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

9th Circuit January 2018 News

The cookie business is serious business. And when Whole Foods used the name "Eat Right America" to brand food items that were not made by the cookie maker EatRight Foods (who actually sold their cookies at Whole Foods), Eat Right Foods had to put up a fight to protect their trademark.

Unfortunately for EatRight, the cookie trademark fight hit a serious setback in 2015 when the district court dismissed their claims due to a laches defense. However, on appeal, the Ninth Circuit just ruled that the district court's judgment was a bit hasty, and the panel of judges reversed and remanded.

A recent case decided by the Ninth Circuit has been causing a stir, simply for reaffirming what's already well established, though resoundingly un-liked, under the law: Accompanied minors facing deportation do not have the right to an attorney provided by the government.

In addition to that holding, the Ninth Circuit also rejected the notion that an immigration judge is required to advise of all possible eligibilities for benefits. Rather, the court explained that only the benefits that the record clearly shows an alien is eligible for are required to be advised.

Court: Baby Butt Photos 'Not Provocative'

A.J. Demaree took a picture of his children -- ages five, four, and one -- lying down naked on a towel with their bottoms exposed.

Responding to a report of possible child abuse, a police officer asked the father why he took the photos. "So when we look back on 'em years later, look at their cute little butts," he said.

Child protective services took the children, but returned them after a month without any charges against Demaree or his wife. The parents sued for constitutional violations, and a federal appeals court upheld their complaint in Demaree v. Pederson.

Internet users can breathe a collective sigh of relief as the Ninth Circuit has just reaffirmed their prior precedent that violating a website's terms of service is not a criminal act.

While the appeal handed down is a mixed bag of good and bad news for Rimini, the company Oracle sought to hold criminally liable for violating Oracle's TOS, the good is that Rimini has escaped the criminal liability portion of the district court's judgment. The bad news is that the circuit court affirmed the district court's judgment on the copyright infringement claims.

Court Upholds California Laws Against Prostitution

Sex sells, but that doesn't make prostitution legal.

That's a quick summary of Erotic Service Provider Legal Education and Research Project v. Gascon. The case drew a lot of attention -- because the plaintiff sued to legalize prostitution -- but the world's oldest profession was outlawed long ago.

The U.S. Ninth Circuit Court of Appeals said there's no fundamental right to engage in prostitution -- at least not in California.

Surrogate Mother Can't Regain Her Children, 9th Cir. Rules

Attorney Robert Walmsley has been on the forefront of surrogacy law since before it became the law.

That's because he represented the biological parents against a surrogate they hired in Johnson v. Calvert, the groundbreaking case that upheld a surrogacy contract in California in 1993. And so it was natural for him to cite his own case on behalf of his client in a dispute between a surrogate and a biological father.

In Cook v. Harding, the U.S. Ninth Circuit Court of Appeals rejected the surrogate's efforts to wrest triplets from a man who paid her to carry the children to term. As it turned out, her attorneys should have read the law more carefully.

Free TV still exists, and some of the new digital antennae even resemble the bunny-ears of years past. However, just like stealing cable became a thing decades ago, stealing streaming subscription TV is becoming a thing in our 21st century digital world.

If you didn't know, there are numerous websites out there, with less than scrupulous regard for U.S law, that allow anyone to stream just about anything on TV or in the theaters, for free. A new-ish device, The Dragon Box, allows individuals to essentially watch everything available online from these types of websites, right on their TVs, regardless of legality. Not surprisingly, the legitimate streaming services, and other providers, have a problem with this new device and have filed a lawsuit in the Federal District Court for Central District of California. Plaintiffs include: Netflix, Amazon, Disney, Paramount, Twentieth Century Fox, Universal, Warner Bros., and Columbia Pictures. 

After President Trump decided to end DACA, challenges were brought almost immediately as the potential harm for the "dreamers" was imminent. Judge William Alsup of the United States District Court for the Northern District of California, as one of the first federal court judges to hear a challenge, issued a preliminary injunction requiring the federal government to revive part of DACA while the lawsuit weaves its way through the court.

The injunction prohibits the government from ending the program for current dreamers, and requires it to accept renewal applications. However, the injunction does permit the government to refuse to accept new applications. Also, the injunction does not prevent the government from denying reentry into the country if a dreamer leaves.

Judge Throws Out Bundy Stand-Off Case

It was the Western shootout that never happened.

Cliven Bundy and his sons stood their ground against federal agents in an armed standoff outside his Nevada ranch. The Bundys refused -- over their dead bodies -- to pay federal grazing fees.

They were charged with multiple felonies, but they didn't stick. Like the shootout, it's like they never happened.

Court Cuts Back Idaho's 'Ag Gag' Law

Torturing cows was bad enough, but then Idaho tortured the First Amendment.

That's a short reading of Animal Legal Defense Fund v. Wasden. Animal rights activists sued to invalidate a law against surreptitious recording enacted after videos exposed mistreatment of the animals at a dairy farm.

The U.S. Ninth Circuit Court of Appeals, in a divided opinion, said the statute was "staggeringly overbroad." But that was nothing compared to the shock from the videos.

For a handful of California retailers, a Ninth Circuit decision basically invalidates the state law prohibiting merchants from charging customers an additional fee, or surcharge, for using a credit card. Unfortunately for retailers across the state, the decision only applies to the parties to the action.

Under current California law, a retailer cannot charge customers more for using a credit card. Rather curiously and somewhat hypocritically, under the law, a retailer can legally offer a discount to cash paying customers. Basically, it all boils down to how the price and discount are communicated, which turns this into a First Amendment commercial speech issue.