDA's claim was barred by the doctrine of collateral estoppel. The district court adopted the F&Rs and granted the motion for judgment on the pleadings. The USCA affirmed, finding that neither the ruling nor the reasoning of S.D. Warren was inconsistent with the USCA's treatment of non-point sources in CWA Sec. 401, as explained in Dombeck. Accordingly, the principles of stare decisis applied and Dombeck did not need to be revisited. Thompson, Tashima, and M.D. Smith (author), Circuit Judges. D. Becker of Portland, OR, for the plaintiffs-appellants; AAG R. Tenpas of Portland, OR, for the defendant-appellee. .(Download the full text of this decision at www.ce9.uscourts.gov/) 8) TAXATION: Sklar v. CIR, 06-72961 (9th Cir. Dec. 12, 2008). The Sklars appealed a decision of the Tax Court affirming the disallowance of deductions they claimed for tuition and fees paid to their children's Orthodox Jewish day schools. The USCA affirmed. The Tax Court correctly held that neither the Establishment Clause nor principles of administrative consistence allow the Sklars the deductions. In addition, the Tax Court's denial of discovery regarding the Closing Agreement in proceedings involving the deductibility of the tuition and fees was not an abuse of discretion. Pregerson, Wardlaw (author), Circuit Judge, and Leighton, District Judge. J. Zuckerman of Washington, DC, for the petitioners; E. Del Sole of Washington, DC, for the respondent..(Download the full text of this decision at www.ce9.uscourts.gov/) 9) INSURANCE / TAXATION: The Upper Deck Company v. American International Specialty Lines Insurance Company, 07-56070 (9th Cir. Dec. 9, 2008). This appeal arose out of an insurance policy that The Upper Deck Company purchased from American International Specialty Lines Insurance Company ("AISLIC"). The policy insured a tax strategy that KPMG, an accounting firm, developed for Upper Deck. The IRS investigated the strategy and determined that it constituted an improper tax shelter. Upper Deck then settled with the IRS for $80 million in back taxes and interest, and with the California Franchise Tax Board for $17 million in back taxes and interest. After AISLIC rejected Upper Deck's claim that the policy covered the loss incurred as a result of the settlement, Upper Deck and its CEO, Richard McWilliam, filed a complaint in federal district court seeking a declaratory judgment that the policy issued by AISLIC covered the loss. The district court granted AISLIC's motion to compel arbitration. A three-member panel of arbitrators held that Upper Deck and McWilliams were not entitled to coverage because Upper Deck had abandoned the strategy that AIS-LIC had insured. The district court confirmed the arbitration award. On appeal, the USCA affirmed for substantially the same reasons stated in the district court's opinion, except for its discussion of the arbitrators' reliance on the failure of McWilliam to comply with Sec. 9(b) of the policy. The USCA did not reach that issue because it agreed with the district court that the alternative grounds for the arbitrators' award drew their essence from the policy and plausibly interpreted it. Rymer and M.D. Smith, Circuit Judges, and Korman, District Judge. Per Curiam. D. Wahlquist of Costa Mesa, CA, for the plaintiffs-appellants; P. Stroili of New York, NY, and J. Miller of San Diego, CA, for the defendant-appellee. .(Download the full text of this decision at www.ce9.uscourts.gov/) 10) LABOR LAW: International Brotherhood of Electrical workers, AFL-CIO, Local 1245 v. Citizens Telecommunications Company of California, 06-16189 (9th Cir. Dec. 5, 2008). Citizens Telecommunications Company ("Citizens"), and the International Brotherhood of Electrical Workers, AFL-CIO, Local 1245 ("IBEW"), were parties to a Collective Bargaining Agreement ("CBA) in effect from October 2004 through September 2008. The IBEW sought an order compelling Citizens to arbitrate IBEW's claim that Citizens had violated the CBA by reducing employee retirement benefits. The district court granted the motion to compel arbitration. Citizens appealed, arguing that IBEW could not arbitrate its grievance without first obtaining consent from retirees currently eligible for benefits under the CBA. The USCA affirmed. Citizens maintained that a line of cases established a rule that bars unions from arbitrating disputes "relating to retiree benefits" without the consent of affected retirees. While believing that this was a plausible reading of the cases, the USCA declined to adopt such a broad rule. The rule that Citizens would have applied ignored the fact that reductions in retiree benefits may also affect current employees who are undisputedly still represented by the union under an extent CBA, and it is based on unsound assumptions about the preclusive effect of arbitration involving retiree benefits. Schroeder, Walker (author), and N.R. Smith, Circuit Judges. T. Beck of San Francisco, CA, for the appellant; S. Groff of Oakland, CA, for the Union. .(Download the full text of this decision at www.ce9.uscourts.gov/) 11) MORTGAGE INSURANCE / FALSE CLAIMS ACT: USA v. Eghbal, 07-55372 (9th Cir. Dec. 5, 2008). This civil action was brought under the False Claims Act ("FCA"), 31 USC Sec. 3729, et seq., against Eghbal and Trujillo to recover treble damages and civil penalties for their use of false statements to procure home mortgage insurance from the Department of Housing and Urban Development ("HUD"). The defendants appealed from an order of the District Court granting the United States' motion for summary judgment. The USCA affirmed. In the 1990s, the defendants purchases HUD-foreclosed homes and resold them for profit to buyers with mortgage secured loans by HUD. They sold to buyers who lacked sufficient assets to cover the down payment on the properties, and provided the down payment for the buyers by depositing their own personal funds into escrow via cashiers' check. But HUD would not insure a loan for a home for which the down-payment was paid by the seller. To that end, HUD required a seller of a home to sign a document called an Addendum to the HUD-1 Settlement Statement. By signing the Addendum, the seller certified that he had not, and would not, pay the buyer for any part of the down payment, nor did the seller have knowledge of any loans made to the buyer for pur-poses of financing the transaction other than those described in the sales contract. HUD would also not insure a loan without a validly signed Addendum. For each instance in which the provided the down-payment via cashier's check, the defendants fraudulently signed the Addendum, falsely stating that they provided no funds towards the down payment. In total, the defendants sold 200 properties, at least 62 of which defaulted on their HUD insured mortgages. They were criminally charged with making false statements concerning these 62 properties, to which they pled guilty via written plea agreements. A subset of 27 properties was the subject of the instant FCA action. HUD paid out about $2.8 million, representing the balances owing on the 27 defaulted mortgages. Canby and Bybee, Circuit Judges, and Quackenbush (author), District Judge. L. Ecoff of Beverly Hills, CA, for the appellants; S. Frank of Washington, DC, for the appellee. .(Download the full text of this decision at www.ce9.uscourts.gov/) 12) FALSE CLAIMS ACT: USA v. Community Home and Health Care Services, Inc., 07-56060 (9th Cir. Dec. 16, 2008). On a question of first impression, the USCA concluded that an order granting summary judgment is final and appealable under 28 USC Sec. 1291 even though the district court retained jurisdiction over a pending claim by a qui tam relator for a share of the award under the False Claims Act, 31 USC Sec. 3730(d). The judgment on the merits of an False Claims Act claim is a separate, final, and appealable decision even where the district court has retained jurisdiction over the collateral issues of allocating the FCA award between the United States an the relator. Bright, Trott, and Hawkins (author), Circuit Judges. J. Clair of Washington, DC, for the plaintiffs-appellants; E. Olson of Glendale, CA, for the defendants-appellees..(Download the full text of this decision at www.ce9.uscourts.gov/) 13) RAILWAY RIGHT OF WAYS: Avista Corporation
v. Wolfe, 07-35321 (9th Cir. Dec. 11, 2008). At issue here was
whether a court may retroactively declare a railroad right of way abandoned under
the Abandoned Railway Right of Way Act. The USCA con-cluded that the Act does
not permit a nunc pro tunc abandonment declaration. Kozinski, Reinhardt, and Thomas
(author), Circuit Judges. C. Nygren of Missoula, MT, for the appellant;
G. Schultz of Missoula, MT, and R. Zimmerman of Thompson Falls, MT, for the appellees.
.(Download the full text of this decision
at www.ce9.uscourts.gov/) 15) LOAN FEES: Davis v. Pacific Capital
Bank, 07-56236 (9th Cir. Dec. 24, 2008). At issue here was whether a creditor
who imposes a flat finance charge that does not vary with the terms of a Refund
Anticipation Loan must refund a portion of the charge as "un-earned interest"
under 15 USC Sec. 1615. Finding that the finance charge is not an "interest"
charge, the USCA affirmed. Davis brought this action for herself and others similarly
situated against Pacific Capital Bank ("Pacific") under California's
Unfair Competition Law, Cal. Bus. & Prof. Code Sec. 17200. She alleged that
she obtained a Refund Anticipation Loan secured by her anticipated federal income
tax refund, which she authorized the IRS to deposit into an account established
by Pacific. The loan documents, attached as an exhibit to Davis's complaint, provided
that $1,115 was credited to Davis, the credit would cost $85, the Annual Percentage
Rate "cost of credit at a yearly rate" was 57.969%, and that one payment
of $1,200 would be due 48 days after Pacific approved the loan. Loan document
provided that, if Davis repaid the loan early, she would not be entitled to a
refund of any part of the $85 finance charge, but the loan document did not require
Davis to pay any additional finance charges if she rapid the loan after the anticipated
48 day period. Davis alleged her refund was deposited ten days earlier than anticipated
in the loan agreement, and, as a consequence, Pacific's failure to refund a $17.74
pro-rated portion of her finance charge was "unlawful" or "unfair"
because Sec. 1615 requires Pacific to refund unearned "interest." The
district court dismissed Davis's complaint with prejudice, holding that the $85
finance charge was not interest. Bright, Trott, and Hawkins (author), Circuit
Judges. J. Lewis of Minneapolis, Minn., for the appellant; B. Seiling of Los Angeles,
CA, for the appellee. .(Download the full text of this decision
at www.ce9.uscourts.gov/) 17) TORTS: Marley v. USA, 06-36003 (9th Cir. Dec. 8, 2008). At issue here was whether the statute of limitations in Sec. 2401(b) of the Federal Tort Claims Act is jurisdictional and, in turn, whether courts can employ the doctrines of equitable estoppel or equitable tolling to extend the limitations period. The USCA held that the statute is jurisdictional and, consequently, that the doctrines of equitable estoppel and equitable tolling do not apply. The USCA thus dismissed the plaintiff's claim for lack of subject matter jurisdiction. Graber (author) and Rawlinson, Circuit Judges, and Wright, District Judge. M. King of Tukwila, WA, for the plaintiff-appellant; AUSA B. Kipnis of Tacoma, WA, for the defendant-appellee. .(Download the full text of this decision at www.ce9.uscourts.gov/) 18) ALIEN TORT STATUTE: Sarie v. Rio Tinto, PLC, 02-56256 (9th Cir. Dec. 16, 2008). Current and former residents of Bou-gainville, Papua New Guinea ("PNG"), brought suit under the Alien Tort Statute ("ATS"), claiming that various war crimes, crimes against humanity, racial discrimination, and environmental torts arose out of Rio Tinto's mining operations on Bougainville. The plain-tiffs alleged that Rio Tinto is liable not only for its actions that led to a civil war, but also vicariously for those of the PNG government, as Rio Tinto's agent or partner. The USCA remanded the action to the district court to consider whether this is a case in which prudential exhaustion analysis should be applied, and if so, whether the plaintiffs should be required to exhaust their remedies in PNG before proceeding further in the district court. Judge Bea, joined by Judge Callahan, concurred in the plurality's conclusion that the district court erred by failing to conduct an exhaustion analysis, and that a limited remand is the preferable solution. However, Judge Bea thought that the ATS, and not mere judicial prudence, requires the district court to consider exhaustion. Judge Ikuta, joined by Judge Kleinfeld, dissented. He would affirm the dismissal of this case on the ground that the USCA lacked subject matter jurisdiction. Rather than return the case to the district court for consideration of the discretionary preliminary issue, Judge Ikuta would affirm the dismissal on the ground that the USCA exceeded the authority granted by Congress and the limits imposed by the Constitution's separation of powers by applying the ATS to a dispute not involving U.S. territory or citizens. Judge Kleinfeld concurred in the result reached by the plurality opinion, limited remand for consideration of whether exhaustion should be required. He did so because the thought the USCA must provide some clear direction to the district court, and only a result adopted by a majority can do so. He added that in his view, Judge Ikuta's dissent was correct and joined it fully. Even so, he noted that failure to exhaust is an additional reason for dismissal and need not conflict with the reason for dismissal state by Judge Ikuta. Judge Reinhardt, joined by Judges Pregerson, Berzon and Rawlinson, noted that neither the Supreme Court nor any circuit court has ever imposed an exhaustion requirement, prudential or otherwise, on a case brought under the ATS. Because he did not think that the Supreme Court "counseled" the adoption of such a requirement, that there is anything about the case that makes it "an appropriate case" in which to consider doing to, or that an exhaustion analysis should be required in ATS cases where Congress had not included such a requirement in the statute, Judge Reinhardt dissented. Schroeder, Pregerson, Reinhardt (dissenting), Kleinfeld (concurring), Silverman, McKeown (author), Berzon, Rawlinson, Callahan, Bea (concurring), and Ikuta (dissenting), Circuit Judges. S. Berman of Seattle, WA, for the plaintiffs-appellants; J. Brosnahan of San Francisco, CA, for the defendants-appellees. .(Download the full text of this decision at www.ce9.uscourts.gov/) 19) REMOVAL: United Steel, Paper & Forest, Robber Manufacturing Energy, Allied Industrial & Service Workers International Union v. Shell Oil Company, 08-56672 (9th Cir. Dec. 9, 2008). United Steel, Richard Floyd, and Eduardo Carbejal, individually and on behalf of similarly situated current and former employees (collectively "United Steel Workers"), filed a class action against Shell Oil Company, Equilon Enterprises, and Tesoro Refining and Marketing Company in California state court. Shell Oil and Equilon (collectively "Shell") filed a notice of removal to the federal district court. Tesoro filed a separate notice of removal. As a basis of jurisdiction, both notices of removal relied, in part, on the Class Acton Fairness Act of 2005, 28 USC Secs. 1332(d) and 1453. After opening two separate cases, the district court remanded Shell's case on the ground that Tesoro filed to consent to removal within 30 days of service on the first served defendant, and then remanded Tesoro's case for the same reason. Shell and Tesoro filed separate petitions for permission to appeal, which the USCA granted. The USCA then reversed the district court's orders remanding to state court. Under Sec. 1453(b), Shell's timely notice of removal effected removal of the entire action, including the claims against Tesoro. Bright, Trott (author), and Hawkins, Circuit Judges. D. Ballesteros and T. Rusche of Los Angeles, CA, for the appellant; R. Cantore of Los Angeles, CA, for the appellees. .(Download the full text of this decision at www.ce9.uscourts.gov/) 20) ADMINISTRATIVE LAW: Andrzejewski v. Federal Aviation Administration, 06-75730 (9th Cir. Dec. 3, 2008). Andrze-jewski, a 22-year-old pilot, petitioned for review of an order of the National Transportation Safety Board ("NTSB") reversing a deci-sion of an Administrative Law Judge ("ALJ"). Following a hearing, the ALJ found in Andrzejewski's favor and reversed a Federal Aviation Administration ("FAA") Emergency Order of Revocation, handed down without a hearing, which revoked Andrzejewski's commercial pilot's license on the ground that she had performed aerobatic maneuvers too close to the ground-indeed during take-off-in violation of 14 CFR Sec. 91.303(e). The USCA granted Andrzejewski's petition and remanded to the NTSB. The NTSB's failure to give the ALJ's implicit credibility determination the requisite level of deference was contrary to NTSB precedent and, thus, arbitrary and capricious. Because the NTSB incorrectly concluded that the ALJ's decision was not based on an implicit credibility determination, however, the NTSB has not yet addressed whether there existed a "compelling reason" to reverse the ALJ's credibility finding or whether the finding was "clearly erroneous." The USCA thus remanded to the NTSB to make these determinations in the first instance. O'Scannlain, Gould, and Bea (author), Circuit Judges. K. Yodice of Washington, DC, for the petitioner; J. Berry of Washington, DC, for the respondent. .(Download the full text of this decision at www.ce9.uscourts.gov/) 21) GUN CONTROL ACT: The General Store v. Van Loan, 07-35417 (9th Cir. Dec. 31, 2008). The General Store appealed the district court's grant of summary judgment upholding the revocation of its federal firearms dealer license for willful violations of fed-eral and state firearms laws. At issue was the definition of "willfully" in the Gun Control Act of 1968, 18 USC Secs. 921-930. The General Store maintained that its admitted violations of 27 CFR Sec. 478.125(e) and 18 USC Sec. 922(b)(2) were not "willful" and thus could not be a basis for revocation of its firearms license. Although the USCA affirmed the district court's decision that both vio-lations were willful, one willful violation would have been sufficient, as a single willful violation is grounds for upholding the revocation. The regulation requires licensed firearms dealers to "enter into a record each receipt and disposition of firearms." The General Store admitted that it violated this requirement by failing to record firearms obtained and transferred for repair in its Acquisition and Disposition Record. The General Store argued that these violations were not willful because it made a good faith effort to follow ambiguous instructions received from the ATF. However, the USCA found that the instructions were not as ambiguous as the General Store had argued. Following inspections in 2000 and 2001, the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") cited The General Store for violations of Sec. 478.125(e). Both citations instructed The General Store to record acquisitions and dispositions of firearms for repair "as required by the Gun Control Act" with reference to Sec. 478.125(e), which contains specific instructions on what information must be recorded. Nothing was unclear in the citations. The USCA thus affirmed. Silverman, McKeown (author), and Berzon, Circuit Judges. R. Gardiner of Fairfax, VA, for the appellant; AUSA R. Tangvald of Spokane, WA, for the appellee. .(Download the full text of this decision at www.ce9.uscourts.gov/) 22) FIRST AMENDMENT: Dietrich v. John Ascuaga's Nugget, 06-17135 (9th Cir. Dec. 1, 2008). Plaintiff Dietrich, sought to set up a table to register voters and gather signatures for a political petition within an area reserved for an unrelated event, the West Nugget Rib Cook-Off. Police Officer Cardella ordered Dietrich to move to another location, under threat of arrest if she refused to do so. After 30 minutes at the new location she left, but quickly contacted the American Civil Liberties Union and one of the Cook-Off organizers. As a result, she was allowed by the event's organizer to return the next morning and to conduct her political activities for the remaining days of the event at the original location and a second satisfactory location. On the third day, however, a second police offi-cer, Officer Potter, cited her for a traffic violation, allegedly in retaliation for publicity about her first-day activities in a local newspaper. Dietrich filed suit under Sec. 42 USC Sec. 1983, alleging violations of her First Amendment rights to free speech and naming as defendants the police officers, the event's organizers, the City of Sparks, Nevada, and its police department. The district court held that no constitutional violations had occurred and granted summary judgment to all defendants. The USCA affirmed in part, reversed in part, and remanded for further proceedings. It held that no reasonable juror could find from the undisputed facts that the defendants acted in retaliation for Dietrich's First Amendment activities when Potter gave her a traffic citation. The USCA thus affirmed the district court's summary judgment to all defendants on that claim. But, it reversed summary judgment in favor of Cardella concerning his coerced removal of Dietrich to an alternative location. It remanded that claim for the district court to determine, in the first instance, whether Cardella was protected by qualified immunity or whether, instead, factual issues remained for trial. The USCA upheld the summary judgment in favor of other defendants. Wallace and Graber (author), Circuit Judges, and Timlin, District Judge. M. Crowley of Reno, NV, for the plaintiff-appellant; S. Brown of Reno, NV, for the defendants-appellees. .(Download the full text of this decision at www.ce9.uscourts.gov/) 23) FREE SPEECH / PARADE PERMITS: Seattle Affiliate of the October 22nd Coalition to Stop Police Brutality v. City of Seattle, 06-35597 (9th Cir. Dec. 12, 2008). At issue here was a conflict between those who wished to conduct a parade on Seattle streets and the city's interests in traffic safety. Seattle by ordinance gives its police chief, when issuing a parade permit, the discretion to require marchers to use the sidewalks instead of the streets. The issue here thus became whether the ordinance violates the free speech guarantees of the First Amendment because on its face it impermissibly grants the licensing officials unduly broad discretion. The USCA held that the ordinance by its terms gives the chief unbridled discretion to force marchers off the streets and onto the side-walks, unchecked by any requirement to explain the reasons for doing so or to provide some forum for appealing the chief's decision. It thus found the parade ordinance to be facially unconstitutional. Dissenting, Judge Ikuta found the ordinance to be an ordinary contentneutral time, place, and manner restrictions that does not vest unbridled discretion in the chief of police. He dissented from the majority's ruling that it is facially invalid under the First Amendment. Fisher (author), Gould, and Ikuta (dissenting), Circuit Judges. M. Ryan of Seattle, WA, for the plaintiff-appellant; C. Seu of Seattle, WA, for the defendants-appellees. .(Download the full text of this decision at www.ce9.uscourts.gov/) 24) EXIT POLLS / FREEDOM OF SPEECH / ATTORNEYS' FEES: American Broadcasting Companies v. Miller, 07-15227 (9th Cir. Dec. 12, 2008). Six media corporations filed a civil rights suit against the Nevada Secretary of State pursuant to 42 USC Sec. 1983, seeking declaratory and injunctive relief allowing them to conduct exit polling in the November 2006 general election. They argued that Sec. 293.740 of the Nevada Revised Statutes impermissibly restricts their free speech rights in violation of the First and Fourteenth Amendments, respectively, by making it unlawful for any person to speak to a voter on the subject of marking his or her ballot within 100 feet of a polling place's entrance. The district court granted the plaintiffs' motion for a preliminary injunction and enjoined the Nevada Secretary of State from prohibiting the media corporations' exit polling activities. The district court subsequently granted them a permanent injunction. Thereafter the plaintiffs sought attorneys' fees pursuant to 42 USC Sec. 1988(b). The district court denied the request for fees, noting only that "special circumstances exist in this case similar to those presented in Thorsted v. Munro, 75 F.3d 454 (9th Cir. 1996), which warrant the exercise of this Court discretion to deny Plaintiffs' Motion." The USCA reversed and remanded to the district court for its analysis pursuant to Mendez v. County of San Bernardino, 540 F.3d 1109 (9th Cir. 2008), and for the entry of findings consistent with Sethy v. Alameda County Water Dist., 602 F.2d 894 (9th Cir. 1979) (per curiam). The district court's ruling failed to identify the special circumstances rendering the award unjust. It also erred in its reliance on Thorsted, a decision the USCA had already restricted as based on factors "largely unique to that case." Democratic Party v. Reed, 388 F.3d 1281, 1285 (9th Cir. 2004). Rather than apply the Thorsted factors, the USCA uses a two-prong test to determine whether special circumstances exist to justify denying attorneys' fees, namely whether: (1) awarding the fees would further the purposes of Sec. 1988; and (2) the balance of equities favors or disfavors the denial of fees. When employing this test, the USCA has stressed that attorneys' fees should be denied only in unusual cases, such as when there is both a strong likelihood of success on the merits and a strong likelihood of a substantial judgment at the outset of litigation. Mendez, 540 F.3d at 1126. Wallace, Thomas, and Graber, Circuit Judges. Per Curiam. J.C. Williams of Las Vegas, NV, for the plaintiffs-appellants; DAG N. Nguyen of Carson City, NV, for the defendant-appellees..(Download the full text of this decision at www.ce9.uscourts.gov/) 25) SOCIAL SECURITY: Sam v. Astrue, 08-35108 (9th Cir. Dec. 15, 2008). Sam, who suffers from a degenerative condition af-fecting his cervical spine, appealed the district court's affirmance of an order of an Administrative Law Judge ("ALJ") denying him disability insurance benefits under Title II of the Social Security Act. The ALJ found Sam ineligible for benefits because he was not disabled on or before the date he was last insured, March 31, 1997. Sam argued that the ALJ was required by Social Security Ruling 83-20 (1983) to utilize a medical expert to infer the onset date of his current condition in order to determine whether that condition arose during the time he was eligible for disability insurance benefits. The USCA held that Ruling 83-20 does not require a medical expert where an ALJ explicitly finds that the claimant has never been disabled, and thus affirmed the denial of benefits. D.W. Nelson, Tashima, and Fisher, Circuit Judges. Per Curiam. P. Eaglin of Fairbanks, AK, for the appellant; T. Shea of Seattle, WA, for the appellee. .(Download the full text of this decision at www.ce9.uscourts.gov/) 26) INDIVIDUALS WITH DISABILITIES EDUCATION ACT: JG v. Douglas County School District, 06-17380 (9th Cir. Dec. 24, 2008). This case arose out of the Individuals with Disabilities Education Act ("IDEA") and Rehabilitation Act claims of twins, JG and NG, who have autism, and of there parents (collectively "appellants"). The claims arose out of the school district's delay in notify-ing the twins' parents that it would evaluate the twins for disabilities; from the amount of time it took the school district to diagnose them with autism; from the challenges that confronted the schools district in its implementation of an Individualized Education Program ("IEP") for the twins; and from the school district's alleged discrimination against the twins by segregating them into a preschool for developmentally delayed youngsters. The USCA held that the appellants had not properly presented their claims to the district court. The school district had no notice that the appellants considered the twins' placement discriminatory. The USCA thus vacated the order granting the school district summary judgment and held that the claims should have been dismissed without prejudice for lack of jurisdiction. The USCA also reversed the district court's decision reducing the reimbursement for evaluations and affirmed the district court's decision on all other IDEA claims and on the motion to strike. Finally, it vacated the district court's opinion on the appellants' Rehabilitation Act claims, and remanded with instructions that the district court dismiss that claim without prejudice for lack of juris-diction. Judge Bea concurred in the majority's disposition of the appellants' claims under the IDEA. However, because he did not think the IDEA's exhaustion requirements barred them from pursuing their claims under Sec. 504 of the Rehabilitation Act, he dissented from the majority's holding that the district court lacked jurisdiction to hear these claims. Judge Bea would instead affirm the district court's order granting summary judgment in favor of the appellee. O'Scannlain, Gould (author), and Bea (concurring), Circuit Judges. J. Belcove-Jalin of Las Vegas, NV, for the appellants; J. Hales of Minden, NV, for the appellee..(Download the full text of this decision at www.ce9.uscourts.gov/) 27) AMERICANS WITH DISABILITIES ACT: USA v. AMC Entertainment, Inc., 06-55390 (9th Cir. Dec. 5, 2008). In this action the U.S. Dept. of Justice sought to enforce Title III of the Americans with Disabilities Act ("ADA") so as to require AMC Enter-tainment and American Multi-Cinema (collectively "AMC") to provide "full and equal enjoyment" to disabled moviegoers in 96 sta-dium-style multiplexes across the nation. The Standards for Accessible Design, 28 CFR p. 36, app. A. Sec. 4.33.3, requires that theaters provide "a viewing angle for wheelchair seating within the range of angles offered to the general public in the stadium-style seats." The District court held that AMC's existing facilities violated Sec. 433.3's line of sight requirement, awarded summary judgment to the government, and subsequently issued a comprehensive remedial order. The order set forth a series of detailed injunctive orders specifying compliance with Sec. 433.3 for the 96 affected AMC multiplexes containing 1,993 auditoria throughout the nation. AMC appealed. However, the USCA found that because the injunction required modifications to multiplexes that were designed or built be-fore the government gave fair notice of its interpretation of Sec. 4.33.3, the injunction violated due process-and to that extent, its is-suance was an abuse of discretion. A two-judge majority of the panel also held that the district court abused its discretion in neglecting comity concerns pertaining to the Fifth Circuit's existing, less stringent interpretation of Sec. 4.33.3, while the dissenting judge would affirm the scope of the nationwide injunction. The USCA reversed and remanded for (1) a determination of the precise date on which AMC received fair notice and (2) modification of the remedial order consistent with due process and comity requirements. Judge Wardlaw (author of Parts I, II.A., II.B, and III, in which Judges Bea and N.R. Smith joined); N.R. Smith (author of Part II.C, in which Judge Bea joined); Judge Wardlaw dissented as to Part II.C. L. Franze of Los Angeles, CA, for the defendants-appellants; G. Friel of Washington, DC, for the plaintiff-appellee. .(Download the full text of this decision at www.ce9.uscourts.gov/) 28) CIVIL RIGHTS: Tennison v. City and County of San Francisco, 06-15426 (9th Cir. Dec. 8, 2008). Tennison and Goff (collectively "plaintiffs") served nearly 13 years in state prison for a murder for which both have been declared factually innocent by the courts. They were both released from custody after the federal district court granted Tennison's habeas corpus petition. Following their release, they filed complaints under 42 USC Sec. 1983, alleging that San Francisco Police Department ("SFPD") homicide inspectors Sanders and Hendrix (together "Inspectors") withheld exculpatory evidence and manufactured and presented perjured testimony during the investigation and prosecution of the plaintiffs for the murder of Roderick Shannon. The Inspectors appealed the district court's partial denial of their motion for summary judgment on the basis of absolute and/or qualified immunity. With respect to the plaintiff's Brady claims against the Inspectors, the district court first rejected the Inspectors' argument that the plaintiffs need to establish that the Inspectors acted in bad faith in withholding a confession to the murder by Lovinsky Ricard. The district court then denied the Inspectors' motion for summary judgment with respect to a confession by Ricard and an interview of witness Chante Smith on absolute immunity and qualified immunity grounds, and held that disputed facts regarding a Secret Witness Program precluded summary judgment on the basis of qualified immunity. The USCA affirmed in all respects. Hawkins, Tashima (author), and Thomas, Circuit Judges. J. Quadra of San Francisco, CA, for the defendants-appellants; E. Peters and J. Scott of San Francisco, CA, for the plaintiffs-appellees. .(Download the full text of this decision at www.ce9.uscourts.gov/) 29) DUE PROCESS / SEX OFFENDERS: Carver v. Lehman, 06-35176 (9th Cir. Dec. 22, 2008). At issue here was whether a Washington state law providing for convicted sex offenders' early release into community custody creates a liberty interest that is pro-tected under the Due Process Clause of the Fourteenth Amendment. The USCA held that it did not and thus affirmed the decision of the district court denying Carver relief in his civil rights action. While concurring in the judgment, Judge Reinhardt nevertheless wrote in strong disagreement with the majority's constitutional analysis. Reinhardt (concurring), Tallman, and M.D. Smith (author), Circuit Judges. R. McKenna of Olympia, WA, for the defendants-appellees; T. Baker of Mountain View, CA, for the plaintiff-appellant..(Download the full text of this decision at www.ce9.uscourts.gov/) 30) CIVIL RIGHTS: McCown v. City of Fontana, 07-55896 (9th Cir. Dec. 24, 2008). McCown sued the City of Fontana, its police department, Jorge Rodriguez and David Maxson (collectively the "city") alleging violations of 42 USC Sec. 1983, including wrongful detention, false arrest, and use of excessive force in connection with his arrest. After most of his claims were dismissed on summary judgment, the parties settled McCown's remaining claim for $20,000, not including attorneys' fees. They stipulated in the settlement agreement that McCown was the prevailing party under 42 USC Sec. 1988, and that the district court would determine the appropriate amount of fees and costs. The district court granted McCown attorneys' fees in the amount of $200,000, plus $15,034 in costs. The city then appealed that award. The USCA reversed, finding that the district court erred, both in failing to adequately explain its reasons for the award it granted to McCown, and in granting excessive attorneys' fees and costs in light of McCown's limited success. It remanded for the district court to reconsider the issue of attorneys' fees and costs in light if the USCA's opinion. Rymer and M.D. Smith (author), Circuit Judges, and Korman, District Judge. S.F. Harrell of Orange, CA, for the appellants; J. Schlueter of San Bernardino, CA, for the appellee. .(Download the full text of this decision at www.ce9.uscourts.gov/) 31) IMMIGRATION: Love Korean Church v. Chertoff, 07-55093 (9th Cir. Dec. 5, 2008). Love Korean Church appealed an order of the district court affirming the Bureau of Citizenship and Immigration Services ("CIS") revocation of a visa petition filed by the Church on behalf of its choir director. The Church sought to have its choir director, a Korea citizen, classified as a "special immigrant" religious worker within the meaning of 8 USC Sec. 1101(a)(27)(C). Because the revocation of the visa petition was predicated on legal error and findings of fact unsupported by substantial evidence, the USCA vacated the judgment of the district court and remanded the case for further consideration by the CIS. The Administrative Appeals Office ("AAO") dismissal of the Church's appeal rested on an interpretation of 8 CFR Sec. 204.5(m)(2) that was inconsistent with the regulation, and on factual findings that were unsupported by substantial evidence. Reconsiderations of the AAO's regulatory interpretation and requires reconsideration of its application of the two-year experience requirement set forth in 8 USC Sec. 1101(a)(27)(C)(iii). Canby (author), Bybee, and M.D. Smith, Circuit Judges. R. Kim of Los Angeles CA, for the plaintiffs-appellants; AUSA K. Staub of Los Angeles, CA, for the defendants-appellees. .(Download the full text of this decision at www.ce9.uscourts.gov/) 32) IMMIGRATION: Renteria-Morales v. Mukasey, 04-74742 (9th Cir. Dec. 12, 2008). (The opinion filed July 10, 2008 in this case has been withdrawn and replaced by this decision.) The petitions for review of Irma Renteria-Morales and Maria Jesus Rivera de Alvarado were consolidated on appeal. They raised the question whether a conviction for failure to appear in court in violation of 18 USC Sec. 3146 is an aggravated felony as defined by 8 USC Sec. 1101(a)(43)(S) and (T). Applying the categorical approach of Taylor v. USA, 495 US 575, 600-02 (1990), the USCA held that a violation of Sec. 3146 qualifies as the generic crime of "obstruction of jus-tice" under Sec. 1101(a)(43)(S) but does not qualify as the generic crime of "failure to appear" under Sec. 1101(a)(43)(T). The USCA also held that a petitioner's prior conviction qualifies as an aggravated felony under Sec. 1101(a)(43)(S) only if the petitioner has been sentenced to a term of imprisonment of "at least one year." The USCA thus concluded that the Immigration Judge ("IJ") and the Board of Immigration Appeals ("BIA") correctly deemed Rivera's prior convicton an aggravated felony under Sec. 1101(a)(43)(S), but the IJ incorrectly deemed Renteria's prior conviction to be an aggravated felony under Sec. 1101(a)(43) (T). Renteria's petition was granted, and Rivera's denied. Judge Tallman dissented from the majority's conclusion that under the modified categorical approach Renteria's conviction for bail jumping did not meet the elements of an aggravated felony as set forth in 8 USC Sec. 1101(a)(43)(T). Because, Judge Tallman thought, the court's holding was based on a fundamental misunderstanding of Federal criminal procedure regarding mandatory conditions imposed on release from custody, and because the charging language of the bail jumping information compels the opposite conclusion, he would denied Renteria's petition for review. However, he concurred in the remainder of the majority's opinion. Thomas, Tallman (dissenting in part), and Ikuta (author), Circuit Judges. M. Guajardo and C. Dvorkin of San Francisco, CA, for the petitioners; M. Golding of Washington, DC, for the respondent. .(Download the full text of this decision at www.ce9.uscourts.gov/) 33) IMMIGRATION: Salazar-Luviano v. Mukasey, 07-70505 (9th Cir. Dec. 23, 2008). At issue here was whether aiding and abetting an attempted escape from custody is an "obstruction of justice" crime, and thus an aggravated felony within the meaning of the Immigration and Nationality Act ("INA") Sec. 101(a)(43)(S). The petitioner argued that it is not and that he is thus eligible for cancel-lation of removal under INA Sec. 240(a). The USCA agreed, granted his petition for review, and remanded to the BIA for considera-tion of his request for cancellation of removal. Bright, Hawkins (author), and Tashima, Circuit Judges. D. Schlesinger of San Diego, CA, for the petitioner; C. Winston of Washington, DC, for the respondent. .(Download the full text of this decision at www.ce9.uscourts.gov/) 34) IMMIGRATION: Valencia v. Mukasey, 04-76571 (9th Cir. Dec. 4, 2008). Valencia appealed the BIA's decision affirming her order of removal on the basis of a 1984 California conviction for transporting heroin. At issue was whether the Immigration Judge ("IJ") was required as a matter of due process to advise her of a "right" to apply for asylum, even though, on the basis of the evidence presented in the record, there was no plausible basis for such an application. The USCA denied the petition and joined the Fifth Circuit in holding that there is no requirement that an alien be advised of the availability of relief from deportation where there is no apparent eligibility to receive it. Ramirez-Osorio v. INS, 745 F.2d 937, 938 (5th Cir. 1984). The USCA noted that the resources of the agencies charged with the administration of immigration laws are limited and severely taxed. Indeed, Congress has acted to deter the filing of applications that lack merit. If an application is deemed to be so meritless as to be "frivolous," an alien may be permanently ineligible for benefits under the Immigration and Nationality Act, 8 USC Sec. 1158(d)(6). Thus, if an IJ were required to advise of all possible ways of obtaining relief from deportation, and if an alien, acting upon such notice, were to file a frivolous application, the application could not only add needless administrative burdens to the immigration system, but result in a frivolousness determination that would leave the alien in a worse position than if there had been no notice. Due process, which at its core means fairness, cannot require such a result. Schroeder (author) and Rawlinson, Circuit Judges, and Sandoval, District Judge. S. Nalbandian of Valley Village, CA, for the petitioner; M. Sarko of Washington, DC, for the respondent. .(Download the full text of this decision at www.ce9.uscourts.gov/) 35) IMMIGRATION: Aguilera-Montero v. Mukasey, 06-72956 (9th Cir. Dec. 1, 2008). The petitioner sought review of the BIA's dismissal of his appeal for a denial of his application for adjustment of status. He maintained that he was entitled to a waiver of deportability pursuant to 8 USC Sec. 1227 because of a full and unconditional state pardon. In addition, he maintained that the availability of a pardon-based waiver pursuant to Sec. 1227 violates the equal protection rights of inadmissible aliens, who are not entitled to such a waiver under 8 USC Sec. 1182. The USCA denied the petition for review. Because the petitioner was an inadmissible alien and there was no statutory basis to waive his inadmissibility, he could not adjust his status to that of a lawful permanent resident. Neither his state pardon nor his equal protection claim change the fact that Congress has expressly declined to provide a waiver for an inadmissible alien convicted of a crime relating to a controlled substance. Graber and Rawlinson (author), Circuit Judges, and Wright, District Judge. R. Pritchett of Bellingham, WA, for the petitioner; M.J. Wright of Washington, DC, for the respondent. .(Download the full text of this decision at www.ce9.uscourts.gov/) 36) HABEAS CORPUS: Sechrest v. Ignacio, 04-99004, (9th Cir. Dec. 5, 2008). In this pre-AEDPA capital case, Sechrest appealed the denial of his third amended petition for a writ of habeas corpus under 28 USC Sec. 2254. The USCA affirmed in part, reversed in part, and remanded for further proceedings. With respect to the penalty phase, the USCA held that Sechrest's Sixth and Fourteenth Amendment right to a fair trial was violated by the prosecutor's gross misconduct. It also held that Sechrest's Sixth Amendment right to effective assistance of counsel was violated when his trial attorney allowed Dr. Gerow to testify for the prosecution. Because it did not find either of these constitutional violations harmless, it reversed the district court as to Sechrest's sentence. With respect to the guilt phase, the USCA held that Sechrest's Miranda rights were not violated, and affirmed the district court on that ground. It also held, however, that Sechrest's previously defaulted claims-which included both guilt and penalty phase claims-should not have been bared from federal habeas review. It remanded these claims to the district court for appropriate consideration. The USCA instructed that, should the district court deny or dismiss Sechrest's guilt phase claims after appropriate and timely consideration, the district court should issue a writ of habeas corpus to the death sentence unless, within a reasonable time, the State grants a new penalty phase trial or imposes a lesser sentence consistent with the law. It also instructed the district court to order Sechrest removed from death row during the pendency of the proceedings. Pregerson (author), W. Fletcher, and Berzon, Circuit Judges. F. Forsman of Las Vegas, NV, for the petitioner; G. Chanos of Reno, NV, for the respondent. .(Download the full text of this decision at www.ce9.uscourts.gov/) 37) HABEAS CORPUS: Chambers v. McDaniel, 07-15773 (9th Cir. Dec. 9, 2008). Chambers appealed the district court's denial of his second amended habeas petition, brought under 28 USC Sec. 2254, which challenged his conviction for murder in the first degree and his sentence of two consecutive sentences of life without the possibility of parole by a Nevada state trial court. The USCA held that Chambers' federal constitutional right to due process had been violated because the instructions given at his trial permitted the jury to convict him of first-degree murder without a finding of the essential element of deliberation. This error was not harmless. The USCA thus reversed and remanded to the district court to grant the writ unless the state elects to retry Chambers within a reasonable time. Wallace (dissenting) and Graber, Circuit Judges, and Timlin (author), District Judge. AFPD L. Bell of Las Vegas, NV, for the petitioner; DAG R. Wieland of Reno, NV, for the respondent..(Download the full text of this decision at www.ce9.uscourts.gov/) 38) HABEAS CORPUS: Gonzales. v. Duncan, 06-56523 (9th Cir. Dec. 30, 2008). Gonzales was convicted by a jury of failing to update his annual sex offender registration within five working days of his birthday, in violation of California Penal Code Sec. 290(a)(1)(D). Due to his prior criminal convictions, he received a sentence of 28 years to life imprisonment under California's "Three Strikes" law. At issue on habeas review was whether his sentence violates the Eighth Amendment's prohibition against cruel and unusual punishment and if so, whether the contrary conclusion of the California Court of Appeals constitutes an unreasonable application of clearly established federal law. The USCA reversed and remanded. The disparity between Gonzales's technical violation of a regulatory crime of omission and the 28 years to life sentence imposed was so extreme that the state court could uphold the constitutionality of the sentence only be reading the "grossly disproportionate" standard out of federal law. The USCA agreed with the conclusion of People v. Carmony, 26 Cal. Rptr. 3d 365, 374 (Cal. Ct. App. 2005) that it is beyond dispute that a life sentence is grossly disproportionate to the technical failure to register. The state court's application of the gross disproportionality principle, clearly established by Solem v. Helm, 463 US 277 (1983), and reaffirmed by Lockyer v. Andrade, 538 US 63 (2003), was objectively unreasonable. Canby, Kleinfeld, and Bybee (author), Circuit Judges. DFPD G. Kim of Los Angeles, CA, for the petitioner; AAG D. Gillette of Los Angeles, CA, for the respondent..(Download the full text of this decision at www.ce9.uscourts.gov/) MEMORANDA
1) SECURITIES: Saeger v. Pacific Life Insurance Company, 07-55966 (9th Cir. Dec. 31, 2008) (unpublished). The plaintiff, Saeger, appealed the district court's grant of summary judgment in favor of defendant Pacific Life Insurance Company in his Rule 10b-5 lawsuit. He also appealed the court's denial, as moot, of his motion for class certification. Saeger maintained that the district court erred in finding no triable issues of fact with respect to any of the elements of securities fraud. The USCA noted that it did not need to look further than the issue of materiality to affirm the district court's ruling. The plaintiff presented no evidence that the description of the federal tax charge was material, even assuming arguendo that the description was imprecise. Summary judgment is appropriate where because the utter lack of materiality is so obvious that reasonable minds could not differ. Provenz v. Miller, 102 F.3d 1478, 1489 (9th Cir. 1996). Because it affirmed on materiality grounds, the USCA did not address other grounds for the district court's sum-mary judgment ruling. The plaintiff also argued that the district court should have ruled on his motion for class certification before addressing the defendant's motion for summary judgment. However, the Circuit has previously held that "under the proper circumstances-where it is more practicable to do so and where the parties will not suffer significant prejudice-the district court has discretion to rule on a motion for summary judgment before it decides the certification issues." Wright v. Schock, 742 F.2d 541, 543-44 (9th Cir. 1984). Saeger did not allege that he was prejudiced by the action. Noonan and Silverman, Circuit Judges, and Conlon, District Judge. .(Download the full text of this decision at www.ce9.uscourts.gov/) 2) SECURITIES: Shurkin v. Golden State Vintner, 07-15762 (9th Cir. Dec. 11, 2008) (unpublished). Shurkin appealed the dis-missal of his securities fraud class action complaint alleging violations of Sec. 10(b), 20(A), and 20(a) of the Securities and Exchange Act of 1934 and of Rule 10b-5 promulgated thereunder. This case turned on Shurkin's ability to plead falsity and scienter with respect to a Dec. 23, 2003 proxy statement and a Jan. 20, 2004 press release Golden State Vintner ("GSV") issued to its shareholders. The USCA agreed with the district court's determination that Shurkin has failed to plead these necessary elements of a securities fraud claim and the requisite specificity under the Private Securities Litigation Reform Act ("PSLRA"). The USCA thus affirmed the dismissal of Shurkin's claims with prejudice. The district court correctly found that none of GSV's statements in the Dec. 23 proxy constituted securities fraud. Shurkin, in claiming GSV manipulated the date that went into determining the fairness of a $3.25 per share buyout price, relies on confidential witness statements and an assumption that GSV was obligated to provide "real time" financial data. First, the statements he offers failed to provide the sufficient particularity the USCA has required when allowing the use of confidential witnesses to provide supporting facts for the plaintiffs' claims. At most these statements demonstrate a disagreement the unnamed witnesses have with the business judgments the defendants have made. Second, Shurkin's allegation that the fairness opinion was fraudulent because it used first quarter financial figures is based on an incorrect reading of the securities laws, which require only periodic not continuous disclosure. Second quarter figures were not available at the time GSV issued the proxy statement. Shurkin thus had not adequately demonstrated the fairness statement was either objectively or subjectively false. The USCA also agreed with the district court that none of the statements in the Jan. 20 press release amounted to anything resembling securities fraud. As the district court correctly noted, this case is on all fours with Brody v. Transitional Hospitals Corporation, 280 F.3d 997 (9th Cir. 2002), which found no evidence of securities fraud because Transnational Hospitals Corporation (THC) had not affirmatively stated no merger would occur. Rather, THC made clear via press releases that business conditions had improved and that shares might rise in value in the near future. Id. at 1006-07. The same analysis applied to GSV's January 20 press release. The company never affirmatively stated that no merger would occur and it made clear to shareholders that, contrary to prior unfavorable business conditions necessitating the proposed reverse stock split, market and business conditions had improved. Shurkin was thus on notice that the value of his shares might increase. Shurkin, however, sold his shares upon receiving his good news press release. He now asked the court to provide redress for his error in judgment. The USCA declined to do so. It also agreed with the district court's dismissal of Shurkin's additional claims, as they were wholly without merit. Beezer, Roth, and Bybee, Circuit Judges. (Download the full text of this decision at www.ce9.uscourts.gov/) 3) TRADE SECRETS / ATTORNEYS'S FEES: Sunrich
Food Group, Inc. v. Pacific Foods of Oregon, Inc., 07-35526 (9th
Cir. Dec. 17, 2008) (unpublished). A jury found that defendant Pacific
Foods of Oregon had willfully misappropriated plaintiff Sunrich Food Group, Inc.'s
trade secrets. The district court exercised its discretion to award fees to the
plaintiff under the Oregon Uniform Trade Secrets Act. The defendant did not appeal
the imposition of fees, but the plaintiff appealed the amount. The defendant appealed
with respect to the other issues in the case. The USCA reversed and remanded with
instructions. On the fee issue, it considered the "Reduction of Claimed Attorneys'
Fees" and held that the district court had erroneously concluded that it
could award fees only for work relating to the trade secrets claim. The USCA explained
that, under Oregon law, apportionment among claims is not required if the fee
and non-fee claims involved common legal or factual issues because, when such
issue are intertwined, the amount of fees would be 5) FAIR DEBT COLLECTION PRACTICES ACT: Van v. Grant & Weber, 07-56122 (9th Cir. Dec. 29, 2008) (unpublished). Van, a debtor, appealed from an order of the district court granting a motion for summary judgment filed by Grant & Weber, a debt collector. The complaint, which alleged violations of the Fair Debt Collection Practices ACT ("FDCPA"), 15 USC Secs. 1692-1692p, arose out of a collection letter Grant & Weber sent to Van, stating: "The Rosenthal Act, California Civil Code Sec. 1788.21, also requires that you notify your creditor of your change of name, address, or employment for any existing consumer credit." Van argued that this statement was misleading because California Civil Code. Sec. 1788.21(b) requires such notification only in the event the creditor clearly discloses that requirement in writing in the original agreement. Consequently, Van argued that the statement violated several provisions of the FDCPA. The USCA affirmed. The letter did not misstate California Sec. 1788.21. Under California law, with respect to any consumer credit existing or requested to be extended, a debtor shall, within a reasonable time, notify the creditor of any change in the debtor's name, address, or employment, but "only if and after the creditor clearly and conspicuously in writing discloses such responsibility," Cal. Civ. Code Sec. 1788.21(a), (b). On its face, the requirement to notify creditors of specified changes applies to previously-existing credit, as the situation in the case at issue. The law contains no requirement that the notification be in the original agreement extending credit, and the USCA declined to interpret the statute to include such language. See Doe v. City of Los Angeles, 169 P.3d 559, 567 (Cal. 2007) (holding courts construing California Statutes may not broaden or narrow the scope of the provisions by reading into it language what does not appear in it or reading out of it language that does.) Moreover, because the letter did not more than explain the obligations Sec. 1788.21(a) imposed upon Van, without misconstruing the meaning of the section, Grant & Weber did not use any false, deceptive, or misleading representation, 15 USC Sec. 1692e, or any unfair or unconscionable means to collect any debt, 15 USC Sec. 1692f. Nor did the letter violate 15 USC Sec. 1692g, prohibiting creditors from communicating with debtors in a way that "overshadows" or was "inconsistent" with a debtor's right to dispute a debt." 15 USC Sec. 1692g. There was also no merit to Van's preemption argument. The FDCPA preempts state laws with respect to debt collection practices only to the extent of their inconsistency with the FDCPA. 15 USC Sec. 1692n. There is no inconsistency here. Requiring debtors to provide new contract information while warning debtors that the information will be used for purposes of debt collection, does not conflict with the FDCPA. See 15 USC Sec. 1692(11). Rymer and M. Smith, Circuit Judges, and Korman, District Judge.(Download the full text of this decision at www.ce9.uscourts.gov/) 6) SHIPPERS' LIABILITY / CARMACK AMENDMENT: Shielding International, Inc. v. Oak Harbor Freight Lines, 06-35798 (9th Cir. Dec. 29, 2008) (unpublished). Oak Harbor Freight Lines appealed a district court order granting summary judgment to Shielding International. The court held Oak Harbor liable under the Carmack Amendment, 49 USC Sec. 14706, for damage to Shield-ing's shipment of plastic sheeting. The USCA affirmed. Oak Harbor delivered a shipment of Shielding's freight in damaged condition. Shielding submitted a claim for $46,042. Oak Harbor admitted responsibility but rejected the amount, contending that a release rate of $2.00 per pound listed in its OAKH 100 tariff limited its liability to $4,782. The Carmack Amendment requires a carrier to offer a shipper a choice of liability rates before the carrier may limit its liability for freight damage. Hughes Aircraft Co. v. N. Am. Van Lines, 970 F.2d 609, 611-12 (9th Cir. 1992). Neither Oak Harbor's tariff, its preprinted bills of lading, nor its pricing agreement mentions such a choice. Rather, Oak Harbor claimed that it had "a procedure in place" by which, "had Shielding inquired, it could have selected a higher limitation of liability." But this was insufficient. An unpublicized procedure for revaluing freight-does not constitute "offering a choice" in any acceptable sense of the term. Because Oak Harbor failed properly to limit is liability under the Carmack Amendment, it was liable for the actual loss to Shielding's property. 49 USC Sec. 14706(a)(1). In addition, neither the Trucking Industry Regulatory Reform Act of 1994, nor the ICC Termination Act of 1995, altered the Hughes requirement that a carrier offer a shipper a choice of rates. Thompson, Tashima, and M. Smith, Circuit Judges.(Download the full text of this decision at www.ce9.uscourts.gov/) 7) CIVIL RICO: A. Farber & Partners, Inc. v. Garber, 07-55004 (9th Cir. Dec. 31, 2008) (unpublished). Appellant A. Farber & Partners, Inc. (the "Receiver") was appointed interim receiver over the assets of Salim Damji and Strategic Trading Systems Instant White ("STS") by an order issued by the Ontario Superior Court of Justice. The Receiver's appointment followed a Canadian class action by a group of investors against Damji for fraud. Acting under the order, the Receiver brought this RICO action against Maynard Garber and the other defendants. The Receiver subsequently appealed the district court's order granting summary judgment on the ground that the Received lacked standing to bring a RICO action. Under RICO's civil suit provision, "any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefore in any appropriate United States district." 18 USC Sec. 1964. The Receiver alleged that the defendants violated several provision of Sec. 1962 as part of a large-scale money laundering scheme that involved transfers of approximately $34 million out of Canada to various straw companies and illegal gambling operation. The only issue before the USCA was whether the Receiver had standing under 18 USC Sec. 1964(c) to assert these RICO claims against the defendants. Section 7(e) of the Canadian receivership order authorizes the Receiver "to initiate, prosecute and continue the prosecution of any and all proceedings as may in its judgment be necessary or desirable to properly protect or realize upon the Property." E.R. 8: 1464. By the terms of this section of the court's order, the Receiver is not the personal representative of Damji and does not stand in his shoes. The Receiver's power springs from its appointment to collect and preserve the Property. The "Property" is defined in the order as "all of the present and future assets, undertaking and property of [Damji and STS] and any funds, proceeds or other assets directly or indirectly related to the funds allegedly raised by 'Damji and STS] as alleged in [the Canadian class action complaint]" E.R. 8: 1462-63. This RICO action was authorized by the Canadian receivership order and approved by the Ontario Superior Court of Justice. The Receiver's averments that (1) the defendants participated in a conspiracy to launder funds over which the Receiver has legal control, and (2) that the Receiver suffered injury when the funds under its protection were transferred by the defendants' RICO violations, sufficiently allege that the Receiver was injured in its property by reason of a violation of Sec. 1962. 18 USC Sec. 1964(c). The USCA thus concluded that the district court erred in holding that the Receiver did not have standing to bring its RICO claims under Sec. 1964(c). When the district court ruled in favor of Garber, there was a motion pending for terminating sanc-tions filed by the receiver against Garber. The magistrate judge had heard oral arguments on the sanctions motion, but had not yet is-sued a ruling. Because it found that the Receiver had standing to bring his action, the USCA held that the terminating sanction motion remains active before the magistrate judge. The USCA thus reversed the district court's judgment and remanded for proceedings in accordance with its decision. Noonan and Silverman, Circuit Judges, and Conlon, District Judge. (Download the full text of this decision at www.ce9.uscourts.gov/) 8) ATTORNEYS' FEES: Hubbard v. Kayo Oil Company, 07-56068 (9th Cir. Dec. 17, 2008) (unpublished). Kayo Oil Company appealed the district court's denial of attorneys' fees following an award of summary judgment in its favor. The USCA found that the district court's "Order Granting Defendants' Motion for Summary Judgment" too ambiguous to permit it to rule on most of the issues appealed in this case. It thus vacated the Order and remanded the case to the district court with instructions that it articulate a reasoned basis for its Order, and provide a reasoned decision, based in the record, on whether the case is moot. The USCA noted that, depending on the district court's resolution of the mootness issue, it may consider Kayo's motion for attorneys' fees. A district court has discretion to award attorneys' fees to a prevailing defendant "upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation." Summers v. Teichert & Son, 127 F.3d 1150, 1154 (9th Cir. 1997) (quoting Christiansburg Garment Co. v. EEOC, 434 US 412, 421 (1978) (noting that the defendant may be entitled to attorneys' fees even where the action was "not brought in subjective bad faith.") Depending on the district court's resolution of the mootness issue, it may also consider Kayo's motion for attorneys' fees under state law in light of Hubbard v. SoBreck, 531 F.3d 983 (9th Cir. 2008). 28 USC Sec. 1927 allows a court to charge an opponent's costs and fees against any attorney who so multiplies the proceedings in any case unreasonably and vexatiously. The district court found that the Hubbards did not so multiply the proceedings, especially because they conceded during the summary judgment stage. The record did not demonstrate that the district court's decision on this issue constituted an abuse of discretion. Finally, the Hubbards suggested that Kayo and its counsel deserve sanctions for their alleged "aspersions," unprofessional slurs," and for misstating the record in his appeal. The USCA found the Hubbards' suggestion to be without merit and rejected it. Rymer and M. Smith, Circuit Judges, and Korman, District Judge. ((Download the full text of this decision at www.ce9.uscourts.gov/) 9) CHOICE-OF-LAW PROVISIONS: In re
Maria Detwiler, 08-72823 (9th Cir. Dec. 12, 2008) (unpublished).
Detwiler petitioned for a writ of mandamus vacating a district court's order compelling
arbitration. She challenged that court's conclusion that, as specified by her
contract with T-Mobile, Florida law governs her dispute, even though the arbitration
provision contains a class action waiver. She also challenged the court's conclusion
that the choice-of-law provision is not unconscionable. The USCA denied the petition.
As the suit was filed in the Western District of Washington, the USCA looked to
Washington's choice-of-law rules. Patton v. Cox, 276 F.3d 493, 496 (9th
Cir. 2002) ("When a federal court sits in diversity, it must look to the
forum state's choice of law rules to determine the controlling substantive law.").
Accordingly, resolution of this dispute requires determining: (1) whether there
is an actual conflict of laws between Washington and Florida, and if so, (2) whether
the parties' choice of Florida law is effective. The parties agreed that an actual
conflict of law exists between Washington and Florida as to the enforceability
of class action waivers in binding arbitration provisions. Applying Sec. 187(2)(b)
of the Restatement (Second) Conflict of Laws (1971) ("Restatement"),
Washington courts will enforce a choice-of law provision unless all three of the
following conditions are met: (1) without the provision, Washington law would
apply under Restatement Sec. 188; (2) the chosen state's law violates a fundamental
public policy of Washington; and (3) Washington's interest in the determination
of the issue materially outweighs the chosen state's interest. McKee v. AT&T
Corp., 191 P.3d 845, 851 (Wash. 2008). The district court held that the parties'
choice of Florida law was effective because Washington does not have a materially
greater interest than Florida in applying its law to Detwiler's subscriber agreement.
As the district court found the third prong dispositive, it did not examine the
first or second. The district court did not clearly err in applying Florida law
because, under the first prong, Washington law would not apply in the absence
of the choice-of-law provision. In determining which state's law would apply under
Restatement Sec. 188, Washington courts weigh the relative importance of: (1)
the place of contracting; (2) the place of contract negotiation; (3) the place
of contract performance; (4) the location of the subject matter of the contract;
and (5) the domicile, residence, or place of incorporation of the parties. Id.
at 852. Florida is the place of contracting, the place of negotiation, the place
of performance, the location of the subject matter, and the residence of one of
the parties. That T-Mobile is headquartered in Washington is the only fact tying
Washington to this litigation. The USCA thus held that, absent the choice-of-law
provision, a Washington court would apply Florida law. The district court also
did not clearly err in ruling that the choice-of-law provision was neither substantively
nor procedurally unconscionable. "Substantive unconscionability involves
those cases where a clause or term in the contract is alleged to be one-sided
or overly harsh." Zuver v. Airtouch Commc'ns, 103 P.2d 753. 759 (Wash.
2004) (quoting Schroeder v. Fageol Motors,544 P.2d 20, 23 (Wash. 1975)).
In Washington, "shocking to the conscience," "monstrously harsh,"
and "exceedingly calloused" are terms sometimes used to define substantive
unconscionability. Id. Washington courts define procedural unconscionability
as "the lack of meaningful choice, considering all the circumstances surrounding
the transaction including the manner in which the contract was entered, whether
each party had a reasonable opportunity to understand the terms of the contract,
and whether the important terms [were] hidden in a maze of fine print." Id.
(quoting Nelson, 896 P.2d at 1262). Designating the law of the consumer's home
state as the law governing a cellular telephone contract does not satisfy the
standard for substantive unconscionability. To the contrary, courts have invalidated
choice-of-law provisions selecting other states in favor of the law of the state
in which the consumer resides. E.g., Oestreicher v. Alienware Corp., 502
F.Supp. 2d 1061, 1065-69 (N.D. Cal. 2007) (applying California law in a class
action on behalf of California residents where contract provided for Florida law
and defendant was a Florida company); McKee, 191 P.3d at 852 (applying Washington
law in a class action suit where named plaintiff was a Washington resident, defendant
was incorporated in New York, and contract provided for New York law). Although
Detwiler argued that the choice-of-law provision is substantively unconscionable
because it leads to enforcement of the arbitration and class action waiver provisions,
she failed to raise that argument before the district court. Moreover, to render
the choice-of-law provision unenforceable on this basis would subvert the Restatement
Sec. 187 analysis applied by Washington courts when the parties have made an express
contractual choice of law. Detwiler's primary argument for procedural unconscionability
is that the Agreement is a consumer contract of adhesion. But "the fact that
an agreement is an adhesion contract does not necessarily render it unconscionable."
Zuver, 103 P. 3d at 760. Detwiler did not argue that she was pressured to enter
the contract, or that the choice-of-law provision was hidden in a "maze of
fine print." That Detwiler would have chosen Washington over Florida law
had the implications of that choice been explained is irrelevant; this being a
contract of adhesion, Detwiler never had a choice between Washington and Florida
law, only a choice to enter or not enter the Agreement with T-Mobile. Nor is the
choice-of-law provision-which states that this Agreement is governed by the laws
of the state in which your billing address in our records is located-set forth
in such a way that an average person could not understand it. Id. at 761.
Finally, the fact that Detwiler contracted with T-Mobile eleven times since November
1002, and received a Welcome Guide containing the Agreement as many as five times,
further supports the conclusion that she had reasonable opportunity to understand
the contract terms. Gould, Tallman, and Callahan, Circuit Judges. (Download the full text of this decision
at www.ce9.uscourts.gov/) |
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