Title VII Challenge to Female-Only Correctional Guard Policy Upheld, and Civil Procedure, Criminal, Employment and Intellectual Property Matters

Bluetooth SIG Inc. v. US, No. 08-35312, involved an action seeking a refund of income tax, penalties, additions, and interest paid for 2000-2002 under 28 U.S.C. section 1346(a) and I.R.C. section 7422.  The Ninth Circuit affirmed summary judgment for defendant, on the ground that plaintiff engaged in a business of the sort ordinarily engaged in for profit, and provided non-incidental services for particular members, and therefore was not entitled to the I.R.C. section 501(c)(6) exemption.

Breiner v. Nev. Dept. of Corrs., No. 09-15568, concerned an action challenging the State of Nevada's policy of hiring only female correctional lieutenants at a women's prison.  The Ninth Circuit reversed summary judgment for defendants, on the grounds that 1) Title VII protected the ability to pursue one's own career goals without being discriminated against on the basis of race or sex, even if others of the same race or sex were not subject to disadvantage; and 2) defendants did not show that "all or nearly all" men would tolerate sexual abuse by male guards, or that it is "impossible or highly impractical" to assess applicants individually for this qualification.

Couch v. Telescope Inc., No. 08-56357, involved defendants' appeal from the district court's order denying defendants' motion to dismiss plaintiffs' claim that defendants conducted an illegal lottery under California Penal Code section 319 and thereby violated California's unfair business practices law.  The court of appeals dismissed the appeal, on the ground that the district court expressly, and correctly, found that defendants had failed to demonstrate a substantial ground for difference of opinion.

Love v. Sanctuary Records Group, Ltd., No. 07-56008, concerned an action by former Beach Boys member Mike Love against former member Brian Wilson for trademark infringement based on the promotion campaign for Wilson's solo album.  The court of appeals affirmed the dismissal of the action on the ground that the Lanham Act and California's common law right of publicity did not apply extraterritorially to events occurring in Great Britain.

Small v. Operative Plasterers' & Cement Masons' Int'l. Assn., No. 08-56668, involved an action by a union against a contractor alleging violation of wage and hour laws and tortious interference with contract.  The Ninth Circuit affirmed the district court's injunction against state court proceedings pending a decision by the National Labor Relations Board, on the ground that, because any favorable resolution of the state lawsuits would directly conflict with the Board's section 10(k) determinations, under Local 32 and Bill Johnson's, the union's suits had an illegal objective.

Toyota Motor Sales, USA, Inc. v. Tabari, No. 07-55344, concerned a trademark infringement action by Toyota based on defendants' use on their website of copyrighted photography of Lexus vehicles and the circular "L Symbol Design mark."  The court of appeals vacated judgment for plaintiff, holding that 1) the district court's injunction was plainly overbroad because it prohibited domain names that on their face dispel any confusion as to sponsorship or endorsement; and 2) because there was no risk of confusion as to sponsorship or endorsement, plaintiffs' use of the Lexus mark was fair.

In US v. Brooks, No. 08-10301, the court of appeals affirmed defendants' convictions for child sex trafficking and interstate transportation of minors for purposes of prostitution, holding that 1) the considerable similarity between the police's observations and the victim's description was sufficient to lead a person of reasonable caution to conclude that defendant was one of the men who had brought the victims to and from California for purposes of prostitution; 2) a comparison of the elements of the two statutes at issue showed that the indictment was not multiplicitous; and 3) an officer's training and experience qualified her as an expert on the business of prostitution and the relationships between pimps and prostitutes.  However, the court vacated defendants' sentences on the ground that U.S.S.G. section 2G1.3(b)(1)(B)applied only to defendants who exploited a pre-existing parent-like position of authority that defendant simply did not possess.

In US v. Chavez, No. 09-50434, the court of appeals affirmed defendant's sentence of 15 months' incarceration for narcotics convictions, on the grounds that 1) the "parsimony clause" of 18 U.S.C. section 3553(a) did not set a separate statutory maximum for Sixth Amendment purposes; and 2) the sentencing judge reviewed the section 3553(a) factors and concluded that 15 months' imprisonment was sufficient but not greater than necessary.

In US v. Evans-Martinez, No. 09-10098, the court of appeals affirmed in part defendant's sentence for sexual abuse of a child, sexual exploitation of children, and witness tampering, on the grounds that the district court did not err when it granted the government's motion for a downward departure but failed to announce the extent of that departure and to calculate a new Guidelines sentencing range before it considered the 18 U.S.C. section 3553(a) sentencing factors and imposed an above-Guidelines sentence.  However, the court vacated in part on the ground that the district court erred when it used the mandatory minimum sentence for one count as the starting point for sentencing all counts.

Related Resources

• Full Text of Bluetooth SIG Inc. v. US, No. 08-35312
• Full Text of Breiner v. Nev. Dept. of Corrs., No. 09-15568
• Full Text of Couch v. Telescope Inc., No. 08-56357
• Full Text of Love v. Sanctuary Records Group, Ltd., No. 07-56008
• Full Text of Small v. Operative Plasterers' & Cement Masons' Int'l. Assn., No. 08-56668
• Full Text of Toyota Motor Sales, USA, Inc. v. Tabari, No. 07-55344
• Full Text of US v. Brooks, No. 08-10301
• Full Text of US v. Chavez, No. 09-50434
• Full Text of US v. Evans-Martinez, No. 09-10098