Defendant Did Not Forfeit Affirmative Defenses by Failing to Answer Second Amended Complaint, Holds Ninth Circuit

In KST Data, Inc. V. Enterprise Servs. LLC, No. 19-55422 (9th Cir. Nov. 17, 2020), the Ninth Circuit holds that the district court erred in granting summary judgment sua sponte in a contact case when it denied the defendant the opportunity to argue its affirmative defenses. “Defendant Enterprise Services, LLC (‘ES’) entered into a contractContinue reading “Defendant Did Not Forfeit Affirmative Defenses by Failing to Answer Second Amended Complaint, Holds Ninth Circuit”

Ninth Circuit Vacates Class-Settlement Fee Award Under Rule 23(h), Rejecting Lodestar-With-Multiplier Calculation in Case Where 96% of Value Is Coupons

In Chambers v. Whirlpool Corp., No. 16-56666 (9th Cir. Nov. 10, 2020), a Ninth Circuit panel affirms a class settlement, but remands the case for a recalculation of the attorney’s fees under Fed. R. Civ. P. 23(h). The panel finds that awarding the lawyers’ billable hours with a 1.69 multiplier – totaling $14.8 million –Continue reading “Ninth Circuit Vacates Class-Settlement Fee Award Under Rule 23(h), Rejecting Lodestar-With-Multiplier Calculation in Case Where 96% of Value Is Coupons”

Faulty Daubert Rulings No Longer Automatically Require A New Trial, Ninth Circuit Holds En Banc

In United States v. Bacon, No. 18-50120 (9th Cir. Nov. 5, 2020) (en banc), the Ninth Circuit overrules several prior decisions holding that the only remedy for an erroneous ruling on expert testimony under Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Fed. R. Evid. 702 is a new trial. Instead, theContinue reading “Faulty Daubert Rulings No Longer Automatically Require A New Trial, Ninth Circuit Holds En Banc”

An Intervening Change in Law Nearly Always Warrants Modification of Injunction, Holds Ninth Circuit

In State of California v. EPA, No. 19-17480 (9th Cir. Oct. 22, 2020), the Ninth Circuit holds that the district court abused its discretion by denying the Environmental Protection Agency’s motion for relief from a court-imposed deadline under Fed. R. Civ. P. 60(b)(5), owing to an intervening change in the regulations. In so holding, theContinue reading “An Intervening Change in Law Nearly Always Warrants Modification of Injunction, Holds Ninth Circuit”

Ninth Circuit Finds No Standing Where Alleged Injury Could Only Be Redressed by Renegotiating Treaty

In Tinian Women Ass’n v. U.S. Dep’t of the Navy, No. 18-16723 (9th Cir. Sept. 20, 2020), the Ninth Circuit affirms dismissal of an environmental-law claim concerning the relocation of American troops from Okinawa, Japan to Guam. Rather than rule on the political question doctrine presented by the Government, the panel rests instead on theContinue reading “Ninth Circuit Finds No Standing Where Alleged Injury Could Only Be Redressed by Renegotiating Treaty”

CAFA Removal Petition Need Only Plausibly Allege – Not Prove – An Amount in Controversy, Holds Ninth Circuit

In Salter v. Quality Carriers, Inc., No. 20-55709 (9th Cir. Sept. 8, 2020), the Ninth Circuit holds that the district court erred in holding that a defendant seeking to remove a matter from state court under the Class Action Fairness Act (CAFA), 28 U.S.C § 1332(d), had to factually prove that amount in controversy wasContinue reading “CAFA Removal Petition Need Only Plausibly Allege – Not Prove – An Amount in Controversy, Holds Ninth Circuit”

Under “Unique Facts,” Ninth Circuit Vacates Conviction Because Judge Improperly Dismissed a Juror Hours into Deliberations

In United States v. Litwin, No. 17-10429 (9th Cir. Aug. 27, 2020), the panel hold that the district court violated a defendant’s Sixth Amendment right to a unanimous jury verdict when it dismissed a juror hours into deliberation, based on findings that lacked support in the record. Fed. R. Crim. P. 23(b)(3) permits a courtContinue reading “Under “Unique Facts,” Ninth Circuit Vacates Conviction Because Judge Improperly Dismissed a Juror Hours into Deliberations”

Ninth Circuit Holds That Filing of Fee Petition Under Lanham Act Does Not Toll Period for Filing Notice of Appeal, Splitting with the Seventh Circuit

In Nutrition Distribution LLC V. IronMag Labs, LLC, No. 19-55251 (9th Cir. Aug. 25, 2020), the Ninth Circuit decides – as a matter of first impression for that court – that the filing of a fee petition under Fed. R. Civ. P. 54(d) in a Lanham Act case does not extend the 30-day limitations periodContinue reading “Ninth Circuit Holds That Filing of Fee Petition Under Lanham Act Does Not Toll Period for Filing Notice of Appeal, Splitting with the Seventh Circuit”

Ninth Circuit Holds That Attorney Work-Product Protection Is Waived Only When Documents Are Exposed to Adversaries, Not to Consultants or Other Third Parties

In United States v. Sanmina Corp., No. 18-17036 (9th Cir. Aug. 7, 2020), the Ninth Circuit considers whether two memoranda by a taxpayer’s in-house counsel must be turned over to the IRS. The Ninth Circuit affirms the district court’s finding that any attorney-client privilege was waived, and remands for further review of attorney work-product protectionContinue reading “Ninth Circuit Holds That Attorney Work-Product Protection Is Waived Only When Documents Are Exposed to Adversaries, Not to Consultants or Other Third Parties”

Appellate Jurisdiction Lacking Over Appeal of Denial of Motion to Quash Grand Jury Subpoena Where Documents Are Not Claimed to Be Privileged, Holds Ninth Circuit

In In re Grand Jury Investigation, No. 19-10187 (9th Cir. July 27, 2020), the Ninth Circuit considers the scope of Perlman v. United States, 247 U.S. 7 (1918), which provides an exception to the general rule that denials of motions to quash grand jury subpoenas are not final and appealable orders. The grand jury, investigatingContinue reading “Appellate Jurisdiction Lacking Over Appeal of Denial of Motion to Quash Grand Jury Subpoena Where Documents Are Not Claimed to Be Privileged, Holds Ninth Circuit”