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The Ninth Circuit affirmed the district court's grant of summary judgment for CoreLogic in an action brought under the Digital Millennium Copyright Act. Plaintiffs, professional real estate photographers, alleged that CoreLogic removed copyright management information from their photographs and distributed their photographs with the copyright management information removed, in violation of 17 U.S.C. 1202(b)(1)–(3). The panel held that section 1202(b) requires an affirmative showing that the defendant knew the prohibited act would induce, enable, facilitate, or conceal infringement. In this case, plaintiffs failed to make the required affirmative showing because they failed to produce evidence showing that CoreLogic knew its software carried even a substantial risk of inducing, enabling, facilitating, or concealing infringement, let alone a pattern or probability of such a connection to infringement. The panel affirmed the district court's denial of plaintiffs' discovery request and the award of fees. View "Stevens v. CoreLogic, Inc." on Justia Law

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The Ninth Circuit affirmed the district court's dismissal for lack of subject matter jurisdiction an action brought under the Labor Management Relations Act (LMRA), alleging that a union engaged in intentional and negligent misrepresentation to induce it to enter into a collective bargaining agreement. The panel held that section 301(a) of the LMRA grants jurisdiction only for suits that claim a violation of a collective bargaining agreement (CBA), which the employer in this case, Nu Image, did not do. The panel concluded that the holding in Rozay's Transfer v. Local Freight Drivers, Local 208, Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., 850 F.2d 1321 (9th Cir. 1988), that an employer can sue under section 301(a) for declaratory relief to void a provision of a CBA without alleging a contract violation, could not stand following Textron Lycoming Reciprocating Engine Div., Avco Corp. v. United Auto., Aerospace, & Agric. Implement Workers of Am., 523 U.S. 653 (1998). View "Nu Image, Inc. v. International Alliance of Theatrical Stage Employees" on Justia Law

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The Ninth Circuit affirmed the district court's order affirming an arbitration award for the union. ASARCO argued that the award was invalid because the arbitrator reformed the Basic Labor Agreement (BLA) between the union and ASARCO in contravention of a no-add provision in that agreement. The district court affirmed the award, holding that ASARCO properly preserved its objection to the arbitrator's jurisdiction, but the arbitrator was authorized to reform the BLA, despite the no-add provision, based on a finding of mutual mistake. The panel affirmed, holding that the arbitrator was acting within his authority when he crafted a remedy to cure the parties' mutual mistake. Even if ASARCO did not waive its right to contest the arbitrator's jurisdiction, which it did, the panel deferred to the arbitrator's judgment. View "ASARCO, LLC v. United Steel, Paper and Forestry" on Justia Law

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The Ninth Circuit affirmed defendant's conviction for lying to a grand jury. Although the verdict form was clearly erroneous, the error was harmless. In this case, the verdict form indicated that the jury would have to find the defendant not guilty beyond a reasonable doubt. The panel reasoned that the jury instructions taken as a whole, read in conjunction with the verdict form, clearly outlined the burdens of proof and the reasonable doubt standard. View "United States v. Espino" on Justia Law

Posted in: Criminal Law

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The Ninth Circuit affirmed defendant's sentence after he was convicted of two counts of possession of child pornography. The panel held that neither of defendant's prior California convictions constitute offenses "relating to" child pornography under 18 U.S.C. 2252(b)(2), which imposes a ten-year mandatory minimum sentence. The panel held that because the terms "child pornography" and "sexually explicit conduct," are explicitly defined in chapter 110, the statutory text favored the narrower reading of "related to." Therefore, the panel did not depart from the usual, elements-based, categorical approach to determine whether defendant's prior state statutes of conviction trigger the federal mandatory minimum provision in 2252(b)(2) for individuals with prior offenses "relating to" child pornography. Under the categorical approach, the panel held that both California Penal Code 311.11 and 311.3 are overbroad compared to the federal statute and indivisible. View "United States v. Reinhart" on Justia Law

Posted in: Criminal Law

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The Ninth Circuit affirmed the dismissal of a shareholder derivative action under Federal Rule of Civil Procedure 23.1 for failure to show demand futility. As a preliminary matter, the panel held that binding authority compelled it to apply abuse of discretion review. The panel applied Delaware law and held that the shareholders failed to show demand futility; the Aronson test did not apply in this case because it was limited to board business decisions; and under the Rales test, demand was not excused. View "Tindall v. First Solar Inc." on Justia Law

Posted in: Business Law

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The Ninth Circuit denied a petition for panel rehearing and amended its April 6, 2018, opinion granting the petition for review. In the amended opinion, the panel granted the petition for review of the published decision of the Board of Immigration Appeals, Matter of G-G-S-, 26 I. & N. Dec. 339 (BIA 2014), which concluded that petitioner was statutorily ineligible for withholding of removal because he was convicted of a "particularly serious crime" under 8 U.S.C. 1231(b)(3)(B), and vacated and remanded. View "Gomez-Sanchez v. Sessions" on Justia Law

Posted in: Criminal Law

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After Gerritt Vos was shot and killed by police, Vos's parents filed suit alleging federal and state law claims. The district court granted summary judgment for defendants. In this case, officers responded to a call about Vos behaving erratically and brandishing a pair of scissors. Vos eventually charged in the officers' direction while holding the scissors above his head and officers shot him. The Ninth Circuit affirmed in part and reversed in part, holding that the facts were such that a reasonable jury could conclude that Vos was not an immediate threat to the officers, but nonetheless the officers were entitled to qualified immunity on the 42 U.S.C. 1983 claim because existing precedent did not clearly establish, beyond debate, that the officers acted unreasonably under the circumstances; because a reasonable jury could find that officers violated Vos's Fourth Amendment rights, it was appropriate to remand plaintiffs' conspiracy claims and Monell claims; defendants were not entitled to summary adjudication of plaintiffs' claims under the American with Disabilities Act and the Rehabilitation Act; and the panel reversed as to the negligence and state law claims. View "Vos v. City of Newport Beach" on Justia Law

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The Ninth Circuit dismissed as moot plaintiffs' appeal of the district court's dismissal of their action alleging that their teacher unions' requirement to pay a fee to support political and ideological activities violated their constitutional right to free speech. The panel held that a change in plaintiffs' professional circumstances during the pendency of this appeal fundamentally altered the posture of this case. The panel also denied plaintiffs' motion to add an organization plaintiff to their suit under Federal Rule of Civil Procedure 21. Accordingly, the panel remanded with instructions to dismiss the case. View "Bain v. California Teachers Association" on Justia Law

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The Ninth Circuit vacated defendant's sentence after he pleaded guilty to assault resulting in serious bodily injury. The panel held that the district court properly applied a sentencing enhancement for a dangerous weapon used during the commission of the offense under USSG 2A2.2(b)(2)(B). In this case, defendant's tennis shoes qualified as dangerous weapons when he used them to kick and stomp the victim’s head. However, the district court erred in applying an enhancement for an assault that was motivated by a payment or offer of money or thing of value under USSG 2A2.2(b)(5). The panel found that no evidence suggesting that defendant had been hired by someone to assault the victim or that he had been paid anything of value. View "United States v. Swallow" on Justia Law

Posted in: Criminal Law