[Venue roulette, a sham affidavit, and uninspected bloomin’ onions.] Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice. New on the Short Circuit podcast: Saddle up for a ride into the Tenth Circuit hills with a parking lot full of Broncos fans and a new legal doctrine called Biven's cat. Army forensic examiner's now-ex-wife files report alleging sexual assault with his employer. Following an investigation, he's told it doesn't look good, so he quits. The next month, he submits an application for a position with the Department of the Treasury that, some might say, obfuscates his reasons for leaving his previous employment. He's hired, but things go from bad (fired) to worse (convicted of wire fraud). D.C. Circuit: Conviction overturned. His lies didn't deprive the Treasury of the benefit of the employment bargain, so he never defrauded the…

This is a FOSTA case. It reached the 9th Circuit on personal jurisdiction grounds. The 9th Circuit held that some foreign defendants were subject to jurisdiction. On remand, the court dismisses the remaining defendants primarily due to Section 230, with leave to amend. The court summarizes the facts: Plaintiff alleges she was trafficked as a minor and her traffickers filmed her while she was engaged in sex acts. They then uploaded the videos (“Videos”) to adult websites operated by two of the defendants, i.e., WebGroup Czech Republic, a.s. (“WGCZ”) and NKL Associates, s.r.o. (“NKL”). The opinion focuses on the Section 230 defense: ICS Provider. “WGCZ and NKL provide an interactive computer service because they run a website.” Publisher/Speaker Claims. After an extended review of Barnes, Roommates, and Lemmon, the court discusses two arguments: * Possession. “insofar as Plaintiff seeks to hold Defendants liable for…

Co-published with Tech Policy Press. After the US Supreme Court punted, just last month, on First Amendment questions concerning how U.S. law enforcement agencies should interact with social media companies, the Department of Justice is now days away from declassifying its operating procedures for handling such matters. That outcome is the result of a multi-year investigation by the Department’s Office of Inspector General (OIG), which released a report earlier this week. Background In late June, the Supreme Court ruled in favor of the Biden administration in Murthy v Missouri, a case that concerned whether the federal government violated the First Amendment rights of citizens by allegedly coordinating with social media platforms to remove disfavored speech. In a 6-3 ruling, the Supreme Court reversed the decision by the Fifth Circuit, finding that the plaintiffs did not have standing to bring the case, since the evidence failed to connect any specific moderation decision…

A tenured physical education educator [Petitioner] appealed certain actions by the Board of Education [Respondent] and its Superintendent [collectively “Respondents”] involving the Respondent’s Policy 4810, “Teaching About Controversial Issues”.* In response to a formal complaint against Petitioner submitted by a student alleging Petitioner made derogatory remarks to students in violation of the Dignity for All Students Act (“Dignity Act”), Respondents commenced a Dignity Act investigation and placed Petitioner on paid administrative leave. Petitioner met with district representatives and responded to the allegations against him. Immediately following this meeting, Respondents: 1. Restored Petitioner from paid administrative leave; and 2. Issued a counseling memorandum to Petitioner advising him that "the investigation had concluded" and, “although a technical violation of [the Dignity Act] was not found'…

A tenured physical education educator [Petitioner] appealed certain actions by the Board of Education [Respondent] and its Superintendent [collectively “Respondents”] involving the Respondent’s Policy 4810, “Teaching About Controversial Issues”.* In response to a formal complaint against Petitioner submitted by a student alleging Petitioner made derogatory remarks to students in violation of the Dignity for All Students Act (“Dignity Act”), Respondents commenced a Dignity Act investigation and placed Petitioner on paid administrative leave. Petitioner met with district representatives and responded to the allegations against him. Immediately following this meeting, Respondents: 1. Restored Petitioner from paid administrative leave; and 2. Issued a counseling memorandum to Petitioner advising him that "the investigation had concluded" and, “although a technical violation of [the Dignity Act] was not found'…

Ann Southworth, Big Money Unleashed: The Campaign to Deregulate Election Spending (2023). Scott Cummings Ann Southworth is a pioneering scholar of the conservative legal movement. Her 2008 book, Lawyers of the Right: Professionalizing the Conservative Coalition, offered path-breaking insights into the evolution of the movement, charting its origins, features, and fractures. Her new book, Big Money Unleashed: The Campaign to Deregulate Election Spending, is a worthy—and timely—successor that explores one facet of what the movement has achieved. In it, Southworth examines the decades-long legal campaign to transform the First Amendment into a vehicle to enable unfettered corporate influence in politics. This campaign culminated in the 2010 Supreme Court case, Citizens United v. FEC, which gave corporations the right to spend unlimited amounts on candidates for political office, overruling precedent to strike down a critical provision of the Bipartisan Campaign…

This lawsuit involves competitors in the “star registry” niche . The incumbent is the International Star Registry of Illinois. The challenger is RGIFTS. The incumbent doesn’t like the competition and is clinging to its very descriptive trademarks to try to shut down the challenger. The court discusses the Google Knowledge Panel, which bore “the name of RGIFTS that describes its services as backed by the ‘International Star Registry.” The court credits RGIFTS’ claims that it had no involvement in creating Google’s Knowledge Panel. For more on how intermediaries construct consumer associations that may have trademark infringement implications, see my Brand Spillovers paper. The court also discusses RGIFTS’ keyword ad purchases in Google and Bing. The court credited RGIFTS’ claim that the ads are showing up on the incumbent’s purported trademarks due to “keyword insertion,” i.e., the search engines are…

Plaintiff's attorneys get a big win here, and secure the Court of Appeal's reversal of the trial court's grant of an anti-SLAPP motion in favor of the defendant. That's fairly huge, and, typically, would be the basis for undiluted celebration.But the Court of Appeal's opinion concludes with a separate section that chastises the winning lawyers -- from Frost LLP in Los Angeles -- for their "incivility" and their appellate briefs' use of "inappropriately harsh terms to launch needless and unsubstantiated attacks on the decisions made by the trial judge, as well as against the opposing party and its lawyers."The lawyers at Frost luckily get off without being sanctioned -- and, again, they win the appeal on the merits -- with only a concluding warning from the Court of Appeal that "Appellant’s counsel would be well advised to refrain from incivility in the future."Which is definitely a suggestion best taken to heart.…

[“The article also documents Plaintiff’s four failed attempts at appearing on the Real Housewives of New York, and the potentially circumstantial evidence that the fire was used as a publicity stunt as it occurred just one day prior to Plaintiff joining a talk show wherein she talked extensively about the fire.”] From Abitbol v. Rice, decided Monday by N.Y. trial court judge Mary Rosado; nothing special about the legal analysis, but with facts like these, how could I pass them up? This action arises out of a fire and ensuing water damage at the condominium at 10 West End Avenue, New York, NY 10023 (the "Building"). Plaintiff resided in Apartment #14B in the Building and Defendant lived in Unit 12G. The morning of November 6, 2019, Plaintiff lit a candle to "cleanse energy and heal her Chakras." Plaintiff alleges she blew out the candle and took her son to school. Nonetheless, a fire somehow ignited, and the fire sprinkler systems were…

2024 New Florida Condo Law: Analysis of the Condo rights bill (HB 1021) Signed by Governor DeSantis and effective on July 1, 2024 The 2024 Condo Rights Bill (HB 1021), now being commonly referred to as the “DeSantis Condo Law,” “Condo 3.0,” and the “New Condo Law,” introduces significant amendments to the statutory framework governing community associations in Florida. These changes affect the behavior and responsibilities of condominium associations and board members, as well as the rights of unit owners. This article provides a detailed summary of the major amendments directly impacting condo owners and includes a list of all statute amendments in the bill. The full text of the bill can be found at the following link: HB 1021 Full Text. About Perez Mayoral, P.A. At Perez Mayoral, P.A., we focus on representing homeowners against condominium associations and homeowners associations in both pre-litigation disputes and active litigation.…

What a pain for Eugene.The last name "Volokh" is sufficiently unique that I assumed it was him when I saw the title of the case, a conclusion that was reaffirmed when I read the caption and then the opinion. It's another lawsuit (actually a series of petitions) brought by a pro se litigant against a law professor author that ends the right way -- dismissal -- but with the predictable hassle and expense for the defendant, who did nothing wrong.So, as you might imagine, I'm sympathetic to his plight.Xingfei Luo -- also known as Olivia Luo -- files various lawsuits anonymously (under a pseudonym), and Professor Volokh writes about anonymous litigation both on his blog -- the Volokh Conspiracy -- and in traditional law review articles. Professor Volokh's writing discussed, among other cases, those filed by Ms. Luo, identifying her by name. Ms. Luo didn't like that, so filed multiple requests for restraining orders against Professor Volokh, meritlessly…

The well known Canadian media lawyer Ryder Gilliland has produced a comprehensive report analysing 37 decisions on anti-SLAPP motions in 2023 in the courts of Ontario and British Columbia.  His goal is to provide insight into how motions under anti-SLAPP legislation in Ontario and British Columbia are being adjudicated. The report examines macro trends (such as the number of successful anti-SLAPP motions), as well as micro trends (such as which elements of the statutory test are most often met). Anti-SLAPP motions in Ontario are governed by the s.137 of Courts of Justice Act, RSO 1990 (“CJA”) and, in British Columbia by the Protection of Public Participation Act, SBC 2019, c 3 (“PPPA”). The report shows that 56% of anti-SLAPP motions decided in 2023 were successful, thus resulting in the dismissal of the underlying action. In 84% of cases the applicant was able to establish that the expression was related to a matter of public interest. …

After a lengthy legal challenge that began back in 2021, the California Supreme Court recently ruled that Proposition 22 is constitutional — a significant decision ensuring that thousands of workers continue to have access to flexible options for earning income. The ruling will also help reduce costly litigation on determining independent contractor status under California law. Back in 2020, California voters approved Proposition 22, which specifically classified certain app-based rideshare and delivery drivers as independent contractors and mandated that those companies provide certain benefits, including guaranteeing at least 120 percent minimum wage during engaged time, payment per mile, health care coverage for those who work a certain number of hours and the development of anti-harassment policies. Previously, classifying app-based drivers was uncertain and subject to costly litigation under California’s ABC test for distinguishing between an employee…

Social media platforms, at least in their most common form, have a First Amendment right to curate the third-party speech they select for and recommend to their users, and the government’s ability to manipulate those processes is extremely limited, the U.S. Supreme Court stated in its landmark decision in Moody v. NetChoice and NetChoice v. Paxton, which were decided together.  The cases dealt with Florida and Texas laws that each limited the ability of online services to block, deamplify, or otherwise negatively moderate certain user speech.   Yet the Supreme Court did not strike down either law—instead it sent both cases back to the lower courts to determine whether each law could be wholly invalidated rather than challenged only with respect to specific applications of each law to specific functions.  The Supreme Court also made it clear that laws that do not target the editorial process, such as competition laws, would not be subject to the…

Mojave Pistachio, LLC v. Superior Court (2024) 99 Cal.App.5th 605. In Mojave Pistachio, LLC v. Superior Court (2024) 99 Cal.App.5th 605, the Fourth District Court of Appeal held that the “pay first, litigate later” rule applies to fees imposed by a local groundwater sustainability agency under the Sustainable Groundwater Management Act (“SGMA”). (Wat. Code, § 10720 et seq.) This is the first case to determine such issue. As a result of the court’s decision, water users must pay the outstanding amounts owed before bringing a legal challenge against a groundwater sustainability agency for imposition of the fee, even if the challenged fee allegedly violates SGMA and California water law, and even if the water users allegedly cannot afford to pay the fee.  Legal Background Mojave Pistachio, LLC (“Mojave”) irrigates a pistachio orchard in the Mojave Desert it owns with groundwater exclusively…

Yesterday, the United States Supreme Court held that when the Securities and Exchange Commission seeks civil penalties against a defendant for securities fraud, the Seventh Amendment to the U.S. Constitution entitles the defendant to a jury trial.  S.E.C. v. Jarkesy, 2024 WL 3187811 (June 27, 2024).    The California Corporate Securities Law of 1968 authorizes the Commissioner of Financial Protection & Innovation, after notice and opportunity for hearing to levy administrative penalties for willful violations of the CSL, the Commissioner's rules, or the Commissioner's orders.  Cal. Corp. Code § 25252.   This authority is separate from the Commissioner's authority to seek penalties in a civil action pursuant to Section 25535. At first pass, it would seem that Jarkesy will have no impact on the Commissioner's authority to levy penalties under the CSL because the Supreme Court has held that the Seventh…

There's an old saying that "Pigs get fat; hogs get slaughtered." Here's yet another appellate equivalent of that maxim.Some anti-tax folks want to make it harder for the Legislature (or pretty much anyone) to raise taxes or fees on anything, so circulate an initiative to do exactly that -- the Taxpayer Protection and Government Accountability Act (the TPA). The initiative would amend the California Constitution to require that basically any new taxes or fees obtain both a two-thirds vote in both houses of the Legislature as well as approval by the voters in a referendum. The TPA contains a plethora of other provisions as well, all designed to cover pretty much any possible way a statute (or law, or regulation, or municipal act, or whatever) could raise revenue or impose costs. They get more than enough signatures on the initiative proposal, so it's scheduled to go to the voters in November.But the California Supreme Court, in a rare pre-election…

Law360 has Blistering Dissents Belie Justices' Penchant For Consensus here:Thirteen days into June, the U.S. Supreme Court had recorded one of the highest rates of unanimous decisions in the past four decades. But the era of historic consensus was tarnished a bit Friday when the court issued three split decisions and two scathing dissents highlighting how much the nine justices differ.Closer to home:The conference on the California Supreme Court, presented by Berkeley Law’s California Constitution Center and its partners, will be held on Friday, November 8, 2024. This all-day event will feature conversations with current and former justices of the California Supreme Court and the Court of Appeal, and scholars of state courts and constitutions. MCLE credit approval will be requested. Ticketing and other details will be released soon.