New & Noteworthy - March 23, 2023

Fashion Nova Beats Fast-Fashion Rival Honey Bum’s Antitrust Suit (Bloomberg) "Fast-fashion retailer Fashion Nova Inc. shook off claims Wednesday that it organized an unlawful group boycott by threatening to stop purchasing from certain clothing vendors unless they stopped selling to its competitor Honey Bum LLC. Honey Bum’s antitrust claims fail because it didn’t show there was a horizontal agreement between the vendors themselves to boycott Honey Bum, the US Court of Appeals for the Ninth Circuit ruled in an opinion by Judge Milan D. Smith Jr. Honey Bum asserted a per se group boycott, where competitors enter into a horizontal agreement to boycott a firm and the boycott’s initiator had no purpose other than disadvantaging the target."  

9th Circ. Denies Self-Representing Atty $536K in Legal Fees (Law360) "The Ninth Circuit rejected a request for $536,000 in legal fees from a former U.S. Department of Justice attorney who successfully defended himself against an erroneous tax bill, though the circuit said he may be able to ask the U.S. Tax Court for the refund. Professor and former DOJ attorney Daniel Jacobs can try to recover the expense in legal work he performed on his own case if the Tax Court decides in Jacobs' favor on a related issue, the three-judge panel said, issuing its decision Monday without prejudice."  

Panel Reluctant to Revive Nfl Players’ Doping Class Action (Daily Journal) "A 9th U.S. Circuit Court of Appeals panel expressed little interest in reviving a class action by nine former NFL players who accused the league of negligence for allowing teams to dope them to get them back on the football field, causing a host of medical problems down the line. Two of the judges on a Tuesday afternoon panel told the plaintiffs’ attorney, Phillip J. Closius of Silverman Thompson Slutkin White LLC, that they weren’t persuaded Senior U.S. District Judge William Alsup of San Francisco was wrong to dismiss the case, most recently in December 2021.”  

Potty Humor at Whiskey Legend’s Expense Gives High Court a Chuckle (Courthouse News Service) "The normally sedate Supreme Court broke into fits of laughter on Wednesday while reviewing a toymaker’s spoof on Jack Daniel's Tennessee Whiskey. Advertised as ‘The Old No.2 on your Tennessee carpet,’ Bad Spaniels Silly Squeaker dog toy advertises ‘43% Poo by Vol.’ and that it is ‘100% Smelly.’ For Jack Daniel's, even the whiff of association to its Old No. 7 Brand was enough to begin litigation that landed on the high court steps this morning.… Ruling in favor of Jack Daniel’s, a federal judge said the toy should not be protected by the First Amendment because it is sold as a commercial product. A unanimous panel on the Ninth Circuit reversed, sending the case back to the district court where VIP's First Amendment protections prevailed. The Ninth Circuit affirmed on appeal, sending the case to the justices."  

Robocall Class Lacks Concrete Harm, ViSalus Tells High Court (Law360) "Health supplement maker ViSalus is pressing the U.S. Supreme Court to review the Ninth Circuit's ruling that robocall recipients who obtained a $925 million jury verdict had alleged concrete harm to press their claims, arguing the refusal to shut down the class collides with high court precedent.  In a petition for a writ of certiorari docketed Tuesday, ViSalus rallied against the portion of a Ninth Circuit ruling handed down in October that held that a certified class of robocall recipients had established Article III standing to support their allegations under the Telephone Consumer Protection Act."   

Federal Prison Warden Gets Six Years for Sexual Abuse of Inmates (Courthouse News Service) "A federal prison warden with more than three decades’ professional experience will spend nearly six years in prison for sexually abusing inmates in his care and for lying to the FBI to cover up his tracks. U.S. District Judge Yvonne Gonzalez Rogers [N.D. - CA] sentenced Ray Garcia on Wednesday to five years and 10 months behind bars after a jury found him guilty in February on seven counts of sexual abuse and one count of lying to the FBI after two days of deliberations. Prosecutors had asked for a 15-year sentence, 10 more than sentencing guidelines recommend."   

CBP Flouted Pastor's First Amendment Rights, Judge Says (Law360) "A California federal judge has ruled in favor of a New York pastor who alleged U.S. border officials trounced her First Amendment rights by retaliating against her for ministering to members of a migrant caravan in Mexico. U.S. District Judge Todd W. Robinson [S.D. - CA] handed down his ruling on Tuesday, finding that a December 2018 email from a U.S. Customs and Border Protection official to Mexican immigration authorities with instructions to detain and return Kaji Dousa, along with other individuals, to the U.S. was sent in retaliation for protected speech. The email also flouted the free exercise clause of the First Amendment because it has restricted her ministry in Mexico, the judge's order said."   

Huntington Beach Vows to Continue Fight Against Housing Law (Daily Journal) "A federal judge denied the City of Huntington Beach’s request for a temporary restraining order in its housing density lawsuit against the state, but City Attorney Michael E. Gates said Wednesday that litigation is ongoing and his office will be considering other legal options. In his denial order, U.S. District Judge Fred W. Slaughter in Santa Ana said Huntington Beach did not provide enough evidence that it would be ‘irreparably prejudiced’ if the court hears the lawsuit according to regular procedures."  

Post Malone Reaches Settlement Before ‘Circles’ Copyright Trial (Bloomberg) "Hip hop artist Post Malone reached an eleventh-hour settlement in a copyright case over the authorship of the 2019 hit song ‘Circles,’ which was set for a jury trial in Los Angeles federal court this week. US District Judge Otis Wright said in a Tuesday court filing that he was informed the parties have ‘reached a settlement in principle’ and will file the proper dismissal documents. The musician Tyler Armes claimed in the lawsuit filed in 2020 that he was a co-author of ‘Circles’ and should be entitled to credit and royalties for the song, which topped the US Billboard Hot 100. He said he co-wrote the chords, bassline, and lead guitar line for what would eventually become ‘Circles.’"   

Court Rules Shepherds Can Bring New Wage Fixing Claims (Law360) "A Nevada federal court refused to toss a second suit accusing the Western Range Association of fixing wages for shepherds near the lowest possible level, crediting new evidence not seen by the Tenth Circuit when it refused to revive similar claims. U.S. District Judge Miranda M. Du issued an order Tuesday denying WRA's motion to dismiss, rejecting arguments the suit is barred by the previous action in Colorado and contentions that the association is immune from the antitrust claims. The judge also found the case plausibly alleges a wage-fixing scheme among WRA and its members based on testimony from WRA's former Executive Director Dennis Richins, suggesting the association instructs its members to pay the minimum required by the U.S. Department of Labor."  

Edelson RICO Suit Against Girardi Stayed Pending Criminal Cases (Bloomberg) "Three parallel criminal proceedings against ex-Girardi Keese attorneys and its chief financial officer prompted a federal judge to stay proceedings in a civil racketeering lawsuit Edelson PC filed against the Southern California law firm. Judge John F. Walter, US District Court for the Central District of California, late Wednesday granted the delays sought by former partner David Lira, chief financial officer Christopher Kamon, and litigation funder George Hatcher and his Wrongful Death Consultants."  

Senior Defense Attorney Has ‘Long Road Back’ Before He Can Deal With Bribery Trial (Daily Journal) "The federal judge overseeing former Los Angeles deputy mayor Raymond Chan’s bribery and extortion trial said in a hearing Wednesday that he needed more medical information from the doctors treating defense attorney Harland W. Braun before deciding on a mistrial. Setting April 24 as the new tentative date for the trial to resume, U.S. District Judge John F. Walter [C.D. - CA] told the parties that he would defer ruling on the motion for a mistrial ‘until I have a better opportunity or ability to consider the alternatives to a mistrial and choose the alternative least harmful to Mr. Chan’s rights.’"  

Volunteer Coaches Sue NCAA for Back Pay After Rule Change (Daily Journal) "The complaint accuses the NCAA of violating Section 1 of the Sherman Act prohibiting unlawful restraint of trade and seeks treble damages as well as actual damages in an amount to be determined at trial. ‘Persons were hired as coaches by NCAA member institutions, but the schools were prohibited by an NCAA rule, to which all member institutions agreed to abide, from paying them anything for their work,’ read the complaint. Colon et al. v. National Collegiate Athletic Association, 1:23-at-00245 (E.D. Cal., filed March 21, 2023)."   

SuperValu, Safeway Urge Justices to Avoid Drug Pricing Penalties (Bloomberg) "It would be unfair to revive two False Claims Act suits alleging that SuperValu Inc. and Safeway Inc. overcharged the government for prescription drugs, because of the government’s lack of clarity in Medicare and Medicaid pricing rules, the companies told the US Supreme Court. The US Court of Appeals for the Seventh Circuit affirmed the rejection of the suits, concluding that the companies didn’t knowingly overcharge for drugs because they followed an objectively reasonable interpretation of the law. Whistleblowers say the cases should be reinstated because the companies subjectively believed they were improperly seeking reimbursement when they submitted claims."   

Ramsey sworn in as US attorney for Northern District (Daily Journal) "U.S. Attorney Ismail J. Ramsey was sworn in Tuesday, taking charge of the Northern District of California office where he spent four years as a line prosecutor early in his legal career. He was sworn in by Senior U.S. District Judge Thelton E. Henderson, Ramsey is a Harvard Law School graduate who also has a master's degree from UC Berkeley's Haas School of Business and is a U.S. Air Force veteran."  

The Importance of Keeping Your Personnel File Up-to-Date (My Federal Retirement) "Records are filed in an employee’s Official Personnel Folder (OPF) to document events in an employee’s federal employment history. These records obviously have long term consequences for the employee and the federal government. This column discusses why an employee’s OPF is vitally important for the employee – including for retirement purposes – and how employees can get a copy of their OPF and make changes in case there are errors or omissions."