Justia Legal Ethics Opinion Summaries

The Ninth Circuit reversed the district court's denial of plaintiff's motion for attorneys' fees in this Freedom of Information Act (FOIA) action against the DOJ. The panel concluded that plaintiff obtained relief through a judicial order that changed the legal relationship between the parties, and thus he is eligible for a fee award under 5 U.S.C. 552(a)(4)(E)(ii)(I). In this case, plaintiff initially submitted a FOIA request for records related to the alleged electronic surveillance of President Trump and his advisors during the 2016 election. The DOJ responded with a Glomar response. After plaintiff filed suit, President Trump declassified a memorandum that divulged the existence of responsive records and the DOJ then agreed to turn over any newly revealed, non-exempt documents by a specific date.The panel explained that Congress passed the OPEN Government Act of 2007, which provided that a plaintiff may establish eligibility for FOIA attorneys' fees in one of two ways: (1) where the relief sought resulted from a judicial order or consent decree and (2) where a voluntary change in position afforded the plaintiff relief. The panel remanded to the district court to determine whether plaintiff is entitled to fees given the unique circumstances underlying the government's change of position. View "Poulsen v. Department of Defense" on Justia Law

In a published order, the Ninth Circuit denied a motion for attorneys' fees under the Equal Access to Justice Act (EAJA) in a case in which the panel had previously remanded petitioner's application for relief from removal to the BIA for reconsideration in light of the en banc court's intervening decision in Bringas-Rodriguez v. Sessions, 850 F.3d 1051 (9th Cir. 2017) (en banc).The panel concluded that petitioner was not entitled to attorney's fees because the government's position was substantially justified. In this case, the government seeks a voluntary remand and the panel has already recognized that the en banc decision in Bringas-Rodriguez acted as intervening case law. The panel rejected petitioner's contentions to the contrary. Therefore, because the government's position was substantially justified, EAJA fees are not appropriate, and the panel need not decide whether petitioner was a prevailing party, or whether there are special circumstances rendering an award unjust. View "Meza-Vazquez v. Garland" on Justia Law

Plaintiffs filed suit against the Oregon State Bar, alleging First Amendment violations arising from the Oregon State Bar's (OSB) requirement that lawyers must join and pay annual membership fees in order to practice in Oregon. Specifically, plaintiffs contend that (1) the two statements from the April 2018 Bulletin are not germane; (2) compelling them to join and maintain membership in OSB violates their right to freedom of association; and (3) compelling plaintiffs to pay—without their prior, affirmative consent—annual membership fees to OSB violates their right to freedom of speech. Furthermore, the Crowe Plaintiffs alone contend that the Bar's constitutionally mandated procedural safeguards for objecting members are deficient, and the Gruber Plaintiffs alone continue to argue on appeal that OSB is not entitled to sovereign immunity from suit. The district court dismissed all of plaintiffs' claims.The Ninth Circuit agreed with the district court that precedent forecloses the free speech claim, but neither the Supreme Court nor this court has resolved the free association claim now before the panel. Even assuming both statements at issue were nongermane, the panel concluded that plaintiffs' free speech claim failed. As alleged, the panel also concluded that the OSB's refund process is sufficient to minimize potential infringement on its members' constitutional rights. However, the panel explained that plaintiffs may have stated a viable claim that Oregon's compulsory Bar membership requirement violates their First Amendment right of free association. On remand, the panel noted that there are a number of complicated issues that the district court will need to address. First, the district court will need to determine whether Janus v. Am. Fed'n of State, Cnty., & Mun. Emps., Council 31, 138 S. Ct. 2448, 2477, 2481 (2018), supplies the appropriate standard for plaintiffs' free association claim and, if so, whether OSB can satisfy its "exacting scrutiny standard." Given that the panel has never addressed such a broad free association claim, the district court will also likely need to determine whether Keller v. State Bar of California's, 496 U.S. 1, 13–14 (1990), instructions with regards to germaneness and procedurally adequate safeguards are even relevant to the free association inquiry. Finally, the panel concluded that the district court erred by determining that OSB was an arm of the state entitled to Eleventh Amendment immunity. Accordingly, the panel affirmed in part, reversed in part, and remanded to the district court with instructions. View "Crowe v. Oregon State Bar" on Justia Law

On remand from the Supreme Court, the Ninth Circuit reaffirmed the district court's order granting CFPB's petition to enforce the law firm's compliance with the Bureau's civil investigative demand (CID) requiring the firm to produce documents and answer interrogatories. The Supreme Court held that the statute establishing the CFPB violated the Constitution's separation of powers by placing leadership of the agency in the hands of a single Director who could be removed only for cause. The Court concluded, however, that the for-cause removal provision could be severed from the rest of the statute and thus did not require invalidation of the agency itself.The panel concluded that the CID was validly ratified, but the panel need not decide whether that occurred through the actions of Acting Director Mulvaney. After the Supreme Court's ruling, the CFPB's current Director expressly ratified the agency's earlier decisions to issue the civil investigative demand to the law firm, to deny the firm's request to modify or set aside the CID, and to file a petition requesting that the district court enforce the CID. The new Director knew that the President could remove her with or without cause, and nonetheless ratified the agency's issuance of the CID. Therefore, this ratification remedies any constitutional injury that the law firm may have suffered due to the manner in which the CFPB was originally structured. The panel explained that the law firm's only cognizable injury arose from the fact that the agency issued the CID and pursued its enforcement while headed by a Director who was improperly insulated from the President's removal authority. The panel concluded that any concerns that the law firm might have had about being subjected to investigation without adequate presidential oversight and control have now been resolved. The panel rejected the law firm's remaining contentions. View "Consumer Financial Protection Bureau v. Seila Law LLC" on Justia Law

In a class action lawsuit regarding faulty Whirlpool dishwashers, the Ninth Circuit affirmed the district court's approval of a class settlement, but vacated and remanded the $14.8 million attorney's fees award. The panel held that the Class Action Fairness Act's (CAFA) attorney's fee provisions apply to all federal class actions; the district court improperly used a lodestar-only method to calculate attorney's fees for the coupon portion of the settlement where that methodology potentially inflates the amount of attorney's fees in proportion to the results achieved for the class because the coupons may end up providing minimal benefit to the class; the district court erred in awarding a 1.68 lodestar multiplier; and the district court did not abuse its discretion in approving the settlement.On remand, the panel instructed the district court to apply a percentage-of-redemption value methodology for the coupon portion of a settlement, and use a lodestar method for the non-coupon part of the relief. In the alternative, the panel stated that the district court may use a lodestar-only methodology, but only if it does not consider the coupon relief or takes into account its redemption value. View "Chambers v. Whirlpool Corp." on Justia Law

The Ninth Circuit filed (1) an order amending its opinion and denying on behalf of the court a petition for rehearing en banc, and (2) an amended opinion dismissing as untimely plaintiff's appeal from the district court's judgment and affirming the district court's post-judgment denial of attorneys' fees in an action under the Lanham Act.Under Federal Rule of Appellate Procedure 4(a)(1)(A), a notice of appeal must be filed within 30 days after entry of the judgment or order appealed from. In this case, because appellant did not file a notice of appeal within 30 days of the district court's judgment or obtain a Rule 58(e) order extending the time to appeal, the notice of appeal was untimely as to the district court's underlying judgment. However, the panel held that the notice of appeal was timely as to the district court's later order denying attorneys' fees. Finally, the district court did not abuse its discretion in denying fees. View "Nutrition Distribution LLC v. IronMags Labs, LLC" on Justia Law

The Ninth Circuit previously reversed, in part, bankruptcy appellate panel decisions. The court subsequently denied the debtors’ applications, as prevailing parties, for attorney fees under the Equal Access to Justice Act, 28 U.S.C. 2412(d). The EAJA did not authorize attorney fees because a bankruptcy court does not fall within the EAJA’s definition of “United States,” and uncontested Chapter 13 bankruptcy cases are not “civil actions brought by or against the United States.” The EAJA is a limited waiver of the government’s sovereign immunity; it must be strictly construed in favor of maintaining immunity not specifically and clearly waived. View "In re: Sisk" on Justia Law

Nutrition Distribution filed suit against IronMags, alleging that the company violated the Lanham Act by falsely advertising IronMag's nutritional supplements. After the district court entered judgment, Nutrition Distribution did not file a notice of appeal but, instead, filed a post-judgment motion for attorneys' fees under Federal Rule of Civil Procedure 54(d) and then filed a notice of appeal 30 days after the district court denied that fees motion.The Ninth Circuit held that, because Nutrition Distribution did not file a notice of appeal within 30 days of the district court's judgment or obtain a Rule 58(e) order extending the time to appeal, the notice of appeal was untimely as to the district court's underlying judgment. The notice of appeal was timely as to the district court's later order denying attorneys' fees.The panel explained that the Federal Rules are clear that ordinarily, the entry of judgment may not be delayed, nor the time for appeal extended, in order to tax costs or award fees. Furthermore, a motion for attorneys' fees does not extend the time to appeal the underlying judgment unless the district court so orders under Rule 58(e). In this case, Nutrition Distribution did not seek such an order, nor did the district court enter one. The panel also held that Nutrition Distribution's attempt to now save its untimely appeal of the underlying judgment by recasting its fees motion as a Rule 59 motion to alter or amend the judgment likewise fails. The panel stated that the 1993 amendments to the Federal Rules and the Supreme Court precedent that gave rise to them make clear that attorneys' fees motions cannot be recharacterized as Rule 59 motions to extend the time to appeal an underlying judgment. Accordingly, the panel affirmed the denial of fees, and otherwise dismissed the appeal for lack of jurisdiction. View "Nutrition Distribution LLC v. IronMag Labs, LLC" on Justia Law

After Sanmina claimed a worthless stock deduction on its federal tax return, the IRS issued a summons for the memoranda authored by Sanmina in-house counsel. Sanmina objected on the basis that they were protected both by attorney-client privilege and the attorney work-product doctrine. On subsequent remand, the district court determined that the memoranda were covered by both attorney-client privilege and work-product protection, but that those privileges had been waived.The Ninth Circuit held that Sanmina waived the attorney-client privilege when it disclosed the Attorney Memos to DLA Piper. However, the panel held that such disclosure did not automatically waive work-product protection over the Attorney Memos and, rather, waiver of work-product immunity requires either disclosure to an adversary or conduct that is inconsistent with the maintenance of secrecy against its adversary. In this case, the panel held that Sanmina did not expressly waive work-product immunity merely by providing the Attorney Memos to DLA Piper, but its subsequent use of the DLA Piper Report to support its tax deduction in an audit by the IRS was inconsistent with the maintenance of secrecy against its adversary. Therefore, the panel explained that Sanmina's implied waiver of the work-product protection only extends to the factual portions of the Attorney Memos. The panel granted in part and denied in part the IRS's petition to enforce its summons. View "United States v. Sanmina Corp." on Justia Law

The Ninth Circuit certified to the New York Court of Appeals the following questions: 1) Whether a litigation financing agreement may qualify as a “loan” or a “cover for usury” where the obligation of repayment arises not only upon and from the client’s recovery of proceeds from such litigation but also upon and from the attorney’s fees the client’s lawyer may recover in unrelated litigation? 2) If so, what are the appropriate consequences, if any, for the obligor to the party who financed the litigation, under agreements that are so qualified? View "Fast Trak Investment Co., LLC v. Sax" on Justia Law