Arduini v. Int’l Gaming Tech.

Shareholders are required to make a “demand” on the corporation’s board of directors before filing a derivative suit, unless they sufficiently allege that demand would be futile. Before Arduini filed his derivative action against IGT and its board, four shareholders filed derivative suits that were consolidated. They argued that a demand was excused because: the IGT board extended the employment contract of IGT’s former CEO and chairman of IGT’s board of directors, and allowed him to resign rather than terminating him for cause; three directors received such high compensation from IGT that their ability to impartially consider a demand was compromised; six directors faced a substantial likelihood of liability for breaches of their fiduciary duties as committee members; and that other members had engaged in insider trading. The district court dismissed the consolidated suit for failure to make a demand or sufficiently allege futility; the Ninth Circuit affirmed. The district court then dismissed Arduini’s action, holding that Arduini had failed to make a demand and could not allege demand futility based on issue preclusion due to its ruling in the prior suit. The Ninth Circuit affirmed, holding that under Nevada law and these facts, issue preclusion barred relitigation of futility.View "Arduini v. Int'l Gaming Tech." on Justia Law

Conservation Congress v. Finley

Conservation Congress filed suit contending that the federal government violated national environmental laws in failing to consult adequately as to the Beaverslide Project's potential effects on the Northern Spotted Owl. The Project is a lumber thinning and fuel reduction project in northern California. The district court granted summary judgment in favor of the government. The court concluded that the district court properly held that Conservation Congress provided sufficient notice of intent to sue to confer jurisdiction on the district court to entertain the Endangered Species Act (ESA), 16 U.S.C. 1531 et seq., claims; the ESA claims are not moot; the district court properly granted summary judgment to the government on the merits of Conservation Congress's claims under the ESA where the Forest Service did not violate the consultation requirements of 50 C.F.R. 402.16; the district court properly concluded that the agencies did not fail to use "the best scientific and commercial data available," as required by the ESA; and the district court properly granted summary judgment on Conservation Congress's National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq., claims under the "hard look" standard. Accordingly, the court affirmed the judgment.View "Conservation Congress v. Finley" on Justia Law

OR Pub. Emp. Ret. Fund v. Apollo Group

Plaintiffs, representatives of a class of investors that purchased stock in Apollo, filed suit alleging, among other things, that defendants violated section 10(b) of the Securities and Exchange Act and SEC Rule 10b-5, 15 U.S.C. 78j and 17 C.F.R. 240.10b-5, by making false and misleading statements of material fact regarding Apollo's enrollment and revenue growth, financial condition, organizational values, and business focus. The district court dismissed the amended complaint under Rule 12(b)(6) for failure to state a claim. The court concluded that the material misrepresentations plaintiffs alleged in Counts I, III, and IV of the Amended Complaint are not objectively false misstatements, but are examples of lawful business puffing; moreover, plaintiff failed to plead scienter or loss causation; Count II contains largely conclusory allegations that Apollo improperly recorded student revenue; plaintiffs' allegations that defendants are guilty of insider trading fail to state a claim because the alleged non-public information to which defendants had access is the same information at issue in Counts I, II, and III, and IV of the Amended Complaint; and plaintiffs cannot establish control person liability. Accordingly, the court affirmed the judgment of the district court.View "OR Pub. Emp. Ret. Fund v. Apollo Group" on Justia Law

United States v. Kollman

After the IRS made an assessment against defendant for the 1996 tax year, the government filed a complaint seeking to reduce the assessment to judgment and to foreclose tax liens against two parcels of property. The district court determined that the government's collection suit was not barred by the ten-year statute of limitations pursuant to 26 U.S.C. 6502(a)(1). The court held that the tolling period provided for in section 6330(e)(1) includes the time during which a taxpayer could file an appeal to the Tax Court, even if he does not actually file such an appeal. Applying Chevron, the court concluded that the Treasury Department's issuance of 26 C.F.R. 301.6330-1(g)(1) was a permissible construction of section 6330(e)(1). Therefore, the government's collection action against defendant was not barred by the statute of limitations and the court affirmed the judgment.View "United States v. Kollman" on Justia Law

Vivid Entertainment v. Fielding

Plaintiffs filed suit challenging the enforcement of the County of Los Angeles Safer Sex in the Adult Film Industry Act ("Measure B"), Los Angeles County, Cal. Code tit. 11, div. 1, ch. 11.39, and amending tit. 22, div. 1, ch. 22.56.1925. Measure B imposes a permitting system and additional production obligations on the makers of adult films, such as requiring performers to wear condoms in certain contexts. The court concluded that it need not decide whether Intervenors satisfy the requirements of Article III standing where plaintiffs have standing. Further, the district court did not abuse its discretion in granting preliminary injunctive relief to only certain parts of Measure B, while allowing enforcement of other provisions as severable. The purpose of Measure B is twofold: (1) to decrease the spread of sexually transmitted infections among performers within the adult industry, (2) thereby stemming the transmission of sexually transmitted infections to the general population among whom the performers dwell. The court concluded that the district court properly exercised its discretion in concluding that the condom requirement would likely survive intermediate scrutiny where the restriction of expression in this case is de minimus; the regulation is narrowly tailored to serve the government's interest; and the condom requirement leaves alternative channels of expression available. The portions of Measure B's permitting system left in place by the district court also survives constitutional scrutiny where the requirements that adult film producers complete training about blood-borne pathogens and post a permit during shooting still serve the County's interest in preventing sexually transmitted infections. The district court correctly concluded that the remaining permitting provisions leave little, if any, discretion to government officials. Therefore, the district court did not abuse its discretion in denying a preliminary injunction with respect to the condom and permitting requirement. The court affirmed the judgment.View "Vivid Entertainment v. Fielding" on Justia Law

United States v. Reves

Defendants Reves and Bedford appealed the denial of their motions to vacate their sentence. Defendants' convictions stemmed from their involvement in a scheme in ensuring that Sunlaw Energy received a bid to construct a plant in the Port of Stockton instead of Sunlaw's competitor. The court concluded that the district court did not have jurisdiction to consider Bedford's 18 U.S.C. 2255 motion where Bedford was not actually in custody at the time he filed his motion. Therefore, the court reversed the denial of Bedford's section 2255 motion to vacate his sentence and remanded with instructions to dismiss the motion for lack of jurisdiction. The court concluded that the district court properly concluded that Reves's section 2255 motion was untimely and that he did not qualify for the actual innocence or equitable tolling exceptions. Further, Reves expressly waived his right to collaterally attack his conviction or sentence through a section 2255 motion in his plea agreement and during his change of plea colloquy. Accordingly, the court affirmed the judgment as to Reves.View "United States v. Reves" on Justia Law

Saldana v. Occidental Petroleum

Plaintiffs, family members of union leaders killed in Colombia by members of the Colombian National Army's 18th Brigade, filed suit against Occidental, alleging several causes of action, including three under the Alien Tort Statute (ATS), 28 U.S.C. 1350, contending that Occidental should be liable for the 18th Brigade's war crimes, crimes against humanity, and assorted torts arising out of the murder of the union leaders. The district court dismissed the complaint under Rule 12(b)(1) because it raised nonjusticiable political questions. The court affirmed, concluding that the facts of this case cannot be framed in such a way that severs the tie between the United States' and Occidental's funding of the CNA and the 18th Brigade. Plaintiffs' allegations are manifestly irreconcilable with the State Department's human rights certifications to Congress and the court remains bound by the Supreme Court's holding in Oetjen v. Cent. Leather Co. and Corrie v. Caterpillar, Inc.View "Saldana v. Occidental Petroleum" on Justia Law

United States v. Camou

Defendant pleaded guilty to possession of child pornography and appealed the district court's denial of his motion to suppress images of child pornography found on his cell phone. Defendant's cell phone was searched without a warrant at a Border Patrol checkpoint's security offices. The court concluded that the search of the phone was not roughly contemporaneous with arrest and, therefore, was not a search incident to arrest given both the passage of one hour and twenty minutes between arrest and search and the seven intervening acts between arrest and search that signaled the arrest was over; the search of the cell phone is not excused under the exigency exception to the warrant exception; cell phones are non-containers for purposes of the vehicle exception to the warrant requirement and the search of defendant's cell phone cannot be justified under that exception; the inevitable discovery exception to the exclusionary rule is not applicable in this case pursuant to United States v. Mejia; and the good faith exception is inapplicable where the government failed to assert that the agent relied on anyone or anything in conducting his search of the phone, let alone that any reliance was reasonable. Accordingly, the court reversed the district court's denial of defendant's motion to suppress.View "United States v. Camou" on Justia Law


Plaintiffs filed suit against justices of the Arizona Supreme Court challenging the Arizona Supreme Court Rule 34(f) (the AOM Rule). The AOM Rule permits admission on motion to the Arizona Bar for attorneys who are admitted to practice law in states that permit Arizona attorneys to be admitted to the bars of those states on a basis equivalent to Arizona’s AOM Rule, but requires attorneys admitted to practice law in states that do not have such reciprocal admission rules to take the uniform bar exam (UBE) in order to gain admission to the Arizona Bar. The court concluded that although plaintiffs can establish Article III standing based on injuries suffered by Plaintiff Girvin, plaintiffs failed to establish that the AOM Rule is unconstitutional on First Amendment, Fourteenth Amendment, or Privileges and Immunities Clause grounds. Accordingly, the court affirmed the district court's grant of summary judgment to the justices.View "NAAMJP V. Berch" on Justia Law

Alvarez v. Tracy

Petitioner, an enrolled member of the Gila River Indian Community, appealed the district court's denial of his petition for a writ of habeas corpus. The court concluded that petitioner failed to exhaust his claims, and failed to show that the unavailability or futility of direct appeal excuses the exhaustion requirement. Further, petitioner has not shown that the Community's appeals process did not comply with the Indian Civil Rights Act (ICRA), 25 U.S.C. 1303. The court concluded that its application of the exhaustion rule is consistent with Wood v. Milyard and Granberry v. Greer. Comity and tribal self-government concerns warrant application of the doctrine, despite the Community's failure to raise the direct appeal issue. Accordingly, the court affirmed the judgment.View "Alvarez v. Tracy" on Justia Law