Lesson for the day. When you argue an appeal before the Ninth Circuit and lose, be very, very cautious before you raise that exact same issue again in the same case. Very cautious. Very. That's true even if you somehow convince yourself that there has been some intervening precedent rendered after your prior loss that might arguably change things. Remember: the appeal will go to the same panel that slapped you down before. And they may not think that your "intervening precedent" is nearly as strong as you do. At which point they'll slap you down again. Only harder this time.
Which is exactly what happens to Circuit City and its counsel, Rex Berry, in this case. Back in 1999, plaintiff (Ingle) field a lawsuit against Circuit City, at which point Circuit City moved to compel arbitration based upon an arbitration agreement signed by Ingle as a condition of her employment. The district court down here (at the time, Judge Schwartz) denied the motion to compel arbitration, and Circuit City filed an appeal. And back in 2003, the Ninth Circuit unanimously affirmed, holding that the arbitration agreement was unconscionable under California law (and hence that the FAA didn't require its application). (You'll see why I italicize this word in a second.)
Circuit City files a petition for certiorari with the Supreme Court, but it's denied. Shocking, I know. So the case then goes back down to the Southern District of California. And, less than a month later, Circuit City again moves to compel arbitration. The exact same motion that the entire federal system just got finished adjudicating. But Circuit City alleges that the Ninth Circuit's en banc 2003 decision in EEOC v. Luce Forward means that the result should be different this time. But Luce Forward merely held that federal law (i.e., the Civil Rights Act of 1991) didn't preclude employees from agreeing to arbitration. It didn't say anything about the straightforward application of California law. Which was the basis for the Ninth Circuit's prior holding in this case.
Which doesn't escape Judge Whaley, who's replaced Judge Schwartz and who (like his predecessor) again denies the motion to compel arbitration. (Even though Judge Whaley is from the Eastern District of Washington, I have a vague recollection that he comes down here repeatedly on assignment for some reason. And why shouldn't he? Just ponder the weather differential.) So now Circuit City has lost three straight times -- four, if you count the denial of certiorari. So what does it do? Appeals yet again. Going for number four (or five)!
And gets it. Judge Pregerson -- who wrote the initial opinion back in 2003 -- spanks Circuit City down again, and briefly explains why a Ninth Circuit decision on federal law (Luce Forward) doesn't displace a holding that is expressly based upon state law (Ingle I). And then finds the appeal frivolous, and concludes by awarding double costs and attorney's fees to Ingle.
That's got to make Inge and her counsel, Michael Crosby, pretty happy. And simultaneously make Circuit City and Rex Berry pretty darn sad. (Parenthetically, Mr. Berry has certainly moved around a lot during this case. He was with Davis Grimm in Seattle during Ingle I in 2003, then is with Livingston & Mattesich in Sacramento during the briefing of Ingle II in 2004, and now practices in a three-attorney firm called Berry & Block. Here's Mr. Berry's own description of his practice. No mention of this case and result, however. Shockingly.)
Anyway, that's the lesson for today. Don't go overboard convincing yourself of the wonders of your own case. 'Cause when you do, you may well get repeatedly -- and increasingly -- bench-slapped. And, by the way, one last point. When you expressly represent yourself, as Mr. Berry does, on your web site as an "aggressive litigator" and an "accomplished appellate advocate" -- and one who gets results by "employ[ing] thorough and aggressive litigation tactics" -- and then get spanked down badly in a case like this, maybe you should rethink your approach. 'Cause I think that if the panel had read that (as I just did), they might not just have awarded double costs and fees, but might also have expressly found the appeal to be in bad faith as well. Which is just another way of saying that a little caution and tiny bit of humility about the strength of your arguments and prowess rarely hurts, and often helps.
