“…the frequency and breadth of the Ninth’s Circuit’s defeats (10 of 11 cases before the Supreme Court this term and 8 of 10 of these defeats were unanimous!!!) suggest that many of its 29 active judges are willfully ignoring precedent and law to do as they please…”, Wall Street Journal

“In my opinion, if you want to understand why California is losing businesses left and right, look no further than the Ninth Circuit Court of Appeals. In one of my cases, the FDIC sued me civilly in California for ordinary negligence. Even though we were a Delaware corporation, because we were headquartered in California and our business contracts were largely written under California law, a federal judge in California ruled that as an officer (under a California statute) I was not protected by the Business Judgment Rule and could be sued for ordinary negligence (see extensive discussion on this matter on my blog under the FDIC and BJR tabs). My attorneys asked the judge to certify this ruling so that we could appeal it to the Ninth Circuit, citing other inconsistent California rulings on this matter. He agreed and we appealed to the Ninth Circuit. The Ninth Circuit refused to hear this simple, yet very important matter until after trial!!! A matter that was not just important for me (a favorable ruling would have resulted in the immediate dismissal of the FDIC’s case and my avoiding years of litigation and millions of dollars in attorneys fees and other costs), but also for all California-domiciled businesses and the California economy. Consistently observing The Rule of Law is one of the main requirements of free, liberty-loving, democratic societies. And without The Rule of Law’s consistent observance, it is very hard to have a strong and vibrant economy. And yet the Ninth Circuit court doesn’t seem to care about observing The Rule of Law, nor in the timeliness of their actions. Are California corporate officers protected by the Business Judgment Rule or not? It’s ridiculous that in the largest state economy in the United States of America, businesses don’t have an answer to this simple question thanks to the Ninth Circuit Court of Appeals.”, Mike Perry, former Chairman and CEO, IndyMac Bank

 

REVIEW & OUTLOOK

The Biggest Judicial Losers

The liberal Ninth Circuit keeps racking up losses at the Supreme court.

June 12, 2014 7:27 p.m. ET

The Supreme Court is heading to the final days of its term, and so far the biggest loser is once again the Ninth Circuit Court of Appeals. The famously liberal appellate court has logged more reversals than any other circuit, having lost 10 of 11 cases.

For liberals who want to believe this is merely a case of conservative Justices overruling liberal rulings, look again. In its 11 cases the Ninth Circuit managed to draw a total of only 16 votes from the nine Justices. Eight of the 10 reversals were unanimous, and the decision to overturn the circuit was joined seven times by Justice Stephen Breyer, nine times by Justice Sonia Sotomayor and 10 times by Justices Elena Kagan and Ruth Bader Ginsburg.

The latest reversal came Thursday in Pom Wonderful v. Coca Cola , with an 8-0 ruling that the Ninth Circuit erred in accepting Coca-Cola’s argument that federal regulations precluded Pom’s claim it was harmed when Coke labelled a drink to highlight the presence of pomegranate juice. The ruling was “incorrect,” Justice Anthony Kennedy wrote of the Ninth Circuit. “There is no statutory text or established interpretive principle to support” the appellate court’s contention. “Quite to the contrary.”

Two of this term’s Ninth Circuit reversals were jurisdiction cases, concerning the Constitution’s Due Process Clause and the restraints it puts on forum shopping by plaintiffs attorneys. In Daimler AG v. Bauman, Justice Ginsburg rebuked the Ninth Circuit’s view that California “is a place where Daimler may be sued on any and all claims against it, wherever in the world the claims may arise.” “That formulation,” she added, “is unacceptably grasping.”

The Supreme Court tends to take cases it feels may have been wrongly decided, and other circuits have also had decisions reversed. There are also times when the Justices overrule an appeals court and get it wrong— William Rehnquist’s 1988 opinion in Morrison v. Olson upholding the independent counsel statute comes to mind.

But the frequency and breadth of the Ninth’s Circuit’s defeats suggest that many of its 29 active judges are willfully ignoring precedent and law to do as they please. Maybe they should all have to do refresher terms as Supreme Court clerks.

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Posted on June 16, 2014, in Postings. Bookmark the permalink. Leave a comment.

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