Legal News and Appellate Tips

Each week, TVA appellate attorney Tim Kowal reviews several recent decisions out of the appellate courts in California, and elsewhere, and reports about the ones that might help you get an edge in your cases and appeals.

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Tag: Federal Courts

Wesson Oil Class Settlement Reversed: 9th Cir. Holds Trial Court Abused Discretion in Assuming Post-Cert. Settlement Was Not Collusive

Class actions only very loosely resemble the practice of law as most attorneys know it. Yes, they involve plaintiffs suing defendants in court before a judge. But most of the class members don't even know they're in the case, and wouldn't know their attorney if he showed up at their doorstep delivering a settlement check (in this case, a check for about $0.15). Things are much different for their attorneys, however, as was the case in Briseño v. Henderson, --- F.3d ---- (9th Cir. June 1, 2021), who proposed to pocket millions from what the Ninth Circuit held to be a collusive settlement agreement in a false advertising case over cooking oil.

The new clarification Briseño provides is that the rule requiring close scrutiny of class settlements applies both pre-class certification and post-class certification.

An ancillary lesson from Briseño is, experts will say anything.

And the much less important but more entertaining lesson from Briseño is: Judge Lee really loves puns (such as: the attorneys suing Wesson here were "hoping to strike oil"); and pop-culture references to Star Wars and the Hamilton musical.

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Even the Devil Gets Ensnared in Appellate Procedure: Satanic Temple's Arguments Held Waived on Appeal

The Satanic Temple, miffed it was not selected to give the invocation at the local city council meeting, sued the City of Scottsdale for discrimination. The plaintiffs tried the case on an as-applied discrimination theory, and when they lost, moved for new findings under a facial discrimination theory.

Held: The new theory was waived because it was not raised in the pretrial statement. And it was not raised in the opening brief, either. The reviewing court will not be the Devil's advocate, either figuratively or literally.
The Satanic Temple's excerpts of record were also stricken because they failed to comply with the rules.

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Important Differences in Federal and State Appeals, with Cory Webster

Appellate attorney Cory Webster joins Jeff Lewis and Tim Kowal on episode 9 of the California Appellate Law Podcast to discuss the differences in handling state and federal appeals, including: pitfalls in failing to make crucial posttrial motions (FRCP 50); the vastly different approaches to oral arguments in federal court; and the impact of amicus briefing on the practice of appellate law.

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9th Cir. Reverses $1.8B Summary Judgment Against Discovery Abuser, Suggests District Court Impose Terminating Sanctions Instead

The Good News for Defendant: The Ninth Circuit reversed plaintiff's summary judgment on its breathtaking $1.8 billion Lanham Act claim.
The Bad News: In light of all defendant's discovery abuses, the Ninth Circuit wonders aloud whether the district court, when reconsidering the matter, might simply enter a default judgment against it on remand.

There is no duck blind in civil discovery: you don't get to take shots at the other side's evidence if they don't get to take shots at yours.

The concurrence concludes with this chilling suggestion: "I share the majority's opinion that the district court could consider entering discovery sanctions. See supra note 5. In my view, appropriate sanctions could even include a default judgment against Defendants-Appellants, if the district court deems it justified."

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9th Cir. Holds Appellate Issues Waived for Failure to Raise Them Both Before and After Submission to Jury

On the latest episode of the California Appellate Law Podcast (available Tuesday, Mar. 30 at www.CALPodcast.com), co-hosts Jeff Lewis and I discuss with guest Cory Webster the importance of Federal Rule of Civil Procedure 50, governing motions for judgment as a matter of law, which must be made both before submission to the jury and after judgment. If appellant could have raised an issue in a motion for judgment as a matter of law but failed to do so, that issue is waived on appeal.

The Ninth Circuit helpfully furnishes a recent example in Brown v. County of San Bernardino, 2021 WL 1054561 (9th Cir. Mar. 19, 2021). Brown appealed after her civil rights claim failed on grounds of qualified immunity. On appeal, she ran into several waiver and forfeiture issues.

While Brown was pro se, trial attorneys' job of persuading juries often leaves good appellate arguments underdeveloped until it is too late. In federal trial practice it is especially important to consult appellate counsel before and during trial.

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Strategic Dismissals to Expedite Appeal Are No Longer Appealable, Ninth Circuit Holds

We recently discussed strategic dismissals following devastating, but nonappealable, interlocutory orders to expedite an appeal in California state court.

But beware if you are in federal court: A recent Ninth Circuit decision in Langere v. Verizon Wireless Services , No. 19-55747 (9th Cir. Dec. 29, 2020) warns that federal Courts of Appeals may reject any such appeals as an attempt to manufacture appellate jurisdiction.

If you are developing a strategy after a devastating order before a final judgment has been entered, that is an excellent time to consult appellate counsel.

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Dismissal of Voluminous "Shotgun Complaint"​ Affirmed by 11th Circuit, Even Though Containing Some Valid Claims

"Shotgun pleading," the practice of overpleading a complaint with vague and irrelevant facts, and so annoying a lot of people who never did the plaintiff any harm, is prohibited in […]

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