1)  ANTITRUST:  Snake River Valley Electric Association v. PacificCorp., 99-35204 (9th Cir. Oct. 3, 2000).  PacificCorp, a power company that refused to allow another company to "wheel" and supply power to its customers through PacificCorp's electric transmission facilities, was not shielded by Idaho's state action immunity doctrine from an antitrust action, because the Idaho statute that authorized this refusal did not provide for active state supervision.  Lay (author), Tashima, and McKeown, Circuit Judges. C. Wheatley of Annapolis, Maryland, for the plaintiff-appellant;  D. Jordan and J. Eriksson of Salt Lake City, Utah, for the appellees;  B. DeLange of Boise, Idaho, for the intervenor-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

2)  SECURITIES FRAUD:  Z-Seven Fund, Inc. v. Motorcar Parts & Accessories, 00-55014 (9th Cir. Oct. 18, 2000).  An order appointing a "lead plaintiff" in an on-going securities-fraud class action is not a "collateral order" from which an interlocutory appeal can be taken.  Thompson, T.G. Nelson, and Silverman (author), Circuit Judges.  B. Parekh of Los Angeles, CA, for the plaintiffs-appellants;  M. Seltzer of Los Angeles, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

3)  CLASS ACTIONS / ATTORNEYS' FEES: Powers v. Eichen, 98-56997 (9th Cir. Oct. 20, 2000).  An unnamed class member who filed an objection in district court to the amount of attorneys' fees requested has standing to appeal the award under FRCP 23 although he had not intervened in the district court.  Kozinski, T.G. Nelson, and Wardlaw (author), Circuit Judges.  L. Schonbrun of Berkeley, CA, for the plaintiffs; K. Park of San Diego, CA, for the defendants.    (Download the full text of this decision at www.ce9.uscourts.gov/) 

4)  BANKRUPTCY:  In re Berg, 96-16672 (9th Cir. Oct. 23, 2000).  Attorneys' fees imposed as a sanction for frivolous conduct are not subject to the automatic stay imposed by 11 USC Sec. 362(a), but instead fall under the "regulatory power" exemption of Sec. 362(b)(4).  D.W. Nelson, Thompson, and Trott (author), Circuit Judges.  J. Berg of San Francisco, CA, pro se;  M. Buckley of Oak-land, CA, for the appellee.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

5)  BANKRUPTCY / CORPORATIONS:  In re Bonham, 98-36081 (9th Cir. Oct. 4, 2000).  The Bankruptcy Court properly ordered the substantive consolidation of two non-debtor corporations with the bankruptcy estate of a Chapter 7 debtor nunc pro tunc as of the filing date of the involuntary Chapter 7 petition, where there had been a disregard of corporate formalities and a commingling of the debtor's personal assets and the corporations' assets.  D.W. Nelson, Reinhardt, and Thomas (author), Circuit Judges.  R. Goss and G. Courtney of Seattle, WA, and R. Copeland of Anchorage, AK, for the appellants;  C. Christianson of Anchorage, AK, for the appellee.    (Download the full text of this decision at www.ce9.uscourts.gov/) 

6)  BANKRUPTCY:  In re B.U.M. International, 99-55236 (9th Cir. Oct. 13, 2000).  A Bankruptcy Court is entitled to review a professional's request for contingency fees where it had specifically reserved the right to approve all fees and costs of the profession when it approved his employment.  Browning, T.G. Nelson, and Silverman (author), Circuit Judges.  M. Weiss of Los Angeles, CA, for the appellant;  G. Caris of Los Angeles, CA, for the appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

7)  BANKRUPTCY / AMERICANS WITH DISABILITIES ACT: O'Loghlin v. County of Orange, 98-56774 (9th Cir. Oct. 6, 2000).  Although the plaintiff's Americans with Disabilities Act claim against Orange County, California, had been discharged in the County's bankruptcy proceedings, the County may be liable for post-discharge conduct in violation of the Act.  Canby, Noonan, and W. Fletcher (author), Circuit Judges.  D. Dotson of Mililani, HI, for the plaintiff-appellant;  W. Bernard of Santa Ana, CA, for the defendant-appellee.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

8)  TAXATION:  Ashman v. CIR, 99-70280 (9th Cir. Oct. 26, 2000).  The Tax Court may apply the "duty of consistency" doctrine to cases which come before it.  O'Scannlain, Fernandez (author), and Rawlinson, Circuit Judges.  S. Mather of Beverly Hills, CA, for the appellant;  C. Barthel of Washington, DC, for the appellee.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

 9)  BUSINESS LAW:  Wyler Summit Partnership v. Turner Broadcasting System, 99-15773 (9th Cir. Oct. 26, 2000).  Summary judgment was inappropriate where the parties to a contract dispute disagreed as to whether a compensation provision one party wanted to waive had been included for the benefit of just that party.  D.W. Nelson, Thompson, and Trott (author), Circuit Judges.  J. Bass of San Francisco, CA, for the plaintiff-appellant;  M. Popofsky of San Francisco, CA, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

10)  BUSINESS LAW:  Nippon Miniature Bearing Corp. v. Weise, 97-55930 (9th Cir. Oct. 27, 2000).  The Court of International Trade has exclusive jurisdiction to entertain claims brought by an importer challenging the legality of forfeiture and penalty assessment actions taken by the U.S. Customs Service arising from the importation of mislabeled goods; dissenting in part, Judge McKeown thought the plaintiff's constitutional claims should be analyzed separate from its statutory claims and that the district court had jurisdiction over the constitutional claims.  Brunetti (author), Magill, and McKeown (dissenting in part), Circuit Judges.  G. Trost of Los Angeles, CA, for the appellant;  AUSA C. Wallack of Washington, DC, for the appellees.    (Download the full text of this decision at www.ce9.uscourts.gov/) 

11)  COMMUNICATIONS LAW:  Evanns v. AT&T Corporation, 99-55165 (9th Cir. Oct. 25, 2000).  The filed-rate doctrine bars a consumer suit challenging a carrier's pass-through of a fee imposed by the Federal Communications Commission.  T.G. Nelson (author), Tashima, and Silverman, Circuit Judges.  E. Mittelmann of Beverly Hills, CA, for the plaintiff-appellant;  J. Gustafson of Los Angeles, CA, for the defendants-appellees.    (Download the full text of this decision at www.ce9.uscourts.gov/) 

12)  ENVIRONMENTAL LAW / CLEAR WATER ACT / STANDING: Ecological Rights Foundation v. Pacific Lumber Co., 99-17076 (9th Cir. Oct. 30, 2000).  Under Friends of the Earth v. Laidlaw, 120 S.Ct. 693 (2000), an environmental organization has standing to bring suit under the Clean Water Act on behalf of its members who show that they have an aesthetic or recreational interest in a place that is impaired by the defendant's conduct.  Boochever, Trott and Berzon (author), Circuit Judges.  S. Duggan of San Francisco, CA, for the plaintiffs-appellants;  J. Carter of Scotia, CA, for the defendant-appellee.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

13)  ENVIRONMENTAL LAW / CEDE BACK AGREEMENTS: In re The Exxon Valdez, 96-36038 (9th Cir. Oct. 12, 2000).  Cede back agreements are lawful and enforceable and generally should not be disclosed to the jury;  the USCA noted that "What Exxon and [a group of plaintiffs] did…was use a Pierringer device to obtain the functional equivalent of a proportionate share allocation of damages.  Since both the Ninth Circuit and the Supreme Court have endorsed the proportionate share approach because of its superiority in blending fairness to the parties with incentives to settle, we cannot hold such an agreement unenforceable as a matter of public policy.  Far from being unethical, cede back agreements make it easier to administer mandatory class actions for the assessment of punitive damages and encourage settlement in mass tort cases.  As a result, such agreements should typically be enforced.".  Browning, Schroeder (author), and Kleinfeld, Circuit Judges.  D. Tarshes of Anchorage, AK, and J. vanR. Springer of Washington, DC, for the plaintiffs-appellees;  J. Daum of Los Angeles, CA, for Exxon Corporation;  B. Keller of Seattle, WA, for North Coast Sea-food Processors.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

14)  LABOR LAW:  Plumber, Steamfitter and Shipfitter Industry Pension Plan & Trust v. Siemens Building Technologies Inc., 99-35758 (9th Cir. Oct. 3, 2000).  Trustees of an ERISA employee benefits plan have a legitimate purpose to audit an employer's payroll records to determine whether the employer had been making contributions to the plan for employees engaging in work governed by the collective bargaining agreement.  Goodwin (author), Graber, and W. Fletcher, Circuit Judges.  E. Thomas of Chicago, IL, for the defendant-appellant;  D. Cornelius of Portland, OR, for the plaintiffs-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

15)  ERISA:  Thomas v. Oregon Fruit Products Co., 98-36065 (9th Cir. Oct. 5, 2000).  Citing Kearney v. Standard Ins. Co., 175 F.3d 1084 (9th Cir.) (en banc), cert. denied, 120 S.Ct. 398 (1999), the USCA held that the District Court must review an ERISA participant's claim de novo when, under the disability benefits insurance policy, the discretion to grant or deny claims is not unambiguously retained by the plan administrator or fiduciary.  Schroeder, Hawkins, and Fisher (author), Circuit Judges.  J. Alexander of Salem, OR, for the plaintiff-appellant;  R. Lindahl of Portland, OR, for the defendants-appellees.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

16)  AGE DISCRIMINATION IN EMPLOYMENT: Katz v. The Regents of the University of California, 99-15384 (9th Cir. Oct. 25, 2000).  Although states have Eleventh Amendment immunity against an action by employees under the Age Discrimination in Employment Act, they may waive that immunity and submit to Federal District Court's subject-matter jurisdiction to adjudicate an action on the merits;  on the merits, the USCA affirmed the District Court's judgment dismissing as a matter of law the plaintiffs' disparate impact claim, as they could not prevail on that claim because any disparity in the impact of the state's decision to offer an early retirement incentive program to members of one retirement plan, whose average age was 55, and not to members of another retirement plan whose average age was 60, was not on account of age but on account of retirement plan membership.  Schroeder (author), Hawkins, and Fisher, Circuit Judges.  G. Olimpia of San Jose, CA, for the plaintiffs-appellants;  W. Clinton of San Francisco, CA, for the defendants-appellees.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

17)  SEXUAL HARASSMENT:  Brooks v. City of San Mateo, 98-15818 (9th Cir. Oct. 23, 2000).  Under Title VII of the Civil Rights Act, a single and rather unsavory episode of sexual assault was insufficient to support a hostile work environment claim where there was no evidence that the employer was aware of the harasser's propensity for such misconduct, and prior history in this regard, and took prompt and appropriate corrective actions once the harassment was reported.  Wood, Kozinski (author), and Rymer, Circuit Judges.  J. Prentice of San Francisco, CA, for the plaintiff-appellant;  N. Pritikin and A. Berry-Wilkinson of San Francisco, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 

18)  LABOR LAW / DISABILITIES:  Barnett v. U.S. Air, Inc., 96-16669 (9th Cir. Oct. 4, 2000).  Summary judgment was inappropriate where a factual dispute existed as to whether a disabled employee's request to remain in the position into which he was transferred following his injury was a reasonable accommodation or an undue hardship for his employer;  Judge Gould, joined by Judge Thomas, concurred but wrote separately to express his views concerning the relationship between the demonstration of reasonableness and undue hardship;  Judge O'Scannlain, joined by Judges Trott and Kleinfeld, dissented based upon his belief that the majority's "wide-ranging opinion make clear that it aspires to offer a definitive interpretation of the Americans with Disabilities Act (ADA)" and in doing so decides several important issues of first impression in a case without a proper plaintiff, as the plaintiff here is not disabled within the meaning of the ADA.  Hug, Schroeder, B. Fletcher (author), Pregerson, O'Scannlain (dissenting), Trott (dissenting), Kleinfeld (dissenting), Tashima, Thomas (concurring), Fisher, and Gould (concurring), Circuit Judges.  R. Rychlik of Palm Desert, CA, for the plaintiff-appellant;  R. Thomas of Los Angeles, CA, for the defendant-appellee.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

19)  TORTS:  Vickers v. USA, 99-55976 (9th Cir. Oct. 3, 2000).  The discretionary function exception to the Federal Tort Claims Act applied to claims that the Immigration and Naturalization Service's negligently hired, trained, and supervised an INS detention enforcement officer accused of recklessly firing of his Service firearm;  the discretionary function exception did not apply to a claim that the INS was negligent for failing to investigate the shooting; and, sufficient factual questions remained as to whether the INS's negligence in failing to investigate was the cause of the plaintiff's injury.  Reinhardt and Berzon (author), Circuit Judges, and Breyer, District Judge.  C. Guerry of Pasadena, CA, for the plaintiff-appellant;  A. Mayorkas of Los Angeles, CA, the defendants-appellees.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

20)  TORTS:  Caldwell v. Enstrom Helicopter Corp., 99-15746 (9th Cir. Oct. 30, 2000).  On an issue of first impression, the USCA held that a revised flight manual constitutes a new "system … or other part" of a helicopter within the "rolling provision" of the General Aviation Revitalization Act of 1994;  if, within the last 18 years, the defendant substantively revised, or deleted, the instructions in the flight manual that describe or warn about the fuel tanks, and if the plaintiffs allege that those revisions or deletions caused the deaths, injuries, and damage at issue, then the plaintiffs can state a claim.  Kozinski, Graber (author), and Fisher, Circuit Judges.  W. Fitzgerald of Saipan, MI, for the plaintiffs-appellants;  R. Walker of Chicago, IL, for the defendant-appellee.    (Download the full text of this decision at www.ce9.uscourts.gov/) 

21)  TORT / CONTRACTS / ATTORNEYS' FEES: Kona Enterprises v. Estate of Bishop, 99-16295 (9th Cir. Oct. 6, 2000).  Under Hawaii law, where a complaint alleged tort and contract claims and the District Court rules that, for purposes of attorneys' fees, the entire action is in the nature of assumpsit, it must revisit the fee issue as during the pendency of an appeal the Hawaii Supreme Court ruled that an award of fees should be based on an apportionment of fees claimed between assumpsit and non-assumpsit claims.  Pregerson (author), Hawkins, and McKeown, Circuit Judges.  R. Walker of Salt Lake City, UT, for the plaintiffs-appellants;  D. Schulmeister of Honolulu, HI, for the defendants-appellees.    (Download the full text of this decision at www.ce9.uscourts.gov/) 

22)  HEALTH INSURANCE:  Simkins v. NevadaCare, Inc. 99-16844 (9th Cir. Filed Oct. 3, 2000 and amended Oct. 31, 2000).  A reasonable interpretation of a health insurance plan, which includes coverage for chemotherapy and blood transfusions while excluding, under an organ transplants exclusion, most tissue transplants, would also say the plan includes coverage for high dose chemotherapy with peripheral stem cell rescue for a recurrence of breast cancer.  Schroeder, Hawkins, and Fisher (author), Circuit Judges.  E. Carranza of Las Vegas, NV, for the plaintiffs-appellants;  C. Akridge of Las Vegas, NV, for the defendant-appellee.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

23)  JUDICIAL ADMINISTRATION:  Paciulan v. George, 99-15687 (9th Cir. Oct. 17, 2000).  California's rules regulating pro hac vice admission to practice law in California courts, as codified in California Rule of Court 983, do not violate the rights granted under the Privileges and Immunities Clause of Article IV, the Privileges or Immunities Clause of the Fourteenth Amendment, the First Amendment or the Due Process Clause of the Fourteenth Amendment.  Aldisert, Graber, and Fisher, Circuit Judges.  Per Curiam.  J. Giannini of Los Angeles, CA, for the plaintiffs-appellants;  P. Southworth of Sacramento, CA, for the defendants-appellees.    (Download the full text of this decision at www.ce9.uscourts.gov/) 

24)  EDUCATION LAW:  Mexican-American Educators v. California, 96-17131 (9th Cir. Oct. 30, 2000).  The California Basic Education Skills Test ("CBEST"), a prerequisite to employment in various positions in California's public schools, violates neither Title VI or Title VII of the Civil Rights Act of 1964;  the District Court permissibly used a technical advisor and did not abuse its discretion by refusing to award costs to the defendants;  Judge Reinhardt, joined by Judges Schroeder and Thomas, dissented in part based on their belief that the majority incorrectly held that CBEST was properly validated under Title VII and, as a result of this ruling, qualified minority teachers, administrators, and others will be denied the opportunity to work in California's under-staffed public schools simply because they failed to pass a test that concededly has a disparate impart on minorities;  Judge Fernandez, joined by Judge Rymer, dissented from the majority determination that a District Court can refuse to award costs to the prevailing party simply because it decides that the losing parties do not have much money and are worthy because they have presented an important issue that is close and has some merit—this Judges Fernandez and Rymer thought bespeaks an improper bias in favor of the plaintiffs;  Judge Kleinfeld, joined by Judge O'Scannlain, agreed with Judge Graber that the test was adequately validated and did not violate the Civil Rights Act, and agreed that the judgment did not need to be vacated because of the District Court's use of an inchambers expert, but also agreed with Judge Gould's dissent as to whether Title VII applies, and agreed with Judge Fernandez that the ruling on the denial of costs should be reversed;  Judge Gould, dissenting in part, wrote separately to express his view that Title VII does not apply to CBEST;  he thought the majority extended Title VII far beyond what Congress intended and in so doing created potential mischief for the states.  Hug, Schroeder (dissenting in part), Reinhardt (dissenting in part), O'Scannlain (dissenting in part), Fernandez (dissenting in part), Rymer (dissenting in part), Kleinfeld (dissenting in part), Tashima (dissenting), Thomas (dissenting in part), Graber (author), and Gould (dissenting in part), Circuit judges.  J. Affeldt of San Francisco, CA, for the plaintiffs-appellants;  R. Ashe of Atlanta, GA, and S. Wald of San Francisco, CA, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

25)  ELECTION LAW / NATIVE AMERICAN LAW: Person v. Cooney, 99-36157 (9th Cir. Oct. 27, 2000).  In an action brought by Native Americans to challenge the validity of Montana's 1992 redistricting plan for Montana's House of Representatives and Senate under the Voting Rights Act, the District Court erred in relying on the electoral success of Indian candidates in majority-Indian House Districts to conclude that white bloc voting in majority-white House Districts was not legally significant;  the District Court also erred in concluding that under the 1992 plan, American Indians were proportionally represented.  Canby (author), Brunetti, and O'Scannlain, Circuit Judges.  L. McDonald of Atlanta, GA, for the appellants;  S. Bond of Helena, MT, for the appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

26)  FREEDOM OF SPEECH:  Cole v. Oroville Union High School Dist., 99-16550 (9th Cir. Oct. 2, 2000).  The equitable claims of two high school seniors who were prevented by their school district from presenting a proselytizing and sectarian valedictory speech and a sectarian invocation during their graduation ceremony were moot by their graduation from high school.  Schroeder, Hawkins, and Fisher (author), Circuit Judges.  S. Burlingham of Sacramento, CA, for the plaintiffs-appellants;  C. Keiner of Sacramento, CA, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

27)  NATIVE AMERICAN LAW:  Anderson v. Babbitt, 98-36150 (9th Cir. Oct. 30, 2000).  Exhaustion of administrative remedies under 43 CFR Sec. 4.21(c) is not a jurisdictional prerequisite to a colorable due process challenge to the procedures of an administrative law judge and the Interior Board of Indian Appeals in pending Indian probate proceedings.  Goodwin, Alarcon (author), and McKeown, Circuit Judges.  D. Knodel of Washington, DC, for the plaintiff-appellant;  AUSA M. Chutkow of Seattle, WA, for the defendant-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

28)  NATIVE AMERICAN LAW:  Bugenig v. Hoopa Valley Tribe, 99-15654 (9th Cir. Oct. 3, 2000).  An Indian tribe can not regulate timber harvesting by nonmembers on fee-patented private property within the reservation boundary.  Reavley, O'Scannlain (author), and Gould, Circuit Judges.  J. Burling of Sacramento, CA, for the plaintiff-appellant;  T. Schlosser of Seattle, WA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 

29)  IMMIGRATION LAW:  Salaam v. INS, 98-71439 (9th Cir. Oct. 18, 2000).  The BIA may not base an adverse credibility finding on the conclusion that due to his age it was implausible that the asylum applicant was a leader of an important anti-government organization in his homeland.  Browning, Hall, and Silverman, Circuit Judges.  Per Curiam. J. Gehart of Los Angeles, CA, for the pe-titioner;  C. Bither of Washington, DC, for the respondent.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

30)  IMMIGRATION LAW:  Martirosyan v. INS, 98-70979 (9th Cir. Oct. 23, 2000).  An alien claiming political asylum as a conscientious objector need not produce documentary evidence that his mandatory military service in his home country would have required him to engage in the inhumane treatment of POWs;  dissenting Judge Wallace thought the majority had ordered asylum "for a draft dodger who offered no evidence in support of his claim that he would have been forced to commit war crimes had he not fled Armenia.".  Wallace (dissenting), Pregerson (author), and Thomas, Circuit Judges.  L. Gordon of Los Angeles, CA, -for the petitioner-appellant;  R. Blaya of Washington, DC., for the respondent-appellee.    (Download the full text of this decision at www.ce9.uscourts.gov/) 

31)  IMMIGRATION LAW:  Noh v. INS, 98-70982 (9th Cir. Oct. 5, 2000).  Under the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act, the government improperly revoked a student visa when it stated only that the visa had been illegally obtained without stating a valid reason for the revocation.  Hug and Thompson (author), Circuit Judges, and Restani, Court of Intl. Trade Judge.  S. Folinsky of Los Angeles, CA, for the petitioner;  N. Reyna, of Washington, DC., for the respondent.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

32)  IMMIGRATION LAW:  USA v. Garcia-Martinez, 99-50546 (9th Cir. Oct. 3, 2000).  There is no presumption of bias arising from the mere institutional structure of the INS such as to constitute a due process violation where an alien's expedited administrative removal proceeding under 8 USC Sec. 1326 is adjudicated by an INS detention officer.  Fernandez and Wardlaw (author), Circuit Judges, and Weiner, District Judge.  T. Burns of San Diego, CA, for the appellant;  AUSA S. Liccardo of San Diego, CA, for the ap-pellee.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

33)  IMMIGRATION / CRIMINAL LAW:  Nakaranurack v. USA, 97-16242-(9th Cir. Oct. 27, 2000).  The Antiterrorism and Effective Death Penalty Act's elimination of the direct review of final deportation orders against criminal aliens applies retroactively to confer habeas jurisdiction to challenge the same order.  B. Fletcher (author), Hawkins, and Thomas, Circuit Judges.  X. Gonzales of Las Vegas, NV, for the petitioner;  H. Phillips of Washington, DC, for the respondent.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

34)  CRIMINAL LAW / JUVENILES:  USA v. Juvenile, 00-30021 (9th Cir. Oct. 3, 2000).  The requirement of a prior adjudication for an offense set forth in the mandatory transfer provisions of 18 USC Sec. 5032, before the juvenile can be prosecuted as an adult, does not deprive the juvenile of due process; the transfer statute does not per se increase punishment;  it merely establishes "a basis for district court jurisdiction of prosecutions to which it applies."  B. Fletcher and Tashima, Circuit Judges, and Duplantier (author), Dis-trict Judge.  AFD D. Donovan of Great Falls, MT, for the defendant;  AUSA L. Suek of Great Falls, MT, for the plaintiff.    (Download the full text of this decision at www.ce9.uscourts.gov/) 

35)  CRIMINAL LAW / JUVENILES:  USA v. Juvenile, 98-50368 (9th Cir. Oct. 3, 2000).  Failure to comply with notification requirements of the Juvenile Delinquency Act upon arrest of a Mexican juvenile, although not a violation of due process, was prejudicial and required reversal;  dissenting, Judge Trott thought that who notifies an arrestee's parents or a consulate is unimportant and that what matters is the timing and the content of the message; Judge Trott thought the majority's astringent reading of "the arresting officer in 18 USC Sec. 5033 is patently wrong and "turns the law into a formalistic dance where the importance of the form becomes where one puts one's foot rather than what the dance is intended to convey.". D.W. Nelson (author), Reinhardt, and Trott (dissenting), Circuit Judge.  FPD J. Burghardt of San Diego, CA, for the appellant;  AUSA R. Bunker of San Diego, CA, for the appellee.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

36)  DOUBLE JEOPARDY:  Charles v. Hickman, 99-17063 (9th Cir. Oct. 3, 2000).  The government was not precluded from reliti-gating evidence of a defendant's motive in an earlier stabbing to prove retaliatory motive at a murder trial where the issue of the stabbing motive was governed by a lower standard of proof in murder trial than in the original stabbing trial.  Schroeder, Hawkins, and Fisher (author), Circuit Judges.  AFD A. McClintock of Sacramento, CA, for the petitioner;  M. Beautus of San Francisco, CA, for the respondents.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

37)  RIGHT TO COUNSEL:  Mayfield v. Calderon, 97-99031 (9th Cir. Oct. 13, 2000).  It was not ineffective assistance of counsel to not present mitigating testimony from a defendant's family and friends that is repetitive of expert testimony, had little exculpatory value, would open the door for damaging rebuttal evidence, and would risk alienating jurors;  the defendant was not prejudiced by the omission of the defendant's mitigating testimony.  Brunetti (author), Fernandez, and Kleinfeld, Circuit Judges.  M. Crain of Los An-geles, CA, for the petitioner-appellant;  G. Beaumont of San Diego, CA, for the respondent-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

38)  SEARCH & SEIZURE:  USA v. $109,179, 99-55040 (9th Cir. Oct. 2, 2000).  The insertion of a key into the lock of a car door for the sole purpose of aiding the police in identifying the possessor of the key is, by itself, not a "search" prohibited by the Fourth Amendment;  under USA v. Portillo-Reyes, 529 F.2d 844 (9th. Cir. 1975), the insertion of a key into a car lock was "the beginning of the search" but in the instant case, once the police found that the key fit the lock, they did not proceed any further until obtaining the suspect's consent.  Kozinski, T.G. Nelson (author), and Wardlaw, Circuit Judge.  R. Hanson of Santa Ana, CA, for the claimant-appellant;  AUSA P. Watford of Los Angeles, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

39)  SEARCH & SEIZURE:  USA v. Hay, 99-30101 (9th Cir. Oct. 24, 2000).  Probable cause for a warrant to search a computer for child pornography could be established by information showing that such materials were transmitted to the suspect's unique Internet address; the sender's File Transfer Protocol log contained entries for each specific transmission; the files were downloaded to a specific directory in the suspect's computer; the suspect's computer was sometimes configured to the Internet address to which the sender transmitted; and the suspect was the sole user of the receiving computer.  Rymer (author) and T.G. Nelson, Circuit Judges, and Browning, District Judge.  J. Solovy of Seattle, WA, for the defendant-appellant;  AUSA F. Short of Seattle, WA, for the plaintiff-appellee.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

40)  SEARCH & SEIZURE:  USA v. Amano, 99-10607 (9th Cir. Oct. 12, 2000).  The exclusion of evidence was not an appropriate remedy for the violation, if there was one, of the defendants right under the Consular Convention and Protocol between the United States and Japan.  Aldisert, Graber (author), and Fisher, Circuit Judge.  AFPD J. McClellan of Phoenix, AZ, for the defendant-appellant;  AUSA K. McDonald of Phoenix, AZ, for the plaintiff-appellee.    (Download the full text of this decision at www.ce9.uscourts.gov/) 

41)  SEARCH & SEIZURE:  USA v. Furrow, 99-30232 (9th Cir. Oct. 12, 2000).  After officers had all the suspects under arrest and there existed no further threat to their safety, a warrantless entry and search of the premises could not justified as a protective sweep.  Hug, Brunetti (author), and Gould, Circuit Judge.  J. Siebe, Moscow, ID, for the defendant-appellant;  AUSA B. McHugh of Coeur d'Alene, ID, for the plaintiff-appellee.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

42)  EVIDENCE:  USA v. Boone, 99-50225 (9th Cir. Oct. 18, 2000).  Inculpatory out-of-court statements to a co-conspirator when the declarant had no motive to shift the blame to someone else or to minimize his own culpability was admissible against another co-conspirator as a statement against interest.  T.G. Nelson, Tashima, Silverman (author), Circuit Judge.  K. Stern of Woodland Hills, CA, for the defendants-appellants;  AUSA N. Spiegal of Los Angeles, CA, for the plaintiff-appellee.    (Download the full text of this decision at www.ce9.uscourts.gov/) 

43)  EVIDENCE:  USA v. Johnson, 99-10485 (9th Cir. Oct. 13, 2000).  When all monies deposited in an illegal bank account are government monies, there is sufficient evidence to find that a defendant who withdraws money from the account is in receipt of "property of" the U.S. government.  Thompson, T.G. Nelson (author), Silverman, Circuit Judges.  AUSA R. Rachow of Reno, NV, for the plaintiff-appellant;  P. Reilly of Las Vegas, NV, for the defendant-appellee.   (Download the full text of this decision at www.ce9.uscourts.gov/)

44)  EVIDENCE:  USA v. Derington, 98-10514 (9th Cir. Oct. 20, 2000).  In a federal prosecution for illegally cutting timber in a national forest, the erroneous admission of the evidence of cutting on adjacent private property in violation of state law was harmless where the District Court instructed the jury that the evidence was admitted only to prove the defendant's intent with respect to cutting on federal land.  Noonan (author), Thomas, and Berzon, Circuit Judges.  AFPD Rainwater of Fresno, CA, for the defendant-appellant;  AUSA R. Cutler of Fresno, CA, for the plaintiff-appellee.    (Download the full text of this decision at www.ce9.uscourts.gov/) 

45)  EVIDENCE:  USA v. Howell, 99-10573 (9th Cir. Oct. 31, 2000).  The District Court did not abuse its discretion in considering whether to conduct an evidentiary hearing on a motion to suppress the defendants alleged confession;  an evidentiary hearing on a motion to suppress need be held only when the moving papers allege facts with sufficient definiteness, clarity, and specificity to enable the trial court to conclude that the contested issues of fact exist;  the defendant's initial motion seeking an evidentiary hearing plainly did not meet this standard.  D.W. Nelson, Thompson, and Trott (author), Circuit Judges. AFPD J. Lambrose of Las Vegas, NV, for the defendant-appellant;  AUSA P. Greiman of Las Vegas, NV, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

46)  EVIDENCE / PLEAS:  USA v. Ruiz, 99-10224 (9th Cir. Oct. 18, 2000).  Where, as here, there is credible evidence that the defendant's change of mind underlying his desire to withdraw his guilty plea is not motivated by a co-defendant's sentence but by another circumstance, such as potentially exculpatory evidence, he should be permitted to withdraw his plea for "any fair and just reason."  Schroeder, Hawkins (author), Fisher, Circuit Judges.  J. Garland of Fresno, CA, for the defendant-appellant;  AUSA K. Rooney of Fresno, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

47)  CRIMINAL PROCEDURE:  Shewfelt v. State of Alaska, 99-35647 (9th Cir. Oct. 2, 2000).  It was harmless error to fail to provide a defendant with the opportunity to be present at a playback of trial testimony where the government showed that no improper conduct occurred during the playback proceedings and attorneys for both sides had agreed to the playback.  Browning, B. Fletcher and Gould, Circuit Judges.  Per Curiam.  AFD M. Taggart of Anchorage, AK, for the appellant;  W. Hawley of Anchorage, AK, for the appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

48)  INFORMANT CREDIBILITY JURY INSTRUCTIONS: USA v. Holmes, 99-10427 (9th Cir. Oct. 10, 2000).  For a District Court to give Ninth Circuit Model Criminal Jury Instruction 4.10.1 on the credibility of an informant-witness, it is not necessary that the information provided by the witness be in the form of testimony.  Thompson (author), T.G. Nelson, and Silverman, Circuit Judges.  K. Noel of San Francisco, CA, for the defendant-appellant;  M. Kane of San Francisco, CA, for the plaintiff-appellee.    (Download the full text of this decision at www.ce9.uscourts.gov/) 

49)  DOMESTIC VIOLENCE / POSSESSION OF FIREARMS: USA v. Hancock, 99-10533 (9th Cir. Oct. 26, 2000).  In a prosecution under 18 USC Sec. 922(g)(9) for possession of firearms after being convicted of misdemeanor crimes of domestic violence, the government does not have to prove that the defendant knew it was illegal to possess firearms;  the requirement of knowledge in Sec. 924(a) refers only to knowledge of possession.  Aldisert, Graber (author), and Fisher, Circuit Judges.  AFPD J. McClellan of Phoenix, AZ, for the defendant-appellant;  AUSA F. Battista of Phoenix, AZ, for the defendant-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

50)  SENTENCING:  USA v. Mondragon, 99-30329 (9th Cir. Oct. 3, 2000).  A prosecutor who offered comments about the defendant's prior criminal conduct of which the sentencing judge was already aware, violated a plea agreement to make no recommendations regarding sentence; as the government breached the plea agreement, the USCA remanded for resentencing.  B. Fletcher and Tashima, Circuit Judges, and Duplantier (author), District Judge.  AFD J. Rhodes of Missoula, MT, for the defendant-appellant;  AUSA K. McLean of Missoula, MT, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

51)  SENTENCING:  USA v. Upshaw, 99-10381 (9th Cir. Oct. 2, 2000).  A conviction for assault that resulted in serious bodily injury in violation of 18 USC Secs. 1153 and 113(a)(6) was sufficient to require the sentencing court to impose an upward sentence adjustment for serious bodily injury under USSG Sec. 2A2.2(b)(3)(B).  Thompson, T.G. Nelson, and Silverman, Circuit Judges.  Per Curiam.  P. McGillicuddy of Phoenix, AZ, for the defendant-appellant;  AUSA J. Lodge of Phoenix, AZ, for the plaintiff-appellee.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

52)  SENTENCING:  USA v. Archdale, 99-30297 (9th Cir. Oct. 4, 2000).  A sexual abuser of a minor who has known his victim since she was an infant and lives in the same house with her, should know that she is an "unusually vulnerable" victim, in the sense required by USSG Sec. 3A1.1, due to her mental condition—she was "cognitively delayed, had borderline intelligence, and participated in special education classes." In addition, the district judge had the opportunity to observe the minor during her testimony and evaluate her vulnerability first hand; his finding is entitled to deference  B. Fletcher and Tashima, Circuit Judges, and Duplantier (author), District Judge.  K. Varnes of Billings, MT, for the defendant-appellant;  AUSA K. Klaus of Billings, MT, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

53)  SENTENCING:  USA v. Rodrigues, 99-10404 (9th Cir. Oct. 26, 2000).  The restitution of profits from lost corporate opportunities is not authorized under the Victim Witness Protection Act.  Thompson, T.G. Nelson and Silverman (author), Circuit Judges.  N. Wilder of San Francisco, CA, for the defendant-appellant;  AUSA J. Wilson of San Francisco, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

54)  SENTENCING / RESTITUTION:  USA v. Jackson, 99-50302 (9th Cir. Oct. 12, 2000).  As part of a criminal sentence, a Dis-trict Court may not order that undistributed funds from an ERISA pension plan be used to make immediate payment of restitution, unless the crime involves the ERISA pension plan in question and restitution is ordered to that plan.  Pregerson, W. Fletcher (author), and Gould, Circuit Judges.  K. Kahn of Los Angeles, CA, for the appellant;  D. Scheper of Los Angeles, CA, for the appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

55)  SENTENCING:  USA v. Willard, 99-10534 (9th Cir. Oct. 25, 2000).  In a federal prosecution for attempting to intimidate a witness, the defendant, the mother of the witness, was not "in a position of public or private trust" within the meaning of USSG Sec. 3B1.3, which provides an upward adjustment for abuse of a position of trust in the commission of a crime;  the mother attempted to convince her daughter not to testify against her father who had been charged with taking the daughter from one state to another for the purpose of sexually abusing her.  Aldisert, Graber (author), and Fisher, Circuit Judges.  B. Nix of Fresno, CA, for the defendant-appellant;  AUSA D. Rice of Fresno, CA, for the plaintiff-appellee.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

56)  SENTENCING:  USA v. Patterson, 99-50739 (9th Cir. Oct. 31, 2000).  When supervised release is imposed as part of a sentence and then revoked in subsequent proceedings, the resulting confinement is "by virtue of" the original conviction, and therefore, USSG Sec. 2P1.1(a)(1) applies.  Reinhardt, T.G. Nelson, and Silverman (author), Circuit Judges.  M. Garcia of San Diego, CA, for the de-fendant-appellant;  AUSA M. Edelman of San Diego, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

57)  JUROR MISCONDUCT:  Sassounian v. Roe, 98-56747 (9th Cir. Oct. 26, 2000).  In a state murder case, a juror committed prejudicial misconduct by introducing into "special circumstances" deliberations a non-evidentiary telephone call linking the caller's terrorist organization to the defendant and suggesting a motive for the victim's killing;  dissenting in part, Judge Silverman disagreed with the majority's analysis of the harmfulness of the jury misconduct: the petitioner, Judge Silverman thought, did not carry his burden of proving that the phone call incident had a substantial and injurious effect on the verdict.  Thomas, Silverman (dissenting in part), and Wardlaw (author), Circuit Judges.  C. Sevilla of San Diego, CA, for the petitioner-appellant;  D. Glassman of San Diego, CA, for the respondents-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

58)  HABEAS CORPUS:  Morris v. Woodford, 99-99028 (9th Cir. Oct. 5, 2000).  The California Supreme Court's denial of a defen-dant's second state habeas petition as "untimely" under In re Clark, 855 P.2d 729 (Cal. 1996), did not bar federal review of claims raised in that petition as the "untimeliness bar from Clark is not an independent and adequate state-law ground.  Ferguson, Graber (author), and W. Fletcher, Circuit Judges.  M. Bachers of San Francisco, CA, for the petitioner-appellant;  W. Campbell of Sacra-mento, CA, for the respondent-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

 1)  INTELLECTUAL PROPERTY: Corporate Visions, Inc. v. Mandato, 00-16214 (9th Cir. Oct. 27, 2000) (unpublished).  Pregerson, Kleinfeld, and Gould, Circuit Judges.
           On Corporate Visions' request, the District Court for Nevada, Judge Reed presiding, granted, a preliminary injunction preventing Mandato, Massat and Presentations L!ve, from soliciting Corporate Visions customers, in violation of Mandato's and Massat's employment agreements, and from misappropriating Corporate Visions' trade secrets and copyrighted materials.  The USCA affirmed but remanded.  It could not say that the District Court abused its discretion in concluding that Corporate Visions made a combined showing of probable success on the merits and the possibility of irreparable injury.  But as Corporate Visions acknowledged, the District Court did not consider the question of security to be provided by Corporate Visions in connection with the preliminary injunction.  The USCA thus affirmed the preliminary injunction but remained with instructions that the District Court consider the proper amount of security, if any, to be provided by Corporate Visions during the pendency of the preliminary injunction.

2)  INTELLECTUAL PROPERTY: Rappoport v. Ovitz, 99-35530 (9th Cir. Oct. 16, 2000) (unpublished).  Pregerson, Kleinfeld, and Gould, Circuit Judges.
       The District Court for Oregon, Magistrate Judge Jelderks presiding, entered summary judgment in favor of the defendants in Rappoport's action for copyright infringement.  The USCA affirmed.  First, Rappoport relied upon examples of similarities between images from his videotape and the alleged infringing motion picture to show the extrinsic similarity of the works.  However, citing Litchfield v. Spielberg, 736 F.2d 1352 (9th Cir. 1984), the USCA noted that "While we have relied on lists of similarities in the past for illustrative purposes, they are inherently subjective and unreliable, and we are particularly cautious where, as here, the list emphasizes random similarities scattered throughout the works."  Because Rappoport demonstrated only random similarities, there is no substantial similarity between the works and any similarities in plot exist only at the general level for which Rappoport cannot claim copyright protection.  The District Court thus properly granted summary judgment.  Rappoport's contention that the District Court erred by refusing to consider whether he had a protected interest in a videotape of compiled movie clips lacked merit.  Second, the USCA declined to consider the discovery issues raised by Rappoport for the first time on appeal.  Finally, the USCA found no merit in Rappoport's contention that the District Court erred in awarding the defendants costs, citing USA v. Loya, 807 F.2d 1483 (9th Cir. 1987) for the proposition that issues raised in a brief which are not supported by legal arguments are deemed abandoned.

3)  CORPORATIONS / INTELLECTUAL PROPERTY:  Crusaders Productions, Inc. v. Henderson, 99-55442 (9th Cir. Oct. 12, 2000) (unpublished).  Pregerson, W. Fletcher, and Gould, Circuit Judges.
        On cross appeal, Felder first argued that the District Court for the Central District of California, Judge Matz presiding, lacked jurisdiction because he, as a 50% shareholder in Crusaders Productions, Inc. ("CPI"), did not authorize CPI to institute this suit.  Although Felder used the word "standing," this is actually an authority to sue defense, not a bar to the District Court's exercise of jurisdiction.  Felder's jurisdiction argument lacks merit because "the question of a litigant's capacity or right to sue or be sued generally does not affect the subject matter jurisdiction or the District Court."  Second, as to the authority to sue defense, well-settled case law establishes that a suit filed on behalf of a corporation by one 50% shareholder against another must be brought as a shareholder's derivative action, and cannot be maintained as a direct action in the name of the corporation.  Accordingly, Sample did not have the authority to institute this action brought by CPI against Felder.  However, Felder raised this defense for the first time in his response to CPI's motion for entry of a final judgment.  Because an authority to sue defense must be raised in the responsive pleading or by motion before pleading, the District Court did not abuse its discretion when it found that Felder waived this defense.  Third, the District Court ruled that in signing the 1976 agreement, Henderson did not relinquish his right to use the name "The Jazz Crusaders."  The 1976 agreement specified that Henderson was to relinquish the rights to any and all assets of CPI, including the name "The Crusaders."  The agreement made no mention of the name "The Jazz Crusaders."  In the absence of an express provision transferring Henderson's interest in the name "The Jazz Crusaders," the District Court properly concluded that Henderson's separation contract did not cut off his right to use the name "The Jazz Crusaders."  Fourth, the District Court rejected CPI's contention that it owns the mark "The Jazz Crusaders."  The District Court reached the correct conclusion on the trademark-related claims, but for an incorrect reason.  IN 1970, the Jazz Crusaders changed its name to "The Crusaders" and incorporated as "Crusaders Productions, Inc."  The District Court concluded that, on the termination of the partnership, trademark rights to the name "Jazz Crusader" were held non-exclusively by each member of the band.  For this reason, the court granted summary judgment for the appellant trademark claims against the appellees.  The correct rule is that the trademark name cannot be used by the individual partners, but continues to belong to the partnership.  Therefore, the dispositive question is whether there is any evidence that the name "The Jazz Crusaders" was transferred to CPI upon the termination of the partnership.  The USCA held that no such evidence exists.  The transfer of assets from the partnership to CPI upon its incorpo-ration made no reference to CPI's ownership of the name "The Jazz Crusaders."  The District Court did not err in granting summary judgment to the appellees on the trademark-related claims.  Furthermore, having decided that CPI was unlikely to succeed on the merits of its trademark-related claims, the District Court's denial of injunctive relief to CPI was also appropriate.  Fifth, CPI argued that the District Court erred in concluding that Felder and Henderson did not abandon the name "The Jazz Crusaders."  It is undisputed, however, that Felder and Henderson continued to receive royalties from recordings of "The Jazz Crusaders."  Continuing to receive royalties is certainly evidence of intent not to abandon a name.  Therefore, the District Court did not err in concluding that Felder and Henderson did not abandon the name "The Jazz Crusaders."  Sixth, the District Court erred in granting summary judgment to CPI on its breach of fiduciary duty claim against Felder.  Even though Felder owed a fiduciary duty to CPI because he was a director and officer, the record does not support the conclusion that Felder breached that duty, nor that his alleged breach caused CPI actual injury.  Both breach and actual injury are required under California law to establish a breach of fiduciary duty.  The only facts in the record to support these elements are that Felder and Henderson recorded two albums and performed live under the name "The Jazz Crusaders";  that these new "The Jazz Crusaders" albums can be found in the same section as CPI's "The Jazz Crusaders" albums; and that Felder and Henderson made money from performing.  There is no evidence to establish that Felder and Henderson's new Jazz Crusaders albums and performances compete with CPI's old Jazz Crusaders albums, or that CPI has lost revenue as a result of the new Jazz Crusaders.  Indeed, in seeking to make its case for damages at trial, CPI put on no evidence of the loss it had suffered as a result of Felder's alleged breach.  The USCA thus held that, as a matter of law, Felder did not breach his fiduciary duty to CPI by performing and recording under the name "The Jazz Crusaders."  Accordingly, the USCA dissolved the injunction preventing Felder from using the name "The Jazz Crusaders."  Because it held that Felder did not breach his fiduciary duty to CPI, the remaining claims are moot.

4)  INSURANCE / INTELLECTUAL PROPERTY: Franklin Miller Inc. v. Commerce & Industry Insurance Company, 99-55199 (9th Cir. Oct. 16, 2000) (unpublished).  O'Scannlain, Fernandez, and Rawlinson, Circuit Judges.
        Franklin Mill, Inc. ("FMI") sought reversal of summary judgment on the basis that the underlying patent infringement lawsuit triggered a duty to defend by Commerce & Industry Insurance Company ("Commerce") and Hartford Casualty Insurance Company ("Hartford") under the advertising injury provisions of the insurance policies.  Under California law, which applied to this diversity action, words of an insurance policy are to be interpreted according to their ordinary meaning, and if the contractual language is clear and explicit, it governs.  A provision of an insurance is ambiguous only when, on its face, it is fairly susceptible to two different interpretations, both of which are reasonable.  The insurance policy provisions are unambiguous.  They provide coverage for advertising injuries arising out of the "misappropriation of advertising ideas or style of doing business" or "infringement of copyright, title, or slogan."  The provisions do not specifically refer to patent infringement.  The District Court for the Central District of California, Judge Snyder presiding, correctly ruled that the patent infringement claims against FMI did not arise out of "advertising injure" offenses and that FMI was not entitled to insurance coverage.  As a result, Commerce and Hartford did not have a duty to defend FMI in the under-lying litigation.

5)  INSURANCE:  Greene v. Allstate Insurance Company, 99-55518 (9th Cir. Oct. 19, 2000) (unpublished).  Tashima and Tallman, Circuit Judges, and Alsup, District Judge.
           The Greenes sued their insurance company for breach of contract and breach of the implied covenant of good faith and fair dealing under their homeowners policy.  Their home and personal property had been damaged during the 1994 Northridge earthquake and further damage resulted from the flooding of their temporary storage unit.  Allstate moved for summary judgment.  After hearing oral argument, the District Court for the Central District of California, Judge Collins presiding, granted Allstate's motion in its entirety.  The Greenes appealed.  Under the Federal Rules of Civil Procedure, the party moving for summary judgment has the burden of establishing that there is "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."  FRCP 56(c).  However, if the non-moving party has the burden of proof at trial, then the moving party does not have the burden of producing any evidence showing the absence of a genuine issue of material fact.  The burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving party's cases.  Then, the court must view the evidence presented to establish these elements "though the prism of the substantive evidentiary burden."  Anderson v. Liberty Lobby, Inc., 447 US 242 (1986).  In response to a motion for summary jugment, the adverse party may not rest on simple allegations or denials of the moving party's pleadings.  Instead, "the adverse party's response…must set forth specific facts showing that there is a genuine issue for trial."  FRCP 56(e).  There must be evidence to support a jury finding for the adverse party.
           The Greenes admit that they did not submit a formal, sworn proof of loss within 60 days, as expressly required by the contract, for their remaining earthquake contents damages.  They thus necessarily rely upon the doctrines of waiver and estoppel to avoid the contractual condition precedent to their insurance claim.  Under California law, waiver requires the insurer to intentionally relinquish its right to deny coverage.  Several documents in the record establish that Allstate did not intentionally waive its right to deny coverage.  The Greenes' claim of estoppel similarly failed because there was no evidence that Allstate misrepresented its requirement of additional documentation to process claims under the contract.  In fact, the record shows that it repeatedly requested additional information and documentation.  Finally, the Greenes claimed that Allstate breached its implied duty of good faith and fair dealing.  An insurer acts in bad faith when it unreasonably, or without proper cause withholds benefits.  While questions of reasonableness are usually questions of fact for the jury, reasonableness inquiries become a question of law when, for example, no reasonable jury could differ.  The Greenes' pleadings before the District Court failed to identify any specific conduct to support their bad faith claim.  As a result, the District Court combed the record (unsuccessfully) in search of facts that could enable a reasonable jury to conclude that All-state acted in bad faith in disbursing funds under the insurance contract.  Under relevant case law, "breach of the implied covenant of good faith and fair dealing involves something beyond breach of the contractual duty itself."  Because there was no breach of contract, the Greenes' breach of good faith claims based on the same facts similarly failed.  The only bad faith claim independent of the breach of contract cause of action is that Allstate unreasonably delayed payment on the Greenes' additional living expenses.  Here again, the record supports the District Court's conclusion that the Greenes did not offer sufficient evidence from which a reasonable jury could conclude that Allstate acted in bad faith.  The Greenes did not set forth specific facts demonstrating an issue for trial or the claims of waiver, estoppel, or bad faith in the processing of their damages claims under their homeowners policy.  Accordingly, the District Court's grant of summary jugment for Allstate was proper.

6)  CORPORATIONS / SERVICE OF PROCESS: The Koa Fire & Marine Insurance Co. v. Asiana Airlines, 99-15807 (9th Cir. Oct. 17, 2000) (unpublished).  D.W. Nelson, Thompson, and Trott, Circuit Judges.
           Koa Fire & Marine Insurance Company, Nippon Express Company, and Nihon Micro Coating Company appealed an order of the District Court for the Northern District of California, Judge Conti presiding, which set aside a March 19, 1997 default judgment against Asiana Airlines.  The default judgment was entered after Asiana failed to respond to a complaint served on Sean Soonsok Kang, a financial analyst for Asiana who is not authorized to receive process on behalf of the corporation.  Appellants claim that at the time of service, an unidentified Asian employee indicated that Kang was authorized to accept service of process for Asiana.  The District Court rejected the appellants' argument that the employee's statement gave Kang ostensible authority to accept process.
        The USCA affirmed.  Under FRCP 4(h)(1), whether service was proper must be analyzed under both state and federal law.  In applying the federal rule, the USCA considers whether process was served on a "representative so integrated with the corporation that he will know what to do with the papers" and whether the employee hold such a position as to make it "fair, reasonable and just" to imply his authority to accept service of process.  The District Court found that Kang's job did not include the type of managerial responsibility that would make it just to imply authority to accept service of process.  The appellants do not deny that Kang possesses no managerial responsibility at Asiana, nor do they point to other evidence indicating that the District Court's ruling was an abuse of discretion.  Under California law, a corporation may be served by delivering copies of the summons to "a person authorized by the corporation to receive service of process."  Cal. C. Civ. Proc. Sec. 416.10.  The appellants argue that service of process was proper under California law because Kang was a "person authorized by the corporation to receive service of process" under the doctrine of ostensible authority discussion in Pasadena Medi-Center Associates. v. Superior Court, 511 P.2d 1180 (Cal. 1973).  Under Pasadena Medi-Center, "Ostensible authority is such as a principal, intentional or by want of ordinary care, causes or allows a third person to believe the agent to possess."  Here, neither Kang nor the unidentified employee who mistakenly indicated that Kang was authorized to accept process were principals upon whose representations the appellants were entitled to rely under the doctrine of ostensible authority.  The District Court thus did not abuse its discretion in setting aside the default judgment.

7)  SECURITIES LAW: Lawrence v. Zilog, Inc., 99-15778 (9th Cir. Oct. 18, 2000) (unpublished).  Kozinski, T.G. Nelson, and Wardlaw, Circuit Judges.
          Plaintiffs-appellants Lawrence, Liberman, Spellman, and Pitts appealed an order of the District Court for the Northern District of California, Judge Fogel presiding, that dismissed their First Amended Complaint ("FAC") for violations of Sec. 10(b) and 20(a) of the Securities Exchange Act of 1934 and SEC Rule 10b-5.
           The USCA affirmed.  The District Court correctly concluded that the alleged misrepresentation regarding the "definitive merger agreement" was a "forward-looking statement" for the purpose of the appellants' claims under Sec. 10(b) and Rule 10b-5.  Forward-looking statements include those that contain a projection of capital structure, or other financial items," and those that are statements of future performance.  The appellants allege that Zilog's announcement of a "definite" merger that "ensured" that share-holders would receive $25 per share was misleading.  This statement was, in effect, a prediction that a particular form of merger would go forward without any future financial troubles requiring the parties to renegotiate its terms.  As such, it was a projection of both capital structure and future economic performance, and thus was forward-looking.  Because the alleged misrepresentation is a forward-looking statement, the appellants were required to plead with particularity facts giving rise to a strong inference that the defendants acted with actual knowledge that the statement was false or misleading.  The USCA rejected the appellants' contention that a lower scienter standard applies because of the statutory exception for statements made in connection with a going private transaction, or in connection with a tender offer, because this deal was neither.  The transaction was not a "going private transaction" because it did not involve the purchase of securities by their issuer or persons controlled by, controlling, or under common control with the issuer.  Nor is the merger agreement between Zilog and TPG a "tender offer."  The District Court did not err in dismissing the action because the ap-pellants did not plead, in great detail, facts that constitute strong circumstantial evidence that the appellees actually knew (or were deliberately reckless in failing to know) that any gap between TPG's knowledge and Zilog's future finances made it likely that TPG would abandon the deal prior to consummation.  The appellants primarily alleged that the announcement wasmisleading because Zilog knew that TPG was materially under-informed about particular adverse circumstances facing Zilog's business:  (a) the technological obsolescence of one of Zilog's products, (b) Zilog's inability to respond to this technological shift because of inadequate investment in research and development, and (c) a major customer's decision to phase out use of the outdated product.  The FAC itself revealed, however, that sometime after June 5, 1997, but before the definitive merger agreement was si gned, TPG undertook a confidential due diligence investigation.  Further, the FAC indicates that previously TPG had been given the opportunity to examine certain non-public information regarding the Company, including financial projections through fiscal 1998.  Although the FAC assets conclusorily that "desperate to hurriedly consummate a deal with [TPG or its rival bidders], Zilog misrepresented the true financial status of Zilog's business in their due diligence disclosures," it does not state in any detail what information about Zilog's industry and customers was gained from this due diligence and how Zilog knew it was inadequate.  In fact, the appellants' own pleadings indicate that six months before Lucent announced it was phasing out the product, an insider familiar with Zilog's business already could tell that Lucent's business would be lost.  Additionally, it was no secret that Zilog's business was in decline, the company's profits having diminished by 60% between the first quarter of 1996 and the first quarter of 1997.  The pleadings do not allege with particularity facts giving rise to a strong inference that the appellees knew that TPG's information deficit was so great that it would cancel or renegotiate the deal upon learning Zilog's true financial situation.  The appellants also noted that during the months leading up to the merger agreement, two reports of likely adverse future economic performance were made to the Zilog board.  As to the June report, the appellees assert:  "these material facts were never disclosed to the bidders or made public by the defendants."  But they do not explain with particularity how appellees knew that this information was so far out of line with the information being reviewed by TPG that TPG was likely to abandon the deal upon disclosure.  The July report is described in the complaint as nothing more that what could have been anticipated from otherwise available data:  it "confirmed what [the appellees] had known since late 1996, that order imputs for the Company's datacom products from Lucent and others were materially slowing and would continue to do so throughout the fiscal year until the ma-jority (approximately 70-80%) of its datacom controller chip products were no longer being purchased."  Again, the appellants do not plead in great detail facts indicating that the appellees knew that this information, available to Zilog for over seven months before the announcement of the definitive deal, was not known to or deducible by TPG.  The appellants also claim that various statements made after the original announcement of the definitive agreement are actionable misstatements or omissions.  First, the appellants point to a number of upbeat statements to the press in the week after the merger announcement, and to the Zilog's August 12 Form 10-Q.  These statements are challenged for substantially the same reasons as the original announcement.  As no additional "actual knowledge" is alleged to have arisen that week, these allegations are insufficient for the same reason as the primary allegation.  Second, the appellants allege that when Zilog released its adverse, preliminary third quarter results on September 29, 1997, TPG "informally told Zilog that it was considering termination" of the agreement, and that thereafter Zilog made false statements and failed to make necessary disclo-sures regarding whether the deal was still "definitive."  Appellants do not even attempt to plead with particularity that the appellees had actual knowledge of this informal notification.  Because all of the named plaintiffs purchased their shares on or before October 8, 1998, they failed to stated a claim as to the subsequent alleged misrepresentations.  As no class was certified in this case, and the named plaintiffs lack a viable claim, dismissal was proper.  As the appellants' claim under Sec. 10(b) failed, their claim under Sec. 20(a) of the Act also failed.

8)  BANKRUPTCY / CREDIT CARD DEBT:  In re Fraschilla, 99-56364 (9th Cir. Oct. 30, 2000) (unpublished).  Schroeder, Beezer, and Paez, Circuit Judges.
               Creditor and appellant American Express Travel Related Services Company filed a complaint in Bankruptcy Court seeking to have certain of Fraschilla's credit card debt marked nondischargeable under 11 USC Sec. 523(a)(2)(A).  When the debtor failed to respond or appear, American Express obtained entry of a default and then sought entry of a default judgment.  The Bankruptcy Court denied the motion for default judgment and entered jugment for the absent debtor.  On appeal, the Bankruptcy Appellate Panel reversed and remanded for entry of default judgment.  On remand, the Bankruptcy Court refused to enter a default judgment for American Express on the grounds that Ninth Circuit decisions subsequent to the BAP's mandate had changed the relevant legal test.  The Bankruptcy Court instead set the matter for an evidentiary hearing.  At the "prove-up" hearing, American Express refused to present additional evidence and again requested entry of a default judgment.  The Bankruptcy Court found that American Express' evidentiary showing did not support entry of a judgment in its favor and entered judgment for the debtor.  American Express appealed once again to the BAP, which this time affirmed the Bankruptcy Court's denial of a default judgment in a published opinion, 235 B.R. 449 (9th Cir. BAP 1999).
            The USCA affirmed, finding that the intervening controlling authority exception applied and that the Bankruptcy Court was justified in departing from the BAP's mandate.  The law concerning nondischargeable credit card debt was changed by two cases:  In re Eashai, 87 F.3d 1082 (9th Cir. 1996), and In re Anastas, 94 F.3d 1280 (9th Cir. 1996), both decided after the issuance of the BAP's mandate and before rehearing in the Bankruptcy Court.  The change in law, while not drastic, was sufficient for the Bankruptcy Court to conclude that the BAP's mandate to enter a default judgment in favor of American Express was no longer correct.  In Eashai, the USCA noted that the prior test from In re Dougherty, 84 B.R. 653 (9th Cir. BAP 1988), had been criticized because it did not consider all of the common law elements of fraud, particularly, misrepresentation and reliance.  Eashai, while affirming the BAP decision be-low, held that courts must look not only at the twelve Dougherty factors (which go to the debtor's intent) but must also examine whether the creditor has proven "the other elements of common law fraud, including a false representation, justifiable reliance, and damages.  Later, Anastas made the point:  "as we emphasized in Eashai, the other elements of fraud normally required in section 523(a)(2)(A) cases also apply in the case of credit card debt."  Anastas also emphasized the need to make an actual finding regarding intent, noting that "the hopeless state of a debtor's financial condition should never become a substitute for an actual finding of bad faith."  The USCA thus agreed that the net effect of the two decisions was to change the understanding of the law of credit card non-dischargeability in the Circuit.  However, one issue remained:  even if the intervening law changed, did the Bankruptcy Court abused its discretion by refusing to grant default judgment on the basis of the complaint, declarations, and other documents submitted by American Express?  Several factors supported the Bankruptcy Court's refusal to enter a default judgment.  American Express provided limited evidence of the debtor's bad faith and failed to address many of the twelve Dougherty factors.  It relied primarily on the fact that $24,812.24 of charges were made in 25 days, that the account had been in good standing, and that no payments were made after that time.  Anastas warns that a simple inability to pay is insufficient to show bad faith.  American Express did not discuss whether similar sums were charged in the previous 22 years.  It also did not discuss the debtor's financial conditions, his financial sophistication, or his employment status.  Finally, the length of time (five months) between the credit card charges and the filing for bankruptcy suggests that the debtor might not have intended to file for bankruptcy at the time he incurred the relevant charges.  The Bankruptcy Court thus did not abuse its discretion by refusing to grant a default judgment for American Express.

9)  BANKRUPTCY:  In re The Circle K. Corporation, 99-16046 (9th Cir. Oct. 17, 2000) (unpublished).  Schroeder, Beezer, and Paez, Circuit Judges.
           This decision concerns two appeals arising out of post-confirmation claims that there was fraud in connection with the proceedings leading up to the confirmation of Circle K's reorganization plan in 1993.  The USCA previously dismissed an appeal by appellant Phelps from the confirmation order on grounds of mootness.  The Bankruptcy Court, affirmed by the Bankruptcy Appellate Panel, held that Phelps' action to revoke the confirmation was moot, and the USCA agreed.  Although the fraud complaint was filed within 180 days of the confirmation in accordance with 11 USC Sec. 1144, no stays of the subsequent, extensive proceedings required under the confirmation order were ever obtained.  The Bankruptcy Court correctly ruled that here, as in other attempts to seek review of a Chapter 11 reorganization plan, the challenge must be dismissed as moot when the plan has been so far implemented that it is im-possible to fashion effective relief for all concerned.  The Constitution limits federal courts to deciding actual controversies by a judg-ment which can be carried into effect.
             In the alternative, Phelps sought to recover damages under 11 USC Sec. 105 which grants the general power to the Bankruptcy Court to issue orders to carry out the purposes of the Bankruptcy Code.  That statute does not create a private remedy for damages arising out of fraud alleged in connection with the confirmation of a reorganization plan.  A damages remedy for fraud under Sec. 105 would be inconsistent with the revocation remedy provided by Sec. 1144.  Appellant Krim sought class certification in order to pursue claims arising out of the same alleged fraud.  His class action claim is entirely dependent upon the merits of the fraud alleged by Phelps, and as Phelps' appeal is without merit, Krim's fails as well. 

10)  BANKRUPTCY:  In re Bonham, 99-35357 (9th Cir. Oct. 4, 2000) (unpublished).  D.W. Nelson, Reinhardt, and Thomas, Circuit Judges.
           The District Court for Alaska, Judge Singleton presiding, vacated and remanded a Bankruptcy Court's order denying a trustee's FRCP 60(b) motion to set aside the dismissal of a voluntary bankruptcy case.  Investors of the Ponzi scheme at issue appealed.  The USCA vacated with instructions, finding that the trustee's appeal of the dismissal of his Rule 60(b) motion moot in light of In re Bonham, 98-36081 (9th Cir. Oct. 4, 2000) in which the USCA reversed the District Court's determination that the Bankruptcy Court's order of substantive consolidation of the debtor's personal assets with those of two non-debtor corporations was non-final under 28 USC Sec. 158(d).  [See summary of published opinions #5 above.] The USCA ordered the District Court to reinstate the Bankruptcy Court's order of substantive consolidation after it determined that substantive consolidation nunc pro tunc was proper.

11)  BANKRUPTCY:  In re Abrams, 99-55463 (9th Cir. Oct. 31, 2000) (unpublished).  B. Fletcher, Thomas, and Wardlaw, Circuit Judges.
            Under Cohen v. de la Cruz, 523 US 213 (1998), once it is established that specific money or property has been obtained by fraud, "any debt" arising therefrom is excepted from discharge under 11 USC Sec. 523(a)(2).  In the instant case, the Bankruptcy Court calculated the Jaspers' damages based on the actual "property or credit obtain by the false representations."  Its determination of the Jaspers' damages was possibly less than it might have been under Cohen.  The Bankruptcy Appellate Panel affirmed the Bankruptcy Court's findings.  However, because the Jaspers failed to cross-appeal from the BAP's decision, and because any error as to Abrams is harmless because it would not reduce the judgment amount, the USCA declined to upset the BAP's decision.

12)  FALSE CLAIM ACT:  USA v. Reagan, 99-15847 (9th Cir. Oct. 16, 2000) (unpublished).  Reinhardt, Brunetti, and Rymer, Circuit Judges.
           The District Court for the Northern District of California, Judge Breyer presiding, dismissed Reagan's qui tam action brought pursuant to the False Claims Act.
           The indictment was a "public disclosure" and triggered the public disclosure bar of 31 USC Sec. 3730(e)(4)(A) even though Reagan was a source of the information.  Her qui tam suit was brought after the public disclosure and was "based upon" the publicly disclosed information because her claims were the same.  That did not impermissibly cut off her rights to a qui tam recovery, for the court would not have lacked jurisdiction over her action if she were an "original source" of the information.  However, Reagan was not an original source.  As Acting Director of the Management Department, it was her duty to certify the accuracy of the hours worked by Techco's personnel and to report suspected fraud to NCIS under Navy General Regulation 1115.  Thus, she did not "voluntarily" provide the information to the government.  Reagan noted that she unsuccessfully went up the chain of command, but the USCA has held that opposition by superiors does not make an involuntary submission voluntary.  The District Court thus properly concluded that it had no subject matter jurisdiction.

13)  FALSE CLAIM ACT:  Eitel v. USA, 99-35099 (9th Cir. Oct. 16, 2000) (unpublished).  Reinhardt (concurring in the result), Brunetti, and Rymer, Circuit Judges.
           The District Court for Arizona, Judge Browning presiding, dismissed Eitel's qui tam action brought pursuant to the False Claims Act.
           The USCA affirmed.  It agreed with the District Court that the USCA's mandate left the District of Oregon decision that dismissed Eitel's action for lack of jurisdiction in effect.  The USCA neither affirmed nor reversed it.  Thus, upon remand to the District of Arizona, the court properly considered the District of Oregon's decision to be the law of the case, and properly concluded that Eitel established no basis upon which to revisit the ruling.  As the District Court noted, nothing in the record suggests that Miller's declaration, upon which Eitel principally relied to show clear error, was ignored in the District of Oregon;  in any even, it pertains to a different action, it was not argued in opposition to Reagan's motion to dismiss, and it offers no material support for Eitel's contention that he was an original source.  By the same token, there is no indication that Eitel's January 1993 hotline call provided any new direct information that should have caused the District of Arizona court to reconsider the law of the case. In short, the USCA found no abuse of discretion by the Arizona District Court.
             This left for review the merits of the decision dismissing the qui tam action for lack of subject matter jurisdiction.  First, Eitel faults both District Courts for the way each handled the motions before it.  However, there was no reason for the District of Arizona court to hold an evidentiary hearing because it determined only the legal issue of whether the law of the case should be disturbed.  Neither was it inappropriate for the District of Oregon to determine Reagan's jurisdictional motion based on declarations and discovery.  A court may resolve factual disputes based on the evidence presented where the jurisdictional issue is separable from the merits.  Here, the merits of the False Claims Act claim are plainly severable from Eitel's status as an "original source."
          Next, Eitel maintained that the District of Oregon court erroneously concluded that he could not rely on non-public information obtained from insiders to qualify as an original source.  The USCA disagreed.  To be an "original source," a relator must show that he has "direct and independent knowledge of the information on which the allegations are based" and that he "has voluntarily provided the information to the Government before filing" his qui tam action.  There is no dispute that Eitel voluntarily furnished information to the government, but he failed to show that his knowledge of the information upon which his allegations are based was "direct and independent."  Eitel was never employed by any of the contractors.  Although he did a considerable amount of investigative work. his information about misuse of the C-130 program came either from public sources (including a 1991 magazine article, from which he first learned of the Forest Service exchange program, and responses to FOIA requests) or from conversations with Chisum, Grantham, and a "rogue CIA agent."  Here, the relator's knowledge was not direct and independent because he did not discover firsthand the information underlying his allegation of fraud, but rather derived it second hand from others.  As USA ex rel. Devlin v. State of Cali-fornia, 84 F.3d 358 (9th Cir. 1996), is on point and controls, the USCA concluded that the District of Oregon court correctly dismissed the relator's complaint for lack of subject matter jurisdiction.  Even if the District of Oregon court's jurisdictional determination were correct, Eitel maintains, the government's intervention cured the defect.  However, his argument that the suit thereupon become an ac-tion "brought by the Attorney General"—which may be based on publicly disclosed information without being subject to the public disclosure bar—fails because the statutory scheme distinguishes between actions initially brought by the United States and actions initially brought by private parties in which the United States elects to intervene and proceed.  Whether or not the government proceeds with this action, Eitel cannot because he is not an original source.

14)  TORTS:  Tocco v. The Boeing Company, 99-16040 (9th Cir. Oct. 5, 2000) (unpublished).  D.W. Nelson, Thompson, and Trott, Circuit Judges.
           The District Court for Arizona, Judge Strand presiding, entered summary judgment in favor of The Boeing Company.  The USCA affirmed.
           The USCA found that Boeing adequately warned America West about the dangers to personnel who walked alongside 757s during pushbacks.  Boeing provided America West with articles in Airliner magazine discussing the dangers and suggesting using cordless headsets and placing the headset operator in the tug.  It also provided a Service Letter and "Wheels can kill!" poster.  These warnings, the USCA found, were sufficient to satisfy Boeing's duty to warn America West.  America West is a "learned intermediary."  It is a major airline company, has extensive training programs, and is well aware of the dangers involved in pushbacks.  Because America West is a learned intermediary, Boeing's warnings to it were sufficient to discharge Boeing's duty to warn of the dangers in-volved in pushing back 757 aircraft.  This warning satisfied Boeing's duty as to both the strict liability and negligence claims.  The claims that the interphone jack was defectively designed and should have been placed lower on the nose gear or, alternatively, should have been designed to require headset operators to sit in the tug also failed.  The appellants failed to establish a genuine issue of material fact that changing the location of the jack would have prevented Tocco's injury under either a strict liability or negligence theory.  Moreover, whether a person using an interphone system rides in the tug pertains to the use of the system, not its design.  Nor was Boeing negligent in failing to present tow bar manufactures with specifications that interphone jacks be built into the two bars.  The appellants do not cite any legal authority placing such a duty on Boeing.  Although Boeing provides specification for the manufacture of tow bars, in doing so it does not take on the duty of the design and construction of the tow bars. 

15)  TORTS:  Taufa v. Aluminum Company of America, 99-16053 (9th Cir. Oct. 23, 2000) (unpublished).  D.W. Nelson, Thompson, and Trott, Circuit Judges.
            Taufa was injured when his co-workers inserted an aluminum ingot into a furnace.  In the intense heat of the furnace, moisture accumulated in the internal shrinkage cavities of the ingot caused an explosion, spewing molten aluminum on Taufa.  He sued Alcoa, the ingot's maker, based on products liability and negligence.  Alcoa defended on the ground that it had provided Taufa's employer and Taufa with express and adequate warnings about the dangers of such explosions and specifically instructed the employer on how to avoid the danger.  The district court for Arizona, Judge Strand presiding, agreed with Alcoa and granting it summary judgment.
           The USCA affirmed.  Arizona Revised Statute Sec. 12-683(3) states that a defendant is not liable if:  "The proximate cause of the incident giving rise to the action was a use…of the product which…was contrary to any express and adequate instructions or warnings appearing on or attached to the product…, if the injured person knew or with exercise of reasonable diligent care should have known of such instructions or warnings."  Arizona courts apply comparative fault principles to both strict liability and negligence claims.  Thus, a plaintiff's knowledge of the dangers of using a product is significant, but does not necessarily bar him from recovering damages.  But, if a defendant's warnings are express and adequate as a matter of law, the defendant is not liable.  The USCA agreed with the District Court that Alcoa's warnings and instructions were express and adequate as a matter of law.  Alcoa warned Taufa and his employer about the danger of explosions from inserting ingots into a furnace of molten aluminum.  Alcoa also furnished instructions to the employer on methods to minimize the risk of explosions.  Admittedly, Alcoa's instructions did not state that preheating ingots in a separate preheating furnace was the only safe method to avoid the risk of explosions.  Some of Alcoa's instructions proposed alternative drying procedures.  Nevertheless, because Taufa and his employer did not follow any of the prescribed methods of safely using ingots, Alcoa is not liable for Taufa's injuries.  This case is plainly distinguishable from Anderson v. Nissei ASB Machine Co., Ltd., 3 P.3d 1088 (Ariz. Ct. App. 1999), in which Nissei warned Anderson about the dangers of using its product, but it did not provide any instructions on how to use the product safely or to avoid the danger.  Users of the product were left to devise their own safety methods.  Like Nissei, Alcoa warned Taufa's employer about the danger of using its product—that inserting ingots into a furnace without properly drying the cavities could lead to explosion.  However, unlike Nissei, Alcoa also provided specific instructions on how to use the product safely and on how to avoid the danger—either by preheating ingots with a furnace, or by otherwise drying them.  A jury could not reasonably conclude that Alcoa's warnings and instructions were inadequate.  Thus, even with the application of comparative fault principles to the "Express Warnings Defense" of Arizona Revised Statute Sec. 12-683(3), Alcoa is not liable as a matter of law as its warnings were express and adequate.

16)  TORTS:  Shafer v. Wal-Mart Stores, Inc., 99-16912 (9th Cir. Oct. 13, 2000) (unpublished).  Choy, Canby, and Kleinfeld, Circuit Judges.
           This is the second appeal to the USCA in this case from the District Court for Nevada, Judge Pro presiding.  In the first appeal, the USCA affirmed the District Court's determination of liability against WalMart and its award of $1,000,000 to Michelle Caranto for loss of consortium.  The USCA remanded for post-judgment interest for Michelle Caranto and for an itemization and possible recalculation of the District Court's lumpsum award of $3,000,000 to Todd Caranto.  The District Court then revised its judgment but adhered to the total of $3,000,000.  From the amended judgment, Todd Caranto, by his guardian ad litem, Jared Shafer,. appealed and WalMart cross-appealed.  The USCA affirmed in part, reversed in part, and remanded for calculation of additional damages.
           In its order and revised judgment following remand, the District Court did not recalculate damages, but itemized its original award as follows:  $2,050,000 for future medical and attendant care, and $950,000 for loss of future earnings and fringe benefits, and loss of household services.  With one exception, the USCA found these two figures supported by the record and thus not clearly erroneous.  The District Court's award for future medical and attendant care is consistent with the figure offered by Wal-Mart's damages expert.  Under Nevada law, Mr. Caranto is entitled to recover the full cost of whatever attendant care is necessary, including that provided gratuitously by a family member, measured by the reasonable value of the services.  The USCA rejected Wal-Mart's argument that these gratuitous services were accounted for by the District Court in its $1,000,000 award to Mrs. Caranto.  Because the record supported the conclusion that Mr. Caranto requires at least 12 hours of attendant care per day, the USCA affirmed the District Court's legal conclusion in that attendant care gratuitously provided by Mr. Caranto's wife and other family members is not compensable, and remanded for an additional award of damages commensurate with Mr. Caranto's need for attendant care beyond 12 hours per day.  The USCA also affirmed the District Court's computation of $950,000 for loss of future earnings and fringe benefits, together with loss of household services.  The District Court's award for these elements is within the range offered at trial by the various damages experts, and reflects the district court's conclusion that Mr. Caranto likely would not have completed a college degree.  The District Court also found that Mr. Caranto "suffers total and permanent disability," will require medical and attendant care for the rest of his life, has no expectation of gainful employment, and "is about as miserable as a soul can be," all as a result of injuries cause by Wal-Mart.  The USCA thus concluded that the District Court's award of zero damages for pain and suffering, past medical and attendant care, and past wages to Mr. Caranto is unsupported by the record and thus clearly erroneous.

17) MAGNUSON ACT:  Prowler Partnership v. Nat. Marine Fisheries Service, 99-35069 (9th Cir. Oct. 4, 2000) (unpublished).  Goodwin, Alarcon, and McKeown, Circuit Judges.
           Prowler Partnership and Ocean Prowler Partnership (collectively, the "Partnerships") appealed from the summary judgment entered in favor of the National Marine Fisheries Service ("NMFS") by the District Court for Alaska, Judge Sedwick presiding, in an action for judicial review of two administrative decisions.  The Partnerships argue that the sablefish surveys conducted on four NMFS charter expeditions constituted commercial fishing and should count toward their Quota Shares under the Individual Fishing Quota ("IFQ") program.  The USCA affirmed based on the clear language of the Magnuson Fishery Conservation and Management Act.
           The Act excludes from its definition of "fishing," any scientific research activity which is conducted by a scientific research vessel.  The Partnerships do not dispute that the four charter surveys at issue here constituted scientific research activity.  Instead, the Partnership argues that F/V Ocean Prowler and the F/V Prowler were not scientific research vessels because the long-line gear on board each vessel was "fishing gear" rather than scientific equipment.  The expression "scientific research vessel" is not defined in the Act.  In their brief, the Partnership defined a "scientific research vessel" as "a particular type of vessel, presumably the type that is regularly or ordinarily used for scientific research purposes, with scientific research apparatus onboard."  The Partnership concede in their brief that the long-line gear on board their vessels was required for the scientific surveys.  Moreover, it is undisputed that the two vessels were chartered by NMFS for the paramount purpose of using the long-line gear to survey the sable fish stock in the Gulf of Alaska.  It was plainly reasonable for the Office of Administrative Appeals to find that the F/V Ocean Prowler and F/V Prowler were scientific research vessels while chartered by NMFS to do scientific research.  In addition, the clear purpose of the IFQ would be defeated if the Partnership were allowed to accumulate quota shares for the fish caught during their scientific research.  The Act provides that the allocation of fishing privileges "shall be (A) fair and equitable to all such fishermen; (B) reasonably calculated to promote conservation; and (C) carried out in such a manner that no particular individual, corporation, or other entity acquires an excessive share of the privileges."  Almost all of the fish caught on the NMFS charter expeditions were caught in areas of the Gulf of Alaska that were closed at the time to commercial fishing.  Moreover, the partnership claim a total of 3,860,318 qualifying pounds in the four years during which its vessels were chartered to NMFS.  As NMFS correctly stated in the Prowler Initial Administrative Decision, if Quota Shares were awarded to the Partnerships for the fish caught during these expeditions, they would be added to the Quota Share Pools, thus diluting those pools to the economic detriment of all other Quota Share holders whose historic landings have occurred under the regulations that govern commercial fishing.  The USCA agreed with the NMFS that such a result could not have been intended and conclude that the NMFS charter expeditions did not constitute "fishing" under the terms of the Act.  The charter expeditions were thus not "commercial fishing," and thus were not "legal landings" eligible for IFQ.

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