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

The Ninth Circuit affirmed the dismissal of plaintiff's suit alleging securities fraud under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and SEC Rule 10b-5, 15 U.S.C. 78j(b) and 78t(a), 17 C.F.R. 240.10b-5. Plaintiff alleged that defendants violated these statutes in connection with statements regarding Align's goodwill valuation of its subsidiary, Cadent. The Ninth Circuit held that the three standards for pleading falsity of opinion statements articulated in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund, apply to Section 10(b) and Rule 10b-5 claims; plaintiff has failed to sufficiently plead falsity under any of the three Omnicare standards; plaintiff has also failed to sufficiently plead scienter; and, because plaintiff has inadequately alleged a primary violation of federal securities law, plaintiff cannot establish control person liability. View "City of Dearborn Heights Act 345 Police & Fire Retirement System v. Align Technology" on Justia Law

The Ninth Circuit affirmed the grant of summary judgment to defendants in plaintiff's suit challenging the constitutionality of section 134-7 of the Hawaii Revised Statutes, which prohibit plaintiff from owning or possessing firearms because of his 1997 state law conviction for harassment. Although plaintiff stated that he challenged only section 134-7, that statute, in relevant part, merely incorporates federal law. Therefore, plaintiff's argument focuses on the latter federal statutes. The Ninth Circuit held that, as a matter of statutory construction, the unavailability of a procedure for either expungement, set-aside, pardon, or civil rights restoration does not remove plaintiff from the ambit of 18 U.S.C. 922(g)(9)'s prohibition or, by extension, section 134-7(a)'s prohibition. In regard to plaintiff's Second Amendment challenge, the Ninth Circuit held that, under intermediate scrutiny, the statute addressed a substantial governmental interest and was tailored sufficiently to satisfy intermediate scrutiny. In this case, section 922(g)(9) was not unconstitutionally applied to plaintiff where his argument that his harassment conviction occurred many years ago, and he has not committed any other crimes since that time, was not meaningfully distinguishable from the one the court rejected in United States v. Chovan. Furthermore, plaintiff failed to avail himself of the one restoration mechanism that was available to him under Hawaii law, and he was in no position to argue that Hawaii's restoration mechanisms were constitutionally insufficient. View "Fisher v. Kealoha" on Justia Law

Walter Liew and his company, USAPTI, challenged eight counts of conviction under the Economic Espionage Act of 1996 (EEA), 18 U.S.C. 1831(a), for charges related to their unauthorized use of DuPont chloride-route technology for producing titanium dioxide. Defendants also appealed their convictions for conspiracy to tamper with witnesses and evidence. The Ninth Circuit held that the district court did not err by giving a jury instruction regarding compilations; by rejecting a public-disclosure instruction; and by rejecting the reverse engineering and general knowledge instructions. The Ninth Circuit also held that defendants waived their right to have their argument related to the conspiracy and attempt instructions reviewed; even if this issue were reviewable, an intervening Ninth Circuit decision resolved it (United States v. Nosal). The Ninth Circuit rejected challenges to the sufficiency of trade secret evidence regarding substantive trade secret counts. However, the Ninth Circuit reversed defendants' convictions as to conspiracy to obstruct justice where the statement at issue tacked too close to a general denial to constitute obstruction of justice, and as to witness tampering where the evidence was insufficient to prove beyond a reasonable doubt that Liew intimidated, threatened or corruptly persuaded a witness. Finally, the Ninth Circuit held that the district court did not err by not requiring the prosecution to disclose rough notes of the FBI's interviews with a deceased coconspirator. Accordingly, the Ninth Circuit affirmed in part, reversed in part, vacated in part, and remanded. View "United States v. Liew" on Justia Law

The Ninth Circuit reversed the dismissal of plaintiff's putative class action filed under California's Unfair Competition Law (UCL), Cal. Bus. & Prof. Code 17200–17210, and common law, alleging that AARP, through its arrangement with Medigap, transacts insurance without a license in violation of the California Insurance Code. The Ninth Circuit held that plaintiff stated a plausible claim at the motion to dismiss stage that AARP "solicits" insurance without a license, and consequently committed an unlawful act in violation of the UCL. Plaintiff also adequately alleged that AARP violated the UCL's "fraudulent" and "unfair" prongs where plaintiff plausibly alleged that members of the public are likely to be deceived into paying AARP's additional 4.95% fee because AARP collects and labels the the fee as a "royalty" rather than a "commission." View "Friedman v. AARP" on Justia Law

The Ninth Circuit reversed the dismissal of a putative class action seeking refunds of baggage fees based on preemption by the Airline Deregulation Act, 49 U.S.C. 1301 et seq. Plaintiff filed suit, alleging various breach of contract claims, seeking a refund of a $15 baggage claim fee, because her bag did not arrive on time and was consequently delivered to her the next day. American Airlines v. Wolens is controlling as to plaintiff's breach of contract claim. In this case, because plaintiff's claim was for breach of contract of a voluntarily assumed contractual undertaking, and she pleaded breach of contract, the claim was not preempted by the Airline Deregulation Act as construed by Wolens. View "Hickcox-Huffman v. US Airways" on Justia Law

The Ninth Circuit affirmed the denial of defendant's motion for a sentence reduction under 18 U.S.C. 3582(c)(2), in light of Sentencing Guidelines Amendment 782, holding that defendant's original sentence was not actually "based on" a subsequently lowered guideline range. The Ninth Circuit noted that, given defendant's criminal history, in light of Amendment 780 and USSG 1B1.10(c), defendant's "applicable guideline range" would be lowered because of Amendment 782. However, because this inquiry goes only to the second requirement of section 3582(c)(2), it does not resolve whether, as a threshold matter, his original sentence was "based on" the guideline range the district court initially calculated. View "United States v. Rodriguez-Soriano" on Justia Law

The Ninth Circuit vacated convictions related to defendant's guilty plea on the ground that she was constructively denied her right to counsel when the district court denied her motions to substitute counsel without conducting an adequate inquiry. In this case, defendant did everything in her power to alert the district court to her belief that she was receiving inadequate assistance of counsel; the record reflected serious breakdowns in communicaiton and trust; defendant filed her motions promptly; and even if her motions could be considered untimely; the district court's failure to conduct an adequate inquiry and the extent of the conflict outweigh any untimeliness. The Ninth Circuit concluded that there was a substantial risk that defendant agreed that she was satisfied with her attorney's performance because the magistrate judge pressured her to accept the plea and she knew that she had to make that statement to enter the plea. View "United States v. Velazquez" on Justia Law

The Ninth Circuit granted a petition for review and remanded for further proceedings, holding that it had jurisdiction over petitions for review of reasonable fear determinations made in connection with the reinstatement of expedited removal orders; the BIA's dismissal of petitioner's appeal for lack of jurisdiction was the final order of removal; and therefore, the petition for review was timely because it was filed less than 30 days after that order. The Ninth Circuit also held that the IJ abused his discretion in denying petitioner's motion to reopen and reconsider; contrary to the IJ's holding, the court's precedents make clear that economic extortion on the basis of a protected characteristic can constitute persecution; and the IJ failed to consider the question of petitioner's family ties. View "Ayala v. Sessions" on Justia Law

The court affirmed the FWS's finding that listing the whitebark pine as a threatened or endangered species was "warranted but precluded." Wildwest asserted that FWS's decision was arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law. Determining that the case was not moot, the court concluded that FWS was not bound to list species based solely on the degree of threat they face as demonstrated by the assigned Listing Priority Number (LPN), that instead it could properly consider factors outside of those listed in the guidelines, and further that FWS's decision contained a sufficient “description and evaluation of the reasons and data on which the finding was based” to satisfy the Endangered Species Act (ESA), 16 U.S.C. 1531-1544. View "Wildwest Institute v. Kurth" on Justia Law

The court affirmed the denial of a motion to intervene in a False Claims Act (FCA), 31 U.S.C. 3729-3733, suit brought by the Government against Sprint because the movant did not meet the requirements in the four-part test set out in Sw. Ctr. for Biological Diversity v. Berg. John C. Prather had filed an earlier qui tam suit against Sprint and others, alleging the companies were defrauding federal and state governments. The Government elected not to intervene and the district court later dismissed Prather's suit for lack of jurisdiction. The Government then filed its own FCA suit against Sprint and the district court denied Prather's motion to intervene based on lack of standing. As a preliminary matter, the court agreed with the Fourth Circuit that the parties' settlement and dismissal of a case after the denial of a motion to intervene does not as a rule moot a putative-intervenor's appeal. Here, the Government's settlement agreement with Sprint and the dismissal of the underlying action did not moot this appeal. On the merits, Prather lacked a significantly protectable interest in this case, the statute's qui tam recovery provisions in section 3730(d) did not apply to relators jurisdictionally barred under section 3730(e)(4); and Prather cannot obtain a monetary bounty under the FCA on his jurisdictionally barred claims. View "United States v. Sprint Communications" on Justia Law