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

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The Anheuser-Busch and SABMiller merger, aka the Budweiser-Miller merger, has been approved and the most recent legal challenge denied. As the Ninth Circuit explained, the lawsuit, brought by "a bevy of beer aficionados trying to undo the acquisition of one brewing behemoth by another" failed to "belly up to the bar."

As far as quotes from the appellate court's decision, that's about as good as it gets. Unfortunately, the court's great quotes mean that the "beer aficionados" lost.

In what is surely an upset to many investors, but particularly to the potential class representatives who were seeking to hold Theranos liable for misrepresenting their technology, a federal judge in the Northern District of California has denied their motion for class certification. For Theranos, this may be the first break they've caught in a while (though it could be appealed or potentially refiled).

In short, the court found that the plaintiffs' claims were best resolved as individual claims due to the issue of reliance requiring individualized assessments. Central to the class claims is the assertion that the investors relied on Theranos's representations to the public in investing money in firms that would invest in Theranos. And while federal law would protect Theranos from indirect investors, California law does not.

FTC Wins Major Ruling Over AT&T

The FTC may have lost the legislative battle to the big corporate interests, but the Ninth Circuit recently handed the agency a big win in its second appeal against AT&T. The case started back in 2014 with the FTC filing a lawsuit related to AT&T's throttling of mobile data for certain customers.

Interestingly, in 2015, the FCC ruled that providers of mobile data/internet service were in fact common carriers. Notably, the common carrier distinction removed AT&T from the regulatory purview of the FTC. However, with the anticipated repeal of the net neutrality rules, mobile data providers will no longer be considered common carriers for providing mobile data services.

Cancelling a Contract Doesn't Negate Prior Consent to Receive Text Messages

The Ninth Circuit ruled that a customer who gave his phone number to a gym cannot sue the company for contacting him by text message -- even after the customer cancelled his membership.

According to the ruling, it was a matter of context and a failure to expressly revoke consent. The man cancelled his membership, but he did not expressly revoke his consent to receive messages.

"The call or text message must be based on the circumstance in which the consumer gave his or her number," the appellate court said in an unanimous opinion. "The consumer may revoke his or her consent but in that case must clearly express that he or she does not want to receive the messages or calls."

Fannie and Freddie are Private Companies 9th Cir. Says

The Ninth Circuit Court of Appeals just affirmed a district court's ruling that mega-mortgage companies Fannie Mae and Freddie Mac are private companies, not agents for purposes of the False Claims Act.

The plaintiffs in the case argued that Fannie Mae and Freddie Mac are Delaware corporations, so Delaware law applies to them. Since Net Worth Sweep is a violation under Delaware law, plaintiffs contend that the mortgage companies violate the law with Net Worth Sweep.

Cash Payments to Athletes? No. Ban on Cash Payments? No.

The NCAA lost some and won some in the wake of the Ninth Circuit decision. The court ruled 2-1 that the National Collegiate Athletic Association was not required to pay athletes royalties for the use of their names and likenesses. 

On the other hand, the court also found that a complete ban on royalties to athletes for use of their likeness in video games and telecasts violates anti-trust laws. Confused?

In a class action lawsuit that's sure to get heart rates up, a Florida man has alleged that Fitbit's technology is a fraud. James Brickman claims that the company duped him and others out of their cash by making false claims that it could track their sleep.

Fitbit sells wearable tech devices that track a consumer's steps, calories burned, distance covered and other data. Those features have made it a widely popular accessory amongst fitness nerds. The company also advertises a sleep tracking feature, promising "quantified sleep" and "quality data." According to the class action, however, the product's sleep tracking function does not and cannot do what it claims.

New Car Owners Not Bound by Sirius XM Arbitration Clause: 9th Cir.

Sirius XM -- boy, it's great, isn't it? Satellite radio gives you a separate station for every decade since the wax cylinder was invented (you'll love their "1880s on 80" station). Plus, there's Howard Stern.

But Sirius comes with a hidden price, other than listening to Howard Stern: An arbitration agreement that purports to bind the consumer, as part of the 90-day free trial that comes with a new car.

High Roller's Suit Against Wynn Over Unpaid Debts Can Proceed

In 2010, German gambler Konstantin Zoggolis had taken out credit from the Wynn casino in Las Vegas to the tune of about $1.3 million. Wynn said it was time to pay up; Zoggolis couldn't pay. I know you're thinking: "Why would Zoggolis sue Wynn? These were his debts! Of course he should have to pay them!" But there's more going on here.

The Nevada Gaming Commission allows a gambling patron to "self limit his access to the issuance of credit." Basically, a compulsive gambler can tell the casino, "No matter how much I ask, don't lend me any more money." Wynn and Zoggolis had an agreement that Wynn couldn't loan him any more than $250,000, but in spite of this agreement, the casino loaned him $1.05 million more in September and October 2010.

Tablet Fire Sale Leads to Shrinkwrap/Clickwrap/Browsewrap Confusion

A few years back, a firestorm hit the Internet -- and by a firestorm, I mean a fire sale. A tablet, with specifications on par with the high-end Apple and Android devices of the time, priced at $499.99 to $599.99, would go on sale for as low as $99, as HP had decided to scrap its Touchpad line a mere month after it launched.

Unsurprisingly, every retailer in the world sold out of Touchpads within hours. HP's now-dead tablet was the second-best seller of the year behind the iPad. And a few disgruntled customers, who had placed orders online, were left with nothing but sadness and a cancellation email when retailers like Barnes & Noble oversold their inventory.

Well, sadness and a lawsuit, that is. And an interesting issue of shrinkwrap/clickwrap/browsewrap contracts.