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Apple Gets Legal Setback at the App Store: Antitrust Suit Revived

A federal appeals court has revived a lawsuit against Apple that alleges the company monopolizes the market for apps that run on its products.

The Ninth Circuit Court of Appeals said that Apple distributes third-party developers' applications directly from its App Store, giving purchasers standing to sue the company under anti-competition laws. Apple unsuccessfully argued that the plaintiffs did not have standing because they purchased the third party apps indirectly from Apple.

"Apple is a distributor of the iPhone apps, selling them directly to purchasers through its App Store," the appeals court said. The court then reversed a trial judge's dismissal of the case and remanded for further proceedings.

The Supreme Court isn't the only federal court with a longstanding empty seat. There are currently 114 outstanding federal judicial vacancies, including 17 on federal appellate courts. Four of those open appellate seats are on the Ninth Circuit.

Outstanding nominations expired when the new Congress convened on January 3rd, meaning that now-pending Obama nominees, like Judge Lucy H. Koh, won't fill those vacancies. That means that President-elect Trump could have an outsized impact on the courts, moving nominees more quickly through a Republican-controlled Senate. Here's what this could mean for the Ninth Circuit.

Law Firm Loses $1 Million Tax Deduction for Standby Airplane

To the lawyer who wanted a standby deduction for his aircraft, the Ninth Circuit said, "Oh no, that's not gonna fly."

At least, that's the gist of what the Ninth Circuit said about the lawyers' ill-fated attempt to deduct more than $1 million in travel expenses.

Engstrom, a plaintiff's firm in Los Angeles, tried to write off "standby" expenses for a Gulfstream IV and a Beechcraft King Air 350 turboprop between 2008 and 2010. Partner Walter Lack and attorney Thomas Girardi, a partner in his own firm, set up an aviation company to split the cost of keeping the aircraft.

A U.S. Tax Court found that Engstrom owed $1.12 million for improper travel expense deductions on more than 100 flights. The Ninth Circuit, in an unpublished opinion, said the tax court was correct.

The Second Amendment, a Ninth Circuit panel ruled in a 2-1 decision last May, protects not just the right to bear arms for self-defense, but the "right to acquire weapons for self-defense." The ruling came after a challenge to an Alameda County zoning law that allegedly barred all new gun stores in unincorporated areas. It meant that gun store regulations could be subjected to Second Amendment scrutiny, requiring the government to provide a strong public-safety justification for such restrictions.

Now, the circuit has agreed to rehear that case, Teixeira v. County of Alameda, en banc. Yesterday, a majority of Ninth Circuit judges voted to vacate the panel decision and rehear the case before an 11-judge panel.

A federal appeals court ruled the California legislature wrongly carved out a law to help workers' unions in lawsuits against their employers.

In a final order to elaborate its earlier decision, the Ninth Circuit Court of Appeals explained that the Legislature passed a "safe harbor" provision in Assembly Bill 1513 to gain the support of the the United Farm Workers of America. The UFW was engaged in litigation against one the plaintiffs at the time, and the safe harbor provision denied them a defense in the case.

"The only reason the carve-outs were included in the final bill was to procure the support of the UFW," the court said in upholding an Equal Protection claim while rejecting a Bill of Attainder claim. "A law making a defendant ineligible to assert an affirmative defense in a civil lawsuit simply does not fit within that category of legislative action."

Appeals Court On Board for New Underground Rail in L.A.

A new underground light-rail will move on down the track near Little Tokyo in Los Angeles, following a federal appeals court decision.

The Ninth Circuit upheld a district court decision turning down complaints that the proposed Metro rail system would disrupt business and harm the environment. The justices unanimously ruled that local and federal agencies had complied with environmental standards in reviewing the plan, including the choice to dig and then cover the tunnel that had been temporarily enjoined by the trial judge.

"Compared to the cut and cover method, tunnel boring is far less disruptive to surface traffic and adjacent land uses," the appeals court said in the case brought by Japanese Village Plaza and Westin Bonaventure Hotel. However, the court ruled the agencies were not "arbitrary and capricious in rejecting the tunnel boring method."

Bee advocates, environmentalists, and farmers suffered a stinging defeat in federal court last week, when the District Court for the Northern District of California ruled that EPA guidance over pesticide-coated seeds is not subject to legal review.

Bees are currently suffering unprecedented die offs, with beekeepers losing 44 percent of their bees last year. Some have pointed to neonicotinoid pesticides as a likely contributor to the deaths. Those same pesticides are often applied directly to seeds, a practice the EPA generally exempts from normal pesticide regulations. Recent guidance to that effect, given to EPA inspectors, led the apiarists and others to sue, arguing that the guidance qualified as unlawful agency action under the Administrative Procedures Act.

"The Lake Tahoe Region is an area of unmatched beauty surrounding the largest alpine lake in North America," Judge Mary M. Schroeder writes at the beginning of a recent Ninth Circuit opinion. And she couldn't be more on point. With its deep-blue waters, towering trees, and majestic mountain peaks, Lake Tahoe is one of the great natural wonders of the American West. Even the Donners must have marveled at their sublime surroundings as they succumbed to cannibalism among Tahoe's alpine slopes.

But that beauty has brought the Tahoe area incredible popularity, popularity which risks burying the area's natural charms under vacation rentals and ski resorts. To help manage that growth, the Tahoe Regional Planning Agency released, in 2012, the first comprehensive update to environmental regulations since the 1980's. And though that regional development plan may not have gone as far as environmentalists would have wanted, its environmental impact statement did not violate the requirements of the law, the Ninth Circuit ruled on Wednesday.

The Pacific bearded seal's future is on thin ice, literally and figuratively. The seals, known for their long, mustache-like whiskers, live and feed off the ice flows that cover the shallow waters off the coast of Alaska and the Arctic. Those flows are expected to decline dramatically, shrinking as climate change drives temperatures north. By 2095, loss of ice will leave the Okhotsk and Beringia bearded seal population segments endangered, according to estimates by the National Marine Fisheries Service.

As a result of the threat posed by climate change, NFMS listed the seals as threatened under the Endangered Species Act, a designation that comes with significant protections. And that listing, the Ninth Circuit ruled on Monday, was wholly allowable, rejecting a challenge that the listing was too speculative.

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