Ninth Circuit

  • August 26, 2014
    Guest Post

    By Archis A. Parasharami, litigation partner at Mayer Brown, and James Tierney, litigation associate at Mayer Brown

    *This post originally appeared on Class Defense

    In the three years since AT&T Mobility LLC v. Concepcion, courts have largely been rejecting substantive attacks on arbitration agreements that waive class actions. By contrast, in some cases plaintiffs have succeeded in avoiding arbitration by arguing that they never agreed to it in the first place.

    The latest case to address such questions of contract formation comes from the Ninth Circuit, which held last week in Nguyen v. Barnes & Noble, Inc. that  plaintiff Kevin Nguyen had not agreed to arbitration because he and similarly situated consumers lacked sufficient notice of the company’s online “browsewrap” terms of use. Because the Ninth Circuit applied New York law governing contract formation—and because the court indicated that it would have come to the same conclusion under California law—the decision is an important one for all businesses that engage in online commerce in the United States.

    In the opinion, the Ninth Circuit distinguished between the familiar “clickwrap” process—in which a user affirmatively accepts terms by, for example, clicking “I agree” after receiving notice of the terms—and “browsewrap,” in which a company makes the relevant terms available to users on the web site (usually by providing a hyperlink), but does not require a customer to record his or her assent to the terms.

    In Nguyen, each page on Barnes and Noble’s web site included a link to the applicable terms of use. If followed, the link would direct a user to the terms, which provided that a user accepts the terms by “visiting any area in the Barnes & Noble.com Site, creating an account, [or] making a purchase.” The terms, among other things, provided that parties would resolve their disputes by arbitration on an individual basis.

  • June 4, 2012
    Guest Post

    By Mae Kuykendall, Professor of Law, Michigan State University, and Director of the Legal E-Marriage Project


    The prospects for the Supreme Court to issue a ruling affecting the marriage rights of same-sex couples seem to be accelerating. At the forefront are three distinct contexts for litigation: whether states can be required to authorize same-sex marriage, whether the federal government can deny state-created same-sex marriages federal recognition, and whether states can be required to recognize valid same-sex marriages performed in other states. Two U.S. circuit courts, the Ninth and the First, have issued opinions that treat with skepticism the governmental interest in blocking gay marriage. Both Courts proceeded with the caution required by Circuit Courts, which must follow Supreme Court precedent. For that reason, both courts avoided ruling that same-sex marriage is a fundamental right, and also avoided holding that gay men or lesbians are entitled to special judicial solicitude to protect them from unfavorable legislation.

    The Ninth Circuit’s conclusion limited the ability of a state to authorize a legal status with rights just like marriage, but withhold the word marriage. The Court reasoned that stripping away the word “marriage,” while leaving the rights intact, has no purpose except inflicting second-class status on gay couples.

    In addressing the state’s obligations to authorize marriages of residents, the California case has no direct concern with federalism. The primary concern is the local marriage law of California.

    In the First Circuit opinion, there is a subtle yet powerful convergence of federalism principles and equality principles. The First Circuit held unconstitutional a provision of federal law, Section 3 of the Defense of Marriage Act (DOMA), which defines the word marriage, for all purposes of the U.S. code, as the union of one man and one woman. Significantly, the First Circuit held that the law violated both federalism rules and principles of equality.

  • February 22, 2012

    by Jeremy Leaming

    Though leaders of the Maryland Senate have delayed consideration of Gov. Martin O’Malley’s marriage equality bill, The Washington Post reports the measure is still expected to pass the chamber and reach the governor by week’s end.

    The Senate’s Minority Whip Edward R. Reilly (R-Anne Arundel), the newspaper reports, obtained the delay so amendments to the equality measure could be prepared. Senate President Thomas Miller Jr. said he expects the measure to pass the Senate, as it did last year.

    O’Malley (pictured) is pushing hard to add Maryland to the list of states that have legalized same-sex marriage. Following last week’s approval of the measure by the Maryland House of Delegates, the governor said “we’re prepared to redouble our efforts” as the Senate considers the measure.

    “The common thread,” he continued, “running through our efforts together in Maryland is the thread of human dignity; the dignity of work, the dignity of faith, the dignity of family, the dignity of every individual.”

    As in Washington, where Gov. Chris Gregoire recently enacted marriage equality legislation, Christian evangelical lobbyists in Maryland are vowing to drag marriage equality before voters, if need be.

    The Maryland Marriage Alliance, representing a gaggle of Christian evangelical interests, is loudly arguing that marriage must remain exclusive to men and women. In a missive on the group’s website, it claims that houses of worship that refuse to conduct weddings for gays and lesbians will place their tax benefits in jeopardy. Maryland’s equality bill, however, contains and exemption for houses of worship, much like the one that passed last year in New York. The Md. bill explicitly states that houses of worship, which receive generous government tax benefits, can play be different rules, and discriminate against gays and lesbians if they wish.

  • February 20, 2012

    by Jeremy Leaming

    While some lawmakers and politicians are working to end a few of the nation’s inequalities, like the one centering on the right of gays and lesbians to wed, others are keeping up the ignoble work of trying to hobble or defeat efforts to advance equality.

    For example, in many of the states where marriage equality is advancing, special interest groups have mounted, or in the midst of doing so, campaigns to ensure that government recognition of marriage belongs exclusively to men and women.

    After Washington Gov. Chris Gregoire enacted marriage equality legislation, social conservatives promised to gather enough signatures to place the newly gained civil liberty before the voters. N.J. Gov. Chris Christie has endorsed placing civil liberties before the voters when he vetoed a bill allowing lesbians and gays to wed. (Newark, N.J. Mayor Cory Booker took issue with Christie’s tactic, saying equal rights should never be placed before the whims of the majority.)

    Religious right groups are also promising to topple the effort by Maryland to allow same-sex marriage. The Maryland Marriage Alliance, which calls itself a an “interfaith coalition dedicated” to keeping marriage an exclusive institution, has promised to launch a petition movement to place the law before voters, provided it passes the Maryland Senate and is signed by Gov. Martin O’Malley, both highly likely. The Maryland Senate passed a similar measure last year, and O’Malley (pictured) has said he would sign the new measure. The governor has also upped his involvement this time around – he’s sponsoring the equality legislation that is moving through the legislature.

    Following the approval last week by the Md. House of Delegates, O’Malley applauded the outcome, saying the chamber had “voted for human dignity.”

    The marriage alliance, a gathering of primarily evangelical Christian groups, issued a press statement decrying the House’s vote as undermining the exclusive definition of marriage and noting, “thankfully,” that the state “allows for a referendum process by a people’s vote, and we are committed, if needed, to bring this issue to the vote of the people of Maryland.”

    Like the law enacted last year in New York, the Maryland marriage equality measure includes a provision granting an exemption for houses of worship to refuse to marry lesbians and gays. The Maryland Senate is expected, The Washington Post reports, to promptly take up the equality bill. The newspaper says the senate’s Judicial Proceedings Committee and the full chamber “quickly could approve the bill” with the possibility of sending it to O’Malley by week’s end. The state is moving quickly to become the eighth one to allow lesbians and gays to wed, joining Washington, New York, Massachusetts, Connecticut, New Hampshire, Vermont, and Iowa. The District of Columbia also recognizes same-sex marriage.

  • September 23, 2011

    President Obama is continuing his effort to diversify the federal bench with his nomination of U.S. District Court Judge Jacqueline H. Nguyen to the U.S. Court of Appeals for the Ninth Circuit. If confirmed, Nguyen would be the first Asian Pacific American woman to sit on a federal appeals court, according to a statement from the National Asian Pacific American Bar Association.  Nguyen has already made history; when she joined the district court, she was the first Vietnamese-American to serve as a federal district court judge.

    Nguyen came to the U.S. as a young girl, after she and her family fled Vietnam toward the end of the Vietnam War. She lived in a tent city for over a month before settling in the Los Angeles area. In her application for her district court seat, Nguyen wrote, “I nevertheless feel incredibly fortunate because those early years gave me invaluable life lessons that have shaped who I am today,” Sen. Dianne Feinstein recounted in a statement.

    Nguyen would fill one of four vacancies on the Ninth Circuit, three of which are considered judicial emergencies. California Supreme Court Justice Goodwin Liu, also Asian Pacific American, would have filled one of these seats, but his nomination was filibustered in the Senate.

    Also this week: