US Court of Appeals for the Ninth Circuit

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On June 8, 2023, the U.S. Supreme Court issued its decision in Jack Daniel’s Properties, Inc. v. VIP Products, LLC and provided some clarity as to the applicability of the “Rogers test,” a doctrine that grapples with the interplay of trademark law and the First Amendment. The case involved a trademark dispute between Jack Daniel’s Properties, the maker of the famous whiskey, and VIP, a dog toy company that makes and sells a product called “Bad Spaniels.” The Bad Spaniels squeaky toy is in the shape of a whiskey bottle and has a black label with white font similar to Jack Daniel’s; in place of “Old No. 7 Brand Tennessee Sour Mash Whiskey,” the toy reads, “The Old No. 2 On Your Tennessee Carpet.” After VIP initially filed suit against Jack Daniel’s seeking declaratory judgment that the product did not infringe on Jack Daniel’s trademarks, Jack Daniel’s brought counterclaims under the Lanham Act for trademark infringement and trademark dilution.

The Ninth Circuit recently issued an opinion that could shape how companies draft and revise two oft-encountered types of contracts: terms of service agreements (“TOS”) and arbitration clauses.

In Jackson v. Amazon.com, Inc., the Ninth Circuit affirmed the district court’s order denying Amazon.com, Inc.’s motion to compel arbitration in a case brought by a proposed class of “Amazon Flex” drivers. Amazon Flex is a delivery program run through a smartphone app that Amazon uses to engage individuals to make Amazon deliveries in their personal cars. 

Consumer advocates, defense attorneys, tort reformists, and trial judges are all eagerly awaiting a decision by the Ninth Circuit which all hope will clarify the process for certifying a nationwide settlement class in the Ninth Circuit. Specifically, an en banc Ninth Circuit panel will decide whether “variations in state law can defeat” predominance in class action litigation. 

The Ninth Circuit recently became the third federal appellate court to tackle what constitutes “personally identifiable information” protected by the Video Privacy Protection Act of 1988 (“VPPA”). Last year, the First Circuit and the Third Circuit propounded different standards for applying this statute, as they each grappled with the necessary leap from the age of VCRs to modern video services. In Eichenberg v. ESPN, the Ninth Circuit weighed in, adopting the Third Circuit’s approach and holding that a Roku device serial number coupled with the names of videos watched on an ESPN application were not “personally identifiable” within the meaning of the VPPA. The information, the Ninth Circuit reasoned, would not “readily permit an ordinary person to identify a specific individual’s video-watching behavior.” Therefore it was not protected by the VPPA.

When it overturned a federal court’s order suppressing a litigant’s right to publicly gripe about a pending suit late last month, the Ninth Circuit took the opportunity to remind those of us in the legal profession that we are held to a different, higher standard when it comes to public comment on litigation. In an early footnote in the Court’s opinion in In re Dan Farr Productions, the Ninth Circuit distinguished the instant case from its prior decision in Levine v. U.S. Dist. Court, noting that counsel “are officers of the court subject to fiduciary and ethical obligations” which “do[] not apply to non-attorney participants.” Slip Op. at fn. 3.

On August 15, 2017, the Ninth Circuit delivered the latest episode in the Robins v. Spokeo saga, reaffirming on remand from the Supreme Court that plaintiff Robins had alleged an injury in fact sufficient for Article III standing to bring claims under the Fair Credit Reporting Act (FCRA).

Robins had brought a putative class action against Spokeo, which operates a “people search engine” that compiles consumer data into online reports of individuals’ personal information.  Robins alleged that Spokeo had willfully violated the FCRA’s procedural requirements, including that consumer reporting agencies must “follow reasonable procedures to assure maximum possible accuracy of the information” in consumer reports, because Spokeo’s report on Robins allegedly listed the wrong age, marital status, wealth, education level, and profession, and included a photo of a different person.  According to Robins, the inaccuracies in the report about him harmed his employment prospects and caused him emotional distress.

The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Service Convention” or “Convention”), was designed to simplify and standardize the service of legal documents across international borders. But for decades, U.S. courts divided over a seemingly simple question: does the Hague Service Convention prohibit service by mail?

The Xbox 360 is designed for gaming. Appellate litigation, gamers learned, is not.

On behalf of a putative class of purchasers of the Xbox 360, a group of gamers brought suit alleging a defect with the consoles. After the district court struck the class allegations, plaintiffs sought permission to appeal under Rule 23(f), which the Ninth Circuit denied. Rather than proceeding in litigation to final judgment, plaintiffs instead voluntarily dismissed their claims, with prejudice, while reserving a right to appeal the order striking class allegations. Plaintiffs then appealed the order under Section 1291. On appeal, the Ninth Circuit held that it had appellate jurisdiction and thus the case was still “sufficiently adverse” to be heard under §1291. The Supreme Court granted certiorari on the question of whether courts of appeals “have jurisdiction under §1291 and Article III . . . to review an order denying class certification (or, as here, an order striking class allegations) after the named plaintiffs have voluntarily dismissed their claims with prejudice.”