[California is appealing the injunction against its “Not Unsafe” Handgun Act.] California's Unsafe Handgun Act effectively bans the sale of almost all semiautomatic pistols that were designed beginning in 2007, and all such pistols introduced in 2013 and thereafter.  As explained in a previous post, in March, U.S. District Judge Cormac J. Carney of the Central District of California issued a preliminary injunction in Boland v. Bonta against enforcement the law.  The Ninth Circuit stayed the injunction pending appeal. Along with co-counsel Dan Peterson, I filed an amici curiae brief in support of the plaintiffs on behalf of law enforcement and firearms rights groups.  I'd like to share our major points.  First, some background. California bans pistols with  designs introduced in 2007 and thereafter based on two features that the state requires but that consumers don't want or need.  One is a magazine disconnect mechanism…

From Judge Barbara Jacobs Rothstein's opinion yesterday in Olympus Spa v. Armstrong (W.D. Wash.): The Olympus Spa is a Korean spa "specifically designed for women," and the services offered there "are closely tied to the Korean tradition," meaning patrons are "require[d] … to be naked" during certain services. The facilities include "a bath area containing multiple whirl-pools, a traditional Korean body-scrub service area, standing showers, sit-down showers, a steam room, and a dry sauna." As noted, patrons are "typically fully naked" while utilizing these areas and thus "have visual access" to other nude patrons. Nor is nudity optional. It is allegedly "required for certain procedures called 'Seshin'" pursuant to Korean tradition. According to Plaintiffs, female patrons receiving a Korean body scrub "must do so unclothed," and all employees who provide those scrubs…

In May 2023, the Law Library added the following new titles to the collection to support the research and curricular needs of our faculty and students. ADMINISTRATIVE LAW 1. Adrian Vermeule, Law’s Abnegation:  From Law’s Empire to the Administrative State (2016). BUSINESS ORGANIZATIONS 2. Douglas G. Baird, The Unwritten Law of Corporate Reorganizations (2022). 3. Aaron Dhir, Challenging Boardroom Homogeneity:  Corporate Law, Governance, and Diversity (2015). CIVIL RIGHTS, GENERALLY 4. Lorraine K. Bannai, Enduring Conviction:  Fred Korematsu and His Quest for Justice (2015). 5. James E. Fleming, Constructing Basic Liberties:  A Defense of Substantive Due Process (2022). COMPARATIVE AND FOREIGN LAW 6. David S. Clark, American Comparative Law:  A History (2022). CONSTITUTIONAL LAW, GENERALLY 7. Erwin Chemerinsky, Worse than Nothing:  The Dangerous Fallacy of Originalism (2022). 8. Kermit Roosevelt…

 Enigma Software Grp. USA, LLC v. Malwarebytes, Inc., No. 21-16466 (9th Cir. Jun. 2, 2023) Courts generally seem more likely to find falsifiability instead of puffery when a speaker makes negative claims about rivals rather than positive claims about itself. Enigma sued its competitor Malwarebytes for Lanham Act false advertising and NY business torts for designating its products as “malicious,” “threats,” and “potentially unwanted programs” (PUPs). The district court dismissed the complaint on the grounds that these designations were “non-actionable statements of opinion.” Over a dissent, the court of appeals reverses, except as to “PUP.” “[W]hen a company in the computer security business describes a competitor’s software as ‘malicious’ and a ‘threat’ to a customer’s computer, that is more a statement of objective fact than a non-actionable opinion.” This also…

Nine California Chamber of Commerce job killer bills and two job creator bills remain after Friday’s deadline for bills to pass their house of origin in the California Legislature. The following employment-related job killer bills remain active: AB 524 (Wicks; D-Oakland): Expansion of Litigation Under FEHA. Exposes employers to costly litigation under the Fair Employment and Housing Act (FEHA) by asserting that any adverse employment action was in relation to the employee’s family caregiver status, which is broadly defined to include any employee who contributes to the care of any person of their choosing, and creates a de facto accommodation requirement that will burden small businesses.AB 647 (Holden; D-Pasadena): Grocery Workers. Significantly expands statute related to successor grocery employers, including disrupting ability for independent small stores to join together, expands number of workers covered under the law…

Criminal records can have a devastating impact on access to life-affirming resources such as housing and employment. To address this issue, Massachusetts has steadily passed legislation that has made it easier for people to seal their records. My colleague has previously written about CORI reform law, including the 2018 legislation, and the Supreme Judicial Court (SJC) decision in Commonwealth v. Pon, which made it easier for people to seal their criminal records under M.G.L. c. 276, § 100C by laying out six factors for judges to evaluate whether there is “good cause” to seal the criminal records as discussed in our previous blog post. Most recently, in Commonwealth v. JF, the SJC further strengthened defendants’ abilities to seal their records. The SJC held that M.G.L. c. 276, § 100C requires sealing records where a court or jury found the defendant not guilty, a grand jury returned a no bill, or a jury found no probable cause. The Court further…

Today's opinion is the latest installment of the controversy about changing the name of the "Hastings College of Law" to the "College of Law, San Francisco" on the grounds that S.C. Hastings -- the person who paid for and founded the law school -- did some really, really bad things.I have a decent amount of familiarity with the quality of the briefs generally submitted by the competing law firms that represent the parties in this appeal. Defendants (the law school) are represented by Gibson Dunn. Plaintiffs (the people who want the old name) are represented by the Harmeet Dhillon Law Group.One of those firms is much smarter -- and writes much, much better briefs -- than the other.That said, here, the worse law firm is in the right -- and wins -- and the better law firm is in the wrong and loses.Reasonable minds might perhaps differ on whether it's permissible for the law school to change its name given the underlying circumstances and contractual…

From Peterson v. Harris, decided Friday by the California Court of Appeal, in an opinion by L.A. Superior Court Judge Audra Mori, joined by Justice Audrey Collins and L.A. Superior Court Judge Helen Zukin: In January 2021, plaintiff Sabrina Peterson posted a video and messages to her Instagram account accusing defendants Clifford and Tameka Harris (entertainers who perform under the stage names "TI" and "Tiny") of various forms of sexual and physical abuse. Peterson also accused Clifford of previously threatening her with a handgun. Clifford, Tameka, and Tameka's friend, codefendant Shekinah Jones Anderson, responded to Peterson through their social media accounts. Peterson sued for libel, false light, and intentional infliction of emotional distress (among other torts); the Harrises filed an anti-SLAPP motion, but the Court of Appeal concluded that Peterson's claim can go forward. First, Peterson's factual allegations: Peterson is an…

The Easter Legal Term ended on Friday 26 May 2023. The Trinity term will begin on 6 June and will end  on 31 July 2023.  The forthcoming week is the short, Whitsun, vacation during which the High Court and the Court of Appeal will be hearing only “vacation business”. On 26 May 2023 the managing judge, Fancourt J, handed down judgment in the case of Grant v News Group Newspapers Ltd (Re Mobile Telephone Voicemail Interception Ligitation) [2023] EWHC 1273 (Ch)  The judge dismissed the Sun’s application for summary judgment in relation to illegal information gathering but allowed the application in relation to the phone hacking parts of the claim on “limitation” grounds.  The judgment was widely reported in the media, including on the BBC Website, the Guardian, and  Reuters (but not in the Sun, which preferred a story about the house used in filming “Notting Hill“) The trial in the managed Mirror Phone Hacking…

Virginia’s anti-SLAPP statute has received a lot of flak for supposedly not being strong enough to deter frivolous defamation actions designed to chill the exercise of First Amendment rights. A case decided last week down in Roanoke, however, demonstrates that just because fee awards are discretionary does not mean that fees won’t be awarded in appropriate circumstances. When a local family sued Black Lives Matter Franklin County and its Director, Bridgette Craighead, for statements she made about race relations in an ABC News segment, the court found the statements had nothing to do with the plaintiffs, were not defamatory, and were protected by the First Amendment. Because the case was utterly frivolous, the court awarded attorneys’ fees under the anti-SLAPP statute. In the case of Crystal Minnix v. Sinclair Television Group, the segment at issue was titled “Cops’ role in Jan. 6 attack divides Virginia town with ties to Confederacy.” The…

In Hansman v. Neufeld, the Supreme Court of Canada recognized a weighty public interest in protecting “counter-speech” by those who advocate for 2SLGBTQI+ equality. In doing so, the Court rendered a historic judgment that affirms the importance of protecting the dignity and equality of trans individuals under Canadian law. The Court also provided important guidance on the test to be applied in “anti-SLAPP” applications and the defence of “fair comment” in defamation actions.

The underlying lawsuit was filed May 20, 2003, and the Effect followed within a few weeks; Mike Masnick (Techdirt) has the details: Twenty years ago today, actress/singer Barbra Streisand sued photographer Kenneth Adelman for daring to photograph her coastal mansion as part of his (fascinating) project to photograph the entire west coast of the US from a helicopter to track erosion over time. In 2002 this was an incredibly ambitious project by Adelman. It was before we all had widespread access to satellite imagery, and before the web worked the way it does today. Adelman set up a pretty incredible website which is still up today in all its 2002-era glory (though he has, as was part of the original plan, updated it with more modern photographs over time). Either way, one of the thousands of photographs of the coastline include Barbara Streisand's compound: [Streisand's lawyers brought] five different claims, all variations on privacy or publicity…

Maria Rutenberg apparently found Trump’s tweets so meaningful that she sued Twitter for deplatforming Trump and subtracting that meaning from her life. Rutenberg can now scratch her Trump itch at Truth Social, plus Musk has invited Trump back to Twitter. Despite these developments, she pressed on with her litigation. The Ninth Circuit needed only 3 paragraphs to say NOPE. Her parallel state court litigation gets an equally chilly reception. The state appellate court treats this case as an easy Section 230 dismissal. Rutenberg seeks “to hold Twitter liable for ‘typical publisher conduct protected by section 230’—namely ‘deciding whether to publish, withdraw, postpone or alter content.'” Cites to Murphy v. Twitter; PragerU v. Google. Given that overarching goal, it doesn’t matter how Rutenberg frames the causes of action: Whether styled as a violation of the California Constitution’s guarantee of free speech and…

California limits the amount of interest that may be charged on loans and forbearances.  While that is the general rule, there are numerous statutory exemptions.  One of those exemptions can be found in California Corporations Code § 25118(b) which provides that the “purchasers or holders” of “[a]ny one or more evidences of indebtedness . . . shall be exempt from the usury provisions of the California Constitution if . . . [t]he evidences of indebtedness aggregate at the time of issuance at least three hundred thousand dollars ($300,000) in original face amount . . . ".   [Note that the statute includes several other requirements not discussed in this post.] In Social Life Network, Inc. v. LGH Investments, LLC,  2023 WL 3641791  (9th Cir. May 25, 2023), U.S. District Court Judge  M. James Lorenz concluded that the lender was exempt under Section 25118(b) because the borrower had received several loans from…

I have no problem with this 67-page opinion, which (among other things) holds that it was okay to receive the jury's verdict during the COVID-19 pandemic without the defendant being present when the defendant had COVID-19, was quarantined in jail, and wouldn't be out of quarantine and able to be transported to court for at least two weeks. That's a sufficient reason to depart from the requirement that the defendant be physically present at all stages of a trial, particularly when there's nothing that the defendant could have accomplished by being there at that point.I just want to add, however, that this result is okay (in my view) only if you're not a textualist. The California Constitution says very clearly that criminal defendants have the right to be "personally present" in court. Full stop. No exceptions. So if you think that unambiguous text is dispositive, there you have it. You have to be willing to be consistent, and suck up the…

A little over a year ago, I wrote that California Superior Court Judge Terry Green had found that AB 979 facially violates the Equal Protection Clause of the California Constitution,  Cal. Const. Art. I, § 7.  Crest v. Padilla, L.A. Super. Ct. Case No. Case No. 20STCV37513.  Now, United States District Court Judge John A. Mendez has ruled that AB 979 constitutes an unconstitutional racial quota in violation of the Equal Protection Clause and 42 U.S.C. § 1981.  Alliance for Fair Board Recruitment v. Weber, 2023 WL 3481146 (E.D. Cal., May 16, 2023).  Readers will recall that AB 979 purports to impose  minimum numbers of directors from underrepresented communities.   The Secretary of State has appealed Judge Green's decision in Crest v. Padilla on three bases: The plaintiffs lack standing under Section 526a of the California Code of Civil Procedure; There is no illegal spending on the part of the Secretary of State…

In the space below I offer some initial reactions to a bill that cleared the California Senate Judiciary Committee last month and that has been generating controversy, especially within parts of the South Asian community, in the Golden State. SB 403, introduced by state Senator Aisha Wahab (a Democrat representing parts of the San Francisco-Oakland-San Jose Bay Area), seeks to add “caste” to the list of prohibited bases on which individuals and entities in the State are prohibited from discriminating in such domains as public accommodations, housing, employment, and education. (If enacted, SB 403 would seem to be the first state-level law in the nation to prohibit discrimination on the basis of caste.) The list (of prohibited bases of discrimination) to which “caste” is to be added in various statutes already includes sex, gender, gender identity, gender expression, race, color, religious creed, ancestry, national origin, physical disability, mental…

[Meg Garvin, John Yoo, and I argue to the California Supreme Court that L.A. District Attorney George Gascon is not free to ignore the commands of California's Three Strikes Law.] Today law professors Meg Garvin, John Yoo, and I filed an application to file an amicus brief in the California Supreme Court. We seek to argue that L.A. District Attorney George Gascón cannot ignore the requirements of California's three strikes law. The California Court of Appeals previously granted a preliminary injunction in favor of this position. The case arises from the following facts: In December 2020, new district attorney Gascón adopted several "Special Directives" concerning sentencing, sentence enhancements, and resentencing that made significant changes to the policies of his predecessor. In essence, the Special Directives prohibited deputy district attorneys in most cases from alleging prior serious or violent felony convictions (commonly referred to as…