Ninth Circuit

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Imagine you are an investor and you decide to file a lawsuit after a company that you invest in suffers a stock drop. When you get to the courthouse, you find that you are the first person to file a federal securities class action on these facts. However, because of the Private Securities Litigation Reform Act (PSLRA), the district court chooses another party to be “lead plaintiff” in the litigation. Under the control of that lead plaintiff, the court dismisses the case prior to class certification, and you want to appeal that decision. Do you have standing? Your name is in the case caption for the active complaint. You were, in fact, the very first plaintiff in this action. But you aren’t the lead plaintiff anymore. 

There is a time and place for everything, or so they say. Eminem and Too $hort are both somewhat polarizing artists. From songs such as Eminem’s “Cleaning Out My Closet” to Too $hort’s infamous “Blow The Whistle”, some of their more provocative music has been put in the spotlight in the workplace of an apparel manufacturer. Stephanie Sharp and six other employees, including one man, filed a hostile work environment claim under Title VII of the Civil Rights Act against their employer. The plaintiffs alleged that many employees, “mostly women”, complained to the employer about the “obscene and sexually offensive and misogynistic character” of the music being played in the workplace, even as far as various employees placing speakers on a forklift and driving around the facility blasting the music. However, notably, “a number of men” were also “offended by the manner in which the music portrayed men, and their relationships with women.” The employer argued that the conduct was not discriminatory on the basis of sex, emphasizing that “both men and women were offended by the work environment allegedly created by the music played in the warehouse.”

Addressing an issue of first impression, and one that is becoming increasingly important as the legal industry has become more comfortable with and dependent on video conference technology in the aftermath of the pandemic, the Ninth Circuit has ruled that the 100-mile limitation under Rule 45(c) of the Federal Rules of Civil Procedure applies to remote testimony.

In In re John Kirkland, et al. v. USBC, Los Angeles, the petitioners, Mr. and Mrs. Kirkland who resided in California before relocating to the U.S. Virgin Islands, moved to quash subpoenas commanding them to testify via video conference at a trial before a bankruptcy court in the Central District of California. The bankruptcy court denied the motions finding that “good cause and compelling circumstances” existed to warrant the petitioners’ remote testimony pursuant to Rule 43(a), which provides that “[a]t trial, the witnesses’ testimony must be taken in open court unless a federal statute, the Federal Rules of Evidence, these rules, or other rules adopted by the Supreme Court provide otherwise[; and f]or good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location.” The bankruptcy court also concluded that Rule 45(c)’s “place of compliance” should be based on where a witness is located as requiring a witness to testify remotely from the witness’s home is not contrary to the purpose of Rule 45(c), which is to protect witnesses from the burden of having to travel extensively to testify at a trial or other proceeding.

Parties to an arbitration agreement sometimes choose to include a delegation clause, which is a provision that delegates to the arbitrator—rather than a court—gateway questions of arbitrability, such as whether the agreement covers a particular controversy or whether the arbitration provision is enforceable at all. See Caremark LLC v. Chickasaw Nation.

In Holley-Gallegly v. TA Operating, LLC, the Ninth Circuit recently reinforced the Supreme Court’s decade-old distinction between the analysis needed to determine whether a dispute is subject to arbitration on the one hand, and whether an arbitrator has been legally delegated the authority to make that threshold determination on the other. The decision provides important lessons to practitioners litigating disputes regarding the enforceability of delegation clauses.

The Class Action Fairness Act (“CAFA”), was enacted to make federal courts the primary venue for class action litigation. It did so by modifying the usual jurisdictional requirements of the diversity jurisdiction statute. Under CAFA, federal courts may exercise removal jurisdiction over state law class actions originally filed in state court so long as there is “minimal” rather than “complete” diversity, and the amount in controversy is greater than $5 million.

In an unsigned per curiam opinion yesterday in Gonzalez v. Google, the U.S. Supreme Court vacated the Ninth Circuit’s judgment— which had held that plaintiffs’ complaint was barred by Section 230 of the Communications Decency Act – and remanded it. But the Court’s opinion entirely skirted a highly-anticipated issue: whether Section 230 does, in fact, shelter as much activity as courts have held to date.