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9th Circuit December 2017 News

Ninth Cir. Decides: Are Cosmetology Students Employees?

For the Marinello Schools of Beauty, an adverse court decision would have required a complete make-over of the business plan.

Students had sued the cosmetology school, alleging they were treated like employees and were owed money for cleaning up salons and other menial tasks. The school answered that they were students fulfilling educational requirements.

In Benjamin v. B&H Education, Inc., the courts said the schools were just doing business as usual. For now, students will get the haircut when working for cosmetology licenses.

If you follow legal news at all, you've likely heard about the controversy surrounding Judge Alex Kozinski of the Ninth Circuit Court of Appeals. In response, the former chief justice, who has served on the Ninth Circuit since 1985, announced his abrupt retirement, effective immediately, on December 18, 2017.

Not two weeks after allegations of sexual misconduct surfaced, Judge Kozinski felt compelled to step down from the bench. As his official statement explains, he does not feel that he can be an effective judge while fighting these allegations. Additionally, he expressed concern over the reputation of the federal bench if he did not step down.

The Marin Alliance for Medical Marijuana (MAMM) fought the law, and even though the law didn't win, the Ninth Circuit ruled that the pot shop is not entitled to attorney fees, despite what the Equal Access to Justice Act says.

Basically, when the government acts foolishly in pursuing legal action and a private party must take legal action to stop it, those private parties can have their attorney fees paid back. In the MAMM case, the court found that the pot shop didn't necessarily win their case as much as the government just lost theirs, and that actually makes a significant difference when it comes to enforcing the attorney fee shift under the EAJA.

Kozinski Joins the List of Weinsteins

Few names reverberate in the media today like 'Weinstein.'

It's no longer just a name; it's a label. If you see it in a headline, it means "a sexual harasser who used his power to prey on women."

"Kozinski" is like that. It used to mean a judge of exceptional intellect and a talent for writing, but it doesn't mean that anymore.

Rarely do you read a court opinion that explicitly says that the court is reaching the wrong decision. But that is in fact what happened in the Ninth Circuit's recent opinion in the Frudden v. Pilling First Amendment school uniform case which has ping-ponged through the courts since 2011.

In the section aptly titled "Our Disagreement with the Result We Are Required to Reach" the court, not surprisingly, goes into detail as to why it disagrees with the very decision it is bound to render by its own precedent. Fortunately for the plaintiffs in the matter, two parents that objected to their children wearing the uniforms, that controversial decision held that the school's uniform policy was unconstitutional.

The Juliana v. United States matter was heard by a three judge panel of the Ninth Circuit Court of Appeals this week. And while some might expect that the most liberal circuit in the nation would have been throwing softballs to plaintiffs' attorney, the tenor of the questioning was equally harsh on both sides.

Notably, prior to the appeal, the Ninth Circuit issued a stay in the matter, pending their review. The case involves a group of children filing suit against the federal government due to its alleged actions that cause and contribute to climate change.

9th Circuit Considers Terrorism Liability Claim Against Twitter

Joshua Arisohn, an attorney suing Twitter for enabling terrorists, sees the problem differently than most social media users.

Arguing to the U.S. Ninth Circuit Court of Appeals, he said social media companies may not be legally liable for content on their websites, but they should be liable for giving social media accounts to terrorists.

"Handing someone a tool that can be used to create content is not the same as disseminating content," Arisohn said. However, it's a hard task to argue around the law and judges who have already dismissed such cases.

Ninth Circuit Finds Consumer Standing in ESPN Privacy Case

In football, a quarterback usually scores through others -- like a running back who takes a handoff and runs the ball into the end zone.

Chad Eichenberger might feel a little like a quarterback in his case against ESPN. He sued the sports channel for invasion of privacy when it disclosed his video preferences to an analytics service.

A judge dismissed the case, and a federal appeals court affirmed, because nobody could actually identify him from the disclosure. But Eichenberger did have standing to sue, the U.S. Ninth Circuit Court of Appeals said, and that set up the play for the next plaintiff -- like a handoff.

At this point, nearly everyone has at least heard of Bitcoin. The intangible cryptocurrency has been making headlines recently for reaching an all-time high, soaring to over $11,000 per Bitcoin.

However, a recent decision out of the Federal District Court for the Northern District of California may have some crypto-investors concerned, as the IRS wants to get to know Bitcoin users in a way they're likely not going to like, and the court is giving the federal agency the go ahead. The Bitcoin exchange service, Coinbase, was just ordered to identify to the IRS the 14,000 plus users who have exchanged $20,000 or more worth of Bitcoin per year for 2014 and 2015.