U.S. Ninth Circuit - The FindLaw 9th Circuit Court of Appeals Opinion Summaries Blog

9th Circuit July 2013 News

Double Header: EA Wins and Loses in Football Likeness Cases

In a pair of long-awaited decisions that are sure to create confusion and inspire much more litigation, the Ninth Circuit finally decided two football videogame likeness disputes with two separate and seemingly-conflicting opinions.

Jim Brown dominated the NFL for the Cleveland Browns in the 1960s. His likeness has appeared in many recent editions of the Madden NFL series as a historical, Hall of Fame, or "All-Madden" player, though Electronic Arts, the publisher of Madden, has taken some steps (such as changing the jersey number) to differentiate the otherwise similar avatar.

Sam Keller, more recently, played quarterback for the NCAA Division-I Arizona State Sun Devils. His likeness, which, according to the court, mimicked his height, weight, facial features, hair color and style, home state, playing style, school year, skin tone, throwing arm, uniform number and even his visor preference, appears in recent versions of Electronic Arts' NCAA Football.

Does Batson Apply to Gay Jurors?

A question simply phrased, yet without a simple answer.

Twice before, the Ninth Circuit has had the opportunity to decide this question. Twice they have assumed, without deciding, that Baston does prohibit the use of peremptory strikes to remove homosexual jurors for no reason other than their sexual preference. Now, in the unlikeliest of cases, an antitrust dispute between two massive pharmaceutical companies, they'll once again have their chance, reports The New York Times.

9th Cir. Sets Aside BIA Ruling; Gay Filipino Can Stay in U.S.

Rape. Repeated beatings. Unemployment. Verbal harassment.

These are the conditions Dennis Vitug, a HIV-positive, gay Filipino faced growing up in the Philippines. And after returning from a student visa-enabled trip to the U.S., he spent three years searching for a job, only to be denied because of his effeminate nature and the rampant discrimination against homosexuals in the Philippines.

However, during his time in the United States, including after he overstayed a tourist visa, he developed a drug habit and was arrested multiple times on drug possession offenses. A relapse, brought on by depression after his HIV diagnosis, led to a lengthy prison sentence and deportation proceedings.

No Expert Needed To Survive Summary Judgment in ADA Case

Could you tell the difference between a parking lot with a 2 percent grade and one with 2.1 to 2.7 percent grade?

Matt Strong is a C-5 quadriplegic, and a regular customer of Peter Piper Pizza. Based on his experiences with the restaurant, he found a number of Americans with Disabilities Act violations, including a parking lot and ramps with greater than 2 percent slopes, improperly marked and sized accessibility areas next to handicapped parking spots, and improper bathroom stalls.

Debra Milke Set for Retrial in Son's Murder After Earlier 9th Cir Relief

After 22 years on death row, in March, Debra Jean Milke was granted relief by the Ninth Circuit. That relief may be short-lasting however, as earlier this week, Maricopa County Superior Court Judge Rosa Mroz set Sept. 30 as the date for her retrial, reports the Associated Press.

Prosecutors, meanwhile, are scrambling to patch together enough evidence for a conviction, especially in light of the circuit court's decision, which recapped the investigating detective's prior misconduct and lack of creditability.

Prosecutors allege that in 1989, Milke told her 4-year-old son Christopher to dress in his best outfit, as he was headed to the mall to meet Santa Claus. Instead, Milke's roommate, James Lynn Styers and his friend, Roger Mark Scott, took the child into the desert and shot him in the back of the head three times. Both men are on death row for the killing.

Inventor of Spider-Man Toy Gets Web-Blasted by Patent Precedent

Steven Kimble must've been quite the Spider-Man fan. In 1990, he invented a toy that mimicked the superhero's ability to shoot spider-webs from his wrists, by attaching a can of foam string to a string, which could be pulled by the user's hand. (See below). He first patented the idea, then presented it to Marvel, which promised to provide royalties if they decided to go through with the idea.

They did, and they didn't. Marvel has been producing variants of the toy since the 1990s, yet refused to pay Kimble his due. After years of litigation, a patent defeat for Kimble in summary judgment, and a jury verdict on breach of contract claims in the inventor's favor, the parties finally settled matters in 2001. All appeals would be dropped, court decisions vacated, and Marvel would purchase the patent -- No. 5,072,856 -- for a lump sum plus annual royalties in perpetuity.

No Hablo Bueno: Mistranslated Miranda Means Suppressed Statements

It's hard to criticize the arresting officer here. One poorly-translated synonym may have cost this conviction, but, even with years of Spanish classes in high school and college, it's easy to see how one could make a similar mistake, especially if their Spanish has gotten as rusty as mine has.

Jeronimo Botello-Rosales was arrested on marijuana charges. Because he isn't fluent in English, the officer tried to provide the requisite Miranda warnings en Español. Alas, a minor mistranslation, and poor sentence structure, made those warnings ineffective. The warning, as provided, translates to:

Retroactively Modifying Where Immigration Regs. Have Gone Before

How does one make labor certifications and proper notice of retroactive changes to those regulations somewhat interesting? Cite Star Trek, of course.

"Time is the fire in which we burn."

Of course, any good Trekkie can tell you that the quote comes from Tolian Soran, the villan from the movie Star Trek Generations. (Or said Trekkie might've Googled it.)

The case itself involved a labor certification from the Department of Labor that was, at the time of issuance, valid indefinitely. This certification was necessary for Romeo Fulga to obtain an employment-based immigration visa to work for the Elim Church of God as a youth pastor.

Ingenious Coat Hanger Smuggler Smuggled, Didn't Bribe

Silly lower court. Smuggling is smuggling. Bribery is bribery. Buying coat hangers from China, labeling them “Made in Mexico” and “re-importing” them under the North American Free Trade Agreement (NAFTA) to avoid import “dumping” duties is … smuggling. Duh.

That’s the essence of the Ninth Circuit’s holding, which vacated the lower court’s lengthy sentence (based on bribery) and remanded for application of the clearly applicable smuggling sentencing guideline provision.

Huizar-Velazquez made millions of dollars off of his hanger-smuggling scheme because most manufacturers in China are subject to a “PRC-Wide” anti-dumping importation duty of 187.25 percent. By buying them at a duty-free rate, swapping the labels, and re-importing them, Huizar-Velazquez managed to avoid, at least according to the government, $3.5 million in tax and interest.

Anna Nicole Smith's Bankruptcy Legacy; Case Outlives Most Parties

It all began with the late Anna Nicole Smith, the Playboy Playmate and wife of billionaire oil tycoon J. Howard Marshall II. After J. Howard passed away in 1995, one year after marrying Smith, a dispute erupted over his estate, which was bequeathed nearly entirely to one son, the late E. Pierce Marshall.

Smith, whose legal name was Vickie Lynn Marshall, challenged the will, as did J. Howard III, a second son of the late billionaire. Both of the will’s challengers also declared bankruptcy, the proceedings of which led to the Ninth Circuit’s ruling late last week.