The California Appellate Law Podcast

Cory Webster on 9th Cir updates

July 04, 2023 Tim Kowal & Jeff Lewis Season 1 Episode 93
Cory Webster on 9th Cir updates
The California Appellate Law Podcast
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The California Appellate Law Podcast
Cory Webster on 9th Cir updates
Jul 04, 2023 Season 1 Episode 93
Tim Kowal & Jeff Lewis

9th Circuit expert Cory Webster joins us to discuss several recent decisions out of the 9th Circuit. On this episode, we discuss:

  • The Jack Daniels case: when binding precedent barred relief, Jack Daniels (and its savvy appellate team) moved for summary affirmance (you read that right) to get to the Supreme Court, which reversed in a unanimous decision.
  • The dormant-commerce-clause case in which the 9th Circuit—with unlikely help from Justice Thomas—upheld a California statute that could affect pork production nationally.
  • The Gap case, which demonstrates how the makeup of the 11-judge en banc pool drawn from the 29-judge circuit make a big difference.
  • the Slack Tech. v. Pirani case, where a visiting district judge cast the deciding vote that created a circuit split—and precipitated a Supreme Court reversal setting binding precedent.
  • When Judge Watford retired following a split decision, a petition for panel review is probably going to require filling the open slot on the panel—which could change the outcome.

Cory Webster’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at

Other items discussed in the episode:

Show Notes Transcript

9th Circuit expert Cory Webster joins us to discuss several recent decisions out of the 9th Circuit. On this episode, we discuss:

  • The Jack Daniels case: when binding precedent barred relief, Jack Daniels (and its savvy appellate team) moved for summary affirmance (you read that right) to get to the Supreme Court, which reversed in a unanimous decision.
  • The dormant-commerce-clause case in which the 9th Circuit—with unlikely help from Justice Thomas—upheld a California statute that could affect pork production nationally.
  • The Gap case, which demonstrates how the makeup of the 11-judge en banc pool drawn from the 29-judge circuit make a big difference.
  • the Slack Tech. v. Pirani case, where a visiting district judge cast the deciding vote that created a circuit split—and precipitated a Supreme Court reversal setting binding precedent.
  • When Judge Watford retired following a split decision, a petition for panel review is probably going to require filling the open slot on the panel—which could change the outcome.

Cory Webster’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at

Other items discussed in the episode:

Announcer  0:03 
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis.

Jeff Lewis  0:17 
Welcome, everyone. I am Jeff Lewis.

Tim Kowal  0:19 
And I'm Tim Kowal both Jeff and I are certified appellate specialists and as uncertified podcast hosts we try to bring our audience of trial and appellate attorneys some news and perspectives they can use in their practice. As always, we're most appreciative if you would recommend this podcast to a colleague if you find it useful.

Jeff Lewis  0:35 
And before we jump into this week's discussion, we want to thank case Tex for sponsoring our podcast. Casetext is a legal technology company that has developed AI back tools to help lawyers practice more efficiently since 2013. casetext relied on by 10,000 firms nationwide from solo practitioners to amlaw 200 firms and in house legal departments. In March 2023. Casetext launched co counsel, the world's first AI legal assistant, co counsel produces results lawyers can rely on for professional use all while maintaining security and privacy listeners of our podcast enjoy a special discount on casetext basic research at That's And as of June 2023, still not generating fake cases.

Tim Kowal  1:20 
Now, yeah, just give it time. All right, Jeff, as you know, on the California appellate law podcast, we focus we lean pretty heavily on state appellate court decisions. So we'd like to try to fill up that lacuna by bringing back onto the show Corey Webster, a Ninth Circuit appellate specialist, and have him fill us in on what we may have been missing over the past months coming out of the Ninth Circuit. Corey is an appellate attorney at Dykema where he works on appeals but also serves as embedded appellate counsel on trial teams. Quarry is actually where I learned the term embedded appellate counsel and I've been using it ever since. Gary's work focuses on both appeals and key trial motions in complex commercial litigation. Corey formerly worked as a Ninth Circuit clerk for Judge Consuelo Callahan and as a clerk in the United States District Court for the Central District of California. In January of 2023, Cory was appointed to the Ninth Circuit Advisory Committee, and many listeners of the podcast will know Corey from his ninth circuit updates on LinkedIn where he provides inside baseball on recent decisions and news coming out of the Ninth Circuit. Welcome back to the show, Cory, thanks for coming. Joining us.

Cory Webster  2:29 
Tim. And, Jeff, it's great to be back one minor clarification so I don't get in trouble. It's the rules committee that I was appointed to this January, which is perfect for, you know, a calendar like me.

Tim Kowal  2:40 
Perfect. All right. Thank you, Cory. All right. Well, you know, Jeff was itching to ask you about a recent victory that your team had Cory out of the Fourth District Court of Appeal in California, we're gonna get to the Ninth Circuit stuff. But you had a recent interesting published decision out of the California Court of Appeal and Perry versus Kia Motors. And Jeff, you want to ask Corey a little bit about that decision. That was a decision the holding related to 998 offers and held that in the face of consumer protection laws 998 still applied. So it was an important decision for practitioners to be aware of.

Jeff Lewis  3:13 
Yeah, sure. I had some questions. You won't go too deep in the weeds, because I know it's still an active case. But I noticed, Cory, that you were embedded counsel, in this case, embedded appellate counsel, and this was a trial that was conducted during COVID. And where the jury deliberated during COVID was was a big issue. Courtroom procedures was a big issue. And I just was wondering what the experience was like being embedded counsel in a courtroom during COVID.

Cory Webster  3:37  
It was a really interesting experience. It was definitely the first of its kind for me. At the time, Orange County spirit court was in partial reopen mode, where of all the various departments the several dozens departments in the civil court. Only five were open five courtrooms were open for trials. And so pretty much all cases were kind of waiting in the logjam, to be in there. When our case got started. We're going to come up with a complex court. Our case was not a complex case. But that's one of the courts that were open, pretty large room can make for the jury did not occupy only the jury seats. There was a handful of them in the jury seats, but to allow them space to be spaced out. There was just a few and the rest were in the gallery. And the court allowed only attorneys, the parties and witnesses to be in the courtroom. So I added attorneys were pretty limited to so we as the embedded appellate counsel, were the first ones to kind of get the boot but the core justified delimited access is provided by broadcasting live by livestream the cases. So as a better appellate counsel, I had to one I do I got to sit at my desk comfortably and watch the live stream and communicate with the trial. Team live by text messaging.

Tim Kowal  5:02 
Cory, it's been a long time since I've actually been physically in the Orange County Superior Court building. The last I recall Internet access was not provided there was a trial team able to get internet access Wi Fi access using their their laptops, could you communicate with them via laptop? Or did it just have to be via phone call during breaks?

Cory Webster  5:19  
Oh, we communicate by text message. So whether they actually had Internet access, I actually don't know. But I know that in the past, what we have done before is is a paralegal who's there helping run the show from Weather Tech standpoint or whatever has like a hotspot. And so they usually do have a mobile hotspot to provide internet access. But whether that was there or not, it wasn't we communicated by text messaging.

Tim Kowal  5:44 
Yeah. Well, they could have recently from Ryan McCarl, one of our other former guests on the program, who talked about how he uses Google Docs as to give tips to the trial attorney just opening up a shared Google doc you can type messages back and forth to each other. But that requires having internet access. Yeah. Now, Cory,

Jeff Lewis  6:03 
congratulations to you and Jimmy for a great result there. And Perry, big up big victory.

Cory Webster  6:08  
Thank you. It was a good one.

Tim Kowal  6:09 
All right. Now, Cory, as I mentioned, at the top, you are very active in the appellate LinkedIn community where you keep your thumb on the pulse on various controversial topics. I'd like to know what you found from the comments you've elicited on some of those posts. So for example, footnotes in appellate briefs, we're gonna get the we usually do the these really controversial topics at the end during the lightning round. But I want to ask you about some of these now, footnotes and appellate briefs, you know, that can be you can make a lot of friends or a lot of enemies on whether you endorse footnotes in appellate briefs. What is your position? What is the sense of the appellate community on whether footnotes should be embraced or avoided?

Cory Webster  6:46 
I feel like this is a topic where the interesting thing to say and a thing that will get everyone nodding their heads is avoid footnotes, you know, if it if it needs to be said at all, then it should be said in the body and that sort of thing. But there's also in favor of footnotes, there's all in favor of avoiding footnotes is the kind of tech angle of acknowledging the courts, the judges are reviewing briefs on their tablets on their iPads, what have you, it can be distracting, it's even harder or more distracting on the eyes to you got to use your finger and not just your eyes to glance up and down from the text to the footnote. Those are valid points and things to consider. But where I come down on this is, I think it's not that realistic to avoid footnotes altogether. In briefs, they're just there's too many times where there's something that will legitimately disruptive flow or give the wrong idea about whether the point you're making is critical to the appeal and route as opposed to a tangential point that you think is going to be a question in the minds of the judges that, by the way, this is how this tangential issue was resolved. But no to address that. There's so many times when you read through a brief, and if you put on the lens of a judge or law clerk looking at it, you come up with questions that you're going to have as you're going through it. And sometimes the answer to those questions, really is irrelevant to the disposition, the appeal, but maybe a hang up, that's going to be that lingering thing in the back of the judge's mind. And I think there's that calls out to me for a footnote, I think, of course, you shouldn't have overdue footnotes. And it's in many lawyers do overdue footnotes. Yeah, but this hardline stance? I don't I'm not in favor of.

Tim Kowal  8:32  
Yeah. Every calls to mind Chief Justice Roberts advice on footnotes, as I recall, it was if it's not a relevant point, drop it in a footnote. And then in a later draft, you can just delete all the footnotes.

Cory Webster  8:43 
Yeah, he learned that from his the Supreme Court Justice who he clerked for editing his work, where he was given basically two rounds of edits. The first one said moved to footnote and then the second roundabout it was doing.

Tim Kowal  8:56  
Yeah, and then to your point about the head bobbing up and down reading the main text dropping out of the footnote back up to the main text, where was I what was what was the writer talking about? That reminded me of Samuel Johnson's he actually weighed in on the topic of footnotes, you know, the 18th century, public intellectual, the mind is refrigerated by interruption. The thoughts are diverted from the principle subject, the reader is weary, he suspects not why and at last throws away the book which he too diligently studied. Sometimes that's the impression I get from too many footnotes. If it's just a couple here and there, or if it's a topic that Well, I wasn't even quite sure I was persuaded I need a little something more. Maybe that's in the footnote you ever tried? You don't want to linger too long on the subject of footnotes. Have you ever tried? What about the alternative of replacing a footnote with parenthetical? There's sometimes

Cory Webster  9:40  
that that can work. But quite often, the point you're making is a tangential point that I don't think the parenthetical helps you with that. I think it's actually more distracting. So I think you should look for ways in which that bite makes sense because there's sometimes maybe a footnote is being used in a way that a parenthetical might be a better alternative. But I think that's the majority

Tim Kowal  10:02 
of the times. Another brief writing prompt that you put out to the LinkedIn community was a question that Jeff is going to weigh in very heavily two spaces or one after a sentence. And you note that the Orthodox rule is his one space, obviously. But there are some traditionalists out there some of the older jurists on the bench who still look for two spaces, and maybe we need to defer to them, or at least know the reader. How do you come down on that? Should it usually be one space, but sometimes two spaces? How do we approach that thorny issue? Cory?

Cory Webster  10:34 
Okay, so I need to start by saying, I am a one spacer, one space is correct. But to your point about no die artist, that's the point of my, my LinkedIn post that you're talking about is really encouraging your audience to be the one who matters. So even on things that you're like, Oh, I know that this is correct. If you know that your audience disagrees with you. Why would you do it the way that you think is correct. Now, the problem that we have as lawyers is, we don't always and most of the time, we don't know for certainty about the preference of a particular judge who's going to be deciding my case. But I don't think that means we should just hang out, hold up our hands and say, Lon, okay, then I'm just gonna go with all my own preferences. Because I don't know this, I think the goal of studying and knowing your audience is something that we should never stop doing.

Tim Kowal  11:28 
As lawyers. That's good advice. And that takes us to our next point, which I think is along the same, imparting the same wisdom about using contractions in briefs, and there is a trend toward informality that would permit using contractions even in legal briefs and opinions. And you mentioned about Justice Kagan, who is a big fan of use contractions, but then you pivot and talk about how Justice Kagan has decided not to use them in certain kinds of opinions. Tell us about that.

Cory Webster  11:55 
Yeah, so this was at the Ninth Circuit Judicial Conference last summer, Justice Kagan came and was, you know, the highlight is her speaking. And it was really fast, because it was there that I learned that she doesn't use contractions in majority opinions, is something that had never occurred to me before. Because I had always associated her with this, you know, very simple conversational style of writing that often you find contractions in her opinions. And what I didn't know until she said is that she just doesn't do in a majority. As she explained her reason is that out of respect for being the one who's speaking on behalf of the court, and she is aware of at least one colleague who thinks that contractions shouldn't be in judicial opinions. She doesn't do them and majorities and and the thing like the last topic we were just talking about, it's kind of the same idea here is thinking about, What is this for who's the end user and thinking about that and letting that sometimes take precedence over your own preferences. I'm someone who, I don't think can attractions should be in every sentence of a brief, but but I think well used, well timed contractions, I like that as a matter of writing style. But you know, sometimes I think we are writing styles should kind of take a backseat.

Tim Kowal  13:10 
Well, on that point, I have to ask on just behalf. I don't know if we covered this last time, what do you make of the citation parenthetical cleaned up? It's in vogue, but what if there is a jurist who is reading your brief who doesn't like it?

Cory Webster  13:22 
So I can't remember if we talked about it in brand new or whatever, when we talk last, but Tim is gonna like what I'm gonna say Jeff's not gonna like what I'm going to say, I am all for judges using it. In fact, if more judges use it in decisions, then now when we quote those things there, they've already been cleaned up. And it's great, right? I am all for judges doing it. I am not as comfortable doing it. And I have never once done it in a brief for all the reasons people have have given for not doing it and that Tim has mentioned before, including that I don't know what is being conveyed in the mind of the reader when they see that no matter what I intended to mean. I feel like it's so there was something that requires Well, let me go back and check their work. And it's then it's me making more work for that reader. Let me check to make sure they haven't changed anything substantively. And I just just the specter of that thought process. I'm good without it. Yeah, but, Cory,

Jeff Lewis  14:17 
if you start with the assumption that a research attorney, a clerk or even a justice is checking every site Anyway, check melts. Metzler was on the podcast. He said, you know, assume judges assume lawyers are not being honest with their citations. If you start with that presumption that they're checking your citations anyway, and you've used cleaned up perfectly. Isn't that a fantastic way to show and build credibility with the court that you've actually cited something correctly, and yet presented it in a clean, more readable fashion?

Cory Webster  14:46 
That's maybe one argument but my response to that would be those law clerks who and they are trained? Not necessarily I mean, every judge kind of has a different way of doing this but one district court judge when I first started my clerkship, was very clear, was no, not a trust, but verify was like a just verify. No. And I think those who approach with that skeptical lens are not suddenly like, oh, well, I'm no longer skeptical. You know, and I think it's the more likely outcome is Oh, you made me have to like, not just check. The general gist was is this right? You stated correct point here. But did you wouldn't let me look at every single word to see if you took what you took out or whatever. I think that that type of person who's already coming to a skeptical is not going to no longer be skeptical and instead of just maybe gonna be more likely annoyed that they had an extra work.

Jeff Lewis  15:41 
All right, the skeptical floor. Got it. All right.

Tim Kowal  15:44 
Well, at the time of this recording our episode with Jack Metzler, the originator of the cleaned up, citation parenthetical has not yet aired. So after that airs, Corey will that will have to circle back. It moved me slightly more toward Jeff side, I'm still with you. I haven't used it. I don't have any plans on using it. But it does soften my view on the use of cleaned up. All right, final topic. Before we jump in to some interesting recent Ninth Circuit decisions over the past few months. We wanted to talk about legal tech Now, earlier this year. Cory You moderated a panel, believe for the Orange County Bar Association on tech tools for appellate and trial lawyers. Can you give us some of your takeaways from that panel? And that panel, as I recall, featured Ross Guberman.

Cory Webster  16:28 
And did Ross Guberman. Brief catch it? Also, there was also Jackie Schaefer Jackie shaver. Yeah, and CO Clark from trellis. And I mean, the kind of goal of that panel was to not necessarily just highlight those three products, but to kind of give a glimpse into two three products and kind of spur the thinking of like, there's there's kind of a world of tools out there that are that exists, and that maybe don't exist now, but will exist in a year or in a couple years just there's a world out there of tools available to help us in the practice of law. And it was for the appellate Law Section of the Orange County Bar Association. So it's focused on appellate lawyers. But one thing I'll say I've had brief catch for a long time now. And so it wasn't anything new to me there and Ross is is fantastic. I will tell you one thing clear brief is in a word incredible. And it's one of those things where don't learn about it, unless you are prepared to get it. Because once you know about it, you have to have it. Because it's just what it can do is so incredibly cool.

Tim Kowal  17:37  
Have you had an opportunity to check out type law, type law is a product that tell me about it, it can assemble a brief and do some of the things that clear brief does, I thought was kind of cool. But here's what was really the selling point. And I had the same reaction as you don't don't look at unless you're prepared to get out your credit card right then and there. It will put together your appellant Appendix for you. So we've all gone through the process. And we get toward the end of our brief and we realize oh, there was one other docket item that we need to include in that appendix. And it's happens to be right in the middle. So you go to your paralegal, would you mind tearing apart the appendix that you've done, so you can insert this one additional document that I forgot in the middle of it and renumber everything redo the indexes? This was created by people who decided who came up with the idea of while doing appellate appendices and thought, this is the 21st century. Why are we still doing this manually? So it's all done electronically, you can just add in another document at the last stage and it will renumber everything on the fly, redo your index indices, no trouble at all. So it's a really cool product. No, no, it sounds really cool. Yeah. All right. Well, let's get right into the meat then and talk about some notable Ninth Circuit cases coming out in the in recent months. First one will start from the most recent from June 2023. This is the Jack Daniels properties versus VIP products Case. This case deals with the interesting question of what do you do when binding precedent squarely forecloses your position? And back on episode nine is when you were with us last Corey, and we went through a lot of the the major differences between Ninth Circuit appellate practice and California State appellate practice. And one of the big differences. Perhaps the big difference is that in California, there's no horizontal starry decisis. So if you've got a previous decision that goes squarely against you, as long as you've got some other decision that allows for your position, then then you're clear sailing, you can ask for that result, but not so in the ninth circuit. If there's binding precedent, then sorry, you're hosed. And that's what the appellants were up against in in the Jack Daniels case, and yet, they somehow managed to win anyway. So tell us how they did that. Cory?

Cory Webster  19:41  
Yeah, so in the Jack Daniels case, some of the listeners I think will this will be familiar to them because it's gotten a lot of press from the Supreme Court decision that just came out on this this case and it's a trademark case or mark infringement case where you had a toy company that came up with a toy that you that looked like the Jack Daniels whiskey bottle. And you know, Jack Daniels wasn't pleased. Well, ninth circuit, the problem that they faced is ninth circuit precedent, basically established a test that meant Jack Daniels had to lose. And the issue is okay, well, what do you do? If you're in that position? And you're in the court during lower courts, and you're working your way up? Do you try to like, distinguish the case? Do you say that it's bad law? No, don't say that. It's bad law. It's binding until you're till you have established that as bad law. So don't do that. And of course, you know, if you have an argument for something being a case actually being distinguishable, you, of course would make data that should be your number one. But Jack Daniels, counsel here wisely recognize that precedent did actually foreclose and there was a law of the case issue two, because there had been a prior appeal. So it was they were really stuck with how the case had been framed. And so what did they do on their appeal? Why waste the time of doing a full merits brief or reply maybe having oral argument? They right away filed a motion for summary? affirmance? That's right. They these are the appellate court they said please give us a quick loss. Yeah.

Tim Kowal  21:19 
These are the appellants asking the court to affirm Yep.

Cory Webster  21:22 
And do so summarily, please, without needing full briefing or argument. And the briefing was pretty short on the motion for summary from us where they could just say, we recognize that there's precedent and law the case that squarely forecloses this to allow for an efficient way of for the court and for the parties to litigate this issue. Whether it be on bonk, or with this Supreme Court, please some earlier for

Tim Kowal  21:46 
at that point. Cory? Do you know Jack Daniels attorneys, and they preserve their arguments, what would they argue if not for this binding Ninth Circuit precedent standing in their way? Did they have to raise that put that on the record somewhere before they asked for summary? affirmance?

Cory Webster  22:01  
Well, I'm sure they did in previous to the first appeal. I think once the data first appeal that that said, what was going to be the law in that case? At that point, I'm assuming the trial court proceedings were pretty limited. And they may have done some discovery and things like that. But yeah, I would think it's pretty straightforward from there, where it's like, can you just, you know, punch our ticket here and let us move on to the next stage.

Tim Kowal  22:25 
Yeah. So what happened at that point? So they're staring down the face of binding precedent that says that they lose? So they strategically filed their motion for summary affirmance? Right, right out of the gates of the appeal, and the ninth circuit does what,

Cory Webster  22:38 
and then circuit grants that in a pretty, you know, formal order that just says granted and cites the rule that allows for summary disposition? I think it was a two sentence order. From that point, from a panel stage perspective, the case is over, and they can petition for rehearing on bunk. And that's what they did. I believe they did that. But I don't think they got any votes. It was didn't get a call for a vote. So no one, no one took it up on the ninth circuit to rehear there. And so they moved to the Supreme Court. And the Supreme Court granted cert, not only did the Supreme Court granted cert, but the the Supreme Court sided with them in a unanimous decision.

Jeff Lewis  23:18 
So Cory, you know, retroactively, it's easy to say, oh, yeah, save money, save time, it's much more efficient just to seek a summary affirmance. On the other hand, the odds of getting the supreme court to grant cert and then the odds of getting reversal, once you're in the Supreme Court, statistically speaking, isn't the better, stronger play always in the ninth circuit to try to do a brief on the merits to see if you could turn the judges around on either distinguishing the cases or evolving the law?

Cory Webster  23:46 
I think it's almost always going to be the case that you're going to have some argument that gives you whether it be a distinction, whether it be you have some other issue that well, even if we lose on that issue, that's foreclosed, we have another one that saves us, you know, another issue that if you agree with us on this other open question, that it makes this other first issue that we're going to lose on go away, there's any number of things that can allow for you to have an argument where you need to go to the merits. And it's definitely not a common thing that came up in this case. But I will say, we say sitting back, well, it's easy to say this was the right call, well, they made this call, you know, as if they were the ones that needed to make the call and they did it and yeah, and I'll tell you what, the lawyers they have a really good team, whether they made this decision or not. You look at the names there. And it's all star names. Lisa Blatt, who's in the Supreme Court several times every year, they're making these calls. I mean, yeah, it's a it's a bold move. Yeah, definitely a bold move. But, you know, what's a worst bold move to say things like, you know, please overturn this decision in your merits brief, you know, when the panel can do

Tim Kowal  24:57 
Yeah, yeah, no, that's right into that point about if you're going to make a bold move like that, you're going to want to make sure that you you have had competent appellate counsel on your team the entire time. I think we all we all know, sometimes we get calls that we're in trouble now we need to bring appellate counsel in now and you're looking at the record, it's a mess. There's the all the arguments that need to be that needed to have been made have not been made, if that had happened here that this strategy, which is already pretty daring, would have probably been foreclosed or probably wouldn't have been a sufficient record to go after this bold strategy.

Cory Webster  25:30 

Yeah, it's hard to, I think, doubtful that cert would have been granted if there was some procedural problems along the way, born out of not making sure they dotted all their i's and cross all their T's.

Tim Kowal  25:41  
Right. Okay. So that's the Jack Daniels versus VIP products case. Let's turn now to the next case. This is this is an another big bank decision that came out just this month, June 2023. This is the gap versus Fisher case. Korea, would you tell us about this case involves the shareholders of the gap that sued the gap in California Federal Court concerning some securities violation and a wound up with an unboxed vote. Tell us a little bit about this case and the importance of it?

Cory Webster  26:14 
Yeah, so the thing I want to share about this, so you can't use summarize enough of the facts of what the case is about to make the point or to learn take a lesson from this. That I think is a really fascinating thing about the Ninth Circuit and how on bonk works in the Ninth Circuit, and that is that, in this case, the three judge panel sided with the defendants, meaning that case was dismissed. The shareholders case was dismissed. And that's coming up on appeal. The plaintiffs are appealing. The three judge panel affirms siding with the defendants the gap, by the way, is it the gap? I always knew it as the gap, but the decision just says gap. So what is that? I don't know what that is?

Tim Kowal  27:00 
That's right. I don't know I got the part of its marketing that stuck in my head makes me think it's the gap. But now that I picture the store, it's just the three letters gap. So I don't know. So anyway,

Cory Webster  27:10 
the the plaintiffs lost with a three judge panel, and then a petition for rehearing on bond is filed. And this is the issue here presented a case that quite often lines up. I think it's not surprising that the case kind of lined up along the lines of party appointments nicely. You know, it was kind of a politically charged not in the sense of what the case being about politically but more judicially politically charged have philosophies about cases like this, that should should be should go forward or shouldn't. Yeah, so

Tim Kowal  27:44 
this is about a forum selection clause. So that was like a textualist versus purposive type of

Cory Webster  27:50 
global there was it was not done textureless versus proposed Swiss this. That's that was definitely in the background here. But you also had this added layer if you had a statute. And the question is whether the the provision, the forum selection clause was conflicting with the statute. There's definitely the atmospherics of you know, per post. I can't even say the word versus ritualism. But but it kind of in a wonky way, because you had to text agreement and the text of the statute, too. But I don't know that those line up perfectly, you know, along ideological lines,

Tim Kowal  28:29 
I wasn't aware it was it? Is there a an r versus D or liberal versus conservative jurist Prudential question on contracts over statutes were divided, typically

Cory Webster  28:39 
not as worded as broadly as that. But I think when you get into securities laws, and what they're meant to get at, and they, the securities laws have specific provisions that don't exist as to all other types of subject matter. And I think where you can see our D come in there is and I think this is painting a maybe too broad a brush, but I think the general was point applies here, and that is let parties to a contract have what they contracted for. More often you're gonna have a Republican appointed judge who agrees with that way of looking at a case Oh, god, okay. And a D is more a matter of like, hold on, not when the this very this law that's meant to protect consumers saying,

Tim Kowal  29:29 
Yeah, that sounds that sounds more familiar than the right of contract versus, you know, the general protection of consumer protection statutes. If you read those too broadly, then it interferes with the right of contract. Yeah, that I could see that breaking down on ideological lines. jurisprudential philosophy lines,

Cory Webster  29:46 
and the thing of getting back to like so the on bone point here is, if you look at the rule for when on bonk is granted, what you won't see is when judges disagree with the decision, it's you know, it's The kind of things that sound similar to getting cert granted, it's where it's an important issue that we'll have it, you know, ramifications on a lot of cases or where creates a split with other circuits. But I will tell you in practice, quite often, how a judge thinks about whether the three judge panel decision was right or wrong ways pretty heavily in terms of deciding how to vote on a call for rehearing on bunk. And I think that's to be expected when you know that three judge panels can set precedent for the whole court. You know, I think it gives every member of the court some stake in how these decisions are coming out. And so this does come into play. And what I, what I kind of suspect happened in this case is you've got court with pretty evenly split in terms of the party affiliation of who pointed out we have 16 democratic appointed members, although, as of a couple weeks ago, maybe we could say 15, because we have a seat to be filled, and 13 won by Republican presidents. And you need a bare majority of that 29 To take a case on Bach. But when it gets interesting is then after that, on Vonk is meant to be full court, but 29 is just way too cumbersome. And that's not what the way the Ninth Circuit doesn't is not a full court. It's a mini on bollocks it's 11 judges, and those 11 are drawn from the 29. And so there's no guarantee. If you have a vote that's 15 to 14 and by the slimmest of margins goes on bonk. Well, what if 10 of the 14 who voted against rehearing on bonk are the ones on

Tim Kowal  31:45 

the panel? That's right. As you mentioned here on on the 11. Judge panel here five were a Trump appointee judges.

Cory Webster  31:53 
That's right. And then I then you had another not Trump but a another Republican appointed one and surprise, surprise, the decision came out. Same way that the three judge panel did six, five, and there you have it yours this almost like this. I wonder whether since Trump appointed as many judges as he did, the numbers have balanced out quite a bit. It was much more heavily skewed democratic appointed with the makeup of the active judges on the court. And now with it being close, much closer, you can have this this kind of thing happened where I'm not gonna say maybe buyer's remorse is too sharp of a point here. But someone who's like I think this three judge panel was wrong. We should vote to rehear it, and then you get an envelope decision that basically says what the three judge panel did, because you don't know the makeup of the judges on that

Tim Kowal  32:44 
panel makes it much less predictable. What the Ninth Circuit is going to do on a nonbank petition. Certainly does. Yeah. All right. Well, that seems to be the takeaway there. That's we talked about that there is a an aspect of difference in judicial philosophy. It's not not a terribly stark difference, but it was enough to matter and the recent re composition, or balancing adding more, our appointed judges over the over the last term, or the prior term under the Trump years, has changed the makeup of the courts significantly that makes these on bond petitions, a different calculus than they may have been beforehand.

Cory Webster  33:21 
You really want to you really want to see, okay, if your case went on, bonk, the day that you find out who's that'll who are those 11 judges is a very revealing day.

Tim Kowal  33:31  
Now let's talk about Slack attacks versus Purani. This is another June 2023. case out of the ninth circuit. This was where a visiting judge on the panel wrote a dissent and wound up being vindicated by the Supreme Court. This is the upshot of the slack Tex technologies case is that when that one trial court judge sitting by designation can be the deciding vote that sets binding precedent in the circuit. And the reason that the court goes with the Supreme Court. Cory, tell us a little bit of the backstory and slack technologies and how a visiting judge wound up setting Ninth Circuit precedent.

Cory Webster  34:08 
Yeah, so this is something that's always fascinated me this idea that I'm not by no means am I criticizing this dynamic that I'm talking about here. But that just super fascinating to me that a visiting judge quite often is a trial court judge from a federal district court anywhere in the country comes and sits by designation on the Court of Appeals, the Ninth Circuit and very often these three judge panels resolve the case in a divided fashion two to one and quite often you can have when you have a three judge panel with one is a visiting judge from an do trial court somewhere in Tennessee or whatever they cast the deciding vote. And you know, that's that's kind of interesting, but when you know that the deciding vote setting precedent for the circuit, that becomes I think even more interesting. Again, I don't Don't think that that's problematic in any way. But it's I find incredibly fascinating. And this happens on a pretty regular basis. There isn't I don't think a month that goes by that you can pinpoint this happening in a published decision in the ninth circuit, where the deciding vote was from a visiting judge.

Tim Kowal  35:18 
And so it wasn't a dissenting vote. I misspoke earlier. But this judge was the deciding vote in the middle. So

Cory Webster  35:24 
the visiting judge was the deciding vote, and the to judge majority to set a precedent that created a circuit split. So all circuits to have addressed the issue that was presented and the case had all come out one way. And in a divided decision to to one, the, you know, with the visiting judge casting the deciding vote, as I said, the create the circuit split Well, it was judged Miller, who isn't a circuit judge who wrote a dissent, basically saying we should have joined, you know, all of our sister circuits and how we resolve this case. And what's interesting, so the Supreme Court took the case, then when you consider the criteria for when the Supreme Court takes cases, circuit split is, you know, like the top of the list in terms of what's going to get the Supreme Court's attention. And I'd venture to guess that if the vote had gone the other way, if the visiting judge had voted with Judge Miller, and judge Miller's decision was the majority, you'd have a handful of circuits who would address the issue, all of which that came down in one way, that doesn't look like the kind of thing that the Supreme Court is taking these days, especially as their docket gets smaller each year. So anyway, this caught my eye is just sort of one of these fascinating things where the vote of the you know, from one way of looking at anyway, the vote of this one visiting judge kind of set this on his stage for getting to the Supreme Court, when otherwise, I think it was really unlikely to would then made it to the Supreme Court.

Tim Kowal  36:57  
Yeah, yeah. Very interesting. So there was all the circuits had agreed and that there was it was curious that the Ninth Circuit decided to go a different way. I mean, even though it relied on the vote of a visiting judge. And and I take it, was there any call for unblock? Or do you know, if there was a petition for unblock review? Before the parties took this up?

Cory Webster  37:16 
I don't recall specifically, I'd be shocked if there was not a petition filed. But I don't recall there have been a vote called for on this one or not. I do know one random kind of tidbit here is Judge Miller who was the dissenting judge here. What he's a judge who I suspect, you can count on one hand the number of times that he has voted for rehearing on bonk. And you might be able to count them on no hands. I don't know. He's someone who's very much. I'm not going to tell you that he would never vote we're here on the block. That's definitely not true. But he's a tough vote to get even if he thinks a case is wrong. He's even written a statement that was submitted in connection with a denial of rehearing en bonk where he said, you know, whatever we think about the decision being right or wrong. It doesn't meet the criteria of the rule, you know, rehearing on box and appropriately, I think he's very much of the camp that thinks, rehearing on Vonk should be granted in very, very, very limited circumstances.

Tim Kowal  38:19  
Yeah. All right. So watch out for visiting judges, they can turn the tide, even in this case was just involving whether a plaintiff has standing to sue under a federal securities law. And again, all the other circuits that have decided the question went one way and a visiting judge joined the majority to create a majority opinion that that went the other way that set up a petition for cert and unanimous Reversal by Supreme Court. Bringing that brings the precedent of the Ninth Circuit in line with all of the other circuits and as Cory mentioned, very well might not have been the case, if not for the participation and vote of the visiting judge here. So visiting judges can play a very, very important and often unexpected role in ninth circuit decisions. Alright, let's move to the next case that you've written up posted on your appellate LinkedIn page. The prompt here is what happens when a member of your panel leaves the court after a decision but before finality. This is the Kelsey versus Garrett case from May of 2023. Why don't you set this one up for us, Cory? What was the Kelsey versus Garrett case about?

Cory Webster  39:23 
So this case is a habeas case. So you had a you've got an inmate who has challenged their conviction through a habeas proceeding. And what happens here is the petitioner wins on the in the appeal, which is you know, that's that alone is notable. Getting habeas relief is a real real challenge. And the petitioner here gets gets habeas relief, but it's a two, one decision. Now that's important, because there's one of the judges in the majority is Judge Paul Watford, who is now currently in private practice. That's right. Yeah, his last Day on the Ninth Circuit was May 31. This opinion was filed may 24. And by the way, that was a known date, it was known that that was going to be his last day of May May 31. So, if you are the attorney general for Nevada, this case came out in Nevada, and you get this decision. And a week after this decisions filed, you now have two members of a panel one voted for you and one voted against you. Sounds like a deadlock to me. Yeah. And your case isn't quite over yet. You still have time to petition for rehearing, whether it be panel rehearing, rehearing on bonk, and how is that vote gonna go? How does it to judge vote go when they you know, it's sure on different sides here. And this presents an interesting kind of situation. Right? Yeah. And

Tim Kowal  40:51  
as you mentioned before, if it was Judge Miller would judge Miller, even if Judge Miller was in the dissent, and now that one of the colleagues in the majority had now retired, that would judge Miller to say, well, that's the way the chips fell. And we're not going to use this opportunistically to change the result.

Cory Webster  41:09  
I doubt it when you see almost uniformly I can't think of in my head at time where I remember this not happening is that for a petition for panel rehearing, which is different than rehearing on bonk are presented for power hearing. A dissenting judge. I don't recall ever seeing a dense dissenting judge not voting in favor of a petition for panel rehearing. Because you're in effect, you're saying, Yeah, we should cite we should do what I said we should do. We should rehear it and rule in the way that my dissent says. And so here you have like they file a petition, a state in a matter, he files a petition for panel rehearing, there's going to be a deadlock vote. And the fact of filing that petition will for all intents and purposes necessitate the drawing of a new judge, a new judge will have to be drawn to replace judge Watford. I'm guessing that's happened by now. I don't know that that's been publicly disclosed on the docket or anything, but I suspect that that's happened. And now all of a sudden, that new judge to the case will be the deciding vote on a petition for panel rehearing.

Tim Kowal  42:13 
Okay, so once the petition for panel rehearing is filed, and you don't have all the constituent members of the three judge panel still still there on the bench, then the Ninth Circuit is obliged to reef to fill that that gap and the panel

Cory Webster  42:28 
with one caveat. It's not simply that they have someone off, it's that if they were, if this was Judge Graber, who was in the dissent, if she was the one who left the court, the two judge majority can buy a majority as just the two of them denied a petition for panel rehearing. Only if you need a third to break to actually resolve

Tim Kowal  42:50 
it, you still need the majority to deny the petition for redress. So

Cory Webster  42:54 
it's not just simply that you lose the judge that the court is obliged to replace someone. It's where it's this situation where you're going to have a deadlock.

Tim Kowal  43:03  
Got it? Well, that's interesting. So that's that's another thing to watch. Whenever you see news that a Ninth Circuit Judge has retired, take a look and see if that judge has participated on the panel of any split decisions, because then you may see another instance of what we see here in the Kelsey versus Garrett case. And so at this time, Cory, this was only not even a month ago, just about three weeks ago that this happened. So the the state of play right now, I believe you said is that we're still waiting to see what the ninth circuit does to replace that replaced judge Watford on the panel, right.

Cory Webster  43:35 
I'm assuming that the state, I mean, I'd be shocked if the state didn't file a petition for panel rehearing, at least if not we're hearing among and that would trigger yet that assignment has almost certainly been made, whether it's been made public or not. Another time that this has come up as in recent years, is when Judge Reinhardt passed away unexpectedly, you know, this, this happened, it's going to potentially come up anytime the judge leaves the court, whether it's retirement or otherwise. And there was a number of cases where he was in a two one majority on opinions that were not cases that were not yet final. And so the court had to draw replacement. And I saw I remember at least one instance where three judge panel flip, you know, to one decision flipped as a result of this kind of situation coming up. Yeah, that's funny stuff, I think.

Tim Kowal  44:25  
Yeah. Well, that is fascinating. Whenever you see retirements or other unexpected exits from the bench and the Ninth Circuit, look out for these kinds of situations. Okay, let's go on to our next case is going to be I think our last case that we'll be able to cover in the time allotted for today. This is the National Pork Producers Council versus Ross. I like to think of this as the case that saved the MC rib. This case dealt with the Dormant Commerce Clause, that clause that a lot of US attorneys have probably never touched since law school. It's just exists there in doctrine, but it was a reality in this Supreme Court decision and net National Pork Producers rejected the challenge to the much maligned Dormant Commerce Clause doctrine. Quarry, set this one up for us. Tell us what happened in the National Pork Producers case?

Cory Webster  45:12 
Yeah. So first of all say I am sure that there are lawyers out there who have, you know, like Dormant Commerce Clause is their thing, but I've never met. Like, like you said, I mean, I don't think I've even talked about dormant, Dormant Commerce Clause since law school. I mean, I thought about it at number two, but yeah,

Tim Kowal  45:32 
that always it's always there. And the issue spotting, just throw it out there, it probably applies somehow.

Cory Webster  45:36 
Exactly. And there's not a lot of press. I mean, it's about California law that significantly restricts the way that pork is processed. And it basically has effects for like, the nation's pork production.

Tim Kowal  45:51 
Yeah. Because I don't think we produce a whole heck of a lot of pork here in California.

Cory Webster  45:55 
Apparently, we do some I mean, we're a big steak. So there's, we don't produce the bulk of the country's pork, for sure. But I think we consume, you know, our California population share. But the way that the industry works is this basically has the effect of being a statute that applies outside of California.

Tim Kowal  46:15 
Yeah. Anyone who wants to sell pork in California is going to have to comply with the California statute on the regulating the production of pork.

Cory Webster  46:22 
Yeah, so no surprise, at least that's the issue spotting thing, like you said, like this was like, Hey, this is a problem, says the National Pork Producers Council. And the thing, the Ninth Circuit angle on this that I think is pretty fascinating is the decision from the ninth circuit that came up through the Ninth Circuit rejected the challenge here. And rightly so. I mean, it was pretty straightforward decision, because under existing precedent, the type of challenge here does not give rise to a claim under the Dormant Commerce Clause. And what the plaintiffs hoping for here is setting up a case that could I don't expand or restrict or how you say, it could could say, could create a claim for them by maybe putting the Dormant Commerce Clause in a closet somewhere. So you didn't have much of an audience here. I think that they at least had an argument getting back to our point about do you ask the ninth circuit to summarily affirm, this was not one of those cases that, you know, they made their arguments and, and such, but I think it was not a super difficult decision here. And Judge a CUDA wrote the majority opinion with the unanimous opinion for the panel here. But what she says makes me think that she did so somewhat reluctantly, or somewhat maybe predicting that, although current precedent rejects the the plaintiff's claims, maybe that's not for so long. I've got her decision here in front of me to read some part of that this is the conclusion paragraph. While the Dormant Commerce Clause is not yet a dead letter, it is moving in that direction. Indeed, some justices have criticized the Dormant Commerce Clause jurisprudence as being unmoored from any constitutional text and resulting in policy laden judgments that courts are ill equipped and arguably unauthorized to make. And she quotes a dissenting opinion from Justice Clarence Thomas, they're the very end line she's she talks about how they have not the plaintiffs have not stated a claim for violation of the Dormant Commerce Clause under our existing precedent, the fact that she kind of keeps repeating that this tells me this is someone who's, who thinks, Okay, pretty clear under our existing precedent, but I'm not so sure that precedent is going to last. And what's really sort of interesting here is that so the Supreme Court affirms meaning you sorry, Dormant Commerce Clause is here to stay. And the fascinating thing I found here is that it the Supreme Court affirmed on the slimmest of margins by four. And Justice Thomas was a vote in the majority vote for affirming this decision. Pretty interesting, because I think that he was probably the last person judge Hakuna saw as affirming her decision. And I think her by citing him. And I think in her conclusion, I think she was kind of thinking there's at least one vote there that would actually maybe overturn precedent here, but not so.

Tim Kowal  49:27 
Jeff, you got a comment about this case, then you?

Jeff Lewis  49:30 
Well, I'll just say, look, I looked at this case more as a states rights issue. And if you look at just as a states rights issue, and not beyond the animal rights issue, I'm not surprised by this outcome or how Justice Thomas voted. And yeah, it was interesting to see it'll be interesting what other states do pick up on if they feel empowered to do more and fear the Dormant Commerce Clause less as a result of this decision?

Cory Webster  49:53 
Yeah, it was very much the foreground here, not just the background on this whole argument was What will other states do? Or what can other states do and thinking through the lens of what does a ruin here mean for other cases Supreme Court's always looking like that. But this case, especially so it was like, that's pretty much what this case was all about was, well, what is everything that a state can do in this kind of way that's going to have an effect beyond their its borders? Yeah, it will be very interesting. I agree to see, well,

Jeff Lewis  50:23 
what if California wanted to pass a law that said, we're only gonna allow guns to be sold in California, if a manufacturer has insurance and safety, and all sorts of things that make it basically commercially unreasonable to manufacture assault rifles? I wonder if that kind of application of this law would survive a commerce a Dormant Commerce Clause analysis?

Cory Webster  50:47
Yeah. It'd be interesting to see. I wonder if the Dormant Commerce Clause in that situation might get relegated to the backburner and in favor of De Bruyne analysis that? Yeah. Now it would, oh, you know, it's a Second Amendment case. Okay. Dormant Commerce Clause. That's what's kind of scarier and in weirder and more archaic. Maybe we can resolve it on a separate round. But I think you're totally your intuition is right there too. Like, all sorts of things you can imagine. And, you know, and frankly, because of the kind of public comment, and what's on our mind right now, especially after the last term Supreme Court, I think a lot of people were thinking during this argument about laws about abortion, or, you know, abortion tangent at our state specific, but that are like, you know, you can't, you can't go out of state to do this or that, or, you know, all sorts of things that couldn't help but think of Well, yeah, this.

Tim Kowal  51:39 
One thing this case reminded me of was all of the auto emission standards that California has that that tend to that indirectly or directly, however you look at it, horses compels, influences automakers to comply with California standards. And because it's too hard to make different cars for different states, they just make all cars comply with California standards. And then it has this kind of trickle down almost like a national effect, because California is such a large market for autos and other products, that by heightening the standards, de facto becomes a national standard. So I wonder if that seems that I'm assuming that was the gist of the Dormant Commerce Clause angle here that the National Pork Producers argued, but obviously, it was not successful?

Cory Webster  52:21  
Yeah, the takeaway? I think you're Jeff and Tim, is California is a big state that can wield pretty great power.

Tim Kowal  52:29 
Yeah, absolutely. All right. Well, Cory, you know, I picked up another half dozen, at least different cases that we could have continued on. But we're going to try to keep this conversation under our normal podcast length limits of about an hour. So Cory, was there anything else that you want to share today? Or do you want to tell our audience where they can find more of your ninth circuit updates?

Cory Webster  52:51
Yeah. So for now, where to find my updates are is on LinkedIn. So find me on LinkedIn, if you're not connected with me already, love to connect, follow whatever up but I post every week on just topics related to brief writing or decisions that are important decisions come out or lessons that you can take from from recent decisions, and try to provide things that you know, news you can use as someone I know when said, so yeah, you can find me on LinkedIn is the place that I kind of hang out, I guess. Yeah, and

Tim Kowal  53:23 
you're gonna find a lot of great inside baseball, concerning Ninth Circuit cases that are coming down the pike that you learn to look for things like the cases that we've talked about today, how to predict what might happen on on bonk, review what happens when a judge retires from the Ninth Circuit, and all sorts of interesting things that you wouldn't even think of, if you're not reading Corey Webster's LinkedIn page, but that's gonna wrap it up for this episode. Again, we want to thank casetext for sponsoring the podcast each week, when we include links to the cases we discuss, including the links that we discussed from Korea's repertoire. Today, we use case texts daily updated database of case law, statutes, regulations, codes, and more listeners of the podcast enjoy a special discount on casetext basic research at That's Yeah, if you

Jeff Lewis  54:13 
have suggestions for future episodes, please email us at info at Cal And in our upcoming episodes with for tips on how to lay the groundwork for an appeal when preparing for trial.

Tim Kowal  54:21  
Alright, thanks again, Cory.

Cory Webster  54:23  
Thanks for having me back, Jeff and Tim,

Tim Kowal  54:25 
next time, but

Announcer  54:27 
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