Justia U.S. 9th Circuit Court of Appeals Opinion Summaries

WhatsApp sued under the Computer Fraud and Abuse Act and California state law, alleging that NSO, a privately owned and operated Israeli corporation, sent malware through WhatsApp’s server system to approximately 1,400 mobile devices. NSO argued that foreign sovereign immunity protected it from suit and, therefore, the court lacked subject matter jurisdiction because NSO was acting as an agent of a foreign state, entitling it to “conduct-based immunity”—a common-law doctrine that protects foreign officials acting in their official capacity.The district court and Ninth Circuit rejected that argument. The Foreign Sovereign Immunity Act, 28 U.S.C. 1602, occupies the field of foreign sovereign immunity and categorically forecloses extending immunity to any entity that falls outside the Act’s broad definition of “foreign state.” There has been no indication that the Supreme Court intended to extend foreign official immunity to entities. Moreover, the FSIA’s text, purpose, and history demonstrate that Congress displaced common-law sovereign immunity as it relates to entities. View "WhatsApp Inc.v. NSO Group Technologies Ltd." on Justia Law

S.L.C. is the now-six-year-old, U.S.-citizen daughter of Lazaro, who resides near Seattle, and Colchester, who resides in Spain. Colchester was given sole custody of S.L.C. by a Spanish court. Lazaro was visiting Colchester and S.L.C. when the COVID-19 pandemic erupted. According to Lazaro, during that visit, Colchester often “screamed at and acted aggressively.” Lazaro testified about several specific instances of abuse. Lazaro absconded with S.L.C.and, unable to stay in Spain because of the lockdown, fled to Seattle with S.L.C.Colchester filed a petition under the Hague Convention on the Civil Aspects of International Child Abduction. The Spanish court issued a warrant, with an order declaring that Spain was S.L.C.’s habitual residence. In Washington state, Lazaro filed petitions for domestic violence orders of protection. Colchester filed a Hague Convention petition in Washington. After dismissing Lazaro’s petitions, the state court issued a warrant, authorizing law enforcement to seize S.L.C. Lazaro responded by temporarily hiding with S.L.C.The district court granted the Hague Convention petition. The Ninth Circuit vacated. Neither the Hague Convention nor its implementing legislation, the International Child Abduction Remedies Act, provides for the appointment of a psychologist as of right but the district court erred in refusing the mother’s request for such an appointment to provide an expert opinion regarding her allegations of abuse and psychological harm to the child. The district court also erred by failing to make findings of fact adequate to support its order. View "Colchester v. Lazaro" on Justia Law

The Ninth Circuit vacated the district court's denial of a petition for return of petitioner's child to France under the Hague Convention on the Civil Aspects of International Child Abduction. The panel concluded that the district court made three legal errors: 1) assuming petitioner cut off financial support for the child, the district court erred as a matter of law in determining that was sufficient to establish that he clearly and unequivocally abandoned the child, the showing required for deeming a parent not to be exercising custody rights; 2) the district court further erred in declining to return the child to France based on a "grave risk" defense, without first considering whether there are alternative remedies available to protect the child and permit her return to France for the period of time necessary for French courts to make the custody determination; and 3) the district court also erred in relying in part on the pandemic to deny the petition because the record did not include any evidence addressing what specific pandemic related risk returning the child to France would present. View "Jones v. Fairfield" on Justia Law

Father sought the return of his children under the Hague Convention of the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act (ICARA), which implements the Convention. The district court found the repatriation of the minor children to Germany posed a grave risk of psychological harm if in father's custody and therefore ordered that the children be transferred back to Germany in mother's custody until a German court made a custody determination.The Ninth Circuit vacated and remanded the district court's alternative remedy order for the district court to reasonably ensure compliance with its alternative remedy in Germany. The court explained that, because mother wrongfully removed the children, as she conceded, the district court in no way exceeded its authority to mandate the children's return to Germany accompanied by mother. However, in the context of an Article 13(b) finding, the district court needed a fuller record to have sufficient guarantees that the alternative remedy will be enforced in Germany. View "Radu v. Johnson Shon" on Justia Law

Ayla, a San Francisco-based brand, is the registered owner of trademarks for use of the “AYLA” word mark in connection with on-site beauty services, online retail beauty products, cosmetics services, and cosmetics. Alya Skin, an Australian company, sells and ships skincare products worldwide. Ayla sued in the Northern District of California, asserting trademark infringement and false designation of origin under the Lanham Act, 15 U.S.C. 1114, 1125(a).Alya Skin asserted that it has no retail stores, offices, officers, directors, employees, bank accounts, or real property in the U.S., does not sell products in U.S. retail stores, solicit business from Americans, nor direct advertising toward California; less than 10% of its sales have been to the U.S. and less than 2% of its sales have been to California. Alya Skin uses an Idaho company to fulfill shipments outside of Australia and New Zealand. Alya Skin filed a U.S. trademark registration application in 2018, and represented to potential customers that its products are FDA-approved; it ships from, and allows returns to, Idaho Alya Skin’s website listed U.S. dollars as the default currency and advertises four-day delivery to the U.S.The Ninth Circuit reversed the dismissal of the suit. Jurisdiction under Fed.R.Civ.P. 4(k)(2) comports with due process. Alya Skin had minimum contacts with the U.S., and subjecting it to an action in that forum would not offend traditional notions of fair play and substantial justice. The company purposefully directed its activities toward the U.S. The Lanham Act and unfair competition claims arose out of or resulted from Alya Skin’s intentional forum-related activities. View "Ayla, LLC v. Alya Skin Pty. Ltd." on Justia Law

Sura served in the Salvadoran Army and helped local police arrest gang members, including members of MS-13. In February 2016, MS-13 members told him that they had an order for him to disappear. He did not report it to the police because he was concerned that some police officers were also MS-13 members. Sura continued his military service until it was completed, later testifying that he did not want to be AWOL. In May 2016, four men were murdered five kilometers from where Sura was stationed. According to an Interpol Red Notice, an arrest warrant was issued for Sura and others asserting that they murdered four MS-13 gang members.Sura entered the U.S. months later and was removed after stating that he had no fear of returning to El Salvador. Eight days later, he re-entered and was placed in withholding-only proceedings after expressing a fear of returning to El Salvador. Sura applied for withholding of removal and relief under the Convention Against Torture. Sura denied any prior knowledge of either arrest warrant and any role in the murders. Sura testified that he feared returning to El Salvador and being placed in custody based on false charges, where he would be vulnerable to MS-13 and his former colleagues who framed him.The IJ ordered Villalobos Sura removed, finding him statutorily ineligible for withholding of removal under the serious nonpolitical crime bar. The IJ found Sura’s testimony insufficiently credible and that the isolated threat did not amount to past persecution. The BIA affirmed. The Ninth Circuit denied a petition for review. The Interpol Red Notice, among other evidence, created a serious reason to believe Sura committed a serious nonpolitical crime before entering the U.S., rendering him ineligible for withholding of removal. View "Villalobos-Sura v. Garland" on Justia Law

Yañez was shot and killed by a U.S. Border Patrol agent while on the border fence, which is in the United States. After being shot, Yañez fell and landed across the international border. Yañez’s family filed civil claims against the government and individual federal agents.The Ninth Circuit affirmed the rejection of claims under the Alien Tort Statute (ATS) and the Federal Tort Claims Act (FTCA), and a “Bivens” claim. The court rejected an argument that the shooting and Border Patrol’s Rocking Policy, authorizing deadly force in response to rock-throwing, violated an international jus cogens norm against extrajudicial killing and was actionable under the ATS; the ATS does not waive sovereign immunity, even for jus cogens violations. Claims under the FTCA were time-barred. Plaintiff initially did not pursue an FTCA claim because she believed that, under Ninth Circuit precedent, judgment on an FTCA claim would have foreclosed her Bivens claims. Plaintiff amended the complaint to assert FTCA claims after the Supreme Court abrogated that precedent in 2016. The FTCA’s judgment bar did not foreclose a contemporaneously filed Bivens claim when the government had prevailed on the FTCA claim, so the Supreme Court’s decision was irrelevant to this situation. That mistake of law was not outside of plaintiff's control and did not qualify as an extraordinary circumstance supporting equitable tolling. Special factor counseled against extending a Bivens remedy; doing so would challenge a high-level executive policy and implicated national security. View "Quintero-Perez v. United States" on Justia Law

In 1949, the government of Saudi Arabia transferred certain land in that country to an official named Khalid Abu Al-Waleed Al-Hood Al-Qarqani, who leased it to an affiliate of what later became Chevron. Five of Al-Qarqani's heirs now claim that Chevron owes them billions of dollars in rent. Plaintiffs contend that an arbitration clause contained in a separate 1933 agreement between Saudi Arabia and Chevron's predecessor, SOCAL, applies to their dispute. An Egyptian arbitral panel agreed and awarded plaintiffs $18 billion. Plaintiffs then petitioned for enforcement of the arbitral award, but the district court found that the parties had never agreed to arbitrate and therefore held that it lacked jurisdiction over the petition.The Ninth Circuit agreed with the Second Circuit, disagreeing with the Eleventh Circuit, that the absence of an agreement to arbitrate was a reason to deny enforcement on the merits, rather than to dismiss for lack of subject-matter jurisdiction. The panel held that so long as a party makes a non-frivolous claim that an arbitral award is covered by the New York Convention, the district court must assume subject-matter jurisdiction. In this case, the panel affirmed the district court's dismissal for lack of subject-matter jurisdiction as to Chevron USA because it was not named in the arbitral award and plaintiffs advanced no non-frivolous theory of enforcement. The court affirmed the district court's denial of the enforcement petition on the merits as to Chevron Corporation where there was no binding agreement to arbitrate between the parties. View "Al-Qarqani v. Chevron Corp." on Justia Law

Plaintiffs, domestic entities, entered into an insurance contract providing coverage for a Texas townhome complex that they own and operate. The Policy was underwritten by Lloyd’s, members of a foreign organization, and contains a mandatory arbitration provision, providing that the seat of the Arbitration shall be in New York and the Arbitration Tribunal shall apply the law of New York. In 2017, Hurricane Harvey caused an estimated $5,660,000 in damages to the townhome complex. A third-party claims administrator for Lloyd’s concluded that the Policy’s deductible was $3,600,000.Plaintiffs filed a complaint in the Western District of Washington asserting breach of contract, failure to communicate policy changes, and unfair claims handling practices in violation of Washington law, asserting that the deductible should be $600,000. Lloyd’s moved to compel arbitration and stay proceedings, arguing that the Policy’s arbitration provision falls within the scope of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Plaintiffs did not contest that the arbitration provision falls within the Convention’s scope but argued the provision is unenforceable because Washington law specifically prohibits the enforcement of arbitration clauses in insurance contracts. Plaintiffs cited the McCarran-Ferguson Act, 15 U.S.C. 1011–15, which provides that state insurance law preempts conflicting federal law. On interlocutory review, the Ninth Circuit upheld an order granting Lloyd’s motion. Article II, Section 3 of the Convention is self-executing, and therefore is not an “Act of Congress” subject to reverse-preemption under the McCarran-Ferguson Act. View "CLMS Management Services Limited Partnership v, Amwins Brokerage of Georgia" on Justia Law

In a prior opinion, the Ninth CIrcuit held that SS Mumbai could not equitably estop SS Bangalore from avoiding arbitration. Mumbai, a non-signatory to a partnership deed that contained an arbitration provision, argued that, based on the arbitration provision, Indian law applied to the question of whether it could compel Bangalore to arbitrate.The Supreme Court vacated and remanded based on its holding that the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards does not conflict with the enforcement of arbitration agreements by non-signatories under domestic law equitable estoppel doctrines.On remand, the Ninth Circuit affirmed the district court’s order denying Mumbai’s motion to compel arbitration. While a nonsignatory can compel arbitration in a Convention case, the allegations, in this case, do not implicate the arbitration clause—a prerequisite for compelling arbitration under the equitable estoppel framework. The court declined to apply Indian law because whether Mumbai could enforce the partnership deed as a non-signatory was a threshold issue for which it did not look to the agreement itself. The deed’s arbitration provision applied to disputes “arising between the partners” and not also to third parties such as Mumbai. View "Setty v.. Shrinivas Sugandhallayah, LLP" on Justia Law