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

The Ninth Circuit affirmed the district court's dismissal of a copyright infringement action brought by renowned photographer Jacobus Rentmeester against Nike. Rentmeester alleged that Nike infringed a famous photograph he took of Michael Jordan when Nike commissioned its own photograph of Jordan and then used that photo to create the "Jumpman" logo. The panel held that, although Rentmeester plausibly alleged that he owned a valid copyright in his photo and a presumption that the Nike photo was the product of copying rather than independent creation, he failed to plausibly allege that Nike copied enough of the protected expression from his photo to establish unlawful appropriation. The panel explained that Rentmeester was entitled to protection only for the way the pose was expressed in his photograph, a product of not just the pose but also the camera angle, timing, and shutter speed he chose. In this case, Rentmeester's photo was entitled to broad rather than thin protection. Nonetheless, the panel held that the works at issue were as a matter of law not substantially similar, and thus the Jumpman logo was even less similar to Rentmeester's photo than the Nike photo itself. View "Rentmeester v. Nike, Inc." on Justia Law

The Ninth Circuit certified the following questions regarding D.C. partnership law: (1) Under District of Columbia law does a dissociated partner owe a duty to his or her former law firm to account for profits earned post-departure on legal matters that were in progress but not completed at the time of the partner's departure, where the partner's former law firm had been hired to handle those matters on an hourly basis and where those matters were completed at another firm that hired the partner? (2) If the answer to question (1) is "yes," then does District of Columbia law allow a partner's former law firm to recover those profits from the partner's new law firm under an unjust enrichment theory? (3) Under District of Columbia law what interest, if any, does a dissolved law firm have in profits earned on legal matters that were in progress but not completed at the time the law firm was dissolved, where the dissolved law firm had been retained to handle the matters on an hourly basis, and where those matters were completed at different pre-existing firms that hired partners of the dissolved firm post-dissolution? View "Diamond v. Hogan Lovells US LLP" on Justia Law

Petitioner filed suit under the Whistleblower Protection Act against the Department of Defense, alleging that the Department took several adverse personnel actions against him in retaliation for his protected disclosures about misconduct at the Defense Contract Audit Agency (DCAA). The Ninth Circuit denied the petition for review of the Board's adverse decision. The panel considered all the Carr factors (Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999)), and held that substantial evidence supported the Board's determination that the agency proved, by clear and convincing evidence, that it would have taken the same disciplinary action against petitioner in the absence of his whistleblowing activities. The panel also held that the administrative judge did not abuse its discretion by excluding witnesses, as well as documents and emails. View "Duggan v. Department of Defense" on Justia Law

Petitioner alleged that the Army terminated him and excluded him from his work site because he had made complaints that were protected under the Whistleblower Protection Act of 1989. The Ninth Circuit dismissed the petition for review of the Board's adverse decision, holding that the Army was the only proper respondent; petitioner received due process; and the Board's decision on the merits was supported by substantial evidence and was procedurally proper. Accordingly, the court denied in part and granted in part as to the petition for review of the Army's adverse decision, remanding for further proceedings. View "Johnen v. U.S. Merit Systems Protection Board" on Justia Law

The Ninth Circuit reversed the district court's grant of summary judgment in favor of officers in a 42 U.S.C. 1983 action. Plaintiff filed suit alleging that officers violated his Fourth Amendment rights when they forced their way into his home without a warrant, threw him to the ground and then tasered and arrested him. In Georgia v. Randolph, 547 U.S. 103 (2006), the Supreme Court held that a warrantless search was unreasonable as to a defendant who was physically present and expressly refused consent to entry. The panel held that Randolph closely paralleled this case, and the warrantless entry into plaintiff's home violated the Fourth Amendment because none of the lawful exceptions to the warrant requirement applied. Accordingly, the court remanded for further proceedings. View "Bonivert v. City of Clarkston" on Justia Law

The en banc court affirmed the district court's denial of AT&T Mobility's motion to dismiss an action brought by the FTC alleging that AT&T's data-throttling plan was unfair and deceptive.After determining that the district court had federal question jurisdiction, the en banc court held that the Federal Trade Commission Act's, 15 U.S.C. 45(a)(1), (2), common-carrier exemption was activity-based, and therefore the phrase "common carriers subject to the Acts to regulate commerce" provided immunity from FTC regulation only to the extent that a common carrier was engaging in common carrier services. The en banc court also held that the FCC's order reclassifying mobile data service did not rob the FTC of its jurisdiction or authority over conduct occurring before the order. View "FTC V. AT&T Mobility, LLC" on Justia Law

A plan administrator is not an Employee Retirement Income Security Act (ERISA) fiduciary when negotiating its compensation with a prospective customer. The Ninth Circuit reversed the district court's order denying defendants' motion to dismiss an action alleging breach of fiduciary duties in connection with a retirement plan. The panel held that defendant was not a fiduciary with respect to its receipt of revenue sharing payments from investment managers because the payments were fully disclosed before the provider agreements were signed and did not come from plan assets. The panel agreed with other circuits and held that defendant also was not a fiduciary with respect to its withdrawal of preset fees from plan funds. The panel explained that when a service provider's definitively calculable and nondiscretionary compensation was clearly set forth in a contract with the fiduciary-employer, collection of fees out of plan funds in strict adherence to that contractual term was not a breach of the provider’s fiduciary duty. The panel vacated class certification orders and remanded with instructions to dismiss the complaint. View "Santomenno v. Transamerica Life Insurance Co." on Justia Law

The Ninth Circuit reversed the district court's dismissal of a 42 U.S.C. 1983 action alleging that a pretrial release officer improperly procured a warrant for plaintiff's arrest in violation of her Fourth Amendment right against unreasonable seizures. The panel held that the officer was not protected by absolute prosecutorial immunity for a defective arrest warrant where, given the similarities between his role and those of a parole officer and a law enforcement officer, his action in submitting the bare unsigned warrant should be seen as making a recommendation that the warrant be signed, just like a parole officer recommending revocation or like a police officer submitting documentation for an arrest warrant to a judge. View "Patterson v. Van Arsdel" on Justia Law

The Ninth Circuit affirmed the district court's grant of the Forest Service's motion to dissolve an injunction enjoining the Lonesome Wood 2 Project. The Project was designed to reduce the threat of wildfire in a populated area of the Gallatin National Forest in Montana. The panel declined to overrule the Forest Service's determination that a thesis outlining important predictors for overall lynx reproductive success did not require the Forest Service to reevaluate its approval of the project. The panel rejected the argument that the Forest Service failed to comply with the obligation to ensure species viability and that the Forest Service failed to comply with its Gallatin Forest Plan obligation to monitor population trends for two management indicator species. Finally, the panel held that the Forest Service took a "hard look" at the project and did not act arbitrarily or capriciously. View "Native Ecosystems Council v. Marten" on Justia Law

The en banc court vacated the district court's summary judgment for AgriCap in an action brought by produce growers under the Perishable Agricultural Commodities Act (PACA).The en banc court joined other circuits and adopted a "true sale" test to determine whether assets transferred in transactions that are labeled "sales" remained assets of a PACA trust. The court held that a court must conduct a two-step inquiry when determining whether the questioned transaction is a sale or creates a security interest, i.e., a loan. First, a court must apply a threshold true sale test of which the transfer-of-risk is a key, but not the sole, factor. If a court concludes that there was a true sale, it must then determine if the transaction was commercially reasonable. The court held that a district court should look to the substance of the transaction to determine whether the transaction is a true sale or a secured loan. In doing so, the transfer of risk should be a primary factor to which a court looks. View "G.W. Palmer & Co. v. Agricap Financial" on Justia Law