Plaintiffs sought to enjoin enforcement of Senate Bill 1172, which banned state-licensed mental health providers from engaging in "sexual orientation change efforts" ("SOCE") with patients under 18 years of age, because it violated the First Amendment and infringed on several other constitutional rights. Undertaking plenary review, the court held that SB 1172 was a regulation of professional conduct and, therefore, did not violate the free speech rights of SOCE practitioners or minor patients under rational basis review. The court also held that the statute was neither vague nor overbroad and did not violate parents' fundamental rights. Accordingly, the court reversed the order granting preliminary relief in Case No. 13-15023 and affirmed the denial of preliminary relief in Case No. 12-17681. View "Pickup, et al. v. Brown, Jr., et al." on Justia Law
Posted in: Civil Rights, Constitutional Law, Professional Malpractice & Ethics, U.S. 9th Circuit Court of Appeals
Defendant appealed the district court's denial of his 28 U.S.C. 2255 federal habeas corpus petition based upon the Supreme Court's decision in Skilling v. United States, which narrowed the scope of the honest services fraud theory. Defendant,a former attorney and trustee of private trusts, pleaded guilty to honest services fraud. The government conceded that defendant was actually innocent of honest services fraud in light of Skilling, which confined the reach of the offense to cases of bribes and kickbacks. The court vacated the district court's dismissal of defendant's honest services fraud claim where no evidence suggested that defendant either engaged in bribery or received kickbacks. View "United States v. Avery" on Justia Law
Posted in: Criminal Law, Legal Ethics, Professional Malpractice & Ethics, Trusts & Estates, U.S. 9th Circuit Court of Appeals, White Collar Crime
Plaintiffs, current and former employees of Amgen and AML, participated in two employer-sponsored pension plans, the Amgen Plan and the AML Plan. The Plans were employee stock-ownership plans that qualified as "eligible individual account plans" (EIAPs) under the Employee Retirement Income Security Act (ERISA), 29 U.S.C. 1107(d)(3)(A). Plaintiffs filed an ERISA class action against Amgen, AML, and others after the value of Amgen common stock fell, alleging that defendants breached their fiduciary duties under ERISA. The court concluded that defendants were not entitled to a presumption of prudence under Quan v. Computer Sciences Corp., that plaintiffs have stated claims under ERISA in Counts II through VI, and that Amgen was a properly named fiduciary under the Amgen Plan. Therefore, the court reversed the decision of the district court and remanded for further proceedings. View "Harris v. Amgen" on Justia Law
Posted in: Class Action, ERISA, Labor & Employment Law, Professional Malpractice & Ethics, U.S. 9th Circuit Court of Appeals
Acting on the bad advice of his accountant, plaintiff, the executor of an estate, filed the estate-tax return several months late. Consequently, the IRS assessed significant penalties against the estate. Plaintiff initiated this action seeking a refund of the penalty. The court concluded that it was plaintiff's duty to ascertain the correct extended filing deadline. By relying on his accountant's advice about that nonsubstantive matter, he failed to exercise ordinary business care and prudence, and he could not show reasonable cause to excuse the penalty. Therefore, the court affirmed the judgment of the district court. View "Knappe v. United States" on Justia Law
Posted in: Professional Malpractice & Ethics, Tax Law, Trusts & Estates, U.S. 9th Circuit Court of Appeals
The central issue on appeal in this case arose from an order that denied a pretrial special motion to dismiss under Nevada's anti-SLAPP statute (Nev. Rev. Stat. 41.635-670), and whether that order was appealable under the collateral order doctrine as established by Supreme Court precedent. In 2009, Defendant-Appellant attorney Scott Ferrell sent demand letters to Plaintiffs-Appellees Metabolic Research, Inc. (Metabolic), at its address in Las Vegas, Nevada, and to General Nutrition Centers, Inc. (GNC), at its address in Pittsburgh, Pennsylvania. The demand letters purported to notify the recipients that they had violated California law by falsely advertising the properties and potential benefits of "Stemulite," which they marketed as a natural fitness supplement. Defendant represented that he was acting on behalf of three individuals and a class of similarly situated people, all of whom he alleged purchased Stemulite in California, in reliance on the supposed false advertising, and had not received the purported benefits. In his letters, Defendant set out his allegations, and concluded them with offers to compromise and allow Plaintiffs time to agree to an injunction. If Plaintiffs did not accept his offer, Defendant stated he would file suit. Metabolic filed suit in Nevada against Defendant and his putative class action plaintiffs charging them with extortion, racketeering and conspiracy. Defendant removed the case to the federal district court in Nevada, then moved to dismiss Metabolic's case based on Nevada's anti-SLAPP statute. In its order dismissing Ferrell’s motion, the district court found that Ferrell had not established that the demand letter to Metabolic constituted a good-faith communication in furtherance of the right to petition because it concluded that Nevada’s anti-SLAPP legislation only protected communications made directly to a governmental agency and did not protect a demand letter sent to a potential defendant in litigation. Finding that the Nevada legislature did not intend for its anti-SLAPP law to function as an immunity from suit, Defendant's motion was not immediately appealable. The Ninth Circuit held that the district court's denial of Defendant's special motion was not made in error.
Posted in: Class Action, Constitutional Law, Professional Malpractice & Ethics, U.S. 9th Circuit Court of Appeals
Plaintiff, the former in-house counsel for Toyota Motor Corp. (TMS), presented TMS with a claim asserting, inter alia, constructive wrongful discharge related to TMS's alleged unethical discovery practices. TMS and plaintiff settled the claims and entered into a Severance Agreement. TMS subsequently sued in state superior court seeking a temporary restraining order (TRO) and permanent injunctive relieve to prevent plaintiff from violating the attorney-client privilege and plaintiff filed a cross complaint for a TRO and a permanent injunction prohibiting TMS from interfering with his business practices and those of his consulting business. The court held that the Federal Arbitration Act (FAA), 9 U.S.C. 1 et seq., governed the Severance Agreement; the FAA authorized limited review of the Final Award; and the arbitrator did not manifestly disregard the law governing the Severance Agreement where the arbitrator's writing was sufficient under the terms of the Severance Agreement and the arbitrator did not manifestly disregard California law in addressing plaintiff's affirmative defenses. The court also held that the district court did not err in denying plaintiff's contempt motion. Accordingly, the judgment was affirmed.
Posted in: Arbitration & Mediation, Contracts, Labor & Employment Law, Legal Ethics, Professional Malpractice & Ethics, U.S. 9th Circuit Court of Appeals
WPP Luxembourg Gamma Three Sarl (WPP) appealed from the district court's dismissal of the amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendant and cross-appellants cross-appealed the district court's decision to dismiss some of WPP's claims without prejudice. WPP generally alleged violations of the Securities and Exchange Act of 1934, 15 U.S.C. 78(a), that amidst large operating losses unknown to investors, Spot Runner executives solicited WPP to buy shares in it at the same time that executives of the company were selling personally owned shares. The court affirmed the dismissal of the Rule 10b-5(a) and (c) fraudulent scheme against all of the defendants, the dismissal of the Rule 10b-5(b) fraudulent omissions claim against the general counsel for Spot Runner and Spot Runner, and the dismissal of the Rule 10b-5 insider trading claim against Spot Runner. The court reversed the dismissal of the Rule 10b-5(b) omission claims against the founders of Spot Runner.
Posted in: Business Law, Contracts, Corporate Compliance, Professional Malpractice & Ethics, Securities Law, U.S. 9th Circuit Court of Appeals
This case arose from the IRS's investigation of a type of tax shelter known as a "Son-of-Boss" (a variant of the Bond and Options Sales Strategy (BOSS) shelter). Petitioner appealed the Tax Court's decision in favor of the Commissioner of Internal Revenue. The court held that the IRS properly sent petitioner an affected item notice of deficiency because the deficiency required a partner-level determination. The court also held that the Tax Court had jurisdiction to redetermine affected items based on the partnership item determinations in the Final Partnership Administrative Adjustment (FPAA). Therefore, the court affirmed the judgment of the Tax Court.
Posted in: Business Law, Corporate Compliance, Professional Malpractice & Ethics, Securities Law, Tax Law, U.S. 9th Circuit Court of Appeals
Plaintiff sued defendants, the Bureau of Land Management (BLM), the Alaska Department of Transportation (Alaska), and the Alyeska Pipeline Service Company (Alyeska), in federal court, alleging causes of action for inverse condemnation, injunctive relief, nuisance, breach of fiduciary duties, and civil rights violations. At issue was whether the district court properly dismissed the action against the BLM and Alaska on the basis of sovereign immunity. The court held that federal sovereign immunity barred plaintiff's inverse condemnation, injunctive relief, and civil rights violations claims against the United States, but that the Federal Tort Claims Act, 25 U.S.C. 345, could provide a waiver of the government sovereign immunity for plaintiff's nuisance and breach of fiduciary duties claims. Additionally, the court held that the Eleventh Amendment barred plaintiff's action against Alaska in its entirety. Accordingly, the judgment was affirmed in part and reversed in part and remanded.
Posted in: Civil Rights, Constitutional Law, Government & Administrative Law, Professional Malpractice & Ethics, Real Estate & Property Law, U.S. 9th Circuit Court of Appeals, Zoning, Planning & Land Use
Defendants engaged in discovery misconduct that was sufficiently egregious to cause the district court to enter an order of default against them. Although defendants subsequently challenged the default order as erroneous, defendants did not challenge the order of default by way of a Federal Rule of Civil Procedure 55(c) or 60(b). At issue was whether Judge Real, a district court judge, had the power to impose default as a sanction for discovery misconduct and assuming such power, whether Judge Real abused his discretion by imposing default rather than lesser sanctions. The court held that defendants' failures to comply with orders of the court provided Judge Real with the power under Rule 37(b) to impose sanctions sua sponte, up to and including default and that Judge Wilson appropriately revisited previous orders of the court when he replaced Judge Real after Judge Real recused himself. The court also held that the district court possessed the power to impose the sanction of default and that the district court did not abuse its discretion by doing so. Accordingly, the judgment was affirmed.
Posted in: Contracts, Labor & Employment Law, Legal Ethics, Professional Malpractice & Ethics, U.S. 9th Circuit Court of Appeals