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It’s a round up – a law round up. So saddle up, grab your feed bags and hang on for a not so wild ride as I summarize what the Ninth Circuit got up to in March 2021.

ROSAS V. FAA, No. 17-55036 (Mar. 2, 2021)

In this appeal concerning a Freedom of Information Act (“FOIA”) request, the en banc Ninth Circuit joined the First, Second, Fourth, Fifth, Eighth and Tenth Circuits to hold that term “intra-agency” under 5 U.S.C. 552(b)(5)’s exemption from FOIA requests can include documents prepared by outside consultants hired by the agency, if the consultant acted in a capacity functionally equivalent to the agency when creating the documents. 

LEIGH-PINK V. RIO PROPERTIES, LLC, No. 19-17556 (Mar. 3, 2021)

After learning that some guests who had stayed at the Rio Hotel in Las Vegas contracted Legionnaires disease from the water, the plaintiffs sued the Rio to reclaim their resort fees because they contended that had they known they could potentially contract Legionnaires disease from the water, they would not have stayed at the Rio Hotel.  While people do want to potentially experience hallucinations in Las Vegas, they generally want that to be the result of their recreational activity choices and not their hotel room faucet. 

The Ninth Circuit certified to the Nevada Supreme Court whether, for purposes of a fraudulent concealment and a consumer fraud claim under NRS 41.600, a plaintiff has suffered damages if the defendant’s fraudulent actions caused the plaintiff to purchase a product or service that the plaintiff would not have otherwise purchased, even if the product or service was not worth less than what the plaintiff paid.  Stayed tuned for the answer to this question . . .

ANDERSON V. EDWARD D. JONES & CO., No. 19-17520 (Mar. 4, 2021)

Edward Jones was sued by a group of plaintiffs claiming that Edward Jones committed securities fraud when it invited plaintiffs to switch from commission-based to fee-based investment accounts without conducting a suitability analysis.  The Ninth Circuit reversed the district court’s dismissal for lack of jurisdiction under the Securities Litigation Uniform Standards Act (“SLUSA”) because it found that SLUSA does not bar state law fiduciary duty claims premised on misrepresentations or omissions that are not material to a decision to buy or sell a security. 

BERNSTEIN v. VIRGIN AMERICA, INC., Nos. 19-15382, 20-15186 (Mar. 8, 2021)

In this putative class action involving Virgin America flight attendants, the Ninth Circuit found (1) that California law governed the flight attendants’ wage and hour claims, (2) that Virgin America did not violate California’s labor laws when it compensated flight attendants for block time rather than hourly, (3) that Virgin America was subject to California’s overtime laws, (4) the Federal Aviation Act and Airline Deregulation Act do not preempt California labor laws requiring meals and rest breaks, (5) affirmed summary judgment on plaintiffs’ waiting time penalties claims, (6) affirmed the class action certification, (7) found that Virgin America was not subject to heightened penalties for its failure to abide by certain components of California labor laws because the Labor Commissioner never informed Virgin it was subject to California law, and (8) reversed the award of attorneys’ fees. 

KAISER V. CASCADE CAPITAL, LLC, No. 19-35151 (Mar. 9, 2021)

In this Fair Debt Collection Practices Act (“FDCPA”) case, the Ninth Circuit held that the FDCPA prohibits a debt collector from filing or threatening to file a lawsuit to collect debts for which the statute of limitations to commence an action to collect has expired.  However, the Ninth Circuit left open the question of whether a bona fide error as to the timeliness of the litigation threat would toll the statute of limitations under state law. 

FREYD v. UNIVERSITY OF OREGON,  No. 19-35428 (Mar. 15, 2021)

We’re closing the wage gap in this case, ladies.  Jennifer Freyd, a psychology professor, sued the University of Oregon for paying her several thousand dollars a year less than four of her male counterparts who were of equal rank and seniority.  After the district court granted summary judgment in favor of the University of Oregon on Freyd’s claims under the Equal Pay Act and Oregon state law, the Ninth Circuit reversed and found that Freyd had demonstrated a prima facie case that she and her male counterparts performed common tasks and substantially equal work and that her claims should proceed.

If Oregon doesn’t work out for Professor Freyd, she’s welcome to come teach in Nevada.  I don’t know if we have equal pay, but we do have Legionnaires disease. 

KENNEDY v. BREMERTON SCHOOL DISTRICT, No. 20-35222 (Mar. 18, 2021)

Coach Kennedy wanted to have a prayer circle in the middle of a public school football field, surrounded by the players, immediately after every football game.  After the public school district requested he pray elsewhere, he sued the school district for violation of the First Amendment and the Civil Rights Act of 1964. 

Now, this is not a case where someone was quietly praying.  This guy was giving full on sermons in the middle of the football field after the games.  When he was requested to stop, he not only refused, but began a media campaign in the local papers and television stations.  Naturally, parents got upset, the students who fancy themselves Satanists protested, and the local football games devolved into drama of Friday Night Lights proportion. 

The coach lost.  The United States Constitution’s Establishment Clause prohibits public entities from mixing government sanctioned functions with personal religious preferences because church and state are separated under our Constitution.  The Ninth Circuit agreed with the district court that the school district was well within its rights, and well outside of any constitutional violation, when it requested that the coach conduct his prayers privately. 

GREEN v. MERCY HOUSING, INC.,  Nos. 20-15134, 20-15358 (Mar. 19, 2021)

In this appeal, the Ninth Circuit held that the standards for awarding costs set forth in Christianburg Garment Co. v. EEOC, 434 U.S. 412 (1978) apply to claims brought under the Fair Housing Act.  Joining with the First, Second, Fourth and Fifth Circuits, the Ninth Circuit held that a district court must determine whether a plaintiff’s claim was frivolous, unreasonable or groundless when deciding whether to award costs to a prevailing defendant under the Fair Housing Act’s fee-shifting statute. 

O’DOAN v. SANFORD, No. 19-15623 (Mar. 19, 2021)

Normally, I do not summarize civil rights and excessive force cases.  However, out of homage to my hometown, I would be remiss not to tell the story of Mr. O’Doan, who fled from his home naked and tried to break windows.  He sued the Reno police officers who apprehended him while he was running naked down a busy street for excessive force and violation of his civil rights.

He lost. 


In this appeal, the Ninth Circuit has certified to the California Supreme Court the question of whether, under California’s Motor Carriers of Property Permit Act, a commercial automobile insurance policy continues in full force and effect until the insurer cancels the corresponding Certificate of Insurance on file with the California Department of Motor Vehicles, regardless of the insurance policy’s expiration date.


This is not a lawsuit about country music.  Instead, the Academy of Country Music sued its insurance company in state court for an alleged breach of the insurance policy.  After the insurance company removed the lawsuit to federal district court under 28 U.S.C. 1447 on the basis of diversity jurisdiction, the federal district court sua sponte (that’s fancy for “on its own without the people asking for it”) remanded the case back to state court because it, essentially, thought the insurance company was bluffing when it claimed that the amount in controversy exceeded $75,000, the jurisdictional minimum for removal to federal court.  When the insurance company filed a motion to alter or amend the district court’s remand order, the federal district court found that it lacked jurisdiction to entertain any further briefing because it had already concluded that it lacked subject matter jurisdiction over the action. 

The Ninth Circuit reversed the district court, and held that it denied the insurance company an opportunity to demonstrate that the damages at issue exceeded $75,000 when it sua sponte remanded the matter.  The Ninth Circuit further held that a notice of removal is not required to prove subject matter jurisdiction on its face.

C.L. v. DEL AMO HOSPITAL, INC., No. 19-56704 (Mar. 30, 2021)

In this service animal case, the Ninth Circuit held that the Americans with Disability Act (the “ADA”) prohibits businesses from requiring that service animals have a formal certification as a “service animal” because (1) the ADA defines dog training functionally, without reference to specific training requirements, (2) the Department of Justice has previously and consistently rejected formal certification requirements, and (3) allowing a person with a disability to self-train a service animal furthers the goals of the ADA, as other formal training may be prohibitively expensive.

This case involved a dog.  Nothing in this opinion can be interpreted as allowing you to bring your self-trained peacock on an airplane. 

TANDON v. NEWSOM, No. 21-15228 (Mar. 30, 2021)

This appeal involves a request for an emergency injunction prohibiting enforcement of Governor Newsom’s COVID-19 restrictions on private gatherings as applied to in-home Bible studies, political activities and business operations. 

Governor Newsom was sued by a couple of pastors who wanted to hold larger Bible study gatherings, a politician who blamed his failed run for Congress in 2020 on Newsom’s limitations on in-person campaign events and fundraisers, a couple who wanted to host “public affairs” at their house (whatever that means), and a bunch of business owners who claimed that Newsom’s restrictions violated their due process and equal protection rights. 

The Ninth Circuit rejected everybody’s arguments.  First, it found that there is a difference between gathering in a place of worship (which might be protected under recent SCOTUS precedent) and gathering in a home for a private bible study.  Second, it found that the politician and the homeowners were not going to prevail on their claims since the gathering restrictions actually do not apply to political activities.  Finally, the Ninth Circuit rejected the argument that COVID-19 restrictions per se violate due process and equal protection claims. 

This appeal is much more complicated than what I just summarized here.  I’ve previously written about your constitutional rights under quarantine restrictions as a business.  Similarly, SCOTUS has issued two recent opinions on how, whether and when a quarantine restriction may unconstitutionally impede on a person’s religious rights. 

FRIENDS OF THE EARTH v. SANDERSON FARMS, No. 19-16696 (Mar. 31, 2021)

Friends of the Earth is an advocacy group opposed to the routine use of antibiotics in chickens.  Sanderson Farms is a poultry producer that uses antibiotics in its chickens.  Friends of the Earth sued Sanderson Farms for false advertising, after Sanderson Farms advertised that its chickens were 100% natural. 

Normally, to sue for false advertising you have to be a consumer.  Friends of the Earth was obviously not eating Sanderson Farms’ chicken.  However, there is a concept known as “organizational standing,” which allows an advocacy group to bring an action if it can show that the challenged conduct frustrated the group’s mission and they were forced to divert resources to combat the conduct. 

The Ninth Circuit found that Friends of the Earth lacked organizational standing because it could not show that it specifically diverted assets to combat Sanderson Farms’ advertisement.  Friends of the Earth did what they had always done, i.e., report on Sanderson Farms as a bad egg, and nothing changed after they learned of the advertising.    


Maine Community Health Options was involved in an arbitration in which it subpoenaed records from Albertsons (who was not a party to the underlying arbitration).  Albertson’s objected, and Health Options initiated a lawsuit in federal district court to combat Albertson’s objection.  Health Options asserted that the federal district court had diversity jurisdiction because they were citizens of different states and the amount in controversy exceeded $75,000. 

This begs the obvious question – when you are just subpoenaed to produce documents for an arbitration to which you are not a party, what is the amount in controversy?  According to the Ninth Circuit, it is either the benefit to the plaintiff or the detriment to the defendant from enforcement of the subpoena.  If that will exceed $75,000, there is diversity jurisdiction.