Eid v. Alaska Airlines (9th Cir. - July 30, 2010)

Alaska Airlines generally gets very positive reviews. But not in this Ninth Circuit opinion.

I think that Chief Judge Kozinski writes a "fair and balanced" opinion here, and one that's more persuasive than the dissent, authored by Judge Otero (sitting by designation). Perhaps what the flight crew did here was reasonable. But this is a summary judgment motion, and if you believe what the plaintiffs (and the impartial witness) says, they've got a legitimate case.

In Re Marriage of Guo and Sun (Cal. Ct. App. - July 28, 2010)

It's sweet that the two of you went to Las Vegas on Valentine's Day, 2001, and got married. It's an impulse, I know, but one from the heart.

The next day, the husband filed a petition to dissolve his marriage. To his first wife.

Problem. You might have wanted to do those in reverse order.

So there's no marriage, and when, for financial reasons, the husband wants to be declared a "putative" spouse, no dice. He knew he was married when he got married the second time. That's just straight up deliberate bigamy, not a basis for declaring someone a putative spouse.

So, if you're already married, remember: Divorce, then marriage. Not the other way around.

People v. Perez (Cal. Supreme Ct. - July 29, 2010)

When you spontaneously decide to do a drive-by shooting, you might want to make sure that the group of eight people who you think look like opposing gang members really are who you think they are. And not actually police officers.

Because police officers don't like getting shot at. And they're going to work pretty hard to close this one.

People v. Wong (Cal. Ct. App. - July 28, 2010)

Let's see what I learned from this opinion:

(1) Kaiser spends $9 million in Southern California to "influence" the community. This basically entails buying meals for government officials and others and taking them to sporting events. Oh, yeah, and buying the L.A. Deputy Mayor a massage that has a "happy ending". Glad to hear it.

(2) The guy at Kaiser in charge of (1) also embezzles money by buying tickets for Kaiser and selling them on the side.

(3) Graft in the private sector employment isn't the only way to make a living. The same guy in (2) was also appointed to various commissions by the City of L.A. And took bribes -- er, I mean, "consulting payments" -- from private companies to influence the City.

(4) He also cheats on his taxes.

Ah, the cesspool of public and private employment.

Alliance for the Wild Rockies v. Cottrel (9th Cir. - July 28, 2010)

There's a forest fire in Montana. Trees are damaged, and some are going to die. So the Forest Service wants to allow a timber harvest of some of the dead and dying trees.

That makes sense to me. Sure, they're going to need to build some temporary roads to do the logging. But not that many, and they'll obliterate 'em after the logging. Seems fine.

The Forest Service wants this to happen quickly, without administrative appeals, because as the trees die, their volume and value diminishes. I can see that as well. We want to take these guys down before they fall and stuff, and during winter, we can't get to 'em. Arguably that's fine too, though I'm not entirely understanding the argument. Regardless, the Forest Service makes an emergency declaration and puts the logging up for bid, and tree clearing starts in late summer.

All of this makes sense to me. Mind you, part of the emergency declaration makes me a little wary, since it repeatedly refers to the fact that "the timber industry in Montana increasingly depends upon National Forest System timber supply as an essential element to keep their mills operational," which makes you suspicious about the true motivating factors here. But I'd still be largely inclined to allow the emergency declaration and let the timber harvesting go forward without allowing any appeals.

Except for two things. First, what's the alleged harm of delay resulting from administrative appeals? The Forest Service says that the delay won't harm the environment or anything, but instead will merely reduce the proceeds of the timber sales (since the trees will be smaller). I guess that could be a justification for circumventing the normal process. But how much are we talking here? $50 million? $500 million?

Nope. The Forest Service says that "[s]uch a delay [from allowing administrative appeals] would push the award of timber salvage contracts to late 2009 . . . . [and] by that time further deterioration of the affected trees will have resulted in a projected loss of receipts to the government of as much as $16,000."

Sixteen thousand American dollars?! You've got to be kidding me. Well, by all means, let's definitely disallow any environmental appeals then. We're talking a major revenue loss. The whole federal budget might need to be revised.

Second, the Forest Service's alleged need for speed here seems to be belied by the fact that the fire took place two years before they allowed the timber sales and declared an emergency. Why did they wait two years? No one knows. Not even the Forest Service's lawyer at oral argument. Somewhat inconsistent with a dire emergency, eh?

So I started out somewhat sympathetic to the Fire Service here. But didn't really end up that way. Nor did the Ninth Circuit. Which enjoined the "emergency" logging. Though half of it was already finished last year anyway.

Still. "As much as sixteen thousand dollars." Still brings a smile to my face.

Geo-Energy Partners 1983 Ltd. v. Salazar (9th Cir. - July 27, 2010)

It's not always easy reading every published decision. Sometimes you've got really, really long ones. Others begin: "This appeal presents the question of whether the procedures for periodic revision of units in the 1988 Amendments to the Geothermal Steam Act apply to pre-amendment contract provisions." Makes you really want to slog through the next twenty-one single-spaced pages, eh?

The take-away message I got from the opinion is that, apparently, you can waste twenty years or so essentially doing nothing productive on geothermal land leased from the government. Sadly. Though, eventually, we'll kick you out, and the Ninth Circuit will affirm.

And just to prove I read the whole thing: Page 10782, first full sentence, reads "In response, Geo-Energy sent a letter to the BLM complaining that in seven years the BLM had not nothing to compel FLPC to undertake diligent development, and should have removed FLPC as the operator." I think the "not" should be "done".

Though I can understand the lack of proofreading. It made me sleepy just reading this one once.

Still, I increased my knowledge of geothermal leases. From zero to slightly above zero. Which is something.

Constant self-improvement. That's my motto.

In Re Shippman (Cal. Ct. App. - June 8, 2010)

Robert Shippman is a regular guy. He "was raised on a chicken farm in central California by his mother and father with 10 older siblings. Petitioner‘s parents remained married, and provided well for their large family. His father worked as a rancher and then, upon his retirement, became a local pastor. Petitioner recalls a happy, stable childhood, with no issues of emotional or physical abuse, substance abuse, disciplinary problems or medical problems of any kind." Okay, so the chickens and the ten siblings are a little unusual, I admit. But otherwise totally normal.

Shippman graduates high high school and attends one year of college before meeting and marrying his first wife and leaving school to get a job. They have a daughter, but they get divorced. Why? Because, after seven years of marriage, Shippman's wife becomes pregnant by one of his best friends. Harsh.

So much for Wife I. Two years later, Shippman marries Wife II. They have a daughter (as well as a blended family) and are married for 22 years. Sweet.

But what happens? This time, Shippman -- who's now in his 50s -- has an affair. With twenty-something-old Juli. Who promptly becomes Wife III.

Shippman and Juli are married for two short years. What happens? Juli has affairs. Two of 'em. The second of which is with a local police officer and that prompts her to ask for a divorce.

Shippman is devastated, and desperately tries to get back together with Juli. But she's not interested. During one of their talks, when it becomes clear Juli's never coming back, Shippman takes out a rifle and shoots her three times -- twice in the chest and once in the head. He then does the same to himself. She dies. He lives.

Sex. It's a powerful thing. Not always in a good way.

Rahimzadeh v. Holder (9th Cir. - July 26, 2010)

It's not too hard to avoid deportation to Iran if you're a Muslim who converted to Christianity and proselytize. They don't really like that there. We won't do that to you.

The Netherlands, however, is another matter. That's a much tougher sell. Amesterdam ain't exactly Tehran.

Davis v. Superior Court (Cal. Ct. App. - July 22, 2010)

I never understand why they ask the guy "Do you bang?" (i.e., if the person is in a gang) when the questioner is going to shoot the victim regardless of what he says.

I read cases like this all the time. What's the right answer that avoids you being killed? If you say "No," as here, you get shot. Clearly, if you say "Yes," you're getting shot.

Is there a secret password or something? Q: "Do you bang?" A: "Plastics". Q: "Have a nice day."

People v. Khaled (App. Div. - July 22, 2010)

Next time you get your picture taken at a red light camera, use this opinion to get out of the fine.

I'm a little bit dubious about the reasoning here, and am not sure there's really a Confrontation Clause problem here, but I'm happy to take advantage of the thing. While it lasts, anyway.

Mattel v. MGA (9th Cir. - July 22, 2010)

Not a good day for Barbie.

Mattel, which ows Barbie, sued MGA, which owns the "Bratz" line of dolls. Mattel obtained a favorable jury verdict at trial, although it received only $10 million of the $1 billion it requested. But Mattel won an even greater victory thereafter when the district court granted Mattel wide-ranging equitable relief that essentially awarded Mattel control over the vast majority of the Bratz line.

MGA appealed. And this morning, MGA defeated Mattel on virtually every point. Chief Judge Kozinski's opinion holds that while a retrial is likely required on remand, the scope of relief that might perhaps be awarded to Mattel therein is exceptionally limited.

MGA couldn't have hoped for a much more favorable opinion. Barbie took it on the chin.

People v. Wilson (Cal. Ct. App. - July 13, 2010)

What counts as "immediate"? Around 10 months, apparently. Even in the context of a criminal statute. Which is why Anthony Wilson is going to spend the next 25 years to life in prison. That plus, of course, the fact that he told a corrections officer that he'd "blast" him after he got out of prison in 10 months.

Here's what the Court of Appeal, per Justice Poochigian, says about the immediacy requirement: "We fully appreciate the importance of the time element in determining whether a threat violates section 422. The appraisal of the immediacy of a threat under section 422 quite

appropriately includes assessment of the sense of urgency and foreboding caused to the

person being threatened. . . . The targeted officer had a sense of urgency and foreboding which was reasonable under the circumstances of this case. The threat of serious injury upon the occasion of release of the prospective assailant from prison in just 10 months does represent an immediate prospect of execution—not a distant event beyond the scope of section 422." By contrast, Justice Wiseman says, dissenting in part: "These facts do not prove, however, that the threat conveyed an immediate prospect of execution, as required by section 422. The prospect of carrying out a threat in 10 months is not consistent with the plain meaning of the word “immediate.” Immediate is defined as “not separated in time; acting or happening at once; without delay; instant.” (Webster’s New World Dict. (2d college ed. 1982) p. 701.) . . . . Unlike other decisions addressing threats made by incarcerated prisoners, there was no evidence that Wilson said or that Officer Thornberry believed Wilson could carry out an immediate attack while in prison; could direct others outside the prison to carry out an immediate attack; or would be released within a few days and carry out an attack. The only “prospect of execution” at issue was the prospect of Wilson being released from prison in 10 months as scheduled, and at that time obtaining means to carry out an assault, finding Thornberry, and assaulting him."

An enlightening temporal debate.

County of San Diego v. Gorham (Cal. Ct. App. - July 21, 2010)

There's always been a part of me that's profoundly concerned with a lot of default judgments. We routinely base them -- as we must -- on declarations of service. The affidavits of service almost always look fine. But what if the process server is simply lying? Wouldn't it be totally easy just to say you've served someone, and instead go out and have a beer? The consequences for the defendant are severe, and how could we ever catch the process server in the lie?

Here's one way. When the person allegedly served was incarcerated when they were allegedly served at a place they hadn't lived over a year. When that's the case, well, it's pretty easy to catch.

But that's pretty unusual. In most cases, it'll be the "neutral" process server's word against the self-interested defendant's. Or, more often, the process server's completed declaration versus nobody, since the defendant won't show up. In such settings, who wouldn't believe the process server?

I can't devise a better system. We have to rely on people's word at some level. But here's a setting in which I'm not sure that reputational and other incentives really work, if only because of the low likelihood of getting caught. So it's a potential problem without any real solution. Except in cases like this one, which is the exceptionally rare case in which (1) we can be pretty sure the process server committed perjury, and (2) we can also be pretty sure that the allegedly served defendant had a totally good defense on the merits.

Small solace.

People v. Glazier (Cal. Ct. App. - July 19, 2010)

Here's a good hypothetical. Something appropriate for the California bar exam, or maybe a class on California criminal law:

"Defendant hates his next-door neighbor. While the neighbor is remodeling his house, and living elsewhere, defendant stands on his own property, uses a paint sprayer to spray gasoline into the crawl space of his neighbor's home, and lights it on fire with a 20-foot torch, burning the house to the ground. For what major crimes can defendant properly be convicted?"

I'm sure you got arson, of course. And if you're fancy, "arson of an inhabited structure or property." Possession of flammable material too, though the sentence on that isn't exactly major. Some other relatively minor charges as well.

But you're missing something. An offense that's charged in California in a very high number of cases, and that carries a heavy penalty. No, not attempted murder; remember, the house was unoccupied, and defendant knew that.

Burglary.

Did the defendant break into the house? No. Did defendant steal or take anything? No. Did defendant ever even leave his own lawn? Nope.

Still, in California, it's burglary. Because an instrument he held (the torch) entered the property of another in order to commit a felony.

Get that one right?

People v. Knightbent (Cal. Ct. App. - July 19, 2010)

I occasionally make fun of various appeals that concern trivial sums, particularly when the transaction costs of litigating the matter completely swamp what's at stake.

I'm glad to see the Court of Appeal make a similar mention.

Justice Raye begins the opinion by saying: "In this case, the services of an appointed counsel and a deputy attorney general, together with three justices and staff of this court, are applied to the resolution of a single issue: whether the court's order imposing a $34 fine on defendant was proper under Penal Code section 1202.5[]. Defendant argues the court erred and the fine must be reduced to $10."

I like it. Twenty four American dollars at stake. Almost enough to buy Manhattan. Definitely worth the investment of social resources.

Though I'll also mention that the Court of Appeal itself spends a lot more than $24 by deciding to publish the opinion. That's some trees, even for an 11-pager. Plus suggests that perhaps the appeal apparently concerns something that's at issue in a large number of cases and hence worthy of publication and social attention.

VISA Int'l v. JSL Corp. (9th Cir. - June 28, 2010)

The web site "evisa.com" illegally dilutes VISA's trademark, the Ninth Circuit holds in an opinion written by Chief Judge Kozinski. An opinion that, characteristically, is both well-written and makes sure to include a plethora of cultural and brand references.

Which is great. Now I'm just hoping they take down the State Department's evisa web site too.

La Serena Properties v. Weisbach (Cal. Ct. App. - July 15, 2010)

I agree with the Court of Appeal here. You can't sue an arbitrator for failing to disclose conflicts. Even if the failure to disclose as allegedly "corrupt" or part of a "conspiracy."

Your proper remedy is limited to vacating the arbitration award. Which is precisely what in fact transpired here.

That said -- and that's all that need be said to resolve the case -- I think that if you're a proposed arbitrator and your girlfriend is the sister of defendant's lawyers, you need to say more than just: “[Defendant's lawyer] is a personal friend. While I do not believe that our relationship would prejudice my hearing of this matter, this relationship does present a potential conflict."

How about: "I am in an ongoing romantic relationship with the sister of defendant's lawyer, and also know counsel personally. Let me know if you would like to select a different arbitrator." Or, even better: "I unfortunately cannot accept the appointment, as my relationships might create at least the appearance of impropriety."

People v. Alexander (Cal. Supreme Ct. - July 15, 2010)

There's virtually no physical evidence at all. The eyewitness identifications are shaky. The crime was unsolved for over a decade. It was a random shooting for inexplicable reasons.

But the person shot and killed was a Secret Service agent. On duty. And a woman. When you're convicted, you're going to be sentenced to death. And the California Supreme Court will affirm in a unanimous (and 130-page) opinion.

The discussion on pages 98 to 106 seems the most troubling issue to me. A juror says during jury deliberations that s/he's not willing to vote guilty because there's no positive identification of the defendant or physical evidence at the scene. But the other 11 jurors want a guilty verdict.

So the foreman writes the court a note, and tells the judge that the one juror said: "If we could positively identify him, I would fry his ass just like the rest of you. But without a positive i.d., I . . . cannot vote for guilty." The court then pulls the jury back in expressly instructs them about circumstantial evidence being okay and the like -- instructions clearly targeted at the holdout juror.

Those are proper instructions, of course. But the process used seems a pretty powerful way to deliver a specific message. So a specific juror who's vote you know and want to change.

Oh, yeah. When, at the penalty phase, you do the exact same thing again -- albeit in a different context -- it seems only worse. There, the foreman writes another note: "We have a split eleven to one + the holdout will not listen to any reason. Please let us know how to continue. The holdout is based on the children." So the judge calls the jury in and tells them that their decision can't be based on sympathy for a third party; e.g., the defendant's children. Thirty-five minutes of deliberations later, the jury unanimously comes back with a verdict of death.

At some point the judge risks becoming a participant in an interactive process with the jurors during deliberations. That's not right. Or at least it's not our system. Even though what the judge told the jurors was totally correct as a matter of law, the process employed here seems troubling to me.

Something that I'm sure will hear more about -- in another decade or so -- when the federal habeas proceedings reach the Ninth Circuit.

(At which point Alexander will be around 40 years older than when he committed the offense. If he lives that long.)

P.S. - For a sharp contrast to Alexander, take a look at Solomon, decided the same morning by the same court and with the same unanimous result. Solomon's unquestionably guilty, and the trial's not infected with any error. The result in Solomon is easy. The two cases are night and day.

Rhodes v. Henry (9th Cir. - July 15, 2010)

Paul Rhodes is charged with and convicted for the capital crime of first degree murder of -- as well as the kidnapping, robbery, and rape of -- Susan Michelbacher. He's sentenced to death.

Seems to me like also convicting the guy for "the infamous crime against nature" is sort of piling on, no?

Plus, maybe Idaho could make it's criminal code a little more "hip" -- as well as constitutional -- by changing the statute. Which currently reads: "Every person who is guilty of the infamous crime against nature, committed with mankind or with any animal, is punishable by imprisonment in the sate prison [for] not less than five years."

I think we can handle the word "sodomy" in 2010. As well as allow it consensually. And maybe not punish all of it with a mandatory minimum of five years (to life).

I'm just sayin'.

POSTSCRIPT - Speaking of the infamous crime against nature, someone who did NOT testify before Congress recently pointed me in the direction of this unintentionally funny case (Lason), uncertain whether the case "is as well known to your generation." Let the diffusion of knowledge commence.

U.S. v. Hinkson (9th Cir. - July 14, 2010)

Rare.

Judges usually don't change their mind. Especially in a high-profile en banc case.

But here's what Chief Judge Kozinski says this morning, in a case that I've talked about on several occasions (here, here and here), and that -- as I've mentioned -- has been unusual from the outset:

"I continue to agree with, and join, that portion of the opinion explaining how we review for abuse of discretion, but now disagree with the application of this standard to the case before us. I had underestimated the trust some jurors would have placed in Swisher if they thought he was a decorated combat veteran, and the likely backlash if they had learned he was a fraud. My change of heart came about after I read the Supreme Court’s summary reversal in Porter v. McCollum,

130 S. Ct. 447 (2009), and the amicus brief of William Mac Swain filed in our case. Without Swisher, the government had no case. I’m now persuaded that Judge Fletcher has the better of the argument for the reasons articulated in his dissent, which I join in full."

Equally unusual as a change of heart is to single out an amicus brief as a motivating factor. Mac Swain, by the way, is the President of the Korean War Veteran's Association, and his brief was prepared by John Keker.

Impressive.

People v. Mesa (Cal. Ct. App. - July 13, 2010)

The opening paragraph of this opinion reads:

"In separate incidents, Tommy Angel Mesa, a gang member, shot and severely wounded two complete strangers. He used the same gun in both incidents, and later was found in possession of the gun and several rounds of ammunition. Mesa was convicted of two counts of assault with a firearm, three counts of being a felon in possession of a firearm, one count of being a felon in possession of ammunition, and two counts of actively participating in a criminal street gang."

Which reminded me of a great line from NYPD Blue, in which Andy Sipowicz tells a suspect, from whom they've just retrieved a murder weapon during a search of his apartment:

"Always a right move tossing the piece, Rick. Though, at the time, it may seem wasteful."

Helpful counsel.

In Re Girardi (9th Cir. - July 13, 2010)

Here's another spanking.

Thomas Girardi and Walter Lack are high-profile California lawyers. Amongst their other legal pursuits, they (and their firms) attempted to enforce a $489 million default judgment allegedly entered by a court in Nicaragua against Dole Food and Shell Chemical based upon the effects of a particular pesticide upon banana plantation workers. The problem, however, was that the default judgment was expressly entered against non-existent entities called "Dole Food Corporation" (not Dole Food Company) and "Shell Oil Company" (not Shell Chemical Company), and the reason the default was entered in the first place was because the Nicaraguan court didn't allow the real companies to prevent the defaults because it wasn't against them.

Which obviously makes it a challenge to thereafter attempt to enforce the foreign judgments in the United States against the real defendants. But Girardi and Lack (and their firms) attempt to get around this problem by using a Spanish "translation" of the judgment that helpfully uses the words "Dole Food Company" and "Shell Oil Company" when they file suit in California. But the district court dismisses the suit, saying these aren't the right entities.

Undeterred, Girardi and Lack appeal, and continue to say that the default judgment's against the right entities, even though it's not. After the defendants file their opposition, the young associate (less than two years out of law school) [!] who's writing the briefs essentially says: "Hey, are you sure about this? Looks to me like we're totally wrong here, and may be sanctioned." But Lack and others direct the thing forward, so the associate submits a reply that reiterates the same story the firms have been repeatedly telling the courts about the judgment being against the right parties.

Thereafter, while the case is pending, in a different suit, the defendants got the original copy of the judgment, which plaintiffs had strenuously resisted turning over. And, once they looked at it, filed a bevy of motions in the Ninth Circuit to dismiss the appeal, to impose sanctions, etc. based on the fact that the judgment was clearly against non-existent entities and contradicted all of the things the plaintiffs had been telling the courts for years.

Finally, a week before oral argument, Howard B. Miller, who's with the Girardi firm and who's to argue the appeal (and who's also the President of the California Bar, I might add), looks at the whole thing and says: "Holy crap." Plaintiffs thus dismiss the appeal.

Which gets 'em out of oral argument, but not the subsequent OSC, investigation, formal reports, etc. etc. After a trial of the OSC, Judge Tashima proposes to sanction the Girardi and Lack firms $390,000. Which they're cool with. But there's also the question of discipline, which is what this morning's opinion is all about.

Ultimately, the Ninth Circuit decides (1) to formally reprimand Thomas Girardi, (2) to suspend Walter Lack and Paul Traina from practice in the Ninth Circuit for six months, and (3) to privately reprimand (and not name) the young associate, primarily because he wrote the memo warning about sanctions (but then was told to go forward). [I say "he" because while I -- like the Ninth Circuit -- won't use his name in print, it's easy to discover.]

Three thoughts. First, having looked at the post-appeal briefs, I might have taken a different approach than plaintiffs did. The first paragraph of their opening brief ends with: "Neither ethical zeal nor moral outrage animates the prosecution: these proceedings are about leverage and dominance over those who would dare to sue Dole and the chemical giants that supplied DBCP [the underlying pesticide]." I have no doubt plaintiffs believe that. But sometimes you have to restrain your own outrage. This is one of those times. Stuff like that doesn't help.

Second, I thought it was interesting that plaintiffs hired Professors Hazard (at Hastings) and Vairo (at Loyola) to opine that they shouldn't be sanctioned, that they both did so, and that Judge Tashima rejected this sage counsel. I'll say no more.

Finally, it's telling that the lawyers are eventually willing to suck up the $390,000 sanction but are fighting the discipline. For most of us, the money would matter more than a suspension or public rebuke, especially since you can just have someone else sign the briefs. That says a lot about the value of publicity in high-profile practices.

The whole thing is fascinating. And there's a lot more here than meets the eye. But I'll leave the matter for now. The affair's nonetheless definitely something worth considering.

Clayworth v. Pfizer (Cal. Supreme Ct. - July 12, 2010)

You don't see many state antitrust decisions, much less on big-ticket items like whether there's a pass-through defense (which we settled in the federal context with Hanover Shoe) and how you allocate damages in indirect purchaser litigation (which we don't allow in federal court pursuant to Illinois Brick). Antitrust was the intellectual property of the 1970s and 80s -- everyone wanted to do it -- so if we were in that era, this case would get major play. But that era is now bygone, albeit allegedly on a comeback. I nonetheless mention the case because for the antitrust players that remain, it's a biggie.

The California Supreme Court unanimously concludes there's no pass-through defense. Which seems entirely right. That's what we do in the federal system, and it's certainly what the pro-antitrust litigation California legislature intended when it passed the relevant amendments. Yes, that rule makes damage assessments somewhat difficult, since we may be punishing a defendant twice: first by allowing direct purchasers to sue, with no pass-on defense, and then also allowing indirect purchasers to sue. But the problem isn't insurmountable, and in any event, that's what the Legislature probably wanted.

So California's a good place to bring state antitrust claims. No shocker there.

Reeves v. MV Transportation (Cal. Ct. App. - July 9, 2010)

Which one of these is the better applicant?

The Job: "National public transportation company, with its corporate offices in Fairfield, California seeks an experienced attorney in traditional labor law and employment litigation to report to the General Counsel/Chief Legal Officer. [¶] We offer an excellent opportunity to join a growing Legal Department and to work with Operations[] and Human Resources as a productive member of the Corporate Office. [¶] . . . [¶] Requirements: Qualified candidates should demonstrate substantial experience representing management in labor/management issues; practice before the NLRB; grievance and arbitration under CBAs; collective bargaining and/or counseling of clients with CBA/labor dispute issues, and proven employment litigation experience, including responding to administrative agency civil rights actions (EEOC, etc.)."

Candidate A: After college, "worked worked four years as a company Human Resources Manager, where among other things she revised and implemented personnel policies and assisted with the negotiation of the company's first union contract. She then went to law school at UC Davis, where she graduated in the top five percent of her class and as a member of the Order of the Coif. She became a member of the New York and California Bar Associations, and clerked three years for a judge of the United States District Court for the Eastern District of California. She joined the law firm of Foley & Lardner in 1997, and was working there as a Senior Counsel in labor and employment litigation when she applied for the position with defendant. In her practice she had been called upon to: “[c]ounsel employers regarding all aspects of labor and employment law”; “[m]anage all phases of labor and employment/commercial litigation in state and federal courts”; “[r]epresent employers before state and federal administrative agencies”; “[r]epresent management in labor grievance and arbitration proceedings”; and “[d]evelop and conduct labor and employment law training for clients.”

Candidate B: Worked "as a Field Attorney for the National Labor Relations Board from 1973 to 1975. He worked for Kaiser Industries and Kaiser Steel Corporation from 1975 to 1985, where among other things he had “”[s]erved as management representative in final stage of grievance procedure,” and “[s]uccessfully represented Company in $18 million arbitration involving issue of Supplemental Unemployment Benefit Plan continuance post-contract expiration.” As an attorney at Sempra Energy, a “[n]ational energy provider with 12,000 employees,” from 1985 to 2002 he had among other things “[g]uided . . . Sempra‟s largest subsidiary, through difficult and contentious collective bargaining negotiations,” “[s]uccessfully defended 'pay-per-route' method of compensation for meter readers against challenges by federal class action and state agency, thereby generating millions in annual savings”; “[o]btained state appellate court decision preempting most of Company's operations from reach of Cal-OSHA”; and “[p]rovided preventative law advice to client on daily and proactive basis, including downsizings” . . . [and then] resumed work as an NLRB Field Attorney in 2003 [to date]."

On just that paper record, which one's better?

Would your opinion change if Candidate B sent his application for the position from his work e-mail address (at the NLRB)? What if Candidate B sent a follow-up e-mail that said: "Frankly, I doubt that any other candidate could be as qualified and experienced for this position as I am. I doubt that any other candidate meets your stated requirements for the position as closely as I do."

Would your opinion change if Candidate A was "recommended by Pat Riley, an attorney [you] knew and respected who was of counsel at the Foley firm. Riley had not worked with Blanchard-Saiger, but he knew that she was applying for defendant‟s position, and he told Biard that she was leaving the firm voluntarily and had not been asked to leave?"

Candidate A, who was 40, was interviewed and hired. Candidate B, who was 56, was not, and sued, claiming age discrimination. The trial court granted summary judgment to defendant, and the Court of Appeal affirms, calling the case "not close."

I agree. There's additional stuff in the opinion beyond mere qualifications, but it supports rather than detracts from summary judgment. An employer could easily conclude that A was better then B, even if (and this is indeed an "if") others might disagree. That B is 56 and A is 40 shouldn't give rise to a lawsuit. Or, if it does, that action should be dismissed on summary judgment. And affirmed.

Toyota Motor Sales v. Tabari (9th Cir. - July 8, 2010)

There's such a thing as being too bright by half.

Toyota wins an injunction in a trademark case against an online auto broker who's representing himself. The case goes up to the Ninth Circuit. The panel consists of Judges Kozinski, Fernandez and Randy Smith. Hardly the intellectual slouches of the federal bench.

So the judges (and their clerks) are going to do some independent work to make sure they get this one right. If only because it's an IP case, and all the clerks want jobs in IP, right? Accordingly, the advantage that Toyota has of opposing a pro se litigant isn't nearly as high on appeal as it was in the district court.

Nor is this a meaningless difference. Which Toyota learns when it discovers, as it did this morning, that the Ninth Circuit reversed the judgment in favor of Toyota and gave the pro se litigant much of what he wanted.

But that's not all. The Ninth Circuit's opinion is written by Chief Judge Kozinski. Which means on some occasions that you get lots of pop culture references, and on other occasions -- as here -- means that you get an opinion that's sometimes fairly harsh. Particularly when Alex thinks you're trying to pull a fast one. So listen to what he says about Toyota's lawyers (from Greines Martin):

"Toyota artfully maneuvered to obscure this factual overlap before trial and again on appeal. Toyota argued in favor of bifurcation on the grounds that even 'a cursory review' would show 'that there are no common issues of fact between any of these original claims and the counterclaims.' This was technically correct: The overlap was between the Tabaris’ defenses and counterclaims, not Toyota’s 'original claims' and the Tabaris’ counterclaims. Toyota evidently hoped that the district court would not notice the careful parsing of its language, and that the Tabaris (who are defending this case pro se) would not call it to the court’s attention.

Toyota is playing the same game on appeal: It states that bifurcation was proper because '[t]here was no factual overlap between Toyota’s trademark claims and Fast Imports’ interference claims.' But Toyota is only telling half the story by talking about only half of the relevant claims; Toyota admitted as much in its motion for summary judgment. Such selective memory exceeds the bounds of zealous advocacy."

Not something you want said about you in a published opinion. Plus, Chief Judge Kozinski doesn't stop with just the slam. It sufficiently matters to him that, in something fairly creative, he actually wants to level the playing field on remand. He concludes the opinion by saying:

"Many of the district court’s errors seem to be the result of unevenly-matched lawyering, as Toyota appears to have taken advantage of the fact that the Tabaris appeared pro se. See,

e.g., [the quote I retyped above]. To avoid similar problems on remand, the district court might consider contacting members of the bar to determine if any would be willing to represent the Tabaris at a reduced rate or on a volunteer basis."

Getting slammed is bad enough. Getting your client potentially harmed as a result adds injury to insult.

Judge Fernandez writes a concurring opinion that distances himself from some of the classic Kozinski contents. For example, Judge Fernandez doesn't like the off-the-record assumptions that are sprinkled throughout Judge Kozinski's opinion; e.g., that “[c]onsumers who use the internet for shopping are generally quite sophisticated" or that such people “would arrive at the Tabaris’ site agnostic as to what they would find." He also doesn't like the stuff about Toyota's lawyers, and concludes his brief concurrence by saying:

"Second, I am unable to join the gratuitous slap at counsel for Toyota in the majority opinion, which I see as entirely unnecessary to our decision or even to the upholding of the marmoreal surface of the law.

Finally, I do not join the final textual paragraph, which nudges the district court to find pro bono counsel for the Tabaris, who have neither chosen to retain their own counsel nor demonstrated that they cannot do so. To the extent that the majority sees their activities as especially socially worthy and above reproach, I do not agree."

So Judge Kozinski is harsher than Judge Fernandez, and more willing to use social assumptions, while Judge Fernandez is more willing to use big words (e.g., "marmoreal"). No surprises there.

In short, smart is good. But too smart is not.

U.S. v. Graf (9th Cir. - July 7, 2010)

Here's why you shouldn't talk to the attorney for your employer. At least if you're not totally, one hundred percent squeaky-clean.

Parenthetically, it's also why you shouldn't set up a fraudulent health insurance company. 'Cause 25 years in prison isn't anything to sneeze at.

Though the former's probably more likely to present itself than the latter.

Betz v. Trainer Wortham & Co. (9th Cir. - July 7, 2010)

Judge Gould writes a majority opinion that concludes by saying (in the process of remanding to the district court): "[W]e do not see how it can ever be incorrect, once the Supreme Court has vacated a circuit court decision and remanded for further assessment in light of one of its decisions, for the court of appeals simply to vacate the district court’s decision and to remand for further proceedings in the light of the pertinent Supreme Court decision."

To which I might respond: "Depends on what you mean by 'incorrect'."

If he means "procedurally improper" or "precluded as a matter of law," I largely agree. Remand is permissible, and no one (including the party opposing remand here) argues otherwise.

But if Judge Gould means something more meaningful -- as in "we do not see how it can ever be wrong" to remand -- then I'll respectfully disagree. Imagine a case in which the district court entered a judgment in favor of X on two independent grounds. The loser appeals, and the Court of Appeals affirms on Ground 1, and does not reach Ground 2. The loser obtains certiorari in the Supreme Court, which reverses Ground 1, and remands to the Court of Appeal for proceedings consistent with its opinion. Neither the Supreme Court nor the Court of Appeals has ever made any decision relevant to Ground 2, which is wholly separate from Ground 1.

In that situation, it'd be "incorrect," in my view, for the Court of Appeal to remand. We already know the district court's decision on that issue. Remand would be both unnecessary and a waste of time. It'd normally be "wrong".

This is a not-unusual situation. You can also add additional (not-unusual) facts, if you'd like, that would make it even more "wrong" to remand. The winning party is elderly, and may not survive the delay in the district court. Or is losing their home and needs a decision quickly. Or the loser wants remand because the district court judge who initially decided the case has left the bench, and the loser thinks her replacement may be more sympathetic.

In short, there are lots of situations in which the Court of Appeals should not remand a case to the district court after a decision and remand by the Supreme Court. So I'd replace the broad and potentially misunderstood word "incorrect" in the opinion with "procedurally barred." A phrase that's simultaneously more accurate but that indicates that Judge Gould's final argument in favor of remand doesn't really say much of anything that anyone disagrees with (though at least doesn't say anything wrong).

Lee v. Lampert (9th Cir. - July 6, 2010)

The state court violated your constitutional rights, you say? It directly caused your conviction, eh? Indeed, you're an innocent person languishing in prison as a direct consequence of these violations of your constitutional rights?

We don't care. After a year, nothing you say matters. We're not giving you habeas relief, even if you convince us that you're actually innocent. Enjoy prison.

That's what the Ninth Circuit holds today. Oh, and drops in a mere one-sentence footnote the holding that a contrary decision would be unconstitutional.

The panel isn't the most pro-defendant in the universe, and consists of Judges O'Scannlain, Randy Smith, and Wolfe (sitting by designation from Iowa). But this is also the rule in many other circuits as well. Though not the rule in others.

The Supreme Court should have taken this up already. For reasons identical to the ones that Judge O'Scannlain explores in the opinion in the intra-circuit context. Yet has failed to do so.

We'll see what happens to this one. Though I think that resolving the circuit split would be more likely had the Ninth Circuit gone the other way.

U.S. v. Johnson (9th Cir. - July 6, 2010)

Welcome back from your July Fourth holiday, Mssrs. Johnson and Heineman. You'll be happy to learn that the Ninth Circuit now has a decision in your appeal.

Though I don't think you'll especially appreciate what Judge Silverman has to say about you. Because he's not exactly pulling any punches:

"Defendants Kurt F. Johnson and Dale Scott Heineman were indicted for conspiracy and multiple counts of mail fraud related to their illegitimate debt-elimination business. They were adamant in their desire to represent themselves and assert an absurd legal theory wrapped up in Uniform Commercial Code gibberish. Both defendants were examined by a psychiatrist and found to have no diagnosable mental disorder. . . . The judge practically begged them to accept counsel but they refused. The district court found that the defendants were competent to represent themselves and that such was their constitutional right. Defendants now contend that Indiana v. Edwards, 554 U.S. 164 (2008), decided by the Supreme Court after their trial concluded, required the

district court to terminate their self-representation because of what they describe as their “nonsensical” legal “antics” after the trial began. They say they may have been competent to

stand trial but not to represent themselves.

The record clearly shows that the defendants are fools, but that is not the same as being incompetent. Under both Faretta and Edwards, they had the right to represent themselves and

go down in flames if they wished, a right the district court was required to respect. There was no legal or medical basis to foist a lawyer on them against their will."

Not exactly mincing words.

Gilb v. Chiang (Cal. Ct. App. - July 2, 2010)

You can't get more timely than this.

Yesterday, the Governator said that he was going to defer salary payments for state workers and pay them only minimum wage for now. The Controller said he wasn't going to follow this order because (inter alia) it's illegal.

Today, the Court of Appeal issued a published opinion on this exact same issue -- albeit in the context of the identical dispute two years ago -- holding that the Controller has to follow such an order and can't merely disregard it.

Who says opinions are always boring and irrelevant?

In Re Ross (Cal. Ct. App. - July 1, 2010)

"Oh, wait. You in fact cited that case we said you didn't discuss?"

Never mind, then.

Mundy v. Neal (Cal. Ct. App. - June 30, 2010)

You've got to try to settle the dispute before you file a lawsuit if you want attorney's fees. Even if a fee award is mandatory. At least if your lawsuit requests relief that the defendant can voluntarily provide after you file your lawsuit (e.g., constructing that handicapped-accessible space).

So holds the Court of Appeal.