In mandamus proceedings seeking to overturn the district court's appointment of a law firm as lead counsel in a securities fraud action, the petition is granted in part where the Private Securities Litigation Reform Act made clear that it was the lead plaintiff who selected lead counsel, not the district court. However, the petition is denied in part where the district court was still entitled to approve or disapprove the lead plaintiff's choice of counsel.

Read In re: Cohen, No. 09-70378

Appellate Information

Argued and Submitted September 1, 2009

Filed November 5, 2009

Judges

Opinion by Judge B. Fletcher

Counsel

For Petitioner:

Michael F. Ram, Levy, Ram & Ollson LLP, San Francisco, CA

For Real Party in Interest:

Jonathan K. Levine and Aaron M. Sheanin, Girard Gibbs LLP, San Francisco, CA

In a bankruptcy adversary action seeking avoidance of the transfer of a parcel of real property from the debtor to defendant, defendant's appeal from the Bankruptcy Appellate Panel's (BAP) affirmance of the bankruptcy court's ruling that the doctrine of equitable tolling applied to the trustee's filing of the proceeding is dismissed where the BAP's order was nonfinal.

Read In re: Bender, No. 08-15027

Appellate Information

Argued and Submitted September 3, 2009

Filed November 5, 2009

Judges

Opinion by Judge Wallace

Counsel

For Appellant:

Christopher A. LaVoy, Phoenix, AZ

For Appellee:

David W. Engelman, Phoenix, AZ

The Ninth Circuit re-states its "abuse of discretion" standard of review, which now requires it to: 1) consider whether the district court identified the correct legal standard for decision of the issue before it; and 2) determine whether the district court's findings of fact, and its application of those findings of fact to the correct legal standard, were illogical, implausible, or without support in inferences that could be drawn from facts in the record.  Defendant's murder for hire conviction is affirmed where, applying the re-stated standard, the district court did not abuse its discretion in denying defendant's motion for a new trial.

Read US v. Hinkson, No. 05-30303

Appellate Information

Argued and Submitted December 16, 2008\

Filed November 5, 2009

Judges

Opinion by Judge Bea

Dissent by Judge B. Fletcher

Counsel

For Appellant:

Dennis P. Riordan and Donald M. Horgan, San Francisco, CA

For Appellee:

John F. De Pue and Michael D. Taxay, Department of Justice, Washington, DC

In consolidated appeals from fee awards to attorneys who successfully represented Social Security Disability Insurance claimants in federal court under contingent-fee contracts, the awards are vacated where the district court failed to follow the mandate of Gisbrecht v. Barnhart, 535 U.S. 789 (2002), in determining the fee awards.

Read Crawford v. Astrue, No. 06-55822

Appellate Information

Argued and Submitted June 22, 2009

Filed November 4, 2009

Judges

Opinion by Judge B. Fletcher

Partial Concurrence and Partial Dissent by Judge Clifton

Dissent by Judge Bea

Counsel

For Appellants:

Lawrence D. Rohlfing, Santa Fe Springs, CA

For Appellee:

Michael E. Robinson, Department of Justice, Washington, DC

Defendant's alien smuggling conviction is vacated where police unreasonably delayed defendant's arraignment before a magistrate judge to conduct a second interrogation in violation of 18 U.S.C. section 3501(c).

Read US v. Liera, No. 07-50546

Appellate Information

Argued December 10, 2008

Submitted May 5, 2009

Judges

Opinion by Judge Pregerson

Counsel

For Appellant:

Steven F. Hubacheck, Federal Defenders of San Diego, San Diego, CA

For Appellee:

Mark R. Rehe and Bruce R. Castetter, Assistant U.S. Attorneys, San Diego, CA

In an action alleging RICO violations in connection with defendants' acquisition of a Polish telecommunications company, the dismissal of the action on forum non conveniens grounds is affirmed where the relevant evidence and witnesses were located in Poland and plaintiff was engaging in forum-shopping.

Read Vivendi SA v. T-Mobile USA Inc., No. 08-35561

Appellate Information

Argued and Submitted August 3, 2009

Filed November 2, 2009

Judges

Opinion by Judge Bea

Counsel

For Appellants:

Lanny J. Davis, Garret G. Rasmussen, Adam W. Goldberg, Orrick, Herrington & Sutcliffe LLP, Washington, DC

For Appellees:

Samuel A. Keesal, Jr., Ben Suter, Robert J. Bocko, Keesal, Young & Logan, San Francisco, CA

In an action against the U.S. for encroachment onto plaintiffs' easement, the dismissal of the action for lack of subject matter jurisdiction under the Quiet Title Act is vacated where the district court needed to determine whether plaintiffs could assert jurisdiction under the Federal Tort Claims Act.

Read Robinson v. US, No. 07-17052

Appellate Information

Argued and Submitted April 17, 2009

Filed November 2, 2009

Judges

Opinion by Judge Nelson

Counsel

For Appellants:

Joseph P. Mascovich, Randolph Cregger & Chalfant LLP, Sacramento, CA

For Appellee:

Tamara N. Rountree, Environment & Natural Resources Division, U.S. Department of Justice, Washington, DC

In a drug conspiracy prosecution, the denial of defendant's motions to suppress is affirmed where: 1) the government's application to wiretap defendant's residence contained a full and complete statement as to whether or not other investigative procedures would be successful; 2) the issuing judge did not abuse his discretion in finding that the wiretap was necessary; and 3) the district court erred in finding a lack of probable cause to search defendant's residence.

Read US v. Garcia-Villalba, No. 05-30506

Appellate Information

Argued and Submitted July 6, 2009

Filed November 2, 2009

Judges

Opinion by Judge O'Scannlain

Counsel

For Appellant:

Brooks Holland, Gonzaga University School of Law, Spokane, WA

For Appellee:

Michael S. Morgan, Assistant United States Attorney, Seattle, WA

In an appeal from the district court's denial of an injunction barring defendant from pursuing an action against plaintiff in Belgium, the order is reversed where: 1) the district court applied the wrong legal standard by requiring that the claims in the domestic and foreign action be identical, instead of engaging in the required functional inquiry concerning dispositiveness; and 2) the district court relied on the clearly erroneous factual determination that defendant's Belgian claims, other than goodwill indemnities, were available apart from termination.

Read Applied Med. Dist. Corp. v. Surgical Co. BV, No. 09-55155

Appellate Information

Argued and Submitted September 4, 2009

Filed November 3, 2009

Judges

Opinion by Judge Gould

Counsel

For Appellants:

Richard J. Grabowski, Brian M. Hoffstadt and Edward S. Chang, Jones Day, Irvine, CA

For Appellee:

Bruce H. Jackson and Jerry Salcido, Baker & McKenzie LLP, San Francisco, CA

In an appeal from the tax court's decision denying taxpayers' appeal from an IRS collection due process hearing, the order is affirmed where the taxpayers' waiver of their right to receive a notice of deficiency did not require acceptance by the IRS to become effective, and the taxpayers had waived their pre-collection right to contest liability.

Read Ulrich v. Comm'r. of Int'l. Rev., No. 08-70718

Appellate Information

Argued and Submitted September 17, 2009

Filed November 3, 2009

Judges

Per Curiam

Counsel

For Petitioners:

Joe Alfred Izen, Jr., Bellaire, TX

For Respondent:

Nathan J. Hochman and Steven W. Parks, Attorneys, Tax Division, Department
of Justice, Washington, DC