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

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The Ninth Circuit affirmed the district court's grant of summary judgment to defendants in an action brought by plaintiff, a licensing company, alleging that the Burbank High School student show choirs failed to obtain licenses for their use of copyrighted sheet music in arranging a show choir performance. The panel held that plaintiff lacked standing to sue as to three of the four musical works at issue, and that the defense of fair use rendered the use of the fourth work noninfringing. In regard to the three works, plaintiff received its interests in the three songs from individual co-owners of copyright, without the consent of the other co-owners, and therefore held only nonexclusive licenses in those works. The panel held that the use of the fourth work was a fair use in light of the limited and transformative nature of the use and the work's nonprofit educational purposes in enhancing the educational experience of high school students. Finally, the panel held that the district court abused its discretion in denying defendants' motion for attorneys' fees under 17 U.S.C. 505, and remanded for the calculation of the award. View "Tresóna Multimedia, LLC v. Burbank High School Vocal Music Ass'n" on Justia Law

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Plaintiffs filed a class action against LSW, a life insurance company, alleging that it violated California law concerning policy investment information. Plaintiffs argued that LSW's illustrations of potential earnings violate California's Unfair Competition Law. The Ninth Circuit affirmed the district court's class certification order, holding that any misapplication of Briseno v. ConAgra Foods, Inc., 844 F.3d 1121, 1133 (9th Cir. 2017), did not meaningfully influence the district court's predominance analysis. Furthermore, the panel held that there was no separate error related to the class definition. The panel also held that plaintiffs' attempted appeals of the district court's certification and reconsideration orders are untimely and procedurally improper. Therefore, the panel did not reach the merits of plaintiffs' arguments regarding the certification decision. Finally, the panel denied plaintiffs' motion to take judicial notice of the petition to appeal and the insurer's answer. View "Walker v. Life Insurance Company of the Southwest" on Justia Law

Posted in: Class Action
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After debtor made unauthorized and fraudulent transfers of funds during the Chapter 13 proceeding, the bankruptcy court converted the proceedings to Chapter 7 in response, and then debtor argued that the transferred funds were no longer in the estate. The Ninth Circuit affirmed the Bankruptcy Court and the Bankruptcy Appellate Panel's determination that the transferred funds should remain property of the Chapter 7 estate, which would mean that the Chapter 7 trustee had authority to recover them. The panel held that debtor transferred the funds with the fraudulent purpose of avoiding payments to creditors and those funds remained within his constructive possession or control. Therefore, the funds should be considered property of the converted estate under 11 U.S.C. 348(f)(1)(A). View "Brown v. Barclay" on Justia Law

Posted in: Bankruptcy
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The Ninth Circuit reversed the district court's dismissal of a qui tam action brought by relator under the False Claims Act, alleging that defendants submitted, or caused to be submitted, Medicare claims falsely certifying that patients' inpatient hospitalizations were medically necessary. After determining that it had jurisdiction, the panel held that a plaintiff need not allege falsity beyond the requirements adopted by Congress in the FCA, which primarily punishes those who submit, conspire to submit, or aid in the submission of false or fraudulent claims. The panel wrote that Congress imposed no requirement of proving "objective falsity," and the panel had no authority to rewrite the statute to add such a requirement. The panel held that a doctor’s clinical opinion must be judged under the same standard as any other representation. The panel explained that a doctor, like anyone else, can express an opinion that he knows to be false, or that he makes in reckless disregard of its truth or falsity. Therefore, a false certification of medical necessity can give rise to FCA liability. The panel also held that a false certification of medical necessity can be material because medical necessity is a statutory prerequisite to Medicare reimbursement. View "Winter v. Gardens Regional Hospital & Medical Center, Inc." on Justia Law

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The Ninth Circuit affirmed the district court's application of a fifteen-year-minimum sentencing enhancement under the Armed Career Criminal Act (ACCA) to defendant's sentence for being a felon in possession of a firearm. The panel held that defendant's predicate domestic violence convictions under California Penal Code 273.5 qualified as categorical violent felonies, and that defendant's arguments to the contrary were foreclosed by United States v. Laurico-Yeno, 590 F.3d 818 (9th Cir. 2010), and its progeny. The panel rejected defendant's claim that the Sixth Amendment requires a jury, not a sentencing judge, to find that a defendant's prior convictions were for crimes on different occasions. Rather, the panel held that defendant's argument was foreclosed by United States v. Grisel, 488 F.3d 844 (9th Cir. 2007) (en banc), which held that a sentencing judge may find the dates of prior offenses in deciding if a defendant has committed three or more violent felonies. Therefore, the district court did not err in finding that defendant committed three separate offenses. View "United States v. Walker" on Justia Law

Posted in: Criminal Law
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The Ninth Circuit affirmed defendant's conviction of wire fraud and filing false tax returns. The jury found that defendant embezzled over $300,000 from the company for which he served as managing member and president. The panel overruled its prior decisions in light of the Supreme Court's intervening decision in Shaw v. United States, 137 S. Ct. 462 (2016), and held that wire fraud under 18 U.S.C. 1343 requires the intent to deceive and cheat, and that the jury charge instructing that wire fraud requires the intent to "deceive or cheat" was therefore erroneous. However, in this case, the panel held that the erroneous instruction was harmless. The panel noted that it was deeply troubled by an Assistant U.S. Attorney's disregard for elementary prosecutorial ethics, but that the misconduct did not entitle defendant to any relief. The attorney here had a personal and financial interest in the outcome of the case. The panel wrote that as soon as the Department of Justice became aware of the impropriety, it took every necessary step to cure any resulting taint, including turning over the entire prosecution of the case to disinterested prosecutors from the Southern District of California. Finally, the panel found defendant's remaining arguments to be without merit. View "United States v. Miller" on Justia Law

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Beyond a plain statement disclosing "that a consumer report may be obtained for employment purposes," some concise explanation of what that phrase means may be included as part of the "disclosure" required by the Fair Credit Reporting Act (FCRA), 15 U.S.C. 1681b(b)(2)(A)(i). The right provided by the FCRA to dispute inaccurate information in a consumer report does not require employers to provide job applicants or employees with an opportunity to discuss their consumer reports directly with the employer. Instead, the FCRA requires that an employer provide, in a pre-adverse action notice to the consumer, a description of the consumer's right to dispute with a consumer reporting agency the completeness or accuracy of any item of information contained in the consumer’s file at the consumer reporting agency. The Ninth Circuit affirmed in part and reversed in part in this putative class action against Fred Meyer, alleging that Fred Meyer willfully violated the FCRA by providing an unclear disclosure form encumbered by extraneous information and failing to notify plaintiff in the pre-adverse action notice that he could discuss the consumer report obtained about him directly with Fred Meyer. In this case, the fourth and fifth paragraphs of the disclosure violated the FCRA's standalone disclosure requirement. The panel remanded for the district court to decide in the first instance whether the remaining language of the disclosure satisfied the separate "clear and conspicuous" requirement. View "Walker v. Fred Meyer, Inc." on Justia Law

Posted in: Consumer Law
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The en banc court affirmed the district court's denial of a habeas corpus petition as untimely. Petitioner argued that he was entitled to extend the one-year limitations period set forth in 28 U.S.C. 2244(d)(1) by equitable tolling for the 66 days between the date his conviction became final in the state appellate court and the date when his attorney informed him of that unsuccessful appeal and provided him with the state appellate record. The en banc court held that petitioner failed to exercise reasonable diligence during the 10 months available after he received his record from his attorney and before the time allowed by the statute of limitations expired. In view of the historic practice of courts of equity and modern Supreme Court precedent governing equitable tolling, the en banc court made two related holdings. First, for a litigant to demonstrate "he has been pursuing his rights diligently," and thus satisfies the first element required for equitable tolling, he must show that he has been reasonably diligent in pursuing his rights not only while an impediment to filing caused by an extraordinary circumstance existed, but before and after as well, up to the time of filing his claim in federal court. Second, and relatedly, it is only when an extraordinary circumstance prevented a petitioner acting with reasonable diligence from making a timely filing that equitable tolling may be the proper remedy. In this case, the en banc court held that petitioner was not entitled to relief. View "Smith v. Davis" on Justia Law

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Plaintiff filed a putative class action alleging that Zumiez failed to pay employees at its California retail stores reporting time pay for "Call-In" shifts. The district court denied Zumiez's motion for judgment on the pleadings. While this appeal was pending, the California Court of Appeal decided Ward v. Tilly's, Inc., 243 Cal. Rptr. 3d 461 (Ct. App. 2019), review denied (May 15, 2019), which held that reporting time pay must be paid in a closely analogous situation, an outcome consistent with the district court's denial of Zumiez's motion for judgment on the pleadings here. The Ninth Circuit followed Ward's controlling interpretation of the law and affirmed the district court's judgment with respect to the reporting time pay claim. The panel also affirmed the district court's judgment as to the failure-to-pay-minimum-wage claim and the related remaining claims. In this case, the allegations were sufficient to defeat Zumiez's motion for judgment on the pleadings. The panel reversed as to plaintiff's claim for indemnification and remanded for the district court to allow plaintiff leave to amend the complaint to include more specific allegations. The panel remanded for further proceedings. View "Herrera v. Zumiez, Inc." on Justia Law

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The Ninth Circuit affirmed the district court's dismissal of a 42 U.S.C. 1983 petition raising an as-applied challenge to the Expedited Conversion Program. The Program allows property owners to convert their tenancy-in-common properties into condominium properties on the condition that the owners agree to offer any existing tenants lifetime leases in units within the converted property. The panel held that plaintiffs' takings challenge was unripe, because plaintiffs did not ask the City for an exemption from the lifetime lease requirement, and thus failed to satisfy the separate finality requirement in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985). The finality requirement survived Knick v. Township of Scott, 139 S. Ct. 2162 (2019), and consequently continues to be a requirement for bringing regulatory takings claims such as plaintiffs' in federal court. Furthermore, plaintiffs knowingly waived their right to seek an exemption and their arguments to the contrary were unpersuasive. View "Pakdel v. City and County of San Francisco" on Justia Law