Media Alerts

ABA 9th Circuit Media Alerts

The American Bar Association’s (ABA’s) Media Alerts provides reporters, lawyers, educators, and the public with accurate, unbiased analysis of newsworthy and legally significant cases pending in or decided by the federal courts of appeals. The ABA selected the Western State Law Review to write the Media Alerts for the 9th Circuit. Several Law Review members volunteer to write the Media Alerts throughout each term.

Media Alerts – 9th Circuit

Bonivert v. City of Clarkston, County of Asotin, et al. – Ninth Circuit

Headline: Summary judgment in favor of the police reversed citing the U.S. Supreme Court’s warning in Scott v. Harris that attempting to decide excessive force cases at summary judgment requires courts to “slosh our way through the factbound morass of ‘reasonableness,'” with predictably messy results. Areas of Law: Constitutional Law; Civil Procedure Issues Presented: (1) Whether the officers were entitled to qualified immunity on the plaintiff’s Fourth Amendment warrantless entry claim where defendant expressly refused entry to
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Kris Kenny v. Wal-Mart Associates – Ninth Circuit

Headline: District Court order remanding class action to California state court vacated because the district court lacked authority under 28 U.S.C. §1447(c) to remand the case back to State court sua sponte based on a non-jurisdictional defect, and Wal-Mart did not waive its right to remove by filing a demurrer in state court when the First Amended Complaint did not reveal a basis for removal pursuant to the Class Action Fairness Act. Areas of Law: Civil Procedure;
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Headline: In determining whether AT&T Mobility was immune from FTC regulation concerning its data-throttling plan, the Ninth Circuit, sitting en banc, held that the FTC Act’s common-carrier exemption was “activity based,” meaning that a common carrier is exempt from FTC jurisdiction only with respect to its common carrier activities, rather than “status based,” such that an entity engaged in common-carrier activities is entirely exempt from FTC jurisdiction. Areas of Law: Federal Civil Procedure, Anti-Trust and Trade Regulation
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In re A Community Voice v. EPA – Ninth Circuit

Headline: The Ninth Circuit Panel granted the writ of mandamus sought by environmental groups to compel the U.S. Environmental Protection Agency (EPA) to update lead-based paint and dust-lead standards when the EPA had failed to act after granting a rulemaking petition to the Petitioners eight years earlier. Areas of Law: Administrative Law Issues Presented: (1) Whether the EPA had a duty to take final action on the environmental group’s 2009 rulemaking petition under the Toxic
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Liberty Mutual Fire Ins. V. EZ-FLO INT’L – Ninth Circuit

Headline: The panel concluded that “100 or more persons” for the purposes of meeting the Class Action Fairness Act’s numerosity requirement is synonymous with named plaintiffs. Areas of Law: Civil Procedure Issues Presented: The panel considered what qualified as a mass action under the Class Action Fairness Act (“CAFA”) more specifically it considered how the term “persons” should be construed as under the “100 or more persons” requirement. This case presents the narrow question of whether a
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United States v. Diaz – Ninth Circuit

Headline: Ninth Circuit panel holds medical expert’s testimony did not constitute a legal conclusion in violation of Federal Rules of Evidence 702 and 704 but rather provided the jury with professional opinions regarding the standard of care in the medical community. Areas of Law: Evidence; Expert Witness Testimony Issues Presented: Whether a medical expert’s opinions that a physician prescribed controlled substances outside the usual course of medical practice and without a legitimate purpose were legal
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Smith v. City of Santa Clara – Ninth Circuit

Headline: Ninth Circuit panel holds that a warrantless probation search that affects the rights of a third party co-occupant was reasonable under the totality of the circumstances test when the probationer had been convicted of serious crimes, was suspected of committing another violent felony, and was still at large. Areas of Law: Civil Rights; Fourth Amendment Issue Presented: Whether the warrantless search of a residence was reasonable under the totality of the circumstances when police
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Benjamin v. B&H Education, Inc. – Ninth Circuit

Headline: Ninth Circuit panel follows the “primary beneficiary test” in holding cosmetology school students are not employees under the Fair Labor Standards Act or under California and Nevada laws. Areas of Law: Labor Law, Fair Labor Standards Act Issues Presented: Whether cosmetology students are employees as defined by the Fair Labor Standards Act (“FLSA”) or under California and Nevada laws, when they worked without pay in the course of their training. Whether the district court abused its discretion
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Benjamin v. B&H Educ., Inc.

Headline: The Ninth Circuit affirmed the district court’s summary judgement which found in favor of a cosmetology school, B&H Education, Inc. (“B&H”), in an action brought by students under the Fair Labor Standards Act (“FLSA”), California and Nevada state law holding that the students are not defined as employees under the FLSA, California or Nevada laws. Areas of Law: Labor Law Issues Presented: Whether students of a cosmetology and hair design school are defined as employees under
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Brown v. Cinemark

Headline: The Ninth Circuit denied a motion to dismiss for lack of jurisdiction and concluded that appellate jurisdiction is proper under 28 U.S.C. § 1291, where plaintiffs’ voluntary settlement post denial of class certification constitutes a valid final judgment. Areas of Law: Class action; Wage and hour claims Issues Presented: Whether the Ninth Circuit has jurisdiction under 28 U.S.C. § 1291 to consider an appeal on the merits in light of the Supreme Court decision
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