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

JL Beverage filed suit against Jim Beam, alleging trademark infringement, false designation of origin, and unfair competition. The district court granted summary judgment for Jim Beam. In its summary judgment ruling, the district court used the standard applicable to preliminary injunctions instead of the standard for summary judgment rulings. Balancing the Sleekcraft factors as a whole, the court concluded that there is a genuine dispute of material fact as to the likelihood of consumer confusion. In this case, a reasonable fact-finder could conclude that: the JLV Mark has conceptual strength because the Mark’s salient feature, the color-coordinated lips, requires consumers to use their imagination to connect the color to the vodka flavor; the Lips Mark has conceptual strength because the lips have no commonly understood connection to the vodka product; Johnny Love Vodka does or does not have commercial strength (because a finding of either would support one of JL Beverage’s theories of confusion–reverse or forward); Johnny Love and Pucker Vodka are related flavored-liquor products sold to the same customers and distributors; the products are similar given their use of color-coordinated, puckered human lips as the focal point of their bottle designs; consumers purchasing the vodka products are not likely to exercise a high degree of care in distinguishing between the two; and Jim Beam was aware of JL Beverage’s trademarks prior to rolling out its Pucker Vodka line. Accordingly, the court reversed and remanded. View "JL Beverage v. Jim Beam Brands" on Justia Law

Plaintiff failed to timely file his 2001 tax forms and filed a Form 1040 seven years after it was due, and three years after the IRS assessed a deficiency against him. Plaintiff later filed for bankruptcy and sought to discharge his 2001 tax liability. The bankruptcy court permitted the discharge, but the district court reversed. In In re Hatton, the court adopted the Tax Court’s widely-accepted definition of “return.” The court held that plaintiff's tax liabilities are nondischargeable under 11 U.S.C. 523(a)(1)(B)(i). The court also held that Hatton applies to the bankruptcy code as amended, and that plaintiff’s tax filing, made seven years late and three years after the IRS assessed a deficiency against him, was not an “honest and reasonable” attempt to comply with the tax code. Accordingly, the court affirmed the district court's judgment. View "Smith v. IRS" on Justia Law

Petitioner, a native and citizen of Mongolia, seeks review of the BIA's decision to deny his applications for asylum, withholding of removal, and deferral of removal under the Convention Against Torture (CAT). Petitioner asserts that his whistleblowing activities constituted a political opinion for which he was persecuted with either the consent or acquiescence of government actors. The court adopted the analytical framework of Matter of N–M– for the purpose of identifying whether an applicant has established the required factual nexus between any purported political whistleblowing and actual persecution. Under this framework, the court concluded that substantial evidence supports the Board’s conclusion that petitioner failed to present evidence that his purported persecutors were motivated by his anticorruption beliefs, or that the corruption was even connected to government actors. In this case, petitioner failed to establish that his whistleblowing amounted to political opinion as a protected ground, or that he was persecuted by or at the acquiescence of government officials. In regard to CAT relief, the court agreed with the Board that it was unlikely that petitioner would face torture at the hands of the government if returned to Mongolia. Accordingly, the court denied the petition for review. View "Lkhagvasuren v. Lynch" on Justia Law

In the midst of a federal investigation into activities of the former Governor of Oregon, John Kitzhaber, a grand jury subpoena seeks a broad range of information from the State of Oregon. For several years before Kitzhaber left office, copies of his personal emails were archived on Oregon’s computer servers. Because this cache would be turned over to the government under the subpoena, Kitzhaber argues the subpoena is unreasonably broad. The government disclaims any interest in Kitzhaber’s communications with his personal attorneys but argues it is otherwise entitled to everything it has requested. The court agreed with Kitzhaber that he had a reasonable expectation of privacy in much of his personal email (although the Fourth Amendment’s protection does not extend to any use of a personal email account to conduct public business), and that the subpoena in this case - which is not even minimally tailored to the government’s investigatory goals - is unreasonable and invalid. The court disagreed, however, that Kitzhaber may assert the attorney-client privilege for his communications, including communications regarding potential conflicts of interest and ethics violations, with the State of Oregon’s attorneys. Whatever privilege may protect those communications belongs to the State of Oregon, not to Kitzhaber as an individual officeholder in his personal capacity. Accordingly, the court reversed and remanded with instructions to quash the government’s present subpoena in its entirety. View "In re Grand Jury Subpoena" on Justia Law

Plaintiffs filed suit alleging that the FWS violated its statutory authority under Public Law 99-625 by terminating a translocation program for the southern sea otter. The district court dismissed the complaint, concluding that it constituted a facial challenge to a 1987 regulation and was thus untimely. The court concluded that the operative agency action challenged is the 2012 program termination, and therefore plaintiffs’ 2013 challenge is timely. The court held only that plaintiffs may challenge FWS’s termination of the program within six years of the decision to terminate the program, and plaintiffs were not required to bring suit within six years of the 1987 rulemaking espousing the authority to terminate the program. To hold otherwise would require plaintiffs to have filed suit nearly a decade before FWS took the action that caused their injury. Accordingly, the court reversed and remanded. The district court on remand should decide if there is merit to plaintiffs’ position that FWS was without Congressional authority to terminate the translocation program. View "Cal. Sea Urchin Comm'n v. Bean" on Justia Law

Facebook filed suit against Power over a promotional campaign where Power accessed Facebook users’ data and initiated form emails and other electronic messages promoting its website. The court concluded that Power did not violate the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM), 15 U.S.C. 7706(g)(1), because neither e-mails nor internal messages sent through Power’s promotional campaign were materially misleading. Therefore, the court reversed the district court's judgment as to this claim and remanded for entry of judgment for defendants. The court held that a defendant can run afoul of the Computer Fraud and Abuse Act of 1986 (CFAA), 18 U.S.C. 1030(a)(2)(C), when he or she has no permission to access a computer or when such permission has been revoked explicitly. The court also held that a violation of the terms of use of a website - without more - cannot be the basis for liability under the CFAA. In this case, after receiving the cease and desist letter from Facebook, Power intentionally accessed Facebook’s computers knowing that it was not authorized to do so, making Power liable under the CFAA. Therefore, the court affirmed in part the holding of the district court with respect to the CFAA. The court also affirmed in part the district court’s holding that Power violated California Penal Code section 502 where Power knowingly accessed and without permission took, copied, and made use of Facebook’s data; affirmed the district court’s holding that Power's CEO, Steven Vachani, is personally liable for Power’s actions; and affirmed the discovery sanctions imposed against Power for non-compliance during a Rule 30(b)(6) deposition. However, the court vacated the injunction and the award of damages, remanding the case to the district court to reconsider appropriate remedies. View "Facebook, Inc. v. Vachani" on Justia Law

Petitioner was deported to El Salvador following a misdemeanor firearms conviction. Petitioner subsequently reentered the United States without inspection and then filed a motion to reopen, his second, on the ground that his original lawyer did not properly advise him how to adjust his status after he married a United States citizen. After the Supreme Court announced a change in law that placed in question the legality of the original deportation, petitioner supplemented his motion to reopen. The court concluded that petitioner was not entitled to equitable tolling and denied review as to the adjustment of status issue; the court agreed with every circuit that has squarely addressed the issue, and held that it has authority to review refusals to reopen sua sponte to the limited degree that the refusal was based on legal error; and, because the court concluded that the Board’s decision in this case was based on a legally erroneous premise, the court granted the petition for review, vacated the Board’s denial, and remanded to the Board to exercise its broad discretionary authority as to sua sponte reopening against the correct legal backdrop. View "Bonilla v. Lynch" on Justia Law

ESG was a group of investors formed to purchase pre-Initial Public Offering (pre-IPO) Facebook shares. ESG’s managing agent negotiated the purchase with a man he believed to be "Ken Davis." "Ken Davis" was an alias for Troy Stratos, an alleged con artist. Venable represented "Dennis" in the Facebook deal, which is the subject of this securities fraud suit. After learning that ESG had been defrauded, managing agent Burns panicked and hid the news from ESG. ESG claims it did not learn of the alleged fraud and that their money had been stolen until November 2012. ESG filed suit against Stratos and Venable and attorney Meyer on March 6, 2013, alleging eight causes of action. The district court dismissed ESG's complaint, and subsequently the first amended complaint (FAC), with prejudice. The court held that ESG's federal securities fraud claim is sufficiently pled under FRCP 9(b) and the Private Securities Litigation Reform Act, 15 U.S.C. 78j(b), 17 C.F.R. 240.10b–5; ESG's state law fraud claim, which parallels the federal securities fraud claim, is sufficiently pled under FRCP 9(b); ESG’s nonfraud state law claims for conversion, unjust enrichment, unfair competition, aiding and abetting fraud, and conspiracy to commit fraud are sufficiently pled under FRCP 8(a)(2); and ESG's breach of fiduciary duty claim is barred by Cal. Civ. Proc. Code 340.6's one-year statute of limitations. Finally, the court concluded that neither the aiding and abetting fraud claim nor the conspiracy to commit fraud claim is barred by Cal. Civ. Code 1714.10’s Agent’s Immunity Rule. Accordingly, the court affirmed in part, reversed in part, and remanded. View "ESG Capital Partners v. Venable LLP" on Justia Law

Plaintiffs are descendants of Margarita Britten (Margarita), a Pala Band of Mission Indian who was born in 1856. After the Executive committee disenrolled more than 150 of Margarita's descendants, the Assistant Secretary - Indian Affairs (AS-IA) affirmed. Plaintiffs filed suit invoking 5 U.S.C. 706(2)(A), alleging that the AS-IA’s decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. The district court granted summary judgment to defendants. Determining that the court has jurisdiction to review the agency's decision, the court concluded that the AS-IA’s decision articulated a rational interpretation of the facts before him, and reasonably concluded that the 1997 Constitution was valid, notwithstanding the absence of a formal election, based on the language of the governing documents, and the past practice of the Band. The court rejected plaintiffs' argument that the BIA has an independent trust duty to protect them from unjust disenrollment. Because the Executive Committee now has ultimate authority over enrollment decisions under the 1997 Constitution and 2009 Ordinance, the AS-IA reasonably concluded that any questions of the surviving preclusive effect of the 1989 decision are properly directed to the Band, not the BIA. Finally, the AS-IA acted reasonably in declining to join two disenrolled minors to the agency appeal, because the minors had not challenged their disenrollment before the Regional Director. Accordingly, the court affirmed the district court's grant of summary judgment upholding the AS-IA; granted defendants' motion to supplement the record on appeal; and denied plaintiffs' motion for judicial notice. View "Aguayo v. Jewell" on Justia Law

This case arises out of a longstanding jurisdictional dispute between two unions representing workers at Terminal 6 at the Port of Portland. In this appeal, the Board challenges the district court’s ruling that it had subject matter jurisdiction to vacate an interlocutory decision of the Board issued under section 10(k) of the National Labor Relations Act, 29 U.S.C. 160(k). In Leedom v. Kyne, the Supreme Court carved out a narrow exception to the rule precluding jurisdiction over Board decisions beyond that provided in section 10(f). While the court was skeptical that the Board's exercise of jurisdiction was proper, the court need not and did not resolve the question. Whether or not the Board’s decision was ultra vires, the district court’s exercise of jurisdiction under Leedom was improper if PMA had some alternative means to challenge the Board’s section 10(k) decision. In this case, the court concluded that the district court erred in applying Leedom’s second prong because PMA had alternative means available to seek review of the Board’s section 10(k) decision. Because the court concluded that the district court’s exercise of jurisdiction was improper, the court left it to the Board to render a final decision on its own jurisdiction in the first instance. Furthermore, the court concluded that PMA's argument on the basis of NLRB v. Noel Canning fails where it has the opportunity to raise its Noel Canning challenge as an intervenor in the section 8(b)(4)(D) case, or if it later files a petition as an aggrieved person under section 10(f). Accordingly, the court reversed the judgment. View "Pacific Maritime Ass'n v. NLRB" on Justia Law