Litigation Update: July 2021

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A monthly publication of the Litigation Section of the California Lawyers Association.

  • Senior Editor, Eileen C. Moore, Associate Justice, California Court of Appeal, Fourth District, Division Three
  • Managing Editor, Julia C. Shear Kushner
  • Editors, Dean Bochner, Reuben Ginsburg, Jessica Riggin, David Williams, Ryan H. Wu, and Greg Wolff
The Ninth Circuit’s Special Rule in Immigration Disputes.

The Ninth Circuit has long applied the following special rule in immigration disputes: In the absence of an explicit adverse credibility determination by an immigration judge or the Board of Immigration Appeals, a reviewing court must treat a petitioning alien’s testimony as credible and true. In one of two cases, a man was detained when trying to enter the country illegally. The man sought to avoid being returned to Mexico on the ground that his life or freedom would be threatened there, but that relief is unavailable for persons who have been convicted of serious crimes. The question for the court was whether or not he had been convicted of a serious crime. The probation report from his prior conviction indicated he locked his 17-year-old girlfriend in his bedroom one evening, caught her trying to escape, dragged her back into the room, threatened to stab her and dump her body in a dumpster, and forced her to have sex with him. The next morning, he repeatedly beat the young woman and stopped only when she begged for her life. Later, when she asked to leave, he dragged her out, threw her against the stairs, and kicked her as she rolled down. Her ordeal lasted nearly 24 hours. Police arrested him days later as he tried to flee his residence. At that time, he admitted to the officers that he chased, grabbed, and punched his girlfriend and prevented her from leaving the house, but he claimed he didn’t hit her “that hard.” At his immigration hearing, the man downplayed the seriousness of the crime. The immigration judge held he was ineligible for relief, relying in part on the version of events in the probation report. The Ninth Circuit applied circuit precedent holding that “ ‘[w]here the [Board of Immigration Appeals] does not make an explicit adverse credibility finding, [the court] must assume that [the alien’s] factual contentions are true.’ ” Reversing, the U.S. Supreme Court explained how cases such as this should proceed . . . without the special credibility rule. (Garland v. Dai (U.S., June 1, 2021) 141 S.Ct. 1669.)

A Tribal Police Officer Has Authority to Detain Non-Indian on Highway that Runs Through a Reservation.

An tribal police officer stopped to assist what appeared to be a stranded motorist parked to the side of a public road that runs through an Indian reservation. The police confiscated guns and drugs and arrested the motorist. In his criminal trial, the motorist challenged the authority of the tribal officer to detain and search a non-Indian on a public highway that runs through a reservation. The district court suppressed evidence of the drugs seized, and the Ninth Circuit affirmed the suppression order. Reversing, the U.S. Supreme Court concluded that the tribal officer had authority to detain and search the motorist, explaining that “a tribe retains inherent sovereign authority to address ‘conduct [that] threatens or has some direct effect on . . . the health or welfare of the tribe.’ ” (United States v. Cooley (U.S., June 1, 2021) 141 S.Ct. 1638.)

Newly Revised Rule 23(e)(2) Requires Federal Courts to Scrutinize Class Action Settlement Agreements.

The Ninth Circuit reversed the district court’s approval of a class action settlement, stating: “We can perhaps sum up this case as ‘How to Lose a Class Action Settlement in 10 Ways.’ The parties crammed into their settlement agreement a bevy of questionable provisions that reeks of collusion at the expense of the class members: Class counsel will receive seven times more money than the class members; an injunction touted by an expert as worth tens of millions of dollars appears worthless; the defendant agrees not to challenge the plaintiffs’ attorneys’ fees amount; any reduction in those fees by the court reverts to the defendant; and on and on. [¶] While courts should not casually second-guess class settlements brokered by the parties, they should not greenlight them, either . . . . We hold that under the newly revised Rule 23(e)(2) standard, courts must scrutinize settlement agreements — including post-class certification settlements — for potentially unfair collusion in the distribution of funds between the class and their counsel.” (Briseño v. Henderson (9th Cir., June 1, 2021) 998 F.3d 1014.)

Expert Relied on Data Produced by a Computer Program.

In a criminal case involving a defendant’s conviction of possession of images of child pornography, the trial court admitted expert testimony where the expert relied on data produced by a computer program. On appeal, the defendant contended the data was case-specific, testimonial hearsay under People v. Sanchez (2016) 63 Cal.4th 665, and that the prosecution failed to establish the computer program was reliable and generally accepted in the scientific community under People v. Kelly (1976) 17 Cal.3d 24, and Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747. Affirming the conviction, the Court of Appeal concluded that “the trial court did not abuse its discretion in determining the [data] were not hearsay in this case because they were not admitted for their truth, so we do not reach the question of whether the [data] are testimonial.” The court added that even if the defendant “were correct that the . . . data constituted hearsay that was also testimonial, its admission was harmless beyond a reasonable doubt.” (People v. Lund (Cal. App. 1st Dist., Div. 4, June 1, 2021) 64 Cal.App.5th 1119.)

Sexual Activity with Treating Doctor Cannot Be Consensual as a Matter of Law.

In a workers’ compensation case, the worker alleged she was sexually abused by the physician who treated her for industrial injuries. The insurance carrier contended the worker’s PTSD, which resulted from her sexual activity with the doctor, was not a compensable injury. The Court of Appeal concluded that the worker “met her burden of proving that her PTSD was a compensable consequence injury that resulted from the treatment for her industrial injuries and that her employment was one of the contributing causes without which her PTSD would not have occurred. We reject the contention that the sexual conduct here was consensual, since as a matter of law a patient cannot consent to sexual contact with his or her physician.” (Applied Materials v. Workers’ Compensation Appeals Board (Cal. App. 6th Dist., June 1, 2021) 64 Cal.App.5th 1042.)

Cop Ran a License Plate for $$$.

A police officer ran a license-plate search in a law enforcement computer database in exchange for money. His conduct plainly flouted his department’s policy, which authorized him to obtain database information only for law enforcement purposes. The officer was charged with and convicted of violating the Computer Fraud and Abuse Act of 1986 (18 U.S.C. § 1030; CFAA), which makes it illegal “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.” The Eleventh Circuit affirmed, concluding the officer violated the CFAA by accessing the law enforcement database for an “inappropriate reason.” Reversing, the U.S. Supreme Court concluded the officer did not violate the CFAA, explaining: “This provision covers those who obtain information from particular areas in the computer—such as files, folders, or databases—to which their computer access does not extend. It does not cover those who, like [the officer], have improper motives for obtaining information that is otherwise available to them.” (Van Buren v. United States (U.S., June 3, 2021) 141 S.Ct. 1648.)


According to their contract, a modeling agency paid a model $3,000 for a one-day photoshoot. The contract provided that the agency would bill the clothing manufacturer, collect the money, and distribute it to the model. All that was done. The model nonetheless sued the manufacturer, contending that under California law, she was entitled to payment on the day she rendered services, and that the failure to pay her that day entitled her to $90,000. The manufacturer cross-complained against the model for fraud. The model filed an anti-SLAPP motion, which the trial court granted. The Court of Appeal vacated the anti-SLAPP order, concluding that “such deceit, if proven at trial, does not entitle her to a bonus.” (Brighton Collectibles, LLC v. Hockey (Cal. App. 2nd Dist., Div. 6, June 3, 2021) 65 Cal.App.5th 99.)

Court Reversed for Refusal to Issue Domestic Violence Protective Order.

A woman seeking a domestic violence restraining order against her former husband claimed that four times during the previous two months, he had called her vulgar names in front of their children, seized her cell phone, demanded that she leave the house, threw her belongings outside, and tried to strike her with his hands. She also stated that he had repeatedly threatened to kill her. The trial court ordered the man not to abuse her and to stay five yards away from her, but denied the woman’s request to order the man to move out of their shared residence, explaining that the woman had not described the alleged abuse in sufficient detail and had failed to provide a legal basis for a move-out order. Reversing, the Court of Appeal held that the trial court’s refusal to consider evidence of post-filing abuse was an abuse of discretion that amounted to prejudicial error, and that her evidence of prefiling abuse was sufficient to support the issuance of a move-out order. (In re Marriage of F.M. and M.M. (Cal. App. 1st Dist., Div. 1, June 3, 2021) 65 Cal.App.5th 106.)

Class Action Alleging Poultry Mislabeling Preempted Under Federal Law.

A consumer purchased chicken from Trader Joe’s. Contending there was more water in the package than the amount listed on the package label, she brought a class action against Trader Joe’s alleging numerous causes of action. The Ninth Circuit affirmed dismissal of the action because her claims were preempted by 21 U.S.C. § 467e, a federal law regulating poultry labeling and retained water measurement protocols. (Webb v. Trader Joe’s Co. (9th Cir., June 4, 2021) 999 F.3d 1196.)

Immigrant Denied Permanent Resident Status Because He Entered the Country Illegally.

Petitioner entered the country illegally. Years later, because of unsafe living conditions in his native country, El Salvador, the United States granted him Temporary Protected Status (TPS), entitling him to stay as long as those conditions in El Salvador persisted. Seeking to become a lawful permanent resident (LPR), he sought adjustment of his status under 8 U.S.C. § 1255. Ruling against the petitioner, the U.S. Supreme Court stated: “Section 1255 generally requires a lawful admission before a person can obtain LPR status. Sanchez was not lawfully admitted, and his TPS does not alter that fact. He therefore cannot become a permanent resident of this country.” (Sanchez v. Mayorkas (U.S., June 7, 2021) 141 S.Ct. 1809.)

Equitable Estoppel Unavailable to Contradict Express Terms of ERISA Plan.

In an Employee Retirement Income Security Act (ERISA) action, the Ninth Circuit reversed after the district court dismissed on the ground of equitable estoppel. “A party, whether a plaintiff or a defendant, cannot use equitable estoppel to contradict the express terms of an ERISA plan in litigation with the plan.” (Wong v. Flynn-Kerper (9th Cir., June 7, 2021) 999 F.3d 1205.)

Filing Complaint in State Court After Dismissal by Federal Court.

In a wrongful death action against the police, the state trial court granted summary judgment in favor of defendants, concluding that the plaintiff failed to timely file her complaint in state court after a federal district court dismissed her federal claims and withdrew supplemental jurisdiction over her state law claims in an earlier federal case. The trial court was persuaded that the 30-day safe harbor in which to refile state law claims afforded by 28 U.S.C. § 1367(d) began to run from the date of the federal district court’s judgment, rather than after plaintiff’s appeal to the Ninth Circuit. Reversing, the Court of Appeal explained that “settled law establishes that section 1367(d)’s tolling provisions extend ‘through appeal to the courts of appeals afforded as a matter of statutory right.’ ” (Sales v. City of Tustin (Cal. App. 4th Dist., Div. 3, June 8, 2021) 65 Cal.App.5th 265.)

Bank Accepted Deposits of Embezzling Employee.

Over the course of a few years, an employee of plaintiff took about $157,000 in checks payable to plaintiff and deposited them via automated teller into his personal account at defendant bank. When plaintiff eventually discovered the embezzlement, it sued defendant for negligence and conversion under California’s version of the Uniform Commercial Code, and for violating the unfair competition law (Bus. & Prof. Code, § 17200), based on those alleged violations. The trial court granted summary judgment to defendant. On appeal, plaintiff argued the trial court erroneously granted summary judgment under Commercial Code § 3405 because defendant failed to meet its burden of establishing that the embezzling employee fraudulently indorsed the stolen checks in a manner required under the statute: “purporting to be that of [his] employer.” Plaintiff further argued that factual disputes about its reasonableness in supervising its employee preclude summary judgment under Commercial Code § 3406. Reversing, the Court of Appeal agreed that defendant had not met its burden. (Severin Mobile Towing, Inc. v. JPMorgan Chase Bank, N.A. (Cal. App. 4th Dist., Div. 1, June 9, 2021) 65 Cal.App.5th 292.)

Tip for Lawyers: When an Appellate Court Asks You to Explain Why You Shouldn’t Be Held in Contempt, Don’t Double Down.

After the Court of Appeal issued its opinion in the case, an attorney filed a petition for rehearing in which he impugned the integrity of both the trial and appellate courts, citing not a single statute or opinion and making no attempt to explain, distinguish, or otherwise reply to the cases or statutes relied upon by either court. The petition for rehearing included: “Our society has been going down the tubes for a long time, but when you see it in so black and white as the opinion in this case . . . .” (You get the picture—a rant.) The Court of Appeal issued an order to show cause why the attorney should not be held in contempt. Instead of apologizing or explaining his earlier filing, the attorney then insinuated that the court’s opinion was the result of political clout. The court lamented it was “confronted with a member of the bar who, after 52 years of practice, believes this is legitimate argument. [¶] Edward Coke, who made the arguments in 1581 that resulted in the Rule in Shelley’s case we all studied so assiduously, knew the necessary distinction between questioning a decision and questioning the institution as, ‘De fide et officio judicis non recipitur question sed de scientia, sive sit error juris, sive facti.’ (Bacon’s Maxim, number 17.)” The court concluded that “[r]espect for individual judges and specific decisions is a matter of personal opinion. Respect for the institution is not; it is a sine qua non.” The attorney was ordered to pay a $2,000 fine, and the clerk was ordered to send a copy of the opinion to the State Bar. (In re Mahoney (Cal. App. 4th Dist., Div. 3, June 10, 2021) 65 Cal.App.5th 376.)

Prisoner Has a Right to Access the Courts.

Plaintiff is a self-represented indigent inmate who appeals from dismissal of a medical malpractice action against defendant doctor, who performed a radial head resection and arthroplasty on plaintiff’s right elbow. He alleged the doctor negligently failed to tighten a screw in the implant, which resulted in the screw coming loose and damaging his elbow joint, cartilage, and surrounding tissue. To help establish his claim, plaintiff filed a motion for appointment of legal counsel and a medical expert. The trial court denied the motion and subsequently found that plaintiff could not rebut the declaration of the defendant doctor’s medical expert without providing medical expert evidence of his own. On this basis, the trial court granted the doctor’s motion for summary judgment. Reversing, the Court of Appeal concluded “the trial did not properly exercise informed discretion with respect to ensuring access to the courts when it denied [plaintiff]’s motion for appointment of a medical expert. The trial court’s statement that it lacked authority to appoint legal counsel requires remand to allow the trial court to consider and clarify which remedies are appropriate in this case to protect [plaintiff]’s right to meaningful access to the court.” (Hulbert v. Cross (Cal. App. 3rd Dist., June 11, 2021) 65 Cal.App.5th 405.)

Battle of the Tech Titans.

After decades of cooperation between two huge tech companies, defendant hired plaintiff’s former CEO, resulting in a disagreement. To resolve matters, the two entered into a settlement agreement. Years of litigation followed. Six months after signing the settlement agreement, defendant announced it would discontinue software development on one of plaintiff’s server platforms. The present dispute centers on whether defendant’s actions violated the agreement and, if so, the appropriate basis for any resulting damages award. A jury found that defendant had breached both the express terms of the settlement agreement and the implied covenant of good faith and fair dealing; it awarded plaintiff $3.014 billion in damages. Affirming the judgment, the Court of Appeal stated: “Specifically, we conclude that the reaffirmation clause requires Oracle to continue to offer its product suite on certain HP server platforms. . . . On the subject of damages, we reject Oracle’s argument that the judgment must be reversed based on violations of its constitutional right to petition and because HP’s expert’s testimony on damages was impermissibly speculative under California law and should have been excluded. Finally, we decide HP has not shown an abuse of discretion in the trial court’s denial of prejudgment interest.” (Hewlett-Packard Co. v. Oracle Corp. (Cal. App. 6th Dist., June 14, 2021) 65 Cal.App.5th 506.)

Prosecuting Agencies Trying to Sort Out Opioid Situation.

Various California prosecutors filed an action against defendants—various pharmaceutical companies involved in the manufacture, marketing, distribution, and sale of prescription opioid medications. The trial court granted a discovery request of a defendant to obtain patient information from two non-party California counties—Los Angeles and Alameda. The two counties filed a petition for extraordinary relief, contending the privacy rights of patients would be violated if they disclosed the requested information. Granting a writ of mandate, the Court of Appeal concluded “that the Johnson & Johnson defendants have failed to demonstrate that their interests in obtaining ‘such a vast production of medical information’ [Citation.] outweigh the significant privacy interests that the nonparty petitioners have identified.” (County of Los Angeles v. Superior Court of Orange County (Cal. App. 4th Dist., Div. 1, June 15, 2021) 65 Cal.App.5th 621.)

Court Declined to Infer an Intent to Arbitrate.

A disagreement arose between a contractor and subcontractor. The contractor moved to compel arbitration. The arbitration “agreement” it cited was contained in a 151-page attachment to the contract between the contractor and the subcontractor, and the “agreement” was between the contractor and the property owner. The trial court denied the motion. Affirming, the Court of Appeal stated: “In the absence of a clear agreement to submit a dispute to arbitration, we will not infer a waiver of a party’s jury trial rights.” (Remedial Construction Services, LP v. AECOM, Inc. (Cal. App. 2nd Dist., Div. 6, June 15, 2021) 65 Cal.App.5th 658.)

Pleading a Private Securities Fraud Action.

The State of Rhode Island filed a private securities fraud action under §§ 10(b) and 20(a) of the Securities Exchange Act of 1934 and SEC Rule 10b-5 against Google LLC, its holding company Alphabet, Inc., and individual defendants. The district court dismissed the action after determining that the complaint failed to allege any material misrepresentation or omission and failed to allege scienter sufficiently. The Ninth Circuit described its task when the case appeared before it: “This appeal raises the question whether, for purposes of a private securities fraud action, the complaint adequately alleged that Google, Alphabet, and individual defendants made materially misleading statements by omitting to disclose these security problems and that the defendants did so with sufficient scienter, meaning with an intent to deceive, manipulate, or defraud.” Reversing, the appeals court stated: “Because the district court erred in sua sponte dismissing Rhode Island’s claims under Rule 10b-5(a) and (c) when Alphabet had not targeted those claims in its motion to dismiss, we reverse dismissal of the claims under Section 10(b) and Rule 10b-5(a) and (c) against all defendants and remand to the district court. [Citations.] We also reverse the dismissal of Rhode Island’s claims under Section 20(a) to the extent those claims depend on claims alleging violations of Rule 10b-5(a) and (c).” (In re Alphabet, Inc. Securities Litigation (9th Cir., June 16, 2021) 2021 WL 2448223.)

Lost Profits Are Damages, Not Restitution Under the UCL.

Optometrists whose practices were located within 20 miles of a LensCrafters location between November 30, 2013 and September 1, 2015 filed a class action against defendant under California’s Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.; UCL). The trial court sustained defendant’s demurrer without leave to amend. Affirming, the Court of Appeal stated: “Lost profits are damages, not restitution, and are unavailable in a private action under the UCL.” (Lee v. Luxottica Retail North America, Inc., (Cal. App. 1st Dist., Div. 2, June 16, 2021) 65 Cal.App.5th 793.)

Church-Run Foster Care Agency May Decline to Place Children with Same-Sex Couples.

The Catholic Church has served the needy children of Philadelphia for over two centuries. In 1798, a priest in the city organized an association to care for orphans whose parents had died in a yellow fever epidemic. During the 19th century, nuns ran asylums for orphaned and destitute youth. When criticism of asylums mounted in the Progressive Era, the church established the Catholic Children’s Bureau to place children in foster homes. Currently, Catholic Social Services (CSS) is a foster care agency in Philadelphia. The city stopped referring children to CSS upon discovering that the agency would not certify same-sex couples to be foster parents due to its religious beliefs about marriage. The city told CSS it would renew its foster care contract with CSS only if the agency agreed to certify same-sex couples. The question presented here was whether the actions of city violated the First Amendment. Ruling in favor of CSS and against the city, the U.S. Supreme Court noted: “The religious views of CSS inform its work in this system. CSS believes that ‘marriage is a sacred bond between a man and a woman.’ ” The high court held: “The refusal of Philadelphia to contract with CSS for the provision of foster care services unless it agrees to certify same-sex couples as foster parents cannot survive strict scrutiny and violates the First Amendment.” (Fulton v. City of Philadelphia, Pennsylvania (U.S., June 17, 2021) 141 S.Ct. 1868.)

Former Slaves May Not Sue Under the Alien Tort Statute.

Plaintiffs are former child slaves who were forced to harvest cocoa in the Ivory Coast in West Africa, working up to 14 hours a day six days a week with only scraps of food to eat. They filed claims under the Alien Tort Statute (28 USC §1350; ATS) against American companies alleging they aided and abetted child slavery by providing assistance to Ivorian farmers. The American companies and the U.S. government argued to the U.S. Supreme Court that the plaintiffs improperly sought extraterritorial application of the ATS. In Sosa v. Alvarez-Machain (2004) 542 U.S. 692, 724, the Supreme Court indicated that courts may exercise common-law authority under the ATS to create private rights of action in very limited circumstances. Sosa suggested, for example, that courts could recognize causes of action for three historical violations of international law: “violation of safe conducts, infringement of the rights of ambassadors, and piracy.” Ruling against plaintiffs, the high court stated: “Whether and to what extent defendants should be liable under the ATS for torts beyond the three historical torts identified in Sosa lies within the province of the Legislative Branch.” (Nestle USA, Inc. v. Doe (U.S., June 17, 2021) 141 S.Ct. 1931.)

Obamacare Survives.

As originally enacted in 2010, the Patient Protection and Affordable Care Act required most Americans to obtain minimum essential health insurance coverage. The Act also imposed a monetary penalty, scaled according to income, upon individuals who failed to do so. In 2017, Congress effectively nullified the penalty by setting its amount at $0. Texas and 17 other states claimed that without the penalty the Act’s minimum essential coverage requirement is unconstitutional. Specifically, they argued neither the Commerce Clause nor the Tax Clause (nor any other enumerated power) grants Congress the power to enact it. The U.S. Supreme Court held: “[W]e conclude that the plaintiffs in this suit failed to show a concrete, particularized injury fairly traceable to the defendants’ conduct in enforcing the specific statutory provision they attack as unconstitutional. They have failed to show that they have standing to attack as unconstitutional the Act’s minimum essential coverage provision.” (California v. Texas (U.S., June 17, 2021) 141 S.Ct. 2104.)

Service by Publication.

After plaintiff tried mightily to serve defendant in person and by mail, the trial court ordered service by publication. Eventually a default judgment was entered against defendant, and the trial court denied defendant’s motion to set it aside. On appeal, the Court of Appeal noted that it is generally recognized that service by publication rarely results in actual notice. Affirming, the appeals court stated: “We conclude that Singh and Rawat’s failure to return signed acknowledgements of receipt of the summons and Singh’s avoidance of the service of process . . . together with . . . diligent efforts to serve the summons and complaint on Singh and Rawat, supported the trial court’s conclusion that resort to service by publication was justified.” (Rios v. Singh (Cal. App. 3rd Dist., May 25, 2021) 2021 WL 2514048.)

Authority of Patent Trial and Appeal Board.

With regard to patents, the Constitution states the President has the responsibility to “take Care that the Laws be faithfully executed.” (Art. II, §1, cl. 1, §3.) The question presented to the U.S. Supreme Court in this case was whether the authority of the Patent Trial and Appeal Board’s (PTAB) Administrative Patent Judges (APJ) to issue decisions on behalf of the executive branch is consistent with these constitutional provisions. The Secretary of Commerce appoints all members of the PTAB except for the Director who is nominated by the President and confirmed by the Senate. The high court held: “The unreviewable authority wielded by APJs during inter partes review is incompatible with their appointment by the Secretary to an inferior office. [¶] . . . Decisions by APJs must be subject to review by the Director. [¶] . . . [T]he Director need not review every decision of the PTAB. What matters is that the Director have the discretion to review decisions rendered by APJs. In this way, the President remains responsible for the exercise of executive power—and through him, the exercise of executive power remains accountable to the people.” (United States v. Arthrex, Inc. (U.S., June 21, 2021) 141 S.Ct. 1970.)

NCAA Restraints and Antitrust Laws.

Plaintiffs allege the National Collegiate Athletic Association (NCAA) and certain of its member institutions violated competition policy by agreeing to restrict the compensation colleges and universities may offer the student-athletes who play for their teams. The NCAA sought immunity from the normal operation of antitrust laws and approval of its existing restraints by the court. The district court refused to disturb the NCAA’s rules limiting undergraduate athletic scholarships and other compensation related to athletic performance. At the same time, the district court struck down NCAA rules limiting the education-related benefits schools may offer student-athletes—such as rules that prohibit schools from offering graduate or vocational school scholarships. The Ninth Circuit affirmed. The U.S. Supreme Court also affirmed, stating: “For our part, though, we can only agree with the Ninth Circuit: ‘The national debate about amateurism in college sports is important. But our task as appellate judges is not to resolve it. Nor could we. Our task is simply to review the district court judgment through the appropriate lens of antitrust law.’ ” (National Collegiate Athletic Association v. Alston (U.S., June 21, 2021) 141 S.Ct. 2141.)

Securities Fraud Class Action.

Shareholders brought a securities fraud action, alleging violation of securities laws that prohibit material misrepresentations and omissions in connection with the sale of securities. (15 U.S.C. § 78j(b); 17 CFR § 240.10b–5.) Plaintiffs contend that Goldman maintained an artificially inflated stock price by making generic statements about its ability to manage conflicts—for example, “We have extensive procedures and controls that are designed to identify and address conflicts of interest.” Plaintiffs say that Goldman’s generic statements were false or misleading in light of several undisclosed conflicts of interest, and that once the truth about Goldman’s conflicts came out, Goldman’s stock price dropped and shareholders suffered losses. The district court certified the class based on Goldman’s failure to establish by a preponderance of the evidence that its alleged misrepresentations had no price impact. The Second Circuit affirmed. Vacating the judgment of the Second Circuit and remanding, the U.S. Supreme Court stated: “The Second Circuit correctly placed the burden of proving a lack of price impact on Goldman. But because it is unclear whether the Second Circuit properly considered the generic nature of Goldman’s alleged misrepresentations in reviewing the District Court’s price impact determination, we vacate the judgment of the Second Circuit and remand the case for further proceedings consistent with this opinion.” (Goldman Sachs Group, Inc. v. Arkansas Teacher Retirement System (U.S., June 21, 2021) 141 S.Ct. 1951.)

Challenge to California’s Law Requiring a Minimum Number of Women on Boards of Directors.

California Corporations Code §§ 301.3 and 2115.5 (SB 826) require all corporations headquartered in California to have a minimum number of women on their boards of directors. Corporations that do not comply with SB 826 may be subject to monetary penalties. The shareholders of OSI Systems, Inc., a corporation covered by SB 826, elect members of the board of directors. One shareholder of OSI, plaintiff, brought an action claiming that SB 826 violates the Fourteenth Amendment by requiring shareholders to discriminate on the basis of sex when exercising their voting rights. The district court dismissed the action, finding plaintiff lacked standing. Reversing, the Ninth Circuit stated: “We hold that because [plaintiff] has plausibly alleged that SB 826 requires or encourages him to discriminate on the basis of sex, he has adequately alleged that he has standing to challenge SB 826’s constitutionality.” (Meland v. Weber (9th Cir., June 21, 2021) 2021 WL 2521615.)

Suing for Advertising in Emails.

After receiving unsolicited emails that advertised products sold by defendant, plaintiffs sued under Business and Professions Code § 17529.5, which makes it unlawful to advertise in commercial emails under specified circumstances. The emails, from addresses with names like “Vehicle Service Plan,” were not sent by defendant itself, but by third party “marketing partners” of defendant. The trial court sustained defendant’s demurrer and dismissed the case. Reversing, the Court of Appeal held: “[A] recipient of a commercial email advertisement sent by a third party is not precluded as a matter of law from stating a cause of action under section 17529.5 against the advertiser for the third party’s failure to provide sufficient information disclosing or making traceable the third party’s own identity. We further hold that such a cause is not precluded simply because such an email sufficiently identifies the advertiser.” (Greenberg v. Digital Media Solutions, LLC (Cal. App. 1st Dist., Div. 1, June 21, 2021) 2021 WL 2525645.)

Defendant Added as a Judgment Debtor.

The superior court granted plaintiff’s motion to amend a judgment by adding defendant as a judgment debtor. Defendant argued on appeal that the trial court erred by exceeding its equitable power under Code of Civil Procedure § 187, emphasizing that many years earlier, she successfully moved for summary judgment and was dismissed from the case. Section 187 states: “When jurisdiction is, by the Constitution or this Code, or by any other statute, conferred on a Court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code.” Affirming, the Court of Appeal held the superior court did not abuse its discretion in adding defendant as a judgment debtor. (Favila v. Pasquarella (Cal. App. 2nd Dist., Div. 7, June 21, 2021) 2021 WL 2525292.)

Parties Who Defeat Motion to Add Them as Judgment Debtors Entitled to Fees Under Code of Civil Procedure § 1717.

Following an arbitration, the arbitrator awarded defendants’ attorney fees. The superior court confirmed that arbitration award and entered judgments in favor of defendants. Plaintiffs unsuccessfully challenged the judgments on appeal. When the parties returned to the superior court, plaintiffs moved to amend the judgments to add third parties Westwood Homes, Inc. and Lucille Westwood pursuant to Code of Civil Procedure § 187. The superior court denied the motions. Westwood Homes, Inc. and Lucille Westwood thereafter sought to recover their attorney fees for prevailing on the motions. The Court of Appeal held the superior court erred in denying the fee motions, stating: “Westwood Homes and Lucille Westwood Limited Partnership may be viewed as prevailing parties under [Code of Civil Procedure] section 1717 and entitled to attorney fees under the CC&Rs.” (Westwood Homes, Inc. v. AGCPII Villa Salerno Member, LLC (Cal. App. 3rd Dist., June 21, 2021) 2021 WL 2525291.)

Suing for Damages Resulting from Terrorism.

Three appeals arose from three separate acts of terrorism—one in Paris, one in Istanbul, and one in San Bernardino. Plaintiffs sought damages pursuant to the Anti-Terrorism Act (18 U.S.C., § 2333; ATA). The ATA allows U.S. nationals to recover damages for injuries suffered by reason of an act of international terrorism. Plaintiffs sought damages from social media platforms, alleging that Google, Twitter and Facebook were liable by permitting terrorists to post videos and other content and to communicate with each other and radicalize recruits. Plaintiffs also claimed that Google placed paid advertisements in proximity to ISIS-created content and shared the resulting ad revenue with ISIS. The district court dismissed all three actions. With regard to the Paris and San Bernardino attacks, the Ninth Circuit affirmed the dismissal of the cases, agreeing with the lower court that plaintiffs failed to state a claim, mainly because the Communications Decency Act (47 U.S.C. § 230) immunizes those who publish content created by third parties. As to the Istanbul attack, the Ninth Circuit reversed, finding the lower court erred by ruling that plaintiffs failed to state a claim for aiding-and-abetting liability under the ATA. (Gonzalez v. Google LLC (9th Cir., June 22, 2021) 2021 WL 2546675.)

California Union Regulation Amounts to a Per Se Taking.

A California regulation grants labor organizations a “right to take access” to an agricultural employer’s property in order to solicit support for unionization. (Cal. Code Regs., tit. 8, § 20900, subd. (e)(1)(C).) Agricultural employers must allow union organizers onto their property for up to three hours per day, 120 days per year. The growers filed suit in federal court seeking to enjoin enforcement of the access regulation on the grounds that it appropriated without compensation an easement for union organizers to enter their property and therefore constituted an unconstitutional per se physical taking under the Fifth and Fourteenth Amendments. The question presented to the U.S. Supreme Court was whether the access regulation constitutes a per se physical taking under the Fifth and Fourteenth Amendments. The high court held: “The access regulation grants labor organizations a right to invade the growers’ property. It therefore constitutes a per se physical taking.” (Cedar Point Nursery v. Hassid (U.S., June 23, 2021) 141 S.Ct. 2063.)

Vulgar Speech of High School Student Is Constitutionally Protected.

A public high school student used, and transmitted to her Snapchat friends, vulgar language and gestures criticizing both the school and the school’s cheerleading team. The student’s speech took place outside of school hours and away from the school’s campus. In response, the school suspended the student for a year from the cheerleading team. The issue before the U.S. Supreme Court was whether the school’s decision violated the First Amendment. Noting, “[i]t might be tempting to dismiss B. L.’s words as unworthy of the robust First Amendment protections discussed herein. But sometimes it is necessary to protect the superfluous in order to preserve the necessary,” the high court held that “the school violated B. L.’s First Amendment rights.” (Mahanoy Area School District v. B. L. (U.S., June 23, 2021) 141 S.Ct. 2038.)

Fleeing Misdemeanants Do Not Always Amount to Exigent Circumstances Permitting Warrantless Entry to Homes.

A man drove past a California Highway Patrol officer in Sonoma, California, listening to loud music with his windows down and repeatedly honking his horn. The officer began to tail him, and soon afterward turned on his overhead lights to signal that the man should pull over. By that time, though, the man was about a hundred feet (some four-seconds drive) from his home. Rather than stopping, the man continued to his driveway and entered his attached garage. The officer followed him in and began questioning him. Observing signs of intoxication, the officer put him through field sobriety tests. The man did not do well, and a later blood test showed that his blood-alcohol content was more than three times the legal limit. The state charged him with the misdemeanor of driving under the influence of alcohol. The man moved to suppress all evidence obtained after the officer entered his garage, arguing that the warrantless entry had violated the Fourth Amendment. California courts held that the pursuit of a suspected misdemeanant is always permissible under the exigent circumstances exception to the warrant requirement. The question presented to the U.S. Supreme Court was whether the pursuit of a fleeing misdemeanor suspect qualifies as an exigent circumstance allowing a warrantless entry to the suspect’s home. Vacating the California judgment, the nation’s high court held: “The flight of a suspected misdemeanant does not always justify a warrantless entry into a home. An officer must consider all the circumstances in a pursuit case to determine whether there is a law enforcement emergency. On many occasions, the officer will have good reason to enter—to prevent imminent harms of violence, destruction of evidence, or escape from the home. But when the officer has time to get a warrant, he must do so—even though the misdemeanant fled.” (Lange v. California (U.S., June 23, 2021) 141 S.Ct. 2011.)

JAMS failed to Disclose.

The parties brought their disputes to arbitration before a JAMS arbitrator. Several months after the arbitration hearing, but before the arbitrator issued her final decision, plaintiff’s counsel merged with another law firm. Plaintiff’s counsel notified JAMS and the parties of the merger in April 2017. The arbitrator issued a final award in favor of plaintiff on October 26, 2017. That same day, defendant emailed a JAMS case manager asking if there had been a conflicts check for the merged law firm. The case manager responded that JAMS and the parties were notified of the law firm substitution in April 2017, and the arbitrator “had nothing further to disclose.” After JAMS responded, defendant filed a motion for relief in the district court under Federal Rule of Civil Procedure 59(e), arguing that the arbitrators and JAMS failed to make disclosures required under Monster Energy Co. v. City Beverages, LLC (9th Cir. 2019) 940 F.3d 1130. The district court denied the motion. Affirming in part and reversing in part, the Ninth Circuit rejected defendant’s argument that JAMS’s failure to disclose its prior business dealings with plaintiff or its counsel required a vacatur of the arbitration award. The Ninth Circuit stated, “Monster Energy only requires disclosure when an arbitrator holds an ownership interest in JAMS and JAMS engages in nontrivial business dealings with a party to the arbitration.” The appeals court stated further that even if an arbitrator had an ownership interest in JAMS, “[w]e decline to stretch the Monster Energy opinion to require disclosure of nontrivial business dealings with counsel.” The Ninth Circuit also rejected defendant’s argument that the arbitration award should be vacated because the arbitrator demonstrated evident partiality by failing to provide a supplemental disclosure form confirming the absence of conflicts after the law firm merger. However, the appeals court concluded that the district court “clearly erred in concluding that JAMS provided a disclosure in accordance with Monster Energy, where JAMS declined to make such disclosure and instead asserted that the Arbitrators no longer had jurisdiction over the arbitration.” The Ninth Circuit therefore “remand[ed] this particular issue to the district court to consider in the first instance how the parties can obtain from JAMS the information required by Monster Energy.” (EHM Productions, Inc. v. Starline Tours of Hollywood (9th Cir., June 24, 2021) 2021 WL 2584404.)

When Coastal Commission Failed to Act, Applicant’s Permit Deemed Approved.

Plaintiffs are owners of mobile homes. The California Coastal Commission ordered them to demolish completed second-story additions to their homes. Plaintiffs filed a petition for writ of mandate in the superior court. The trial court denied the petition. Reversing and remanding with directions for the trial court to grant the petition, the Court of Appeal stated: “We conclude appellants’ writ petition should have been granted. The Coastal Commission has concurrent jurisdiction with the California Department of Housing and Community Development over mobile homes located in the coastal zone. Thus, even though appellants obtained a permit from the latter, they were also required to obtain a permit from the former. The Coastal Commission’s failure to act on appellants’ applications for coastal development permits, however, resulted in the applications being deemed approved under the Streamlining Act [Gov. Code, § 65921 et seq.].” (Linovitz Capo Shores LLC v. California Coastal Commission (Cal. App. 4th Dist., Div. 3, June 25, 2021) 2021 WL 2621205.)

Attorney Fee Award Greater than the Amount Actually Paid.

The trial court awarded defendant $146,010 in attorney fees under Code of Civil Procedure § 425.16. On appeal, plaintiff contended the trial court erroneously ordered him to pay an hourly rate that was greater than what was actually paid for defendant’s defense. Affirming, the Court of Appeal stated: “We conclude the trial court properly determined the reasonable market value of the attorneys’ services and affirm the attorney fees order.” (Pasternack v. McCullough (Cal. App. 2nd Dist., Div. 8, June 25, 2021) 2021 WL 2633050.)

Overtime Rate.

The issue presented by this appeal was whether defendant employers violated California law in their method of calculating the regular rate of pay for purposes of compensating overtime hours of employees who worked at different rates of pay within a single pay period (dual rate employees). Defendants used the rate-in-effect method, by which dual rate employees are paid for overtime hours based on the rate in effect when the overtime hours began. Plaintiffs argued that California law required defendants to use the weighted average method, by which dual rate employees are paid for overtime based on an hourly rate calculated by dividing the employee’s total compensation for the pay period by the total number of hours worked in that pay period. The trial court found that defendants did not violate California employment law by using the rate-in-effect method for calculating the overtime rate of pay. Affirming, the Court of Appeal stated: “California law does not mandate the use of the weighted average method, and defendants’ dual rate employees, including plaintiffs, overall received net greater overtime pay under the rate-in-effect method than they would have received under the weighted average method.” (Levanoff v. Dragas (Cal. App. 4th Dist., Div. 3, June 25, 2021) 2021 WL 2621360.)

Inmate Died While Police Restrained Him.

An officer saw an inmate in a holding cell tie a piece of clothing around the bars of his cell and put it around his neck, in an apparent attempt to hang himself. Three officers responded and entered his cell. One grabbed the inmate’s wrist to handcuff him, but the inmate evaded the officer and began to struggle. The three officers brought the man, who was 5’3” and 160 pounds, down to a kneeling position over a concrete bench in the cell and handcuffed his arms behind his back. The man reared back, kicking the officers and hitting his head on the bench. After he kicked one of the officers in the groin, they called for more help and leg shackles. While the man continued to struggle, two officers shackled his legs together. Emergency medical services personnel were phoned for assistance. Several more officers responded. They relieved two of the original three officers, leaving six officers in the cell with the man, who was now handcuffed and in leg irons. The officers moved him to a prone position, face down on the floor. Three officers held his limbs down at the shoulders, biceps, and legs. At least one other placed pressure on the man’s back and torso. The man tried to raise his chest, saying, “It hurts. Stop.” After 15 minutes of struggling in this position, the man’s breathing became abnormal, and he stopped moving. The officers rolled him onto his side and then his back to check for a pulse. Finding none, they performed chest compressions and rescue breathing. An ambulance eventually transported the man to the hospital, where he was pronounced dead. The man’s parents sued, alleging that the officers had used excessive force against him. The district court granted summary judgment in favor of the officers. The Eighth Circuit Court of Appeals affirmed. The U.S. Supreme Court stated that it was unclear whether the appeals court thought the use of a prone restraint—no matter the kind, intensity, duration, or surrounding circumstances—was per se constitutional so long as the individual appears to resist officers’ efforts to subdue him. Noting evidence that could indicate that the officers used excessive force, the high court stated that the appeals court “either failed to analyze such evidence or characterized it as insignificant,” and stated, “the court’s opinion could be read to treat [the inmate’s] ‘ongoing resistance’ as controlling as a matter of law. . . . Such a per se rule would contravene the careful, context-specific analysis required by this Court’s excessive force precedent.” The high court granted the petition for certiorari, vacated the judgment of the Eighth Circuit, and remanded the case “to give the court the opportunity to employ an inquiry that clearly attends to the facts and circumstances” in deciding in the first instance whether the officers used unconstitutionally excessive force and whether the inmate’s right to be free from such use of force in these circumstances was clearly established at the time of his death. (Lombardo v. City of St. Louis (U.S., June 28, 2021) 2021 WL 2637856.)

Jury Finding of Grave Disability Was Sufficient to Appoint a Conservator.

When the public guardian filed for renewal of a conservatorship that had been in place for ten years, the conservatee demanded a jury trial. A jury found the conservatee was gravely disabled, and the reappointment petition was granted. Affirming, the California Supreme Court held: “The jury’s finding of grave disability was sufficient to appoint a conservator” and that the jury was not required to find, in addition, that the conservatee was unwilling or unable to voluntarily accept treatment. (Conservatorship of K.P. (Cal., June 28, 2021) 2021 WL 2640595.)

Previously we reported:
Transgender Bathroom Issue.

In 2015, a transgender Virginia high school student brought an action against a school board under the Equal Protection Clause and Title IX of the Education Amendments of 1972, challenging the school’s restroom policy requiring students to use a restroom consistent with their birth sex, rather than gender identity. A federal trial court dismissed the Title IX claim and denied the student’s request for a preliminary injunction. The Fourth Circuit reversed and mandated a preliminary injunction to permit the student to use the boys’ restroom. On August 3, 2016, while the U.S. Supreme Court was in its summer recess, the high court granted a stay of the preliminary injunction in order to maintain the status quo until the high court considered a writ of certiorari. On October 28, 2016, the U.S. Supreme Court granted a petition for writ of certiorari. On February 22, 2017, the U.S. Departments of Justice and Education [under the Trump administration] withdrew two guidance documents [prepared under the Obama administration] that took the position the Title IX’s prohibitions against discrimination on the basis of sex require access to sex-segregated facilities on the basis of gender identity rather than biological sex, after deciding they needed to consider the matter more completely. On March 6, 2017, the U.S. Supreme Court issued this order: “Judgment vacated, and case remanded to the United States Court of Appeals for the Fourth Circuit for further consideration in light of the guidance document issued by the Department of Education and Department of Justice on February 22, 2017.” (Gloucester County School Bd. v. G.G. ex rel. Grimm (U.S., March 6, 2017) 137 S.Ct. 1239.)

The next thing that happened:

After the circuit court remanded the matter to the lower court, a federal trial court found in the boy’s favor, granting him summary judgment and awarding nominal damages. The Fourth Circuit affirmed. (Grimm v. Gloucester County School Board (4th Cir. 2020) 972 F.3d 586.)

The latest:

The U.S. Supreme Court denied certiorari. (Gloucester County School Board v. Grimm (U.S., June 28, 2021) 2021 WL 2637992.)

Eminent Domain.

The U.S. Supreme Court was asked to decide whether the Federal Government can constitutionally confer on pipeline companies the authority to condemn necessary rights-of-way in which a State has an interest. The high court ruled: “We hold that it can. Although nonconsenting States are generally immune from suit, they surrendered their immunity from the exercise of the federal eminent domain power when they ratified the Constitution. That power carries with it the ability to condemn property in court. Because the Natural Gas Act delegates the federal eminent domain power to private parties, those parties can initiate condemnation proceedings, including against state-owned property.” (PennEast Pipeline Company, LLC v. New Jersey (U.S., June 29, 2021) 2021 WL 2653262.)

Which Aliens May Be Released Pending Removal Hearing and Which May Not.

Federal immigration law contains various provisions authorizing the government to detain aliens during the removal process. This case concerns two of them: 8 U.S.C. § 1226, which permits an alien to apply for release on bond pending hearing, and 8 U.S.C. § 1231, which requires that an alien be removed under a prior removal order if the alien was previously removed and returned to the country without authorization. The U.S. Supreme Court was asked to decide whether aliens, who were removed from the U.S. but later reentered without authorization, were entitled to proceed under § 1226. The high court held: “We conclude that §1231, not §1226, governs the detention of aliens subject to reinstated orders of removal, meaning those aliens are not entitled to a bond hearing while they pursue withholding of removal.” (Johnson v. Guzman Chavez (U.S., June 29, 2021) 2021 WL 2653264.)

Assignor Estoppel Lives On.

The concept of assignor estoppel is rooted in the idea of fair dealing; it limits an inventor’s ability to assign a patent to another for value and later contend in litigation that the patent is invalid. But assignor estoppel applies only when the assignor’s claim of invalidity contradicts explicit or implicit representations the assignor made in assigning the patent. The invention sparking this lawsuit is a device to treat abnormal uterine bleeding, a medical condition affecting many millions of women. 

  • In the late 1990s, the inventor, a founder of the company Novacept, Inc., assigned his interest in the application—as well as in any future “continuation applications”—to Novacept.
  • In 2004, Novacept sold its assets, including its portfolio of patents and patent applications, to another company, netting the inventor individually about $8 million.
  • And in another sale, in 2007, Hologic, Inc. acquired all patent rights. Today, Hologic sells that device throughout the United States.
  • In 2008, the inventor founded Minerva Surgical, Inc. In that capacity, the inventor invented a supposedly improved device and had it patented.
  • Hologic sued Minerva for patent infringement.

The U. S. Supreme Court rejected Minerva’s contention that assignor estoppel should be abandoned. The high court remanded the matter to the Federal Circuit to decide whether there was inconsistency in what was assigned and what is now being claimed. (Minerva Surgical, Inc. v. Hologic, Inc. (U.S., June 29, 2021) 2021 WL 2653265.)

Model Showed Probability of Success and Defeated Anti-SLAPP Motion.

Plaintiff, a model, participated in a fashion show that was filmed and aired on television in an episode of the reality series Shahs of Sunset. Plaintiff never signed a release authorizing or agreeing to be filmed. She sued the show’s production and media companies for various causes of action after discovering she was filmed while changing clothes in a dressing area designated for models, and that her “nearly fully nude body had been exposed on national television” during the airing of the show. Defendants filed a special motion to strike the complaint as a strategic lawsuit against public participation under the anti-SLAPP statute (Code Civ. Proc., § 425.16). The trial court denied the special motion to strike, finding that the model had established a probability of prevailing on the merits of her causes of action. Affirming, the Court of Appeal found plaintiff showed a probability of success on her invasion of privacy, tortious misappropriation of name of likeness, intentional infliction of emotional distress, and negligence causes of action. But the appeals court concluded plaintiff’s separate cause of action for negligent infliction of emotional distress had to be stricken since it was part and parcel of the negligence cause of action. (Belen v. Ryan Seacrest Productions, LLC (Cal. App. 2d Dist., Div. 8, June 29, 2021) 2021 WL 2659755.)

Previously we reported:
Treatment of Children in Border Facilities.

In 1997, the federal district court entered a consent decree (Agreement) in a case filed on behalf of a class of minors detained by U.S. immigration authorities. The Agreement requires immigration facilities to hold minors in their custody “in facilities that are safe and sanitary.” In May 2016, plaintiffs filed a motion to enforce the Agreement, alleging the government continued to violate it by detaining class members in unsafe and unsanitary conditions at Border Patrol stations. After an evidentiary hearing, the federal district court granted the motion. The court found that the government was violating the Agreement’s express requirements to provide adequate access to appropriate food and water and “adequate temperature controls at a reasonable and comfortable range.” The court further found that although the Agreement “makes no mention of the words ‘soap,’ ‘towels,’ ‘showers,’ ‘dry clothing,’ or ‘toothbrushes,’ . . . these hygiene products fall within the rubric of the Agreement’s language requiring ‘safe and sanitary’ conditions.” Appealing from the order, the government argued the court modified the Agreement by adding “that Border Patrol stations provide the most basic human necessities—accommodations that allow for adequate sleep, essential hygiene items, and adequate, clean food and water . . . .” The Ninth Circuit dismissed the appeal, stating the lower court did not modify the Agreement, but only interpreted the Agreement’s requirement that minors be held in “safe and sanitary” conditions. (Flores v. Barr (9th Cir., Aug. 15, 2019) 2019 WL 3820265)

The latest:

This time around, plaintiffs filed a motion to enforce the Flores Agreement, maintaining, among other contentions, that housing the minors in hotels violated the Agreement’s requirement that DHS ordinarily transfer minors to a licensed program if it holds them for longer than three days. Plaintiffs also asserted that minors held in hotels were being denied access to counsel in violation of the Agreement. A federal trial court enjoined DHS from detaining certain minors in hotels for more than a few days. The Ninth Circuit affirmed the orders of the district court, finding the trial court’s orders followed the Flores Agreement. (Flores v. Garland (9th Cir., June 30, 2021) 2021 WL 2673142.)

Hillary’s Emails . . . the Saga Continues.

After a successful suit under the Freedom of Information Act, plaintiff obtained redacted information related to a 2016 search warrant investigating then-Secretary of State Hillary Clinton’s email practices. The district court denied plaintiff’s request for attorney fees, despite the fact that he was the prevailing party. But the decision of whether or not to award fees was “within the sound discretion of the trial court.” (5 U.S.C. § 552(a)(4)(E)(i).) Affirming the district court’s order denying fees, the Ninth Circuit stated: “The district court reasonably concluded that the FBI reasonably based its nondisclosure on the SDNY sealing order. The district court also acted within its discretion in balancing the four entitlement factors.” (Schoenberg v. Federal Bureau of Investigation (9th Cir., June 30, 2021) 2021 WL 2673148.)

Identity of Charitable Donors May Remain Anonymous.

To solicit contributions in California, charitable organizations must disclose to the state Attorney General’s Office the identities of their major donors. The state contends that having this information on hand makes it easier to police misconduct by charities. Petitioners are tax-exempt charities who solicit contributions in California and are subject to California’s registration and renewal requirements. When petitioners resisted disclosing their contributors’ identities, the Attorney General of California threatened to suspend their registrations and fine their directors and officers. Petitioners alleged that California had violated their First Amendment rights and the rights of their donors, alleging that disclosure would make their donors less likely to contribute and would subject them to the risk of reprisals. The district court granted preliminary injunctions prohibiting California from collecting donor information. The Ninth Circuit vacated the injunctions. The U.S. Supreme Court agreed with the trial court and disagreed with the Ninth Circuit, concluding “that the Attorney General’s disclosure requirement imposes a widespread burden on donors’ associational rights. And this burden cannot be justified on the ground that the regime is narrowly tailored to investigating charitable wrongdoing, or that the State’s interest in administrative convenience is sufficiently important.” (Americans for Prosperity Foundation v. Bonta (U.S., July 1, 2021) 2021 WL 2690268.)

Previously we reported:
The Right to Vote.

In 2016, the Democratic National Committee (DNC) and others sued Arizona, challenging its voting policies on constitutional grounds and alleging violations of the Voting Rights Act of 1965 (VRA). The DNC challenged Arizona’s policy of wholly discarding, rather than counting or partially counting, ballots cast out-of-precinct (OOP) and alleged that Arizona’s House Bill 2023, which criminalizes the collection and delivery of another person’s ballot, violated Section 2 of the VRA. DNC argued that the OOP policy and H.B. 2023 caused a disparate adverse impact on American Indians, Hispanics, and African Americans, that H.B. 2023 was enacted with discriminatory intent, and that the OOP policy and H.B. 2023 unduly burdened minorities’ voting rights. The district court found in favor of Arizona after a bench trial. The Ninth Circuit reversed, stating: “We hold that Arizona’s OOP policy violates the results test of Section 2. We hold that H.B. 2023 violates both the results test and the intent test of Section 2. We hold that H.B. 2023 also violates the Fifteenth Amendment. We do not reach Plaintiffs’ other constitutional challenges. We reverse the judgment of the district court and remand for further proceedings consistent with this opinion.” (Democratic Nat’l Comm. v. Hobbs (9th Cir., Jan. 27, 2020) 2020 WL 414448.)

The latest:

The U.S. Supreme Court reversed the judgment of the Ninth Circuit, stating: “Arizona’s out-of-precinct policy and HB 2023 do not violate §2 of the VRA, and HB 2023 was not enacted with a racially discriminatory purpose. The judgment of the Court of Appeals is reversed, and the cases are remanded for further proceedings consistent with this opinion.” (Brnovich v. Democratic National Committee (U.S., July 1, 2021) 2021 WL 2690267.)

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