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10,774,584	United States v. Farhan Sheikh	2026-01-14	25-1011	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before RIPPLE, KIRSCH, and LEE, Circuit Judges.", "parties": "", "opinions": [{"author": "KIRSCH, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 25-1011\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n v.\n\nFARHAN SHEIKH,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 19 CR 655 — Mary M. Rowland, Judge.\n ____________________\n\n ARGUED NOVEMBER 5, 2025 — DECIDED JANUARY 13, 2026\n ____________________\n\n Before RIPPLE, KIRSCH, and LEE, Circuit Judges.\n KIRSCH, Circuit Judge. A jury convicted Farhan Sheikh of\nthreatening to kill doctors, patients, and visitors at a Chicago\nabortion clinic in violation of 18 U.S.C. § 875(c). On appeal,\nSheikh challenges his conviction by arguing that § 875(c) is\nunconstitutional, the grand jury that indicted him wasn’t ad-\nequately informed about the law, and that improper evidence\nwas admitted at trial. Because these arguments fail to per-\nsuade, we aﬃrm.\n\f2 No. 25-1011\n\n I\n In August 2019, Farhan Sheikh was a college student with\na part-time job and was a regular user of the social media app\niFunny. iFunny users frequently shared humorous content on\nthe platform, some of which involved dark humor that made\nlight of serious subjects. Sheikh typically posted non-humor-\nous content on iFunny, including soccer photographs and\nvideos, and his account was public, meaning that anyone\ncould view it. On August 13, he posted the following:\n I am done with my state and thier bullshit abor-\n tion laws and allowing innocrnt kids to be\n slaughtered for the so called “womans right”\n bullshit. Ive seen nothing but whores go out of\n the way to get an abortion, but no more. I will\n not tolerate this anymore. Im DONE. On Au-\n gust 23rd 2019, I will go to the WOMANS AID\n CENTER in Chicago on peterson. I will proceed\n to slaughter and murder any doctor, patient, or\n visitor i see in the area and I will not back down.\n consider this a warning for anyone visiting…\nThe Women’s Aid Center is a real clinic in Chicago that pro-\nvides abortions and other services. Sheikh later commented\non the same post that, “This is not a joke…” and wrote sepa-\nrately, “To all the fbi agents in this app, I am NOT a satirical\naccount. I post what I mean and i WILL carry out what I post.”\nHe also wrote, “August 23 2019 Womans aid center on Peter-\nson if you know, you know…” and, “If killing babies is a right\nand practicing your freedom of speech isnt, then what kinda\nsociety is this? I do not care anymore, may god forgive me for\nwhat I am going to do soon…[.]” In private messages, Sheikh\ndiscussed how to access the clinic and wrote that, “I can make\n\fNo. 25-1011 3\n\nit in, it’s fine if I can’t make it out.” He told another user, “I\nmight be going to jail” and, “I will not back down.”\n An iFunny user reported Sheikh’s posts to the FBI. The FBI\ninvestigated and learned that Sheikh had saved a screenshot\nof a Google search result of the Women’s Aid Center in Chi-\ncago. Law enforcement officers quickly warned the clinic\nabout the threat, and the clinic canceled its appointments for\nthe day. An employee who heard about Sheikh’s posts left\nwork and took the next several days off. The clinic decided to\nimprove its security, installing additional cameras and a panic\nbutton.\n Officers arrested Sheikh, and a grand jury indicted him\nwith transmitting a threat through interstate communications\nin violation of 18 U.S.C. § 875(c). Sheikh then moved to dis-\nmiss the indictment, arguing that § 875(c) was facially uncon-\nstitutional and (relatedly) that the government failed to\nproperly instruct the grand jury. The district court denied that\nmotion and held a trial.\n Among other evidence, the government introduced the\ntestimony of two clinic employees and images of security im-\nprovements the clinic made in response to Sheikh’s posts. The\nemployees testified about the clinic’s services and location,\ntheir reactions to learning about the threat, and the steps the\nclinic took to enhance security. Sheikh took the stand and tes-\ntified that he never intended or prepared to carry out an at-\ntack but had instead posted about the clinic to gain popularity\nin the iFunny community. After the jury convicted him,\nSheikh moved for a new trial, but the district court denied that\nmotion, too. This appeal followed.\n\f4 No. 25-1011\n\n II\n A\n Sheikh argues that the district court should have granted\nhis motion to dismiss the indictment because § 875(c) conflicts\nwith the First Amendment. Specifically, Sheikh argues that\n§ 875(c) is unconstitutional on its face because it fails to re-\nquire (1) that only a true threat be punishable, and (2) that a\npunishable threat must be made with some level of subjective\nintent. We review the constitutionality of a federal statute de\nnovo. United States v. Rush, 130 F.4th 633, 635 (7th Cir. 2025).\n Section 875(c) says that:\n Whoever transmits in interstate or foreign com-\n merce any communication containing any\n threat to kidnap any person or any threat to in-\n jure the person of another, shall be fined under\n this title or imprisoned not more than five years,\n or both.\n18 U.S.C. § 875(c). Sheikh is right that the statute doesn’t ex-\nplicitly require that punishable speech be a true threat, mean-\ning “a serious expression of an intent to commit an act of un-\nlawful violence to a particular individual or group of individ-\nuals.” Virginia v. Black, 538 U.S. 343, 359 (2003). The statute\nalso lacks an express requirement that punishable speech be\nmade with criminal intent.\n The absence of these express requirements doesn’t matter.\nThat’s because § 875(c) can and must be interpreted to implic-\nitly include these requirements. See United States v. Hansen,\n599 U.S. 762, 781 (2023) (“When legislation and the Constitu-\ntion brush up against each other, [a court’s] task is to seek har-\nmony” between the two.). In United States v. Stewart, we held\n\fNo. 25-1011 5\n\nthat § 875(c) criminalizes only true threats and not constitu-\ntionally protected speech. 411 F.3d 825, 828 (7th Cir. 2005) (cit-\ning Watts v. United States, 394 U.S. 705, 707 (1969)); see also\nUnited States v. Khan, 937 F.3d 1042, 1051 (7th Cir. 2019). And\nSheikh’s objection about a mens rea requirement similarly\nfails because the “mere omission from a criminal enactment\nof any mention of criminal intent should not be read as dis-\npensing with it.” Elonis v. United States, 575 U.S. 723, 734\n(2015) (citation modified). Instead, courts must generally in-\nterpret “criminal statutes to include broadly applicable scien-\nter requirements, even where the statute by its terms does not\ncontain them.” Id. (citation modified).\n We apply that approach to mens rea in § 875(c). Id. at 737–\n42. More specifically, § 875(c) punishes threats that are made\nat least recklessly. See Counterman v. Colorado, 600 U.S. 66, 73–\n82 (2023) (considering a state-law prohibition on true threats\nand holding that in such cases a mens rea standard of reck-\nlessness satisfies the First Amendment); United States v.\nGarnes, 102 F.4th 628, 637 (2d Cir. 2024) (finding that, after\nCounterman, a showing of recklessness is sufficient to violate\n§ 875); Voneida v. Johnson, 88 F.4th 233, 238 & n.3 (3d Cir. 2023)\n(same); United States v. Ehmer, 87 F.4th 1073, 1120 n.16 (9th Cir.\n2023) (same); United States v. Nformangum, No. 24-20515, 2026\nWL 18900, at 4–6 (5th Cir. Jan. 2, 2026) (same); United States\nv. Franks, No. 24-11546, 2025 WL 2732412, at 1 (11th Cir. Sept.\n25, 2025) (same). Insofar as our previous cases, including\nStewart, suggested that a higher level of subjective criminal\nintent was required to violate § 875(c), Counterman supersedes\nthat precedent: recklessness is now the standard.\n To prevail on this facial challenge, Sheikh needs to show\nthat “a substantial number of [§ 875(c)’s] applications are\n\f6 No. 25-1011\n\nunconstitutional, judged in relation to the statute’s plainly le-\ngitimate sweep.” Moody v. NetChoice, LLC, 603 U.S. 707, 723\n(2024) (citation modified). We read § 875(c) to include the sub-\njective intent and true threat requirements that Sheikh identi-\nfies as necessary, and so the law does not run afoul of the First\nAmendment in the ways that Sheikh argues.\n Sheikh objects that the grand jury that indicted him wasn’t\ninformed about the true threat and mental state requirements\nunder § 875(c) and wasn’t allowed to consider the context for\nhis speech. The district court carefully considered and cor-\nrectly rejected these arguments. And even if the district\ncourt’s analysis was flawed in some way (Sheikh fails to tell\nus how), the kinds of errors in a grand jury proceeding that\nSheikh speculates about are harmless now, after the trial jury\nreached a guilty verdict. United States v. Mechanik, 475 U.S. 66,\n70–71 (1986).\n B\n Moving to the trial itself, Sheikh objects to the admission\nof the clinic workers’ testimony and the images of security im-\nprovements. We review evidentiary rulings for an abuse of\ndiscretion and will reverse only if we reach “the definite and\nfirm conviction that a mistake has been committed” that was\nnot harmless. United States v. Smith, 150 F.4th 832, 847 (7th Cir.\n2025) (citation modified).\n As noted above, the government needed to prove that\nSheikh’s posts conveyed “a real possibility that violence\n[would] follow.” Counterman, 600 U.S. at 74. In this inquiry,\n“both the victim’s response to a statement and the victim’s be-\nlief that it was a threat” are relevant. United States v. Parr, 545\nF.3d 491, 501 (7th Cir. 2008) (citation modified); see United\n\fNo. 25-1011 7\n\nStates v. Schneider, 910 F.2d 1569, 1570–71 (7th Cir. 1990). Here,\nwhat Sheikh’s posts meant to those who were threatened and\nthe actions they took in response tend to show that Sheikh\nmade a true threat. See Counterman, 600 U.S. at 74.\n Sheikh makes three objections: that the clinic workers\nlearned about the threat from law enforcement; that they\ndidn’t view the iFunny posts themselves; and that law en-\nforcement encouraged the clinic to implement security\nmeasures. The employees’ lack of first-hand knowledge of the\nposts or their context and the possibility that law enforcement\nencouraged security improvements means that the probative\nvalue of this evidence was diminished. Yet there’s no dispute\nthat law enforcement accurately conveyed the gist of what\nSheikh wrote, and what the workers believed and did as a re-\nsult was still relevant to the seriousness of the threat. See Parr,\n545 F.3d at 501–02 (noting that “the reaction of the target of a\nthreat even when the speaker did not communicate the threat\nto the target” was relevant to the true threat determination).\nOn cross-examination, Sheikh was free to point out the limits\nof these witnesses’ knowledge and law enforcement’s role in\nprompting changes at the clinic. But even imperfect evidence\nis generally admissible. See United States v. McKibbins, 656\nF.3d 707, 711 (7th Cir. 2011) (“The Federal Rules of Evidence\ndo not limit the government to the most probative evidence;\nall relevant evidence is admissible and the Rules define rele-\nvance broadly.”) (citation modified).\n Sheikh’s final argument—that the clinic workers’ testi-\nmony and images were unfairly prejudicial—is undeveloped\nand unsupported by the record. A district court may exclude\nrelevant evidence when the probative value “is substantially\noutweighed by a danger of … unfair prejudice.” Fed. R. Evid.\n\f8 No. 25-1011\n\n403. Because the application of Rule 403 depends heavily on\ncontext, “we give special deference to the district court’s find-\nings and reverse only when no reasonable person could take\nthe view adopted by the trial court.” United States v. Frazier,\n129 F.4th 392, 405 (7th Cir. 2025) (citation modified).\n Evidence can be unfairly prejudicial if it would make it\nlikely that a jury would decide the case based on emotions,\nrather than the evidence presented. See Barber v. City of Chi-\ncago, 725 F.3d 702, 714 (7th Cir. 2013). In this case, however,\nthe clinic workers’ testimony was largely matter-of-fact.\n Even if the district court erred in allowing the workers’\ntestimony and the images, however, the evidence of guilt—\nthe specificity of the initial post, testimony from an iFunny\nuser who interpreted Sheikh’s posts as threats, and Sheikh’s\nsubsequent iFunny conversations and posts expressing a se-\nrious intent—means that any error was harmless. See Smith,\n150 F.4th at 848. The images and clinic workers’ testimony\nwere relevant to the truth of Sheikh’s threat, were not unfairly\nprejudicial, and didn’t turn the tide with the jury given the\nstrength of the government’s case.\n AFFIRMED", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11241169/", "author_raw": "KIRSCH, Circuit Judge"}, {"author": "KIRSCH, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 25-1011\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n v.\n\nFARHAN SHEIKH,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 19 CR 655 — Mary M. Rowland, Judge.\n ____________________\n\n ARGUED NOVEMBER 5, 2025 — DECIDED JANUARY 13, 2026\n ____________________\n\n Before RIPPLE, KIRSCH, and LEE, Circuit Judges.\n KIRSCH, Circuit Judge. A jury convicted Farhan Sheikh of\nthreatening to kill doctors, patients, and visitors at a Chicago\nabortion clinic in violation of 18 U.S.C. § 875(c). On appeal,\nSheikh challenges his conviction by arguing that § 875(c) is\nunconstitutional, the grand jury that indicted him wasn’t ad-\nequately informed about the law, and that improper evidence\nwas admitted at trial. Because these arguments fail to per-\nsuade, we aﬃrm.\n\f2 No. 25-1011\n\n I\n In August 2019, Farhan Sheikh was a college student with\na part-time job and was a regular user of the social media app\niFunny. iFunny users frequently shared humorous content on\nthe platform, some of which involved dark humor that made\nlight of serious subjects. Sheikh typically posted non-humor-\nous content on iFunny, including soccer photographs and\nvideos, and his account was public, meaning that anyone\ncould view it. On August 13, he posted the following:\n I am done with my state and thier bullshit abor-\n tion laws and allowing innocrnt kids to be\n slaughtered for the so called “womans right”\n bullshit. Ive seen nothing but whores go out of\n the way to get an abortion, but no more. I will\n not tolerate this anymore. Im DONE. On Au-\n gust 23rd 2019, I will go to the WOMANS AID\n CENTER in Chicago on peterson. I will proceed\n to slaughter and murder any doctor, patient, or\n visitor i see in the area and I will not back down.\n consider this a warning for anyone visiting…\nThe Women’s Aid Center is a real clinic in Chicago that pro-\nvides abortions and other services. Sheikh later commented\non the same post that, “This is not a joke…” and wrote sepa-\nrately, “To all the fbi agents in this app, I am NOT a satirical\naccount. I post what I mean and i WILL carry out what I post.”\nHe also wrote, “August 23 2019 Womans aid center on Peter-\nson if you know, you know…” and, “If killing babies is a right\nand practicing your freedom of speech isnt, then what kinda\nsociety is this? I do not care anymore, may god forgive me for\nwhat I am going to do soon…[.]” In private messages, Sheikh\ndiscussed how to access the clinic and wrote that, “I can make\n\fNo. 25-1011 3\n\nit in, it’s fine if I can’t make it out.” He told another user, “I\nmight be going to jail” and, “I will not back down.”\n An iFunny user reported Sheikh’s posts to the FBI. The FBI\ninvestigated and learned that Sheikh had saved a screenshot\nof a Google search result of the Women’s Aid Center in Chi-\ncago. Law enforcement officers quickly warned the clinic\nabout the threat, and the clinic canceled its appointments for\nthe day. An employee who heard about Sheikh’s posts left\nwork and took the next several days off. The clinic decided to\nimprove its security, installing additional cameras and a panic\nbutton.\n Officers arrested Sheikh, and a grand jury indicted him\nwith transmitting a threat through interstate communications\nin violation of 18 U.S.C. § 875(c). Sheikh then moved to dis-\nmiss the indictment, arguing that § 875(c) was facially uncon-\nstitutional and (relatedly) that the government failed to\nproperly instruct the grand jury. The district court denied that\nmotion and held a trial.\n Among other evidence, the government introduced the\ntestimony of two clinic employees and images of security im-\nprovements the clinic made in response to Sheikh’s posts. The\nemployees testified about the clinic’s services and location,\ntheir reactions to learning about the threat, and the steps the\nclinic took to enhance security. Sheikh took the stand and tes-\ntified that he never intended or prepared to carry out an at-\ntack but had instead posted about the clinic to gain popularity\nin the iFunny community. After the jury convicted him,\nSheikh moved for a new trial, but the district court denied that\nmotion, too. This appeal followed.\n\f4 No. 25-1011\n\n II\n A\n Sheikh argues that the district court should have granted\nhis motion to dismiss the indictment because § 875(c) conflicts\nwith the First Amendment. Specifically, Sheikh argues that\n§ 875(c) is unconstitutional on its face because it fails to re-\nquire (1) that only a true threat be punishable, and (2) that a\npunishable threat must be made with some level of subjective\nintent. We review the constitutionality of a federal statute de\nnovo. United States v. Rush, 130 F.4th 633, 635 (7th Cir. 2025).\n Section 875(c) says that:\n Whoever transmits in interstate or foreign com-\n merce any communication containing any\n threat to kidnap any person or any threat to in-\n jure the person of another, shall be fined under\n this title or imprisoned not more than five years,\n or both.\n18 U.S.C. § 875(c). Sheikh is right that the statute doesn’t ex-\nplicitly require that punishable speech be a true threat, mean-\ning “a serious expression of an intent to commit an act of un-\nlawful violence to a particular individual or group of individ-\nuals.” Virginia v. Black, 538 U.S. 343, 359 (2003). The statute\nalso lacks an express requirement that punishable speech be\nmade with criminal intent.\n The absence of these express requirements doesn’t matter.\nThat’s because § 875(c) can and must be interpreted to implic-\nitly include these requirements. See United States v. Hansen,\n599 U.S. 762, 781 (2023) (“When legislation and the Constitu-\ntion brush up against each other, [a court’s] task is to seek har-\nmony” between the two.). In United States v. Stewart, we held\n\fNo. 25-1011 5\n\nthat § 875(c) criminalizes only true threats and not constitu-\ntionally protected speech. 411 F.3d 825, 828 (7th Cir. 2005) (cit-\ning Watts v. United States, 394 U.S. 705, 707 (1969)); see also\nUnited States v. Khan, 937 F.3d 1042, 1051 (7th Cir. 2019). And\nSheikh’s objection about a mens rea requirement similarly\nfails because the “mere omission from a criminal enactment\nof any mention of criminal intent should not be read as dis-\npensing with it.” Elonis v. United States, 575 U.S. 723, 734\n(2015) (citation modified). Instead, courts must generally in-\nterpret “criminal statutes to include broadly applicable scien-\nter requirements, even where the statute by its terms does not\ncontain them.” Id. (citation modified).\n We apply that approach to mens rea in § 875(c). Id. at 737–\n42. More specifically, § 875(c) punishes threats that are made\nat least recklessly. See Counterman v. Colorado, 600 U.S. 66, 73–\n82 (2023) (considering a state-law prohibition on true threats\nand holding that in such cases a mens rea standard of reck-\nlessness satisfies the First Amendment); United States v.\nGarnes, 102 F.4th 628, 637 (2d Cir. 2024) (finding that, after\nCounterman, a showing of recklessness is sufficient to violate\n§ 875); Voneida v. Johnson, 88 F.4th 233, 238 & n.3 (3d Cir. 2023)\n(same); United States v. Ehmer, 87 F.4th 1073, 1120 n.16 (9th Cir.\n2023) (same); United States v. Nformangum, No. 24-20515, 2026\nWL 18900, at 4–6 (5th Cir. Jan. 2, 2026) (same); United States\nv. Franks, No. 24-11546, 2025 WL 2732412, at 1 (11th Cir. Sept.\n25, 2025) (same). Insofar as our previous cases, including\nStewart, suggested that a higher level of subjective criminal\nintent was required to violate § 875(c), Counterman supersedes\nthat precedent: recklessness is now the standard.\n To prevail on this facial challenge, Sheikh needs to show\nthat “a substantial number of [§ 875(c)’s] applications are\n\f6 No. 25-1011\n\nunconstitutional, judged in relation to the statute’s plainly le-\ngitimate sweep.” Moody v. NetChoice, LLC, 603 U.S. 707, 723\n(2024) (citation modified). We read § 875(c) to include the sub-\njective intent and true threat requirements that Sheikh identi-\nfies as necessary, and so the law does not run afoul of the First\nAmendment in the ways that Sheikh argues.\n Sheikh objects that the grand jury that indicted him wasn’t\ninformed about the true threat and mental state requirements\nunder § 875(c) and wasn’t allowed to consider the context for\nhis speech. The district court carefully considered and cor-\nrectly rejected these arguments. And even if the district\ncourt’s analysis was flawed in some way (Sheikh fails to tell\nus how), the kinds of errors in a grand jury proceeding that\nSheikh speculates about are harmless now, after the trial jury\nreached a guilty verdict. United States v. Mechanik, 475 U.S. 66,\n70–71 (1986).\n B\n Moving to the trial itself, Sheikh objects to the admission\nof the clinic workers’ testimony and the images of security im-\nprovements. We review evidentiary rulings for an abuse of\ndiscretion and will reverse only if we reach “the definite and\nfirm conviction that a mistake has been committed” that was\nnot harmless. United States v. Smith, 150 F.4th 832, 847 (7th Cir.\n2025) (citation modified).\n As noted above, the government needed to prove that\nSheikh’s posts conveyed “a real possibility that violence\n[would] follow.” Counterman, 600 U.S. at 74. In this inquiry,\n“both the victim’s response to a statement and the victim’s be-\nlief that it was a threat” are relevant. United States v. Parr, 545\nF.3d 491, 501 (7th Cir. 2008) (citation modified); see United\n\fNo. 25-1011 7\n\nStates v. Schneider, 910 F.2d 1569, 1570–71 (7th Cir. 1990). Here,\nwhat Sheikh’s posts meant to those who were threatened and\nthe actions they took in response tend to show that Sheikh\nmade a true threat. See Counterman, 600 U.S. at 74.\n Sheikh makes three objections: that the clinic workers\nlearned about the threat from law enforcement; that they\ndidn’t view the iFunny posts themselves; and that law en-\nforcement encouraged the clinic to implement security\nmeasures. The employees’ lack of first-hand knowledge of the\nposts or their context and the possibility that law enforcement\nencouraged security improvements means that the probative\nvalue of this evidence was diminished. Yet there’s no dispute\nthat law enforcement accurately conveyed the gist of what\nSheikh wrote, and what the workers believed and did as a re-\nsult was still relevant to the seriousness of the threat. See Parr,\n545 F.3d at 501–02 (noting that “the reaction of the target of a\nthreat even when the speaker did not communicate the threat\nto the target” was relevant to the true threat determination).\nOn cross-examination, Sheikh was free to point out the limits\nof these witnesses’ knowledge and law enforcement’s role in\nprompting changes at the clinic. But even imperfect evidence\nis generally admissible. See United States v. McKibbins, 656\nF.3d 707, 711 (7th Cir. 2011) (“The Federal Rules of Evidence\ndo not limit the government to the most probative evidence;\nall relevant evidence is admissible and the Rules define rele-\nvance broadly.”) (citation modified).\n Sheikh’s final argument—that the clinic workers’ testi-\nmony and images were unfairly prejudicial—is undeveloped\nand unsupported by the record. A district court may exclude\nrelevant evidence when the probative value “is substantially\noutweighed by a danger of … unfair prejudice.” Fed. R. Evid.\n\f8 No. 25-1011\n\n403. Because the application of Rule 403 depends heavily on\ncontext, “we give special deference to the district court’s find-\nings and reverse only when no reasonable person could take\nthe view adopted by the trial court.” United States v. Frazier,\n129 F.4th 392, 405 (7th Cir. 2025) (citation modified).\n Evidence can be unfairly prejudicial if it would make it\nlikely that a jury would decide the case based on emotions,\nrather than the evidence presented. See Barber v. City of Chi-\ncago, 725 F.3d 702, 714 (7th Cir. 2013). In this case, however,\nthe clinic workers’ testimony was largely matter-of-fact.\n Even if the district court erred in allowing the workers’\ntestimony and the images, however, the evidence of guilt—\nthe specificity of the initial post, testimony from an iFunny\nuser who interpreted Sheikh’s posts as threats, and Sheikh’s\nsubsequent iFunny conversations and posts expressing a se-\nrious intent—means that any error was harmless. See Smith,\n150 F.4th at 848. The images and clinic workers’ testimony\nwere relevant to the truth of Sheikh’s threat, were not unfairly\nprejudicial, and didn’t turn the tide with the jury given the\nstrength of the government’s case.\n AFFIRMED", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11241169/", "author_raw": "KIRSCH, Circuit Judge"}]}	RIPPLE	KIRSCH	LEE	1		{"RIPPLE": ", Circuit", "KIRSCH": ", Circuit", "LEE": ", Circuit"}	2	0	0	2	null	https://www.courtlistener.com/api/rest/v4/clusters/10774584/	Published	2	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,774,585	NEXT Payment Solutions Inc. v. CLEAResult Consulting, Inc.	2026-01-14	24-1377	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before making the tran- sition, and without telling NEXT, CLEAResult modiﬁed and reﬁned its new program based on the functionality and 2 No.", "parties": "", "opinions": [{"author": "", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 24-1377\nNEXT PAYMENT SOLUTIONS, INC.\n Plaintiff- Appellant,\n v.\n\nCLEARESULT CONSULTING, INC.\n Defendant-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 1:17-cv-08829 — Steven C. Seeger, Judge.\n ____________________\n\n ARGUED NOVEMBER 6, 2024 — DECIDED JANUARY 13, 2026\n ____________________\n\n BeforeBRENNAN, Chief Judge, and KOLAR and\nMALDONADO, Circuit Judges.\n MALDONADO, Circuit Judge. CLEAResult Consulting, Inc.\nhired NEXT Payment Solutions, Inc. to develop appointment\nscheduling software. After a few years of successful partner-\nship and use of NEXT’s application, CLEAResult decided to\nshift to diﬀerent scheduling software. Before making the tran-\nsition, and without telling NEXT, CLEAResult modiﬁed and\nreﬁned its new program based on the functionality and\n\f2 No. 24-1377\n\nfeatures of NEXT’s application. CLEAResult then terminated\nits relationship with NEXT and stopped using its scheduling\ntool.\n NEXT sued CLEAResult for misappropriation of trade se-\ncrets under federal law and unjust enrichment under Illinois\ncommon law. 1 After years of contentious litigation, the dis-\ntrict court entered summary judgment against NEXT on the\ntrade secrets claim because NEXT failed to deﬁne its secrets\nwith enough speciﬁcity. The case moved to pretrial proceed-\nings on the unjust enrichment claim, and the district court\ngranted a motion in limine limiting the scope of the claim.\nNEXT then voluntarily dismissed the claim, and the district\ncourt entered ﬁnal judgment in favor of CLEAResult. We af-\nﬁrm.\n BACKGROUND\nI. Factual Background\n NEXT designs and develops customer service software for\nbusinesses. NEXT’s primary software platform is appropri-\nately called the “NEXT System.” NEXT offers customizable\nversions of the NEXT System for its customers’ business\nneeds.\n CLEAResult provides North American utilities with en-\nergy efficiency programs and services for utility customers.\nAs part of its services, CLEAResult offers utility customers the\nopportunity to schedule in-home appointments for services\nlike home energy-efficiency assessments.\n\n\n\n 1 NEXT asserted several other common law claims that are not rele-\n\nvant to this appeal.\n\fNo. 24-1377 3\n\n In 2014, CLEAResult hired NEXT to develop an online-\nscheduling tool. NEXT worked with CLEAResult to under-\nstand its needs and created a customized software application\nfor booking appointments called the “FAST Tool.”\n The FAST Tool contained a public-facing side, where cus-\ntomers could access their accounts and schedule appoint-\nments, and an internal side, where CLEAResult personnel\ncould manage appointments and access customer infor-\nmation and data. There were also underlying software me-\nchanics, including rules, algorithms, and source code to\nwhich only NEXT had access.\n CLEAResult used the FAST Tool for several years without\nissue. Then in early 2017, CLEAResult acquired a separate\ngreen technology company that had its own cloud-based ap-\nplication, known as the DSMTracker. CLEAResult decided to\nreplace the FAST Tool with that new platform. According to\nCLEAResult, it wanted to analyze how the DSMTracker\nneeded to be refined to meet its functionality needs. So\nCLEAResult launched “Project Renaissance,” an internal\nanalysis of the gaps in the DSMTracker. As part of that effort,\nCLEAResult developers looked at the internal-facing side of\nthe FAST Tool—the feature used by customer service person-\nnel to manage appointments and customer data—to ensure\nthat the DSMTracker covered the same functionality.\n NEXT presents a different picture of Project Renaissance.\nAccording to NEXT, CLEAResult surreptitiously, and with-\nout NEXT’s approval, stole secret information from the FAST\nTool to reverse engineer and replicate its features into the\nDSMTracker. Notably, however, NEXT concedes that\nCLEAResult personnel never had access to the underlying\nprocessing engine or rules software of the FAST Tool. They\n\f4 No. 24-1377\n\nfurther agree that there is no evidence CLEAResult ever ac-\ncessed the FAST Tool’s underlying source code.\n In November 2017, after CLEAResult finished Project Re-\nnaissance and transitioned several customers to the\nDSMTracker, it informed NEXT it was ending their relation-\nship.\nII. Procedural History\n Shortly thereafter, NEXT initiated this lawsuit asserting,\namong other things, claims for misappropriation of trade se-\ncrets under the Defend Trade Secrets Act, 18 U.S.C. §§ 1836 et\nseq. (“DTSA”), and unjust enrichment under Illinois common\nlaw. NEXT alleged that CLEAResult violated the DTSA by\nmisappropriating trade secret information from the FAST\nTool to better the DSMTracker’s functionality. As to unjust\nenrichment, NEXT pled two separate theories of recovery:\nthat CLEAResult refused to pay certain invoices, and that\nCLEAResult had “access to NEXT trade secrets and other pro-\nprietary information” and was unjustly enriched when it\n“misused NEXT’s trade secrets and proprietary information\n… to create competitive systems.”\n Following discovery, CLEAResult twice moved for sum-\nmary judgment on NEXT’s DTSA claim arguing that NEXT\nfailed to identify its software secrets with sufficient specific-\nity. In its first summary judgment ruling, the district court\nagreed with CLEAResult in part that NEXT’s secrets were too\nnonspecific and narrowed the DTSA claim to “those parts of\nthe FAST Tool that were not present in the DSMTracker be-\nfore Defendant transitioned” to its new program.\n Later, the court ordered NEXT to provide more infor-\nmation on the features of the FAST Tool that it contended\n\fNo. 24-1377 5\n\nwere misappropriated and to explain why they were trade se-\ncrets. NEXT produced a spreadsheet identifying a list of\nthirty-four software “modules,” and five “combinations of\nmodules and features” that it said CLEAResult took from the\nFAST Tool. The modules—discussed in more detail below—\nhad titles such as “Online Self Scheduling” and “Dashboard\nClient.” NEXT describes the modules with generic language\nsuch as “manages the inventory of appointments,” “pre-\nsent[s] real-time appointment availability,” and “create[s]\nopen appointment slots, to update appointment availability.”\n CLEAResult, unsatisfied with NEXT’s updated descrip-\ntions, again moved for summary judgment. This time, the dis-\ntrict court granted the motion in full. The court explained that\nNEXT had been given multiple opportunities to identify “spe-\ncific and concrete” misappropriated secrets in its software but\ncame forward with nothing more than “broad descriptions\nand jargon-laden terminology” describing what its software\ndid, not how it did it, which made it “hazy what, exactly,\nNEXT is claiming as its alleged trade secrets.”\n More than a year later—during pretrial proceedings on\nNEXT’s remaining claims—a dispute arose over the scope of\nNEXT’s unjust enrichment claim. In a pretrial status report,\nNEXT asserted for the first time that it intended to bring to\ntrial an independent claim for unjust enrichment based on the\ntheory that CLEAResult misused “other proprietary infor-\nmation” separately and apart from misusing NEXT’s trade se-\ncrets.\n On a motion in limine from CLEAResult, however, the dis-\ntrict court excluded any evidence or argument of misuse of\n“other proprietary information” as a basis for unjust enrich-\nment. The court found that this theory of unjust enrichment\n\f6 No. 24-1377\n\nhad never before been presented as a separate theory from\nmisappropriation of trade secrets. The court held such a late\nchange was improper and that NEXT was, in essence, trying\nto put forth a new theory on the eve of trial as an end-run\naround the dismissal of its DTSA claim.\n After the ruling in limine, NEXT voluntarily dismissed its\nremaining claims with prejudice. It appeals the district court’s\ndismissal of its DTSA claim and the in limine order on its claim\nfor unjust enrichment.\n DISCUSSION\nI. Summary Judgment on NEXT’s DTSA Claim\n We review de novo the district court’s grant of summary\njudgment. REXA, Inc. v. Chester, 42 F.4th 652, 662 (7th Cir.\n2022). Summary judgment is appropriate when, drawing all\nreasonable inferences in the nonmovant’s favor, there is no\ngenuine dispute of material fact, so the moving party is enti-\ntled to judgment as a matter of law. See id.\n To prevail on a DTSA misappropriation claim, a plaintiff\nmust show that (1) their information was a trade secret; (2) it\nwas misappropriated; and (3) it was used in the defendant’s\nbusiness. See Learning Curve Toys, Inc. v. PlayWood Toys, Inc.,\n342 F.3d 714, 721 (7th Cir. 2003) (citations omitted). 2 This case\nturns on the first element: whether the software modules\n\n 2 While this case involves the DTSA, the parties agree that we may\n\nrely on caselaw applying identical state trade secrets statutes (e.g., Illinois,\nWisconsin, and California), which, like the DTSA, are based on the Uni-\nform Trade Secrets Act. See generally Mickey's Linen v. Fischer, No. 17 C\n2154, 2017 WL 3970593, at 8 n.1 (N.D. Ill. Sept. 8, 2017) (collecting cases\ndiscussing the overlap between the DTSA and various other state statutes\nbased on the UTSA).\n\fNo. 24-1377 7\n\nNEXT identified in the FAST Tool constitute protectable trade\nsecrets. Under the DTSA, information qualifies as a “trade se-\ncret” if (1) the owner has taken “reasonable measures” to keep\nit secret, and (2) the information derives independent value\nfrom the fact that it is not generally known and not readily\nascertainable. See 18 U.S.C. § 1839(3); Life Spine, Inc. v. Aegis\nSpine, Inc., 8 F.4th 531, 540 (7th Cir. 2021).\n The parties dispute whether NEXT has described its trade\nsecrets with enough specificity to support a DTSA claim. Our\n“[c]ase law requires a high level of specificity when a plaintiff\nmakes a claim for misappropriation of a trade secret.” REXA,\n42 F.4th at 663 (citations omitted). “[A] plaintiff must show\n‘concrete secrets’ rather than ‘broad areas of technology.’” Id.\nat 662 (quoting Life Spine, 8 F.4th at 540). Whether the plaintiff\nhas provided the requisite level of detail depends on the cir-\ncumstances of each case. At the least, a plaintiff must present\nenough specifics for the fact finder to distinguish between in-\nformation that is generally known and information that is not\nreadily ascertainable and thus qualifies as a statutory secret.\nSee IDX Sys. Corp. v. Epic Sys. Corp., 285 F.3d 581, 584 (7th Cir.\n2002) (“[A] plaintiff must do more than just identify a kind of\ntechnology and then invite the court to hunt through the de-\ntails in search of items meeting the statutory definition.” (cit-\ning Composite Marine Propellers, Inc v. Van Der Woude, 962 F.2d\n1263, 1266 (7th Cir. 1992))).\n To shoulder this burden, NEXT points to its list of thirty-\nfour software modules and five combination modules of its\nFAST Tool program. For each module, NEXT provides a title\nand description of what the feature does, and then it purports\nto identify the secret of its software program that makes each\nmodule work. But NEXT’s descriptions face a fundamental\n\f8 No. 24-1377\n\nproblem: NEXT only ever tells us the end result of what its\nsoftware does, not how it does it. See, e.g., Silvaco Data Sys. v.\nIntel Corp., 184 Cal. App. 4th 210, 221–22 (Cal. App. Ct. 2010)\n(the “finished (compiled) product” of what a software pro-\ngram does is not a trade secret because it is “evident to anyone\nrunning the finished program”), disapproved of on other grounds\nby Kwikset Corp. v. Superior Ct., 51 Cal. 4th 310, 337 (Cal. 2011).\nNEXT does not identify any specific algorithms, source code,\nor methodologies underlying the FAST Tool’s functionality.\nInstead, NEXT defines its modules in vague and generic lan-\nguage that describes the software’s function. This lack of de-\ntail makes it impossible to distinguish between the aspects of\nthe FAST Tool that are generally known and ascertainable,\nand those which NEXT contends are secret and derive value\nfrom being kept as such. See IDX Sys., 285 F.3d at 583–84 (soft-\nware developer’s tender of a “a 43-page description of the\nmethods and processes underlying and the inter-relation-\nships among various features making up IDX's software\npackage” left it “mysterious” what it contended were trade\nsecrets, because it did not separate its purported secrets from\nthe “other information that goes into any software package”).\n Take, for example, the “Online Self Scheduling” module\nused as an exemplar by NEXT in its briefing. NEXT states that\nthis module operates on the public-facing side of the FAST\nTool and displays a calendar highlighting available technician\nappointments that a customer can select. The customer can\nonly schedule an appointment if their pre-entered data meets\ncertain “pre-determined criteria.” NEXT then describes what\nit claims is the trade secret that makes the online self-schedul-\ning module work. But its description uses generic functional\nverbiage that simply describes the process in circular terms. It\nclaims that the module’s “secret” process is that it “manages\n\fNo. 24-1377 9\n\nthe inventory of appointments” by interfacing with numerous\nother modules to “present real-time appointment availabil-\nity” and “pre-set the number of available appointments based\non the customer’s geographic location … [and] the availabil-\nity of technicians.” In short, NEXT describes the “Online Self-\nScheduling” module generically as allowing customers to\nschedule appointments based on existing data in the system.\nBut how the software achieves that process is left unspecified.\n NEXT uses similarly nondescript language for the other\nFAST Tool modules. For example, the “Email & Text Messag-\ning” module is described as distributing notifications and\nalerts to customers about appointments, but the purported\n“secret” behind the module is simply that it “generates auto-\nmated notifications … based on certain triggers.” Other mod-\nules allow CLEAResult personnel to generate PDF documents\nand “track,” “manage,” or “see” appointments and customer\ndata, all through the purported “secret” process of collecting\nand displaying data across different modules and criteria in\nthe systems.\n The descriptions of the combination modules are no more\nspecific. For example, the “FAST Tool Residential Appoint-\nment Management” is said to “permit[] consumers to sched-\nule, cancel, or reschedule appointments online using a public-\nfacing web page that required customers to enter information\nsufficient to automatically determine eligibility or potential\neligibility for a program.”\n None of the above descriptions articulate a concrete secret\nthat derives economic value from being generally unknown\nand not readily ascertainable. It is not a trade secret for a soft-\nware program to manage appointment inventory, schedule\nappointments, collect and display data, send notifications, or\n\f10 No. 24-1377\n\nfill out PDFs. Anybody using the FAST Tool application and\nseeing these features, either on the public-facing or internal\nweb application, would be able to ascertain that the software\nwas acting to perform these tasks. IDX Sys., 285 F.3d at 584\n(“things that any user or passer-by sees at a glance,” such as\nthe appearance of a data-entry screen in a billing software\nprogram, are “exceedingly hard to call trade secrets”). The\nfact that NEXT describes what its software does in generic\nterms that any user can discern means that it has failed to\nidentify any information that might qualify for protection. Id.;\nsee also BondPro Corp. v. Siemens Power Generation, Inc., 463\nF.3d 702, 710 (7th Cir. 2006) (“[A] process described in general\nterms … will usually be widely known and thus not worth\nincurring costs to try to conceal and so not a trade secret.”).\n Put another way, NEXT does exactly what we have said a\ntrade secret plaintiff cannot do: it points to broad areas of soft-\nware technology and asks us to sort out what aspects of that\ntechnology may or may not meet the statutory requirements\nfor protection. But the onus is on NEXT to identify concrete\nsecrets. See REXA, 42 F.4th at 663; IDX Sys., 285 F.3d at 584\n(citing Composite Marine, 962 F.2d at 1266).\n It may be that there is some unknown methodology or\nprocess that allows the FAST Tool to manage inventory, dis-\nplay data, and create appointments. The most likely candi-\ndate would be the FAST Tool’s underlying source code, rules,\nand algorithms. See generally IDX Sys., 285 F.3d at 584 (noting\nthat the algorithms that a software program uses to perform\nfunctions may be trade secrets); Fin. Info. Techs., LLC v. iCon-\ntrol Sys., USA, LLC, 21 F.4th 1267, 1273 (11th Cir. 2021) (“As a\ngeneral matter, software source code is not readily ascertain-\nable and, accordingly, qualifies for trade-secret protection.”).\n\fNo. 24-1377 11\n\n But NEXT has not produced evidence of any such secret\nsource code or unascertainable algorithms. And it even con-\nceded that CLEAResult did not have access to the FAST Tool’s\ncode or processing engine. NEXT is thus left with nothing\nmore than its generic descriptions of what its software does\nin a manner that anybody using it could ascertain. This is not\nenough to send its claims to a jury. See IDX Sys., 285 F.3d at\n584; cf. Silvaco, 184 Cal. App. 4th at 221–22 (contrasting suc-\ncessful claim based on a software’s source code with a failed\nclaim based on the “22 pages of technical verbiage” describ-\ning “various features, functions, and characteristics of the de-\nsign and operation” of the software); Syntel Sterling Best Shores\nMauritius Ltd. v. TriZetto Grp., Inc., 68 F.4th 792 (2d Cir. 2023)\n(plaintiff described its software trade secrets with sufficient\nspecificity where it provided documentation identifying the\nunderlying source code and architecture behind the claimed\nsoftware trade secrets).\n As the district court explained, “[d]escribing the software\nfunctions without disclosing the underlying methods is like\nsaying someone stole your top secret apple pie recipe, but\nnever identifying the secret recipe itself.” NEXT Payment Sols.,\nInc. v. CLEAResult Consulting, Inc., No. 1:17-cv-08829, 2020 WL\n2836778, at 15 (N.D. Ill. May 31, 2020). NEXT’s failure to iden-\ntify the programs, methodology, or processes underlying its\nsoftware makes it impossible for a fact finder to determine\nwhether the functions the FAST Tool performs are protectable\nsecrets. 3\n\n\n 3 To be clear, we do not hold that a plaintiff who brings a claim for\n\nmisappropriation of trade secrets in their software products must always\nprovide their underlying source code or algorithms to survive summary\n\f12 No. 24-1377\n\n NEXT’s counterarguments are unavailing. It first argues\nthat its software modules are trade secrets because they are\nkept on the non-public side of the FAST Tool. NEXT seems to\nbe suggesting (without any case support) that the fact that the\ninternal web application accessed by CLEAResult was not\navailable to the general public necessarily renders the soft-\nware modules on that non-public side a secret. But we are not\naware of any authority holding that “not readily ascertaina-\nble” or “not generally known” means not accessible to the\npublic writ large. NEXT sold its software to clients such as\nCLEAResult, and the functions performed by that software\n(scheduling appointments, managing inventory, etc.) would\nbe obvious and apparent to any client that was using the in-\nternal web application. That the functions are obvious to any\nuser means they do not qualify for protection. See IDX Sys.,\n285 F.3d at 584; see also iControl Sys., 21 F.4th at 1273 (“aspects\n\n\n\njudgment. In practical terms, pointing to source codes or algorithms is of-\nten the most efficient way to identify a protectable secret. See iControl Sys.,\n21 F.4th at 1273; Silvaco, 184 Cal. App. 4th at 221–22. But we do not exclude\nthe possibility that a plaintiff may, under some circumstances, be able to\ncome forward with other kinds of evidence demonstrating that its soft-\nware functions in a manner that is not generally ascertainable and derives\nvalue from being kept secret. See, e.g., Integrated Cash Mgmt. Servs., Inc. v.\nDigital Transactions, Inc., 920 F.2d 171, 174 (2d Cir. 1990) (finding a protect-\nable trade secret in a software package that combined various generic pro-\ngrams where an expert testified that, although each individual program\nwas in the public domain, the architecture of the combined end product\n“could not be readily duplicated without the secret information acquired\nby [plaintiff] through years of research.”). It is enough to say that NEXT\nhas offered nothing from which we can identify a protectable secret here,\nas its generic descriptions of its software functions—the only thing it has\nput forward—are insufficient on their own.\n\fNo. 24-1377 13\n\nof computer software that are readily ascertainable don't\nqualify” for trade secret protection). 4\n Second, NEXT argues that FAST Tool modules, such as its\nappointment scheduling functions, performed something\n“new and valuable.” It asserts that they were tailored to the\nspecific needs of CLEAResult’s utility customers and allowed\nthose customers to be matched with technicians based on real-\ntime appointment availability in set geographic areas.\n We are unpersuaded. We will take it as true that its pro-\ngram, in allowing utility companies to match customers with\ntechnicians to schedule appointments, does something “new\nand valuable”—though we are skeptical of this unsupported\nclaim given the ubiquity of scheduling applications across a\nvariety of industries. But regardless, something being “new\nand valuable” does not itself render it a trade secret. See Sil-\nvaco, 184 Cal. App. 4th at 222 (the finished software product\n“might have distinctive characteristics resulting from that de-\nsign—such as improved performance—[but] they cannot con-\nstitute trade secrets because they are not secret but are evident\nto anyone running the finished program”). Protectable trade\nsecrets must be generally unknown, not readily ascertainable,\nand must be described with specificity. These requirements\nare lacking here.\n\n\n\n\n 4 We acknowledge CLEAResult personnel were subject to nondisclo-\n\nsure agreements in their use of the FAST Tool web application. The exist-\nence of those agreements might be relevant to misappropriation, i.e.,\nwhether CLEAResult personnel could lawfully use what they saw in the\nFAST Tool to make their own software. But here, the issue is not misap-\npropriation but whether there was a protectable trade secret at all.\n\f14 No. 24-1377\n\n In sum, we conclude that NEXT failed to come forward\nwith evidence from which a jury could conclude that its FAST\nTool software modules qualify as trade secrets. The district\ncourt therefore properly entered summary judgment on this\nclaim.\nII. NEXT’s Unjust Enrichment Claim\n We turn next to the district court’s ruling in limine, which\nprecluded NEXT from arguing a theory of unjust enrichment\nbased on misappropriation of “other proprietary infor-\nmation.” We review de novo the district court’s legal conclu-\nsions underlying a ruling in limine, though we review its ulti-\nmate decision for abuse of discretion. United States v. Wade,\n962 F.3d 1004, 1011 (7th Cir. 2020).\n The district court provided several independent grounds\nfor its ruling, but we focus on just one here. Specifically, the\ncourt found that NEXT’s unjust enrichment theory based on\nmisuse of “other proprietary information” was a new theory\nof liability not previously pursued by NEXT, and that it\nwould prejudice CLEAResult and delay the proceedings to al-\nlow NEXT to add the claim after summary judgment. Because\nwe find this provided an adequate basis to grant the motion\nin limine, we do not discuss the court’s alternative holdings.\n District courts enjoy wide discretion to refuse attempts to\nraise new theories of liability at late stages of the case if such\nchanges will prejudice the opposing party or unduly delay\nthe proceedings. See Crest Hill Land Dev., LLC v. City of Joliet,\n396 F.3d 801, 804 (7th Cir. 2005) (citing Fort Howard Paper Co.\nv. Standard Havens, Inc., 901 F.2d 1373, 1380 (7th Cir. 1990))\n(“‘Surprises’ such as new arguments or defense theories prop-\nagated after the completion of discovery and filing of\n\fNo. 24-1377 15\n\nsummary judgment are wisely discouraged.”); Bethany Phar-\nmacal Co. v. QVC, Inc., 241 F.3d 854, 862 (7th Cir. 2001)\n(“[A]llowing [plaintiff] to add [a new claim] would have re-\nquired additional delays in the resolution of the case to allow\n[defendant] to respond to a new theory of liability. We do not\nrequire a district court to tolerate such delays.”); see also Soltys\nv. Costello, 520 F.3d 737, 743 (7th Cir. 2008) (“Eleventh hour\nadditions ... [are] bound to produce delays that burden not\nonly the parties to the litigation but also the judicial system\nand other litigants.” (citation omitted)). The district court was\nfirmly within its discretion in holding that NEXT was improp-\nerly raising a new theory of liability shortly before trial and\nthat allowing it to do so would cause undue delays and prej-\nudice.\n NEXT notably does not make any argument regarding de-\nlay or prejudice but simply asserts that its theory was not new\nat all. It argues it pleaded this theory in the operative com-\nplaint, which alleged that CLEAResult had been “unjustly en-\nriched by having access to NEXT trade secrets and other pro-\nprietary information” and that CLEAResult “misused NEXT’s\ntrade secrets and proprietary information to enable persons and\nentities with no right to have access to NEXT’s trade secrets\nand proprietary information to create competitive sys-\ntems…that [CLEAResult] subsequently used to service [its]\ncustomers.” (emphasis added). As NEXT sees it, these allega-\ntions create two distinct theories of unjust enrichment: one\nbased on misuse of trade secrets, one based on misuse of\n“other proprietary information.” NEXT thus maintains that it\nalways had a separate claim for unjust enrichment based on\nmisuse of proprietary information, and that it should have\nbeen allowed to proceed to trial on that theory irrespective of\nwhether it could maintain a trade secret claim.\n\f16 No. 24-1377\n\n We are not convinced. NEXT’s argument misrepresents\nhow its amended complaint reads as a whole. Cf. Scott v. City\nof Chicago, 195 F.3d 950, 952 (7th Cir. 1999) (“Whether a com-\nplaint provides notice [of a claim], however, is determined by\nlooking at the complaint as a whole.”). NEXT’s complaint\nnever identifies any “proprietary information” that is sepa-\nrate and distinct from its claimed trade secrets. The term “pro-\nprietary information” only appears four times, and three\ntimes it is used in the unjust enrichment claim in conjunction\nwith trade secrets in the phrase “trade secrets and proprietary\ninformation.” The other time NEXT refers to its “proprietary\ninformation,” it does so in the context of describing its “NEXT\nSystem Back End,” which is the software system that NEXT\nidentifies throughout the complaint as its protectable trade se-\ncret. In other words, when the complaint refers to “proprie-\ntary information,” it always does so in tandem with its trade\nsecrets. It never distinguishes “other proprietary infor-\nmation” as representing some category of information sepa-\nrate and apart from its trade secrets. There is thus no indica-\ntion in the complaint that NEXT intended a free-standing\nclaim based on misuse of proprietary information apart from\nits trade secrets.\n And if NEXT intended to plead an independent unjust en-\nrichment claim based on some proprietary information dis-\ntinct from its trade secrets, it never made that position known\nin the lengthy history of this case. The district court’s in limine\nruling provides that history in exacting detail, and we need\nnot recite it all again. See NEXT Payment Sols., Inc. v. CLEARe-\nsult Consulting, Inc., No. 1:17-cv-08829, 2023 WL 7196125, at\n2–13. (N.D. Ill. Apr. 17, 2023). There were multiple occasions\nduring discovery and the summary judgment proceedings\nwhere NEXT argued (expressly or implicitly) that the scope\n\fNo. 24-1377 17\n\nof its unjust enrichment claim included, at most, two theories:\none based on unpaid invoices, the other based on misappro-\npriation of trade secrets. The district court itself confirmed\nthis understanding in its first summary judgment ruling, de-\nscribing NEXT’s unjust enrichment claims as seeking “redress\nfor Defendant’s misappropriation of trade secrets related to\nthe FAST Tool and failure to pay Plaintiff’s invoices for use of\nthe FAST Tool.” It was only after the court granted summary\njudgment and dismissed NEXT’s trade secrets claim that it\nsought to invent a new theory based on some other “propriety\ninformation.”\n In sum, the district court reasonably concluded that NEXT\nwas attempting to raise a new and undeveloped theory of li-\nability based on other proprietary information that it had\nnever previously presented nor even identified. It was within\nits discretion to exclude that new theory of liability on the\ngrounds that it would prejudice CLEAResult and delay the\ntrial. The court did not abuse its discretion in precluding\nNEXT from arguing this theory at trial.\n CONCLUSION\n For the foregoing reasons, we AFFIRM the judgment of\nthe district court.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11241170/", "author_raw": ""}, {"author": "", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 24-1377\nNEXT PAYMENT SOLUTIONS, INC.\n Plaintiff- Appellant,\n v.\n\nCLEARESULT CONSULTING, INC.\n Defendant-Appellee.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 1:17-cv-08829 — Steven C. Seeger, Judge.\n ____________________\n\n ARGUED NOVEMBER 6, 2024 — DECIDED JANUARY 13, 2026\n ____________________\n\n BeforeBRENNAN, Chief Judge, and KOLAR and\nMALDONADO, Circuit Judges.\n MALDONADO, Circuit Judge. CLEAResult Consulting, Inc.\nhired NEXT Payment Solutions, Inc. to develop appointment\nscheduling software. After a few years of successful partner-\nship and use of NEXT’s application, CLEAResult decided to\nshift to diﬀerent scheduling software. Before making the tran-\nsition, and without telling NEXT, CLEAResult modiﬁed and\nreﬁned its new program based on the functionality and\n\f2 No. 24-1377\n\nfeatures of NEXT’s application. CLEAResult then terminated\nits relationship with NEXT and stopped using its scheduling\ntool.\n NEXT sued CLEAResult for misappropriation of trade se-\ncrets under federal law and unjust enrichment under Illinois\ncommon law. 1 After years of contentious litigation, the dis-\ntrict court entered summary judgment against NEXT on the\ntrade secrets claim because NEXT failed to deﬁne its secrets\nwith enough speciﬁcity. The case moved to pretrial proceed-\nings on the unjust enrichment claim, and the district court\ngranted a motion in limine limiting the scope of the claim.\nNEXT then voluntarily dismissed the claim, and the district\ncourt entered ﬁnal judgment in favor of CLEAResult. We af-\nﬁrm.\n BACKGROUND\nI. Factual Background\n NEXT designs and develops customer service software for\nbusinesses. NEXT’s primary software platform is appropri-\nately called the “NEXT System.” NEXT offers customizable\nversions of the NEXT System for its customers’ business\nneeds.\n CLEAResult provides North American utilities with en-\nergy efficiency programs and services for utility customers.\nAs part of its services, CLEAResult offers utility customers the\nopportunity to schedule in-home appointments for services\nlike home energy-efficiency assessments.\n\n\n\n 1 NEXT asserted several other common law claims that are not rele-\n\nvant to this appeal.\n\fNo. 24-1377 3\n\n In 2014, CLEAResult hired NEXT to develop an online-\nscheduling tool. NEXT worked with CLEAResult to under-\nstand its needs and created a customized software application\nfor booking appointments called the “FAST Tool.”\n The FAST Tool contained a public-facing side, where cus-\ntomers could access their accounts and schedule appoint-\nments, and an internal side, where CLEAResult personnel\ncould manage appointments and access customer infor-\nmation and data. There were also underlying software me-\nchanics, including rules, algorithms, and source code to\nwhich only NEXT had access.\n CLEAResult used the FAST Tool for several years without\nissue. Then in early 2017, CLEAResult acquired a separate\ngreen technology company that had its own cloud-based ap-\nplication, known as the DSMTracker. CLEAResult decided to\nreplace the FAST Tool with that new platform. According to\nCLEAResult, it wanted to analyze how the DSMTracker\nneeded to be refined to meet its functionality needs. So\nCLEAResult launched “Project Renaissance,” an internal\nanalysis of the gaps in the DSMTracker. As part of that effort,\nCLEAResult developers looked at the internal-facing side of\nthe FAST Tool—the feature used by customer service person-\nnel to manage appointments and customer data—to ensure\nthat the DSMTracker covered the same functionality.\n NEXT presents a different picture of Project Renaissance.\nAccording to NEXT, CLEAResult surreptitiously, and with-\nout NEXT’s approval, stole secret information from the FAST\nTool to reverse engineer and replicate its features into the\nDSMTracker. Notably, however, NEXT concedes that\nCLEAResult personnel never had access to the underlying\nprocessing engine or rules software of the FAST Tool. They\n\f4 No. 24-1377\n\nfurther agree that there is no evidence CLEAResult ever ac-\ncessed the FAST Tool’s underlying source code.\n In November 2017, after CLEAResult finished Project Re-\nnaissance and transitioned several customers to the\nDSMTracker, it informed NEXT it was ending their relation-\nship.\nII. Procedural History\n Shortly thereafter, NEXT initiated this lawsuit asserting,\namong other things, claims for misappropriation of trade se-\ncrets under the Defend Trade Secrets Act, 18 U.S.C. §§ 1836 et\nseq. (“DTSA”), and unjust enrichment under Illinois common\nlaw. NEXT alleged that CLEAResult violated the DTSA by\nmisappropriating trade secret information from the FAST\nTool to better the DSMTracker’s functionality. As to unjust\nenrichment, NEXT pled two separate theories of recovery:\nthat CLEAResult refused to pay certain invoices, and that\nCLEAResult had “access to NEXT trade secrets and other pro-\nprietary information” and was unjustly enriched when it\n“misused NEXT’s trade secrets and proprietary information\n… to create competitive systems.”\n Following discovery, CLEAResult twice moved for sum-\nmary judgment on NEXT’s DTSA claim arguing that NEXT\nfailed to identify its software secrets with sufficient specific-\nity. In its first summary judgment ruling, the district court\nagreed with CLEAResult in part that NEXT’s secrets were too\nnonspecific and narrowed the DTSA claim to “those parts of\nthe FAST Tool that were not present in the DSMTracker be-\nfore Defendant transitioned” to its new program.\n Later, the court ordered NEXT to provide more infor-\nmation on the features of the FAST Tool that it contended\n\fNo. 24-1377 5\n\nwere misappropriated and to explain why they were trade se-\ncrets. NEXT produced a spreadsheet identifying a list of\nthirty-four software “modules,” and five “combinations of\nmodules and features” that it said CLEAResult took from the\nFAST Tool. The modules—discussed in more detail below—\nhad titles such as “Online Self Scheduling” and “Dashboard\nClient.” NEXT describes the modules with generic language\nsuch as “manages the inventory of appointments,” “pre-\nsent[s] real-time appointment availability,” and “create[s]\nopen appointment slots, to update appointment availability.”\n CLEAResult, unsatisfied with NEXT’s updated descrip-\ntions, again moved for summary judgment. This time, the dis-\ntrict court granted the motion in full. The court explained that\nNEXT had been given multiple opportunities to identify “spe-\ncific and concrete” misappropriated secrets in its software but\ncame forward with nothing more than “broad descriptions\nand jargon-laden terminology” describing what its software\ndid, not how it did it, which made it “hazy what, exactly,\nNEXT is claiming as its alleged trade secrets.”\n More than a year later—during pretrial proceedings on\nNEXT’s remaining claims—a dispute arose over the scope of\nNEXT’s unjust enrichment claim. In a pretrial status report,\nNEXT asserted for the first time that it intended to bring to\ntrial an independent claim for unjust enrichment based on the\ntheory that CLEAResult misused “other proprietary infor-\nmation” separately and apart from misusing NEXT’s trade se-\ncrets.\n On a motion in limine from CLEAResult, however, the dis-\ntrict court excluded any evidence or argument of misuse of\n“other proprietary information” as a basis for unjust enrich-\nment. The court found that this theory of unjust enrichment\n\f6 No. 24-1377\n\nhad never before been presented as a separate theory from\nmisappropriation of trade secrets. The court held such a late\nchange was improper and that NEXT was, in essence, trying\nto put forth a new theory on the eve of trial as an end-run\naround the dismissal of its DTSA claim.\n After the ruling in limine, NEXT voluntarily dismissed its\nremaining claims with prejudice. It appeals the district court’s\ndismissal of its DTSA claim and the in limine order on its claim\nfor unjust enrichment.\n DISCUSSION\nI. Summary Judgment on NEXT’s DTSA Claim\n We review de novo the district court’s grant of summary\njudgment. REXA, Inc. v. Chester, 42 F.4th 652, 662 (7th Cir.\n2022). Summary judgment is appropriate when, drawing all\nreasonable inferences in the nonmovant’s favor, there is no\ngenuine dispute of material fact, so the moving party is enti-\ntled to judgment as a matter of law. See id.\n To prevail on a DTSA misappropriation claim, a plaintiff\nmust show that (1) their information was a trade secret; (2) it\nwas misappropriated; and (3) it was used in the defendant’s\nbusiness. See Learning Curve Toys, Inc. v. PlayWood Toys, Inc.,\n342 F.3d 714, 721 (7th Cir. 2003) (citations omitted). 2 This case\nturns on the first element: whether the software modules\n\n 2 While this case involves the DTSA, the parties agree that we may\n\nrely on caselaw applying identical state trade secrets statutes (e.g., Illinois,\nWisconsin, and California), which, like the DTSA, are based on the Uni-\nform Trade Secrets Act. See generally Mickey's Linen v. Fischer, No. 17 C\n2154, 2017 WL 3970593, at 8 n.1 (N.D. Ill. Sept. 8, 2017) (collecting cases\ndiscussing the overlap between the DTSA and various other state statutes\nbased on the UTSA).\n\fNo. 24-1377 7\n\nNEXT identified in the FAST Tool constitute protectable trade\nsecrets. Under the DTSA, information qualifies as a “trade se-\ncret” if (1) the owner has taken “reasonable measures” to keep\nit secret, and (2) the information derives independent value\nfrom the fact that it is not generally known and not readily\nascertainable. See 18 U.S.C. § 1839(3); Life Spine, Inc. v. Aegis\nSpine, Inc., 8 F.4th 531, 540 (7th Cir. 2021).\n The parties dispute whether NEXT has described its trade\nsecrets with enough specificity to support a DTSA claim. Our\n“[c]ase law requires a high level of specificity when a plaintiff\nmakes a claim for misappropriation of a trade secret.” REXA,\n42 F.4th at 663 (citations omitted). “[A] plaintiff must show\n‘concrete secrets’ rather than ‘broad areas of technology.’” Id.\nat 662 (quoting Life Spine, 8 F.4th at 540). Whether the plaintiff\nhas provided the requisite level of detail depends on the cir-\ncumstances of each case. At the least, a plaintiff must present\nenough specifics for the fact finder to distinguish between in-\nformation that is generally known and information that is not\nreadily ascertainable and thus qualifies as a statutory secret.\nSee IDX Sys. Corp. v. Epic Sys. Corp., 285 F.3d 581, 584 (7th Cir.\n2002) (“[A] plaintiff must do more than just identify a kind of\ntechnology and then invite the court to hunt through the de-\ntails in search of items meeting the statutory definition.” (cit-\ning Composite Marine Propellers, Inc v. Van Der Woude, 962 F.2d\n1263, 1266 (7th Cir. 1992))).\n To shoulder this burden, NEXT points to its list of thirty-\nfour software modules and five combination modules of its\nFAST Tool program. For each module, NEXT provides a title\nand description of what the feature does, and then it purports\nto identify the secret of its software program that makes each\nmodule work. But NEXT’s descriptions face a fundamental\n\f8 No. 24-1377\n\nproblem: NEXT only ever tells us the end result of what its\nsoftware does, not how it does it. See, e.g., Silvaco Data Sys. v.\nIntel Corp., 184 Cal. App. 4th 210, 221–22 (Cal. App. Ct. 2010)\n(the “finished (compiled) product” of what a software pro-\ngram does is not a trade secret because it is “evident to anyone\nrunning the finished program”), disapproved of on other grounds\nby Kwikset Corp. v. Superior Ct., 51 Cal. 4th 310, 337 (Cal. 2011).\nNEXT does not identify any specific algorithms, source code,\nor methodologies underlying the FAST Tool’s functionality.\nInstead, NEXT defines its modules in vague and generic lan-\nguage that describes the software’s function. This lack of de-\ntail makes it impossible to distinguish between the aspects of\nthe FAST Tool that are generally known and ascertainable,\nand those which NEXT contends are secret and derive value\nfrom being kept as such. See IDX Sys., 285 F.3d at 583–84 (soft-\nware developer’s tender of a “a 43-page description of the\nmethods and processes underlying and the inter-relation-\nships among various features making up IDX's software\npackage” left it “mysterious” what it contended were trade\nsecrets, because it did not separate its purported secrets from\nthe “other information that goes into any software package”).\n Take, for example, the “Online Self Scheduling” module\nused as an exemplar by NEXT in its briefing. NEXT states that\nthis module operates on the public-facing side of the FAST\nTool and displays a calendar highlighting available technician\nappointments that a customer can select. The customer can\nonly schedule an appointment if their pre-entered data meets\ncertain “pre-determined criteria.” NEXT then describes what\nit claims is the trade secret that makes the online self-schedul-\ning module work. But its description uses generic functional\nverbiage that simply describes the process in circular terms. It\nclaims that the module’s “secret” process is that it “manages\n\fNo. 24-1377 9\n\nthe inventory of appointments” by interfacing with numerous\nother modules to “present real-time appointment availabil-\nity” and “pre-set the number of available appointments based\non the customer’s geographic location … [and] the availabil-\nity of technicians.” In short, NEXT describes the “Online Self-\nScheduling” module generically as allowing customers to\nschedule appointments based on existing data in the system.\nBut how the software achieves that process is left unspecified.\n NEXT uses similarly nondescript language for the other\nFAST Tool modules. For example, the “Email & Text Messag-\ning” module is described as distributing notifications and\nalerts to customers about appointments, but the purported\n“secret” behind the module is simply that it “generates auto-\nmated notifications … based on certain triggers.” Other mod-\nules allow CLEAResult personnel to generate PDF documents\nand “track,” “manage,” or “see” appointments and customer\ndata, all through the purported “secret” process of collecting\nand displaying data across different modules and criteria in\nthe systems.\n The descriptions of the combination modules are no more\nspecific. For example, the “FAST Tool Residential Appoint-\nment Management” is said to “permit[] consumers to sched-\nule, cancel, or reschedule appointments online using a public-\nfacing web page that required customers to enter information\nsufficient to automatically determine eligibility or potential\neligibility for a program.”\n None of the above descriptions articulate a concrete secret\nthat derives economic value from being generally unknown\nand not readily ascertainable. It is not a trade secret for a soft-\nware program to manage appointment inventory, schedule\nappointments, collect and display data, send notifications, or\n\f10 No. 24-1377\n\nfill out PDFs. Anybody using the FAST Tool application and\nseeing these features, either on the public-facing or internal\nweb application, would be able to ascertain that the software\nwas acting to perform these tasks. IDX Sys., 285 F.3d at 584\n(“things that any user or passer-by sees at a glance,” such as\nthe appearance of a data-entry screen in a billing software\nprogram, are “exceedingly hard to call trade secrets”). The\nfact that NEXT describes what its software does in generic\nterms that any user can discern means that it has failed to\nidentify any information that might qualify for protection. Id.;\nsee also BondPro Corp. v. Siemens Power Generation, Inc., 463\nF.3d 702, 710 (7th Cir. 2006) (“[A] process described in general\nterms … will usually be widely known and thus not worth\nincurring costs to try to conceal and so not a trade secret.”).\n Put another way, NEXT does exactly what we have said a\ntrade secret plaintiff cannot do: it points to broad areas of soft-\nware technology and asks us to sort out what aspects of that\ntechnology may or may not meet the statutory requirements\nfor protection. But the onus is on NEXT to identify concrete\nsecrets. See REXA, 42 F.4th at 663; IDX Sys., 285 F.3d at 584\n(citing Composite Marine, 962 F.2d at 1266).\n It may be that there is some unknown methodology or\nprocess that allows the FAST Tool to manage inventory, dis-\nplay data, and create appointments. The most likely candi-\ndate would be the FAST Tool’s underlying source code, rules,\nand algorithms. See generally IDX Sys., 285 F.3d at 584 (noting\nthat the algorithms that a software program uses to perform\nfunctions may be trade secrets); Fin. Info. Techs., LLC v. iCon-\ntrol Sys., USA, LLC, 21 F.4th 1267, 1273 (11th Cir. 2021) (“As a\ngeneral matter, software source code is not readily ascertain-\nable and, accordingly, qualifies for trade-secret protection.”).\n\fNo. 24-1377 11\n\n But NEXT has not produced evidence of any such secret\nsource code or unascertainable algorithms. And it even con-\nceded that CLEAResult did not have access to the FAST Tool’s\ncode or processing engine. NEXT is thus left with nothing\nmore than its generic descriptions of what its software does\nin a manner that anybody using it could ascertain. This is not\nenough to send its claims to a jury. See IDX Sys., 285 F.3d at\n584; cf. Silvaco, 184 Cal. App. 4th at 221–22 (contrasting suc-\ncessful claim based on a software’s source code with a failed\nclaim based on the “22 pages of technical verbiage” describ-\ning “various features, functions, and characteristics of the de-\nsign and operation” of the software); Syntel Sterling Best Shores\nMauritius Ltd. v. TriZetto Grp., Inc., 68 F.4th 792 (2d Cir. 2023)\n(plaintiff described its software trade secrets with sufficient\nspecificity where it provided documentation identifying the\nunderlying source code and architecture behind the claimed\nsoftware trade secrets).\n As the district court explained, “[d]escribing the software\nfunctions without disclosing the underlying methods is like\nsaying someone stole your top secret apple pie recipe, but\nnever identifying the secret recipe itself.” NEXT Payment Sols.,\nInc. v. CLEAResult Consulting, Inc., No. 1:17-cv-08829, 2020 WL\n2836778, at 15 (N.D. Ill. May 31, 2020). NEXT’s failure to iden-\ntify the programs, methodology, or processes underlying its\nsoftware makes it impossible for a fact finder to determine\nwhether the functions the FAST Tool performs are protectable\nsecrets. 3\n\n\n 3 To be clear, we do not hold that a plaintiff who brings a claim for\n\nmisappropriation of trade secrets in their software products must always\nprovide their underlying source code or algorithms to survive summary\n\f12 No. 24-1377\n\n NEXT’s counterarguments are unavailing. It first argues\nthat its software modules are trade secrets because they are\nkept on the non-public side of the FAST Tool. NEXT seems to\nbe suggesting (without any case support) that the fact that the\ninternal web application accessed by CLEAResult was not\navailable to the general public necessarily renders the soft-\nware modules on that non-public side a secret. But we are not\naware of any authority holding that “not readily ascertaina-\nble” or “not generally known” means not accessible to the\npublic writ large. NEXT sold its software to clients such as\nCLEAResult, and the functions performed by that software\n(scheduling appointments, managing inventory, etc.) would\nbe obvious and apparent to any client that was using the in-\nternal web application. That the functions are obvious to any\nuser means they do not qualify for protection. See IDX Sys.,\n285 F.3d at 584; see also iControl Sys., 21 F.4th at 1273 (“aspects\n\n\n\njudgment. In practical terms, pointing to source codes or algorithms is of-\nten the most efficient way to identify a protectable secret. See iControl Sys.,\n21 F.4th at 1273; Silvaco, 184 Cal. App. 4th at 221–22. But we do not exclude\nthe possibility that a plaintiff may, under some circumstances, be able to\ncome forward with other kinds of evidence demonstrating that its soft-\nware functions in a manner that is not generally ascertainable and derives\nvalue from being kept secret. See, e.g., Integrated Cash Mgmt. Servs., Inc. v.\nDigital Transactions, Inc., 920 F.2d 171, 174 (2d Cir. 1990) (finding a protect-\nable trade secret in a software package that combined various generic pro-\ngrams where an expert testified that, although each individual program\nwas in the public domain, the architecture of the combined end product\n“could not be readily duplicated without the secret information acquired\nby [plaintiff] through years of research.”). It is enough to say that NEXT\nhas offered nothing from which we can identify a protectable secret here,\nas its generic descriptions of its software functions—the only thing it has\nput forward—are insufficient on their own.\n\fNo. 24-1377 13\n\nof computer software that are readily ascertainable don't\nqualify” for trade secret protection). 4\n Second, NEXT argues that FAST Tool modules, such as its\nappointment scheduling functions, performed something\n“new and valuable.” It asserts that they were tailored to the\nspecific needs of CLEAResult’s utility customers and allowed\nthose customers to be matched with technicians based on real-\ntime appointment availability in set geographic areas.\n We are unpersuaded. We will take it as true that its pro-\ngram, in allowing utility companies to match customers with\ntechnicians to schedule appointments, does something “new\nand valuable”—though we are skeptical of this unsupported\nclaim given the ubiquity of scheduling applications across a\nvariety of industries. But regardless, something being “new\nand valuable” does not itself render it a trade secret. See Sil-\nvaco, 184 Cal. App. 4th at 222 (the finished software product\n“might have distinctive characteristics resulting from that de-\nsign—such as improved performance—[but] they cannot con-\nstitute trade secrets because they are not secret but are evident\nto anyone running the finished program”). Protectable trade\nsecrets must be generally unknown, not readily ascertainable,\nand must be described with specificity. These requirements\nare lacking here.\n\n\n\n\n 4 We acknowledge CLEAResult personnel were subject to nondisclo-\n\nsure agreements in their use of the FAST Tool web application. The exist-\nence of those agreements might be relevant to misappropriation, i.e.,\nwhether CLEAResult personnel could lawfully use what they saw in the\nFAST Tool to make their own software. But here, the issue is not misap-\npropriation but whether there was a protectable trade secret at all.\n\f14 No. 24-1377\n\n In sum, we conclude that NEXT failed to come forward\nwith evidence from which a jury could conclude that its FAST\nTool software modules qualify as trade secrets. The district\ncourt therefore properly entered summary judgment on this\nclaim.\nII. NEXT’s Unjust Enrichment Claim\n We turn next to the district court’s ruling in limine, which\nprecluded NEXT from arguing a theory of unjust enrichment\nbased on misappropriation of “other proprietary infor-\nmation.” We review de novo the district court’s legal conclu-\nsions underlying a ruling in limine, though we review its ulti-\nmate decision for abuse of discretion. United States v. Wade,\n962 F.3d 1004, 1011 (7th Cir. 2020).\n The district court provided several independent grounds\nfor its ruling, but we focus on just one here. Specifically, the\ncourt found that NEXT’s unjust enrichment theory based on\nmisuse of “other proprietary information” was a new theory\nof liability not previously pursued by NEXT, and that it\nwould prejudice CLEAResult and delay the proceedings to al-\nlow NEXT to add the claim after summary judgment. Because\nwe find this provided an adequate basis to grant the motion\nin limine, we do not discuss the court’s alternative holdings.\n District courts enjoy wide discretion to refuse attempts to\nraise new theories of liability at late stages of the case if such\nchanges will prejudice the opposing party or unduly delay\nthe proceedings. See Crest Hill Land Dev., LLC v. City of Joliet,\n396 F.3d 801, 804 (7th Cir. 2005) (citing Fort Howard Paper Co.\nv. Standard Havens, Inc., 901 F.2d 1373, 1380 (7th Cir. 1990))\n(“‘Surprises’ such as new arguments or defense theories prop-\nagated after the completion of discovery and filing of\n\fNo. 24-1377 15\n\nsummary judgment are wisely discouraged.”); Bethany Phar-\nmacal Co. v. QVC, Inc., 241 F.3d 854, 862 (7th Cir. 2001)\n(“[A]llowing [plaintiff] to add [a new claim] would have re-\nquired additional delays in the resolution of the case to allow\n[defendant] to respond to a new theory of liability. We do not\nrequire a district court to tolerate such delays.”); see also Soltys\nv. Costello, 520 F.3d 737, 743 (7th Cir. 2008) (“Eleventh hour\nadditions ... [are] bound to produce delays that burden not\nonly the parties to the litigation but also the judicial system\nand other litigants.” (citation omitted)). The district court was\nfirmly within its discretion in holding that NEXT was improp-\nerly raising a new theory of liability shortly before trial and\nthat allowing it to do so would cause undue delays and prej-\nudice.\n NEXT notably does not make any argument regarding de-\nlay or prejudice but simply asserts that its theory was not new\nat all. It argues it pleaded this theory in the operative com-\nplaint, which alleged that CLEAResult had been “unjustly en-\nriched by having access to NEXT trade secrets and other pro-\nprietary information” and that CLEAResult “misused NEXT’s\ntrade secrets and proprietary information to enable persons and\nentities with no right to have access to NEXT’s trade secrets\nand proprietary information to create competitive sys-\ntems…that [CLEAResult] subsequently used to service [its]\ncustomers.” (emphasis added). As NEXT sees it, these allega-\ntions create two distinct theories of unjust enrichment: one\nbased on misuse of trade secrets, one based on misuse of\n“other proprietary information.” NEXT thus maintains that it\nalways had a separate claim for unjust enrichment based on\nmisuse of proprietary information, and that it should have\nbeen allowed to proceed to trial on that theory irrespective of\nwhether it could maintain a trade secret claim.\n\f16 No. 24-1377\n\n We are not convinced. NEXT’s argument misrepresents\nhow its amended complaint reads as a whole. Cf. Scott v. City\nof Chicago, 195 F.3d 950, 952 (7th Cir. 1999) (“Whether a com-\nplaint provides notice [of a claim], however, is determined by\nlooking at the complaint as a whole.”). NEXT’s complaint\nnever identifies any “proprietary information” that is sepa-\nrate and distinct from its claimed trade secrets. The term “pro-\nprietary information” only appears four times, and three\ntimes it is used in the unjust enrichment claim in conjunction\nwith trade secrets in the phrase “trade secrets and proprietary\ninformation.” The other time NEXT refers to its “proprietary\ninformation,” it does so in the context of describing its “NEXT\nSystem Back End,” which is the software system that NEXT\nidentifies throughout the complaint as its protectable trade se-\ncret. In other words, when the complaint refers to “proprie-\ntary information,” it always does so in tandem with its trade\nsecrets. It never distinguishes “other proprietary infor-\nmation” as representing some category of information sepa-\nrate and apart from its trade secrets. There is thus no indica-\ntion in the complaint that NEXT intended a free-standing\nclaim based on misuse of proprietary information apart from\nits trade secrets.\n And if NEXT intended to plead an independent unjust en-\nrichment claim based on some proprietary information dis-\ntinct from its trade secrets, it never made that position known\nin the lengthy history of this case. The district court’s in limine\nruling provides that history in exacting detail, and we need\nnot recite it all again. See NEXT Payment Sols., Inc. v. CLEARe-\nsult Consulting, Inc., No. 1:17-cv-08829, 2023 WL 7196125, at\n2–13. (N.D. Ill. Apr. 17, 2023). There were multiple occasions\nduring discovery and the summary judgment proceedings\nwhere NEXT argued (expressly or implicitly) that the scope\n\fNo. 24-1377 17\n\nof its unjust enrichment claim included, at most, two theories:\none based on unpaid invoices, the other based on misappro-\npriation of trade secrets. The district court itself confirmed\nthis understanding in its first summary judgment ruling, de-\nscribing NEXT’s unjust enrichment claims as seeking “redress\nfor Defendant’s misappropriation of trade secrets related to\nthe FAST Tool and failure to pay Plaintiff’s invoices for use of\nthe FAST Tool.” It was only after the court granted summary\njudgment and dismissed NEXT’s trade secrets claim that it\nsought to invent a new theory based on some other “propriety\ninformation.”\n In sum, the district court reasonably concluded that NEXT\nwas attempting to raise a new and undeveloped theory of li-\nability based on other proprietary information that it had\nnever previously presented nor even identified. It was within\nits discretion to exclude that new theory of liability on the\ngrounds that it would prejudice CLEAResult and delay the\ntrial. The court did not abuse its discretion in precluding\nNEXT from arguing this theory at trial.\n CONCLUSION\n For the foregoing reasons, we AFFIRM the judgment of\nthe district court.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11241170/", "author_raw": ""}]}		TRAN SITION	WITHOUT TELLING NEXT	0		{}	2	0	0	2	null	https://www.courtlistener.com/api/rest/v4/clusters/10774585/	Published	2	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,775,090	Jaryan Gills v. Robert Hamilton	2026-01-15	24-2898	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before BRENNAN, Chief Judge, and KIRSCH and JACKSON- AKIWUMI, Circuit Judges.", "parties": "", "opinions": [{"author": "KIRSCH, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 24-2898\nJARYAN GILLS,\n Plaintiff-Appellant,\n v.\n\nROBERT HAMILTON, et al.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court for the\n Central District of Illinois\n No. 4:21-cv-4011 — Colleen R. Lawless, Judge.\n ____________________\n\n ARGUED SEPTEMBER 11, 2025 — DECIDED JANUARY 15, 2026\n ____________________\n\n Before BRENNAN, Chief Judge, and KIRSCH and JACKSON-\nAKIWUMI, Circuit Judges.\n KIRSCH, Circuit Judge. Jaryan Gills alleges that he was\nforced to live in wretched conditions without a sink or toilet\nat the East Moline Correctional Center after being assaulted\nby another inmate (resulting in a broken arm, among other\ninjuries). He further alleges that several guards wouldn’t let\nhim use the bathroom for long stretches and that medical care\nwas often delayed or substandard. He sued the prison’s\n\f2 No. 24-2898\n\ndoctor along with other oﬃcials under 42 U.S.C. § 1983, alleg-\ning that they violated the Eighth Amendment based on his cell\nconditions and medical treatment. The district court granted\ndefendants’ motions for summary judgment. Because Gills\ncannot show that defendants acted unreasonably given what\nthey knew, we aﬃrm.\n I\n While the events that follow are contested, we recite the\nfacts in the light most favorable to Jaryan Gills, as we must at\nthe summary judgment stage. Torres v. Madrid, 592 U.S. 306,\n309 (2021). In February 2020, Gills was in the common area at\nthe East Moline Correctional Center (EMCC) when another\ninmate punched him in the face and broke his arm. He was\ntaken by ambulance to the emergency room and over the next\nweek underwent two operations—surgeons replaced part of\nGills’s elbow, repaired a ligament, and inserted pins to stabi-\nlize the joint. A week after the assault, an EMCC committee\nconcluded that Gills should be disciplined, and sentenced\nhim to a month in segregated confinement. The Illinois De-\npartment of Corrections eventually recommended—in re-\nsponse to Gills’s grievance filing—that the disciplinary report\nbe expunged because it was not substantiated.\n When he returned to the prison and for the next 31 days,\nGills was housed in a medical segregation cell inside of the\nEMCC’s healthcare unit. The cell didn’t have a sink, toilet, or\nother source of running water, and Gills was locked inside.\nHe depended on prison staff to let him go to the bathroom.\nOnly certain officers were authorized to escort inmates, and\nthey were supposed to make the rounds every 30 minutes. As\na stopgap, Gills was also given portable urinals and waste\nbags to use in his cell if necessary.\n\fNo. 24-2898 3\n\n Gills had trouble accessing the bathroom and sometimes\ncouldn’t wait for guards to let him out. When guards refused\nto allow him out or didn’t arrive in time, Gills occasionally\nhad to relieve himself in his cell. There were other problems,\ntoo. One of Gills’s surgeons told him to keep his arm elevated\nand apply ice, but Gills wasn’t regularly given ice and the\ncell’s limited furnishings made it difficult to keep his arm el-\nevated. Additionally, a nurse delayed giving him medication\nand he was only able to shower a handful of times.\n Dr. William Rankin was the Medical Director at EMCC\nwhile Gills was recovering from his surgeries. When Gills\nwanted a pad for his sling, Dr. Rankin ordered one, but it took\nmonths to arrive. Similarly, Gills didn’t receive adequate\nphysical therapy in the aftermath of his surgeries even though\nDr. Rankin ordered the sessions. While hardware in Gills’s\narm was supposed to be removed within three months of sur-\ngery, it was still there a year later. Gills also complained about\nother health issues—headaches, heartburn, and bloody\nstools—but neither Dr. Rankin nor other prison staff treated\nthose conditions or did so more slowly than Gills wanted.\n Gills filed this § 1983 action against Dr. Rankin and other\nprison officials, asserting Eighth Amendment claims based on\nhis cell conditions and medical treatment, a related conspir-\nacy claim, and (under Illinois law) intentional infliction of\nemotional distress. The parties filed cross-motions for sum-\nmary judgment. Gills attempted to contest many of defend-\nants’ asserted facts by pointing to declarations in which he\nswore to the accuracy of allegations previously made in his\ncomplaint—in many places the declarations and the com-\nplaint are nearly identical. His attorney repeatedly cited the\ndeclarations to show disputes of fact, largely ignoring a\n\f4 No. 24-2898\n\nsubstantial discovery record. The district court did not con-\nsider the declarations and granted summary judgment to de-\nfendants. Gills now appeals as to his federal claims.\n II\n Gills challenges the district court’s decision to disregard\nhis declarations and its ruling on the merits. We review evi-\ndentiary rulings for an abuse of discretion, United States v.\nTrudeau, 812 F.3d 578, 590 (7th Cir. 2016), and apply de novo\nreview to a district court’s ruling on cross-motions for sum-\nmary judgment. Cent. States, Se. and Sw. Areas Pension Fund v.\nUnivar Sols. USA Inc., 148 F.4th 426, 429 (7th Cir. 2025). The\nusual standards for summary judgment apply, and because\nwe need only consider defendants’ motions against Gills, we\ngive him the beneﬁt of conﬂicting evidence and reasonable in-\nferences. Waukegan Potawatomi Casino, LLC v. City of Waukegan,\n128 F.4th 871, 873 (7th Cir. 2025). Summary judgment is ap-\npropriate when “there is no genuine dispute as to any mate-\nrial fact” and the moving party “is entitled to judgment as a\nmatter of law.” Fed. R. Civ. P. 56(a). A party who fails to pro-\nduce evidence suﬃcient to show an element essential to his\ncase on which he bears the burden cannot survive a summary\njudgment motion. Stockton v. Milwaukee County, 44 F.4th 605,\n614 (7th Cir. 2022).\n A\n Federal Rule of Civil Procedure 56 authorizes the use of\naffidavits or declarations at summary judgment, but both the\nrule and our case law impose limits on what is acceptable. For\ninstance, we generally do not allow litigants to make an end-\nrun on discovery by reaching back to verify allegations in a\ncomplaint. James v. Hale, 959 F.3d 307, 314–15 (7th Cir. 2020).\n\fNo. 24-2898 5\n\nApplying this principle, the district court ignored Gills’s dec-\nlarations and deemed defendants’ versions of the facts admit-\nted.\n We need not decide whether the district court was right to\nexclude Gills’s declarations based on improper complaint\nverification. Instead, we affirm the district court’s evidentiary\nruling because the declarations violated the sham affidavit\nrule, which “prohibits a party from submitting an affidavit\nthat contradicts the party’s prior deposition or other sworn\ntestimony.” Clacks v. Kwik Trip, Inc., 108 F.4th 950, 956 (7th Cir.\n2024) (citation modified). While the rule must be applied with\n“great care,” we have also approved the exclusion of affida-\nvits that aren’t directly contradictory but “add new factual de-\ntails not previously disclosed in deposition testimony when\nthose details seek to undo the effects of the prior testimony\nand manufacture a dispute to get past summary judgment.”\nId. (citation modified).\n Gills’s declarations add significant new factual details. For\ninstance, one of the declarations says that for two days\nstraight guards regularly refused to take Gills to the bath-\nroom. But at his deposition, Gills never said he was denied\naccess to the bathroom for more than one guard shift (eight\nhours) at a time. Similarly, Gills testified that he threw up\nonce due to heartburn. His declaration, however, says that he\nthrew up “at least fifteen times” because of that condition. In\na third example, Gills swore in his declaration that a guard\nrefused him access to drinking water for almost 12 hours. His\ndeposition testimony makes no mention of that incident at all.\nThese aren’t isolated examples. The declarations add names,\ndates, and factual details absent from the deposition testi-\nmony to create disputes and survive summary judgment.\n\f6 No. 24-2898\n\nWhich guards denied Gills access to facilities, when those de-\nnials occurred, and Gills’s medical condition and complaints\nwould be the focal points in any subsequent trial. Given these\ninconsistencies and additional details, the district court did\nnot abuse its discretion in setting Gills’s declarations aside.\n Gills complains about another evidentiary matter: the dis-\ntrict court ignored two other declarations—statements from\nGills’s mother and a porter at the prison. The district court did\nnot expressly exclude these declarations, yet neither did it ad-\ndress this evidence. The porter confirmed some of Gills’s\nworst experiences in the isolation cell and Gills’s mother said\nthat she could not reach her son for weeks during his recov-\nery. This evidence is insufficient to create a genuine issue of\nmaterial fact for trial. As Gills acknowledges, these statements\nmerely corroborate the other evidence in the record, and do\nnot differ significantly in substance from his deposition testi-\nmony. The district court’s failure to address these declara-\ntions was harmless. While this evidence should have been\nconsidered, its addition to the record changes nothing.\n B\n Turning to conditions of conﬁnement, Gills argues that his\nmonth-long imprisonment in a cell without a toilet or sink\nbroke the law. The Constitution mandates humane prisons,\nbut not comfortable ones. Rhodes v. Chapman, 452 U.S. 337,\n349–52 (1981). Prison oﬃcials violate the Eighth Amendment\nthrough inhumane conﬁnement when (1) conditions are, from\nan objective standpoint, suﬃciently serious to result in the de-\nnial of the minimal civilized measure of life’s necessities and\n(2) oﬃcials are deliberately indiﬀerent to the situation—\nmeaning that they know of and disregard an excessive risk of\n\fNo. 24-2898 7\n\nharm to the inmate. See Farmer v. Brennan, 511 U.S. 825, 834\n(1994); Thomas v. Blackard, 2 F.4th 716, 719–20 (7th Cir. 2021).\n Considering the ﬁrst requirement—suﬃciently serious\nconditions—Gills’s experience may satisfy this standard, but\nnot for the reason he presses. That the medical isolation cell\nlacked a toilet or sink was not, on its own, a denial of Gills’s\nright to basic necessities. See Farmer, 511 U.S. at 847 (oﬃcials\nwho take reasonable measures to abate inhumane conditions\nof conﬁnement cannot be held liable); Thomas, 2 F.4th at 721\n(a lack of hot water in a cell wasn’t a violation of the Eighth\nAmendment when prison oﬃcials provided a prisoner with\nthree hot showers per week); Jaros v. Ill. Dep’t of Corr., 684 F.3d\n667, 669–71 (7th Cir. 2012) (a prisoner wasn’t deprived of basic\nnecessities when his access to showers and toilets outside of\nhis cell was made more diﬃcult by weekly limits placed on\ntheir use and the lack of grab bars). Prisons must have “rea-\nsonably adequate ventilation, sanitation, bedding, hygienic\nmaterials, and utilities,” Hardeman v. Curran, 933 F.3d 816, 820\n(7th Cir. 2019) (citation modiﬁed), but we have never said that\noﬃcials can only satisfy that standard by locating toilets and\nsinks within each cell. See, e.g., Jaros, 2 F.4th at 670–71; Thomas,\n2 F.4th at 721. That an Illinois regulation mandated such facil-\nities doesn’t change the analysis. See Ill. Admin. Code tit. 20,\n§ 504.620(b); Williams v. Shah, 972 F.3d 476, 479 n.1 (7th Cir.\n2019) (“[S]ection 1983 protects plaintiﬀs from constitutional\nviolations, not violations of state law or departmental regula-\ntions.”).\n Make no mistake, though: forcing a prisoner to live in\negregiously unsanitary conditions satisﬁes the objective\nprong of the deliberate indiﬀerence test. See Taylor v. Riojas,\n592 U.S. 7, 7–10 (2020) (per curiam); Vinning-El v. Long, 482\n\f8 No. 24-2898\n\nF.3d 923, 924–25 (7th Cir. 2007); Thomas, 2 F.4th at 720–21.\nConsidering the facts in the light most favorable to Gills, he\nwas intermittently denied the use of a toilet or sink—on mul-\ntiple occasions for approximately eight hours—and at times\nhad to improvise in his cell. There’s evidence that Gills’s cell\nwas cleaned after these incidents, but the record shows that\nhe was forced to live alongside his waste for long stretches\nand had no way of cleaning himself. While debatable given\nthe intermittent nature of Gills’s experience, we can assume\nwithout deciding that these cell conditions deprived Gills of\nthe minimal civilized measure of life’s necessities.\n That’s not the end of the inquiry, however. Gills must also\ndemonstrate that oﬃcials were subjectively aware of his situ-\nation and refused to take reasonable measures to mitigate it.\nFarmer, 511 U.S. at 837. Gills argues that because prison oﬃ-\ncials knew his cell lacked a sink or toilet, they were deliber-\nately indiﬀerent to inhumane conditions of conﬁnement that\nposed an excessive risk to his health. But as we’ve explained,\nthe cell’s lack of these facilities was not, standing on its own,\na suﬃciently serious condition under the Eighth Amendment.\nAt most, the evidence shows that some guards knew that Gills\nwas unable to access the bathroom or wash his hands for an\nentire shift. But the record also shows that oﬃcers took steps\nto mitigate the situation. Gills was given a portable urinal, his\ncell was cleaned, and Gills never said that he was barred from\nusing the facilities for longer than a single guard shift at a\ntime. While the EMCC’s guards may not have acted kindly\ntowards Gills, on this record, no reasonable jury could con-\nclude that they responded to his plight with deliberate indif-\nference.\n\fNo. 24-2898 9\n\n C\n We turn next to Gills’s claim based on insuﬃcient medical\ncare. The Eighth Amendment requires prisons to provide ad-\nequate medical care to those in custody. Jackson v. Esser, 105\nF.4th 948, 961 (7th Cir. 2024). Oﬃcials fail to meet this stand-\nard if they are deliberately indiﬀerent towards a prisoner’s\nobjectively serious medical need. Id. To show that defendants\nviolated his rights in this way, Gills must prove (1) he suﬀered\nfrom an objectively serious medical condition and (2) defend-\nants were deliberately indiﬀerent to that condition. Id. Oﬃ-\ncials are deliberately indiﬀerent if they know of and disregard\n“an excessive risk to inmate health or safety” or are “both\naware of facts from which the inference could be drawn that\na substantial risk of serious harm exists” and they actually\n“draw[] the inference.” Johnson v. Dominguez, 5 F.4th 818, 825\n(7th Cir. 2021) (citation modiﬁed).\n Gills brought this claim against Dr. Rankin, an EMCC\nnurse, and various other prison oﬃcials. He argues that de-\nfendants exposed him to a risk of infection based on his bro-\nken arm by imprisoning him in a cell without a sink or toilet,\nrefusing to take him for showers, and denying him a tooth-\nbrush, soap, or pain medication. Assuming that a broken arm\nis an objectively serious medical condition, see Vance v. Peters,\n97 F.3d 987, 992–94 (7th Cir. 1996), Gills fails to explain how\nany defendant other than Dr. Rankin was deliberately indif-\nferent, or why the EMCC oﬃcials without medical training\nweren’t permitted to defer to the prison’s medical staﬀ. See\nGiles v. Godinez, 914 F.3d 1040, 1049 (7th Cir. 2019). By failing\nto press this argument, Gills forfeited his Eighth Amendment\nmedical care claim against defendants other than Dr. Rankin.\n\f10 No. 24-2898\n\nSee Fed. R. App. P. 28(a)(8)(A); Mwangangi v. Nielsen, 48 F.4th\n816, 832 (7th Cir. 2022).\n Gills has ﬁve main theories (and a few undeveloped argu-\nments) about how Dr. Rankin was deliberately indiﬀerent to\nhis broken arm. Three of these are based on delayed care for\n“non-life-threatening but painful conditions,” which means\nGills must prove that the “delay exacerbated the injury or un-\nnecessarily prolonged” his pain. Mitchell v. Kallas, 895 F.3d\n492, 500 (7th Cir. 2018) (citation modiﬁed). Dr. Rankin also can\nonly be held liable for delays he caused, either through action\nor inaction. See Aguilar v. Gaston-Camara, 861 F.3d 626, 630\n(7th Cir. 2017) (observing that § 1983 liability requires a show-\ning that each defendant, through his own actions, violated the\nConstitution); Walker v. Wexford Health Sources, Inc., 940 F.3d\n954, 964–66 (7th Cir. 2019) (declining to hold a doctor respon-\nsible for delays when he did not have “control over the cir-\ncumstances that caused the delays”).\n As to delayed care, Gills ﬁrst argues that Dr. Rankin was\ndeliberately indiﬀerent because hardware was supposed to\nremain in Gills’s arm for two to three months but was still\nthere well past that point due to limited follow up. But Gills\ndoes not point to any evidence that Dr. Rankin knew the hard-\nware should have come out sooner or failed to act once Gills\nreported pain. Gills’s second theory is based on his failure to\nreceive timely physical therapy. But the record shows that Dr.\nRankin ordered the sessions, and he cannot be held responsi-\nble for delays caused by others (or in this case, by a pan-\ndemic). See Walker, 940 F.3d at 966. Third, Gills argues that Dr.\nRankin violated his rights by failing to promptly secure a pad\nfor his arm sling. Yet Dr. Rankin repeatedly asked nursing\nstaﬀ to ﬁnd padding for Gills, and Gills does not point to\n\fNo. 24-2898 11\n\nevidence that the delay is attributable to Dr. Rankin (and not\nto other prison staﬀ). Perhaps Dr. Rankin could have done\nmore to follow up in some places, but deliberate indifference\nrequires much more. Jackson, 105 F.4th at 961.\n Gills’s other arguments (which aren’t based on delayed\ncare) also fail. His fourth theory is that Dr. Rankin was delib-\nerately indiﬀerent because a specialist told Gills to keep ice on\nhis arm while he was recovering from surgery, yet prison of-\nﬁcials didn’t provide adequate ice. Dr. Rankin can’t be held\nliable on this basis because again Gills cites no evidence that\nDr. Rankin knew about the specialist’s instruction. Fifth, Gills\nargues that Dr. Rankin violated his rights because he knew\nthe isolation cell lacked a sink and toilet, but Gills fails to\nshow that Dr. Rankin was aware that he was struggling to ac-\ncess those facilities outside his cell, or (as a result) that Gills\nfaced a substantial risk of infection.\n Finally, Gills contends that Dr. Rankin was deliberately in-\ndiﬀerent to other conditions—including headaches, heart-\nburn, and bloody stool. Even assuming without deciding that\nthese conditions qualify as objectively serious, the record\nshows that Dr. Rankin pursued a reasonable course of treat-\nment, and he cannot be faulted for delays caused by others.\nGills’s medical care while recovering from surgery may not\nhave been everything he wanted (or everything that his sur-\ngeon recommended). But the evidence shows that Dr. Rankin\nperformed his role at a level far above the Eighth Amend-\nment’s standard for liability.\n D\n Finally, Gills argues that there’s a material dispute as to\nwhether defendants conspired to violate his Eighth\n\f12 No. 24-2898\n\nAmendment rights. Gills cannot show that defendants vio-\nlated his constitutional rights, and so this claim fails based on\nthe absence of an underlying violation. See Archer v.\nChrisholm, 870 F.3d 603, 620 (7th Cir. 2017). Even if Gills could\nmake such a showing, there’s no non-speculative evidence\nthat defendants reached an agreement to violate his rights.\nBeaman v. Freesmeyer, 776 F.3d 500, 510–11 (7th Cir. 2015). Con-\nspiracies are often carried out secretly, which can make ﬁnd-\ning direct evidence challenging. Id. at 511. Circumstantial ev-\nidence is acceptable, yet it must be more than speculative. Id.\nHere, the best that Gills can do is speculate. Among other\nthings, Gills says a conspiracy existed because defendants\nknew about his cell’s lack of facilities, there were ﬂaws in the\ninvestigation into his assault, his family wasn’t allowed to\nvisit him, and there was a change in the prison’s shower pol-\nicy. But Gills cannot show that defendants agreed to take any\naction against him. Summary judgment was appropriate on\nthe conspiracy claim.\n AFFIRMED", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11241675/", "author_raw": "KIRSCH, Circuit Judge"}]}	BRENNAN	KIRSCH	JACKSON AKIWUMI	1		{"BRENNAN": ", Chief", "KIRSCH": ", Circuit", "JACKSON AKIWUMI": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10775090/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,775,115	Two Roads Shared Trust v. Barclays Capital Inc.	2026-01-15	23-3138	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before JACKSON-AKIWUMI, LEE, and PRYOR, Circuit Judges.", "parties": "", "opinions": [{"author": "LEE, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNos. 23-3109 & 23-3138\nLJM PARTNERS, LTD. and TWO ROADS SHARED TRUST,\n Plaintiﬀs-Appellants,\n v.\n\nBARCLAYS CAPITAL, INCORPORATED, et al.,\n Defendants-Appellees.\n ____________________\n\n Appeals from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n Nos. 1:19-cv-368 & 1:20-cv-831 — Manish S. Shah, Judge.\n ____________________\n\n ARGUED MAY 23, 2024 — DECIDED JANUARY 15, 2026\n ____________________\n\n Before JACKSON-AKIWUMI, LEE, and PRYOR, Circuit Judges.\n LEE, Circuit Judge. On February 5, 2018, the S&P 500\nplunged. As a result, the VIX—a Chicago Board of Exchange\n(“Cboe”) index that measures the expected volatility of the\nS&P 500—increased abruptly. LJM Partners, Ltd. and Two\nRoads Shared Trust (“Plaintiﬀs”) traded options on the Chi-\ncago Mercantile Exchange (“CME”). They took positions in\ncertain options assuming a low degree of market volatility.\nThis strategy proved catastrophic when volatility skyrocketed\n\f2 Nos. 23-3109 & 23-3138\n\non February 5, 2018. As a result, LJM and Two Roads lost\nenormous amounts of the money they managed on the CME.\n LJM and Two Roads ﬁled two separate lawsuits in the\nNorthern District of Illinois, each alleging that several “John\nDoe Defendants” had manipulated the VIX to impact the S&P\n500-based derivative markets in violation of the Commodity\nExchange Act (“CEA”), 7 U.S.C. §§ 6b, 6c, 9, 13, 25. After en-\ngaging in several years of litigation to identify the John Doe\nﬁrms, Plaintiﬀs eventually amended their complaints to in-\nclude the names of eight ﬁrms (“Defendants”), who they\nclaim manipulated the VIX on February 5, 2018.\n Defendants moved to dismiss both complaints, and the\ndistrict court granted their motion. First, the district court de-\ntermined that LJM’s complaint failed to allege an injury in fact\nto support Article III standing. Second, it held that Two\nRoads’s claims were barred by the CEA’s two-year statute of\nlimitations and declined to apply equitable tolling to excuse\nthe untimeliness. LJM and Two Roads appealed. We aﬃrm.\n I\nA. Plaintiﬀs’ Trading Strategy\n LJM was a commodity trading advisor and commodity\npool operator that managed approximately ﬁfty accounts.\nThese accounts included those of investors as well as six lim-\nited partnership funds for which LJM served as general part-\nner. LJM’s aﬃliate, LJM Funds Management, Ltd., managed a\npublicly traded mutual fund called the LJM Preservation and\n\fNos. 23-3109 & 23-3138 3\n\nGrowth Fund (the “Preservation Fund”). 1 That fund was or-\nganized as a series of shares of beneﬁcial interest in Two\nRoads.\n The CME is a global futures and options marketplace\nbased in Chicago. The CME lists contracts for various futures,\nincluding a standard S&P 500 Future and the E-mini S&P 500\nFuture (“E-mini”), which is one-ﬁfth the size of the standard\nversion. The CME also oﬀers standard options on these S&P\n500 Futures, meaning that—while the underlying instrument\nis a futures contract—the holder has the right (but not an ob-\nligation) to purchase or sell the referenced S&P 500 Future at\nthe strike price (i.e., the price at which the option can be exer-\ncised) on the designated expiration date. LJM and the Preser-\nvation Fund traded these options to buy and sell S&P 500 Fu-\ntures and E-minis on the CME.\n The VIX is a Cboe-created benchmark volatility index that\nmeasures the thirty-day expected volatility in the S&P 500. It\nis calculated based on the midpoint of bid-ask prices for cer-\ntain SPX Options.\n Plaintiﬀs centered their trading philosophies around the\nso-called “volatility premiums” baked into options prices.\nWhen a purchaser bought an option from LJM or the Preser-\nvation Fund, it paid the companies a premium to protect itself\nagainst volatility in the U.S. equity markets. In exchange for\nthis premium, Plaintiﬀs took on the risk of signiﬁcant market\n\n\n\n 1 Although Two Roads brings this suit, the Preservation Fund is the\nentity that made the transactions at issue. In the facts that follow, we some-\ntimes refer to the trading entities as “Plaintiﬀs” for ease of reference, even\nthough Two Roads was not itself transacting options.\n\f4 Nos. 23-3109 & 23-3138\n\nmoves. Essentially, Plaintiﬀs bet that high volatility would\nnot materialize, and this is how they made their proﬁts.\n According to Plaintiﬀs, this strategy was successful be-\ncause options buyers typically overestimate the likelihood of\nhigh volatility in the market, meaning that implied volatility\n(the volatility investors predict will occur) generally outpaces\nactual volatility. As a result, Plaintiﬀs say, they proﬁted from\nthese premiums because volatility typically does not rise as\nmuch as investors fear.\nB. Events of February 5, 2018\n This strategy generally worked well for Plaintiﬀs until\nmarket volatility skyrocketed on February 5, 2018. Around\n10:30 a.m. that day, the S&P 500 began to sharply decline. As\nthe S&P 500 declined, the VIX increased—ﬁrst in an orderly\nmanner and then at an unprecedented rate beginning around\n1:20 p.m. By 1:57 p.m., the VIX had risen to 27.97, an increase\nof 61.6% from where it opened that day. Between February 5\nand 6, 2018, the S&P 500 dropped 4.1%.\n When the market began to decline on February 5, Plaintiﬀs\nresponded by making adjustment trades to reduce the risk\nthat they would lose money on the options they sold. As the\nmarket continued to drop, they entered into more and more\nadjustment trades, which became increasingly more expen-\nsive as the VIX continued to climb.\n By the close of trading on February 5, 2018, LJM had ad-\njusted approximately 87.9% of its opening short put posi-\ntions 2 at purportedly inﬂated prices—more trades than it had\n\n\n\n 2 A “short put” is simply the sale of an option on a security.\n\fNos. 23-3109 & 23-3138 5\n\never made in a single day. LJM lost approximately $334.9 mil-\nlion on February 5, nearly 65% of its net managed assets.\nMeanwhile, the Preservation Fund lost $430 million by the\nclose of trading on that day, which amounted to almost 56%\nof its net managed assets.\n Plaintiﬀs’ troubles continued into the next day. As a result\nof their losses on February 5, Wells Fargo—Plaintiﬀs’ futures\nclearing merchant—required them to post millions of dollars\nin additional assets by the February 6 opening bell. When nei-\nther LJM nor the Preservation Fund could meet this demand,\nWells Fargo required them to promptly close the positions\nthey held in their Wells Fargo accounts. On February 6, LJM\nand the Preservation Fund short sold E-minis at very low\nprices to oﬀset their options positions.\n All told, on February 5 and 6, LJM lost approximately\n$446.8 million (or approximately 86.5%) of the total assets it\nmanaged. The Preservation Fund lost $610 million (or approx-\nimately 80%) of its managed assets.\nC. Plaintiﬀs’ Market Manipulation Theory\n Defendants Barclays Capital Inc.; Morgan Stanley & Co.\nLLC; DRW Securities, LLC; CTC, LLC; Optiver US LLC; Vo-\nlant Liquidity, LLC; Akuna Securities LLC; and IMC-Chicago,\nLLC, doing business as IMC Financial Markets, are all Cboe-\napproved market makers that traded in SPX Options. SPX Op-\ntions are another type of option, but they are available for\ntrading solely on Cboe.\n Because SPX Options, options on S&P 500 Futures, and op-\ntions on E-minis are all priced based on the S&P 500, they are\ncorrelated and move in tandem. According to Plaintiﬀs, each\n\f6 Nos. 23-3109 & 23-3138\n\nof these ﬁrms pursued a “long” volatility strategy—that is,\nthey stood to gain when implied volatility was high.\n LJM and Two Roads do not view their losses on February\n5 and 6 as the natural consequence of their investment strat-\negy. Instead, they describe a detailed scheme by which De-\nfendants allegedly manipulated the market, which caused\nPlaintiﬀs to suﬀer losses that they otherwise would not have\nincurred. Although the precise mechanisms of the fraud are\ncomplicated (and not relevant to this appeal), Plaintiﬀs’ the-\nory boils down to this: Defendants each repeatedly quoted in-\nﬂated bid-ask prices for out-of-the-money 3 SPX Options dur-\ning the afternoon of February 5 and the morning of February\n6. Plaintiﬀs claim this increased the midpoint of the SPX Op-\ntion price on which the VIX is based.\n According to Plaintiﬀs, Defendants’ plan worked—their\nfalse quotes artiﬁcially inﬂated the prices at which SPX Op-\ntions were sold. And, because SPX Options move in tandem\nwith S&P 500 Futures and E-minis, Defendants’ actions in\nturn increased implied volatility and caused the prices on\nPlaintiﬀs’ trades to rise. This, Plaintiﬀs say, is what caused\nthem to lose over one billion dollars in combined managed\nassets over two days. In support, Plaintiﬀs point out that the\nFebruary 5 VIX spike was 13.7 standard deviations away from\nthe mean settlement price during the previous twelve months,\na deviation they insist is “statistically impossible to explain as\na result of rational fair market activity.”\n\n\n\n 3 An option is “out-of-the-money” when its strike price is above the\ncurrent market price. As a result, the option has no extrinsic value because\nexercising it would not be proﬁtable.\n\fNos. 23-3109 & 23-3138 7\n\nD. Procedural History\n LJM launched its lawsuit on January 18, 2019, alleging that\nDefendants placed “artiﬁcial and manipulative bid-ask\nquotes on out-of-the-money SPX Options traded on the\nCBOE” in violation of the CEA and 17 C.F.R. § 180.2. Accord-\ning to LJM, these fraudulent quotes, which Defendants had\nno intent to execute, increased the VIX, thereby favoring De-\nfendants’ investment strategies that assumed high volatility.\nBut, because LJM lacked the information necessary to identify\nthe entities that had allegedly manipulated the market, its\ncomplaint merely named “John Doe” defendants as place-\nholders.\n Mindful that the CEA carries a two-year statute of limita-\ntions, 7 U.S.C. § 25(c), LJM asked the district court on January\n24, 2019, for leave to conduct expedited discovery to ascertain\nthe identity of potential defendants. Before the district court\ncould rule on LJM’s motion, however, the Judicial Panel on\nMultidistrict Litigation deemed the case to be part of a multi-\ndistrict litigation involving similar claims of VIX manipula-\ntion pending in the Northern District of Illinois (we will refer\nto this as the “VIX MDL”). The district court overseeing the\nVIX MDL denied LJM’s motion to expedite discovery without\nprejudice. Although the court acknowledged it was “sensitive\nto the … statute of limitations,” it believed LJM was prema-\nturely seeking broad merits discovery and thought it im-\nportant to keep LJM’s case on the same track as the rest of the\nMDL.\n Four months later, LJM ﬁled a second motion to expedite\ndiscovery. The district court again denied it, concluding that,\nalthough the discovery schedule in the VIX MDL “put[] LJM\nin a worse position than it was when it ﬁrst asked for Doe\n\f8 Nos. 23-3109 & 23-3138\n\ndiscovery,” the risks associated with addressing the statute-\nof-limitations defense later in the proceedings did “not out-\nweigh [its] concern over coordinating all claims of VIX ma-\nnipulation.” In the court’s view, LJM was asking for “exten-\nsive merits discovery to identify [the Doe defendants],” which\nwould put LJM ahead of the other VIX MDL plaintiﬀs. Thus,\nit concluded, allowing LJM to pursue a second, separate track\nof discovery was not “eﬃcient under the[] circumstances.”\n On February 4, 2020—two days before the two-year anni-\nversary of the February 2018 market decline—Two Roads\nﬁled a complaint asserting the same market manipulation the-\nory as LJM. And, like LJM, Two Roads also named only “John\nDoes” as defendants.\n Two Roads’s case was immediately reassigned to the VIX\nMDL, and LJM’s and Two Roads’s cases proceeded in tan-\ndem. Later that month, the two parties ﬁled a joint motion for\nexpedited discovery, claiming this third attempt was more tai-\nlored “to target the identity of only those traders who manip-\nulated the relevant instruments.” The court agreed and\ngranted the motion, ﬁnding the request was “much closer to\nsimply identifying the ‘who’ and not the ‘what’ or ‘how’ of\nthe claims.” Given this, the court was less concerned that the\ndiscovery request was “being used as a substitute for pre-\ncomplaint investigation.”\n Shortly thereafter, Plaintiﬀs served Cboe with a subpoena\nrequesting the February 5 and 6 trading records. Cboe moved\nto quash the subpoena on May 21, 2020, insisting that the re-\nquest went “well beyond” what the district court held was the\n“proper scope of Doe discovery.” The court granted the mo-\ntion in part. It agreed with Plaintiﬀs that Cboe had not shown\nthat the volume of information posed an undue burden, but\n\fNos. 23-3109 & 23-3138 9\n\nit nevertheless narrowed the subpoena to bids and asks lim-\nited to “near-term and next-term SPX options used to calcu-\nlate the spot VIX … and from the normal-hours trading peri-\nods on February 5 and 6 and the extended-hours trading pe-\nriod from the early morning of February 6, 2018.” The court\nalso ordered Cboe to use aliases when producing the records\nto protect the identities of market participants.\n Plaintiﬀs received Cboe’s ﬁrst production of this infor-\nmation on July 7, 2020. Then, after discovering an error in the\nalgorithm it had used to generate the aliases that appeared in\nthe data, Cboe produced a corrected version of the dataset to\nPlaintiﬀs on November 20, 2020. In January 2021, after rerun-\nning their analysis with Cboe’s new dataset, Plaintiﬀs asked\nCboe to produce the identities of ﬁve of the seventeen aliases\npresent in the dataset. Cboe in turn informed those ﬁrms that\nPlaintiﬀs had identiﬁed them as potential defendants.\n Opposing Plaintiﬀs’ eﬀorts to obtain their identities, the\nﬁrms then ﬁled an anonymous motion to intervene to prevent\nthe disclosure, which the court granted. Meanwhile, Cboe\nalso refused to provide the identities to Plaintiﬀs, leading\nthem to ﬁle a motion to compel in May 2021, which the district\ncourt later denied, believing that the improper conduct Plain-\ntiﬀs alleged in their motion was “diﬀerent than the conduct\nalleged in the complaints.”\n A short time later, Plaintiﬀs received leave from the court\nto amend the complaints. And they ﬁled their amended com-\nplaints in November 2021, still naming “John Does” as de-\nfendants. This time, the amended complaints alleged that\nnine ﬁrms manipulated SPX Options to increase the VIX,\nwhich in turn caused artiﬁcially inﬂated prices for S&P 500\nFuture and E-mini contracts.\n\f10 Nos. 23-3109 & 23-3138\n\n Plaintiﬀs renewed their motion to compel on December 17,\n2021. Satisﬁed that Plaintiﬀs ﬁnally had shown good cause for\nearly discovery, the court granted the motion to compel on\nAugust 16, 2022, and required Cboe to identify the names of\neight of the nine ﬁrms that were the subject of the motion.\nCboe provided Plaintiﬀs with those names, and on August 30,\n2022, Plaintiﬀs ﬁled a sealed Second Amended Complaint\nnaming seven of the eight ﬁrms as defendants. And, just over\na month later, Plaintiﬀs ﬁled a Third Amended Complaint\nnaming the eight Defendants before us now.\n On November 4, 2022, the ﬁrms jointly moved to dismiss\nLJM’s complaint for lack of subject matter jurisdiction under\nFederal Rule of Civil Procedure 12(b)(1). They also moved to\ndismiss both complaints for failure to state a claim under Rule\n12(b)(6). The district court granted the motions and dismissed\nboth complaints. First, it found that LJM had failed to allege\nan injury in fact suﬃcient to establish Article III standing. As\nthe court saw it, the only injuries alleged in the complaint\nwere those borne by LJM’s customers, not LJM itself. The\ncourt also rejected LJM’s request to substitute a real party in\ninterest under Rule 17(a)(3), concluding that the procedure “is\nonly available to a plaintiﬀ who has Article III standing.” LJM\nPartners, Ltd. v. Barclays Cap. Inc., No. 19 CV 368, 2023 WL\n6311471, at 9 (N.D. Ill. Sept. 28, 2023). Accordingly, the court\ndismissed without prejudice LJM’s complaint for lack of juris-\ndiction and denied leave to amend, concluding that any\namendment would be futile due to CEA’s two-year limita-\ntions period.\n Two Roads’s complaint met a similar fate. Faced with the\nquestion of when a CEA claim accrues for statute-of-limita-\ntion purposes, the district court found that the claim accrues\n\fNos. 23-3109 & 23-3138 11\n\n“when the plaintiﬀ, in the exercise of due diligence, has actual\nor constructive knowledge of the conduct in question.” In\nTwo Roads’s case, this was on February 6, 2018, when it\nlearned of its injury. And, because Two Roads submitted its\nThird Amended Complaint on September 28, 2022—over four\nyears later—the court found it untimely pursuant to 7 U.S.C.\n§ 25(c). Two Roads also asked the court in the alternative to\napply equitable tolling to account for the time it was conduct-\ning Doe discovery. But, the district court refused to do so,\nﬁnding that Two Roads had failed to diligently pursue its\nclaim.\n In the interest of completeness, the district court also ex-\namined whether Two Roads had stated a CEA claim on the\nmerits and found it did not. The court rejected Two Roads’s\nmarket manipulation claim for failing to allege that Defend-\nants possessed the speciﬁc intent to manipulate the price of a\nﬁnancial instrument. Moreover, it determined that both of\nTwo Roads’s CEA claims were barred by the statute of limita-\ntions.\n LJM and Two Roads appealed, and we consolidated the\nappeals for disposition.\n II\n Our analysis proceeds in two steps. First, we determine\nwhether Two Roads’s complaint was timely and, if not,\nwhether the district court abused its discretion by refusing to\napply equitable tolling. Second, we address whether LJM’s\ncomplaint suﬃciently alleges Article III standing and whether\nLJM’s own complaint was ﬁled in a timely manner.\n\f12 Nos. 23-3109 & 23-3138\n\nA. Two Roads\n 1. Timeliness\n A plaintiﬀ seeking relief under the CEA must bring an ac-\ntion no later than “two years after the date the cause of action\narises.” 7 U.S.C. § 25(c). The principal issue for Two Roads is\nwhether its complaint was timely, and, if not, whether the dis-\ntrict court abused its discretion in refusing to apply equitable\ntolling to save its claims.\n As a preliminary matter, Two Roads argues that the dis-\ntrict court should have waited until summary judgment to\nrule on the timeliness of its claims because complaints “need\nnot anticipate and overcome aﬃrmative defenses, such as the\nstatute of limitations.” Cancer Found., Inc. v. Cerberus Cap.\nMgmt., LP, 559 F.3d 671, 674 (7th Cir. 2009). But a district court\nmay dismiss on statute-of-limitations grounds where it is\n“clear from the face of the amended complaint that it is hope-\nlessly time-barred.” Id. at 675. Here, Two Roads’s complaints\nprovide all the information we need to assess their timeliness.\n Although Two Roads ﬁled its initial complaint on Febru-\nary 4, 2020, it did not name the Defendants until it ﬁled its\nSecond and Third Amended Complaints on August 30 and\nSeptember 28, 2022. Two Roads urges us to focus on the ﬁrst\ndate, arguing that its amended complaints relate back to the\nﬁling of the original complaint under Rule 15(c)(1)(C)(ii). This\nrule allows an amendment adding a defendant to relate back\nto the ﬁling date of the original complaint if the new defend-\nant “knew or should have known that the action would have\nbeen brought against it, but for a mistake concerning the proper\nparty’s identity.” Fed. R. Civ. P. 15(c)(1)(C)(ii) (emphasis\nadded). But, as we have held elsewhere, a plaintiﬀ’s\n\fNos. 23-3109 & 23-3138 13\n\n“conscious choice” to ﬁle a complaint against a John Doe even\nthough it does not know the defendant’s identity is not a\n“mistake” within the meaning of Rule 15(c)(1)(C)(ii). Herrera\nv. Cleveland, 8 F.4th 493, 499 (7th Cir. 2021). Therefore, the rel-\nevant ﬁling date for limitations purposes is August 30, 2022,\nfor all Defendants except IMC-Chicago, which was not added\nas a defendant until the ﬁling of the Third Amended Com-\nplaint on September 28, 2022.\n We next examine when the CEA’s two-year clock began to\nrun. To do so, we follow the “discovery rule,” which provides\nthat “the statute commences to run when the plaintiﬀ, in the\nexercise of due diligence, has actual or constructive\nknowledge of the conduct in question.” Dyer v. Merrill Lynch,\nPierce, Fenner & Smith, Inc., 928 F.2d 238, 240 (7th Cir. 1991).\nAccording to Defendants, Two Roads had “actual or construc-\ntive knowledge” of their alleged market manipulation on Feb-\nruary 6, 2018.\n In Two Roads’s view, its claim accrued only once it discov-\nered Defendants’ scienter (that is, their intent to manipulate\nor defraud the market). And this discovery, according to Two\nRoads, did not occur until sometime after it received the cor-\nrected Cboe data in November 2020. To support this argu-\nment, Two Roads points to the fraud-speciﬁc discovery rule\noutlined in Merck & Co., Inc. v. Reynolds, 559 U.S. 633 (2010),\nwhich provides that a fraud is “discovered” only when a\nplaintiﬀ knows or should know the “facts that will form the\nbasis” of the claim. Id. at 646. In Merck, the Supreme Court\nconcluded that a defendant’s intent to manipulate or defraud\nis among the facts necessary to discover the wrongful conduct\nfor accrual purposes. Id. at 648–49.\n\f14 Nos. 23-3109 & 23-3138\n\n Before moving to the substance of Two Roads’s argument,\nwe note that the plaintiﬀs’ claims in Merck arose under § 10(b)\nof the Securities Exchange Act of 1934, not the CEA. And there\nis some reason to question Merck’s applicability here. For ex-\nample, the text of the statute of limitations at issue in Merck\ncontains additional language that is not present in 7 U.S.C.\n§ 25(c). Compare 28 U.S.C. § 1658(b) (stating that claims may\nnot be brought more than “2 years after the discovery of the facts\nconstituting the violation”) (emphasis added), with 7 U.S.C.\n§ 25(c) (stating only that a CEA claim “shall be brought not\nlater than two years after the date the cause of action arises”)\n(emphasis added). We have previously observed that this lan-\nguage makes Merck’s holding “hard to impute” to the CEA.\nPremium Plus Partners, L.P. v. Goldman, Sachs & Co., 648 F.3d\n533, 536 (7th Cir. 2011). However, as we did in Premium Plus,\nwe will assume Merck applies, because doing so does not\nchange the outcome of our analysis. Id.\n First, we note that Two Roads failed to raise this scienter-\nbased argument to the district court, thereby forfeiting it on\nappeal. See St. Paul Fire & Marine Ins. Co. v. Schilli Transp.\nServs. Inc., 672 F.3d 451, 460 (7th Cir. 2012). But even if Two\nRoads had done so, we would still be unconvinced.\n Despite its insistence that it had no way of ascertaining\nDefendants’ scienter until after it had received the Cboe data,\nthe allegations in Two Roads’s complaint indicate otherwise.\nFor example, its initial complaint asserted that “it is virtually\nimpossible that the historic increase in the VIX on February 5,\n2018 was the result of legitimate market activity, and instead,\nsupports the conclusion that it resulted due to manipulation by\nJohn Doe Defendants.” (emphasis added). Indeed, Defend-\nants’ intent to manipulate formed the crux of Two Roads’s\n\fNos. 23-3109 & 23-3138 15\n\noriginal CEA claims. Thus, Two Roads’s current argument is\nfatally undermined by its own allegations.\n On a related note, Two Roads insists the district court\nerred in assuming that its claim accrued on February 6, 2018.\nAlthough it learned of its losses that day, Two Roads argues,\nit did not understand that its losses were caused by illegal\nmarket manipulation until much later. But Two Roads had\nreason to know the cause by at least February 4, 2020, when it\nﬁled its original complaint. Even assuming the clock started\nthat day, Two Roads still took over two years to name Defend-\nants. Thus, even under Two Roads’s theory of accrual, its op-\nerative complaint was untimely under 7 U.S.C. § 25(c).\n 2. Equitable Tolling\n In the alternative, Two Roads contends that the district\ncourt should have granted it the beneﬁt of equitable tolling,\ngiven the unforeseen diﬃculties it experienced in identifying\nDefendants. We disagree.\n “Equitable tolling halts the limitations clock ‘when a liti-\ngant has pursued his rights diligently but some extraordinary\ncircumstance prevents him from bringing a timely action.’”\nHerrera, 8 F.4th at 499 (quoting Xanthopoulos v. U.S. Dep’t of\nLab., 991 F.3d 823, 831 (7th Cir. 2021)). In determining whether\nto apply equitable tolling, we “look at ‘the entire hand’ that [a\nplaintiﬀ] was dealt.” Carpenter v. Douma, 840 F.3d 867, 872 (7th\nCir. 2016) (quoting Socha v. Boughton, 763 F.3d 674, 686 (7th\nCir. 2014)). In other words, equitable tolling requires a “‘ﬂex-\nible standard that encompasses all of the circumstances that\n[a plaintiﬀ] faced and the cumulative eﬀect of those circum-\nstances’ to determine whether they were ‘extraordinary’ and\ntruly prevented timely ﬁling of his [claim].” Id. (quoting Socha,\n\f16 Nos. 23-3109 & 23-3138\n\n763 F.3d at 686). The plaintiﬀ bears the burden of showing it\nsatisﬁed the requirements for equitable tolling, Menominee In-\ndian Tribe of Wis. v. United States, 577 U.S. 250, 256 (2016), and\nwe review a district court’s denial of equitable tolling for\nabuse of discretion, Lax v. Mayorkas, 20 F.4th 1178, 1181 (7th\nCir. 2021). Finally, it is worth noting that “[f]ederal courts\nhave typically extended equitable relief only sparingly.” Her-\nrera, 8 F.4th at 499 (quoting Irwin v. Dep’t of Veterans Aﬀs., 498\nU.S. 89, 96 (1990)).\n Two Roads claims that several “external roadblocks” pre-\nvented it from meeting the statute of limitations. First, it in-\nsists that the stay of discovery in the MDL (which lasted until\nApril 21, 2020) barred it from ascertaining Defendants’ iden-\ntities. But Two Roads did not even ﬁle its initial complaint un-\ntil February 2020, just days before the two-year limitations pe-\nriod expired. As a sophisticated party, Two Roads should\nhave anticipated the diﬃculties in obtaining identiﬁcation in-\nformation from the Cboe and the need to ﬁle its complaint\nwell before the passage of the two-year period.\n Second, Two Roads contends it was delayed for over a year\nwhile it attempted to force Cboe to provide Defendants’ iden-\ntiﬁcation. But the district court correctly concluded that these\ndelays were the kind of ordinary delays inherent to litigation\nand did not warrant equitable tolling. See Carpenter, 840 F.3d\nat 872 (aﬃrming the denial of equitable tolling because the\nplaintiﬀ’s circumstances were “nothing but ordinary”).\n Finally, Two Roads suggests it was delayed because Cboe\ninitially had provided it with an erroneous SPX Options da-\ntaset. But this only costed the parties several months, and\nwhen we consider the “cumulative … circumstances,” this de-\nlay pales in comparison to Two Roads’s overall delay in ﬁling\n\fNos. 23-3109 & 23-3138 17\n\nthe lawsuit in the ﬁrst place. Id. As such, we do not think the\nproduction of the erroneous dataset alone warrants equitable\ntolling under these circumstances.\n In sum, the district court did not abuse its discretion when\nit denied Two Roads’s request for equitable tolling. We echo\nthe district court’s suggestion that the outcome may have\nbeen diﬀerent if Two Roads had ﬁled its complaint soon after\ndiscovering its injury and had diligently sought to uncover\nDefendants’ identities. But Two Roads’s failure to ﬁle suit un-\ntil two days before the ending of the limitations period under-\nmines any claims of diligence. See Herrera, 8 F.4th at 499. We\ntherefore aﬃrm the district court’s dismissal of Two Roads’s\ncomplaint. 4\nB. LJM\n 1. Article III Standing\n Before addressing the claims, we have “an obligation to\nassure ourselves” that LJM has Article III standing. Daim-\nlerChrysler Corp. v. Cuno, 547 U.S. 332, 340 (2006) (quoting\nFriends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528\nU.S. 167, 180 (2000)). We review a decision to dismiss for lack\nof standing de novo. Dinerstein v. Google, LLC, 73 F.4th 502, 511\n(7th Cir. 2023).\n\n\n\n\n 4 The district court assessed “in the interest of completeness” whether\nTwo Roads stated a CEA price manipulation and manipulative device\nclaim on the merits. LJM Partners, 2023 WL 6311471, at 12. Because it is\nclear that Two Roads’s complaint was untimely and that the district court\ndid not abuse its discretion in denying equitable tolling, we need not reach\nthis issue.\n\f18 Nos. 23-3109 & 23-3138\n\n For Article III standing, a plaintiﬀ must have “(1) suffered\nan injury in fact, (2) that is fairly traceable to the challenged\nconduct of the defendant, and (3) that is likely to be redressed\nby a favorable judicial decision.” Spokeo, Inc. v. Robins, 578\nU.S. 330, 338 (2016) (citing Lujan v. Defs. of Wildlife, 504 U.S.\n555, 560 (1992)). At the pleading stage, “general factual alle-\ngations of injury resulting from the defendant’s conduct may\nsuffice, for on a motion to dismiss we presume that general\nallegations embrace those specific facts that are necessary to\nsupport the claim.” Lujan, 504 U.S. at 561 (citation modified).\nAs the party invoking federal jurisdiction, LJM bears the bur-\nden of establishing that standing exists. See id.\n As is often the case, our standing analysis focuses on\nwhether LJM meets Article III’s injury-in-fact requirement.\n“To establish injury in fact, a plaintiff must show that he or\nshe suffered ‘an invasion of a legally protected interest’ that\nis ‘concrete and particularized’ and ‘actual or imminent, not\nconjectural or hypothetical.’” Spokeo, 578 U.S. at 339 (quoting\nLujan, 504 U.S. at 560). Although concrete injuries may be tan-\ngible or intangible, they must be “real[] and not abstract.” Id.\nat 340 (internal quotation marks omitted). In other words, an\ninjury “must actually exist.” Id. Economic harms are among\nthe “most obvious” of concrete injuries. TransUnion LLC v.\nRamirez, 594 U.S. 413, 425 (2021).\n At first blush, LJM’s complaint appears to allege the sort\nof concrete economic injury the Supreme Court endorsed in\nTransUnion. For example, it alleges that, “[a]s a direct result of\nDefendants’ unlawful conduct, LJM has suﬀered actual damages\nand injury in fact due to incurring losses when transacting options\non S&P 500 Futures and E-minis at artiﬁcial prices on Febru-\nary 5 and 6, 2018.” (emphasis added). It also claims that “LJM\n\fNos. 23-3109 & 23-3138 19\n\nwas further legally injured and suﬀered injury in fact when it\ntransacted in options on S&P 500 Futures and/or E-minis on\nFebruary 5 and 6, 2018 in an artiﬁcial and manipulated market\noperating with the artiﬁcial prices caused by Defendants.”\n(emphasis added). What is more, the complaint quantiﬁes\nthese losses, saying that “[b]y the close of trading on February\n6, 2018, the net asset value of LJM—on a marked-to-market\n[sic] basis—had dropped to approximately $70.5 million, an\n86.5% decline in the [sic] LJM’s net assets.”\n These allegations seemingly suggest LJM experienced ﬁ-\nnancial losses through its trading activities on February 5 and\n6, which would typically satisfy Article III’s injury-in-fact re-\nquirement. See TransUnion, 594 U.S. at 425. But we cannot\nread these allegations in isolation; rather, we must review\nthem in the context of the entire complaint. Appvion, Inc. Ret.\nSav. & Emp. Stock Ownership Plan by & through Lyon v. Buth, 99\nF.4th 928, 947 (7th Cir. 2024) (reminding that “our job is to\nread the complaint as a whole” and not to parse it “piece by\npiece”). Particularly salient here is footnote four of the com-\nplaint, which states: “For ease, throughout the Complaint,\nLJM and the funds it managed are collectively referred to as the\nentity harmed by Defendants’ conduct and referred to as\n‘LJM.’” (emphasis added).\n Thus, when the complaint refers to the losses “LJM” in-\ncurred, those “losses” include the losses suﬀered by LJM’s cli-\nents whose money LJM managed. And, based on the way LJM\nhas defined itself in its complaint, we have no way of know-\ning what proportion of the “losses” were suffered by LJM it-\nself versus its clients. Indeed, the structure of the complaint\nmakes it entirely possible that LJM did not lose any of its own\nmoney through its trades on February 5 and 6, 2018.\n\f20 Nos. 23-3109 & 23-3138\n\n In Indemniﬁed Capital Investments, S.A. v. R.J. O’Brien and\nAssociates, Inc., we held that investment losses to a client’s ac-\ncount do not automatically accrue to the entity that managed\nthe account. 12 F.3d 1406, 1409–10 (7th Cir. 1993). In that case,\nIndemniﬁed Capital Investments (“ICI”), an investment com-\npany, sued a commodity futures trader for breach of ﬁduciary\nduty and violations of the CEA. Id. at 1407. ICI alleged it ex-\nperienced losses in (1) client accounts that did not contain any\nof the company’s own funds, and (2) house accounts that were\npartially funded with the company’s own money. Id. at 1407–\n08. As for the former, we held that “the losses incurred by the\nICI customer accounts accrued only to ICI’s customers and\nare too attenuated to create standing for ICI.” Id. at 1409. As\nfor the latter, we said that “[i]f ICI actually funded the house\naccount and suﬀered loss, then it ha[d] satisﬁed the injury in\nfact requirement.” Id. at 1410.\n Consistent with our holding in ICI, the losses LJM’s clients\nincurred when those funds were liquidated “are too attenu-\nated to create standing” for LJM. Id. at 1409. And, because of\nthe ambiguity created by footnote four of LJM’s complaint,\nwe do not know whether LJM actually lost any of its own\nmoney by virtue of its trades on February 5 and 6, 2018. As\nsuch, we conclude that LJM’s general allegations of trading\nlosses are insuﬃcient to constitute an Article III injury in fact.\n LJM, however, advances a second argument. The com-\npany contends that it has alleged a concrete injury because its\ncomplaint says LJM served as general partner for six limited\npartnership funds it managed. The problem is that the com-\nplaint does not allege that these particular limited partner-\nships were among the accounts that lost money on February\n5 and 6, 2018. Nor does the complaint specify exactly how\n\fNos. 23-3109 & 23-3138 21\n\nLJM’s role as a general partner of these funds caused it con-\ncrete injury. Still, LJM insists such an inference is “common\nsense.” For example, LJM’s opening brief says that “[g]eneral\npartners in limited partnerships have powers, obligations,\nand liabilities arising from that role.” It also states that “gen-\neral partners reserve either ownership interests in partnership\nassets or compensation rights, or both.”\n But such attorney arguments are not enough. Although\nwe are to draw all reasonable inferences in LJM’s favor, we\nneed more before we can infer that LJM was injured vis-à-vis\nits capacity as a general partner in these limited partnerships.\nFor example, did the partnerships in which LJM was a general\npartner incur any losses due to Defendants’ alleged conduct?\nDid LJM invest any of its own money in these partnerships?\nAnd how is LJM compensated for its role as general partner—\ndoes it share in the profits and losses or does it receive a flat\nadministration fee regardless of performance? The complaint\nmakes no attempt to fill these gaps, and we will not engage in\n“raw guesswork” to answer them ourselves. Taha v. Int’l Bhd.\nof Teamsters, Loc. 781, 947 F.3d 464, 472 (7th Cir. 2020).\n Despite this, LJM points to two cases it claims support its\ntheory that a general partner of a partnership is presump-\ntively injured when the partnership is injured. But neither\nhelps. The first is Adco Oil Co. v. Rovell, 357 F.3d 664 (7th Cir.\n2004). There, Adco was a partner in a partnership called\nHugoton Joint Venture (“HJV”). Id. at 665. When a dispute\nbroke out over a disclosed trade secret, Adco assigned its\nrights to HJV to sue on its behalf. Id. Before the jury reached a\nverdict, HJV’s lawyer negotiated a cap on the jury verdict that\nleft Adco uncompensated, and Adco in turn sued the lawyer\nfor malpractice. Id.\n\f22 Nos. 23-3109 & 23-3138\n\n We concluded that Adco had Article III standing because\nit “want[ed] money damages for a tort, and a favorable judi-\ncial order would redress the injury.” Id.\n In other words, Adco had alleged it experienced its own\ninjury under the theory that HJV’s lawyer had directly\nharmed its possibility of recovery by negotiating a cap on the\njury verdict amount. Id. Here, LJM does not cite its own injury\nas a general partner, but instead relies on the injury to the\npartnerships generally.\n The second case is Rawoof v. Texor Petroleum Co., 521 F.3d\n750 (7th Cir. 2008). There, the plaintiff claimed that the de-\nfendant improperly terminated a gas station’s franchise rights\nin violation of the Petroleum Marketing Practices Act. Id. at\n753. For standing, he alleged he was indirectly injured as the\nsole shareholder of the corporation that owned the gas sta-\ntion. Id. at 756. We agreed, concluding that he “satisfie[d] the\nminimum requirements of constitutional standing by virtue\nof an asserted indirect injury as [the corporation’s] sole share-\nholder.” Id.\n Although Rawoof hits closer to the mark, it does not save\nLJM’s complaint. We think it suﬃciently obvious that a sole\nshareholder in a corporation experiences a concrete injury\nwhen the corporation is injured. Cf. Korte v. Sebelius, 735 F.3d\n654, 667 (7th Cir. 2013) (“[B]ecause corporate ownership is\nclosely held, the mandate’s indirect eﬀect on the ﬁnancial in-\nterests of [Plaintiﬀs] as controlling shareholders is a concrete\ninjury suﬃcient to support Article III standing.”). But, in such\ncircumstances, the ﬁnancial relationship between a corpora-\ntion and its shareholders is clear. By contrast, the ﬁnancial re-\nlationships between LJM in its capacity as general partner and\nthe partnerships it managed are a mystery. Indeed, it is even\n\fNos. 23-3109 & 23-3138 23\n\npossible that the ﬁnancial terms of that relationship may have\ndiﬀered across the various partnerships. The complaint gives\nno inkling one way or the other.\n Lastly, LJM tries to establish injury in fact by claiming that\nDefendants’ actions caused it to experience loss of future busi-\nness and damage to its business reputation. LJM is correct that\na plaintiff’s “allegations of lost sales and damage to its busi-\nness reputation” can confer Article III standing. Lexmark Int’l,\nInc. v. Static Control Components, Inc., 572 U.S. 118, 125 (2014).\nBut there are two problems with this argument. First, LJM did\nnot raise it before the district court. See St. Paul Fire, 672 F.3d\nat 460 (arguments not raised before the district court are for-\nfeited). Second, even if LJM had preserved the issue for ap-\npeal, these purported business injuries appear nowhere in the\ncomplaint. 5 See Spokeo, 578 U.S. at 338 (“[A]t the pleading\nstage, the plaintiff must clearly … allege facts demonstrating\neach element [of standing].”) (internal quotation marks omit-\nted).\n 2. Substitution Under Rule 17(a)(3)\n Alternatively, LJM argues that the district court should\nhave permitted it to substitute the real party in interest under\nRule 17(a)(3). This rule provides that a court “may not dismiss\nan action for failure to prosecute in the name of the real party\nin interest until, after an objection, a reasonable time has been\n\n\n 5 The closest the complaint gets is in an attached appendix, where it\ndescribes “LJM’s” “very successful” history of proﬁting from its invest-\nment strategy. But this description of what had worked for LJM in the past\ndoes little to plausibly allege that it suﬀered a consequential business in-\njury on February 5 and 6. Nor does it overcome the signiﬁcant ambiguity\ncreated by the broad manner in which “LJM” is deﬁned in the complaint.\n\f24 Nos. 23-3109 & 23-3138\n\nallowed for the real party in interest to ratify, join, or be sub-\nstituted into the action.” Fed. R. Civ. P. 17(a)(3). The district\ncourt declined LJM’s request, concluding that Rule 17(a)(3)’s\nprocedure “is only available to a plaintiﬀ who has Article III\nstanding” and “does not answer the question of whether LJM\nitself can bring an action.” LJM Partners, 2023 WL 6311471, at\n9.\n To date, three circuits have considered whether a plaintiﬀ\nlacking Article III standing may avail itself of Rule 17(a)(3).\nLike the district court, the Sixth Circuit has concluded that\nsuch a plaintiﬀ cannot. See Zurich Ins. Co. v. Logitrans, Inc., 297\nF.3d 528, 531 (6th Cir. 2002) (stating that, without standing, a\nplaintiﬀ cannot “bring [an] action” or “make a motion to sub-\nstitute the real party in interest”). This view, sometimes called\nthe “nullity doctrine,” posits that when a plaintiﬀ lacks stand-\ning, there is no pending action into which the real party in\ninterest can be joined or substituted. The Fourth Circuit came\nto a similar conclusion, albeit in an unpublished decision. See\nHouse v. Mitra QSR KNE LLC, 796 F. App’x 783, 789–90 (4th\nCir. 2019) (“[I]t is not [Plaintiﬀ’s] lack of capacity or his real-\nparty-in-interest defect that forecloses a remedy under Rule\n17, but rather the fact that [he] had no legal existence—and,\nthus, no standing to bring suit—at the time of ﬁling.”).\n The Second Circuit, on the other hand, allows a plaintiﬀ\nwithout standing to employ Rule 17(a)(3). See Fund Liquidation\nHoldings LLC v. Bank of Am. Corp., 991 F.3d 370, 386 (2d Cir.\n2021) (“Only if the real party in interest either fails to materi-\nalize or lacks standing itself should the case be dismissed for\nwant of subject-matter jurisdiction.”). Naming the wrong\nparty in interest, the Second Circuit reasoned, “is akin to an\nerror in the complaint’s allegations of jurisdiction.” Id. at 388.\n\fNos. 23-3109 & 23-3138 25\n\nAnd, the court continued, “it is well-understood that a plain-\ntiﬀ may cure defective jurisdictional allegations, unlike defec-\ntive jurisdiction itself, through amended pleadings.” Id. at\n388–89.\n On balance, we tend to think that the Second Circuit has\nthe better approach. There is strong reason to believe that the\nnullity doctrine is not mandated by Article III’s Cases or Con-\ntroversy Clause. See 13A Wright & Miller’s Federal Practice &\nProcedure § 3531 n.61 (3d ed. 2025); Ethan C. Treacy, Note, The\nNullity Doctrine, 109 Va. L. Rev. 1331, 1364 (2023). To be sure,\n“the jurisdiction of the court depends upon the state of things\nat the time of the action brought.” Grupo Dataﬂux v. Atlas Glob.\nGrp., L.P., 541 U.S. 567, 570 (2004) (quoting Mollan v. Torrance,\n22 U.S. (9 Wheat.) 537, 539 (1824)); see also Lujan, 504 U.S. at\n570 n.5 (explaining that “standing is to be determined as of\nthe commencement of suit”). But it is also true that “[t]he state\nof things and the originally alleged state of things are not syn-\nonymous.” Rockwell Int’l Corp. v. United States, 549 U.S. 457,\n473 (2007) (citations omitted). As such, “demonstration that\nthe original allegations [are insuﬃcient] will defeat jurisdic-\ntion” as “will the withdrawal of those allegations, unless they\nare replaced by others that establish jurisdiction.” Id. (emphasis\nadded) (citations omitted). “Thus,” the Supreme Court con-\ntinued, “when a plaintiﬀ ﬁles a complaint in federal court and\nthen voluntarily amends the complaint, courts look to the\namended complaint to determine jurisdiction.” Id. at 473–74;\nsee Royal Canin U.S.A., Inc. v. Wullschleger, 604 U.S. 22, 35–36\n(2025) (“So changes in parties, or changes in claims, eﬀectively\nremake the suit. And that includes its jurisdictional basis: The\nreconﬁguration accomplished by an amendment may bring\nthe suit either newly within or newly outside a federal court’s\njurisdiction.”).\n\f26 Nos. 23-3109 & 23-3138\n\n If an amendment under Rule 15(a) can destroy or create\nfederal subject matter jurisdiction, it is diﬃcult to see why this\nreasoning should not extend to party substitutions under\nRule 17(a)(3). Here, LJM may have been able to show that the\nfacts on the ground demonstrate an injury in fact to a real\nparty in interest. That Rule 17(a)(3) was designed to avoid for-\nfeiture of meritorious claims further supports this approach.\nSee Treacy, supra at 1343 n.78 (“Rule 17 is ‘intended to prevent\nforfeiture when determination of the proper party to sue is\ndiﬃcult or when an understandable mistake has been\nmade[.]’”) (quoting Fed. R. Civ. P. 17 advisory committee’s\nnote to 1966 amendment). 6\n That said, we need not deﬁnitively decide this issue here,\nbecause even if LJM had been allowed to invoke Rule 17(a)(3),\nthe claims would have run headlong into CEA’s statute of\nlimitations.\n 3. Timeliness\n Even if LJM had been allowed to amend its complaint to\nadd real parties in interest, we agree with the district court\nthat the CEA’s two-year statute of limitations nevertheless\n\n\n 6 The pleading requirements contained in 735 Ill. Comp. Stat. 5/2-\n411(a) have little to do with whether LJM has itself experienced a concrete\ninjury in fact suﬃcient to confer Article III standing. Whether a plaintiﬀ\nhas experienced an injury and whether they can successfully recover for\nthat injury under relevant law are two distinct inquiries. See Lexmark, 572\nU.S. at 128 n.4 (“[T]he absence of a valid (as opposed to arguable) cause of\naction does not implicate subject-matter jurisdiction, i.e., the court’s statu-\ntory or constitutional power to adjudicate the case.”) (quoting Verizon Md.\nInc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 642–43 (2002) (emphasis in\noriginal)). To the extent the district court may have suggested otherwise,\nthat was error.\n\fNos. 23-3109 & 23-3138 27\n\nwould bar the CEA claims. A district court may dismiss on\nstatute-of-limitations grounds when it is “clear from the face\nof the amended complaint that it is hopelessly time-barred.”\nCancer Found., 559 F.3d at 675. And, as with Two Roads, LJM’s\ncomplaint provides all the information we need to assess its\ntimeliness.\n As noted above, the statute of limitations under the CEA\nis two years, and the clock begins “when the plaintiﬀ, in the\nexercise of due diligence, has actual or constructive\nknowledge of the conduct in question.” Dyer, 928 F.2d at 240\n(citations omitted); 7 U.S.C. § 25(c). Therefore, the statute of\nlimitations ran in February 2020. Although LJM timely ﬁled\nits original complaint in January 2019, its original complaint\nonly named the defendants as “John Does.” It was not until\nAugust 2022—almost two and a half years after the statute of\nlimitations ran—that LJM amended its complaint to name the\nactual defendants. LJM amended its complaint for a ﬁnal time\na month later in September 2022. When an initial complaint\nonly names Doe defendants, amended complaints that add\nthe names of defendants do not relate back to the date of the\nearlier complaint under Rule 15(c)(1)(C). See Herrera, 8 F.4th\nat 499. As a result, LJM’s Third Amended Complaint was ﬁled\noutside the statute-of-limitations period.\n Like Two Roads, LJM has forfeited the argument that its\nclaim accrued when it discovered Defendants’ scienter by fail-\ning to raise it below. See St. Paul Fire, 672 F.3d at 460. But, even\non the merits, LJM’s original complaints demonstrate that it\nhad reason to know of Defendants’ allegedly culpable mental\nstate when it filed them. For example, LJM claimed that it was\nvirtually impossible that the spike in implied volatility that\noccasioned its losses could have been caused by anything\n\f28 Nos. 23-3109 & 23-3138\n\nother than “manipulation by John Doe Defendants.” LJM can-\nnot now claim that it was not aware of Defendants’ scienter\nuntil years later.\n Because the claims are barred by the statute of limitations,\nto proceed, LJM must show that the district court abused its\ndiscretion when it denied LJM’s request for equitable tolling.\nGiven the record, however, LJM’s invocation of equitable es-\ntoppel fares no better than that of Two Roads.\n While acknowledging that LJM was more diligent than\nTwo Roads, the court reasonably concluded that LJM had not\ndiligently pursued its rights because even after the district\ncourt denied its ﬁrst motion for expedited discovery, LJM did\nnot ﬁx the overbreadth problems in its second motion. Alt-\nhough LJM is correct that the court expressed concern about\nthe ineﬃciency of granting LJM’s request while the MDL pro-\nceeded on a separate schedule, the record shows that the court\nalso raised concerns about the breadth of LJM’s request with\nsuﬃcient time for LJM to cure the issue. It was also reasonable\nfor the district court to conclude that LJM’s attorneys should\nhave anticipated the hurdles in identifying the relevant de-\nfendants and adjusted their pace accordingly. Given those\nfacts, we cannot say that the district court erroneously denied\nLJM equitable relief. Accordingly, even if LJM had been al-\nlowed to add additional parties under Rule 17(a)(3), the dis-\ntrict court’s refusal to apply equitable tolling was not an abuse\nof discretion.\n * *\n For the foregoing reasons, the judgment of the district\ncourt is AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11241700/", "author_raw": "LEE, Circuit Judge"}]}	JACKSON-AKIWUMI	LEE	PRYOR	1		{"JACKSON-AKIWUMI": ", Circuit", "LEE": ", Circuit", "PRYOR": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10775115/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,775,116	LJM Partners, Ltd. v. Barclays Capital, Incorporated	2026-01-15	23-3109	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before JACKSON-AKIWUMI, LEE, and PRYOR, Circuit Judges.", "parties": "", "opinions": [{"author": "LEE, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNos. 23-3109 & 23-3138\nLJM PARTNERS, LTD. and TWO ROADS SHARED TRUST,\n Plaintiﬀs-Appellants,\n v.\n\nBARCLAYS CAPITAL, INCORPORATED, et al.,\n Defendants-Appellees.\n ____________________\n\n Appeals from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n Nos. 1:19-cv-368 & 1:20-cv-831 — Manish S. Shah, Judge.\n ____________________\n\n ARGUED MAY 23, 2024 — DECIDED JANUARY 15, 2026\n ____________________\n\n Before JACKSON-AKIWUMI, LEE, and PRYOR, Circuit Judges.\n LEE, Circuit Judge. On February 5, 2018, the S&P 500\nplunged. As a result, the VIX—a Chicago Board of Exchange\n(“Cboe”) index that measures the expected volatility of the\nS&P 500—increased abruptly. LJM Partners, Ltd. and Two\nRoads Shared Trust (“Plaintiﬀs”) traded options on the Chi-\ncago Mercantile Exchange (“CME”). They took positions in\ncertain options assuming a low degree of market volatility.\nThis strategy proved catastrophic when volatility skyrocketed\n\f2 Nos. 23-3109 & 23-3138\n\non February 5, 2018. As a result, LJM and Two Roads lost\nenormous amounts of the money they managed on the CME.\n LJM and Two Roads ﬁled two separate lawsuits in the\nNorthern District of Illinois, each alleging that several “John\nDoe Defendants” had manipulated the VIX to impact the S&P\n500-based derivative markets in violation of the Commodity\nExchange Act (“CEA”), 7 U.S.C. §§ 6b, 6c, 9, 13, 25. After en-\ngaging in several years of litigation to identify the John Doe\nﬁrms, Plaintiﬀs eventually amended their complaints to in-\nclude the names of eight ﬁrms (“Defendants”), who they\nclaim manipulated the VIX on February 5, 2018.\n Defendants moved to dismiss both complaints, and the\ndistrict court granted their motion. First, the district court de-\ntermined that LJM’s complaint failed to allege an injury in fact\nto support Article III standing. Second, it held that Two\nRoads’s claims were barred by the CEA’s two-year statute of\nlimitations and declined to apply equitable tolling to excuse\nthe untimeliness. LJM and Two Roads appealed. We aﬃrm.\n I\nA. Plaintiﬀs’ Trading Strategy\n LJM was a commodity trading advisor and commodity\npool operator that managed approximately ﬁfty accounts.\nThese accounts included those of investors as well as six lim-\nited partnership funds for which LJM served as general part-\nner. LJM’s aﬃliate, LJM Funds Management, Ltd., managed a\npublicly traded mutual fund called the LJM Preservation and\n\fNos. 23-3109 & 23-3138 3\n\nGrowth Fund (the “Preservation Fund”). 1 That fund was or-\nganized as a series of shares of beneﬁcial interest in Two\nRoads.\n The CME is a global futures and options marketplace\nbased in Chicago. The CME lists contracts for various futures,\nincluding a standard S&P 500 Future and the E-mini S&P 500\nFuture (“E-mini”), which is one-ﬁfth the size of the standard\nversion. The CME also oﬀers standard options on these S&P\n500 Futures, meaning that—while the underlying instrument\nis a futures contract—the holder has the right (but not an ob-\nligation) to purchase or sell the referenced S&P 500 Future at\nthe strike price (i.e., the price at which the option can be exer-\ncised) on the designated expiration date. LJM and the Preser-\nvation Fund traded these options to buy and sell S&P 500 Fu-\ntures and E-minis on the CME.\n The VIX is a Cboe-created benchmark volatility index that\nmeasures the thirty-day expected volatility in the S&P 500. It\nis calculated based on the midpoint of bid-ask prices for cer-\ntain SPX Options.\n Plaintiﬀs centered their trading philosophies around the\nso-called “volatility premiums” baked into options prices.\nWhen a purchaser bought an option from LJM or the Preser-\nvation Fund, it paid the companies a premium to protect itself\nagainst volatility in the U.S. equity markets. In exchange for\nthis premium, Plaintiﬀs took on the risk of signiﬁcant market\n\n\n\n 1 Although Two Roads brings this suit, the Preservation Fund is the\nentity that made the transactions at issue. In the facts that follow, we some-\ntimes refer to the trading entities as “Plaintiﬀs” for ease of reference, even\nthough Two Roads was not itself transacting options.\n\f4 Nos. 23-3109 & 23-3138\n\nmoves. Essentially, Plaintiﬀs bet that high volatility would\nnot materialize, and this is how they made their proﬁts.\n According to Plaintiﬀs, this strategy was successful be-\ncause options buyers typically overestimate the likelihood of\nhigh volatility in the market, meaning that implied volatility\n(the volatility investors predict will occur) generally outpaces\nactual volatility. As a result, Plaintiﬀs say, they proﬁted from\nthese premiums because volatility typically does not rise as\nmuch as investors fear.\nB. Events of February 5, 2018\n This strategy generally worked well for Plaintiﬀs until\nmarket volatility skyrocketed on February 5, 2018. Around\n10:30 a.m. that day, the S&P 500 began to sharply decline. As\nthe S&P 500 declined, the VIX increased—ﬁrst in an orderly\nmanner and then at an unprecedented rate beginning around\n1:20 p.m. By 1:57 p.m., the VIX had risen to 27.97, an increase\nof 61.6% from where it opened that day. Between February 5\nand 6, 2018, the S&P 500 dropped 4.1%.\n When the market began to decline on February 5, Plaintiﬀs\nresponded by making adjustment trades to reduce the risk\nthat they would lose money on the options they sold. As the\nmarket continued to drop, they entered into more and more\nadjustment trades, which became increasingly more expen-\nsive as the VIX continued to climb.\n By the close of trading on February 5, 2018, LJM had ad-\njusted approximately 87.9% of its opening short put posi-\ntions 2 at purportedly inﬂated prices—more trades than it had\n\n\n\n 2 A “short put” is simply the sale of an option on a security.\n\fNos. 23-3109 & 23-3138 5\n\never made in a single day. LJM lost approximately $334.9 mil-\nlion on February 5, nearly 65% of its net managed assets.\nMeanwhile, the Preservation Fund lost $430 million by the\nclose of trading on that day, which amounted to almost 56%\nof its net managed assets.\n Plaintiﬀs’ troubles continued into the next day. As a result\nof their losses on February 5, Wells Fargo—Plaintiﬀs’ futures\nclearing merchant—required them to post millions of dollars\nin additional assets by the February 6 opening bell. When nei-\nther LJM nor the Preservation Fund could meet this demand,\nWells Fargo required them to promptly close the positions\nthey held in their Wells Fargo accounts. On February 6, LJM\nand the Preservation Fund short sold E-minis at very low\nprices to oﬀset their options positions.\n All told, on February 5 and 6, LJM lost approximately\n$446.8 million (or approximately 86.5%) of the total assets it\nmanaged. The Preservation Fund lost $610 million (or approx-\nimately 80%) of its managed assets.\nC. Plaintiﬀs’ Market Manipulation Theory\n Defendants Barclays Capital Inc.; Morgan Stanley & Co.\nLLC; DRW Securities, LLC; CTC, LLC; Optiver US LLC; Vo-\nlant Liquidity, LLC; Akuna Securities LLC; and IMC-Chicago,\nLLC, doing business as IMC Financial Markets, are all Cboe-\napproved market makers that traded in SPX Options. SPX Op-\ntions are another type of option, but they are available for\ntrading solely on Cboe.\n Because SPX Options, options on S&P 500 Futures, and op-\ntions on E-minis are all priced based on the S&P 500, they are\ncorrelated and move in tandem. According to Plaintiﬀs, each\n\f6 Nos. 23-3109 & 23-3138\n\nof these ﬁrms pursued a “long” volatility strategy—that is,\nthey stood to gain when implied volatility was high.\n LJM and Two Roads do not view their losses on February\n5 and 6 as the natural consequence of their investment strat-\negy. Instead, they describe a detailed scheme by which De-\nfendants allegedly manipulated the market, which caused\nPlaintiﬀs to suﬀer losses that they otherwise would not have\nincurred. Although the precise mechanisms of the fraud are\ncomplicated (and not relevant to this appeal), Plaintiﬀs’ the-\nory boils down to this: Defendants each repeatedly quoted in-\nﬂated bid-ask prices for out-of-the-money 3 SPX Options dur-\ning the afternoon of February 5 and the morning of February\n6. Plaintiﬀs claim this increased the midpoint of the SPX Op-\ntion price on which the VIX is based.\n According to Plaintiﬀs, Defendants’ plan worked—their\nfalse quotes artiﬁcially inﬂated the prices at which SPX Op-\ntions were sold. And, because SPX Options move in tandem\nwith S&P 500 Futures and E-minis, Defendants’ actions in\nturn increased implied volatility and caused the prices on\nPlaintiﬀs’ trades to rise. This, Plaintiﬀs say, is what caused\nthem to lose over one billion dollars in combined managed\nassets over two days. In support, Plaintiﬀs point out that the\nFebruary 5 VIX spike was 13.7 standard deviations away from\nthe mean settlement price during the previous twelve months,\na deviation they insist is “statistically impossible to explain as\na result of rational fair market activity.”\n\n\n\n 3 An option is “out-of-the-money” when its strike price is above the\ncurrent market price. As a result, the option has no extrinsic value because\nexercising it would not be proﬁtable.\n\fNos. 23-3109 & 23-3138 7\n\nD. Procedural History\n LJM launched its lawsuit on January 18, 2019, alleging that\nDefendants placed “artiﬁcial and manipulative bid-ask\nquotes on out-of-the-money SPX Options traded on the\nCBOE” in violation of the CEA and 17 C.F.R. § 180.2. Accord-\ning to LJM, these fraudulent quotes, which Defendants had\nno intent to execute, increased the VIX, thereby favoring De-\nfendants’ investment strategies that assumed high volatility.\nBut, because LJM lacked the information necessary to identify\nthe entities that had allegedly manipulated the market, its\ncomplaint merely named “John Doe” defendants as place-\nholders.\n Mindful that the CEA carries a two-year statute of limita-\ntions, 7 U.S.C. § 25(c), LJM asked the district court on January\n24, 2019, for leave to conduct expedited discovery to ascertain\nthe identity of potential defendants. Before the district court\ncould rule on LJM’s motion, however, the Judicial Panel on\nMultidistrict Litigation deemed the case to be part of a multi-\ndistrict litigation involving similar claims of VIX manipula-\ntion pending in the Northern District of Illinois (we will refer\nto this as the “VIX MDL”). The district court overseeing the\nVIX MDL denied LJM’s motion to expedite discovery without\nprejudice. Although the court acknowledged it was “sensitive\nto the … statute of limitations,” it believed LJM was prema-\nturely seeking broad merits discovery and thought it im-\nportant to keep LJM’s case on the same track as the rest of the\nMDL.\n Four months later, LJM ﬁled a second motion to expedite\ndiscovery. The district court again denied it, concluding that,\nalthough the discovery schedule in the VIX MDL “put[] LJM\nin a worse position than it was when it ﬁrst asked for Doe\n\f8 Nos. 23-3109 & 23-3138\n\ndiscovery,” the risks associated with addressing the statute-\nof-limitations defense later in the proceedings did “not out-\nweigh [its] concern over coordinating all claims of VIX ma-\nnipulation.” In the court’s view, LJM was asking for “exten-\nsive merits discovery to identify [the Doe defendants],” which\nwould put LJM ahead of the other VIX MDL plaintiﬀs. Thus,\nit concluded, allowing LJM to pursue a second, separate track\nof discovery was not “eﬃcient under the[] circumstances.”\n On February 4, 2020—two days before the two-year anni-\nversary of the February 2018 market decline—Two Roads\nﬁled a complaint asserting the same market manipulation the-\nory as LJM. And, like LJM, Two Roads also named only “John\nDoes” as defendants.\n Two Roads’s case was immediately reassigned to the VIX\nMDL, and LJM’s and Two Roads’s cases proceeded in tan-\ndem. Later that month, the two parties ﬁled a joint motion for\nexpedited discovery, claiming this third attempt was more tai-\nlored “to target the identity of only those traders who manip-\nulated the relevant instruments.” The court agreed and\ngranted the motion, ﬁnding the request was “much closer to\nsimply identifying the ‘who’ and not the ‘what’ or ‘how’ of\nthe claims.” Given this, the court was less concerned that the\ndiscovery request was “being used as a substitute for pre-\ncomplaint investigation.”\n Shortly thereafter, Plaintiﬀs served Cboe with a subpoena\nrequesting the February 5 and 6 trading records. Cboe moved\nto quash the subpoena on May 21, 2020, insisting that the re-\nquest went “well beyond” what the district court held was the\n“proper scope of Doe discovery.” The court granted the mo-\ntion in part. It agreed with Plaintiﬀs that Cboe had not shown\nthat the volume of information posed an undue burden, but\n\fNos. 23-3109 & 23-3138 9\n\nit nevertheless narrowed the subpoena to bids and asks lim-\nited to “near-term and next-term SPX options used to calcu-\nlate the spot VIX … and from the normal-hours trading peri-\nods on February 5 and 6 and the extended-hours trading pe-\nriod from the early morning of February 6, 2018.” The court\nalso ordered Cboe to use aliases when producing the records\nto protect the identities of market participants.\n Plaintiﬀs received Cboe’s ﬁrst production of this infor-\nmation on July 7, 2020. Then, after discovering an error in the\nalgorithm it had used to generate the aliases that appeared in\nthe data, Cboe produced a corrected version of the dataset to\nPlaintiﬀs on November 20, 2020. In January 2021, after rerun-\nning their analysis with Cboe’s new dataset, Plaintiﬀs asked\nCboe to produce the identities of ﬁve of the seventeen aliases\npresent in the dataset. Cboe in turn informed those ﬁrms that\nPlaintiﬀs had identiﬁed them as potential defendants.\n Opposing Plaintiﬀs’ eﬀorts to obtain their identities, the\nﬁrms then ﬁled an anonymous motion to intervene to prevent\nthe disclosure, which the court granted. Meanwhile, Cboe\nalso refused to provide the identities to Plaintiﬀs, leading\nthem to ﬁle a motion to compel in May 2021, which the district\ncourt later denied, believing that the improper conduct Plain-\ntiﬀs alleged in their motion was “diﬀerent than the conduct\nalleged in the complaints.”\n A short time later, Plaintiﬀs received leave from the court\nto amend the complaints. And they ﬁled their amended com-\nplaints in November 2021, still naming “John Does” as de-\nfendants. This time, the amended complaints alleged that\nnine ﬁrms manipulated SPX Options to increase the VIX,\nwhich in turn caused artiﬁcially inﬂated prices for S&P 500\nFuture and E-mini contracts.\n\f10 Nos. 23-3109 & 23-3138\n\n Plaintiﬀs renewed their motion to compel on December 17,\n2021. Satisﬁed that Plaintiﬀs ﬁnally had shown good cause for\nearly discovery, the court granted the motion to compel on\nAugust 16, 2022, and required Cboe to identify the names of\neight of the nine ﬁrms that were the subject of the motion.\nCboe provided Plaintiﬀs with those names, and on August 30,\n2022, Plaintiﬀs ﬁled a sealed Second Amended Complaint\nnaming seven of the eight ﬁrms as defendants. And, just over\na month later, Plaintiﬀs ﬁled a Third Amended Complaint\nnaming the eight Defendants before us now.\n On November 4, 2022, the ﬁrms jointly moved to dismiss\nLJM’s complaint for lack of subject matter jurisdiction under\nFederal Rule of Civil Procedure 12(b)(1). They also moved to\ndismiss both complaints for failure to state a claim under Rule\n12(b)(6). The district court granted the motions and dismissed\nboth complaints. First, it found that LJM had failed to allege\nan injury in fact suﬃcient to establish Article III standing. As\nthe court saw it, the only injuries alleged in the complaint\nwere those borne by LJM’s customers, not LJM itself. The\ncourt also rejected LJM’s request to substitute a real party in\ninterest under Rule 17(a)(3), concluding that the procedure “is\nonly available to a plaintiﬀ who has Article III standing.” LJM\nPartners, Ltd. v. Barclays Cap. Inc., No. 19 CV 368, 2023 WL\n6311471, at 9 (N.D. Ill. Sept. 28, 2023). Accordingly, the court\ndismissed without prejudice LJM’s complaint for lack of juris-\ndiction and denied leave to amend, concluding that any\namendment would be futile due to CEA’s two-year limita-\ntions period.\n Two Roads’s complaint met a similar fate. Faced with the\nquestion of when a CEA claim accrues for statute-of-limita-\ntion purposes, the district court found that the claim accrues\n\fNos. 23-3109 & 23-3138 11\n\n“when the plaintiﬀ, in the exercise of due diligence, has actual\nor constructive knowledge of the conduct in question.” In\nTwo Roads’s case, this was on February 6, 2018, when it\nlearned of its injury. And, because Two Roads submitted its\nThird Amended Complaint on September 28, 2022—over four\nyears later—the court found it untimely pursuant to 7 U.S.C.\n§ 25(c). Two Roads also asked the court in the alternative to\napply equitable tolling to account for the time it was conduct-\ning Doe discovery. But, the district court refused to do so,\nﬁnding that Two Roads had failed to diligently pursue its\nclaim.\n In the interest of completeness, the district court also ex-\namined whether Two Roads had stated a CEA claim on the\nmerits and found it did not. The court rejected Two Roads’s\nmarket manipulation claim for failing to allege that Defend-\nants possessed the speciﬁc intent to manipulate the price of a\nﬁnancial instrument. Moreover, it determined that both of\nTwo Roads’s CEA claims were barred by the statute of limita-\ntions.\n LJM and Two Roads appealed, and we consolidated the\nappeals for disposition.\n II\n Our analysis proceeds in two steps. First, we determine\nwhether Two Roads’s complaint was timely and, if not,\nwhether the district court abused its discretion by refusing to\napply equitable tolling. Second, we address whether LJM’s\ncomplaint suﬃciently alleges Article III standing and whether\nLJM’s own complaint was ﬁled in a timely manner.\n\f12 Nos. 23-3109 & 23-3138\n\nA. Two Roads\n 1. Timeliness\n A plaintiﬀ seeking relief under the CEA must bring an ac-\ntion no later than “two years after the date the cause of action\narises.” 7 U.S.C. § 25(c). The principal issue for Two Roads is\nwhether its complaint was timely, and, if not, whether the dis-\ntrict court abused its discretion in refusing to apply equitable\ntolling to save its claims.\n As a preliminary matter, Two Roads argues that the dis-\ntrict court should have waited until summary judgment to\nrule on the timeliness of its claims because complaints “need\nnot anticipate and overcome aﬃrmative defenses, such as the\nstatute of limitations.” Cancer Found., Inc. v. Cerberus Cap.\nMgmt., LP, 559 F.3d 671, 674 (7th Cir. 2009). But a district court\nmay dismiss on statute-of-limitations grounds where it is\n“clear from the face of the amended complaint that it is hope-\nlessly time-barred.” Id. at 675. Here, Two Roads’s complaints\nprovide all the information we need to assess their timeliness.\n Although Two Roads ﬁled its initial complaint on Febru-\nary 4, 2020, it did not name the Defendants until it ﬁled its\nSecond and Third Amended Complaints on August 30 and\nSeptember 28, 2022. Two Roads urges us to focus on the ﬁrst\ndate, arguing that its amended complaints relate back to the\nﬁling of the original complaint under Rule 15(c)(1)(C)(ii). This\nrule allows an amendment adding a defendant to relate back\nto the ﬁling date of the original complaint if the new defend-\nant “knew or should have known that the action would have\nbeen brought against it, but for a mistake concerning the proper\nparty’s identity.” Fed. R. Civ. P. 15(c)(1)(C)(ii) (emphasis\nadded). But, as we have held elsewhere, a plaintiﬀ’s\n\fNos. 23-3109 & 23-3138 13\n\n“conscious choice” to ﬁle a complaint against a John Doe even\nthough it does not know the defendant’s identity is not a\n“mistake” within the meaning of Rule 15(c)(1)(C)(ii). Herrera\nv. Cleveland, 8 F.4th 493, 499 (7th Cir. 2021). Therefore, the rel-\nevant ﬁling date for limitations purposes is August 30, 2022,\nfor all Defendants except IMC-Chicago, which was not added\nas a defendant until the ﬁling of the Third Amended Com-\nplaint on September 28, 2022.\n We next examine when the CEA’s two-year clock began to\nrun. To do so, we follow the “discovery rule,” which provides\nthat “the statute commences to run when the plaintiﬀ, in the\nexercise of due diligence, has actual or constructive\nknowledge of the conduct in question.” Dyer v. Merrill Lynch,\nPierce, Fenner & Smith, Inc., 928 F.2d 238, 240 (7th Cir. 1991).\nAccording to Defendants, Two Roads had “actual or construc-\ntive knowledge” of their alleged market manipulation on Feb-\nruary 6, 2018.\n In Two Roads’s view, its claim accrued only once it discov-\nered Defendants’ scienter (that is, their intent to manipulate\nor defraud the market). And this discovery, according to Two\nRoads, did not occur until sometime after it received the cor-\nrected Cboe data in November 2020. To support this argu-\nment, Two Roads points to the fraud-speciﬁc discovery rule\noutlined in Merck & Co., Inc. v. Reynolds, 559 U.S. 633 (2010),\nwhich provides that a fraud is “discovered” only when a\nplaintiﬀ knows or should know the “facts that will form the\nbasis” of the claim. Id. at 646. In Merck, the Supreme Court\nconcluded that a defendant’s intent to manipulate or defraud\nis among the facts necessary to discover the wrongful conduct\nfor accrual purposes. Id. at 648–49.\n\f14 Nos. 23-3109 & 23-3138\n\n Before moving to the substance of Two Roads’s argument,\nwe note that the plaintiﬀs’ claims in Merck arose under § 10(b)\nof the Securities Exchange Act of 1934, not the CEA. And there\nis some reason to question Merck’s applicability here. For ex-\nample, the text of the statute of limitations at issue in Merck\ncontains additional language that is not present in 7 U.S.C.\n§ 25(c). Compare 28 U.S.C. § 1658(b) (stating that claims may\nnot be brought more than “2 years after the discovery of the facts\nconstituting the violation”) (emphasis added), with 7 U.S.C.\n§ 25(c) (stating only that a CEA claim “shall be brought not\nlater than two years after the date the cause of action arises”)\n(emphasis added). We have previously observed that this lan-\nguage makes Merck’s holding “hard to impute” to the CEA.\nPremium Plus Partners, L.P. v. Goldman, Sachs & Co., 648 F.3d\n533, 536 (7th Cir. 2011). However, as we did in Premium Plus,\nwe will assume Merck applies, because doing so does not\nchange the outcome of our analysis. Id.\n First, we note that Two Roads failed to raise this scienter-\nbased argument to the district court, thereby forfeiting it on\nappeal. See St. Paul Fire & Marine Ins. Co. v. Schilli Transp.\nServs. Inc., 672 F.3d 451, 460 (7th Cir. 2012). But even if Two\nRoads had done so, we would still be unconvinced.\n Despite its insistence that it had no way of ascertaining\nDefendants’ scienter until after it had received the Cboe data,\nthe allegations in Two Roads’s complaint indicate otherwise.\nFor example, its initial complaint asserted that “it is virtually\nimpossible that the historic increase in the VIX on February 5,\n2018 was the result of legitimate market activity, and instead,\nsupports the conclusion that it resulted due to manipulation by\nJohn Doe Defendants.” (emphasis added). Indeed, Defend-\nants’ intent to manipulate formed the crux of Two Roads’s\n\fNos. 23-3109 & 23-3138 15\n\noriginal CEA claims. Thus, Two Roads’s current argument is\nfatally undermined by its own allegations.\n On a related note, Two Roads insists the district court\nerred in assuming that its claim accrued on February 6, 2018.\nAlthough it learned of its losses that day, Two Roads argues,\nit did not understand that its losses were caused by illegal\nmarket manipulation until much later. But Two Roads had\nreason to know the cause by at least February 4, 2020, when it\nﬁled its original complaint. Even assuming the clock started\nthat day, Two Roads still took over two years to name Defend-\nants. Thus, even under Two Roads’s theory of accrual, its op-\nerative complaint was untimely under 7 U.S.C. § 25(c).\n 2. Equitable Tolling\n In the alternative, Two Roads contends that the district\ncourt should have granted it the beneﬁt of equitable tolling,\ngiven the unforeseen diﬃculties it experienced in identifying\nDefendants. We disagree.\n “Equitable tolling halts the limitations clock ‘when a liti-\ngant has pursued his rights diligently but some extraordinary\ncircumstance prevents him from bringing a timely action.’”\nHerrera, 8 F.4th at 499 (quoting Xanthopoulos v. U.S. Dep’t of\nLab., 991 F.3d 823, 831 (7th Cir. 2021)). In determining whether\nto apply equitable tolling, we “look at ‘the entire hand’ that [a\nplaintiﬀ] was dealt.” Carpenter v. Douma, 840 F.3d 867, 872 (7th\nCir. 2016) (quoting Socha v. Boughton, 763 F.3d 674, 686 (7th\nCir. 2014)). In other words, equitable tolling requires a “‘ﬂex-\nible standard that encompasses all of the circumstances that\n[a plaintiﬀ] faced and the cumulative eﬀect of those circum-\nstances’ to determine whether they were ‘extraordinary’ and\ntruly prevented timely ﬁling of his [claim].” Id. (quoting Socha,\n\f16 Nos. 23-3109 & 23-3138\n\n763 F.3d at 686). The plaintiﬀ bears the burden of showing it\nsatisﬁed the requirements for equitable tolling, Menominee In-\ndian Tribe of Wis. v. United States, 577 U.S. 250, 256 (2016), and\nwe review a district court’s denial of equitable tolling for\nabuse of discretion, Lax v. Mayorkas, 20 F.4th 1178, 1181 (7th\nCir. 2021). Finally, it is worth noting that “[f]ederal courts\nhave typically extended equitable relief only sparingly.” Her-\nrera, 8 F.4th at 499 (quoting Irwin v. Dep’t of Veterans Aﬀs., 498\nU.S. 89, 96 (1990)).\n Two Roads claims that several “external roadblocks” pre-\nvented it from meeting the statute of limitations. First, it in-\nsists that the stay of discovery in the MDL (which lasted until\nApril 21, 2020) barred it from ascertaining Defendants’ iden-\ntities. But Two Roads did not even ﬁle its initial complaint un-\ntil February 2020, just days before the two-year limitations pe-\nriod expired. As a sophisticated party, Two Roads should\nhave anticipated the diﬃculties in obtaining identiﬁcation in-\nformation from the Cboe and the need to ﬁle its complaint\nwell before the passage of the two-year period.\n Second, Two Roads contends it was delayed for over a year\nwhile it attempted to force Cboe to provide Defendants’ iden-\ntiﬁcation. But the district court correctly concluded that these\ndelays were the kind of ordinary delays inherent to litigation\nand did not warrant equitable tolling. See Carpenter, 840 F.3d\nat 872 (aﬃrming the denial of equitable tolling because the\nplaintiﬀ’s circumstances were “nothing but ordinary”).\n Finally, Two Roads suggests it was delayed because Cboe\ninitially had provided it with an erroneous SPX Options da-\ntaset. But this only costed the parties several months, and\nwhen we consider the “cumulative … circumstances,” this de-\nlay pales in comparison to Two Roads’s overall delay in ﬁling\n\fNos. 23-3109 & 23-3138 17\n\nthe lawsuit in the ﬁrst place. Id. As such, we do not think the\nproduction of the erroneous dataset alone warrants equitable\ntolling under these circumstances.\n In sum, the district court did not abuse its discretion when\nit denied Two Roads’s request for equitable tolling. We echo\nthe district court’s suggestion that the outcome may have\nbeen diﬀerent if Two Roads had ﬁled its complaint soon after\ndiscovering its injury and had diligently sought to uncover\nDefendants’ identities. But Two Roads’s failure to ﬁle suit un-\ntil two days before the ending of the limitations period under-\nmines any claims of diligence. See Herrera, 8 F.4th at 499. We\ntherefore aﬃrm the district court’s dismissal of Two Roads’s\ncomplaint. 4\nB. LJM\n 1. Article III Standing\n Before addressing the claims, we have “an obligation to\nassure ourselves” that LJM has Article III standing. Daim-\nlerChrysler Corp. v. Cuno, 547 U.S. 332, 340 (2006) (quoting\nFriends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528\nU.S. 167, 180 (2000)). We review a decision to dismiss for lack\nof standing de novo. Dinerstein v. Google, LLC, 73 F.4th 502, 511\n(7th Cir. 2023).\n\n\n\n\n 4 The district court assessed “in the interest of completeness” whether\nTwo Roads stated a CEA price manipulation and manipulative device\nclaim on the merits. LJM Partners, 2023 WL 6311471, at 12. Because it is\nclear that Two Roads’s complaint was untimely and that the district court\ndid not abuse its discretion in denying equitable tolling, we need not reach\nthis issue.\n\f18 Nos. 23-3109 & 23-3138\n\n For Article III standing, a plaintiﬀ must have “(1) suffered\nan injury in fact, (2) that is fairly traceable to the challenged\nconduct of the defendant, and (3) that is likely to be redressed\nby a favorable judicial decision.” Spokeo, Inc. v. Robins, 578\nU.S. 330, 338 (2016) (citing Lujan v. Defs. of Wildlife, 504 U.S.\n555, 560 (1992)). At the pleading stage, “general factual alle-\ngations of injury resulting from the defendant’s conduct may\nsuffice, for on a motion to dismiss we presume that general\nallegations embrace those specific facts that are necessary to\nsupport the claim.” Lujan, 504 U.S. at 561 (citation modified).\nAs the party invoking federal jurisdiction, LJM bears the bur-\nden of establishing that standing exists. See id.\n As is often the case, our standing analysis focuses on\nwhether LJM meets Article III’s injury-in-fact requirement.\n“To establish injury in fact, a plaintiff must show that he or\nshe suffered ‘an invasion of a legally protected interest’ that\nis ‘concrete and particularized’ and ‘actual or imminent, not\nconjectural or hypothetical.’” Spokeo, 578 U.S. at 339 (quoting\nLujan, 504 U.S. at 560). Although concrete injuries may be tan-\ngible or intangible, they must be “real[] and not abstract.” Id.\nat 340 (internal quotation marks omitted). In other words, an\ninjury “must actually exist.” Id. Economic harms are among\nthe “most obvious” of concrete injuries. TransUnion LLC v.\nRamirez, 594 U.S. 413, 425 (2021).\n At first blush, LJM’s complaint appears to allege the sort\nof concrete economic injury the Supreme Court endorsed in\nTransUnion. For example, it alleges that, “[a]s a direct result of\nDefendants’ unlawful conduct, LJM has suﬀered actual damages\nand injury in fact due to incurring losses when transacting options\non S&P 500 Futures and E-minis at artiﬁcial prices on Febru-\nary 5 and 6, 2018.” (emphasis added). It also claims that “LJM\n\fNos. 23-3109 & 23-3138 19\n\nwas further legally injured and suﬀered injury in fact when it\ntransacted in options on S&P 500 Futures and/or E-minis on\nFebruary 5 and 6, 2018 in an artiﬁcial and manipulated market\noperating with the artiﬁcial prices caused by Defendants.”\n(emphasis added). What is more, the complaint quantiﬁes\nthese losses, saying that “[b]y the close of trading on February\n6, 2018, the net asset value of LJM—on a marked-to-market\n[sic] basis—had dropped to approximately $70.5 million, an\n86.5% decline in the [sic] LJM’s net assets.”\n These allegations seemingly suggest LJM experienced ﬁ-\nnancial losses through its trading activities on February 5 and\n6, which would typically satisfy Article III’s injury-in-fact re-\nquirement. See TransUnion, 594 U.S. at 425. But we cannot\nread these allegations in isolation; rather, we must review\nthem in the context of the entire complaint. Appvion, Inc. Ret.\nSav. & Emp. Stock Ownership Plan by & through Lyon v. Buth, 99\nF.4th 928, 947 (7th Cir. 2024) (reminding that “our job is to\nread the complaint as a whole” and not to parse it “piece by\npiece”). Particularly salient here is footnote four of the com-\nplaint, which states: “For ease, throughout the Complaint,\nLJM and the funds it managed are collectively referred to as the\nentity harmed by Defendants’ conduct and referred to as\n‘LJM.’” (emphasis added).\n Thus, when the complaint refers to the losses “LJM” in-\ncurred, those “losses” include the losses suﬀered by LJM’s cli-\nents whose money LJM managed. And, based on the way LJM\nhas defined itself in its complaint, we have no way of know-\ning what proportion of the “losses” were suffered by LJM it-\nself versus its clients. Indeed, the structure of the complaint\nmakes it entirely possible that LJM did not lose any of its own\nmoney through its trades on February 5 and 6, 2018.\n\f20 Nos. 23-3109 & 23-3138\n\n In Indemniﬁed Capital Investments, S.A. v. R.J. O’Brien and\nAssociates, Inc., we held that investment losses to a client’s ac-\ncount do not automatically accrue to the entity that managed\nthe account. 12 F.3d 1406, 1409–10 (7th Cir. 1993). In that case,\nIndemniﬁed Capital Investments (“ICI”), an investment com-\npany, sued a commodity futures trader for breach of ﬁduciary\nduty and violations of the CEA. Id. at 1407. ICI alleged it ex-\nperienced losses in (1) client accounts that did not contain any\nof the company’s own funds, and (2) house accounts that were\npartially funded with the company’s own money. Id. at 1407–\n08. As for the former, we held that “the losses incurred by the\nICI customer accounts accrued only to ICI’s customers and\nare too attenuated to create standing for ICI.” Id. at 1409. As\nfor the latter, we said that “[i]f ICI actually funded the house\naccount and suﬀered loss, then it ha[d] satisﬁed the injury in\nfact requirement.” Id. at 1410.\n Consistent with our holding in ICI, the losses LJM’s clients\nincurred when those funds were liquidated “are too attenu-\nated to create standing” for LJM. Id. at 1409. And, because of\nthe ambiguity created by footnote four of LJM’s complaint,\nwe do not know whether LJM actually lost any of its own\nmoney by virtue of its trades on February 5 and 6, 2018. As\nsuch, we conclude that LJM’s general allegations of trading\nlosses are insuﬃcient to constitute an Article III injury in fact.\n LJM, however, advances a second argument. The com-\npany contends that it has alleged a concrete injury because its\ncomplaint says LJM served as general partner for six limited\npartnership funds it managed. The problem is that the com-\nplaint does not allege that these particular limited partner-\nships were among the accounts that lost money on February\n5 and 6, 2018. Nor does the complaint specify exactly how\n\fNos. 23-3109 & 23-3138 21\n\nLJM’s role as a general partner of these funds caused it con-\ncrete injury. Still, LJM insists such an inference is “common\nsense.” For example, LJM’s opening brief says that “[g]eneral\npartners in limited partnerships have powers, obligations,\nand liabilities arising from that role.” It also states that “gen-\neral partners reserve either ownership interests in partnership\nassets or compensation rights, or both.”\n But such attorney arguments are not enough. Although\nwe are to draw all reasonable inferences in LJM’s favor, we\nneed more before we can infer that LJM was injured vis-à-vis\nits capacity as a general partner in these limited partnerships.\nFor example, did the partnerships in which LJM was a general\npartner incur any losses due to Defendants’ alleged conduct?\nDid LJM invest any of its own money in these partnerships?\nAnd how is LJM compensated for its role as general partner—\ndoes it share in the profits and losses or does it receive a flat\nadministration fee regardless of performance? The complaint\nmakes no attempt to fill these gaps, and we will not engage in\n“raw guesswork” to answer them ourselves. Taha v. Int’l Bhd.\nof Teamsters, Loc. 781, 947 F.3d 464, 472 (7th Cir. 2020).\n Despite this, LJM points to two cases it claims support its\ntheory that a general partner of a partnership is presump-\ntively injured when the partnership is injured. But neither\nhelps. The first is Adco Oil Co. v. Rovell, 357 F.3d 664 (7th Cir.\n2004). There, Adco was a partner in a partnership called\nHugoton Joint Venture (“HJV”). Id. at 665. When a dispute\nbroke out over a disclosed trade secret, Adco assigned its\nrights to HJV to sue on its behalf. Id. Before the jury reached a\nverdict, HJV’s lawyer negotiated a cap on the jury verdict that\nleft Adco uncompensated, and Adco in turn sued the lawyer\nfor malpractice. Id.\n\f22 Nos. 23-3109 & 23-3138\n\n We concluded that Adco had Article III standing because\nit “want[ed] money damages for a tort, and a favorable judi-\ncial order would redress the injury.” Id.\n In other words, Adco had alleged it experienced its own\ninjury under the theory that HJV’s lawyer had directly\nharmed its possibility of recovery by negotiating a cap on the\njury verdict amount. Id. Here, LJM does not cite its own injury\nas a general partner, but instead relies on the injury to the\npartnerships generally.\n The second case is Rawoof v. Texor Petroleum Co., 521 F.3d\n750 (7th Cir. 2008). There, the plaintiff claimed that the de-\nfendant improperly terminated a gas station’s franchise rights\nin violation of the Petroleum Marketing Practices Act. Id. at\n753. For standing, he alleged he was indirectly injured as the\nsole shareholder of the corporation that owned the gas sta-\ntion. Id. at 756. We agreed, concluding that he “satisfie[d] the\nminimum requirements of constitutional standing by virtue\nof an asserted indirect injury as [the corporation’s] sole share-\nholder.” Id.\n Although Rawoof hits closer to the mark, it does not save\nLJM’s complaint. We think it suﬃciently obvious that a sole\nshareholder in a corporation experiences a concrete injury\nwhen the corporation is injured. Cf. Korte v. Sebelius, 735 F.3d\n654, 667 (7th Cir. 2013) (“[B]ecause corporate ownership is\nclosely held, the mandate’s indirect eﬀect on the ﬁnancial in-\nterests of [Plaintiﬀs] as controlling shareholders is a concrete\ninjury suﬃcient to support Article III standing.”). But, in such\ncircumstances, the ﬁnancial relationship between a corpora-\ntion and its shareholders is clear. By contrast, the ﬁnancial re-\nlationships between LJM in its capacity as general partner and\nthe partnerships it managed are a mystery. Indeed, it is even\n\fNos. 23-3109 & 23-3138 23\n\npossible that the ﬁnancial terms of that relationship may have\ndiﬀered across the various partnerships. The complaint gives\nno inkling one way or the other.\n Lastly, LJM tries to establish injury in fact by claiming that\nDefendants’ actions caused it to experience loss of future busi-\nness and damage to its business reputation. LJM is correct that\na plaintiff’s “allegations of lost sales and damage to its busi-\nness reputation” can confer Article III standing. Lexmark Int’l,\nInc. v. Static Control Components, Inc., 572 U.S. 118, 125 (2014).\nBut there are two problems with this argument. First, LJM did\nnot raise it before the district court. See St. Paul Fire, 672 F.3d\nat 460 (arguments not raised before the district court are for-\nfeited). Second, even if LJM had preserved the issue for ap-\npeal, these purported business injuries appear nowhere in the\ncomplaint. 5 See Spokeo, 578 U.S. at 338 (“[A]t the pleading\nstage, the plaintiff must clearly … allege facts demonstrating\neach element [of standing].”) (internal quotation marks omit-\nted).\n 2. Substitution Under Rule 17(a)(3)\n Alternatively, LJM argues that the district court should\nhave permitted it to substitute the real party in interest under\nRule 17(a)(3). This rule provides that a court “may not dismiss\nan action for failure to prosecute in the name of the real party\nin interest until, after an objection, a reasonable time has been\n\n\n 5 The closest the complaint gets is in an attached appendix, where it\ndescribes “LJM’s” “very successful” history of proﬁting from its invest-\nment strategy. But this description of what had worked for LJM in the past\ndoes little to plausibly allege that it suﬀered a consequential business in-\njury on February 5 and 6. Nor does it overcome the signiﬁcant ambiguity\ncreated by the broad manner in which “LJM” is deﬁned in the complaint.\n\f24 Nos. 23-3109 & 23-3138\n\nallowed for the real party in interest to ratify, join, or be sub-\nstituted into the action.” Fed. R. Civ. P. 17(a)(3). The district\ncourt declined LJM’s request, concluding that Rule 17(a)(3)’s\nprocedure “is only available to a plaintiﬀ who has Article III\nstanding” and “does not answer the question of whether LJM\nitself can bring an action.” LJM Partners, 2023 WL 6311471, at\n9.\n To date, three circuits have considered whether a plaintiﬀ\nlacking Article III standing may avail itself of Rule 17(a)(3).\nLike the district court, the Sixth Circuit has concluded that\nsuch a plaintiﬀ cannot. See Zurich Ins. Co. v. Logitrans, Inc., 297\nF.3d 528, 531 (6th Cir. 2002) (stating that, without standing, a\nplaintiﬀ cannot “bring [an] action” or “make a motion to sub-\nstitute the real party in interest”). This view, sometimes called\nthe “nullity doctrine,” posits that when a plaintiﬀ lacks stand-\ning, there is no pending action into which the real party in\ninterest can be joined or substituted. The Fourth Circuit came\nto a similar conclusion, albeit in an unpublished decision. See\nHouse v. Mitra QSR KNE LLC, 796 F. App’x 783, 789–90 (4th\nCir. 2019) (“[I]t is not [Plaintiﬀ’s] lack of capacity or his real-\nparty-in-interest defect that forecloses a remedy under Rule\n17, but rather the fact that [he] had no legal existence—and,\nthus, no standing to bring suit—at the time of ﬁling.”).\n The Second Circuit, on the other hand, allows a plaintiﬀ\nwithout standing to employ Rule 17(a)(3). See Fund Liquidation\nHoldings LLC v. Bank of Am. Corp., 991 F.3d 370, 386 (2d Cir.\n2021) (“Only if the real party in interest either fails to materi-\nalize or lacks standing itself should the case be dismissed for\nwant of subject-matter jurisdiction.”). Naming the wrong\nparty in interest, the Second Circuit reasoned, “is akin to an\nerror in the complaint’s allegations of jurisdiction.” Id. at 388.\n\fNos. 23-3109 & 23-3138 25\n\nAnd, the court continued, “it is well-understood that a plain-\ntiﬀ may cure defective jurisdictional allegations, unlike defec-\ntive jurisdiction itself, through amended pleadings.” Id. at\n388–89.\n On balance, we tend to think that the Second Circuit has\nthe better approach. There is strong reason to believe that the\nnullity doctrine is not mandated by Article III’s Cases or Con-\ntroversy Clause. See 13A Wright & Miller’s Federal Practice &\nProcedure § 3531 n.61 (3d ed. 2025); Ethan C. Treacy, Note, The\nNullity Doctrine, 109 Va. L. Rev. 1331, 1364 (2023). To be sure,\n“the jurisdiction of the court depends upon the state of things\nat the time of the action brought.” Grupo Dataﬂux v. Atlas Glob.\nGrp., L.P., 541 U.S. 567, 570 (2004) (quoting Mollan v. Torrance,\n22 U.S. (9 Wheat.) 537, 539 (1824)); see also Lujan, 504 U.S. at\n570 n.5 (explaining that “standing is to be determined as of\nthe commencement of suit”). But it is also true that “[t]he state\nof things and the originally alleged state of things are not syn-\nonymous.” Rockwell Int’l Corp. v. United States, 549 U.S. 457,\n473 (2007) (citations omitted). As such, “demonstration that\nthe original allegations [are insuﬃcient] will defeat jurisdic-\ntion” as “will the withdrawal of those allegations, unless they\nare replaced by others that establish jurisdiction.” Id. (emphasis\nadded) (citations omitted). “Thus,” the Supreme Court con-\ntinued, “when a plaintiﬀ ﬁles a complaint in federal court and\nthen voluntarily amends the complaint, courts look to the\namended complaint to determine jurisdiction.” Id. at 473–74;\nsee Royal Canin U.S.A., Inc. v. Wullschleger, 604 U.S. 22, 35–36\n(2025) (“So changes in parties, or changes in claims, eﬀectively\nremake the suit. And that includes its jurisdictional basis: The\nreconﬁguration accomplished by an amendment may bring\nthe suit either newly within or newly outside a federal court’s\njurisdiction.”).\n\f26 Nos. 23-3109 & 23-3138\n\n If an amendment under Rule 15(a) can destroy or create\nfederal subject matter jurisdiction, it is diﬃcult to see why this\nreasoning should not extend to party substitutions under\nRule 17(a)(3). Here, LJM may have been able to show that the\nfacts on the ground demonstrate an injury in fact to a real\nparty in interest. That Rule 17(a)(3) was designed to avoid for-\nfeiture of meritorious claims further supports this approach.\nSee Treacy, supra at 1343 n.78 (“Rule 17 is ‘intended to prevent\nforfeiture when determination of the proper party to sue is\ndiﬃcult or when an understandable mistake has been\nmade[.]’”) (quoting Fed. R. Civ. P. 17 advisory committee’s\nnote to 1966 amendment). 6\n That said, we need not deﬁnitively decide this issue here,\nbecause even if LJM had been allowed to invoke Rule 17(a)(3),\nthe claims would have run headlong into CEA’s statute of\nlimitations.\n 3. Timeliness\n Even if LJM had been allowed to amend its complaint to\nadd real parties in interest, we agree with the district court\nthat the CEA’s two-year statute of limitations nevertheless\n\n\n 6 The pleading requirements contained in 735 Ill. Comp. Stat. 5/2-\n411(a) have little to do with whether LJM has itself experienced a concrete\ninjury in fact suﬃcient to confer Article III standing. Whether a plaintiﬀ\nhas experienced an injury and whether they can successfully recover for\nthat injury under relevant law are two distinct inquiries. See Lexmark, 572\nU.S. at 128 n.4 (“[T]he absence of a valid (as opposed to arguable) cause of\naction does not implicate subject-matter jurisdiction, i.e., the court’s statu-\ntory or constitutional power to adjudicate the case.”) (quoting Verizon Md.\nInc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 642–43 (2002) (emphasis in\noriginal)). To the extent the district court may have suggested otherwise,\nthat was error.\n\fNos. 23-3109 & 23-3138 27\n\nwould bar the CEA claims. A district court may dismiss on\nstatute-of-limitations grounds when it is “clear from the face\nof the amended complaint that it is hopelessly time-barred.”\nCancer Found., 559 F.3d at 675. And, as with Two Roads, LJM’s\ncomplaint provides all the information we need to assess its\ntimeliness.\n As noted above, the statute of limitations under the CEA\nis two years, and the clock begins “when the plaintiﬀ, in the\nexercise of due diligence, has actual or constructive\nknowledge of the conduct in question.” Dyer, 928 F.2d at 240\n(citations omitted); 7 U.S.C. § 25(c). Therefore, the statute of\nlimitations ran in February 2020. Although LJM timely ﬁled\nits original complaint in January 2019, its original complaint\nonly named the defendants as “John Does.” It was not until\nAugust 2022—almost two and a half years after the statute of\nlimitations ran—that LJM amended its complaint to name the\nactual defendants. LJM amended its complaint for a ﬁnal time\na month later in September 2022. When an initial complaint\nonly names Doe defendants, amended complaints that add\nthe names of defendants do not relate back to the date of the\nearlier complaint under Rule 15(c)(1)(C). See Herrera, 8 F.4th\nat 499. As a result, LJM’s Third Amended Complaint was ﬁled\noutside the statute-of-limitations period.\n Like Two Roads, LJM has forfeited the argument that its\nclaim accrued when it discovered Defendants’ scienter by fail-\ning to raise it below. See St. Paul Fire, 672 F.3d at 460. But, even\non the merits, LJM’s original complaints demonstrate that it\nhad reason to know of Defendants’ allegedly culpable mental\nstate when it filed them. For example, LJM claimed that it was\nvirtually impossible that the spike in implied volatility that\noccasioned its losses could have been caused by anything\n\f28 Nos. 23-3109 & 23-3138\n\nother than “manipulation by John Doe Defendants.” LJM can-\nnot now claim that it was not aware of Defendants’ scienter\nuntil years later.\n Because the claims are barred by the statute of limitations,\nto proceed, LJM must show that the district court abused its\ndiscretion when it denied LJM’s request for equitable tolling.\nGiven the record, however, LJM’s invocation of equitable es-\ntoppel fares no better than that of Two Roads.\n While acknowledging that LJM was more diligent than\nTwo Roads, the court reasonably concluded that LJM had not\ndiligently pursued its rights because even after the district\ncourt denied its ﬁrst motion for expedited discovery, LJM did\nnot ﬁx the overbreadth problems in its second motion. Alt-\nhough LJM is correct that the court expressed concern about\nthe ineﬃciency of granting LJM’s request while the MDL pro-\nceeded on a separate schedule, the record shows that the court\nalso raised concerns about the breadth of LJM’s request with\nsuﬃcient time for LJM to cure the issue. It was also reasonable\nfor the district court to conclude that LJM’s attorneys should\nhave anticipated the hurdles in identifying the relevant de-\nfendants and adjusted their pace accordingly. Given those\nfacts, we cannot say that the district court erroneously denied\nLJM equitable relief. Accordingly, even if LJM had been al-\nlowed to add additional parties under Rule 17(a)(3), the dis-\ntrict court’s refusal to apply equitable tolling was not an abuse\nof discretion.\n * *\n For the foregoing reasons, the judgment of the district\ncourt is AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11241701/", "author_raw": "LEE, Circuit Judge"}]}	JACKSON-AKIWUMI	LEE	PRYOR	1		{"JACKSON-AKIWUMI": ", Circuit", "LEE": ", Circuit", "PRYOR": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10775116/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,775,606	Illinois Tamale Company, Inc. v. LC Trademarks, Inc.	2026-01-16	25-1112	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before SCUDDER, ST. EVE, and JACKSON-AKIWUMI, Circuit Judges.", "parties": "", "opinions": [{"author": "ST. EVE, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNos. 24-3317, 25-1072, 25-1076 & 25-1112\nILLINOIS TAMALE COMPANY, INC., doing business as ILTACO,\n Plaintiﬀ-Appellee/Cross-Appellant,\n v.\n\nLC TRADEMARKS, INC. and LITTLE CAESAR ENTERPRISES, INC.,\n Defendants-Appellants/Cross-Appellees.\n ____________________\n\n Appeals from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 1:24-cv-05210 — Jeremy C. Daniel, Judge.\n ____________________\n\n ARGUED NOVEMBER 14, 2025 — DECIDED JANUARY 16, 2026\n ____________________\n\n Before SCUDDER, ST. EVE, and JACKSON-AKIWUMI, Circuit\nJudges.\n ST. EVE, Circuit Judge. Illinois Tamale Company, Inc. (“Il-\ntaco”), a Chicago-based food company, brought this trade-\nmark infringement action against LC Trademarks, Inc. and\nLittle Caesar Enterprises, Inc. (collectively “Little Caesars”),\nbased on Little Caesars’ advertising for its “Crazy Puﬀs” food\nproduct. Iltaco claimed Little Caesars’ Crazy Puﬀs product\nand advertising caused a substantial likelihood of confusion\n\f2 Nos. 24-3317 et al.\n\nwith Iltaco’s trademark-protected “Pizza Puﬀ” product. Iltaco\nalso moved for a preliminary injunction to enjoin Little Cae-\nsars from using “Crazy Puﬀ,” “Pizza Puﬀ,” and “Puﬀ” in its\nproduct names and advertising. The district court denied the\npreliminary injunction as to “Crazy Puﬀ” and “Puﬀ,” ﬁnding\nIltaco failed to show suﬃcient likelihood of success in its\ntrademark infringement action regarding those terms, but\ngranted the preliminary injunction as to “Pizza Puﬀ.” Because\nthe district court erred in concluding that Iltaco showed it was\nlikely to succeed on the merits of its trademark infringement\nclaim pertaining to “Pizza Puﬀ,” we reverse that portion of its\ndecision. We aﬃrm the district court’s decision as to “Crazy\nPuﬀ” and “Puﬀ.”\n I. Background\nA. Factual Background\n Iltaco is a Chicago-based food company founded in 1927.\nIn 1976, Iltaco began selling its pizza puﬀ product, which is\nsimilar to a calzone but made from a ﬂour tortilla wrapped\naround pizza toppings and can be fried or baked. Iltaco now\nsells its pizza puﬀs nationwide and has expanded its line of\nstuﬀed sandwich products to include a wide range of ingre-\ndients. Iltaco’s list of registered trademarks includes the\n“Pizza Puff,” “Gyro Puff,” “Ham Breakfast Puff,” “Sausage\nBreakfast Puff,” and “Spinach & Cheese Puff.” Specifically, it\nregistered its “Pizza Puff” trademark on May 26, 2009. It also\nhas a registered trademark for “Puff” as of May 3, 2022. Iltaco\nadvertises its stuffed sandwich products under the “Pizza\nPuff” and “Puff” trademarks.\n Little Caesars is a large chain of pizza restaurants founded\nin the United States with restaurant franchises worldwide. In\n\fNos. 24-3317 et al. 3\n\nMarch 2024, Little Caesars launched its new Crazy Puffs\nproduct in its restaurants throughout the country. Crazy\nPuffs are small, baked pizza dough cups filled with pizza in-\ngredients and topped with cheese. Crazy Puffs join Little Cae-\nsars’ numerous other “Crazy” marks, which the pizza chain\nhas used extensively in its marketing since the 1980s. Little\nCaesars owns numerous federal trademark registrations for\nits various “Crazy” products, and in May 2024 finalized its\nfederal registration for the “Crazy Puffs” mark. 1 Before final-\nizing Little Caesars’ registration, an examining attorney with\nthe U.S. Patent and Trademark Office (“USPTO”) searched\nthe database of registered and pending marks and found no\nlikelihood of confusion between “Crazy Puffs” and any prior\nregistered or pending marks of third parties, including Iltaco.\n Since launching Crazy Puffs, Little Caesars has marketed\nits puffs heavily using its “Little Caesars” trade name and the\nclassic Little Caesars trade dress—the Roman Character logo,\n“Hot-N-Ready” tagline, “Crazy” mark, and bright orange col-\noring. Crazy Puffs marketing materials include a line reading\n“4 Hand-Held Pizza Puffs,” which appears in small print di-\nrectly below “Crazy Puffs.” The phrase “Pizza Puffs” appears\nas part of “4 Hand-Held Pizza Puffs,” which always appears\nin conjunction with the “Crazy Puffs” mark.\n\n\n\n\n 1 Little Caesars disclaimed “Puﬀs” as part of its trademark in compli-\n\nance with a USPTO examining attorney’s advice, meaning Little Caesars\nclaims no rights in that word.\n\f4 Nos. 24-3317 et al.\n\n\n\n\n Little Caesars Crazy Puﬀs Advertisement\n Little Caesars sells Crazy Puffs exclusively through its res-\ntaurants, where customers can purchase them through tradi-\ntional carryout or delivery channels. Little Caesars does not\nsell Crazy Puffs in grocery stores, convenience stores, or\nthird-party restaurants.\nB. Procedural Background\n The present dispute began in April 2024 when Iltaco sent\nLittle Caesars a cease-and-desist letter claiming “Crazy Puﬀs”\nand “4 Hand-Held Pizza Puﬀs” infringed Iltaco’s trademark\nrights in its “Pizza Puﬀ” and “Puﬀ” marks. Little Caesars dis-\nputed the merits of Iltaco’s claims and continued to use both\n“Crazy Puﬀs” and “4 Hand-Held Pizza Puﬀs.”\n On June 21, 2024, Iltaco brought a four count complaint\nagainst Little Caesars, asserting claims under Section 32 of the\nLanham Act, 15 U.S.C. § 1114, for trademark infringement\n(Count I); Section 43(a) of the Lanham Act, § 1125, for false\ndesignation of origin (Count II); the Illinois Uniform Decep-\ntive Trade Practices Act, 815 ILCS 510/1 (Count III); and\n\fNos. 24-3317 et al. 5\n\ncommon law unfair competition (Count IV). On the same day,\nIltaco ﬁled its motion for a preliminary injunction, seeking to\nenjoin Little Caesars from using “Crazy Puﬀs,” “Pizza Puﬀ,”\nand “Puﬀ” in selling its product. After holding an evidentiary\nhearing, the district court granted Iltaco’s motion as to “Pizza\nPuﬀ” and denied it as to “Crazy Puﬀs” and “Puﬀ.” Little Cae-\nsars now appeals the district court’s decision enjoining its use\nof “Pizza Puﬀ,” 2 and Iltaco cross-appeals the district court’s\ndenial of its injunction motion regarding “Crazy Puﬀs” and\n“Puﬀ.”\n II. Legal Standard\n “We review the district court's denial of the motion for a\npreliminary injunction for an abuse of discretion, viewing its\nlegal conclusions de novo, and ﬁndings of fact for clear error.”\nMinocqua Brewing Co. v. Hess, 160 F.4th 849, 851 (7th Cir. 2025)\n(citing Richwine v. Matuszak, 148 F.4th 942, 952 (7th Cir. 2025)).\n A district court may grant a preliminary injunction where\nthe “movant shows that it is likely to succeed on the merits of\n\n\n 2 Little Caesars also purports to appeal the district court’s decision re-\n\ngarding its use of “Puﬀ,” arguing that the district court improperly found\n“Puﬀ” is a protectable mark rather than a generic term. The district court\ndid ﬁnd “Puﬀ” protectable, but also found no likelihood of confusion\nstemming from Little Caesars’ use of “Puﬀ” and accordingly denied the\nmotion for preliminary injunction as to “Puﬀ.” Because the district court\nultimately ruled in Little Caesars’ favor as to “Puﬀ,” Little Caesars cannot\nappeal this favorable decision. See Bd. Of Trs. Of Univ. of Ill. v. Organon\nTeknika Corp. LLC, 614 F.3d 372, 374 (7th Cir. 2010); United States v. Accra\nPac, Inc., 173 F.3d 630, 632 (7th Cir. 1999) (“[A] litigant may not appeal\nfrom unfavorable statements in a judicial opinion, if the judgment was fa-\nvorable.”).\n\f6 Nos. 24-3317 et al.\n\nits claims and that traditional legal remedies would be inade-\nquate, such that it would suﬀer irreparable harm without in-\njunctive relief.” Grubhub Inc. v. Relish Labs LLC, 80 F.4th 835,\n843 (7th Cir. 2023) (citing Life Spine, Inc. v. Aegis Spine, Inc., 8\nF.4th 531, 539 (7th Cir. 2021)). Trademark law affords a rebut-\ntable presumption of irreparable harm to movants who show\nthey are likely to succeed on the merits of their trademark in-\nfringement claims. Id.; § 1116(a). If the movant shows it is\nlikely to succeed on the merits, the court next “weighs the\nharm of denying an injunction to the movant against the harm\nof granting an injunction to the nonmovant.” Grubhub, 80\nF.4th at 844. The court also considers the public interest in\ngranting versus denying the preliminary injunction request.\nLife Spine, 8 F.4th at 539.\n “[A]n applicant for preliminary relief bears a signiﬁcant\nburden,” Ill. Republican Party v. Pritzker, 973 F.3d 760, 763 (7th\nCir. 2020), and must show more than “a mere possibility of\nsuccess” on the merits to prevail, Life Spine, Inc., 8 F.4th at 540.\nIt is not enough, as Iltaco asserts, to show only a “better than\nnegligible” chance of succeeding on the merits. 3 Nken v.\nHolder, 556 U.S. 418, 434 (2009). Of course, the movant “need\nnot show that it deﬁnitely will win the case,” but it “must\n\n\n 3 It is diﬃcult to determine which standard the district court applied.\n\nIf the court applied the “better than negligible standard,” it abused its dis-\ncretion. See Lawson Prods., Inc. v. Avnet, Inc., 782 F.2d 1429, 1437 (7th Cir.\n1986) (“A district judge may abuse his discretion . . . [by applying] an in-\ncorrect preliminary injunction standard.”); see also Arwa Chiropractic, P.C.\nv. Med-Care Diabetic & Med. Supplies, Inc., 961 F.3d 942, 949 (7th Cir. 2020)\n(“A court abuses its discretion when it fails to consider a motion under the\nproper legal standard.”). Even if it applied the correct standard, however,\nthe district court committed other legal errors that require reversal in part.\n\fNos. 24-3317 et al. 7\n\ndemonstrate at a minimum how it proposes to prove the key\nelements of its case.” Grubhub, 80 F.4th at 844.\n III. Discussion\n Trademark law serves the dual purposes of protecting cus-\ntomers’ desires to make informed purchasing decisions based\non familiar, trustworthy marks, and protecting trademark\nowners against misappropriation of marks in which they\nhave invested signiﬁcant time, energy, and resources. See id.\n The Trademark Act of 1946, known as the Lanham Act,\ncodiﬁed at 15 U.S.C. §§ 1051–1141n, governs our analysis.\n“The Lanham Act allows those who employ trade or service\nmarks to register them for exclusive use in commerce.” Sport-\nFuel, Inc. v. PepsiCo, Inc., 932 F.3d 589, 595 (7th Cir. 2019) (cit-\ning KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543\nU.S. 111, 117 (2004)). Under the Lanham Act, a “holder of a\nregistered mark … has a civil action against anyone employ-\ning an imitation of it in commerce when ‘such use is likely to\ncause confusion, or to cause mistake, or to deceive.’” KP Per-\nmanent Make-Up, 543 U.S. at 117 (quoting § 1114(1)(a)). To pre-\nvail on such a claim, the plaintiﬀ must establish that “(1) its\nmark is protectable and (2) the defendant’s use of the mark is\nlikely to cause confusion among consumers.” CAE, Inc. v.\nClean Air Eng’g, Inc., 267 F.3d 660, 673–74 (7th Cir. 2001).\n The Lanham Act also provides aﬃrmative defenses to\ncounter a plaintiﬀ’s claims, including the “fair use” defense.\nSee § 1115(b). The fair use defense “allows individuals to use\notherwise trademarked language in a descriptive sense.”\nSportFuel, 932 F.3d at 595 (citing Packman v. Chi. Trib. Co., 267\nF.3d 628, 639 (7th Cir. 2001)). To raise the fair use defense suc-\ncessfully, a defendant must show that (1) it did not use the\n\f8 Nos. 24-3317 et al.\n\nmark at issue as a trademark, (2) the use is descriptive of its\ngoods, and (3) it used the mark fairly and in good faith.\nSorensen v. WD-40 Co., 792 F.3d 712, 722 (7th Cir. 2015) (citing\n§ 1115(b)(4)); Packman, 267 F.3d at 639.\nA. “Pizza Puﬀ”\n The district court found Iltaco was likely to succeed on the\nmerits of its trademark infringement action for its “Pizza\nPuﬀ” mark. In doing so, the court found Iltaco was likely to\nsucceed in showing “Pizza Puﬀ” was a protectable mark, that\nno fair use defense applied, and that there was substantial\nlikelihood of confusion between both parties’ use of “Pizza\nPuﬀ.” We address the district court’s ﬁndings regarding pro-\ntectability and fair use, 4 and ultimately reverse the prelimi-\nnary injunction on Little Caesars’ use of “Pizza Puﬀ” because\nIltaco failed to meet its burden of establishing a suﬃcient like-\nlihood of success on the merits of its claim.\n 1. Protectability Analysis\n To succeed on a trademark infringement action, the mark\nor marks at issue must be protectable under the Lanham Act\nin the ﬁrst place. Whether a mark is entitled to protection de-\npends upon where it falls on a spectrum of increasing distinc-\ntiveness from (1) generic, (2) descriptive, (3) suggestive,\n(4) arbitrary, or (5) fanciful. Platinum Home Mortg. Corp. v.\nPlatinum Fin. Grp., 149 F.3d 722, 727 (7th Cir. 1998); Packman,\n267 F.3d at 638. We review the district court’s factual\n\n\n\n 4 We are skeptical whether the district court made suﬃcient factual\n\nﬁndings to support its likelihood of confusion analysis. In any event, we\nneed not address likelihood of confusion because we are reversing on\nother grounds.\n\fNos. 24-3317 et al. 9\n\ndetermination of where a mark falls along this spectrum for\nclear error. Mil-Mar Shoe Co. v. Shonac Corp., 75 F.3d 1153,\n1156–57 (7th Cir. 1996) (“[P]lacement of a mark in a particular\ncategory is subject to review for clear error, and thus may be\nset aside only if, after considering all the evidence, we are ‘left\nwith the deﬁnite and ﬁrm conviction that a mistake has been\ncommitted.’” (quoting F. Corp. of N. Am. v. F., Ltd., 903 F.2d\n434, 438 (7th Cir.1990))).\n A trademark infringement action must fail if the mark is\ngeneric and will usually fail if the mark is descriptive. Generic\nterms, which are the terms “commonly used as the name of a\nkind of goods,” Liquid Controls Corp. v. Liquid Control Corp.,\n802 F.2d 934, 936 (7th Cir. 1986), may not be trademark pro-\ntected “under any circumstances,” Miller Brewing Co. v. G.\nHeileman Co., 561 F.2d 75, 79 (7th Cir. 1977). Descriptive terms,\nwhich describe the ingredients, characteristics, or qualities of\nan article, are protected only if the holder can establish that\nthe mark has acquired a secondary meaning. U.S. Pat. &\nTrademark Oﬀ. v. Booking.com B. V., 591 U.S. 549, 553 (2020).\nSecondary meaning attaches to marks that have “achieve[d]\nsigniﬁcance ‘in the minds of the public’ as identifying the ap-\nplicant’s goods or services.” Id. (quoting Wal-Mart Stores, Inc.\nv. Samara Bros., Inc., 529 U.S. 205, 211 (2000)). “Holiday Inn,”\nfor example, describes a vacation accommodation, but most\npeople associate the term with one speciﬁc brand. See also Un-\ncommon, LLC v. Spigen, Inc., 926 F.3d 409, 420 (7th Cir. 2019)\n(“5-Hour Energy . . . describes the caﬀeinated shot, but is\nreadily associated by most customers with one maker.” (in-\nternal quotations omitted)).\n\f10 Nos. 24-3317 et al.\n\n The Lanham Act provides a rebuttable presumption of va-\nlidity 5 for successfully registered trademarks, but the pre-\nsumption “evaporates as soon as evidence of invalidity is pre-\nsented.” Ga.-Pac. Consumer Prods. LP v. Kimberly-Clark Corp.,\n647 F.3d 723, 727 (7th Cir. 2011) (quoting Door Sys., Inc. v. Pro–\nLine Door Sys., Inc., 83 F.3d 169, 172 (7th Cir. 1996)). As rele-\nvant here, an incontestable registered mark—one that has been\nin continuous use for ﬁve years after registration—attains an\neven higher status of legal protection. The defendant may\novercome this strong presumption of validity only by show-\ning the incontestable trademark has become generic. § 1065;\nEco Mfg. LLC. v. Honeywell Int’l, Inc., 357 F.3d 649, 651 (7th Cir.\n2003).\n The district court found Iltaco’s “Pizza Puﬀ” mark was\nprotectable because Little Caesars failed to overcome the pre-\nsumption of protection aﬀorded to incontestable marks. Be-\ncause the court committed several errors in its analysis, and\nbecause Iltaco did not otherwise show it was likely to succeed\nin proving its mark is protectable, we reverse this portion of\nthe court’s decision.\n a. Primary Signiﬁcance Test for Genericness\n Whether a registered mark has become a generic term\nturns on the mark’s “primary signiﬁcance” to the relevant\npublic. § 1064(3) (“The primary signiﬁcance of the registered\nmark to the relevant public ... shall be the test for determining\nwhether the registered mark has become the generic name of\n\n\n 5 “The validity of a mark pertains to whether” a given term “is entitled\n\nto protection under trademark law.” Platinum Home, 149 F.3d at 726. If a\nterm that is the subject of a registered trademark is shown to be unprotect-\nable, the mark is invalid. Id.\n\fNos. 24-3317 et al. 11\n\ngoods or services.”); see also Booking.com, 591 U.S. at 556 (ap-\nplying “primary signiﬁcance” test to determine whether mark\nwas generic). The district court neglected to apply the primary\nsigniﬁcance test here. Instead, it found Iltaco was likely to suc-\nceed in showing its mark was protectable because other\nbrands selling similar products are “able to compete eﬀec-\ntively without using the plaintiﬀ’s ‘PIZZA PUFFS’ mark.” The\ndistrict court drew this standard from Ty Inc. v. Softbelly’s Inc.,\nwhere we explained, in dicta, that ﬁnding a trademark has be-\ncome generic is a “fateful step” that we do not ordinarily take\n“until the trademark has gone so far toward becoming the ex-\nclusive descriptor of the product that sellers of competing\nbrands cannot compete eﬀectively without using the name to\ndesignate the product they are selling.” 353 F.3d 528, 531 (7th\nCir. 2003). Because Iltaco provided examples of other brands\nproducing similar products that competed eﬀectively without\nusing “Pizza Puﬀ” (e.g., Hot Pockets, Totino’s Pizza Rolls,\nJimmy Dean Toaster Pop-Ups), the district court found the\nmark had not become the “exclusive descriptor” of the prod-\nuct and therefore was not generic under Ty.\n Our language in Ty may explain one reason why generic\nmarks are not protectable—i.e., because protecting generic\nmarks would stymie competition from sellers of similar prod-\nucts unable to suﬃciently describe their product. But it is not\nthe correct test for genericness. The plain language of the Lan-\nham Act, Supreme Court precedent, and even a previous par-\nagraph in Ty explain that we assess the mark’s primary sig-\nniﬁcance to determine whether it has become generic and\nthus unprotectable under the Lanham Act. See § 1064(3); Book-\ning.com, 591 U.S. at 556; Ty, 353 F.3d at 530–31 (“[T]he legal\ntest of genericness is ‘primary signiﬁcance.’”). A term need\nnot be the exclusive descriptor of a product to become generic.\n\f12 Nos. 24-3317 et al.\n\nRather, a trademark plaintiﬀ “may not prevent [the] defend-\nant from using [a mark] simply because there are other titles\ndefendant could use.” Tech. Publ’g Co. v. Lebhar-Friedman, Inc.,\n729 F.2d 1136, 1141 (7th Cir 1984); 6 see also 2 J. Thomas McCar-\nthy, McCarthy on Trademarks and Unfair Competition § 12:9\n(2006) (“Any product may have many generic designations.\nAny one of those is incapable of trademark signiﬁcance.”). A\ngeneric term is not made less generic by the availability of\nother terms. Tech. Publ’g Co., 729 F.2d at 1141. If we held oth-\nerwise, we would “extend protection to a generic term, a re-\nsult clearly at odds with trademark law.” Id. Because the dis-\ntrict court failed to apply the correct legal test––the primary\nsigniﬁcance test––to determine genericness, the district court\nerred.\n b. Primary Signiﬁcance of “Pizza Puﬀ”\n Viewed under the correct standard, the issue is whether\nthe primary signiﬁcance of “Pizza Puﬀ” to consumers is as a\ngeneric term describing a class of products or a distinctive\nterm indicating association with a particular brand.\n\n\n\n 6 Iltaco attempts to distinguish Technical Publishing Co. because it dealt\n\nwith a magazine title, and “[m]agazines diﬀer from other goods[] in that\ntheir title is a primary means of conveying their content,” so “[c]ourts con-\nfronted with similar trade journal disputes have held consistently that ti-\ntles consisting of the trade name and an indication of the type of publica-\ntion are generic.” 729 F.2d at 1140. But the distinction we drew between\nmagazines and other goods related only to our classiﬁcation of magazine\ntitles as generic or descriptive terms; it did not extend to the test we apply\nto determine whether a mark has become generic. Id. Elsewhere in the\nopinion, we conﬁrmed “[t]he test in determining whether a magazine title\nis generic is no diﬀerent than that applied in determining whether any\nother mark is generic.” Id.\n\fNos. 24-3317 et al. 13\n\nBooking.com, 591 U.S. at 560–61. To determine the primary sig-\nniﬁcance of a term, the court may consider “consumer sur-\nveys, … dictionaries, usage by consumers and competitors,\nand any other source of evidence bearing on how consumers\nperceive a term’s meaning.” Id. at 561 n.6.\n Little Caesars presented extensive evidence to show that\nthe primary signiﬁcance of Iltaco’s incontestable 7 “Pizza Puﬀ”\nmark to consumers is as a generic term. First, Little Caesars\npresented the results of a Teﬂon survey, 8 showing 83.3% of\nconsumers of dough-based, pizza-ingredient-ﬁlled foods per-\nceive “pizza puﬀ” as a common (i.e., generic) term, while only\n12.7% perceive the term as a brand name. The district court\ndismissed this strong evidence of genericness by ﬁnding it\nwas “not conclusive” because in Ty we said, in dicta, that as\nfew as ten percent of consumers associating a mark with an\nowner’s brand could result in consumer confusion. 353 F.3d\nat 531. We cannot accept that ten percent of consumers is a\nrelevant percentage for the genericness test, which focuses on\nthe “primary signiﬁcance” of a product to consumers. “[I]f a\nsurvey showed that 75 percent of the public regard the word\nas generic, then that is its majority usage and its ‘principal sig-\nniﬁcance.’” McCarthy § 12:6. Primary signiﬁcance requires far\n\n\n 7 Iltaco registered its “Pizza Puﬀ” mark in 2009, well over ﬁve years\n\nago, and has used it consistently since, so it has now become incontestable.\nThe parties agree this mark is incontestable.\n 8 Teﬂon surveys are the “most judicially accepted format for testing for\n\ngenericness.” McCarthy § 12:16. In a Teﬂon survey, the survey “begins\nwith a brief lesson explaining the diﬀerence between brand names and\ncommon names. It then asks respondents to classify a series of words, in-\ncluding the trademark at issue, as either brand names or common names.”\nElliott v. Google, Inc., 860 F.3d 1151, 1160 n.7 (9th Cir. 2017).\n\f14 Nos. 24-3317 et al.\n\nmore than ten percent. The court thus erred when it found\nLittle Caesars’ evidence inconclusive based on this inapplica-\nble statement of the law. Viewed properly, survey data show-\ning over 80 percent of relevant consumers perceive “pizza\npuﬀ” as a generic term presents strong evidence of its gener-\nicness. See McCarthy § 12:6.\n Little Caesars also presented several deﬁnitions of “pizza\npuﬀ” drawn from crowd-sourced dictionaries to show the\nterm has acquired a generic meaning. Deﬁnitions.net de-\nscribes a pizza puﬀ as “A dough pouch ﬁlled with the ingre-\ndients of a pizza, such as cheese, pizza sauce, sausage, and\npepperoni, and usually deep fried.” Kiddle Encyclopedia (an\nonline encyclopedia for kids) describes a pizza puﬀ as “A\ndeep-fried dough pocket ﬁlled with cheese, tomato sauce, and\nother pizza ingredients such as sausage or pepperoni.”\nThough the district court did not address these proﬀered\npizza puﬀ deﬁnitions, Iltaco argues on appeal that the crowd-\nsourced dictionary deﬁnitions are unreliable evidence be-\ncause anyone can edit an online crowd-sourced dictionary.\nBut Little Caesars introduced these deﬁnitions to show how\nthe public uses and perceives the term “pizza puﬀ.” Our ge-\nnericness analysis inquires into the primary signiﬁcance of a\nterm to the public, not its unequivocal technical deﬁnition. 9\n\n 9 A number of federal courts have found crowd-sourced deﬁnitions\n\nunreliable and even inadmissible as evidence of a term’s technical deﬁni-\ntion or as the basis for an expert’s testimony. See, e.g., Badasa v. Mukasey,\n540 F.3d 909, 909 (8th Cir. 2008) (noting Wikipedia deﬁnition of an Ethio-\npian travel document was unreliable evidence of party’s immigration sta-\ntus); Advanced Mech. Servs., Inc. v. Auto-Owners Ins. Co., No. 14-CV-388,\n2017 WL 3381366, at 4 (W.D. Ky. Aug. 4, 2017) (ﬁnding expert witness’s\nopinion inadmissible because expert relied on Wikipedia deﬁnition);\n\fNos. 24-3317 et al. 15\n\nCrowd-sourced dictionary deﬁnitions inform that question,\nso they are relevant to our analysis and weigh in favor of ge-\nnericness. Still, the fact that anyone can edit a crowd-sourced\ndictionary deﬁnition bears on the weight of Little Caesars’\ndictionary evidence.\n The district court acknowledged, though did not analyze,\nevidence Little Caesars introduced of third parties using\n“pizza puﬀ” in their USPTO applications and registrations to\nindicate the term has widespread generic use in the industry.\nWe have found third-party registrations probative of a term’s\nwidespread descriptive use where over ﬁfty third-party reg-\nistrations used the same term to describe a similar quality. See\nSpraying Sys. Co. v. Delevan, Inc., 975 F.2d 387, 393 (7th Cir.\n1992) (ﬁnding the suﬃx “JET” descriptive of a hose product\nbased in part on ﬁfty other registrations using “JET” to de-\nscribe similar high-velocity water stream products). Here, the\nﬁve USPTO registrations cited by Little Caesars may not be\ndispositive on their own, but together with consumer survey\n\n\nFleishman v. Cont'l Cas. Co., No. 09 C 414, 2011 WL 5866264, at 4 (N.D. Ill.\nNov. 22, 2011) (ﬁnding inadmissible Wikipedia deﬁnition of “aneurysm”\nas evidence of plaintiﬀ’s injury). Similarly, the Fourth Circuit found a\nSixth Amendment violation in a criminal trial where the jury inde-\npendently obtained and considered a Wikipedia deﬁnition of an element\nof the crime at issue. United States v. Lawson, 677 F.3d 629, 641 (4th Cir.\n2012). But where a crowdsourced deﬁnition is oﬀered to show the signiﬁ-\ncance of that term to members of the public, at least one federal court has\nrelied upon the deﬁnition. See Hawkins v. City of Phila., 571 F. Supp. 3d 455,\n458 (E.D. Pa. 2021) (relying on crowd-sourced dictionary’s deﬁnition of a\nslang term). Thus, while crowd-sourced dictionary deﬁnitions may unre-\nliably evince a term’s correct or technical deﬁnition, they more reliably\nrepresent what a term means to members of the public, which is what the\ngenericness analysis is concerned about.\n\f16 Nos. 24-3317 et al.\n\nand dictionary evidence the USPTO registrations indicate\nother producers of similar products primarily think of “pizza\npuﬀ” as a name for a class of foods rather than a particular\nbrand within that class.\n Iltaco’s arguments to the contrary—that the USPTO de-\nscriptions are unreliable evidence and that they do not apply\nbecause some of the marks using “pizza puﬀ” as a descriptor\nare inactive—do not counter this evidence. Iltaco relies on a\ndistrict court decision stating that USPTO registrations are not\nsuﬃciently reliable for the court to take judicial notice of\nthem, not that they are unreliable evidence altogether. Face-\nbook, Inc. v. Teachbook.com LLC, 819 F. Supp. 2d 764, 772 (N.D.\nIll. 2011). And USPTO registrations using “pizza puﬀ” are\nprobative of how other companies in the food industry use\nthat term even if they are inactive. Spraying Sys., 975 F.2d at\n393 (“[T]hose [registered trademarks] that are not [in current\nuse] can still be probative on the issue of descriptiveness.”).\n Not all of Little Caesars’ evidence of genericness is as com-\npelling. Online recipes for pizza puﬀs have low evidentiary\nvalue because the internet is replete with copycat recipes\nteaching home cooks how to replicate popular, often trade-\nmarked, dishes at home (e.g., recipes for homemade Hot-\nPockets, Pop-Tarts, etc.). 10 Little Caesars also introduced evi-\ndence of menus listing “pizza puﬀ” alongside generic food\n\n\n\n 10 See Illinois Tamale Co. v. El-Greg, Inc., No. 16 C 5387, 2018 WL 1534971\n\nat 5 (N.D. Ill. Mar. 29, 2018) (“There are also thousands of recipes for a\nhomemade version of Hot Pockets, another speciﬁc brand of stuﬀed sand-\nwich. The existence of such recipes does not necessarily suggest that ‘Hot\nPockets’ is a generic term [but rather] that Hot Pockets are a well-known\nbrand that home cooks want to replicate.” (citation modiﬁed)).\n\fNos. 24-3317 et al. 17\n\nitems, indicating the term is used widely in the industry as a\ngeneric term. See Miller Brewing, 561 F.2d at 80 (ﬁnding “light”\ngeneric in part because it is “widely used in the beer indus-\ntry”). These menus provide some support for genericness, but\nunlike the evidence in Miller Brewing showing others in the\nbeer industry used “light” to describe their own distinct prod-\nucts, it is unclear whether the menus Little Caesars cited refer\nto the restaurants’ own products or to Iltaco’s, given Iltaco\nsells its food products to third-party restaurants. Little Cae-\nsars nevertheless contends the menus support genericness be-\ncause placing “pizza puﬀ” alongside generic terms like\n“fries” and “hot dog” must mean “pizza puﬀ” is generic. But\nagain, because Little Caesars did not show 11 the menus refer-\nenced anything but Iltaco’s product, they do not necessarily\nshow others in the industry do not associate “pizza puﬀ” with\nIltaco.\n Even so, the district court ultimately erred by ﬁnding Il-\ntaco was likely to succeed in showing “Pizza Puﬀ” is protect-\nable because the court failed to apply the primary signiﬁcance\ntest and the record did not support its ﬁnal decision. Little\nCaesars’ consumer survey data, dictionary deﬁnitions, and\nUSPTO registrations showing generic usage were suﬃcient to\novercome the presumption of trademark validity, and Iltaco\ndid not show how it could overcome this evidence at trial to\nprove “Pizza Puﬀ” is a protectable mark. Iltaco thus failed to\ncarry its burden of showing a likelihood of success on the\n\n\n 11 Little Caesars must make an aﬃrmative showing because it bears\n\nthe burden of overcoming the presumption of protectability inherent to\nincontestable marks. See Liquid Controls, 802 F.2d at 936 (“The burden is on\nthe defendant to overcome the presumption.”).\n\f18 Nos. 24-3317 et al.\n\nmerits, so the district court should not have granted its motion\nfor preliminary injunction.\n 2. Fair Use Analysis\n Even if “Pizza Puﬀ” is suﬃciently distinctive to merit pro-\ntection under the Lanham Act, Iltaco cannot prevail without\nshowing how it will successfully counter Little Caesars’ fair\nuse defense. A defendant in a trademark infringement case\nmay invoke the “fair use” defense by demonstrating that (1) it\nused the phrase at issue in a non-trademark capacity, (2) the\nphrase is descriptive of its goods and services, and (3) it used\nthe phrase “fairly and in good faith” only to describe its\ngoods. § 1115(b)(4); see also Sands, Taylor & Wood Co. v. Quaker\nOats Co., 978 F.2d 947, 951 (7th Cir. 1992); Packman, 267 F.3d at\n639.\n Little Caesars asserted a fair use defense in response to Il-\ntaco’s preliminary injunction motion, but the district court re-\njected the defense based on the second prong, 12 explaining:\n The defendants have not shown that “PIZZA PUFFS”\n is descriptive of their goods. The defendants[’] product\n looks like a mini-pizza or a pizza muﬃn or a pizza cup-\n cake or a pizza bite. It is not apparent what part of the\n defendants’ product is a puﬀ, which means that the\n mark is not descriptive of the defendants’ goods.\n The district court erred in reaching this conclusion be-\ncause it misapplied the relevant legal standard to determine\nwhether “Pizza Puﬀ” is descriptive of Little Caesars’ product.\nThe district court mistakenly required Little Caesars’ product\n\n\n 12 Because the district court did not address the ﬁrst or third prongs\n\nof fair use, we do not address them here.\n\fNos. 24-3317 et al. 19\n\nto be a pizza puﬀ for the term to apply descriptively. In fact,\nthe term need only refer to a characteristic of the product.\nF. Corp., 903 F.2d at 444. We identiﬁed a similar problem in\nQuaker Oats, where the district court erred by requiring a de-\nscriptive term to “bring to mind the product in question.” 978\nF.2d at 952. We explained “it is not necessary that a descrip-\ntive term depict the [product] itself, but only that the term re-\nfer to a characteristic of the [product].” Id. (quoting F. Corp., 903\nF.2d at 444). The district court should have considered\nwhether “Pizza Puﬀ” fairly described a characteristic or qual-\nity of Little Caesars’ Crazy Puﬀs product, not whether Crazy\nPuﬀs are pizza puﬀs.\n Under the correct test, the district court’s determination\nthat “Pizza Puﬀ” is not descriptive falls short. A Little Caesars\nrepresentative testiﬁed that “Crazy Puﬀs” are “light and airy\nmuﬃns” that are “puﬀy.” No one disputes that Crazy Puﬀs\nare ﬁlled with pizza ingredients like cheese, tomato sauce,\nmeat, and vegetables. This evidence fairly shows that “Pizza\nPuﬀ” describes a Crazy Puﬀ, which is a puﬀy and airy muﬃn\ncontaining pizza ingredients. And “Pizza Puﬀ” appears as\npart of the phrase “4 Hand-Held Pizza Puﬀs,” which is clearly\ndescribing the quantity, size, and type of food customers can\nexpect when they purchase a Crazy Puﬀ. The district court\ndid not consider this evidence or explain how Iltaco could\ncounter it at trial. Because the district court applied the wrong\nstandard, the district court abused its discretion in granting\nthe preliminary injunction for “Pizza Puﬀ.” See Lawson Prods.,\n782 F.2d at 1437 (“[A] factual or legal error may alone be suf-\nﬁcient to establish that the court ‘abused its discretion’ in\nmaking its ﬁnal determination.”).\n\f20 Nos. 24-3317 et al.\n\nB. “Crazy Puﬀs” and “Puﬀ”\n The district court found Iltaco failed to meet its burden\nwith respect to Little Caesars’ use of its “Crazy Puﬀs” mark\nbecause Iltaco did not show there was a likelihood of confu-\nsion between Little Caesars’ “Crazy Puﬀs” mark and Iltaco’s\n“Pizza Puﬀ” or “Puﬀ” marks. The court did not clearly err in\neither determination, so we aﬃrm its decision regarding both\nmarks.\n The district court correctly rejected Iltaco’s suggestion that\n“Crazy Puﬀs” and “Pizza Puﬀ” were confusingly similar be-\ncause both contain the word “Puﬀ.” When evaluating the like-\nlihood of confusion between marks, “we must keep in mind\nthat ‘[t]he commercial impression of a trade-mark is derived\nfrom it as a whole, not from its elements separated and con-\nsidered in detail.’” Grubhub, 80 F.4th at 848 (quoting Est. of\nP.D. Beckwith, Inc. v. Comm'r of Pats., 252 U.S. 538, 545–46\n(1920)). Thus, we cannot look at “Puﬀ” (from “Crazy Puﬀs”)\nin isolation and ﬁnd it confusingly similar to “Puﬀ” in Iltaco’s\n“Pizza Puﬀ” name. We must consider the “Crazy Puﬀs” mark\nin its entirety, as the district court rightly explained.\n Viewing the “Crazy Puﬀs” mark as a whole, the district\ncourt did not err in ﬁnding no likelihood of confusion with\n“Pizza Puﬀ.” The court found the two terms are signiﬁcantly\ndiﬀerent because Iltaco’s mark denotes the ingredients found\nin the product while Little Caesars’ mark uses “Crazy” to tie\nits product to its own family of Crazy marks. Iltaco’s mark\ndescribes what a consumer can expect to ﬁnd inside the puﬀ,\nwhile Little Caesars’ mark designates its brand. Though the\ncourt found other likelihood-of-confusion factors may favor\nIltaco, it held “the diﬀerence in the marks’ overall impression\n\fNos. 24-3317 et al. 21\n\nprecludes ﬁnding a likelihood of success by the plaintiﬀ on\nlikelihood of confusion.”\n A district court has broad “ﬂexibility to determine what\n[likelihood-of-confusion] factors are most critical in a case.”\nTy, Inc. v. Jones Grp., Inc., 237 F.3d 891, 901 (7th Cir. 2001). And\nbecause the similarity of the marks is one of the most im-\nportant considerations, a district court does not abuse its dis-\ncretion by ﬁnding no likelihood of confusion based on dissim-\nilar marks even when other factors weigh in favor of confu-\nsion. Eli Lilly & Co. v. Nat. Answers, Inc., 233 F.3d 456, 462 (7th\nCir. 2000). Here, the district court made a reasoned determi-\nnation that the two marks were not similar and did not abuse\nits discretion in weighing the similarity factor heavily to ﬁnd\nno likelihood of success in showing likelihood of confusion.\n * \n Because Iltaco did not show it is likely to succeed in prov-\ning that “Pizza Puﬀ” is protectable or rebutting Little Caesars’\nfair use defense at trial, Iltaco has not established a likelihood\nof success on the merits. Accordingly, we do not proceed to\nthe harms-balancing or public interest steps of the prelimi-\nnary injunction analysis. See Grubhub, 80 F.4th at 844 (“[Only]\n[u]pon a showing of [likelihood of success on the merits], the\ncourt weighs the harm of denying an injunction.”).\n The district court abused its discretion by granting the pre-\nliminary injunction as to “Pizza Puﬀ,” but did not abuse its\ndiscretion in denying the injunction regarding “Crazy Puﬀs”\nor “Puﬀ.”\n The judgment of the district court is\n AFFIRMED IN PART AND REVERSED IN PART.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11242193/", "author_raw": "ST. EVE, Circuit Judge"}, {"author": "ST. EVE, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNos. 24-3317, 25-1072, 25-1076 & 25-1112\nILLINOIS TAMALE COMPANY, INC., doing business as ILTACO,\n Plaintiﬀ-Appellee/Cross-Appellant,\n v.\n\nLC TRADEMARKS, INC. and LITTLE CAESAR ENTERPRISES, INC.,\n Defendants-Appellants/Cross-Appellees.\n ____________________\n\n Appeals from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 1:24-cv-05210 — Jeremy C. Daniel, Judge.\n ____________________\n\n ARGUED NOVEMBER 14, 2025 — DECIDED JANUARY 16, 2026\n ____________________\n\n Before SCUDDER, ST. EVE, and JACKSON-AKIWUMI, Circuit\nJudges.\n ST. EVE, Circuit Judge. Illinois Tamale Company, Inc. (“Il-\ntaco”), a Chicago-based food company, brought this trade-\nmark infringement action against LC Trademarks, Inc. and\nLittle Caesar Enterprises, Inc. (collectively “Little Caesars”),\nbased on Little Caesars’ advertising for its “Crazy Puﬀs” food\nproduct. Iltaco claimed Little Caesars’ Crazy Puﬀs product\nand advertising caused a substantial likelihood of confusion\n\f2 Nos. 24-3317 et al.\n\nwith Iltaco’s trademark-protected “Pizza Puﬀ” product. Iltaco\nalso moved for a preliminary injunction to enjoin Little Cae-\nsars from using “Crazy Puﬀ,” “Pizza Puﬀ,” and “Puﬀ” in its\nproduct names and advertising. The district court denied the\npreliminary injunction as to “Crazy Puﬀ” and “Puﬀ,” ﬁnding\nIltaco failed to show suﬃcient likelihood of success in its\ntrademark infringement action regarding those terms, but\ngranted the preliminary injunction as to “Pizza Puﬀ.” Because\nthe district court erred in concluding that Iltaco showed it was\nlikely to succeed on the merits of its trademark infringement\nclaim pertaining to “Pizza Puﬀ,” we reverse that portion of its\ndecision. We aﬃrm the district court’s decision as to “Crazy\nPuﬀ” and “Puﬀ.”\n I. Background\nA. Factual Background\n Iltaco is a Chicago-based food company founded in 1927.\nIn 1976, Iltaco began selling its pizza puﬀ product, which is\nsimilar to a calzone but made from a ﬂour tortilla wrapped\naround pizza toppings and can be fried or baked. Iltaco now\nsells its pizza puﬀs nationwide and has expanded its line of\nstuﬀed sandwich products to include a wide range of ingre-\ndients. Iltaco’s list of registered trademarks includes the\n“Pizza Puff,” “Gyro Puff,” “Ham Breakfast Puff,” “Sausage\nBreakfast Puff,” and “Spinach & Cheese Puff.” Specifically, it\nregistered its “Pizza Puff” trademark on May 26, 2009. It also\nhas a registered trademark for “Puff” as of May 3, 2022. Iltaco\nadvertises its stuffed sandwich products under the “Pizza\nPuff” and “Puff” trademarks.\n Little Caesars is a large chain of pizza restaurants founded\nin the United States with restaurant franchises worldwide. In\n\fNos. 24-3317 et al. 3\n\nMarch 2024, Little Caesars launched its new Crazy Puffs\nproduct in its restaurants throughout the country. Crazy\nPuffs are small, baked pizza dough cups filled with pizza in-\ngredients and topped with cheese. Crazy Puffs join Little Cae-\nsars’ numerous other “Crazy” marks, which the pizza chain\nhas used extensively in its marketing since the 1980s. Little\nCaesars owns numerous federal trademark registrations for\nits various “Crazy” products, and in May 2024 finalized its\nfederal registration for the “Crazy Puffs” mark. 1 Before final-\nizing Little Caesars’ registration, an examining attorney with\nthe U.S. Patent and Trademark Office (“USPTO”) searched\nthe database of registered and pending marks and found no\nlikelihood of confusion between “Crazy Puffs” and any prior\nregistered or pending marks of third parties, including Iltaco.\n Since launching Crazy Puffs, Little Caesars has marketed\nits puffs heavily using its “Little Caesars” trade name and the\nclassic Little Caesars trade dress—the Roman Character logo,\n“Hot-N-Ready” tagline, “Crazy” mark, and bright orange col-\noring. Crazy Puffs marketing materials include a line reading\n“4 Hand-Held Pizza Puffs,” which appears in small print di-\nrectly below “Crazy Puffs.” The phrase “Pizza Puffs” appears\nas part of “4 Hand-Held Pizza Puffs,” which always appears\nin conjunction with the “Crazy Puffs” mark.\n\n\n\n\n 1 Little Caesars disclaimed “Puﬀs” as part of its trademark in compli-\n\nance with a USPTO examining attorney’s advice, meaning Little Caesars\nclaims no rights in that word.\n\f4 Nos. 24-3317 et al.\n\n\n\n\n Little Caesars Crazy Puﬀs Advertisement\n Little Caesars sells Crazy Puffs exclusively through its res-\ntaurants, where customers can purchase them through tradi-\ntional carryout or delivery channels. Little Caesars does not\nsell Crazy Puffs in grocery stores, convenience stores, or\nthird-party restaurants.\nB. Procedural Background\n The present dispute began in April 2024 when Iltaco sent\nLittle Caesars a cease-and-desist letter claiming “Crazy Puﬀs”\nand “4 Hand-Held Pizza Puﬀs” infringed Iltaco’s trademark\nrights in its “Pizza Puﬀ” and “Puﬀ” marks. Little Caesars dis-\nputed the merits of Iltaco’s claims and continued to use both\n“Crazy Puﬀs” and “4 Hand-Held Pizza Puﬀs.”\n On June 21, 2024, Iltaco brought a four count complaint\nagainst Little Caesars, asserting claims under Section 32 of the\nLanham Act, 15 U.S.C. § 1114, for trademark infringement\n(Count I); Section 43(a) of the Lanham Act, § 1125, for false\ndesignation of origin (Count II); the Illinois Uniform Decep-\ntive Trade Practices Act, 815 ILCS 510/1 (Count III); and\n\fNos. 24-3317 et al. 5\n\ncommon law unfair competition (Count IV). On the same day,\nIltaco ﬁled its motion for a preliminary injunction, seeking to\nenjoin Little Caesars from using “Crazy Puﬀs,” “Pizza Puﬀ,”\nand “Puﬀ” in selling its product. After holding an evidentiary\nhearing, the district court granted Iltaco’s motion as to “Pizza\nPuﬀ” and denied it as to “Crazy Puﬀs” and “Puﬀ.” Little Cae-\nsars now appeals the district court’s decision enjoining its use\nof “Pizza Puﬀ,” 2 and Iltaco cross-appeals the district court’s\ndenial of its injunction motion regarding “Crazy Puﬀs” and\n“Puﬀ.”\n II. Legal Standard\n “We review the district court's denial of the motion for a\npreliminary injunction for an abuse of discretion, viewing its\nlegal conclusions de novo, and ﬁndings of fact for clear error.”\nMinocqua Brewing Co. v. Hess, 160 F.4th 849, 851 (7th Cir. 2025)\n(citing Richwine v. Matuszak, 148 F.4th 942, 952 (7th Cir. 2025)).\n A district court may grant a preliminary injunction where\nthe “movant shows that it is likely to succeed on the merits of\n\n\n 2 Little Caesars also purports to appeal the district court’s decision re-\n\ngarding its use of “Puﬀ,” arguing that the district court improperly found\n“Puﬀ” is a protectable mark rather than a generic term. The district court\ndid ﬁnd “Puﬀ” protectable, but also found no likelihood of confusion\nstemming from Little Caesars’ use of “Puﬀ” and accordingly denied the\nmotion for preliminary injunction as to “Puﬀ.” Because the district court\nultimately ruled in Little Caesars’ favor as to “Puﬀ,” Little Caesars cannot\nappeal this favorable decision. See Bd. Of Trs. Of Univ. of Ill. v. Organon\nTeknika Corp. LLC, 614 F.3d 372, 374 (7th Cir. 2010); United States v. Accra\nPac, Inc., 173 F.3d 630, 632 (7th Cir. 1999) (“[A] litigant may not appeal\nfrom unfavorable statements in a judicial opinion, if the judgment was fa-\nvorable.”).\n\f6 Nos. 24-3317 et al.\n\nits claims and that traditional legal remedies would be inade-\nquate, such that it would suﬀer irreparable harm without in-\njunctive relief.” Grubhub Inc. v. Relish Labs LLC, 80 F.4th 835,\n843 (7th Cir. 2023) (citing Life Spine, Inc. v. Aegis Spine, Inc., 8\nF.4th 531, 539 (7th Cir. 2021)). Trademark law affords a rebut-\ntable presumption of irreparable harm to movants who show\nthey are likely to succeed on the merits of their trademark in-\nfringement claims. Id.; § 1116(a). If the movant shows it is\nlikely to succeed on the merits, the court next “weighs the\nharm of denying an injunction to the movant against the harm\nof granting an injunction to the nonmovant.” Grubhub, 80\nF.4th at 844. The court also considers the public interest in\ngranting versus denying the preliminary injunction request.\nLife Spine, 8 F.4th at 539.\n “[A]n applicant for preliminary relief bears a signiﬁcant\nburden,” Ill. Republican Party v. Pritzker, 973 F.3d 760, 763 (7th\nCir. 2020), and must show more than “a mere possibility of\nsuccess” on the merits to prevail, Life Spine, Inc., 8 F.4th at 540.\nIt is not enough, as Iltaco asserts, to show only a “better than\nnegligible” chance of succeeding on the merits. 3 Nken v.\nHolder, 556 U.S. 418, 434 (2009). Of course, the movant “need\nnot show that it deﬁnitely will win the case,” but it “must\n\n\n 3 It is diﬃcult to determine which standard the district court applied.\n\nIf the court applied the “better than negligible standard,” it abused its dis-\ncretion. See Lawson Prods., Inc. v. Avnet, Inc., 782 F.2d 1429, 1437 (7th Cir.\n1986) (“A district judge may abuse his discretion . . . [by applying] an in-\ncorrect preliminary injunction standard.”); see also Arwa Chiropractic, P.C.\nv. Med-Care Diabetic & Med. Supplies, Inc., 961 F.3d 942, 949 (7th Cir. 2020)\n(“A court abuses its discretion when it fails to consider a motion under the\nproper legal standard.”). Even if it applied the correct standard, however,\nthe district court committed other legal errors that require reversal in part.\n\fNos. 24-3317 et al. 7\n\ndemonstrate at a minimum how it proposes to prove the key\nelements of its case.” Grubhub, 80 F.4th at 844.\n III. Discussion\n Trademark law serves the dual purposes of protecting cus-\ntomers’ desires to make informed purchasing decisions based\non familiar, trustworthy marks, and protecting trademark\nowners against misappropriation of marks in which they\nhave invested signiﬁcant time, energy, and resources. See id.\n The Trademark Act of 1946, known as the Lanham Act,\ncodiﬁed at 15 U.S.C. §§ 1051–1141n, governs our analysis.\n“The Lanham Act allows those who employ trade or service\nmarks to register them for exclusive use in commerce.” Sport-\nFuel, Inc. v. PepsiCo, Inc., 932 F.3d 589, 595 (7th Cir. 2019) (cit-\ning KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543\nU.S. 111, 117 (2004)). Under the Lanham Act, a “holder of a\nregistered mark … has a civil action against anyone employ-\ning an imitation of it in commerce when ‘such use is likely to\ncause confusion, or to cause mistake, or to deceive.’” KP Per-\nmanent Make-Up, 543 U.S. at 117 (quoting § 1114(1)(a)). To pre-\nvail on such a claim, the plaintiﬀ must establish that “(1) its\nmark is protectable and (2) the defendant’s use of the mark is\nlikely to cause confusion among consumers.” CAE, Inc. v.\nClean Air Eng’g, Inc., 267 F.3d 660, 673–74 (7th Cir. 2001).\n The Lanham Act also provides aﬃrmative defenses to\ncounter a plaintiﬀ’s claims, including the “fair use” defense.\nSee § 1115(b). The fair use defense “allows individuals to use\notherwise trademarked language in a descriptive sense.”\nSportFuel, 932 F.3d at 595 (citing Packman v. Chi. Trib. Co., 267\nF.3d 628, 639 (7th Cir. 2001)). To raise the fair use defense suc-\ncessfully, a defendant must show that (1) it did not use the\n\f8 Nos. 24-3317 et al.\n\nmark at issue as a trademark, (2) the use is descriptive of its\ngoods, and (3) it used the mark fairly and in good faith.\nSorensen v. WD-40 Co., 792 F.3d 712, 722 (7th Cir. 2015) (citing\n§ 1115(b)(4)); Packman, 267 F.3d at 639.\nA. “Pizza Puﬀ”\n The district court found Iltaco was likely to succeed on the\nmerits of its trademark infringement action for its “Pizza\nPuﬀ” mark. In doing so, the court found Iltaco was likely to\nsucceed in showing “Pizza Puﬀ” was a protectable mark, that\nno fair use defense applied, and that there was substantial\nlikelihood of confusion between both parties’ use of “Pizza\nPuﬀ.” We address the district court’s ﬁndings regarding pro-\ntectability and fair use, 4 and ultimately reverse the prelimi-\nnary injunction on Little Caesars’ use of “Pizza Puﬀ” because\nIltaco failed to meet its burden of establishing a suﬃcient like-\nlihood of success on the merits of its claim.\n 1. Protectability Analysis\n To succeed on a trademark infringement action, the mark\nor marks at issue must be protectable under the Lanham Act\nin the ﬁrst place. Whether a mark is entitled to protection de-\npends upon where it falls on a spectrum of increasing distinc-\ntiveness from (1) generic, (2) descriptive, (3) suggestive,\n(4) arbitrary, or (5) fanciful. Platinum Home Mortg. Corp. v.\nPlatinum Fin. Grp., 149 F.3d 722, 727 (7th Cir. 1998); Packman,\n267 F.3d at 638. We review the district court’s factual\n\n\n\n 4 We are skeptical whether the district court made suﬃcient factual\n\nﬁndings to support its likelihood of confusion analysis. In any event, we\nneed not address likelihood of confusion because we are reversing on\nother grounds.\n\fNos. 24-3317 et al. 9\n\ndetermination of where a mark falls along this spectrum for\nclear error. Mil-Mar Shoe Co. v. Shonac Corp., 75 F.3d 1153,\n1156–57 (7th Cir. 1996) (“[P]lacement of a mark in a particular\ncategory is subject to review for clear error, and thus may be\nset aside only if, after considering all the evidence, we are ‘left\nwith the deﬁnite and ﬁrm conviction that a mistake has been\ncommitted.’” (quoting F. Corp. of N. Am. v. F., Ltd., 903 F.2d\n434, 438 (7th Cir.1990))).\n A trademark infringement action must fail if the mark is\ngeneric and will usually fail if the mark is descriptive. Generic\nterms, which are the terms “commonly used as the name of a\nkind of goods,” Liquid Controls Corp. v. Liquid Control Corp.,\n802 F.2d 934, 936 (7th Cir. 1986), may not be trademark pro-\ntected “under any circumstances,” Miller Brewing Co. v. G.\nHeileman Co., 561 F.2d 75, 79 (7th Cir. 1977). Descriptive terms,\nwhich describe the ingredients, characteristics, or qualities of\nan article, are protected only if the holder can establish that\nthe mark has acquired a secondary meaning. U.S. Pat. &\nTrademark Oﬀ. v. Booking.com B. V., 591 U.S. 549, 553 (2020).\nSecondary meaning attaches to marks that have “achieve[d]\nsigniﬁcance ‘in the minds of the public’ as identifying the ap-\nplicant’s goods or services.” Id. (quoting Wal-Mart Stores, Inc.\nv. Samara Bros., Inc., 529 U.S. 205, 211 (2000)). “Holiday Inn,”\nfor example, describes a vacation accommodation, but most\npeople associate the term with one speciﬁc brand. See also Un-\ncommon, LLC v. Spigen, Inc., 926 F.3d 409, 420 (7th Cir. 2019)\n(“5-Hour Energy . . . describes the caﬀeinated shot, but is\nreadily associated by most customers with one maker.” (in-\nternal quotations omitted)).\n\f10 Nos. 24-3317 et al.\n\n The Lanham Act provides a rebuttable presumption of va-\nlidity 5 for successfully registered trademarks, but the pre-\nsumption “evaporates as soon as evidence of invalidity is pre-\nsented.” Ga.-Pac. Consumer Prods. LP v. Kimberly-Clark Corp.,\n647 F.3d 723, 727 (7th Cir. 2011) (quoting Door Sys., Inc. v. Pro–\nLine Door Sys., Inc., 83 F.3d 169, 172 (7th Cir. 1996)). As rele-\nvant here, an incontestable registered mark—one that has been\nin continuous use for ﬁve years after registration—attains an\neven higher status of legal protection. The defendant may\novercome this strong presumption of validity only by show-\ning the incontestable trademark has become generic. § 1065;\nEco Mfg. LLC. v. Honeywell Int’l, Inc., 357 F.3d 649, 651 (7th Cir.\n2003).\n The district court found Iltaco’s “Pizza Puﬀ” mark was\nprotectable because Little Caesars failed to overcome the pre-\nsumption of protection aﬀorded to incontestable marks. Be-\ncause the court committed several errors in its analysis, and\nbecause Iltaco did not otherwise show it was likely to succeed\nin proving its mark is protectable, we reverse this portion of\nthe court’s decision.\n a. Primary Signiﬁcance Test for Genericness\n Whether a registered mark has become a generic term\nturns on the mark’s “primary signiﬁcance” to the relevant\npublic. § 1064(3) (“The primary signiﬁcance of the registered\nmark to the relevant public ... shall be the test for determining\nwhether the registered mark has become the generic name of\n\n\n 5 “The validity of a mark pertains to whether” a given term “is entitled\n\nto protection under trademark law.” Platinum Home, 149 F.3d at 726. If a\nterm that is the subject of a registered trademark is shown to be unprotect-\nable, the mark is invalid. Id.\n\fNos. 24-3317 et al. 11\n\ngoods or services.”); see also Booking.com, 591 U.S. at 556 (ap-\nplying “primary signiﬁcance” test to determine whether mark\nwas generic). The district court neglected to apply the primary\nsigniﬁcance test here. Instead, it found Iltaco was likely to suc-\nceed in showing its mark was protectable because other\nbrands selling similar products are “able to compete eﬀec-\ntively without using the plaintiﬀ’s ‘PIZZA PUFFS’ mark.” The\ndistrict court drew this standard from Ty Inc. v. Softbelly’s Inc.,\nwhere we explained, in dicta, that ﬁnding a trademark has be-\ncome generic is a “fateful step” that we do not ordinarily take\n“until the trademark has gone so far toward becoming the ex-\nclusive descriptor of the product that sellers of competing\nbrands cannot compete eﬀectively without using the name to\ndesignate the product they are selling.” 353 F.3d 528, 531 (7th\nCir. 2003). Because Iltaco provided examples of other brands\nproducing similar products that competed eﬀectively without\nusing “Pizza Puﬀ” (e.g., Hot Pockets, Totino’s Pizza Rolls,\nJimmy Dean Toaster Pop-Ups), the district court found the\nmark had not become the “exclusive descriptor” of the prod-\nuct and therefore was not generic under Ty.\n Our language in Ty may explain one reason why generic\nmarks are not protectable—i.e., because protecting generic\nmarks would stymie competition from sellers of similar prod-\nucts unable to suﬃciently describe their product. But it is not\nthe correct test for genericness. The plain language of the Lan-\nham Act, Supreme Court precedent, and even a previous par-\nagraph in Ty explain that we assess the mark’s primary sig-\nniﬁcance to determine whether it has become generic and\nthus unprotectable under the Lanham Act. See § 1064(3); Book-\ning.com, 591 U.S. at 556; Ty, 353 F.3d at 530–31 (“[T]he legal\ntest of genericness is ‘primary signiﬁcance.’”). A term need\nnot be the exclusive descriptor of a product to become generic.\n\f12 Nos. 24-3317 et al.\n\nRather, a trademark plaintiﬀ “may not prevent [the] defend-\nant from using [a mark] simply because there are other titles\ndefendant could use.” Tech. Publ’g Co. v. Lebhar-Friedman, Inc.,\n729 F.2d 1136, 1141 (7th Cir 1984); 6 see also 2 J. Thomas McCar-\nthy, McCarthy on Trademarks and Unfair Competition § 12:9\n(2006) (“Any product may have many generic designations.\nAny one of those is incapable of trademark signiﬁcance.”). A\ngeneric term is not made less generic by the availability of\nother terms. Tech. Publ’g Co., 729 F.2d at 1141. If we held oth-\nerwise, we would “extend protection to a generic term, a re-\nsult clearly at odds with trademark law.” Id. Because the dis-\ntrict court failed to apply the correct legal test––the primary\nsigniﬁcance test––to determine genericness, the district court\nerred.\n b. Primary Signiﬁcance of “Pizza Puﬀ”\n Viewed under the correct standard, the issue is whether\nthe primary signiﬁcance of “Pizza Puﬀ” to consumers is as a\ngeneric term describing a class of products or a distinctive\nterm indicating association with a particular brand.\n\n\n\n 6 Iltaco attempts to distinguish Technical Publishing Co. because it dealt\n\nwith a magazine title, and “[m]agazines diﬀer from other goods[] in that\ntheir title is a primary means of conveying their content,” so “[c]ourts con-\nfronted with similar trade journal disputes have held consistently that ti-\ntles consisting of the trade name and an indication of the type of publica-\ntion are generic.” 729 F.2d at 1140. But the distinction we drew between\nmagazines and other goods related only to our classiﬁcation of magazine\ntitles as generic or descriptive terms; it did not extend to the test we apply\nto determine whether a mark has become generic. Id. Elsewhere in the\nopinion, we conﬁrmed “[t]he test in determining whether a magazine title\nis generic is no diﬀerent than that applied in determining whether any\nother mark is generic.” Id.\n\fNos. 24-3317 et al. 13\n\nBooking.com, 591 U.S. at 560–61. To determine the primary sig-\nniﬁcance of a term, the court may consider “consumer sur-\nveys, … dictionaries, usage by consumers and competitors,\nand any other source of evidence bearing on how consumers\nperceive a term’s meaning.” Id. at 561 n.6.\n Little Caesars presented extensive evidence to show that\nthe primary signiﬁcance of Iltaco’s incontestable 7 “Pizza Puﬀ”\nmark to consumers is as a generic term. First, Little Caesars\npresented the results of a Teﬂon survey, 8 showing 83.3% of\nconsumers of dough-based, pizza-ingredient-ﬁlled foods per-\nceive “pizza puﬀ” as a common (i.e., generic) term, while only\n12.7% perceive the term as a brand name. The district court\ndismissed this strong evidence of genericness by ﬁnding it\nwas “not conclusive” because in Ty we said, in dicta, that as\nfew as ten percent of consumers associating a mark with an\nowner’s brand could result in consumer confusion. 353 F.3d\nat 531. We cannot accept that ten percent of consumers is a\nrelevant percentage for the genericness test, which focuses on\nthe “primary signiﬁcance” of a product to consumers. “[I]f a\nsurvey showed that 75 percent of the public regard the word\nas generic, then that is its majority usage and its ‘principal sig-\nniﬁcance.’” McCarthy § 12:6. Primary signiﬁcance requires far\n\n\n 7 Iltaco registered its “Pizza Puﬀ” mark in 2009, well over ﬁve years\n\nago, and has used it consistently since, so it has now become incontestable.\nThe parties agree this mark is incontestable.\n 8 Teﬂon surveys are the “most judicially accepted format for testing for\n\ngenericness.” McCarthy § 12:16. In a Teﬂon survey, the survey “begins\nwith a brief lesson explaining the diﬀerence between brand names and\ncommon names. It then asks respondents to classify a series of words, in-\ncluding the trademark at issue, as either brand names or common names.”\nElliott v. Google, Inc., 860 F.3d 1151, 1160 n.7 (9th Cir. 2017).\n\f14 Nos. 24-3317 et al.\n\nmore than ten percent. The court thus erred when it found\nLittle Caesars’ evidence inconclusive based on this inapplica-\nble statement of the law. Viewed properly, survey data show-\ning over 80 percent of relevant consumers perceive “pizza\npuﬀ” as a generic term presents strong evidence of its gener-\nicness. See McCarthy § 12:6.\n Little Caesars also presented several deﬁnitions of “pizza\npuﬀ” drawn from crowd-sourced dictionaries to show the\nterm has acquired a generic meaning. Deﬁnitions.net de-\nscribes a pizza puﬀ as “A dough pouch ﬁlled with the ingre-\ndients of a pizza, such as cheese, pizza sauce, sausage, and\npepperoni, and usually deep fried.” Kiddle Encyclopedia (an\nonline encyclopedia for kids) describes a pizza puﬀ as “A\ndeep-fried dough pocket ﬁlled with cheese, tomato sauce, and\nother pizza ingredients such as sausage or pepperoni.”\nThough the district court did not address these proﬀered\npizza puﬀ deﬁnitions, Iltaco argues on appeal that the crowd-\nsourced dictionary deﬁnitions are unreliable evidence be-\ncause anyone can edit an online crowd-sourced dictionary.\nBut Little Caesars introduced these deﬁnitions to show how\nthe public uses and perceives the term “pizza puﬀ.” Our ge-\nnericness analysis inquires into the primary signiﬁcance of a\nterm to the public, not its unequivocal technical deﬁnition. 9\n\n 9 A number of federal courts have found crowd-sourced deﬁnitions\n\nunreliable and even inadmissible as evidence of a term’s technical deﬁni-\ntion or as the basis for an expert’s testimony. See, e.g., Badasa v. Mukasey,\n540 F.3d 909, 909 (8th Cir. 2008) (noting Wikipedia deﬁnition of an Ethio-\npian travel document was unreliable evidence of party’s immigration sta-\ntus); Advanced Mech. Servs., Inc. v. Auto-Owners Ins. Co., No. 14-CV-388,\n2017 WL 3381366, at 4 (W.D. Ky. Aug. 4, 2017) (ﬁnding expert witness’s\nopinion inadmissible because expert relied on Wikipedia deﬁnition);\n\fNos. 24-3317 et al. 15\n\nCrowd-sourced dictionary deﬁnitions inform that question,\nso they are relevant to our analysis and weigh in favor of ge-\nnericness. Still, the fact that anyone can edit a crowd-sourced\ndictionary deﬁnition bears on the weight of Little Caesars’\ndictionary evidence.\n The district court acknowledged, though did not analyze,\nevidence Little Caesars introduced of third parties using\n“pizza puﬀ” in their USPTO applications and registrations to\nindicate the term has widespread generic use in the industry.\nWe have found third-party registrations probative of a term’s\nwidespread descriptive use where over ﬁfty third-party reg-\nistrations used the same term to describe a similar quality. See\nSpraying Sys. Co. v. Delevan, Inc., 975 F.2d 387, 393 (7th Cir.\n1992) (ﬁnding the suﬃx “JET” descriptive of a hose product\nbased in part on ﬁfty other registrations using “JET” to de-\nscribe similar high-velocity water stream products). Here, the\nﬁve USPTO registrations cited by Little Caesars may not be\ndispositive on their own, but together with consumer survey\n\n\nFleishman v. Cont'l Cas. Co., No. 09 C 414, 2011 WL 5866264, at 4 (N.D. Ill.\nNov. 22, 2011) (ﬁnding inadmissible Wikipedia deﬁnition of “aneurysm”\nas evidence of plaintiﬀ’s injury). Similarly, the Fourth Circuit found a\nSixth Amendment violation in a criminal trial where the jury inde-\npendently obtained and considered a Wikipedia deﬁnition of an element\nof the crime at issue. United States v. Lawson, 677 F.3d 629, 641 (4th Cir.\n2012). But where a crowdsourced deﬁnition is oﬀered to show the signiﬁ-\ncance of that term to members of the public, at least one federal court has\nrelied upon the deﬁnition. See Hawkins v. City of Phila., 571 F. Supp. 3d 455,\n458 (E.D. Pa. 2021) (relying on crowd-sourced dictionary’s deﬁnition of a\nslang term). Thus, while crowd-sourced dictionary deﬁnitions may unre-\nliably evince a term’s correct or technical deﬁnition, they more reliably\nrepresent what a term means to members of the public, which is what the\ngenericness analysis is concerned about.\n\f16 Nos. 24-3317 et al.\n\nand dictionary evidence the USPTO registrations indicate\nother producers of similar products primarily think of “pizza\npuﬀ” as a name for a class of foods rather than a particular\nbrand within that class.\n Iltaco’s arguments to the contrary—that the USPTO de-\nscriptions are unreliable evidence and that they do not apply\nbecause some of the marks using “pizza puﬀ” as a descriptor\nare inactive—do not counter this evidence. Iltaco relies on a\ndistrict court decision stating that USPTO registrations are not\nsuﬃciently reliable for the court to take judicial notice of\nthem, not that they are unreliable evidence altogether. Face-\nbook, Inc. v. Teachbook.com LLC, 819 F. Supp. 2d 764, 772 (N.D.\nIll. 2011). And USPTO registrations using “pizza puﬀ” are\nprobative of how other companies in the food industry use\nthat term even if they are inactive. Spraying Sys., 975 F.2d at\n393 (“[T]hose [registered trademarks] that are not [in current\nuse] can still be probative on the issue of descriptiveness.”).\n Not all of Little Caesars’ evidence of genericness is as com-\npelling. Online recipes for pizza puﬀs have low evidentiary\nvalue because the internet is replete with copycat recipes\nteaching home cooks how to replicate popular, often trade-\nmarked, dishes at home (e.g., recipes for homemade Hot-\nPockets, Pop-Tarts, etc.). 10 Little Caesars also introduced evi-\ndence of menus listing “pizza puﬀ” alongside generic food\n\n\n\n 10 See Illinois Tamale Co. v. El-Greg, Inc., No. 16 C 5387, 2018 WL 1534971\n\nat 5 (N.D. Ill. Mar. 29, 2018) (“There are also thousands of recipes for a\nhomemade version of Hot Pockets, another speciﬁc brand of stuﬀed sand-\nwich. The existence of such recipes does not necessarily suggest that ‘Hot\nPockets’ is a generic term [but rather] that Hot Pockets are a well-known\nbrand that home cooks want to replicate.” (citation modiﬁed)).\n\fNos. 24-3317 et al. 17\n\nitems, indicating the term is used widely in the industry as a\ngeneric term. See Miller Brewing, 561 F.2d at 80 (ﬁnding “light”\ngeneric in part because it is “widely used in the beer indus-\ntry”). These menus provide some support for genericness, but\nunlike the evidence in Miller Brewing showing others in the\nbeer industry used “light” to describe their own distinct prod-\nucts, it is unclear whether the menus Little Caesars cited refer\nto the restaurants’ own products or to Iltaco’s, given Iltaco\nsells its food products to third-party restaurants. Little Cae-\nsars nevertheless contends the menus support genericness be-\ncause placing “pizza puﬀ” alongside generic terms like\n“fries” and “hot dog” must mean “pizza puﬀ” is generic. But\nagain, because Little Caesars did not show 11 the menus refer-\nenced anything but Iltaco’s product, they do not necessarily\nshow others in the industry do not associate “pizza puﬀ” with\nIltaco.\n Even so, the district court ultimately erred by ﬁnding Il-\ntaco was likely to succeed in showing “Pizza Puﬀ” is protect-\nable because the court failed to apply the primary signiﬁcance\ntest and the record did not support its ﬁnal decision. Little\nCaesars’ consumer survey data, dictionary deﬁnitions, and\nUSPTO registrations showing generic usage were suﬃcient to\novercome the presumption of trademark validity, and Iltaco\ndid not show how it could overcome this evidence at trial to\nprove “Pizza Puﬀ” is a protectable mark. Iltaco thus failed to\ncarry its burden of showing a likelihood of success on the\n\n\n 11 Little Caesars must make an aﬃrmative showing because it bears\n\nthe burden of overcoming the presumption of protectability inherent to\nincontestable marks. See Liquid Controls, 802 F.2d at 936 (“The burden is on\nthe defendant to overcome the presumption.”).\n\f18 Nos. 24-3317 et al.\n\nmerits, so the district court should not have granted its motion\nfor preliminary injunction.\n 2. Fair Use Analysis\n Even if “Pizza Puﬀ” is suﬃciently distinctive to merit pro-\ntection under the Lanham Act, Iltaco cannot prevail without\nshowing how it will successfully counter Little Caesars’ fair\nuse defense. A defendant in a trademark infringement case\nmay invoke the “fair use” defense by demonstrating that (1) it\nused the phrase at issue in a non-trademark capacity, (2) the\nphrase is descriptive of its goods and services, and (3) it used\nthe phrase “fairly and in good faith” only to describe its\ngoods. § 1115(b)(4); see also Sands, Taylor & Wood Co. v. Quaker\nOats Co., 978 F.2d 947, 951 (7th Cir. 1992); Packman, 267 F.3d at\n639.\n Little Caesars asserted a fair use defense in response to Il-\ntaco’s preliminary injunction motion, but the district court re-\njected the defense based on the second prong, 12 explaining:\n The defendants have not shown that “PIZZA PUFFS”\n is descriptive of their goods. The defendants[’] product\n looks like a mini-pizza or a pizza muﬃn or a pizza cup-\n cake or a pizza bite. It is not apparent what part of the\n defendants’ product is a puﬀ, which means that the\n mark is not descriptive of the defendants’ goods.\n The district court erred in reaching this conclusion be-\ncause it misapplied the relevant legal standard to determine\nwhether “Pizza Puﬀ” is descriptive of Little Caesars’ product.\nThe district court mistakenly required Little Caesars’ product\n\n\n 12 Because the district court did not address the ﬁrst or third prongs\n\nof fair use, we do not address them here.\n\fNos. 24-3317 et al. 19\n\nto be a pizza puﬀ for the term to apply descriptively. In fact,\nthe term need only refer to a characteristic of the product.\nF. Corp., 903 F.2d at 444. We identiﬁed a similar problem in\nQuaker Oats, where the district court erred by requiring a de-\nscriptive term to “bring to mind the product in question.” 978\nF.2d at 952. We explained “it is not necessary that a descrip-\ntive term depict the [product] itself, but only that the term re-\nfer to a characteristic of the [product].” Id. (quoting F. Corp., 903\nF.2d at 444). The district court should have considered\nwhether “Pizza Puﬀ” fairly described a characteristic or qual-\nity of Little Caesars’ Crazy Puﬀs product, not whether Crazy\nPuﬀs are pizza puﬀs.\n Under the correct test, the district court’s determination\nthat “Pizza Puﬀ” is not descriptive falls short. A Little Caesars\nrepresentative testiﬁed that “Crazy Puﬀs” are “light and airy\nmuﬃns” that are “puﬀy.” No one disputes that Crazy Puﬀs\nare ﬁlled with pizza ingredients like cheese, tomato sauce,\nmeat, and vegetables. This evidence fairly shows that “Pizza\nPuﬀ” describes a Crazy Puﬀ, which is a puﬀy and airy muﬃn\ncontaining pizza ingredients. And “Pizza Puﬀ” appears as\npart of the phrase “4 Hand-Held Pizza Puﬀs,” which is clearly\ndescribing the quantity, size, and type of food customers can\nexpect when they purchase a Crazy Puﬀ. The district court\ndid not consider this evidence or explain how Iltaco could\ncounter it at trial. Because the district court applied the wrong\nstandard, the district court abused its discretion in granting\nthe preliminary injunction for “Pizza Puﬀ.” See Lawson Prods.,\n782 F.2d at 1437 (“[A] factual or legal error may alone be suf-\nﬁcient to establish that the court ‘abused its discretion’ in\nmaking its ﬁnal determination.”).\n\f20 Nos. 24-3317 et al.\n\nB. “Crazy Puﬀs” and “Puﬀ”\n The district court found Iltaco failed to meet its burden\nwith respect to Little Caesars’ use of its “Crazy Puﬀs” mark\nbecause Iltaco did not show there was a likelihood of confu-\nsion between Little Caesars’ “Crazy Puﬀs” mark and Iltaco’s\n“Pizza Puﬀ” or “Puﬀ” marks. The court did not clearly err in\neither determination, so we aﬃrm its decision regarding both\nmarks.\n The district court correctly rejected Iltaco’s suggestion that\n“Crazy Puﬀs” and “Pizza Puﬀ” were confusingly similar be-\ncause both contain the word “Puﬀ.” When evaluating the like-\nlihood of confusion between marks, “we must keep in mind\nthat ‘[t]he commercial impression of a trade-mark is derived\nfrom it as a whole, not from its elements separated and con-\nsidered in detail.’” Grubhub, 80 F.4th at 848 (quoting Est. of\nP.D. Beckwith, Inc. v. Comm'r of Pats., 252 U.S. 538, 545–46\n(1920)). Thus, we cannot look at “Puﬀ” (from “Crazy Puﬀs”)\nin isolation and ﬁnd it confusingly similar to “Puﬀ” in Iltaco’s\n“Pizza Puﬀ” name. We must consider the “Crazy Puﬀs” mark\nin its entirety, as the district court rightly explained.\n Viewing the “Crazy Puﬀs” mark as a whole, the district\ncourt did not err in ﬁnding no likelihood of confusion with\n“Pizza Puﬀ.” The court found the two terms are signiﬁcantly\ndiﬀerent because Iltaco’s mark denotes the ingredients found\nin the product while Little Caesars’ mark uses “Crazy” to tie\nits product to its own family of Crazy marks. Iltaco’s mark\ndescribes what a consumer can expect to ﬁnd inside the puﬀ,\nwhile Little Caesars’ mark designates its brand. Though the\ncourt found other likelihood-of-confusion factors may favor\nIltaco, it held “the diﬀerence in the marks’ overall impression\n\fNos. 24-3317 et al. 21\n\nprecludes ﬁnding a likelihood of success by the plaintiﬀ on\nlikelihood of confusion.”\n A district court has broad “ﬂexibility to determine what\n[likelihood-of-confusion] factors are most critical in a case.”\nTy, Inc. v. Jones Grp., Inc., 237 F.3d 891, 901 (7th Cir. 2001). And\nbecause the similarity of the marks is one of the most im-\nportant considerations, a district court does not abuse its dis-\ncretion by ﬁnding no likelihood of confusion based on dissim-\nilar marks even when other factors weigh in favor of confu-\nsion. Eli Lilly & Co. v. Nat. Answers, Inc., 233 F.3d 456, 462 (7th\nCir. 2000). Here, the district court made a reasoned determi-\nnation that the two marks were not similar and did not abuse\nits discretion in weighing the similarity factor heavily to ﬁnd\nno likelihood of success in showing likelihood of confusion.\n * * *\n Because Iltaco did not show it is likely to succeed in prov-\ning that “Pizza Puﬀ” is protectable or rebutting Little Caesars’\nfair use defense at trial, Iltaco has not established a likelihood\nof success on the merits. Accordingly, we do not proceed to\nthe harms-balancing or public interest steps of the prelimi-\nnary injunction analysis. See Grubhub, 80 F.4th at 844 (“[Only]\n[u]pon a showing of [likelihood of success on the merits], the\ncourt weighs the harm of denying an injunction.”).\n The district court abused its discretion by granting the pre-\nliminary injunction as to “Pizza Puﬀ,” but did not abuse its\ndiscretion in denying the injunction regarding “Crazy Puﬀs”\nor “Puﬀ.”\n The judgment of the district court is\n AFFIRMED IN PART AND REVERSED IN PART.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11242193/", "author_raw": "ST. EVE, Circuit Judge"}]}	SCUDDER	ST EVE	JACKSON-AKIWUMI	1		{"SCUDDER": ", Circuit", "ST EVE": ", Circuit", "JACKSON-AKIWUMI": ", Circuit"}	2	0	0	2	null	https://www.courtlistener.com/api/rest/v4/clusters/10775606/	Published	2	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,775,607	Illinois Tamale Company, Inc. v. LC Trademarks, Inc.	2026-01-16	25-1076	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before SCUDDER, ST. EVE, and JACKSON-AKIWUMI, Circuit Judges.", "parties": "", "opinions": [{"author": "ST. EVE, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNos. 24-3317, 25-1072, 25-1076 & 25-1112\nILLINOIS TAMALE COMPANY, INC., doing business as ILTACO,\n Plaintiﬀ-Appellee/Cross-Appellant,\n v.\n\nLC TRADEMARKS, INC. and LITTLE CAESAR ENTERPRISES, INC.,\n Defendants-Appellants/Cross-Appellees.\n ____________________\n\n Appeals from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 1:24-cv-05210 — Jeremy C. Daniel, Judge.\n ____________________\n\n ARGUED NOVEMBER 14, 2025 — DECIDED JANUARY 16, 2026\n ____________________\n\n Before SCUDDER, ST. EVE, and JACKSON-AKIWUMI, Circuit\nJudges.\n ST. EVE, Circuit Judge. Illinois Tamale Company, Inc. (“Il-\ntaco”), a Chicago-based food company, brought this trade-\nmark infringement action against LC Trademarks, Inc. and\nLittle Caesar Enterprises, Inc. (collectively “Little Caesars”),\nbased on Little Caesars’ advertising for its “Crazy Puﬀs” food\nproduct. Iltaco claimed Little Caesars’ Crazy Puﬀs product\nand advertising caused a substantial likelihood of confusion\n\f2 Nos. 24-3317 et al.\n\nwith Iltaco’s trademark-protected “Pizza Puﬀ” product. Iltaco\nalso moved for a preliminary injunction to enjoin Little Cae-\nsars from using “Crazy Puﬀ,” “Pizza Puﬀ,” and “Puﬀ” in its\nproduct names and advertising. The district court denied the\npreliminary injunction as to “Crazy Puﬀ” and “Puﬀ,” ﬁnding\nIltaco failed to show suﬃcient likelihood of success in its\ntrademark infringement action regarding those terms, but\ngranted the preliminary injunction as to “Pizza Puﬀ.” Because\nthe district court erred in concluding that Iltaco showed it was\nlikely to succeed on the merits of its trademark infringement\nclaim pertaining to “Pizza Puﬀ,” we reverse that portion of its\ndecision. We aﬃrm the district court’s decision as to “Crazy\nPuﬀ” and “Puﬀ.”\n I. Background\nA. Factual Background\n Iltaco is a Chicago-based food company founded in 1927.\nIn 1976, Iltaco began selling its pizza puﬀ product, which is\nsimilar to a calzone but made from a ﬂour tortilla wrapped\naround pizza toppings and can be fried or baked. Iltaco now\nsells its pizza puﬀs nationwide and has expanded its line of\nstuﬀed sandwich products to include a wide range of ingre-\ndients. Iltaco’s list of registered trademarks includes the\n“Pizza Puff,” “Gyro Puff,” “Ham Breakfast Puff,” “Sausage\nBreakfast Puff,” and “Spinach & Cheese Puff.” Specifically, it\nregistered its “Pizza Puff” trademark on May 26, 2009. It also\nhas a registered trademark for “Puff” as of May 3, 2022. Iltaco\nadvertises its stuffed sandwich products under the “Pizza\nPuff” and “Puff” trademarks.\n Little Caesars is a large chain of pizza restaurants founded\nin the United States with restaurant franchises worldwide. In\n\fNos. 24-3317 et al. 3\n\nMarch 2024, Little Caesars launched its new Crazy Puffs\nproduct in its restaurants throughout the country. Crazy\nPuffs are small, baked pizza dough cups filled with pizza in-\ngredients and topped with cheese. Crazy Puffs join Little Cae-\nsars’ numerous other “Crazy” marks, which the pizza chain\nhas used extensively in its marketing since the 1980s. Little\nCaesars owns numerous federal trademark registrations for\nits various “Crazy” products, and in May 2024 finalized its\nfederal registration for the “Crazy Puffs” mark. 1 Before final-\nizing Little Caesars’ registration, an examining attorney with\nthe U.S. Patent and Trademark Office (“USPTO”) searched\nthe database of registered and pending marks and found no\nlikelihood of confusion between “Crazy Puffs” and any prior\nregistered or pending marks of third parties, including Iltaco.\n Since launching Crazy Puffs, Little Caesars has marketed\nits puffs heavily using its “Little Caesars” trade name and the\nclassic Little Caesars trade dress—the Roman Character logo,\n“Hot-N-Ready” tagline, “Crazy” mark, and bright orange col-\noring. Crazy Puffs marketing materials include a line reading\n“4 Hand-Held Pizza Puffs,” which appears in small print di-\nrectly below “Crazy Puffs.” The phrase “Pizza Puffs” appears\nas part of “4 Hand-Held Pizza Puffs,” which always appears\nin conjunction with the “Crazy Puffs” mark.\n\n\n\n\n 1 Little Caesars disclaimed “Puﬀs” as part of its trademark in compli-\n\nance with a USPTO examining attorney’s advice, meaning Little Caesars\nclaims no rights in that word.\n\f4 Nos. 24-3317 et al.\n\n\n\n\n Little Caesars Crazy Puﬀs Advertisement\n Little Caesars sells Crazy Puffs exclusively through its res-\ntaurants, where customers can purchase them through tradi-\ntional carryout or delivery channels. Little Caesars does not\nsell Crazy Puffs in grocery stores, convenience stores, or\nthird-party restaurants.\nB. Procedural Background\n The present dispute began in April 2024 when Iltaco sent\nLittle Caesars a cease-and-desist letter claiming “Crazy Puﬀs”\nand “4 Hand-Held Pizza Puﬀs” infringed Iltaco’s trademark\nrights in its “Pizza Puﬀ” and “Puﬀ” marks. Little Caesars dis-\nputed the merits of Iltaco’s claims and continued to use both\n“Crazy Puﬀs” and “4 Hand-Held Pizza Puﬀs.”\n On June 21, 2024, Iltaco brought a four count complaint\nagainst Little Caesars, asserting claims under Section 32 of the\nLanham Act, 15 U.S.C. § 1114, for trademark infringement\n(Count I); Section 43(a) of the Lanham Act, § 1125, for false\ndesignation of origin (Count II); the Illinois Uniform Decep-\ntive Trade Practices Act, 815 ILCS 510/1 (Count III); and\n\fNos. 24-3317 et al. 5\n\ncommon law unfair competition (Count IV). On the same day,\nIltaco ﬁled its motion for a preliminary injunction, seeking to\nenjoin Little Caesars from using “Crazy Puﬀs,” “Pizza Puﬀ,”\nand “Puﬀ” in selling its product. After holding an evidentiary\nhearing, the district court granted Iltaco’s motion as to “Pizza\nPuﬀ” and denied it as to “Crazy Puﬀs” and “Puﬀ.” Little Cae-\nsars now appeals the district court’s decision enjoining its use\nof “Pizza Puﬀ,” 2 and Iltaco cross-appeals the district court’s\ndenial of its injunction motion regarding “Crazy Puﬀs” and\n“Puﬀ.”\n II. Legal Standard\n “We review the district court's denial of the motion for a\npreliminary injunction for an abuse of discretion, viewing its\nlegal conclusions de novo, and ﬁndings of fact for clear error.”\nMinocqua Brewing Co. v. Hess, 160 F.4th 849, 851 (7th Cir. 2025)\n(citing Richwine v. Matuszak, 148 F.4th 942, 952 (7th Cir. 2025)).\n A district court may grant a preliminary injunction where\nthe “movant shows that it is likely to succeed on the merits of\n\n\n 2 Little Caesars also purports to appeal the district court’s decision re-\n\ngarding its use of “Puﬀ,” arguing that the district court improperly found\n“Puﬀ” is a protectable mark rather than a generic term. The district court\ndid ﬁnd “Puﬀ” protectable, but also found no likelihood of confusion\nstemming from Little Caesars’ use of “Puﬀ” and accordingly denied the\nmotion for preliminary injunction as to “Puﬀ.” Because the district court\nultimately ruled in Little Caesars’ favor as to “Puﬀ,” Little Caesars cannot\nappeal this favorable decision. See Bd. Of Trs. Of Univ. of Ill. v. Organon\nTeknika Corp. LLC, 614 F.3d 372, 374 (7th Cir. 2010); United States v. Accra\nPac, Inc., 173 F.3d 630, 632 (7th Cir. 1999) (“[A] litigant may not appeal\nfrom unfavorable statements in a judicial opinion, if the judgment was fa-\nvorable.”).\n\f6 Nos. 24-3317 et al.\n\nits claims and that traditional legal remedies would be inade-\nquate, such that it would suﬀer irreparable harm without in-\njunctive relief.” Grubhub Inc. v. Relish Labs LLC, 80 F.4th 835,\n843 (7th Cir. 2023) (citing Life Spine, Inc. v. Aegis Spine, Inc., 8\nF.4th 531, 539 (7th Cir. 2021)). Trademark law affords a rebut-\ntable presumption of irreparable harm to movants who show\nthey are likely to succeed on the merits of their trademark in-\nfringement claims. Id.; § 1116(a). If the movant shows it is\nlikely to succeed on the merits, the court next “weighs the\nharm of denying an injunction to the movant against the harm\nof granting an injunction to the nonmovant.” Grubhub, 80\nF.4th at 844. The court also considers the public interest in\ngranting versus denying the preliminary injunction request.\nLife Spine, 8 F.4th at 539.\n “[A]n applicant for preliminary relief bears a signiﬁcant\nburden,” Ill. Republican Party v. Pritzker, 973 F.3d 760, 763 (7th\nCir. 2020), and must show more than “a mere possibility of\nsuccess” on the merits to prevail, Life Spine, Inc., 8 F.4th at 540.\nIt is not enough, as Iltaco asserts, to show only a “better than\nnegligible” chance of succeeding on the merits. 3 Nken v.\nHolder, 556 U.S. 418, 434 (2009). Of course, the movant “need\nnot show that it deﬁnitely will win the case,” but it “must\n\n\n 3 It is diﬃcult to determine which standard the district court applied.\n\nIf the court applied the “better than negligible standard,” it abused its dis-\ncretion. See Lawson Prods., Inc. v. Avnet, Inc., 782 F.2d 1429, 1437 (7th Cir.\n1986) (“A district judge may abuse his discretion . . . [by applying] an in-\ncorrect preliminary injunction standard.”); see also Arwa Chiropractic, P.C.\nv. Med-Care Diabetic & Med. Supplies, Inc., 961 F.3d 942, 949 (7th Cir. 2020)\n(“A court abuses its discretion when it fails to consider a motion under the\nproper legal standard.”). Even if it applied the correct standard, however,\nthe district court committed other legal errors that require reversal in part.\n\fNos. 24-3317 et al. 7\n\ndemonstrate at a minimum how it proposes to prove the key\nelements of its case.” Grubhub, 80 F.4th at 844.\n III. Discussion\n Trademark law serves the dual purposes of protecting cus-\ntomers’ desires to make informed purchasing decisions based\non familiar, trustworthy marks, and protecting trademark\nowners against misappropriation of marks in which they\nhave invested signiﬁcant time, energy, and resources. See id.\n The Trademark Act of 1946, known as the Lanham Act,\ncodiﬁed at 15 U.S.C. §§ 1051–1141n, governs our analysis.\n“The Lanham Act allows those who employ trade or service\nmarks to register them for exclusive use in commerce.” Sport-\nFuel, Inc. v. PepsiCo, Inc., 932 F.3d 589, 595 (7th Cir. 2019) (cit-\ning KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543\nU.S. 111, 117 (2004)). Under the Lanham Act, a “holder of a\nregistered mark … has a civil action against anyone employ-\ning an imitation of it in commerce when ‘such use is likely to\ncause confusion, or to cause mistake, or to deceive.’” KP Per-\nmanent Make-Up, 543 U.S. at 117 (quoting § 1114(1)(a)). To pre-\nvail on such a claim, the plaintiﬀ must establish that “(1) its\nmark is protectable and (2) the defendant’s use of the mark is\nlikely to cause confusion among consumers.” CAE, Inc. v.\nClean Air Eng’g, Inc., 267 F.3d 660, 673–74 (7th Cir. 2001).\n The Lanham Act also provides aﬃrmative defenses to\ncounter a plaintiﬀ’s claims, including the “fair use” defense.\nSee § 1115(b). The fair use defense “allows individuals to use\notherwise trademarked language in a descriptive sense.”\nSportFuel, 932 F.3d at 595 (citing Packman v. Chi. Trib. Co., 267\nF.3d 628, 639 (7th Cir. 2001)). To raise the fair use defense suc-\ncessfully, a defendant must show that (1) it did not use the\n\f8 Nos. 24-3317 et al.\n\nmark at issue as a trademark, (2) the use is descriptive of its\ngoods, and (3) it used the mark fairly and in good faith.\nSorensen v. WD-40 Co., 792 F.3d 712, 722 (7th Cir. 2015) (citing\n§ 1115(b)(4)); Packman, 267 F.3d at 639.\nA. “Pizza Puﬀ”\n The district court found Iltaco was likely to succeed on the\nmerits of its trademark infringement action for its “Pizza\nPuﬀ” mark. In doing so, the court found Iltaco was likely to\nsucceed in showing “Pizza Puﬀ” was a protectable mark, that\nno fair use defense applied, and that there was substantial\nlikelihood of confusion between both parties’ use of “Pizza\nPuﬀ.” We address the district court’s ﬁndings regarding pro-\ntectability and fair use, 4 and ultimately reverse the prelimi-\nnary injunction on Little Caesars’ use of “Pizza Puﬀ” because\nIltaco failed to meet its burden of establishing a suﬃcient like-\nlihood of success on the merits of its claim.\n 1. Protectability Analysis\n To succeed on a trademark infringement action, the mark\nor marks at issue must be protectable under the Lanham Act\nin the ﬁrst place. Whether a mark is entitled to protection de-\npends upon where it falls on a spectrum of increasing distinc-\ntiveness from (1) generic, (2) descriptive, (3) suggestive,\n(4) arbitrary, or (5) fanciful. Platinum Home Mortg. Corp. v.\nPlatinum Fin. Grp., 149 F.3d 722, 727 (7th Cir. 1998); Packman,\n267 F.3d at 638. We review the district court’s factual\n\n\n\n 4 We are skeptical whether the district court made suﬃcient factual\n\nﬁndings to support its likelihood of confusion analysis. In any event, we\nneed not address likelihood of confusion because we are reversing on\nother grounds.\n\fNos. 24-3317 et al. 9\n\ndetermination of where a mark falls along this spectrum for\nclear error. Mil-Mar Shoe Co. v. Shonac Corp., 75 F.3d 1153,\n1156–57 (7th Cir. 1996) (“[P]lacement of a mark in a particular\ncategory is subject to review for clear error, and thus may be\nset aside only if, after considering all the evidence, we are ‘left\nwith the deﬁnite and ﬁrm conviction that a mistake has been\ncommitted.’” (quoting F. Corp. of N. Am. v. F., Ltd., 903 F.2d\n434, 438 (7th Cir.1990))).\n A trademark infringement action must fail if the mark is\ngeneric and will usually fail if the mark is descriptive. Generic\nterms, which are the terms “commonly used as the name of a\nkind of goods,” Liquid Controls Corp. v. Liquid Control Corp.,\n802 F.2d 934, 936 (7th Cir. 1986), may not be trademark pro-\ntected “under any circumstances,” Miller Brewing Co. v. G.\nHeileman Co., 561 F.2d 75, 79 (7th Cir. 1977). Descriptive terms,\nwhich describe the ingredients, characteristics, or qualities of\nan article, are protected only if the holder can establish that\nthe mark has acquired a secondary meaning. U.S. Pat. &\nTrademark Oﬀ. v. Booking.com B. V., 591 U.S. 549, 553 (2020).\nSecondary meaning attaches to marks that have “achieve[d]\nsigniﬁcance ‘in the minds of the public’ as identifying the ap-\nplicant’s goods or services.” Id. (quoting Wal-Mart Stores, Inc.\nv. Samara Bros., Inc., 529 U.S. 205, 211 (2000)). “Holiday Inn,”\nfor example, describes a vacation accommodation, but most\npeople associate the term with one speciﬁc brand. See also Un-\ncommon, LLC v. Spigen, Inc., 926 F.3d 409, 420 (7th Cir. 2019)\n(“5-Hour Energy . . . describes the caﬀeinated shot, but is\nreadily associated by most customers with one maker.” (in-\nternal quotations omitted)).\n\f10 Nos. 24-3317 et al.\n\n The Lanham Act provides a rebuttable presumption of va-\nlidity 5 for successfully registered trademarks, but the pre-\nsumption “evaporates as soon as evidence of invalidity is pre-\nsented.” Ga.-Pac. Consumer Prods. LP v. Kimberly-Clark Corp.,\n647 F.3d 723, 727 (7th Cir. 2011) (quoting Door Sys., Inc. v. Pro–\nLine Door Sys., Inc., 83 F.3d 169, 172 (7th Cir. 1996)). As rele-\nvant here, an incontestable registered mark—one that has been\nin continuous use for ﬁve years after registration—attains an\neven higher status of legal protection. The defendant may\novercome this strong presumption of validity only by show-\ning the incontestable trademark has become generic. § 1065;\nEco Mfg. LLC. v. Honeywell Int’l, Inc., 357 F.3d 649, 651 (7th Cir.\n2003).\n The district court found Iltaco’s “Pizza Puﬀ” mark was\nprotectable because Little Caesars failed to overcome the pre-\nsumption of protection aﬀorded to incontestable marks. Be-\ncause the court committed several errors in its analysis, and\nbecause Iltaco did not otherwise show it was likely to succeed\nin proving its mark is protectable, we reverse this portion of\nthe court’s decision.\n a. Primary Signiﬁcance Test for Genericness\n Whether a registered mark has become a generic term\nturns on the mark’s “primary signiﬁcance” to the relevant\npublic. § 1064(3) (“The primary signiﬁcance of the registered\nmark to the relevant public ... shall be the test for determining\nwhether the registered mark has become the generic name of\n\n\n 5 “The validity of a mark pertains to whether” a given term “is entitled\n\nto protection under trademark law.” Platinum Home, 149 F.3d at 726. If a\nterm that is the subject of a registered trademark is shown to be unprotect-\nable, the mark is invalid. Id.\n\fNos. 24-3317 et al. 11\n\ngoods or services.”); see also Booking.com, 591 U.S. at 556 (ap-\nplying “primary signiﬁcance” test to determine whether mark\nwas generic). The district court neglected to apply the primary\nsigniﬁcance test here. Instead, it found Iltaco was likely to suc-\nceed in showing its mark was protectable because other\nbrands selling similar products are “able to compete eﬀec-\ntively without using the plaintiﬀ’s ‘PIZZA PUFFS’ mark.” The\ndistrict court drew this standard from Ty Inc. v. Softbelly’s Inc.,\nwhere we explained, in dicta, that ﬁnding a trademark has be-\ncome generic is a “fateful step” that we do not ordinarily take\n“until the trademark has gone so far toward becoming the ex-\nclusive descriptor of the product that sellers of competing\nbrands cannot compete eﬀectively without using the name to\ndesignate the product they are selling.” 353 F.3d 528, 531 (7th\nCir. 2003). Because Iltaco provided examples of other brands\nproducing similar products that competed eﬀectively without\nusing “Pizza Puﬀ” (e.g., Hot Pockets, Totino’s Pizza Rolls,\nJimmy Dean Toaster Pop-Ups), the district court found the\nmark had not become the “exclusive descriptor” of the prod-\nuct and therefore was not generic under Ty.\n Our language in Ty may explain one reason why generic\nmarks are not protectable—i.e., because protecting generic\nmarks would stymie competition from sellers of similar prod-\nucts unable to suﬃciently describe their product. But it is not\nthe correct test for genericness. The plain language of the Lan-\nham Act, Supreme Court precedent, and even a previous par-\nagraph in Ty explain that we assess the mark’s primary sig-\nniﬁcance to determine whether it has become generic and\nthus unprotectable under the Lanham Act. See § 1064(3); Book-\ning.com, 591 U.S. at 556; Ty, 353 F.3d at 530–31 (“[T]he legal\ntest of genericness is ‘primary signiﬁcance.’”). A term need\nnot be the exclusive descriptor of a product to become generic.\n\f12 Nos. 24-3317 et al.\n\nRather, a trademark plaintiﬀ “may not prevent [the] defend-\nant from using [a mark] simply because there are other titles\ndefendant could use.” Tech. Publ’g Co. v. Lebhar-Friedman, Inc.,\n729 F.2d 1136, 1141 (7th Cir 1984); 6 see also 2 J. Thomas McCar-\nthy, McCarthy on Trademarks and Unfair Competition § 12:9\n(2006) (“Any product may have many generic designations.\nAny one of those is incapable of trademark signiﬁcance.”). A\ngeneric term is not made less generic by the availability of\nother terms. Tech. Publ’g Co., 729 F.2d at 1141. If we held oth-\nerwise, we would “extend protection to a generic term, a re-\nsult clearly at odds with trademark law.” Id. Because the dis-\ntrict court failed to apply the correct legal test––the primary\nsigniﬁcance test––to determine genericness, the district court\nerred.\n b. Primary Signiﬁcance of “Pizza Puﬀ”\n Viewed under the correct standard, the issue is whether\nthe primary signiﬁcance of “Pizza Puﬀ” to consumers is as a\ngeneric term describing a class of products or a distinctive\nterm indicating association with a particular brand.\n\n\n\n 6 Iltaco attempts to distinguish Technical Publishing Co. because it dealt\n\nwith a magazine title, and “[m]agazines diﬀer from other goods[] in that\ntheir title is a primary means of conveying their content,” so “[c]ourts con-\nfronted with similar trade journal disputes have held consistently that ti-\ntles consisting of the trade name and an indication of the type of publica-\ntion are generic.” 729 F.2d at 1140. But the distinction we drew between\nmagazines and other goods related only to our classiﬁcation of magazine\ntitles as generic or descriptive terms; it did not extend to the test we apply\nto determine whether a mark has become generic. Id. Elsewhere in the\nopinion, we conﬁrmed “[t]he test in determining whether a magazine title\nis generic is no diﬀerent than that applied in determining whether any\nother mark is generic.” Id.\n\fNos. 24-3317 et al. 13\n\nBooking.com, 591 U.S. at 560–61. To determine the primary sig-\nniﬁcance of a term, the court may consider “consumer sur-\nveys, … dictionaries, usage by consumers and competitors,\nand any other source of evidence bearing on how consumers\nperceive a term’s meaning.” Id. at 561 n.6.\n Little Caesars presented extensive evidence to show that\nthe primary signiﬁcance of Iltaco’s incontestable 7 “Pizza Puﬀ”\nmark to consumers is as a generic term. First, Little Caesars\npresented the results of a Teﬂon survey, 8 showing 83.3% of\nconsumers of dough-based, pizza-ingredient-ﬁlled foods per-\nceive “pizza puﬀ” as a common (i.e., generic) term, while only\n12.7% perceive the term as a brand name. The district court\ndismissed this strong evidence of genericness by ﬁnding it\nwas “not conclusive” because in Ty we said, in dicta, that as\nfew as ten percent of consumers associating a mark with an\nowner’s brand could result in consumer confusion. 353 F.3d\nat 531. We cannot accept that ten percent of consumers is a\nrelevant percentage for the genericness test, which focuses on\nthe “primary signiﬁcance” of a product to consumers. “[I]f a\nsurvey showed that 75 percent of the public regard the word\nas generic, then that is its majority usage and its ‘principal sig-\nniﬁcance.’” McCarthy § 12:6. Primary signiﬁcance requires far\n\n\n 7 Iltaco registered its “Pizza Puﬀ” mark in 2009, well over ﬁve years\n\nago, and has used it consistently since, so it has now become incontestable.\nThe parties agree this mark is incontestable.\n 8 Teﬂon surveys are the “most judicially accepted format for testing for\n\ngenericness.” McCarthy § 12:16. In a Teﬂon survey, the survey “begins\nwith a brief lesson explaining the diﬀerence between brand names and\ncommon names. It then asks respondents to classify a series of words, in-\ncluding the trademark at issue, as either brand names or common names.”\nElliott v. Google, Inc., 860 F.3d 1151, 1160 n.7 (9th Cir. 2017).\n\f14 Nos. 24-3317 et al.\n\nmore than ten percent. The court thus erred when it found\nLittle Caesars’ evidence inconclusive based on this inapplica-\nble statement of the law. Viewed properly, survey data show-\ning over 80 percent of relevant consumers perceive “pizza\npuﬀ” as a generic term presents strong evidence of its gener-\nicness. See McCarthy § 12:6.\n Little Caesars also presented several deﬁnitions of “pizza\npuﬀ” drawn from crowd-sourced dictionaries to show the\nterm has acquired a generic meaning. Deﬁnitions.net de-\nscribes a pizza puﬀ as “A dough pouch ﬁlled with the ingre-\ndients of a pizza, such as cheese, pizza sauce, sausage, and\npepperoni, and usually deep fried.” Kiddle Encyclopedia (an\nonline encyclopedia for kids) describes a pizza puﬀ as “A\ndeep-fried dough pocket ﬁlled with cheese, tomato sauce, and\nother pizza ingredients such as sausage or pepperoni.”\nThough the district court did not address these proﬀered\npizza puﬀ deﬁnitions, Iltaco argues on appeal that the crowd-\nsourced dictionary deﬁnitions are unreliable evidence be-\ncause anyone can edit an online crowd-sourced dictionary.\nBut Little Caesars introduced these deﬁnitions to show how\nthe public uses and perceives the term “pizza puﬀ.” Our ge-\nnericness analysis inquires into the primary signiﬁcance of a\nterm to the public, not its unequivocal technical deﬁnition. 9\n\n 9 A number of federal courts have found crowd-sourced deﬁnitions\n\nunreliable and even inadmissible as evidence of a term’s technical deﬁni-\ntion or as the basis for an expert’s testimony. See, e.g., Badasa v. Mukasey,\n540 F.3d 909, 909 (8th Cir. 2008) (noting Wikipedia deﬁnition of an Ethio-\npian travel document was unreliable evidence of party’s immigration sta-\ntus); Advanced Mech. Servs., Inc. v. Auto-Owners Ins. Co., No. 14-CV-388,\n2017 WL 3381366, at 4 (W.D. Ky. Aug. 4, 2017) (ﬁnding expert witness’s\nopinion inadmissible because expert relied on Wikipedia deﬁnition);\n\fNos. 24-3317 et al. 15\n\nCrowd-sourced dictionary deﬁnitions inform that question,\nso they are relevant to our analysis and weigh in favor of ge-\nnericness. Still, the fact that anyone can edit a crowd-sourced\ndictionary deﬁnition bears on the weight of Little Caesars’\ndictionary evidence.\n The district court acknowledged, though did not analyze,\nevidence Little Caesars introduced of third parties using\n“pizza puﬀ” in their USPTO applications and registrations to\nindicate the term has widespread generic use in the industry.\nWe have found third-party registrations probative of a term’s\nwidespread descriptive use where over ﬁfty third-party reg-\nistrations used the same term to describe a similar quality. See\nSpraying Sys. Co. v. Delevan, Inc., 975 F.2d 387, 393 (7th Cir.\n1992) (ﬁnding the suﬃx “JET” descriptive of a hose product\nbased in part on ﬁfty other registrations using “JET” to de-\nscribe similar high-velocity water stream products). Here, the\nﬁve USPTO registrations cited by Little Caesars may not be\ndispositive on their own, but together with consumer survey\n\n\nFleishman v. Cont'l Cas. Co., No. 09 C 414, 2011 WL 5866264, at 4 (N.D. Ill.\nNov. 22, 2011) (ﬁnding inadmissible Wikipedia deﬁnition of “aneurysm”\nas evidence of plaintiﬀ’s injury). Similarly, the Fourth Circuit found a\nSixth Amendment violation in a criminal trial where the jury inde-\npendently obtained and considered a Wikipedia deﬁnition of an element\nof the crime at issue. United States v. Lawson, 677 F.3d 629, 641 (4th Cir.\n2012). But where a crowdsourced deﬁnition is oﬀered to show the signiﬁ-\ncance of that term to members of the public, at least one federal court has\nrelied upon the deﬁnition. See Hawkins v. City of Phila., 571 F. Supp. 3d 455,\n458 (E.D. Pa. 2021) (relying on crowd-sourced dictionary’s deﬁnition of a\nslang term). Thus, while crowd-sourced dictionary deﬁnitions may unre-\nliably evince a term’s correct or technical deﬁnition, they more reliably\nrepresent what a term means to members of the public, which is what the\ngenericness analysis is concerned about.\n\f16 Nos. 24-3317 et al.\n\nand dictionary evidence the USPTO registrations indicate\nother producers of similar products primarily think of “pizza\npuﬀ” as a name for a class of foods rather than a particular\nbrand within that class.\n Iltaco’s arguments to the contrary—that the USPTO de-\nscriptions are unreliable evidence and that they do not apply\nbecause some of the marks using “pizza puﬀ” as a descriptor\nare inactive—do not counter this evidence. Iltaco relies on a\ndistrict court decision stating that USPTO registrations are not\nsuﬃciently reliable for the court to take judicial notice of\nthem, not that they are unreliable evidence altogether. Face-\nbook, Inc. v. Teachbook.com LLC, 819 F. Supp. 2d 764, 772 (N.D.\nIll. 2011). And USPTO registrations using “pizza puﬀ” are\nprobative of how other companies in the food industry use\nthat term even if they are inactive. Spraying Sys., 975 F.2d at\n393 (“[T]hose [registered trademarks] that are not [in current\nuse] can still be probative on the issue of descriptiveness.”).\n Not all of Little Caesars’ evidence of genericness is as com-\npelling. Online recipes for pizza puﬀs have low evidentiary\nvalue because the internet is replete with copycat recipes\nteaching home cooks how to replicate popular, often trade-\nmarked, dishes at home (e.g., recipes for homemade Hot-\nPockets, Pop-Tarts, etc.). 10 Little Caesars also introduced evi-\ndence of menus listing “pizza puﬀ” alongside generic food\n\n\n\n 10 See Illinois Tamale Co. v. El-Greg, Inc., No. 16 C 5387, 2018 WL 1534971\n\nat 5 (N.D. Ill. Mar. 29, 2018) (“There are also thousands of recipes for a\nhomemade version of Hot Pockets, another speciﬁc brand of stuﬀed sand-\nwich. The existence of such recipes does not necessarily suggest that ‘Hot\nPockets’ is a generic term [but rather] that Hot Pockets are a well-known\nbrand that home cooks want to replicate.” (citation modiﬁed)).\n\fNos. 24-3317 et al. 17\n\nitems, indicating the term is used widely in the industry as a\ngeneric term. See Miller Brewing, 561 F.2d at 80 (ﬁnding “light”\ngeneric in part because it is “widely used in the beer indus-\ntry”). These menus provide some support for genericness, but\nunlike the evidence in Miller Brewing showing others in the\nbeer industry used “light” to describe their own distinct prod-\nucts, it is unclear whether the menus Little Caesars cited refer\nto the restaurants’ own products or to Iltaco’s, given Iltaco\nsells its food products to third-party restaurants. Little Cae-\nsars nevertheless contends the menus support genericness be-\ncause placing “pizza puﬀ” alongside generic terms like\n“fries” and “hot dog” must mean “pizza puﬀ” is generic. But\nagain, because Little Caesars did not show 11 the menus refer-\nenced anything but Iltaco’s product, they do not necessarily\nshow others in the industry do not associate “pizza puﬀ” with\nIltaco.\n Even so, the district court ultimately erred by ﬁnding Il-\ntaco was likely to succeed in showing “Pizza Puﬀ” is protect-\nable because the court failed to apply the primary signiﬁcance\ntest and the record did not support its ﬁnal decision. Little\nCaesars’ consumer survey data, dictionary deﬁnitions, and\nUSPTO registrations showing generic usage were suﬃcient to\novercome the presumption of trademark validity, and Iltaco\ndid not show how it could overcome this evidence at trial to\nprove “Pizza Puﬀ” is a protectable mark. Iltaco thus failed to\ncarry its burden of showing a likelihood of success on the\n\n\n 11 Little Caesars must make an aﬃrmative showing because it bears\n\nthe burden of overcoming the presumption of protectability inherent to\nincontestable marks. See Liquid Controls, 802 F.2d at 936 (“The burden is on\nthe defendant to overcome the presumption.”).\n\f18 Nos. 24-3317 et al.\n\nmerits, so the district court should not have granted its motion\nfor preliminary injunction.\n 2. Fair Use Analysis\n Even if “Pizza Puﬀ” is suﬃciently distinctive to merit pro-\ntection under the Lanham Act, Iltaco cannot prevail without\nshowing how it will successfully counter Little Caesars’ fair\nuse defense. A defendant in a trademark infringement case\nmay invoke the “fair use” defense by demonstrating that (1) it\nused the phrase at issue in a non-trademark capacity, (2) the\nphrase is descriptive of its goods and services, and (3) it used\nthe phrase “fairly and in good faith” only to describe its\ngoods. § 1115(b)(4); see also Sands, Taylor & Wood Co. v. Quaker\nOats Co., 978 F.2d 947, 951 (7th Cir. 1992); Packman, 267 F.3d at\n639.\n Little Caesars asserted a fair use defense in response to Il-\ntaco’s preliminary injunction motion, but the district court re-\njected the defense based on the second prong, 12 explaining:\n The defendants have not shown that “PIZZA PUFFS”\n is descriptive of their goods. The defendants[’] product\n looks like a mini-pizza or a pizza muﬃn or a pizza cup-\n cake or a pizza bite. It is not apparent what part of the\n defendants’ product is a puﬀ, which means that the\n mark is not descriptive of the defendants’ goods.\n The district court erred in reaching this conclusion be-\ncause it misapplied the relevant legal standard to determine\nwhether “Pizza Puﬀ” is descriptive of Little Caesars’ product.\nThe district court mistakenly required Little Caesars’ product\n\n\n 12 Because the district court did not address the ﬁrst or third prongs\n\nof fair use, we do not address them here.\n\fNos. 24-3317 et al. 19\n\nto be a pizza puﬀ for the term to apply descriptively. In fact,\nthe term need only refer to a characteristic of the product.\nF. Corp., 903 F.2d at 444. We identiﬁed a similar problem in\nQuaker Oats, where the district court erred by requiring a de-\nscriptive term to “bring to mind the product in question.” 978\nF.2d at 952. We explained “it is not necessary that a descrip-\ntive term depict the [product] itself, but only that the term re-\nfer to a characteristic of the [product].” Id. (quoting F. Corp., 903\nF.2d at 444). The district court should have considered\nwhether “Pizza Puﬀ” fairly described a characteristic or qual-\nity of Little Caesars’ Crazy Puﬀs product, not whether Crazy\nPuﬀs are pizza puﬀs.\n Under the correct test, the district court’s determination\nthat “Pizza Puﬀ” is not descriptive falls short. A Little Caesars\nrepresentative testiﬁed that “Crazy Puﬀs” are “light and airy\nmuﬃns” that are “puﬀy.” No one disputes that Crazy Puﬀs\nare ﬁlled with pizza ingredients like cheese, tomato sauce,\nmeat, and vegetables. This evidence fairly shows that “Pizza\nPuﬀ” describes a Crazy Puﬀ, which is a puﬀy and airy muﬃn\ncontaining pizza ingredients. And “Pizza Puﬀ” appears as\npart of the phrase “4 Hand-Held Pizza Puﬀs,” which is clearly\ndescribing the quantity, size, and type of food customers can\nexpect when they purchase a Crazy Puﬀ. The district court\ndid not consider this evidence or explain how Iltaco could\ncounter it at trial. Because the district court applied the wrong\nstandard, the district court abused its discretion in granting\nthe preliminary injunction for “Pizza Puﬀ.” See Lawson Prods.,\n782 F.2d at 1437 (“[A] factual or legal error may alone be suf-\nﬁcient to establish that the court ‘abused its discretion’ in\nmaking its ﬁnal determination.”).\n\f20 Nos. 24-3317 et al.\n\nB. “Crazy Puﬀs” and “Puﬀ”\n The district court found Iltaco failed to meet its burden\nwith respect to Little Caesars’ use of its “Crazy Puﬀs” mark\nbecause Iltaco did not show there was a likelihood of confu-\nsion between Little Caesars’ “Crazy Puﬀs” mark and Iltaco’s\n“Pizza Puﬀ” or “Puﬀ” marks. The court did not clearly err in\neither determination, so we aﬃrm its decision regarding both\nmarks.\n The district court correctly rejected Iltaco’s suggestion that\n“Crazy Puﬀs” and “Pizza Puﬀ” were confusingly similar be-\ncause both contain the word “Puﬀ.” When evaluating the like-\nlihood of confusion between marks, “we must keep in mind\nthat ‘[t]he commercial impression of a trade-mark is derived\nfrom it as a whole, not from its elements separated and con-\nsidered in detail.’” Grubhub, 80 F.4th at 848 (quoting Est. of\nP.D. Beckwith, Inc. v. Comm'r of Pats., 252 U.S. 538, 545–46\n(1920)). Thus, we cannot look at “Puﬀ” (from “Crazy Puﬀs”)\nin isolation and ﬁnd it confusingly similar to “Puﬀ” in Iltaco’s\n“Pizza Puﬀ” name. We must consider the “Crazy Puﬀs” mark\nin its entirety, as the district court rightly explained.\n Viewing the “Crazy Puﬀs” mark as a whole, the district\ncourt did not err in ﬁnding no likelihood of confusion with\n“Pizza Puﬀ.” The court found the two terms are signiﬁcantly\ndiﬀerent because Iltaco’s mark denotes the ingredients found\nin the product while Little Caesars’ mark uses “Crazy” to tie\nits product to its own family of Crazy marks. Iltaco’s mark\ndescribes what a consumer can expect to ﬁnd inside the puﬀ,\nwhile Little Caesars’ mark designates its brand. Though the\ncourt found other likelihood-of-confusion factors may favor\nIltaco, it held “the diﬀerence in the marks’ overall impression\n\fNos. 24-3317 et al. 21\n\nprecludes ﬁnding a likelihood of success by the plaintiﬀ on\nlikelihood of confusion.”\n A district court has broad “ﬂexibility to determine what\n[likelihood-of-confusion] factors are most critical in a case.”\nTy, Inc. v. Jones Grp., Inc., 237 F.3d 891, 901 (7th Cir. 2001). And\nbecause the similarity of the marks is one of the most im-\nportant considerations, a district court does not abuse its dis-\ncretion by ﬁnding no likelihood of confusion based on dissim-\nilar marks even when other factors weigh in favor of confu-\nsion. Eli Lilly & Co. v. Nat. Answers, Inc., 233 F.3d 456, 462 (7th\nCir. 2000). Here, the district court made a reasoned determi-\nnation that the two marks were not similar and did not abuse\nits discretion in weighing the similarity factor heavily to ﬁnd\nno likelihood of success in showing likelihood of confusion.\n * \n Because Iltaco did not show it is likely to succeed in prov-\ning that “Pizza Puﬀ” is protectable or rebutting Little Caesars’\nfair use defense at trial, Iltaco has not established a likelihood\nof success on the merits. Accordingly, we do not proceed to\nthe harms-balancing or public interest steps of the prelimi-\nnary injunction analysis. See Grubhub, 80 F.4th at 844 (“[Only]\n[u]pon a showing of [likelihood of success on the merits], the\ncourt weighs the harm of denying an injunction.”).\n The district court abused its discretion by granting the pre-\nliminary injunction as to “Pizza Puﬀ,” but did not abuse its\ndiscretion in denying the injunction regarding “Crazy Puﬀs”\nor “Puﬀ.”\n The judgment of the district court is\n AFFIRMED IN PART AND REVERSED IN PART.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11242194/", "author_raw": "ST. EVE, Circuit Judge"}, {"author": "ST. EVE, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNos. 24-3317, 25-1072, 25-1076 & 25-1112\nILLINOIS TAMALE COMPANY, INC., doing business as ILTACO,\n Plaintiﬀ-Appellee/Cross-Appellant,\n v.\n\nLC TRADEMARKS, INC. and LITTLE CAESAR ENTERPRISES, INC.,\n Defendants-Appellants/Cross-Appellees.\n ____________________\n\n Appeals from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 1:24-cv-05210 — Jeremy C. Daniel, Judge.\n ____________________\n\n ARGUED NOVEMBER 14, 2025 — DECIDED JANUARY 16, 2026\n ____________________\n\n Before SCUDDER, ST. EVE, and JACKSON-AKIWUMI, Circuit\nJudges.\n ST. EVE, Circuit Judge. Illinois Tamale Company, Inc. (“Il-\ntaco”), a Chicago-based food company, brought this trade-\nmark infringement action against LC Trademarks, Inc. and\nLittle Caesar Enterprises, Inc. (collectively “Little Caesars”),\nbased on Little Caesars’ advertising for its “Crazy Puﬀs” food\nproduct. Iltaco claimed Little Caesars’ Crazy Puﬀs product\nand advertising caused a substantial likelihood of confusion\n\f2 Nos. 24-3317 et al.\n\nwith Iltaco’s trademark-protected “Pizza Puﬀ” product. Iltaco\nalso moved for a preliminary injunction to enjoin Little Cae-\nsars from using “Crazy Puﬀ,” “Pizza Puﬀ,” and “Puﬀ” in its\nproduct names and advertising. The district court denied the\npreliminary injunction as to “Crazy Puﬀ” and “Puﬀ,” ﬁnding\nIltaco failed to show suﬃcient likelihood of success in its\ntrademark infringement action regarding those terms, but\ngranted the preliminary injunction as to “Pizza Puﬀ.” Because\nthe district court erred in concluding that Iltaco showed it was\nlikely to succeed on the merits of its trademark infringement\nclaim pertaining to “Pizza Puﬀ,” we reverse that portion of its\ndecision. We aﬃrm the district court’s decision as to “Crazy\nPuﬀ” and “Puﬀ.”\n I. Background\nA. Factual Background\n Iltaco is a Chicago-based food company founded in 1927.\nIn 1976, Iltaco began selling its pizza puﬀ product, which is\nsimilar to a calzone but made from a ﬂour tortilla wrapped\naround pizza toppings and can be fried or baked. Iltaco now\nsells its pizza puﬀs nationwide and has expanded its line of\nstuﬀed sandwich products to include a wide range of ingre-\ndients. Iltaco’s list of registered trademarks includes the\n“Pizza Puff,” “Gyro Puff,” “Ham Breakfast Puff,” “Sausage\nBreakfast Puff,” and “Spinach & Cheese Puff.” Specifically, it\nregistered its “Pizza Puff” trademark on May 26, 2009. It also\nhas a registered trademark for “Puff” as of May 3, 2022. Iltaco\nadvertises its stuffed sandwich products under the “Pizza\nPuff” and “Puff” trademarks.\n Little Caesars is a large chain of pizza restaurants founded\nin the United States with restaurant franchises worldwide. In\n\fNos. 24-3317 et al. 3\n\nMarch 2024, Little Caesars launched its new Crazy Puffs\nproduct in its restaurants throughout the country. Crazy\nPuffs are small, baked pizza dough cups filled with pizza in-\ngredients and topped with cheese. Crazy Puffs join Little Cae-\nsars’ numerous other “Crazy” marks, which the pizza chain\nhas used extensively in its marketing since the 1980s. Little\nCaesars owns numerous federal trademark registrations for\nits various “Crazy” products, and in May 2024 finalized its\nfederal registration for the “Crazy Puffs” mark. 1 Before final-\nizing Little Caesars’ registration, an examining attorney with\nthe U.S. Patent and Trademark Office (“USPTO”) searched\nthe database of registered and pending marks and found no\nlikelihood of confusion between “Crazy Puffs” and any prior\nregistered or pending marks of third parties, including Iltaco.\n Since launching Crazy Puffs, Little Caesars has marketed\nits puffs heavily using its “Little Caesars” trade name and the\nclassic Little Caesars trade dress—the Roman Character logo,\n“Hot-N-Ready” tagline, “Crazy” mark, and bright orange col-\noring. Crazy Puffs marketing materials include a line reading\n“4 Hand-Held Pizza Puffs,” which appears in small print di-\nrectly below “Crazy Puffs.” The phrase “Pizza Puffs” appears\nas part of “4 Hand-Held Pizza Puffs,” which always appears\nin conjunction with the “Crazy Puffs” mark.\n\n\n\n\n 1 Little Caesars disclaimed “Puﬀs” as part of its trademark in compli-\n\nance with a USPTO examining attorney’s advice, meaning Little Caesars\nclaims no rights in that word.\n\f4 Nos. 24-3317 et al.\n\n\n\n\n Little Caesars Crazy Puﬀs Advertisement\n Little Caesars sells Crazy Puffs exclusively through its res-\ntaurants, where customers can purchase them through tradi-\ntional carryout or delivery channels. Little Caesars does not\nsell Crazy Puffs in grocery stores, convenience stores, or\nthird-party restaurants.\nB. Procedural Background\n The present dispute began in April 2024 when Iltaco sent\nLittle Caesars a cease-and-desist letter claiming “Crazy Puﬀs”\nand “4 Hand-Held Pizza Puﬀs” infringed Iltaco’s trademark\nrights in its “Pizza Puﬀ” and “Puﬀ” marks. Little Caesars dis-\nputed the merits of Iltaco’s claims and continued to use both\n“Crazy Puﬀs” and “4 Hand-Held Pizza Puﬀs.”\n On June 21, 2024, Iltaco brought a four count complaint\nagainst Little Caesars, asserting claims under Section 32 of the\nLanham Act, 15 U.S.C. § 1114, for trademark infringement\n(Count I); Section 43(a) of the Lanham Act, § 1125, for false\ndesignation of origin (Count II); the Illinois Uniform Decep-\ntive Trade Practices Act, 815 ILCS 510/1 (Count III); and\n\fNos. 24-3317 et al. 5\n\ncommon law unfair competition (Count IV). On the same day,\nIltaco ﬁled its motion for a preliminary injunction, seeking to\nenjoin Little Caesars from using “Crazy Puﬀs,” “Pizza Puﬀ,”\nand “Puﬀ” in selling its product. After holding an evidentiary\nhearing, the district court granted Iltaco’s motion as to “Pizza\nPuﬀ” and denied it as to “Crazy Puﬀs” and “Puﬀ.” Little Cae-\nsars now appeals the district court’s decision enjoining its use\nof “Pizza Puﬀ,” 2 and Iltaco cross-appeals the district court’s\ndenial of its injunction motion regarding “Crazy Puﬀs” and\n“Puﬀ.”\n II. Legal Standard\n “We review the district court's denial of the motion for a\npreliminary injunction for an abuse of discretion, viewing its\nlegal conclusions de novo, and ﬁndings of fact for clear error.”\nMinocqua Brewing Co. v. Hess, 160 F.4th 849, 851 (7th Cir. 2025)\n(citing Richwine v. Matuszak, 148 F.4th 942, 952 (7th Cir. 2025)).\n A district court may grant a preliminary injunction where\nthe “movant shows that it is likely to succeed on the merits of\n\n\n 2 Little Caesars also purports to appeal the district court’s decision re-\n\ngarding its use of “Puﬀ,” arguing that the district court improperly found\n“Puﬀ” is a protectable mark rather than a generic term. The district court\ndid ﬁnd “Puﬀ” protectable, but also found no likelihood of confusion\nstemming from Little Caesars’ use of “Puﬀ” and accordingly denied the\nmotion for preliminary injunction as to “Puﬀ.” Because the district court\nultimately ruled in Little Caesars’ favor as to “Puﬀ,” Little Caesars cannot\nappeal this favorable decision. See Bd. Of Trs. Of Univ. of Ill. v. Organon\nTeknika Corp. LLC, 614 F.3d 372, 374 (7th Cir. 2010); United States v. Accra\nPac, Inc., 173 F.3d 630, 632 (7th Cir. 1999) (“[A] litigant may not appeal\nfrom unfavorable statements in a judicial opinion, if the judgment was fa-\nvorable.”).\n\f6 Nos. 24-3317 et al.\n\nits claims and that traditional legal remedies would be inade-\nquate, such that it would suﬀer irreparable harm without in-\njunctive relief.” Grubhub Inc. v. Relish Labs LLC, 80 F.4th 835,\n843 (7th Cir. 2023) (citing Life Spine, Inc. v. Aegis Spine, Inc., 8\nF.4th 531, 539 (7th Cir. 2021)). Trademark law affords a rebut-\ntable presumption of irreparable harm to movants who show\nthey are likely to succeed on the merits of their trademark in-\nfringement claims. Id.; § 1116(a). If the movant shows it is\nlikely to succeed on the merits, the court next “weighs the\nharm of denying an injunction to the movant against the harm\nof granting an injunction to the nonmovant.” Grubhub, 80\nF.4th at 844. The court also considers the public interest in\ngranting versus denying the preliminary injunction request.\nLife Spine, 8 F.4th at 539.\n “[A]n applicant for preliminary relief bears a signiﬁcant\nburden,” Ill. Republican Party v. Pritzker, 973 F.3d 760, 763 (7th\nCir. 2020), and must show more than “a mere possibility of\nsuccess” on the merits to prevail, Life Spine, Inc., 8 F.4th at 540.\nIt is not enough, as Iltaco asserts, to show only a “better than\nnegligible” chance of succeeding on the merits. 3 Nken v.\nHolder, 556 U.S. 418, 434 (2009). Of course, the movant “need\nnot show that it deﬁnitely will win the case,” but it “must\n\n\n 3 It is diﬃcult to determine which standard the district court applied.\n\nIf the court applied the “better than negligible standard,” it abused its dis-\ncretion. See Lawson Prods., Inc. v. Avnet, Inc., 782 F.2d 1429, 1437 (7th Cir.\n1986) (“A district judge may abuse his discretion . . . [by applying] an in-\ncorrect preliminary injunction standard.”); see also Arwa Chiropractic, P.C.\nv. Med-Care Diabetic & Med. Supplies, Inc., 961 F.3d 942, 949 (7th Cir. 2020)\n(“A court abuses its discretion when it fails to consider a motion under the\nproper legal standard.”). Even if it applied the correct standard, however,\nthe district court committed other legal errors that require reversal in part.\n\fNos. 24-3317 et al. 7\n\ndemonstrate at a minimum how it proposes to prove the key\nelements of its case.” Grubhub, 80 F.4th at 844.\n III. Discussion\n Trademark law serves the dual purposes of protecting cus-\ntomers’ desires to make informed purchasing decisions based\non familiar, trustworthy marks, and protecting trademark\nowners against misappropriation of marks in which they\nhave invested signiﬁcant time, energy, and resources. See id.\n The Trademark Act of 1946, known as the Lanham Act,\ncodiﬁed at 15 U.S.C. §§ 1051–1141n, governs our analysis.\n“The Lanham Act allows those who employ trade or service\nmarks to register them for exclusive use in commerce.” Sport-\nFuel, Inc. v. PepsiCo, Inc., 932 F.3d 589, 595 (7th Cir. 2019) (cit-\ning KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543\nU.S. 111, 117 (2004)). Under the Lanham Act, a “holder of a\nregistered mark … has a civil action against anyone employ-\ning an imitation of it in commerce when ‘such use is likely to\ncause confusion, or to cause mistake, or to deceive.’” KP Per-\nmanent Make-Up, 543 U.S. at 117 (quoting § 1114(1)(a)). To pre-\nvail on such a claim, the plaintiﬀ must establish that “(1) its\nmark is protectable and (2) the defendant’s use of the mark is\nlikely to cause confusion among consumers.” CAE, Inc. v.\nClean Air Eng’g, Inc., 267 F.3d 660, 673–74 (7th Cir. 2001).\n The Lanham Act also provides aﬃrmative defenses to\ncounter a plaintiﬀ’s claims, including the “fair use” defense.\nSee § 1115(b). The fair use defense “allows individuals to use\notherwise trademarked language in a descriptive sense.”\nSportFuel, 932 F.3d at 595 (citing Packman v. Chi. Trib. Co., 267\nF.3d 628, 639 (7th Cir. 2001)). To raise the fair use defense suc-\ncessfully, a defendant must show that (1) it did not use the\n\f8 Nos. 24-3317 et al.\n\nmark at issue as a trademark, (2) the use is descriptive of its\ngoods, and (3) it used the mark fairly and in good faith.\nSorensen v. WD-40 Co., 792 F.3d 712, 722 (7th Cir. 2015) (citing\n§ 1115(b)(4)); Packman, 267 F.3d at 639.\nA. “Pizza Puﬀ”\n The district court found Iltaco was likely to succeed on the\nmerits of its trademark infringement action for its “Pizza\nPuﬀ” mark. In doing so, the court found Iltaco was likely to\nsucceed in showing “Pizza Puﬀ” was a protectable mark, that\nno fair use defense applied, and that there was substantial\nlikelihood of confusion between both parties’ use of “Pizza\nPuﬀ.” We address the district court’s ﬁndings regarding pro-\ntectability and fair use, 4 and ultimately reverse the prelimi-\nnary injunction on Little Caesars’ use of “Pizza Puﬀ” because\nIltaco failed to meet its burden of establishing a suﬃcient like-\nlihood of success on the merits of its claim.\n 1. Protectability Analysis\n To succeed on a trademark infringement action, the mark\nor marks at issue must be protectable under the Lanham Act\nin the ﬁrst place. Whether a mark is entitled to protection de-\npends upon where it falls on a spectrum of increasing distinc-\ntiveness from (1) generic, (2) descriptive, (3) suggestive,\n(4) arbitrary, or (5) fanciful. Platinum Home Mortg. Corp. v.\nPlatinum Fin. Grp., 149 F.3d 722, 727 (7th Cir. 1998); Packman,\n267 F.3d at 638. We review the district court’s factual\n\n\n\n 4 We are skeptical whether the district court made suﬃcient factual\n\nﬁndings to support its likelihood of confusion analysis. In any event, we\nneed not address likelihood of confusion because we are reversing on\nother grounds.\n\fNos. 24-3317 et al. 9\n\ndetermination of where a mark falls along this spectrum for\nclear error. Mil-Mar Shoe Co. v. Shonac Corp., 75 F.3d 1153,\n1156–57 (7th Cir. 1996) (“[P]lacement of a mark in a particular\ncategory is subject to review for clear error, and thus may be\nset aside only if, after considering all the evidence, we are ‘left\nwith the deﬁnite and ﬁrm conviction that a mistake has been\ncommitted.’” (quoting F. Corp. of N. Am. v. F., Ltd., 903 F.2d\n434, 438 (7th Cir.1990))).\n A trademark infringement action must fail if the mark is\ngeneric and will usually fail if the mark is descriptive. Generic\nterms, which are the terms “commonly used as the name of a\nkind of goods,” Liquid Controls Corp. v. Liquid Control Corp.,\n802 F.2d 934, 936 (7th Cir. 1986), may not be trademark pro-\ntected “under any circumstances,” Miller Brewing Co. v. G.\nHeileman Co., 561 F.2d 75, 79 (7th Cir. 1977). Descriptive terms,\nwhich describe the ingredients, characteristics, or qualities of\nan article, are protected only if the holder can establish that\nthe mark has acquired a secondary meaning. U.S. Pat. &\nTrademark Oﬀ. v. Booking.com B. V., 591 U.S. 549, 553 (2020).\nSecondary meaning attaches to marks that have “achieve[d]\nsigniﬁcance ‘in the minds of the public’ as identifying the ap-\nplicant’s goods or services.” Id. (quoting Wal-Mart Stores, Inc.\nv. Samara Bros., Inc., 529 U.S. 205, 211 (2000)). “Holiday Inn,”\nfor example, describes a vacation accommodation, but most\npeople associate the term with one speciﬁc brand. See also Un-\ncommon, LLC v. Spigen, Inc., 926 F.3d 409, 420 (7th Cir. 2019)\n(“5-Hour Energy . . . describes the caﬀeinated shot, but is\nreadily associated by most customers with one maker.” (in-\nternal quotations omitted)).\n\f10 Nos. 24-3317 et al.\n\n The Lanham Act provides a rebuttable presumption of va-\nlidity 5 for successfully registered trademarks, but the pre-\nsumption “evaporates as soon as evidence of invalidity is pre-\nsented.” Ga.-Pac. Consumer Prods. LP v. Kimberly-Clark Corp.,\n647 F.3d 723, 727 (7th Cir. 2011) (quoting Door Sys., Inc. v. Pro–\nLine Door Sys., Inc., 83 F.3d 169, 172 (7th Cir. 1996)). As rele-\nvant here, an incontestable registered mark—one that has been\nin continuous use for ﬁve years after registration—attains an\neven higher status of legal protection. The defendant may\novercome this strong presumption of validity only by show-\ning the incontestable trademark has become generic. § 1065;\nEco Mfg. LLC. v. Honeywell Int’l, Inc., 357 F.3d 649, 651 (7th Cir.\n2003).\n The district court found Iltaco’s “Pizza Puﬀ” mark was\nprotectable because Little Caesars failed to overcome the pre-\nsumption of protection aﬀorded to incontestable marks. Be-\ncause the court committed several errors in its analysis, and\nbecause Iltaco did not otherwise show it was likely to succeed\nin proving its mark is protectable, we reverse this portion of\nthe court’s decision.\n a. Primary Signiﬁcance Test for Genericness\n Whether a registered mark has become a generic term\nturns on the mark’s “primary signiﬁcance” to the relevant\npublic. § 1064(3) (“The primary signiﬁcance of the registered\nmark to the relevant public ... shall be the test for determining\nwhether the registered mark has become the generic name of\n\n\n 5 “The validity of a mark pertains to whether” a given term “is entitled\n\nto protection under trademark law.” Platinum Home, 149 F.3d at 726. If a\nterm that is the subject of a registered trademark is shown to be unprotect-\nable, the mark is invalid. Id.\n\fNos. 24-3317 et al. 11\n\ngoods or services.”); see also Booking.com, 591 U.S. at 556 (ap-\nplying “primary signiﬁcance” test to determine whether mark\nwas generic). The district court neglected to apply the primary\nsigniﬁcance test here. Instead, it found Iltaco was likely to suc-\nceed in showing its mark was protectable because other\nbrands selling similar products are “able to compete eﬀec-\ntively without using the plaintiﬀ’s ‘PIZZA PUFFS’ mark.” The\ndistrict court drew this standard from Ty Inc. v. Softbelly’s Inc.,\nwhere we explained, in dicta, that ﬁnding a trademark has be-\ncome generic is a “fateful step” that we do not ordinarily take\n“until the trademark has gone so far toward becoming the ex-\nclusive descriptor of the product that sellers of competing\nbrands cannot compete eﬀectively without using the name to\ndesignate the product they are selling.” 353 F.3d 528, 531 (7th\nCir. 2003). Because Iltaco provided examples of other brands\nproducing similar products that competed eﬀectively without\nusing “Pizza Puﬀ” (e.g., Hot Pockets, Totino’s Pizza Rolls,\nJimmy Dean Toaster Pop-Ups), the district court found the\nmark had not become the “exclusive descriptor” of the prod-\nuct and therefore was not generic under Ty.\n Our language in Ty may explain one reason why generic\nmarks are not protectable—i.e., because protecting generic\nmarks would stymie competition from sellers of similar prod-\nucts unable to suﬃciently describe their product. But it is not\nthe correct test for genericness. The plain language of the Lan-\nham Act, Supreme Court precedent, and even a previous par-\nagraph in Ty explain that we assess the mark’s primary sig-\nniﬁcance to determine whether it has become generic and\nthus unprotectable under the Lanham Act. See § 1064(3); Book-\ning.com, 591 U.S. at 556; Ty, 353 F.3d at 530–31 (“[T]he legal\ntest of genericness is ‘primary signiﬁcance.’”). A term need\nnot be the exclusive descriptor of a product to become generic.\n\f12 Nos. 24-3317 et al.\n\nRather, a trademark plaintiﬀ “may not prevent [the] defend-\nant from using [a mark] simply because there are other titles\ndefendant could use.” Tech. Publ’g Co. v. Lebhar-Friedman, Inc.,\n729 F.2d 1136, 1141 (7th Cir 1984); 6 see also 2 J. Thomas McCar-\nthy, McCarthy on Trademarks and Unfair Competition § 12:9\n(2006) (“Any product may have many generic designations.\nAny one of those is incapable of trademark signiﬁcance.”). A\ngeneric term is not made less generic by the availability of\nother terms. Tech. Publ’g Co., 729 F.2d at 1141. If we held oth-\nerwise, we would “extend protection to a generic term, a re-\nsult clearly at odds with trademark law.” Id. Because the dis-\ntrict court failed to apply the correct legal test––the primary\nsigniﬁcance test––to determine genericness, the district court\nerred.\n b. Primary Signiﬁcance of “Pizza Puﬀ”\n Viewed under the correct standard, the issue is whether\nthe primary signiﬁcance of “Pizza Puﬀ” to consumers is as a\ngeneric term describing a class of products or a distinctive\nterm indicating association with a particular brand.\n\n\n\n 6 Iltaco attempts to distinguish Technical Publishing Co. because it dealt\n\nwith a magazine title, and “[m]agazines diﬀer from other goods[] in that\ntheir title is a primary means of conveying their content,” so “[c]ourts con-\nfronted with similar trade journal disputes have held consistently that ti-\ntles consisting of the trade name and an indication of the type of publica-\ntion are generic.” 729 F.2d at 1140. But the distinction we drew between\nmagazines and other goods related only to our classiﬁcation of magazine\ntitles as generic or descriptive terms; it did not extend to the test we apply\nto determine whether a mark has become generic. Id. Elsewhere in the\nopinion, we conﬁrmed “[t]he test in determining whether a magazine title\nis generic is no diﬀerent than that applied in determining whether any\nother mark is generic.” Id.\n\fNos. 24-3317 et al. 13\n\nBooking.com, 591 U.S. at 560–61. To determine the primary sig-\nniﬁcance of a term, the court may consider “consumer sur-\nveys, … dictionaries, usage by consumers and competitors,\nand any other source of evidence bearing on how consumers\nperceive a term’s meaning.” Id. at 561 n.6.\n Little Caesars presented extensive evidence to show that\nthe primary signiﬁcance of Iltaco’s incontestable 7 “Pizza Puﬀ”\nmark to consumers is as a generic term. First, Little Caesars\npresented the results of a Teﬂon survey, 8 showing 83.3% of\nconsumers of dough-based, pizza-ingredient-ﬁlled foods per-\nceive “pizza puﬀ” as a common (i.e., generic) term, while only\n12.7% perceive the term as a brand name. The district court\ndismissed this strong evidence of genericness by ﬁnding it\nwas “not conclusive” because in Ty we said, in dicta, that as\nfew as ten percent of consumers associating a mark with an\nowner’s brand could result in consumer confusion. 353 F.3d\nat 531. We cannot accept that ten percent of consumers is a\nrelevant percentage for the genericness test, which focuses on\nthe “primary signiﬁcance” of a product to consumers. “[I]f a\nsurvey showed that 75 percent of the public regard the word\nas generic, then that is its majority usage and its ‘principal sig-\nniﬁcance.’” McCarthy § 12:6. Primary signiﬁcance requires far\n\n\n 7 Iltaco registered its “Pizza Puﬀ” mark in 2009, well over ﬁve years\n\nago, and has used it consistently since, so it has now become incontestable.\nThe parties agree this mark is incontestable.\n 8 Teﬂon surveys are the “most judicially accepted format for testing for\n\ngenericness.” McCarthy § 12:16. In a Teﬂon survey, the survey “begins\nwith a brief lesson explaining the diﬀerence between brand names and\ncommon names. It then asks respondents to classify a series of words, in-\ncluding the trademark at issue, as either brand names or common names.”\nElliott v. Google, Inc., 860 F.3d 1151, 1160 n.7 (9th Cir. 2017).\n\f14 Nos. 24-3317 et al.\n\nmore than ten percent. The court thus erred when it found\nLittle Caesars’ evidence inconclusive based on this inapplica-\nble statement of the law. Viewed properly, survey data show-\ning over 80 percent of relevant consumers perceive “pizza\npuﬀ” as a generic term presents strong evidence of its gener-\nicness. See McCarthy § 12:6.\n Little Caesars also presented several deﬁnitions of “pizza\npuﬀ” drawn from crowd-sourced dictionaries to show the\nterm has acquired a generic meaning. Deﬁnitions.net de-\nscribes a pizza puﬀ as “A dough pouch ﬁlled with the ingre-\ndients of a pizza, such as cheese, pizza sauce, sausage, and\npepperoni, and usually deep fried.” Kiddle Encyclopedia (an\nonline encyclopedia for kids) describes a pizza puﬀ as “A\ndeep-fried dough pocket ﬁlled with cheese, tomato sauce, and\nother pizza ingredients such as sausage or pepperoni.”\nThough the district court did not address these proﬀered\npizza puﬀ deﬁnitions, Iltaco argues on appeal that the crowd-\nsourced dictionary deﬁnitions are unreliable evidence be-\ncause anyone can edit an online crowd-sourced dictionary.\nBut Little Caesars introduced these deﬁnitions to show how\nthe public uses and perceives the term “pizza puﬀ.” Our ge-\nnericness analysis inquires into the primary signiﬁcance of a\nterm to the public, not its unequivocal technical deﬁnition. 9\n\n 9 A number of federal courts have found crowd-sourced deﬁnitions\n\nunreliable and even inadmissible as evidence of a term’s technical deﬁni-\ntion or as the basis for an expert’s testimony. See, e.g., Badasa v. Mukasey,\n540 F.3d 909, 909 (8th Cir. 2008) (noting Wikipedia deﬁnition of an Ethio-\npian travel document was unreliable evidence of party’s immigration sta-\ntus); Advanced Mech. Servs., Inc. v. Auto-Owners Ins. Co., No. 14-CV-388,\n2017 WL 3381366, at 4 (W.D. Ky. Aug. 4, 2017) (ﬁnding expert witness’s\nopinion inadmissible because expert relied on Wikipedia deﬁnition);\n\fNos. 24-3317 et al. 15\n\nCrowd-sourced dictionary deﬁnitions inform that question,\nso they are relevant to our analysis and weigh in favor of ge-\nnericness. Still, the fact that anyone can edit a crowd-sourced\ndictionary deﬁnition bears on the weight of Little Caesars’\ndictionary evidence.\n The district court acknowledged, though did not analyze,\nevidence Little Caesars introduced of third parties using\n“pizza puﬀ” in their USPTO applications and registrations to\nindicate the term has widespread generic use in the industry.\nWe have found third-party registrations probative of a term’s\nwidespread descriptive use where over ﬁfty third-party reg-\nistrations used the same term to describe a similar quality. See\nSpraying Sys. Co. v. Delevan, Inc., 975 F.2d 387, 393 (7th Cir.\n1992) (ﬁnding the suﬃx “JET” descriptive of a hose product\nbased in part on ﬁfty other registrations using “JET” to de-\nscribe similar high-velocity water stream products). Here, the\nﬁve USPTO registrations cited by Little Caesars may not be\ndispositive on their own, but together with consumer survey\n\n\nFleishman v. Cont'l Cas. Co., No. 09 C 414, 2011 WL 5866264, at 4 (N.D. Ill.\nNov. 22, 2011) (ﬁnding inadmissible Wikipedia deﬁnition of “aneurysm”\nas evidence of plaintiﬀ’s injury). Similarly, the Fourth Circuit found a\nSixth Amendment violation in a criminal trial where the jury inde-\npendently obtained and considered a Wikipedia deﬁnition of an element\nof the crime at issue. United States v. Lawson, 677 F.3d 629, 641 (4th Cir.\n2012). But where a crowdsourced deﬁnition is oﬀered to show the signiﬁ-\ncance of that term to members of the public, at least one federal court has\nrelied upon the deﬁnition. See Hawkins v. City of Phila., 571 F. Supp. 3d 455,\n458 (E.D. Pa. 2021) (relying on crowd-sourced dictionary’s deﬁnition of a\nslang term). Thus, while crowd-sourced dictionary deﬁnitions may unre-\nliably evince a term’s correct or technical deﬁnition, they more reliably\nrepresent what a term means to members of the public, which is what the\ngenericness analysis is concerned about.\n\f16 Nos. 24-3317 et al.\n\nand dictionary evidence the USPTO registrations indicate\nother producers of similar products primarily think of “pizza\npuﬀ” as a name for a class of foods rather than a particular\nbrand within that class.\n Iltaco’s arguments to the contrary—that the USPTO de-\nscriptions are unreliable evidence and that they do not apply\nbecause some of the marks using “pizza puﬀ” as a descriptor\nare inactive—do not counter this evidence. Iltaco relies on a\ndistrict court decision stating that USPTO registrations are not\nsuﬃciently reliable for the court to take judicial notice of\nthem, not that they are unreliable evidence altogether. Face-\nbook, Inc. v. Teachbook.com LLC, 819 F. Supp. 2d 764, 772 (N.D.\nIll. 2011). And USPTO registrations using “pizza puﬀ” are\nprobative of how other companies in the food industry use\nthat term even if they are inactive. Spraying Sys., 975 F.2d at\n393 (“[T]hose [registered trademarks] that are not [in current\nuse] can still be probative on the issue of descriptiveness.”).\n Not all of Little Caesars’ evidence of genericness is as com-\npelling. Online recipes for pizza puﬀs have low evidentiary\nvalue because the internet is replete with copycat recipes\nteaching home cooks how to replicate popular, often trade-\nmarked, dishes at home (e.g., recipes for homemade Hot-\nPockets, Pop-Tarts, etc.). 10 Little Caesars also introduced evi-\ndence of menus listing “pizza puﬀ” alongside generic food\n\n\n\n 10 See Illinois Tamale Co. v. El-Greg, Inc., No. 16 C 5387, 2018 WL 1534971\n\nat 5 (N.D. Ill. Mar. 29, 2018) (“There are also thousands of recipes for a\nhomemade version of Hot Pockets, another speciﬁc brand of stuﬀed sand-\nwich. The existence of such recipes does not necessarily suggest that ‘Hot\nPockets’ is a generic term [but rather] that Hot Pockets are a well-known\nbrand that home cooks want to replicate.” (citation modiﬁed)).\n\fNos. 24-3317 et al. 17\n\nitems, indicating the term is used widely in the industry as a\ngeneric term. See Miller Brewing, 561 F.2d at 80 (ﬁnding “light”\ngeneric in part because it is “widely used in the beer indus-\ntry”). These menus provide some support for genericness, but\nunlike the evidence in Miller Brewing showing others in the\nbeer industry used “light” to describe their own distinct prod-\nucts, it is unclear whether the menus Little Caesars cited refer\nto the restaurants’ own products or to Iltaco’s, given Iltaco\nsells its food products to third-party restaurants. Little Cae-\nsars nevertheless contends the menus support genericness be-\ncause placing “pizza puﬀ” alongside generic terms like\n“fries” and “hot dog” must mean “pizza puﬀ” is generic. But\nagain, because Little Caesars did not show 11 the menus refer-\nenced anything but Iltaco’s product, they do not necessarily\nshow others in the industry do not associate “pizza puﬀ” with\nIltaco.\n Even so, the district court ultimately erred by ﬁnding Il-\ntaco was likely to succeed in showing “Pizza Puﬀ” is protect-\nable because the court failed to apply the primary signiﬁcance\ntest and the record did not support its ﬁnal decision. Little\nCaesars’ consumer survey data, dictionary deﬁnitions, and\nUSPTO registrations showing generic usage were suﬃcient to\novercome the presumption of trademark validity, and Iltaco\ndid not show how it could overcome this evidence at trial to\nprove “Pizza Puﬀ” is a protectable mark. Iltaco thus failed to\ncarry its burden of showing a likelihood of success on the\n\n\n 11 Little Caesars must make an aﬃrmative showing because it bears\n\nthe burden of overcoming the presumption of protectability inherent to\nincontestable marks. See Liquid Controls, 802 F.2d at 936 (“The burden is on\nthe defendant to overcome the presumption.”).\n\f18 Nos. 24-3317 et al.\n\nmerits, so the district court should not have granted its motion\nfor preliminary injunction.\n 2. Fair Use Analysis\n Even if “Pizza Puﬀ” is suﬃciently distinctive to merit pro-\ntection under the Lanham Act, Iltaco cannot prevail without\nshowing how it will successfully counter Little Caesars’ fair\nuse defense. A defendant in a trademark infringement case\nmay invoke the “fair use” defense by demonstrating that (1) it\nused the phrase at issue in a non-trademark capacity, (2) the\nphrase is descriptive of its goods and services, and (3) it used\nthe phrase “fairly and in good faith” only to describe its\ngoods. § 1115(b)(4); see also Sands, Taylor & Wood Co. v. Quaker\nOats Co., 978 F.2d 947, 951 (7th Cir. 1992); Packman, 267 F.3d at\n639.\n Little Caesars asserted a fair use defense in response to Il-\ntaco’s preliminary injunction motion, but the district court re-\njected the defense based on the second prong, 12 explaining:\n The defendants have not shown that “PIZZA PUFFS”\n is descriptive of their goods. The defendants[’] product\n looks like a mini-pizza or a pizza muﬃn or a pizza cup-\n cake or a pizza bite. It is not apparent what part of the\n defendants’ product is a puﬀ, which means that the\n mark is not descriptive of the defendants’ goods.\n The district court erred in reaching this conclusion be-\ncause it misapplied the relevant legal standard to determine\nwhether “Pizza Puﬀ” is descriptive of Little Caesars’ product.\nThe district court mistakenly required Little Caesars’ product\n\n\n 12 Because the district court did not address the ﬁrst or third prongs\n\nof fair use, we do not address them here.\n\fNos. 24-3317 et al. 19\n\nto be a pizza puﬀ for the term to apply descriptively. In fact,\nthe term need only refer to a characteristic of the product.\nF. Corp., 903 F.2d at 444. We identiﬁed a similar problem in\nQuaker Oats, where the district court erred by requiring a de-\nscriptive term to “bring to mind the product in question.” 978\nF.2d at 952. We explained “it is not necessary that a descrip-\ntive term depict the [product] itself, but only that the term re-\nfer to a characteristic of the [product].” Id. (quoting F. Corp., 903\nF.2d at 444). The district court should have considered\nwhether “Pizza Puﬀ” fairly described a characteristic or qual-\nity of Little Caesars’ Crazy Puﬀs product, not whether Crazy\nPuﬀs are pizza puﬀs.\n Under the correct test, the district court’s determination\nthat “Pizza Puﬀ” is not descriptive falls short. A Little Caesars\nrepresentative testiﬁed that “Crazy Puﬀs” are “light and airy\nmuﬃns” that are “puﬀy.” No one disputes that Crazy Puﬀs\nare ﬁlled with pizza ingredients like cheese, tomato sauce,\nmeat, and vegetables. This evidence fairly shows that “Pizza\nPuﬀ” describes a Crazy Puﬀ, which is a puﬀy and airy muﬃn\ncontaining pizza ingredients. And “Pizza Puﬀ” appears as\npart of the phrase “4 Hand-Held Pizza Puﬀs,” which is clearly\ndescribing the quantity, size, and type of food customers can\nexpect when they purchase a Crazy Puﬀ. The district court\ndid not consider this evidence or explain how Iltaco could\ncounter it at trial. Because the district court applied the wrong\nstandard, the district court abused its discretion in granting\nthe preliminary injunction for “Pizza Puﬀ.” See Lawson Prods.,\n782 F.2d at 1437 (“[A] factual or legal error may alone be suf-\nﬁcient to establish that the court ‘abused its discretion’ in\nmaking its ﬁnal determination.”).\n\f20 Nos. 24-3317 et al.\n\nB. “Crazy Puﬀs” and “Puﬀ”\n The district court found Iltaco failed to meet its burden\nwith respect to Little Caesars’ use of its “Crazy Puﬀs” mark\nbecause Iltaco did not show there was a likelihood of confu-\nsion between Little Caesars’ “Crazy Puﬀs” mark and Iltaco’s\n“Pizza Puﬀ” or “Puﬀ” marks. The court did not clearly err in\neither determination, so we aﬃrm its decision regarding both\nmarks.\n The district court correctly rejected Iltaco’s suggestion that\n“Crazy Puﬀs” and “Pizza Puﬀ” were confusingly similar be-\ncause both contain the word “Puﬀ.” When evaluating the like-\nlihood of confusion between marks, “we must keep in mind\nthat ‘[t]he commercial impression of a trade-mark is derived\nfrom it as a whole, not from its elements separated and con-\nsidered in detail.’” Grubhub, 80 F.4th at 848 (quoting Est. of\nP.D. Beckwith, Inc. v. Comm'r of Pats., 252 U.S. 538, 545–46\n(1920)). Thus, we cannot look at “Puﬀ” (from “Crazy Puﬀs”)\nin isolation and ﬁnd it confusingly similar to “Puﬀ” in Iltaco’s\n“Pizza Puﬀ” name. We must consider the “Crazy Puﬀs” mark\nin its entirety, as the district court rightly explained.\n Viewing the “Crazy Puﬀs” mark as a whole, the district\ncourt did not err in ﬁnding no likelihood of confusion with\n“Pizza Puﬀ.” The court found the two terms are signiﬁcantly\ndiﬀerent because Iltaco’s mark denotes the ingredients found\nin the product while Little Caesars’ mark uses “Crazy” to tie\nits product to its own family of Crazy marks. Iltaco’s mark\ndescribes what a consumer can expect to ﬁnd inside the puﬀ,\nwhile Little Caesars’ mark designates its brand. Though the\ncourt found other likelihood-of-confusion factors may favor\nIltaco, it held “the diﬀerence in the marks’ overall impression\n\fNos. 24-3317 et al. 21\n\nprecludes ﬁnding a likelihood of success by the plaintiﬀ on\nlikelihood of confusion.”\n A district court has broad “ﬂexibility to determine what\n[likelihood-of-confusion] factors are most critical in a case.”\nTy, Inc. v. Jones Grp., Inc., 237 F.3d 891, 901 (7th Cir. 2001). And\nbecause the similarity of the marks is one of the most im-\nportant considerations, a district court does not abuse its dis-\ncretion by ﬁnding no likelihood of confusion based on dissim-\nilar marks even when other factors weigh in favor of confu-\nsion. Eli Lilly & Co. v. Nat. Answers, Inc., 233 F.3d 456, 462 (7th\nCir. 2000). Here, the district court made a reasoned determi-\nnation that the two marks were not similar and did not abuse\nits discretion in weighing the similarity factor heavily to ﬁnd\nno likelihood of success in showing likelihood of confusion.\n * * *\n Because Iltaco did not show it is likely to succeed in prov-\ning that “Pizza Puﬀ” is protectable or rebutting Little Caesars’\nfair use defense at trial, Iltaco has not established a likelihood\nof success on the merits. Accordingly, we do not proceed to\nthe harms-balancing or public interest steps of the prelimi-\nnary injunction analysis. See Grubhub, 80 F.4th at 844 (“[Only]\n[u]pon a showing of [likelihood of success on the merits], the\ncourt weighs the harm of denying an injunction.”).\n The district court abused its discretion by granting the pre-\nliminary injunction as to “Pizza Puﬀ,” but did not abuse its\ndiscretion in denying the injunction regarding “Crazy Puﬀs”\nor “Puﬀ.”\n The judgment of the district court is\n AFFIRMED IN PART AND REVERSED IN PART.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11242194/", "author_raw": "ST. EVE, Circuit Judge"}]}	SCUDDER	ST EVE	JACKSON-AKIWUMI	1		{"SCUDDER": ", Circuit", "ST EVE": ", Circuit", "JACKSON-AKIWUMI": ", Circuit"}	2	0	0	2	null	https://www.courtlistener.com/api/rest/v4/clusters/10775607/	Published	2	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,775,608	Illinois Tamale Company, Inc. v. LC Trademarks, Inc.	2026-01-16	25-1072	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before SCUDDER, ST. EVE, and JACKSON-AKIWUMI, Circuit Judges.", "parties": "", "opinions": [{"author": "ST. EVE, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNos. 24-3317, 25-1072, 25-1076 & 25-1112\nILLINOIS TAMALE COMPANY, INC., doing business as ILTACO,\n Plaintiﬀ-Appellee/Cross-Appellant,\n v.\n\nLC TRADEMARKS, INC. and LITTLE CAESAR ENTERPRISES, INC.,\n Defendants-Appellants/Cross-Appellees.\n ____________________\n\n Appeals from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 1:24-cv-05210 — Jeremy C. Daniel, Judge.\n ____________________\n\n ARGUED NOVEMBER 14, 2025 — DECIDED JANUARY 16, 2026\n ____________________\n\n Before SCUDDER, ST. EVE, and JACKSON-AKIWUMI, Circuit\nJudges.\n ST. EVE, Circuit Judge. Illinois Tamale Company, Inc. (“Il-\ntaco”), a Chicago-based food company, brought this trade-\nmark infringement action against LC Trademarks, Inc. and\nLittle Caesar Enterprises, Inc. (collectively “Little Caesars”),\nbased on Little Caesars’ advertising for its “Crazy Puﬀs” food\nproduct. Iltaco claimed Little Caesars’ Crazy Puﬀs product\nand advertising caused a substantial likelihood of confusion\n\f2 Nos. 24-3317 et al.\n\nwith Iltaco’s trademark-protected “Pizza Puﬀ” product. Iltaco\nalso moved for a preliminary injunction to enjoin Little Cae-\nsars from using “Crazy Puﬀ,” “Pizza Puﬀ,” and “Puﬀ” in its\nproduct names and advertising. The district court denied the\npreliminary injunction as to “Crazy Puﬀ” and “Puﬀ,” ﬁnding\nIltaco failed to show suﬃcient likelihood of success in its\ntrademark infringement action regarding those terms, but\ngranted the preliminary injunction as to “Pizza Puﬀ.” Because\nthe district court erred in concluding that Iltaco showed it was\nlikely to succeed on the merits of its trademark infringement\nclaim pertaining to “Pizza Puﬀ,” we reverse that portion of its\ndecision. We aﬃrm the district court’s decision as to “Crazy\nPuﬀ” and “Puﬀ.”\n I. Background\nA. Factual Background\n Iltaco is a Chicago-based food company founded in 1927.\nIn 1976, Iltaco began selling its pizza puﬀ product, which is\nsimilar to a calzone but made from a ﬂour tortilla wrapped\naround pizza toppings and can be fried or baked. Iltaco now\nsells its pizza puﬀs nationwide and has expanded its line of\nstuﬀed sandwich products to include a wide range of ingre-\ndients. Iltaco’s list of registered trademarks includes the\n“Pizza Puff,” “Gyro Puff,” “Ham Breakfast Puff,” “Sausage\nBreakfast Puff,” and “Spinach & Cheese Puff.” Specifically, it\nregistered its “Pizza Puff” trademark on May 26, 2009. It also\nhas a registered trademark for “Puff” as of May 3, 2022. Iltaco\nadvertises its stuffed sandwich products under the “Pizza\nPuff” and “Puff” trademarks.\n Little Caesars is a large chain of pizza restaurants founded\nin the United States with restaurant franchises worldwide. In\n\fNos. 24-3317 et al. 3\n\nMarch 2024, Little Caesars launched its new Crazy Puffs\nproduct in its restaurants throughout the country. Crazy\nPuffs are small, baked pizza dough cups filled with pizza in-\ngredients and topped with cheese. Crazy Puffs join Little Cae-\nsars’ numerous other “Crazy” marks, which the pizza chain\nhas used extensively in its marketing since the 1980s. Little\nCaesars owns numerous federal trademark registrations for\nits various “Crazy” products, and in May 2024 finalized its\nfederal registration for the “Crazy Puffs” mark. 1 Before final-\nizing Little Caesars’ registration, an examining attorney with\nthe U.S. Patent and Trademark Office (“USPTO”) searched\nthe database of registered and pending marks and found no\nlikelihood of confusion between “Crazy Puffs” and any prior\nregistered or pending marks of third parties, including Iltaco.\n Since launching Crazy Puffs, Little Caesars has marketed\nits puffs heavily using its “Little Caesars” trade name and the\nclassic Little Caesars trade dress—the Roman Character logo,\n“Hot-N-Ready” tagline, “Crazy” mark, and bright orange col-\noring. Crazy Puffs marketing materials include a line reading\n“4 Hand-Held Pizza Puffs,” which appears in small print di-\nrectly below “Crazy Puffs.” The phrase “Pizza Puffs” appears\nas part of “4 Hand-Held Pizza Puffs,” which always appears\nin conjunction with the “Crazy Puffs” mark.\n\n\n\n\n 1 Little Caesars disclaimed “Puﬀs” as part of its trademark in compli-\n\nance with a USPTO examining attorney’s advice, meaning Little Caesars\nclaims no rights in that word.\n\f4 Nos. 24-3317 et al.\n\n\n\n\n Little Caesars Crazy Puﬀs Advertisement\n Little Caesars sells Crazy Puffs exclusively through its res-\ntaurants, where customers can purchase them through tradi-\ntional carryout or delivery channels. Little Caesars does not\nsell Crazy Puffs in grocery stores, convenience stores, or\nthird-party restaurants.\nB. Procedural Background\n The present dispute began in April 2024 when Iltaco sent\nLittle Caesars a cease-and-desist letter claiming “Crazy Puﬀs”\nand “4 Hand-Held Pizza Puﬀs” infringed Iltaco’s trademark\nrights in its “Pizza Puﬀ” and “Puﬀ” marks. Little Caesars dis-\nputed the merits of Iltaco’s claims and continued to use both\n“Crazy Puﬀs” and “4 Hand-Held Pizza Puﬀs.”\n On June 21, 2024, Iltaco brought a four count complaint\nagainst Little Caesars, asserting claims under Section 32 of the\nLanham Act, 15 U.S.C. § 1114, for trademark infringement\n(Count I); Section 43(a) of the Lanham Act, § 1125, for false\ndesignation of origin (Count II); the Illinois Uniform Decep-\ntive Trade Practices Act, 815 ILCS 510/1 (Count III); and\n\fNos. 24-3317 et al. 5\n\ncommon law unfair competition (Count IV). On the same day,\nIltaco ﬁled its motion for a preliminary injunction, seeking to\nenjoin Little Caesars from using “Crazy Puﬀs,” “Pizza Puﬀ,”\nand “Puﬀ” in selling its product. After holding an evidentiary\nhearing, the district court granted Iltaco’s motion as to “Pizza\nPuﬀ” and denied it as to “Crazy Puﬀs” and “Puﬀ.” Little Cae-\nsars now appeals the district court’s decision enjoining its use\nof “Pizza Puﬀ,” 2 and Iltaco cross-appeals the district court’s\ndenial of its injunction motion regarding “Crazy Puﬀs” and\n“Puﬀ.”\n II. Legal Standard\n “We review the district court's denial of the motion for a\npreliminary injunction for an abuse of discretion, viewing its\nlegal conclusions de novo, and ﬁndings of fact for clear error.”\nMinocqua Brewing Co. v. Hess, 160 F.4th 849, 851 (7th Cir. 2025)\n(citing Richwine v. Matuszak, 148 F.4th 942, 952 (7th Cir. 2025)).\n A district court may grant a preliminary injunction where\nthe “movant shows that it is likely to succeed on the merits of\n\n\n 2 Little Caesars also purports to appeal the district court’s decision re-\n\ngarding its use of “Puﬀ,” arguing that the district court improperly found\n“Puﬀ” is a protectable mark rather than a generic term. The district court\ndid ﬁnd “Puﬀ” protectable, but also found no likelihood of confusion\nstemming from Little Caesars’ use of “Puﬀ” and accordingly denied the\nmotion for preliminary injunction as to “Puﬀ.” Because the district court\nultimately ruled in Little Caesars’ favor as to “Puﬀ,” Little Caesars cannot\nappeal this favorable decision. See Bd. Of Trs. Of Univ. of Ill. v. Organon\nTeknika Corp. LLC, 614 F.3d 372, 374 (7th Cir. 2010); United States v. Accra\nPac, Inc., 173 F.3d 630, 632 (7th Cir. 1999) (“[A] litigant may not appeal\nfrom unfavorable statements in a judicial opinion, if the judgment was fa-\nvorable.”).\n\f6 Nos. 24-3317 et al.\n\nits claims and that traditional legal remedies would be inade-\nquate, such that it would suﬀer irreparable harm without in-\njunctive relief.” Grubhub Inc. v. Relish Labs LLC, 80 F.4th 835,\n843 (7th Cir. 2023) (citing Life Spine, Inc. v. Aegis Spine, Inc., 8\nF.4th 531, 539 (7th Cir. 2021)). Trademark law affords a rebut-\ntable presumption of irreparable harm to movants who show\nthey are likely to succeed on the merits of their trademark in-\nfringement claims. Id.; § 1116(a). If the movant shows it is\nlikely to succeed on the merits, the court next “weighs the\nharm of denying an injunction to the movant against the harm\nof granting an injunction to the nonmovant.” Grubhub, 80\nF.4th at 844. The court also considers the public interest in\ngranting versus denying the preliminary injunction request.\nLife Spine, 8 F.4th at 539.\n “[A]n applicant for preliminary relief bears a signiﬁcant\nburden,” Ill. Republican Party v. Pritzker, 973 F.3d 760, 763 (7th\nCir. 2020), and must show more than “a mere possibility of\nsuccess” on the merits to prevail, Life Spine, Inc., 8 F.4th at 540.\nIt is not enough, as Iltaco asserts, to show only a “better than\nnegligible” chance of succeeding on the merits. 3 Nken v.\nHolder, 556 U.S. 418, 434 (2009). Of course, the movant “need\nnot show that it deﬁnitely will win the case,” but it “must\n\n\n 3 It is diﬃcult to determine which standard the district court applied.\n\nIf the court applied the “better than negligible standard,” it abused its dis-\ncretion. See Lawson Prods., Inc. v. Avnet, Inc., 782 F.2d 1429, 1437 (7th Cir.\n1986) (“A district judge may abuse his discretion . . . [by applying] an in-\ncorrect preliminary injunction standard.”); see also Arwa Chiropractic, P.C.\nv. Med-Care Diabetic & Med. Supplies, Inc., 961 F.3d 942, 949 (7th Cir. 2020)\n(“A court abuses its discretion when it fails to consider a motion under the\nproper legal standard.”). Even if it applied the correct standard, however,\nthe district court committed other legal errors that require reversal in part.\n\fNos. 24-3317 et al. 7\n\ndemonstrate at a minimum how it proposes to prove the key\nelements of its case.” Grubhub, 80 F.4th at 844.\n III. Discussion\n Trademark law serves the dual purposes of protecting cus-\ntomers’ desires to make informed purchasing decisions based\non familiar, trustworthy marks, and protecting trademark\nowners against misappropriation of marks in which they\nhave invested signiﬁcant time, energy, and resources. See id.\n The Trademark Act of 1946, known as the Lanham Act,\ncodiﬁed at 15 U.S.C. §§ 1051–1141n, governs our analysis.\n“The Lanham Act allows those who employ trade or service\nmarks to register them for exclusive use in commerce.” Sport-\nFuel, Inc. v. PepsiCo, Inc., 932 F.3d 589, 595 (7th Cir. 2019) (cit-\ning KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543\nU.S. 111, 117 (2004)). Under the Lanham Act, a “holder of a\nregistered mark … has a civil action against anyone employ-\ning an imitation of it in commerce when ‘such use is likely to\ncause confusion, or to cause mistake, or to deceive.’” KP Per-\nmanent Make-Up, 543 U.S. at 117 (quoting § 1114(1)(a)). To pre-\nvail on such a claim, the plaintiﬀ must establish that “(1) its\nmark is protectable and (2) the defendant’s use of the mark is\nlikely to cause confusion among consumers.” CAE, Inc. v.\nClean Air Eng’g, Inc., 267 F.3d 660, 673–74 (7th Cir. 2001).\n The Lanham Act also provides aﬃrmative defenses to\ncounter a plaintiﬀ’s claims, including the “fair use” defense.\nSee § 1115(b). The fair use defense “allows individuals to use\notherwise trademarked language in a descriptive sense.”\nSportFuel, 932 F.3d at 595 (citing Packman v. Chi. Trib. Co., 267\nF.3d 628, 639 (7th Cir. 2001)). To raise the fair use defense suc-\ncessfully, a defendant must show that (1) it did not use the\n\f8 Nos. 24-3317 et al.\n\nmark at issue as a trademark, (2) the use is descriptive of its\ngoods, and (3) it used the mark fairly and in good faith.\nSorensen v. WD-40 Co., 792 F.3d 712, 722 (7th Cir. 2015) (citing\n§ 1115(b)(4)); Packman, 267 F.3d at 639.\nA. “Pizza Puﬀ”\n The district court found Iltaco was likely to succeed on the\nmerits of its trademark infringement action for its “Pizza\nPuﬀ” mark. In doing so, the court found Iltaco was likely to\nsucceed in showing “Pizza Puﬀ” was a protectable mark, that\nno fair use defense applied, and that there was substantial\nlikelihood of confusion between both parties’ use of “Pizza\nPuﬀ.” We address the district court’s ﬁndings regarding pro-\ntectability and fair use, 4 and ultimately reverse the prelimi-\nnary injunction on Little Caesars’ use of “Pizza Puﬀ” because\nIltaco failed to meet its burden of establishing a suﬃcient like-\nlihood of success on the merits of its claim.\n 1. Protectability Analysis\n To succeed on a trademark infringement action, the mark\nor marks at issue must be protectable under the Lanham Act\nin the ﬁrst place. Whether a mark is entitled to protection de-\npends upon where it falls on a spectrum of increasing distinc-\ntiveness from (1) generic, (2) descriptive, (3) suggestive,\n(4) arbitrary, or (5) fanciful. Platinum Home Mortg. Corp. v.\nPlatinum Fin. Grp., 149 F.3d 722, 727 (7th Cir. 1998); Packman,\n267 F.3d at 638. We review the district court’s factual\n\n\n\n 4 We are skeptical whether the district court made suﬃcient factual\n\nﬁndings to support its likelihood of confusion analysis. In any event, we\nneed not address likelihood of confusion because we are reversing on\nother grounds.\n\fNos. 24-3317 et al. 9\n\ndetermination of where a mark falls along this spectrum for\nclear error. Mil-Mar Shoe Co. v. Shonac Corp., 75 F.3d 1153,\n1156–57 (7th Cir. 1996) (“[P]lacement of a mark in a particular\ncategory is subject to review for clear error, and thus may be\nset aside only if, after considering all the evidence, we are ‘left\nwith the deﬁnite and ﬁrm conviction that a mistake has been\ncommitted.’” (quoting F. Corp. of N. Am. v. F., Ltd., 903 F.2d\n434, 438 (7th Cir.1990))).\n A trademark infringement action must fail if the mark is\ngeneric and will usually fail if the mark is descriptive. Generic\nterms, which are the terms “commonly used as the name of a\nkind of goods,” Liquid Controls Corp. v. Liquid Control Corp.,\n802 F.2d 934, 936 (7th Cir. 1986), may not be trademark pro-\ntected “under any circumstances,” Miller Brewing Co. v. G.\nHeileman Co., 561 F.2d 75, 79 (7th Cir. 1977). Descriptive terms,\nwhich describe the ingredients, characteristics, or qualities of\nan article, are protected only if the holder can establish that\nthe mark has acquired a secondary meaning. U.S. Pat. &\nTrademark Oﬀ. v. Booking.com B. V., 591 U.S. 549, 553 (2020).\nSecondary meaning attaches to marks that have “achieve[d]\nsigniﬁcance ‘in the minds of the public’ as identifying the ap-\nplicant’s goods or services.” Id. (quoting Wal-Mart Stores, Inc.\nv. Samara Bros., Inc., 529 U.S. 205, 211 (2000)). “Holiday Inn,”\nfor example, describes a vacation accommodation, but most\npeople associate the term with one speciﬁc brand. See also Un-\ncommon, LLC v. Spigen, Inc., 926 F.3d 409, 420 (7th Cir. 2019)\n(“5-Hour Energy . . . describes the caﬀeinated shot, but is\nreadily associated by most customers with one maker.” (in-\nternal quotations omitted)).\n\f10 Nos. 24-3317 et al.\n\n The Lanham Act provides a rebuttable presumption of va-\nlidity 5 for successfully registered trademarks, but the pre-\nsumption “evaporates as soon as evidence of invalidity is pre-\nsented.” Ga.-Pac. Consumer Prods. LP v. Kimberly-Clark Corp.,\n647 F.3d 723, 727 (7th Cir. 2011) (quoting Door Sys., Inc. v. Pro–\nLine Door Sys., Inc., 83 F.3d 169, 172 (7th Cir. 1996)). As rele-\nvant here, an incontestable registered mark—one that has been\nin continuous use for ﬁve years after registration—attains an\neven higher status of legal protection. The defendant may\novercome this strong presumption of validity only by show-\ning the incontestable trademark has become generic. § 1065;\nEco Mfg. LLC. v. Honeywell Int’l, Inc., 357 F.3d 649, 651 (7th Cir.\n2003).\n The district court found Iltaco’s “Pizza Puﬀ” mark was\nprotectable because Little Caesars failed to overcome the pre-\nsumption of protection aﬀorded to incontestable marks. Be-\ncause the court committed several errors in its analysis, and\nbecause Iltaco did not otherwise show it was likely to succeed\nin proving its mark is protectable, we reverse this portion of\nthe court’s decision.\n a. Primary Signiﬁcance Test for Genericness\n Whether a registered mark has become a generic term\nturns on the mark’s “primary signiﬁcance” to the relevant\npublic. § 1064(3) (“The primary signiﬁcance of the registered\nmark to the relevant public ... shall be the test for determining\nwhether the registered mark has become the generic name of\n\n\n 5 “The validity of a mark pertains to whether” a given term “is entitled\n\nto protection under trademark law.” Platinum Home, 149 F.3d at 726. If a\nterm that is the subject of a registered trademark is shown to be unprotect-\nable, the mark is invalid. Id.\n\fNos. 24-3317 et al. 11\n\ngoods or services.”); see also Booking.com, 591 U.S. at 556 (ap-\nplying “primary signiﬁcance” test to determine whether mark\nwas generic). The district court neglected to apply the primary\nsigniﬁcance test here. Instead, it found Iltaco was likely to suc-\nceed in showing its mark was protectable because other\nbrands selling similar products are “able to compete eﬀec-\ntively without using the plaintiﬀ’s ‘PIZZA PUFFS’ mark.” The\ndistrict court drew this standard from Ty Inc. v. Softbelly’s Inc.,\nwhere we explained, in dicta, that ﬁnding a trademark has be-\ncome generic is a “fateful step” that we do not ordinarily take\n“until the trademark has gone so far toward becoming the ex-\nclusive descriptor of the product that sellers of competing\nbrands cannot compete eﬀectively without using the name to\ndesignate the product they are selling.” 353 F.3d 528, 531 (7th\nCir. 2003). Because Iltaco provided examples of other brands\nproducing similar products that competed eﬀectively without\nusing “Pizza Puﬀ” (e.g., Hot Pockets, Totino’s Pizza Rolls,\nJimmy Dean Toaster Pop-Ups), the district court found the\nmark had not become the “exclusive descriptor” of the prod-\nuct and therefore was not generic under Ty.\n Our language in Ty may explain one reason why generic\nmarks are not protectable—i.e., because protecting generic\nmarks would stymie competition from sellers of similar prod-\nucts unable to suﬃciently describe their product. But it is not\nthe correct test for genericness. The plain language of the Lan-\nham Act, Supreme Court precedent, and even a previous par-\nagraph in Ty explain that we assess the mark’s primary sig-\nniﬁcance to determine whether it has become generic and\nthus unprotectable under the Lanham Act. See § 1064(3); Book-\ning.com, 591 U.S. at 556; Ty, 353 F.3d at 530–31 (“[T]he legal\ntest of genericness is ‘primary signiﬁcance.’”). A term need\nnot be the exclusive descriptor of a product to become generic.\n\f12 Nos. 24-3317 et al.\n\nRather, a trademark plaintiﬀ “may not prevent [the] defend-\nant from using [a mark] simply because there are other titles\ndefendant could use.” Tech. Publ’g Co. v. Lebhar-Friedman, Inc.,\n729 F.2d 1136, 1141 (7th Cir 1984); 6 see also 2 J. Thomas McCar-\nthy, McCarthy on Trademarks and Unfair Competition § 12:9\n(2006) (“Any product may have many generic designations.\nAny one of those is incapable of trademark signiﬁcance.”). A\ngeneric term is not made less generic by the availability of\nother terms. Tech. Publ’g Co., 729 F.2d at 1141. If we held oth-\nerwise, we would “extend protection to a generic term, a re-\nsult clearly at odds with trademark law.” Id. Because the dis-\ntrict court failed to apply the correct legal test––the primary\nsigniﬁcance test––to determine genericness, the district court\nerred.\n b. Primary Signiﬁcance of “Pizza Puﬀ”\n Viewed under the correct standard, the issue is whether\nthe primary signiﬁcance of “Pizza Puﬀ” to consumers is as a\ngeneric term describing a class of products or a distinctive\nterm indicating association with a particular brand.\n\n\n\n 6 Iltaco attempts to distinguish Technical Publishing Co. because it dealt\n\nwith a magazine title, and “[m]agazines diﬀer from other goods[] in that\ntheir title is a primary means of conveying their content,” so “[c]ourts con-\nfronted with similar trade journal disputes have held consistently that ti-\ntles consisting of the trade name and an indication of the type of publica-\ntion are generic.” 729 F.2d at 1140. But the distinction we drew between\nmagazines and other goods related only to our classiﬁcation of magazine\ntitles as generic or descriptive terms; it did not extend to the test we apply\nto determine whether a mark has become generic. Id. Elsewhere in the\nopinion, we conﬁrmed “[t]he test in determining whether a magazine title\nis generic is no diﬀerent than that applied in determining whether any\nother mark is generic.” Id.\n\fNos. 24-3317 et al. 13\n\nBooking.com, 591 U.S. at 560–61. To determine the primary sig-\nniﬁcance of a term, the court may consider “consumer sur-\nveys, … dictionaries, usage by consumers and competitors,\nand any other source of evidence bearing on how consumers\nperceive a term’s meaning.” Id. at 561 n.6.\n Little Caesars presented extensive evidence to show that\nthe primary signiﬁcance of Iltaco’s incontestable 7 “Pizza Puﬀ”\nmark to consumers is as a generic term. First, Little Caesars\npresented the results of a Teﬂon survey, 8 showing 83.3% of\nconsumers of dough-based, pizza-ingredient-ﬁlled foods per-\nceive “pizza puﬀ” as a common (i.e., generic) term, while only\n12.7% perceive the term as a brand name. The district court\ndismissed this strong evidence of genericness by ﬁnding it\nwas “not conclusive” because in Ty we said, in dicta, that as\nfew as ten percent of consumers associating a mark with an\nowner’s brand could result in consumer confusion. 353 F.3d\nat 531. We cannot accept that ten percent of consumers is a\nrelevant percentage for the genericness test, which focuses on\nthe “primary signiﬁcance” of a product to consumers. “[I]f a\nsurvey showed that 75 percent of the public regard the word\nas generic, then that is its majority usage and its ‘principal sig-\nniﬁcance.’” McCarthy § 12:6. Primary signiﬁcance requires far\n\n\n 7 Iltaco registered its “Pizza Puﬀ” mark in 2009, well over ﬁve years\n\nago, and has used it consistently since, so it has now become incontestable.\nThe parties agree this mark is incontestable.\n 8 Teﬂon surveys are the “most judicially accepted format for testing for\n\ngenericness.” McCarthy § 12:16. In a Teﬂon survey, the survey “begins\nwith a brief lesson explaining the diﬀerence between brand names and\ncommon names. It then asks respondents to classify a series of words, in-\ncluding the trademark at issue, as either brand names or common names.”\nElliott v. Google, Inc., 860 F.3d 1151, 1160 n.7 (9th Cir. 2017).\n\f14 Nos. 24-3317 et al.\n\nmore than ten percent. The court thus erred when it found\nLittle Caesars’ evidence inconclusive based on this inapplica-\nble statement of the law. Viewed properly, survey data show-\ning over 80 percent of relevant consumers perceive “pizza\npuﬀ” as a generic term presents strong evidence of its gener-\nicness. See McCarthy § 12:6.\n Little Caesars also presented several deﬁnitions of “pizza\npuﬀ” drawn from crowd-sourced dictionaries to show the\nterm has acquired a generic meaning. Deﬁnitions.net de-\nscribes a pizza puﬀ as “A dough pouch ﬁlled with the ingre-\ndients of a pizza, such as cheese, pizza sauce, sausage, and\npepperoni, and usually deep fried.” Kiddle Encyclopedia (an\nonline encyclopedia for kids) describes a pizza puﬀ as “A\ndeep-fried dough pocket ﬁlled with cheese, tomato sauce, and\nother pizza ingredients such as sausage or pepperoni.”\nThough the district court did not address these proﬀered\npizza puﬀ deﬁnitions, Iltaco argues on appeal that the crowd-\nsourced dictionary deﬁnitions are unreliable evidence be-\ncause anyone can edit an online crowd-sourced dictionary.\nBut Little Caesars introduced these deﬁnitions to show how\nthe public uses and perceives the term “pizza puﬀ.” Our ge-\nnericness analysis inquires into the primary signiﬁcance of a\nterm to the public, not its unequivocal technical deﬁnition. 9\n\n 9 A number of federal courts have found crowd-sourced deﬁnitions\n\nunreliable and even inadmissible as evidence of a term’s technical deﬁni-\ntion or as the basis for an expert’s testimony. See, e.g., Badasa v. Mukasey,\n540 F.3d 909, 909 (8th Cir. 2008) (noting Wikipedia deﬁnition of an Ethio-\npian travel document was unreliable evidence of party’s immigration sta-\ntus); Advanced Mech. Servs., Inc. v. Auto-Owners Ins. Co., No. 14-CV-388,\n2017 WL 3381366, at 4 (W.D. Ky. Aug. 4, 2017) (ﬁnding expert witness’s\nopinion inadmissible because expert relied on Wikipedia deﬁnition);\n\fNos. 24-3317 et al. 15\n\nCrowd-sourced dictionary deﬁnitions inform that question,\nso they are relevant to our analysis and weigh in favor of ge-\nnericness. Still, the fact that anyone can edit a crowd-sourced\ndictionary deﬁnition bears on the weight of Little Caesars’\ndictionary evidence.\n The district court acknowledged, though did not analyze,\nevidence Little Caesars introduced of third parties using\n“pizza puﬀ” in their USPTO applications and registrations to\nindicate the term has widespread generic use in the industry.\nWe have found third-party registrations probative of a term’s\nwidespread descriptive use where over ﬁfty third-party reg-\nistrations used the same term to describe a similar quality. See\nSpraying Sys. Co. v. Delevan, Inc., 975 F.2d 387, 393 (7th Cir.\n1992) (ﬁnding the suﬃx “JET” descriptive of a hose product\nbased in part on ﬁfty other registrations using “JET” to de-\nscribe similar high-velocity water stream products). Here, the\nﬁve USPTO registrations cited by Little Caesars may not be\ndispositive on their own, but together with consumer survey\n\n\nFleishman v. Cont'l Cas. Co., No. 09 C 414, 2011 WL 5866264, at 4 (N.D. Ill.\nNov. 22, 2011) (ﬁnding inadmissible Wikipedia deﬁnition of “aneurysm”\nas evidence of plaintiﬀ’s injury). Similarly, the Fourth Circuit found a\nSixth Amendment violation in a criminal trial where the jury inde-\npendently obtained and considered a Wikipedia deﬁnition of an element\nof the crime at issue. United States v. Lawson, 677 F.3d 629, 641 (4th Cir.\n2012). But where a crowdsourced deﬁnition is oﬀered to show the signiﬁ-\ncance of that term to members of the public, at least one federal court has\nrelied upon the deﬁnition. See Hawkins v. City of Phila., 571 F. Supp. 3d 455,\n458 (E.D. Pa. 2021) (relying on crowd-sourced dictionary’s deﬁnition of a\nslang term). Thus, while crowd-sourced dictionary deﬁnitions may unre-\nliably evince a term’s correct or technical deﬁnition, they more reliably\nrepresent what a term means to members of the public, which is what the\ngenericness analysis is concerned about.\n\f16 Nos. 24-3317 et al.\n\nand dictionary evidence the USPTO registrations indicate\nother producers of similar products primarily think of “pizza\npuﬀ” as a name for a class of foods rather than a particular\nbrand within that class.\n Iltaco’s arguments to the contrary—that the USPTO de-\nscriptions are unreliable evidence and that they do not apply\nbecause some of the marks using “pizza puﬀ” as a descriptor\nare inactive—do not counter this evidence. Iltaco relies on a\ndistrict court decision stating that USPTO registrations are not\nsuﬃciently reliable for the court to take judicial notice of\nthem, not that they are unreliable evidence altogether. Face-\nbook, Inc. v. Teachbook.com LLC, 819 F. Supp. 2d 764, 772 (N.D.\nIll. 2011). And USPTO registrations using “pizza puﬀ” are\nprobative of how other companies in the food industry use\nthat term even if they are inactive. Spraying Sys., 975 F.2d at\n393 (“[T]hose [registered trademarks] that are not [in current\nuse] can still be probative on the issue of descriptiveness.”).\n Not all of Little Caesars’ evidence of genericness is as com-\npelling. Online recipes for pizza puﬀs have low evidentiary\nvalue because the internet is replete with copycat recipes\nteaching home cooks how to replicate popular, often trade-\nmarked, dishes at home (e.g., recipes for homemade Hot-\nPockets, Pop-Tarts, etc.). 10 Little Caesars also introduced evi-\ndence of menus listing “pizza puﬀ” alongside generic food\n\n\n\n 10 See Illinois Tamale Co. v. El-Greg, Inc., No. 16 C 5387, 2018 WL 1534971\n\nat 5 (N.D. Ill. Mar. 29, 2018) (“There are also thousands of recipes for a\nhomemade version of Hot Pockets, another speciﬁc brand of stuﬀed sand-\nwich. The existence of such recipes does not necessarily suggest that ‘Hot\nPockets’ is a generic term [but rather] that Hot Pockets are a well-known\nbrand that home cooks want to replicate.” (citation modiﬁed)).\n\fNos. 24-3317 et al. 17\n\nitems, indicating the term is used widely in the industry as a\ngeneric term. See Miller Brewing, 561 F.2d at 80 (ﬁnding “light”\ngeneric in part because it is “widely used in the beer indus-\ntry”). These menus provide some support for genericness, but\nunlike the evidence in Miller Brewing showing others in the\nbeer industry used “light” to describe their own distinct prod-\nucts, it is unclear whether the menus Little Caesars cited refer\nto the restaurants’ own products or to Iltaco’s, given Iltaco\nsells its food products to third-party restaurants. Little Cae-\nsars nevertheless contends the menus support genericness be-\ncause placing “pizza puﬀ” alongside generic terms like\n“fries” and “hot dog” must mean “pizza puﬀ” is generic. But\nagain, because Little Caesars did not show 11 the menus refer-\nenced anything but Iltaco’s product, they do not necessarily\nshow others in the industry do not associate “pizza puﬀ” with\nIltaco.\n Even so, the district court ultimately erred by ﬁnding Il-\ntaco was likely to succeed in showing “Pizza Puﬀ” is protect-\nable because the court failed to apply the primary signiﬁcance\ntest and the record did not support its ﬁnal decision. Little\nCaesars’ consumer survey data, dictionary deﬁnitions, and\nUSPTO registrations showing generic usage were suﬃcient to\novercome the presumption of trademark validity, and Iltaco\ndid not show how it could overcome this evidence at trial to\nprove “Pizza Puﬀ” is a protectable mark. Iltaco thus failed to\ncarry its burden of showing a likelihood of success on the\n\n\n 11 Little Caesars must make an aﬃrmative showing because it bears\n\nthe burden of overcoming the presumption of protectability inherent to\nincontestable marks. See Liquid Controls, 802 F.2d at 936 (“The burden is on\nthe defendant to overcome the presumption.”).\n\f18 Nos. 24-3317 et al.\n\nmerits, so the district court should not have granted its motion\nfor preliminary injunction.\n 2. Fair Use Analysis\n Even if “Pizza Puﬀ” is suﬃciently distinctive to merit pro-\ntection under the Lanham Act, Iltaco cannot prevail without\nshowing how it will successfully counter Little Caesars’ fair\nuse defense. A defendant in a trademark infringement case\nmay invoke the “fair use” defense by demonstrating that (1) it\nused the phrase at issue in a non-trademark capacity, (2) the\nphrase is descriptive of its goods and services, and (3) it used\nthe phrase “fairly and in good faith” only to describe its\ngoods. § 1115(b)(4); see also Sands, Taylor & Wood Co. v. Quaker\nOats Co., 978 F.2d 947, 951 (7th Cir. 1992); Packman, 267 F.3d at\n639.\n Little Caesars asserted a fair use defense in response to Il-\ntaco’s preliminary injunction motion, but the district court re-\njected the defense based on the second prong, 12 explaining:\n The defendants have not shown that “PIZZA PUFFS”\n is descriptive of their goods. The defendants[’] product\n looks like a mini-pizza or a pizza muﬃn or a pizza cup-\n cake or a pizza bite. It is not apparent what part of the\n defendants’ product is a puﬀ, which means that the\n mark is not descriptive of the defendants’ goods.\n The district court erred in reaching this conclusion be-\ncause it misapplied the relevant legal standard to determine\nwhether “Pizza Puﬀ” is descriptive of Little Caesars’ product.\nThe district court mistakenly required Little Caesars’ product\n\n\n 12 Because the district court did not address the ﬁrst or third prongs\n\nof fair use, we do not address them here.\n\fNos. 24-3317 et al. 19\n\nto be a pizza puﬀ for the term to apply descriptively. In fact,\nthe term need only refer to a characteristic of the product.\nF. Corp., 903 F.2d at 444. We identiﬁed a similar problem in\nQuaker Oats, where the district court erred by requiring a de-\nscriptive term to “bring to mind the product in question.” 978\nF.2d at 952. We explained “it is not necessary that a descrip-\ntive term depict the [product] itself, but only that the term re-\nfer to a characteristic of the [product].” Id. (quoting F. Corp., 903\nF.2d at 444). The district court should have considered\nwhether “Pizza Puﬀ” fairly described a characteristic or qual-\nity of Little Caesars’ Crazy Puﬀs product, not whether Crazy\nPuﬀs are pizza puﬀs.\n Under the correct test, the district court’s determination\nthat “Pizza Puﬀ” is not descriptive falls short. A Little Caesars\nrepresentative testiﬁed that “Crazy Puﬀs” are “light and airy\nmuﬃns” that are “puﬀy.” No one disputes that Crazy Puﬀs\nare ﬁlled with pizza ingredients like cheese, tomato sauce,\nmeat, and vegetables. This evidence fairly shows that “Pizza\nPuﬀ” describes a Crazy Puﬀ, which is a puﬀy and airy muﬃn\ncontaining pizza ingredients. And “Pizza Puﬀ” appears as\npart of the phrase “4 Hand-Held Pizza Puﬀs,” which is clearly\ndescribing the quantity, size, and type of food customers can\nexpect when they purchase a Crazy Puﬀ. The district court\ndid not consider this evidence or explain how Iltaco could\ncounter it at trial. Because the district court applied the wrong\nstandard, the district court abused its discretion in granting\nthe preliminary injunction for “Pizza Puﬀ.” See Lawson Prods.,\n782 F.2d at 1437 (“[A] factual or legal error may alone be suf-\nﬁcient to establish that the court ‘abused its discretion’ in\nmaking its ﬁnal determination.”).\n\f20 Nos. 24-3317 et al.\n\nB. “Crazy Puﬀs” and “Puﬀ”\n The district court found Iltaco failed to meet its burden\nwith respect to Little Caesars’ use of its “Crazy Puﬀs” mark\nbecause Iltaco did not show there was a likelihood of confu-\nsion between Little Caesars’ “Crazy Puﬀs” mark and Iltaco’s\n“Pizza Puﬀ” or “Puﬀ” marks. The court did not clearly err in\neither determination, so we aﬃrm its decision regarding both\nmarks.\n The district court correctly rejected Iltaco’s suggestion that\n“Crazy Puﬀs” and “Pizza Puﬀ” were confusingly similar be-\ncause both contain the word “Puﬀ.” When evaluating the like-\nlihood of confusion between marks, “we must keep in mind\nthat ‘[t]he commercial impression of a trade-mark is derived\nfrom it as a whole, not from its elements separated and con-\nsidered in detail.’” Grubhub, 80 F.4th at 848 (quoting Est. of\nP.D. Beckwith, Inc. v. Comm'r of Pats., 252 U.S. 538, 545–46\n(1920)). Thus, we cannot look at “Puﬀ” (from “Crazy Puﬀs”)\nin isolation and ﬁnd it confusingly similar to “Puﬀ” in Iltaco’s\n“Pizza Puﬀ” name. We must consider the “Crazy Puﬀs” mark\nin its entirety, as the district court rightly explained.\n Viewing the “Crazy Puﬀs” mark as a whole, the district\ncourt did not err in ﬁnding no likelihood of confusion with\n“Pizza Puﬀ.” The court found the two terms are signiﬁcantly\ndiﬀerent because Iltaco’s mark denotes the ingredients found\nin the product while Little Caesars’ mark uses “Crazy” to tie\nits product to its own family of Crazy marks. Iltaco’s mark\ndescribes what a consumer can expect to ﬁnd inside the puﬀ,\nwhile Little Caesars’ mark designates its brand. Though the\ncourt found other likelihood-of-confusion factors may favor\nIltaco, it held “the diﬀerence in the marks’ overall impression\n\fNos. 24-3317 et al. 21\n\nprecludes ﬁnding a likelihood of success by the plaintiﬀ on\nlikelihood of confusion.”\n A district court has broad “ﬂexibility to determine what\n[likelihood-of-confusion] factors are most critical in a case.”\nTy, Inc. v. Jones Grp., Inc., 237 F.3d 891, 901 (7th Cir. 2001). And\nbecause the similarity of the marks is one of the most im-\nportant considerations, a district court does not abuse its dis-\ncretion by ﬁnding no likelihood of confusion based on dissim-\nilar marks even when other factors weigh in favor of confu-\nsion. Eli Lilly & Co. v. Nat. Answers, Inc., 233 F.3d 456, 462 (7th\nCir. 2000). Here, the district court made a reasoned determi-\nnation that the two marks were not similar and did not abuse\nits discretion in weighing the similarity factor heavily to ﬁnd\nno likelihood of success in showing likelihood of confusion.\n * \n Because Iltaco did not show it is likely to succeed in prov-\ning that “Pizza Puﬀ” is protectable or rebutting Little Caesars’\nfair use defense at trial, Iltaco has not established a likelihood\nof success on the merits. Accordingly, we do not proceed to\nthe harms-balancing or public interest steps of the prelimi-\nnary injunction analysis. See Grubhub, 80 F.4th at 844 (“[Only]\n[u]pon a showing of [likelihood of success on the merits], the\ncourt weighs the harm of denying an injunction.”).\n The district court abused its discretion by granting the pre-\nliminary injunction as to “Pizza Puﬀ,” but did not abuse its\ndiscretion in denying the injunction regarding “Crazy Puﬀs”\nor “Puﬀ.”\n The judgment of the district court is\n AFFIRMED IN PART AND REVERSED IN PART.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11242195/", "author_raw": "ST. EVE, Circuit Judge"}, {"author": "ST. EVE, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNos. 24-3317, 25-1072, 25-1076 & 25-1112\nILLINOIS TAMALE COMPANY, INC., doing business as ILTACO,\n Plaintiﬀ-Appellee/Cross-Appellant,\n v.\n\nLC TRADEMARKS, INC. and LITTLE CAESAR ENTERPRISES, INC.,\n Defendants-Appellants/Cross-Appellees.\n ____________________\n\n Appeals from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 1:24-cv-05210 — Jeremy C. Daniel, Judge.\n ____________________\n\n ARGUED NOVEMBER 14, 2025 — DECIDED JANUARY 16, 2026\n ____________________\n\n Before SCUDDER, ST. EVE, and JACKSON-AKIWUMI, Circuit\nJudges.\n ST. EVE, Circuit Judge. Illinois Tamale Company, Inc. (“Il-\ntaco”), a Chicago-based food company, brought this trade-\nmark infringement action against LC Trademarks, Inc. and\nLittle Caesar Enterprises, Inc. (collectively “Little Caesars”),\nbased on Little Caesars’ advertising for its “Crazy Puﬀs” food\nproduct. Iltaco claimed Little Caesars’ Crazy Puﬀs product\nand advertising caused a substantial likelihood of confusion\n\f2 Nos. 24-3317 et al.\n\nwith Iltaco’s trademark-protected “Pizza Puﬀ” product. Iltaco\nalso moved for a preliminary injunction to enjoin Little Cae-\nsars from using “Crazy Puﬀ,” “Pizza Puﬀ,” and “Puﬀ” in its\nproduct names and advertising. The district court denied the\npreliminary injunction as to “Crazy Puﬀ” and “Puﬀ,” ﬁnding\nIltaco failed to show suﬃcient likelihood of success in its\ntrademark infringement action regarding those terms, but\ngranted the preliminary injunction as to “Pizza Puﬀ.” Because\nthe district court erred in concluding that Iltaco showed it was\nlikely to succeed on the merits of its trademark infringement\nclaim pertaining to “Pizza Puﬀ,” we reverse that portion of its\ndecision. We aﬃrm the district court’s decision as to “Crazy\nPuﬀ” and “Puﬀ.”\n I. Background\nA. Factual Background\n Iltaco is a Chicago-based food company founded in 1927.\nIn 1976, Iltaco began selling its pizza puﬀ product, which is\nsimilar to a calzone but made from a ﬂour tortilla wrapped\naround pizza toppings and can be fried or baked. Iltaco now\nsells its pizza puﬀs nationwide and has expanded its line of\nstuﬀed sandwich products to include a wide range of ingre-\ndients. Iltaco’s list of registered trademarks includes the\n“Pizza Puff,” “Gyro Puff,” “Ham Breakfast Puff,” “Sausage\nBreakfast Puff,” and “Spinach & Cheese Puff.” Specifically, it\nregistered its “Pizza Puff” trademark on May 26, 2009. It also\nhas a registered trademark for “Puff” as of May 3, 2022. Iltaco\nadvertises its stuffed sandwich products under the “Pizza\nPuff” and “Puff” trademarks.\n Little Caesars is a large chain of pizza restaurants founded\nin the United States with restaurant franchises worldwide. In\n\fNos. 24-3317 et al. 3\n\nMarch 2024, Little Caesars launched its new Crazy Puffs\nproduct in its restaurants throughout the country. Crazy\nPuffs are small, baked pizza dough cups filled with pizza in-\ngredients and topped with cheese. Crazy Puffs join Little Cae-\nsars’ numerous other “Crazy” marks, which the pizza chain\nhas used extensively in its marketing since the 1980s. Little\nCaesars owns numerous federal trademark registrations for\nits various “Crazy” products, and in May 2024 finalized its\nfederal registration for the “Crazy Puffs” mark. 1 Before final-\nizing Little Caesars’ registration, an examining attorney with\nthe U.S. Patent and Trademark Office (“USPTO”) searched\nthe database of registered and pending marks and found no\nlikelihood of confusion between “Crazy Puffs” and any prior\nregistered or pending marks of third parties, including Iltaco.\n Since launching Crazy Puffs, Little Caesars has marketed\nits puffs heavily using its “Little Caesars” trade name and the\nclassic Little Caesars trade dress—the Roman Character logo,\n“Hot-N-Ready” tagline, “Crazy” mark, and bright orange col-\noring. Crazy Puffs marketing materials include a line reading\n“4 Hand-Held Pizza Puffs,” which appears in small print di-\nrectly below “Crazy Puffs.” The phrase “Pizza Puffs” appears\nas part of “4 Hand-Held Pizza Puffs,” which always appears\nin conjunction with the “Crazy Puffs” mark.\n\n\n\n\n 1 Little Caesars disclaimed “Puﬀs” as part of its trademark in compli-\n\nance with a USPTO examining attorney’s advice, meaning Little Caesars\nclaims no rights in that word.\n\f4 Nos. 24-3317 et al.\n\n\n\n\n Little Caesars Crazy Puﬀs Advertisement\n Little Caesars sells Crazy Puffs exclusively through its res-\ntaurants, where customers can purchase them through tradi-\ntional carryout or delivery channels. Little Caesars does not\nsell Crazy Puffs in grocery stores, convenience stores, or\nthird-party restaurants.\nB. Procedural Background\n The present dispute began in April 2024 when Iltaco sent\nLittle Caesars a cease-and-desist letter claiming “Crazy Puﬀs”\nand “4 Hand-Held Pizza Puﬀs” infringed Iltaco’s trademark\nrights in its “Pizza Puﬀ” and “Puﬀ” marks. Little Caesars dis-\nputed the merits of Iltaco’s claims and continued to use both\n“Crazy Puﬀs” and “4 Hand-Held Pizza Puﬀs.”\n On June 21, 2024, Iltaco brought a four count complaint\nagainst Little Caesars, asserting claims under Section 32 of the\nLanham Act, 15 U.S.C. § 1114, for trademark infringement\n(Count I); Section 43(a) of the Lanham Act, § 1125, for false\ndesignation of origin (Count II); the Illinois Uniform Decep-\ntive Trade Practices Act, 815 ILCS 510/1 (Count III); and\n\fNos. 24-3317 et al. 5\n\ncommon law unfair competition (Count IV). On the same day,\nIltaco ﬁled its motion for a preliminary injunction, seeking to\nenjoin Little Caesars from using “Crazy Puﬀs,” “Pizza Puﬀ,”\nand “Puﬀ” in selling its product. After holding an evidentiary\nhearing, the district court granted Iltaco’s motion as to “Pizza\nPuﬀ” and denied it as to “Crazy Puﬀs” and “Puﬀ.” Little Cae-\nsars now appeals the district court’s decision enjoining its use\nof “Pizza Puﬀ,” 2 and Iltaco cross-appeals the district court’s\ndenial of its injunction motion regarding “Crazy Puﬀs” and\n“Puﬀ.”\n II. Legal Standard\n “We review the district court's denial of the motion for a\npreliminary injunction for an abuse of discretion, viewing its\nlegal conclusions de novo, and ﬁndings of fact for clear error.”\nMinocqua Brewing Co. v. Hess, 160 F.4th 849, 851 (7th Cir. 2025)\n(citing Richwine v. Matuszak, 148 F.4th 942, 952 (7th Cir. 2025)).\n A district court may grant a preliminary injunction where\nthe “movant shows that it is likely to succeed on the merits of\n\n\n 2 Little Caesars also purports to appeal the district court’s decision re-\n\ngarding its use of “Puﬀ,” arguing that the district court improperly found\n“Puﬀ” is a protectable mark rather than a generic term. The district court\ndid ﬁnd “Puﬀ” protectable, but also found no likelihood of confusion\nstemming from Little Caesars’ use of “Puﬀ” and accordingly denied the\nmotion for preliminary injunction as to “Puﬀ.” Because the district court\nultimately ruled in Little Caesars’ favor as to “Puﬀ,” Little Caesars cannot\nappeal this favorable decision. See Bd. Of Trs. Of Univ. of Ill. v. Organon\nTeknika Corp. LLC, 614 F.3d 372, 374 (7th Cir. 2010); United States v. Accra\nPac, Inc., 173 F.3d 630, 632 (7th Cir. 1999) (“[A] litigant may not appeal\nfrom unfavorable statements in a judicial opinion, if the judgment was fa-\nvorable.”).\n\f6 Nos. 24-3317 et al.\n\nits claims and that traditional legal remedies would be inade-\nquate, such that it would suﬀer irreparable harm without in-\njunctive relief.” Grubhub Inc. v. Relish Labs LLC, 80 F.4th 835,\n843 (7th Cir. 2023) (citing Life Spine, Inc. v. Aegis Spine, Inc., 8\nF.4th 531, 539 (7th Cir. 2021)). Trademark law affords a rebut-\ntable presumption of irreparable harm to movants who show\nthey are likely to succeed on the merits of their trademark in-\nfringement claims. Id.; § 1116(a). If the movant shows it is\nlikely to succeed on the merits, the court next “weighs the\nharm of denying an injunction to the movant against the harm\nof granting an injunction to the nonmovant.” Grubhub, 80\nF.4th at 844. The court also considers the public interest in\ngranting versus denying the preliminary injunction request.\nLife Spine, 8 F.4th at 539.\n “[A]n applicant for preliminary relief bears a signiﬁcant\nburden,” Ill. Republican Party v. Pritzker, 973 F.3d 760, 763 (7th\nCir. 2020), and must show more than “a mere possibility of\nsuccess” on the merits to prevail, Life Spine, Inc., 8 F.4th at 540.\nIt is not enough, as Iltaco asserts, to show only a “better than\nnegligible” chance of succeeding on the merits. 3 Nken v.\nHolder, 556 U.S. 418, 434 (2009). Of course, the movant “need\nnot show that it deﬁnitely will win the case,” but it “must\n\n\n 3 It is diﬃcult to determine which standard the district court applied.\n\nIf the court applied the “better than negligible standard,” it abused its dis-\ncretion. See Lawson Prods., Inc. v. Avnet, Inc., 782 F.2d 1429, 1437 (7th Cir.\n1986) (“A district judge may abuse his discretion . . . [by applying] an in-\ncorrect preliminary injunction standard.”); see also Arwa Chiropractic, P.C.\nv. Med-Care Diabetic & Med. Supplies, Inc., 961 F.3d 942, 949 (7th Cir. 2020)\n(“A court abuses its discretion when it fails to consider a motion under the\nproper legal standard.”). Even if it applied the correct standard, however,\nthe district court committed other legal errors that require reversal in part.\n\fNos. 24-3317 et al. 7\n\ndemonstrate at a minimum how it proposes to prove the key\nelements of its case.” Grubhub, 80 F.4th at 844.\n III. Discussion\n Trademark law serves the dual purposes of protecting cus-\ntomers’ desires to make informed purchasing decisions based\non familiar, trustworthy marks, and protecting trademark\nowners against misappropriation of marks in which they\nhave invested signiﬁcant time, energy, and resources. See id.\n The Trademark Act of 1946, known as the Lanham Act,\ncodiﬁed at 15 U.S.C. §§ 1051–1141n, governs our analysis.\n“The Lanham Act allows those who employ trade or service\nmarks to register them for exclusive use in commerce.” Sport-\nFuel, Inc. v. PepsiCo, Inc., 932 F.3d 589, 595 (7th Cir. 2019) (cit-\ning KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543\nU.S. 111, 117 (2004)). Under the Lanham Act, a “holder of a\nregistered mark … has a civil action against anyone employ-\ning an imitation of it in commerce when ‘such use is likely to\ncause confusion, or to cause mistake, or to deceive.’” KP Per-\nmanent Make-Up, 543 U.S. at 117 (quoting § 1114(1)(a)). To pre-\nvail on such a claim, the plaintiﬀ must establish that “(1) its\nmark is protectable and (2) the defendant’s use of the mark is\nlikely to cause confusion among consumers.” CAE, Inc. v.\nClean Air Eng’g, Inc., 267 F.3d 660, 673–74 (7th Cir. 2001).\n The Lanham Act also provides aﬃrmative defenses to\ncounter a plaintiﬀ’s claims, including the “fair use” defense.\nSee § 1115(b). The fair use defense “allows individuals to use\notherwise trademarked language in a descriptive sense.”\nSportFuel, 932 F.3d at 595 (citing Packman v. Chi. Trib. Co., 267\nF.3d 628, 639 (7th Cir. 2001)). To raise the fair use defense suc-\ncessfully, a defendant must show that (1) it did not use the\n\f8 Nos. 24-3317 et al.\n\nmark at issue as a trademark, (2) the use is descriptive of its\ngoods, and (3) it used the mark fairly and in good faith.\nSorensen v. WD-40 Co., 792 F.3d 712, 722 (7th Cir. 2015) (citing\n§ 1115(b)(4)); Packman, 267 F.3d at 639.\nA. “Pizza Puﬀ”\n The district court found Iltaco was likely to succeed on the\nmerits of its trademark infringement action for its “Pizza\nPuﬀ” mark. In doing so, the court found Iltaco was likely to\nsucceed in showing “Pizza Puﬀ” was a protectable mark, that\nno fair use defense applied, and that there was substantial\nlikelihood of confusion between both parties’ use of “Pizza\nPuﬀ.” We address the district court’s ﬁndings regarding pro-\ntectability and fair use, 4 and ultimately reverse the prelimi-\nnary injunction on Little Caesars’ use of “Pizza Puﬀ” because\nIltaco failed to meet its burden of establishing a suﬃcient like-\nlihood of success on the merits of its claim.\n 1. Protectability Analysis\n To succeed on a trademark infringement action, the mark\nor marks at issue must be protectable under the Lanham Act\nin the ﬁrst place. Whether a mark is entitled to protection de-\npends upon where it falls on a spectrum of increasing distinc-\ntiveness from (1) generic, (2) descriptive, (3) suggestive,\n(4) arbitrary, or (5) fanciful. Platinum Home Mortg. Corp. v.\nPlatinum Fin. Grp., 149 F.3d 722, 727 (7th Cir. 1998); Packman,\n267 F.3d at 638. We review the district court’s factual\n\n\n\n 4 We are skeptical whether the district court made suﬃcient factual\n\nﬁndings to support its likelihood of confusion analysis. In any event, we\nneed not address likelihood of confusion because we are reversing on\nother grounds.\n\fNos. 24-3317 et al. 9\n\ndetermination of where a mark falls along this spectrum for\nclear error. Mil-Mar Shoe Co. v. Shonac Corp., 75 F.3d 1153,\n1156–57 (7th Cir. 1996) (“[P]lacement of a mark in a particular\ncategory is subject to review for clear error, and thus may be\nset aside only if, after considering all the evidence, we are ‘left\nwith the deﬁnite and ﬁrm conviction that a mistake has been\ncommitted.’” (quoting F. Corp. of N. Am. v. F., Ltd., 903 F.2d\n434, 438 (7th Cir.1990))).\n A trademark infringement action must fail if the mark is\ngeneric and will usually fail if the mark is descriptive. Generic\nterms, which are the terms “commonly used as the name of a\nkind of goods,” Liquid Controls Corp. v. Liquid Control Corp.,\n802 F.2d 934, 936 (7th Cir. 1986), may not be trademark pro-\ntected “under any circumstances,” Miller Brewing Co. v. G.\nHeileman Co., 561 F.2d 75, 79 (7th Cir. 1977). Descriptive terms,\nwhich describe the ingredients, characteristics, or qualities of\nan article, are protected only if the holder can establish that\nthe mark has acquired a secondary meaning. U.S. Pat. &\nTrademark Oﬀ. v. Booking.com B. V., 591 U.S. 549, 553 (2020).\nSecondary meaning attaches to marks that have “achieve[d]\nsigniﬁcance ‘in the minds of the public’ as identifying the ap-\nplicant’s goods or services.” Id. (quoting Wal-Mart Stores, Inc.\nv. Samara Bros., Inc., 529 U.S. 205, 211 (2000)). “Holiday Inn,”\nfor example, describes a vacation accommodation, but most\npeople associate the term with one speciﬁc brand. See also Un-\ncommon, LLC v. Spigen, Inc., 926 F.3d 409, 420 (7th Cir. 2019)\n(“5-Hour Energy . . . describes the caﬀeinated shot, but is\nreadily associated by most customers with one maker.” (in-\nternal quotations omitted)).\n\f10 Nos. 24-3317 et al.\n\n The Lanham Act provides a rebuttable presumption of va-\nlidity 5 for successfully registered trademarks, but the pre-\nsumption “evaporates as soon as evidence of invalidity is pre-\nsented.” Ga.-Pac. Consumer Prods. LP v. Kimberly-Clark Corp.,\n647 F.3d 723, 727 (7th Cir. 2011) (quoting Door Sys., Inc. v. Pro–\nLine Door Sys., Inc., 83 F.3d 169, 172 (7th Cir. 1996)). As rele-\nvant here, an incontestable registered mark—one that has been\nin continuous use for ﬁve years after registration—attains an\neven higher status of legal protection. The defendant may\novercome this strong presumption of validity only by show-\ning the incontestable trademark has become generic. § 1065;\nEco Mfg. LLC. v. Honeywell Int’l, Inc., 357 F.3d 649, 651 (7th Cir.\n2003).\n The district court found Iltaco’s “Pizza Puﬀ” mark was\nprotectable because Little Caesars failed to overcome the pre-\nsumption of protection aﬀorded to incontestable marks. Be-\ncause the court committed several errors in its analysis, and\nbecause Iltaco did not otherwise show it was likely to succeed\nin proving its mark is protectable, we reverse this portion of\nthe court’s decision.\n a. Primary Signiﬁcance Test for Genericness\n Whether a registered mark has become a generic term\nturns on the mark’s “primary signiﬁcance” to the relevant\npublic. § 1064(3) (“The primary signiﬁcance of the registered\nmark to the relevant public ... shall be the test for determining\nwhether the registered mark has become the generic name of\n\n\n 5 “The validity of a mark pertains to whether” a given term “is entitled\n\nto protection under trademark law.” Platinum Home, 149 F.3d at 726. If a\nterm that is the subject of a registered trademark is shown to be unprotect-\nable, the mark is invalid. Id.\n\fNos. 24-3317 et al. 11\n\ngoods or services.”); see also Booking.com, 591 U.S. at 556 (ap-\nplying “primary signiﬁcance” test to determine whether mark\nwas generic). The district court neglected to apply the primary\nsigniﬁcance test here. Instead, it found Iltaco was likely to suc-\nceed in showing its mark was protectable because other\nbrands selling similar products are “able to compete eﬀec-\ntively without using the plaintiﬀ’s ‘PIZZA PUFFS’ mark.” The\ndistrict court drew this standard from Ty Inc. v. Softbelly’s Inc.,\nwhere we explained, in dicta, that ﬁnding a trademark has be-\ncome generic is a “fateful step” that we do not ordinarily take\n“until the trademark has gone so far toward becoming the ex-\nclusive descriptor of the product that sellers of competing\nbrands cannot compete eﬀectively without using the name to\ndesignate the product they are selling.” 353 F.3d 528, 531 (7th\nCir. 2003). Because Iltaco provided examples of other brands\nproducing similar products that competed eﬀectively without\nusing “Pizza Puﬀ” (e.g., Hot Pockets, Totino’s Pizza Rolls,\nJimmy Dean Toaster Pop-Ups), the district court found the\nmark had not become the “exclusive descriptor” of the prod-\nuct and therefore was not generic under Ty.\n Our language in Ty may explain one reason why generic\nmarks are not protectable—i.e., because protecting generic\nmarks would stymie competition from sellers of similar prod-\nucts unable to suﬃciently describe their product. But it is not\nthe correct test for genericness. The plain language of the Lan-\nham Act, Supreme Court precedent, and even a previous par-\nagraph in Ty explain that we assess the mark’s primary sig-\nniﬁcance to determine whether it has become generic and\nthus unprotectable under the Lanham Act. See § 1064(3); Book-\ning.com, 591 U.S. at 556; Ty, 353 F.3d at 530–31 (“[T]he legal\ntest of genericness is ‘primary signiﬁcance.’”). A term need\nnot be the exclusive descriptor of a product to become generic.\n\f12 Nos. 24-3317 et al.\n\nRather, a trademark plaintiﬀ “may not prevent [the] defend-\nant from using [a mark] simply because there are other titles\ndefendant could use.” Tech. Publ’g Co. v. Lebhar-Friedman, Inc.,\n729 F.2d 1136, 1141 (7th Cir 1984); 6 see also 2 J. Thomas McCar-\nthy, McCarthy on Trademarks and Unfair Competition § 12:9\n(2006) (“Any product may have many generic designations.\nAny one of those is incapable of trademark signiﬁcance.”). A\ngeneric term is not made less generic by the availability of\nother terms. Tech. Publ’g Co., 729 F.2d at 1141. If we held oth-\nerwise, we would “extend protection to a generic term, a re-\nsult clearly at odds with trademark law.” Id. Because the dis-\ntrict court failed to apply the correct legal test––the primary\nsigniﬁcance test––to determine genericness, the district court\nerred.\n b. Primary Signiﬁcance of “Pizza Puﬀ”\n Viewed under the correct standard, the issue is whether\nthe primary signiﬁcance of “Pizza Puﬀ” to consumers is as a\ngeneric term describing a class of products or a distinctive\nterm indicating association with a particular brand.\n\n\n\n 6 Iltaco attempts to distinguish Technical Publishing Co. because it dealt\n\nwith a magazine title, and “[m]agazines diﬀer from other goods[] in that\ntheir title is a primary means of conveying their content,” so “[c]ourts con-\nfronted with similar trade journal disputes have held consistently that ti-\ntles consisting of the trade name and an indication of the type of publica-\ntion are generic.” 729 F.2d at 1140. But the distinction we drew between\nmagazines and other goods related only to our classiﬁcation of magazine\ntitles as generic or descriptive terms; it did not extend to the test we apply\nto determine whether a mark has become generic. Id. Elsewhere in the\nopinion, we conﬁrmed “[t]he test in determining whether a magazine title\nis generic is no diﬀerent than that applied in determining whether any\nother mark is generic.” Id.\n\fNos. 24-3317 et al. 13\n\nBooking.com, 591 U.S. at 560–61. To determine the primary sig-\nniﬁcance of a term, the court may consider “consumer sur-\nveys, … dictionaries, usage by consumers and competitors,\nand any other source of evidence bearing on how consumers\nperceive a term’s meaning.” Id. at 561 n.6.\n Little Caesars presented extensive evidence to show that\nthe primary signiﬁcance of Iltaco’s incontestable 7 “Pizza Puﬀ”\nmark to consumers is as a generic term. First, Little Caesars\npresented the results of a Teﬂon survey, 8 showing 83.3% of\nconsumers of dough-based, pizza-ingredient-ﬁlled foods per-\nceive “pizza puﬀ” as a common (i.e., generic) term, while only\n12.7% perceive the term as a brand name. The district court\ndismissed this strong evidence of genericness by ﬁnding it\nwas “not conclusive” because in Ty we said, in dicta, that as\nfew as ten percent of consumers associating a mark with an\nowner’s brand could result in consumer confusion. 353 F.3d\nat 531. We cannot accept that ten percent of consumers is a\nrelevant percentage for the genericness test, which focuses on\nthe “primary signiﬁcance” of a product to consumers. “[I]f a\nsurvey showed that 75 percent of the public regard the word\nas generic, then that is its majority usage and its ‘principal sig-\nniﬁcance.’” McCarthy § 12:6. Primary signiﬁcance requires far\n\n\n 7 Iltaco registered its “Pizza Puﬀ” mark in 2009, well over ﬁve years\n\nago, and has used it consistently since, so it has now become incontestable.\nThe parties agree this mark is incontestable.\n 8 Teﬂon surveys are the “most judicially accepted format for testing for\n\ngenericness.” McCarthy § 12:16. In a Teﬂon survey, the survey “begins\nwith a brief lesson explaining the diﬀerence between brand names and\ncommon names. It then asks respondents to classify a series of words, in-\ncluding the trademark at issue, as either brand names or common names.”\nElliott v. Google, Inc., 860 F.3d 1151, 1160 n.7 (9th Cir. 2017).\n\f14 Nos. 24-3317 et al.\n\nmore than ten percent. The court thus erred when it found\nLittle Caesars’ evidence inconclusive based on this inapplica-\nble statement of the law. Viewed properly, survey data show-\ning over 80 percent of relevant consumers perceive “pizza\npuﬀ” as a generic term presents strong evidence of its gener-\nicness. See McCarthy § 12:6.\n Little Caesars also presented several deﬁnitions of “pizza\npuﬀ” drawn from crowd-sourced dictionaries to show the\nterm has acquired a generic meaning. Deﬁnitions.net de-\nscribes a pizza puﬀ as “A dough pouch ﬁlled with the ingre-\ndients of a pizza, such as cheese, pizza sauce, sausage, and\npepperoni, and usually deep fried.” Kiddle Encyclopedia (an\nonline encyclopedia for kids) describes a pizza puﬀ as “A\ndeep-fried dough pocket ﬁlled with cheese, tomato sauce, and\nother pizza ingredients such as sausage or pepperoni.”\nThough the district court did not address these proﬀered\npizza puﬀ deﬁnitions, Iltaco argues on appeal that the crowd-\nsourced dictionary deﬁnitions are unreliable evidence be-\ncause anyone can edit an online crowd-sourced dictionary.\nBut Little Caesars introduced these deﬁnitions to show how\nthe public uses and perceives the term “pizza puﬀ.” Our ge-\nnericness analysis inquires into the primary signiﬁcance of a\nterm to the public, not its unequivocal technical deﬁnition. 9\n\n 9 A number of federal courts have found crowd-sourced deﬁnitions\n\nunreliable and even inadmissible as evidence of a term’s technical deﬁni-\ntion or as the basis for an expert’s testimony. See, e.g., Badasa v. Mukasey,\n540 F.3d 909, 909 (8th Cir. 2008) (noting Wikipedia deﬁnition of an Ethio-\npian travel document was unreliable evidence of party’s immigration sta-\ntus); Advanced Mech. Servs., Inc. v. Auto-Owners Ins. Co., No. 14-CV-388,\n2017 WL 3381366, at 4 (W.D. Ky. Aug. 4, 2017) (ﬁnding expert witness’s\nopinion inadmissible because expert relied on Wikipedia deﬁnition);\n\fNos. 24-3317 et al. 15\n\nCrowd-sourced dictionary deﬁnitions inform that question,\nso they are relevant to our analysis and weigh in favor of ge-\nnericness. Still, the fact that anyone can edit a crowd-sourced\ndictionary deﬁnition bears on the weight of Little Caesars’\ndictionary evidence.\n The district court acknowledged, though did not analyze,\nevidence Little Caesars introduced of third parties using\n“pizza puﬀ” in their USPTO applications and registrations to\nindicate the term has widespread generic use in the industry.\nWe have found third-party registrations probative of a term’s\nwidespread descriptive use where over ﬁfty third-party reg-\nistrations used the same term to describe a similar quality. See\nSpraying Sys. Co. v. Delevan, Inc., 975 F.2d 387, 393 (7th Cir.\n1992) (ﬁnding the suﬃx “JET” descriptive of a hose product\nbased in part on ﬁfty other registrations using “JET” to de-\nscribe similar high-velocity water stream products). Here, the\nﬁve USPTO registrations cited by Little Caesars may not be\ndispositive on their own, but together with consumer survey\n\n\nFleishman v. Cont'l Cas. Co., No. 09 C 414, 2011 WL 5866264, at 4 (N.D. Ill.\nNov. 22, 2011) (ﬁnding inadmissible Wikipedia deﬁnition of “aneurysm”\nas evidence of plaintiﬀ’s injury). Similarly, the Fourth Circuit found a\nSixth Amendment violation in a criminal trial where the jury inde-\npendently obtained and considered a Wikipedia deﬁnition of an element\nof the crime at issue. United States v. Lawson, 677 F.3d 629, 641 (4th Cir.\n2012). But where a crowdsourced deﬁnition is oﬀered to show the signiﬁ-\ncance of that term to members of the public, at least one federal court has\nrelied upon the deﬁnition. See Hawkins v. City of Phila., 571 F. Supp. 3d 455,\n458 (E.D. Pa. 2021) (relying on crowd-sourced dictionary’s deﬁnition of a\nslang term). Thus, while crowd-sourced dictionary deﬁnitions may unre-\nliably evince a term’s correct or technical deﬁnition, they more reliably\nrepresent what a term means to members of the public, which is what the\ngenericness analysis is concerned about.\n\f16 Nos. 24-3317 et al.\n\nand dictionary evidence the USPTO registrations indicate\nother producers of similar products primarily think of “pizza\npuﬀ” as a name for a class of foods rather than a particular\nbrand within that class.\n Iltaco’s arguments to the contrary—that the USPTO de-\nscriptions are unreliable evidence and that they do not apply\nbecause some of the marks using “pizza puﬀ” as a descriptor\nare inactive—do not counter this evidence. Iltaco relies on a\ndistrict court decision stating that USPTO registrations are not\nsuﬃciently reliable for the court to take judicial notice of\nthem, not that they are unreliable evidence altogether. Face-\nbook, Inc. v. Teachbook.com LLC, 819 F. Supp. 2d 764, 772 (N.D.\nIll. 2011). And USPTO registrations using “pizza puﬀ” are\nprobative of how other companies in the food industry use\nthat term even if they are inactive. Spraying Sys., 975 F.2d at\n393 (“[T]hose [registered trademarks] that are not [in current\nuse] can still be probative on the issue of descriptiveness.”).\n Not all of Little Caesars’ evidence of genericness is as com-\npelling. Online recipes for pizza puﬀs have low evidentiary\nvalue because the internet is replete with copycat recipes\nteaching home cooks how to replicate popular, often trade-\nmarked, dishes at home (e.g., recipes for homemade Hot-\nPockets, Pop-Tarts, etc.). 10 Little Caesars also introduced evi-\ndence of menus listing “pizza puﬀ” alongside generic food\n\n\n\n 10 See Illinois Tamale Co. v. El-Greg, Inc., No. 16 C 5387, 2018 WL 1534971\n\nat 5 (N.D. Ill. Mar. 29, 2018) (“There are also thousands of recipes for a\nhomemade version of Hot Pockets, another speciﬁc brand of stuﬀed sand-\nwich. The existence of such recipes does not necessarily suggest that ‘Hot\nPockets’ is a generic term [but rather] that Hot Pockets are a well-known\nbrand that home cooks want to replicate.” (citation modiﬁed)).\n\fNos. 24-3317 et al. 17\n\nitems, indicating the term is used widely in the industry as a\ngeneric term. See Miller Brewing, 561 F.2d at 80 (ﬁnding “light”\ngeneric in part because it is “widely used in the beer indus-\ntry”). These menus provide some support for genericness, but\nunlike the evidence in Miller Brewing showing others in the\nbeer industry used “light” to describe their own distinct prod-\nucts, it is unclear whether the menus Little Caesars cited refer\nto the restaurants’ own products or to Iltaco’s, given Iltaco\nsells its food products to third-party restaurants. Little Cae-\nsars nevertheless contends the menus support genericness be-\ncause placing “pizza puﬀ” alongside generic terms like\n“fries” and “hot dog” must mean “pizza puﬀ” is generic. But\nagain, because Little Caesars did not show 11 the menus refer-\nenced anything but Iltaco’s product, they do not necessarily\nshow others in the industry do not associate “pizza puﬀ” with\nIltaco.\n Even so, the district court ultimately erred by ﬁnding Il-\ntaco was likely to succeed in showing “Pizza Puﬀ” is protect-\nable because the court failed to apply the primary signiﬁcance\ntest and the record did not support its ﬁnal decision. Little\nCaesars’ consumer survey data, dictionary deﬁnitions, and\nUSPTO registrations showing generic usage were suﬃcient to\novercome the presumption of trademark validity, and Iltaco\ndid not show how it could overcome this evidence at trial to\nprove “Pizza Puﬀ” is a protectable mark. Iltaco thus failed to\ncarry its burden of showing a likelihood of success on the\n\n\n 11 Little Caesars must make an aﬃrmative showing because it bears\n\nthe burden of overcoming the presumption of protectability inherent to\nincontestable marks. See Liquid Controls, 802 F.2d at 936 (“The burden is on\nthe defendant to overcome the presumption.”).\n\f18 Nos. 24-3317 et al.\n\nmerits, so the district court should not have granted its motion\nfor preliminary injunction.\n 2. Fair Use Analysis\n Even if “Pizza Puﬀ” is suﬃciently distinctive to merit pro-\ntection under the Lanham Act, Iltaco cannot prevail without\nshowing how it will successfully counter Little Caesars’ fair\nuse defense. A defendant in a trademark infringement case\nmay invoke the “fair use” defense by demonstrating that (1) it\nused the phrase at issue in a non-trademark capacity, (2) the\nphrase is descriptive of its goods and services, and (3) it used\nthe phrase “fairly and in good faith” only to describe its\ngoods. § 1115(b)(4); see also Sands, Taylor & Wood Co. v. Quaker\nOats Co., 978 F.2d 947, 951 (7th Cir. 1992); Packman, 267 F.3d at\n639.\n Little Caesars asserted a fair use defense in response to Il-\ntaco’s preliminary injunction motion, but the district court re-\njected the defense based on the second prong, 12 explaining:\n The defendants have not shown that “PIZZA PUFFS”\n is descriptive of their goods. The defendants[’] product\n looks like a mini-pizza or a pizza muﬃn or a pizza cup-\n cake or a pizza bite. It is not apparent what part of the\n defendants’ product is a puﬀ, which means that the\n mark is not descriptive of the defendants’ goods.\n The district court erred in reaching this conclusion be-\ncause it misapplied the relevant legal standard to determine\nwhether “Pizza Puﬀ” is descriptive of Little Caesars’ product.\nThe district court mistakenly required Little Caesars’ product\n\n\n 12 Because the district court did not address the ﬁrst or third prongs\n\nof fair use, we do not address them here.\n\fNos. 24-3317 et al. 19\n\nto be a pizza puﬀ for the term to apply descriptively. In fact,\nthe term need only refer to a characteristic of the product.\nF. Corp., 903 F.2d at 444. We identiﬁed a similar problem in\nQuaker Oats, where the district court erred by requiring a de-\nscriptive term to “bring to mind the product in question.” 978\nF.2d at 952. We explained “it is not necessary that a descrip-\ntive term depict the [product] itself, but only that the term re-\nfer to a characteristic of the [product].” Id. (quoting F. Corp., 903\nF.2d at 444). The district court should have considered\nwhether “Pizza Puﬀ” fairly described a characteristic or qual-\nity of Little Caesars’ Crazy Puﬀs product, not whether Crazy\nPuﬀs are pizza puﬀs.\n Under the correct test, the district court’s determination\nthat “Pizza Puﬀ” is not descriptive falls short. A Little Caesars\nrepresentative testiﬁed that “Crazy Puﬀs” are “light and airy\nmuﬃns” that are “puﬀy.” No one disputes that Crazy Puﬀs\nare ﬁlled with pizza ingredients like cheese, tomato sauce,\nmeat, and vegetables. This evidence fairly shows that “Pizza\nPuﬀ” describes a Crazy Puﬀ, which is a puﬀy and airy muﬃn\ncontaining pizza ingredients. And “Pizza Puﬀ” appears as\npart of the phrase “4 Hand-Held Pizza Puﬀs,” which is clearly\ndescribing the quantity, size, and type of food customers can\nexpect when they purchase a Crazy Puﬀ. The district court\ndid not consider this evidence or explain how Iltaco could\ncounter it at trial. Because the district court applied the wrong\nstandard, the district court abused its discretion in granting\nthe preliminary injunction for “Pizza Puﬀ.” See Lawson Prods.,\n782 F.2d at 1437 (“[A] factual or legal error may alone be suf-\nﬁcient to establish that the court ‘abused its discretion’ in\nmaking its ﬁnal determination.”).\n\f20 Nos. 24-3317 et al.\n\nB. “Crazy Puﬀs” and “Puﬀ”\n The district court found Iltaco failed to meet its burden\nwith respect to Little Caesars’ use of its “Crazy Puﬀs” mark\nbecause Iltaco did not show there was a likelihood of confu-\nsion between Little Caesars’ “Crazy Puﬀs” mark and Iltaco’s\n“Pizza Puﬀ” or “Puﬀ” marks. The court did not clearly err in\neither determination, so we aﬃrm its decision regarding both\nmarks.\n The district court correctly rejected Iltaco’s suggestion that\n“Crazy Puﬀs” and “Pizza Puﬀ” were confusingly similar be-\ncause both contain the word “Puﬀ.” When evaluating the like-\nlihood of confusion between marks, “we must keep in mind\nthat ‘[t]he commercial impression of a trade-mark is derived\nfrom it as a whole, not from its elements separated and con-\nsidered in detail.’” Grubhub, 80 F.4th at 848 (quoting Est. of\nP.D. Beckwith, Inc. v. Comm'r of Pats., 252 U.S. 538, 545–46\n(1920)). Thus, we cannot look at “Puﬀ” (from “Crazy Puﬀs”)\nin isolation and ﬁnd it confusingly similar to “Puﬀ” in Iltaco’s\n“Pizza Puﬀ” name. We must consider the “Crazy Puﬀs” mark\nin its entirety, as the district court rightly explained.\n Viewing the “Crazy Puﬀs” mark as a whole, the district\ncourt did not err in ﬁnding no likelihood of confusion with\n“Pizza Puﬀ.” The court found the two terms are signiﬁcantly\ndiﬀerent because Iltaco’s mark denotes the ingredients found\nin the product while Little Caesars’ mark uses “Crazy” to tie\nits product to its own family of Crazy marks. Iltaco’s mark\ndescribes what a consumer can expect to ﬁnd inside the puﬀ,\nwhile Little Caesars’ mark designates its brand. Though the\ncourt found other likelihood-of-confusion factors may favor\nIltaco, it held “the diﬀerence in the marks’ overall impression\n\fNos. 24-3317 et al. 21\n\nprecludes ﬁnding a likelihood of success by the plaintiﬀ on\nlikelihood of confusion.”\n A district court has broad “ﬂexibility to determine what\n[likelihood-of-confusion] factors are most critical in a case.”\nTy, Inc. v. Jones Grp., Inc., 237 F.3d 891, 901 (7th Cir. 2001). And\nbecause the similarity of the marks is one of the most im-\nportant considerations, a district court does not abuse its dis-\ncretion by ﬁnding no likelihood of confusion based on dissim-\nilar marks even when other factors weigh in favor of confu-\nsion. Eli Lilly & Co. v. Nat. Answers, Inc., 233 F.3d 456, 462 (7th\nCir. 2000). Here, the district court made a reasoned determi-\nnation that the two marks were not similar and did not abuse\nits discretion in weighing the similarity factor heavily to ﬁnd\nno likelihood of success in showing likelihood of confusion.\n * * *\n Because Iltaco did not show it is likely to succeed in prov-\ning that “Pizza Puﬀ” is protectable or rebutting Little Caesars’\nfair use defense at trial, Iltaco has not established a likelihood\nof success on the merits. Accordingly, we do not proceed to\nthe harms-balancing or public interest steps of the prelimi-\nnary injunction analysis. See Grubhub, 80 F.4th at 844 (“[Only]\n[u]pon a showing of [likelihood of success on the merits], the\ncourt weighs the harm of denying an injunction.”).\n The district court abused its discretion by granting the pre-\nliminary injunction as to “Pizza Puﬀ,” but did not abuse its\ndiscretion in denying the injunction regarding “Crazy Puﬀs”\nor “Puﬀ.”\n The judgment of the district court is\n AFFIRMED IN PART AND REVERSED IN PART.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11242195/", "author_raw": "ST. EVE, Circuit Judge"}]}	SCUDDER	ST EVE	JACKSON-AKIWUMI	1		{"SCUDDER": ", Circuit", "ST EVE": ", Circuit", "JACKSON-AKIWUMI": ", Circuit"}	2	0	0	2	null	https://www.courtlistener.com/api/rest/v4/clusters/10775608/	Published	2	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,775,609	Illinois Tamale Company, Inc. v. LC Trademarks, Inc.	2026-01-16	24-3317	U.S. Court of Appeals for the Seventh Circuit	{"judges": "Before SCUDDER, ST. EVE, and JACKSON-AKIWUMI, Circuit Judges.", "parties": "", "opinions": [{"author": "ST. EVE, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNos. 24-3317, 25-1072, 25-1076 & 25-1112\nILLINOIS TAMALE COMPANY, INC., doing business as ILTACO,\n Plaintiﬀ-Appellee/Cross-Appellant,\n v.\n\nLC TRADEMARKS, INC. and LITTLE CAESAR ENTERPRISES, INC.,\n Defendants-Appellants/Cross-Appellees.\n ____________________\n\n Appeals from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 1:24-cv-05210 — Jeremy C. Daniel, Judge.\n ____________________\n\n ARGUED NOVEMBER 14, 2025 — DECIDED JANUARY 16, 2026\n ____________________\n\n Before SCUDDER, ST. EVE, and JACKSON-AKIWUMI, Circuit\nJudges.\n ST. EVE, Circuit Judge. Illinois Tamale Company, Inc. (“Il-\ntaco”), a Chicago-based food company, brought this trade-\nmark infringement action against LC Trademarks, Inc. and\nLittle Caesar Enterprises, Inc. (collectively “Little Caesars”),\nbased on Little Caesars’ advertising for its “Crazy Puﬀs” food\nproduct. Iltaco claimed Little Caesars’ Crazy Puﬀs product\nand advertising caused a substantial likelihood of confusion\n\f2 Nos. 24-3317 et al.\n\nwith Iltaco’s trademark-protected “Pizza Puﬀ” product. Iltaco\nalso moved for a preliminary injunction to enjoin Little Cae-\nsars from using “Crazy Puﬀ,” “Pizza Puﬀ,” and “Puﬀ” in its\nproduct names and advertising. The district court denied the\npreliminary injunction as to “Crazy Puﬀ” and “Puﬀ,” ﬁnding\nIltaco failed to show suﬃcient likelihood of success in its\ntrademark infringement action regarding those terms, but\ngranted the preliminary injunction as to “Pizza Puﬀ.” Because\nthe district court erred in concluding that Iltaco showed it was\nlikely to succeed on the merits of its trademark infringement\nclaim pertaining to “Pizza Puﬀ,” we reverse that portion of its\ndecision. We aﬃrm the district court’s decision as to “Crazy\nPuﬀ” and “Puﬀ.”\n I. Background\nA. Factual Background\n Iltaco is a Chicago-based food company founded in 1927.\nIn 1976, Iltaco began selling its pizza puﬀ product, which is\nsimilar to a calzone but made from a ﬂour tortilla wrapped\naround pizza toppings and can be fried or baked. Iltaco now\nsells its pizza puﬀs nationwide and has expanded its line of\nstuﬀed sandwich products to include a wide range of ingre-\ndients. Iltaco’s list of registered trademarks includes the\n“Pizza Puff,” “Gyro Puff,” “Ham Breakfast Puff,” “Sausage\nBreakfast Puff,” and “Spinach & Cheese Puff.” Specifically, it\nregistered its “Pizza Puff” trademark on May 26, 2009. It also\nhas a registered trademark for “Puff” as of May 3, 2022. Iltaco\nadvertises its stuffed sandwich products under the “Pizza\nPuff” and “Puff” trademarks.\n Little Caesars is a large chain of pizza restaurants founded\nin the United States with restaurant franchises worldwide. In\n\fNos. 24-3317 et al. 3\n\nMarch 2024, Little Caesars launched its new Crazy Puffs\nproduct in its restaurants throughout the country. Crazy\nPuffs are small, baked pizza dough cups filled with pizza in-\ngredients and topped with cheese. Crazy Puffs join Little Cae-\nsars’ numerous other “Crazy” marks, which the pizza chain\nhas used extensively in its marketing since the 1980s. Little\nCaesars owns numerous federal trademark registrations for\nits various “Crazy” products, and in May 2024 finalized its\nfederal registration for the “Crazy Puffs” mark. 1 Before final-\nizing Little Caesars’ registration, an examining attorney with\nthe U.S. Patent and Trademark Office (“USPTO”) searched\nthe database of registered and pending marks and found no\nlikelihood of confusion between “Crazy Puffs” and any prior\nregistered or pending marks of third parties, including Iltaco.\n Since launching Crazy Puffs, Little Caesars has marketed\nits puffs heavily using its “Little Caesars” trade name and the\nclassic Little Caesars trade dress—the Roman Character logo,\n“Hot-N-Ready” tagline, “Crazy” mark, and bright orange col-\noring. Crazy Puffs marketing materials include a line reading\n“4 Hand-Held Pizza Puffs,” which appears in small print di-\nrectly below “Crazy Puffs.” The phrase “Pizza Puffs” appears\nas part of “4 Hand-Held Pizza Puffs,” which always appears\nin conjunction with the “Crazy Puffs” mark.\n\n\n\n\n 1 Little Caesars disclaimed “Puﬀs” as part of its trademark in compli-\n\nance with a USPTO examining attorney’s advice, meaning Little Caesars\nclaims no rights in that word.\n\f4 Nos. 24-3317 et al.\n\n\n\n\n Little Caesars Crazy Puﬀs Advertisement\n Little Caesars sells Crazy Puffs exclusively through its res-\ntaurants, where customers can purchase them through tradi-\ntional carryout or delivery channels. Little Caesars does not\nsell Crazy Puffs in grocery stores, convenience stores, or\nthird-party restaurants.\nB. Procedural Background\n The present dispute began in April 2024 when Iltaco sent\nLittle Caesars a cease-and-desist letter claiming “Crazy Puﬀs”\nand “4 Hand-Held Pizza Puﬀs” infringed Iltaco’s trademark\nrights in its “Pizza Puﬀ” and “Puﬀ” marks. Little Caesars dis-\nputed the merits of Iltaco’s claims and continued to use both\n“Crazy Puﬀs” and “4 Hand-Held Pizza Puﬀs.”\n On June 21, 2024, Iltaco brought a four count complaint\nagainst Little Caesars, asserting claims under Section 32 of the\nLanham Act, 15 U.S.C. § 1114, for trademark infringement\n(Count I); Section 43(a) of the Lanham Act, § 1125, for false\ndesignation of origin (Count II); the Illinois Uniform Decep-\ntive Trade Practices Act, 815 ILCS 510/1 (Count III); and\n\fNos. 24-3317 et al. 5\n\ncommon law unfair competition (Count IV). On the same day,\nIltaco ﬁled its motion for a preliminary injunction, seeking to\nenjoin Little Caesars from using “Crazy Puﬀs,” “Pizza Puﬀ,”\nand “Puﬀ” in selling its product. After holding an evidentiary\nhearing, the district court granted Iltaco’s motion as to “Pizza\nPuﬀ” and denied it as to “Crazy Puﬀs” and “Puﬀ.” Little Cae-\nsars now appeals the district court’s decision enjoining its use\nof “Pizza Puﬀ,” 2 and Iltaco cross-appeals the district court’s\ndenial of its injunction motion regarding “Crazy Puﬀs” and\n“Puﬀ.”\n II. Legal Standard\n “We review the district court's denial of the motion for a\npreliminary injunction for an abuse of discretion, viewing its\nlegal conclusions de novo, and ﬁndings of fact for clear error.”\nMinocqua Brewing Co. v. Hess, 160 F.4th 849, 851 (7th Cir. 2025)\n(citing Richwine v. Matuszak, 148 F.4th 942, 952 (7th Cir. 2025)).\n A district court may grant a preliminary injunction where\nthe “movant shows that it is likely to succeed on the merits of\n\n\n 2 Little Caesars also purports to appeal the district court’s decision re-\n\ngarding its use of “Puﬀ,” arguing that the district court improperly found\n“Puﬀ” is a protectable mark rather than a generic term. The district court\ndid ﬁnd “Puﬀ” protectable, but also found no likelihood of confusion\nstemming from Little Caesars’ use of “Puﬀ” and accordingly denied the\nmotion for preliminary injunction as to “Puﬀ.” Because the district court\nultimately ruled in Little Caesars’ favor as to “Puﬀ,” Little Caesars cannot\nappeal this favorable decision. See Bd. Of Trs. Of Univ. of Ill. v. Organon\nTeknika Corp. LLC, 614 F.3d 372, 374 (7th Cir. 2010); United States v. Accra\nPac, Inc., 173 F.3d 630, 632 (7th Cir. 1999) (“[A] litigant may not appeal\nfrom unfavorable statements in a judicial opinion, if the judgment was fa-\nvorable.”).\n\f6 Nos. 24-3317 et al.\n\nits claims and that traditional legal remedies would be inade-\nquate, such that it would suﬀer irreparable harm without in-\njunctive relief.” Grubhub Inc. v. Relish Labs LLC, 80 F.4th 835,\n843 (7th Cir. 2023) (citing Life Spine, Inc. v. Aegis Spine, Inc., 8\nF.4th 531, 539 (7th Cir. 2021)). Trademark law affords a rebut-\ntable presumption of irreparable harm to movants who show\nthey are likely to succeed on the merits of their trademark in-\nfringement claims. Id.; § 1116(a). If the movant shows it is\nlikely to succeed on the merits, the court next “weighs the\nharm of denying an injunction to the movant against the harm\nof granting an injunction to the nonmovant.” Grubhub, 80\nF.4th at 844. The court also considers the public interest in\ngranting versus denying the preliminary injunction request.\nLife Spine, 8 F.4th at 539.\n “[A]n applicant for preliminary relief bears a signiﬁcant\nburden,” Ill. Republican Party v. Pritzker, 973 F.3d 760, 763 (7th\nCir. 2020), and must show more than “a mere possibility of\nsuccess” on the merits to prevail, Life Spine, Inc., 8 F.4th at 540.\nIt is not enough, as Iltaco asserts, to show only a “better than\nnegligible” chance of succeeding on the merits. 3 Nken v.\nHolder, 556 U.S. 418, 434 (2009). Of course, the movant “need\nnot show that it deﬁnitely will win the case,” but it “must\n\n\n 3 It is diﬃcult to determine which standard the district court applied.\n\nIf the court applied the “better than negligible standard,” it abused its dis-\ncretion. See Lawson Prods., Inc. v. Avnet, Inc., 782 F.2d 1429, 1437 (7th Cir.\n1986) (“A district judge may abuse his discretion . . . [by applying] an in-\ncorrect preliminary injunction standard.”); see also Arwa Chiropractic, P.C.\nv. Med-Care Diabetic & Med. Supplies, Inc., 961 F.3d 942, 949 (7th Cir. 2020)\n(“A court abuses its discretion when it fails to consider a motion under the\nproper legal standard.”). Even if it applied the correct standard, however,\nthe district court committed other legal errors that require reversal in part.\n\fNos. 24-3317 et al. 7\n\ndemonstrate at a minimum how it proposes to prove the key\nelements of its case.” Grubhub, 80 F.4th at 844.\n III. Discussion\n Trademark law serves the dual purposes of protecting cus-\ntomers’ desires to make informed purchasing decisions based\non familiar, trustworthy marks, and protecting trademark\nowners against misappropriation of marks in which they\nhave invested signiﬁcant time, energy, and resources. See id.\n The Trademark Act of 1946, known as the Lanham Act,\ncodiﬁed at 15 U.S.C. §§ 1051–1141n, governs our analysis.\n“The Lanham Act allows those who employ trade or service\nmarks to register them for exclusive use in commerce.” Sport-\nFuel, Inc. v. PepsiCo, Inc., 932 F.3d 589, 595 (7th Cir. 2019) (cit-\ning KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543\nU.S. 111, 117 (2004)). Under the Lanham Act, a “holder of a\nregistered mark … has a civil action against anyone employ-\ning an imitation of it in commerce when ‘such use is likely to\ncause confusion, or to cause mistake, or to deceive.’” KP Per-\nmanent Make-Up, 543 U.S. at 117 (quoting § 1114(1)(a)). To pre-\nvail on such a claim, the plaintiﬀ must establish that “(1) its\nmark is protectable and (2) the defendant’s use of the mark is\nlikely to cause confusion among consumers.” CAE, Inc. v.\nClean Air Eng’g, Inc., 267 F.3d 660, 673–74 (7th Cir. 2001).\n The Lanham Act also provides aﬃrmative defenses to\ncounter a plaintiﬀ’s claims, including the “fair use” defense.\nSee § 1115(b). The fair use defense “allows individuals to use\notherwise trademarked language in a descriptive sense.”\nSportFuel, 932 F.3d at 595 (citing Packman v. Chi. Trib. Co., 267\nF.3d 628, 639 (7th Cir. 2001)). To raise the fair use defense suc-\ncessfully, a defendant must show that (1) it did not use the\n\f8 Nos. 24-3317 et al.\n\nmark at issue as a trademark, (2) the use is descriptive of its\ngoods, and (3) it used the mark fairly and in good faith.\nSorensen v. WD-40 Co., 792 F.3d 712, 722 (7th Cir. 2015) (citing\n§ 1115(b)(4)); Packman, 267 F.3d at 639.\nA. “Pizza Puﬀ”\n The district court found Iltaco was likely to succeed on the\nmerits of its trademark infringement action for its “Pizza\nPuﬀ” mark. In doing so, the court found Iltaco was likely to\nsucceed in showing “Pizza Puﬀ” was a protectable mark, that\nno fair use defense applied, and that there was substantial\nlikelihood of confusion between both parties’ use of “Pizza\nPuﬀ.” We address the district court’s ﬁndings regarding pro-\ntectability and fair use, 4 and ultimately reverse the prelimi-\nnary injunction on Little Caesars’ use of “Pizza Puﬀ” because\nIltaco failed to meet its burden of establishing a suﬃcient like-\nlihood of success on the merits of its claim.\n 1. Protectability Analysis\n To succeed on a trademark infringement action, the mark\nor marks at issue must be protectable under the Lanham Act\nin the ﬁrst place. Whether a mark is entitled to protection de-\npends upon where it falls on a spectrum of increasing distinc-\ntiveness from (1) generic, (2) descriptive, (3) suggestive,\n(4) arbitrary, or (5) fanciful. Platinum Home Mortg. Corp. v.\nPlatinum Fin. Grp., 149 F.3d 722, 727 (7th Cir. 1998); Packman,\n267 F.3d at 638. We review the district court’s factual\n\n\n\n 4 We are skeptical whether the district court made suﬃcient factual\n\nﬁndings to support its likelihood of confusion analysis. In any event, we\nneed not address likelihood of confusion because we are reversing on\nother grounds.\n\fNos. 24-3317 et al. 9\n\ndetermination of where a mark falls along this spectrum for\nclear error. Mil-Mar Shoe Co. v. Shonac Corp., 75 F.3d 1153,\n1156–57 (7th Cir. 1996) (“[P]lacement of a mark in a particular\ncategory is subject to review for clear error, and thus may be\nset aside only if, after considering all the evidence, we are ‘left\nwith the deﬁnite and ﬁrm conviction that a mistake has been\ncommitted.’” (quoting F. Corp. of N. Am. v. F., Ltd., 903 F.2d\n434, 438 (7th Cir.1990))).\n A trademark infringement action must fail if the mark is\ngeneric and will usually fail if the mark is descriptive. Generic\nterms, which are the terms “commonly used as the name of a\nkind of goods,” Liquid Controls Corp. v. Liquid Control Corp.,\n802 F.2d 934, 936 (7th Cir. 1986), may not be trademark pro-\ntected “under any circumstances,” Miller Brewing Co. v. G.\nHeileman Co., 561 F.2d 75, 79 (7th Cir. 1977). Descriptive terms,\nwhich describe the ingredients, characteristics, or qualities of\nan article, are protected only if the holder can establish that\nthe mark has acquired a secondary meaning. U.S. Pat. &\nTrademark Oﬀ. v. Booking.com B. V., 591 U.S. 549, 553 (2020).\nSecondary meaning attaches to marks that have “achieve[d]\nsigniﬁcance ‘in the minds of the public’ as identifying the ap-\nplicant’s goods or services.” Id. (quoting Wal-Mart Stores, Inc.\nv. Samara Bros., Inc., 529 U.S. 205, 211 (2000)). “Holiday Inn,”\nfor example, describes a vacation accommodation, but most\npeople associate the term with one speciﬁc brand. See also Un-\ncommon, LLC v. Spigen, Inc., 926 F.3d 409, 420 (7th Cir. 2019)\n(“5-Hour Energy . . . describes the caﬀeinated shot, but is\nreadily associated by most customers with one maker.” (in-\nternal quotations omitted)).\n\f10 Nos. 24-3317 et al.\n\n The Lanham Act provides a rebuttable presumption of va-\nlidity 5 for successfully registered trademarks, but the pre-\nsumption “evaporates as soon as evidence of invalidity is pre-\nsented.” Ga.-Pac. Consumer Prods. LP v. Kimberly-Clark Corp.,\n647 F.3d 723, 727 (7th Cir. 2011) (quoting Door Sys., Inc. v. Pro–\nLine Door Sys., Inc., 83 F.3d 169, 172 (7th Cir. 1996)). As rele-\nvant here, an incontestable registered mark—one that has been\nin continuous use for ﬁve years after registration—attains an\neven higher status of legal protection. The defendant may\novercome this strong presumption of validity only by show-\ning the incontestable trademark has become generic. § 1065;\nEco Mfg. LLC. v. Honeywell Int’l, Inc., 357 F.3d 649, 651 (7th Cir.\n2003).\n The district court found Iltaco’s “Pizza Puﬀ” mark was\nprotectable because Little Caesars failed to overcome the pre-\nsumption of protection aﬀorded to incontestable marks. Be-\ncause the court committed several errors in its analysis, and\nbecause Iltaco did not otherwise show it was likely to succeed\nin proving its mark is protectable, we reverse this portion of\nthe court’s decision.\n a. Primary Signiﬁcance Test for Genericness\n Whether a registered mark has become a generic term\nturns on the mark’s “primary signiﬁcance” to the relevant\npublic. § 1064(3) (“The primary signiﬁcance of the registered\nmark to the relevant public ... shall be the test for determining\nwhether the registered mark has become the generic name of\n\n\n 5 “The validity of a mark pertains to whether” a given term “is entitled\n\nto protection under trademark law.” Platinum Home, 149 F.3d at 726. If a\nterm that is the subject of a registered trademark is shown to be unprotect-\nable, the mark is invalid. Id.\n\fNos. 24-3317 et al. 11\n\ngoods or services.”); see also Booking.com, 591 U.S. at 556 (ap-\nplying “primary signiﬁcance” test to determine whether mark\nwas generic). The district court neglected to apply the primary\nsigniﬁcance test here. Instead, it found Iltaco was likely to suc-\nceed in showing its mark was protectable because other\nbrands selling similar products are “able to compete eﬀec-\ntively without using the plaintiﬀ’s ‘PIZZA PUFFS’ mark.” The\ndistrict court drew this standard from Ty Inc. v. Softbelly’s Inc.,\nwhere we explained, in dicta, that ﬁnding a trademark has be-\ncome generic is a “fateful step” that we do not ordinarily take\n“until the trademark has gone so far toward becoming the ex-\nclusive descriptor of the product that sellers of competing\nbrands cannot compete eﬀectively without using the name to\ndesignate the product they are selling.” 353 F.3d 528, 531 (7th\nCir. 2003). Because Iltaco provided examples of other brands\nproducing similar products that competed eﬀectively without\nusing “Pizza Puﬀ” (e.g., Hot Pockets, Totino’s Pizza Rolls,\nJimmy Dean Toaster Pop-Ups), the district court found the\nmark had not become the “exclusive descriptor” of the prod-\nuct and therefore was not generic under Ty.\n Our language in Ty may explain one reason why generic\nmarks are not protectable—i.e., because protecting generic\nmarks would stymie competition from sellers of similar prod-\nucts unable to suﬃciently describe their product. But it is not\nthe correct test for genericness. The plain language of the Lan-\nham Act, Supreme Court precedent, and even a previous par-\nagraph in Ty explain that we assess the mark’s primary sig-\nniﬁcance to determine whether it has become generic and\nthus unprotectable under the Lanham Act. See § 1064(3); Book-\ning.com, 591 U.S. at 556; Ty, 353 F.3d at 530–31 (“[T]he legal\ntest of genericness is ‘primary signiﬁcance.’”). A term need\nnot be the exclusive descriptor of a product to become generic.\n\f12 Nos. 24-3317 et al.\n\nRather, a trademark plaintiﬀ “may not prevent [the] defend-\nant from using [a mark] simply because there are other titles\ndefendant could use.” Tech. Publ’g Co. v. Lebhar-Friedman, Inc.,\n729 F.2d 1136, 1141 (7th Cir 1984); 6 see also 2 J. Thomas McCar-\nthy, McCarthy on Trademarks and Unfair Competition § 12:9\n(2006) (“Any product may have many generic designations.\nAny one of those is incapable of trademark signiﬁcance.”). A\ngeneric term is not made less generic by the availability of\nother terms. Tech. Publ’g Co., 729 F.2d at 1141. If we held oth-\nerwise, we would “extend protection to a generic term, a re-\nsult clearly at odds with trademark law.” Id. Because the dis-\ntrict court failed to apply the correct legal test––the primary\nsigniﬁcance test––to determine genericness, the district court\nerred.\n b. Primary Signiﬁcance of “Pizza Puﬀ”\n Viewed under the correct standard, the issue is whether\nthe primary signiﬁcance of “Pizza Puﬀ” to consumers is as a\ngeneric term describing a class of products or a distinctive\nterm indicating association with a particular brand.\n\n\n\n 6 Iltaco attempts to distinguish Technical Publishing Co. because it dealt\n\nwith a magazine title, and “[m]agazines diﬀer from other goods[] in that\ntheir title is a primary means of conveying their content,” so “[c]ourts con-\nfronted with similar trade journal disputes have held consistently that ti-\ntles consisting of the trade name and an indication of the type of publica-\ntion are generic.” 729 F.2d at 1140. But the distinction we drew between\nmagazines and other goods related only to our classiﬁcation of magazine\ntitles as generic or descriptive terms; it did not extend to the test we apply\nto determine whether a mark has become generic. Id. Elsewhere in the\nopinion, we conﬁrmed “[t]he test in determining whether a magazine title\nis generic is no diﬀerent than that applied in determining whether any\nother mark is generic.” Id.\n\fNos. 24-3317 et al. 13\n\nBooking.com, 591 U.S. at 560–61. To determine the primary sig-\nniﬁcance of a term, the court may consider “consumer sur-\nveys, … dictionaries, usage by consumers and competitors,\nand any other source of evidence bearing on how consumers\nperceive a term’s meaning.” Id. at 561 n.6.\n Little Caesars presented extensive evidence to show that\nthe primary signiﬁcance of Iltaco’s incontestable 7 “Pizza Puﬀ”\nmark to consumers is as a generic term. First, Little Caesars\npresented the results of a Teﬂon survey, 8 showing 83.3% of\nconsumers of dough-based, pizza-ingredient-ﬁlled foods per-\nceive “pizza puﬀ” as a common (i.e., generic) term, while only\n12.7% perceive the term as a brand name. The district court\ndismissed this strong evidence of genericness by ﬁnding it\nwas “not conclusive” because in Ty we said, in dicta, that as\nfew as ten percent of consumers associating a mark with an\nowner’s brand could result in consumer confusion. 353 F.3d\nat 531. We cannot accept that ten percent of consumers is a\nrelevant percentage for the genericness test, which focuses on\nthe “primary signiﬁcance” of a product to consumers. “[I]f a\nsurvey showed that 75 percent of the public regard the word\nas generic, then that is its majority usage and its ‘principal sig-\nniﬁcance.’” McCarthy § 12:6. Primary signiﬁcance requires far\n\n\n 7 Iltaco registered its “Pizza Puﬀ” mark in 2009, well over ﬁve years\n\nago, and has used it consistently since, so it has now become incontestable.\nThe parties agree this mark is incontestable.\n 8 Teﬂon surveys are the “most judicially accepted format for testing for\n\ngenericness.” McCarthy § 12:16. In a Teﬂon survey, the survey “begins\nwith a brief lesson explaining the diﬀerence between brand names and\ncommon names. It then asks respondents to classify a series of words, in-\ncluding the trademark at issue, as either brand names or common names.”\nElliott v. Google, Inc., 860 F.3d 1151, 1160 n.7 (9th Cir. 2017).\n\f14 Nos. 24-3317 et al.\n\nmore than ten percent. The court thus erred when it found\nLittle Caesars’ evidence inconclusive based on this inapplica-\nble statement of the law. Viewed properly, survey data show-\ning over 80 percent of relevant consumers perceive “pizza\npuﬀ” as a generic term presents strong evidence of its gener-\nicness. See McCarthy § 12:6.\n Little Caesars also presented several deﬁnitions of “pizza\npuﬀ” drawn from crowd-sourced dictionaries to show the\nterm has acquired a generic meaning. Deﬁnitions.net de-\nscribes a pizza puﬀ as “A dough pouch ﬁlled with the ingre-\ndients of a pizza, such as cheese, pizza sauce, sausage, and\npepperoni, and usually deep fried.” Kiddle Encyclopedia (an\nonline encyclopedia for kids) describes a pizza puﬀ as “A\ndeep-fried dough pocket ﬁlled with cheese, tomato sauce, and\nother pizza ingredients such as sausage or pepperoni.”\nThough the district court did not address these proﬀered\npizza puﬀ deﬁnitions, Iltaco argues on appeal that the crowd-\nsourced dictionary deﬁnitions are unreliable evidence be-\ncause anyone can edit an online crowd-sourced dictionary.\nBut Little Caesars introduced these deﬁnitions to show how\nthe public uses and perceives the term “pizza puﬀ.” Our ge-\nnericness analysis inquires into the primary signiﬁcance of a\nterm to the public, not its unequivocal technical deﬁnition. 9\n\n 9 A number of federal courts have found crowd-sourced deﬁnitions\n\nunreliable and even inadmissible as evidence of a term’s technical deﬁni-\ntion or as the basis for an expert’s testimony. See, e.g., Badasa v. Mukasey,\n540 F.3d 909, 909 (8th Cir. 2008) (noting Wikipedia deﬁnition of an Ethio-\npian travel document was unreliable evidence of party’s immigration sta-\ntus); Advanced Mech. Servs., Inc. v. Auto-Owners Ins. Co., No. 14-CV-388,\n2017 WL 3381366, at 4 (W.D. Ky. Aug. 4, 2017) (ﬁnding expert witness’s\nopinion inadmissible because expert relied on Wikipedia deﬁnition);\n\fNos. 24-3317 et al. 15\n\nCrowd-sourced dictionary deﬁnitions inform that question,\nso they are relevant to our analysis and weigh in favor of ge-\nnericness. Still, the fact that anyone can edit a crowd-sourced\ndictionary deﬁnition bears on the weight of Little Caesars’\ndictionary evidence.\n The district court acknowledged, though did not analyze,\nevidence Little Caesars introduced of third parties using\n“pizza puﬀ” in their USPTO applications and registrations to\nindicate the term has widespread generic use in the industry.\nWe have found third-party registrations probative of a term’s\nwidespread descriptive use where over ﬁfty third-party reg-\nistrations used the same term to describe a similar quality. See\nSpraying Sys. Co. v. Delevan, Inc., 975 F.2d 387, 393 (7th Cir.\n1992) (ﬁnding the suﬃx “JET” descriptive of a hose product\nbased in part on ﬁfty other registrations using “JET” to de-\nscribe similar high-velocity water stream products). Here, the\nﬁve USPTO registrations cited by Little Caesars may not be\ndispositive on their own, but together with consumer survey\n\n\nFleishman v. Cont'l Cas. Co., No. 09 C 414, 2011 WL 5866264, at 4 (N.D. Ill.\nNov. 22, 2011) (ﬁnding inadmissible Wikipedia deﬁnition of “aneurysm”\nas evidence of plaintiﬀ’s injury). Similarly, the Fourth Circuit found a\nSixth Amendment violation in a criminal trial where the jury inde-\npendently obtained and considered a Wikipedia deﬁnition of an element\nof the crime at issue. United States v. Lawson, 677 F.3d 629, 641 (4th Cir.\n2012). But where a crowdsourced deﬁnition is oﬀered to show the signiﬁ-\ncance of that term to members of the public, at least one federal court has\nrelied upon the deﬁnition. See Hawkins v. City of Phila., 571 F. Supp. 3d 455,\n458 (E.D. Pa. 2021) (relying on crowd-sourced dictionary’s deﬁnition of a\nslang term). Thus, while crowd-sourced dictionary deﬁnitions may unre-\nliably evince a term’s correct or technical deﬁnition, they more reliably\nrepresent what a term means to members of the public, which is what the\ngenericness analysis is concerned about.\n\f16 Nos. 24-3317 et al.\n\nand dictionary evidence the USPTO registrations indicate\nother producers of similar products primarily think of “pizza\npuﬀ” as a name for a class of foods rather than a particular\nbrand within that class.\n Iltaco’s arguments to the contrary—that the USPTO de-\nscriptions are unreliable evidence and that they do not apply\nbecause some of the marks using “pizza puﬀ” as a descriptor\nare inactive—do not counter this evidence. Iltaco relies on a\ndistrict court decision stating that USPTO registrations are not\nsuﬃciently reliable for the court to take judicial notice of\nthem, not that they are unreliable evidence altogether. Face-\nbook, Inc. v. Teachbook.com LLC, 819 F. Supp. 2d 764, 772 (N.D.\nIll. 2011). And USPTO registrations using “pizza puﬀ” are\nprobative of how other companies in the food industry use\nthat term even if they are inactive. Spraying Sys., 975 F.2d at\n393 (“[T]hose [registered trademarks] that are not [in current\nuse] can still be probative on the issue of descriptiveness.”).\n Not all of Little Caesars’ evidence of genericness is as com-\npelling. Online recipes for pizza puﬀs have low evidentiary\nvalue because the internet is replete with copycat recipes\nteaching home cooks how to replicate popular, often trade-\nmarked, dishes at home (e.g., recipes for homemade Hot-\nPockets, Pop-Tarts, etc.). 10 Little Caesars also introduced evi-\ndence of menus listing “pizza puﬀ” alongside generic food\n\n\n\n 10 See Illinois Tamale Co. v. El-Greg, Inc., No. 16 C 5387, 2018 WL 1534971\n\nat 5 (N.D. Ill. Mar. 29, 2018) (“There are also thousands of recipes for a\nhomemade version of Hot Pockets, another speciﬁc brand of stuﬀed sand-\nwich. The existence of such recipes does not necessarily suggest that ‘Hot\nPockets’ is a generic term [but rather] that Hot Pockets are a well-known\nbrand that home cooks want to replicate.” (citation modiﬁed)).\n\fNos. 24-3317 et al. 17\n\nitems, indicating the term is used widely in the industry as a\ngeneric term. See Miller Brewing, 561 F.2d at 80 (ﬁnding “light”\ngeneric in part because it is “widely used in the beer indus-\ntry”). These menus provide some support for genericness, but\nunlike the evidence in Miller Brewing showing others in the\nbeer industry used “light” to describe their own distinct prod-\nucts, it is unclear whether the menus Little Caesars cited refer\nto the restaurants’ own products or to Iltaco’s, given Iltaco\nsells its food products to third-party restaurants. Little Cae-\nsars nevertheless contends the menus support genericness be-\ncause placing “pizza puﬀ” alongside generic terms like\n“fries” and “hot dog” must mean “pizza puﬀ” is generic. But\nagain, because Little Caesars did not show 11 the menus refer-\nenced anything but Iltaco’s product, they do not necessarily\nshow others in the industry do not associate “pizza puﬀ” with\nIltaco.\n Even so, the district court ultimately erred by ﬁnding Il-\ntaco was likely to succeed in showing “Pizza Puﬀ” is protect-\nable because the court failed to apply the primary signiﬁcance\ntest and the record did not support its ﬁnal decision. Little\nCaesars’ consumer survey data, dictionary deﬁnitions, and\nUSPTO registrations showing generic usage were suﬃcient to\novercome the presumption of trademark validity, and Iltaco\ndid not show how it could overcome this evidence at trial to\nprove “Pizza Puﬀ” is a protectable mark. Iltaco thus failed to\ncarry its burden of showing a likelihood of success on the\n\n\n 11 Little Caesars must make an aﬃrmative showing because it bears\n\nthe burden of overcoming the presumption of protectability inherent to\nincontestable marks. See Liquid Controls, 802 F.2d at 936 (“The burden is on\nthe defendant to overcome the presumption.”).\n\f18 Nos. 24-3317 et al.\n\nmerits, so the district court should not have granted its motion\nfor preliminary injunction.\n 2. Fair Use Analysis\n Even if “Pizza Puﬀ” is suﬃciently distinctive to merit pro-\ntection under the Lanham Act, Iltaco cannot prevail without\nshowing how it will successfully counter Little Caesars’ fair\nuse defense. A defendant in a trademark infringement case\nmay invoke the “fair use” defense by demonstrating that (1) it\nused the phrase at issue in a non-trademark capacity, (2) the\nphrase is descriptive of its goods and services, and (3) it used\nthe phrase “fairly and in good faith” only to describe its\ngoods. § 1115(b)(4); see also Sands, Taylor & Wood Co. v. Quaker\nOats Co., 978 F.2d 947, 951 (7th Cir. 1992); Packman, 267 F.3d at\n639.\n Little Caesars asserted a fair use defense in response to Il-\ntaco’s preliminary injunction motion, but the district court re-\njected the defense based on the second prong, 12 explaining:\n The defendants have not shown that “PIZZA PUFFS”\n is descriptive of their goods. The defendants[’] product\n looks like a mini-pizza or a pizza muﬃn or a pizza cup-\n cake or a pizza bite. It is not apparent what part of the\n defendants’ product is a puﬀ, which means that the\n mark is not descriptive of the defendants’ goods.\n The district court erred in reaching this conclusion be-\ncause it misapplied the relevant legal standard to determine\nwhether “Pizza Puﬀ” is descriptive of Little Caesars’ product.\nThe district court mistakenly required Little Caesars’ product\n\n\n 12 Because the district court did not address the ﬁrst or third prongs\n\nof fair use, we do not address them here.\n\fNos. 24-3317 et al. 19\n\nto be a pizza puﬀ for the term to apply descriptively. In fact,\nthe term need only refer to a characteristic of the product.\nF. Corp., 903 F.2d at 444. We identiﬁed a similar problem in\nQuaker Oats, where the district court erred by requiring a de-\nscriptive term to “bring to mind the product in question.” 978\nF.2d at 952. We explained “it is not necessary that a descrip-\ntive term depict the [product] itself, but only that the term re-\nfer to a characteristic of the [product].” Id. (quoting F. Corp., 903\nF.2d at 444). The district court should have considered\nwhether “Pizza Puﬀ” fairly described a characteristic or qual-\nity of Little Caesars’ Crazy Puﬀs product, not whether Crazy\nPuﬀs are pizza puﬀs.\n Under the correct test, the district court’s determination\nthat “Pizza Puﬀ” is not descriptive falls short. A Little Caesars\nrepresentative testiﬁed that “Crazy Puﬀs” are “light and airy\nmuﬃns” that are “puﬀy.” No one disputes that Crazy Puﬀs\nare ﬁlled with pizza ingredients like cheese, tomato sauce,\nmeat, and vegetables. This evidence fairly shows that “Pizza\nPuﬀ” describes a Crazy Puﬀ, which is a puﬀy and airy muﬃn\ncontaining pizza ingredients. And “Pizza Puﬀ” appears as\npart of the phrase “4 Hand-Held Pizza Puﬀs,” which is clearly\ndescribing the quantity, size, and type of food customers can\nexpect when they purchase a Crazy Puﬀ. The district court\ndid not consider this evidence or explain how Iltaco could\ncounter it at trial. Because the district court applied the wrong\nstandard, the district court abused its discretion in granting\nthe preliminary injunction for “Pizza Puﬀ.” See Lawson Prods.,\n782 F.2d at 1437 (“[A] factual or legal error may alone be suf-\nﬁcient to establish that the court ‘abused its discretion’ in\nmaking its ﬁnal determination.”).\n\f20 Nos. 24-3317 et al.\n\nB. “Crazy Puﬀs” and “Puﬀ”\n The district court found Iltaco failed to meet its burden\nwith respect to Little Caesars’ use of its “Crazy Puﬀs” mark\nbecause Iltaco did not show there was a likelihood of confu-\nsion between Little Caesars’ “Crazy Puﬀs” mark and Iltaco’s\n“Pizza Puﬀ” or “Puﬀ” marks. The court did not clearly err in\neither determination, so we aﬃrm its decision regarding both\nmarks.\n The district court correctly rejected Iltaco’s suggestion that\n“Crazy Puﬀs” and “Pizza Puﬀ” were confusingly similar be-\ncause both contain the word “Puﬀ.” When evaluating the like-\nlihood of confusion between marks, “we must keep in mind\nthat ‘[t]he commercial impression of a trade-mark is derived\nfrom it as a whole, not from its elements separated and con-\nsidered in detail.’” Grubhub, 80 F.4th at 848 (quoting Est. of\nP.D. Beckwith, Inc. v. Comm'r of Pats., 252 U.S. 538, 545–46\n(1920)). Thus, we cannot look at “Puﬀ” (from “Crazy Puﬀs”)\nin isolation and ﬁnd it confusingly similar to “Puﬀ” in Iltaco’s\n“Pizza Puﬀ” name. We must consider the “Crazy Puﬀs” mark\nin its entirety, as the district court rightly explained.\n Viewing the “Crazy Puﬀs” mark as a whole, the district\ncourt did not err in ﬁnding no likelihood of confusion with\n“Pizza Puﬀ.” The court found the two terms are signiﬁcantly\ndiﬀerent because Iltaco’s mark denotes the ingredients found\nin the product while Little Caesars’ mark uses “Crazy” to tie\nits product to its own family of Crazy marks. Iltaco’s mark\ndescribes what a consumer can expect to ﬁnd inside the puﬀ,\nwhile Little Caesars’ mark designates its brand. Though the\ncourt found other likelihood-of-confusion factors may favor\nIltaco, it held “the diﬀerence in the marks’ overall impression\n\fNos. 24-3317 et al. 21\n\nprecludes ﬁnding a likelihood of success by the plaintiﬀ on\nlikelihood of confusion.”\n A district court has broad “ﬂexibility to determine what\n[likelihood-of-confusion] factors are most critical in a case.”\nTy, Inc. v. Jones Grp., Inc., 237 F.3d 891, 901 (7th Cir. 2001). And\nbecause the similarity of the marks is one of the most im-\nportant considerations, a district court does not abuse its dis-\ncretion by ﬁnding no likelihood of confusion based on dissim-\nilar marks even when other factors weigh in favor of confu-\nsion. Eli Lilly & Co. v. Nat. Answers, Inc., 233 F.3d 456, 462 (7th\nCir. 2000). Here, the district court made a reasoned determi-\nnation that the two marks were not similar and did not abuse\nits discretion in weighing the similarity factor heavily to ﬁnd\nno likelihood of success in showing likelihood of confusion.\n * \n Because Iltaco did not show it is likely to succeed in prov-\ning that “Pizza Puﬀ” is protectable or rebutting Little Caesars’\nfair use defense at trial, Iltaco has not established a likelihood\nof success on the merits. Accordingly, we do not proceed to\nthe harms-balancing or public interest steps of the prelimi-\nnary injunction analysis. See Grubhub, 80 F.4th at 844 (“[Only]\n[u]pon a showing of [likelihood of success on the merits], the\ncourt weighs the harm of denying an injunction.”).\n The district court abused its discretion by granting the pre-\nliminary injunction as to “Pizza Puﬀ,” but did not abuse its\ndiscretion in denying the injunction regarding “Crazy Puﬀs”\nor “Puﬀ.”\n The judgment of the district court is\n AFFIRMED IN PART AND REVERSED IN PART.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11242196/", "author_raw": "ST. EVE, Circuit Judge"}, {"author": "ST. EVE, Circuit Judge", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNos. 24-3317, 25-1072, 25-1076 & 25-1112\nILLINOIS TAMALE COMPANY, INC., doing business as ILTACO,\n Plaintiﬀ-Appellee/Cross-Appellant,\n v.\n\nLC TRADEMARKS, INC. and LITTLE CAESAR ENTERPRISES, INC.,\n Defendants-Appellants/Cross-Appellees.\n ____________________\n\n Appeals from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 1:24-cv-05210 — Jeremy C. Daniel, Judge.\n ____________________\n\n ARGUED NOVEMBER 14, 2025 — DECIDED JANUARY 16, 2026\n ____________________\n\n Before SCUDDER, ST. EVE, and JACKSON-AKIWUMI, Circuit\nJudges.\n ST. EVE, Circuit Judge. Illinois Tamale Company, Inc. (“Il-\ntaco”), a Chicago-based food company, brought this trade-\nmark infringement action against LC Trademarks, Inc. and\nLittle Caesar Enterprises, Inc. (collectively “Little Caesars”),\nbased on Little Caesars’ advertising for its “Crazy Puﬀs” food\nproduct. Iltaco claimed Little Caesars’ Crazy Puﬀs product\nand advertising caused a substantial likelihood of confusion\n\f2 Nos. 24-3317 et al.\n\nwith Iltaco’s trademark-protected “Pizza Puﬀ” product. Iltaco\nalso moved for a preliminary injunction to enjoin Little Cae-\nsars from using “Crazy Puﬀ,” “Pizza Puﬀ,” and “Puﬀ” in its\nproduct names and advertising. The district court denied the\npreliminary injunction as to “Crazy Puﬀ” and “Puﬀ,” ﬁnding\nIltaco failed to show suﬃcient likelihood of success in its\ntrademark infringement action regarding those terms, but\ngranted the preliminary injunction as to “Pizza Puﬀ.” Because\nthe district court erred in concluding that Iltaco showed it was\nlikely to succeed on the merits of its trademark infringement\nclaim pertaining to “Pizza Puﬀ,” we reverse that portion of its\ndecision. We aﬃrm the district court’s decision as to “Crazy\nPuﬀ” and “Puﬀ.”\n I. Background\nA. Factual Background\n Iltaco is a Chicago-based food company founded in 1927.\nIn 1976, Iltaco began selling its pizza puﬀ product, which is\nsimilar to a calzone but made from a ﬂour tortilla wrapped\naround pizza toppings and can be fried or baked. Iltaco now\nsells its pizza puﬀs nationwide and has expanded its line of\nstuﬀed sandwich products to include a wide range of ingre-\ndients. Iltaco’s list of registered trademarks includes the\n“Pizza Puff,” “Gyro Puff,” “Ham Breakfast Puff,” “Sausage\nBreakfast Puff,” and “Spinach & Cheese Puff.” Specifically, it\nregistered its “Pizza Puff” trademark on May 26, 2009. It also\nhas a registered trademark for “Puff” as of May 3, 2022. Iltaco\nadvertises its stuffed sandwich products under the “Pizza\nPuff” and “Puff” trademarks.\n Little Caesars is a large chain of pizza restaurants founded\nin the United States with restaurant franchises worldwide. In\n\fNos. 24-3317 et al. 3\n\nMarch 2024, Little Caesars launched its new Crazy Puffs\nproduct in its restaurants throughout the country. Crazy\nPuffs are small, baked pizza dough cups filled with pizza in-\ngredients and topped with cheese. Crazy Puffs join Little Cae-\nsars’ numerous other “Crazy” marks, which the pizza chain\nhas used extensively in its marketing since the 1980s. Little\nCaesars owns numerous federal trademark registrations for\nits various “Crazy” products, and in May 2024 finalized its\nfederal registration for the “Crazy Puffs” mark. 1 Before final-\nizing Little Caesars’ registration, an examining attorney with\nthe U.S. Patent and Trademark Office (“USPTO”) searched\nthe database of registered and pending marks and found no\nlikelihood of confusion between “Crazy Puffs” and any prior\nregistered or pending marks of third parties, including Iltaco.\n Since launching Crazy Puffs, Little Caesars has marketed\nits puffs heavily using its “Little Caesars” trade name and the\nclassic Little Caesars trade dress—the Roman Character logo,\n“Hot-N-Ready” tagline, “Crazy” mark, and bright orange col-\noring. Crazy Puffs marketing materials include a line reading\n“4 Hand-Held Pizza Puffs,” which appears in small print di-\nrectly below “Crazy Puffs.” The phrase “Pizza Puffs” appears\nas part of “4 Hand-Held Pizza Puffs,” which always appears\nin conjunction with the “Crazy Puffs” mark.\n\n\n\n\n 1 Little Caesars disclaimed “Puﬀs” as part of its trademark in compli-\n\nance with a USPTO examining attorney’s advice, meaning Little Caesars\nclaims no rights in that word.\n\f4 Nos. 24-3317 et al.\n\n\n\n\n Little Caesars Crazy Puﬀs Advertisement\n Little Caesars sells Crazy Puffs exclusively through its res-\ntaurants, where customers can purchase them through tradi-\ntional carryout or delivery channels. Little Caesars does not\nsell Crazy Puffs in grocery stores, convenience stores, or\nthird-party restaurants.\nB. Procedural Background\n The present dispute began in April 2024 when Iltaco sent\nLittle Caesars a cease-and-desist letter claiming “Crazy Puﬀs”\nand “4 Hand-Held Pizza Puﬀs” infringed Iltaco’s trademark\nrights in its “Pizza Puﬀ” and “Puﬀ” marks. Little Caesars dis-\nputed the merits of Iltaco’s claims and continued to use both\n“Crazy Puﬀs” and “4 Hand-Held Pizza Puﬀs.”\n On June 21, 2024, Iltaco brought a four count complaint\nagainst Little Caesars, asserting claims under Section 32 of the\nLanham Act, 15 U.S.C. § 1114, for trademark infringement\n(Count I); Section 43(a) of the Lanham Act, § 1125, for false\ndesignation of origin (Count II); the Illinois Uniform Decep-\ntive Trade Practices Act, 815 ILCS 510/1 (Count III); and\n\fNos. 24-3317 et al. 5\n\ncommon law unfair competition (Count IV). On the same day,\nIltaco ﬁled its motion for a preliminary injunction, seeking to\nenjoin Little Caesars from using “Crazy Puﬀs,” “Pizza Puﬀ,”\nand “Puﬀ” in selling its product. After holding an evidentiary\nhearing, the district court granted Iltaco’s motion as to “Pizza\nPuﬀ” and denied it as to “Crazy Puﬀs” and “Puﬀ.” Little Cae-\nsars now appeals the district court’s decision enjoining its use\nof “Pizza Puﬀ,” 2 and Iltaco cross-appeals the district court’s\ndenial of its injunction motion regarding “Crazy Puﬀs” and\n“Puﬀ.”\n II. Legal Standard\n “We review the district court's denial of the motion for a\npreliminary injunction for an abuse of discretion, viewing its\nlegal conclusions de novo, and ﬁndings of fact for clear error.”\nMinocqua Brewing Co. v. Hess, 160 F.4th 849, 851 (7th Cir. 2025)\n(citing Richwine v. Matuszak, 148 F.4th 942, 952 (7th Cir. 2025)).\n A district court may grant a preliminary injunction where\nthe “movant shows that it is likely to succeed on the merits of\n\n\n 2 Little Caesars also purports to appeal the district court’s decision re-\n\ngarding its use of “Puﬀ,” arguing that the district court improperly found\n“Puﬀ” is a protectable mark rather than a generic term. The district court\ndid ﬁnd “Puﬀ” protectable, but also found no likelihood of confusion\nstemming from Little Caesars’ use of “Puﬀ” and accordingly denied the\nmotion for preliminary injunction as to “Puﬀ.” Because the district court\nultimately ruled in Little Caesars’ favor as to “Puﬀ,” Little Caesars cannot\nappeal this favorable decision. See Bd. Of Trs. Of Univ. of Ill. v. Organon\nTeknika Corp. LLC, 614 F.3d 372, 374 (7th Cir. 2010); United States v. Accra\nPac, Inc., 173 F.3d 630, 632 (7th Cir. 1999) (“[A] litigant may not appeal\nfrom unfavorable statements in a judicial opinion, if the judgment was fa-\nvorable.”).\n\f6 Nos. 24-3317 et al.\n\nits claims and that traditional legal remedies would be inade-\nquate, such that it would suﬀer irreparable harm without in-\njunctive relief.” Grubhub Inc. v. Relish Labs LLC, 80 F.4th 835,\n843 (7th Cir. 2023) (citing Life Spine, Inc. v. Aegis Spine, Inc., 8\nF.4th 531, 539 (7th Cir. 2021)). Trademark law affords a rebut-\ntable presumption of irreparable harm to movants who show\nthey are likely to succeed on the merits of their trademark in-\nfringement claims. Id.; § 1116(a). If the movant shows it is\nlikely to succeed on the merits, the court next “weighs the\nharm of denying an injunction to the movant against the harm\nof granting an injunction to the nonmovant.” Grubhub, 80\nF.4th at 844. The court also considers the public interest in\ngranting versus denying the preliminary injunction request.\nLife Spine, 8 F.4th at 539.\n “[A]n applicant for preliminary relief bears a signiﬁcant\nburden,” Ill. Republican Party v. Pritzker, 973 F.3d 760, 763 (7th\nCir. 2020), and must show more than “a mere possibility of\nsuccess” on the merits to prevail, Life Spine, Inc., 8 F.4th at 540.\nIt is not enough, as Iltaco asserts, to show only a “better than\nnegligible” chance of succeeding on the merits. 3 Nken v.\nHolder, 556 U.S. 418, 434 (2009). Of course, the movant “need\nnot show that it deﬁnitely will win the case,” but it “must\n\n\n 3 It is diﬃcult to determine which standard the district court applied.\n\nIf the court applied the “better than negligible standard,” it abused its dis-\ncretion. See Lawson Prods., Inc. v. Avnet, Inc., 782 F.2d 1429, 1437 (7th Cir.\n1986) (“A district judge may abuse his discretion . . . [by applying] an in-\ncorrect preliminary injunction standard.”); see also Arwa Chiropractic, P.C.\nv. Med-Care Diabetic & Med. Supplies, Inc., 961 F.3d 942, 949 (7th Cir. 2020)\n(“A court abuses its discretion when it fails to consider a motion under the\nproper legal standard.”). Even if it applied the correct standard, however,\nthe district court committed other legal errors that require reversal in part.\n\fNos. 24-3317 et al. 7\n\ndemonstrate at a minimum how it proposes to prove the key\nelements of its case.” Grubhub, 80 F.4th at 844.\n III. Discussion\n Trademark law serves the dual purposes of protecting cus-\ntomers’ desires to make informed purchasing decisions based\non familiar, trustworthy marks, and protecting trademark\nowners against misappropriation of marks in which they\nhave invested signiﬁcant time, energy, and resources. See id.\n The Trademark Act of 1946, known as the Lanham Act,\ncodiﬁed at 15 U.S.C. §§ 1051–1141n, governs our analysis.\n“The Lanham Act allows those who employ trade or service\nmarks to register them for exclusive use in commerce.” Sport-\nFuel, Inc. v. PepsiCo, Inc., 932 F.3d 589, 595 (7th Cir. 2019) (cit-\ning KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543\nU.S. 111, 117 (2004)). Under the Lanham Act, a “holder of a\nregistered mark … has a civil action against anyone employ-\ning an imitation of it in commerce when ‘such use is likely to\ncause confusion, or to cause mistake, or to deceive.’” KP Per-\nmanent Make-Up, 543 U.S. at 117 (quoting § 1114(1)(a)). To pre-\nvail on such a claim, the plaintiﬀ must establish that “(1) its\nmark is protectable and (2) the defendant’s use of the mark is\nlikely to cause confusion among consumers.” CAE, Inc. v.\nClean Air Eng’g, Inc., 267 F.3d 660, 673–74 (7th Cir. 2001).\n The Lanham Act also provides aﬃrmative defenses to\ncounter a plaintiﬀ’s claims, including the “fair use” defense.\nSee § 1115(b). The fair use defense “allows individuals to use\notherwise trademarked language in a descriptive sense.”\nSportFuel, 932 F.3d at 595 (citing Packman v. Chi. Trib. Co., 267\nF.3d 628, 639 (7th Cir. 2001)). To raise the fair use defense suc-\ncessfully, a defendant must show that (1) it did not use the\n\f8 Nos. 24-3317 et al.\n\nmark at issue as a trademark, (2) the use is descriptive of its\ngoods, and (3) it used the mark fairly and in good faith.\nSorensen v. WD-40 Co., 792 F.3d 712, 722 (7th Cir. 2015) (citing\n§ 1115(b)(4)); Packman, 267 F.3d at 639.\nA. “Pizza Puﬀ”\n The district court found Iltaco was likely to succeed on the\nmerits of its trademark infringement action for its “Pizza\nPuﬀ” mark. In doing so, the court found Iltaco was likely to\nsucceed in showing “Pizza Puﬀ” was a protectable mark, that\nno fair use defense applied, and that there was substantial\nlikelihood of confusion between both parties’ use of “Pizza\nPuﬀ.” We address the district court’s ﬁndings regarding pro-\ntectability and fair use, 4 and ultimately reverse the prelimi-\nnary injunction on Little Caesars’ use of “Pizza Puﬀ” because\nIltaco failed to meet its burden of establishing a suﬃcient like-\nlihood of success on the merits of its claim.\n 1. Protectability Analysis\n To succeed on a trademark infringement action, the mark\nor marks at issue must be protectable under the Lanham Act\nin the ﬁrst place. Whether a mark is entitled to protection de-\npends upon where it falls on a spectrum of increasing distinc-\ntiveness from (1) generic, (2) descriptive, (3) suggestive,\n(4) arbitrary, or (5) fanciful. Platinum Home Mortg. Corp. v.\nPlatinum Fin. Grp., 149 F.3d 722, 727 (7th Cir. 1998); Packman,\n267 F.3d at 638. We review the district court’s factual\n\n\n\n 4 We are skeptical whether the district court made suﬃcient factual\n\nﬁndings to support its likelihood of confusion analysis. In any event, we\nneed not address likelihood of confusion because we are reversing on\nother grounds.\n\fNos. 24-3317 et al. 9\n\ndetermination of where a mark falls along this spectrum for\nclear error. Mil-Mar Shoe Co. v. Shonac Corp., 75 F.3d 1153,\n1156–57 (7th Cir. 1996) (“[P]lacement of a mark in a particular\ncategory is subject to review for clear error, and thus may be\nset aside only if, after considering all the evidence, we are ‘left\nwith the deﬁnite and ﬁrm conviction that a mistake has been\ncommitted.’” (quoting F. Corp. of N. Am. v. F., Ltd., 903 F.2d\n434, 438 (7th Cir.1990))).\n A trademark infringement action must fail if the mark is\ngeneric and will usually fail if the mark is descriptive. Generic\nterms, which are the terms “commonly used as the name of a\nkind of goods,” Liquid Controls Corp. v. Liquid Control Corp.,\n802 F.2d 934, 936 (7th Cir. 1986), may not be trademark pro-\ntected “under any circumstances,” Miller Brewing Co. v. G.\nHeileman Co., 561 F.2d 75, 79 (7th Cir. 1977). Descriptive terms,\nwhich describe the ingredients, characteristics, or qualities of\nan article, are protected only if the holder can establish that\nthe mark has acquired a secondary meaning. U.S. Pat. &\nTrademark Oﬀ. v. Booking.com B. V., 591 U.S. 549, 553 (2020).\nSecondary meaning attaches to marks that have “achieve[d]\nsigniﬁcance ‘in the minds of the public’ as identifying the ap-\nplicant’s goods or services.” Id. (quoting Wal-Mart Stores, Inc.\nv. Samara Bros., Inc., 529 U.S. 205, 211 (2000)). “Holiday Inn,”\nfor example, describes a vacation accommodation, but most\npeople associate the term with one speciﬁc brand. See also Un-\ncommon, LLC v. Spigen, Inc., 926 F.3d 409, 420 (7th Cir. 2019)\n(“5-Hour Energy . . . describes the caﬀeinated shot, but is\nreadily associated by most customers with one maker.” (in-\nternal quotations omitted)).\n\f10 Nos. 24-3317 et al.\n\n The Lanham Act provides a rebuttable presumption of va-\nlidity 5 for successfully registered trademarks, but the pre-\nsumption “evaporates as soon as evidence of invalidity is pre-\nsented.” Ga.-Pac. Consumer Prods. LP v. Kimberly-Clark Corp.,\n647 F.3d 723, 727 (7th Cir. 2011) (quoting Door Sys., Inc. v. Pro–\nLine Door Sys., Inc., 83 F.3d 169, 172 (7th Cir. 1996)). As rele-\nvant here, an incontestable registered mark—one that has been\nin continuous use for ﬁve years after registration—attains an\neven higher status of legal protection. The defendant may\novercome this strong presumption of validity only by show-\ning the incontestable trademark has become generic. § 1065;\nEco Mfg. LLC. v. Honeywell Int’l, Inc., 357 F.3d 649, 651 (7th Cir.\n2003).\n The district court found Iltaco’s “Pizza Puﬀ” mark was\nprotectable because Little Caesars failed to overcome the pre-\nsumption of protection aﬀorded to incontestable marks. Be-\ncause the court committed several errors in its analysis, and\nbecause Iltaco did not otherwise show it was likely to succeed\nin proving its mark is protectable, we reverse this portion of\nthe court’s decision.\n a. Primary Signiﬁcance Test for Genericness\n Whether a registered mark has become a generic term\nturns on the mark’s “primary signiﬁcance” to the relevant\npublic. § 1064(3) (“The primary signiﬁcance of the registered\nmark to the relevant public ... shall be the test for determining\nwhether the registered mark has become the generic name of\n\n\n 5 “The validity of a mark pertains to whether” a given term “is entitled\n\nto protection under trademark law.” Platinum Home, 149 F.3d at 726. If a\nterm that is the subject of a registered trademark is shown to be unprotect-\nable, the mark is invalid. Id.\n\fNos. 24-3317 et al. 11\n\ngoods or services.”); see also Booking.com, 591 U.S. at 556 (ap-\nplying “primary signiﬁcance” test to determine whether mark\nwas generic). The district court neglected to apply the primary\nsigniﬁcance test here. Instead, it found Iltaco was likely to suc-\nceed in showing its mark was protectable because other\nbrands selling similar products are “able to compete eﬀec-\ntively without using the plaintiﬀ’s ‘PIZZA PUFFS’ mark.” The\ndistrict court drew this standard from Ty Inc. v. Softbelly’s Inc.,\nwhere we explained, in dicta, that ﬁnding a trademark has be-\ncome generic is a “fateful step” that we do not ordinarily take\n“until the trademark has gone so far toward becoming the ex-\nclusive descriptor of the product that sellers of competing\nbrands cannot compete eﬀectively without using the name to\ndesignate the product they are selling.” 353 F.3d 528, 531 (7th\nCir. 2003). Because Iltaco provided examples of other brands\nproducing similar products that competed eﬀectively without\nusing “Pizza Puﬀ” (e.g., Hot Pockets, Totino’s Pizza Rolls,\nJimmy Dean Toaster Pop-Ups), the district court found the\nmark had not become the “exclusive descriptor” of the prod-\nuct and therefore was not generic under Ty.\n Our language in Ty may explain one reason why generic\nmarks are not protectable—i.e., because protecting generic\nmarks would stymie competition from sellers of similar prod-\nucts unable to suﬃciently describe their product. But it is not\nthe correct test for genericness. The plain language of the Lan-\nham Act, Supreme Court precedent, and even a previous par-\nagraph in Ty explain that we assess the mark’s primary sig-\nniﬁcance to determine whether it has become generic and\nthus unprotectable under the Lanham Act. See § 1064(3); Book-\ning.com, 591 U.S. at 556; Ty, 353 F.3d at 530–31 (“[T]he legal\ntest of genericness is ‘primary signiﬁcance.’”). A term need\nnot be the exclusive descriptor of a product to become generic.\n\f12 Nos. 24-3317 et al.\n\nRather, a trademark plaintiﬀ “may not prevent [the] defend-\nant from using [a mark] simply because there are other titles\ndefendant could use.” Tech. Publ’g Co. v. Lebhar-Friedman, Inc.,\n729 F.2d 1136, 1141 (7th Cir 1984); 6 see also 2 J. Thomas McCar-\nthy, McCarthy on Trademarks and Unfair Competition § 12:9\n(2006) (“Any product may have many generic designations.\nAny one of those is incapable of trademark signiﬁcance.”). A\ngeneric term is not made less generic by the availability of\nother terms. Tech. Publ’g Co., 729 F.2d at 1141. If we held oth-\nerwise, we would “extend protection to a generic term, a re-\nsult clearly at odds with trademark law.” Id. Because the dis-\ntrict court failed to apply the correct legal test––the primary\nsigniﬁcance test––to determine genericness, the district court\nerred.\n b. Primary Signiﬁcance of “Pizza Puﬀ”\n Viewed under the correct standard, the issue is whether\nthe primary signiﬁcance of “Pizza Puﬀ” to consumers is as a\ngeneric term describing a class of products or a distinctive\nterm indicating association with a particular brand.\n\n\n\n 6 Iltaco attempts to distinguish Technical Publishing Co. because it dealt\n\nwith a magazine title, and “[m]agazines diﬀer from other goods[] in that\ntheir title is a primary means of conveying their content,” so “[c]ourts con-\nfronted with similar trade journal disputes have held consistently that ti-\ntles consisting of the trade name and an indication of the type of publica-\ntion are generic.” 729 F.2d at 1140. But the distinction we drew between\nmagazines and other goods related only to our classiﬁcation of magazine\ntitles as generic or descriptive terms; it did not extend to the test we apply\nto determine whether a mark has become generic. Id. Elsewhere in the\nopinion, we conﬁrmed “[t]he test in determining whether a magazine title\nis generic is no diﬀerent than that applied in determining whether any\nother mark is generic.” Id.\n\fNos. 24-3317 et al. 13\n\nBooking.com, 591 U.S. at 560–61. To determine the primary sig-\nniﬁcance of a term, the court may consider “consumer sur-\nveys, … dictionaries, usage by consumers and competitors,\nand any other source of evidence bearing on how consumers\nperceive a term’s meaning.” Id. at 561 n.6.\n Little Caesars presented extensive evidence to show that\nthe primary signiﬁcance of Iltaco’s incontestable 7 “Pizza Puﬀ”\nmark to consumers is as a generic term. First, Little Caesars\npresented the results of a Teﬂon survey, 8 showing 83.3% of\nconsumers of dough-based, pizza-ingredient-ﬁlled foods per-\nceive “pizza puﬀ” as a common (i.e., generic) term, while only\n12.7% perceive the term as a brand name. The district court\ndismissed this strong evidence of genericness by ﬁnding it\nwas “not conclusive” because in Ty we said, in dicta, that as\nfew as ten percent of consumers associating a mark with an\nowner’s brand could result in consumer confusion. 353 F.3d\nat 531. We cannot accept that ten percent of consumers is a\nrelevant percentage for the genericness test, which focuses on\nthe “primary signiﬁcance” of a product to consumers. “[I]f a\nsurvey showed that 75 percent of the public regard the word\nas generic, then that is its majority usage and its ‘principal sig-\nniﬁcance.’” McCarthy § 12:6. Primary signiﬁcance requires far\n\n\n 7 Iltaco registered its “Pizza Puﬀ” mark in 2009, well over ﬁve years\n\nago, and has used it consistently since, so it has now become incontestable.\nThe parties agree this mark is incontestable.\n 8 Teﬂon surveys are the “most judicially accepted format for testing for\n\ngenericness.” McCarthy § 12:16. In a Teﬂon survey, the survey “begins\nwith a brief lesson explaining the diﬀerence between brand names and\ncommon names. It then asks respondents to classify a series of words, in-\ncluding the trademark at issue, as either brand names or common names.”\nElliott v. Google, Inc., 860 F.3d 1151, 1160 n.7 (9th Cir. 2017).\n\f14 Nos. 24-3317 et al.\n\nmore than ten percent. The court thus erred when it found\nLittle Caesars’ evidence inconclusive based on this inapplica-\nble statement of the law. Viewed properly, survey data show-\ning over 80 percent of relevant consumers perceive “pizza\npuﬀ” as a generic term presents strong evidence of its gener-\nicness. See McCarthy § 12:6.\n Little Caesars also presented several deﬁnitions of “pizza\npuﬀ” drawn from crowd-sourced dictionaries to show the\nterm has acquired a generic meaning. Deﬁnitions.net de-\nscribes a pizza puﬀ as “A dough pouch ﬁlled with the ingre-\ndients of a pizza, such as cheese, pizza sauce, sausage, and\npepperoni, and usually deep fried.” Kiddle Encyclopedia (an\nonline encyclopedia for kids) describes a pizza puﬀ as “A\ndeep-fried dough pocket ﬁlled with cheese, tomato sauce, and\nother pizza ingredients such as sausage or pepperoni.”\nThough the district court did not address these proﬀered\npizza puﬀ deﬁnitions, Iltaco argues on appeal that the crowd-\nsourced dictionary deﬁnitions are unreliable evidence be-\ncause anyone can edit an online crowd-sourced dictionary.\nBut Little Caesars introduced these deﬁnitions to show how\nthe public uses and perceives the term “pizza puﬀ.” Our ge-\nnericness analysis inquires into the primary signiﬁcance of a\nterm to the public, not its unequivocal technical deﬁnition. 9\n\n 9 A number of federal courts have found crowd-sourced deﬁnitions\n\nunreliable and even inadmissible as evidence of a term’s technical deﬁni-\ntion or as the basis for an expert’s testimony. See, e.g., Badasa v. Mukasey,\n540 F.3d 909, 909 (8th Cir. 2008) (noting Wikipedia deﬁnition of an Ethio-\npian travel document was unreliable evidence of party’s immigration sta-\ntus); Advanced Mech. Servs., Inc. v. Auto-Owners Ins. Co., No. 14-CV-388,\n2017 WL 3381366, at 4 (W.D. Ky. Aug. 4, 2017) (ﬁnding expert witness’s\nopinion inadmissible because expert relied on Wikipedia deﬁnition);\n\fNos. 24-3317 et al. 15\n\nCrowd-sourced dictionary deﬁnitions inform that question,\nso they are relevant to our analysis and weigh in favor of ge-\nnericness. Still, the fact that anyone can edit a crowd-sourced\ndictionary deﬁnition bears on the weight of Little Caesars’\ndictionary evidence.\n The district court acknowledged, though did not analyze,\nevidence Little Caesars introduced of third parties using\n“pizza puﬀ” in their USPTO applications and registrations to\nindicate the term has widespread generic use in the industry.\nWe have found third-party registrations probative of a term’s\nwidespread descriptive use where over ﬁfty third-party reg-\nistrations used the same term to describe a similar quality. See\nSpraying Sys. Co. v. Delevan, Inc., 975 F.2d 387, 393 (7th Cir.\n1992) (ﬁnding the suﬃx “JET” descriptive of a hose product\nbased in part on ﬁfty other registrations using “JET” to de-\nscribe similar high-velocity water stream products). Here, the\nﬁve USPTO registrations cited by Little Caesars may not be\ndispositive on their own, but together with consumer survey\n\n\nFleishman v. Cont'l Cas. Co., No. 09 C 414, 2011 WL 5866264, at 4 (N.D. Ill.\nNov. 22, 2011) (ﬁnding inadmissible Wikipedia deﬁnition of “aneurysm”\nas evidence of plaintiﬀ’s injury). Similarly, the Fourth Circuit found a\nSixth Amendment violation in a criminal trial where the jury inde-\npendently obtained and considered a Wikipedia deﬁnition of an element\nof the crime at issue. United States v. Lawson, 677 F.3d 629, 641 (4th Cir.\n2012). But where a crowdsourced deﬁnition is oﬀered to show the signiﬁ-\ncance of that term to members of the public, at least one federal court has\nrelied upon the deﬁnition. See Hawkins v. City of Phila., 571 F. Supp. 3d 455,\n458 (E.D. Pa. 2021) (relying on crowd-sourced dictionary’s deﬁnition of a\nslang term). Thus, while crowd-sourced dictionary deﬁnitions may unre-\nliably evince a term’s correct or technical deﬁnition, they more reliably\nrepresent what a term means to members of the public, which is what the\ngenericness analysis is concerned about.\n\f16 Nos. 24-3317 et al.\n\nand dictionary evidence the USPTO registrations indicate\nother producers of similar products primarily think of “pizza\npuﬀ” as a name for a class of foods rather than a particular\nbrand within that class.\n Iltaco’s arguments to the contrary—that the USPTO de-\nscriptions are unreliable evidence and that they do not apply\nbecause some of the marks using “pizza puﬀ” as a descriptor\nare inactive—do not counter this evidence. Iltaco relies on a\ndistrict court decision stating that USPTO registrations are not\nsuﬃciently reliable for the court to take judicial notice of\nthem, not that they are unreliable evidence altogether. Face-\nbook, Inc. v. Teachbook.com LLC, 819 F. Supp. 2d 764, 772 (N.D.\nIll. 2011). And USPTO registrations using “pizza puﬀ” are\nprobative of how other companies in the food industry use\nthat term even if they are inactive. Spraying Sys., 975 F.2d at\n393 (“[T]hose [registered trademarks] that are not [in current\nuse] can still be probative on the issue of descriptiveness.”).\n Not all of Little Caesars’ evidence of genericness is as com-\npelling. Online recipes for pizza puﬀs have low evidentiary\nvalue because the internet is replete with copycat recipes\nteaching home cooks how to replicate popular, often trade-\nmarked, dishes at home (e.g., recipes for homemade Hot-\nPockets, Pop-Tarts, etc.). 10 Little Caesars also introduced evi-\ndence of menus listing “pizza puﬀ” alongside generic food\n\n\n\n 10 See Illinois Tamale Co. v. El-Greg, Inc., No. 16 C 5387, 2018 WL 1534971\n\nat 5 (N.D. Ill. Mar. 29, 2018) (“There are also thousands of recipes for a\nhomemade version of Hot Pockets, another speciﬁc brand of stuﬀed sand-\nwich. The existence of such recipes does not necessarily suggest that ‘Hot\nPockets’ is a generic term [but rather] that Hot Pockets are a well-known\nbrand that home cooks want to replicate.” (citation modiﬁed)).\n\fNos. 24-3317 et al. 17\n\nitems, indicating the term is used widely in the industry as a\ngeneric term. See Miller Brewing, 561 F.2d at 80 (ﬁnding “light”\ngeneric in part because it is “widely used in the beer indus-\ntry”). These menus provide some support for genericness, but\nunlike the evidence in Miller Brewing showing others in the\nbeer industry used “light” to describe their own distinct prod-\nucts, it is unclear whether the menus Little Caesars cited refer\nto the restaurants’ own products or to Iltaco’s, given Iltaco\nsells its food products to third-party restaurants. Little Cae-\nsars nevertheless contends the menus support genericness be-\ncause placing “pizza puﬀ” alongside generic terms like\n“fries” and “hot dog” must mean “pizza puﬀ” is generic. But\nagain, because Little Caesars did not show 11 the menus refer-\nenced anything but Iltaco’s product, they do not necessarily\nshow others in the industry do not associate “pizza puﬀ” with\nIltaco.\n Even so, the district court ultimately erred by ﬁnding Il-\ntaco was likely to succeed in showing “Pizza Puﬀ” is protect-\nable because the court failed to apply the primary signiﬁcance\ntest and the record did not support its ﬁnal decision. Little\nCaesars’ consumer survey data, dictionary deﬁnitions, and\nUSPTO registrations showing generic usage were suﬃcient to\novercome the presumption of trademark validity, and Iltaco\ndid not show how it could overcome this evidence at trial to\nprove “Pizza Puﬀ” is a protectable mark. Iltaco thus failed to\ncarry its burden of showing a likelihood of success on the\n\n\n 11 Little Caesars must make an aﬃrmative showing because it bears\n\nthe burden of overcoming the presumption of protectability inherent to\nincontestable marks. See Liquid Controls, 802 F.2d at 936 (“The burden is on\nthe defendant to overcome the presumption.”).\n\f18 Nos. 24-3317 et al.\n\nmerits, so the district court should not have granted its motion\nfor preliminary injunction.\n 2. Fair Use Analysis\n Even if “Pizza Puﬀ” is suﬃciently distinctive to merit pro-\ntection under the Lanham Act, Iltaco cannot prevail without\nshowing how it will successfully counter Little Caesars’ fair\nuse defense. A defendant in a trademark infringement case\nmay invoke the “fair use” defense by demonstrating that (1) it\nused the phrase at issue in a non-trademark capacity, (2) the\nphrase is descriptive of its goods and services, and (3) it used\nthe phrase “fairly and in good faith” only to describe its\ngoods. § 1115(b)(4); see also Sands, Taylor & Wood Co. v. Quaker\nOats Co., 978 F.2d 947, 951 (7th Cir. 1992); Packman, 267 F.3d at\n639.\n Little Caesars asserted a fair use defense in response to Il-\ntaco’s preliminary injunction motion, but the district court re-\njected the defense based on the second prong, 12 explaining:\n The defendants have not shown that “PIZZA PUFFS”\n is descriptive of their goods. The defendants[’] product\n looks like a mini-pizza or a pizza muﬃn or a pizza cup-\n cake or a pizza bite. It is not apparent what part of the\n defendants’ product is a puﬀ, which means that the\n mark is not descriptive of the defendants’ goods.\n The district court erred in reaching this conclusion be-\ncause it misapplied the relevant legal standard to determine\nwhether “Pizza Puﬀ” is descriptive of Little Caesars’ product.\nThe district court mistakenly required Little Caesars’ product\n\n\n 12 Because the district court did not address the ﬁrst or third prongs\n\nof fair use, we do not address them here.\n\fNos. 24-3317 et al. 19\n\nto be a pizza puﬀ for the term to apply descriptively. In fact,\nthe term need only refer to a characteristic of the product.\nF. Corp., 903 F.2d at 444. We identiﬁed a similar problem in\nQuaker Oats, where the district court erred by requiring a de-\nscriptive term to “bring to mind the product in question.” 978\nF.2d at 952. We explained “it is not necessary that a descrip-\ntive term depict the [product] itself, but only that the term re-\nfer to a characteristic of the [product].” Id. (quoting F. Corp., 903\nF.2d at 444). The district court should have considered\nwhether “Pizza Puﬀ” fairly described a characteristic or qual-\nity of Little Caesars’ Crazy Puﬀs product, not whether Crazy\nPuﬀs are pizza puﬀs.\n Under the correct test, the district court’s determination\nthat “Pizza Puﬀ” is not descriptive falls short. A Little Caesars\nrepresentative testiﬁed that “Crazy Puﬀs” are “light and airy\nmuﬃns” that are “puﬀy.” No one disputes that Crazy Puﬀs\nare ﬁlled with pizza ingredients like cheese, tomato sauce,\nmeat, and vegetables. This evidence fairly shows that “Pizza\nPuﬀ” describes a Crazy Puﬀ, which is a puﬀy and airy muﬃn\ncontaining pizza ingredients. And “Pizza Puﬀ” appears as\npart of the phrase “4 Hand-Held Pizza Puﬀs,” which is clearly\ndescribing the quantity, size, and type of food customers can\nexpect when they purchase a Crazy Puﬀ. The district court\ndid not consider this evidence or explain how Iltaco could\ncounter it at trial. Because the district court applied the wrong\nstandard, the district court abused its discretion in granting\nthe preliminary injunction for “Pizza Puﬀ.” See Lawson Prods.,\n782 F.2d at 1437 (“[A] factual or legal error may alone be suf-\nﬁcient to establish that the court ‘abused its discretion’ in\nmaking its ﬁnal determination.”).\n\f20 Nos. 24-3317 et al.\n\nB. “Crazy Puﬀs” and “Puﬀ”\n The district court found Iltaco failed to meet its burden\nwith respect to Little Caesars’ use of its “Crazy Puﬀs” mark\nbecause Iltaco did not show there was a likelihood of confu-\nsion between Little Caesars’ “Crazy Puﬀs” mark and Iltaco’s\n“Pizza Puﬀ” or “Puﬀ” marks. The court did not clearly err in\neither determination, so we aﬃrm its decision regarding both\nmarks.\n The district court correctly rejected Iltaco’s suggestion that\n“Crazy Puﬀs” and “Pizza Puﬀ” were confusingly similar be-\ncause both contain the word “Puﬀ.” When evaluating the like-\nlihood of confusion between marks, “we must keep in mind\nthat ‘[t]he commercial impression of a trade-mark is derived\nfrom it as a whole, not from its elements separated and con-\nsidered in detail.’” Grubhub, 80 F.4th at 848 (quoting Est. of\nP.D. Beckwith, Inc. v. Comm'r of Pats., 252 U.S. 538, 545–46\n(1920)). Thus, we cannot look at “Puﬀ” (from “Crazy Puﬀs”)\nin isolation and ﬁnd it confusingly similar to “Puﬀ” in Iltaco’s\n“Pizza Puﬀ” name. We must consider the “Crazy Puﬀs” mark\nin its entirety, as the district court rightly explained.\n Viewing the “Crazy Puﬀs” mark as a whole, the district\ncourt did not err in ﬁnding no likelihood of confusion with\n“Pizza Puﬀ.” The court found the two terms are signiﬁcantly\ndiﬀerent because Iltaco’s mark denotes the ingredients found\nin the product while Little Caesars’ mark uses “Crazy” to tie\nits product to its own family of Crazy marks. Iltaco’s mark\ndescribes what a consumer can expect to ﬁnd inside the puﬀ,\nwhile Little Caesars’ mark designates its brand. Though the\ncourt found other likelihood-of-confusion factors may favor\nIltaco, it held “the diﬀerence in the marks’ overall impression\n\fNos. 24-3317 et al. 21\n\nprecludes ﬁnding a likelihood of success by the plaintiﬀ on\nlikelihood of confusion.”\n A district court has broad “ﬂexibility to determine what\n[likelihood-of-confusion] factors are most critical in a case.”\nTy, Inc. v. Jones Grp., Inc., 237 F.3d 891, 901 (7th Cir. 2001). And\nbecause the similarity of the marks is one of the most im-\nportant considerations, a district court does not abuse its dis-\ncretion by ﬁnding no likelihood of confusion based on dissim-\nilar marks even when other factors weigh in favor of confu-\nsion. Eli Lilly & Co. v. Nat. Answers, Inc., 233 F.3d 456, 462 (7th\nCir. 2000). Here, the district court made a reasoned determi-\nnation that the two marks were not similar and did not abuse\nits discretion in weighing the similarity factor heavily to ﬁnd\nno likelihood of success in showing likelihood of confusion.\n * * *\n Because Iltaco did not show it is likely to succeed in prov-\ning that “Pizza Puﬀ” is protectable or rebutting Little Caesars’\nfair use defense at trial, Iltaco has not established a likelihood\nof success on the merits. Accordingly, we do not proceed to\nthe harms-balancing or public interest steps of the prelimi-\nnary injunction analysis. See Grubhub, 80 F.4th at 844 (“[Only]\n[u]pon a showing of [likelihood of success on the merits], the\ncourt weighs the harm of denying an injunction.”).\n The district court abused its discretion by granting the pre-\nliminary injunction as to “Pizza Puﬀ,” but did not abuse its\ndiscretion in denying the injunction regarding “Crazy Puﬀs”\nor “Puﬀ.”\n The judgment of the district court is\n AFFIRMED IN PART AND REVERSED IN PART.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11242196/", "author_raw": "ST. EVE, Circuit Judge"}]}	SCUDDER	ST EVE	JACKSON-AKIWUMI	1		{"SCUDDER": ", Circuit", "ST EVE": ", Circuit", "JACKSON-AKIWUMI": ", Circuit"}	2	0	0	2	null	https://www.courtlistener.com/api/rest/v4/clusters/10775609/	Published	2	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,768,251	Thomas Sanderson v. Catherine Hanaway	2026-01-02	24-3120	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Before LOKEN, KELLY, and ERICKSON, Circuit Judges.", "parties": "", "opinions": [{"author": "KELLY, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 24-3120\n ___________________________\n\n Thomas L. Sanderson, an individual\n\n Plaintiff - Appellee\n\n v.\n\nCatherine L. Hanaway, in her official capacity as Attorney General of the State of\n Missouri\n\n Defendant - Appellant\n\n James Hudanick, in his official capacity as Chief of Police of the City of\n Hazelwood, Missouri\n\n Defendant\n ___________________________\n\n No. 24-3204\n ___________________________\n\n Thomas L. Sanderson, an individual\n\n Plaintiff - Appellee\n\n v.\n\nCatherine L. Hanaway, in her official capacity as Attorney General of the State of\n Missouri\n\n Defendant\n\f James Hudanick, in his official capacity as Chief of Police of the City of\n Hazelwood, Missouri\n\n Defendant - Appellant\n ____________\n\n Appeals from United States District Court\n for the Eastern District of Missouri - St. Louis\n ____________\n\n Submitted: September 16, 2025\n Filed: January 2, 2026\n ____________\n\nBefore LOKEN, KELLY, and ERICKSON, Circuit Judges.\n ____________\n\nKELLY, Circuit Judge.\n\n Thomas Sanderson challenged a Missouri statutory provision that required all\nregistered sex offenders, such as himself, to post a sign at their residence on\nHalloween stating, “No candy or treats at this residence.” Concluding that this\nmandate violated the First Amendment, the district court permanently enjoined its\nenforcement statewide. Defendants appeal.\n\n I.\n\n Since 2000, Thomas Sanderson and his family have consistently set up large,\nelaborate Halloween displays involving decorations, sound effects, and fog\nmachines. But when Sanderson was convicted of a sex offense in 2006 and ordered\nto serve a term of imprisonment, those displays ceased. While he was incarcerated,\nMissouri passed a law restricting registered sex offenders from participating in\nHalloween:\n\n\n\n\n -2-\n\f 1. Any person required to register as a sexual offender under sections\n 589.400 to 589.425 shall be required on October thirty-first of each year\n to:\n (1) Avoid all Halloween-related contact with children;\n\n (2) Remain inside his or her residence between the hours of 5\n p.m. and 10:30 p.m. unless required to be elsewhere for just\n cause, including but not limited to employment or medical\n emergencies;\n\n (3) Post a sign at his or her residence stating, “No candy or treats\n at this residence”;\n\n (4) Leave all outside residential lighting off during the evening\n hours after 5 p.m.\n\n 2. Any person required to register as a sexual offender under sections\n 589.400 to 589.425 who violates the provisions of subsection 1 of this\n section shall be guilty of a class A misdemeanor.\n\nMo. Rev. Stat. § 589.426 (2008) (Halloween statute). Upon his release from custody,\nSanderson asked the St. Louis County Police Department and, later, the Hazelwood\nPolice Department if he was required to abide by the Halloween statute, given it was\nenacted after the date of his conviction. Both assured him that he had been\n“grandfathered in” and thus could continue participating in Halloween festivities.\n\n For the next fourteen years, Sanderson’s Halloween displays continued, and\nthey grew more extravagant with each year. But in 2022, Hazelwood police received\na call that a sex offender was participating in Halloween, and Sanderson was\nconsequently arrested, charged, and convicted for violating the Halloween statute.\n\n The validity of that conviction is not before us. Instead, Sanderson brought a\nfacial challenge to the Halloween statute under the First Amendment, specifically\narguing that subsection 1(3)—the sign mandate—unconstitutionally compelled the\nspeech of all individuals required to register as sex offenders in the state. Just before\nHalloween 2024, the district court found Sanderson was likely to succeed on the\n -3-\n\fmerits and entered a preliminary injunction. Then, after a bench trial, the district\ncourt found the sign mandate unconstitutional and entered a permanent injunction\npreventing Defendants (the State) from enforcing it anywhere in Missouri.\n\n The State appeals. Only subsection 1(3) of the Halloween statute is at issue in\nthis appeal.\n\n II.\n\n A.\n\n “After a bench trial, this court reviews legal conclusions de novo and factual\nfindings for clear error.” Howard v. United States, 964 F.3d 712, 716 (8th Cir. 2020)\n(quoting Kaplan v. Mayo Clinic, 847 F.3d 988, 991 (8th Cir. 2017)). “Under the\nclearly erroneous standard, we will overturn a factual finding only if it is not\nsupported by substantial evidence in the record, if it is based on an erroneous view\nof the law, or if we are left with the definite and firm conviction that an error was\nmade.” Id. (quoting Roemmich v. Eagle Eye Dev., LLC, 526 F.3d 343, 353 (8th Cir.\n2008)). “There is a strong presumption that the factual findings are correct.” Id.\n(quoting Urb. Hotel Dev. Co. v. President Dev. Grp., L.C., 535 F.3d 874, 879 (8th\nCir. 2008)).\n\n That said, “[a]n appellate court’s review . . . is unique in the context of a First\nAmendment claim.” Doe v. Pulaski Cnty. Special Sch. Dist., 306 F.3d 616, 621 (8th\nCir. 2002) (en banc) (citing New York Times Co. v. Sullivan, 376 U.S. 254, 284–85\n(1964)). In First Amendment cases, the court must “make an independent\nexamination of the whole record,” which is “not necessarily a de novo review of all\nthe facts relevant to the ultimate judgment entered.” Id. (first quoting Sullivan, 376\nU.S. at 285; and then citing Fams. Achieving Indep. and Respect v. Neb. Dep’t of\nSoc. Servs., 111 F.3d 1408, 1411 (8th Cir. 1997)). Accordingly, facts irrelevant to\nthe free speech issue are reviewed for clear error, whereas the facts “crucial to the\nFirst Amendment inquiry” receive a “fresh examination.” Id. (quoting Fams.\n -4-\n\fAchieving Indep. and Respect, 111 F.3d at 1411). The court is not bound by the\ndistrict court’s determinations of the credibility of witnesses, but “we remain\ncognizant that the district court is in the best seat to observe the demeanor of the\nwitnesses.” Id.\n\n A facial challenge is successful only if “a law’s unconstitutional applications\nare substantial compared to its constitutional ones.” GLBT Youth in Iowa Schs. Task\nForce v. Reynolds, 114 F.4th 660, 669 (8th Cir. 2024) (quoting Moody v. NetChoice,\nLLC, 603 U.S. 707, 718 (2024)). That analysis proceeds in three steps. First, we\n“assess the [law’s] scope, which includes consideration of what activities by what\nactors [does] the law[] prohibit or regulate.” Id. (citing Moody, 603 U.S. at 724).\nSecond, we “determine which of the [law’s] applications violate the First\nAmendment.” Id. at 669–70. Third, we “must measure the unconstitutional\napplications against the remaining provisions.” Id. at 670.\n\n B.\n\n The sign mandate has, in effect, one application: those required to register as\nsex offenders, regardless of their underlying offense, must post a sign bearing the\nphrase “no candy or treats at this residence.” Mo. Rev. Stat. § 589.426.1(3). Because\nthe statute does not apply differently to anyone within the category of those required\nto register, we need only consider whether that sole application violates the First\nAmendment. See NetChoice, LLC v. Bonta, 113 F.4th 1101, 1116 (9th Cir. 2024).\n\n C.\n\n The First Amendment’s protection “includes both the right to speak freely and\nthe right to refrain from speaking at all.” Wooley v. Maynard, 430 U.S. 705, 714\n(1977) (citations omitted). In other words, compelling an individual to “personally\nspeak the government’s message” or “host or accommodate another speaker’s\nmessage” contravenes the First Amendment. Rumsfeld v. F. for Acad. &\nInstitutional Rts., Inc. (FAIR), 547 U.S. 47, 63 (2006); see also Riley v. Nat’l Fed’n\n -5-\n\fof the Blind of N.C., Inc., 487 U.S. 781, 790–91 (1988) (“The First Amendment\nmandates that we presume that speakers, not the government, know best both what\nthey want to say and how to say it.”). And “[c]ompelled statements of fact . . . like\ncompelled statements of opinion, are subject to First Amendment scrutiny.” Ark.\nTimes LP v. Waldrip as Tr. of Univ. of Ark. Bd. of Trs., 37 F.4th 1386, 1394 (8th\nCir. 2022) (en banc) (quoting FAIR, 547 U.S. at 62)); Riley, 487 U.S. at 797–98\n(“These cases cannot be distinguished simply because they involved compelled\nstatements of opinion while here we deal with compelled statements of ‘fact’: either\nform of compulsion burdens protected speech.”).\n\n However, the First Amendment is not implicated when the speech “is plainly\nincidental to the [law’s] regulation of conduct, and ‘it has never been deemed an\nabridgment of freedom of speech or press to make a course of conduct illegal merely\nbecause the conduct was in part initiated, evidenced, or carried out by means of\nlanguage, either spoken, written, or printed.” FAIR, 547 U.S. at 62 (quoting Giboney\nv. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949)). For example, laws banning\nthe conduct of discrimination in the workplace would incidentally prevent the speech\nof posting a sign that says, “Whites Only.” See id. (citing R.A.V. v. St. Paul, 505\nU.S. 377, 389 (1992)). Likewise, the Solomon Amendment, which explicitly\nrequired law schools to allow the military to recruit on its campus, only incidentally\nrequired the school to circulate messages about the presence of recruiters on campus.\nId. at 61–62 (“[R]ecruiting assistance provided by the schools often includes\nelements of speech.”)\n\n The sign mandate—the sole provision challenged here—is not merely\nincidental to conduct: it explicitly requires registrants to post a sign bearing a specific\nmessage. Mo. Rev. Stat. § 589.426.1(3). True, the other three provisions of the\nHalloween statute regulate a registrant’s conduct. See Mo. Rev. Stat. § 589.426.1.\nBut the sign mandate requires only speech (the posting of a sign with the\ngovernment’s message), not any other related conduct. Id. § 589.426.1(3). In fact, it\nrequires verbatim speech. See FAIR, 547 U.S at 62 (noting that unlike the laws at\nissue in compelled speech cases, the Solomon Amendment “does not dictate the\n -6-\n\fcontent of the speech at all”). Because the sign mandate (1) explicitly requires\nregistrants to speak the government’s message in the form of a sign at their residence,\nand (2) dictates specifically what that sign must say, it compels speech.\n\n In short, we agree with the district court that the sign mandate compels speech\nand, thus, is unconstitutional unless it can survive strict scrutiny.\n\n D.\n\n The sign mandate will survive strict scrutiny only if it “furthers a compelling\ninterest and is narrowly tailored to achieve that interest.” Miller v. Ziegler, 109 F.4th\n1045, 1050 (8th Cir. 2024) (quoting Citizens United v. FEC, 558 U.S. 310, 340\n(2010)). The district court found that “Defendants have established a compelling\ninterest in restricting certain conduct of sexual offenders on Halloween that satisfies\nthe strict scrutiny standard.” Neither party challenges that determination on appeal,\nand understandably so. We therefore move directly to the question of whether the\nstatutory provision is narrowly tailored. In other words, is the sign mandate the least\nrestrictive means of achieving the government’s compelling interest? See United\nStates v. Playboy Ent. Grp., Inc., 529 U.S. 803, 813 (2000).\n\n At trial, the State’s witnesses offered several justifications for the sign\nmandate. Law enforcement officers testified that the signs were beneficial for\nenforcement purposes because the signs (1) allow them to “be able to ensure that\nthere is compliancy,” (2) make enforcement of the Halloween statute more efficient,\nand (3) provide an extra layer of protection for children.\n\n The evidence presented, however, failed to show how the sign mandate\nachieved these goals. The statute does not set any requirements for the size or the\nlocation of the mandated signs. According to one law enforcement officer, a\nregistrant could put “a little itty-bitty [] Post-it [note]” on the door and still be in\ncompliance, so long as the note had “the correct verbiage.” Another law enforcement\nwitness confirmed that a compliant sign “could be as small as a postage stamp.” Both\n -7-\n\fofficers further testified that, under the statute, a registrant would still be in\ncompliance even if the sign was on the back door or inside the house. Even if a sign\ncould result in greater efficiency for law enforcement and heightened protection for\nchildren, a sign that is not visible to law enforcement or trick-or-treating children\nfails to serve either purpose.\n\n The efficiency rationale was also premised on the idea that, with the signs,\nofficers do not have to exit their vehicles to ensure compliance with the Halloween\nstatute. But one officer testified that even if he does not see a sign from the driveway,\n“that doesn’t necessarily mean they are in violation of [the sign mandate].” And\nanother agreed that officers “can drive by and see if the lights are on the house\nwithout getting out of the car. . . . [T]he fact that a sign isn’t posted isn’t going to\nmake it more necessary for an officer to get out of their car[.]” Rather, “[t]he sign\nsimply allows [officers] to have that extra provision that [they] are checking the right\nhome.” Indeed, the Chief of Police testified that his officers still enforced the\nremaining provisions of the Halloween statute when the preliminary injunction was\nin place, and there was no evidence that the statute was more difficult to enforce\nwithout the signs than with them.\n\n Even when the signs are visible and legible from the driveway or the porch,\nthere was no convincing evidence presented that they add anything to advance the\ngoal of protecting children. One officer, based on her personal, rather than\nprofessional, experience trick-or-treating, said that having the exterior lights off on\nHalloween “means absolutely nothing” and that children will still approach the\nhouse. A second officer testified that the sign mandate was necessary because, unlike\nleaving lights off, the sign was “not ambiguous.” Yet this officer did not demonstrate\nhow any such ambiguity would put children at risk. Rather, she wanted parents “to\nhave a clear understanding that there is a potential danger at that location.” Given\nthe publicly accessible sex offender database, coupled with the remaining provisions\nof the Halloween statute, this testimony likewise does not establish a specific need\nfor the sign mandate. In any event, the State’s sole expert, who testified to the\ncompelling interest by demonstrating that Halloween presented unique risks for\n -8-\n\fgrooming that could lead to future abuse, could not provide any evidence for the\nclaim that signs provide any additional protection beyond the other restrictions\nimposed on registrants in the Halloween statute. There was no evidence to support\nthe idea that children would be at risk if there was no sign, so long as the registrant\ncomplied with the remaining provisions of the statute (i.e., remaining inside the\nresidence, not giving candy to or otherwise engaging with children, and leaving\nlights off). In other words, nothing in the record indicates that a child knocking on a\ndoor that no one opens presents a risk to that child.\n\n We agree with the State that narrow tailoring does not require “perfect”\ntailoring. Here, however, there is insufficient evidence to support the State’s\nassertion that the sign mandate is the least restrictive means of achieving its goals.\nThe record does not support the claim that, despite the remaining provisions of the\nHalloween statute, the sign mandate is necessary to further the government’s\ncompelling interest in protecting children on Halloween. Accordingly, the sign\nmandate burdens more speech than necessary and fails strict scrutiny.1 See\nMcClendon v. Long, 22 F.4th 1330 (11th Cir. 2022) (concluding that when a local\nSheriff’s office made signs carrying the message “NO TRICK-OR-TREAT AT\nTHIS ADDRESS” and placed them in registrants’ yards, the signs were compelled\nspeech and they were not narrowly tailored to the compelling interest of protecting\nchildren from sexual abuse).\n\n\n\n\n 1\n The State argues on appeal that the sign mandate was at least properly applied\nto sexually violent predators. But the only evidence presented on the subcategory of\nsexually violent predators was that, after release from civil commitment, they would\nbe required to abide by the sign mandate. No evidence was presented at trial that\nsexually violent predators, once released, pose a different level of risk than any other\nperson required to register, despite the district court allowing the State to elicit such\ntestimony. Without any evidence in the record to suggest the sign mandate is\nnarrowly tailored to this subcategory, there is no basis upon which to conclude that\nany “other application” of the law, presuming it existed, would be constitutional.\n -9-\n\f E.\n\n In the alternative, the State argues that a new trial is warranted because it was\nimproperly prevented from introducing evidence about Sanderson. We review a\ndistrict court’s evidentiary rulings for abuse of discretion. United States v. Spotted\nHorse, 914 F.3d 596, 600 (8th Cir. 2019) (citing Chism v. CNH Am. LLC, 638 F.3d\n637, 640 (8th Cir. 2011)). Even then, we will reverse only “when an improper\nevidentiary ruling affected the defendant’s substantial rights or had more than a\nslight influence on the verdict.” Id.\n\n The State sought to introduce evidence of Sanderson’s “dangerousness and\nsex-offense history,” but the district court excluded it on relevancy grounds. We\ndiscern no abuse of discretion in that decision. Regardless, this evidentiary ruling\nneither affected the State’s substantial rights nor had any influence on the verdict.\n\n As an initial matter, Sanderson stipulated to the fact of his criminal history\nand the admission of exhibits about his underlying conduct. Although the State also\nwanted to introduce testimony from B.C., the victim in Sanderson’s underlying sex\nconviction, her testimony would have been cumulative. As the district court\nexplained:\n\n The Court: The actual facts are not at issue in this case. He was\n convicted of the offense. That’s a part of the record. Move on to another\n question.\n\n [State’s counsel]: Yes, your Honor.\n\n [State’s counsel to B.C.:] Understanding the Judge knows – or will\n know, based on the evidence that’s been provided and agreed upon in\n the record regarding the case that you testified in, I want to zoom out a\n little bit now[.]\n\n\n\n -10-\n\fThe district court had at its disposal Sanderson’s entire criminal record, including\npolice reports and other records related to his case involving B.C. This evidence was\nsufficient to support the State’s theory of Sanderson’s “dangerousness,” even\nwithout B.C.’s testimony.\n\n More importantly, even if the evidence had been admitted, it would not have\naffected the verdict. That is because any evidence of Sanderson’s dangerousness—\neither from B.C. or from the State’s expert, who never met or conducted an\nevaluation of Sanderson—would have supported only the compelling interest prong\nof the legal analysis. But, as discussed, the sign mandate failed strict scrutiny on the\nsecond prong: whether it was narrowly tailored. Nothing about the unique risks\nposed by Sanderson—or any other registrant for that matter—would have overcome\nthe sign mandate’s tailoring deficiency.2\n\n F.\n\n The permanent injunction in this case was entered prior to the Supreme\nCourt’s opinion in Trump v. CASA, 606 U.S 831 (2025). As a result, we vacate the\ninjunction and remand for the district court to consider the appropriate scope of\ninjunctive relief in accordance with that opinion.\n\n III.\n\n The district court’s ruling that the sign mandate in Missouri’s Halloween\nstatute facially violates the First Amendment is affirmed. We vacate the injunction,\nhowever, and remand for further proceedings on the scope of relief.\n ______________________________\n\n\n 2\n The State also argues that it was entitled to introduce this evidence to rebut\nSanderson’s testimony. But Sanderson testified about how the law applied to him\nonly for the limited purpose of establishing standing, which the State contested.\n\n -11-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11234836/", "author_raw": "KELLY, Circuit Judge."}]}	LOKEN	KELLY	ERICKSON	1		{"LOKEN": ", Circuit", "KELLY": ", Circuit", "ERICKSON": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10768251/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,768,916	United States v. Trina Johnson	2026-01-05	24-2837	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Before LOKEN, ERICKSON, and KOBES, Circuit Judges.", "parties": "", "opinions": [{"author": "LOKEN, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 24-2837\n ___________________________\n\n United States of America\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Trina Mae Johnson\n\n lllllllllllllllllllllDefendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the District of Minnesota\n ____________\n\n Submitted: June 11, 2025\n Filed: January 5, 2026\n ____________\n\nBefore LOKEN, ERICKSON, and KOBES, Circuit Judges.\n ____________\n\nLOKEN, Circuit Judge.\n\n On the eve of trial, after rejecting the government’s plea agreement offer of a\n120-month mandatory minimum sentence, Trina Mae Johnson pleaded guilty without\na plea agreement to child torture, child neglect, child endangerment, and assaulting\na minor with a dangerous weapon in violation of Minn. Stat. §§ 609.3775, 609.05,\n609.378 subdiv. 1(a)(1), 609.378 subdiv. 1(b)(1), and 18 U.S.C. §§ 113(a)(2) &\n3559(f)(3). See 18 U.S.C. § 1153. Three of these major crimes offenses have neither\n\fapplicable nor analogous sentencing guidelines, so determining the appropriate\nsentence is controlled by 18 U.S.C. § 3553(a). See 18 U.S.C. § 3742(a)(4).\n\n The Presentence Investigation Report (PSR) determined that the advisory\nguidelines sentencing range for the fourth conviction, assaulting a minor with a\ndeadly weapon, is 120 months imprisonment with a 10-year mandatory minimum.\nAt sentencing, the government requested a 20-year sentence. Expressing remorse,\nJohnson urged a sentence close to the government’s plea agreement offer of a 120-\nmonth mandatory minimum sentence. The district court1 overruled PSR objections\nunrelated to this appeal, considered the 18 U.S.C. § 3553(a) sentencing factors at\nlength, and imposed a sentence of 216 months imprisonment. Johnson appeals,\narguing the sentence is “plainly unreasonable” because the sympathy and empathy\nexpressed by the court in addressing victim L.D. during the sentencing hearing\nviolated Johnson’s due process right to judicial neutrality in sentencing. Concluding\nthat the court’s statements to the victim during the hearing were insufficient to\nestablish judicial bias, we affirm.\n\n I. Background\n\n In November 2020, when he was 11 years old, L.D. was placed in the foster\ncare of Johnson. In April 2022, Johnson brought L.D. to a youth shelter, claiming he\nwas “out of control” and harming himself. The youth shelter contacted Red Lake\nMinnesota Family and Child Services. An FBI investigation revealed that over the\ncourse of fifteen months, Johnson had subjected L.D. to sustained abuse, including\nsleep deprivation, starvation, denial of medical care, physical torture, and\npsychological torment. He lost 100 pounds, had multiple wounds and broken bones\nthat improperly healed, scarring in multiple locations from being stabbed by a knife\n\n\n 1\n The Honorable Katherine M. Menendez, United States District Judge for the\nDistrict of Minnesota.\n\n -2-\n\fand scissors on different occasions, brain injuries, and severe lasting mental and\nphysical trauma. He was described as “completely unrecognizable” compared to\nwhen he was placed in Johnson’s care. There were many serious abuses, carried out\nusing a wide range of inhumane and violent methods. Johnson had facilitated and\nencouraged those around her to further the abuse, including her sisters, partner, and\nother foster children under her care. The abuse and L.D.’s condition were concealed\nduring the COVID-19 pandemic by turning off his camera during online schooling,\nhiding him away when his sister visited, and demanding he tell others the injuries\nwere self-inflicted under the threat of further harm to him and his family.\n\n A federal indictment charged Johnson and four other participants in the abuse\nwith the four federal and Minnesota offenses. Three co-defendants pleaded guilty to\nCount 3, child endangerment. The fourth, Johnson’s sister, Bobbi Jo Johnson, did not\nplead guilty and was found guilty after a trial of child neglect and child\nendangerment. Prior to that trial, the government offered Johnson and Bobbi Jo a\n“wired” plea agreement, conditioned on both pleading guilty, of a 10-year mandatory\nminimum sentence and a maximum government-recommended sentence of 12 years.\nBecause Bobbi Jo refused the agreement and proceeded to trial, Johnson could not\naccept the government’s agreement. She instead pleaded guilty without an\nagreement. That plea is not at issue on appeal.\n\n Prior to sentencing, Johnson argued that a sentence comparable to the 12 years\nproposed in the government’s wired plea agreement was appropriate, claiming she\nwas prevented from accepting the agreement by her sister’s refusal. Johnson cited\nvarious mitigating factors, including prior personal traumas and post-offense\nrehabilitation efforts. Absent a plea agreement, the government requested a sentence\nof 240 months imprisonment based on the severity of the crimes, Johnson’s\nminimization of responsibility in claiming L.D.’s misbehavior warranted punishment,\nand its review of various guideline provisions. The government urged the court to\ndisregard its prior offer because it would have been non-binding on the court, and it\n\n -3-\n\fwas offered to spare L.D. the trauma of testifying, which he was required to do at\nBobbi Jo’s trial.\n\n During the sentencing hearing, the district court heard L.D.’s victim impact\nstatement describing the treatment and lasting effects of the abuse, which was read\ninto the record by his sister, and impact statements from L.D.’s new foster parents.\nAfter these statements, the judge directly addressed L.D.:\n\n There is something I want to say to you, and it is that I think you\n might be the strongest person I have ever come across. And I have been\n involved in the criminal justice system for a really long time, so I’ve\n seen some tough people. But it takes extraordinary strength to survive\n what you survived, and it takes a lot of strength to keep on surviving.\n And I am so, so glad that you did. I’m so glad that you held on.\n\n And I am really grateful to your foster family, that you landed\n somewhere wonderful, because I think that we are going to see every\n day a little bit more the kind and sweet kid that is inside of you that’s\n already come out.\n\n One of the things that I am most struck by in the things that I’ve\n learned about you, and I’ve learned a lot, is the compassion that you\n show to other people. It’s something that they talked about at Evergreen\n [youth shelter]. It’s something that the FBI agent talked about. It’s\n something that your family talked about. And it’s something that’s clear\n to me when you talk about how much you worry about your niece and\n nephew.\n\n One of the things that I’ve thought a lot about is that you weren’t\n just fragile when you got to Evergreen. You were fragile when you got\n to Trina’s house too. You had already been through more in your almost\n 12 years than anybody should, and that child deserved love and care and\n protection. That child was already struggling with a lot of stuff that\n you’d already been through. And it’s heartbreaking that that didn’t\n happen for you until now.\n\n -4-\n\f And the last thing I want to say is that I think I understand that\n your sister has passed away also? . . . And I’m really sorry about that.\n But I know that -- I know that she and everybody else in your family,\n whether they’re here or not, is proud of you today. And I just wanted\n you to hear that from me.\n\n The district court then ruled on objections raised and proceeded to consider the\n§ 3553(a) factors, extensively balancing the mitigating and aggravating factors in\ndetail. The court noted Johnson’s prior traumas, her time already served, her efforts\nfor rehabilitation, and how there was something “kind of unfair” about being denied\nthe plea agreement because her sister insisted on a trial. On the other hand, the court\nconsidered the extent and duration of the abuse, her engagement of others in the\ncrimes, and her efforts at concealment. The judge concluded:\n\n The reason I am not giving the 240 months requested by the government\n is that I think it slightly undervalues the acceptance of responsibility of\n the straight plea, and I want to give credit for the six months that were\n served in Red Lake County Jail. But any less would not give adequate\n weight to the trauma that [Johnson] has inflicted on such a long list of\n victims, the first of which is [L.D.], who I will quote again, saying “I am\n a kid and you’re an adult, and you’re supposed to take care of me.” And\n to picture the 11-year-old and 12-year-old boy that he was enduring this\n for 18 months is hard to do.\n\n The court sentenced Johnson to 216 months imprisonment, below the\ngovernment’s requested sentence. Johnson did not object to the court’s statement to\nL.D., its conduct toward the defense at sentencing, or argue that judicial bias\nwarranted the court’s recusal.\n\n II. Discussion\n\n On appeal, Johnson argues the district court’s overwhelming empathy for\nvictim L.D. as expressed at the sentencing hearing violated her procedural due\n\n -5-\n\fprocess right “to an impartial and disinterested tribunal,” which is rooted in the\n“requirement of neutrality.” Marshall v. Jerrico, Inc. 446 U.S. 238, 242 (1980). At\nor before sentencing, Johnson did not object or question the court’s neutrality,\nwhether the district judge should recuse, or whether the sentence imposed reflects\nundue bias and is therefore unreasonable. Therefore, she concedes that our review\nis for plain error. United States v. Minard, 856 F.3d 555, 557 (8th Cir. 2017) (citation\nomitted).\n\n Unlike Johnson, the defendant in Minard filed a timely motion in the district\ncourt under Rule 35 of the Federal Rules of Criminal Procedure “alleging that the\ndistrict court’s statement to the crime victim at sentencing ‘might have caused the\nCourt to lack impartiality resulting in a harsher sentence.’” Id. at 556. But he did not\nobject or move for recusal at sentencing, so our review was for plain error.2 Unlike\nthe defendant in Minard, Johnson did not file a timely Rule 35 motion to correct or\nreduce her sentence, so she gave the district court no opportunity to respond to her\ndue process argument and claim of judicial partiality. Moreover, a timely claim for\npost-sentence relief under Rule 35 or 28 U.S.C. § 2255 would be based on the\nstatutory bias and disqualification requirements of 28 U.S.C. §§ 144 and 455; a\nclaimant must “utilize the procedures available to him under” those provisions.\nHolloway v. United States, 960 F.2d 1348, 1354 (8th Cir. 1992). “Relief under\nsection 144 is expressly conditioned on the timely filing of a legally sufficient\naffidavit,” and “claims under [§ 455] will not be considered unless timely made.” Id.\nat 1355 (citations and quotations omitted). If these Holloway principles apply to the\nstatutory claim of the bias alleged in this case, we would have no jurisdiction to\nconsider the claim because it was not preserved in the district court. But there are\ncases where we have conducted plain error review of judicial bias claims first asserted\n\n 2\n We observed that “Minard cites no case, and we have found none, in which\nRule 35 relief was granted because the sentencing judge failed to recuse sua sponte,”\nId. at 557. Not surprisingly, Johnson cites no case in which an unpreserved claim for\ndue process relief was granted on appeal for this reason.\n\n -6-\n\fon appeal, and this case involves an unpreserved due process claim of judicial bias\nor lack of neutrality, not a statutory claim. Although the question has not been\nbriefed nor apparently considered by any other circuit, we doubt that we have\nappellate jurisdiction to consider Johnson’s unpreserved due process claim of judicial\nbias but conclude we need not decide the question.\n\n Even if we do have jurisdiction to consider Johnson’s due process claim, we\nconclude that it is without merit. Under plain error review, we will affirm unless\n“there was (1) an error, (2) that is clear and obvious, (3) that affected substantial\nrights, and (4) that seriously affected the fairness, integrity or public reputation of\njudicial proceedings.” United States v. Ingram, 91 F.4th 1271, 1273 (8th Cir. 2024).\n“[A] judge is presumed to be impartial and the party seeking disqualification bears\nthe substantial burden of proving otherwise.” United States v. Ali, 799 F.3d 1008,\n1017 (8th Cir. 2015) (quotations omitted).\n\n Though “[a] judge must recuse if his impartiality might reasonably be\nquestioned because of bias or prejudice,” United States v. Burnette, 518 F.3d 942,\n945 (8th Cir. 2008), quoting 28 U.S.C. § 455, “opinions formed by the judge on the\nbasis of facts introduced or events occurring in the course of the current proceedings,\nor of prior proceedings, do not constitute a basis for a bias or partiality motion unless\nthey display a deep-seated favoritism or antagonism that would make fair judgment\nimpossible.” Id., quoting Liteky v. United States, 510 U.S. 540, 555 (1994). “Rules\nagainst ‘bias’ and ‘partiality’ can never mean to require the total absence of\npreconception, predispositions and other mental habits.” Id. (quotation omitted).\nDenial of due process requiring recusal is appropriate in “various situations . . . in\nwhich experience teaches that the probability of actual bias on the part of the judge\nor decisionmaker is too high to be constitutionally tolerable,” such as when “the\nadjudicator has a pecuniary interest in the outcome . . . [or] has been the target of\npersonal abuse or criticism from the party before him.” Withrow v. Larkin, 421 U.S.\n\n\n\n -7-\n\f35, 47 (1975). Judge Menendez’s statements at sentencing fall far short of this high\nbar for establishing bias.\n\n Focusing on the writing of “scholars” who have identified “phenomena\ncaptured by the word” empathy, Johnson argues that the empathy for victim L.D.\nexpressed by the district court at the sentencing hearing “fell over the hard edge of\nfairness,” and “[p]rejudice to Ms. Johnson is found in the uneasy balancing that\nempathy requires.” This contention finds no support in reported recusal caselaw and\nis contrary to the principle that a judge’s opinions formed “on the basis of facts\nintroduced or events occurring in the course of the current proceedings . . . do not\nconstitute a basis for a bias or partiality motion unless they display a deep-seated\nfavoritism or antagonism that would make fair judgment impossible.” Liteky, 510\nU.S. at 555. Judge Menendez’s comments, directed to a young victim struggling to\nexpress the impact of the horrible abuse he had endured, understandably expressed\nsympathy -- and empathy -- for enduring the physical and emotional harm caused by\nthe defendant’s crime. This is not a case where the judge “shed [her] robe . . . and .\n. . assumed the mantle of the advocate.” Reserve Mining Company v. Lord, 529 F.2d\n181, 185 (8th Cir. 1976). As in Minard, we conclude there was no bias or partiality\nreflected when the judge spoke directly to a victim after the victim addressed the\ncourt during sentencing and expressed empathy for the harm caused by the\ndefendant’s crime. 856 F.3d 555-57. We noted in Minard that “Congress has given\ncrime victims the statutory rights ‘to be reasonably heard at any public proceeding in\nthe district court involving . . . sentencing,’ and ‘to be treated with fairness and with\nrespect for the victim’s dignity and privacy.’” Id., quoting 18 U.S.C. § 3771(a)(4) and\n(8). A judge’s impromptu statement to a victim does not demonstrate bias toward the\ndefendant; rather, it “further[s] the congressional policy of encouraging crime victim\nparticipation in the criminal justice process.” Id.\n\n Johnson provides no basis to conclude that Judge Menendez’s brief expression\nof sympathy and empathy toward a child who had been required to recount the\n\n -8-\n\ftraumatic and extreme abuse he suffered, first during Bobbi Jo’s trial and again in his\nvictim impact letter at sentencing, improperly influenced the court’s sentencing.\nAfter noting and weighing the relevant § 3553(a) mitigating and aggravating factors\nin detail, the court sentenced Johnson below the government’s requested sentence,\nnoting it would never have reduced the sentence to the non-binding agreement\npreviously offered by the government. That the court weighed relevant sentencing\nfactors differently than Johnson would prefer does not warrant reversal or\nintervention by this court. United States v. Maluoth, 121 F.4th 1158, 1165 (8th Cir.\n2024).\n\n For the foregoing reasons, the judgment of the district court is affirmed.\n ______________________________\n\n\n\n\n -9-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11235501/", "author_raw": "LOKEN, Circuit Judge."}]}	LOKEN	ERICKSON	KOBES	1		{"LOKEN": ", Circuit", "ERICKSON": ", Circuit", "KOBES": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10768916/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,768,918	United States v. Robbie Fetters	2026-01-05	25-1323	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Before BENTON, GRASZ, and STRAS, Circuit Judges.", "parties": "", "opinions": [{"author": "BENTON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 25-1323\n ___________________________\n\n United States of America\n\n Plaintiff - Appellee\n\n v.\n\n Robbie Dean Fetters, also known as Robert Dean Fetters\n\n Defendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the Southern District of Iowa - Central\n ____________\n\n Submitted: November 21, 2025\n Filed: January 5, 2026\n ____________\n\nBefore BENTON, GRASZ, and STRAS, Circuit Judges.\n ____________\n\nBENTON, Circuit Judge.\n\n Robbie Dean Fetters appeals the district court’s 1 denial of his motion for\ncompassionate release under 18 U.S.C. § 3582(c)(1)(A). Having jurisdiction under\n28 U.S.C. § 1291, this court affirms.\n\n\n 1\n The Honorable Stephen H. Locher, United States District Judge for the\nSouthern District of Iowa.\n\f In 2011, a jury convicted Fetters of being a felon in possession of a firearm,\nusing or carrying a firearm in furtherance of a drug crime, conspiracy to distribute\nmethamphetamine, distribution of methamphetamine, and possession with intent to\ndistribute methamphetamine, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) and\n924(c)(1)(A) and 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 841(b)(1)(C) and 846. The\ndistrict court2 varied downward, sentencing him to 320 months in prison and five\nyears of supervised release.\n\n In 2020, the district court denied Fetters’ motion for compassionate release\nbecause he did not establish that the 18 U.S.C. § 3553(a) factors warranted it.\n\n In 2024, Fetters again moved for a compassionate release. He emphasized his\nmedical conditions—cirrhosis, esophageal varices, thrombocytopenia, diabetes, his\nfeeding tube with accompanying infections and stomach acid leakage, inadequate\nnutrition that caused abrupt weight loss, a paralyzed tongue, chronic diarrhea, high\ncholesterol, high blood pressure, hypertension, hepatitis-C, and Vitamin D\ndeficiency. He is in the Bureau of Prisons’ “chronic care clinic,” classified as a\nLevel Three inmate, between good-health (One) and most-serious-medical-needs\n(Four). The district court denied the motion.\n\n This court reviews the denial of compassionate release for abuse of discretion.\nUnited States v. Sims, 87 F.4th 917, 919 (8th Cir. 2023). “The district court has\nbroad discretion in determining whether proffered circumstances warrant a reduction\nin sentence.” United States v. Loggins, 966 F.3d 891, 893 (8th Cir. 2020); see 18\nU.S.C. § 3582(c)(1)(A) (“the court . . . may reduce the term of imprisonment”)\n(emphasis added). “A district court abuses its discretion when it makes an error of\nlaw or a clearly erroneous assessment of the evidence.” United States v. Robinson,\n9 F.4th 954, 956 (8th Cir. 2021).\n\n\n\n 2\n The Honorable John A. Jarvey, United States District Judge for the Southern\nDistrict of Iowa, now retired.\n -2-\n\f The general rule against modifying an imposed term of imprisonment is\n“subject to a few narrow exceptions.” Freeman v. United States, 564 U.S. 522, 526\n(2011). By the First Step Act of 2018, prisoners may seek a reduction in sentencing\nafter exhausting administrative remedies within the BOP. See 18 U.S.C.\n§ 3582(c)(1)(A); Loggins, 966 F.3d at 892. The defendant must establish three\nconditions: “(1) ‘extraordinary and compelling reasons’ justify the reduction; (2) the\nreduction is consistent with applicable policy statements issued by the Sentencing\nCommission; and (3) the sentencing factors under § 3553(a) support relief.” United\nStates v. Johnson, 2025 WL 1949738, at 1 (8th Cir. July 16, 2025). See also\nUnited States v. Avalos Banderas, 39 F.4th 1059, 1062 (8th Cir. 2022) (stating\ndefendant “bears the burden to establish that compassionate release is warranted”).\nHaving a “terminal illness” is an “extraordinary and compelling reason.” U.S.S.G.\n§ 1B1.13(b)(1)(A).\n\n I.\n\n Fetters argues the district court erred in using the BOP definition of “terminal\nillness,” instead of the sentencing guideline’s definition. See BOP Program\nStatement 5050.50 (2019) (defining “terminal, incurable disease” as having a life\nexpectancy of 18 months or less); U.S.S.G. § 1B1.13(b)(1)(A) (defining “terminal\nillness” as a “serious and advanced illness with an end-of-life trajectory,” but noting\nthat it does not require a “specific prognosis of life expectancy”).\n\n The Sentencing Commission may promulgate general policy statements about\nsentencing modifications under 18 U.S.C. § 3582(c). See 28 U.S.C. § 994(a)(2)(C).\nWhile this court has not decided the validity and applicability of the 2023\namendment expanding U.S.S.G. § 1B1.13, it is proper for a district court to “deny\ndefendant’s requested relief anyway” when “the factors from 18 U.S.C. § 3553(a)\n[do] not warrant any reduced sentence.” United States v. Williams, 2025 WL\n1672255, at 1 (8th Cir. June 13, 2025) (unpublished). See United States v. Rodd,\n966 F.3d 740, 747 (8th Cir. 2020) (affirming a denial of compassionate release even\nif the unamended guideline were not applicable because the § 3553(a) factors did\n -3-\n\fnot favor it); United States v. Vega-Figueroa, 139 F.4th 77, 80 (1st Cir. 2025)\n(finding the amended guideline binding but concluding no abuse of discretion\nbecause defendant was still a danger to the community under § 3553(a) factors).\n\n This court need not determine whether the amended guideline is applicable,\nbecause the district court did not ignore it. It found Fetters was not “per se ineligible\neven though his life expectancy exceeds eighteen months.” The court thus\nrecognized that a “specific prognosis of life expectancy (i.e., a probability of death\nwithin a specific time period) is not required.” U.S.S.G. § 1B1.13(b)(1)(A); see\nUnited States v. Marcussen, 15 F.4th 855, 859 (8th Cir. 2021) (“the district court\nproperly looked to [the unamended guideline] as relevant but not binding in\ndetermining that [defendant’s] health conditions . . . were not ‘extraordinary and\ncompelling reasons’ warranting a reduction”); Loggins, 966 F.3d at 892 (finding\ndistrict court’s consideration of factors outside the unamended guideline’s\nenumeration proper). The district court had broad discretion under either the BOP or\nguideline’s definition of “terminal illness.” See Rodd, 966 F.3d at 747 (affirming\nbecause “[t]he district court knew its discretion” rather than focusing on “whether\nthe district court erred in adhering to the [unamended guidelines]”). See also\nConcepcion v. United States, 597 U.S. 481, 501 (2022) (district court not “required\nto articulate anything more than a brief statement of reasons”).\n\n It went on to properly exercise its discretion in concluding that Fetters’s\nmedical conditions fell short of the extraordinary and compelling requirement. The\ndistrict court acknowledged that “Fetters unquestionably has serious medical needs”\nthat “have worsened in recent years,” discussing in detail his medical conditions and\ntreatments. See United States v. Vangh, 990 F.3d 1138, 1141 (8th Cir. 2021)\n(affirming because “the district court discussed [defendant’s] reasons in great detail,\nincluding each of his medical conditions and the treatments he was receiving for\nthem”); Loggins, 966 F.3d at 892 (affirming a denial of compassionate release\nbecause the court considered the defendant’s circumstances before finding them\ninsufficient). But it found his conditions “are not as serious as he claims, nor are\nthey so serious that the BOP cannot adequately provide care.” See Marcussen, 15\n -4-\n\fF.4th at 858 (“Section 3582(c)(1)(A) requires a judicial determination of\n‘extraordinary and compelling reasons’ based on an inmate’s unique\ncircumstances.”); Concepcion, 597 U.S. at 501 (holding a district court “may, in its\ndiscretion, dismiss arguments that it does not find compelling without a detailed\nexplanation”).\n\n II.\n\n Fetters believes the district court abused its discretion in determining that the\n§ 3553(a) factors did not support compassionate release. This court reviews a district\ncourt’s weighing of the § 3553(a) factors for an abuse of discretion. See Rodd, 966\nF.3d at 747. “A sentencing court abuses its discretion under § 3553(a) if it fails to\nconsider a relevant factor that should have received significant weight, gives\nsignificant weight to an improper or irrelevant factor, or considers only the\nappropriate factors but commits a clear error of judgment in weighing those factors.”\nUnited States v. Kowal, 527 F.3d 741, 749 (8th Cir. 2008) (internal quotation marks\nomitted).\n\n Compassionate release can be denied after balancing the § 3553(a) factors\nbecause it is “discretionary, not mandatory.” United States v. Chambliss, 948 F.3d\n691, 693 (5th Cir. 2020); see Marcussen, 15 F.4th at 857 (affirming denial of\ncompassionate release even when the district court found extraordinary and\ncompelling reasons because “multiple § 3553(a) aggravating factors strongly\nweigh[ed] against release”). District courts do not have to make specific findings or\n“mechanically recite the sentencing factors listed in 18 U.S.C. § 3553(a).” Rodd,\n966 F.3d at 748. If the defendant advances “mitigating factors,” it is presumed the\ndistrict court considered them, which is all that is required to satisfy this court. Id.\n\n Here, the district court found (citations omitted):\n\n To the extent the Court is obligated to consider the § 3553(a)\n factors, they reinforce the conclusion that a sentencing reduction is not\n\n -5-\n\f appropriate. Fetters committed numerous violent and non-violent\n felony offenses in the years after he was shot in 2001, including\n convictions for: assault causing injury to peace officers (2002);\n carrying weapons and third-degree theft (2002); third-degree arson\n (2005); assault (2005); carrying concealed weapons (2005); assault\n (2005); carrying weapons and going armed with a knife blade (2006);\n first-degree theft (2006); and assault (2008). These offenses involved,\n among other things, Fetters punching a police officer twice in the head\n and spitting in the officer’s face, lighting a victims clothes on fire and\n threatening to set fire to a vehicle, striking his brother in the head with\n a baseball bat, running from the police, and hitting a victim with a stick\n and his fist and throwing a brick at the victim. Clearly Fetters is capable\n of endangering the community despite his medical issues. Indeed, he\n has also been disciplined twice for assault while serving his federal\n sentence, once in 2012 and again in 2017.\n\n The instant offense conduct reinforces why Fetters received such\n a long sentence. . . . When this offense conduct is combined with his\n criminal history, Fetters deserves—and continues to deserve—a\n lengthy sentence, notwithstanding his medical issues. Accordingly, the\n Court cannot conclude that his 320-month long sentence is excessive.\n\nThe district court properly conducted the required “individualized inquiry.” Cf.\nSims, 87 F.4th at 919 (remanding because nothing indicated the district court\nconsidered defendant’s proffered reasoning or that it reviewed the defendant’s\nmedical records). Because the district court thoroughly considered the § 3553(a)\nfactors, it did not abuse its discretion in finding they “reinforce the conclusion that\na sentencing reduction is not appropriate.” See Rodd, 966 F.3d at 748.\n\n ********\n\n The judgment is affirmed.\n ______________________________\n\n\n\n\n -6-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11235503/", "author_raw": "BENTON, Circuit Judge."}]}	BENTON	GRASZ	STRAS	1		{"BENTON": ", Circuit", "GRASZ": ", Circuit", "STRAS": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10768918/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,768,920	Michelle Siebrecht v. Mercy Health Services - Iowa Corp.	2026-01-05	24-3159	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Before SMITH, ARNOLD, and SHEPHERD, Circuit Judges.", "parties": "", "opinions": [{"author": "SMITH, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 24-3159\n ___________________________\n\n Michelle Siebrecht\n\n Plaintiff - Appellant\n\n v.\n\n Mercy Health Services - Iowa Corp., doing business as MercyOne Siouxland\n Medical Center\n\n Defendant - Appellee\n ____________\n\n Appeal from United States District Court\n for the Northern District of Iowa - Western\n ____________\n\n Submitted: September 16, 2025\n Filed: January 5, 2026\n ____________\n\nBefore SMITH, ARNOLD, and SHEPHERD, Circuit Judges.\n ____________\n\n\nSMITH, Circuit Judge.\n\n Michelle Siebrecht sued her former employer, Mercy Health Services Iowa\nCorp. d/b/a MercyOne Siouxland Medical Center (Mercy), alleging violations of the\nAmericans with Disabilities Act (ADA), the Iowa Civil Rights Act (ICRA), and the\nFamily and Medical Leave Act (FMLA). She claims that Mercy discriminated\nagainst her because of her disability and for taking FMLA leave. Mercy denies these\n\fallegations. The district court 1 granted summary judgment for Mercy on all claims.\nSiebrecht appeals. For the reasons discussed below, we affirm.\n\n I. Background\n A. Mercy’s Hawarden Facility\n Siebrecht worked as a physician assistant for Mercy in the emergency room\n(ER) at Mercy’s facility in Hawarden, Iowa. Because the Hawarden facility was a\ncritical access facility, the ER was required to be staffed with at least one provider2\nat all times—24 hours per day, 365 days per year. ER providers are not plentiful in\nrural Iowa.\n\n During the relevant time, Mercy usually staffed the Hawarden ER with four\nproviders, including Siebrecht. Mercy referred to these providers collectively as\nadvanced practice providers (APPs). APPs worked under employment contracts\nwith initial terms. The contracts provided that at the end of the initial term, the\nhospital and the providers could extend the contract by written agreement.\nOtherwise, the contracts would continue month-to-month for up to 90 days. This 90-\nday period was known as the Temporary Renewal Period (TRP). If no extension\nagreement was reached during that period, the contract terminated after either 30\ndays’ written notice or at the end of the TRP.\n\n APPs worked 72 hours per two-week pay period. They did not have assigned\nshifts. Instead, a shift coordinator would circulate a calendar to APPs a month in\nadvance, and they would respond by indicating their preferred shifts for that month.\nPursuant to their contracts, APPs were required to work three 24-hour shifts per pay\nperiod. The contracts also stated that APPs were required to work weekends. When\n\n\n\n 1\n The Honorable Kelly K.E. Mahoney, United States Chief Magistrate Judge\nfor the Northern District of Iowa, to whom the case was referred for final disposition\nby consent of the parties pursuant to 28 U.S.C. § 636(c).\n 2\n “Provider” refers to doctors, nurse practitioners, and physician assistants.\n -2-\n\fa shift could not be covered by an APP, workers known as PRNs and locums\n(temporary replacements) covered them.\n\n B. Siebrecht’s First FMLA Leave\n Siebrecht was diagnosed with multiple sclerosis (MS). 3 Due to effects of her\ncondition, she took FMLA leave from June 3, 2021, to August 1, 2021. When her\ndoctor filled out the paperwork for her leave, he indicated that ongoing stress at work\nand at home exacerbated Siebrecht’s MS. He also stated that Siebrecht’s episodic\nMS flareups could periodically prevent her from performing her job functions.\n\n C. Mercy’s Attempt to Renew Siebrecht’s Contract\n Siebrecht’s employment contract was set to expire on February 28, 2022. On\nJanuary 25, 2022, the CEO at the Hawarden facility presented Siebrecht with a\nproposed contract extension. Siebrecht declined the offer and never made a\ncounteroffer. Neither party ever raised the issue of negotiating a new contract with\nthe other.\n\n D. Siebrecht’s Second FMLA Leave\n Siebrecht took her second FMLA leave from January 31, 2022, to March 14,\n2022. Her FMLA paperwork stated that the leave was due to chronic MS with acute\nexacerbation. Siebrecht’s doctor again attributed exacerbation to her strenuous work\nschedule and continued stress at home.\n\n E. Siebrecht Seeks Accommodations\n On February 25, 2022, while still on leave, Siebrecht attended a doctor’s\nappointment. After evaluating Siebrecht, her doctor cleared her to return to work by\nthe middle of March with the following limitations: no more than one 24-hour shift\nper week and no weekend shifts because, according to him, weekend shifts in the\n\n 3\n In denying Siebrecht’s partial motion for summary judgment, the district\ncourt concluded that “[a] fact question exists as to whether Siebrecht in fact has MS,\nand if so, whether it qualified as a disability under the law (whether it substantially\nlimited a major life activity).” R. Doc. 112, at 15.\n -3-\n\fER tend to be more hectic. In his treatment notes, the doctor opined that 24-hour\nshifts seemed to be an extremely long time for someone with her condition. He\nscheduled a three-month follow-up appointment with Siebrecht. He also suggested\nthat if she continued to do well, he would permit her to work additional days.\nHowever, he also noted that her condition would have flareups for the rest of her\nlife.\n\n Siebrecht’s doctor informed Mercy that her restrictions were expected to last\nthrough December 31, 2022. On March 16, 2022, the HR specialist stated that Mercy\ncould accommodate Siebrecht’s restrictions but could not confirm that the\naccommodation could be made through December 31, 2022.\n\n F. Termination of Siebrecht’s Employment\n The CEO of the Hawarden facility emailed an executive at Mercy, stating:\n“[Siebrecht] is now saying that her doctor notes states that she will be doing 1 (24)\n[hour] shift through December. This is not working out the best and I think we need\nto terminate her and let her disability run out. Or she can work at MercyOne her 24\n[hour] shift.” App. Vol. II, at 793. In his deposition, the CEO explained that he was\nexpressing concern that Siebrecht was unable to meet her required shifts and that it\nwas unfair to others in the department. Moreover, at least one of Siebrecht’s\ncolleagues complained to the CEO that Siebrecht’s medical leave was unfair to other\nAPPs.\n\n Mercy decided to terminate Siebrecht’s employment on April 26, 2022.\nMercy notified Siebrecht of its decision via written letter dated April 28, 2022. The\nletter stated that because the parties had not renewed Siebrecht’s employment\ncontract, her employment with Mercy was terminated effective May 30, 2022, the\nday after her TRP would end. On May 20, 2022, Mercy communicated to Siebrecht\nthat she was relieved of further shifts but would continue to be paid through May 30.\nSiebrecht never had any formal disciplinary actions during her employment with\nMercy.\n\n\n -4-\n\f During a doctor’s appointment on May 26, 2022, Siebrecht’s doctor noted that\nher MS appeared stable. He signed a “Release to Return to Work” statement that\nreleased her to return to work with no restrictions effective June 13, 2022.\n\n G. Litigation\n Siebrecht filed a lawsuit against Mercy in Iowa state court alleging violations\nof the ADA, the ICRA, and the FMLA. Mercy removed the case to federal court\nbased on federal question jurisdiction. The district court granted summary judgment\nin favor of Mercy on all of Siebrecht’s claims. 4 Siebrecht appeals.\n\n II. Discussion\n Siebrecht argues that the district court erred by granting summary judgment\non her disability discrimination claims and her FMLA claim. “We review the district\ncourt’s grant of summary judgment de novo.” Lipp v. Cargill Meat Sols. Corp., 911\nF.3d 537, 543 (8th Cir. 2018). Summary judgment is appropriate when “the movant\nshows that there is no genuine dispute as to any material fact and the movant is\nentitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). If there is a genuine\ndispute of material fact, we view the disputed facts in the light most favorable to the\nnonmovant. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en\nbanc). “Where the record taken as a whole could not lead a rational trier of fact to\nfind for the nonmoving party, there is no genuine issue for trial.” Id. (quoting Ricci\nv. DeStefano, 557 U.S. 557, 586 (2009)).\n\n A. Disability Discrimination\n Siebrecht alleges that Mercy discriminated against her in violation of the ADA\nand ICRA. The district court granted summary judgment for Mercy on both claims\nafter concluding that Siebrecht was not a “qualified individual.” Siebrecht argues\nthat the district court erred. We disagree.\n\n 4\n The district court’s order also denied as moot Siebrecht’s motions to\nsupplement the record (R. Docs. 79, 94), denied Siebrecht’s motion for partial\nsummary judgment (R. Doc. 43), and denied as moot Mercy’s motion for sanctions\n(R. Doc. 37).\n -5-\n\f “ADA and ICRA disability claims are analyzed under the same standards.”\nTjernagel v. Gates Corp., 533 F.3d 666, 671 (8th Cir. 2008). Both statutes prohibit\nan employer from discriminating against a “qualified individual” based on the\nindividual’s disability. 42 U.S.C. § 12112(a); Rumsey v. Woodgrain Millwork, Inc.,\n962 N.W.2d 9, 22 (Iowa 2021) (explaining that only “qualified individuals” can\nestablish a claim under the ICRA). To be a qualified individual, “an employee must\n(1) possess the requisite skill, education, experience, and training for her position,\nand (2) be able to perform the essential job functions, with or without reasonable\naccommodation.” Hill v. Walker, 737 F.3d 1209, 1216 (8th Cir. 2013) (citation\nmodified); see also 42 U.S.C. § 12111(8). An employee bears the burden of proving\nthat she is a “qualified individual.” Cleveland v. Pol’y Mgmt. Sys. Corp., 526 U.S.\n795, 806 (1999).\n\n It is undisputed that Siebrecht possesses the requisite skill, education,\nexperience, and training for her position. At issue is whether she was able to perform\nthe essential functions of her job with or without reasonable accommodation. We\nconclude that, on this record, the district court correctly concluded that she has not\nshown that she could perform the essential functions of her job.\n\n 1. Essential Job Functions\n “An employer has the burden of showing a particular job function is an\nessential function of the job.” Rehrs v. Iams Co., 486 F.3d 353, 356 (8th Cir. 2007).\nEssential functions are “the fundamental job duties of the employment position the\nindividual with a disability holds or desires.” EEOC v. Wal-Mart Stores, Inc., 477\nF.3d 561, 568 (8th Cir. 2007) (quoting Moritz v. Frontier Airlines, Inc., 147 F.3d\n784, 787 (8th Cir. 1998)). When determining what constitutes an essential job\nfunction, we consider evidence such as:\n\n (1) the employer’s judgment as to which functions are essential; (2)\n written job descriptions prepared before advertising or interviewing\n applicants for the job; (3) the amount of time spent on the job\n performing the function; (4) the consequences of not requiring the\n\n -6-\n\f incumbent to perform the function; and (5) the current work experience\n of incumbents in similar jobs.\n\nMcNeil v. Union Pac. R.R. Co., 936 F.3d 786, 789–90 (8th Cir. 2019).\n\n The district court concluded that Mercy met its burden of showing that the\nability to work three 24-hour shifts per pay period and weekend shifts was an\nessential function of Siebrecht’s job. Siebrecht contends that the district court erred.\nShe contends that the essential function of her job was to treat patients, not to work\nspecific shifts. She argues that if the ability to work 24-hour shifts and weekend\nshifts was an essential job function, Mercy would have referenced her inability to\nwork those shifts as a reason in her termination letter.\n\n Applying the factors discussed above, we conclude that Mercy has met its\nburden of establishing that the ability to work three 24-hour shifts per pay period\nand weekend shifts constituted an essential function of Siebrecht’s job. Mercy\nconsiders working three 24-hour shifts per pay period and weekend shifts essential\nfunctions of an APP. Mercy included both requirements in Siebrecht’s, and every\nother APP’s, employment contract. The contracts stated that “Provider’s schedule\nshall include event and weekend coverage” and “Provider will be expected to work\nthree (3) twenty four (24) hour shifts per pay period.” R. Doc. 70-3, at 74. Moreover,\nthe APPs schedules were comprised mostly of 24-hour shifts. Finally, if Siebrecht\nwas not required to work her three 24-hour shifts per pay period or weekend shifts,\nother APPs, PRNs, or locums would have to cover for her by working additional\nshifts.\n\n Siebrecht’s argument that the essential function of her job was patient care\nmisses the point. Patient care is certainly the ultimate purpose of the work that\nSiebrecht performed, as would be the case for most positions in a hospital. The focus\nof the inquiry is not on the ultimate purpose of services that Siebrecht performed but\non the specific tasks required to complete the purpose of the particular position that\nshe occupied. As we have explained, “the term essential function encompasses more\n\n -7-\n\fthan core job requirements; indeed, it also may include scheduling flexibility.”\nRehrs, 486 F.3d at 358. Further, we have explained that requiring employees to work\ncertain undesirable shifts—here, weekends—can be considered essential job\nfunctions because it enhances the non-work life of employees by spreading the shifts\namong them. See Kallail v. Alliant Energy Corp. Servs., Inc., 691 F.3d 925, 931 (8th\nCir. 2012) (“Shift rotation also enhances the non-work life of Resource Coordinators\nby spreading the less desirable shifts—nights and weekends—among all Resource\nCoordinators.”).\n\n Accordingly, there is no genuine dispute of material fact as to whether\nworking three 24-hour shifts per pay period and weekend shifts were essential\nfunctions of Siebrecht’s position at Mercy. We affirm the conclusion that they were.\n\n 2. Siebrecht’s Ability to Perform Essential Job Functions\n Next, we address whether Siebrecht could perform these essential job\nfunctions related to her shifts with or without reasonable accommodation. It is\nundisputed that at the time Mercy terminated Siebrecht’s employment, she could not\nwork three 24-hour shifts and weekend shifts without reasonable accommodation.\nThus, we must determine whether she could have worked the shifts with reasonable\naccommodation.\n\n “Under the ADA . . . an employer must reasonably accommodate an\nemployee’s disability and engage in an interactive process to identify potential\naccommodations that could overcome her limitations.” Burchett v. Target Corp., 340\nF.3d 510, 517 (8th Cir. 2003). The employee has the “burden to make a facial\nshowing that a reasonable accommodation would enable her to perform her essential\njob functions.” Scruggs v. Pulaski Cnty., 817 F.3d 1087, 1093 (8th Cir. 2016)\n(citation modified). An employee only needs to show that accommodation is\nreasonable on its face. US Airways, Inc. v. Barnett, 535 U.S. 391, 402 (2002). If the\nemployee meets her burden of showing that a reasonable accommodation is possible,\n“the burden of production then shifts to the employer to show that it had a legitimate\n\n\n -8-\n\fnondiscriminatory reason not to provide the accommodation.” Burchett, 340 F.3d at\n517.\n\n a. Reduced Work Schedule\n Siebrecht argues that a reduced work schedule, with fewer 24-hour shifts and\nno weekend shifts, constituted a reasonable accommodation that would have\nenabled her to perform the essential functions of her job. However, as discussed\nabove, the ability to work three 24-hour shifts per pay period and weekend shifts\nwere essential job functions. Thus, the inability to work those shifts prevents\nperformance of those essential functions. As the district court explained, “both the\nability to work all of her shifts (and not just two-thirds of them) and the ability to\ncover weekend shifts both constitute essential functions of Siebrecht’s job.” R. Doc.\n112, at 21 (emphasis added). There is no genuine dispute of material fact about\nwhether a reduced work schedule would have enabled Siebrecht to perform the\nessential functions of her job.\n\n b. Reassignment\n Siebrecht also argues that reassignment to a new position would have been a\nreasonable accommodation that would have enabled her to perform the essential\nfunctions of her job. “While reassignment to a vacant position can be a reasonable\naccommodation under the ADA, it is not necessarily required.” Burchett, 940 F.3d\nat 517. “[R]eassignment to another position is a required accommodation only if\nthere is a vacant position for which the employee is otherwise qualified.” Ehlers v.\nUniv. of Minn., 34 F.4th 655, 660 (8th Cir. 2022) (quoting Minnihan v. Mediacom\nCommc’ns Corp., 779 F.3d 803, 814 (8th Cir. 2005)). To establish reassignment as\na possible accommodation, an employee “must make a facial showing that a position\nis available for which [she] qualifies.” Id. An employee can establish that she\nqualifies for an available position by “mak[ing] a facial showing that she satisfied\nthe legitimate prerequisites for an alternative position and would ‘be able to perform\nthe essential functions of that position with or without reasonable\n\n\n\n -9-\n\faccommodations.’” Id. (quoting Cravens v. Blue Cross & Blue Shield of Kan. City,\n214 F.3d 1011, 1019 (8th Cir. 2000)).\n\n Here, Siebrecht has not met her burden of establishing that reassignment to a\nnew position was a reasonable accommodation. She has not identified an alternative\nposition that was vacant during the relevant period. Nor can Siebrecht satisfy her\nburden by relying on the Hawarden facility’s CEO’s email to another executive that\n“she can work at MercyOne her 24 [hour] shift.” App. Vol. II, at 793. This email\ndoes not identify an available position that Siebrecht was qualified for. Further, the\nCEO was the CEO of the Hawarden facility, not MercyOne, so his statement does\nnot mean that there was an available position at MercyOne. The absence of an\navailable position forecloses reassignment to an alternative position. There is no\ngenuine dispute of material fact about whether reassignment would have been a\nreasonable accommodation.\n\n c. Interactive Process\n Lastly, Siebrecht argues that Mercy failed to engage in the interactive process.\n“[A] plaintiff can survive summary judgment on a reasonable-accommodation claim\nby showing that the employer failed to engage in an interactive process.” Ehlers, 34\nF.4th at 660.\n\n To establish that an employer failed to participate in an interactive\n process, a disabled employee must show: (1) the employer knew about\n the employee’s disability; (2) the employee requested accommodation\n or assistance for his or her disability; (3) the employer did not make a\n good[-]faith effort to assist the employee in seeking accommodation;\n and (4) the employee could have been reasonably accommodated but\n for the employer’s lack of good faith.\n\nId. (quoting Cravens, 214 F.3d at 1021). Ultimately, “[t]he employee still carries the\nburden of showing that a particular accommodation rejected by the employer would\n\n\n\n\n -10-\n\fhave made the employee qualified to perform the essential functions of the job.”\nFjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 954 (8th Cir. 1999).\n\n Here, Siebrecht satisfies the first two elements. Mercy knew about Siebrecht’s\nasserted disability and Siebrecht’s requested accommodation. However, Siebrecht\nfails the fourth element. Even assuming Mercy failed to make a good-faith effort to\nassist Siebrecht in seeking accommodation, Siebrecht has not met her burden of\nshowing that she could have been reasonably accommodated but for Mercy’s lack\nof good-faith effort. As discussed above, Siebrecht has failed to identify any\nreasonable accommodation that would have enabled her to perform the essential\nfunctions of her job. Thus, Mercy’s actions with respect to the interactive process\nyield no genuine dispute of material fact.\n\n B. FMLA Claim\n Siebrecht also alleges that Mercy retaliated against her for taking FMLA\nleave, in violation of the FMLA. The district court granted Mercy’s motion for\nsummary judgment on this claim after concluding that there was no causal\nconnection between Siebrecht’s FMLA leave and Mercy’s termination of her\nemployment. Siebrecht argues that the district court erred. We disagree.\n\n The FMLA prohibits employers from discriminating against employees for\nexercising their rights under the Act. Darby v. Bratch, 287 F.3d 673, 679 (8th Cir.\n2002). This “includes consideration of an employee’s use of FMLA leave as a\nnegative factor in an employment action.” Id. But “[t]aking FMLA leave . . . does\nnot give an employee any greater protection against termination for reasons\nunrelated to the FMLA than was available before.” Malloy v. U.S. Postal Serv., 756\nF.3d 1088, 1090 (8th Cir. 2014).\n\n When an employee’s FMLA retaliation claim is not based on direct evidence,\nwe analyze the claim under the McDonnell Douglas burden-shifting framework. 5\n\n\n 5\n McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).\n -11-\n\fPhillips v. Mathews, 547 F.3d 905, 912 (8th Cir. 2008). Under this framework, the\nemployee has the initial burden to establish a prima facie FMLA retaliation claim.\nId. To do so, she must present sufficient facts for a jury to find that (1) “she engaged\nin activity protected under the Act,” (2) “she suffered an adverse employment action\nby the employer,” and (3) “a causal connection existed between the employee’s\naction and the adverse employment action.” Darby, 287 F.3d at 679. If the employee\nis successful, the burden shifts to the employer to present evidence of a legitimate,\nnondiscriminatory reason for the adverse action. Phillips, 547 F.3d at 912. Finally,\nif the employer satisfies its burden, the employee must present evidence that creates\nan issue of fact as to whether the employer’s reason was pretext for discrimination.\nId.\n\n Because Siebrecht’s FMLA retaliation claim is not based on direct evidence,\nwe analyze the claim under the McDonnell Douglas framework.\n\n 1. Prima Facie Retaliation Claim\n First, did Siebrecht meet her burden of establishing a prima facie FMLA\nretaliation claim? The first two elements are not at issue. It is undisputed that\nSiebrecht engaged in protected activity when she took FMLA leave and that she\nsuffered an adverse employment action when Mercy terminated her employment. At\nissue is whether a causal connection existed between the protected activity and\nadverse employment action, i.e., whether Mercy terminated Siebrecht’s employment\nbecause she took FMLA leave.\n\n The only evidence Siebrecht relies on to support the causation element of her\nclaim is the following deposition testimony from the CEO of the Hawarden facility:\n\n Q: Why did you tell Ms. Pingel that you believed [Siebrecht] should be\n terminated?\n\n A: Because of her unreliability.\n\n . . .\n -12-\n\f Q: Well, when you said that Ms. Pingel asked you if Ms. Siebrecht\n should be terminated and you said yes, and the reason was because of\n her unreliability and the fact that she could only work 24 hours a shift,\n what were you referencing when you were talking about only working\n 24 hours a shift?\n\n A: Well, that was the restriction. I mean, I—that was the restriction of\n her 24-hour shifts, and that was an accommodation we tried to make\n work out, but it just didn’t work out.\n\n Q: Okay. So you’re talking about a restriction that [Siebrecht] had when\n she came back to work following her FMLA leave in 2022?\n\n A: Again, I’m looking at blocks of—blocks of situations. [Siebrecht]\n went out on some time related to FMLA. She then came back, which I\n believe she had no restrictions of what I can recollect. And then she\n went out for another period of time with restrictions when she came\n back.\n\nR. Doc. 70-3, at 194, 106:12–15, 108:20–109:13.\n\n Siebrecht contends that when the CEO testified that he believed Siebrecht’s\nemployment should be terminated because of her “unreliability,” he was referring to\nthe “blocks of situations” he referenced in response to a subsequent question.\nSiebrecht argues that the “blocks of situations” were the two times that she took\nFMLA leave. Thus, according to Siebrecht, the CEO believed that Siebrecht was\nunreliable because she took FMLA leave twice. Siebrecht asserts that this testimony,\nviewed in the light most favorable to her, is sufficient to create a genuine issue of\nmaterial fact as to the causation element of the prima facie retaliation claim.\n\n Siebrecht’s argument, however, unreasonably construes the CEO’s testimony.\nThe CEO’s reference to “blocks of situations” made no statement that her FMLA\nuse played a role in her termination. It was the medical restrictions following the\nFMLA leave that prevented her from fulfilling the job requirement of 24-hour shifts.\n\n\n\n -13-\n\fThe CEO’s testimony made clear that when he said Siebrecht was unreliable, he was\nonly referring to her restriction on 24-hour shifts:\n\n Q: Okay. So let’s finish up the conversation in which Ms. Pingel asked\n you should [Siebrecht] be terminated, you said yes, she’s unreliable.\n We have the 24-hour shift restriction, we can’t meet that, it’s unfair,\n causes a burden on others in the department. Am I accurately\n summarizing what you’re relaying to her?\n\n A: Yeah.\n\n Q: Did you relay any other reasons why you felt Ms. Siebrecht should\n be terminated in that same conversation with Ms. Pingel?\n\n A: Not that I recall.\n\nR. Doc. 70-3, at 196, 122:7–17. The CEO did not reference FMLA leave in\nconnection with Siebrecht’s unreliability. Considering the CEO’s testimony in the\ncontext of his entire deposition makes clear that his comments about Siebrecht’s\nunreliability were unrelated to his comments about “blocks of situations.”\n\n 2. Pretext\n Even if we were to find that Siebrecht established a prima facie FMLA\nretaliation claim, she did not carry her burden to show that Mercy’s reason for\nterminating her employment was pretext for discrimination. The district court\nconcluded that Siebrecht’s inability to perform the essential functions of her job with\nher restricted schedule constituted a legitimate, nondiscriminatory reason for Mercy\nto terminate her employment. Siebrecht argues that this reason was pretextual.\n\n Pretext may be demonstrated in two ways. Stallings v. Hussmann Corp., 447\nF.3d 1041, 1052 (8th Cir. 2006). The first way is to show “that the employer’s\nproffered explanation is unworthy of credence.” Id. (quoting Wallace v. DTG\nOperations, Inc., 442 F.3d 1112, 1120 (8th Cir. 2006)). “Under this method, the\nemployee must rebut the employer’s ‘underlying factual claims’ by establishing that\n\n -14-\n\fthe employer’s explanation has no basis in fact.” Id. (quoting Wallace, 442 F.3d at\n1120). The second way is to prove pretext directly by persuading the court that an\nemployer’s action was more likely motivated by a prohibited reason. Id. “Pretext\nmay be shown with evidence that the employer’s reason for the termination has\nchanged substantially over time.” Loeb v. Best Buy Co., 537 F.3d 867, 873 (8th Cir.\n2008).\n\n Siebrecht argues that Mercy used her inability to perform the essential\nfunctions of her job as a pretext for terminating her employment. She asserts that\nMercy previously gave a different reason for terminating her employment, namely,\nthe expiration of her employment contract. However, providing more than one\nreason for terminating an employee’s employment contract is insufficient to\nestablish pretext. See id. at 874 (noting that some of the reasons the employer gave\nfor terminating plaintiff’s employment were, in fact, consistent). Having multiple\nreasons for termination may be indicative of pretext particularly if the reasons are\ncontradictory. Inability to perform work functions and contract lapsing are not\nnecessarily conflicting reasons.\n\n Mercy could have terminated Siebrecht’s employment for her inability to\nperform the essential functions of her job and because her employment contract\nexpired. “Unlike the ADA, the FMLA does not mandate that employers reinstate\nemployees who are unable to perform the essential functions of their positions.”\nBattle v. United Parcel Serv., Inc., 438 F.3d 856, 864 (8th Cir. 2006). “[T]he FMLA\nomits any requirement that employers seek to reasonably accommodate employees\nwho cannot perform the essential functions of their respective positions.” Id. at 864–\n65. Thus, under the FMLA, Mercy could terminate her employment for her inability\nto perform the essential functions of her job.\n\n Further, Siebrecht’s employment contract expressly stated that if the parties\ndid not agree to extend the contract, it would terminate after either 30 days’ written\nnotice or at the end of the TRP. Here, the parties did not extend Siebrecht’s contract,\n\n\n -15-\n\fso Mercy gave her 30 days’ written notice that her contract would be terminated at\nthe end of the TRP.\n\n Siebrecht argues that Mercy’s decision to terminate her employment after her\nTRP expired created an inference of pretext because Mercy did not terminate another\nAPP’s employment after their TRP expired. However, “[t]he burden is on the\nplaintiff to prove [she] was similarly situated in all relevant respects to a more\nfavorably treated employee.” Ricks v. Riverwood Int’l Corp., 38 F.3d 1016, 1019\n(8th Cir. 1994). Further, “the employees used for comparison must have dealt with\nthe same supervisor, have been subject to the same standards, and engaged in the\nsame conduct without any mitigating or distinguishing circumstances.” Edwards v.\nHiland Roberts Dairy, Co., 860 F.3d 1121, 1126 (8th Cir. 2017) (citation modified).\n\n Here, Siebrecht has not met her burden of establishing that the other APP who\nsigned a new contract after their TRP expired was similarly situated to her in all\nrelevant respects. Notably, Siebrecht has not established that the other APP made no\ncounteroffer to Mercy’s proposed contract extension or allowed her TRP to expire.\nOn the contrary, it appears that the other APP verbally accepted Mercy’s proposed\ncontract extension before their TRP expired. These are distinguishing circumstances\nthat make the other APP an inapposite comparator.\n\n Siebrecht has not met her burden to present evidence that creates a genuine\nissue of material fact as to whether Mercy’s reason for terminating her employment\nwas pretext for discrimination.\n\n III. Conclusion\n Accordingly, we affirm the judgment of the district court.\n ______________________\n\n\n\n\n -16-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11235505/", "author_raw": "SMITH, Circuit Judge."}]}	SMITH	ARNOLD	SHEPHERD	1		{"SMITH": ", Circuit", "ARNOLD": ", Circuit", "SHEPHERD": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10768920/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,769,638	United States v. Darrick Ferguson	2026-01-06	24-2178	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Before SMITH, GRUENDER, and SHEPHERD, Circuit Judges.", "parties": "", "opinions": [{"author": "GRUENDER, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 24-2178\n ___________________________\n\n United States of America\n\n Plaintiff - Appellee\n\n v.\n\n Darrick Lynn Ferguson, also known as Derrick Lynn Ferguson\n\n Defendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the Eastern District of Arkansas - Northern\n ____________\n\n Submitted: September 19, 2025\n Filed: January 6, 2026\n ____________\n\nBefore SMITH, GRUENDER, and SHEPHERD, Circuit Judges.\n ____________\n\nGRUENDER, Circuit Judge.\n\n Darrick Ferguson was convicted for being a felon in possession of a firearm.\nAt sentencing, the district court determined that Ferguson qualified for a sentence\nenhancement under the Armed Career Criminal Act. On appeal, Ferguson argues\nthis determination was wrong. We agree. Therefore, we vacate his sentence and\nremand for resentencing.\n\f I. Background\n\n Ferguson pleaded guilty to being a felon in possession of a firearm, a violation\nof 18 U.S.C. § 922(g)(1). Ferguson had three prior felony convictions, including\none conviction under Ark. Code Ann. Section 5-64-401(a)(1)(A)(i) (2007) for\ndelivery of a controlled substance; namely, cocaine. At sentencing, the district court\ndetermined that Ferguson’s three prior felony convictions—including the section 5-\n64-401(a)(1)(A)(i) conviction—qualified him for a sentencing enhancement under\n18 U.S.C. § 924(e), the Armed Career Criminal Act (“ACCA”).\n\n The ACCA mandates an enhanced sentence of at least fifteen years in prison\nfor a defendant convicted of being a felon in possession of a firearm who has three\nor more prior convictions for a “serious drug offense.” 18 U.S.C. § 924(e)(1). To\nqualify as a serious drug offense, an offense under state law must have involved a\ncontrolled substance as defined in § 102 of the Controlled Substances Act (“CSA”).\nId. § 924(e)(2)(A)(ii). The district court determined that Ferguson’s prior Arkansas\nconviction under section 5-64-401(a)(1)(A)(i) was a serious drug offense and\ntherefore that it qualified as a predicate offense for an ACCA enhancement.\nConsequently, Ferguson was subject to a mandatory minimum sentence of 180\nmonths’ imprisonment. Without the enhancement, Ferguson would have been\nsubject to a maximum sentence of 180 months’ imprisonment. See id. § 924(a)(8).\nThe district court sentenced Ferguson to 180 months’ imprisonment.\n\n Ferguson appeals, arguing that his conviction under section 5-64-\n401(a)(1)(A)(i) cannot qualify as a predicate offense for an ACCA enhancement\nbecause section 5-64-401(a)(1)(A)(i) criminalizes cocaine isomers not listed in\n§ 102 of the CSA.\n\n II. Analysis\n\n We review de novo whether a prior offense qualifies as a predicate offense\nunder the ACCA. United States v. Myers, 56 F.4th 595, 597 (8th Cir. 2022). To\n\n -2-\n\fdetermine whether a prior offense qualifies as a predicate offense, we apply the\n“categorical approach.” Shepard v. United States, 544 U.S. 13, 17 (2005). “This\n‘categorical approach’ focuses solely on whether the elements of the crime of\nconviction match the corresponding federal drug offense.” Myers, 56 F.4th at 597-\n98. “If the [prior] state offense sweeps more broadly, or punishes more conduct than\nthe federal definition, the conviction does not qualify as a predicate offense.” United\nStates v. Oliver, 987 F.3d 794, 806 (8th Cir. 2021). Thus, if Ferguson’s prior\nArkansas conviction for delivering cocaine was under a provision that criminalizes\nsubstances not listed in § 102 of the CSA, that prior conviction cannot qualify as a\npredicate offense for the ACCA enhancement.\n\n Ferguson argues that section 5-64-401(a)(1)(A)(i) criminalizes a wider range\nof cocaine isomers than are listed in § 102 of the CSA. Section 102 includes\n“[c]ocaine, its salts, optical and geometric isomers, and salts of isomers.” 21 U.S.C.\n§§ 802(6), 802(14) (2006, 2009); 21 C.F.R. §§ 1308.02, 1308.12(b)(4) (2007).\nFerguson argues that, unlike § 102, section 5-64-401(a)(1)(A)(i) criminalizes all\ncocaine isomers. See Myers, 56 F.4th at 598 (noting that there are positional cocaine\nisomers). Thus, he argues his Arkansas conviction under section 5-64-\n401(a)(1)(A)(i) cannot qualify as a predicate offense because “a drug statute that\ncriminalizes even one additional isomer does not qualify as a ‘serious drug\n[offense].’” United States v. Owen, 51 F.4th 292, 296 (8th Cir. 2022).\n\n In response, the Government makes three arguments. First, the Government\nargues that, like § 102 of the CSA, section 5-64-401(a)(1)(A)(i) only criminalizes\noptical and geometric isomers of cocaine. Second, the Government argues that\nsection 5-64-401(a)(1)(A)(i) is “divisible” with respect to cocaine and its isomers\nand, applying the modified categorical approach, Ferguson was convicted of\ndelivering cocaine, which is listed in § 102 of the CSA. Third, the Government\nargues that United States v. Meux, 918 F.3d 589 (8th Cir. 2019) (per curiam) requires\nus to hold that a conviction under section 5-64-401(a)(1)(A)(i) is a predicate offense\nunder the ACCA. We address each argument in turn.\n\n\n -3-\n\f First, section 5-64-401(a)(1)(A)(i) criminalizes all cocaine isomers, not just\noptical and geometric isomers. Section 5-64-401(a)(1)(A)(i) criminalizes certain\nconduct related to a “controlled substance classified in Schedule I or Schedule II that\nis a narcotic drug.” Both “controlled substance” and “narcotic drug” are terms\ndefined in the chapter’s definition section. § 5-64-101 (2007). That section defines\n“controlled substance” as “a drug, substance, or immediate precursor” listed “in\nSchedules I through VI.” § 5-64-101(4) (2007). The section defines “narcotic drug”\nas (1) “any drug that is defined as a narcotic drug by order of the director,”1 § 5-64-\n101(16)(A)(i) and also (2) an enumerated list of controlled substances, including\n“[c]ocaine, its salts, optical and geometric isomers, and salts of isomers.” § 5-64-\n101(16)(B)(iv) (2007). Thus, under section 5-64-101(16)(A)(i), the director can\ndefine additional narcotic drugs beyond those contained in the enumerated list.\nArkansas Schedule II, which the director promulgated, lists “cocaine” and its “salts,\nisomers, derivatives and salts of isomers and derivatives” as “[n]arcotic [d]rugs.”\nArk. Admin. Code 007.07.02, Sched. II(b)(4) (2005). A state law that criminalizes\nthe “isomers” of a controlled substance and does not contain any limiting language\ncriminalizes all isomers of that substance. See, e.g., Owen, 51 F.4th at 296 (holding\nMinnesota definition of cocaine overbroad). Therefore, because the Director defined\ncocaine’s isomers as a “narcotic drug” without such limiting language, section 5-64-\n401(a)(1)(A)(i) criminalizes all of cocaine’s isomers.2\n\n This conclusion aligns with United States v. Buckley, 146 F.4th 679 (8th Cir.\n2025). Buckley involved different Arkansas statutes: section 5-64-420(a)(1) (2011)\n\n 1\n That is, the Director of the Arkansas Department of Health. See § 5-64-\n101(3)(B)(i).\n 2\n The Government argues that we should apply a “reasonable probability test”\nto assess the scope of section 5-64-401(a)(1)(A)(i). But that test applies only where\na statute is ambiguous, and section 5-64-401(a)(1)(A)(i) unambiguously\ncriminalizes all cocaine isomers. See United States v. Heard, 62 F.4th 1109, 1114\n(8th Cir. 2023) (declining to apply reasonable probability test because the relevant\nstate statute penalizing “isomers” of a controlled substance without limiting\nlanguage was unambiguous).\n -4-\n\fand section 5-64-422(a) (2011). See id. at 680. Those statutes criminalized\n“cocaine” and not “a controlled substance” or “narcotic drug.” Id. at 681-82.\nBecause neither statute “mention[ed] the schedules or direct[ed] the reader’s\nattention to the schedules for a definition of cocaine,” we did not apply the broader\ndefinition of cocaine contained in the Arkansas drug schedules. Id. at 681. Here,\nhowever, section 5-64-401(a)(1)(A)(i) expressly uses the terms “controlled\nsubstance” and “narcotic drug,” terms which section 5-64-101(a)(1)(A)(i) defines by\nreferencing the schedules. Therefore, unlike the statutes in Buckley, section 5-64-\n401(a)(1)(A)(i) incorporates the drug schedules’ broader definition of cocaine.\n\n Second, the Government argues that section 5-64-401(a)(1)(A)(i) is divisible\nwith respect to cocaine and its isomers and that we should therefore apply a\n“modified” categorical approach that would allow us to look at what substance,\nspecifically, Ferguson possessed when he was convicted of violating section 5-64-\n401(a)(1)(A)(i). See Mathis v. United States, 579 U.S. 500, 505-06 (2016). A statute\nis divisible if it “defines more than one crime by listing alternative elements . . . .”\nSee United States v. Bennet, 972 F.3d 966, 974 (8th Cir. 2020). “‘Elements’ are the\n‘constituent parts’ of a crime’s legal definition—the things the ‘prosecution must\nprove to sustain a conviction.’” Mathis, 579 U.S. at 504 (quoting Black’s Law\nDictionary 634 (10th ed. 2014)). Even if there are alternative ways to violate a\nstatute, the statute is still indivisible if “those alternatives are not\nalternative elements, going toward the creation of separate crimes but are simply\nalternative ways or means of satisfying a single element.” United States v. Quigley,\n943 F.3d 390, 393 (8th Cir. 2019) (citation modified). Under Mathis, we can\nexamine the statutory text and structure, review state court decisions, and “peek” at\n“the record of a prior conviction itself” for “the sole and limited purpose of\ndetermining” if the statute is divisible. 579 U.S. at 517-19.\n\n We begin with the statutory text and structure and conclude that delivering a\nparticular isomer of cocaine is merely a means of delivering cocaine—a criminalized\ncontrolled substance. The Arkansas drug schedules include cocaine’s “isomers” in\na list of different physical and chemical forms of cocaine, not as a separate controlled\n\n -5-\n\fsubstance (or substances). Cocaine—but not any of its isomers—has a controlled\nsubstances number. Ark. Admin. Code 007.07.02, Sched. II(a), (b)(4) (2005). The\nmost natural interpretation is that alternative forms of cocaine are subsumed in\ncocaine, and the delivery of an isomer of cocaine would be prosecuted as a delivery\nof cocaine. We have previously described isomers of a controlled substance as\nmerely different structural forms of the same chemical composition, not different\nchemicals altogether. See Myers, 56 F.4th at 598 (citing Owen, 51 F.4th at 295).\nThe Government relies on the unpublished opinion Prichard v. State, No. CR 89-8,\n1990 WL 68646 at *1 (Ark. May 21, 1990) (per curiam), but even if it were\npersuasive authority, 3 it would be inapposite. Prichard held that section 5-64-401\nis divisible with respect to methamphetamine and cocaine, not with respect to\nspecific chemical forms of cocaine. Id. Therefore, a jury could have convicted\nFerguson of delivering cocaine even if some jurors concluded that he delivered one\ntype of cocaine isomer while others concluded he delivered another type. See\nMathis, 579 U.S. at 506. Thus, the text and structure of section 5-64-401(a)(1)(A)(i)\nsupport the conclusion that it is indivisible with respect to cocaine and its isomers.\n\n The Government also relies on the Arkansas model jury instructions. But\nthese are unavailing because they provide blank spaces for the prosecution to fill in\nthe controlled substance at issue and do not explain the level of generality at which\nthe prosecution must define that substance. See United States v. Naylor, 887 F.3d\n397, 406 (8th Cir. 2018) (en banc) (refusing to rely on model jury instructions\nbecause they were logically consistent with the alternatives at issue being either\nmeans or elements). Finally, the Government also relies on a “peek” at Ferguson’s\nrecord of conviction. The record documents for Ferguson’s conviction state that he\nwas convicted for delivery of cocaine, but do not specify a chemical or physical form\nof cocaine. These documents are equally consistent with both the Government’s and\nFerguson’s theories, so they do not assist us. Therefore, the statute is not divisible\nby isomer, and we cannot consider the modified categorical approach.\n\n 3\n The Arkansas Supreme Court does not permit its unpublished decisions prior\nto July 1, 2009 to be cited as precedential except in related or continuing litigation.\nArk. Sup. Ct. R. 5-2(c).\n -6-\n\f Third, the Government argues that Meux, 918 F.3d at 590-91 indicates that\nFerguson’s conviction under section 5-64-401(a)(1)(A)(i) is a predicate offense.\nBut Meux did not address the scope of section 5-64-401(a)(1)(A)(i)’s definition of\ncocaine, so Meux does not bind us here. See Streu v. Dormire, 557 F.3d 960, 964\n(8th Cir. 2009) (“[W]e are generally not bound by a prior panel’s implicit resolution\nof an issue that was neither raised by the parties nor discussed by the panel.”).\n\n III. Conclusion\n\n Because section 5-64-401(a)(1)(A)(i) criminalizes a wider range of cocaine\nisomers than § 102 of the CSA, Ferguson’s conviction under section 5-64-\n401(a)(1)(A)(i) was not for a “serious drug offense” and did not qualify as a\npredicate offense for the ACCA enhancement. As a result, Ferguson did not have\nthe requisite number of predicate convictions for the ACCA enhancement.4\nBecause the district court nonetheless applied the enhancement, we vacate his\nsentence and remand for resentencing.\n ______________________________\n\n\n\n\n 4\n Ferguson also argues that a prior residential burglary conviction does not\nqualify as a predicate offense for the ACCA sentence enhancement. However,\nbecause we conclude that his conviction under section 5-64-401(a)(1)(A)(i) does not\nqualify as a predicate offense and because he only has three prior felony convictions,\nwe need not address his burglary conviction here.\n -7-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11236223/", "author_raw": "GRUENDER, Circuit Judge."}]}	SMITH	GRUENDER	SHEPHERD	1		{"SMITH": ", Circuit", "GRUENDER": ", Circuit", "SHEPHERD": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10769638/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,769,639	Rusby Aguilar-Hernandez v. Pamela Bondi	2026-01-06	24-2427	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Before COLLOTON, Chief Judge, SMITH and SHEPHERD, Circuit Judges.", "parties": "", "opinions": [{"author": "COLLOTON, Chief Judge", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 24-2427\n ___________________________\n\n Rusby Dionisia Aguilar-Hernandez; J.A.A.,\n\n lllllllllllllllllllllPetitioners,\n\n v.\n\n Pamela Bondi, Attorney General of the United States,\n\n lllllllllllllllllllllRespondent.\n ____________\n\n Petition for Review of an Order of the\n Board of Immigration Appeals\n ____________\n\n Submitted: September 17, 2025\n Filed: January 6, 2026\n ____________\n\nBefore COLLOTON, Chief Judge, SMITH and SHEPHERD, Circuit Judges.\n ____________\n\nCOLLOTON, Chief Judge.\n\n Rusby Dionisia Aguilar-Hernandez and her minor child, Jose Adiel Arreaga\nAguilar, petition for review of an order of the Board of Immigration Appeals. The\nBoard denied their applications for asylum, withholding of removal, and relief under\nthe Convention Against Torture. With respect to Aguilar-Hernandez’s petition, we\nconclude that there was no legal error and that substantial evidence supports the\n\fBoard’s decision, so we deny her petition. Because the minor child seeks asylum as\na derivative beneficiary of Aguilar-Hernandez, we deny his petition as well.\n\n I.\n\n Aguilar-Hernandez and her son are citizens of Guatemala. In 2011, when she\nwas fifteen years old, Aguilar-Hernandez met Cesar Humberto Arreaga Soto, then\naged nineteen. Aguilar-Hernandez and Arreaga Soto began a romantic relationship\nand moved in together. Their child, Jose, was born in June 2012. After Jose was\nborn, the relationship between the parents quickly deteriorated.\n\n Aguilar-Hernandez asserts that Arreaga Soto raped her weekly. Arreaga Soto\nallegedly hit Aguilar-Hernandez every day, thereby causing scars and bruises on\nAguilar-Hernandez’s body. Arreaga Soto threatened to kill Aguilar-Hernandez if she\never disclosed what he was doing. Arreaga Soto repeatedly referred to Aguilar-\nHernandez as a “bitch,” “whore,” and “prostitute.” But Aguilar-Hernandez never\nfiled a police report about the allegations.\n\n On three separate occasions, Aguilar-Hernandez moved to her sister’s home in\nthe hope of ending her relationship with Arreaga Soto. Each time, Arreaga Soto\napologized to Aguilar-Hernandez, and the couple reconciled. But Arreaga Soto’s\nabusive behavior continued.\n\n On January 1, 2016, Aguilar-Hernandez and Jose left Guatemala. On January\n17, they were arrested at the border of the United States and detained pending\ndeportation. On January 25, the Department of Homeland Security commenced\nremoval proceedings.\n\n Aguilar-Hernandez applied for asylum, humanitarian asylum, withholding of\nremoval, and relief under the Convention Against Torture. Jose sought relief as as\n\n -2-\n\fa derivative beneficiary of Aguilar-Hernandez. After a hearing, the immigration\njudge denied Aguilar-Hernandez’s application and the derivative application from\nJose. On administrative appeal, the Board affirmed the immigration judge’s decision.\n\n Aguilar-Hernandez and Jose petition for review of the Board’s decision. We\nreview questions of law de novo and findings of fact for substantial evidence. Ngugi\nv. Lynch, 826 F.3d 1132, 1136 (8th Cir. 2016). Under the substantial evidence\nstandard, findings are conclusive unless any reasonable adjudicator would be\ncompelled to conclude to the contrary. 8 U.S.C. § 1252(b)(4)(B); see Nasrallah v.\nBarr, 590 U.S. 573, 576 (2020).\n\n II.\n\n Aguilar-Hernandez first argues that the Board erred by denying her application\nfor asylum. An applicant is eligible for asylum if she is unable or unwilling to return\nto her country “because of persecution or a well-founded fear of persecution on\naccount of race, religion, nationality, membership in a particular social group, or\npolitical opinion.” 8 U.S.C. § 1101(a)(42)(A); see 8 C.F.R. § 1208.13(a).\n\n Aguilar-Hernandez claims that she suffered persecution on account of her\nmembership in three particular social groups: (1) Guatemalan women; (2)\nGuatemalan women viewed as property within a domestic relationship; and (3)\nGuatemalan women who are unable to leave a relationship. To show that persecution\nis “on account of” membership in a particular social group, the applicant must\nestablish that membership “was or will be at least one central reason for persecuting\nthe applicant.” 8 U.S.C. § 1158(b)(1)(B)(i) (emphasis added). “Under the one central\nreason nexus standard, a protected ground need not be the sole reason for persecution,\nbut the protected ground cannot be incidental or tangential to the persecutor’s\nmotivation.” Garcia-Moctezuma v. Sessions, 879 F.3d 863, 868 (8th Cir. 2018)\n(internal quotation omitted).\n\n -3-\n\f The Board assumed without deciding that the proposed social groups were\ncognizable, and denied relief on the ground that Aguilar-Hernandez failed to\ndemonstrate the required nexus between the claimed persecution and her membership\nin the asserted social groups. The Board affirmed the immigration judge’s finding\nthat Arreaga Soto’s abuse of Aguilar-Hernandez “stemmed from their uniquely\npersonal relationship,” and concluded that the asserted persecution was “the result of\na private and personal dispute.” Aguilar-Hernandez disputes this finding and\ncontends that Arreaga Soto’s conduct “reflects broader attitudes towards Guatemalan\nwomen.” Aguilar-Hernandez maintains that Arreaga Soto physically and verbally\nabused her only because she is a woman.\n\n The record does not compel the conclusion that Aguilar-Hernandez was\npersecuted on account of her membership in one of the proposed social groups. The\nimmigration judge found that “there are many reasons why [Arreaga Soto] was\nabusive,” and that Aguilar-Hernandez failed to show that her membership in a\nparticular social group was a “central reason” for the abuse. Aguilar-Hernandez\ntestified that Arreaga Soto did not like to work, “just wanted to drink,” and “would\nuse the money he earned when he did work to buy alcohol.” The immigration judge\nfound that Arreaga Soto’s use of alcohol led to his abuse of Aguilar-Hernandez.\nOther evidence supported an inference that Arreaga Soto’s abuse was motivated by\nhis belief that Aguilar-Hernandez was unfaithful in their relationship and by his\ndesire to extract money from her. Aguilar-Hernandez did not decide to leave Arreaga\nSoto once and for all until she discovered that he was having affairs with other\nwomen. The Board cited the immigration judge’s findings on these points, and the\nrecord supports the Board’s conclusion that Aguilar-Hernandez’s membership in one\nof the proposed social groups was “incidental” or “tangential” to Arreaga Soto’s\nmotivation for the alleged persecution.\n\n We therefore conclude that the Board properly denied the applications for\nasylum. Aguilar-Hernandez’s claim for humanitarian asylum likewise fails because\n\n -4-\n\fshe did not show past persecution based on membership in a particular social group.\nSee Mejia-Lopez v. Barr, 944 F.3d 764, 767-69 (8th Cir. 2019). Because withholding\nof removal requires an applicant to meet a higher standard of proof, those claims fail\nas well. See Rivas v. Sessions, 899 F.3d 537, 542 (8th Cir. 2018).\n\n Aguilar-Hernandez argues that the Board erred in denying her relief under the\nConvention Against Torture. To qualify for relief, an alien must prove “that it is\nmore likely than not that he or she would be tortured if removed.” 8 C.F.R.\n§ 1208.16(c)(2). The alien must show that pain or suffering would be inflicted “by,\nor at the instigation of, or with the consent or acquiescence of” a public official or\nother person acting in an official capacity. 8 C.F.R. § 1208.18(a)(1). A government\nacquiesces when it is willfully blind to torture by private parties. Hassan v. Rosen,\n985 F.3d 587, 590 (8th Cir. 2021).\n\n Aguilar-Hernandez argued before the agency that the “Guatemalan government\nhas demonstrated a total lack of political will to ensure compliance with the law,” and\nhas failed to address domestic and sexual violence. The immigration judge found that\nevidence of country conditions in Guatemala did not support a determination that the\ngovernment acquiesced in torture. The Board cited the judge’s finding, and\nconcluded that Aguilar-Hernandez “has not presented particularized evidence that it\nis more likely than not she would be tortured upon returning to Guatemala by or with\nthe acquiescence or willful blindness of a public official.”\n\n The Board’s conclusion is supported by substantial evidence. Aguilar-\nHernandez cites evidence of corruption, but the record does not compel the\nconclusion that the Guatemalan government has acquiesced in torture against women.\nSee Garcia-Milian v. Holder, 755 F.3d 1026, 1035 (9th Cir. 2014). The judiciary\noperates a twenty-four-hour court in Guatemala City that offers services to women\nwho have experienced domestic violence or sexual assault. In 2008, the legislature\nenacted a femicide law to combat violence against women, and provided for penalties\n\n -5-\n\fof twenty-five to fifty years in prison. The law also criminalized for the first time\nvarious acts of violence against women, including forms of physical, psychological,\nand economic violence. Specialized courts hear cases involving crimes charged\nunder the law. While there was evidence of serious problems with violence against\nwomen, the record established that the Guatemalan government has taken steps to\ncombat such violence and did not acquiesce in torture. The Board properly denied\nAguilar-Hernandez’s claim for relief under the Convention Against Torture.\n\n For these reasons, the petitions for review are denied.\n ______________________________\n\n\n\n\n -6-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11236224/", "author_raw": "COLLOTON, Chief Judge"}]}	COLLOTON	SMITH	SHEPHERD	1		{"COLLOTON": ", Chief", "SMITH": ", Circuit", "SHEPHERD": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10769639/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,769,640	Rene Valdivia v. Derek Porsch	2026-01-06	24-1668	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Before LOKEN, KELLY, and ERICKSON, Circuit Judges.", "parties": "", "opinions": [{"author": "KELLY, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 24-1668\n ___________________________\n\n Rene Valdivia; Alexis Free\n\n Plaintiffs - Appellants\n\n v.\n\nDerek Porsch; Gabriel Christensen; Derick Seaton; Coby Gust; Todd Johnson; City\n of Audubon, Iowa; Audubon County, Iowa\n\n Defendants - Appellees\n ____________\n\n Appeal from United States District Court\n for the Southern District of Iowa - Western\n ____________\n\n Submitted: September 16, 2025\n Filed: January 6, 2026\n ____________\n\nBefore LOKEN, KELLY, and ERICKSON, Circuit Judges.\n ____________\n\nKELLY, Circuit Judge.\n\n After Rene Valdivia and Alexis Free were charged in state court with several\ncriminal offenses, they moved to suppress evidence seized at the time of their arrest.\nThe state court granted the motions, and all charges were dismissed. Valdivia and\nFree then sued the arresting officers and others pursuant to 42 U.S.C. § 1983 and\n\fstate law. The district court1 granted the defendants’ motions for summary judgment,\nand Valdivia and Free appeal. We affirm.\n\n I.\n\n On October 8, 2022, Officer Porsch was on night patrol when he noticed a car\nwithout an operating license plate light driving in the opposite direction. He made a\nU-turn to follow it, but he did not activate his emergency lights. After a few turns,\nPorsch saw the car pull over on a residential street, at which point a person—later\nidentified as Free—got out from the passenger side and began to run. Porsch pulled\nup next to the driver’s side of the car and spoke to the driver—a man later identified\nas Valdivia. When Porsch asked why the passenger ran, Valdivia said she wanted to\nsee a sick aunt.\n\n Porsch then drove away to look for the passenger, circling the block.\nReturning to where he saw her run from the car, Porsch got out of his squad car to\nask a nearby resident whether anyone had come to his home. The resident said no.\nPorsch then saw Valdivia standing on the sidewalk and asked him for his\nidentification. As he handed Porsch his driver’s license, Valdivia admitted it was\nsuspended. Valdivia also told Porsch he had not been driving but had switched seats\nwith the passenger. Porsch responded by saying he knew Valdivia was driving\nbecause he saw him in the driver’s seat and saw Free “get out of the passenger seat.”\nHe also told Valdivia, “We need to find her, because that was weird.”\n\n Porsch asked Valdivia if there was “anything illegal” in the car, and Valdivia\nsaid no. Porsch then asked for the registration and insurance. Valdivia said the car\nwas not his, but he would try to get his friend to send copies over the phone. Porsch\nwalked to the car, shined a flashlight through the passenger-side window, and said,\n“There’s marijuana in there.” Valdivia repeated that it was not his car.\n\n\n 1\n The Honorable Stephen H. Locher, United States District Judge for the\nSouthern District of Iowa.\n\n -2-\n\f Meanwhile, Deputies Derick Seaton and Gabriel Christensen arrived. Porsch\nagain told Valdivia they needed to find the passenger, and Christensen asked for her\nname. Valdivia responded that he did not “need to tell [them] her name.” Valdivia\ntried to reach Free by phone, but she did not answer. After patting him down, Porsch\ntold Valdivia he was being detained, handcuffed him, and placed him in the back of\nhis squad car.\n\n Seaton then went on foot to look for the passenger. After several minutes,\nValdivia offered to help and called out for her. A few minutes later, Seaton found\nher, and she was detained, handcuffed, and escorted to his squad car. When asked,\nFree refused to give her name. The officers then searched the car and found\nmarijuana, methamphetamine, and drug paraphernalia. They also found a social\nsecurity card in the name of Alexis Free, who was then identified as the passenger.\n\n After all state criminal charges against them were dismissed, Valdivia and\nFree filed this § 1983 action, alleging violations of their Fourth Amendment rights\nand of state law. The district court granted the defendants’ motions for summary\njudgment. On appeal, Valdivia and Free assert that the district court erred in\nconcluding Porsch and Seaton were entitled to qualified immunity on the federal\nclaims against them.2 We address each claim in turn.\n\n II.\n\n A.\n\n We review a grant of summary judgment based on qualified immunity de\nnovo. Michael v. Trevena, 899 F.3d 528, 531 (8th Cir. 2018). In doing so, we view\nthe record in light most favorable to the non-moving party and draw all inferences\nin their favor. Id. at 532. A state official is entitled to qualified immunity unless: “(1)\n\n 2\n Valdivia and Free do not appeal the grant of summary judgment on any other\nclaim or for any other defendant; nor do they appeal the district court’s decision to\ndecline to exercise supplemental jurisdiction over some of the state law claims.\n\n -3-\n\fhe violated a constitutional right, and (2) that constitutional right was clearly\nestablished so that a reasonable officer would know of the right at the time of the\nalleged violation.” Thurairajah v. City of Fort Smith, 925 F.3d 979, 982 (8th Cir.\n2019) (citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)).\n\n B.\n\n First, Valdivia argues that Porsch lacked reasonable suspicion to detain him\nwhile he and the other officers searched for Free. “Law enforcement officers may\nmake an investigatory stop if they have a reasonable and articulable suspicion of\ncriminal activity.” United States v. Hightower, 716 F.3d 1117, 1119 (8th Cir. 2013)\n(quoting United States v. Bustos-Torres, 396 F.3d 935, 942 (8th Cir. 2005)). “In\ndetermining whether [Porsch] possessed reasonable suspicion to conduct a\ntemporary investigative detention, or ‘Terry stop,’ [we] look only at the information\n[Porsch] possessed at the time.” Waters v. Madson, 921 F.3d 725, 736 (8th Cir.\n2019) (first citing Terry v. Ohio, 392 U.S. 1, 21–22 (1968); and then citing Graham\nv. Connor, 490 U.S. 386, 396 (1989)). Even if “we determine that [Porsch] lacked\nreasonable suspicion and thus conducted an unlawful Terry stop, []he may\nnonetheless be entitled to qualified immunity if []he had arguable reasonable\nsuspicion—that is, if a reasonable officer in the same position could have believed\n[]he had reasonable suspicion.” Id. (citing De la Rosa v. White, 852 F.3d 740, 745–\n46 (8th Cir. 2017)). Reasonable suspicion requires “something more than an\n‘inchoate and unparticularized suspicion or hunch[,]’” id. (quoting Terry, 392 U.S.\nat 27), and is assessed based on the totality of the circumstances, United States v.\nLemons, 84 F.4th 766, 769 (8th Cir. 2023) (“In evaluating whether an officer has\nreasonable suspicion, we consider the totality of the circumstances in light of the\nofficer’s experience.”).\n\n Porsch had, at a minimum, arguable reasonable suspicion. By the time Porsch\ndetained Valdivia, he had seen Free get out of the passenger side of the car and run\naway, in the dark of night. Porsch told Valdivia that he found this behavior “weird”\nand “suspicious.” Valdivia said Free was going to see a sick aunt or her mom, but\n\n\n -4-\n\fwhen Porsch returned after circling the block, Valdivia was still there. Based on this\ninformation, Porsch was concerned that he had come upon a “rolling domestic”—\nthat is, a domestic dispute that was occurring in the car. See Lemons, 84 F.4th at 769\n(identifying “time of day or night” and “the parties’ behavior when they become\naware of the officer’s presence,” including “evasive behavior” and “unprovoked\nflight,” as factors to consider in determining whether an officer has reasonable\nsuspicion based on the totality of the circumstances).\n\n Valdivia counters that Porsch’s inability to articulate a specific crime he\nsuspected had been, or was about to be, committed means he lacked reasonable and\narticulable suspicion. See Waters, 921 F.3d at 736. Even if Porsch was required to\nidentify a specific crime, he did so here. Given Free’s flight, Valdivia’s “sick aunt”\nexplanation, and Valdivia’s continued presence in the area—neither joining Free to\nvisit her aunt nor leaving after dropping Free off—Porsch had arguable reasonable\nsuspicion to believe Free was fleeing a domestic dispute. See Lemons, 84 F.4th at\n769. The district court did not err in granting summary judgment to Porsch on this\nclaim.\n\n C.\n\n Next, Valdivia and Free argue that Porsch and Seaton conducted an\nunconstitutional warrantless search of the car. Warrantless searches “are per se\nunreasonable under the Fourth Amendment—subject only to a few specifically\nestablished and well-delineated exceptions.” United States v. Evans, 830 F.3d 761,\n765–66 (8th Cir. 2016) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 454–\n55 (1971) (plurality opinion)). The exception at issue here is “the plain view\ndoctrine.” See id. at 766. Under this exception, officers may seize contraband\nwithout a warrant “if they are lawfully present in a place to view the object, the\nincriminating character of the object is immediately apparent, and the officers have\na lawful right of access to the object.” United States v. Hayes, 75 F.4th 925, 928 (8th\nCir. 2023) (citing Horton v. California, 496 U.S. 128, 136–37 (1990)).\n\n\n\n -5-\n\f On appeal, Valdivia and Free argue 3 that a genuine dispute of material fact\nremains as to whether the incriminating character of the marijuana in the car was\n“immediately apparent.” Porsch testified that he recognized the substance as\nmarijuana and—contrary to Valdivia and Free’s assertion otherwise—that he relied\non both his training and his experience when he did so. Porsch’s body camera video\nalso recorded him when he said, “There’s marijuana in there.” Valdivia and Free\npoint out that no marijuana can be seen on Porsch’s body camera footage, but they\noffer nothing to substantiate the notion that Porsch did not see what he believed to\nbe marijuana in the car. See Smith v. Kilgore, 926 F.3d 479, 484 (8th Cir. 2019)\n(“[Plaintiffs] ‘may not stave off summary judgment armed with only the hope that\nthe jury might disbelieve witnesses’ testimony.’”) (quoting Thompson v. Hubbard,\n257 F.3d 896, 899 (8th Cir. 2001)). The district court did not err in granting summary\njudgment to both officers on this claim. See United States v. Smith, 990 F.3d 607,\n612 (8th Cir. 2021).\n\n D.\n\n Finally, Valdivia and Free argue that they were arrested without probable\ncause. “A warrantless arrest is consistent with the Fourth Amendment if it is\nsupported by probable cause, and an officer is entitled to qualified immunity if there\nis at least ‘arguable probable cause.’” Stewart v. Garcia, 139 F.4th 698, 705 (8th Cir.\n2025) (quoting Gilmore v. City of Minneapolis, 837 F.3d 827, 832 (8th Cir. 2016)).\n\n Porsch had probable cause to arrest Valdivia. Porsch saw Valdivia in the\ndriver’s seat of a car that had just pulled over, and Valdivia admitted he had a\nsuspended driver’s license. In addition, Porsch saw marijuana in the car. On these\n\n\n 3\n Valdivia and Free also contend that the two officers were not “lawfully\npresent” at the car because it was Valdivia’s unlawful detention that “facilitated their\narrival at the vehicle,” but we have already resolved this issue. In any event, “[t]he\nact of looking through a car window is not a search for Fourth Amendment\npurposes[.]” United States v. Bynum, 508 F.3d 1134, 1137 (8th Cir. 2007) (citing\nUnited States v. Hatten, 68 F.3d 257, 261 (8th Cir. 1995)).\n\n -6-\n\ffacts, there was probable cause to arrest Valdivia for driving with a suspended\nlicense—a serious misdemeanor, see Iowa Code § 321J.21; State v. Werner, 919\nN.W.2d 375, 377 (Iowa 2018), and for possession of marijuana, see Iowa Code\n§ 124.401(5)(a)-(e); United States v. Haynes, 958 F.3d 709, 715 (8th Cir. 2020)\n(finding probable cause to arrest the defendant after he produced a marijuana\ncigarette) (citations omitted).\n\n And, at the least, arguable probable cause supported Free’s arrest. By the time\nshe was taken into custody, Porsch had found marijuana on the passenger side of the\ncar where Free had been sitting. This was sufficient to find Porsch had arguable\nprobable cause to arrest Free for possession of marijuana. See Iowa Code\n§ 124.401(5)(a)–(e); see United States v. Mathes, 58 F.4th 990, 994 (8th Cir. 2023)\n(finding probable cause to find the defendant was in possession of methamphetamine\nfound in a car in which she was driving). The district court did not err in granting\nsummary judgment to the officers on this claim.\n\n III.\n\n We affirm the judgment of the district court.\n ______________________________\n\n\n\n\n -7-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11236225/", "author_raw": "KELLY, Circuit Judge."}]}	LOKEN	KELLY	ERICKSON	1		{"LOKEN": ", Circuit", "KELLY": ", Circuit", "ERICKSON": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10769640/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,769,641	Kent Payne v. Eyerly-Ball	2026-01-06	24-3238	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Before SMITH, GRUENDER, and SHEPHERD, Circuit Judges.", "parties": "", "opinions": [{"author": "SHEPHERD, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 24-3238\n ___________________________\n\n Kent H. Payne, executor Estate of Jordan Kent Payne; Leslie Payne\n\n Plaintiffs - Appellants\n\n v.\n\n Eyerly-Ball Community Mental Health Services; Scott Thomas\n\n Defendants - Appellees\n\n John Weakland; Jason Barnes; Madison County, Iowa\n\n Defendants\n ____________\n\n Appeal from United States District Court\n for the Southern District of Iowa - Central\n ____________\n\n Submitted: September 18, 2025\n Filed: January 6, 2026\n ____________\n\nBefore SMITH, GRUENDER, and SHEPHERD, Circuit Judges.\n ____________\n\nSHEPHERD, Circuit Judge.\n\n Jordan Payne, the son of Appellants Kent and Leslie Payne, tragically took\nhis own life while incarcerated in the Madison County Jail in Winterset, Iowa. The\nday of his suicide, Jordan met with Appellee Scott Thomas, an employee of Appellee\n\fEyerly-Ball Community Mental Health Services (Eyerly-Ball). During this meeting,\nJordan made several statements reflecting that he was experiencing an acute mental\nhealth crisis. But he also told Thomas that he was not “going to kill [himself] here,”\nand just could not guarantee what he might do when he got out of custody. After\nconcluding his interview with Jordan, Thomas told jail employee John Weakland\nthat “Jordan had specifically told [him] on more than one occasion that he was not\ngoing to hurt himself in custody, but he was not sure what would happen when he\nleft.” Thomas did not, however, report Jordan’s other statements to Weakland. After\nthis conversation, Weakland had no concern that Jordan would harm himself. But\napproximately 10 minutes after Weakland returned him to his cell, Jordan hanged\nhimself. The Paynes sued Thomas and Eyerly-Ball, alleging that their negligence\ncontributed to Jordan’s death. The district court granted Thomas and Eyerly-Ball\nsummary judgment on the Paynes’ negligence claims, reasoning that Thomas and\nEyerly-Ball owed Jordan no legal duty. Having jurisdiction under 28 U.S.C. § 1291,\nwe reverse the district court’s grant of summary judgment.\n\n I.\n\n Jordan was booked into the Madison County Jail on June 9, 2020, on a warrant\nfor contempt of court. During the booking process, Jordan indicated in response to\nscreening questions that he had mental illnesses and a history of self-harm. Two\ndays later, on June 11th, Jordan requested mental health services. Jail staff\ncommunicated this request to Thomas the same day. Thomas responded that he\nwould come to the jail on the afternoon of June 12th.\n\n At the time, Thomas worked for Eyerly-Ball as a Jail Diversion Case\nManager. Eyerly-Ball is a community health center that provides mental health\nservices in 20 Iowa counties. In 2020, it provided jail diversion and intensive case\nmanagement services at the Madison County Jail under a contract. These services\ngenerally included screening inmates for mental health needs and connecting\ninmates to mental health service providers. Thomas describes his job responsibilities\nas a Jail Diversion Case Manager as including “screen[ing] individuals for possible\n -2-\n\fmental health concerns and discuss[ing] options for services and then refer[ring]\n[them] to services.”\n\n On the morning of June 12th, Leslie Payne called the Madison County\nSheriff’s Department to report that Jordan was “going nuts” and threatening to\n“chew the veins out of his arm.” Leslie had learned this information from Jordan’s\ngirlfriend, who was communicating with him via the jail’s Chirp messaging system.\nThat afternoon, Weakland brought Jordan medications and asked if Jordan was “ok.”\nJordan responded that he needed to speak with a doctor, was “losing it in here,” and\nthat while he was generally “doing alright” his “head [was] just not right.” Despite\nhis answers to the jail’s initial screening questions, his mother’s call to the Sheriff’s\nDepartment, and his statements to Weakland, Jordan was not placed on suicide\nwatch or on any special monitoring plan.\n\n Rather, Jordan simply met with Thomas as planned on the afternoon of the\n12th. Thomas explained to Jordan that Eyerly-Ball is a “mental health agency” and\nthat what it does is “meet with folks who are in jail here, [and] see if there’s any\nmental health concerns that they might have.” Thomas also mentioned that he had\nspoken with Weakland, who had informed him that Jordan was “concerned about\n[his] medications.” Jordan—who struck Thomas as “agitated” and\n“animated”—shared the following with Thomas:\n\n • I don’t get this, and I lost everything. I lost my girlfriend. I lost\n - - I lost my house [inaudible], my Jeep. I’m going to be\n homeless when I get out [of] here. So I’m not doing so well at\n all.\n\n • I’m losing - - losing everything up there, and I’m sitting here and\n I [inaudible] g[a]ve myself a black eye because I’m hearing these\n fucking things in my head telling me all sorts of stupid shit, and\n I’m not trying to listen to it, and I went back on Seroquel, so\n [inaudible] hearing voices good.\n\n • I’m not in good shape right now.\n\n -3-\n\f • I got a girlfriend just now who thinks I’m cheating on her. It’s\n not - - And then, you know, everything was - - everything was\n great. You know, I went to prison, and I rebuilt my life back up,\n and then now I’m not doing so well. I’m not doing great. I was\n doing great up until Monday. I mean, I had a great job. I was -\n - the Vraylar and BuSpar worked just fine, but here I am, I got\n no TV and I’m stuck in a room for weeks [inaudible] nothing. I\n mean I got [inaudible] roommate. I got no TV. I got a phone\n [that] doesn’t work.\n\n • Well, hey, I’ve got a broken [inaudible] ankle, I’ve got a broken\n tailbone too.\n\n • I can’t do nothing. . . . I’m not normally this way. I don’t know\n what the hell’s wrong with me, Scott. I’m not this way at all.\n\n • I got one of those - - those Chirp things, one of those so you can\n text back and forth - - - - to the outside and all that stuff. Yeah,\n right now my girlfriend thinks I cheated on her four weeks ago,\n so now I know that’s gone; but, like, I’m getting these thoughts\n in my head and shit like that, and the only person I got to talk to\n was her and all that shit, and I’m afraid that she might just call\n up here and say, you know, put him on suicide watch and all that\n shit. . . . But I got these thoughts in my head that are like: Chew\n my veins out. I mean, shit like that. Like, I don’t want these\n thoughts in my head.\n\n • I went to prison for slitting my wrists . . . .\n\n After sharing this information with Thomas, Jordan asked if their conversation\nwould remain confidential. Thomas assured him it would, unless Thomas received\na subpoena. Jordan then divulged the following:\n\n • So I’ve had like seven suicide attempts in the past year. I lost my\n kids. I lost everything. I’m not going to kill myself here, but I\n [am not] going to guarantee I w[on’t] kill myself when I leave\n here.\n\n -4-\n\f • I got nothing left anymore, and I don’t know - - I mean, I can’t\n sleep. I can’t - - There’s nothing I can do. I’m sitting here, and\n just I’m thinking, and I’m hearing shit, and this won’t go away,\n hence the black eye.\n\n • I’m not like this normally, but I [don’t want to] go on suicide\n watch, and I’m [inaudible] to kill myself here. I don’t want to.\n I’m not going to [inaudible] that.\n\n • I don’t want to kill myself in general. I’m sorry. Sorry. Count\n to ten.\n\n • After I slit my wrists, they brought me here instead of taking me\n to the hospital.\n\n • And they chained me to the bed with bloody wrists. . . . I’m\n pretty much in solitary confinement, and I did nothing wrong. I\n just got here on M-, M-, - - Tuesday. Yeah, I haven’t ate\n anything. I won’t eat anything. I’m afraid [inaudible] the food.\n I haven’t ate one meal since I’ve been here.\n\n • I can calm myself down; I just can’t keep it calm. Does that make\n sense?\n\n • Then [inaudible] started fucking slapping myself or start hitting\n myself. I didn’t do this before. What the fudge is happening to\n me? I’m going insane.\n\n • I’ve never done it before, but I just want it to stop. Have you\n ever had a thought to, like, chew your own veins out of your\n frickin’ hand - - or arm? . . . Yeah. And neither have I. Neither\n have I. Until now. What the shit? It’s just insane [inaudible]\n crazy in there.\n\n Thomas told Jordan that he would schedule Jordan for “the first available\nappointment I can get to see the psychiatrist.” Shortly after the meeting concluded,\nThomas told Weakland that Payne had said that “he was not going to hurt himself in\n\n -5-\n\fcustody, but he was not sure what would happen when he left.” Thomas later\nexplained that he told Weakland this because he “felt that [it] was important for\n[Weakland] to know [this information] for caring for [Payne], [and] supervising\nhim.” But Thomas did not relay Jordan’s statements about his prior suicide attempts,\nhis history of mental illness, current injuries that were causing him pain, hearing\nvoices, difficulty sleeping, his sense of hopelessness and impression that he would\nhave nothing when he got out of custody, or relationship difficulties. And Thomas\ndoes not remember if he told Weakland that Payne had commented on thinking about\nchewing out his veins. When later deposed in this matter, Weakland testified that\nhe did “not recall the specifics of [his] conversation” with Thomas but knew “at the\ntime there was no concern that Jordan was going to hurt himself” and that “after we\nspoke [] there was not any concern.”\n\n Madison County Sheriff Jason Barnes, who held overall supervisory authority\nover the jail, testified that jail staff relied on Thomas and Eyerly-Ball to respond to\ninmate mental health crises and communicate those inmates’ needs to them. Sheriff\nBarnes explained that “[i]f we have an inmate in our jail that’s having a mental crisis\nor issue or needs assistance of some type mentally, we will then contact Eyerly Ball.\nThey will then send Scott Thomas down, or whoever they have working, to do his\nthing.” Sheriff Barnes also testified that it was his “understanding [that]\n[Eyerly-Ball] w[as] going to help us help inmates who were having mental health\ncrises” and would “keep us informed.” In Sheriff Barnes’s view, it was Thomas’s\nrole to “come in and meet with the inmate, and then . . . make a determination what\nthe best move is from th[at] point on.” Sheriff Barnes also agreed that he believed\nThomas “would be in a position to evaluate or at least make a preliminary assessment\nof the inmates’ mental health conditions” and “suicide risk.” And he expected that\n“there would be open communication . . . on what’s going on, [and] what [jail staff]\nneed[ed] to do next” and that Thomas, if he identified concerning behaviors\nindicating risk to an inmate, would communicate those to jail staff.\n\n Consistent with Sheriff Barnes’ expectations, Thomas testified that relaying\ninmate suicide risks to jail staff would be in line with his job duties. Per Thomas, if\n -6-\n\fan inmate “check[ed] all the boxes” for suicide risk, he would communicate to jail\nstaff that the inmate was “checking all the boxes. This is what’s going on. This\nperson is saying this, this, and this.” Thomas agreed that it would be “important”\nfor him “to communicate th[is] information to Madison County” in order for him to\n“fulfill [his] job obligations with Eyerly Ball” and that it would be “imperative” and\n“consistent with what [he was] hired and paid to do to forward th[is] information on\nto the jail.” He further agreed that it was generally important for him to\ncommunicate effectively with the jail and that effective communication was part of\nhis job.\n\n After speaking with Thomas, Weakland escorted Jordan back to his cell.\nAbout 10 minutes later, Jordan hanged himself. Roughly 90 minutes after that,\nWeakland discovered Jordan’s body while checking on his cell.\n\n The Paynes filed a six-count complaint in the district court, alleging 42 U.S.C.\n§ 1983 and supplemental state-law claims against Weakland, Barnes, Madison\nCounty, Eyerly-Ball, and Thomas. The district court dismissed the Paynes’\nfederal-law claims on a motion for partial summary judgment. But it retained\njurisdiction over their state-law claims in view of “the substantial amount of time\nand judicial resources expended in this case.” The Paynes then dismissed with\nprejudice their remaining claims against Weakland, Barnes, and Madison County.\nAt that point, the only claims remaining in the suit were Iowa-law negligence claims\nagainst Thomas and Eyerly-Ball and a wrongful death claim against Thomas.\n\n Thomas and Eyerly-Ball filed a second motion for summary judgment,\ncontending that they were entitled to judgment as a matter of law because they owed\nJordan no legal duty. The district court agreed. Relying on §§ 40 and 42 of the\nRestatement (Third) of Torts, the district court reasoned that neither defendant owed\nJordan a duty based on a special custodial relationship or based on a voluntary\nundertaking. The district court further reasoned that, to the extent that the Paynes\nwere attempting to assert negligent training and negligent supervision claims against\n\n\n -7-\n\fEyerly-Ball, the Paynes had failed to raise genuine disputes of material fact on other\nelements.\n\n The Paynes appeal. They contest only the district court’s no-duty\ndetermination.\n\n II.\n\n “We review a district court’s grant of summary judgment de novo, including\nits interpretation of state law.” Metro. Prop. & Cas. Ins. Co. v. Calvin, 802 F.3d 933,\n937 (8th Cir. 2015) (citation omitted). “Summary judgment is appropriate when,\nviewing the facts in the light most favorable to the non-movant, there are no genuine\nissues of material fact and the movant is entitled to judgment as a matter of law.”\nId. (citation omitted).\n\n Under Iowa law, “[a]n actionable claim of negligence requires ‘[1] the\nexistence of a duty to conform to a standard of conduct to protect others, [2] a failure\nto conform to that standard, [3] proximate cause, and [4] damages.’” Thompson v.\nKaczinski, 774 N.W.2d 829, 834 (Iowa 2009) (citation omitted). “Duty is a question\nof law for the court to decide.” Morris v. Legends Fieldhouse Bar & Grill, LLC,\n958 N.W.2d 817, 822 (Iowa 2021). But “if the facts underlying a plaintiff’s claim\nof duty are disputed, summary judgment is improper.” McGraw v. Wachovia Sec.,\nL.L.C., 756 F. Supp. 2d 1053, 1077 (N.D. Iowa 2010) (applying Iowa law); see also\nSankey v. Richenberger, 456 N.W.2d 206, 207 (Iowa 1990) (concluding that\n“resolution by way of summary judgment is proper” when “the facts underlying the\nplaintiffs’ claim of duty are not disputed”).\n\n It is blackletter law that “[a]n actor ordinarily has a duty to exercise reasonable\ncare when the actor’s conduct creates a risk of physical harm.” Restatement (Third)\nof Torts: Phys. & Emot. Harm § 7(a) (A.L.I. 2010); see also Morris, 958 N.W.2d at\n825 (invoking § 7 in a duty analysis). Conversely, if an actor’s conduct does not\ncreate a risk of physical harm, that actor ordinarily owes no duty unless some\n -8-\n\faffirmative duty recognized in law applies. See Restatement (Third) of Torts: Phys.\n& Emot. Harm § 37 (A.L.I. 2012) (“An actor whose conduct has not created a risk\nof physical . . . harm to another has no duty of care to the other unless a court\ndetermines that one of the affirmative duties provided in §§ 38-44 is applicable.”);\nMorris, 958 N.W.2d at 825 (recognizing the general rule that there is no duty of care\nwhen an actor’s conduct does not create a risk of harm).\n\n On appeal, the Paynes do not argue that the ordinary duty of care recognized\nin § 7 applies—i.e., they do not contend that Thomas and Eyerly-Ball created the\nrisk that Jordan would commit suicide. Instead, they assert that Thomas and\nEyerly-Ball owed Jordan affirmative duties. They argue that two such duties are\nimplicated here.\n\n A.\n\n The Paynes first point to the duty to third parties based on undertakings to\nothers recognized in Restatement (Second) of Torts § 324A (A.L.I. 1965) and its\nsuccessor section in the current Restatement, Restatement (Third) of Torts: Physical\n& Emotional Harm § 43 (A.L.I. 2012). Thomas and Eyerly-Ball counter that the\nPaynes waived their arguments under §§ 324A and 43 because they relied on two\ndifferent Restatement provisions—§ 323 of the Second Restatement and its\nsuccessor provision, § 42 of the Third Restatement—in the proceedings before the\ndistrict court.\n\n But these Restatement provisions all substantially overlap. All contemplate a\nduty of care under the same general circumstances: when the defendant embarks on\nan undertaking calculated to reduce the risk of physical harm to another but instead\nincreases that risk (possibly because some other party is relying on the defendant to\nexercise reasonable care). Compare Restatement (Second) of Torts § 324A (A.L.I.\n1965), and Restatement (Third) of Torts: Phys. & Emot. Harm § 43 (A.L.I. 2012),\nwith Restatement (Second) of Torts § 323 (A.L.I. 1965) and Restatement (Third) of\n\n\n -9-\n\fTorts: Phys. & Emot. Harm § 42 (A.L.I. 2012). To the extent they do overlap,1 there\nis no waiver. And—as Thomas and Eyerly-Ball concede—the duty analysis is the\nsame “regardless of which Restatement provision is analyzed.”\n\n Because the district court applied § 42 of the Third Restatement in its duty\nanalysis, we will too. 2 Section 42 provides that:\n\n An actor who undertakes to render services to another and who knows\n or should know that the services will reduce the risk of physical harm\n to the other has a duty of reasonable care to the other in conducting the\n undertaking if:\n\n (a) the failure to exercise such care increases the risk of harm\n beyond that which existed without the undertaking, or\n\n 1\n Sections 323 and 42 differ from §§ 324A and 43 in one way that is potentially\nrelevant here: they always require increased risk or reliance, where §§ 324A and 43\ncan be satisfied by the mere showing that the defendant has undertaken a duty owed\nby another to the plaintiff. See Restatement (Second) of Torts § 324A(b) (A.L.I.\n1965); id. cmt. d (“Even where the negligence of the actor does not create any new\nrisk or increase an existing one, he is still subject to liability if, by his undertaking\nwith the other, he has undertaken a duty which the other owes to the third person.”);\nRestatement (Third) of Torts: Phys. & Emot. Harm § 43(b) (A.L.I. 2012); id. cmt. g\n(“When an actor undertakes to perform a duty that another person owes to a third\nperson, the actor is subject to a duty of reasonable care. This duty does not require\nincreased risk or reliance.”). Because the Paynes did not squarely argue before the\ndistrict court that Thomas and Eyerly-Ball undertook the Madison County Jail’s duty\nto Jordan within the meaning of §§ 324A(b) and 43(b), we consider that particular\ntheory of duty waived. And when that particular theory is not on the table, the duty\nanalysis is the same regardless of which Restatement provision we apply.\n 2\n The Iowa Supreme Court has applied § 42’s predecessor\nsection—Restatement (Second) of Torts § 323 (A.L.I. 1965)—in conducting duty\nanalyses. See Jain v. State, 617 N.W.2d 293, 299 (Iowa 2000) (collecting cases).\nBut § 42 of the current Restatement and § 323 of the Second Restatement do not\ndiffer in any way that is meaningful here. Compare Restatement (Third) of Torts:\nPhys. & Emot. Harm § 42 (A.L.I. 2012), with Restatement (Second) of Torts § 323\n(A.L.I. 1965).\n -10-\n\f (b) the person to whom the services are rendered or another relies\n on the actor’s exercising reasonable care in the undertaking.\n\nRestatement (Third) of Torts: Phys. & Emot. Harm § 42 (A.L.I. 2012).\n\n The district court reasoned that Thomas and Eyerly-Ball’s actions in this case\ndid not trigger a duty under § 42 because the services they rendered did not subject\nJordan to any greater risk than he would have faced had they provided no services\nat all:\n\n In this case, Thomas’s services consisted of an interview with Jordan.\n After the interview, Thomas arranged for a telehealth appointment for\n Jordan later that afternoon. As Defendants point out, Jordan was not\n on suicide watch prior to the interview, nor was he under any other\n heightened supervision. At the end of the interview, Jordan returned to\n his cell under the same level of supervision as before Thomas undertook\n his services. Plaintiffs do not identify any action that Thomas took that\n resulted in Jordan being in a worse situation than prior to his interview.\n Accordingly, there was no legal duty imposed under Section 42 of the\n Restatement.\n\n The problem with this analysis is that it views the scope of Thomas and\nEyerly-Ball’s activity exclusively from their perspective, consequently frames the\nscope of their undertaking quite narrowly, and then concludes that this narrow\nundertaking did not trigger a duty. But in ruling on a motion for summary judgment,\na district court must “view[] the facts in the light most favorable to the nonmoving\nparty and giv[e] that party the benefit of all reasonable inferences that can be drawn\nfrom the record.” Holt v. Howard, 806 F.3d 1129, 1132 (8th Cir. 2015) (citation\nomitted).\n\n Here, the Paynes adduced evidence reflecting that Thomas and Eyerly-Ball’s\nundertaking was not so limited—arguably, their undertaking included assessing and\ncommunicating suicide risks. Evidence of what Thomas and Eyerly-Ball actually\ndid informs the scope of their undertaking. Construed in the light most favorable to\n -11-\n\fthe Paynes, the record supports an inference that Thomas did not only interview\nJordan and schedule him for an appointment. Instead, the fact that Thomas passed\nJordan’s statement that he did not intend to kill himself in custody on to Weakland\nsupports an inference that Thomas did assess Jordan’s risk of self-harm and\ncommunicate his impression of that risk.\n\n Moreover, the Paynes adduced testimony that jail staff viewed Thomas and\nEyerly-Ball’s work to include assessing and communicating suicide risks. Indeed,\nwhen deposed, Sheriff Barnes explained that he expected that Thomas would\n“open[ly] communicat[e] . . . on what’s going on, [and] what [jail staff] need[ed] to\ndo next” after Thomas met with inmates, and agreed that, if Thomas identified\n“concerning behaviors or concerning statements,” the expectation was that Thomas\nwould communicate those to jail staff. Jail staffs’ view of the scope of Thomas and\nEyerly-Ball’s role is relevant to the scope of their undertaking. See Restatement\n(Third) of Torts: Phys. & Emot. Harm § 42 cmt. g (A.L.I. 2012) (“Acts that comprise\nan undertaking are often ambiguous with respect to the scope of the undertaking.\nWhen reliance is the basis for the increased risk, fairness suggests that the scope of\nthe undertaking be interpreted from the perspective of those who might reasonably\nhave relied on the undertaking.”). And Thomas himself testified that, if an inmate\n“check[ed] all the boxes” for suicide risk, it would be consistent with what he was\npaid to do to communicate that information to jail staff. A reasonable jury might\ninfer from that testimony that Thomas and Eyerly-Ball did, in fact, undertake to\nassess and communicate inmate suicide risks.\n\n When the appropriate inferences on the scope of Thomas and Eyerly-Ball’s\nundertaking are drawn, we find that fact issues exist as to increased risk and reliance\n(and thus, predicate fact issues preclude a no-duty determination). Under the current\nversion of the Restatement, “[t]he requirement that the actor increase the risk of harm\nmeans that the risk to the other person is increased beyond that which existed in the\nabsence of the actor’s undertaking.” See Restatement (Third) of Torts: Phys. &\nEmot. Harm § 42 cmt. f (A.L.I. 2012). The Restatement’s commentary further\n\n\n -12-\n\fexplains that “reliance is merely a specific manner of increasing the risk of harm to\nanother.” Id.\n\n When the evidence is viewed in the light most favorable to the Paynes, a\nreasonable jury could conclude that Thomas and Eyerly-Ball placed Jordan in a\nworse position by undertaking to assess and communicate the risk that he would\ncommit suicide and then by failing to adequately do so. Although Jordan was not\non suicide watch (or any other sort of formal monitoring plan), a jury might infer\nthat Weakland had some background level of concern about Jordan’s safety. During\nthe intake process, Jordan responded affirmatively to questions indicating a\nheightened suicide risk. Jordan also requested mental health treatment shortly after\narriving at the jail. Further, Jordan’s mother called the Sheriff’s Department to\nreport that Jordan was “going nuts” and threatening to “chew the veins out of his\narm.” And Jordan explicitly told Weakland that he was “losing it” and needed to\nsee a doctor.\n\n A jury could also reasonably infer that Thomas, by selectively reporting\nJordan’s interview statements, gave Weakland the false impression that Jordan was\nnot at risk—essentially eliminating any concerns that Weakland may have had and\ncausing Weakland to let his guard down. Indeed, Weakland recalled of his\nconversation with Thomas that “there was no concern that Jordan was going to hurt\nhimself.” The increased risk here can be described as the difference between an alert\nand reassured jailer. Or, stated differently, a jury might reasonably infer that\nWeakland elected to forgo more frequent monitoring or other suicide-prevention\nmeasures he might otherwise have engaged in in reliance on Thomas’s off-base\nassessment.\n\n Because there are predicate factual issues going to the scope of Thomas and\nEyerly-Ball’s undertaking and to the issues of increased risk and reliance, we hold\nthat summary judgment was not appropriately granted on the issue of duty. These\npredicate questions are for the jury to resolve in the first instance. See, e.g., Sankey,\n456 N.W.2d at 207 (recognizing that a no-duty grant of summary judgment is proper\n -13-\n\fonly where the facts underlying the claim of duty are undisputed); see also\nRestatement (Third) of Torts: Phys. & Emot. Harm § 42 cmt. d (A.L.I. 2012) (“When\nunderlying facts are in dispute, the question of whether a duty exists must be\nsubmitted to the factfinder with appropriate alternative instructions.”); id. § 42\ncmt. g (“The scope of an undertaking can be determined only from the facts and\ncircumstances of the case. When reasonable minds can differ about whether the risk\nor negligence was within the scope of the undertaking, it is a question of fact for the\nfactfinder.”).\n\n In an attempt to avoid this result, Thomas and Eyerly-Ball rely heavily on the\nIowa Supreme Court’s decision in Jain v. State, 617 N.W.2d 293 (Iowa 2000). But\nin our view, the differences between this case and Jain underscore why summary\njudgment was not appropriately granted here. Jain involved a wrongful death suit\nbrought against the University of Iowa after university student Sanjay Jain\ncommitted suicide in his dorm room. Id. at 294. Two weeks before Jain’s suicide,\nresident assistants at his dorm responded to a reported domestic dispute. Id. at 295.\nThey spoke with Jain’s girlfriend, who stated that Jain was preparing to commit\nsuicide by inhaling exhaust fumes from his moped. Id. The next day, Beth Meritt,\nthe dorm’s hall coordinator, met with Jain, encouraged him to seek counseling, and\ndemanded that he remove the moped from his room. Id. She also gave Jain her\nphone number and urged him to call her if he thought he might hurt himself. Id.\nAnd she discussed the incident with her supervisor, the university’s assistant director\nfor residence life. Id. But nobody from the university advised Jain’s parents that he\nhad attempted to harm himself, and Jain ultimately took his own life by inhaling\nmoped fumes. Id. at 296. Jain’s father sued, contending that the university owed\nJain a duty under § 42’s predecessor section, Restatement (Second) of Torts § 323\n(A.L.I. 1965), because it failed to follow through on an undertaking it had begun\nwhen its staff had responded to Jain’s earlier suicide attempt and referred him to\ncounseling. Id. at 288-99. The Iowa Supreme Court rejected this theory:\n\n Although, in hindsight, plaintiff’s contention carries considerable\n appeal, the duty he seeks to impose upon the university cannot be\n\n -14-\n\f squared with section 323(a) or (b). The record, read in the light most\n favorable to the plaintiff, reveals that Sanjay may have been at risk of\n harming himself. No affirmative action by the defendant’s employees,\n however, increased that risk of self-harm. To the contrary, it is\n undisputed that the RAs appropriately intervened in an\n emotionally-charged situation, offered Sanjay support and\n encouragement, and referred him to counseling. Beth Merritt likewise\n counseled Sanjay to talk things over with his parents, seek professional\n help, and call her at any time, even when she was not at work. She\n sought Sanjay’s permission to contact his parents but he refused. In\n short, no action by university personnel prevented Sanjay from taking\n advantage of the help and encouragement being offered, nor did they\n do anything to prevent him from seeking help on his own accord.\n\n The record is similarly devoid of any proof that Sanjay relied, to his\n detriment, on the services gratuitously offered by these same personnel.\n To the contrary, it appears by all accounts that he failed to follow up on\n recommended counseling or seek the guidance of his parents, as he\n assured the staff he would do.\n\nId. at 299-300.\n\n Here, unlike in Jain, there is evidence that would allow a jury to infer that the\nrelevant undertaking put the deceased in a worse position than he would have been\nin without the undertaking. Had Thomas never met with Jordan and communicated\nto Weakland what may be characterized as an assessment that Jordan would not harm\nhimself in custody, Weakland, having some background indications that Jordan was\nin distress, may have checked up on Jordan more regularly or taken other\nsuicide-prevention measures. Jain involves no such facts. And Jain does not\nmandate a no-duty determination in this case.\n\n Thomas and Eyerly-Ball also argue that Iowa courts recognize a freewheeling\n“control rule” that would preclude a finding of duty here. Their theory is essentially\nthat, because they did not have the formal authority to compel the Madison County\nJail to do or refrain from doing anything in its supervision of Jordan, they cannot be\nheld liable for his death. But the cases Thomas and Eyerly-Ball cite in support of\n -15-\n\fthis theory do not address the duty-based-on-undertaking context. They do not\nsupport the proposition that, where a defendant embarks on an undertaking to\nprovide services for the purpose of reducing a risk of physical harm, but increases\nthat risk of harm by failing to exercise reasonable care or through another’s reliance\non the defendant’s exercising reasonable care, that defendant is somehow immune\nfrom liability. See Lukken v. Fleischer, 962 N.W.2d 71, 77 (Iowa 2021) (concluding\nthat the defendant had no duty of care with respect to a zip-line braking system it\nhad neither designed nor constructed); McCormick v. Nikkel & Assocs., Inc., 819\nN.W.2d 368, 374 (Iowa 2012) (framing cases “involving parties that turn over\ncontrol of premises to another party” as a distinct category of cases where a no-duty\nrule applies); Morris, 958 N.W.2d at 826 (Iowa 2021) (holding that a strip club owed\nno duty to an ejected patron who refused the club’s offer of a cab ride, chose to\ndepart the club’s parking lot on foot, and was killed by a drunk driver half a mile\naway from the club). Thompson and Eyerly-Ball’s cases do not persuade us that,\nunder Iowa law, negligence defendants do not remain responsible for risks within\nthe scope of their activities. See McCormick, 819 N.W.2d at 374 (recognizing that\na contractor performing work on premises may still be held liable for defects in that\nwork).\n\n B.\n\n The Paynes also assert that Thomas and Eyerly-Ball stood in a special\nrelationship with Jordan because they provided mental-health services in a custodial\nsetting and thus owed Jordan a duty in line with the principles of Restatement (Third)\nof Torts: Phys. & Emot. Harm § 40 (A.L.I. 2012).3 While we find that the Paynes\nraised factual issues that preclude summary judgment on their undertaking-based\ntheory of duty, the Paynes’ second theory bears addressing because the types of\nduties potentially in play will inform how the district court must instruct the jury.\nSee Restatement (Third) of Torts: Phys. & Emot. Harm § 40 cmt. e (A.L.I. 2012)\n(recognizing that “[i]f disputed historical facts bear on whether” a special\n\n 3\n The Iowa Supreme Court follows § 40 of the Third Restatement in duty\nanalyses. See, e.g., Morris, 958 N.W.2d at 822, 825-26.\n -16-\n\frelationship of the type recognized in § 40 exists then “the jury should resolve the\nfactual dispute with appropriate alternative instructions”). The Paynes’ § 40 theory\nis not viable. Per § 40:\n\n (a) An actor in a special relationship with another owes the other a duty\n of reasonable care with regard to risks that arise within the scope of the\n relationship.\n\n (b) Special relationships giving rise to the duty provided in Subsection\n (a) include:\n\n ***\n\n (7) a custodian with those in its custody, if:\n\n (a) the custodian is required by law to take custody or\n voluntarily takes custody of the other; and\n\n (b) the custodian has a superior ability to protect the other.\n\nId. §40.\n\n The district court rejected the Paynes’ theory, reasoning that “[t]he ‘custodial’\nrelationship identified by the Restatement may apply to Madison County, but should\nnot be imputed to Eyerly Ball and Thomas who at no point had custody of Jordan.”\nWe agree with the district court’s reasoning. The Paynes do not dispute that Thomas\nand Eyerly-Ball did not have custody over Jordan, and that it was instead Madison\nCounty that did. Thus, the Paynes’ theory is an imprecise fit for the duty § 40\nrecognizes for custodians. But “[c]ourts have not been sympathetic to efforts to\nextend the duty imposed on custodians to others who have a relationship with, say,\na patient, but a noncustodial one.” Restatement (Third) of Torts: Phys. & Emot.\nHarm § 40 reporters’ note cmt. n (A.L.I. 2012). The Paynes cite no case suggesting\nthat an Iowa court would recognize a duty based on a custodial or similar relationship\nhere. And we decline to predict that Iowa courts would do so. Cf. Karas v. Am.\nFamily Ins. Co., 33 F.3d 995, 1000 (8th Cir. 1994) (recognizing that the role of\n -17-\n\ffederal courts adjudicating state-law claims “is to interpret state law . . . and not to\nfashion it”).\n\n III.\n\n Based on the foregoing, we conclude that there are genuine disputes of\nmaterial fact that precluded the district court’s finding that Thomas and Eyerly-Ball\nowed Jordan no undertaking-based duty. We agree with the district court, however,\nthat if Thomas and Eyerly-Ball owed Jordan a duty, it was not a duty based on a\ncustodial relationship as recognized in § 40 of the Third Restatement. We reverse\nthe district court’s grant of summary judgment and remand for further proceedings\nconsistent with this opinion.\n ______________________________\n\n\n\n\n -18-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11236226/", "author_raw": "SHEPHERD, Circuit Judge."}]}	SMITH	GRUENDER	SHEPHERD	1		{"SMITH": ", Circuit", "GRUENDER": ", Circuit", "SHEPHERD": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10769641/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,770,407	United States v. Timothy Kavanagh	2026-01-07	24-2930	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Before SMITH, GRUENDER, and SHEPHERD, Circuit Judges.", "parties": "", "opinions": [{"author": "SMITH, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 24-2930\n ___________________________\n\n United States of America\n\n Plaintiff - Appellee\n\n v.\n\n Timothy Peter Kavanagh\n\n Defendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the Southern District of Iowa - Central\n ____________\n\n Submitted: September 18, 2025\n Filed: January 7, 2026\n ____________\n\nBefore SMITH, GRUENDER, and SHEPHERD, Circuit Judges.\n ____________\n\nSMITH, Circuit Judge.\n\n Timothy Kavanagh was convicted in district court of being a felon in\npossession of a firearm following convictions in two separate state courts for a\nrelated crime. The district court sentenced Kavanaugh to 151 months’ imprisonment\nto run concurrent to any state sentence. The district court, however, did not reduce\nKavanagh’s federal sentence by the time he already served in state custody.\n\fKavanagh now appeals on grounds that the district court did not properly apply the\nSentencing Guidelines. We reverse and remand for resentencing.\n\n I. Background\n Kavanagh, a convicted felon, along with an accomplice burgled a house in\nUnion County, Iowa, while the owners were away. The pair broke into a large gun\nsafe, stealing numerous firearms and much ammunition. They also stole the\nhomeowner’s vehicle from the garage after finding the keys in the house.\n\n Deputies in Madison County identified the vehicle as stolen and initiated a\ntraffic stop. Kavanaugh, the driver, attempted to flee resulting in a chase. He did not\ngo far before he abandoned the vehicle and fled on foot until he was apprehended.\nAfter Kavanagh’s arrest, deputies found 11 firearms taken from the Union County\nburglary, 35 oxycodone pills, and a needle loaded with methamphetamine.\n\n Kavanagh was convicted and sentenced for separate state offenses in both\nUnion and Madison Counties. In Union County, Kavanagh pleaded guilty to\nburglary and second-degree theft and was sentenced to a total of 30 years’\nimprisonment—two consecutive 15-year sentences. In Madison County, Kavanagh\npleaded guilty to eluding, possession of methamphetamines, and possession of\noxycodone and was sentenced to 11 years’ imprisonment to run consecutively to the\nUnion County sentence. Both counties dismissed unlawful-firearms-possession\ncharges leaving those offenses for federal prosecution.\n\n After his state court sentencing, Kavanagh was indicted on a single count of\nbeing a felon in possession of firearms, in violation of 18 U.S.C. §§ 922(g)(1) and\n924(a)(8). He pleaded guilty to this offense without a written plea agreement. The\nprobation office’s presentence report (PSR) identified his sentencing range as 151\nto 180 months.\n\n At sentencing, Kavanagh asked the court to credit him the 17 months and 21\ndays that he had already served in custody for the state offenses given that they were\n -2-\n\frelevant conduct. He also requested that his federal sentence run concurrently with\nthe state terms of imprisonment, pursuant to Sentencing Guideline § 5G1.3.\n\n After considering the § 3553(a) factors, the district court agreed with the\nPSR’s calculated range and imposed a sentence, in its words, “at the very bottom of\nthe [G]uidelines range” to run concurrent to the state court offenses, with three years’\nsupervised release following all sentences. R. Doc. 52, at 16. However, the district\ncourt declined to reduce Kavanagh’s federal sentence based on the time that he\nserved in state custody. Specifically, the district court stated:\n\n I’m not going to do that because I want to make sure there is some\n additional punishment for the fact that this offense involved the\n possession of firearms which wasn’t per se taken into account in the\n state penalties, so you won’t get credit for time served, but it will be up\n to the Bureau of Prisons how your time is measured from here on out.\n\nId. at 17. After declining to apply this portion of § 5G1.3, the district court sentenced\nKavanagh to 151 months’ imprisonment. Kavanagh now appeals his sentence.\n\n II. Discussion\n Did the district court properly apply § 5G1.3 when declining to credit\nKavanagh for his time served in state court when imposing his federal sentence?\n“Whether the court applied this provision correctly is a question of law that we\nreview de novo.” United States v. Winnick, 954 F.3d 1103, 1104 (8th Cir. 2020).\n\n When a federal defendant is subject to an undischarged term of imprisonment,\nthe Sentencing Guidelines direct district courts to (1) “determine whether any time\nspent in custody resulted from relevant conduct to the instant offense of conviction”;\n(2) adjust the sentence downward “[f]or time already spent in custody\nfor solely relevant conduct . . . unless the Bureau of Prisons will otherwise credit it”;\n(3) determine “what to do with time spent in custody for solely non-relevant conduct\nor a mixture of relevant and non-relevant conduct”; and (4) decide whether to grant\na discretional variance. Id. at 1104–05 (citation modified). More succinctly, where\n -3-\n\f“a term of imprisonment resulted from another offense that is relevant conduct to\nthe instant offense,” the district court “shall adjust the sentence for any period of\nimprisonment already served on the undischarged term of imprisonment.” U.S.S.G.\n§ 5G1.3(b)(1).\n\n In Winnick, we emphasized that courts should apply § 5G1.3 and explain any\ndeviations from its imperative. There, instead of accounting for the appropriate\ndownward adjustment based on the time served in state court, the district court chose\nto adjust the sentence based on the time served after the initiation of the federal case.\n954 F.3d at 1104. The district court did not adjust based on the time served for\nrelevant conduct in state court but used a separate rule. Id. We reversed and\nremanded, directing the court to apply § 5G1.3. Id. at 1106.\n\n Later, in United States v. McKenzie, 79 F.4th 924 (8th Cir. 2023), we again\nemphasized the importance of clarity when applying U.S.S.G. § 5G1.3. In McKenzie,\nthe district court was not aware of time the defendant spent in state custody for\nrelevant conduct and, therefore, did not adjust the sentence downward to account for\nthat time. Id. at 926. There, we reversed due to misapplication of U.S.S.G. § 5G1.3\nunder Winnick, which created uncertainty “about exactly how the court arrived at\n[defendant’s] final sentence.” Id. at 927 (quoting Winnick, 954 F.3d at 1106).\n\n Similarly, here, the district court did not apply the § 5G1.3 downward\nadjustment and then use its discretion in imposing its sentence. The sentencing\nrecord is unclear whether Kavanagh’s previous time spent in custody was for\nrelevant conduct, as Winnick requires. The district court treated the conduct as\nrelevant conduct in imposing a concurrent sentence, but when specifically asked to\ngive credit toward Kavanagh’s federal sentence for the time in state custody, the\ndistrict court stated, “I’m not going to do that.” R. Doc. 52, at 17. It then further\nexplained that it wanted to “make sure there is some additional punishment for the\nfact that this offense involved the possession of firearms which wasn’t per se taken\ninto account in the state penalties.” Id. But after considering Kavanagh’s allocution,\n\n\n -4-\n\fthe district court stated that it sought to impose a sentence “at the very bottom of the\n[G]uidelines range.” Id. at 16.\n\n The court’s stated intent to sentence at the bottom of the Guidelines prioritized\nthe accuracy of its Guidelines calculation. Had the district court properly applied the\n§ 5G1.3(b)(1) adjustment, the new sentencing range would be about 134 to 163\nmonths, resulting in 17 fewer months of incarceration. See Mckenzie, 79 F.4th at\n927.\n\n This case differs from the pre-Winnick case, United States v. Carter, 652 F.3d\n894 (8th Cir. 2011). In Carter, the district court recognized the downward\nadjustment but ultimately “determined that a variance from the guidelines was\nappropriate in light of other factors set forth in 18 U.S.C. § 3553(a).” Id. at 896.\nWhile the district court here explained it wanted Kavanagh to incur some additional\npunishment, it still should have recognized the § 5G1.3(b)(1) downward adjustment.\n\n Section 5G1.3(b) requires sentencing courts to first apply the adjustment\nwhere the convictions are for relevant conduct. See Winnick, 954 F.3d at 1106;\nMckenzie, 79 F.4th at 927. The district court has discretion whether to apply the\nadjustment to actions that it finds are not relevant conduct or a combination of\nrelevant and non-relevant conduct. Winnick, 954 F.3d at 1104. But no such discretion\nexists when contemplating an adjustment for time served resulting from relevant\nconduct. Id. Had the district court determined that the state firearm-related conduct\nwas not relevant conduct, then it would have had discretion to decide whether to\ncredit Kavanagh for time served in state custody. Additionally, had the court\nexplicitly applied the adjustment for time served, it could have then still sentenced\nhim to the same term if the facts warranted the variance.\n\n III. Conclusion\n Accordingly, we reverse the district court’s sentence and remand for\nresentencing consistent with this opinion.\n ______________________________\n -5-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11236992/", "author_raw": "SMITH, Circuit Judge."}]}	SMITH	GRUENDER	SHEPHERD	1		{"SMITH": ", Circuit", "GRUENDER": ", Circuit", "SHEPHERD": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10770407/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,770,409	Kevin Karsjens v. Shireen Gandhi	2026-01-07	24-2876	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Before COLLOTON, Chief Judge, LOKEN and BENTON, Circuit Judges.", "parties": "", "opinions": [{"author": "COLLOTON, Chief Judge", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 24-2876\n ___________________________\n\nKevin Scott Karsjens, and all others similarly situated; Kevin John DeVillion, and\n all others similarly situated; Peter Gerard Lonergan, and all others similarly\nsituated; James Matthew Noyer, Sr., and all others similarly situated; James John\nRud, and all others similarly situated; James Allen Barber, and all others similarly\n situated; Craig Allen Bolte, and all others similarly situated; Dennis Richard\n Steiner, and all others similarly situated; Kaine Joseph Braun, and all others\n similarly situated; Christopher John Thuringer, and all others similarly situated;\nKenny S. Daywitt, and all others similarly situated; Bradley Wayne Foster, and all\n others similarly situated; David Leroy Gamble, and all others similarly situated;\n Brian K. Hausfeld, and all others similarly situated,\n\n lllllllllllllllllllllPlaintiffs - Appellees,\n\n v.\n\n Shireen Gandhi; Kevin Moser, in their individual and official capacities; Peter\n Puffer; Ann Zimmerman, in their individual and official capacities; Nancy\n Johnston, in their individual and official capacities; Jannine Hebert, in their\n individual and official capacities,\n\n lllllllllllllllllllllDefendants - Appellants.\n\n ------------------------------\n\nAmerican Civil Liberties Union of Minnesota; Catherine L. Carpenter; Ira Ellman;\n Fredrikson & Byron; Guy P. Hamilton-Smith; Eric Steven Janus; Val Jonas;\n Jeremy Lane; Mid-Minnesota Legal Aid; Adele Nicholas; Tiffany A. Sanders;\n Mark Weinberg; Upper Midwest Law Center; American Civil Liberties Union;\n National Center for Law and Economic Justice; National Health Law Program;\n Center for Public Representation; Western Center on Law and Poverty; Impact\n\fFund; Emily Horowitz; Dorsey & Whitney LLP; Paul Dubbeling; Richard Gladden,\n\n lllllllllllllllllllllAmici on Behalf of Appellee(s).\n ____________\n\n Appeal from United States District Court\n for the District of Minnesota\n ____________\n\n Submitted: October 21, 2025\n Filed: January 7, 2026\n ____________\n\nBefore COLLOTON, Chief Judge, LOKEN and BENTON, Circuit Judges.\n ____________\n\nCOLLOTON, Chief Judge.\n\n The Minnesota Department of Human Services operates the Minnesota Sex\nOffender Program, which treats patients who have been civilly committed under the\nMinnesota Civil Commitment and Treatment Act. Minn. Stat. § 253D. In 2011, a\ngroup of patients in the program brought a class action against state officials on\nbehalf of all patients who were currently civilly committed under the Act. The\nofficials ultimately prevailed on all claims.\n\n This appeal concerns which party should bear the costs of compensating court-\nappointed experts who were retained during the litigation. The federal rules of civil\nprocedure provide that, generally, costs other than attorney’s fees should be allowed\nto the prevailing party. Fed. R. Civ. P. 54(d)(1). Although the state officials\nprevailed in the litigation, the district court ordered them to bear the entire cost of the\ncourt-appointed experts. On this record, we conclude that the officials are entitled to\nrecoup half of the expert fees from the plaintiffs, so we vacate the district court’s\norder and remand with instructions.\n\n -2-\n\f The patients filed this class action pro se, alleging that the sex offender\nprogram failed to provide treatment and employed unconstitutional conditions of\nconfinement. The court granted the patients leave to proceed in forma pauperis.\nThen, at the request of the Minnesota Federal Bar Association’s Pro Se Project,\ncounsel agreed to represent the plaintiffs.\n\n Based on the indigent status of the patients and the importance of expert\nevidence to their claims, the patients moved the court to appoint experts to assist the\npatients under Federal Rule of Evidence 706. Rule 706, entitled “Court-Appointed\nExpert Witnesses,” provides that “the court may order the parties to show cause why\nexpert witnesses should not be appointed and may ask the parties to submit\nnominations.” Fed. R. Evid. 706(a). The court declined to resolve whether Rule\n706 allows the court to appoint experts solely on behalf of the plaintiffs, but\n“acknowledge[d] the need for experts in this case in order to fully and properly\nlitigate the claims at issue.” The court required the parties to nominate experts, and\nthen in December 2013 appointed four experts who were nominated jointly by the\nparties.\n\n Later that month, the parties met and conferred on the allocation of payment\nto the experts. In a letter to the judge, the parties jointly recommended “an allocation\nof 50/50 between plaintiffs and defendants.” Without explanation, however, the court\ninstead ordered that “[w]ithout prejudice to subsequent adjustment, such costs shall\nbe initially allocated to Defendants.”\n\n The state officials ultimately prevailed on all claims after more than a decade\nof litigation. By that point, the experts had generated fees of $732,923.92. The\nofficials filed a bill of costs totaling more than $800,000, and the patients objected.\n\n The district court declined to award any costs to the officials as prevailing\nparties. The court concluded that the plaintiffs “are indigent, they will likely not be\n\n -3-\n\fable to pay these costs in the future, they have brought this action in good faith, the\ncase raised issues of great public importance, the case has been vigorously litigated,\nthe issues were difficult and close, and imposing fees could have a potential chilling\neffect on future litigants.” The officials appeal, and we review the court’s non-award\nof costs for abuse of discretion. In re Derailment Cases, 417 F.3d 840, 844 (8th Cir.\n2005). The officials seek an award of costs against the plaintiffs only; they do not ask\nthe court to tax costs against counsel.\n\n The rules of civil procedure provide that costs “should be allowed to the\nprevailing party,” unless a court order, federal statute, or federal rule directs\notherwise. Fed. R. Civ. P. 54(d)(1). A prevailing party is presumptively entitled to\nrecover costs, and the opposing party must overcome that presumption. Thompson\nv. Kanabec Cnty., 958 F.3d 698, 709 (8th Cir. 2020).\n\n The district court stated that the plaintiffs’ inability to pay was the most\nimportant consideration in declining to award costs to the prevailing parties. The\ncourt cited financial information from the plaintiffs’ applications in 2011 to proceed\nin forma pauperis and determined that there was “no reason for the Court to believe\nthat these numbers have substantially changed.” In an appropriate case, it is within\na court’s discretion to deny costs because a plaintiff is poor. Poe v. John Deere Co.,\n695 F.2d 1103, 1108 (8th Cir. 1982).\n\n In this case, however, the district court did not address a significant factor that\nbears on the assessment of costs. In 2013, two years after the plaintiffs applied to\nproceed in forma pauperis, they jointly recommended to the court that the cost of\nexpert witnesses should be allocated equally between plaintiffs and defendants.\nHaving made this recommendation to the district court, the plaintiffs presumably had\nthe ability, one way or another, to pay their suggested share of the costs. The\nplaintiffs bore the burden of overcoming the presumption that costs should be\nawarded to the prevailing party, and they produced no evidence that the situation had\n\n -4-\n\fchanged since the joint recommendation in 2013. The district court found no reason\nto believe that the patients’ financial situation had changed since 2011, but did not\naddress their willingness to fund half of the expert costs as of 2013. The failure to\nconsider a relevant factor that should have been given significant weight is an abuse\nof discretion. Kern v. TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir. 1984).\n\n The other factors considered by the district court do not justify denying entirely\nan award of costs to the prevailing parties. The court cited the public importance of\nthe issues and the “potential chilling effect” of awarding costs against the plaintiffs.\nWhen deciding on an award of costs, however, there is “no reason to prefer\ncivil-rights plaintiffs over some other class of litigants who have claims based on\nfederal statutes.” Poe, 695 F.2d at 1108. Congress limited the authority of a court\nto tax attorneys’ fees against civil rights plaintiffs but has not “carved out an\nexception to Rule 54(d) relieving a losing civil-rights litigant of the burden of bearing\nthe costs of litigation.” Id.\n\n Even if an award of costs might deter plaintiffs from seeking court-appointed\nexperts in a future action, that does not mean that the state officials should bear the\ncosts. The plaintiffs did not present evidence about an agreement or lack of\nagreement with counsel about responsibility for costs. If there is no such agreement,\nthen perhaps future plaintiffs will insist that their lawyers agree to bear the risk of\npaying costs in an unsuccessful action. But lawyers also have an opportunity to\nbenefit from an award of fees if they are successful, 42 U.S.C. § 1988, and there are\nmechanisms by which attorneys for plaintiffs in civil rights cases manage the risk of\nfailure. See White v. Sundstrand Corp., 256 F.3d 580, 586 (7th Cir. 2001). It is\nunlikely that a partial award of costs in a case like this one will significantly chill\nmeritorious civil rights cases. As for the other factors cited, “[t]he mere fact that the\nlosing party litigated the action in good faith” and that “the case presented close and\ndifficult issues” are not sufficient grounds for denying costs to a prevailing party. 10\nMoore’s Federal Practice § 54.101[1][b] (3d ed. 2025); see, e.g., In re Paoli R.R.\n\n -5-\n\fYard PCB Litig., 221 F.3d 449, 467 (3d Cir. 2000); Pacheco v. Mineta, 448 F.3d 783,\n794 (5th Cir. 2006).\n\n The record shows that the plaintiffs offered in 2013 to accept an allocation of\nhalf the costs attributable to court-appointed experts. The district court did not\nconsider this acknowledged ability to pay, and the plaintiffs presented no evidence\nto establish why the court should not rely on the plaintiffs’ previous offer. The other\nfactors cited are insufficient to rebut the presumption that the prevailing parties are\nentitled to costs.\n\n For these reasons, we vacate the cost judgment, R. Doc. 1219, and remand the\ncase to the district court with directions to award costs in favor of the defendants in\nthe amount of $366,461.96, to be assessed against the named plaintiffs jointly and\nseverally. If it turns out that the judgment is not collectible, then so be it, but the\nprevailing parties are entitled to the judgment under the governing rule on this record.\n ______________________________\n\n\n\n\n -6-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11236994/", "author_raw": "COLLOTON, Chief Judge"}]}	COLLOTON	LOKEN	BENTON	1		{"COLLOTON": ", Chief", "LOKEN": ", Circuit", "BENTON": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10770409/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,771,067	Raymond Kelley v. Chad Pruett	2026-01-08	24-3084	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Before SMITH, GRUENDER, and SHEPHERD, Circuit Judges.", "parties": "", "opinions": [{"author": "SHEPHERD, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 24-3084\n ___________________________\n\n Raymond Kelley\n\n Plaintiff - Appellee\n\n v.\n\n Chad Pruett, Sergeant, Badge No. F8, Faulkner County Sheriff’s Office; Terry\n Roper, Deputy, Faulkner County Sheriff’s Office\n\n Defendants - Appellants\n ____________\n\n Appeal from United States District Court\n for the Eastern District of Arkansas - Central\n ____________\n\n Submitted: September 17, 2025\n Filed: January 8, 2026\n ____________\n\nBefore SMITH, GRUENDER, and SHEPHERD, Circuit Judges.\n ____________\n\nSHEPHERD, Circuit Judge.\n\n Raymond Kelley filed this 42 U.S.C. § 1983 action against two Faulkner\nCounty Sheriff’s Office employees, Sergeant Chad Pruett and Deputy Terry Roper,\nalleging that Pruett and Roper unlawfully arrested Kelley and used excessive force\nduring an encounter on Christmas Day in 2019. Pruett and Roper filed a motion for\nsummary judgment, based, in part, on qualified immunity, which the district court\n\ngranted with respect to the false arrest claim, but denied with respect to the excessive\nforce claim against Pruett and Roper in their individual capacities. Pruett and Roper\nfiled this interlocutory appeal, asserting that the district court erroneously denied\nthem qualified immunity on the excessive force claim. We vacate the district court’s\norder and remand for the district court to reconsider the qualified immunity analysis\nafter construing the disputed facts in the light most favorable to Kelley.\n\n I.\n\n Early in the morning on December 25, 2019, Sergeant Pruett, who was\npatrolling a neighborhood in Conway, Arkansas, observed a white van sitting in a\ndriveway with its lights on and the engine running. Sergeant Pruett continued his\npatrol, but when he returned to the residence and observed the van still in the\ndriveway with its lights on and engine running, he stopped and got out of his patrol\ncar. Sergeant Pruett approached the vehicle and knocked on the window to make\ncontact with the driver, who rolled down the window and identified himself as\nKelley and identified the residence as his own. Sergeant Pruett observed an open\nbeer can in the center console and smelled the odor of alcohol coming from within\nthe vehicle. Sergeant Pruett obtained Kelley’s driver’s license and ran his\ninformation with dispatch, who informed Pruett that Kelley had a previous DUI\nconviction and an active warrant out of Conway County. Sergeant Pruett also\nrequested that dispatch send another unit to the scene. Kelley ultimately exited the\nvehicle and, after Sergeant Pruett patted him down, sat on a low wall on the side of\nthe driveway while Sergeant Pruett was visually inspecting the van. Kelley then\nstood up and asked if he could call his wife; Sergeant Pruett told him to sit down and\nthat he could not call his wife at that time. Instead of sitting back down, however,\nKelley started to run up the driveway. Sergeant Pruett pursued Kelley up the\ndriveway and ultimately tackled him to the ground and gained control of his wrist.\nDeputy Roper arrived on the scene after Sergeant Pruett had tackled Kelley to the\nground and helped Sergeant Pruett secure Kelley and apply handcuffs. Kelley\ncomplained that he suffered an injury to his arm, and Deputy Roper called for\nmedical services. While Kelley was being treated, Sergeant Pruett searched Kelley’s\n -2-\n\ncar and located multiple open beer cans and an ice chest filled with ice and cans of\nbeer. Kelley refused transport to a hospital, and Sergeant Pruett issued to Kelley a\ncitation for Public Intoxication and Resisting or Failure to Submit to Law\nEnforcement. Kelley ultimately signed the citations and was released.\n\n While the parties do not dispute the foregoing, they vigorously dispute several\nadditional facts, primarily as to Kelley’s conduct during the incident, including\nwhether and to what extent Kelley was combative and resistant, and the techniques\nand force used by Sergeant Pruett and Deputy Roper in securing Kelley in handcuffs.\nKelley asserts that he did not resist at any point, that he was never told he was under\narrest, and that Sergeant Pruett used excessive force after tackling Kelley such that,\nwhen Deputy Roper arrived, he stated to Pruett, “man, I thought that you were doing\npushups on him.” Sergeant Pruett and Deputy Roper assert that Kelley was\ncombative and resistant throughout the encounter, that he continued to struggle and\nresist after Sergeant Pruett tackled him to the ground when he tried to flee, and that\nboth Sergeant Pruett and Deputy Roper believed Kelley to be intoxicated. Further,\nSergeant Pruett and Deputy Roper assert that they utilized standard law enforcement\ntechniques in which they had been trained—an arm bar and wrist and elbow locks—\nto secure Kelley’s hands behind his back and place him in handcuffs.\n\n After the incident, Kelley filed this action, asserting claims under 42 U.S.C.\n§ 1983 for unlawful arrest and excessive force against Sergeant Pruett and Deputy\nRoper in both their official and individual capacities. Pruett and Roper filed a motion\nfor summary judgment, asserting that they were entitled to both qualified immunity\nand summary judgment as a matter of law on both of Kelley’s claims. As relevant\nto this appeal, the district court denied qualified immunity on the excessive force\nclaim against Sergeant Roper and Deputy Pruett in their individual capacities. 1 The\n\n\n 1\n The district court granted summary judgment in favor of Sergeant Pruett and\nDeputy Roper as to the official capacity claims, finding that no reasonable juror\ncould conclude that an official policy, custom, or practice caused the application of\nconstitutionally excessive force or an unconstitutional arrest. The district court also\n -3-\n\ndistrict court recounted each party’s version of events, and then described the\nundisputed facts:\n\n [W]hen Deputy Pruett told Mr. Kelley that he could not call his wife at\n that time and needed to remain seated, Mr. Kelley abruptly stood up\n and began to run up the driveway toward his residence. The parties also\n do not dispute that, when Mr. Kelley suddenly fled on foot from Deputy\n Pruett, Deputy Pruett pursued and tackled Mr. Kelley and gained\n control of his wrist. It is undisputed that, after these events, Mr. Kelley\n refused transport by MEMS, which is the ambulance service.\n\nThe district court then discussed the dispute between the parties regarding the\ntechniques Sergeant Pruett and Deputy Roper used on Kelley and to what extent, if\nany, Kelley resisted. The district court concluded:\n\n [T]hese disputed facts preclude the Court from ruling on defendants’\n specific request for qualified immunity under the circumstances.\n Defendants assert that no case has ever held that tackling a fleeing\n suspect, handcuffing the suspect, or utilizing the techniques by which\n these defendants accomplished the handcuffing of Mr. Kelley\n constitutes excessive force. There are disputed fact issues regarding\n “the techniques by which these defendants accomplished the\n handcuffing of Mr. Kelley” and regarding Mr. Kelley’s conduct during\n that period, and these disputed fact issues should be resolved by a jury.\n\nSergeant Pruett and Deputy Roper then filed this interlocutory appeal, challenging\nthe denial of qualified immunity on the excessive force claim.\n\n II.\n\n Sergeant Pruett and Deputy Roper assert that the district court erroneously\ndenied them qualified immunity on the excessive force claim because, even\nconstruing the facts in the light most favorable Kelley, they used legally acceptable\n\ngranted summary judgment to Pruett and Roper on the false arrest claim under both\n§ 1983 and state law. These decisions are not on appeal.\n -4-\n\nforce, and no case has ever prohibited an officer from tackling a fleeing suspect or\nfrom handcuffing a suspect using standard handcuffing techniques. “We review a\ndistrict court’s qualified immunity determination on summary judgment de novo.”\nSterling v. Bd. of Trs. of the Univ. of Ark., 42 F.4th 901, 904 (8th Cir. 2022) (citation\nomitted). While “[w]e ordinarily lack jurisdiction over an interlocutory appeal\nchallenging the denial of a motion for summary judgment, . . . we have jurisdiction\nwhen summary judgment is denied on the issue of qualified immunity.” Id. (citation\nomitted). “[B]ut our jurisdiction is limited. We lack jurisdiction to review ‘whether\nor not the pretrial record sets forth a “genuine” issue of fact for trial.’ Rather, our\njurisdiction allows us to review orders denying qualified immunity to the extent\n‘they resolve a dispute concerning an “abstract issu[e] of law” relating to qualified\nimmunity.’” Watson v. Boyd, 2 F.4th 1106, 1109 (8th Cir. 2021) (second alteration\nin original) (citation omitted).\n\n “At summary judgment, qualified immunity shields a law enforcement officer\nfrom liability in a § 1983 action unless: ‘(1) the facts, viewed in the light most\nfavorable to the plaintiff, demonstrate the deprivation of a constitutional or statutory\nright; and (2) the right was clearly established at the time of the deprivation.’” Stark\nv. Lee Cnty., 993 F.3d 622, 625 (8th Cir. 2021) (citations omitted). “When\nreviewing a law enforcement officer’s entitlement to qualified immunity at summary\njudgment, a district court ‘must take a careful look at the record, determine which\nfacts are genuinely disputed, and then view those facts in a light most favorable to\nthe non-moving party as long as those facts are not so “blatantly contradicted by the\nrecord . . . that no reasonable jury could believe [them].”’” Watson, 2 F.4th at 1110\n(alterations in original) (citation omitted). “Then the court should determine if those\nfacts demonstrate a constitutional violation that is clearly established.” Handt v.\nLynch, 681 F.3d 939, 945 (8th Cir. 2012).\n\n Here, the district court completed the first part of its task in reviewing the\nrecord, but not the second. The district court determined which facts were genuinely\ndisputed, but then, instead of construing those facts in the light most favorable to\nKelley and then setting forth those facts, it merely stated that “[t]here are disputed\n -5-\n\nfact issues . . . , and these disputed fact issues should be resolved by a jury” and\ndenied qualified immunity on that basis. Stopping there, the district court also did\nnot consider the clearly established prong of the qualified immunity analysis.\n“While a district court may address the prongs in any order, it ‘may not deny\nqualified immunity without answering both questions in the plaintiff’s favor.’”\nWatson, 2 F.4th at 1112 (citation omitted). The district court should have identified\nthe disputed facts, construed them in the light most favorable to Kelley, and then\nconsidered, on those facts, whether Kelley had shown a violation of a constitutional\nright that was clearly established at the time of the incident. See Shannon v. Koehler,\n616 F.3d 855, 864 n.5 (8th Cir. 2010) (“When qualified immunity is raised at the\nsummary judgment stage, the proper course is to view the facts and draw reasonable\ninferences in the light most favorable to the plaintiff—which ‘usually means\nadopting . . . the plaintiff’s version of the facts’—and then to assess the\nconstitutionality of the challenged conduct.” (alteration in original) (citation\nomitted)).\n\n “If the district court fails to make a factual finding on an issue relevant to our\npurely legal review, we ‘determine what facts the district court, in the light most\nfavorable to the nonmoving party, likely assumed.’” Walton v. Dawson, 752 F.3d\n1109, 1116 (8th Cir. 2014) (citation omitted). Here, the district court necessarily\nassumed certain allegations by Kelley were plausible and that disputes of fact exist.\n“‘Because qualified immunity is “an immunity from suit rather than a mere defense\nto liability”’ and ‘is effectively lost if a case is erroneously permitted to go to trial,’\nlaw enforcement officers are at least ‘entitled to a thorough determination of their\nclaim of qualified immunity if that immunity is to mean anything at all.’” Watson,\n2 F.4th at 1110 (citation omitted). Accordingly, “[w]hen the district court’s order\nbeing appealed sets forth an analysis insufficient to provide a meaningful basis for\nreview, we have found it necessary to remand the order for a detailed consideration\nof the issue of qualified immunity.” Sterling, 42 F.4th at 904 (citation omitted). We\nthus remand to the district court to allow it to consider both prongs of the qualified\nimmunity analysis after construing the disputed facts in the light most favorable to\nKelley.\n -6-\n\n III.\n\n For the foregoing reasons, we vacate the district court’s order and remand the\ncase for a more detailed consideration of Sergeant Pruett and Deputy Roper’s claim\nto qualified immunity in a manner consistent with this opinion.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11237652/", "author_raw": "SHEPHERD, Circuit Judge."}, {"author": "SMITH, Circuit Judge, dissenting", "type": "dissent", "text": "SMITH, Circuit Judge, dissenting.\n\n The majority concludes that this case should be remanded to the district court\nto determine what facts are in genuine dispute. I would not remand this case but\nwould affirm the district court’s denial of qualified immunity. The record reveals\nthat the principal fact disputes are the level of force used by the officers in arresting\nKelley and whether Kelley resisted that arrest. The district court concluded that it\ncould not determine (1) “what techniques Deputies Pruett and Roper used during the\narrest” nor (2) “whether, and if so to what extent, Mr. Kelley resisted arrest once Mr.\nKelley stopped retreating up his driveway.” Kelley alleged sufficient force to be\nexcessive if Kelley were not resisting as he alleged and where the arresting officer\napplied the techniques that Kelley alleged, and using the force suggested by the\nobserving officer’s alleged statement (that the arresting officer was “doing pushups”\non Kelley). The district court determined that a jury should resolve the technique\nand force-used disputes. I agree and would affirm. If the alleged force is assumed to\nbe true against a non-resisting arrestee, the clearly established requirement would be\nmet. Graham v. Connor, 490 U.S. 386 (1989); Neal v. Ficcadenti, 895 F.3d 576, 582\n(8th Cir. 2018). I therefore respectfully dissent.\n ______________________________\n\n\n\n\n -7-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11237652/", "author_raw": "SMITH, Circuit Judge, dissenting"}]}	SMITH	GRUENDER	SHEPHERD	1		{"SMITH": ", Circuit", "GRUENDER": ", Circuit", "SHEPHERD": ", Circuit"}	2	1	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10771067/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,772,463	Abrahim Fofana v. Kristi Noem	2026-01-09	24-2485	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Before COLLOTON, Chief Judge, LOKEN and BENTON, Circuit Judges.", "parties": "", "opinions": [{"author": "COLLOTON, Chief Judge", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 24-2485\n ___________________________\n\n Abrahim Mohamed Fofana,\n\n lllllllllllllllllllllPlaintiff - Appellee,\n\n v.\n\nKristi Noem, in her official capacity as Secretary of the United States Department\nof Homeland Security; Angelica Alfonso-Royals, in her official capacity as Acting\n Director of the United States Citizenship and Immigration Services; Connie\n Nolan, in her official capacity as Associate Director, Service Center Operations,\n United States Citizenship and Immigration Services; Steven G. Rice, Director,\n Minneapolis St Paul Field Office, U.S. Citizenship and Immigration Services;\n United States Citizenship and Immigration Service,\n\n lllllllllllllllllllllDefendants - Appellants.\n ____________\n\n Appeal from United States District Court\n for the District of Minnesota\n ____________\n\n Submitted: October 21, 2025\n Filed: January 9, 2026\n ____________\n\nBefore COLLOTON, Chief Judge, LOKEN and BENTON, Circuit Judges.\n ____________\n\fCOLLOTON, Chief Judge.\n\n Abrahim Fofana, a native and citizen of Liberia, sued the Secretary of\nHomeland Security and others to challenge the denial of his application for\nadjustment of status to lawful permanent resident. The district court concluded that\nthe government’s action was arbitrary and capricious, and granted summary judgment\nfor Fofana. We conclude that the district court lacked jurisdiction to review the\nSecretary’s decision, so we reverse the judgment.\n\n I.\n\n Fofana tried to enter the United States with fraudulent documents on January\n28, 2001. When he later applied for asylum, Fofana disclosed that he had raised\nmoney for the United Liberation Movement of Liberia for Democracy (ULIMO)\nwhile he was a student in Saudi Arabia, and that he was “an active supporter of the\nULIMO fighters.” Fofana claimed that if he returned to Liberia, he would face\npersecution on account of his affiliation with ULIMO. In April 2001, an immigration\njudge granted the application for asylum.\n\n On July 22, 2002, Fofana filed an application for adjustment of status to\nbecome a lawful permanent resident. The Secretary of Homeland Security may, in\nher discretion, adjust the status of an alien granted asylum if the alien meets five\nstatutory criteria, including that the alien “is admissible . . . as an immigrant.” 8\nU.S.C. § 1159(b). The United States Citizenship and Immigration Services, acting\nfor the Secretary, denied the application in June 2018. The USCIS determined that\nFofana was inadmissible because he had solicited money for ULIMO, a Tier III\nterrorist organization. See 8 U.S.C. § 1182(a)(3)(B)(i)(I), (a)(3)(B)(iv)(IV)(cc).\n\n Fofana sued in the district court, alleging that the USCIS was precluded from\ndeclaring him inadmissible and that the agency’s decision was arbitrary and\n\n -2-\n\fcapricious. The district court ruled for Fofana based on collateral estoppel, but this\ncourt reversed and remanded. Fofana v. Mayorkas, 4 F.4th 668 (8th Cir. 2021).\n\n On remand, the district court again granted summary judgment for Fofana.\nFirst, the district court rejected the government’s argument that the court lacked\njurisdiction to review the Secretary’s decision. Second, the court concluded that\nFofana was not inadmissible for “engag[ing] in a terrorist activity,” even though\nsoliciting funds for a terrorist organization is defined as “engag[ing] in terrorist\nactivity,” because a separate definition of “terrorist activity” does not encompass\nsolicitation of funds. See 8 U.S.C. § 1182(a)(3)(B)(i)(I), 1182(a)(3)(B)(iii). Third,\nthe court concluded alternatively that the agency’s determination that ULIMO was\na terrorist organization was arbitrary and capricious because the agency did not\naddress whether the organization’s violent activities were authorized by its\nleadership. As a final alternative, the district court concluded that the record did not\nsupport the agency’s finding that Fofana knew or should have known that ULIMO\nwas engaged in terrorist activity. The court thus ordered the case returned to the\nUSCIS for reconsideration.\n\n II.\n\n On appeal, the government argues that the district court lacked jurisdiction to\nreview the Secretary’s decision on whether Fofana is inadmissible. Congress has\ncircumscribed judicial review of the discretionary-relief process in immigration cases.\nThe governing jurisdictional statute provides:\n\n Notwithstanding any other provision of law . . . no court shall have\n jurisdiction to review--\n\n (i) any judgment regarding the granting of relief under section 1182(h),\n 1182(i), 1229b, 1229c, or 1255 of this title, or\n\n -3-\n\f (ii) any other decision or action of the Attorney General or the Secretary\n of Homeland Security the authority for which is specified under this\n subchapter to be in the discretion of the Attorney General or the\n Secretary of Homeland Security, other than the granting of relief under\n section 1158(a) of this title.\n\n8 U.S.C. § 1252(a)(2)(B) (emphasis added).\n\n Clause (ii) is at issue in this case. The statute governing Fofana’s application\nfor adjustment of status provides that “[t]he Secretary of Homeland Security or the\nAttorney General, in the Secretary’s or the Attorney General’s discretion and under\nsuch regulations as the Secretary or Attorney General may prescribe, may adjust to\nthe status of an alien lawfully admitted for permanent residence the status of any alien\ngranted asylum.” 8 U.S.C. § 1159(b) (emphasis added).\n\n Fofana acknowledges that clause (ii) precludes judicial review of the\nSecretary’s ultimate discretionary decision to deny an adjustment of status. He\nmaintains, however, that § 1159(b) contemplates a two-step process under which the\nSecretary first makes a non-discretionary determination about whether the alien has\nsatisfied the five eligibility criteria for adjustment, and then makes a discretionary\ndecision whether to adjust the alien’s status. On his view, the court has jurisdiction\nto review the first determination and lacks jurisdiction only with respect to the\nsecond.\n\n The Supreme Court has not resolved this question, see Bouarfa v. Mayorkas,\n604 U.S. 6, 19 (2024), but the decision in Patel v. Garland, 596 U.S. 328, 336 (2022),\nis enlightening. The Court held that the phrase “any judgment regarding the granting\nof relief” under § 1255 in clause (i) applies not only to the ultimate judgment to grant\nor deny relief, but also to nondiscretionary determinations that are necessary in\ndetermining whether an applicant is eligible for relief. Id. at 338-39. The breadth of\n\n -4-\n\fthe term “any” shows that the phrase “any judgment” means “judgments of whatever\nkind under § 1255, not just discretionary judgments or the last-in-time judgment.”\nId. at 338.\n\n Patel concerned clause (i), but the analysis informs the meaning of clause (ii).\nClause (i) enumerates certain decisions that are insulated from judicial review, and\n“Congress added in clause (ii) a catchall provision covering ‘any other decision . . .\nthe authority for which is specified under this subchapter [to be in the discretion of\nthe Secretary].’” Kucana v. Holder, 558 U.S. 233, 246 (2010). “The proximity of\nclauses (i) and (ii), and the words linking them—‘any other decision’—suggests that\nCongress had in mind decisions of the same genre, i.e., those made discretionary by\nlegislation.” Id. at 246-47. “The clause (i) enumeration . . . is instructive in\ndetermining the meaning of the clause (ii) catchall.” Id. at 247.\n\n Fofana argues that while Congress broadly precluded judicial review of “any\njudgment”—discretionary or non-discretionary—regarding the granting of relief\nunder the sections enumerated in clause (i), the catchall reference to “any other\ndecision or action” in clause (ii) refers only to discretionary decisions or actions.\nThis contention is unpersuasive. We agree with Judge Liman that the phrase “any\nother decision or action” is at least as broad as “any judgment.” Morina v. Mayorkas,\nNo. 22-cv-02994, 2023 WL 22617, at *10 (S.D.N.Y. Jan. 3, 2023). “Any judgment”\nmeans “judgments of whatever kind,” Patel, 596 U.S. at 338, and “any other\ndecision” thus naturally means decisions “of whatever kind”—not just discretionary\ndecisions or last-in-time decisions. The authority for the decision whether to adjust\nFofana’s status is “specified under [the] subchapter to be in the discretion of . . . the\nSecretary,” 8 U.S.C. § 1252(a)(2)(B)(ii), so the entire decision whether to adjust\nstatus—including the decision on whether Fofana is eligible—is insulated from\njudicial review.\n\n\n\n\n -5-\n\f Fofana argues that clause (ii) is narrower because it does not employ the\nbroadening effect of the word “regarding” that is used in clause (i). The Court in\nPatel concluded that because clause (i) refers to any judgment “regarding” the\ngranting of relief under certain sections, the clause “encompasses not just ‘the\ngranting of relief’ but also any judgment relating to the granting of relief.” 596 U.S.\nat 339.\n\n Clause (ii) is not narrower; it is just phrased differently. Clause (i) uses the\nphrase “regarding the granting of relief” to define the type of judgment that is not\nreviewable. Clause (ii) specifies in a different manner the type of decision or action\nthat is not reviewable—a decision or action “the authority for which is specified\nunder this subchapter to be in the discretion of the Attorney General or the Secretary\nof Homeland Security.” Where, as with adjustment of status, the statute specifies that\nthe authority to grant relief is in the discretion of the Secretary, clause (ii) insulates\nthe decision from judicial review. Patel establishes that the unreviewable\ndecision—“any decision,” like “any judgment”—is not limited to a final discretionary\ndecision but includes the Secretary’s decision on all aspects of the application for\nadjustment. See id. As with clause (i), if Congress intended to limit the jurisdictional\nbar in clause (ii) to “discretionary decisions,” then “it could easily have used that\nlanguage—as it did elsewhere in the immigration code.” Id. at 341.\n\n Fofana points to Bremer v. Johnson, 834 F.3d 925 (8th Cir. 2016), where this\ncourt cited prior circuit authority and said that “[e]ven where a statute precludes\njudicial review of discretionary agency actions, courts may review certain\nnon-discretionary legal determinations that underlie an agency’s exercise of\nunreviewable discretion.” Id. at 929 (citing Ibrahimi v. Holder, 566 F.3d 758, 763-64\n(8th Cir. 2009) and Guled v. Mukasey, 515 F.3d 872, 880 (8th Cir. 2008)). Bremer\nconcerned a provision of the Adam Walsh Act that says a citizen generally “may file”\na petition seeking immediate relative status for a spouse. 8 U.S.C. § 1154(a)(1)(A)(i).\nThat clause and the right to file a petition, however, “shall not apply to a citizen of\n\n -6-\n\fthe United States who has been convicted of a specified offense against a minor,\nunless the Secretary of Homeland Security, in the Secretary’s sole and unreviewable\ndiscretion, determines that the citizen poses no risk to the alien with respect to whom\na petition described in clause (i) is filed.” Id. § 1154(a)(1)(A)(viii). This court held\nthat the district court had jurisdiction to resolve whether the Act and its conferral of\na right to file a petition applied at all to Bremer’s petition or whether it was\ninapplicable because a petition already had been filed. 834 F.3d at 929.\n\n Bremer is not controlling here, because the “predicate legal question” at issue\nin that case did not concern a “decision” by the Secretary to allow or disallow the\nfiling of a petition under § 1154(a)(1)(A)(i). The disputed issue was whether the fact\nthat a petition already had been filed meant that there was no decision for the\nSecretary to make. Insofar as prior decisions or language in Bremer regarding\njurisdiction to make “non-discretionary legal determinations” suggested a broader\ndeclaration, we clarify here the proper analysis in light of the Supreme Court’s\nintervening decision in Patel.\n\n For these reasons, the judgment of the district court is reversed, and the case\nis remanded with directions to dismiss the complaint for lack of jurisdiction.\n ______________________________\n\n\n\n\n -7-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11239048/", "author_raw": "COLLOTON, Chief Judge"}]}	COLLOTON	LOKEN	BENTON	1		{"COLLOTON": ", Chief", "LOKEN": ", Circuit", "BENTON": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10772463/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,773,222	Choreo, LLC v. Kevin Lors	2026-01-12	25-1706	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Before LOKEN, KELLY, and ERICKSON, Circuit Judges.", "parties": "", "opinions": [{"author": "LOKEN, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 25-1706\n ___________________________\n\n Choreo, LLC\n\n lllllllllllllllllllllPlaintiff - Appellee\n\n v.\n\n Kevin Lors; Aaron Schomer; Joleen Scheer; Lindsey O’Neil; Atomi Financial\n Group, Inc., doing business as Compound Planning\n\n lllllllllllllllllllllDefendants - Appellants\n ____________\n\n Appeal from United States District Court\n for the Southern District of Iowa - Central\n ____________\n\n Submitted: September 17, 2025\n Filed: January 12, 2026\n ____________\n\nBefore LOKEN, KELLY, and ERICKSON, Circuit Judges.\n ____________\n\nLOKEN, Circuit Judge.\n\n In January 2025, Appellants Kevin Lors, Aaron Schomer, Joleen Scheer, and\nLindsey O’Neil (“Four Advisors”) resigned as senior financial advisors at the Des\nMoines branch of Choreo, LLC, a national investment advisory firm, and joined\nAppellant Atomi Financial Group, Inc., a competing investment advisory firm doing\nbusiness as Compound Planning (“Compound”) that was opening a new office in Des\n\fMoines. A few weeks after the Four Advisors left, eight of the nine remaining\nChoreo financial advisors in Des Moines resigned in unison and joined Compound,\nwhich paid them lavish incentives to continue serving their former clients despite\nrestrictive covenants in the Four Advisors’ employment contract with Choreo.\n\n Choreo quickly filed this lawsuit, alleging breach of three restrictive covenants\nby the Four Advisors, tortious interference with contract by Compound, and theft of\ntrade secrets under federal and Iowa law by all Defendants. The district court granted\nChoreo’s motion and entered a sweeping preliminary injunction. Defendants appeal.\nWe have jurisdiction to review an interlocutory order granting a preliminary\ninjunction. 28 U.S.C. § 1292(a)(1).\n\n “The basis of injunctive relief in the federal courts has always been irreparable\nharm and inadequacy of legal remedies.” Beacon Theatres, Inc. v. Westover, 359\nU.S. 500, 506-07 (1959). The Supreme Court’s “frequently reiterated standard\nrequires plaintiffs seeking preliminary injunctive relief to demonstrate that irreparable\ninjury is likely in the absence of an injunction.” Winter v. Nat. Res. Def. Council, 555\nU.S. 7, 22 (2008) (citations omitted; emphasis in original); see Sessler v. City of\nDavenport, 990 F.3d 1150, 1156 (8th Cir. 2021). “Irreparable harm occurs when a\nparty has no adequate remedy at law, typically because its injuries cannot be fully\ncompensated through an award of damages.” Gen. Motors Corp. v. Harry Brown’s,\nLLC, 563 F.3d 312, 319 (8th Cir. 2009).\n\n Here, the district court concluded that “[t]he coordinated departure of all senior\nwealth advisors, followed by the near-simultaneous resignation of the remaining eight\ninvestment advisors, has effectively decimated Choreo’s Des Moines office, leaving\nthe firm without the human capital necessary to maintain client relationships and\ndeliver its services.” We conclude the preliminary injunction record falls short of the\nshowing required to establish that Choreo’s alleged injuries cannot be compensated\nby an award of damages for Defendants’ alleged breach of contract and tortious\n\n -2-\n\finterference absent extraordinary preliminary injunctive relief. Accordingly, we\nvacate the preliminary injunction and remand for further proceedings.\n\n I. Background\n\n In 2022, a large private equity firm purchased Choreo, raised client fees, and\nreduced advisor compensation, causing about a third of the office’s financial advisors\nto leave over the next few years. The Four Advisors resigned in January 2025,\neffective February 2025. Their Choreo employment contract contained three one-to-\ntwo-year restrictive covenants:\n\n 1. “I will not . . . directly . . . or indirectly . . . solicit, divert, take away\n or conduct any financial planning . . . with . . . any of [Choreo’s] clients,\n customers or accounts” (the “No-Service/No-Solicitation” covenant).\n “Clients, customers or accounts” is defined as any clients the Four\n Advisors serviced or gained business information about in the last two\n years (“Covered Clients”).\n\n 2. “I shall not . . . directly or indirectly . . . use or disclose to any party\n other than [Choreo] and its affiliates any trades secrets or other\n Confidential Information that I learned or obtained while an employee\n of [Choreo]” (the “No-Disclosure” covenant).\n\n 3. “I will not directly or indirectly solicit, attempt to solicit, or in any\n manner encourage any employee of [Choreo] to leave [Choreo]” (the\n “No-Recruitment” covenant). This covenant applied while the Four\n Advisors were still employed at Choreo and prohibited them from aiding\n anyone else in offering employment to Choreo’s employees.\n\nA few weeks after the Four Advisors left, eight of the nine remaining Choreo\nfinancial advisors resigned in unison and joined Compound. The Four Advisors also\ntook three allegedly solicitous actions directed at Covered Clients. First, contrary to\nChoreo’s instruction that it would handle the client transition process, they sent\n\n -3-\n\fformer clients an email stating: “I’m writing to inform you that I have left Choreo,\nand since I have left the firm I am no longer servicing your accounts. My registered\ncontact information at my new firm is below should you have any questions.” Choreo\ninformed Covered Clients of the Four Advisors’ departure prior to their resignation\nbecoming effective, but they did not tell clients where the Four Advisors had gone.\nSecond, when one Covered Client contacted Lors for information, Lors responded\nwith Compound’s website, fee schedule, and two PDFs about how to transition.\nThird, each Advisor made posts on LinkedIn about their transition to Compound.\n\n Within two weeks after the Four Advisors departed, Choreo’s Des Moines\nbranch lost over 100 clients to Compound representing $400 million in assets under\nmanagement, approximately one-third of the branch’s total business. The Four\nAdvisors continued serving as financial advisors to the Covered Clients who switched\nto Compound. Defendants do not dispute that this violated the No-Service\nprovisions. Rather, they contest this covenant’s enforceability.\n\n Choreo quickly filed suit and requested a temporary restraining order, which\nthe district court denied for lack of a showing of immediate irreparable injury.\nChoreo then moved for a preliminary injunction which the district court granted,\nproperly looking to the four Dataphase factors in determining whether to grant a\npreliminary injunction set forth in our controlling decision in Dataphase Sys., Inc. v.\nC L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981). The injunction bars the Four\nAdvisors from servicing the Covered Client accounts, providing any information\nabout their new employment to Covered Clients, using Choreo’s confidential\ninformation for any purpose, and encouraging any employee of Choreo to quit during\nthe period each restrictive covenant is in effect. It also bars Compound from using\nChoreo’s confidential information or interfering with any Choreo employment\nagreements. Defendants timely appealed. The district court and this court denied\ntheir motions to stay the injunction pending appeal.\n\n\n\n -4-\n\f II. Discussion\n\n “We review the district court’s decision to grant a preliminary injunction for\nabuse of discretion, with factual findings examined for clear error and legal\nconclusions considered de novo.” Sleep No. Corp. v. Young, 33 F.4th 1012, 1016\n(8th Cir. 2022) (quotations omitted). Preliminary injunctive relief is “an\nextraordinary remedy that may only be awarded upon a clear showing that the\nplaintiff is entitled to such relief.” Winter, 555 U.S. at 22 (citation omitted). We\nconsider four factors in determining whether to grant a preliminary injunction: “(1)\nthe threat of irreparable harm to the movant; (2) the state of balance between this\nharm and the injury that granting the injunction will inflict on other parties litigant;\n(3) the probability that movant will succeed on the merits; and (4) the public interest.”\nDataphase, 640 F.2d at 114.\n\n We begin with the irreparable harm factor because “[t]he failure of a movant\nto show irreparable harm is an ‘independently sufficient basis upon which to deny a\npreliminary injunction.’” Sessler, 990 F.3d at 1156 (quotation omitted). To show\nirreparable harm, “a party must show that the harm is certain and great and of such\nimminence that there is a clear and present need for equitable relief.” Dakotans for\nHealth v. Noem, 52 F.4th 381, 392 (8th Cir. 2022). The party seeking preliminary\ninjunctive relief must show a likelihood of irreparable harm in the future. Sessler,\n990 F.3d at 1156. The failure to show irreparable harm is, by itself, a sufficient basis\nto deny a preliminary injunction. Gelco Corp. v. Coniston Partners, 811 F.2d 414,\n418 (8th Cir. 1987).\n\n The district court’s finding of irreparable harm is based on (1) Choreo’s further\nloss of customer relationships from Compound’s ongoing client poaching and (2) the\ndestruction of Choreo’s Des Moines branch resulting from Defendants’ violations of\nthe No-Recruitment provision. We conclude this does not meet the required showing.\n\n\n\n -5-\n\f (1) We have held that the permanent loss of customer goodwill can constitute\nirreparable injury. Iowa Utils. Bd. v. FCC, 109 F.3d 418, 426 (8th Cir. 1996). But\nnothing in the record demonstrates irreparable harm will occur absent preliminary\ninjunctive relief in this case. “Economic loss, on its own, is not an irreparable injury\nso long as the losses can be recovered.” Wildhawk Invs., LLC v. Brava I.P., LLC, 27\nF.4th 587, 597 (8th Cir. 2022). Choreo charges clients a percentage fee based on the\nsize of their account. Both the amount of assets attributable to the allegedly stolen\nclients and Choreo’s fee table are in the record. From this data and the evidence\ndeveloped at summary judgment or after trial on the merits of Choreo’s claims, the\ncourt can determine or reliably estimate the annual fees Choreo would receive from\nclients Compound poached. Indeed, the district court referred to financial harm from\nthe loss of clients as “calculable.” True, this calculation might not account for\nincidental benefits of client relationships such as referrals. But the financial harm\nfrom lost client revenues will not be so uncertain that it renders the damages\nincalculable and therefore irreparable. See Washington Tr. Advisors, Inc. v. Arnold,\n646 F. Supp. 3d 210, 221 (D. Mass. 2022) (“the financial services industry is uniquely\nskilled at computing the economic value of a given client.”).\n\n For example, in MPAY Inc. v. Erie Custom Comp. Apps., Inc., 970 F.3d 1010\n(8th Cir. 2020), we rejected plaintiff’s argument that financial harm from losing\ncustomers is incalculable and therefore irreparable, noting that the estimate in the\nrecord of $580,000 in lost annual fees from those customers demonstrated that the\nlost profits were quantifiable. Like Choreo, plaintiff argued that the amorphous loss\nof goodwill and reputation was irreparable harm supporting preliminary injunctive\nrelief. We rejected this argument as uncorroborated and therefore too speculative to\nestablish irreparable harm and affirmed the denial of a preliminary injunction.\nSimilarly in Mgmt. Registry, Inc. v. A.W. Cos., 920 F.3d 1181, 1183 (8th Cir. 2019),\nwe found that plaintiff had a potentially viable damages theory from the loss of\ngoodwill but the little evidence in the preliminary injunction record cut against a\nfinding of incalculability, as the plaintiff had estimated lost revenues to be $65,000\n\n -6-\n\fper week. In both cases, as here, the plaintiff did not persuasively explain why the\nestimated money damages did not adequately compensate them for their losses.\n\n Choreo argues that declarations by two of its employees adequately explain\nwhy its alleged harm from loss of goodwill is incalculable. But the declarations are\nconclusory, stating Choreo has lost client goodwill and the resulting harm is\nincalculable, but not explaining why the loss defies calculation. The employees assert\nthat “[t]he departure of these clients has destabilized Choreo’s business by\nundermining the notion that these client relationships belong to Choreo.” But if\nactionable, the client fees lost because Defendants’ conduct made clients willing to\nfollow their existing investment advisors to Compound is calculable.\n\n (2) Choreo argues it was irreparably harmed when Defendants’ allegedly\nwrongful conduct left its Des Moines office with just one employee and unable to\nserve its remaining customers. The fatal problem with this argument is that even if\nthis harm is irreparable, it has already happened and will not be remedied by the\npreliminary injunction. When Choreo filed this action, it requested injunctive relief\npreventing the eight employees who had not left from leaving. The district court\ndenied that relief. All but one of Choreo’s Des Moines investment advisors had left\nwhen the district court granted the preliminary injunction. There is no evidence in\nthe record that Defendants did or will attempt to recruit the remaining employee.\nTherefore, future harm resulting from Choreo’s understaffing will occur with or\nwithout a preliminary injunction and cannot provide the basis for preliminary\nequitable relief. Whether a permanent injunction will be appropriate equitable relief\nto prevent future irreparable harm will depend in large part on future events such as\nChoreo’s success assuming it intends to maintain a branch office in Des Moines.\n\n In sum, because the preliminary injunction does not prevent irreparable harm\nthat cannot be calculated and remedied after a determination of Choreo’s breach of\ncontract and tortious interference claims on the merits, the district court abused its\n\n -7-\n\fdiscretion in granting it. Accordingly, we vacate the district court’s order granting\npreliminary injunctive relief and remand for further proceedings consistent with this\nopinion.\n ______________________________\n\n\n\n\n -8-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11239807/", "author_raw": "LOKEN, Circuit Judge."}]}	LOKEN	KELLY	ERICKSON	1		{"LOKEN": ", Circuit", "KELLY": ", Circuit", "ERICKSON": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10773222/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,773,789	Tina Hight v. Brian Williams	2026-01-13	24-2998	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Before COLLOTON, Chief Judge, ERICKSON and STRAS, Circuit Judges.", "parties": "", "opinions": [{"author": "STRAS, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 24-2998\n ___________________________\n\n Tina Hight\n\n Plaintiff - Appellant\n\n v.\n\n Deputy Brian Williams; Columbia County Sheriff’s Department; Sheriff Mike\n Loe, Columbia County\n\n Defendants - Appellees\n ____________\n\n Appeal from United States District Court\n for the Western District of Arkansas - El Dorado\n ____________\n\n Submitted: September 18, 2025\n Filed: January 13, 2026\n ____________\n\nBefore COLLOTON, Chief Judge, ERICKSON and STRAS, Circuit Judges.\n ____________\n\nSTRAS, Circuit Judge.\n\n When an officer fires at a dog, is there a seizure of the dog’s owner when the\nstray bullet hits her instead? We conclude the answer is no.\n\n I.\n\n Deputy Brian Williams and his partner responded to a domestic-violence call\nat Tina Hight’s home. Williams stayed back in the yard while his partner walked\nonto the front porch and knocked on the door. When Hight opened it, two dogs ran\nout toward Williams. Startled, he screamed, “Get back! Get your dog! I’ll kill that\nmotherfucker! Get your goddamn dog!” He then fired a warning shot, which caused\nthe dogs to retreat.\n\n As Hight was trying to get them inside, another one, a 9-pound Pomeranian\nmix, ran out the door and raced toward Deputy Williams. After shouting, “Get\nback!” he fired again, this time at the dog. He missed, but then heard Hight scream,\n“He shot me!” Apparently, it had ricocheted and hit her, leaving a bullet fragment\nlodged in her leg.\n\n Hight sued Deputy Williams for, among other things, excessive force. See 42\nU.S.C. § 1983; U.S. Const. amends. IV, XIV. At summary judgment, the district\ncourt1 granted qualified immunity. The question for us is whether, on these facts, it\nshould have.\n\n II.\n\n We review the grant of summary judgment de novo, viewing the record in the\nlight most favorable to Hight and drawing all reasonable inferences in her favor. See\nCartia v. Beeman, 122 F.4th 1036, 1040 (8th Cir. 2024). Whether Deputy Williams\nis entitled to qualified immunity depends on the answers to two questions. First, did\nhe violate a constitutional right? Second, was that constitutional right clearly\nestablished at the time he acted? See Fisherman v. Launderville, 100 F.4th 978, 980\n\n\n\n 1\n The Honorable Susan O. Hickey, then Chief Judge, now United States\nDistrict Judge for the Western District of Arkansas.\n -2-\n\n(8th Cir. 2024). If the answer to either question is no, then it applies. See id. In this\ncase, we never get past the first step.\n\n A.\n\n Under the Fourth Amendment, which prohibits “unreasonable searches and\nseizures,” U.S. Const. amend. IV, officers cannot use excessive force to “restrain[]\nthe liberty of a citizen,” Graham v. Connor, 490 U.S. 386, 395 n.10 (1989) (citation\nomitted). The “threshold” inquiry here is whether Deputy Williams seized Hight\nwhen the second shot he fired hit her. Dundon v. Kirchmeier, 85 F.4th 1250, 1255\n(8th Cir. 2023). Only if the answer is yes will we assess the reasonableness of his\nactions.\n\n To seize someone by force, an officer must act “with intent to restrain.”\nTorres v. Madrid, 592 U.S. 306, 317 (2021). Accidental force, like a police dog\nbiting someone “spontaneous[ly],” does not meet this requirement. Whitworth v.\nKling, 90 F.4th 1215, 1218 (8th Cir. 2024); see also County of Sacramento v. Lewis,\n523 U.S. 833, 837, 843–44 (1998) (determining that no seizure occurred when an\nofficer accidentally “skidded into” someone who had fallen off a motorcycle he was\npursuing). Neither does “force intentionally applied for some other purpose,” like\n“[a] tap on the shoulder to get [some]one’s attention.” Torres, 592 U.S. at 317.\n\n Which category an officer’s conduct falls into depends on “whether [it]\nobjectively manifest[ed] an intent to restrain.” Id.; see Brendlin v. California, 551\nU.S. 249, 260 (2007) (remarking that it has “repeatedly rejected attempts to\nintroduce . . . into Fourth Amendment analysis” an inquiry into “the motive of the\npolice for taking the intentional action”). The test focuses on what the officer\ncommunicated through his actions, not what he subjectively thought. See Torres,\n592 U.S. at 317; Atkinson v. City of Mountain View, 709 F.3d 1201, 1208 (8th Cir.\n2013) (“Whether physical force was intentionally applied is determined by the\nofficer’s objective behavior, not his subjective motive.” (citation omitted)). Intent\nmatters, in other words, but only to the extent it “has been conveyed” to others. Irish\n -3-\n\nv. McNamara, 108 F.4th 715, 719 (8th Cir. 2024) (quoting Michigan v. Chesternut,\n486 U.S. 567, 575 n.7 (1988)).\n\n The undisputed facts in this case all point to the absence of a seizure. See\nUnitedHealth Grp. Inc. v. Wilmington Tr. Co., 548 F.3d 1124, 1127–28 (8th Cir.\n2008) (reviewing de novo the “purely legal questions” left by the “undisputed”\nfacts). Perhaps the most important one is that, as Hight concedes, “Deputy Williams\nfired his county[-]issued service weapon at [the] Pomeranian.” His words matched\nhis actions, given that each of his statements was about getting the dogs under\ncontrol, including ordering them to “get back!” And finally, the bodycam video\nshows that he fired downward toward the dog as it approached, which supports the\nconclusion that it was his target, not Hight. Hitting her was an unfortunate accident.\nSee Brower v. County of Inyo, 489 U.S. 593, 596 (1989) (explaining that the Fourth\nAmendment does not address “the accidental effects of . . . government conduct”).\n\n To be sure, we have stopped just short of fully embracing an objective test in\nunintended-target cases. See Irish, 108 F.4th at 721; id. at 719 (explaining that\nTorres said that “subjective motivations” are “rarely” relevant (quoting 592 U.S. at\n317)).2 Irish, however, considered the clarity of the constitutional right the officer\nhad allegedly violated, a step-two inquiry, not whether there had been a violation.\nSee id.; see also Mullenix v. Luna, 577 U.S. 7, 11 (2015) (“A clearly established\nright is one that is sufficiently clear that every reasonable official would have\nunderstood that what he is doing violates that right.” (emphasis added) (citation\nomitted)). When we start with step one, by contrast, our job is to connect the dots\nand reach the right answer. See Irish, 108 F.4th at 719–20 (suggesting that what was\n“impl[ied]” from past cases created uncertainty (citation omitted)). To the extent\nIrish commented on the correct constitutional test, its focus was on how the officer\nhad “conveyed” his intent “to the person confronted.” Id. at 719 (noting that\n\n 2\n Just because the “subjective motivations of police officers” can be relevant\ndoes not mean that in this context they are. Torres, 592 U.S. at 317; see Ashcroft v.\nal-Kidd, 563 U.S. 731, 736–37 (2011) (identifying some examples when they would\nbe, including “special-needs and administrative-search cases”).\n -4-\n\n“officers’ subjective intent ‘is relevant to an assessment of the Fourth Amendment\nimplications of police conduct’ insofar as ‘that intent has been conveyed to the\nperson confronted’” (second emphasis added) (quoting Chesternut, 486 U.S. at 575\nn.7)). And applying that test here, as we have already explained, reveals that Deputy\nWilliams did not seize Hight.\n\n B.\n\n Hight insists he did the moment the bullet fragment “physically touched” her.3\nSchulz v. Long, 44 F.3d 643, 647 (8th Cir. 1995). It is true that a touch can give rise\nto a seizure by force. See Torres, 592 U.S. at 314. But as Torres makes clear,\n“not . . . every physical contact between a government employee and a member of\nthe public [is] a Fourth Amendment seizure.” Id. at 317. It can be, when the touch\nconveys an “intent to restrain,” but not when it communicates something else. Id.\n(discussing a tap on the shoulder).\n\n The only thing Deputy Williams conceivably intended to restrain was the dog,\nwhich is an “effect[],” not a “person[].” U.S. Const. amend. IV; see Oliver v. United\nStates, 466 U.S. 170, 177 n.7 (1984) (“The Framers would have understood the term\n‘effects’ to be limited to personal . . . property.”). Had Williams hit his target, then\nhe would have “meaningful[ly] interfere[d] with [Hight’s] possessory interests” in\nit. Hansen v. Black, 872 F.3d 554, 558 (8th Cir. 2017) (quoting United States v.\nJacobsen, 466 U.S. 109, 113 (1984)). But the intent to restrain her would still have\nbeen absent.\n\n The intent does not transfer because the force used must be “intentionally\napplied” to whomever or whatever the officer is trying to seize. Torres, 592 U.S. at\n317; see id. at 318 (holding that the officers seized the plaintiff because the “shooting\napplied physical force to her body and objectively manifested an intent to restrain\n\n 3\n Hight’s argument that Deputy Williams should be responsible for the “natural\nconsequences of his actions,” Monroe v. Pape, 365 U.S. 167, 187 (1961), is just\nanother variation on the same theme.\n -5-\n\nher” (emphases added)); Brower, 489 U.S. at 596–97 (requiring the use of force to\nbe “intentionally applied” and the “detention or taking itself [to] be willful”).\nApplying it to someone or something else—that is, “for some other purpose”—is not\na seizure if the officer conveyed no intent to restrain the person he touched. Torres,\n592 U.S. at 317; see Belton v. Loveridge, 129 F.4th 271, 278 (4th Cir. 2025)\n(explaining that no seizure occurs when an officer accidentally hits a bystander\n“because the means of the seizure [are] not deliberately applied to the victim”\n(alteration in original) (citation omitted)). And here, all the objective evidence\nsuggests Deputy Williams intended to stop the dog, not Hight.\n\n III.\n\n Some loose ends remain. One is Hight’s argument that the district court “got\nthe facts flat wrong.” See Fed. R. Civ. P. 56(a) (allowing summary judgment only\nwhen there is “no genuine dispute as to any material fact”). She takes issue with\nwhat the court did not mention: the dog was a 9-pound Pomeranian mix; Williams’s\nactions violated county and departmental policy; and she was, on her telling,\n“immediately behind” the dog. Neither of the first two facts, however, was material\nto the “threshold question” of whether a seizure occurred, Dundon, 85 F.4th at 1255;\nsee Virginia v. Moore, 553 U.S. 164, 172 (2008) (“[T]he Fourth Amendment’s\nmeaning [does] not change with local law enforcement practices . . . .”), and the third\nis contradicted by the bodycam video, see Scott v. Harris, 550 U.S. 372, 380–81\n(2007).\n\n The other loose end is Hight’s argument that Deputy Williams is liable for\n“creat[ing] the danger to which [she was] subjected.” Montgomery v. City of Ames,\n749 F.3d 689, 694 (8th Cir. 2014). This one fails for a different reason: she has\nraised it for the first time on appeal, so we will not consider it. See Perry v. Precythe,\n121 F.4th 711, 716 (8th Cir. 2024) (noting that “our ordinary practice” is “not [to]\nconsider” arguments the party “failed to raise . . . in the district court”).\n\n\n\n -6-\n\n IV.\n\n We accordingly affirm the judgment of the district court.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11240374/", "author_raw": "STRAS, Circuit Judge."}, {"author": "COLLOTON, Chief Judge, concurring", "type": "concurrence", "text": "COLLOTON, Chief Judge, concurring in the judgment.\n\n This case is controlled by Irish v. McNamara, 108 F.4th 715 (8th Cir. 2024),\nand the judgment should be affirmed on that basis. Irish held that the law is not\nclearly established that an officer can seize a person “without subjectively intending\nto do so.” Id. at 721. In this case, it is undisputed the Deputy Williams did not\nsubjectively intend to seize Ms. Hight; it is undisputed that Williams subjectively\nintended to seize only her effect, the dog. Therefore, Williams is entitled to qualified\nimmunity. Id. The district court correctly applied Irish and ruled that Williams is\nentitled to qualified immunity because “it was not clearly established as of August\n30, 2022, that an officer in Arkansas could seize Plaintiff by shooting her without\nsubjectively intending to do so.”\n\n Rather than resolve the appeal in a simple manner by applying circuit\nprecedent, the majority insists on contradicting what the court said last year. The\nmajority asserts that Torres v. Madrid, 592 U.S. 306, 317 (2021), established a test\nthat disavowed any inquiry into what an officer subjectively thought. Irish said the\nopposite: “Like Brendlin [v. California, 551 U.S. 249 (2007)], Torres focused on\n‘objective intent,’ but it didn’t disavow the Court’s prior statements or end any\n‘debate’ on subjective intent’s role in whether a seizure occurred. See Gardner v.\nBd. of Police Comm’rs, 641 F.3d 947, 952-53 (8th Cir. 2011) (identifying where\nlanguage in Brower [v. Cnty. of Inyo, 489 U.S. 593 (1989)] and Brendlin ‘allude[d]\nto an officer’s subjective state of mind’).” Irish, 108 F.4th at 719-20.\n\n Irish also explained that “importantly, decisions in the unintended-target\ncases imply that an officer’s subjective state of mind is relevant in determining\nwhether a seizure occurred.” Id. at 720 (citing Gardner, 641 F.3d at 952, and Moore\nv. Indehar, 514 F.3d 756, 760 (8th Cir. 2008)) (internal quotations and alterations\n -7-\n\nomitted). That is not, as the majority would have it, a statement about how an officer\nconveyed his intent to the person confronted. See also Gardner, 641 F.3d at 953\n(“In Moore v. Indehar, 514 F.3d 756 (8th Cir. 2008), the court explained that a\nplaintiff ‘must show that [the officer] intended to seize [him] through the means of\nfiring his weapon at [him] to establish a Fourth Amendment claim,’ id. at 760, and\nadverted to the officer’s deposition testimony as relevant evidence concerning ‘his\nintentions upon firing the weapon.’ Id. at 761 (emphasis added).”).\n\n Beyond mischaracterizing Irish, the majority unwisely attempts to adopt a\nnew constitutional test in a case where the complex issue of intent was barely\naddressed by the parties. The Supreme Court has observed that this approach “may\ncreate a risk of bad decisionmaking,” because the courts of appeals “sometimes\nencounter cases in which the briefing of constitutional questions is woefully\ninadequate.” Pearson v. Callahan, 555 U.S. 223, 239 (2009). The majority also\nrisks confusion for future panels of this court who now must confront dueling panel\nopinions. Cf. Degnan v. Burwell, 765 F.3d 805, 809 n.6 (8th Cir. 2014) (explaining\nthat when the court is faced with conflicting panel opinions, the earliest opinion must\nbe followed as it should have controlled the subsequent panel that created the\nconflict).\n\n The court should affirm the judgment on the straightforward reasoning of the\ndistrict court and the decision last year in Irish. As the Supreme Court has cautioned,\n“courts should think hard, and then think hard again, before turning small cases into\nlarge ones” by unnecessarily addressing constitutional questions in qualified\nimmunity cases. Camreta v. Greene, 563 U.S. 692, 707 (2011).\n _________________________\n\n\n\n\n -8-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11240374/", "author_raw": "COLLOTON, Chief Judge, concurring"}]}	COLLOTON	ERICKSON	STRAS	1		{"COLLOTON": ", Chief", "ERICKSON": ", Circuit", "STRAS": ", Circuit"}	2	0	1	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10773789/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,774,376	United States v. Jessie Collins	2026-01-14	24-2171	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Before LOKEN, KELLY, and ERICKSON, Circuit Judges.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 24-2171\n ___________________________\n\n United States of America\n\n Plaintiff - Appellee\n\n v.\n\n Jessie Michael Collins, also known as Jessie Collins\n\n Defendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the Eastern District of Arkansas - Central\n ____________\n\n Submitted: September 15, 2025\n Filed: January 14, 2026\n [Published]\n ____________\n\nBefore LOKEN, KELLY, and ERICKSON, Circuit Judges.\n ____________\n\nPER CURIAM.\n\n Jessie Collins pleaded guilty to two counts of distribution of child\npornography under 18 U.S.C. § 2252(a)(2). On appeal, Collins argues that the\n\fdistrict court 1 both procedurally erred and imposed a substantively unreasonable\nsentence. After careful review, we affirm.\n\n I.\n\n A.\n\n After sending two videos and a still image depicting minors engaged in\nsexually explicit conduct to an undercover agent posing as a mother with a\nprepubescent child, Collins pleaded guilty to two counts of distribution of child\npornography. At sentencing, Collins objected to allegations in the Presentence\nReport (PSR) that he had engaged in uncharged sexual conduct with a 12-year-old\ngirl when he was 21 years old. The government called the minor—then a 25-year-\nold woman 2—as a witness, and she confirmed the accuracy of the allegations. The\ndistrict court found the witness’s testimony was “completely true” and overruled the\nobjection. Based on this finding, the district court applied a 5-level enhancement\npursuant to U.S. Sent’g Comm’n, Guidelines Manual § 2G2.2(b)(5) (Nov. 2024) (“If\nthe defendant engaged in a pattern of activity involving the sexual abuse or\nexploitation of a minor, increase by 5 levels.”) and calculated an advisory Guidelines\nrange of 262–327 months. The court imposed a 210-month sentence on each count,\nto run consecutively, for a total of 420-months’ imprisonment.\n\n B.\n\n “We review a district court’s sentence in two steps, first reviewing for\nsignificant procedural error, and second, if there is no significant procedural error,\nwe review for substantive reasonableness.” United States v. Dickson, 127 F.4th 722,\n726 (8th Cir. 2025) (quoting United States v. Ayres, 929 F.3d 581, 582–83 (8th Cir.\n\n 1\n The Honorable Lee P. Rudofsky, United States District Judge for the Eastern\nDistrict of Arkansas.\n 2\n We continue to refer to her here as “the minor.”\n -2-\n\f2019)). “Procedural errors include ‘failing to calculate (or improperly calculating)\nthe Guidelines range, treating the Guidelines as mandatory, failing to consider the\n§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to\nadequately explain the chosen sentence—including an explanation for any deviation\nfrom the Guidelines range.’” Id. at 726–27 (quoting United States v. Feemster, 572\nF.3d 455, 461 (8th Cir. 2009) (en banc)). “When considering procedural error, the\ndistrict court’s factual findings are reviewed for clear error and its application of the\nguidelines de novo.” United States v. Rooney, 63 F.4th 1160, 1170 (8th Cir. 2023)\n(citing United States v. Quiver, 925 F.3d 377, 380 (8th Cir. 2019)).\n\n Because Collins failed to object at sentencing to the errors he asserts on\nappeal, we review for plain error. See United States v. Stokes, 750 F.3d 767, 771\n(8th Cir. 2014). To show plain error, a litigant must demonstrate that “(1) there was\nerror, (2) the error was plain, and (3) the error affected his substantial rights.” Id.\n(quoting United States v. Grimes, 702 F.3d 460, 470 (8th Cir. 2012); United States\nv. Miller, 557 F.3d 910, 916 (8th Cir. 2009)). In the sentencing context, an error\naffects a defendant’s substantial rights “only if there is a reasonable probability that\nthe defendant would have received a lighter sentence but for the error.” Stokes, 750\nF.3d at 771 (quoting Grimes, 702 F.3d at 470).\n\n C.\n\n Collins argues the district court procedurally erred when it relied on a clearly\nerroneous fact to support the 5-level enhancement: that he was 21 years old at the\ntime of the prior uncharged conduct. He points out that, according to the minor’s\ntestimony—which the district court credited in full, he “would have been no more\nthan 18 years old at the time he met [the minor].”\n\n We agree, and because this error was evident from the face of the PSR, it was\nplain. However, this error did not affect Collins’s substantial rights. The undisputed\nfacts show that Collins is approximately six years older than the minor, who was age\n12 at the time, and the conduct qualified as “sexual abuse or exploitation of a minor.”\n -3-\n\fSee Ark. Code Ann. § 5-14-103(a)(3)(A) (defining rape as “sexual intercourse . . .\nwith another person . . . [w]ho is less than fourteen (14) years of age. It is an\naffirmative defense . . . that the actor was not more than three (3) years older than\nthe victim”); 18 U.S.C. § 2243(a) (Sexual abuse of a minor is “knowingly engag[ing]\nin a sexual act with another person who—has attained the age of 12 years but has\nnot attained the age of 16 years; and is at least four years younger than the person so\nengaging.”). Whether Collins was 18 or 21, the enhancement would still apply.\n\n Collins nevertheless contends that the minor’s mistake about his age calls into\nquestion her credibility as a whole. That may be so, but she confirmed other details\nabout her contact with Collins, and she was able to establish the relevant timeframe\nof the uncharged conduct through reference to other life events. The district court\ndid not mention Collins’s specific age when addressing the facts underlying the\nenhancement, and we are not convinced that it would have come to a different\ncredibility finding had it known the minor was wrong about this fact.\n\n Next, Collins asserts that the district court erred in failing to identify a\nstatutory basis for the § 2G2.2(b)(5) enhancement. As noted, for this enhancement\nto apply, the sentencing court must find that a defendant has engaged in “a pattern\nof activity involving the sexual abuse or exploitation of a minor.” USSG\n§ 2G2.2(b)(5). The commentary defines “sexual abuse or exploitation” to include\n“an offense under state law, that would have been an offense under any [of the\nidentified federal statutes] if the offense had occurred within the special maritime or\nterritorial jurisdiction of the United States[.]” Id. § 2G2.2, comment. (n.1). At\nsentencing, the district court failed to identify a qualifying criminal offense that\nprohibited Collins’s prior uncharged conduct, nor was one named in the PSR.\n\n We agree that this was error. Cf. United States v. Gleich, 397 F.3d 608, 615\n(8th Cir. 2005) (reversing application of § 2G2.2 “pattern of activity” enhancement\nbecause defendant’s prior conduct did not meet the definition of sexual abuse or\nexploitation of a minor). But again, Collins has failed to demonstrate that the error\naffected his substantial rights. The minor’s testimony and the district court’s\n -4-\n\fdiscussion with the parties about it provided Collins with adequate information about\nthe basis for the enhancement and an opportunity to respond. Moreover, Collins does\nnot assert that the prior uncharged conduct as alleged does not, in fact, fall within\nthe definition of “sexual abuse or exploitation,” and we have concluded there was\nno plain error in the district court’s decision to find the allegations credible.\n\n D.\n\n We now review Collins’s sentence for substantive reasonableness for an abuse\nof discretion. “A district court abuses its discretion when it (1) fails to consider a\nrelevant factor that should have received significant weight; (2) gives significant\nweight to an improper or irrelevant factor; or (3) considers only the appropriate\nfactors but in weighing those factors commits a clear error of judgment.” Dickson,\n127 F.4th at 729 (quoting Feemster, 572 F.3d at 461).\n\n Collins argues that the district court gave significant weight to an improper\nfactor when it imposed an above-range sentence based on factors already accounted\nfor by the Guidelines. Imposing an upward variance based on factors used to\ncalculate the Guidelines range is permissible, United States v. Ivory, 146 F.4th 693,\n698 (8th Cir. 2025) (quoting United States v. Manuel, 73 F.4th 989, 993 (8th Cir.\n2023)), but sentencing courts should “take care in doing so,” United States v.\nThorne, 896 F.3d 861, 865 (8th Cir. 2018) (per curiam). Here, the district court\nexplained that Collins’s history and conduct are “not really what the [G]uidelines\nare contemplating and call[] out for an over-the-[G]uidelines sentence[.]” According\nto the district court, the images that Collins possessed were “shocking to the\nconscience” and “not run of the mill.” The district court raised concerns about\nCollins’s danger to the public, describing his “predatory conduct” and emphasizing\nits “repeat[ed] nature.” The district court also considered mitigating factors, such as\nCollins’s own experience of sexual abuse as a child, but it gave the aggravating\nfactors significantly more weight. See Ivory, 146 F.4th at 698 (“A district court has\n‘wide latitude . . . to assign some factors greater weight than others.’” (quoting\n\n\n -5-\n\fUnited States v. Haskins, 101 F.4th 997, 1000 (8th Cir. 2024)). We do not find an\nabuse of the district court’s wide discretion here.\n\n II.\n\n The judgment of the district court is affirmed.\n ______________________________\n\n\n\n\n -6-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11240961/", "author_raw": "PER CURIAM"}]}	LOKEN	KELLY	ERICKSON	1		{"LOKEN": ", Circuit", "KELLY": ", Circuit", "ERICKSON": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10774376/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,774,377	Ryan Wolterman v. Shawn Syverson	2026-01-14	24-1482	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Before SMITH, GRUENDER, and SHEPHERD, Circuit Judges.", "parties": "", "opinions": [{"author": "GRUENDER, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 24-1482\n ___________________________\n\n Ryan Wolterman\n\n Plaintiff - Appellant\n\n v.\n\n Shawn Syverson, Individually and in his official capacity as a law enforcement\n officer; Gregory Baloun, Individually and in his official capacity as Sheriff;\n Dickinson County, Iowa\n\n Defendants - Appellees\n ____________\n\n Appeal from United States District Court\n for the Northern District of Iowa - Western\n ____________\n\n Submitted: September 17, 2025\n Filed: January 14, 2026\n ____________\n\nBefore SMITH, GRUENDER, and SHEPHERD, Circuit Judges.\n ____________\n\nGRUENDER, Circuit Judge.\n\n This appeal concerns a suit brought under 42 U.S.C. § 1983 and Iowa law by\nRyan Wolterman against Dickinson County and two of its employees, Sheriff\n\fGregory Baloun and Deputy Sheriff Shawn Syverson. Wolterman appeals the\ndistrict court’s1 entry of summary judgment in the defendants’ favor. We affirm.\n\n I. Background\n\n On November 8, 2020, Dickinson County Deputy Sheriff Shawn Syverson\nresponded to a call for service related to a fight at the Captain’s Getaway bar in\nArnolds Park, Iowa. Deputy Syverson later testified that, after arriving on the scene,\nhe spoke with a female witness who pointed down an alley towards an individual\nwho was wearing a green shirt and who was walking away from the area. The\nindividual was approximately 100 yards away. Deputy Syverson asserts that he then\ngot in his patrol car to follow the individual down the alley but soon lost sight of the\nindividual. In the patrol car, Deputy Syverson’s body camera began recording.2\n\n Believing the individual “had either fled or was hiding,” Deputy Syverson\nbegan to search, first on foot, then again in the patrol car. While in his patrol car,\nDeputy Syverson spotted Ryan Wolterman walking on the sidewalk. Deputy\nSyverson later testified that Wolterman was wearing “the same type of jacket” as the\nindividual he had seen, and the jacket appeared to be an “olive-greenish color.”\nMoreover, Wolterman was “right in the area” where Deputy Syverson had last seen\nthe individual, about a minute’s walk away from the Captain’s Getaway bar.\n\n\n\n\n 1\n The Honorable C.J. Williams, Chief Judge, United States District Court for\nthe Northern District of Iowa.\n 2\n Wolterman disputes Deputy Syverson’s testimony regarding events that\noccurred before the camera began recording. However, he fails to present any\ncontrary evidence and thus fails to establish a genuine dispute of material fact. See\nFatemi v. White, 775 F.3d 1022, 1040 (8th Cir. 2015) (“To establish a genuine issue\nof material fact, [plaintiff] may not merely point to unsupported self-serving\nallegations, but must substantiate allegations with sufficient probative evidence that\nwould permit a finding in [his] favor.” (citation modified)).\n -2-\n\f Deputy Syverson exited his patrol vehicle to question Wolterman. Within\nfifteen seconds, Milford Police Department Officer Jesse Hoss joined the pair. In\nresponse to Deputy Syverson’s inquiries, Wolterman stated that he had witnessed\nthe fight but denied involvement. Wolterman disputed Deputy Syverson’s assertions\nthat he was wearing a green sweatshirt and that his knuckles were red and swollen.\nFlashlight beams revealed that Wolterman was wearing a zip-up Carhartt-style\njacket that appeared brown or olive-green, depending on the lighting. Deputy\nSyverson requested identification several times until Wolterman complied.\n\n Deputy Syverson—who later testified that he had observed “an odor of\nalcohol beverages”—asked Wolterman how much he “had to drink tonight,” to\nwhich Wolterman replied, “None of your business. I’m walking.” Wolterman\nasserts that, at this point, Deputy Syverson nodded at Officer Hoss.3 Wolterman\nturned to face Officer Hoss and asked, “Are you going to arrest me now?” Officer\nHoss proceeded to handcuff him, informing him “You’re not under arrest; you’re\njust being detained.” Deputy Syverson assisted by holding Wolterman’s left elbow\nand shining his flashlight to assist Officer Hoss as he fastened the handcuffs.\n\n Officer Hoss, trailed by Deputy Syverson, walked Wolterman back to\nCaptain’s Getaway, where Deputy Syverson left them to speak with another witness.\nWhile he was still speaking with the witness, an individual came up to Deputy\nSyverson and told him that she was “99.99 percent sure” that Wolterman was not\ninvolved in the fight. After that witness walked away, Deputy Syverson told the\nother suspect that Wolterman was going to be arrested for public intoxication\n“anyways” because he was being stupid. After being transported to the jail,\nWolterman gave a breath sample that indicated he had a blood alcohol content of\n.016. This result can be caused by consuming a single alcoholic drink. Nonetheless,\nWolterman was charged with public intoxication. He pled not guilty. Nearly eight\nmonths later, the State voluntarily moved to dismiss the charge.\n\n\n 3\n As Deputy Syverson was wearing the body camera, the video of the event\ndoes not show whether Deputy Syverson actually nodded.\n -3-\n\f Wolterman sued Deputy Syverson, Dickinson County Sheriff Gregory\nBaloun, and Dickinson County, bringing claims under 42 U.S.C. § 1983 and Iowa\nlaw. 4 He alleged that Deputy Syverson violated his right to be free from\nunreasonable seizure under the Fourth and Fourteenth Amendments and the Iowa\nConstitution and that Sheriff Baloun and Dickinson County failed to properly train\nand supervise or to adopt adequate policies to prevent this violation as required by\nMonell v. Dep’t of Soc. Servs. of N.Y.C., 436 U.S. 658 (1978). He alleged pursuant\nto Iowa law that Deputy Syverson was liable for false arrest, that Sheriff Baloun and\nDickinson County were liable for negligent training and supervision, and that\nDickinson County was liable under the doctrine of respondeat superior. The\ndefendants moved for summary judgment and Wolterman cross-moved for partial\nsummary judgment.\n\n The district court granted summary judgment to the defendants, denying\nWolterman’s motion. As relevant here, it determined (1) that Deputy Syverson was\nentitled to qualified immunity because he had not violated Wolterman’s right to be\nprotected from unreasonable seizure under the Fourth and Fourteenth Amendments;\n(2) that Dickinson County is not subject to Monell liability; (3) that Deputy Syverson\nhad not committed false arrest under Iowa law; (4) that Sheriff Baloun and Dickinson\nCounty had not committed negligent supervision and (5) that Dickinson County was\nnot liable based on a respondeat superior theory. Wolterman appeals, arguing that\neach of these determinations was in error.\n\n II. Discussion\n\n We review a district court’s grant of summary judgment de novo, viewing the\nrecord in the light most favorable to the nonmoving party—here, Wolterman—and\n\n\n 4\n Wolterman also sued the City of Arnolds Park, Arnolds Park Chief-of-Police\nAlan Krueger, Officer Yungbluth (the officer who filed the criminal complaint\nagainst Wolterman), and Officer Hoss. The parties jointly stipulated to dismiss those\nclaims pursuant to a settlement agreement.\n\n -4-\n\fgiving him the “benefit of all reasonable inferences.” See De Mian v. City of St.\nLouis, 86 F.4th 1179, 1182 (8th Cir. 2023). Summary judgment is appropriate when\n“the movant shows that there is no genuine dispute as to any material fact and the\nmovant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A dispute\nis genuine if the evidence is such that it could cause a reasonable jury to return a\nverdict for either party; a fact is material if its resolution affects the outcome of the\ncase.” Flores v. United States, 689 F.3d 894, 902 (8th Cir. 2012).\n\n A.\n\n We first address Wolterman’s claim that Deputy Syverson violated his federal\nright to be free from unreasonable seizure. The district court granted summary\njudgment to Deputy Syverson based on qualified immunity. “Qualified immunity\nprotects government officials from liability for civil damages insofar as their conduct\ndoes not violate clearly established statutory or constitutional rights of which a\nreasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231\n(2009) (citation modified). The doctrine “gives government officials breathing room\nto make reasonable but mistaken judgments” and “protects all but the plainly\nincompetent or those who knowingly violate the law.” Ashcroft v. al-Kidd, 563 U.S.\n731, 743 (2011) (citation modified). To determine whether an official is entitled to\nqualified immunity, “we consider (1) whether the official’s conduct violated a\nconstitutional right; and (2) whether the violated right was clearly established.”\nStanley v. Finnegan, 899 F.3d 623, 627 (8th Cir. 2018) (citation modified).\n\n Wolterman asserts that Deputy Syverson violated his constitutional rights\nunder the Fourth Amendment because he (1) lacked reasonable suspicion to stop and\nquestion him about the bar fight and (2) lacked probable cause to execute an arrest.\n\n First, Deputy Syverson had reasonable suspicion to stop Wolterman. A police\nofficer may effect a temporary investigative detention if the officer has reasonable\nsuspicion that criminal activity “may be afoot.” Terry v. Ohio, 392 U.S. 1, 30 (1968).\nAn officer is considered to have “reasonable suspicion” if he has “a particularized\n -5-\n\fand objective basis for suspecting the particular person stopped of breaking the law.”\nHeien v. North Carolina, 574 U.S. 54, 60 (2014) (citation modified). Reasonable\nsuspicion is “not readily, or even usefully, reduced to a neat set of legal rules,” but\nis evaluated based on the totality of the circumstances. United States v. Quinn, 812\nF.3d 694, 697 (8th Cir. 2016). An officer might consider factors like the time of day\nor night, location, and the suspect’s behavior when he becomes aware of the officer’s\npresence. Id. at 697-98. “[A] person’s temporal and geographic proximity to a crime\nscene, combined with a matching description of the suspect, can support a finding\nof reasonable suspicion.” Id. at 698.\n\n The district court concluded that Deputy Syverson had reasonable suspicion\nto stop Wolterman because he matched the suspect’s description and was temporally\nand geographically proximate to the altercation. We agree. Deputy Syverson\ntestified that a witness informed him that a person wearing a green shirt was involved\nin the fight. That witness pointed to an individual, approximately 100 yards away,\nwhom Deputy Syverson saw and pursued. Upon losing sight of the suspect, Deputy\nSyverson believed the suspect “had either fled or was hiding.” While searching the\narea, Deputy Syverson came across Wolterman, whom he believed to resemble the\nsuspect he had seen from a distance. Deputy Syverson believed that Wolterman’s\njacket was an “olive-greenish color.” Further, Deputy Syverson came across\nWolterman near where he had lost sight of the suspect—in other words, near where\nhe believed the suspect might have been hiding. Based on the totality of these\ncircumstances, Deputy Syverson had reasonable suspicion to conduct a Terry stop.\nSee id. at 699. (“[G]eneric suspect descriptions and crime-scene proximity can\nwarrant reasonable suspicion where there are few or no other potential suspects in\nthe area who match the description.”).\n\n Wolterman resists this conclusion. He argues that he did not match the\nsuspect’s description because he was wearing a brown zip-up Carhartt coat, not a\ngreen sweatshirt. He also argues that he was not in a suspicious location because he\nwas only one minute’s walk away from the scene of the altercation and Deputy\nSyverson had been searching for at least five minutes. Further, Wolterman argues,\n -6-\n\fbecause he continued walking normally when the patrol vehicle approached, Deputy\nSyverson should not have believed that Wolterman had recently fled or hid. We do\nnot think these facts undermine Deputy Syverson’s reasonable suspicion. Deputy\nSyverson relied on more than just the color of the jacket—he saw the suspect from\na distance and believed Wolterman to resemble him and to be wearing a similar type\nof jacket. Further, Deputy Syverson was operating in poor lighting that made it\ndifficult to discern the exact color of the jacket. And, because Deputy Syverson lost\nsight of the suspect nearby, he reasonably suspected that the suspect might still be\nin the immediate area. See Navarette v. California, 572 U.S. 393, 403 (2014) (noting\nthat an officer “need not rule out the possibility of innocent conduct” to have\nreasonable suspicion). Deputy Syverson had reasonable suspicion to execute the\nTerry stop.\n\n Second, Deputy Syverson did not violate Wolterman’s constitutional rights\nby executing his arrest without probable cause because, as an assisting officer, he\nexercised reasonable reliance on Officer Hoss’s probable cause determination. “An\nassisting officer may rely on the probable cause determination and follow the\ndirections of an officer who is directing the arrest as long as the reliance is\nreasonable.” Baude v. Leyshock, 23 F.4th 1065, 1074 (8th Cir. 2022) (citation\nmodified). Officer Hoss, who was dismissed pursuant to a settlement agreement,\ndirected the arrest. It was Officer Hoss—not Deputy Syverson—who made the\ndecision to handcuff Wolterman and who escorted him away.5 Deputy Syverson\nmerely assisted by placing a hand on Wolterman’s elbow and directing his flashlight\nbeam to assist Officer Hoss as he fastened the handcuffs. He then trailed closely\nbehind the pair as they walked back to Captain’s Getaway. As an assisting—not\ndirecting—officer, Deputy Syverson was entitled to exercise reasonable reliance on\nOfficer Hoss’s probable cause determination. See id.\n\n 5\n Defendants assert that Officer Hoss merely detained Wolterman and that\nOfficer Yungbluth, another Arnolds Park Officer on the scene, later conducted the\narrest. This is irrelevant for purposes of our Fourth Amendment analysis. See\nChiaverini v. City of Napoleon, 602 U.S. 556, 562-63 (2024) (noting pretrial\ndetentions must be based on probable cause).\n -7-\n\f Wolterman resists this conclusion by pointing to his deposition testimony that\nhe witnessed Deputy Syverson “signal” Officer Hoss to handcuff Wolterman. This\nfails to establish a genuine dispute of fact as to whether Officer Hoss directed the\narrest and is thus responsible for establishing probable cause. Deputy Syverson and\nOfficer Hoss were employed by different police departments, and Wolterman has\npresented no evidence to support the conclusion that Deputy Syverson exercised any\nauthority over Officer Hoss such that a nod should be interpreted as an implied order.\nTo the contrary, at oral argument, counsel for Wolterman conceded that no direct\nchain of command existed between Deputy Syverson and Officer Hoss.\n\n Deputy Syverson reasonably relied on Officer Hoss’s probable cause\ndetermination. Deputy Syverson had observed the odor of alcoholic beverages and,\nmoments before, had reasonable suspicion that Wolterman was involved in the\naltercation. Moreover, Wolterman was uncooperative and hostile towards Deputy\nSyverson while being questioned. Although Deputy Syverson did not know why\nWolterman was being arrested and later testified that he would not have arrested\nWolterman for public intoxication based on his personal observations, as an assisting\nofficer, Deputy Syverson did not need to independently establish probable cause.\nAs Deputy Syverson later testified, “[Officer Hoss] can see things that I can’t\nsometimes. I can see things that he can’t sometimes. When another officer decides\nto place somebody in handcuffs, he might have prior knowledge. He might be\nnoticing something that I’m not. I don’t know why he placed [Wolterman] in\nhandcuffs. That was not my call.”\n\n In sum, because Deputy Syverson had reasonable suspicion to effect a Terry\nstop and because he reasonably relied on Officer Hoss’s decision to effect an arrest,\nDeputy Syverson did not violate Wolterman’s Fourth Amendment right to be free\nfrom unreasonable search and seizure.\n\n\n\n\n -8-\n\f B.\n\n We next address the denial of Wolterman’s Monell claim against Sheriff\nBaloun and Dickinson County. “Absent a constitutional violation by an employee,\nthere can be no § 1983 or Monell liability.” Stearns v. Wagner, 122 F.4th 699, 704\n(8th Cir. 2024) (citation modified). Because Deputy Syverson did not violate\nWolterman’s constitutional rights, the district court properly dismissed his Monell\nclaim.\n\n C.\n\n We finally address Wolterman’s false arrest, negligent supervision, and\nrespondeat superior claims under Iowa law.\n\n First, Deputy Syverson did not commit false arrest. An Iowa false arrest claim\nhas two elements: “(1) detention or restraint against one’s will, and (2) unlawfulness\nof the detention or restraint.” Thomas v. Marion Cnty., 652 N.W.2d 183, 186 (Iowa\n2002). Wolterman’s false arrest claim against Deputy Syverson fails to satisfy the\nsecond element. “A peace officer may make an arrest . . . [w]here the peace officer\nhas reasonable grounds for believing that an indictable public offense has been\ncommitted and has reasonable grounds for believing that the person to be arrested\nhas committed it.” Iowa Code § 804.7 (2025). As discussed above, Deputy\nSyverson reasonably relied on Officer Hoss’s decision to arrest; therefore, he\nreasonably believed that Wolterman had committed an indictable public offense.\n\n Second, Wolterman’s negligent supervision claim against Sheriff Baloun and\nDickinson County fails. A necessary element of an Iowa negligent supervision claim\nis that “the employer knew, or in the exercise of ordinary care should have known,\nof its employee’s unfitness at the time the employee engaged in wrongful or tortious\nconduct.” Est. of Harris v. Papa John’s Pizza, 679 N.W. 2d 673, 680 (Iowa 2004)\n(emphasis added). Because Wolterman failed to establish that a genuine dispute of\n\n\n -9-\n\fmaterial fact exists as to whether Deputy Syverson ever engaged in wrongful or\ntortious conduct, his negligent supervision claim also fails.\n\n Third, Wolterman’s respondeat superior claim against Dickinson County\nlikewise fails because he failed to raise facts suggesting that Deputy Syverson acted\nnegligently. See Godar v. Edwards, 588 N.W.2d 701, 705 (Iowa 1999) (“[U]nder\nthe doctrine of respondeat superior, an employer is liable for the negligence of an\nemployee committed while the employee is acting within the scope of his or her\nemployment.”).\n\n III. Conclusion\n\n For the foregoing reasons, we affirm the judgment of the district court.\n ______________________________\n\n\n\n\n -10-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11240962/", "author_raw": "GRUENDER, Circuit Judge."}]}	SMITH	GRUENDER	SHEPHERD	1		{"SMITH": ", Circuit", "GRUENDER": ", Circuit", "SHEPHERD": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10774377/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,774,379	Auto-Owners Mutual Insurance Company v. Beverly Granger	2026-01-14	24-2705	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Before COLLOTON, Chief Judge, ERICKSON and STRAS, Circuit Judges.", "parties": "", "opinions": [{"author": "STRAS, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 24-2705\n ___________________________\n\n Auto-Owners Mutual Insurance Company\n\n Plaintiff - Appellee\n\n v.\n\n Beverly Granger\n\n Defendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the Western District of Missouri - Joplin\n ____________\n\n Submitted: September 18, 2025\n Filed: January 14, 2026\n ____________\n\nBefore COLLOTON, Chief Judge, ERICKSON and STRAS, Circuit Judges.\n ____________\n\nSTRAS, Circuit Judge.\n\n The issue here is whether an automobile-insurance policy unambiguously\nsubjects underinsured-motorist claims by two spouses to a single $250,000\nper-person limit. The district court concluded it did. With another reasonable\ninterpretation available, however, we reverse.\n\f I.\n\n Randy Granger suffered severe injuries in a car accident. The other driver’s\ninsurer paid out to the policy limit of $25,000. Short of what he needed to cover his\ninjuries, Randy filed a claim under his own policy for underinsured-motorist\nbenefits, which come into play when “a tortfeasor’s automobile[-]insurance policy\nlimits are insufficient to cover the loss.” Jones v. Kennedy, 108 S.W.3d 203, 206\nn.1 (Mo. Ct. App. 2003). Auto-Owners Mutual Insurance Company, his insurer,\nthen paid out to its per-person limit of $250,000.\n\n Beverly, Randy’s wife, also filed an underinsured-motorist claim with\nAuto-Owners. Hers was for loss-of-consortium damages to cover the decline in\n“affection, care, companionship, and services” from Randy’s injuries. Wright v.\nBarr, 62 S.W.3d 509, 537 (Mo. Ct. App. 2001). Treating Beverly’s request as purely\nderivative of Randy’s, it refused to pay because the per-person limit for\nunderinsured-motorist benefits had already been reached.\n\n The next stop was federal court. Auto-Owners filed first, seeking a\ndeclaration that it owed nothing more to the Grangers. Beverly counterclaimed for\nbreach of contract based on the insurer’s refusal to pay. The district court sided with\nAuto-Owners on both claims at summary judgment. In its view, Beverly’s\nloss-of-consortium claim “necessarily and inseparably follow[ed]” the one covering\nRandy’s injuries. (Emphasis added). Our task on appeal is to figure out whether the\npolicy supports the decision to group the two claims as one.\n\n II.\n\n We review the interpretation of an insurance policy de novo. See Great Am.\nAll. Ins. Co. v. Windermere Baptist Conf. Ctr., Inc., 931 F.3d 771, 773 (8th Cir.\n2019). Everyone agrees that Missouri law controls, so we apply the policy’s “plain\nand ordinary meaning . . . , looking [at it] ‘as a whole’ and resolving any ambiguities\nin favor of the insured.” Verto Med. Sols., L.L.C. v. Allied World Specialty Ins. Co.,\n -2-\n\f996 F.3d 912, 913 (8th Cir. 2021) (quoting Ritchie v. Allied Prop. & Cas. Ins. Co.,\n307 S.W.3d 132, 135 (Mo. banc 2009)).\n\n A.\n\n The starting point is the declarations page, which “state[s] the policy’s\nessential terms in an abbreviated form.” Owners Ins. Co. v. Craig, 514 S.W.3d 614,\n617 (Mo. banc 2017) (citation omitted). At the top, it lists Randy and Beverly as the\nnamed insureds. Farther down, it introduces the coverage limits. The row for\nunderinsured-motorist benefits sets a per-person limit of $250,000 and a total limit\nof $500,000 per “occurrence,” which the policy defines as “an accident that results\nin bodily injury or property damage.”\n\n When we “look elsewhere to determine the scope of coverage,” the policy\nexplains what it covers and when, the exclusions and limits of liability, and various\nother conditions. Id. (citation omitted). As relevant here, the “COVERAGE”\nsection extends underinsured-motorist coverage to “automobile[s] you do not own,”\nlike the company truck Randy was driving when the accident occurred. In those\nsituations, Auto-Owners “will pay compensatory damages, including but not limited\nto loss of consortium, you are legally entitled to recover from the owner or operator\nof any underinsured automobile for bodily injury you sustain.”\n\n Here, the key interpretive question is the identity of “you.” The policy defines\nthe term as “any named insured shown in the Declarations and . . . [the] named\ninsured’s spouse who resides in the same household.” 1 See Shelter Mut. Ins. Co. v.\nSage, 273 S.W.3d 33, 38 (Mo. Ct. App. 2008) (explaining that, in general,\n“definitions in an insurance policy are controlling as to the terms used within the\n\n 1\n The parties briefed and argued the case in the district court based on an earlier\nversion of the policy, which had a slightly different definition. It defined “you” as\n“the first named insured shown in the Declarations and . . . your spouse who resides\nin the same household.” Whichever version we apply, the outcome remains the\nsame.\n -3-\n\fpolicy”). Including both Randy and Beverly, as the definition does, yields two\nreasonable interpretations, one that blocks Beverly from recovering\nloss-of-consortium damages and another that allows it.\n\n 1.\n\n The first is the district court’s interpretation, which results in Auto-Owners\nowing her nothing. The scope-of-coverage provision, quoted above, requires\nAuto-Owners to pay “you” underinsured-motorist benefits, including for loss of\nconsortium, “for bodily injury you sustain.” (Emphases added). If Beverly has\nsustained no “bodily injury,” then she cannot receive “compensatory damages,” for\nloss of consortium or otherwise. Getting there requires the “you” entitled to\ncompensatory damages to be the same “you” that suffered bodily injury. See\nShaffner v. Farmers Mut. Fire Ins. Co. of St. Clair Cnty., 859 S.W.2d 902, 907 (Mo.\nCt. App. 1993) (“When words are used in one sense in one part of a contract, and\nsuch words are again used in the same contract, they are as a general rule deemed to\nhave been used in the same sense as in the first instance.” (citation omitted)). It is a\nstraightforward application of the presumption of consistent usage. See Antonin\nScalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 170\n(2012) (describing the canon); cf. 3M Co. v. Comm’r, 154 F.4th 574, 580 (8th Cir.\n2025) (applying it to a statute).\n\n One other textual clue supports this reading. Underinsured-motorist benefits\nare “for bodily injury you sustain.” (Emphasis added). Read literally, the use of the\nword “for,” which means “because” or “on account of,” implies that all\ncompensatory damages flow from the bodily injury of whomever suffers it.\nWebster’s Third New International Dictionary 886 (2002). Under this view, any\nloss-of-consortium payments to Beverly, to the extent they are available, would\n“necessarily and inseparably follow[]” Randy’s recovery, just as the district court\nconcluded. Cf. Ward v. Am. Fam. Ins. Co., 783 S.W.2d 921, 923 (Mo. Ct. App.\n1989) (noting that, “[u]nder Missouri Law, a husband’s claim for loss of consortium\nis derivative of his wife’s claim for bodily injury” in the sense that it does not stem\n -4-\n\ffrom “a separate and distinct ‘bodily injury’”). It would make Beverly’s recovery\n“derivative” of whatever Randy receives, subjecting everything that can be\nrecovered to his $250,000 per-person limit. Id.\n\n 2.\n\n Although the district court’s interpretation is reasonable, so is another one. It\ncomes from the interplay between the policy’s scope-of-coverage provision, which\n“includ[es] . . . loss of consortium,” and Missouri’s treatment of those claims. Under\nMissouri law, “[t]he cause of action for loss of consortium seeks to compensate the\nuninjured spouse.” Kingman v. Dillard’s, Inc., 643 F.3d 607, 615 (8th Cir. 2011)\n(emphasis added); see Thompson v. Brown & Williamson Tobacco Corp., 207\nS.W.3d 76, 113 (Mo. Ct. App. 2006) (explaining that “for one spouse to recover for\nloss of consortium, the other spouse must have a valid claim for personal injury”\n(emphasis added)). The idea is that this background principle allows Beverly, who\nis the “uninjured spouse,” Kingman, 643 F.3d at 615, to recover these damages, so\nthe insurance policy must reflect that understanding too, absent language to the\ncontrary. See Cano v. Travelers Ins. Co., 656 S.W.2d 266, 271 (Mo. banc 1983);\n2 Jordan R. Plitt et al., Couch on Insurance § 22:50 (3d ed. 2025 update) (explaining\nthat “where technical terms have a well-recognized legal meaning, they should be\nunderstood as used in their technical and legal sense, at least where neither the\ncontext nor any statutory or charter provision indicates a broader use”).\n\n The only potential stumbling block comes from the fact that each reference to\n“you” in the scope-of-coverage provision arguably refers to the same person. But a\ncloser look reveals that the definition has an “and” that can be read disjunctively.\nSee Burns v. Smith, 303 S.W.3d 505, 511 (Mo. banc 2010) (noting that “and” can\ntake meanings equivalent to “or”). As a reminder, it says that “[y]ou . . . means any\nnamed insured shown in the Declarations and . . . [the] named insured’s spouse who\nresides in the same household.” (Emphasis added). Each instance of “you” could\nbe Randy or Beverly in either role. See id. Read that way, a favorable interpretation\nfor Beverly emerges: “you [(Beverly)] are legally entitled to recover . . . for bodily\n -5-\n\finjury you [(Randy)] sustain[ed].” Randy’s bodily injury, in other words, becomes\nthe hook for the loss-of-consortium damages Beverly is trying to recover, consistent\nwith how Missouri has defined the cause of action.\n\n No longer would the $250,000 per-person limit be a barrier to recovery. See\nCano, 656 S.W.2d at 271. It is, after all, per person, allowing each spouse to recover\nfor their own damages subject to payments by the tortfeasor’s insurer and the\n$500,000 per-occurrence limit. See Maddox v. Truman Med. Ctr., Inc., 727 S.W.2d\n152, 154 (Mo. Ct. App. 1987) (“Though a consortium claim is derivative from the\ninjured spouse’s claim . . . the consortium claim and the underlying claim exist to\ncompensate the different losses the two spouses suffer.” (emphasis added)). It would\nnot matter that Beverly suffered no “bodily injury” herself. See Cano, 656 S.W.2d\nat 271; cf. Ward, 783 S.W.2d at 923–24 (discussing a different policy’s provisions,\nwhich placed a limit on “each person,” tied it to the “bodily injury sustained by [that]\nperson,” and made the “each[-]accident” amount “[s]ubject to the limit for each\nperson”).\n\n Nor would it result in the improper stacking of claims. “‘Stacking’ refers to\nan insured’s ability to obtain multiple insurance coverage benefits for an injury . . . .”\nRitchie, 307 S.W.3d at 135 (citation omitted). “An anti-stacking clause,” which is\nenforceable for underinsured-motorist coverage, “prohibits the insured from\ncollecting on multiple coverage items or policies from the same insurer for a single\naccident.” Hall v. Allstate Ins. Co., 407 S.W.3d 603, 608 (Mo. Ct. App. 2012)\n(citation omitted). The Auto-Owners policy has one that prevents the\nunderinsured-motorist coverage from increasing “regardless of . . . the number of\nautomobiles shown or premiums charged in the Declarations . . . [and] the number\nof claims made.”\n\n Here, the Grangers are not trying to circumvent the limits through stacking\nthe coverages on multiple vehicles. See, e.g., Ritchie, 307 S.W.3d at 135 (describing\nan insured seeking benefits for “two or more separate vehicles under separate\npolicies” or “one policy which covers more than one vehicle” as examples of\n -6-\n\fstacking). Rather, they are relying on the policy, read in light of Missouri law, to\nseek coverage for distinct losses suffered by each spouse from a single accident. See\nMaddox, 727 S.W.2d at 154 (explaining that loss-of-consortium and bodily-injury\nclaims “exist to compensate the different losses the two spouses suffer”). Through\nthis lens, Beverly’s reading of the policy is reasonable, even if it may not be the most\nobvious one. See Cano, 656 S.W.2d at 270–71 (reaching a similar conclusion about\na loss-of-consortium claim in an uninsured-motorist case).\n\n B.\n\n In sum, the Auto-Owners policy “is poorly drafted, leaving open a question\nof what it does and does not cover.” Am. Home Assurance Co. v. Pope, 591 F.3d\n992, 1001 (8th Cir. 2010); see Cano, 656 S.W.2d at 271. Fortunately, “Missouri law\ntells us what to do next.” Verto Med. Sols., 996 F.3d at 915. Under the canon of\ncontra proferentem, we construe any ambiguity “against the insurer,” the policy’s\ndrafter. Burns, 303 S.W.3d at 511–12; see Lutsky v. Blue Cross Hosp. Serv., Inc.,\n695 S.W.2d 870, 875 n.7 (Mo. banc 1985) (explaining that “inconsistent provisions\nwill be construed in favor of the insured”). In this case, it requires us to adopt the\ninterpretation of the policy that favors Beverly, which will allow her to recover\nloss-of-consortium damages.2 See Cano, 656 S.W.2d at 271.\n\n\n\n\n 2\n Auto-Owners contends that we should nonetheless affirm, because Beverly\nfailed to exhaust her claim with the other motorist’s insurance policy before looking\nto her own. One problem is that we do not know whether the other policy makes\nloss-of-consortium damages available. Nor, even if it does, whether the $25,000\npayment to Randy exhausted its limits. See Ward, 783 S.W.2d at 923 (explaining\nthat, in another policy, loss of consortium was subject to the same limit as bodily\ninjury). Without answers to these questions and others, we decline to decide the case\nbased on her alleged failure to exhaust. See Cont’l Cas. Co. v. State Farm Mut. Auto.\nIns. Co., 868 S.W.2d 547, 548–49 (Mo. Ct. App. 1993) (refusing to reach issues that\ndepended on the interpretation of a policy that was not in the record at summary\njudgment).\n -7-\n\f III.\n\n In the absence of any genuine issue of material fact, we reverse the district\ncourt’s judgment and remand for the entry of judgment in Beverly’s favor. See\nChamness v. Am. Fam. Mut. Ins. Co., 226 S.W.3d 199, 208 (Mo. Ct. App. 2007)\n(reversing and remanding with directions to enter judgment in the insured’s favor\nafter concluding that a policy was ambiguous).\n ______________________________\n\n\n\n\n -8-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11240964/", "author_raw": "STRAS, Circuit Judge."}]}	COLLOTON	ERICKSON	STRAS	1		{"COLLOTON": ", Chief", "ERICKSON": ", Circuit", "STRAS": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10774379/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,774,924	United States v. Nathaniel Azure	2026-01-15	24-2363	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Before SMITH, KELLY, and GRASZ, Circuit Judges.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 24-2363\n ___________________________\n\n United States of America\n\n Plaintiff - Appellee\n\n v.\n\n Nathaniel Patrick Azure\n\n Defendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the District of North Dakota - Eastern\n ____________\n\n Submitted: October 20, 2025\n Filed: January 15, 2026\n [Published]\n ____________\n\nBefore SMITH, KELLY, and GRASZ, Circuit Judges.\n ____________\n\nPER CURIAM.\n\n Nathaniel Patrick Azure was convicted of six firearms-related crimes within\nthe Spirit Lake Reservation. On appeal, he challenges the district court’s 1 denial of\n\n\n 1\n The Honorable Peter D. Welte, Chief Judge, United States District Court for\nthe District of North Dakota.\n\fhis motion for mistrial based on prosecutorial misconduct and its admission of\nFacebook records. We affirm.\n\n I. Background\n Azure was charged with three counts of assault with a dangerous weapon, in\nviolation of 18 U.S.C. §§ 113(a)(3) and 1153, and three counts of discharging or\nbrandishing a firearm during and in relation to a crime of violence, in violation of\n18 U.S.C. § 924(c). The counts concerned Azure shooting Dexter Greywind on\nJanuary 6, 2021; pulling a gun on Lance Cavanaugh (Lance) on May 21, 2022; and\nshooting Daniel Cavanaugh (Daniel) on May 22, 2022, on the Spirit Lake\nReservation.\n\n Prior to trial, the government notified Azure of its intent to introduce his\ncertified Facebook records. Those records related to the May 22 shooting. Azure\nobjected, arguing that the certification lacked information enabling him “to verify\nthe veracity of Hiralys Alvarez’s [the alleged Meta Custodian of Records] identity,\nemployment, or role (if any) at Meta.” R. Doc. 138, at 5.\n\n At the final pretrial conference, Azure asserted that the Facebook certification\nwas “insufficient to establish authenticity.” R. Doc. 236, at 26. Azure acknowledged\nthat “there’s a declaration of certification” but argued that “there is no way to contact\nHOR-al-is (phonetic) Alvarez at Meta to determine if there is, in fact, even a HOR-\nal-is (phonetic) Alvarez that exists. And, in fact, getting through to Meta is nearly\nimpossible to try to do that.” Id. at 27. The government responded that, in addition\nto the certification, it would offer “additional information linking [Azure] to the\nrecord.” Id. at 28. Specifically, witnesses would “testify that they reached out to\n[Azure] via this Facebook account.” Id. The district court overruled Azure’s\nobjection. The court reasoned that the Facebook records “are self-authenticating and\nwitness testimony is not required for their authentication but there may be a need to\ntie it up with other evidence.” Id. at 29. The court noted that Azure was not precluded\nfrom raising the objection again during trial.\n\n\n -2-\n\f Azure then supplemented his authentication objection by observing that “the\nrule requires that the defendant have a fair opportunity to confront these\ncertifications. And when we get a declaration that . . . contains no effective means\nto contact the person that is declaring and certifying these records, there is no fair\nopportunity to confront the certification.” Id. at 30. In response, the government\nrepresented that it “could certainly try to find contact information for this individual”\nbut noted that “[t]he agent will testify that he reached out to Meta and received this\ncertification through her. He doesn’t get to choose who certifies it. . . . [I]t’s all done\nthrough a portal. It gets assigned a number and that’s how it’s done, Your Honor.”\nId. The court decided to “forge ahead,” explaining that “the state of the law is clear\nwith regards to the Eighth Circuit and the Facebook records.” Id. The court\nmaintained its ruling.\n\n At trial, the government questioned FBI Special Agent Daniel Genck about\nthe Facebook records. Agent Genck confirmed that he had “gone to Facebook for\nrecords a number of times throughout [his] career.” R. Doc. 226, at 49. Agent Genck\nexplained that he used “the Facebook law enforcement portal,” which is “a website\nthat Facebook runs that allows law enforcement to make legal requests to Facebook\ndirectly.” Id. at 50. Agent Genck testified that when making a preservation request\nto Facebook, he provides Facebook with a “unique number” associated with a\nFacebook account. Id. at 51. Facebook then freezes the account. This “freeze,” Agent\nGenck confirmed, “is like a snapshot in time of what the account looks like in that\nmoment.” Id. at 51–52. Facebook sent Agent Genck an “acknowledgment that [it]\nreceived [his] preservation request” for the “account that [he] believed [belonged to]\nNathaniel Azure.” Id. at 52–53.\n\n According to Agent Genck, he subsequently sought “records pursuant to a\nfederal court order . . . related to that particular account” with the “unique identifier.”\nId. at 53. Once again, Agent Genck used the law enforcement portal to advise\nFacebook that he had a court order requiring it to comply. Pursuant to the court order,\nAgent Genck sought information for a three-day period of time and requested the\nsubscriber names; user names; screen names; mailing addresses; residential\n -3-\n\faddresses; business addresses; email addresses; records of session times and\ndurations; “the temporarily assigned network addresses such as internet protocol or\nIP addresses associated with those sessions”; the registration IP address; and the\n“records of user activity for each connection made to or from the account[,]\nincluding log files, messaging logs, the date/time, length and methods of\nconnections, data transfer volume, user names[,] and source and destination IP\naddresses.” Id. at 55.\n\n Agent Genck confirmed that Facebook provided him with “responsive\nbusiness records.” Id. at 56. Along with “11 pages of records,” Facebook “also\nprovide[d] [Agent Genck] with a Certificate of Authenticity saying that these are, in\nfact, a copy of the business records that [Facebook] ha[s] that relate to this time\nperiod that this Court Order states and these subjects of information that this Court\nOrder states [Facebook] ha[s] to provide.” Id. at 57. Agent Genck confirmed that\n“Government’s Exhibit 47” was the “records that [Facebook] sent to [Agent\nGenck].” Id. The government then offered Exhibit 47 into evidence, but Azure\nrenewed his objection based on the “foundational problem.” Id. at 58. The court\noverruled the objection and received Exhibit 47 into evidence, explaining that the\ngovernment established foundation “through testimony, through certification[,] and\nthrough the testimony at trial.” Id.\n\n During trial, the government also questioned Agent Genck about law\nenforcement’s investigation and collection of physical evidence. During this line of\nquestioning, the government asked Agent Genck whether Azure consented to a\nbuccal swab for DNA testing purposes:\n\n Q. Nevertheless did you at one point try to obtain a buccal\n swab by consent from the defendant?\n\n A. I did.\n\n Q. And when did that happen?\n\n\n -4-\n\f A. When he was arrested. As part of the booking process with\n the U.S. Marshals Service, there’s a mandatory DNA sample that’s\n taken from every arrestee. As part of that I also asked him separate and\n aside from this: Would you consent to DNA so that we could search the\n evidence in this case? And he declined.\n\n Q. A mandatory part can’t be submitted for testing because\n it’s mandatory?\n\n A. Correct.\n\n Q. But you asked him for a supplementary one that you could\n submit for testing if he consented?\n\n A. Yes.\n\n Q. And he did not?\n\n A. Correct.\n\n Q. And what is a buccal swab?\n\n A. It’s a mouth swab, usually a cotton swab of both sides of\n the cheek. We usually do two samples each and submit those.\n\nR. Doc. 225, at 289–90. After this inquiry, the district court ended witness testimony\nfor the day. Azure’s counsel never objected during this line of inquiry.\n\n Before proceedings commenced the next morning, however, Azure filed a\nmotion for mistrial or curative instruction based on prosecutorial misconduct for\nasking Agent Genck whether Azure consented to the buccal swab. The government\nopposed the motion. The court recessed so that it could review Azure’s written\nmotion. Following the recess, the court afforded each party an opportunity to briefly\nargue their positions on the motion. Azure’s counsel specified that Azure’s challenge\nwas to “the evidence that was not consented to or any testimony regarding not having\nconsent with that,” as well as Agent Genck’s testimony “on Mr. Azure’s right to\nremain silent and not give an explanation for certain activities that he may or may\n -5-\n\fnot have been a part of.” R. Doc. 226, at 13. Azure’s counsel asserted that mistrial\nwas the appropriate remedy or, in the alternative, a curative jury instruction. Azure’s\ncounsel requested a curative instruction be given then and at the trial’s conclusion.\n\n The court denied the motion for mistrial but granted the motion for a curative\njury instruction. First, it found that the government did not intend to “deliberately\nprovoke a mistrial.” Id. at 19 (citing Oregon v. Kennedy, 456 U.S. 667, 675–76\n(1982) (“Prosecutorial conduct that might be viewed as harassment or overreaching,\neven if sufficient to justify a mistrial on defendant’s motion, therefore, does not bar\nretrial absent intent on the part of the prosecutor to subvert the protections afforded\nby the Double Jeopardy Clause.”)). The court determined that the government “took\ngreat pains to elicit testimony regarding the integrity and the fidelity of the\ninvestigation itself.” Id. It found “that the line of questioning was not improper.” Id.\nat 20. The court also noted that Azure never objected to Agent Genck’s testimony.\nSecond, the court assumed that even if the prosecutor’s line of questioning was\nimproper, it would nonetheless deny the motion for mistrial based on “the\ncumulative effect of the alleged misconduct, . . . the strength of properly admitted\nevidence in this case[,] and . . . [the] curative actions that are options of the [c]ourt.”\nId. at 21. Finally, “[i]n an abundance of caution,” id., the court issued the following\ncurative instruction to the jury when testimony resumed:\n\n Ladies and gentlemen, you heard testimony that the Defendant would\n not consent to the taking of his DNA. The United States Constitution\n guarantees its citizens the right to be free from unreasonable searches.\n Without a warrant, citizens are free to refuse to consent to the\n government’s request to search their persons. A person may refuse to\n consent to the taking of DNA, and you may not consider whether the\n Defendant’s refusal to consent to the taking of his DNA as evidence of\n guilt.\n\nId. at 25–26. Neither party objected to the court’s curative instruction. The court\nrepeated the instruction in its final instructions to the jury. See R. Doc. 169, at 29.\n\n\n\n -6-\n\f The jury convicted Azure, and the district court sentenced him to 384 months’\nimprisonment.\n\n II. Discussion\n On appeal, Azure challenges the district court’s denial of his motion for\nmistrial based on prosecutorial misconduct and its admission of the Facebook\nbusiness records.\n\n A. Prosecutorial Misconduct\n “We review for an abuse of discretion the district court’s denial of a\ndefendant’s motion for mistrial on the basis of prosecutorial misconduct.” United\nStates v. Kopecky, 891 F.3d 340, 343 (8th Cir. 2018). “The test for reversible\nprosecutorial misconduct has two parts: (1) the prosecutor’s remarks or conduct\nmust in fact have been improper, and (2) such remarks or conduct must have\nprejudicially affected the defendant’s substantial rights so as to deprive the\ndefendant of a fair trial.” United States v. Hernandez, 779 F.2d 456, 458 (8th Cir.\n1985). We evaluate three factors in determining whether the defendant was deprived\nof a fair trial. Kopecky, 891 F.3d at 343. First, we consider “the cumulative effect of\nthe misconduct.” Id. Second, we consider “[t]he strength of the properly admitted\nevidence.” Id. Finally, we consider any of the district court’s “curative actions.” Id.\n“The ultimate question is whether the prosecutor’s comments, if improper, so\ninfected the trial with unfairness as to make the resulting conviction a denial of due\nprocess.” Id. (quoting United States v. New, 491 F.3d 369, 377 (8th Cir. 2007)).\n\n “Here, even assuming the prosecutor’s line of questioning was improper, the\ndistrict court did not abuse its discretion in denying [Azure’s] motion for mistrial\nbecause the exchange did not prejudicially affect his right to a fair trial.” Id. (footnote\nomitted). First, the exchange between the government and Agent Genck concerning\nwhether Azure consented to the buccal swab was “brief” with “little potential for\nprejudicial effect in light of the whole trial.” Id. The brief exchange consisted of the\ngovernment asking, “But you asked him for a supplementary [buccal swab] that you\ncould submit for testing if he consented?” R. Doc. 225, at 290. Agent Genck\n -7-\n\fresponded, “Yes.” Id. The government then asked, “And he did not?” Id. Agent\nGenck answered, “Correct.” Id.; see also Kopecky, 891 F.3d at 343 (“The testimony\nin question constituted a single, short, isolated exchange in the context of a several-\nday trial: ‘Did you get consent?’ ‘I did not.’”).\n\n “Second, the [g]overnment presented strong, independent evidence of\n[Azure’s] guilt.” Kopecky, 891 F.3d at 343. “The key participants who were with\nAzure at the time of his crimes testified.” Appellee’s Br. 31.2 The government also\npresented documentary, 3 physical,4 and forensic5 evidence to establish Azure’s guilt.\nAppellee’s Br. 33–35.\n\n\n\n\n 2\n These witnesses included Michael Denne, his brother, and Peyton\nWalkingeagle, who testified about the January 6 shooting of Greywind; codefendant\nDantae Whitetail, who testified about the May 21 incident with Lance; and\nD’Angelo Littlewind, Azure’s cousin, who testified about being with Azure just\nprior to the shooting of Daniel. Additionally, Greywind, Lance, and Daniel—the\nvictims of the crimes—all testified. And Blossom Harrison, Taylah Thumb, Larissa\nDunn, and Brittany Lawrence, bystanders to the various crimes, testified about what\nthey saw and heard on the dates in question. In addition to these witnesses, four\nBureau of Indian Affairs (BIA) officers and two FBI agents testified about the results\nof their investigation.\n 3\n Gov’t Ex. 4 (map identifying location of the shotgun in January 2021); Gov’t\nExs. 11–18 (photographs of injuries sustained by Greywind and Daniel); Gov’t Ex.\n66 (photographs of May 22 crime scene); Gov’t Exs. 49–52 (maps of the places\nwhere events took place); Gov’t Exs. 53–55 (surveillance videos); Gov’t Exs. 5, 70\n(photograph of Azure taken in May 2022 and photograph of another “Nathaniel”\nwhom Azure tried to implicate); Gov’t Exs. 61–65 (video calls between Azure and\nothers while he was in jail after the May 22 shooting).\n 4\n Gov’t Exs. 1, 2 (two firearms that were used in the commission of the\ncrimes); Gov’t Ex. 3 (shell casing found at the scene).\n 5\n Gov’t Ex. 35 (lab report dated January 24, 2023, of firearm); Gov’t Ex. 37\n(visual aid prepared by firearms and toolmarks expert).\n -8-\n\f Finally, the district court issued an unobjected-to curative instruction once\nAzure raised the issue of prosecutorial misconduct the day following Agent Genck’s\ntestimony about the buccal swab. “We presume that juries follow a court’s\ninstructions, and we are satisfied that the court’s curative actions here dispelled any\npotential for undue prejudice stemming from the improper remarks.” Kopecky, 891\nF.3d at 344 (citation modified).\n\n “On the basis of these three considerations, we find that the brief exchange\nbetween the prosecutor and [Agent Genck] was not so prejudicial as to deprive\n[Azure] of a fair trial.” Id.\n\n B. Facebook Records\n Azure claims that the certifications provided by the government failed to\ninclude any contact information for the individual certifying the Facebook records\nand therefore should not have been admitted.\n\n “We review the district court’s admission of evidence for abuse of discretion.\nWe give great deference to the ruling of the trial court.” United States v. Lamm, 5\nF.4th 942, 946 (8th Cir. 2021) (citation modified). Reversal is only appropriate\n“when an improper evidentiary ruling affected the defendant’s substantial rights or\nhad more than a slight influence on the verdict.” United States v. Perez, 61 F.4th\n623, 626 (8th Cir. 2023) (quoting United States v. Omar, 786 F.3d 1104, 1112 (8th\nCir. 2015)).\n\n “To satisfy the requirement of authenticating or identifying an item of\nevidence, the proponent must produce evidence sufficient to support a finding that\nthe item is what the proponent claims it is.” Fed. R. Evid. 901(a). “Testimony that\nan item is what it is claimed to be” “satisfies the requirement.” Fed. R. Evid.\n901(b)(1). “[E]vidence that satisfies the requirement” also includes “[t]he\nappearance, contents, substance, internal patterns, or other distinctive characteristics\nof the item, taken together with all the circumstances.” Fed. R. Evid. 901(b)(4). “The\nparty authenticating the exhibit need only prove a rational basis for that party’s claim\n -9-\n\fthat the document is what it is asserted to be. Authentication may be established by\ncircumstantial evidence.” Lamm, 5 F.4th at 946–47 (citation modified). “To\nauthenticate evidence, a party must clear only a low bar.” Id. at 947 (citation\nmodified). “Conclusive proof of authenticity is not required, and once the threshold\nrequirement is met, any question as to whether the evidence is authentic is for the\njury.” Perez, 61 F.4th at 626 (citation modified).\n\n “As we have recognized, the ‘authentication of social media evidence presents\nsome special challenges because of the great ease with which a social media account\nmay be falsified or a legitimate account may be accessed by an imposter.’” United\nStates v. Midder, 139 F.4th 649, 652 (8th Cir. 2025) (quoting Perez, 61 F.4th at 626).\n“[A] certification from a social media platform alone is insufficient to establish\nauthenticity.” Perez, 61 F.4th at 626. But “the [g]overnment may authenticate social\nmedia evidence with circumstantial evidence linking the defendant to the social\nmedia account.” Lamm, 5 F.4th at 948.\n\n We conclude that the government’s evidence provided a rational basis for its\nclaim that the Facebook records were for Azure’s account, which he used around the\ntime of the May 22 shooting of Daniel. First, BIA Special Agent Jerry Lenoir\ntestified that Lance showed him a particular Facebook profile, which he then\ncaptured by screenshot. The screenshot was admitted into evidence as Government’s\nExhibit 19. Agent Lenoir confirmed that “the first page of Exhibit 19 reflects the\nprofile name of a Facebook account” and that “the second page reflects the unique\nFacebook identifier,” which law enforcement used “to preserve [the] account.” R.\nDoc. 223, at 16–17.\n\n Second, Lance testified that after Daniel’s shooting, he messaged Azure on\nthe Facebook profile identified in Exhibit 19. According to Lance, he recognized\nsome of Azure’s “friends” on the profile. R. Doc. 225, at 51. One of those “friends”\nwas D’Angelo Littlewind, whom Lance described as Azure’s “little cousin,” id. at\n\n\n\n -10-\n\f28, and “little brother,” id. at 51.6 Lance confirmed that “the user of the Nathaniel\nAzure account read the messages,” but Azure never responded. R. Doc. 225, at 53.\n\n Third, the minor sister of Azure’s then-girlfriend testified about seeing\nFacebook messages that Azure sent to her sister, Skyla Cavanaugh, asking her to\npick him up on May 22, 2022. According to the minor sister, she was using Skyla’s\nphone while Skyla was taking a nap. She noticed that the phone was receiving\nFacebook “messages and calls” from Azure. R. Doc. 224, at 47. The minor sister\ntestified that in the Facebook messages, Azure asked Skyla “if she could go get him.”\nId. The minor sister knew that the Facebook messages were from Azure because\n“[h]is name popped up.” Id. Azure also placed “audio calls that [were] received\nthrough Facebook” to Skyla’s phone. Id. at 48. Once again, the minor sister knew\nthe calls were from Azure because “[h]is name popped up.” Id.\n\n Fourth, Agent Genck testified that Facebook is “the most common . . .\ncommunication method used on the Spirit Lake Reservation” because of its lack of\ncost, compatibility with Wi-Fi, and ease of use across mobile devices. R. Doc. 226,\nat 47–48. Through Facebook’s law enforcement portal, Agent Genck had Facebook\npreserve records. In response to legal process, Facebook provided records through\nthe portal to Agent Genck, with a certificate of authenticity (Exhibit 47).\n\n Fifth, once Exhibit 47 was admitted into evidence, Agent Genck testified that\n“whomever set up the [Facebook] account” used “the first name . . . Nathaniel [and]\nthe last name Azure.” Id. at 58–59. When Agent Genck saw this information, he\nrecalled Lance’s statement that “he [had] messaged Nathaniel Azure’s Facebook\naccount” and provided law enforcement with “this number.” Id. at 59. Agent Genck\nnoted that “whoever set up the [Facebook] account used the name Nathaniel Azure.\nSo it follow[ed] . . . that this might be the correct account.” Id. Agent Genck\nconfirmed that he “had seen the . . . landing page for that Facebook account even\nbefore [he] sought [the Facebook records] and saw that picture of D’Angelo\n\n\n 6\n Littlewind testified that he and Azure are cousins. R. Doc. 224, at 204.\n -11-\n\fLittlewind as one of the friends.” Id. This gave “further credence” that this was\nAzure’s account. Id. Exhibit 47 also contained an IP address used to access the\naccount. Agent Genck confirmed that he was “really focused . . . on figuring out\nwhere . . . th[e] IP address was located that was used to access this Facebook account\nafter the shooting.” Id. at 69. The IP address pointed to Ross Acres, a neighborhood\nnear the neighborhood in St. Michael where the May 22 shooting occurred. The\nsubscriber records showed that one of Azure’s relatives lived at the address in Ross\nAcres where that IP address was assigned. The back of the relative’s property\n“butt[ed] up to the property of . . . Nathaniel’s aunt.” Id. at 82. Agent Genck testified\nthat the Facebook account access location was important because he was “looking\ninto [Azure’s] supposed alibi.” Id. at 69. Law enforcement never obtained the\n“content” of any Facebook messages; instead, Agent Genck testified that only\n“subscriber and account information” were provided. Id.\n\n “Taken together, this evidence provided a rational basis for the district court\nto pass the question of authentication [of the Facebook records] to the jury.” Lamm,\n5 F.4th at 948. The district court did not abuse its discretion in admitting the\nFacebook records. 7\n\n III. Conclusion\n Accordingly, we affirm the judgment of the district court.\n ______________________________\n\n\n 7\n Azure argues that he did not have “a fair opportunity to challenge the\npurported certificate,” but he does not explain why the information provided was not\nsufficient to allow him to “verify the veracity” of the custodian’s “identity,\nemployment, or role (if any) at Meta.” Appellant’s Br. 17. Even assuming that the\ndistrict court erred in not affording Azure the opportunity to challenge the certificate,\nsuch error was harmless. See Fed. R. Crim. P. 52(a) (“Any error . . . that does not\naffect substantial rights must be disregarded.”). As explained, the government\npresented sufficient circumstantial evidence linking Azure to the Facebook account,\nand Azure does not offer any suggestion as to how “verifying the veracity” of the\ncustodian’s name, employment, and role at Meta might have called into question that\nevidence.\n -12-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11241509/", "author_raw": "PER CURIAM"}]}	SMITH	KELLY	GRASZ	1		{"SMITH": ", Circuit", "KELLY": ", Circuit", "GRASZ": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10774924/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,775,419	United States v. Patrick Newcomer	2026-01-16	25-1088, 25-1089	U.S. Court of Appeals for the Eighth Circuit	{"judges": "Before BENTON, GRASZ, and STRAS, Circuit Judges.", "parties": "", "opinions": [{"author": "BENTON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 25-1088\n ___________________________\n\n United States of America\n\n Plaintiff - Appellee\n\n v.\n\n Patrick Newcomer\n\n Defendant - Appellant\n ___________________________\n\n No. 25-1089\n ___________________________\n\n United States of America\n\n Plaintiff - Appellee\n\n v.\n\n Patrick Newcomer\n\n Defendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the District of Nebraska - Omaha\n ____________\n\n Submitted: November 18, 2025\n Filed: January 16, 2026\n ____________\n\fBefore BENTON, GRASZ, and STRAS, Circuit Judges.\n ____________\n\nBENTON, Circuit Judge.\n\n While on supervised release for two separate federal convictions, Patrick J.\nNewcomer was convicted for new state crimes. The district court1 revoked that\nsupervised release and, as relevant, imposed 12 months of supervised release for\neach conviction, to run consecutively. Newcomer argues that the latest supervised\nrelease can run only concurrently. Having jurisdiction under 28 U.S.C. § 1291, this\ncourt affirms the revocation sentence.\n\n I.\n\n On September 12, 2019, Newcomer burglarized a Post Office, stealing\npackages and envelopes, causing a loss of $3,507.62, and impacting 56 victims.\n\n On September 26, 2019, searching his residence, officers found a firearm,\nwhich he, a felon, could not possess. Newcomer was federally charged for the two\nseparate crimes.\n\n The district court sentenced Newcomer to 30 months in prison on each count,\nto be served concurrently. The court imposed two concurrent 36-month terms of\nsupervised release, including a mandatory prohibition against committing new\ncrimes.\n\n Once out of prison, Newcomer did not succeed on his terms of supervised\nrelease. In 2024, he was found guilty in state court of two more counts of burglary\nand of possession of a firearm by a prohibited person.\n\n\n 1\n The Honorable Robert F. Rossiter, Jr., Chief Judge, United States District\nCourt for the District of Nebraska.\n -2-\n\f The district court revoked his supervised release. Concerned with his\nrecidivism, it imposed 24 months’ imprisonment for each of the two federal\nconvictions, to run concurrently to each other and consecutively after the state\nconvictions. The court imposed 12 months of supervised release for each federal\nconviction—to run consecutively.\n\n Newcomer argues that terms of supervised release must run concurrently.\n\n II.\n\n “In the Sentencing Reform Act of 1984, § 212(a)(2), 98 Stat. 1999, Congress\neliminated most forms of parole in favor of supervised release . . . .” Johnson v.\nUnited States, 529 U.S. 694, 696–97 (2000). “Supervised release is a form of\npostconfinement monitoring that permits a defendant a kind of conditional liberty\nby allowing him to serve part of his sentence outside of prison, subject to conditions\non his behavior.” Esteras v. United States, 606 U.S. 185, 192 (2025) (internal\nquotation marks omitted), quoting Mont v. United States, 587 U.S. 514, 523 (2019).\nIf a defendant violates the conditions of supervised release, the district court may\nimpose “both [a term of] imprisonment and a further term of supervised release” if\nit does not exceed “the term authorized . . . for the offense of conviction, minus the\naggregate amount of any revocation terms of imprisonment.” United States v.\nPalmer, 380 F.3d 395, 398–99 (8th Cir. 2004) (en banc). See also United States v.\nDailey, 113 F.4th 850, 857 (8th Cir. 2024). This court reviews de novo the legality\nof Newcomer’s revocation sentence, a matter that turns on the interpretation of 18\nU.S.C. § 3583. See Palmer, 380 F.3d at 396.\n\n III.\n\n Newcomer argues that the consecutive terms of supervised release are\nunlawful under 18 U.S.C. § 3624(e).\n\n\n\n -3-\n\f The term of supervised release commences on the day the person is\n released from imprisonment and runs concurrently with any Federal,\n State, or local term of probation or supervised release or parole for\n another offense to which the person is subject or becomes subject\n during the term of supervised release. . . .\n\n18 U.S.C. § 3624(e) (emphasis added).\n\n Newcomer believes that § 3624(e) governs this case. It does not. It prohibits\nconsecutive terms of supervised release at the original imposition of supervised\nrelease. See United States v. Johnson, 529 U.S. 53, 58–59 (2000); United States v.\nGullickson, 982 F.2d 1231, 1235–36 (8th Cir. 1993). It does not govern sentencing\nfor revocations of supervised release. See United States v. Cotroneo, 89 F.3d 510,\n513 (8th Cir. 1996) (“Section 3624(e) thus by its terms governs the trial court’s initial\nimposition of terms of supervised release, not its subsequent sentencing discretion\nupon revocation of that supervised release.”).\n\n The supervised release imposed here, in a revocation hearing, is not “for\nanother offense.” “In the context of a revocation hearing, the ‘offense’ is the\nunderlying crime of conviction, not the violation of the supervised-release\nconditions.” Esteras, 606 U.S. at 193–94. See id. at 194 (“The opening provision\nof Title 18’s sentencing chapter clearly uses ‘offense’ to refer to a criminal\nconviction.”); Kellogg Brown & Root Servs., Inc. v. United States ex rel. Carter,\n575 U.S. 650, 658 (2015) (“The term ‘offense’ is most commonly used to refer to\ncrimes.”). The offenses underlying the revocation here are the two original, federal\nconvictions. 18 U.S.C. § 3624(e) is inapplicable here.\n\n 18 U.S.C. § 3583 “governs the imposition of original terms of supervised\nrelease, revocation of supervised release, and postrevocation sentencing.” United\nStates v. Zoran, 682 F.3d 1060, 1062 (8th Cir. 2012). Section 3583(e)(3) states, as\nrelevant:\n\n\n\n -4-\n\f The court may . . . revoke a term of supervised release, and require the\n defendant to serve in prison all or part of the term of supervised release\n authorized by statute for the offense that resulted in such term of\n supervised release without credit for time previously served on\n postrelease supervision, if the court, pursuant to the Federal Rules of\n Criminal Procedure applicable to revocation of probation or supervised\n release, finds by a preponderance of the evidence that the defendant\n violated a condition of supervised release . . . .\n\nSection 3583(h) states:\n\n When a term of supervised release is revoked and the defendant is\n required to serve a term of imprisonment, the court may include a\n requirement that the defendant be placed on a term of supervised release\n after imprisonment. The length of such a term of supervised release\n shall not exceed the term of supervised release authorized by statute for\n the offense that resulted in the original term of supervised release, less\n any term of imprisonment that was imposed upon revocation of\n supervised release.\n\n “We read 18 U.S.C. §§ 3583(e)(3) and (h) to mean what they plainly say.\nUpon revocation, a defendant may be sentenced to both imprisonment and a further\nterm of supervised release.” Palmer, 380 F.3d at 398. “Under § 3583(h), the district\ncourt was empowered to impose a new term of supervised release . . . .” Id. at 399.\nCongress did not state that the terms of postrevocation supervised release must run\nconcurrently. Instead, it limited only the total duration of the supervised release,\nleaving the imposition of postrevocation supervised release to the discretion of the\ndistrict courts. See 18 U.S.C. §§ 3583(b), (h).\n\n This aligns with Congress’s purpose: “Congress intended supervised release\nto assist individuals in their transition to community life. Supervised release fulfills\nrehabilitative ends, distinct from those served by incarceration.” Johnson, 529 U.S.\nat 59. Newcomer’s recidivism drove the district court to impose the two consecutive\nterms of supervised release. At the revocation hearing, the district court stated:\n\n\n -5-\n\f My concern here is not only the serious nature of what’s set forth in the\n state charges that you’ve pled guilty to now, but that it’s repetitive. It’s\n the same kind of -- same kind of things that you’ve been doing and --\n in the past and that you’ve been charged with in the past and most\n concerning is it was while you were on supervised release from this\n court.\n\n ....\n\n You will serve a period of supervised release on each of these matters\n -- or each of these cases of 12 months. And I think that ought to be\n consecutive. I don’t think 12 months, given what’s going on here, 12\n months total at the federal level is appropriate, so 12 months on each\n case, to be served consecutively, that supervision, and that is subject to\n the -- the same terms and conditions that you were under originally\n when your sentence was -- was given.\n\nThe district court intended the sentence to prevent further recidivism by Newcomer,\nbetter assisting his transition into his community. See Esteras, 606 U.S. at 196\n(“[W]hen a defendant violates the conditions of his supervised release, it makes\nsense that a court must consider the forward-looking ends of sentencing (deterrence,\nincapacitation, and rehabilitation) . . . .”).\n\n The district court properly imposed the two consecutive terms of supervised\nrelease.\n\n *******\n\n The judgment is affirmed.\n ______________________________\n\n\n\n\n -6-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11242005/", "author_raw": "BENTON, Circuit Judge."}]}	BENTON	GRASZ	STRAS	1		{"BENTON": ", Circuit", "GRASZ": ", Circuit", "STRAS": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10775419/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,768,252	Yonay v. Paramount Pictures Corporation	2026-01-02	24-2897	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Andrew D. Hurwitz, Eric D. Miller, and Jennifer Sung, Circuit Judges.", "parties": "", "opinions": [{"author": "MILLER, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\nSHOSH YONAY, an individual; No. 24-2897\nYUVAL YONAY, an individual,\n D.C. No.\n 2:22-cv-03846-\n Plaintiffs - Appellants,\n PA-GJS\n v.\n OPINION\nPARAMOUNT PICTURES\nCORPORATION,\n\n Defendant - Appellee.\n\n Appeal from the United States District Court\n for the Central District of California\n Percy Anderson, District Judge, Presiding\n\n Argued and Submitted June 3, 2025\n Pasadena, California\n\n Filed January 2, 2026\n\n Before: Andrew D. Hurwitz, Eric D. Miller, and Jennifer\n Sung, Circuit Judges.\n\n Opinion by Judge Miller\n\f2 YONAY V. PARAMOUNT PICTURES CORP.\n\n\n SUMMARY \n\n\n Copyright\n\n The panel affirmed the district court’s grant of summary\njudgment for Paramount Pictures Corporation in an action\nbrought under the Copyright Act by Shosh and Yuval\nYonay, owners of the copyright in “Top Guns,” a 1983\nmagazine article by Ehud Yonay about the United States\nNavy Fighter Weapons School, popularly known as “Top\nGun.”\n Plaintiffs alleged that Paramount’s 2022 movie Top\nGun: Maverick, a sequel to the 1986 movie Top Gun,\ninfringed their copyright. The panel affirmed the district\ncourt’s conclusion that Maverick did not share substantial\namounts of the original expression of “Top Guns,” and\nplaintiffs therefore failed to establish a triable issue as to\nsubstantial similarity, as required to establish copyright\ninfringement. The panel concluded that there was a lack of\nsimilarity in protectable elements of the article, and plaintiffs\ndid not establish an original and protectable selection and\narrangement of elements.\n The panel held that the district court did not abuse its\ndiscretion in excluding plaintiffs’ expert and allowing\nParamount’s expert.\n Finally, the panel held that the district court properly\ngranted summary judgment for Paramount on plaintiffs’\n\n\n\n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\f YONAY V. PARAMOUNT PICTURES CORP. 3\n\n\nclaim that Paramount breached its 1983 agreement with\nEhud Yonay by not crediting him in the 2022 movie.\n\n\n\n COUNSEL\n\nAlex Kozinski (argued), Law Office of Alex Kozinski,\nRancho Palos Verdes, California; Jaymie Parkkinen and\nMarc Toberoff, Toberoff & Associates PC, Malibu,\nCalifornia; for Plaintiffs-Appellants.\nMolly M. Lens (argued), Daniel Petrocelli, Danielle R.\nFeuer, and Matthew Kaiser, O'Melveny & Myers LLP, Los\nAngeles, California, for Defendant-Appellee.\nStefan C. Love, Greines Martin Stein & Richland LLP, Los\nAngeles, California, for Amicus Curiae National Society of\nEntertainment and Arts Lawyers.\n\f4 YONAY V. PARAMOUNT PICTURES CORP.\n\n\n OPINION\n\nMILLER, Circuit Judge:\n\n Shosh and Yuval Yonay own the copyright in “Top\nGuns,” a 1983 magazine article by Ehud Yonay about the\nUnited States Navy Fighter Weapons School, popularly\nknown as “Top Gun.” They sued Paramount Pictures\nCorporation, alleging that its 2022 movie Top Gun:\nMaverick infringed that copyright. “Top Guns” and\nMaverick do share some similarities because they both\ndepict the Navy’s real fighter-pilot training program. But\ncopyright plaintiffs must show more than an allegedly\ninfringing work’s general similarity to their own. They must\nshow that what is similar is their original expression.\nBecause Maverick does not share substantial amounts of the\noriginal expression of “Top Guns,” we affirm the district\ncourt’s grant of summary judgment for Paramount.\n I\n In 1983, California Magazine published “Top Guns,” an\n11-page article by Ehud Yonay about the Fighter Weapons\nSchool, later renamed the Strike Fighter Tactics Instructor\nProgram, a Navy program that teaches advanced air-combat\ntactics. (We refer to Ehud Yonay as “Yonay” and to Shosh\nand Yuval Yonay, Yonay’s heirs and the plaintiffs here, as\n“the Yonays.”) The article discusses the history, culture, and\nsetting of the Top Gun program and vividly describes the\nexperience of flying F-14 aircraft. It focuses on two\nlieutenants, callsigns “Yogi” and “Possum,” describing their\ndecisions to become fighter pilots and their experiences in\nnaval aviation and the Top Gun program. The article is\nwritten in a style that the Yonays refer to as “‘New\nJournalism,’ where writers use extensive imagery and\n\f YONAY V. PARAMOUNT PICTURES CORP. 5\n\n\nsubjective expression to present facts with the colorful voice\nof fiction.” A representative passage is one of the article’s\nfirst descriptions of Yogi and Possum flying:\n\n From where they sit, however, it’s not their\n silver rocket that’s rocking but the entire vast\n blue dome of sea and sky. There are no ups\n or downs up here, no rights or lefts, just a\n barely perceptible line separating one blue\n from another, and that line is spinning and\n racing like mad in the distance. Yogi was still\n in junior high school when he realized that\n flying straight and level might be okay for\n some people, but if you like yanking and\n banking—the feeling of riding inside one of\n those storm-in-a-bottle souvenirs—then\n there’s just one place for you, and that’s the\n cockpit of a fighter plane.\n\n Shortly after “Top Guns” was published, Yonay granted\nParamount all rights to the article. In return, Paramount paid\nYonay a fixed sum of money and agreed to credit him in any\nmovies “produced by [Paramount] hereunder and\nsubstantially based upon or adapted from” the article.\n In 1986, Paramount released the feature-length movie\nTop Gun, whose credits state that it was “[s]uggested by”\nYonay’s article. Top Gun enjoyed great commercial success\nand was the top-grossing movie of 1986.\n The film follows two Navy lieutenants, callsigns\n“Maverick” and “Goose,” through their experience at Top\nGun. Maverick competes with another lieutenant, callsign\n“Iceman,” to be the top trainee. After Goose dies in an\naccident while Maverick is flying, a guilt-ridden Maverick\n\f6 YONAY V. PARAMOUNT PICTURES CORP.\n\n\nconsiders quitting. But he continues in the program,\neventually graduating with his class. He and Iceman are then\ndeployed for a dangerous mission. Maverick shoots down\nthree enemy aircraft, befriends Iceman, and makes peace\nwith his guilt over Goose’s death.\n After Yonay died in 2012, his widow Shosh and his son\nYuval became the owners of the copyright in “Top Guns.”\nIn 2020, they terminated Yonay’s agreement with\nParamount by invoking 17 U.S.C. § 203(a)(3), which allows\nan author’s heirs to terminate certain copyright grants made\nduring his lifetime.\n Two years later, in 2022, Paramount released Top Gun:\nMaverick, a sequel to the original movie. Maverick picks up\ndecades after Top Gun left off. The eponymous pilot is now\na captain, while Iceman, now an admiral, commands the U.S.\nPacific Fleet. After Maverick crashes an experimental\nhypersonic jet, Iceman sends him back to Top Gun to train a\ngroup of program graduates for a mission to destroy a\nforeign enemy’s uranium-enrichment plant. One of those\ngraduates is Goose’s son, callsign “Rooster,” who resents\nMaverick because Maverick blocked his application to the\nNaval Academy in an effort to protect him from suffering his\nfather’s fate.\n The pilots train by flying on a course that simulates the\ntopography surrounding the uranium plant, but none of the\ntrainees can complete the course while flying quickly\nenough to avoid attack by enemy aircraft. Iceman dies of\ncancer, and Maverick, inspired by Iceman, takes an\nunauthorized flight through the course and demonstrates that\nit is possible to complete the mission in time. Based on that\nperformance, Maverick is selected to lead the mission, and\nhe decides that he will lead one flight team and Rooster will\n\f YONAY V. PARAMOUNT PICTURES CORP. 7\n\n\nlead the other. While all of that is going on, Maverick\npursues a romance with Penny Benjamin (mentioned in the\noriginal Top Gun when Maverick’s commanding officer\nnoted his “history of high-speed passes over five air-control\ntowers and one admiral’s daughter”).\n During the mission, Maverick protects Rooster from\nenemy missiles but is shot down in the process. Just when an\nenemy helicopter is about to shoot Maverick on the ground,\nRooster returns, saves Maverick by destroying the\nhelicopter, and is himself shot down. Maverick and Rooster,\nnow both on foot, steal an F-14 from an enemy air base and\nbegin flying back to their aircraft carrier. On the way,\nhowever, they are intercepted by enemy aircraft. They\nappear to be doomed, but one of the other Top Gun graduates\nflies in and saves the day. The three return to the carrier in\ntriumph, with Maverick and Rooster having resolved their\ndifferences. At the end of the movie, Maverick and Penny\nfly Maverick’s personal plane into the sunset.\n Like its predecessor, Maverick was a major commercial\nsuccess. Paramount did not compensate the Yonays or credit\nYonay in the film.\n After Maverick’s release, the Yonays sued Paramount in\nthe Central District of California, asserting claims for\ncopyright infringement and breach of contract. The district\ncourt denied a motion to dismiss but later granted\nParamount’s motion for summary judgment. The court\nconcluded that “Top Guns” and Maverick are not\n“substantially similar,” as required to establish copyright\ninfringement. While the works have “some similarities,” the\ncourt explained, those similarities are “based on unprotected\nelements” like facts about the Top Gun program, “general\nplot ideas, [and] familiar stock scenes and themes.”\n\f8 YONAY V. PARAMOUNT PICTURES CORP.\n\n\n In resolving the copyright claim, the district court\nexcluded the proffered opinion of the Yonays’ literary\nexpert, Henry Bean, finding that Bean had “fail[ed] to filter\nout the elements of the Article and [Maverick] that are not\nprotected by copyright law (i.e., facts), which renders his\nopinions unhelpful and inadmissible.” The court denied a\nmotion to exclude Paramount’s expert, Andrew Craig, a\nformer Top Gun instructor who described the factual\naccuracy of “Top Guns.” Craig’s opinions, the court\nreasoned, could help the factfinder “filter out the\nunprotected, factual elements of the Article and [Maverick]\nto assess whether they are substantially similar.”\n As to the contract claim, the district court construed the\nagreement to include two conditions for crediting Yonay in\na movie produced by Paramount: that the movie was\n(1) produced under the agreement and (2) “substantially\nbased upon or adapted from” the article. Because Maverick\nwas not produced under the agreement, the court concluded,\nParamount was not required to credit Yonay.\n The Yonays appeal. We review the district court’s grant\nof summary judgment de novo. See Teradata Corp. v. SAP\nSE, 124 F.4th 555, 572 (9th Cir. 2024).\n II\n To establish copyright infringement, plaintiffs must\nshow that (1) they own a valid copyright in a work and\n(2) the defendant copied original aspects of the work. Feist\nPubl’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361\n(1991). Only the second element is at issue in this case, and\nreally only part of it: Paramount argues that the Yonays have\nnot shown that anything copied from the article was\noriginal—in other words, that they have not shown\n“unlawful appropriation.” Skidmore as Tr. for Randy Craig\n\f YONAY V. PARAMOUNT PICTURES CORP. 9\n\n\nWolfe Tr. v. Led Zeppelin, 952 F.3d 1051, 1064 (9th Cir.\n2020) (en banc).\n Copyright protection does not “extend to any idea,\nprocedure, process, system, method of operation, concept,\nprinciple, or discovery, regardless of the form in which it is\ndescribed, explained, illustrated, or embodied in such work.”\n17 U.S.C. § 102(b). “Thus, a defendant incurs no liability if\nhe copies only the ‘ideas’ or ‘concepts’ used in the plaintiff’s\nwork.” Rentmeester v. Nike, Inc., 883 F.3d 1111, 1117 (9th\nCir. 2018), overruled in part on other grounds by Skidmore,\n952 F.3d at 1068–69. And, of particular relevance here,\ncopyright law also does not protect the facts set forth in a\nwork, so a defendant is not liable for copying them. Feist,\n499 U.S. at 346–48; accord Harper & Row Publishers, Inc.\nv. Nation Enters., 471 U.S. 539, 556 (1985) (“No author may\ncopyright his ideas or the facts he narrates.”). “[C]opyright\nassures authors the right to their original expression, but\nencourages others to build freely upon the ideas and\ninformation conveyed by a work.” Feist, 499 U.S. at 349–\n50.\n To show unlawful appropriation, plaintiffs must\ntherefore demonstrate that the works in question share\n“substantial similarity in protectable expression,” not\nmerely in facts, ideas, or concepts. Skidmore, 952 F.3d at\n1064 (emphasis added). To do so, they must satisfy both an\nextrinsic test and an intrinsic test. Williams v. Gaye, 895 F.3d\n1106, 1119 (9th Cir. 2018). The extrinsic test “assesses the\nobjective similarities of the two works.” Rentmeester, 883\nF.3d at 1118. The intrinsic test is subjective and tests “for\nsimilarity of expression from the standpoint of the ordinary\nreasonable observer, with no expert assistance.” Jada Toys,\nInc. v. Mattel, Inc., 518 F.3d 628, 637 (9th Cir. 2008)\n(quoting Apple Comput., Inc. v. Microsoft Corp., 35 F.3d\n\f10 YONAY V. PARAMOUNT PICTURES CORP.\n\n\n1435, 1442 (9th Cir. 1994)). Because “the intrinsic test is\nreserved exclusively for the trier of fact,” only the extrinsic\ntest is relevant at the summary-judgment stage. Williams,\n895 F.3d at 1119.\n “[W]hen applying the extrinsic test, a court must filter\nout and disregard the non-protectible elements.” Cavalier v.\nRandom House, Inc., 297 F.3d 815, 822 (9th Cir. 2002). For\nliterary works, “[t]he test focuses on articulable similarities\nbetween the plot, themes, dialogue, mood, setting, pace,\ncharacters, and sequence of events in two works.” Id.\n(quoting Kouf v. Walt Disney Pictures & Television, 16 F.3d\n1042, 1045 (9th Cir. 1994)).\n But even if none of the artistic elements in those\ncategories reveals substantial similarity, works can be\nsubstantially similar if they share the “selection and\narrangement” of those elements—or, in other words, “the\nparticular way in which the artistic elements form a coherent\npattern, synthesis, or design.” Skidmore, 952 F.3d at 1074;\nsee Hanagami v. Epic Games, Inc., 85 F.4th 931, 943 (9th\nCir. 2023). For a “selection-and-arrangement” claim to\nsucceed, the elements themselves need not be protectable.\nRather, “a copyright plaintiff may argue ‘infringement . . .\nbased on original selection and arrangement of unprotected\nelements.’” Skidmore, 952 F.3d at 1074 (omission in\noriginal) (quoting Metcalf v. Bochco, 294 F.3d 1069, 1074\n(9th Cir. 2002)); see also Metcalf, 294 F.3d at 1074 (“The\nparticular sequence in which an author strings a significant\nnumber of unprotectable elements can itself be a protectable\nelement.”).\n We first evaluate the Yonays’ arguments about\nindividual elements of the works and then consider their\nargument based on selection and arrangement.\n\f YONAY V. PARAMOUNT PICTURES CORP. 11\n\n\n A\n The Yonays contend that there are similarities in each of\nthe categories of elements described in our cases: plot,\nsequence of events, characters, dialogue, themes, mood,\nsetting, and pace. We agree with the district court that the\nYonays cannot show meaningful similarities in any of those\ncategories.\n Before considering the individual categories, however,\nwe observe a problem that pervades the Yonays’ arguments:\nAlthough “Top Guns” contains much original, protected\nexpression—most notably, its vivid phrasing and innovative\nstructure—none of that expression appears in Maverick. The\nYonays identify similarities between the article and the film\nonly by describing both works at such a high level of\nabstraction that the similarities do not involve protected\nexpression. Their claim of substantial similarity fails\nbecause what is protected is not similar, and what is similar\nis not protected.\n Plot and Sequence of Events: We are not sure it is\naccurate to characterize “Top Guns” as having a “plot” in the\nconventional sense—it is a nonfiction work, and the portions\nof the article that describe specific events do so in a nonlinear\nway that is repeatedly interrupted by historical and\ndescriptive digressions. The article describes the various\nplanes used by Navy fighter pilots, recounts how pilots learn\nto fly, explains the origin of the Top Gun program, and\nincludes detailed descriptions of a flight simulator and\nYonay’s own experience in a fighter plane. To the extent\nthere is a plot, it is Yogi and Possum’s journey: They\ncomplete flight school and meet while going through fighter-\npilot training; they are deployed on an aircraft carrier; they\nare sent to Top Gun as students and proceed through the\n\f12 YONAY V. PARAMOUNT PICTURES CORP.\n\n\nschool’s curriculum; and they graduate and are deployed\nagain.\n Maverick, by contrast, has a traditional plot with\nexposition, climax, and denouement. Apart from a short\nflashback that shows scenes from the original Top Gun, the\nentire story is presented in chronological order. Maverick\nbegins as a test pilot and then is sent to Top Gun as an\ninstructor. Dramatic tension builds as Maverick and Rooster\nargue with each other, the pilots are unable to complete the\ntraining course, and Maverick and Penny pursue a romantic\nrelationship. The plot culminates in the successful\ncompletion of the mission, Maverick and Rooster’s escape\nfrom enemy territory, their reconciliation, and Maverick and\nPenny’s flight into the sunset.\n Maverick includes many significant plot elements that\nare absent from “Top Guns.” The movie has a main character\nwho returns to Top Gun to train younger pilots to complete\na specific mission, rather than the general training that\nnormally characterizes the program; it includes a romantic\nsubplot; and around a quarter of the movie shows the actual\nmission being carried out. Conversely, “Top Guns” contains\nhistorical and technical discussions of numerous subjects not\naddressed in Maverick, such as the flight simulators used to\ntrain pilots and the origins of the Top Gun program.\n The Yonays argue that those differences are irrelevant to\nthe analysis of substantial similarity. We agree with the\ngeneral proposition that “no plagiarist can excuse the wrong\nby showing how much of his work he did not pirate.”\nSheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 56\n(2d Cir. 1936) (L. Hand, J.). But a plot is simply “the\n‘sequence of events’ by which the author expresses his\n‘theme’ or ‘idea.’” Shaw v. Lindheim, 919 F.2d 1353, 1363\n\f YONAY V. PARAMOUNT PICTURES CORP. 13\n\n\n(9th Cir. 1990) (quoting 3 Melville B. Nimmer, Nimmer on\nCopyright § 13.03[A] (1989)), overruled in part on other\ngrounds by Skidmore, 952 F.3d at 1068–69. The more that\nevents are added to or subtracted from that sequence, the less\nthat the plots can reasonably be described as similar, even if\nthere is some overlap. Cf. Woodland v. Hill, 136 F.4th 1199,\n1211 n.4 (9th Cir. 2025) (noting that “courts may identify\ndifferences in the works to explain why there is no\nsubstantial similarity”).\n At oral argument, the Yonays emphasized that Maverick\n“lift[s] certain things” from “Top Guns,” including the fact\nthat the F-14 “swings back its wings so that it can . . . do a\nshort takeoff”—a feature that becomes relevant to the plot\nwhen Maverick and Rooster take off in a stolen F-14 to\nescape enemy territory. But the F-14 is a real plane with\nvariable-sweep wings. See Jane’s All the World’s Aircraft\n1983-84, at 392 (John W.R. Taylor ed., 1983) (noting that\n“[t]he configuration of the F-14 includes variable geometry\nwings” with “20° of leading-edge sweep in the fully forward\nposition and 68° when fully swept”). The evocative language\nthat “Top Guns” uses to describe the aircraft’s design—that\nits “wings can sweep back for fast flying or open to the sides\nlike an eagle’s for landing or just for cruising around”—does\nnot appear in Maverick. And the basic facts of the design do\nnot enjoy copyright protection. See Feist, 499 U.S. at 349\n(“No matter how original the format, however, the facts\nthemselves do not become original through association.”).\n The Yonays also contend that both works “journey\nthrough what it takes to be the best of the best in fighter\naviation by following the demanding, intense lives of fighter\npilots.” It is true that both “Top Guns” and Maverick depict\nfighter pilots training at Top Gun and then being deployed.\nBut that similarity is a factual one: Top Gun is a real program\n\f14 YONAY V. PARAMOUNT PICTURES CORP.\n\n\nin which the best fighter pilots undergo a demanding, intense\ntraining regimen and are then deployed.\n The Yonays describe various other alleged plot\nsimilarities, such as “focus[ing] on a small, elite group of\npilots who are bound together by their shared experiences\nand sacrifices in a high-stakes environment,”\n“emphasiz[ing] the importance of rigorous training,” and\n“capitaliz[ing] on the fighter jocks’ ‘frat-house’ culture.”\nBut even if those similarities exist, they involve only\nunprotected ideas, not protected expression.\n Characters: No character described in “Top Guns”\nappears in Maverick. In both works, of course, many of the\ncharacters are Top Gun instructors and trainees. But in a\nwork about Top Gun, using instructors and trainees as\ncharacters is hardly original. In any event, the characters in\nthe article are real people, and “[a] character based on a\nhistorical figure is not protected for copyright purposes.”\nCorbello v. Valli, 974 F.3d 965, 976 (9th Cir. 2020).\n The Yonays point to the article’s “expressive\ncharacterizations” of the real Top Gun trainees. They\nhighlight, for example, its description of the trainees in a bar:\n“[T]hese supremely healthy young males are standing\naround in twos and threes and talking about” a training flight\nwhile ignoring the dancing women “waving right in front of\ntheir eyes.” Those descriptive phrases are entitled to\ncopyright protection: Although ideas and facts themselves\nare not protectable, “the specific details of an author’s\nrendering of ideas” and facts are. Corbello, 974 F.3d at 975\n(quoting Funky Films, Inc. v. Time Warner Ent. Co., 462\nF.3d 1072, 1077 (9th Cir. 2006)). But none of the quoted\nphrases appears in Maverick. The Yonays instead argue that\nMaverick copied general traits from the article’s\n\f YONAY V. PARAMOUNT PICTURES CORP. 15\n\n\ncharacters—for example, that the film depicts pilots as\n“men’s men” who are “jocular, confident, competitive . . . ,\ngood-humored and deeply committed.” Like the Yonays’\nasserted plot similarities, those traits are too general to be\nprotectable. See Biani v. Showtime Networks, Inc., 153 F.4th\n957, 965 (9th Cir. 2025).\n Dialogue: It is unclear that any of the dialogue in “Top\nGuns” is protectable, given that the article presents all of that\ndialogue as real statements of real Top Gun instructors and\ntrainees. See Corbello, 974 F.3d at 978 (“[E]lements of a\nwork presented as fact are treated as fact.”). Regardless,\nnone of the dialogue in “Top Guns” appears in Maverick—\nwith the exception of the two-word phrase “fight’s on,”\nsomething that real fighter pilots say before beginning\ntraining exercises.\n Faced with the lack of similarity in dialogue, the Yonays\nagain resort to abstraction, arguing that “the characters in\nboth Works speak in a way that is at once droll, idiomatic,\ntechy, and charmingly unguarded.” Assuming that\ndescription to be accurate, it is too general to be protectable.\n Theme, Mood, Setting, and Pace: While the Yonays\narticulate similarities beyond the plot, characters, and\ndialogue in the works, we have never held that elements\noutside of those categories, on their own, can give rise to\nsubstantial similarity. See 4 Melville B. Nimmer & David\nNimmer, Nimmer on Copyright § 13D.19[D] (2025)\n(“[M]ood, setting, and pace, standing alone, would not seem\nable to attract [copyright] protection.”). Either way, the\nYonays’ arguments about theme, mood, setting, and pace\nshould by now sound familiar. They point, for example, to\nthe colorful language that “Top Guns” uses to describe the\nNavy base: “At night the darkened base could be mistaken\n\f16 YONAY V. PARAMOUNT PICTURES CORP.\n\n\nfor an old From Here to Eternity set,” and “it looks like a\nsmall desert town out of the 1950s.” But in Maverick, no one\ncompares the Navy base to a movie set or a desert town. The\nYonays assert that those comparisons reveal shared themes\nof “post-WWII nostalgia” and “romanticism of a simpler\nera,” but nostalgia for a simpler time is an unprotectable\nidea—as are the other purportedly shared themes and moods,\nsuch as “the anachronism of fighter aviation,” “that success\ncomes down to the pilot, rather than his aircraft,”\n“ideological rifts in the Navy,” “‘Western’ gunslinger\nthemes,” “the constant threat of death and violence,” and the\ncontrast between “freedom” in the sky and “restless[ness]”\non the ground.\n As for setting, “Top Guns” described Naval Air Station\nMiramar, which at the time was the location of the Top Gun\nprogram, while Maverick takes place at Naval Air Station\nNorth Island. Despite that difference, the Yonays argue that\nbecause both bases are in San Diego, the works “feature the\nsame topography, including the desert, Pacific Ocean, and\nbeaches of California.” Those geographic similarities,\nhowever, are simply features of the original location of the\nreal program.\n The Yonays’ arguments about pace fare no better. They\nsay that “Top Guns” and Maverick share an “alternation\nbetween the aerial ballet, at once lyrical and violent,\njuxtaposed against quiet, reflective scenes on the ground.”\nAssuming that description to be accurate, alternation\nbetween scenes in flight and scenes on the ground reflects\nnothing more than the reality that fighter pilots in training do\nnot spend 100 percent of their time in the air but also spend\ntime on the ground reviewing past flights or preparing for\nfuture ones. Those facts about pilot training are not\nprotectable.\n\f YONAY V. PARAMOUNT PICTURES CORP. 17\n\n\n B\n Given the lack of similarity in protectable elements, the\nYonays understandably focus on a selection-and-\narrangement argument. “[A] selection and arrangement\ncopyright protects . . . the particular way in which the artistic\nelements form a coherent pattern, synthesis, or design.”\nSkidmore, 952 F.3d at 1074. We consider selection-and-\narrangement arguments because of the possibility that the\noriginal expression a defendant has copied from a plaintiff\ncannot be categorized as one, or even a combination, of plot,\nthemes, dialogue, mood, setting, pace, characters, or\nsequence of events. But although “[t]he particular sequence\nin which an author strings a significant number of\nunprotectable elements can itself be a protectable element,”\nMetcalf, 294 F.3d at 1074, that particular sequence must be\noriginal, see Feist, 499 U.S. at 349. To assert a selection-\nand-arrangement argument, a copyright plaintiff must\nidentify “a combination of . . . elements . . . numerous\nenough” and with a “selection and arrangement original\nenough that their combination constitutes an original work\nof authorship.” Skidmore, 952 F.3d at 1074 (quoting Satava\nv. Lowry, 323 F.3d 805, 811 (9th Cir. 2003)). Then, the\nplaintiff must show that the defendant’s selection and\narrangement is substantially similar to the plaintiff’s. Id. at\n1075.\n The Yonays assert that the district court erred by\n“compar[ing] the Works’ selection and arrangement of only\n‘unprotected elements,’” because “selection and\narrangement analysis must consider all elements, protected\nand unprotected.” We agree that an original selection and\narrangement could include both protectable and\nunprotectable elements, and in such cases, a court should\ncompare the selection and arrangement of all the elements.\n\f18 YONAY V. PARAMOUNT PICTURES CORP.\n\n\nBut to the extent the Yonays are arguing that a plaintiff can\nprevail under a selection-and-arrangement theory simply by\nshowing that the two works share many similar elements,\nwhether unprotectable or protectable, their argument reveals\na misunderstanding of the extrinsic test.\n As we have explained, a court applying the extrinsic test\nmust filter out the unprotected elements. “‘Filtering’ and\n‘selection and arrangement’ are not truly distinct tests.”\nHanagami, 85 F.4th at 942 n.11. Both ask whether the\ndefendant has copied something other than unprotectable\nelements. Filtering means that in addition to identifying the\n“articulable similarities” in the specific objective elements\nof the works in question, Cavalier, 297 F.3d at 822 (quoting\nKouf, 16 F.3d at 1045), a court must also “determine whether\nthe similar elements are protectable or unprotectable,”\nMattel, Inc. v. MGA Ent., Inc., 616 F.3d 904, 913 (9th Cir.\n2010). Only then can it be assured that “the protectable\nelements, standing alone, are” what is “substantially\nsimilar.” Corbello, 974 F.3d at 975 (quoting Funky Films,\n462 F.3d at 1077).\n To be sure, protectable expression can be, and often is,\ncomposed of smaller, unprotectable elements. A plot, for\ninstance, is simply a combination of events. See Shaw, 919\nF.2d at 1363. Although no discrete event that makes up a plot\nis itself protectable, a court cannot simply ignore all the\nunprotectable events, or it would be unable to identify the\nplot. In other words, even after a court filters out\nunprotectable elements, it may still consider those elements\nto the extent that they are constituent parts of protectable\ncategories of expression.\n Selection-and-arrangement analysis works the same\nway. A selection and arrangement of elements can be\n\f YONAY V. PARAMOUNT PICTURES CORP. 19\n\n\noriginal and protectable, whether or not the elements\nthemselves are protectable. When comparing two works’\nselection and arrangement of elements, a court cannot blind\nitself to the elements, but similarities in those elements\nalone—no matter their quantity or importance to the work—\ncannot demonstrate unlawful appropriation. Instead, to be\nsubstantially similar, the works must share a “pattern,\nsynthesis, or design” that is both “particular” and “coherent.”\nSkidmore, 952 F.3d at 1074.\n The Yonays identify no such shared pattern of\nexpression here. As with their argument about individual\nelements, the Yonays identify multiple factual similarities\nbetween the works when discussing selection and\narrangement: for example, that “only the best of the best get\ninvited back to Top Gun as instructors,” that “pilots live in a\ncommunal world,” that the program involves “grueling\ntraining,” and that lieutenants “carous[e] at the bar, which\nhas a big brass bell and where those who break ‘house rules’\nmust buy a round for everyone.” But those are unprotectable\nfacts about the Top Gun program, and a copyright plaintiff\n“cannot establish substantial similarity by reconstituting the\ncopyrighted work as a combination of unprotectable\nelements and then claiming that those same elements also\nappear in the defendant’s work, in a different aesthetic\ncontext.” Skidmore, 952 F.3d at 1075; see also Corbello, 974\nF.3d at 974 n.2 (rejecting a selection-and-arrangement\ntheory where the works depicted shared factual elements\n“from different perspectives, with different characterizations\nof the people involved, in different media, and\ncommunicating a different overall message”).\n The Yonays attempt to articulate patterns that the works\nshare, but the patterns they describe are not the original\nexpression in Yonay’s copyrighted article. For example,\n\f20 YONAY V. PARAMOUNT PICTURES CORP.\n\n\nthey point out that “[r]ather than offer an encyclopedic\nnarration of the naval base’s operations, Yonay focused on\nthe personal backgrounds and idiosyncrasies of ambitious\nfighter pilots to engage his audience and humanize” the\ncharacters in “Top Guns.” They assert that Yonay “patterned\ncontradictory character elements to engage his audience and\nenhance his Story: e.g., pilots are fierce, but playful;\nregimented, but irreverent; macho, but sensitive.” And they\nsay that, in both works, “passages of idyllic flying over the\nbeach in Southern California are juxtaposed suddenly and\nviolently with gut-wrenching climbs, dives, and dogfights,”\ncausing “beauty and terror” to “spring from each other.”\n Those abstract ideas are not the article’s original\nexpression. Showing characters’ backgrounds and\npersonalities, giving them contradictory traits, and\ndisplaying action in aesthetically pleasing places have all\nbeen done before. And even if they had not, the Yonays\n“cannot claim an exclusive right to ideas or concepts at that\nlevel of generality, even in combination. Permitting [them]\nto claim such a right would withdraw those ideas or concepts\nfrom the ‘stock of materials’ available to other artists,\nthereby thwarting copyright’s ‘fundamental objective’ of\n‘foster[ing] creativity.’” Rentmeester, 883 F.3d at 1123\n(second alteration in original) (first quoting 4 Melville B.\nNimmer & David Nimmer, Nimmer on Copyright\n§ 13.03[B][2][a] (2017); and then quoting Warner Bros. Inc.\nv. American Broad. Cos., 720 F.2d 231, 240 (2d Cir. 1983));\nsee also Nichols v. Universal Pictures Corp., 45 F.2d 119,\n121 (2d Cir. 1930) (L. Hand, J.) (“Upon any work, and\nespecially upon a play, a great number of patterns of\nincreasing generality will fit equally well, as more and more\nof the incident is left out. . . . [B]ut there is a point in this\nseries of abstractions where they are no longer protected,\n\f YONAY V. PARAMOUNT PICTURES CORP. 21\n\n\nsince otherwise the playwright could prevent the use of his\n‘ideas,’ to which, apart from their expression, his property is\nnever extended.”).\n In the face of a lack of substantial similarity, the Yonays\nemphasize that “Top Guns” contains significant amounts of\noriginal expression. But the expressive nature of the article\nshows merely that the work receives full copyright\nprotection and that the substantial-similarity standard\napplies—in contrast, for example, to “paint[ing] a red\nbouncy ball on blank canvas,” where “there’s only a narrow\nrange of” possible expression, so “a work must be ‘virtually\nidentical’ to infringe.” Mattel, 616 F.3d at 914 (quoting\nApple Comput., Inc. v. Microsoft Corp., 35 F.3d 1435, 1446–\n47 (9th Cir. 1994)). The question under the extrinsic test is\nwhether the expression in Maverick is substantially similar\nto the original expression in “Top Guns,” and it is not.\n III\n We next evaluate the Yonays’ challenge to the district\ncourt’s decision to exclude their expert and allow\nParamount’s expert. The proponent of expert testimony must\ndemonstrate that, among other things, “the testimony is the\nproduct of reliable principles and methods” and “will help\nthe trier of fact.” Fed. R. Evid. 702; see generally Daubert v.\nMerrell Dow Pharms., Inc., 509 U.S. 579 (1993). We review\nthe district court’s application of that standard for abuse of\ndiscretion. See United States v. Benavidez-Benavidez, 217\nF.3d 720, 723 (9th Cir. 2000). We see none.\n The Yonays sought to introduce a report from Henry\nBean, a screenwriter and film professor who opined that\nMaverick is substantially similar to “Top Guns.” The district\ncourt determined that Bean’s testimony would be unhelpful\nbecause he “fail[ed] to filter out the elements of the [works]\n\f22 YONAY V. PARAMOUNT PICTURES CORP.\n\n\nthat are not protected by copyright law.” Indeed, in his report\nand deposition, Bean disclaimed any effort to filter\nunprotectable elements, taking the position that there was\n“maybe nothing in” the article “that was . . . an unprotectable\nelement.” He believed that “to the extent” the article\n“conveys facts, those facts are expressed with the feeling of\nfiction” and that nothing in the article “constitutes a naked\n‘fact,’ unfiltered through Yonay’s sensibility.” He also\nstated that while, “in an intuitive way,” he “was doing some”\nfiltering, he “was not sitting there thinking, well, this goes in\nthe protected bucket and that goes in the unprotected\nbucket.” The Yonays emphasize Bean’s post-deposition\ndeclaration that he “believe[s] that [he] considered the\nexpression of facts as opposed to the underlying facts\nthemselves” and that he “tried as best as [he] could to\ncompare the elements of the works at issue that are\nprotectable, while disregarding those that are not,” but the\ndistrict court was not required to credit those qualifier-heavy\nstatements in assessing the reliability of his methodology.\n That is particularly so because Bean’s general approach\nwas reflected in the specifics of his report, which focused\nheavily on similarities in unprotectable elements. Bean\ndevoted much of his report to highlighting similar facts, such\nas the presence of a brass bell hung in a bar near the real-life\nlocation of Top Gun, the fact that Top Gun training is\ndifficult, the fact that the best Top Gun students are invited\nback as instructors, the appearance of a plane’s radar screen,\nand the effect on pilots of g-forces.\n Bean also highlighted similarities in abstract ideas. For\ninstance, Bean wrote that Yonay gave Yogi and Possum “a\nproblem . . . they will have to overcome” by opening “Top\nGuns” with their failure in a training flight. So too, he\nasserted, does Maverick have to overcome Goose’s death.\n\f YONAY V. PARAMOUNT PICTURES CORP. 23\n\n\nHe explained that “Top Guns” and Maverick are similar in\nthat “both follow the recurring theme of the ‘redemption’ of\na hero who is thwarted by his limitations (internal and\nexternal) but finally overcomes them and triumphs.” If an\nauthor could lay claim to the concept of a protagonist’s\novercoming obstacles to achieve his goal, someone should\nhave told Homer. See The Odyssey 1.1–.7 (Emily Wilson\ntrans., W.W. Norton & Co. 2018) (describing “a complicated\nman” and “the pain he suffered” in achieving his goal of\nreturning home). The district court did not abuse its\ndiscretion when it determined that Bean’s focus on\nunprotectable elements made his findings of similarity\nunhelpful.\n The Yonays further argue that, having excluded Bean,\nthe district court erred by granting summary judgment on\nsubstantial similarity without the aid of literary experts. But\nthe Yonays’ failure to proffer an admissible literary expert\nwas no one’s fault but their own. Where, as here, copyright\nplaintiffs have not produced evidence creating a material\ndispute over substantial similarity, a court need not give\nthem another chance to find an expert for trial.\n Even if the district court had allowed Bean’s testimony,\nit would not have created a material factual dispute. As\ndistrict courts in this circuit have correctly recognized, “the\nexistence of dueling expert reports does not necessarily\npresent a triable issue of fact for the jury” on substantial\nsimilarity. Bernal v. Paradigm Talent & Literary Agency,\n788 F. Supp. 2d 1043, 1062 (C.D. Cal. 2010); see, e.g., Rice\nv. Fox Broad. Co., 330 F.3d 1170, 1179–80 (9th Cir. 2003)\n(affirming summary judgment for the defendant on\nsubstantial similarity in the face of dueling expert reports),\noverruled on other grounds by Skidmore, 952 F.3d 1051;\naccord Gray v. Hudson, 28 F.4th 87, 97–103 (9th Cir. 2022).\n\f24 YONAY V. PARAMOUNT PICTURES CORP.\n\n\nHere, Bean’s report does not point out any similarities that\nwould cause us to revise our conclusion that Maverick and\n“Top Guns” do not share substantial protectable expression.\n For its part, Paramount proffered expert reports from\nAndrew Craig, a Navy Reserve officer and former Top Gun\ninstructor who opined that the article’s portrayal of the\nprogram is factually accurate. The Yonays argue that Craig’s\nopinions were “a mere conduit for hearsay” and were\nunhelpful because they spoke to the “nonissue” of whether\nthe facts in “Top Guns” were copyrightable. But “experts are\nentitled to rely on hearsay in forming their opinions.” Carson\nHarbor Vill., Ltd. v. Unocal Corp., 270 F.3d 863, 873 (9th\nCir. 2001). And although neither party disputes that facts are\nunprotectable, it was reasonable for the district court to\nperceive a need for expert assistance to “filter out the\nunprotected, factual elements of the Article.” The district\ncourt therefore did not abuse its discretion by considering\nCraig’s reports.\n IV\n Finally, we consider whether Paramount breached its\n1983 agreement with Yonay by not crediting him in\nMaverick. The relevant provision of the agreement requires\nParamount to credit Yonay in “the film of any motion picture\nphotoplay that may be produced by it hereunder and\nsubstantially based upon or adapted from [the article] or any\nversion or adaptation thereof, substantially incorporating the\nplot, theme, characterizations, motive and treatment of said\nwork or any version or adaptation thereof.” The agreement\nthus requires Paramount to credit Yonay in a film if two\nseparate conditions are satisfied: (1) the film must be\n“produced by [Paramount] hereunder,” and (2) it must be\n“substantially based upon or adapted from” either the article\n\f YONAY V. PARAMOUNT PICTURES CORP. 25\n\n\nor “any version or adaptation” of the article; that is, it must\n“substantially incorporat[e] the plot, theme,\ncharacterizations, motive and treatment of” the article or\n“any version or adaptation” of it.\n Paramount did not breach the agreement because the first\ncondition was not satisfied. The most natural meaning of the\nphrase “produced . . . hereunder” is “produced using the\nrights conferred by this agreement.” See Black’s Law\nDictionary 870 (12th ed. 2024) (defining “hereunder” as\n“[i]n accordance with this document”); accord Webster’s\nThird New International Dictionary of the English Language\n1059 (2002) (“under this agreement: in accordance with the\nterms of this document”). Because Maverick did not infringe\nthe copyright in “Top Guns,” it follows that Paramount did\nnot use that same copyright, which it received through the\nagreement, to produce Maverick. Maverick therefore was not\nproduced under the agreement.\n The Yonays argue that a film need not satisfy the\n“produced . . . hereunder” condition so long as it satisfies the\n“substantially based upon or adapted from” condition. That\nis incorrect. Because the two parts of the clause are separated\nby the word “and,” they both must be satisfied. The Yonays\nsay, however, that the entire clause is a hendiadys—that is,\na figure of speech in which a single idea is expressed through\ntwo words joined by “and.” For example, if a room is “nice\nand warm,” that does not mean that it possesses the distinct\nqualities of niceness and warmth, but rather that it is nicely\nwarm.\n We assume that in some contexts, the best reading of a\nlegal phrase might be as a hendiadys. See Samuel L. Bray,\n“Necessary AND Proper” and “Cruel AND Unusual”:\nHendiadys in the Constitution, 102 Va. L. Rev. 687 (2016).\n\f26 YONAY V. PARAMOUNT PICTURES CORP.\n\n\nBut the Yonays offer no reason to think that this is one of\nthem. A hendiadys typically involves a pair of single words;\nwe are aware of no examples involving phrases as complex\nas “produced by it hereunder and substantially based upon\nor adapted from [the article] or any version or adaptation\nthereof, substantially incorporating the plot, theme,\ncharacterizations, motive and treatment of said work or any\nversion or adaptation thereof.” Nor have the Yonays\nexplained what idea they think the clause expresses that\ncould not have been expressed by simply omitting “produced\nby it hereunder.” “A contract term should not be construed\nto render some of its provisions meaningless or irrelevant.”\nOrr v. Petersen (In re Estate of Petersen), 34 Cal. Rptr. 2d\n449, 458 n.4 (Ct. App. 1994). And, most importantly,\nnothing in the context of the agreement suggests any reason\nto depart from “[t]he ordinary and usual usage of ‘and,’”\nwhich “is as a conjunctive.” People v. C.H. (In re C.H.), 264\nP.3d 357, 361 (Cal. 2011).\n Both conditions in the agreement must be satisfied to\ntrigger the requirement that Paramount credit Yonay.\nBecause the first was not, Paramount did not breach the\nagreement.\n AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11234837/", "author_raw": "MILLER, Circuit Judge:"}]}	ANDREW D HURWITZ	ERIC D MILLER	JENNIFER SUNG	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10768252/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,768,253	Sedlik v. Von Drachenberg	2026-01-02	24-3367	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Kim McLane Wardlaw, Salvador Mendoza, Jr., and Anthony D. Johnstone, Circuit Judges.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\nJEFFREY B. SEDLIK, an individual, No. 24-3367\n D.C. No.\n Plaintiff - Appellant,\n 2:21-cv-01102-\n DSF-MRW\n v.\n\nKATHERINE VON\nDRACHENBERG, an individual; OPINION\nAKA Kat Von D; KAT VON D,\nINC., a California corporation; HIGH\nVOLTAGE TATTOO, INC., a\nCalifornia corporation,\n\n Defendants - Appellees.\n\n Appeal from the United States District Court\n for the Central District of California\n Dale S. Fischer, District Judge, Presiding\n\n Argued and Submitted July 14, 2025\n Pasadena, California\n\n Filed January 2, 2026\n\nBefore: Kim McLane Wardlaw, Salvador Mendoza, Jr., and\n Anthony D. Johnstone, Circuit Judges.\n\n2 SEDLIK V. VON DRACHENBERG\n\n\n Per Curiam Opinion;\n Concurrence by Judge Wardlaw;\n Concurrence by Judge Johnstone\n\n\n SUMMARY \n\n\n Copyright\n\n The panel affirmed the district court’s judgment after a\njury trial in favor of Katherine Von Drachenberg and her\ntattoo parlor, High Voltage Tattoo, in an action brought\nunder the Copyright Act by Jeffrey Sedlik, alleging\ninfringement of his copyright in a photograph of Miles\nDavis.\n The jury found that six allegedly infringing works—a\ntattoo, a sketch, and four social media posts—were not\nsubstantially similar to the photograph. Von Drachenberg\nstipulated that four additional social media posts, referred to\nas the “Process Images,” which depicted her in the process\nof inking the tattoo, were substantially similar to the\nphotograph because they contained a reproduction of the\nphotograph, but the jury found that those works were not\ninfringing because they were a fair use of the photograph.\n The panel held that the district court’s denial of Sedlik’s\nmotion for summary judgment was not reviewable on appeal\nbecause it did not involve a purely legal question\nindependent of disputed facts.\n\n\n\n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\n SEDLIK V. VON DRACHENBERG 3\n\n\n The panel held that the district court did not err in\ndenying Sedlik’s Fed. R. Civ. P. 50(b) motion for judgment\nas a matter of law because he did not show that the jury’s\nverdict was contrary to the only reasonable conclusion\npermitted by the evidence for both the intrinsic and extrinsic\ntests for substantial similarity of the parties’ works. The\nextrinsic test assesses the objective similarities of the works,\nwhile the intrinsic test considers similarity of expression\nfrom the standpoint of the ordinary reasonable\nobserver. The intrinsic test is reserved for the finder of fact,\nwhile the extrinsic test may, when appropriate, be\ndetermined as a matter of law at an earlier stage of\nlitigation. The panel declined to disturb the jury’s findings\nas they pertained to the intrinsic test. The panel concluded\nthat because the jury found that the six works were not\nintrinsically similar to the photograph, it need not reach the\nextrinsic test.\n Concurring in the judgment, Judge Wardlaw wrote that\nshe fully agreed with Judge Johnstone’s concurrence and\nwith his analysis of the court’s flawed extrinsic-intrinsic test\nfor substantial similarity. Judge Wardlaw suggested that the\nintrinsic test for substantial similarity has fundamental\nflaws, and that the court should consider dispensing with it\naltogether.\n Concurring, Judge Johnstone, joined by Judge Wardlaw,\nwrote that he concurred in the per curiam opinion because it\napplied the current state of the court’s case law. Judge\nJohnstone also joined Judge Wardlaw’s call to realign the\ncourt’s copyright doctrine with the principles established by\nthe Copyright Clause, the Copyright Act, and the Supreme\nCourt’s copyright case law. Judge Johnstone added that the\ncourt’s doctrine has also drifted from its own origins. He\nwrote that the court developed the intrinsic test to protect a\n\n4 SEDLIK V. VON DRACHENBERG\n\n\nwork’s full expression, but over time it has lost its legal\ncontent, and now the standardless intrinsic test invites juries\nto reach copyright verdicts unconstrained by copyright law.\n The panel addressed additional issues in a concurrently-\nfiled memorandum disposition.\n\n\n\n COUNSEL\n\nWilliam F. Patry (argued), Quinn Emanuel Urquhart &\nSullivan LLP, New York, New York; Moon H. Lee, Quinn\nEmanuel Urquhart & Sullivan LLP, Los Angeles, California;\nRobert E. Allen, Jason C. Linger, and Lara A. Petersen,\nGlaser Weil Fink Howard Jordan & Shapiro LLP, Los\nAngeles, California; for Plaintiff-Appellant.\nAllen B. Grodsky (argued), Grodsky Olecki & Puritsky LLP,\nLos Angeles, California, for Defendants-Appellees.\nNancy E. Wolff, Cowan DeBaets Abrahams & Sheppard\nLLP, New York, New York, for Amicus Curiae the\nCopyright Alliance.\nThomas B. Maddrey, American Society of Media\nPhotographers, San Francisco, California; Stephen M.\nDoniger, Doniger Burroughs PC, Venice, California;\nMickey H. Osterreicher and Alicia W. Calzada, National\nPress Photographers Association, Athens, Georgia; for\nAmici Curiae American Society of Media Photographers,\nNational Press Photographers Association, American\nPhotographic Artists, American Society for Collective\nRights Licensing, Digital Media Licensing Association,\nProfessional Photographers of America, and North\nAmerican Nature Photography Association.\n\n SEDLIK V. VON DRACHENBERG 5\n\n\nMatthew Hersh, Mestaz Law, Phoenix, Arizona; Sandra\nAistars, Arts & Entertainment Advocacy Clinic, George\nMason University, Antonin Scalia Law School, Arlington,\nVirginia; for Amici Curiae Tattoo Artists Ross C. Berg,\nJonny Gomez, and Maxime Plesciabuchi.\nAndrew Grimm, Digital Justice Foundation, Omaha,\nNebraska; Gregory Keenan, Digital Justice Foundation,\nFloral Park, New York; for Amici Curiae Lynn Goldsmith\n& Digital Justice Foundation.\nChristopher J. Sprigman, Engelberg Center for Innovation\nLaw and Policy, New York University School of Law, New\nYork, New York; Molly Van Houweling, Berkeley Center\nfor Law & Technology, University of California Berkeley\nSchool of Law, Berkeley, California; for Amici Curiae\nSprigman and Van Houweling.\nErik Stallman, Samuelson Law Technology & Public Policy\nClinic, University of California Berkeley School of Law,\nBerkeley, California, for Amicus Curiae Professor Pamela\nSamuelson.\nRebecca Tushnet, Harvard Law School, Cambridge,\nMassachusetts, for Amici Curiae Copyright Law Professors.\nChristopher Bavitz, Cyberlaw Clinic, Harvard Law School,\nCambridge, Massachusetts, for Amicus Curiae Authors\nAlliance.\nCorynne McSherry and Kit Walsh, Electronic Frontier\nFoundation, San Francisco, California, for Amicus Curiae\nElectronic Frontier Foundation.\n\n6 SEDLIK V. VON DRACHENBERG\n\n\n OPINION\n\nPER CURIAM:\n\n Jeffrey Sedlik appeals the district court’s denial of his\nmotions for summary judgment and for judgment as a matter\nof law following a jury verdict finding that Katherine Von\nDrachenberg and her tattoo parlor, High Voltage Tattoo\n(“HVT”), were not liable for copyright infringement of\nSedlik’s photograph (“the Photograph”). 1 This case arose\nbecause Von Drachenberg used Sedlik’s photograph of\nMiles Davis as the basis of a tattoo of Davis’s likeness for\nher client (“the Tattoo”). Von Drachenberg also drew a\nsketch of the Photograph (“the Sketch”) and made several\nsocial media posts 2 related to the Tattoo and the Photograph.\nThe jury found that six allegedly infringing works—the\nTattoo, the Sketch, the Messy Progress Post, the Final Tattoo\nPost, the Instagram Story, and the Light Box Post—were not\nsubstantially similar to the Photograph. While Von\nDrachenberg stipulated that the four Process Images, which\ndepicted Von Drachenberg in the process of inking the\nTattoo, were substantially similar to the Photograph because\nthey contained a reproduction of the Photograph, the jury\nfound that those works were not infringing because they\nwere a fair use of the Photograph.\n\n\n\n1\n We address Sedlik’s appeal of the district court’s denial of his Rule\n50(b) motion as to fair use and motion for a new trial in a memorandum\ndisposition filed concurrently with this opinion.\n2\n Following the district court’s terminology, we refer to the social media\nposts as the “Messy Progress Post,” the “Final Tattoo Post,” the\n“Instagram Story,” the “Light Box Post,” and the “Process Images.”\n\n SEDLIK V. VON DRACHENBERG 7\n\n\n On appeal, Sedlik argues that the district court erred in\ndenying his motion for summary judgment and Rule 50(b)\nmotion for judgment as a matter of law. We affirm because\nthe district court’s denial of Sedlik’s motion for summary\njudgment is not reviewable on appeal, and the district court\ndid not err in denying Sedlik’s Rule 50(b) motion because\nthe jury’s verdict was based on an application of the intrinsic\ntest.\n I. Background\n Sedlik is a professional photographer and a professor\nwho has been featured in numerous publications throughout\nhis extensive career. Von Drachenberg is a professional\ntattoo artist and reality television star who has appeared on\nshows such as “Miami Ink” and “LA Ink.” HVT was Von\nDrachenberg’s tattoo shop.\n A. The Photograph\n In 1989, Sedlik created an iconic photograph depicting\nworld-renowned jazz musician Miles Davis. The Photograph\ndepicts a dimly lit Davis making a “Shh!” gesture with his\nfingers over pursed lips against a black background, his\nbrows slightly furrowed. Sedlik specifically adjusted\nDavis’s fingers so that the “Shh!” symbol would represent a\nseries of musical notes. He also adjusted Davis’s hair to\nachieve his desired creative expression, selected Davis’s\nwardrobe and jewelry, and instructed Davis on his\npositioning and facial expressions. Lastly, Sedlik made\nseveral decisions regarding lighting, camera positioning, and\nlens and shutter settings to further achieve his desired result.\n Sedlik has offered and sold non-exclusive copyright\nlicenses authorizing limited reproduction, distribution,\ndisplay, and creation of derivative works of the Photograph\n\n8 SEDLIK V. VON DRACHENBERG\n\n\nfor commercial and non-commercial purposes since its\ncreation. Sedlik has issued one tattoo license before, though\nit was retroactive, and he charged tattoo artist Bryan\nVanegas zero dollars. The Photograph was registered with\nthe United States Copyright Office in 1994 and remains\nregistered to this day.\n B. The Tattoo\n Von Drachenberg opened her own tattoo shop, HVT, as\na “creative space . . . for artists,” where she also privately\ntattooed clients of her own. Since 2012, Von Drachenberg\nhas not charged for her tattoos but instead treats them as gifts\nto the individuals that she tattoos. It is not possible to book\nan appointment with Von Drachenberg.\n In 2017, Blake Farmer—a friend of Von Drachenberg —\ntold her that he played the trumpet and expressed how\nimportant Miles Davis was to him. Von Drachenberg offered\nto gift Farmer a tattoo of Davis. Farmer sent Von\nDrachenberg’s assistant a digital file of the photo that he\nwanted to use as a reference. It was the Photograph. Farmer\ntestified that he chose the Photograph as a reference image\nbecause he “liked that it was simple,” and “[m]ost other\n[images of Davis] had him playing the trumpet,” which he\ndid not believe would be suitable for an arm tattoo.\n Over the course of two sessions in 2017, Von\nDrachenberg tattooed a realistic tattoo of Davis on Farmer’s\nshoulder. Von Drachenberg began by creating the Sketch.\nShe placed tracing paper over a copy of the Photograph,\nusing it to map out the spaces she would follow while\ntattooing. Von Drachenberg then created a stencil using a\nthermal-fax machine, which she applied to Farmer’s arm.\nThis created a map of sorts for Von Drachenberg to follow\nas she inked the tattoo by hand. After Farmer approved of\n\n SEDLIK V. VON DRACHENBERG 9\n\n\nthe placement and the size of the Tattoo, Von Drachenberg\nsketched what was essentially a “topographical map” using\na liner tattoo machine to guide her freehand shading. Ninety-\nnine percent of the Tattoo consisted of freehand shading.\nVon Drachenberg posted on social media several Process\nImages featuring KVD in the process of tattooing Farmer’s\narm. These posts show Sedlik’s full photo in the background.\nThe posts all featured the following image:\n\n\n\n\n The final Tattoo appears on the right, and the Photograph\non the left:\n\n10 SEDLIK V. VON DRACHENBERG\n\n\n\n\n C. The Action\n After discovering the Tattoo and Defendants’ social\nmedia posts, Sedlik contacted Von Drachenberg’s agent to\ndiscuss the matter, but received no response. Sedlik\nproceeded to file an action for copyright infringement in the\nCentral District of California.\n Sedlik moved for summary judgment on his copyright\ninfringement claims, but the district court denied the motion.\nThe district court found that, with respect to the Tattoo, there\nwere triable issues as to substantial similarity under both the\nextrinsic and intrinsic tests. The Tattoo was the only\nchallenged work analyzed at this stage.\n The case proceeded to trial in January 2024. At trial, the\njury had the opportunity to examine the Tattoo in person, on\nFarmer’s arm. The jury also heard testimony from Sedlik,\nVon Drachenberg, one of Von Drachenberg’s employees,\nand Bryan Vanegas.\n Both Sedlik and Defendants moved for judgment as a\nmatter of law before the case was submitted to the jury. See\n\n SEDLIK V. VON DRACHENBERG 11\n\n\nFed. R. Civ. Proc. 50(a). After resting their defense,\nDefendants stipulated that the four Process Images were\nsubstantially similar because they depicted the Photograph\nitself. The jury, however, found that the Process Images were\na fair use of the Photograph. 3 The jury found that the other\nworks—the Tattoo, the Sketch, the Messy Progress Post, the\nFinal Tattoo Post, the Instagram Story, and the Light Box\nPost—were not substantially similar.\n After trial, Sedlik moved for judgment as a matter of law.\nSedlik requested that the court displace the jury’s verdict on\nsubstantial similarity. The district court declined to do so for\nseveral reasons. The court stated that the intrinsic test for\nsubstantial similarity is “uniquely suited for determination\nby the trier of fact because of its focus on the lay person, and\nso a court must be reluctant to reverse a jury’s finding that\ntwo works are intrinsically similar.” The district court\nrejected Sedlik’s argument that he had satisfied the intrinsic\ntest because Defendants failed to present any evidence\nshowing that the works have a different total concept and\nfeel, noting that “the entire point of the intrinsic test is that it\nis from the perspective of the ordinary person without expert\nassistance.” It also rejected Sedlik’s arguments on the\nextrinsic test, stating that it “must draw the reasonable\ninference that the jury found that it was the unprotected\nelements of the [Photograph] that were copied.”\n\n\n3\n The jury mistakenly determined that eight posts that were found to be\nnot substantially similar were a fair use. When a jury gives “superfluous\nanswers in violation of a trial court’s express instructions contained on\nthe special verdict form,” those answers “do not constitute legitimate or\nviable findings of fact” and “[t]he trial court must therefore dismiss them\nas surplusage, as a matter of law.” Floyd v. Laws, 929 F.2d 1390, 1397\n(9th Cir. 1991).\n\n12 SEDLIK V. VON DRACHENBERG\n\n\n II. Standard of Review\n We review de novo a district court’s denial of a motion\nfor summary judgment, Banuelos v. Constr. Laborers’ Tr.\nFunds for S. Cal., 382 F.3d 897, 902 (9th Cir. 2004), and a\nrenewed motion for judgment as a matter of law under Rule\n50(b), Josephs v. Pac. Bell, 443 F.3d 1050, 1062 (9th Cir.\n2006).\n III. Discussion\n A copyright plaintiff must prove (1) ownership of a valid\ncopyright, and (2) the defendant copied protected aspects of\nthat work’s expression. Rentmeester v. Nike, Inc., 883 F.3d\n1111, 1116–17 (9th Cir. 2018), overruled on other grounds\nby Skidmore as Tr. for Randy Craig Wolfe Tr. v. Led\nZeppelin, 952 F.3d 1051 (9th Cir. 2020) (en banc). The\nsecond element has two separate components: “copying”\nand “unlawful appropriation.” Id. at 1117; 4 Melville B.\nNimmer & David Nimmer, Nimmer on Copyright\n§ 13.01[B] (2017). Only unlawful appropriation is at issue in\nthis appeal.\n Unlawful appropriation—that is, illicit copying—\nrequires a showing that two works are substantially similar.\nSkidmore, 952 F.3d at 1064. We use a two-part test to\ndetermine whether the defendant’s work is substantially\nsimilar to the plaintiff’s copyrighted work. Id. The first part,\nthe extrinsic test, “assesses the objective similarities of the\ntwo works, focusing only on the protectable elements of the\nplaintiff’s expression.” Rentmeester, 883 F.3d at 1118. In\nmaking this assessment, the court must filter out any\nunprotectable elements of the plaintiff’s works. Id. The\nsecond part, the intrinsic test, “test[s] for similarity of\nexpression from the standpoint of the ordinary reasonable\nobserver, with no expert assistance.” Jada Toys, Inc. v.\n\n SEDLIK V. VON DRACHENBERG 13\n\n\nMattel, Inc., 518 F.3d 628, 637 (9th Cir. 2008) (citation\nomitted). The intrinsic test is reserved for the finder of fact,\nwhile the extrinsic test may, when appropriate, be\ndetermined as a matter of law at an earlier stage of litigation.\nFunky Films, Inc. v. Time Warner Ent. Co., 462 F.3d 1072,\n1076–77 (9th Cir. 2006), overruled on other grounds by\nSkidmore, 952 F.3d 1051. Both tests must be satisfied for the\nworks to be deemed substantially similar. Id.\n A. Motion for summary judgment\n Sedlik first seeks review of the district court’s denial of\nhis motion for summary judgment, contending that the\ndistrict court erred in its application of the extrinsic test for\nsubstantial similarity “due to the overwhelming and obvious\nsimilarities” between the Photograph and the challenged\nworks. Generally, the denial of a motion for summary\njudgment is not reviewable on an appeal from the final\njudgment after a full trial on the merits, because “it would\nbe . . . unjust to deprive a party of a jury verdict after the\nevidence was fully presented, on the basis of an appellate\ncourt’s review of whether the pleadings and affidavits at the\ntime of the summary judgment motion demonstrated the\nneed for a trial.” Locricchio v. Legal Servs. Corp., 833 F.2d\n1352, 1359 (9th Cir. 1987); see also, e.g., Ortiz v. Jordan,\n562 U.S. 180, 183–84 (2011) (“May a party . . . appeal an\norder denying summary judgment after a full trial on the\nmerits? Our answer is no.”); Dupree v. Younger, 598 U.S.\n729, 735–36 (2023) (“[A]n appellate court’s review of\nfactual challenges after a trial is rooted in the complete trial\nrecord, which means that a district court’s factual rulings\nbased on the obsolete summary-judgment record are\nuseless”).\n\n14 SEDLIK V. VON DRACHENBERG\n\n\n We recognize a narrow exception to this rule exists when\nsummary judgment involves “a purely legal\nquestion . . . whose answer is independent of disputed\nfacts.” Jensen v. EXC, Inc., 82 F.4th 835, 857 (9th Cir. 2023)\n(quoting Dupree, 598 U.S. at 737); see also Pavon v. Swift\nTransp. Co., 192 F.3d 902, 906 (9th Cir. 1999). This\nexception does not apply here because Sedlik’s arguments\n“hardly present ‘purely legal’ issues capable of resolution\n‘with reference only to undisputed facts.’” Williams v. Gaye,\n895 F.3d 1106, 1122 (9th Cir. 2018) (quoting Ortiz, 562 U.S.\nat 189). Rather, the district court’s orders denying Sedlik’s\nmotion for summary judgment and motion for\nreconsideration were based on the existence of multiple\ntriable issues of fact as to substantial similarity and fair use.\nThus, the district court’s ruling does not involve the sort of\n“legal issue” that this court typically reviews in a narrow\nsubset of cases. Id.; see also, e.g., Pavon, 192 F.3d at\n906 (reviewing the district court’s summary judgment ruling\non claim preclusion); Escriba v. Foster Poultry Farms, Inc.,\n743 F.3d 1236, 1243 (9th Cir. 2014) (reviewing whether “the\ndistrict court erred as a matter of law by entertaining\n[defendant’s] ‘legally impossible’ theory of the case that\n[plaintiff] affirmatively declined to take FMLA leave”). We\ntherefore decline to review the district court’s denial of\nsummary judgment.\n B. Motion for judgment as a matter of law\n Sedlik also appeals the district court’s denial of his\nrenewed motion for judgment as a matter of law. In\nreviewing the district court’s denial, we must determine\n“whether the evidence permits only one reasonable\nconclusion, and that reasonable conclusion is contrary to the\njury’s verdict.” See Josephs, 443 F.3d at 1062. Because\nSedlik brought a Rule 50(a) motion on substantial similarity,\n\n SEDLIK V. VON DRACHENBERG 15\n\n\nhis Rule 50(b) motion was properly made. Thus, Sedlik must\nshow that the jury’s verdict was contrary to the only\nreasonable conclusion permitted by the evidence for both the\nintrinsic and extrinsic tests, since both tests are required for\nsubstantial similarity. Funky Films, 462 F.3d at 107.\n Sedlik argues that no reasonable juror could find that the\nsix works were not substantially similar to the Photograph.\nAs for intrinsic similarity, he argues that “all of the works\nhave a ‘mood and sentiment’ of melancholy, moodiness, and\nmovement,” and thus the intrinsic test is met as a matter of\nlaw. We have recognized, however, that “the intrinsic test\nfor substantial similarity is ‘uniquely suited for\ndetermination by the trier of fact’” because of its focus on\nthe layperson. Gray v. Hudson, 28 F.4th 87, 97 (9th Cir.\n2022) (quoting Sid & Marty Krofft Television Prods., Inc. v.\nMcDonald’s Corp., 562 F.2d 1157, 1166 (9th Cir. 1977)).\nFor that reason, we are reluctant to reverse a jury’s\napplication of the intrinsic test. We therefore decline to\ndisturb the jury’s implicit findings as they pertain to the\nintrinsic test for substantial similarity. See Three Boys Music\nCorp. v. Bolton, 212 F.3d 477, 485 (9th Cir. 2000), overruled\non other grounds by Skidmore, 952 F.3d 1051.\n Sedlik alternatively argues that the “intrinsic test is not\nneeded” at all because the objective similarities between the\nsix works and the Photograph are “overwhelming.” He bases\nthis argument on our decision in Unicolors, Inc. v. Urban\nOutfitters, Inc., 853 F.3d 980 (9th Cir. 2017). Unicolors held\nthat in “exceptional cases,” a district court may grant\nsummary judgment to a plaintiff on the basis that the\n“extrinsic similarity is so strong” that “no reasonable jury\ncould find that the works are not substantially similar in their\noverall concept and feel.” Id. at 986–87. In such cases, the\ncourt “need not delve into a complex subjective analysis of\n\n16 SEDLIK V. VON DRACHENBERG\n\n\nthe works to assess substantial similarity and does not risk\nsupplanting the jury’s subjective interpretation with its\nown.” Id. Here, on summary judgment, the district court\nconcluded to the contrary—that the application of the\nextrinsic test was a triable issue for the jury. And following\na jury verdict finding no substantial similarity based on the\nevidentiary record, the different procedural posture means\nthat reversing the jury verdict would be tantamount to\n“supplanting the jury’s subjective interpretation with [our]\nown,” which we cannot do. Id. We therefore affirm the jury’s\nverdict based on the intrinsic test. And because the jury\nfound that the six works were not intrinsically similar to the\nPhotograph, we need not reach the extrinsic test for\nsubstantial similarity. See Cavalier v. Random House, Inc.,\n297 F.3d 815, 822 (9th Cir. 2002) (both intrinsic and\nextrinsic tests must be met to find that the allegedly\ninfringing work was substantially similar to the protected\nwork).\n IV. Conclusion\n First, the district court’s denial of Sedlik’s motion for\nsummary judgment is not reviewable on appeal. Although a\nnarrow exception applies when summary judgment involves\na purely legal question, the district court’s order denying\nsummary judgment was based on several triable issues of\nfact as to substantial similarity. Second, the district court did\nnot err in denying Sedlik’s Rule 50(b) motion for judgment\nas a matter of law. Because the jury’s verdict was based on\nan application of the intrinsic test, we will not second-guess\nit.\n AFFIRMED.\n\n SEDLIK V. VON DRACHENBERG 17\n\n\nWARDLAW, Circuit Judge, with whom JOHNSTONE,", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11234838/", "author_raw": "PER CURIAM"}, {"author": "Circuit Judge, joins, concurring", "type": "concurrence", "text": "Circuit Judge, joins, concurring in the judgment:\n\n I fully agree with Judge Johnstone’s excellent\nconcurrence and with his analysis of our flawed extrinsic-\nintrinsic test for substantial similarity. I write separately to\nsuggest that the “intrinsic test” for substantial similarity has\nfundamental flaws, and we should consider dispensing with\nit altogether.\n Consider the dispositive role the intrinsic test played here\nin resolving a case with complex legal questions.\nPhotographer Jeffrey Sedlik claimed that tattoo artist\nKatherine Von Drachenberg infringed his copyright in his\niconic photograph of the trumpet player Miles Davis. The\ncase involved complex issues of copyright law, including\n“distinguishing between the protected and unprotected”\ncomponents of a work depicting a human face. Photographs\nof people are notoriously tricky subjects of copyright\nanalysis, given that many components of a photograph, such\nas a person’s facial features and pose, are not protected by\ncopyright when “viewed in isolation,” and “[w]hat is\nprotected by copyright is the photographer’s selection and\narrangement of the photo’s otherwise unprotected\nelements.” Rentmeester v. Nike, Inc., 883 F.3d 1111, 1119\n(9th Cir. 2018). The case presented the additional wrinkle\nthat the allegedly infringing work was in a different\nmedium—tattooed on the human body.\n The outcome, however, did not come down to these\ndifficult questions of copyright law. Rather, it came down\nto the “intrinsic test,” a test created by our court and which\nthe Supreme Court has never blessed. The intrinsic test is\n“subjective and asks whether the ordinary, reasonable person\nwould find the total concept and feel of the works to be\n\n18 SEDLIK V. VON DRACHENBERG\n\n\nsubstantially similar.” Three Boys Music Corp. v. Bolton,\n212 F.3d 477, 485 (9th Cir. 2000) (citation and internal\nquotation marks omitted). Because the intrinsic test\nconsiders the perspective of the “lay observer,” “analytic\ndissection and expert testimony are not appropriate.” Sid &\nMarty Krofft Television Prods., Inc. v. McDonald’s Corp.,\n562 F.2d 1157, 1164–66 (9th Cir. 1977); see also Funky\nFilms, Inc. v. Time Warner Ent. Co., L.P., 462 F.3d 1072,\n1077 (9th Cir. 2006) (intrinsic test is “exclusively the\nprovince of the jury”). The intrinsic test is “virtually devoid\nof analysis” and is “a mere subjective judgment as to\nwhether two literary works are or are not similar.” Shaw v.\nLindheim, 919 F.2d 1353, 1357 (9th Cir. 1990).\n In line with our precedent, the jury here was instructed\nthat “[t]he intrinsic test is a holistic comparison that focuses\non whether the works are substantially similar in the total\nconcept and feel of the works.” Then, with no more\nguidance, 1 the jury was left to consider a “holistic\ncomparison [of] . . . the total concept and feel” of the works.\nId. The jury found that the works did not have a substantially\nsimilar “total concept and feel,” and thus failed the intrinsic\ntest. Because a copyright plaintiff must meet both the\nextrinsic and intrinsic tests for substantial similarity, the\njury’s finding on the intrinsic test was fatal to Sedlik’s claim.\n This test and outcome distort copyright law. The\nintrinsic test’s instruction to consider the “total concept and\nfeel of the works” contradicts the Copyright Act’s statement\n\n1\n The jury had previously received the instruction that “[o]nly the\nparticular expression of an idea can be copyrighted” and copyright does\nnot protect “the underlying ideas contained in the work, such as any\nprocedures, processes, systems, methods of operation, concepts,\nprinciples or discoveries.”\n\n SEDLIK V. VON DRACHENBERG 19\n\n\nthat “[i]n no case does copyright protection . . . extend to any\nidea [or . . .] concept.” 17 U.S.C. § 102(b); see Pamela\nSamuelson, A Fresh Look at Tests for Nonliteral Copyright\nInfringement, 107 Nw. U.L. Rev. 1821, 1832 (2013)\n(“Strangely enough, no court applying the total concept test\nhas noticed that [it] might run afoul of the strictures of\n§ 102(b).”). As Professor Nimmer explains, the “total\nconcept and feel” test “subvert[s] the very essence of\ncopyright, namely the protection of original expression.” 4\nMelville B. Nimmer & David Nimmer, Nimmer on\nCopyright § 13D.31[C] (2025). Consider the two parts of\nthe standard, “concept” and “[f]eel”: “Concepts are\nstatutorily ineligible for copyright protection,” and “feel\nhardly fares better; it is hard to imagine a more amorphous\nreferent.” Id. (internal quotation marks omitted). And, of\ncourse, a work’s “feel” may arise from unprotected elements\nof a work. See Christopher Jon Sprigman & Samantha Fink\nHedrick, The Filtration Problem in Copyright’s\n“Substantial Similarity” Infringement Test, 23 Lewis &\nClark L. Rev. 571, 580 (2019).\n The intrinsic test is a creation of our court; the Supreme\nCourt has never said that the ordinary observer’s\nspontaneous impression of the “total concept and feel of the\nworks,” without any expert guidance, should be a dispositive\nfactor in copyright infringement. Indeed, Supreme Court\nprecedent suggests the opposite: that, to accord with the\nCopyright Act, a court should focus on carefully filtering out\nconcepts and ideas. While the Supreme Court has not\nspelled out the exact inquiry for substantial similarity, Feist\nPublications, Inc. v. Rural Telephone Service Co., Inc., 499\nU.S. 340 (1991), is instructive on this point. Feist dealt with\na copyright infringement suit brought by Rural Telephone\nService Company (“Rural”) against Feist Publications\n\n20 SEDLIK V. VON DRACHENBERG\n\n\n(“Feist”). Rural published a telephone directory, which it\nrefused to license to Feist. Id. at 343. Feist, then, extracted\nlistings from Rural’s directory, and published its own\ntelephone directory. Id. at 343–44. At issue was whether\nFeist’s use of Rural’s white pages constituted copyright\ninfringement. Id. at 344.\n In finding that Feist had not infringed Rural’s copyright,\nthe Supreme Court explained that “[t]he mere fact that a\nwork is copyrighted does not mean that every element of the\nwork may be protected. Originality remains the sine qua\nnon of copyright; accordingly, copyright protection may\nextend only to those components of a work that are original\nto the author.” Id. at 348. Thus, the Supreme Court carefully\nparsed the original, protectible components of Rural’s\ndirectory from the unoriginal, unprotectable components.\nThe Supreme Court concluded that a directory’s “choices as\nto selection and arrangement [of the compilations], so long\nas they are made independently by the compiler and entail a\nminimal degree of creativity,” could be “sufficiently\noriginal” to be protected. Id. at 348. The “raw facts,”\nhowever—the names and phone numbers themselves—were\nunoriginal and “may be copied at will.” Id. at 350. The\nSupreme Court concluded that because Rural’s white pages\nwere “limited to basic subscriber information and arranged\nalphabetically,” they were “selected, coordinated, and\narranged in a way that utterly lacks originality,” and “Feist’s\nuse of the listings cannot constitute infringement.” Id. at\n363–64.\n Crucially, Feist never suggested that the ordinary\nobserver’s impression of the “concept and feel” of the works\nwas essential to infringement. As Nimmer describes, Feist\ndid not consider the “total concept and feel” of the works,\nbut rather defined infringing conduct as the “copying of\n\n SEDLIK V. VON DRACHENBERG 21\n\n\nconstituent elements of the work that are original.” 4\nNimmer § 13D.15 (quoting Feist, 499 U.S. at 361).\n“Indeed, to focus on the precise scope of defendant’s\nadmitted copying and to detail how that copying was limited\nto unprotected expression, it would seem that—to the exact\ncontrary of the audience test—critical analysis is essential.\nThe Court’s approach in Feist, on the facts there presented,\nis therefore inhospitable to an unadorned audience test.” 4\nNimmer § 13D.15.\n After all, copyright law “is intended to protect writers\nfrom the theft of the fruits of their labor, not to protect\nagainst the general public’s ‘spontaneous and immediate’\nimpression that the fruits have been stolen.” Id. at\n§ 13D.16[B][1]. To be sure, a jury’s observation that two\nworks have a similar “concept and feel” may “be important\nevidence” of infringement. Id. But the jury’s impression\nthat no such similarity exists—as occurred here—does not\nnecessarily mean there was no infringement, as there can be\n“theft without an immediate and spontaneous detection by\nthe ordinary observer.” Id. This is particularly true where,\nas here, the works exist in different media: a photograph and\na tattoo. An ordinary observer, untrained in both media,\n“may fail to note similarities that, if analyzed and dissected,\nwould be only too apparent.” Id. at § 13D.16[B][2]. Or,\nworse, an ordinary observer may find, in practice, that works\nin different media almost never have the same “total concept\nand feel.” Thus, the intrinsic test leaves the artist’s work\nvulnerable to “clever thieves.” Id. at § 13D.16[B][3].\n Thus, I suggest that we consider dispensing with the\nintrinsic test. As the Eleventh Circuit has recognized, “the\nability to separate protectable expression from non-\nprotectable expression is, in reality, a question of law or, at\nthe very least, a mixed question of law and fact.” Intervest\n\n22 SEDLIK V. VON DRACHENBERG\n\n\nConst., Inc. v. Canterbury Estate Homes, Inc., 554 F.3d 914,\n920 (11th Cir. 2008). Thus, “[i]t is difficult for a juror, even\nproperly instructed, to conclude, after looking at two works,\nthat there is no infringement where, say, 90% of one is a\ncopy of the other, but only 15% of the work is protectable\nexpression that has not been copied.” Id.\n Allowing the jury to render the final decision as to\ninfringement under the guise of the work’s “total concept\nand feel,” immune from an appellate court’s review,\nimpermissibly gives this complex legal question—a\nquestion of “unlawful appropriation”—to the factfinder. See\nRentmeester, 883 F.3d at 1117 (emphasis added). A better\nsolution, in my view, would be to focus the test on the\nfiltration of protectable and unprotectable elements, and\nremove any inquiry into a work’s “total concept and feel.”\nTherefore, I agree with Judge Johnstone’s assessment that\nhad we been able to do so in this case, we would have\nconcluded that Von Drachenberg’s tattoo infringed Sedlik’s\ncopyright in his photograph of Miles Davis.\n\n\nJOHNSTONE, Circuit Judge, with whom WARDLAW,", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11234838/", "author_raw": "Circuit Judge, joins, concurring"}, {"author": "Circuit Judge, joins, concurring", "type": "concurrence", "text": "Circuit Judge, joins, concurring:\n\n Tattoo artist Kat Von Drachenberg inked photographer\nJeffrey Sedlik’s photograph of Miles Davis on a friend’s\narm. There is no dispute that Sedlik held a valid copyright in\nthe photograph or that Von Drachenberg copied from it to\ncreate the tattoo. She traced Sedlik’s photograph on a light\nbox to create a stencil, which she transferred onto her\nfriend’s arm. Then, with Sedlik’s photograph hanging at her\nside as a reference, she tattooed its image onto her friend’s\nskin. Von Drachenberg posted photos of the process and\n\n SEDLIK V. VON DRACHENBERG 23\n\n\nresulting tattoo on social media to market her artistry and\ntattoo shop.\n The tattoo resembles the protected aspects of the\nphotograph. “To the[] trained eyes” of amici tattoo artists,\n“there is no difference between the two works that is not\nexplained by the medium in which [Sedlik’s photograph]\nwas replicated into [Von Drachenberg’s tattoo].” It shares all\nits major creative elements: Davis’s distinctive finger pose\n(arranged by Sedlik); his facial expression (encouraged by\nSedlik); his dark wavy hair surrounding his face (styled at\nSedlik’s direction); the shadows and highlights on his face\nand hands (lit by Sedlik); and the specific angle, position,\nand focus of the viewer’s perspective (chosen by Sedlik).\nVon Drachenberg admitted at trial that these features were\n“very similar” to the photograph. Indeed, Von\nDrachenberg’s friend had asked that the tattoo match\nSedlik’s photograph, Von Drachenberg followed a process\ndesigned to do so, and her shop concluded that she\nsucceeded—it touted the tattoo on social media as “100%\nexactly the same as the reference.”\n But when Sedlik sued Von Drachenberg for copyright\ninfringement, a jury found that the tattoo was not\n“substantially similar” to the photograph and returned a\nverdict for Von Drachenberg. At trial, Von Drachenberg\ntestified that she made minor changes from Sedlik’s\nphotograph because of the inherent challenges in replicating\na photograph on human skin. She “added shading,\nhighlights, and texture to several parts of Miles Davis’s\nface”; altered waves and highlights in his hair to “creat[e] a\nkind of ‘visual noise’ that flies all around the tattoo and gives\nthe sense of movement,” as well as leaving room for\nadditional tattoos; and left out certain details of the\nphotograph, like Sedlik’s reflection in Davis’s eyes, part of\n\n24 SEDLIK V. VON DRACHENBERG\n\n\nDavis’s wrist and his clothing, and the photograph’s black\nbackground. In determining substantial similarity, however,\nthese differences matter little. See Newton v. Diamond, 388\nF.3d 1189, 1195 (9th Cir. 2004) (“[N]o plagiarist can excuse\nthe wrong by showing how much of his work he did not\npirate.” (quoting Sheldon v. Metro–Goldwyn Pictures Corp.,\n81 F.2d 49, 56 (2d Cir. 1936))).\n Instead, what our cases required the jury to focus on—\nand what mattered most to the verdict—was the jury’s\nsubjective perception of “the total concept and feel” of the\nworks. See Doc. 219, Jury Instructions, Page ID 4180\n(describing the intrinsic test as “a holistic comparison that\nfocuses on whether the works are substantially similar in the\ntotal concept and feel of the works”). As Von Drachenberg\ncorrectly argues, our “intrinsic test” for substantial similarity\nfocuses solely on “an ordinary person’s holistic and\nsubjective impressions of the similarities in the works” based\non “total concept and feel.” And here the jury felt that Von\nDrachenberg’s tattoo was not “substantially similar” to\nSedlik’s photograph. But a jury’s job is to find facts, not\nfeelings. Because a jury’s subjective impression of a work’s\n“total concept and feel” is all but unreviewable, we have\nnever reversed a jury’s no-infringement verdict under the\nintrinsic test.\n The per curiam opinion applies the current state of our\ncase law in affirming the district court, so I concur. I also\njoin Judge Wardlaw’s call to realign our copyright doctrine\nwith the principles established by the Copyright Clause, the\nCopyright Act, and the Supreme Court’s copyright case law.\nI write to add that our doctrine has also drifted from its own\norigins. A half-century ago, we developed the intrinsic test\nto protect a work’s full expression. But over time it has lost\nits legal content. Now the standardless intrinsic test invites\n\n SEDLIK V. VON DRACHENBERG 25\n\n\njuries to reach copyright verdicts unconstrained by copyright\nlaw. In practice, its holistic protection has become an empty\npromise.\n I. We developed the intrinsic test to protect the whole\n of an expression.\n Federal copyright law protects “pictorial . . . works,” but\n“[i]n no case does copyright protection . . . extend to\nany . . . concept.” 17 U.S.C. § 102(a)(5), (b). So how did we\nget from a statute that protects against the copying of\npictures, not concepts, to a doctrine that turns on similarity\nin “total concept and feel”? The roots of the intrinsic test lie\nin the basic rule that copyright protects only an original\nexpression of an idea—not the idea itself, nor the use of\nunoriginal scènes à faire that are necessary to express it. See\nBaker v. Selden, 101 U.S. 99, 101–03 (1879); 12 Melville B.\nNimmer & David Nimmer, Nimmer on Copyright\n§§ 313.3(A), 313.4(I) (2025). As Judge Learned Hand\nlamented almost a century ago, distinguishing protected\nexpression from unprotected ideas and stock elements is no\neasy task. Nichols v. Universal Pictures Corp., 45 F.2d 119,\n121 (2d. Cir 1930) (“Nobody has ever been able to fix that\nboundary, and nobody ever can.”). It was in undertaking that\nchallenge in Roth Greeting Cards v. United Card Co., 429\nF.2d 1106 (9th Cir. 1970), that we first looked to “total\nconcept and feel.”\n Roth concerned a defendant’s allegedly unlawful\ncopying of the plaintiff’s greeting cards. Id. at 1107–08. Like\nthe works at issue, the defendant’s cards “b[ore] a\nremarkable resemblance” to plaintiff’s copyrighted work,\nwith many similarities: “the characters depicted in the art\nwork,” the specific phrases and lettering, and “the\narrangement of the words on the greeting card[s].” Id. at\n\n26 SEDLIK V. VON DRACHENBERG\n\n\n1107, 1110. Yet the district court concluded that the\ndefendant did not copy any protected expression because\nmost of these similarities—like the common phrases used in\nthe cards—consisted of unprotected ideas or stock elements.\nId. at 1109.\n On appeal, we agreed that many of the cards’ shared\nelements were unprotected in isolation. Id. But that did not\nend the inquiry: “proper analysis of the problem require[d]\nthat all elements of each card, including text, arrangement of\ntext, art work, and association between art work and text, be\nconsidered as a whole.” Id. Taken together, these elements\ncreated an expression that was sufficiently “original” to\nmerit copyright protection. Id. at 1109–10. And we held that,\ndespite some differences in specific elements, the\ndefendant’s cards were substantially similar to the plaintiff’s\nprotected combination because “in total concept and feel the\ncards . . . [we]re the same.” Id. at 1110. Roth used “total\nconcept and feel” to refer to what our more recent cases\ndescribe as the “protectable . . . selection and arrangement\nof . . . otherwise unprotected elements.” Tangle, Inc. v.\nAritzia, Inc., 125 F.4th 991, 997 (9th Cir. 2025) (internal\nquotations omitted) (quoting Hanagami v. Epic Games, Inc.,\n85 F.4th 931, 943 (9th Cir. 2023)).\n We incorporated Roth’s meaning of “total concept and\nfeel” into our first articulation of the intrinsic test in Sid &\nMarty Krofft Television Prods., Inc. v. McDonald’s Corp.,\n562 F.2d 1157 (9th Cir. 1977) (“Krofft”). There, we\naddressed a claim that “Mayor McCheese,” a character in a\nMcDonald’s advertising campaign, infringed the plaintiffs’\ncopyright in H.R. Pufnstuf, a character in a children’s\ntelevision show. Id. at 1161–62. “The real task in a copyright\ninfringement action,” we reasoned, “is to determine whether\nthere has been copying of the expression of an idea rather\n\n SEDLIK V. VON DRACHENBERG 27\n\n\nthan just the idea itself.” Id. at 1163. Because there “must be\nsubstantial similarity not only of the general ideas but of the\nexpressions of those ideas,” we set forth our now-familiar\ntwo-part test for substantial similarity. Id. at 1164.\n In part one of the analysis, the “extrinsic test,” we ask\n“whether there is substantial similarity in ideas” underlying\nthe two works. Id. at 1164 (emphasis added). We do so by\nexamining “specific criteria which can be listed and\nanalyzed,” some of which might be individually\nunprotectable, like “the type of artwork involved, the\nmaterials used, the subject matter, and the setting for the\nsubject.” Id. While still a factual inquiry, this “analytic\ndissection” could “often be decided as a matter of law” by\nbreaking down the works into their constituent elements and\ncomparing those elements for proof of copying. Id. If this\nextrinsic comparison shows a substantial similarity between\nthese elements, then the trier of fact assesses the intrinsic\nsimilarity.\n In part two, the “intrinsic test,” we ask “whether there is\nsubstantial similarity in expressions” of the shared idea\nbased on the “response of the ordinary reasonable person.”\nId. (emphasis added). This inquiry turns on the overall\n“impact of the respective works upon the minds” of lay\nobservers, making it “uniquely suited for determination by\nthe trier of fact.” Id. at 1166. Thus, in Krofft, we held that the\nexistence of some dissimilarities in “the constituent parts” of\nthe two characters at issue—like their “clothing, colors,\nfeatures, and mannerisms”—did not preclude a finding of\nsubstantial similarity under the intrinsic test. Id. at 1165–67.\nInstead, as in Roth, what mattered was that Mayor McCheese\n“captured the ‘total concept and feel’ of the Pufnstuf show”\nwhen the arrangement of all the elements was considered as\na whole. Id. at 1167 (quoting Roth, 429 F.2d at 1110). Under\n\n28 SEDLIK V. VON DRACHENBERG\n\n\nthis broader, holistic view of substantial similarity, we\naffirmed the jury’s infringement verdict. Id.\n In the decade after Krofft, we continued applying the\nextrinsic test to assess the similarity of ideas based on the\nworks’ individual elements, then used the intrinsic test to\ndiscern the similarity of the works’ expression of those\nshared ideas based on the overall effect—that is, “total\nconcept and feel”—of the combination of those elements.\nSee, e.g., See v. Durang, 711 F.2d 141, 143–44 (9th Cir.\n1983); Litchfield v. Spielberg, 736 F.2d 1352, 1356 (9th Cir.\n1984); Berkic v. Crichton, 761 F.2d 1289, 1292 (9th Cir.\n1985); McCulloch v. Albert E. Price, Inc., 823 F.2d 316, 319\n(9th Cir. 1987); Narell v. Freeman, 872 F.2d 907, 912–13\n(9th Cir. 1989). Over time, however, we gradually expanded\nthe types of similarities considered in the extrinsic analysis.\nAlthough Krofft’s extrinsic test had looked only to discrete\nelements like “the type of artwork” or “subject matter” of\ntwo works, 562 F.2d at 1164, later cases also compared\nbroader similarities of “theme” and “mood,” see, e.g.,\nLitchfield, 736 F.2d at 1356–57; Berkic, 761 F.2d at 1292;\nOlson v. Nat’l Broad. Co., 855 F.2d 1446, 1450–51 (9th Cir.\n1988), which Krofft had examined as part of the intrinsic test,\n562 F.2d at 1166.\n We recognized the increasingly “lengthy list of concrete\nelements” considered “under the extrinsic test” in Shaw v.\nLindheim, 919 F.2d 1353, 1356 (9th Cir. 1990). And we\nreasoned that the shift required a rethinking of the extrinsic\ntest: “Now that it include[d] virtually every element that may\nbe considered concrete,” the test could “no longer be seen as\na test for mere similarity of ideas.” Id. at 1357. Shaw thus\nrecast the extrinsic test as an “objective” analysis of the\nsimilarity of works’ expression, not just of the unprotected\nideas underlying that expression. Id. But if the extrinsic test\n\n SEDLIK V. VON DRACHENBERG 29\n\n\nexamined “all objective manifestations of creativity,”\nincluding the cumulative impact of works’ combination of\ndiscrete elements, where did that leave the intrinsic test? In\nShaw’s words, it “ha[d] become a mere subjective judgment\nas to whether two . . . works are or are not similar,” which\nwas “now virtually devoid of analysis.” Id. Put another way,\nthe extrinsic test “ha[d] expanded at the expense of the now\nalmost atavistic” intrinsic test. Douglas Y’Barbo, The Origin\nof the Contemporary Standard for Copyright Infringement,\n6 J. Intell. Prop. L. 285, 311 (1999).\n Shaw’s reframing of the extrinsic and intrinsic test “as\nobjective and subjective analyses of expression” has\nremained the law of our circuit for thirty-five years. 919 F.2d\nat 1357. While once we limited our extrinsic analysis to\ndiscrete elements, now we consider all objective similarities,\nincluding those arising from works’ overall “selection and\narrangement” of elements at the first step. Woodland v. Hill,\n136 F.4th 1199, 1210–11 (9th Cir. 2025) (quoting\nRentmeester v. Nike, Inc., 883 F.3d 1111, 1119 (9th Cir.\n2018)). And where our old intrinsic test involved at least\nsome analysis of how works combine different elements to\ncreate an overall “concept and feel,” the modern test\ninvolves a purely “subjective comparison of the works” in\nthe often decisive second step. Rentmeester, 883 F.3d at\n1118. What began as a factual test for determining\nsubstantial similarity of an idea’s overall expression has\nbecome a subjective test based on the jury’s own impression.\n II. The intrinsic test leads to unpredictable and\n asymmetrical results.\n As it now operates, the intrinsic test has distorted\ncopyright law in our circuit. Because we have stripped away\nany objective analysis from the intrinsic test, courts cannot\n\n30 SEDLIK V. VON DRACHENBERG\n\n\ndecide it as a matter of law, precluding summary judgment\nfor almost all copyright plaintiffs. The lack of objective\nconsiderations also leaves juries without guidance at trial,\nleading to unpredictable verdicts based on instructions to\ndecide cases based on “total concept and feel.” And while\ndefendants may appeal infringement verdicts under the\nextrinsic test, plaintiffs have no meaningful way to seek\nreview of unfavorable judgments. The result has been to\nincrease unpredictability of outcomes in copyright cases and\nto stack the procedural deck against plaintiffs on questions\nof substantial similarity.\n To start, the intrinsic test makes it almost impossible for\ncopyright plaintiffs to win their cases at summary judgment.\nBecause courts may decide the extrinsic test as a matter of\nlaw, defendants often dispose of cases at summary judgment\nby showing a lack of extrinsic similarity. See, e.g., Folkens\nv. Wyland Worldwide, LLC, 882 F.3d 768, 776 (9th Cir.\n2018); Brown Bag Software v. Symantec Corp., 960 F.2d\n1465, 1475–77 (9th Cir. 1992). Plaintiffs, on the other hand,\nmust satisfy both the extrinsic and intrinsic tests to succeed\nin their claims. Rentmeester, 883 F.3d at 1118 (citing Funky\nFilms, Inc. v. Time Warner Ent. Co., 462 F3d 1072, 1077\n(9th Cir. 2006). And we have held that “it is improper . . . to\nbase a grant of summary judgment on [the] purely subjective\ndetermination of similarity” that now guides the intrinsic\ntest. Shaw, 919 F.2d at 1359; see also L.A. Printex Indus.,\nInc. v. Aeropostale, Inc., 676 F.3d 841, 852 (9th Cir. 2012).\nWe have strayed from that rule in only one published\nopinion, affirming summary judgment under the intrinsic\ntest in the rare instance where two works were\n“overwhelmingly identical” and in the same medium.\nUnicolors, Inc. v. Urban Outfitters, Inc., 853 F.3d 980, 987\n(9th Cir. 2017) (quoting Twentieth Century–Fox Film Corp.\n\n SEDLIK V. VON DRACHENBERG 31\n\n\nv. MCA, Inc., 715 F.2d 1327, 1330 (9th Cir. 1983)).\nFunctionally precluding summary judgment for copyright\nplaintiffs favors defendants. See Clark D. Asay, An\nEmpirical Study of Copyright’s Substantial Similarity Test,\n13 U.C. Irvine L. Rev. 35, 88 (2022). It also “substantially\ndilute[s]” the effect of Rule 56. Unicolors, 853 F.3d at 987.\nAnd as amicus the Copyright Alliance explains, requiring\nthat all plaintiffs proceed to trial in clear-cut cases “runs the\nhigh risk of denying [them] the ability to enforce their\ncopyrights by making it prohibitively expensive to do so.”\n Even when plaintiffs with strong cases reach trial, their\nchances of prevailing are still uncertain. The intrinsic test\n“ostensibly assesses qualities of the works themselves, ones\nthat exist independently of the observer.” Bruce E. Boyden,\nThe Grapes of Roth, 99 Wash. L. Rev. 1093, 1127 (2024).\nBut substantial similarity in “total concept and feel” depends\non an observer’s impressions, which may vary dramatically\nfrom person to person. Id. Because the test is “devoid of\nanalysis,” Shaw, 919 F.2d at 1357, “[t]he jury is left to use\nits subjective judgment, often . . . without instructions\ndesigned to steer that judgment.” Christopher Jon Sprigman\n& Samantha Fink Hedrick, The Filtration Problem in\nCopyright’s “Substantial Similarity” Infringement Test, 23\nLewis & Clark L. Rev. 571, 580 (2019). So “when\nsubstantial similarity cases go to the jury,” as they must for\nmost plaintiffs to prevail, “a panel of non-experts is asked to\napply an empty standard.” Boyden, supra, at 1098.\n The intrinsic test’s vagueness is made worse because the\nparties cannot use expert testimony to focus the inquiry.\nSubstantial similarity, after all, “is to be judged by the\nordinary observer.” Mark A. Lemley, Our Bizarre System\nfor Proving Copyright Infringement, 57 J. Copyright Soc’y\nU.S.A. 719, 738–39 (2010); see Krofft, 562 F.2d at 1164. So\n\n32 SEDLIK V. VON DRACHENBERG\n\n\nwhile plaintiffs must proceed to trial to succeed on their\nclaims, once there, they cannot use experts to assist the jury\nin “dissect[ing] the protectable from the unprotectable” and\n“guide the drawing of inferences from different sorts of\nsimilarities.” Lemley, supra, at 736. The subjective nature of\nthe intrinsic test and the parties’ inability to present expert\ntestimony make the outcomes of cases unpredictable and\nunprincipled—different juries or judges might reach\nopposite conclusions on the same record. See id.; Pamela\nSamuelson, A Fresh Look at Tests for Nonliteral Copyright\nInfringement, 107 Nw. U. L. Rev. 1821, 1832 (2013). Little\nwonder, then, that copyright scholars have criticized our\nintrinsic test for producing inconsistent and unpredictable\nresults. See, e.g., Boyden, supra, at 1096; Samuelson, supra,\nat 1832; Amy B. Cohen, Masking Copyright\nDecisionmaking: The Meaninglessness of Substantial\nSimilarity, 20 U.C. Davis L. Rev. 719, 757 (1987).\n Ultimately, our vague intrinsic test favors defendants. To\nbe sure, the intrinsic test may provide the occasional windfall\nto plaintiffs by freeing the jury to assess substantial\nsimilarity in “total concept and feel,” no matter if the\nsimilarity stems from elements that copyright law protects.\nSee Boyden, supra, at 1098; Samuelson, supra, at 1832;\nLemley, supra, at 739. But without the opportunity to dissect\nthe protectable and unprotectable elements of the work, or to\nhear expert testimony doing so, “juries are more likely to\nfind infringement in dubious circumstances.” Lemley,\nsupra, at 739. Or, as apparently happened here, the intrinsic\ntest can divert the jury’s attention away from objectively\nsubstantial copying of protected expression toward trivial\ndifferences, resulting in an inscrutable no-infringement\nverdict. See Nicole Doc, Do We Even Need a Test?: A\nReevaluation of Assessing Substantial Similarity in a\n\n SEDLIK V. VON DRACHENBERG 33\n\n\nCopyright Infringement Case, 15 J. L. & Pol’y 1375, 1400–\n01 (2009) (arguing that, in many cases, lay observers are\n“simply not capable of detecting very real appropriation”\nwhere an infringing work “consists merely of clever\njuxtaposition and alteration of unessential details in the\nplaintiff’s work” (quoting Nimmer on Copyright\n§ 13.03[E][2])); Y’Barbo, supra, at 293 n.29.\n While the intrinsic test may produce erroneous verdicts\nfor both plaintiffs and defendants, only defendants can\ncorrect such verdicts. When a jury errs by finding intrinsic\nsimilarity based on works’ unprotected elements, defendants\ncan challenge the resulting infringement verdict under the\nextrinsic test, which allows us to filter those unprotected\nelements out of the analysis. We have not hesitated to\nreverse infringement verdicts in such cases. See, e.g., Gray\nv. Hudson, 28 F.4th 87, 96–97, 103 (9th Cir. 2022); Corbello\nv. Valli, 974 F.3d 965, 973–75 (9th Cir. 2020). But when a\njury errs by finding a lack of intrinsic similarity despite\nsubstantial copying of protected elements, plaintiffs have no\nrecourse. Because the intrinsic test is a purely “subjective\nassessment of the ‘concept and feel’ of two works,” we have\nheld that it is “a task no more suitable for a judge than a\njury.” Shaw, 919 F.2d at 1360. As a result, we cannot\n“second-guess the jury’s application of the intrinsic test.”\nThree Boys Music Corp. v. Bolton, 212 F.3d 477, 485 (9th\nCir. 2000). Indeed, we have never reversed a jury’s no-\ninfringement verdict under the test: “the absence of legal\nanalysis . . . frustrate[s] appellate review.” Shaw, 919 F.2d at\n1357; see also Lemley, supra, at 739–40. And after a full\ntrial on the merits, as in this case, we cannot review a denial\nof a plaintiff’s motion for summary judgment even when\nthere was no genuine dispute about intrinsic similarity. See\n\n34 SEDLIK V. VON DRACHENBERG\n\n\nLocricchio v. Legal Services Corp., 833 F.2d 1352, 1359\n(9th Cir. 1987).\n The cumulative effect of all this has been to undermine\ncopyright protections and their purpose of “promot[ing] the\nProgress of Science and useful Arts.” U.S. Const. art. I, § 8,\ncl. 8. Few argue that this is the result that copyright law\ncontemplates. “[T]he almost universal opinion among\ncopyright scholars [is] that ‘total concept and feel’ is a\nhorrible test for infringement.” Boyden, supra, at 1095; see\nalso id. at 1095–96 (collecting criticisms of the test as\n“threaten[ing] to subvert the very essence of copyright,”\n“almost perversely calculated to miss the point,” “internally\ninconsistent,” “vacuous,” providing “unconstrained space\nfor the impressions of the judge or jury,” and “lead[ing] to\nunpredictable, unreviewable similarity determinations”).\n III. Conclusion\n By all accounts, the tattoo at issue here is a tour de force.\nAs amici tattoo artists note, photorealistic images are nearly\nimpossible to replicate on human skin. But Von\nDrachenberg did it: skillfully tracing Sedlik’s photograph of\nMiles Davis, transferring the resulting stencil to her friend’s\narm, and carefully reproducing every significant detail that\nSedlik had crafted in his original photograph. It is an\nunderstatement to say that the tattoo is substantially similar\nto Sedlik’s photograph —it is, as Von Drachenberg’s tattoo\nshop put it, “100% exactly the same.” Our caselaw required\nthe jury to apply a subjective “total concept and feel” test\nwithout meaningful guidance. That led the jury to deny the\nsubstantial similarity between the photograph and the tattoo.\nAnd no matter how many protectable elements of the\nphotograph show up in the tattoo, we cannot meaningfully\n\n SEDLIK V. VON DRACHENBERG 35\n\n\nreview the jury’s finding of no similarity. In my view, a test\nthat produces such a result cannot be right.\n We should defer to juries’ assessments of substantial\nsimilarity. But for juries to make those calls consistently,\nthey need more than an empty standard premised on “total\nconcept and feel.” And despite the best efforts of the district\ncourt, juries sometimes misapply the law. When they do,\ncourts must be able to correct course to ensure that copyright\nserves its purpose of encouraging and protecting creative\nexpression. See Andy Warhol Found. for the Visual Arts, Inc.\nv. Goldsmith, 598 U.S. 508, 526 (2023); U.S. Const. art. I,\n§ 8, cl. 8. Because our intrinsic test leaves us no choice but\nto rubber-stamp the no-infringement verdict, I concur in the\nmajority opinion. But I agree with Judge Wardlaw that it is\ntime to discard the intrinsic test and replace it with a legal\nrule that offers more consistent and even-handed protection\nto copyrighted works.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11234838/", "author_raw": "Circuit Judge, joins, concurring"}]}	KIM MCLANE WARDLAW	SALVADOR MENDOZA JR	ANTHONY D JOHNSTONE	1		{}	3	0	2	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10768253/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,768,266	United States v. Vazquez-Ramirez	2026-01-02	24-3544	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Johnnie B. Rawlinson, Daniel A. Bress, and Patrick J. Bumatay, Circuit Judges.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\nUNITED STATES OF AMERICA, No. 24-3544\n D.C. No.\n Plaintiff - Appellee,\n 2:22-cr-00087-\n RMP-1\n v.\n\nOSCAR VAZQUEZ-RAMIREZ,\n OPINION\n Defendant - Appellant.\n\n Appeal from the United States District Court\n for the Eastern District of Washington\n Rosanna Malouf Peterson, District Judge, Presiding\n\n Argued and Submitted June 2, 2025\n Seattle, Washington\n\n Filed January 2, 2026\n\nBefore: Johnnie B. Rawlinson, Daniel A. Bress, and Patrick\n J. Bumatay, Circuit Judges.\n\n Per Curiam Opinion;\n Concurrence by Judge Bumatay\n\n2 USA V. VAZQUEZ-RAMIREZ\n\n\n SUMMARY \n\n\n Criminal Law\n\n The panel affirmed Oscar Vazquez-Ramirez’s\nconviction for violating 18 U.S.C. § 922(g)(5)(A), which\nprohibits persons “illegally or unlawfully in the United\nStates” from possessing a firearm.\n Vazquez-Ramirez moved to dismiss the indictment,\nraising an as-applied Second Amendment challenge to\n§ 922(g)(5)(A). The district court denied the motion.\n The panel concluded that this court’s previous holding\nthat Second Amendment challenges to § 922(g)(5)(A) are\nsubject to intermediate scrutiny, see United States v. Torres,\n911 F.3d 1253, 1263 (9th Cir. 2019), is clearly irreconcilable\nwith N.Y. State Rifle & Pistol Assoc’n v. Bruen, 597 U.S. 1,\n24 (2022), and is overruled.\n Applying Bruen’s two-step framework for evaluating\nSecond Amendment challenges, the panel (1) assumed\nwithout deciding that noncitizens illegally present in the\nUnited States could be considered part of “the people”\nprotected by the Second Amendment, but (2) concluded that\nthe government met its burden to show that § 922(g)(5)(A)\nis consistent with the nation’s historical tradition of firearm\nregulation. Thus, Vazquez-Ramirez’s as-applied challenge\nfails.\n Concurring in the judgment, Judge Bumatay would hold\nthat “the people” refers only to “members of the [nation’s]\n\n\n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\n USA V. VAZQUEZ-RAMIREZ 3\n\n\npolitical community,” which categorically excludes illegal\naliens, and that § 922(g)(5)(A) prosecutions thus don’t\nimplicate the Constitution’s “plain text” and are not subject\nto a Second Amendment challenge.\n\n\n\n COUNSEL\n\nMichael J. Ellis (argued), Assistant United States Attorney;\nVanessa R. Waldref, United States Attorney; Office of the\nUnited States Attorney, United States Department of Justice,\nSpokane, Washington; for Plaintiff-Appellee.\nCarter L. Powers Beggs (argued), Assistant Federal\nDefender, Federal Public Defenders of Eastern Washington\nand Idaho, Spokane, Washington; John B. McEntire IV,\nConnelly Law Offices PLLC, Tacoma, Washington; for\nDefendant-Appellant.\n\n4 USA V. VAZQUEZ-RAMIREZ\n\n\n OPINION\n\nPER CURIAM:\n\n Oscar Vazquez-Ramirez brings a Second Amendment\nchallenge to his conviction under 18 U.S.C. § 922(g)(5)(A),\nwhich prohibits persons “illegally or unlawfully in the\nUnited States” from possessing a firearm. We join all our\nsister circuits in concluding that the Second Amendment\ndoes not invalidate § 922(g)(5)(A). See United States v.\nPerez, 6 F.4th 448, 450 (2d Cir. 2021); United States v.\nCarpio-Leon, 701 F.3d 974, 975 (4th Cir. 2012); United\nStates v. Portillo-Munoz, 643 F.3d 437, 442 (5th Cir. 2011);\nUnited States v. Escobar-Temal, No. 24-5668, 2025 WL\n3632831, at 12 (6th Cir. Dec. 15, 2025); United States v.\nCarbajal-Flores, 143 F.4th 877, 889 (7th Cir. 2025); United\nStates v. Flores, 663 F.3d 1022 (8th Cir. 2011); United States\nv. Huitron-Guizar, 678 F.3d 1164, 1170 (10th Cir. 2012);\nUnited States v. Jimenez-Shilon, 34 F.4th 1042, 1050 (11th\nCir. 2022). Thus, Vazquez-Ramirez’s as-applied challenge\nto § 922(g)(5)(A) fails.\n I.\n Born in Mexico, Oscar Vazquez-Ramirez came to the\nUnited States unlawfully when he was seven years old.\nVazquez-Ramirez is not a United States citizen and has no\nlegal immigration status in the country. In December 2021,\nVazquez-Ramirez was pulled over in Othello, Washington,\nfor failing to yield at a crosswalk. At the time, Vazquez-\nRamirez had a firearm in his waistband. He was then\narrested for driving under the influence of alcohol and for\nunlawful possession of a firearm.\n\n USA V. VAZQUEZ-RAMIREZ 5\n\n\n In July 2022, Vazquez-Ramirez was charged in a single-\ncount federal indictment with 18 U.S.C. § 922(g)(5)(A)—\n“Unlawful Alien in Possession of a Firearm and\nAmmunition.” Vazquez-Ramirez moved to dismiss his\nindictment, raising an as-applied Second Amendment\nchallenge to § 922(g)(5)(A). The district court denied the\nmotion. Afterward, Vazquez-Ramirez entered a conditional\nguilty plea, preserving his right to appeal the Second\nAmendment ruling. The district court sentenced him to five\nyears’ probation.\n Vazquez-Ramirez now appeals his conviction, which we\nreview de novo. See United States v. Oliver, 41 F.4th 1093,\n1097 (9th Cir. 2022).\n II.\n Section 922(g)(5)(A) prohibits “any person . . . who\nbeing an alien—is illegally or unlawfully in the United\nStates” from possessing any firearm or ammunition. 18\nU.S.C. § 922(g)(5)(A). Although Vazquez-Ramirez doesn’t\ncontest that he is “illegally or unlawfully in the United\nStates,” he argues that, as a long-time resident of the country,\nhe is entitled to the protection of the Second Amendment.\n While we previously held that Second Amendment\nchallenges to § 922(g)(5)(A) are subject to intermediate\nscrutiny, see United States v. Torres, 911 F.3d 1253, 1263\n(9th Cir. 2019), that ruling is “clearly irreconcilable” with\nN.Y. State Rifle & Pistol Assoc’n v. Bruen, 597 U.S. 1, 24\n(2022), and is overruled. See Miller v. Gammie, 335 F.3d\n889, 900 (9th Cir. 2003) (en banc).\n Bruen establishes a two-step framework for evaluating\nSecond Amendment challenges. First, we consider “whether\nthe Second Amendment’s plain text covers an individual’s\n\n6 USA V. VAZQUEZ-RAMIREZ\n\n\nproposed course of conduct.” United States v. Duarte, 137\nF.4th 743, 752 (9th Cir. 2025) (en banc) (simplified).\nSecond, if the conduct is covered by its plain text, “the\nSecond Amendment presumptively protects that conduct[,\nand] [t]he Government then bears the burden of justifying\nthe challenged regulation by showing that it is consistent\nwith our nation’s historical tradition of firearm regulation.”\nId. (simplified).\n Under Bruen’s second step, we “must engage in\nanalogical reasoning to determine whether the modern\nregulation is relevantly similar to historical laws and\ntraditions . . . so as to evince[ ] a comparable tradition of\nregulation.” Id. at 755 (simplified). In conducting this\nanalogical reasoning, we examine: “(1) ‘whether modern\nand historical regulations impose a comparable burden on\nthe right of armed self-defense’ (the ‘how’); and\n(2) ‘whether that burden is comparably justified’ (the\n‘why’).” Id. (quoting Bruen, 597 U.S. at 29). This\nexamination requires only “a well-established and\nrepresentative historical analogue, not a historical twin.” Id.\n(quoting Bruen, 597 U.S. at 30). In the end, “‘the\nappropriate analysis involves considering whether the\nchallenged regulation is consistent with the principles that\nunderpin our regulatory tradition.’” Id. (quoting United\nStates v. Rahimi, 602 U.S. 680, 692 (2024) (emphasis\nadded)).\n As it is not necessary to resolve the issue in this case, like\nseveral of our sister circuits, we will assume without\ndeciding that noncitizens illegally present in the United\nStates could be considered part of “the people” protected by\nthe Second Amendment. See Perez, 6 F.4th at 453; Jimenez-\nShilon, 34 F.4th at 1045–46; Carbajal-Flores, 143 F.4th at\n882. And like our sister circuits, we conclude that the\n\n USA V. VAZQUEZ-RAMIREZ 7\n\n\ngovernment has met its burden to show that § 922(g)(5)(A)\nis consistent with the nation’s historical tradition of firearm\nregulation. See Jimenez-Shilon, 34 F.4th at 1049–50;\nCarbajal-Flores, 143 F.4th at 888.\n A.\n To determine whether our historical tradition supports a\nmodern federal firearms regulation, we consider “primarily\n. . . historical regulations extant when the Second and\nFourteenth Amendments were adopted in 1791 and 1868,\nrespectively,” and “pre-and post-ratification history to the\nextent that it does not contravene founding-era evidence.”\nDuarte, 137 F.4th at 755. Here, common law, pre-\nratification, and post-ratification history all show a tradition\nof the government permissibly restricting the firearms rights\nof non-citizens.\n 1. First, “[i]n the English tradition, one’s alien status\ncarried with it a smaller basket of rights.” Carbajal-Flores,\n143 F.4th at 883. The common law distinguished between\n“aliens and natural-born subjects.” 1 William Blackstone,\nCommentaries on the Laws of England 354 (1765).\nNatural-born subjects were born in the king’s dominion and\nowed “perpetual” allegiance to the king. Id. at 354, 357. In\nexchange for that allegiance, natural-born subjects received\nthe “protection which the king affords the subject.” Id. at\n354. Thus, natural subjects had a “great variety of rights.”\nId. at 359. In contrast, “aliens” were born outside of the\nking’s dominion and owed merely “[l]ocal allegiance” to the\nking, which existed only while the alien resided in the\ndominion. Id. at 358. This “local and temporary” allegiance\nmeant aliens were entitled to a “much more circumscribed”\nlist of rights. Id. at 359.\n\n8 USA V. VAZQUEZ-RAMIREZ\n\n\n The right to keep and bear arms was among those rights\ncircumscribed for non-citizens. For example, an English\nstatute prohibited non-landowners from having or keeping\n“Guns, Bowes” or other hunting equipment. An Act for the\nBetter Preservation of the Game, 22 & 23 Car. 2, c. 25\n(1671). This effectively prevented “aliens” from owning\nfirearms because they could not permanently own land. See\n1 Blackstone, Commentaries at 360; see also Jimenez-\nShilon, 34 F.4th at 1046 (citing sources). According to\nBlackstone, “aliens” could not purchase land for their own\nuse because doing so would expose the nation to “foreign\ninfluence.” Id. at 360–61. Aliens could only gain the right\nto land ownership, and with it the right to arms, through\nnaturalization. Carbajal-Flores, 143 F.4th at 884.\n Similarly, several statutes restricted gun ownership for\nEnglish Catholics, who “were perceived as resident enemy\naliens because they owed an allegiance to a foreign\nsovereign, the Pope.” Id. For example, one law made it a\ncrime for Catholics to possess firearms and punished\nviolators with forfeiture of their firearms and imprisonment.\nAn Act for the Better Securing the Government by\nDisarming Papists and Reputed Papists, 1 W. & M., Sess. 1\n(1689). For the English, the fact “[t]hat ‘[Catholics]\nacknowledge[d] a foreign power, superior to the sovereignty\nof the kingdom,’ meant Catholics were not entitled to bear\narms as ‘good subjects’ were.” Carbajal-Flores, 143 F.4th\nat 884 (quoting C. Kevin Marshall, Why Can’t Martha\nStewart Have a Gun?, 32 Harv. J.L. & Pub. Pol’y 695, 722–\n23 (2009)). Although laws such as this would encounter\nproblems “under other parts” our Constitution, they are still\n“reflective” of history and tradition. Duarte, 137 F.4th at\n760. Thus, “[a]ll told, the English tradition establishes a\nhistorical pattern of disarming persons who lacked\n\n USA V. VAZQUEZ-RAMIREZ 9\n\n\nallegiance to the sovereign,” which included non-naturalized\naliens living in England. Carbajal-Flores, 143 F.4th at 884.\n 2. Second, pre-ratification colonial statutes similarly\nrestricted the gun ownership of non-citizens and other\nindividuals with questionable loyalties. See Carbajal-\nFlores, 143 F.4th at 884–86; Jimenez-Shilon, 34 F.4th at\n1047–48. Several colonies, for example, prohibited\nEnglishmen from giving guns or ammunition to Native\nAmericans. See, e.g., Mass. Gen. Laws, ch. 58, § 2 (1633),\nreprinted in The Charters and General Laws of the Colony\nand Province of Massachusetts Bay 133 (T.B. Wait & Co.\n1814); The Public Records of the Colony of Connecticut,\n1665, 80, 529 (Brown & Parsons 1850); Nathaniel B.\nShurtleff & David Pulsifer, eds., 5 Records of the Colony of\nNew Plymouth, in New England, 173 (AMS Press 1968)\n(“[Giving arms] to the Indians is pnisious [sic] and\ndestructive to the English”); see generally Joseph Blocher &\nCaitlin Carberry, Historical Gun Laws Targeting\n“Dangerous” Groups and Outsiders, Duke Law School\nPublic Law & Legal Theory Series No. 2020-80 (2020).\n After the Revolution, States passed statutes depriving\nfirearms from those who refused to swear allegiance and\nfidelity to their respective State. See Duarte, 137 F.4th at\n765 & n.5 (Collins, J. concurring) (compiling State “laws\ndisarming loyalists or those who refused to take loyalty\noaths”). Take a Pennsylvania law that found it “very\nimproper and dangerous that persons disaffected to the\nliberty and independence of this state should possess or have\nin their keeping, or elsewhere, any firearms, or other\nweapons used in war, or any gun powder[.]” Pa. Laws 198,\n198–99 §§ 4–5 (1779) (emphasis added). So the State was\n“empowered to disarm any person who shall not have taken\n\n10 USA V. VAZQUEZ-RAMIREZ\n\n\nany oath or affirmation of allegiance to this or any other\nstate.” Id.\n By tying firearm possession directly to national\nallegiance, our Founding generation made the “disarmament\nof groups associated with foreign elements” “an early\nfeature” of our historical tradition of gun regulation.\nPratheepan Gulasekaram, “The People” of the Second\nAmendment: Citizenship and the Right to Bear Arms, 85\nN.Y.U. L. Rev. 1521, 1548–49 (2010).\n 3. Third, our post-ratification history confirms the\ntradition of disarming noncitizens. Justice Story interpreted\nthe Second Amendment right as “[t]he right of the citizens\nto keep and bear arms . . . against the usurpation and arbitrary\npower of rulers.” 3 Joseph Story, Commentaries on the\nConstitution of the United States § 1890 (1833) (emphasis\nadded). And many States prohibited non-citizens from\npossessing firearms because of their alienage or lack of\nallegiance. See Jimenez-Shilon, 34 F.4th at 1047; Carbajal-\nFlores, 143 F.4th at 886; see also Kanter v. Barr, 919 F.3d\n437, 457–58 (7th Cir. 2019) (Barrett, J. dissenting).\n *\n We thus agree with the Seventh Circuit that, “[f]rom the\ncommon law onward, aliens have historically been disarmed\nunless and until they swore an oath of allegiance to the\nsovereign.” Carbajal-Flores, 143 F.4th at 888.\n B.\n Section 922(g)(5)(A) fits comfortably with the “how”\nand the “why” of our Nation’s regulatory tradition of\ndisarming noncitizens and those who have not sworn\nallegiance to our country. See Rahimi, 602 U.S. at 692.\nFirst, the federal statute has a similar “how” to historical\n\n USA V. VAZQUEZ-RAMIREZ 11\n\n\nstatutes. It disarms persons unwilling or unable to swear the\noath of allegiance and loyalty to the United States. See\nJimenez-Shilon, 34 F.4th at 1048. “The way § 922(g)(5)(A)\noperates maps onto [our] tradition[,]” disarming those who\nhave illegally entered the country, and foregone\nnaturalization. Carbajal-Flores, 143 F.4th at 888. Second,\n§ 922(g)(5)(A) has a similar “why” to the historical tradition.\nWe have historically disarmed those who, by their lack of\nallegiance, our country has deemed untrustworthy or\npotentially dangerous. NRA v. Bureau of Alcohol, Tobacco,\nFirearms, and Explosives, 700 F.3d 185, 200 (5th Cir. 2012);\nKanter, 919 F.3d at 457 (Barrett, J., dissenting). Noncitizens\nillegally present in the United States are “person[s] whose\nunregistered presence in this country, without more,\nconstitutes a crime.” INS v. Lopez-Mendoza, 468 U.S. 1032,\n1047 (1984). Aliens cannot “surreptitiously enter a foreign\nnation in violation of the immigration prerogatives of the\nsovereign and expect to receive all the rights and protections\nof the citizenry.” Jimenez-Shilon, 34 F.4th at 1049.\n Accordingly, Vazquez-Ramirez’s as-applied challenge\nto § 922(g)(5)(A) fails.\n III.\n For the foregoing reasons, we affirm the denial of the\nmotion to dismiss the indictment.\n AFFIRMED.\n\n12 USA V. VAZQUEZ-RAMIREZ", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11234851/", "author_raw": "PER CURIAM"}, {"author": "BUMATAY, Circuit Judge, concurring", "type": "concurrence", "text": "BUMATAY, Circuit Judge, concurring in the judgment:\n\n The Second Amendment declares that “[a] well\nregulated Militia, being necessary to the security of a free\nState, the right of the people to keep and bear Arms, shall\nnot be infringed.” U.S. Const. amend. II. By its plain text,\nthe Second Amendment protects only “the people.” But who\nare “the people” entitled to the Second Amendment right?\nDoes “the people” include aliens “illegally or unlawfully in\nthe United States”—the basis for prosecution under 18\nU.S.C. § 922(g)(5)(A)?\n The per curiam opinion assumes illegal aliens are part of\nthe “people” but concludes that our historical tradition\njustifies disarming them. I analyze the question differently.\nBased on the Second Amendment’s text, I would hold that\n“the people” refers only to “members of the [Nation’s]\npolitical community,” District of Columbia v. Heller, 554\nU.S. 570, 580 (2008), which categorically excludes illegal\naliens. Thus, § 922(g)(5)(A) prosecutions don’t implicate\nthe Constitution’s “plain text” and are not subject to a\nSecond Amendment challenge. See N.Y. State Rifle & Pistol\nAssoc’n v. Bruen, 597 U.S. 1, 24 (2022).\n I.\n Under Bruen, we first ask whether “the Second\nAmendment’s plain text covers [the defendant’s] conduct.”\nId. If not, the Second Amendment inquiry ends, and we need\nnot go any further. I would end this case at the first step.\n A.\n The Second Amendment expressly protects only “the\npeople” from the infringement of the right to keep and bear\narms. Based on the Constitution’s text, structure, and\n\n USA V. VAZQUEZ-RAMIREZ 13\n\n\nhistory, the phrase “the people” is a “term of art” referring\nonly to the “members of the [Nation’s] political\ncommunity.” Heller, 554 U.S. at 580 (quoting United States\nv. Verdugo-Urquidez, 494 U.S. 259, 265 (1990)). Whoever\nis included in the American “political community,” it cannot\ninclude illegal aliens, who owe their allegiance to another\nsovereign and whose very presence in the country violates\nfederal law. See 8 U.S.C. § 1325.\n First Principles\n To understand the Constitution’s use of “the people,”\none must first understand the American constitutional\nproject’s philosophical foundations. Our Constitution was\nnot ratified on a blank slate. Instead, it resulted from a\nrevolutionary movement firmly rooted in the principles of\npopular sovereignty and self-government. Placing the\nConstitution in the context of these background principles\nshows that “the people” consists only of the sovereign\npolitical community.\n The revolutionary generation was well-versed in the\npolitical philosophy of the Enlightenment, which imbued\nspecial meaning in the term “the people.” “The founding-\nera,” for instance, “was heavily influenced by John Locke”\nand cited his works in “‘pamphlet after pamphlet’[.]”\nObergefell v. Hodges, 576 U.S. 644, 726 (2015) (Thomas,\nJ., dissenting) (quoting Bernard Bailyn, The Ideological\nOrigin of the American Revolution 27 (1967)). Locke\nbelieved that government must operate “for no other end\nultimately but the good of the people” and derives its\nlegitimacy from “the consent of the people[.]” John Locke,\nThe Second Treatise of Government § 142 (1689) (reprinted\nin John Locke Political Writings (David Wootton ed.) 335\n(1993)). Because government derives its legitimacy from\n\n14 USA V. VAZQUEZ-RAMIREZ\n\n\nconsent, “the people [retain] a supreme power to remove or\nalter” it. Id. § 149, pg. 337. In this way, then, “the people”\nare “always the supreme power.” Id. § 149, pg. 338. For\nLocke, “the body of the people” is the fundamental authority\nin political society. Id. § 242, pg. 386.\n Montesquieu, who also viewed the “people” as a term of\nart central to legitimate government, was similarly\ninfluential. See Gordon S. Wood, Friends Divided: John\nAdams and Thomas Jefferson 111 (2017) (explaining that\nMontesquieu’s work, The Spirit of Laws, was “the political\nwork most widely read by the revolutionaries.”).\nMontesquieu argued that, in a republican form of\ngovernment, “the supreme power resides” in “[t]he people”\nas sovereign. Montesquieu, The Spirit of Laws 26 (Thomas\nNugent trans., Batoche Books 2001) (1748). Because “the\npeople” hold the supreme power as sovereign, it is “a\nfundamental maxim . . . that the people should choose” their\nrepresentatives in a republican government. Id.\nMontesquieu, like Locke, used “the people” to describe the\nultimate source of authority in republican civil government.\n So two of the most prominent political theorists of the\nage–whose works inspired the revolutionary generation–\nused “the people” as a term of art in political theory. When\nthey spoke of “the people,” they were referring to the\nmembers of a sovereign polity with the power to choose their\ngovernment. In short, they were referring to the “political\ncommunity.”\n This concept of “the people” also appears in perhaps the\nmost famous document in our Nation’s history: The\nDeclaration of Independence. There, the Founding\ngeneration declared that when a government fails to secure\nunalienable rights, “it is the Right of the People to alter or to\n\n USA V. VAZQUEZ-RAMIREZ 15\n\n\nabolish [the government], and to institute new Government,\nlaying its foundation on such principles and organizing its\npowers in such form, as to them shall seem most likely to\neffect their Safety and Happiness.” Declaration of\nIndependence (1776) (emphasis added). So our Nation’s\ninitial founding document uses “the People” to represent the\npolity entitled to determine self-governance.\n The Declaration’s language was no accident. Rather, it\nwas the revolutionaries’ political philosophy in action.\nWriting his wife while stationed in Philadelphia during the\nContinental Congress, John Adams explained that “a\nGovernment under the People” was the natural preference in\nthe American Colonies. Letter from John Adams to Abigail\nAdams, May 17, 1776 (partially reprinted in Wood, Friends\nDivided, at 107). Another delegate to the Congress, Oliver\nWolcott, wrote a friend that “[a] Revolution in Government”\nwas in the works in the Colonies, one “founded in Compact”\namong “the People at large.” Letter from Oliver Wolcott to\nSamuel Lyman, May 16, 1776 (reprinted in 4 Letters of\nDelegates to Congress, 1774–1789 16–17 (Paul H. Smith, et\nal., eds.) (1979)). And reflecting on the revolutionary era in\nhis retirement, Thomas Jefferson wrote that the “mother\nprinciple” of republicanism requires the government to\n“embody the will of their people, and execute it.” Letter\nfrom Thomas Jefferson to Samuel Kercheval, July 12, 1816\n(partially reprinted in Wood, Friends Divided, at 119). Even\nJohn Dickinson, who opposed the Declaration, recognized\nthat the “full & free Consent of the People” was a valid basis\n“to change a Government.” John Dickinson’s Notes for a\nSpeech in Congress, June 1776 (reprinted in 4 Letters of\nDelegates to Congress, at 166). The upshot of these\nbackground principles is that the American Revolution’s\nleading figures believed that “the people” were the supreme\n\n16 USA V. VAZQUEZ-RAMIREZ\n\n\nauthority in a political system. And when the Founding\ngeneration used that term, they meant the sovereign\ncommunity that consented to a legitimate government. Put\nanother way, when they used “the people,” they meant the\npolitical community.\n Text and Structure\n Connecting these principles, the Constitution’s text and\nstructure establish that “the people” in the Second\nAmendment include only members of the country’s political\ncommunity.\n Start with the Preamble. “The Preamble declares that the\nConstitution is ordained and established by ‘the People of\nthe United States.’” Verdugo-Urquidez, 494 U.S. at 265. So\nfrom the beginning of the Constitution, “We the People”\nreflects those who “ordained and established” the\nconstitutional compact, which necessarily excludes those\noutside the nation’s political community. After all, “the\nConstitution of the United States is . . . a compact made by\nthe people of the United States to govern themselves[.]”\nChisholm v. Georgia, 2 U.S. (2 Dall.) 419, 471 (1793); see\nalso McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 404–\n05 (1819) (“The government of the Union . . . is,\nemphatically and truly, a government of the people. In form,\nand in substance, it emanates from them. Its powers are\ngranted by them, and are to be exercised directly on them,\nand for their benefit.”). Thus, we must read the Second\nAmendment with the Preamble’s understanding of “the\nPeople” in mind. See Akhil Reed Amar, The Bill of Rights:\nCreation and Reconstruction 48–49 (1998) (“[T]he ‘people’\nat the core of the Second Amendment were the same ‘We the\nPeople’ who in conventions had ‘ordain[ed] and\nestablish[ed]’ the Constitution[.]”).\n\n USA V. VAZQUEZ-RAMIREZ 17\n\n\n The only other time the phrase “the People” appears in\nthe original Constitution, it is associated with those who may\nparticipate in our representative democracy. See U.S. Const.\nart. I, § 2, cl. 1 (“The House of Representatives shall be\ncomposed of Members chosen every second Year by the\nPeople of the several States[.]”). There, “the People” refers\nto those who select the body politic’s representatives. The\n“Members” of the “House of Representatives” represent “the\nPeople of the several States,” id., who in turn make up “the\nPeople of the United States,” id. Preamble. So “the People”\ndescribes not just any collective group of individual persons,\nbut “the highest authority known to our system” of\ngovernment: the political community. James Monroe,\nViews of the President of the United States on the Subject of\nInternal Improvements (May 4, 1822) (reprinted in 2 James\nD. Richardson, A Compilation of the Messages and Papers\nof the Presidents, 1789–1897 152–55 (1902)).\n One need not look far beyond Article 1, Section 2, to find\nanother provision supporting this reading of “the people.”\nArticle I, Section 8 provides that “Congress shall have Power\n. . . To establish an uniform Rule of Naturalization[.]” U.S.\nConst. art. I, § 8, cl. 4. Under the Articles of Confederation,\neach State was free to develop its own rules of naturalization.\nSee Articles of Confederation of 1781, art. IV, para. 1. This\n“dissimilarity in the rules of naturalization,” James Madison\nremarked, was a “fault in our system” that left the Articles\nvulnerable to “serious embarrassment on [the] subject.” The\nFederalist No. 42, at 265–66 (J. Madison) (Clinton Rossiter\ned., 1961). Why? Because different rules for “naturalizing\naliens” in each State created different “qualifications” for\n“the rights of citizenship.” Id. at 266. By granting Congress\nthe exclusive power to fashion rules of naturalization, the\nConstitution removes these dissimilarities. See Chirac v.\n\n18 USA V. VAZQUEZ-RAMIREZ\n\n\nChirac’s Lessee, 15 U.S. (2 Wheat.) 259, 269 (1817)\n(Marshall, C.J.) (“That the power of naturalization is\nexclusively in congress does not seem to be, and certainly\nought not to be, controverted[.])”\n The power to naturalize aliens, then, is the power to\nwelcome outsiders into the political community and “confer\nthe rights of citizenship” on them. Federalist No. 42. See\nalso 2 James Kent, Commentaries on American Law 65–66\n(1827) (explaining that a “duly naturalized” alien “becomes\nentitled to all the privileges and immunities” of citizens). In\nhis famous treatise, Justice Joseph Story described the power\nof naturalization as the power to “admit[]” aliens “to enjoy\nall the rights of citizens[.]” 3 Joseph Story, Commentaries\non the Constitution § 1098 (1833). Outsiders must be\nwelcomed into something. The question is what that\nsomething is. The most natural answer is that they are\nadmitted into “the people” of the United States. After all,\n“the People” “ordain[ed] and establish[ed]” the Constitution.\nU.S. Const. Preamble. And “the people” select their\nrepresentatives. U.S. Const. art. I, § 2, cl. 1. But the\nratifying generation also recognized the advantages of\nwelcoming foreigners into the Union. See 5 James Madison,\nDebates on the Adoption of the Federal Constitution 411–14\n(Jonathan Elliot ed.) (1836). So they included a mechanism\nfor the national government to admit foreigners into their\nranks.\n And the power to admit suggests a corresponding power\nto exclude. Cf. Ping v. United States, 130 U.S. 581, 609\n(1889) (explaining that “[t]he power of exclusion of\nforeigners” is “part of those sovereign powers delegated by\nthe [C]onstitution” to “the government of the United\nStates”). By creating a mechanism for the Union to admit—\nand exclude—outsiders, the Constitution recognizes that\n\n USA V. VAZQUEZ-RAMIREZ 19\n\n\nsome individuals are not part of “the people.” Through their\nrepresentatives, the Nation’s sovereign political community\ncan choose to admit or exclude others from “the people.”\n Next, consider the close connection between “the\npeople” in the First and Second Amendments. The First\nAmendment provides that “Congress shall make no law . . .\nabridging . . . the right of the people peaceably to assemble,\nand to petition the Government for a redress of grievances.”\nSee U.S. Const. amend. I. Like the Second Amendment’s\n“safeguard against tyranny[,]” Heller, 554 U.S. at 600, the\nguarantee of assembly and petition protects the political\ncommunity’s “popular right to alter or abolish the national\ngovernment,” Amar, The Bill of Rights at 47; see also United\nStates ex rel. Turner v. Williams, 194 U.S. 279, 292 (1904)\n(questioning whether an illegal alien gains the First\nAmendment’s protections because “[h]e does not become\none of the people to whom these things are secured by our\nConstitution by an attempt to enter forbidden by law”).\nThus, the use of “the people” in the First Amendment further\ncements that the concept of “the people” in the Second\nAmendment refers to our nation’s political community. 1\n\n1\n Of course, the “people” is also used in the Fourth, Ninth, and Tenth\nAmendments. The Tenth Amendment supports reading the term as\nreferring exclusively to the political community because it uses “the\npeople” in conjunction with the “powers” reserved to them and the\nStates. And while the Ninth Amendment’s text does not compel a strong\nconclusion either way, the Fourth Amendment might be a closer call.\nThat amendment protects the “right of the people” against “unreasonable\nsearches and seizures.” See U.S. Const. amend. IV. The defendant here,\nOscar Vazquez-Ramirez, argues that interpreting the Second\nAmendment’s “the people” to exclude illegal aliens would mean that\nthey are also outside the Fourth Amendment’s protection. On one hand,\nit’s sensible to give this term a consistent meaning throughout the Bill of\nRights. See Antonin Scalia and Bryan A. Garner, Reading Law: The\n\n20 USA V. VAZQUEZ-RAMIREZ\n\n\n We also can’t forget the Second Amendment’s prefatory\nclause. It announces a purpose of the right—maintenance of\n“[a] well regulated Militia, being necessary to the security of\na free State[.]” U.S. Const. amend. II. While the “prefatory\nclause does not limit or expand the scope of the operative\nclause,” there is an obvious “link” between the two. Heller,\n554 U.S. at 577–78. As Heller recognized, the right to keep\nand bear arms secured a “free State” because it helped repel\ninvasion, suppress insurrections, and resist tyranny. See id.\nat 597–98. And the militias were an enterprise for able-\nbodied citizens. James Madison called the militia “citizens\nwith arms in their hands.” Id. at 595 (quoting Federalist No.\n46). Indeed, shortly after ratification, in 1792, Congress\npassed the Militia Act, which defined the militia as “each\nand every free able-bodied white male citizen of the\nrespective states, resident therein,” between the ages of 18\nand 45. Id. at 596 (quoting Act of May 8, 1792, 1 Stat. 271).\n\n\nInterpretation of Legal Texts 170 (2012) (“[A] word or phrase is\npresumed to bear the same meaning throughout a text[.]”). Indeed, the\nSupreme Court has not directly held that aliens unlawfully in the United\nStates are members of the Fourth Amendment’s “the people,” only\n“assum[ing without deciding] that illegal aliens in the United States have\nFourth Amendment rights.” See Verdugo-Urquidez, 494 U.S. at 263\n(citing INS v. Lopez-Mendoza, 468 U.S. 1032 (1984)). On the other\nhand, the Fifth Circuit has ruled that references to “the people” do not\nnecessarily “cover exactly the same groups of people” because “[t]he\npurposes of the Second and Fourth Amendment[s] are different.” United\nStates v. Portillo-Munoz, 643 F.3d 437, 440–41 (5th Cir. 2011). Given\nthat “[t]he Second Amendment grants an affirmative right . . . while the\nFourth Amendment is at its core a protective right,” the Fifth Circuit\nconcluded “it [was] reasonable that an affirmative right would be\nextended to fewer groups than would a protective right.” Id. at 441. In\nthe end, I see no need to resolve this question because the evidence\noverwhelmingly points to the limited meaning of “the people” in the\nSecond Amendment.\n\n USA V. VAZQUEZ-RAMIREZ 21\n\n\nThus, the prefatory clause’s link between a “Militia” and a\n“free State” reflects the Amendment’s “concern with\ndemocratic self-government,” Amar, The Bill of Rights at 47,\nwhich only implicates the political community—not all\npersons within the country.\n All in all, text and structure establish that “the people” of\nthe Second Amendment was understood to narrowly\nencompass only our country’s political community. Unlike\nother constitutional provisions that broadly reference all\n“person[s],” see, e.g., U.S. Const. amend. V, the Second\nAmendment guarantee only applies to a smaller subset. As\nused in the Constitution, “the people” is not the plural form\nof “person.” It is instead a term of art used to describe the\nsovereign political community. See Heller, 554 U.S. at 580.\n Pre-Ratification History\n Return to pre-ratification history. Examples abound\nhighlighting that certain groups were considered outside the\npolitical community and thus were not part of “the people.” 2\n Before the Second Amendment, the preexisting right to\nkeep arms was recognized as “one of the fundamental rights\nof Englishmen,” Heller, 554 U.S. at 593–94 (citing 1\n\n\n2\n The per curiam opinion uses many of these same examples as evidence\nof a historical tradition of firearm regulation disarming aliens under\nBruen’s second step, which requires analogical reasoning between\nFounding-era and present-day firearms regulations. While that is\nreasonable, I take this historical evidence to mean that certain groups\nwere undoubtedly not considered part of the political community in the\npre-ratification era and that, when the Founding generation ratified “the\npeople” in the Second Amendment, they would have understood the term\nnot to include these groups. In this way, then, the examples more support\nBruen’s first-step textual analysis that the Second Amendment’s “the\npeople” does not cover illegal aliens.\n\n22 USA V. VAZQUEZ-RAMIREZ\n\n\nWilliam Blackstone, Commentaries on the Laws of England\n136, 139–40 (1765)). But that preexisting right to keep\narms did not extend to noncitizens, the disloyal, or those\nconsidered “potential subversives” outside the political\ncommunity. Joyce Lee Malcolm, To Keep and Bear Arms:\nThe Origins of the Anglo-American Right 140 (1994). 3\n Consider the treatment of Indians. At the Founding,\nIndians were considered “peoples outside the polity of the\nUnited States” and so they were not entitled to the Second\nAmendment’s protection “at the time.” Angela R. Riley,\nIndians and Guns, 100 Geo. L.J. 1675, 1697 (2012). Many\ncolonies (and later States) banned the sale or trade of\nfirearms to Indians. See, e.g., Acts Respecting the Indians,\n\n\n3\n While Blackstone observed that “aliens” enjoyed fewer rights than\nnatural-born English subjects, he included “aliens” in the “denomination\nof the people,” dividing “the people” into aliens and subjects. See 1\nWilliam Blackstone, Commentaries on the Laws of England 354, 355–\n56 (1765). The Eleventh Circuit has taken Blackstone’s statement to\nsuggest that “aliens” may be included within “the people” as that term is\nused in the Constitution. See United States v. Jimenez-Shilon, 34 F.4th\n1042, 1045 (11th Cir. 2022). But this broader meaning of “the people”\ndoesn’t reflect the use of the phrase in a founding document like the\nConstitution or in reference to the right to keep and bear arms. The\nEleventh Circuit also relied on James Madison’s statement that “‘some\naliens’ are entitled to the ‘protection and advantage’ of the Constitution.”\nId. (quoting 4 Jonathan Elliot, The Debates in the Several State\nConventions on the Adoption of the Federal Constitution 556 (2d ed.\n1836)). But Madison doesn’t appear to be discussing all constitutional\nrights there. Instead, he specifically referenced the jury right and “other\nincidents to a fair trial.” Id. That’s consistent with the original\nConstitution’s guarantee of a jury in trials of “all Crimes,” U.S. Const.\nArt. III, § 2 cl.3, the Fifth Amendment’s guarantee of due process and\ngrand jury indictments for any “person” rather than “the people,” U.S.\nConst. amend. V, and the Sixth Amendment’s jury-trial guarantee in\n“all” criminal prosecutions. U.S. Const. amend. VI.\n\n USA V. VAZQUEZ-RAMIREZ 23\n\n\nch. 58, § 2, reprinted in The Charters and General Laws of\nthe Colony and Province of Massachusetts Bay 133 (1814)\n(enacted 1633); No. 17 Trade for Powder &c Felony,\nreprinted in Acts of the General Assembly, Jan. 6, 1639–40,\n4 Wm. & Mary Coll. Q. Hist. Mag. at 150 (July 1924)\n(enacted by the Virginia colony in 1639); An Act for\nPreventing Lending Guns, Ammunition, &c. to the Indians,\n1723 Conn. Pub. Acts 292; An Act to Regulate the Indian\nTrade; and for Other Purposes Therein Mentioned, §§ 2–3,\nreprinted in Robert & George Watkins, A Digest of Laws of\nthe State of Georgia 288, 288–89 (R. Aitken ed., 1800)\n(enacted 1784). And given the close connection between\nmilitias and the protection of the nation’s political rights, it\nis no wonder that several States exempted Indians from\ncompulsory militia service. See, e.g., An Act for Regulating\nthe Militia of the State of New-York, ch. 33, § 1, reprinted\nin Laws of the State of New-York, Commencing with the First\nSession of the Senate and Assembly, After the Declaration of\nIndependency, and the Organization of the New Government\nof the State, Anno 1777, at 31 (John Holt ed., 1782) (enacted\n1778); An Act for Forming and Regulating the Militia\nWithin This State, and for Repealing All the Laws\nHeretofore Made for that Purpose, reprinted in The Laws of\nthe State of New-Hampshire, Together with the Declaration\nof Independence: The Definitive Treaty of Peace Between\nthe United States of America and His Britannic Majesty; the\nConstitution of New-Hampshire, and the Constitution of the\nUnited States, with Its Proposed Amendments 357 (John\nMelcher ed., 1792) (enacted 1786).\n Likewise, as then-outsiders to the political community,\nslaves were denied the right to possess firearms in colonial\nAmerica. In 1741, North Carolina passed a law banning\nslaves from bearing any arm—firearms or otherwise. An\n\n24 USA V. VAZQUEZ-RAMIREZ\n\n\nAct, Concerning Servants and Slaves, ch. 24, §§ 40–42\nreprinted in A Collection of All the Public Acts of Assembly,\nof the Province of North-Carolina, Now in Force and Use:\nTogether with the Titles of All Such Laws as Are Obsolete,\nExpir’d, or Repeal’d; and Also, an Exact Table of the Titles\nof the Acts in Force 170 (James Davis ed., 1752) (enacted\n1741). Several States followed in the years leading to the\nratification of the Constitution and beyond. See, e.g., An Act\nrelating to Servants and Slaves, reprinted in Acts of\nAssembly, Passed in the Province of Maryland, from 1692,\nto 1715, at 147 (John Baskett ed., 1723) (enacted 1715);\nSlaves, tit. 157, §§ 25–27, reprinted in 2 Joseph Brevard,\nAlphabetical Digest of the Public Statute Law of South\nCarolina 234–35 (1814) (enacted 1740); An Act to amend\nand continue an Act for the establishing and regulating\nPatrols, and for preventing any Person from purchasing\nProvisions or any other Commodities from, or selling such\nto any Slave, unless such Slave shall produce a Ticket from\nhis or her Owner, Manager, or Employer, §§ 1–2, 1768 Ga.\nLaws 4, 4–5; An Act to reduce into one the several acts\nrespecting Slaves, Free Negroes, Mulattoes and Indians,\nch. 54, § 5, 1798 Ky. Acts 105, 106; A Law for the\nregulation of Slaves, 1799 Miss. Laws 112, 113; An Act\nPrescribing the Rules and Conduct to Be Observed with\nRespect to Negroes and Other Slaves of This Territory,\n§§ 19–21, reprinted in L. Moreau Lislet, 1 A General Digest\nof the Acts of the Legislature of Louisiana 103–04 (1828)\n(enacted 1806); An Act for preventing Suppressing and\npunishing the Conspiracy and Insurrection of Negroes and\nother Slaves, ch. 250, reprinted in 1 The Colonial Laws of\nNew York from the Year 1664 to the Revolution 766–67\n(1894) (enacted 1712).\n\n USA V. VAZQUEZ-RAMIREZ 25\n\n\n Reinforcing that the right to keep arms only protected\nmembers of the political community, several States\ndisarmed free white men during the Revolutionary War “if\nthey refused a test of allegiance that defined membership in\nthe body politic.” Robert H. Churchill, Gun Regulation, the\nPolice Power, and the Right to Keep Arms in Early America:\nThe Legal Context of the Second Amendment, 25 Law &\nHist. Rev. 139, 158 (2007). In 1776, “the Continental\nCongress recommended that provincial legislatures disarm\nall persons ‘who are notoriously disaffected to the cause of\nAmerica, or who have not associated, and shall refuse to\nassociate, to defend, by arms, these United Colonies.’” Id.\nat 159 n.49 (quoting 4 Journals of the Continental Congress,\n1774–1789 201–05 (Washington, D.C.: Government\nPrinting Office, 1906)). Several States followed that\nrecommendation. See, e.g., An Act for Executing in the\nColony of Massachusetts-Bay, in New England, one Resolve\nof the American Congress, dated March 14, 1776, 1776\nMass. Acts 31, 31–35; An Act, obligating the male white\ninhabitants of this State to give assurances of allegiance to\nthe same, and for other purposes therein mentioned, ch. 21,\n§§ 2 & 4, 1777 Pa. Laws 37, 37–39; An Act to Amend an\nAct Declaring What Crimes and Practices Against the State\nShall Be Treason, ch. 6, § 9, 1777 N.C. Sess. Laws 41, 43–\n44.\n Even before revolutionary times, colonial governments\nrestricted militia service or disarmed certain religious\nminorities out of fears they were not loyal. A 1756 Virginia\nlaw barred Catholics from owning firearms unless they took\noaths of allegiance and supremacy to the Commonwealth.\nAn Act for Disarming Papists, and Reputed Papists,\nRefusing to Take the Oaths to the Government ch. 4 §§ 1–7,\n1756 Va. Acts 35, 35–38. This disarmament was not on the\n\n26 USA V. VAZQUEZ-RAMIREZ\n\n\nbasis of faith, but “on the basis of allegiance.” Churchill,\nGun Regulation, 25 Law & Hist. Rev. at 157. Only if “those\nCatholics [were] willing to swear undivided allegiance to the\nsovereign,” “abjuring the ecclesiastical authority of the\nPope” would they earn the right to possess firearms. Id. And\nthough Maryland did not outright bar Catholics from\npossessing firearms, the colony did bar Catholics from\nenrolling in the colonial militia or possessing firearms in\npublic. 1744 Md. Laws 315, 315–16. This exemption from\nmilitia duty was rooted in the colonial government’s belief\nthat Catholics “were not completely trusted.” Clayton E.\nCramer, Colonial Firearm Regulation, 16 J. on Firearms &\nPub. Pol’y 1, 22 (2004).\n And Catholics were not the only minority, religious or\notherwise, excluded from enjoying the colonial-era\npossession of firearms. Acadians, a group of French settlers\nand ancestors to the Cajuns, “refused to be loyal subjects of\nthe British government” during the French and Indian War.\nId. at 23. When this group moved from Nova Scotia to\nGeorgia, “the suspicion of disloyalty followed them.” Id. In\nresponse, colonial Georgia barred indentured Acadians from\n“hav[ing] or us[ing] any fire Arms or other Offensive\nWeapon otherwise than in his Masters Plantation.” An Act\nproviding for & disposing of the Acadians now in this\nProvince, 1757 Ga. Laws 188, 190, reprinted in 18 The\nColonial Records of the State of Georgia 190 (Allen Daniel\nCandler ed., 1910). This disarmament was based solely on\nloyalty concerns. Cramer, Colonial Firearm Regulation, 16\nJ. on Firearms & Pub. Pol’y, at 23. These examples are not\nexhaustive, but show that throughout colonial America,\ngovernments denied gun rights to outsiders who posed\nthreats of rebellion against the colonies.\n\n USA V. VAZQUEZ-RAMIREZ 27\n\n\n This evidence demonstrates that, in the years before the\nConstitution’s ratification, the American colonies viewed\nsome groups as outside the Nation’s sovereign body politic.\nThat the Constitution was ratified against this backdrop\nsuggests that “the people” does not include those outside the\npolitical community.\n Post-Ratification History\n Next, post-ratification history also shows the limited\nmeaning of “the people.” Of course, we must be mindful to\n“guard against giving postenactment history more weight\nthan it can rightly bear.” Bruen, 597 U.S. at 35. But courts\ncan, and do, examine sources from the early post-ratification\nperiod “to determine the public understanding of a legal\ntext[.]” Heller, 554 U.S. at 605. Here, early post-ratification\nsources also confirm that “the people” refers only to the\nmembers of the political community.\n Leading post-ratification commentators support this\nview. Justice Joseph Story interpreted “the people” in the\nSecond Amendment as referring only to citizens. He wrote,\n\n The right of the citizens to keep and bear\n arms has justly been considered, as the\n palladium of the liberties of a republic; since\n it offers a strong moral check against the\n usurpation and arbitrary power of rulers; and\n will generally, even if these are successful in\n the first instance, enable the people to resist\n and triumph over them.\n\n3 Story, Commentaries § 1890. Story thus tied the Second\nAmendment right to protecting popular sovereignty and thus\nthe right was only necessary for the political community.\n\n28 USA V. VAZQUEZ-RAMIREZ\n\n\nWilliam Rawle, another leading post-ratification jurist,\ninterpreted “the people” as the basis for political authority.\n“In a republic[,]” Rawle explained, “sovereignty resides\nessentially, and entirely in the people.” William Rawle, A\nView of the Constitution of the United States of America 85\n(2d ed. 1829). And “citizens” are the ones who “compose\nthe people, and partake of this sovereignty[.]” Id. Even if\nthe political community can support more than just citizens,\nStory and Rawle’s views confirm that “the people” is a\nsovereign political entity, not a meaningless group\nencompassing all individuals.\n And in the 30 years after the Constitution’s ratification,\nseveral States adopted “Second Amendment analogues” in\ntheir state constitutions. Heller, 554 U.S. at 602. At least\nsix of them—Alabama, Connecticut, Kentucky, Maine,\nMississippi, and Pennsylvania—expressly limited the right\nto “citizen[s].” See United States v. Perez, 6 F.4th 448, 463\nn.6 (2d Cir. 2021) (Menashi, J., concurring) (quoting state\nconstitutions). At least another four States—Vermont, Ohio,\nIndiana, and Missouri—described the right as belonging to\n“the people.” See Heller, 554 U.S. at 585 n.8 (quoting state\nconstitutions). But the Supreme Court viewed the terms “the\npeople” and “citizens” synonymously and interpreted these\nstate analogues to “unequivocally protect[] an individual\ncitizen’s right to self-defense.” Id. at 603 (emphasis added).\nThus, immediately after the Second Amendment’s\nratification, the right to keep and bear arms was understood\nto belong only to members of the political community\nregardless of whether the term “citizen” or “the people” was\nused.\n Although anathema today, free Black Americans were\noften viewed as outside the American polity in many\nsouthern States post-ratification and concomitantly\n\n USA V. VAZQUEZ-RAMIREZ 29\n\n\nrestricted from the right to bear arms. See Paul Finkelman,\nPrelude to the Fourteenth Amendment: Black Legal Rights\nin the Antebellum North, 17 Rutgers L.J. 415, 419–421\n(1986) (describing that while some northern States vested\npolitical rights onto Black Americans, this was in great\ncontrast to the political conditions in the antebellum South);\n1792 Va. Acts ch. 103, §§ 8–9 (generally banning firearms\nfrom free Blacks with few exceptions); Act of Feb. 8, 1798,\nch. 54, § 5, 1798 Ky. Acts 105, 106; 1806 Md. Laws ch. 81,\n§§ 1–2, at 46, 47; see also Clayton E. Cramer, The Racist\nRoots of Gun Control, 4 Kan. J. L. & Pub. Pol’y 17, 18–20\n(1995) (describing similar laws in New Orleans (1803),\nTennessee (1834), and North Carolina (1840)).\n These post-ratification sources thus further establish that\n“the people” did not include those considered outside the\npolitical community.\n Modern Precedent\n Reading the Second Amendment’s “the people” to mean\nonly the members of the political community also follows\nfrom Supreme Court precedent.\n Consider Heller. That case stated that “‘the people’\n. . . unambiguously refers to all members of the political\ncommunity.” Heller, 554 U.S. at 580 (emphasis added). It\nthen repeatedly affirmed that the Second Amendment right\nbelonged to “Americans” or “citizens.” See id. at 581 (“We\nstart . . . with a strong presumption that the Second\nAmendment right is exercised individually and belongs to all\nAmericans.”); id. at 625 (“[T]he Second Amendment does\nnot protect those weapons not typically possessed by law-\nabiding citizens for lawful purposes[.]”); id. at 630 (The\nDistrict’s handgun ban “makes it impossible for citizens to\nuse them for the core lawful purpose of self-defense and is\n\n30 USA V. VAZQUEZ-RAMIREZ\n\n\nhence unconstitutional.”); id. at 635 (“[The Second\nAmendment] surely elevates above all other interests the\nright of law-abiding, responsible citizens to use arms in\ndefense of hearth and home.”). Thus, Heller suggested that\ncitizenship was a touchstone of the Second Amendment\nright.\n True, Heller also quoted Verdugo-Urquidez, which\ndefined “the people” under the Fourth Amendment more\nbroadly to include the “class of persons who are part of a\nnational community or who have otherwise developed\nsufficient connection with this country to be considered part\nof that community.” Id. at 580 (quoting Verdugo-Urquidez,\n494 U.S. at 265). But Heller also explained that “the people”\n“unambiguously refers to all members of the political\ncommunity[.]” Heller, 554 U.S. at 580. As Vazquez-\nRamirez’s own expert opined, this choice was no accident.\nSee Pratheepan Gulasekaram, “The People” of the Second\nAmendment: Citizenship and the Right to Bear Arms, 85\nN.Y.U. L. Rev. 1521, 1536 (2010) (Heller’s shift in\nlanguage was “intended to constrict the constitutional\ndefinition of ‘the people.’ Reformulating membership with\na ‘political’ rather than a ‘national’ lens is significant\nbecause the former implies only those with political rights—\ne.g., voting, public office—while the latter is malleable,\npotentially including all who believe in the ideals of, and are\nconnected to, the nation.”); see also id. at 1530–31 (“[I]n\ndeliberately trying to situate the right of armed self-defense\nin the pantheon of constitutional rights,” Heller “identifies\nthe right-holders at different points as ‘all members of the\npolitical community,’ ‘all Americans,’ ‘citizens,’\n‘Americans,’ and ‘law-abiding citizens.’”). We thus can’t\nignore Heller’s gloss on the meaning of “the people,”\n\n USA V. VAZQUEZ-RAMIREZ 31\n\n\nespecially given its consistency with the phrase’s historical\nunderstanding.\n After Heller, the Supreme Court repeatedly assumed that\ncitizenship was a prerequisite for asserting the Second\nAmendment right. McDonald was first, observing that the\nSecond Amendment means that “citizens must be permitted\n‘to use [handguns] for the core lawful purpose of self-\ndefense.’” McDonald v. City of Chicago, Ill., 561 U.S. 742,\n767–68 (2010) (plurality opinion) (simplified) (emphasis\nadded) (quoting Heller, 554 U.S. at 630). Bruen similarly\ndefined the Amendment’s scope to protect “ordinary, law-\nabiding citizens.” See 597 U.S. at 9 (emphasis added), see\nalso id. at 11, 15, 26, 29–31, 38, 60, 70–71. So too in\nRahimi. United States v. Rahimi, 602 U.S. 680, 691, 701\n(describing the Second Amendment as applying to “ordinary\ncitizens” (emphasis added)). Even our court has recognized\nthe scholarly consensus that “the right to bear arms was\ninextricably tied to the concept of a virtuous citizenry.”\nUnited States v. Vongxay, 594 F.3d 1111, 1118 (9th Cir.\n2010) (simplified), abrogated on other grounds by, Bruen,\n597 U.S. at 19.\n * *\n Text, history, and precedent all align. At the ratification\nof the Second Amendment, the right belonged only to “the\npeople,” which was understood as the members of the\nnation’s political community. True, at the Founding, that\npolitical community was narrowly drawn. We have\nrightfully broadened the political community’s scope. But it\nstill has its limits.\n\n32 USA V. VAZQUEZ-RAMIREZ\n\n\n B.\n Having determined that the Second Amendment right\nonly protects members of our nation’s political community,\nI next consider whether illegal aliens belong in that group.\nThey do not.\n Illegal aliens in the United States today are not among\n“the people” protected by the Second Amendment’s text.\nIllegal aliens lack any allegiance to the United States and are\nunlawfully present in the country. Definitionally, illegal\naliens are not part of the sovereign body politic. Under\nfederal law, an “alien” is “any person not a citizen or national\nof the United States.” 8 U.S.C. § 1101(a)(3). And a\n“national” is “a person owing permanent allegiance to a\nstate.” § 1101(a)(21). So an “alien” is a person who is\nneither “a citizen of the United States” nor “a person who,\nthough not a citizen of the United States, owes permanent\nallegiance to the United States.” § 1101(a)(22). Federal law\nthus recognizes the commonsense principle that an illegal\nalien—a “national” of another state—owes his or her\npermanent allegiance to another sovereign.\n Indeed, the naturalization process requires an alien to\ntake an oath “renounc[ing] and abjur[ing] absolutely and\nentirely all allegiance and fidelity to any foreign prince,\npotentate, state, or sovereignty[.]” 8 U.S.C. § 1448(a)(2). In\nexercising its authority to welcome outsiders into the\npolitical community, Congress considers allegiance a key to\nadmission. See Federalist No. 42; 2 Kent, Commentaries 65.\nAllegiance is thus a necessary condition for membership in\n“the people.” Because illegal aliens owe their allegiance to\na foreign sovereign, they are not part of the political\ncommunity that the Constitution contemplates.\n\n USA V. VAZQUEZ-RAMIREZ 33\n\n\n Lacking any allegiance to our country, illegal aliens\ncannot exercise many of the political rights of citizens of our\ncountry. They cannot vote in federal elections. 18 U.S.C.\n§ 611(a). They cannot hold federal office. U.S. Const. art.\nI, § 2, cl. 2; id. art. I § 3, cl. 3; id. art. II, § 1, cl. 5. And they\ncannot serve on federal juries. 28 U.S.C. § 1865(b)(1).\n Unlawful presence—and its consequences—also show\nthat illegal aliens are not part of “the people.” Their very\npresence in the United States violates federal law. 8 U.S.C.\n§ 1325. As the Fourth Circuit observed, “the crime of illegal\nentry inherently carries this additional aspect that leaves an\nillegal alien’s status substantially unprotected by the\nConstitution in many respects.” United States v. Carpio-\nLeon, 701 F.3d 974, 981 (4th Cir. 2012). And, subject to\nlimited exceptions, the federal government may remove\nthem from the country at any time. See 8 U.S.C. § 1227(a).\nAs a result, illegal aliens “are likely to maintain no\npermanent address in this country.” Portillo-Munoz, 643\nF.3d at 441 (simplified). Indeed, for the most part, illegal\naliens can’t even be lawfully employed. See 8 U.S.C.\n§ 1324a; see also Sugarman v. Dougall, 413 U.S. 634, 649\n(1973) (observing that “[a] restriction on the employment of\nnoncitizens” could be relevant for “defining ‘political\ncommunity.’”).\n All this reinforces what common sense suggests: illegal\naliens cannot fully participate in our nation politically,\nsocially, or economically. They simply “cannot assert the\nrights in general obtaining in a land [to which] they do not\nbelong as citizens or otherwise.” Williams, 194 U.S. at 292.\nThey thus cannot be considered members of the political\ncommunity entitled to Second Amendment protection.\n\n34 USA V. VAZQUEZ-RAMIREZ\n\n\n Because illegal aliens are not covered by the Second\nAmendment’s plain text, Vasquez-Ramirez’s as-applied\nchallenge to § 922(g)(5)(A) fails. See Bruen, 597 U.S. at 32.\nAnd so I agree with the per curiam opinion affirming his\nconviction.\n Of course, this doesn’t answer every question. While\nillegal aliens are not among “the people” protected by the\nSecond Amendment, this doesn’t answer whether legally\npresent aliens, such as legal permanent residents, may\ninvoke the Second Amendment guarantee. This also doesn’t\nanswer how the Second Amendment’s incorporation against\nthe States through the Due Process Clause, which applies to\n“person[s],” changes the analysis for a state law challenge.\nSee McDonald, 561 U.S. at 850 n.19 (Thomas, J.,\nconcurring). Those are difficult questions on which I\nexpress no views. For now, it is enough to make clear that\nillegal aliens are not among “the people” the Second\nAmendment protects.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11234851/", "author_raw": "BUMATAY, Circuit Judge, concurring"}]}	JOHNNIE B RAWLINSON	DANIEL A BRESS	PATRICK J BUMATAY	1		{}	2	0	1	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10768266/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,768,267	Peridot Tree, Inc. v. City of Sacramento	2026-01-02	24-7196	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Johnnie B. Rawlinson, Daniel A. Bress, and Patrick J. Bumatay, Circuit Judges.", "parties": "", "opinions": [{"author": "BRESS, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\nPERIDOT TREE WA, INC., No. 24-3481\n D.C. No.\n Plaintiff - Appellant,\n 3:23-cv-06111-\n TMC\n v.\n\nWASHINGTON STATE LIQUOR\nAND CANNABIS CONTROL OPINION\nBOARD; WILLIAM LUKELA,\n\n Defendants - Appellees.\n\n Appeal from the United States District Court\n for the Western District of Washington\n Tiffany M. Cartwright, District Judge, Presiding\n\nPERIDOT TREE, INC.; KENNETH No. 24-7196\nGAY,\n D.C. No.\n 2:22-cv-00289-\n Plaintiffs - Appellants,\n KJM-SCR\n v.\n\nCITY OF SACRAMENTO; DAVINA\nSMITH,\n\n Defendants - Appellees.\n\f2 PERIDOT TREE WA, INC. V. WA STATE LCB\n\n\n Appeal from the United States District Court\n for the Eastern District of California\n Kimberly J. Mueller, District Judge, Presiding\n\n Argued and Submitted June 3, 2025\n Seattle, Washington\n\n Filed January 2, 2026\n\nBefore: Johnnie B. Rawlinson, Daniel A. Bress, and Patrick\n J. Bumatay, Circuit Judges.\n\n Opinion by Judge Bress\n\f PERIDOT TREE WA, INC. V. WA STATE LCB 3\n\n\n SUMMARY \n\n\n Dormant Commerce Clause\n\n In these consolidated appeals, the panel affirmed the\njudgments of two district courts dismissing actions\nchallenging, under the dormant Commerce Clause, cannabis\nlicensing dispensary schemes in the City of Sacramento and\nthe State of Washington, which require a person to have been\na resident of the area for a specified period of time to be\neligible for a cannabis dispensary license.\n Both district courts held that the dormant Commerce\nClause does not apply to residency requirements for\ncannabis dispensaries because marijuana is illegal under\nfederal law.\n Affirming the judgments of the district courts, the panel\ndeclined to extend the dormant Commerce Clause to\ninterstate commerce in a drug market that Congress has\ndeclared illegal. Mindful of the Supreme Court’s directive\nthat extreme caution is warranted before a court deploys its\nimplied authority under the dormant Commerce Clause, the\npanel saw insufficient license in Supreme Court precedent to\nuse the judge-made dormant Commerce Clause to promote\na constitutional right to interstate commerce that is unlawful\nunder federal law.\n\n\n\n\n\n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\f4 PERIDOT TREE WA, INC. V. WA STATE LCB\n\n\n COUNSEL\n\nJeffrey M. Jensen (argued), Jeffrey M. Jensen PC, Beverley\nHills, California; Christian Kernkamp, Kernkamp Law APC,\nLos Angeles, California; for Plaintiff-Appellant.\nTera M. Heintz (argued), Deputy Solicitor General; Penny\nAllen, Senior Counsel; Samantha Hellwig and Jonathan\nPitel, Assistant Attorneys General; Robert W. Ferguson,\nWashington Attorney General; Office of the Washington\nAttorney General, Olympia, Washington; Lee H. Roistacher\n(argued), Dean Gazzo Roistacher LLP, Solana Beach,\nCalifornia; Andrea M. Velasquez, Supervising Deputy City\nAttorney; Susan A. Wood, City Attorney; Sacramento\nOffice of the City Attorney, Sacramento, California; for\nDefendants-Appellees.\nJason Horst, Horst Legal Counsel PC, Walnut Creek,\nCalifornia, for Amicus Curiae Alliance for Sensible\nMarkets.\nTaylor Kayatta and Arthur J. Wylene, Rural County\nRepresentatives of California, Sacramento, California, for\nAmici Curiae California State Association of Counties and\nLeague of California Cities.\n\f PERIDOT TREE WA, INC. V. WA STATE LCB 5\n\n\n OPINION\n\nBRESS, Circuit Judge:\n\n Marijuana remains illegal under federal law, but many\nstates have legalized its sale and use for medicinal and\nrecreational purposes. To ensure proper oversight over\nmarijuana sales, these states and localities have adopted a\nvariety of rules governing cannabis dispensaries. As part of\nthese regimes, certain jurisdictions require a person to have\nbeen a resident of that area for a specified period of time to\nbe eligible for a cannabis dispensary license, or else give\npriority to these persons when issuing licenses. We are asked\nto decide whether two of these cannabis dispensary licensing\nregimes—those of the State of Washington and the City of\nSacramento—violate the dormant Commerce Clause.\n We hold that the dormant Commerce Clause does not\napply here. Mindful of the Supreme Court’s directive that\n“‘extreme caution’ is warranted before a court deploys” its\n“implied authority” under the dormant Commerce Clause,\nNat’l Pork Producers Council v. Ross, 598 U.S. 356, 390\n(2023) (quoting Gen. Motors Corp. v. Tracy, 519 U.S. 278,\n310 (1997)), we decline to extend the dormant Commerce\nClause to interstate commerce in a drug market that\nCongress has declared illegal. Although we appreciate that\njudges on other courts are divided on this question, we see\ninsufficient license in Supreme Court precedent to use the\njudge-made dormant Commerce Clause to promote a\nconstitutional right to interstate commerce that is unlawful\nunder federal law. The two district courts in these cases both\nreached the same conclusion. In both cases, we therefore\naffirm.\n\f6 PERIDOT TREE WA, INC. V. WA STATE LCB\n\n\n I\n A\n Under the federal Controlled Substances Act (CSA), it is\nunlawful “to manufacture, distribute, or dispense, or possess\nwith intent to manufacture, distribute, or dispense, a\ncontrolled substance,” including marijuana. 21 U.S.C.\n§ 841(a)(1); see 21 U.S.C. § 812(c) (classifying marijuana as\na Schedule I substance); Patients Mut. Assistance Collective\nCorp. v. Comm’r of Internal Revenue, 995 F.3d 671, 674 (9th\nCir. 2021). Marijuana’s classification under the CSA reflects\na congressional determination about marijuana’s “high\npotential for abuse, lack of any accepted medical use, and\nabsence of any accepted safety for use in medically\nsupervised treatment.” Gonzales v. Raich, 545 U.S. 1, 14\n(2005) (citing 21 U.S.C. § 812(b)(1)).\n Despite this longstanding federal prohibition, many\nstates have legalized marijuana for adult medicinal and\nrecreational purposes. See, e.g., Raich, 545 U.S. at 5;\nStanding Akimbo, LLC v. United States, 141 S. Ct. 2236,\n2237 (2021) (statement of Thomas, J., respecting the denial\nof certiorari); Peridot Tree, Inc. v. City of Sacramento, 94\nF.4th 916, 921 (9th Cir. 2024). In response, Congress has\nsent “mixed signals.” Peridot Tree, 94 F.4th at 923. For the\nlast approximately ten years, Congress has included a\nversion of the Rohrabacher-Farr Amendment in its\nappropriation to the U.S. Department of Justice. See, e.g.,\nConsolidated Appropriations Act of 2024, Pub. L. No. 118-\n42, § 531, 138 Stat. 25 (2024); Standing Akimbo, 141 S. Ct.\nat 2237 (statement of Thomas, J.); Peridot Tree, 94 F.4th at\n923–24; United States v. Kleinman, 880 F.3d 1020, 1027 (9th\nCir. 2017); Northeast Patients Grp. v. United Cannabis\nPatients & Caregivers of Maine, 45 F.4th 542, 547–48 (1st\n\f PERIDOT TREE WA, INC. V. WA STATE LCB 7\n\n\nCir. 2022). This appropriations rider provides that “[n]one\nof the funds made available under this Act to the Department\nof Justice may be used . . . to prevent [specified states] from\nimplementing their own laws that authorize the use,\ndistribution, possession, or cultivation of medical\nmarijuana.” Consolidated Appropriations Act of 2024, 138\nStat. at 174.\n For its part, the DOJ in recent times has not made\nmarijuana an enforcement priority. See, e.g., Peridot Tree,\n94 F.4th at 924. Recently, on December 18, 2025, the\nPresident signed an Executive Order concerning the use of\nmarijuana for medical purposes. See Increasing Medical\nMarijuana and Cannabidiol Research, Executive Order\n(Dec. 18, 2025), https://www.whitehouse.gov/presidential-\nactions/2025/12/increasing-medical-marijuana-and-\ncannabidiol-research/. As part of this Executive Order, the\nPresident directed the Attorney General to “take all\nnecessary steps to complete the rulemaking process related\nto rescheduling marijuana to Schedule III of the CSA . . . in\naccordance with Federal law.” Id. The Executive Order\nfurther directs the Executive Branch to “work with the\nCongress to update the statutory definition of final hemp-\nderived cannabinoid products to allow Americans to benefit\nfrom access to appropriate full-spectrum [cannabidiol]\nproducts while preserving the Congress’s intent to restrict\nthe sale of products that pose serious health risks.” Id.\nNevertheless, at this time, marijuana remains illegal under\nthe CSA.\n California legalized recreational cannabis in 2016, and\nmany counties and cities then passed ordinances to regulate\nits sale, production, and purchase. Peridot Tree, 94 F.4th at\n921. These measures were designed to “prevent state-level\nlegalization from harming local communities” while also\n\f8 PERIDOT TREE WA, INC. V. WA STATE LCB\n\n\ncreating business opportunities for “those negatively\naffected by marijuana’s past criminalization.” Id.\nSacramento’s Cannabis Opportunity Reinvestment and\nEquity (CORE) Program is the city’s mechanism for\nlicensing marijuana dispensaries (medical and recreational).\nId. The CORE Program established five different\nclassifications for licensing purposes, two of which are\nrelevant here:\n\n Classification 1. A current or former resident\n of the City of Sacramento who previously\n resided or currently resides in a low-income\n household and was either: a) arrested or\n convicted for a cannabis related crime in\n Sacramento between the years 1980 and\n 2011; or is b) an immediate family member\n of an individual described in subsection a of\n Classification 1 or Classification 2.\n Classification 2. A current or former resident\n of the City of Sacramento who has lived in a\n low-income household for at least five (5)\n years, between the years of 1980 and 2011 in\n the following zip codes: [¶] 95811, 95815,\n 95817, 95820, 95823, 95824, 95826, 95828,\n and 95818.\n\nBoth of these Classifications require participants to be\ncurrent or former Sacramento residents. The other\nClassifications pertaining to businesses are keyed to the\nClassification 1 and 2 criteria.\n After implementing the CORE Program, Sacramento set\naside ten storefront cannabis dispensary permits specifically\nfor Classification 1 and 2 participants only. See Peridot Tree,\n\f PERIDOT TREE WA, INC. V. WA STATE LCB 9\n\n\n94 F.4th at 922. A city ordinance limited the total number of\npermits to 40, and the other 30 had already been granted, so\nthe only people eligible to apply for an available permit were\nthose who met the residency requirement. Id.\n Like California, Washington has also legalized\nmarijuana, doing so in 2012 through a voter initiative known\nas Initiative Measure 502. This Measure authorized the\nWashington State Liquor & Cannabis Board (“LCB”) to\nregulate the cannabis market. RCW §§ 69.50.331(4), .342,\n.345 (2013). Since 2015, Washington has imposed a six-\nmonth residency requirement for cannabis dispensary\nlicenses. Id. § 69.50.331(1)(b) (2015). In 2020, Washington\ncreated the Social Equity Program in an effort “to reduce\nbarriers to entry to the cannabis industry for individuals and\ncommunities most adversely impacted by the enforcement\nof cannabis-related laws.” 2020 Wash. Sess. Laws Ch. 236\n§ 1(1). Under this program, which bears similarities to the\nSacramento regime that we discussed above, the LCB now\nreserves retail cannabis licenses exclusively for social equity\napplicants. RCW § 69.50.335(1)(a), (2)(a).\n In 2022, the LCB adopted the Social Equity Program\ncriteria. To be considered, applicants must meet the\nfollowing criteria:\n\n (b) At least a 51 percent majority, or\n controlling interest, in the applicant, must be\n held by a person, or persons, who has or have\n resided in Washington state for six months\n prior to the application date, consistent with\n RCW 69.50.331, and meets at least two of the\n following qualifications:\n\f10 PERIDOT TREE WA, INC. V. WA STATE LCB\n\n\n (i) Qualification 1: The social equity\n applicant or applicants have lived in a\n disproportionately impacted area in\n Washington state for a minimum of five\n years between 1980 and 2010; or\n (ii) Qualification 2: The social equity\n applicant or a family member of the\n applicant has been arrested or convicted\n of a cannabis offense; or\n (iii) Qualification 3: The social equity\n applicant’s household income in the year\n prior to submitting the application was\n less than the median household income\n within the state of Washington as\n calculated by the United States Census\n Bureau.\n\nWash. Admin. Code § 314-55-570(2) (2022).\n“Disproportionately impacted area” means: “a census tract\nwithin Washington state where community members were\nmore likely to be impacted by the war on drugs. The board\nwill provide maps to identify disproportionately impacted\nareas.” Id. § 314-55-570(1)(a). The LCB posted maps\nidentifying disproportionately impacted areas in Washington\nby decade, from 1980 to 2010. Applicants are awarded\npoints according to a scoring rubric—40 points for having\nlived in a disproportionately impacted area, and 20 to 40\nadditional points if they have lived in the area for longer\nperiods of time. Washington amended its social equity\nprovision effective January 2025, but in ways that are\nimmaterial to this case. See id. § 314-55-570(4) (2025).\n\f PERIDOT TREE WA, INC. V. WA STATE LCB 11\n\n\n B\n Kenneth Gay is a resident of Michigan and the majority\nowner of Peridot Tree, Inc., a California corporation, and\nPeridot Tree WA, a Washington corporation. The Peridot\nTree entities are the plaintiffs in these two cases. We will\nrefer to them in the singular, as Peridot.\n Peridot applied for a license in King County, Washington\nthrough the Social Equity Program. On September 17, 2023,\nthe LCB notified Peridot that its application would not be\nconsidered because Peridot failed to meet the minimum\nresidency qualifications. Peridot asserts that it met all\napplication requirements except those favoring Washington\nresidents. A similar story played out in Sacramento. Peridot\nclaims it met Sacramento’s requirements for CORE\nClassification 1 and 2, except for the residency requirement,\nwhich was the reason its application to operate a Sacramento\ncannabis dispensary was rejected.\n Peridot filed substantially identical lawsuits under 42\nU.S.C. § 1983 claiming that the Sacramento and Washington\ncannabis dispensary licensing schemes violated the dormant\nCommerce Clause by preferring in-state interests over out-\nof-state competitors. The Sacramento case had a prior trip\nto our court on a different issue involving abstention. See\nPeridot Tree, 94 F.4th at 924. Ultimately, the district courts\nin both cases dismissed Peridot’s suits under Rule 12(b)(6)\nand denied Peridot’s requests for preliminary injunctions.\n Both district courts held that the dormant Commerce\nClause does not apply to residency requirements for\ncannabis dispensaries because marijuana is illegal under\nfederal law. The district court in the Western District of\nWashington, for example, concluded that the dormant\nCommerce Clause does not “protect an interstate market that\n\f12 PERIDOT TREE WA, INC. V. WA STATE LCB\n\n\nCongress affirmatively prohibited, given that protecting this\nmarket would facilitate illegal interstate activity. Peridot\ncannot use the dormant Commerce Clause to demand a\nconstitutional right to participate in an illegal interstate\nmarket.” The district court in the Eastern District of\nCalifornia reasoned similarly in an equally thoughtful\nopinion on this question of first impression in the Ninth\nCircuit.\n We consolidated these cases for oral argument and now\nissue this single opinion that resolves both appeals. We\nreview dismissals under Rule 12(b)(6) de novo. See, e.g.,\nPardini v. Unilever U.S., Inc., 65 F.4th 1081, 1084 (9th Cir.\n2023).\n II\n A\n The Constitution’s Commerce Clause gives Congress the\npower to “regulate Commerce . . . among the several States.”\nU.S. CONST. art. I, § 8, cl. 3. Although it is an affirmative\ngrant of power to Congress, the Supreme Court has\ninterpreted the Commerce Clause to impliedly preclude\ncertain state laws that restrain interstate commerce. See, e.g.,\nPork Producers, 598 U.S. at 368; Tenn. Wine & Spirits\nRetailers Ass’n v. Thomas, 588 U.S. 504, 514 (2019). This\n“‘negative’ aspect of the Commerce Clause prevents the\nStates from adopting protectionist measures and thus\npreserves a national market for goods and services.” Tenn.\nWine & Spirits Retailers Ass’n, 588 U.S. at 514 (quoting New\nEnergy Co. of Ind. v. Limbach, 486 U.S. 269, 273 (1988)).\n The “very core” of the dormant Commerce Clause is that\nStates may not discriminate against interstate commerce\nthrough “regulatory measures designed to benefit in-state\n\f PERIDOT TREE WA, INC. V. WA STATE LCB 13\n\n\neconomic interests by burdening out-of-state competitors.”\nPork Producers, 598 U.S. at 369 (first quoting Camps\nNewfound/Owatonna, Inc. v. Town of Harrison, 520 U.S.\n564, 581 (1997), and then quoting Dep’t of Revenue of Ky. v.\nDavis, 553 U.S. 328, 337–38 (2008)). A law that\ndiscriminates against interstate commerce is “‘virtually per\nse invalid’ and will survive only if it ‘advances a legitimate\nlocal purpose that cannot be adequately served by reasonable\nnondiscriminatory alternatives.’” Dep’t of Revenue of Ky.,\n553 U.S. at 338 (citation omitted) (quoting Oregon Waste\nSys., Inc. v. Dep’t of Env’tl Quality of Ore., 511 U.S. 93, 99,\n101 (1994)); see also South Dakota v. Wayfair, Inc., 585 U.S.\n162, 173 (2018); Flynt v. Bonta, 131 F.4th 918, 923 (9th Cir.\n2025). By presumptively prohibiting discrimination against\ninterstate commerce, the dormant Commerce Clause inhibits\nStates from “restrain[ing] the free exchange of goods and\nservices in an interstate market.” Flynt, 131 F.4th at 923; see\nalso Pork Producers, 598 U.S. at 369; South Dakota, 585\nU.S. at 173; Dep’t of Revenue of Ky., 553 U.S. at 337–38.\n In analyzing the legal question in this case, we are guided\nby two key aspects of the Supreme Court’s dormant\nCommerce Clause jurisprudence. First, “the proposition that\nthe Commerce Clause by its own force restricts state\nprotectionism is deeply rooted in” the Supreme Court’s case\nlaw. Tenn. Wine & Spirits Retailers Ass’n, 588 U.S. at 515.\nIt is our role as an inferior court to apply this case law,\nfaithful to its moorings and objectives.\n Second, although the dormant Commerce Clause is\nbased on longstanding precedent, the Supreme Court has\nalso instructed that we must tread cautiously when\nconsidering whether to invalidate state laws under the court-\ninferred dormant Commerce Clause. As the Supreme Court\nrecently reiterated, “‘extreme caution’ is warranted before a\n\f14 PERIDOT TREE WA, INC. V. WA STATE LCB\n\n\ncourt deploys this implied authority.” Pork Producers, 598\nU.S. at 390 (quoting Gen. Motors Corp., 519 U.S. at 310).\nIn Pork Producers, the Supreme Court’s latest word in this\narea, the Court “decline[d] th[e] invitation” to fashion “new\nand more aggressive constitutional restrictions on the ability\nof States to regulate goods sold within their borders.” Id. at\n364. As the Court made clear, “[p]reventing state officials\nfrom enforcing a democratically adopted state law in the\nname of the dormant Commerce Clause is a matter of\n‘extreme delicacy.’” Id. at 390 (quoting Conway v. Taylor’s\nExecutor, 66 U.S. 603, 634, 1 Black 603 (1861)). This\ncaution about overriding democratically enacted laws\nthrough the “implied judicial power” of the dormant\nCommerce Clause, id., is itself deeply rooted in the Court’s\nlongstanding guidance in this area, which has historically\nemphasized this same point. See, e.g., United Haulers Ass’n,\nInc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S.\n330, 343–45 (2007); Gen. Motors Corp., 519 U.S. at 309–\n10; S.C. State Highway Dep’t v. Barnwell Bros., 303 U.S.\n177, 190–91 (1938); Conway, 66 U.S. at 634, 1 Black 603.\n B\n This case raises the question of whether the dormant\nCommerce Clause even applies to state restrictions on an\ninterstate market that Congress has deemed unlawful. Is\nthere, in effect, an implied constitutional right to engage in\nillegal interstate commerce? The Supreme Court has never\nanswered this question. But two other circuits have, as have\na number of district courts. Although other circuits have\nheld that the dormant Commerce Clause applies to marijuana\neven though it is illegal under federal law, judges on those\ncourts have disagreed and would have held otherwise.\nNumerous district courts, meanwhile, have aligned\nthemselves with those dissenting views and have concluded\n\f PERIDOT TREE WA, INC. V. WA STATE LCB 15\n\n\nthat the dormant Commerce Clause does not apply to\nprotectionist marijuana laws. Before turning to the question\nourselves, we review what others have said on the issue.\n The first circuit to address this issue was the First Circuit\nin Northeast Patients Group, 45 F.4th at 542. That case\nconcerned a dormant Commerce Clause challenge to a\nMaine law requiring that officers and directors of medical\nmarijuana dispensaries operating in Maine be Maine\nresidents. Id. at 544. Over a dissent, the First Circuit held\nthat the Maine law violated the dormant Commerce Clause.\n The First Circuit began by explaining that if Maine’s\nresidency requirement “were applied to a lawful market,” it\nwould not survive dormant Commerce Clause scrutiny\nbecause it would not be “narrowly tailored to serve a\nlegitimate local purpose.” Id. at 546. The court then\nconcluded that it made no difference that “federal law makes\nparticipation in the market to which the residency\nrequirement applies illegal.” Id. at 546–47.\n The First Circuit recognized that notwithstanding the\nCSA, there “is an established, albeit illegal, interstate\nmarket” in marijuana. Id. at 547 (emphasis removed)\n(quoting Raich, 545 U.S. at 18). It rejected the notion that\nthrough the CSA, Congress had effectively displaced the\ndormant Commerce Clause in this area or otherwise\nconsented to protectionist state measures, believing any such\ncongressional intent could not be sufficiently discerned. Id.\nat 548–56. Nor did it matter to the dormant Commerce\nClause analysis that marijuana is illegal under federal law.\nIn the First Circuit’s view, “given the long-held\nunderstanding that the dormant Commerce Clause has a\nnegative aspect, there would seem to be no basis for our\ndeclining to enforce the dormant Commerce Clause unless\n\f16 PERIDOT TREE WA, INC. V. WA STATE LCB\n\n\nthere were a reason for us to think that Congress” has\narticulated a contrary intent, which Congress had not done.\nId. at 556–57.\n Judge Gelpí issued a forceful dissent. Judge Gelpí\n“disagree[d] that the test we have developed for the mine-\nrun of dormant Commerce Clause cases applies\nautomatically or with equal vigor when the market in\nquestion is illegal as a matter of federal law.” Id. at 558\n(Gelpí, J., dissenting). In his view, “the principles that\nanimate the dormant Commerce Clause” do not apply in this\ncontext. Id. A central rationale of the dormant Commerce\nClause is maintaining “an unencumbered ‘national market.’”\nId. at 559 (quoting Gen. Motors Corp., 519 U.S. at 299).\nThat “‘fundamental objective’” is “inapplicable” when\n“Congress has already outlawed the national market for\nmarijuana.” Id. (quoting Gen. Motors Corp., 519 U.S. at\n299). Judge Gelpí would have held that “illegal markets are\nconstitutionally different in kind,” and that the dormant\nCommerce Clause should thus not be understood to\n“protect[] the free-flowing operation of national markets that\nCongress has already made illegal.” Id. That was especially\ntrue considering that by the logic of the majority opinion, the\ndormant Commerce Clause would promote the free\nexchange of heroin, fentanyl, or any other illicit good that a\nstate might try to legalize. Id.\n The Second Circuit in Variscite NY Four, LLC v. New\nYork State Cannabis Control Bd., 152 F.4th 47 (2d Cir.\n2025), was the second federal court of appeals to address this\nissue. It considered a dormant Commerce Clause challenge\nto a New York law that prioritized New York residents for\nmarijuana dispensary licenses. Id. at 52, 54–55. Like the\nFirst Circuit, the Second Circuit held that this regime\nviolated the dormant Commerce Clause, although once\n\f PERIDOT TREE WA, INC. V. WA STATE LCB 17\n\n\nagain, the panel was not unanimous in its decision. Id. at\n65–66.\n The Variscite NY Four majority began by explaining that\nthe dormant Commerce Clause is “expressed through a\nbright-line rule: ‘the Commerce Clause prohibits the\nenforcement of state laws driven by economic\nprotectionism—that is, regulatory measures designed to\nbenefit in-state economic interests by burdening out-of-state\ncompetitors.’” Id. at 60 (quoting Pork Producers, 598 U.S.\nat 369). The court acknowledged that the “fundamental\nobjective” of maintaining a national market free of state\ninterference “applies with some irony in the context of illicit\nmarkets.” Id. (quoting Gen. Motors Corp., 519 U.S. at 299).\nBut in the court’s view, “that objective should not be\nconflated with the rule itself.” Id. It was thus of “no\nconstitutional import” that marijuana is illegal at the federal\nlevel. Id. (quoting Raich, 545 U.S. at 19 n.29). And\nexempting illegal markets from the dormant Commerce\nClause would produce market distortion if Congress later\nlegalized marijuana, for at that point States would have\n“bake[d] in advantages for their residents.” Id. at 61. Nor,\nthe Second Circuit concluded, had Congress sufficiently\nexpressed its intent to bless protectionist state regimes in this\narea. Id. at 61–63.\n Chief Judge Livingston dissented, describing the\nmajority’s conclusion as “obviously wrong.” Id. at 66\n(Livingston, C.J., dissenting). In Chief Judge Livingston’s\nview, “[w]hen Congress criminalizes a market,” we should\n“presume that it authorizes states to enact their own laws that\naid that objective, whether by banning, restricting, or\nburdening those transactions.” Id. at 67. And we should “not\ninterpret a doctrine implied from the Commerce Clause—an\naffirmative grant of power to Congress—to require states to\n\f18 PERIDOT TREE WA, INC. V. WA STATE LCB\n\n\nenact laws that promote the very interstate commerce\nCongress wants to eradicate.” Id. 1\n The First and Second Circuits are presently the only\nfederal courts of appeals to evaluate whether the dormant\nCommerce Clause applies to protectionist marijuana laws.\nAt the district court level, the views of the dissents in these\ncases have found greater purchase. A few district courts, like\nthe First and Second Circuits, have held that the dormant\nCommerce Clause invalidates discriminatory cannabis laws.\nSee NPG, LLC v. City of Portland, Maine, 2020 WL\n4741913, at 9–10 (D. Me. Aug. 14, 2020); Finch v. Treto,\n606 F. Supp. 3d 811, 831–33 (N.D. Ill. 2022). But many\nother district courts—including the two decisions on review\nhere—have held that the dormant Commerce Clause does\nnot apply to marijuana given its status as an illegal drug\nunder federal law. See Charm City Hemp, LLC v. Moore,\n2025 WL 2165173, at 22–23 (D. Md. July 30, 2025);\nFluresh, LLC v. City of Grand Rapids, 2025 WL 1122034, at\n8 (W.D. Mich. Apr. 16, 2025); Variscite, Inc. v. City of L.A.,\n2025 WL 433448, at 3 (C.D. Cal. Feb. 4, 2025); Jensen v.\nMaryland Cannabis Admin., 719 F. Supp. 3d 466, 483 (D.\nMd. 2024), aff’d by 151 F.4th 169 (4th Cir. 2025); Variscite\nNY Four, LLC v. New York State Cannabis Control Bd., 2024\nWL 406490, at 12 (N.D.N.Y. Feb. 2, 2024), overruled by\n152 F.4th 47; Brinkmeyer v. Washington State Liquor &\nCannabis Board, 2023 WL 1798173, at 9–13 (W.D. Wash.\nFeb. 7, 2023); Original Invs., LLC v. State of Oklahoma, 542\n\n1\n The Fourth Circuit recently resolved a dormant Commerce Clause\nchallenge to a Maryland cannabis licensing law. See Jensen v. Maryland\nCannabis Admin., 151 F.4th 169 (4th Cir. 2025). But the court held that\nthe law did not discriminate against out-of-state interests. Id. at 176–77.\nThe court did not reach “the question of whether the Dormant Commerce\nClause applies to the marijuana market.” Id. at 177 n.3.\n\f PERIDOT TREE WA, INC. V. WA STATE LCB 19\n\n\nF. Supp. 3d 1230, 1231 (W.D. Okla. 2021); see also Ctrl Alt\nDestroy v. Elliott, 2025 WL 790963, at 8 (S.D. Cal. Mar.\n12, 2025) (bolstering holding under unclean hands doctrine\nby relying on the “numerous district courts” that “have held\nthat the protections afforded by the dormant Commerce\nClause do not apply to the commercial cannabis industry, a\nfederally illegal market”).\n Just as both district courts below did, many of these\ndistrict courts have relied on Judge Gelpí’s dissent in the\nFirst Circuit case. See, e.g., Fluresh, 2025 WL 1122034, at\n8; Jensen, 719 F. Supp. 3d at 483. As one district court\nwrote, the goal of the dormant Commerce Clause—\n“‘preserv[ing] a national market for competition undisturbed\nby preferential advantages conferred by a State upon its\nresidents’”—is “not served by encouraging such a market for\na good that Congress has already expressly declared to be\nillegal and against the public interest.” Jensen, 719 F. Supp.\n3d at 483 (quoting Northeast Patients Grp., 45 F.4th at 558–\n59 (Gelpí, J., dissenting)).\n C\n There is force to the argument that through the CSA,\nCongress expressed an intent to permit protectionist state\nregimes that restrict interstate commerce in marijuana, and\nthat the usual test for assessing this congressional intent\nshould be relaxed when Congress has made the good in\nquestion illegal. See Variscite NY Four, 152 F.4th at 67–70\n(Livingston, C.J., dissenting); Northeast Patients Grp., 45\nF.4th at 559 (Gelpí, J., dissenting)). But we conclude as an\nantecedent matter that the dormant Commerce Clause need\nnot be extended to facilitate interstate commerce that is\nillegal under federal law.\n\f20 PERIDOT TREE WA, INC. V. WA STATE LCB\n\n\n The Supreme Court has never extended the dormant\nCommerce Clause in this manner or suggested that it should\nbe so extended. Instead, the Court has explained that the\n“fundamental objective” of the dormant Commerce Clause\nis to “preserv[e] a national market for competition\nundisturbed by preferential advantages conferred by a State\nupon its residents or resident competitors.” Gen. Motors\nCorp., 519 U.S. at 299. That “fundamental objective” of\npreserving “‘free private trade in the national marketplace,’”\nid. at 287, 299 (quoting Reeves, Inc. v. Stake, 447 U.S. 429,\n437 (1980)), surely wanes when the national marketplace is\nprohibited under federal law.\n When considering the dormant Commerce Clause, “it is\nthe responsibility of the judiciary to determine whether\naction taken by state or local authorities unduly threatens the\nvalues the Commerce Clause was intended to serve.”\nWardair Canada, Inc. v. Florida Dep’t of Revenue, 477 U.S.\n1, 7 (1986). And when “Congress has already outlawed the\nnational market for marijuana,” we do not see why the\nConstitution would insist that we “protect[] the free-flowing\noperation” of illegal interstate commerce. Northeast\nPatients Grp., 45 F.4th at 559 (Gelpí, J., dissenting). The\ndormant Commerce Clause reflects an anti-discrimination\nrule, to be sure, but the Supreme Court has not said that the\nrule must blindly apply in all contexts. And it is not too\nmuch to think that the “premise” of the Clause’s negative\ncomponent is the existence of a legally valid market that\nfederal law does not proscribe. Id. Nothing in dormant\nCommerce Clause precedent requires us to indulge the\n“obvious ‘irony’ of applying a doctrine implied from an\naffirmative grant of power to Congress to preserve a national\nmarket that Congress does not want to exist.” Variscite NY\n\f PERIDOT TREE WA, INC. V. WA STATE LCB 21\n\n\nFour, 152 F.4th at 70 (Livingston, C.J., dissenting)\n(quotations omitted).\n The contours of the dormant Commerce Clause are not\nso rigid as to be unable to account for the fact that marijuana\nis illegal under federal law. See Flynt, 131 F.4th at 923 (“As\na judge-made and enforced doctrine, the strictures of the\ndormant Commerce Clause have ebbed and flowed over time\nthrough case law, with the Supreme Court refining the\ndoctrine’s proper scope.”). “[E]xtreme caution” and\n“extreme delicacy” are the orders of the day when\nconsidering whether to extend the protections of the dormant\nCommerce Clause. Pork Producers, 598 U.S. at 390\n(quotations omitted). The caution that the Supreme Court\nhas counseled reflects not only hesitancy about the ability of\ncourts to fashion principled rules to govern interstate\ncommerce, but the fact that any invocation of the dormant\nCommerce Clause amounts to a judicial intrusion on a\ndemocratically enacted law. See id. Here, extending the\ndormant Commerce Clause to cannabis dispensary licensing\nregimes would override the democratic process twice over,\nfirst by potentially invalidating state and local laws\ngoverning marijuana dispensaries, and then by\ncountermanding Congress’s own judgment about the\nharmfulness of the controlled substance in question. The\nextreme caution we must exercise when working with this\nimplied doctrine would seem at its apex when confronted\nwith the prospect of hammering in a regulatory regime\nthrough the blunt force object of a per se rule of invalidity,\nwhich would force states to open up their marijuana markets\neven further once they have opened them partway.\n The mixed signals that the federal government has sent\nabout marijuana legalization at the state level do not change\nour calculus. It is true that Congress has used its power of\n\f22 PERIDOT TREE WA, INC. V. WA STATE LCB\n\n\nthe purse to limit DOJ interference with state medical\nmarijuana regimes, see, e.g., Consolidated Appropriations\nAct of 2024, 138 Stat. at 174, and that federal enforcement,\nif it can be called that, reflects a non-enforcement approach.\nBut our assessment of the dormant Commerce Clause’s\nreach cannot turn on how much the political branches still\nbelieve in the laws that are on the books. “[I]n our\nconstitutional order, it’s Congress that passes laws, Congress\nthat saw fit to enact 21 U.S.C. § 841, and Congress that in\n§ 841 made the distribution of marijuana a federal crime.”\nFeinberg v. C.I.R., 808 F.3d 813, 816 (10th Cir. 2015)\n(Gorsuch, J.). That is enough to tell us that the national\nmarketplace Peridot seeks to further open is one that federal\nlaw disallows.\n There is an ongoing debate in our country, at both the\nnational and local levels, about whether marijuana should be\nlegalized and, if so, what kinds of regulatory schemes should\ngovern. But when Congress has made the national\nmarketplace illegal, the premises of the dormant Commerce\nClause do not require the courts to leapfrog the political\nprocess and inaugurate free trade in the market for marijuana\ndispensary licenses. And we are uncertain where the\ncontrary logic would take us, if for example, a state were to\nlegalize even more harmful drugs, such as heroin. See\nNortheast Patients Grp., 45 F.4th at 559 (Gelpí, J.,\ndissenting) (“My reluctance to join my colleagues in\nextending constitutional solicitude to protecting an illegal\nmarket is heightened if one were to imagine extending the\nsame logic to relieve burdens on the illicit trade in other\nSchedule I controlled substances, such as heroin, fentanyl,\nor cocaine, or indeed most any other black market in goods\nor services which Congress has determined is harmful to the\npublic interest.”). A doctrine of constitutional law that\n\f PERIDOT TREE WA, INC. V. WA STATE LCB 23\n\n\ncatapults a state’s legalization of an illicit drug into dormant\nCommerce Clause protection would have courts facilitating,\nif not creating, the very national marketplaces that Congress\nhas disallowed. This is a far cry from what the dormant\nCommerce Clause set out to do.\n In reaching a different conclusion, the Second Circuit\nexpressed concern that without the protections of the\ndormant Commerce Clause, “States would then be free today\nto bake in advantages for their residents should Congress\nlater legalize the market.” Variscite NY Four, 152 F.4th at\n61. But the possibility that Congress might one day legalize\nmarijuana or that marijuana may at some point become\nreclassified under the CSA provides no basis for the judicial\nenabling of a marketplace that is presently not supposed to\nexist as a matter of federal law. See Raich, 545 U.S. at 19\n(discussing “the federal interest in eliminating commercial\ntransactions in the interstate market in their entirety”). We\nare not persuaded that the dormant Commerce Clause\nrequires us to contradict Congress’s judgment and protect an\nillegal national marketplace from state restrictions.\n The judgments of the district courts are\n AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11234852/", "author_raw": "BRESS, Circuit Judge:"}]}	JOHNNIE B RAWLINSON	DANIEL A BRESS	PATRICK J BUMATAY	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10768267/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,768,268	K.C. v. Las Vegas Metropolitan Police Department	2026-01-02	24-5580	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Mark J. Bennett, Gabriel P. Sanchez, and Holly A. Thomas, Circuit Judges.", "parties": "", "opinions": [{"author": "Andrew P. Gordon, Chief District Judge, Presiding", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n No. 24-5580\nK.C., a minor, by and through her\nguardian ad litem Carolina Navarro;\n D.C. No.\nA. S., a minor, by and through her\n 2:16-cv-03039-\nguardian ad litem Araceli Saenz;\n APG-NJK\nCAROLINA NAVARRO, guardian\nad litem on behalf of K.C.;\nARACELI SAENZ, guardian ad\n ORDER\nlitem on behalf of A.S.; AMBER\n CERTIFYING\nNEUBERT, guardian ad litem on\n QUESTION TO\nbehalf of K.C.; JACQUELINE\n THE SUPREME\nLAWRENCE; KEITH CHILDRESS\n COURT OF\nSr., Individually and as Successor in\n NEVADA\ninterest to Keith Childress, Jr.,\ndeceased; FREDERICK WAID, as\nspecial administrator of the Estate of\nKeith Childress, Jr.,\n\n Plaintiffs - Appellants,\n\n v.\n\nLAS VEGAS METROPOLITAN\nPOLICE DEPARTMENT; DOJ -\nUNITED STATES DEPARTMENT\nOF JUSTICE; ROBERT\nBOHANON; BLAKE WALFORD;\nJAMES LEDOGAR,\n\f2 K.C. V. LVMPD\n\n\n\n\n Defendants - Appellees,\n\nand\n\nBRIAN MONTANA, UNITED\nSTATES MARSHALS SERVICE,\n\n Defendants.\n\n Appeal from the United States District Court\n for the District of Nevada\n Andrew P. Gordon, Chief District Judge, Presiding\n\n Argued and Submitted October 6, 2025\n Las Vegas, Nevada\n\n Filed January 2, 2026\n\nBefore: Mark J. Bennett, Gabriel P. Sanchez, and Holly A.\n Thomas, Circuit Judges.\n\n\n SUMMARY \n\n\n Certification to Supreme Court of Nevada\n\n In an action arising from a lethal shooting in which\npolice officers mistakenly believed that a suspect carried a\n\n\n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\f K.C. V. LVMPD 3\n\n\nfirearm, the panel certified the following two questions to\nthe Supreme Court of Nevada:\n\n 1. Under Nevada law, can a plaintiff raise a\n theory of negligence based on an officer’s\n intentional use of force?\n 2. Is “reasonable care” under Nevada\n negligence law co-extensive with\n “reasonableness” under the Fourth\n Amendment?\n\n In a concurrently filed memorandum disposition, the\npanel affirmed the district court’s grant of summary\njudgment to defendants on plaintiffs’ Fourth Amendment\nexcessive force claim based on defendants’ first volley of\nshots and Fourteenth Amendment interference with familial\nrelationship claim.\n\n\n ORDER\n\n Pursuant to Rule 5 of the Nevada Rules of Appellate\nProcedure, we respectfully certify the following two\nquestions to the Supreme Court of Nevada:\n\n 1. Under Nevada law, can a plaintiff raise a\n theory of negligence based on an officer’s\n intentional use of force?\n 2. Is “reasonable care” under Nevada\n negligence law co-extensive with\n “reasonableness” under the Fourth\n Amendment?\n\f4 K.C. V. LVMPD\n\n\n The answer to these questions will be determinative of\nthe cause pending before this court as there is no controlling\nprecedent in the decisions of the Supreme Court of Nevada\nor the Nevada Court of Appeals. Nev. R. App. P. 5(a). We\ndo not intend our framing of these questions to restrict the\nSupreme Court of Nevada’s consideration of any issues it\ndetermines are relevant. Should the Supreme Court of\nNevada decide to consider the certified questions, it may, in\nits discretion, reformulate the questions. See Broad v.\nMannesmann Anlagenbau AG, 196 F.3d 1075, 1076 (9th Cir.\n1999). If the Court agrees to decide these questions, we will\naccept its decision. We hold Plaintiffs’ negligence claim in\nabeyance pending the result of certification.\n I.\n This case concerns a lethal shooting in which police\nofficers mistakenly believed that a suspect carried a firearm.\nWe briefly summarize the facts. On March 14, 2013, Keith\nChildress was indicted on charges of armed robbery and\nkidnapping in Arizona. He fled Arizona and crossed into\nNevada. On December 30, 2015, U.S. Marshals located\nChildress at his uncle’s home in Las Vegas and, on\nDecember 31, attempted to apprehend Childress. Childress\nfled on foot. The U.S. Marshals requested assistance from\nthe Las Vegas Metropolitan Police Department\n(“LVMPD”). A U.S. Marshal incorrectly reported that\nChildress was suspected of “attempted homicide.” LVMPD\nofficers were also informed that a firearm had been found in\nChildress’s uncle’s car and that Childress may have access\nto a firearm.\n LVMPD Sergeant Robert Bohanon and Officer Blake\nWalford responded to the call and identified Childress\nwalking on the right side of the road in a cul-de-sac.\n\f K.C. V. LVMPD 5\n\n\nBohanon commanded Childress to “get on the ground” and\nshow his “hands,” but Childress ignored the commands and\ninstead crossed to the left side of the street.\n The officers advanced and crouched behind a vehicle\nbeside two U.S. Marshals. Bohanon told Walford that\nChildress had a firearm in his right hand. Bohanon\nrepeatedly commanded Childress to drop his “gun” and\nshow his “hands.” Bohanon also warned, “If you advance\non us, you will be shot.”\n Childress then walked quickly toward the officers. The\nofficers testified that they could not see Childress’s right\nhand as he approached them. According to the officers,\nChildress’s hand was either in his pant pocket or hidden\nbehind his legs. Bohanon and Walford opened fire when\nChildress came within 45 feet of them. Bohanon fired two\nrounds, and Walford fired two or three rounds. Childress\nwas struck by the first volley of shots and fell to the ground.\nAfter a two-second pause, Bohanon fired two more shots as\nChildress lay on the ground. Walford paused for five\nseconds before firing two or three additional shots. Neither\nU.S. Marshal fired upon Childress.\n After the second volley of shots was fired, Officer James\nLedogar released a police dog onto Childress, which bit him\nfor fifteen seconds. The officers then handcuffed and\nsearched Childress’s body. They found a black phone in\nChildress’s right front pocket but no gun. Medical personnel\narrived and pronounced Childress dead at the scene.\n Childress’s estate, parents, and three minor children\n(“Plaintiffs”) sued Bohanon, Walford, Ledogar, and\nLVMPD (“Defendants”), asserting, inter alia, a Fourth\nAmendment excessive force claim against Bohanon and\nWalford for firing their weapons, a Fourth Amendment\n\f6 K.C. V. LVMPD\n\n\nexcessive force claim against Ledogar for his deployment of\na police dog, and state law negligence and battery claims\nagainst all the officer Defendants. As to Plaintiffs’ Fourth\nAmendment claims, the district court granted Defendants’\nmotion for summary judgment concerning Bohanon and\nWalford’s first volley of shots. The court concluded that the\nofficers had a reasonable albeit mistaken belief that\nChildress was armed and posed an immediate threat to their\nsafety, and that their use of force was reasonable as a matter\nof law. The district court denied summary judgment as to\nBohanon and Walford’s second volley of shots and\nLedogar’s deployment of the police dog while Childress lay\non the ground. Following a trial, the jury returned a verdict\nin Defendants’ favor on Plaintiffs’ remaining Fourth\nAmendment claims.\n As for Plaintiffs’ negligence claim, the district court\ndetermined that Nevada law did not allow Plaintiffs to assert\na negligence theory of liability based on the officers’\nintentional use of force. Observing that Nevada law is\nunclear on this question, the district court agreed with the\nSupreme Court of Arizona, which held that “plaintiffs\ncannot assert a negligence claim based solely on an officer’s\nintentional use of physical force.” Ryan v. Napier, 425 P.3d\n230, 233 (Ariz. 2018). The district court accordingly\nexcluded the officers’ shootings from the jury’s negligence\nevaluation and instructed the jury to evaluate only the\nofficers’ “alleged failure to properly and adequately assess\nthe need to use force against Childress after the first volley\nof shots until the time the police dog was taken off of\nChildress.” The jury determined that Bohanon and Walford\nwere 25% negligent and Childress was 75% negligent. The\njury awarded Plaintiffs $150,000 in damages, but under\n\f K.C. V. LVMPD 7\n\n\nNevada’s modified comparative fault regime, see Nev. Rev.\nStat. § 41.141, Plaintiffs’ award was reduced to $0.\n Plaintiffs timely appealed to our court. We affirm in a\nconcurrently filed memorandum disposition the district\ncourt’s grant of summary judgment to Defendants on the\nFourth Amendment excessive force claim based on the first\nvolley of shots and Fourteenth Amendment interference with\nfamilial relationship claim. Plaintiffs’ negligence claim,\nhowever, raises unsettled questions of state law on which we\nrequest guidance.\n II.\n Nevada law permits certification of a state law question\nfrom a federal court when there are “questions of law of this\nstate which may be determinative of the cause then pending\nin the certifying court and as to which it appears to the\ncertifying court there is no controlling precedent in the\ndecisions of the Supreme Court or Court of Appeals of this\nstate.” Nev. R. App. P. 5(a).\n No controlling precedent from the Nevada appellate\ncourts resolves these two questions. Defendants maintain\nthat a negligence claim cannot be based on an intentional use\nof force because, as a matter of tort principles, negligent\nconduct is separate from intentional conduct. Plaintiffs point\nto recent decisions by the Supreme Court of Nevada on\nofficers’ intentional uses of force that suggest otherwise.\nNone of those authorities, however, resolve the two\nquestions we certify.\n Some precedent suggests that negligence cannot be\nbased on an intentional act, as Defendants argue. In Rocky\nMountain Produce Trucking Company v. Johnson, 369 P.2d\n198 (Nev. 1962), the Supreme Court of Nevada explained\n\f8 K.C. V. LVMPD\n\n\nthat, as a general matter, negligence is mutually exclusive\nwith intentional tort. Id. at 201–02. The Court held that\n“wanton misconduct did not exist as a matter of law” in a\ncollision between two drivers. Id. at 203. The Court\ndifferentiated “wanton misconduct” from “negligent” and\n“intentional” conduct by defining all three terms to show the\ndefendant driver’s conduct was only “negligent” but not\n“wanton.” Id. at 201–02. In its discussion, the Court\nexplained:\n\n Negligence is an unintentional tort . . . . A\n negligent person has no desire to cause the\n harm that results from his carelessness. And\n he must be distinguished from a person guilty\n of willful misconduct, such as assault and\n battery, who intends to cause harm.\n Willfulness and negligence are contradictory\n terms. If conduct is negligent, it is not\n willful; if it is willful, it is not negligent.\n\nId. (quotations and citations omitted).\n This principle finds support in persuasive tort\nauthorities. See Restatement (Second) of Torts § 282 cmt. d\n(A.L.I. 1965) (noting that negligence “excludes conduct\nwhich creates liability because of the actor’s intention to\ninvade a legally protected interest”); Restatement (Third) of\nTorts: Physical and Emotional Harm § 1 cmt. d (A.L.I. 2010)\n(“In a negligence case the defendant does not desire to cause\nharm . . . .”).\n Still, the general principle set forth in Rocky Mountain\ndoes not establish that negligence claims cannot be based on\na police officer’s intentional use of force. Rocky Mountain\ndid not involve an officer’s use of force, nor did it address\n\f K.C. V. LVMPD 9\n\n\nplaintiffs who assert concurrent Fourth Amendment\nexcessive force and state law negligence claims. Moreover,\nthe Supreme Court of Nevada has never applied Rocky\nMountain’s reasoning to hold that negligence cannot be\nbased on the same set of facts that can support an intentional\ntort; it has instead applied that principle to hold that\nnegligent conduct is not intentional conduct. See, e.g.,\nTahoe Vill. Homeowners Ass’n v. Douglas County, 799 P.2d\n556, 558 (Nev. 1990) (per curiam) (“Willful misconduct\nrequires some degree of intent to do harm, yet Tahoe’s\ncomplaint contains no allegations regarding intent.”); Lee v.\nLamar Cent. Outdoor, LLC, 130 Nev. 1208, 2014 WL\n1319180, at 3 (Nev. 2014) (unpublished disposition)\n(finding no willfulness where plaintiff alleged only\nnegligence and failed to offer evidence of willfulness).\n Other recent Supreme Court of Nevada decisions suggest\nthat a police officer’s intentional use of force can give rise to\nnegligence liability, as Plaintiffs argue. In Estate of Brenes\nv. Las Vegas Metropolitan Police Department, the Court\ndenied the defendants’ claim of discretionary immunity and\nreversed a grant of summary judgment for officers on battery\nand negligence claims where evidence was presented before\nthe district court that the “use of lethal force was objectively\nunreasonable” under the Fourth Amendment. 468 P.3d 368,\n2020 WL 4284335, at 1 & n.2 (Nev. 2020) (unpublished\ndisposition). Brenes suggests that the Supreme Court of\nNevada would hold that a negligence claim can be based on\nan officer’s intentional use of force. As an unpublished\ndisposition, however, Brenes is not controlling. See Nev. R.\nApp. P. 36(c)(2).\n In Paulos v. FCH1, LLC, the state trial court “concluded\nthat issue preclusion applied to [a] negligence claim” against\na police officer with respect to a use of force incident\n\f10 K.C. V. LVMPD\n\n\nbecause a federal district court “had determined that [the\nofficer] acted reasonably under the Fourth Amendment and\nthe issue of reasonableness under the Fourth Amendment\nwas identical to that under Nevada negligence law.” 456\nP.3d 589, 593 (Nev. 2020) (en banc). The Supreme Court of\nNevada reversed and held that the judgment of the federal\ndistrict court was not final and preclusive on the issue of\nreasonableness because the Ninth Circuit had affirmed on a\ndifferent prong of the qualified immunity analysis. Id. at\n595. In doing so, the Court noted that recent caselaw has\n“called into question” whether “reasonableness under the\nFourth Amendment is identical to reasonableness under\nNevada’s negligence law,” but the Court declined to resolve\nthat issue. Id. at 595 n.2.\n Like the parties, federal district courts are divided on the\nquestions we certify today. These courts have\nacknowledged that “[t]he Supreme Court of Nevada has not\nexpressly addressed the issue of whether a police officer can\nbe liable under a negligence theory based on the same facts\nas battery, excessive force, or other intentional tort claims.”\nDeCastro v. Las Vegas Metro. Police Dep’t, No. 2:23-cv-\n00580-APG-EJY, 2024 WL 4189939, at 22 (D. Nev. Sep.\n12, 2024). When confronted with this issue, however,\ndistrict courts have resolved it differently.\n Some district courts predict that “the Supreme Court of\nNevada would agree with the Supreme Court of Arizona that\n‘negligence and intent are mutually exclusive grounds for\nliability,’ and there is no cognizable claim for the ‘negligent\nuse of intentionally inflicted force.’” Id. (quoting Ryan, 425\nP.3d at 236); see also, e.g., Wells v. City of Las Vegas, No.\n2:21-CV-1346 JCM (EJY), 2024 WL 2028007, at 16 (D.\nNev. May 7, 2024) (predicting that the Supreme Court of\nNevada would hold that “liability under a negligence theory\n\f K.C. V. LVMPD 11\n\n\ncannot be based on an intentional use of force”); Sommer v.\nLas Vegas Metro. Police Dep’t, No. 2:23-cv-01682-GMN-\nNJK, 2025 WL 1180174, at 13 n.2 (D. Nev. Apr. 22, 2025)\n(“[T]o the extent Plaintiff’s negligence claim is based on an\nintentional use of force, it cannot form the basis of her\nnegligence claim.”).\n Other district courts have rejected such a prediction. See,\ne.g., Llera v. Las Vegas Metro. Police Dep’t, No. 2:20-cv-\n01589-RFB-BNW, 2023 WL 6393092, at 16 (D. Nev. Sep.\n30, 2023) (noting the absence of “binding or persuasive\nauthority that the negligence and battery causes of action are\nmutually exclusive and cannot be alleged together as a\nmatter of law”); Murnane v. Las Vegas Metro. Police Dep’t,\nNo. 2:13-cv-01088-MMD-PAL, 2016 WL 10806738, at *11\n(D. Nev. Mar. 31, 2016) (concluding the same because the\nplaintiffs’ “negligence claim sweeps more broadly” than\nintentional tort claims).\n In the absence of controlling precedent, the parties turn\nto out-of-state authorities. Plaintiffs invoke California law,\nwhich permits plaintiffs to assert a negligence claim based\non an officer’s intentional use of force. See Hayes v. County\nof San Diego, 305 P.3d 252, 262 (Cal. 2013) (holding that\nthe “reasonable care” standard of negligence and the Fourth\nAmendment “reasonableness” standard are distinct).\nDefendants, like the district court here, invoke Arizona law,\nwhich prohibits plaintiffs from “assert[ing] a negligence\nclaim based solely on an officer’s intentional use of physical\nforce.” Ryan, 425 P.3d at 233.\n The answers to the questions we certify may determine\nthe outcome of this case. As discussed, the jury determined\nthat Defendants were negligent, but only based on the\nofficers’ “failure to properly and adequately assess the need\n\f12 K.C. V. LVMPD\n\n\nto use force” prior to firing a second volley of shots. Had\nthe jury been allowed to consider whether Defendants were\nnegligent in firing a second volley of shots as Childress lay\non the ground, then the jury’s negligence verdict and\napportionment of fault could have materially differed. As to\nour second certified question, if the standard for\n“reasonableness” under the Fourth Amendment is identical\nto the standard of “reasonable care” under Nevada\nnegligence law, then the district court’s grant of summary\njudgment and the jury’s verdict for Defendants on the Fourth\nAmendment claims would foreclose Plaintiffs’ negligent use\nof force claim.\n We therefore certify the two questions set forth above to\nthe Supreme Court of Nevada. “We invoke the certification\nprocess only after careful consideration and do not do so\nlightly.” Kremen v. Cohen, 325 F.3d 1035, 1037 (9th Cir.\n2003). In deciding whether to certify a question of state law,\nwe consider whether the question involves “important public\npolicy ramifications,” whether it is “new, substantial, and of\nbroad application[,]” “the state court’s caseload[,]” and “the\nspirit of comity and federalism.” Murray v. BEJ Mins., LLC,\n924 F.3d 1070, 1072 (9th Cir. 2019) (quotations omitted).\nWe recognize that the Court has a substantial caseload, and\nwe submit these questions because of their importance to\nnegligence claims that frequently arise in federal courts, as\nwell as their potential to advance uniformity among federal\ncourts.\n III.\n Pursuant to Nevada Rule of Appellate Procedure 5(c)(4),\nif our request for certification is granted, we designate\nPlaintiffs as the appellants and Defendants as the appellees\n\f K.C. V. LVMPD 13\n\n\nin the Supreme Court of Nevada. Pursuant to Rule 5(c)(5),\nthe names and addresses of counsel for the parties are:\n\n For Plaintiffs: Dale K. Galipo and Hang D.\n Le, Law Offices of Dale K. Galipo, 21800\n Burbank Boulevard, Suite 310, Woodland\n Hills, California 91367.\n For Plaintiffs: Peter Goldstein, Law Office\n of Peter Goldstein, 10161 Park Run Drive,\n Suite 150, Las Vegas, Nevada 89145.\n For Defendants: Craig R. Anderson, Marquis\n Aurbach Coffing, 10001 Park Run Drive, Las\n Vegas, Nevada 89145.\n\n The Clerk of this Court is hereby directed to transmit to\nthe Supreme Court of Nevada, under official seal of this\ncourt, a copy of this order and request for certification and\nall relevant briefs and excerpts of record. Submission of this\ncase is withdrawn, and the case will be submitted following\nreceipt of the Supreme Court of Nevada’s opinion on the\ncertified question or notification that it declines to answer\nthe certified question. The Clerk is directed to\nadministratively close this docket pending further order.\nThe parties shall notify the Clerk of this court within one\nweek after the Supreme Court of Nevada accepts or rejects\ncertification. In the event the Supreme Court of Nevada\ngrants certification, the parties shall notify the Clerk within\none week after the Court renders its decision.\n It is so ORDERED.\n /s/ Gabriel P. Sanchez\n Gabriel P. Sanchez, Circuit Judge, Presiding", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11234853/", "author_raw": "Andrew P. Gordon, Chief District Judge, Presiding"}]}	MARK J BENNETT	GABRIEL P SANCHEZ	HOLLY A THOMAS	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10768268/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,768,269	Daisey Trust v. Federal Housing Finance Agency	2026-01-02	24-6433	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Mark J. Bennett, Gabriel P. Sanchez, and Holly A. Thomas, Circuit Judges.", "parties": "", "opinions": [{"author": "H.A. THOMAS, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\nDAISEY TRUST, by and through its No. 24-6433\ntrustee Eddie Haddad; CAPE\n D.C. No.\nJASMINE CT. TRUST, by and\n 2:23-cv-00978-\nthrough its trustee, Eddie Haddad;\n APG-EJY\nSATICOY BAY LLC, SERIES\n10007 LIBERTY VIEW,\n\n Plaintiffs - Appellants, OPINION\n\n v.\n\nFEDERAL HOUSING FINANCE\nAGENCY; WILLIAM J. PULTE, * in\nhis official capacity as the Director of\nthe Federal Housing Finance Agency,\n\n Defendants - Appellees.\n\n Appeal from the United States District Court\n for the District of Nevada\n Andrew P. Gordon, Chief District Judge, Presiding\n\n Argued and Submitted October 8, 2025\n Las Vegas, Nevada\n\n\n We have substituted William J. Pulte as Defendant-Appellee pursuant\nto Federal Rule of Appellate Procedure 43(c).\n\f2 DAISEY TRUST V. FHFA\n\n\n Filed January 2, 2026\n\nBefore: Mark J. Bennett, Gabriel P. Sanchez, and Holly A.\n Thomas, Circuit Judges.\n\n Opinion by Judge H.A. Thomas\n\n\n SUMMARY \n\n\n Federal Housing Finance Agency\n\n The panel affirmed the district court’s dismissal with\nprejudice of plaintiffs’ amended complaint alleging that the\nfunding mechanism for the Federal Housing Finance\nAgency (“FHFA”), as established by the Housing and\nEconomic Recovery Act of 2008 (“Recovery Act”), violates\nthe Appropriations Clause and the nondelegation doctrine.\n Plaintiffs purchased properties in Nevada that were\nencumbered by a deed of trust owned by the Federal\nNational Mortgage Association (“Fannie Mae”) or the\nFederal Home Loan Mortgage Corporation (“Freddie\nMac”). They sought to prevent the foreclosure of their\nproperties.\n Congress enacted the Recovery Act in response to fears\nthat Fannie Mae and Freddie Mac’s troubling financial\ncondition would imperil the national economy. The\nRecovery Act created the FHFA, an independent agency\n\n\n\n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\f DAISEY TRUST V. FHFA 3\n\n\ntasked with regulating Fannie Mae and Freddie Mac. The\nFHFA is not funded through the ordinary appropriations\nprocess, but rather from the assessments it imposes on the\nentities it regulates.\n The panel rejected the FHFA’s argument that plaintiffs\nlacked Article III standing to pursue their federal\nclaims. Plaintiffs plausibly alleged an injury in fact when\nthe FHFA, acting through Fannie Mae or Freddie Mac,\nforeclosed upon their properties. Plaintiffs also plausibly\nalleged that their injury is traceable to the FHFA’s\nconduct. Finally, plaintiffs’ alleged injury is judicially\nredressable.\n Rejecting plaintiffs’ Appropriations Clause challenge,\nthe panel held that the funding mechanism for the FHFA, as\nestablished by the Recovery Act, is consistent with the rule\narticulated in Consumer Financial Protection Bureau v.\nCommunity Financial Services Association of America,\nLimited, 601 U.S. 416 (2024). The funding mechanism\nidentifies both a source of funds—the annual assessments\nthe FHFA imposed upon Fannie Mae and Freddie Mac—and\na purpose for the expenditure of those funds—reasonable\ncosts and expenses of the FHFA.\n The panel also held that the FHFA’s funding mechanism\ndoes not violate the nondelegation doctrine. The plain text\nof the Recovery Act contains an intelligible principle that\ngoverns the FHFA’s ability to collect assessments from the\nregulated entities.\n\f4 DAISEY TRUST V. FHFA\n\n\n COUNSEL\n\nJordan T. Smith (argued) and Brianna Smith, Pisanelli Bice\nPLLC, Las Vegas, Nevada, for Plaintiffs-Appellants.\nMichael A.F. Johnson (argued) and Dirk C. Phillips, Arnold\n& Porter Kaye Scholer LLP, Washington, D.C.; Leslie B.\nHart, Fennemore Craig PC, Reno, Nevada; for Defendants-\nAppellees.\n\n\n\n OPINION\n\nH.A. THOMAS, Circuit Judge:\n\n Plaintiffs Daisey Trust, Cape Jasmine Court Trust\n(“Cape Jasmine”), and Saticoy Bay LLC, Series 10007\nLiberty View (“Saticoy Bay”) sued the Federal Housing\nFinance Agency (“FHFA”) and its Director, alleging that the\nFHFA’s funding mechanism, as established by the Housing\nand Economic Recovery Act of 2008 (“Recovery Act”),\nviolates the Appropriations Clause and the nondelegation\ndoctrine. The district court dismissed Plaintiffs’ amended\ncomplaint with prejudice and without leave to amend, ruling\nthat the FHFA’s funding mechanism is constitutional. We\nagree with the district court and affirm.\n I.\n A.\n In 2012, Daisey Trust purchased a property located on\nNewburg Avenue in North Las Vegas, Nevada. The same\nyear, Cape Jasmine purchased a property located on Desert\nPond Avenue in Henderson, Nevada. In 2013, Saticoy Bay\n\f DAISEY TRUST V. FHFA 5\n\n\npurchased a property located on Liberty View Way in Las\nVegas, Nevada. At the time of purchase, each of the\nproperties was encumbered by a deed of trust owned by the\nFederal National Mortgage Association (“Fannie Mae”) or\nthe Federal Home Loan Mortgage Corporation (“Freddie\nMac”).\n Daisey Trust, Cape Jasmine, and Saticoy Bay each sued\nFannie Mae’s or Freddie Mac’s loan servicer in state court,\nseeking to extinguish the respective deed of trust and to quiet\ntitle. Each Plaintiff ultimately lost. The Newburg Avenue,\nDesert Pond Avenue, and Liberty View Way properties\ncontinued to be encumbered by Fannie Mae’s or Freddie\nMac’s respective liens until deed-of-trust foreclosure\nproceedings were held between 2022 and 2024.\n B.\n We pause here for a bit of background. “Congress\ncreated the Federal National Mortgage Association (Fannie\nMae) in 1938 and the Federal Home Loan Mortgage\nCorporation (Freddie Mac) in 1970 to support the Nation’s\nhome mortgage system.” Collins v. Yellen, 594 U.S. 220,\n228 (2021). Fannie Mae and Freddie Mac “operate under\ncongressional charters as for-profit corporations owned by\nprivate shareholders.” Id. “Their primary business is\npurchasing mortgages, pooling them into mortgage-backed\nsecurities, and selling them to investors.” Id.\n In 2008, during the nation’s housing crisis, Congress\nenacted the Recovery Act in response to fears that Fannie\nMae and Freddie Mac’s “troubling financial condition would\nimperil the national economy.” Id. at 226; see also Housing\nand Economic Recovery Act of 2008, Pub. L. No. 110-289,\n122 Stat. 2654; 12 U.S.C. § 4501 et seq. The Recovery Act\n“created the [FHFA], ‘an independent agency’ tasked with\n\f6 DAISEY TRUST V. FHFA\n\n\nregulating the companies and, if necessary, stepping in as\ntheir conservator or receiver.” Collins, 594 U.S. at 226–27\n(quoting 12 U.S.C. §§ 4511, 4617). “The Agency is tasked\nwith supervising nearly every aspect of the companies’\nmanagement and operations.” Id. at 230. Pursuant to these\npowers, “[i]n September 2008, . . . [the] FHFA’s Director\nplaced Fannie Mae and Freddie Mac into conservatorship,”\nwhere they remain today. Fed. Home Loan Mortg. Corp. v.\nSFR Invs. Pool 1, LLC, 893 F.3d 1136, 1143 (9th Cir. 2018).\nBy placing Fannie Mae and Freddie Mac into\nconservatorship, the FHFA succeeded their “rights, titles,\npowers, and privileges . . . with respect to [their] assets.” 12\nU.S.C. § 4617(b)(2)(A)(i).\n “[T]he FHFA is not funded through the ordinary\nappropriations process. Rather, the Agency’s budget comes\nfrom the assessments it imposes on the entities it regulates\n. . . .” Collins, 594 U.S. at 231. Pursuant to the Recovery Act,\n“[t]he [FHFA’s] Director shall establish and collect from the\nregulated entities annual assessments in an amount not\nexceeding the amount sufficient to provide for reasonable\ncosts (including administrative costs) and expenses of the\nAgency.” 12 U.S.C. § 4516(a). These assessments “shall not\nexceed the amounts sufficient to provide for the costs and\nexpenses” of the four categories of expenses outlined in\nsubsection (a), id. § 4516(b)(2), which include expenses of\nexaminations, expenses of obtaining reviews and credit\nassessments, and amounts necessary to maintain a working\ncapital fund, id. § 4516(a)(1)–(3). “[T]he Director shall\nremit to each regulated entity any amount of assessment\ncollected from such regulated entity that . . . is in excess of\nthe amount the Director deems necessary to maintain a\nworking capital fund.” Id. § 4516(e).\n\f DAISEY TRUST V. FHFA 7\n\n\n The Recovery Act also imposes reporting and auditing\nrequirements on the FHFA. See id. § 4516(g)–(h). The\nFHFA’s Director must provide to the Office of Management\nand Budget “financial operating plans and forecasts” and\n“quarterly reports of the Agency’s financial condition and\nresults of operations,” id. § 4516(g)(1), and to the\nComptroller General “an assertion as to the effectiveness of\nthe internal controls that apply to financial reporting by the\nAgency,” id. § 4516(g)(4). The Director must also prepare\nan annual statement of “assets and liabilities and surplus or\ndeficit;” “income and expenses;” and “sources and\napplication of funds.” Id. § 4516(g)(2). The Comptroller\nGeneral “shall annually audit the financial transactions of the\nAgency” and “submit to the Congress a report of each annual\naudit.” Id. § 4516(h)(1)–(2).\n C.\n Facing the prospect of Fannie Mae’s imminent\nforeclosure upon the Newburg Avenue property, in June\n2023, Daisey Trust sued the FHFA and its Director and filed\na motion for a temporary restraining order and a preliminary\ninjunction preventing the foreclosure. Daisey Trust also filed\nan emergency motion to stay foreclosure in September 2023.\nThe district court denied Daisey Trust’s motions.\n In November 2023, Cape Jasmine and Saticoy Bay were\nadded as plaintiffs to Daisey Trust’s lawsuit. That same\nmonth, Plaintiffs filed their first amended complaint on\nbehalf of a putative class, alleging violations of the\nAppropriations Clause and nondelegation doctrine, as well\nas a state law wrongful foreclosure claim. They argued that\nthe FHFA lacked authority to foreclose on their properties\nbecause the FHFA’s funding mechanism, as established by\nthe Recovery Act, violates the Appropriations Clause and\n\f8 DAISEY TRUST V. FHFA\n\n\nnondelegation doctrine. The FHFA moved to dismiss the suit\nbased on lack of standing, claim preclusion, lack of subject\nmatter jurisdiction, and failure to state a claim.\n In September 2024, the district court granted the FHFA’s\nmotion to dismiss. See Daisey Tr. v. Fed. Hous. Fin. Agency,\nNo. 2:23-CV-00978-APG-EJY, 2024 WL 4267792, at 1–\n12 (D. Nev. Sep. 20, 2024). The district court determined\nthat Plaintiffs had standing to pursue their claims against the\nFHFA, but that Plaintiffs’ claims failed on the merits. See id.\nat 4–11. As to the Appropriations Clause, the district court\ndetermined that the Recovery Act met the requirements set\nforth in the Supreme Court’s decision in Consumer\nFinancial Protection Bureau v. Community Financial\nServices Association of America, Limited, 601 U.S. 416\n(2024) (“CFSA”), because the Recovery Act identified the\nfunding source and purpose for the FHFA. See id. at 7–10.\nAs to the nondelegation doctrine, the district court\ndetermined that the FHFA’s limitation to “reasonable costs”\nin the amount of its assessments was an “intelligible\nprinciple” and rejected Plaintiffs’ argument that the\nRecovery Act grants the FHFA “standardless authority.” 1 Id.\nat 10–11. The district court also denied Plaintiffs’ motion\nfor leave to amend on the ground that amendment would be\nfutile. See id. at 11. Plaintiffs timely appealed.\n II.\n We have jurisdiction under 28 U.S.C. § 1291. “We\nreview a district court’s determination that a plaintiff has\nstanding de novo.” Am. Encore v. Fontes, 152 F.4th 1097,\n\n1\n The district court also determined that Plaintiffs’ wrongful foreclosure\nclaim under Nevada state law failed on the merits because it was\npredicated on the constitutional violations alleged in Plaintiffs’ federal\nclaims. See id. at *11. Plaintiffs do not appeal this decision.\n\f DAISEY TRUST V. FHFA 9\n\n\n1109 (9th Cir. 2025). “We review dismissals for failure to\nstate a claim under Federal Rule of Civil Procedure 12(b)(6)\nde novo and may affirm on any ground supported by the\nrecord.” Sodha v. Golubowski, 154 F.4th 1019, 1032 (9th\nCir. 2025) (quoting Hansen v. Musk, 122 F.4th 1162, 1168\n(9th Cir. 2024)). “We review the denial of leave to amend a\ncomplaint for abuse of discretion, but review de novo the\nfutility of amendment.” Schwartz v. Miller, 153 F.4th 918,\n926 (9th Cir. 2025).\n III.\n As a preliminary matter, we reject the FHFA’s argument\nthat Plaintiffs lack Article III standing to pursue their federal\nclaims. “[T]o satisfy Article III’s standing requirements, a\nplaintiff must show (1) it has suffered an ‘injury in fact’ that\nis (a) concrete and particularized and (b) actual or imminent,\nnot conjectural or hypothetical; (2) the injury is fairly\ntraceable to the challenged action of the defendant; and (3) it\nis likely, as opposed to merely speculative, that the injury\nwill be redressed by a favorable decision.” Jones v. L.A.\nCent. Plaza LLC, 74 F.4th 1053, 1057 (9th Cir. 2023)\n(alteration in original) (quoting Friends of the Earth, Inc. v.\nLaidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 180–81\n(2000)). “Where, as here, a case is at the pleading stage, the\nplaintiff must ‘clearly . . . allege facts demonstrating’ each\nelement.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016)\n(alteration in original) (quoting Warth v. Seldin, 422 U.S.\n490, 518 (1975)).\n Plaintiffs have plausibly alleged an injury in fact. The\nFHFA, acting through one of its conservatees, Fannie Mae\nor Freddie Mac, has foreclosed upon their properties. See,\ne.g., FDA v. All. for Hippocratic Med., 602 U.S. 367, 381\n(2024) (noting that an “injury in fact can be . . . a monetary\n\f10 DAISEY TRUST V. FHFA\n\n\ninjury” or “an injury to one’s property”); Biden v. Nebraska,\n600 U.S. 477, 489 (2023) (explaining that “the plaintiff must\nhave suffered an injury in fact—a concrete and imminent\nharm to a legally protected interest, like property or\nmoney”). Such foreclosures are “concrete and\nparticularized” and “actual or imminent” invasions of\nPlaintiffs’ property interests. Spokeo, 578 U.S. at 339\n(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560\n(1992)). And, indeed, the FHFA does not meaningfully\ndispute that Plaintiffs have plausibly alleged an injury in\nfact.\n Plaintiffs have also plausibly alleged that their injury is\ntraceable to the FHFA’s conduct. The FHFA argues that\nPlaintiffs’ alleged injury is self-inflicted because Plaintiffs\ndecided “to purchase investment properties encumbered by\nfederally protected liens for pennies on the dollar and then\nnot to pay off the underlying defaulted loans while Plaintiffs\nprofited.” The FHFA claims that these actions—rather than\n“any feature of [the] FHFA’s funding mechanism”—caused\nany harm Plaintiffs experienced. The FHFA further argues\nthat Plaintiffs’ injury is not traceable to the FHFA’s actions\nbecause, “irrespective even of [the] FHFA’s continued\nexistence,” Fannie Mae, Freddie Mac, and their loan\nservicers “would proceed with foreclosures on [Plaintiffs’]\nproperties.” The FHFA notes that Fannie Mae and Freddie\nMac—not the FHFA—operate “day-to-day foreclosure\nactivity” and fund that activity through revenues collected in\ntheir own course of business.\n The Supreme Court’s decision in Collins v. Yellen\nforecloses the FHFA’s arguments. In Collins, the Supreme\nCourt made clear that “the relevant inquiry is whether the\nplaintiffs’ injury can be traced to allegedly unlawful conduct\nof the defendant, not to the provision of law that is\n\f DAISEY TRUST V. FHFA 11\n\n\nchallenged.” 594 U.S. at 243 (quotations omitted). Here,\nPlaintiffs allege that the FHFA has exercised unlawfully\ndelegated authority and expended unlawfully appropriated\nfunds to foreclose upon their properties. This allegation is\nsufficient under Collins to establish traceability.\n Finally, Plaintiffs’ alleged injury is judicially\nredressable. “If a defendant’s action causes an injury,\nenjoining the action or awarding damages for the action will\ntypically redress that injury.” All. for Hippocratic Med., 602\nU.S. at 381. Plaintiffs’ request for declaratory, injunctive,\nand compensatory relief is sufficient to meet that standard.\nSee Collins, 594 U.S. at 243.\n IV.\n A.\n We turn next to the merits of Plaintiffs’ claims,\nbeginning with their Appropriations Clause challenge. The\nAppropriations Clause provides that “[n]o Money shall be\ndrawn from the Treasury, but in Consequence of\nAppropriations made by Law.” U.S. CONST. art. I, § 9, cl. 7.\n“Under the Appropriations Clause, an appropriation is\nsimply a law that authorizes expenditures from a specified\nsource of public money for designated purposes.” CFSA, 601\nU.S. at 424.\n In CFSA, the Supreme Court considered a funding\nmechanism for the Consumer Financial Protection Bureau\n(“CFPB”) analogous to that at issue here. See id. at 421–23.\nAs with the FHFA, Congress “provide[d] the [CFPB] a\nstanding source of funding outside the ordinary annual\nappropriations process.” Id. at 422. Specifically, “Congress\nauthorized the Bureau to draw from the Federal Reserve\nSystem the amount its Director deems ‘reasonably necessary\n\f12 DAISEY TRUST V. FHFA\n\n\nto carry out’ the Bureau’s duties, subject only to an inflation-\nadjusted cap.” Id. at 421 (quoting 12 U.S.C. § 5497(a)(1) and\nalso citing § 5497(a)(2)). The plaintiffs in CFSA argued that\nthis statute “usurp[ed] Congress’s role in the appropriation\nof federal funds” by allowing the CFPB to take “federal\nmoney without an appropriations act.” Id. at 424. They also\nasserted that the statute “allow[ed] the agency to indefinitely\nchoose its own level of annual funding, subject only to an\nillusory cap.” Id. at 426.\n The Supreme Court rejected the plaintiffs’ arguments.\nThe Court held that “[b]ased on the Constitution’s text, the\nhistory against which that text was enacted, and\ncongressional practice immediately following ratification,\n. . . appropriations need only identify a source of public\nfunds and authorize the expenditure of those funds for\ndesignated purposes to satisfy the Appropriations Clause.”\nId. The Court explained that: (1) “At the time the\nConstitution was ratified, . . . at a minimum, appropriations\nwere understood as a legislative means of authorizing\nexpenditure from a source of public funds for designated\npurposes,” id. at 427; (2) “the origins of the Appropriations\nClause confirm that appropriations needed to designate\nparticular revenues for identified purposes,” id. at 431; and\n(3) early appropriations post-ratification “displayed\nsignificant variety in their structure” but “adhered to the\nminimum requirements of an identifiable source of public\nfunds and purpose,” id. at 434. The Court thus determined\nthat the CFPB’s “funding statute contains the requisite\nfeatures of a congressional appropriation” because it\n“authorizes the Bureau to draw public funds from a\nparticular source” and “specifies the objects for which the\nBureau can use those funds.” Id. at 435.\n\f DAISEY TRUST V. FHFA 13\n\n\n The funding mechanism for the FHFA, as established by\nthe Recovery Act, is entirely consistent with the rule\narticulated in CFSA. It identifies both a source of funds—the\nannual assessments the FHFA imposes upon Fannie Mae and\nFreddie Mac—and a purpose for the expenditure of those\nfunds—“reasonable costs (including administrative costs)\nand expenses of the Agency.” 12 U.S.C. § 4516(a).\n Plaintiffs nevertheless argue that the FHFA’s funding\nmechanism violates the Appropriations Clause because the\nRecovery Act sets “no cap or ascertainable limit on the\namount [the] FHFA can extract and spend from the regulated\nentities.” They assert that an appropriation requires a certain\nsum of money, and that the Supreme Court in CFSA\n“stressed the importance of the statutory cap.” Plaintiffs are\nincorrect.\n It is true that the Court noted the existence of a funding\ncap when describing the funding mechanisms for the CFPB\nand the Post Office. See 601 U.S. at 434–35. It is also true\nthat—in rejecting the argument that the CFPB, “rather than\nCongress, decides the amount of annual funding that it draws\nfrom the Federal Reserve System”—the Court stated that\n“[t]he only sense in which the Bureau decides its own\nfunding . . . is by exercising its discretion to draw less than\nthe statutory cap.” Id. at 436. The Court also observed that\n“‘sums not exceeding’ appropriations . . . were\ncommonplace immediately after the founding.” Id.\n But as the Supreme Court emphasized, the\nAppropriations Clause grants Congress a “wide range of\ndiscretion” to devise appropriations with “significant variety\nin their structure.” Id. at 431, 434. The Court discussed two\nfounding-era appropriations—the Customs Service and the\nPost Office—to illustrate those “flexible approaches to\n\f14 DAISEY TRUST V. FHFA\n\n\nappropriations.” Id. at 433. Congress, for example, “opted\nfor a fee-based model” to fund the Customs Service, in\nwhich customs collectors were compensated from the fees\nthey collected and the duties they raised within their districts.\nId. Congress “adopted a similarly open-ended funding\nscheme for the Post Office,” in which the Postmaster\nGeneral funded the Post Office through the Office’s own\nrevenues and compensated deputy postmasters “subject to an\nupper limit.” Id. at 434.\n The Court’s discussion in CFSA makes clear that, to\nsatisfy the Appropriations Clause, Congress need only\nspecify a source and purpose for the expenditure of funds.\nThe Court’s historical analysis supports that conclusion:\nwhile “[e]arly appropriations displayed significant variety in\ntheir structure[,] [e]ach . . . adhered to the minimum\nrequirements of an identifiable source of public funds and\npurpose.” Id. The Court’s ultimate holding that the Bureau’s\nfunding statute satisfied the Appropriations Clause because\nit “authorizes the Bureau to draw public funds from a\nparticular source” and “specifies the objects for which the\nBureau can use those funds” is also consistent with this\nconclusion. Id. at 435. As the Court explained, “[a]lthough\nthere may be other constitutional checks on Congress’\nauthority to create and fund an administrative agency,\nspecifying the source and purpose is all the control the\nAppropriations Clause requires.” Id. at 441. Nothing in the\nCourt’s decision suggests that we may expand upon these\nrequirements.\n B.\n We next consider Plaintiffs’ argument that the FHFA’s\nfunding mechanism violates the nondelegation doctrine. We\nconclude that it does not. Congress “may confer substantial\n\f DAISEY TRUST V. FHFA 15\n\n\ndiscretion on executive agencies to implement and enforce\nthe laws.” Gundy v. United States, 588 U.S. 128, 135 (2019)\n(plurality opinion). But the nondelegation doctrine “bars\nCongress from transferring its legislative power to another\nbranch of Government.” Id. at 132. “The constitutional\nquestion is whether Congress has supplied an intelligible\nprinciple to guide the delegee’s use of discretion.” Id. at 135.\n The plain text of the Recovery Act contains an\nintelligible principle that governs the FHFA’s ability to\ncollect assessments from the regulated entities: an “amount\nsufficient to provide for reasonable costs.” 12 U.S.C.\n§ 4516(a). Although Plaintiffs argue that the Recovery Act\nlacks any intelligible principle to justify the delegation of\nauthority to the FHFA, the Supreme Court has repeatedly\nupheld similar statutes with “broad terms” against\nconstitutional challenges. United States v. Pheasant, 129\nF.4th 576, 580 (9th Cir. 2025); see also, e.g., Sunshine\nAnthracite Coal Co. v. Adkins, 310 U.S. 381, 398–99 (1940)\n(“just and reasonable” rates); Nat’l Broad. Co. v. United\nStates, 319 U.S. 190, 216–17 (1943) (“public interest,\nconvenience, or necessity”); Yakus v. United States, 321\nU.S. 414, 423, 427 (1944) (“fair and equitable” prices);\nWhitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472–76\n(2001) (“requisite to protect the public health”). And we\nhave described “[t]he requirement that Congress set out an\n‘intelligible principle’ to constrain executive discretion” as\n“‘an exceedingly modest limitation.’” Pheasant, 129 F.4th\nat 579 (quoting United States v. Melgar-Diaz, 2 F.4th 1263,\n1266 (9th Cir. 2021)).\n We also reject Plaintiffs’ argument that the FHFA’s\n“Director has unfettered discretion to collect whatever\namounts she thinks are needed.” We recently considered—\nand rejected—a similar claim in Pheasant, where we\n\f16 DAISEY TRUST V. FHFA\n\n\nreviewed a nondelegation challenge to Section 303(a) of the\nFederal Land Policy and Management Act of 1976\n(“FLPMA”). See id. Section 303(a) empowers the Secretary\nof the Interior to “issue regulations necessary to implement\nthe provisions of [the FLPMA] with respect to the\nmanagement, use, and protection of the public lands,\nincluding the property located thereon.” Id. (alteration in\noriginal) (quoting 43 U.S.C. § 1733(a)). The plaintiffs in\nPheasant argued that “something more than an intelligible\nprinciple is required because [the Bureau of Land\nManagement’s] mission provides no inherent limitation on\nthe scope of its regulations.” Id. at 582. But we held that\nSection 303(a) “easily satisfies the ‘intelligible principle’\ntest” because the statute specifies the Secretary’s\nresponsibilities and does not permit “the Secretary to issue\nany regulation he wishes with a colorable connection to the\nuse of public lands.” Id. at 580–81. The same is true of the\nRecovery Act: far from conferring upon the FHFA the\nplenary authority to take any actions it wishes, the Director\nis constrained to collecting an “amount sufficient to provide\nfor reasonable costs.” 12 U.S.C. § 4516(a).\n V.\n “Leave to amend may be denied if the proposed\namendment is futile or would be subject to dismissal.”\nHunter v. U.S. Dep’t of Educ., 115 F.4th 955, 971 (9th Cir.\n2024) (quoting Wheeler v. City of Santa Clara, 894 F.3d\n1046, 1059 (9th Cir. 2018)). Plaintiffs argue that “the\nmechanism by which [the] FHFA funds foreclosures is\nunconstitutional and thus [Plaintiffs] can state a set of facts\nentitling them to relief” should we decline to entirely reverse\nthe district court. But Plaintiffs have not stated a claim, and\nthe parties have already addressed the impact of CFSA—\nwhich controls the Appropriations Clause issue—in\n\f DAISEY TRUST V. FHFA 17\n\n\nsupplemental briefing before the district court. See Parents\nfor Priv. v. Barr, 949 F.3d 1210, 1239 (9th Cir. 2020)\n(“[B]ecause Plaintiffs have not shown that any new factual\nallegations could alter these conclusions based on settled\nprecedent, amendment would be futile.”). Our review today\nonly “confirms that the record clearly dictated the futility of\namendment and the district court’s decision.” Laws. for Fair\nReciprocal Admission v. United States, 141 F.4th 1056, 1074\n(9th Cir. 2025) (quotations and alterations omitted).\n VI.\n For the reasons discussed above, Plaintiffs have failed to\nstate a claim upon which relief may be granted. As we have\nalso explained, amendment would be futile. The district\ncourt’s judgment is therefore AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11234854/", "author_raw": "H.A. THOMAS, Circuit Judge:"}]}	MARK J BENNETT	GABRIEL P SANCHEZ	HOLLY A THOMAS	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10768269/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,768,922	Walker Specialty Constr., Inc. v. Bd. of Tr. of the Constr. Indus. and Laborers Joint Pension Trust	2026-01-05	24-1560	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Johnnie B. Rawlinson, Eric D. Miller, and Roopali H. Desai, Circuit Judges.", "parties": "", "opinions": [{"author": "DESAI, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\nWALKER SPECIALTY No. 24-1560\nCONSTRUCTION, INC.,\n D.C. No.\n 2:23-cv-00281-\n Plaintiff - Appellee,\n APG-MDC\n v.\n\nBOARD OF TRUSTEES OF THE OPINION\nCONSTRUCTION INDUSTRY\nAND LABORERS JOINT PENSION\nTRUST FOR SOUTHERN\nNEVADA; THE CONSTRUCTION\nINDUSTRY AND LABORERS\nPENSION TRUST FOR\nSOUTHERN NEVADA,\n\n Defendants - Appellants.\n\n Appeal from the United States District Court\n for the District of Nevada\n Andrew P. Gordon, District Judge, Presiding\n\n Argued and Submitted March 5, 2025\n Las Vegas, Nevada\n\n Filed January 5, 2026\n\f2 WALKER SPECIALTY CONSTR., INC. V. BOARD OF TRUSTEES\n\n\n\n\nBefore: Johnnie B. Rawlinson, Eric D. Miller, and Roopali\n H. Desai, Circuit Judges.\n\n Opinion by Judge Desai\n\n\n SUMMARY \n\n\n Multiemployer Pension Plan Amendments Act\n\n The panel affirmed the district court’s grant of summary\njudgment in favor of Walker Specialty Construction, Inc., in\nWalker’s action against the Board of Trustees of the\nConstruction Industry and Laborers Joint Pension Trust,\ncontesting withdrawal liability under the Multiemployer\nPension Plan Amendments Act, an amendment to the\nEmployee Retirement Income Security Act that imposes\nliability on employers that withdraw from multiemployer\npension plans.\n The panel held that Walker was exempt from withdrawal\nliability under the MPPAA because its asbestos abatement\nwork qualified it for the “building and construction industry”\nexception to liability. The panel concluded that, as the\nagency tasked with enforcing the Labor Management\nRelations Act, the only other statute in which Congress had\npreviously used the term “building and construction\nindustry,” the National Labor Relations Board established a\nsettled meaning for the term to include not only the erection\nof new buildings, but also maintenance, repair, and\n\n\n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\f WALKER SPECIALTY CONSTR., INC. V. BOARD OF TRUSTEES 3\n\n\n\n\nalterations that are essential to a building or structure’s\nusability. The panel inferred that Congress’s intent to\nincorporate the NLRB’s definition into the MPPA was plain\nfrom its use of the same language in both statutes. The panel\nconcluded that, under the NLRB’s comprehensive\ndefinition, Walker’s asbestos abatement work was within the\nbuilding and construction industry, and it therefore qualified\nfor the liability exemption.\n\n\n\n COUNSEL\n\nRyan C. Curtis (argued) and David L. Sieck, Fennemore\nCraig PC, Phoenix, Arizona, for Plaintiff-Appellee.\nAdam P. Segal (argued), Christopher M. Humes, and\nWilliam D. Nobriga, Brownstein Hyatt Farber Schreck LLP,\nLas Vegas, Nevada, for Defendants-Appellants.\nAndrew J. Martone, Martone Legal LLC, Creve Coeur,\nMissouri, for Amicus Curiae the Association of General\nContractors of America.\n\f4 WALKER SPECIALTY CONSTR., INC. V. BOARD OF TRUSTEES\n\n\n\n\n OPINION\n\nDESAI, Circuit Judge:\n\n Walker Specialty Construction, Inc. (“Walker”) sued the\nBoard of Trustees of the Construction Industry and Laborers\nJoint Pension Trust (“Trust”) to contest withdrawal liability\nunder the Multiemployer Pension Plan Amendments Act\n(“MPPAA”). Walker claims that it qualifies for the “building\nand construction industry” exception and is thus exempt\nfrom liability. The district court granted summary judgment\nin favor of Walker, and the Trust appealed. We hold that\nWalker’s asbestos abatement work is performed in the\n“building and construction industry” under the MPPAA, and\nthus we affirm.\n BACKGROUND\n The MPPAA, which amended the Employee Retirement\nIncome Security Act (“ERISA”), imposes liability on\nemployers that withdraw from multiemployer pension plans.\n29 U.S.C. § 1381(a). Employers can avoid withdrawal\nliability if they qualify for an exception available to\nemployers operating in the “building and construction\nindustry.” 29 U.S.C. § 1383(b). But the MPPAA does not\ndefine the term “building and construction industry.” See id.\nTo resolve this appeal, we must determine the meaning of\n“building and construction industry” under the MPPAA and\ndecide whether Walker’s employees worked in the industry.\n Walker’s employees performed asbestos abatement and\ndemolition work in southern Nevada. Asbestos abatement\ninvolves the remediation of building materials containing\nasbestos, such as insulation, roofing, flooring, walls, cement\npiping, and fireproofing materials. Remediation requires\n\f WALKER SPECIALTY CONSTR., INC. V. BOARD OF TRUSTEES 5\n\n\n\n\nremoving asbestos-containing materials or covering them\nwith an impermeable coating like polyethylene to prevent\nthe release of asbestos fibers. To remove materials with\nasbestos, Walker’s employees scrape or grind them off,\nbreak them down using chemical solvents, or demolish them.\nRemoval of asbestos-containing materials, especially\ndemolition, can facilitate the refurbishment and renovation\nof existing buildings and the construction of new buildings.\n The Trust administers a multiemployer pension benefit\nplan that primarily covers “building and construction\nindustry” employees in southern Nevada. Walker\ncontributed to the Trust’s plan for its employees until 2019,\nwhen Walker stopped operating in the state and ceased\ncontributing to the plan.\n The Trust sent Walker a letter in 2021 claiming that\nWalker owed $2,837,953 in withdrawal liability based on its\n2019 withdrawal. Walker requested review of the Trust’s\nclaim, arguing that it is exempt from withdrawal liability\nunder the MPPAA’s “building and construction industry”\nexception. While review was pending, Walker made\nquarterly payments on the disputed liability, as required\nunder ERISA. The Trust reaffirmed its assessment of\nwithdrawal liability, stating that building and construction\ninvolves “forming, making or building a structure,” and\nasbestos abatement does not qualify because it involves\n“tearing down structures rather than building or making\nthem.”\n Walker initiated arbitration, and both parties moved for\nsummary judgment on Walker’s claim for relief under the\nexception. The arbitrator granted judgment in favor of the\nTrust, holding that “work in the construction industry” is\n“the provision of labor whereby materials and constituent\n\f6 WALKER SPECIALTY CONSTR., INC. V. BOARD OF TRUSTEES\n\n\n\n\nparts may be combined on the building site to form, make or\nbuild a structure” and that Walker’s work “does not fit within\nthat definition.”\n Walker sued the Trust in the district court to contest\nwithdrawal liability and vacate or modify the arbitration\naward on the basis that Walker qualifies for the “building\nand construction industry” exception. Both parties again\nmoved for summary judgment. The district court rejected the\nTrust’s understanding of “building and construction\nindustry” as the “literal erecting of structures.” Rather, it\nadopted a more expansive understanding of “building and\nconstruction industry,” which includes the erection,\nmaintenance, repair, and alteration of buildings and\nstructures. The district court held that Walker’s asbestos\nabatement work qualified as work in the “building and\nconstruction industry” because it involved “alteration,\ndemolition, repair, or improvement of fixed structures in\nbuildings.” The district court granted summary judgment to\nWalker and ordered the Trust to return Walker’s partial\npayments with interest. The Trust timely appealed.\n STANDARD OF REVIEW\n “We review de novo the district court’s grant of\nsummary judgment.” Penn Cent. Corp. v. W. Conf. of\nTeamsters Pension Tr. Fund, 75 F.3d 529, 533 (9th Cir.\n1996). We also review de novo questions of law, including\nquestions of statutory interpretation. Trs. of Amalgamated\nIns. Fund v. Geltman Indus., Inc., 784 F.2d 926, 929 (9th\nCir. 1986). “Whether a withdrawal within the meaning of the\nstatute has occurred presents a mixed question of law and\nfact,” Penn Cent., 75 F.3d at 533, which we review de novo,\nCarpenters Pension Tr. Fund for N. Cal. v. Underground\nConst. Co., 31 F.3d 776, 778 (9th Cir. 1994); Resilient Floor\n\f WALKER SPECIALTY CONSTR., INC. V. BOARD OF TRUSTEES 7\n\n\n\n\nCovering Pension Tr. Fund Bd. of Trs. v. Michael’s Floor\nCovering, Inc., 801 F.3d 1079, 1088 (9th Cir. 2015).\n ANALYSIS\n When first enacted, ERISA “did not adequately protect\nmultiemployer pension plans from the adverse consequences\nthat resulted when individual employers terminated their\nparticipation in, or withdrew from, multiemployer plans.”\nResilient Floor, 801 F.3d at 1088 (cleaned up). “[A]\nsignificant number of multiemployer plans were\nexperiencing extreme financial hardship as a result of\nindividual employer withdrawals from the plans, which\nsaddled the remaining employers with increased funding\nobligations.” Id. (cleaned up).\n In 1980, Congress enacted the MPPAA to address this\nproblem. H.C. Elliott, Inc. v. Carpenters Pension Tr. Fund\nfor N. Cal., 859 F.2d 808, 810 (9th Cir. 1988). Under the\nMPPAA revisions to ERISA, when an employer withdraws\nfrom a multiemployer pension plan, it is liable for its share\nof the plan’s unfunded vested benefits. Resilient Floor, 801\nF.3d at 1089 (citing 29 U.S.C. § 1381). Generally, an\nemployer that “permanently ceases” its work in the plan’s\njurisdiction has withdrawn and owes withdrawal liability. 29\nU.S.C. § 1383(a).\n But the MPPAA contains a “building and construction\nindustry” exception to withdrawal liability. This exception\nexempts an employer from paying withdrawal liability if\n(1) substantially all the employees for whom the employer\ncontributes to the multiemployer pension plan work in the\n“building and construction industry;” (2) the plan primarily\ncovers employees in the “building and construction\nindustry;” and (3) the employer ceases work in the\n\f8 WALKER SPECIALTY CONSTR., INC. V. BOARD OF TRUSTEES\n\n\n\n\njurisdiction and does not resume such work within five\nyears. 29 U.S.C. § 1383(b).\n Congress created this exception because of “the\ntransitory nature of contracts and employment in the\nbuilding and construction industry.” Carpenters Pension Tr.\nFund, 31 F.3d at 778. “[T]he construction industry as a\nwhole does not necessarily shrink when a contributing\ncontractor leaves the industry; employees are often\ndispatched to another . . . contractor” in the area that\ncontributes to the multiemployer pension plan on their\nbehalf. H.C. Elliott, 859 F.2d at 811. Thus, “as long as the\nbase of construction projects in the area covered by the plan\nis funding the plan’s obligations, the plan is not threatened”\nwhen an individual employer withdraws. Carpenters\nPension Tr. Fund, 31 F.3d at 778.\n Here, the parties agree that the Trust’s plan primarily\ncovers employees in the “building and construction\nindustry” and that Walker ceased work in the jurisdiction\nand did not resume within five years. The parties also agree\nthat substantially all of Walker’s employees perform\nasbestos abatement. Thus, the sole issue on appeal is whether\nasbestos abatement qualifies as work in the “building and\nconstruction industry.” The Trust argues that the term is\nnarrow and only relates to the building of structures, which\ndoes not include asbestos abatement. Walker argues that the\nterm is more inclusive and includes alterations and repairs\nfor asbestos abatement.\n The MPPAA does not define “building and construction\nindustry,” and neither the Supreme Court nor this court has\ninterpreted it as used in the MPPAA. Interpreting this\nstatutory term as an issue of first impression, “we look first\nto the plain meaning of the language in question.” S & M Inv.\n\f WALKER SPECIALTY CONSTR., INC. V. BOARD OF TRUSTEES 9\n\n\n\n\nCo. v. Tahoe Reg’l Plan. Agency, 911 F.2d 324, 326 (9th Cir.\n1990). “If the term at issue has a settled meaning, we must\ninfer that the legislature meant to incorporate the established\nmeaning, unless the statute dictates otherwise.” Id. At the\ntime of the MPPAA’s enactment, Congress had used the\nterm “building and construction industry” in only one other\nstatute. As the agency tasked with enforcing that statute, the\nNational Labor Relations Board (“NLRB”) had given the\nterm a comprehensive definition. Because the NLRB\nestablished a settled meaning for the term “building and\nconstruction industry,” we must infer that Congress\nincorporated the NLRB’s definition of “building and\nconstruction industry” into the MPPAA.\n\n A. The NLRB previously defined “building and\n construction industry” to include work\n involving the erection, maintenance, repair,\n and alteration of buildings and structures.\n\n Before the MPPAA was enacted, the only statute in\nwhich Congress used the exact term “building and\nconstruction industry” was the Labor Management Relations\nAct of 1947, also known as the Taft-Hartley Act (“Taft-\nHartley”), which regulates unfair labor practices. See 29\nU.S.C. § 141. Like the MPPAA, Taft-Hartley contains an\nexception for employers in the “building and construction\nindustry.” 29 U.S.C. § 158(f). The exception allows such\nemployers to enter into prehire agreements—collective-\nbargaining agreements established prior to hiring any\nemployees—which are otherwise prohibited. Id.; Bldg. &\nConstr. Trades Council of Metro. Dist. v. Associated\nBuilders & Contractors of Mass./R.I., Inc., 507 U.S. 218,\n230 (1993).\n\f10 WALKER SPECIALTY CONSTR., INC. V. BOARD OF TRUSTEES\n\n\n\n\n The NLRB settled the meaning of the “building and\nconstruction industry” through a series of administrative\ndecisions interpreting Taft-Hartley in the 1960s. In Indio\nPaint, the NLRB surveyed contemporaneous sources—\nincluding technical publications and manuals, common\ndictionaries, and state codes and decisions—to determine\nthat the “building and construction industry” includes “the\nprovision of labor whereby materials and constituent parts\nmay be combined on the building site to form, make or build\na structure.” Carpet, Linoleum and Soft Tile Local Union No.\n1247 (Indio Paint & Rug Ctr.), 156 N.L.R.B. 951, 959\n(1966) (emphasis omitted). Moreover, “[c]onstruction\ncovers the erection, maintenance and repair . . . of immobile\nstructures and utilities . . . which become integral parts of\nstructures and are essential to their use for any general\npurpose.” Id. at 957 (emphasis omitted). The NLRB\nsimilarly noted that “construction” includes “new work,\nadditions, alterations, and repairs.” Id. at 958.\n The NLRB reaffirmed that the “building and\nconstruction industry” includes the alteration and demolition\nof buildings in Zidell Explorations, Inc. 175 N.L.R.B. 887\n(1969). The employer in Zidell both built and dismantled\nbuildings and structures. Id. at 889. Indeed, the relevant\nproject in that case involved dismantling a ballistic missile\ncomplex. Id. at 888. Because “[i]ts work on th[e] job was in\nall characteristics identical to that performed in the\nconstruction industry,” the NLRB held that the employer\n“was engaged in the building and construction industry\nwithin the meaning of” Taft-Hartley. Id. at 888–89.\n Thus, for over a decade before the MPPAA, the term\n“building and construction industry” had a settled meaning\nunder Taft-Hartley. The NLRB defined the term to include\nnot only the erection of new buildings, but also maintenance,\n\f WALKER SPECIALTY CONSTR., INC. V. BOARD OF TRUSTEES 11\n\n\n\n\nrepair, and alterations that are essential to the buildings’\nusability.\n The Trust urges us to consider only the “form, make, or\nbuild” part of the definition and argues that the NLRB thus\nincluded only work putting together materials to build\nsomething new. Not so. While Indio Paint stated that\nconstruction involves erecting new structures, the NLRB did\nnot exclude alterations, maintenance, and repairs from its\ndefinition. And, to the extent the NLRB excluded certain\nwork from the “building and construction industry,” it was\nreferring to off-site construction work. See Indio Paint, 156\nN.L.R.B. at 959 (“Congress did not intend to include in the\nexemption those employers who manufacture and assemble\nproducts which are subsequently installed by others at the\nconstruction site.”).\n Two of our sister circuits similarly rely on the NLRB’s\nexpansive interpretation of “building and construction\nindustry” to include repairs and alterations under the\nMPPAA exception. The Eighth Circuit has held that a\ncompany that supplied oils and asphalt materials to\ncontractors working on road construction and repair was not\nin the “building and construction industry” because it “was\nmerely a supplier” and “sold a product that another company\nrefined, and still others applied or used.” Union Asphalts &\nRoadoils, Inc. v. MO-KAN Teamsters Pension Fund, 857\nF.2d 1230, 1232, 1235 (8th Cir. 1988). But the Eighth\nCircuit explained that road repair would be construction\nwork. See id. at 1235 (holding that the company did not\nperform construction work because its employees “did not\nengage in spreading road oil or asphalt on any highway or in\nany other way engage in actual road construction or repair”).\nAnd it noted that a surveying company, too, would qualify\nfor the exception if most of the company’s work were done\n\f12 WALKER SPECIALTY CONSTR., INC. V. BOARD OF TRUSTEES\n\n\n\n\non-site at construction projects, even though surveyors are\nnot involved in the actual erection of structures. See id.\n(citing Operating Eng’rs Pension Tr. v. Beck Eng’g &\nSurveying Co., 746 F.2d 557, 562–64 (9th Cir. 1984)\n(finding that construction-related surveying work was in the\n“building and construction industry” under Taft-Hartley)).\n The Second Circuit has similarly stated that the NLRB’s\ndefinition of the “building and construction industry”\nincludes “using materials to ‘form, make or build a\nstructure’” and “structural additions and alterations.” Dycom\nIndus., Inc. v. Pension, Hospitalization & Benefit Plan of the\nElec. Indus., 98 F.4th 397, 401 (2d Cir. 2024) (per curiam)\n(quoting Indio Paint, 156 N.L.R.B. at 957–59). In Dycom,\nthe Second Circuit found that a company providing cable\nservice for buildings, which were prewired for the service,\nwas not “in the building and construction industry” because\nits work did not involve repairs or alterations. Id. The\ncompany’s employees “only had to do wiring in a small\npercentage of jobs” and “were not even required to make a\nhole in a wall for most jobs.” Id. The Second Circuit\nsuggested that, while such surface-level work does not\nqualify for the exception, alterations that affect the structure\nof buildings would qualify for the exception. Id.\n\n B. We presume that Congress incorporated the\n NLRB’s definition of “building and\n construction industry” into the MPPAA.\n\n Because the term “building and construction industry”\nhad a settled meaning prior to the MPPAA’s enactment, we\ninfer that Congress was aware of and intended to incorporate\nthis definition when it enacted the “building and construction\nindustry” exception in the MPPAA. See S & M, 911 F.2d at\n\f WALKER SPECIALTY CONSTR., INC. V. BOARD OF TRUSTEES 13\n\n\n\n\n326; see also Comm’r of Internal Revenue v. Keystone\nConsol. Indus., Inc., 508 U.S. 152, 159 (1993) (holding that\na statutory phrase “had acquired a settled judicial and\nadministrative interpretation,” of which “Congress\npresumptively was aware,” and thus “it is proper to accept\nthe already settled meaning of the phrase”); Edelman v.\nLynchburg Coll., 535 U.S. 106, 116–17 (2002) (“This\nbackground law . . . points to tacit congressional approval of\nthe EEOC’s position, Congress being presumed to have\nknown of this settled judicial treatment [of the statutory\nlanguage] when it enacted and later amended Title VII.”).\nAnd notably, Congress used the same term in both statutes\nwithout disclaiming or narrowing the NLRB’s settled\ndefinition of “building and construction industry” when\nincorporating the term in the MPPAA. Congress’s\nstraightforward adoption of this preexisting term in the\nMPPAA is evidence that it intended “building and\nconstruction industry” to have the same meaning. 1\n We thus adopt the NLRB’s interpretation of “building\nand construction industry” to determine the term’s meaning\nunder the MPPAA. Here, work in the “building and\nconstruction industry” includes the erection, maintenance,\nrepair, and alterations that are essential to a building or\nstructure’s usability.\n The Trust makes several arguments against using the\nNLRB’s comprehensive definition, all of which are\n\n1\n Because the plain language of the statute is clear, we do not look\nbeyond it to the MPPAA’s legislative history. S & M, 911 F.2d at 327.\nBut in any event, the legislative history also supports our interpretation.\nA congressional committee report about the MPPAA noted that it\nintended for the term to “be given the same meaning as has developed in\nadministration of the Taft-Hartley Act.” H.R. Rep. No. 96-869, pt. 1, at\n76 (1980).\n\f14 WALKER SPECIALTY CONSTR., INC. V. BOARD OF TRUSTEES\n\n\n\n\nunavailing. First, it argues that we should adopt the\ndefinition of “building and construction industry” used by\nother circuits, rather than the NLRB’s definition, to ensure\nnational uniformity. But our sister circuits have taken the\nsame approach as we do here and looked at the NLRB’s\ndefinition to interpret the MPPAA. See Dycom, 98 F.4th at\n400 (“Although the phrase ‘building and construction\nindustry’ is not defined in ERISA, the parties agree that we\nshould utilize the definition articulated by the [NLRB] for\nthe purposes of the Taft-Hartley Act.”); MO-KAN, 857 F.2d\nat 1234 (“[W]e look to case law under section 8(f) of the\nTaft-Hartley Act, 29 U.S.C. § 158(f), which contains the\nsame term [as the MPPAA].”).\n Second, the Trust argues that we should not use the\nNLRB’s definition of “building and construction industry”\nbecause Taft-Hartley is a different law covering a different\nsubject area than the MPPAA. But both statutes regulate the\nemployment relationship, and Congress used the same term\nin both statutes for the same reason: the uniquely transient\nnature of the building and construction industry. Much like\nthe MPPAA exception, Congress enacted the Taft-Hartley\n“building and construction industry” exception to prehire\nagreements because of “the short-term nature of\nemployment [in the construction industry] which makes\nposthire collective bargaining difficult, the contractor’s need\nfor predictable costs and a steady supply of skilled labor, and\na long-standing custom of prehire bargaining in the\nindustry.” Associated Builders, 507 U.S. at 231. Although\nTaft-Hartley addresses labor practices and the MPPAA\naddresses pension plans, it is appropriate to use the same\ndefinition of “building and construction industry” under both\nstatutes because Congress enacted the exceptions based on\n\f WALKER SPECIALTY CONSTR., INC. V. BOARD OF TRUSTEES 15\n\n\n\n\nthe transient nature of the construction industry in both\ncontexts.\n Third, the Trust argues that despite referencing Taft-\nHartley in other parts of ERISA, Congress did not include a\nTaft-Hartley cross-reference in this exception, indicating\nthat Congress did not intend to use the NLRB’s definition of\n“building and construction industry.” The MPPAA\nexpressly references and incorporates several other terms\nfrom Taft-Hartley. See 29 U.S.C. § 1002(1) (defining\n“welfare plan” under ERISA to mean any plan maintained\nfor the purpose of providing its participants with any benefit\ndescribed in § 186(c) of Taft-Hartley), 1002(12) (defining\n“industry or activity affecting commerce” as the same term\nunder Taft-Hartley). But a cross-reference is not required,\nand its absence does not defeat the presumption that\nCongress intended to incorporate the NLRB’s definition of\n“building and construction industry” into the MPPAA.\nAgain, the use of identical language in both statutes indicates\nthat the definition of the term should be the same under the\nMPPAA and Taft-Hartley. See Comm’r of Internal Revenue,\n508 U.S. at 159; see also Shinseki v. Sanders, 556 U.S. 396,\n406–07 (2009).\n Fourth, the Trust argues that the Supreme Court’s\ndecision in Loper Bright Enters. v. Raimondo establishes\nthat the NLRB’s interpretation does not bind this court. 603\nU.S. 369 (2024). Loper Bright overturned Chevron\ndeference, but it did not overturn the tools of statutory\ninterpretation we apply here. See id. at 412. We do not defer\nto the NLRB’s interpretation of the phrase “building and\nconstruction industry” under Chevron. To the contrary, we\nhold that Congress’s intent to incorporate the NLRB’s\ndefinition of the term into the MPPAA is plain from its use\nof the same language in both statutes.\n\f16 WALKER SPECIALTY CONSTR., INC. V. BOARD OF TRUSTEES\n\n\n\n\n Fifth, the Trust emphasizes that the term “building and\nconstruction industry” should be construed narrowly\nbecause it is part of a statutory exception. See Resilient\nFloor, 801 F.3d at 1094 (describing the exception as\nnarrow). But because we infer that Congress incorporated\nthe NLRB’s interpretation of the term into the MPAA, we\ncannot define the term more narrowly than Congress\nintended.\n Finally, the Trust argues that even if we were to adopt\nthe NLRB’s definition as articulated in Indio Paint, that\ndefinition would be limited to literally forming, making, or\nbuilding a structure. But as we have already explained, Indio\nPaint provided a comprehensive definition of the “building\nand construction industry” that included alterations,\nmaintenance, and repairs. See 156 N.L.R.B. at 957–58. We\ntherefore adopt the NLRB’s expansive understanding of the\n“building and construction industry.”\n\n C. Asbestos abatement is work in the “building\n and construction industry” because it involves\n structural alterations and repairs.\n\n Turning to the facts at hand, we must now determine\nwhether Walker’s asbestos abatement work falls within the\nNLRB’s definition of the “building and construction\nindustry.” We conclude that asbestos abatement is work\nwithin the “building and construction industry” because it\ninvolves the “maintenance and repair . . . of immobile\nstructures . . . which become integral parts of structures and\nare essential to their use for any general purpose.” See Indio\nPaint, 156 N.L.R.B. at 957.\n By removing asbestos from building walls, roofs, and\nfloors, Walker repairs integral parts of buildings and ensures\n\f WALKER SPECIALTY CONSTR., INC. V. BOARD OF TRUSTEES 17\n\n\n\n\nthat the buildings are usable without any hazard to\noccupants’ health. Walker’s abatement work requires\nsubstantial alterations to buildings—it is not merely scraping\nsurfaces, as the Trust argues. For instance, Walker’s asbestos\nabatement involves “demolishing [asbestos-containing]\nmaterial such as drywall” and roofing, and “seal[ing] off”\nareas around asbestos using polyethylene. Walker’s\nemployees remove walls, ceiling, and “interior finishes such\nas carpets, wall coverings etc.” to facilitate asbestos removal\nand enable remodeling, refurbishing, or complete demolition\nof buildings. Indeed, Walker’s asbestos abatement work is\nvirtually indistinguishable from the demolition work in\nZidell, which the NLRB concluded to be part of the\n“building and construction industry” under its well-settled\ndefinition of the term. See 175 N.L.R.B. at 888. Thus,\nWalker’s asbestos abatement is part of the “building and\nconstruction industry” under the MPPAA.\n CONCLUSION\n For the foregoing reasons, we hold that “building and\nconstruction industry” under the MPPAA incorporates the\nNLRB’s established definition of the term and thus includes\nWalker’s asbestos abatement work. Because substantially all\nof Walker’s employees worked in the “building and\nconstruction industry,” Walker qualifies for the exception to\nwithdrawal liability and was thus entitled to summary\njudgment.\n AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11235507/", "author_raw": "DESAI, Circuit Judge:"}]}	JOHNNIE B RAWLINSON	ERIC D MILLER	ROOPALI H DESAI	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10768922/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,768,923	American Federation of Government Employees, Afl-Cio v. Trump	2026-01-05	25-3293	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: William A. Fletcher, Johnnie B. Rawlinson, Circuit Judges.", "parties": "", "opinions": [{"author": "Statement by Judge W. Fletcher", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\nAMERICAN FEDERATION OF No. 25-3293\nGOVERNMENT EMPLOYEES,\n D.C. No.\nAFL-CIO; AMERICAN\n 3:25-cv-03698-SI\nFEDERATION OF STATE,\n Northern District\nCOUNTY & MUNICIPAL\n of California,\nEMPLOYEES, AFL-CIO; SERVICE\n San Francisco\nEMPLOYEES INTERNATIONAL\nUNION; AMERICAN ORDER\nFEDERATION OF GOVERNMENT\nEMPLOYEES - LOCAL 1122;\nAMERICAN FEDERATION OF\nGOVERNMENT EMPLOYEES -\nLOCAL 1236; AMERICAN\nFEDERATION OF GOVERNMENT\nEMPLOYEES - LOCAL 2110;\nAMERICAN FEDERATION OF\nGOVERNMENT EMPLOYEES -\nLOCAL 3172; SERVICE\nEMPLOYEES INTERNATIONAL\nUNION - LOCAL 1000; ALLIANCE\nFOR RETIRED AMERICANS;\nAMERICAN GEOPHYSICAL\nUNION; AMERICAN PUBLIC\nHEALTH ASSOCIATION;\nCENTER FOR TAXPAYER\nRIGHTS; COALITION TO\nPROTECT AMERICA'S\nNATIONAL PARKS; COMMON\n\f2 AMERICAN FED’N OF GOV’T EMPLOYEES V. TRUMP\n\n\nDEFENSE CIVIC ENGAGEMENT;\nMAIN STREET ALLIANCE;\nNATURAL RESOURCES\nDEFENSE COUNCIL, INC.;\nNORTHEAST ORGANIC\nFARMING ASSOCIATION, INC.;\nVOTEVETS ACTION FUND, INC.;\nWESTERN WATERSHEDS\nPROJECT; COUNTY OF SANTA\nCLARA; CITY OF CHICAGO;\nCOUNTY OF KING; COUNTY OF\nHARRIS; CITY OF BALTIMORE;\nCITY AND COUNTY OF SAN\nFRANCISCO,\n\n Plaintiffs - Appellees,\n\n v.\n\nDONALD J. TRUMP, in his official\ncapacity as President of the United\nStates; UNITED STATES OFFICE\nOF MANAGEMENT AND\nBUDGET; RUSSELL VOUGHT, in\nhis official capacity as Director of\nU.S. Office of Management and\nBudget; UNITED STATES OFFICE\nOF PERSONNEL MANAGEMENT;\nCHARLES EZELL, in his official\ncapacity as Acting Director of the\nU.S. Office of Personnel\nManagement; UNITED STATES\nDEPARTMENT OF\n\f AMERICAN FED’N OF GOV’T EMPLOYEES V. TRUMP 3\n\n\nGOVERNMENT EFFICIENCY;\nELON MUSK, in his official capacity\nas the actual head of the Department\nof Government Efficiency; AMY\nGLEASON, in her official capacity\nas the titular Acting Administrator of\nthe Department of Government\nEfficiency; UNITED STATES\nDEPARTMENT OF\nAGRICULTURE; BROOKE\nROLLINS, in her official capacity as\nSecretary of the U.S. Department of\nAgriculture; UNITED STATES\nDEPARTMENT OF COMMERCE;\nHOWARD LUTNICK, in his official\ncapacity as Secretary of the U.S.\nDepartment of Commerce; UNITED\nSTATES DEPARTMENT OF\nDEFENSE; PETER HEGSETH, in\nhis official capacity as Secretary of\nthe U.S. Department of Defense;\nUNITED STATES DEPARTMENT\nOF ENERGY; CHRIS WRIGHT, in\nhis official capacity as Secretary of\nthe U.S. Department of Energy;\nUNITED STATES DEPARTMENT\nOF HEALTH AND HUMAN\nSERVICES; ROBERT F.\nKENNEDY, Jr., in his official\ncapacity as Secretary of the U.S.\nDepartment of Health and Human\nServices; UNITED STATES\nDEPARTMENT OF HOMELAND\n\f4 AMERICAN FED’N OF GOV’T EMPLOYEES V. TRUMP\n\n\nSECURITY; KRISTI NOEM, in her\nofficial capacity as Secretary of the\nU.S. Department of Homeland\nSecurity; UNITED STATES\nDEPARTMENT OF HOUSING\nAND URBAN DEVELOPMENT;\nSCOTT TURNER, in his official\ncapacity as Secretary of the U.S.\nDepartment of Housing and Urban\nDevelopment; DOJ - UNITED\nSTATES DEPARTMENT OF\nJUSTICE; PAMELA BONDI,\nAttorney General, in her official\ncapacity as Attorney General of the\nU.S. Department of Justice; UNITED\nSTATES DEPARTMENT OF THE\nINTERIOR; DOUG BURGUM, in\nhis official capacity as Secretary of\nthe U.S. Department of the Interior;\nUNITED STATES DEPARTMENT\nOF LABOR; LORI CHAVEZ-\nDEREMER, in her official capacity\nas Secretary of the U.S. Department\nof Labor; UNITED STATES\nDEPARTMENT OF STATE;\nMARCO RUBIO, in his official\ncapacity as Secretary of the U.S.\nDepartment of State; UNITED\nSTATES DEPARTMENT OF THE\nTREASURY; SCOTT BESSENT, in\nhis official capacity as Secretary of\nU.S. Department of Treasury;\nUNITED STATES DEPARTMENT\n\f AMERICAN FED’N OF GOV’T EMPLOYEES V. TRUMP 5\n\n\nOF TRANSPORTATION; SEAN\nDUFFY, in his official capacity as\nSecretary for the U.S. Department of\nTransportation; UNITED STATES\nDEPARTMENT OF VETERANS\nAFFAIRS; DOUG COLLINS, in his\nofficial capacity as Secretary of\nVeterans Affairs; AMERICORPS;\nJENNIFER BASTRESS\nTAHMASEBI, in her official\ncapacity as Interim Agency Head of\nAmeriCorps; UNITED STATES\nENVIRONMENTAL PROTECTION\nAGENCY; LEE ZELDIN, in his\nofficial capacity as Administrator of\nU.S. Environmental Protection\nAgency; UNITED STATES\nGENERAL SERVICES\nADMINISTRATION; STEPHEN\nEHIKIAN, in his official capacity as\nActing Administrator for U.S.\nGeneral Services Administration;\nNATIONAL LABOR RELATIONS\nBOARD; MARVIN E. KAPLAN, in\nhis official capacity as Chairman of\nthe National Labor Relations Board;\nWILLIAM COWEN, in his official\ncapacity as the Acting General\nCounsel of the National Labor\nRelations Board; NATIONAL\nSCIENCE FOUNDATION; BRIAN\nSTONE, in his official capacity as\nActing Director of the National\n\f6 AMERICAN FED’N OF GOV’T EMPLOYEES V. TRUMP\n\n\nScience Foundation; UNITED\nSTATES SMALL BUSINESS\nADMINISTRATION; KELLY\nLOEFFLER, in her official capacity\nas Administrator of the U.S. Small\nBusiness Administration; SOCIAL\nSECURITY ADMINISTRATION;\nFRANK BISIGNANO,\nCommissioner of Social Security, in\nhis official capacity as Commissioner\nof the U.S. Social Security\nAdministration,\n\n Defendants - Appellants.\n\n\nIN Re DONALD J. TRUMP No. 25-4476\n___________________________\n D.C. No.\n 3:25-cv-03698-SI\nDONALD J. TRUMP; UNITED\n Northern District\nSTATES OFFICE OF\n of California,\nMANAGEMENT AND BUDGET;\n San Francisco\nRUSSELL VOUGHT; UNITED\nSTATES OFFICE OF PERSONNEL ORDER\nMANAGEMENT; CHARLES\nEZELL; UNITED STATES\nDEPARTMENT OF\nGOVERNMENT EFFICIENCY;\nELON MUSK; AMY GLEASON;\nUNITED STATES DEPARTMENT\nOF AGRICULTURE; BROOKE\nROLLINS; UNITED STATES\nDEPARTMENT OF COMMERCE;\n\f AMERICAN FED’N OF GOV’T EMPLOYEES V. TRUMP 7\n\n\nHOWARD LUTNICK; UNITED\nSTATES DEPARTMENT OF\nDEFENSE; PETER HEGSETH;\nUNITED STATES DEPARTMENT\nOF ENERGY; CHRIS WRIGHT;\nUNITED STATES DEPARTMENT\nOF HEALTH AND HUMAN\nSERVICES; ROBERT F.\nKENNEDY, Jr.; UNITED STATES\nDEPARTMENT OF HOMELAND\nSECURITY; KRISTI NOEM;\nUNITED STATES DEPARTMENT\nOF HOUSING AND URBAN\nDEVELOPMENT; SCOTT\nTURNER; DOJ - UNITED STATES\nDEPARTMENT OF JUSTICE;\nPAMELA BONDI, Attorney\nGeneral; UNITED STATES\nDEPARTMENT OF THE\nINTERIOR; DOUG BURGUM;\nUNITED STATES DEPARTMENT\nOF LABOR; LORI CHAVEZ-\nDEREMER; UNITED STATES\nDEPARTMENT OF STATE;\nMARCO RUBIO; UNITED STATES\nDEPARTMENT OF THE\nTREASURY; SCOTT BESSENT;\nUNITED STATES DEPARTMENT\nOF TRANSPORTATION; SEAN\nDUFFY; UNITED STATES\nDEPARTMENT OF VETERANS\nAFFAIRS; DOUG COLLINS;\nAMERICORPS; JENNIFER\n\f8 AMERICAN FED’N OF GOV’T EMPLOYEES V. TRUMP\n\n\nBASTRESS TAHMASEBI;\nUNITED STATES\nENVIRONMENTAL PROTECTION\nAGENCY; LEE ZELDIN; UNITED\nSTATES GENERAL SERVICES\nADMINISTRATION; STEPHEN\nEHIKIAN; NATIONAL LABOR\nRELATIONS BOARD; MARVIN E.\nKAPLAN; WILLIAM COWEN;\nNATIONAL SCIENCE\nFOUNDATION; BRIAN STONE;\nUNITED STATES SMALL\nBUSINESS ADMINISTRATION;\nKELLY LOEFFLER; SOCIAL\nSECURITY ADMINISTRATION;\nFRANK BISIGNANO,\nCommissioner of Social Security,\n\n Petitioners,\n\n v.\n\nUNITED STATES DISTRICT\nCOURT FOR THE NORTHERN\nDISTRICT OF CALIFORNIA, SAN\nFRANCISCO,\n\n Respondent,\n\nAMERICAN FEDERATION OF\nGOVERNMENT EMPLOYEES,\nAFL-CIO; AMERICAN\nFEDERATION OF STATE,\n\f AMERICAN FED’N OF GOV’T EMPLOYEES V. TRUMP 9\n\n\nCOUNTY & MUNICIPAL\nEMPLOYEES, AFL-CIO; SERVICE\nEMPLOYEES INTERNATIONAL\nUNION; AMERICAN\nFEDERATION OF GOVERNMENT\nEMPLOYEES - LOCAL 1122;\nAMERICAN FEDERATION OF\nGOVERNMENT EMPLOYEES -\nLOCAL 1236; AMERICAN\nFEDERATION OF GOVERNMENT\nEMPLOYEES - LOCAL 2110;\nAMERICAN FEDERATION OF\nGOVERNMENT EMPLOYEES -\nLOCAL 3172; SERVICE\nEMPLOYEES INTERNATIONAL\nUNION - LOCAL 1000; ALLIANCE\nFOR RETIRED AMERICANS;\nAMERICAN GEOPHYSICAL\nUNION; AMERICAN PUBLIC\nHEALTH ASSOCIATION;\nCENTER FOR TAXPAYER\nRIGHTS; COALITION TO\nPROTECT AMERICA'S\nNATIONAL PARKS; COMMON\nDEFENSE CIVIC ENGAGEMENT;\nMAIN STREET ALLIANCE;\nNATURAL RESOURCES\nDEFENSE COUNCIL, INC.;\nNORTHEAST ORGANIC\nFARMING ASSOCIATION, INC.;\nVOTEVETS ACTION FUND, INC.;\nWESTERN WATERSHEDS\nPROJECT; COUNTY OF SANTA\n\f10 AMERICAN FED’N OF GOV’T EMPLOYEES V. TRUMP\n\n\nCLARA; CITY OF CHICAGO;\nCOUNTY OF MARTIN LUTHER\nKING, JR.; COUNTY OF HARRIS;\nCITY OF BALTIMORE; CITY AND\nCOUNTY OF SAN FRANCISCO,\n\n Real Parties in Interest.\n\n Filed January 5, 2026\n\nBefore: William A. Fletcher, Johnnie B. Rawlinson, Circuit\n Judges. \n\n Order;\n Statement by Judge W. Fletcher;\n Dissent by Judge Bumatay\n\n\n SUMMARY \n\n\n Executive Orders/Mandamus\n\n In a case in which the American Federation of\nGovernment Employees, AFL–CIO and others challenge\nPresident Trump’s Executive Order 14210 directing federal\nagencies to commence large-scale reductions in force\n\n\n Judge Ikuta was a member of the original panel in this case. In\naccordance with General Order 3.2(h), this order is issued by the\nremaining panel members as a quorum pursuant to 28 U.S.C. § 46(d).\n**\n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\f AMERICAN FED’N OF GOV’T EMPLOYEES V. TRUMP 11\n\n\n(“RIFs”), the panel denied a petition for panel rehearing or\nen banc rehearing of the panel’s decision (1) denying the\ngovernment parties’ petition for a writ of mandamus\nchallenging the district court’s discovery order requiring in\ncamera production of the Agency RIF and Reorganization\nPlans of all named agency defendants, (2) vacating the\ndistrict court’s preliminary injunction, and (3) remanding to\nthe district court.\n Respecting the denial of rehearing en banc, Judge W.\nFletcher and Judge Rawlinson responded to the dissent from\nthe denial of rehearing en banc. First, although the Supreme\nCourt had stayed the district court’s preliminary injunction\nin an earlier iteration of this case, the Court specifically left\nopen the legality of the documents at issue. Second, the\npanel assumed that the privilege for predecisional\ndeliberative documents applied to the Agency RIF and\nReorganization Plans in question but agreed with the district\ncourt’s conclusion that the privilege was overridden in the\ncircumstances of this case. Third, the panel carefully\nconsidered the well-established four-factor test set forth in\nFTC v. Warner Commc’ns Inc., 742 F.2d 1156 (9th Cir.\n1984), in determining that the deliberative process privilege\nwas overcome and that mandamus was not\nwarranted. Fourth, the strong showing of a bad faith\nrequired for discovery of documents outside the\nadministrative record was irrelevant because in this case\nthere was no administrative record. Finally, the dissent fails\nto adequately account for the exceptional standard for\ngranting mandamus.\n Dissenting from the denial of rehearing en banc, Judge\nBumatay, joined by Judges Callahan, R. Nelson, VanDyke\nand Tung, wrote that, in denying the mandamus petition, the\npanel made three errors that needed correction by our en\n\f12 AMERICAN FED’N OF GOV’T EMPLOYEES V. TRUMP\n\n\nbanc court. First, the panel majority flirted with the idea that\nthe government’s internal RIF Plans were not even\ndeliberative—a truly extreme position. It wrongly\nsuggested that the government’s internal RIF Plans are not\npredecisional, deliberative materials. Second, and more\nimportantly, the panel majority severely weakened the\ndeliberative process privilege—a doctrine with deep\ncommon-law roots that protects the separation of powers. It\nfailed to adequately address the separation-of-powers\nconcerns in ordering the discovery of intra-executive branch\ndocuments. Third, the panel majority created a blueprint for\nmaking an end-run around the Administrative Procedure\nAct’s normal discovery rules. It mangled the law for\nordering extra-record discovery and so expanded it to\ncircumvent any limits on the production of internal\ngovernment documents.\n\n\n\n ORDER\n\n Judges W. Fletcher and Rawlinson voted to deny\npetitioners’ petition for panel rehearing. Judge Rawlinson\nvoted to deny the petition for rehearing en banc, and Judge\nW. Fletcher so recommended.\n The full court has been advised of the petition for\nrehearing en banc. A judge requested a vote on whether to\nrehear the matter en banc. The matter failed to receive a\nmajority of votes of the nonrecused active judges in favor of\nen banc consideration. Fed. R. App. P. 35(f).\n The petition for panel rehearing or rehearing en banc\n(Dkt. No. 29) is DENIED.\n\f AMERICAN FED’N OF GOV’T EMPLOYEES V. TRUMP 13\n\n\nW. FLETCHER and RAWLINSON, Circuit Judges,\nrespecting the denial of rehearing en banc:\n Our published order speaks for itself. AFGE v. Trump,\n155 F.4th 1082 (9th Cir. 2025). However, some of the\narguments in our colleague’s dissent from failure to go en\nbanc deserve additional response.\n First, our colleague points out that the Supreme Court\nstayed the district court’s preliminary injunction in an earlier\niteration of this case. He writes that the Court “stayed the\npreliminary injunction, specifically concluding that ‘the\nGovernment [was] likely to succeed on its argument that the\nExecutive Order and [OMB-OPM] Memorandum are\nlawful[.]’” Dissent at 19 (alterations in original) (quoting\nTrump v. AFGE, 145 S. Ct. 2635, 2635 (2025)). Our\ncolleague omits to mention that the Court specifically left\nopen the legality of the documents at issue in the petition\nbefore us. We wrote in our order that the Court “expressly\ndeclined to express any view on ‘the legality of any Agency\nRIF and Reorganization Plan [ARRP] produced or approved\npursuant to the Executive Order and Memorandum.’”\nAFGE, 155 F.4th at 1089 (quoting AFGE, 145 S. Ct. at\n2635). As Justice Sotomayor noted in concurrence, the\nSupreme Court’s stay “leaves the District Court free to\nconsider those questions in the first instance.” 145 S. Ct. at\n2635 (Sotomayor, J., concurring). The question before our\npanel was a necessary preliminary: whether the district court\ncould look at the ARRPs in determining their legality. The\nanswer to that question is pretty obviously “yes.”\n Second, our colleague’s first argument, occupying five\nmanuscript pages, pushes on an open door. Dissent at 23–\n27. Our colleague argues that the ARRPs in question were\nprivileged predecisional, deliberative documents. There is\n\f14 AMERICAN FED’N OF GOV’T EMPLOYEES V. TRUMP\n\n\ngood reason to conclude that they are not. It is hard to argue\nthat the ARRPs are predecisional when “extensive\nreorganizations and RIFs [were] already underway.” AFGE,\n155 F.4th at 1091. “[I]f the ARRPs are non-final planning\ndocuments that do not commit an agency to take any specific\naction, pursuant to what, then, are the agencies\nimplementing their large-scale reorganizations and RIFs?”\nId. (quoting Dist. Ct. Dkt. No. 214 at 10). Likewise, it is\nhard to argue that the ARRPs are deliberative when “all\navailable evidence . . . indicates that the ARRPs represent\nthe considered position of the agency submitted for approval\nby OMB, and not the personal opinions of an individual.”\nId. at 1092.\n We nevertheless assumed in our order that the privilege\nfor predecisional, deliberative documents applies. We\nwrote:\n\n [W]e are willing to assume arguendo, as did\n the district court, that at least some of the\n ARRPs are predecisional deliberative\n documents and that the privilege therefore\n applies.\n\nId. “So assuming, we agree with the district court’s\nconclusion that the privilege is overridden in the\ncircumstances of this case.” Id.\n Third, the government argued to us that the deliberative\nprocess privilege was not overcome and that mandamus was\nwarranted, relying on our well-established four-factor\nWarner test. See FTC v. Warner Commc’ns Inc., 742 F.2d\n1156, 1161 (9th Cir. 1984); Petition for Writ of Mandamus\nat 11. Our order carefully considered the four Warner\nfactors and concluded that the privilege was overcome and\n\f AMERICAN FED’N OF GOV’T EMPLOYEES V. TRUMP 15\n\n\nthat mandamus was not warranted. AFGE, 155 F.4th at\n1092–93. In disagreeing with our conclusion, our colleague\nnowhere addresses the four-factor Warner test. Instead, he\nrelies on Department of Commerce v. New York, 588 U.S.\n752 (2019), which the government never relied on—or even\nmentioned—in its briefing to us.\n Fourth, quoting Department of Commerce, our colleague\ncontends that discovery of the RIFs required “a strong\nshowing of bad faith or improper behavior.” Dissent at 30,\n32. Here is the paragraph from which that language is taken:\n\n [W]e have recognized a narrow exception to\n the general rule against inquiring into “the\n mental processes of administrative\n decisionmakers.” On a “strong showing of\n bad faith or improper behavior,” such an\n inquiry may be warranted and may justify\n extra-record discovery.\n\nDep’t of Com., 588 U.S. at 781 (emphasis added) (citations\nomitted). As the Court’s opinion makes clear, Department\nof Commerce and its narrow exception address documents\nthat are outside the administrative record. Our colleague\noverlooks the fact that the government successfully opposed\nproducing an administrative record in the district court. See\nDist. Ct. Dkt. Nos. 240, 242. The posture of this case thus\nmakes Department of Commerce irrelevant, for there is no\nadministrative record.\n As we wrote in our order:\n\n [T]his case does not come to us in the posture\n of an ordinary APA review. There has been\n no compilation of a conventional\n\f16 AMERICAN FED’N OF GOV’T EMPLOYEES V. TRUMP\n\n\n administrative record, no notice-and-\n comment rulemaking, and no issuance of a\n final rule or adjudication. Instead, massive\n RIFs and reorganizations have been carried\n out without anything resembling the normal\n rulemaking or adjudicatory processes that\n typically produce a conventional\n administrative record. . . . If there have been\n “departures from settled principles” in this\n case, they consist in the sweep of actions\n undertaken by the government without\n ordinary processes—actions which the\n government now seeks to shield from\n scrutiny by invoking presumptions ordinarily\n attendant upon the very processes it has\n ignored.\n\nAFGE, 155 F.4th at 1093 (emphasis added) (citation\nomitted).\n Finally, our colleague fails to adequately account for the\nexceptional standard for granting mandamus. Mandamus is\na “drastic and extraordinary remedy reserved for really\nextraordinary causes.” In re Bundy, 840 F.3d 1034, 1040\n(9th Cir. 2016) (quoting Cheney v. U.S. Dist. Ct., 542 U.S.\n367, 380 (2004)). Absence of “clear error” is dispositive and\nfatal to a mandamus petition. Id. at 1041. “The clear error\nstandard is significantly deferential and is not met unless the\nreviewing court is left with a ‘definite and firm conviction\nthat a mistake has been committed.’” Id. (quoting In re\nUnited States, 791 F.3d 945, 955 (9th Cir. 2015)). The\ngovernment agreed that Warner supplies the governing test\nfor overcoming the asserted privilege, and the district court\nfaithfully applied it. There was no error in the district court’s\n\f AMERICAN FED’N OF GOV’T EMPLOYEES V. TRUMP 17\n\n\napplication of Warner, which our colleague’s dissent does\nnot address. We denied mandamus—and this court\nappropriately denied en banc rehearing—because the clear\nerror standard was not met.\n\n\nBUMATAY, Circuit Judge, joined by CALLAHAN,\nNELSON, VANDYKE, and TUNG, Circuit Judges,\ndissenting from the denial of rehearing en banc:\n\n The majority today does not acknowledge the\n district court’s clear error in ordering the\n production of documents that implicate the\n executive branch’s deliberative processes,\n even though producing such intra-executive\n branch dialogues implicates separation of\n process concerns that require the most\n ‘careful consideration’ by the judiciary.\n\nAmerican Federation of Government Employees, AFL-CIO\nv. Trump (“AFGE”), 155 F.4th 1082, 1095 (9th Cir. 2025)\n(Ikuta, J., dissenting) (simplified).\n I.\n This controversy began with a Sharpie.\n Shortly after taking office, President Trump signed\nExecutive Order 14210. In that Order, the President directed\nagency heads to “undertake preparations to initiate large-\nscale reductions in force (RIFs), consistent with applicable\nlaw[.]” Executive Order No. 14210, 90 Fed. Reg. 9669,\n9670 (Feb. 14, 2025). Following the Executive Order, the\nOffice of Management and Budget (“OMB”) and the Office\nof Personnel Management (“OPM”) issued a guidance\n\f18 AMERICAN FED’N OF GOV’T EMPLOYEES V. TRUMP\n\n\ndirecting executive agencies to submit agency RIF and\nreorganization plans (“RIF Plans”) for review and approval.\nThe two agencies required the RIF Plans to be submitted in\ntwo phases. First, Phase 1 RIF Plans were to focus on “initial\nagency cuts and reductions,” detailing which agency\ncomponents and agencies perform work not mandated by\nstatute. Second, Phase 2 RIF Plans were to provide a plan\nfor “more productive, efficient agency operations,”\nincluding explaining how the RIF Plans “will improve\nservices for Americans and advance the President’s policy\npriorities.” Nothing in the Executive Order or the follow-up\nguidance forces agencies to implement RIFs according to the\ninternal RIF Plans. The American Federation of\nGovernment Employees, other federal-employee unions,\nadvocacy organizations, and local governments\n(collectively, “Plaintiffs”) immediately sued to stop the\nRIFs, bringing Administrative Procedure Act (“APA”) and\nultra vires claims.\n The Ninth Circuit has mishandled this case from the\nstart. The first misstep? Weeks after the complaint’s filing,\nthe district court ruled that the President was without\nauthority to direct executive agencies to even plan for RIFs\nand enjoined “any actions” directed by the President’s\nExecutive Order and the OMB/OPM guidance. The district\ncourt believed only agencies—acting independent of the\nPresident—could consider implementing RIFs. Of course,\nthis ignores that only the President is vested with the\nExecutive Power. See U.S. Const. art. II, § 1 (“The\nexecutive Power shall be vested in a President of the United\nStates of America.”). This was “a sweeping preliminary\ninjunction that strip[ped] the Executive of control over its\nown personnel.” See AFGE v. Trump, 139 F.4th 1020, 1040\n(9th Cir. 2025) (Callahan, J., dissenting). Ignoring this huge\n\f AMERICAN FED’N OF GOV’T EMPLOYEES V. TRUMP 19\n\n\nconstitutional pitfall, a divided motions panel of the Ninth\nCircuit then refused to stay the preliminary injunction. Id.\nThe Supreme Court made swift work of our poor judgment.\nIt stayed the preliminary injunction, specifically concluding\nthat “the Government [was] likely to succeed on its\nargument that the Executive Order and [OMB-OPM]\nMemorandum are lawful[.]” Trump v. AFGE, 145 S. Ct.\n2635, 2635 (2025). Sure, the Court didn’t opine on each\nagency’s individual RIF plan but it didn’t bless wholesale\njudicial intervention in particular agency’s RIFs either. That\nwas our first mistake.\n Now for the second misstep. Shortly after the complaint\nwas filed, the district court ordered the government to\nimmediately produce to Plaintiffs all versions of internal RIF\nPlans submitted to or approved by OMB and OPM. Perhaps\nrealizing the scope of its decision, the district court\nbackpedaled a bit. It paused its discovery order to consider\nthe government’s motion to reconsider. But, in July, even\nafter the Supreme Court stayed the preliminary injunction,\nthe district court continued to order the government to\nproduce its internal RIF Plans to Plaintiffs’ counsel (but you\nwouldn’t learn that from reading the panel majority opinion).\nThe only solace for the government? The district court\ngranted a protective order preventing counsel from sharing\nthe internal RIF plans.\n Once again, we failed to fix this mistake. The\ngovernment petitioned for a writ of mandamus, requesting\nthat we direct the district court to halt the production of its\nintragovernmental documents. Over Judge Ikuta’s dissent,\nthe panel majority denied the petition. AFGE, 155 F.4th at\n1093. This error, however, seriously degrades the separation\nof powers—opening the federal government’s internal\n\f20 AMERICAN FED’N OF GOV’T EMPLOYEES V. TRUMP\n\n\ndeliberations to the whims of district courts opposed to\npresidential policies.\n In denying the mandamus petition, the panel made three\nerrors that needed correction by our en banc court.\n First, the panel majority flirted with the idea that the\ngovernment’s internal RIF Plans were not even\ndeliberative—a truly extreme position. The panel majority\nfound “little evidence” to believe that the documents were\ndeliberative. AFGE, 155 F.4th at 1091. It relied on an\nunbelievably narrow view of what’s deliberative. It opined\nthat a document must reflect some executive branch\nemployee’s “personal position” rather than an “agency\nposition” to qualify as “deliberative.” Id. (emphasis\nomitted). Because the government’s internal RIF Plans\nappeared to “represent the considered position of the agency\n. . . and not the personal opinions of an individual,” the panel\nmajority suggested that the documents weren’t entitled to\nany deliberative process protection. Id. at 1092. But that’s\ncontrary to precedent and any conception of the privilege.\nNow, the panel majority claims that its musing on this\nsubject is no big deal because it ultimately assumed that the\ninternal RIF Plans were “predecisional deliberative\ndocuments.” Id. But not so fast. Given the Ninth Circuit’s\nodd binding dicta rule, even the panel majority’s outlier\nviews may become precedential law. See Enying Li v.\nHolder, 738 F.3d 1160, 1164 n.2 (9th Cir. 2013). So we\nneeded to correct this error.\n Second, and more importantly, the panel majority\nseverely weakened the deliberative process privilege—a\ndoctrine with deep common-law roots that protects the\nseparation of powers. See Russell L. Weaver & James T.R.\nJones, The Deliberative Process Privilege, 54 Mo. L. Rev.\n\f AMERICAN FED’N OF GOV’T EMPLOYEES V. TRUMP 21\n\n\n279, 283–90 (1989) (tracing the origins and early\ndevelopment of the deliberative process privilege). There’s\nno question that the internal RIF Plans enjoy the protection\nof the deliberative process privilege. But the panel majority\npierced that privilege by ignoring separation-of-powers\nconcerns. Compelling disclosure of internal Executive\nBranch communications must be exceptional and\nappropriately narrow. After all, as Judge Ikuta observed,\nthese are no “ordinary discovery matters.” AFGE, 155 F.4th\nat 1099 (Ikuta, J., dissenting) (simplified). The panel\nmajority doubted any “chilling effect on internal Executive\nBranch deliberations” simply because it believed that the in\ncamera production of the government’s internal RIF\ndocuments hadn’t yet produced any “harm.” AFGE, 155\nF.4th at 1092–93. Again, that’s too narrow a view of a\nseparation-of-powers harm. Just because no immediate\nhazard materializes from showing internal documents to a\njudge in the privacy of the judge’s chambers doesn’t mean\nthat no harm will come to the government from wider public\ndisclosure. Even worse, the panel majority suggested that\nordinary discovery rules don’t even apply here because of\nwhat it deems “the sweep of actions undertaken by the\ngovernment without ordinary processes.” Id. at 1093. So\nthe panel majority condoned departing from “settled\nprinciples” to combat what it perceived as the government’s\n“massive RIFs and reorganizations” without “normal\nrulemaking or adjudicatory processes[.]” Id. But the rule of\nlaw requires that we maintain the accepted rules even if we\nbelieve others do not.\n Third, the panel majority created a blueprint for making\nan end-run around the APA’s normal discovery rules.\nSimply, “deliberative materials are not part of the\nadministrative record to begin with.” Blue Mountains\n\f22 AMERICAN FED’N OF GOV’T EMPLOYEES V. TRUMP\n\n\nBiodiversity Project v. Jeffries, 99 F.4th 438, 445 (9th Cir.\n2024) (simplified). Thus, under settled APA rules, the whole\nrecord is the “record the agency presents.” Id. (simplified).\nAs Judge Ikuta recognized, compelling extra-record\ndiscovery requires, at a minimum, putting plaintiffs to their\nburden of showing a “narrow exception” applied or a “strong\nshowing of bad faith or improper behavior.” AFGE, 155\nF.4th at 1097–98 (Ikuta, J., dissenting) (simplified). But\nthose limits were cast aside under the panel majority’s\nruling. According to the panel majority, merely saying the\nmagic words of “ultra vires” gets plaintiffs around any limits\non discovery in APA suits. AFGE, 155 F.4th at 1093\n(“Review of an ultra vires challenge would not be limited to\nan administrative record.”). Under the panel majority’s new\nboundless ruling, plaintiffs may engage in fishing\nexpeditions for any internal government documents so long\nas they add an “ultra vires” claim to their APA complaint.\n So while this case began with a Sharpie, unless\ncorrected, it ends with a blow to the separation of powers.\nThe Supreme Court already had to step in once in this case.\nBut we failed to police ourselves yet again. We should have\ntaken this case en banc to correct the panel majority’s\n“departures from settled principles.” Id. at 1099 (Ikuta, J.,\ndissenting). Because the separation of powers requires\ngreater restraint than we have shown, I respectfully dissent\nfrom the denial of rehearing en banc.\n II.\n Satisfying the threshold for mandamus is high—but not\ninsurmountable. While we look at several factors in\nconsidering the petition, we start with whether the district\ncourt’s order is clearly erroneous. See In re Mersho, 6 F.4th\n891, 898 (9th Cir. 2021). Clear error exists when “the\n\f AMERICAN FED’N OF GOV’T EMPLOYEES V. TRUMP 23\n\n\nreviewing court is left with a definite and firm conviction\nthat a mistake has been committed.” In re Bundy, 840 F.3d\n1034, 1041 (9th Cir. 2016) (simplified).\n Three errors infect the panel majority’s consideration of\nthe “clear error” factor. First, the panel majority wrongly\nsuggested that the government’s internal RIF Plans are not\npredecisional, deliberative materials. Second, it failed to\nadequately address the separation-of-powers concerns in\nordering the discovery of intra-executive branch documents.\nThird, it mangled the law for ordering extra-record discovery\nand so expanded it to circumvent any limits on the\nproduction of internal government documents. Each of these\nerrors warrants en banc review.\n A.\n Internal RIF Plans Are Predecisional, Deliberative\n Documents\n In denying the mandamus petition, the panel majority\ncast doubt on whether the government’s internal RIF Plans\nwere predecisional, deliberative documents. AFGE, 155\nF.4th at 1091. That suggestion is mistaken. And even\nthough the panel majority ultimately assumed that the RIF\nPlans were subject to the deliberative process privilege, it’s\nimportant to correct any misimpression on the nature of\ndeliberative documents that the panel majority leaves as\nprecedent.\n The deliberative process privilege “permits the\ngovernment to withhold documents” that are “predecisional”\nand “deliberative.” FTC v. Warner Commc’ns Inc., 742 F.2d\n1156, 1161 (9th Cir. 1984) (per curiam). A document is\n“predecisional” if it was “generated before the agency’s final\ndecision on the matter.” U.S Fish & Wildlife Serv. v. Sierra\n\f24 AMERICAN FED’N OF GOV’T EMPLOYEES V. TRUMP\n\n\nClub, Inc., 592 U.S. 261, 268 (2021). And a document is\n“deliberative” if it is “prepared to help the agency formulate\nits position.” Id. Classic examples of predecisional and\ndeliberative documents include internal memoranda\ncontaining “advisory opinions, recommendations, and\ndeliberations[.]” Warner Commc’ns Inc., 742 F.2d at 1161\n(simplified). Simply, the privilege protects documents that\n“compris[e] part of a process by which governmental\ndecisions and policies are formulated.” NLRB v. Sears,\nRoebuck & Co., 421 U.S. 132, 150 (1975) (simplified).\n The government’s internal RIF Plans easily fit the\nrequirements of a predecisional, deliberative document.\nRecall that the internal RIF Plans are infused with both\npolicy recommendations and legal analyses to inform how\nto implement RIFs. For example, the OMB/OPM guidance\nrequires the agencies to provide proposals on how to\nimplement the President’s broad policy goals, including\nrecommendations—\n\n [T]o consolidate areas of the agency\n organization chart that are duplicative,\n consolidate management layers where\n unnecessary layers exist, seek reductions in\n components and positions that are non-\n critical, implement technological solutions\n that automate routine tasks while enabling\n staff to focus on higher-value activities, close\n and/or consolidate regional field offices to\n the extent consistent with efficient service\n\f AMERICAN FED’N OF GOV’T EMPLOYEES V. TRUMP 25\n\n\n delivery, and maximally reduce the use of\n outside consultants and contractors.\n\nThese agency advisory opinions, recommendations, and\ndeliberations are textbook examples of predecisional,\ndeliberative materials. The internal RIF Plans were also to\ncontain detailed legal analysis. The agencies were to provide\nlegal interpretations of their organic statutes and to assess\nwhether those statutes have “been interpreted in a way that\nexpands requirements beyond what the statute actually\nrequires.” The OMB/OPM directive thus sought the\nagencies’ legal advice on what functions these statutes\n“explicitly require”—presumably with the eye of\ndiscontinuing non-mandated functions. So these documents\nwere “generated before the agency’s final decision on the\nmatter” and “prepared to help the agency formulate its\nposition,” Sierra Club, 592 U.S. at 268, and were entitled to\nthe privilege even if RIFs were later implemented.\n First, the panel majority thought that these internal RIF\nPlans can’t be predecisional because “about 40 RIFs in 17\nagencies were in progress,” and so the panel majority\nguessed that the agencies must be implementing something.\nAFGE, 155 F.4th at 1091. But we don’t decide Executive\nBranch privileges based on guesses. The panel majority\ncited no evidence that the agencies were implementing RIFs\naccording to the plans submitted to or approved by OMB and\nOPM. And the panel majority misunderstood OMB and\nOPM’s role in implementing RIFs. They do not implement\nagency policies—the agencies do. See, e.g., 5 U.S.C.\n§ 3502. Indeed, nothing shows that agencies are bound to\nimplement a RIF plan as “approved” by OMB and OPM. In\nfact, counterexamples abound. See, e.g., Erin Schumaker et\nal., Vought promised to use the shutdown to shutter the\n\f26 AMERICAN FED’N OF GOV’T EMPLOYEES V. TRUMP\n\n\nbureaucracy. It didn’t go as planned., Politico (Oct. 25,\n2025) 1 (reporting that the RIFs agencies are implementing\ndiffer from those outlined in agency plans and OMB\nguidance). So even if the agencies eventually implemented\na RIF, no evidence establishes that they acted “pursuant to”\none of these internal RIF Plans, as the panel majority\nspeculated. AFGE, 155 F.4th at 1091.\n Second, the panel majority viewed the internal RIF Plans\nas non-deliberative because they “represent the considered\nposition of the agency submitted for approval by OMB, and\nnot the personal opinions of an individual” within the\ngovernment. Id. at 1092. As Judge Ikuta’s dissent\nexplained, the deliberative process privilege is not limited\n“to personal opinions” alone. See id. at 1097 n.3 (Ikuta, J.,\ndissenting). The panel majority seemingly highlighted one\ncategory of clearly deliberative material, as discussed by the\nD.C. Circuit in Coastal States Gas Corp. v. Dep’t of Energy,\n617 F.2d 854, 866 (D.C. Cir. 1980), and concluded it\nrepresented the exclusive universe of deliberative\ndocuments. But the panel majority ignored the D.C.\nCircuit’s warning that deciding whether a document is\ndeliberative is complicated because of “the sheer variety of\nways in which a document can be deliberative.” Jud. Watch,\nInc. v. U.S. Dep’t of Justice, 20 F.4th 49, 55 (D.C. Cir. 2021).\nThe panel majority was thus wrong to reduce “deliberative”\ndocuments to only those expressing “personal views.”\n And it would be an extraordinary narrowing of the\nprivilege—and contrary to precedent—to limit it to only\nfederal employees’ personal opinions. Instead, the privilege\napplies to any document that is “prepared to help the agency\n\n1\n https://www.politico.com/news/2025/10/25/hhs-shutdown-layoffs-\ndoge-vought-00620786\n\f AMERICAN FED’N OF GOV’T EMPLOYEES V. TRUMP 27\n\n\nformulate its position.” Sierra Club, 592 U.S. at 268\n(simplified). Indeed, the panel majority’s newfound\n“personal opinion” requirement would effectively destroy\nany deliberative process privilege for any interagency\ncommunications. Often agencies communicate with one\nanother in a predecisional, deliberative posture—with\nagencies conveying the agency’s considered view of the\nsubject. Under the panel majority’s view, all those\ncommunications are discoverable because they would be the\nagency’s view, not an employee’s “personal view.”\n While the panel majority later assumed the deliberative\nprocess privilege applies, it’s clear that its misunderstanding\nof the subject derailed its decision to pierce the privilege. I\nturn to that next.\n B.\n Deliberative Process Privilege Was Not Overcome\n It’s well-settled that we start from the premise that\n“[d]eliberative documents, which are prepared to aid the\ndecision-maker in arriving at a decision, are ordinarily not\nrelevant” to assess the lawfulness of agency actions. Blue\nMountains Biodiversity Project, 99 F.4th at 445 (simplified).\nAfter all, the deliberative process privilege is no ordinary\nprivilege. A subset of the executive privilege, it derives from\nthe separation of powers and traces its roots to the very first\npresidential administration. Ignoring this background, the\npanel majority flipped any presumption of non-disclosure\nand sanctioned broad production of internal government\ndocuments on the flimsiest rationale.\n 1.\n Though not formally coined until the twentieth century,\nthe deliberative process privilege is a “form of executive\n\f28 AMERICAN FED’N OF GOV’T EMPLOYEES V. TRUMP\n\n\nprivilege.” In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir.\n1997); see also Cong. Requests for Confidential Exec.\nBranch Info., 13 Op. O.L.C. 153, 154 (1989) (describing\n“deliberative process” as a “generally-recognized\ncomponent[] of executive privilege”). Some trace the\nprivilege to “the principles underlying the English ‘crown\nprivilege,’” which protected “a wide range of governmental\ncommunications,” including “correspondence of or between\ngovernment officials.” Weaver & Jones, 54 Mo. L. Rev. at\n283; see also Kaiser Aluminum & Chem. Corp. v. United\nStates, 157 F. Supp. 939, 945 (Ct. Cl. 1958) (Reed, J., sitting\nby designation); but see Jonathan D. Shaub, The Executive’s\nPrivilege, 70 Duke L.J. 1, 15 (2020).\n As a component of executive privilege, the deliberative\nprocess privilege has its roots in Founding-era practice.\nAuth. of Agency Offs. to Prohibit Emps. from Providing Info.\nto Cong., 28 Op. O.L.C. 79, 83 (2004). For instance,\nPresident Washington asserted a privilege to withhold\ninternal documents in response to a congressional\ninvestigation. Id. President Washington’s Cabinet—\ncomposed of Thomas Jefferson, Alexander Hamilton,\nEdmund Randolph, and Henry Knox—all recognized the\nExecutive’s prerogative to withhold internal executive\nbranch materials “the disclosure of which would injure the\npublic.” Hist. of Refusals by Exec. Branch Offs. to Provide\nInfo. Demanded by Cong., 6 Op. O.L.C. 751, 752 (1982).\nAnd James Madison, then serving in the House of\nRepresentatives, recognized “that the Executive had a right”\n“to withhold information, when of a nature that did not\npermit a disclosure of it at the time.” Id. at 754 (quoting 5\nAnnals of Cong. 773 (1796)).\n Later presidents similarly invoked a privilege to\nwithhold certain intra-Executive Branch materials. Both\n\f AMERICAN FED’N OF GOV’T EMPLOYEES V. TRUMP 29\n\n\nThomas Jefferson and James Monroe invoked the privilege\nduring their terms in office. See Shaub, 70 Duke L.J. at 74–\n76; Weaver & Jones, 54 Mo. L. Rev. at 284–85. So did\nPresidents Andrew Jackson and Abraham Lincoln. 6 Op.\nO.L.C. at 756–58, 765–66.\n Executive privilege, then, is “implicit in [the\nConstitution’s] structure and supported by historical\npractice[.]” Franchise Tax Bd. of California v. Hyatt, 587\nU.S. 230, 247–48 (2019) (citing United States v. Nixon, 418\nU.S. 683, 705–06 (1974)). And because it is a part of\nexecutive privilege, the deliberative process privilege is\nsimilarly “grounded in the Constitution” and “derive[s] from\nthe separation of powers doctrine[.]” 3 Weinstein’s Evidence\n§ 509.21[3]; see also In re Sealed Case, 121 F.3d at 737 n.4.\n(D.C. Cir. 1997) (explaining that “aspects of the\nprivilege . . . have roots in the constitutional separation of\npowers.”).\n 2.\n Given its grounding in the separation of powers, it’s no\nwonder that the law ordinarily protects against the disclosure\nof predecisional, deliberative documents. Start with the\nnormal process. When a party challenges an agency action\nunder the APA, a reviewing court considers the “whole\nrecord.” 5 U.S.C. § 706. It is “well-settled” that “the whole\nrecord” is “the record the agency presents” as the\nadministrative record. Blue Mountains Biodiversity Project,\n99 F.4th at 444–45 (simplified); see also Oceana, Inc. v.\nRoss, 920 F.3d 855, 865 (D.C. Cir. 2019) (“[O]n APA\nreview, the agency must submit proper certification that the\nrecord is complete[.]”) (simplified). The scope of discovery\nis thus ordinarily limited to the administrative record. And\n\f30 AMERICAN FED’N OF GOV’T EMPLOYEES V. TRUMP\n\n\ninternal agency plans are generally not part of that record.\nSee Blue Mountains Biodiversity Project, 99 F.4th at 444.\n To get additional discovery, a plaintiff must make “a\nstrong showing of bad faith or improper behavior.” Dep’t of\nCommerce v. New York, 588 U.S. 752, 781 (2019)\n(simplified). In other words, extra-record discovery does not\noccur “absent impropriety or bad faith by the agency.” Blue\nMountains Biodiversity Project, 99 F.4th at 444. A plaintiff\nbears the burden of establishing bad faith. Dep’t of\nCommerce, 588 U.S. at 781. And even when the privilege is\novercome, courts have given “different treatment for\nmaterials reflecting deliberative or policy-making processes\non the one hand, and purely factual, investigative matters on\nthe other.” EPA v. Mink, 410 U.S. 73, 89 (1973).\n As this background shows, courts have demanded\nrestraint when ordering the production of internal Executive\nBranch materials. As we’ve said, while the deliberative\nprocess privilege is “not absolute,” it requires “careful\nconsideration” of the Executive’s interests “by the\njudiciary.” Karnoski v. Trump, 926 F.3d 1180, 1207 (9th\nCir. 2019). Thus, before overcoming the privilege, courts\nmust “giv[e] full consideration to the Executive’s Article II\nprerogatives.” Id. .\n The Supreme Court has also explained how to consider\nthe privilege in a strikingly similar case. See Cheney v. U.S.\nDist. Ct. for D.C., 542 U.S. 367 (2004). There, as here, the\ndistrict court ordered production of “everything under the\nsky” from the Vice President and other senior Government\nofficials about their service on a task force established to\ngive advice and make policy recommendations to the\nPresident. Cheney, 542 U.S. at 372, 385, 387. The Supreme\nCourt vacated an order denying mandamus, clarifying that\n\f AMERICAN FED’N OF GOV’T EMPLOYEES V. TRUMP 31\n\n\nthe Judiciary must recognize “the paramount necessity of\nprotecting the Executive Branch from vexatious litigation\nthat might distract it from the energetic performance of its\nconstitutional duties.” Id. at 382. Lower courts in that case\nfailed to understand that “special considerations control\nwhen the Executive Branch’s interests in maintaining the\nautonomy of its office and safeguarding the confidentiality\nof its communications are implicated.” Id. at 385. To\nrespect this, ordering discovery of internal Executive Branch\ndocuments should be avoided whenever possible and any\norder must be “narrow” and no broader than reasonably\nnecessary to serve its purpose. Id. at 386, 388.\n All we need to do is look back six months to see how the\nSupreme Court requires us to view the “special\nconsiderations” in ordering disclosure of the Executive’s\ndeliberative documents. See U.S. Doge Serv. v. Citizens for\nResp. and Ethics in Wash., 145 S. Ct. 1981, 1982 (2025).\n“[S]eparation of powers concerns,” the Court explained,\n“counsel judicial deference and restraint in the context of\ndiscovery regarding internal Executive Branch\ncommunications.” Id. Far from restrained, the district court\nthere ordered “disclos[ure] of the content of intra–Executive\nBranch recommendations and whether those\nrecommendations were followed[.]” Id. The discovery\norder was thus “not appropriately tailored.” Id. On remand,\nthe Supreme Court instructed the D.C. Circuit to “take\nappropriate action to narrow” the discovery order. Id. at\n1982. And though “interim orders” aren’t “conclusive as to\nthe merits,” the Supreme Court has warned that “they inform\nhow [lower] court[s] should exercise [their] equitable\ndiscretion in like cases.” Trump v. Boyle, 145 S. Ct. 2653,\n2654 (2025). We should have followed that admonition\nhere.\n\f32 AMERICAN FED’N OF GOV’T EMPLOYEES V. TRUMP\n\n\n 3.\n Return to this case. The panel majority first erred in\nviewing the deliberative process privilege overcome without\nany showing of bad faith or improper motive. And even if it\nwere overcome, the panel majority erred in not reigning in\nthe district court’s overly broad discovery order.\n First, the panel majority gave no “special\nconsideration[]” to the Executive Branch’s request to protect\nits internal communication, Cheney, 542 U.S. at 385—let\nalone established the “strong showing of bad faith or\nimproper behavior” necessary for extra-record discovery,\nDep’t of Commerce, 588 U.S. at 781 (simplified). Instead,\nthe panel majority discounted the government’s interests and\nimproperly shifted the burden to prove governmental harm.\nThe panel majority’s only consideration of the separation of\npowers focused on whether the government proved a\n“chilling effect on internal Executive Branch deliberations.”\nSee AFGE, 155 F.4th at 1092–93. Because in camera\nproduction of some internal RIF documents hadn’t yet\nproduced any “harm[,]” the panel majority concluded that\ndisclosure would not hinder internal agency communication.\nId.\n This is a myopic view of a separation-of-powers injury.\nAs we’ve recognized, “[i]t would be impossible to have any\nfrank discussions of legal or policy matters in writing if all\nsuch writings were to be subjected to public scrutiny.”\nUnited States v. Fernandez, 231 F.3d 1240, 1246 (9th Cir.\n2000) (simplified). Indeed, the government argues that it\n“cannot function if officials are worried” that their written\n“proposals and strategies for future staffing needs or for\nbudget talks with congressional appropriators” “may be\nshared on a whim, without need, and contrary to law and\n\f AMERICAN FED’N OF GOV’T EMPLOYEES V. TRUMP 33\n\n\nsettled practice.” The panel majority failed to show how this\ngovernment interest had been overcome here. Just because\nthe government didn’t provide evidence of instant harm by\nthe in camera production of some RIF plans, that doesn’t\nmean no harm would come to pass. And the panel majority\ncited no precedent showing that the government is only\nprotected by the privilege if it proves an immediate\ndemonstrable injury.\n Next, perhaps sensing the weakness of this position, the\npanel majority pivoted to claim that the normal rules for\nAPA review do not even apply because of the “sweep[] of\nactions undertaken by the government” without what it\nbelieves is “ordinary process.” AFGE, 155 F.4th at 1093.\nUnder this view, courts may disregard the settled rules for\ngovernment discovery whenever they consider disfavored\ngovernment action “sweep[ing]” or “massive.” Id. Never\nmind that the Supreme Court has already held that the\nExecutive Order and OMB/OPM guidance are likely to be\n“lawful.” Trump, 145 S. Ct. at 2635. And never mind that\nthe normal channel to challenge RIFs is before the Merit\nSystems Protection Board and the Federal Circuit. See\nAFGE, 139 F.4th at 1041 (Callahan, J., dissenting) (citing 5\nU.S.C. §§ 7701(a), 7703(b)(1); 5 C.F.R. § 351.901). Even\non the panel majority’s own terms, it’s odd to judicially\ncondone “departures from settled principles” in response to\nother “departures from settled principles.” AFGE, 155 F.4th\nat 1093. “Tit” for “tat” is no jurisprudential principle.\n And even if the privilege could be overcome here, the\ndistrict court’s discovery order still fails. At the very least,\nto protect the constitutional structure, federal courts must\nappropriately narrow discovery orders against the Executive\nBranch. But the discovery order is too broad twice over.\nFirst, the district court ordered production of internal RIF\n\f34 AMERICAN FED’N OF GOV’T EMPLOYEES V. TRUMP\n\n\nPlans for agencies that did not even implement a RIF. The\ndiscovery order applies to 21 federal agencies, although at\nleast 13 of those agencies had not yet implemented any RIFs\nor reorganizations according to Plaintiffs’ amended\ncomplaint. Second, the discovery order applies to\nunapproved internal RIF Plans, requiring disclosure of any\nplan simply submitted to OMB and OPM. So the district\ncourt’s discovery order applies to RIF plans never\nimplemented or approved by anyone. Thus, the discovery\norder fails under its own logic and it is neither “appropriately\ntailor[ed]” nor “restrained” as the Supreme Court requires.\nSee U.S. Doge Serv., 145 S. Ct. at 1982.\n C.\n Ultra Vires Claim Is No Password For Unlimited\n Discovery\n The panel decision is wrong for another reason: it\napproves a roadmap for getting around the APA’s ordinary\ndiscovery limits. As an alternative to its APA ruling, the\npanel majority justified the district court’s broad extra-\nrecord discovery order by invoking Plaintiffs’ ultra vires\nclaim. Because Plaintiffs challenged the RIF Plans “as\nexceeding unlawful authority and therefore ultra vires,” the\npanel majority ruled, without citation, that “[r]eview of an\nultra vires challenge would not be limited to an\nadministrative record.” AFGE, 155 F.4th at 1093. The panel\nmajority thus endorsed a fishing expedition for Executive\nBranch materials by mere invocation of an ultra vires claim.\n But “ultra vires” is not a magic word for getting around\nthe APA’s limitations. See Blue Mountains Biodiversity\nProject, 99 F.4th at 444–45 (articulating the settled APA\ndiscovery limits). In fact, the Supreme Court has recently\nwarned that “ultra vires review could become an easy end-\n\f AMERICAN FED’N OF GOV’T EMPLOYEES V. TRUMP 35\n\n\nrun around” normal judicial review statutes like the APA.\nNuclear Regul. Comm’n v. Texas, 605 U.S. 665, 681 (2025).\nTo avoid this possibility, the Supreme Court has “strictly\nlimited nonstatutory ultra vires review,” narrowing it to\n“only” those times an agency has acted “contrary to a\nspecific prohibition in a statute” and when statutory review\nschemes like the APA do not provide “a meaningful and\nadequate opportunity for judicial review.” Id. (simplified);\nsee also Boire v. Greyhound Corp., 376 U.S. 473, 481 (1964)\n(describing the limits of post-APA ultra vires review as\n“painstakingly delineated procedural boundaries”). In this\nway, an ultra vires claim “is essentially a Hail Mary pass—\nand in court as in football, the attempt rarely succeeds.”\nNuclear Regul. Comm’n, 605 U.S. at 681–82.\n This case shows why the Supreme Court’s fear is well-\nfounded. Plaintiffs’ ultra vires claim is nearly identical to\ntheir APA claim that OMB, OPM, and DOGE acted “in\nexcess of statutory . . . authority” in violation of 5 U.S.C.\n§ 706(2)(C). Plaintiffs do not allege any specific statutory\nprohibition in their ultra vires claim that would qualify for\nthe “strictly limited role” ultra vires review plays in a post-\nAPA world and they haven’t established why the APA\ndoesn’t offer meaningful judicial review. And yet, Plaintiffs\nnow get extra-record discovery of internal Executive Branch\nplanning documents courtesy of the panel majority.\n On the panel majority’s reasoning, whenever a party\nwants extra-record discovery, it could attach an ultra vires\nclaim to its complaint in addition to the APA claims. Want\nto avoid the APA’s discovery limits? No worries. Just add\nthe words “ultra vires” to your complaint and, voilà, you get\nextra-record discovery without needing to establish an\nexception to the normal APA discovery limits. By turning a\nHail Mary pass into a screen pass, the majority approves “an\n\f36 AMERICAN FED’N OF GOV’T EMPLOYEES V. TRUMP\n\n\neasy end-run around” the APA. Nuclear Regul. Comm’n,\n605 U.S. at 681. We should have taken this case en banc to\nensure that ultra vires challenges are not an exception to the\nAPA’s discovery limits.\n III.\n Our respect for the Constitution demands that we treat\nthe internal deliberative documents of a co-equal branch of\ngovernment with appropriate care. We don’t cavalierly\nintrude on those communications because we disfavor the\ngovernment’s actions or believe it could have managed\nthings differently. Because the panel majority’s decision\nordered the production of internal government plans,\nproposals, and recommendations without special\nconsideration for the separation of powers, I respectfully\ndissent.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11235508/", "author_raw": "Statement by Judge W. Fletcher"}]}	WILLIAM A FLETCHER	JOHNNIE B RAWLINSON	WILLIAM FLETCHER	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10768923/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,769,643	Union Gospel Mission of Yakima Washington v. Brown	2026-01-06	24-7246	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Johnnie B. Rawlinson, Daniel A. Bress, and Patrick J. Bumatay, Circuit Judges.", "parties": "", "opinions": [{"author": "BUMATAY, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\nUNION GOSPEL MISSION OF No. 24-7246\nYAKIMA WASHINGTON,\n D.C. No.\n 1:23-cv-03027-\n Plaintiff - Appellee,\n MKD\n v.\n OPINION\nNICK BROWN, in his official\ncapacity as Attorney General of\nWashington State; ANDRETA\nARMSTRONG, in her official\ncapacity as Executive Director of the\nWashington State Human Rights\nCommission; DEBORAH COOK, in\nher official capacity as Commissioner\nof the Washington State Human\nRights Commission; GUADALUPE\nGAMBOA, in her official capacity as\nCommissioner of the Washington\nState Human Rights Commission;\nJEFF SBAIH, in his official capacity\nas Commissioner of the Washington\nState Human Rights Commission;\nHAN TRAN, in his official capacity\nas Commissioner of the Washington\nState Human Rights Commission,\n\n Defendants - Appellants.\n\f2 UNION GOSPEL MISSION OF YAKIMA WA V. BROWN\n\n\n Appeal from the United States District Court\n for the Eastern District of Washington\n Mary K. Dimke, District Judge, Presiding\n\n Argued and Submitted June 3, 2025\n Seattle, Washington\n\n Filed January 6, 2026\n\nBefore: Johnnie B. Rawlinson, Daniel A. Bress, and Patrick\n J. Bumatay, Circuit Judges.\n\n Opinion by Judge Bumatay\n\n\n SUMMARY \n\n\n First Amendment/Church Autonomy Doctrine\n\n The panel affirmed the district court’s preliminary\ninjunction prohibiting the enforcement of the Washington\nLaw Against Discrimination (“WLAD”) against the Union\nGospel Mission of Yakima, Washington —a Christian\nministry—for preferring and hiring co-religionists for non-\nministerial roles.\n WLAD prohibits employment discrimination based on\nseveral protected grounds, including sexual\norientation. Because of its religious purpose, Union Gospel\nrequires its employees to agree with and live out its Christian\n\n\n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\f UNION GOSPEL MISSION OF YAKIMA WA V. BROWN 3\n\n\nbeliefs and practices, including “abstaining from any sexual\nconduct outside of biblical marriage between one man and\none woman.” Union Gospel brought this pre-enforcement\naction against the Washington State Attorney General and\nthe Washington State Human Rights Commission, alleging\nviolations of the First Amendment and requesting an\ninjunction prohibiting defendants from enforcing WLAD\nagainst it.\n The panel held that Union Gospel is likely to succeed on\nthe merits of its claim that enforcing WLAD against it for\nhiring only co-religionists violates the church autonomy\ndoctrine, as established by the First Amendment’s Religion\nClauses. The church autonomy doctrine encompasses more\nthan just the ministerial exception. It forbids interference\nwith “an internal church decision that affects the faith and\nmission of the church itself.” In this case, Union Gospel’s\nco-religionist hiring policy constitutes an internal\nmanagement decision that is essential to the institution’s\ncentral mission. It is uncontested that (1) Union Gospel is a\nreligious institution, (2) Union Gospel has a sincerely held\nreligious belief that only co-religionists may advance its\nreligious mission, and (3) Union Gospel’s co-religionist\nhiring policy is based on that religious belief.\n Under the church autonomy doctrine, Union Gospel may\ndecline to hire as non-ministerial employees those who do\nnot share its religious beliefs about marriage and\nsexuality. But unlike the ministerial exception, the church\nautonomy doctrine protects only Union Gospel’s non-\nministerial hiring decisions based on religious\nbeliefs. Union Gospel cannot discriminate on any other\nground. The panel emphasized that its decision was limited\nto religious organizations like Union Gospel and that it did\nnot consider the scope of the doctrine on other types of\n\f4 UNION GOSPEL MISSION OF YAKIMA WA V. BROWN\n\n\nentities run by religious institutions, such as businesses or\nhospitals.\n The panel held that the remaining preliminary injunction\nfactors—irreparable harm, the public interest and balance of\nthe equities—favored Union Gospel.\n\n\n\n COUNSEL\n\nJeremiah Galus (argued), Katherine L. Anderson, and Ryan\nJ. Tucker, Alliance Defending Freedom, Scottsdale,\nArizona; David A. Cortman and John J. Bursch, Alliance\nDefending Freedom, Washington, D.C.; James A. Campbell\nand Jacob E. Reed, Alliance Defending Freedom,\nLansdowne, Virginia; David K. Dewolf, Albrecht Law\nPLLC, Spokane Valley, Washington; for Plaintiff-Appellee.\nCynthia L. Alexander (argued) and Tera M. Heintz, Deputy\nSolicitors General; Nicholas W. Brown & Robert W.\nFerguson, Washington Attorneys General; Office of the\nWashington Attorney General, Olympia, Washington;\nDaniel Jeon and David Ward, Assistant Attorneys General,\nOffice of the Washington Attorney General, Seattle,\nWashington; for Defendants-Appellants.\nAnastasia R. Sandstrom, Senior Counsel; Robert W.\nFerguson, Washington Attorney General, Office of the\nWashington Attorney General, Seattle, Washington, for\nAmicus Curiae Washington State Department of Labor &\nIndustries.\nJoshua A. Block and Louise Melling, American Civil\nLiberties Union Foundation, New York, New York; Aditi\nFruitwala and Daniel Mach, American Civil Liberties Union\n\f UNION GOSPEL MISSION OF YAKIMA WA V. BROWN 5\n\n\nFoundation, Washington, D.C.; Adrien Leavitt and La Rond\nBaker, American Civil Liberties Union of Washington\nFoundation, Seattle, Washington; Alex Luchenitser and\nJenny Samuels, Americans United for Separation of Church\nand State, Washington, D.C.; for Amici Curiae American\nCivil Liberties Union, American Civil Liberties Union of\nWashington, and Americans United for Separation of\nChurch and State.\nIan S. Speir I, Covenant Law PLLC, Colorado Springs,\nColorado, for Amici Curiae Colson Center for Christian\nWorldview, et al..\nVince R. Eisinger, Cranfill Sumner LLP, Raleigh, North\nCarolina, for Amici Curiae Professors Stephanie Barclay,\nRobert F. Cochran Jr., David F. Forte, Richard Garnett,\nDouglas Laycock, Michael W. McConnell, and Robert J.\nPushaw.\nMichael P. Farris, National Religious Broadcasters,\nWashington, D.C., for Amicus Curiae National Religious\nBroadcasters.\nRandall L. Wenger, Jeremy L. Samek, and Janice Martino-\nGottshall, Independence Law Center, Harrisburg,\nPennsylvania; Deborah J. Dewart, Hubert, North Carolina;\nfor Amicus Curiae Wyoming Rescue Mission.\nPeter M. Torstensen Jr., Deputy Solicitor General; Christian\nB. Corrigan, Solicitor General; Austin Knudsen, Montana\nAttorney General; Office of the Montana Attorney General,\nHelena, Montana; Steve Marshal, Alabama Attorney\nGeneral, Office of the Alabama Attorney General,\nMontgomery, Alabama; Tim Griffin, Arkansas Attorney\nGeneral, Office of the Arkansas Attorney General, Little\nRock, Arkansas; John Guard, Florida Acting Attorney\n\f6 UNION GOSPEL MISSION OF YAKIMA WA V. BROWN\n\n\nGeneral, Office of the Florida Attorney General,\nTallahassee, Florida; Raul R. Labrador, Idaho Attorney\nGeneral, Office of the Idaho Attorney General, Boise, Idaho;\nBrenna Bird, Iowa Attorney General, Office of the Iowa\nAttorney General, Des Moines, Iowa; Kris Kobach, Kansas\nAttorney General, Office of the Kansas Attorney General,\nTopeka, Kansas; Liz Murrill, Louisiana Attorney General,\nOffice of the Louisiana Attorney General, Baton Rouge,\nLouisiana; Lynn Fitch, Mississippi Attorney General, Office\nof the Mississippi Attorney General, Jackson, Mississippi;\nAndrew Bailey, Missouri Attorney General, Office of the\nMissouri Attorney General, Jefferson City, Missouri;\nMichael T. Hilgers, Nebraska Attorney General, Office of\nthe Nebraska Attorney General, Lincoln, Nebraska; Dave\nYost, Ohio Attorney General, Office of the Ohio Attorney\nGeneral, Columbus, Ohio; Gentner F. Drummond,\nOklahoma Attorney General, Office of the Oklahoma\nAttorney General, Oklahoma City, Oklahoma; Alan Wilson,\nSouth Carolina Attorney General, Office of the South\nCarolina Attorney General, Columbia, South Carolina;\nMarty J. Jackley, South Dakota Attorney General, Office of\nthe South Dakota Attorney General, Pierre, South Dakota;\nJonathan Skrmetti, Tennessee Attorney General, Office of\nthe Tennessee Attorney General, Nashville, Tennessee; Ken\nPaxton, Texas Attorney General, Office of the Texas\nAttorney General, Austin, Texas; Derek E. Brown, Utah\nAttorney General, Office of the Utah Attorney General, Salt\nLake City, Utah; Jason Miyares, Virginia Attorney General,\nOffice of the Virginia Attorney General, Richmond,\nVirginia; John B. McCuskey, West Virginia Attorney\nGeneral, Office of the West Virginia Attorney General,\nCharleston, West Virginia; for Amici Curiae State of\nMontana and 19 Other States.\n\f UNION GOSPEL MISSION OF YAKIMA WA V. BROWN 7\n\n\nSteven T. McFarland, Christian Legal Society Center for\nLaw & Religious Freedom, Springfield, Virginia, for Amici\nCuriae Christian Legal Society, the Center for Public Justice,\nthe Christian Medical and Dental Associations, Citygate\nNetwork, CRISTA Ministries, the General Conference of\nSeventh-Day Adventists, the Institutional Religious\nFreedom Alliance, and the Islam and Religious Freedom\nAction Team of the Religious Freedom Institute.\nJohn T. Melcon, Taylor Huse, and Stuart Lark, Taft\nStettinius & Hollister LLP, Colorado Springs, Colorado, for\nAmici Curiae the Christian and Missionary Alliance,\nCouncil for Christian Colleges and Universities, Grace to\nYou, Eco, A Covenant Order of Evangelical Presbyterians,\nChurch Educational System of the Church of Jesus Christ of\nLatter-Day Saints, Alliance Redwoods Conference Grounds,\nthe Master's University and Seminary, Town & Country\nManor of the Christian and Missionary Alliance, and the\nFuller Foundation.\nEric N. Kniffin, Ethics & Public Policy Center, Colorado\nSprings, Colorado, for Amicus Curiae Ethics & Public\nPolicy Center.\nGeorge M. Ahrend, Ahrend Law Firm PLLC, Spokane,\nWashington, for Amici Curiae American Association of\nChristian Schools, Association for Biblical Higher\nEducation, Association of Christian Schools International,\nand Association of Classical Christian Schools.\n\f8 UNION GOSPEL MISSION OF YAKIMA WA V. BROWN\n\n\n OPINION\n\nBUMATAY, Circuit Judge:\n\n The Religion Clauses of the First Amendment protect\nreligious institutions from government interference over\ntheir internal affairs involving faith and doctrine. Known as\nthe church autonomy doctrine, the Clauses work in tandem\nto prohibit state meddling in the religious matters of\nreligious organizations. Under the ministerial exception, the\nchurch autonomy doctrine bars the government from\nintruding in religious organizations’ choice of ministers and\nclergy. The freedom of religious institutions to establish\ntheir own doctrine and faith is so fundamental that they may\ncategorically hire and fire their ministers without regard to\nanti-discrimination laws—even if the termination is for non-\nreligious reasons. Simply, the government has no business\nin policing who spreads the word on behalf of churches,\nsynagogues, mosques, religious organizations, and other\nsimilar institutions.\n But the church autonomy doctrine is not so narrowly\ndrawn. The First Amendment may also shield religious\ninstitutions’ hiring of non-ministerial employees when it\ninvolves matters of faith and doctrine. For example, a\nreligious institution may decide that its religious mission is\nbest served by hiring only employees who adhere to and\nfollow its religious beliefs—even for those not acting in\nministerial roles. The religious institution may also believe\nthat it can more effectively promote its view of moral and\nspiritual well-being if its own employees do not lead lives\ncontrary to the institution’s teachings. And a religious\ninstitution may conclude that it would undermine the\ninstitution’s identity and mission as a religious organization\n\f UNION GOSPEL MISSION OF YAKIMA WA V. BROWN 9\n\n\nif its own employees contradict or disavow the tenets it\nteaches.\n Hiring based on religious criteria may conflict with laws\nprohibiting employment decisions based on protected\ncharacteristics. Ordinarily, even religious institutions must\nfollow generally applicable employment laws. But if state\nlaw were to prevent religious institutions from employing\nonly co-religionists, those institutions could be forced to hire\nemployees who openly flout and disagree with their religious\nprinciples. This, the First Amendment doesn’t tolerate.\nBecause who a religious organization hires may go to the\nvery character of its religious mission, the church autonomy\ndoctrine protects the decision to hire co-religionists for non-\nministerial roles if that decision is based on the\norganization’s sincerely held religious beliefs.\n Applying these principles, we hold that the district court\ncorrectly enjoined enforcing the Washington Law Against\nDiscrimination against Union Gospel Mission of Yakima,\nWashington—a Christian ministry—for preferring and\nhiring co-religionists for non-ministerial roles. This is a\nnarrow ruling. Under the church autonomy doctrine, Union\nGospel may decline to hire as non-ministerial employees\nthose who do not share its religious beliefs about marriage\nand sexuality. But unlike with the ministerial exception, the\nchurch autonomy doctrine only protects Union Gospel’s\nnon-ministerial hiring decisions based on religious beliefs.\nSo Union Gospel cannot discriminate on any other ground.\nAnd our decision is limited to religious organizations like\nUnion Gospel. We do not consider the scope of the doctrine\non other types of entities run by religious institutions, such\nas businesses or hospitals.\n\f10 UNION GOSPEL MISSION OF YAKIMA WA V. BROWN\n\n\n Finally, and importantly, we emphasize that what Union\nGospel seeks here is already protected under Title VII of the\nCivil Rights Act, 42 U.S.C. § 2000e-1(a) and many other\nstate anti-discrimination laws, which likewise exempt\nreligious organizations from general prohibitions on\nreligious discrimination. Indeed, we address this question\nhere only because Washington has narrowly construed a\nsimilar exemption in its own anti-discrimination law. But\nWashington cannot override the First Amendment’s church\nautonomy doctrine, and so the district court’s injunction\nmust be affirmed.\n I.\n Background\n A.\n The Washington Law Against Discrimination\n(“WLAD”) prohibits employment discrimination based on\nseveral protected grounds, including sexual orientation. See\nWash. Rev. Code §§ 49.60.030(1)(a), 49.60.180(1)-(3).\nSince its enactment in 1949, WLAD establishes that,\n\n It is an unfair practice for any employer: To\n refuse to hire any person because of . . .\n sexual orientation. . . . To discharge or bar\n any person from employment because of . . .\n sexual orientation. . . . To discriminate\n against any person in compensation or in any\n other terms or conditions of employment\n because of . . . sexual orientation.\n\nId. § 49.60.180(1)-(3). WLAD defines “sexual orientation”\nto mean “heterosexuality, homosexuality, bisexuality, and\ngender expression or identity.” Id. § 49.60.040(29). The\n\f UNION GOSPEL MISSION OF YAKIMA WA V. BROWN 11\n\n\nlaw further prohibits employers from inquiring into\nprotected grounds or from publishing job advertisements\ncontaining hiring limitations based on protected grounds. Id.\n§ 49.60.180(4). WLAD also prevents employers from\n“[r]equir[ing] an employee to disclose his or her sincerely\nheld religious affiliation or beliefs.” Id. § 49.60.208(1).\n WLAD empowers the Washington State Human Rights\nCommission to investigate and evaluate complaints filed by\naggrieved parties. Id. §§ 49.60.120(4), 49.60.140,\n49.60.230. At the Commission’s discretion, complaints can\nbe resolved through “conference, conciliation, and\npersuasion” or, failing that, through an enforcement action\nbefore an administrative law judge. Id. §§ 49.60.240(3),\n49.60.250. The attorney general may also enforce WLAD.\nSee State v. Sunnyside, 550 P.3d 31, 41-45 (Wash. 2024) (en\nbanc). So can private parties. Wash. Rev. Code\n§ 49.60.030(2).\n By its terms, WLAD exempts nonprofit religious\norganizations from its definition of “employer.” Id.\n§ 49.60.040(11) (“Employer . . . does not include any\nreligious or sectarian organization not organized for private\nprofit.”). In 2021, however, the Washington Supreme Court\ninterpreted this exemption narrowly to avoid a perceived\nconflict with the state constitution’s Privileges and\nImmunities Clause. See Woods v. Seattle’s Union Gospel\nMission, 481 P.3d 1060, 1067 (Wash. 2021) (en banc), cert.\ndenied, 142 S. Ct. 1094 (2022) (limiting the protection to\n“ministers” as defined in the U.S. Supreme Court’s First\nAmendment jurisprudence). So after the Washington\nSupreme Court’s decision, WLAD applies to nonprofit\nreligious organizations in their hiring of non-ministerial\nemployees.\n\f12 UNION GOSPEL MISSION OF YAKIMA WA V. BROWN\n\n\n The Union Gospel Mission of Yakima is a private,\nnonprofit religious organization whose mission is to “spread\nthe Gospel of the Lord Jesus Christ.” By its constitution and\nbylaws, Union Gospel provides “Christ[-]centered rescue,\nrecovery and restoration to men, women and children in\nneed.” Union Gospel also seeks to “follow Christ” by\n“helping people move from homelessness to wholeness.” To\nthese ends, it operates a homeless shelter, faith-based\nrecovery programs, health clinics, and meal services.\nAccording to Union Gospel, in one year, it provided 30,167\nnights of shelter to adults and children, gave out 141,629 free\nmeals, and helped dozens regain sobriety.\n Union Gospel maintains that its religious purpose infuses\nall its work. It encourages everyone that it helps to “develop\na relationship with Jesus Christ”—thus, the Gospel is shared\nwith “everyone at all times.” To Union Gospel, “spiritual\nwelfare carries more weight than physical assistance.”\n Because of its religious purpose, Union Gospel requires\nits employees to agree with and live out its Christian beliefs\nand practices, including “abstaining from any sexual conduct\noutside of biblical marriage between one man and one\nwoman.” It expects its employees to further its evangelical\nmission and provide an example to others of a proper\nChristian life. To help facilitate this fellowship, employees\nattend daily prayers and weekly chapel services, and are\nencouraged and expected to pray for one another and share\ndevotionals.\n Before applying for a job with Union Gospel, the\norganization notifies applicants of its religious mission and\nits requirement that its employees comply with its religious\ntenets. On receiving an offer of employment, applicants\nmust sign and agree to comply with Union Gospel’s\n\f UNION GOSPEL MISSION OF YAKIMA WA V. BROWN 13\n\n\nstatement of faith, core values, and job duties and\nrequirements. Every year, Union Gospel receives\napplications from those who express disagreement with—\nand sometimes hostility to—its religious beliefs, particularly\nthose about marriage and sexuality. Union Gospel screens\nout those applications.\n Ordinarily, Union Gospel operates with just over 150\nemployees. In 2023, when this litigation started, Union\nGospel anticipated needing to fill more than 50 positions,\nincluding an IT technician and an operations assistant. The\nIT technician serves the IT needs of Union Gospel’s\nemployees, such as configuring and troubleshooting\ncomputers, printers, and phones; assisting employees with\nhardware and software issues; and creating keycards and\noperating the access control system. Likewise, the\noperations assistant serves a traditional administrative\nrole—running errands and acquiring supplies, performing\nadministrative tasks, and generally helping the\norganization’s operations. Neither the IT technician nor\noperations assistant act as official clergy for the organization\nand their roles are mostly “inward” facing—largely assisting\nUnion Gospel employees, not the members of the public\nhelped by the organization. Because of this, Union Gospel\ndoesn’t consider these jobs as ministerial positions and\ndoesn’t claim them to be protected by any ministerial\nexception.\n B.\n In early March 2023, Union Gospel brought this pre-\nenforcement action against the Washington State Attorney\nGeneral and the Washington State Human Rights\nCommission (collectively, “the State”). Union Gospel\nsought a declaratory judgment that WLAD violated its First\n\f14 UNION GOSPEL MISSION OF YAKIMA WA V. BROWN\n\n\nAmendment rights of (1) hiring only co-religionists for non-\nministerial positions, (2) free exercise, (3) expressive\nassociation, (4) free speech, and (5) freedom from excessive\ngovernmental entanglement. It also requested an injunction\nprohibiting the State from enforcing WLAD against it.\n The district court first dismissed Union Gospel’s\ncomplaint for lack of standing and denied its motion for a\npreliminary injunction as moot. Union Gospel appealed, and\nwe concluded that Union Gospel’s claims satisfied Article\nIII standing and remanded to the district court. See Union\nGospel Mission of Yakima v. Ferguson, 2024 WL 3755954,\nat 1–3 (9th Cir. Aug. 12, 2024). On remand, the district\ncourt held that Union Gospel was likely to succeed on the\nmerits of its free exercise claim. It ruled that WLAD treats\nother secular employers—small businesses—more\nfavorably and thus must satisfy strict scrutiny under Tandon\nv. Newsom, 593 U.S. 61, 62 (2021) (per curiam). Under\nstrict scrutiny, the district court concluded that the law was\nnot the least restrictive means available to the State and that\nit was impermissibly underinclusive. It then entered a\npreliminary injunction, enjoining the State from enforcing\nWLAD against Union Gospel for preferring and hiring only\nco-religionists for its non-ministerial positions.\n The State now appeals.\n II.\n Justiciability\n Before turning to the merits, we start with the State’s\njusticiability arguments. The State argues that Union Gospel\nnow lacks standing to obtain a preliminary injunction\nbecause it has expressly disclaimed enforcement of WLAD\n\f UNION GOSPEL MISSION OF YAKIMA WA V. BROWN 15\n\n\nagainst Union Gospel for its hiring of an IT technician or\noperations assistant. We disagree.\n Because “standing is determined as of the\ncommencement of litigation,” Yamada v. Snipes, 786 F.3d\n1182, 1203 (9th Cir. 2015) (simplified), we take the State’s\nargument to be grounded in mootness doctrine. A claim is\nmoot if it “has lost its character as a present, live\ncontroversy.” Flint v. Dennison, 488 F.3d 816, 823 (9th Cir.\n2007) (simplified). “The basic question is whether there\nexists a present controversy as to which effective relief can\nbe granted.” Vill. of Gambell v. Babbitt, 999 F.2d 403, 406\n(9th Cir. 1993) (simplified). “Defendants bear a heavy\nburden to establish mootness at the appellate stage.” Ctr. for\nBiological Diversity v. Exp.-Imp. Bank of the United States,\n894 F.3d 1005, 1011 (9th Cir. 2018) (simplified). It must be\n“absolutely clear that [the defendant’s] allegedly wrongful\nbehavior could not reasonably be expected to recur.”\nFriends of the Earth, Inc. v. Laidlaw Env’t Servs., Inc., 528\nU.S. 167, 189 (2000).\n After the case was remanded to the district court but\nbefore entry of the preliminary injunction, the State\nstipulated that it will not enforce WLAD against Union\nGospel in connection with the hiring of the positions\nexplicitly referenced in its complaint—the IT technician and\noperations assistant positions. The State argues that this\nstipulation moots this case. But this disavowal provides little\nassurance to Union Gospel. It only covers two positions, and\nthe State has expressly refused to disavow enforcing WLAD\nagainst Union Gospel for the hiring of other non-ministerial\npositions. Recall that Union Gospel anticipated needing 50\nnew hires in 2023. Open positions included a wide range of\nnon-ministerial roles, such as people to work at its thrift\nstores, to run its soup kitchens, and to help provide its\n\f16 UNION GOSPEL MISSION OF YAKIMA WA V. BROWN\n\n\nhealthcare services. Thus, while we may take the State at its\nword that it won’t sue Union Gospel for hiring its IT and\noperations support roles, the State has not confirmed what it\nwill do if Union Gospel seeks to fill its cashiers, cooks, or\nnurses roles with members of its religion.\n So the State’s disavowal does not grant Union Gospel the\nrelief it seeks. Union Gospel sought assurances that it could\nprefer and hire co-religionists for all its non-ministerial\npositions without threat of a WLAD investigation. The\nexamples of the IT technician and operations assistant\nopenings in its complaint are only that—examples of the\ntype of positions Union Gospel sought to hire. The\ncomplaint didn’t limit Union Gospel’s requested relief to\nthese particular positions. Because the threat of state\nenforcement of WLAD for many non-ministerial positions\nstill exists, Union Gospel’s requested relief can still be\ngranted. And because effective relief can be granted, this\ncase is not moot.\n III.\n Preliminary Injunction Factors\n We now turn to the merits of the disputed preliminary\ninjunction. Under the familiar preliminary injunction\nfactors, a plaintiff must establish (1) a likelihood of success\non the merits, (2) likely irreparable harm absent an\ninjunction, (3) that the equities tip in his favor, and (4) that\nan injunction benefits the public interest. Fellowship of\nChristian Athletes v. San Jose Unified Sch. Dist. Bd. of\nEduc., 82 F.4th 664, 683–84 (9th Cir. 2023) (en banc).\nWhen a government entity opposes injunctive relief, “the\nthird and fourth factors—the balance of equities and the\npublic interest—merge.” Id. at 695 (simplified). We review\n\f UNION GOSPEL MISSION OF YAKIMA WA V. BROWN 17\n\n\nthe grant of a preliminary injunction for abuse of discretion.\nId. at 680.\n A.\n Likelihood of Success on the Merits\n While the district court concluded that Union Gospel was\nlikely to succeed on the merits of its free exercise claim\nunder Tandon, we affirm because Union Gospel is likely to\nsucceed under the church autonomy doctrine. See Enyart v.\nNat’l Conf. of Bar Exam’rs, Inc., 630 F.3d 1153, 1159 (9th\nCir. 2011) (“We may affirm . . . on any ground supported by\nthe record.”).\n Whether the church autonomy doctrine permits a\nreligious institution to favor co-religionists in its hiring of\nnon-ministerial employees is largely a question of first\nimpression. That’s likely because “Congress has long\nexempted religious employers from federal employment\nlaws that would otherwise interfere with their ability ‘to\ndefine and carry out their religious missions’ by imposing\n‘potential liability’ for hiring practices that favor co-\nreligionists.” See Seattle’s Union Gospel Mission v. Woods,\n142 S.Ct. 1094, 1094 (2022) (Alito, J., respecting the denial\nof certiorari) (quoting Corp. of Presiding Bishop of Church\nof Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327,\n335–36 (1987)). Because of “federal statutory exemptions\nand their state analogs,” the Supreme Court has “yet to\nconfront whether freedom for religious employers to hire\ntheir co-religionists is constitutionally required.” Id.\nAlthough the WLAD contains a similar exemption for\nreligious employers as federal law, the Washington Supreme\nCourt narrowly limited that exemption to ministers to avoid\nwhat it concluded would be a conflict with the State’s\nconstitution. See id. at 1094, 1096. Thus, while the church\n\f18 UNION GOSPEL MISSION OF YAKIMA WA V. BROWN\n\n\nautonomy doctrine protects Union Gospel’s hiring of co-\nreligionists over and above the WLAD, this protection\noverlaps considerably with what it would have already\nenjoyed under federal and state employment laws.\n We first consider the church autonomy doctrine’s scope\nin the hiring context and then apply the doctrine to Union\nGospel’s claims.\n i.\n Church Autonomy Doctrine\n a.\n The Doctrine’s Deep Roots\n The First Amendment’s Establishment Clause and Free\nExercise Clause bar laws “respecting an establishment of\nreligion, or prohibiting the free exercise thereof.” U.S.\nConst. amend. I. From this wellspring, the Religion Clauses\nestablish the church autonomy doctrine. Under the doctrine,\nreligious institutions have “the right . . . ‘to decide for\nthemselves, free from state interference, matters of church\ngovernment as well as those of faith and doctrine.’” Our\nLady of Guadalupe Sch. v. Morrissey-Berru, 591 U.S. 732,\n736 (2020) (quoting Kedroff v. Saint Nicholas Cathedral of\nRussian Orthodox Church in N. Am., 344 U.S. 94, 116\n(1952)). That’s because the Free Exercise Clause guarantees\nreligious groups the right “to shape [their] own faith and\nmission,” Hosanna-Tabor Evangelical Lutheran Church &\nSch. v. EEOC, 565 U.S. 171, 188 (2012), and the\nEstablishment Clause “prohibits government involvement in\n. . . ecclesiastical decisions,” id. at 189. So any government\ninterference with matters of faith and doctrine both\n“violate[s] the free exercise of religion” and “constitute[s]\none of the central attributes of an establishment of religion.”\n\f UNION GOSPEL MISSION OF YAKIMA WA V. BROWN 19\n\n\nOur Lady of Guadalupe, 591 U.S. at 746. Simply, the\nReligion Clauses take “matters of faith and doctrine” out of\nthe sphere of “government intrusion.” Id. (simplified).\n The church autonomy doctrine has deep roots in our\nNation’s historical tradition. See Hosanna-Tabor, 565 U.S.\nat 182–85; see also Cath. Charities Bureau, Inc. v. Wisc.\nLab. & Indus. Rev. Comm’n, 605 U.S. 238, 257 (2025)\n(Thomas, J. concurring). And the Supreme Court first\nexamined the doctrine over 150 years ago. See Watson v.\nJones 80 U.S. (13 Wall.) 679, 733–34 (1871). That case\ninvolved a congregational schism and dispute over the right\nto use church property. Id. at 726. Watson noted that when\na matter “concerns theological controversy, church\ndiscipline, ecclesiastical government, or the conformity of\nthe members of the church to the standard of morals required\nof them,” courts may not get involved. Id. at 733. So courts\nmust abstain from deciding “questions of discipline, or of\nfaith, or ecclesiastical rule, custom, or law.” Id. at 727.\n The Court revisited the doctrine 80 years later. Kedroff,\n344 U.S. at 116. Kedroff tied the church autonomy doctrine\nto the First Amendment—recognizing it as “part of the free\nexercise of religion.” Id. It recognized the constitutional\nmoorings of the Watson holding, explaining that the doctrine\n“radiate[d] . . . a spirit of freedom for religious organizations,\nan independence from secular control or manipulation,” and\nprovided churches the “power to decide for themselves, free\nfrom state interference, matters of church government as\nwell as those of faith and doctrine.” Id.\n Almost 50 years ago, the Court emphasized that, under\nthe Constitution, “religious controversies are not the proper\nsubject of civil court inquiry.” Serbian E. Orthodox Diocese\nv. Milivojevich, 426 U.S. 696, 713 (1976). Instead, “the First\n\f20 UNION GOSPEL MISSION OF YAKIMA WA V. BROWN\n\n\nand Fourteenth Amendments permit hierarchical religious\norganizations to establish their own rules and regulations for\ninternal discipline and government” and “the Constitution\nrequires that civil courts accept their decisions as binding\nupon them.” Id. at 724–25.\n And more recently, in considering the ministerial\nexception, the Court reaffirmed the doctrine in Hosanna-\nTabor and Our Lady of Guadalupe. See 565 U.S. at 185–90;\n591 U.S. at 746–51.\n Thus, it’s well established that the church autonomy\ndoctrine protects religious institutions’ independence in\nmatters of faith and doctrine.\n Today, the church autonomy doctrine is most often\ninvoked in the employment context. It is widely recognized\nthat religious institutions may appoint their spiritual leaders\nand clergy without any government interference. See\nHosanna-Tabor, 565 U.S. at 185–88. Under this\n“ministerial exception,” “it is impermissible for the\ngovernment to contradict a church’s determination of who\ncan act as its ministers.” Id. at 185. So religious institutions\nmay select or terminate their ministers regardless of any\nfederal or state employment laws. See id.; see also Our\nLady of Guadalupe, 591 U.S. at 747 (“[A] church’s\nindependence on matters ‘of faith and doctrine’ requires the\nauthority to select, supervise, and if necessary, remove a\nminister without interference by secular authorities.”). As\nthe Court explained, “[r]equiring a church to accept or retain\nan unwanted minister, or punishing a church for failing to do\nso” would “interfere[] with the internal governance of the\nchurch” and “depriv[e] the church of control over the\nselection of those who will personify its beliefs.” Hosanna-\nTabor, 565 U.S. at 188. “[I]mposing an unwanted minister,”\n\f UNION GOSPEL MISSION OF YAKIMA WA V. BROWN 21\n\n\nthen, would frustrate free exercise by diminishing “a\nreligious group’s right to shape its own faith and mission\nthrough its appointments.” Id. And it would create an\nestablishment if the state had “the power to determine which\nindividuals will minister to the faithful.” Id. at 189. So the\nministerial exception applies whenever an employee\nperforms “‘vital religious duties’ at the core of the\norganization’s mission.” McMahon v. World Vision Inc.,\n147 F.4th 959, 977 (9th Cir. 2025) (simplified).\n Thus, given the central role they provide in shaping a\nreligious organization’s mission and character, any\ngovernment interference into who may serve as a “minister”\nis an inherently religious undertaking barred by the First\nAmendment. That’s why the ministerial exception does not\nrequire any additional showing that the employment action\nwas “made for a religious reason.” Hosanna-Tabor, 565\nU.S. at 194. Once an employment dispute involves “an\nemployee [who] qualifies as a minister,” id. at 190, the First\nAmendment commands courts to abstain. For example, even\nif a church employment decision is alleged to be\n“pretextual,” the government still may not interfere with\nchurch governance. Id. at 194–95. Rather, the overriding\nprinciple is that “the authority to select and control who will\nminister to the faithful . . . is the church’s alone.” Id. at 195.\nThus, “religious organization[s] need not provide any\nreligious justification to invoke the ministerial exception.”\nMarkel v. Union of Orthodox Jewish Congregations of Am.,\n124 F.4th 796, 808 (9th Cir. 2024).\n b.\n The Doctrine’s Scope\n But the church autonomy doctrine is broader than the\nministerial exception. That exception is only a “component”\n\f22 UNION GOSPEL MISSION OF YAKIMA WA V. BROWN\n\n\nof church autonomy. See Our Lady of Guadalupe, 591 U.S.\nat 746; see also Tucker v. Faith Bible Chapel Int’l, 36 F.4th\n1021, 1028–29 (10th Cir. 2022) (“The ‘ministerial\nexception’ is a narrower offshoot of the broader church\nautonomy doctrine; it only precludes employment\ndiscrimination claims brought by a ‘minister’ against his\nreligious employer.”). Indeed, none of the three\nfoundational Supreme Court cases—Watson, Kedroff, and\nMilivojevich—“exclusively concerned the selection or\nsupervision of clergy.” Our Lady of Guadalupe, 591 U.S. at\n747. While the ministerial exception protects a religious\norganization’s narrow right to select its ministers, the church\nautonomy doctrine more generally prohibits “government\ninterference with an internal church decision that affects the\nfaith and mission of the church itself.” Hosanna-Tabor, 565\nU.S. at 190 (emphasis added). Thus, the First Amendment\nforbids government intrusion into the “internal management\ndecisions that are essential to the institution’s central\nmission.” Our Lady of Guadalupe, 591 U.S. at 746.\n We conclude that these “internal management decisions”\nmay include a religious organization’s policy of hiring co-\nreligionists for non-ministerial roles. Deciding who can\nwork non-ministerial roles for a religious organization may\nbe a matter of religious faith and doctrine. For example,\nreligious organizations may rely on their non-ministerial\npersonnel to advance their religious mission and message.\nTake Union Gospel. It insists that hiring only co-religionists\nin non-ministerial roles is critical to serving its mission and\nspreading its message. That’s because its non-ministerial\nemployees foster a community and support system for its\noutward-facing ministry. They do this by supporting one\nanother in their faith journeys, praying for each other,\nsharing Scripture, and setting an example of how to live a\n\f UNION GOSPEL MISSION OF YAKIMA WA V. BROWN 23\n\n\nChristian life. Union Gospel also maintains that employing\nlikeminded believers in non-ministerial roles helps ensure\nthat it communicates a united and consistent religious\nmessage to the public. At the very least, its employment\npolicy prevents Union Gospel’s own employees from openly\nundermining its religious message. And the policy helps\nshield employees and the public it serves from what it\nperceives to be sinful habits or behaviors. Indeed, if a\nreligious organization were forced to hire those who flout\nand disregard its religious beliefs, it may forgo engagement\nwith the public in the first place. See Seattle’s Union Gospel\nMission, 142 S. Ct. at 1096 (Alito, J., respecting the denial\nof certiorari) (“To force religious organizations to hire\nmessengers and other personnel who do not share their\nreligious views would undermine not only the autonomy of\nmany religious organizations but also their continued\nviability.”).\n As the adage goes, “personnel is policy.” Demkovich v.\nSt. Andrew the Apostle Par., 3 F.4th 968, 979 (7th Cir. 2021)\n(en banc). This applies perhaps even more so for religious\norganizations. Indeed, selecting what “activities are in\nfurtherance of an organization’s religious mission” and\nrequiring that “only those committed to [its] mission should\nconduct them” is one way “a religious community defines\nitself.” Amos, 483 U.S. at 342 (Brennan, J., concurring). See\nalso Hosanna-Tabor, 565 U.S. at 200–01 (Alito, J., joined\nby Kagan, J., concurring) (observing that some religious\ngroup’s “very existence is dedicated to the collective\nexpression and propagation of shared religious ideals,” and\n“there can be no doubt that the messenger matters”).\n And direct interference with a religious organization’s\n“faith and doctrine” conflicts with the First Amendment.\nOur Lady of Guadalupe, 591 U.S. at 746 (simplified). If a\n\f24 UNION GOSPEL MISSION OF YAKIMA WA V. BROWN\n\n\nreligious institution sincerely believes that its non-\nministerial employees must adhere to and live according to\nits religious principles to accomplish its religious mission,\nthe only way a court could adjudicate a dispute for a plaintiff\nwould be to rule that the religious institution cannot seek that\n“mission” or that the hiring policy isn’t necessary to that\n“mission”—inherently religious questions. Such a ruling\nwould violate the institution’s free exercise rights to “shape\n[its] own faith and mission” and would improperly establish\nan “ecclesiastical decision” for the institution. See Hosanna-\nTabor, 565 U.S. at 188–89. And if the institution were\nforced to disregard or alter its religious mission to satisfy\nsecular law, that could limit or remove its mission from the\npublic sphere altogether. And so, in some cases, we may\npermit “a religious organization . . . to condition\nemployment,” even non-ministerial employment, “on\nsubscription to particular religious tenets.” Amos, 483 U.S.\nat 342 (Brennan, J., concurring).\n c.\n The Doctrine’s Limits\n Of course, the church autonomy doctrine has its limits.\nIt “does not mean that religious institutions enjoy a general\nimmunity from secular laws.” Our Lady of Guadalupe, 591\nU.S. at 746.\n First, as we’ve said, the First Amendment only protects\n“sincerely held religious belief” and acts “rooted in religious\nbelief.” Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994)\n(quoting in part Wisconsin v. Yoder, 406 U.S. 205, 215\n(1972)). So the church autonomy doctrine has no place\nwhen a religious organization’s actions are “patently devoid\nof religious sincerity” or based on “‘purely secular’\nphilosophical concerns.” Id. (simplified). See also Bryce v.\n\f UNION GOSPEL MISSION OF YAKIMA WA V. BROWN 25\n\n\nEpiscopal Church in the Diocese of Colo., 289 F.3d 648, 657\n(10th Cir. 2002) (“The church autonomy doctrine is not\nwithout limits . . . and does not apply to purely secular\ndecisions, even when made by churches. Before the church\nautonomy doctrine is implicated, a threshold inquiry is\nwhether the alleged misconduct is ‘rooted in religious\nbelief.”’ (simplified)); see also Lael Weinberger, The Limits\nof Church Autonomy, 98 Notre Dame L. Rev. 1253 (2023).\n And because the hiring of non-ministerial positions is not\nnecessarily a religious matter, the church autonomy doctrine\nonly protects religious institutions’ non-ministerial hiring\npolicy on a showing that the employment decision was\n“rooted in religious belief” that was “sincerely held.” Malik,\n16 F.3d at 333 (simplified). Succinctly, the church\nautonomy doctrine applies to “closely linked matters of\ninternal government,” Our Lady of Guadalupe, 591 U.S. at\n747, which may include a religious organization’s decision\nto hire co-religionists for non-ministerial roles when the\nhiring decision rests on the institution’s sincerely held\nreligious beliefs. Of course, this doesn’t mean that courts\nmay question the veracity of sincerely held religious views.\nSee, e.g., Thomas v. Review Bd. of Ind. Emp. Sec. Div., 450\nU.S. 707, 716 (1981) (“[I]t is not within the judicial function\nand judicial competence to inquire whether the petitioner . . .\ncorrectly perceived the commands of [his] common faith.”);\nMasterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n,\n584 U.S. 617, 639 (2018) (“It hardly requires restating that\ngovernment has no role in deciding or even suggesting\nwhether the religious ground for Phillips’ conscience-based\nobjection is legitimate or illegitimate.”).\n Second, the church autonomy doctrine in the context of\nhiring of non-ministerial employees differs in some\nimportant respects from the ministerial exception. While the\n\f26 UNION GOSPEL MISSION OF YAKIMA WA V. BROWN\n\n\nministerial exception immunizes religious organizations\nfrom all employment-discrimination laws in the case of\nministers, see Hosanna-Tabor, 565 U.S. at 188; Our Lady of\nGuadalupe, 591 U.S. at 747, the protection for other\nemployees is more limited. The church autonomy doctrine\nprotects a religious organization from an employment-\ndiscrimination suit only to the extent the hiring of co-\nreligionist non-ministerial employees is based on sincerely\nheld religious beliefs. Unlike with the broader protection of\nthe ministerial exception, a religious organization cannot\ndiscriminate on other grounds, and the religious motivation\ncannot be a “pretext[]” for non-religious discrimination. Cf.\nHosanna-Tabor, 565 U.S. at 194–95.\n Finally, our decision today is limited to religious\nministries, like Union Gospel, which plainly qualify for\nprotection under the church autonomy doctrine. We do not\nconsider whether other types of entities under the umbrella\nof a religious organization, such as commercial businesses\nor hospitals, would receive similar First Amendment\nprotection in the hiring of co-religionists.\n d.\n The State’s Arguments Fail\n Contrary to the State’s argument, there is no “wall of\nCircuit authority” categorically excluding the hiring of non-\nministerial employees from the protection of the church\nautonomy doctrine. Indeed, the opposite is true.\n Start with Seattle Pacific University v. Ferguson, 104\nF.4th 50 (9th Cir. 2024). In that case, we observed that “[a]\nreligious employer is not given carte blanche with respect to\nall employees, ministerial and non-ministerial alike.” Id. at\n58. But that was in the context of deciding whether a request\n\f UNION GOSPEL MISSION OF YAKIMA WA V. BROWN 27\n\n\nfor a religious institution’s employment records constituted\nan injury in fact. Id. at 57. We concluded that the request\nitself wasn’t an injury—otherwise, it would effectively\nimmunize religious employers from any secular law. Id. at\n58. We said nothing about the scope of the church autonomy\ndoctrine in hiring non-ministerial employees. In fact, in the\nvery next sentence, we recognized that the church autonomy\ndoctrine more generally protects “internal management\ndecisions that are essential to the institution’s central\nmission.” Id. (quoting Our Lady of Guadalupe, 591 U.S. at\n746).\n Next, the State observes that Puri v. Khalsa framed the\nministerial exception as applicable “to any state law cause of\naction that would otherwise impinge on the church’s\nprerogative to choose its ministers or to exercise its religious\nbeliefs in the context of employing its ministers.” 844 F.3d\n1152, 1158 (9th Cir. 2017). But that single statement in Puri\nwas not aimed at narrowing the church autonomy doctrine’s\nbroader scope. Instead, Puri recognized that the church\nautonomy doctrine more widely bars courts from deciding\n“matters of religious doctrine and administration.” Id. at\n1154. It then deemed the doctrine inapplicable because the\ndefendants didn’t assert a “religious justification” for\ndenying plaintiffs a seat on a religious entity’s board. Id. at\n1167 (simplified). As stated above, the church autonomy\ndoctrine applies precisely where a “religious justification” is\nat the heart of a disputed hiring policy, as here.\n Nor does EEOC v. Fremont Christian School, 781 F.2d\n1362 (9th Cir. 1986), carve out the hiring of non-ministers\nfrom the protection of the church autonomy doctrine. In that\ncase, we held that the Free Exercise Clause didn’t prevent\nthe applicability of anti-discrimination laws when the laws\nhad “no significant impact” on the religious employer’s\n\f28 UNION GOSPEL MISSION OF YAKIMA WA V. BROWN\n\n\nreligious beliefs or doctrines. Id. at 1368. In considering the\nEstablishment Clause, Fremont Christian School only\nconsidered whether the ministerial exception applied under\nthe now-defunct Lemon test to determine whether there was\nexcessive entanglement. See id. at 1370 (“[T]he duties of\nthe teachers at Fremont Christian School do not fulfill the\nfunction of a minister.”). That case didn’t resolve the scope\nof free exercise when a law significantly impacts religious\nbeliefs, the reach of the church autonomy doctrine, or\nwhether the doctrine has salience outside the ministerial\nexception. Thus, it doesn’t answer the question here—\nwhether the church autonomy doctrine has anything to say\nabout the hiring of non-ministerial employees at religious\norganizations.\n So too with the State’s reliance on EEOC v. Pacific Press\nPublishing Association, 676 F.2d 1272, 1279 (9th Cir.\n1982). Like Fremont Christian School, Pacific Press found\n“no significant impact” on the religious organization’s\nbeliefs under the Free Exercise Clause and that an employee\nat a religious publisher didn’t qualify as a “minister” under\nthe Establishment Clause. Id. at 1279, 1278. Pacific Press,\nhowever, still considered the church autonomy doctrine. Id.\nat 1281. It seemingly applied a balancing test to the\ndoctrine—allowing the suit to go forward because of the\n“compelling public interest” in anti-discrimination laws\ndespite their conflict with the publisher’s religious doctrine.\nId.; but see Hosanna-Tabor, 565 U.S. at 196 (“[T]he First\nAmendment has struck the balance for us.”). Even so,\nPacific Press shows that the church autonomy doctrine\napplies outside the ministerial context. If the State is correct\nthat the doctrine only protects the hiring of ministers, then\nPacific Press could have easily rejected the applicability of\nthe church autonomy doctrine with the finding that the\n\f UNION GOSPEL MISSION OF YAKIMA WA V. BROWN 29\n\n\nemployee was not a minister. It didn’t do that. That Pacific\nPress analyzed the doctrine on the merits shows it sweeps\nmore broadly than the State claims.\n Finally, Bollard v. California Province of the Society of\nJesus doesn’t withdraw First Amendment protections for\nemployment decisions involving “lay employees.” 196 F.3d\n940, 947 (9th Cir. 1999), overruled in part by Markel, 124\nF.4th at 810 n.6. Bollard starts with a syllogism—that the\nministerial exception “does not apply to lay employees of a\nreligious institution if they are not serving the function of\nministers.” Id. That’s because, unlike with ministers, “[i]n\nthe case of lay employees, the particularly strong religious\ninterests surrounding a church’s choice of its representative\nare missing.” Id. And in that particular case, even though\nthe employee filled a ministerial role, because the religious\norganization offered no “religious justification” for its\nchallenged conduct, Bollard considered the “danger” of\n“interfere[nce] with [the organization’s] religious faith or\ndoctrine . . . particularly low.” Id. at 948; but see Markel,\n124 F.4th at 808. So Bollard is confined to cases devoid of\nany “religious justification.” See Werft v. Desert Sw. Ann.\nConf. of United Methodist Church, 377 F.3d 1099, 1101–02\n(9th Cir. 2004) (holding Bollard inapplicable when claims\n“would require a civil court to inquire into religious\njustifications for personnel decisions”). But rather than\nannounce a categorical rule limiting church autonomy to\nministerial claims, Bollard suggested that courts conduct a\n“balancing test” to determine whether a lay employee’s\nemployment claim violates the First Amendment. 196 F.3d\nat 948. So if anything, Bollard supports a broader church\nautonomy doctrine. Id. If the First Amendment\ncategorically excludes any protection of employment\n\f30 UNION GOSPEL MISSION OF YAKIMA WA V. BROWN\n\n\ndecisions involving “lay employees,” then it would be\nunnecessary to engage in any balancing whatsoever. Id.\n And none of the out-of-circuit cases cited by the State\nsupport its view that the church autonomy doctrine is\nconfined only to ministers. In fact, they suggest the\nopposite. See Rayburn v. Gen. Conf. of Seventh-Day\nAdventists, 772 F.2d 1164, 1171 (4th Cir. 1985) (observing\ngenerally that “employment decisions may be subject to\nTitle VII scrutiny, where the decision does not involve the\nchurch’s spiritual functions,” which doesn’t preclude the\nhiring of non-ministerial positions from involving a spiritual\nfunction); EEOC v. Miss. Coll., 626 F.2d 477, 485–86 (5th\nCir. 1980) (holding that a religious institution must be\nallowed to engage in “discrimination on the basis of\nreligion” to avoid a conflict with the “rights guaranteed by\nthe religion clauses of the first amendment” and remanding\nto determine whether an employment decision involving a\nnon-ministerial psychology professor was motivated by\nreligious preference).\n Several circuits also recognize the First Amendment\nconcerns raised by interfering with a religious institution’s\nhiring of non-ministerial employees. In Bryce, a fired\nchurch employee alleged that statements made by other\nchurch officials about her sexuality and same-sex marriage\nconstituted sex discrimination under Title VII. 289 F.3d at\n651–53. Rather than resolve the claims on the “ministerial\nexception,” the Tenth Circuit avoided deciding whether the\nemployee was a “minister” and instead relied on the\n“broader church autonomy doctrine.” Id. at 658 n.2. To the\nTenth Circuit, the doctrine protects a church when it “makes\na personnel decision based on religious doctrine”—even\ndecisions involving non-ministers. Id. at 660. Thus, the\nchurch’s actions fell “squarely within the areas of church\n\f UNION GOSPEL MISSION OF YAKIMA WA V. BROWN 31\n\n\ngovernance and doctrine protected by the First\nAmendment.” Id. at 658. See also Little v. Wuerl, 929 F.2d\n944, 945, 947–49 (3rd Cir. 1991) (observing that applying\nTitle VII to a Catholic school’s hiring of a teacher would “be\nconstitutionally suspect because it would arguably violate\nboth the free exercise clause and the establishment clause of\nthe first amendment”); Kennedy v. St. Joseph’s Ministries,\nInc., 657 F.3d 189, 191 n.6 (4th Cir. 2011) (noting the\npotential “First Amendment implications” of deciding a\nnurse’s employment discrimination and retaliation claims\nagainst a Catholic nursing-care facility); Hall v. Baptist\nMem. Health Care Corp., 215 F.3d 618, 622, 626–28 (6th\nCir. 2000) (acknowledging that the “First Amendment does\nnot permit federal courts to dictate to religious institutions\nhow to carry out their religious missions or how to enforce\ntheir religious practices” in a case denying a discrimination\nclaim by a fired services specialist at a church-affiliated\nhospital); Killinger v. Samford Univ., 113 F.3d 196, 200–01\n(11th Cir. 1997) (concluding, without invoking the\nministerial exception, that Title VII doesn’t protect a divinity\nschool professor fired because “his religious beliefs . . .\ndiffer[ed] from those of the school’s dean,” which “avoid[s]\nthe First Amendment concerns which always tower over us\nwhen we face a case that is about religion”).\n **\n In sum, the church autonomy doctrine encompasses\nmore than just the ministerial exception. The church\nautonomy doctrine forbids interference with “an internal\nchurch decision that affects the faith and mission of the\nchurch itself.” Hosanna-Tabor, 565 U.S. at 190. So in cases\ninvolving the hiring of non-ministerial employees, a\nreligious institution may enjoy its protection when a\nchallenged hiring decision is rooted in a sincerely held\n\f32 UNION GOSPEL MISSION OF YAKIMA WA V. BROWN\n\n\nreligious belief. That is, under the church autonomy\ndoctrine, religious organizations may decide to hire co-\nreligionists to further their religious missions.\n ii.\n Application of Church Autonomy Doctrine\n Union Gospel is a religious organization, as the State\nconcedes. Under its articles of incorporation, Union\nGospel’s mission is to “spread the Gospel of the Lord Jesus\nChrist.” It fulfills its mission by offering services to the\nhomeless, the hungry, the sick, and the addicted. It operates\nshelters, health clinics, soup kitchens, and faith-based\nrecovery services. Union Gospel’s religious beliefs guide\neverything it does. It shares the Gospel with all whom it\nserves and encourages everyone to develop a relationship\nwith Jesus Christ. At the heart of its mission, Union Gospel\nbelieves that “spiritual welfare” is more important than any\n“physical assistance” it can provide. As part of its religious\nfaith, Union Gospel has specific views about marriage and\nsexuality. According to Union Gospel, sexual expression is\nonly proper between one man and one woman in the context\nof marriage.\n Union Gospel accomplishes its religious mission\nthrough its employees. As the organization emphasizes, its\nemployees are its “hands, feet, and mouthpiece.” It expects\nits employees to participate in the group’s evangelism and\nbe an example to others of what Union Gospel believes it\nmeans to be a Christian. Union Gospel teaches that\nChristians should encourage one another in their faith and\nengage in personal fellowship. Besides exemplifying a\nChristian life, this fellowship means helping other Christians\ngrow in their faith and praying for each other. Consistent\nwith this religious mission, Union Gospel seeks to maintain\n\f UNION GOSPEL MISSION OF YAKIMA WA V. BROWN 33\n\n\na community within the organization of shared faith to\nfacilitate “Christian fellowship, mentoring, and\ndiscipleship.”\n Based on its religious views, Union Gospel only employs\nthose who share its Christian beliefs and practices. Union\nGospel requires its employees to agree with and live out\nthose beliefs and practices, including abstaining from sexual\nconduct outside of marriage between a man and a woman.\nApplicants to Union Gospel are informed about its co-\nreligionist policy both before and during the hiring process.\nIt screens out any application that expresses disagreement\nwith these religious views. On receiving an offer of\nemployment, all employees must sign and agree to Union\nGospel’s statement of faith, core values, and job duties and\nrequirements.\n As a matter of faith, Union Gospel believes that only co-\nreligionists advance its religious mission. And the State\ndoesn’t challenge the sincerity of these beliefs. Union\nGospel believes its employees create an internal “faith\ncommunity” that contributes to its outward ministry. As\nmentioned earlier, all its employees, even the “inward”\nfacing ones, must undertake the religious responsibility of\nsupporting each other’s faith journey, praying with and for\none another, sharing scripture and devotionals, and setting\nan example on how to live a Christian life as Union Gospel\nbelieves. According to Union Gospel, this “spiritually\nsupportive environment” facilitates Union Gospel’s social\nservice mission. Union Gospel understands that its mission\nto spread the Gospel through its social welfare work can be\nachieved only by those who “seek to advance the same goals\nwith the same spirit.” Thus, the group says that only those\nwho share its Christian views can build this essential\nenvironment.\n\f34 UNION GOSPEL MISSION OF YAKIMA WA V. BROWN\n\n\n Union Gospel also believes that fostering a “community\nof likeminded believers” ensures that it presents a “united,\ncorrect, and consistent Christian message to the people it\ncares for and to the world.” Its message, Union Gospel says,\nwould be undermined if its own employees openly disagree\nwith that message. At the very least, hiring only fellow\nbelievers shields its employees and the people it serves from\nwhat it thinks are “sinful habits, behaviors, and temptations.”\nThus, employing staff whose actions or beliefs go against its\nteachings would hamper its ability to achieve its religious\ngoals.\n Finally, Union Gospel believes hiring only likeminded\nbelievers maintains its very identity. See Amos, 483 U.S. at\n342 (Brennan, J., concurring) (employing co-religionists is\none way “a religious community defines itself”); Hosanna-\nTabor, 565 U.S. at 200–01 (Alito, J., joined by Kagan, J.,\nconcurring) (“messenger matters” to religious\norganizations). If forced to hire those who are hostile to its\nChristian teachings, Union Gospel fears it will lose its\nunique and important Christian message.\n Together, these reasons show that Union Gospel’s co-\nreligionist hiring policy constitutes an “internal management\ndecision[] that [is] essential to the institution’s central\nmission.” Our Lady of Guadalupe, 591 U.S. at 746.\n In sum, the State doesn’t contest three things: (1) that\nUnion Gospel is a religious institution, (2) that Union Gospel\nhas a sincerely held religious belief that only co-religionists\nmay advance its religious mission, and (3) that Union\nGospel’s co-religionist hiring policy is based on that\nreligious belief. Given all three, Union Gospel is likely to\nsucceed on the merits of its claim that enforcing WLAD\nagainst it for hiring only co-religionists violates the church\n\f UNION GOSPEL MISSION OF YAKIMA WA V. BROWN 35\n\n\nautonomy doctrine. The alternative would mean that the\nState could interfere with a religious mission and drive it\nfrom the public sphere. Such a result is contrary to the First\nAmendment’s principles.\n B.\n Irreparable Harm and Balance of Interests\n The remaining preliminary injunction factors don’t merit\nlengthy discussion—they easily favor Union Gospel.\n Union Gospel satisfies the irreparable harm requirement\nbecause it has “demonstrate[d] the existence of a colorable\nFirst Amendment claim.” Fellowship of Christian Athletes,\n82 F.4th at 694–95. “It is axiomatic that ‘the loss of First\nAmendment freedoms, for even minimal periods of time,\nunquestionably constitutes irreparable injury.’” Id. at 694\n(quoting Roman Cath. Diocese of Brooklyn v. Cuomo, 592\nU.S. 14, 19 (2020)) (simplified). And if Union Gospel is\nunable to fill the more than 50 positions required under its\nhiring policy, its operations would suffer irreparable harm.\n Union Gospel has likewise established that the public\ninterest and balance of the equities “tips sharply” in its favor.\n“[I]t is always in the public interest to prevent the violation\nof a party’s constitutional rights.” Id. at 695. And for over\n70 years, WLAD has exempted non-profit religious\norganizations, like Union Gospel, from its scope. The\nprotections Union Gospel receives here are what it\npreviously enjoyed before the Washington Supreme Court\nnarrowly construed the WLAD’s exception for religious\nemployers, and what Union Gospel otherwise would receive\nunder Title VII and various state analogs.\n\f36 UNION GOSPEL MISSION OF YAKIMA WA V. BROWN\n\n\n IV.\n Conclusion\n Union Gospel has shown it is likely to succeed on the\nmerits of its claims based on the church autonomy doctrine.\nIf a religious organization’s hiring of co-religionists for non-\nministerial positions rests on its sincerely held religious\nbeliefs, then the church autonomy doctrine forbids\ngovernment interference with that hiring decision. And\nrecognizing the limits of employment law breaks no new\nground. Congress has long exempted religious employers\nfrom federal employment laws that interfere with their\nability “to define and carry out their religious missions.”\nAmos, 483 U.S. at 329, 339 (interpreting 42 U.S.C. § 2000e-\n1). Other States within the Ninth Circuit have similar\nexemptions in their state analogs. See, e.g., Ariz. Rev. Stat.\n§ 41-1462; Cal. Gov. Code § 12926(d); Haw. Rev. Stat.\n§ 378-3(5); Idaho Code § 67-5910(1); Or. Rev. Stat.\n§ 659A.006(5)(c); Mont. Code Ann. § 49-2-101(11); Nev.\nRev. Stat. § 613.320(1)(b). Even Washington’s Legislature\nunderstood the importance of religious freedom in\nexempting religious organizations from WLAD’s scope—an\nexemption that stood for over 70 years. See Wash. Rev.\nCode § 49.60.040(11). This tension with the First\nAmendment arises only from Washington courts’ recent\nreading of WLAD. Given that interpretation’s outlier status,\nadhering to the church autonomy doctrine here is unlikely to\nhave broader impact. We affirm the preliminary injunction.\n AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11236228/", "author_raw": "BUMATAY, Circuit Judge:"}]}	JOHNNIE B RAWLINSON	DANIEL A BRESS	PATRICK J BUMATAY	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10769643/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,769,644	Nevada Resort Association-International Alliance of Theatrical Stage Employees and Moving Picture Ma	2026-01-06	24-3047	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Johnnie B. Rawlinson, Eric D. Miller, and Roopali H. Desai, Circuit Judges.", "parties": "", "opinions": [{"author": "DESAI, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\nNEVADA RESORT Nos. 24-2791\nASSOCIATION- 24-3047\nINTERNATIONAL ALLIANCE OF\n D.C. No.\nTHEATRICAL STAGE\n 2:19-cv-00499-\nEMPLOYEES AND MOVING\n JAD-VCF\nPICTURE MACHINE\nOPERATORS OF THE US AND\nCANADA LOCAL 720 PENSION\nTRUST, OPINION\n\n Plaintiff – Appellee /\n Cross Appellant,\n\n v.\n\nJB VIVA VEGAS, LP,\n\n Defendant – Appellant /\n Cross Appellee.\n\n Appeal from the United States District Court\n for the District of Nevada\n Jennifer A. Dorsey, District Judge, Presiding\n\n Argued and Submitted March 5, 2025\n Las Vegas, Nevada\n\f2 NV RESORT ASS’N-INT’L ALL. V. JB VIVA VEGAS\n\n\n Filed January 6, 2026\n\nBefore: Johnnie B. Rawlinson, Eric D. Miller, and Roopali\n H. Desai, Circuit Judges.\n\n Opinion by Judge Desai\n\n\n SUMMARY \n\n\n Multiemployer Pension Plan Amendments Act\n\n The panel reversed the district court’s grant of summary\njudgment in favor of the Nevada Resort Association-\nInternational Alliance of Theatrical Stage Employees and\nMoving Picture Machine Operators of the United States and\nCanada Local 720 Pension Trust, and remanded, in an action\nbrought by JB Viva Vegas, L.P., to challenge withdrawal\nliability under the Multiemployer Pension Plan\nAmendments Act.\n The MPPAA amended the Employee Retirement Income\nSecurity Act to impose liability on employers, like JB, that\nwithdraw from multiemployer pension plans, such as the\nplan administered by the Trust. But an exemption from\nwithdrawal liability exists for employers contributing to\nplans that primarily cover “employees in the entertainment\nindustry.” The panel held that, under the plain text of the\nstatute, there is no minimum amount of entertainment work\nrequired for an individual to be an employee in the\n\n\n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\f NV RESORT ASS’N-INT’L ALL. V. JB VIVA VEGAS 3\n\n\nentertainment industry under the MPPAA. And even if the\ntext were ambiguous, the best reading of the exception is that\n“employees in the entertainment industry” are individuals\nperforming any amount of entertainment\nwork. Accordingly, the panel held that the Trust’s plan\nprimarily covered “employees in the entertainment industry”\nbecause there is no minimum entertainment-work\nrequirement, and the majority of employees covered by the\nplan perform some entertainment work.\n\n\n\n COUNSEL\n\nChristopher M. Humes (argued), Adam P. Segal, and\nWilliam D. Nobriga, Brownstein Hyatt Farber Schreck LLP,\nLas Vegas, Nevada, for Plaintiff-Appellee.\nEric D. Field (argued), Littler Mendelson PC, Washington,\nD.C.; Kelsey Stegall, Littler Mendelson PC, Las Vegas,\nNevada; for Defendant-Appellant.\n\f4 NV RESORT ASS’N-INT’L ALL. V. JB VIVA VEGAS\n\n\n OPINION\n\nDESAI, Circuit Judge:\n\n JB Viva Vegas, L.P. (“JB”) sued the Nevada Resort\nAssociation-International Alliance of Theatrical Stage\nEmployees and Moving Picture Machine Operators of the\nUnited States and Canada Local 720 Pension Trust (“Trust”)\nto challenge withdrawal liability under the Multiemployer\nPension Plan Amendments Act (“MPPAA”). JB argues that\nthe Trust primarily covers “employees in the entertainment\nindustry,” and thus JB qualifies for the entertainment\nexception to withdrawal liability. The district court granted\nsummary judgment in the Trust’s favor, and JB appealed.\nWe hold that there is no minimum amount of entertainment\nwork required for an individual to be an “employee[] in the\nentertainment industry” under the MPPAA. We reverse and\nremand.\n BACKGROUND\n The MPPAA amended the Employee Retirement Income\nSecurity Act (“ERISA”) to impose liability on employers\nthat withdraw from multiemployer pension plans. 29 U.S.C.\n§ 1381(a). But an exemption from withdrawal liability exists\nfor employers contributing to plans that primarily cover\n“employees in the entertainment industry.” 29 U.S.C.\n§ 1383(c)(1). The parties dispute whether individuals who\nperform any amount of work in the entertainment industry\nqualify as “employees in the entertainment industry” under\nthe MPPAA.\n The Trust administers a multiemployer pension benefit\nplan that covers employees performing convention and/or\nentertainment work in southern Nevada. The MPPAA\n\f NV RESORT ASS’N-INT’L ALL. V. JB VIVA VEGAS 5\n\n\ndefines the “entertainment industry” to include theater,\nmotion picture, radio, television, sound or visual recording,\nmusic, and dance productions. 29 U.S.C. § 1383(c)(2)(A).\nWork performed for conventions and trade shows falls\noutside the definition of the entertainment industry. For\nexample, a stagehand might construct stages for both\nconventions and theatrical productions, but only the latter is\nconsidered work in the entertainment industry under the\nMPPAA. See id.\n For many years, employees covered by the Trust’s\npension plan primarily performed entertainment work.\nHowever, in recent years, hotels and other Las Vegas venues\nshifted to hosting more conventions and trade shows than\ntraditional entertainment productions, so employees covered\nby the plan started to earn more of their wages through\nconvention work. For instance, in 2016, while the majority\nof plan employees earned some of their wages through\nentertainment work, only 35 percent earned more than half\nof their wages through entertainment work. After an audit\nrevealed this trend towards convention work, the Trust\namended its plan restatement in 2013 to state that it “is not\nan Entertainment Plan under ERISA.”\n From 2008 to 2016, JB contributed to the Trust’s plan on\nbehalf of the stagehands for its theatrical production of\nJersey Boys. In September 2016, the musical closed, and JB\nstopped contributing to the plan. The Trust sent JB a letter,\nasserting that it owed $913,315 in withdrawal liability. JB\nrequested review of the Trust’s assessment, but the Trust\nnever responded.\n JB initiated arbitration, asserting that it qualifies for the\nentertainment exception to withdrawal liability. The\narbitrator entered an award in favor of JB, ordering the Trust\n\f6 NV RESORT ASS’N-INT’L ALL. V. JB VIVA VEGAS\n\n\nto rescind its withdrawal liability assessment. The arbitrator\nfound that (1) the plan was an entertainment plan in 2008,\nwhen JB first joined; (2) the Trust failed to provide updated\ndata proving that it is no longer an entertainment plan; and\n(3) the Trust improperly amended its plan in violation of\nERISA.\n The Trust filed suit to vacate or modify the arbitration\naward in the district court. The district court found that the\narbitrator improperly shifted the burden of proof to the Trust\nand should have determined the plan’s status as an\nentertainment plan based on the year that JB withdrew from\nthe plan, rather than the year it joined. The district court thus\nvacated the award and remanded to the arbitrator.\n On remand, the arbitrator granted summary judgment in\nthe Trust’s favor and ordered JB to pay withdrawal liability.\nThe arbitrator concluded that the MPPAA is ambiguous\nbecause it does not specify the amount of entertainment\nwork an employee must perform to qualify as an\nentertainment employee. Moreover, the arbitrator held that\nthe Trust reasonably determined that its plan does not\n“primarily cover[] employees in the entertainment industry”\nbecause less than half of its employees earned more than half\nof their wages from entertainment work. 29 U.S.C.\n§ 1383(c)(1).\n JB brought an action in the district court to vacate or\nmodify the arbitration award. Both parties moved for\nsummary judgment. The district court granted summary\njudgment to the Trust. It affirmed the arbitrator’s award,\nfinding that the plan does not primarily cover entertainment\nemployees because fewer than half of its employees earned\nthe majority of their wages from entertainment work. JB\n\f NV RESORT ASS’N-INT’L ALL. V. JB VIVA VEGAS 7\n\n\nappealed the district court’s grant of summary judgment, and\nthe Trust cross-appealed. 1\n STANDARD OF REVIEW\n “We review de novo the district court’s grant of\nsummary judgment.” Penn Cent. Corp. v. W. Conf. of\nTeamsters Pension Tr. Fund, 75 F.3d 529, 533 (9th Cir.\n1996). We also review de novo questions of law, including\nquestions of statutory interpretation. Trs. of Amalgamated\nIns. Fund v. Geltman Indus., Inc., 784 F.2d 926, 929 (9th\nCir. 1986). “Whether a withdrawal within the meaning of the\nstatute has occurred presents a mixed question of law and\nfact,” Penn Cent., 75 F.3d at 533, which we review de novo,\nCarpenters Pension Tr. Fund for N. Cal. v. Underground\nConstr. Co., 31 F.3d 776, 778 (9th Cir. 1994); Resilient\nFloor Covering Pension Tr. Fund Bd. of Trs. v. Michael’s\nFloor Covering, Inc., 801 F.3d 1079, 1088 (9th Cir. 2015).\n ANALYSIS\n Congress enacted the MPPAA because ERISA “did not\nadequately protect multiemployer pension plans from the\nadverse consequences that resulted when individual\nemployers terminated their participation in, or withdrew\nfrom, multiemployer plans.” Resilient Floor, 801 F.3d at\n1088 (citation modified); accord H.C. Elliott, Inc. v.\nCarpenters Pension Tr. Fund for N. Cal., 859 F.2d 808, 811\n(9th Cir. 1988). “[A] significant number of multiemployer\nplans were experiencing extreme financial hardship as a\n\n\n1\n In addition to the minimum entertainment-work requirement, JB\nappeals other issues that the district court did not address. On cross-\nappeal, the Trust also urges us to decide certain issues that the district\ncourt did not reach. We decline to decide them in the first instance. See\nSingleton v. Wulff, 428 U.S. 106, 120 (1976).\n\f8 NV RESORT ASS’N-INT’L ALL. V. JB VIVA VEGAS\n\n\nresult of individual employer withdrawals from the plans,\nwhich saddled the remaining employers with increased\nfunding obligations.” Resilient Floor, 801 F.3d at 1088\n(citation modified). Under the MPPAA, an employer that\nwithdraws from a multiemployer pension plan is liable for\nits share of the plan’s unfunded vested benefits. Resilient\nFloor, 801 F.3d at 1089 (citing 29 U.S.C. § 1381(a)).\nGenerally, an employer withdraws, and thus owes\nwithdrawal liability, if it “permanently ceases” its work in\nthe plan’s jurisdiction. 29 U.S.C. § 1383(a).\n The MPPAA provides an exception for employers\noperating and contributing to plans in the entertainment\nindustry. The entertainment exception exempts an employer\nfrom paying withdrawal liability if (1) the employer\ncontributes to the plan “for work performed in the\nentertainment industry, primarily on a temporary or project-\nby-project basis,” (2) “the plan primarily covers employees\nin the entertainment industry,” and (3) the employer ends its\nentertainment work in the jurisdiction and does not resume\nthe work within five years. 29 U.S.C. § 1383(c)(1),\n(b)(2)(B)(ii) (as interpreted in Resilient Floor, 801 F.3d at\n1089).\n Here, the parties agree that a pension plan “primarily”\ncovers entertainment employees if more than half of the\ncovered individuals are employees in the entertainment\nindustry. But they disagree about whether there is a similar\nrequirement for the minimum amount of entertainment work\nthat an individual must perform to qualify as an “employee[]\nin the entertainment industry.” The Trust argues that over 50\npercent of an individual’s work must be in the entertainment\nindustry for the individual to be an “employee[] in the\nentertainment industry.” JB counters that the statute imposes\nno minimum entertainment-work requirement.\n\f NV RESORT ASS’N-INT’L ALL. V. JB VIVA VEGAS 9\n\n\n Whether the Trust’s plan “primarily covers employees in\nthe entertainment industry” turns on the answer to this\nquestion. 29 U.S.C. § 1383(c)(1). If there is no minimum\nrequirement, the plan “primarily covers employees in the\nentertainment industry” because more than half of the\ncovered employees performed some entertainment work. 2\nBut if individuals must earn more than 50 percent of their\nwages from entertainment work to be “employees in the\nentertainment industry,” the plan does not “primarily cover\nemployees in the entertainment industry” because less than\nhalf of the covered employees performed the majority of\ntheir work in the entertainment industry.\n Because this is an issue of first impression, we first\nexamine the MPPAA’s text to determine if its meaning is\nplain and unambiguous. Ileto v. Glock, Inc., 565 F.3d 1126,\n1133 (9th Cir. 2009). A statutory term is ambiguous “only if\nit is ‘susceptible to more than one reasonable\ninterpretation.’” J.B. v. United States, 916 F.3d 1161, 1167\n(9th Cir. 2019) (quoting Guido v. Mount Lemmon Fire Dist.,\n859 F.3d 1168, 1173 (9th Cir. 2017)). If the text is\nambiguous, “we may use canons of construction, legislative\nhistory, and the statute’s overall purpose to illuminate\nCongress’s intent.” Ileto, 565 F.3d at 1133 (quoting Jonah\nR. v. Carmona, 446 F.3d 1000, 1005 (9th Cir. 2006)). But if\nthe text is clear, the statutory “language must ordinarily be\nregarded as conclusive.” Consumer Prod. Safety Comm’n v.\nGTE Sylvania, Inc., 447 U.S. 102, 108 (1980).\n\n\n2\n The parties dispute whether the relevant year for determining if the\nTrust’s plan qualifies as an entertainment plan is 2008, when JB joined\nthe plan, or 2016, when JB withdrew from the plan. Because it does not\naffect our decision, we assume without deciding that 2016 is the relevant\nyear.\n\f10 NV RESORT ASS’N-INT’L ALL. V. JB VIVA VEGAS\n\n\n A. The plain text of the entertainment exception\n unambiguously covers individuals performing\n any amount of entertainment work.\n For the entertainment exception to apply under the\nMPPAA, a pension plan must primarily cover “employees in\nthe entertainment industry.” 29 U.S.C. § 1383(c)(1). Under\na plain reading of the text, an individual who performs work\nin the entertainment industry is an “employee[] in the\nentertainment industry.” Id. That is all that is required. The\ntext does not say that an individual’s work must be\n“substantially” or “primarily” in the entertainment industry\nto qualify—any amount of entertainment work suffices. See\nGuido, 859 F.3d at 1172–74 (finding that the absence of\nlimiting language in a statute unambiguously establishes that\nthe statute is not so limited). The plain text of the exception\nis thus unambiguous and covers employees working in the\nentertainment industry without restriction. See id.\n The Trust argues that the statute is ambiguous because it\nprovides “no instruction on how to determine if an employee\nshould qualify as in the entertainment industry.” But such\ninstructions are unnecessary if the text is plain on its face: an\nindividual qualifies if they work in the entertainment\nindustry. The Trust also argues that JB implicitly conceded\nthat the statute is ambiguous because it proposed several\ndifferent interpretations of the statute before the district court\nand it could not offer alternative interpretations if the text is\nunambiguous. But we need only look to the text to determine\nif the statute is ambiguous; it is irrelevant that JB argued\nalternative interpretations before the district court. See id. at\n1173 (explaining that a statute is unambiguous even though\none party proposed an alternative interpretation because\n“declaring that multiple reasonable interpretations exist does\nnot make it so”). Based on the unambiguous text, we decline\n\f NV RESORT ASS’N-INT’L ALL. V. JB VIVA VEGAS 11\n\n\nthe Trust’s invitation to read in a minimum entertainment-\nwork requirement.\n The Trust argues that, even if the text of the statute is\nunambiguous, we should nevertheless impose a minimum\nentertainment-work requirement to avoid creating absurd\nresults. See United States v. Torres, 995 F.3d 695, 705 (9th\nCir. 2021) (“If the plain language of a statute renders its\nmeaning reasonably clear, we will not investigate further\nunless its application leads to unreasonable or impracticable\nresults.” (quoting United States v. Gallegos, 613 F.3d 1211,\n1214 (9th Cir. 2010)) (citation modified)). Specifically, the\nTrust argues that it makes little sense to classify someone as\nan “employee[] in the entertainment industry” when the\nperson performs a minimal amount of entertainment work.\nFurther, the Trust contends that it is absurd to apply the\nentertainment exception to a pension plan that covers\nemployees performing little entertainment work.\n But we may override the plain meaning of a statute only\nwhen “it is quite impossible that Congress could have\nintended the result . . . and where the alleged absurdity is so\nclear as to be obvious to most anyone.” Id. (quoting In re\nHokulani Square, Inc., 776 F.3d 1083, 1088 (9th Cir. 2015)).\nThe Trust’s arguments do not meet this “extremely high\nbar.” Id. Given the part-time nature of most entertainment\nwork, it is possible that Congress intended “employees in the\nentertainment industry” to include individuals who work\nmultiple jobs or projects, some of which involve\nentertainment work and some of which do not. See 29 U.S.C.\n§ 1383(c)(1) (describing covered entertainment work as\n“primarily on a temporary or project-by-project basis”\n(emphasis added)). After all, if the statute imposed a\nminimum entertainment-work requirement, individuals who\nperform thousands of hours of entertainment work, but\n\f12 NV RESORT ASS’N-INT’L ALL. V. JB VIVA VEGAS\n\n\nslightly more non-entertainment work, would not be\nconsidered “employees in the entertainment industry.” Thus,\nit is not impossible that Congress intended this outcome.\n Moreover, following the text’s plain meaning does not\nabsurdly expand the scope of the entertainment exception.\nThe requirement that the plan primarily cover employees in\nthe entertainment industry is only one of several conditions\nnecessary for an employer to qualify for the entertainment\nexception. For example, an employer may claim the\nexception only if its contributions are “for work performed\nin the entertainment industry.” 29 U.S.C. § 1383(c)(1).\nThus, employers that contribute to a plan on behalf of\nemployees performing non-entertainment work are unable to\nclaim the entertainment exception, and that remains\nunchanged.\n Ultimately, the Trust provides no evidence “to make\nplain the intent of Congress that the letter of the statute is not\nto prevail.” Torres, 995 F.3d at 705 (quoting Crooks v.\nHarrelson, 282 U.S. 55, 60 (1930)). “Congress may enact\nlegislation that turns out to be mischievous, absurd, or\notherwise objectionable. But in such case the remedy lies\nwith the lawmaking authority, and not with the courts.”\nUnited States v. Paulson, 68 F.4th 528, 542 (9th Cir. 2023)\n(citation modified). Because the entertainment exception is\nunambiguous, we must enforce its clear meaning and refrain\nfrom writing in limitations that do not exist.\n B. Even if the text were ambiguous, the best reading\n of the exception is that “employees in the\n entertainment industry” are individuals\n performing any amount of entertainment work.\n Canons of statutory construction confirm that our\ninterpretation is the best reading of the statute. “Where\n\f NV RESORT ASS’N-INT’L ALL. V. JB VIVA VEGAS 13\n\n\nCongress includes particular language in one section of a\nstatute but omits it in another section of the same Act, it is\ngenerally presumed that Congress acts intentionally and\npurposely in the disparate inclusion or exclusion.” Russello\nv. United States, 464 U.S. 16, 23 (1983) (citation modified).\nMore specifically, when one part of a statute contains\nlimiting language and another part does not, we read the\nlatter’s omission as “evidence of Congress’s expressed\nintent not to impose” any limitation. United States v.\nYoussef, 547 F.3d 1090, 1094 (9th Cir. 2008) (per curiam);\nsee also Hardt v. Reliance Standard Life Ins. Co., 560 U.S.\n242, 252 (2010) (reasoning that “[t]he contrast between . . .\ntwo paragraphs makes clear that Congress kn[ew] how to\nimpose express limits” in one paragraph and declined to do\nso in the other).\n Here, Congress knew how to impose quantitative limits\non who qualifies as an “employee[] in the entertainment\nindustry,” but it did not do so. In other parts of the MPPAA,\nCongress inserted language like “insubstantial portion,”\n“substantially all,” or “primarily” to limit the applicability of\nwithdrawal exceptions to employers and plans conducting a\ncertain amount of work in the relevant industry. See 29\nU.S.C. § 1383(b)(1)(A)–(B) (construction exception applies\nonly if “substantially all” of an employer’s employees work\nin the construction industry and the plan “primarily” covers\nemployees in the industry); id. § 1383(d)(2) (trucking\nexception applies only if “substantially all” of the\ncontributions to the plan are made by employers “primarily”\nworking in the trucking industry); id. § 1388(d)(1)\n(construction employer is liable for partial withdrawal if the\nemployer continues an “insubstantial portion” of its\nconstruction work).\n\f14 NV RESORT ASS’N-INT’L ALL. V. JB VIVA VEGAS\n\n\n In contrast, the phrase “employees in the entertainment\nindustry” does not include any limiting language. The\nexception requires that a plan “primarily” cover employees\nin the entertainment industry, but it does not require that\nemployees “primarily” work in the entertainment industry.\n29 U.S.C. § 1383(c)(1). In other words, the exception uses\nlimiting language in other places, but it does not limit who\nqualifies as an entertainment employee. The existence of\nlimiting language elsewhere in the MPPAA indicates that\nCongress intentionally excluded it here, intending for the\nentertainment exception to apply to employers who\ncontribute to plans that cover individuals performing any\namount of entertainment work. 3 See Russello, 464 U.S. at\n23.\n The Trust argues that the entertainment exception must\nbe read narrowly to impose some minimum amount of\nentertainment work, otherwise our reading would undermine\nthe purpose of the MPPAA and the exception. To be sure,\nwhen a statute is “qualified by an exception, we usually read\nthe exception narrowly in order to preserve the primary\noperation of the provision.” Comm’r of Internal Revenue v.\n\n3\n The Trust points out that Congress also omitted language describing\nhow to measure the amount of an employee’s entertainment work, yet\nJB agrees that a proper unit of measurement is an employee’s wages, as\nused in other parts of the statute. See 29 U.S.C. § 1399(c)(1)(C)(i)(I)\n(calculating withdrawal payments based on contribution base units, or\nemployees’ wages). The Trust thus contends that the inclusion of\nlanguage in one part of the MPPAA does not preclude us from reading\nthat language into another part of the statute. But the omission of a unit\nof measurement in the entertainment exception is consistent with our\ninterpretation. If Congress did not intend to define “employees in the\nentertainment industry” based on the amount of entertainment work they\nperform, then including a unit of measurement in the exception would be\nunnecessary.\n\f NV RESORT ASS’N-INT’L ALL. V. JB VIVA VEGAS 15\n\n\nClark, 489 U.S. 726, 739 (1989). But this general\npresumption cannot override a “fair reading” of the statutory\nexception. Food Mktg. Inst. v. Argus Leader Media, 588 U.S.\n427, 439 (2019) (quoting Encino Motorcars, LLC v.\nNavarro, 584 U.S. 79, 89 (2018)). “[J]ust as we cannot\nproperly expand [an exception] beyond what its terms\npermit, we cannot arbitrarily constrict it either by adding\nlimitations found nowhere in its terms.” Id. (citation\nomitted). And, as already explained, our reading of the text\ndoes not undermine the purpose of the MPPAA or the\nentertainment exception because an employer can claim the\nexception only if its contributions are primarily for\ntemporary entertainment work. 29 U.S.C. § 1383(c)(1).\n CONCLUSION\n For the foregoing reasons, we hold that the Trust’s plan\nprimarily covers “employees in the entertainment industry”\nbecause there is no minimum entertainment-work\nrequirement and the majority of employees covered by the\nplan perform some entertainment work.\n REVERSED and REMANDED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11236229/", "author_raw": "DESAI, Circuit Judge:"}]}	JOHNNIE B RAWLINSON	ERIC D MILLER	ROOPALI H DESAI	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10769644/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,770,447	United States v. Ruiz	2026-01-07	24-386	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Ryan D. Nelson and Lawrence VanDyke, Circuit Judges, and Douglas Russell Cole, District Judge.", "parties": "", "opinions": [{"author": "COLE, District Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\nUNITED STATES OF AMERICA, No. 24-386\n D.C. No.\n Plaintiff - Appellee,\n 3:23-cr-01331-\n GPC-1\n v.\n\nALEX RUIZ,\n OPINION\n Defendant - Appellant.\n\n Appeal from the United States District Court\n for the Southern District of California\n Gonzalo P. Curiel, District Judge, Presiding\n\n Argued and Submitted October 21, 2025\n Pasadena, California\n\n January 7, 2026\n\n Before: Ryan D. Nelson and Lawrence VanDyke, Circuit\n Judges, and Douglas Russell Cole, District Judge. \n\n Opinion by Judge Cole\n\n\n\n The Honorable Douglas Russell Cole, United States District Judge for\nthe Southern District of Ohio, sitting by designation.\n\f2 USA V. RUIZ\n\n\n SUMMARY \n\n\n Criminal Law\n\n The panel affirmed Alex Ruiz’s conviction for\ntransporting illegal aliens in violation of 8 U.S.C. § 1324, in\na case in which Ruiz argued that the district court abused its\ndiscretion in admitting into evidence a previous conviction\nhe received for the same crime.\n The panel held that the district court did not abuse its\ndiscretion in admitting the prior conviction under Fed. R.\nEvid. 404(b), as that conviction satisfied each prong of the\ntest for admission: it tended to prove the material point of\nknowledge; two years is not too remote in time; the\nstipulation and redacted documents provided sufficient\nevidence of the prior bad act; and, to the extent similarity is\nneeded, the prior crime was sufficiently similar to the\noffense charged.\n Noting that the record shows that the district court\nimplicitly considered the balancing test required by Fed. R.\nEvid. 403, the panel held that the district court did not abuse\nits discretion in performing this balancing and that any\nresulting prejudice did not substantially outweigh the\nprobative value of the prior conviction.\n The panel concluded that Ruiz waived his due process\nand Sixth Amendment challenges to the admission of the\nprior conviction by not raising a constitutional challenge in\nthe district court.\n\n\n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\f USA V. RUIZ 3\n\n\n COUNSEL\n\nPeter Horn (argued), Eric Olah, and Shivanjali A. Sewak,\nAssistant United States Attorneys; Daniel E. Zipp, Assistant\nUnited States Attorney, Chief, Appellate Section, Criminal\nDivision; Adam Gordon, United States Attorney; Office of\nthe United States Attorney, United States Department of\nJustice, San Diego, California; for Plaintiff-Appellee.\nBenjamin P. Lechman (argued), Law Offices of Benjamin P.\nLechman Esq., Los Angeles, California, for Defendant-\nAppellant.\n\n\n\n OPINION\n\nCOLE, District Judge:\n\n Defendant-Appellant Alex Ruiz appeals, on evidentiary\ngrounds, his conviction for transporting illegal aliens in\nviolation of 8 U.S.C. § 1324. Specifically, he argues that the\ndistrict court abused its discretion in admitting into evidence\nat his current trial a previous conviction he received for that\nsame crime. According to Ruiz, doing so violated both\nFederal Rule of Evidence 404(b) and the Constitution.\nNeither argument works. Because evidence of the prior\nconviction satisfies this court’s four-part test for\nadmissibility under Rule 404(b), the district court did not\nabuse its discretion in admitting it. And Ruiz forfeited his\nconstitutional argument by failing to present it below. Thus,\nwe affirm the district court.\n\f4 USA V. RUIZ\n\n\nI. Background\n On June 10, 2023, Border Patrol Agents Ordoñez-Nuñez\nand Guzman were driving in separate unmarked vehicles\nalong State Route (SR) 94 around Campo, California, less\nthan two miles from the United States-Mexico border. The\nagents noticed an older, white Honda Civic driving ten miles\nbelow the speed limit and weaving “in and out of lanes”\nalong the highway. Agent Ordoñez-Nuñez grew suspicious\nof the vehicle because the driver and passenger kept looking\nat him through the window and side mirror, and the car was\n“sitting very low on the rear axle” as if it carried extra weight\nin the back seat or trunk. After following the Civic for 15–\n20 minutes, Agent Ordoñez-Nuñez ran a records check on\nit—the search included the vehicle’s travel patterns, whether\nit had gone through any immigration checkpoints, and where\nit was registered. He learned the car was registered in La\nMesa, over fifty miles away, and had no history of traveling\nin the area or through any checkpoints. Based on these\nresults, the agent “requested for a marked Border Patrol unit\nto initiate a vehicle stop.”\n Shortly after, Agent Mallon drove up in a marked car,\nturned on the car’s lights and sirens, and attempted to pull\nover the Civic. The car, however, did not stop; rather, it\ncontinued at the same speed down the road. At that point,\nthe agents decided to deploy a vehicle immobilization\ndevice, otherwise known as a spike strip. But the Civic\nswerved around it. After that, a supervisor instructed the\nagents other than Agent Guzman, who had not turned on his\nlights or siren, to discontinue their pursuit. But, while Agent\nGuzman continued following the Civic, he soon lost sight of\nit for “approximately a minute or two.” When he next saw\nthe car, the Civic was “pulling back onto the road . . . two\ntires on pavement, two tires on dirt,” and four people were\n\f USA V. RUIZ 5\n\n\nten or fifteen yards off the roadway, running away. Agent\nGuzman immediately reported a “bailout” on his radio.\n A few minutes later, officers deployed a second spike\nstrip. This time, the Civic hit it and soon came to a stop.\nAgents approached the vehicle and arrested Ruiz.\n Agent Mallon, meanwhile, searched the area where the\n“bailout” occurred and found shoe prints. The shoe prints\nled him 50 yards away from the highway to a tree in which\nfour people were hiding. The four individuals were not U.S.\ncitizens and did not have valid immigration documents, so\nAgent Mallon arrested all of them.\nII. Procedural History\n The government charged Ruiz with three counts of\nTransportation of Certain Aliens and Aiding and Abetting,\nin violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (v)(II). 1 To\nconvict on the transportation charge, the government needed\nto prove: (1) the individuals named in the information were\naliens, (2) those individuals were not lawfully in the United\nStates, (3) “the defendant knew or acted in reckless disregard\nof the fact that the person specified in the count was not\nlawfully in the United States,” and (4) “the defendant\nknowingly transported or moved the person specified in the\ncount to help him remain in the United States illegally.” The\nparties stipulated that the three people named in the\ninformation were aliens in the United States illegally,\nsatisfying the first two elements. The government’s burden\n\n\n\n1\n Ruiz was charged with one count for each person who was traveling in\nhis car. Jose Manuel Gomez Perez, the fourth person in his car, was\ncharged as a co-defendant, so he was not included as one of the counts.\n\f6 USA V. RUIZ\n\n\nat trial thus boiled down to proving Ruiz had the requisite\nknowledge as to both prongs three and four. 2\n A. Ruiz’s Prior Conviction\n Ruiz had pleaded guilty in an earlier case to transporting\nan alien in violation of 8 U.S.C. § 1324, although supposedly\nunder a different subsection. 3 That charge arose from Ruiz\ndriving two minor females through a California port of entry\nand using false documents in early 2022. He pleaded guilty\nto the offense on August 19, 2022.\n In the run-up to the trial, the government indicated its\nintent to introduce the earlier conviction, so Ruiz moved in\nlimine to preclude that. But at a pre-trial hearing on the\nmotions in limine, the district court ruled the conviction\ncould come in under Federal Rule of Evidence 404(b) “to the\nextent that it would support the idea that Mr. Ruiz had\nknowledge that the individuals that he was transporting were\nindeed undocumented individuals and that he had engaged\n\n\n2\n Ruiz argues that the “only issue in dispute” was whether it was his Civic\n(as opposed to some other white car also traveling down the road at that\nsame time) that was transporting the individuals. But while the defense\nlimited its arguments to that issue, the government still had to prove\nRuiz’s knowledge, which is an element of the offense; therefore,\nknowledge was also at issue. United States v. Ramirez-Jiminez, 967 F.2d\n1321, 1325–26 (9th Cir. 1992). Defendant’s counsel acknowledged this\nat the motion in limine hearing, where he stated, “This is a straight-up\nknowledge and intent case.”\n3\n Defendant’s counsel stated at the motion in limine hearing that the two\noffenses required different elements as they are different subsections of\n§ 1324. The appellate brief, however, states that Ruiz was convicted of\n8 U.S.C. § 1324(a)(1)(A)(ii) in the current case, and that he pleaded\nguilty to a violation of 8 U.S.C. § 1324(a)(1)(A)(ii). Thus, the offenses\nwere for violations of the same subsection requiring the same elements.\n\f USA V. RUIZ 7\n\n\nin a plan to transport them within the United States.” 4 Based\non that ruling, the parties agreed to redact certain prejudicial\nfacts, such as that the prior case involved female minors and\nfalse documents.\n During the trial itself, the government raised the prior\nconviction several times, which the court almost always\nimmediately followed with a limiting instruction. The\ngovernment first mentioned it in its opening argument, at\nwhich time the district court instructed the jury that the\nconviction could bear on “questions of knowledge and\nmotive,” but that the jury should not consider it as evidence\nthat the defendant has a bad character or propensity to\ncommit crimes. Next, on day two, the government read into\nevidence a stipulation that Ruiz had pleaded guilty to\ntransporting an alien in 2022. In connection with reading\nthat stipulation, the government also introduced and\npublished redacted copies of Ruiz’s plea agreement, the\ntranscript of the change of plea hearing, and the judgment.\nOnce again, the district court gave a long limiting instruction\nto only consider the prior conviction to decide: “one,\nwhether the defendant had the knowledge or intent necessary\nto commit the crimes charged in the information in this case;\nand, two, whether the defendant did not commit the acts for\nwhich he is on trial by accident or by mistake.” The\ngovernment also published the above-mentioned documents\nto the jury during Agent Guzman’s testimony.\n At the close of trial, the district court again instructed the\njury to only consider the prior conviction for questions of\n“the defendant’s intent, knowledge, absence of mistake, or\nabsence of accident and for no other purpose.” He\n\n4\n The district court also admitted the prior conviction under FRE 609,\nbut this is irrelevant because Ruiz did not testify.\n\f8 USA V. RUIZ\n\n\nspecifically instructed the jury that it “may not consider this\nevidence as evidence of guilt of the crime for which the\ndefendant is now on trial.” In its closing, the government\nhighlighted how the prior conviction showed a lack of\nmistake or accident. The defense, by contrast, argued that\nthere are “important differences” between the prior and\ninstant case, and that it can only be used for limited purposes,\nbut “there’s really only one reason that that is in evidence”—\ni.e., the government wanted the jury to use it for illicit\npropensity purposes to conclude Ruiz was guilty of once\nagain engaging in the same type of conduct. Beyond that,\nthe district court elected not to allow the redacted documents\nto go back with the jury during deliberations in order to limit\nany “undue emphasis.”\n B. The Government’s Other Evidence at Trial\n Apart from the prior conviction, the government\npresented substantial evidence about Ruiz’s conduct that\nformed the basis for the current charges. Agents Ordoñez-\nNuñez, Haynes, Mallon, and Guzman all testified. Three of\nthe four identified Ruiz as the vehicle driver. The jury also\nwatched body-worn camera footage and saw portions of the\nsecond spike strip, the Civic coming to a rest, and the driver\n(Ruiz) exiting the car. It also saw screenshots from Agent\nMallon’s body-worn camera depicting the four people in the\ntree.\n Perhaps the “star witness” was Jose Manuel Gomez\nPerez, one of the individuals in the car and Ruiz’s one-time\nco-defendant. Gomez had pleaded guilty the week before\nRuiz’s trial. Gomez testified at Ruiz’s trial that Gomez was\na foot guide for the group, leading them from Mexico into\nthe United States. Gomez further testified that he used\nWhatsApp to coordinate with others the group’s entry into\n\f USA V. RUIZ 9\n\n\nthe United States. In that regard, he testified he was\ninstructed to wait for what he described as a “white car” and\na “Honda” to pick up the group. While Gomez could not\nidentify the driver, he testified that the driver: (1) called\nGomez by his nickname, “Chiapas”; (2) told the group to\nbend down in the vehicle because they were getting caught;\nand (3) finally told them to “get out” on the side of the road\nbefore they hid in the tree. The government argued that these\nstatements showed that the Honda driver (who the\ngovernment argued was Ruiz) did not randomly pick up\npassengers along the road, but instead had been sent to\ncollect the specific group of illegal aliens and transport them\nfurther into the United States.\n Agent Guzman also testified that another member of the\ngroup, Miguel, sent his coordinates in the WhatsApp group\ntext conversation referenced above. The government then\nintroduced into evidence a map showing that these\ncoordinates were not far from where Border Patrol agents\nstarted following Ruiz and finally stopped him.\n The defense did not offer any evidence.\n After closings, the jury began deliberating at 1:00 pm. It\nreturned a verdict at 2:17 p.m. The jury convicted Ruiz on\nall three counts. The district court sentenced Ruiz to thirty-\nthree months of imprisonment and three years of supervised\nrelease.\n STANDARD OF REVIEW\n We review de novo whether the challenged evidence\nfalls within the scope of “other crimes” evidence for Rule\n404(b) purposes. United States v. Soliman, 813 F.2d 277,\n278 (9th Cir. 1987). If the evidence does not fall within that\nscope (e.g., if the alleged “other crime” is “inextricably\n\f10 USA V. RUIZ\n\n\nintertwined” with the current charge such that it is not really\na separate offense), the analysis ends, and Rule 404(b) does\nnot prevent admission. Id. at 279. If, on the other hand, the\nevidence is properly characterized as “other crimes”\nevidence, then we review for abuse of discretion the district\ncourt’s decision to admit the evidence under Rule 404(b)(2).\nUnited States v. Ramirez-Robles, 386 F.3d 1234, 1242 (9th\nCir. 2004).\n If Rule 404(b) does not preclude admission, we\nseparately consider, under Rule 403, whether any unfair\nprejudice arising from admitting the evidence substantially\noutweighs its probative value. United States v. Chea, 231\nF.3d 531, 534 (9th Cir. 2000). We review that determination\nfor abuse of discretion. United States v. Flores-Blanco, 623\nF.3d 912, 919 (9th Cir. 2010).\n ANALYSIS\nI. Rule 404(b) did not bar admission of Ruiz’s prior\n conviction.\n Rule 404(b) prohibits using evidence of a previous crime\n“to prove a person’s character in order to show that on a\nparticular occasion the person acted in accordance with the\ncharacter.” Fed. R. Evid. 404(b)(1). Such evidence is\nadmissible, however, to prove “another purpose,” including\n“motive, opportunity, intent, preparation, plan, knowledge,\nidentity, absence of mistake, or lack of accident.” Fed. R.\nEvid. 404(b)(2) (emphases added). We have developed a\nfour-part test to decide when a prior bad act is admissible:\n“(1) the evidence tends to prove a material point; (2) the\nother act is not too remote in time; (3) the evidence is\nsufficient to support a finding that defendant committed the\nother act; and (4) (in certain cases) the act is similar to the\noffense charged.” United States v. Romero, 282 F.3d 683,\n\f USA V. RUIZ 11\n\n\n688 (9th Cir. 2002). The prior conviction satisfies all four\nprongs.\n A. The prior conviction proved a material point.\n The first element of the four-part test to determine\nadmissibility asks whether “the evidence tends to prove a\nmaterial point.” Id. To convict Ruiz, the government\nneeded to prove that he knew the individuals at issue were\nnot lawfully in the United States, and that he knowingly\ntransported them to help them remain in the United States\nillegally. 8 U.S.C. § 1324(a)(1)(A)(ii); see supra Procedural\nHistory. Thus, Ruiz’s knowledge was a material element the\ngovernment needed to prove. Ramirez-Jiminez, 967 F.2d at\n1325–26.\n We have repeatedly affirmed using prior stops, arrests,\nand convictions for transporting aliens to help show the same\ndefendant’s knowledge in later cases. See, e.g., United\nStates v. Holley, 493 F.2d 581, 584 (9th Cir. 1974) (prior\nstop was relevant because “knowledge was a critical issue”);\nUnited States v. Espinoza, 578 F.2d 224, 227–28 (9th Cir.\n1978) (prior act and pending charges were admissible where\n“central issue . . . was the knowledge and intent”); United\nStates v. Winn, 767 F.2d 527, 529–30 (9th Cir. 1985) (prior\nconviction “shows that appellant had knowledge of the\nsmuggling operation”); Flores-Blanco, 623 F.3d at 919 n.4\n(testimony of prior involvement tended to prove knowledge,\nintent, and plan).\n United States v. Longoria is particularly instructive. 624\nF.2d 66, 68–69 (9th Cir. 1980). There, Border Patrol agents\nfollowed a taxicab driver, Longoria, near the Mexican border\nwhen he appeared to have illegal aliens in his car. Id. at 68.\nAgents then stopped and arrested Longoria. Id. At trial, the\ncentral issue was whether Longoria knew the people in his\n\f12 USA V. RUIZ\n\n\ncab were illegal aliens. To prove that element, the\ngovernment introduced evidence of a prior conviction for\ntransporting illegal aliens, in which Longoria had likewise\ndriven aliens from the border to a motel. Id. at 68–69. Much\nlike here, Longoria appealed, challenging the trial court’s\nadmission of that prior conviction on Rule 404(b) grounds.\nId. at 69. But we rejected that argument, holding that\n“evidence of a prior similar offense is highly relevant and\nadmissible to show the requisite knowledge, criminal intent,\nand lack of innocent purpose.” Id.\n Just as in Longoria, the main element the government\nneeded to prove at trial here was whether Ruiz knew he was\ntransporting illegal aliens. The district court admitted the\nprior conviction to prove such knowledge, a material\nelement. See Holley, 493 F.2d at 584; Longoria, 624 F.2d at\n69.\n The government in its closing argument also argued that\nthe prior conviction proved a lack of accident or mistake.\nThat is a permissible purpose, as well. Under Longoria, the\ngovernment can use prior convictions to prove “lack of\ninnocent purpose.” 624 F.2d at 69. Specifically, the\nevidence provided a basis for the jury to conclude that Ruiz\nwas not involved by mistake.\n At bottom, the government needed to show that Ruiz was\nnot a random driver who happened to pick up hitchhikers\nwho happened to be illegal aliens. The prior conviction\ntended to prove that material fact.\n B. The prior conviction was not too remote in time.\n The second element to determine admissibility of prior\nbad acts is whether the alleged bad act is too remote in time.\nRomero, 282 F.3d at 688. Here, the earlier illegal conduct—\n\f USA V. RUIZ 13\n\n\ntransporting aliens—occurred in February 2022, and Ruiz\nwas convicted of that crime on August 19, 2022. His\nconviction for the instant offense, meanwhile, occurred on\nOctober 18, 2023, so the complete timeline is less than two\nyears. That falls well within durations we have approved.\nUnited States v. Spillone, 879 F.2d 514, 519 (9th Cir. 1989)\n(affirming admission of conviction from more than ten years\nbefore trial); United States v. Johnson, 132 F.3d 1279, 1283\n(9th Cir. 1997) (finding prior bad acts from thirteen years\nbefore were admissible).\n C. There is sufficient evidence that the prior crime\n occurred.\n The third element is whether there is sufficient evidence\nthat the earlier bad act actually happened. Romero, 282 F.3d\nat 688. This prong imposes a “low threshold.” Id. This\ncourt has held that a defendant’s conviction for the prior\noffense more than satisfies it. United States v. Arambula-\nRuiz, 987 F.2d 599, 603 (9th Cir. 1993) (“[T]he fact that [the\ndefendant] was convicted of the prior drug offense is\nsufficient proof that the defendant committed the prior act.”).\nNot only was Ruiz convicted of the offense of transporting\naliens, but he stipulated that he had pleaded guilty to it. In\nother words, he admitted he had committed the crime. That\neasily satisfies the third prong.\n D. To the extent similarity is needed, the prior\n conviction is similar to the offense charged.\n The fourth element asks whether the prior bad act is\nsufficiently similar to the instant offense, but this element\nonly applies “in certain cases.” Romero, 282 F.3d at 688.\nFor example, a prior conviction need not be a similar offense\nif offered to prove knowledge, “as long as the prior act was\none which would tend to make the existence of the\n\f14 USA V. RUIZ\n\n\ndefendant’s knowledge more probable than it would be\nwithout the evidence.” Ramirez-Jiminez, 967 F.2d at 1326;\nbut see United States v. Mayans, 17 F.3d 1174, 1181 (9th\nCir. 1994) (stating the last element of the four-part test as\n“(4) (in cases where knowledge and intent are at issue) the\nact is similar to the offense charged” (citation omitted)). By\ncontrast, if the evidence is offered to prove “identity, modus\noperandi, or absence of mistake or accident,” then similarity\nis required. Ramirez-Jiminez, 967 F.2d at 1326 (quoting\nUnited States v. Bailleaux, 685 F.2d 1105, 1110 n.1 (9th Cir.\n1982)). “The reason for this is that similarity, like proximity\nin time, is not a prerequisite having independent force, but\nrather a factor pertinent to rational appraisal of the probative\nvalue of the evidence in relation to the purpose for which it\nis being offered.” Id.\n Here, the district court initially admitted the evidence “to\nthe extent that it would support the idea that Mr. Ruiz had\nknowledge that the individuals he was transporting were\nindeed undocumented individuals,” an account on which\nsimilarity is perhaps not required. At trial though, the\npurposes expanded to include motive, intent, and lack of\naccident or mistake, which can impose a similarity\nrequirement.\n Ultimately, though, it matters little whether this prong\napplies, as it is satisfied. But why that is so merits some\nadditional explanation. At a high level, of course, both this\ncase and the earlier conviction involve transporting illegal\naliens in violation of § 1324, with Ruiz acting as the driver\nin Southern California. So on that telling, they seem similar.\nBut viewed with more granularity, differences emerge. For\nexample, Ruiz was apprehended at different places; in the\nearlier case, he was arrested at a California port of entry,\nwhile here agents stopped him on a rural road several miles\n\f USA V. RUIZ 15\n\n\ninto the United States. And the nature of the offense was\narguably different. Before he had transported two female\nminors and did not attempt to conceal them, instead he\nattempted to use false documents. Here, he concealed four\nadult men and told them to “get out” after Border Patrol first\nattempted to stop him. 5\n So it matters how we go about assessing similarity. One\napproach this court has used in answering that question is to\ncompare the magnitude of the differences in the crimes in\nthe current case to the differences that this court has\napproved as “similar” in past cases. See, e.g., United States\nv. Herrera-Medina, 609 F.2d 376, 380 (9th Cir. 1979)\n(finding that the prior arrests and offense charged there were\nsufficiently similar because they were more similar than the\nprior acts at issue in Espinoza and Holley, cases in which this\ncourt had upheld admissibility of prior bad acts evidence).\nApplying that framework, Ruiz’s current crime and his past\nconviction are similar.\n For example, in Holley, we upheld admission of Holley’s\nprior arrest for transporting illegal aliens to prove Holley’s\nknowledge that his taxicab passengers in the current case\nwere illegal aliens. 493 F.2d at 584. In both cases, Holley\nwas the driver, but, much like here, the specific details\nvaried—“the number, age, sex, and attire” of the aliens was\ndifferent. Id. at 585 (Hufstedler, J., dissenting). Further, in\nthe earlier case, Holley picked up the couple near his garage\nin his private car. Id. But in the later case, he picked up four\nmen in his taxicab after receiving a radio call from the\n\n5\n Defense counsel also argued below that another difference is that Ruiz\npleaded guilty in the prior case and was “willing to admit where he’s\nwrong,” but in this case, he did not. But this is not a difference in the\ncircumstances of the offense or factual basis for his arrest in that case.\n\f16 USA V. RUIZ\n\n\ncompany dispatcher. Id. Despite these differences, we held\nthat the district court did not abuse its discretion in admitting\nthe prior arrest as “prior similar conduct.” Id. at 584.\n Similarly, in Espinoza, we upheld admission of Border\nPatrol agents’ testimony about their previous surveillance of\nthe defendants before the arrest leading to the case at trial.\n578 F.2d at 226–28. Earlier, Border Patrol agents had\nobserved the defendants in their truck pull next to a van, and\nthat van was later found with 27 aliens inside. Id. at 226–27.\nThe conduct at issue at trial, by contrast, involved an illegal\nalien calling one defendant, that defendant picking him up\nfrom a gas station, driving him to the defendant’s house, and\nthe other defendant arriving at the house and picking up the\nillegal alien, where Border Patrol agents then stopped them.\nId. As we described in a later case, “the defendants in\n[Espinoza] had not, in the prior incident, picked up illegal\naliens. The most that a jury could have inferred was that they\nhad arranged to have another person pick up the aliens.”\nHerrera-Medina, 609 F.2d at 380. Despite these differences,\nwe found the acts sufficiently similar to allow admission\nunder Rule 404(b). Espinoza, 578 F.2d at 228.\n The details here are more similar than in Espinoza.\nThere, as noted, the defendants had been the drivers one\ntime, but only arranged a pick-up the other. 578 F.2d at 226–\n28. Here, Ruiz acted as the driver in both the cases. True,\nthe number, sex, and age of the immigrants differed, but\nHolley rejected the idea that this prevents a finding of\nsimilarity. 493 F.2d at 585 (Hufstedler, J., dissenting).\nFurther, both offenses occurred in the same region along the\nborder in Southern California. Thus, the prior conviction is\nsufficiently similar to the instant offense to support\nadmissibility.\n\f USA V. RUIZ 17\n\n\n In sum, the prior conviction satisfies each prong of the\ntest for Rule 404(b)—it tended to prove the material point of\nknowledge, two years is not too remote in time, the\nstipulation and redacted documents provided sufficient\nevidence of the prior bad act, and the prior crime was\nsufficiently similar to the offense charged. Therefore, the\ndistrict court did not abuse its discretion in admitting the\nprior conviction under Rule 404(b).\n The Defendant urges a different result, arguing that the\nprior conviction was inadmissible for failure to meet the\nthird prong of the Rule 404(b) test—whether there was\nsufficient evidence the prior bad act had occurred. See\nUnited States v. Bailey, 696 F.3d 794, 799 (9th Cir. 2012);\nUnited States v. Wells, 879 F.3d 900, 914 (9th Cir. 2018). It\nis true that, in Bailey, we held that the district court had erred\nin admitting a prior civil SEC complaint in a later action as\nevidence that the prior offense had occurred. 696 F.3d at\n799. Specifically, we held that when the sole evidence that\na prior bad act occurred is a complaint, that does not satisfy\nthe third prong of the admissibility test. But that is because\na complaint includes only allegations, not proof. Id. Here,\nby contrast, Ruiz pleaded guilty to, and was convicted of, the\nprior offense. That more than suffices to show the offense\noccurred.\n Ruiz’s brief does not even meaningfully argue otherwise.\nWhile Ruiz characterizes his challenge as directed at the\nthird element, Ruiz, based on Bailey, really contests the\nsimilarity element—prong four. As he puts it in his brief,\n“the bare fact of a prior § 1324 conviction does not establish\nthat he committed an act like the one charged here.”\n(Emphasis added). That fails for the above-noted reasons\nrelating to prong four.\n\f18 USA V. RUIZ\n\n\n Wells does not help him either. 879 F.3d 900. There, the\ndistrict court first admitted expert testimony regarding a\ncriminal “profile,” and the government then argued the\ndefendant’s characteristics fit that profile. Id. at 914. But\nthe use of “profile” testimony raises questions under Rule\n404(a)(1), so the analysis on that front is entirely irrelevant\nto the Rule 404(b) challenge here. Id. at 920–21. To be sure,\nthe district court also had admitted various other prior bad\nacts that formed the basis for the profile testimony, which\ndid bring Rule 404(b) into play. But much of the analysis of\nthat issue was limited to whether the evidence was even\nsubject to Rule 404(b) in light of the inextricably intertwined\nexception. Id. at 925. The scope of that exception is\nirrelevant here, though, as no party raised, nor did the district\ncourt rely on, this exception in determining admissibility.\nAnd beyond that, Wells affirmed admitting most of the prior\nbad acts, except for one conviction, to prove motive under\nRule 404(b). Id. at 929. Specifically, the government used\nthe prior bad acts to explain why the defendant wanted to\nmurder his coworkers—i.e., classic motive evidence. Id.\nHere, by contrast, while the district court mentioned the prior\nconviction could be used to prove “knowledge and motive,”\nthe government did not use Ruiz’s conviction to argue\nmotive, but only to argue that he knew that the individuals\nwere in the United States illegally. Therefore, Wells is not\ninstructive here.\n In sum, the district court did not abuse its discretion in\nadmitting the prior conviction under Rule 404(b).\nII. Ruiz’s prior conviction should not be excluded under\n Rule 403.\n Because there was no error under Rule 404(b), we must\nconsider whether admitting the prior conviction complies\n\f USA V. RUIZ 19\n\n\nwith Rule 403’s balancing test. “If the evidence meets [the\nfour-part] test under Rule 404(b), ‘the [district] court must\nthen decide whether the probative value is substantially\noutweighed by the prejudicial impact under Rule 403.’”\nChea, 231 F.3d at 534 (quoting United States v. Nelson, 173\nF.3d 1094, 1107 (9th Cir. 1998). But, even if a district court\ndoes not explicitly mention Rule 403, we “will uphold\nadmission of the evidence when it is clear from the record\nthat the court implicitly made the necessary finding.”\nRamirez-Jiminez, 967 F.2d at 1326.\n The record shows that the district court implicitly\nconsidered the balancing question. At the motion in limine\nhearing, Ruiz argued that certain facts about the prior\nconviction (i.e., that it involved minor females and false\ndocuments) were overly prejudicial and, at minimum,\nneeded to be redacted. The district court agreed that those\nfacts would be overly prejudicial and “wouldn’t move the\nball up the field,” so the prior conviction should be\n“sanitized.” The government agreed to redact the\ndocuments. Additionally, the district court did not allow\ntestimony from the agent involved in the prior conviction\nbecause it would be unnecessary on top of the guilty plea and\nother documents. Furthermore, the district court did not let\nthe documents go back with the jury along with the other\nexhibits because it would give “undue emphasis” to the\nconviction. Taken together, this conduct shows that, even\nthough the district court may not have explicitly mentioned\nRule 403, it weighed the probative value and unfair prejudice\nin deciding how to allow the government to introduce the\nevidence.\n Relatedly, the district court did not abuse its discretion\nin performing this balancing. Rule 403 directs the court to\nexclude evidence “if its probative value is substantially\n\f20 USA V. RUIZ\n\n\noutweighed by a danger of . . . unfair prejudice.” Fed. R.\nEvid. 403. Specifically, the prejudice must be unfair,\nmeaning it has “an undue tendency to suggest decision on an\nimproper basis, commonly, though not necessarily, an\nemotional one.” Old Chief v. United States, 519 U.S. 172,\n180 (1997). The probative value in a knowledge case, on the\nother hand, is “measured by its tendency to make the\nexistence of [Ruiz’s] knowledge or intent more probable\nthan it would be without the evidence.” Ramirez-Jiminez,\n967 F.2d at 1327.\n Ruiz’s prior conviction for transporting illegal aliens\nmakes it more probable that he had knowledge that the\nindividuals in his car were present illegally and that he\nknowingly transported them to help them remain in the\nUnited States. This prior conviction is unlikely to create an\nemotional or otherwise unfairly prejudicial response,\nespecially since the parties redacted the facts concerning\nfemale minors and false birth certificates. “Rather, it is\nprejudicial only to the extent that it tends to prove the fact\njustifying its admission, namely that appellant had\nknowledge of his cargo of illegal aliens.” Id. In other words,\nit is fairly, not unfairly, prejudicial. Beyond that, the district\ncourt gave repeated limiting instructions about the proper\npurpose of the prior conviction each time the government\nraised it, further minimizing any risk of unfair prejudice.\nFlores-Blanco, 623 F.3d at 920. Accordingly, we agree that\nany resulting prejudice did not substantially outweigh the\nprobative value of the prior conviction, meaning the district\ncourt did not abuse its discretion at this step in admitting the\nprior conviction.\n\f USA V. RUIZ 21\n\n\nIII. Ruiz did not raise the constitutional question in the\n lower court, so we decline to decide it on appeal.\n Separately, Ruiz argues that admitting the prior\nconviction violated both due process and his Sixth\nAmendment right to a fair trial. However, that constitutional\nissue is not properly before this court. “As a general rule,\nwe will not consider issues raised for the first time on\nappeal.” United States v. Rusnak, 981 F.3d 697, 704 (9th\nCir. 2020) (quoting United States v. Rubalcaba, 811 F.2d\n491, 493 (9th Cir. 1987)). Moreover, because the issue\nrelates to suppression of evidence, Ruiz needed to raise it in\na pre-trial motion under Federal Rule of Criminal Procedure\n12; otherwise, the argument is waived. See United States v.\nMurillo, 288 F.3d 1126, 1135 (9th Cir. 2002). While Ruiz\nadmittedly moved to bar the evidence, his motion challenged\nthe admissibility of the prior conviction solely on Rule\n404(b) grounds; he did not mount a constitutional challenge,\nwhether on due process or fair trial grounds. See id. (holding\nthat even though the defendant moved to suppress cell site\nlocation data, “he did not actually raise a Fourth Amendment\nclaim … [t]hus, we will not now consider this argument”).\nNor has Ruiz provided any explanation for his failure to raise\nthis constitutional argument below. Thus, Ruiz has waived\nhis constitutional challenge.\n CONCLUSION\n For the foregoing reasons, we affirm the judgment of the\ndistrict court.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11237032/", "author_raw": "COLE, District Judge:"}]}	RYAN D NELSON	LAWRENCE VANDYKE	DOUGLAS RUSSELL COLE	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10770447/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,771,069	Seagate Technology LLC v. Nhk Spring Co., Ltd.	2026-01-08	24-4470	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Consuelo M. Callahan and Kenneth K. Lee, Circuit Judges, and Scott H. Rash, District Judge.", "parties": "", "opinions": [{"author": "LEE, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\nSEAGATE TECHNOLOGY LLC; No. 24-4470\nSEAGATE TECHNOLOGY\n D.C. No.\n(THAILAND) LTD.; SEAGATE\n 3:19-md-02918-\nSINGAPORE INTERNATIONAL\n MMC\nHEADQUARTERS PTE, LTD;\nSEAGATE TECHNOLOGY\nINTERNATIONAL, OPINION\n\n Plaintiffs - Appellants,\n\n v.\n\nNHK SPRING CO., LTD.; NHK\nINTERNATIONAL\nCORPORATION; NHK SPRING\n(THAILAND) CO., LTD.; NAT\nPERIPHERAL (DONG GUAN) CO.,\nLTD.; NAT PERIPHERAL (H.K.)\nCO., LTD.,\n\n Defendants - Appellees.\n\n Appeal from the United States District Court\n for the Northern District of California\n Maxine M. Chesney, District Judge, Presiding\n\f2 SEAGATE TECH. LLC V. NHK SPRING CO. LTD.\n\n\n Argued and Submitted June 6, 2025\n San Francisco, California\n\n Filed January 8, 2026\n\nBefore: Consuelo M. Callahan and Kenneth K. Lee, Circuit\n Judges, and Scott H. Rash, District Judge. \n\n Opinion by Judge Lee\n\n\n SUMMARY \n\n\n Antitrust\n\n The panel vacated the district court’s partial summary\njudgment in favor of defendants NHK Spring Co., Ltd., et al.\nand remanded for further proceedings in an antitrust action\nbrought under the Sherman Act by Seagate Technology\nLLC, an American company, and two Seagate foreign\nentities.\n The Seagate plaintiffs sought to bring antitrust claims\nagainst Japanese-owned NHK for unlawful price-fixing. In\na separate federal criminal proceeding, NHK pleaded guilty\nto conspiring with its competitors to fix the price of\nsuspension assemblies sold in the United States and\nelsewhere in the world. Seagate’s foreign entities bought\n\n\n The Honorable Scott H. Rash, United States District Judge for the\nDistrict of Arizona, sitting by designation.\n*\n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\f SEAGATE TECH. LLC V. NHK SPRING CO. LTD. 3\n\n\nthose price-fixed suspension assemblies, which were\nincorporated into Seagate’s hard drives, outside the United\nStates. The district court ruled that the Sherman Act did not\nextend to such foreign injury.\n The panel held that Seagate alleged a viable theory of\nextraterritorial reach under the Foreign Trade Antitrust\nImprovements Act, which provides that U.S. antitrust laws\ncan apply, even if an injury occurs beyond U.S. borders, if\nthe anticompetitive conduct (1) involves goods imported\ninto the United States that Americans buy (the “import\ncommerce” exclusion) or (2) has a direct effect on domestic\ncommerce that in turn causes the foreign antitrust injury to\nthe plaintiff (the “domestic effects” exception). The panel\nheld that the import commerce exclusion did not apply\nbecause the suspension assemblies were not directly\nimported into the U.S. But under the domestic effects\nexception, Seagate sufficiently alleged that NHK’s price-\nfixing in the U.S., as reflected in a master product supply\nagreement negotiated in the U.S., led to the domestic harm\nof higher prices for the suspension assemblies in the U.S.,\nand that effect also directly caused an antitrust injury abroad\nbecause Seagate’s foreign entities overpaid for the\nsuspension assemblies based on the inflated U.S. price.\n The panel remanded to the district court to determine\nwhether Seagate adduced sufficient evidence of proximate\ncause to survive summary judgment.\n\f4 SEAGATE TECH. LLC V. NHK SPRING CO. LTD.\n\n\n COUNSEL\n\nEamon P. Joyce (argued), Sidley Austin LLP, New York,\nNew York; David R. Carpenter and Nicole M. Baade, Sidley\nAustin LLP, Los Angeles, California; Jeremy Rozansky,\nSidley Austin LLP, Washington, D.C.; Robert N. Hochman\nand Shirin Mahkamova, Sidley Austin LLP, Chicago,\nIllinois; Steffen N. Johnson and John B. Kenney, Wilson\nSonsini Goodrich & Rosati, Washington, D.C.; Mikaela E.\nEvans-Aziz, Kenneth R. O'Rourke, and Jeff\nVanHooreweghe, Wilson Sonsini Goodrich & Rosati, San\nFrancisco, California; Michael W. McConnell, Wilson\nSonsini Goodrich & Rosati, Palo Alto, California; for\nPlaintiffs-Appellants.\nMichael F. Murray (argued), Craig Y. Lee, Carter C.\nSimpson, and Alexandra Glazer, Paul Hastings LLP,\nWashington, D.C.; Navi S. Dhillon, Paul Hastings LLP, San\nFrancisco, California; for Defendants-Appellees.\nAaron D. Van Oort, Kevin P. Wagner, and Kirsten L.\nElfstrand, Faegre Drinker Biddle & Reath LLP,\nMinneapolis, Minnesota; Paul J. Riehle, Faegre Drinker\nBiddle & Reath LLP, San Francisco, California; for Amicus\nCuriae Professor Kenneth G. Elzinga.\nKathleen W. Bradish and Randy Stutz, American Antitrust\nInstitute, Washington, D.C., for Amicus Curiae American\nAntitrust Institute.\nJennifer L. Williams and Megan A. Maitia, Summa LLP,\nLos Angeles, California, for Amicus Curiae Professor\nCedric Ryngaert.\n\f SEAGATE TECH. LLC V. NHK SPRING CO. LTD. 5\n\n\n OPINION\n\nLEE, Circuit Judge:\n\n American antitrust laws broadly prohibit anticompetitive\nconduct and authorize private parties to seek treble damages.\nCongress, however, largely closed our courthouse doors to\nantitrust claims based on injuries outside the United States.\nBut it carved out two narrow exceptions under the Foreign\nTrade Antitrust Improvements Act (FTAIA). 15 U.S.C.\n§ 6a. U.S. antitrust laws can still apply—even if the injury\noccurs beyond our borders—if the anticompetitive conduct\n(1) involves goods imported into the United States that\nAmericans buy (the “import commerce” exclusion) or\n(2) has a direct effect on domestic commerce that in turn\ncauses the foreign antitrust injury to the plaintiff (the\n“domestic effects” exception).\n In an increasingly globalized economy, it can sometimes\nbe thorny, as in this case, to tease out when these narrow\nstatutory provisions allow extraterritorial reach of our\nantitrust laws. Seagate Technology LLC (an American\ncompany based in California) and two Seagate foreign\nentities (Seagate Thailand and Seagate Singapore) argue that\nthey can bring antitrust claims against Japanese-owned NHK\nSpring Co., Ltd. for unlawful price-fixing. In a separate\nfederal criminal proceeding, NHK pleaded guilty to\nconspiring with its competitors to fix the price of\n“suspension assemblies” sold in the United States and\nelsewhere in the world. But Seagate’s foreign entities\nbought those price-fixed suspension assemblies—which are\nincorporated into Seagate’s hard drives—outside the United\nStates. The district court thus granted partial summary\n\f6 SEAGATE TECH. LLC V. NHK SPRING CO. LTD.\n\n\njudgment for NHK, ruling that the Sherman Act did not\nextend to such foreign injury.\n We vacate the district court’s order because Seagate 1 has\nalleged a viable theory of extraterritorial reach under the\nFTAIA. According to Seagate’s complaint, NHK’s price-\nfixing scheme was reflected in a master product supply\nagreement negotiated in the United States with Seagate\nTechnology LLC. That agreement reflected an artificially\nhigh price for suspension assemblies. Then this NHK-\nSeagate Technology LLC agreement in turn allegedly set the\npricing parameters for Seagate’s foreign entities because\nthey were obligated to accept those (fixed) prices in the\nagreement. Put another way, NHK’s price-fixing in the U.S.\nled to domestic harm (i.e., higher prices for the suspension\nassemblies in the United States), and that effect also directly\ncaused an antitrust injury abroad (because Seagate’s foreign\nentities overpaid for the suspension assemblies based on the\ninflated U.S. price). We, however, remand for the district\ncourt to determine whether Seagate has adduced sufficient\nevidence of proximate cause to survive summary judgment.\n BACKGROUND\n I. Factual Background\n A. Seagate foreign entities buy SAs from NHK and\n other suppliers.\n Nearly every consumer electronic device needs a way to\nstore data. Many devices—such as computers, gaming\nconsoles, and servers—rely on hard disk drives (HDDs) for\n\n1\n We will use the term “Seagate” to refer to Seagate Technology LLC,\nSeagate Thailand, and Seagate Singapore collectively. But we will refer\nto each Seagate entity by its individual name if that distinction is relevant\nto our discussion.\n\f SEAGATE TECH. LLC V. NHK SPRING CO. LTD. 7\n\n\nbulk storage. Hard disk drives resemble electro-magnetic\n“filing cabinets” containing several drawers (or “platters”)\nwith millions of folders (or “sectors”) storing electronic data.\n Seagate Technology LLC, a California-based company,\nis a leading manufacturer of hard disk drives. But Seagate\nTechnology LLC does not produce all the key components\nthat go into a hard disk drive, including a part called the\n“suspension assembly” (sometimes called “SA”). Each\nplatter in a hard drive constantly spins to allow the user to\naccess all the data sectors on that platter. A suspension\nassembly holds a recording head 12 nanometers above a\nplatter turning at 150–170 miles per hour, requiring\nprecision like “a 747 aircraft flying full speed l/l6th of an\ninch above a [jagged] desert surface.”\n Reflecting the global nature of commerce today, a\nSeagate hard disk drive is built with parts bought and\nassembled across the world by various Seagate foreign\nentities. Most of Seagate’s suspension assemblies are\nbought in Thailand by the Thai entity, Seagate Technology\n(Thailand) Ltd (“Seagate Thailand”). There, the suspension\nassemblies are incorporated into another part called a head\ngimbal assembly. Next, Seagate incorporates the head\ngimbal assembly into yet another part called a head stack\nassembly either in Thailand or China. The head stack\nassemblies are then incorporated into finished hard disk\ndrives in Thailand, China, or Singapore, and all the hard disk\ndrives are shipped to Seagate Singapore International\nHeadquarters Pte. Ltd. (“Seagate Singapore”) for\ndistribution. Seagate Singapore either sells the hard disk\ndrives directly or distributes them to other Seagate entities to\nsell, such as Seagate Technology LLC in California. In other\n\f8 SEAGATE TECH. LLC V. NHK SPRING CO. LTD.\n\n\nwords, only the finished hard disk drives are directly\nimported into the United States. 2\n Seagate buys its suspension assemblies from a few\nsuppliers. Since the 1980s, the suspension assembly\nmanufacturing industry has consolidated greatly and only\ntwo main players remain. One of those is NHK Spring Co.,\nLtd., a leading Japanese manufacturer of springs and other\nengineered components like suspension assemblies. During\nthe relevant period, NHK often received “the majority of the\nSeagate business” for suspension assembly projects, despite\nbeing the highest-priced bidder on Seagate’s proposals.\n B. NHK rigs suspension assembly prices based on a\n U.S. agreement.\n In July 2019, NHK pleaded guilty to criminal price-\nfixing under the Sherman Antitrust Act, 15 U.S.C. § 1. From\nbefore June 2008 to at least April 2016, NHK engaged in a\nglobal conspiracy with another competitor to fix the price of\nsuspension assemblies in the United States and elsewhere.\nNHK’s officers and employees held meetings with another\ncompetitor in which they agreed “to refrain from competing\non prices for, fix the prices of, and allocate their respective\nmarket shares for[] HDD suspension assemblies.” As part\nof NHK’s plea agreement, the U.S. Department of Justice\nsought a criminal fine of $28.5 million dollars, which was\napproved by the U.S. District Court for the Eastern District\nof Michigan. But the government did not seek restitution “in\nlight of the availability of civil causes of action.” See United\nStates v. NHK Spring Co. Ltd., ECF 25 at 8, No. 2:19-cr-\n20503 (E.D. Mich. Jan. 31, 2020).\n\n2\n A few SAs are directly imported for testing and product development\npurposes; these parts are not at issue in this appeal.\n\f SEAGATE TECH. LLC V. NHK SPRING CO. LTD. 9\n\n\n NHK’s plea agreement explains that suspension\nassembly suppliers “exchanged . . . pricing information,\nincluding anticipated pricing quotes,” “and used the\nexchanged pricing information to inform their negotiations\nwith U.S. and foreign customers that purchased” those parts.\nThe “primary purpose” of this conspiracy was to “fix the\nprices of [hard disk drive] suspension assemblies sold in the\nUnited States and elsewhere.” These centralized “pricing\nquotes” apparently were at the heart of how Seagate sourced\nsuspension assemblies: Importantly for our case, although\nnearly all of Seagate’s suspension assemblies were\npurchased by its foreign entities abroad, these foreign\nentities apparently lacked any authority to decide on any\nterms of purchase, whether price, quantity, or even the\ntiming of their orders. Such parameters all were determined\ncentrally by Seagate Technology LLC’s Commodities\nManagement Team (“CMT”) in Minnesota. The foreign\ncompanies—primarily Seagate Thailand—simply entered\norders into their purchase order systems at precisely the\ntimes, rates, and prices that CMT instructed them to enter.\n Pricing was negotiated by Seagate CMT with suppliers\nquarterly. Although the master Product Supply Agreements\nbetween Seagate Technology LLC and each supplier\ncontained some pricing terms (such as price floors, ceilings,\nor most-favored-nation provisions), these were average or\nexpected prices—not actual transaction prices. Actual\ntransaction prices were finalized by Seagate’s CMT unit\neach quarter through bidding on an RFQ, or “Request for\nQuotation.” First, Seagate Technology LLC would send a\ncomplex, custom grid to each supplier like NHK. The\nsupplier placed its bids across several dimensions, such as\nprototypes, mass-production price, model, volume band, and\nprogram. These RFQ “responses” from suppliers were then\n\f10 SEAGATE TECH. LLC V. NHK SPRING CO. LTD.\n\n\nnegotiated by Seagate Technology LLC’s CMT on U.S. soil,\nalong with the purchase volumes “allocated” to each\nsupplier. Finally, the agreed-upon prices and volumes were\nsent by Seagate CMT to Seagate Thailand and Singapore to\nuse to purchase suspension assemblies at the appropriate\ntime.\n These RFQ responses, called “anticipated pricing\nquotes” in NHK’s plea agreement, also were the chief\ninstrument that NHK would use to fix prices. First, NHK’s\nhead of American SA sales would discuss specific proposed\nRFQ responses for a given Seagate product with his\ncompetitors. Next, he would relay the contents of these\ndiscussions to top NHK executives in Yokohama, one of\nwhom was later indicted for his role in the conspiracy, and\nanother who candidly explained that NHK would use\ncompetitor pricing information “as reference” for its own\nRFQ responses. Finally, to entrench this process, NHK’s\nhead of American SA sales even tried to make a job posting\nfor a position for NHK in Minnesota that included the\nrequirement, “Find out competitor’s information, pricing\ninformation”—because he “underst[oo]d that collecting\ncompetitor pricing information” simply was part of the job.\nWhen NHK executives in Yokohama caught wind of this,\none of them advised, “Just scratch pricing information on\ncompetitors. That you can verbally tell once we hire.”\n II. Procedural History\n Shortly after NHK was sentenced in its criminal case,\nSeagate sued in the Northern District of California, alleging\nviolations of the Sherman Act, violations of antitrust statutes\nin Minnesota and California, and common-law breach of\ncontract. Seagate sought treble damages under Section 4 of\nthe Clayton Act, 15 U.S.C. § 15(a), among other relief.\n\f SEAGATE TECH. LLC V. NHK SPRING CO. LTD. 11\n\n\nSeagate amended its complaint twice, in October 2020 and\nin April 2021.\n While discovery was ongoing, NHK moved for Partial\nSummary Judgment Regarding Foreign Commerce. NHK\nalleged that Seagate’s “direct purchaser claims arising from\ncomponent sales that took place outside the U.S.”—in other\nwords, claims “based on sales of [suspension assemblies]\nbilled and shipped to Seagate Thailand and Singapore”—\nwere barred by the FTAIA. 15 U.S.C. § 6a. The FTAIA\nbars Sherman Act claims based on conduct involving “trade\nor commerce with foreign nations,” unless that conduct\n(1) involves imported goods that Americans buy or (2) “has\na direct, substantial, and reasonably foreseeable effect” on\nU.S. domestic commerce or certain exports and “such effect\ngives rise to” an independent Sherman Act claim. Id. NHK\nessentially argued that, for example, if a suspension\nassembly was bought by a Thai subsidiary in Thailand, this\nqualified as wholly foreign commerce ineligible for\nSherman Act relief.\n The district court at first agreed with NHK in part. In its\nMay 15, 2023 order, the court found that most of the\nsuspension assemblies purchased by Seagate Thailand and\nSeagate Singapore never entered the United States at any\npoint. These were indeed “wholly foreign transactions,” the\ncourt ruled, ineligible for Sherman Act relief. In re Hard\nDisk Drive Suspension Assemblies Antitrust Litig. (“In re\nHDD”), No. 19-md-02918, 2023 WL 3483242, at 8 (N.D.\nCal. May 15, 2023). But about one-third of Seagate’s\nforeign suspension assembly purchases did eventually enter\nthe U.S. as part of finished hard drives. True, these parts\nfirst were integrated into the hard drives overseas, and the\nFTAIA’s import exclusion only covers conduct involving\n“import trade or import commerce.” 15 U.S.C. § 6a. But the\n\f12 SEAGATE TECH. LLC V. NHK SPRING CO. LTD.\n\n\ncourt held that “the import . . . exclusion can be established\nwithout a showing that the defendants themselves shipped\nprice-fixed goods into” the U.S. and thus denied summary\njudgment in part. Id. at 6 (emphasis added).\n The district court changed direction when asked by NHK\nto reconsider. First, the court held that the defendant did\nhave to directly ship the price-fixed goods into the United\nStates for the import exclusion to apply, and no suspension\nassemblies were directly shipped to the U.S. here. In re\nHDD, 2023 WL 8007985, at 3 (Nov. 17, 2023 order). Next,\nthe court held that Seagate also could not establish an\n“effect” on domestic trade or commerce “giv[ing] rise to” an\nindependent Sherman Act claim. Id. at 5. Despite the\ncollusive “agreements in the United States . . . whereby the\nprices for SAs . . . were set,” it was “‘the overall price-fixing\nconspiracy [that] proximately caused the effect abroad,’” the\ncourt held, and not those collusive agreements. Id. at 4\n(quoting In re Dynamic Random Access Memory (DRAM)\nAntitrust Litig., 546 F.3d 981, 988 (9th Cir. 2008) (“In re\nDRAM”)). The district court thus granted NHK’s partial\nsummary judgment motion in full.\n Finally, the court found Seagate’s Second Amended\nComplaint did not include any “factual allegations that any\nSeagate Plaintiff indirectly purchased an SA or a product\ncontaining an SA.” Id. at 5. The court denied leave to\namend to add any such “indirect purchaser” claims, id. at 6,\nand it certified the May 15, 2023 and November 17, 2023\norders for interlocutory appeal.\n Seagate advances several positions on appeal: (1) that\nthe FTAIA does not apply to any of its claims, (2) that the\ndomestic effects of NHK’s price-fixing proximately caused\nSeagate’s antitrust injuries abroad, and (3) that at least a\n\f SEAGATE TECH. LLC V. NHK SPRING CO. LTD. 13\n\n\nsubset of its claims qualify as “import trade or commerce.”\nSee 15 U.S.C. § 6a. Seagate also argues that Seagate\nTechnology LLC—rather than Seagate Thailand or Seagate\nSingapore—was the “direct purchaser” of all the suspension\nassemblies. We have jurisdiction under 28 U.S.C.\n§ 1292(b), and we hold that Seagate’s theory of domestic\neffects might be viable. We thus vacate the district court’s\norders and remand the case.\n DISCUSSION\n “We review the district court’s grant of summary\njudgment de novo.” Desire, LLC v. Manna Textiles, Inc.,\n986 F.3d 1253, 1259 (9th Cir. 2021) (citation omitted). We\nask, “viewing the evidence in the light most favorable to the\nnonmoving party, whether there are any genuine issues of\nmaterial fact and whether the district court correctly applied\nthe relevant substantive law.” Delta Sav. Bank v. United\nStates, 265 F.3d 1017, 1021 (9th Cir. 2001) (citation\nomitted). We may address “any issue fairly included” within\nan order certified for appeal, “because it is the order that is\nappealable, and not the controlling question identified by the\ndistrict court.” Rivera v. NIBCO, Inc., 364 F.3d 1057, 1063\n(9th Cir. 2004) (citations omitted).\n I. The FTAIA places geographic limits on the reach of\n U.S. antitrust law.\n Congress enacted the FTAIA in 1982 in part to clarify\nUnited States antitrust jurisdiction over international\ntransactions—a question that had vexed our courts. See\nHartford Fire Ins. Co. v. California, 509 U.S. 764, 796 n.23\n(1993); United States v. LSL Biotechnologies, 379 F.3d 672,\n\f14 SEAGATE TECH. LLC V. NHK SPRING CO. LTD.\n\n\n677–78 (9th Cir. 2004). The statute provides that the\nSherman Act:\n\n shall not apply to conduct involving trade or\n commerce (other than import trade or import\n commerce) with foreign nations unless—\n (1) such conduct has a direct, substantial,\n and reasonably foreseeable effect—\n (A) on trade or commerce which is\n not trade or commerce with foreign\n nations, or on import trade or import\n commerce with foreign nations; or\n (B) on export trade or export\n commerce with foreign nations, of a\n person engaged in such trade or\n commerce in the United States; and\n (2) such effect gives rise to a claim under\n the [Sherman Act].\n\n15 U.S.C. § 6a. In other words, the statute generally bars the\nSherman Act from reaching foreign commercial activity, but\nthen adds a caveat allowing jurisdiction for foreign\ncommerce if the anticompetitive conduct (1) involves\n“import trade or . . . commerce” (i.e., goods imported into\nthe United States and bought by Americans) or\n(2) sufficiently affects American domestic or (certain)\nexport commerce that in turn proximately causes an antitrust\ninjury. In re DRAM, 546 F.3d at 985. These limits ensure\nthat the Sherman Act protects “American consumers and\nAmerican exporters, not foreign consumers or producers,”\nand does not overly burden U.S. companies’ conduct\noverseas. Id. at 986 (citation omitted).\n\f SEAGATE TECH. LLC V. NHK SPRING CO. LTD. 15\n\n\n The phrasing of the FTAIA has been called confusing at\ntimes, but the general thrust of the statute is clear. It\nunderscores that American courts generally are not open to\nantitrust injuries occurring overseas, no matter how those\ninjuries arise: “American exporters” and “firms doing\nbusiness abroad” may “enter[] into business arrangements,”\nno matter how “anticompetitive, as long as those\narrangements adversely affect only foreign markets.” F.\nHoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155,\n161 (2004) (citing House Report). If a foreign country does\nnot forbid certain anticompetitive conduct, then American\ncompanies doing business there can engage in such conduct,\neven if it would be unlawful here. Otherwise, we would be\ndisadvantaging American companies competing in foreign\nmarkets.\n Congress thus did not expand the purview of our antitrust\nlaws to reach “foreign conduct that causes independent\nforeign harm,” except “where that conduct also causes\ndomestic harm.” Id. at 166. As this court has noted, a\n“transaction between two foreign firms, even if American-\nowned, should not, merely by virtue of the American\nownership, come within the reach of our antitrust laws,”\nunless specifically provided for by the FTAIA. United\nStates v. Hui Hsiung, 778 F.3d 738, 754 (9th Cir. 2015)\n(quoting House Report).\n Indeed, there is good reason to be circumspect when it\ncomes to the Sherman Act’s territorial scope. Beyond\nmerely supporting American firms’ competitiveness abroad,\nthe Supreme Court has highlighted international comity and\nrefraining from interfering in other countries’ regulation of\ntheir own economies, at least where no Americans are\nharmed. See, e.g., Empagran, 542 U.S. at 164–68. Even\nwhere it is an American-owned company that suffers\n\f16 SEAGATE TECH. LLC V. NHK SPRING CO. LTD.\n\n\nantitrust injury abroad, so long as that company chose to\nincorporate overseas, it must take the good with the bad\nwhen it comes to that country’s legal regime. As the Seventh\nCircuit noted, a company cannot “pick and choose from the\nbenefits . . . of [U.S.] corporate citizenship” by availing itself\nof the Sherman and Clayton Acts while avoiding compliance\nwith United States tax, labor, and environmental\nrequirements by choosing to do business through foreign\nentities. Motorola Mobility LLC v. AU Optronics Corp., 775\nF.3d 816, 822, 827 (7th Cir. 2015); see also Empagran, 542\nU.S. at 166.\n In short, American antitrust protections apply only when\nthere is a direct and proximate link to U.S. harm. Congress\nprovided a few ways to establish that link even where the\nultimate antitrust injury occurs overseas.\n First, “import trade” and “import commerce” are\nexcluded from the FTAIA’s ban on extraterritorial reach\n(i.e., the Sherman Act applies). See 15 U.S.C. § 6a; Hui\nHsiung, 778 F.3d at 754. For example, if Japanese\ncarmakers fix prices of their cars in Japan but import them\ninto the United States, then American antitrust laws would\ncover such conduct under the FTAIA’s “import commerce”\nexclusion.\n Second, the Sherman Act also applies to anticompetitive\nconduct (a) that has a harmful effect on domestic or (certain)\nexport trade or commerce, and (b) such effect “gives rise to”\nan independent Sherman Act claim. 15 U.S.C. § 6a(1)–(2);\nsee Empagran, 542 U.S. at 174. This is sometimes called\nthe FTAIA’s “domestic effects” exception.\n\f SEAGATE TECH. LLC V. NHK SPRING CO. LTD. 17\n\n\n We next turn to whether Seagate meets either the “import\ncommerce” exclusion or the “domestic effects” exception\nunder the FTAIA. 3\n II. The FTAIA’s “import commerce” exclusion does\n not apply because the SAs were not directly\n imported into the United States.\n Seagate Thailand and Seagate Singapore bought price-\nfixed suspension assemblies outside the United States. One\nway these foreign entities could bring a Sherman Act claim\nfor their purchases is if the suspension assemblies were\ndirectly imported into this country. NHK’s price-fixing\nconduct would then be “conduct involving . . . import trade\nor . . . commerce,” and would be exempt from the FTAIA’s\nban on extraterritorial application of U.S. antitrust law. 15\nU.S.C. § 6a.\n But NHK’s price-fixing conduct did not involve “import\ntrade or . . . commerce” because the suspension assemblies\nby themselves were not imported into the United States.\nOnly the finished hard disk drives were imported into the\nUnited States. Any trade or commerce involving suspension\nassemblies was thus not “import trade or . . . commerce,” but\nmerely “trade or commerce . . . with foreign nations.” Id.\n A few factual clarifications may be helpful. First,\nSeagate does not dispute that none of the suspension\nassemblies at issue were directly sent to the United States\n\n3\n Seagate argues that the FTAIA is not relevant here because this case\ninvolves price-fixing conduct that took place in the United States, while\nthe FTAIA only covers “wholly foreign” commerce. Not so. The\nSupreme Court held that the FTAIA applied in Empagran even though\n“some of the anticompetitive price-fixing conduct alleged . . . took place\nin America,” 542 U.S. at 163, 165, and we did the same in Hui Hsiung,\n778 F.3d at 743, 753.\n\f18 SEAGATE TECH. LLC V. NHK SPRING CO. LTD.\n\n\nafter Seagate bought them. They were first incorporated into\nhard disk drive components and hard disk drives, which were\nlater imported to the U.S. Second, Seagate also concedes\nthat it does not sell suspension assemblies—indeed, there is\nno consumer market for them, only for finished hard disk\ndrives.\n Seagate mainly relies on two related arguments to argue\nthat the “import exclusion” applies: (1) that a qualifying\nimport need not be a direct import but may come through\nintermediate steps in “the supply chain,” and (2) that the\nFTAIA exempts not only import trade and commerce but\nalso “conduct involving . . . import commerce,” which,\nagain, includes the broader “supply chain.” Seagate thus\nargues that the one-third of suspension assemblies that later\nentered the U.S. as part of finished hard disk drives qualify\nas imports under the FTAIA, and that NHK’s price-fixing\nactivity constitutes conduct involving import trade.\n These arguments are unconvincing. For starters, we\nusually interpret words as “understood in their ordinary,\neveryday meanings.” Antonin Scalia & Bryan A. Garner,\nREADING LAW: THE INTERPRETATION OF LEGAL TEXTS 69\n(2012). And we have never defined “import trade or\ncommerce” so broadly as to encompass parts incorporated\ninto the imported goods. Rather, we usually refer to the final\nend-product, not specific parts within it, when we talk about\nan imported good. Take smartphones made by the South\nKorean company Samsung. Many of its phones use batteries\nor other parts made in third countries such as China or\nVietnam. We would normally describe Samsung phones as\nimported goods from South Korea, despite some internal\nparts being made elsewhere.\n\f SEAGATE TECH. LLC V. NHK SPRING CO. LTD. 19\n\n\n In Hui Hsiung, we strongly suggested that the “import\ntrade or commerce” exception in the FTAIA applies only to\nthe final imported end-product. That case dealt with TFT–\nLCD liquid crystal display panels found in many computer\nscreens. While the case involved both panels that were\ndirectly sold into the United States and panels first\nincorporated into computers abroad and then sold here, 778\nF.3d at 753, we considered only panels that came directly to\nthe U.S. (as panels) in analyzing “import trade,” see id. at\n755. We repeatedly emphasized that the defendant\nmanufacturers sold panels “to customers in the United\nStates.” Id. And most of all, we explained that even though\nthe defendants “did not manufacture any consumer products\nfor importation into the United States,” they “negotiated\nwith United States companies in the United States to sell\nTFT–LCD panels at [fixed] prices . . . . [and] [i]mportation\nof this critical component of various electronic devices is\nsurely ‘import trade or import commerce.’” Id. at 756\n(emphasis added). In other words, the display panels by\nthemselves were imported as components in Hui Hsiung.\nWe thus held that “transactions . . . directly between the U.S.\nplaintiff purchasers and the defendant cartel members are\n. . . import commerce,” and “goods manufactured abroad\nand sold in the United States [are] import commerce.” Id. at\n755 (citations omitted). In contrast here, the suspension\nassemblies were neither purchased by buyers in the United\nStates nor “sold” in (or into) the United States. In short,\nmere parts in the international supply chain lack sufficient\nU.S. nexus to justify the extraterritorial reach of American\nantitrust laws.\n True, Hui Hsiung dealt with the sufficiency of an\nindictment and of evidence to support a jury verdict and thus\ndid not define the outer limits of import trade. See id. at 755–\n\f20 SEAGATE TECH. LLC V. NHK SPRING CO. LTD.\n\n\n56 & n.8. But nothing in the case suggests that it would\ninclude activities “up and down the supply chain,” as\nSeagate suggests. It is also true that suspension assemblies\n“have no use other than as a hard-drive component,” as\nSeagate notes. But Seagate fails to explain why this should\nwork in its favor. No circuit authority suggests that every\nforeign component cartel must have redressability under the\nFTAIA’s import exclusion, seeing as relief may still be\navailable under the statute’s effects exceptions. See, e.g.,\nHui Hsiung, 778 F.3d at 760.\n In sum, Seagate was harmed not in the import trade but\nseveral steps up in its manufacturing supply chain—and a\n“transaction between two foreign firms” typically must seek\nrelief not through the FTAIA’s import commerce exclusion\nbut through the domestic effects exception. Id. at 754. We\nturn to that next.\n III. The FTAIA’s “domestic effects” exception might\n apply and allow Seagate to pursue its antitrust\n claims against NHK.\n The FTAIA has another exception—“domestic\neffects”—that allows extraterritorial application of\nAmerican antitrust law. Foreign non-import commerce can\nfall within the Sherman Act if the anti-competitive conduct\n(1) has a “direct, substantial, and reasonably foreseeable\neffect” on certain U.S.-based commerce, and (2) that effect\n“gives rise to” an antitrust claim. See 15 U.S.C. § 6a. As\nthe Supreme Court stated in Empagran, “there should be no\nAmerican antitrust jurisdiction absent a direct, substantial\nand reasonably foreseeable effect on domestic commerce or\na domestic competitor.” 542 U.S. at 163 (quoting House\nReport); accord Hui Hsiung, 778 F.3d at 754.\n\f SEAGATE TECH. LLC V. NHK SPRING CO. LTD. 21\n\n\n The two requirements above are strict by design. A\n“direct” effect on U.S.-based commerce means the effect\nmust “follow[] as an immediate consequence of the\ndefendant’s activity.” LSL, 379 F.3d at 680; see Hui Hsiung,\n778 F.3d at 758 & n.9. An “effect cannot be ‘direct’ where\nit depends on . . . uncertain intervening developments.” LSL,\n379 F.3d at 681. And to “give[] rise to” a Sherman Act claim\nmeans the effect (on U.S. commerce) must proximately\ncause the antitrust injury. In re DRAM, 546 F.3d at 988.\n“‘[B]ut for’ causation cannot suffice for the FTAIA,” such\nas where intervening forces may have caused the ultimate\nantitrust injury. Id. at 987; see Hui Hsiung, 778 F.3d at 758.\n Together, these requirements ensure there is a sufficient\nnexus to the United States such that we open our courts\ndespite the foreign elements. They require a tight causal link\nbetween the defendant’s anticompetitive conduct, the effect\non U.S. commerce, and the ultimate antitrust injury. There\nmust be a direct impact in the United States tethered to a\nSherman Act violation. Put differently, U.S. courts are only\nopen to foreign antitrust injuries that arise through harm to\nU.S. commerce. See Empagran, 542 U.S. at 174.\n A. NHK’s price-fixing had a harmful effect on U.S.\n domestic commerce.\n We address the first prong of the domestic effects\nexception: Seagate must show that NHK’s conduct caused\nan immediate harm to U.S. domestic commerce. See id.\n(requiring an adverse effect). Seagate asserts that “NHK\ncolluded to rig bids in the United States, and the domestic\neffects of that conduct [were] distorted bidding, suppressed\ncompetition, and binding agreements incorporating price-\nfixed terms.”\n\f22 SEAGATE TECH. LLC V. NHK SPRING CO. LTD.\n\n\n These facts are largely undisputed. NHK admits in its\nplea deal with the United States government that it agreed\nwith another competitor “to refrain from competing on\nprices for, fix the prices of, and allocate their respective\nmarket shares for, HDD suspension assemblies to be sold in\nthe United States and elsewhere.” It further admits it\n“exchanged [suspension assembly] pricing information,\nincluding anticipated pricing quotes,” with its competitor\nand “used the exchanged information to inform their\nnegotiations with U.S. and foreign customers that purchased\nHDD suspension assemblies.” The parties in their briefing\nhave not identified how many of NHK’s price-fixed SAs\nwere sold within the United States or to American\ncompanies but NHK sold them to a wide range of\ncompanies, including Seagate, Toshiba, Western Digital,\nQuantum, IBM, Fujitsu, Samsung, and Hitachi, during the\nrelevant period. While we do not know the dollar value of\nthe price-fixed SAs sold in the United States, NHK in its plea\ndeal conceded that “[d]uring the relevant period, the\nconspiracy . . . had a direct, substantial, and reasonably\nforeseeable effect on interstate and import trade []\ncommerce.” So NHK’s plea agreement alone appears to\nconfirm the first prong of the domestic effects exception:\nNHK admits to fixing prices of suspension assemblies sold\nin the United States (as well as around the world), and\nNHK’s actions apparently had a direct, substantial, and\nreasonably foreseeable effect on U.S. commerce. See 15\nU.S.C. § 6a(1). 4\n\n4\n NHK’s argument that a corrupt U.S. bidding process can only\nconstitute “conduct” under the FTAIA—and not an “effect” of conduct—\nbetrays its plea deal that “the conspiracy involved and had a direct,\nsubstantial, and reasonably foreseeable effect on” interstate commerce.\nWhile the actual “stuff” of NHK’s conspiracy (illicit meetings, illegal\n\f SEAGATE TECH. LLC V. NHK SPRING CO. LTD. 23\n\n\n To be sure, the domestic effect from NHK’s\nanticompetitive conduct did not directly injure Seagate\nTechnology LLC because it did not buy the suspension\nassemblies here—its foreign entities did abroad. But the first\nprong of the domestic effects exception still has been met\nbecause NHK admitted in its plea deal that it “fix[ed] the\nprices” of “suspension assemblies to be sold in the United\nStates and elsewhere.” (emphasis added). In other words,\nNHK’s price-fixing apparently had a significant and direct\nimpact on domestic commerce because companies (other\nthan Seagate Technology LLC) overpaid for the suspension\nassemblies bought here in the states.\n The FTAIA’s statutory language does not require more\nthan that to satisfy the first prong: The anticompetitive\nconduct must have “a direct, substantial, and reasonably\neffect on trade or commerce which is not trade or commerce\nwith foreign nations [i.e., domestic commerce] or on import\ntrade or import commerce with foreign nations.” 15 U.S.C.\n§ 6a. Unlike the second prong (which refers to a Sherman\nAct “claim” by the plaintiff), the first prong makes no\nmention of “claim” or “injury” by the plaintiff—it just\nrequires a direct and substantial “effect” on the American\neconomy. Stated differently, the first prong does not require\nthe plaintiff to have suffered an injury in the United States in\naddition to outside of it; indeed, if it did suffer harm in the\nUnited States, the FTAIA may not even apply. We\nrecognized this point in In re DRAM: The plaintiff there was\na “foreign consumer that made its purchases entirely outside\n\nbids, and so on) count as conduct, “higher U.S. prices” can be a\n“domestic effect.” In re DRAM, 546 F.3d at 984, 988; see also\nEmpagran, 542 U.S. at 175 (calling “higher prices in the United States”\nan “adverse domestic effect”); 15 U.S.C. § 1 (prohibiting conduct with\nthe effect of restraining trade).\n\f24 SEAGATE TECH. LLC V. NHK SPRING CO. LTD.\n\n\nof the United States,” but we assumed that the first prong of\nthe domestic effects exception had been met because the\nconspiracy had “raise[ed] the price of DRAM to customers\nin both the United States and foreign countries.” 546 F.3d\nat 989, 984. The plaintiff’s claim in In re DRAM, however,\nfailed because it could not meet the second prong that the\ndomestic effect of higher U.S. prices proximately caused its\nforeign injury. Id. The D.C. Circuit appears to share our\nview of the first prong requirement of the domestic effects\nexception. See Empagran S.A. v. F. Hoffman-LaRoche Ltd.,\n417 F.3d 1267, 1269 (D.C. Cir. 2005) (plaintiffs “need only\ndemonstrate therefore that the U.S. effects of the\n[defendants’] allegedly anti-competitive conduct ‘[g]ave rise\nto’ their claims” because the statutory text looks at the “situs\nof the effects of the allegedly anti-competitive conduct,” not\nthe “situs of the . . . resulting injuries”) (emphasis added).\n Similarly here, Seagate need not show that it was injured\ndirectly from the domestic effect of NHK’s anticompetitive\nconduct here in America under the first prong of the\ndomestic effects exception. It is enough to show that NHK’s\nactions had a direct, substantial, and reasonably foreseeable\neffect on domestic commerce by fixing prices of suspension\nassemblies sold here. But that is not the end of the matter.\nUnder the second prong, Seagate must show that this\ndomestic effect gave “rise to a claim under the [Sherman\nAct].” Id. We address that next.\n B. The tainted RFQ prices potentially gave rise to\n Seagate’s antitrust claims.\n To meet the second prong of the domestic effects\nexception, Seagate must show that the harm of NHK’s\nconduct on U.S. domestic commerce directly caused Seagate\nThailand’s and Seagate Singapore’s respective overcharge\n\f SEAGATE TECH. LLC V. NHK SPRING CO. LTD. 25\n\n\nclaims. See 15 U.S.C. § 6a(2). In other words, we ask\nwhether “[o]ther actors or forces may have affected the\nforeign prices”—if so, then the plaintiff has not met the\nsecond prong. In re DRAM, 546 F.3d at 988.\n Most foreign injury claims fail at this step because it is\noften difficult to show that the harmful effect on U.S.\ndomestic commerce proximately caused the foreign antitrust\ninjury. Too often the link is too speculative or attenuated.\nSeagate’s claim, however, appears to be viable because of\nthe unique nature of how the master Product Supply\nAgreement and the quarterly RFQs—all negotiated in the\nUnited States by Seagate Technology LLC—set the U.S.\nprices for suspension assemblies, which in turn set the prices\nof the foreign suspension assembly purchases. As discussed,\nSeagate has provided evidence that its foreign subsidiaries\nlacked any authority over the price, quantity, or timing of\ntheir orders. They had to follow the lead of U.S.-based\nSeagate Technology LLC and entered orders at the (inflated)\nprices negotiated by Seagate Technology LLC’s CMT unit.\nAt oral argument, NHK admitted that suspension assembly\nprices were negotiated not per transaction but “quarterly”—\ni.e., through the RFQ process. Thus, the higher U.S. prices\nfor suspension assemblies resulting from NHK’s price-\nfixing would have directly caused Seagate’s foreign\nsubsidiaries to overpay. Or as Seagate would have it, there\nonly was one price, the U.S. and foreign prices being “one\nand the same.”\n The district court credited this evidence in its May 15\norder, finding that Seagate Technology LLC’s U.S.-based\n“agreement[s] governed the sales when ‘purchase orders’ for\nSAs were placed by Seagate Thailand” including as to price.\nThe court in its November 17 order also acknowledged\nSeagate’s theory that “the prices for SAs to be charged to\n\f26 SEAGATE TECH. LLC V. NHK SPRING CO. LTD.\n\n\nSeagate entities located outside the United States were set”\ndirectly by the tainted “agreements in the [U.S.].” Yet the\ndistrict court called this theory “essentially the same” as In\nre DRAM, 546 F.3d at 988–89. The court observed, “[T]hat\nthe conspiracy had effects in the United States and abroad,\ndoes not show that the effect in the United States, rather than\nthe overall price-fixing conspiracy itself, proximately caused\nthe effect abroad.” In re HDD, 2023 WL 8007985, at 4\n(quoting In re DRAM, 546 F.3d at 988).\n We believe the district court erred in reading In re DRAM\nas categorically holding that rigged U.S. prices cannot\nproximately cause injuries abroad. In that case, we rejected\nthe tenuous theory that higher U.S. prices for computer\nmemory chips (i.e., the domestic effect) proximately caused\nhigher global pricing (i.e., the foreign injury) because the\nplaintiff relied on the interconnected nature of the computer\nmemory chip market and the leading role of U.S. buyers.\n546 F.3d at 984. Relying on a chain of inferences about\nglobal pricing of memory chips, the plaintiff in In re DRAM\ndid “not sufficiently allege a theory that the higher U.S.\nprices proximately caused [the plaintiff’s] foreign injury of\nhaving to pay higher prices outside the United States.” Id.\nat 989. In short, there were links missing in the chain:\n“Other actors or forces may have affected the foreign\nprices.” Id. at 988.\n Seagate’s theory, in contrast, is rooted in the certainty of\nbinding pricing contracts—not the complex vagaries of the\nglobal pricing market. It does not rely on the alleged\nequivalence of prices across global trading markets that\nmany courts have rejected. See id; see also Empagran, 542\n\f SEAGATE TECH. LLC V. NHK SPRING CO. LTD. 27\n\n\nU.S. at 175. 5 Rather, Seagate explains exactly how\n“[d]efendants’ activities resulted in the U.S. prices directly\nsetting the worldwide price” and thus causing the foreign\nantitrust injury: NHK and a competitor conspired to fix\nprices, setting inflated U.S. prices (i.e., the domestic effect)\nthat Seagate’s foreign entities then accepted as a matter of\ncompany policy and contractual requirements (i.e., the\nforeign injury). In re DRAM, 546 F.3d at 989.\n We acknowledge, however, that factual questions exist\nabout whether the post-RFQ prices truly set and limited what\nthe foreign subsidiaries could pay. For example, was\nSeagate Singapore controlled just as Seagate Thailand was\nfor suspension assembly purchases, and did they always use\nthe same price? These would be best for the district court to\nconsider: While we suspect Seagate has adduced enough\nevidence of a direct, proximate relationship to pass summary\njudgment, see 15 U.S.C. § 6a(2), we remand to assess this\nissue.\n C. Foreign antitrust injury is only eligible for relief when\n U.S. commerce is first harmed.\n We conclude with a few remarks on why this case is\ndifferent from other cases involving foreign antitrust\ninjuries. Opening our federal courts to an injury like this one\nmay seem extraordinary at first blush: After all, a foreign\n\n5\n In Empagran, the Court held that the “domestic effect” exception did\nnot apply because it “assumed that the anticompetitive conduct here\nindependently caused foreign injury; that is, the conduct’s domestic\neffects did not help to bring about that foreign injury.” 542 U.S. at 175\n(emphasis added). The Court used the word “independent” 35 times in\nthe opinion, underscoring that the domestic effect must cause the foreign\ninjury. Here, Seagate appears to have adduced evidence that its foreign\ninjuries are not independent of the conspiracy’s domestic effects.\n\f28 SEAGATE TECH. LLC V. NHK SPRING CO. LTD.\n\n\ncompany bought a price-fixed good from another foreign\ncompany abroad. Why should that foreign company have\naccess to our courts based on our laws? Indeed, the Seventh\nCircuit’s decision in Motorola, 775 F.3d 816, offers valid\nreasons to tread cautiously in the realm of extraterritorial\njurisdiction. Although that case ultimately was decided\nbased on standing rather than the FTAIA, see Hui Hsiung,\n778 F.3d at 760, it flagged the practical problems of\nredressing wholly foreign injuries in American courts.\n\n “[T]he immediate victims of the price fixing\n were [Motorola’s] foreign subsidiaries,\n and . . . U.S. antitrust laws are not to be used\n for injury to foreign customers.” Motorola,\n 775 F.3d at 820. “Companies operate\n overseas . . . to take advantage of many legal\n provisions of that country: labor law,\n environmental law, and tax law.” Id. at 827.\n “The mind boggles at the . . . number of\n antitrust suits that major American\n corporations could file against the\n multitudinous suppliers of their prolific\n foreign subsidiaries if Motorola had its way.”\n Id. at 826 (all citations omitted).\n\nThe court thus held that Motorola’s parent entity—Motorola\nMobility LLC—could not sue on its subsidiaries’ behalf for\nthe injuries the subsidiaries suffered abroad. Id. at 820, 825\n(declining “to give Motorola rights to take the place of its\nforeign companies and sue on their behalf under U.S.\nantitrust law”).\n These appear valid points, but the facts and context of\nour case are significantly different. If we look deeper, our\n\f SEAGATE TECH. LLC V. NHK SPRING CO. LTD. 29\n\n\nholding is consistent with the Supreme Court’s rule in\nEmpagran, considerations of judicial policy, and the\ndecisions of our sister circuits.\n First off, the Seventh Circuit in Motorola did not\nsubstantially grapple with the FTAIA’s language or the case\nlaw construing that statutory text, and instead only\nglancingly referenced them—perhaps because its holding\nwas based on standing for a derivative buyer, not the FTAIA.\nAs a policy matter, the Seventh Circuit advocated a bright-\nline rule that American courts should not entertain Sherman\nAct claims based on foreign injuries because the harmed\nparties could seek relief under the laws of the foreign\ncountry. Motorola, 775 F.3d at 820. But the parties here\n(correctly) agree that the FTAIA does not bar foreign\ninjuries from relief under that statute so long as the required\ndomestic effect and proximate cause are shown. As the\nSupreme Court has noted, “Congress [did not] place the\nrelevant words ‘gives rise to a claim’ in the FTAIA to\nsuggest any geographical limitation.” Empagran, 542 U.S.\nat 174 (citing 15 U.S.C. § 6a); see also Empagran, 417 F.3d\nat 1269 (“FTAIA’s ‘domestic effects’ requirement ‘does not\nexclude all persons abroad from recovering under the\nantitrust laws of the United States’”) (citation omitted). And\nas we explained earlier, the domestic effect of higher U.S.\nprices gave rise to the foreign injury suffered by Seagate\nThailand and Seagate Singapore because they adopted those\nrigged U.S. pricing in buying the suspension assemblies.\n Second, we are not confronted with a typical foreign\ninjury here but rather a case suffused with domestic\nelements. Seagate Singapore and Seagate Thailand suffered\ninjuries because of the price-fixing first inflicted on U.S. soil\nand suffered by Americans. NHK admitted it entered into a\nconspiracy to “fix the prices of . . . suspension assemblies to\n\f30 SEAGATE TECH. LLC V. NHK SPRING CO. LTD.\n\n\nbe sold in the United States and elsewhere.” Nearly all the\nmisconduct in this case—whether bid rigging, illegal job\nposts, and so on—either targeted or centered on the United\nStates because fixing U.S. commercial activity meant\ninflating the price of suspension assemblies everywhere.\nAccording to Empagran, the Sherman Act very much was\nintended to cover harm like this. 542 U.S. at 163. Put\nanother way, if a claim for foreign injury passes the FTAIA’s\nproximate cause test, then such foreign harm no longer is\n“independent” of the domestic harm that is properly the\nprovince of our courts—the harms are “intertwined.” Id. at\n166. Simply put, Americans too were harmed by NHK’s\nprice-fixing, even if foreign companies are the ones suing\nbased on their injuries suffered abroad. 6 In such a unique\nscenario, we can and must allow civil claimants to claim\ndamages, especially given the government’s decision not to\nseek restitution in its criminal prosecution because of its\nassumption that civil remedies would be available to private\nparties.\n And because the FTAIA imposes very stringent “direct\neffect” and proximate cause requirements, it ensures that any\nforeign injuries covered by the Sherman Act are the direct\nresult of harm to United States commerce—just as Congress\nintended. See Empagran, 542 U.S. at 163 (citing House\nReport). Tenuous or speculative injuries will not pass this\ntest. See, e.g., In re DRAM, 546 F.3d at 989–90 (dismissing\ntheory of causation that was too vague, speculative, and\ncould not be explained by counsel at oral argument). Nor\nwill indirect or modest effect on domestic commerce—it\n\n6\n To be fair, Americans will not directly reap the benefits of any damages\naward in this case. But the deterrent effect on future anticompetitive\nbehavior will still benefit the United States.\n\f SEAGATE TECH. LLC V. NHK SPRING CO. LTD. 31\n\n\nmust be “direct” and “substantial.” We thus do not see our\ndecision as opening U.S. courts to a flood of lawsuits from\nsuppliers overseas.\n Finally, the international comity concerns raised in\nMotorola are addressed (or perhaps outweighed) by the\nprice-fixing’s substantial impact on United States\ncommerce. See 775 F.3d at 824. As the Court noted in\nEmpagran, we “have long held that application of our\nantitrust laws to foreign anticompetitive conduct is . . .\nconsistent with principles of prescriptive comity[] insofar as\nthey reflect a legislative effort to redress domestic” harm.\n542 U.S. at 165. International comity may have to be cast\naside when foreign misconduct harms Americans. When\nforeigners engage in unlawful behavior in the United States\nthat harms Americans, we need not reflexively close our\ncourthouse doors just because another foreign company\ntakes the lead against such illegal conduct.\n * * *\n Finally, we affirm the district court’s determination that\nSeagate Thailand was not a mere purchasing agent for\nSeagate Technology LLC because it did not purchase the\nsuspension assemblies “for” Seagate LLC but bought them\nfor its own purposes. But the district court’s statement that\nSeagate’s Second Amended Complaint “includes no factual\nallegations that any Seagate Plaintiff indirectly purchased an\nSA or a product containing an SA” appears to be incorrect.\nWhile indirect purchases are not the focus of the Second\nAmended Complaint, it repeatedly alleges that Seagate\nTechnology LLC bought suspension assemblies; these\npurchases necessarily were indirect. Moreover, Seagate’s\nSherman Act claim alleges that NHK “[sold] suspension\nassemblies to customers in the U.S. or elsewhere for\n\f32 SEAGATE TECH. LLC V. NHK SPRING CO. LTD.\n\n\nincorporation into products sold in the U.S. at\nsupracompetitive prices”—which appears to state a pass-on\ntheory of harm.\n Because an allegation under FED. R. CIV. PROC. 8 does\nnot require any magic words but only a short and plain\nstatement of the claim, Seagate Technology LLC may be\nentitled to test whether its alleged high degree of control over\nSeagate Thailand and Seagate Singapore gives it standing to\nsue as an indirect purchaser of price-fixed suspension\nassemblies. See Ill. Brick Co. v. Illinois, 431 U.S. 720, 736\nn.16 (1977); Del. Valley Surgical Supply Inc. v. Johnson &\nJohnson, 523 F.3d 1116, 1123 n.1 (9th Cir. 2008)\n(recognizing “standing for an indirect purchaser if . . . the\ndirect purchaser is owned or controlled by the indirect\npurchaser”); see also In re ATM Fee Antitrust Litig., 686\nF.3d 741, 749 (9th Cir. 2012) (“[I]ndirect purchasers may\nsue when customers of the direct purchaser own or control\nthe direct purchaser . . . .”). We leave it to the district court\nin the first instance to determine whether Seagate\nTechnology LLC has a viable indirect purchaser claim under\nIllinois Brick.\n CONCLUSION\n We vacate the district court’s May 15, 2023 and\nNovember 17, 2023 orders granting partial summary\njudgment for NHK and remand for further proceedings\nconsistent with this opinion.\n VACATED AND REMANDED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11237654/", "author_raw": "LEE, Circuit Judge:"}]}	CONSUELO M CALLAHAN	KENNETH K LEE	SCOTT H RASH	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10771069/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,771,070	Gonzalez v. City of Phoenix	2026-01-08	24-2510	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Johnnie B. Rawlinson, Patrick J. Bumatay, and Gabriel P. Sanchez, Circuit Judges.", "parties": "", "opinions": [{"type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\nLAURA GONZALEZ, individually No. 24-2510\nand on behalf of the statutory\n D.C. No.\nbeneficiaries of Ramon Timothy\n 2:21-cv-01340-\nLopez, and in her capacity as the\n MTL-DMF\nPersonal Representative of the estate\nof Ramon Timothy Lopez,\n\n Plaintiff - Appellee, OPINION\n\n v.\n\nCITY OF PHOENIX, a municipality;\nBOBBI COZAD; OSCAR\nJIMENEZ; BRETT\nLINGENFELTER; ALONSO\nLOPEZ; ROSZELL MOSLEY;\nTODD STEVENS; ANDREW\nWILLIAMS,\n\n Defendants - Appellants.\n\n Appeal from the United States District Court\n for the District of Arizona\n Michael T. Liburdi, District Judge, Presiding\n\n Argued and Submitted May 12, 2025\n Phoenix, Arizona\n\n2 GONZALEZ V. CITY OF PHOENIX\n\n\n Filed January 8, 2026\n\n Before: Johnnie B. Rawlinson, Patrick J. Bumatay, and\n Gabriel P. Sanchez, Circuit Judges.\n\n Opinion by Judge Sanchez;\n Partial Concurrence and Partial Dissent by Judge Bumatay\n\n\n SUMMARY \n\n\n Excessive Force\n\n The panel affirmed the district court’s denial of qualified\nimmunity to Phoenix Police Department officers in a suit\nalleging that after apprehending decedent Timothy Lopez\nfollowing a foot chase, the officers used excessive force by\napplying a RIPP hobble restraint that bent Lopez’s body\nupward into a hogtied position while he lay face down in a\npolice vehicle, during which he became unresponsive, and\nwas later pronounced dead.\n The panel first held that the officers’ actions of placing\nand transporting Lopez in a RIPP constituted a seizure for\nFourth Amendment purposes. The panel next held that\nviewing the evidence in the light most favorable to plaintiff,\nLopez’s mother, a jury could determine that the officers’ use\nof force was unreasonable because the RIPP restraint exerted\nsignificant pressure on Lopez’s chest, restricting his ability\nto breathe and unnecessarily creating a substantial risk of\n\n\n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\n GONZALEZ V. CITY OF PHOENIX 3\n\n\ndeath or serious bodily injury. Furthermore, the law from\nthis circuit has long established that in a situation in which\nan arrestee surrenders and is rendered helpless, any\nreasonable officer would know that a continued use of force\nor a refusal without cause to alleviate its harmful effects\nconstitutes excessive force. Accordingly, the panel affirmed\nthe district court and remanded for further proceedings.\n Concurring in the judgment in part and dissenting in part,\nJudge Bumatay wrote that though the initial use of the RIPP\nrestraint was reasonable, he agreed with the majority that the\nofficers who left Lopez prone on his stomach while\neffectively hogtied in the back of the police vehicle were not\nentitled to qualified immunity. However, he would have\ngranted qualified immunity to Officers Lopez and Cozad\nbecause no case clearly establishes that merely driving a car\na short distance with an improperly restrained suspect\nviolates the Constitution. This action—transporting a\nsuspect—is very different from the actions of officers who\nactively continued to use what allegedly amounted to deadly\nforce on Lopez.\n\n\n\n COUNSEL\n\nJesse M. Showalter (argued) and Joel B. Robbins, Robbins\nCurtin Millea & Showalter LLC, Phoenix, Arizona, for\nPlaintiff-Appellee.\nAshley E. Caballero-Daltrey (argued) and John T.\nMasterson, Jones Skelton & Hochuli PLC, Phoenix,\nArizona; for Defendants-Appellants.\n\n4 GONZALEZ V. CITY OF PHOENIX\n\n\n OPINION\n\nSANCHEZ, Circuit Judge:\n\n After pursuing and apprehending Ramon Timothy Lopez\nin a foot chase, officers of the Phoenix Police Department\napplied a “RIPP” restraint connecting Lopez’s ankle\nrestraint to his handcuffed wrists and causing Lopez’s body\nto bend upward in a hogtied position. Lopez grunted and\ngasped as he lay on his chest and then became limp. He was\ncarried to a patrol vehicle and laid face down across the back\nseat with the RIPP restraint still in place. After officers\ndrove Lopez to a nearby parking lot, they found him\nunresponsive. He was transported to a hospital and\npronounced dead. Lopez’s mother, Plaintiff Laura\nGonzalez, sued the City of Phoenix and several of the\nofficers alleging excessive force and related federal and state\nlaw claims. Defendants now appeal the district court’s\npartial denial of their motion for summary judgment.\n In this interlocutory appeal, we address a narrow\nquestion: whether defendants are entitled to qualified\nimmunity from Plaintiff’s claim that the officers used\nexcessive force by placing and transporting Lopez in a\nhogtied and prone position after he no longer posed a risk of\nflight or a threat to officer safety. Viewing the evidence in\nthe light most favorable to Plaintiff, a jury could determine\nthat the officers’ use of force was unreasonable because the\nRIPP restraint exerted significant pressure on Lopez’s chest,\nrestricting his ability to breathe and unnecessarily creating a\nsubstantial risk of death or serious bodily injury.\nFurthermore, law from our circuit has long established that\n“[i]n a situation in which an arrestee surrenders and is\nrendered helpless, any reasonable officer would know that a\n\n GONZALEZ V. CITY OF PHOENIX 5\n\n\ncontinued use of force or a refusal without cause to alleviate\nits harmful effects constitutes excessive force.” Drummond\nv. City of Anaheim, 343 F.3d 1052, 1062 (9th Cir. 2003)\n(quoting LaLonde v. Cnty. of Riverside, 204 F.3d 947, 961\n(9th Cir. 2000)) (cleaned up). Accordingly, we affirm the\ndistrict court and remand for further proceedings.\n I.\n A.\n On August 4, 2020, the Phoenix Police Department\n(“Phoenix PD”) received a report of a man acting erratically.\nPhoenix Police Officers Todd Stevens, Andrew Williams,\nand Roszell Mosley arrived on the scene. They watched\nLopez remove a wallet from his pocket, empty its contents,\nand discard the wallet. Lopez appeared “spooked” and\n“paranoid” as he bounced from car to car, ran into a wall,\nand fell down. Based on his behavior, the officers suspected\nthat Lopez was high on methamphetamine.\n Officer Stevens approached Lopez by a liquor store\nentrance, and Lopez ran out of the store. Officer Stevens\ngave chase and ordered Lopez to stop. Lopez ignored the\ncommand and ran onto a busy street with ongoing traffic.\nOfficer Stevens followed Lopez and pulled him down.\nOfficers Williams and Mosley arrived moments later. They\ngrabbed Lopez’s arms and wrists as Officer Stevens called\nfor backup and ordered Lopez to roll onto his stomach.\nLopez struggled to free himself from the officers’ grasp by\npulling his arms and kicking his legs up. Pressed to the\nground, Lopez appeared distressed, disoriented, and out of\nbreath. He grunted and cried out several times. Officer\nMosley observed, “I think his left arm’s broken.” At the\ntime Lopez was detained, the ambient air temperature in\n\n6 GONZALEZ V. CITY OF PHOENIX\n\n\nPhoenix was 101 degrees and the temperature of the asphalt\nwas approximately 145 degrees.\n After a minute of struggle, the officers rolled Lopez onto\nhis stomach. They pressed him face down and placed\nhandcuffs on his wrists. Officer Stevens held Lopez’s left\nshoulder or upper arm and lifted it off the ground, Officer\nWilliams held Lopez’s ankles, and Officer Mosley pressed\nhis knee to Lopez’s back. Lopez told the officers, “You guys\nare killing me.” Lopez continued to cry out and grunt but\nstopped struggling. The officers held Lopez in a prone\nposition for nearly three minutes. More officers arrived in\nresponse to the call for backup. Officers Alonso Lopez,\nBobbi Cozad, Oscar Jimenez, and Brett Lingenfelter parked\ntheir patrol vehicles to block the street traffic. Officer\nJimenez then applied a RIPP restraint on Lopez.\n A RIPP restraint is a type of hobble restraint meant to\ntemporarily secure combative or violent subjects to prevent\ninjury to the subject or officers and to minimize the\nopportunity for escape. A RIPP restraint consists of a nylon\nloop with a metal fastener or cinch on one end, a long strap\nextending from the loop, and a brass hook or latch at the end\nof the strap to connect to a subject’s handcuffs. Phoenix PD\nare trained to apply a RIPP restraint by securing the RIPP\nrestraint around the subject’s ankles, extending the strap\nupward from the ankle restraint, and attaching the hook to\nthe subject’s handcuffs. Officers are trained to never shorten\nthe RIPP restraint by looping the strap through the subject’s\nhandcuffs and fastening the hook to the subject’s ankle\nrestraint. Doing so lifts the suspect’s legs in the air and\nupward toward the wrists and impedes the suspect’s ability\nto breathe. Phoenix PD are also trained to leave sufficient\nlength on the RIPP restraint strap so that officers can raise\nthe suspect onto his feet to enable transport.\n\n GONZALEZ V. CITY OF PHOENIX 7\n\n\n According to Plaintiff, the officers’ application of the\nRIPP restraint on Lopez deviated from department training\nand policy and effectively hogtied Lopez. Officer Jimenez\nshortened the RIPP restraint by looping it through Lopez’s\nhandcuffs and attaching the hook to Lopez’s ankle strap. In\ndoing so, the shortened RIPP restraint bent Lopez’s arms\nback and lifted his legs up so that his ankles were lifted off\nthe ground and pulled toward his wrists. Once bound, Lopez\ndid not move. Officer Mosley continued to press his knee\non Lopez’s back for fifty-five seconds. Lopez remained\nhogtied and face down against the pavement for nearly one\nminute.\n In that position, Lopez’s condition appeared to worsen.\nOfficer Cozad later testified that Lopez was grunting, his\nskin tone appeared abnormal, and he “obviously needed\nmedical attention.” Lopez soon stopped making noises, and\nas multiple officers observed, his body went limp. Officer\nWilliams radioed the Fire Department for medical\nassistance. Officer Mosley lifted his knee from Lopez’s\nback. By this point, nearly six minutes had elapsed since the\nofficers first held Lopez down on the asphalt. The officers\ntried to pull Lopez up, as Officer Mosley told him to “sit up”\nand “relax”––but Lopez did not respond. The officers did\nnot, however, adjust his RIPP restraint.\n Officers Mosley, Stevens, and Jimenez lifted Lopez’s\nbody by his arms and legs and carried him to a nearby police\nvehicle. They placed Lopez face down in the back seat, with\nhis chest outstretched and his legs still bent up, secured by\nthe RIPP restraint and handcuffs. A fourth officer, Officer\nLingenfelter, moved to the other side of the vehicle and\nhelped pull Lopez across the back seat. Lopez’s torso rested\natop a hard plastic hump dividing the seats. Officer\n\n8 GONZALEZ V. CITY OF PHOENIX\n\n\nLingenfelter pushed Lopez’s shoulders into the vehicle and\nshut the car door.\n Officers Cozad and Lopez drove Lopez to a nearby\nparking lot. The drive lasted two minutes. Neither officer\nturned to observe Lopez or check on his condition during the\ndrive. Lopez continued to lay face down in the back seat\nwith his ankles bound to his wrists and his legs lifted upward.\nOnce they reached the parking lot, Officers Cozad and Lopez\nremoved Lopez from the vehicle and discovered that he was\nunresponsive. They removed the RIPP restraint and sat him\nup. The officers rested Lopez against the car door, poured\nwater over his head, and rubbed his sternum. But they\nobserved that Lopez’s eyes had rolled backward.\n Phoenix Fire Department personnel arrived and found\nthat Lopez was not breathing and had no pulse. Paramedics\nwere unable to resuscitate him. Lopez was transported to a\nhospital, where he was pronounced dead. According to the\nmedical examiner’s report, Lopez’s death was caused by\n“[c]ardiac arrest in the setting of methamphetamine\nintoxication, dilated cardiomyopathy, and physical\nrestraint.”\n B.\n Plaintiff Laura Gonzalez filed suit individually, on\nbehalf of Lopez’s statutory beneficiaries, and in her capacity\nas the personal representative of Lopez’s estate under 42\nU.S.C. § 1983 and Arizona law. She named Defendants City\nof Phoenix and Officers Cozad, Jimenez, Lingenfelter,\nLopez, Mosley, Stevens, and Williams in the action. In her\ncomplaint, Gonzalez asserted Fourth Amendment claims of\nfalse arrest and excessive force, a Fourteenth Amendment\nclaim for deprivation of familial society and companionship,\nclaims against the City of Phoenix under Monell v.\n\n GONZALEZ V. CITY OF PHOENIX 9\n\n\nDepartment of Social Services, 436 U.S. 658 (1978), and\nstate law claims of wrongful death and negligent supervision\nagainst the City of Phoenix. Defendants moved for summary\njudgment on all claims based on qualified immunity.\n The district court granted in part and denied in part\nDefendants’ motion for summary judgment. The court\ngranted Defendants’ motion with respect to Plaintiff’s\nfederal law claims of false arrest, deprivation of familial and\nsocietal companionship, and Monell liability against the City\nof Phoenix, as well as Plaintiff’s state law claim of negligent\ntraining and supervision. The district court also granted\nDefendants’ motion concerning the officers’ use of force\nprior to and including the initial application of the RIPP\nrestraint.1 The court denied Defendants’ motion with respect\nto the officers’ use of force after the application of the RIPP\nrestraint, including Officer Mosley’s kneeling on Lopez and\nthe officers’ placement and transportation of Lopez in a\npolice vehicle while he was subject to the RIPP restraint.\nThe district court also denied summary judgment as to\nPlaintiff’s related failure to intervene claim, Plaintiff’s\nwrongful death claim based on vicarious liability, and\nPlaintiff’s request for punitive damages against individual\ndefendants.\n Defendants timely appealed the district court’s denial of\nqualified immunity in part. The only questions before this\nCourt are whether Defendants are entitled to qualified\nimmunity based upon (1) Officers Mosley, Stevens,\nJimenez, and Lingenfelter placing Lopez into a police\nvehicle in his face-down, handcuffed, and RIPP-restrained\n\n\n1\n Under our interlocutory review, these determinations are not before this\nCourt.\n\n10 GONZALEZ V. CITY OF PHOENIX\n\n\nposition, and (2) Officers Cozad and Lopez transporting\nLopez to a parking lot while Lopez remained in that position.\n II.\n We must “decide de novo whether the facts, considered\nin the light most favorable to the plaintiff, show that\nqualified immunity is warranted” when we review a district\ncourt’s denial of summary judgment based on qualified\nimmunity. Sanderlin v. Dwyer, 116 F.4th 905, 910 (9th Cir.\n2024) (quoting Hopson v. Alexander, 71 F.4th 692, 697 (9th\nCir. 2023)). Because this is an interlocutory appeal, our\njurisdiction is “limited to resolving a defendant’s purely\nlegal contention that his or her conduct did not violate the\nConstitution and, in any event, did not violate clearly\nestablished law.” Id. (quoting Est. of Anderson v. Marsh,\n985 F.3d 726, 731 (9th Cir. 2021) (cleaned up). The scope\nof our review is “circumscribed.” Foster v. City of Indio,\n908 F.3d 1204, 1210 (9th Cir. 2018) (per curiam) (quoting\nGeorge v. Morris, 736 F.3d 829, 834 (9th Cir. 2013)). “[W]e\nmust consider only ‘whether the defendant would be entitled\nto qualified immunity as a matter of law, assuming all factual\ndisputes are resolved, and all reasonable inferences are\ndrawn, in plaintiff’s favor.’” Rosenbaum v. City of San Jose,\n107 F. 4th 919, 924 (9th Cir. 2024) (quoting Karl v. City of\nMountlake Terrace, 678 F.3d 1062, 1068 (9th Cir. 2012)).\nWe have jurisdiction under 28 U.S.C. § 1291 and the\ncollateral-order doctrine, see Plumhoff v. Rickard, 572 U.S.\n765, 772 (2014). We affirm the district court’s order.\n The qualified immunity doctrine “shields an official\nfrom damages in a civil suit unless the plaintiff can make the\nshowing that the official’s actions violated a constitutional\nright, and that the right was ‘clearly established’ at the time\nof the violative conduct.” Nelson v. City of Davis, 685 F.3d\n\n GONZALEZ V. CITY OF PHOENIX 11\n\n\n867, 875 (9th Cir. 2012) (quoting Harlow v. Fitzgerald, 457\nU.S. 800, 818 (1982)). Plaintiff must satisfy both prongs of\nthis test to overcome an officer’s qualified immunity\ndefense. Shafer v. Cnty. of Santa Barbara, 868 F.3d 1110,\n1115 (9th Cir. 2017) (citing Pearson v. Callahan, 555 U.S.\n223, 236 (2009)). Because this interlocutory appeal arises\nfrom Defendants’ motion for summary judgment, we\ninterpret the facts in the light most favorable to Plaintiff and\ndraw all rational inferences in Plaintiff’s favor, see Wall v.\nCnty. of Orange, 364 F.3d 1107, 1109 (9th Cir. 2004), unless\nPlaintiff’s allegations are “blatantly contradicted” by the\nofficers’ bodycam video, Scott v. Harris, 550 U.S. 372, 380\n(2007).\n A.\n Defendants contend that their placement and\ntransportation of Lopez in a RIPP restraint did not violate the\nFourth Amendment for two reasons. First, they argue that\nthese actions do not fall within the purview of the Fourth\nAmendment’s prohibition against excessive force because\nthe officers did not use “force” when they placed Lopez into\na vehicle and transported him. Second, even if such actions\nconstituted force, Defendants maintain that such force was\nobjectively reasonable because of Lopez’s “active”\nresistance, the officers’ “express purpose of protecting\n[Lopez’s] safety and getting him medical care,” and the\nabsence of “evidence that Lopez was showing clear distress\nwhen he was placed in the vehicle.”\n We begin with Defendants’ contention that the officers\ndid not use force when they placed and transported Lopez\nbecause the officers never applied additional pressure on\nLopez. Defendants’ argument misapprehends the nature of\nthe relevant Fourth Amendment inquiry. The text of the\n\n12 GONZALEZ V. CITY OF PHOENIX\n\n\nAmendment expressly describes unreasonable “seizures” as\nthe protected right: “The right of the people to be secure in\ntheir persons, houses, papers, and effects, against\nunreasonable searches and seizures, shall not be violated.”\nU.S. CONST. amend. IV. As the Supreme Court explains,\n“[a] person is seized by the police and thus entitled to\nchallenge the government’s action under the Fourth\nAmendment when the officer, by means of physical force or\nshow of authority, terminates or restrains his freedom of\nmovement through means intentionally applied.” Brendlin\nv. California, 551 U.S. 249, 254 (2007) (quotations and\ncitations omitted).\n So, the threshold inquiry under the Fourth Amendment\nis whether the officers intentionally seized Lopez by\nterminating or restraining his freedom of movement––not\nwhether the officers applied an additional quantum of\npressure in seizing him so as to constitute force. The\nofficers’ actions in placing and transporting Lopez in a RIPP\nrestraint are plainly encompassed within the meaning of the\nFourth Amendment because such physical restraint\nterminated Lopez’s ability to move freely through means\nintentionally applied. Once RIPP-restrained, the record\nestablishes that Lopez did not, and could not, freely move.\nWe conclude that the officers’ actions constitute a seizure\nfor Fourth Amendment purposes. 2\n\n\n2\n Even if Defendants were correct that an additional quantum of force\nfrom the officers is required, the record establishes that the officers did\nplace additional pressure on Lopez. Officers Mosley, Stevens and\nJimenez lifted Lopez by his arms and legs and carried him to the patrol\nvehicle. Officer Lingenfelter pulled Lopez’s body across the seat and\npushed Lopez’s shoulders inward to shut the car door. And the officers\npositioned Lopez atop a hard plastic hump that divided two car seats,\n\n GONZALEZ V. CITY OF PHOENIX 13\n\n\n Defendants’ second contention—that the use of force or\nrestraint against Lopez was objectively reasonable as a\nmatter of law—is equally unavailing. Plaintiff has\nestablished a genuine dispute of material fact as to whether\nthe officers’ use of force violated the Constitution. An\nofficer’s use of force violates the Fourth Amendment if it is\nobjectively unreasonable. Graham v. Connor, 490 U.S. 386,\n397 (1989). To make that determination, we balance the\n“extent of the intrusion on the individual’s Fourth\nAmendment rights against the government's interests.”\nEspinosa v. City & Cnty. of San Francisco, 598 F.3d 528,\n537 (9th Cir. 2010) (citations omitted).\n That analysis proceeds in three parts. First, we consider\nthe “severity of the intrusion” on the individual’s interests\n“by evaluating the type and amount of force inflicted.” Id.\n(quotations and citations omitted). Second, we “evaluate the\ngovernment’s interests by assessing (1) the severity of the\ncrime; (2) whether the suspect posed an immediate threat to\nthe officers’ or public’s safety; and (3) whether the suspect\nwas resisting arrest or attempting to escape.” Id. (citing\nGraham, 490 U.S. at 396–97) (citation omitted). Third, we\n“balance the gravity of the intrusion on the individual against\nthe government’s need for that intrusion” to determine\n“whether the force used was greater than is reasonable.” Id.\n(quotations and citations omitted). Because this balancing is\n“inherently fact specific,” we have cautioned that “the\ndetermination whether the force used to effect an arrest was\nreasonable under the Fourth Amendment should only be\ntaken from the jury in rare cases.” Green v. City and Ctny.\nof San Francisco, 751 F.3d 1039, 1049 (9th Cir. 2014)\n\n\nwhich exacerbated the pressure that Lopez’s body weight exerted against\nitself.\n\n14 GONZALEZ V. CITY OF PHOENIX\n\n\n(quotations and citations omitted). We conclude that a\nreasonable jury could determine that the officers’ use of a\nRIPP restraint under the circumstances of this appeal\nviolated the Fourth Amendment.\n i.\n First, a reasonable jury could conclude that the officers’\nuse of force was significant, if not lethal. We have defined\nlethal force as force “that creates a substantial risk of death\nor serious bodily injury.” Bryan v. MacPherson, 630 F.3d\n805, 825 n.6 (9th Cir. 2010) (citing Smith v. City of Hemet,\n394 F.3d 689, 705–07 (9th Cir. 2005) (en banc)).\n Plaintiff’s evidence shows that restraining a subject in a\nhogtied position raises that subject’s risk of death through\npositional asphyxia. Positional asphyxia occurs when an\nindividual’s body position restricts their ability to breathe,\ncausing a lack of oxygen. According to Plaintiff’s\ncardiologist expert, Dr. Daniel Wohlgelernter, positional\nasphyxia “is a well-known trigger of PEA [pulseless\nelectrical activity] and cardiac arrest.” Plaintiff’s police\nexpert Scott DeFoe explained that “[p]roperly trained\nofficers learn how improper restraining techniques” can lead\nto this “life-threatening condition.”\n Hogtying is one such improper form of restraint that can\ncause positional asphyxia. Phoenix PD training materials\nwarn that “[h]og-tying is almost always listed as a\ncontributing factor [of sudden custody deaths] due to the\npositional restraint position’s ability to aid in inducing\npositional asphyxia.” That is because “[i]f [a] suspect is\nplaced in a hog-tied position, the neural center may not be\ncapable [of] fulfill[ing] oxygen demands.” For that reason,\nthe department training materials instruct officers: “Never\nhog-tie anyone,” and “DO NOT SHORTEN THE STRAP\n\n GONZALEZ V. CITY OF PHOENIX 15\n\n\nOR WRAP AROUND THE SUSPECT’S ANKLES”\nbecause doing so bends the subject into a hogtied position.\nIndeed, as Officer Jimenez acknowledged at his deposition,\nofficers are “trained that you should not feed the RIPP\nrestraint all the way through [the handcuffs] and then attach\nthe hook to the ankles.” Instead, Officer Jimenez testified,\n“what we’re trained to do” is to attach the RIPP restraint’s\nbrass hook “close to the handcuffs.”\n Positioning a subject face down––even when properly\nrestrained––also increases their risk of positional asphyxia.\nFace-down positioning can, according to DeFoe, cause a\nsubject’s breathing to become labored. Accordingly,\nPhoenix PD training materials warn officers to “NEVER\nALLOW [a RIPP-restrained subject] TO REMAIN ON\nTHEIR CHEST OR STOMACH,” and directs officers to\n“immediately” roll the subject into an upright seated\nposition. Phoenix PD operations orders likewise require\nofficers to “minimize the face-down exposure,” and, when\ntransporting RIPP-restrained subjects, require officers to\ncontinually observe the subject and “pull [the vehicle] over”\nto “move” them to an upright position if they fall down.\n Other factors can exacerbate the risk of positional\nasphyxia. Phoenix PD officers are taught that drug\nintoxication heightens the likelihood of sudden custody\ndeath. Drug intoxication is a “major risk factor” because, as\nDeFoe explained, “respiratory drive is reduced” and\n“subjects may not realize they are suffocating.” Dr.\nWohlgelernter similarly noted that methamphetamine draws\nfrom the body’s oxygen supply, and creates a “state of\nagitation,” that increases the body’s oxygen demand.\n Physical struggle, especially in hot conditions, also\nincreases the subject’s risk of death. Like drug intoxication,\n\n16 GONZALEZ V. CITY OF PHOENIX\n\n\nphysical exertion draws on the body’s oxygen reserves.\nAnd, in hot conditions, significant physical exertion “can\ngenerate heat beyond the ability to cool,” which, according\nto Dr. Wohlgelernter, may cause a “loss of enzymatic control\n[that] affects the functioning of major organs . . . such as the\nheart and brain.” Consequently, exerted individuals “may\nbe more vulnerable to subsequent respiratory muscle\nfailure.”\n All of these factors together create a high risk of sudden\ndeath. Dr. Wohlgelernter explained that as drug intoxication\nand physical exertion drain the body’s oxygen reserves and\nheighten the body’s oxygen demands, “restraint in the prone\nposition” prevents the body from “increas[ing] [its]\nventilatory capacity to compensate for [these] increased\nmetabolic demands,” and this, in turn, results in “continued\ncarbon dioxide accumulation and development of lethal\nmetabolic acidosis.” Or, as the officers’ training materials\nput more bluntly: “Drugs and/or alcohol plus wrestling\nand/or arrest plus Hog-tie/restraint = Probable fatality =\nLAW SUIT [sic].”\n A reasonable jury thus could find that the officers’ use of\nphysical restraints against Lopez created a substantial risk of\ndeath or serious bodily injury. The officers placed and\ntransported Lopez face down atop a hard plastic hump with\nLopez’s RIPP restraint hook attached to Lopez’s ankles,\nwhich bent Lopez’s arms back and lifted his legs upward into\na hogtied position. Officer Jimenez admitted that, when he\n“affixed the brass RIPP restraint [hook] to Ramon’s ankles,”\nhe “departed from [his own] training.” “These actions,”\naccording to Dr. Wohlgelernter, “carried a high risk of\nrestricting, to a critical degree, [Lopez’s] ability to breathe.”\n\n GONZALEZ V. CITY OF PHOENIX 17\n\n\n The officers did so when, according to Plaintiff, they\nknew or should have known that Lopez faced a heightened\nrisk of death from other risk factors. Lopez had exerted\nhimself by running, struggled under the officers’ body\nweight against the hot asphalt, and, as the officers believed,\nwas under the influence of drugs. Indeed, Plaintiff’s forensic\npathologist concluded that “but for the prone restraint and\nprone positioning while Mr. Lopez was handcuffed and\nRIPP restrained, there is no evidence to support the\nconclusion that Ramon Timothy Lopez would have died\nwhen he did.” Dr. Wohlgelernter agreed that “the restraint\napplied to Timothy [Lopez] while he was prone and\nhandcuffed, in combination with the other draws on his\noxygen reserves (agitation, exertion, methamphetamine\nintoxication, hyperthermia, and pain/discomfort from\nforcible restraint), served as a highly probable trigger for the\ncardiopulmonary arrest that resulted in his death.”\n The record also establishes that the officers could see\nLopez’s risk of positional asphyxia manifest. True, a\nreasonable officer cannot be expected to foresee every\noutcome of his actions; reasonableness “must be judged\nfrom the perspective of a reasonable officer on the scene”\nand not from one with “the 20/20 vision of hindsight.”\nGraham, 490 U.S. at 396. Still, a jury could determine that\na reasonable officer on the scene would have noticed that the\nrisks of Lopez’s positional asphyxia had already begun to\nmaterialize by the time the officers lifted him into the patrol\nvehicle. Lopez grunted and gasped before falling silent, his\nskin turned an abnormal tone, and as multiple officers\nacknowledged, his body became limp. Lopez “obviously\nneeded medical attention,” as Officer Cozad later admitted.\n In short, Plaintiff has presented sufficient evidence\nestablishing that the officers’ use of force or restraint against\n\n18 GONZALEZ V. CITY OF PHOENIX\n\n\nLopez was significant, if not lethal, and that the intrusion on\nLopez’s individual interests was therefore severe.\n ii.\n Second, a reasonable jury could determine that the\ngovernment’s interest in placing Lopez in the vehicle and\ntransporting him in a hogtied and prone position was\nminimal. To assess the government’s interest, we consider\n“the severity of the crime at issue, whether the suspect poses\nan immediate threat to the safety of the officers or others,\nand whether he is actively resisting arrest or attempting to\nevade arrest by flight.” Graham, 490 U.S. at 396.\n The crime at issue was not severe. The officers\nresponded to a 911 call reporting that a man was behaving\noddly, not violently. Lopez committed civil traffic\nviolations when he crossed the street without using a\ncrosswalk and ran into traffic. See Ariz. Rev. Stat. §§ 28-\n793, 28-121(B).\n A reasonable jury could determine that, by the time the\nofficers placed and transported a RIPP-restrained Lopez in\nthe police vehicle, Lopez no longer resisted and posed no\nthreat to the officers. At the time Officers Mosley, Stevens,\nJimenez, and Lingenfelter lifted Lopez and carried him to\nthe vehicle, they had observed that Lopez was fully bound,\nunarmed, and helpless. When Officers Cozad and Lopez\ntransported Lopez, he remained face down, handcuffed, and\nRIPP-restrained in the back seat of the police vehicle. As\nthe district court concluded, even if Lopez once resisted the\nofficers’ attempts to subdue him, the body camera video\n\n GONZALEZ V. CITY OF PHOENIX 19\n\n\nfootage “reflects that Lopez was no longer resisting after he\nwas RIPP restrained.” 3\n Viewing the evidence in the light most favorable to\nPlaintiff, a reasonable jury could conclude that the\ngovernment’s interest in placing and transporting Lopez in a\nhogtied and prone position after his surrender was minimal.\nSee Bryan, 630 F.3d at 828–29 (“[T]he commission of a\nmisdemeanor offense . . . militates against finding the force\nused to effect an arrest reasonable where the suspect was also\nnonviolent and posed no threat to the safety of the officers\nor others.” (quotations and citations omitted)).\n iii.\n Third, a reasonable jury could conclude that the force\nused by the officers was greater than is reasonable under the\ncircumstances. Defendants contend that the officers’ force\nwas justified because they needed to get Lopez to safety, out\nof the sun, and away from the busy street, but had limited\noptions because of Lopez’s continuing resistance. That\nresistance, Defendants argue, occurred when Lopez “kicked\nOfficer Mosley while the Officers were placing him into the\nvehicle and did not cooperate.” We reject this argument for\ntwo reasons.\n\n\n3\n The district court determined that the officers’ initial detention of\nLopez was objectively reasonable because Lopez intentionally threw an\niced tea beverage at Officer Stevens while running away, constituting an\nassault under Arizona law, and because Lopez ignored Officer Stevens’s\ncommand to stop running. The court also determined that the officers’\ninitial application of a RIPP restraint was objectively reasonable because\nLopez struggled against the officers’ attempts to restrain him, failed to\nroll over when commanded, and exhibited “extraordinary strength.”\nPlaintiff reserves her right to appeal those determinations following a\nfinal judgment in the matter.\n\n20 GONZALEZ V. CITY OF PHOENIX\n\n\n First, we do not agree that the officers’ subjective\nmotivations to “get Lopez to safety” justified their decision\nto place and transport Lopez in a hogtied and face-down\nposition. The Supreme Court has cautioned that an\n“officer’s good intentions” will not “make an objectively\nunreasonable use of force constitutional.” See Graham, 490\nU.S. at 397. Similarly, “a simple statement by an officer that\nhe fears for . . . the safety of others” or the “desire to resolve\nquickly a potentially dangerous situation is not the type of\ngovernmental interest that, standing alone, justifies the use\nof force that may cause serious injury.” Deorle v.\nRutherford, 272 F.3d 1272, 1281 (2001).\n Second, Defendants overlook that in this interlocutory\nposture, “[a]ny decision by the district court that the parties’\nevidence presents genuine issues of material fact is\ncategorically unreviewable on interlocutory appeal.”\nGeorge, 736 F.3d at 834 (quotations and citation omitted).\nThe district court determined that a genuine dispute of\nmaterial fact exists as to whether Lopez resisted the officers\nor tried to kick Officer Mosley as he was carried into the\npolice vehicle. That dispute is not resolvable in this appeal.\nEven if it were, the video evidence shows no “continuing\nresistance” by Lopez after he was RIPP-restrained.\n Plaintiff has established a genuine dispute of material\nfact as to whether the officers’ application of near-lethal\nforce and the government’s minimal interest in using that\nforce was reasonable under the circumstances. As the\ndistrict court underscored, “there were other, less dangerous,\nways of transporting Lopez that were readily available to the\nOfficers.” The officers’ own police department training\nmaterials and operational orders offer a few: the officers\ncould have, for example, modified Lopez’s RIPP restraint to\nits intended position by attaching the restraint’s hook to\n\n GONZALEZ V. CITY OF PHOENIX 21\n\n\nLopez’s handcuffs instead of his ankle strap; or, the officers\ncould have positioned Lopez upright in the back seat of the\nvehicle. They could have, as the district court observed,\n“simply carr[ied] him to one of the many businesses\nsurrounding the road” to get him out of the sun and away\nfrom traffic. Defendants do not offer a compelling\njustification for their decision to instead place and transport\nLopez in a hogtied and face-down position when Lopez\nshowed signs of medical distress.\n Under Graham, a reasonable jury could determine that\nthe officers violated Lopez’s constitutional rights by placing\nand transporting him in a hogtied and prone position after he\nhad surrendered and no longer posed a danger to the officers\nor a risk of flight.\n B.\n Under the second prong of the qualified immunity\nanalysis, we examine whether the officers’ constitutional\nviolation was clearly established. Police officers are entitled\nto qualified immunity unless they “violate clearly\nestablished statutory or constitutional rights of which a\nreasonable person would have known.” Harlow, 457 U.S. at\n818. While the clearly established requisite does not require\n“a case directly on point, existing precedent must place the\nlawfulness of the particular [action] beyond debate.” Dist.\nof Columbia v. Wesby, 583 U.S. 48, 64 (2018) (quotations\nand citation omitted). Indeed, “even in novel factual\ncircumstances,” the Supreme Court has recognized,\n“[o]fficials can still be on notice that their conduct violates\nestablished law.” Hope v. Pelzer, 536 U.S. 730, 741 (2002).\nSee also Drummond, 343 F.3d at 1060‒61 (“[I]t is not\nnecessary that the alleged acts have been previously held\nunconstitutional, as long as the unlawfulness was apparent\n\n22 GONZALEZ V. CITY OF PHOENIX\n\n\nin light of existing law.”). The “salient question” is “whether\nthe state of the law [at the time of the alleged misconduct]\ngave respondents fair warning that their alleged treatment of\n[the subject] was unconstitutional.” Hope, 536 U.S. at 741.\nWe hold that existing precedent gave the officers fair\nwarning that their decision to place and transport Lopez in a\nprone and RIPP-restrained position after his surrender,\nsubjecting him to a significant risk of death or serious bodily\ninjury from positional asphyxia, was unconstitutional.\n It is a well-worn principle in our law that when “there is\nno need for force, any force used is constitutionally\nunreasonable.” Lolli v. Cnty. of Orange, 351 F.3d 410, 417\n(9th Cir. 2003) (citations omitted); see also Blankenhorn v.\nCity of Orange, 485 F.3d 463, 481 (9th Cir. 2007) (“[F]orce\nis only justified when there is a need for force”); Green, 751\nF.3d at 1049 (“Where [government] interests do not support\na need for force, any force used is constitutionally\nunreasonable.” (quotations and citation omitted)).\n This principle carries added significance when the force\napplied by officers is lethal. See Harris v. Roderick, 126\nF.3d 1189, 1204 (9th Cir. 1997) (stating that officers may\nnot “kill suspects who do not pose an immediate threat to\ntheir safety or to the safety of others.”). Indeed, force that\n“create[s] a substantial risk of serious injury or death,” we\nhave explained, “generally can’t be used on a prone suspect\nwho exhibits no resistance, carries no weapon, is surrounded\nby sufficient officers to restrain him and is not suspected of\na violent crime.” Jones v. Las Vegas Metro. Police Dep’t,\n873 F.3d 1123, 1131–32 (9th Cir. 2017).\n We have applied this principle to hold that an officers’\ncontinued pressure against a prone, handcuffed, hobble-\nrestrained subject was excessive. In Drummond, we\n\n GONZALEZ V. CITY OF PHOENIX 23\n\n\nconcluded that officers used excessive force against an\nunarmed, mentally ill man when they placed him face down\nwith his wrists handcuffed behind his back, tied a hobble\nrestraint around his ankles, and continued to press their body\nweight against his upper body, even as he told the officers\nthat he could not breathe––all of which caused compression\nasphyxia that left the arrestee in a vegetative state. 343 F.3d\nat 1054‒55.\n In Drummond, we held that “[i]n a situation in which an\narrestee surrenders and is rendered helpless, any reasonable\nofficer would know that a continued use of force or a refusal\nwithout cause to alleviate its harmful effects constitutes\nexcessive force.” Id. at 1062 (quoting LaLonde, 204 F.3d at\n961) (cleaned up). We reasoned that, because the arrestee’s\n“hands were cuffed behind his back and he was offering no\nresistance,” “[a]ny reasonable officer should have known”\nthat the officers’ “continuing” pressure on the arrestee’s\nneck and torso despite his “repeated cries for air” constituted\nexcessive force. Id. at 1061.\n Drummond clearly established that Defendants’ actions\nhere violated the Fourth Amendment. As in Drummond,\nLopez was rendered helpless when he lay prone with his\nwrists handcuffed behind his back and a hobble restraint\naround his ankles, though here the two restraints hooked\ntogether to bind Lopez even more tightly. And, the officers\ncontinued to use force and refused without cause to alleviate\nits harmful effects. Officers Mosley, Stevens, Jimenez, and\nLingenfelter placed Lopez in a face-down, hogtied position\nwithout modifying his restraints or repositioning him. And\nonce Officers Cozad and Lopez took custody of Lopez, they\ndid not modify his restraints or reposition him during the\ntransport. The harmful effects of that force were readily\nobservable to all the officers present. The officers noticed\n\n24 GONZALEZ V. CITY OF PHOENIX\n\n\nthat Lopez, who had once gasped and grunted, had gone\nsilent, multiple officers described Lopez’s body as limp, and\nas Officer Cozad later admitted, Lopez “obviously needed\nmedical attention.”\n Although the officers in Drummond pressed their body\nweight on an arrestee by kneeling on the arrestee’s upper\nbody, the state of the law nevertheless gave Defendants a\nclear warning that their conduct was unconstitutional. Id. at\n1063. Here, the officers’ decision to maintain Lopez in an\nimproperly-restrained position created similar pressure on\nhis upper body. Placing Lopez’s body in a hogtied and prone\nposition across a hard plastic hump caused Lopez’s own\nbody weight to exert significant force upon his chest,\ninducing positional asphyxia. In both cases, the officers\ncontinued to exert pressure––whether from kneeling or\nmaintaining tightly-connected restraints––on a prone and\nhelpless subject bound by handcuffs and hobble restraints.\n Other precedent supports our analysis. We have\nrepeatedly held that force can be unreasonable when undue\npressure caused by physical restraints is not alleviated. See\nWall, 364 F.3d at 1112 (officers used excessive force “in\nmaking the arrest and continuing the restraint by handcuffs\nthat hurt and damaged [arrestee’s] wrist.” (emphasis\nadded)); LaLonde, 204 F.3d at 960 (allegations that officers\n“tightly handcuffed [arrestee] and refused to loosen the cuffs\nwhen he complained” raised a factual dispute on plaintiff’s\nexcessive force claim (emphasis added)); Meredith v. Erath,\n342 F.3d 1057, 1063 (9th Cir. 2003) (“[T]o place and keep\n[arrestee] in handcuffs that were so tight that they caused her\nunnecessary pain violated her Fourth Amendment right to be\nfree from an unreasonable seizure.” (emphasis added));\nPalmer v. Sanderson, 9 F.3d 1433, 1436 (9th Cir. 1993)\n(officers used excessive force because defendant “has\n\n GONZALEZ V. CITY OF PHOENIX 25\n\n\npresented no evidence that would justify handcuffing\n[arrestee] so tightly that he suffered pain and bruises, or to\njustify his refusal to loosen the handcuffs after [arrestee]\ncomplained” (emphasis added)).\n Defendants’ efforts to avoid these precedents are\nunpersuasive. Defendants say that, unlike the injurious\nrestraint cases, Lopez did not ask the officers to remove his\nRIPP restraints and handcuffs––yet the evidence establishes\nthat the officers could see that Lopez was in medical distress.\nWe likewise reject Defendants’ contention that “[a] case\nregarding overly tight handcuffing cannot clearly establish\nwhether it would violate Lopez’s constitutional rights to\nplace him in a vehicle in a prone position with a RIPP\nrestraint for a one-minute ride across the street.” Our\ncaselaw on the constitutional limits of less intrusive\nrestraints, like handcuffing, may still provide notice to\nofficers employing far more intrusive restraints, like RIPP\nrestraints, when their unreasonable application can result in\ndeath rather than just a painful encounter. See Hope, 536\nU.S. at 741 (“[O]fficials can still be on notice that their\nconduct violates established law even in novel factual\ncircumstances.”). In any event, our precedent on physical\nrestraints merely reinforces the fair warning that flows from\nDrummond’s holding: an officer’s continued application of\nforce––whether from an officer’s body or the physical\nrestraints that press the subject’s body upon itself––against\na prone subject who appears distressed and has been\nrendered helpless, is unconstitutional.\n Tellingly, the officers here were actually warned that\ntheir actions unreasonably endangered Lopez. We have\nexplained that training materials may be “relevant” as to\n“whether reasonable officers would have been on notice that\nthe force employed was objectively unreasonable.”\n\n26 GONZALEZ V. CITY OF PHOENIX\n\n\nDrummond, 343 F.3d at 1062. As in Drummond, “the\nofficers received training from their own police department\nexplaining specifically that . . . asphyxia can result . . . [in]\ncausing death.” Id. at 1061–62. Defendants violated their\nown training, which instructed them to “never hogtie\nanyone,” and ordered them to roll any RIPP-restrained\nindividual into a seated position instead of leaving them face\ndown. Officer Jimenez admitted that he “departed from [his\nown] training.” Even if the officers’ own training did not\nexpressly prohibit the officers’ actions, our precedent made\nclear to them that the Constitution did.\n We reject Defendants’ contention that the district court\nimproperly conflated its analyses of the force used by the\nofficers who placed Lopez in the police vehicle with the\nofficers who transported Lopez. The district court analyzed\nthe objective reasonableness of the discrete acts committed\nby both sets of officers and applied caselaw clearly\nestablishing that those actions violated the Fourth\nAmendment. The district court’s approach was proper\nbecause we have routinely examined the circumstances in\nwhich restraints were applied and maintained alongside the\nfailure to alleviate the harmful effects of those restraints.\nSee, e.g., LaLonde, 204 F.3d at 960; Wall, 364 F.3d at 1112;\nMeredith, 342 F.3d at 1063.", "author": "SANCHEZ, Circuit Judge:"}, {"type": "dissent", "author": "Our", "text": "Our dissenting colleague commits a similar analytical\nerror. While our colleague agrees that qualified immunity\nshould be denied for the officers involved in placing Lopez\nin the police vehicle face down in a RIPP-restrained and\nhogtied position, he concludes that the two officers who\ntransported Lopez a short distance away should be entitled\nto qualified immunity. Our colleague reasons that “no case\nclearly establishes that merely driving a car a short distance\nwith an improperly restrained suspect violates the\n\n GONZALEZ V. CITY OF PHOENIX 27\n\n\nConstitution.” But the actions of Officer Lopez and Officer\nCozad cannot be segmented away so neatly. Rather, use of\nforce analysis requires consideration of the “totality of the\ncircumstances.” Graham, 490 U.S. at 396.\n The totality of the circumstances shows that, like the\nofficers who placed Lopez into the police vehicle, Officer\nCozad and Officer Lopez refused to alleviate the harmful\neffects of unreasonable force on a helpless subject––here,\nthe force of an improperly-applied RIPP restraint that\nexerted significant pressure on Lopez’s chest and\nunnecessarily created a substantial risk of death. Like the\nother officers, Officer Cozad and Officer Lopez were present\nwhen Lopez was lifted into their police vehicle in a RIPP-\nrestrained position and moved face down over a plastic\nhump in the back seat of the car. Like the other officers,\nOfficer Cozad and Officer Lopez could see that Lopez was\nhelpless, limp, and in medical distress. And, like the other\nofficers, Officer Cozad and Officer Lopez were trained\nnever to shorten the RIPP restraint straps or to leave a subject\nlying face down in a RIPP-restrained position. Instead,\nOfficer Cozad and Officer Lopez were trained, when\ntransporting a RIPP-restrained subject, to continually\nobserve them and immediately pull the vehicle over if the\nsubject falls from an upright position. Yet the evidence at\nthis stage shows that neither officer modified Lopez’s\npositioning or sat him upright.\n As the Supreme Court observes, our clearly established\nlaw analysis must proceed based on Plaintiff’s allegations\nrather than Defendants’ framing of the evidence. The\nSupreme Court has emphasized “the importance of drawing\ninferences in favor of the nonmovant” when deciding “the\nclearly-established prong” of the qualified immunity\nanalysis. Tolan v. Cotton, 572 U.S. 650, 657 (2014). Courts\n\n28 GONZALEZ V. CITY OF PHOENIX\n\n\nmust “define the ‘clearly established’ right at issue on the\nbasis of the ‘specific context of the case[,]’” and therefore,\n“must take care not to define a case’s ‘context’ in a manner\nthat imports genuinely disputed factual propositions.” Id.\n(citations omitted).\n So, here, the qualified immunity analysis does not boil\ndown to a case about “driving a suspect” a short distance\naway, as Defendants and our dissenting colleague frame the\nissue. Rather, we define the context of our clearly\nestablished law inquiry based on Plaintiff’s allegations and\nevidence, which establish that Officer Cozad and Officer\nLopez took custody of Lopez and assumed full responsibility\nfor his safety, and that Officer Cozad and Officer Lopez\ntransported Lopez in a face-down, hogtied position without\nmodifying his restraints or repositioning him. The officers’\ncontinued application of force and failure to alleviate the\nharmful effects of the RIPP restraint against a prone subject\nwho was in medical distress and had been rendered helpless,\nis unconstitutional. Drummond, 343 F.3d at 1062.\n ***\n Under the circumstances of this interlocutory appeal, any\nreasonable officer would have known that the officers’\nactions violated Lopez’s clearly established constitutional\nrights. We conclude that the district court properly denied\nDefendants qualified immunity for Officers Mosley,\nStevens, Jimenez, and Lingenfelter’s placement of Lopez\ninto the vehicle in a hogtied and prone position, and Officers\nCozad and Lopez’s transportation of Lopez under the same\nrestrained conditions.\n AFFIRMED; REMANDED for further proceedings.\n\n GONZALEZ V. CITY OF PHOENIX 29"}, {"author": "BUMATAY, Circuit Judge, concurring", "type": "concurrence", "text": "BUMATAY, Circuit Judge, concurring in the judgment in\npart and dissenting in part:\n\n No doubt, this case presents tragic facts. Three Phoenix\npolice officers responded to a 911 call about a man acting\nerratically. When they arrived on the scene, they found\nRamon Timothy Lopez—paranoid and spooked. At some\npoint, Lopez took off running. After a chase and a struggle,\nthe officers tackled him in the middle of a road. But Lopez\nstill didn’t comply. After more officers showed up, they\nwere finally able to subdue Lopez. They used what’s called\na “RIPP restraint”—a device that loops a person’s ankles to\nhis handcuffs. The result is something close to hogtying the\nperson. While effective in stopping a resisting suspect, it is\nwidely known to be dangerous. If a person is left prone on\nhis stomach while in a RIPP restraint, he may asphyxiate and\ndie.\n That’s what one side says happened. After officers\nplaced Lopez in the RIPP restraint, they carried him to the\nbackseat of a police Tahoe. There, they placed him face-\ndown over a hard plastic console with his hands cuffed and\nhis legs curled up. The officers didn’t sit him up as required\nto prevent asphyxiation. Minutes later, Lopez was found\nunresponsive. Officers did their best to revive him, and the\nfire department quickly gave him medical attention.\nUnfortunately, their efforts failed, and Lopez was\npronounced dead at a local hospital. His cause of death:\n“[c]ardiac arrest in the setting of methamphetamine\nintoxication, dilated cardiomyopathy and physical restraint.”\n Though the initial use of the RIPP restraint was\nreasonable, I agree with the majority that the officers who\nleft Lopez prone on his stomach while effectively hogtied in\nthe back of the Tahoe are not entitled to qualified immunity.\n\n30 GONZALEZ V. CITY OF PHOENIX\n\n\nSimply, leaving a subdued, non-dangerous suspect in a\nposition with a high risk of asphyxiation would violate\nclearly established law. See Drummond ex rel. Drummond\nv. City of Anaheim, 343 F.3d 1052, 1062 (9th Cir. 2003)\n(observing that “kneeling on the back and neck of a\ncompliant detainee, and pressing the weight of two officers’\nbodies on him even after he complained that he was choking\nand in need of air violates clearly established law”).\n Two other officers, however, had a different role in the\nevents. Officers Alonso Lopez and Bobbi Cozad didn’t\nsubdue Lopez, place the RIPP restraint on him, or carry him\ninto the Tahoe. They didn’t leave Lopez prone on his\nstomach in the backseat. While other officers handled\nLopez, all Officers Lopez and Cozad did was drive the\nTahoe to a nearby Walgreens’ parking lot—which took no\nmore than two minutes. In fact, they didn’t interact with\nLopez until they found him unconscious and administered\nfirst aid.\n I would have granted qualified immunity to Officers\nLopez and Cozad. No case clearly establishes that merely\ndriving a car a short distance with an improperly restrained\nsuspect violates the Constitution. This action—transporting\na suspect—is very different from the actions of officers who\nactively continued to use what allegedly amounted to deadly\nforce on Lopez.\n I respectfully dissent from the denial of qualified\nimmunity for Officers Lopez and Cozad.\n I.\n We do not deny qualified immunity in gross. Qualified\nimmunity analysis must be “conducted separately for each\nsearch or seizure that is alleged to be unconstitutional.”\n\n GONZALEZ V. CITY OF PHOENIX 31\n\n\nCnty. of Los Angeles, Cal. v. Mendez, 581 U.S. 420, 428\n(2017). And liability “may not be imposed based on a ‘team\neffort theory that would . . . lump all the defendants\ntogether.” Peck v. Montoya, 51 F.4th 877, 890 (9th Cir.\n2022) (simplified). That’s because “[l]iability requires at\nleast enough individual involvement from each defendant to\nput him on notice that his conduct might reasonably lead to\na constitutional violation.” Id. at 891. So qualified\nimmunity analysis demands that “each individual’s liability”\nbe based “on his own conduct.” Id. at 890. Only then can\nwe determine “whether the violative nature of particular\nconduct is clearly established.” Id. at 891 (simplified). So\nthe clearly established prong of qualified immunity must be\nanalyzed officer by officer.\n The Ninth Circuit has struggled to apply clearly\nestablished law properly in the past. See Kisela v. Hughes,\n584 U.S. 100, 104 (2018) (“This Court has repeatedly told\ncourts—and the Ninth Circuit in particular—not to define\nclearly established law at a high level of generality.”)\n(simplified). For a right to be clearly established, it must be\n“sufficiently clear that every reasonable officer would have\nunderstood that what he is doing violates that right.”\nMullenix v. Luna, 577 U.S. 7, 11 (2015) (simplified).\n And specificity “is especially important in the Fourth\nAmendment context” considering how “difficult” it can be\n“for an officer to determine how . . . excessive force[] will\napply to the factual situation [he] confronts.” Id. at 12\n(simplified). So “[c]ases cast at a high level of generality are\nunlikely to establish rights with the requisite specificity.”\nWaid v. Cnty. Of Lyon, 87 F.4th 383, 388 (9th Cir. 2023)\n(simplified). Rather, “police officers are entitled to qualified\nimmunity unless existing precedent squarely governs the\nspecific facts at issue.” Kisela, 584 U.S. at 104.\n\n32 GONZALEZ V. CITY OF PHOENIX\n\n\n The actions of the individual officers here were distinct\nand should have been analyzed differently. No clearly\nestablished law shows that the two transporting officers\nviolated Lopez’s constitutional rights. They are thus entitled\nto qualified immunity.\n A.\n Lopez’s estate tries to sidestep the “clearly established”\ninquiry completely by proclaiming the transporting officers’\nalleged constitutional violation was “obvious.” But that’s\nwrong. The “obviousness principle” serves as “an exception\nto the specific-case requirement” for qualified immunity.\nSharp v. County of Orange, 871 F.3d 901, 912 (9th Cir.\n2017). But it’s an exceedingly high bar to meet. We require\nFourth Amendment violations to be “beyond debate” to be\nconsidered obvious. Waid, 87 F.4th at 388 (simplified).\nThat’s because obviousness is “especially problematic in the\nFourth-Amendment context,” which poses so many factually\ndistinct situations that “a categorical statement that conduct\nobviously violates the Fourth Amendment ‘is particularly\nhard to make[.]’” Id. (simplified). So barring “exceedingly\nrare circumstances with extreme facts,” id. at 389,\nobviousness can’t be used to dispense with the “clearly\nestablished law” prong.\n We’ve recently recounted the cases showing the\n“extreme facts” needed to establish obviousness:\n\n • Seizing persons for over five hours\n because they witnessed a crime with no\n justification;\n • Arresting a sixth-grade student even\n though the child was compliant,\n\n GONZALEZ V. CITY OF PHOENIX 33\n\n\n committed no wrongdoing, and posed no\n threat to anyone; and\n • Shooting and killing a suspect holding a\n baseball bat even though he was not\n facing the officer and was not threatening\n anyone.\n\nId. at 389 (simplified).\n Here, Officers Lopez and Cozad didn’t participate in\nsubduing Lopez, they didn’t take part in shackling him with\nthe RIPP restraint, and they didn’t place him in the backseat\nof the Tahoe. All they did was transport Lopez a short\ndistance after other officers took control of him. While they\nmight have been negligent in not checking on Lopez, they\ndidn’t actively harm him. Briefly transporting a suspect\nimproperly restrained by other officers is not the rare case\nexcusing the “specific-case requirement” for qualified\nimmunity. Sharp, 871 F.3d at 912.\n B.\n With obviousness dispensed with, Lopez’s estate must\npoint to a case showing that driving a vehicle with an\nimproperly restrained suspect clearly violates a\nconstitutional right. Instead, all we get are cases standing for\nthe broadest proposition that “a continued use of [force] or a\nrefusal without cause to alleviate its harmful effects\nconstitutes excessive force.” Drummond, 343 F.3d at 1062;\nsee also Wall v. Cnty. of Orange, 364 F.3d 1107, 1112 (9th\nCir. 2004); LaLonde v. Cnty. of Riverside, 204 F.3d 947, 960\n(9th Cir. 2000); Meredith v. Erath, 342 F.3d 1057, 1063 (9th\nCir. 2003); Palmer v. Sanderson, 9 F.3d 1433, 1436 (9th Cir.\n1993).\n\n34 GONZALEZ V. CITY OF PHOENIX\n\n\n None of these cases comes close to putting Officers\nLopez and Cozad on notice that their actions clearly violated\nthe Fourth Amendment. In Drummond, officers allegedly\ncrushed the plaintiff with their body weight to the point of\nsuffocating him—even though he wasn’t resisting and he\ntold officers they were choking him. 343 F.3d at 1061–62.\nIn Wall, the officers cuffed a plaintiff so brutally the cuffs\n“hurt and damaged [his] wrist”—refusing to loosen them\nafter he begged the officers for help several times. 364 F.3d\nat 1110, 1112. Similarly, in LaLonde, officers left a plaintiff\ntightly handcuffed with pepper spray burning his face for\nover 20 minutes even after he stopped resisting. 204 F.3d at\n951–52. In Meredith, the officer grabbed a plaintiff by her\narms, threw her to the ground, and twisted her arms to cuff\nher—later not loosening the cuffs for thirty minutes, even\nafter she complained of their tightness several times. 342\nF.3d at 1060. And Palmer involved an “abusive application\nof handcuffs” following a seizure that left Palmer with “pain\nand bruises.” 9 F.3d at 1436. In all these cases, officers\nplaced the plaintiffs in restraints and then refused to loosen\nthem after the plaintiffs complained.\n These cases are qualitatively different than driving a\nsuspect subdued and restrained by other officers a short\ndistance. Transportation doesn’t involve the same active\nparticipation in restraining as in Drummond, Wall, LaLonde,\nMeredith, and Palmer. Rather, driving Lopez while he lay\nprone in the backseat gave the officers only a brief and\nindirect connection to restraining Lopez. And Officers\nLopez and Cozad never refused to alleviate restraints as in\n\n GONZALEZ V. CITY OF PHOENIX 35\n\n\nthose cases. 1 So they didn’t actively and continuously\nparticipate in restraining Lopez. Without excusing Officers\nLopez and Cozad’s failure to ensure that Lopez was properly\ntransported, these cases do not show a violation of clearly\nestablished law. Applying these cases here would set clearly\nestablished law at too high a level of generality.\n The majority’s choice to conflate the actions of Officers\nLopez and Cozad with the other officers’ is wrong on both\nthe law and the facts.\n First, the facts. It’s uncontested that Officers Lopez and\nCozad didn’t apply the RIPP restraint or place Lopez in the\ncar face-down. In fact, they didn’t touch him at all until they\ntook him out of the car, at which point they did everything\nthey could to help him. They also never spoke to him during\nthe entire interaction. Thus, it’s misleading to suggest they\naffirmatively ignored Lopez’s pleas and refused to alleviate\nthe restraints—other officers were responsible for him at all\ntimes except for the short two-minute drive. The totality of\nthe circumstances shows that they were backup or secondary\nofficers to the actions of other officers. So there’s nothing\nin Officers Lopez and Cozad’s actions that violated Lopez’s\nrights. Instead, the majority tries to pin a constitutional\nviolation on them for merely being in the vicinity of the other\nofficers’ actions.\n Second, the law. None of the cases cited by the majority\ninvolved two sets of officers—one set of restraining officers\nand another set of transporting officers. Neither do these\ncases ascribe liability simply for being near an alleged\n\n\n1\n Of course, this is not to fault Lopez, who potentially couldn’t speak up\nfor himself at this point. This is only to point out that Officers Lopez\nand Cozad didn’t ignore pleas for help as in the other cases.\n\n36 GONZALEZ V. CITY OF PHOENIX\n\n\nconstitutional violation committed by other officers.\nInstead, the line of cases the majority relies on uniformly\ninvolves an officer’s actions in “making the arrest and\ncontinuing the restraint.” Wall, 364 F.3d at 1112 (emphasis\nadded). None show that the mere presence of nearby\nofficers also constitutes a violation. The majority needed to\nfind case law specific to Officers Lopez and Cozad’s\nconduct. It hasn’t.\n To the extent the majority claims that we must accept a\nplaintiff’s framing of the qualified immunity question, that’s\nincorrect. While it’s true that we must “draw[] inferences in\nfavor of the nonmovant,” Tolan v. Cotton, 572 U.S. 650, 657\n(9th Cir. 2014), that doesn’t mean that we must ignore the\nundisputed facts of the case. It just means that we resolve\nall disputed facts in a plaintiff’s favor. Doing so neither\ncommands—nor permits—construing two analytically\ndistinct acts as one single act. So nothing compels us to\naccept any particular framing of a case. And no framing of\nthe facts can get around that no clearly established law shows\nthat Officers Lopez and Cozad committed a constitutional\nviolation.\n II.\n The facts here are gut-wrenching. But our justice system\nrequires—and the Supreme Court has repeatedly\ninstructed—that we analyze separate acts distinctly and not\nset clearly established law at too high a level of generality\nwhen we conduct the qualified immunity analysis. I\nrespectfully dissent.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11237655/", "author_raw": "BUMATAY, Circuit Judge, concurring"}]}	JOHNNIE B RAWLINSON	PATRICK J BUMATAY	GABRIEL P SANCHEZ	1		{}	3	1	1	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10771070/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,771,071	Alivecor, Inc. v. Apple Inc.	2026-01-08	24-1392	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Marsha S. Berzon, Michelle T. Friedland, and Salvador Mendoza, Jr., Circuit Judges.", "parties": "", "opinions": [{"author": "FRIEDLAND, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\nALIVECOR, INC., No. 24-1392\n D.C. No.\n Plaintiff - Appellant,\n 4:21-cv-03958-\n JSW\n v.\n\nAPPLE INC., OPINION\n\n Defendant - Appellee.\n\n Appeal from the United States District Court\n for the Northern District of California\n Jeffrey S. White, District Judge, Presiding\n\n Argued and Submitted May 21, 2025\n San Francisco, California\n\n Filed January 8, 2026\n\n Before: Marsha S. Berzon, Michelle T. Friedland, and\n Salvador Mendoza, Jr., Circuit Judges.\n\n Opinion by Judge Friedland\n\f2 ALIVECOR, INC. V. APPLE INC.\n\n\n SUMMARY \n\n\n Antitrust\n\n The panel affirmed, on different grounds, the district\ncourt’s summary judgment in favor of Apple Inc. in medical-\ntechnology company AliveCor’s antitrust action alleging\nmonopolization in violation of Section 2 of the Sherman\nAct.\n AliveCor created a software feature called SmartRhythm\nto detect episodes of atrial fibrillation using the Apple\nWatch. SmartRhythm relied on heart rate data that Apple\ncalculated with an algorithm while the Watch was in the\n“Workout Mode” setting. The year after AliveCor created\nSmartRhythm, Apple adopted a Watch operating system\nupdate that used a different algorithm to calculate heart rate\ndata. Apple shared the new algorithm’s data with third-party\napp developers and stopped sharing the old algorithm’s data,\nmeaning that SmartRhythm could no longer confidently\ndetect atrial fibrillation. Apple also added its own software\nfeature to detect irregular heart rhythms. This feature, called\nIrregular Rhythm Notification, used a third algorithm to\ncalculate heart rate data. Apple also shared that data with\napp developers.\n AliveCor claimed that Apple violated Section 2 by\ndenying third-party app developers access to the original\nheart rate algorithm’s data. AliveCor alleged that Apple did\nso for the purpose of disabling software, like SmartRhythm,\nthat would have competed with Irregular Rhythm\n\n\n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\f ALIVECOR, INC. V. APPLE INC. 3\n\n\nNotification, thereby monopolizing the market for heart\nrhythm analysis apps on the Apple Watch.\n The district court granted summary judgment to Apple\non the ground that its changes to the Watch operating system\nimproved Workout Mode and therefore constituted a per se\nlawful product improvement under Allied Orthopedic\nAppliances, Inc. v. Tyco Health Care Grp. LP, 592 F.3d 991\n(9th Cir. 2010).\n The panel affirmed on the ground that, even assuming\nAliveCor was correct that Apple’s refusal to continue\nsharing the old heart rate algorithm’s data with third-party\napp developers was distinct from Apple’s improvement to\nWorkout Mode, that conduct was properly classified as a\nrefusal to deal. AliveCor would therefore need to establish\nan exception to the “general rule that there is no antitrust\nduty to deal” to succeed under Section 2. AliveCor did not\ndo so both because it did not argue that the exception laid\nout in Aspen Skiing Co. v. Aspen Highlands Skiing Corp.,\n472 U.S. 585 (1985) applied, and because it did not show\nthat, under the essential-facilities doctrine, Apple had a duty\nto share data from its original heart rate algorithm with its\ncompetitors. AliveCor’s Section 2 claims therefore failed as\na matter of law.\n\f4 ALIVECOR, INC. V. APPLE INC.\n\n\n COUNSEL\n\nAdam Wolfson (argued), Quinn Emanuel Urquhart &\nSullivan LLP, Los Angeles, California; David M. Cooper,\nQuinn Emanuel Urquhart & Sullivan LLP, New York, New\nYork; Sean S. Pak, Quinn Emanuel Urquhart & Sullivan\nLLP, San Francisco, California; Andrew B. Holmes, Holmes\nAthey Cowan & Mermelstein LLP, Los Angeles, California;\nPhilip C. Ducker and Valarie C. Williams, Alston & Bird\nLLP, San Francisco, California; for Plaintiff-Appellant.\nThomas G. Hungar (argued) and Cynthia Richman, Gibson\nDunn & Crutcher LLP, Washington, D.C.; Matt A. Getz,\nPatrick J. Fuster, Nicola T. Hanna, Daniel G. Swanson,\nJason C. Lo, and Jennifer J. Rho, Gibson Dunn & Crutcher\nLLP, Los Angeles, California; Julian W. Kleinbrodt and\nCaeli A. Higney, Gibson Dunn & Crutcher LLP, San\nFrancisco, California; for Defendant-Appellee.\nDavid W. Kesselman, Amy T. Brantly, and Wesley A.\nSweger, Kesselman Brantly Stockinger LLP, Manhattan\nBeach, California, for Amici Curiae Physicians.\nMark W. Brennan, J. Ryan Thompson, and Thomas B.\nVeitch, Hogan Lovells US LLP, Washington, D.C.; Kerry\nM. Sheehan, Chamber of Progress, McLean, Virginia;\nChristopher J. Marchese and Paul D. Taske, NetChoice,\nWashington, D.C.; Stephanie A. Joyce and Krisztian\nKatona, Computer & Communications Industry Association,\nWashington, D.C.; for Amici Curiae Chamber of Progress,\nComputer & Communications Industry Association, and\nNetChoice.\nGregory J. Dubinsky, Holwell Shuster & Goldberg LLP,\nNew York, New York, for Amici Curiae NightWare Inc.,\nBreakpoint Studio LLC, and Empirical Health Inc.\n\f ALIVECOR, INC. V. APPLE INC. 5\n\n\n OPINION\n\nFRIEDLAND, Circuit Judge:\n\n AliveCor is a medical-technology company that in 2017\ncreated a software feature called SmartRhythm to detect\nepisodes of atrial fibrillation (“Afib”) using the Apple\nWatch. SmartRhythm relied on heart rate data that Apple\ncalculated with an algorithm while the Watch was in the\n“Workout Mode” setting. The following year, Apple\nadopted a Watch operating system (“watchOS”) update that\nimproved the exercise-monitoring capabilities of Workout\nMode by using a different algorithm to calculate heart rate\ndata. Apple shared that new algorithm’s data with third-\nparty app developers and stopped sharing the old algorithm’s\ndata. SmartRhythm could no longer confidently detect Afib\nusing that new data, so AliveCor discontinued\nSmartRhythm. Around the same time it updated its\nwatchOS, Apple also added its own software feature to\ndetect irregular heart rhythms. Apple’s feature, called\nIrregular Rhythm Notification (“IRN”), uses yet a third\nalgorithm to calculate heart rate data. Apple also shares that\ndata with app developers.\n AliveCor filed an antitrust suit, claiming that Apple had\nviolated Section 2 of the Sherman Act, 15 U.S.C. § 2, by\ndenying third-party app developers access to the original\nheart rate algorithm’s data. AliveCor alleges that Apple did\nso for the purpose of disabling software, like SmartRhythm,\nthat would have competed with IRN, thereby monopolizing\nthe market for heart rhythm analysis apps on the Apple\nWatch.\n In a motion for summary judgment, Apple argued that its\nchanges to watchOS improved Workout Mode and therefore\n\f6 ALIVECOR, INC. V. APPLE INC.\n\n\nconstituted a per se lawful product improvement under\nAllied Orthopedic Appliances Inc. v. Tyco Health Care Grp.\nLP, 592 F.3d 991 (9th Cir. 2010). The district court agreed\nand granted summary judgment to Apple. We affirm,\nalthough on different grounds than those offered by the\ndistrict court. Even assuming AliveCor is correct that\nApple’s refusal to continue sharing the old heart rate\nalgorithm’s data with third-party app developers is distinct\nfrom Apple’s improvement to Workout Mode, that conduct\nis properly classified as a refusal to deal. AliveCor would\ntherefore need to establish an exception to the “general rule\nthat there is no antitrust duty to deal” to succeed under\nSection 2. Fed. Trade Comm’n v. Qualcomm Inc., 969 F.3d\n974, 993 (9th Cir. 2020). Because AliveCor has not done so\nhere, AliveCor’s Section 2 claims fail as a matter of law.\n I.\n A.\n In 2015, Apple created the Apple Watch, which contains\na sensor that collects measurements used to calculate the\nwearer’s heart rate. Apple stores the heart rate data\ncalculated by the Apple Watch in a database called\nHealthKit. Through licensing agreements with Apple, third-\nparty app developers can access HealthKit via application\nprogram interfaces (“APIs”).\n The Watch reports heart rate data in two relevant ways.\nFirst, when a user is sufficiently still, the Watch records\ntachograms, which are sequences of a user’s heart beats.\nThird-party app developers can access those recordings\nthrough the Tachogram API, but they cannot prompt\nTachogram API to record at more frequent intervals.\n\f ALIVECOR, INC. V. APPLE INC. 7\n\n\n Second, while in Workout Mode, the Watch takes sensor\nmeasurements and uses an algorithm to calculate the user’s\naverage heart rate approximately every five seconds. In\nWorkout Mode, the Watch displays the user’s heart rate\nalong with various other metrics. Third-party app\ndevelopers can prompt the Watch to enter Workout Mode\nand can access Workout Mode’s heart rate readings through\nthe Workout Mode API.\n The original algorithm Apple developed for Workout\nMode was called the Heart Rate Path Optimizer (“HRPO”).\nHRPO calculated a heart rate based on the Watch user’s\nselection of a specific workout activity from a list of options\nin the Watch (such as “outdoor run” or “pool swim”).\nApple’s engineering team continued to adjust HRPO to\nimprove its accuracy and to try to optimize it for each\nseparate exercise activity supported by Workout Mode.\n B.\n One of the most common forms of irregular heart\nrhythms is Afib, which can cause dizziness and, in severe\ncases, stroke or sudden death. Afib is often undetected in its\nearly stages because it can be “paroxysmal,” meaning that\nAfib episodes can be infrequent and last less than a minute.\nBecause a patient may not experience an Afib episode during\nan examination, it can be difficult for a doctor to diagnose\nAfib in a traditional clinical setting.\n AliveCor offered technology to address this difficulty in\ndetecting paroxysmal Afib. In 2017, two years after Apple\ninvented the Apple Watch, AliveCor released KardiaBand, a\nreplacement band for the Watch that was FDA-approved to\ntake electrocardiograms (“ECGs”). ECGs are useful for\nidentifying potential anomalies in heart functions to\ndiagnose cardiovascular disorders. When using KardiaBand\n\f8 ALIVECOR, INC. V. APPLE INC.\n\n\nin conjunction with AliveCor’s app called Kardia, Apple\nWatch users could take ECGs at any time to share with their\ndoctors.\n AliveCor also used the Watch’s HRPO data from\nWorkout Mode to develop a software feature available on\nthe Kardia app called SmartRhythm. SmartRhythm could\ncontinuously monitor a user’s heart rate, detect when that\nuser was experiencing an Afib episode, and notify the user\nto take an ECG using KardiaBand. SmartRhythm’s\neffectiveness at detecting Afib episodes in people with a\nhistory of Afib was documented in a peer-reviewed medical\njournal.\n Another company, Cardiogram, was working to develop\na feature similar to SmartRhythm that would also detect Afib\nusing the Apple Watch’s heart rate data.\n C.\n In September 2018, Apple added a new algorithm called\nthe Heart Rate Neural Network (“HRNN”) to Workout\nMode. Like HRPO, HRNN calculated a user’s heart rate\napproximately every five seconds. But, unlike HRPO,\nHRNN could accurately calculate a user’s heart rate even\nwhen that user did not select a specific workout activity.\nApple’s testing showed that HRNN consistently produced\nmore accurate heart rate readings during exercise than\nHRPO.\n Apple also found that HRNN was sometimes slower to\nproduce an initial heart rate reading than HRPO. To mitigate\nthat delay, Apple continued to run HRPO in Workout Mode\neven after Apple added HRNN. If HRPO calculated a heart\nrate reading before HRNN, Workout Mode would report\nHRPO’s readings to users and HealthKit either until HRNN\n\f ALIVECOR, INC. V. APPLE INC. 9\n\n\nhad calculated its first reading or until the first minute of\nWorkout Mode had elapsed, whichever occurred earlier.\nThe rest of the time, Workout Mode reported only HRNN\ndata. For a few years after the introduction of HRNN, HRPO\nran simultaneously with HRNN for the full Workout Mode\nsession even though the Watch would report only at most the\nfirst minute of HRPO data. But after Apple made further\nimprovements to HRNN, Apple fully removed HRPO from\nthe Watch.\n After Apple launched HRNN, AliveCor observed that\nSmartRhythm could no longer accurately recognize Afib\nepisodes. AliveCor’s subsequent attempts to fix\nSmartRhythm failed, and AliveCor ultimately discontinued\nSmartRhythm and KardiaBand in 2019. AliveCor’s Kardia\napp remained available for use on Apple devices and could\nstill function with AliveCor’s other mobile ECG products to\nrecord and analyze ECGs for irregular heart rhythms. But,\nwithout SmartRhythm, Kardia could no longer continuously\nmonitor a user’s heart rhythms.\n Around the same time that Apple introduced HRNN,\nApple also released IRN, its own feature to detect irregular\nheart rhythms. IRN relies on the Watch’s intermittent\ntachogram recordings, rather than HRNN or HRPO. IRN\nwas cleared by the FDA to detect irregular heart rhythms\nsuggestive of Afib only in adults without a history of Afib,\nand Apple accordingly warns users that IRN is not intended\nfor people diagnosed with Afib.\n D.\n In 2021, AliveCor sued Apple in the United States\nDistrict Court for the Northern District of California,\nasserting claims for monopolization and attempted\nmonopolization in violation of Section 2 of the Sherman Act,\n\f10 ALIVECOR, INC. V. APPLE INC.\n\n\n15 U.S.C. § 2. 1 According to AliveCor, Apple removed\nthird-party app developers’ access to HRPO data to “break”\nsoftware that would compete with IRN, such as AliveCor’s\nSmartRhythm and Cardiogram’s similar nascent feature.\nAliveCor alleges that, as a result of Apple’s anticompetitive\nconduct, Apple gained 100 percent of the relevant market,\nwhich AliveCor defines as the watchOS heart rhythm\nanalysis app market. According to AliveCor, a watchOS\nheart rhythm analysis app is “watchOS software capable of\nperforming passive, background monitoring to detect the\npresence of a medically defined heart condition.” AliveCor\ncontends, and Apple does not presently contest, 2 that the\nmarket for such apps is an aftermarket distinct from the\nforemarket for smartwatches.\n AliveCor moved for partial summary judgment, seeking\na ruling that Allied Orthopedic Appliances Inc. v. Tyco\nHealth Care Grp. LP, 592 F.3d 991 (9th Cir. 2010), did not\npreclude its Section 2 claims and arguing that a jury could\nfind that Apple’s decision to remove third-party developers’\naccess to HRPO data violated Section 2 of the Sherman Act.\nIn support, AliveCor relied on internal Apple documents\n\n\n1\n AliveCor also asserted a claim under California Business & Professions\nCode section 17200. The district court granted summary judgment to\nApple on that claim, and AliveCor has not appealed that ruling. We\ntherefore do not address that claim here.\n2\n In ruling on Apple’s motion to dismiss, the district court concluded,\ndespite Apple’s arguments to the contrary, that AliveCor plausibly\nalleged a distinct single-brand “watchOS heart rate analysis app”\naftermarket. AliveCor, Inc. v. Apple Inc., 592 F. Supp. 3d 904, 916-17\n(N.D. Cal. 2022). Apple did not renew at summary judgment its\narguments challenging that market definition, nor has it done so on\nappeal. We therefore assume for purposes of our analysis that the\ndefinition is appropriate.\n\f ALIVECOR, INC. V. APPLE INC. 11\n\n\nsuggesting that Apple could benefit from exclusively\nowning both the Watch and the heart-monitoring software\nthat operates on the Watch because Apple could potentially\nsell that combination to future healthcare partners. AliveCor\nalso pointed to evidence of internal Apple discussions\nrecognizing that changes to HRPO could harm Apple’s\ncompetitors’ features.\n Apple cross-moved for summary judgment, arguing\nprimarily that replacing HRPO with HRNN was a per se\nlawful product improvement under Allied Orthopedic.\nApple also argued that, even if its conduct were not protected\nunder Allied Orthopedic, its conduct should be characterized\nas a refusal to deal, and that AliveCor could not satisfy the\ndemanding requirements to establish a refusal-to-deal claim.\n The district court agreed with Apple that replacing\nHRPO with HRNN was per se lawful conduct under Allied\nOrthopedic and therefore granted summary judgment in\nApple’s favor on AliveCor’s Section 2 claims, without\nreaching Apple’s other arguments. AliveCor timely\nappealed.\n II.\n We review de novo the district court’s decision on cross-\nmotions for summary judgment. JL Beverage Co., LLC v.\nJim Beam Brands Co., 828 F.3d 1098, 1104 (9th Cir. 2016).\nWe “may affirm the district court’s holding on any ground\nraised [in the district court] and fairly supported by the\nrecord.” Columbia Pictures Indus., Inc. v. Fung, 710 F.3d\n1020, 1030 (9th Cir. 2013) (quoting Proctor v. Vishay\nIntertechnology Inc., 584 F.3d 1208, 1226 (9th Cir. 2009)).\n“Summary judgment is proper when, viewing the evidence\nin the light most favorable to the non-moving party, ‘there is\nno genuine dispute as to any material fact and the movant is\n\f12 ALIVECOR, INC. V. APPLE INC.\n\n\nentitled to judgment as a matter of law.’” Brown v. Stored\nValue Cards, Inc., 953 F.3d 567, 575 (9th Cir. 2020)\n(quoting Fed. R. Civ. P. 56(a)).\n III.\n Section 2 of the Sherman Act “targets independent\nanticompetitive conduct,” Optronic Techs., Inc. v. Ningbo\nSunny Elec. Co., 20 F.4th 466, 481 (9th Cir. 2021) (quoting\nFed. Trade Comm’n v. Qualcomm Inc., 969 F.3d 974, 989-\n90 (9th Cir. 2020)), and “makes it illegal to ‘monopolize, or\nattempt to monopolize, . . . any part of the trade or\ncommerce,’” id. (quoting 15 U.S.C. § 2). “The mere\npossession of monopoly power” is not unlawful, however,\nbecause “[t]he opportunity to charge monopoly prices . . .\ninduces risk taking that produces innovation and economic\ngrowth.” Verizon Commc’ns Inc. v. Law Offs. of Curtis V.\nTrinko, LLP, 540 U.S. 398, 407 (2004).\n Accordingly, “[a] Section 2 monopolization claim ‘has\ntwo elements: (1) the possession of monopoly power in the\nrelevant market and (2) the willful acquisition or\nmaintenance of that power as distinguished from growth or\ndevelopment as a consequence of a superior product,\nbusiness acumen, or historic accident.’” Epic Games, Inc. v.\nApple, Inc., 67 F.4th 946, 998 (9th Cir. 2023) (emphasis\nadded) (quoting United States v. Grinnell Corp., 384 U.S.\n563, 570-71 (1966)). The second element requires that the\nplaintiff “show that the defendant acquired or maintained its\nmonopoly through ‘anticompetitive conduct.’” Id. (quoting\nTrinko, 540 U.S. at 407). An attempted monopolization\nclaim similarly requires proof that the defendant engaged in\nanticompetitive conduct. Cascade Health Sols. v.\nPeaceHealth, 515 F.3d 883, 893 (9th Cir. 2008).\n“Anticompetitive conduct consists of acts that ‘tend[ ] to\n\f ALIVECOR, INC. V. APPLE INC. 13\n\n\nimpair the opportunities of rivals’ and ‘do[ ] not further\ncompetition on the merits or do[ ] so in an unnecessarily\nrestrictive way.’” Dreamstime.com, LLC v. Google LLC, 54\nF.4th 1130, 1137 (9th Cir. 2022) (alterations in original)\n(quoting Cascade Health, 515 F.3d at 894).\n Apple does not dispute that it has monopoly power in the\nrelevant market for heart rhythm analysis apps on the Apple\nWatch. The only issue here is therefore whether a\nreasonable jury could find that Apple engaged in\nanticompetitive conduct. AliveCor theorizes that Apple\neliminated competition in the market for heart rhythm\nanalysis apps on the Apple Watch “by denying third parties\naccess to HRPO-generated data (even while Apple\ncontinued to use it), and then by removing HRPO from the\nApple Watch entirely.” Apple argues that AliveCor’s theory\nfails as a matter of law to establish anticompetitive conduct\nin violation of Section 2. We agree with Apple.\n A.\n As an initial matter, the parties dispute whether Apple’s\nconduct was per se lawful under Allied Orthopedic\nAppliances Inc. v. Tyco Health Care Grp. LP, 592 F.3d 991\n(9th Cir. 2010).\n In Allied Orthopedic, the defendant, Tyco, manufactured\npulse oximetry products, including both sensors and\nmonitors. 592 F.3d at 994. Tyco had a monopoly in the\npulse oximetry sensor market and “an installed base of\nmonitors greatly exceeding that of its competitors.” Id. at\n994, 998. Initially, Tyco’s patents prevented generic\nmanufacturers from producing sensors compatible with\nTyco’s monitors. Id. at 994. Anticipating that its\ncompetitors would produce such sensors once those patents\nexpired, Tyco designed a new patented pulse oximetry\n\f14 ALIVECOR, INC. V. APPLE INC.\n\n\nsystem called OxiMax. Id. OxiMax moved certain parts—\nsuch as the “digital memory chip” and “calibration\ncoefficients”—from the monitors into the sensors, enabling\nnew features for the sensors. Id. at 994-95. But because the\nold type of sensors did not contain the calibration\ncoefficients, those sensors, including their generic\nequivalents, could not be used with the new OxiMax\nmonitors. Id. at 994. Only the new patented OxiMax\nsensors, which contained those necessary parts, were\ncompatible with the OxiMax monitors. Id. After launching\nits OxiMax system, Tyco discontinued its old monitors. Id.\nat 995, 998. The plaintiffs argued that Tyco’s conduct—\ndesigning its new OxiMax monitors to be incompatible with\nthe old kind of sensors and discontinuing its old monitors—\nviolated Section 2 of the Sherman Act by unlawfully\nmaintaining Tyco’s monopoly in the sensor market. Id. at\n998.\n We held that Tyco was entitled to summary judgment.\nId. at 1002-03. First, we explained that “a design change that\nimproves a product by providing a new benefit to consumers\ndoes not violate Section 2 absent some associated\nanticompetitive conduct.” Id. at 998-99; see also id. at 999-\n1000 (“[P]roduct improvement by itself does not violate\nSection 2, even if it is performed by a monopolist and harms\ncompetitors as a result.”). We then held that Tyco’s OxiMax\nsystem was undisputedly a genuine product improvement\nbecause it facilitated the creation of sensors with new\nfeatures and reduced costs for consumers. Id. at 1000-02.\n We noted that “Tyco may still have violated Section 2 if\nany of its other conduct constitutes an anticompetitive abuse\nor leverage of monopoly power, or a predatory or\nexclusionary means of attempting to monopolize the\nrelevant market.” Id. at 1002 (emphasis added) (quotation\n\f ALIVECOR, INC. V. APPLE INC. 15\n\n\nmarks omitted). But we held that the plaintiffs failed to\nprovide any evidence of such conduct. Id. We rejected the\nplaintiffs’ argument that Tyco forced the adoption of its\nOxiMax system by making its new OxiMax monitors\nincompatible with old sensors, reasoning that the\nincompatibility was “the necessary consequence” of “the\nproduct improvement at issue,” rather than “some associated\nconduct by Tyco.” Id. In other words, we held that the\nincompatibility in that case was “caused” by, not separate\nfrom, the product improvement. Id.\n We also rejected the plaintiffs’ argument that Tyco\nviolated Section 2 by discontinuing its old monitors. Id. We\nimplicitly accepted the premise that Tyco’s discontinuation\nof its old monitors was separate conduct from Tyco’s\nproduct improvement. See id. But we held that the\ndiscontinuation did not force consumers to adopt its OxiMax\nsystem, because other manufacturers were still competing\nfor monitor sales and Tyco’s share of new monitor sales was\ndeclining. Id. Without evidence that “Tyco used its\nmonopoly power to coerce adoption of OxiMax,” we\nconcluded, “the only rational inference that can be drawn\nfrom some consumers’ adoption of OxiMax is that they\nregarded it to be a superior product.” Id. at 1002-03.\n Apple contends that Allied Orthopedic forecloses\nAliveCor’s Section 2 claims. Apple argues that AliveCor’s\ntheory implicates Apple’s improvement of Workout Mode,\nin which it switched the algorithm primarily responsible for\nreporting heart rate data from HRPO to HRNN. According\nto Apple, HRNN undisputedly provides a new benefit to\nconsumers by improving the performance of Workout\nMode, and because removing access to HRPO data was part\nof that improvement, there is no other “associated conduct”\nhere. AliveCor, on the other hand, argues that even if\n\f16 ALIVECOR, INC. V. APPLE INC.\n\n\nintroducing HRNN improved Workout Mode, removing\naccess to HRPO data was separate from the product\nimprovement because that removal was not necessary to the\nimprovement—Apple could have designed Workout Mode\nto allow third-party app developers to continue accessing\nHRPO data even after it added HRNN. AliveCor contends\nthat the removal of access to HRPO data therefore should be\nconsidered associated conduct that is not per se lawful under\nAllied Orthopedic.\n We need not decide whether Apple’s decision to stop\nsharing HRPO data with third-party app developers was\nseparate from its product improvement and thus should be\nevaluated as associated conduct under Allied Orthopedic.\nEven if it were associated conduct, to prevail under Section\n2 AliveCor would still need to prove that Apple’s\nwithholding of HRPO data was anticompetitive. See id. at\n998-99 (“[A] design change that improves a product by\nproviding a new benefit to consumers does not violate\nSection 2 absent some associated anticompetitive conduct.”\n(emphasis added)); Epic Games, 67 F.4th at 998 (“[T]he\nplaintiff must show that the defendant acquired or\nmaintained its monopoly through ‘anticompetitive\nconduct.’” (quoting Trinko, 540 U.S. at 407)). As we\nexplain next, the undisputed evidence shows as a matter of\nlaw that Apple’s refusal to share HRPO data was not\nanticompetitive.\n B.\n Determining whether a monopolist’s conduct is\nanticompetitive “‘can be difficult’ because ‘the means of\nillicit exclusion, like the means of legitimate competition,\nare myriad.’” Trinko, 540 U.S. at 414 (quoting United States\nv. Microsoft Corp., 253 F.3d 34, 58 (D.C. Cir. 2001) (en\n\f ALIVECOR, INC. V. APPLE INC. 17\n\n\nbanc) (per curiam)); see also Novell, Inc. v. Microsoft Corp.,\n731 F.3d 1064, 1072 (10th Cir. 2013) (“It’s been said that\nanticompetitive conduct comes in too many forms and\nshapes to permit a comprehensive taxonomy.”). To assist\nthat inquiry, courts have devised some specific categories for\n“various types of conduct that have the potential to harm\ncompetition.” Viamedia, Inc. v. Comcast Corp., 951 F.3d\n429, 452 (7th Cir. 2020). “In cases where the alleged\nconduct falls within such well-defined categories,” courts\nevaluate whether that conduct is anticompetitive using the\napplicable framework for that category. Duke Energy\nCarolinas, LLC v. NTE Carolinas II, LLC, 111 F.4th 337,\n354 (4th Cir. 2024), petition for cert. docketed, No. 24-917\n(U.S. Feb. 25, 2025); see also Pac. Bell Tel. Co. v. linkLine\nCommc’ns, Inc., 555 U.S. 438, 457 (2009) (explaining that,\nwhere the plaintiffs did not state a refusal-to-deal claim or a\npredatory pricing claim under the applicable frameworks for\nthose kinds of claims, the plaintiffs could not “alchemize”\ntheir claims “into a new form of antitrust liability”); N.M.\nOncology & Hematology Consultants, Ltd. v. Presbyterian\nHealthcare Servs., 994 F.3d 1166, 1173 (10th Cir. 2021)\n(“[C]ourts have been able to adapt the general inquiry of\nwhat is anticompetitive conduct into particular\ncircumstances, [which] has allowed the creation of specific\nrules for common forms of alleged misconduct.”).\n One of the categories of allegedly anticompetitive\nconduct for which courts have developed specific rules is a\nrefusal to deal with competitors. See Trinko, 540 U.S. at\n408; Duke Energy, 111 F.4th at 354. AliveCor’s central\ntheory—that Apple “sought to break” competing technology\nby “denying third parties access to HRPO-generated data”—\nfalls within that category.\n\f18 ALIVECOR, INC. V. APPLE INC.\n\n\n Although there are limited exceptions, “as a general\nmatter, the Sherman Act ‘does not restrict the long\nrecognized right of [a] trader or manufacturer engaged in an\nentirely private business[] freely to exercise his own\nindependent discretion as to parties with whom he will\ndeal.’” Trinko, 540 U.S. at 408 (first alteration in original)\n(quoting United States v. Colgate & Co., 250 U.S. 300, 307\n(1919)). The Supreme Court in Trinko explained three\nprimary justifications for that general rule. First, compelling\nfirms “to share the source of their advantage is in some\ntension with the underlying purpose of antitrust law, since it\nmay lessen the incentive for the monopolist, the rival, or both\nto invest in those economically beneficial facilities.” Id. at\n407-08. Second, “[e]nforced sharing also requires antitrust\ncourts to act as central planners, identifying the proper price,\nquantity, and other terms of dealing—a role for which they\nare ill suited.” Id. at 408. Third, “compelling negotiation\nbetween competitors may facilitate the supreme evil of\nantitrust: collusion.” Id. For those reasons, “the Supreme\nCourt has exercised considerable caution in recognizing\nexceptions” to the general principle that firms have no duty\nto deal with competitors. Aerotec Int’l, Inc. v. Honeywell\nInt’l, Inc., 836 F.3d 1171, 1183 (9th Cir. 2016).\n AliveCor, at bottom, seeks a ruling that Apple was\nobligated to provide its HRPO data to its competitors, both\nbefore and after it stopped generating HRPO data. Such a\nruling would implicate the same concerns regarding\nincentives to innovate and judicial competency that the\nSupreme Court articulated in Trinko in explaining why the\nantitrust laws generally impose no duty to deal with\ncompetitors. AliveCor therefore needs to establish an\nexception from that general rule to succeed on its Section 2\nclaims. See Qualcomm, 969 F.3d at 995-97. It cannot do so.\n\f ALIVECOR, INC. V. APPLE INC. 19\n\n\n 1.\n AliveCor resists the notion that its claims should be\nanalyzed as a refusal to deal, contending that its theory is\nmore analogous to the plaintiffs’ Section 2 claim in Allied\nOrthopedic. Because we did not characterize the plaintiffs’\nclaim in Allied Orthopedic as a refusal to deal, AliveCor\nargues, we should not do so here either. We disagree.\n To begin, AliveCor’s argument rests on an overreading\nof Allied Orthopedic. There, analyzing the only allegedly\nanticompetitive conduct that was separate from the product\nimprovement, we reiterated the principle that “[a]\nmonopolist’s discontinuation of its old technology may\nviolate Section 2 if it effectively forces consumers to adopt\nits new technology.” Allied Orthopedic, 592 F.3d at 1002.\nBut we held that the plaintiffs had “provided no evidence\nthat” the defendant, Tyco, “used its monopoly power to force\nconsumers” to adopt its new technology. Id. We therefore\nhad no occasion to determine which category of\nanticompetitive conduct, if any, would have best fit the\nclaim.\n Even if the allegedly anticompetitive conduct in Allied\nOrthopedic would have been analyzed as a type of conduct\nother than a refusal to deal, material factual differences\nbetween the relevant products in this case and those in Allied\nOrthopedic place this case firmly within the refusal-to-deal\nframework. As explained above, Allied Orthopedic\ninvolved two separate pulse oximetry products: monitors\nand sensors. Id. at 994. The plaintiffs alleged that Tyco took\nsteps to unlawfully maintain its monopoly in the sensor\nmarket by discontinuing the old line of monitors that were\ncompatible with generic sensors. Id. at 998. AliveCor\nargues that its claim is analogous because “Apple’s\n\f20 ALIVECOR, INC. V. APPLE INC.\n\n\ndiscontinuation of HRPO effectively forced consumers to\nadopt” Apple’s heart rhythm analysis feature, IRN. But in\nAllied Orthopedic, Tyco was selling monitors to its\ncustomers—hospitals and other healthcare providers—and\nthen discontinued those monitors, to the disadvantage of\ncompeting sellers of sensors. Id. at 993-95. By contrast,\nhere, HRPO data was never a separate product that Apple\nsold to consumers. Rather, HRPO data was an input to\nWorkout Mode that Apple shared with third-party\ndevelopers of heart monitoring apps—in other words,\nApple’s competitors—so that it could be an input into those\ncompetitors’ products too. Thus, Apple’s “discontinuation\nof HRPO” is just another way of saying that Apple stopped\nproviding HRPO data to its competitors, which is essentially\na refusal to deal with competitors with regard to that data.\n In pressing its argument that the refusal-to-deal\nframework does not apply here, AliveCor contends that “the\nApple Watch is a platform designed to interoperate with\nthird-party apps” and that “changing a product” that\nfunctions as an “interoperable complement to other products\nin a way to kill competition is analyzed as its own form of\npotentially anticompetitive conduct.” But AliveCor\nsimultaneously maintains that it is not challenging the\nproduct change itself—the incorporation of HRNN data—\nbut instead the denial of access to HRPO data once the\nchange was made. So our focus has to be on the refusal to\ncontinue to provide HRPO data—which, as we have\nexplained, maps perfectly onto the refusal-to-deal doctrine.\n Moreover, AliveCor’s argument about lack of\ninteroperability makes little sense when AliveCor’s Kardia\napp, which had housed SmartRhythm, continues to be\navailable for use on Apple devices, including the Watch, for\nrecording and analyzing ECGs. Understood in context,\n\f ALIVECOR, INC. V. APPLE INC. 21\n\n\nAliveCor’s argument that Apple must provide access to\nHRPO data to restore SmartRhythm’s functionality is\nsquarely a refusal-to-deal theory. 3\n Indeed, because AliveCor’s competing feature\nfundamentally relies on Apple’s sharing of HRPO data,\nAliveCor’s claims raise the exact free-riding concerns\nanimating the general rule that there is no duty to deal with\ncompetitors. See Trinko, 540 U.S. at 407-08 (noting that\nrequiring “firms to share the source of their advantage . . .\nmay lessen the incentive for the monopolist, the rival, or both\nto invest in those economically beneficial facilities”); see\nalso Erik Hovenkamp, The Antitrust Duty to Deal in the Age\nof Big Tech, 131 Yale L.J. 1483, 1539-42 (2022) (explaining\nthat some refusals to deal can be economically similar to\ntying—another recognized category of anticompetitive\nconduct—but that the analogy fails when a competitor “is\neffectively asking the defendant to help it build a product\nthat it is unable to build on its own” because that “creates a\nfree-riding concern” not present in tying cases). AliveCor\ncannot avoid “the hard road of refusal to deal doctrine” by\nattempting to “recast” Apple’s conduct as something else\nwhen the substance of that conduct is a refusal to deal.\n\n\n3\n Not all claims involving product design changes will fall within the\nrefusal-to-deal category. Rather, as explained supra pp. 16-17, whether\nalleged conduct fits into a well-defined category of anticompetitive\nconduct, and what category that may be, is highly fact-dependent.\nAliveCor notes that the D.C. Circuit in United States v. Microsoft Corp.,\n253 F.3d 34, 65 (D.C. Cir. 2001) (en banc) (per curiam), and the Second\nCircuit in New York ex rel. Schneiderman v. Actavis PLC, 787 F.3d 638,\n652-54 (2d Cir. 2015), did not apply the refusal-to-deal framework to\nclaims involving product design changes. But AliveCor does not explain\nhow the facts of this case are analogous to the facts in those cases, so its\nreliance on those cases is unpersuasive.\n\f22 ALIVECOR, INC. V. APPLE INC.\n\n\nNovell, 731 F.3d at 1078. “Traditional refusal to deal\ndoctrine is not so easily evaded.” Id. at 1079.\n 2.\n Determining that AliveCor’s Section 2 claims challenge\nApple’s refusal to deal does not end our inquiry. “Under\ncertain circumstances, a refusal to cooperate with rivals can\nconstitute anticompetitive conduct and violate § 2.” Trinko,\n540 U.S. at 408.\n Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472\nU.S. 585 (1985), is “[t]he leading case for § 2 liability based\non refusal to cooperate with a rival.” Trinko, 540 U.S. at\n408. In Aspen Skiing, the defendant owned three out of the\nfour ski mountains in Aspen and had long cooperated with\nthe plaintiff, the owner of the fourth mountain, to offer a joint\nticket for skiers to use all four mountains. 472 U.S. at 588-\n90; Trinko, 540 U.S. at 408. After the plaintiff rejected the\ndefendant’s demands to increase its share of the joint ticket\nproceeds, the defendant stopped participating in the joint\nticket arrangement. Aspen Skiing, 472 U.S. at 592-93.\nWhen the plaintiff attempted to recreate a multi-mountain\nticket, the defendant refused to sell tickets for its mountains\nto the plaintiff even at retail price. Id. at 593-94. The\nSupreme Court upheld a jury verdict for the plaintiff on its\nmonopolization claim because the defendant’s “unilateral\ntermination of a voluntary (and thus presumably profitable)\ncourse of dealing suggested a willingness to forsake short-\nterm profits to achieve an anticompetitive end.” Trinko, 540\nU.S. at 409 (citing Aspen Skiing, 472 U.S. at 608, 610-11).\nMoreover, “the defendant’s unwillingness to renew the\nticket even if compensated at retail price revealed a\ndistinctly anticompetitive bent.” Id.\n\f ALIVECOR, INC. V. APPLE INC. 23\n\n\n Aspen Skiing’s “profit sacrifice” analysis, Novell, 731\nF.3d at 1079, is the “one, limited exception” that the\nSupreme Court itself has recognized to the “general rule that\nthere is no antitrust duty to deal,” Qualcomm, 969 F.3d at\n993. AliveCor does not argue that the Aspen Skiing\nexception applies here.\n Instead, AliveCor argues that a jury could find that\nApple’s refusal to deal violates Section 2 under the\n“essential facilities doctrine,” which is “a variation on a\nrefusal to deal claim” that “imposes liability where\ncompetitors are denied access to an input that is deemed\nessential, or critical, to competition.” 4 Aerotec, 836 F.3d at\n1184. The Supreme Court has never endorsed such a\ndoctrine. Trinko, 540 U.S. at 411 (rejecting an essential-\nfacilities argument without either “recogniz[ing]” or\n“repudiat[ing]” the doctrine). Our court has, however,\nrecognized the essential-facilities doctrine “as having a basis\nin § 2 of the Sherman Act” separate from the Aspen Skiing\nexception. Aerotec, 836 F.3d at 1185; see also MetroNet\nServs. Corp. v. Qwest Corp., 383 F.3d 1124, 1129-34\n(9th Cir. 2004) (analyzing the plaintiff’s “essential facilities\nclaim” separately from the plaintiff’s refusal-to-deal claim\nunder Aspen Skiing); Image Tech. Servs. v. Eastman Kodak\nCo., 125 F.3d 1195, 1209-11 (9th Cir. 1997) (explaining that\na defendant’s refusal to deal can violate Section 2 “under an\n‘essential facilities’ theory” or under Aspen Skiing).\n An “essential facility” is “a facility . . . to which access\nis necessary if one wishes to compete.” Fishman v. Est. of\n\n4\n The parties dispute whether AliveCor expressly disclaimed any\nessential-facilities theory earlier in this litigation. We need not resolve\nwhether AliveCor waived an essential-facilities theory because, for the\nreasons we explain, that theory fails on its merits.\n\f24 ALIVECOR, INC. V. APPLE INC.\n\n\nWirtz, 807 F.2d 520, 539 (7th Cir. 1986); see also Aerotec,\n836 F.3d at 1184 (“The essential facilities doctrine is one of\nthe circumstances in which plain English and antitrust lingo\nconverge.”). To establish a Section 2 violation under the\nessential-facilities doctrine, AliveCor must show: (1) that\nApple “is a monopolist in control of an essential facility”;\n(2) that AliveCor, as Apple’s competitor, “is unable\nreasonably or practically to duplicate the facility”; (3) that\nApple “has refused to provide [AliveCor] access to the\nfacility”; and (4) that “it is feasible for [Apple] to provide\nsuch access.” Aerotec, 836 F.3d at 1185. Moreover, to be\n“essential,” the facility must be “otherwise unavailable.”\nId.; see also MetroNet, 383 F.3d at 1129 (“[W]here access\nexists, the doctrine serves no purpose.” (quoting Trinko, 540\nU.S. at 411)). AliveCor argues that “HRPO (or equivalent)\ndata” is an essential facility that Section 2 requires Apple to\ncontinue to provide.\n No reasonable jury could find, however, that the data that\nAliveCor seeks is an essential facility. It is undisputed that\nApple’s own heart rhythm analysis feature, IRN, which\nAliveCor alleges competes in the market for heart rhythm\nanalysis apps on the Apple Watch, does not use HRPO data.\nIRN instead uses data produced by a different algorithm, and\nApple shares that data with third-party app developers\nthrough Tachogram API. Because IRN is competing in the\nmarket without using HRPO data, no reasonable jury could\nfind that the HRPO data is essential for competition. Even\nif access to some form of heart rate data is essential to\ncompete in the market, AliveCor’s claim would still fail\nbecause Apple provides app developers, including AliveCor,\nwith access to the same Tachogram API data that Apple’s\nIRN feature uses. See Areeda & Hovenkamp, Antitrust Law:\nAn Analysis of Antitrust Principles and Their Application\n\f ALIVECOR, INC. V. APPLE INC. 25\n\n\n¶ 771a (5th ed. Supp. 2025) (“[T]he essential facility claim\nis about the duty to deal of a monopolist who is able to\nsupply an input for itself in a fashion that is so superior to\nanything else available that others cannot succeed unless\nthey can access this firm’s input as well.” (emphasis added)).\n AliveCor contends that because access to Tachogram\nAPI enables competitors to offer only “a worse version” of\nthe monitoring provided by Apple’s IRN, Tachogram API is\ninsufficient to enable competition in the market, as\nevidenced by the fact that no competitors have developed an\nalternative to Apple’s IRN using Tachogram API. But\nAliveCor seeks something more than the essential-facilities\ndoctrine provides. That doctrine solely “imposes on the\nowner of a facility that cannot reasonably be duplicated and\nwhich is essential to competition in a given market a duty to\nmake that facility available to its competitors on a\nnondiscriminatory basis.” MetroNet, 383 F.3d at 1128\n(quoting Ferguson v. Greater Pocatello Chamber of Com.,\nInc., 848 F.2d 976, 983 (9th Cir.1988)). The essential-\nfacilities doctrine does not impose a duty on a monopolist to\nprovide whatever the competitor believes would allow it to\nprovide a superior product to the monopolist’s own and so\nto compete most effectively. See id. at 1130 (“The doctrine\ndoes not guarantee competitors access to the essential\nfacility in the most profitable manner.”); City of Anaheim v.\nS. Cal. Edison Co., 955 F.2d 1373, 1381 (9th Cir. 1992)\n(noting that an essential-facilities claim seeking to impose a\nduty to deal because of “the extent to which a competitor\nmight benefit if it had unlimited access to the monopolist’s\nfacility,” rather than because of “the harm that would result\nto competition from the monopolist’s refusal,” turns “the\nessential facility doctrine on its head” (quotation marks\nomitted)). HRPO data is plainly not essential to compete\n\f26 ALIVECOR, INC. V. APPLE INC.\n\n\nbecause Apple does not use it in its own competing feature.\nEven if a jury found that access to HRPO data was necessary\nfor AliveCor to create a better heart rhythm analysis app,\nthat alone would not establish a Section 2 violation under the\nessential-facilities doctrine.\n ***\n Because AliveCor has failed to establish a violation of\nthe essential-facilities doctrine and does not argue that Aspen\nSkiing applies, AliveCor has failed to show that Apple had a\nduty to share HRPO data with its competitors. AliveCor’s\nSection 2 claims accordingly fail as a matter of law even\nassuming that Apple’s conduct was not per se lawful under\nAllied Orthopedic. 5\n IV.\n For the foregoing reasons, we affirm the district court’s\norder granting summary judgment to Apple.\n\n\n\n\n5\n In light of our holding, we do not reach Apple’s other arguments for\naffirmance.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11237656/", "author_raw": "FRIEDLAND, Circuit Judge:"}]}	MARSHA S BERZON	MICHELLE T FRIEDLAND	SALVADOR MENDOZA JR	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10771071/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,771,120	United States v. Soto	2026-01-08	23-4072	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Marsha S. Berzon, Mark J. Bennett, and Jennifer Sung, Circuit Judges.", "parties": "", "opinions": [{"author": "analog[], 'the judge must require the jury to name the", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\nUNITED STATES OF No. 23-4072\nAMERICA,\n D.C. No.\n 5:22-cr-00021-\n Plaintiff - Appellee,\n RGK-1\n v. ORDER\n CERTIFYING\nANTHONY VALENTINO QUESTION TO\nSOTO, THE SUPREME\n COURT OF\n Defendant - Appellant. CALIFORNIA\n\n\nUNITED STATES OF No. 24-3903\nAMERICA,\n D.C. No.\n 2:23-cr-00391-\n Plaintiff - Appellee,\n JAK-1\n v.\n\nSTEPHEN REID,\n\n Defendant - Appellant.\n\n Filed January 8, 2026\n\n Before: Marsha S. Berzon, Mark J. Bennett, and Jennifer\n Sung, Circuit Judges.\n\f2 USA V. SOTO\n\n\n SUMMARY \n\n\n Criminal Law\n\n In two cases involving whether a defendant is subject to\nthe career-offender sentencing enhancement under U.S.S.G.\n§ 4B1.1 because of a prior conviction under California\nHealth & Safety Code § 11378, the panel certified to the\nSupreme Court of California the following question:\n\n When a defendant is charged with possession\n of a listed controlled substance under\n California Health & Safety Code § 11378,\n must the state prove, and must the jury\n unanimously agree, that the defendant\n possessed the actual listed controlled\n substance, and not an analog of that\n substance as defined under California Health\n & Safety Code § 11401? Or may the jury\n convict if it finds the state has proven the\n defendant possessed either the actual\n controlled substance or an analog of that\n substance, without unanimous agreement as\n to which?\n\n\n\n\n\n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\f USA V. SOTO 3\n\n\n ORDER\n\n The issue in this case is whether defendants Anthony\nSoto (“Soto”) and Stephen Reid (“Reid”; collectively,\n“Defendants”) are subject to the career-offender sentencing\nenhancement, U.S.S.G. § 4B1.1, because of their prior\nconvictions under California Health & Safety Code § 11378.\nThat issue turns on a question of California law.\nAccordingly, we respectfully ask the California Supreme\nCourt to answer the certified question of California law\npresented below:\n\n When a defendant is charged with possession\n of a listed controlled substance under\n California Health & Safety Code § 11378,\n must the state prove, and must the jury\n unanimously agree, that the defendant\n possessed the actual listed controlled\n substance, and not an analog of that\n substance as defined under California Health\n & Safety Code § 11401? Or may the jury\n convict if it finds the state has proven the\n defendant possessed either the actual\n controlled substance or an analog of that\n substance, without unanimous agreement as\n to which?\n\nIf the state must prove that a defendant possessed the actual\nlisted controlled substance charged, and not an analog of that\nsubstance, then Defendants would be subject to the career-\noffender enhancement due to their prior § 11378\nconvictions. But if a controlled substance analog is an\nalternative means of proving that a defendant possessed the\n\f4 USA V. SOTO\n\n\nlisted controlled substance charged, then Defendants would\nnot be subject to the career-offender enhancement.\n We have concluded that resolution of this question will\n“determine the outcome of a matter pending in [this] court”\nand that “[t]here is no controlling precedent.” Cal. R. Ct.\n8.548.\n I. FACTUAL AND PROCEDURAL\n BACKGROUND 1\n A. The Career-Offender Enhancement\n Defendants Soto and Reid both pled guilty to federal\ndrug trafficking charges. At sentencing, they were each\nsubjected to the career-offender enhancement, U.S.S.G.\n§ 4B1.1, based on their past convictions under California\nHealth & Safety Code § 11378 for distribution of\namphetamine or methamphetamine.\n The federal career-offender enhancement substantially\nincreases a defendant’s Sentencing Guidelines range. See\nU.S.S.G. § 4B1.1(b). A defendant qualifies for the career\noffender sentencing enhancement if:\n\n (1) the defendant was at least eighteen years\n old at the time the defendant committed the\n instant offense of conviction;\n (2) the instant offense of conviction is a\n felony that is either a crime of violence or a\n controlled substance offense; and\n\n\n\n\n1\n To the extent that this Certification Order reveals information under\nseal, we unseal such information for purposes of this Order only.\n\f USA V. SOTO 5\n\n\n (3) the defendant has at least two prior felony\n convictions of either a crime of violence or a\n controlled substance offense.\n\nU.S.S.G. § 4B1.1(a). U.S.S.G. § 4B1.2 defines “controlled\nsubstance offense” as:\n\n an offense under federal or state law,\n punishable by imprisonment for a term\n exceeding one year, that—\n (1) prohibits the manufacture, import, export,\n distribution, or dispensing of a controlled\n substance (or a counterfeit substance) or the\n possession of a controlled substance (or a\n counterfeit substance) with intent to\n manufacture, import, export, distribute, or\n dispense; or\n (2) is an offense described in 46 U.S.C.\n § 70503(a) or § 70506(b).\n\nU.S.S.G. § 4B1.2. We have held that the term “‘controlled\nsubstance’ in § 4B1.2(b) refers to a ‘controlled substance’ as\ndefined in the [federal Controlled Substances Act].” United\nStates v. Bautista, 989 F.3d 698, 702 (9th Cir. 2021).\n B. Anthony Soto\n Defendant Anthony Valentino Soto was charged in an\nindictment filed in January 2022 with a single count of\npossessing more than 50 grams of methamphetamine with\nintent to distribute, in violation of 21 U.S.C. §§ 841(a)(1),\n(b)(1)(A)(viii), which carries a 10-year mandatory minimum\nsentence. 21 U.S.C. § 841(b)(1)(A)(viii). In August 2023,\nhe pled guilty without a plea agreement.\n\f6 USA V. SOTO\n\n\n Soto had previously been convicted of three controlled\nsubstance felonies in 2017: (1) possession for sale of\nmethamphetamine, in violation of California Health &\nSafety Code § 11378 (“Section 11378” or “§ 11378”);\n(2) transportation for sale of methamphetamine, in violation\nof California Health & Safety Code § 11379(a); and (3)\npossession for sale of amphetamine, in violation of § 11378.\nThe two methamphetamine-related convictions stem from\nthe same conduct and were both charged in the same\ncharging instrument.\n In the Pre-Sentence Report (“PSR”), the United States\nProbation Office (“Probation”) determined Soto’s base\noffense level to be 32 based on drug weight, consistent with\nU.S.S.G. § 2D1.1(c) (150–500 grams of actual\nmethamphetamine). The PSR applied a 2-point reduction\nfor safety-valve eligibility under U.S.S.G. § 2D1.1(b)(18),\nfor an adjusted offense level of 30. Importantly, it then\napplied the career-offender enhancement under U.S.S.G.\n§ 4B1.1. Probation cited Soto’s two § 11378 convictions\nfrom 2017, one for possession of methamphetamine and the\nother for possession of amphetamine, as the two qualifying\npredicate offenses for the enhancement. The career-offender\nenhancement raised Soto’s offense level to 37, from which\nProbation subtracted 3 points for acceptance of\nresponsibility, resulting in a total offense level of 34. At\noffense level 34 and criminal history category VI, Soto’s\nGuidelines range was 262–327 months.\n Soto objected to the career-offender designation and\nargued that his two § 11378 convictions were not qualifying\ncontrolled substances offenses under U.S.S.G. § 4B1.1–2.\nBut the district court adopted the PSR’s calculations and\napplied the career-offender enhancement. The district court\n\f USA V. SOTO 7\n\n\nvaried downward and sentenced Soto to 180 months in\nprison followed by 5 years of supervised release.\n C. Stephen Reid\n Defendant Stephen Reid was indicted in August 2023 on\nsix charges: one count of conspiracy to distribute fentanyl in\nviolation of 21 U.S.C. § 846; two counts of distribution of\nfentanyl in violation of §§ 841(a)(1), (b)(1)(C); one count of\ndistribution of fentanyl in violation of §§ 841(a)(1),\n(b)(1)(B); one count of possession of fentanyl with intent to\ndistribute in violation of §§ 841(a)(1), (b)(1)(A) (which\ncarries a 10-year mandatory minimum sentence); and one\ncount of possession of methamphetamine with intent to\ndistribute in violation of §§ 841(a)(1), (b)(1)(A) (which also\ncarries a 10-year mandatory minimum sentence). In January\n2024, Reid pled guilty to all six charges in the indictment\npursuant to a conditional plea agreement which provided that\nhe would be sentenced only on counts one (conspiracy to\ndistribute fentanyl) and six (possession of\nmethamphetamine), and under which he reserved his right to\nappeal application of the career offender and obstruction of\njustice enhancements to his sentence.\n Relevant here, Reid had twice been convicted of\npossession for sale of methamphetamine in violation of\nCalifornia Health & Safety Code § 11378—once in 2009,\nand once in 2014. In his PSR, Probation calculated Reid’s\nGuidelines range as follows. Pursuant to U.S.S.G. § 2D1.1,\nit determined his base offense level to be 32 based on the\n“converted drug weight’' of the fentanyl and\nmethamphetamine together. Probation then applied the\ncareer offender enhancement, § 4B1.1, which recast his\noffense level to 37. Probation cited Reid’s two prior § 11378\nconvictions as the two qualifying predicate offenses for the\n\f8 USA V. SOTO\n\n\nenhancement. Probation then subtracted 3 points for\nacceptance of responsibility, see U.S.S.G. § 3E1.1, resulting\nin a total offense level of 34. His resulting Guidelines range\nwas 262–327 months.\n The sentencing hearing took place in June 2024.\nCounsel for Reid objected to the career-offender\nenhancement and argued that the two § 11378 convictions\nare not “controlled substance offenses” that qualify him for\nthe enhancement. The district court adopted the PSR’s\ncalculations and applied the career-offender enhancement.\nThe district court varied downward from the 262–327\nmonths guideline range and sentenced at 188 months in\nprison followed by five years of supervised release.\n II. GOVERNING FEDERAL LAW\n Soto and Reid appeal the district courts’ application of\nthe career-offender enhancement based on their § 11378\nconvictions for possession of methamphetamine or\namphetamine. The parties dispute whether a conviction\nunder § 11378 for a specified listed controlled substance\n(e.g., methamphetamine) qualifies as a “controlled substance\noffense” under U.S.S.G. § 4B1.2. That issue turns on a\nquestion of California state law: when a defendant is charged\nwith possession of a specified substance under § 11378,\nwhether the state must prove, and a jury must unanimously\nagree, that the defendant possessed the actual substance\ncharged rather than an analog of that substance. For\nexample, if a defendant is charged with possession of\nmethamphetamine under § 11378, must the state prove, and\nthe jury unanimously agree, that the substance the defendant\npossessed was actual methamphetamine and not an analog\nof methamphetamine? Or may the state alternatively prove\nthe charge by showing that the defendant possessed an\n\f USA V. SOTO 9\n\n\nanalog of methamphetamine consistent with California’s\ndefinition of controlled substance analogs, California Health\n& Safety Code § 11401?\n To illustrate why application of a federal sentencing\nguideline turns on a question of California law, we briefly\nexplain the relevant inquiry under federal law. To determine\nwhether a prior conviction under state law meets the\ndefinition of “controlled substance offense” under federal\nlaw, we follow the “categorical approach” set forth in Taylor\nv. United States, 495 U.S. 575 (1990). There are three\npossible steps. First, we “compare the elements of the\nstatutory definition of the crime of conviction with a federal\ndefinition of the crime to determine whether conduct\nproscribed by the statute is broader than the generic federal\ndefinition.” United States v. Lee, 704 F.3d 785, 788 (9th Cir.\n2012). “If a state law ‘proscribes the same amount of or less\nconduct than’ that qualifying as a federal drug trafficking\noffense, then the two offenses are a categorical match,” and\nthat “end[s] our analysis.” United States v. Martinez-Lopez,\n864 F.3d 1034, 1038 (9th Cir. 2017) (en banc) (quoting\nUnited States v. Hernandez, 769 F.3d 1059, 1062 (9th Cir.\n2014) (per curiam)). But “[i]f the statute criminalizes\nconduct beyond that covered by the Guidelines—regardless\nof the defendant’s actual conduct,” we proceed to step two.\nUnited States v. Tagatac, 36 F.4th 1000, 1004 (9th Cir.\n2022).\n At step two, we ask if the overbroad state statute is\n“divisible.” Martinez-Lopez, 864 F.3d at 1038. Our\ncertified question arises at this step. “A statute is divisible\nonly when it ‘list[s] elements in the alternative, and thereby\ndefine[s] multiple crimes.’” Id. (alterations in original)\n(quoting Mathis v. United States, 579 U.S. 500, 504–05\n(2016)). By contrast, a statute is indivisible if it merely\n\f10 USA V. SOTO\n\n\n“describes different ways to prove a single set of elements.”\nTagatac, 36 F.4th at 1004. Elements are “those\ncircumstances on which the jury must unanimously agree,”\nwhile means are “those circumstances on which the jury may\ndisagree yet still convict.” Rendon v. Holder, 764 F.3d 1077,\n1086 (9th Cir. 2014). “[I]f a statute is both overbroad and\nindivisible, a prior conviction under that statute will never\nqualify as a predicate . . . offense under the federal\nsentencing guidelines,” and our analysis ends. Martinez-\nLopez, 864 F.3d at 1039. If the statute is divisible, we\nproceed to step three to apply the “modified categorical\napproach.” Id.\n At step three, “we examine judicially noticeable\ndocuments of conviction ‘to determine which statutory\nphrase was the basis for the conviction.’” Id. (quoting\nDescamps v. United States, 570 U.S. 254, 263 (2013)).\n“[T]he prior state conviction may serve as a predicate\noffense under the sentencing guidelines” only if “the\ndefendant pled or was found guilty of the elements\nconstituting a federal drug trafficking offense.” Martinez-\nLopez, 864 F.3d at 1039.\n III. PARTIES’ ARGUMENTS\n The parties dispute several legal issues, in addition to the\nissue that is the subject of this certification order. We will\nexplain our resolution of these issues as necessary when we\nissue our final disposition. Because we resolve the relevant\npredicate legal issues in favor of Defendants, 2 the outcome\n\n\n2\n These issues include: (1) whether United States v. Rodriguez-Gamboa,\n972 F.3d 1148 (9th Cir. 2020), and similar cases conclusively hold that\nCalifornia’s definition of methamphetamine is not broader than the\nfederal definition and therefore control the outcome of these appeals; and\n\f USA V. SOTO 11\n\n\nof this appeal turns on the issue we certify here, which arises\nat step two of the categorical analysis.\n At step two, we must determine whether § 11378 is\ndivisible. The parties agree that under California precedent\n“each specifically-listed category of controlled substance”—\ne.g., methamphetamine, cocaine, and heroin—“is an\nalternative element” for purposes of a conviction under\n§ 11378. “[P]ossession of narcotics under different\nclassifications of the [California] Health and Safety Code\nmay be charged and punished as separate crimes.” People v.\nSchroeder, 70 Cal. Rptr. 491, 499 (Ct. App. 1968); see In re\nAdams, 536 P.2d 473, 477 (Cal. 1975) (“simultaneous\npossession of different types of drugs properly may be\nmultiply punished” (citation modified)). The parties also\nagree that variations of a given listed substance—e.g.,\n“methamphetamine, its salts, isomers, and salts of its\nisomers,” Cal. Health & Safety Code § 11055(d)(2)—are\ndifferent “means of committing” the same offense. United\nStates v. Furaha, 992 F.3d 871, 875 (9th Cir. 2021); see\nAdams, 536 P.2d at 477 (“[T]his rule does not apply if the\ndrugs possessed are all of one kind, such as various\nderivatives of the drug opium.” (emphasis added)). Thus, a\nperson who simultaneously possesses methamphetamine\nand heroin may be charged with two separate crimes,\n(1) possession of methamphetamine and (2) possession of\nheroin. But a person who simultaneously possesses two\nisomers of methamphetamine—e.g., D-methamphetamine\nand L-methamphetamine 3 —may be charged only for one\n\n(2) whether § 11378 is overbroad compared to the federal definition at\nstep one of the categorical analysis.\n3\n There are two main isomers of methamphetamine, D-\nmethamphetamine and L-methamphetamine. See The Low-Down on\n\f12 USA V. SOTO\n\n\ncrime, possession of methamphetamine, and the jury need\nnot agree on which particular isomers the defendant\npossessed to convict.\n The parties dispute whether possession of a controlled\nsubstance analog is an alternative means of proving\npossession of the controlled substance of which it is an\nanalog, or whether possession of a controlled substance\nanalog is an alternative element defining a separate crime.\nResolution of this issue is dispositive. If the California\nSupreme Court concludes that the state may prove a § 11378\ncharge for possession of a specified listed controlled\nsubstance (e.g., methamphetamine) by showing the\ndefendant possessed either the actual specified listed\nsubstance or an analog of that substance, then Defendants\nwould prevail. We would conclude that § 11378 is “both\noverbroad and indivisible” at step two, and “a prior\nconviction under that statute will never qualify as a predicate\n. . . offense under the federal sentencing guidelines.”\nMartinez-Lopez, 864 F.3d at 1039. But if the California\nSupreme Court concludes that the state must prove a § 11378\ncharge for possession of a specified listed controlled\nsubstance by showing the defendant possessed that actual\nsubstance and not an analog of that substance, then we will\naffirm the sentences. We would proceed to step three to\napply the “modified categorical approach,” id., and we\nwould conclude that the Government prevails at that step.\n\n\n\nMethamphetamine Isomers: Prevalence and Pharmacology in Humans,\nU. Wisc. Sch. Pharmacy: Barkholtz Rsch. Grp.,\nhttps://pharmacy.wisc.edu/faculty/barkholtz-research-\ngroup/research/the-low-down-on-methamphetamine-isomers-\nprevalence-and-pharmacology-in-humans/ (last visited Dec. 30, 2025).\n\f USA V. SOTO 13\n\n\n We see no clear answer under existing California\nprecedent. We summarize the parties’ arguments below.\n A. Defendants’ Arguments\n Soto and Reid argue that California precedent shows that\npossession of a controlled substance analog is an alternative\nmeans of proving possession of the controlled substance to\nwhich it is an analog—i.e., a jury may convict without\nunanimously agreeing that the defendant possessed the\nactual listed substance or an analog. Defendants cite both\nthe statutory language and California case law. First,\nDefendants note that California Health & Safety Code\n§ 11401(a) states that “[a] controlled substance analog shall\n. . . be treated the same as the controlled substance classified\nin Section 11054 or 11055 . . . of which it is an analog.”\nThey argue that an analog of a controlled substance should\ntherefore be treated as a variety of that substance (like salts\nand isomers of methamphetamine), rather than as separate\nsubstances.\n Second, Defendants cite People v. Becker, 107 Cal. Rptr.\n3d 856 (Ct. App. 2010). In Becker, the defendant was\ncharged with possession of “ecstasy.” 107 Cal. Rptr. 3d at\n858. At the time, ecstasy (or MDMA) was not listed in the\nCalifornia Health and Safety Code as a distinct controlled\nsubstance, id. at 859, and the state’s position on “whether\nEcstasy or [MDMA] was a controlled substance . . . or . . .\nan analog of another controlled substance” was unclear, id.\nat 861. The defendant had argued that “his due process\nrights were violated because . . . the [charging instrument]\nalleged only that Ecstasy was a controlled substance, not a\n\f14 USA V. SOTO\n\n\ncontrolled substance analog.” Id. at 860. The California\nCourt of Appeal held:\n\n [F]or due process purposes there was no need\n to allege that Ecstasy was an analog of a\n controlled substance as opposed to a\n controlled substance, for purposes of section\n 11378 . . . . The references in count 5 of the\n information to “Ecstasy,” “controlled\n substance” and section 11378 fully apprised\n defendant that the prosecution was alleging\n and would seek to prove that Ecstasy was a\n controlled substance for purposes of section\n 11378 . . . .\n\nId. at 860–61. Soto and Reid argue that because\nconstitutional due process requires that the elements of a\ncharged crime be stated in a charging instrument, see\nHamling v. United States, 418 U.S. 87, 117 (1974) (U.S.\nConstitution requires an indictment to “contain[] the\nelements of the offense charged”), “the fact that the\nCalifornia court considered it inconsequential that the\n[charging instrument] alleged only a street name, without\nalleging whether the substance was a methamphetamine\nanalog[] or whether it actually contained methamphetamine,\nindicates the court did not consider these to be separate\n‘elements,’ but rather mere ‘means.’”\n The defendant in Becker had also argued that “evidence\nfailed to show that Ecstasy is either a controlled substance or\nan analog of a controlled substance.” 107 Cal. Rptr. 3d at\n\f USA V. SOTO 15\n\n\n859. The California Court of Appeal rejected that argument\nand explained:\n\n Based on the investigator’s testimony, the\n jury could have reasonably concluded that\n Ecstasy or [MDMA] was (1) a controlled\n substance itself or (2) a controlled substance\n analog of methamphetamine. Thus,\n substantial evidence supports defendant’s\n conviction . . . whether Ecstasy is a\n controlled substance itself or a controlled\n substance analog of methamphetamine.\n\nId. at 860 (emphasis added). Soto and Reid argue that, in so\nholding, the California Court of Appeal made clear that\n“methamphetamine and its analog[s] are interchangeable\nmeans of committing a California controlled substance\noffense, as opposed to separate elements that must be\nseparately charged and proven.”\n Soto and Reid also cite People v. Davis, 303 P.3d 1179\n(Cal. 2013), a California Supreme Court case which\napprovingly cited Becker and stated: “Proof that MDMA\nqualifies as a controlled substance or analog is an element\nof the crimes set out in sections 11377 and 11379.” Davis,\n303 P.3d at 1182 (emphasis added).\n Finally, Soto and Reid point to the relevant California\njury instruction. The Defendants explain:\n\n The relevant jury instruction for § 11378,\n CALCRIM No. 2302, begins with the phrase\n “[t]he defendant is charged [in Count ___]\n with possession for sale of _____ <insert type\n of controlled substance>,” and then goes on\n\f16 USA V. SOTO\n\n\n to permit the prosecution to prove that charge\n by showing that the defendant possessed “an\n analog of _____ <insert type of controlled\n substance>[.]” See CALCRIM No. 2302.\n\nThey argue that the jury instruction “on its face . . . invites\nthe prosecution to charge a ‘type of controlled substance’\nlike methamphetamine, but then prove that\nmethamphetamine charge with evidence that the defendant\npossessed ‘an analog[] of’ that same ‘type of controlled\nsubstance.’” They argue, “That is treating a\nmethamphetamine analog[] as a means of committing a\nmethamphetamine offense, not as a distinct controlled\nsubstance offense.”\n B. Government’s Arguments\n The Government argues that a specific listed controlled\nsubstance and an analog of that substance are alternative\nelements defining separate crimes under § 11378—i.e., the\nstate must prove, and the jury must unanimously agree, that\nthe defendant possessed either the actual listed controlled\nsubstance or an analog of that substance.\n The Government first notes that “California state law\ntreats the type of controlled substance as a separate element\nin prosecuting relevant drug offenses” and that the California\njury instruction for a charge under § 11378 “requires the jury\nto fill in the blank where the controlled substance is to be\nidentified.” Padilla-Martinez v. Holder, 770 F.3d 825, 831\nn.3 (9th Cir. 2014). The Government argues that this means,\n“If the substance at issue . . . is a controlled substance\nanalog[], ‘the judge must require the jury to name the\nspecific type of controlled substance and to find whether it\nis an analog[] of a listed controlled substance,’” which shows\n\f USA V. SOTO 17\n\n\nthat “the jury must unanimously agree that a particular\ncontrolled substance analog[] is the basis of the defendant’s\nconviction.” Marinelarena v. Garland, 6 F.4th 975, 977 (9th\nCir. 2021).\n Next, the Government argues that although California\nlaw provides that a controlled substance analog shall “be\ntreated the same as the controlled substance . . . of which it\nis an analog,” Cal. Health & Safety Code § 11401(a), this is\nonly so “for purposes of . . . penalties and punishment,” id.\n§ 11400; it “does not eliminate or modify the requirement\nthat a jury must unanimously agree about the substance that\nwas possessed.” Therefore, the fact that that California’s\ndefinition of methamphetamine, Cal. Health & Safety Code\n§ 11055(d)(2), “does not mention analog[s], . . . indicates\nthey are not treated the same as ‘salts,’ ‘isomers,’ or\n‘derivates.’”\n Finally, the Government argues for a different reading of\nBecker. As explained, Becker held that “the jury could have\nreasonably concluded that Ecstasy or [MDMA] was (1) a\ncontrolled substance itself or (2) a controlled substance\nanalog of methamphetamine.” 107 Cal. Rptr. 3d at 860. The\nGovernment argues even though the Becker jury did not\nneed to “agree on the legal ‘theory’ underlying [the\ndefendant’s] guilt, the indictment alleged and the jury\nunanimously found—as a factual matter—that the drug\nBecker possessed was Ecstasy,” not methamphetamine or a\nmethamphetamine analog. That fact is significant, the\nGovernment argues, because “[u]nder California law, jurors\nmust agree on . . . what drug did the defendant possess,” and\nnot “the legal theory—whether that drug is a controlled\nsubstance or a controlled substance analog[].”\n\f18 USA V. SOTO\n\n\n * * *\n In our view, both sides make sensible arguments. We\nsee no clear resolution to this dispositive question under\nexisting California precedent. We therefore respectfully ask\nfor guidance from the California Supreme Court.\n IV. CERTIFIED QUESTION\n Accordingly, we certify the following question to the\nCalifornia Supreme Court:\n\n When a defendant is charged with possession\n of a listed controlled substance under\n California Health & Safety Code § 11378,\n must the state prove, and must the jury\n unanimously agree, that the defendant\n possessed the actual listed controlled\n substance, and not an analog of that\n substance as defined under California Health\n & Safety Code § 11401? Or may the jury\n convict if it finds the state has proven the\n defendant possessed either the actual\n controlled substance or an analog of that\n substance, without unanimous agreement as\n to which?\n\n We will accept the decision of the California Supreme\nCourt as controlling. Cal. R. Ct. 8.548(b)(2). We do not\nintend our framing of this question to restrict the California\nSupreme Court’s consideration of any issues that it\ndetermines are relevant. See Cal. R. Ct. 8.548(f)(5). Should\nthe California Supreme Court decide to consider the certified\nquestion, it may, in its discretion, reformulate the question.\n\f USA V. SOTO 19\n\n\nSee Broad v. Mannesmann Anlagenbau AG, 196 F.3d 1075,\n1076 (9th Cir. 1999).\n V. COUNSEL INFORMATION\n The names and addresses of counsel or the parties, as\nrequired by Cal. R. Ct. 8.548(b)(1), are as follows:\n\n Counsel for Defendant Anthony Valentino Soto:\n Sonam A. H. Henderson\n Office of the Federal Public Defender\n 321 E 2nd Street\n Los Angeles, CA 90012\n\n Counsel for Defendant Stephen Reid:\n Holt Ortiz Alden\n Office of the Federal Public Defender\n 321 E 2nd Street\n Los Angeles, CA 90012\n\n Counsel for the United States:\n Rajesh Ram Srinivasan\n Office of the U.S. Attorney\n 312 N Spring Street, Suite 1200\n Los Angeles, CA 90012\n\n VI. CONCLUSION\n The Clerk is directed to forward an original and ten\ncertified copies of this certification order, under official seal,\nto the California Supreme Court. See Cal. R. Ct. 8.548(d).\nThe Clerk is also directed to transmit copies of all relevant\nbriefs, as well as any additional record materials requested\nby the California Supreme Court. See Cal. R. Ct. 8.548(c).\n\f20 USA V. SOTO\n\n\n Submission of this appeal for decision is vacated and\ndeferred pending the California Supreme Court’s final\nresponse to this certification order. The Clerk is directed to\nadministratively close this docket, pending further order.\n The parties shall notify the Clerk of this court within\nfourteen days of the California Supreme Court’s acceptance\nor rejection of certification, and again, if certification is\naccepted, within fourteen days of the California Supreme\nCourt’s issuance of a decision.\n QUESTION CERTIFIED; PROCEEDINGS\nSTAYED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11237705/", "author_raw": "analog[], 'the judge must require the jury to name the"}]}	MARSHA S BERZON	MARK J BENNETT	JENNIFER SUNG	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10771120/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,771,187	State of Oregon v. Trump	2026-01-08	25-7194	U.S. Court of Appeals for the Ninth Circuit	{"judges": "", "parties": "", "opinions": [{"author": "MURGUIA, Chief Judge", "type": "010combined", "text": "FOR PUBLICATION FILED\n UNITED STATES COURT OF APPEALS JAN 8 2026\n MOLLY C. DWYER, CLERK\n U.S. COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\nSTATE OF OREGON; CITY OF Nos. 25-6268, 25-7194\nPORTLAND; STATE OF CALIFORNIA, D.C. No.\n 3:25-cv-01756-IM\n Plaintiffs - Appellees, District of Oregon,\n Portland\n v.\n ORDER\nDONALD J. TRUMP, in his official\ncapacity as President of the United States;\nPETER HEGSETH, in his official capacity\nas Secretary of Defense; UNITED STATES\nDEPARTMENT OF DEFENSE; KRISTI\nNOEM, in her official capacity as Secretary\nof Homeland Security; UNITED STATES\nDEPARTMENT OF HOMELAND\nSECURITY,\n\n Defendants - Appellants.\n\nMURGUIA, Chief Judge:\n\n On November 19, 2025, this court administratively stayed the district court’s\n\nNovember 7, 2025, permanent injunction to the extent that it enjoins the\n\nfederalization of the Oregon National Guard. Dkt. No. 96. On December 29,\n\n2025, this court issued an order directing the parties “to confer about the\n\nprocedural next steps for this appeal” “[i]n light of the United States Supreme\n\nCourt’s denial of the federal government’s application for a stay in Trump v.\n\fIllinois, No. 25A443 (U.S. Dec. 23, 2025).” Dkt. No. 104. The order also directed\n\nthe parties to “file either: (a) a joint proposal if agreement is reached or (b) separate\n\nproposals if no agreement is reached.” Id.\n\n The parties filed their separate proposals on January 7, 2026. Dkt. Nos. 106\n\n& 107. Defendants represented that “[w]ithout prejudice to any future arguments\n\nDefendants might make in this litigation, Defendants withdraw their request for a\n\nstay pending appeal and agree to dissolution of the administrative stay.” Dkt No.\n\n107. Defendants also represented that “Oregon National Guard members are\n\ncurrently in transit to Fort Bliss, Texas, where they will demobilize, and that the\n\ndemobilization process will take approximately 7-14 days to complete.”\n\n The administrative stay entered by this court on November 19, 2025, Dkt.\n\nNo. 96, is hereby VACATED.\n\n\n\n\n 2 25-6268, 25-7194", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11237772/"}]}				0		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10771187/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,772,506	Healy v. Milliman, Inc.	2026-01-09	24-3327	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Sidney R. Thomas, Daniel A. Bress, and Salvador Mendoza, Jr., Circuit Judges.", "parties": "", "opinions": [{"author": "S.R. THOMAS, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\nJAMES HEALY, No. 24-3327\n D.C. No.\n Plaintiff - Appellant,\n 2:20-cv-01473-\n JCC\n v.\n\nMILLIMAN, INC.,\n OPINION\n Defendant - Appellee.\n\n Appeal from the United States District Court\n for the Western District of Washington\n John C. Coughenour, District Judge, Presiding\n\n Argued and Submitted November 19, 2025\n San Francisco, California\n\n Filed January 9, 2026\n\nBefore: Sidney R. Thomas, Daniel A. Bress, and Salvador\n Mendoza, Jr., Circuit Judges.\n\n Opinion by Judge Sidney R. Thomas\n\f2 HEALY V. MILLIMAN, INC.\n\n\n SUMMARY \n\n\n Class Actions / Standing\n\n Reversing the district court’s partial grant of summary\njudgment in favor of defendant Milliman, Inc., and\nremanding in an action under the Fair Credit Reporting Act,\nthe panel held that, following class certification, both named\nand unnamed class members in a money damages suit must\npresent evidence of standing at summary judgment, but the\nusual summary judgment standards apply.\n Named plaintiff James Healy alleged that Milliman’s\ninaccurate consumer reports violated 15 U.S.C.\n§ 1681e(b). The district court certified an “inaccuracy\nclass.” Milliman sought partial summary judgment, arguing\nthat Healy needed to demonstrate class-wide standing for the\ninaccuracy class. The district court granted Milliman’s\nmotion, holding that, under TransUnion LLC v. Ramirez,\n594 U.S. 413 (2021), Healy had to present at least some\ndirect evidence of concrete injury on a class-wide basis but\nfailed to do so. Healy filed an interlocutory appeal pursuant\nto 28 U.S.C. § 1292(b).\n Agreeing with the district court, the panel concluded that\nthe logic of TransUnion requires both named and unnamed\nmembers of a certified class for money damages to\ndemonstrate standing at summary judgment. The panel\nheld, however, that plaintiffs could use either direct evidence\nor circumstantial evidence and did not need to show that a\njury necessarily would find in their favor. The panel\n\n\n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\f HEALY V. MILLIMAN, INC. 3\n\n\nremanded for the district court to consider whether Healy\nhad presented enough circumstantial evidence that a rational\ntrier of fact could reasonably infer that there was class-wide\nstanding.\n\n\n\n COUNSEL\n\nMatthew W.H. Wessler (argued) and Gabriel Chess, Gupta\nWessler LLP, Washington, D.C.; Jessica Garland, Gupta\nWessler LLP, San Francisco, California; Blythe H.\nChandler, Beth E. Terrell, Jennifer R. Murray, and Adrienne\nD. McEntee, Terrell Marshall Law Group PLLC, Seattle,\nWashington; James A. Francis, Lauren K.W. Brennan, and\nJohn Soumilas, Francis Mailman Soumilas PC, Philadelphia,\nPennsylvania; for Plaintiff-Appellant.\nNathaniel Garrett (argued) and Eric A. Nicholson, Jones\nDay, San Francisco, California; Adam W. Wiers, Jones Day,\nChicago, Illinois; Daniel A. Brown, Jeffery M. Wells, and\nRodney L. Umberger, Williams Kastner, Seattle,\nWashington; for Defendant-Appellee.\nErik R. Zimmerman and Zachary A. Johnson, Robinson\nBradshaw and Hinson PA, Chapel Hill, North Carolina;\nJennifer B. Dickey and Jonathan D. Urick, U.S. Chamber\nLitigation Canter, Washington, D.C.; for Amici Curiae the\nChamber of Commerce of the United States of America and\nthe Consumer Data Industry Association.\n\f4 HEALY V. MILLIMAN, INC.\n\n\n OPINION\n\nS.R. THOMAS, Circuit Judge:\n\n This appeal presents the question of whether, following\nclass certification, both named and unnamed class members\nin a money damages suit must present evidence of standing\nat summary judgment. We conclude that they must do so.\nHowever, we further hold that the usual summary judgment\nstandards apply. We remand for the district court to re-\nexamine the unnamed class members’ standing using the\nusual standards applicable for deciding summary judgment\nmotions.\n I\n A\n Milliman, Inc. is an independent risk management,\nbenefits, and technology firm based in Seattle. One of its\nservices is “Intelliscript,” which compiles reports containing\na consumer’s medical history and sells those reports to third-\nparty insurers such as life insurance companies. When an\nindividual applies for insurance, the insurance company\nsubmits an inquiry to Milliman for information on the\napplicant’s medical history, prescription history, or both.\nThe insurance company sends Milliman the applicant’s first\nand last name, date of birth, gender, social security number,\nand zip code so that Milliman can obtain the applicant’s\nhealth records from sources such as pharmacy benefit\nmanagers, pharmacies, and health insurance companies.\n Approximately 87% of information that Milliman\nmatches to applicants is based on the applicant’s social\nsecurity number. The remaining 13% of information that\nMilliman matches to applicants is based on the name, date\n\f HEALY V. MILLIMAN, INC. 5\n\n\nof birth, zip code, and gender that the applicant provided to\nthe insurance company. Sometimes, Milliman obtains data\nthat exactly matches these identifiers.\n Other times, Milliman uses “fuzzy matching” to pull in\nrecords that have personal identifying information that is\nsimilar to, but not exactly the same as, the applicant’s. For\nexample, Milliman will look at records with names that are\nnearly identical and contain the same consonants, instances\nwhere the first and last name are reversed, the use of\nnicknames for first names, and variations in the use of\nsuffixes or hyphens. When Milliman identifies health\nrecords using “fuzzy matching,” the company includes them\non an applicant’s report even if the records are associated\nwith a social security number that is different than the\napplicant’s.\n Beyond compiling an applicant’s medical data,\nMilliman’s reports also analyze this data and give\nunderwriting recommendations to the requesting insurance\ncompany. To do so, Milliman applies the insurance\ncompany’s “decision criteria” and, based on those criteria,\ntells the company whether each piece of medical data on the\nreport is a high, medium, or low risk indicator. Milliman’s\nreports communicate their recommendations to the insurer\nby using red, yellow, and green flags. A report that contains\na red flag assigns the applicant the highest risk indicator and\nmeans that applicant is not eligible to receive the insurance\npolicy for which they applied. In Milliman’s words, this\nmeans that an insurance company has “[n]o need [to]\nreview” the application and should decline it outright. A\nyellow flag instructs insurers to exercise caution prior to\nextending insurance to an applicant because the applicant is\nhigher risk. A green flag indicates the lowest level of risk.\n\f6 HEALY V. MILLIMAN, INC.\n\n\n B\n James Healy, the named plaintiff in this case, applied for\nlife insurance with Americo Financial Life and Annuity\nInsurance Company in April 2020. Americo requested a\nreport of Healy’s medical and prescription history from\nMilliman. But the report Milliman supplied Americo\ncontained another individual’s medical records and social\nsecurity number. As a result, Milliman wrongly attributed\nserious medical conditions to Healy that it tagged with a red\nflag, such as liver disease, osteoarthritis, diabetes, chest\npains, and sleep apnea. Healy, however, had a clean bill of\nhealth.\n Americo denied Healy’s life insurance application\nbecause of the erroneous red flags in Milliman’s report.\nAfter his application was denied, Healy repeatedly contacted\nMilliman to fix his report. Milliman failed to timely\ninvestigate or correct the errors.\n C\n On October 5, 2020, Healy filed this class action lawsuit\nagainst Milliman. Relevant to this appeal, Healy argued that\nMilliman’s inaccurate consumer reports violated the Fair\nCredit Reporting Act’s requirement at 15 U.S.C. § 1681e(b)\nthat consumer reporting agencies adopt reasonable\nprocedures that ensure the maximum possible accuracy of\nreported information.\n At first, the district court certified an “inaccuracy class”\non this basis. Healy alleges that Milliman sold a report about\nconsumers in the inaccuracy class to a third party containing\ninformation which did not pertain to the individual who was\nthe subject of the report. To identify members of this class,\nHealy pointed to 311,226 reports that Milliman sent to\n\f HEALY V. MILLIMAN, INC. 7\n\n\ninsurance companies that (1) had a conflict between the\napplicant’s social security number and the social security\nnumber on the data source and (2) contained at least one\nprescription or medical record that had a yellow or red risk\nindicator flag.\n After class certification but before trial, Milliman filed a\nmotion for partial summary judgment, arguing that Healy\nneeded to demonstrate class-wide standing for the\ninaccuracy class. In Milliman’s view, Healy was unable to\ndo so. Although Healy had identified reports with\nmismatched social security numbers, Milliman argued that\nthere was no way to determine on a class-wide basis whether\na report was actually a “mixed file,” i.e., a report which\ncontains mismatched health information. Milliman\ncontended that a report with a mismatched social security\nnumber may not be a “mixed file” at all because the record\ncould, for example, include the primary insured’s social\nsecurity number but still feature the applicant’s health\ninformation.\n In response, Healy argued that evidence of class-wide\nstanding was not necessary at summary judgment. Rather,\nHealy merely needed to produce evidence that the named\nclass member—but not unnamed class members—could\nsatisfy the standing requirements. And, even if evidence of\nclass-wide standing was necessary at summary judgment,\nHealy argued that it was reasonable to infer that medical\nrecords associated with a different social security number\nthan an applicant’s contain inaccurate medical information.\n The district court granted Milliman’s motion for partial\nsummary judgment and dismissed the inaccuracy class. The\ndistrict court held that, under the Supreme Court’s decision\nin TransUnion LLC v. Ramirez, 594 U.S. 413 (2021), Healy\n\f8 HEALY V. MILLIMAN, INC.\n\n\nhad to present “at least some direct evidence of concrete\ninjury on a class-wide basis” at summary judgment in a suit\nfor money damages.. The district court concluded that Healy\nfailed to do so here. Though mismatched social security\nnumbers in unnamed class members’ reports were\n“indicative of a misattributed or erroneous health record,”\nthey were not “direct evidence of injury” because\n“mismatched identifiers do not necessarily demonstrate\nmisattributed health records.” For instance, the district court\nnoted that a mismatched social security number could\nmerely be the result of a “simple transposition” error.\n Healy moved for reconsideration, or, in the alternative,\nasked the district court to certify its order for interlocutory\nappeal. The district court denied the motion for\nreconsideration but certified its order for interlocutory\nappeal under 28 U.S.C. § 1292(b).\n II\n The district court had jurisdiction under 28 U.S.C.\n§ 1331 because Healy’s claim arises under the Federal\nCredit Reporting Act. We have jurisdiction under 28 U.S.C.\n§ 1292(b) because on April 9, 2024, the district court\ncertified its order granting partial summary judgment to\nMilliman for interlocutory appeal. Healy timely filed a\npetition for permission to appeal in this Court on April 19,\n2024, which we granted on May 24, 2024.\n We review the district court’s grant of summary\njudgment de novo, “including legal determinations\nregarding standing.” Ochoa v. Pub. Consulting Grp., Inc.,\n48 F.4th 1102, 1106 (9th Cir. 2022) (quoting Alaska Right to\nLife PAC v. Feldman, 504 F.3d 840, 848 (9th Cir. 2007)). In\ndoing so, we must determine “whether the district court\ncorrectly applied the relevant substantive law.” Stewart v.\n\f HEALY V. MILLIMAN, INC. 9\n\n\nThorpe Holding Co. Profit Sharing Plan, 207 F.3d 1143,\n1148 (9th Cir. 2000) (quoting Robi v. Reed, 173 F.3d 736,\n739 (9th Cir. 1999)).\n III\n Healy and Milliman dispute when unnamed members of\na certified class for money damages must demonstrate\nArticle III standing. We conclude that the logic of\nTransUnion LLC v. Ramirez, 594 U.S. 413 (2021) requires\nunnamed members of a certified class for money damages to\ndemonstrate standing at summary judgment.\n At the start of the life cycle of a class action before a\nclass is certified, the parties agree that only named class\nmembers—but not unnamed class members—must\ndemonstrate evidence of standing. To this end, we have\nconsistently held that Article III’s requirements are satisfied\nbefore a class is certified as long as at least one named\nplaintiff has standing. See In re Zappos.com, Inc., 888 F.3d\n1020, 1028 n.11 (9th Cir. 2018); Melendres v. Arpaio, 784\nF.3d 1254, 1262 (9th Cir. 2015). We have held that this is\nthe case whether the class action seeks money damages or\nequitable relief. See Casey v. Lewis, 4 F.3d 1516, 1519 (9th\nCir. 1993) (assessing whether at least one named plaintiff\nsatisfies the standing requirements in a suit for injunctive\nrelief); In re Zappos.com, 888 F.3d at 1028 n.11 (same for\nclass action seeking damages). The Supreme Court did not\ndisturb this approach in TransUnion given that it expressly\nrefused to address “whether every class member must\ndemonstrate standing before a court certifies a class.”\nTransUnion, 594 U.S. at 431 n.4.\n The parties also agree that, at the end of the life cycle of\na class action for money damages in particular, both named\nand unnamed class members must demonstrate standing no\n\f10 HEALY V. MILLIMAN, INC.\n\n\nlater than when they seek to recover individual damages.\nThis conclusion follows inescapably from the Supreme\nCourt’s instruction in TransUnion that “[e]very class\nmember must have Article III standing in order to recover\nindividual damages.” Id. at 431. Neither party argues that\nTransUnion overturned the Supreme Court’s prior direction\nthat only one named plaintiff needs to demonstrate standing\nin a class action seeking equitable relief, even at the final\nstage of a case when relief is awarded. See Baggett v. Bullitt,\n377 U.S. 360, 366 n.5 (1964); cf. Bates v. United Parcel\nServ., Inc., 511 F.3d 974, 985 (9th Cir. 2007) (en banc)\n(assessing “only whether at least one named plaintiff\nsatisfies the standing requirements for injunctive relief”). To\nthis end, the Court in TransUnion repeatedly emphasized\nthat the standing requirements for damages and equitable\nrelief are not necessarily the same. See TransUnion, 594\nU.S. at 436 (“[A] plaintiff’s standing to seek injunctive relief\ndoes not necessarily mean that the plaintiff has standing to\nseek retrospective damages.”); id. at 431 (“[S]tanding is not\ndispensed in gross; rather, plaintiffs must demonstrate\nstanding for each claim that they press and for each form of\nrelief that they seek (for example, injunctive relief and\ndamages).”).\n The disagreement at summary judgment in this case is a\nnarrow one: in a class action for damages, do unnamed class\nmembers need to demonstrate evidence of standing after\nclass certification but before individual damages are\nawarded? Healy argues that unnamed class members only\nneed to demonstrate standing at the time that individual\nmoney damages are awarded. Milliman instead argues that\nunnamed class members must demonstrate standing\nearlier—after class certification at summary judgment. We\nagree with the district court that TransUnion requires\n\f HEALY V. MILLIMAN, INC. 11\n\n\nunnamed class members to demonstrate evidence of\nstanding after class certification at summary judgment.\n To understand why, a brief recap of TransUnion is\nhelpful. There, a class of 8,185 individuals sued a credit\nreporting agency, TransUnion, under the Federal Credit\nReporting Act (the “Act”). TransUnion, 594 U.S. at 417.\nThe class argued that TransUnion violated the Act in two\nways. First, similar to the situation in this case, the class\nalleged that TransUnion violated § 1681e(b) of the Act when\nit failed “to use reasonable procedures to ensure the accuracy\nof their credit files.” Id. at 417-18. Within the class,\nTransUnion “provided misleading credit reports to third-\nparty businesses” for 1,853 of the class members. Id. at 417.\nBut “[t]he internal credit files of the other 6,332 class\nmembers were not provided to third-party businesses during\nthe relevant time period.” Id. Second, the class alleged that\ncertain TransUnion mailings had formatting defects which\nviolated the Act. Id. at 418. On appeal, we determined that\nall 8,185 class members had standing for both sets of their\nclaims and approved a class damages award of about $40\nmillion. Id.\n The Supreme Court reversed. First, under the § 1681e(b)\nreasonable procedures claim, the Court held that only the\n1,853 class members whose reports were sent to third-party\nbusinesses “demonstrated concrete reputational harm and\nthus have Article III standing.” Id. at 417. Second, under\nthe class’s procedural defects claims, the Court determined\nthat only the named plaintiff, Ramirez, had standing because\nhe was the only class member who “demonstrated that\n[TransUnion’s] alleged formatting errors caused [him] any\nconcrete harm.” Id. at 418.\n\f12 HEALY V. MILLIMAN, INC.\n\n\n TransUnion articulated several principles underlying\nthis holding which likewise guide our decision here. For\none, the Court made clear that named and unnamed class\nmembers must demonstrate standing at trial. As the Court\nwrote, “in a case . . . that proceeds to trial, the specific facts\nset forth by the plaintiff to support standing ‘must be\nsupported adequately by the evidence adduced at trial.’” Id.\nat 431 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 561\n(1992)). Healy suggests this language only applies to the\nnamed plaintiff in a class action rather than unnamed class\nmembers, but the Court’s standing analysis in TransUnion\nindicates otherwise.\n In the context of the TransUnion class’s § 1681e(b)\nchallenge, the Court determined that “[t]he plaintiffs had the\nburden to prove at trial that their reports were actually sent\nto third-party businesses.” Id. at 439 (emphasis added). The\nCourt, therefore, examined the trial record for evidence of\ninjury to not just the named plaintiff, but also unnamed class\nmembers. The Court determined that “the 1,853 class\nmembers (including the named plaintiff Ramirez) whose\nreports were disseminated to third-party businesses” had\n“suffered a concrete harm” that sufficed for standing. Id. at\n432. But the Court also examined the trial record to\ndetermine whether the 6,332 class members whose reports\nwere not disseminated to third-party businesses—all\nunnamed plaintiffs—had standing. On this point, the Court\nwrote that “the plaintiffs did not present any evidence\nthat . . . 6,332 [of the unnamed] class members even knew\nthat there” was inaccurate information in their credit files.\nId. at 438 (emphasis omitted). In fact, “[i]f those plaintiffs\nprevailed in this case, many of them would first learn that\nthey were ‘injured’ when they received a check\ncompensating them for their supposed ‘injury.’” Id.\n\f HEALY V. MILLIMAN, INC. 13\n\n\n So too with the class’s procedural claims. Although the\nCourt acknowledged that the named class member, Ramirez,\nhad presented evidence at trial demonstrating that the format\nof TransUnion’s mailings caused him harm, the Court\nconcluded that this was not the case for any of the unnamed\nclass members. Id. at 440. Indeed, “[t]he plaintiffs\npresented no evidence that, other than Ramirez, a single\nother class member so much as opened the dual mailings,\nnor that they were confused, distressed, or relied on the\ninformation in any way.” Id. (citation modified). Thus, the\nCourt concluded that only the named class member,\nRamirez, had standing for the class’s procedural claims. Id.\n Healy contends that the standing inquiry for unnamed\nclass members must wait until the final stage of a damages\naction. But there is no suggestion that the Supreme Court\nreferred to any information uncovered during an\nindividualized claims process in concluding that unnamed\nclass members lacked standing for either claim. Rather, the\nCourt concluded that named and unnamed class members\nalike had a burden to demonstrate standing at trial.\n We conclude that TransUnion also compels unnamed\nclass members to demonstrate evidence of standing here—\nafter class certification but prior to trial at summary\njudgment. This follows directly from TransUnion’s\ninstruction that plaintiffs “must demonstrate standing ‘with\nthe manner and degree of evidence required at the successive\nstages of the litigation.’” Id. at 431 (quoting Lujan, 504 U.S.\nat 561). Drawing from our typical summary judgment\nstandard, though unnamed class members “need not\nestablish that they in fact have standing,” they would at least\nhave to demonstrate “that there is a genuine question of\nmaterial fact as to the standing elements.” Cent. Delta Water\nAgency v. United States, 306 F.3d 938, 947 (9th Cir. 2002).\n\f14 HEALY V. MILLIMAN, INC.\n\n\nThis approach is consistent with TransUnion’s express\nclarification that its holding did not “address the distinct\nquestion whether every class member must demonstrate\nstanding before a court certifies a class,” in contrast to the\npost-certification summary judgment stage at issue here.\n594 U.S. at 431 n.4.\n Healy raises essentially two arguments in response, one\nfocused on TransUnion and one focused on our own\ncaselaw. First, Healy argues that TransUnion only requires\nunnamed class members to demonstrate standing at the final\nstage of a damages action because the case only reached the\nSupreme Court after the district court had ordered the\ndefendant to pay unnamed class members individual\ndamages. On this point, Healy similarly points to the Court’s\nstatement that “[e]very class member must have Article III\nstanding in order to recover individual damages.”\nTransUnion, 594 U.S. at 431. But it does not follow that the\nCourt therefore meant that unnamed class members only\nneed to demonstrate standing at the time that they recover\nindividual damages. Instead, TransUnion made clear that\n“in a case like this that proceeds to trial, the specific facts set\nforth by the plaintiff to support standing ‘must be supported\nadequately by the evidence adduced at trial.’” Id. (quoting\nLujan, 504 U.S. at 561).\n Second, Healy argues that requiring unnamed class\nmembers to demonstrate evidence of standing at summary\njudgment in a suit for money damages would run afoul of\nour own class action caselaw. We disagree. For one, nearly\nall of the cases Healy cites predate TransUnion and therefore\nhave since been abrogated to the extent they would have\npermitted unnamed class members to go without\ndemonstrating standing at trial or in any later claims process.\nSee, e.g., Ramirez v. TransUnion, LLC, 951 F.3d 1008,\n\f HEALY V. MILLIMAN, INC. 15\n\n\n1022-23 (9th Cir. 2020); Bates, 511 F.3d at 985; Casey, 4\nF.3d at 1519; Stearns v. Ticketmaster Corp., 655 F.3d 1013,\n1021 (9th Cir. 2011); In re Zappos.com, Inc., 888 F.3d at\n1028 n.11; Magadia v. Wal-Mart Assocs., Inc., 999 F.3d\n668, 680 (9th Cir. 2021); Ruiz Torres v. Mercer Canyons\nInc., 835 F.3d 1125, 1137 n.6 (9th Cir. 2016); Gutierrez v.\nWells Fargo Bank, N.A., 704 F.3d 712, 728 (9th Cir. 2012);\nBriseno v. ConAgra Foods, Inc., 844 F.3d 1121, 1131-32\n(9th Cir. 2017). The one case Healy cites that postdates\nTransUnion, DZ Reserve v. Meta Platforms, Inc., concerned\nin relevant part whether a class had “Article III standing to\nseek injunctive relief,” not the damages sought by the class\nat issue here. 96 F.4th 1223, 1239 (9th Cir. 2024). Likewise,\nDZ Reserve addressed the standing inquiry at the time of\nclass certification, not afterwards at summary judgment. Id.\nat 1231.\n Contrary to Healy’s contention, our holding comports\nwith this circuit’s limited discussion of TransUnion to date.\nAs we wrote in In re Apple Inc. Device Performance\nLitigation, “[h]ad the parties brought the case to trial, as in\nTransUnion, plaintiffs’ allegation of classwide injury would\nhave been either proven or disproven.” 50 F.4th 769, 782\n(9th Cir. 2022) (citation modified). But because the case\nsettled “prior to class certification or summary judgment,”\nmere allegations of classwide injury were sufficient without\nindividualized proof. Id. (emphasis added).\n In light of TransUnion, therefore, we conclude that the\ndistrict court correctly determined that both named and\nunnamed members of Healy’s inaccuracy class had to\nproduce evidence of standing at summary judgment.\n\f16 HEALY V. MILLIMAN, INC.\n\n\n IV\n We part ways from the district court, however, in its\napplication of the summary judgment standard to this case.\nAs noted above, “at the summary judgment stage the\nplaintiffs need not establish that they in fact have standing,\nbut only that there is a genuine question of material fact as\nto the standing elements.” Cent. Delta Water Agency, 306\nF.3d at 947. To survive a motion for summary judgment,\ntherefore, a plaintiff only must show that a rational trier of\nfact “could” find for them at trial. See Matsushita Elec.\nIndus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587\n(1986). In the context of Healy’s § 1681e(b) claim in\nparticular, this Court has held that a consumer at summary\njudgment must “present evidence tending to show that a\ncredit reporting agency prepared a report containing\ninaccurate information.” Guimond v. Trans Union Credit\nInfo. Co., 45 F.3d 1329, 1333 (9th Cir. 1995).\n In doing so, plaintiffs can use either direct evidence or\ncircumstantial evidence. See, e.g., Keyser v. Sacramento\nCity Unified Sch. Dist., 265 F.3d 741, 751-52 (9th Cir. 2001)\n(recognizing cases where “circumstantial evidence created a\ngenuine issue of material fact” at summary judgment);\nDesert Palace, Inc. v. Costa, 539 U.S. 90, 99 (2003)\n(describing “conventional rule of civil litigation” that\nplaintiffs may “us[e] direct or circumstantial evidence” to\nprove their case). Direct evidence “proves [a]\nfact . . . without inference or presumption.” Coghlan v. Am.\nSeafoods Co. LLC, 413 F.3d 1090, 1095 (9th Cir. 2005)\n(citation modified). Circumstantial evidence “tend[s] to\nshow” a fact by way of “infer[ences].” Treasure Val. Potato\nBargaining Ass’n v. Ore-Ida Foods, Inc., 497 F.2d 203, 208\n(9th Cir. 1974).\n\f HEALY V. MILLIMAN, INC. 17\n\n\n The district court contravened this settled law of\nsummary judgment in two ways. First, the district court\nconcluded that Healy had the burden to present “direct\nevidence of concrete injury on a class-wide basis” at\nsummary judgment. But this is incorrect as a matter of law\ngiven that either direct or circumstantial evidence may\nsuffice at summary judgment. See Keyser, 265 F.3d at 751-\n52. At summary judgment, Healy identified 311,226 of\nMilliman’s consumer reports issued to insurance companies\nthat included (1) a social security number not belonging to\nthe applicant and (2) a medium or high risk indicator within\nthat report. Although the district court acknowledged that\nthis evidence was “indicative of a misattributed or erroneous\nhealth record,” the court concluded that this was not enough\nat summary judgment because it was not “direct evidence of\ninjury.” But evidence which is “indicative” of a\nmisattributed or erroneous health record is the sort of\ncircumstantial evidence which has long been permissible at\nsummary judgment. See, e.g., Guimond, 45 F.3d at 1333\n(requiring “evidence tending to show that a credit reporting\nagency prepared a report containing inaccurate information”\non summary judgment in a § 1681e(b) case (emphasis\nadded)).\n Second, and relatedly, the district court imposed an\nunduly high burden on Healy at summary judgment. In the\ndistrict court’s view, the key problem was that mismatched\nsocial security numbers “do not necessarily demonstrate\nmisattributed health records.” (Emphasis added). However,\nthis observation overstates the burden placed on a party\nopposing summary judgment. Healy did not need to show\nthat a jury “necessarily” would find that mismatched social\nsecurity numbers demonstrate misattributed health records.\nRather, Healy merely needed to produce enough evidence at\n\f18 HEALY V. MILLIMAN, INC.\n\n\nsummary judgment that a rational trier of fact “could”\nreasonably infer that this was the case. Matsushita, 475 U.S.\nat 587. The district court therefore erred in applying an\nimproperly narrow standard at summary judgment.\n V\n In sum, we hold that TransUnion requires named and\nunnamed members of a certified class for money damages to\ndemonstrate that there is a genuine dispute of material fact\nover standing at summary judgment. We also hold that the\ndistrict court misapplied the law of summary judgment in\nassessing whether the class here had done so. We therefore\nreverse the district court’s partial grant of summary\njudgment and remand for the court to consider whether\nHealy has presented enough circumstantial evidence that a\nrational trier of fact could reasonably infer that there was\nclass-wide standing. We express no view on whether the\ncircumstantial evidence does create a genuine dispute of\nmaterial fact in this regard.\n REVERSED AND REMANDED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11239091/", "author_raw": "S.R. THOMAS, Circuit Judge:"}, {"author": "S.R. THOMAS, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\nJAMES HEALY, No. 24-3327\n D.C. No.\n Plaintiff - Appellant,\n 2:20-cv-01473-\n JCC\n v.\n\nMILLIMAN, INC.,\n OPINION\n Defendant - Appellee.\n\n Appeal from the United States District Court\n for the Western District of Washington\n John C. Coughenour, District Judge, Presiding\n\n Argued and Submitted November 19, 2025\n San Francisco, California\n\n Filed January 9, 2026\n\nBefore: Sidney R. Thomas, Daniel A. Bress, and Salvador\n Mendoza, Jr., Circuit Judges.\n\n Opinion by Judge Sidney R. Thomas\n\f2 HEALY V. MILLIMAN, INC.\n\n\n SUMMARY \n\n\n Class Actions / Standing\n\n Reversing the district court’s partial grant of summary\njudgment in favor of defendant Milliman, Inc., and\nremanding in an action under the Fair Credit Reporting Act,\nthe panel held that, following class certification, both named\nand unnamed class members in a money damages suit must\npresent evidence of standing at summary judgment, but the\nusual summary judgment standards apply.\n Named plaintiff James Healy alleged that Milliman’s\ninaccurate consumer reports violated 15 U.S.C.\n§ 1681e(b). The district court certified an “inaccuracy\nclass.” Milliman sought partial summary judgment, arguing\nthat Healy needed to demonstrate class-wide standing for the\ninaccuracy class. The district court granted Milliman’s\nmotion, holding that, under TransUnion LLC v. Ramirez,\n594 U.S. 413 (2021), Healy had to present at least some\ndirect evidence of concrete injury on a class-wide basis but\nfailed to do so. Healy filed an interlocutory appeal pursuant\nto 28 U.S.C. § 1292(b).\n Agreeing with the district court, the panel concluded that\nthe logic of TransUnion requires both named and unnamed\nmembers of a certified class for money damages to\ndemonstrate standing at summary judgment. The panel\nheld, however, that plaintiffs could use either direct evidence\nor circumstantial evidence and did not need to show that a\njury necessarily would find in their favor. The panel\n\n\n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\f HEALY V. MILLIMAN, INC. 3\n\n\nremanded for the district court to consider whether Healy\nhad presented enough circumstantial evidence that a rational\ntrier of fact could reasonably infer that there was class-wide\nstanding.\n\n\n\n COUNSEL\n\nMatthew W.H. Wessler (argued) and Gabriel Chess, Gupta\nWessler LLP, Washington, D.C.; Jessica Garland, Gupta\nWessler LLP, San Francisco, California; Blythe H.\nChandler, Beth E. Terrell, Jennifer R. Murray, and Adrienne\nD. McEntee, Terrell Marshall Law Group PLLC, Seattle,\nWashington; James A. Francis, Lauren K.W. Brennan, and\nJohn Soumilas, Francis Mailman Soumilas PC, Philadelphia,\nPennsylvania; for Plaintiff-Appellant.\nNathaniel Garrett (argued) and Eric A. Nicholson, Jones\nDay, San Francisco, California; Adam W. Wiers, Jones Day,\nChicago, Illinois; Daniel A. Brown, Jeffery M. Wells, and\nRodney L. Umberger, Williams Kastner, Seattle,\nWashington; for Defendant-Appellee.\nErik R. Zimmerman and Zachary A. Johnson, Robinson\nBradshaw and Hinson PA, Chapel Hill, North Carolina;\nJennifer B. Dickey and Jonathan D. Urick, U.S. Chamber\nLitigation Canter, Washington, D.C.; for Amici Curiae the\nChamber of Commerce of the United States of America and\nthe Consumer Data Industry Association.\n\f4 HEALY V. MILLIMAN, INC.\n\n\n OPINION\n\nS.R. THOMAS, Circuit Judge:\n\n This appeal presents the question of whether, following\nclass certification, both named and unnamed class members\nin a money damages suit must present evidence of standing\nat summary judgment. We conclude that they must do so.\nHowever, we further hold that the usual summary judgment\nstandards apply. We remand for the district court to re-\nexamine the unnamed class members’ standing using the\nusual standards applicable for deciding summary judgment\nmotions.\n I\n A\n Milliman, Inc. is an independent risk management,\nbenefits, and technology firm based in Seattle. One of its\nservices is “Intelliscript,” which compiles reports containing\na consumer’s medical history and sells those reports to third-\nparty insurers such as life insurance companies. When an\nindividual applies for insurance, the insurance company\nsubmits an inquiry to Milliman for information on the\napplicant’s medical history, prescription history, or both.\nThe insurance company sends Milliman the applicant’s first\nand last name, date of birth, gender, social security number,\nand zip code so that Milliman can obtain the applicant’s\nhealth records from sources such as pharmacy benefit\nmanagers, pharmacies, and health insurance companies.\n Approximately 87% of information that Milliman\nmatches to applicants is based on the applicant’s social\nsecurity number. The remaining 13% of information that\nMilliman matches to applicants is based on the name, date\n\f HEALY V. MILLIMAN, INC. 5\n\n\nof birth, zip code, and gender that the applicant provided to\nthe insurance company. Sometimes, Milliman obtains data\nthat exactly matches these identifiers.\n Other times, Milliman uses “fuzzy matching” to pull in\nrecords that have personal identifying information that is\nsimilar to, but not exactly the same as, the applicant’s. For\nexample, Milliman will look at records with names that are\nnearly identical and contain the same consonants, instances\nwhere the first and last name are reversed, the use of\nnicknames for first names, and variations in the use of\nsuffixes or hyphens. When Milliman identifies health\nrecords using “fuzzy matching,” the company includes them\non an applicant’s report even if the records are associated\nwith a social security number that is different than the\napplicant’s.\n Beyond compiling an applicant’s medical data,\nMilliman’s reports also analyze this data and give\nunderwriting recommendations to the requesting insurance\ncompany. To do so, Milliman applies the insurance\ncompany’s “decision criteria” and, based on those criteria,\ntells the company whether each piece of medical data on the\nreport is a high, medium, or low risk indicator. Milliman’s\nreports communicate their recommendations to the insurer\nby using red, yellow, and green flags. A report that contains\na red flag assigns the applicant the highest risk indicator and\nmeans that applicant is not eligible to receive the insurance\npolicy for which they applied. In Milliman’s words, this\nmeans that an insurance company has “[n]o need [to]\nreview” the application and should decline it outright. A\nyellow flag instructs insurers to exercise caution prior to\nextending insurance to an applicant because the applicant is\nhigher risk. A green flag indicates the lowest level of risk.\n\f6 HEALY V. MILLIMAN, INC.\n\n\n B\n James Healy, the named plaintiff in this case, applied for\nlife insurance with Americo Financial Life and Annuity\nInsurance Company in April 2020. Americo requested a\nreport of Healy’s medical and prescription history from\nMilliman. But the report Milliman supplied Americo\ncontained another individual’s medical records and social\nsecurity number. As a result, Milliman wrongly attributed\nserious medical conditions to Healy that it tagged with a red\nflag, such as liver disease, osteoarthritis, diabetes, chest\npains, and sleep apnea. Healy, however, had a clean bill of\nhealth.\n Americo denied Healy’s life insurance application\nbecause of the erroneous red flags in Milliman’s report.\nAfter his application was denied, Healy repeatedly contacted\nMilliman to fix his report. Milliman failed to timely\ninvestigate or correct the errors.\n C\n On October 5, 2020, Healy filed this class action lawsuit\nagainst Milliman. Relevant to this appeal, Healy argued that\nMilliman’s inaccurate consumer reports violated the Fair\nCredit Reporting Act’s requirement at 15 U.S.C. § 1681e(b)\nthat consumer reporting agencies adopt reasonable\nprocedures that ensure the maximum possible accuracy of\nreported information.\n At first, the district court certified an “inaccuracy class”\non this basis. Healy alleges that Milliman sold a report about\nconsumers in the inaccuracy class to a third party containing\ninformation which did not pertain to the individual who was\nthe subject of the report. To identify members of this class,\nHealy pointed to 311,226 reports that Milliman sent to\n\f HEALY V. MILLIMAN, INC. 7\n\n\ninsurance companies that (1) had a conflict between the\napplicant’s social security number and the social security\nnumber on the data source and (2) contained at least one\nprescription or medical record that had a yellow or red risk\nindicator flag.\n After class certification but before trial, Milliman filed a\nmotion for partial summary judgment, arguing that Healy\nneeded to demonstrate class-wide standing for the\ninaccuracy class. In Milliman’s view, Healy was unable to\ndo so. Although Healy had identified reports with\nmismatched social security numbers, Milliman argued that\nthere was no way to determine on a class-wide basis whether\na report was actually a “mixed file,” i.e., a report which\ncontains mismatched health information. Milliman\ncontended that a report with a mismatched social security\nnumber may not be a “mixed file” at all because the record\ncould, for example, include the primary insured’s social\nsecurity number but still feature the applicant’s health\ninformation.\n In response, Healy argued that evidence of class-wide\nstanding was not necessary at summary judgment. Rather,\nHealy merely needed to produce evidence that the named\nclass member—but not unnamed class members—could\nsatisfy the standing requirements. And, even if evidence of\nclass-wide standing was necessary at summary judgment,\nHealy argued that it was reasonable to infer that medical\nrecords associated with a different social security number\nthan an applicant’s contain inaccurate medical information.\n The district court granted Milliman’s motion for partial\nsummary judgment and dismissed the inaccuracy class. The\ndistrict court held that, under the Supreme Court’s decision\nin TransUnion LLC v. Ramirez, 594 U.S. 413 (2021), Healy\n\f8 HEALY V. MILLIMAN, INC.\n\n\nhad to present “at least some direct evidence of concrete\ninjury on a class-wide basis” at summary judgment in a suit\nfor money damages.. The district court concluded that Healy\nfailed to do so here. Though mismatched social security\nnumbers in unnamed class members’ reports were\n“indicative of a misattributed or erroneous health record,”\nthey were not “direct evidence of injury” because\n“mismatched identifiers do not necessarily demonstrate\nmisattributed health records.” For instance, the district court\nnoted that a mismatched social security number could\nmerely be the result of a “simple transposition” error.\n Healy moved for reconsideration, or, in the alternative,\nasked the district court to certify its order for interlocutory\nappeal. The district court denied the motion for\nreconsideration but certified its order for interlocutory\nappeal under 28 U.S.C. § 1292(b).\n II\n The district court had jurisdiction under 28 U.S.C.\n§ 1331 because Healy’s claim arises under the Federal\nCredit Reporting Act. We have jurisdiction under 28 U.S.C.\n§ 1292(b) because on April 9, 2024, the district court\ncertified its order granting partial summary judgment to\nMilliman for interlocutory appeal. Healy timely filed a\npetition for permission to appeal in this Court on April 19,\n2024, which we granted on May 24, 2024.\n We review the district court’s grant of summary\njudgment de novo, “including legal determinations\nregarding standing.” Ochoa v. Pub. Consulting Grp., Inc.,\n48 F.4th 1102, 1106 (9th Cir. 2022) (quoting Alaska Right to\nLife PAC v. Feldman, 504 F.3d 840, 848 (9th Cir. 2007)). In\ndoing so, we must determine “whether the district court\ncorrectly applied the relevant substantive law.” Stewart v.\n\f HEALY V. MILLIMAN, INC. 9\n\n\nThorpe Holding Co. Profit Sharing Plan, 207 F.3d 1143,\n1148 (9th Cir. 2000) (quoting Robi v. Reed, 173 F.3d 736,\n739 (9th Cir. 1999)).\n III\n Healy and Milliman dispute when unnamed members of\na certified class for money damages must demonstrate\nArticle III standing. We conclude that the logic of\nTransUnion LLC v. Ramirez, 594 U.S. 413 (2021) requires\nunnamed members of a certified class for money damages to\ndemonstrate standing at summary judgment.\n At the start of the life cycle of a class action before a\nclass is certified, the parties agree that only named class\nmembers—but not unnamed class members—must\ndemonstrate evidence of standing. To this end, we have\nconsistently held that Article III’s requirements are satisfied\nbefore a class is certified as long as at least one named\nplaintiff has standing. See In re Zappos.com, Inc., 888 F.3d\n1020, 1028 n.11 (9th Cir. 2018); Melendres v. Arpaio, 784\nF.3d 1254, 1262 (9th Cir. 2015). We have held that this is\nthe case whether the class action seeks money damages or\nequitable relief. See Casey v. Lewis, 4 F.3d 1516, 1519 (9th\nCir. 1993) (assessing whether at least one named plaintiff\nsatisfies the standing requirements in a suit for injunctive\nrelief); In re Zappos.com, 888 F.3d at 1028 n.11 (same for\nclass action seeking damages). The Supreme Court did not\ndisturb this approach in TransUnion given that it expressly\nrefused to address “whether every class member must\ndemonstrate standing before a court certifies a class.”\nTransUnion, 594 U.S. at 431 n.4.\n The parties also agree that, at the end of the life cycle of\na class action for money damages in particular, both named\nand unnamed class members must demonstrate standing no\n\f10 HEALY V. MILLIMAN, INC.\n\n\nlater than when they seek to recover individual damages.\nThis conclusion follows inescapably from the Supreme\nCourt’s instruction in TransUnion that “[e]very class\nmember must have Article III standing in order to recover\nindividual damages.” Id. at 431. Neither party argues that\nTransUnion overturned the Supreme Court’s prior direction\nthat only one named plaintiff needs to demonstrate standing\nin a class action seeking equitable relief, even at the final\nstage of a case when relief is awarded. See Baggett v. Bullitt,\n377 U.S. 360, 366 n.5 (1964); cf. Bates v. United Parcel\nServ., Inc., 511 F.3d 974, 985 (9th Cir. 2007) (en banc)\n(assessing “only whether at least one named plaintiff\nsatisfies the standing requirements for injunctive relief”). To\nthis end, the Court in TransUnion repeatedly emphasized\nthat the standing requirements for damages and equitable\nrelief are not necessarily the same. See TransUnion, 594\nU.S. at 436 (“[A] plaintiff’s standing to seek injunctive relief\ndoes not necessarily mean that the plaintiff has standing to\nseek retrospective damages.”); id. at 431 (“[S]tanding is not\ndispensed in gross; rather, plaintiffs must demonstrate\nstanding for each claim that they press and for each form of\nrelief that they seek (for example, injunctive relief and\ndamages).”).\n The disagreement at summary judgment in this case is a\nnarrow one: in a class action for damages, do unnamed class\nmembers need to demonstrate evidence of standing after\nclass certification but before individual damages are\nawarded? Healy argues that unnamed class members only\nneed to demonstrate standing at the time that individual\nmoney damages are awarded. Milliman instead argues that\nunnamed class members must demonstrate standing\nearlier—after class certification at summary judgment. We\nagree with the district court that TransUnion requires\n\f HEALY V. MILLIMAN, INC. 11\n\n\nunnamed class members to demonstrate evidence of\nstanding after class certification at summary judgment.\n To understand why, a brief recap of TransUnion is\nhelpful. There, a class of 8,185 individuals sued a credit\nreporting agency, TransUnion, under the Federal Credit\nReporting Act (the “Act”). TransUnion, 594 U.S. at 417.\nThe class argued that TransUnion violated the Act in two\nways. First, similar to the situation in this case, the class\nalleged that TransUnion violated § 1681e(b) of the Act when\nit failed “to use reasonable procedures to ensure the accuracy\nof their credit files.” Id. at 417-18. Within the class,\nTransUnion “provided misleading credit reports to third-\nparty businesses” for 1,853 of the class members. Id. at 417.\nBut “[t]he internal credit files of the other 6,332 class\nmembers were not provided to third-party businesses during\nthe relevant time period.” Id. Second, the class alleged that\ncertain TransUnion mailings had formatting defects which\nviolated the Act. Id. at 418. On appeal, we determined that\nall 8,185 class members had standing for both sets of their\nclaims and approved a class damages award of about $40\nmillion. Id.\n The Supreme Court reversed. First, under the § 1681e(b)\nreasonable procedures claim, the Court held that only the\n1,853 class members whose reports were sent to third-party\nbusinesses “demonstrated concrete reputational harm and\nthus have Article III standing.” Id. at 417. Second, under\nthe class’s procedural defects claims, the Court determined\nthat only the named plaintiff, Ramirez, had standing because\nhe was the only class member who “demonstrated that\n[TransUnion’s] alleged formatting errors caused [him] any\nconcrete harm.” Id. at 418.\n\f12 HEALY V. MILLIMAN, INC.\n\n\n TransUnion articulated several principles underlying\nthis holding which likewise guide our decision here. For\none, the Court made clear that named and unnamed class\nmembers must demonstrate standing at trial. As the Court\nwrote, “in a case . . . that proceeds to trial, the specific facts\nset forth by the plaintiff to support standing ‘must be\nsupported adequately by the evidence adduced at trial.’” Id.\nat 431 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 561\n(1992)). Healy suggests this language only applies to the\nnamed plaintiff in a class action rather than unnamed class\nmembers, but the Court’s standing analysis in TransUnion\nindicates otherwise.\n In the context of the TransUnion class’s § 1681e(b)\nchallenge, the Court determined that “[t]he plaintiffs had the\nburden to prove at trial that their reports were actually sent\nto third-party businesses.” Id. at 439 (emphasis added). The\nCourt, therefore, examined the trial record for evidence of\ninjury to not just the named plaintiff, but also unnamed class\nmembers. The Court determined that “the 1,853 class\nmembers (including the named plaintiff Ramirez) whose\nreports were disseminated to third-party businesses” had\n“suffered a concrete harm” that sufficed for standing. Id. at\n432. But the Court also examined the trial record to\ndetermine whether the 6,332 class members whose reports\nwere not disseminated to third-party businesses—all\nunnamed plaintiffs—had standing. On this point, the Court\nwrote that “the plaintiffs did not present any evidence\nthat . . . 6,332 [of the unnamed] class members even knew\nthat there” was inaccurate information in their credit files.\nId. at 438 (emphasis omitted). In fact, “[i]f those plaintiffs\nprevailed in this case, many of them would first learn that\nthey were ‘injured’ when they received a check\ncompensating them for their supposed ‘injury.’” Id.\n\f HEALY V. MILLIMAN, INC. 13\n\n\n So too with the class’s procedural claims. Although the\nCourt acknowledged that the named class member, Ramirez,\nhad presented evidence at trial demonstrating that the format\nof TransUnion’s mailings caused him harm, the Court\nconcluded that this was not the case for any of the unnamed\nclass members. Id. at 440. Indeed, “[t]he plaintiffs\npresented no evidence that, other than Ramirez, a single\nother class member so much as opened the dual mailings,\nnor that they were confused, distressed, or relied on the\ninformation in any way.” Id. (citation modified). Thus, the\nCourt concluded that only the named class member,\nRamirez, had standing for the class’s procedural claims. Id.\n Healy contends that the standing inquiry for unnamed\nclass members must wait until the final stage of a damages\naction. But there is no suggestion that the Supreme Court\nreferred to any information uncovered during an\nindividualized claims process in concluding that unnamed\nclass members lacked standing for either claim. Rather, the\nCourt concluded that named and unnamed class members\nalike had a burden to demonstrate standing at trial.\n We conclude that TransUnion also compels unnamed\nclass members to demonstrate evidence of standing here—\nafter class certification but prior to trial at summary\njudgment. This follows directly from TransUnion’s\ninstruction that plaintiffs “must demonstrate standing ‘with\nthe manner and degree of evidence required at the successive\nstages of the litigation.’” Id. at 431 (quoting Lujan, 504 U.S.\nat 561). Drawing from our typical summary judgment\nstandard, though unnamed class members “need not\nestablish that they in fact have standing,” they would at least\nhave to demonstrate “that there is a genuine question of\nmaterial fact as to the standing elements.” Cent. Delta Water\nAgency v. United States, 306 F.3d 938, 947 (9th Cir. 2002).\n\f14 HEALY V. MILLIMAN, INC.\n\n\nThis approach is consistent with TransUnion’s express\nclarification that its holding did not “address the distinct\nquestion whether every class member must demonstrate\nstanding before a court certifies a class,” in contrast to the\npost-certification summary judgment stage at issue here.\n594 U.S. at 431 n.4.\n Healy raises essentially two arguments in response, one\nfocused on TransUnion and one focused on our own\ncaselaw. First, Healy argues that TransUnion only requires\nunnamed class members to demonstrate standing at the final\nstage of a damages action because the case only reached the\nSupreme Court after the district court had ordered the\ndefendant to pay unnamed class members individual\ndamages. On this point, Healy similarly points to the Court’s\nstatement that “[e]very class member must have Article III\nstanding in order to recover individual damages.”\nTransUnion, 594 U.S. at 431. But it does not follow that the\nCourt therefore meant that unnamed class members only\nneed to demonstrate standing at the time that they recover\nindividual damages. Instead, TransUnion made clear that\n“in a case like this that proceeds to trial, the specific facts set\nforth by the plaintiff to support standing ‘must be supported\nadequately by the evidence adduced at trial.’” Id. (quoting\nLujan, 504 U.S. at 561).\n Second, Healy argues that requiring unnamed class\nmembers to demonstrate evidence of standing at summary\njudgment in a suit for money damages would run afoul of\nour own class action caselaw. We disagree. For one, nearly\nall of the cases Healy cites predate TransUnion and therefore\nhave since been abrogated to the extent they would have\npermitted unnamed class members to go without\ndemonstrating standing at trial or in any later claims process.\nSee, e.g., Ramirez v. TransUnion, LLC, 951 F.3d 1008,\n\f HEALY V. MILLIMAN, INC. 15\n\n\n1022-23 (9th Cir. 2020); Bates, 511 F.3d at 985; Casey, 4\nF.3d at 1519; Stearns v. Ticketmaster Corp., 655 F.3d 1013,\n1021 (9th Cir. 2011); In re Zappos.com, Inc., 888 F.3d at\n1028 n.11; Magadia v. Wal-Mart Assocs., Inc., 999 F.3d\n668, 680 (9th Cir. 2021); Ruiz Torres v. Mercer Canyons\nInc., 835 F.3d 1125, 1137 n.6 (9th Cir. 2016); Gutierrez v.\nWells Fargo Bank, N.A., 704 F.3d 712, 728 (9th Cir. 2012);\nBriseno v. ConAgra Foods, Inc., 844 F.3d 1121, 1131-32\n(9th Cir. 2017). The one case Healy cites that postdates\nTransUnion, DZ Reserve v. Meta Platforms, Inc., concerned\nin relevant part whether a class had “Article III standing to\nseek injunctive relief,” not the damages sought by the class\nat issue here. 96 F.4th 1223, 1239 (9th Cir. 2024). Likewise,\nDZ Reserve addressed the standing inquiry at the time of\nclass certification, not afterwards at summary judgment. Id.\nat 1231.\n Contrary to Healy’s contention, our holding comports\nwith this circuit’s limited discussion of TransUnion to date.\nAs we wrote in In re Apple Inc. Device Performance\nLitigation, “[h]ad the parties brought the case to trial, as in\nTransUnion, plaintiffs’ allegation of classwide injury would\nhave been either proven or disproven.” 50 F.4th 769, 782\n(9th Cir. 2022) (citation modified). But because the case\nsettled “prior to class certification or summary judgment,”\nmere allegations of classwide injury were sufficient without\nindividualized proof. Id. (emphasis added).\n In light of TransUnion, therefore, we conclude that the\ndistrict court correctly determined that both named and\nunnamed members of Healy’s inaccuracy class had to\nproduce evidence of standing at summary judgment.\n\f16 HEALY V. MILLIMAN, INC.\n\n\n IV\n We part ways from the district court, however, in its\napplication of the summary judgment standard to this case.\nAs noted above, “at the summary judgment stage the\nplaintiffs need not establish that they in fact have standing,\nbut only that there is a genuine question of material fact as\nto the standing elements.” Cent. Delta Water Agency, 306\nF.3d at 947. To survive a motion for summary judgment,\ntherefore, a plaintiff only must show that a rational trier of\nfact “could” find for them at trial. See Matsushita Elec.\nIndus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587\n(1986). In the context of Healy’s § 1681e(b) claim in\nparticular, this Court has held that a consumer at summary\njudgment must “present evidence tending to show that a\ncredit reporting agency prepared a report containing\ninaccurate information.” Guimond v. Trans Union Credit\nInfo. Co., 45 F.3d 1329, 1333 (9th Cir. 1995).\n In doing so, plaintiffs can use either direct evidence or\ncircumstantial evidence. See, e.g., Keyser v. Sacramento\nCity Unified Sch. Dist., 265 F.3d 741, 751-52 (9th Cir. 2001)\n(recognizing cases where “circumstantial evidence created a\ngenuine issue of material fact” at summary judgment);\nDesert Palace, Inc. v. Costa, 539 U.S. 90, 99 (2003)\n(describing “conventional rule of civil litigation” that\nplaintiffs may “us[e] direct or circumstantial evidence” to\nprove their case). Direct evidence “proves [a]\nfact . . . without inference or presumption.” Coghlan v. Am.\nSeafoods Co. LLC, 413 F.3d 1090, 1095 (9th Cir. 2005)\n(citation modified). Circumstantial evidence “tend[s] to\nshow” a fact by way of “infer[ences].” Treasure Val. Potato\nBargaining Ass’n v. Ore-Ida Foods, Inc., 497 F.2d 203, 208\n(9th Cir. 1974).\n\f HEALY V. MILLIMAN, INC. 17\n\n\n The district court contravened this settled law of\nsummary judgment in two ways. First, the district court\nconcluded that Healy had the burden to present “direct\nevidence of concrete injury on a class-wide basis” at\nsummary judgment. But this is incorrect as a matter of law\ngiven that either direct or circumstantial evidence may\nsuffice at summary judgment. See Keyser, 265 F.3d at 751-\n52. At summary judgment, Healy identified 311,226 of\nMilliman’s consumer reports issued to insurance companies\nthat included (1) a social security number not belonging to\nthe applicant and (2) a medium or high risk indicator within\nthat report. Although the district court acknowledged that\nthis evidence was “indicative of a misattributed or erroneous\nhealth record,” the court concluded that this was not enough\nat summary judgment because it was not “direct evidence of\ninjury.” But evidence which is “indicative” of a\nmisattributed or erroneous health record is the sort of\ncircumstantial evidence which has long been permissible at\nsummary judgment. See, e.g., Guimond, 45 F.3d at 1333\n(requiring “evidence tending to show that a credit reporting\nagency prepared a report containing inaccurate information”\non summary judgment in a § 1681e(b) case (emphasis\nadded)).\n Second, and relatedly, the district court imposed an\nunduly high burden on Healy at summary judgment. In the\ndistrict court’s view, the key problem was that mismatched\nsocial security numbers “do not necessarily demonstrate\nmisattributed health records.” (Emphasis added). However,\nthis observation overstates the burden placed on a party\nopposing summary judgment. Healy did not need to show\nthat a jury “necessarily” would find that mismatched social\nsecurity numbers demonstrate misattributed health records.\nRather, Healy merely needed to produce enough evidence at\n\f18 HEALY V. MILLIMAN, INC.\n\n\nsummary judgment that a rational trier of fact “could”\nreasonably infer that this was the case. Matsushita, 475 U.S.\nat 587. The district court therefore erred in applying an\nimproperly narrow standard at summary judgment.\n V\n In sum, we hold that TransUnion requires named and\nunnamed members of a certified class for money damages to\ndemonstrate that there is a genuine dispute of material fact\nover standing at summary judgment. We also hold that the\ndistrict court misapplied the law of summary judgment in\nassessing whether the class here had done so. We therefore\nreverse the district court’s partial grant of summary\njudgment and remand for the court to consider whether\nHealy has presented enough circumstantial evidence that a\nrational trier of fact could reasonably infer that there was\nclass-wide standing. We express no view on whether the\ncircumstantial evidence does create a genuine dispute of\nmaterial fact in this regard.\n REVERSED AND REMANDED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11239091/", "author_raw": "S.R. THOMAS, Circuit Judge:"}]}	SIDNEY R THOMAS	DANIEL A BRESS	SALVADOR MENDOZA JR	1		{}	2	0	0	2	null	https://www.courtlistener.com/api/rest/v4/clusters/10772506/	Published	2	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,773,790	United States v. Gomez	2026-01-13	23-435	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Mary H. Murguia, Chief Judge, and Ronald M. Gould, Milan D. Smith, Jr., Jacqueline H. Nguyen, Ryan D. Nelson, Eric D. Miller, Daniel P. Collins, Lucy H. Koh, Jennifer Sung, Holly A. Thomas, and Ana de Alba, Circuit Judges.", "parties": "", "opinions": [{"type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\nUNITED STATES OF AMERICA, No. 23-435\n D.C. No.\n Plaintiff - Appellee,\n 8:20-cr-00171-\n JVS-FWS-5\n v.\n\nJESUS RAMIRO GOMEZ, AKA\nHunter, OPINION\n\n Defendant - Appellant.\n\n Appeal from the United States District Court\n for the Central District of California\n James V. Selna, Senior District Judge, Presiding\n\n Argued and Submitted En Banc September 9, 2025\n San Francisco, California\n\n Filed January 13, 2026\n\n Before: Mary H. Murguia, Chief Judge, and Ronald M.\nGould, Milan D. Smith, Jr., Jacqueline H. Nguyen, Ryan D.\n Nelson, Eric D. Miller, Daniel P. Collins, Lucy H. Koh,\nJennifer Sung, Holly A. Thomas, and Ana de Alba, Circuit\n Judges.\n\n Opinion by Judge H.A. Thomas;\n Concurrence by Judge Collins\n\n2 USA V. GOMEZ\n\n\n SUMMARY\n\n\n Criminal Law\n\n The en banc court affirmed the district court’s judgment\nin a case in which the district court found that Jesus Ramiro\nGomez, who pleaded guilty to distribution of\nmethamphetamine, was subject to a career offender\nenhancement under U.S.S.G. § 4B1.1(a) because his prior\nconviction for assault with a deadly weapon under California\nPenal Code § 245(a)(1) was a crime of violence—a\nclassification Gomez did not challenge until his opening\nbrief on appeal.\n The government argued that Gomez’s unpreserved\nchallenge should be reviewed only for plain error under\nFederal Rule of Criminal Procedure 52. In a long series of\ndecisions, this court previously held that where the appeal\npresents a pure question of law and there is no prejudice to\nthe opposing party, this court may review de novo rather\nthan for plain error. Applying this exception, a three-judge\npanel reviewed de novo whether a conviction under Section\n245(a)(1) constitutes a crime of violence and concluded that\nit did not.\n The en banc court overruled the precedent recognizing a\n“pure question of law” exception to Rule 52 and held that\nunpreserved claims of legal error may be reviewed only for\nplain error.\n\n\n\n\n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\n USA V. GOMEZ 3\n\n\n The en banc court further held that, in light of the\nSupreme Court’s decision in Borden v. United States, 593\nU.S. 420 (2021), a conviction under California Penal Code\n§ 245(a)(1) does not qualify as a crime of violence, given\nthat Section 245(a)(1) does not require the intentional\napplication of force against another. The en banc court\ntherefore overruled this court’s pre-Borden decisions\nholding that Section 245(a)(1) is a crime of violence under\nSection 4B1.1(a) and held that the district court erred when\nit ruled to the contrary in Gomez’s case.\n But the en banc court concluded that the district court’s\nerror was not plain. In so concluding, the en banc court\nnoted that in the years since Borden, this court continued to\nrely upon pre-Borden decisions to reject arguments that\nSection 245(a)(1) is not a crime of violence, and that the\ndecision the en banc court reaches today is a close and\ndifficult one. The en banc court therefore affirmed the\ndistrict court’s judgment.\n Judge Collins concurred in part and concurred in the\njudgment. He agreed with the court’s decision to overrule\nits precedent recognizing unwritten exceptions to the plain\nerror standards set forth in Federal Rule of Criminal\nProcedure 52(b). He also agreed with the majority’s\nultimate judgment affirming Gomez’s sentence, but he\nreached that conclusion by a different route. He wrote that\nthe court should adhere to its precedent holding that a\nconviction for assault with a deadly weapon under California\nPenal Code § 245(a)(1) qualifies as a “crime of violence,”\nbecause that caselaw is not inconsistent with the Supreme\nCourt’s decision in Borden. Consequently, he would hold\nthat the district court did not err at all, and not merely that it\ndid not commit a plain error.\n\n4 USA V. GOMEZ\n\n\n COUNSEL\n\nAlexander P. Robbins (argued), Assistant United States\nAttorney, Deputy Chief; Bram M. Alden and David R.\nFriedman, Assistant United States Attorneys, Chiefs;\nCriminal Appeals Section; Mack E. Jenkins, Assistant\nUnited States Attorney, Chief, Criminal Division; E. Martin\nEstrada, United States Attorney; Office of the United States\nAttorney, United States Department of Justice, Los Angeles,\nCalifornia; Robert J. Keenan, Assistant United States\nAttorney, Santa Ana Section, Office of the United States\nAttorney, United States Department of Justice, Santa Ana,\nCalifornia; for Plaintiff-Appellee.\nTodd W. Burns (argued), Burns & Cohan Attorneys at Law,\nSan Diego, California, for Defendant-Appellant.\nKara Hartzler, Appellate Attorney; Vincent Brunkow, Chief\nAppellate Attorney; Kasha Castillo, Executive Director;\nFederal Defenders of San Diego Inc., San Diego, California;\nFidel Cassino-DuCloux, Federal Public Defender, Office of\nthe Federal Public Defender, Portland, Oregon; Colin\nFieman, Federal Public Defender, Office of the Federal\nPublic Defender, Seattle, Washington; Andrea George,\nExecutive Director, Federal Defenders of Eastern\nWashington and Idaho, Spokane, Washington; Rachel\nJulagay, Executive Director, Federal Defenders of Montana\nInc., Great Falls, Montana; Salina M. Kanai, Federal Public\nDefender, Office of the Federal Public Defender, Honolulu,\nHawaii; Jodi Linker, Federal Public Defender, Office of the\nFederal Public Defender, San Francisco, California; Leilani\nV. Lujan, Federal Public Defender, Office of the Federal\nPublic Defender, Mongmong, Guam; Jamie McGrady,\nFederal Public Defender, Office of the Federal Public\nDefender, Anchorage, Alaska; Cuauhtemoc Ortega, Federal\n\n USA V. GOMEZ 5\n\n\nPublic Defender, Office of the Federal Public Defender, Los\nAngeles, California; Nicole Owens, Executive Director,\nFederal Defender Services of Idaho, Boise, Idaho; Jon M.\nSands, Federal Public Defender, Office of the Federal Public\nDefender, Phoenix, Arizona; Rene L. Valladares, Federal\nPublic Defender, Office of the Federal Public Defender, Las\nVegas, Nevada; Heather Williams, Federal Public Defender,\nOffice of the Federal Public Defender, Sacramento,\nCalifornia; for Amici Curiae Ninth Circuit Federal Public\nand Community Defender Offices.\n\n\n\n OPINION\n\nH.A. THOMAS, Circuit Judge:\n\n Jesus Ramiro Gomez pleaded guilty to distribution of\nmethamphetamine. At sentencing, the district court found\nthat he was subject to a career offender enhancement and\nsentenced him to 188 months’ imprisonment. In applying the\nenhancement, the district court determined that Gomez’s\nprior conviction for assault with a deadly weapon under\nCalifornia Penal Code § 245(a)(1) was a crime of violence—\na classification Gomez did not challenge until his opening\nbrief on appeal.\n The government argued that Gomez’s unpreserved\nchallenge should be reviewed only for plain error under\nFederal Rule of Criminal Procedure 52. In a long series of\ndecisions, however, we had previously held that “where the\nappeal presents a pure question of law and there is no\nprejudice to the opposing party,” we may review de novo\nrather than for plain error. United States v. Gonzalez-\n\n6 USA V. GOMEZ\n\n\nAparicio, 663 F.3d 419, 426 (9th Cir. 2011). Applying this\nexception, a three-judge panel of our court reviewed de novo\nwhether a conviction under Section 245(a)(1) constitutes a\ncrime of violence and concluded that it did not. See United\nStates v. Gomez, 115 F.4th 987, 999 (9th Cir. 2024), vacated\nand reh’g en banc granted, 133 F.4th 1083 (9th Cir. 2025).\n We have jurisdiction over this appeal under 28 U.S.C.\n§ 1291 and 18 U.S.C. § 3742(a). Sitting en banc, we now\noverrule our precedent recognizing a “pure question of law”\nexception to Rule 52 and hold that unpreserved claims of\nlegal error may be reviewed only for plain error. We further\nhold that, in light of the Supreme Court’s decision in Borden\nv. United States, 593 U.S. 420 (2021), a conviction under\nCalifornia Penal Code § 245(a)(1) does not qualify as a\ncrime of violence. But because the district court’s error in\nconcluding otherwise was not plain, we affirm the district\ncourt’s judgment.\n I.\n Pursuant to the Sentencing Reform Act and the United\nStates Sentencing Guidelines (“U.S.S.G.”), the “career\noffender” enhancement applies when a defendant is\nsentenced for a controlled substance offense or a “crime of\nviolence” and has two prior such convictions. U.S.S.G.\n§ 4B1.1(a) (U.S. Sent’g Comm’n 2018); see also 28 U.S.C.\n§ 994(h) (directing the Sentencing Commission to include\nsuch a provision in the Guidelines). For purposes of this\nenhancement, a crime of violence is defined in part as “any\noffense under federal or state law, punishable by\nimprisonment for a term exceeding one year, that . . . has as\nan element the use, attempted use, or threatened use of\nphysical force against the person of another.” U.S.S.G.\n§ 4B1.2(a). This portion of the definition is known as the\n\n USA V. GOMEZ 7\n\n\n“elements clause.” United States v. Davis, 588 U.S. 445,\n451–52 (2019) (referring to the corresponding clause of\nmultiple similar statutory definitions of violent crimes as the\n“elements clause”).\n Courts employ the “categorical approach” to determine\nwhether a conviction constitutes a qualifying offense under\nSection 4B1.2(a). See United States v. Prigan, 8 F.4th 1115,\n1118–19 (9th Cir. 2021); see also Borden, 593 U.S. at 424\n(plurality opinion) (applying categorical approach to the\ncomparable elements clause in § 924(e)(2)(B)(i)); Taylor v.\nUnited States, 495 U.S. 575, 602 (1990) (describing\ncategorical approach). Under this approach, a court must\nexamine whether a conviction “fits within the scope of a\ngenerically defined crime, such as . . . a ‘crime of violence.’”\nUnited States v. Ellsworth, 456 F.3d 1146, 1152 (9th Cir.\n2006); see also Borden, 593 U.S. at 424 (plurality opinion)\n(“The focus is . . . on whether the elements of the statute of\nconviction meet the federal standard.”). When applying the\ncategorical approach, “the facts of a given case are\nirrelevant.” Borden, 593 U.S. at 424 (plurality opinion).\nInstead, courts focus only on “whether the elements of the\nstatute of conviction meet the federal” crime of violence\ndefinition. Id. If, when conducting this examination, a court\ndetermines that the statute of conviction makes unlawful any\nconduct less culpable than that required to constitute a crime\nof violence, then there is “not a categorical match.” United\nStates v. Begay, 33 F.4th 1081, 1091 (9th Cir. 2022) (en\nbanc).\n In 2022, Gomez pleaded guilty to distribution of\nmethamphetamine. See 21 U.S.C. § 841(a)(1),\n(b)(1)(A)(viii). At sentencing, the district court applied a\ncareer offender enhancement because, in addition to\nGomez’s latest conviction for distribution of\n\n8 USA V. GOMEZ\n\n\nmethamphetamine and a previous conviction for possession\nof cocaine for sale, he had also previously been convicted of\nassault with a deadly weapon under California Penal Code\n§ 245(a)(1), which the court determined was a “crime of\nviolence” under Section 4B1.1(a). The application of the\ncareer offender enhancement increased Gomez’s adjusted\noffense level from 27 to 34 1 and his advisory sentencing\nrange from 130–162 to 262–327 months’ imprisonment. The\ndistrict court sentenced Gomez to 188 months’\nimprisonment.\n Gomez did not object to the district court’s finding that\nhis Section 245(a)(1) conviction was a crime of violence. He\nraised this challenge for the first time on appeal. Reviewing\nthat challenge, the three-judge panel vacated Gomez’s\nsentence and remanded the case to the district court for\nresentencing. See Gomez, 115 F.4th at 999. Applying our\n“pure question of law” exception to plain error review, the\npanel exercised its discretion to review Gomez’s\nunpreserved legal challenge de novo. See id. at 990–92; see\nalso United States v. Eckford, 77 F.4th 1228, 1231 (9th Cir.\n2023). The panel held that a Section 245(a)(1) conviction is\nnot a crime of violence and thus could not serve as a\npredicate offense for the career offender enhancement.\nGomez, 115 F.4th at 992–99. We vacated that decision after\na majority of the nonrecused active judges on our court voted\nto rehear this matter en banc. See Gomez, 133 F.4th at 1083.\n\n\n\n\n1\n The district court applied a three-level downward adjustment to the\nbase offense level for Gomez accepting responsibility. See U.S.S.G.\n§ 3E1.1(a), (b).\n\n USA V. GOMEZ 9\n\n\n II.\n We first address the applicable standard of review for an\nunpreserved claim of error.\n Under Federal Rule of Criminal Procedure 52(a), “[a]ny\nerror, defect, irregularity, or variance that does not affect\nsubstantial rights must be disregarded.” Fed. R. Crim. P.\n52(a). But under Rule 52(b), “[a] plain error that affects\nsubstantial rights may be considered even though it was not\nbrought to the [district] court’s attention.” Fed. R. Crim. P.\n52(b).\n The import of Rule 52 could hardly be clearer: if an error\nis not plain or does not affect substantial rights, it must be\nignored if it was not raised below. Although this concept has\ngone more or less unchanged since the Federal Rules of\nCriminal Procedure were put into place in 1944, beginning\nin the late 1970s, our court created an exception to plain error\nreview. In 1978, relying on several decisions in non-criminal\ncases, we held in United States v. Patrin that although “[a]s\na general rule, ‘a federal appellate court does not consider an\nissue not passed upon below,’” there nevertheless existed a\n“narrow exception to the general rule” for situations where\n“the issue conceded or neglected in the trial court is purely\none of law and . . . does not affect or rely upon the factual\nrecord developed by the parties.” 575 F.2d 708, 712 (9th Cir.\n1978) (quoting Singleton v. Wulff, 428 U.S. 106, 120\n(1976)). Our decision in Patrin did not mention Rule 52(b).\nSee generally id.\n A series of conforming decisions followed. See, e.g.,\nGuam v. Okada, 694 F.2d 565, 570 n.8 (9th Cir. 1982),\nopinion amended on denial of reh’g, 715 F.2d 1347 (9th Cir.\n1983); United States v. Whitten, 706 F.2d 1000, 1012 (9th\nCir. 1983); United States v. Rubalcaba, 811 F.2d 491, 493\n\n10 USA V. GOMEZ\n\n\n(9th Cir. 1987); United States v. Carlson, 900 F.2d 1346,\n1349 (9th Cir. 1990). By the early 1990s, we had clearly\ndelineated a category of criminal appeals presenting “pure\nquestions of law” to which we could apply de novo review,\nwhich existed alongside those to which plain error applied.\nFor instance, in United States v. Flores-Payon, we held that\nour “narrow exceptions to the general rule against review on\nappeal of issues not raised below” included situations where\n“the issue presented is purely one of law and the opposing\nparty will suffer no prejudice as a result of the failure to raise\nthe issue in the trial court,” and observed that “[f]urther\nexception may be made when plain error has occurred and\nan injustice might otherwise result.” 942 F.2d 556, 558 (9th\nCir. 1991) (first citing Carlson, 900 F.2d at 1349; United\nStates v. Smith, 905 F.2d 1296, 1302 (9th Cir. 1990); then\nciting Whitten, 706 F.2d at 1012; Fed. R. Crim. P. 52).\n By the early aughts, however, the Supreme Court had\nmade clear that appellate courts have limited authority to\nreview unpreserved legal issues. First, in Jones v. United\nStates, the Court rejected the argument that the Federal\nDeath Penalty Act of 1994 created an exception to Rule\n52(b)’s plain error review. See 527 U.S. 373, 388–89 (1999).\nThen, in United States v. Vonn, the Court held that “a\ndefendant who lets Rule 11 error pass without objection in\nthe trial court . . . has the burden to satisfy the plain-error\nrule,” despite the expression of a harmless error standard in\nRule 11(h). 535 U.S. 55, 58–59 (2002). The Court\nemphasized that to hold otherwise would “amount to finding\na partial repeal of Rule 52(b) by implication”—a\n“disfavored” result. Id. at 65.\n In 2009, the Court further “cautioned that ‘[a]ny\nunwarranted extension’ of the authority granted by Rule\n52(b) would disturb the careful balance it strikes between\n\n USA V. GOMEZ 11\n\n\njudicial efficiency and the redress of injustice, and that the\ncreation of an unjustified exception to the Rule would be\n‘[e]ven less appropriate.’” Puckett v. United States, 556 U.S.\n129, 135–36 (2009) (alterations in original) (citation\nomitted) (first quoting United States v. Young, 470 U.S. 1,\n15 (1985); and then quoting Johnson v. United States, 520\nU.S. 461, 466 (1997)). Holding that “a forfeited claim that\nthe Government has violated the terms of a plea agreement\nis subject to the plain-error standard of review,” the Court\nnoted that the “real question in this case is not whether plain-\nerror review applies . . . , but rather what conceivable reason\nexists for disregarding its evident application.” Id. at 131,\n136 (emphasis in original). The Court underlined that while\nthe breach of a plea agreement was “undoubtedly a violation\nof the defendant’s rights, . . . the defendant has the\nopportunity to seek vindication of those rights in district\ncourt; if he fails to do so, Rule 52(b) as clearly sets forth the\nconsequences for that forfeiture as it does for all others.” Id.\nat 136 (citation omitted).\n After Puckett, it should arguably have been beyond\ndebate that our application of a “pure question of law”\nexception to plain error review could not survive. What, after\nall, could “all others” have referred to if not the remainder of\nforfeited errors that a defendant might raise on appeal?\nIndeed, as at least one of our colleagues has observed, “our\nsister circuits routinely review pure questions of law for\nplain error.”2 United States v. Zhou, 838 F.3d 1007, 1016\n(9th Cir. 2016) (Graber, J., concurring).\n\n\n2\n See, e.g., United States v. Bennett, 469 F.3d 46, 50 (1st Cir. 2006);\nUnited States v. Gamez, 577 F.3d 394, 397 (2d Cir. 2009) (per curiam);\nUnited States v. Henderson, 64 F.4th 111, 116–17 (3d Cir. 2023); United\nStates v. Carthorne, 726 F.3d 503, 509 (4th Cir. 2013); United States v.\n\n12 USA V. GOMEZ\n\n\n To be sure, our application of a “pure question of law”\nexception to Rule 52(b) has not gone unquestioned. See, e.g.,\nBegay, 33 F.4th at 1090 n.3 (“The government did not ask\nus to revisit our precedent allowing the application of de\nnovo review to pure questions of law where we are satisfied\nthe government will not be prejudiced. And because the\noutcome is the same regardless of what standard we apply,\nwe need not consider whether that precedent can be\nreconciled with the Supreme Court’s cases interpreting\nFederal Rule of Criminal Procedure 52(b).” (citations\nomitted)); United States v. Castillo, 69 F.4th 648, 653 (9th\nCir. 2023) (“[T]he assumption that de novo review applies\nto purely legal questions that have not been argued below\nhas been called into question both by our court and by the\nSupreme Court.”). Nevertheless, we have as a court\ncontinued to reaffirm and reapply the principle that we “are\nnot limited to [plain error] review when we are presented\nwith [1] a question that is purely one of law and [2] where\nthe opposing party will suffer no prejudice as a result of the\nfailure to raise the issue in the trial court.” Eckford, 77 F.4th\nat 1231 (alterations in original) (quoting United States v.\nMcAdory, 935 F.3d 838, 841–42 (9th Cir. 2019)); see also,\ne.g., United States v. Garcia-Lopez, 903 F.3d 887, 892 (9th\nCir. 2018).\n The time has come for us to right our course. We\n“creat[ed] out of whole cloth” a pure question of law\n\nChavez-Hernandez, 671 F.3d 494, 497 (5th Cir. 2012); United States v.\nWoodruff, 735 F.3d 445, 448 (6th Cir. 2013); United States v. Jaimes-\nJaimes, 406 F.3d 845, 849 (7th Cir. 2005); United States v. Ellis, 127\nF.4th 1122, 1126 (8th Cir. 2025); United States v. Gonzalez-Jaquez, 566\nF.3d 1250, 1251 (10th Cir. 2009); United States v. Laines, 69 F.4th 1221,\n1233 (11th Cir. 2023); United States v. Williams, 358 F.3d 956, 966\n(D.C. Cir. 2004).\n\n USA V. GOMEZ 13\n\n\nexception to Rule 52(b)—an exception that is incompatible\nwith Supreme Court precedent and the plain language of the\nRule. See Johnson, 520 U.S. at 466. We now overrule our\nprecedent establishing such an exception. Because Gomez\ndid not object in the district court to the classification of his\nSection 245(a)(1) conviction as a crime of violence, his\nclaim is reviewable only for plain error. See Fed. R. Crim. P.\n52(b). To prevail in this appeal, Gomez must therefore\ndemonstrate that the district court (1) committed an error\n(2) that is plain and that (3) affects his substantial rights. See\nGreer v. United States, 593 U.S. 503, 507–08 (2021). If\nthose three requirements are satisfied, we have discretion to\nremedy the error if it “seriously affect[s] the fairness,\nintegrity or public reputation of judicial proceedings.”\nPuckett, 556 U.S. at 135 (alteration in original) (quoting\nUnited States v. Olano, 507 U.S. 725, 736 (1993)).\n III.\n Applying the standard set forth above, we turn next to\nwhether the district court erred in determining that assault\nwith a deadly weapon under California Penal Code\n§ 245(a)(1) is a crime of violence.\n A.\n We have observed that, under the categorical approach,\nthe least culpable act criminalized under the statute of\nconviction must involve the level of force described in the\nfederal crime of violence definition. See Begay, 33 F.4th at\n1091. If the statute criminalizes any conduct less culpable\nthan the federal definition’s requirement, “the statute is not\na categorical match,” and a conviction under that statute does\nnot qualify as a crime of violence. Id. Gomez argues that\nassault with a deadly weapon under Section 245(a)(1) does\nnot match the “elements clause” of U.S.S.G. § 4B1.2(a)(1)\n\n14 USA V. GOMEZ\n\n\nbecause Section 245(a)(1) criminalizes a lesser mens rea\nthan the federal definition. We agree.\n In Borden, the Supreme Court determined that a\ndefendant’s conviction for reckless aggravated assault under\nTennessee law did not satisfy the elements clause because\nthat clause requires the statute of conviction to have a mens\nrea greater than recklessness. See 593 U.S. at 445 (plurality\nopinion). The plurality concluded that the mens rea\nrequirement stems from the language in the elements clause\nrequiring that force be used “against the person of another.”\nId. at 429. The plurality relied on the Model Penal Code’s\nmens rea definitions, noting that a person acts recklessly\nwhen he “consciously disregards a substantial and\nunjustifiable risk.” Id. at 427 (quoting Model Penal Code\n§ 2.02(2)(c) (1985)). The Model Penal Code defines the\nmost culpable mens rea—purpose—as when a person\n“‘consciously desires’ a particular result.” Id. at 426 (quoting\nUnited States v. Bailey, 444 U.S. 394, 404 (1980)). The\nplurality concluded that “[t]he phrase ‘against another,’\nwhen modifying the ‘use of force,’ demands that the\nperpetrator direct his action at, or target, another individual.”\nId. at 429. Because “[r]eckless conduct is not aimed in that\nprescribed manner,” it does not satisfy the elements clause.\nId.\n Justice Thomas, concurring in the judgment, agreed that\nreckless crimes do not satisfy the elements clause. See id. at\n446 (Thomas, J., concurring). His analysis, however, relied\non a different phrase in the statute: “use of physical force.”\nId. In Justice Thomas’s view, the use of physical force “has\na well-understood meaning applying only to intentional acts\ndesigned to cause harm.” Id. (quoting Voisine v. United\nStates, 579 U.S. 686, 713 (2016) (Thomas, J., dissenting)).\nBecause the reckless aggravated assault statute at issue\n\n USA V. GOMEZ 15\n\n\n“could be violated through mere recklessness,” it did not\nsatisfy the elements clause. Id.\n As we held in United States v. Davis, “when a majority\nof the Justices agree upon a single underlying rationale and\none opinion can reasonably be described as a logical subset\nof the other,” the opinion is binding. 825 F.3d 1014, 1021–\n22 (9th Cir. 2016) (en banc); see also Marks v. United States,\n430 U.S. 188, 193 (1977) (explaining that the holding of the\nCourt in a plurality opinion is the narrowest ground agreed\nupon by at least five Justices). In Borden, the four-justice\nplurality and Justice Thomas agreed that a mens rea of\nrecklessness is insufficient to satisfy the elements clause.\nThe plurality opinion is narrower than Justice Thomas’s\nopinion because Justice Thomas would have held that the\nelements clause encompasses only “intentional acts\ndesigned to cause harm.” Borden, 593 U.S. at 446 (Thomas,\nJ., concurring) (quoting Voisine, 579 U.S. at 713 (Thomas,\nJ., dissenting)). Even if we had not articulated the plurality’s\nreasoning in our decision in Begay, see 33 F.4th at 1092–94,\nit would therefore be binding upon us. And, indeed, the\ngovernment now agrees that the plurality opinion must be\ntreated as controlling.\n Following Borden, the elements clause is satisfied only\nby crimes that require uses of force with a mens rea more\nculpable than recklessness. Stated differently, if a person can\nbe convicted under a criminal statute by using force against\nanother with only the “conscious[] disregard[]” of a\n“substantial and unjustifiable risk,” then the crime is not a\n\n16 USA V. GOMEZ\n\n\ncrime of violence. 3 Borden, 593 U.S. at 427 (plurality\nopinion).\n B.\n Gomez was convicted under California Penal Code\n§ 245(a)(1) for assault with a deadly weapon that is not a\nfirearm. In California, assault is “an unlawful attempt,\ncoupled with a present ability, to commit a violent injury on\nthe person of another.” Cal. Penal Code § 240. The assault\nstatute does not, on its face, require a specific mens rea. See\nid. We thus look to the California Supreme Court’s\ninterpretation of the statute to determine the requisite mens\nrea requirement. See Johnson v. United States, 559 U.S. 133,\n138 (2010) (explaining that while interpreting the elements\nclause is a question of federal law, we are bound by the state\ncourt’s “interpretation of state law, including its\ndetermination of the elements” of the relevant crime).\n The California Supreme Court has held that the requisite\nmens rea for a conviction under Section 245(a)(1) is “an\nintentional act and actual knowledge of those facts sufficient\nto establish that the act by its nature will probably and\ndirectly result in the application of physical force against\nanother.” People v. Williams, 29 P.3d 197, 204 (Cal. 2001).\nSection 245(a)(1), therefore, does not require an intent to\napply force, knowledge that an action will cause force to be\napplied to another, or even subjective awareness of a risk\nthat such force will result.\n\n\n3\n Our holding in Begay is consistent with this conclusion. See 33 F.4th at\n1093–95. In Begay, we held that crimes committed with “extreme\nrecklessness” or a “depraved heart” satisfy the elements clause because\nthey require sufficient awareness of the risk to constitute active uses of\nforce against another person. Id.\n\n USA V. GOMEZ 17\n\n\n “A person acts purposefully when he ‘consciously\ndesires’ a particular result.” Borden, 593 U.S. at 426\n(plurality opinion) (quoting Bailey, 444 U.S. at 404). Under\nWilliams, Section 245(a)(1) does not require an intent to\ncause harm; it merely requires an intent to do an act that\nresults in harm. A defendant need not have “specific intent\nto cause injury or a subjective awareness of the risk that an\ninjury might occur.” Williams, 29 P.3d at 204; see also\nPeople v. Wyatt, 229 P.3d 156, 158 (Cal. 2010) (“[T]he\ncriminal intent required for assault is ‘the general intent to\nwilfully commit an act the direct, natural and probable\nconsequences of which if successfully completed would be\nthe injury to another.’” (quoting People v. Rocha, 479 P.2d\n372, 376–77 (Cal. 1971))). The “intentional act” requirement\nin Section 245(a)(1) requires only that the act in question be\nvolitional. See Williams, 29 P.3d at 201 (“The pivotal\nquestion is whether the defendant intended to commit an act\nlikely to result in such physical force, not whether he or she\nintended a specific harm.” (quoting People v. Colantuono,\n865 P.2d 704, 712 (Cal. 1994))). It does not require the\nintentional application of force against another.4\n\n\n\n4\n Our decision in Gutierrez v. Garland, 106 F.4th 866 (9th Cir. 2024), is\nconsistent with this conclusion. In Gutierrez, we held that carjacking\nunder California Penal Code § 215 is not categorically a crime of\nviolence. See id. at 871–77. Even though carjacking under California law\nnecessarily involves the act of taking a vehicle with the intent to deprive\nits owner of that vehicle, we reasoned that the elements clause also\nrequires a sufficiently culpable mens rea as to the use of force. See id. at\n874–77. Our decision in Gutierrez demonstrates that when a state statute\ndoes not assign a sufficiently culpable mens rea to the use of force—as\nopposed to other elements of the crime—it fails to satisfy the elements\nclause. See id. at 876 (“That California courts do not consider a\ndefendant’s mens rea as to [the use of force] element [of carjacking]\n\n18 USA V. GOMEZ\n\n\n A person “acts knowingly when ‘he is aware that [a]\nresult is practically certain to follow from his conduct,’\nwhatever his affirmative desire.” Borden, 593 U.S. at 426\n(plurality opinion) (alteration in original) (quoting Bailey,\n444 U.S. at 404). The government argues that Section\n245(a)(1) requires, at the very least, a knowing use of force.\nBut such a reading is incompatible with the California\nSupreme Court’s holding, recited above, that assault “does\nnot require . . . a subjective awareness” of the risk of injury\nthe defendant has created. Williams, 29 P.3d at 204. While it\nis true that—as the government emphasizes—the California\nSupreme Court requires knowledge of the facts that make the\naction the type of act likely to result in harm, this does not\nequate to a subjective awareness that harm “is practically\ncertain” to result. Borden, 593 U.S. at 426 (plurality\nopinion). Rather, as the California Supreme Court has\nexplained, even “a defendant who honestly believes that his\nact was not likely to result in a battery is still guilty of assault\nif a reasonable person, viewing the facts known to [the]\ndefendant, would find that the act would directly, naturally\nand probably result in a battery.” Williams, 29 P.3d at 203\nn.3. This falls far short of Borden’s definition of knowledge.5\nIndeed, “knowledge of [the] . . . facts sufficient to establish\nthat the act by its nature will probably” result in force, id. at\n\n\nfurther suggests that a defendant can be convicted for accidental or\nreckless use of ‘force . . . .’”).\n5\n The government also points to a single sentence in Williams stating that\n“mere recklessness or criminal negligence” is insufficient to satisfy\nCalifornia’s assault statute. 29 P.3d at 203. But the California Supreme\nCourt explained that the quoted language uses the term recklessness “in\nits historical sense as a synonym for criminal negligence, rather than its\nmore modern conception as a subjective appreciation of the risk of harm\nto another.” Id. at 203 n.4.\n\n USA V. GOMEZ 19\n\n\n204, is less culpable even than Borden’s definition of\nrecklessness, which requires conscious disregard of a\nsubstantial risk, 593 U.S. at 427 (plurality opinion).", "author": "H.A. THOMAS, Circuit Judge:"}, {"type": "concurrence", "author": "Our", "text": "Our concurring colleague disagrees, writing that the\nrequisite mens rea for a conviction under Section 245(a)(1)\nis “a significantly more demanding mental state than the sort\nof recklessness rejected in Borden.” Concurrence at 31. Our\ncolleague emphasizes that “a defendant who violates\n§ 245(a)(1) must be shown to have intentionally committed\nan act with actual subjective knowledge of circumstances\nthat objectively establish that a battery will directly occur as\na result.” Id. But, as explained, Section 245(a)(1) “does not\nrequire . . . a subjective awareness of the risk that an injury\nmight occur.”6 Williams, 29 P.3d at 204. Awareness of the\nfacts that would cause a reasonable person to “find that the\nact would directly, naturally and probably result in a\nbattery,” id. at 203 n.3, does not equate to awareness of the\nrisk. And a defendant who lacks a subjective awareness of\nany risk cannot “consciously disregard[] a substantial and\nunjustifiable risk.” Borden, 593 U.S. at 427 (plurality\nopinion).\n Accordingly, we overrule our pre-Borden decisions\nholding that a conviction under Section 245(a)(1) is a crime\nof violence under Section 4B1.1(a). See, e.g., United States\n\n6\n Our colleague writes that recklessness under Borden “did not require\nthat the risk of a battery ‘come anywhere close to a likelihood,’ Borden,\n593 U.S. at 427 (plurality), whereas the Williams standard affirmatively\nrequires that a battery will be the ‘probabl[e] and direct[] result.’\nWilliams, 29 P.3d at 204.” Concurrence at 31. But the probability of the\nrisk of harm—even assuming that Williams requires a higher probability\nthan a substantial and unjustifiable risk—is not relevant to the mens rea\nbecause Williams does not require a defendant to have any awareness of\nthat risk.\n\n20 USA V. GOMEZ\n\n\nv. Grajeda, 581 F.3d 1186, 1189–97 (9th Cir. 2009); United\nStates v. Jimenez-Arzate, 781 F.3d 1062, 1064–65 (9th Cir.\n2015) (per curiam); United States v. Vasquez-Gonzalez, 901\nF.3d 1060, 1065–68 (9th Cir. 2018). And we hold that the\ndistrict court erred when it ruled to the contrary in Gomez’s\ncase.7\n IV.\n We next consider whether the district court’s error was\nplain. “[T]he Supreme Court has made clear that whether an\nerror is ‘plain’ for purposes of Rule 52(b) is judged ‘at the\ntime of review’ by the appellate court and not at the ‘time of\nerror.’” United States v. Irons, 31 F.4th 702, 713 (9th Cir.\n2022) (emphasis in original) (quoting Henderson v. United\nStates, 568 U.S. 266, 273 (2013)). “The question, then, is\nwhether the district court’s [determination], ‘even if now\nwrong (in light of the new appellate holding),’ should . . . be\ncharacterized as ‘questionabl[y]’ wrong rather than ‘plainly\nwrong.’” Id. (second alteration and emphasis in original)\n(quoting Henderson, 568 U.S. at 278). This requires us to\nassess “whether our analysis reveals the question at issue to\nhave a ‘plain’ answer or whether that analysis confirms that\nwe have instead answered a close and difficult question.” Id.\n\n7\n The government argues that, even if Section 245(a)(1) does not satisfy\nthe elements clause, it still meets the definition of a crime of violence\ncontained in the enumerated offenses clause. See U.S.S.G. § 4B1.2(a)(2)\n(specifying that “murder, voluntary manslaughter, kidnapping,\naggravated assault, a forcible sex offense, robbery, arson, extortion, or\nthe use or unlawful possession of a firearm” constitute crimes of\nviolence). Aggravated assault under the enumerated offenses clause,\nhowever, requires a mens rea greater than extreme recklessness. See\nUnited States v. Garcia-Jimenez, 807 F.3d 1079, 1085 (9th Cir. 2015).\nFor the reasons explained above, Section 245(a)(1) does not meet that\nstandard.\n\n USA V. GOMEZ 21\n\n\nUndertaking that analysis, we conclude that the decision we\nhave reached today is a “close and difficult” one. Id.\n Both before and after Borden, we have consistently held\nthat Section 245(a)(1) qualifies as a crime of violence. First,\nin Grajeda, we held that Section 245(a)(1) was a crime of\nviolence because it requires “‘violent’ and ‘active’” force\nand “not merely accidental” uses of force. 581 F.3d at 1195.\nWe were thus satisfied that the assault statute did not\ncriminalize merely “reckless” conduct. Id.\n Next, in Jimenez-Arzate, we considered whether two\nCalifornia cases undercut Grajeda’s holding and determined\nthat they did not. 781 F.3d at 1064–65. We explained that in\nPeople v. Aznavoleh, 210 Cal. App. 4th 1181 (2012), the\nCalifornia Court of Appeal upheld a conviction under\nSection 245(a)(1) when the defendant “intentionally ran a\nred light while racing another car down the street even\nthough he saw a car entering the intersection on the green,”\nand made “no effort to stop despite a passenger warning him\nthat he needed to stop.” Jimenez-Arzate, 781 F.3d at 1064\n(citing Aznavoleh, 210 Cal. App. 4th at 1185, 1189). And we\nnoted that in Wyatt, the California Supreme Court upheld a\nconviction for manslaughter and assault on a child causing\ndeath because “substantial evidence established that [the]\ndefendant knew he was striking his young son with his fist,\nforearm, knee, and elbow, and that he used an amount of\nforce a reasonable person would realize was likely to result\nin great bodily injury.” Id. (quoting Wyatt, 229 P.3d at 157).\nWe held that these decisions did not demonstrate that\nSection 245(a)(1) criminalizes conduct less culpable than the\nelements clause requires. Id. at 1064–65. We observed that\nthe defendant in Aznavoleh “heedlessly disregard[ed] a\nperceived likelihood of death or grave injury to others,” and\n\n22 USA V. GOMEZ\n\n\nthat in Wyatt “a reasonable person would have recognized\nthe dangers” of the defendant’s actions. Id.\n In our most recent pre-Borden decision on this issue, we\nheld that Section 245(a)(1)’s “intentional act” requirement\nestablishes that it is an intentional crime, which satisfies the\nelements clause. Vasquez-Gonzalez, 901 F.3d at 1068.\nAlthough we quoted the California Supreme Court’s\nconclusion in Williams that “recklessness or criminal\nnegligence” is insufficient under the assault statute, we did\nnot identify that, as discussed earlier, recklessness here was\na synonym for criminal negligence rather than a separate\nmental state. See id. at 1067.\n In the years since the Supreme Court decided Borden, we\nhave continued to rely upon these earlier decisions to reject\ndefendants’ arguments that Section 245(a)(1) is not a crime\nof violence. Although these decisions are unpublished, they\ndemonstrate that we did not identify Borden as being\nirreconcilable with our prior precedent. See, e.g., United\nStates v. Morton, No. 21-10291, 2022 WL 17076203, at 1\n(9th Cir. Nov. 18, 2022) (“Morton argues that Borden v.\nUnited States . . . abrogates [our] precedent. . . . We\npreviously held that section 245 offenses are crimes of\nviolence precisely because the statute requires a mens rea\ngreater than recklessness. Borden requires nothing more.”\n(citations omitted)); United States v. Man, No. 21-10241,\n2022 WL 17260489, at 1 (9th Cir. Nov. 29, 2022) (same);\nPaz-Negrete v. Garland, No. 16-73889, 2023 WL 4404348,\nat 1 (9th Cir. July 7, 2023) (“Paz-Negrete argues that\n§ 245(a)(1) is broader than § 16(a) because its elements can\nbe satisfied by an offensive touching or reckless or negligent\nconduct, but our court rejected both those arguments in\nUnited States v. Grajeda . . . and United States v. Vasquez-\nGonzalez . . . . Because Grajeda and Vasquez-Gonzalez are\n\n USA V. GOMEZ 23\n\n\nbinding authority, we conclude the IJ correctly determined\nthat Paz-Negrete’s § 245(a)(1) conviction constituted an\naggravated felony.”). And in Amaya v. Garland, we rejected\nthe argument that a crime of violence requires proof of\nspecific intent after Borden. 15 F.4th 976, 983 (9th Cir.\n2021).\n Given these decisions—and the analysis we have\nundertaken above—we cannot conclude that the answer we\nhave reached today is plain. Cf. Irons, 31 F.4th at 713\n(concluding that the “textual analysis” at issue there was\n“sufficiently one-sided, and sufficiently dictate[d] the\nanswer” that it was plain error for the district court to reach\na different conclusion). Gomez has therefore not satisfied his\nburden of showing that the district court committed plain\nerror when it applied the career offender enhancement to his\nsentence. And, in light of that conclusion, we need not\nanswer whether the error affected Gomez’s substantial\nrights.\n V.\n For the reasons discussed above, we overrule our\nprecedent recognizing a “pure question of law” exception to\nRule 52 and hold that forfeited claims of legal error are\nsubject to plain error review. We further conclude that\nconvictions under California Penal Code § 245(a)(1) are not\ncrimes of violence and cannot serve as the predicate for the\napplication of the career offender enhancement. But because\nthe district court’s error in concluding otherwise was not\nplain, its judgment stands AFFIRMED.\n\n24 USA V. GOMEZ"}, {"author": "COLLINS, Circuit Judge, concurring", "type": "concurrence", "text": "COLLINS, Circuit Judge, concurring in part and concurring\nin the judgment:\n\n I agree with the court’s decision to overrule our\nprecedent recognizing unwritten exceptions to the plain error\nstandards set forth in Federal Rule of Criminal Procedure\n52(b). I therefore join section II of the court’s opinion. I\nalso agree with the majority’s ultimate judgment affirming\nJesus Ramiro Gomez’s sentence, but I reach that conclusion\nby a very different route. Contrary to what the majority\nconcludes, I believe that we should adhere to our precedent\nholding that a conviction for assault with a deadly weapon\nunder California Penal Code § 245(a)(1) qualifies as a\n“crime of violence,” because that caselaw is not inconsistent\nwith the Supreme Court’s decision in Borden v. United\nStates, 593 U.S. 420 (2021). Consequently, I would hold\nthat the district court did not err at all, and not merely that it\ndid not commit a plain error. I therefore respectfully concur\nin part and in the judgment.\n I\n In determining Gomez’s sentencing range under the\nsentencing guidelines, the district court applied the career\noffender enhancement contained in U.S.S.G. § 4B1.1(a).\nThat ruling rested dispositively on the district court’s\nconclusion that Gomez’s prior conviction for assault with a\ndeadly weapon, in violation of California Penal Code\n§ 245(a)(1), constituted a “crime of violence” within the\nmeaning of U.S.S.G. § 4B1.2(a). That conclusion was\ndictated by our precedent holding that § 245(a)(1) is\ncategorically a crime of violence under the various\ncomparable definitions of that phrase in federal criminal law.\nSee United States v. Vasquez-Gonzalez, 901 F.3d 1060,\n1065–68 (9th Cir. 2018); United States v. Jimenez-Arzate,\n\n USA V. GOMEZ 25\n\n\n781 F.3d 1062, 1064–65 (9th Cir. 2015); United States v.\nGrajeda, 581 F.3d 1186, 1189–97 (9th Cir. 2009). Gomez\nclaims for the first time on appeal that this settled precedent\nis no longer good law in light of Borden, and I agree with the\nmajority that we review this contention under the plain error\nstandards of Federal Rule of Criminal Procedure 52(b).\nUnder those standards, Gomez must first show that (1) there\nwas an error; (2) the error is plain; and (3) the error affects\nGomez’s “substantial rights, which generally means that\nthere must be a reasonable probability that, but for the error,\nthe outcome of the proceeding would have been different.”\nGreer v. United States, 593 U.S. 503, 507–08 (2021)\n(simplified). “If those three requirements are met, [we] may\ngrant relief if [we] conclude[] that the error had a serious\neffect on the fairness, integrity or public reputation of\njudicial proceedings.” Id. at 508 (simplified). In my view,\nGomez fails at the first step, because there was no error.\n II\n A\n In evaluating whether our § 245(a)(1) precedent is\ninconsistent with Borden, we must first determine what the\nbinding holding of Borden is.\n In Borden, the defendant had previously been convicted\nof “recklessly committing an assault” in violation of a\nTennessee statute, see Borden, 593 U.S. at 424–25\n(plurality) (simplified), and he argued that this offense did\nnot qualify as a “violent felony” for purposes of the\nsentencing enhancement provided under the Armed Career\nCriminal Act (“ACCA”), 18 U.S.C. § 924(e). The relevant\ndefinition of “violent felony” in the ACCA, like that of\n“crime of violence” in U.S.S.G. § 4B1.2(a), applies to any\noffense that has as an element the “use, attempted use, or\n\n26 USA V. GOMEZ\n\n\nthreatened use of physical force against the person of\nanother.” 18 U.S.C. § 924(e)(2)(B)(i); see also U.S.S.G.\n§ 4B1.2(b) (same). In Borden, the plurality framed the\nquestion presented there as whether this “elements clause”\nof the definition “includes offenses,” like the Tennessee\nstatute, that “criminaliz[e] reckless conduct.” 593 U.S. at\n429 (plurality). The plurality answered that question in the\nnegative, holding that the definition “covers purposeful and\nknowing acts, but excludes reckless conduct.” Id. at 432.\nThe plurality reasoned that the phrase “use of physical force\nagainst the person of another” denotes a targeted use of\nforce, and thereby “sets out a mens rea requirement—of\npurposeful or knowing conduct.” Id. at 432, 434 (emphasis\nadded). Reckless conduct, which “is not opposed to or\ndirected at another,” therefore does not suffice under the\nplurality’s view. Id. at 432.\n Justice Thomas concurred in the judgment, agreeing that\nthe Tennessee offense was not a violent felony under the\nACCA. Borden, 593 U.S. at 445 (Thomas, J., concurring in\nthe judgment). However, his reasoning differed from the\nplurality’s. He concluded that “a crime that can be\ncommitted through mere recklessness does not have as an\nelement the ‘use of physical force’ because that phrase has a\nwell-understood meaning applying only to intentional acts\ndesigned to cause harm.” Id. (emphasis added) (additional\nquotation marks omitted).\n In these circumstances, in which there is no majority\nopinion for the Court, the binding holding of the decision is\nthe “position taken by those [Justices] who concurred in the\njudgment[] on the narrowest grounds.” Marks v. United\nStates, 430 U.S. 188, 193 (1977). As the majority notes, the\nnarrowest ground of decision between the plurality and\nJustice Thomas in Borden is their agreement that an offense\n\n USA V. GOMEZ 27\n\n\nthat may be committed with a mens rea of recklessness does\nnot satisfy the “elements clause” of the definition of “violent\nfelony” in the ACCA. See Opin. at 15. Borden therefore\nestablishes that if a particular statutory offense may be\ncommitted merely by showing that the person acted with\n“conscious[] disregard[]” of a “substantial and unjustifiable\nrisk . . . in gross deviation from accepted conduct”—which\nthe plurality described as “the most common formulation” of\nrecklessness—then that offense does not satisfy the elements\nclause. Borden, 593 U.S. at 427 (plurality); id. at 446\n(Thomas, J, concurring in the judgment) (relying on the\nreasoning in his prior dissent in Voisine v. United States, 579\nU.S. 686 (2016)); see also Voisine, 579 U.S. at 709 (Thomas,\nJ., dissenting) (asserting that the “standard for\nrecklessness”—viz., disregard of “a substantial and\nunjustifiable risk”—does not satisfy the mens rea required\nby the elements clause).\n Because (1) the plurality’s and Justice Thomas’s\nrejection of a mens rea of recklessness is the least common\ndenominator that defines the holding of Borden in construing\nthe elements clause; (2) there is no overlap between the\nBorden plurality opinion and Justice Thomas’s concurring\nopinion as to the extent to which a mens rea of knowledge\nwould be sufficient; and (3) it is generally inappropriate to\ncombine portions of a plurality or concurring opinion “with\na dissent” to try to form a majority rationale that would be\nbinding under Marks, see Johnson v. City of Grants Pass, 72\nF.4th 868, 913 (9th Cir. 2023) (Collins, J., dissenting), rev’d,\n603 U.S. 520 (2024), Borden does not establish a standard\nfor the minimum mens rea, above recklessness, that would\nbe needed to satisfy the elements clause. Instead, it simply\nholds that recklessness does not suffice.\n\n28 USA V. GOMEZ\n\n\n Indeed, even if the Borden plurality opinion were\nconstrued as a binding majority opinion in all respects, I do\nnot think that that opinion is fairly read as purporting to\narticulate exactly what the requisite minimum level of mens\nrea is. On the contrary, in describing the holding that\nresulted from the combination of the plurality opinion and\nJustice Thomas’s concurrence in the judgment, the plurality\nitself described that holding exactly as I have:\n\n Four Justices think that the “use” phrase, as\n modified by the “against” phrase, in ACCA’s\n elements clause excludes reckless conduct.\n One Justice thinks, consistent with his\n previously stated view, that the “use” phrase\n alone accomplishes that result. See post, at\n 446 (THOMAS, J., concurring in judgment).\n And that makes five to answer the question\n presented. Q: Does the elements clause\n exclude reckless conduct? A: Yes, it does.\n\n593 U.S. at 437 n.6 (plurality).\n Moreover, the notion that the Borden plurality opinion\nestablishes a minimum level of mens rea seems impossible\nto square with the plurality’s insistence, in a footnote, that it\nwas not addressing whether “mental states (often called\n‘depraved heart’ or ‘extreme recklessness’) between\nrecklessness and knowledge” satisfied the elements clause.\nBorden, 593 U.S. at 429 n.4 (emphasis added). And we have\npreviously explicitly recognized, in a prior en banc decision,\nthat “the Supreme Court’s decision in Borden stopped short\nof deciding whether offenses that may be committed with\nmental states between ordinary recklessness and knowledge\n. . . qualify as crimes of violence.” United States v. Begay,\n\n USA V. GOMEZ 29\n\n\n33 F.4th 1081, 1086 (9th Cir. 2022) (en banc). Put simply,\nif the Borden plurality expressly declined to address whether\nany mens rea standard “between” recklessness and\nknowledge satisfies the elements clause, then the plurality’s\nopinion cannot be read to define what the requisite minimum\nmens rea is. Borden merely holds that, whatever the exact\nline is, “ordinary recklessness” does not meet it. Borden,\n593 U.S. at 429 n.4 (plurality).\n In my view, the majority therefore errs in extracting from\nBorden a minimum standard as to the level of knowledge\nthat must be included in an offense’s elements in order for\nthat offense to satisfy the elements clause. According to the\nmajority, Borden restricts the qualifying offenses to those\nthat include a knowledge requirement that meets or exceeds\nthe particular definition of knowledge set forth in the Model\nPenal Code and a few other sources. Thus, under the\nmajority’s view, an offense suffices only if its mens rea\nelement requires knowledge in the sense of a defendant’s\nsubjective “aware[ness] that [a] result is practically certain\nto follow from his conduct.” See Opin. at 18 (quoting\nBorden, 593 U.S. at 426 (plurality) (emphasis added)); see\nalso Model Penal Code § 2.02(b)(ii) (“A person acts\nknowingly with respect to a material element of an offense\nwhen: . . . if the element involves a result of his conduct, he\nis aware that it is practically certain that his conduct will\ncause such a result.”).\n But in referencing this particular definition of\nknowledge, the Borden plurality did not suggest that it was\nthe only one that would be acceptable under the elements\nclause. Rather, the Borden plurality invoked this\nformulation in order to underscore just how sharply the\nconcept of knowledge contrasts with that of recklessness. As\nthe plurality explained, recklessness is very different from\n\n30 USA V. GOMEZ\n\n\nknowledge because the “substantial and unjustifiable risk”\nthat, if disregarded, establishes recklessness “need not come\nanywhere close to a likelihood,” much less the practical\ncertainty required under the Model Penal Code formulation\nof knowledge. Borden, 593 U.S. at 427 (plurality) (emphasis\nadded); see also id. (noting that recklessness covers “low-\nprobability events” and “possible consequence[s]”).\nFurthermore, the Supreme Court authority on which Borden\nrelied on this point did not itself consistently enunciate a\n“practical certainty” standard. In discussing the mens rea of\nknowledge, Borden cited United States v. United States\nGypsum Co., 438 U.S. 422 (1978), which in turn\ninterchangeably referenced both knowledge that a result was\n“practically certain” to occur and “knowledge that the\nproscribed effects would most likely follow.” Id. at 444–45\n(emphasis added) (citations omitted); see also id. at 444\n(referencing “action undertaken with knowledge of its\nprobable consequences” (emphasis added)). Nothing in\nBorden required the Court to settle upon an exact line as to\nwhat mens rea above recklessness would suffice for\npurposes of the elements clause, and the Court did not do so.\n Accordingly, the binding holding of Borden is that an\noffense with a mens rea of recklessness, as described in\nBorden, does not satisfy the elements clause.\n B\n The question, then, is whether California Penal Code\n§ 245(a)(1) permits a conviction based on the sort of\nrecklessness that was rejected by Borden. The answer is no.\n As definitively construed by the California Supreme\nCourt, the “assault” offense set forth in § 245(a)(1) requires,\ninter alia, “[1] an intentional act and [2] actual knowledge\nof those facts sufficient to establish that the act by its nature\n\n USA V. GOMEZ 31\n\n\nwill probably and directly result in the application of\nphysical force against another.” People v. Williams, 29 P.3d\n197, 204 (Cal. 2001) (emphasis added). In other words,\n§ 245(a)(1) requires subjective knowledge of those facts\nthat, in turn, objectively establish that a battery is likely to\noccur as the direct result of the defendant’s intentional act,\nbut the statute does not require subjective knowledge that the\nbattery itself will occur.\n This distinctive mens rea is a significantly more\ndemanding mental state than the sort of recklessness rejected\nin Borden. The latter standard, as the plurality explained,\ndid not require that the risk of a battery “come anywhere\nclose to a likelihood,” Borden, 593 U.S. at 427 (plurality),\nwhereas the Williams standard affirmatively requires that a\nbattery will be the “probabl[e] and direct[] result.” Williams,\n29 P.3d at 204; see also id. at 202 (explaining that “the\nmental state for assault incorporates the language of\nprobability, i.e., direct, natural and probable\nconsequences”). Moreover, in contrast to a defendant acting\nwith ordinary recklessness, who merely “pay[s] insufficient\nattention to the potential application of force,” a defendant\nwho violates § 245(a)(1) must be shown to have\nintentionally committed an act with actual subjective\nknowledge of circumstances that objectively establish that a\nbattery will directly occur as a result. Borden, 593 U.S. at\n432 (plurality). And because § 245(a)(1) thus requires an\nintentional act and subjective knowledge of the facts that\nmake the battery likely to directly result from that act, a\n§ 245(a)(1) violation involves a “targeted” use of force\n“against” another person in a way that ordinary recklessness\ndoes not. Id. Although Williams’s mens rea standard falls\nshort of the Model Penal Code’s knowledge standard\n(because it does not require subjective knowledge that the\n\n32 USA V. GOMEZ\n\n\nbattery itself is practically certain to occur), it is more\ndemanding than the sort of mere recklessness rejected in\nBorden.\n The majority does not dispute that, as compared to\nordinary recklessness, the nuanced mens rea element\ndescribed in Williams requires a much greater likelihood that\na battery will result from the act that the defendant\nintentionally commits with knowledge of the associated\nobjectively-risk-creating circumstances. But the majority\nsays that this difference does not matter because there is\nanother difference that cuts the other way: in contrast to the\n“most common formulation” of recklessness, which requires\na showing that the defendant “consciously disregard[ed] a\nsubstantial and unjustifiable risk,” Borden, 593 U.S. at 427\n(plurality) (emphasis added), the Williams standard “does\nnot require . . . a subjective awareness of the risk that an\ninjury might occur,” Williams, 29 P.3d at 204 (emphasis\nadded). Given this latter difference, the majority argues, the\nmuch higher probability of the risk required by Williams is\n“not relevant,” and the Williams standard is “less culpable\neven than Borden’s definition of recklessness.” See Opin. at\n18–19 & n.6 (emphasis added). The majority’s reasoning is\nflawed.\n There are good reasons to doubt the majority’s\nconclusion that an aggravated assault under § 245(a)(1) is\n“less culpable” than the reckless assault offense at issue in\nBorden, but that issue is ultimately beside the point.1 The\n\n1\n Culpability is the focus of other provisions, such as the provision of the\nImmigration and Nationality Act declaring “inadmissible” certain\npersons who have committed a “crime involving moral turpitude,”\n8 U.S.C. § 1182(a)(2)(A)(i)(I). See Safaryan v. Barr, 975 F.3d 976,\n985–88 (9th Cir. 2020) (holding that § 245(a)(1) is categorically a crime\n\n USA V. GOMEZ 33\n\n\nrelevant question here is not relative culpability in the\nabstract but whether the elements of the offense establish the\nrequisite targeting of force against another person. See\nBorden, 593 U.S. at 429 (plurality). There is no such\ndirecting of force at another when, as with ordinary\nrecklessness, the risk created by the defendant “need not\ncome anywhere close to a likelihood.” Id. at 427. But when\nthe defendant’s intentional actions make it likely that force\nwill be applied against another person as the direct\nconsequence of those actions, and the defendant knows the\nfacts that create that direct likelihood, he has “used force\n‘against’ another person in the targeted way that [the\nelements] clause requires.” Id. at 432.2 The fact that the\n\ninvolving moral turpitude, because its combination of aggravating\nfactors and mens rea makes the offense sufficiently turpitudinous under\nthe applicable “sliding scale,” which considers the combined culpability\nof both “a sufficiently reprehensible actus reus and a sufficiently\nculpable mens rea”). The much greater likelihood of bodily harm\ninherent in an aggravated assault under § 245(a)(1) as opposed to the\nreckless assault offense at issue in Borden significantly augments the\nformer offense’s culpability, and that substantially increased culpability\noutweighs the relatively modest countervailing distinction in culpability\n“between (1) someone who is subjectively aware of the facts that create\n[an] obvious risk versus (2) someone who is subjectively aware of [the]\nrisk.” Id. at 987. Nonetheless, I do not discern anything in the majority’s\ndecision that calls into question Safaryan’s holding that § 245(a)(1) is\ncategorically a crime involving moral turpitude. See id. at 988 (noting\nthat, under the sliding scale that governs the distinct analysis applicable\nto a “crime involving moral turpitude,” even “recklessness is an adequate\nmens rea for assault if combined with additional aggravating factors”).\n2\n The panel opinion was therefore wrong in contending that § 245(a)(1)\nwould cover the hypothetical described in Borden in which “a driver . . .\n‘decides to run a red light, and hits a pedestrian whom he did not see.’”\nUnited States v. Gomez, 115 F.4th 987, 995 (9th Cir. 2024) (quoting\nBorden, 593 U.S. at 432 (plurality)). Because Williams makes clear that\na defendant cannot be convicted based on “facts he did not know but\n\n34 USA V. GOMEZ\n\n\ndefendant may not subjectively perceive the obvious direct\nconsequence of what he knows he is doing does not negate\nthe “directedness or targeting,” id. at 430, that inheres in the\nclose connection between his known actions and their direct\nconsequence.\n Viewed in this fuller context, § 245(a)(1)’s mens rea\nrequirement is somewhere “between ordinary recklessness\nand knowledge” as defined in the Model Penal Code\nprovisions quoted in Borden. Begay, 33 F.4th at 1086.\nBecause § 245(a)(1) does not allow conviction based on the\nsort of recklessness rejected in Borden, our existing caselaw\nholding that § 245(a)(1) satisfies the elements clause is not\ninconsistent with the binding holding of Borden. Absent\nfurther guidance from the Supreme Court, I therefore would\nadhere to our precedent on stare decisis grounds and hold\nthat § 245(a)(1) is a crime of violence for purposes of the\nelements clause.\n\n\n\n\nshould have known” and must be shown to have known “the facts that\nwould lead a reasonable person to realize that a battery would directly,\nnaturally and probably result from his conduct,” Williams, 29 P.3d at\n788, § 245(a)(1) does not apply to a defendant who actually thinks the\ncrosswalk is clear when he runs the red light. Cf. People v. Yorba, 2008\nWL 727693, at 6 (Cal. Ct. App. 2008) (upholding a § 245(a)(1)\nconviction because a jury could reasonably find that the defendant knew\nthe facts making a collision likely when he “was speeding through a red\nlight” and he saw “another car whose driver was proceeding legally with\nthe left-turn arrow and who had looked both ways before entering the\nintersection,” even though “defendant was honking his horn while\napproaching the intersection, was being chased by police cars with their\nsirens on, and had illegally driven through other traffic-light-controlled\nintersections while evading the police at unsafe speeds well in excess of\nthe posted speed limits without being involved in other collisions”).\n\n USA V. GOMEZ 35\n\n\n C\n As I have noted, the majority’s contrary view is based on\nthe premise that Borden requires that the knowledge element\nmust meet or exceed the knowledge required under the\nModel Penal Code formulation. I agree with the majority\nthat its conclusion properly follows from that assumption,\nbut for the reasons I have explained, I do not think that\nBorden requires us to adopt that premise. Beyond that, I\nhave one final concern about the majority’s approach.\nSpecifically, despite the majority’s insistence to the\ncontrary, see Opin. at 16 n.3, the reasoning in its opinion\ntoday cannot be reconciled with our en banc decision in\nBegay.\n I agree that Begay’s holding—viz., that “crimes\ncommitted with ‘extreme recklessness’ or a ‘depraved heart’\nsatisfy the elements clause”—is logically “consistent” with\nthe rule that “if a person can be convicted under a criminal\nstatute by using force against another with only the\nconscious disregard of a substantial and unjustifiable risk,\nthen the crime is not a crime of violence” under Borden. See\nOpin. at 15–16 & n.3 (simplified). Stated differently, I agree\nwith the majority that the statute at issue in Begay requires\nmore than the recklessness rejected in Borden, and in that\nsense Begay is consistent with Borden. See supra at 30\n(explaining that the binding holding of Borden is simply that\n“an offense with a mens rea of recklessness, as described in\nBorden, does not satisfy the elements clause”).\n The problem with the majority’s approach is that the\n“extreme recklessness” and “depraved heart” standards\ndiscussed in Begay do not satisfy the Model Penal Code’s\nknowledge standard, which the majority later deploys as a\nsufficient basis for its conclusion that § 245(a)(1) fails the\n\n36 USA V. GOMEZ\n\n\nelements clause under Borden. See Opin. at 18–19. Indeed,\nwe expressly acknowledged in Begay that the “mental\nstates” that were “at issue” there fell “between recklessness\nand knowledge” as described in Borden. Begay, 33 F.4th at\n1093. If, as the majority insists, the Model Penal Code\nstandard of knowledge must be met in order for a particular\noffense to satisfy the elements clause, then Begay was\nwrongly decided and cannot stand. The majority seems\nunwilling to accept that conclusion, but it does not explain\nhow the statute at issue in Begay satisfies the majority’s test\nwhile § 245(a)(1) fails that test.\n * * *\n Borden held that ordinary recklessness does not suffice\nunder the elements clause, and that holding is consistent with\nour existing caselaw addressing § 245(a)(1). Because\nBorden does not disturb that precedent, I would adhere to it\nunless and until the Supreme Court further refines its\nunderstanding of the elements clause. I would therefore hold\nthat the district court correctly concluded that § 245(a)(1) is\na crime of violence. Accordingly, the district court did not\nerr, much less plainly err, by applying the career offender\nenhancement. On that basis, I respectfully concur in part and\nin the judgment.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11240375/", "author_raw": "COLLINS, Circuit Judge, concurring"}]}	MARY H MURGUIA	RONALD M GOULD	MILAN D SMITH JR	2	JACQUELINE H NGUYEN; RYAN D NELSON; ERIC D MILLER; DANIEL P COLLINS; LUCY H KOH; JENNIFER SUNG; HOLLY A THOMAS; ANA DE ALBA	{}	3	0	2	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10773790/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,773,857	Malheur Forest Fairness Coalition v. Iron Triangle, LLC	2026-01-13	24-6366	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: MILAN D. SMITH, JR., JACQUELINE H. NGUYEN, and HOLLY A. THOMAS, Circuit Judges.", "parties": "", "opinions": [{"author": "M. SMITH, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\nMALHEUR FOREST FAIRNESS No. 24-6366\nCOALITION, an unincorporated\n D.C. No.\nassociation; PRAIRIE WOOD\n 2:22-cv-01396-\nPRODUCTS, LLC, an Oregon\n HZ\nlimited liability company; RUDE\nLOGGING, LLC, an Oregon limited\nliability company; BRETT MORRIS,\nan individual; MORRIS FORESTRY, OPINION\nLLC, an Oregon limited liability\ncompany; ENGLE CONTRACTING,\nLLC, an Oregon limited liability\ncompany; H TIMBER\nCONTRACTING, LLC, an Oregon\nlimited liability company; DOUG\nEMMEL, assumed business name\ndba Emmel Brothers Ranch;\nDARRELL EMMEL, assumed\nbusiness name dba Emmel Brothers\nRanch; PAT VOIGT, assumed\nbusiness name dba Ricco Ranch;\nHEDY VOIGT, doing business as\nRicco Ranch,\n\n Plaintiffs - Appellants,\n\n v.\n\nIRON TRIANGLE, LLC, an Oregon\n\f2 MALHEUR FOREST FAIRNESS COAL. V. IRON TRIANGLE, LLC\n\n\nlimited liability company; I.T.\nLOGGING, INC., an Oregon\ncorporation; RUSSELL YOUNG, an\nindividual; OCHOCO LUMBER\nCOMPANY, an Oregon limited\npartnership doing business as\nMalheur Lumber Company,\n\n Defendants - Appellees.\n\n Appeal from the United States District Court\n for the District of Oregon\n Marco A. Hernández, District Judge, Presiding\n\n Argued and Submitted November 5, 2025\n Portland, Oregon\n\n Filed January 13, 2026\n\n Before: MILAN D. SMITH, JR., JACQUELINE H.\n NGUYEN, and HOLLY A. THOMAS, Circuit Judges.\n\n Opinion by Judge M. Smith, Jr.\n\f MALHEUR FOREST FAIRNESS COAL. V. IRON TRIANGLE, LLC 3\n\n\n SUMMARY\n\n\n Antitrust\n\n The panel affirmed the district court’s dismissal of an\nantitrust action alleging that Iron Triangle, LLC, and other\ndefendants engaged in monopolization and restraint of trade,\nin violation of Sherman Act §§ 2 and 1, in products and\nservices markets related to the acquisition and processing of\ntimber on both federal and private timberland in the Malheur\nNational Forest.\n In a competitive bidding process held by the United\nStates Forest Service in 2013, Iron Triangle was awarded the\nexclusive ability to provide the Forest Service with\nstewardship services in the Malheur National Forest Market\nArea for a ten-year term, as well as right of first refusal on\n70% of harvestable federal timberland. Iron Triangle\nadditionally participated in public bidding, also operated by\nthe Forest Service, on the remaining 30% of federal\ntimberland and usually won these bids. In 2020, Iron\nTriangle entered into a purchase agreement with defendant\nMalheur Lumber Company, wherein Iron Triangle would\nprovide Malheur Lumber with its requirements for pine\nsawlogs for over two years, and Malheur Lumber would\npurchase contract logging services from Iron\nTriangle. Plaintiffs alleged that Iron Triangle had used\nanticompetitive tactics to obtain a monopoly or monopsony\nin four interrelated product markets: the “Stewardship\nServices Market,” the “Harvest Rights Market,” the\n\n\n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\f4 MALHEUR FOREST FAIRNESS COAL. V. IRON TRIANGLE, LLC\n\n\n“Logging Services Market,” and the “Softwood Sawlog\nMarket.” Plaintiffs also alleged that defendants conspired to\nrestrain trade through an illegal tying agreement.\n As to the monopolization claim under Section 2 of the\nSherman Act, the panel concluded that the district court\nerred in holding that a seller cannot exercise monopoly\npower when the Government is the only buyer and when\nfederal regulations restrict the Government to a reasonable\nor best-value price. Nonetheless, plaintiffs failed to\nplausibly plead a monopoly in the Steward Services Market,\nconsisting of the purchase and sale of forest stewardship\nservices. As to the Harvest Rights Market, in which the\nGovernment was the only seller, the district court again erred\nin relying on the preclusive effect of federal regulations, but\nthe panel affirmed on the alternative ground that plaintiffs\ndid not plausibly plead monopoly power in this market\nbecause Iron Triangle could not prevent other buyers from\nbidding for harvest rights. Plaintiffs also failed to plead\nmonopoly power in the Logging Services Market and the\nSoftwood Sawlog Market by either direct or circumstantial\nevidence. The panel further held that plaintiffs failed to\nshow anticompetitive conduct on theories of false\nrepresentations to the Forest Service, predatory bidding for\nharvest rights, and hoarding of logging\nopportunities. Defendants’ alleged tying arrangement also\nfailed as a theory for anticompetitive conduct.\n As to the claim of conspiracy in restraint of trade under\nSection 1 of the Sherman Act, plaintiffs alleged that\ndefendants entered into an illegal tying arrangement under\nwhich Malheur Lumber refused to purchase pine sawlogs\nproduced in the Malheur National Forest Market Area from\nsellers other than Iron Triangle, in order to foreclose their\nability to sell pine sawlogs locally and thereby undermine\n\f MALHEUR FOREST FAIRNESS COAL. V. IRON TRIANGLE, LLC 5\n\n\ntheir ability to compete with Iron Triangle in the Logging\nServices and Softwood Sawlog Markets. The panel held that\nto survive a motion to dismiss for a per se unlawful tying\narrangement, a plaintiff must plead: (1) that the defendant\ntied together the sale of two distinct products or services;\n(2) that the defendant possessed enough economic power in\nthe tying market to coerce its customers into purchasing the\ntied product; and (3) that the tying arrangement affected a\nnot insubstantial volume of commerce in the tied product\nmarket. The panel agreed with the district court that legging\nservices and sawlogs were not two distinct products with\ndistinct markets. For the reasons discussed pertaining to\nplaintiffs’ Section 2 claim, the panel held that plaintiffs also\ndid not properly plead anticompetitive conduct or antitrust\ninjury, and so their Section 1 claim also failed under the rule\nof reason.\n\f6 MALHEUR FOREST FAIRNESS COAL. V. IRON TRIANGLE, LLC\n\n\n COUNSEL\n\nMichael E. Haglund (argued), Christopher T. Griffith,\nChristopher G. Lundberg, and Eric J. Brickenstein, Haglund\nKelley LLP, Portland, Oregon, for Plaintiffs-Appellants.\nTimothy W. Snider (argued) and Rachel C. Lee, Stoel Rives\nLLP, Portland, Oregon; Matthew D. Segal, Stoel Rives LLP,\nSacramento, California; Lawson E. Fite, Schwabe\nWilliamson & Wyatt PC, Portland, Oregon; Daniel C.\nPeterson (argued), Shayna M. Rogers, and Julie A. Smith,\nCosgrave Vergeer Kester LLP, Portland, Oregon; for\nDefendants-Appellees.\nSteven J. Mintz, Nickolai G. Levin, and Daniel E. Haar,\nAttorneys; Alice A. Wang, Counsel to the Assistant Attorney\nGeneral; David B. Lawrence, Policy Director; John W. Elias,\nDeputy Assistant Attorney General; Doha G. Mekki, Acting\nAssistant Attorney General; Antitrust Division, United\nStates Department of Justice, Washington, D.C.; for Amicus\nCuriae the United States of America.\n\f MALHEUR FOREST FAIRNESS COAL. V. IRON TRIANGLE, LLC 7\n\n\n OPINION\n\nM. SMITH, Circuit Judge:\n\n Since 2013, Defendant Iron Triangle, LLC (Iron\nTriangle) has substantially expanded its market presence in\nthe Malheur National Forest (MNF). In this litigation,\nPlaintiffs contend it has done so in violation of federal\nantitrust laws. Specifically, Plaintiffs allege competitive\ninjuries across four products and services markets related to\nthe acquisition and processing of timber on both federal and\nprivate timberland. The alleged catalyst for Plaintiffs’\ninjuries is a lucrative contract obtained by Iron Triangle\nthrough a competitive bidding process held by the United\nStates Forest Service (Forest Service) in 2013. That contract\nawarded Iron Triangle the exclusive ability to provide the\nForest Service with stewardship services in the MNF Market\nArea for a ten-year term, as well as right of first refusal on\n70% of harvestable federal timberland. Iron Triangle\nadditionally participates in public bidding, also operated by\nthe Forest Service, on the remaining 30% of federal\ntimberland and usually wins these bids. In 2020, Iron\nTriangle entered into a purchase agreement with Defendant\nMalheur Lumber Company (Malheur Lumber) wherein Iron\nTriangle agreed to provide Malheur Lumber with its\nrequirements for pine sawlogs for over two years. The same\nagreement provided that Malheur Lumber would purchase\ncontract logging services from Iron Triangle.\n The district court dismissed Plaintiffs’ action with\nprejudice, finding that Plaintiffs failed to state claims for\nmonopolization and restraint of trade under the Sherman\nAntitrust Act, 15 U.S.C. §§ 2, 1. Although we disagree with\nthe district court that federal government contracting\n\f8 MALHEUR FOREST FAIRNESS COAL. V. IRON TRIANGLE, LLC\n\n\nregulations preclude a finding of monopoly power as a\nmatter of law, we affirm dismissal because Plaintiffs do not\nplead facts sufficient to state their antitrust claims. Because\nPlaintiffs have not demonstrated that they could cure the\nidentified deficiencies in their pleadings, we further hold that\nthe district court did not abuse its discretion by denying\nPlaintiffs leave to amend their complaint for a third time.\n FACTUAL AND PROCEDURAL BACKGROUND\n Plaintiffs are a coalition of several groups—including\nloggers, landowners, and a sawmill 1 —alleging antitrust\ninjury by Iron Triangle and Malheur Lumber (collectively,\nDefendants). Plaintiffs allege that Iron Triangle has used\nanticompetitive tactics to obtain a monopoly or monopsony\nin four interrelated product markets in the MNF Market\nArea. Plaintiffs also allege that Defendants conspired to\nrestrain trade through an illegal tying agreement.\n This appeal concerns four product markets in the MNF\nMarket Area—the “Stewardship Services Market,” the\n“Harvest Rights Market,” the “Logging Services Market,”\nand the “Softwood Sawlog Market.”\n The Stewardship Services Market consists of the\npurchase and sale of forest stewardship services, including\nprecommercial thinning, road maintenance, fire risk\nreduction, and related services. Iron Triangle is a seller in\nthis market and holds a 100% market share due to the\nStewardship Contract it won from the Forest Service. The\nForest Service is the only buyer in this market.\n\n\n\n1\n We refer to the various groups as the Logger Plaintiffs, Landowner\nPlaintiffs, and Prairie Wood, respectively.\n\f MALHEUR FOREST FAIRNESS COAL. V. IRON TRIANGLE, LLC 9\n\n\n The Harvest Rights Market is the market for timber\nharvest rights in the MNF Market Area. Iron Triangle is a\nbuyer in this market and, as a result of the Stewardship\nContract, has held a dominant share of at least 70% of this\nmarket since 2013. Plaintiffs’ monopolization claim\nconcerns the remaining 30% of harvest rights, which they\nargue Iron Triangle has also dominated through\nanticompetitive practices. The Forest Service is the\ndominant seller in this market.\n The Logging Services Market includes the purchase and\nsale of contract logging services performed by loggers who\nare paid to harvest sawlogs from areas of the MNF where\ntimber harvest rights have been awarded or from private\nforest land. Iron Triangle is a seller in this market. Plaintiffs\nassert that Iron Triangle holds over 90% market share as a\nprovider of logging services in the MNF Market Area.\n Finally, the Softwood Sawlog Market is a commodity\nmarket for the purchase and sale of sawlogs of pine, fir, and\nlarch species harvested in the MNF Market Area. Iron\nTriangle is a seller in this market, while Malheur Lumber\nand Plaintiff Prairie Wood are buyers in this market.\nPlaintiffs allege that Iron Triangle holds over 90% market\nshare in this market.\n In 2013, Iron Triangle participated in a competitive\nbidding process for, and won, a ten-year, $69 million\nstewardship services contract (Stewardship Contract) for the\nMNF from the Forest Service. The Stewardship Contract\nalso provided Iron Triangle with the right of first refusal to\npurchase timber harvest rights on 70% of the federal timber\navailable for sale from the MNF. Iron Triangle initially\nsubcontracted logging services under the Stewardship\nContract to other companies, including two of the Logger\n\f10 MALHEUR FOREST FAIRNESS COAL. V. IRON TRIANGLE, LLC\n\n\nPlaintiffs. The next year, Iron Triangle offered subcontracts\nto the same logging companies but at reduced rates. While\none Logger Plaintiff declined to accept the reduced rates, the\nother continued to perform logging services at the reduced\nrates for two more years before stopping, citing slim profits.\nPlaintiffs allege that during this time, Iron Triangle\novercharged the Forest Service for the work of removing,\nharvesting, and delivering logs to manufacturers, thereby\ntripling the original $69 million “not-to-exceed” cost of the\nten-year Stewardship Contract. According to Plaintiffs, Iron\nTriangle then used those profits to engage in predatory\nbidding in open market sales, and it ultimately outbid\ncompetitors on most of the remaining 30% of annual timber\nharvest. By the end of 2021, Iron Triangle had increased the\nvolume of its contracted timber harvest rights to over 90%\nof the offered volume in the MNF.\n Malheur Lumber is a wood product manufacturer that\nowns a sawmill and sources pine sawlogs in the MNF\nMarket Area. Plaintiff Prairie Wood Products, LLC (Prairie\nWood) also owns a sawmill but mills mostly fir logs. When\nPrairie Wood reopened in 2022, 2 it sought to purchase fir\nsawlogs from Iron Triangle and to sell pine logs to Malheur\nLumber. However, in 2020, Iron Triangle and Malheur\nLumber entered into a two-year contract wherein Iron\nTriangle agreed to sell to Malheur Lumber its requirements\nfor pine sawlogs from the timber Iron Triangle controlled in\nthe MNF. Plaintiffs allege this was an unlawful tying\nagreement that included a commitment by Malheur Lumber\nnot to purchase pine sawlogs or contract logging services\nfrom any other logging company. When Malheur Lumber\n\n2\n Prairie Wood shut down in 2009 due to the Great Recession and\nremained closed until 2022.\n\f MALHEUR FOREST FAIRNESS COAL. V. IRON TRIANGLE, LLC 11\n\n\ndid offer to buy sawlogs from the Logger Plaintiffs,\nPlaintiffs allege that it quoted prices below the cost of\nproduction, which Plaintiffs argue was done for the purpose\nof inducing rejection and providing cover for the tying\nagreement. Defendants maintain that the agreement was a\nstandard requirements contract and that it did not contain any\nexclusivity provision.\n Plaintiffs brought an action under the Sherman Antitrust\nAct, 15 U.S.C. § 2, alleging monopolization pursuant to\nSection 2 against Iron Triangle. Plaintiffs sought, inter alia,\ninjunctive relief “to reestablish competitive conditions” in\nall four alleged markets in the MNF Market Area, $117\nmillion in treble damages under the Sherman Act and the\nClayton Act, and attorneys’ fees and costs.\n In January 2023, Plaintiffs filed their First Amended\nComplaint (FAC), adding Malheur Lumber as a defendant\nand a claim for conspiracy in restraint of trade pursuant to\n15 U.S.C. § 1. Defendants moved to dismiss that complaint,\nand the district court granted the motion without prejudice,\nconcluding that Plaintiffs failed to adequately allege market\npower, anticompetitive behavior, and antitrust injury in each\nof the four product markets, as well as conspiracy in restraint\nof trade. In November 2023, Plaintiffs filed their Second\nAmended Complaint (SAC), focusing on just two of the four\nrelevant product markets. Defendants again moved to\ndismiss, this time with prejudice, and the district court\ngranted those motions. As for Plaintiffs’ Section 2 claim,\nthe district court found that Plaintiffs failed to allege\nmonopoly power in the two product markets discussed in the\nSAC and therefore did not address the remaining elements\nof the monopolization claim. As for Plaintiffs’ Section 1\nclaim, the court held that Plaintiffs failed to allege a\nconspiracy because the products at the core of the alleged\n\f12 MALHEUR FOREST FAIRNESS COAL. V. IRON TRIANGLE, LLC\n\n\ntying arrangement were not distinct and, separately, because\nthe agreement could reasonably represent legitimate\nbusiness behavior. The district court dismissed the SAC\nwith prejudice and without leave to amend.\n Plaintiffs timely appealed, seeking reversal of the district\ncourt’s dismissal and a reinstatement of their claims, or, in\nthe alternative, reversal of the district court’s denial of leave\nto amend and remand with instructions permitting Plaintiffs\nto replead. The United States filed an amicus brief in support\nof neither party solely on the issue of whether relevant\ngovernment contracting regulations bar any allegation of\nmonopoly or monopsony power in the Stewardship Services\nand Harvest Rights Markets.\n JURISDICTION AND STANDARD OF REVIEW\n We have jurisdiction pursuant to 28 U.S.C. § 1291. We\nreview a district court’s dismissal for failure to state a claim\nunder Federal Rule of Civil Procedure 12(b)(6) de novo.\nBodenburg v. Apple Inc., 146 F.4th 761, 767 (9th Cir. 2025).\nIn so reviewing, we “accept as true Plaintiffs’ nonconclusory\nfactual allegations, construe all reasonable inference[s] in\nfavor of Plaintiffs, and ask whether the facts are sufficient to\nstate a claim to relief that is plausible on its face.” Dowers\nv. Nationstar Mortg., LLC, 852 F.3d 964, 969 (9th Cir.\n2017); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).\n“Plausibility requires pleading facts, as opposed to\nconclusory allegations or the formulaic recitation of the\nelements of a cause of action, and must rise above the mere\nconceivability or possibility of unlawful conduct that entitles\nthe pleader to relief.” Somers v. Apple, Inc., 729 F.3d 953,\n959–60 (9th Cir. 2013) (citation modified). We may affirm\nthe district court’s dismissal “on any basis supported by the\nrecord, even if the district court relied on different grounds\n\f MALHEUR FOREST FAIRNESS COAL. V. IRON TRIANGLE, LLC 13\n\n\nor reasoning.” Maldonado v. Harris, 370 F.3d 945, 949 (9th\nCir. 2004). We review the denial of leave to amend for abuse\nof discretion, but the question of futility of amendment is\nreviewed de novo. United States v. United Healthcare Ins.\nCo., 848 F.3d 1161, 1172 (9th Cir. 2016).\n ANALYSIS\n We start with Plaintiffs’ monopolization claim before\nturning to conspiracy in restraint of trade. For the reasons\ndiscussed below, we conclude that Plaintiffs have not stated\neither claim, though we disagree with the district court that\nfederal government contracting regulations preclude a\nfinding of monopoly power as a matter of law. We\nnevertheless affirm dismissal because Plaintiffs do not plead\nsufficient facts to make out any element of their\nmonopolization claim in any of the four Markets, nor the\nfactual matter required to plead a tying agreement.\n I. Monopolization\n Section 2 of the Sherman Act makes it unlawful to\n“monopolize, or attempt to monopolize, or combine or\nconspire . . . to monopolize” a market. 15 U.S.C. § 2. To\nstate a plausible monopolization claim, Plaintiffs must show\n(1) “the possession of monopoly power in the relevant\nmarket”; (2) “the willful acquisition or maintenance of that\npower as distinguished from growth or development as a\nconsequence of a superior product, business acumen, or\nhistoric accident”; and (3) “causal antitrust injury.” Epic\nGames, Inc. v. Apple, Inc., 67 F.4th 946, 998 (9th Cir. 2023)\n(quoting United States v. Grinnell Corp., 384 U.S. 563, 570–\n71 (1966)); Somers, 729 F.3d at 963. Plaintiffs do not\nsuccessfully plead any element in any of the four Markets.\nSee United States v. Syufy Enters., 903 F.2d 659, 672 n.22\n\f14 MALHEUR FOREST FAIRNESS COAL. V. IRON TRIANGLE, LLC\n\n\n(9th Cir. 1990) (“Antitrust violations must be judged on a\nmarket-by-market basis.”).\n A. Monopoly Power\n Monopoly power is “the substantial ability ‘to control\nprices or exclude competition.’” Epic Games, 67 F.4th at\n998 (quoting Grinnell, 384 U.S. at 571). It requires\n“something greater” than mere market power. Eastman\nKodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 481\n(1992). Monopoly power may be demonstrated through\ndirect or circumstantial evidence. See Rebel Oil Co. v. Atl.\nRichfield Co., 51 F.3d 1421, 1434 (9th Cir. 1995). Plaintiffs\ncan plead monopoly power by direct evidence by alleging\n“restricted output and supracompetitive prices,” 3 that is,\n“direct proof of the injury to competition which a competitor\nwith market power may inflict[.]” Id. “A supracompetitive\nprice is simply a price above competitive levels.” CoStar\nGrp., Inc. v. Com. Real Estate Exch., Inc., 150 F.4th 1056,\n1068 (9th Cir. 2025) (citation modified). Circumstantial\nevidence is the “more common type of proof” and requires\nPlaintiffs to “(1) define the relevant market, (2) show that\nthe defendant owns a dominant share of that market, and\n(3) show that there are significant barriers to entry and show\nthat existing competitors lack the capacity to increase their\noutput in the short run.” Rebel Oil, 51 F.3d at 1434.\n 1. Stewardship Services Market\n In its order granting Defendants’ motions to dismiss the\nFAC, the district court held that Plaintiffs failed to plausibly\n\n3\n Where Plaintiffs plead monopsony power by direct evidence, they must\nallege restricted input, rather than output, and that the input restriction\nresulted in subcompetitive, rather than supracompetitive, prices. See\nRebel Oil, 51 F.3d at 1434.\n\f MALHEUR FOREST FAIRNESS COAL. V. IRON TRIANGLE, LLC 15\n\n\nallege a monopoly in the Stewardship Services Market. The\ncourt reasoned that the federal government is “the only\nbuyer” in the Stewardship Services Market, so the alleged\n“monopoly seller cannot exercise monopoly power to set\nprices because the government can simply walk away from\nthe transaction.” Moreover, the court concluded that Iron\nTriangle lacks the ability to charge the government a\nsupracompetitive price because the Forest Service is bound\nby regulation not to pay an unreasonable price. Finally, the\ndistrict court agreed with Iron Triangle that Plaintiffs cannot\nplead monopoly power in this market because Iron Triangle\ncannot exclude other market players from bidding on the\nrenewal of the Stewardship Contract.\n We disagree with the district court that federal\ngovernment contracting regulations preclude a finding of\nmonopoly power as a matter of law. As relevant here, 36\nC.F.R. § 223.302 requires that stewardship agreements “be\nselected on a best-value basis.” As the Government points\nout, though, the regulation itself says nothing about what the\n“best-value” price must be. And it is possible that, due to\nmarket factors and a supplier’s anticompetitive practices, the\nbest-value price for a given stewardship contract may also\nbe supracompetitive.4\n\n\n\n4\n For example, the Government argues as amicus that lack of competition\nin a given market “may make it difficult for the [government] contracting\nofficer to find other rates to which to compare a monopolist’s proposed\nrates. Or the monopolist’s past supra-competitive prices may be the\nbaseline to which the contracting officer compares the offeror’s proposed\nrates.” And “because contracting officers do not have the tools of\nantitrust enforcement agencies to investigate and uncover\nanticompetitive activity[,]” they simply “may be unaware of\nanticompetitive activity that has affected price offers.”\n\f16 MALHEUR FOREST FAIRNESS COAL. V. IRON TRIANGLE, LLC\n\n\n The other federal regulation relevant here, 48 C.F.R.\n§ 15.402(a), similarly requires the Government to pay\n“reasonable prices” for contracted “supplies and services.”\nBut again, the regulation itself does not define “reasonable”\npricing.5 It also could not prevent a supplier from charging\na supracompetitive price nor eliminate the possibility that the\n“reasonable” price in a particular circumstance is also\nsupracompetitive. And though the Government may be able\nto “walk away” from a transaction based on a\nsupracompetitive price, that does not mean the government\nnecessarily would do so or could do so without cost. Indeed,\nthe district court’s rule makes no exceptions for\ncircumstances where the Government-buyer might not\n“walk away” from a supracompetitive price because it\nunknowingly relied on misrepresentations.\n We therefore conclude that the district court erred in\nholding that a seller cannot exercise monopoly power when\nthe Government is the only buyer and when federal\nregulations restrict the Government to a reasonable or best-\n\n\n\n5\n The regulation does describe the factors the contracting officer must\nconsider “[i]n establishing the reasonableness of the offered prices,”\nincluding the types of cost and pricing data the contracting officer must\nobtain and consider. 48 C.F.R. § 15.402(a). But the contracting officer\nmust still consider this data “as necessary to establish a fair and\nreasonable price.” Id. § 15.402(a)(1), (a)(2); see also id.\n§ 15.402(a)(2)(ii)(A)–(B), (a)(3). The regulation also requires the\ncontracting officer to obtain only “the type and quantity of data necessary\nto establish a fair and reasonable price, but not more data than is\nnecessary.” Id. § 15.402(a)(3). Thus, if supracompetitive pricing is not\nevident on the face of the data, the contracting officer might rely on the\nlimited data before them showing such inflated pricing and ultimately\naccept the contract.\n\f MALHEUR FOREST FAIRNESS COAL. V. IRON TRIANGLE, LLC 17\n\n\nvalue price. 6 However, this conclusion does not save\nPlaintiffs’ Section 2 claim.\n The district court next held that Plaintiffs could not plead\nmonopoly power in the Stewardship Services Market\nbecause Iron Triangle does not have the ability to exclude\nothers from bidding on the renewal of the Stewardship\nContract. Plaintiffs argue that Iron Triangle won the\nStewardship Contract through misrepresentations to the\nGovernment that it would subcontract logging services but\ninstead consolidated those opportunities for itself. That,\nPlaintiffs theorize, then prevented the Logger Plaintiffs and\nPrairie Wood from bidding on a renewed stewardship\ncontract. Plaintiffs further contend that the potential for\nfuture competitive bidding processes for future stewardship\ncontracts does not negate the monopoly power Iron Triangle\nheld during this Stewardship Contract’s ten-year term.\n Plaintiffs’ arguments do not persuade. First, Plaintiffs\ndo not plead their allegations concerning Iron Triangle’s\nmisrepresentations to the Government with the particularity\nrequired by Federal Rule of Civil Procedure 9(b). Plaintiffs\nalleged that Iron Triangle won the Stewardship Contract “by\n\n6\n The district court and Iron Triangle relied on GMA Cover Corp. v. Saab\nBarracuda LLC, 2012 WL 642739 (E.D. Mich. Feb. 8, 2012), report and\nrecommendation adopted, 2012 WL 639528 (E.D. Mich. Feb. 28, 2012),\nbut that case is distinguishable. Saab Barracuda dealt with a potential\nbilateral monopoly, and the selling price was a “ceiling price” that had\nbeen submitted by the seller to the government buyer, the Army, in a\ncompetitive bidding process. Id. at 7–8. The “ceiling price” bid was\nthen accepted by the Army. Id. at 8. Thus, there were no allegations\nthat the ceiling price was supracompetitive. Id. The regulations at issue\nin this case, however, do not set a predetermined ceiling price but rather\nuse subjective terms like “best-value” and “reasonable”—terms which\nnecessarily depend on market conditions, including potential inflation by\ndishonest business partners, as Plaintiffs suggest happened here.\n\f18 MALHEUR FOREST FAIRNESS COAL. V. IRON TRIANGLE, LLC\n\n\nassuring the Forest Service in its written proposal that it\nwould administer the contract in a manner that diversified\nthe local economy and promoted the public interest.” But\nPlaintiffs did not explain the “specific content of the false\nrepresentations.” Swartz v. KPMG LLP, 476 F.3d 756, 764\n(9th Cir. 2007) (quoting Edwards v. Marin Park, Inc., 356\nF.3d 1058, 1066 (9th Cir. 2004)). Absent additional detail,\nPlaintiffs’ theory that Iron Triangle’s misrepresentations to\nthe Forest Service prevented them from bidding on contract\nrenewals is insufficient to satisfy Rule 9(b)’s heightened\npleading standard. See Kearns v. Ford Motor Co., 567 F.3d\n1120, 1124 (9th Cir. 2009); cf. Davidson v. Kimberly-Clark\nCorp., 889 F.3d 956, 964–65 (9th Cir. 2018) (holding that a\nplaintiff adequately pleaded fraud where she alleged\n“flushable” wipes were not actually flushable and explained\nwhy the representation that they were “flushable” was\nplausibly fraudulent using “multiple allegations in the FAC,\nincluding dictionary definitions and Kimberly-Clark’s own\nstatement on its website”).\n Second, “weakening Iron Triangle’s competitors by\nstarving them of . . . opportunities” is conclusory and\notherwise not equivalent to excluding competition entirely.\nPlaintiffs do not plead, for example, that Iron Triangle\nprevented competitors from bidding on a potential renewed\nstewardship contract with the Forest Service. And to the\nextent Plaintiffs’ argument flows from the Stewardship\nContract itself, it is unavailing. The uncontested fact that\nIron Triangle held 100% market share in the Stewardship\nServices Market is insufficient for Plaintiffs to state a claim\nbecause the Stewardship Contract is necessarily an exclusive\ncontract. Plaintiffs cite no authority to the contrary. Thus,\nPlaintiffs have failed to properly plead that Iron Triangle\n“exclude[d] competition” in the Stewardship Services\n\f MALHEUR FOREST FAIRNESS COAL. V. IRON TRIANGLE, LLC 19\n\n\nMarket. Epic Games, 67 F.4th at 998 (quoting Grinnell, 384\nU.S. at 571).\n Plaintiffs fare no better by either direct or circumstantial\nevidence. As for direct evidence, Plaintiffs do not\nsufficiently plead restricted output in the Stewardship\nServices Market. See Rebel Oil, 51 F.3d at 1434. Plaintiffs’\nallegations pertaining to reduced output—that other\ncompanies could not compete for the Stewardship\nContract—fail because Plaintiffs do not allege that Iron\nTriangle prevented competitors from bidding for the existing\nStewardship Contract, nor that competitors would be unable\nto do so if the Forest Service pursues a renewal bidding\nprocess.\n Considering circumstantial evidence, Plaintiffs do not\nsufficiently plead barriers to entry and to expansion.7 See id.\n“A mere showing of substantial or even dominant market\nshare alone” does not suffice. Id. at 1439. Rather, Plaintiffs\n“must show that new rivals are barred from entering the\nmarket and show that existing competitors lack the capacity\nto expand their output to challenge the predator’s high\nprice.” Id. Plaintiffs allege “high barriers to entry” in this\nMarket “due to the need to purchase and maintain\nspecialized heavy equipment and develop the professional\nknowledge and experience to perform such services.” But\nPlaintiffs do not allege either that these costs “were not\nincurred by incumbent firms but [were] incurred by new\nentrants” or that these costs “deter entry while permitting\n[Iron Triangle] to earn monopoly returns.” Id. (citation\nmodified). Nor do Plaintiffs allege that they were\n“prevented from” entering the Stewardship Services Market\n\n7\n The parties do not contest the definition of the Stewardship Services\nMarket nor Iron Triangle’s 100% dominant market share.\n\f20 MALHEUR FOREST FAIRNESS COAL. V. IRON TRIANGLE, LLC\n\n\nas a result. Id. (quoting Syufy, 903 F.2d at 672 n.21). Indeed,\nthe cost of specialized machinery and professional\nknowledge more accurately represent the start-up costs that\nany player in the Stewardship Services Market would\nencounter. See Los Angeles Land Co. v. Brunswick Corp., 6\nF.3d 1422, 1428 (9th Cir. 1993) (“The mere fact that entry\nrequires a large absolute expenditure of funds does not\nconstitute a barrier to entry; a new entrant is disadvantaged\nonly to the extent that he must pay more to attract those funds\nthan would an established firm.” (citation modified)).\n Plaintiffs also do not allege barriers to expansion. To the\nextent that Plaintiffs argue that the barrier to expansion in\nthis market is Iron Triangle’s 100% market share, that is a\ndirect result of the exclusive Stewardship Contract that was\nawarded by the Forest Service through a competitive bidding\nprocess. That process may not be preferred by all Market\nparticipants, but it represents “actual market realities,”\nEastman Kodak, 504 U.S. at 466, given that, as Plaintiffs\nadmit, annual timber supply in the MNF Market Area is\nalmost entirely controlled by the Forest Service.\n For these reasons, we conclude that Plaintiffs have not\nplausibly pleaded a monopoly in the Stewardship Services\nMarket.\n 2. Harvest Rights Market\n The district court next held that Plaintiffs failed to plead\na monopsony in the Harvest Rights Market, and we agree.\nThis Market functions as the inverse of the Stewardship\nServices Market: here, the Government is the only seller,\nwhile Iron Triangle is an alleged monopsony buyer. But\nPlaintiffs’ pleadings suffer the same flaws as in the\nStewardship Services Market.\n\f MALHEUR FOREST FAIRNESS COAL. V. IRON TRIANGLE, LLC 21\n\n\n The district court’s reasoning is also flawed to the extent\nit relies on the preclusive effect of federal regulations on\nantitrust liability. The district court again held that\nregulations relevant to this market—governing the Forest\nService’s ability to sell timber at certain rate values—\nprevent a finding of monopoly because “the government can\nsimply walk away from the transaction.” We disagree with\nthat conclusion, but we affirm on the alternative ground that\nPlaintiffs did not plausibly plead monopoly power in this\nMarket.\n The relevant regulation, 36 C.F.R. § 223.61, requires the\nForest Service to sell timber “for appraised value or\nminimum stumpage rates, whichever is higher” and, barring\nnarrow exceptions for diseased or distressed timber, prevents\nthe Forest Service from selling timber at rates below the\n“minimum stumpage rates.” Like the term “best-value” in\nthe contracting regulation discussed above, see 36 C.F.R.\n§ 223.302, “appraised value” is not a fixed term and may\nwell depend on market input. In turn, market input may be\ninfluenced by a buyer offering artificially subcompetitive\nprices. Indeed, Plaintiffs here allege that the “Forest Service\nconsiders Malheur Lumber’s published log prices in\nappraising the value of its stewardship-based timber sales”\nand that those published prices are “uneconomical to\ncontract loggers and private landowners” (by contrast,\nMalheur Lumber allegedly “privately pay[s] Iron Triangle\nmuch higher prices” for harvested sawlogs). It is therefore\npossible that, as Plaintiffs assert, a monopsony buyer may\nexercise substantial control over factors that influence the\nprice of timber sales consistent with the regulation. In such\ncircumstances, the Forest Service may unknowingly accept\nsubcompetitive prices. The regulations therefore cannot\npreclude antitrust liability as a matter of law.\n\f22 MALHEUR FOREST FAIRNESS COAL. V. IRON TRIANGLE, LLC\n\n\n We do agree, however, with the district court’s\nconclusion that Plaintiffs did not plead monopoly power\nbecause Iron Triangle cannot prevent other buyers from\nbidding for harvest rights. As a result of the Stewardship\nContract, Iron Triangle earned right of first refusal on 70%\nof available timber in the MNF Market Area and, through\nadditional public bidding, has acquired a nearly 95% share\nof the Harvest Rights Market. Plaintiffs argue that Iron\nTriangle’s power in the Harvest Rights Market flows from\nits dominance in the Stewardship Services Market, and Iron\nTriangle does not contest that it possesses the\noverwhelmingly dominant share in both markets.\n However, Plaintiffs also do not deny that Iron Triangle\ncannot prevent other buyers from bidding in open timber\nsales. Indeed, they plead contrary allegations that\ndemonstrate Iron Triangle is not the only successful buyer in\nthe Harvest Rights Market. Two of those successful\nbuyers—Prairie Wood and Rude Logging, LLC (Rude\nLogging)—are Plaintiffs in this action. So, by Plaintiffs’\nown allegations, it is not the case that competitors’ ability to\nbid on the 30% of timber volume offered for sale by the\nForest Service is only nominal.\n Further, market share alone, though significant, is\ninsufficient to plead market power in the Harvest Rights\nMarket. In Eastman Kodak, the Supreme Court held that\nmonopoly power existed where Kodak “control[led] nearly\n100% of the parts market and 80% to 95% of the service\nmarket.” 504 U.S. at 481. Because there were “no readily\navailable substitutes” for both Kodak’s service and parts,\nthat significant market share was “sufficient to survive\nsummary judgment.” Id. There, market share was critical to\nfinding monopoly power because there were no “readily\navailable substitutes” for consumers of Kodak’s services and\n\f MALHEUR FOREST FAIRNESS COAL. V. IRON TRIANGLE, LLC 23\n\n\nparts. Id. Here, however, competitors have access to the\nsame harvest rights as Iron Triangle through the open\nbidding process. As we explained above, weakened\ncompetition is not equivalent to exclusion from competition\nsufficient to state a Section 2 claim. And because Plaintiffs\nhave not alleged that Iron Triangle restricts input in the\nHarvest Rights Market, Plaintiffs do not plead monopsony\npower by direct evidence either.\n Finally, Plaintiffs’ circumstantial-evidence argument\nfails because they do not plead any barriers to expansion, and\nthey do not sufficiently allege barriers to entry.8 Rebel Oil,\n51 F.3d at 1434, 1439. The alleged barriers to entry are: the\nStewardship Contract; Iron Triangle’s alleged predatory\nbidding; and Defendants’ alleged tying arrangement. As\ndiscussed below, Plaintiffs do not plausibly plead a tying\narrangement or a predatory bidding theory. And the\nStewardship Contract itself is not a barrier to entry for the\nremaining 30% of timber sales, which are conducted through\nopen bidding and are not subject to the rights awarded to Iron\nTriangle by the Stewardship Contract.\n In sum, Plaintiffs have not pleaded monopsony power in\nthe Harvest Rights Market.\n 3. Logging Services Market\n The district court held that Plaintiffs failed to plead\nmonopoly power in the Logging Services Market by either\ndirect or circumstantial evidence. Plaintiffs attempt to argue\nby direct evidence that Iron Triangle restricts output in this\nMarket through (1) hoarding federal timber acquired\n\n8\n As with the Stewardship Services Market, the parties do not contest the\nHarvest Rights Market’s definition, nor that Iron Triangle holds the\ndominant market share.\n\f24 MALHEUR FOREST FAIRNESS COAL. V. IRON TRIANGLE, LLC\n\n\nthrough its right of first refusal under the Stewardship\nContract, and (2) eliminating a pine outlet through its alleged\ntying agreement with Malheur Lumber, which affects\ndemand for logging services on private timberland. The\ndistrict court rejected both arguments—as do we.\n First, Plaintiffs’ allegations with respect to the hoarding\nof federal timber are conclusory. Plaintiffs allege only that\n“Iron Triangle has exploited the stewardship contract to\nhoard enormous volumes of forestland timber under contract\n. . . through the use of performance extensions obtained from\nthe Forest Service based on blatant misrepresentations\nundersta[t]ing its logging capacity[.]” Plaintiffs do not offer\nsufficient detail from which to infer “more than the mere\npossibility of misconduct.” Iqbal, 556 U.S. at 679. And\nPlaintiffs fail to plead Iron Triangle’s alleged\nmisrepresentations to the Forest Service with the specificity\nrequired by Federal Rule of Civil Procedure 9(b).\n Plaintiffs’ second direct-evidence argument fails both\nbecause it is not direct evidence of restricted output and\nbecause it is belied by the record. Plaintiffs themselves\nallege that, on federal timberland, the Forest Service\ndetermines whether, and when, to engage a contractor for\nlogging services. Plaintiffs’ assertion that Iron Triangle\nartificially suppressed demand by denying a pine outlet for\nprivate timberland is also conclusory. Plaintiffs do not\nestablish beyond a “mere possibility” that Iron Triangle\nconditioned its sale of pine sawlogs to Malheur Lumber on\nthe latter’s refusal to purchase logging services from\ncompetitors and that this, in turn, caused a decline in logging\nopportunities. Iqbal, 556 U.S. at 679.\n Plaintiffs also do not plead supracompetitive prices in the\nLogging Services Market beyond conclusory allegations.\n\f MALHEUR FOREST FAIRNESS COAL. V. IRON TRIANGLE, LLC 25\n\n\nAlleging a mere “ability to charge supra-competitive prices”\nand “to secure excessively high stewardship and logging\nservices rates” is not sufficient. Thus, Plaintiffs fail to plead\nmonopoly power by direct evidence.\n Plaintiffs fail on circumstantial evidence, too. 9 They\nallege the following barriers to entry and expansion: (1) Iron\nTriangle consolidated logging opportunities on federal\ntimberland, thereby eliminating competitors’ access to such\nopportunities; (2) Defendants’ alleged tying agreement\nforecloses contract logging opportunities on private\ntimberland; (3) there are substantial costs for mobilization of\nheavy, specialized equipment; and (4) timber supply is\ninelastic. None of these allegations is plausibly pleaded.\n With respect to logging opportunities on federal\ntimberland, Plaintiffs acknowledge in the same paragraph of\nthe SAC that “90% of the annual [timber] supply [is]\ncontrolled by the Forest Service and subject to legally\nrequired sustained yield, endangered species and other\nsupply constraints annually.” Accordingly, the Forest\nService largely determines logging opportunities in the MNF\nMarket Area. Because Plaintiffs fail to properly plead a\ntying arrangement, that argument fails as a barrier to entry,\ntoo. 10 Finally, Plaintiffs do not allege that either high\nequipment costs or inelastic supply are barriers that “were\nnot incurred by incumbent firms.” Los Angeles Land Co., 6\nF.3d at 1427. Plaintiffs argue on appeal that already limited\n\n9\n The district court previously held, and the parties do not contest, that\nPlaintiffs properly alleged that the Logging Services Market is an\nantitrust market and that Iron Triangle holds a dominant share.\n10\n Moreover, because the alleged tying agreement began in 2020, it could\nnot have been a barrier to entry in the Logging Services Market in the\nyears prior.\n\f26 MALHEUR FOREST FAIRNESS COAL. V. IRON TRIANGLE, LLC\n\n\ntimber supply has been further limited by Iron Triangle’s\nten-year Stewardship Contract and predatory bidding. But\nPlaintiffs did not allege that Iron Triangle’s competitors\nwould be unable to obtain the same kind of contract with the\nForest Service in future bidding cycles and did not properly\nallege predatory bidding, as discussed below.11\n 4. Softwood Sawlog Market\n Plaintiffs’ allegations of monopoly power in the\nSoftwood Sawlog Market largely mirror their allegations in\nthe Logging Services Market and therefore suffer the same\nfate. Plaintiffs attempt to argue by direct evidence that Iron\nTriangle restricts softwood sawlog output by “hoarding”\nfederal timber under contract and by eliminating sawlog\nharvests on private timberland as a result of the alleged tying\nagreement with Malheur Lumber. Plaintiffs also contend\nthat the Stewardship Contract allows Iron Triangle to obtain\nsawlogs at artificially low prices and to sell them at\nsupracompetitive rates. These arguments fail for the same\nreasons discussed in the upstream Markets.\n Plaintiffs’ alleged barriers to entry and expansion do not\nsuffice to state monopoly power by circumstantial evidence,\n\n\n\n11\n Plaintiffs relatedly challenge the district court’s finding that “Plaintiffs\ncannot bootstrap market power in downstream markets to allegations\nregarding upstream market power or control of a resource Defendant\nIron Triangle does not have.” Plaintiffs assert that the district court failed\nto “appreciate that access to harvestable timber is a necessary predicate\nto the performance of logging services.” That may be, but Plaintiffs did\nnot properly plead market power in the upstream Harvest Rights Market,\neither. Their bootstrapped allegations thus also fail in the Logging\nServices Market.\n\f MALHEUR FOREST FAIRNESS COAL. V. IRON TRIANGLE, LLC 27\n\n\neither. 12 Plaintiffs again point to allegations that timber\nsupply in the MNF Market Area is “highly inelastic” and that\nDefendants’ alleged tying agreement, “under which Malheur\nLumber . . . refuses to purchase pine sawlogs harvested\nwithin the MNF Market Area from a seller other than Iron\nTriangle[,] substantially reduces the level of timber harvest\non private lands[.]” These allegations all fail for the reasons\npreviously discussed.\n Plaintiffs next argue that even if Defendants’\narrangement is not an illegal tying agreement, it has had\nsubstantial, monopolistic effects on the Logging Services\nand Softwood Sawlog Markets. Plaintiffs assert that timber\nsales in the MNF Market Area include a mix of fir and pine\nspecies. Thus, “a local outlet for both species is generally\nnecessary,” and “the lack of a buyer for pine sawlogs”—due\nto the alleged tying agreement—“is a significant barrier to\nlandowners and loggers who would otherwise enter the\nSoftwood Sawlog Market.” But Plaintiffs also alleged that\nPrairie Wood is an outlet for pine sawlogs and did not allege\nany facts that would explain why Prairie Wood does not or\ncannot process pine harvests at a profit. Thus, we conclude\nthat Plaintiffs do not plead facts to state monopoly power in\nthe Softwood Sawlog Market.\n B. Anticompetitive Conduct\n At step two of the monopolization inquiry, Plaintiffs\nmust show anticompetitive conduct. Verizon Commc’ns Inc.\nv. L. Offs. of Curtis V. Trinko, LLP, 540 U.S. 398, 407\n(2004); Epic Games, 67 F.4th at 998. Throughout this\n\n12\n As with the prior Markets, the district court held that Plaintiffs\nsufficiently pleaded the existence of the Softwood Sawlog Market and\nthat Iron Triangle holds a dominant share, and Iron Triangle does not\ndispute these findings.\n\f28 MALHEUR FOREST FAIRNESS COAL. V. IRON TRIANGLE, LLC\n\n\nlitigation, Plaintiffs have raised some combination of the\nfollowing theories of anticompetitive conduct: (1) false\nrepresentations to the Forest Service; (2) predatory bidding\nfor harvest rights; (3) hoarding logging opportunities;\n(4) restraint of trade by way of the alleged tying agreement;\nand (5) refusal to deal. Of these, we address only the\ntheories Plaintiffs appear to maintain on appeal: false\nrepresentations, predatory bidding, and hoarding logging\nopportunities. For the reasons discussed below regarding\nPlaintiffs’ Section 1 claim, Defendants’ alleged tying\narrangement also fails as a theory for anticompetitive\nconduct.\n 1. Misrepresentations to the Forest Service\n Plaintiffs argue that Iron Triangle willfully acquired and\nmaintained its monopolies through false representations to\nthe Forest Service in the process of acquiring the\nStewardship Contract in 2013 and through “maintain[ing] a\npattern of understating its logging capacity and financial\nperformance to accumulate timber under contract and obtain\npreferential service rates[.]” These allegations seemingly\napply to the Stewardship Services Market, the Harvest\nRights Market, and the Logging Services Market. See Syufy,\n903 F.2d at 672 n.22.\n Plaintiffs do not meet their heightened pleading\nobligations under Federal Rule of Civil Procedure 9(b),\nwhich applies to their allegations concerning “fraudulent\nrepresentations to the Forest Service.” See Vess v. Ciba-\nGeigy Corp. USA, 317 F.3d 1097, 1104 (9th Cir. 2003)\n(explaining that Rule 9(b) applies to any “allegations of\nfraud” in a complaint alleging “some fraudulent and some\nnon-fraudulent conduct”). Rule 9(b) requires Plaintiffs to\n“state with particularity the circumstances constituting fraud\n\f MALHEUR FOREST FAIRNESS COAL. V. IRON TRIANGLE, LLC 29\n\n\nor mistake.” Fed. R. Civ. P. 9(b). However, Plaintiffs\nadduce no nonconclusory detail on the nature of the alleged\nmisrepresentations “that systematically understated” Iron\nTriangle’s logging capacity and “financial performance”—\nonly that Iron Triangle made these allegedly false\nstatements.13\n 2. Predatory Bidding\n Plaintiffs next argue that Iron Triangle engaged in\npredatory bidding to consolidate its hold on the Harvest\nRights, Logging Services, and Softwood Sawlog Markets.\n“In a predatory-bidding scheme, a purchaser of inputs bids\nup the market price of a critical input to such high levels that\nrival buyers cannot survive (or compete as vigorously) and,\nas a result, the predating buyer acquires (or maintains or\nincreases its) monopsony power.” Weyerhaeuser Co. v.\nRoss-Simmons Hardwood Lumber Co., Inc., 549 U.S. 312,\n320 (2007) (citation modified). “If all goes as planned, the\npredatory bidder will reap monopsonistic profits that will\noffset any losses suffered in bidding up input prices.” Id. at\n321. Predatory bidding schemes “‘are rarely tried, and even\nmore rarely successful.’” Id. at 323 (quoting Brooke Grp.\nLtd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209,\n\n13\n For example, Plaintiffs make an attempt at detail by alleging that,\n“with respect to the service rates charged to the Forest Service under\nTask Order 2, Iron Triangle falsely represented that it had lost substantial\nsums during the first year of performance under the 10-year stewardship\ncontract and used those false representations to secure an excessive\naggregate service rate of approximately $63 per ton to harvest, remove\nand truck logs to sawmill purchasers.” But Plaintiffs do not plead other\n“factual matter” to explain why these statements were false or that they\nwere the reason Iron Triangle secured the $63-per-ton service rate. See\nRick-Mik Enters., Inc. v. Equilon Enters. LLC, 532 F.3d 963, 970 (9th\nCir. 2008).\n\f30 MALHEUR FOREST FAIRNESS COAL. V. IRON TRIANGLE, LLC\n\n\n226 (1993)). To succeed on this theory, Plaintiffs must\nplausibly allege that (1) Iron Triangle bid for harvest rights\nat a loss, and (2) Iron Triangle would have a “dangerous\nprobability of recouping the losses incurred in bidding up\ninput prices through the exercise of monopsony power.” Id.\nat 325.\n Regarding the first element, Plaintiffs argue that they\nspecifically pleaded facts related to Iron Triangle’s bidding.\nThe SAC includes allegations related to several timber sales:\nthe Conroy sale, the Coxie sale, the R & R sale, and the Ruby\nsale. According to Plaintiffs, each resulted in a loss for Iron\nTriangle. For each sale, Plaintiffs determined the alleged\nloss based on the difference between the value of the timber\nat purchase and Iron Triangle’s costs of performing that sale.\nIron Triangle argues that Plaintiffs were required to allege\nfacts demonstrating that Iron Triangle ultimately sold at a\nloss, rather than the value of the timber sales at the time of\npurchase. Plaintiffs respond that at the pleading stage, it is\nreasonable to infer that the value of the commodities\npurchased is a fair proxy for sales revenue.\n In theory, Plaintiffs make a reasonable argument. On\ntheir face, Plaintiffs’ allegations demonstrating the values of\nseveral timber sales represent estimates that approximate the\ncost differential between Iron Triangle’s acquisition of\ntimber and costs for “stumpage, logging and truck hauling.”\nFor each timber sale, Plaintiffs thus allege specific figures\nsuggesting that Iron Triangle incurred a loss. Cf. Valassis\nCommc’ns, Inc. v. News Corp., 2019 WL 802093, at 8\n(S.D.N.Y. Feb. 21, 2019) (finding that “evidence of below-\ncost pricing related to a single bid for a single contract is not\nsufficient to support a predatory bidding claim” (citation\nmodified)).\n\f MALHEUR FOREST FAIRNESS COAL. V. IRON TRIANGLE, LLC 31\n\n\n On the other hand, however, “the exclusionary effect of\nprices above a relevant measure of cost [may] reflect[] the\nlower cost structure of the alleged predator, and so represents\ncompetition on the merits.” Weyerhaeuser, 549 U.S. at 319\n(citation modified). The Supreme Court has therefore\ncautioned that courts must be “particularly wary of allowing\nrecovery for above-cost price cutting because allowing such\nclaims could, perversely, chill legitimate price cutting,\nwhich directly benefits consumers.” Id. (citation modified).\n Ultimately, we need not determine if Plaintiffs have\nplausibly alleged that Iron Triangle bid at a loss because the\ndangerous-probability element dooms their predatory\nbidding theory. Plaintiffs point to Iron Triangle’s 90% or\ngreater market shares in the Logging Services and Softwood\nSawlog Markets to argue that “there has been and will be\nabundant opportunity to recoup the costs of the predatory\nbidding,” even through “modest[ly]” “increased prices for\nlogging services and increased softwood sawlog prices.”\nFirst, an “abundant opportunity to recoup” Iron Triangle’s\nlosses is conclusory, so these allegations do not suffice.\nMore critically, however, Plaintiffs’ allegations rely solely\non Iron Triangle’s dominant market share in the Logging\nServices and Softwood Sawlog Markets. But it follows\nlogically that an incumbent firm with a substantial market\nshare could recoup losses incurred through meritorious\ncompetitive bidding by modestly raising prices elsewhere in\nits business. Without more, this cannot be sufficient to plead\npredatory bidding—the result would effectively reduce the\nquestion to a mere market share inquiry. Plaintiffs therefore\ndo not clear the high bar required to state a predatory bidding\nscheme.\n\f32 MALHEUR FOREST FAIRNESS COAL. V. IRON TRIANGLE, LLC\n\n\n 3. Hoarding Logging Opportunities\n Plaintiffs similarly do not plead that Iron Triangle\nhoarded logging opportunities. Plaintiffs allege that in the\nfirst year of the Stewardship Contract, Iron Triangle\nsubcontracted logging services to other loggers, including\nPlaintiffs Rude Logging and Engle Contracting, LLC\n(Engle). However, the following year, Iron Triangle offered\ncontracts to the same group of loggers but at reduced rates.\nWhile Rude Logging accepted the reduced contract rate in\n2014, Engle declined the new rates. Plaintiffs allege that\n“[i]n presenting uneconomic logging service contracts to\ncontract loggers in 2014 through 2016, Iron Triangle was\npursuing a deliberate anticompetitive strategy to eliminate\nthese loggers from competing with Iron Triangle in the MNF\nMarket Area and to acquire those contract logging\nopportunities for itself through vertical integration.” Even\ntaking as true the allegations that Iron Triangle reduced its\nlogging subcontract rates, “facts that are merely consistent\nwith a defendant’s liability . . . stop[] short of the line\nbetween possibility and plausibility of entitlement to relief.”\nIqbal, 556 U.S. at 678 (citation modified). Plaintiffs do not\nallege specific facts to support the theory that reduced rates\nwere utilized as an anticompetitive tactic—just that the rates\nwere reduced and that the Logger Plaintiffs refused to accept\nthem. Asserting that doing so was “a deliberate\nanticompetitive strategy” merely repeats an element of the\ncause of action and thus does not suffice. See id. at 679.\n C. Antitrust Injury\n The final element of Plaintiffs’ monopolization claim is\ncausal antitrust injury. See Allied Orthopedic Appliances\nInc. v. Tyco Health Care Grp. LP, 592 F.3d 991, 998 (9th\nCir. 2010). “[T]he fact of injury or damage must be alleged\n\f MALHEUR FOREST FAIRNESS COAL. V. IRON TRIANGLE, LLC 33\n\n\nat the pleading stage.” Somers, 729 F.3d at 963. To state\nantitrust injury, Plaintiffs must plead: “(1) unlawful conduct,\n(2) causing an injury to the plaintiff, (3) that flows from that\nwhich makes the conduct unlawful, . . . (4) that is of the type\nthe antitrust laws were intended to prevent[,]” and (5) “that\nthe injured party be a participant in the same market as the\nalleged malefactors,” either as a consumer or a competitor.\nId. (citation modified). With respect to the fourth element,\nour court has held that “the antitrust laws are only intended\nto preserve competition for the benefit of consumers.” Am.\nAd Mgmt., Inc. v. Gen. Tel. Co. of Cal., 190 F.3d 1051, 1055\n(9th Cir. 1999). We conclude that Plaintiffs do not state\nantitrust injury in any of the four Markets.\n 1. Stewardship Services Market\n Neither the Landowner Plaintiffs nor Prairie Wood are\nparticipants in the Stewardship Services Market, so we\nassess antitrust injury in this Market only as to the Logger\nPlaintiffs. Plaintiffs allege generally that Iron Triangle\nforeclosed contract loggers from the Stewardship Services\nMarket and that Iron Triangle foreclosed stewardship\nopportunities on private forestland in the MNF Market Area.\n“[C]onduct that eliminates rivals reduces competition,” but\n“reduction of competition does not invoke the Sherman Act\nuntil it harms consumer welfare.” Rebel Oil, 51 F.3d at\n1433. Plaintiffs have not alleged harm to consumers, rather\nthan to individual competitors, and these allegations are\notherwise conclusory. Moreover, the Stewardship Contract\nitself is not a proper source of antitrust injury here. To the\nextent Plaintiffs allege that injury flows from Iron Triangle\nwinning the Stewardship Contract, Plaintiffs “would have\nsuffered the same injury had [any other business] acquired\nthe exclusive right” to perform stewardship services on\nfederal land in the MNF Market Area. Lucas Auto. Eng’g,\n\f34 MALHEUR FOREST FAIRNESS COAL. V. IRON TRIANGLE, LLC\n\n\nInc. v. Bridgestone/Firestone, Inc., 140 F.3d 1228, 1233 (9th\nCir. 1998).14 Any exclusive contract “has the potential for\nproducing economic readjustments that adversely affect\nsome persons,” but that does not necessarily rise to the level\nof unlawful conduct. Brunswick Corp. v. Pueblo Bowl-O-\nMat, Inc., 429 U.S. 477, 487 (1977). Thus, Plaintiffs have\nnot pleaded antitrust injury in the Stewardship Services\nMarket.\n 2. Harvest Rights Market\n Plaintiffs do not allege antitrust injury in the Harvest\nRights Market with respect to the Landowner Plaintiffs, so\nwe assess injury in this Market as to the Logger Plaintiffs\nand Prairie Wood only. On appeal, Plaintiffs assert that the\nLogger Plaintiffs were foreclosed from access to harvest\nrights and standing timber by Iron Triangle’s predatory\nbidding. Of the Logger Plaintiffs, however, Plaintiffs allege\nonly that Rude Logging and Engle are “engaged in the\nbusiness of purchasing public timber sales.” And Plaintiffs\nallege facts related only to Rude Logging’s injury in the\nHarvest Rights Market.\n As discussed above, Plaintiffs do not adequately plead\ntheir predatory bidding theory. And, for purposes of the\ninjury analysis, Plaintiffs must allege more than the mere\nfact that Rude Logging lost several bids. For example,\nPlaintiffs allege that “Rude Logging was one of the top\nunsuccessful bidders on three of . . . four predatorially bid\ntimber sales”—but absent allegations that Rude Logging\n\n14\n At oral argument on Defendants’ motion to dismiss the FAC, Plaintiffs\nacknowledged that “it wasn’t a violation of the antitrust laws for Iron\nTriangle to have won the stewardship contract in 2012, and . . . nowhere\ndo we contend in the complaint that that was a violation of the antitrust\nlaws.”\n\f MALHEUR FOREST FAIRNESS COAL. V. IRON TRIANGLE, LLC 35\n\n\nwas the second highest bidder, and therefore would have\nwon the bid if Iron Triangle had not, Plaintiffs have not\ndemonstrated causal injury.\n With respect to Prairie Wood, Plaintiffs assert that the\ndenial of a pine outlet through Iron Triangle’s agreement\nwith Malheur Lumber forecloses a substantial portion of the\nSoftwood Sawlog Market, which in turn drives up Prairie\nWood’s costs and reduces its ability to bid for harvest rights.\nBut the antitrust laws “were enacted for the protection of\ncompetition, not competitors.” Brunswick, 429 U.S. at 488\n(citation modified). Plaintiffs do not allege facts to support\nthe inference that all competition in open-bid sales was\ninjured by Iron Triangle’s bidding. Additionally, and as\ndiscussed, Iron Triangle does not control public bidding for\nharvest rights; the Forest Service does. Thus, Plaintiffs do\nnot plausibly state that Prairie Wood’s injuries in the Harvest\nRights Market flowed from Iron Triangle’s unlawful\nconduct.\n 3. Logging Services and Softwood Sawlog\n Markets\n In the Logging Services Market, Plaintiffs allege\nantitrust injury with respect to the Logger Plaintiffs and the\nLandowner Plaintiffs. The Logger Plaintiffs argue that they\nwere foreclosed from selling logging services to private\nlandowners and to Malheur Lumber through Defendants’\nalleged tying agreement and therefore suffered lost profits.\nHowever, Plaintiffs also alleged that Iron Triangle did offer\nlogging subcontracts to the Logger Plaintiffs, albeit at\nreduced rates. Plaintiffs do not explain how Iron Triangle’s\nreduced rates injured all competition in the Logging Services\nMarket. Moreover, as the district court explained,\n“[s]eeking the lowest possible price for subcontracts is pro-\n\f36 MALHEUR FOREST FAIRNESS COAL. V. IRON TRIANGLE, LLC\n\n\ncompetitive behavior, which in the end, should lower the\ncosts of the product for consumers.” And with respect to the\nalleged tying agreement, the district court correctly\nconcluded that Malheur Lumber’s decision to purchase\nlogging services from Iron Triangle is not antitrust injury\nbecause the antitrust laws’ prohibitions “focus on protecting\nthe competitive process and not on the success or failure of\nindividual competitors.”\n The Landowner Plaintiffs, who are buyers in the\nLogging Services Market, argue that but for the alleged tying\nagreement, they would have retained contract loggers to\nharvest their timber and that the alleged agreement denied\nthem these opportunities. But they also alleged that Prairie\nWood is an outlet for pine sawlogs and that Malheur Lumber\nhas offered to purchase pine at cost. Thus, Plaintiffs do not\nstate anticompetitive injury in the Logging Services Market.\n Finally, Plaintiffs contend that the Logger Plaintiffs,\nLandowner Plaintiffs, and Prairie Wood all incurred the\nsame injury in the Softwood Sawlog Market. The alleged\ninjury, and Plaintiffs’ related allegations, all mirror the\nallegations made regarding the Logging Services Market\nbecause all concern Iron Triangle’s alleged foreclosure of a\npine outlet. Accordingly, we reject Plaintiffs’ arguments for\nthe same reasons and conclude that Plaintiffs fail to state\nanticompetitive injury in this Market, too.\n **\n In sum, Plaintiffs do not properly plead a monopolization\nclaim under Section 2 of the Sherman Act for any of the four\nMarkets in the MNF Market Area, and we affirm the district\ncourt’s grant of Defendants’ motions to dismiss.\n\f MALHEUR FOREST FAIRNESS COAL. V. IRON TRIANGLE, LLC 37\n\n\n II. Conspiracy in Restraint of Trade\n Plaintiffs allege that Defendants have entered into an\nillegal tying arrangement “under which Malheur Lumber\nrefuses to purchase pine sawlogs produced in the MNF\nMarket Area from sellers other than Iron Triangle, in order\nto foreclose their ability to sell pine sawlogs locally and\nthereby undermine their ability to compete with Iron\nTriangle” in the Logging Services and Softwood Sawlog\nMarkets. Plaintiffs’ allegations cannot survive a motion to\ndismiss.\n “A tying arrangement is an agreement by a party to sell\none product but only on the condition that the buyer also\npurchases a different (or tied) product, or at least agrees that\nhe will not purchase that product from any other supplier.”\nEastman Kodak, 504 U.S. at 461 (citation modified). “Not\nall tying arrangements are illegal.” Rick-Mik Enters., Inc. v.\nEquilon Enters. LLC, 532 F.3d 963, 971 (9th Cir. 2008).\nTying arrangements may be unlawful per se or may be\nanalyzed under the rule of reason. Teradata Corp. v. SAP\nSE, 124 F.4th 555, 564–65 (9th Cir. 2024).\n To survive a motion to dismiss for a per se unlawful\ntying arrangement, a plaintiff must plead: “(1) that the\ndefendant tied together the sale of two distinct products or\nservices; (2) that the defendant possesses enough economic\npower in the tying product market to coerce its customers\ninto purchasing the tied product; and (3) that the tying\narrangement affects a not insubstantial volume of commerce\nin the tied product market.” Cascade Health Sols. v.\nPeaceHealth, 515 F.3d 883, 913 (9th Cir. 2008) (citation\nmodified). “Typically only ‘horizontal’ restraints—\nrestraints ‘imposed by agreement between competitors’—\nqualify as unreasonable per se.” Teradata Corp., 124 F.4th\n\f38 MALHEUR FOREST FAIRNESS COAL. V. IRON TRIANGLE, LLC\n\n\nat 564 (quoting Ohio v. Am. Express Co., 585 U.S. 529, 540–\n41 (2018)).\n The first element of the per se test is the sale of two\ndistinct products. Plaintiffs here allege that Iron Triangle\n“tied its willingness to supply all of Malheur Lumber’s pine\nsawlog requirements to Malheur Lumber’s agreement not to\npurchase logging services from any party other than Iron\nTriangle.” Determining “whether one or two products are\ninvolved turns . . . on the character of the demand for the two\nitems” and therefore depends on whether the products are\n“distinguishable in the eyes of buyers.” Jefferson Parish\nHosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 19 (1984), abrogated\nin part on other grounds by Ill. Tool Works Inc. v. Indep. Ink,\nInc., 547 U.S. 28 (2006). The district court here held that\n“logging services and sawlogs are not two distinct products\nwith distinct markets” because, from Malheur Lumber’s\nperspective, both “provide it with the sole product it needs\nfor its mill – sawlogs.”\n The district court was correct. Applying the purchaser-\ndemand test from Jefferson Parish, the relevant inquiry is\nwhether the market for logging services is separate from the\nmarket for sawlogs from Malheur Lumber’s perspective.\nSee Rick-Mik Enters., 532 F.3d at 975. Here, the service that\ngenerates the product is necessarily linked to that product.\nThough Malheur Lumber could theoretically purchase\nsawlogs and the services required to cut trees into sawlogs\nfrom different sources, in the end, Malheur Lumber has still\nobtained a single product—sawlogs. Put another way,\nabsent its need for sawlogs, Malheur Lumber, a sawmill,\nwould have no need for logging services. See Epic Games,\n67 F.4th at 995 (noting that “the existence of separate\nproducts is inferred from ‘more readily observed facts’” and\ncircumstantial evidence (quoting Phillip E. Areeda &\n\f MALHEUR FOREST FAIRNESS COAL. V. IRON TRIANGLE, LLC 39\n\n\nHerbert Hovenkamp, Fundamentals of Antitrust Law ¶\n1745c (4th ed. 2017))).\n Plaintiffs rest their argument on our decision in Reid\nBrothers Logging Company v. Ketchikan Pulp Company,\n699 F.2d 1292 (9th Cir. 1983). There, we affirmed the\ndistrict court’s finding of an antitrust conspiracy in violation\nof Section 1, and we observed that there were several\nseparate product markets: the sale of standing timber, the\nsale of logs by independent loggers, the sale of logging\nservices by contract loggers, and the processing of logs by\npulp plants and sawmills. Id. at 1295. However, that case\ndid not concern a tying arrangement and so did not analyze\nthe elements of a tying claim, including the requirement for\ndistinct products. Reid Brothers also preceded Jefferson\nParish so, in any event, we had no occasion to apply the\npurchaser-demand test there.\n Additionally, “even where a transaction involves\nseparate products, it is not necessarily a tie; the seller must\nalso ‘force the buyer into the purchase of a tied product that\nthe buyer either did not want at all, or might have preferred\nto purchase elsewhere on different terms.’” Epic Games, 67\nF.4th at 995 (quoting Jefferson Parish, 466 U.S. at 12).\nThus, “coercion is often the touchstone issue in assessing a\nclaim of illegal tying.” Cascade Health, 515 F.3d at 914.\nHere, Plaintiffs have not pleaded facts to suggest that\nMalheur Lumber was forced to purchase logging services\nfrom Iron Triangle rather than from other loggers. On the\ncontrary, both Defendants contend their agreement was a\nvoluntary contract entered into because Iron Triangle had\nenough lumber to fulfill all of Malheur Lumber’s pine\nsawlog requirements for over two years. Moreover, it is\nunsurprising that a buyer of sawlogs might wish to purchase\nlogging services from the same supplier. After all, “[b]uyers\n\f40 MALHEUR FOREST FAIRNESS COAL. V. IRON TRIANGLE, LLC\n\n\noften find package sales attractive.” Jefferson Parish, 466\nU.S. at 12. And on the flip side, “a seller’s decision to offer\nsuch packages can merely be an attempt to compete\neffectively—conduct that is entirely consistent with the\nSherman Act.” Id. Plaintiffs therefore do not plead a per se\ntying agreement.\n Turning to the rule of reason, the analysis is “essentially\nthe same” as the anticompetitive-conduct inquiry for a\nmonopolization claim under Section 2. FTC v. Qualcomm\nInc., 969 F.3d 974, 991 (9th Cir. 2020); accord Epic Games,\n67 F.4th at 998; Brantley v. NBC Universal, Inc., 675 F.3d\n1192, 1197 (9th Cir. 2012). The district court concluded that\nPlaintiffs’ allegations of unlawful behavior could equally\nsuggest legitimate business behavior. On appeal, Plaintiffs\nargue that Defendants’ tying arrangement is anticompetitive\nbecause “in an open market, a rational sawmill would\nwelcome additional logging service and sawlog output from\nmultiple sellers to stimulate price competition and reduce its\ncosts”; likewise, a rational seller of sawlogs and logging\nservices “would welcome the entry of a new sawmill like\nPrairie Wood . . . as a significant new customer.” However,\n“[b]usinesses may choose the manner in which they do\nbusiness absent an injury to competition,” Brantley, 675\nF.3d at 1202, including by choosing to contract exclusively.\nThus, it is not sufficient under the rule of reason to allege\nmerely that “parties have entered into a contract that limits\nsome freedom of action.” Id.; see also Bd. of Trade of City\nof Chicago v. United States, 246 U.S. 231, 238 (1918)\n(“Every agreement concerning trade, every regulation of\ntrade, restrains. To bind, to restrain, is of their very\nessence.”). For the reasons discussed pertaining to\nPlaintiffs’ Section 2 claim, Plaintiffs have not properly\n\f MALHEUR FOREST FAIRNESS COAL. V. IRON TRIANGLE, LLC 41\n\n\npleaded anticompetitive conduct or antitrust injury, so their\nSection 1 claim also fails under the rule of reason.\n III. Leave to Amend\n Lastly, we address the district court’s denial of leave to\namend Plaintiffs’ complaint for a third time. A party may\namend its pleading once as a matter of course and then “only\nwith the opposing party’s written consent or the court’s\nleave.” Fed. R. Civ. P. 15(a)(1)–(2). A district court may\ndeny leave to amend in its discretion when amendment\nwould be futile. Parents for Priv. v. Barr, 949 F.3d 1210,\n1221 (9th Cir. 2020). “Under futility analysis, dismissal\nwithout leave to amend is improper unless it is clear, upon\nde novo review, that the complaint could not be saved by any\namendment.” United States v. Corinthian Colls., 655 F.3d\n984, 995 (9th Cir. 2011) (citation modified).\n The district court concluded that future amendments\nwould be futile and therefore denied leave to amend.\nPlaintiffs contend that the court offered almost no reasoning\nto explain why Plaintiffs could not cure the pleading\ndeficiencies, but the court explained that Plaintiffs had\nalready filed three complaints and that, in dismissing the\nFAC, the court “walked through each element of Plaintiffs’\nclaims and provided guidance to Plaintiffs on how to cure\nthe identified deficiencies.” The district court determined\nthat, on their third attempt, Plaintiffs failed to do so.\nPlaintiffs have not demonstrated “how they could amend\ntheir complaint to remedy the . . . deficiencies in their\nclaims”; instead, they argue “that their complaint, as\ncurrently alleged, is sufficient to state their claims.” Parents\nfor Priv., 949 F.3d at 1239; see also Election Integrity\nProject Cal., Inc. v. Weber, 113 F.4th 1072, 1099–1100 (9th\nCir. 2024) (affirming denial of leave to amend where\n\f42 MALHEUR FOREST FAIRNESS COAL. V. IRON TRIANGLE, LLC\n\n\nplaintiff failed to identify “any factual allegation or legal\ntheory it would advance in a fourth complaint that would\ncure the deficiencies found by the district court” and did not\nexplain “why any such allegations or theories would have\nbeen previously unavailable to it”). Thus, the district court\ndid not abuse its discretion by denying Plaintiffs leave to\namend their complaint for a third time.\n CONCLUSION\n For the foregoing reasons, we conclude that Plaintiffs do\nnot state either of their federal antitrust claims and that\nfurther amendments to the complaint would be futile.\n AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11240442/", "author_raw": "M. SMITH, Circuit Judge:"}]}	MILAN D SMITH JR	JACQUELINE H NGUYEN	HOLLY A THOMAS	1		{"MILAN D SMITH JR": ", Circuit", "JACQUELINE H NGUYEN": ", Circuit", "HOLLY A THOMAS": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10773857/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,773,858	Howard v. Republican National Committee	2026-01-13	23-3826	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Johnnie B. Rawlinson and Daniel P. Collins, Circuit Judges, and Sidney A. Fitzwater, District Judge.", "parties": "", "opinions": [{"author": "COLLINS, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\nJACOB HOWARD, for himself and on No. 23-3826\nbehalf of all others similarly situated,\n\n Plaintiff-Appellant, D.C. No.\n 2:23-cv-00993-\n v. SPL\n\nREPUBLICAN NATIONAL\nCOMMITTEE, a Political Action OPINION\nCommittee,\n\n Defendant-Appellee.\n\n\n Appeal from the United States District Court\n for the District of Arizona\n Steven P. Logan, District Judge, Presiding\n\n Argued and Submitted September 11, 2024\n Phoenix, Arizona\n\n Filed January 13, 2026\n\n Before: Johnnie B. Rawlinson and Daniel P. Collins,\n Circuit Judges, and Sidney A. Fitzwater, District Judge.\n\n\n The Honorable Sidney A. Fitzwater, United States District Judge for\nthe Northern District of Texas, sitting by designation.\n\n2 HOWARD V. REPUBLICAN NAT’L COMM.\n\n\n Opinion by Judge Collins;\n Dissent by Judge Rawlinson\n\n\n SUMMARY\n\n\n Telephone Consumer Protection Act\n\n Affirming the district court’s dismissal, for failure to\nstate a claim, of a putative class action, the panel held that\nthe Telephone Consumer Protection Act does not prohibit,\nabsent prior express consent, the sending of text messages\ncontaining video files.\n The TCPA generally makes it unlawful, absent the “prior\nexpress consent of the called party,” (1) “to make any\ncall . . . using . . . an artificial or prerecorded voice . . . to any\ntelephone number assigned to a . . . cellular telephone\nservice; or (2) “to initiate any telephone call to any\nresidential telephone line using an artificial or prerecorded\nvoice to deliver a message.” See 47 U.S.C.\n§§ 227(b)(1)(A)(iii), 227(b)(1)(B). By its plain terms, the\nstatutory text in § 227(b)(1)(A)(iii) and § 227(b)(1)(B) only\nreaches the use of prerecorded voices in the manner in which\na call is begun. Although the text message at issue in this\ncase contained a video file, the recipient of the text message\nhad to affirmatively act, after receiving the message, to\nchoose to listen to the video. Because the resulting “call”\nwas made and initiated without the playing of a prerecorded\nvoice, it did not violate these provisions.\n\n\n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\n HOWARD V. REPUBLICAN NAT’L COMM. 3\n\n\n Dissenting, Judge Rawlinson disagreed with majority’s\nconclusion that the text message sent in this case, which\nincluded a video file, did not come within the protections of\nthe TCPA.\n\n\n\n COUNSEL\n\nJon L. Phelps (argued), Phelps & Moore PLLC, Scottsdale,\nArizona; Shannon A. Lindner, Shannon Lindner Law PLLC,\nPhoenix, Arizona; for Plaintiff-Appellant.\nDallin B. Holt (argued), Drew C. Ensign, and Brennan A.R.\nBowen, Holtzman Vogel Baran Torchinsky & Josefiak\nPLLC, Phoenix, Arizona; Jonathan Lienhard, Holtzman\nVogel Baran Torchinsky & Josefiak PLLC, Haymarket,\nVirginia; for Defendant-Appellee.\nMegan Iorio and Chris Frascella, Electronic Privacy\nInformation Center, Washington, D.C., for Amici Curiae\nElectronic Privacy Information Center and the National\nConsumer Law Center.\n\n4 HOWARD V. REPUBLICAN NAT’L COMM.\n\n\n OPINION\n\nCOLLINS, Circuit Judge:\n\n As relevant here, § 227 of the Communications Act of\n1934, as added by the Telephone Consumer Protection Act\nof 1991 (“TCPA”), generally makes it unlawful, absent the\n“prior express consent of the called party,” (1) “to make any\ncall . . . using . . . an artificial or prerecorded voice . . . to any\ntelephone number assigned to a . . . cellular telephone\nservice,” 47 U.S.C. § 227(b)(1)(A)(iii); or (2) “to initiate any\ntelephone call to any residential telephone line using an\nartificial or prerecorded voice to deliver a message,” id.\n§ 227(b)(1)(B).1 As stated in the TCPA itself, these\nprovisions were aimed at eliminating the “nuisance” and\n“invasion of privacy” associated with answering a call only\nto hear a “prerecorded” voice rather than a live person. See\nTCPA, Pub. L. No. 102-243, § 2(10), 47 U.S.C. § 227 note.\nThe question presented in this case is whether these\nprovisions should be construed to also prohibit, absent prior\nexpress consent, the sending of text messages containing\nvideo files, even when the recipient must affirmatively act,\nafter receiving the message, to choose to listen to the video.\nBecause such a reading of the TCPA would be inconsistent\nwith the statutory text, we affirm the district court’s\njudgment dismissing the complaint in this case.\n\n\n\n1\n Although the TCPA was a 1991 statute that added § 227 to the\nCommunications Act, and although subsequent amendments to § 227 are\ntherefore amendments to the Communications Act and not to the\n“TCPA” itself, see, e.g., Pub. L. No. 116-105, § 3(a), 133 Stat. 3274,\n3274 (2019), it has become customary to refer to § 227, even in its\ncurrent form, as the “TCPA.” We will follow the same practice here.\n\n HOWARD V. REPUBLICAN NAT’L COMM. 5\n\n\n I\n A\n Because the district court dismissed Howard’s lawsuit\nunder Federal Rule of Civil Procedure 12(b)(6), we must\ntake as true the complaint’s well-pleaded factual allegations\nand draw all reasonable inferences in favor of Howard. See\nShields v. Credit One Bank, N.A., 32 F.4th 1218, 1220 (9th\nCir. 2022). Under those standards, we assume the following\nfacts to be true for purposes of this appeal.\n Howard is a resident of Arizona, and his personal cell\nphone serves as his residential telephone line. On October\n24, 2020, during the final weeks of the presidential election\ncampaign, the Republican National Committee (“RNC”)\n“placed, or caused to be placed, an automated text message\nto Howard’s cellular telephone number.” The text message,\nwhich purported to relay a message from President Trump’s\ndaughter Ivanka, consisted of written text, together with an\naccompanying video file. The written portion of the text\nmessage, which consisted of a few sentences and a URL link,\nwas as follows:\n\n Ivanka’s message...\n We’re in the fight for the future of our\n Country. It all depends on your VOTE. Find\n your Early Voting location NOW:\n earlyvote.us/gDasyFs_s\n\nThe text message’s accompanying video file “was\nautomatically downloaded to Howard’s phone.” The video\nappeared above the written words of the text message as a\nstill-image thumbnail of Ivanka Trump, with a play button\noverlaid on the image. See generally United States v. Arce,\n\n6 HOWARD V. REPUBLICAN NAT’L COMM.\n\n\n49 F.4th 382, 388 n.4 (4th Cir. 2022) (“A thumbnail is a\nreduced-size version of a frame in a video.”). As depicted in\nthe complaint, the text message and accompanying video file\nappeared as follows on Howard’s phone:\n\n\n\n\nHoward alleges that the video “contained an artificial or\nprerecorded voice.”\n Although the video downloaded automatically onto\nHoward’s phone, Howard does not allege that the video\nplayed automatically. On the contrary, Howard conceded at\noral argument that a recipient of this text message must tap\nthe play button or the still-image thumbnail to play the video.\nCf. United States v. Frommelt, 971 F.3d 823, 828 (8th Cir.\n2020) (summarizing testimony that a video sent as a message\non Facebook was shown as a thumbnail with a play button\noverlaid and started playing only after the play button was\nclicked).\n\n HOWARD V. REPUBLICAN NAT’L COMM. 7\n\n\n Howard considered the text message to be an invasion of\nhis privacy. The message was “unsolicited,” and at no point\nhad Howard “provide[d] [the RNC] with his express consent\nto be contacted by telephone using an artificial or\nprerecorded voice.” “It is unknown how [the RNC] obtained\n[Howard’s] Number.” The complaint further alleged, on\ninformation and belief, that the text message sent to Howard\nwas part of a broader campaign targeting Arizona residents.\n B\n Howard filed this putative class action, asserting two\nstatutory claims under § 227(b)(3)’s private right of action.\nSee 47 U.S.C. § 227(b)(3) (providing a private right of action\nfor violations of § 227(b)); see also Mims v. Arrow Fin.\nServs., LLC, 565 U.S. 368, 372 (2012) (holding that “federal\nand state courts have concurrent jurisdiction over private\nsuits arising under the TCPA”). Specifically, Howard\nalleged that the RNC’s unsolicited text message to him\nviolated both § 227(b)(1)(A)(iii)’s general prohibition on\n“mak[ing] any call” to a cellular telephone number “using\n. . . an artificial or prerecorded voice” and § 227(b)(1)(B)’s\ngeneral prohibition on “initiat[ing] any telephone call to any\nresidential telephone line using an artificial or prerecorded\nvoice.” 47 U.S.C. §§ 227(b)(1)(A)(iii), 227(b)(1)(B). These\nclaims were asserted on behalf of a putative class generally\nconsisting of all persons in the United States who within the\nlast four years received, without prior consent, a text\nmessage from the RNC with “an artificial or prerecorded\nvoice in a video.” For each cause of action, Howard sought,\npursuant to § 227(b)(3), “a permanent injunction against\nfuture calls or text messages” and a minimum of $500.00 in\nstatutory damages for each violation.\n\n8 HOWARD V. REPUBLICAN NAT’L COMM.\n\n\n The district court granted the RNC’s motion to dismiss\nHoward’s complaint for failure to state a claim under Federal\nRule of Civil Procedure 12(b)(6). The court held that,\nbecause the recipient of the challenged text message “had to\nactively press play . . . to watch” the accompanying video,\nthe RNC had not “ma[d]e a call” using a prerecorded voice\nin violation of § 227(b)(1)(A). The court also stated, without\nfurther analysis, that the same conclusion also applied to\nHoward’s claim of a violation of § 227(b)(1)(B).\n The court also held that Howard’s claim under\n§ 227(b)(1)(B) failed for the alternative reason that the\nchallenged text message fell within a regulatory exemption\nfrom § 227(b)(1)(B)’s coverage. See 47 U.S.C.\n§ 227(b)(2)(B) (authorizing the Federal Communications\nCommission (“FCC”) to “exempt,” “by rule or order,”\ncertain categories of calls “from the requirements of\nparagraph (1)(B) of this subsection”); see also id.\n§ 227(b)(1)(B) (stating that the prohibitions of\n§ 227(b)(1)(B) apply “unless,” inter alia, the call “is\nexempted” by the FCC under § 227(b)(2)(B)). Specifically,\nthe district court held that Howard’s § 227(b)(1)(B) claim\nwas barred by a regulation generally exempting from that\nprovision calls “made by or on behalf of a tax-exempt\nnonprofit organization [if] the caller makes no more than\nthree calls within any consecutive 30-day period to the\nresidential line and honors the called party’s request to opt\nout of future calls.” 47 C.F.R. § 64.1200(a)(3)(iv).\n The court dismissed Howard’s complaint with prejudice\nand without leave to amend, concluding that the foregoing\ndeficiencies in Howard’s claims could not be cured by the\nallegation of any additional facts.\n\n HOWARD V. REPUBLICAN NAT’L COMM. 9\n\n\n Howard timely appealed. We have jurisdiction under 28\nU.S.C. § 1291, and we review de novo the district court’s\ndismissal under Rule 12(b)(6). See Zimmerman v. City of\nOakland, 255 F.3d 734, 737 (9th Cir. 2001).\n II\n A\n In addressing whether the relevant prohibitions in § 227\napply to the challenged text message at issue here, we begin,\nas in all questions of statutory construction, “with the text of\nthe statute.” See Bartenwerfer v. Buckley, 598 U.S. 69, 74\n(2023).\n Section 227(b)(1) provides, in relevant part:\n\n It shall be unlawful for any person within\n the United States, or any person outside the\n United States if the recipient is within the\n United States—\n (A) to make any call (other than a call\n made for emergency purposes or made\n with the prior express consent of the\n called party) using any automatic\n telephone dialing system or an artificial\n or prerecorded voice—\n ....\n (iii) to any telephone number\n assigned to a paging service, cellular\n telephone service, specialized mobile\n radio service, or other radio common\n carrier service, or any service for\n\n10 HOWARD V. REPUBLICAN NAT’L COMM.\n\n\n which the called party is charged for\n the call . . . ; [or]\n (B) to initiate any telephone call to\n any residential telephone line using an\n artificial or prerecorded voice to deliver a\n message without the prior express\n consent of the called party, unless the call\n is initiated for emergency purposes . . . or\n is exempted by rule or order by the\n [Federal Communications] Commission\n ....\n\n47 U.S.C. § 227(b)(1).\n By their terms, the two relevant subsections—\n§ 227(b)(1)(A)(iii) and § 227(b)(1)(B)—impose comparable\nprohibitions on using “an artificial or prerecorded voice” to\nmake calls, respectively, to a “cellular telephone” number\nand to a “residential telephone line.”2 Specifically,\n§ 227(b)(1)(A)(iii) generally makes it unlawful (1) “to make\nany call” (2) “to any telephone number assigned to a . . .\ncellular telephone service” (3) “using . . . an artificial or\nprerecorded voice,” and § 227(b)(1)(B) generally makes it\nunlawful (1) “to initiate any telephone call” (2) “to any\nresidential telephone line” (3) “using an artificial or\nprerecorded voice to deliver a message.” 47 U.S.C.\n\n2\n Section 227(b)(1)(A)(iii)’s text also separately prohibits “mak[ing] any\ncall . . . using any automatic telephone dialing system . . . to any\ntelephone number assigned to a . . . cellular telephone service.” 47\nU.S.C. § 227(b)(1)(A)(iii); see, e.g., Facebook, Inc. v. Duguid, 592 U.S.\n395, 402 (2021) (addressing claim that a particular system used by\nFacebook to send text messages used an “automatic telephone dialing\nsystem” that violated § 227(b)(1)(A)). That theory of liability, however,\nis not at issue in this case.\n\n HOWARD V. REPUBLICAN NAT’L COMM. 11\n\n\n§§ 227(b)(1)(A)(iii), 227(b)(1)(B). The parties do not\ndispute that, for purposes of these provisions, the challenged\ntext message was sent “to a[] telephone number assigned to\na . . . cellular telephone service” and that that cell phone\nnumber also qualifies as a “residential telephone line.” Id.\nThe key question, then, is whether the sending of this text\nmessage involved (1) “mak[ing] a[] call” or “initiat[ing] a[]\ntelephone call” to that phone number, (2) “using an artificial\nor prerecorded voice.” Id.\n B\n Before addressing the meaning of the quoted statutory\nlanguage as a whole, we first summarize our prior caselaw\nexpounding on the meaning of two important constituent\nterms, namely “call” and “voice.”\n We have previously held that, under Chevron v. Natural\nResources Defense Council, Inc., 467 U.S. 837 (1984), it\nwas “reasonable” to defer to the FCC’s conclusion that the\nterm “call” in § 227 includes a “text message.” Satterfield\nv. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2009).\nAlthough we thus framed our holding in Satterfield in terms\nof the then-applicable deference required to be given to the\nFCC’s construction, we think it is clear from Satterfield’s\nsubstantive analysis that the conclusion would be the same\neven in the absence of Chevron deference. See Loper Bright\nEnters. v. Raimondo, 603 U.S. 369, 412 (2024) (“Chevron is\noverruled.”). Satterfield emphasized two key points about\nstatutory construction that supported the FCC’s\nunderstanding of a “call,” see Satterfield, 569 F.3d at 953–\n54, and even under de novo review, those same two points\nsupport the conclusion that a “text message” constitutes a\n“call” within the meaning of the TCPA.\n\n12 HOWARD V. REPUBLICAN NAT’L COMM.\n\n\n First, Satterfield held that, in accordance with its “plain\nand ordinary meaning[]” in this context, the statutory term\n“‘call’ . . . refer[s] to an attempt to communicate by\ntelephone.” Satterfield, 569 F.3d at 953 n.3; see also Call,\nWEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 318\n(1981 ed.) (hereinafter “WEBSTER’S THIRD”) (stating that a\n“call” means a “communicat[ion] with or [an attempt] to get\nin communication with a person by telephone”). Text\nmessaging plainly fits within that literal definition of a\n“call,” because “text messaging is a form of communication\nused primarily between telephones.” Satterfield, 569 F.3d at\n954.\n Second, Satterfield also noted, see id., that treating a text\nmessage as a “call” was consistent with the statute’s declared\npurpose “to protect” “privacy rights,” 47 U.S.C.\n§ 227(b)(2)(B)(ii)(I); id. § 227(b)(2)(C) (same). See also\nLos Angeles Lakers, Inc. v. Federal Ins. Co., 869 F.3d 795,\n803 (9th Cir. 2017) (holding that, in light of the declared\npurpose stated in § 227(b)(2)(B)(ii)(I) and § 227(b)(2)(C),\n“the purpose of the TCPA is to protect privacy rights and\nprivacy rights alone”). At issue in Satterfield were written\ntext messages allegedly sent using an automatic telephone\ndialing system (as opposed to a “prerecorded voice”) in\nviolation of § 227(b)(1)(A). See Satterfield, 569 F.3d at\n949–50; see also supra note 2 (referencing that distinct\nprohibition against using automatic telephone dialing\nsystems). Given how text messaging typically works as used\non individuals’ phones, an arriving auto-dialed text message\n(unlike, for example, an arriving email) usually results in an\nimmediate intrusion in the form of a display of a preview of\nthe text on the phone’s screen (even if locked), a sound, a\n\n HOWARD V. REPUBLICAN NAT’L COMM. 13\n\n\nvibration, or some combination of those.3 Consequently, the\nsort of auto-dialed text messages at issue in Satterfield will\ntypically produce the particular type of intrusion on privacy\nat which the statute is aimed, which is an intrusion upon\n“seclusion.” Los Angeles Lakers, 869 F.3d at 806; see also\nYahoo! Inc. v. National Union Fire Ins. Co. of Pittsburgh,\n913 F.3d 923, 925 (9th Cir. 2019) (noting that “[c]ourts have\nconsistently held the TCPA protects a species of privacy\ninterest in the sense of seclusion,” “such as where the\ninsured’s unsolicited advertising message disturbs the\nrecipient’s privacy” (citation omitted)). In other words, an\nauto-dialed text message to a phone number thus frequently\nentails an immediate intrusion on privacy comparable to that\nassociated with the ring of an incoming auto-dialed phone\ncall. That critical fact confirms that a text message is\nproperly deemed to be a “call” within the meaning of the\nTCPA. See ANTONIN SCALIA AND BRYAN A. GARNER,\nREADING LAW: THE INTERPRETATION OF LEGAL TEXTS 57\n(2012) (noting that the “purpose” disclosed by the statutory\ntext “sheds light only on deciding which of various textually\npermissible meanings should be adopted”).\n We later addressed the meaning of the TCPA’s use of the\nterm “voice” in Trim v. Reward Zone USA LLC, 76 F.4th\n1157 (9th Cir. 2023). In Trim, the plaintiff contended that\nunwanted text messages that she received on her cell phone\nand that consisted of words and an accompanying link to a\nwebsite “constituted ‘prerecorded voice messages’” and\n\n3\n The mere fact that a phone can be set to shut off notifications for text\nmessages does not mean that text messages do not, as a class, fall within\nthe ordinary understanding of a potentially privacy-intruding “call.” A\nclassic telephone call, which typically results in ringing of the phone,\nremains a “call” even if the particular user has his or her ringer turned\noff.\n\n14 HOWARD V. REPUBLICAN NAT’L COMM.\n\n\nwere therefore prohibited by § 227(b)(1)(A)(iii). Id. at 1159.\nIn making this assertion, the plaintiff argued that the term\n“voice” broadly included any “instrument or medium of\nexpression,” including ones that did not use sound. Id. We\ndisagreed, holding that, for two reasons, “Congress clearly\nintended ‘voice’ in 47 U.S.C. § 227(b)(1)(A) to encompass\nonly audible sounds.” Id. at 1161.\n First, we noted that contemporary dictionaries confirmed\nthat “[t]he ordinary meaning of ‘voice’ when the TCPA was\nenacted was a ‘[s]ound formed in or emitted from the human\nlarynx in speaking.’” Trim, 76 F.4th at 1162 (quoting Voice,\nOXFORD ENGLISH DICTIONARY (2d ed. 1989)) (additional\ncitations omitted). Although “voice” also could have a\nbroader meaning that includes more symbolic or poetic uses\n(as in, for example, phrases such as “the party [that] became\nthe voice of the workers”), we noted that the fact “that a\ndefinition is broad enough to encompass one sense of a word\ndoes not establish that the word is ordinarily understood in\nthat sense.” Id. (simplified). Because there was no\nindication that Congress intended to adopt any such\n“idiosyncratic definition,” we concluded that “Congress\nintended to legislate the primary meaning of voice, which\nrequires an audible component.” Id. (citation omitted).\n Second, we held that the “context of the statute”\nconfirmed that the plaintiff was wrong in arguing, in effect,\nthat every text message involved the use of a “voice.” Trim,\n76 F.4th at 1162. We pointed to another subsection of § 227\nthat regulated use of “caller identification information” and\nthat expressly defined that phrase to include identifying\ninformation concerning both “a call made using a voice\nservice or a text message sent using a text message service.”\nId. (quoting 47 U.S.C. § 227(e)(8)(A)). Under the plaintiff’s\noverbroad reading of “voice,” we concluded, all text\n\n HOWARD V. REPUBLICAN NAT’L COMM. 15\n\n\nmessages would already be covered by the phrase “call made\nusing a voice service,” thereby rendering the additional\nlanguage concerning “text messages” as surplusage. Id. We\nalso rejected the plaintiff’s converse surplusage argument\nthat, under a narrower reading of “voice,” a text message\ncould never be said to use a “prerecorded voice.” Id. at\n1162–63. That was wrong, we held, because “a ‘text’ call\ncould come via MMS (Multimedia Messaging Service),\nwhich could include audio sound with an artificial or\nprerecorded voice.” Id. at 1163 n.4; see generally United\nStates v. Palms, 21 F.4th 689, 695 n.5 (10th Cir. 2021)\n(explaining that “MMS is an acronym for multimedia\nmessage service and refers to text messages combined with\npictures, video, or sound files,” in contrast to SMS, which\n“stands for short messaging service . . . and is a system that\nallows cell phones to send and receive short text\nm[e]ssages”).\n C\n Against this backdrop, we conclude that Howard’s\ncomplaint failed to state a claim under either\n§ 227(b)(1)(A)(iii) or § 227(b)(1)(B). Although the RNC’s\ntext message was a “call” and contained a video file with an\nartificial or prerecorded “voice” within the meaning of those\nsubsections, Howard has not alleged that the RNC “ma[d]e”\nor “initiate[d]” that “call” “using” the artificial or\nprerecorded voice, as required to state a claim under the\nsubsections. 47 U.S.C. §§ 227(b)(1)(A), 227(b)(1)(B)\n(emphasis added).\n As relevant here, § 227(b)(1)(A) makes it unlawful “to\nmake any call . . . using . . . an artificial or prerecorded\nvoice,” and § 227(b)(1)(B) makes it unlawful “to initiate any\ntelephone call . . . using an artificial or prerecorded voice to\n\n16 HOWARD V. REPUBLICAN NAT’L COMM.\n\n\ndeliver a message.” 47 U.S.C. §§ 227(b)(1)(A), 227(b)(1)\n(B) (emphasis added). Construed in accordance with their\nordinary meaning, the words “make” or “initiate,” when\nused with reference to a “call,” refer to the manner in which\na call to a telephone is begun. See Make, WEBSTER’S THIRD,\nsupra, at 1363 (defining “make” to mean “to cause to exist,\noccur, or appear : bring to pass : create, cause”); Initiate,\nWEBSTER’S THIRD, supra, at 1164 (defining “initiate” as “to\nbegin or set going : make a beginning of : perform or\nfacilitate the first actions, steps, or stages of”). Because the\nidentical phrase “using an artificial or prerecorded voice” in\neach subsection respectively modifies the verbs “make” and\n“initiate,” those provisions only limit the use of artificial or\nprerecorded voices to begin a call.4\n The line drawn by this plain-language reading also\ncoheres with the declared purpose of the statute, which is to\nprevent the intrusion upon seclusion associated with\nanswering a “call” only to be subjected to the nuisance of\nhearing an artificial or prerecorded voice rather than the\nvoice of a live person.5 A call that is begun with an artificial\n4\n Because this construction follows from the TCPA’s plain language, the\ndissent is quite wrong in claiming that we have somehow added to the\nstatutory text. See Dissent at 25–29. Rather, it is the dissent that has\ndisregarded the TCPA’s text by ignoring the import of the critical\nstatutory language stating that the “us[e]” of the prerecorded voice must\nbe tied to the “mak[ing]” or “initiat[ing]” of the call.\n5\n As explained in the formal findings contained in the text of the TCPA,\nthe “[e]vidence compiled by the Congress indicates that residential\ntelephone subscribers consider automated or prerecorded telephone\ncalls, regardless of the content or the initiator of the message, to be a\nnuisance and an invasion of privacy.” TCPA, Pub. L. No. 102-243,\n§ 2(10), 47 U.S.C. § 227 note. Congress therefore “[b]ann[ed] such\nautomated or prerecorded telephone calls to the home, except when the\n\n HOWARD V. REPUBLICAN NAT’L COMM. 17\n\n\nor prerecorded voice directly implicates that privacy interest,\nbecause the person called, upon being reached, is\nimmediately and involuntarily subjected to the nuisance of\nlistening to an artificial or prerecorded voice. Likewise, a\nvoicemail message that consists of a prerecorded robocall,\nrather than a recording of a live speaker contemporaneously\nleaving a message, intrudes on the recipient’s privacy as\nsoon as he or she plays back the message and is subjected to\nlistening to an entirely prerecorded voicemail message. See\nLoyhayem v. Fraser Fin. & Ins. Servs., Inc., 7 F.4th 1232,\n1233–34 (9th Cir. 2021).6 By contrast, if the caller is a live\n\nreceiving party consents to receiving the call or when such calls are\nnecessary in an emergency situation affecting the health and safety of the\nconsumer.” Id. § 2(12). Congress likewise found that “[b]usinesses,”\nand not merely residential subscribers, also had complained “that\nautomated or prerecorded telephone calls are a nuisance,” id. § 2(14),\nand the prohibition contained in § 227(b)(1)(A) therefore extended\nbeyond the residential telephone lines covered by § 227(b)(1)(B).\n6\n Contrary to what the dissent wrongly contends, see Dissent at 30 n.5,\nLoyhayem had no occasion to address the question presented here, which\nis whether § 227(b)(1)(A)(iii) applies to the sending of a text message\nthat includes a video file that is playable only if the recipient\naffirmatively elects to view it. In Loyhayem, the district court had held\nthat, when construed in light of its implementing regulations, the\nTCPA’s prohibition on using automatic dialing systems or prerecorded\nvoices to make calls to cell phones does not apply unless the content of\nthe message involves an “advertisement” or “telemarketing.” 7 F.4th at\n1234. We rejected this interpretation of the TCPA as lacking any basis\nin the statutory text, which applies to calls made in the prohibited manner\n“regardless of content.” Id. The question here, by contrast, is not\nwhether the call involved any particular type of subject matter; rather, it\nis whether the challenged call was “ma[d]e” in the manner that the TCPA\nprohibits in the first place. 47 U.S.C. § 227(b)(1)(A)(iii). And the\ndissent’s further insinuation that the Supreme Court supposedly\naddressed this question in Facebook is demonstrably incorrect:\n\n18 HOWARD V. REPUBLICAN NAT’L COMM.\n\n\nperson, and, after the call is begun with the recipient, the\ncaller then asks the recipient if he or she is willing to listen\nto a prerecorded message or is willing to complete an\nautomated survey, there is no sense in which that “use” of\nan automated or prerecorded voice implicates the same\nprivacy interest. In the language of the statute, such a call\nwas not “ma[d]e” or “initiate[d]” by use of an automated or\nprerecorded voice, and such a call neither falls within the\nstatute’s text nor implicates its declared purpose.\n The dissent’s broader reading of § 227(b)(1)(A)(iii) and\n§ 227(b)(1)(B) would lead to anomalous, if not absurd,\nresults. For example, if these provisions were construed (as\nthe dissent would have it) to reach any use of an automated\nor prerecorded voice during a call (as opposing to use in\nmaking or initiating the call), that would potentially prohibit\nthe common practice of on-hold messaging, in which\nprerecorded informational messages are played for\nindividuals while they are on hold. See generally Info-Hold,\nInc. v. Sound Merch., Inc., 538 F.3d 448, 451 (6th Cir. 2008)\n(describing on-hold messaging). But a business\nrepresentative who makes or initiates a live call and then\nlater, to assist the call recipient, places the recipient on hold,\nthereby resulting in prerecorded messages being heard,\nplainly does not violate § 227(b)(1)(A)(iii) or\n§ 227(b)(1)(B). In such a case, the representative has not\n“ma[d]e” or “initiate[d]” a call “using” a prerecorded voice.\n47 U.S.C. §§ 227(b)(1)(A)(iii), (b)(1)(B). Moreover, the\n\nFacebook involved § 227(b)(1)(A)’s distinct prohibition on using\nautomatic telephone dialing systems, and the Court’s passing\nobservation that the TCPA also prohibits “‘artificial or prerecorded\nvoice’ calls,” see Facebook, 592 U.S. at 408 n.8, says nothing about\nwhether the inclusion of an unplayed video file in a text message counts\nas “using” a prerecorded voice to “make” or “initiate” a call.\n\n HOWARD V. REPUBLICAN NAT’L COMM. 19\n\n\ndissent’s flawed reading of the provisions as prohibiting any\n“use” of prerecorded voices during a call would prohibit\nplaying recorded music while on hold, but only if the music\nhas vocals. The notion that Congress sought to draw any\nsuch line in these provisions is absurd.7\n Because § 227(b)(1)(A)(iii) and § 227(b)(1)(B) thus\nregulate only the manner in which a call is made or initiated,\nHoward has failed to state a claim under either provision.\nThe call at issue here—the text message and accompanying\nvideo file—included an artificial or prerecorded voice. See\nTrim, 76 F.4th at 1163 n.4 (recognizing that a text message\n“could include audio sound with an artificial or prerecorded\nvoice” (emphasis added)). But like a telephone call in which\na live caller offers to play an artificial or prerecorded voice\nto the recipient, the RNC’s text message was made or\ninitiated by its textual content and its silent inclusion of a\nready-to-play video file. As Howard conceded at argument,\nhe would only hear the prerecorded voice in the video file if\nhe chose to tap the thumbnail and play the file. The text\nmessage therefore communicated to Howard a textual\nstatement and the option to play what the thumbnail\ndisclosed was a video recording made by Ivanka Trump.\nBecause Howard’s voluntary engagement with the video file\nwas a necessary intervening action between the RNC’s\ninitial contact and the playing of the video’s artificial or\n7\n Indeed, the dissent’s atextual reading of the TCPA would make it\npresumptively unlawful to ever put video files in text messages absent\n“prior express consent of the called party.” 47 U.S.C. §§ 227(b)(1)(A),\n227(b)(1)(B). Depending upon how broadly or narrowly the “prior\nexpress consent” exception is read, see Van Patten v. Vertical Fitness\nGrp., LLC, 847 F.3d 1037, 1043–46 (9th Cir. 2017) (discussing the scope\nof “consent” under the TCPA and its implementing regulations), such a\nsweeping reading of the provisions could potentially raise serious First\nAmendment issues.\n\n20 HOWARD V. REPUBLICAN NAT’L COMM.\n\n\nprerecorded voice, any subsequent playing and hearing of\nthe prerecorded voice in the video file is not included within\nthe means by which the RNC made or initiated the “call.”\nUnder these circumstances, the “call” at issue in the RNC’s\ntext message was not “ma[d]e” or “initiat[ed]” using an\nartificial or prerecorded voice, and it therefore did not violate\n§ 227(b)(1)(A)(iii) or § 227(b)(1)(B).8\n III\n For the foregoing reasons, we conclude that the relevant\nlanguage in § 227(b)(1)(A)(iii) and § 227(b)(1)(B) only\nreaches the use of prerecorded voices in the manner in which\na call is begun. Because the text message at issue here was\nmade and initiated without the playing of a prerecorded\nvoice, it did not violate these provisions. We therefore\naffirm the district court’s order dismissing the complaint for\nfailure to state a claim on which relief can be granted.\n AFFIRMED.\n\n\n\n\n8\n We recognize that an individual’s phone settings could conceivably be\nchanged so that, upon viewing a text message containing certain video\nfiles, the file would automatically begin to play. That would not change\nthe ultimate result here. There are no allegations in the complaint that\nuse of such an auto-viewing setting is sufficiently widespread that it\nwould be expected by a sender (and thus arguably understood to be part\nof the typical process for “initiating” or “making” the call). Moreover,\nanyone who sets his or her phone so that it plays all incoming video files\nautomatically has plainly given “prior express consent” to listening to\nthe prerecorded voices on any such video files that may be received. 47\nU.S.C. §§ 227(b)(1)(A), 227(b)(1)(B).\n\n HOWARD V. REPUBLICAN NAT’L COMM. 21", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11240443/", "author_raw": "COLLINS, Circuit Judge:"}, {"author": "Rawlinson, Circuit Judge, dissenting", "type": "dissent", "text": "Rawlinson, Circuit Judge, dissenting:\n\n I respectfully dissent from my colleagues’ conclusion\nthat the text message sent in this case, which included a\nvideo file, did not come within the protections of the\nTelephone Consumer Protection Act of 1991 (TCPA).\n As the majority acknowledges, the video file in this case\nwas not sent separately to Howard’s telephone. Rather, it\nwas “automatically downloaded onto Howard’s phone” as a\nvisual image that accompanied the text message. Majority\nOpinion, p. 6. So the video file was sent contemporaneously\nwith the text message. But, the majority inexplicably parses\nthe language of the statute to conclude that the call made to\nHoward by way of a text message1 did not fall within the\nprovisions of Section 227 of the TCPA.\n Section 227(b)(1) of the TCPA provides in pertinent\npart:2\n\n It shall be unlawful for any person . . .\n (A) to make any call (other than a call\n made for emergency purposes or made with\n the prior express consent of the called party)\n using any automatic telephone dialing system\n or an artificial or prerecorded voice . . .\n (B) to initiate any telephone call to any\n residential telephone line using an artificial\n or prerecorded voice to deliver a message\n\n1\n The majority acknowledges, as it must, that the term “call” includes “a\ntext message” under the TCPA. Majority Opinion, p. 12. See also\nSatterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2009).\n2\n The plaintiff sought relief under this section of the TCPA.\n\n22 HOWARD V. REPUBLICAN NAT’L COMM.\n\n\n without the prior express consent of the\n called party, unless the call is initiated for\n emergency purposes.\n (Emphasis added).\n\n We have repeatedly noted that the TCPA was enacted “to\nprotect the privacy interests of residential telephone\nsubscribers by placing restrictions on unsolicited, automated\ntelephone calls.” Trim v. Reward Zone USA LLC, 76 F.4th\n1157, 1160 (9th Cir. 2023) (quoting S. Rep. No. 102-178 at\n1 (1991)) (internal quotation marks omitted) (emphasis\nadded). Similarly, in Satterfield, we emphasized:\n\n The TCPA was enacted in response to an\n increasing number of consumer complaints\n arising from the increased number of\n telemarketing calls. The consumers\n complained that such calls are a “nuisance\n and an invasion of privacy.” The purpose and\n history of the TCPA indicate that Congress\n was trying to prohibit the use of [Automatic\n Telephone Dialing Systems (ATDSs)] to\n communicate with others by telephone in a\n manner that would be an invasion of privacy.\n The language and purpose of the TCPA\n support the conclusion that the use of an\n ATDS to make any call, regardless of\n whether that call is communicated by voice\n or text, is prohibited. . . .\n\n569 F.3d at 954 (citing and quoting S. Rep. No. 102-178 at\n*2 (1991)) (emphases added); see also Loyhayem v. Fraser\nFin. and Ins. Servs., Inc., 7 F.4th 1232, 1234 (9th Cir. 2021)\n\n HOWARD V. REPUBLICAN NAT’L COMM. 23\n\n\n(holding that the TCPA “prohibits in plain terms ‘any call,’\nregardless of content, that is made to a cell phone using an\nautomatic telephone dialing system or an artificial or pre-\nrecorded voice”) (citation omitted) (emphasis added);\nFacebook, Inc. v. Duguid, 592 U.S. 395, 408 n.8 (2021)\n(observing that the TCPA prohibits “artificial or prerecorded\nvoice calls, irrespective of the type of technology used”)\n(citation omitted) (emphasis added).\n The district court dismissed Howard’s action for failure\n“to state a claim to relief that is plausible on its face.”\nAshcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation\nomitted). However, in his complaint, Howard alleged that\n“Defendant placed, or caused to be placed, an automated text\nmessage to Howard’s cellular telephone number” and that\n“the text message included a video file that was\nautomatically downloaded to Howard’s phone and contained\nan artificial or prerecorded voice.” These allegations set\nforth the elements of the statute. Defendant made a call by\nway of a text message. See Satterfield, 569 F.3d at 954\n(holding that the term “call” includes a “text message” for\npurposes of the TCPA). In addition, Howard alleged that the\ncall was made using an “artificial or prerecorded voice.”\nThese allegations stated a plausible claim under Section\n227(b)(1)(A). See Loyhayem, 7 F.4th at 1234 (recognizing\nthat the plaintiff stated a valid claim by alleging that the call\n“was made using . . . an artificial or pre-recorded voice.”).\n Under our analysis in Loyhayem, Howard also plausibly\nstated a violation of Section 227(b)(1)(B) by alleging that\nDefendant “placed, or caused to be placed, an automated text\nmessage to [Howard’s] cellular telephone number,” which\nalso served as his “residential telephone.”\n\n24 HOWARD V. REPUBLICAN NAT’L COMM.\n\n\n To state a plausible claim under Rule 8 of the Federal\nRules of Civil Procedure, a plaintiff need only file a\ncomplaint that “contain[s] sufficient factual matter, accepted\nas true, to state a claim to relief that is plausible on its face.”\nAshcroft, 556 U.S. at 678 (citation and internal quotation\nmarks omitted). A claim is “plausible on its face . . . when\nthe plaintiff pleads factual content that allows the court to\ndraw the reasonable inference that the defendant is liable for\nthe misconduct alleged.” Id. (citation omitted).\n As previously stated, Howard alleged that “Defendant\nplaced, or caused to be placed, an automated text message to\n[Howard’s] cellular telephone number,” and that “the text\nmessage contained an artificial or prerecorded voice.” From\nthe allegations, a reasonable inference may be drawn that the\ndefendant is liable for violating Section 227(b)(1)(A), which\nproscribes making an unconsented to call using “an artificial\nor prerecorded voice.” Since it is undisputed that a text\nmessage constitutes a call for purposes of the statute, see\nSatterfield, 569 F.3d at 954, the only element of the statute\nat issue is the use of “an artificial or prerecorded voice.” 47\nU.S.C. § 227(b)(1)(A).3\n The majority takes the position that Howard failed to\nstate a plausible claim because he failed to allege that the\n“video file that was automatically downloaded” to his\ncellular telephone was “made or initiated” by the defendant\n“using the artificial or prerecorded voice.” Majority\nOpinion, p. 15 (alteration and internal quotation marks\n\n\n\n\n3\n The majority takes no issue with Howard’s allegation that his cellular\ntelephone is also his residential telephone for purposes of § 227(b)(1)(B).\n\n HOWARD V. REPUBLICAN NAT’L COMM. 25\n\n\nomitted).4 The majority reasons that the prohibitions of\nSection 227 apply only when artificial or prerecorded voices\nare used “to begin a call.” Id. p. 16 (emphasis in the\noriginal). But the majority’s interpretation falters for two\nindependent reasons. The first is that it violates a cardinal\ncommandment of statutory construction: thou shall not add\nwords to a statute in the process of rendering an\ninterpretation. See Jones v. Bock, 549 U.S. 199, 216-17\n(2007). In Jones, the United States Supreme Court\naddressed the issue of exhaustion under the Prison Litigation\nReform Act (PLRA), which requires administrative\nexhaustion of prisoner claims before filing a court action.\nSee id. at 211. The Supreme Court acknowledged that\n“exhaustion is mandatory under the PLRA and that\nunexhausted claims cannot be brought in court.” Id. (citation\nomitted). Nevertheless, the Supreme Court rejected a\nreading of the PLRA that would place the burden on the\nprisoner “to plead and demonstrate exhaustion in the\ncomplaint.” Id. at 211-12 (citation omitted). In rejecting this\nreading of the statute, the Supreme Court reasoned:\n\n We conclude that failure to exhaust is an\n affirmative defense under the PLRA, and that\n inmates are not required to specially plead or\n demonstrate exhaustion in their complaints.\n We understand the reasons behind the\n decisions of some lower courts to impose a\n\n4\n The majority accuses me of ignoring “the import of the critical terms\n‘make’ and ‘intake.’” Majority Opinion, p. 16 n.4. However this\naccusation embodies some sophistry. If one looks closely at this\nargument, it becomes obvious that the majority has switched the focus\nof the “make” and “initiate” language from the “call” as stated in the\nstatute, to the video file, which is actually part of the “call” in the text\nmessage. Satterfield, 569 F.3d at 954.\n\n26 HOWARD V. REPUBLICAN NAT’L COMM.\n\n\n pleading requirement on plaintiffs in this\n context, but that effort cannot be fairly\n viewed as an interpretation of the PLRA.\n Whatever temptations the statesmanship of\n policy-making might wisely suggest, the\n judge’s job is to construe the statute – not to\n make it better. The judge must not read in by\n way of creation, but instead abide by the duty\n of restraint, the humility of function as merely\n the translator of another’s command.\n\nId. at 216 (citation, alteration, and internal quotation marks\nomitted) (emphasis added).\n In reaching its conclusion, the Supreme Court quoted\nand relied upon its seminal and time-tested decision in the\ncase of United States v. Goldenberg, 168 U.S. 95 (1897). In\nthat case, the Supreme Court cautioned against “judicial\naddition to the language of the statute.” Id. at 103. The\nSupreme Court in Goldenberg emphasized that:\n\n The primary and general rule of statutory\n construction is that the intent of the lawmaker\n is to be found in the language that he has\n used. . . . The courts have no function of\n legislation, and simply seek to ascertain the\n will of the legislator. . . . No mere omission,\n no mere failure to provide for contingencies,\n which it may be wise to have specifically\n provided for, justify any judicial addition to\n the language of the statute. . . .\n\nId. at 102-03 (emphases added).\n\n HOWARD V. REPUBLICAN NAT’L COMM. 27\n\n\n In accordance with its holding in Goldenberg, the\nSupreme Court ruled in Jones that “[g]iven that the PLRA\ndoes not itself require plaintiffs to plead exhaustion, such a\nresult must be obtained by the process of amending the\nFederal Rules, and not by judicial interpretation.” Jones,\n549 U.S. at 217 (citation and internal quotation marks\nomitted) (emphasis added).\n Similarly, in Planes v. Holder, 652 F.3d 991 (9th Cir.\n2011), we relied upon Goldenberg to foreclose the adding of\nelements to a statute under the guise of interpretation. In\nPlanes, we declined to “deviate from the plain language of\nthe statute” defining the term “conviction” by “hold[ing] that\nan alien does not stand ‘convicted’ for immigration purposes\nuntil any direct appeals as of right have been waived or\nexhausted.” Id. at 995. Citing Jones and quoting from\nGoldenberg, we reiterated that “[r]egardless of our view on\nthe wisdom or efficacy of Congress’s policy choices, we are\nnot free to read in additional elements where the legislature\nhas declined to include them.” Id. at 996 (citation omitted).\nYet, that is precisely what the majority has done. The\nmajority interprets the TCPA as “only limit[ing] the use of\nartificial or prerecorded voices to begin a call.” Majority\nOpinion, p. 16 (emphasis in the original). Essentially, the\nmajority changes the wording of the statute from making it\n“unlawful [under § 227 (b)(1)(A)] for any person . . . to\nmake any call using an . . . artificial or prerecorded voice” to\nmaking it “unlawful for any person . . . to begin any call\nusing an . . . artificial or prerecorded voice.” Similarly, the\nmajority’s reading would change the statute making it\n“unlawful [under § 227(b)(1)(B)] to initiate any telephone\ncall to any residential telephone using an artificial\nprerecorded voice” to making it “unlawful to initiate any\n\n28 HOWARD V. REPUBLICAN NAT’L COMM.\n\n\ntelephone call to any residential telephone line beginning\nwith an artificial or prerecorded voice.”\n This change to the wording of the statute strays from the\nclear direction provided in Jones. As with the PLRA statute\nin Jones that did not “itself require” the pleading of\nexhaustion, neither does the TCPA “itself require” that the\ncall begin with the use of an artificial or prerecorded voice.\n549 U.S. at 217. The majority’s addition of this language to\nthe statute cannot be reconciled with the Supreme Court’s\ndecision in Jones and Goldenberg or our decision in Planes.\n The majority couches its addition to the statute as\n“coher[ing] with the declared purpose of the statute.”\nMajority Opinion, p. 16. But in Goldenberg, the Supreme\nCourt instructed that “the intent of the lawmaker is to be\nfound in the language that he has used,” not in adding\nadditional language to the statute. 168 U.S. at 102-03.\nIndeed, any omission in the statute cannot “justify any\njudicial addition to the language of the statute.” Id. at 103.\nAnd in Van Patten v. Vertical Fitness Group, 847 F.3d 1037,\n1047 (9th Cir. 2017), we emphasized that “[b]ecause the\nTCPA is a remedial statute intended to protect consumers\nfrom unwanted automated telephone calls and messages, it\nshould be construed in accordance with that purpose.”\n(citation omitted). The majority’s interpretation does\nexactly the opposite.\n The Supreme Court acknowledged in Jones that it is\nunderstandable why the majority is of the view that a better\nreading of the statute would make unlawful only those calls\nthat “begin with the use of an artificial or prerecorded\nvoice.” But that is simply not how the statute reads. As in\nJones, the majority’s preferred reading of the statute “must\nbe obtained by the process of amending the [TCPA], and not\n\n HOWARD V. REPUBLICAN NAT’L COMM. 29\n\n\nby judicial interpretation.” 549 U.S. at 217. It is not our role\nto “make [the statute] better,” or “read in by way of\ncreation.” Id. at 216. Rather, we must “abide by [our] duty\nof restraint [and] humility of function as merely the\ntranslator[s] of [Congress’s] commands.” Id. (citations\nomitted). The majority’s unrestrained rewriting of the\nstatute “cannot be fairly viewed as an interpretation of the\n[TCPA].” Id.\n I remain singularly unpersuaded by the majority’s\nconviction that the scope of the TCPA should be\ncircumscribed. See Majority Opinion, p. 16, describing the\n“line drawn” limiting the statute to “artificial or prerecorded\nvoices [that] begin a call.” Id. There is absolutely nothing\nin our precedent that supports this limitation on the reach of\nthe TCPA. As discussed, the language of the statute\nencompasses “any call,” not a limited set of calls.\nLoyhayem, 7 F.4th at 1234. And we have consistently and\ndefinitively cast the word “any” as conveying a broad scope.\nSee, e.g., Hertzberg v. Dignity Partners, 191 F.3d 1076,\n1080 (9th Cir. 1999); United States v. Hernandez, 894 F.3d\n1104, 1108 (9th Cir. 2018); Patel v. Garland, 596 U.S. 328,\n329 (2022).\n Secondly, and importantly, the majority’s interpretation\nof the statute conflicts with our precedent. In Loyhayem, we\nheld that the plaintiff stated a plausible claim when he\nalleged that the defendant “left a pre-recorded voicemail\nmessage . . . using both an automated telephone dialing\nsystem and an artificial or pre-recorded voice.” 7 F.4th at\n1233-34. We explained that the statute “prohibits in plain\nterms ‘any call,’ regardless of content . . . using . . . an\nartificial or pre-recorded voice.” Id. at 1234 (emphases\nadded). Unlike the majority, we did not require that the call\n“begin” with the artificial or prerecorded voice. Majority\n\n30 HOWARD V. REPUBLICAN NAT’L COMM.\n\n\nOpinion, pp. 16-17. Rather, the text message is the “call,”\nSatterfield, 569 F.3d at 954, and the “content” is the video\nfile containing the “artificial or pre-recorded voice.”\nLoyhayem, 7 F.4th at 1234.5\n In sum, under the “plain terms” of the TCPA, Loyhayem,\n7 F.4th at 1234, Howard stated a plausible claim. The\nmajority impermissibly adds language to the “plain terms”\nof the TCPA in concluding otherwise. Id. I respectfully\ndissent.\n\n\n\n\n5\n The majority seeks to avoid our holding in Loyhayem by maintaining\nthat in Loyhayem we did not address the issue before this panel. See\nMajority Opinion, p. 17, n.6. I beg to differ. In Loyhayem, we expressly\nruled that the TCPA “prohibits in plain terms, any call, regardless of\ncontent . . . using . . . an artificial or pre-recorded voice.” 7 F.4th at 1234\n(emphasis added). This language plainly encompasses a text message\ncall where the “content” used an artificial or pre-recorded voice.” Id.\nThe Supreme Court agrees. See Facebook, 592 U.S. at 408 n.8\n(describing the TCPA as prohibiting “artificial or prerecorded voice\ncalls, irrespective of the type of technology used”) (citation and internal\nquotation marks omitted). The majority seeks to downplay the quoted\nlanguage from Facebook, see Majority Opinion, p. 17-18, n.6 (cont.), but\nthe fact remains that the Supreme Court quote is verbatim.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11240443/", "author_raw": "Rawlinson, Circuit Judge, dissenting"}]}	JOHNNIE B RAWLINSON	DANIEL P COLLINS	SIDNEY A FITZWATER	1		{}	2	1	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10773858/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,774,380	Friends of Animals v. Burgum	2026-01-14	24-5786	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Richard C. Tallman, Bridget S. Bade, and Kenneth K. Lee, Circuit Judges.", "parties": "", "opinions": [{"author": "TALLMAN, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\nFRIENDS OF ANIMALS, No. 24-5786\n D.C. No.\n Plaintiff - Appellant,\n 3:22-cv-00365-\n ART-CLB\n v.\n\nDOUG BURGUM, in his official\ncapacity as Secretary of the Interior; OPINION\nUNITED STATES BUREAU OF\nLAND MANAGEMENT, an Agency\nof the United States,\n\n Defendants - Appellees.\n\n Appeal from the United States District Court\n for the District of Nevada\n Anne R. Traum, District Judge, Presiding\n\n Argued and Submitted October 21, 2025\n Phoenix, Arizona\n\n Filed January 14, 2026\n\nBefore: Richard C. Tallman, Bridget S. Bade, and Kenneth\n K. Lee, Circuit Judges.\n\n Opinion by Judge Tallman\n\f2 FRIENDS OF ANIMALS V. BURGUM\n\n\n SUMMARY\n\n\n Wild Free-Roaming Horses and Burros Act / National\n Environmental Policy Act\n\n The panel affirmed the district court’s summary\njudgment in favor of the U.S. Bureau of Land Management\n(BLM) in an action brought by Friends of Animals\nchallenging BLM’s decision to approve a contract with JS\nLivestock for a new off-range corral (ORC) on private land\nin Winnemucca, Nevada, to hold and feed up to 4,000 wild\nhorses and burros.\n The panel held that Friends established representational\nstanding on behalf of its members at summary judgment.\nThe specificity of the members’ allegations and their\nconcrete plans to visit the Winnemucca ORC were sufficient\nto establish an imminent, concrete, and particularized injury.\nA sufficient causal connection between the alleged injury\nand the challenged action also existed. Finally, the interests\nat stake were germane to Friends’ interests in protecting\nanimals, and neither the claims asserted nor the relief\nrequested required individual participation in the lawsuit.\n The Wild Free-Roaming Horses and Burros Act (Wild\nHorses Act) requires BLM to protect and manage wild free-\nroaming horses and burros as components of the public\nlands, and that excess animals be humanely captured and\nremoved for private maintenance and care. To comply with\nthe Wild Horses Act and its regulations, BLM required JS\nLivestock to follow BLM’s Comprehensive Animal Welfare\n\n\n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\f FRIENDS OF ANIMALS V. BURGUM 3\n\n\nProgram Standards and imposed additional requirements\nthrough its contract solicitation. Friends argued that the\nStandards and requirements did not protect the animals from\nunnecessary stress and suffering. The panel declined\nFriends’ invitation to review BLM’s determinations of what\npractices were necessary for humane treatment, and held that\nFriends had not shown that BLM abused its discretion by\nrelying on the Standards and additional contract\nrequirements to ensure humane treatment of the animals\nunder the Wild Horses Act.\n The panel rejected Friends’ argument that BLM violated\nthe National Environmental Policy Act (NEPA). First, BLM\ntook the requisite “hard look” at the Project’s environmental\nconsequences as required by NEPA. Second, BLM\nconducted a reasonable analysis of project\nalternatives. Finally, BLM provided a convincing statement\nof reasons to explain why the Project’s impacts were\ninsignificant, and why it issued a Finding of No Significant\nImpact. Therefore, BLM did not violate NEPA when it\ndecided not to issue an environmental impact statement.\n\f4 FRIENDS OF ANIMALS V. BURGUM\n\n\n COUNSEL\n\nAndreia E. Marcuccio (argued) and Jennifer Best, Friends of\nAnimals, Wildlife Law Program, Centennial, Colorado, for\nPlaintiff-Appellant.\nRebecca Jaffe (argued), Mark Pacella, Rickey Turner, and\nEzekiel A. Peterson, Attorneys; Environment & Natural\nResources Division; Adam R.F. Gustafson, Acting Assistant\nAttorney General; United States Department of Justice,\nWashington, D.C.; Virginia Tomova, Assistant United\nStates Attorney, Office of the United States Department of\nJustice, Las Vegas, Nevada; Janell Bogue, Attorney, United\nStates Department of the Interior, Sacramento, California;\nfor Defendants-Appellees.\nJennifer R. Lovko, Greenfire Law PC, Berkeley, California,\nfor Amici Curiae Wild Horse Education and Rewilding\nAmerica Now.\n\f FRIENDS OF ANIMALS V. BURGUM 5\n\n\n OPINION\n\nTALLMAN, Circuit Judge:\n\n At issue in this case is the United States Bureau of Land\nManagement’s (BLM) decision to approve a contract for a\nnew off-range corral (ORC) on private land near\nWinnemucca, Nevada, to hold and feed up to 4,000 wild\nhorses and burros. Plaintiff-Appellant Friends of Animals\n(Friends) contends that BLM’s decision violated the Wild\nFree-Roaming Horses and Burros Act (Wild Horses Act) and\nthe National Environmental Policy Act (NEPA). The parties\nfiled cross-motions for summary judgment below. Finding\nno violation of either statute, the district court granted\nsummary judgment in favor of BLM. Seeing no violations\neither, we affirm.\n I\n A\n In the early 1970s, the population of wild horses on\npublic lands had declined significantly because of the\nencroachment of man and the continued impact of so-called\n“mustangers” who harvested wild horses for commercial\npurposes. In response to public outcry over this population\ndecline, Congress enacted the Wild Horses Act in 1971 to\nprotect these animals, which were “fast disappearing from\nthe American scene.” 16 U.S.C. § 1331. Declaring that\n“wild free-roaming horses and burros are living symbols of\nthe historic and pioneer spirit of the West,” id., Congress\nthus “extended federal protection to wild horses and\nempowered BLM to manage horses roaming public ranges\nas part of its management of public lands.” Am. Wild Horse\n\f6 FRIENDS OF ANIMALS V. BURGUM\n\n\nCampaign v. Bernhardt, 963 F.3d 1001, 1004 (9th Cir.\n2020).\n As it turns out, though, wild horses and burros have\nvirtually no natural predators, and herd sizes can double\nevery four years. The Wild Horses Act became “so\nsuccessful at replenishing the population of wild horses that\n‘action [was] needed to prevent [the] program from\nexceeding its goals and causing animal habitat destruction.’”\nId. at 1004–05 (alteration in original) (quoting H.R. Rep. No.\n95-1122, 95th Cong., 2d Sess. 23 (1978)). Accordingly,\nCongress amended the Wild Horses Act so that BLM could\nmore effectively “manage wild free-roaming horses and\nburros in a manner that is designed to achieve and maintain\na thriving natural ecological balance on the public lands.” 16\nU.S.C. § 1333(a).\n Under the amended Wild Horses Act, Congress requires\nBLM to maintain an inventory of wild horses and burros on\npublic lands so that BLM can determine whether “an\noverpopulation exists on a given area” and whether “action\nis necessary to remove excess animals.” Id. § 1333(b)(2). If\nBLM makes such a finding, it “shall immediately remove\nexcess animals from the range so as to achieve appropriate\nmanagement levels.” Id. Removals must continue “until all\nexcess animals have been removed so as to restore a thriving\nnatural ecological balance to the range, and protect the range\nfrom the deterioration associated with overpopulation.” Id.\n Through its Wild Horse and Burro Program, BLM has\nremoved thousands of animals from the range to control herd\nsizes as mandated by the Wild Horses Act. When BLM\nremoves excess animals from the range, it moves them to\nORCs throughout the United States. ORCs primarily serve\nas temporary holding and preparation facilities for wild\n\f FRIENDS OF ANIMALS V. BURGUM 7\n\n\nhorses and burros after they have been removed from the\npublic range through gather-and-removal operations. The\nanimals are then prepared for adoption by the public or for\nplacement in longer-term facilities known as off-range\npastures (ORPs). While at an ORC, animals are transitioned\nto hay diets, examined by veterinarians, given necessary\nvaccinations and deworming procedures, provided hoof\ncare, and may even be trained in advance of adoption or sale.\nEach ORC is designed to handle large numbers of animals\nwith pens, corrals, alleys, and loading areas that facilitate\nanimal movement.\n B\n In March 2019, BLM estimated that there were over\n88,000 wild horses and burros on public lands—more than\nthree times higher than the appropriate management level.\nAt that time, BLM did not have enough ORC capacity to\naccommodate the wild horses and burros removed from the\nrange. And if left unchecked, this increasing overpopulation\nwould harm the land, other species, and the wild horses and\nburros themselves. Accordingly, in 2020, BLM solicited\nproposals for new ORCs to be located in Idaho, Nevada, and\nUtah. The solicitation required that each ORC be able to\nprovide humane care for a one-year period and provided a\nrenewal option for four or nine one-year extensions. The\nanimals would remain in the ORCs until placed into private\nmaintenance through adoptions or sales, or transported to\npermanent ORPs.\n JS Livestock submitted a proposal to build an ORC in\nWinnemucca in Humboldt County, Nevada, in response to\nBLM’s solicitation (Winnemucca ORC or Project). JS\nLivestock proposed to construct the Project on 100 acres of\nprivate land previously used for growing alfalfa. The\n\f8 FRIENDS OF ANIMALS V. BURGUM\n\n\nWinnemucca ORC would house up to 4,000 wild horses and\nburros. BLM issued JS Livestock an “apparent awardee\nletter,” confirming that it would award the contract upon\nsuccessful completion of an environmental assessment (EA).\n BLM then prepared a draft EA for the Winnemucca\nORC; notified interested individuals, organizations, and\nagencies; and made the draft EA available for public\ncomment. BLM received over 6,700 comments, including\ncomments from the Nevada Division of Wildlife, Humboldt\nCounty, and special interest groups, including Friends. In\nNovember 2021, BLM issued the final EA, Finding of No\nSignificant Impact (FONSI), and Record of Decision\n(ROD). BLM concluded that an environmental impact\nstatement (EIS) was unnecessary because the Winnemucca\nORC would not significantly impact the environment.\n BLM issued the contract to JS Livestock after JS\nLivestock obtained the required permits. BLM informs us\nthat the Winnemucca ORC is now operating and currently\nhouses about 3,000 animals.\n Friends filed suit challenging BLM’s action to contract\nwith JS Livestock for the Winnemucca ORC. Both parties\nmoved for summary judgment. The district court denied\nFriends’ motion and granted BLM’s motion, holding that\nBLM complied with NEPA and the Wild Horses Act. This\nappeal followed.\n II\n Because this case involves purported violations of the\nWild Horses Act and NEPA, the district court had original\njurisdiction pursuant to 28 U.S.C. § 1331. We have\nappellate jurisdiction pursuant to 28 U.S.C. § 1291.\n\f FRIENDS OF ANIMALS V. BURGUM 9\n\n\n “This court reviews de novo a grant of summary\njudgment.” In Def. of Animals v. U.S. Dep’t of Interior, 751\nF.3d 1054, 1061 (9th Cir. 2014). In doing so, “[w]e ‘must\ndetermine, viewing the evidence in the light most favorable\nto the nonmoving party, whether the district court correctly\napplied the relevant substantive law and whether there are\nany genuine issues of material fact.’” Id. (quoting Balint v.\nCarson City, 180 F.3d 1047, 1050 (9th Cir. 1999) (en banc)).\n Because the Wild Horses Act and NEPA do not\narticulate a standard of review, we review BLM’s action\nunder the Administrative Procedure Act (APA). Id. Under\nthe APA, we must set aside agency action if it is “arbitrary,\ncapricious, an abuse of discretion, or otherwise not in\naccordance with law.” 5 U.S.C. § 706(2)(A). “Agency\naction is arbitrary and capricious ‘if the agency has relied on\nfactors which Congress has not intended it to consider,\nentirely failed to consider an important aspect of the\nproblem, offered an explanation for its decision that runs\ncounter to the evidence before the agency, or is so\nimplausible that it could not be ascribed to a difference in\nview or the product of agency expertise.’” 350 Mont. v.\nHaaland, 50 F.4th 1254, 1263 (9th Cir. 2022) (quoting\nMotor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut.\nAuto. Ins., 463 U.S. 29, 43 (1983)).\n III\n A\n We examine first whether Friends has standing to bring\nthis case. Although BLM does not renew its argument on\nappeal that Friends lacks standing, because “[s]tanding is a\nnecessary element of federal court jurisdiction,” “we must\ndetermine that standing exists” before proceeding further.\n\f10 FRIENDS OF ANIMALS V. BURGUM\n\n\nAnimal Prot. Inst. of Am. v. Hodel, 860 F.2d 920, 923 (9th\nCir. 1988).\n The district court concluded that Friends established\nrepresentational standing on behalf of its members at\nsummary judgment. We agree.\n An organization “has standing to bring suit on behalf of\nits members when: (a) its members would otherwise have\nstanding to sue in their own right; (b) the interests it seeks to\nprotect are germane to the organization’s purpose; and\n(c) neither the claim asserted nor the relief requested\nrequires the participation of individual members in the\nlawsuit.” Hunt v. Wash. State Apple Adver. Comm’n, 432\nU.S. 333, 343 (1977).\n Turning to the first element, members of an organization\nestablish standing in their own right when (1) they have\nsuffered an “injury in fact” that is “concrete and\nparticularized” and “actual or imminent, not ‘conjectural’ or\n‘hypothetical’”; (2) the injury is “fairly traceable to the\nchallenged action,” meaning there is “a causal connection\nbetween the injury and the conduct complained of”; and\n(3) it is likely that a favorable judicial decision will redress\nthe injury. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61\n(1992) (citation modified). “Cognizable injuries include\nharm to aesthetic interests and environmental well-being.”\nAnimal Prot. Inst. of Am., 860 F.2d at 923.\n Here, three of Friends’ members submitted declarations\nat summary judgment describing their interest in wild horses\nand burros. Two members live in Nevada, allege a deep\nconnection to the animals, and state that they feel compelled\nto check on the animals at the Winnemucca ORC. One\nmember described an attempt he made to visit the Project\nsite, as well as his plans to visit the animals in light of BLM’s\n\f FRIENDS OF ANIMALS V. BURGUM 11\n\n\npublic tours of the site. The members further described\nalleged “inhumane and dangerous” conditions particular to\nthe Project and explained how seeing the animals there will\ncause them “great sadness” and distress.\n The specificity of the members’ allegations and their\nconcrete plans to visit the Winnemucca ORC are sufficient\nunder our precedent to establish an imminent, concrete, and\nparticularized injury. See id. at 924 (holding that plaintiff\norganization’s members “have a special interest in\nmonitoring the well-being of wild horses and burros\nremoved from the range and kept in BLM holding\nfacilities”); see also Seattle Audubon Soc. v. Espy, 998 F.2d\n699, 703 (9th Cir. 1993).\n A sufficient causal connection between the alleged\ninjury and the challenged action also exists. But for BLM’s\ndecision awarding the contract, Friends’ members would not\nbe subjected to the alleged injury to their aesthetic interests.\nA favorable outcome for Friends also would redress the\nalleged injury: its members would not be subjected to\nviewing wild horses and burros in allegedly inhumane\nconditions if this court finds in Friends’ favor. Thus,\nFriends’ members have shown standing to sue in their own\nright.\n In addition, the interests at stake are germane to Friends’\ninterests in protecting animals, and neither the claims\nasserted nor the relief requested require individual\nparticipation in the lawsuit. Accordingly, Friends has\nestablished representational standing to bring this lawsuit.\n B\n Turning to the merits, we first consider Friends’ Wild\nHorses Act claim.\n\f12 FRIENDS OF ANIMALS V. BURGUM\n\n\n The Wild Horses Act requires BLM to “protect and\nmanage wild free-roaming horses and burros as components\nof the public lands,” 16 U.S.C. § 1333(a), and mandates that\nexcess animals “be humanely captured and removed for\nprivate maintenance and care.” Id. § 1333(b)(2)(B). The\nimplementing regulations in turn prohibit “[t]reating a wild\nhorse or burro inhumanely.” 43 C.F.R. § 4770.1(f).\n“Humane treatment means handling compatible with animal\nhusbandry practices accepted in the veterinary community,\nwithout causing unnecessary stress or suffering to a wild\nhorse or burro.” Id. § 4700.0-5(e). “Inhumane treatment\nmeans any intentional or negligent action or failure to act\nthat causes stress, injury, or undue suffering to a wild horse\nor burro and is not compatible with animal husbandry\npractices accepted in the veterinary community.” Id.\n§ 4700.0-5(f).\n To comply with the Wild Horses Act and its regulations,\nBLM required JS Livestock to follow BLM’s\nComprehensive Animal Welfare Program Standards\n(Standards), which provide comprehensive guidance for\nbuilding and managing ORCs. BLM developed these\nStandards in collaboration with veterinarians and animal\nwelfare experts from the School of Veterinary Medicine at\nthe University of California, Davis, and based on its own\nexpertise. BLM also periodically reviews the Standards and\nmodifies them as necessary to improve effectiveness in\nensuring humane care for wild horses and burros. The\nStandards set forth requirements addressing, among other\nthings, the condition of ground surfaces, vaccination\nprocedures, water systems, feeding areas, and shade and\nshelter. They also require an on-site or on-call veterinarian’s\nroutine presence at the ORC. Animals “must be evaluated\ndaily by facility personnel to identify animals in poor body\n\f FRIENDS OF ANIMALS V. BURGUM 13\n\n\ncondition, poor hoof condition, injured, or in need of\nveterinary evaluation/treatment, and/or supplemental\nfeeding.”\n BLM imposed additional requirements through its\ncontract solicitation, which is incorporated by reference into\nthe ROD. These additional requirements include, for\nexample, that all pens be cleaned twice per year or more\noften when warranted; each pen provide at least 700 square\nfeet per animal and hold a maximum of 100 animals; 1\nanimals be fed good quality alfalfa or grass-alfalfa mix hay\nsufficient to meet their nutritional needs; and contractors\nminimize excitement and stress of animals in corrals and\nchutes to prevent injuries.\n Friends contends that the Standards and requirements do\nnot protect the animals from unnecessary stress and\nsuffering. Relying on public comments in the record,\nFriends maintains that the Project’s requirements for the\ndensity and number of animals, the size of the facilities,\ncleaning and disease management, and extreme weather\nshelter are all incompatible with accepted animal husbandry\npractices. Based on our review of the record, BLM\naddressed each of these issues through the Standards and\nadditional contract solicitation requirements. Friends simply\ndisagrees with BLM’s determination of what practices are\nnecessary for humane treatment and asks us to reweigh the\nevidence in favor of its own experts. But it is not within our\npurview to “engage in a battle of experts,” Morongo Band of\nMission Indians v. Fed. Aviation Admin., 161 F.3d 569, 577\n(9th Cir. 1998) (citation omitted), and we decline Friends’\ninvitation to do so. BLM is “entitled to rely on the opinions\n\n1\n The Winnemucca ORC as designed exceeds this requirement as each\npen has approximately 750 square feet per animal.\n\f14 FRIENDS OF ANIMALS V. BURGUM\n\n\nof its own experts,” which it did here. HonoluluTraffic.com\nv. Fed. Transit Admin., 742 F.3d 1222, 1233 (9th Cir. 2014);\nsee also Idaho Sporting Cong., Inc. v. U.S. Forest Serv., 92\nF.3d 922, 928 (9th Cir. 1996). Such reliance was not\narbitrary and capricious. See HonoluluTraffic.com, 742 F.3d\nat 1233.\n Friends raises three additional arguments as to the\nStandards, which we address now. First, Friends points out\nthat the Standards never went through notice and comment\nrulemaking and are not referenced in the Wild Horses Act or\nits regulations. While it is true that the Standards have not\nbeen vetted through the formal rulemaking process and are\nnot referenced in the Wild Horses Act, it is not particularly\nrelevant. The real question here is whether BLM acted\nreasonably in determining that the Standards, developed in\ncollaboration with veterinary experts, adequately ensure\nhumane treatment of animals at the Project, which, as\ndiscussed above, it did.\n Second, Friends cites various incidents and animal\ndeaths that have occurred at other ORCs as evidence that the\nStandards will not ensure the animals at the Winnemucca\nORC are humanely treated. Here, however, BLM has\nimposed additional requirements beyond the Standards.\nMoreover, Friends does not provide evidence that the\nincidents and deaths to which it cites are a result of\ncompliance with the Standards. To the extent Friends argues\nthat ORCs are inherently more hazardous than the wild, even\nif true, that does not mean that ORCs are necessarily\ninhumane.\n Third, Friends emphasizes that the Standards are not site-\nspecific to the Project, particularly as to shade and shelter.\nBut BLM considered the Standards in relation to the\n\f FRIENDS OF ANIMALS V. BURGUM 15\n\n\nWinnemucca ORC. With respect to shade and shelter, the\nStandards require that ORCs “provide access to shade and\nshelter . . . for compromised animals,” and that ORC\nmanagers evaluate and determine additional provisions for\nshade and shelter as appropriate. As a term of the contract,\nBLM is requiring JS Livestock to do so. The contract\nsolicitation further mandates that “[s]eparate corrals (with a\nminimum of 400 sq. ft./animal) shall be available for\nconfining lame, sick, or compromised animals needing\nspecial care, and must have access to overhead shelter and\nwind break available within the corrals.” Accordingly, the\nStandards are sufficiently specific to the Winnemucca ORC.\n In sum, Friends has not shown that BLM abused its\ndiscretion by relying on the Standards and additional\ncontract requirements to ensure humane treatment of the\nanimals under the Wild Horses Act.\n C\n We next consider Friends’ challenge to the district\ncourt’s holding that BLM did not violate NEPA. Friends\ncontends that BLM violated NEPA by failing to (1) take a\n“hard look” at the Project’s environmental impacts,\n(2) address reasonable alternatives, and (3) prepare an EIS.\n NEPA facilitates informed decisionmaking by requiring\nagencies to consider the environmental impacts of their\nactions. See Robertson v. Methow Valley Citizens Council,\n490 U.S. 332, 348–51 (1989). “NEPA does not contain\nsubstantive environmental standards,” but instead\n“establishes ‘action-forcing’ procedures that require\nagencies to take a ‘hard look’ at environmental\nconsequences.” Kern v. U.S. Bureau of Land Mgmt., 284\nF.3d 1062, 1066 (9th Cir. 2002) (quoting Metcalf v. Daley,\n214 F.3d 1135, 1141 (9th Cir. 2000)). Thus, while “NEPA\n\f16 FRIENDS OF ANIMALS V. BURGUM\n\n\nrequires the agency to analyze environmental impacts and\nprepare documents and make such analyses available for\npublic inspection, ‘NEPA does not require the agency to\nweigh environmental consequences in any particular way.’”\nCascadia Wildlands v. U.S. Bureau of Land Mgmt., 153\nF.4th 869, 880 (9th Cir. 2025) (quoting Seven Cnty.\nInfrastructure Coal. v. Eagle Cnty., 605 U.S. 168, 173\n(2025)).\n The procedural nature of NEPA limits the scope of\njudicial review for these cases. As the Supreme Court has\nrecently reiterated, “[t]he bedrock principle of judicial\nreview in NEPA cases can be stated in a word: Deference.”\nSeven Cnty. Infrastructure Coal., 605 U.S. at 185; see\nCascadia Wildlands, 153 F.4th at 903 (explaining that while\nSeven County addressed a challenge to an EIS, “its teachings\n[are] fully applicable” in the context of a challenge to an\nEA).\n Procedurally, an agency must prepare an EIS when\n“undertaking a ‘major Federal action[] significantly\naffecting the quality of the human environment.’” Montana\nWildlife Fed’n v. Haaland, 127 F.4th 1, 20 (9th Cir. 2025)\n(alteration in original) (quoting 42 U.S.C. § 4332(C)). “To\ndetermine whether an EIS is required, an agency may first\nprepare an [EA].” Id. An EA is a “concise public\ndocument,” 40 C.F.R. § 1508.1(h) (2020), 2 that “[b]riefly\nprovide[s] sufficient evidence and analysis for determining\nwhether to prepare an [EIS] or a finding of no significant\n\n2\n We cite to the 2020 version of NEPA’s implementing regulations\nbecause that was the version in effect at the time BLM issued the\nchallenged decision. See Audubon Soc’y of Portland v. Haaland, 40\nF.4th 967, 980 n.3 (9th Cir. 2022) (explaining that the version effective\nat the time the ROD was issued governs our analysis).\n\f FRIENDS OF ANIMALS V. BURGUM 17\n\n\nimpact.” Id. § 1501.5(c)(1) (2020). “If, after preparing the\n[EA], an agency determines that the action ‘will not have a\nsignificant effect on the human environment,’” the agency\n“need not prepare an EIS” and may instead issue a FONSI,\nwhich completes the NEPA process. Montana Wildlife\nFed’n, 127 F.4th at 20 (citation omitted). BLM properly did\nso here.\n 1\n As part of the EA, BLM was required to take a “hard\nlook” at the Project’s environmental consequences. Friends\ncontends that BLM failed to do so because it (1) relied on\nthe Project’s concentrated animal feeding operation (CAFO)\npermit in its analysis, (2) did not fully consider the Project’s\nimpacts on soil and groundwater, and (3) did not fully\nconsider the Project’s impacts on the horses and burros\nhoused at the ORC. For the reasons discussed below, we\nreject these arguments and conclude that BLM took the\nrequisite “hard look.”\n a\n Friends first argues that BLM used the CAFO permit to\nlimit the scope of its NEPA analysis and avoid addressing\nthe significance of the Project’s impacts.\n The United States Environmental Protection Agency\nregulates the discharge of pollutants from point sources to\nwaters of the United States through its National Pollutant\nDischarge Elimination System (NPDES) permitting\nprogram. Under this program, a CAFO operator must obtain\na NPDES permit, which sets forth requirements to prevent\npollution of water sources from manure and wastewater. 40\nC.F.R. § 122.23(a). Along with the CAFO permit, a large\nCAFO like the Winnemucca ORC must have a nutrient\n\f18 FRIENDS OF ANIMALS V. BURGUM\n\n\nmanagement plan (NMP) to manage waste and prevent its\ndischarge into waters of the United States. Id.\n§ 122.42(e)(1). These permits require operators to take\nspecific measures to prevent pollutant discharges, including\nensuring “adequate storage of manure,” id.\n§ 122.42(e)(1)(i); “proper[ly] manag[ing] mortalities (i.e.,\ndead animals),” id. § 122.42(e)(1)(ii); “ensur[ing] that clean\nwater is diverted,” id. § 122.42(e)(1)(iii); and preventing\nconfined animals from directly contacting waters of the\nUnited States, id. § 122.42(e)(1)(iv).\n In Nevada, CAFO permits are issued by the Nevada\nDivision of Environmental Protection (NDEP). While the\nCAFO permit does not regulate discharges to groundwater,\nNevada state law does. Thus, NDEP also requires the terms\nof a CAFO’s NMP to include provisions ensuring\ncompliance with state groundwater quality standards.\n Accordingly, BLM required JS Livestock to obtain a\nCAFO permit and NMP as part of the Project’s design\nfeatures and as a condition of its approval. BLM explained\nthat by requiring JS Livestock to obtain a CAFO permit and\nNMP, “[i]mpacts to surface and ground water, potential for\nnutrient release during flood events or creating nutrient\nplumes, would be negligible.” BLM concluded that the\nCAFO permit, NMP, and other design features would reduce\nthe risk of runoff and erosion, and ensure that all waste\nwould be stored “in a manner that prevents wastes and\nsediment from entering surface water and seepage of\nnutrients into ground water.” Thus, any impacts to\ngroundwater or soil would be insignificant.\n In Robertson, the Supreme Court concluded that a\nfederal agency may condition project approval on obtaining\ncertain state agency permits when that project’s\n\f FRIENDS OF ANIMALS V. BURGUM 19\n\n\nenvironmental effects “cannot be mitigated unless\nnonfederal government agencies take appropriate action.”\n490 U.S. at 352–53 (explaining that in the context of a\nmitigation plan “it would be incongruous to conclude that\nthe Forest Service has no power to act until the local agencies\nhave reached a final conclusion on what mitigating measures\nthey consider necessary”). The principles set forth in\nRoberston are instructive here. BLM imposed as a condition\nof approval a requirement that JS Livestock obtain a CAFO\npermit and NMP and then analyzed the Project’s\nenvironmental impacts under the assumption that those\npermits would be in place. Consistent with Robertson, the\nEA’s discussion addressed the environmental impacts and\n“discussed” the CAFO permit and NMP requirements “in\nsufficient detail to ensure that environmental consequences\n[were] fairly evaluated.”3 Id. at 352; see also Env’t Prot.\nInfo. Ctr. v. U.S. Forest Serv., 451 F.3d 1005, 1015 (9th Cir.\n2006) (upholding EA that “analyze[d] the Project under the\nenumerated constraints and conclude[d] that any\nenvironmental impacts [would] not be significant”). BLM’s\ndetermination that the CAFO permit and NMP would\nalleviate the Project’s impacts, particularly with respect to\ngroundwater and soil, was reasonable.\n Friends relies on South Fork Band Council of Western\nShoshone v. United States Department of the Interior for the\nproposition that BLM neglected its NEPA obligations by\nrelying on the CAFO permit. 588 F.3d 718 (9th Cir. 2009)\n(South Fork). In South Fork, BLM did not discuss the air\nquality impacts of transporting ore to an off-site processing\n\n3\n For this reason, BLM also did not abuse its discretion by conditioning\nits approval on obtaining the CAFO permit, even though NDEP had not\nstarted drafting the CAFO permit. See id. at 352–53.\n\f20 FRIENDS OF ANIMALS V. BURGUM\n\n\nfacility in its EIS for a mining project because the off-site\nfacility operated “pursuant to a state permit under the Clean\nAir Act.” Id. at 726. The court therefore held that BLM\nviolated NEPA because “[a] non-NEPA document—let\nalone one prepared and adopted by a state government—\ncannot satisfy a federal agency’s obligations under NEPA.”\nId. (citation omitted). But unlike BLM’s omission in South\nFork, here, BLM did evaluate the Project’s environmental\nimpacts. BLM then concluded that any impacts to soil and\ngroundwater would be rendered insignificant, in part,\nthrough Nevada’s CAFO and NMP permitting process and\ncompliance with state water quality regulations.\n Friends also contends that even if BLM could rely on the\nCAFO permit in its environmental analysis, the CAFO\npermit did not render the Project’s impacts insignificant.\nThe two cases Friends relies on for this argument are\ndistinguishable.\n In Environmental Defense Center v. Bureau of Ocean\nEnergy Management, the agencies relied on a NPDES\npermit in their EA approving a project for offshore well\nstimulation treatments to conclude that any project impacts\nwould be insignificant to the marine environment. 36 F.4th\n850, 874 (9th Cir. 2022). The court concluded that the\ndefendant agencies improperly relied on the NPDES permit\nbecause the testing the NPDES permit required was not\nintended for the treatments at issue and was inadequate to\nmeasure the impacts of well stimulation treatments. Id. at\n874–75. The permit would have to be modified to\nadequately test those treatments, but because a different\nagency issued the permit, the defendant agencies had no\npower to do so. Id. at 875.\n\f FRIENDS OF ANIMALS V. BURGUM 21\n\n\n In contrast to the permit in Environmental Defense\nCenter, the CAFO permit is designed to address the exact\nimpacts of an animal operation like the Winnemucca ORC.\nAs noted by the district court, “the fit between the permit and\nthe regulated activity is” seamless “because the effluents of\na horse corral are precisely the type of discharge the CAFO\npermit is designed to prevent.” Further, no modification to\nthe CAFO permit is required because, it is already “tailored\nto specifically address the exact type of animal facility at\nissue.” Accordingly, Environmental Defense Center is not\ncontrolling.\n Friends’ reliance on Calvert Cliffs’ Coordinating\nCommittee, Inc. v. United States Atomic Energy Commission\nis also misplaced. 449 F.2d 1109 (D.C. Cir. 1971). In that\ncase, the Atomic Energy Commission had passed a rule\nprohibiting its board from “conducting an independent\nevaluation and balancing of certain environmental factors if\nother responsible agencies [had] already certified that their\nown environmental standards are satisfied.” Id. at 1117.\nHere, BLM did not prohibit consideration of any\nenvironmental impacts; rather, it considered potential\nimpacts and concluded that compliance with the CAFO\npermit would ensure that groundwater impacts would be\nnegligible.\n Accordingly, we see no abuse of discretion in BLM’s\nreliance on the CAFO permit and NMP in considering its\nenvironmental impact analysis.\n b\n Overlapping with its CAFO permit argument, Friends\nnext contends that BLM failed to take a “hard look” at the\nimpact on groundwater and soil, and ignored evidence\nrelated to flooding.\n\f22 FRIENDS OF ANIMALS V. BURGUM\n\n\n As to groundwater, Friends asserts that BLM\ncontradicted its own experts’ findings that groundwater\ncontamination is likely to occur due to the lack of mitigation\nmeasures for the area’s high-water table. But the record\nreflects that BLM considered groundwater impacts and\nadequately responded to public comments regarding this\nissue. The EA determined that impacts to groundwater\nwould be negligible with the CAFO permit and NMP in\nplace. Further, an engineered drainage system would catch\nany runoff from the site. These features would prevent\nseepage of nutrients into groundwater.4\n As to soil, Friends argues that BLM acknowledged the\n“poor soil composition” at the Project site but failed to\nprovide any evidence that the Project’s design features\nwould adequately prevent impacts to the soil. But BLM\nrequired the Project to implement a dust prevention and\ncontrol plan, establish a plan to manage soil drainage, and\nobtain a CAFO permit to reduce impacts to soil. Friends\nmay disagree with BLM’s conclusion, but the record shows\nthat there is “a rational connection between the facts found\nand the choice[] made” by BLM in the EA. Nw. Ecosystem\nAll. v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1140 (9th\nCir. 2007) (quoting Nat’l Ass’n of Home Builders v. Norton,\n340 F.3d 835, 841 (9th Cir. 2003)). Further, to the extent\nthat Friends complains the requirements were not set forth in\nsufficient detail (i.e., BLM required adequate sloping to\nensure runoff, but did not specify what degree the sloping\nneeded to be), Friends in essence asks us to impose “a\n\n\n4\n Although Friends claims that “BLM’s own experts opposed BLM’s\nreliance on the CAFO permit,” the email cited is part of a thread in which\na BLM employee was confirming that NDEP regulated groundwater\nquality.\n\f FRIENDS OF ANIMALS V. BURGUM 23\n\n\nsubstantive requirement that a complete mitigation plan be\nactually formulated and adopted” in BLM’s NEPA\nevaluation. Robertson, 490 U.S. at 352. That is not what\nNEPA prescribes. Id.\n Lastly, we agree with the district court that the record\nreflects BLM addressed potential impacts of flooding by\nboth mandating compliance with the CAFO permit and\nrecommending measures to prevent runoff in the event of a\n100-year flood.\n Accordingly, we conclude that BLM took the requisite\n“hard look” at the Project’s impacts on groundwater and soil,\nand in doing so, it did not neglect to consider evidence of\nflooding.\n c\n Next, we consider whether BLM took a “hard look” at\nthe Project’s impacts on the wild horses and burros held at\nthe facility. See Am. Horse Prot. Ass’n, Inc. v. Andrus, 608\nF.2d 811, 814 (9th Cir. 1979) (noting there that “the\nenvironmental impact [was] not solely on the rangelands, but\non the horses as well” and that “wild free-roaming\nhorses . . . [are] ‘an integral part of the natural system of the\npublic land’” (quoting 16 U.S.C. § 1331)).\n The EA does not have a separate section or conclusion\nexplicitly stating that there would be no significant impact\non the wild horses and burros housed at the Winnemucca\nORC. But as discussed, BLM reasonably relied on the\nStandards and contract requirements to ensure humane\ntreatment of the animals housed at the facility. And it\nconcluded in the FONSI that the Project would not have any\nsignificant environmental impacts.\n\f24 FRIENDS OF ANIMALS V. BURGUM\n\n\n Friends nevertheless asserts that the EA is deficient\nbecause in response to public comments, BLM stated that\nimpacts on wild horses and burros within the facility were\n“outside the scope” of the EA and that there were no wild\nhorses or burros in the Project area. Relatedly, Friends\ncontends that BLM improperly relied on unspecified EAs for\ngather-and-removal actions (gather EAs) to conclude there\nwould be no significant impacts on the horses and burros at\nthe Project facility. These arguments stem primarily from a\nBLM response to public comments, in which BLM stated:\n\n This comment is outside the scope of this EA.\n Impacts to individual animals are analyzed in\n site-specific EAs. There are several other\n ORC[s] throughout the west in similar\n settings/climates with the same or similar\n requirements. The conditions as a result of\n these requirements in these other facilities\n have shown to provide humane care for the\n animals. Regardless of where these WHBs\n are cared for, any WHB that is removed from\n public land will be cared for in a similar\n facility with the same or similar requirements\n as described in the [site-specific] EAs,\n therefore there is not a need to analyze the\n impacts to individual animals within this EA.\n\n As clarified by BLM’s counsel at oral argument, this\ncomment explains that BLM analyzes the impacts of\ngathering, transporting, and holding individual animals\n(including at ORCs) in separate gather EAs. Thus, BLM\nconcluded that because those impacts on animals are\nseparately considered, and because the decision at hand\nrelated only to funding the contract for the Winnemucca\n\f FRIENDS OF ANIMALS V. BURGUM 25\n\n\nORC, comments addressing the general impact of capture\nand captivity on animals were outside the scope of the EA.5\n In isolation, BLM’s response to the public comments\ncould be concerning. But in the context of the entire EA, it\nis clear BLM did not ignore impacts on animals to be held at\nthe facility. BLM analyzed and addressed humane treatment\nof the animals at the facility by requiring the contractor to\nadopt and comply with the Standards and other requirements\nto ensure animals are properly taken care of while housed at\nthe Winnemucca ORC. Mindful of the lower standard for\nEAs, we conclude that BLM “reasonably explained its\nenvironmental assessment.” Citizens Action Coal. of\nIndiana, Inc. v. Fed. Energy Regul. Comm’n, 125 F.4th 229,\n242 (D.C. Cir. 2025) (“When presented with an arbitrary and\ncapricious challenge, we must consider whether [the agency]\nreasonably explained its environmental assessment, not\nwhether it used certain magic words.”).\n Likening this case to Kern, Friends also asserts that\nBLM’s analysis of impacts on wild horses and burros\nviolated NEPA because its reliance on the Standards\nconstitutes impermissible tiering to a non-NEPA document.\n284 F.3d 1062. In Kern, the plaintiffs alleged that BLM\nfailed to adequately consider the impact of root fungus on a\nspecific variety of cedar. Id. at 1066. The court held that\nBLM’s EIS and EA were inadequate because it tiered its\ntwo-sentence analysis to a set of guidelines (for mitigating\n\n\n5\n Counsel for Friends also confirmed at oral argument that Friends is not\nchallenging the congressionally mandated capture and captivity of\nexcess wild horses and burros as a general matter. See Oregon Nat.\nDesert Ass’n v. U.S. Forest Serv., 957 F.3d 1024, 1031 (9th Cir. 2020)\n(“[A] party cannot challenge an entire agency management regime under\nthe auspices of the APA.”).\n\f26 FRIENDS OF ANIMALS V. BURGUM\n\n\ndamage caused by the root fungus) that had never been\nreviewed under NEPA. Id. at 1073–74.\n In contrast to Kern, here, BLM did not tier its analysis to\na non-NEPA document; instead, it incorporated the contract\nsolicitation by reference into the EA, which incorporated the\nStandards as a contract requirement. This incorporation was\nnot improper: “where an agency merely incorporates\nmaterial ‘by reference,’ without impeding agency and public\nreview of the action, the agency is not improperly tiering.”\nAll. for the Wild Rockies v. U.S. Forest Serv., 907 F.3d 1105,\n1119 (9th Cir. 2018) (citation omitted).6\n Finally, Friends argues that BLM did not consider how\nthe Winnemucca ORC would specifically impact the\nanimals, including the Project’s soil conditions, size and\ncapacity of the ORC, shelter, and disease transmission. As\ndiscussed above, however, BLM considered these issues and\nimposed the Standards and additional requirements to ensure\nany impact would be nonsignificant. “While [Friends] may\ndisagree with the [EA’s] substantive conclusion\nregarding . . . impacts [on horses], the [EA’s] discussion of\nthose impacts was reasonably thorough.” Laguna\nGreenbelt, Inc. v. U.S. Dep’t of Transp., 42 F.3d 517, 526\n(9th Cir. 1994).\n In sum, we are satisfied that BLM took the requisite\n“hard look” at the environmental consequences of the\nProject as required by NEPA.\n\n\n\n6\n BLM’s citation to site-specific gather EAs also does not appear to be\nan attempt to tier or rely on unspecified documents to analyze the\nWinnemucca ORC. Rather, BLM was clarifying the scope of its\nassessment and the federal action at issue.\n\f FRIENDS OF ANIMALS V. BURGUM 27\n\n\n 2\n Next, we turn to whether BLM conducted a reasonable\nanalysis of project alternatives.\n NEPA requires a federal agency to “study, develop, and\ndescribe appropriate alternatives to recommended courses of\naction in any proposal which involves unresolved conflicts\nconcerning alternative uses of available resources.” 42\nU.S.C. § 4332(H). “[A]n agency’s obligation to consider\nalternatives under an EA is a lesser one than under an EIS,”\nand need only include a brief discussion of reasonable\nalternatives. Native Ecosystems Council v. U.S. Forest\nServ., 428 F.3d 1233, 1246 (9th Cir. 2005).\n “[T]he nature and scope of the proposed action” dictates\nthe range of alternatives for consideration. Alaska\nWilderness Recreation & Tourism Ass’n v. Morrison, 67\nF.3d 723, 729 (9th Cir. 1995) (quoting Idaho Conservation\nLeague v. Mumma, 956 F.2d 1508, 1520 (9th Cir. 1992)).\nThus, “[w]hether the range of alternatives considered is\nreasonable is to some degree circumscribed by the scope of\nthe statement of ‘purpose and need.’” Env’t Def. Ctr., 36\nF.4th at 876 (quoting Westlands Water Dist. v. U.S. Dept. of\nInterior, 376 F.3d 853, 865 (9th Cir. 2004)). Accordingly,\nwe “begin[] by determining whether or not the [EA’s]\nPurpose and Need Statement was reasonable.” Westlands,\n376 F.3d at 865. If it is, then we employ a “rule of reason”\nanalysis to determine whether the agency considered an\nadequate range of alternatives to the proposed action. Id. at\n868 (citation omitted).\n\f28 FRIENDS OF ANIMALS V. BURGUM\n\n\n BLM set forth the following purpose and need statement\nfor the Winnemucca ORC:\n\n The purpose of the Proposed Action is to\n construct, maintain, and operate an ORC\n facility through a BLM contract with the\n Contractor for a maximum of 4,000 excess\n WHB on 100 acres of private land near\n Winnemucca, Nevada. The need for the\n Proposed Action is to provide holding space\n necessary to safely and humanely care for\n excess WHB removed from public lands\n consistent with authority provided in Section\n 3 of the [Wild Horses Act].\n\nFriends contends BLM drafted this statement too narrowly\nto avoid addressing reasonable project alternatives and thus\npreordained the outcome of the action. BLM responds that\nit properly tailored the purpose and need statement to the\nscope of the proposal under consideration.\n BLM has the better argument. BLM has considerable\ndiscretion in tailoring the purpose and need of the Project.\nSee Env’t Def. Ctr., 36 F.4th at 876 (explaining that\n“agencies enjoy a good deal of discretion in framing the\npurpose and need of an EA or EIS” (citation modified)).\nFurther, when preparing the purpose and need statement,\nBLM must “consider the views of Congress” as expressed\n“in the agency’s statutory authorization to act.” Nat’l Parks\n& Conservation Ass’n v. U.S. Bureau of Land Mgmt., 606\nF.3d 1058, 1070 (9th Cir. 2010) (quoting Citizens Against\nBurlington, Inc. v. Busey, 938 F.2d 190, 196 (D.C. Cir.\n1991)). The need to provide holding space for excess\nanimals is consistent with Congress’s directives in the Wild\n\f FRIENDS OF ANIMALS V. BURGUM 29\n\n\nHorses Act, including to “immediately remove excess\nanimals from the range.” 16 U.S.C. § 1333(b)(2). Thus, it\ndoes not appear unreasonable that BLM tailored the purpose\nand need statement to JS Livestock’s specific proposal to\ncontract for an ORC on private land.\n Additionally, as the district court explained, the Project’s\npurpose and need statement “does not lead to a preordained\nconclusion” because “BLM adequately considered the\nalternative of no action.” See League of Wilderness Defs.-\nBlue Mountains Biodiversity Project v. U.S. Forest Serv.,\n689 F.3d 1060, 1070 (9th Cir. 2012) (concluding that\nalthough some language “read in isolation” suggested that\npurpose and need statement contemplated implementation of\nstudy plan, the objectives were not too narrow when\nconsidered in context). Accordingly, we conclude that the\npurpose and need statement for the Winnemucca ORC was\nreasonable.\n The next prong of the analysis is whether BLM\nconsidered an adequate number of alternatives given the\nProject’s purpose and need. Here, BLM considered two\nalternatives in its EA: funding the Winnemucca ORC and\ntaking no action.\n We note at the outset that we have previously upheld\nEAs that considered just two final alternatives. See, e.g., Ctr.\nfor Biological Diversity v. Salazar, 695 F.3d 893, 916 (9th\nCir. 2012) (upholding EA where agency initially considered\nmultiple alternatives, but ultimately considered only two of\nthose alternatives in detail); Earth Island Inst. v. U.S. Forest\nServ., 697 F.3d 1010, 1012 (9th Cir. 2012) (upholding EA\nthat considered the preferred alternative and no-action\nalternative in detail and only briefly considered another\nalternative proposed by the plaintiff); N. Idaho Cmty. Action\n\f30 FRIENDS OF ANIMALS V. BURGUM\n\n\nNetwork v. U.S. Dep’t of Transp., 545 F.3d 1147, 1153 (9th\nCir. 2008) (upholding EA that only discussed two\nalternatives); Native Ecosystems Council, 428 F.3d at 1245\n(upholding EA that considered six alternatives, four of\nwhich were rejected without detail).\n Friends nevertheless maintains that BLM’s analysis of\ntwo alternatives was insufficient because it failed to consider\nother alternatives, including (1) contracting with a long-term\nORP, (2) establishing a “BLM-owned and managed” ORC,\n(3) reducing the number of removed horses and burros from\nthe range, and (4) imposing conditions that would make the\nWinnemucca ORC safer and more humane. But the\nProject’s purpose is to provide more ORC capacity, not to\nreevaluate the system of management of wild horses and\nburros. Accordingly, Friends’ suggested alternatives to\nreduce the number of horses removed from the range and to\ncontract with a long-term ORP are beyond the scope of the\naction. See Oregon Nat. Desert Ass’n, 957 F.3d at 1031.\nCreating a “BLM-owned and managed” ORC also falls\noutside the scope of the specific action proposed by JS\nLivestock.\n Friends’ assertion that BLM failed to consider an\nalternative version of the contract with different terms\nrelated to the conditions for the animals is also unavailing\nfor at least two reasons. First, although Friends asserts that\nthe public proposed this as a Project alternative, the\ncomment cited appears to be an attack on the standards of\ncare adopted by BLM—not a true proposal for a Project\nalternative. Because Friends does not direct us to any record\ncitations containing this argument, we deem it unexhausted\nand do not consider it. See Earth Island Inst. v. U.S. Forest\nServ., 87 F.4th 1054, 1064–65 (9th Cir. 2023) (“Because [the\nplaintiff] failed to raise its proposed alternatives during the\n\f FRIENDS OF ANIMALS V. BURGUM 31\n\n\ncomment period, it failed to exhaust its argument, and we\nneed not reach the merits of the suggested alternatives.”)\nSecond, and in any event, “it makes little sense to fault an\nagency for failing to consider more environmentally sound\nalternatives to a project which it has properly determined,\nthrough its decision not to file an impact statement, will have\nno significant environmental effects anyway.” Id. at 1066\n(quoting Earth Island Inst., 697 F.3d at 1023); see also\nHeadwaters, Inc. v. U.S. Bureau of Land Mgmt., 914 F.2d\n1174, 1181 (9th Cir. 1990) (explaining that “NEPA does not\nrequire a separate analysis of alternatives which are not\nsignificantly distinguishable from alternatives actually\nconsidered, or which have substantially similar\nconsequences”).\n As a final issue, Friends says that BLM did not address\nthe “no-action” alternative in “sufficient detail.” We\ndisagree. The EA explains that under the no-action\nalternative, the Project site would not be impacted because\nthere would be no change to the local environment due to\nany federal action. The EA addresses the no-action\nalternative with respect to soil, raptors and migratory birds,\nterrestrial wildlife, and social and economic conditions.\nBLM concluded that the no-action alternative would result\nin BLM not funding the contract and that “[i]t would be\nspeculative to assume how the Contractor would use the\nexisting agriculture land.” Such a statement was not\nunreasonable: “NEPA does not demand a full discussion of\nland use alternatives whose implementation is deemed\nremote and speculative.” Friends of Endangered Species,\nInc. v. Jantzen, 760 F.2d 976, 988 (9th Cir. 1985) (citation\nmodified).\n Accordingly, we conclude that BLM’s “consideration of\na ‘no action’ alternative and its ‘preferred’ alternative met its\n\f32 FRIENDS OF ANIMALS V. BURGUM\n\n\nstatutory and regulatory duty to prepare appropriate\nalternatives for the [] Project EA.” Native Ecosystems\nCouncil, 428 F.3d at 1249.\n 3\n Friends’ final challenge under NEPA is to BLM’s\ndecision to issue a FONSI. Friends contends that BLM\nfailed to provide a convincing statement that the Project’s\nimpacts would be insignificant and that it instead should\nhave moved forward with preparation of an EIS.\n NEPA requires BLM to prepare an EIS if the Project will\n“significantly affect[] the quality of the human\nenvironment.” 42 U.S.C. § 4332(C). That requirement can\nbe triggered if “substantial questions are raised as to whether\na project may cause significant degradation of some human\nenvironmental factor.” Blue Mountains Biodiversity Project\nv. Blackwood, 161 F.3d 1208, 1212 (9th Cir. 1998) (citation\nmodified). Agencies determine significance by “analyz[ing]\nthe potentially affected environment and the degree of the\neffects of the action.” 40 C.F.R. § 1501.3(b) (2020). When\nconsidering the degree of the effects, agencies look at “short-\nand long-term effects,” “beneficial and adverse effects,”\n“[e]ffects on public health and safety,” and “[e]ffects that\nwould violate Federal, State, Tribal, or local laws protecting\nthe environment.” Id. § 1501.3(b)(2) (2020).\n BLM addressed the above factors in its FONSI and\nconcluded that the proposed action would not cause\nsignificant environmental impacts. It also incorporated the\nEA by reference into the FONSI analysis. It described the\npotentially affected environment, including the affected area\nand its resources, like migratory bird species. It considered\nthat while there would be short-term impacts during\nconstruction, such as impacts to air quality, soil, and noise,\n\f FRIENDS OF ANIMALS V. BURGUM 33\n\n\nthose impacts would dissipate once construction ended. It\nfound that the long-term benefits of providing a safe,\nsanitary holding facility for wild horses and burros would\noutweigh any short-term effects. It addressed both\nbeneficial and adverse impacts and confirmed that no\nconcerns or known instances were identified where public\nhealth or safety would be affected. It also concluded that the\naction would comply with applicable federal, state, and local\nlaws.\n Friends argues that BLM erred in reaching its conclusion\nof no significant impact because it relied on “hypothetical\nmitigation measures” and that mitigated FONSIs are subject\nto additional requirements with respect to analysis of\nmitigation measures. See 40 C.F.R. § 1501.6(c) (2020); 43\nC.F.R. § 46.130(b) (2008). But BLM did not impose after-\nthe-fact mitigation measures; rather, it required the\ncontractor to comply with several requirements, like the\nStandards and obtaining a CAFO permit, as mandatory\ncomponents of the contract. By incorporating those\nmeasures “throughout the plan of action . . . the effects\n[were] analyzed with those measures in place.” Env’t Prot.\nInfo. Ctr., 451 F.3d at 1015. Accordingly, “it cannot be said\nthat the EA fails to analyze the effects of the mitigation\nmeasures; instead, the EA analyzes the Project under the\nenumerated constraints and concludes that any\nenvironmental impacts will not be significant.” Id. And to\nthe extent Friends complains that the EA’s discussion of\nthese design features is too short, we are mindful that an EA\nis intended to be a “concise public document,” 40 C.F.R.\n§ 1508.1(h) (2020), “[b]riefly providing sufficient evidence\nand analysis for determining whether to prepare an [EIS] or\na finding of no significant impact.” Id. § 1501.5(c)(1)\n(2020) (emphasis added).\n\f34 FRIENDS OF ANIMALS V. BURGUM\n\n\n Friends also argues that BLM provided no scientific\nanalysis or evidence in support of its determination that the\nProject would not cause significant impacts. In doing so,\nFriends reiterates the same arguments we have rejected\nabove regarding the insufficiency of the CAFO permit and\nimpacts to soil, groundwater, and the animals.\n We conclude that BLM provided a “convincing\nstatement of reasons to explain why the Project’s impacts are\ninsignificant.” See Blue Mountains Biodiversity Project,\n161 F.3d at 1212 (citation modified). Therefore, BLM did\nnot violate NEPA when it decided not to issue an EIS.\n ***\n We conclude that BLM did not abuse its discretion or act\ncontrary to law when it approved funding for the\nWinnemucca ORC contract. In reaching this determination,\nwe hold that BLM (1) did not violate the Wild Horses Act’s\nmandate to ensure humane treatment of wild horses and\nburros; (2) reasonably relied on contractor compliance with\nthe CAFO permit in its environmental impact analysis;\n(3) took a “hard look” at the Project’s impacts to\ngroundwater, soil, and animals housed at the facility; (4) did\nnot abuse its discretion by considering only two alternatives;\nand (5) provided a convincing statement of reasons why the\nProject’s environmental effects would not be significant.\nThe district court thus properly granted summary judgment\nto BLM, and it likewise properly denied Friends’ motion for\nsummary judgment.\n AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11240965/", "author_raw": "TALLMAN, Circuit Judge:"}]}	RICHARD C TALLMAN	BRIDGET S BADE	KENNETH K LEE	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10774380/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,775,420	Diamond Sands Apartments, LLC v. Clark County Nevada	2026-01-16	25-2884	U.S. Court of Appeals for the Ninth Circuit	{"judges": "Before: Mary M. Schroeder and Michelle T. Friedland, Circuit Judges, and Karen E. Schreier, District Judge.", "parties": "", "opinions": [{"author": "Opinion by Judge Schreier", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\nDIAMOND SANDS No. 25-2884\nAPARTMENTS, LLC,\n D.C. No.\n 2:25-cv-00137-\n Plaintiff - Appellant,\n ART-NJK\n v.\n OPINION\nCLARK COUNTY NEVADA,\n\n Defendant - Appellee.\n\n Appeal from the United States District Court\n for the District of Nevada\n Anne R. Traum, District Judge, Presiding\n\n Argued and Submitted November 21, 2025\n San Jose, California\n\n Filed January 16, 2026\n\n Before: Mary M. Schroeder and Michelle T. Friedland,\n Circuit Judges, and Karen E. Schreier, District Judge.\n\n Opinion by Judge Schreier\n\n\n The Honorable Karen E. Schreier, United States District Judge for the\nDistrict of South Dakota, sitting by designation.\n\f2 DIAMOND SANDS APARTMENTS, LLC V. CLARK COUNTY NEVADA\n\n\n SUMMARY\n\n\n Preliminary Injunction / Excessive Fines Clause\n\n The panel affirmed the district court’s denial of plaintiff\nDiamond Sands Apartments, LLC’s motion for a\npreliminary injunction in Diamond Sands’ suit alleging that\na Clark County, Nevada ordinance prohibiting unlicensed\nshort-term property rentals runs afoul of the Eighth\nAmendment’s Excessive Fines Clause.\n Diamond Sands, the owner and operator of a 360-unit\napartment complex in Las Vegas, Nevada, argued that the\nCounty’s enforcement scheme on its face and as applied\nunconstitutionally penalizes property owners for short-term\nrental activity conducted by tenants.\n The panel held that the record demonstrated that the\ndistrict court did not abuse its discretion in concluding that\nDiamond Sands failed to show serious questions that the\nCounty’s fines of $4,000 were grossly disproportionate to\nthe gravity of the underlying offense. The fines were not\ngrossly disproportionate because (1) Diamond Sands had\nknowledge of the improper short-term rentals, failed to\neliminate the violations, and therefore bore some culpability\nfor the short-term rental ordinance violations; (2) the\nordinance authorized alternative remedies, though the\nCounty ultimately chose to impose fines, which were on the\nlow end of the authorized range; and (3) the ordinance was\naimed at deterring harm to County residents from short term\nrentals and the County’s legislative findings on the impact\n\n\n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\f DIAMOND SANDS APARTMENTS, LLC V. CLARK COUNTY NEVADA 3\n\n\nof the harms supplied a rational basis for the fines\nimposed. Accordingly, Diamond Sands’ as-applied\nchallenge failed.\n Diamond Sands’ facial challenge to the Clark County\nordinance failed because Damond Sands failed to\ndemonstrate that the ordinance is unconstitutional in every\nconceivable application.\n\n\n\n COUNSEL\n\nAdam R. Fulton (argued) and Steve Shevorski, Jennings &\nFulton LTD, Las Vegas, Nevada, for Plaintiff-Appellant.\nTimothy J. Allen (argued), Deputy District Attorney; Steven\nB. Wolfson, Clark County District Attorney; Clark County\nOffice of the District Attorney, Las Vegas, Nevada; for\nDefendant-Appellee.\n\f4 DIAMOND SANDS APARTMENTS, LLC V. CLARK COUNTY NEVADA\n\n\n OPINION\n\n\nSCHREIER, District Judge\n\n Clark County, Nevada enacted an ordinance that\nprohibits short-term property rentals without authorization.\nAfter determining that Diamond Sands Apartments, LLC\nviolated that ordinance, Clark County imposed fines totaling\n$4,000 on the apartment complex. Diamond Sands sought\ndeclaratory and injunctive relief, arguing that Clark\nCounty’s ordinance runs afoul of the Eighth Amendment’s\nExcessive Fines Clause. The district court denied Diamond\nSands’ motion for a preliminary injunction. We have\njurisdiction under 28 U.S.C. § 1292(a)(1), and we affirm.\n I.\n A.\n Diamond Sands owns and operates a 360-unit apartment\ncomplex in Las Vegas, Nevada. Units are leased pursuant to\nlong-term rental agreements that prohibit tenants from\nrenting units to third parties without authorization.\n Clark County received numerous complaints that certain\nunits at Diamond Sands were being used as short-term\nrentals, including for loud parties. In response, the County’s\nCode Enforcement Unit opened investigations into the\nidentified units and spoke with Diamond Sands’ property\nmanagement about the complaints. In multiple instances,\nenforcement officers confirmed through in-person\ninspections and interviews with residents that the identified\nunits had been rented for short-term stays through Airbnb.\n\f DIAMOND SANDS APARTMENTS, LLC V. CLARK COUNTY NEVADA 5\n\n\n Based on those investigations, the County issued notices\nof abatement to Diamond Sands for violating the County’s\nshort-term rental ordinances, which prohibit operating short-\nterm rentals without proper authorization and permit the\nimposition of penalties—including fines between\n $1,000 and $10,000 per violation and potential criminal\nliability—against property owners. Clark Cnty. Code\n§ 7.100.230(e)(2). After follow-up inspections confirmed\ncontinued violations, the County issued two administrative\ncitations assessing $2,000 fines for each violation. The\nCounty identified additional violations but did not issue\nadministrative citations in those instances. Diamond Sands\npaid one citation and disputed the other, which remains\noutstanding.\n B.\n Diamond Sands filed suit in the United States District\nCourt for the District of Nevada, asserting facial and as-\napplied challenges to Clark County’s ordinances under the\nEighth Amendment’s Excessive Fines Clause. Diamond\nSands argued that the County’s enforcement scheme\nunconstitutionally penalizes property owners for short-term\nrental activity conducted by tenants and sought to enjoin\nClark County from enforcing its ordinance.\n Diamond Sands filed a motion for a preliminary\ninjunction, which the district court denied, holding that\nDiamond Sands had failed to demonstrate a likelihood of\nsuccess on the merits because the fines imposed were not\ngrossly disproportionate to the gravity of the violations.\nDiamond Sands timely appealed.\n\f6 DIAMOND SANDS APARTMENTS, LLC V. CLARK COUNTY NEVADA\n\n\n II.\n “We review the denial of a preliminary injunction for\nabuse of discretion, but we review de novo the underlying\nissues of law.” Hubbard v. City of San Diego, 139 F.4th 843,\n849 (9th Cir. 2025) (quotation marks omitted). A district\ncourt abuses its discretion if it bases its decision “on an\nerroneous legal standard or on clearly erroneous factual\nfindings.” Cal. Chamber of Com. v. Council for Educ. &\nRsch. on Toxics, 29 F.4th 468, 475 (9th Cir. 2022) (quotation\nmarks omitted).\n III.\n A.\n “A preliminary injunction is an extraordinary remedy\nthat is never awarded as of right.” Winter v. Nat. Res. Def.\nCouncil, Inc., 555 U.S. 7, 24 (2008). A party seeking relief\nmust demonstrate that it is likely to succeed on the merits,\nthat it is likely to suffer irreparable harm absent preliminary\nrelief, that the balance of equities tips in its favor, and that\nan injunction is in the public interest. Id. at 20.\n We apply a sliding-scale approach to those factors, under\nwhich a plaintiff may receive a preliminary injunction by\nshowing “serious questions going to the merits” “so long as\nthe balance of hardships . . . ‘tips sharply toward’ the\nmovant.” All. for the Wild Rockies v. Cottrell, 632 F.3d\n1127, 1132 (9th Cir. 2011). However, “if a movant fails to\nmeet the threshold inquiry of likelihood of success on the\nmerits (or serious questions going to them), a court may\ndecide to deny a preliminary injunction without considering\nthe other factors.” Bennett v. Isagenix Int’l LLC, 118 F.4th\n1120, 1126 (9th Cir. 2024). We hold that the district court\ndid not err by denying Diamond Sands’ motion, because\n\f DIAMOND SANDS APARTMENTS, LLC V. CLARK COUNTY NEVADA 7\n\n\nDiamond Sands failed to show serious questions going to the\nconstitutionality of Clark County’s ordinances under the\nEighth Amendment.\n The Eighth Amendment provides that “[e]xcessive bail\nshall not be required, nor excessive fines imposed.” U.S.\nConst. amend. VIII. In determining whether a punitive fine\nis excessive, we do not require “strict proportionality”\nbetween the underlying offense and the fine imposed. 1\nUnited States v. Bajakajian, 524 U.S. 321, 336 (1998).\nInstead, our guiding question is whether the fine is “grossly\ndisproportional to the gravity of the [] offense[.]” Id. at 337.\nFour factors inform our analysis of gross disproportionality:\n“(1) the nature and extent of the underlying offense;\n(2) whether the underlying offense related to other illegal\nactivities; (3) whether other penalties may be imposed for\nthe offense; and (4) the extent of the harm caused by the\noffense.” Pimentel v. City of Los Angeles, 974 F.3d 917, 921\n(9th Cir. 2020) (“Pimentel I”). Diamond Sands argues that\nthe district court erred in holding that the first, third, and\nfourth factors cut in favor of the fines’ proportionality. Each\nargument is unavailing.\n B.\n The first factor “typically look[s] to the violator’s\nculpability.” Pimentel I, 974 F.3d at 922. Diamond Sands\nargues that it was not the party causing the short-term rental\nviolations, and that it therefore bears no meaningful\nculpability. The district court correctly rejected that\n\n1\n Only punitive fines—those that “constitute[] punishment for an\noffense”—are subject to the Eighth Amendment’s restrictions. United\nStates v. Mackby, 261 F.3d 821, 829 (9th Cir. 2001). Clark County does\nnot dispute that its ordinance is at least partly punitive and therefore falls\nwithin the scope of the Excessive Fines Clause.\n\f8 DIAMOND SANDS APARTMENTS, LLC V. CLARK COUNTY NEVADA\n\n\npremise. Property owners may bear a non-trivial degree of\nculpability for the misuse of their property by others. See\nTowers v. City of Chicago, 173 F.3d 619, 625 (7th Cir. 1999)\n(holding vehicle owners culpable for violations of a city\nordinance where the owner “does not ensure that others with\naccess to the vehicle do not place illegal items in it”). Even\n“benign actions may still result in some non-minimal degree\nof culpability.” Pimentel I, 974 F.3d at 923; see also id.\n(“The Seventh Circuit’s decision in Towers v. City of\nChicago is instructive.”).\n Here, the district court correctly found that Diamond\nSands’ actions were not entirely benign. Contrary to\nDiamond Sands’ representations that it was unaware of and\nnot responsible for the short-term rental violations, Clark\nCounty provided Diamond Sands with notices of abatement\ninforming Diamond Sands of the violations prior to the\nimposition of fines. At a minimum, because Diamond Sands\nhad knowledge of the improper short-term rentals and failed\nto eliminate the violations, we conclude that the district court\ndid not err in finding that Diamond Sands bore some\nculpability for the short-term rental ordinance violations.\n C.\n Diamond Sands next argues that the third factor—\nalternative penalties—weighs in its favor because Clark\nCounty could have created “alternative requirements and\npenalties” on property owners or could have targeted the\ntenants rather than imposing fines on the owners. But the\nthird factor asks whether the relevant legislature has\nauthorized other penalties, not whether the legislature could\nhave theoretically pursued an alternative enforcement\nregime.\n\f DIAMOND SANDS APARTMENTS, LLC V. CLARK COUNTY NEVADA 9\n\n\n Diamond Sands fails to recognize that Clark County’s\nordinance does contemplate alternative penalties: Clark\nCounty may issue misdemeanor citations, suspend or revoke\nshort-term rental licenses, or audit a violator’s financial\nrecords. Clark Cnty. Code § 7.100.230(f). Authorization of\nthose alternative penalties demonstrates that the gravity of a\nviolation of Clark County’s short-term rental ordinances is\nmore than minimal. See Bajakajian, 524 U.S. at 339 n.14\n(1998) (holding that potential criminal liability\ndemonstrated that violations of a statutory reporting\nrequirement were not “trivial”). Ultimately, Clark County\nchose to impose fines, and it chose to impose a fine on the\nlow end of the authorized range. Clark Cnty. Code\n§ 7.100.230(d)(1)(I) (authorizing up to a $10,000 fine per\nviolation). Accordingly, we conclude that the district court\ndid not err in holding that this factor weighed in favor of\nproportionality.\n D.\n Finally, the fourth factor looks to the “extent of the harm\ncaused by the violation,” including both monetary and non-\nmonetary harm. Pimentel I, 974 F.3d at 923-924. The\ndistrict court properly concluded that the County suffers\ncognizable harm from unlicensed short-term rentals by\nproperty owners like Diamond Sands. Diamond Sands\nargues that the district court erred by not requiring Clark\nCounty to provide evidence of the extent of the harm.\nSpecifically, Diamond Sands argues that our decision in\nPimentel v. City of Los Angeles, 115 F.4th 1062 (9th Cir.\n2024) (“Pimentel II”), requires that when governmental\nentities seek to justify a fine under a broad interest in\ndeterrence, they must provide some specific evidence—such\nas a declaration saying that a city bore more enforcement\ncosts or had to pay overtime for police—to show that a fine\n\f10 DIAMOND SANDS APARTMENTS, LLC V. CLARK COUNTY NEVADA\n\n\nis proportional to the alleged harm. Diamond Sands is\nincorrect.\n In Pimentel I, we held that Los Angeles’s $63 fine for\nparking violations was not grossly disproportionate. 974\nF.3d at 925. In doing so, we did not require empirical proof\nof harm to the city, explaining that courts grant “substantial\ndeference to the broad authority” of legislatures to set fines.\nId. at 924 (quoting Bajakajian, 524 U.S. at 336). We\nexpressly rejected the notion that municipalities must\nproduce specific evidence to justify penalties and\nemphasized that strict proportionality is not required under\nthe Excessive Fines Clause. Id.\n Pimentel II did not retreat from that principle. In that\ncase, we analyzed a separate fine—Los Angeles’s $63 late\npayment fee, imposed for failure to pay the underlying $63\nparking fine within 21 days—and reversed the district\ncourt’s grant of summary judgment in favor of Los Angeles.\n115 F.4th at 1068-69. We held that we could not “determine\n‘gross disproportionality’ as a matter of law because the City\noffered no evidence to justify its $63 late fee.” Id. at 1069.\nAlthough we recognized that “the [C]ity’s interest in\ndeterring nonpayment is legitimate,” we noted that the\nplaintiffs had entered unrebutted testimony from\ngovernment officials that the fine in question was “an\narbitrary figure” that had been established solely for\nrevenue-generating purposes, id. at 1069-70, and held that\n“the City’s interest alone does not validate any fine amount\nthat the City might arbitrarily impose,” id. at 1069. Our\nreasoning turned on the fact that the City had failed to\nprovide any “evidence that the penalty amount was actually\ntethered to the nature and extent of the harm caused by\nnonpayment.” Id. at 1072 (emphasis omitted). We observed\nthat if the City had entered “witness [testimony], a\n\f DIAMOND SANDS APARTMENTS, LLC V. CLARK COUNTY NEVADA 11\n\n\ndeclaration from a City official, or even a single piece of\npaper shedding light on the City’s basis for the $63 late fee\namount[,] the City would have likely prevailed. But the City\nprovided zilch.” Id. at 1071.\n Diamond Sands argues that because Clark County\nsimilarly provided no evidence, the County cannot prevail.\nBut Diamond Sands’ reliance on Pimentel II is misplaced.\nFirst, in Pimentel II, we “stress[ed] that our holding [wa]s a\nnarrow one,” id. at 1074, and that “[s]o long as a government\nprovides an unrebutted commonsense explanation or\nsome—even relatively weak—evidence to justify its fine, it\nwill likely prevail against an Excessive Fines Clause\nchallenge,” id. at 1069. The problem there was that, even at\nthe summary judgment stage, the City had offered no\nexplanation whatsoever for why nonpayment warranted a\ndoubling of the initial fine. Second, Pimentel II dealt with a\ndistinct kind of fine—one aimed at addressing an\nadministrative problem, the late payment of a related fine—\nwhere the harms from a violation would be felt by the\ngovernment itself rather than its citizens. In such a context,\nit makes more sense to require documentary evidence of\nharm to the government itself. But that is not the type of fine\nat issue here.\n Clark County’s ordinances are aimed at deterring harm\nto County residents in general, not just to the County\ngovernment itself. In its ordinance, Clark County expressly\narticulated that unlicensed short-term rentals negatively\nimpact the availability of affordable housing for county\nresidents and increase public nuisances in the community\nfrom loud parties and the like. Clark Cnty. Code\n§ 7.100.010. The County also explained that short-term\nrentals interfere with its ability to collect transient lodging\ntaxes. Id. The impact of those harms falls not only on the\n\f12 DIAMOND SANDS APARTMENTS, LLC V. CLARK COUNTY NEVADA\n\n\nfunctions of the County government but also on the\ncommunity directly, as evidenced from the numerous\ncomplaints from residents regarding disruptive parties at\nDiamond Sands. See, e.g., Thomas v. Cnty. of Humboldt,\n124 F.4th 1179, 1194 (9th Cir. 2024) (holding that when\nviolations did not impact the community, “caus[ing] no harm\nbeyond a technical lack of compliance,” this factor weighed\nagainst proportionality), cert. denied 2025 WL 2906470\n(U.S. Oct. 14, 2025); Pimentel I, 974 F.3d at 920\n(recognizing that the relevant fine was aimed at\n“alleviat[ing] traffic” for the “Los Angelenos [who] sigh and\ndespair when mired in traffic jams”); Towers, 173 F.3d at\n625 (noting that the fine at issue aimed to deter “the spread\nof drugs and the use of firearms,” which threatened public\nsafety in general). Clark County’s legislative findings\nsupply a rational basis for the fines imposed.\n Diamond Sands does not dispute that short-term rental\nviolations negatively impact the County or present evidence\nto rebut the proportionality conclusion. Under these\ncircumstances, and “[w]ithout material evidence provided\nby [Diamond Sands] to the contrary,” the Eighth\nAmendment does not require Clark County to “commission\nquantitative analysis” to justify its fine penalty schedule.\nPimentel I, 974 F.3d at 924. Thus, when compared to the\nharms Clark County identified, the imposed fines of $4,000\nagainst Diamond Sands, weigh against a finding of gross\ndisproportionality. See id. We conclude that the district\ncourt did not err in deciding that this factor weighed in favor\nof finding that the County’s fines are proportional. As a\nresult, on this record, we conclude that Diamond Sands’ as-\napplied challenge fails to raise serious questions going to the\nconstitutionality of the fines Clark County imposed.\n\f DIAMOND SANDS APARTMENTS, LLC V. CLARK COUNTY NEVADA 13\n\n\n E.\n We conclude that Diamond Sands has not raised serious\nquestions going to the facial constitutionality of Clark\nCounty’s ordinances under the Eighth Amendment’s\nExcessive Fines Clause. Diamond Sands argues that\nbecause the County could theoretically impose a $20,000\nfine on a property owner who had no prior knowledge of any\nshort-term rentals, the ordinance must be deemed facially\nunconstitutional. But that argument turns the facial inquiry\non its head. Rather than showing that the ordinance could\npotentially be enforced unconstitutionally in one\nhypothetical application, Diamond Sands must demonstrate\nthat it is “unconstitutional in every conceivable application.”\nWolford v. Lopez, 116 F.4th 959, 984 (9th Cir. 2024)\n(emphasis added) (quotation marks omitted). Because\nDiamond Sands cannot rely on “a worst-case analysis that\nmay never occur” to demonstrate facial unconstitutionality,\nOhio v. Akron Ctr. for Reprod. Health, 497 U.S. 502, 514\n(1990), its facial challenge fails.\n IV.\n The record before us demonstrates that the district court\ndid not abuse its discretion in concluding that Diamond\nSands failed to show serious questions that the fines at issue\nare grossly disproportionate or that Clark County’s\nordinance is facially unconstitutional. For the foregoing\nreasons, the district court’s denial of Diamond Sands’\nmotion for a preliminary injunction is AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11242006/", "author_raw": "Opinion by Judge Schreier"}]}	MARY M SCHROEDER	MICHELLE T FRIEDLAND	KAREN E SCHREIER	1		{}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10775420/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,769,646	Montgomery v. Cruz	2026-01-06	23-1315	U.S. Court of Appeals for the Tenth Circuit	{"judges": "Before BACHARACH, BALDOCK, and CARSON, Circuit Judges.", "parties": "", "opinions": [{"type": "010combined", "text": "Appellate Case: 23-1315 Document: 75-1 Date Filed: 01/06/2026 Page: 1\n FILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS January 6, 2026\n Christopher M. Wolpert\n FOR THE TENTH CIRCUIT Clerk of Court\n ____________________________________________\n\nWILLIAM MONTGOMERY,\n\n Plaintiff - Appellee,\n\nv. No. 23-1315\n\nARMANDO CRUZ,\n\n Defendant - Appellant.\n ___________________________________________\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF COLORADO\n (D.C. No. 20-CV-003189-PAB-MEH)\n ___________________________________________\n\nMadison L. Smith, Assistant City Attorney (Joshua R. Woolf, Assistant\nCity Attorney, with her on the briefs), Denver City Attorney’s Office,\nDenver, Colorado, for Defendant-Appellant.\n\nErin M. Gust, Davis Graham & Stubbs LLP (Theresa Wardon Benz, with\nher on the briefs), Denver, Colorado, for Plaintiff-Appellee.\n ___________________________________________\n\nBefore BACHARACH, BALDOCK, and CARSON, Circuit Judges.\n ___________________________________________\n\nBACHARACH, Circuit Judge.\n ___________________________________________\n\n This appeal grew out of a police officer’s search of a suspect’s\n\npockets and wallet. The search triggers two overarching issues.\n\f Appellate Case: 23-1315 Document: 75-1 Date Filed: 01/06/2026 Page: 2\n\n\n\n For the pockets, we consider whether the officer could justify the\n\nsearch based on probable cause to make an arrest. If a suspect is arrested,\n\nthe officer can ordinarily conduct a search incident to the arrest. United\n\nStates v. Romero, 935 F.3d 1124, 1128 (10th Cir. 2019). But what if the\n\nsuspect is never arrested? Absent an actual arrest, the officer can’t justify\n\na search based on the right to make an arrest. 1\n\n For the wallet, we consider what happens when a suspect expresses\n\nconsent after an illegal search. In our view, an illegal search doesn’t\n\nbecome legal just because a suspect later says that he would have provided\n\nthe information if the officer had just asked.\n\n1. Officer Cruz conducts a search without making an arrest.\n\n These issues arise from Mr. William Montgomery’s shopping trip at a\n\nWalmart store. As he left, he was stopped and asked for his receipt. He\n\ndeclined, and a nearby police officer (Officer Armando Cruz) again asked\n\nfor the receipt. Mr. Montgomery again declined.\n\n Officer Cruz suspected shoplifting and said that he was going to get\n\nthe person’s “name” and “information.” Appellant’s App’x at 191–92 ¶¶ 7–\n\n11. Mr. Montgomery put his bags on the floor, but was told to raise his\n\n\n\n\n1\n Granted, a search may be permissible for other reasons, such as\nconsent or exigent circumstances. See United States v. Smith, 797 F.2d\n836, 840 (10th Cir. 1986).\n 2\n\f Appellate Case: 23-1315 Document: 75-1 Date Filed: 01/06/2026 Page: 3\n\n\n\nhands. Officer Cruz then handcuffed Mr. Montgomery and started to pat\n\nhim down.\n\n But before Officer Cruz patted the jacket, he saw a bulge and asked\n\nwhat it was. Mr. Montgomery responded that he didn’t know. Officer Cruz\n\nthen reached into Mr. Montgomery’s pockets, removing a prescription\n\nbottle and a wallet and pulling the driver’s license out of the wallet.\n\nMr. Montgomery responded: “yeah, like I said, I tried to give [the ID] to\n\nyou.”\n\n Following the search, Mr. Montgomery was detained in a police\n\nvehicle while Walmart employees investigated. Their investigation showed\n\nthat Mr. Montgomery had paid for the items, and he was released.\n\n2. Officer Cruz urges qualified immunity.\n\n Mr. Montgomery sued, claiming a violation of the Fourth Amendment\n\nwhen Officer Cruz searched the pockets and wallet. Officer Cruz moved for\n\nsummary judgment based on qualified immunity. The district court denied\n\nthe motion for summary judgment, and Officer Cruz appeals.\n\n On appeal, Officer Cruz urges qualified immunity, which immunizes\n\npublic officials from suit when the plaintiff fails to show the violation of a\n\nclearly established constitutional right. See Cummings v. Dean, 913 F.3d\n\n1227, 1239 (10th Cir. 2019). In invoking qualified immunity, Officer Cruz\n\ndenies a constitutional violation and argues alternatively that a\n\nconstitutional violation wouldn’t have been clearly established.\n\n 3\n\f Appellate Case: 23-1315 Document: 75-1 Date Filed: 01/06/2026 Page: 4\n\n\n\n3. We apply the standard for summary judgment to the district\n court’s factual conclusions.\n\n In this appeal, we conduct de novo review, applying the same\n\nstandard that governed in district court. Avant v. Doke, 104 F.4th 203, 207\n\n(10th Cir. 2024). Because Officer Cruz asserts a defense of qualified\n\nimmunity, Mr. Montgomery bears “a heavy two-part burden.” Thomas v.\n\nKaven, 765 F.3d 1183, 1194 (10th Cir. 2014) (quoting Archuleta v.\n\nWagner, 523 F.3d 1278, 1283 (10th Cir. 2008)). This burden requires\n\nMr. Montgomery to show that Officer Cruz violated a clearly established\n\nright. Thomas, 765 F.3d at 1194. In determining whether a constitutional\n\nviolation is clearly established, we are bound by the district court’s factual\n\nconclusions. Lewis v. Tripp, 604 F.3d 1221, 1225 (10th Cir. 2010). 2 We\n\nthus consider whether the district court’s factual conclusions could\n\ndemonstrate a constitutional violation when Officer Cruz reached into\n\nMr. Montgomery’s pockets.\n\n4. A jury could reasonably infer a clearly established violation of\n the Constitution when Officer Cruz searched Mr. Montgomery’s\n pockets.\n\n The resulting issue is whether the Fourth Amendment prohibited\n\nOfficer Cruz from reaching into the pockets without patting them.\n\n\n2\n We can disturb these conclusions only if they are “blatantly\ncontradicted” by the record. Lewis, 604 F.3d at 1226 (quoting Scott v.\nHarris, 550 U.S. 372, 380 (2007)). But Officer Cruz doesn’t argue that the\nrecord blatantly contradicts the district court’s factual conclusions.\n\n 4\n\f Appellate Case: 23-1315 Document: 75-1 Date Filed: 01/06/2026 Page: 5\n\n\n\n A police officer can ordinarily pat a suspect’s pocket during an\n\ninvestigative stop. Terry v. Ohio, 392 U.S. 1, 29 (1968). If something feels\n\nlike a weapon, the officer can reach into the pocket and retrieve the object.\n\nMinnesota v. Dickerson, 508 U.S. 366, 375–77 (1993). But Officer Cruz\n\ndidn’t pat any of the pockets. He instead reached in and retrieved\n\nMr. Montgomery’s belongings.\n\n Other circumstances may allow an officer to conduct a search when\n\nstopping a person to investigate or to make an arrest. But these\n\ncircumstances don’t exist here.\n\n a. Officer Cruz couldn’t search the pockets in order to conduct\n an investigation.\n\n Upon reasonable suspicion, Officer Cruz could stop Mr. Montgomery\n\nto investigate whether he had shoplifted. Poolaw v. Marcantel, 565 F.3d\n\n721, 736 (10th Cir. 2009). And for self-protection, Officer Cruz could pat\n\nMr. Montgomery’s pockets to see if he had a weapon. United States v.\n\nGarcia, 459 F.3d 1059, 1063 (10th Cir. 2006). If Officer Cruz felt an\n\nobject and reasonably believed that it could be a weapon, he could reach\n\ninto the pockets and retrieve the weapon. Minnesota v. Dickerson, 508 U.S.\n\n366, 375–77 (1993).\n\n The district court concluded that a factual dispute existed on whether\n\nOfficer Cruz had reached into the pockets without patting them. If the jury\n\n\n\n\n 5\n\f Appellate Case: 23-1315 Document: 75-1 Date Filed: 01/06/2026 Page: 6\n\n\n\nwere to resolve the dispute in Mr. Montgomery’s favor, the search would\n\nhave violated the Fourth Amendment.\n\n Defense counsel disagreed in oral argument, arguing that Officer\n\nCruz might have attributed the bulge to a gun. Until oral argument,\n\nhowever, defense counsel had never suggested that Officer Cruz thought\n\nthe bulge might have come from a gun. Oral argument was too late for this\n\nargument. Cox v. Wilson, 971 F.3d 1159, 1174 (10th Cir. 2020).\n\n Moreover, the summary-judgment record contains no evidence that\n\nOfficer Cruz attributed the bulge to a gun. If Officer Cruz had reasonably\n\nsuspected the presence of a gun, he could have patted the pocket.\n\nPennsylvania v. Mimms, 434 U.S. 106, 111–12 (1977). But the district\n\ncourt recognized a factual dispute over whether Officer Cruz had reached\n\ninto the jacket pocket without patting it. Without an initial pat-down,\n\nOfficer Cruz would have violated the Fourth Amendment by reaching into\n\nthe pocket. See United States v. Aquino, 674 F.3d 918, 921, 925–26 (8th\n\nCir. 2012) (concluding that when a suspect had an unnatural bulge near his\n\ncalf, the Fourth Amendment prohibited a search before confirming the\n\npresence of a weapon or contraband through a pat-down); United States v.\n\nBrown, 996 F.3d 998, 1008–12 (9th Cir. 2021) (concluding that when a\n\nsuspect had a noticeable bulge at his waistband, the Fourth Amendment\n\nprohibited the officer from reaching into the suspect’s pocket without\n\n\n\n 6\n\f Appellate Case: 23-1315 Document: 75-1 Date Filed: 01/06/2026 Page: 7\n\n\n\npatting it first). So Officer Cruz’s reach into the pocket would have\n\nviolated the Fourth Amendment.\n\n b. The search didn’t take place incident to an arrest.\n\n Nor could Officer Cruz justify the search based on probable cause to\n\nmake an arrest. 3\n\n If Officer Cruz had made an arrest, his safety could have been\n\njeopardized from the combination of stress and close contact with Mr.\n\nMontgomery. Knowles v. Iowa, 525 U.S. 113, 117 (1998). And if\n\nMr. Montgomery hadn’t been arrested, he presumably could have left and\n\nhidden or destroyed items shoplifted from the Walmart. See id. at 116\n\n(noting that a search incident to an arrest can be justified by “the need to\n\npreserve evidence for later use at trial”). Given the safety risk and possible\n\ndestruction of evidence, Officer Cruz could have searched Mr.\n\nMontgomery’s pockets incident to an arrest. United States v. Braxton, 61\n\nF.4th 830, 833 (10th Cir. 2023).\n\n But Officer Cruz admits that he hadn’t arrested Mr. Montgomery\n\nbefore conducting the search. See Appellant’s Opening Br. at 14 n.4\n\n(“Officer Cruz is not currently challenging the Court’s determination that\n\nMr. Montgomery was not under arrest at the time of the search . . . .”).\n\n\n3\n Officer Cruz argues that Mr. Montgomery failed to address probable\ncause for a search. But the constitutionality of Officer Cruz’s conduct does\nnot turn on probable cause. So Mr. Montgomery had no need to address the\nexistence of probable cause.\n 7\n\f Appellate Case: 23-1315 Document: 75-1 Date Filed: 01/06/2026 Page: 8\n\n\n\nOfficer Cruz downplays this admission, arguing that officers can conduct a\n\nsearch right before an arrest. See Rawlings v. Kentucky, 448 U.S. 98, 110–\n\n11 (1980); United States v. Anchondo, 156 F.3d 1043, 1045–46 (10th Cir.\n\n1998). But in oral argument, Officer Cruz admits for purposes of this\n\nappeal that he never arrested Mr. Montgomery.\n\n Officer Cruz instead waited for Walmart to determine whether\n\nMr. Montgomery had paid for the items. 4 When Walmart determined that\n\nMr. Montgomery had paid for the items, Officer Cruz declined to make an\n\narrest. Without an arrest, our precedent prevented Officer Cruz from\n\nsearching the suspect’s pockets absent an arrest even if probable cause\n\nexisted. See United States v. Ward, 682 F.2d 876, 880 (10th Cir. 1982)\n\n(concluding that even though probable cause existed to believe that the\n\ndefendant had committed a federal offense, “the seizure of the contents of\n\nhis pockets was not constitutionally permissible” “inasmuch as [he] was\n\nnot arrested”); United States v. Robinson, 414 U.S. 218, 235 (1973)\n\n(stating that “[i]t is the fact of the lawful arrest which establishes the\n\nauthority to search”); United States v. Sanchez, 555 F.3d 910, 921 (10th\n\nCir. 2009) (“To be sure, it appears that there can be no search incident to\n\narrest unless the suspect is at some point formally placed under arrest.”);\n\n\n4\n Officer Cruz also concedes in his reply brief that “an arrest did not\nfollow,” explaining that he decided to wait for Walmart to review its\nsurveillance tapes. Appellant’s Reply Br. at 2.\n\n 8\n\f Appellate Case: 23-1315 Document: 75-1 Date Filed: 01/06/2026 Page: 9\n\n\n\ncf. United States v. Anchondo, 156 F.3d 1043, 1045 (10th Cir. 1998) (“A\n\nwarrantless search preceding an arrest is a legitimate ‘search incident to\n\narrest’ as long as . . . the arrest followed shortly after the search.”). 5 So\n\nunder our precedent, 6 the absence of an arrest prevented Officer Cruz from\n\nconducting a search as incident to an arrest.\n\n c. The constitutional violation would have been clearly\n established.\n\n Because the district court’s universe of facts would demonstrate a\n\nconstitutional violation, Officer Cruz could obtain qualified immunity only\n\nif the constitutional violation had not been clearly established. See Part 2,\n\nabove. The clarity of a violation involves a pure matter of law. Cox v.\n\nGlanz, 800 F.3d 1231, 1246 n.7 (10th Cir. 2015). In determining this\n\nmatter of law, we focus on Officer Cruz’s appellate arguments. Santucci v.\n\nCommandant, 66 F.4th 844, 851 n.9 (10th Cir. 2023).\n\n In his opening brief, Officer Cruz argues that (1) probable cause\n\nwould have been at least arguable and (2) the case law didn’t clearly\n\nprohibit a search when the suspect could have been arrested.\n\n\n5\n In Sanchez and Anchondo, the defendants were arrested. Sanchez, 555\nF.3d at 922 (“The search of Mr. Sanchez was promptly after his arrest\n. . . .”); Anchondo, 156 F.3d at 1045–46 (stating that “the arrest occurred\nimmediately after the drugs were found on the defendant’s body”).\n6\n Officer Cruz urges us to modify our precedent to allow a search here.\nBut one panel can’t overrule another in the absence of en banc\nconsideration or a superseding opinion of the Supreme Court. In re Smith,\n10 F.3d 723, 724 (10th Cir. 1993) (per curiam).\n 9\n\f Appellate Case: 23-1315 Document: 75-1 Date Filed: 01/06/2026 Page: 10\n\n\n\n The first argument is immaterial because the constitutionality of the\n\nsearch doesn’t turn on probable cause. See note 3, above.\n\n And the second argument is impossible to square with controlling\n\nprecedents. These precedents establish two guiding principles:\n\n 1. When an officer stops someone to investigate, the officer must\n conduct a pat-down before reaching into the suspect’s pockets.\n Sibron v. New York, 392 U.S. 40, 65 (1968); United States v.\n Santillanes, 848 F.2d 1103, 1109 (10th Cir. 1988).\n\n 2. When an officer makes an arrest, the officer can search a\n person in the course of making the arrest. United States v.\n Knapp, 917 F.3d 1161, 1165 (10th Cir. 2019). But the\n lawfulness of the search is conditioned on the making of an\n arrest. See United States v. Sanchez, 555 F.3d 910, 921 (10th\n Cir. 2009) (“To be sure, it appears that there can be no search\n incident to arrest unless the suspect is at some point formally\n placed under arrest.”); see also United States v. Anchondo, 156\n F.3d 1043, 1045 (10th Cir. 1998) (“A warrantless search\n preceding an arrest is a legitimate ‘search incident to arrest’ as\n long as . . . the arrest followed shortly after the search.”).\n\n In applying these principles, we are guided by Officer Cruz’s\n\nconcessions and the district court’s factual conclusions. Officer Cruz\n\nconcedes, for purposes of this appeal, that Mr. Montgomery was never\n\narrested. See p. 8 & note 4, above. And the district court concluded that a\n\nfactual dispute existed on whether Officer Cruz had reached into the\n\npockets without patting them.\n\n Based on the absence of a pat-down or an arrest, all officers should\n\nhave understood that the Fourth Amendment would have prohibited a\n\nsearch of Mr. Montgomery’s pockets. Officer Cruz contends that this\n\n\n 10\n\f Appellate Case: 23-1315 Document: 75-1 Date Filed: 01/06/2026 Page: 11\n\n\n\nprohibition would be “absurd” by requiring him to make an arrest “after\n\ninvestigating and discovering exculpatory evidence . . . .” Appellant’s\n\nReply Br. at 7.\n\n Of course, Officer Cruz didn’t need to make an arrest. But he\n\ncouldn’t justify a search as “incident to an arrest” that never took place.\n\nNor could Officer Cruz reach into Mr. Montgomery’s pockets without\n\npatting them. As a result, Officer Cruz’s search of the pockets would have\n\nconstituted a clearly established violation of the Fourth Amendment.\n\n5. Officer Cruz couldn’t search the wallet even if he could otherwise\n have reached into the pockets.\n\n Inside Mr. Montgomery’s pants pocket was a wallet. So when Officer\n\nCruz reached inside this pocket, he pulled out the wallet and examined the\n\ncontents in order to find a driver’s license. From this examination of the\n\ncontents, a jury could reasonably find a violation of the Fourth\n\nAmendment.\n\n We’ve earlier concluded that Officer Cruz couldn’t reach inside the\n\npockets, but that is how he found the wallet. So the Fourth Amendment\n\nprohibited not only the reach into Mr. Montgomery’s pockets but also the\n\nsearch of his wallet.\n\n Defending his search of Mr. Montgomery’s wallet, Officer Cruz\n\npresents three arguments:\n\n 1. The wallet could have contained a small knife.\n\n\n 11\n\f Appellate Case: 23-1315 Document: 75-1 Date Filed: 01/06/2026 Page: 12\n\n\n\n 2. Officer Cruz had a right to get Mr. Montgomery’s driver’s\n license.\n\n 3. Mr. Montgomery consented to Officer Cruz’s retrieval of his\n driver’s license.\n\n The first argument stretches beyond the district court’s conclusions,\n\nfor the court didn’t suggest that the wallet could have contained a small\n\nknife. In fact, Officer Cruz admitted that he had retrieved the driver’s\n\nlicense only after determining that Mr. Montgomery hadn’t possessed a\n\nweapon.\n\n Officer Cruz waived the second argument by waiting until his reply\n\nbrief to argue that he was entitled to search for the driver’s license. He\n\nshould have made this argument when he moved for summary judgment.\n\nSee Postnet Int’l Franchise Corp. v. Wu, 521 F. Supp. 3d 1087, 1095 n.2\n\n(D. Colo. 2021) (“A party generally forfeits ‘or waives issues and\n\narguments raised for the first time in a reply brief.’” (quoting Gutierrez v.\n\nCobos, 841 F.3d 895, 902 (10th Cir. 2016))). After all, Mr. Montgomery\n\nhad no chance to respond. Beaird v. Seagate Tech., Inc., 145 F.3d 1159,\n\n1164–65 (10th Cir. 1998).\n\n Given the timing of the argument, the court had two choices: It could\n\ndisregard Officer Cruz’s new argument or give Mr. Montgomery a chance\n\nto respond. See id. The district court didn’t abuse its discretion by\n\ndeclining to address Officer Cruz’s new argument in light of\n\nMr. Montgomery’s inability to respond. See id.\n 12\n\f Appellate Case: 23-1315 Document: 75-1 Date Filed: 01/06/2026 Page: 13\n\n\n\n Finally, Officer Cruz argues that Mr. Montgomery consented to the\n\nretrieval of his driver’s license. Consent is a question of fact. United\n\nStates v. Abdenbi, 361 F.3d 1282, 1290 (10th Cir. 2004). And the district\n\ncourt concluded that a reasonable jury could find that Mr. Montgomery\n\nhadn’t consented to a search of his wallet before Officer Cruz pulled it\n\nfrom the pocket in his pants.\n\n Despite this conclusion, Officer Cruz argues that after he had\n\nsearched the wallet, Mr. Montgomery admitted consent by saying that he\n\nhad been willing to provide his driver’s license. This argument fails legally\n\nand factually.\n\n Legally, Mr. Montgomery’s consent after-the-fact couldn’t\n\n“transform the prior illegal search into a legal one.” United States v.\n\nCarson, 793 F.2d 1141, 1153 (10th Cir. 1986).\n\n Factually, a jury could reasonably find that Mr. Montgomery hadn’t\n\nconsented to a search of his wallet. To the contrary, Mr. Montgomery said\n\nonly that he had intended to provide his driver’s license at the start of the\n\nencounter. To do so, Mr. Montgomery presumably would have pulled the\n\ndriver’s license from his wallet rather than let the officer rummage through\n\nit. As a result, Officer Cruz couldn’t obtain summary judgment for a search\n\n\n\n\n 13\n\f Appellate Case: 23-1315 Document: 75-1 Date Filed: 01/06/2026 Page: 14\n\n\n\nof the wallet even if he were otherwise entitled to reach inside\n\nMr. Montgomery’s pockets. 7\n\n6. Conclusion\n\n The district court concluded that a factual dispute existed on whether\n\nOfficer Cruz had reached into Mr. Montgomery’s pockets before patting\n\nthem. If Officer Cruz had reached inside without conducting a pat-down,\n\nhe would have committed a clearly established violation of the Fourth\n\nAmendment. Officer Cruz compounded the potential violation by searching\n\nthe wallet after retrieving it from the pocket in Mr. Montgomery’s pants.\n\nAs a result, Officer Cruz is not entitled to qualified immunity and we\n\naffirm the denial of his motion for summary judgment.\n\n\n\n\n7\n As noted above, Officer Cruz could be sued only if the constitutional\nviolation had been clearly established. See Part 2, above. And Officer Cruz\ndenies that his search of the pockets would have violated a clearly\nestablished right. See Part 4(c), above. But Officer Cruz doesn’t make a\nsimilar argument about his search of Mr. Montgomery’s wallet.\n\n 14\n\f Appellate Case: 23-1315 Document: 75-1 Date Filed: 01/06/2026 Page: 15\n\n\n\nNo. 23-1315, Montgomery v. Cruz", "author": "BACHARACH, Circuit Judge."}, {"type": "concurrence", "author": "BALDOCK", "text": "BALDOCK, J., concurring in the judgment only.\n\n In this § 1983 suit, Plaintiff claims Defendant subjected him to a search of his person\n\nmore intrusive than a pat-down for weapons in violation of the Fourth Amendment. The\n\ndistrict court denied Defendant qualified immunity in the context of his summary judgment\n\nmotion and Defendant appealed. Two concessions, one by each party, frame this appeal.\n\nFirst, Plaintiff concedes that at the time of the search, Defendant had probable cause to\n\narrest him based on a reasonable belief that he had committed the crime of shoplifting.\n\nSecond, Defendant concedes that at no time during his encounter with Plaintiff did he arrest\n\nhim. Rather, Defendant merely detained Plaintiff while conducting an investigation that\n\nultimately exonerated him. 1\n\n Accordingly, our qualified immunity inquiry spawns two questions, namely (1)\n\nwhether a search of a suspect beyond a pat-down search for weapons runs afoul of the\n\n\n1\n Given Plaintiff’s erratic and uncooperative behavior at the time of the encounter coupled\nwith his refusal to produce a receipt or even acknowledge that he had paid for the items he\npossessed, Defendant likely had probable cause to believe Plaintiff had committed the\ncrime of shoplifting so in reality Plaintiff concedes nothing. Whether Defendant placed\nPlaintiff under arrest when he handcuffed him and put him in the back of his squad car for\na period, according to Plaintiff, approaching one hour, however, is another matter. Such\nquery, as I shall explain, should make no difference to the outcome of this case, but under\nthe current state of the law in the Tenth Circuit, makes all the difference. Yet Defendant,\nas the master of his defense, concedes Plaintiff was never arrested. I do not understand\nwhy. While the question of whether an investigative detention has evolved into an arrest\nalways turns on the facts of the case, “it has been clear for some time that the use of\nhandcuffs generally converts a detention into an arrest.” Manzanares v. Higdon, 575 F.3d\n1135, 1150 (10th Cir. 2009). Add to this Plaintiff’s placement in the back of Defendant’s\nsquad car for an hour and Defendant’s concession becomes all the more puzzling. See\nCortez v. McCauley, 478 F.3d 1108, 1115 (10th Cir. 2007) (recognizing an arrest is\ncharacterized “by the involuntary, ‘highly intrusive’ nature of the encounter”).\n\f Appellate Case: 23-1315 Document: 75-1 Date Filed: 01/06/2026 Page: 16\n\n\n\nFourth Amendment where probable cause to arrest a suspect exists but the suspect is never\n\narrested, and if so (or assuming it to be so), whether the unconstitutionality of such a search\n\nwas clearly established in the Tenth Circuit at the time of the search. Because the Court\n\nanswers both questions in the affirmative, Plaintiff prevails. As for the first inquiry, this\n\nCourt concludes the district court’s factual findings demonstrate a constitutional violation\n\ngiven that Defendant could not justify the search as one incident to arrest, an exception to\n\nthe Fourth Amendment’s warrant requirement, because Plaintiff was never arrested. In\n\nother words, the Court opines that probable cause to arrest alone is not enough to justify\n\nthe search of a suspect more intrusive than a “pat and frisk” based on safety concerns. As\n\nfor the second inquiry, the Court concludes any reasonable officer in the Tenth Circuit\n\nwould have understood the Fourth Amendment, absent an arrest, prohibited the search of\n\nPlaintiff notwithstanding the presence of probable cause to arrest. I reluctantly agree with\n\nthe Court’s conclusions but for different reasons.\n\n I.\n\n The Court cites two cases, United States v. Sanchez, 555 F.3d 910 (10th Cir. 2009)\n\nand United States v. Anchondo, 156 F.3d 1043 (10th Cir. 1998), for the “clearly established”\n\nproposition that where probable cause to arrest exists, the legality of a search more intrusive\n\nthan a pat-down for weapons depends entirely on an arrest, or as the Court puts it, “is\n\nconditioned on the making of an arrest.” Court’s Op. Part 4.c., at 9–10 (emphasis added).\n\nI respectfully suggest neither case stands for such a proposition. In Sanchez, officers had\n\nprobable cause to arrest defendant for obstruction of justice. Defendant was detained and\n\nfully searched but not formally arrested until one hour later. We held the search of\n\n 2\n\f Appellate Case: 23-1315 Document: 75-1 Date Filed: 01/06/2026 Page: 17\n\n\n\ndefendant’s person was justified as a search incident to arrest because “the arrest of\n\n[defendant] was initiated for purposes of the search-incident-to-arrest doctrine when the\n\nofficers apprehended him after his flight.” Sanchez, 555 F.3d at 922 (internal parenthesis\n\nomitted). In short, defendant in Sanchez was arrested before rather than after the search so\n\nthe search incident to arrest exception to the Fourth Amendment clearly applied.\n\n In Anchondo, officers had probable cause to arrest defendant for drug involvement.\n\nAn officer searched defendant’s person and uncovered a package of cocaine strapped to his\n\nbody. Unlike in Sanchez, officers arrested defendant after the search. Thus, like in our\n\ncase, in Anchondo a search based on probable cause occurred at a time when defendant\n\nwas not under arrest. Nonetheless, we held a warrantless search preceding an arrest\n\nconstituted a search incident to arrest because a legitimate basis for the arrest existed before\n\nthe search and the arrest followed shortly after the search. Anchondo, 156 F.3d at 1045\n\n(citing Rawlings v. Kentucky, 448 U.S. 98, 111 (1980) (“Where the formal arrest followed\n\nquickly on the heels of the challenged search of [defendant’s] person, we do not believe it\n\nparticularly important that the search preceded the arrest rather than vice versa.”)).\n\n As the Court points out, Sanchez certainly stated that “it appears there can be no\n\nsearch incident to an arrest unless the suspect is at some point formally placed under arrest.”\n\nCourt’s Op. Part 4.c., at 10 (citing Sanchez, 555 F.3d at 921). But to say an arrest must\n\noccur at some point before the search incident to arrest exception to the Fourth\n\nAmendment’s warrant requirement justifies a search is wholly unremarkable. Unlike here,\n\nin Sanchez and Anchondo we did not have to decide whether probable cause to arrest alone\n\nwas sufficient to justify a search more intrusive than a pat down because defendant in both\n\n 3\n\f Appellate Case: 23-1315 Document: 75-1 Date Filed: 01/06/2026 Page: 18\n\n\n\ncases was arrested. Because in those cases we did not have to decide whether the legality\n\nof a search more intrusive than a pat-down for weapons “is conditioned on the making of\n\nan arrest” where probable cause is present, a future panel of this Court, absent other\n\nauthority, remained free to decide no such condition exists. Id. at 10. As such, neither\n\nAnchondo nor Sanchez clearly establish the rule for which the Court cites them. Neither\n\ncase addressed the relevant question here which has nothing to do with a search incident to\n\nan arrest. Rather, the question presented (albeit inartfully framed and argued by the\n\ndefense) is whether the Fourth Amendment permits a search more intrusive than a pat-\n\ndown for weapons where probable cause to arrest the suspect is present but the suspect is\n\nnot arrested because further investigation exonerates him, i.e., when the search incident to\n\nan arrest doctrine does not apply.\n\n To say those cases stand for the proposition that probable cause to arrest is in itself\n\ninsufficient to justify a search more intrusive than a pat-down search is to say the\n\nreasonableness of a search based on probable cause to arrest depends entirely on the\n\noccurrence or non-occurrence of an event—an actual arrest—subsequent to the search.\n\nThis most assuredly is not how the Fourth Amendment works. Let me elucidate: If the\n\nfacts giving rise to probable cause to arrest, after further investigation, confirm the\n\nsearching officer’s suspicions and the suspect is subsequently arrested—the situation in\n\nAnchondo—the suspect may be charged with a crime. But if such facts fail to substantiate\n\nthe searching officer’s suspicions and the suspect is not arrested—the situation before us—\n\nthe suspect may sue the officer for violating his civil rights. This is farcical, rendering the\n\nFourth Amendment in these sort of cases a mere citadel of technicality. Law enforcement\n\n 4\n\f Appellate Case: 23-1315 Document: 75-1 Date Filed: 01/06/2026 Page: 19\n\n\n\nofficials in the Tenth Circuit beware! Where probable cause to arrest a suspect exists, make\n\nsure to arrest the suspect promptly before conducting any further investigation lest such\n\ninvestigation exonerate the suspect, in turn rendering you liable for a Fourth Amendment\n\nviolation.\n\n Indeed, two preeminent jurists have recognized the inanity of a rule that says where\n\nprobable cause to arrest is present, the legality of a search for anything other than weapons\n\n(based, of course, on safety or security concerns) depends on whether the suspect is in fact\n\narrested. In United States v. Gorman, 355 F.2d 151 (2d Cir. 1965), Judge Henry Friendly\n\ncommented that he “could not understand just what values would be served by a rule that\n\nwould force the police to impose a justifiable restraint [i.e., an arrest] on the person as a\n\ncondition to making a search which, if fruitless, might cause them to decide against it[.]”\n\nId. at 160. Justice Roger Traynor expressed a similar sentiment in People v. Simon, 290\n\nP.2d 531 (Cal. 1955):\n\n [I]f the officer is entitled to make an arrest on the basis of information\n available to him before he searches, and as an incident to that arrest is entitled\n to make a reasonable search of the person . . . there is nothing unreasonable\n in his conduct if he makes the search before instead of after the arrest. In\n fact, if the person searched is innocent and the search convinces the officer\n that his reasonable belief to the contrary is erroneous, it is to the advantage\n of the person searched not to be arrested. . . . In either case, the important\n considerations are whether the officer had reasonable cause [i.e., probable\n cause] before the search to make an arrest and whether the search . . . w[as]\n or w[as] not more extensive than would reasonably be justified as [one]\n incident to an arrest.\n\nId. at 533.\n\n\n\n\n 5\n\f Appellate Case: 23-1315 Document: 75-1 Date Filed: 01/06/2026 Page: 20\n\n\n\n II.\n\n In sum, neither Sanchez nor Anchondo say—and for good reason—that the search\n\nof a suspect beyond a pat-down search for weapons runs afoul of the Fourth Amendment\n\nwhere probable cause to arrest the suspect exists but the suspect is never arrested.\n\nFortunately for Plaintiff, however, my oath requires me to acknowledge the Tenth Circuit\n\nregrettably has rendered a decision, cited by the Court in Part 4.b. at page nine of its\n\nopinion, that may reasonably be read to say just that. In United States v. Ward, 682 F.2d\n\n876 (10th Cir. 1982), defendant was suspected of illegal sports bookmaking. Law\n\nenforcement arrived at defendant’s home to execute a search warrant authorizing the search\n\nof his residence. Upon arrival, an officer “patted [defendant] down for weapons” and asked\n\nif he was armed. Id. at 878. When defendant acknowledged he carried a pocket knife, the\n\nofficer told defendant to empty his pockets and place the contents on a table. In addition\n\nto a pocket knife, defendant produced, among other things, cash, several betting slips, and\n\nuncashed bad checks he had received from bettors. Although prior to the initial frisk, the\n\nofficer had probable cause to believe defendant was engaged in illegal bookmaking,\n\ndefendant, just as in our case, “was not arrested before, during, or after the search.” Id. at\n\n880. We held both “the initial frisk,” because the officer lacked a “reasonable suspicion\n\nthat [defendant] was armed and dangerous,” and the “resulting second search,” “inasmuch\n\nas [defendant] was not arrested,” were unconstitutional. Id. at 880–81.\n\n Although [the officer] had probable cause to believe that [defendant]\n was committing a federal offense by engaging in bookmaking without first\n acquiring a wagering stamp, the initial frisk of [defendant] was not supported\n by a reasonable suspicion that he was armed and dangerous. Accordingly,\n and inasmuch as [defendant] was not arrested, the seizure of the contents of\n\n 6\n\f Appellate Case: 23-1315 Document: 75-1 Date Filed: 01/06/2026 Page: 21\n\n\n\n his pockets, including the uncashed checks, betting slips, and $499 was not\n constitutionally permissible.\n\nId. at 880.\n\n While Ward does not expressly say so, I cannot help but acknowledge that the\n\nopinion effectively holds probable cause to arrest a suspect alone is not enough to justify\n\nthe search of a suspect absent arrest (not even a search for weapons where safety concerns\n\nare lacking—a rather rare occurrence). As such, I am left with no choice but to reluctantly\n\nconcur in the Court’s judgment that the Fourth Amendment law it today endorses was\n\nclearly established at the time of Defendant’s encounter with Plaintiff. Outnumbered two\n\nto one, no useful purpose would be served by indulging myself and arguing the rule this\n\nCourt validates today was not clearly established at the time of the subject search because\n\nWard did not explicitly endorse such a rule. What I hope may be useful, however, is a call\n\nfor the en banc Court to reexamine and overrule the current state of the law applicable here\n\nat the earliest opportunity. If, as Sir Edward Coke believed, “reason is the life of the law,”\n\nthis Court surely will do so sooner rather than later.\n\n In the meantime, law enforcement in and around the Aurora, Colorado area should\n\nbe aware that Plaintiff appears to welcome encounters with the police in the hope that any\n\nsuch encounter will produce fodder for a civil rights lawsuit. See Montgomery v.\n\nBrukbacher, No. 21-1073, 2021 WL 4074358 (10th Cir. 2021) (unsuccessful suit against a\n\npolice officer arising out of panhandling and alleging an unlawful seizure); Montgomery v.\n\nBliley, No. 21-1133, 2022 WL 1003176 (10th Cir. 2022) (unsuccessful suit against police\n\nofficers arising out of panhandling and alleging an unlawful seizure); Montgomery v.\n\n\n 7\n\f Appellate Case: 23-1315 Document: 75-1 Date Filed: 01/06/2026 Page: 22\n\n\n\nCalvano, No. 21-1134, 2022 WL 1132212 (10th Cir. 2022) (unsuccessful suit against a\n\npolice officer arising out of suspected shoplifting and alleging an unlawful seizure);\n\nMontgomery v. Anderson, No. 22-1306 (10th Cir. 2022) (unsuccessful suit against police\n\nofficers arising out of suspected shoplifting and alleging an unlawful seizure); Montgomery\n\nv. Gerdjikian, No. 22-1126, 2023 WL 1876325 (10th Cir. 2023) (unsuccessful suit against\n\npolice officers arising out of panhandling and alleging an unlawful seizure); Montgomery\n\nv. Lore, No. 23-1106, 2023 WL 8613523 (10th Cir. 2023) (affirming partial denial of\n\nmotion to dismiss in a suit against a police officer arising out of suspected shoplifting and\n\nalleging an unlawful search and seizure); Montgomery v. Cohn, No. 23-1101, 2024 WL\n\n1739290 (10th Cir. 2024) (unsuccessful suit against police officers arising out of suspected\n\nshoplifting and alleging an unlawful search and seizure). Law enforcement would be well\n\nadvised to heed Plaintiff’s litigious nature and proceed consistent with the current state of\n\nTenth Circuit law no matter how formalistic.\n\n I respectfully concur in the judgment only.\n\n\n\n\n 8"}]}	BACHARACH	BALDOCK	CARSON	1		{"BACHARACH": ", Circuit", "BALDOCK": ", Circuit", "CARSON": ", Circuit"}	2	0	1	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10769646/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,769,724	Kesters Merchandising Display International v. SurfaceQuest	2026-01-06	24-3112	U.S. Court of Appeals for the Tenth Circuit	{"judges": "Before MATHESON, KELLY, and BACHARACH, Circuit Judges.", "parties": "", "opinions": [{"author": "BACHARACH, Circuit Judge.", "type": "010combined", "text": "Appellate Case: 24-3112 Document: 50-1 Date Filed: 01/06/2026 Page: 1\n FILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS January 6, 2026\n\n Christopher M. Wolpert\n FOR THE TENTH CIRCUIT Clerk of Court\n __________________________________________\n\nKESTERS MERCHANDISING\nDISPLAY INTERNATIONAL, INC.,\n\n Plaintiff - Appellant,\n\nv. No. 24-3112\n\nSURFACEQUEST, INC.,\n\n Defendant - Appellee.\n ___________________________________________\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF KANSAS\n (D.C. No. 2:21-CV-02300-EFM)\n ______________________________________\n\nTeresa M. Young, Baker Sterchi Cowden & Rice, St. Louis, Missouri\n(James S. Kreamer and Megan R. Stumph-Turner, Baker Sterchi Cowden &\nRice, Kansas City, Missouri, with her on the briefs), for Appellant.\n\nBrian L. White (J. Philip Davidson, Amy M. Decker, and Ashley N. Jarmer\nwith him on the briefs), Hinkle Law Firm, Wichita, Kansas, for Appellee.\n ______________________________________________\n\nBefore MATHESON, KELLY, and BACHARACH, Circuit Judges.\n ______________________________________________\n\nBACHARACH, Circuit Judge.\n ______________________________________________\n\n This appeal involves the use of photographs to advertise. In the\n\nadvertisements, one manufacturer allegedly marketed its products with\n\f Appellate Case: 24-3112 Document: 50-1 Date Filed: 01/06/2026 Page: 2\n\n\n\nphotographs of a competing product. The alleged marketing efforts spurred\n\nclaims of false advertising under the Lanham Act. 1\n\n For these claims, the plaintiff must show that the defendant caused\n\nan injury, which may be presumed or actual. At issue here is whether the\n\nevidence would allow a reasonable fact-finder to infer an injury. We\n\nanswer no because injury isn’t presumed and the plaintiff has not presented\n\nevidence of an actual injury.\n\nI. SurfaceQuest markets its products with photographs of Kesters’\n products.\n\n This case involves competition between two manufacturers of\n\nmaterial for lightweight construction. One competitor (Kesters\n\nMerchandising International, Inc.) sells a product called MicroLite, which\n\nis a lightweight, seamless material used in architectural products. The\n\nother competitor (SurfaceQuest, Inc.) mainly sells architectural film that\n\ngoes on surfaces like MicroLite.\n\n In about 2014, Kesters and SurfaceQuest jointly marketed MicroLite\n\nsamples wrapped in SurfaceQuest film. To market the samples, Kesters\n\nsupplied SurfaceQuest with products, specification guides, and\n\nphotographs of Kesters’ products. SurfaceQuest then applied its film to the\n\nproducts.\n\n\n1\n Other claims involved unjust enrichment and unfair competition. But\nthese claims aren’t at issue here.\n\n 2\n\f Appellate Case: 24-3112 Document: 50-1 Date Filed: 01/06/2026 Page: 3\n\n\n\n Roughly two years later, SurfaceQuest decided to sell and market its\n\nown lightweight beam wrapped in SurfaceQuest film. These marketing\n\nefforts included advertisements using photographs of MicroLite.\n\nII. SurfaceQuest obtains summary judgment.\n\n In district court, Kesters sued for false advertising under the Lanham\n\nAct, 15 U.S.C. § 1125(a)(1)(B), claiming that SurfaceQuest had\n\n • used photographs of MicroLite,\n\n • published a video characterizing MicroLite as SurfaceQuest’s\n product,\n\n • published images from a grocery store renovation and\n misrepresented them as depicting SurfaceQuest products,\n\n • placed a SurfaceQuest sticker on a MicroLite binder and falsely\n represented to a Kesters customer that SurfaceQuest had\n manufactured MicroLite,\n\n • put a SurfaceQuest sticker on a MicroLite sample and falsely\n told Kesters customers that SurfaceQuest had invented\n MicroLite, and\n\n • allowed a SurfaceQuest dealer to advertise with an image of\n MicroLite.\n\n Both parties moved for summary judgment on Kesters’ claim under\n\nthe Lanham Act. The district court granted SurfaceQuest’s motion and\n\ndenied Kesters’.\n\n\n\n\n 3\n\f Appellate Case: 24-3112 Document: 50-1 Date Filed: 01/06/2026 Page: 4\n\n\n\nIII. We conduct de novo review based on the standard for summary\n judgment.\n\n We conduct de novo review, applying the standard that governed in\n\ndistrict court. Cypert v. Indep. Sch. Dist. No. 1-050 of Osage Cnty., 661\n\nF.3d 477, 480 (10th Cir. 2011). Under this standard, the district court\n\nneeded to grant summary judgment if a party had shown the absence of a\n\ngenuine dispute of material fact and an entitlement to judgment as a matter\n\nof law. Est. of Harmon v. Salt Lake City, 134 F.4th 1119, 1122 (10th Cir.\n\n2025). Because both parties moved for summary judgment, we separately\n\nreview their motions in the light most favorable to the non-moving parties.\n\nUnited States v. Sup. Ct. of N.M., 839 F.3d 888, 906–07 (10th Cir. 2016).\n\nIV. Kesters needed to establish an injury.\n\n The district court granted summary judgment to SurfaceQuest based\n\non the lack of an injury. Kesters challenges this ruling, but acknowledges\n\nthat it needed to prove an injury. See Lexmark Int’l, Inc. v. Static Control\n\nComponents, Inc., 572 U.S. 118, 133, 140 (2014) (requiring proof of an\n\ninjury under the Lanham Act). That injury needed to involve a direct\n\ndiversion of sales or a loss of goodwill. Bimbo Bakeries USA, Inc. v.\n\nSycamore, 29 F.4th 630, 644 (10th Cir. 2022).\n\nV. Injury isn’t presumed.\n\n In district court, SurfaceQuest contended that Kesters hadn’t\n\npresented evidence of an injury. In response, Kesters asserted that the\n\n\n 4\n\f Appellate Case: 24-3112 Document: 50-1 Date Filed: 01/06/2026 Page: 5\n\n\n\ndistrict court should presume an injury. A presumption exists when the\n\nplaintiff proves that\n\n • the “defendant has falsely and materially inflated the value of\n its product (or deflated the value of the plaintiff ’s product)”\n and\n\n • the “plaintiff and defendant are the only two significant\n participants in a market or submarket.”\n\nVitamins Online, Inc. v. Heartwise, Inc., 71 F.4th 1222, 1240 (10th Cir.\n\n2023).\n\n Kesters argues on appeal that the district court should have presumed\n\ninjury based on the use of literally false advertisements in a limited\n\nmarket. For the sake of argument, we can assume that SurfaceQuest’s\n\nadvertisements were literally false. 2 Even with this assumption, however,\n\nKesters failed to create a genuine dispute of material fact regarding the\n\npresence of a limited market.\n\n Kesters points out that the presumption may apply to a sparsely\n\npopulated market even if more than two competitors exist. But a market is\n\nsparsely populated only when the other participants are insignificant. Id. at\n\n1240 & n.6. Otherwise, the court can’t assume that the plaintiff ’s lost sales\n\nwould go to the defendant. Id.\n\n\n\n\n2\n We can also assume, without deciding, that the use of literally false\nadvertisements would satisfy the first requirement for an injury. Vitamins\nOnline, 71 F.3d at 1240.\n 5\n\f Appellate Case: 24-3112 Document: 50-1 Date Filed: 01/06/2026 Page: 6\n\n\n\n In district court, SurfaceQuest showed the existence of multiple\n\ncompetitors; and Kesters failed to respond with any argument or evidence\n\nabout their insignificance. But on appeal, Kesters insists that it did present\n\nsuch evidence, pointing to an affidavit by Mr. Jacob Walters that\n\naccompanied a reply brief supporting Kesters’ own motion for summary\n\njudgment. Kesters didn’t mention this affidavit when responding to\n\nSurfaceQuest’s motion for summary judgment and failed to include the\n\naffidavit in the exhibits accompanying the response. So the district court\n\ndidn’t mention the affidavit when ruling on SurfaceQuest’s motion for\n\nsummary judgment.\n\n Kesters argues that the district court should have considered the\n\naffidavit when ruling on SurfaceQuest’s motion. But this argument reflects\n\na misunderstanding of the district court’s obligation when ruling on cross-\n\nmotions for summary judgment. When both parties seek summary\n\njudgment, the District of Kansas treats the motions separately. See United\n\nStates v. Davison, 768 F. Supp. 3d 1324, 1329 (D. Kan. 2025) (explaining\n\nthat “[c]ross summary judgment motions should be evaluated as two\n\nseparate motions”); see also Banner Bank v. First Am. Title Ins. Co., 1916\n\nF.3d 1323, 1326 (10th Cir. 2019) (“Cross-motions for summary judgment\n\nare treated as two individual motions for summary judgment and are held\n\nto the same standard . . . .”). So the district court didn’t err by separately\n\nconsidering each motion.\n\n 6\n\f Appellate Case: 24-3112 Document: 50-1 Date Filed: 01/06/2026 Page: 7\n\n\n\n Granted, the district court can consider both motions in the same\n\nhearing or rule on them together in the same order. See EEOC v. UPS\n\nGround Freight, 443 F. Supp. 3d 1270, 1276 (D. Kan. 2020) (stating that\n\nthe court can address “the legal arguments together” when cross-motions\n\nfor summary judgment overlap). But the district court must separately\n\nconsider each motion on its own. Banner Bank, 916 F.3d at 1326. So the\n\ndistrict court appropriately decided SurfaceQuest’s motion based on all of\n\nthe evidence presented in connection with that motion. The Walters\n\naffidavit didn’t appear anywhere in that evidence.\n\n Even if we were to consider the evidence that Kesters presented in\n\nsupport of its own motion, however, that evidence wouldn’t include the\n\nWalters affidavit. Kesters presented the affidavit for the first time in a\n\nreply brief. But that brief was too late. See Lowther v. Child. Youth & Fam.\n\nDep’t, 101 F.4th 742, 759 (10th Cir. 2024) (“Our case law forbids the\n\ndistrict court from relying on new arguments or materials to decide a\n\nsummary judgment motion unless the opposing party is provided an\n\nopportunity to respond.” (quoting Geddes v. United Staffing All. Emp. Med.\n\nPlan, 469 F.3d 919, 928 (10th Cir. 2006))); see also Modaine v. Am. Drug\n\nStores, Inc., 408 F. Supp. 2d 1169, 1203 (D. Kan. 2006) (“The Court will\n\nnot consider new arguments in a party’s reply brief.”).\n\n Even if we were to consider the affidavit, however, it would not\n\ncreate a genuine dispute of material fact on a presumption of injury. That\n\n 7\n\f Appellate Case: 24-3112 Document: 50-1 Date Filed: 01/06/2026 Page: 8\n\n\n\npresumption would be available only if Kesters and SurfaceQuest had been\n\nthe only significant participants in the market. See p. 5, above. To\n\ndetermine the scope of the market, we examine “cross-elasticity of\n\ndemand,” which measures the substitutability of products. Vitamins Online,\n\n71 F.4th at 1240. “A high cross-elasticity of demand indicates that products\n\nare substitutes; a low cross-elasticity of demand indicates that the products\n\nare not substitutes and, as a result, do not compete in the same market.” Id.\n\n(quoting Lenox MacLaren Surgical Corp. v. Medtronic, Inc., 762 F.3d 114,\n\n1120 (10th Cir. 2014)).\n\n Kesters concedes that the Walters affidavit didn’t address cross-\n\nelasticity of demand. Oral Arg. at 8:28–8:54. To the contrary, the affidavit\n\naddressed only similarities between the products made by Kesters and\n\nSurfaceQuest. But these similarities didn’t necessarily affect the ability to\n\nsubstitute products. See Telecor Commc’ns, Inc. v. Sw Bell Tel. Co., 305\n\nF.3d 1124, 1132 (10th Cir. 2002) (stating that “[r]easonable\n\ninterchangeability does not depend upon product similarity”). So a single\n\nmarket may include companies making dissimilar products. See Vitamins\n\nOnline, 71 F.4th at 1241 (stating that multiple manufacturers will often\n\n“make up a relevant market, even if there are differences between the\n\nmanufactured products”).\n\n Because Kesters did not present any evidence or arguments as to\n\ncross-elasticity of demand, the factfinder couldn’t limit the significant\n\n 8\n\f Appellate Case: 24-3112 Document: 50-1 Date Filed: 01/06/2026 Page: 9\n\n\n\nparticipants to Kesters and SurfaceQuest. So the district court couldn’t\n\npresume an injury to Kesters.\n\nVI. No evidence exists of an actual injury.\n\n Because the court couldn’t presume an injury, Kesters needed to\n\nshow an actual injury from SurfaceQuest’s deceptive advertising. Lexmark\n\nInt’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 133 (2014).\n\n Kesters alleges an actual injury by losing a chance to sell items to a\n\nstore called Hy-Vee. In 2021, Hy-Vee sought bids for separate projects\n\ninvolving the beauty departments, produce departments, and health\n\nmarkets. Kesters successfully bid for this work and completed the projects\n\nfor the beauty and produce departments. But Kesters lost the bid for the\n\nhealth markets and attributes the loss to SurfaceQuest’s false advertising.\n\n The Lanham Act protects against actual injuries in the form of lost\n\nprofits. See id. at 134 (concluding that the plaintiff ’s lost sales were\n\ncognizable under the Lanham Act). But Kesters must prove “a causal\n\nconnection” between SurfaceQuest’s false advertising and an actual injury.\n\nVitamins Online, 71 F.4th at 1238; see also Lexmark Int’l, Inc., 572 U.S. at\n\n133 (concluding that the plaintiff ordinarily must show injury “flowing\n\ndirectly from the deception wrought by the defendant’s advertising”).\n\n Kesters didn’t present evidence that it had lost a bid for Hy-Vee as a\n\nresult of SurfaceQuest’s false advertisements. For example, Kesters\n\npresented no evidence that\n\n 9\n\f Appellate Case: 24-3112 Document: 50-1 Date Filed: 01/06/2026 Page: 10\n\n\n\n • SurfaceQuest had obtained the Hy-Vee projects that Kesters\n allegedly lost;\n\n • SurfaceQuest had shown its marketing materials to Hy-Vee; or\n\n • Hy-Vee had seen any of SurfaceQuest’s marketing materials.\n\nAbsent such evidence, the district court couldn’t reasonably infer a causal\n\nconnection between SurfaceQuest’s false advertising and Kesters’ loss of\n\nthe bid.\n\n Because Kesters did not provide any evidence of an injury from false\n\nadvertising, SurfaceQuest was entitled to summary judgment on the\n\nelement of an actual injury.\n\nVII. The award of summary judgment to SurfaceQuest renders\n Kesters’ motion moot.\n\n Like SurfaceQuest, Kesters moved for summary judgment on its\n\nclaim under the Lanham Act. We’ve concluded that the district court didn’t\n\nerr in granting summary judgment to SurfaceQuest on this claim. That\n\nconclusion moots Kesters’ argument that it should have obtained summary\n\njudgment. We thus affirm the denial of Kesters’ motion. Murray ex rel.\n\nMurray v. Montrose Cnty. Sch. Dis. RE-1J, 51 F.3d 921, 931 (10th Cir.\n\n1995).\n\n ** *\n\n Viewed in the light most favorable to Kesters, the evidence does not\n\nsupport the existence of an injury. So the district court didn’t err in\n\n\n\n 10\n\f Appellate Case: 24-3112 Document: 50-1 Date Filed: 01/06/2026 Page: 11\n\n\n\ngranting summary judgment to SurfaceQuest on the claim of false\n\nadvertising. This ruling rendered Kesters’ motion moot.\n\n Affirmed.\n\n\n\n\n 11", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11236309/", "author_raw": "BACHARACH, Circuit Judge."}]}	MATHESON	KELLY	BACHARACH	1		{"MATHESON": ", Circuit", "KELLY": ", Circuit", "BACHARACH": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10769724/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,771,074	Bruner v. Cassidy	2026-01-08	23-6216	U.S. Court of Appeals for the Tenth Circuit	{"judges": "Before HOLMES, Chief Judge, EBEL, and ROSSMAN, Circuit Judges.", "parties": "", "opinions": [{"type": "010combined", "text": "Appellate Case: 23-6216 Document: 47-1 Date Filed: 01/08/2026 Page: 1\n FILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS January 8, 2026\n\n Christopher M. Wolpert\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n LAQUITA BRUNER, as Administrator of\n the Estate of Dawawn Q. McCoy,\n\n Plaintiff - Appellee,\n\n v. No. 23-6216\n\n OFFICER KELLY CASSIDY, an\n individual; OFFICER BRANDON LEE, an\n individual; OFFICER ROBIN RIDNER, an\n individual,\n\n Defendants - Appellants.\n\n and\n\n CITY OF OKLAHOMA CITY, a\n municipal corporation; CHIEF WADE\n GOURLEY, an individual; OKC JOSEPH\n INVESTMENTS, LLC, d/b/a Biltmore\n Hotel, an Oklahoma limited liability\n company,\n\n Defendants.\n _________________________________\n\n Appeal from the United States District Court\n for the Western District of Oklahoma\n (D.C. No. 5:22-CV-00199-HE)\n _________________________________\n\nChris J. Collins (Stacey Haws Felkner and W.R. Moon, Jr. with him on the briefs), of\nCollins Zorn & Wagner, PLLC, Oklahoma City, Oklahoma, for Defendants-Appellants.\n\nBrittini L. Jagers-Johnson, of Jagers & Johnson, Attorneys at Law, PLLC, Oklahoma\nCity, Oklahoma for Plaintiff-Appellee.\n\f Appellate Case: 23-6216 Document: 47-1 Date Filed: 01/08/2026 Page: 2\n\n\n\n _________________________________\n\nBefore HOLMES, Chief Judge, EBEL, and ROSSMAN, Circuit Judges.\n _________________________________\n\nEBEL, Circuit Judge.\n _________________________________\n\n In this interlocutory appeal, Appellants officers Cassidy, Lee, and Ridner\n\nchallenge the district court’s decision to deny them qualified immunity on Appellee\n\nBruner’s 42 U.S.C. § 1983 excessive force claim. Having jurisdiction under\n\n28 U.S.C. § 1291, see Mitchell v. Forsyth, 472 U.S. 511, 530 (1985), we AFFIRM.\n\n I. BACKGROUND\n\n Because this case comes to us on an interlocutory appeal of a denial of\n\nqualified immunity at the summary judgment stage of litigation, we must “take as\n\ntrue the facts the district court has determined a reasonable jury could find at trial.”\n\nMcCowan v. Morales, 945 F.3d 1276, 1280 (10th Cir. 2019) (quoting Walton v.\n\nPowell, 821 F.3d 1204, 1207 (10th Cir. 2016)). “[W]e are not at liberty to review a\n\ndistrict court’s factual conclusions, such as the existence of a genuine issue of\n\nmaterial fact for a jury to decide, or that a plaintiff’s evidence is sufficient to support\n\na particular factual inference.” Zia Tr. Co. ex rel. Causey v. Montoya, 597 F.3d\n\n1150, 1152 (10th Cir. 2010) (quoting Fogarty v. Gallegos, 523 F.3d 1147, 1154\n\n(10th Cir. 2008). Therefore, we give the following facts as determined by the district\n\ncourt.\n\n On March 27, 2020, at approximately 1:25 a.m., a security guard at the\n\nBiltmore Hotel in Oklahoma City, Oklahoma called 911 to report that an\n\n 2\n\f Appellate Case: 23-6216 Document: 47-1 Date Filed: 01/08/2026 Page: 3\n\n\n\nunauthorized individual was refusing to leave a guest’s room at the hotel. The guard\n\nreported that the individual, later identified as Dawawn McCoy, seemed “high” and\n\nwas insisting that he could not walk. Sergeant Kelly Cassidy of the Oklahoma City\n\nPolice Department (OCPD) responded to the call and made contact with McCoy.\n\nDuring their conversation, McCoy refused to leave voluntarily and indicated that he\n\ncould not walk, so Cassidy requested emergency medical personnel. Fire department\n\npersonnel arrived first and evaluated McCoy, concluding he showed no signs of\n\nneeding immediate medical attention. McCoy also refused medical care and\n\ntransportation to a hospital. As a result, an ambulance that was on the way with\n\nemergency medical personnel was cancelled.\n\n At the time of this incident, the county was not jailing persons for minor\n\ncrimes due to COVID protocols, so Cassidy contacted his supervisor, Lieutenant\n\nReeder, for guidance on how to proceed with McCoy. Reeder advised him to get a\n\ncitation for trespass signed by the hotel security guard, and then place McCoy under\n\narrest and escort him off the hotel property. Anticipating that they might need to\n\ncarry McCoy in light of his refusal to stand up, Cassidy called for additional officers\n\nto assist in arresting McCoy and removing him from the premises.\n\n Sergeant Brandon Lee and Officer Robin Ridner responded to the call. The\n\nthree officers turned on their body worn cameras and walked into the room where\n\nMcCoy was lying on top of the made bed. Cassidy explained to McCoy that he was\n\ntrespassing, and he could choose either to leave the premises voluntarily or be\n\n\n\n 3\n\f Appellate Case: 23-6216 Document: 47-1 Date Filed: 01/08/2026 Page: 4\n\n\n\nhandcuffed and escorted off. McCoy again refused to leave voluntarily, insisting that\n\nhe was unable to stand up.\n\n Cassidy proceeded to move toward McCoy and attempt to place McCoy in\n\nhandcuffs. The other two officers moved in to assist as McCoy pulled his hands in to\n\nhis chest and it was clear he was not going to be compliant. McCoy refused the\n\nofficers’ orders to put his hands behind his back, stating, “I can’t get my hands\n\nbehind my back,” despite actively gesturing with his hands and resisting officers’\n\nefforts to force them back. (Lee BWC 1:29–1:38.) As the officers engaged in\n\nphysical force to handcuff McCoy, McCoy resisted by kicking his legs and feet.\n\nThe officers believed that McCoy seemed “abnormally and uncommonly strong.”\n\nAplt. Br. 13.\n\n The officers proceeded to struggle with McCoy for roughly five minutes as he\n\nresisted handcuffing. About a minute into the struggle, the officers warned McCoy\n\nthat they were going to pepper spray him and proceeded to do so twice. It did not\n\nappear to have much effect on McCoy. A couple minutes after that, Lee warned\n\nMcCoy that he would be tased if he did not stop kicking. About ten seconds later,\n\nLee deployed his taser twice in the back of McCoy’s leg. The officers were then able\n\nto handcuff McCoy with his hands behind his back, though he continued to yell and\n\nkick his legs around.\n\n At this point, McCoy was lying on his side on the floor. Officers then rolled\n\nhim onto his stomach. The district court acknowledged that the body cam videos are\n\nnot entirely clear on what happened but found that, “viewed in the light most\n\n 4\n\f Appellate Case: 23-6216 Document: 47-1 Date Filed: 01/08/2026 Page: 5\n\n\n\nfavorable to [Appellee], the videos support an inference that there was a period of\n\nroughly a minute and a half during which McCoy had stopped resisting and was face\n\ndown with one officer’s knee in McCoy’s back, while another officer pressed\n\nMcCoy’s bent legs against his buttocks.” (Dist. Ct. Order 5.) At the end of that\n\nperiod, the officer with his knee on McCoy’s back stood up and released the pressure\n\non McCoy’s back, while McCoy’s legs remained bent up toward his buttocks for\n\nseveral more minutes.\n\n As McCoy continued to lay in this position on his stomach, officers\n\nperiodically asked him questions, checked his breathing, and twice rinsed his eyes\n\nwith water to flush out the pepper spray. However, they never received any verbal\n\nresponse other than a few grunts. Approximately ten minutes after being placed in\n\nhandcuffs, the officers noticed that McCoy’s breathing appeared to have changed and\n\nhis pulse was faint or missing. They began CPR and called for emergency medical\n\npersonnel. The officers also administered multiple doses of Narcan in case McCoy\n\nwas experiencing an overdose. Emergency medical personnel arrived, took over\n\nCPR, and administered various other medical procedures before taking him to the\n\nnearest hospital.\n\n McCoy died in the hospital six days later. The medical examiner listed the\n\ncause of death as “hypoxic-ischemic encephalopathy following cardiac arrest in the\n\nsetting of methamphetamine use and physical restraint.” Dist. Ct. Order 6.\n\n\n\n\n 5\n\f Appellate Case: 23-6216 Document: 47-1 Date Filed: 01/08/2026 Page: 6\n\n\n\n II. PROCEDURE\n\n Plaintiff LaQuita Bruner, as Administrator of the Estate of Dawawn McCoy,\n\nbrought suit under 42 U.S.C. § 1983 in the U.S. District Court for the Western\n\nDistrict of Oklahoma against Appellants Sgt. Cassidy, Sgt. Lee, and Officer Ridner,\n\nas well as against the city of Oklahoma City and police Chief Gourley, all for\n\nviolations of McCoy’s constitutional rights. Bruner also brought a negligence claim\n\nagainst the Biltmore Hotel. Only the claims against the Appellant officers are at\n\nissue in this appeal.\n\n Bruner claimed that the officers violated McCoy’s Fourth Amendment rights\n\nby using excessive force against him and by their deliberate indifference to his\n\nmedical needs. The officers filed a motion for summary judgment on the grounds of\n\nqualified immunity for each of these claims. The district court granted the officers’\n\nmotion with respect to the deliberate indifference claims but denied the motion with\n\nrespect to the excessive force claims. The Order granting in part and denying in part\n\nthe officers’ motion for summary judgment was entered on November 28, 2023. The\n\nofficers timely filed this appeal on December 27, 2023.\n\n III. APPELLATE JURISDICTION\n\n While we ordinarily lack jurisdiction to consider non-final orders, such as a\n\ndenial of summary judgment, denials of qualified immunity are immediately\n\nappealable “to the extent that [the appeal] turns on an issue of law.” McWilliams v.\n\nDinapoli, 40 F.4th 1118, 1122 (10th Cir. 2022) (quoting Mitchell v. Forsyth,\n\n472 U.S. 511, 530 (1985)); see also Andersen v. DelCore, 79 F.4th 1153, 1159\n\n 6\n\f Appellate Case: 23-6216 Document: 47-1 Date Filed: 01/08/2026 Page: 7\n\n\n\n(10th Cir. 2023) (“The reasonableness of an officer’s use of force is a legal issue that\n\nwe may resolve on an interlocutory appeal.”) (citing McWilliams, 40 F.4th at 1122,\n\n1124). “[We] review the denial of a summary judgment motion raising qualified\n\nimmunity questions de novo.” McCowan, 945 F.3d at 1281.\n\n On interlocutory appeal of a summary judgment order denying qualified\n\nimmunity, this court’s jurisdiction is generally limited to “abstract questions of law,”\n\nrather than a review of the district court’s factual determinations. Clerkley v.\n\nHolcomb, 121 F.4th 1359, 1363 (10th Cir. 2024) (quoting Vette v. K-9 Unit Deputy\n\nSanders, 989 F.3d 1154, 1162 (10th Cir. 2021)); see also McCowan, 945 F.3d\n\nat 1282. “[I]t is generally the district court’s exclusive job to determine which facts a\n\njury could reasonably find from the evidence presented to it by the litigants.” Lewis\n\nv. Tripp, 604 F.3d 1221, 1225 (10th Cir. 2010) (citing Johnson v. Jones, 515 U.S.\n\n304, 313 (1995)). Thus, “if a district court concludes that a reasonable jury could\n\nfind certain specified facts in favor of the plaintiff, . . . we usually must take them as\n\ntrue—and do so even if our own de novo review of the record might suggest\n\notherwise as a matter of law.” Id.; see also Vette, 989 F.3d at 1162 (quoting Lynch v.\n\nBarrett, 703 F.3d 1153, 1159 (10th Cir. 2013)).\n\n However, there are exceptions to that general rule. Relevant here, “when the\n\n‘version of events’ the district court holds a reasonable jury could credit ‘is blatantly\n\ncontradicted by the record,’ we may assess the case based on our own de novo view\n\nof which facts a reasonable jury could accept as true.” Lewis, 604 F.3d at 1225–26\n\n(quoting Scott v. Harris, 550 U.S. 372, 380 (2007)). This is a “very difficult”\n\n 7\n\f Appellate Case: 23-6216 Document: 47-1 Date Filed: 01/08/2026 Page: 8\n\n\n\nstandard that will only be satisfied when the district court’s findings “constitute\n\nvisible fiction.” Vette, 989 F.3d at 1162 (quoting Crowson v. Washington Cnty.,\n\n983 F.3d 1166, 1177 (10th Cir. 2020)).\n\n IV. DISCUSSION\n\n The officers make a factual and a legal challenge to the district court’s\n\ndecision to deny their summary judgment motion on the basis of qualified immunity.\n\n A. The body camera videos do not “blatantly contradict” the district\n court’s findings that officers continued to use force after McCoy was\n subdued\n\n Beginning with the factual dispute, the officers argue that during the several\n\nminutes after McCoy was handcuffed, McCoy was not subdued and was still resisting\n\narrest. But the district court determined that a reasonable jury could find that McCoy\n\nwas subdued when he stopped kicking, and yet the officers continued to use force for\n\na minute and a half while he was subdued: “the [body camera] videos support an\n\ninference that there was a period of roughly a minute and a half during which McCoy\n\nhad stopped resisting and was face down with one officer’s knee in McCoy’s back,\n\nwhile another officer pressed McCoy’s bent legs against his buttocks.” (Dist. Ct.\n\nOrder 5.) Therefore, we must accept the district court’s finding unless we conclude it\n\nis “blatantly contradicted” by the evidence. We cannot make such a conclusion.\n\n The videos clearly show that McCoy is lying on his stomach during this\n\nninety-second period with his hands cuffed behind his back, one officer’s knee on his\n\nback, and another bending his legs up against his buttocks. The officers argue,\n\nhowever, that McCoy had not stopped resisting and still posed a threat during this\n\n 8\n\f Appellate Case: 23-6216 Document: 47-1 Date Filed: 01/08/2026 Page: 9\n\n\n\ntime because he continued kicking his legs. Therefore, they assert, he was not\n\nsubdued.\n\n The videos do show McCoy moving his legs, but it is difficult to say whether\n\nhe is kicking. The officers point out that roughly twenty seconds into the minute-\n\nand-a-half period, the officer pressing down on McCoy’s legs says, “quit kicking\n\nme!” and appears to be wrestling with McCoy’s legs to keep them pressed down\n\nagainst his buttocks. (Ex. 9, Cassidy BWC at 7:36–7:45.) But the videos do not\n\nmake the extent of McCoy’s leg motions clear, and the fact that he was still moving\n\nhis legs does not render the district court’s conclusion that he had stopped resisting a\n\n“visible fiction.”\n\n To be sure, the officers argue that, in the context of the strenuous minutes-long\n\nstruggle to get McCoy in handcuffs, it was reasonable for them to interpret his\n\ncontinued leg motions as resistance. However, the reasonableness of the officers’\n\nunderstanding of the situation is a legal question, which we address below, and this\n\ncontention does not contradict the district court’s determination that a reasonable jury\n\ncould find that McCoy had, objectively, stopped resisting.\n\n B. Given the facts found by the district court, the officers’ use of force\n was not objectively reasonable\n\n Turning to the legal question on appeal, “[t]he doctrine of qualified immunity\n\nshields officials from civil liability so long as their conduct ‘does not violate clearly\n\nestablished statutory or constitutional rights of which a reasonable person would have\n\nknown.’” Andersen, 79 F.4th at 1162 (quoting Mullenix v. Luna, 577 U.S. 7, 11\n\n\n 9\n\f Appellate Case: 23-6216 Document: 47-1 Date Filed: 01/08/2026 Page: 10\n\n\n\n(2015) (per curiam)). When a defendant asserts a qualified immunity defense, this\n\n“creates a presumption that [the defendant is] immune from suit.” Id. (quoting Smart\n\nex rel. Est. of Smart v. City of Wichita, 951 F.3d 1161, 1168 (10th Cir. 2020))\n\n(alteration in original). “To overcome the presumption of immunity, the plaintiff\n\nbears the burden to establish that (1) the defendant violated his or her constitutional\n\nor statutory rights, and (2) ‘that the right was clearly established at the time of the\n\ndefendant's conduct.’” Id. (quoting Arnold v. City of Olathe, 35 F.4th 778, 788\n\n(10th Cir. 2022)).\n\n Therefore, we must first determine whether the officers’ use of force against\n\nMcCoy violated his constitutional rights. Given the risks associated with the\n\nmaneuvers the officers used, the lack of resistance from McCoy once he stopped\n\nkicking per the district court’s finding, and the amount of time that the officers\n\ncontinued to exert substantial force upon McCoy after he was subdued, we find no\n\nerror in the district court’s conclusion that the officers’ use of force was excessive\n\nand did violate McCoy’s Fourth Amendment rights.\n\n Claims against law enforcement officers alleging excessive force during an\n\narrest implicate the Fourth Amendment’s protections against unreasonable seizures.\n\nId. at 1163 (citing Graham v. Connor, 490 U.S. 386, 394 (1989)). The Supreme\n\nCourt “has long recognized that the right to make an arrest or investigatory stop\n\nnecessarily carries with it the right to use some degree of physical coercion or threat\n\nthereof to effect it.” Graham, 490 U.S. at 396. Therefore, “[t]o establish a\n\nconstitutional violation, the plaintiff must demonstrate the force used was objectively\n\n 10\n\f Appellate Case: 23-6216 Document: 47-1 Date Filed: 01/08/2026 Page: 11\n\n\n\nunreasonable.” Est. of Taylor v. Salt Lake City, 16 F.4th 744, 759 (10th Cir. 2021)\n\n(quoting Sturdivan ex rel. Est. of Larsen v. Murr, 511 F.3d 1255, 1259 (10th Cir.\n\n2008)). In determining whether a particular use of force was objectively\n\nunreasonable, we consider three non-exclusive factors set forth by the Supreme Court\n\nin Graham v. Connor: “(1) ‘the severity of the crime at issue,’ (2) ‘whether the\n\nsuspect poses an immediate threat to the safety of the officers or others,’ and\n\n(3) ‘whether [the suspect] is actively resisting arrest or attempting to evade arrest by\n\nflight.’” McCoy v. Meyers, 887 F.3d 1034, 1045 (10th Cir. 2018) (quoting Graham,\n\n490 U.S. at 396) (alteration in original).\n\n The first Graham factor, the severity of the crime, weighs against\n\nreasonableness: McCoy was nonviolently trespassing. To be sure, when it became\n\nclear that McCoy would not leave voluntarily, some force was required to remove\n\nhim from the premises. But deadly force will generally not be appropriate in a case\n\nof nonviolent misdemeanor trespass, which is not overly serious nor threatening. See\n\nFogarty, 523 F3d at 1160 (finding officers’ force unreasonable for misdemeanor\n\narrest); see also Solomon v. Auburn Hills Police Dep’t, 389 F.3d 167, 174 (6th Cir.\n\n2004) (describing trespass as “a minor offense and certainly not a severe crime that\n\nwould justify the amount of force used”). The other two Graham factors form a\n\ncentral part of the dispute between the parties: whether and when McCoy was\n\nresisting arrest and posed a threat to the officers or others. We turn now to address\n\nthe reasonableness of the force used in the context of these latter two Graham factors.\n\n\n\n 11\n\f Appellate Case: 23-6216 Document: 47-1 Date Filed: 01/08/2026 Page: 12\n\n\n\n We assess objective reasonableness from the perspective of a reasonable\n\nofficer on the scene, looking at the totality of the circumstances. Est. of Larsen,\n\n511 F.3d at 1259–60.\n\n Our “calculus of reasonableness must embody allowance for the fact that\n police officers are often forced to make split-second judgments—in\n circumstances that are tense, uncertain, and rapidly evolving—about the\n amount of force that is necessary in a particular situation.” Graham,\n 490 U.S. at 396–97. So, we assess the reasonableness of “a particular use\n of force” from “the perspective of a reasonable officer on the scene, rather\n than with the 20/20 vision of hindsight.” Id. at 396.\nAndersen, 79 F.4th at 1163. The officers are correct in noting that the leg restraint\n\nemployed was not definitionally a hog-tie position because McCoy’s legs and arms\n\nwere not bound to each other. See Cruz v. City of Laramie, 239 F.3d 1183, 1188\n\n(10th Cir. 2001). Nonetheless, the officers kept McCoy’s legs in a position similar to\n\nthat achieved by a hog-tie. It is this position, with the legs bent backwards towards\n\nthe buttocks, that was dangerous in the circumstances. Id. at 1188–89 (discussing\n\ndanger of positional asphyxia arising from “pressure on the back and placement in a\n\nprone position” that occurs in hog-ties and “analogous” restraints). Likewise, using\n\none’s knee to exert significant force on the back of a prone, face-down individual\n\nposes a risk of distress. See Weigel v. Broad, 544 F.3d 1143, 1149–50 (10th Cir.\n\n2008). We agree with the district court that these exertions of force, for a substantial\n\nduration after McCoy was subdued, could be excessive and objectively unreasonable.\n\n The officers argue that McCoy was not subdued and posed a threat to their\n\nsafety, and therefore, their force was justified. It is important to note that being\n\nhandcuffed does not necessarily mean the individual is subdued. See Giannetti v.\n\n 12\n\f Appellate Case: 23-6216 Document: 47-1 Date Filed: 01/08/2026 Page: 13\n\n\n\nCity of Stillwater, 216 F. App’x 756, 766 (10th Cir. 2007) (unpublished) (finding\n\ncontinued use of force after handcuffing reasonable when individual “actively\n\nresisted, kicked, and thrashed at the officers”). 1 As long as the individual continues\n\nto struggle, they may still be in the process of, and resisting, arrest. In the facts of\n\nthis case, it is also relevant that McCoy was observably under the influence of a\n\nnarcotic; officers in such situations sometimes may be justified in utilizing a greater\n\ndegree of force if it reasonably appears that the suspect has therefore become more\n\nunpredictable and presents a greater threat to the safety of the officers or others. See\n\nHinton v. City of Elwood, 997 F.2d 774, 781 (10th Cir. 1993) (noting lack of\n\nevidence that individual was under the influence of alcohol or drugs weighed against\n\nfinding threat to police or public); Edwards v. City of Muskogee, 841 F. App’x 79,\n\n80 n.2 (10th Cir. 2021) (unpublished). Therefore, up until the point when McCoy\n\nstopped actively resisting, the officer’s conduct was objectively reasonable under the\n\nlatter two Graham factors. 2\n\n The district court did, however, find that there was a ninety-second period in\n\nwhich McCoy was both handcuffed and no longer resisting, and yet the officers\n\nmaintained both significant force on his torso and on his legs in a position similar to\n\nthat of a hog-tie. At this point, McCoy no longer posed a threat to the safety of the\n\n\n\n 1\n Although not binding, we find Giannetti’s reasoning persuasive.\n 2\n Additionally, the officers gradually escalated the force used and provided\nwarnings before each stage of this escalation. See Palacios v. Fortuna, 61 F.4th\n1248, 1259 (10th Cir. 2023); see also Ceyala v. Toth, 2020 WL 6947721, at *6\n(D. Ariz. Mar. 5, 2020) (unreported).\n 13\n\f Appellate Case: 23-6216 Document: 47-1 Date Filed: 01/08/2026 Page: 14\n\n\n\nofficers or others, per the second Graham factor, nor was he resisting arrest, per the\n\nthird Graham factor. Thus, all three Graham factors suggest that the officers’\n\nconduct became objectively unreasonable in this ninety-second period, when McCoy\n\nexhibited signs of distress and the officers’ significant force was no longer\n\nreasonably justified.\n\n It is true that “[w]hether an individual has been subdued from the perspective\n\nof a reasonable officer depends on the officer having ‘enough time [] to recognize\n\n[that the individual no longer poses a threat] and react to the changed\n\ncircumstances.’” McCoy, 887 F.3d at 1048 (quoting Fancher v. Barrientos, 723 F.3d\n\n1191, 1201 (10th Cir. 2013)) (alterations in original). There will not be an exact\n\namount of time that will be “enough” in all cases for an officer to recognize a change\n\nin an individual’s behavior, as this inquiry is necessarily fact driven. See Fancher,\n\n723 F.3d at 1197, 1201 (finding officer had enough time to recognize and react to\n\nchanged circumstances between firing first round and subsequent six rounds in a\n\nmatter of seconds when he “stepped back, felt safer, and noticed Mr. Dominguez\n\nslump”); McCoy, 887 F.3d at 1050 (finding time in which suspect was unconscious,\n\nhandcuffed, zip-tied, and moved to a sitting position enough to recognize and react to\n\nchanged circumstances). But on the facts before the court, ninety seconds was more\n\nthan enough time.\n\n Also notable is McCoy’s change in behavior upon being put in a face-down\n\nposition: the contrast between McCoy’s initial struggle, in which the officers said he\n\nwas “abnormally and uncommonly strong,” and his subsequent silence and lack of\n\n 14\n\f Appellate Case: 23-6216 Document: 47-1 Date Filed: 01/08/2026 Page: 15\n\n\n\nresistance in this ninety-second period could have been an adequate sign of distress\n\nfor a reasonable officer to recognize. Cf. Jackson v. Wilkins, 517 F. App’x 311, 318\n\n(6th Cir. 2013) (unpublished) (finding, in the context of deliberate indifference, that\n\nofficers should have perceived potential health risk when suspect went from being\n\n“the ‘strongest’ and ‘most physical’ person they had ever fought” to “nearly helpless”\n\n“in the span of a few minutes”). Though not dispositive, a jury could find that it was\n\nobjectively unreasonable for the officers to ignore this observable sign that McCoy\n\nwas in distress.\n\n As the officers assert, circumstances rapidly evolve when effectuating an\n\narrest. And while we recognize that this often requires officers to make split-second\n\ndecisions without the benefit of hindsight, it is not an excuse to ignore clear signs\n\nthat an individual is no longer resisting and is in need of medical attention for a\n\nprolonged period of time. See Thomas v. Durastanti, 607 F.3d 655, 666 (10th Cir.\n\n2010) (recognizing that “circumstances may change within seconds eliminating the\n\njustification for deadly force,” but ultimately finding disorientation associated with\n\nbeing hit by a car made any mistake regarding ongoing threat reasonable). An\n\nindividual’s medical condition when subjected to significant force can change\n\nquickly, and officers must be attuned to these evolving circumstances and respond\n\nappropriately. On this record, we cannot say that it was appropriate for multiple\n\nofficers to continue to exert significant force on McCoy, employing maneuvers they\n\nknew could cause distress, for ninety seconds after he had become subdued.\n\n\n\n 15\n\f Appellate Case: 23-6216 Document: 47-1 Date Filed: 01/08/2026 Page: 16\n\n\n\n Of course, Appellee Bruner still must prove the excessive force claim at trial.\n\nBut we hold that a reasonable jury could find a violation of decedent McCoy’s Fourth\n\nAmendment rights.\n\n Finally, we note that the district court and the parties do not conduct separate\n\nqualified immunity analyses for each of the officers involved, despite differences in\n\ntheir actions. Recognizing “the party presentation principle” and its appropriate\n\nscope of application, Greenlaw v. United States, 554 U.S. 237, 244 (2008), we adopt\n\nthis approach as well in resolving this summary judgment appeal. We will not,\n\ntherefore, engage in individualized analyses of the officers’ conduct here as this\n\nmatter is presently presented to us.\n\n C. Clearly established that it was unreasonable\n\n Even if their conduct is deemed unreasonable in the instant case, officers are\n\nstill entitled to qualified immunity if the law did not clearly establish that the conduct\n\nconstituted a violation of constitutional rights at the time in which it occurred. We\n\nconclude, however, that the officers’ conduct as accepted for this appeal in the\n\nrelevant ninety-second period did violate clearly established law. Thus, the officers\n\nare not entitled to qualified immunity.\n\n “The Hope decision shifted the qualified immunity analysis from a scavenger\n\nhunt for prior cases with precisely the same facts toward the more relevant inquiry of\n\nwhether the law put officials on fair notice that the described conduct was\n\nunconstitutional.” Fancher, 723 F.3d at 1201 (citing Hope v. Pelzer, 536 U.S. 730,\n\n741 (2002)). When there is in-circuit precedent that clearly establishes the\n\n 16\n\f Appellate Case: 23-6216 Document: 47-1 Date Filed: 01/08/2026 Page: 17\n\n\n\nunlawfulness of the conduct, only one such precedential case is necessary to provide\n\nfair notice. See Quinn v. Young, 780 F.3d 998, 1005 (10th Cir. 2015).\n\n Here, the district court relied on the Tenth Circuit case of Weigel, among\n\nothers. Weigel, decided in 2008, was sufficient to clearly establish the unlawfulness\n\nof the officers’ conduct at issue here, which occurred in 2020. In Weigel, the\n\nindividual was involved in an automobile accident with a police vehicle, possibly\n\nresulting from Weigel’s intoxication. 544 F.3d at 1148. After Weigel was observed\n\nacting in a strange way, the reporting officer tackled Weigel to the ground for\n\nWeigel’s own safety. Id. This led to a larger struggle, involving another officer and\n\nbystanders, in which Weigel tried to take the officers’ weapons and avoid\n\nhandcuffing. Id. The officers eventually handcuffed Weigel, though he continued to\n\nstruggle. Id. While still face-down on the ground, the other officer applied force via\n\nhis knee to Weigel’s upper torso, one bystander laid across Weigel’s legs, and a\n\nsecond bystander wrapped plastic tubing around Weigel’s feet. Id. At this point, the\n\nreporting officer returned to his vehicle to warm his hands. Id. at 1149. Witnesses,\n\nincluding the reporting officer, indicated that Weigel was subdued when the reporting\n\nofficer returned to his vehicle. Id. Yet, the other officer continued to apply pressure\n\nto Weigel’s back with his knee. Id. When the reporting officer returned, they rolled\n\nWeigel onto his back and recognized that he was in full cardiac arrest. Id.\n\n This court determined that the officers were not entitled to qualified immunity\n\nbecause their actions violated Weigel’s Fourth Amendment rights that were clearly\n\nestablished as of 2002, id. at 1147, 1151–53: “the pressure placed on Mr. Weigel’s\n\n 17\n\f Appellate Case: 23-6216 Document: 47-1 Date Filed: 01/08/2026 Page: 18\n\n\n\nupper back as he lay on his stomach created a significant risk of asphyxiation and\n\ndeath” and reasonable officers should be familiar with these risks. Id. at 1152. The\n\ncourt also explicitly stated that an individual’s “apparent intoxication, bizarre\n\nbehavior, and vigorous struggle ma[k]e him a strong candidate for positional\n\nasphyxiation.” Id. (citing Cruz, 239 F.3d at 1188–89 (10th Cir. 2001)). Rather than\n\napplying force to a prone individual’s back, officers should “roll a suspect off of his\n\nstomach and onto his side as soon as he is cuffed.” Id. at 1150. Here, the officers\n\nrolled a handcuffed, intoxicated McCoy onto his stomach and applied significant\n\npressure on his upper back. These actions ran afoul of Weigel’s guidance.\n\n The officers argue that Weigel cannot have clearly established that their\n\nconduct was unconstitutional because, in Weigel, the individual’s legs were bound,\n\nwhereas McCoy’s were not. We are not persuaded by this distinction. To reiterate,\n\nthe purpose of this inquiry is not to search for a case with identical facts, but instead\n\nto determine if a reasonable officer would have known their conduct was\n\nunconstitutional. Weigel itself, which found that force exerted upon the torso was\n\nunreasonable when the suspect was subdued, concluded that Cruz, in 2001, had\n\nclearly established the unlawfulness of the conduct. Id. at 1154. Yet, in Weigel the\n\nindividual’s ankles were wrapped—though not tied together—with plastic tubing, id.\n\nat 1159 (O’Brien, J., dissenting), whereas the individual in Cruz had been hog-tied,\n\n239 F.3d at 1186. Weigel did not say that these two instances were identical, but\n\nrather that the principle drawn from Cruz was that once an individual was subdued,\n\napplying force to their back while prone is unreasonable. 544 F.3d at 1154.\n\n 18\n\f Appellate Case: 23-6216 Document: 47-1 Date Filed: 01/08/2026 Page: 19\n\n\n\n To be sure, the concurring opinion in Weigel distinguished between when the\n\nindividual’s legs were bound and when “the only restraint on his legs was the weight\n\nof a bystander sitting on them.” Id. at 1155 (Hartz, J., concurring). But this does not\n\nsupport the officers’ contention that the force used is only unreasonable when an\n\nindividual’s legs are bound. Again, we look for the principle reasonable officers\n\nmust draw from the law, not identical facts. When the plastic tubing was wrapped\n\naround Weigel’s feet, he was subdued—evidenced by the officer leaving the\n\nindividual, entrusting this restraint as sufficient to eliminate any danger. Id. at 1149,\n\n1154. Here, the district court determined that McCoy was subdued in the ninety-\n\nsecond period when he stopped resisting and his legs, though not tied together, were\n\nrestrained in a method notably akin to the hog-tie deemed unreasonable in Cruz.\n\n This court has already set out in other cases what Weigel clearly established\n\nwas unconstitutional. In McCoy, we held that Weigel, among other cases, had\n\nclearly established the unreasonable, unconstitutional nature of “the use of force\n\nwithout legitimate justification, as when a subject poses no threat or has been\n\nsubdued.” 887 F.3d at 1052. To be sure, the facts in McCoy differ in some aspects\n\nfrom the facts here, but McCoy and the cases it relied on “all share the decisive\n\nfactual circumstance that the defendants used excessive force on the plaintiff when he\n\nwas already subdued.” Id. at 1052–53. Likewise, in Estate of Booker v. Gomez, 745\n\nF.3d 405 (10th Cir. 2014), we concluded Weigel clearly established that applying\n\npressure to the back of a handcuffed individual was unconstitutional, Est. of Booker,\n\n745 F.3d at 424, in a case in which the individual’s legs were apparently not bound\n\n 19\n\f Appellate Case: 23-6216 Document: 47-1 Date Filed: 01/08/2026 Page: 20\n\n\n\ntogether. Id. at 413–14. As a result, it was clearly established in 2020 that the\n\nofficers’ conduct violated McCoy’s constitutional rights, due to the force applied to\n\nhis upper back and the restraint placed on his legs being similar to a hog-tie, even if\n\nhis legs were not bound together.\n\n V. CONCLUSION\n\n The district court determined, and the record does not contradict at this stage\n\nof the proceedings, that for a period of ninety seconds, McCoy was handcuffed and\n\nsubdued, and yet the officers continued to apply excessive force while McCoy was\n\nprone. This force came in the form of a knee in his back and a leg restraint similar in\n\neffect to a hog-tie, which are known to pose significant risks. This use of force was\n\nexcessive, and the law clearly established it was a constitutional violation at the time,\n\nmeaning the officers are not entitled to qualified immunity.\n\n Accordingly, we conclude that the district court correctly denied summary\n\njudgment as to the excessive force claims against the officers. The judgment of the\n\ndistrict court is AFFIRMED, and we REMAND this case to the district court for\n\nfurther proceedings consistent with this decision.\n\n\n\n\n 20\n\f Appellate Case: 23-6216 Document: 47-1 Date Filed: 01/08/2026 Page: 21\n\n\n\nBruner v. Cassidy, et al., No. 23-6216", "author": "EBEL, Circuit Judge."}, {"type": "concurrence", "author": "ROSSMAN", "text": "ROSSMAN, J., concurring\n\n I respectfully join in full Parts I, II, III, and IV(A) of the majority\n\nopinion. On the matter of qualified immunity, I agree with the majority\n\nopinion’s outcome, but my analysis is different.\n\n Since at least Weigel v. Broad, it has been clearly established in this\n\ncircuit that kneeling on a prone person’s back after they are subdued is a\n\nconstitutional violation “due to the significant risk of positional\n\nasphyxiation associated with such actions.” 544 F.3d 1143, 1155 (10th Cir.\n\n2008). As Ms. Bruner’s arguments on appeal make clear, this alone suffices\n\nto affirm the district court’s disposition. See Aplee. Resp. Br. at 4–6. We\n\ntherefore need not take up the issue of the leg restraints."}]}	HOLMES	EBEL	ROSSMAN	1		{"HOLMES": ", Chief", "EBEL": ", Circuit", "ROSSMAN": ", Circuit"}	2	0	1	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10771074/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,772,442	United States v. Eckstein	2026-01-09	24-3138	U.S. Court of Appeals for the Tenth Circuit	{"judges": "Before BACHARACH, MURPHY, and ROSSMAN, Circuit Judges.", "parties": "", "opinions": [{"author": "BACHARACH, Circuit Judge.", "type": "010combined", "text": "Appellate Case: 24-3138 Document: 69-1 Date Filed: 01/09/2026 Page: 1\n FILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS January 9, 2026\n Christopher M. Wolpert\n FOR THE TENTH CIRCUIT Clerk of Court\n _____________________________________________\n\n UNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v. No. 24-3138\n\n MICHAEL ECKSTEIN,\n\n Defendant - Appellant.\n ____________________________________________\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF KANSAS\n (D.C. No. 2:22-CR-20040-HLT-1)\n ______________________________________\n\nJustin A. Lollman, Gable Gotwals, Tulsa, Oklahoma, for Appellant.\n\nJared S. Maag, Assistant United States Attorney (Duston J. Slinkard,\nActing United States Attorney with him on the briefs), District of Kansas,\nTopeka, Kansas, for Appellee.\n ______________________________________________\n\nBefore BACHARACH, MURPHY, and ROSSMAN, Circuit Judges.\n _______________________________________________\n\nBACHARACH, Circuit Judge.\n _______________________________________________\n\n This appeal grew out of a disagreement between a criminal defendant\n\nand his attorney after they signed a plea agreement with the government.\n\f Appellate Case: 24-3138 Document: 69-1 Date Filed: 01/09/2026 Page: 2\n\n\n\nThe district court discussed the disagreement with the defendant and his\n\nattorney, and the matter was resolved.\n\n The appeal addresses the way that the district court resolved the\n\nmatter: The district court could address the disagreement, but couldn’t\n\nparticipate in any plea negotiations. Did the district court cross that line?\n\nWe answer no.\n\n1. The district court addresses a disagreement between the\n defendant and his attorney.\n\n The criminal charges against the defendant included fourteen counts\n\nthat could have resulted in life imprisonment and forfeiture of assets. 1 The\n\ngovernment negotiated with defense counsel and appeared to reach an\n\nagreement: The government would drop thirteen of the counts, and the\n\ndefendant would plead guilty to one count (distribution of\n\nmethamphetamine). The defendant, his retained attorney, and the\n\ngovernment signed the agreement; so the district court scheduled a change-\n\nof-plea hearing with the expectation that the defendant would plead guilty\n\nto one count of distributing methamphetamine.\n\n At the change-of-plea hearing, however, the defendant said that he\n\nneeded more information before he could decide whether to plead guilty.\n\n\n1\n These charges involved one count of conspiracy to distribute and\npossess methamphetamine with an intent to distribute, eleven counts of\ndistributing methamphetamine, one count of possessing methamphetamine\nwith intent to distribute, and one count of using a firearm during a drug-\ntrafficking crime.\n 2\n\f Appellate Case: 24-3138 Document: 69-1 Date Filed: 01/09/2026 Page: 3\n\n\n\nThe defense attorney expressed frustration and requested leave to\n\nwithdraw, explaining that his relationship with the defendant was “not\n\ngood.” Given this request, the district court conducted an ex parte\n\ndiscussion with the defendant and his attorney. In this discussion, the\n\nattorney said that his relationship with his client had “broken down” and\n\nleft them without any “attorney/client privilege or relationship.” Later in\n\nthe discussion, however, the defendant said that he would plead guilty and\n\ncarry out the agreement.\n\n2. The court didn’t participate in plea negotiations.\n\n The defendant points out that the district court couldn’t participate\n\nin plea negotiations. Fed. R. Crim. P. 11(c)(1). But did the district court’s\n\nex parte discussion constitute participation in plea negotiations?\n\n The defendant answers yes, but he admittedly failed to object in\n\ndistrict court on this ground. When a defendant fails to timely object in\n\ndistrict court, we ordinarily apply the plain-error standard. United States v.\n\nHerrera, 51 F.4th 1226, 1261 (10th Cir. 2022). Under this standard, the\n\ndefendant must satisfy a rigorous burden, showing not only that the district\n\ncourt erred but that the error itself was obvious and prejudicial. United\n\nStates v. Marshall, 307 F.3d 1267, 1270 (10th Cir. 2002).\n\n The parties disagree over the applicability of the plain-error\n\nstandard. We need not resolve this disagreement because the defendant\n\nhasn’t shown participation of the district court in plea negotiations.\n\n 3\n\f Appellate Case: 24-3138 Document: 69-1 Date Filed: 01/09/2026 Page: 4\n\n\n\n The district court is prohibited from participating in plea discussions.\n\nFed. R. Crim. P. 11(c)(1). This prohibition serves three purposes:\n\n 1. Minimizing the risk that defendant is coerced into pleading\n guilty,\n\n 2. preserving the district court’s impartiality, and\n\n 3. avoiding the appearance of impropriety.\n\nUnited States v. Cano-Varela, 497 F.3d 1122, 1132 (10th Cir. 2007).\n\n Participation is prohibited regardless of whether it is explicit or\n\nimplicit. The participation is explicit when a district court directly injects\n\nitself into plea negotiations. But the rule doesn’t prohibit a court from\n\nevery comment about a plea. Id. For example, a district court can comment\n\nabout a plea when disallowing an extension of the deadline to enter a plea.\n\nId. at 1132–33. But the prohibition may encompass a court’s discussion\n\nabout how a guilty plea would affect the eventual sentence. Id. at 1133.\n\nAside from these settings, however, gray areas often arise, requiring us to\n\nfocus on the context for the district court’s involvement. See United States\n\nv. Sandoval-Enrique, 870 F.3d 1207, 1218 (10th Cir. 2017) (“The inquiry\n\ninto whether the district court improperly participated in the parties’ plea\n\nnegotiations depends on ‘the particular facts and circumstances,’ which\n\n‘should be assessed, not in isolation, but in light of the full record.’”\n\n(quoting United States v. Davila, 569 U.S. 597, 610–12 (2013))). The\n\ncontext here involves a district court’s dilemma when a defendant balks at\n\n\n 4\n\f Appellate Case: 24-3138 Document: 69-1 Date Filed: 01/09/2026 Page: 5\n\n\n\npleading guilty after signing a plea agreement and defense counsel asks to\n\nwithdraw.\n\n To make an informed decision about counsel’s motion to withdraw,\n\nthe court asked the defendant and his attorney for their perspectives. The\n\ndefendant answered, explaining that he needed more information before he\n\ncould decide whether to plead guilty. But if the court were to let the\n\nattorney withdraw, who would inform and advise the defendant? Perhaps\n\nthe defendant would get a new attorney. But the attorney would need time\n\nto gather enough information to advise the defendant. In the meantime,\n\nwould the same plea offer remain available to the defendant? No guarantee\n\nexisted because the government could revoke the plea offer any time before\n\nthe district court accepted it. United States v. Novosel, 481 F.3d 1288, 1293\n\n(10th Cir. 2007).\n\n The court shared that possibility with the defendant, explaining that\n\nthe government didn’t have to keep the plea offer open indefinitely. The\n\ndefendant tells us that this explanation constituted the district court’s\n\nparticipation in plea negotiations by pressing for an immediate decision on\n\nthe plea. But the defendant had already accepted the plea offer and there\n\nwere no ongoing negotiations. The only immediate question was whether to\n\nlet the attorney withdraw, and that decision could trigger a delay without\n\nany assurance about when the defendant would pick a new attorney or\n\ndecide on the plea.\n\n 5\n\f Appellate Case: 24-3138 Document: 69-1 Date Filed: 01/09/2026 Page: 6\n\n\n\n The court tried to explain the dilemma to the defendant, assuring him\n\ntwice that (1) the court didn’t know whether the plea offer was good or bad\n\nand (2) there wasn’t any pressure on him to accept the plea offer. With\n\nthese assurances, the court offered three options:\n\n 1. Proceed with the change of plea that day,\n\n 2. start the process of getting a new attorney, or\n\n 3. delay the proceedings for two days so that the defendant could\n think it over and consult with others before deciding what to\n do.\n\n The defendant insists that the court pressed him by asking what he\n\nwanted to do “right now.” The defendant apparently treats that question as\n\na demand to say “right now” whether he wanted to plead guilty. But this\n\ncharacterization is difficult to square with the district court’s offer to\n\npostpone the proceedings for two days.\n\n The district court needed to know at some point whether to let\n\ndefense counsel withdraw. And that decision would turn at least in part on\n\nthe defendant’s decision on how to plead. In these circumstances, we\n\nconclude that the court didn’t participate in plea negotiations by informing\n\nthe defendant that the government could revoke its offer before he decided\n\non his plea.\n\n\n\n\n 6\n\f Appellate Case: 24-3138 Document: 69-1 Date Filed: 01/09/2026 Page: 7\n\n\n\n3. The court didn’t prejudice the defendant by failing to inform him\n that he had a right to appointed counsel.\n\n The defendant also complains about what happened after he decided\n\nto accept the plea agreement. At that point, the court needed to take the\n\ndefendant’s guilty plea. Taking that plea required the court to inform the\n\ndefendant of specific rights, including his right to counsel and appointment\n\nof counsel if he couldn’t afford to hire his own attorney. Fed. R. Crim. P.\n\n11(b)(1)(D). The court told the defendant that he had the right to counsel,\n\nbut failed to add that this right included appointment of counsel upon a\n\nshowing of financial need.\n\n The defendant didn’t object, and the parties agree that the plain-error\n\nstandard applies. Under this standard, we must disregard even obvious\n\nerrors unless the defendant shows an effect on his substantial rights.\n\nUnited States v. Tignor, 981 F.3d 826, 828 (10th Cir. 2020). 2 In our view,\n\nthe defendant failed to show such an effect.\n\n The defendant argues that after his attorney had asked to withdraw,\n\nthe district court needlessly injected uncertainty about the availability of\n\nappointed counsel. But the court wasn’t taking the guilty plea at that point;\n\nthe explanation of rights was required only later—when the district court\n\ntook the guilty plea. Fed. R. Crim. P. 11(b)(1)(D). So prejudice turns on\n\n\n2\n A defendant must also show that the district court erred and that the\nerror was obvious. See p. 3, above. But the government concedes the\nexistence of an obvious error.\n 7\n\f Appellate Case: 24-3138 Document: 69-1 Date Filed: 01/09/2026 Page: 8\n\n\n\nthe possibility that the defendant would have pleaded not guilty if the court\n\nhad explained the right to appointed counsel when taking the plea. See\n\nUnited States v. Edgar, 348 F.3d 867, 872 (10th Cir. 2003) (stating that for\n\na different violation of Rule 11, prejudice turns on whether the defendant\n\nwould have pleaded not guilty if the district court had explained that the\n\nplea agreement waived the right to appeal or collaterally challenge the\n\nsentence).\n\n Three factors suggest that this possibility was remote:\n\n 1. The defendant had already confirmed that he would carry out\n the plea agreement.\n\n 2. The defendant had been told three times that he had the right to\n an attorney.\n\n 3. The defendant had earlier acknowledged that he understood his\n right to appointment of counsel if he couldn’t afford to hire an\n attorney.\n\n First, the defendant had already signed the plea agreement and stated\n\nthat he wanted to carry it out. The defendant attributed that statement to\n\nthe court’s admonition that the plea agreement might not remain available,\n\nbut we’ve rejected the defendant’s characterization of that admonition as\n\nimproper participation in the plea negotiations. See Part 2, above. Once the\n\ndefendant confirmed his willingness to carry out the plea agreement, he\n\nwould have had little reason to change his mind if he had been told that he\n\ncould get an appointed attorney. After all, appointment of another attorney\n\nwould require time for that attorney to get up to speed. And the\n\n 8\n\f Appellate Case: 24-3138 Document: 69-1 Date Filed: 01/09/2026 Page: 9\n\n\n\ngovernment had no obligation to continue offering the plea agreement\n\nwhile the defendant reconsidered his options. See p. 5, above.\n\n Second, the defendant was told three times that he had the right to an\n\nattorney throughout the proceedings. These disclosures came in the initial\n\nappearance, the plea agreement itself, and the colloquy preceding the\n\nguilty plea.\n\n Third, a magistrate judge had told the defendant at his initial\n\nappearance that he was entitled to appointed counsel if he couldn’t afford\n\nto hire an attorney, and the defendant acknowledged that he understood\n\nthat entitlement. Granted, that acknowledgment had taken place roughly\n\ntwo years earlier. But we have little reason to speculate that the defendant\n\nhad forgotten that right with the passage of time. See United States v.\n\nFerrel, 603 F.3d 758, 763 (10th Cir. 2010) (“[A] defendant who receives\n\nthe information omitted by the district court from other sources generally\n\ncannot demonstrate that he would not have pleaded guilty had the court\n\nalso so informed him.”); see also United States v. Umeh, 132 F.4th 573,\n\n583 (1st Cir. 2025) (stating that “defendants may ‘be presumed to recall\n\ninformation provided to them prior to the plea proceeding,’ such as at their\n\ninitial appearance” (quoting United States v. Vonn, 535 U.S. 55, 75\n\n(2002))).\n\n With the backdrop of these three factors, we consider the possibility\n\nthat the defendant might have changed his plea if he had been reminded of\n\n 9\n\f Appellate Case: 24-3138 Document: 69-1 Date Filed: 01/09/2026 Page: 10\n\n\n\nhis right to appointed counsel. The defendant has presented us little reason\n\nto consider this as more than a remote possibility, and he bears the burden\n\nof proof. See United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004)\n\n(stating that “a defendant who seeks reversal after a guilty plea, on the\n\nground that the district court committed plain error under Rule 11, must\n\nshow a reasonable probability that, but for the error, he would not have\n\nentered the plea”). We thus conclude that the defendant hasn’t shown an\n\neffect on his substantial rights.\n\n4. The defendant hasn’t shown cumulative prejudice.\n\n We can reverse when two or more plain errors combine to create\n\nprejudice. United States v. Starks, 34 F.4th 1142, 1169, 1175 (10th Cir.\n\n2022). Here, however, we have only one possible error: the district court’s\n\nfailure to tell the defendant that he had the right to appointed counsel. So\n\nthe defendant hasn’t shown multiple errors and can’t prevail on a theory of\n\ncumulative prejudice. See United States v. Joseph, 108 F.4th 1273, 1287\n\nn.5 (10th Cir. 2024) (“Because there was but a single error, there could be\n\nno cumulative error.”).\n\n5. Disposition\n\n We affirm the conviction because\n\n • the district court didn’t participate in plea negotiations and\n\n • the defendant hasn’t shown an effect on his substantial rights\n from the district court’s failure to remind him about his right to\n appointed counsel.\n 10", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11239027/", "author_raw": "BACHARACH, Circuit Judge."}]}	BACHARACH	MURPHY	ROSSMAN	1		{"BACHARACH": ", Circuit", "MURPHY": ", Circuit", "ROSSMAN": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10772442/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,773,230	Mukantagara v. Noem	2026-01-12	24-4071	U.S. Court of Appeals for the Tenth Circuit	{"judges": "Before TYMKOVICH, PHILLIPS, and McHUGH, Circuit Judges.", "parties": "", "opinions": [{"author": "PHILLIPS, Circuit Judge.", "type": "010combined", "text": "Appellate Case: 24-4071 Document: 54-1 Date Filed: 01/12/2026 Page: 1\n FILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS January 12, 2026\n Christopher M. Wolpert\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\nAGNES MUKANTAGARA;\nEBENEZER SHYAKA,\n\n Plaintiffs - Appellants,\n\nv. No. 24-4071\n\nKRISTI NOEM, Secretary, U.S.\nDepartment of Homeland Security;\nU.S. DEPARTMENT OF\nHOMELAND SECURITY; U.S.\nCITIZENSHIP AND IMMIGRATION\nSERVICES; MICHAEL CRABTREE,\nUSCIS Field Office Director, Salt\nLake City; ANDREW LAMBRECHT,\nUSCIS District Office Director,\nDenver; KIKA SCOTT, senior official\nperforming the duties of the Director,\n\n Defendants - Appellees.\n _________________________________\n\n Appeal from the United States District Court\n for the District of Utah\n (D.C. No. 2:20-CV-00897-RJS)\n _________________________________\n\nDaniel R. Black (Marti L. Jones with him on the briefs), of Stowell Crayk,\nPLLC, Millcreek, Utah, for Plaintiffs-Appellants.\n\nAneesa Ahmed, Trial Attorney (Yaakov Roth, Acting Assistant Attorney\nGeneral; August E. Flentje, Acting Director; William C. Silvis, Assistant\nDirector; Katelyn Masetta-Alvarez, Senior Litigation Counsel; and Joshua C.\nMcCroskey, Trial Attorney, with her on the brief), Department of Justice,\nWashington, D.C., for Defendants-Appellees.\n _________________________________\n\f Appellate Case: 24-4071 Document: 54-1 Date Filed: 01/12/2026 Page: 2\n\n\n\nBefore TYMKOVICH, PHILLIPS, and McHUGH, Circuit Judges.\n _________________________________\n\nPHILLIPS, Circuit Judge.\n _________________________________\n\n Agnes Mukantagara and her son Ebenezer Shyaka sued United States\n\nCitizenship and Immigration Services for terminating Mukantagara’s refugee\n\nstatus. The district court dismissed their suit for lack of subject-matter\n\njurisdiction. It relied on 8 U.S.C. § 1252(a)(2)(B)(ii), which bars courts from\n\nreviewing immigration agencies’ discretionary actions. It held that\n\n§ 1252(a)(2)(B)(ii) applied to 8 U.S.C. § 1157(c)(4), the Immigration and\n\nNationality Act’s provision for terminating refugee status.\n\n We hold that 8 U.S.C. § 1252(a)(2)(B)(ii) does not apply to Mukantagara\n\nand her son’s suit. Termination of refugee status under § 1157(c)(4) involves\n\ntwo steps. The first step is a nondiscretionary eligibility determination—\n\nwhether the noncitizen met the INA’s definition of “refugee” when admitted\n\ninto the country. The second step is an exercise of discretion—the agency\n\nchooses whether to terminate the eligible noncitizen’s status. Because the first\n\nstep is nondiscretionary, § 1252(a)(2)(B)(ii) does not apply. So Mukantagara\n\nand her son can sue USCIS over its nondiscretionary eligibility determination\n\nunder § 1157(c)(4). We remand to the district court for further proceedings.\n\n\n\n\n 2\n\f Appellate Case: 24-4071 Document: 54-1 Date Filed: 01/12/2026 Page: 3\n\n\n\n BACKGROUND\n\nI. Factual Background\n\n In 2005, USCIS admitted Agnes Mukantagara as a refugee and her son\n\nEbenezer Shyaka as her minor dependent. Two years later, USCIS paused\n\nMukantagara’s refugee status and revoked her travel documents. By 2008,\n\nUSCIS had begun investigating whether Mukantagara had participated in the\n\nRwandan genocide. In 2016, USCIS decided that she had.\n\n For this, USCIS terminated Mukantagara’s refugee status under 8 U.S.C.\n\n§ 1157(c)(4). That provision allows USCIS to terminate a person’s refugee\n\nstatus if it finds that the person did not meet the INA’s definition of “refugee”\n\nwhen admitted into the United States. Because USCIS found that Mukantagara\n\nhad participated in the genocide, she fell under the “persecutor bar” and thus\n\ndid not qualify as a refugee. App. vol. I at 81; see 8 U.S.C. § 1101(a)(42). The\n\ngovernment then placed Mukantagara and her son into removal proceedings.\n\n Mukantagara denied that she participated in the genocide. She claimed\n\nthat USCIS parroted false allegations from a politically motivated organization\n\nacting on behalf of Rwanda’s ruling party.\n\n In removal proceedings, the immigration court found Mukantagara\n\ncredible and granted her asylum application. It rejected the government’s\n\nallegations that Mukantagara had participated in the genocide.\n\n But the immigration court denied asylum to Mukantagara’s son, Shyaka.\n\nIt ruled that Shyaka neither independently qualified for asylum nor qualified as\n\n 3\n\f Appellate Case: 24-4071 Document: 54-1 Date Filed: 01/12/2026 Page: 4\n\n\n\nMukantagara’s dependent, even though he had qualified as her dependent in\n\n2005. Shyaka was then under age twenty-one. By the time Mukantagara applied\n\nfor asylum in removal proceedings more than ten years later, Shyaka had aged\n\nout of eligibility.\n\n The parties appealed to the Board of Immigration Appeals. The BIA\n\nremanded the immigration court’s decision granting asylum to Mukantagara and\n\naffirmed the decision denying asylum to Shyaka. On remand, the immigration\n\ncourt granted Mukantagara asylum again. For his part, Shyaka petitioned for\n\nreview before this Court. The BIA abated the government’s appeal of the\n\nimmigration court’s second grant of asylum to Mukantagara, and we abated\n\nShyaka’s petition for review, pending the outcome in this case.\n\nII. Procedural History\n\n Mukantagara and her son sued USCIS under the Administrative\n\nProcedure Act, challenging its decision to terminate Mukantagara’s refugee\n\nstatus. See Mukantagara v. DHS, 67 F.4th 1113, 1115 (10th Cir. 2023). The\n\ngovernment moved to dismiss for lack of subject-matter jurisdiction under\n\n8 U.S.C. § 1252(b)(9), see id., which channels judicial review of actions related\n\nto final removal orders to the courts of appeal, see generally Reno v. Am.-Arab\n\nAnti-Discrim. Comm., 525 U.S. 471, 483 (1999). The district court granted the\n\ngovernment’s motion. Mukantagara v. DHS, 67 F.4th at 1116. We reversed,\n\n\n\n\n 4\n\f Appellate Case: 24-4071 Document: 54-1 Date Filed: 01/12/2026 Page: 5\n\n\n\nholding that § 1252(b)(9) did not apply because USCIS’s decision to terminate\n\nrefugee status was not part of removal proceedings. Id.\n\n On remand, USCIS again moved to dismiss. Mukantagara v. Mayorkas,\n\n736 F. Supp. 3d 1117, 1122 (D. Utah 2024). USCIS made three arguments:\n\n(1) that 8 U.S.C. § 1252(a)(2)(B)(ii) deprived the district court of subject-\n\nmatter jurisdiction, (2) that Mukantagara could not challenge USCIS’s\n\ntermination of her refugee status under the APA because that statute bars\n\nreview of both discretionary and non-final agency actions, and (3) that three of\n\nMukantagara’s claims failed as a matter of law. Id. at 1122–23. The district\n\ncourt agreed with the government’s first argument. 1 Id. at 1125–26.\n\nMukantagara and her son appeal that order.\n\n JURISDICTION\n\n We have jurisdiction under 28 U.S.C. § 1291 because the district court\n\nentered judgment in favor of defendants. As for subject-matter jurisdiction,\n\n“[w]e have jurisdiction to determine our jurisdiction.” Schroeck v. Gonzales,\n\n429 F.3d 947, 950 (10th Cir. 2005).\n\n STANDARD OF REVIEW\n\n We review de novo a district court’s dismissal for lack of subject-matter\n\njurisdiction. Breeze Aviation Grp., Inc. v. Nat’l Mediation Bd., 104 F.4th 1211,\n\n1217 (10th Cir. 2024). The party seeking the court’s jurisdiction bears the\n\n\n 1\n We follow the parties’ request to avoid ruling on the arguments that the\ndistrict court did not address.\n 5\n\f Appellate Case: 24-4071 Document: 54-1 Date Filed: 01/12/2026 Page: 6\n\n\n\nburden of showing it exists. Green v. Napolitano, 627 F.3d 1341, 1344 (10th\n\nCir. 2010).\n\n DISCUSSION\n\n We must decide whether 8 U.S.C. § 1252(a)(2)(B)(ii) strips the district\n\ncourt of subject-matter jurisdiction to hear Mukantagara and her son’s suit.\n\n We first consider 8 U.S.C. § 1157(c)(4), the provision under which\n\nUSCIS terminated Mukantagara’s refugee status. As we interpret it, that\n\nprovision provides a two-step process. At step one, USCIS evaluates whether\n\nthe noncitizen meets the statute’s eligibility requirement of not being a\n\n“refugee” when admitted into the United States. 2 At step two, USCIS has\n\ndiscretion to terminate the refugee status of any noncitizen who is eligible at\n\nstep one. After that, we consider whether the INA’s jurisdiction-stripping\n\nprovision at 8 U.S.C. § 1252(a)(2)(B)(ii) covers a district court’s review of\n\nUSCIS’s eligibility determination at the above step one. We conclude that\n\n§ 1252(a)(2)(B)(ii) applies only to discretionary actions and that the eligibility\n\ndetermination under § 1157(c)(4)’s step one is not discretionary.\n\n As part of that analysis, we consider the government’s argument that\n\nPatel v. Garland, 596 U.S. 328 (2022), precludes the above-stated\n\ninterpretation of § 1252(a)(2)(B)(ii) and § 1157(c)(4). We note that Patel\n\n\n\n 2\n We use the term “noncitizen” in this opinion because Mukantagara uses it.\nFor our purposes, it is synonymous with the statutory term “alien.” See 8 U.S.C.\n§ 1101(a)(3); Nasrallah v. Barr, 590 U.S. 573, 578 n.2 (2020) (using “noncitizen”).\n 6\n\f Appellate Case: 24-4071 Document: 54-1 Date Filed: 01/12/2026 Page: 7\n\n\n\ninterprets § 1252(a)(2)(B)(i), a separate part of the INA’s jurisdiction-stripping\n\nprovision, which operates differently than § 1252(a)(2)(B)(ii).\n\n We then consider the government’s arguments that Bouarfa v. Mayorkas,\n\n604 U.S. 6 (2024), and recent circuit-court decisions show that\n\n§ 1252(a)(2)(B)(ii) precludes the district court from reviewing Mukantagara\n\nand her son’s suit. We conclude that those cases do not speak to the issue\n\npresented here.\n\nI. Section 1252(a)(2)(B)(ii) does not apply to § 1157(c)(4)’s\n nondiscretionary first step.\n\n The INA strips jurisdiction from courts to review “(i) any judgment\n\nregarding” five listed kinds of immigration relief and “(ii) any other decision or\n\naction [of USCIS] the authority for which is specified under this subchapter to\n\nbe in the discretion of [USCIS].” 8 U.S.C. § 1252(a)(2)(B). The district court\n\nruled that § 1252(a)(2)(B)(ii) covers determinations made under § 1157(c)(4).\n\nMukantagara v. Mayorkas, 736 F. Supp. 3d at 1126. But that sweeps in\n\n§ 1157(c)(4)’s nondiscretionary eligibility determination—whether the\n\nnoncitizen met the INA’s definition of “refugee” when admitted. So we hold\n\nthat § 1252(a)(2)(B)(ii) does not remove the district court’s subject-matter\n\njurisdiction to resolve Mukantagara and her son’s suit over USCIS’s eligibility\n\ndetermination.\n\n We first identify § 1157(c)(4)’s two-step process. At the first step,\n\nUSCIS determines whether a noncitizen’s refugee status is eligible for\n\n\n 7\n\f Appellate Case: 24-4071 Document: 54-1 Date Filed: 01/12/2026 Page: 8\n\n\n\ntermination. For this step, we must also ask whether the jurisdictional bar found\n\nat § 1252(a)(2)(B)(ii) defeats a district court’s ability to review USCIS’s\n\ndetermination. There we are guided by other courts’ opinions holding that\n\n§ 1252(a)(2)(B)(ii) does not preclude review of nondiscretionary eligibility\n\ndeterminations for two other provisions: Temporary Protected Status and\n\nrefugee adjustment of status. From that, we hold that § 1252(a)(2)(B)(ii) does\n\nnot apply here.\n\n A. Section 1157(c)(4) contains a nondiscretionary eligibility\n determination.\n\n Our first task is to interpret 8 U.S.C. § 1157(c)(4). We begin with the\n\nwords in the statute. Smith v. Bd. of Governors of Fed. Rsrv. Sys., 73 F.4th 815,\n\n820 (10th Cir. 2023). We ask if the language “has a plain and unambiguous\n\nmeaning with regard to the particular dispute.” Id. (citation omitted).\n\n Section 1157(c)(4) says:\n\n The refugee status of any alien (and of the spouse or child of the\n alien) may be terminated by the Attorney General pursuant to such\n regulations as the Attorney General may prescribe if the Attorney\n General determines that the alien was not in fact a refugee within the\n meaning of section 1101(a)(42) of this title at the time of the alien’s\n admission.\n\nThe district court ruled “the decision to terminate refugee status under\n\n§ 1157(c)(4)” is within USCIS’s discretion. Mukantagara v. Mayorkas, 736 F.\n\nSupp. 3d at 1126.\n\n We disagree in part. As we read § 1157(c)(4), it sets forth a two-step\n\nprocess. First, USCIS determines whether “the alien was not in fact a refugee\n\n 8\n\f Appellate Case: 24-4071 Document: 54-1 Date Filed: 01/12/2026 Page: 9\n\n\n\n[under 8 U.S.C. § 1101(a)(42)] at the time of the alien’s admission.” 8 U.S.C.\n\n§ 1157(c)(4). Second, if that is so, USCIS has discretion to terminate that\n\nperson’s refugee status. 3 Id.\n\n When the INA directs immigration agencies to assess “statutory\n\neligibility criteria” in a first step before exercising discretion in a second, the\n\nfirst step is “not discretionary.” Wilkinson v. Garland, 601 U.S. 209, 218\n\n(2024). Section 1157(c)(4)’s first step requires the agency to assess eligibility\n\nbefore deciding to terminate refugee status. See Maiwand v. Gonzales, 501 F.3d\n\n101, 106 (2d Cir. 2007) (“Refugee status may be terminated only if . . . [the]\n\nalien did not qualify as a refugee at the time of entry.” (emphasis added));\n\nKaganovich v. Gonzales, 470 F.3d 894, 898 (9th Cir. 2006) (similar);\n\nRomanishyn v. Att’y Gen. of U.S., 455 F.3d 175, 181–82 (3d Cir. 2006)\n\n(similar). Section 1157(c)(4)’s first step is nondiscretionary.\n\n The government argues that all determinations under § 1157(c)(4) are\n\ndiscretionary because the provision uses several words that suggest discretion:\n\n“may prescribe,” “may be terminated,” and “if the [agency] determines.” It also\n\nnotes that the provision does not contain words like “shall.”\n\n\n\n\n 3\n USCIS has removed its discretion at the second step by promulgating 8\nC.F.R. § 207.9, which states that refugee status “will be terminated” if the\nagency determines that the noncitizen is not eligible on the first step. This does\nnot affect our analysis because 8 U.S.C. § 1252(a)(2)(B)(ii) applies “only when\nthe statute itself” specifies that an action is discretionary. See Kucana v.\nHolder, 558 U.S. 233, 243–45 (2010).\n 9\n\f Appellate Case: 24-4071 Document: 54-1 Date Filed: 01/12/2026 Page: 10\n\n\n\n But we read sentences “as a whole.” See Harbison v. Bell, 556 U.S. 180,\n\n196 (2009) (Roberts, C.J., concurring). The first two phrases don’t relate to the\n\nfirst-step determination. “[M]ay prescribe” refers to the agency’s power to pass\n\nregulations relating to the statute. 8 U.S.C. § 1157(c)(4). “May be terminated”\n\ngives the agency power to decline to terminate status at step two. Id.\n\n And we reject that the words “if the [agency] determines” reveal\n\ndiscretion. Even the government concedes that when terminating refugee status,\n\nUSCIS “must ‘choose’ or ‘decide’” the eligibility question. See Resp. Br. at 19\n\n(emphasis added). It has not argued that USCIS could skip step one when\n\ndeciding to terminate a person’s refugee status. So step one is a\n\nnondiscretionary eligibility determination and a threshold requirement before\n\nmoving to step two.\n\n B. Section 1252(a)(2)(B)(ii) does not strip jurisdiction for district\n courts to review eligibility determinations.\n\n Next, we decide whether the INA’s jurisdiction-stripping provision at\n\n§ 1252(a)(2)(B)(ii) applies at the nondiscretionary first step of § 1157(c)(4).\n\nWe hold that it does not, based on persuasive precedent interpreting similar\n\nprovisions in the INA—those that govern Temporary Protected Status (TPS), 8\n\nU.S.C. § 1254a, and adjustment of status for refugees, id. § 1159(b).\n\n 1. The Two-Step Process for Granting TPS\n\n The INA’s two-step process for adjudicating TPS goes like this: First,\n\nUSCIS determines whether the applicant meets the requirements, such as\n\n\n 10\n\f Appellate Case: 24-4071 Document: 54-1 Date Filed: 01/12/2026 Page: 11\n\n\n\nphysical presence in the United States and admissibility. See 8 U.S.C.\n\n§ 1254a(c)(1). Second, if so, USCIS may exercise discretion by granting the\n\napplication. Id. § 1254a(a)(1)(A).\n\n In Mejia Rodriguez v. DHS, the Eleventh Circuit held that district courts\n\nhave jurisdiction to review the first step of USCIS’s TPS decisions. 562 F.3d\n\n1137, 1146 (11th Cir. 2009). Mejia Rodriguez was denied TPS because USCIS\n\nconcluded that he didn’t meet the eligibility requirements. Id. at 1141, 1144. So\n\nhe sued USCIS under the APA, and the district court dismissed for lack of\n\njurisdiction under § 1252(a)(2)(B)(ii). See id. at 1141. The Eleventh Circuit\n\nreversed, holding that § 1252(a)(2)(B)(ii) did not bar district courts from\n\nreviewing USCIS’s “non-discretionary, statutory eligibility decisions.” Id. at\n\n1144–45.\n\n 2. The Two-Step Process for Refugee Adjustment of Status\n\n The same two-step process applies to the provision allowing refugees to\n\nbecome permanent residents. First, USCIS determines whether an applicant\n\nmeets the statute’s requirements, such as physical presence in the United States\n\nand admissibility. 8 U.S.C. § 1159(b)(2), (5). Second, USCIS may exercise\n\ndiscretion by granting the refugee’s application. Id. § 1159(b).\n\n In Hosseini v. Johnson, the Sixth Circuit held that the first step is\n\nreviewable in district court. 826 F.3d 354, 358–59 (6th Cir. 2016). USCIS\n\ndenied Hosseini’s application to adjust status because it found that he was\n\ninadmissible. Id. at 357, 359. Hosseini sued USCIS under the APA, challenging\n\n 11\n\f Appellate Case: 24-4071 Document: 54-1 Date Filed: 01/12/2026 Page: 12\n\n\n\nthis determination. Id. at 357. The district court asserted jurisdiction over the\n\nclaim despite § 1252(a)(2)(B)(ii), but it dismissed the claim on a separate APA-\n\nrelated ground. Id.\n\n The Sixth Circuit affirmed that § 1252(a)(2)(B)(ii) does not bar district\n\ncourts from reviewing USCIS’s eligibility determination. Id. at 358–59. It\n\nreasoned that “eligibility determinations” that lead to discretionary decisions\n\nare “non-discretionary” and thus “subject to judicial review.” Id. at 359. 4\n\n 3. The Two-Step Process for Refugee-Status Termination\n\n We now return to Mukantagara’s suit. First, USCIS determined that\n\nMukantagara “was not in fact a refugee” under § 1101(a)(42) when she was\n\nadmitted to the United States. See 8 U.S.C. § 1157(c)(4). Second, USCIS\n\nterminated Mukantagara’s and her dependents’ refugee status as required by its\n\nregulation. See 8 C.F.R. § 207.9. Mukantagara sued USCIS to challenge its\n\ndetermination that she was statutorily subject to termination. Mejia Rodriguez\n\nand Hosseini sued USCIS to challenge its determinations that they were not\n\nstatutorily eligible for benefits. For the same reason § 1252(a)(2)(B)(ii) did not\n\npreclude jurisdiction in those two cases, it does not preclude jurisdiction over\n\nMukantagara’s challenge.\n\n\n\n 4\n In Abuzeid v. Mayorkas, the D.C. Circuit suggested that Patel v.\nGarland, 596 U.S. 328 (2022), abrogated Hosseini. 62 F.4th 578, 584 n.4 (D.C.\nCir. 2023). We disagree for reasons explained below. Briefly, Hosseini\ninterpreted § 1252(a)(2)(B)(ii), unlike Patel, which interpreted\n§ 1252(a)(2)(B)(i), see 596 U.S. at 336–37, 344–45.\n 12\n\f Appellate Case: 24-4071 Document: 54-1 Date Filed: 01/12/2026 Page: 13\n\n\n\nII. Patel does not apply to § 1252(a)(2)(B)(ii).\n\n The government argues that Patel v. Garland prevents district courts\n\nfrom reviewing USCIS’s first-step decisions. It argues that § 1252(a)(2)(B)(ii)\n\nprecludes review of a nondiscretionary first step when the INA gives the\n\nagency discretion for a later step of the same procedure. But Patel interprets a\n\nseparate provision of the INA, § 1252(a)(2)(B)(i).\n\n In Patel, the Supreme Court held that § 1252(a)(2)(B)(i) bars review of\n\nan immigration court’s factual findings regarding non-refugee adjustment of\n\nstatus in removal proceedings. 596 U.S. at 347. Patel had applied for non-\n\nrefugee adjustment of status in removal proceedings. Id. at 334. The\n\nimmigration court concluded that Patel was ineligible to adjust because he had\n\nlied about his immigration status by marking that he was a citizen on a form for\n\na driver’s license. Id. at 334–35. Patel argued that he had made an honest\n\nmistake. Id. But the immigration court found that Patel was not credible. Id. So\n\nit denied Patel’s application to adjust status, then ordered him removed. Id.\n\n Patel appealed the immigration court’s ruling to the Eleventh Circuit.\n\nThat court held that § 1252(a)(2)(B)(i) removed its jurisdiction to review the\n\nimmigration court’s factual findings. Patel v. Att’y Gen. of U.S., 971 F.3d 1258,\n\n1272–73, 1283 (11th Cir. 2020) (en banc). Section 1252(a)(2)(B)(i) bars review\n\nof “any judgment regarding the granting of relief” for five listed kinds of relief,\n\nincluding that relief Patel sought: non-refugee adjustment of status. See id. at\n\n1273. The Eleventh Circuit held that the immigration court’s credibility finding\n\n 13\n\f Appellate Case: 24-4071 Document: 54-1 Date Filed: 01/12/2026 Page: 14\n\n\n\nwas a “judgment regarding the granting of relief.” Id. The Supreme Court\n\naffirmed. 596 U.S. at 331.\n\n Patel does not shed light on § 1252(a)(2)(B)(ii) because its holding rests\n\non words particular to § 1252(a)(2)(B)(i)—“any judgment” and “regarding the\n\ngranting of relief.” 596 U.S. at 337–39; see Alzaben v. Garland, 66 F.4th 1, 6\n\n(1st Cir. 2023) (Patel’s interpretation of “any judgment” in § 1252(a)(2)(B)(i)\n\n“does not directly address the scope” of § 1252(a)(2)(B)(ii)). The Court\n\ninterpreted “any judgment” to mean “judgments of whatever kind . . . not just\n\ndiscretionary judgments or the last-in-time judgments.” Patel, 596 U.S. at 338–\n\n39 (citation modified). It interpreted the phrase “regarding the granting of\n\nrelief” as “broadening” § 1252(a)(2)(B)(i) to cover eligibility determinations.\n\nId. at 338–39 (citation omitted).\n\n Instead of “regarding the granting of relief,” § 1252(a)(2)(B)(ii) uses the\n\nphrase “specified . . . to be in the [agency’s] discretion.” Patel held that\n\n“regarding” broadens § 1252(a)(2)(B)(i) to reach judgments “relating to the\n\ngranting of relief.” 596 U.S. at 339. The word “specified” narrows\n\n§ 1252(a)(2)(B)(ii) to reach only actions and decisions involving discretion.\n\n The government argues that both § 1252(a)(2)(B) subsections travel\n\ntogether. It points to Kucana v. Holder, which mentions that § 1252(a)(2)(B)(i)\n\n“is instructive in determining the meaning of the [§ 1252(a)(2)(B)(ii)]\n\ncatchall.” 558 U.S. 233, 247 (2010). But the Court has cautioned that when two\n\nneighboring provisions “contain distinct language,” those provisions don’t\n\n 14\n\f Appellate Case: 24-4071 Document: 54-1 Date Filed: 01/12/2026 Page: 15\n\n\n\n“necessarily travel together.” See Slack Techs., LLC v. Pirani, 598 U.S. 759,\n\n770 n.3 (2023). And even after Patel, the Eleventh Circuit has reiterated that\n\ndistrict courts may review “a non-discretionary determination that is a statutory\n\npredicate to [an agency’s] exercise of discretion.” See Bouarfa v. Sec’y DHS,\n\n75 F.4th 1157, 1163 (11th Cir. 2023) (citing Mejia Rodriguez, 562 F.3d at\n\n1143).\n\nIII. Bouarfa does not apply to § 1157(c)(4).\n\n The government argues that the Supreme Court’s decision in Bouarfa\n\nrequires holding that § 1252(a)(2)(B)(ii) bars review here.\n\n In Bouarfa, the Court held that § 1252(a)(2)(B)(ii) bars a district court\n\nfrom reviewing USCIS’s decision to revoke a visa under § 1155. 604 U.S. at 9.\n\nSection 1155 says that USCIS “may, at any time, for what [it] deems to be good\n\nand sufficient cause” revoke an approved visa petition. The Court called this\n\nlanguage “a quintessential grant of discretion.” Bouarfa, 604 U.S. at 13; see\n\nalso Hamilton v. Gonzales, 485 F.3d 564, 568 (10th Cir. 2007) (holding the\n\nsame); Green, 627 F.3d at 1343 (same).\n\n But Bouarfa distinguished § 1155 from provisions in the INA with first-\n\nstep eligibility determinations. The Court pointed out that § 1155 imposes “no\n\nconditions that the [agency] must satisfy” before revoking an approved visa.\n\nBouarfa, 604 U.S. at 14. It distinguished non-refugee adjustment of status—the\n\nprocedure at issue in Patel—from § 1155, which “has no threshold\n\nrequirements.” Id. at 19. And the Court declined to “resolve whether\n\n 15\n\f Appellate Case: 24-4071 Document: 54-1 Date Filed: 01/12/2026 Page: 16\n\n\n\n§ 1252(a)(2)(B)(ii) strips . . . jurisdiction to review threshold determinations.”\n\nId. As explained above, the eligibility determination in § 1157(c)(4) is a\n\nthreshold requirement, so Bouarfa does not apply.\n\nIV. The government’s other cases do not apply.\n\n The government also cites recent cases applying § 1252(a)(2)(B)(ii) in\n\narguing that it should apply here. These cases concern USCIS’s discretion to\n\nimplement regulations for processing adjustment-of-status applications. See\n\nGeda v. Dir. USCIS, 126 F.4th 835, 843 (3d Cir. 2025); Cheejati v. Blinken,\n\n106 F.4th 388, 394 (5th Cir. 2024); Thigulla v. Jaddou, 94 F.4th 770, 775 (8th\n\nCir. 2024). Geda even distinguishes USCIS’s discretion to administer that\n\nprocess from USCIS’s obligation to assess eligibility requirements. 126 F.4th at\n\n843. These cases don’t address eligibility determinations, so they don’t apply\n\nhere.\n\n * * *\n\n We hold that terminating refugee status under 8 U.S.C. § 1157(c)(4) is a\n\ntwo-step process, and the first step is nondiscretionary. Because the first step is\n\nnondiscretionary, § 1252(a)(2)(B)(ii) does not bar review of USCIS’s finding\n\nthat a noncitizen did not meet the definition of refugee at time of admission\n\nunder § 1157(c)(4). We do not rule on the arguments that the district court\n\ndeclined to consider.\n\n CONCLUSION\n\n We reverse the district court’s order and remand for further proceedings.\n\n 16", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11239815/", "author_raw": "PHILLIPS, Circuit Judge."}]}	TYMKOVICH	PHILLIPS	MCHUGH	1		{"TYMKOVICH": ", Circuit", "PHILLIPS": ", Circuit", "McHUGH": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10773230/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,773,277	United States v. Ruiz	2026-01-12	24-2128	U.S. Court of Appeals for the Tenth Circuit	{"judges": "Before HARTZ, TYMKOVICH, and McHUGH, Circuit Judges.", "parties": "", "opinions": [{"author": "TYMKOVICH, Circuit Judge.", "type": "010combined", "text": "Appellate Case: 24-2128 Document: 51-1 Date Filed: 01/12/2026 Page: 1\n FILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS January 12, 2026\n Christopher M. Wolpert\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n UNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v. No. 24-2128\n\n JOEL RUIZ,\n\n Defendant - Appellant.\n _________________________________\n\n Appeal from the United States District Court\n for the District of New Mexico\n (D.C. No. 1:22-CR-00365-DHU-1)\n _________________________________\n\nViolet N. D. Edelman, Assistant Federal Public Defender, Office of Public Defender,\nAlbuquerque, New Mexico, for Defendant-Appellant.\n\nCaitlin L. Dillon, Assistant United States Attorney (Ryan Ellison, United States Attorney,\nwith her on the brief), Office of United States Attorney, District of New Mexico,\nAlbuquerque, New Mexico, for Plaintiff-Appellee.\n _________________________________\n\nBefore HARTZ, TYMKOVICH, and McHUGH, Circuit Judges.\n _________________________________\n\nTYMKOVICH, Circuit Judge.\n _________________________________\n\n Joel Ruiz was convicted of sexual abuse of a minor under twelve years old and\n\nsentenced to thirty years of imprisonment. He appeals his conviction based on three\n\ngrounds: (1) his indictment should have been dismissed for vagueness; (2) the\n\f Appellate Case: 24-2128 Document: 51-1 Date Filed: 01/12/2026 Page: 2\n\n\n\ngovernment failed to establish his non-Indian status; and (3) the jury was improperly\n\ninstructed with a modified Allen instruction.\n\n Exercising jurisdiction under 28 U.S.C. § 1291, we VACATE the conviction\n\nand REMAND. We agree that the government failed to produce sufficient evidence\n\nto prove Ruiz’s non-Indian status beyond a reasonable doubt. Because proof of a\n\ndefendant’s non-Indian status is an essential element of the convicted crime in this\n\ncircuit, Ruiz’s conviction fails. We do not reach Ruiz’s other arguments.\n\n I. Background 1\n\n A pair of cousins reported that Ruiz lured them into his trailer with candy and\n\nabused them by touching their genitals when Jane Doe 1 was six or seven years old,\n\nand when Jane Doe 2 was three or four years old. Based on his conduct, Ruiz was\n\ncharged with two counts of engaging in a sexual act with a minor under the age of\n\ntwelve within an aggregate seven-year period, in violation of 18 U.S.C. §§ 1152,\n\n2241(c), and 2246(2)(D). The indictment alleged that the victims were Indian, and\n\nthat Ruiz was a non-Indian.\n\n The case proceeded to trial. To prove that Ruiz was a non-Indian, the\n\ngovernment presented two witnesses who testified that they concluded Ruiz was a\n\nnon-Indian based on their respective review of certain databases and relevant\n\ndocuments. At the conclusion of the government’s case, Ruiz moved for judgment of\n\n\n\n 1\n We resolve this appeal based on the government’s failure to produce\nsufficient evidence of Ruiz’s non-Indian status, and thus we provide only the relevant\nfacts and history as to that issue.\n 2\n\f Appellate Case: 24-2128 Document: 51-1 Date Filed: 01/12/2026 Page: 3\n\n\n\nacquittal under Federal Rule of Criminal Procedure 29 for failure to prove his\n\nnon-Indian status. The court denied the motion based on witness testimonies at trial.\n\n Ultimately, Ruiz was found guilty of only one instance of engaging in a sexual\n\nact with a minor under the age of twelve. He was sentenced to thirty years of\n\nimprisonment, followed by ten years of supervised release.\n\n II. Discussion\n\n Ruiz contends that the evidence produced at trial proving his non-Indian status\n\nis insufficient as a matter of law.\n\n “We review de novo the district court’s denial of a motion for a judgment of\n\nacquittal.” United States v. Ramirez, 348 F.3d 1175, 1180 (10th Cir. 2003) (citing\n\nUnited States v. Bailey, 327 F.3d 1131, 1140 (10th Cir. 2003)). “We view all the\n\nevidence in the light most favorable to the government” and “determine whether\n\nthere is evidence from which a jury could find the defendant guilty beyond a\n\nreasonable doubt.” Id. (citation modified). But we do not “weigh the evidence or\n\nconsider the credibility of the witnesses in making our determination.” Id. (citation\n\nmodified).\n\n If evidence of a defendant’s non-Indian status is insufficient to sustain a\n\nconviction, a judgment of acquittal must be entered. See Fed. R. Crim. P. 29(a);\n\nUnited States v. Simpkins, 90 F.4th 1312, 1315 (10th Cir. 2024) (“[W]hen faced with\n\na sufficiency challenge, a court asks only whether, after viewing the evidence in the\n\nlight most favorable to the prosecution, any rational trier of fact could have found the\n\nessential elements of the crime beyond a reasonable doubt.” (citation modified)).\n 3\n\f Appellate Case: 24-2128 Document: 51-1 Date Filed: 01/12/2026 Page: 4\n\n\n\n Legal Standard: Proving Non-Indian Status\n\n “To convict [Ruiz] under § 1152, the government needed to prove, among\n\nother things, that (1) he is not an Indian and (2) his victims are Indians.” Simpkins,\n\n90 F.4th at 1315 (citation omitted).\n\n “Although the statute does not define ‘Indian,’ we have held that persons\n\nqualify as Indians under § 1152” if: (1) they have “some Indian blood”; 2 and (2) are\n\n“recognized as an Indian by a tribe or by the federal government.” Id. at 1318\n\n(citation modified). Conversely, the government can prove that a person is a\n\nnon-Indian by showing that he fails either prong. Id. (citation omitted).\n\n “Our cases applying this test have approved a totality-of-the-evidence\n\napproach to determining Indian status, although certain types of evidence, by\n\nthemselves, may not be sufficient.” United States v. Diaz, 679 F.3d 1183, 1187 (10th\n\nCir. 2012); see United States v. Hatley, 153 F.4th 1112, 1123–24 (10th Cir. 2025)\n\n(noting that a Certificate of Degree of Indian Blood or tribal documents that fall\n\nunder an exception to the bar on hearsay may suffice). A witness may testify about a\n\nvictim or defendant’s Indian or non-Indian status if he has personal knowledge of the\n\nmatter. United States v. Walker, 85 F.4th 973, 980–81 (10th Cir. 2023).\n\n\n\n\n 2\n An individual has “some Indian blood” if he has “Indian ancestors.” United\nStates v. Hebert, 159 F.4th 777, 780 (10th Cir. 2025) (citation omitted). “Evidence\nof a parent, grandparent, or great-grandparent who is clearly identified as an Indian is\ngenerally sufficient to satisfy this prong.” Id. (citation modified).\n 4\n\f Appellate Case: 24-2128 Document: 51-1 Date Filed: 01/12/2026 Page: 5\n\n\n\n Sufficiency of the Evidence\n\n At Ruiz’s trial, the government did not introduce any DNA or genealogical\n\nevidence as to his non-Indian blood. Although there is evidence that Ruiz was born\n\nin Mexico, evidence about a defendant’s birthplace does not establish that he has no\n\nIndian ancestors. Cf. Hebert, 159 F.4th at 787 (“[A]lthough [defendant] identified as\n\npart-Mexican, white, and Latino/Hispanic, that also does not show he has no Indian\n\nancestors.”).\n\n Instead, the government focused on proving that Ruiz is not recognized as an\n\nIndian by a tribe or the federal government. We have identified several nonexclusive\n\nfactors in addressing this inquiry: “(1) enrollment in a tribe, (2) provision of\n\ngovernment assistance reserved only for Indians, (3) enjoying the benefits of tribal\n\naffiliation, and (4) social recognition as an Indian through living on a reservation and\n\nparticipating in Indian social life.” Id. at 780 (citation omitted). But as we explain,\n\nthe testimonies of the government’s two witnesses were insufficient to conclude Ruiz\n\nis a non-Indian beyond a reasonable doubt. 3\n\n\n\n\n 3\n We recently clarified that when proving a defendant’s Indian status, the\ngovernment must prove that the defendant was an Indian “at the time of the offense.”\nHatley, 153 F.4th at 1123. We do not reach whether the government must similarly\nprove a defendant’s non-Indian status at the time of the offense because our\nconclusion would be the same either way.\n 5\n\f Appellate Case: 24-2128 Document: 51-1 Date Filed: 01/12/2026 Page: 6\n\n\n\n The government first called Jicarilla Apache criminal investigator Rome\n\nWager 4 as a witness. Investigator Wager testified that he lived on the Jicarilla\n\nApache Reservation for 27 years, and that he is an enrolled member of the tribe. He\n\nstated he was familiar with Ruiz from seeing him on the Jicarilla Apache Nation’s\n\nreservation. R., Vol. V at 183–84. Investigator Wager also testified that Ruiz\n\nresided on the reservation. R., Vol. V at 185, 188, 195. When asked whether he\n\nreached out to any tribes to determine if federal jurisdiction exists, Investigator\n\nWager said he contacted the Caddo Nation of Oklahoma (where the two minor\n\nvictims are enrolled) to determine Ruiz’s potential Indian status. Investigator Wager\n\nalso testified that he reviewed the National Crime Information Center database and\n\nthe Interstate Identification Index database, and learned that Ruiz was born in\n\nMexico. Investigator Wager stated that he did not find any information that indicated\n\nRuiz was an Indian. R., Vol. V at 194.\n\n The government then called FBI Special Agent Piere Robert Himel. 5 Special\n\nAgent Himel testified that to confirm an individual is non-Indian, the individual is\n\n“ask[ed] whether they’re enrolled members of a tribe.” R., Vol. V at 375. He stated:\n\n\n\n 4\n Investigator Wager testified that he had been a criminal investigator since\nJuly 2021 and was previously a highway safety officer and a patrol officer. In total,\nhe had been with the Jicarilla Apache Police Department for 13 years.\n 5\n Special Agent Himel testified that prior to joining the FBI, he was a police\nofficer for the Bureau of Indian Affairs and served on the Standing Rock Reservation\nin North and South Dakota. Before that, he was a corrections officer with the Bureau\nof Indian Affairs on the Hopi Reservation. He testified that he was familiar with\ncrimes in Indian Country and with relevant jurisdictional issues.\n 6\n\f Appellate Case: 24-2128 Document: 51-1 Date Filed: 01/12/2026 Page: 7\n\n\n\n“we can query their name with various tribes, and if they’re not on the enrollment\n\nrecords, they wouldn’t be a member of that tribe.” R., Vol. V at 375. He did not\n\nmake clear whether he conducted this process for Ruiz, however. When questioned,\n\nSpecial Agent Himel testified that he concluded Ruiz is a non-Indian based on:\n\n(1) his review of documents that Ruiz signed under penalty of perjury, (2) his review\n\nof Ruiz’s “identifiers” and photographs, and (3) in part, the fact that Ruiz’s\n\nbirthplace was Mexico. [R., Vol. V at 385–86, 390, 392.] Ruiz’s documents did not\n\naffirmatively indicate his tribal status.\n\n To begin, the witnesses’ relationship and personal knowledge of Ruiz rest on a\n\n“thin foundation.” Hebert, 159 F.4th at 787. Investigator Wager testified that he was\n\nfamiliar with Ruiz based on his experience passing “Ruiz on the road” in the\n\ncommunity, but conceded that he “never stopped him.” R., Vol. V at 183–84. He\n\nalso indicated that he could identify Ruiz’s specific vehicle and testified that he saw\n\nRuiz’s vehicle at a residence on the reservation, and thus concluded that Ruiz lived\n\nthere. But seeing Ruiz’s vehicle at a specific address, or evidence that Ruiz lived on\n\nthe reservation, does not mean Ruiz is or is not affiliated or socially recognized as an\n\nIndian. Importantly, neither witness testified that they knew Ruiz personally, or that\n\nthey knew that Ruiz was a non-Indian. See Hebert, 159 F.4th at 788 (finding the\n\nwitness’s “equivocal testimony and the scant evidence about their relationship does\n\nnot support a reasonable inference that [the witness] actually knew [defendant’s]\n\nIndian status”). Nor did they testify that Ruiz ever mentioned that he was a\n\n\n\n 7\n\f Appellate Case: 24-2128 Document: 51-1 Date Filed: 01/12/2026 Page: 8\n\n\n\nnon-Indian. And there is no showing that the government attempted to contact a\n\nfamily member to gather Ruiz’s ancestry or recognition evidence. Id. at 789.\n\n Second, Investigator Wager testified that he contacted only one tribe to check\n\nRuiz’s potential enrollment status. Special Agent Himel did not indicate that he\n\ncontacted any tribes. Although we have stated that the government does not have a\n\nduty “to bring forth tribal officials to disprove [an individual] was a member of their\n\ntribes,” Diaz, 679 F.3d at 1188, we have also recently held that “merely contacting\n\nfive tribes without results proved nothing” about a defendant’s non-Indian status.\n\nHebert, 159 F.4th at 789 & n.10. Here, only contacting the tribe that the minor\n\nvictims were enrolled in fails to provide sufficient evidence to prove Ruiz’s\n\nnon-Indian status.\n\n Third, Investigator Wager concluded that Ruiz was a non-Indian based on his\n\nreview of national databases that did not indicate otherwise. But as Special Agent\n\nHimel noted in his testimony, law enforcement databases do not have information on\n\nwhether an individual is an enrolled member of a tribe. R., Vol. V at 375 (“[T]hey\n\nmay on occasion, but, generally, [Indian status is] something you have to ask the\n\nindividual about and then follow-up with the local enrollment office. . . . If we don’t\n\nfind anything, they wouldn’t be considered a member of a federally-recognized\n\ntribe.”). Accordingly, Investigator Wager’s conclusion that Ruiz is a non-Indian\n\nbased on his review of such databases, or any adjacent archive for that matter, falls\n\nshort of proving this essential element.\n\n\n\n 8\n\f Appellate Case: 24-2128 Document: 51-1 Date Filed: 01/12/2026 Page: 9\n\n\n\n Finally, both witnesses concluded Ruiz was a non-Indian at least partly\n\nbecause Ruiz was born in Mexico. But as we established in Hebert, “[t]he definition\n\nof a recognized Indian . . . —tribal or federal government recognition—does not turn\n\non race.” 159 F.4th at 789 (“And even if relevant, the race evidence tells little\n\nbecause . . . someone can be both Hispanic and Native American.”).\n\n In short, even in the light most favorable to the government, a rational jury\n\nwould need to speculate to conclude that Ruiz is a non-Indian based on the evidence\n\nthe government provided. The witnesses’ respective experience working with and in\n\ntribal communities, although extensive, cannot prove Ruiz’s non-Indian status when\n\ntheir conclusions are likewise predicated on mere inferences.\n\n Hence, we must vacate Ruiz’s conviction and remand because the government\n\nfailed to set forth sufficient evidence to prove, beyond a reasonable doubt, a\n\ndefendant’s non-Indian status under 18 U.S.C. § 1152.\n\n Proving a Defendant’s Non-Indian Status in the Tenth Circuit\n\n We acknowledge that in reaching this conclusion, the government has a\n\ndifficult and potentially impractical task “to prove a negative.” Hebert, 159 F.4th at\n\n786 (citations omitted). That is especially so when the government must do so\n\nbeyond a reasonable doubt and “when the information is more likely in possession of\n\nthe defendant.” Id. (citations omitted).\n\n Our current caselaw originates from United States v. Prentiss, 256 F.3d 971\n\n(10th Cir. 2001), where our circuit concluded that the Indian and non-Indian statuses\n\nof a victim and defendant are essential elements of a crime under § 1152 that must be\n\n 9\n\f Appellate Case: 24-2128 Document: 51-1 Date Filed: 01/12/2026 Page: 10\n\n\n\nalleged in an indictment. In recognizing that § 1152 “does not expressly allocate the\n\nburden of alleging and proving the statuses of the victim and the defendant,” our\n\ncircuit, a bit amorphously, concluded that because the status of a victim is an\n\nessential element, the status of a defendant must be also. Prentiss, 256 F.3d at 975–\n\n78 (“[W]e are not persuaded that the status of the defendant should be treated\n\ndifferently from the status of the victim . . . [because] the status of the defendant may\n\nbe just as significant in determining whether a federal court has jurisdiction . . . .”).\n\n But an alternative interpretation—that proof of defendant’s non-Indian status\n\nshould be an affirmative defense—resolves the pickle, and more. First, it’s logical.\n\nIt is nonsensical to have convictions vacated and overturned because, despite putting\n\nforth convincing evidence of a defendant’s offense conduct, the government did not\n\nhave ample evidence in its arsenal “to prove a negative.” Our rule, perversely, turns\n\nthe table on victims when the defendant most likely holds the evidence that proves\n\nhis status. See United States v. Hester, 719 F.2d 1041, 1043 (9th Cir. 1983) (“It is far\n\nmore manageable for the defendant to shoulder the burden of producing evidence that\n\nhe is a member of a federally recognized tribe than it is for the [g]overnment to\n\nproduce evidence that he is not a member of any one of the hundreds of such\n\ntribes.”).\n\n\n\n\n 10\n\f Appellate Case: 24-2128 Document: 51-1 Date Filed: 01/12/2026 Page: 11\n\n\n\n The resolution is further supported by the text of 18 U.S.C. § 1152, also\n\nknown as the Indian Country Crimes Act or the General Crimes Act. 6 The provision\n\nenables the government to prosecute crimes committed in Indian country by\n\nnon-Indians against Indians. It lists three exceptions, however, one of which is that\n\nbroad coverage does “not extend to offenses committed by one Indian against the\n\nperson or property of another Indian.” § 1152. Relatedly, the Supreme Court has\n\ndirected lower courts that\n\n an indictment . . . founded on a general provision defining\n the elements of an offense, or of a right conferred, need not\n negative the matter of an exception made by a proviso . . . ,\n whether in the same section or elsewhere, and that it is\n incumbent on one who relies on such an exception to set it\n up and establish it.”\n\nMcKelvey v. United States, 260 U.S. 353, 357 (1922) (emphases added) (citations\n\nomitted); see also Cunningham v. Cornell University, 604 U.S. 693, 707 (2025)\n\n(noting in a civil case that “even in the criminal context, it remains a settled rule that\n\n\n 6\n 18 U.S.C. § 1152 provides:\n\n Except as otherwise expressly provided by law, the\n general laws of the United States as to the punishment of\n offenses committed in any place within the sole and\n exclusive jurisdiction of the United States, except the\n District of Columbia, shall extend to the Indian country.\n\n This section shall not extend to offenses committed\n by one Indian against the person or property of another\n Indian, nor to any Indian committing any offense in the\n Indian country who has been punished by the local law of\n the tribe, or to any case where, by treaty stipulations, the\n exclusive jurisdiction over such offenses is or may be\n secured to the Indian tribes respectively.\n\n 11\n\f Appellate Case: 24-2128 Document: 51-1 Date Filed: 01/12/2026 Page: 12\n\n\n\nan indictment or other pleading . . . need not negative the matter of an exception\n\nmade by a proviso or other distinct clause” (citation modified)). Thus, a natural\n\ninterpretation is that, like affirmative defenses, the enumerated exception should be\n\nraised first by the defendant; the government would then be required to provide any\n\nevidence proving otherwise. 7\n\n Indeed, even at the time Prentiss was decided, the Ninth Circuit had already\n\ndetermined that a defendant’s non-Indian status is an affirmative defense that the\n\ndefendant must first properly raise. Hester, 719 F.2d at 1043 (holding “the\n\n[g]overnment need not allege the non-Indian status of the defendant in an indictment\n\nunder section 1152, nor does it have the burden of going forward on that issue. Once\n\nthe defendant properly raises the issue of his Indian status, then the ultimate burden\n\nof proof remains, of course, upon the [g]overnment” (citation omitted)). Circuits that\n\nhave addressed the same question have followed Hester’s reasoning. See Haggerty,\n\n997 F.3d at 300–02 (discussing the circuit split between the Ninth and Tenth Circuits,\n\nand concluding that “settled and reconcilable Supreme Court doctrine, as well as\n\nprinciples of statutory construction, demonstrate that, when the victim is Indian, the\n\ndefendant’s status as Indian is an affirmative defense for which the defendant bears\n\nthe burden of pleading and production, with the ultimate burden of proof remaining\n\n\n\n 7\n “If . . . the exceptions are essential elements, then the [g]overnment must also\nallege and affirmatively prove—every time it prosecutes a crime under § 1152—that\nthe defendant has not already been punished by the local law of the tribe and that\nthere is no treaty stipulation that grants exclusive jurisdiction to the respective tribe.”\nUnited States v. Haggerty, 997 F.3d 292, 301 (5th Cir. 2021).\n 12\n\f Appellate Case: 24-2128 Document: 51-1 Date Filed: 01/12/2026 Page: 13\n\n\n\nwith the [g]overnment”); cf. United States v. Webster, 797 F.3d 531, 536 (8th Cir.\n\n2015) (concluding that one of the enumerated exceptions, “the absence of tribal\n\nprosecution[,] is not an element of § 1152” because, applying the same reasoning in\n\nHester, “[i]t is far more manageable for [a defendant] to initially show he was\n\n‘punished by the local law of the tribe’ than it is for the government to initially show\n\nthe negative” (citation omitted)).\n\n Finally, experts and academics have also acknowledged the difficulty of our\n\ncurrent standard. 8 The authors of the foremost treatise on Federal Indian Law note\n\nthat “[p]erhaps because of the evidentiary difficulty in proving a negative, even in the\n\nTenth Circuit where non-Indian status is treated an element of the offense that must\n\nbe proven at trial, the courts have given prosecutors substantial latitude in\n\nestablishing non-Indian status.” 1 Cohen’s Handbook of Federal Indian Law\n\n§ 11.02[1][b][iii] (2025) (“In a nation with well over 570 federally recognized Indian\n\ntribal nations, . . . it would be difficult to require the government to prove that the\n\ndefendant is not a member of any of them, absent some evidence that the question is\n\ncontested by the defendant.”). Indeed, and as evidenced by Ruiz’s trial, our circuit\n\nhas allowed testimony of personal knowledge that the defendant was a non-Indian to\n\n\n\n 8\n The American Indian Law in a Nutshell, a comprehensive resource on the\nfederal law of American Indians, cognizes the circuit split. William C. Canby, Jr.,\nAmerican Indian Law in a Nutshell 195 (Jesse E. Chopper et al. eds., 8th ed. 2025)\n(“Circuits have split on the question whether the Indian or non-Indian status of the\ndefendant must be pleaded and proved by the government in a prosecution under 18\nU.S.C.A. § 1152.”). Notably, the author of the guide is Judge William Canby, Jr., the\nauthor of United States v. Hester in the Ninth Circuit.\n 13\n\f Appellate Case: 24-2128 Document: 51-1 Date Filed: 01/12/2026 Page: 14\n\n\n\nbe admitted if there is adequate foundation. Walker, 85 F.4th at 983–84 (“The\n\npersonal knowledge standard is not difficult to meet.” (citation modified)). But this\n\nworkaround misses the forest for the trees.\n\n As unrealistic as our current standard for proving a defendant’s non-Indian\n\nstatus may seem, we must abide by our existing precedent unless and until we revisit\n\nour decision in Prentiss. We join our colleague in encouraging this court to\n\nreexamine and correct our current caselaw on the issue. See Hebert, 159 F.4th at\n\n790–92. (Hartz, J., concurring) (“I write separately only to urge this court to\n\nreconsider its view, stated in the en banc decision in United States v. Prentiss, 256\n\nF.3d 971 (10th Cir. 2001), that the non-Indian status of the defendant is an element of\n\nthe offense charged under 18 U.S.C. § 1152.”).\n\n III. Conclusion\n\n For the foregoing reasons, we vacate Ruiz’s conviction and remand for further\n\nproceedings.\n\n\n\n\n 14", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11239862/", "author_raw": "TYMKOVICH, Circuit Judge."}]}	HARTZ	TYMKOVICH	MCHUGH	1		{"HARTZ": ", Circuit", "TYMKOVICH": ", Circuit", "McHUGH": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10773277/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,773,793	United States v. Griffin	2026-01-13	24-8070	U.S. Court of Appeals for the Tenth Circuit	{"judges": "Before HARTZ, TYMKOVICH, and McHUGH, Circuit Judges.", "parties": "", "opinions": [{"author": "TYMKOVICH, Circuit Judge.", "type": "010combined", "text": "Appellate Case: 24-8070 Document: 52-1 Date Filed: 01/13/2026 Page: 1\n FILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS January 13, 2026\n\n Christopher M. Wolpert\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n UNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v. No. 24-8070\n\n GREGORY JAMES GRIFFIN,\n\n Defendant - Appellant.\n _________________________________\n\n Appeal from the United States District Court\n for the District of Wyoming\n (D.C. No. 2:24-CR-00062-SWS-1)\n _________________________________\n\nJacob Rasch-Chabot, Assistant Federal Public Defender (Virginia L. Grady, Federal\nPublic Defender, with him on the briefs), Office of the Federal Public Defender, Denver,\nColorado, for Defendant-Appellant.\n\nZ. Seth Griswold, Assistant United States Attorney (Stephanie I. Sprecher, Acting United\nStates Attorney, with him on the brief), Office of United States Attorney, District of\nWyoming, Cheyenne, Wyoming, for Plaintiff-Appellee.\n _________________________________\n\nBefore HARTZ, TYMKOVICH, and McHUGH, Circuit Judges.\n _________________________________\n\nTYMKOVICH, Circuit Judge.\n _________________________________\n\n Gregory Griffin pleaded guilty to possession of child pornography in violation\n\nof 18 U.S.C. § 2252A(a)(5)(B). Violations of that provision trigger a mandatory\n\nminimum term of ten years’ imprisonment if the defendant has a “prior conviction”\n\f Appellate Case: 24-8070 Document: 52-1 Date Filed: 01/13/2026 Page: 2\n\n\n\nunder state law “relating to” possession of child pornography. 18 U.S.C.\n\n§ 2252A(b)(2). Griffin stipulated that he had a previous conviction under California\n\nPenal Code § 311.11, which criminalizes possession of images that depict a minor\n\n“personally engaging in or simulating sexual conduct.” At sentencing, Griffin argued\n\nthat his conviction under the California statute does not necessarily relate to\n\npossession of child pornography, as defined and required under federal law. The\n\ncourt disagreed, found that Griffin’s prior conviction triggered § 2252A(b)(2)’s\n\nmandatory minimum, and sentenced Griffin to ten years’ imprisonment.\n\n Exercising our jurisdiction under 28 U.S.C. § 1291, we VACATE his sentence\n\nand REMAND for resentencing. To determine whether a prior conviction qualifies\n\nas a predicate offense under a sentencing statute, we apply the so-called categorical\n\ntest. Under that test, we look only at the fact of the defendant’s conviction and ask\n\nwhether the elements of the state offense categorically fall within the elements of the\n\ngeneric federal offense—i.e., the predicate offense defined by federal law. And\n\napplying that test here, we conclude that a conviction under California Penal Code\n\n§ 311.11 does not categorically fall within § 2252A(b)(2)’s generic offense. Griffin’s\n\nprevious conviction therefore did not trigger the ten-year mandatory minimum\n\nsentence under § 2252A(b)(2).\n\n I. Background\n\n The government charged Griffin with violating 18 U.S.C. § 2252A(a)(5)(B),\n\nwhich criminalizes possession of child pornography. After initially pleading not\n\n\n 2\n\f Appellate Case: 24-8070 Document: 52-1 Date Filed: 01/13/2026 Page: 3\n\n\n\nguilty, Griffin changed his plea to guilty, and the district court set the case for\n\nsentencing.\n\n As relevant here, the parties disputed at sentencing whether Griffin was\n\nsubject to a mandatory minimum sentence under 18 U.S.C. § 2252A(b)(2). That\n\nprovision requires the court to sentence a defendant to at least ten years’ confinement\n\nif he has previously been convicted of an offense relating to possession of child\n\npornography. And though Griffin had a prior conviction under California law, he\n\nargued that it did not trigger § 2252A(b)(2)’s mandatory minimum. Agreeing with\n\nthe government, the district court ruled that the previous conviction qualified as a\n\npredicate offense and applied the ten-year mandatory minimum.\n\n II. Discussion\n\n We review the district court’s imposition of a mandatory minimum de novo.\n\nUnited States v. Hebert, 888 F.3d 470, 472 (10th Cir. 2018) (citing United States v.\n\nBecker, 625 F.3d 1309, 1310 (10th Cir. 2010)). Federal sentencing statutes\n\nsometimes impose an enhanced sentence if a defendant has a prior conviction for\n\nspecified predicate offenses. Section 2252A(b)(2) is such a statute: it imposes a\n\nmandatory minimum sentence of ten years if the defendant has a conviction under\n\n“the laws of any State relating to . . . possession . . . of child pornography.” We\n\nemploy the categorical approach to determine whether a prior state conviction\n\nqualifies as a predicate offense. See Taylor v. United States, 495 U.S. 575, 602\n\n\n\n\n 3\n\f Appellate Case: 24-8070 Document: 52-1 Date Filed: 01/13/2026 Page: 4\n\n\n\n(1990). 1 That approach requires us to look at the fact of the defendant’s state\n\nconviction alone—and not at the defendant’s underlying conduct—to determine\n\nwhether the prior conviction qualifies. Descamps v. United States, 570 U.S. 254, 269\n\n(2013). And the fact of conviction qualifies as a predicate offense only if the\n\nelements of the state offense categorically fall within the elements of the generic\n\noffense defined by federal law. United States v. Kendall, 876 F.3d 1264, 1267–68\n\n(10th Cir. 2017).\n\n The categorical approach thus breaks down into three steps. First, the court\n\ndiscerns the scope of the generic offense, which is defined by the federal statute. See\n\nHebert, 888 F.3d at 472. Next, it ascertains the scope of the state statute, relying on\n\nits text or interpretations of the statute by the state’s highest court. See Johnson v.\n\nUnited States, 559 U.S. 133, 138 (2010); United States v. Withrow, 49 F.4th 1372,\n\n1380 (10th Cir. 2022) (considering the Oklahoma Court of Criminal Appeals’s\n\ninterpretation of state statute). And last, it asks whether the state statute sweeps more\n\nbroadly than the generic offense. Kendall, 876 F.3d at 1267–68. When performing\n\nthis last step, the court considers the “‘least of the acts criminalized’ under the state\n\nstatute.” Mellouli v. Lynch, 575 U.S. 798, 805 (2015) (quoting Moncrieffe v. Holder,\n\n569 U.S. 184, 190–91 (2013)). So if the state statute sweeps in conduct that the\n\ngeneric federal offense does not, the state conviction does not qualify as a predicate\n\noffense—even if the conduct stands at the outer boundaries of the state statute’s\n\n\n 1\n The parties concede that the modified categorical approach does not apply\nhere.\n 4\n\f Appellate Case: 24-8070 Document: 52-1 Date Filed: 01/13/2026 Page: 5\n\n\n\nscope. Withrow, 49 F.4th at 1375 (“The test is all or nothing. Either any conviction\n\nunder the statute will qualify, or none will.”). 2\n\n But standing at the statute’s outer boundary is one thing; employing “legal\n\nimagination” to contrive hypothetical conduct implausibly unconnected to the statute\n\nis another. Gonzales v. Duenas-Alvarez, 549 U.S.183, 193 (2007). Thus, there must\n\nexist a “realistic probability . . . that the State would apply its statute to conduct that\n\nfalls outside the generic definition of a crime.” Moncrieffe, 569 U.S. at 190–91. And\n\nthe defendant may show this realistic probability through “the statute’s plain\n\nlanguage and the state’s interpretive caselaw.” United States v. Campbell, 156 F.4th\n\n1019, 1029 (10th Cir. 2025).\n\n As we explain, Griffin’s California conviction does not qualify as a predicate\n\noffense because § 311.11 sweeps more broadly than § 2252A(b)(2)’s generic offense.\n\nThe conviction therefore does not satisfy the categorical test.\n\n First, we consider the generic federal offense under § 2252A(b)(2), an offense\n\n“relating to . . . possession . . . of child pornography.” Because the statute uses the\n\nphrase “relating to,” our cases explain that the generic offense captures conduct\n\n\n 2\n This approach has been criticized as counterintuitive. The categorical\napproach requires us to pretend that the defendant may have been convicted for some\nnongeneric conduct, even when we know he wasn’t because the record tells us he\nwasn’t. See Mathis v. United States, 579 U.S. 500, 538 (2016) (Alito, J., dissenting)\n(“The [categorical] approach calls for sentencing judges to delve into pointless\nabstract questions.”); Quarles v. United States, 587 U.S. 645, 656 (2019) (Thomas,\nJ., concurring) (describing the “absurdity of applying the categorical approach” given\nthe “reality of petitioner’s actual crime”); Sheldon A. Evans, Categorical\nNonuniformity, 120 Colum. L. Rev. 1771, 1814–25 (2020) (evaluating the merits of a\nconduct-based approach).\n 5\n\f Appellate Case: 24-8070 Document: 52-1 Date Filed: 01/13/2026 Page: 6\n\n\n\nbroader than just possession of child pornography as defined by federal law. United\n\nStates v. Bennett, 823 F.3d 1316, 1322–25 (10th Cir. 2016). In Bennett, for example,\n\nwe held that Colorado’s statute criminalizing possession of child pornography\n\ncaptured possession of images that fell outside the federal definition of child\n\npornography. Id. at 1325. But because § 2252A(b)(2)’s generic offense included the\n\nphrase “relating to,” we determined that the generic offense covered possession of\n\nimages that related to the federal definition of child pornography (explicit images of\n\na female child’s breasts), even if the images were not identical to the federal\n\ndefinition. Id. Thus, to qualify as a predicate offense under § 2252A(b)(2), the state\n\ndefinition of child pornography need not bear a precise one-to-one correspondence to\n\nthe federal definition.\n\n Section 2256(8) defines “child pornography” as a visual image that depicts a\n\nminor “engaging in sexually explicit conduct.” Section 2256(2)(A) in turn defines\n\n“sexually explicit conduct” as (1) “sexual intercourse,” (2) “bestiality,”\n\n(3) “masturbation,” (4) “sadistic or masochistic abuse,” or (5) “lascivious exhibition\n\nof the anus, genitals, or pubic area of any person.” 3 We have relied on several\n\nfactors to illuminate what constitutes a lascivious exhibition. United States v. Wells,\n\n843 F.3d 1251, 1253 (10th Cir. 2016) (discussing factors from United States v. Dost,\n\n636 F. Supp. 828 (S.D. Cal. 1986), aff’d sub nom. United States v. Wiegand, 812 F.2d\n\n1239 (9th Cir. 1987)). Stated generally, these factors consider whether the image’s\n\n\n Section 2256(2)(B) gives an alternative definition of “sexually explicit\n 3\n\nconduct,” but the parties do not raise it here.\n 6\n\f Appellate Case: 24-8070 Document: 52-1 Date Filed: 01/13/2026 Page: 7\n\n\n\n“focal point” is the “child’s genitalia or pubic area,” whether the image is “sexually\n\nsuggestive,” whether the “child is depicted in an unnatural pose,” whether the child is\n\nclothed or nude, whether the image “suggests sexual coyness or a willingness to\n\nengage in sexual activity,” and whether the image is “intended or designed to elicit a\n\nsexual response in the viewer.” Id. at 1253–54.\n\n Next, we consider the state statute that Griffin was convicted under. The\n\nCalifornia statute criminalizes possessing an image “knowing that the [image] depicts\n\n[a minor] personally engaging in or simulating sexual conduct.” Cal. Penal Code\n\n§ 311.11. “Sexual conduct” is defined as, inter alia, “any lewd or lascivious sexual\n\nact,” id. § 311.4, which is in turn defined as “any lewd or lascivious act . . . upon or\n\nwith the body . . . of a child . . . with the intent of arousing . . . [the] sexual desires of\n\nthat person or child.” Id. § 288.\n\n The California Supreme Court has given a remarkably broad interpretation to\n\n§ 288. The court, for example, has defined a lewd or lascivious sexual act to\n\nencompass “‘any touching’ of an underage child committed with the intent to\n\nsexually arouse either the defendant or the child.” People v. Martinez, 903 P.2d\n\n1037, 1041 (Cal. 1995) (emphasis added). And the touching need not be “inherently\n\nlewd” or involve any “specific or intimate body part” of the child. Id. Thus, in\n\nMartinez, the California Supreme Court affirmed a conviction under § 288 where the\n\ndefendant “wrapped his arms around” a young girl and “tried to kiss her.” Id.\n\nat 1048. That act, the court held, was a lewd or lascivious sexual act. Id.\n\n\n\n 7\n\f Appellate Case: 24-8070 Document: 52-1 Date Filed: 01/13/2026 Page: 8\n\n\n\n Finally, we compare the scope of the California statute with the generic federal\n\noffense. Focusing on the broadest conduct criminalized under the statute, § 311.11\n\ncriminalizes possession of an image of “any touching” between an adult and child\n\nwhere the adult has a sexual subjective intent. So, in other words, the statute covers\n\nnonexplicit images of children with no focus on the child’s intimate areas—for\n\nexample, an image that depicts an adult simply hugging a fully clothed child where\n\nthe adult had the intent to be aroused. Id. at 1046 (explaining that “children are\n\nroutinely cuddled” and “such behavior may fall . . . within . . . section 288”). That\n\nsort of nonexplicit image would be far from a “lascivious exhibition of the anus,\n\ngenitals, or pubic area” required by federal law. 18 U.S.C. § 2256(2)(A). It has no\n\nnudity. It has no outward suggestion of sexuality. And it has no focus on any\n\nintimate area of the child, let alone a focus on the child’s genitalia or pubic area.\n\nBecause the California statute thus sweeps much more broadly than the generic\n\noffense, a conviction under the California statute does not categorically fall under\n\n§ 2252A(b)(2)’s generic offense. In so holding, we reach a conclusion similar to the\n\nNinth Circuit’s. See United States v. Reinhart, 893 F.3d 606, 617–18 (9th Cir. 2018)\n\n(holding that § 311.11 fails the categorical test but using a narrower definition of the\n\ngeneric offense than the Tenth Circuit does); Chavez-Solis v. Lynch, 803 F.3d 1004,\n\n1008–09 (9th Cir. 2015) (concluding that § 311.11 is overinclusive).\n\n As we recognized above, the image criminalized under state law need not be\n\nidentical to the federal definition of child pornography. Bennett, 823 F.3d at 1322–\n\n23. But it still must bear a close resemblance. In Bennett, for example, we\n\n 8\n\f Appellate Case: 24-8070 Document: 52-1 Date Filed: 01/13/2026 Page: 9\n\n\n\nconsidered a Colorado statute that covered images falling outside the federal\n\ndefinition because they did not portray a child’s anus, genitalia, or pubic area; they\n\ninstead portrayed the female child’s breasts. Id. at 1322. But that portrayal of\n\n“explicit sexual conduct,” which focused on an intimate part of the child’s body,\n\n“undeniably” related to possession of child pornography. Id. at 1325 (emphasis\n\nadded). Not so here. It would surpass even the wide latitude our cases allow to treat\n\na nonexplicit image depicting seemingly innocent, non-intimate touching—between\n\nfully clothed individuals—as related to the federal definition of child pornography.\n\n The government’s arguments to the contrary fail to convince us.\n\n The government first contends that § 311.11’s scienter element—which\n\nrequires that the defendant “knowingly possess” an image that he “know[s] . . .\n\ndepicts” a child “engaging in or simulating sexual conduct”—focuses the state crime\n\non images that relate to the federal definition of child pornography. The scienter\n\nrequirement doesn’t change much, however; it just requires that the defendant know\n\nthat the image depicts a child “engaging in or simulating sexual conduct.” But once\n\nwe import § 288’s broad definition into § 311.11, the scienter element requires that\n\nthe defendant know that the image features “any touching” between the child and\n\nadult and know that the adult harbors a sexual subjective intent. In other words, we\n\nare still faced with the problem above: the criminalized image can depict content far\n\nremoved from the federal definition of child pornography, which requires a\n\n“lascivious exhibition of the anus, genitals, or pubic area.” 18 U.S.C.\n\n\n\n 9\n\f Appellate Case: 24-8070 Document: 52-1 Date Filed: 01/13/2026 Page: 10\n\n\n\n§ 2256(2)(B)(iii). The image, in other words, remains by all appearances nonexplicit\n\nwith no focus on the child’s intimate areas.\n\n The government also contends that even if the California statute could be read\n\nas broadly as we read it, Griffin must show a “realistic probability of being\n\nprosecuted under the statute” for that conduct. Oral Argument at 17:41–17:46,\n\nUnited States v. Griffin, 24-8070 (10th Cir. Nov. 21, 2025),\n\nhttps://www.ca10.uscourts.gov/sites/ca10/files/oralarguments/24-8070.mp3. But that\n\nmisstates the reasonable-probability requirement. It does not require some likelihood\n\nthat California would actually prosecute someone for possessing an image of an adult\n\ninnocuously hugging a child. See United States v. Taylor, 596 U.S. 845, 857–58\n\n(2022) (noting that the categorical approach does not “impose a burden on the\n\ndefendant to present proof about the government’s own prosecutorial habits”). What\n\nit instead requires is a realistic probability that the “State would apply its statute to\n\nconduct that falls outside the generic definition of a crime.” Moncrieffe, 569 U.S.\n\nat 191 (quoting Gonzales, 549 U.S. at 193). And of course one way to show that a\n\nstate would apply its statute to such conduct would be to point to past prosecutions,\n\nor to a probability that the state would bring such a prosecution. Campbell, 156 F.4th\n\nat 1029 (“A defendant can establish this realistic probability . . . by providing\n\nexamples of actual prosecutions of conduct . . . .”). But a realistic probability can\n\nalso be shown through the statute’s own language, interpreted by the state’s caselaw.\n\nId.; see Taylor, 596 U.S. at 857 (rejecting the government’s attempt to “fault[] [the\n\n\n\n 10\n\f Appellate Case: 24-8070 Document: 52-1 Date Filed: 01/13/2026 Page: 11\n\n\n\ndefendant] for failing to identify a single case” of prosecution where the “the\n\nstatute’s terms” applied to such conduct).\n\n Griffin has shown a realistic probability that California’s courts would apply\n\nthe statute to nonexplicit images by pointing to the California Supreme Court’s\n\nauthoritative interpretation of § 288. In particular, he points to Martinez, where the\n\nCalifornia Supreme Court interpreted § 288 to include “any touching.” See Martinez,\n\n903 P.2d at 1041; see Gonzales, 549 U.S. at 193 (explaining that a defendant can\n\nshow a realistic probability by pointing to “other cases in which the state courts did\n\nin fact apply the statute in the special (nongeneric) manner”). In other words, our\n\nreading of the statute requires no “legal imagination,” Gonzales, 549 U.S. at 193,\n\nbecause the state’s highest court has told us that a lewd and lascivious act under\n\n§ 288, which forms one basis of § 311.11’s liability, covers “a touching of ‘any part’\n\nof the victim’s body” if the adult has the requisite sexual intent. Martinez, 903 P.2d\n\nat 1041.\n\n And once we import § 288—and its judicial gloss—into § 311.11’s text, the\n\nstatute covers images where an adult touches any part of a child’s body with the\n\nrequisite sexual intent. By its language, then, § 311.11 encompasses possessing\n\nimages where, for example, the individuals are fully clothed and the only contact is\n\nthe adult’s arm around the child’s shoulder. Martinez even gave its imprimatur to\n\nseveral California cases where § 288 had been applied to apparently innocuous\n\ntouching. See id. at 1044 (collecting cases and describing one case where “defendant\n\npinch[ed] [a] girl’s leg”). Griffin has met the realistic-probability requirement\n\n 11\n\f Appellate Case: 24-8070 Document: 52-1 Date Filed: 01/13/2026 Page: 12\n\n\n\nthrough the statute’s “language and the state’s interpretive caselaw.” Campbell,\n\n156 F.4th at 1019.\n\n Finally, the government argues that the Dost factors—which help define\n\n“lascivious exhibition”—vastly expand the federal definition of child pornography to\n\ncover nonexplicit images. The government says, for example, that even nonexplicit\n\nimages of a child can constitute child pornography “so long as they are of the genital\n\nor pubic area” and satisfy at least one Dost factor. Appellee Br. at 15 (emphasis\n\nadded). But that emphasized qualification dooms the government’s argument; it\n\nensures that the federal definition—even when expanded by the Dost factors—\n\nremains focused on the child’s intimate areas, even if nonexplicit.\n\n To sharpen this point, consider the case the government relies on to show that\n\nthe Dost factors stretch the federal definition to include nonexplicit images, United\n\nStates v. Helton, 302 F. App’x 842, 847 (10th Cir. 2008). But Helton addressed\n\nimages recorded from a camera concealed in a bathroom; the camera recorded young\n\ngirls using the toilet and shower. We affirmed the district court’s finding that the\n\nimages satisfied the Dost factors because the images focused on the girls’ genitalia or\n\npubic area, despite being at least partially clothed. The California statute covers\n\nimages with no such focus.\n\n Because § 311.11 sweeps in conduct broader than § 2252A(b)(2)’s generic\n\noffense, a conviction under the California law does not categorically fall under the\n\ngeneric offense. Griffin’s prior state conviction, therefore, does not qualify as a\n\n\n\n 12\n\f Appellate Case: 24-8070 Document: 52-1 Date Filed: 01/13/2026 Page: 13\n\n\n\npredicate offense under § 2252A(b)(2) and does not trigger § 2252A(b)(2)’s\n\nmandatory minimum.\n\n III. Conclusion\n\n For the foregoing reasons, we vacate Griffin’s sentence and remand for\n\nresentencing.\n\n\n\n\n 13", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11240378/", "author_raw": "TYMKOVICH, Circuit Judge."}]}	HARTZ	TYMKOVICH	MCHUGH	1		{"HARTZ": ", Circuit", "TYMKOVICH": ", Circuit", "McHUGH": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10773793/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,773,794	Andrew v. White	2026-01-13	15-6190	U.S. Court of Appeals for the Tenth Circuit	{"judges": "Before HARTZ, BACHARACH, and PHILLIPS, Circuit Judges.", "parties": "", "opinions": [{"type": "010combined", "text": "Appellate Case: 15-6190 Document: 237-1 Date Filed: 01/13/2026 Page: 1\n FILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS January 13, 2026\n\n Christopher M. Wolpert\n FOR THE TENTH CIRCUIT Clerk of Court\n ______________________________________________________\n\n\nBRENDA EVERS ANDREW,\n\n Petitioner - Appellant,\n\nv. No. 15-6190\n\nSCOTT TINSLEY, Warden, Mabel\nBassett Correctional Center,\n\n Respondent - Appellee.\n\n--------------------------------------\n\nFAIR TRIAL ANALYSIS, LLC;\nOKLAHOMA APPLESEED\nCENTER FOR LAW AND JUSTICE;\nJAMIE ABRAMS; MARY ATWELL;\nVALENA BEETY; SALLY\nGOLDFARB; LEIGH GOODMARK;\nAYA GRUBER; MALLIKA KAUR;\nLEGAL MOMENTUM; NANCY\nLEMON; CORTNEY LOLLAR;\nMINDY MECHANIC; PRISCILLA\nOCEN; AMANDA POTTS; SUSAN\nSHARP; WOMEN’S LAW\nPROJECT,\n\n Amicus Curiae.\n ___________________________________________\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE WESTERN DISTRICT OF OKLAHOMA\n (D.C. No. 5:08-CV-00832-R)\n _____________________________________________________\n\f Appellate Case: 15-6190 Document: 237-1 Date Filed: 01/13/2026 Page: 2\n\n\n\nNathalie Marie Greenfield, Phillips Black, Inc. Oakland, California (John\nR. Mills and Meredith Huang, Phillips Black, Inc., Oakland, California,\nand John T. Carlson, Ridley McGreevy & Winocur, Denver, Colorado, with\nher on the briefs), for Petitioner-Appellant.\n\nJennifer L. Crabb, Assistant Attorney General (Gentner F. Drummond,\nAttorney General, with her on the briefs), Attorney General’s Office, State\nof Oklahoma, Oklahoma City, Oklahoma, for Respondent-Appellee.\n\nAndrew LeGrand, Counsel of Record, Russ Falconer, and Erin Marie Choi,\nGibson, Dunn & Crutcher, LLP, Dallas, Texas; Mark J. Cherry, Gibson,\nDunn & Crutcher LLP, New York, New York; Monica Limeng Woolley,\nHayley N. Lawrence, Maya Jeyendran, and Tate Rosenblatt, Gibson, Dunn\n& Crutcher LLP, Washington, D.C., filed an amicus curiae brief for Jamie\nAbrams, Mary Atwell, Valena Beety, Sally Goldfarb, Leigh Goodmark, Aya\nGruber, Mallika Kaur, Legal Momentum, Nancy Lemon, Cortney Lollar,\nMindy Mechanic, Priscilla Ocen, Amanda Potts, Susan Sharp, Women’s\nLaw Project, on behalf of Appellant. Barry C. Edwards, Orlando Florida,\nfiled an amicus curiae brief for Fair Trial Analysis, LLC, in partial support\nof Appellant and partial support of Appellee.\n _____________________________________________________\n\nBefore HARTZ, BACHARACH, and PHILLIPS, Circuit Judges.\n _____________________________________________________\n\nBACHARACH, Circuit Judge.\n _____________________________________________________\n\n This appeal grew out of the murder of Mr. Rob Andrew. Suspicion\n\ndescended on his wife, Ms. Brenda Andrew, who was having an affair with\n\nJames Pavatt. Mr. Pavatt eventually admitted that he had shot Rob. But the\n\npolice suspected collusion with Ms. Andrew, and she was eventually\n\nconvicted and sentenced to (1) death for first-degree murder and (2) 10\n\nyears and a $5,000.00 fine for conspiracy to commit first-degree murder.\n\nAfter exhausting her appeals in state court, Ms. Andrew unsuccessfully\n\n\n\n 2\n\f Appellate Case: 15-6190 Document: 237-1 Date Filed: 01/13/2026 Page: 3\n\n\n\nsought habeas relief in federal district court. She appeals the denial of\n\nhabeas relief.\n\n We are addressing this appeal for the second time. The first time,\n\nMs. Andrew presented multiple claims. This time, the claims have been\n\nwinnowed to one: the denial of a fair trial based on evidence of a gender\n\nstereotype and promiscuity. The Oklahoma Court of Criminal Appeals\n\nrejected this claim, triggering limited review under federal law. With the\n\nlimited scope of review, we conclude that the Oklahoma Court of Criminal\n\nAppeals reasonably applied Supreme Court precedent in deeming the trial\n\nfundamentally fair.\n\n1. The issues have narrowed.\n\n When we addressed the appeal the first time, we considered ten\n\nclaims, including\n\n • improper introduction of sexual evidence,\n\n • exclusion of defense witnesses,\n\n • violation of Miranda, and\n\n • cumulative error.\n\nAndrew v. White, 62 F.4th 1299, 1309–10 (10th Cir. 2023) (listing the ten\n\nissues that Ms. Andrew had raised and we considered), judgment vacated,\n\n604 U.S. 86 (2025). A majority of the panel rejected all of the claims.\n\nMs. Andrew obtained certiorari, and the Supreme Court addressed only the\n\nclaim involving sexual evidence.\n 3\n\f Appellate Case: 15-6190 Document: 237-1 Date Filed: 01/13/2026 Page: 4\n\n\n\n With this focus on the claim involving sexual evidence, the Supreme\n\nCourt vacated our judgment and remanded the case. But the Court didn’t\n\nvacate the majority opinion. So we directed the parties to address the\n\nimpact of the remand.\n\n Ms. Andrew responded by reurging her claim of an unfair trial based\n\non the introduction of sexual evidence. But she didn’t assert constitutional\n\nviolations based on the exclusion of testimony, a violation of Miranda, or\n\nthe existence of cumulative error. Instead, Ms. Andrew argued only that the\n\ncourt could consider these alleged violations when assessing prejudice\n\nfrom the sexual evidence. The parties’ arguments on remand constrain our\n\nreview. See Greenlaw v. United States, 554 U.S. 237, 243 (2008) (stating\n\nthat “we rely on the parties to frame the issues for decision and assign to\n\ncourts the role of neutral arbiter of matters the parties present”).\n\n For this review, the parties agree that federal law bars the\n\navailability of habeas relief unless the Oklahoma Court of Criminal\n\nAppeals\n\n • unreasonably applied Supreme Court precedent involving the\n denial of a fundamentally fair trial or\n\n • based the decision on an unreasonable determination of fact.\n\n28 U.S.C. § 2254(d)(1)–(2). We apply this standard based solely on the\n\nintroduction of sexual evidence.\n\n\n\n\n 4\n\f Appellate Case: 15-6190 Document: 237-1 Date Filed: 01/13/2026 Page: 5\n\n\n\n2. Ms. Andrew challenges a wide range of evidence.\n\n In supplemental briefing after remand, Ms. Andrew challenges the\n\nintroduction of “sex-stereotyping evidence.” Appellant’s Supp. Opening Br.\n\nat 19–20 (Apr. 7, 2025). This evidence concerns Ms. Andrew’s sex life,\n\nappearance, and demeanor.\n\n Ms. Andrew’s sex life. The sexual evidence includes Ms. Andrew’s\n\naffairs with James Higgins and Rick Nunley. Both men testified about these\n\naffairs. For example, Mr. Higgins testified about how Ms. Andrew had\n\nflirted and discussed their sexual interludes. 1\n\n Ms. Andrew also points to testimony about her affair with\n\nJames Pavatt. This testimony came from three ministers and a neighbor\n\nwho had seen Mr. Pavatt holding his face within inches of Ms. Andrew’s.\n\n Finally, the government presented an excerpt from Rob’s journal,\n\nwhich discusses Ms. Andrew’s alleged infidelity during their engagement.\n\n Ms. Andrew’s appearance and demeanor. The evidence also\n\nincludes testimony by five persons about Ms. Andrew’s provocative\n\nclothing and hair style. Mr. Higgins testified that Ms. Andrew had “dressed\n\nsexy” with “short skirt[s], low-cut tops, just sexy outfits, provocative.”\n\nTrial Trans. vol. 2, at 247. Mr. Higgins added that Ms. Andrew had made\n\n\n\n1\n Mr. Higgins also testified that Ms. Andrew had told him that she\nhated Rob and wished he were dead so that she could go on with her life.\nTrial Trans. vol. 2, at 250, 256.\n 5\n\f Appellate Case: 15-6190 Document: 237-1 Date Filed: 01/13/2026 Page: 6\n\n\n\nadvances on his sons. Besides Mr. Higgins, a babysitter recalled that\n\nMs. Andrew had once left her house with rolled hair and revealing clothes.\n\nAnother witness testified that Ms. Andrew had entered a restaurant wearing\n\na “very tight” dress exposing a lot of cleavage, with “[v]ery Gothic, long\n\nblack hair,” leading someone to call her a “hoochie.” Id. at 320–24. Still\n\nanother witness recalled that\n\n • Ms. Andrew had asked a woman what hair color her husband\n preferred,\n\n • the woman answered that her husband liked red hair, and\n\n • Ms. Andrew then dyed her hair red.\n\n Ms. Andrew identifies other evidence about her demeanor. For\n\nexample, ministers testified that Ms. Andrew had\n\n • used “foul” language and name calling when speaking with Rob\n and\n\n • engaged in “inappropriate behavior” with Mr. Pavatt.\n\nId. at 211. Similarly, a neighbor testified that the Andrew family had a hot\n\ntub and that Ms. Andrew might have used the hot tub for skinny-dipping.\n\nId. vol. 12, at 2848.\n\n3. Ms. Andrew also challenges the prosecution’s statements about\n her sex life and parental shortcomings.\n\n Ms. Andrew also contests the fairness of the trial based on the\n\nprosecution’s statements to the jury.\n\n\n\n\n 6\n\f Appellate Case: 15-6190 Document: 237-1 Date Filed: 01/13/2026 Page: 7\n\n\n\n Some of these statements came in the guilt phase. In its opening\n\nstatement, for example, the prosecution told that jury that “this case is\n\nabout a controlling wife.” Id. vol. 1, at 12. In closing argument, the\n\nprosecution discussed Ms. Andrew’s sex life and demeanor, calling her “an\n\nattractive woman” who had cheated with Mr. Pavatt for months and who\n\nhad “failed to express sorrow when questioned by the police after the\n\nshooting.” Id. vol. 17, at 3903. The prosecution then displayed a pair of\n\nunderwear from a suitcase that Ms. Andrew had taken to Mexico, asking if\n\na “grieving widow” would wear “this.” Id. at 4101. The prosecutor added\n\nthat Ms. Andrew must have been a “slut puppy” because she was sleeping\n\nwith a married man. Id. at 4125.\n\n During closing argument in the sentencing phase, the prosecution\n\ndiscussed Ms. Andrew’s character and demeanor. There a prosecutor said\n\nthat Ms. Andrew was “different,” had people “under [her] spell,” and was a\n\npoor mother. Id., vol. 19, at 4312–14, 4410–11, 4493.\n\n4. We assume for the sake of argument that Ms. Andrew has\n exhausted her claim.\n\n To obtain federal habeas relief, Ms. Andrew must show that she\n\nexhausted the remedies that were available in state court. 28 U.S.C.\n\n§ 2254(b)(1)(A). But a federal district court can deny habeas relief on the\n\nmerits without deciding the issue of exhaustion. See 28 U.S.C.\n\n§ 2254(b)(2); see also Williams v. Trammell, 782 F.3d 1184, 1194 (10th\n\n\n 7\n\f Appellate Case: 15-6190 Document: 237-1 Date Filed: 01/13/2026 Page: 8\n\n\n\nCir. 2015) (assuming that a claim was unexhausted and denying relief on\n\nthe merits). We take this approach, assuming for the sake of argument that\n\nMs. Andrew exhausted her claim.\n\n5. The federal district court could grant habeas relief only if the\n Oklahoma Court of Criminal Appeals had failed to reasonably\n apply Supreme Court precedent.\n\n Ms. Andrew claimed the denial of a fair trial, and the federal district\n\ncourt rejected the claim. Andrew v. Moham, No. CIV–08–832–R, 2015 WL\n\n5254525, at *14–19 (W.D. Okla. Sept. 9, 2015), aff ’d sub nom., Andrew v.\n\nWhite, 62 F.4th 1299, 1312–16 (10th Cir. 2023), judgment vacated, 604\n\nU.S. 86 (2025). We engage in de novo review over the federal district\n\ncourt’s legal analysis. See Littlejohn v. Trammell, 704 F.3d 817, 825 (10th\n\nCir. 2013) (applying the same deferential standard as the district court\n\nwhen the state appellate court had adjudicated the claim on the merits).\n\n After the claim was rejected in state court, the federal district court\n\ncould reach the merits only if the state appellate court’s decision had been\n\n • contrary to, or involving an unreasonable application of,\n clearly established Federal law, as determined by the Supreme\n Court of the United States, or\n\n • based on an unreasonable determination of the facts given the\n evidence presented in state court.\n\n\n\n\n 8\n\f Appellate Case: 15-6190 Document: 237-1 Date Filed: 01/13/2026 Page: 9\n\n\n\n28 U.S.C. § 2254(d); Andrew v. White, 604 U.S. 86, 92 (2025) (per\n\ncuriam). 2\n\n For legal issues, we conduct a two-step process. Budder v. Addison,\n\n851 F.3d 1047, 1051–52 (10th Cir. 2017). We first determine what the\n\nSupreme Court has clearly established as federal law. Williams v. Taylor,\n\n529 U.S. 362, 379–82 (2000). “[C]learly established Federal law . . . is the\n\ngoverning legal principle or principles set forth by the Supreme Court at\n\nthe time the state court renders its decision.” Lockyer v. Andrade, 538 U.S.\n\n63, 71–72 (2003) (internal quotation marks omitted). We then ask whether\n\nthe state court’s decision was contrary to, or involved an unreasonable\n\napplication of, the clearly established federal law. Frost v. Pryor, 749 F.3d\n\n1212, 1223 (10th Cir. 2014). It’s not enough for the state court to be\n\nwrong; it must be so wrong that no fair-minded jurist would agree with the\n\nstate court. Id.\n\n For the state court’s factual findings, we consider whether “the state\n\ncourt[] plainly misapprehend[ed] or misstate[d] the record in making [its]\n\nfindings, and the misapprehension goes to a material factual issue that is\n\ncentral to [the] petitioner ’s claim.” Ryder ex rel. Ryder v. Warrior, 810\n\nF.3d 724, 739 (10th Cir. 2016) (quoting Byrd v. Workman, 645 F.3d 1159,\n\n\n\n2\n Ms. Andrew acknowledges the applicability of these restrictions on\nhabeas relief. See Appellant’s Supp. Resp. Br. at 20 (stating that 28 U.S.C.\n§ 2254(d) applies).\n 9\n\f Appellate Case: 15-6190 Document: 237-1 Date Filed: 01/13/2026 Page: 10\n\n\n\n1171–72 (10th Cir. 2011)). To overcome the state appellate court’s factual\n\nfindings, the petitioner must show that they are objectively unreasonable.\n\nSmith v. Aldridge, 904 F.3d 874, 880 (10th Cir. 2018).\n\n If the state’s highest court acted unreasonably in applying Supreme\n\nCourt precedent or in finding facts, we would need to decide whether the\n\nconviction or sentence had violated the Constitution. See Fry v. Pliler, 551\n\nU.S. 112, 119 (2007) (stating that 28 U.S.C. § 2254(d) provides\n\n“precondition[s] to the grant of habeas relief . . . , not an entitlement to\n\nit”); Hancock v. Trammell, 798 F.3d 1002, 1010 (10th Cir. 2015) (“[E]ven\n\nwhen petitioners satisfy the threshold in § 2254(d), they must establish a\n\nviolation of federal law or the federal constitution.”).\n\n6. Ms. Andrew didn’t preserve her challenge to the state appellate\n court’s fact-finding.\n\n In her supplemental briefs, Ms. Andrew argues that the Oklahoma\n\nCourt of Criminal Appeals acted unreasonably twice in its factual findings:\n\n 1. In referring to Ms. Andrew’s affair with Mr. Rick Nunley, the\n court stated that “[e]vidence of their affair [had been] limited\n to one question during [Mr. Nunley’s] testimony.”\n\n 2. The court also stated that Ms. Andrew had told Mr. Nunley that\n she hated Rob and wished he was dead.\n\nAndrew v. State, 164 P.3d 176, 192 (Okla. Crim. App. 2007).\n\n But Ms. Andrew admittedly failed to present these arguments in\n\ndistrict court. See Appellant’s Supp. Resp. Br. at 4 n.3 (acknowledging that\n\n\n 10\n\f Appellate Case: 15-6190 Document: 237-1 Date Filed: 01/13/2026 Page: 11\n\n\n\n“§ 2254(d)(2) was not raised in the District Court as a basis for granting\n\nrelief on the relevant claims”). As a result, Ms. Andrew forfeited or waived\n\nthis argument. See Harris v. Sharp, 941 F.3d 962, 975 (10th Cir. 2019)\n\n(“Even in habeas cases involving the death penalty, we consider arguments\n\nforfeited or waived when they are raised for the first time on appeal.”).\n\n Ms. Andrew suggests that the preservation issue was waived when\n\nshe presented this argument in her opening appellate brief and the\n\nrespondent failed to object. Appellant’s Supp. Resp. Br. at 4 n.3. This\n\nsuggestion is misguided. Ms. Andrew doesn’t say where in her opening\n\nbrief she had mentioned § 2254(d)(2). In fact, this section isn’t cited\n\nanywhere in her opening appellate brief.\n\n She did say in a footnote: “Incidentally, the [Oklahoma Court of\n\nCriminal Appeals] misstated the record with respect to [Mr.] Nunley. It\n\nsaid evidence of his ‘sexual affair ’ with Andrew ‘was limited to one\n\nquestion during his testimony.’ In fact, there were 10 such questions . . . .”\n\nAppellant’s Opening Br. at 26 n.2. This “incidental” observation in a\n\nfootnote didn’t fairly alert either the respondent or the panel to an\n\nargument involving § 2254(d)(2). So neither the respondent nor the panel\n\never addressed an argument under § 2254(d)(2).\n\n As a fall-back position, Ms. Andrew says in a footnote that we\n\n“should address” the argument under § 2254(d)(2) as “an issue of plain\n\nerror.” Appellant’s Supp. Resp. Br. at 4 n.3. But this footnote doesn’t say\n\n 11\n\f Appellate Case: 15-6190 Document: 237-1 Date Filed: 01/13/2026 Page: 12\n\n\n\nhow the alleged factual mistake would satisfy the plain-error standard.\n\nThis failure triggers a waiver because the single sentence in Ms. Andrew’s\n\nfootnote does not adequately develop an argument for plain error. See Verlo\n\nv. Martinez, 820 F.3d 1113, 1127 (10th Cir. 2016) (“A party’s offhand\n\nreference to an issue in a footnote, without citation to legal authority or\n\nreasoned argument, is insufficient to present the issue for our\n\nconsideration.”). Given the waiver, we decline to consider the possibility\n\nof plain error. See Hancock v. Trammell, 798 F.3d 1002, 1011 (10th Cir.\n\n2015) (declining to consider a forfeited argument when the appellant in a\n\ncapital habeas case failed to urge plain error).\n\n7. A fair-minded jurist could reject Ms. Andrew’s claim as to the\n guilt phase.\n\n In considering Ms. Andrew’s claim, we apply the clearly established\n\nprohibition of “evidence so unduly prejudicial as to render a criminal trial\n\nfundamentally unfair.” Andrew v. White 604 U.S. 86, 96 (2025) (per\n\ncuriam). We first apply this prohibition to the guilt phase, addressing the\n\nrelevance of the challenged evidence, the degree of prejudice from the\n\nimproper evidence, and any mitigating instructions. See id.\n\n A. The Oklahoma Court of Criminal Appeals had leeway on the\n issue.\n\n We must determine “whether a fair-minded jurist reviewing this\n\nrecord could disagree with [Ms.] Andrew that the trial court’s mistaken\n\nadmission of irrelevant evidence was so ‘unduly prejudicial’ as to render\n 12\n\f Appellate Case: 15-6190 Document: 237-1 Date Filed: 01/13/2026 Page: 13\n\n\n\nher trial ‘fundamentally unfair.’” Id. (quoting Payne v. Tennessee, 501 U.S.\n\n808, 825 (1991)); see also Martinez v. Quick, 134 F.4th 1046, 1065 (10th\n\nCir. 2025) (applying this standard and concluding that “a fairminded jurist\n\ncould (and perhaps would) disagree with [the petitioner ’s] view that the\n\ninadvertent introduction of [a] racial slur rendered his sentencing\n\nfundamentally unfair”), petition for cert. filed (U.S. Sept. 15, 2025). To\n\npredict what a fair-minded jurist might decide, we consider the specificity\n\nof the Supreme Court’s rule. Yarborough v. Alvarado, 541 U.S. 652, 664\n\n(2004); Graham v. White, 101 F.4th 1199, 1208 (10th Cir. 2024). “The\n\nmore general the rule, the more leeway courts have in reaching outcomes in\n\ncase-by-case determinations.” Yarborough, 541 U.S. at 664.\n\n Given the generality of the rule on fundamental fairness, we afford\n\nconsiderable leeway to the state appellate courts. See Keahey v. Marquis,\n\n978 F.3d 474, 479 (6th Cir. 2020) (concluding that a state court had\n\nconsiderable leeway because the right of a criminal defendant to\n\nfundamental fairness lacks specificity); see also Graham, 101 F.4th at 1208\n\n(stating that we give leeway to the state appeals court when applying a\n\ngeneral Supreme Court rule on the arbitrariness of a state court’s decision).\n\nSo the Oklahoma Court of Criminal Appeals had “broad discretion” when\n\ndeciding the issue. Lockyer v. Andrade, 538 U.S. 63, 76 (2003).\n\n\n\n\n 13\n\f Appellate Case: 15-6190 Document: 237-1 Date Filed: 01/13/2026 Page: 14\n\n\n\n B. We consider only the arguments that Ms. Andrew presented\n in the Oklahoma Court of Criminal Appeals.\n\n We review the reasonableness of a state court’s ruling “in light of the\n\narguments the petitioner raised in the state court.” Wellmon v. Colo. Dep’t\n\nof Corr., 952 F.3d 1242, 1249 (10th Cir. 2020); see also Menzies v. Powell,\n\n52 F.4th 1178, 1201 (10th Cir. 2022) (“We review the reasonableness of the\n\n[state supreme court’s] decision based on the arguments presented.”). For\n\nexample, we “do not expect state courts to address arguments the parties do\n\nnot raise.” Wellmon, 952 F.3d at 1249.\n\n In her arguments to the Oklahoma Court of Criminal Appeals,\n\nMs. Andrew relied on ten testimonial passages:\n\n 1. testimony from Tracy Higgins and Rick Nunley about sexual\n affairs with Ms. Andrew,\n\n 2. testimony that Rob had suspected an affair between\n Ms. Andrew and Mr. Nunley,\n\n 3. testimony that Rob had noticed Mr. Nunley and Ms. Andrew\n spending a lot of time together,\n\n 4. testimony about Ms. Andrew’s advances to Mr. Higgins’s sons,\n\n 5. testimony about a dinner where Ms. Andrew had worn revealing\n clothing,\n\n 6. testimony that someone had referred to Ms. Andrew as a\n “hoochie,”\n\n 7. testimony that a woman had said her husband liked red hair on\n women and that Ms. Andrew then dyed her hair red,\n\n\n 14\n\f Appellate Case: 15-6190 Document: 237-1 Date Filed: 01/13/2026 Page: 15\n\n\n\n 8. testimony that Ms. Andrew had lied to Mr. Pavatt when stating\n that she had not slept with any men other than Mr. Pavatt and\n Rob,\n\n 9. testimony that Mr. Pavatt had stated that Ms. Andrew’s children\n were “well-trained” to hide the couple’s affair, and\n\n 10. testimony by a minister about Ms. Andrew’s demeanor when\n she was planning Rob’s funeral.\n\nAppellant’s Opening Br. at 29, 38–42, 66–67, Case No. D-2004-1010\n\n(Okla. Crim. App. Feb. 21, 2006). In addition to this testimony,\n\nMs. Andrew points to the prosecution’s argument about the underwear\n\nfound in her luggage. See Trial Trans. vol. 17, at 4103 (stating that a\n\n“grieving widow . . . doesn’t pack her thong underwear and run off with\n\nher boyfriend”).\n\n In our appeal, Ms. Andrew challenges the introduction of evidence\n\nthat she didn’t challenge in the state-court appeal. In the state-court\n\nappeal, for example, she didn’t mention evidence about\n\n • her use of “foul” language,\n\n • her skinny-dipping in a hot tub,\n\n • Mr. Pavatt’s holding his face within inches of Ms. Andrew’s,\n\n • Ms. Andrew’s relationship with another man in college,\n\n • Ms. Andrew’s attractiveness,\n\n • her blank demeanor when questioned at the police station, or\n\n • characterization of her as a “slut puppy.”\n\n\n 15\n\f Appellate Case: 15-6190 Document: 237-1 Date Filed: 01/13/2026 Page: 16\n\n\n\n The Oklahoma Court of Criminal Appeals relies on the evidence\n\nidentified by the parties rather than search the record to find support for a\n\ndefendant’s claim. Cuesta-Rodriguez v. State, 247 P.3d 1192, 1197 (Okla.\n\nCrim. App. 2011). We can’t fault the Oklahoma court for this approach\n\nbecause we do the same thing. United States v. Rodriguez-Aguirre, 108\n\nF.3d 1228, 1237 n.8 (10th Cir. 1997). So the Oklahoma Court of Criminal\n\nAppeals didn’t act unreasonably by disregarding evidence that Ms. Andrew\n\nhadn’t addressed. See Wellmon v. Colo. Dep’t of Corr., 952 F.3d 1242,\n\n1249–50 (10th Cir. 2020) (concluding that the state appeals court reached a\n\nreasonable decision based on the arguments presented there).\n\n C. Some of the sexual evidence was irrelevant.\n\n Given the Supreme Court’s directions on remand, we revisit the\n\nrelevance of the State’s evidence involving Ms. Andrew’s sexual conduct.\n\nSee Andrew v. White, 604 U.S. 86, 96 (2025) (per curiam) (instructing our\n\ncourt to consider the relevance of the disputed evidence to the charges and\n\nsentencing factors). Ordinarily, we’re bound by a state court’s\n\ndeterminations of relevance under a state evidence code. See DeLozier v.\n\nSirmons, 531 F.3d 1306, 1323 (10th Cir. 2008) (stating that we’re bound in\n\nhabeas review based on the Oklahoma Court of Criminal Appeals’\n\nevaluation of admissibility under state law); see also Okla. Stat. tit. 12,\n\n§§ 2401–02 (stating the standard for relevant evidence); Okla. Stat. tit. 12\n\n\n\n 16\n\f Appellate Case: 15-6190 Document: 237-1 Date Filed: 01/13/2026 Page: 17\n\n\n\n§ 2103 (stating that the Oklahoma Rules of Evidence apply in criminal\n\ncases as well as in civil cases).\n\n But Ms. Andrew argues that the introduction of irrelevant evidence\n\ndeprived her of a fundamentally fair trial. We thus reconsider the relevance\n\nof the evidence despite the Oklahoma Court of Criminal Appeals’\n\nassessment under state law. See Spears v. Mullin, 343 F.3d 1215, 1227–28\n\n(10th Cir. 2003) (disagreeing with the Oklahoma Court of Criminal\n\nAppeals on the relevance of evidence when assessing the fundamental\n\nfairness of a sentencing); see also Lesko v. Owens, 881 F.2d 44, 51 (3d Cir.\n\n1989) (concluding that “the erroneous admission of evidence that is\n\nrelevant [under state law], but excessively inflammatory, might rise to the\n\nlevel of a constitutional violation”). 3\n\n\n\n3\n A potential issue exists as to our level of scrutiny over the state\nappellate court’s conclusions on relevance. On the one hand, relevance is a\ncondition of admissibility. Okla. Stat. tit. 12, § 2402. So we follow the\nstate appellate court’s determinations regarding relevance as a condition of\nadmissibility. See Boyd v. Ward, 179 F.3d 904, 912 (10th Cir.1999) (“[W]e\ndefer to state court determinations of state law.”). On the other hand,\nrelevance bears on our due process inquiry, which addresses fundamental\nfairness as a matter of federal law. See Martinez v. Quick, 134 F.4th 1046,\n1064–65 (10th Cir. 2025) (applying the “due-process principle that the\nadmission of irrelevant evidence can render a trial fundamentally unfair”);\nHooks v. Workman, 689 F.3d 1148, 1182 (10th Cir. 2012) (discussing\n“fundamental fairness safeguarded by federal law”).\n\n In this case, we need not decide the required level of scrutiny over\nthe state appellate court’s determinations of relevance. We instead assume\nfor the sake of argument that we should independently assess relevance\nwhen considering the federal claim involving the denial of a fair trial.\n 17\n\f Appellate Case: 15-6190 Document: 237-1 Date Filed: 01/13/2026 Page: 18\n\n\n\n The Oklahoma Court of Criminal Appeals acknowledged that much of\n\nthe challenged evidence had been irrelevant to guilt or innocence. Andrew\n\nv. State, 164 P.3d 176, 192 (Okla. Crim. App. 2007). That irrelevant\n\nevidence included testimony that Ms. Andrew “had ‘come on to’\n\n[Mr. Higgins’s] two adult sons,” that Ms. Andrew had dressed\n\nprovocatively when dining, that someone at a restaurant had called her a\n\n“hoochie,” and that Ms. Andrew had changed her hair color to match a\n\nman’s preference. Id. We agree with the state court’s assessment of this\n\nevidence as irrelevant. For example, Ms. Andrew’s provocative appearance\n\nand flirtatious behavior couldn’t rationally bear on whether she had plotted\n\nto kill her husband. See United States v. McFadyen-Snider, 552 F.2d 1178,\n\n1181–82 (6th Cir. 1977) (concluding that “[e]vidence of illicit sexual\n\nactivities is totally immaterial to the credibility or character traits involved\n\nin most criminal cases” (quoting United States v. Cox, 536 F.2d 65, 71 (5th\n\nCir. 1976))).\n\n But the Oklahoma Court of Criminal Appeals also regarded other\n\nevidence of sexual conduct as relevant. That evidence had addressed\n\n • Ms. Andrew’s affairs with Mr. Higgins and Mr. Nunley,\n\n • thong underwear found in Ms. Andrew’s luggage in Mexico,\n and\n\n • her “flat, cold, and unemotional” demeanor after the murder.\n\n\n\n\n 18\n\f Appellate Case: 15-6190 Document: 237-1 Date Filed: 01/13/2026 Page: 19\n\n\n\nAndrew v. State, 164 P.3d 176, 192–94 (Okla. Crim. App. 2007). In the\n\nOklahoma court’s view, evidence about the affairs was pertinent to motive\n\nand intent, the thong underwear showed “the extent and the nature of the\n\nrelationship between Mr. Pavatt and [Ms. Andrew] . . . and their intentions\n\nin fleeing to Mexico, and the demeanor showed “a consciousness of guilt.”\n\nId. at 192–94.\n\n We agree that evidence of demeanor could bear on guilt. But we may\n\nassume for the sake of argument that the court had misgauged the relevance\n\nof (1) Ms. Andrew’s affairs with Mr. Nunley and Mr. Higgins and (2) the\n\nthong underwear found in her luggage. See Spears v. Mullin, 343 F.3d\n\n1215, 1228 (10th Cir. 2003) (concluding that photographs had not been\n\nrelevant because they did not “support, clarify, or illustrate” other\n\ntestimony related to the prosecution’s theory).\n\n D. The properly admitted evidence was overwhelming.\n\n In assessing Ms. Andrew’s claim, we consider not only the relevance\n\nof the sexual evidence but also the prejudice. See Andrew v. White, 604\n\nU.S. 86, 96 (2025) (per curiam) (instructing us to consider “the degree of\n\nprejudice [Ms. Andrew] suffered” from the introduction of the disputed\n\nevidence). In considering the prejudice, we examine the strength of the\n\nevidence of guilt. See Le v. Mullin, 311 F.3d 1002, 1013 (10th Cir. 2002)\n\n(“Inquiry into fundamental fairness requires examination of the entire\n\nproceedings, including the strength of the evidence against the petitioner,\n 19\n\f Appellate Case: 15-6190 Document: 237-1 Date Filed: 01/13/2026 Page: 20\n\n\n\nboth as to guilt at that stage of the trial and as to moral culpability at the\n\nsentencing phase.”); Thornburg v. Mullin, 422 F.3d 1113, 1125 (10th Cir.\n\n2005) (rejecting an argument that the admission of evidence had violated\n\nthe right to a fair trial when “the evidence of guilt could reasonably be\n\nviewed as overwhelming”). “Where evidence against a defendant is strong,\n\nthe likelihood that erroneously admitted evidence will have an unduly\n\nprejudicial impact is lessened.” Johnson v. Martin, 3 F.4th 1210, 1231\n\n(10th Cir. 2021).\n\n In the prior panel opinion, the majority concluded that a reasonable\n\njurist could find “overwhelming evidence of Ms. Andrew’s guilt.” Andrew\n\nv. White, 62 F.4th 1299, 1319–20 (10th Cir. 2023), judgment vacated, 604\n\nU.S. 86 (2025). 4 For this conclusion, the majority referred to the state\n\nappellate court’s extensive summary of the underlying facts, together with\n\n24 other pieces of evidence:\n\n 1. Ms. Andrew had stated that she\n\n • wished Rob were dead so that she could proceed with her\n life and get his life-insurance money,\n\n • “would see him dead,” Trial Trans. vol. 3, at 607, and\n\n\n\n4\n In her supplemental response brief, Ms. Andrew tries to counter the\nState’s evidence based on her claims involving a violation of Miranda, the\nexclusion of defense witnesses, and the existence of cumulative error.\nAppellant’s Supp. Resp. Br. at 14, 19. But the Supreme Court’s opinion did\nnot address these claims and Ms. Andrew hasn’t argued that they remain\nviable on remand. See Part 1, above.\n 20\n\fAppellate Case: 15-6190 Document: 237-1 Date Filed: 01/13/2026 Page: 21\n\n\n\n • would kill Rob or have him killed,\n\n 2. Ms. Andrew had told Mr. Higgins that she had hated Rob “and\n wished that she didn’t have to stay with him,” id. vol. 2, at 250,\n\n 3. Ms. Andrew had asked Mr. Pavatt whether he would kill Rob or\n if he knew someone who would commit the killing,\n\n 4. Rob had repeatedly expressed fear that he would be killed by\n Ms. Andrew and Mr. Pavatt for life insurance benefits,\n\n 5. Ms. Andrew and Mr. Pavatt had tried to murder Rob by cutting\n his car ’s brake lines and luring him to a hospital,\n\n 6. Ms. Andrew and Mr. Pavatt had forged Rob’s signature to get\n ownership of his life-insurance policy,\n\n 7. Ms. Andrew had directed Mr. Pavatt to track Rob in the month\n leading to his murder,\n\n 8. Ms. Andrew had said the night before the murder that she hated\n Rob,\n\n 9. Ms. Andrew had been unusually calm at the crime scene and in\n the hours following the murder,\n\n 10. Ms. Andrew and Mr. Pavatt had giggled together at the hospital\n the morning after the murder,\n\n 11. the Andrews children had been watching television at a loud\n volume when the shooting took place even though they were\n supposed to be preparing to leave with Rob,\n\n 12. expert witnesses for both sides testified that the shot to\n Ms. Andrew’s arm had been staged to make it look like she was\n the victim,\n\n 13. an expert witness contradicted Ms. Andrew’s account by\n testifying that she had been shot in the arm from two to four\n inches away,\n 21\n\fAppellate Case: 15-6190 Document: 237-1 Date Filed: 01/13/2026 Page: 22\n\n\n\n\n 14. Ms. Andrew had refused to return a 16-gauge shotgun to Rob,\n\n 15. Ms. Andrew had used a target range 8 days before the shooting\n and left behind 16-gauge shotgun shells,\n\n 16. Rob had been killed by two 16-gauge shotgun blasts,\n\n 17. a spent 16-gauge shotgun shell was found on top of the\n Andrews’ van in the garage and the other spent shell had been\n found in a neighbor ’s bedroom,\n\n 18. the same 16-gauge shotgun had fired the spent shells found on\n the van in the garage and in the neighbor ’s bedroom,\n\n 19. Mr. Pavatt had bought a .22 handgun, and .22 caliber rounds\n were found in a nearby house accessible to Ms. Andrew,\n\n 20. Ms. Andrew had been shot with a .22 caliber handgun, and the\n shell from that gun had been recovered at the crime scene,\n\n 21. the police had found three .22 caliber rounds in the attic and a\n spare bedroom in a nearby home that Ms. Andrew had been\n asked to watch while the owners were out of town,\n\n 22. the neighbors’ home and a car belonging to Mr. Pavatt’s\n daughter had contained the same brand of .22 ammunition and\n that ammunition was consistent with what had been used to\n shoot Ms. Andrew,\n\n 23. Ms. Andrew had shown disinterest in planning her husband’s\n funeral and said there was nothing about Rob that she loved, id.\n vol. 11, at 2582, and\n\n 24. Ms. Andrew had fled to Mexico with Mr. Pavatt and her\n children before Rob’s funeral.\n\n\n\n\n 22\n\f Appellate Case: 15-6190 Document: 237-1 Date Filed: 01/13/2026 Page: 23\n\n\n\nAndrew v. White, 62 F.4th 1299, 1306–09, 1319–21 (10th Cir. 2023),\n\njudgment vacated, 604 U.S. 86 (2025). On remand, Ms. Andrew hasn’t\n\nchallenged the existence or strength of this evidence of guilt. 5\n\n E. The alleged stereotyping didn’t concern the central jury\n issues.\n\n Ms. Andrew argues that the trial was fundamentally unfair, relying\n\non federal courts’ recognition of the prejudicial effects of stereotyping. For\n\nsupport, she points to a Supreme Court opinion concerning racial\n\nstereotypes injected into capital proceedings: Buck v. Davis, 580 U.S. 100,\n\n119–122, 128 (2017).\n\n In Buck, a psychologist testified during the sentencing phase of a\n\ntrial for a Black defendant that\n\n • race was a “factor[] . . . known to predict future\n dangerousness” and\n\n\n5\n Ms. Andrew states that the parties “agree that her conviction must be\nset aside even if there was overwhelming evidence of guilt, if the evidence\noffered was unduly prejudicial.” Appellant’s Supp. Resp. Br. at 12 n.10.\nFor this alleged agreement, Ms. Andrew points to a statement of the\nrespondent’s counsel in the first oral argument. There we posed a\nhypothetical question to counsel: In a case involving “a really strong case\nfor guilt,” would there be a limit to the amount of “inadmissible . . .\nharmful, [and] irrelevant” evidence that could be introduced without\ndepriving a defendant of a fundamentally fair trial?” Oral Arg. 39:36–40:03\n(July 27, 2017). The respondent’s counsel acknowledged that this\npossibility could exist in a hypothetical case, but clarified that the sexual\nevidence against Ms. Andrew did not rise to that level. Id. at 40:04–24.\n\n Ms. Andrew apparently misunderstands the respondent’s position:\nThe respondent’s counsel did not agree that the evidence of guilt should be\ndisregarded in assessing the fundamental fairness of the trial.\n 23\n\f Appellate Case: 15-6190 Document: 237-1 Date Filed: 01/13/2026 Page: 24\n\n\n\n • “the race factor, black, increases the future dangerousness for\n various complicated reasons.”\n\n580 U.S. at 107–08 (internal quotation marks & citations omitted). In\n\nclosing argument, the prosecutor referred to the psychologist’s testimony,\n\ntelling the jury that it had “heard from [the psychologist] . . . who told you\n\nthat . . . the probability did exist that [the defendant] would be a\n\ncontinuing threat to society.” Id. at 108.\n\n The Supreme Court concluded that the defendant had shown\n\nprejudice from the psychologist’s testimony. Id. at 119–20. The testimony\n\nappealed to a powerful racial stereotype—that Black men were prone to\n\nviolence. Id. at 121. That stereotype “coincided precisely with the central\n\nquestion at sentencing”: Whether the defendant posed a continuing threat.\n\nId. The prejudice was not cured by the infrequency of the racial references:\n\n“[W]hen a jury hears expert testimony that expressly makes a defendant’s\n\nrace directly pertinent on the question of life or death, the impact of that\n\nevidence cannot be measured simply by how much air time it received at\n\ntrial or how many pages it occupies in the record.” Id. at 121–122.\n\n In contrast, the alleged effort to stereotype Ms. Andrew did not\n\n“coincide[] precisely with the central question” before the jury. Id. at 121.\n\nHere, for example, the prosecution argued that Ms. Andrew had conspired\n\nwith Mr. Pavatt to murder Rob. In response, Ms. Andrew argued that\n\n\n\n\n 24\n\f Appellate Case: 15-6190 Document: 237-1 Date Filed: 01/13/2026 Page: 25\n\n\n\nMr. Pavatt had unilaterally committed the murder to prevent a\n\nreconciliation. Trial Trans. vol. 17, at 3943–63, 4011–4013.\n\n To resolve this dispute, the jury needed to weigh the evidence,\n\nincluding Ms. Andrew’s statements about her feelings toward Rob, her\n\ninteractions with Mr. Pavatt in the runup to the murder, the efforts to\n\nobtain the insurance proceeds, the cutting of Rob’s brake lines, the forensic\n\nmaterials gathered from the crime scene, Ms. Andrew’s demeanor after the\n\nmurder, and her flight to Mexico.\n\n In the closing argument in the guilt phase, the prosecution asked the\n\njury to consider that evidence. Id. at 3860–61, 3891–92 (evidence of the\n\nflight to Mexico); id. at 3862–68, 3875–76, 4108–11 (evidence that\n\nMs. Andrew hated Rob and didn’t want to reconcile with him); id. at 3873\n\n(evidence of Ms. Andrew’s demeanor after the murder); id. at 3880–81,\n\n3895–96 (forensic evidence); id. at 3893–94, 4047–58 (evidence of efforts\n\nto obtain insurance proceeds); id. at 4043–45 (evidence of phone calls\n\nbetween Ms. Andrew and Mr. Pavatt on the day that the brake lines were\n\ncut and the following day); id. at 4114–17 (evidence about the discovery of\n\na shotgun shell from the murder weapon in a nearby house accessible to\n\nMs. Andrew).\n\n The prosecutor did mention the evidence of Ms. Andrew’s affairs\n\nwith Mr. Higgins and Mr. Nunley, id. at 4122–23, and told the jury that the\n\nunderwear in Ms. Andrew’s luggage hadn’t suggested that she was a\n\n 25\n\f Appellate Case: 15-6190 Document: 237-1 Date Filed: 01/13/2026 Page: 26\n\n\n\ngrieving widow, id. at 4101, 4103. But that evidence did not “coincide\n\nprecisely” with “the central question” for the jury—whether Ms. Andrew\n\nhad conspired with Mr. Pavatt to commit the murder.\n\n Ms. Andrew also relies on Bennett v. Stirling, 842 F.3d 319 (4th Cir.\n\n2016). There the prosecutor\n\n • told an all-white jury that “[m]eeting the [Black offender]\n again will be like meeting King Kong on a bad day” and\n\n • called the offender a “caveman,” a “mountain man,” a\n “monster,” a “big old tiger,” and “[t]he beast of burden.”\n\nId. at 321. In addition, a witness described a dream from his hospital stay\n\ninvolving a chase “by murderous, black Indians.” Id. at 321, 326. The\n\nFourth Circuit concluded that the prosecutor ’s use of racial prejudice had\n\nrendered the trial unfair. Id. at 327–28..\n\n Bennett doesn’t suggest a constitutional violation here. In Bennett,\n\nthe Fourth Circuit concluded that the prosecutor ’s racist comments had\n\n“risked reducing [the defendant] to his race” and impaired the jurors’\n\nability to “‘focus their collective judgment on the unique characteristics of\n\na particular criminal defendant.’” Id. at 325 (quoting McCleskey v. Kemp,\n\n481 U.S. 279, 311 (1987)). Ms. Andrew has not shown that the challenged\n\nevidence and argument would have created a similar stereotype involving a\n\npropensity to murder.\n\n We thus conclude that the alleged stereotyping did not substantially\n\nundermine the fundamental fairness of the trial.\n 26\n\f Appellate Case: 15-6190 Document: 237-1 Date Filed: 01/13/2026 Page: 27\n\n\n\n F. The lack of a mitigating instruction does not show that the\n trial was fundamentally unfair.\n\n Finally, we consider “whether the trial court provided any mitigating\n\ninstructions.” Andrew v. White, 604 U.S. 86, 96 (2025) (per curiam).\n\n At trial, Ms. Andrew requested an instruction that would have\n\nprohibited the jury from considering evidence of other misconduct. Trial\n\nTrans. vol. 16, at 3835–36. The trial court declined to give this instruction.\n\nMs. Andrew appealed this ruling, and the state appellate court concluded\n\nthat the failure to give a limiting instruction had constituted harmless\n\nerror. Andrew v. State, 164 P.3d 176, 201 (Okla. Crim App. 2007).\n\n In our view, the failure to give this instruction did not prevent a\n\nreasonable jurist from concluding that the trial been fundamentally fair.\n\nThough the instruction might have tempered the risk of reliance on\n\nirrelevant sexual evidence, the jury had overwhelming evidence of guilt\n\nunrelated to Ms. Andrew’s sexual conduct. See United States v. Esparsen,\n\n930 F.2d 1461, 1476 (10th Cir. 1991) (concluding that a refusal to give an\n\ninstruction limiting consideration of other crimes, wrongs, or acts had been\n\nharmless given the substantial evidence of guilt).\n\n Following the Supreme Court’s instructions, we have considered the\n\nrelevance of the evidence challenged by Ms. Andrew, the degree of\n\nprejudice to her, and the trial court’s failure to provide mitigating\n\ninstructions about the evidence. We conclude that a fair-minded jurist\n\n\n 27\n\f Appellate Case: 15-6190 Document: 237-1 Date Filed: 01/13/2026 Page: 28\n\n\n\ncould doubt infection of the trial “with unfairness.” See Andrew v. White,\n\n604 U.S. 86, 96 (2025) (per curiam) (internal quotation marks & citation\n\nomitted). As a result, we uphold the denial of habeas relief at the guilt\n\nstage.\n\n8. A fair-minded jurist could also reject Ms. Andrew’s challenge as\n to the sentencing phase.\n\n Ms. Andrew also challenges the fairness of her sentencing\n\nproceeding. For this challenge, we assess the reasonableness of the state\n\nappellate court’s decision based on the arguments presented there. See\n\nWellmon v. Colo. Dep’t of Corr., 952 F.3d 1242, 1249 (10th Cir. 2020).\n\n In the state-court appeal, Ms. Andrew pointed to the prosecution’s\n\nclosing argument at the sentencing phase, insisting that Ms. Andrew had\n\nbeen a poor mother because she brought men into the home while the\n\nchildren were there. Trial Trans. vol. 19, at 4394. Ms. Andrew\n\ncharacterized this argument as “an inflammatory, derogatory, and\n\nprejudicial attack” based on “an antiquated belief about the appropriate\n\nbehavior of women.” Appellant’s Opening Br. at 97, Case No. D-2004-1010\n\n(Okla. Crim. App. Feb. 21, 2006) (internal quotation marks & citation\n\nomitted).\n\n But Ms. Andrew didn’t question some of the prosecution’s arguments\n\nthat she challenges now. For example, in state court, Ms. Andrew didn’t\n\nquestion the prosecutor ’s statements that Ms. Andrew\n\n\n 28\n\f Appellate Case: 15-6190 Document: 237-1 Date Filed: 01/13/2026 Page: 29\n\n\n\n • had people “under her spell,”\n\n • was “not like you and me,”\n\n • had not shown any emotion, or remorse, or grief, and\n\n • had “deserve[d] that different kind of punishment that’s\n reserved for people exactly like her.”\n\nTrial Trans. vol 19, at 4410–11, 4493–94. So we will not consider those\n\nstatements when determining whether the Oklahoma Court of Criminal\n\nAppeals acted reasonably in assessing the fairness of the sentencing stage.\n\n We assume for the sake of argument that the evidence of\n\nMs. Andrew’s affairs with Mr. Higgins and Mr. Nunley hadn’t been\n\nrelevant. See p. 19, above. But the other evidence supported two\n\naggravating factors:\n\n 1. Ms. Andrew committed the murder for remuneration or the\n promise of remuneration or employed someone else to commit\n the murder for remuneration or the promise of remuneration.\n\n 2. The murder was especially heinous, atrocious, or cruel.\n\nSee Okla. Stat tit. 21 § 701.12(3)–(4).\n\n In the state-court appeal, Ms. Andrew challenged the sufficiency of\n\nthe evidence on the second aggravating factor (a killing that had been\n\nheinous, atrocious and cruel). But the state appellate court rejected this\n\nchallenge, concluding that the evidence had “tend[ed] to show that Rob . . .\n\n[had] suffered serious physical abuse, and [had been] conscious of the fatal\n\n\n\n 29\n\f Appellate Case: 15-6190 Document: 237-1 Date Filed: 01/13/2026 Page: 30\n\n\n\nattack for several minutes.” Andrew v. State, 164 P.3d 176, 201 (Okla.\n\nCrim. App. 2007). Ms. Andrew doesn’t challenge that conclusion.\n\n For the murder-for-renumeration aggravator, Ms. Andrew challenged\n\nthe trial court’s refusal to give her proposed instruction. The Oklahoma\n\nCourt of Criminal Appeals rejected this challenge, concluding that (1) the\n\nproposed instruction hadn’t accurately stated the law and (2) the actual\n\ninstruction had been correct. Id. at 201–02. Ms. Andrew doesn’t challenge\n\nthese rulings or question the strength of the evidentiary support for the\n\naggravator.\n\n Despite the strong evidentiary support for these aggravating factors,\n\nMs. Andrew argues that the irrelevant evidence and arguments had infected\n\nthe sentencing phase. But Ms. Andrew hasn’t shown that the challenged\n\nevidence and arguments “coincided precisely with the central question[s] at\n\nsentencing” or the use of prohibited grounds to decide between life or\n\ndeath. See Buck v. Davis, 580 U.S. 100, 121 (2017). For example, evidence\n\nof Ms. Andrew’s affairs, appearance, and failure to conform to\n\nconventional gender roles wouldn’t appear to affect the jury’s\n\nconsideration of Rob’s consciousness after the shooting or the existence of\n\na financial motive.\n\n The prosecution did characterize Ms. Andrew as a poor mother, and\n\nthis characterization concerned a sentencing issue. But Ms. Andrew had\n\ninjected this issue by arguing that she was a good mother. Trial Trans.\n\n 30\n\f Appellate Case: 15-6190 Document: 237-1 Date Filed: 01/13/2026 Page: 31\n\n\n\nvol. 19, at 4179 (defense argument to the jury that Ms. Andrew was “a\n\ngood mother who love[d] her children very much, and the death penalty\n\nwould deprive [her children] of their only remaining living parent”). Given\n\nMs. Andrew’s argument, a fair-minded jurist could reject her allegation of\n\nunfair prejudice.\n\n As with the guilt phase of the trial, we have considered the relevance\n\nof the evidence challenged by Ms. Andrew, the degree of prejudice that she\n\nsuffered from its introduction, and the trial court’s failure to provide\n\nmitigating instructions about the evidence. We conclude that a fair-minded\n\njurist could reasonably conclude that the challenged evidence hadn’t\n\ninfected the sentencing proceedings. 6\n\n * *\n\n\n\n\n6\n Ms. Andrew submitted a decision of the Inter-American Commission\non Human Rights, which concluded that the introduction of sexualized\nevidence had violated Ms. Andrew’s human rights. But the Commission’s\ndecision is not binding here. See Tamayo v Stephens, 740 F.3d 991, 997\n(5th Cir. 2014) (concluding that decisions by the Inter-American\nCommission on Human Rights are not binding on domestic courts); Flores-\nNova v. Attorney General of U.S., 652 F.3d 488, 494 (7th Cir. 2011)\n(concluding that “[the Inter-American Commission on Human Rights’]\nadvisory opinions are not binding on the United States and, therefore, they\nare not enforceable domestically”). In addition, the Commission wasn’t\nsubject to the statutory restrictions on habeas relief. See Part 5, above; see\nalso Tamayo, 740 F.3d at 997 (stating that the court could not “address the\nmerits of the [Inter-American Commission on Human Rights] decision by\nway of a federal habeas”).\n\n 31\n\f Appellate Case: 15-6190 Document: 237-1 Date Filed: 01/13/2026 Page: 32\n\n\n\n So we affirm the district court’s denial of habeas relief on\n\nMs. Andrew’s claim involving fundamental fairness of her trial.\n\n\n\n\n 32\n\f Appellate Case: 15-6190 Document: 237-1 Date Filed: 01/13/2026 Page: 33\n\n\n\n15-6190, Andrew v. Tinsley", "author": "BACHARACH, Circuit Judge."}, {"type": "concurrence", "author": "PHILLIPS", "text": "PHILLIPS, J., concurring in the opinion.\n\n I concur in the majority opinion. To assist the reader in understanding the\n\nweight of the evidence, I quote the OCCA’s findings in its decision, which we\n\nincorporated into our earlier majority opinion:\n\n [Ms. Andrew]’s husband Robert (“Rob”) Andrew was shot to death at their\n Oklahoma City home sometime around 7:00 p.m. on November 20, 2001.\n [Ms. Andrew] was also shot in the arm during this incident.\n\n The Andrews were separated at the time and Rob Andrew was at the home\n to pickup [sic] the two minor children for visitation over the Thanksgiving\n holiday. The custom was that [Ms. Andrew] would bring the children out to\n the car and Rob would take them from there. However, on this night, [Ms.\n Andrew] asked Rob Andrew to come into the garage to light the pilot light\n on the furnace because it had gone out.\n\n [Ms. Andrew]’s version of the events from that point on was that as Rob was\n trying to light the furnace, two masked men entered the garage. Rob turned\n to face the men and was shot in the abdomen. He grabbed a bag of aluminum\n cans to defend himself and was shot again. [Ms. Andrew] was hit during this\n second shot.\n\n Undisputed facts showed that after that, [Ms. Andrew] called 911 and\n reported that her husband had been shot. Emergency personnel arrived and\n found Rob Andrew’s body on the floor of the garage; he had suffered\n extensive blood loss and they were unable to revive him. [Ms. Andrew] had\n also suffered a superficial gunshot wound to her arm. The Andrew children\n were found in a bedroom, watching television with the volume turned up\n very high, oblivious to what had happened in the garage.\n\n [Ms. Andrew] was taken to a local hospital for treatment. Her behavior was\n described by several witnesses, experienced in dealing with people in\n traumatic situations, as uncharacteristically calm for a woman whose\n husband had just been gunned down.\n\n Rob Andrew was shot twice with a shotgun. A spent 16–gauge shotgun shell\n was found in the garage on top of the family van. Rob Andrew owned a 16–\n gauge shotgun, but had told several friends that [Ms. Andrew] refused to let\n him take it when they separated. Rob Andrew’s shotgun was missing from\n\fAppellate Case: 15-6190 Document: 237-1 Date Filed: 01/13/2026 Page: 34\n\n\n\n the home. One witness testified to seeing [Ms. Andrew] at an area used for\n firearm target practice near her family’s rural Garfield County home eight\n days before the murder and he later found several 16–gauge shotgun shells\n at the site.\n\n [Ms. Andrew]’s superficial wound was caused by a .22 caliber bullet,\n apparently fired at close range, which was inconsistent with her claim that\n she was shot at some distance. About a week before the murder, [James]\n Pavatt purchased a .22 caliber handgun from a local gun shop. Janna Larson,\n Pavatt’s daughter testified that, on the day of the murder, Pavatt borrowed\n her car and claimed he was going to have it serviced for her. When he\n returned it the morning after the murder, the car had not been serviced, but\n Larson found one round of .22 caliber rimfire ammunition on the floorboard.\n In a conversation later that day, Pavatt told Larson never to repeat that [Ms.\n Andrew] had asked him to kill Rob Andrew, and he threatened to kill Larson\n if she did. He also told her to throw away the .22 round she found in her car.\n\n Police searched the home of Dean Gigstad, the Andrews’ next-door\n neighbor, after the Gigstads reported finding suspicious things in their home.\n Police found evidence that someone had entered the Gigstads’ attic through\n an opening in a bedroom closet. A spent 16 gauge shotgun shell was found\n on the bedroom floor, and several .22 caliber rounds were found in the attic\n itself. There were no signs of forced entry into the Gigstad home. Gigstad\n and his wife were out of town when the murder took place, but [Ms. Andrew]\n had a key to their home. The .22 caliber round found in Janna Larson’s car\n was of the same brand as the three .22 caliber rounds found in the Gigstads’\n attic; the .22 caliber bullet fired at [Ms. Andrew] and retrieved from the\n Andrews’ garage appeared consistent with bullets in these unfired rounds.\n These rounds were capable of being fired from the firearm that Pavatt\n purchased a few weeks before the murder; further testing was not possible\n because that gun was never found. The 16 gauge shotgun shell found in the\n Gigstads’ home was of the same brand as the 16 gauge shell found in the\n Andrews’ garage. Ballistics comparison showed similar markings, indicating\n that they could have been fired from the same weapon. Whether these shells\n were fired from the 16–gauge shotgun Rob Andrew had left at the home was\n impossible to confirm because, as noted, that gun remains missing.\n\n Within days after the shooting, before Rob Andrew’s funeral, [Ms. Andrew],\n James Pavatt and the two minor children left the State and crossed the border\n into Mexico. They were apprehended while attempting to re-enter the United\n States in late February 2002.\n\n [Ms. Andrew] and Pavatt met while attending the same church. At some\n\n 2\n\fAppellate Case: 15-6190 Document: 237-1 Date Filed: 01/13/2026 Page: 35\n\n\n\n point they began teaching a Sunday school class together. [Ms. Andrew] and\n Pavatt began having a sexual relationship. Around the same time, Pavatt, a\n life insurance agent, assisted Rob Andrew in setting up a life insurance policy\n through Prudential worth approximately $800,000. In late September 2001,\n Rob Andrew moved out of the family home, and [Ms. Andrew] initiated\n divorce proceedings a short time later.\n\n Janna Larson, Pavatt’s adult daughter, testified that in late October, Pavatt\n told her that [Ms. Andrew] had asked him to murder Rob Andrew. On the\n night of October 25–26, 2001, someone cut the brake lines on Rob Andrew’s\n automobile. The next morning, Pavatt persuaded his daughter to call Rob\n Andrew from an untraceable phone and claim that [Ms. Andrew] was at a\n hospital in Norman, Oklahoma, and needed him immediately. An unknown\n male also called Rob that morning and made the same plea. Rob Andrew’s\n cell phone records showed that one call came from a pay phone in Norman\n (near Larson’s workplace), and the other from a pay phone in south\n Oklahoma City. Rob Andrew discovered the tampering to his car before\n placing himself in any danger. He then notified the police. The next day, [Ms.\n Andrew] told Rob that she read in the newspaper that someone cut his brakes,\n but no media coverage of this event had occurred.\n\n One contentious issue in the Andrews’ relationship was control over the\n insurance policy on Rob Andrew’s life. After his brake lines were cut, Rob\n Andrew inquired about removing [Ms. Andrew] as beneficiary of his life\n insurance policy. Rob Andrew spoke with Pavatt’s supervisor about\n changing the beneficiary. He also related his suspicions that Pavatt and [Ms.\n Andrew] were trying to kill him. At trial, the State presented evidence that in\n the months preceding the murder, [Ms. Andrew] and Pavatt actually\n attempted to transfer ownership of the insurance policy to [Ms. Andrew]\n without Rob Andrew’s knowledge, by forging his signature to a change-of-\n ownership form and backdating it to March 2001.\n\n In the days following the murder, Pavatt obtained information over the\n Internet about Argentina, because he had heard that country had no\n extradition agreement with the United States. Larson also testified that after\n the murder, [Ms. Andrew] and Pavatt asked her to help them create a\n document, with the forged signature of Rob Andrew, granting permission for\n his children to travel with [Ms. Andrew] out of the country. [Ms. Andrew]\n also asked Larson to transfer funds from her bank account to Larson’s own\n account, so that Larson might wire them money after they left town.\n\n [Ms. Andrew] did not attend her husband’s funeral, choosing instead, to go\n to Mexico with Pavatt and the children. Pavatt called his daughter several\n\n 3\n\f Appellate Case: 15-6190 Document: 237-1 Date Filed: 01/13/2026 Page: 36\n\n\n\n times from Mexico and asked her to send them money. Larson cooperated\n with the FBI and local authorities in trying to track down the pair.\n\n After her apprehension, [Ms. Andrew] came into contact with Teresa\n Sullivan, who was a federal inmate at the Oklahoma County jail. Sullivan\n testified that [Ms. Andrew] told her that she and Pavatt killed her husband\n for the money, the kids, and each other. [Ms. Andrew] also told her that\n Pavatt shot her in the arm to make it look as if she was a victim.\n\n Expert testimony opined that the wound to [Ms. Andrew]’s arm was not self-\n inflicted, but was part of a scheme to stage the scene to make it look like she\n was a victim, just like her husband.\n\nAndrew v. State (Andrew I), 164 P.3d 176, 184–85 (Okla. Crim. App. 2007) (paragraph\n\nnumbers and footnotes omitted), as corrected (July 9, 2007), opinion corrected on denial\n\nof reh’g, 168 P.3d 1150. 1\n\n\n\n\n Ms. Andrew does not challenge these factual findings, and without clear\n 1\n\nand convincing evidence to the contrary, we presume them to be correct.\nLockett v. Trammel, 711 F.3d 1218, 1222 (10th Cir. 2013); see also 28 U.S.C.\n§ 2254(e)(1).\n\n 4"}]}	HARTZ	BACHARACH	PHILLIPS	1		{"HARTZ": ", Circuit", "BACHARACH": ", Circuit", "PHILLIPS": ", Circuit"}	2	0	1	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10773794/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,775,421	United States v. Mullins	2026-01-16	24-7003	U.S. Court of Appeals for the Tenth Circuit	{"judges": "Before PHILLIPS, KELLY, and MORITZ, Circuit Judges.", "parties": "", "opinions": [{"author": "PHILLIPS, Circuit Judge.", "type": "010combined", "text": "Appellate Case: 24-7003 Document: 74-1 Date Filed: 01/16/2026 Page: 1\n FILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS January 16, 2026\n\n Christopher M. Wolpert\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\nv. No. 24-7003\n\nTYLER JAY MULLINS,\n\n Defendant - Appellant.\n _________________________________\n\n Appeal from the United States District Court\n for the Eastern District of Oklahoma\n (D.C. No. 6:21-CR-00060-CBG-1)\n _________________________________\n\nKatayoun A. Donnelly, Azizpour Donnelly LLC, Denver, Colorado, for\nDefendant-Appellant.\n\nPatrick M. Flanigan, Assistant United States Attorney (Christopher J. Wilson,\nUnited States Attorney, with him on the brief), Muskogee, Oklahoma, for\nPlaintiff-Appellee.\n _________________________________\n\nBefore PHILLIPS, KELLY, and MORITZ, Circuit Judges.\n _________________________________\n\nPHILLIPS, Circuit Judge.\n _________________________________\n\n In 2002, Tyler Jay Mullins pleaded guilty in Oklahoma state court to\n\nmurdering his ex-girlfriend. But after the Supreme Court’s decision in McGirt\n\nv. Oklahoma, 591 U.S. 894 (2020), the state court vacated his conviction for\n\f Appellate Case: 24-7003 Document: 74-1 Date Filed: 01/16/2026 Page: 2\n\n\n\nlack of jurisdiction. Soon after, a federal grand jury charged Mullins with\n\nmurder in Indian country, in violation of 18 U.S.C. §§ 1111(a), 1151, and 1153;\n\nusing, carrying, and discharging a firearm during and in relation to a crime of\n\nviolence, in violation of 18 U.S.C. § 924(c)(1)(A)(i)–(iii); and causing the\n\ndeath and murder of another while violating 18 U.S.C. § 924(c), in violation of\n\n18 U.S.C. § 924(j)(1). The district court dismissed the § 924(c) count as time-\n\nbarred. A jury convicted Mullins on the other two counts.\n\n Mullins now appeals. He argues that the district court erred in three\n\nways: (1) by denying his motions to stay proceedings or dismiss the indictment\n\nfor substantial failure to comply with the Jury Selection and Service Act, 28\n\nU.S.C. §§ 1861–78; (2) by denying his motion to suppress his statements\n\ndirecting law enforcement to the location of his ex-girlfriend’s body; and (3) by\n\ndenying his motion to compel disclosure of communications between the\n\ngovernment and his former counsel.\n\n Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. First, because\n\nMullins never satisfied the Jury Act’s procedural requirements, the district\n\ncourt did not err in denying his Jury Act motions. Second, because Mullins did\n\nnot direct officers to his ex-girlfriend’s body during plea discussions with the\n\nprosecuting authority, the court did not err in denying his motion to suppress.\n\nAnd third, even if the court erred in denying Mullins’s motion to compel, that\n\nerror was harmless.\n\n\n\n 2\n\f Appellate Case: 24-7003 Document: 74-1 Date Filed: 01/16/2026 Page: 3\n\n\n\n BACKGROUND\n\nI. Factual Background\n\n Early one morning in 2002, Rachel Woodall disappeared from her home\n\nin Ada, Oklahoma. Woodall’s ex-boyfriend Tyler Mullins quickly became a\n\nsuspect.\n\n A neighbor had seen him rifling through Woodall’s car the morning she\n\ndisappeared. And later that morning, Mullins had called Woodall’s mother and\n\nboyfriend. Mullins acted oddly on the calls and asked about Woodall’s\n\nwhereabouts.\n\n When officers located Mullins soon after, he had several superficial\n\ninjuries. Though he claimed some guys beat him up, his injuries seemed\n\ninconsistent with that claim. For example, he had several “fingernail-like\n\nscratches” and bruising on his right hand.\n\n Later that day, officers searched Mullins’s car and house. They found\n\nblood in his car trunk. They also found bloodstained shoes in his house.\n\n The next day, after speaking with his attorney, Mullins led law\n\nenforcement to Woodall’s body. She was buried in a shallow grave and\n\nwrapped in a blue tarp. She also had several injuries, including three gunshot\n\nwounds to the head.\n\n\n\n\n 3\n\f Appellate Case: 24-7003 Document: 74-1 Date Filed: 01/16/2026 Page: 4\n\n\n\nII. Procedural History\n\n A. State Proceedings\n\n Oklahoma charged Mullins with first-degree murder. He pleaded guilty\n\nabout eight months later, and the state court sentenced him to life without\n\nparole.\n\n About seventeen years after that, the Supreme Court decided McGirt.\n\nThere, the Court held that some portions of eastern Oklahoma were Indian\n\ncountry. 591 U.S. at 897–98. And under the Major Crimes Act, only the federal\n\ngovernment can prosecute certain crimes committed by Indians in Indian\n\ncountry. Id. at 932; see also 18 U.S.C. § 1153.\n\n Because Mullins was an enrolled member of a federally recognized\n\nIndian tribe and the crime occurred within the Chickasaw Nation Reservation, 1\n\nOklahoma had lacked jurisdiction to prosecute him. As a result, a state-court\n\njudge granted Mullins’s request for post-conviction relief.\n\n B. Federal Proceedings\n\n In 2021, a federal grand jury indicted Mullins for (1) murder in Indian\n\ncountry, in violation of 18 U.S.C. §§ 1111(a), 1151, and 1153; and (2) causing\n\nthe death and murder of a person while violating 18 U.S.C. § 924(c), in\n\n\n\n In Bosse v. Oklahoma, the Oklahoma Court of Criminal Appeals held\n 1\n\nthat “the Chickasaw Reservation was never disestablished by Congress, and the\nlands within its historic boundaries are Indian Country.” 499 P.3d 771, 774\n(Okla. Crim. App. 2021) (citing 18 U.S.C. § 1151).\n\n 4\n\f Appellate Case: 24-7003 Document: 74-1 Date Filed: 01/16/2026 Page: 5\n\n\n\nviolation of 18 U.S.C. § 924(j)(1). 2 A jury ultimately convicted Mullins on both\n\ncounts.\n\n Three district-court rulings take center stage. We detail them below.\n\n 1. Motion to Suppress under Federal Rule of Evidence\n 410(a)(4)\n\n Before trial, Mullins moved to suppress his statements directing law-\n\nenforcement officers to Woodall’s body, as well as all derivative evidence.\n\nMullins argued that he made these statements during plea negotiations, making\n\nthem inadmissible under Federal Rule of Evidence 410. That rule prevents the\n\ngovernment from using against a defendant any “statement made during plea\n\ndiscussions with an attorney for the prosecuting authority if the discussions . . .\n\nresulted in a later-withdrawn guilty plea.” Fed. R. Evid. 410(a)(4).\n\n The government opposed, arguing that the prosecutor never engaged in\n\nplea discussions with Mullins or his counsel. It also emphasized that Mullins\n\ngave law-enforcement officers, not the prosecutor, directions to Woodall’s\n\nbody.\n\n a. Hearing\n\n The district court held a hearing on the motion. Three witnesses\n\ntestified: former county Assistant District Attorney Chris Ross, Mullins’s\n\n\n\n\n The grand jury also charged Mullins for using a firearm during and in\n 2\n\nrelation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(i)–(iii).\nThe district court later dismissed that count as time-barred.\n 5\n\f Appellate Case: 24-7003 Document: 74-1 Date Filed: 01/16/2026 Page: 6\n\n\n\nformer counsel Frank Stout, and Mullins. Below, we summarize the district\n\ncourt’s factual findings from their testimony.\n\n The day Woodall disappeared, Mullins agreed to speak with officers at\n\nthe police station. United States v. Mullins, No. CR-21-60, 2022 WL 2306819,\n\nat 1 (E.D. Okla. June 27, 2022). Soon after, Mullins’s uncle, Harry Jordan,\n\nretained Stout to represent Mullins. Id. Sometime that day, Stout spoke with\n\nRoss about Woodall’s body. Id. at 2. According to Stout, Ross said that—if\n\nMullins revealed Woodall’s location—Ross would not seek the death penalty. 3\n\nId. In contrast, Ross testified that Stout approached him about the body’s\n\nlocation and that he told Stout he had no interest in making a deal. Id.\n\n Ross also testified that Jordan called him the next day to discuss Mullins.\n\nId. Jordan asked what would happen to Mullins; Ross responded that he could\n\nnot say, but that “the worst he could do was ask for the death penalty.” Id.\n\n(citation modified).\n\n Later that day, Stout told police that Mullins would take them to\n\nWoodall’s body. Id. Officers from various agencies formed a “caravan” of cars\n\nand drove to the body’s location. Id. Stout, Mullins, and some law-enforcement\n\nofficers rode together in a bus, while Ross drove in his own car at the end of\n\nthe caravan. Id. Based on Mullins’s directions, law-enforcement officers found\n\n\n\n\n 3\n Mullins also testified that he believed he would get “a lighter sentence”\nby disclosing Woodall’s location. Mullins, 2022 WL 2306819, at 2.\n 6\n\f Appellate Case: 24-7003 Document: 74-1 Date Filed: 01/16/2026 Page: 7\n\n\n\nWoodall’s body buried and wrapped in a tarp. Id. The next day, the state\n\ncharged Mullins with Woodall’s murder. Id.\n\n Stout stopped representing Mullins about a month later. Id. About seven\n\nmonths after that, Mullins entered a blind guilty plea, and the state court\n\nsentenced him to life imprisonment. Id.\n\n b. Ruling\n\n After hearing the witnesses’ testimony, the district court denied\n\nMullins’s suppression motion. Id. at 7. The court assumed Stout’s version of\n\nevents was true. Id. at 2. But it determined that, because Mullins directed law-\n\nenforcement officers—not the prosecutor—to Woodall’s body, Rule 410(a)(4)\n\ndid not apply. Id. at 4.\n\n That said, the district court acknowledged two “exceptions” to its\n\ninterpretation of Rule 410(a)(4). Id. at 5. It noted that some courts have\n\napplied the rule to conversations with police when the defendant had a\n\nreasonable subjective belief that he was speaking during plea negotiations. Id.\n\nAnd other courts have applied it when officers had express authority to\n\nnegotiate a plea. See id. Even so, the district court ruled that neither exception\n\napplied because Mullins “ha[d] not presented facts to support the application of\n\neither of these exceptions.” Id.\n\n The court also rejected Mullins’s request that it suppress all evidence\n\nderived from his statements. Id. Noting that Mullins had “no authority to\n\nsupport a finding that Rule 410(a)(4) is so far reaching,” the court concluded\n\n 7\n\f Appellate Case: 24-7003 Document: 74-1 Date Filed: 01/16/2026 Page: 8\n\n\n\nthat the rule’s plain language applied only to statements made during plea\n\ndiscussions. See id. Thus, the court reasoned that even if Rule 410(a)(4) applied\n\nto Mullins’s statements about the body, it would not exclude any derivative\n\nevidence. Id. at 6.\n\n 2. Motion to Compel under Federal Rule of Criminal\n Procedure 16(a)(1)(E)\n\n Mullins also moved to compel production of communications between the\n\ngovernment and Robert Gifford, his former counsel in his federal case. Gifford\n\nwas defense co-counsel for about seven months. After Gifford withdrew from\n\nthe case, Mullins grew concerned that Gifford had disclosed attorney-client\n\nprivileged information and failed to act in his best interest. So Mullins asked\n\nthe government to provide its communications with Gifford. When the\n\ngovernment failed to respond, Mullins moved the court to compel disclosure,\n\nsuggesting the communications would support an ineffective-assistance claim.\n\n The government opposed the motion, asserting that none of the\n\ncommunications included attorney-client privileged information. It also argued\n\nthat the documents were not material to the defense, nor something the\n\ngovernment planned to use at trial. Plus, the government noted that it did not\n\nobtain the records from Mullins and that he could “mak[e] a written demand of\n\nMr. Gifford” for the documents. R. vol. I at 422.\n\n\n\n\n 8\n\f Appellate Case: 24-7003 Document: 74-1 Date Filed: 01/16/2026 Page: 9\n\n\n\n a. Hearing\n\n The court held a hearing to discuss outstanding motions before trial. It\n\nbriefly addressed Mullins’s motion to compel:\n\n [I]t appears . . . that these communications would not fall in\n something that would be discoverable under Rule 16 of the Federal\n Rules of Criminal Procedure. That said, I suppose that there is some\n small possibility that material or facts were disclosed by Mr. Gifford\n in the course of communications with counsel for the government in\n a way that would cause the Court to need to address some issue about\n effective assistance of counsel.\n\nR. vol. III at 41. So the court reviewed the documents in camera.\n\n b. Ruling\n\n After reviewing the communications, the court denied Mullins’s motion.\n\nIt concluded that the documents were not discoverable under Rule 16(a)(1)(E),\n\nnor did they reflect any inappropriate disclosures by Gifford. The court\n\nemphasized, though, that it did “not address the ability of [Mullins] to obtain\n\nany such document, from the Government or from Mr. Gifford directly, for\n\nanother purpose or in another proceeding.” R. vol. I at 426.\n\n 3. Jury Act Motions under 28 U.S.C. § 1867\n\n a. Pretrial Motion\n\n Before voir dire, Mullins orally moved to dismiss the indictment and stay\n\nproceedings under the Jury Act. He argued that the jury pool was neither\n\nrandomly selected nor a fair cross-section of the community. For example, he\n\nnoted that seven people from the jury pool came from Ada, Oklahoma, which\n\nhe claimed was statistically unlikely. He suggested that this could “affect[]\n\n 9\n\f Appellate Case: 24-7003 Document: 74-1 Date Filed: 01/16/2026 Page: 10\n\n\n\n[him] in a racially discriminatory manner” because some counties with more\n\ndiverse populations were underrepresented. See R. vol. III at 58.\n\n The district court denied the motion. It reasoned that “[t]he group of\n\npotential jurors here was selected through an established process for the\n\nEastern District of Oklahoma based on a cross section of persons in that district\n\neligible to serve on juries.” Id. at 59. The court determined that “[t]he mere fact\n\nthat the process may have resulted in a higher-than-average number of potential\n\njurors from a certain area does not mean that a particular area was purposely\n\nfavored or disfavored.” Id. The court also noted that “[r]andom selection can\n\nresult in clusters, and that may have been the case here.” Id.\n\n The parties then selected a jury and went to trial.\n\n b. Trial Motions\n\n Mullins raised his Jury Act motion twice more during trial. The court\n\ndenied them for the same reasons as before.\n\n c. Post-trial Motion\n\n Mullins renewed his Jury Act motion again three days after the verdict.\n\nThis time, he attached a sworn statement from his counsel supporting his\n\nclaims. Mullins noted that under 28 U.S.C. § 1867(d), if a sworn statement of\n\nfacts, taken as true, “would constitute a substantial failure to comply with” the\n\nJury Act, then the movant is “entitled to present” supporting evidence. R. vol. I\n\n\n\n\n 10\n\f Appellate Case: 24-7003 Document: 74-1 Date Filed: 01/16/2026 Page: 11\n\n\n\nat 609 (citation modified). Mullins argued that his renewed motion satisfied\n\nthis standard and merited a hearing.\n\n First, he claimed that the odds of seven jurors coming from Ada was “so\n\nremote that it had to be intentionally done.” Id. at 611. In support, his motion\n\ncontained statistics about the number of jurors from each county in the jury\n\npool and those counties’ demographics. Second, he argued that the jury pool\n\nhad a disproportionate number of women and—based on his and his family’s\n\nobservations—lacked Native American and African American jurors.\n\n The government opposed the motion as untimely and meritless. The\n\ndistrict court agreed. On timeliness, it explained that defendants must bring\n\nJury Act motions either before voir dire “or within seven days after the\n\ndefendant discovered . . . the grounds” for the motion, “whichever is earlier.”\n\nUnited States v. Mullins, No. CR-21-60, 2023 WL 6323079, at 2 (E.D. Okla.\n\nSept. 28, 2023) (citation modified). Because Mullins renewed his motion three\n\ndays after trial, the court found it “untimely and procedurally barred.” Id.\n\n As for the merits, the court held that Mullins failed to show “a deviation”\n\nfrom the Eastern District’s established jury plan. Id. at 3. What’s more,\n\nMullins made only “visual observations” to support his claim that the jury pool\n\nwas not a fair cross-section of the community. Id. at 4. The court found this\n\ninsufficient to establish “systematic exclusion of Native Americans or African\n\nAmericans” in the jury-selection process. Id.\n\n\n\n 11\n\f Appellate Case: 24-7003 Document: 74-1 Date Filed: 01/16/2026 Page: 12\n\n\n\n 4. Jury Trial\n\n To briefly recap Mullins’s trial, nine witnesses testified for the\n\ngovernment. One witness testified that, the night before the murder, Mullins\n\nkept asking whether Woodall’s roommate would be home that night. Woodall’s\n\nneighbor testified that he saw Mullins outside Woodall’s house the morning of\n\nthe murder and watched him rifle through her car. Next, both Woodall’s\n\nboyfriend and her mother testified about strange phone calls they received from\n\nMullins that morning asking about Woodall’s whereabouts.\n\n The government also called Stout, who explained that Mullins led law-\n\nenforcement officers to Woodall’s body. The next several witnesses testified\n\nabout evidence recovered from Mullins’s house, his car, and the crime scene.\n\nAnd an FBI agent testified that about a year after the murder, Mullins\n\n“volunteered that he had killed Rachel Woodall” during an unrelated interview.\n\nR. vol. III at 347–48.\n\n On the defense side, both Mullins and his mother testified. 4 Mullins\n\nadmitted to killing Woodall but suggested he did so in self-defense. In brief, he\n\ntestified that he went to Woodall’s house the morning of the murder to talk to\n\nher, but she didn’t answer the door. So he went into her car to leave her a note.\n\nThere, he found her journal, read it, and left with it.\n\n\n\n\n 4\n Mullins’s mother testified about his decision to plead guilty in state\ncourt.\n 12\n\f Appellate Case: 24-7003 Document: 74-1 Date Filed: 01/16/2026 Page: 13\n\n\n\n Woodall called him soon after, so he went back to her house and picked\n\nher up. While they were driving, they started fighting about things she wrote in\n\nher journal. The fight turned physical, and she hit or scratched him. So he\n\npulled off the highway onto a side road.\n\n Mullins stopped the car, got out, and grabbed the journal from his trunk.\n\nWhen Woodall saw he had her journal, she got angry and tried to hit him.\n\nMullins walked back to the driver’s seat and asked her to get in the car. Then\n\nhe saw her approaching him with his gun, which he kept in his trunk, pointed at\n\nhim.\n\n Scared, Mullins tried to get away. He found a tire rim on the ground and\n\nheld it between him and the gun. He heard something click and “just snapped,”\n\nswinging the tire rim at Woodall. He could not remember how many times he\n\nhit her—he swung the rim until it flew out of his hand.\n\n Woodall, lying on the ground, was not moving. Thinking she was dead,\n\nMullins wrapped her in a tarp, put her in the trunk, and drove to a gravel pit.\n\nAfter placing Woodall in a shallow grave, he considered shooting himself; but\n\ninstead, he pointed the gun at the ground and started shooting, hitting Woodall\n\nmultiple times in the head. He then covered the tarp with dirt and drove away.\n\n 5. Verdict, Sentencing & Appeal\n\n The jury found Mullins guilty on both counts. The district court\n\nsentenced him to two concurrent life sentences. He timely appealed.\n\n\n\n 13\n\f Appellate Case: 24-7003 Document: 74-1 Date Filed: 01/16/2026 Page: 14\n\n\n\n Mullins argues that the court reversibly erred by (1) denying his Jury Act\n\nmotions, (2) denying his motion to suppress his statements directing officers to\n\nWoodall’s body, and (3) denying his motion to compel disclosure of Gifford’s\n\ncommunications with the government. We disagree and affirm.\n\n DISCUSSION\n\nI. Jury Act Motions\n\n First, Mullins challenges the district court’s denials of his motions for\n\nrelief under the Jury Act.\n\n A. Standard of Review\n\n We review de novo a district court’s legal conclusions “involving a jury-\n\ncomposition claim.” United States v. Kamahele, 748 F.3d 984, 1022 (10th Cir.\n\n2014). We review the court’s factual findings for clear error. Id. “A finding of\n\nfact is clearly erroneous only if it is without factual support in the record” or if,\n\nafter reviewing the evidence, we are “left with a definite and firm conviction\n\nthat a mistake has been made.” United States v. Craine, 995 F.3d 1139, 1157\n\n(10th Cir. 2021) (citation omitted).\n\n B. Analysis\n\n The Jury Act gives federal defendants entitled to a jury trial “the right to\n\ngrand and petit juries selected at random from a fair cross section of the\n\ncommunity in the district or division wherein the court convenes.” 28 U.S.C.\n\n§ 1861. Every federal district court must implement “a written plan for random\n\n\n\n 14\n\f Appellate Case: 24-7003 Document: 74-1 Date Filed: 01/16/2026 Page: 15\n\n\n\nselection” of jurors that is “designed to achieve” the Act’s objectives. Id.\n\n§ 1863(a).\n\n Section 1867 provides “the exclusive means by which a person accused\n\nof a Federal crime[] . . . may challenge any jury on the ground that such jury\n\nwas not selected in conformity with” the Act. Id. § 1867(e). And § 1867(a)\n\nstates that\n\n before the voir dire examination begins, or within seven days after\n the defendant discovered or could have discovered, by the exercise\n of diligence, the grounds therefor, whichever is earlier, the\n defendant may move to dismiss the indictment or stay the\n proceedings against him on the ground of substantial failure to\n comply with the provisions of this title in selecting the grand or petit\n jury.\n\n Such motions must “contain[] a sworn statement of facts.” Id. § 1867(d);\n\nUnited States v. Stein, 985 F.3d 1254, 1262 (10th Cir. 2021). And when the\n\nsworn statement of facts, “if true, would constitute a substantial failure to\n\ncomply” with the Act, the movant “shall be entitled to present in support of\n\nsuch motion the testimony of the jury commission or clerk, if available, any\n\nrelevant records and papers not public or otherwise available used by the jury\n\ncommissioner or clerk, and any other relevant evidence.” Id. § 1867(d).\n\n If the court finds a substantial failure to comply with the Act in selecting\n\nthe grand jury, it shall either “stay the proceedings pending the selection of a\n\ngrand jury in conformity with this title or dismiss the indictment.” Id. On the\n\nother hand, if there’s a substantial failure to comply “in selecting the petit jury,\n\n\n\n 15\n\f Appellate Case: 24-7003 Document: 74-1 Date Filed: 01/16/2026 Page: 16\n\n\n\nthe court shall stay the proceedings pending the selection of a petit jury in\n\nconformity with this title.” Id. (emphasis added).\n\n “Strict compliance with [the Jury Act’s] procedural requirements is\n\nessential.” Stein, 985 F.3d at 1262 (citation omitted). This is because the Act’s\n\nprocedural requirements were “designed to give the district court an\n\nopportunity to evaluate the alleged noncompliance and to correct such\n\nnoncompliance before precious judicial resources are invested in a trial.”\n\nUnited States v. Contreras, 108 F.3d 1255, 1266 (10th Cir. 1997).\n\n Mullins moved four times to stay proceedings or dismiss the indictment\n\nfor noncompliance with the Jury Act. 5 The district court denied all four\n\nmotions. That wasn’t error, because each motion failed to satisfy the Act’s\n\nprocedural requirements.\n\n Start with Mullins’s motion on the first day of trial. He moved to stay\n\nproceedings “before the voir dire examination” began, so this motion was\n\ntimely. See 28 U.S.C. § 1867(a). Yet it lacked a sworn statement of facts.\n\n We have held that if a defendant fails “to accompany [his] motion[]\n\nchallenging the jury selection process with a sworn affidavit,” then his Jury Act\n\nclaim “is precluded.” Contreras, 108 F.3d at 1267–68; see also United States v.\n\nCooper, 733 F.3d 1360, 1366 (10th Cir. 1984). Thus, because Mullins’s motion\n\n\n\n 5\n We note that because Mullins’s Jury Act motions centered on the petit\njury, dismissal was not an available remedy. See 28 U.S.C. § 1867(d).\n\n 16\n\f Appellate Case: 24-7003 Document: 74-1 Date Filed: 01/16/2026 Page: 17\n\n\n\nlacked a sworn statement of facts, his first Jury Act motion was procedurally\n\nbarred. 6 See Contreras, 108 F.3d at 1267–68.\n\n Next, consider the two motions Mullins raised during trial. Neither\n\ncontained a sworn statement of facts. Like the first motion, this failure\n\n“precluded” Mullins’s Jury Act claim. See id.\n\n What’s more, the motions were untimely, too. Under 28 U.S.C.\n\n§ 1867(a), a defendant must move to stay proceedings “before the voir dire\n\nexamination begins, or within seven days after the defendant discovered or\n\ncould have discovered[] . . . the grounds therefor, whichever is earlier.”\n\nBecause Mullins raised these motions after voir dire, they were untimely. See\n\nUnited States v. Phillips, 239 F.3d 829, 840–41 (7th Cir. 2001) (concluding that\n\nJury Act motion “made orally approximately three-quarters of the way into voir\n\ndire” was untimely).\n\n Finally, turn to Mullins’s renewed Jury Act motion, raised three days\n\nafter trial ended. This time, he included a sworn statement of facts. So his final\n\nmotion complied with § 1867(d)’s procedural requirements. But like the last\n\ntwo motions, his final motion was untimely because he filed it after voir dire.\n\n\n\n\n 6\n The district court denied Mullins’s first motion on the merits. But we\ncan affirm “on any ground supported by the record.” United States v. Spradley,\n146 F.4th 949, 958 (10th Cir. 2025); see also Stein, 985 F.3d at 1263 (holding\nthat we may “affirm[] the district court’s judgment on [procedural] ground[s],\neven though the court did not address any procedural deficiencies of the [Jury\nAct] motion”).\n 17\n\f Appellate Case: 24-7003 Document: 74-1 Date Filed: 01/16/2026 Page: 18\n\n\n\nSee id. As a result, his final motion did not comply with § 1867(a)’s procedural\n\nrequirements.\n\n Mullins emphasizes that he filed the final motion less than seven days\n\nafter he discovered the alleged noncompliance. But his motion was still\n\nuntimely under § 1867(a). Again, defendants must move for Jury Act relief\n\n“before the voir dire examination” or “within seven days after [they]\n\ndiscovered or could have discovered[] . . . the grounds therefor, whichever is\n\nearlier.” See 28 U.S.C. § 1867(a) (emphasis added).\n\n Put differently, Mullins had to file his motion “no later than before the\n\nvoir dire examination begins.” United States v. DeFries, 129 F.3d 1293, 1299\n\n(D.C. Cir. 1997) (citation modified); see also United States v. Rosbottom, 763\n\nF.3d 408, 416 (5th Cir. 2014) (“It is obvious that the commencement of voir\n\ndire is the cut-off point for challenges under the Act, both under its express\n\nterms and because the only remedy it provides is a stay in the proceedings until\n\na jury can be selected in conformity with the statute.” (citation modified)). 7 So\n\nby raising his renewed Jury Act motion after voir dire, Mullins failed to comply\n\nwith the Act’s procedural requirements. See Phillips, 239 F.3d at 840.\n\n\n\n\n 7\n We note that both DeFries and Rosbottom suggest that there may be an\nexception to the Jury Act’s procedural requirements when “counsel could not\nreasonably have been expected to comply with the procedural prerequisites to a\nstatutory challenge to the jury.” DeFries, 129 F.3d at 188 (citation omitted);\nsee also Rosbottom, 763 F.3d at 415. Because Mullins never argues that such an\nexception applies, we need not consider it here.\n 18\n\f Appellate Case: 24-7003 Document: 74-1 Date Filed: 01/16/2026 Page: 19\n\n\n\n Lastly, Mullins argues that the district court should have stayed the case\n\nand held a hearing so that he could inspect records about the jury pool’s\n\ncomposition under 28 U.S.C. § 1867(f). True enough, § 1867(f) gives parties\n\nthe right to inspect such records to prepare a § 1867(a) motion. And in Test v.\n\nUnited States, the Supreme Court held that § 1867(f) gives litigants “essentially\n\nan unqualified right to inspect jury lists.” 420 U.S. 28, 30 (1975) (per curiam);\n\nsee also United States v. Lawson, 670 F.2d 923, 926 (10th Cir. 1982) (similar).\n\n But importantly, the Test and Lawson defendants “request[ed] permission\n\nto inspect and copy the jury lists pertaining to” their jury venires. Test, 420\n\nU.S. at 29 (citation modified); Lawson, 670 F.2d at 926. Mullins, though, never\n\nmoved to inspect or copy records under § 1867(f). Instead, he requested relief\n\nunder § 1867(d). And again, he failed to comply with that section’s procedural\n\nrequirements.\n\n In sum, all four Jury Act motions were procedurally deficient. 8 So the\n\ndistrict court did not err in denying them.\n\nII. Rule 410 Motion\n\n Next, Mullins argues that the district court erred by denying his motion\n\nto suppress his statements directing law-enforcement officers to Woodall’s\n\nbody.\n\n\n\n For that reason, we need not consider whether the motions also failed\n 8\n\non the merits.\n\n 19\n\f Appellate Case: 24-7003 Document: 74-1 Date Filed: 01/16/2026 Page: 20\n\n\n\n A. Standard of Review\n\n We review de novo “legal interpretations of the Federal Rules of\n\nEvidence.” United States v. Silva, 889 F.3d 704, 709 (10th Cir. 2018). But we\n\nreview evidentiary rulings for abuse of discretion. United States v. Channon,\n\n881 F.3d 806, 809 (10th Cir. 2018). So we reverse an evidentiary ruling only if\n\nit rests “on a clearly erroneous finding of fact or an erroneous conclusion of\n\nlaw,” or if it “manifests a clear error in judgment.” Id. at 809–10 (citation\n\nomitted).\n\n Mullins’s claim involves the district court’s interpretation of Federal\n\nRule of Evidence 410(a)(4). We review the court’s interpretation of the rule de\n\nnovo and its factual findings for clear error. See Silva, 889 F.3d at 709;\n\nChannon, 881 F.3d at 809–10.\n\n B. Analysis\n\n Under Rule 410, “a statement made during plea discussions with an\n\nattorney for the prosecuting authority” is inadmissible against a criminal\n\ndefendant “if the discussions did not result in a guilty plea or they resulted in a\n\nlater-withdrawn guilty plea.” Fed. R. Evid. 410(a)(4). This rule “grew out of\n\nlongstanding case law excluding th[e] type of especially damning evidence”\n\nsurrounding guilty pleas. United States v. Mitchell, 633 F.3d 997, 1003 (10th\n\nCir. 2011).\n\n Another federal rule informs our understanding of Rule 410(a)(4): former\n\nFederal Rule of Criminal Procedure 11(e)(6)(D). Rule 11(e)(6)(D) prohibited\n\n 20\n\f Appellate Case: 24-7003 Document: 74-1 Date Filed: 01/16/2026 Page: 21\n\n\n\n“admission of any statement made in the course of plea discussions with an\n\nattorney for the government which d[id] not result in a plea of guilty.” United\n\nStates v. Browning, 252 F.3d 1153, 1158 (10th Cir. 2001) (citation modified).\n\nThough Rule 410(a)(4) uses slightly different language, we often treated the\n\ntwo rules interchangeably. See, e.g., United States v. Ruminer, 786 F.2d 381,\n\n385 (10th Cir. 1986) (“Rule 11(e)(6) is essentially identical to Rule 410.”);\n\nUnited States v. Acosta-Ballardo, 8 F.3d 1532, 1534–35 (10th Cir. 1993)\n\n(similar); United States v. Medina-Estrada, 81 F.3d 981, 985 n.3 (10th Cir.\n\n1996) (similar). Because of the rules’ similarities, we consider caselaw\n\ndiscussing Rule 11(e)(6)(D) persuasive when interpreting Rule 410(a)(4).\n\n Mullins argues that his statements directing officers to Woodall’s body\n\nwere part of “plea discussions with an attorney for the prosecuting authority,”\n\nmaking them inadmissible under Rule 410(a)(4). The district court held that\n\nbecause Mullins spoke to law-enforcement officers instead of a prosecutor,\n\nRule 410(a)(4) did not protect his statements. 9 Mullins, 2022 WL 2306819, at\n\n4.\n\n We, too, think that Mullins’s statements fall outside Rule 410(a)(4)’s\n\nscope. Rule 410 protects statements made “during plea discussions with an\n\nattorney for the prosecuting authority.” Fed. R. Evid. 410(a)(4) (emphasis\n\n\n\n 9\n Rule 410(a)(4) also requires there be “a later-withdrawn guilty plea.” Neither\nparty disputes that we should treat Mullins’s state-court guilty plea as\nwithdrawn.\n 21\n\f Appellate Case: 24-7003 Document: 74-1 Date Filed: 01/16/2026 Page: 22\n\n\n\nadded). Relying on its plain language, some circuits have held that Rule\n\n410(a)(4) applies only to statements made to prosecuting attorneys. See, e.g.,\n\nUnited States v. Bauzó-Santiago, 867 F.3d 13, 19–20 (1st Cir. 2017); United\n\nStates v. Bernal, 719 F.2d 1475, 1478 (9th Cir. 1983), abrogated on other\n\ngrounds by, Crawford v. Washington, 541 U.S. 36, 68–69 (2004). Other circuits\n\nhave read Rule 410(a)(4) more broadly to cover conversations with government\n\nagents expressly or impliedly authorized to negotiate a plea. See, e.g., United\n\nStates v. McCauley, 715 F.3d 1119, 1125–26 (8th Cir. 2013); cf. United States\n\nv. Serna, 799 F.2d 842, 848–49 (2d Cir. 1986) (interpreting Rule 11(e)(6)(D)),\n\nabrogated on other grounds by, United States v. DiNapoli, 8 F.3d 909, 914 n.5\n\n(2d Cir. 1993) (en banc).\n\n When we considered Rule 11(e)(6)(D)’s scope in Browning, we favored a\n\nstrict reading. There, we considered whether Rule 11(e)(6)(D) covered a\n\ndefendant’s statements to DEA agents. 252 F.3d at 1158. Relying on the rule’s\n\nplain language, we suggested that it protected only statements made when\n\n“speaking with an attorney for the government.” Id. (citation modified).\n\nBecause the defendant spoke to DEA agents, not a government attorney, we\n\nheld that his statements did not “fall within the [rule’s] plain language.” Id.\n\n That said, we also acknowledged the Eighth Circuit’s ruling in United\n\nStates v. Lawrence, 952 F.2d 1034 (8th Cir. 1992). See Browning, 252 F.3d at\n\n1158. Lawrence held that Rule 11(e)(6)(D) also applied to “situations where\n\nlaw-enforcement officials enter into negotiations with express authority from a\n\n 22\n\f Appellate Case: 24-7003 Document: 74-1 Date Filed: 01/16/2026 Page: 23\n\n\n\ngovernment attorney.” 952 F.2d at 1037. Without adopting Lawrence’s reading\n\nof Rule 11(e)(6)(D), we dismissed the defendant’s related arguments because\n\nhe provided no evidence that the agents had express authority to negotiate a\n\nplea. Browning, 252 F.3d at 1158.\n\n Here, as in Browning, Mullins’s motion fails under either interpretation\n\nof Rule 410(a)(4).\n\n First, Mullins’s motion fails under a strict reading because Mullins\n\ndirected law-enforcement officers—not Ross or another prosecutor—to the\n\nbody. See id.; see also Bauzó-Santiago, 867 F.3d at 19–20.\n\n Second, Mullins’s motion fails under a broad reading, too, because no\n\nevidence supports that the officers Stout spoke to or the ones Mullins directed\n\nto the body were authorized to negotiate a plea. See Browning, 252 F.3d at\n\n1158; McCauley, 715 F.3d at 1125–26. Indeed, though the district court held\n\nthat Rule 410(a)(4) did not apply to statements made to law-enforcement\n\nofficers, the court also considered whether Mullins’s claim would succeed\n\nunder Lawrence. See Mullins, 2022 WL 2306819, at 5. The court found “no\n\nevidence suggesting that ADA Ross had authorized police officials to make a\n\nplea agreement.” Id.\n\n Mullins has not shown that this factual finding was clearly erroneous. 10\n\nSee Channon, 881 F.3d at 809–10. Instead, he focuses on comparing his facts to\n\n\n 10\n In fact, Mullins does not challenge any of the district court’s factual\nfindings. See Op. Br. at 13.\n 23\n\f Appellate Case: 24-7003 Document: 74-1 Date Filed: 01/16/2026 Page: 24\n\n\n\nSerna’s. But Serna is distinguishable. There, the defendant, his counsel, an\n\nAUSA, and two DEA agents met “to discuss the possibility of [the defendant’s]\n\ncooperation with the Government.” 799 F.2d at 848. The AUSA told the\n\ndefendant that his statements “would not be used against him.” Id. Then a DEA\n\nagent interviewed the defendant without the AUSA present. Id.\n\n The Second Circuit concluded that Rule 11(e)(6)(D) protected the\n\ndefendant’s statements to the DEA agent. Id. at 849. It held that “[i]n light of\n\nthe initial meeting with the AUSA, th[at] . . . discussion must be considered as\n\npart of the overall plea bargaining process.” Id. The court also didn’t think that\n\nthe AUSA’s absence from the meeting mattered. It explained that Rule\n\n11(e)(6)(D) “require[s] the participation of a Government attorney in the plea\n\ndiscussions, but not necessarily his physical presence when a particular\n\nstatement is made to agents whom the attorney has authorized to engage in plea\n\ndiscussions.” Id. So because the DEA agent acted “under the AUSA’s\n\nauthority” when the defendant made the statements, the court concluded that\n\nRule 11(e)(6)(D) applied. Id.\n\n Here, no similar meeting occurred between Ross, Stout, and any officers.\n\nInstead, Stout and Ross—alone—discussed Woodall’s body and the death\n\npenalty. Mullins, 2022 WL 2306819, at 2. Then a day later, without speaking\n\nto Ross, Stout and Mullins directed officers to the body. See id. Unlike in\n\nSerna, no officers were present or involved in the earlier discussion between\n\n\n\n 24\n\f Appellate Case: 24-7003 Document: 74-1 Date Filed: 01/16/2026 Page: 25\n\n\n\nStout and Ross. Simply put, no evidence supports that Ross authorized law-\n\nenforcement officers to negotiate a plea with Mullins. See id. at 5.\n\n All that said, Mullins proposes another approach to Rule 410(a)(4)’s\n\nprosecuting-authority requirement. In his view, “[w]hether law enforcement\n\nagents were authorized to negotiate the terms of a plea deal with Mr. Mullins is\n\n. . . immaterial.” Op. Br. at 18. He argues that “[w]hat matters” instead “is\n\nwhether the plea deal that was the subject of Mr. Mullins’ discussions with the\n\nprosecutor contemplated the provision of information to law enforcement.” 11 Id.\n\n This argument misses the mark. The court never found, nor does the\n\nrecord support, that Stout and Ross entered a “plea deal” during their\n\ndiscussion. Instead, the court noted that Ross merely “suggested” to Stout that\n\nhe would not request the death penalty if Mullins revealed Woodall’s location.\n\nMullins, 2022 WL 2306819, at 2. And Stout never agreed to those terms\n\nduring the meeting. In fact, Mullins wasn’t even present for that discussion.\n\nThe next day, Stout told police that Mullins would direct them to the body. Id.\n\n\n\n 11\n Mullins also argues that Rule 410(a)(4) protects his statements because\nhe reasonably believed he made them during plea discussions. Though some\ncourts have found a defendant’s reasonable subjective belief relevant when\ndeciding whether statements were made during plea discussions, see, e.g.,\nUnited States v. Merrill, 685 F.3d 1002, 1013 (11th Cir. 2012), we need not\naddress that issue here. Whether or not Mullins reasonably believed he made\nhis statements during plea discussions, he did not speak to someone with\nauthority to negotiate a plea. See Browning, 252 F.3d at 1158 (concluding that\nthe defendant’s “reasonable subjective belief is an additional requirement for\ninvoking Rule 11(e)(6),” separate from the prosecuting-authority requirement).\n\n 25\n\f Appellate Case: 24-7003 Document: 74-1 Date Filed: 01/16/2026 Page: 26\n\n\n\nYet as the district court emphasized, Stout knew whom to contact about a plea\n\ndeal: Ross, not law-enforcement officials. Id. at *5. And though Mullins\n\nhighlights that Ross traveled with the caravan to Woodall’s body, Ross’s\n\npresence alone does not establish that he had entered a plea deal with Mullins.\n\n All in all, when Mullins directed officers to Woodall’s body, he had not\n\nentered a plea deal with Ross. Instead, any plea deal was still in the\n\n“discussions” stage. And so, for Rule 410(a)(4) to protect Mullins’s statements,\n\nhe had to be speaking with someone with “prosecuting authority.” See Fed. R.\n\nEvid. 410(a)(4). He provides no evidence that he was.\n\n Thus, the district court did not err in denying Mullins’s suppression\n\nmotion. 12\n\nIII. Rule 16 Motion\n\n Lastly, Mullins challenges the district court’s denial of his motion to\n\ncompel disclosure of communications between his prior counsel and the\n\ngovernment.\n\n A. Standard of Review\n\n We review discovery decisions for abuse of discretion. United States v.\n\nMuhtorov, 20 F.4th 558, 629 (10th Cir. 2021). But Mullins argues that de novo\n\n\n\n 12\n Mullins also asks us to “import the fruit of the poisonous tree doctrine”\nto Rule 410(a)(4) and exclude all evidence derived from his statements. Op. Br.\nat 20 (citation modified). We need not address this issue because Rule\n410(a)(4) does not protect his statements.\n\n 26\n\f Appellate Case: 24-7003 Document: 74-1 Date Filed: 01/16/2026 Page: 27\n\n\n\nreview applies because the communications’ discoverability is a question of\n\nlaw. 13\n\n We disagree. Though we review de novo interpretations of the Federal\n\nRules of Criminal Procedure, United States v. Freeman, 70 F.4th 1265, 1286\n\n(10th Cir. 2023), Mullins challenges the court’s application of Rule 16, not its\n\ninterpretation of the rule. So we review the district court’s decision for abuse of\n\ndiscretion. See Muhtorov, 20 F.4th at 629.\n\n B. Analysis\n\n Under Rule 16, a defendant may request—and the government must\n\nproduce—documents or other items within the government’s “possession,\n\ncustody, or control” if “(i) the item is material to preparing the defense; (ii) the\n\ngovernment intends to use the item in its case-in-chief at trial; or (iii) the item\n\nwas obtained from or belongs to the defendant.” Fed. R. Crim. P. 16(a)(1)(E).\n\n“At any time the court may, for good cause, deny, restrict, or defer discovery or\n\ninspection, or grant other appropriate relief.” Fed. R. Crim. P. 16(d)(1).\n\n Mullins moved for production of communications between the\n\ngovernment and his former counsel, Robert Gifford, because he feared Gifford\n\ndisclosed attorney-client privileged information. The district court construed\n\nhis motion as a Rule 16(a)(1)(E) discovery motion, reviewed the documents in\n\n\n Mullins cites Craine, 995 F.3d at 1153, to support this contention.\n 13\n\nCraine reviewed de novo the district court’s application of the Sentencing\nGuidelines. See id. It says nothing about the standard of review for discovery\ndecisions.\n 27\n\f Appellate Case: 24-7003 Document: 74-1 Date Filed: 01/16/2026 Page: 28\n\n\n\ncamera, and then denied the request. The court reasoned that the documents\n\nwere not discoverable under Rule 16(a)(1)(E), nor did they show any\n\ninappropriate disclosures by Gifford.\n\n Mullins now argues that Gifford’s communications belonged to him as\n\npart of his client file, making them discoverable under Rule 16(a)(1)(E)(iii).\n\n Even if the district court erred by denying Mullins’s motion, that error\n\nwas harmless. 14 See Fed. R. Crim. P. 52(a). Applying the nonconstitutional\n\nharmless error standard, we ask whether the error had “a substantial influence\n\non the outcome of the trial” or leaves us “in grave doubt as to whether it had\n\nsuch effect.” United States v. Blechman, 657 F.3d 1052, 1067 (10th Cir. 2011)\n\n(citation omitted).\n\n Mullins never argued that he needed the documents for trial. Instead, he\n\nrequested the communications because he believed they may support an\n\nineffective-assistance claim. And regardless, the government’s evidence of\n\nMullins’s guilt was overwhelming. See United States v. Chavez, 976 F.3d 1178,\n\n1210 (10th Cir. 2020) (explaining that courts consider “the overall strength of\n\nthe other evidence against the defendant” as part of the harmless-error analysis\n\n(citation omitted)). So we do not believe that the district court’s discovery\n\nruling substantially influenced the jury’s verdict.\n\n\n\n 14\n Mullins argues that the government waived its harmless-error argument\nby not meaningfully briefing it. We disagree. The government adequately\naddressed harmless error in its response brief.\n 28\n\f Appellate Case: 24-7003 Document: 74-1 Date Filed: 01/16/2026 Page: 29\n\n\n\n We also note that, in the district court, Mullins never requested the\n\ndocuments because they “belonged” to him; instead, he raised only ineffective-\n\nassistance concerns. And the court reviewed the documents with that in mind.\n\nFinding no improper disclosures, it denied the motion. But the court clarified\n\nthat Mullins could still seek the records “for another purpose.” R. vol. I at 426.\n\nThis, too, supports that any error was harmless, because the court left open the\n\ndoor for other requests.\n\n Mullins argues that we cannot review this issue for harmlessness because\n\nthe communications are not in the record. But courts have applied harmless-\n\nerror review to denied discovery motions before. See, e.g., United States v.\n\nHodges, 480 F.2d 229, 233 (10th Cir. 1973) (applying harmless-error analysis\n\nto “failure to require discovery”); United States v. Sanders, 106 F.4th 455,\n\n475–76 (6th Cir. 2024) (en banc) (applying harmless-error analysis to denial of\n\nRule 16(a)(1)(E) motion); United States v. Owens, 18 F.4th 928, 940–41 (7th\n\nCir. 2021) (same). And Mullins provides no persuasive reason why we should\n\nchange tack here. We therefore find this argument unconvincing.\n\n CONCLUSION\n\n For these reasons, we affirm Mullins’s convictions.\n\n\n\n\n 29", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11242007/", "author_raw": "PHILLIPS, Circuit Judge."}]}	PHILLIPS	KELLY	MORITZ	1		{"PHILLIPS": ", Circuit", "KELLY": ", Circuit", "MORITZ": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10775421/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,768,925	Ginna Alejandra Gutierrez-Mikan v. U.S. Attorney General	2026-01-05	24-13788	U.S. Court of Appeals for the Eleventh Circuit	{"judges": "Before NEWSOM, GRANT, and LUCK, Circuit Judges.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "USCA11 Case: 24-13788 Document: 32-1 Date Filed: 01/05/2026 Page: 1 of 10\n\n\n\n\n FOR PUBLICATION\n\n\n In the\n United States Court of Appeals\n For the Eleventh Circuit\n ____________________\n No. 24-13788\n Non-Argument Calendar\n ____________________\n\n GINNA ALEJANDRA GUTIERREZ-MIKAN,\n DAVID E. BENAVIDES GUTIERREZ,\n Petitioners,\n versus\n\n U.S. ATTORNEY GENERAL,\n Respondent.\n ____________________\n Petition for Review of a Decision of the\n Board of Immigration Appeals\n Agency No. A220-283-707\n ____________________\n\n Before NEWSOM, GRANT, and LUCK, Circuit Judges.\n PER CURIAM:\n Ginna Alejandra Gutierrez-Mikan petitions for review of the\n Board of Immigration Appeals’s dismissal of her appeal from an\n\fUSCA11 Case: 24-13788 Document: 32-1 Date Filed: 01/05/2026 Page: 2 of 10\n\n\n\n\n 2 Opinion of the Court 24-13788\n\n immigration judge’s order denying her application for asylum,\n withholding of removal, and protection under the Convention\n Against Torture. After careful review, we deny her petition.\n\n FACTUAL BACKGROUND AND PROCEDURAL HISTORY\n Gutierrez-Mikan and her son are Colombian nationals who\n entered the United States in July 2021. Shortly after they did so,\n the Department of Homeland Security issued them notices to ap-\n pear at a deportation hearing before an immigration judge. At the\n hearing, Gutierrez-Mikan conceded she was removable, but\n claimed asylum, withholding of removal, and relief under the Con-\n 1\n vention.\n Gutierrez-Mikan testified that, for about twenty years, she\n and her family had been persecuted by the Revolutionary Armed\n Forces of Colombia, a group of violent guerillas in Colombia. After\n her family refused to pay extortion money to the FARC, the gue-\n rillas raped her, burned the family’s vehicle, and killed two of her\n uncles who tried to investigate and oppose FARC. Despite the fam-\n ily’s efforts to escape FARC by moving around Colombia, the gue-\n rillas continued to discover their location and harass and threaten\n them with phone calls and notes. The family reported the murders\n and the threatening notes and phone calls to Colombian police.\n\n\n 1\n Gutierrez-Mikan’s son, David Estaban Benavides Gutierrez, had a derivative\n claim for asylum, but only Gutierrez-Mikan had claims for withholding of re-\n moval and for relief under the Convention. We use Gutierrez-Mikan as short-\n hand for her and, where applicable, her son as a derivative claimant.\n\fUSCA11 Case: 24-13788 Document: 32-1 Date Filed: 01/05/2026 Page: 3 of 10\n\n\n\n\n 24-13788 Opinion of the Court 3\n\n The police took their reports and placed the family on a database\n of victims of armed conflict, but FARC continued to harass the fam-\n ily, including by robbing their home. The family reported the rob-\n bery to the police and continued to move frequently, but they still\n received threatening texts and flyers in their home. Eventually,\n Gutierrez-Mikan and her son left their family in Colombia and fled\n to the United States, crossing the border without permission.\n The immigration judge denied Gutierrez-Mikan’s applica-\n tion. He credited Gutierrez-Mikan’s testimony but concluded that\n she was not entitled to the relief she sought. As to her claims for\n asylum and withholding of removal, the immigration judge found\n that Gutierrez-Mikan hadn’t established that she had been harmed\n because she was a member of “a valid cognizable particular social\n group.” As to her claim for relief under the Convention, the immi-\n gration judge explained that Gutierrez-Mikan failed to show that\n she was “more likely than not to face harm amounting to torture\n by or with the consent or acquiescence of a public official in the\n government of Colombia.” That was because the evidence didn’t\n show “that Colombia would look the other way to potential harm”\n that FARC might inflict upon her.\n Gutierrez-Mikan appealed to the board. She asserted an in-\n effective-assistance-of-counsel claim against the attorney who rep-\n resented her at the deportation hearing because he didn’t argue\n that she had been persecuted in Colombia on account of (1) resist-\n ing FARC or (2) her membership in the particular social group of\n\fUSCA11 Case: 24-13788 Document: 32-1 Date Filed: 01/05/2026 Page: 4 of 10\n\n\n\n\n 4 Opinion of the Court 24-13788\n\n her nuclear family. Gutierrez-Mikan also argued that the immigra-\n tion judge had erred in denying her claim under the Convention.\n As to the ineffective-assistance-of-counsel claim, the board\n concluded that Gutierrez-Mikan had failed to meet the procedural\n requirements. Under Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA\n 1988), she had to submit a bar complaint against the attorney or\n explain her decision not to do so, and she had to give the attorney\n notice and an opportunity to respond to the alleged mistakes. The\n board found “no evidence” that Gutierrez-Mikan had fulfilled ei-\n ther of the Lozada requirements. As to the claim for relief under\n the Convention, the board ruled that the immigration judge’s de-\n cision “did not provide any analysis of the evidence of record in\n relation to the legal requirements.” So the board remanded the\n case to the immigration judge for “further proceedings.”\n On remand, the immigration judge considered the same rec-\n ord as before and found additional facts. He found that Colombia\n had not retaliated against Gutierrez-Mikan or her family for report-\n ing FARC members’ activities, that Colombia had entered into\n peace accords with FARC, that Colombia outlawed membership in\n FARC, and that Colombia was “attempting to combat the FARC.”\n Thus, Gutierrez-Mikan had not shown that the Colombian govern-\n ment had consented or acquiesced to FARC’s activities. For that\n reason, Gutierrez-Mikan’s Convention claim failed.\n Gutierrez-Mikan again appealed the immigration judge’s de-\n cision to the board. She argued that the immigration judge had\n erred by not holding a new hearing or taking additional evidence.\n\fUSCA11 Case: 24-13788 Document: 32-1 Date Filed: 01/05/2026 Page: 5 of 10\n\n\n\n\n 24-13788 Opinion of the Court 5\n\n And she asserted that the immigration judge erred by finding that\n she had not established her eligibility for relief under the Conven-\n tion. The board rejected both arguments. First, it wrote that its\n previous remand for “further proceedings” did not require the im-\n migration judge to set new hearings or take new testimony. Sec-\n ond, the board rejected “[Gutierrez-Mikan’s] argument that [she]\n established a complete failure by Colombian authorities to provide\n adequate protection that demonstrates acquiescence” to torture.\n The board ruled that the immigration judge had cited sufficient ev-\n idence to conclude that Gutierrez-Mikan had not “demonstrate[d]\n a state nexus to torture.”\n\n STANDARD OF REVIEW\n Unless the board expressly adopts an immigration judge’s\n opinion, we review only the board’s decision. Jiang v. U.S. Att’y\n Gen., 568 F.3d 1252, 1256 (11th Cir. 2009). When the board explic-\n itly agrees with the findings of the immigration judge, we review\n both decisions on those issues. Jeune v. U.S. Att’y Gen., 810 F.3d 792,\n 799 (11th Cir. 2016). “We review de novo the conclusions of law\n by the [b]oard and [i]mmigration [j]udge, but we review findings\n of fact for substantial evidence to support them.” Kazemzadeh v.\n U.S. Att’y Gen., 577 F.3d 1341, 1350 (11th Cir. 2009). Under the sub-\n stantial evidence standard, “we must affirm if the decision . . . is\n supported by reasonable, substantial, and probative evidence on\n the record considered as a whole.” Silva v. U.S. Att’y Gen., 448 F.3d\n 1229, 1237 (11th Cir. 2006) (quotation omitted).\n\fUSCA11 Case: 24-13788 Document: 32-1 Date Filed: 01/05/2026 Page: 6 of 10\n\n\n\n\n 6 Opinion of the Court 24-13788\n\n DISCUSSION\n Gutierrez-Mikan raises two issues on appeal. First, she ar-\n gues that the board erred in denying her ineffective-assistance-of-\n counsel claim because she did not meet Lozada’s procedural re-\n quirements. Second, she contends that the board erred in evaluat-\n ing her claim under the Convention by applying the wrong stand-\n ard and reaching the wrong result.\n Gutierrez-Mikan’s ineffective-assistance-of-counsel claim\n “[S]ubstantial, if not exact, compliance” with Lozada’s re-\n quirements is necessary to pursue an ineffective-assistance-of-\n counsel claim in the immigration context. See Ponce Flores v. U.S.\n Att’y Gen., 64 F.4th 1208, 1225 (11th Cir. 2023) (quoting Dakane v.\n U.S. Att’y Gen., 399 F.3d 1269, 1274 (11th Cir. 2005)). Because\n Gutierrez-Mikan does not argue—and the record does not show—\n that she substantially complied with those requirements, the board\n did not err in dismissing her claim.\n Instead of arguing about substantial compliance, Gutierrez-\n Mikan contends that Lozada (and our decisions following it) do not\n apply because of the Supreme Court’s decision in Loper Bright En-\n ters. v. Raimondo, 603 U.S. 369 (2024). But Gutierrez-Mikan is\n wrong that Loper Bright undermined Lozada and our decisions ap-\n plying it.\n Loper Bright held that courts should no longer unthinkingly\n defer to agency interpretations of ambiguous statutes. See id. at\n 412–13. But Lozada was not based on the board’s interpretation of\n the immigration code. Rather, the Lozada requirements for\n\fUSCA11 Case: 24-13788 Document: 32-1 Date Filed: 01/05/2026 Page: 7 of 10\n\n\n\n\n 24-13788 Opinion of the Court 7\n\n immigration-court ineffective-assistance-of-counsel claims stem\n from the board’s “broad” discretion in considering motions to reo-\n pen deportation orders. See Gbaya v. U.S. Att’y Gen., 342 F.3d 1219,\n 1223 (11th Cir. 2003); see also Lonyem v. U.S. Att’y Gen., 352 F.3d\n 1338, 1342 (11th Cir. 2003) (explaining that administrative agencies\n are “free to fashion their own rules of procedure and to pursue\n methods of inquiry capable of permitting them to discharge their\n multitudinous duties” (quoting Vermont Yankee Nuclear Power Corp.\n v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 543 (1978))). Because\n Lozada did not interpret an ambiguous immigration statute, Loper\n 2\n Bright does not impact Lozada or our decisions applying it.\n With Lozada still good law, Gutierrez-Mikan had to substan-\n tially comply with its requirements to show her counsel was inef-\n fective. Because she didn’t, the board did not err in denying her\n claim.\n\n\n\n 2 Even if the Lozada requirements were based on an interpretation of the im-\n\n migration code, the Supreme Court was clear that Loper Bright did “not call\n into question prior cases that relied on the Chevron framework. The holdings\n of those cases that specific agency actions are lawful . . . are still subject to stat-\n utory stare decisis despite [the Court’s] change in interpretive methodology.\n Mere reliance on Chevron cannot constitute a special justification for overrul-\n ing such a holding, because to say a precedent relied on Chevron is, at best, just\n an argument that the precedent was wrongly decided. That is not enough to\n justify overruling a statutory precedent.” Loper Bright, 603 U.S. at 412. In other\n words, Loper Bright, by itself, would not be a sufficient reason to overrule our\n precedent applying the Lozada requirements to immigration-court ineffective-\n assistance-of-counsel claims.\n\fUSCA11 Case: 24-13788 Document: 32-1 Date Filed: 01/05/2026 Page: 8 of 10\n\n\n\n\n 8 Opinion of the Court 24-13788\n\n Gutierrez-Mikan’s claim for relief under the Convention Against Torture\n As to her claim for relief under the Convention Against Tor-\n ture, Gutierrez-Mikan says there are two reasons the board erred.\n 1. The board did not err by concluding that Gutierrez-Mikan was\n not entitled to relief under the Convention.\n First, Gutierrez-Mikan contends she was entitled to relief be-\n cause “the record evidence clearly demonstrate[d] a likelihood”\n that she would be tortured if returned to Colombia. An applicant\n is “entitled to protection under the Convention” if “the immigra-\n tion judge determines that the alien is more likely than not to be\n tortured in the country of removal.” 8 C.F.R. § 1208.16(c)(4). Tor-\n ture is “any act by which severe pain or suffering, whether physical\n or mental, is intentionally inflicted . . . when such pain or suffering\n is inflicted by, or at the instigation of, or with the consent or acqui-\n escence of” a public official or other person acting in an official ca-\n pacity. Id. § 1208.18(a)(1). To acquiesce in activity constituting tor-\n ture, an official must “prior to the activity constituting torture,\n have awareness of such activity and thereafter breach his or her le-\n gal responsibility to intervene to prevent such activity.” Id.\n § 1208.18(a)(7).\n Here, substantial evidence supported the board’s finding\n that the Colombian government did not and would not consent to\n or acquiesce in FARC’s torture of Gutierrez-Mikan and her family.\n The evidence showed that the Colombian government negotiated\n peace accords with FARC, outlawed violent groups in the country,\n and documented FARC’s violence by registering victims in a\n\fUSCA11 Case: 24-13788 Document: 32-1 Date Filed: 01/05/2026 Page: 9 of 10\n\n\n\n\n 24-13788 Opinion of the Court 9\n\n government database. The evidence showed that these efforts had\n some effect because FARC warned Gutierrez-Mikan and her family\n not to call the police and retaliated against them when they did.\n Because there was evidence in the record supporting the acquies-\n cence finding, the board did not err in denying Gutierrez-Mikan’s\n Convention claim.\n 2. The board did not err because it applied the correct legal stand-\n ard to Gutierrez-Mikan’s claim under the Convention.\n Gutierrez-Mikan also argues that the board got the law\n wrong when it wrote that it did not agree that there was “a com-\n plete failure by Colombian authorities to provide adequate protec-\n tion that demonstrate[d] governmental acquiescence or willful\n blindness to torture.” Requiring a “complete failure” to protect,\n she argues, holds “[her] to an improperly heightened standard to\n establish” that the Colombian government acquiesced in her per-\n secution by FARC.\n But the board did not apply an incorrect standard to\n Gutierrez-Mikan’s claim. The “complete failure” language was the\n board’s description of Gutierrez-Mikan’s arguments on appeal.\n Although the board referenced her arguments about “a complete\n failure by Colombian authorities to provide adequate protection”\n and “authorities simply ignored reports of harm by the FARC,” in\n the end, the board adopted the immigration judge’s finding that the\n Colombian government did not acquiesce to FARC violence. And\n the adopted finding comes straight from the immigration regula-\n tions defining the elements of a Convention claim. See 8 C.F.R.\n\fUSCA11 Case: 24-13788 Document: 32-1 Date Filed: 01/05/2026 Page: 10 of 10\n\n\n\n\n 10 Opinion of the Court 24-13788\n\n § 1208.18(a)(1). Because the board adopted the immigration\n judge’s analysis under the correct legal standard, it did not apply an\n improper standard to Gutierrez-Mikan’s claim under the Conven-\n tion.\n PETITION DENIED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11235510/", "author_raw": "PER CURIAM"}]}	NEWSOM	GRANT	LUCK	1		{"NEWSOM": ", Circuit", "GRANT": ", Circuit", "LUCK": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10768925/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,769,014	United States v. Jy'Quale Grable	2026-01-05	23-10544	U.S. Court of Appeals for the Eleventh Circuit	{"judges": "Before JORDAN, LAGOA, and TJOFLAT, Circuit Judges.", "parties": "", "opinions": [{"author": "JORDAN, Circuit Judge:", "type": "010combined", "text": "USCA11 Case: 23-10544 Document: 67-1 Date Filed: 01/05/2026 Page: 1 of 20\n\n\n\n\n FOR PUBLICATION\n\n\n In the\n United States Court of Appeals\n For the Eleventh Circuit\n ____________________\n No. 23-10544\n ____________________\n\n UNITED STATES OF AMERICA,\n Plaintiﬀ-Appellee,\n versus\n\n JY’QUALE SAMARI GRABLE,\n a.k.a. Jy,\n Defendant-Appellant.\n ____________________\n Appeal from the United States District Court\n for the Middle District of Florida\n D.C. Docket No. 8:22-cr-00042-SCB-CPT-1\n ____________________\n\n Before JORDAN, LAGOA, and TJOFLAT, Circuit Judges.\n JORDAN, Circuit Judge:\n The Hobbs Act, 18 U.S.C. § 1951(a), in part prohibits “rob-\n bery” which affects commerce or the movement of any article or\n commodity in commerce. The Act defines “robbery” as the\n\fUSCA11 Case: 23-10544 Document: 67-1 Date Filed: 01/05/2026 Page: 2 of 20\n\n\n\n\n 2 Opinion of the Court 23-10544\n\n “unlawful taking or obtaining of personal property from the per-\n son, or in the presence of another, by means of actual or threatened\n force, or violence, or fear of injury, immediate or future, to his per-\n son or property.” § 1951(b)(1) (emphasis added).\n We hold today that a taking of property does not constitute\n robbery under the Hobbs Act unless force or threatened force is\n used before or during the taking. Because Jy’Quale Grable used\n force only after one of his co-conspirators had stolen marijuana and\n carried it away, we set aside his § 1951(a) conviction, as well as his\n 18 U.S.C. § 924 conviction, which was premised on the alleged rob-\n bery.\n I\n We set out the facts in the light most favorable to the jury\n verdict. See United States v. Mapson, 96 F.4th 1323, 1328 (11th Cir.\n 2024).\n A\n In December of 2020, Mr. Grable and his two co-conspira-\n tors, Elijah Bell and Aquavius Smith, agreed to commit a robbery—\n what they described as a “buck” or a “lick”—to take marijuana\n from Bryer Bowling, whom Mr. Grable knew. Mr. Bell and Mr.\n Smith learned of the plan from Mr. Grable on the afternoon of the\n incident.1\n\n\n 1 Mr. Bell described a “buck” as “[l]ike take something from somebody” or\n\n “[s]teal something from somebody[.]” Mr. Smith similarly described a “lick,”\n which he understood to be the same as a “buck.”\n\fUSCA11 Case: 23-10544 Document: 67-1 Date Filed: 01/05/2026 Page: 3 of 20\n\n\n\n\n 23-10544 Opinion of the Court 3\n\n Despite agreeing to the “buck,” the three men did not de-\n velop a plan beyond stealing the marijuana. And unbeknownst to\n Mr. Bell (but not Mr. Smith), Mr. Grable was armed with a gun\n during the incident.\n 1\n On the day of the theft, Mr. Grable communicated with Mr.\n Bowling about directions to the latter’s apartment. Mr. Grable\n then provided the directions to Mr. Bell. Using his father’s car, Mr.\n Bell drove Mr. Grable and Mr. Smith to Mr. Bowling’s apartment\n complex. After the car entered the parking lot of the complex, Mr.\n Bowling provided Mr. Grable directions to his unit. Mr. Bell re-\n mained in the car while Mr. Grable and Mr. Smith went upstairs to\n the apartment.\n Mr. Bowling let Mr. Grable and Mr. Smith in when they ar-\n rived. He then led them to the balcony, where the marijuana lay\n on a table. The three men sat down and were joined by Maverick\n Manuel, who was staying with Mr. Bowling. Mr. Smith then asked\n for a scale. While Mr. Bowling went inside to get one, Mr. Smith\n stole the marijuana and left the apartment. Mr. Smith testified at\n trial that once he had taken the marijuana and left the apartment,\n he had accomplished his goal.\n Mr. Grable did not know that Mr. Smith had departed, and\n therefore stayed in the apartment. When Mr. Bowling returned to\n the balcony, he noticed that Mr. Smith had taken the marijuana\n and told Mr. Grable, “Your homeboy left with the weed, so you\n can’t leave until he comes back[.]” Mr. Grable responded that Mr.\n\fUSCA11 Case: 23-10544 Document: 67-1 Date Filed: 01/05/2026 Page: 4 of 20\n\n\n\n\n 4 Opinion of the Court 23-10544\n\n Smith had probably gone to get money, but Mr. Bowling and Mr.\n Manuel reiterated that Mr. Smith had to return or they were\n “gonna do some shit to [Mr. Grable].”\n Realizing he was cornered, Mr. Grable drew his gun and\n shot Mr. Bowling in the head and Mr. Manuel in the chest, killing\n both men. Mr. Grable’s use of deadly force was several minutes\n after Mr. Smith left with the marijuana.\n 2\n William Kinnard, Mr. Bowling’s stepbrother and roommate,\n was also present at the apartment on the day of the incident. When\n Mr. Bowling let Mr. Grable and Mr. Smith into the apartment, Mr.\n Kinnard was in the kitchen washing his hands. Mr. Kinnard did not\n join the others on the balcony.\n While in the kitchen, Mr. Kinnard saw Mr. Smith leave the\n apartment. Mr. Kinnard went to the bathroom and remained\n there. Mr. Kinnard then heard two gunshots. After Mr. Grable left\n the apartment, Mr. Kinnard called 911 and walked to the balcony,\n where he found the bodies of Messrs. Bowling and Manuel.\n Neighbors in the building also heard the gunshots and Mr.\n Grable leaving the apartment. Two of the neighbors who lived be-\n low Mr. Bowling’s apartment called 911 after hearing the gunfire\n and seeing blood dripping from Mr. Bowling’s balcony.\n 3\n After leaving Mr. Bowling’s apartment, Mr. Smith returned\n to Mr. Bell’s car without Mr. Grable. Mr. Smith and Mr. Bell\n\fUSCA11 Case: 23-10544 Document: 67-1 Date Filed: 01/05/2026 Page: 5 of 20\n\n\n\n\n 23-10544 Opinion of the Court 5\n\n attempted to contact Mr. Grable multiple times to no avail. Uncer-\n tain where Mr. Grable was, the two men drove away from the\n apartment complex but then returned to find Mr. Grable running\n back to the car. The three men left the apartment complex and\n returned to the home of Mr. Grable’s mother.\n During the drive, Mr. Smith showed the others the mariju-\n ana he had stolen. Mr. Grable said he shot one of the two victims\n but later admitted to shooting both of them. Following the inci-\n dent, Mr. Grable, Mr. Smith, and Mr. Bell recorded themselves\n smoking the marijuana that Mr. Smith had stolen.\n B\n A grand jury charged Mr. Grable with conspiracy to commit\n a robbery in violation of 18 U.S.C. § 1951(a) and (b) (Count 1), in-\n terfering with commerce by robbery in violation 18 U.S.C.\n §§ 1951(a) and (b) and 2 (Count 2), and using a firearm during and\n in relation to a crime of violence, namely the § 1951(a) robbery\n charged in Count 2 resulting in murder, in violation of 18 U.S.C.\n §§ 924(c)(1)(A)(iii), 924(j)(1), and 2 (Count 3). Mr. Grable pled not\n guilty to all charges and proceeded to a jury trial.\n At the close of the government’s case, Mr. Grable moved for\n a judgment of acquittal pursuant to Federal Rule of Criminal Pro-\n cedure 29. Focusing on the force requirement in § 1951(b)(1), Mr.\n Grable argued that the government failed to establish that force\n was used to accomplish the taking of the marijuana. Although he\n implicitly conceded that a theft had occurred, Mr. Grable asserted\n that the theft was complete when Mr. Smith surreptitiously took\n\fUSCA11 Case: 23-10544 Document: 67-1 Date Filed: 01/05/2026 Page: 6 of 20\n\n\n\n\n 6 Opinion of the Court 23-10544\n\n the marijuana and left Mr. Bowling’s apartment. As a result, there\n was no robbery.\n Mr. Grable also argued that the force he used on the balcony\n after Mr. Smith departed with the marijuana was not in furtherance\n of the theft and was not premeditated. As to the conspiracy charge,\n Mr. Grable argued that the evidence showed an agreement to carry\n out a “buck,” but not an agreement to use force to take the mariju-\n ana.\n The district court denied the Rule 29 motion. The court\n concluded that a jury could find that there was a conspiracy, that\n the force was used in furtherance of a robbery, and that at least the\n second murder was premeditated. Mr. Grable later renewed his\n motion for judgment of acquittal, and the court again denied it.\n The jury convicted Mr. Grable on all charges. As to Count\n 3, it found him guilty of first-degree premeditated murder, first-de-\n gree felony murder, and second-degree murder for the killings of\n Messrs. Bowling and Manuel.\n Mr. Grable filed a post-trial motion for judgment of acquit-\n tal, again arguing that the government had failed to prove the req-\n uisite force necessary for a substantive § 1951(a) robbery. Specifi-\n cally, he maintained that the language of the Hobbs Act required\n the taking to be by force or threat of force, and the evidence had\n only established that force was used after Mr. Smith’s taking of the\n marijuana. And he asserted that the text of § 1951(b) did not con-\n template that “force used to facilitate flight would convert a theft\n to a robbery.” The district court denied the motion.\n\fUSCA11 Case: 23-10544 Document: 67-1 Date Filed: 01/05/2026 Page: 7 of 20\n\n\n\n\n 23-10544 Opinion of the Court 7\n\n C\n Because of the nature of the offenses, the probation officer\n calculated the offense level for Counts 1 and 2 together and for\n Count 3 separately. The probation officer determined that Mr.\n Grable’s total offense level under the Sentencing Guidelines was 43\n as to Counts 1 and 2. This consisted of a base offense level of 43\n and an enhancement of 2 levels for obstruction of justice pursuant\n to U.S.S.G. § 3C1.1, with the total offense level being capped at 43\n in accordance with the Sentencing Guidelines. The base offense\n level for Count 3 was “the minimum term of imprisonment re-\n quired by statute.” The probation officer calculated Mr. Grable’s\n criminal history category as I because he had no criminal history\n points.\n As to Counts 1 and 2, which each carried a maximum term\n of imprisonment of 20 years, the probation officer recommended a\n guideline imprisonment range of life that was statutorily capped at\n 40 years. For Count 3—which carried a minimum term of impris-\n onment of 10 years and a maximum term of life imprisonment—\n the probation officer recommended a consecutive term of life im-\n prisonment.\n At the sentencing hearing, the parties raised objections and\n arguments regarding the appropriate sentence. As relevant here,\n the parties disputed what the applicable guideline imprisonment\n range would be for Mr. Grable’s conviction on Count 3. Mr. Gra-\n ble argued that 18 U.S.C. § 924(j) did not require that the term of\n imprisonment run consecutively and allowed the district court to\n\fUSCA11 Case: 23-10544 Document: 67-1 Date Filed: 01/05/2026 Page: 8 of 20\n\n\n\n\n 8 Opinion of the Court 23-10544\n\n impose no additional term of imprisonment. He alternatively ar-\n gued that if the court applied the language of 18 U.S.C. § 924(c), the\n guideline imprisonment range would be 10 years to life imprison-\n ment to run consecutively. The government countered by assert-\n ing that a mandatory term of life applied to Count 3 pursuant to 18\n U.S.C. § 1111. And it argued that the Sentencing Guidelines would\n still mandate a term of life imprisonment for Count 3 were the\n court to not adopt its interpretation of § 1111.\n The district court overruled Mr. Grable’s objection and also\n declined to adopt the government’s position. It concluded that the\n applicable guideline imprisonment range for Count 3 was 10 years\n to life imprisonment.\n The district court orally sentenced Mr. Grable to a term of\n imprisonment “consist[ing] of 240 months as to Count 1, 240\n months as to Count 2, and a consecutive life sentence on Count 3.”\n It also imposed a term of five years of supervised release. The writ-\n ten judgment, however, memorialized the sentence as consisting\n of “a 240-month term as to Count 1, a 240-month term as to Count\n 2, and a [l]ife term as to Count 3, all such terms to run consecu-\n tively,” as well as the five-year term of supervised release. 2\n\n\n\n\n 2 Normally, “[w]hen a sentence pronounced orally and unambiguously con-\n\n flicts with the written order of judgment, the oral pronouncement governs.”\n United States v. Bates, 213 F.3d 1336, 1340 (11th Cir. 2000). See also United States\n v. Mosley, 31 F.4th 1332, 1335–36 (11th Cir. 2022) (remanding to the district\n court to “ensure its written judgment conform[ed] with its oral\n\fUSCA11 Case: 23-10544 Document: 67-1 Date Filed: 01/05/2026 Page: 9 of 20\n\n\n\n\n 23-10544 Opinion of the Court 9\n\n II\n “We review challenges to the suﬃciency of the evidence to\n support a conviction de novo, viewing the evidence and all reason-\n able inferences . . . in the light most favorable to the government.”\n United States v. Ochoa, 941 F.3d 1074, 1102 n.18 (11th Cir. 2019)\n (quoting United States v. Baldwin, 774 F.3d 711, 721 (11th Cir. 2014)).\n We similarly “review[ ] the district court’s interpretation and appli-\n cation of a statute de novo.” United States v. Ortega-Torres, 174 F.3d\n 1199, 1200 (11th Cir. 1999).\n III\n Mr. Grable does not challenge his conviction on Count 1 for\n Hobbs Act conspiracy. We therefore do not discuss that conviction\n further.\n As to Count 2, Mr. Grable argues that the force required to\n commit robbery under 18 U.S.C. § 1951(a) must occur prior to or\n during the taking of property. He contends that the 1946 Congress,\n in passing the Hobbs Act, did not adopt the “modern” view of rob-\n bery, which prohibits the use of force to retain, carry away, or fa-\n cilitate escape with the stolen property. Because he used force only\n after Mr. Smith surreptitiously stole the marijuana and carried it\n away from the apartment, Mr. Grable asserts that the government\n failed to prove that he violated § 1951(a). We agree and set aside\n\n\n\n pronouncement”). But because we are setting aside the convictions on\n Counts 2 and 3, all that remains is the 20-year sentence on Count 1.\n\fUSCA11 Case: 23-10544 Document: 67-1 Date Filed: 01/05/2026 Page: 10 of 20\n\n\n\n\n 10 Opinion of the Court 23-10544\n\n Mr. Grable’s convictions on Count 2 and on Count 3 (which was\n premised on Count 2).\n A\n In construing a statute we “begin with the text.” Lackey v.\n Stinnie, 604 U.S. 192, 199 (2025). Courts “normally interpret[ ] a\n statute in accord with the ordinary public meaning of its terms at\n the time of its enactment.” Bostock v. Clayton Cnty., 590 U.S. 644,\n 654 (2020). In general, however, “[s]tatutory definitions control\n the meaning of statutory words[.]” Burgess v. United States, 553 U.S.\n 134, 129–30 (2008) (internal quotation marks and citation omitted).\n The Hobbs Act, 18 U.S.C. § 1951(a), reads in relevant part as\n follows:\n Whoever in any way or degree obstructs, delays, or\n affects commerce or the movement of any article or\n commodity in commerce, by robbery or extortion or\n attempts or conspires so to do, or commits or threat-\n ens physical violence to any person or property in fur-\n therance of a plan or purpose to do anything in viola-\n tion of this section shall be fined under this title or im-\n prisoned not more than twenty years, or both.\n The Act defines “robbery” as “the unlawful taking or obtaining of\n personal property from the person or in the presence of another,\n against his will, by means of actual or threatened force, or violence,\n or fear of injury, immediate or future, to his person or property . .\n . .” § 1951(b)(1) (emphasis added).\n\fUSCA11 Case: 23-10544 Document: 67-1 Date Filed: 01/05/2026 Page: 11 of 20\n\n\n\n\n 23-10544 Opinion of the Court 11\n\n “The two required elements for a substantive Hobbs Act\n conviction are ‘robbery and an effect on interstate commerce.’”\n United States v. Taylor, 480 F.3d 1025, 1026–27 (11th Cir. 2007) (al-\n terations adopted) (quoting United States v. Rodriguez, 218 F.3d\n 1243, 1244 (11th Cir. 2000)). Our focus is on the robbery element.\n As explained below, we conclude that a Hobbs Act robbery is not\n committed where, as here, force or threat of force is used only after\n the property has been taken by surreptitious means and carried\n away.\n Robbery under the Hobbs Act requires that the taking of\n property be done “by means of actual or threatened force, or vio-\n lence, or fear of injury, immediate or future, to [the] person or\n property[.]” § 1951(b)(1) (emphasis added). The phrase “by means\n of,” the Supreme Court has told us, “typically indicates that the\n given result (the ‘end’) is achieved, at least in part, through the spec-\n ified action, instrument, or method (the ‘means’), such that the\n connection between the two is something more than oblique, indi-\n rect, and incidental. In other words, not every but-for cause will\n do.” Loughrin v. United States, 573 U.S. 351, 363 (2014) (addressing\n 18 U.S.C. § 1344(2) and citing dictionary definitions of the phrase).\n So for a taking of property to constitute a Hobbs Act robbery under\n §§ 1951(a) and 1951(b)(1), the theft must have been achieved, at\n least in part, through the use of actual or threatened force. Cf.\n Scheidler v. Nat’l Org. for Women, Inc., 547 U.S. 9, 16 (2006) (holding\n that “physical violence unrelated to robbery or extortion falls out-\n side the scope of the Hobbs Act”).\n\fUSCA11 Case: 23-10544 Document: 67-1 Date Filed: 01/05/2026 Page: 12 of 20\n\n\n\n\n 12 Opinion of the Court 23-10544\n\n Here Mr. Grable used force against Messrs. Bowling and Ma-\n nuel only after Mr. Smith had surreptitiously taken the marijuana\n and left the apartment with it. The theft of the marijuana therefore\n was not achieved, not even in part, through the use of (“by means\n of”) force. See § 1951(b)(1); Loughrin, 573 U.S. at 363. Mr. Grable’s\n shooting of the victims did not transform the earlier theft of the\n marijuana into a Hobbs Act robbery.\n The government resists this conclusion by arguing that the\n theft was not complete at the time of the shooting because Mr.\n Grable personally had not gotten his hands on the marijuana that\n Mr. Smith had stolen. But the government does not cite any au-\n thority to support its argument, and the common-law rule is that\n larceny is complete when the owner of the property is deprived of\n its possession. See, e.g., Crabb v. Zerbst, 99 F.2d 562, 564 (5th Cir.\n 1938) (stating that the “felonious taking and carrying away of prop-\n erty . . . constitutes the common law offense of larceny”); Robinson\n v. United States, 143 F.2d 276, 278 (10th Cir. 1944) (“Larceny [at\n common law] is the felonious taking . . . and the carrying away of\n the personal property of another, without the latter’s consent, and\n with the felonious intent permanently to deprive the owner of such\n property.”); Armour Packing Co. v. United States, 153 F. 1, 5 (8th Cir.\n 1907) (“[T]he fact remains that the offense is complete where the\n felonious taking occurs[.]”).\n The government is likely right that the Hobbs Act conspir-\n acy charged in Count 1 had not necessarily ended at the time of the\n fatal shootings. See generally United States v. Dynalectric Co., 859 F.2d\n\fUSCA11 Case: 23-10544 Document: 67-1 Date Filed: 01/05/2026 Page: 13 of 20\n\n\n\n\n 23-10544 Opinion of the Court 13\n\n 1559, 1564 (11th Cir. 1988) (explaining that a “conspiracy continues\n until the objectives of the conspiracy succeed or are abandoned and\n . . . to determine the objectives of any given conspiracy, the court\n must look to the conspiratorial agreement”). But a Hobbs Act con-\n spiracy is not the same as a substantive Hobbs Act robbery. “Tra-\n ditionally the law has considered conspiracy and the completed\n substantive offense to be separate crimes.” Iannelli v. United States,\n 420 U.S. 770, 777 (1975).\n Mr. Grable used force only after Mr. Smith had surrepti-\n tiously taken the marijuana and left the apartment with it. As a\n result, there was no robbery under the Hobbs Act. See United States\n v. Smith, 156 F.3d 1046, 1056 (10th Cir. 1998) (granting a judgment\n of acquittal on a § 1951(a) conviction because the defendants’ use\n of force during an escape attempt was insufficient: “The fact that\n several employees followed Mr. Smith [the thief] into the parking\n lot, and that Mr. Dotson [one of the employees] was injured by the\n getaway car, does not support a finding that Mr. Smith took the\n guns [the property] by means of force or violence.”).\n B\n Our conclusion, we think, is confirmed by the state of the\n law when the Hobbs Act became law in 1946. See Hobbs Anti-\n Racketeering Act of 1946, Pub. L. No. 79-486, 60 Stat. 420.\n In the words of the Supreme Court, “[i]t is a settled principle\n of interpretation that, absent other indication, Congress intends to\n incorporate the well-settled meaning of the common-law terms it\n uses.” Sekhar v. United States, 570 U.S. 729, 732 (2013) (internal\n\fUSCA11 Case: 23-10544 Document: 67-1 Date Filed: 01/05/2026 Page: 14 of 20\n\n\n\n\n 14 Opinion of the Court 23-10544\n\n quotation marks and citation omitted). “At common law, robbery\n meant larceny plus force, violence, or putting in fear.” Carter v.\n United States, 530 U.S. 255, 275 (2000) (Ginsburg, J., dissenting).\n And “[t]he crime of robbery [was] complete as soon as the robber\n unlawfully and by means of force or fear gain[ed] possession of the\n movable property of another in the presence of its lawful custodian\n and reduce[d] it to his manual possession.” 2 Ronald A. Anderson,\n Wharton’s Criminal Law & Procedure § 553 (1957).\n At the time the Hobbs Act was enacted, Black’s Law Dic-\n tionary defined “robbery” as the “[f]elonious taking of personal\n property in the possession of another, from his person or immedi-\n ate presence, and against his will, accomplished by means of force or\n fear.” Black’s Law Dictionary 1565 (3d ed. 1933) (emphasis added).\n It further explained that “[w]here a person, either with violence or\n with threats of injury, and putting the person robbed in fear, takes\n and carries away a thing which is on the body, or in the immediate\n presence of the person from whom it is taken, under such circum-\n stances that, in the absence of violence or threats, the act committed\n would be a theft.” Id. at 1566 (emphasis added). See also Black’s Law\n Dictionary 1492 (4th rev. ed. 1968) (“Robbery may thus be said to\n be a compound larceny, composed of the crime of larceny from the\n person with the aggravation of force, actual or constructive, used in\n the taking.”) (emphasis added). Thus, without prior or contempo-\n raneous “violence or threats,” the act would simply be a theft or\n larceny and not a robbery. In other words, force used only after\n the taking, such as to retain property or to facilitate an escape, did\n not make a larceny a common law robbery. See Anderson,\n\fUSCA11 Case: 23-10544 Document: 67-1 Date Filed: 01/05/2026 Page: 15 of 20\n\n\n\n\n 23-10544 Opinion of the Court 15\n\n Wharton’s Criminal Law & Procedure, at §§ 554, 559–60; 2 Jens\n David Ohlin, Wharton’s Criminal Law § 31:10 (16th ed. & Sept.\n 2025 update); 3 Wayne LaFave, Substantive Criminal Law § 20.3(e)\n (3d ed. 2018); Model Penal Code § 222.1, Part II Commentaries,\n cmt. 2(b), at 104 n.23 (A.L.I. 1980).\n In 1946, the year of the Hobbs Act’s enactment, we reiter-\n ated this common-law understanding of robbery in Norris v. United\n States, 152 F.2d 808 (5th Cir. 1946). There, we noted that “[r]ob-\n bery in its usual and ordinary sense . . . means the felonious taking\n of property from the person of another by violence or by putting\n him in fear.” Id. at 809. And we explained that “[t]he taking must\n be by violence or putting [the victim] in fear . . . . The violence or\n putting in fear must be at the time of the act or immediately pre-\n ceding it.” Id.\n Today, many jurisdictions have shifted away from the com-\n mon law’s temporal understanding of the use of force to a “mod-\n ern” view that captures any force used before, during, or after the\n theft is committed. Namely, “a majority of states have departed\n from the common law definition of robbery, broadening it, either\n statutorily or by judicial fiat, to . . . include[ ] conduct where the\n initial use or threat of force occurs in flight after the attempt or\n commission of the theft[.]” United States v. Jones, 878 F.3d 10, 18–\n 19 (2d Cir. 2017) (alterations adopted and citations and internal\n quotation marks omitted). For example, under Alabama’s current\n criminal code, robbery “embraces acts which occur in an attempt\n to commit or the commission of theft, or in immediate flight after\n\fUSCA11 Case: 23-10544 Document: 67-1 Date Filed: 01/05/2026 Page: 16 of 20\n\n\n\n\n 16 Opinion of the Court 23-10544\n\n the attempt or commission.” Ala. Code § 13A-8-40(b). Similarly,\n Florida’s current robbery statute encompasses acts that “occur[ ]\n either prior to, contemporaneous with, or subsequent to the taking\n of the property,” so long as the act and the taking “constitute a con-\n tinuous series of acts or events.” Fla. Stat. § 812.13(3)(b). See also\n §§ 812.13(2)(a) & (3)(a) (criminalizing acts that “occur[ ] in an at-\n tempt to commit robbery or in flight after the attempt or commis-\n sion” where the “offender carried a firearm or other deadly\n weapon”).\n The Model Penal Code, enacted in 1962—16 years after the\n Hobbs Act became law—sets out the modern view of robbery to\n include uses of force that “occur[ ] in an attempt to commit theft\n or in flight after the attempt or commission.” Model Penal Code\n § 222.1 (defining “in the course of committing a theft”). Under the\n Model Penal Code’s view, “a robbery is committed if the required\n special circumstances exist at any point from the beginning of an\n attempt to commit a theft through the end of the flight following\n its attempt or commission.” Model Penal Code § 222.1, Part II\n Commentaries, cmt. 2, at 99. See also id. cmt. 2(b), at 104. Thus,\n the Model Code “represents a broader conception of the offense\n than previously existed in many states.” Id. introductory note, at\n 95.\n The modern understanding of robbery, however, was not\n the prevalent view in 1946, when Congress enacted the Hobbs Act.\n See id. cmt. 2(b), at 104 (“Prior law was in general narrower than\n the Model Code on this point and did not include force during\n\fUSCA11 Case: 23-10544 Document: 67-1 Date Filed: 01/05/2026 Page: 17 of 20\n\n\n\n\n 23-10544 Opinion of the Court 17\n\n flight within the offense of robbery. [Those] [s]tatutes . . . were\n most likely to be interpreted to exclude flight after the taking.”). At\n that time the common-law view was the majority view, and as a\n result we cannot say that §§ 1951(a) and 1951(b)(1) incorporated\n the modern view. See Daker v. Comm’r, Ga. Dep’t of Corr., 820 F.3d\n 1278, 1286 (11th Cir. 2016) (“We must interpret the statute that\n Congress enacted, not rewrite the text to match our intuitions\n about unstated congressional purposes.”).\n C\n We address two additional arguments made by the govern-\n ment. Neither one is persuasive.\n First, the government seeks to analogize Hobbs Act robbery\n to bank robbery under 18 U.S.C. § 2113(a). Because bank robbery\n “continues throughout the escape for purposes of characterizing\n the involvement of additional parties who knowingly and willfully\n join in the escape phase only,” United States v. Willis, 559 F.2d 443,\n 444 n.5 (5th Cir. 1977), the government asserts that Mr. Grable’s\n shooting of Messrs. Bowling and Manuel to facilitate his escape was\n part and parcel of a Hobbs Act robbery.\n The analogy, though superficially appealing, does not work.\n As noted earlier, the Tenth Circuit has held that force used only in\n an escape attempt is insufficient to make a larceny a Hobbs Act\n\fUSCA11 Case: 23-10544 Document: 67-1 Date Filed: 01/05/2026 Page: 18 of 20\n\n\n\n\n 18 Opinion of the Court 23-10544\n\n robbery. See Smith, 156 F.3d at 1055–56. And we agree with its\n analysis.3\n Second, the government cites to United States v. Garcia-\n Caraveo, 586 F.3d 1230, 1236 (10th Cir. 2009), for the proposition\n that the modern view of robbery “is not necessarily inconsistent\n with the common-law theory of robbery” because a “thief who\n finds it necessary to use force or threatened force after a taking of\n property . . . may in legal contemplation be viewed as one who\n never has the requisite dominion and control of the property to\n qualify as a ‘possessor.’” But Garcia-Caraveo did not involve a\n Hobbs Act robbery, as the issue there was whether a California rob-\n bery conviction constituted a “crime of violence” under U.S.S.G. §\n 2L1.2(b)(1)(A)(ii). See 586 F.3d at 1232. Moreover, the Tenth Cir-\n cuit in that case recognized that “[a]t common law . . . robbery oc-\n curred only when the perpetrator used force or intimidation before\n or during the taking itself; force used to retain the property or to\n escape did not suffice to transform larceny into robbery.” Id. at\n 1233. And, as discussed above, the Tenth Circuit has held that force\n used only in an attempt to escape does not make larceny a Hobbs\n Act robbery. See Smith, 156 F.3d at 1056.\n We therefore reverse Mr. Grable’s convictions on Counts 2\n and 3.\n\n\n\n 3 In addition, Mr. Grable was in on the venture to steal the marijuana from the\n\n beginning. Because he was not a person who only joined the escape phase of\n the scheme, the bank robbery analogy is inapt.\n\fUSCA11 Case: 23-10544 Document: 67-1 Date Filed: 01/05/2026 Page: 19 of 20\n\n\n\n\n 23-10544 Opinion of the Court 19\n\n IV\n Mr. Grable raises two sentencing issues on appeal. First, he\n challenges his consecutive terms of imprisonment under 18 U.S.C.\n §§ 924(c)(1)(A)(iii) and 924(j)(1) in light of Lora v. United States, 599\n U.S. 453 (2023). Second, he argues that aiding and abetting a Hobbs\n Act robbery is not a predicate crime of violence under § 924(c).\n We need not pass on these issues today. Because we set\n aside Mr. Grable’s convictions on Counts 2 and 3, his sentences on\n those convictions are necessarily vacated. Mr. Grable’s sentence\n on Count 2 is vacated because he did not commit a Hobbs Act rob-\n bery. And his Count 3 conviction is vacated because the predicate\n offense that Count 3 relied on was the Hobbs Act robbery charged\n in Count 2. 4\n V\n We set aside Mr. Grable’s convictions on Counts 2 and 3 due\n to insufficient evidence and vacate his sentences on those convic-\n tions.\n\n\n\n 4 Mr. Grable’s conviction and sentence on Count 3 cannot be sustained on an\n\n aiding and abetting theory. As the parties note, aiding and abetting a Hobbs\n Act robbery is a crime of violence for purposes of § 924(c) under our prece-\n dent. See United States v. Wiley, 78 F.4th 1355, 1363 (11th Cir. 2023). But to\n sustain a conviction on an aiding and abetting theory, the government must\n prove beyond a reasonable doubt that someone committed the principal\n crime—here the Hobbs Act robbery—and it has failed to do so. See id. at 1364\n (“To obtain a conviction for aiding and abetting, the government must prove,\n among other things, that someone committed the substantive offense.”).\n\fUSCA11 Case: 23-10544 Document: 67-1 Date Filed: 01/05/2026 Page: 20 of 20\n\n\n\n\n 20 Opinion of the Court 23-10544\n\n Mr. Grable’s 20-year sentence on Count 1 stands. We re-\n mand for the district court to correct the judgment in accordance\n with our opinion.\n REVERSED IN PART, VACATED IN PART, AND\n REMANDED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11235599/", "author_raw": "JORDAN, Circuit Judge:"}]}	JORDAN	LAGOA	TJOFLAT	1		{"JORDAN": ", Circuit", "LAGOA": ", Circuit", "TJOFLAT": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10769014/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,769,811	Federal Trade Commission v. FleetCor Technologies, Inc.	2026-01-06	23-12539	U.S. Court of Appeals for the Eleventh Circuit	{"judges": "Before ROSENBAUM, LAGOA, and WILSON, Circuit Judges.", "parties": "", "opinions": [{"author": "ROSENBAUM, Circuit Judge:", "type": "010combined", "text": "USCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 1 of 76\n\n\n\n\n FOR PUBLICATION\n\n\n In the\n United States Court of Appeals\n For the Eleventh Circuit\n ____________________\n No. 23-12539\n ____________________\n\n FEDERAL TRADE COMMISSION,\n Plaintiﬀ-Appellee,\n versus\n\n CORPAY, INC.,\n RONALD CLARKE,\n Defendants-Appellants.\n ____________________\n Appeal from the United States District Court\n for the Northern District of Georgia\n D.C. Docket No. 1:19-cv-05727-AT\n ____________________\n\n Before ROSENBAUM, LAGOA, and WILSON, Circuit Judges.\n ROSENBAUM, Circuit Judge:\n Great Britain has an expression: “All fur coat and no knick-\n ers.” In the United States, we might say instead, “All hat and no\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 2 of 76\n\n\n\n\n 2 Opinion of the Court 23-12539\n\n cowboy.” Either way, we’d mean all talk and no substance, or some-\n thing looks much better than it really is.\n And that’s what the Federal Trade Commission (“FTC”)\n thought about Corpay, Inc.’s promises to its customers.1 For years,\n Corpay marketed itself as oﬀering large and small businesses fuel\n credit cards that promised savings, control, and transparency. Yet\n when the FTC looked under the hat, it found no cowboy. Beneath\n Corpay’s promises of big savings, the FTC alleged, stood hidden\n charges, misleading practices, and broken commitments.\n So the FTC ﬁled an enforcement action against Corpay and\n its CEO Ronald Clarke. After granting summary judgment for the\n FTC against both Corpay and Clarke, the court also entered per-\n manent injunctive relief against Corpay. Among other things, that\n injunction prohibits Corpay from putting fee disclosures behind a\n hyperlink, requires the company to make the disclosures “unavoid-\n able,” and mandates that Corpay secure a separate assent for each\n fee it charges.\n Corpay now appeals the district court’s entry of summary\n judgment and the permanent injunction against it and Clarke. It\n argues that genuine disputes of material fact preclude summary\n judgment. And even if liability stands, Corpay asserts, the district\n\n\n\n 1 FleetCor Technologies, Inc., rebranded and changed its name to Corpay,\n\n Inc., in March 2024. The district-court decision and all filings in this case refer\n to Corpay as “FleetCor.” But because of the name change, we refer to it as\n “Corpay.”\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 3 of 76\n\n\n\n\n 23-12539 Opinion of the Court 3\n\n court exceeded its equitable authority by issuing an overly broad\n injunction.\n After reviewing the record and the parties’ briefs, and with\n the beneﬁt of oral argument, we mostly disagree. The evidence\n against Corpay is overwhelming, and the company has not created\n a genuine dispute of material fact to preclude summary judgment\n against it. The evidence is similarly damning against Clarke on four\n of the ﬁve counts. But on one count, we agree with Clarke that\n the FTC has failed to establish that he had “some knowledge” of\n the company’s illegal conduct to support summary judgment. As\n for the injunction, we conclude that the district court didn’t abuse\n its discretion in issuing that relief.\n So we aﬃrm the grant of summary judgment against\n Corpay on all ﬁve counts of the FTC’s complaint. And we aﬃrm\n the grant of a permanent injunction against Corpay. We also af-\n ﬁrm the grant of summary judgment on four counts against\n Clarke. But we vacate the grant of summary judgment against\n Clarke on Count II and remand for further proceedings on that\n claim. Finally, we aﬃrm the remainder of the district court’s judg-\n ment, including the permanent injunction.\n I. BACKGROUND\n A. Factual Background\n Corpay is a publicly traded company headquartered in At-\n lanta, Georgia. Ronald Clarke has served as Corpay’s CEO since at\n least 2014.\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 4 of 76\n\n\n\n\n 4 Opinion of the Court 23-12539\n\n Corpay’s core products are “fuel cards,” limited-use credit\n cards for fuel purchases, designed for businesses that use vehicles.\n Corpay advertises that these cards “provide a range of beneﬁts, in-\n cluding spending reports, a replacement for cumbersome reim-\n bursement systems, methods for tracking fuel economy, and access\n to credit.”\n According to Corpay, it has over 200,000 business customers\n and 8,000 employees. Some of Corpay’s largest customers are\n highly sophisticated companies, including FedEx, UPS, Coca-Cola,\n Pepsi, Lowe’s, and Sysco. But Corpay’s primary customer base,\n that is, 90–95% of its customers, includes small- and medium-sized\n businesses. So it’s unsurprising that around 75% of Corpay’s cus-\n tomers have 10 or fewer Corpay cards and 83% have credit limits\n of $20,000 or less. In fact, Corpay’s new-hire materials recognize\n that customers are often small business owners . . . who “work in\n the ﬁeld/drive[] vehicles” and “do[n’t] think of them[selves] as hav-\n ing a ‘ﬂeet’”; are “not always in front of a computer”; and are\n “short on time due to wearing multiple ‘hats.’”\n Corpay oﬀers many types of fuel cards, but three kinds are\n relevant for this case: (1) Fuelman cards, (2) Mastercard cards, and\n (3) co-branded cards. Independent merchants that directly contract\n to be in Corpay’s “Fuelman Network” receive Fuelman cards. Cus-\n tomers may use Corpay’s Mastercard cards at fuel and maintenance\n locations that accept Mastercard. And customers may use the co-\n branded cards, which Corpay operates in partnership with major\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 5 of 76\n\n\n\n\n 23-12539 Opinion of the Court 5\n\n fuel providers like BP, Speedway, and Arco, on either the Fuelman\n or the Mastercard network.\n On December 20, 2019, the FTC brought an action in the\n Northern District of Georgia against Corpay and its CEO Clarke.\n The FTC alleged they committed ﬁve violations of Section 5 of the\n FTC Act, 15 U.S.C. § 45. Counts I through III asserted three kinds\n of deceptive advertising. First, the FTC alleged Corpay created ads\n that falsely promised discounts “per gallon” of fuel when the cus-\n tomer used some of Corpay’s Fuelman Network and Mastercard\n cards. Second, the FTC asserted that a set of Corpay’s ads for its\n Mastercards falsely claimed that customers could limit purchases\n on those cards for “fuel only.” And third, the FTC complained that\n Corpay’s advertisements for both its Fuelman Network and Mas-\n tercard cards falsely represented that they had no transaction fees.\n Count V of the FTC’s complaint alleged Corpay engaged in\n “unfair practices” by charging unauthorized, unexpected add-on\n and late fees to its customers. For its part, Count IV asserted that\n Corpay made false and deceptive representations by indicating on\n billing statements that customers owed these allegedly unlawful\n fees. So Counts IV and V jointly centered on one set of conduct.\n The parties both moved for summary judgment in 2021. We\n discuss the evidence against Corpay and Clarke speciﬁcally at the\n time the district court ruled on the motions.\n 1. Count I: “Per Gallon” Advertisements\n The ﬁrst set of advertisements that the FTC challenged\n claimed that four of Corpay’s cards oﬀer savings for each gallon of\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 6 of 76\n\n\n\n\n 6 Opinion of the Court 23-12539\n\n fuel purchased with them. The content of these ads is not in dis-\n pute, but the wording varies slightly between ads.\n First up, we have the Fuelman Discount Advantage card.\n Ads for that card generally promised that customers would “[e]arn\n 5¢ cash back per gallon” or “[e]arn 5¢ cash back with the Discount\n Advantage FleetCard!” Here’s a representative advertisement for\n this card:\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 7 of 76\n\n\n\n\n 23-12539 Opinion of the Court 7\n\n\n\n\n Second, Corpay oﬀered the Fuelman Diesel Platinum card.\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 8 of 76\n\n\n\n\n 8 Opinion of the Court 23-12539\n\n Ads for that one generally promised that consumers would “[s]ave\n 10¢ per gallon on diesel fuel.” This next image displays a typical ad\n for this card.\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 9 of 76\n\n\n\n\n 23-12539 Opinion of the Court 9\n\n Third, the company oﬀered the Fuelman Commercial Plati-\n num card. Those ads generally represented that the card “oﬀer[ed]\n a 5¢ per gallon discount on both unleaded and diesel fuel.” And\n they highlighted that consumers “[s]ave[d] 5¢ per gallon on un-\n leaded and diesel fuel everyday, from gallon one, with no caps on\n total savings.” Plus, the Fuelman Commercial Platinum card pro-\n moted an additional 3¢-, 4¢-, or 15¢-per-gallon savings for the ﬁrst\n three months. Here’s an image of a typical ad for this card:\n\n\n\n\n Finally, Corpay promoted the Universal Premium Master-\n card. Those ads promised that the customer would “[s]ave up to\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 10 of 76\n\n\n\n\n 10 Opinion of the Court 23-12539\n\n 6¢ per gallon wherever Mastercard is accepted.” A representative\n ad for that card appears below.\n\n\n\n\n As the images above show, for almost all the ads, the com-\n pany displayed the savings promotion in prominent, central text.\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 11 of 76\n\n\n\n\n 23-12539 Opinion of the Court 11\n\n But often they followed the text with an asterisk. This asterisk\n marked a ﬁne, tiny-print disclosure at the bottom of the ad contain-\n ing several caveats to the discount. And these caveats often oper-\n ated in practice to negate or signiﬁcantly decrease any promised\n beneﬁts.\n To show what we mean, consider one of Corpay’s ads pro-\n moting 5¢-per-gallon savings. The ad promised that the card was\n “conveniently accepted at 40,000 fuel sites in the Fuelman Net-\n work: . . . [and] across 6 major national brands, including Chevron,\n Texaco, Loves, Pilot, Sinclair, and ARCO.” But in ﬁne print at the\n bottom of the same ad, the disclaimer contradicted much of the\n promised savings by capping them and by narrowing the network\n both substantially and indeﬁnitely:\n Rebates credited to account statement\n quarterly, and limited to 2,000 gallons\n per quarter. Rebates are subject to for-\n feiture for inactivity or late payment be-\n havior during the quarter. Discount\n does not apply to gallons pumped at the\n Convenience Network of Chevron, Tex-\n aco, Loves, Pilot, Sinclair, and ARCO.\n Convenience Network is subject to\n change without notice.\n So the very brands the ad highlighted as available for use\n were the same ones where no discount applied. This kind of ﬁne-\n print reversal was typical of Corpay’s rebate promotions.\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 12 of 76\n\n\n\n\n 12 Opinion of the Court 23-12539\n\n Another ad oﬀered up to 6¢-per-gallon discounts anywhere\n that accepted Mastercard. But what the ad promised to give, the\n disclaimer took away much of:\n *Earn up to 6¢ per gallon in rebates\n from a combination of 3¢ per gallon\n within the Fuelman Discount Network\n and up to 3¢ per gallon in volume re-\n bates. Purchases must be made with the\n Universal Premium FleetCard Master-\n Card and the account must be in good\n standing. Not valid on aviation, bulk\n fuel, propane or natural gas purchases.\n Volume rebates are based on the num-\n ber of gallons purchased monthly and\n will be calculated on the gallons\n pumped at Level 3 sites . . . . The Fuel-\n man Discount Network is a selected\n group of fuel locations that allow card-\n holders additional savings. For a list of\n participating sites, visit\n www.fuelmandiscountnetwork.com.\n So under the disclaimer, the discount applied at only those\n merchants who entered the Fuelman Discount Network rather\n than all who accepted Mastercard. And the ﬁne text also warned\n that Corpay would limit the rebates to accounts in good standing.\n But it never deﬁned the term. And as we explain later, that turned\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 13 of 76\n\n\n\n\n 23-12539 Opinion of the Court 13\n\n out to be a bit of a black hole. This limitation was typical of the\n disclaimers. The disclaimer similarly failed to explain what “Level\n 3 sites” were, even while it said that Corpay would calculate half\n the rebate based on purchases at such locations.\n And though the FTC presented an expert witness who\n agreed that companies can modify rebates if they fully disclose\n changes, notably missing from these and most (but not all) dis-\n claimers was any indication that Corpay reserved the right to\n change the discount program at any point.\n Still, some ads directed consumers to consult terms and con-\n ditions to learn more. And these terms and conditions allowed the\n company to change or decrease its rebates. Corpay’s expert also\n opined that the substance of the company’s limitations on its re-\n bates was consistent with common industry practices.\n In the end, because of all these constrictions, customers\n ended up with discounts that were substantially lower than the top-\n line value Corpay appeared to promise. According to the FTC’s\n data analyst, the following chart represents the advertised discount\n versus the average actual discount customers received:\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 14 of 76\n\n\n\n\n 14 Opinion of the Court 23-12539\n\n Product Advertised Discount Per Average Actual Discount\n Gallon Per Gallon\n Fuelman Diesel Plati- 10¢ 6¢\n num – 2016\n Fuelman Diesel Plati- 8¢ 6¢\n num – 2017-2019\n Fuelman Commercial 5¢ 3¢\n Platinum\n Fuelman Discount Ad- 5¢ 0.1¢\n vantage\n Universal Premium Mas- 6¢ 1¢\n tercard\n\n\n Plus, it’s undisputed that Corpay “turned oﬀ per gallon dis-\n counts (1) after customers had been using [Corpay] services for\n some period of time, e.g., 6 months or 12 months, or (2) if custom-\n ers did not purchase a certain number of gallons.” So customers\n lost even the signiﬁcantly reduced beneﬁts.\n In fact, in a 2017 email to CEO Clarke, Corpay’s Head of\n Sales admitted as much. He said that “[f ]undamentally [Corpay\n has] had minimal/no [small-to-medium sized business] rebates\n since the beginning of 2015.” And internal customer surveys noted\n that some consumers had complained about not receiving suﬃ-\n cient discounts. Still, in a survey that Corpay’s expert witness con-\n ducted, fewer than 2% of customers in 2020 complained of dis-\n counts.\n 2. Count II: “Fuel Only” Ads\n The second set of ads at issue claimed that customers could\n limit purchases on Corpay Mastercards to “Fuel Only.” And it’s un-\n disputed that in its promotional materials, Corpay advertised these\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 15 of 76\n\n\n\n\n 23-12539 Opinion of the Court 15\n\n cards as “Fuel Only.” These cards contrasted with those that\n Corpay labeled maintenance only; fuel and maintenance only; and\n materials, fuel, and maintenance.\n But Corpay knew its “Fuel Only” representation was false.\n A slide in Corpay’s new-hire materials referred to “Fuel Only” as a\n “misnomer.” It noted that Corpay could limit its Mastercard to\n only purchases at fuel sites but not to speciﬁc products. And while\n “Fuel Only” cards were limited to one purchase per fuel site by de-\n fault, that purchase could be for things other than fuel, like “snacks,\n beer, etc.” “[F]or even more security,” the slide continued, “Fuel\n Only” cards could be “further limit[ed] . . . to purchasing at fuel\n islands.”\n Despite this evidence, a Corpay representative testiﬁed that\n “Fuel Only” cards were limited to “at the pump” purchases. Yet\n Corpay’s expert conceded that Corpay couldn’t limit all non-fuel\n purchases on “Fuel Only” cards. Still, the expert noted, Corpay was\n able to stop more than 2 million transactions through fraud alerts\n for nonfuel purchases.\n Even so, at least some customers complained that employ-\n ees used their Fuel Only cards for nonfuel purchases. In one of the\n more dramatic examples, a customer complained of $208,688.05 in\n purchases of Safeway gift cards on its “Fuel Only” card. And\n Corpay’s own expert concluded that 3% of all transactions and 10%\n of in-store transactions on “Fuel Only” cards were on purchases\n other than fuel.\n 3. Count III: “No Transaction Fees” Ads\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 16 of 76\n\n\n\n\n 16 Opinion of the Court 23-12539\n\n The third set of challenged advertisements boasted that\n Corpay cards had “no transaction fees.” But in fact, Corpay\n charged three fees under certain conditions per transaction or per\n gallon of fuel. These fees included the Convenience Network Sur-\n charge, the Minimum Program Administration Fee, and Level\n 2/High Risk Pricing.\n First, the Convenience Network Surcharge, as Corpay’s\n Terms and Conditions described it, was a fee of up to the greater\n of 10¢ per gallon or $2.50 per transaction “for the use of select\n sites/merchants.” Corpay’s Terms and Conditions didn’t identify\n or deﬁne these “sites,” though. Internal company documents from\n August 2019 referred to this fee as the “Convenience Trx Fee” and\n the “CDN Tran Fee.” And in a deposition, Corpay’s Senior Vice\n President for Revenue Management referred to the Surcharge as a\n “transaction fee.” In a declaration, though, that same Senior Vice\n President said the Surcharge was not a transaction fee but an “out-\n of-network” fee like ATMs or healthcare companies charge.\n Second, the Minimum Program Administration Fee re-\n ferred, under Corpay’s Terms and Conditions, to a 10¢-per-gallon\n or $2.00-per-transaction fee that Corpay could charge when the\n previous month’s average fuel price fell below $3.25 per gallon. Au-\n gust 2019 internal documents said Corpay was charging existing\n but not new customers at 10¢ per gallon. And the Senior Vice Pres-\n ident for Revenue Management conﬁrmed that until 2018, Corpay\n applied this fee to accounts on a per-gallon basis.\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 17 of 76\n\n\n\n\n 23-12539 Opinion of the Court 17\n\n Finally, Corpay had what it euphemistically referred to as\n “Level 2 Pricing.” In its internal documents, Corpay more candidly\n described “Level 2 Pricing” as “High Risk Fees.” Under Corpay’s\n Terms and Conditions, Level 2 Pricing was an incremental charge\n it applied to transactions for those it deemed “High Risk” custom-\n ers, with a maximum of 20¢ per gallon. The August 2019 internal\n documents assessed the fee for Fuelman Network cards at 20¢ to\n 30¢ per gallon, depending on the customer’s risk proﬁle and for\n Mastercard cards at $3 for medium risk and $4 for high risk “per\n trx.”\n Under the Terms and Conditions, “High Risk” meant all cus-\n tomers who (1) had a credit score below a certain level (520 or lower\n for commercial scores, or 660 or lower for individual score); (2) had\n a credit score that dropped 51 points or more in a 3-month period;\n (3) were assessed more than one late fee in a 12-month period; (4)\n made a payment that the customer’s bank did not honor; or (5) “op-\n erate[d] in the trucking or transportation industry.” Of course, given\n the fuel cards’ purpose, many of Corpay’s customers “operate[d]\n in the trucking or transportation industry.” So imposition of these\n fees was not rare.\n In a deposition, Corpay’s Senior Vice President for Revenue\n Management referred to the Level 2 Pricing as a “transaction fee.”\n Later, though, in her declaration, she swore that it was not a fee but\n “risk-based pricing.” Meanwhile, in internal emails, Corpay in-\n structed its customer service representatives to avoid the term\n “High Risk” and instead use “Transaction Fee.”\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 18 of 76\n\n\n\n\n 18 Opinion of the Court 23-12539\n\n In response to this evidence, Corpay stresses that some of its\n witnesses understood the term “transaction fee” to be a fee as-\n sessed once for “every” transaction. And because Corpay doesn’t\n uniformly apply these three fees to every transaction, Corpay rea-\n sons, it does not consider them to be “transaction fees.”\n 4. Counts IV and V: Unauthorized Fees\n In addition to the advertisements, the FTC challenged\n Corpay’s billing customers for seven “unexpected fees.” We’ve al-\n ready discussed three of these (the Convenience Network Sur-\n charge, Minimum Program Administration Fee, and High Risk\n Fees). As for the four other fees, they included FleetAdvance and\n FleetDash, Fraud Protector, Accelerator Rewards, and the Clean\n Advantage Program.\n Corpay’s internal documents deﬁned FleetAdvance & Fleet-\n Dash as a $29.97 monthly charge. Corpay assessed Fraud Protector\n as a charge of $3 per month per card (with a maximum charge of\n $300 per month) for accounts that had at least 10 cards and $15 per\n month per account for customers with 9 or fewer cards. For Accel-\n erator Rewards, Corpay charged customers $4 per month per card.\n Corpay enrolled customers by default in all three of these fees un-\n less they opted out after a 60-day free trial.\n An internal email conﬁrms Corpay similarly automatically\n enrolled customers in the Clean Advantage Program. That was a\n 5¢-per-gallon charge to “oﬀset” emissions from fuel purchased.\n Corpay billed this charge to existing customers who had been with\n the company since at least 2018. But the company did send out a\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 19 of 76\n\n\n\n\n 23-12539 Opinion of the Court 19\n\n notice mailer to customers at the beginning of free trials for Clean\n Advantage, Fraud Protector, and Accelerator Rewards.\n Still, the FTC uncovered evidence that Corpay didn’t make\n customers aware of these fees in advance. Internal emails and cus-\n tomer complaints showed that Corpay did not mention these fees\n to customers during the sales process. And a telephonic survey that\n the FTC’s expert conducted of Corpay’s customers who were as-\n sessed the eight fees revealed that the company informed just\n 7.02% of customers of all fees before charging them. That survey\n produced the following data: 2\n Fee Name Percent of Corpay Customers That\n Were Charged Where an Agreement\n Signer or Update Receiver Was In-\n formed About the Fee in Advance\n Minimum Program Administration Fee 19.15 %\n Level 2 Pricing or High Credit Risk Fee 11.39 %\n Convenience Network Surcharge 30.43%\n Fleet Dash 16.13%\n Clean Advantage 6.25%\n Accelerator Rewards 21.74%\n\n\n\n 2 Corpay’s experts disputed the methodology of this survey. They complain\n participants were asked to remember information they likely could have for-\n gotten, were not given an explicit option to say they did not remember the\n answer, were asked “biased” questions, were informed the survey was being\n conducted for the FTC, and were paid $100 for participation.\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 20 of 76\n\n\n\n\n 20 Opinion of the Court 23-12539\n\n Fraud Protector 14.00%\n\n\n\n Three of the fees (Fraud Protector, Accelerator Rewards,\n and Clean Advantage) did not appear in past Corpay Terms and\n Conditions. The rest were in the Terms and Conditions. Even so,\n Corpay made the document largely inaccessible to customers.\n From 2014 to 2017, Corpay did not post the Terms and Conditions\n online. Instead, it mailed a hard copy to customers after they\n signed up for a card. And internal emails directed employees not\n to provide an electronic copy to customers.\n The company also made the Terms and Conditions diﬃcult\n to read. It printed the document, which contains many provisions,\n in tiny, ﬁne-print text. Indeed, the version Corpay provided to cus-\n tomers was so unreadable that employees had their own “read\n friendly” alternative.\n Besides these deﬁciencies, the FTC uncovered evidence that\n Corpay did not identify fees it charged on its billing statements. In-\n voices stated only a total sum of charges the customer owed to the\n company.\n In the best-case scenario, to ﬁnd itemized fees, customers\n had to look at a separate document: “the Fuel Management Re-\n port.” This practice so tended to eﬀectively hide the charges that,\n on one occasion in March 2016, Corpay employees sent panicked\n emails when a fee was included on an invoice instead of the Fuel\n Management Report.\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 21 of 76\n\n\n\n\n 23-12539 Opinion of the Court 21\n\n Even worse, according to another employee email, before\n September 2017, the company didn’t even disclose some charges\n like the High Risk Fee on the Report. Customers could discover\n the upcharge only by comparing their fuel receipts to their Corpay\n invoice.\n Internal surveys also reported that Corpay noted fees on the\n Report without speciﬁc labels, instead using identiﬁers like “Misc.”\n The FTC’s telephonic survey found that only 25.23% of Corpay’s\n customers saw fees charged on either their invoice or Fuel Manage-\n ment Reports. And to top it oﬀ, Corpay knew that its customers\n were confused and surprised by its fee practices. Eight internal sur-\n veys from 2016–2020 told them so. In the most recent survey, dated\n February 2020, the company found that 38% of customers cited\n fees as the top reason for leaving, with 55% of them pointing to the\n FleetAdvance fee.\n In response to this evidence, Corpay oﬀered its own testi-\n mony.\n First, one of its experts determined that the amount of fuel\n customers purchased did not change when Corpay disclosed a fee\n on the Fuel Management Report (but of course, that was not in the\n invoice).\n Second, several of the company’s executives asserted in tes-\n timony that Corpay had a practice of disclosing fees to customers\n before charging them.\n Third, Corpay introduced evidence that it made changes af-\n ter the FTC advised Corpay of its concerns. “Following the FTC’s\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 22 of 76\n\n\n\n\n 22 Opinion of the Court 23-12539\n\n allegations in this case, [Corpay said, it] sent revised and enhanced\n Terms and Conditions to its existing customers.” These changes\n included “[r]edesign[ing] its Terms & Conditions with a prominent\n fee box up front and simpliﬁed language,” “[s]en[ding] the rede-\n signed Terms & Conditions to its customer base,” and seeking “ap-\n proval from its customer base for these redesigned Terms & Con-\n ditions.”\n For instance, in October 2019, two months before the FTC\n ﬁled its complaint, Corpay rolled out the new Terms and Condi-\n tions with a prominent fee box for new customers. These new\n Terms and Conditions included previously undisclosed fees like\n Clean Advantage Program, Fraud Protector, and Accelerator Re-\n wards, and it described them as “Program Fees.”\n Then, at some point unclear from the record, Corpay ob-\n tained renewed consent from existing customers. Corpay sent its\n customers an online pop up, which notiﬁed the user of new Terms\n and Conditions. That popup presented a hyperlink to see the\n Terms and Conditions and asked them to click “I agree.” The\n popup also told the user that the Terms and Conditions had infor-\n mation on the “fees” on the account. According to an analysis by\n Corpay’s expert, by October 2020 (ten months after the FTC’s com-\n plaint), 81% of customers had accepted the new terms and condi-\n tions.3 Still, 18.8% (19,146 out of 101,472 active accounts) had not\n responded to the popup. And Corpay did not discontinue service\n\n\n 3 By June 30, 2020, this figure was only about 69%.\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 23 of 76\n\n\n\n\n 23-12539 Opinion of the Court 23\n\n to nonresponsive accounts. Only 133 accounts declined the popup,\n and 70 accounts asked for revised Terms and Conditions.\n Corpay referred to this eﬀort as the “Express Informed Con-\n sent Project.” In one internal slide, Corpay explained its reasons\n for the Express Informed Consent Project: “The FTC alleges that\n [Corpay’s] terms and conditions are insuﬃcient, and in particular\n fail to fully disclose certain fees. We disagree with the FTC’s alle-\n gations, but took the opportunity to improve our terms and condi-\n tions.”\n 5. Counts IV and V: Erroneous Late Fees\n The FTC also alleged Corpay charged its customers late fees\n for timely payments. Based on Corpay’s transaction data, the FTC\n put the amount Corpay collected from unfair late-fee practices at\n $213 million in unlawful fees. The FTC corroborated its allegations\n with Corpay’s internal communications, internal studies, em-\n ployee testimony, and even Corpay’s own commissioned study.\n We start with the internal communications. Several show\n Corpay improperly assessed late fees.\n For example, a November 2017 email from the Senior Vice\n President of Product and Growth described erroneous late fees as\n a “massive problem.” And a chat between two supervisors in cus-\n tomer service included the comment that customers “can’t set up\n online bill pay, Checkfree doesn’t work half the time[.] And\n heave[n] forbid you mail a check. . . .”\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 24 of 76\n\n\n\n\n 24 Opinion of the Court 23-12539\n\n Plus, some evidence suggested these failures were inten-\n tional. In a 2017 email, for instance, CEO Clarke asked employees\n for “opportunities to get more late fee revenue in 2018 . . . thru a\n higher rate, less/no grace days, etc, etc.” Along these same lines,\n a former Corpay Revenue Analyst testiﬁed that the Vice President\n of Revenue Management told her that Corpay didn’t make it easy\n for customers to pay electronically because doing so would reduce\n late-fee revenue.\n Even after Corpay implemented online payment systems,\n internal communications revealed that it still had delays in payment\n postings. In particular, “payments made on weekdays post[ed] on\n the next business day, and payments made on weekdays after 5:00\n p.m., on weekends, or on holidays post[ing] two business days after\n payment[.]”\n Several internal studies from 2017 and 2018 also found that\n customers complained of erroneous late fees. For example, one\n 2018 internal customer survey found that customers felt “[l]ate fees\n [are] charged even when a [Corpay] technical error prevents cus-\n tomer on time payment.” And a January 2017 “Customer Risk As-\n sessment” acknowledged “erroneous late fees.” It also identiﬁed\n the reasons as “(1) ‘Check Free payment posting error in Aug. re-\n sulted in payments not getting applied to accounts;’ (2) ‘EFT [Elec-\n tronic Funds Transfer] processing . . . delayed causing accounts to\n lock [recurring];’ (3) ‘Check By Phone constant processing delay\n preventing timely application of payments;’ and (4) ‘Lockbox pro-\n cessing delay or perception.’” Several customers also complained\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 25 of 76\n\n\n\n\n 23-12539 Opinion of the Court 25\n\n of improperly assessed late fees, including through online payment\n systems.\n In an aﬃdavit, Corpay’s treasurer acknowledged that\n Corpay previously could not post online payments within 24\n hours. But the company instructed customers to pay by phone for\n quicker payments. And he insisted the Terms and Conditions and\n the online-payment portal contained information on these cutoﬀs.\n The treasurer also explained the company’s process for pay-\n ments customers made by mail. He testiﬁed that Corpay credited\n “conforming” payments it received by 4:00 p.m. that day. And he\n said that payments “almost never arrive” after 4:00 p.m. Payments\n are “nonconforming” if they’re not in the proper envelope or the\n envelope contains more than a payment slip and check. Corpay\n says requiring conforming payments allows for automatic pro-\n cessing of payments, and Corpay advises customers that non-con-\n forming payments result in delays. The Senior Vice President of\n Product and Growth also testiﬁed that postal slowdowns caused\n any delays in posting payments by mail.\n Still, the FTC’s telephonic survey found that Corpay charged\n 37.90% of its customers late fees even though they paid their bills\n on time. Corpay takes issue with that statistic. Its expert found\n that only 7.44% of customer complaints were about the issues the\n FTC identiﬁed in its complaint, including late fees. That expert also\n found that only between 9 and 14% of invoices were paid late be-\n tween April 2016 and May 2019. And of those that were late, less\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 26 of 76\n\n\n\n\n 26 Opinion of the Court 23-12539\n\n than 2% were late by only one day and 57.1% were late by ﬁve or\n more days.\n More recently, in October 2018, Corpay announced the\n launch of a new online-payment portal. Corpay’s treasurer ex-\n plained the company contracted with another online-portal pro-\n vider, which could do same-day online payments. He claimed that\n now, Corpay credits online payments made by 5:00 p.m. 4\n Corpay also complains that the FTC’s telephonic survey in-\n cluded customers who claimed disputed late-fee charges from be-\n fore 2019, the ﬁrst full year with the online portal. But even one of\n Corpay’s experts analyzed a random sample of 400 payments made\n through the new online portal and uncovered 33 late full payments,\n including eleven—a full third of the payments designated “late”—\n that were paid timely. Of those 33, ﬁve were submitted after 4 p.m.\n the day they were due, six were submitted after 4 p.m. the Friday\n before the Sunday they were due, and 22 were submitted after their\n due date. That same expert found that Corpay credited “conform-\n ing” mailed checks to customers’ accounts the day they were de-\n posited. As for “nonconforming” checks, which made up just 0.8%\n of the sample, Corpay credited them the next day.\n\n\n\n\n 4 In Corpay’s reply brief, the company acknowledges its cutoff as 4:00 p.m.\n ET, not 5:00 p.m. Corpay’s expert also cited 4:00 p.m. ET as the cutoff.\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 27 of 76\n\n\n\n\n 23-12539 Opinion of the Court 27\n\n 6. Ronald Clarke’s Conduct\n Besides charging Corpay, the FTC alleged that Corpay’s\n CEO Ronald Clarke was personally liable for the company’s con-\n duct.\n Throughout the alleged conduct and to the present, Clarke\n has served as Corpay’s CEO, President, and Chairman of the\n Board. As the district court explained, he “makes and supervises\n company policy and is the ‘ultimate decision-maker,’ ‘along with\n the board’ . . . .” Clarke is also “ultimately responsible” for\n Corpay’s “day-to-day decisions” and “pays ‘close attention’ to\n [Corpay’s] fuel card business.” All Corpay’s employees report to\n him.\n The FTC presented evidence that Clarke had direct\n knowledge of Corpay’s charged conduct. As the district court sum-\n marized, this evidence included the following: “(1) a volume of\n email communications between Clarke and his subordinates; (2)\n warnings from shareholders and partners; (3) customer complaints\n to [Corpay] and the Better Business Bureau; (4) public reports; (5)\n internal studies with respect to marketing, fees, and customer attri-\n tion; and (6) Clarke’s general degree of involvement discussing the\n practices at issue.”\n Several emails showed Clarke had knowledge of the com-\n pany’s marketing and fee-disclosure processes. In one exchange, a\n subordinate told Clarke that customers often paid more than the\n pump price of fuel despite per-gallon savings promised. In another\n noteworthy exchange, Clarke asked his Head of Sales whether\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 28 of 76\n\n\n\n\n 28 Opinion of the Court 23-12539\n\n “there was ‘a mechanism’ . . . that ‘forfeits customer discounts.’”\n The Head of Sales replied, “We added that language in early 2015\n and used it as a basis to remove SMB [MasterCard] volume rebates.\n Fundamentally we have had minimal/no SMB rebates since the be-\n ginning of 2015.”\n Another time, Clarke asked what notiﬁcation a customer re-\n ceives when Corpay bills them for a fee for the ﬁrst time. His Head\n of Sales responded, “None. Other than a T&C change.” He con-\n tinued, explaining that when the terms and conditions allowed\n charging a higher rate, Corpay oﬀered no other notice for an in-\n creased fee rate.\n And as for late fees, in December 2017, Clarke asked if there\n were “opportunities to get more late fee revenue in 2018 . . . thru a\n higher rate, less/no grace days, etc, etc.”\n Clarke also received information on customer complaints\n about discounts and fee practices through subordinates, sharehold-\n ers, and corporate partners.\n Besides the information he obtained from these individuals,\n Clarke was in the direct decision-making process for some of the\n fees. For example, “Clarke approved the decision to implement the\n Minimum Program Administration Fee and the subsequent deci-\n sion to increase the amount of that fee.” Still, he testiﬁed he didn’t\n know the speciﬁcs of how the fee would be implemented.\n Clarke also received and acknowledged public reports criti-\n cizing Corpay’s business practices. In March 2017, he got an email\n telling him “[a]nother report just published,” with the report\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 29 of 76\n\n\n\n\n 23-12539 Opinion of the Court 29\n\n attached. Clarke answered, “Here we go again! This article seems\n particularly stupid to me.” That report contained information on\n multiple Better Business Bureau complaints about fees. In re-\n sponse, Clarke instructed subordinates to ﬁx it “just like we did last\n time.” And in an investors’ call in May 2017, Clarke described pub-\n lic reports on the company’s fees, billing practices, and customer\n service as “fake news and exaggerations.”\n But Clarke testiﬁed that after the articles, he formed groups\n to ensure Corpay’s compliance with applicable laws and improve\n customer experience. And the Senior Vice President of Product\n and Growth testiﬁed that Clarke “approve[d] [the] customer expe-\n rience initiative work.”\n B. Procedural Background\n On December 20, 2019, the FTC ﬁled its complaint against\n Corpay under 15 U.S.C. § 53(b). It alleged that Corpay and Clarke\n violated 15 U.S.C. § 45(a) in several ways. In particular, the FTC\n alleged three counts of deceptive advertising (based on Corpay’s\n “per gallon,” “fuel only,” and “no transaction fees” ads). It also\n pressed one count of unfair fee and billing practices for charging,\n without express, informed consent, the seven fees we’ve discussed,\n as well as late fees. And it charged one count of deceptive billing\n practices for representing to customers that they owed these fees.\n The FTC sought both injunctive and equitable monetary relief.\n 1. The Summary-judgment Order\n In 2021, the FTC moved for summary judgment on all ﬁve\n counts. Corpay also moved for summary judgment, asserting that\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 30 of 76\n\n\n\n\n 30 Opinion of the Court 23-12539\n\n the FTC cannot obtain monetary relief or permanent injunctive re-\n lief. Because the Supreme Court in AMG Capital Management, LLC\n v. FTC, 593 U.S. 67, 82 (2021), held that 15 U.S.C. § 53(b) does not\n authorize equitable monetary relief, the district court granted\n Corpay’s motion as to monetary relief.\n The court also granted summary judgment to the FTC on\n all ﬁve counts against both Corpay and Clarke. Construing all gen-\n uine disputes of material fact in favor of Corpay, the court con-\n cluded for the ﬁrst three counts as to all challenged ads that “(1)\n there was a representation; (2) the representation was likely to mis-\n lead customers acting reasonably under the circumstances; and (3)\n the representation was material.”\n And the court recognized that the remaining two counts\n about fee practices “r[o]se[] [or] f[e]ll[]” together. As to the unfair-\n fees count, the court granted summary judgment because it con-\n cluded Corpay’s fee practices “(1) . . . cause or are likely to cause\n substantial injury to consumers; (2) the injury is not reasonably\n avoidable by consumers; and (3) the injury is not outweighed by\n any countervailing beneﬁts to consumers or competition.” Then\n the court applied the same test to Corpay’s billing statements that\n it used to evaluate the challenged ads in Counts I through III. After\n doing so, the court granted summary judgment on the ﬁnal count.\n As for Clarke’s personal liability, the court held that Clarke\n had not shown a genuine dispute that he had “authority to control”\n Corpay’s actions and “some knowledge of the practices” chal-\n lenged. So the court granted summary judgment to the FTC.\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 31 of 76\n\n\n\n\n 23-12539 Opinion of the Court 31\n\n Next, the district court considered whether permanent in-\n junctive relief was appropriate. As the court explained, that relief\n was appropriate if “the defendant’s past conduct indicates that\n there is a reasonable likelihood of further violations in the future.”\n And on this record, the court found that “the mountain of evidence\n presented by the FTC demonstrates that [Corpay’s] violations were\n far-reaching.” The court also determined that Corpay’s “deceptive\n advertising and unfair fee practices were ingrained in the fabric of\n the company for years.” And, the court said, “there is unrefuted\n evidence in the record that the conduct was intentional — and that\n it came straight from the top.”\n Beyond these considerations, the court found “that Defend-\n ants have in no way ‘recogni[zed] the wrongful nature of their con-\n duct’ and, as the business is still fully operational, the ‘occupation’\n surely ‘present[s] opportunities for future violations.’”\n But the court didn’t stop with Corpay’s past conduct and the\n possibility of future violations. Rather, it found that “there is de-\n monstrable record evidence — contrary to Defendants’ emphatic\n position — that [Corpay]’s unfair practices persist.”\n In support, the court cited Corpay’s “own internal study\n from 2020” of customer dissatisfaction with fees. The court also\n noted that Corpay “ha[d] not provided any evidence that it has im-\n plemented an aﬃrmative disclosure process or that it does not au-\n tomatically opt customers in to fees for ‘programs’ they have not\n requested.” As for the advertisements, the court noted that “the\n speciﬁc advertisements at issue . . . are no longer circulated.” But\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 32 of 76\n\n\n\n\n 32 Opinion of the Court 23-12539\n\n even so, the court continued, “such voluntary cessation is not ade-\n quate to protect against future violations where [Corpay] is easily\n able to put forth similar ads anew.” And overall, the court rea-\n soned, “because the harm involved small amounts [of ] losses\n spread to many people, the public interest in enjoining future con-\n duct is further increased.”\n In sum, the district court found “though some of [Corpay]’s\n unlawful practices have ceased, others continue and, further,\n [Corpay]’s past repetitive ‘conduct indicates that there is a reasona-\n ble likelihood of further violations in the future.’” So the district\n court denied Corpay’s motion for summary judgment as to injunc-\n tive relief. Instead, the court determined “some form of perma-\n nent injunctive relief is appropriate[.]”\n 2. Remedial Proceedings\n Still, the court concluded that the “speciﬁc scope” of that\n “relief require[d] additional consideration.” To determine the ap-\n propriate scope, the court held an evidentiary hearing.\n At the hearing, Corpay explained that it reformed its disclo-\n sures in advertisements. It said that its disclosures now had clarify-\n ing language in the same font, on the same page or medium, as its\n advertised claim. The company also insisted it no longer advertises\n “fuel only” and “no transaction fees” cards and has generally\n cleaned up advertisements. But the FTC maintained that Corpay’s\n ads continued to promote “per-gallon savings with ﬁne-print foot-\n notes.”\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 33 of 76\n\n\n\n\n 23-12539 Opinion of the Court 33\n\n As for its billing practices, Corpay said that under its post-\n 2018 reformed payment system, now 85% of customers pay online,\n 8% pay by phone, and 7% pay by mail. Corpay also represented\n that since 2020, it has reformed its product oﬀerings to center\n around “packages” (regular, plus, and premium) at diﬀerent\n monthly price points. These “packages,” Corpay explained, re-\n place most of the challenged add-on fees for new customers. So\n since 2020, Corpay asserted, it has not separately charged new cus-\n tomers for FleetDash, Accelerator Rewards, Fraud Protector, and\n the Convenience Network Surcharge. Since 2020, Clean Ad-\n vantage has also been a separate product that customers can pur-\n chase. And since 2017, new customers have not been subject to the\n “minimum program fee.”\n Still, Corpay continues to assess new customers the “high\n risk fee” if they make late payments or have low credit scores. And\n Corpay notiﬁes these customers of the high-risk fee through only\n the Fleet Management Report.\n Plus, Corpay’s pre-2020 existing customers are still enrolled\n in and charged their separate fees under the old model. At the time\n of the hearing (October 2022), those pre-2020 customers made up\n about 65 to 70% of Corpay’s customers.\n Corpay justiﬁed its continued assessment of those fees based\n on its Express Informed Consent Project. Under that Project,\n Corpay said, by October 2022, 96% of its pre-2020 customers had\n aﬃrmatively consented to the new terms and conditions. Corpay\n also claimed it modeled its new hyperlinked-terms-and-conditions\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 34 of 76\n\n\n\n\n 34 Opinion of the Court 23-12539\n\n structure after the practices of companies like Bank of America and\n Capital One.\n The FTC took issue with Corpay’s justiﬁcation of its fees. It\n asserted that as few as 4% of customers actually clicked to view the\n terms and conditions.5 And the FTC highlighted four customer\n complaints from 2022 about deceptive fee billing.\n At the hearing, the court announced that it wasn’t “100 per-\n cent convinced . . . that a perfect form of indicating informed con-\n sent is the ultimate talisman of success[.]”\n In an eﬀort to resolve the case, the court recommended me-\n diation. But the parties weren’t able to negotiate a resolution.\n So on June 8, 2023, the district court issued a 22-page order\n granting the FTC a permanent injunction. As the court recog-\n nized, “[t]he Complaint charges that Defendants have engaged in\n deceptive and unfair acts or practices in violation of Section 5 of\n the FTC Act . . . in the promoting, oﬀering for sale, and servicing\n of [Corpay’s] fuel card products[, and t]he Complaint seeks perma-\n nent injunctive relief . . . for the Defendants’ deceptive and unfair\n acts or practices as alleged therein.” Then the court found that “a\n\n\n\n 5 Corpay maintains it does not keep complete data on the number of clicks on\n the Terms and Conditions, and the data the FTC cites is incomplete, repre-\n senting only the minimum number of customers who clicked the link. Noting\n the data goes back to January 2017, Corpay also asserts the figure does not\n come from the “Express Informed Consent Project” but “from a completely\n different portion of the website.”\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 35 of 76\n\n\n\n\n 23-12539 Opinion of the Court 35\n\n permanent injunction containing the provisions” in the order was\n “proper.”\n That injunction prohibits deceptive advertising and failure to\n credit timely payments, requires increased disclosure in advertise-\n ments, and contains compliance mechanisms. But most relevantly\n for this case, the court also permanently restrained Corpay from\n charging for items without ﬁrst obtaining a customer’s express in-\n formed consent after Corpay “conspicuously disclose[d]” all related\n information:\n Defendants are permanently restrained\n and enjoined from selling or charging\n for Add-On Products or Services with-\n out ﬁrst securing a customer’s Express\n Informed Consent to charge for each\n particular Add-On Product or Service\n charged. In obtaining Express Informed\n Consent, Defendants must Clearly and\n Conspicuously disclose all required in-\n formation for each Add-On Product or\n Service.\n Defendants . . . in connection with Pay-\n ment Products, are permanently re-\n strained and enjoined from billing a\n consumer for any charge unless Defend-\n ants have obtained the consumer’s Ex-\n press Informed Consent to that charge.\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 36 of 76\n\n\n\n\n 36 Opinion of the Court 23-12539\n\n Defendants . . . are permanently re-\n strained and enjoined from billing exist-\n ing consumers for any Add-On Products\n or Services and fees for which Defend-\n ants have not previously secured the\n consumer’s Express Informed Consent.\n The order deﬁnes “Express Informed Consent” to require\n several components. And to avoid confusion, the order speciﬁes\n examples that don’t qualify as “Express Informed Consent.” In par-\n ticular, the order requires “Express Informed Consent” to consist\n of an aﬃrmative act that, based on the circumstances, clearly\n shows the customer agreed to the charge:\n [A]n aﬃrmative act communicating un-\n ambiguous assent to be charged, made\n after receiving and in close proximity to\n a Clear and Conspicuous disclosure of\n the following information related to the\n charge(s): (a) the product, service, fee,\n or interest associated with the charge;\n (b) the speciﬁc amount of the charge; (c)\n whether the charge is recurring and the\n frequency of recurrence; and (d) under\n what circumstances the charge will be\n incurred. The following are examples\n of what does not constitute Express In-\n formed Consent to be charged:\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 37 of 76\n\n\n\n\n 23-12539 Opinion of the Court 37\n\n 1. Assent obtained solely\n through the use or continued\n use of Corporate Defendant’s\n Payment Products;\n 2. Assent that Corporate De-\n fendant reserves the right to\n change the amount or terms\n of the charge, without sepa-\n rately having obtained from\n the consumer an aﬃrmative\n action communicating assent\n for the particular change in\n the amount or terms of the\n charge;\n 3. Assent to more than one charge\n through a single expression of as-\n sent;\n 4. Assent obtained only after a\n consumer has been charged,\n including through disclosure\n on the consumer’s billing\n statement, without a separate\n aﬃrmative act of assent by\n the consumer; and\n 5. Assent obtained solely\n through any practice or user\n interface that has the\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 38 of 76\n\n\n\n\n 38 Opinion of the Court 23-12539\n\n substantial eﬀect of subvert-\n ing or impairing consumer\n autonomous decision-making\n or choice, including but not\n limited to using text that is\n not easily legible. Material\n terms may not be disclosed be-\n hind a hyperlink or tooltip but\n can be disclosed in a dropdown\n icon or pop-up that requires con-\n sumers to provide assent immedi-\n ately after the disclosure of the\n material terms . . . .\n The order deﬁnes “Clear and Conspicuous” as “a required\n disclosure [that] is diﬃcult to miss (i.e., easily noticeable) and easily\n understandable by ordinary consumers, including in all of the fol-\n lowing ways: . . . 4. In any communication using an interactive\n electronic medium, such as the Internet or software, the disclosure\n must be unavoidable.”\n Corpay now appeals the district court’s order granting sum-\n mary judgment against it and Clarke. It also seeks vacatur of the\n Express Informed Consent provisions of the permanent injunction,\n independent of the liability decision.\n II. DISCUSSION\n Corpay raises three principal challenges to the district\n court’s judgment: that the court (1) improperly granted summary\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 39 of 76\n\n\n\n\n 23-12539 Opinion of the Court 39\n\n judgment on all ﬁve counts of the of the FTC’s complaint; (2) erred\n in granting summary judgment as to Clarke’s personal liability; and\n (3) exceeded its equitable authority in fashioning the “Express In-\n formed Consent” portions of the permanent injunction.\n For the most part, we disagree. The FTC presented undis-\n puted evidence that entitles it to judgment as a matter of law on all\n ﬁve counts against Corpay. And it has similarly met its burden on\n four counts against Clarke. But we agree that the FTC has not met\n its burden to show the absence of a genuine dispute of material\n fact as to Clarke’s liability on Count II. See Celotex Corp. v. Catrett,\n 477 U.S. 317, 323 (1986).\n As for the “Express Informed Consent” provisions of the\n permanent injunction, we conclude that the district court didn’t\n abuse its discretion. Rather, the court acted within its traditional\n equitable authority. So we aﬃrm the grant of a permanent injunc-\n tion against Corpay. But we vacate the injunction against Clarke\n and remand to the district court to account for the lack of summary\n judgment on Count II.\n Our discussion proceeds in four parts. First, we review the\n district court’s grant of summary judgment on the three deceptive\n advertising counts (Counts I–III). Second, we consider the billing-\n practice counts (Counts IV and V). Third, we address Clarke’s per-\n sonal liability. Finally, we evaluate the scope of the permanent in-\n junction.\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 40 of 76\n\n\n\n\n 40 Opinion of the Court 23-12539\n\n A. The district court correctly granted summary judgment to\n the FTC on Counts I through III alleging deceptive adver-\n tising.\n We begin with the district court’s decision granting sum-\n mary judgment on Counts I through III, the deceptive-advertising\n counts. We review de novo a grant of summary judgment. McGriﬀ\n v. City of Miami Beach, 84 F.4th 1330, 1333 (11th Cir. 2023). Sum-\n mary judgment is appropriate when “no genuine dispute as to any\n material fact” exists “and the movant is entitled to judgment as a\n matter of law.” Id. (quoting Fed. R. Civ. P. 56(a)).\n We have a genuine dispute of material fact only if a “reason-\n able jury could return a verdict for the nonmoving party.” Anderson\n v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party\n bears the burden of showing the absence of a genuine dispute. Ce-\n lotex Corp., 477 U.S. at 323. Once the moving party does so, the\n opponent “must do more than simply show that there is some met-\n aphysical doubt as to the material facts . . . . ” Scott v. Harris, 550\n U.S. 372, 380 (2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Ra-\n dio Corp., 475 U.S. 574, 586–587 (1986)). And when the record “bla-\n tantly contradict[s]” one side’s version of events so much so that\n “no reasonable jury could believe it,” a court need not adopt that\n version in deciding summary judgment. Id.\n Corpay does not challenge the overarching legal standard\n under which the district court evaluated its advertisements. In-\n stead, it argues that the district court improperly resolved genuine\n disputes of material fact relating to all three counts.\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 41 of 76\n\n\n\n\n 23-12539 Opinion of the Court 41\n\n To frame our discussion, we start with the governing stand-\n ard under § 5(a) of the FTC Act, 15 U.S.C. § 45(a). To establish\n deceptive advertising, the FTC must show that (1) the defendant\n made a representation; (2) the representation was likely to mislead\n reasonable customers acting under the circumstances; and (3) the\n representation was material. FTC v. On Point Cap. Partners, LLC, 17\n F.4th 1066, 1079 (11th Cir. 2021). A practice may qualify as decep-\n tive without proof of intent. Orkin Exterminating Co. v. FTC, 849\n F.2d 1354, 1368 (11th Cir. 1988).\n We review de novo the district court’s decision to grant sum-\n mary judgment. So in conducting our review, we assess the evi-\n dence in the light most favorable to Corpay as the non-moving\n party. Scott, 550 U.S. at 380.\n Generally, whether an advertisement is likely to mislead rea-\n sonable consumers presents a question of fact. See On Point, 17\n F.4th at 1079–80. But we may resolve that question on summary\n judgment “if the evidence is so one-sided that there can be no\n doubt about how the question should be answered.” AutoZone, Inc.\n v. Strick, 543 F.3d 923, 929 (7th Cir. 2008) (quotation marks omit-\n ted). Here, the undisputed evidence establishes that each set of ad-\n vertisements made material, false representations. As a result, the\n district court properly entered summary judgment for the FTC on\n all three counts. We address each in turn.\n 1. Count 1: “Per Gallon Discount” Advertisements\n First, we consider the “per gallon” advertisements. The dis-\n trict court concluded that no reasonable factﬁnder could disagree\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 42 of 76\n\n\n\n\n 42 Opinion of the Court 23-12539\n\n that “the net impression of the representations in the ads . . . prom-\n ise that consumers would be aﬀorded certain per-gallon savings\n throughout the Fuelman Network and wherever MasterCard is ac-\n cepted, without condition or caveat.” Corpay doesn’t challenge the\n materiality of these representations. It also doesn’t dispute that\n customers failed to receive the advertised discounts. And after re-\n viewing the content of these advertisements, we agree with\n Corpay’s determinations in these regards. As we’ve described,\n these ads generally contained a central, large-font claim to per-gal-\n lon discounts with small-print disclosures and caveats that eﬀec-\n tively negated much, if not all, of the advertised savings.\n Corpay instead contends that certain caveats and disclaimers\n created factual disputes about whether the ads were deceitful. In\n support, Corpay makes six assertions: (1) some of the advertise-\n ments contained language that savings would be “up to” the speci-\n ﬁed amount; (2) Corpay presented evidence that its customers\n were “sophisticated,” so they would have understood the savings\n to have caveats; (3) Corpay disputed evidence that customers com-\n plained about discounts; (4) some but not all the ads’ disclosures\n reserved the right to alter the discounts; (5) Corpay did not have to\n reserve the right to alter its discounts because that’s an industry\n standard term; and (6) most of the advertisements contained text\n with asterisks that led to the small-print disclosures.\n We are not persuaded.\n First, that a minority of advertisements promised savings\n “up to” a certain amount does not create a dispute of material fact.\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 43 of 76\n\n\n\n\n 23-12539 Opinion of the Court 43\n\n As our sister circuits have recognized, “each advertisement must\n stand on its own merits; even if other advertisements contain accu-\n rate, non-deceptive claims, a violation may occur with respect to\n the deceptive advertisements.” FTC v. E.M.A. Nationwide, Inc., 767\n F.3d 611 (6th Cir. 2014) (citation and quotation marks omitted); see\n also Removatron Int’l Corp. v. FTC, 884 F.2d 1489, 1497 (1st Cir. 1989).\n And most of Corpay’s ads in this category omitted the “up to” qual-\n iﬁer. So even when we consider the few that included the “up to”\n language, it doesn’t absolve Corpay of its violations.\n Second, Corpay’s evidence that altering rebates with disclo-\n sure is an “industry-standard” practice doesn’t create a triable issue.\n The relevant question is whether Corpay changed rebates without\n disclosure. And the record shows it did.\n Third, Corpay’s reliance on the supposed sophistication of\n its customer base also fails. The only evidence Corpay cites to sup-\n port its argument is that it does business with large, multinational\n corporations like Coca-Cola and FedEx. But even Corpay concedes\n that, at most, these brands make up just 10% of its business. And\n it doesn’t dispute that the vast majority of its customers lack similar\n sophistication.\n Fourth, whether customers complained does not raise a ma-\n terial fact. Actual deception is not an element of an FTC deceptive-\n advertising claim; the question is whether an ad is likely to mislead.\n See On Point, 17 F.4th at 1079. A false advertisement can be likely to\n deceive even if no consumer complains. And in any case, the dis-\n trict court excluded the expert report Corpay relies on to dispute\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 44 of 76\n\n\n\n\n 44 Opinion of the Court 23-12539\n\n that customers complained. But even if it hadn’t, that report did\n not examine the advertisements at issue.\n Finally, Corpay’s disclaimers don’t save its advertisements.\n Disclaimers or qualifying language may in some circumstances dis-\n pel an otherwise misleading impression. But as the Ninth Circuit\n has explained, that’s not the case when a disclaimer is small, ambig-\n uous, or contradicted by the body of the ad. See FTC v. Cyber-\n space.Com LLC, 453 F.3d 1196, 1200–01 (9th Cir. 2006) (“A solicita-\n tion may be likely to mislead by virtue of the net impression it cre-\n ates even though the solicitation also contains truthful disclo-\n sures.”).\n The First Circuit has reached the same conclusion. FTC v.\n Direct Mktg. Concepts, Inc., 624 F.3d 1, 12 (1st Cir. 2010). It has said\n that disclaimers “are not adequate to avoid liability unless they are\n suﬃciently prominent and unambiguous to change the apparent\n meaning of the claims and to leave an accurate impression.” Id.\n (quotation marks omitted).\n Corpay’s ads fall into the category of ads with insufficient\n disclosures. The disclosures were too small to suggest that con-\n sumers actually read them. After all, Corpay’s own employees had\n special, larger versions of the disclosures so they could read them.\n And even if the consumers were able to and did read the dis-\n claimers, the disclaimers contained vague, confusing, and arguably\n contradictory terms. Many disclaimers didn’t warn that Corpay\n could discontinue discounts without notice after a few months or\n with insuﬃcient purchases. And they directed consumers to vague\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 45 of 76\n\n\n\n\n 23-12539 Opinion of the Court 45\n\n terms and conditions or customer service. Most tellingly, many\n disclaimers excluded discounts from major retailers that the body\n of the ads featured prominently as providing discounts. Plus, noth-\n ing in the disclaimers gave customers notice that the company “had\n [issued] minimal/no [small-to-medium sized business] rebates\n since the beginning of 2015.” In short, the undisputed evidence\n shows that Corpay’s “per-gallon discount” advertisements were de-\n ceptive as a matter of law. 6\n 2. Count II: “Fuel Only” Advertisements\n We turn next to Count II and the “Fuel Only” ads. The dis-\n trict court didn’t err in granting summary judgment to the FTC on\n this count.\n Corpay’s ads represented that it could restrict its cards to\n “Fuel Only” purchases. Corpay doesn’t dispute this. Nor does it\n challenge the district court’s conclusion that this representation\n was material. Instead, Corpay argues that a genuine dispute exists\n\n 6 Under the less demanding clearly erroneous standard of review (as opposed\n\n to the more demanding de novo standard under which we review a grant of\n summary judgment like the one here), we have determined that a district\n court did not err when it found that “disclosures written in relatively smaller\n and pale-colored font” did not cure website “language in larger, more colorful\n font.” On Point, 17 F.4th at 1079–80; see also FTC v. Brown & Williamson Tobacco\n Co., 778 F.2d 35, 45 (D.C. Cir. 1985) (similarly upholding under clearly errone-\n ous review a finding that a disclosure that was “virtually illegible form, placed\n in an inconspicuous corner of [the] advertisements” did not alter an advertise-\n ments representation). Those decisions underscore the same principle that\n governs here: tiny or otherwise-obscure disclosures can’t overcome a decep-\n tive net impression.\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 46 of 76\n\n\n\n\n 46 Opinion of the Court 23-12539\n\n as to whether the ads’ claim was false and therefore likely to de-\n ceive. In support, Corpay relies on testimony from one of its ex-\n ecutives asserting that “Fuel Only” cards were limited to authoriz-\n ing fuel only purchases “at-the-pump.”\n But the record “blatantly contradict[s]” that testimony, Scott,\n 550 U.S. at 380. Internal documents described “Fuel Only” as a\n “misnomer,” acknowledged that “Fuel Only” cards could be used\n to purchase snacks, beer, and other non-fuel items, and explained\n that “at-the-pump” restrictions were merely optional and applied\n only when a customer aﬃrmatively selected them. Even Corpay’s\n own expert found 10% of in-store purchases and 3% of all transac-\n tions with “Fuel Only” cards were not for fuel. And customers\n complained of non-fuel purchases on their “Fuel Only” cards—in\n one case, $208,688.05 in purchases of Safeway gift cards.7\n On this record, no reasonable jury could ﬁnd Corpay in fact\n limited “Fuel Only” cards to fuel purchases. So the district court\n did not err in granting summary judgment.\n 3. Count III: “No Transaction Fees” Advertisements\n\n\n\n\n 7 Corpay cursorily disputes citation to these customer complaints as inadmis-\n sible hearsay. But Corpay raises its argument only “in a passing reference . . .\n in a footnote.” See LaCroix v. Town of Fort Myers Beach, Fla., 38 F.4th 941, 947\n n.1 (11th Cir. 2022). So Corpay forfeits this argument. And in any case, even\n if the district court should have excluded these complaints—to be clear, we\n don’t opine on this issue—the record still contradicts Corpay’s narrative with-\n out them.\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 47 of 76\n\n\n\n\n 23-12539 Opinion of the Court 47\n\n We consider next Count III of the complaint, which alleges\n Corpay falsely represented that some of its cards carried “no trans-\n action fees.” Corpay does not dispute that its advertisements ma-\n terially represented that its cards had “no transaction fees.” Nor\n does it dispute that it charged three of its fees (the Convenience\n Network Surcharge, Minimum Program Administration Fee, and\n High Risk Pricing)8 on a “per transaction” or “per gallon” basis un-\n der some conditions. Instead, Corpay argues that a reasonable jury\n could ﬁnd that customers would understand the term “transaction\n fee” as “a fee charged by a company per every transaction (for the\n right to make the transaction).” And it contends that its Conven-\n ience Network Surcharge, Minimum Program Administration Fee,\n and High Risk Pricing were not actually “transaction fees,” even\n though Corpay itself referred to them that way and charged them\n on a transactional basis to many of its customers.\n We think that’s nonsensical. Internally, Corpay referred to\n both the Convenience Network Surcharge and High Risk Pricing\n as “transaction fees.” Corpay charged both fees “per transaction.”\n And though Corpay charged the Minimum Program Administra-\n tion Fee “per gallon,” that still qualiﬁes as a “transaction fee” be-\n cause the relevant transactions are fuel purchases, which are\n\n 8 Corpay disputes that “High Risk Pricing” was a “fee.” Instead, Corpay as-\n serts that it’s “a form of risk based pricing” for higher-risk customers. But this\n distinction is purely semantics. High Risk Pricing was an additional charge on\n every transaction for a certain class of customers. In other words, it was a fee.\n Indeed, internal documents indicate that Corpay uniformly applied it to each\n transaction for those customers.\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 48 of 76\n\n\n\n\n 48 Opinion of the Court 23-12539\n\n assessed “per gallon.” So Corpay also charged that fee “per trans-\n action.”\n We can slice the baloney only so thin. A fee called a “trans-\n action fee” that is charged per transaction is a transaction fee. In-\n deed, Corpay’s Terms and Conditions allowed the High Risk Pric-\n ing fee for any customer who “operates in the trucking or transporta-\n tion industry.” So a huge chunk of Corpay’s customer base—busi-\n nesses that purchase fuel cards for vehicle ﬂeets—qualiﬁed as “High\n Risk” and was subject to a blanket fee per transaction.\n The only record evidence Corpay cites to support its deﬁni-\n tion is the testimony of its executives that the relevant fees were\n not considered “transaction fees.” This testimony does not create\n a genuine dispute because the record “blatantly contradict[s]” it,\n Scott, 550 U.S. at 380.\n Corpay’s eﬀorts to liken the three transaction fees to “Over-\n draft Fees,” which it asserts are not “transaction fees,” fares no bet-\n ter. Overdraft fees are diﬀerent in kind; they apply when the cus-\n tomer spends beyond the funds available in an account. The fees\n here, by contrast, kick in under regular use of the card.\n No reasonable fact ﬁnder could conclude that Corpay did\n not charge “transaction fees.” For that reason, we hold that the\n district court properly granted summary judgment to the FTC on\n Count III, just as it did on Counts I and II.\n B. The FTC is entitled to summary judgment on Counts IV\n and V of its complaint alleging deceptive and unfair billing\n practices.\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 49 of 76\n\n\n\n\n 23-12539 Opinion of the Court 49\n\n We move next to Corpay’s challenge to the grant of sum-\n mary judgment on Counts IV and V of the FTC’s complaint. As\n we’ve mentioned, if the FTC is entitled to summary judgment on\n Count V, alleging unfair billing practices, it is also entitled to sum-\n mary judgment on Count IV. Corpay doesn’t disagree. So we need\n address only Count V, alleging unfair practices in violation of the\n FTC Act.\n Under Section 13(b) of the FTC Act, “[w]henever . . . any\n person, partnership, or corporation is violating, or is about to vio-\n late” Section 5 of the Act, the FTC may bring an action in federal\n district court. (15 U.S.C. § 53(b); id. § 45(a)). Section 5(a) of the\n FTC Act, 15 U.S.C. § 45(n), in turn, deﬁnes a practice as “unfair” if\n it “[1] causes or is likely to cause substantial injury to consumers\n which is [2] not reasonably avoidable by consumers themselves and\n [3] not outweighed by countervailing beneﬁts to consumers or to\n competition.” In assessing whether an act is “unfair,” the FTC\n “may consider established public policies as evidence to be consid-\n ered with all other evidence.” Id. But “[s]uch public policy consid-\n erations may not serve as a primary basis for” determining an act\n as “unfair.” Id.\n Corpay argues that the district court erred in applying these\n standards, so it improperly granted summary judgment on Count\n V (and by extension Count IV) as to both the seven unauthorized\n fees and the late fees. We disagree. When we construe all genuine\n disputes of material fact in favor of Corpay, all its fee-billing prac-\n tices qualify as “unfair” under the FTC Act.\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 50 of 76\n\n\n\n\n 50 Opinion of the Court 23-12539\n\n We ﬁrst address Corpay’s challenge to the grant of summary\n for the seven unauthorized fees. Then, we turn to the late fees.\n 1. The Unauthorized, Unexpected Fees\n Corpay argues that the district court erred in granting sum-\n mary judgment on Count V as to the seven unauthorized fees. In\n support, it invokes three reasons: the court allegedly (1) applied the\n wrong legal standard, (2) overlooked genuine disputes of material\n fact, and (3) took no account of the Express Informed Consent Pro-\n ject. We ﬁnd no merit to any of these arguments.\n i. Corpay advances the wrong legal standard.\n First, we address the proper legal standard. Quoting our de-\n cision in LabMD, Inc. v. FTC, 894 F.3d 1221, 1231 (11th Cir. 2018),\n Corpay argues that the FTC “must ﬁnd the standards of unfairness\n it enforces in ‘clear and well-established’ policies that are expressed\n in the Constitution, statutes, or the common law.” The district\n court did not apply that limitation, and Corpay argues it found the\n company’s “past practices unfair under Section 5 [only] because the\n fees were ‘unexpected.’” Putting aside this oversimpliﬁcation of\n the district court’s reasoning, Corpay’s argument is not persuasive\n for four reasons.\n First, assuming without deciding that the district court erred\n by not applying the standard Corpay says LabMD requires, Corpay\n invited any error. We have explained that “invited error” occurs\n “when a party induces or invites the district court into making an\n error.” United States v. Maradiaga, 987 F.3d 1315, 1322 (11th Cir.\n 2021) (citation and quotation marks omitted). Here, in their brief\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 51 of 76\n\n\n\n\n 23-12539 Opinion of the Court 51\n\n opposing the FTC’s summary-judgment motion, Corpay and\n Clarke argued as to the governing standard, “To prove unfairness,\n the FTC must show that the practice ‘results in substantial con-\n sumer injury that is not reasonably avoidable and is not outweighed\n by any countervailing beneﬁts to consumers.’” That’s it. Nothing\n else. And the standard Corpay invoked in its opposition brief was\n precisely the one the district court applied. So Corpay invited any\n error the district court may have committed by not applying what\n Corpay now says is the standard. “Where a party invites error, the\n Court is precluded from reviewing that error on appeal.” Id. (cita-\n tion and quotation marks omitted).\n Second, even if Corpay could get by its invited error—it\n can’t—Corpay is wrong that the quoted language from LabMD\n controls the standard. To be sure, in LabMd, we said that practices\n the FTC targets must be “unfair under a well-established legal\n standard, whether grounded in statute, the common law, or the\n Constitution.” See 894 F.3d at 1229 n.24. But that was dictum, and\n as we explain in our third point, it was also incorrect.\n In LabMD, the FTC ordered LabMD “to install a data-secu-\n rity program that comported with the FTC’s standard of reasona-\n bleness.” Id. at 1227. LabMD challenged that order on the basis\n that the order did not direct it to “cease committing an unfair ‘act\n or practice’ within the meaning of Section 5(a).” Id. But rather\n than considering whether the FTC’s position that “LabMD’s negli-\n gent failure to design and maintain a reasonable data-security pro-\n gram invaded consumers’ right of privacy and thus constituted an\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 52 of 76\n\n\n\n\n 52 Opinion of the Court 23-12539\n\n unfair act or practice,” we “assume[d] arguendo” that it did. Id. at\n 1231. Then we said the order was unenforceable, anyway, because\n the FTC’s order’s prohibitions weren’t specific enough. See id. at\n 1237. Because we didn’t have to decide—and we never in fact de-\n termined—whether LabMD’s practices were “unfair” to resolve\n LabMD’s petition, the quoted statement from LabMD was dictum.\n United States v. Caraballo-Martinez, 866 F.3d 1233, 1244 (11th Cir.\n 2017) (“[D]icta is defined as those portions of an opinion that are\n not necessary to deciding the case then before us.”) (citation and\n quotation marks omitted). “And dicta is not binding on anyone for\n any purpose.” Edwards v. Prime, Inc., 602 F.3d 1276, 1298 (11th Cir.\n 2010).\n But third, Corpay (and LabMD) gets the proper standard for\n evaluating “unfair” practices wrong. In construing a statute, we\n always start (and often end) with the text. Heyman v. Cooper, 31\n F.4th 1315, 1318 (11th Cir. 2022). Under section 45(n), a practice\n cannot be “unfair unless the act or practice causes or is likely to\n cause substantial injury to consumers which is not reasonably\n avoidable by consumers themselves and not outweighed by coun-\n tervailing benefits to consumers or to competition.” 15 U.S.C. §\n 45(n) (emphasis added). As “unless” conveys, the three factors that\n follow it are mandatory for a finding that a practice is “unfair.” See,\n MERRIAM-WEBSTER, “UNLESS,” (last visited Oct. 13, 2025),\n https://perma.cc/LMR9-2FST (defining “unless” to be a conjunc-\n tion signaling “except on the condition that . . . .”).\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 53 of 76\n\n\n\n\n 23-12539 Opinion of the Court 53\n\n By contrast, Section 45(n) continues, stating that “[i]n deter-\n mining whether an act or practice is unfair, the Commission may\n consider established public policies as evidence to be considered with\n all other evidence. . . .” 15 U.S.C. § 45(n) (emphasis added). As the\n permissive “may” indicates, the FTC has discretion to consider\n “public policies” when deciding a practice is “unfair.” United States\n v. Rodgers, 461 U.S. 677, 706 (1983) (“The word ‘may,’ when used\n in a statute, usually implies some degree of discretion.”). But if it\n does so, the FTC must balance those “public policies” with other\n evidence that might contraindicate them. See 15 U.S.C. § 45(n).\n The statute goes so far as to mandate that “[s]uch public policy con-\n siderations . . . not serve as a primary basis for” determining an act\n “unfair.” Id. Put simply, the statutory text unambiguously does not\n require the FTC to make a showing that well-established public pol-\n icies deem an act “unfair.”\n But fourth, even if we were to adopt LabMD’s “well-estab-\n lished policies” dicta—as should be clear by now, we don’t—the\n FTC would still be entitled to summary judgment as to the “unex-\n pected” fees. The FTC oﬀers several “well-established” common-\n law policies that establish Corpay’s conduct as unfair. For starters,\n we have held “[c]aveat emptor [“buyer beware”] is not the law in this\n circuit.” FTC v. IAB Mktg. Assocs. LP, 746 F.3d 1228, 1233 (11th Cir.\n 2014). And the FTC has oﬀered a “mountain of evidence,” as the\n district court described it, that the company didn’t clearly inform\n customers of these fees before and after the sales process and didn’t\n clearly disclose that these fees were optional upon automatic en-\n rollment. So Corpay misrepresented its product to customers, and\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 54 of 76\n\n\n\n\n 54 Opinion of the Court 23-12539\n\n under the law of this circuit, customers are not on the hook for\n these misrepresentations.\n The FTC also points out that the common law in many\n states prohibits “procedurally unconscionable” contracts. In Geor-\n gia, for example, “some factors courts have considered in determin-\n ing whether a contract is procedurally unconscionable include[] the\n age, education, intelligence, business acumen and experience of\n the parties, their relative bargaining power, the conspicuousness\n and comprehensibility of the contract language, the oppressiveness\n of the terms, and the presence or absence of a meaningful choice.”\n NEC Tech., Inc. v. Nelson, 478 S.E.2d 769, 771–72 (Ga. 1996).\n The FTC presented evidence that Corpay has not genuinely\n disputed that the company purposely obfuscated its oppressive\n terms. For instance, Corpay made its Terms and Conditions dense,\n confusing, and diﬃcult to access for several years; did not clearly\n disclose the optional nature of certain fees; and made it diﬃcult to\n discover which fees it charged with vague language on “Fleet Man-\n agement Reports.” Plus, Corpay had uneven bargaining power\n with its relatively unsophisticated customer base, and Corpay used\n that power to set up a system to charge them fees without their\n knowledge.\n Plus, even under the governing contract-law principle\n Corpay identiﬁes, “inquiry notice,” Corpay’s fee practices fail. Un-\n der “inquiry notice,” if a party lacks “actual notice” of a contract’s\n terms, whether the terms bind them “often turns on whether the\n contract terms were presented to the oﬀeree in a clear and\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 55 of 76\n\n\n\n\n 23-12539 Opinion of the Court 55\n\n conspicuous way.” Starke v. SquareTrade, Inc., 913 F.3d 279, 289 (2d\n Cir. 2019). A contract must be a “manifestation of mutual assent.”\n Id. But Corpay doesn’t oﬀer evidence to genuinely dispute that be-\n fore its Express Informed Consent project, it didn’t oﬀer its fee\n terms in a “clear and conspicuous way.”\n Indeed, it’s undisputed that before this project, three fees\n were not even in the Terms and Conditions. And the company\n made the Terms and Conditions diﬃcult to read, which required it\n provide a reader-friendly version for its own employees. Any testi-\n mony to the contrary from Corpay’s executives is “blatantly con-\n tradicted by the record,” Scott, 550 U.S. at 380, so it doesn’t create a\n genuine dispute of material fact.\n Even after Corpay’s Express Informed Consent Project,\n Corpay didn’t give its customers inquiry notice for many fees. In\n this respect, the new Terms and Conditions weren’t clear as to\n some of the fees. For example, though they described Accelerator\n Rewards, Clean Advantage, and Fraud Protector as “program fees,”\n they didn’t clearly disclose them as optional. And by October 2020,\n according to Corpay’s own expert, ten months after the FTC’s com-\n plaint, 18.8% of customers still had not expressly consented to the\n new Terms and Conditions.\n In sum, Corpay’s LabMD argument fails because (1) Corpay\n invited any error, (2) the LabMD standard is dictum, (3) the LabMD\n standard violates the plain text of the governing statute, and (4)\n even if the LabMD standard applied, the FTC satisﬁed it.\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 56 of 76\n\n\n\n\n 56 Opinion of the Court 23-12539\n\n ii. Corpay doesn’t present a genuine dispute over whether it un-\n fairly hid fees.\n Corpay also argues that even under the standard the district\n court applied, the district court erred in granting the FTC sum-\n mary judgment. In Corpay’s view, the district court resolved gen-\n uine disputes of material fact to decide that customers were (1) sub-\n stantially injured in a manner that (2) wasn’t reasonably avoidable.\n We disagree.\n We begin by recognizing Corpay doesn’t dispute that it\n charged customers the relevant fees. Instead, Corpay asserts that a\n genuine dispute exists over whether it disclosed the fees or the fees\n were instead “unexpected.”\n Corpay’s case lacks the gas to scale the FTC’s “mountain of\n evidence.” Internal documents revealed that for several of the fees,\n Corpay automatically enrolled customers without their\n knowledge. And internal emails and customer complaints re-\n ﬂected that Corpay didn’t tell customers of these fees during the\n sales process. Plus, the Terms and Conditions were dense, vague,\n and largely inaccessible, available only by mail for at least three\n years. Corpay also hid the fees on invoices and failed to detail them\n on billing reports. When the FTC conducted a telephonic survey,\n it learned that only 7.02% of customers were informed of fees.\n And in eight internal surveys from 2016–2020, Corpay itself iden-\n tiﬁed its fee practices confused and surprised its customers.\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 57 of 76\n\n\n\n\n 23-12539 Opinion of the Court 57\n\n To top it oﬀ, internal documents showed that Corpay inten-\n tionally didn’t inform customers and made it diﬃcult for them to\n learn about fees.\n In response, Corpay fails to oﬀer evidence that creates a gen-\n uine dispute of material fact over whether it charged undisclosed\n fees. Corpay mainly cites its executives’ testimony that Corpay dis-\n closed its fees with its Terms and Conditions and trained its sales\n representatives to discuss fees. But either the record “blatantly con-\n tradict[s]” that testimony, Scott, 550 U.S. at 380, or that testimony\n doesn’t conﬂict with the FTC’s evidence.\n Corpay next points to its experts’ assertions that the FTC’s\n telephonic survey lacks methodological reliability. But even if we\n disregard the survey, the record unambiguously shows that Corpay\n notiﬁed only very few of its customers of changes. Other evidence,\n as we’ve discussed, also overwhelmingly supports the FTC’s claims\n that Corpay didn’t disclose its fees or obtain its customers’ consent\n before imposing its fees.\n Corpay tries to get out from under the evidence by relying\n on expert testimony that customers’ fuel-purchase rates didn’t\n change after Corpay assessed them fees. But that doesn’t dispute\n that the company didn’t disclose the fees in the ﬁrst place. Nor does\n Corpay fare any better with its argument that it used a mailer to\n notify customers of the three fees that were not in the Terms and\n Conditions. As the district court noted, those mailers didn’t unam-\n biguously explain that the fees were optional. They also didn’t seek\n further authorization from the customers.\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 58 of 76\n\n\n\n\n 58 Opinion of the Court 23-12539\n\n To conclude, Corpay failed to identify evidence that creates\n a genuine dispute that it charged undisclosed fees.\n iii. Evidence of the “Express Informed Consent Project” does not\n preclude summary judgment for the FTC.\n Corpay also asserts the district court erred by not consider-\n ing its “Express Informed Consent Project” when it granted sum-\n mary judgment. But this evidence does not warrant vacating the\n judgment. As we’ve explained, by October 2020, ten months after\n the FTC’s complaint, 18.8% of customers still had not expressly\n consented to the new Terms and Conditions. And Corpay hasn’t\n established that it even sent these new Terms and Conditions to the\n customers it had before the FTC ﬁled its complaint. So on this rec-\n ord, the district court did not err in concluding that no genuine dis-\n pute existed over whether Corpay was charging existing customers\n fees without their express, informed consent; Corpay was.\n As a result, the district court did not err in granting sum-\n mary judgment to the FTC on Counts IV and V of its complaint as\n those claims relate to Corpay’s add-on fee-billing practices.\n 2. Erroneous Late Fees\n The district court also properly granted summary judgment\n to the FTC for Corpay’s late-fee practices. Corpay does not contest\n that before 2018 it unfairly assessed late fees. Instead, Corpay\n urges, the FTC Act requires the Commission to show that, at the\n time the FTC ﬁled its complaint, Corpay “[was] violating, or [was]\n about to violate” the FTC Act. 15 U.S.C. § 53(b). This burden, the\n company asserts, demands a showing that Corpay’s “existing or\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 59 of 76\n\n\n\n\n 23-12539 Opinion of the Court 59\n\n impending conduct” was unlawful at time of complaint. See FTC v.\n Shire ViroPharma, Inc., 917 F.3d 147, 156 (3d Cir. 2019). Because the\n district court relied primarily on evidence from 2017 and 2018, and\n Corpay changed its online payment system in 2018, Corpay con-\n tends the FTC’s evidence was too “stale” to support summary judg-\n ment on a complaint it ﬁled in 2019.\n Our sister circuits have split on whether the FTC must show\n that the company’s “existing or impending” practices violate the\n FTC Act at the time of the complaint. Compare Shire ViroPharma,\n 917 F.3d at 156 (requiring the FTC to plead “existing or impending\n conduct”) with FTC v. Evans Products Co., 775 F.2d 1084, 1087 (9th\n Cir. 1985) (allowing an action where the conduct was only “likely\n to recur”); FTC v. Accusearch Inc., 570 F.3d 1187, 1191 (10th Cir. 2009)\n (same). But we need not weigh in on this split. Even assuming the\n FTC had to show that Corpay’s “existing or impending” practices\n violated the FTC Act when the FTC ﬁled its complaint, no genuine\n dispute exists over whether the FTC has met that burden.\n To start, Corpay updated only its online payment system in\n 2018. But the district court granted summary judgment because\n of late fees Corpay assessed on mail and phone payments as well.\n And Corpay doesn’t argue that those forms of payment changed in\n 2018. So right oﬀ the bat, summary judgment remains appropriate\n at least with respect to late fees Corpay assessed on those pay-\n ments.\n And as for the online payments, much of the genuinely un-\n disputed evidence from 2017 and 2018 remains probative for the\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 60 of 76\n\n\n\n\n 60 Opinion of the Court 23-12539\n\n claim that Corpay was still engaging in unfair practices in 2019.\n Several internal surveys and customer complaints revealed wide-\n spread problems with improper late fees. Not only that, but the\n FTC’s telephonic survey, which it conducted in 2020—two years af-\n ter Corpay adopted its new online-payment system—found 37.90%\n of Corpay customers had been improperly assessed late fees. Faced\n with this evidence, Corpay presents no evidence that customer\n complaints for late fees stopped in 2019.\n Finally, Corpay admits to continuing certain late-fee prac-\n tices in 2019 from 2017 and 2018, when even it does not dispute it\n violated the FTC Act. It still marks payments it receives after 4 p.m.\n ET as late. Corpay also doesn’t contest that it still makes payments\n due on weekends and marks them late if it receives them after 4\n p.m. on Fridays. The district court relied on these facts when it\n entered summary judgment against Corpay, and these facts didn’t\n change from 2018 to 2019.\n So though Corpay changed its online-payment system in\n 2018, it has not created a genuine dispute that when the FTC ﬁled\n its complaint, Corpay continued to wrongly charge customers late\n fees.\n C. The FTC is entitled to summary judgment as to the personal\n liability of Clarke on all but Count II.\n\n Now that we’ve determined that the FTC is entitled to sum-\n mary judgment on all ﬁve counts against Corpay, we move to the\n FTC’s claims against Ronald Clarke personally.\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 61 of 76\n\n\n\n\n 23-12539 Opinion of the Court 61\n\n The parties don’t contest the proper legal standard for when\n an individual is liable for a corporation’s violation of the FTC Act.\n Under our precedents, “the FTC must show that the individual had\n ‘some knowledge of the practices’ and that the individual either\n ‘participated directly in the practice or acts or had the authority to\n control them.’” On Point, 17 F.4th at 1083. Corpay concedes Clarke\n had “authority to control” its conduct. So we assess whether the\n FTC proved without genuine dispute that Clarke had “some\n knowledge” of Corpay’s illegal conduct.\n Our precedents have yet to deﬁne the meaning of “some\n knowledge.” But as our sister circuits have recognized, “showing\n that the individual had actual knowledge of the deceptive conduct,\n was recklessly indiﬀerent to its deceptiveness, or had an awareness\n of a high probability of deceptiveness and intentionally avoided\n learning of the truth,” satisﬁes that standard. FTC v. Ross, 743 F.3d\n 886, 892 (4th Cir. 2014); accord FTC v. World Media Brokers, 415 F.3d\n 758, 764 (7th Cir. 2005).\n As the FTC points out, this is not a “high bar.” For example,\n we have found the CEO of a scam operation had “some\n knowledge” even though he claimed he was “only involved in high-\n level decision making and had no knowledge of or control over the\n contents of [the] websites.” On Point, 17 F.4th at 1083. There, a set\n of slides the CEO created describing the company’s services and\n business model and his general awareness of the company’s ﬁ-\n nances and operations satisﬁed the requirement. Id. at 1083-84. In\n another case, we found an executive had some knowledge of its\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 62 of 76\n\n\n\n\n 62 Opinion of the Court 23-12539\n\n company’s misrepresentations because he had received a report\n from a compliance oﬃcer that included that information. See FTC\n v. IAB Mktg. Associates, LP, 746 F.3d 1228, 1233 (11th Cir. 2014).\n The FTC easily clears the “some knowledge” hurdle. The\n evidence of Clarke’s knowledge of the conduct underlying four of\n the ﬁve counts is overwhelming and indisputable.\n We begin with Count I, the “per-gallon” discount ads. As\n the district court pointed out, Clarke’s subordinates informed him\n that “customers often paid more than the pump price of fuel de-\n spite per-gallon savings promised.” And they let him know that\n “[s]mall and medium-sized business customers received ‘mini-\n mal/no’ rebates for at least two years.” Clarke also received a Pow-\n erPoint describing customer complaints about discounts. But de-\n spite this information, in a 2017 call with company shareholders,\n he boasted about the company’s discounts and rebates.\n As for the “no transaction” fee ads that underlie Count III,\n Clarke approved the Minimum Program Administration Fee. And\n at the shareholder meeting, he discussed the revenue from both the\n Minimum Program Administration Fee and “high-risk credit fees.” 9\n True, the FTC and the district court don’t acknowledge that he dis-\n cussed speciﬁcally the “no transaction fee” ads. But the record is\n clear that Clarke knew of the underlying fees the Corpay ads ad-\n vertised. Plus, Clarke knew customers had complained that\n\n\n 9 Clarke even referred to “High Risk Pricing” as “high-risk credit fees,” despite\n the company’s insistence that “High Risk Pricing” is not a “fee.”\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 63 of 76\n\n\n\n\n 23-12539 Opinion of the Court 63\n\n Corpay wrongfully assessed them these fees. That information\n gave him “some knowledge” that Corpay was misrepresenting the\n existence of these fees.\n The evidence is most damning against Clarke on Counts IV\n and V of the complaint, relating to the company’s unfair-billing\n practices. As the district court highlighted, subordinates informed\n Clarke that Corpay’s “practices with regard to disclosing fees in its\n [Terms and Conditions] are vague, while its methods of disclosing\n fees on invoices and notifying customers of new or increased fees\n are nearly nonexistent.” And Corpay’s shareholders and corporate\n partners contacted Clarke to inform him of customer complaints\n about the company’s fee practices. Not only that, but Clarke re-\n ceived and read public reports detailing Corpay’s unfair-fee prac-\n tices. Faced with this information, Clarke chose to dismiss it all as\n “fake news.” That betrays at minimum a reckless indiﬀerence to\n the truth.\n Clarke also speciﬁcally addressed reports of unfair late fees\n at the 2017 shareholding meeting. But he responded by asking his\n subordinates for “opportunities to get more late fee revenue . . . .”\n So Clarke had “some knowledge” of Corpay’s “unauthorized” fees\n and its erroneous late fees.\n Given the low bar for establishing “some knowledge,” and\n all this evidence, no reasonable jury could ﬁnd for Clarke on\n Counts I, III, IV, and V of the FTC’s complaint.\n Still, Corpay seeks to absolve Clarke’s knowledge by arguing\n he sought information in “good faith” to bring the company into\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 64 of 76\n\n\n\n\n 64 Opinion of the Court 23-12539\n\n compliance. But even assuming that’s so, Clarke, with control of\n Corpay’s operation, did not cease its unlawful practices. We have\n never recognized a “good faith” exception when the “some\n knowledge” requirement is met. A truly good-faith actor with “ac-\n tual control” and “some knowledge” would end the company’s un-\n lawful practices. And in any case, the record doesn’t support that\n Clarke was acting in “good faith.” As we’ve noted, he dismissed\n concerns with Corpay’s practices as “fake news” and asked his sub-\n ordinates to ﬁnd ways to extract more late fees.\n But the FTC has not met its burden on one count of its com-\n plaint against Clarke: Count II, concerning the “Fuel Only” ads.\n None of the evidence of Clarke’s communications that the FTC\n cites speak speciﬁcally to the “Fuel Only” ads. And at oral argu-\n ment, the FTC could not identify any evidence in the record show-\n ing Clarke had “some knowledge” of the “Fuel Only” ads. So we\n conclude the district court erred by granting the FTC summary\n judgment on this count. We therefore vacate the grant of sum-\n mary judgment to the FTC on Count II as to Clarke’s liability.\n Thus, the FTC is entitled to summary judgment as to the\n personal liability of Clarke on Counts I, III, IV, and V of its com-\n plaint, but not on Count II.\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 65 of 76\n\n\n\n\n 23-12539 Opinion of the Court 65\n\n D. The district court did not abuse its discretion fashioning the\n Express Informed Consent provisions of the permanent injunc-\n tion.\n\n But the grant of summary judgment against Corpay on all\n ﬁve counts remains. So we turn to the company’s challenge to the\n proper scope of the permanent injunction against it.\n We review for abuse of discretion both the decision to grant\n a permanent injunction and the scope of an injunction.10 Angel\n Flight of Ga., Inc. v. Angel Flight Am., Inc., 522 F.3d 1200, 1208 (11th\n Cir. 2008). “An abuse of discretion occurs when a district court\n commits a clear error of judgment, fails to follow the proper legal\n standard or process for making a determination, or relies on clearly\n erroneous findings of fact.” FTC v. Nat’l Urological Grp., Inc., 80\n F.4th 1236, 1241 (11th Cir. 2023) (quoting Yellow Pages Photos, Inc.\n v. Ziplocal, LP, 846 F.3d 1159, 1163 (11th Cir. 2017)).\n Corpay argues that the district court abused its discretion in\n fashioning the injunction’s Express Informed Consent provisions.\n In this respect, Corpay contends the district court exceeded its re-\n medial authority by “[o]rdering that [Corpay’s] fee disclosures be\n\n\n 10 Corpay asserts that “[t]he scope of the district court’s remedial authority\n under [15 U.S.C. § 53(b)] is a ‘purely legal question’ reviewed de novo.” But\n the case it cites for this proposition doesn’t support that proposition. Rather,\n it states only that whether the proper interpretation of the statutory term “per-\n manent injunction” includes the authority to order “monetary relief” is a\n “purely legal question.” See AMG Capital Mgmt., 593 U.S. at 74. As we explain\n above, under our precedents, we review the scope of a “permanent injunc-\n tion” for abuse of discretion.\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 66 of 76\n\n\n\n\n 66 Opinion of the Court 23-12539\n\n ‘unavoidable’”; “[f ]orbidding [Corpay] from continuing to make\n disclosures via hyperlinks”; and “[f ]orbidding [Corpay] from ob-\n taining assent to more than one charge through a single expression\n of consent.” Based on these claims, Corpay asks us to vacate the\n Express Informed Consent provisions in their entirety, or at a min-\n imum, to remand with an order to the district court to make the\n following modiﬁcations:\n The sentence “Material terms may not\n be disclosed behind a hyperlink or\n tooltip but can be disclosed in a\n dropdown icon or pop-up that requires\n consumers to provide assent immedi-\n ately after the disclosure of the material\n terms” should be deleted.\n The sentence “In any communication\n using an interactive electronic medium,\n such as the Internet or software, the dis-\n closure must be unavoidable” should be\n revised to state “In any communication\n using an interactive electronic medium,\n such as the Internet or software, the dis-\n closure must provide a reasonable op-\n portunity for the customer to review the\n information that is the subject of the\n disclosure.”\n In the deﬁnition of mechanisms that do\n not constitute “Express Informed Con-\n sent,” the following bullet point should\n be deleted: “Assent to more than one\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 67 of 76\n\n\n\n\n 23-12539 Opinion of the Court 67\n\n charge through a single expression of\n assent.”\n Because Corpay asserts that the district court exceeded its\n authority, we begin by summarizing the scope of the district\n court’s remedial authority under the FTC Act. We then address\n whether the district court properly granted permanent injunctive\n relief. And we conclude by considering whether the district court\n properly tailored its injunction to the wrong it was remedying. We\n are persuaded it did.\n 1. The Scope of Remedial Authority Under the FTC Act\n Section 13(b) of the FTC Act, 15 U.S.C. § 53(b) authorizes\n the Commission to seek and the district court to issue a permanent\n injunction “in proper cases . . . and after proper proof.” This pro-\n vision permits the district court to “exercise its inherent equitable\n power[,]” FTC v. Gem Merch. Corp., 87 F.3d 466, 468 (11th Cir. 1996),\n but relief must be “prospective, not retrospective.” See AMG Cap.\n Mgmt., 593 U.S. at 76.\n A court may certainly enjoin “ongoing” illegal conduct. See\n Reich v. Occupational Safety & Health Rev. Comm’n, 102 F.3d 1200,\n 1202 (11th Cir. 1997). But if “the defendant’s past conduct indicates\n that there is a reasonable likelihood of further violations in the fu-\n ture,” that may also warrant injunctive relief. SEC v. Caterinicchia,\n 613 F.2d 102, 105 (5th Cir. 1980) (quoting SEC v. Blatt, 583 F.2d 1325,\n 1334 (5th Cir. 1978)).\n In determining whether an injunction is appropriate, the dis-\n trict court must consider six factors: “the egregiousness of the\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 68 of 76\n\n\n\n\n 68 Opinion of the Court 23-12539\n\n defendant’s actions, the isolated or recurrent nature of the infrac-\n tion, the degree of scienter involved, the sincerity of the defend-\n ant’s assurances against future violations, the defendant’s recogni-\n tion of the wrongful nature of his conduct, and the likelihood that\n the defendant’s occupation will present opportunities for future vi-\n olations.” SEC v. Carriba Air, Inc., 681 F.2d 1318, 1322–23 (11th Cir.\n 1982) (quoting Blatt, 583 F.2d at 1334, n.29). We call these the “Car-\n riba Air factors.” Though a court should consider each Carriba Air\n factor, it need not make a ﬁnding on every one. U.S. Commodity\n Futures Trading Comm’n v. S. Tr. Metals, Inc., 894 F.3d 1313, 1328 (11th\n Cir. 2018).\n When injunctive relief is appropriate, the “injunction must\n be narrowly tailored to the proven legal violations and restrain no\n more conduct than reasonably necessary.” Fin. Info. Techs., LLC v.\n iControl Sys., USA, LLC, 21 F.4th 1267, 1280 (11th Cir. 2021); see also\n Cumulus Media, Inc. v. Clear Channel Commc’ns, 304 F.3d 1167, 1178\n (11th Cir. 2002) (an “injunction must be ‘narrowly tailored to ﬁt\n speciﬁc legal violations, because the district court should not im-\n pose unnecessary burdens on lawful activity[.]’”) (quoting Starter\n Corp. v. Converse, Inc., 170 F.3d 286, 299 (2d Cir. 1999)). Even so, “a\n court of equity is free to proscribe activities that, standing alone,\n would have been unassailable.” Id. at 1179; see also Planetary Motion\n v. Techsplosion, Inc., 261 F.3d 1188, 1204 (11th Cir. 2001). After all,\n those “caught violating the [FTC] Act . . . must expect some fencing\n in.” FTC v. Colgate-Palmolive Co., 380 U.S. 374, 395 (1965).\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 69 of 76\n\n\n\n\n 23-12539 Opinion of the Court 69\n\n 2. The district court did not err in determining a permanent\n injunction was appropriate.\n Corpay argues that it was not engaged in ongoing illegal\n conduct, and no likelihood of recurrent illegal conduct could sup-\n port the Express Informed Consent provisions. We disagree.\n To start, Corpay contends that the district court made no\n ﬁnding that any of its “post-overhaul” practices, after 2019, violated\n the law. But the district court did. It found “there is demonstrable\n record evidence—contrary to Defendants’ emphatic position—that\n [Corpay’s] unfair practices persist.”\n What’s more, the record supports the district court’s conclu-\n sion, so we can’t say the district court clearly erred. The court cited\n a study from 2020 that showed a majority of customers still felt\n misled by fees. It also noted Corpay did not provide evidence that\n “it does not automatically opt customers in to fees for ‘programs’\n they have not requested.” And indeed, at the later evidentiary hear-\n ing, Corpay revealed that it was still automatically charging its cus-\n tomers from before 2020 the oﬀending fees without additional no-\n tice. Plus, at the time of the hearing, Corpay was also still assessing\n the High Risk Fee for both new and old customers. At a minimum,\n these fees represent the ongoing eﬀects of Corpay’s unlawful con-\n duct.\n So next, Corpay observes that the district court said Corpay\n “has not provided any evidence that it has implemented an aﬃrm-\n ative disclosure process.” But as Corpay points out, its new Terms\n and Conditions and “Express Informed Consent Project” were in\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 70 of 76\n\n\n\n\n 70 Opinion of the Court 23-12539\n\n the record when the district court made this ﬁnding. Based on this\n fact, Corpay asserts that the district made a clearly erroneous ﬁnd-\n ing and did not consider its “post overhaul” practices when decid-\n ing whether an injunction was appropriate.\n We disagree that the district court clearly erred. Instead, we\n understand the district court not to have viewed these “over-\n hauled” Terms and Conditions as an “aﬃrmative disclosure.” And\n that’s not a clearly erroneous ﬁnding. After all, the new Terms and\n Conditions don’t even unambiguously convey that certain fees are\n optional.\n But beyond that, even if we agreed with Corpay that the dis-\n trict court clearly erred in ﬁnding that Corpay’s illegal conduct per-\n sists (we don’t), the court didn’t clearly err in ﬁnding a likelihood\n that the illegal conduct would recur. For each of the six Carriba Air\n factors, the court made ﬁndings that it supported with the record.\n All counseled in favor of granting a permanent injunction. We\n can’t say any of these ﬁndings or the court’s overall conclusion that\n Corpay was likely to reengage in illegal conduct was clearly erro-\n neous.\n Corpay also argues that its large investment in its recent le-\n gally compliant “overhaul” supports the conclusion that further\n court-ordered restrictions are unnecessary. But even if we assumed\n Corpay is currently fully compliant with the FTC Act, Corpay’s re-\n forms come in the face of the FTC’s litigation. And we must re-\n member that “reform timed to anticipate or blunt the force of a\n lawsuit oﬀer[s] insuﬃcient assurance that the practice sought to be\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 71 of 76\n\n\n\n\n 23-12539 Opinion of the Court 71\n\n enjoined will not be repeated.” NAACP v. City of Evergreen, 693 F.2d\n 1367, 1370 (11th Cir. 1982) (quoting James v. Stockham Valves & Fit-\n tings Co., 559 F.2d 310, 354–55 (5th Cir. 1977)). Even Corpay’s own\n internal slide described its reason for its “Express Informed Con-\n sent Project” as “[t]he FTC alleges that [Corpay’s] terms and con-\n ditions are insuﬃcient, and in particular fail to fully disclose certain\n fees. We disagree with the FTC’s allegations, but took the oppor-\n tunity to improve our terms and conditions.” The company’s be-\n havior oﬀers few assurances it won’t revert to unfair practices when\n the case ends.\n 3. The Express Informed Consent provisions were “neces-\n sary” to prevent Corpay’s unlawful conduct.\n Next, Corpay contends that the district court abused its dis-\n cretion by entering the injunction without ﬁnding that Corpay’s\n Express Informed Consent provisions were necessary to prevent un-\n lawful conduct. And, Corpay urges, the district court could not\n make that ﬁnding. Corpay is wrong on both counts.\n To start, the district court made suﬃcient ﬁndings to sup-\n port the Express Informed Consent provisions of the injunction.\n Rule 65(d)(1)(A) of the Federal Rules of Civil Procedure requires\n that “every order granting an injunction and every restraining or-\n der must . . . state the reasons why it issued.” The district court\n complied with that requirement. Its order ﬁrst explained that the\n FTC had alleged Corpay “engaged in deceptive and unfair acts or\n practices,” for which it sought “permanent injunctive relief.” Then,\n the order established that it was “proper in this case to issue a\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 72 of 76\n\n\n\n\n 72 Opinion of the Court 23-12539\n\n permanent injunction containing the provisions set forth” in the\n order. Put simply, the district court found it “proper” to hold\n Corpay to the Express Informed Consent provisions to remedy the\n company’s deceptive and unfair . . . practices.”\n Rule 65(d)(1)(A) does not require more. We have never held\n that a district court must go into extensive detail when “stat[ing]\n the reasons” for its injunction. Nor could we. To be sure, Rule\n 65(d)(B) and (C) direct that the “terms” of the injunction must be\n “state[d] . . . speciﬁcally” and the “acts restrained or required” be\n “describe[d] in reasonable detail” respectively. But Rule 65(d)(1)(A)\n includes no similar requirement for speciﬁcity or detail.\n Instead, as some of our sister circuits have recognized, to sat-\n isfy Rule 65(d)(1)(A), a court need only state the “reasons” with\n enough speciﬁcity that we can conduct “meaningful appellate re-\n view.” See In re Jimmy John’s Overtime Litig., 877 F.3d 756, 766 (7th\n Cir. 2017); Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Mun. of San\n Juan, 773 F.3d 1, 10 (1st Cir. 2014); Patsy’s Italian Rest., Inc. v. Banas,\n 658 F.3d 254, 274 (2d Cir. 2011). So we adopt a “a commonsense\n construction, not a hypertechnical one,” of Rule 65(d)(1)(A).\n Watchtower Bible, 773 F.3d at 10. And under that construction, the\n district court need only provide enough detail in its reasons to al-\n low us to do our job. See id.\n After all, the interests of preserving judicial resources coun-\n sel against remanding a case for additional ﬁndings when “we\n doubt that such action, in the circumstances present here, would\n add anything essential to the determination of the merits.” See\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 73 of 76\n\n\n\n\n 23-12539 Opinion of the Court 73\n\n Withrow v. Larkin, 421 U.S. 35, 45 (1975). So “[w]hile a more elabo-\n rate statement of the court’s rationale [may be] helpful . . . , it is\n enough [if ] the court ma[kes] the essence of its reasoning plain be-\n fore ordering injunctive relief.” See Watchtower Bible, 773 F.3d at 10.\n Here, “[t]he district court’s orders, read in conjunction with\n the hearing transcripts, chronicle the court’s laudable eﬀort,” ably\n explain why the court determined the relief it granted was neces-\n sary to remedy Corpay’s illegal conduct. Cf. id. at 9. The district\n court concluded that the Express Informed Consent provisions\n were “proper” after it held an extensive hearing, the transcripts of\n which appear in the record. And as we’ve already discussed, the\n court held this hearing after it had ﬁrst detailed ﬁndings supporting\n its conclusion in its summary-judgment order that the record war-\n ranted a permanent injunction. See Part I.B.1, supra. So we have a\n well-grounded understanding of the reasons for the district court’s\n decision. This is enough to satisfy Rule 65(d)(1)(A).\n We have no trouble understanding why the district court\n fashioned the Express Informed Consent provisions of the injunc-\n tion. To recap, Corpay argues that the Express Informed Consent\n provisions prohibiting fee disclosures from being behind a hyper-\n link, requiring disclosures to be “unavoidable,” and requiring a sep-\n arate assent for each charged fee aren’t “necessary” to stop or pre-\n vent Corpay from engaging again in illegal conduct. But based on\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 74 of 76\n\n\n\n\n 74 Opinion of the Court 23-12539\n\n this record, we can’t say the district court made a clear error in\n judgment in crafting these requirements for two main reasons.11\n First, the district court could conclude that express consent,\n beyond the typical legal minimum, is necessary to remedy the rem-\n nants of unfair billing practices that persist even after Corpay’s\n “overhaul.” Pre-2020 customers, who continue to make up 65 to\n 70% of Corpay’s clients, are still automatically enrolled in fees they\n did not originally consent to. And the current Terms and Condi-\n tions don’t unambiguously disclose these fees are optional. Plus,\n while 96% of these customers clicked to “agree” to the Terms and\n Conditions, the evidence shows that as few as 4% actually clicked\n to read them. So the district court’s decision to require Corpay to\n disclose its fees more prominently was not clear error, given the\n need to cure the original lack of consent by longstanding custom-\n ers. All three of the provisions Corpay challenges make it easier\n for customers to provide their informed consent and to know what\n Corpay is charging them for.\n Second, the district court could reasonably conclude given\n Corpay’s rampant history of illegal acts, that the company needed\n constraints beyond the legal minimum to ensure future compli-\n ance. The district court found that “unfair fee practices were in-\n grained in the fabric of the company for years.” It also found that\n\n\n\n\n 11 We may affirm the grant of an injunction on any ground supported by the\n record. See Gonzalez v. Governor of Ga., 978 F.3d 1266, 1268 n.2 (11th Cir. 2020).\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 75 of 76\n\n\n\n\n 23-12539 Opinion of the Court 75\n\n “the conduct was intentional—and that it came straight from the\n top.”\n Against this backdrop, the court did not clearly err when it\n determined it needed to “fence in” Corpay. Colgate-Palmolive Co.,\n 380 U.S. at 395. Requiring Corpay not to hide disclosures behind a\n hyperlink prevents Corpay from making that link harder to ﬁnd.\n After all, Corpay didn’t even have online Terms and Conditions un-\n til 2017. Similarly, requiring disclosures to be “unavoidable” pre-\n vents Corpay from sticking its customers with new fees without\n their knowledge. And given Corpay’s history with dense, small-\n print Terms and Conditions, it was also not unreasonable for the\n court to have concluded it “necessary” to require separate assent\n for each fee. This requirement ensures the company doesn’t inten-\n tionally bury fee disclosures in a mountain of confusing text with\n only one required consent. In sum, the record here warrants this\n relief.\n Corpay argues that the FTC oﬀers no evidence that these\n reforms will cause more consumers to read fee disclosures. But\n that argument misses the point. The goal is to make sure that cus-\n tomers who want to know about and understand the fees Corpay\n charges can easily do so, and Corpay can’t deceive them. By requir-\n ing Corpay to make disclosures “unavoidable,” the court simply re-\n quires Corpay to treat its customers fairly. Given the history here,\n we can’t say the district made a clear error in judgment in so ruling.\n In all, the district court didn’t abuse its discretion fashioning\n the Express Informed Consent provisions of its injunction.\n\fUSCA11 Case: 23-12539 Document: 70-1 Date Filed: 01/06/2026 Page: 76 of 76\n\n\n\n\n 76 Opinion of the Court 23-12539\n\n III. CONCLUSION\n For these reasons, we aﬃrm the grant of summary judg-\n ment to the FTC with respect to all counts against Corpay, Inc., and\n the grant of a permanent injunction with respect to Corpay. We\n also aﬃrm the grant of summary judgment against Ronald Clarke\n with respect to all but Count II. But we vacate the grant of sum-\n mary judgment to the FTC on Count II of its complaint against\n Clarke.\n AFFIRMED IN PART, VACATED IN PART, AND\n REMANDED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11236396/", "author_raw": "ROSENBAUM, Circuit Judge:"}]}	ROSENBAUM	LAGOA	WILSON	1		{"ROSENBAUM": ", Circuit", "LAGOA": ", Circuit", "WILSON": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10769811/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,770,326	A. B. v. David Jacobs Barrow	2026-01-07	24-13138	U.S. Court of Appeals for the Eleventh Circuit	{"judges": "Before WILLIAM PRYOR, Chief Judge, and LAGOA and KIDD, Circuit Judges.", "parties": "", "opinions": [{"author": "LAGOA, Circuit Judge:", "type": "010combined", "text": "USCA11 Case: 24-13138 Document: 39-1 Date Filed: 01/07/2026 Page: 1 of 16\n\n\n\n\n FOR PUBLICATION\n\n\n In the\n United States Court of Appeals\n For the Eleventh Circuit\n ____________________\n No. 24-13138\n ____________________\n\n A.B.,\n a minor, by and through her next friend and parent, J.B.,\n\n Plaintiﬀ-Appellant,\n versus\n\n DAVID JACOBS BARROW,\n NATIONWIDE MUTUAL INSURANCE COMPANY,\n\n Defendants-Appellees.\n ____________________\n Appeal from the United States District Court\n for the Northern District of Alabama\n D.C. Docket No. 4:22-cv-01314-CLM\n ____________________\n\n Before WILLIAM PRYOR, Chief Judge, and LAGOA and KIDD, Circuit\n Judges.\n\fUSCA11 Case: 24-13138 Document: 39-1 Date Filed: 01/07/2026 Page: 2 of 16\n\n\n\n\n 2 Opinion of the Court 24-13138\n\n LAGOA, Circuit Judge:\n This appeal turns on whether notice given nearly five years\n after an occurrence can satisfy an insurance policy’s requirement\n that written notice be given “as soon as reasonably possible.” The\n underlying conduct that could have triggered coverage happened\n in 2013. But Appellee, Nationwide Mutual Insurance Company,\n did not receive notice until November 2018. The district court\n ruled that this 58-month delay was untimely as a matter of law and\n entered summary judgment for Nationwide. After careful review\n of the record, and with the benefit of oral argument, we affirm the\n entry of summary judgment in favor of Nationwide.\n I. FACTUAL BACKGROUND\n The facts giving rise to this appeal stem from a series of\n prior proceedings, one of which came before this Court. See Na-\n tionwide Mut. Ins. Co. v. Barrow, 29 F.4th 1299 (11th Cir. 2022). Ap-\n pellant, A.B., is a “young woman who was sexually exploited by her\n mother and David Barrow when she was 10 years old.” Id. at 1300.\n In February 2018, A.B. filed a lawsuit against Barrow in Alabama,\n alleging that Barrow invaded her privacy. The state court held a\n bench trial on her privacy claims in April 2022 and ruled for A.B. It\n awarded $4 million to A.B. in compensatory damages and $6 mil-\n lion to A.B. in punitive damages, for a total verdict of $10 million.\n While her invasion of privacy lawsuit was underway, A.B.\n filed a separate lawsuit against Barrow and his wife in February\n 2018 under the Alabama Fraudulent Transfer Act. During discov-\n ery in that action, A.B.’s attorney requested that Barrow and his\n\fUSCA11 Case: 24-13138 Document: 39-1 Date Filed: 01/07/2026 Page: 3 of 16\n\n\n\n\n 24-13138 Opinion of the Court 3\n\n wife provide “[a] copy of all insurance policies in force and effect”\n at the time of Barrow’s offending conduct. Counsel for Barrow’s\n wife responded on September 25, 2018, stating that he thought Bar-\n row was insured by Nationwide. Following the lead from that tip,\n A.B.’s attorney served a subpoena on Nationwide on November 9,\n 2018, requesting production of its policies. Nationwide complied\n with the subpoena, and A.B.’s attorney received a copy of the re-\n quested policies in January 2019.\n One of Barrow’s Nationwide policies provided him personal\n umbrella liability coverage for occurrences involving the “invasion\n of rights of privacy.” To qualify for coverage, the policy required\n that “[y]ou or someone on your behalf must[,] as soon as reasona-\n bly possible, give us, our agent[,] or sales representative written no-\n tice of an occurrence to which this policy may apply.” The policy\n also required Barrow or someone on his behalf to “promptly give\n us all legal papers or reports relating to the occurrence when a\n claim or suit is filed against an insured.”\n It is undisputed that Nationwide received at least construc-\n tive notice of Barrow’s 2013 conduct, as well as the invasion-of-pri-\n vacy lawsuit filed against him, when A.B.’s attorney served the sub-\n poena on Nationwide in November 2018. In July 2019, Nationwide\n retained counsel to defend Barrow as its insured in state court, who\n continued to represent Barrow through the 2022 verdict entered\n against him. As part of that representation, counsel deposed A.B.,\n defended Barrow’s deposition, and represented Barrow at trial.\n\fUSCA11 Case: 24-13138 Document: 39-1 Date Filed: 01/07/2026 Page: 4 of 16\n\n\n\n\n 4 Opinion of the Court 24-13138\n\n In July 2022, following the state court’s entry of judgment\n on A.B.’s $10 million verdict and Barrow’s failure to pay the judg-\n ment, A.B. sued Nationwide and Barrow in state court under Ala-\n bama’s Direct Action Statute. That statute permits prevailing plain-\n tiffs like A.B. to “proceed against the defendant and [his] insurer to\n reach and apply [any available] insurance money to the satisfaction\n of the judgment.” ALA. CODE § 27-23-2 (1975). Consistent with\n section 27-23-2, A.B. sought to reach and apply up to $10 million in\n coverage under Barrow’s umbrella liability policy issued by Nation-\n wide.\n Nationwide removed the coverage action to federal court,\n and the district court granted summary judgment for Nationwide\n on the ground that “neither Barrow nor A.B. notified Nationwide\n of its potential duty to indemnify in the time required by the um-\n brella policy.” A.B. by & through J.B. v. Barrow, No. 4:22-CV-1314-\n CLM, 2024 WL 3995312, at 1 (N.D. Ala. Aug. 29, 2024). After not-\n ing the 58 months between Barrow’s conduct and Nationwide’s re-\n ceipt of A.B.’s subpoena and observing that, under Alabama law,\n delays of “four, five, six, and eight months require a reasonable ex-\n cuse,” id. at 6, the district court determined that Barrow “offered\n no excuse or explanation for his failure to notify Nationwide.” Id.\n at *7. It further rejected A.B.’s argument that “her ignorance of\n the policy excuse[d] the delay,” concluding that Alabama law\n “ma[de] clear that the excuse is tied to the policy holder.” Id. Be-\n cause A.B. “offer[ed] no excuse for Barrow’s failure to notify,” the\n district court entered judgment for Nationwide. Id. (emphasis\n omitted). A.B. timely appealed.\n\fUSCA11 Case: 24-13138 Document: 39-1 Date Filed: 01/07/2026 Page: 5 of 16\n\n\n\n\n 24-13138 Opinion of the Court 5\n\n\n\n II. STANDARD OF REVIEW\n We review the grant of summary judgment de novo. Anthony\n v. Georgia, 69 F.4th 796, 804 (11th Cir. 2023). The parties agree that\n Alabama law applies, and the interpretation of an insurance con-\n tract is a question of law. Twin City Fire Ins. Co. v. Alfa Mut. Ins. Co.,\n 817 So. 2d 687, 691 (Ala. 2001). When the terms of a contract are\n unambiguous, the contract is enforced according to those terms.\n Am. & Foreign Ins. Co. v. Tee Jays Mfg. Co., 699 So. 2d 1226, 1228 (Ala.\n 1997). No ambiguity exists when, examining the contract as a\n whole and giving the words their ordinary meaning, the contract\n has “only one reasonable interpretation.” Lafayette Land Acquisi-\n tions II, LLC v. Walls, 385 So. 3d 519, 522 (Ala. 2023).\n III. ANALYSIS\n Three disputes frame this appeal. The first concerns who\n was authorized to give notice under the policy. A.B. contends that\n her attorney could provide notice “on [Barrow’s] behalf,” while\n Nationwide maintains that only Barrow himself, or someone act-\n ing with his authorization, could do so. The second issue concerns\n whether notice, however authorized, was timely under the policy’s\n requirement that written notice be given “as soon as reasonably\n possible” after the 2013 occurrence. The third issue concerns\n whether the district court improperly relied on background facts\n regarding Barrow’s criminal conduct in granting summary judg-\n ment. We address each issue in turn.\n\fUSCA11 Case: 24-13138 Document: 39-1 Date Filed: 01/07/2026 Page: 6 of 16\n\n\n\n\n 6 Opinion of the Court 24-13138\n\n A. Whether the Policy Permitted A.B. to Provide Notice on\n Barrow’s Behalf.\n The “Policy Conditions” section of Barrow’s policy de-\n scribes the notice requirement as follows:\n 4. Notice. You or someone on your behalf must:\n (a) as soon as reasonably possible, give us, our\n agent or sales representative written notice of\n an occurrence to which this policy may apply.\n (b) promptly give us all legal papers or reports re-\n lating to the occurrence when a claim or suit\n is filed against an insured.\n (emphasis in original). The policy defines “you” and “your” to\n mean “the first named insured shown on the Declarations,” which\n in this case is Barrow. It defines “occurrence” to include incidents\n resulting in “personal injury caused by an insured . . . during the\n policy period.” And it defines “personal injury” to include “inva-\n sion of rights of privacy.” As relevant to the dispute here, the policy\n required Barrow “or someone on [his] behalf ” to provide written\n notice to Nationwide of the occurrence “as soon as reasonably pos-\n sible.”\n It is undisputed that Nationwide’s first notice of the occur-\n rences came on November 9, 2018, when A.B.’s attorney served a\n subpoena on Barrow’s Nationwide agent in the underlying state lit-\n igation. The parties disagree, however, whether that act consti-\n tuted notice given “on [Barrow’s] behalf ” under the policy. We\n conclude that it did.\n\fUSCA11 Case: 24-13138 Document: 39-1 Date Filed: 01/07/2026 Page: 7 of 16\n\n\n\n\n 24-13138 Opinion of the Court 7\n\n Alabama courts interpret insurance policies “as a reasonable\n person in the insured’s position would have understood them,” giv-\n ing “words used in the policy their common, everyday meaning”\n and construing ambiguous provisions “in favor of the insured.”\n Travelers Cas. & Sur. Co. v. Ala. Gas Corp., 117 So. 3d 695, 699–700\n (Ala. 2012) (emphasis and citations omitted). Traditionally, “[t]he\n phrases in behalf of and on behalf of have . . . signified different\n things.” Behalf, BLACK’S LAW DICTIONARY (12th ed. 2024) (citation\n omitted). “In behalf of ” historically meant “in the interest or for\n the benefit of,” while “on behalf of ” meant “as the agent or repre-\n sentative of.” Id. (citation omitted). But “[i]n current usage,” the\n distinction between “on behalf of ” and “in behalf of ” is “seldom\n followed.” Id. (citation omitted).\n “On behalf of ” is “much more common in both senses,”\n meaning it now signifies actions taken “in the interest or for the\n benefit of ” another, even if those actions were not performed by\n an “agent or representative.” Id. (citation omitted); see also Behalf,\n WEBSTER’S THIRD NEW INT’L DICTIONARY 198 (1993) (defining “in\n behalf of or on behalf of ” as “in the interest of: as the representative\n of: for the benefit of ”).\n Nationwide relies on traditional agency principles to define\n “on behalf of,” arguing that A.B.’s attorney could not have acted on\n Barrow’s behalf because the attorney did not represent Barrow as\n his agent. But this interpretation fails to account for the “common,\n everyday meaning” of the term as it has evolved. Ala. Gas, 117 So.\n 3d at 699 (citation omitted). The American Heritage Dictionary\n\fUSCA11 Case: 24-13138 Document: 39-1 Date Filed: 01/07/2026 Page: 8 of 16\n\n\n\n\n 8 Opinion of the Court 24-13138\n\n explains that, although the traditional interpretation of “in behalf\n of” has been “for the benefit of,” while “on behalf of” has been un-\n derstood “as the agent of,” those meanings have changed:\n [Because] the two meanings are quite close, the\n phrases are often used interchangeably, even by repu-\n table writers. Statistically, on behalf of is used far more\n frequently than in behalf of, and in fact the Usage\n Panel prefers on behalf of for both meanings. In our\n 2004 survey, 87 percent of the Panel preferred on be-\n half of in the sentence The lawyer spoke to the media (in\n behalf of/on behalf of) his client, conforming to the tra-\n ditional rule for using on behalf of. But some 75 per-\n cent also preferred on behalf of in the sentence After\n sitting silently as one complaint after another was raised,\n he finally spoke up (in behalf of/on behalf of) his kid’s\n coach, where the speaker is less of a spokesperson\n than an ad-hoc defender, and so the meaning “in de-\n fense of, for the benefit of ” is a better fit, and the tra-\n ditional rule therefore would require in behalf of. All\n this suggests that on behalf of may be generally sup-\n planting in behalf of.\n Behalf, AMERICAN HERITAGE DICTIONARY (5th ed. 2022).\n As ref lected in modern dictionaries and usage guides, a rea-\n sonable person in Barrow’s position could have understood that\n Nationwide’s allowance of notice by “someone on [Barrow’s] be-\n half ” permitted notice by anyone acting in his “interest” or for his\n “benefit.” Behalf, BLACK’S, supra; Behalf, AMERICAN HERITAGE, su-\n pra; Behalf, WEBSTER’S THIRD, supra. Applying this definition to the\n facts of the case, A.B.’s attorney was authorized to provide notice\n\fUSCA11 Case: 24-13138 Document: 39-1 Date Filed: 01/07/2026 Page: 9 of 16\n\n\n\n\n 24-13138 Opinion of the Court 9\n\n under the policy and did so in Barrow’s interest and benefit because\n the attorney was attempting to satisfy a condition precedent that\n would increase Barrow’s chances of obtaining coverage. As Na-\n tionwide told the district court, Barrow’s and A.B.’s interests were\n “identical or at least materially so” because “[t]he only thing that\n Barrow could want out of this [coverage] case is for A.B. to win.”\n Even without a policy provision expressly permitting notice\n by “someone on [Barrow’s] behalf,” Alabama law has long “recog-\n niz[ed] an injured party’s right [to proceed] against an insurer when\n the injured party has . . . given notice of the underlying lawsuit to\n the insurer, even when the insured has failed to do so.” Alfa Ins. Co.\n v. Templeton, 919 So. 2d 300, 304–05 & n.3 (Ala. Civ. App. 2005) (cit-\n ing Safeway Ins. Co. of Ala. v. Thompson, 688 So. 2d 271, 273–74 (Ala.\n Civ. App. 1996)). As the Supreme Court of Alabama has suggested,\n “written notice by an injured party instead of its insured could sat-\n isfy the notice requirements” of a policy with language requiring\n that notice come from the insured. Travelers Indem. Co. of Conn. v.\n Miller, 86 So. 3d 338, 341–42 (Ala. 2011) (describing commercial li-\n ability policy “provid[ing] that [insured] must notify [insurer] ‘as\n soon as practicable of an “occurrence” or an offense which may\n result in a claim’”).\n In sum, the policy’s broad language permitting notice by\n someone acting “on [Barrow’s] behalf,” the ordinary meaning of\n that phrase, and Alabama precedent recognizing that an injured\n party may provide notice (even if the insured fails to do so) all point\n in the same direction. We therefore conclude that A.B.’s attorney\n\fUSCA11 Case: 24-13138 Document: 39-1 Date Filed: 01/07/2026 Page: 10 of 16\n\n\n\n\n 10 Opinion of the Court 24-13138\n\n was authorized, both under the policy and under Alabama law, to\n give notice to Nationwide.\n But authorization alone does not save A.B.’s claim. To sur-\n vive summary judgment, she must show that a reasonable jury\n could find that Barrow or someone on his behalf gave notice “as\n soon as reasonably possible.” We thus turn to address whether un-\n der Alabama law notice was timely.\n B. Whether Nationwide Received Timely Notice.\n The Supreme Court of Alabama has held that policies re-\n quiring notice “as soon as possible” and notice “as soon as practica-\n ble” mean that “notice must be given within a reasonable time un-\n der the circumstances of the case.” Allstate Ins. Co. v. Fogg, 300 So.\n 2d 819, 821–22 (Ala. 1974) (citation omitted); accord Miller, 86 So.\n 3d at 342. “The exact phraseology used” makes “very little, or any,\n difference.” Fogg, 300 So. 2d at 821–22 (citation omitted). “Only\n two factors are to be considered in determining the reasonableness\n of a delay in giving notice to the insurer: the length of the delay\n and the reasons for the delay.” Miller, 86 So. 3d at 342. The pres-\n ence or absence of “[p]rejudice to the insurer from any such delay\n in providing notice is not a factor.” Id. And “where an insured fails\n to show a reasonable excuse or the existence of circumstances\n which would justify a protracted delay,” courts should render judg-\n ment for the insurer “as a matter of law.” Id. at 343–44 (citations\n omitted).\n Whether Nationwide received timely notice under its policy\n depends on whether we evaluate timeliness from the perspective\n\fUSCA11 Case: 24-13138 Document: 39-1 Date Filed: 01/07/2026 Page: 11 of 16\n\n\n\n\n 24-13138 Opinion of the Court 11\n\n of A.B. as the injured party or instead from the perspective of Bar-\n row as the insured. Regarding A.B., the clock does not start ticking\n to provide reasonable notice until after a claimant “learn[s] of the\n existence of the policy and obtain[s] possession of it.” Am. Liberty\n Ins. Co. v. Soules, 258 So. 2d 872, 879 (Ala. 1972) (citation omitted);\n see also 13A JORDAN R. PLITT ET AL., COUCH ON INSURANCE § 192:1\n (3d ed. June 2025 update) (stating that “failure to provide timely\n notice required by the insurance policy may be excused” based on\n the “inability to discover the existence of a policy and its terms”).\n A.B. and her attorney had no reason to suspect that Barrow\n had a policy with Nationwide until September 25, 2018, when\n counsel for Barrow’s wife stated in response to an email inquiry\n that he “th[ought]” Nationwide was the insurer. And A.B.’s attor-\n ney did not actually receive the Nationwide policy until mid-Janu-\n ary 2019. Accepting the district court’s unchallenged determina-\n tion that a jury could find notice was given on November 9, 2018,\n Nationwide thus received notice before A.B.’s attorney ever ob-\n tained the policy. On these facts, A.B.’s attorney acted with reason-\n able promptness.\n Barrow, however, stands on different footing. Barrow “is\n presumed to be familiar with the provisions of his policy,” Crook v.\n Allstate Indem. Co., 314 So. 3d 1188, 1200 (Ala. 2020) (citation omit-\n ted), which was issued to him in October 2013, and he committed\n the conduct triggering the umbrella policy in late 2013. Nothing in\n the record suggests that Barrow did not receive or understand the\n policy, or that he was otherwise excused from giving notice. But\n\fUSCA11 Case: 24-13138 Document: 39-1 Date Filed: 01/07/2026 Page: 12 of 16\n\n\n\n\n 12 Opinion of the Court 24-13138\n\n Barrow never notified Nationwide of the conduct triggering the\n policy. Instead, the record establishes that 58 months passed before\n A.B.’s attorney did so.\n In Alabama, the timeliness inquiry turns not on equitable\n considerations but on the reason for the delay itself. As Alabama\n law makes clear, “in making this determination as to whether no-\n tice was given as soon as reasonably possible the only factors to be\n considered are the length of the delay in giving notice and the rea-\n sons therefor.” U.S. Fid. & Guar. Co. v. Baldwin Cnty. Home Builders\n Ass’n, 770 So. 2d 72, 75 (Ala. 2000). Thus, once a delay is shown,\n the insured must come forward with evidence of a reasonable jus-\n tification. Indeed, “where an insured fails to show a reasonable ex-\n cuse or the existence of circumstances which would justify a pro-\n tracted delay, the Court should as a matter of law hold that there\n has been a breach of the condition as to notice.” Miller, 86 So. 3d at\n 343–44 (citation omitted). Applied here, these principles foreclose\n any attempt to shift the notice obligation to a later date through\n action taken by A.B. on Barrow’s behalf.\n The Supreme Court of Alabama has held that even “[a] five-\n month delay in giving notice is sufficiently protracted as to require\n the insured to offer evidence of a reasonable excuse for the delay.”\n Nationwide Mut. Fire Ins. Co. v. Estate of Files, 10 So. 3d 533, 536 (Ala.\n 2008). Here “there is no evidence of any excuse or justification for\n [Barrow’s] failure to provide the requisite notice.” Id. As such, the\n notice provided in November 2018 on his behalf was untimely.\n\fUSCA11 Case: 24-13138 Document: 39-1 Date Filed: 01/07/2026 Page: 13 of 16\n\n\n\n\n 24-13138 Opinion of the Court 13\n\n Barrow’s untimely delay is dispositive under the policy and\n Alabama law. The policy requires “[Barrow] or someone on [his]\n behalf ” to inform Nationwide of an occurrence “as soon as reason-\n ably possible.” A.B. does not dispute that it was “reasonably possi-\n ble” for Barrow to give notice long before November 2018. And if\n it was reasonably possible for Barrow to do so, then it was also rea-\n sonably possible for “[Barrow] or someone on [his] behalf ” to do\n so during that same period. See Encino Motorcars, LLC v. Navarro,\n 584 U.S. 79, 87 (2018) (noting that “or” is “almost always disjunc-\n tive” (citation omitted)). Any other reading would detach the\n phrase “on [his] behalf ” from the policy’s single timing require-\n ment and create two different notice deadlines. The policy does\n not permit that result. Had Barrow waited until November 2018 to\n notify Nationwide himself, the 58-month delay would plainly bar\n coverage. Yet under A.B.’s theory, her attorney could revive that\n same forfeited coverage by providing notice on Barrow’s behalf on\n that same day. The policy allows notice from someone other than\n Barrow; it does not reset the notice clock for that person.\n Two Alabama precedents confirm that Barrow’s inexcusable\n delay is dispositive. In Files, the Supreme Court of Alabama con-\n sidered whether a policy provision requiring notice of an occur-\n rence “as soon as practicable” barred coverage where the policy-\n holder injured the plaintiff but “never notified” the insurer of the\n incident. 10 So. 3d at 533. The plaintiff ’s attorney informed the\n insurer of the incident five months after it occurred, and the court\n assumed without deciding that the insurer’s “actual notice of the\n occurrence excused [the insured] from any continuing duty” to\n\fUSCA11 Case: 24-13138 Document: 39-1 Date Filed: 01/07/2026 Page: 14 of 16\n\n\n\n\n 14 Opinion of the Court 24-13138\n\n provide notice. Id. at 533, 536. Based on the notice provided by the\n plaintiff ’s attorney, the court calculated the delay to be only five\n months. Id. at 536.\n But in assessing the reasonableness of the delay, the court\n focused exclusively on the insured’s—not the plaintiff ’s—excuses.\n Because the insured “did not testify at trial,” there was “no evidence\n of any excuse or justification for his failure to provide the requisite\n notice as soon as practicable.” Id. (emphasis added). And the plain-\n tiff “ma[de] no attempt to justify [the insured’s] failure.” Id. The\n court thus held “as a matter of law” that the insured “failed to com-\n ply with the notice requirement of his . . . insurance policy.” Id. In\n turn, the plaintiff was “not entitled to reach and apply the liability\n coverage of that policy to satisfy the judgment he obtained against\n [the insured].” Id.\n The Supreme Court of Alabama took the same approach in\n Miller. As in Files, the insurance company in Miller received notice\n of an occurrence from the “injured party” but not the insured. 86\n So. 3d at 342. The court “note[d] that [the insurer] d[id] not dispute\n that written notice by an injured party instead of its insured could\n satisfy the notice requirements of the policies.” Id. So, it proceeded\n to determine “whether such notice was timely.” Id. In doing so, it\n again focused on timeliness from the perspective of the insured.\n See id. at 347–48 (holding “[u]nder our decision in Files [that the\n plaintiff was] barred from recovering under the [insured’s] policies”\n because the insured “did not provide [the insurer] with notice of\n the occurrence” and the plaintiff “did not offer any excuses” for the\n\fUSCA11 Case: 24-13138 Document: 39-1 Date Filed: 01/07/2026 Page: 15 of 16\n\n\n\n\n 24-13138 Opinion of the Court 15\n\n insured’s delay). The Miller court also overruled as an “aberration”\n a prior decision suggesting that an injured party could cure an in-\n sured’s notice deficiency without offering a persuasive reason for\n the insured’s delay. See id. at 344–47 (discussing Haston v.\n Transamerica Ins. Servs., 662 So. 2d 1138 (Ala. 1995)).\n The court in both cases assumed that notice could come\n from the injured party. See Files, 10 So. 3d at 536; Miller, 86 So. 3d\n at 342. And in considering the timeliness of such notice, the court\n held that notice provided by an injured party is timely only if it\n would have been timely from the perspective of the insured. Files,\n 10 So. 3d at 536; Miller, 86 So. 3d at 347–48. This approach is logical\n because, as the court explained in Files, “the terms of the policy\n imposing obligations on the insured are effective as against the in-\n jured party.” 10 So. 3d at 534 (citation omitted). In other words, an\n injured party standing in the shoes of an insured under section 27-\n 23-2 cannot provide “timely notice . . . independent of the contrac-\n tual duties of the insured.” Miller, 86 So. 3d at 347.\n Barrow did not act diligently, and the consequences for A.B.\n are significant. But the policy imposed a single notice obligation,\n one that applied equally whether notice came from Barrow him-\n self or from someone acting on his behalf. It cannot be that Bar-\n row was bound by one timeline while A.B. or her attorney enjoyed\n another, later one. Nor can A.B., as a third-party claimant proceed-\n ing through Barrow, obtain greater rights under the policy than\n Barrow himself possessed. The notice requirement ran from the\n occurrence, and it bound both Barrow and anyone acting on his\n\fUSCA11 Case: 24-13138 Document: 39-1 Date Filed: 01/07/2026 Page: 16 of 16\n\n\n\n\n 16 Opinion of the Court 24-13138\n\n behalf. Because that obligation was not satisfied, and because no\n valid excuse for Barrow’s 58-month delay was offered, we are not\n free to rewrite the contract to reach a different result. The district\n court therefore correctly granted summary judgment for Nation-\n wide.\n C. Whether the District Court Violated Rule 56.\n Finally, A.B. argues that the district court violated Federal\n Rule of Civil Procedure 56 by including background facts concern-\n ing Barrow’s criminal conduct, and that those facts improperly in-\n f luenced its coverage analysis. The record does not support that\n contention. The district court’s ruling rests on the policy’s notice\n provisions and Alabama law governing timeliness. The back-\n ground facts appear only to provide context and chronology. We\n likewise recounted similar facts in our prior decision addressing\n these same events. See Barrow, 29 F.4th at 1300–01. The inclusion\n of such background material does not implicate Rule 56 and fur-\n nishes no basis for reversal.\n IV. CONCLUSION\n For the reasons stated above, we AFFIRM the district\n court’s grant of summary judgment in favor of Nationwide.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11236911/", "author_raw": "LAGOA, Circuit Judge:"}]}	WILLIAM PRYOR	LAGOA	KIDD	1		{"WILLIAM PRYOR": ", Chief", "LAGOA": ", Circuit", "KIDD": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10770326/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,770,448	United States v. Abdoulaye Barry	2026-01-07	23-12101	U.S. Court of Appeals for the Eleventh Circuit	{"judges": "Before WILLIAM PRYOR, Chief Judge, and GRANT and KIDD, Circuit Judges.", "parties": "", "opinions": [{"author": "KIDD, Circuit Judge:", "type": "010combined", "text": "USCA11 Case: 23-12101 Document: 55-1 Date Filed: 01/07/2026 Page: 1 of 20\n\n\n\n\n FOR PUBLICATION\n\n\n In the\n United States Court of Appeals\n For the Eleventh Circuit\n ____________________\n No. 23-12101\n ____________________\n\n UNITED STATES OF AMERICA,\n Plaintiﬀ-Appellee,\n versus\n\n ABDOULAYE BARRY,\n Defendant-Appellant.\n ____________________\n Appeal from the United States District Court\n for the Northern District of Georgia\n D.C. Docket No. 1:21-cr-00385-ELR-JSA-5\n ____________________\n\n Before WILLIAM PRYOR, Chief Judge, and GRANT and KIDD, Circuit\n Judges.\n KIDD, Circuit Judge:\n Abdoulaye Barry and his codefendants used shared stolen\n credit cards and shared memberships at a popular warehouse store\n to purchase large amounts of cigarettes. As a result, they were\n\nUSCA11 Case: 23-12101 Document: 55-1 Date Filed: 01/07/2026 Page: 2 of 20\n\n\n\n\n 2 Opinion of the Court 23-12101\n\n charged with several fraud offenses. Barry alone went to trial, and\n a jury convicted him of a subset of the offenses. At sentencing, the\n district court held Barry accountable for the total amount that he\n and his codefendants charged on the shared credit cards without\n first determining the amount for which Barry himself should be re-\n sponsible. That was a legal error. So we vacate Barry’s sentence\n and remand the case to the district court for resentencing.\n I. BACKGROUND\n Barry and his codefendants used stolen credit cards to pur-\n chase over $2 million in cigarettes from Sam’s Club, a membership-\n based warehouse. Here is how the scheme worked:\n Sam’s Club requires a personal or business membership to\n shop in its stores. The coconspirators in this case opened business\n memberships. For that type of membership, the person who opens\n the account is the primary cardholder and the only person who can\n make changes to the account. The primary cardholder can add sec-\n ondary members to the account. A business membership requires\n both photo identification and a government-issued business li-\n cense. During the relevant timeframe, the Sam’s Club membership\n card included a photograph of the member, which was taken in the\n store.\n The coconspirators obtained Sam’s Club memberships in\n their names and aliases, and they sometimes provided fraudulent\n tobacco licenses to do so. They then used the memberships and\n stolen credit cards to buy cigarettes in large quantities.\n\nUSCA11 Case: 23-12101 Document: 55-1 Date Filed: 01/07/2026 Page: 3 of 20\n\n\n\n\n 23-12101 Opinion of the Court 3\n\n Barry was the primary account holder on two business\n membership accounts, one for Enclave One Stop Shop and one for\n Suwannee Smoke Shop. One codefendant also used the Enclave\n One Stop Shop account, three codefendants used the Suwanee\n Smoke Shop account, and one of those three was issued a member-\n ship card for Suwanee Smoke Shop. Barry was a secondary mem-\n ber on two other business accounts, which were for Sawalii Smart\n Shop and Dominic Tobacco Shop. Three codefendants used the\n Sawalii Smart Shop account, and three codefendants used the\n Dominic Tobacco Shop account. Additionally, Barry used stolen\n credit cards that were also used by other codefendants.\n Barry and his codefendants faced an 85-count indictment in\n the district court. Count 1 alleged that the group conspired to com-\n mit credit card fraud, in violation of 18 U.S.C. § 1029(a)(2) and\n (b)(2). Barry was also charged individually with six counts of credit\n card fraud (Counts 62–67), in violation of 18 U.S.C. §§ 1029(a)(2)\n and 2, and six counts of aggravated identity theft (Counts 68–73),\n in violation of 18 U.S.C. §§ 1028A(a)(1) and 2. The government al-\n leged that Barry used six victims’ credit cards, and each of the six\n pairs of credit card fraud and aggravated identity theft charges cor-\n responded to each victim.\n After Barry’s codefendants pleaded guilty, Barry proceeded\n to trial, which lasted four days. The government called five of the\n six victims to testify at trial to establish that they had not made or\n authorized the purchases at issue on their credit cards.\n\nUSCA11 Case: 23-12101 Document: 55-1 Date Filed: 01/07/2026 Page: 4 of 20\n\n\n\n\n 4 Opinion of the Court 23-12101\n\n After the government rested its case, the district court\n granted Barry’s motion for a judgment of acquittal as to Counts 64\n and 70 because the alleged victim, G.L., did not testify and there\n was no other evidence that Barry’s use of the associated card was\n unauthorized. Subsequently, the jury also acquitted Barry of\n Counts 62 and 68, associated with alleged victim S.M. The jury\n found Barry guilty of the remaining charges.\n Prior to sentencing, a probation officer prepared a presen-\n tence investigation report. The probation officer calculated the loss\n amount as $539,131.79, which included losses caused by Barry’s\n codefendants using the same stolen credit cards as Barry. The pro-\n bation officer excluded from the loss amount transactions involv-\n ing the use of S.M.’s and G.L.’s cards because Barry was acquitted\n of the charges associated with those cards.\n Barry objected to this loss calculation. At sentencing, the dis-\n trict court heard argument from the parties regarding the loss\n amount. The government argued for a loss amount in the\n $550,000–$1,500,000 range of the Sentencing Guidelines, or alter-\n natively, in the $250,000–$550,000 range. Barry argued that his loss\n amount should be restricted to the transactions that he personally\n made, which amounted to $117,261.98. Barry conceded that he was\n in a conspiracy and that he was working with someone else, but he\n contended that the government had not produced “any evidence\n to show that [he] should have been aware that these other people\n were using the same cards as him.”\n\nUSCA11 Case: 23-12101 Document: 55-1 Date Filed: 01/07/2026 Page: 5 of 20\n\n\n\n\n 23-12101 Opinion of the Court 5\n\n The district court stated the following when announcing the\n decision on the loss amount:\n I also overrule or reject the defendant’s objection that\n he should essentially only be held accountable for the\n count reﬂecting his own conduct, because I do ﬁnd\n that the government did prove a conspiracy existed\n and the jury obviously did agree to that.\n\n So I ﬁnd that, in this case, conspiracy, which I ﬁnd\n equates to jointly undertaking criminal activity, leads\n us to the conclusion that probation has reached,\n which I agree with, and that is that 12 is the correct\n number of levels to add for loss.\n\n Therefore, the district court determined that the loss amount that\n the probation officer calculated was correct.\n The district court ultimately imposed a sentence of 69\n months of imprisonment but left open the amount of restitution.\n Barry then appealed his judgment. Subsequently, the district court\n ordered Barry to pay restitution in the amount of $539,131.79—the\n total disputed loss amount.\n II. STANDARD OF REVIEW\n We review questions of law arising under the Sentencing\n Guidelines de novo. United States v. Huff, 609 F.3d 1240, 1245 (11th\n Cir. 2010). We review “for clear error a factual finding regarding\n the specific amount of restitution.” Huff, 609 F.3d at 1247.\n\nUSCA11 Case: 23-12101 Document: 55-1 Date Filed: 01/07/2026 Page: 6 of 20\n\n\n\n\n 6 Opinion of the Court 23-12101\n\n III. DISCUSSION\n A. Loss Amount\n The district court did not determine the loss amount at-\n tributable to Barry individually, and the parties agree that this fail-\n ure was in error. The Sentencing Guidelines require a defendant to\n be held accountable for all acts that he “committed, aided, abet-\n ted . . . or willfully caused.” U.S.S.G. § 1B1.3(a)(1)(A) (Nov. 2021).\n In cases involving joint criminal activity, a defendant may also be\n held accountable for the conduct of others, but only if that conduct\n was (1) “within the scope of the jointly undertaken criminal activ-\n ity,” (2) “in furtherance of that criminal activity,” and (3) “reasona-\n bly foreseeable in connection with that criminal activity.” Id.\n § 1B1.3(a)(1)(B)(i)–(iii). Thus, “a district court may hold partici-\n pants in a conspiracy responsible for the losses resulting from the\n reasonably foreseeable acts of co-conspirators in furtherance of the\n conspiracy.” United States v. Mateos, 623 F.3d 1350, 1370 (11th Cir.\n 2010) (citation modified).\n But “to determine a defendant’s liability for the acts of oth-\n ers, the district court must first make individualized findings con-\n cerning the scope of criminal activity undertaken by a particular\n defendant.” Id. (citation omitted); see U.S.S.G. § 1B1.3, cmt. (n.\n 3(B)). The district court thus committed a legal error when it con-\n cluded that “conspiracy . . . equates to jointly undertaking criminal\n activity” and then failed to make individualized findings. This is be-\n cause the scope of the defendant’s jointly undertaken activity is not\n necessarily the same as the scope of the entire conspiracy, so the\n\nUSCA11 Case: 23-12101 Document: 55-1 Date Filed: 01/07/2026 Page: 7 of 20\n\n\n\n\n 23-12101 Opinion of the Court 7\n\n relevant conduct for each coconspirator likewise is not necessarily\n the same. U.S.S.G. § 1B1.3, cmt. (n. 3(B)).\n Our precedents illustrate why this is reversible error. For in-\n stance, in United States v. Medina, one of the defendants who re-\n ceived kickbacks from a healthcare fraud scheme challenged the\n calculation of her loss amount at sentencing, which included every\n claim the conspirators had submitted to Medicare. 485 F.3d 1291,\n 1303 (11th Cir. 2007). We sent the case back for resentencing be-\n cause we could not determine the factual basis for holding the de-\n fendant responsible for every claim submitted to Medicare during\n the conspiracy. Id. at 1304–05.\n Similarly, in United States v. Hunter, the defendants chal-\n lenged the district court’s loss calculation for their convictions\n stemming from a counterfeit-check conspiracy. 323 F.3d 1314, 1316\n (11th Cir. 2003). The district court found at sentencing that “a ring”\n existed and that it would not be “unusual that the various partici-\n pants in the ring would not necessarily know one another.” Id. at\n 1318. But the district court also found that it was “certainly reason-\n ably foreseeable they would be aware of the fact they were partici-\n pating in a larger scheme than their own individual conduct,” and\n it held the defendants responsible for the larger amount of the con-\n spiracy. Id. We determined that the district court erred in assessing\n the defendants’ relevant conduct. Id. at 1320. Although the district\n court found that the conduct was reasonably foreseeable, it did not\n first identify the scope of the activity the defendants agreed to\n\nUSCA11 Case: 23-12101 Document: 55-1 Date Filed: 01/07/2026 Page: 8 of 20\n\n\n\n\n 8 Opinion of the Court 23-12101\n\n jointly undertake. Id. “Only after the district court makes individu-\n alized findings concerning the scope of criminal activity the defend-\n ant undertook is the court to determine reasonable foreseeability.”\n Id. We vacated the sentence and remanded the case for particular-\n ized findings about the scope of the defendants’ agreement to par-\n ticipate in the fraudulent scheme and for resentencing. Id. at 1323–\n 24.\n The rule is that a sentencing judge must make individualized\n findings. “[W]ithout individualized findings concerning the scope\n of [the defendant’s] involvement with the conspiracy, it cannot be\n determined that [he] should be liable for some quantity less than\n all.” United States v. Ismond, 993 F.2d 1498, 1499 (11th Cir. 1993).\n But we recognize that we have also held that “a sentencing court’s\n failure to make individualized findings regarding the scope of the\n defendant’s activity is not grounds for vacating a sentence if the\n record supports the court’s determination with respect to the of-\n fense conduct, including the imputation of others’ unlawful acts to\n the defendant.” United States v. Petrie, 302 F.3d 1280, 1290 (11th Cir.\n 2002) (citation modified); see also Pierre, 825 F.3d 1183, 1198 (11th\n Cir. 2016) (holding that regardless of whether the district court\n made individualized findings, the record supported the court’s de-\n terminations); Mateos, 623 F.3d at 1370–71 (finding that the record\n clearly supported the district court’s determination to hold the de-\n fendant responsible for the entire loss amount). In each of these\n cases, we found that the record clearly supported holding each of\n the defendants accountable for the loss amounts at issue.\n\nUSCA11 Case: 23-12101 Document: 55-1 Date Filed: 01/07/2026 Page: 9 of 20\n\n\n\n\n 23-12101 Opinion of the Court 9\n\n Not so here. After careful review, we determine that the rec-\n ord contains insufficient evidence for us to find that Barry neces-\n sarily should be liable for the conspiracy’s entire loss amount.\n The evidence at trial showed that opening a business mem-\n bership account at Sam’s Club required a customer to go into the\n store with a photo identification and business license. The person\n who opens the account is the primary cardholder and the only per-\n son who can add a secondary member to the account by bringing\n that person into the Sam’s Club store. Barry was a primary account\n holder for two business memberships.\n The government presented evidence that several of Barry’s\n coconspirators used these two accounts, but the evidence estab-\n lished only that one coconspirator was a member of those accounts.\n So there is insufficient evidence to allow us to infer that Barry, as\n the primary account holder, necessarily accompanied the remain-\n ing coconspirators to the Sam’s Club store to be added as second-\n ary members to his accounts. Because of that deficiency, the gov-\n ernment failed to tie these codefendants in time or place to Barry.\n Similarly, while Barry had two secondary membership accounts,\n he would have had to go with only the primary account holder to\n be added to those accounts. The evidence does not establish that\n he should have known of other secondary members or other users\n of the accounts.\n The government also failed to connect all of the credit card\n charges to Barry. At trial, the government established that Barry\n and his codefendants used the same stolen credit cards, sometimes\n\nUSCA11 Case: 23-12101 Document: 55-1 Date Filed: 01/07/2026 Page: 10 of 20\n\n\n\n\n 10 Opinion of the Court 23-12101\n\n within one day of each other. But we cannot reasonably infer from\n shared usage that Barry knew about the other users and what they\n were doing with the cards. While the evidence shows that Barry\n was passing credit cards to someone, it does not reveal who that\n someone was.\n Our dissenting colleague reads these facts differently and be-\n lieves that we must “[go] along with [Barry’s] narrative” about\n someone named “John” to “reject as clearly erroneous the district\n court’s factual finding that Barry and his codefendants jointly un-\n dertook the scheme.” First, as we note above, the district court\n committed a legal error by equating “jointly undertaken criminal\n activity” with the scope of the entire conspiracy. The dissent at-\n tempts to rehabilitate this error by interpreting the district court’s\n statement to say that, “in this case,” the district court viewed the\n two as being coterminous. The dissent then asserts that this inter-\n pretation was a factual finding that we should review for clear er-\n ror. We disagree with the dissent’s interpretation. The district\n court’s statement that “conspiracy, which I find equates to jointly un-\n dertaking criminal activity” (emphasis added) is simple to under-\n stand—and legally incorrect. That the district court used the word\n “find” when committing this error does not convert the legal con-\n clusion into a factual finding.\n After converting the district court’s conclusion, the dissent\n goes on to make the individualized findings that it admits the dis-\n trict court, erroneously, did not make—even though the parties\n\nUSCA11 Case: 23-12101 Document: 55-1 Date Filed: 01/07/2026 Page: 11 of 20\n\n\n\n\n 23-12101 Opinion of the Court 11\n\n discussed the conspiratorial acts at sentencing. In making its find-\n ings, the dissent appears to draw inferences in favor of the govern-\n ment rather than “[go] along with [Barry’s] narrative.” Yet it is not\n Barry’s burden to prove loss amount. Medina, 485 F.3d at 1304\n (“The amount of loss must be proven [by the government] by a\n preponderance of the evidence, and the burden must be satisfied\n with reliable and specific evidence” (citation modified)). Regardless\n of what role “John” might have played in this scheme, to uphold\n the district court’s sentence, we would have to find that the gov-\n ernment connected Barry to each person and each credit card\n charge in the conspiracy with reliable and specific evidence. We\n cannot make that finding on the evidence presented, so we will\n leave any such determination to the district court on remand.\n In summary, the district court concluded that Barry was re-\n sponsible for all the losses caused by his coconspirators without\n considering whether those losses fell within the scope of the jointly\n undertaken criminal activity that was reasonably foreseeable to\n him. That conclusion was erroneous, so we vacate Barry’s sentence\n and remand the case to the district court for resentencing. On re-\n mand, the district court will have the opportunity to make individ-\n ualized findings regarding the scope of the criminal activity that\n Barry undertook, and only after doing so, what conspiratorial con-\n duct was reasonably foreseeable to Barry.\n\nUSCA11 Case: 23-12101 Document: 55-1 Date Filed: 01/07/2026 Page: 12 of 20\n\n\n\n\n 12 Opinion of the Court 23-12101\n\n B. Restitution\n The district court also ordered Barry and his codefendants\n jointly to pay $539,131.79 in restitution. Barry argues that his or-\n dered restitution should match his individual loss amount. Indeed,\n the measure of restitution is each victim’s loss proximately caused\n by the defendant. See United States v. Martin, 803 F.3d 581, 593–94\n (11th Cir. 2015). On remand, the district court should also recon-\n sider Barry’s restitution amount.\n C. Clerical Error in the Criminal Judgment\n Finally, there is a clerical error in Barry’s judgment, which\n this Court may raise sua sponte and remand with instructions to\n correct it. United States v. Massey, 443 F.3d 814, 822 (11th Cir. 2006).\n The judgment states that, for Counts 71, 72, and 73, Barry was con-\n victed of violating 18 U.S.C. §§ 1028(a)(1) and (2). But that is the\n wrong statute. The aggravated identity theft statute is 18 U.S.C.\n § 1028A, not 1028(a). Therefore, on remand, the district court is di-\n rected to enter an amended judgment that corrects this clerical er-\n ror.\n IV. CONCLUSION\n We VACATE Barry’s sentence and REMAND to the district\n court for resentencing in accordance with this opinion, as well as\n to correct the clerical error in Barry’s judgment.\n\nUSCA11 Case: 23-12101 Document: 55-1 Date Filed: 01/07/2026 Page: 13 of 20\n\n\n\n\n 23-12101 GRANT, J., Dissenting 1", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11237033/", "author_raw": "KIDD, Circuit Judge:"}, {"author": "GRANT, Circuit Judge, dissenting", "type": "dissent", "text": "GRANT, Circuit Judge, dissenting:\n I respectfully disagree with the majority’s decision to\n remand the case to the district court for resentencing. In my view,\n the district judge made a factual ﬁnding that Barry and his\n coconspirators embarked on a joint scheme to lie and steal, and it\n did not clearly err in holding Barry responsible for the damage\n done by his partners in crime.\n “Whether a co-conspirator’s act was reasonably foreseeable\n to the defendant so that it qualifies as relevant conduct is a question\n of fact reviewed for clear error.” United States v. Valarezo-Orobio,\n 635 F.3d 1261, 1264 (11th Cir. 2011). And under clear error review,\n the Court should affirm the sentence so long as it is “plausible in\n light of the record viewed in its entirety” that the conduct at issue\n was “part of the same common scheme or plan.” United States v.\n Siegelman, 786 F.3d 1322, 1333 (11th Cir. 2015) (quotation omitted).\n I agree with the majority that the district court’s statement\n on this question “is simple to understand.” Majority Op. at 10. But\n it is simpler still when one considers the complete quotation rather\n than a partial one: “I find that, in this case, conspiracy, which I find\n equates to jointly undertaking criminal activity, leads us to the\n conclusion that” Barry is responsible for a higher loss amount.\n Sentencing Tr. at 34 (emphasis added); see Majority Op. at 6. So\n while the scope of “jointly undertaken criminal activity” will not\n always be the same as the scope of an entire conspiracy, here the\n district court made a factual finding that in this case, the two were\n\nUSCA11 Case: 23-12101 Document: 55-1 Date Filed: 01/07/2026 Page: 14 of 20\n\n\n\n\n 2 GRANT, J., Dissenting 23-12101\n\n coextensive. See U.S. Sentencing Guidelines § 1B1.3 cmt. n.3(B)\n (Nov. 2021).\n Refusing to accept this factual finding for what it is, the\n majority insists that the district court committed “legal error” by\n equating—as a matter of law—jointly undertaken criminal activity\n and conspiracy. Majority Op. at 6–7, 10. Not so. Indeed, “the\n record from the entire sentencing hearing” contradicts this\n surprising assertion. See United States v. Suarez, 939 F.2d 929, 934\n (11th Cir. 1991). To start, the presentence investigation report teed\n up the “unresolved factual issue” of whether Barry and his\n codefendants jointly undertook the scheme. And at the very\n beginning of the sentencing hearing, the district court asked the\n parties to present any objections to the “factual findings”\n underlying the probation officer’s Guidelines range calculation.\n Sentencing Tr. at 5. On the question of loss amount, both sides\n went great lengths to highlight the evidence that supported their\n view of the facts—including surveillance images, Sam’s Club\n records, and witness testimony from Barry and others. See id. at 8–\n 34. Against this backdrop, the district court adopted the probation\n officer’s findings on this “unresolved factual issue.”\n The majority’s characterization of the district court’s\n relevant conduct determination as a legal conclusion about all\n conspiracies, rather than a factual finding about this conspiracy, is\n also implausible because Barry did not object on those grounds at\n the sentencing hearing. In fact, Barry concedes on appeal that “the\n district court’s error in failing to make individualized findings as to\n\nUSCA11 Case: 23-12101 Document: 55-1 Date Filed: 01/07/2026 Page: 15 of 20\n\n\n\n\n 23-12101 GRANT, J., Dissenting 3\n\n loss can be overcome if the trial evidence supports its calculation.”\n So the record reflects, and the parties agree, that the district court\n made a factual conclusion that in this case the jointly undertaken\n activity was the same as the conspiracy writ large. That conclusion\n must therefore be reviewed for clear error.\n That high standard is not met here. The facts do not show\n a sprawling conspiracy with many moving parts; it was a petty get-\n rich-quick scheme in which a crew used the same set of fake Sam’s\n Club memberships and stolen credit cards to buy untaxed\n cigarettes. The scope of the criminal activity goes no further than\n that, and the district court did not clearly err by concluding that\n Barry and his coconspirators jointly undertook that scheme.\n No doubt—the sentencing court should have made\n individualized findings about the scope of the activity that the\n defendant and his coconspirators jointly agreed to undertake. See\n United States v. Hunter, 323 F.3d 1314, 1320 (11th Cir. 2003). But as\n the majority opinion recognizes, “a sentencing court’s failure to\n make individualized findings regarding the scope of the defendant’s\n activity is not grounds for vacating a sentence if the record\n support[s] the court’s determination with respect to the offense\n conduct, including the imputation of others’ unlawful acts to the\n defendant.” United States v. Petrie, 302 F.3d 1280, 1290 (11th Cir.\n 2002). So it is settled law: the absence of individualized findings\n from the district court does not mean the sentence is vacated. It\n means that we must evaluate the offense conduct determination\n based on our view of the record evidence to decide whether the\n\nUSCA11 Case: 23-12101 Document: 55-1 Date Filed: 01/07/2026 Page: 16 of 20\n\n\n\n\n 4 GRANT, J., Dissenting 23-12101\n\n district court’s conclusion was clearly erroneous. 1 See United States\n v. Moriarty, 429 F.3d 1012, 1021–22 (11th Cir. 2005); United States v.\n Baldwin, 774 F.3d 711, 730–31 (11th Cir. 2014).\n It was not. There was plenty of evidence for a reasonable\n factfinder to infer that Barry knew what his coconspirators were up\n to, and that they were all in on it together. To begin with, the\n scheme was profitable precisely because it could operate at scale:\n one fake tobacco license could support one fake primary business\n membership; one fake primary membership could support up to\n ten fake secondary memberships. Because Barry and his\n coconspirators got their hands on many fake licenses, there were\n lots of memberships to go around—each providing access to a\n nondepletable supply of cheap cigarettes. And while cheap is good,\n free is better. The evidence also shows that Barry and his\n coconspirators used the same set of stolen credit cards to make\n their tobacco purchases.\n For his part, Barry played an outsized role in the scheme,\n and the evidence reveals a web of connections. He was the primary\n account holder for two fake businesses: “Enclave One Stop Shop”\n and “Suwannee Smoke Shop.” Codefendants Ousmane Diallo,\n Alimu Bah, and Sayon Bestman all used Barry’s primary accounts.\n Diallo even joined one of those accounts as a secondary member.\n Because Sam’s Club requires the primary account holder to\n\n 1 For that reason, the majority’s critique that my clear error analysis depends\n\n on factual findings that the district court did not make falls flat. Majority Op.\n at 10–11.\n\nUSCA11 Case: 23-12101 Document: 55-1 Date Filed: 01/07/2026 Page: 17 of 20\n\n\n\n\n 23-12101 GRANT, J., Dissenting 5\n\n accompany the secondary membership applicant, Diallo’s\n secondary membership ties Barry and Diallo to the same time and\n place. The district court could easily have inferred that by allowing\n Diallo, Bah, and Bestman to use memberships associated with his\n primary account, Barry knew that these codefendants would\n become coconspirators. It was not just foreseeable—it was the\n entire point of the scheme.\n Codefendants Thierno Ly and Thierno Bah did not use\n memberships associated with Barry’s primary accounts, but that\n does not mean there were no ties. To the contrary, Ly, Bah, and\n Barry all used secondary memberships belonging to the same\n primary accounts: “Dominic Tobacco Shop” for Ly and Barry, and\n “Sawalii Smart Shop” for all three men. Plus, all three used the\n same set of stolen credit cards. Here too, the logical inference is\n that Barry knew that Ly and Bah were his partners in the scheme.\n The majority sees the record differently. It concludes that\n the government did not present enough evidence to show that\n Barry would or should have known that his codefendants were also\n part of his scam—never mind that they used the same kind of\n memberships to buy the same kind of products with the same\n stolen credit cards, often on the same day and at the same location.\n Majority Op. at 9–11. To be fair, Barry did offer a way around the\n obvious inferences. As he explained it at trial, someone named\n “John” operated the scheme as a hub-and-spoke, personally\n providing him with fake business documents and stolen credit\n cards before each purchase, and then collecting them right after.\n\nUSCA11 Case: 23-12101 Document: 55-1 Date Filed: 01/07/2026 Page: 18 of 20\n\n\n\n\n 6 GRANT, J., Dissenting 23-12101\n\n According to Barry, this “John” character would then hand them\n over to the next participant in the scheme—but Barry himself\n never took part in that transfer. All the while, he insisted, John kept\n him and his codefendants in the dark about what the others were\n doing.\n If Barry’s story is true, then the obvious inferences from the\n evidence presented at trial—all pointing to a joint undertaking\n between Barry and his codefendants—would be disproved. But the\n district court did not buy it, and I can see why.\n First, Barry could not provide basic details about his alleged\n boss. He even said he did not remember John’s last name, a curious\n assertion since he also claimed that he often purchased cigarettes\n with business memberships and credit cards bearing that name.\n Second, Barry said he did not know how to get in touch with\n John—even though John supposedly pulled all the strings and\n would give him “eight to nine thousand dollars at a time in cash”\n to buy cigarettes. How did he know when to meet John in the\n parking lot? Barry did not say.\n Third, in Barry’s telling, John paid him to do the dirty work\n because it would have been suspicious for John to visit Sam’s Club\n more than once. But this part of the story has serious holes in it\n too: if John had a Sam’s Club business membership based on a retail\n tobacco license, it would have been no more suspicious for him to\n make frequent trips to buy cigarettes in bulk than it would have\n been for Barry. Indeed, consistent with Sam’s Club policy allowing\n members to “come in and shop the club as many times as [they]\n\nUSCA11 Case: 23-12101 Document: 55-1 Date Filed: 01/07/2026 Page: 19 of 20\n\n\n\n\n 23-12101 GRANT, J., Dissenting 7\n\n like throughout the year,” Barry testified that he made multiple\n trips, often on the same day and often only a few minutes apart.\n Yet he never explained why John needed him to serve as a\n middleman, or why it seemed less suspicious for Barry to use an\n account bearing someone else’s name to make large repeat\n purchases.\n Fourth, Sam’s Club records show that Barry and his\n coconspirators often shopped at the same stores on the same day,\n sometimes within minutes of each other and swiping the same\n stolen credit cards. For example, on the night of October 30, 2019,\n Barry went shopping with Diallo at the Sam’s Club in Duluth:\n Barry made two back-to-back purchases totaling $7,157 on a stolen\n Capital One credit card; and seven minutes later, Diallo completed\n a $5,371 transaction. Thierno Bah joined the crew two days later\n at the Sam’s Club in Alpharetta. Around noon, Bah made a $9,054\n purchase with the same stolen Capitol One credit card that Barry\n used just a few days earlier in Duluth. Barry followed up four\n minutes later with a $7,271 transaction. And just 45 minutes after\n that, Diallo charged $2,674 to the stolen Capitol One credit card\n that Bah used less than an hour earlier.\n It’s no coincidence that the three men stood in the same\n checkout line and swiped the same set of stolen credit cards. And\n it’s no coincidence that police apprehended Diallo inside Barry’s\n car not long after. Unable to account for abundant record evidence\n tying him to his business partners, Barry’s fiction about “John” rests\n\nUSCA11 Case: 23-12101 Document: 55-1 Date Filed: 01/07/2026 Page: 20 of 20\n\n\n\n\n 8 GRANT, J., Dissenting 23-12101\n\n on a thoroughly “unimpressive account of events.” United States v.\n Rivera, 780 F.3d 1084, 1098 (11th Cir. 2015).\n Barry’s story simply does not add up. But unless this Court\n goes along with his narrative, I cannot see why we would reject as\n clearly erroneous the district court’s factual finding that Barry and\n his codefendants jointly undertook the scheme. Inferences like the\n ones above “are a staple of our adversary system of factfinding.”\n Cnty. Ct. of Ulster Cnty. v. Allen, 442 U.S. 140, 156 (1979). Evidence\n is evidence. And whether it is “reliable and specific” does not turn\n on whether it proves a fact directly or by way of inference.\n Majority Op. at 11.\n In short, that some of the evidence here is circumstantial\n does not excuse the majority’s failure to consider it. Clear error\n review is deferential and “imposes an especially heavy burden on\n the appellant.” Lincoln v. Bd. of Regents of Univ. Sys. of Ga., 697 F.2d\n 928, 939 (11th Cir. 1983). After all, “the district court had the\n advantage of observing the witnesses and evaluating their\n credibility firsthand.” Id. Barry does not come close to showing\n reversible error by the district court, and I respectfully dissent.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11237033/", "author_raw": "GRANT, Circuit Judge, dissenting"}]}	WILLIAM PRYOR	GRANT	KIDD	1		{"WILLIAM PRYOR": ", Chief", "GRANT": ", Circuit", "KIDD": ", Circuit"}	2	1	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10770448/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,770,577	Athos Overseas Limited Corp. v. YouTube, Inc.	2026-01-07	23-13156	U.S. Court of Appeals for the Eleventh Circuit	{"judges": "Before WILLIAM PRYOR, Chief Judge, and JORDAN and MARCUS, Cir- cuit Judges.", "parties": "", "opinions": [{"author": "JORDAN, Circuit Judge:", "type": "010combined", "text": "USCA11 Case: 23-13156 Document: 56-1 Date Filed: 01/07/2026 Page: 1 of 29\n\n\n\n\n FOR PUBLICATION\n\n\n In the\n United States Court of Appeals\n For the Eleventh Circuit\n ____________________\n No. 23-13156\n ____________________\n\n ATHOS OVERSEAS LIMITED CORP.,\n Plaintiﬀ-Appellant,\n versus\n\n YOUTUBE, INC.,\n YOUTUBE, LLC.,\n GOOGLE, LLC.,\n Defendants-Appellees.\n ____________________\n Appeal from the United States District Court\n for the Southern District of Florida\n D.C. Docket No. 1:21-cv-21698-DPG\n ____________________\n\fUSCA11 Case: 23-13156 Document: 56-1 Date Filed: 01/07/2026 Page: 2 of 29\n\n\n\n\n 2 Opinion of the Court 23-13156\n\n Before WILLIAM PRYOR, Chief Judge, and JORDAN and MARCUS, Cir-\n cuit Judges.\n JORDAN, Circuit Judge:\n This case concerns the application of one of the safe-harbor\n provisions of the 1998 Digital Millenium Copyright Act, 17 U.S.C.\n § 512(c), in the modern digital age.\n Athos Overseas Limited, which owns the copyright to many\n classic Mexican and Latin American films, sued YouTube, Inc.,\n YouTube, LLC, and YouTube’s owner, Google, LLC (collectively\n “YouTube”), alleging copyright infringement based on the unau-\n thorized posting of its copyrighted material on the YouTube web-\n site, an internet platform where users can upload video content for\n public viewing by visitors of the site. Following discovery, Athos\n filed a motion for partial summary judgment, and YouTube filed\n its own motion for summary judgment. The magistrate judge is-\n sued a report recommending that Athos’ motion be denied and\n that YouTube’s motion be granted based on § 512(c), a safe-harbor\n provision of the DMCA. The district court adopted the report and\n recommendation and entered final judgment in favor of YouTube.\n This appeal followed.\n After review of the record and the parties’ briefs, and with\n the benefit of oral argument, we affirm. We agree with the district\n court that on this record YouTube was protected by § 512(c).\n\fUSCA11 Case: 23-13156 Document: 56-1 Date Filed: 01/07/2026 Page: 3 of 29\n\n\n\n\n 23-13156 Opinion of the Court 3\n\n I\n In 1998 Congress, foreseeing the significance the internet\n would play in the coming millennium, enacted the DMCA “to up-\n date domestic copyright law for the digital age.” Viacom Int’l Inc. v.\n YouTube, Inc., 676 F.3d 19, 26 (2d Cir. 2012). The DMCA was meant\n to “provide certainty for copyright owners and Internet service\n providers with respect to copyright infringement liability” by cre-\n ating protections from copyright liability under certain circum-\n stances and by establishing a regime through which copyright own-\n ers could reliably enforce their rights. See S. Rep. No. 105-190, at 2\n (1998). The DMCA sought to balance the interests of copyright\n owners and those of the nation by ensuring “that the efficiency of\n the Internet [would] continue to improve and that the variety and\n quality of services on the Internet [would] expand.” Id. See also 4\n Melville B. Nimmer & David Nimmer, Nimmer on Copyright\n § 12B.01[C][1] at 12B-28 (2020) (“To balance these divergent inter-\n ests, the [DMCA] as enacted embodies disparate forms of protec-\n tion.”).\n Congress achieved this balance in part by establishing spe-\n cific protections for internet service providers. The DMCA safe-\n harbor provision at issue here applies to “information residing on\n systems or networks at direction of users” and reads as follows:\n (1) In general.—A service provider shall not be liable\n for monetary relief, or, except as provided in subsec-\n tion (j), for injunctive or other equitable relief, for in-\n fringement of copyright by reason of the storage at\n the direction of a user of material that resides on a\n\fUSCA11 Case: 23-13156 Document: 56-1 Date Filed: 01/07/2026 Page: 4 of 29\n\n\n\n\n 4 Opinion of the Court 23-13156\n\n system or network controlled or operated by or for\n the service provider, if the service provider—\n (A)(i) does not have actual knowledge that the\n material or an activity using the material on the sys-\n tem or network is infringing;\n (ii) in the absence of such actual knowledge, is\n not aware of facts or circumstances from which in-\n fringing activity is apparent; or\n (iii) upon obtaining such knowledge or aware-\n ness, acts expeditiously to remove, or disable access\n to, the material;\n (B) does not receive a financial benefit directly\n attributable to the infringing activity, in a case in\n which the service provider has the right and ability to\n control such activity; and\n (C) upon notification of claimed infringement\n as described in paragraph (3), responds expeditiously\n to remove, or disable access to, the material that is\n claimed to be infringing or to be the subject of infring-\n ing activity.\n 17 U.S.C. § 512(c)(1). Significantly, the safe-harbor provisions of\n the DMCA, including § 512(c), are not conditioned on “a service\n provider monitoring its service or affirmatively seeking facts indi-\n cating infringing activity[.]” 17 U.S.C. § 512(m)(1).\n Through § 512(c)(1)(C), Congress also established a “notice\n and takedown” regime for the benefit of copyright owners on the\n other side of the scales. See S. Rep. No. 105-190, at 45. To be effec-\n tive, a copyright owner’s takedown request must include\n\fUSCA11 Case: 23-13156 Document: 56-1 Date Filed: 01/07/2026 Page: 5 of 29\n\n\n\n\n 23-13156 Opinion of the Court 5\n\n “[i]dentification of the material that is claimed to be infringing . . .\n and information reasonably sufficient to permit the service pro-\n vider to locate the material.” § 512(c)(3)(A)(iii). See Lenz v. Universal\n Music Corp., 815 F.3d 1145, 1151 (9th Cir. 2016) (explaining that a\n takedown notification must include “identification of the copy-\n righted work, identification of the allegedly infringing material,\n and, critically, a statement that the copyright holder believes in\n good faith the infringing material is ‘not authorized by the copy-\n right owner, its agents, or the law’”); Perfect 10, Inc. v. CCBill LLC,\n 488 F.3d 1102, 1112 (9th Cir. 2007) (same). 1\n Under this notice-and-takedown regime service providers\n are at risk of losing the protection of the safe-harbor provision\n should they fail to adequately respond to a claim of copyright in-\n fringement. See § 512(c)(1)(C). Service providers may also lose safe-\n harbor protection if they neglect to take down infringing material\n they have actual or red flag knowledge of, regardless of whether\n any takedown request has been submitted. See § 512(c)(1)(A)(i)-(iii).\n Congress intended the notice-and-takedown regime as “a\n formalization and refinement of a cooperative process that ha[d]\n been employed to deal efficiently with network-based copyright in-\n fringement.” S. Rep. No. 105-190, at 45. It has been described as “a\n\n\n 1 Some copyright owners have complained that the DMCA’s notice-and-\n\n takedown regime “more closely resemble[s] the game of Whack-A-Mole than\n an efficacious tool for relief.” 4 Nimmer on Copyright § 12B.01[C][5] at 12B-\n 32.1. Needless to say, we apply § 512(c) as it was written, not as it could have\n been written.\n\fUSCA11 Case: 23-13156 Document: 56-1 Date Filed: 01/07/2026 Page: 6 of 29\n\n\n\n\n 6 Opinion of the Court 23-13156\n\n ‘compromise’ between protecting copyright owners and ‘insu-\n lat[ing] service providers from liability for infringements of which\n they are unaware . . . so as to make it commercially feasible for\n them to provide valuable Internet services to the public.’” Capitol\n Recs., LLC v. Vimeo, Inc., 125 F.4th 409, 413 (2nd Cir. 2025) (Vimeo\n II) (citing and quoting Capitol Recs., LLC v. Vimeo, LLC, 826 F.3d 78,\n 82 (2d Cir. 2016) (Vimeo I)).\n To qualify for safe-harbor protection under § 512(c), a ser-\n vice provider like YouTube (1) must be a covered service provider\n under § 512(k)(1); (2) must adopt and reasonably implement (and\n inform subscribers and account holders of) a policy providing for\n termination of those who are repeat infringers as set out in\n § 512(i)(1)(A); (3) must expeditiously remove any infringing mate-\n rial it becomes aware of on its website, whether through its own\n actual or red flag knowledge or through receipt of a valid takedown\n notice; and (4) must not directly financially benefit from infringing\n material on the website if it has the right and ability to control that\n material. See § 512(c)(1); Vimeo II, 125 F.4th at 413–14; Perfect 10, 488\n F.3d at 1109.\n The safe-harbor set out in § 512(c) is “properly seen as an\n affirmative defense.” Vimeo I, 826 F.3d at 94. Athos acknowledges\n that YouTube is a service provider generally covered by the\n § 512(c) safe-harbor provision. And it does not claim that YouTube\n does not expeditiously remove the specific content for which a cop-\n yright owner sends an effective DMCA takedown request. Instead,\n Athos attacks YouTube’s protection under § 512(c) on two fronts.\n\fUSCA11 Case: 23-13156 Document: 56-1 Date Filed: 01/07/2026 Page: 7 of 29\n\n\n\n\n 23-13156 Opinion of the Court 7\n\n First, Athos maintains that YouTube has actual or red flag\n knowledge of additional infringing material on its website or is oth-\n erwise being willfully blind to such material, and that material is\n not being expeditiously removed. Second, Athos asserts that\n YouTube derives a direct financial benefit from infringing material\n posted to its website while also having the right and ability to con-\n trol that material. Athos’ arguments are in part based on certain\n factual assertions relating to particular technologies and function-\n alities of the YouTube website. Athos believes that these technol-\n ogies and functionalities deliver sufficient knowledge of infringing\n material to YouTube and facilitate an ability to control that mate-\n rial on the site such that YouTube should lose its § 512(c) safe-har-\n bor protection.\n II\n We review a district court’s grant of summary judgment de\n novo, viewing the facts and making inferences in favor of the non-\n moving party. See Smith v. Owens, 848 F.3d 975, 978 (11th Cir. 2017).\n Summary judgment under Rule 56 is appropriate where no mate-\n rial facts are in genuine dispute and one party is entitled to judg-\n ment as a matter of law. See id. An issue of fact is material if it has\n the potential to affect the resolution of the case under the applica-\n ble legal principles. See Harrison v. Culliver, 746 F.3d 1288, 1297–98\n (11th Cir. 2014). And a fact is genuinely in dispute if, taking the\n record as a whole, a rational trier of fact could find in favor of the\n nonmoving party. See id. at 1298.\n\fUSCA11 Case: 23-13156 Document: 56-1 Date Filed: 01/07/2026 Page: 8 of 29\n\n\n\n\n 8 Opinion of the Court 23-13156\n\n Athos challenges only the district court’s grant of YouTube’s\n motion for summary judgment and not the denial of its own mo-\n tion for partial summary judgment. As a result, we set out the facts,\n and draw all reasonable inferences, in favor of Athos. Yet, as we\n explain, some of Athos’ factual assertions are not supported by the\n record.\n III\n We start by describing the specific technologies and func-\n tionalities that are at issue here—what they are, what they do and\n don’t do, and how they do it—before we wade into application of\n § 512(c) of the DMCA. See, e.g., Vimeo II, 125 F.4th at 416 (explain-\n ing Vimeo’s curation and moderation functionalities before evalu-\n ating issues relating to equivalent red flag knowledge and right and\n ability to control). That description is critical because the parties\n characterize the relevant technologies and functionalities differ-\n ently in their briefs.\n Two suites of technologies and functionalities are at issue\n here. The ﬁrst suite encompasses the functionalities surrounding\n YouTube’s moderation and curation of the content on the\n YouTube website, which are relevant to whether YouTube has the\n right and ability to control infringing material. The second suite is\n made up of YouTube’s video-hashing technology as well as the\n multiple video-hash-matching technologies housed within its vari-\n ous copyright management tools.\n\fUSCA11 Case: 23-13156 Document: 56-1 Date Filed: 01/07/2026 Page: 9 of 29\n\n\n\n\n 23-13156 Opinion of the Court 9\n\n A\n The ﬁrst suite of functionalities relates to the ability of\n YouTube to moderate and curate user uploads to its website.\n Athos contends that YouTube exerts substantial amounts of\n “control over the users who upload the infringing material, its us-\n ers in general and the infringing activity on its platform.” Appel-\n lant’s Br. at 48 (citing D.E. 137-3 at 15:1–7, 17:12–25, 79:24–87:25,\n 119:18–24, 120:24–121:04; D.E. 137-6 at 102:25–103:10, 118:17–\n 120:09, 132:08–134:21, 191:11–12; D.E. 137-7 at 53:08–57:20). After\n careful review of Athos’ record citations, there are only two that\n reference YouTube’s ability to control the content on the YouTube\n website. See D.E. 137-6 at 132:08–134:21 (explaining how a user can\n use the Prevent Copies functionality of YouTube’s copyright web\n form to have its system prevent the reupload of exact and near-ex-\n act copies of already removed videos); D.E. 137-7 at 53:08–57:03\n (discussing YouTube’s ability to suggest videos to users and to auto-\n play videos after one video has ﬁnished, and conﬁrming that\n YouTube can take down any page on its website as well as set its\n own policies and procedures for what content can be uploaded and\n viewed).\n These matters are not in dispute. YouTube does not contest\n that its Prevent Copies functionality exists, or that its algorithmic\n video curation can suggest and autoplay other videos available on\n the site, or that it has the general power to remove content from\n the site.\n\fUSCA11 Case: 23-13156 Document: 56-1 Date Filed: 01/07/2026 Page: 10 of 29\n\n\n\n\n 10 Opinion of the Court 23-13156\n\n B\n YouTube currently uses video-hashing technology to create\n an identifying chain of characters, i.e., a hash, for each video up-\n loaded to its website. The video hashes produced by YouTube’s\n technology are used to facilitate video-hash-matching functionali-\n ties available through various copyright management tools that\n YouTube oﬀers to users. See D.E. 137-6 at 144:16–145:08 (explaining\n that there are three diﬀerent copyright management tools oﬀered\n by YouTube to users that rely on some form of hash-matching\n technology: (1) Content ID, (2) the Copyright Match Tool, and (3)\n the Prevent Copies functionality of its copyright web form).\n 1\n The various hash-matching functionalities are each housed\n in diﬀerent copyright management tools, but they all have the com-\n mon capability of comparing a reference video hash to YouTube’s\n video-hash database to produce a list of video-hash matches that\n can then be processed in some other manner. The primary diﬀer-\n ences between the tools for our purposes are the options available\n to the user for determining what, if any, next steps should be taken\n with respect to the list produced by the video-hash-matching pro-\n cess. See D.E. 14-2 (discussing Content ID, which allows the user to\n select from various options, including automatic removal, various\n monetization settings, or tracking of ﬂagged matches); D.E. 136-3\n at 149:14–150:07 (explaining the Prevent Copies functionality,\n which can prevent the subsequent upload of exact or near-exact\n copies of already removed videos if a user checks the applicable\n\fUSCA11 Case: 23-13156 Document: 56-1 Date Filed: 01/07/2026 Page: 11 of 29\n\n\n\n\n 23-13156 Opinion of the Court 11\n\n box on a submitted copyright web form); D.E. 136-1 at 18–19 (ex-\n plaining the Copyright Match tool, which only presents the user\n with the identiﬁed matches for the user to then submit takedown\n requests for those matches the user believes to be infringing after\n its own review). Only the Prevent Copies functionality is available\n to all users; the other tools’ availability is based on a user’s\n “[d]emonstrated need,” “[a]vailable resources to manage [its] rights\n and content,” and “[k]nowledge of YouTube’s copyright system.”\n D.E. 14-3 at 2. This is due to YouTube’s concerns for “protecting\n against signiﬁcant disruptions that can result from [these function-\n alities’] misuse.” Id.\n YouTube oﬀers its copyright management tools for use by\n users and does not operate any of them automatically itself be-\n cause it is the users, i.e., the copyright owners, who have the best\n knowledge of, and access to, their copyright information. The users\n must decide what each tool should do with an identiﬁed match, as\n it is their underlying copyrights that are being protected. In the case\n of Content ID, the user has broad and precise powers to direct the\n takedown, tracking, or monetization of identiﬁed video-hash\n matches on a region-by-region basis. Without input from a user\n regarding which actions to take in which regions, YouTube has no\n way of administering Content ID on the user’s behalf.\n Notably, with respect to YouTube’s hash-matching technol-\n ogy, it is possible that a video-hash match identiﬁed by the hash-\n matching process is not actually a violation of the underlying cop-\n yright. This can happen, for example, when the use of the\n\fUSCA11 Case: 23-13156 Document: 56-1 Date Filed: 01/07/2026 Page: 12 of 29\n\n\n\n\n 12 Opinion of the Court 23-13156\n\n copyrighted content generating the match constitutes fair use or\n when it is uploaded by the copyright owner, a subsidiary, or a licen-\n see. See D.E. 137-6 at 74:24–25 (testimony of Kevin Zhu, a Content\n ID product manager: “I don’t think the system has the capacity to\n determine potential infringement.”).\n There is no evidence in the record that YouTube has any tool\n capable of performing a legal evaluation to determine whether an\n identiﬁed video-hash match is actually infringing on a given copy-\n right. And the record indicates that YouTube seeks to avoid mass\n removals of legal uses of copyrighted material by its users. As a\n result, none of YouTube’s copyright management tools operate au-\n tomatically without substantial input and management by the cop-\n yright owners, and the most powerful tools are only available to\n qualifying users.\n YouTube oﬀered Athos the use of its various copyright man-\n agement tools, including Content ID, but Athos declined the oﬀer\n because it viewed the required user agreement as “monopolistic\n and abusive.” Athos chose instead to hire a law ﬁrm to manually\n locate potential instances of infringement and send individualized\n takedown requests to YouTube. Neither Athos nor its counsel ever\n used Content ID or the Copyright Match tool to assist in the man-\n agement of its copyrights on the YouTube website.\n 2\n According to Athos, the second suite of technologies is\n made up of various functionalities that all fall under the umbrella\n term Content ID. Athos contends this is a system on the YouTube\n\fUSCA11 Case: 23-13156 Document: 56-1 Date Filed: 01/07/2026 Page: 13 of 29\n\n\n\n\n 23-13156 Opinion of the Court 13\n\n website that “automatically generates a digital fingerprint of every\n video” (what Athos refers to as digital or video fingerprints in its\n briefing we refer to as “video hashes”) at the moment it is uploaded\n to the YouTube website. See Appellant’s Br. at 9. Athos asserts that\n this system “mechanically and instantaneously compares the fin-\n gerprint with other fingerprints in the platform for purposes of ob-\n taining matches of material that copyright owners have informed\n YouTube is copyrighted.” Id. Athos maintains that these function-\n alities are run automatically on all videos uploaded to the YouTube\n website. See id. at 9–10. As a result, Athos believes that at the mo-\n ment YouTube receives a takedown request premised on Athos’\n ownership of a given work appearing at a particular location on the\n YouTube website, YouTube’s technologies immediately provide\n YouTube actual or red flag knowledge of additional infringing ma-\n terial in the form of any locatable video-hash matches to the iden-\n tified infringing material. See Oral Argument Audio at 12:00–13:47.\n For this theory, Athos relies exclusively on its interpretation\n of the deposition testimony of YouTube’s representatives. But the\n record taken as a whole (and viewed in Athos’ favor) does not sup-\n port Athos’ characterization of YouTube’s copyright management\n tools. Our review of the record shows that Athos’ factual asser-\n tions rely primarily on unsustainable readings of the deposition of\n Mr. Zhu, a Content ID product manager. 2\n\n\n\n 2 We recognize that Mr. Zhu’s deposition, as well as certain portions of Athos’\n\n brief, were sealed pursuant to the parties’ stipulated protective order. See D.E.\n\fUSCA11 Case: 23-13156 Document: 56-1 Date Filed: 01/07/2026 Page: 14 of 29\n\n\n\n\n 14 Opinion of the Court 23-13156\n\n As an example, in its initial brief Athos says that “[r]emoving\n all existing infringing content as opposed to removing clip by clip,\n whenever a copyright owner identifies a specific URL, could ‘shut\n down the whole site.’” Appellant’s Br. at 11 (citing and quoting\n D.E. 137-6 at 200:10–11). When asked about the technical feasibility\n of taking down all near-exact hash matches of videos identified by\n a URL in a DMCA takedown request, Mr. Zhu stated: “I’m not\n even sure if it’s ultimately feasible to do in a way that makes sense.\n So I think it’s a little difficult to answer the question because nearly\n anything is possible with software. Like, we could shut down the\n whole site, you know, potentially, but that doesn’t mean that\n would be a good thing to do.” D.E. 137-6 at 199:14–200:12. Mr.\n Zhu’s observation offers no support for the factual proposition\n Athos attempts to bolster with it—that YouTube refuses to remove\n infringing material for fear of shutting down the website.\n Athos’ other record citations do not allow a reasonable jury\n to find that “YouTube automatically compares each [video] finger-\n print to all content in YouTube, as a business policy.” Appellant’s\n Br. at 15 (citing D.E. 137-6 at 103:7–10, 118:17–120:08). For in-\n stance, in response to questions regarding whether any aspects of\n the video upload process on the YouTube website involve human\n interaction by YouTube employees, Mr. Zhu stated: “I don’t think\n I know—so I’m not personally specifically aware of processes\n where a human interacts with a video during that process, but that\n\n\n 60. We quote both carefully to avoid the disclosure of confidential and propri-\n etary information.\n\fUSCA11 Case: 23-13156 Document: 56-1 Date Filed: 01/07/2026 Page: 15 of 29\n\n\n\n\n 23-13156 Opinion of the Court 15\n\n doesn’t necessarily mean it doesn’t exist.” D.E. 137-6 at 120:03–08.\n A fuller review of the second record citation and surrounding con-\n text reveals that, after first clarifying that “there are some condi-\n tions that might determine when exactly would [Content ID] look\n for those [hash-matched] videos after the reference file was pro-\n vided,” and that YouTube requires Content ID partners to upload\n reference files themselves for Content ID to operate, Mr. Zhu ex-\n plained that “[w]hen a video is uploaded . . . a fingerprint is gener-\n ated, and a fingerprint is also generated by Content ID reference\n file, and those fingerprints are compared to each other, as I under-\n stand it.” D.E. 137-6 at 100:10–103:10. At no point did Mr. Zhu\n state that Content ID operates without a reference file being pro-\n vided by the Content ID user. Nor did he suggest that YouTube\n operates Content ID universally or automatically as a business pol-\n icy without any prior input from a Content ID user.\n The record citations that Athos relies on also do not support\n the factual proposition that “[t]he purpose of comparing finger-\n prints is ensuring YouTube locates and flags infringing content.”\n Appellant’s Br. at 16 (citing D.E. 137-6 at 70:17–20, 146:12–147:03).\n Mr. Zhu’s first cited deposition excerpt directly contradicts the\n proposition Athos asserts. See D.E. 137-6 at 70:17–20 (“The purpose\n of the [hash-matching] tool is to show videos that are potential\n matches and allow the user to decide whether they want to request\n removal of those videos or do something else.”). The second dep-\n osition excerpt does nothing to shore up Athos’ unfounded asser-\n tion; when Mr. Zhu was asked whether he knows if the different\n hash matching copyright management tools YouTube has made\n\fUSCA11 Case: 23-13156 Document: 56-1 Date Filed: 01/07/2026 Page: 16 of 29\n\n\n\n\n 16 Opinion of the Court 23-13156\n\n available to users all rely on the same hashing technology, he gave\n this answer: “I don’t personally know if there are differences or\n what differences there might be . . . I’m not the technical expert in\n the matching technology itself, so it doesn’t necessarily mean there\n aren’t differences.” D.E. 137-6 at 146:12–147:03.\n 3\n In sum, as to curation and moderation technologies, the rec-\n ord reﬂects agreement between the parties that YouTube can algo-\n rithmically suggest and auto-play videos, can remove users and vid-\n eos from the site, and can set its own guidelines for users and up-\n loaded content on the site.\n With respect to the hashing technologies, the record does\n not support Athos’ factual assertions. YouTube does not run Con-\n tent ID (or any of its other copyright management tools) automat-\n ically or universally for all videos uploaded to the YouTube website.\n Athos, moreover, has oﬀered no evidence that any of YouTube’s\n video-hash-matching or other tools have any functionality to per-\n form a legal analysis of whether an identiﬁed video-hash match\n constitutes copyright infringement. In fact, YouTube has pre-\n sented unrebutted evidence that all of its copyright management\n tools were designed with user input and management in mind be-\n cause it would be unfeasible for YouTube to operate the tools by\n itself without such input. Athos simply has not identiﬁed any ma-\n terial facts in dispute.\n\fUSCA11 Case: 23-13156 Document: 56-1 Date Filed: 01/07/2026 Page: 17 of 29\n\n\n\n\n 23-13156 Opinion of the Court 17\n\n III\n According to Athos, once it notiﬁes YouTube of its owner-\n ship of a given copyright and identiﬁes a single location (e.g., a\n URL) where the copyrighted material appears on the YouTube\n website, YouTube then has a video hash suﬃcient for it to locate\n additional infringing material on the site. Athos argues that this\n conﬂuence of technologies generates actual or red ﬂag knowledge\n of infringement that should result in YouTube being required to\n remove any match generated by the hash-matching technologies\n or otherwise risk losing its safe-harbor protection under § 512(c) of\n the DMCA. Athos is in eﬀect demanding that YouTube be required\n to administer the operation of its copyright management tools in a\n way that it never has before and in a manner that it did not design\n them for, on behalf of and without any input from a user other\n than a single DMCA takedown request.\n Athos challenges the district court’s reliance on Second and\n Ninth Circuit cases considering equivalent issues—Viacom Int’l, Inc.\n v. YouTube, Inc., 676 F.3d 19 (2d Cir. 2012), and UMG Recordings, Inc.\n v. Shelter Cap. Partners LLC, 718 F.3d 1006 (9th Cir. 2013)—because\n it contends that the approach in these cases “disproportionately\n protects service providers, disincentivizes the creation of creative\n work and diminishes the value of obtaining copyright protection.”\n Appellant’s Br. at 27. We are not persuaded.\n A\n The safe-harbor provision set out in § 512(c) encompasses\n both an actual knowledge standard and what has become known\n\fUSCA11 Case: 23-13156 Document: 56-1 Date Filed: 01/07/2026 Page: 18 of 29\n\n\n\n\n 18 Opinion of the Court 23-13156\n\n as a red flag knowledge standard. See § 512(c)(1)(A)(i)–(ii). “[T]he\n actual knowledge provision turns on whether the provider actually\n or ‘subjectively’ knew of speciﬁc infringement[.]” Viacom, 676 F.3d\n at 31. The “red ﬂag provision turns on whether the provider was\n subjectively aware of facts that would have made the speciﬁc in-\n fringement ‘objectively’ obvious to a reasonable person.” Id.\n The Second Circuit in Viacom concluded that the removal\n obligation in § 512(c)(1)(A)(ii) requires more than a vague\n knowledge and awareness by a service provider of the general ex-\n istence of infringing material on its website for the provider to lose\n safe-harbor protection—the provider must also have not acted “ex-\n peditiously to remove, or disable access to, the material[.]”\n § 512(c)(1)(C). The Second Circuit reasoned that the basic opera-\n tion of § 512(c) “contemplates knowledge or awareness of speciﬁc\n infringing material, because expeditious removal is possible only if\n the service provider knows with particularity which items to re-\n move.” 676 F.3d at 30. The speciﬁcity requirement therefore ap-\n plies with equal force to red ﬂag knowledge under the DMCA. See\n id. at 31. As a result, any alleged actual or red ﬂag knowledge would\n need to relate to speciﬁc instances of infringement to trigger\n YouTube’s obligation to expeditiously remove the content.\n The Ninth Circuit came to the same conclusion in UMG, 718\n F.3d at 1022. It held “that merely hosting a category of copyright-\n able content, such as music videos, with the general knowledge\n that one’s services could be used to share infringing material, is in-\n sufficient to meet” either the actual or red flag knowledge\n\fUSCA11 Case: 23-13156 Document: 56-1 Date Filed: 01/07/2026 Page: 19 of 29\n\n\n\n\n 23-13156 Opinion of the Court 19\n\n standards in § 512(c)(1)(A). See id. at 1022–23. The service provider\n in that case did not lose safe-harbor protection because it\n “promptly removed infringing material when it became aware of\n specific instances of infringement.” Id. at 1023.\n 1\n Under Viacom and UMG, YouTube is entitled to safe-harbor\n protection under § 512(c) because Athos agrees that it expeditiously\n removes infringing material identiﬁed in a takedown request. But\n this approach to the speciﬁcity standard applicable to red ﬂag\n knowledge has been questioned by a leading copyright treatise. See\n 4 Nimmer on Copyright § 12B.04[A][1][b][ii] at 12B-58–59 (assert-\n ing that Viacom and UMG present an incorrect approach to red ﬂag\n knowledge). According to Nimmer, “the ‘actual knowledge’ prong\n is reasonably construed to refer to speciﬁcs, whereas the ‘red ﬂag’\n prong deals with generalities.” Id. Nimmer asserts that “to show\n that a ‘red flag’ disqualifies defendant from the safe harbor, the cop-\n yright owner must simply show that ‘infringing activity’ is appar-\n ent—pointedly, not ‘the infringing activity’ alleged in the com-\n plaint.” Id. at 12B-58. On Nimmer’s reading of § 512(c), a service\n provider’s CEO indicating awareness of a news article reporting on\n its website being a general den of infringing activity may be suffi-\n cient to establish a triable issue of fact with respect to red flag\n knowledge. See id. at 12B-59. See also 1 Raymond T. Nimmer, In-\n formation Law § 4:78.30 (Nov. 2024 update) (“[A]rguably, [red flag\n knowledge] is a looser standard.”).\n\fUSCA11 Case: 23-13156 Document: 56-1 Date Filed: 01/07/2026 Page: 20 of 29\n\n\n\n\n 20 Opinion of the Court 23-13156\n\n Nimmer’s critique centers on the textual differences be-\n tween § 512(c)(1)(A)(i), the actual knowledge provision, and\n § 512(c)(1)(A)(ii), the red flag knowledge provision. Specifically,\n Nimmer focuses on the phrases “the material” and “is infringing”\n in subsection (i), which do not appear in subsection (ii), to conclude\n that red flag knowledge “deals with generalities” in a way that sub-\n section (i) does not. See 4 Nimmer on Copyright\n § 12B.04[A][1][b][ii] at 12B-59. Nimmer also cites to the legislative\n history of the DMCA, which explains that “[t]he important in-\n tended objective of [the red ﬂag] standard is to exclude sophisti-\n cated ‘pirate’ directories—which refer Internet users to other se-\n lected Internet sites where pirate software, books, movies, and mu-\n sic can be downloaded or transmitted—from the safe harbor” to\n bolster his conclusion that “[i]t would hardly nullify the safe harbor\n to determine that it is lost when a site caters to a clientele devoted\n to violating the law.” Id. at 12B-57–58 & n.61 (quoting S. Rep. No.\n 105-190, at 48).\n As set out below, we have two questions about Nimmer’s\n interpretation of the red-flag-knowledge provision but ultimately\n conclude that we need not resolve them to decide this case. Nev-\n ertheless, to provide a full explanation we set out our thoughts\n about the Nimmer view.\n First, we think it noteworthy that the examples Nimmer\n uses specifically concern an internet service provider offering direc-\n tory services, i.e., services aggregating an array of links to various\n other websites for their users to more easily locate and visit\n\fUSCA11 Case: 23-13156 Document: 56-1 Date Filed: 01/07/2026 Page: 21 of 29\n\n\n\n\n 23-13156 Opinion of the Court 21\n\n directly. But the service providers in Viacom and UMG, like\n YouTube here, offer only video hosting services. Although\n YouTube users may use the comment functionality on its website\n to post links to offsite content on the YouTube website that an-\n other user could access, YouTube does not gather, review, and\n then offer a directory of these links to its users as contemplated by\n the Senate Report and Nimmer examples. See generally In re sub-\n poena of Internet Subscribers of Cox Commc’ns, LLC, 148 F.4th 1056,\n 1067 (9th Cir. 2025) (“The plain text of § 512 indicates that the safe\n harbor for which a service provider qualifies depends on the func-\n tion the service provider performed with respect to the infringe-\n ment at issue.”).\n Second, the language of § 512(c)(1)(A)(iii) incorporates both\n the actual knowledge and red flag knowledge standards and as-\n sumes either is sufficient to require removal of “the material” so\n that a service provider may still retain safe-harbor protection. Nim-\n mer’s view may be correct in the context of web directories, where\n a website exclusively dedicated to content piracy might openly ad-\n vertise itself as such so conspicuously as to necessitate expeditious\n removal from the directory without requiring knowledge of a spe-\n cific example of confirmed infringement on the website. But that\n view is not necessarily accurate in the context of a single website\n dedicated to video hosting services.\n For a video hosting service like YouTube, if general\n knowledge that the service is being used to occasionally achieve\n infringement were sufficient to require expeditious removal of all\n\fUSCA11 Case: 23-13156 Document: 56-1 Date Filed: 01/07/2026 Page: 22 of 29\n\n\n\n\n 22 Opinion of the Court 23-13156\n\n infringing activity, the service provider would then be left to scour\n its website for all instances of potential infringement in the hopes\n of retaining its safe-harbor protection. Even after such scouring,\n the service provider would still be left not knowing whether it had\n removed enough material (or the right material) to secure safe-har-\n bor protection through subsection (iii). This is the sort of self-mon-\n itoring process that the DMCA emphatically does not require of\n service providers. See § 512(m)(1) (stating that safe-harbor protec-\n tion is not conditioned on “a service provider monitoring its service\n or affirmatively seeking facts indicating infringing activity”); In re\n Aimster Copyright Litig., 334 F.3d 643, 655 (7th Cir. 2003) (“The com-\n mon element of [the] safe harbors is that the service provider must\n do what it can reasonably be asked to do to prevent the use of its\n service by ‘repeat infringers.’”). Cf. EMI Christian Music Group, Inc.\n v. MP3tunes, LLC, 844 F.3d 79, 91 (2d Cir. 2016) (“Based on the avail-\n able evidence, a reasonable jury could have concluded that it was\n reasonable for MP3tunes to track users who repeatedly created\n links to infringing content in the sideload.com index or who copied\n files from those links. . . . [D]oing so would not require MP3tunes\n to ‘monitor’ or ‘affirmatively seek facts’ about infringing activity in\n a manner inconsistent with § 512(m)(1) because it already had ade-\n quate information at its disposal in the form of takedown notices\n provided by EMI as to which links were allegedly infringing.”) (ci-\n tations omitted).\n Importantly for this case, Nimmer also notes that “[e]ven if\n [a service provider] receives tens of thousands [of] notifications as\n to particulars within [a website hosted on the service], all it must\n\fUSCA11 Case: 23-13156 Document: 56-1 Date Filed: 01/07/2026 Page: 23 of 29\n\n\n\n\n 23-13156 Opinion of the Court 23\n\n do is to disable access to those precise items named in the umpteen\n notifications.” 4 Nimmer on Copyright § 12B.04[A][1][d] at 12B-82.\n So the simple accumulation of adequately-addressed DMCA\n takedown requests alone cannot amount to red flag knowledge of\n other infringing activity which precludes safe-harbor protection.\n See id. And “the copyright owner cannot short-circuit the notifica-\n tion procedure through a blanket notification;” the DMCA consid-\n ers such an attempt a failed notification “and therefore counts it as\n of no effect.” Id. at 12B-82–83. Because Athos bases its red flag\n knowledge argument on the volume of DMCA takedown requests\n it has submitted to YouTube, and on YouTube’s refusal to remove\n additional content not noticed in those takedown requests, see Ap-\n pellant’s Br. at 19–20, Nimmer’s criticism of Viacom and UMG has\n no effect on our resolution of the red flag knowledge issue in this\n case.\n 2\n Athos suggests that YouTube’s video-hash-matching tech-\n nology was “built to provide actual knowledge of infringement[.]”\n Appellant’s Br. at 18. But Athos has not advanced any evidence\n that YouTube has actual knowledge of any infringing material that\n it does not expeditiously remove. Indeed, Athos appears to con-\n cede that YouTube only gains actual knowledge of specific infringe-\n ment once it receives a takedown request identifying the exact lo-\n cation of particular infringing material. See Appellant’s Br. at 18\n (“YouTube does not remove the clips once it becomes aware of the\n red flag from which infringing activity is apparent; but rather, waits\n until it receives ‘actual knowledge’ in the form of another\n\fUSCA11 Case: 23-13156 Document: 56-1 Date Filed: 01/07/2026 Page: 24 of 29\n\n\n\n\n 24 Opinion of the Court 23-13156\n\n takedown request.”). We conclude that Athos has not offered any\n evidence that YouTube ever had actual knowledge of infringement\n that was not being removed from the site because the parties agree\n that YouTube expeditiously removes specific videos identified by\n URL in a DMCA takedown request. See id. at 20 (“YouTube chose\n to remove only the URL of the clip of which it had actual\n knowledge.”).\n The record reflects that the copyright management tools\n could not have provided YouTube with actual knowledge because\n they were never used in the manner Athos suggests. As discussed\n earlier, Athos has not presented evidence that any of the video-\n hash-matching tools it argues were designed to provide actual\n knowledge are operated automatically or universally by YouTube.\n Even if it had made such a showing, the video-hash matches gen-\n erated by YouTube’s technologies, as we understand them from\n this record, cannot give YouTube actual knowledge of infringing\n material because the tools do not perform any analysis to deter-\n mine whether the hash matches they generate are legally infringing\n or not.3\n Without any kind of additional analysis being performed by\n the copyright management tools or YouTube employees,\n YouTube cannot have “actually or ‘subjectively’ [known] of spe-\n ciﬁc infringement,” because the tools at most produce lists of\n\n 3 Given the record in this case, we express no views on the application of\n\n § 512(c) in a case where a service provider has different functionalities and\n technologies.\n\fUSCA11 Case: 23-13156 Document: 56-1 Date Filed: 01/07/2026 Page: 25 of 29\n\n\n\n\n 23-13156 Opinion of the Court 25\n\n possible infringement. See Viacom, 676 F.3d at 31. See also BWP Me-\n dia USA, Inc. v. Clarity Digit. Grp., LLC, 820 F.3d 1175, 1181 (10th Cir.\n 2016) (explaining that “if the infringing content has merely gone\n through a screening or automated process, the [internet service\n provider] will generally beneﬁt from the safe harbor’s protection”).\n To require YouTube to not only run its copyright management\n tools in the manner Athos suggests, but to then analyze the fruits\n of those tools to locate other instances of infringement, would\n amount to requiring YouTube to “affirmatively [seek] facts indicat-\n ing infringing activity,” in direct contravention of the balance es-\n tablished by Congress in the DMCA. See § 512(m)(1). Athos has\n not shown that YouTube failed to expeditiously remove any in-\n fringing material it had actual knowledge of.\n 3\n Athos maintains that, because of its understanding of\n YouTube’s technologies, a takedown request regarding specific in-\n fringement of a given work inherently necessitates removal of mul-\n tiple other instances of that work appearing in any non-noticed vid-\n eos on the YouTube platform. See Oral Argument Audio at 12:00–\n 13:47. This is not a plausible or workable reading of the DMCA.\n Nor, as discussed earlier, is this theory rooted in a correct under-\n standing of how the technologies and functionalities at issue actu-\n ally work. Again, YouTube does not operate any of its copyright\n management tools universally or automatically in the manner\n Athos asserts.\n\fUSCA11 Case: 23-13156 Document: 56-1 Date Filed: 01/07/2026 Page: 26 of 29\n\n\n\n\n 26 Opinion of the Court 23-13156\n\n In response to the many takedown requests from Athos,\n YouTube “fully meets its obligations under the safe harbor by re-\n moving the precise material noticed.” 4 Nimmer on Copyright\n § 12B.04 [A][1][d] at 12B-82. Because Athos offers no evidence\n other than the accumulation of its takedown requests, which it\n concedes YouTube has adequately responded to by removing the\n specific infringing videos identified, see Appellant’s Br. at 19–20, its\n red flag knowledge argument fails. See Capitol Records, Inc, v.\n MP3tunes, LLC, 821 F. Supp. 2d 627, 644 (S.D.N.Y. 2011) (“[T]he\n DMCA does not place the burden of investigation on the internet\n service provider. . . . [I]f investigation is required to determine\n whether material is infringing, then those facts and circumstances\n are not ‘red flags.’”) (citing § 512(m)(1)).\n 4\n Athos’ final argument with respect to knowledge relates to\n willful blindness. Athos contends that, because of its technologies\n and functionalities, YouTube behaves in a way that amounts to in-\n tentional avoidance of actual or red flag knowledge of infringing\n material on the YouTube website. This argument is also uncon-\n vincing.\n “[W]illful blindness is a form of constructive knowledge for\n contributory trademark infringement.” Luxottica Grp., S.p.A. v. Air-\n port Mini Mall, LLC, 932 F.3d 1303, 1313 (11th Cir. 2019). “Willful\n blindness occurs when a person suspects wrongdoing and deliber-\n ately fail[s] to investigate.” Id. (internal quotation marks and cita-\n tion omitted). We agree with the Second Circuit that, because its\n\fUSCA11 Case: 23-13156 Document: 56-1 Date Filed: 01/07/2026 Page: 27 of 29\n\n\n\n\n 23-13156 Opinion of the Court 27\n\n application is limited but not abrogated by § 512(m)(1), the “willful\n blindness doctrine may be applied, in appropriate circumstances,\n to demonstrate knowledge or awareness of specific instances of in-\n fringement under the DMCA.” Viacom, 676 F.3d at 35.\n Though a service provider “would not qualify for the safe\n harbor if it had turned a blind eye to ‘red flags’ of obvious infringe-\n ment,” S. Rep. No. 105-190, at 48, YouTube did not act this way\n here. Congress’ focus on the obviously “infringing nature of” ma-\n terial that service providers cannot be willfully blind to reflects the\n intended “common-sense result” that service providers “not be re-\n quired to make discriminating judgments about potential copy-\n right infringement.” Id. at 48–49.\n Like the Second Circuit, “we can see no reason to construe\n [§ 512(c)] as vitiating the protection of § 512(m) and requiring in-\n vestigation merely because the service provider learns facts raising\n a suspicion of infringement (as opposed to facts making infringe-\n ment obvious).” Vimeo I, 826 F.3d at 98 (emphasis in original). Be-\n cause the record reflects that YouTube’s copyright management\n tools are only capable of producing lists of potential infringement,\n those tools are not capable of producing sufficient knowledge to\n establish (or to create an issue of fact on) YouTube’s willful blind-\n ness to any infringing activity here.\n B\n We conclude with the alleged right and ability of YouTube\n to control infringing material it purportedly derives a direct finan-\n cial benefit from. Agreeing with the Second Circuit’s consideration\n\fUSCA11 Case: 23-13156 Document: 56-1 Date Filed: 01/07/2026 Page: 28 of 29\n\n\n\n\n 28 Opinion of the Court 23-13156\n\n of an equivalent issue in Vimeo II, we hold that YouTube’s moder-\n ation and content management features do not constitute a right\n and ability to control for purposes of the DMCA. We therefore do\n not address whether YouTube receives a direct financial benefit\n from infringing material.\n The right and ability to control “requires ‘something more’\n than the mere ability to remove or block access to materials on [the\n service provider’s] website.” Vimeo II, 125 F.4th at 423. The service\n provider must exert “‘substantial influence’ on user activities” or\n otherwise have “induced the infringing activity.” Id. at 423–24.\n In Vimeo II, the Second Circuit explained that “[c]alling at-\n tention to selected videos by giving them a sign of approval or dis-\n playing them on a Staff Picks channel (or the contrary, by demoting\n them) did not restrict the freedom of users to post whatever videos\n they wished.” Id. at 425. It also concluded that, given the “huge\n number of videos posted by users on Vimeo,” the plaintiffs there\n had failed to show that Vimeo staff had intervened in more than a\n “tiny percentage.” Id. In its view, “denial of eligibility for the safe\n harbor based on such noncoercive exercises of control over only a\n small percentage of postings would undermine, rather than carry\n out, Congress’[ ] purposes in establishing the safe harbor.” Id. at\n 426.\n We agree with the Second Circuit, and conclude that the\n same reasoning applies here, where the record reflects only that\n YouTube can remove material and users from its website, can pro-\n mote and auto-play select videos algorithmically, and can set\n\fUSCA11 Case: 23-13156 Document: 56-1 Date Filed: 01/07/2026 Page: 29 of 29\n\n\n\n\n 23-13156 Opinion of the Court 29\n\n policies for content moderation on the site. The record contains\n no evidence that YouTube exercises control over any more sub-\n stantial a portion of the YouTube website than did Vimeo in Vimeo\n II.\n None of the identified “noncoercive exercises of control” on\n the part of YouTube amount to substantial influence over user ac-\n tivity sufficient to establish it had the right and ability to control\n any infringing material at issue in this case. See id. “To interpret\n this provision as [Athos] argue[s]—to deny [YouTube] access to the\n safe harbor merely because of the tiny influences it exercised—\n would subject [YouTube] to a huge expense in monitoring millions\n of posts to protect itself against the possibility of liability for in-\n fringements.” Id. at 426–27. Athos’ approach would have us upset\n the balance between copyright owners and service providers struck\n by Congress in the DMCA. If that balance is to be recalibrated, it\n is a matter for Congress.\n IV\n Aside from specific takedown requests, YouTube’s technol-\n ogies and functionalities do not produce actual or red flag\n knowledge of specific infringing material. YouTube, moreover,\n does not exercise the right and ability to control any of the material\n on its site for purposes of the DMCA. As a result, YouTube is en-\n titled to § 512(c)’s safe-harbor protection. The district court’s sum-\n mary judgment order in favor of YouTube is affirmed.\n AFFIRMED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11237162/", "author_raw": "JORDAN, Circuit Judge:"}]}	WILLIAM PRYOR	JORDAN	MARCUS	1		{"WILLIAM PRYOR": ", Chief", "JORDAN": ", Cir cuit", "MARCUS": ", Cir cuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10770577/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,772,568	Lisa Baker v. City of Atlanta	2026-01-09	23-12469	U.S. Court of Appeals for the Eleventh Circuit	{"judges": "Before NEWSOM, BRANCH, and LUCK, Circuit Judges.", "parties": "", "opinions": [{"author": "BRANCH, Circuit Judge:", "type": "010combined", "text": "USCA11 Case: 23-12469 Document: 80-1 Date Filed: 01/09/2026 Page: 1 of 36\n\n\n\n\n FOR PUBLICATION\n\n\n In the\n United States Court of Appeals\n For the Eleventh Circuit\n ____________________\n No. 23-12469\n ____________________\n\n LISA BAKER,\n JACQUELINE DOUGHERTY,\n KEYANNA JONES,\n AMELIA WELTNER,\n Plaintiﬀs-Appellees,\n versus\n\n CITY OF ATLANTA,\n Defendant-Appellant,\n STATE OF GEORGIA,\n Defendant.\n ____________________\n Appeal from the United States District Court\n for the Northern District of Georgia\n D.C. Docket No. 1:23-cv-02999-MHC\n ____________________\n\nUSCA11 Case: 23-12469 Document: 80-1 Date Filed: 01/09/2026 Page: 2 of 36\n\n\n\n\n 2 Opinion of the Court 23-12469\n\n Before NEWSOM, BRANCH, and LUCK, Circuit Judges.\n BRANCH, Circuit Judge:\n Appellees Lisa Baker, Jacqueline Dougherty, Keyanna Jones,\n and Amelia Weltner, live in DeKalb County, outside the city limits\n of Atlanta (“the City”). They desire to collect signatures inside the\n City as part of a local referendum petition aimed at repealing a city\n ordinance that authorized the lease of land owned by the City in\n Dekalb County to the Atlanta Police Federation for the\n construction of a new training facility. However, the Appellees’\n residency posed a barrier to their signature collection efforts\n because § 66-37(b) of the City of Atlanta Municipal Code imposes\n a requirement that signature gatherers for local referendum\n petitions be residents of the City. Thus, they filed a complaint\n against the City challenging the constitutionality of the signature\n gatherer residency requirement, arguing that it violated their First\n Amendment rights. They also sought a preliminary injunction.\n The district court granted the motion for a preliminary\n injunction and enjoined the City from enforcing the portion of\n § 66-37(b) that requires that the person collecting signatures be a\n resident of the City. The district court also ordered that the 60-day\n period for collecting signatures would restart upon the City’s\n issuance of new petitions that removed the requirement that the\n person collecting signatures be an Atlanta resident and ordered that\n all signatures collected previously would still be counted.\n The City appealed and obtained a stay of the injunction.\n After review and with the benefit of oral argument, we conclude\n\nUSCA11 Case: 23-12469 Document: 80-1 Date Filed: 01/09/2026 Page: 3 of 36\n\n\n\n\n 23-12469 Opinion of the Court 3\n\n that the plaintiffs cannot show irreparable harm because, under\n Kemp v. City of Claxton, 496 S.E.2d 712 (Ga. 1998), they cannot use a\n referendum petition to challenge a city ordinance. In other words,\n they have no right to the petition process they seek to utilize;\n accordingly, they cannot show irreparable harm as required for\n injunctive relief. Therefore, we vacate the injunction and remand\n for further proceedings.\n I. Background\n In 2021, the City of Atlanta adopted ordinance 21-O-0367\n which authorized then-Mayor Keisha Lance Bottoms to lease land\n owned by the City in DeKalb County to the Atlanta Police\n Federation for the construction of a new public safety training\n facility (“the leasing ordinance”). The Mayor executed a lease\n agreement, and the City Council dedicated significant funds\n toward the project. Construction on the new facility is now\n substantially complete.\n In June 2023, a group of individuals and organizations (the\n “coalition”) filed a referendum petition with the Municipal Clerk\n of the City of Atlanta, seeking to repeal the leasing ordinance and\n prevent construction of the facility. Initially, the municipal clerk\n rejected the coalition’s referendum petition “as to form” because\n the draft provided did not include the required section for the\n signature gatherer to provide his name and contact information\n and attest that he was a resident of Atlanta and that the signatures\n on the petition were collected within the city of Atlanta. The\n coalition submitted a revised petition. The municipal clerk\n\nUSCA11 Case: 23-12469 Document: 80-1 Date Filed: 01/09/2026 Page: 4 of 36\n\n\n\n\n 4 Opinion of the Court 23-12469\n\n ultimately “approve[d] [the petition] as to form” and issued official\n copies of the petition for use in collecting signatures on June 21,\n 2023. 1 The petition included a section for signers of the petition to\n swear they were City of Atlanta residents and registered voters in\n the last municipal election and provide their signature, printed\n name, date, address, phone number, and birthdate. And the\n signature gatherers had to swear that they were a registered elector\n in the City of Atlanta (i.e., a City resident) and that the signatures\n were collected within the boundaries of the City.\n Pursuant to § 66-37 of the City of Atlanta Municipal Code,\n which governed the coalition’s petition efforts, upon the issuance\n of the approved petition by the municipal clerk on June 21, 2023,\n the coalition had 60 days to collect approximately 70,000\n signatures. See City of Atlanta, Ga. Code of Ordinances § 66-37(b).\n Because the requirements of § 66-37 of the Municipal Code\n are at issue in this case, it is necessary to first examine the language\n of that section of the code before continuing with the procedural\n history of the case. That section provides as follows:\n (a) Whenever 15 percent of the registered voters,\n as disclosed by registration lists of the last preceding\n general municipal election, shall request, in a petition\n ﬁled with the municipal clerk, amendments to the\n Charter or amendments to or repeals of ordinances\n\n\n 1 The municipal clerk noted, when approving the petition, that “this approval\n\n as to form does not reflect any judgment or agreement by anyone at the City\n as to the lawfulness or substantive validity of the petition itself.”\n\nUSCA11 Case: 23-12469 Document: 80-1 Date Filed: 01/09/2026 Page: 5 of 36\n\n\n\n\n 23-12469 Opinion of the Court 5\n\n or resolutions which may have already been adopted\n by the council, the amendments or repeals shall\n thereafter be submitted to the qualiﬁed voters of the\n city. Such petition shall speciﬁcally set forth the exact\n language of the proposed amendment or repeal. The\n council shall determine the validity of such petition\n within 50 days of its ﬁling. If such petition is\n determined valid, within one week the council shall\n issue the call for a special election for the purpose of\n submitting such amendment or repeal to the\n registered electors of the city for their approval or\n rejection. The council shall set the date of the special\n election as provided in O.C.G.A. § 21-3-53. The\n council shall cause a notice of the date of the election\n to be published in a newspaper of general circulation\n once a week for two weeks immediately preceding\n such date. The voting on questions submitted to the\n people at the special election provided for in this\n section in what is known as the initiative and\n referendum shall be held in the same manner as the\n general election, under the same methods, and the\n result thereof shall be canvassed in the same manner\n and declared and reported to the council for\n conﬁrmation. If the majority of the votes are cast\n against the ordinance or resolution, it shall be thereby\n repealed and revoked and shall not thereafter be of\n any eﬀect nor shall it thereafter be adopted by the\n council until resubmitted to and adopted by the\n qualiﬁed voters of the city in the same manner as\n originally submitted. If a majority of the votes are\n cast in the aﬃrmative, the ordinance or resolution\n\nUSCA11 Case: 23-12469 Document: 80-1 Date Filed: 01/09/2026 Page: 6 of 36\n\n\n\n\n 6 Opinion of the Court 23-12469\n\n shall stand and be eﬀective in the same manner as\n other ordinances or resolutions of the city. If the\n council determines that the petition is not valid, it\n shall publish in detail, in a newspaper of general\n circulation in the week immediately following the\n date on which the petition is declared to be not valid,\n the reasons why such petition is not valid.\n\n (b) The sponsor of a petition authorized by this\n section shall obtain copies of all oﬃcial petitions from\n the municipal clerk. The municipal clerk shall\n approve all petitions as to form. The municipal clerk\n shall provide a place on each form for the person\n collecting signatures to provide such person’s name,\n street address, city, county, state, ZIP code and\n telephone number and to swear that such person is a\n resident of the city and that the signatures were\n collected inside the boundaries of the city. The\n collection of signatures for the petition shall begin on\n the day the municipal clerk provides oﬃcial copies to\n the sponsor of the petition. A petition authorized by\n this section shall not be accepted by the council for\n veriﬁcation if more than 60 days have elapsed since\n the date the sponsor of the petition ﬁrst obtained\n copies of the petition from the municipal clerk.\n\n (c) The council shall be authorized to submit to\n the qualiﬁed voters of the city at any election any\n ordinance or resolution which it may deem proper. If\n a majority of voters shall vote for this ordinance or\n resolution, it shall be adopted. If a majority of the\n votes so cast are against the resolution or ordinance,\n\nUSCA11 Case: 23-12469 Document: 80-1 Date Filed: 01/09/2026 Page: 7 of 36\n\n\n\n\n 23-12469 Opinion of the Court 7\n\n it shall be defeated and shall not thereafter be adopted\n by the council until resubmitted to and adopted by\n the qualiﬁed voters of the city. If it receives a majority\n vote of the people and becomes eﬀective, it can only\n be repealed by a majority vote of the qualiﬁed voters\n at a special election. . . .\n\n City of Atlanta, Ga. Code of Ordinances § 66-37.\n Municipal Ordinance 66-37 is derived from—and is virtually\n identical to—Georgia’s Home Rule for Municipalities Act,\n O.C.G.A. § 36-35-3 (“Home Rule Act”). The Home Rule Act\n provides, in relevant part, as follows:\n (a) The governing authority of each municipal\n corporation shall have legislative power to adopt\n clearly reasonable ordinances, resolutions, or\n regulations relating to its property, aﬀairs, and local\n government for which no provision has been made by\n general law and which are not inconsistent with the\n Constitution or any charter provision applicable\n thereto. Any such charter provision shall remain in\n force and eﬀect until amended or repealed as\n provided in subsection (b) of this Code section. . . .\n\n (b) Except as provided in Code Section 36-35-6, a\n municipal corporation may, as an incident of its home\n rule power, amend its charter by following either of\n the following procedures:\n ....\n (2)(A) Amendments to charters or\n\nUSCA11 Case: 23-12469 Document: 80-1 Date Filed: 01/09/2026 Page: 8 of 36\n\n\n\n\n 8 Opinion of the Court 23-12469\n\n amendments to or repeals of ordinances,\n resolutions, or regulations adopted pursuant to\n subsection (a) of this Code section may be\n initiated by a petition, filed with the governing\n authority of the municipal corporation,\n containing, [a certain percentage of signatures\n based on the relevant population of the\n municipality]. . . .\n (C) The sponsor of a petition authorized by\n this paragraph shall obtain copies of all official\n petitions from the clerk of the governing\n authority. The clerk of the governing\n authority shall approve all petitions as to form.\n The clerk of the governing authority shall provide a\n place on each form for the person collecting\n signatures to provide his or her name, street\n address, city, county, state, ZIP Code, and\n telephone number and to swear that he or she is a\n resident of the municipality affected by the petition\n and that the signatures were collected inside\n the boundaries of the affected municipality.\n The collection of signatures for the petition\n shall begin on the day the clerk of the\n governing authority provides official copies to\n the sponsor of the petition. A petition\n authorized by subparagraph (A) of this\n paragraph shall not be accepted by the\n governing authority for verification if more\n than 60 days have elapsed since the date the\n sponsor of the petition first obtained copies of\n\nUSCA11 Case: 23-12469 Document: 80-1 Date Filed: 01/09/2026 Page: 9 of 36\n\n\n\n\n 23-12469 Opinion of the Court 9\n\n the petition from the clerk of the governing\n authority.\n O.C.G.A. § 36-35-3 (emphasis added).\n With these statutes in mind, we turn back to the events\n giving rise to the present case. Appellees Baker, Dougherty, Jones,\n and Weltner live in DeKalb County—outside the city limits of\n Atlanta but near the proposed training facility—and they oppose\n the construction of the training facility and desire to assist with\n signature collection for the referendum petition. 2 However,\n because of § 66-37(b)’s residency requirement for signature\n gatherers, they were unable to collect signatures. Therefore, on\n July 6, 2023, they filed a complaint, along with a motion for a\n preliminary injunction, against the City 3 challenging the\n constitutionality of § 66-37(b)’s requirement that signature\n gatherers be residents of the City, arguing that it violated their First\n Amendment rights because it prevented them from collecting\n signatures for the referendum petition. Accordingly, they\n requested (1) a declaration that the signature gatherer residency\n requirement in § 66-37(b) violates the First Amendment on its face\n and as applied; (2) a preliminary and permanent injunction\n prohibiting the City from enforcing the residency requirement in\n\n 2 No one disputes that these individuals are not the petition’s sponsors or\n\n members of the coalition.\n 3 Initially, the State of Georgia was also a named defendant, but the State\n\n asserted that it was immune from suit pursuant to the Eleventh Amendment\n and that it did not consent to jurisdiction. Thereafter, the plaintiffs filed a\n motion to dismiss the State as a party, which the district court granted.\n\nUSCA11 Case: 23-12469 Document: 80-1 Date Filed: 01/09/2026 Page: 10 of 36\n\n\n\n\n 10 Opinion of the Court 23-12469\n\n § 66-37(b); 4 (3) a preliminary injunction requiring the City to issue\n new referendum petitions without the signature gatherer\n residency restriction; (4) a preliminary injunction that restarted the\n 60-day period for collecting signatures upon the issuance of the\n court’s order with the provision that all existing previously\n collected signatures be counted; and (5) attorney’s fees.\n The City opposed the request for injunctive relief, arguing\n that the plaintiffs did not satisfy the four necessary requirements\n for obtaining a preliminary injunction. First, it argued that there\n was not a substantial likelihood of success on the merits because\n § 66-37(b)’s residency requirement did not infringe on a\n nonresident’s political speech and was therefore not subject to\n strict scrutiny. Second, the City argued that the proposed\n referendum was invalid because, among other reasons, in Kemp v.\n City of Claxton, 496 S.E.2d 712 (Ga. 1998), the Supreme Court of\n Georgia held that O.C.G.A. § 36-35-3(b)(2), from which § 66-37(b)\n derives, can be used only to amend city charters and does not apply\n to city ordinances. Third, the City argued that its interest in\n ensuring the “integrity of its political process” outweighed the\n plaintiffs’ alleged injury. And finally, the City argued that, if the\n residency requirement was unconstitutional, the appropriate\n remedy was to strike down the ordinance in its entirety and enjoin\n\n\n\n 4 Section 66-37(b) also imposes a residency requirement for individuals who\n\n sign the petition. See City of Atlanta, Ga. Code of Ordinances § 66-37(b). That\n requirement was not challenged below and is not at issue in this appeal.\n\nUSCA11 Case: 23-12469 Document: 80-1 Date Filed: 01/09/2026 Page: 11 of 36\n\n\n\n\n 23-12469 Opinion of the Court 11\n\n the entire petition process—not sever portions as the plaintiffs\n requested.\n On July 27, 2023—approximately 35 days into the signature\n collection period—the district court granted the motion for a\n preliminary injunction after applying the traditional four-factor test\n for preliminary injunctive relief. 5 First, the district court found that\n the plaintiffs had shown a substantial likelihood of success on the\n merits. The district court reached this conclusion by first\n determining that § 66-37(b)’s signature gatherer residency\n restriction was subject to strict scrutiny based on the Supreme\n Court’s decisions in Meyer v. Grant, 486 U.S. 414 (1988), and Buckley\n v. American Constitutional Law Foundation, Inc., 525 U.S. 182 (1999),\n as well as decisions from a number of other circuits to have\n considered similar requirements. The district court explained that\n the residency requirement clearly limit[ed] the\n number of persons who [could] promote the\n petition’s message thereby limiting the potential\n number of the City’s residents who [could] receive\n the political message and [made] it less likely that the\n\n\n\n 5 “A district court may grant a preliminary injunction only if the moving party\n\n establishes that: (1) it has a substantial likelihood of success on the merits; (2) it\n will suffer an irreparable injury unless the injunction is granted; (3) the harm\n from the threatened injury outweighs the harm the injunction would cause\n the opposing party; and (4) the injunction would not be adverse to the public\n interest.” Gonzalez v. Governor of Ga., 978 F.3d 1266, 1270–71 (11th Cir. 2020)\n (footnote omitted).\n\nUSCA11 Case: 23-12469 Document: 80-1 Date Filed: 01/09/2026 Page: 12 of 36\n\n\n\n\n 12 Opinion of the Court 23-12469\n\n proponents of the petition [could] gather suﬃcient\n signatures to place the initiative on the ballot.\n\n Therefore, the court concluded that, under Meyer, the residency\n requirement imposed “a severe burden on core political speech”\n and was subject to strict scrutiny.\n The district court then found that the residency requirement\n was not narrowly tailored to serve a compelling governmental\n interest, noting that the City failed to present any argument on this\n point. In reaching this conclusion, the district court rejected the\n City’s argument that the restriction served a legitimate interest of\n restricting the right to participate in the political process only to the\n City’s own residents, explaining that the restriction was not\n narrowly tailored to serve that interest given that “only residents\n can sign petitions and vote in referendum elections.” Accordingly,\n the district court concluded that the plaintiffs had established a\n substantial likelihood of success on the merits for purposes of\n obtaining a preliminary injunction.\n Second, the district court concluded that the plaintiffs had\n established that they would suffer irreparable harm in the absence\n of an injunction because it was well-established that “[t]he loss of\n First Amendment freedoms, for even minimal periods of time,\n unquestionably constitutes irreparable injury.” The district court\n noted the City’s contention that the referendum itself was invalid\n under the Supreme Court of Georgia’s decision in Kemp, but\n concluded that “the issue of the ultimate validity of the proposed\n\nUSCA11 Case: 23-12469 Document: 80-1 Date Filed: 01/09/2026 Page: 13 of 36\n\n\n\n\n 23-12469 Opinion of the Court 13\n\n referendum to [the leasing ordinance] [was] not ripe for decision\n by this [c]ourt.”\n Finally, the district court explained that the remaining two\n preliminary injunction factors—the balance of equities/harm to\n opposing party and the public interest—merged because the\n government was the opposing party. The district court then\n concluded that these factors weighed in favor of the request for\n injunctive relief.\n Consequently, the district court enjoined the City from\n “enforcing the portion of . . . § 66-37(b) that requires the person\n collecting signatures to swear that such person is a resident of the\n City of Atlanta”; ordered the municipal clerk to issue new copies of\n the referendum petition that removed “the requirement that the\n person collecting signatures swear that such person is a resident of\n the City of Atlanta”; and ordered that the 60-day statutory period\n for collecting signatures would restart on the date the new\n referendum petitions were issued, although all valid signatures\n previously collected “shall be counted” along with any new\n signatures collected at the end of the new collection period.\n The City promptly appealed and obtained a stay of the\n injunction from this Court. We later directed the parties to address\n whether they had satisfied the requirements for Article III standing\n and whether the appeal was moot in light of the completion of\n construction on the facility.\n We begin our analysis by addressing the issue of whether\n case is moot. Because we conclude that the case is not moot, we\n\nUSCA11 Case: 23-12469 Document: 80-1 Date Filed: 01/09/2026 Page: 14 of 36\n\n\n\n\n 14 Opinion of the Court 23-12469\n\n then address whether the plaintiffs have Article III standing. Based\n on our conclusion that they have Article III standing, we proceed\n to review the merits of the preliminary injunction.\n II. Discussion\n A. Mootness\n Article III of the Constitution limits our jurisdiction to\n “Cases” and “Controversies.” U.S. Const. art. III, § 2. As a result,\n “we cannot entertain [an] appeal unless an actual dispute continues\n to exist between the parties.” Bourgeois v. Peters, 387 F.3d 1303,\n 1307–08 (11th Cir. 2004). “If events that occur subsequent to the\n filing of a lawsuit or an appeal deprive the court of the ability to\n afford the plaintiff or appellant meaningful relief, then the case\n becomes moot and must be dismissed.” Graham v. Att’y Gen., State\n of Ga., 110 F.4th 1239, 1244 (11th Cir. 2024) (quotations omitted).\n “[M]ootness is a jurisdictional issue that must be resolved at the\n threshold.” Fla. Ass’n of Rehab. Facilities, Inc. v. State of Fla. Dep’t of\n Health & Rehab. Servs., 225 F.3d 1208, 1227 n.14 (11th Cir. 2000).\n We review de novo whether a case is moot. Sheely v. MRI Radiology\n Network, P.A., 505 F.3d 1173, 1182 (11th Cir. 2007).\n The City argues that the case is now moot because\n construction of the facility is substantially complete, and the\n plaintiffs’ goal with the referendum has always been to stop\n construction of the facility, which means there is no meaningful\n relief available. We disagree.\n Although the plaintiffs’ ultimate goal may have been to stop\n the construction of the training facility, it does not follow that there\n\nUSCA11 Case: 23-12469 Document: 80-1 Date Filed: 01/09/2026 Page: 15 of 36\n\n\n\n\n 23-12469 Opinion of the Court 15\n\n is no meaningful relief available to them in this appeal. The\n plaintiffs in this case sought to enjoin the City from enforcing a\n residency requirement for signature gatherers of a referendum\n petition. The referendum petition sought to repeal the ordinance\n that authorized the lease of the land for the facility—an ordinance\n and lease that still exist irrespective of the construction of the\n facility. Thus, despite construction of the facility, the plaintiffs still\n have a concrete interest in this case and there is meaningful relief\n available—if successful in this appeal, they could collect enough\n signatures to send their referendum petition to the ballot and seek\n to repeal the leasing ordinance. See Knox v. Serv. Emps. Int’l Union,\n Local 1000, 567 U.S. 298, 307–08 (2012) (“As long as the parties have\n a concrete interest, however small, in the outcome of the litigation,\n the case is not moot.” (alterations adopted) (quotation omitted)).\n The City argues that the case is moot because repeal of the\n leasing ordinance would not change the status quo and could not\n invalidate the actual lease agreement because of Georgia’s\n constitutional prohibition against the impairment of contracts, but\n this argument confuses the mootness inquiry with the merits. The\n plaintiffs’ ultimate prospects of success and the legal availability of\n certain types of relief are not pertinent to the mootness inquiry.\n See, e.g., MOAC Mall Holdings LLC v. Transform Holdco LLC, 598 U.S.\n 288, 295 (2023) (rejecting argument that case was moot because no\n legal vehicle was available to achieve the ultimate relief sought in\n the suit); Chafin v. Chafin, 568 U.S. 165, 174 (2013) (rejecting a\n party’s argument that the case was moot because the district court\n allegedly lacked the authority to grant the relief requested and\n\nUSCA11 Case: 23-12469 Document: 80-1 Date Filed: 01/09/2026 Page: 16 of 36\n\n\n\n\n 16 Opinion of the Court 23-12469\n\n explaining that the “prospects of success are . . . not pertinent to\n the mootness inquiry”).\n Accordingly, we conclude that the case is not moot for\n purposes of Article III. 6 We now turn to whether the plaintiffs have\n established Article III standing.\n B. Standing\n We have an independent obligation to ensure that we have\n jurisdiction by determining whether the parties have Article III\n standing. See Lewis v. Governor of Ala., 944 F.3d 1287, 1296 (11th Cir.\n 2019) (en banc); see also United States v. Hays, 515 U.S. 737, 742 (1995)\n (“The question of standing is not subject to waiver, [and w]e are\n required to address the issue even if the courts below have not\n passed on it, and even if the parties fail to raise the issue before us.”\n\n\n 6 Alternatively, the City argues that, even if the case is not moot in the\n\n constitutional sense, we should invoke the prudential mootness doctrine.\n Prudential mootness is a discretionary equitable doctrine that is not concerned\n with our Article III powers, and, therefore, is not jurisdictional. Penthouse Int’l,\n Ltd. v. Meese, 939 F.2d 1011, 1019 (D.C. Cir. 1991) (explaining that the\n prudential mootness doctrine “is concerned, not with the court’s power under\n Article III to provide relief, but with the court’s discretion in exercising that\n power”). Under this rarely invoked doctrine, we may exercise our discretion\n and decline to grant relief in the context of a controversy that has become “so\n attenuated that considerations of prudence and comity . . . counsel the court\n to stay its hand, and to withhold relief it has the power to grant.” Chamber of\n Com. v. U.S. Dep’t of Energy, 627 F.2d 289, 291 (D.C. Cir. 1980). We decline to\n invoke this doctrine here because, as explained above, there is a legitimate\n possibility of meaningful relief in this case and there is no reason to stay our\n hand.\n\nUSCA11 Case: 23-12469 Document: 80-1 Date Filed: 01/09/2026 Page: 17 of 36\n\n\n\n\n 23-12469 Opinion of the Court 17\n\n (quotations omitted)). Here, we requested that the parties brief\n standing, and it was extensively discussed at oral argument.\n As discussed previously, Article III of the Constitution limits\n our jurisdiction to “Cases” and “Controversies.” U.S. Const. art.\n III, § 2. The standing doctrine is an essential part of this case-or-\n controversy requirement.\n “[T]o satisfy Article III’s standing requirements, a plaintiff\n must show (1) [she] has suffered an ‘injury in fact’ that is\n (a) concrete and particularized and (b) actual or imminent, not\n conjectural or hypothetical; (2) the injury is fairly traceable to the\n challenged action of the defendant; and (3) it is likely, as opposed\n to merely speculative, that the injury will be redressed by a\n favorable decision.” Lowman v. Fed. Aviation Admin., 83 F.4th 1345,\n 1355 (11th Cir. 2023); see also Lewis, 944 F.3d at 1296 (same).\n “Because standing to sue implicates jurisdiction, a court must\n satisfy itself that the plaintiff has standing before proceeding to\n consider the merits of her claim, no matter how weighty or\n interesting.” Lewis, 944 F.3d at 1296; see also Hays, 515 U.S. at 742\n (explaining that “standing is perhaps the most important of the\n jurisdictional doctrines” and federal courts “are required to address\n [standing] even if the court[] below [has] not passed on it, and even\n if the parties fail to raise the issue . . . . (alterations adopted)\n (quotations omitted)).\n “The burden is on the party seeking to exercise jurisdiction\n to allege and then to prove facts sufficient to support jurisdiction.”\n Pittman v. Cole, 267 F.3d 1269, 1282 (11th Cir. 2001) (quotations\n\nUSCA11 Case: 23-12469 Document: 80-1 Date Filed: 01/09/2026 Page: 18 of 36\n\n\n\n\n 18 Opinion of the Court 23-12469\n\n omitted). When, as here, we are at the early stages of litigation\n where a preliminary injunction is being sought and the issue of\n standing was not raised in the district court, we apply the same\n standard as when standing is raised on a motion to dismiss,\n focusing on the sufficiency of the allegations in the complaint. 7 See\n Church v. City of Huntsville, 30 F.3d 1332, 1336 (11th Cir. 1994);\n Bischoff v. Osceola County, 222 F.3d 874, 882 n.8 (11th Cir. 2000)\n (discussing City of Huntsville’s standard for demonstrating standing\n at the preliminary injunction stage of litigation). Under this\n standard, “general factual allegations of injury” can suffice, and\n “[w]e accept as true all material allegations contained in the\n complaint and construe the complaint in a light most favorable to\n the complaining party.” Elend v. Basham, 471 F.3d 1199, 1208 (11th\n Cir. 2006). Furthermore, in evaluating whether the plaintiffs have\n established Article III standing, “we must assume that on the merits\n [the plaintiffs] would be successful” on their claim. See Garcia-\n Bengochea v. Carnival Corp., 57 F.4th 916, 922 (11th Cir. 2023);\n Culverhouse v. Paulson & Co. Inc., 813 F.3d 991, 994 (11th Cir. 2016);\n see also Fed. Election Comm’n v. Cruz, 596 U.S. 289, 298 (2022) (“For\n standing purposes, we accept as valid the merits of appellees’ legal\n\n\n 7 We note, however, that in cases where standing is contested in the district\n\n court, we have not decided what degree of evidence is necessary to establish\n standing at the preliminary injunction stage. See Church v. City of Huntsville, 30\n F.3d 1332, 1336 n.1 (11th Cir. 1994) (“We leave for another day a\n determination of the degree of evidence necessary to support standing at the\n preliminary injunction stage when the plaintiff is on notice that standing is\n contested.”).\n\nUSCA11 Case: 23-12469 Document: 80-1 Date Filed: 01/09/2026 Page: 19 of 36\n\n\n\n\n 23-12469 Opinion of the Court 19\n\n claims, so we must assume that the loan-repayment\n limitation . . . unconstitutionally burdens speech.”).\n i. Injury in Fact\n Baker, Dougherty, Jones, and Weltner allege that they have\n suffered a First Amendment injury because § 66-37(b)’s residency\n requirement for signature gatherers “markedly reduces the pool of\n people who can circulate petitions” and “bars [them] from\n collecting signatures on their own, and thereby deprives [them] of\n the opportunity to collect signatures on a matter on which they are\n politically engaged and that directly affects them.” In other words,\n they allege their speech is chilled by the residency requirement for\n signature gatherers. While we express no opinion on the merits of\n the plaintiffs’ assertion that § 66-37(b)’s residency requirement\n violates the First Amendment, accepting their allegations as true\n and assuming they would be successful on the merits as we must\n at this preliminary stage of the proceedings, we conclude that their\n allegations are sufficient to establish an injury in fact for purposes\n of Article III standing. See Libertarian Party of Va. v. Judd, 718 F.3d\n 308, 311, 315 (4th Cir. 2013) (concluding that the Libertarian Party\n of Virginia’s allegations that the requirement that a resident of the\n state witness signatures on nominating petitions limited the\n number of petition circulators and the size of the audience it could\n reach “constitute[d] an injury in fact for standing purposes”); Krislov\n v. Rednour, 226 F.3d 851, 856–57 (7th Cir. 2000) (holding that\n political candidates had standing to challenge Illinois’s requirement\n that nominating petition circulators be registered resident “voters\n\nUSCA11 Case: 23-12469 Document: 80-1 Date Filed: 01/09/2026 Page: 20 of 36\n\n\n\n\n 20 Opinion of the Court 23-12469\n\n of the same political subdivision for which the candidate is seeking\n office” because the requirement allegedly deprived the candidates\n of the political advocates of their choice and limited the number of\n people who could carry their message, which “can be an injury to\n First Amendment rights”); Lerman v. Bd. of Elections in the City of\n N.Y., 232 F.3d 135, 139, 142–43 (2d Cir. 2000) (concluding that\n plaintiff had sufficiently alleged an injury in fact when she claimed\n that New York’s requirement that petition signatures be witnessed\n by a person who was a “resident of the political subdivision in\n which the office or position [was] to be voted for” deprived the\n plaintiff of her First Amendment right to “gather signatures [o]n\n behalf of” the candidate of her choice).\n ii. Traceability\n The second question we must consider in determining\n whether the plaintiffs have standing is whether the asserted “injury\n is fairly traceable to the challenged action of the defendant.”\n Lowman, 83 F.4th at 1355. The traceability requirement is also\n sometimes referred to as a “causation” requirement—meaning the\n plaintiffs must demonstrate “a fairly . . . traceable connection\n between the alleged injury in fact and the alleged conduct of the\n defendant.” Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529\n U.S. 765, 771 (2000) (alterations adopted) (quotations omitted).\n We have repeatedly emphasized that “the traceability requirement\n is less stringent than proximate cause: ‘[e]ven a showing that a\n plaintiff’s injury is indirectly caused by a defendant’s actions\n satisfies the fairly traceable requirement.’” Cordoba v. DIRECTV,\n\nUSCA11 Case: 23-12469 Document: 80-1 Date Filed: 01/09/2026 Page: 21 of 36\n\n\n\n\n 23-12469 Opinion of the Court 21\n\n LLC, 942 F.3d 1259, 1271 (11th Cir. 2019) (quoting Resnick v. AvMed,\n Inc., 693 F.3d 1317, 1324 (11th Cir. 2012)).\n The plaintiffs here easily satisfy the traceability requirement.\n Their alleged injuries are the direct result of the City’s enforcement\n of § 66-37(b). In fact, the initial referendum petition submitted to\n the municipal clerk was rejected as to form by the clerk because\n the draft provided “[did] not comply with the legal requirement\n that the petition contain a place on each form for the person\n collecting signatures to provide his or her name, street address,\n city, county, state, ZIP code, and telephone number and to swear\n that he or she is a resident of the City of Atlanta.” By enforcing the\n requirement that the referendum petition include a space “for the\n person collecting signatures . . . to swear that he or she is a resident\n of the City of Atlanta,” the City foreclosed the ability of the\n plaintiffs who are nonresidents to collect signatures. Accordingly,\n the plaintiffs have satisfied the traceability requirement for\n purposes of Article III.\n iii. Redressability\n The final requirement of Article III standing is that the\n plaintiffs demonstrate that “it is likely, as opposed to merely\n speculative, that the injury will be redressed by a favorable\n decision.” Lowman, 83 F.4th at 1355. In other words, the plaintiffs\n need to demonstrate that “a court decision can . . . eliminate the\n harm.” Muransky v. Godiva Chocolatier, Inc., 979 F.3d 917, 924 (11th\n Cir. 2020) (en banc); see also Lewis, 944 F.3d at 1301 (en banc)\n (explaining that the redressability inquiry “ask[s] whether a\n\nUSCA11 Case: 23-12469 Document: 80-1 Date Filed: 01/09/2026 Page: 22 of 36\n\n\n\n\n 22 Opinion of the Court 23-12469\n\n decision in a plaintiff’s favor would significant[ly] increase . . . the\n likelihood that [the plaintiff] would obtain relief that directly\n redresses the injury that she claims to have suffered” (second\n alteration in original) (quotations omitted)).\n Here, the plaintiffs satisfy redressability because they\n requested that the district court enjoin enforcement of the\n residency requirement in local ordinance § 66-37(b) and the\n identical requirement in Georgia’s Home Rule Act for\n Municipalities, O.C.G.A. § 36-35-3(b)(2)(C), from which ordinance\n § 66-37(b) flows. Enjoining enforcement of the residency\n requirement would remedy their alleged harm—their inability to\n collect signatures for referendum petitions as non-residents of the\n City. Thus, at this preliminary stage of the proceedings, the\n plaintiffs have included sufficient allegations and requests for relief\n that satisfy the redressability element of Article III standing.\n The City argues that the plaintiffs cannot show\n redressability because the preliminary injunction the district court\n issued enjoining the residency requirement in municipal ordinance\n § 66-37(b) was silent as to the residency requirement in O.C.G.A.\n § 36-35-3(b)(2)(C), and the City is still required to follow O.C.G.A.\n § 36-35-3. In other words, according to the City, the preliminary\n injunction that issued does not eliminate the plaintiffs’ harm\n because under § 36-35-3(b)(2)(C) non-residents of the city are still\n prohibited from collecting signatures for referendum petitions.\n We disagree. The City’s argument confuses the question of\n redressability with the remedy actually granted. Properly framed,\n\nUSCA11 Case: 23-12469 Document: 80-1 Date Filed: 01/09/2026 Page: 23 of 36\n\n\n\n\n 23-12469 Opinion of the Court 23\n\n the appropriate question is whether the district court could have\n redressed the plaintiffs’ injury. Here, the district court could have\n redressed the alleged injury by enjoining both the municipal\n ordinance in § 66-37(b) and O.C.G.A. § 36-35-3. The fact that the\n district court did not enjoin O.C.G.A. § 36-35-3 does not affect\n whether the plaintiffs have shown redressability. Accordingly, we\n conclude that the plaintiffs have satisfied the redressability\n requirement for purposes of Article III.\n Having concluded that the plaintiffs have standing, we now\n turn to the merits of the arguments concerning the preliminary\n injunction.\n C. Preliminary Injunction\n The City maintains that the district court abused its\n discretion for a variety of reasons in granting the plaintiffs’ request\n for a preliminary injunction.8 We focus our analysis on whether\n the plaintiffs established irreparable harm.\n As noted previously, a district court may grant a preliminary\n injunction only if the moving party establishes, among other\n factors, that “it has a substantial likelihood of success on the merits”\n and that “it will suffer an irreparable injury unless the injunction is\n granted.” Gonzalez, 978 F.3d at 1271; see also Siegel v. LePore, 234\n F.3d 1163, 1176 (11th Cir. 2000) (en banc) (“[A] preliminary\n\n\n 8 “We review the grant of a preliminary injunction for abuse of discretion,\n\n reviewing any underlying legal conclusions de novo and any findings of fact for\n clear error.” Gonzalez, 978 F.3d at 1270.\n\nUSCA11 Case: 23-12469 Document: 80-1 Date Filed: 01/09/2026 Page: 24 of 36\n\n\n\n\n 24 Opinion of the Court 23-12469\n\n injunction is an extraordinary and drastic remedy not to be granted\n unless the movant clearly established the burden of persuasion as\n to each of the . . . prerequisites.” (quotations omitted)). The\n substantial likelihood of success on the merits requirement is\n generally the most important factor. Gonzalez, 978 F.3d at 1271\n n.12. Nevertheless, “even if Plaintiffs establish a likelihood of\n success on the merits, the absence of a substantial likelihood of\n irreparable injury would, standing alone, make preliminary\n injunctive relief improper.” Siegel, 234 F.3d at 1176; see id. (“A\n showing of irreparable injury is the sine qua non of injunctive\n relief.” (quotations omitted)).\n Here, the City maintains that even if we assume arguendo\n that the plaintiffs showed a substantial likelihood of success on the\n merits, injunctive relief is not appropriate because under the\n Supreme Court of Georgia’s Kemp decision, the plaintiffs cannot\n use the referendum process to repeal a local ordinance and thus the\n plaintiffs cannot show irreparable harm. 9 We agree.\n\n\n 9 The district court declined to reach the City’s argument that the plaintiffs\n\n could not show irreparable harm because the referendum petition itself was\n invalid under Kemp, concluding that the validity of the petition was not ripe\n for review. Instead, the district court explained that, in its view, the only issue\n before the court was “whether Atlanta Municipal Code § 66-37(b) violates the\n First Amendment by requiring signature gatherers to be City residents.”\n However, in order to determine whether § 66-37(b)’s residency requirement\n irreparably harms the plaintiffs’ First Amendment rights, the court must first\n determine whether the referendum process is an available process in the first\n instance. If the referendum process is not an available means to challenge the\n leasing ordinance for the new training facility, then there necessarily cannot\n\nUSCA11 Case: 23-12469 Document: 80-1 Date Filed: 01/09/2026 Page: 25 of 36\n\n\n\n\n 23-12469 Opinion of the Court 25\n\n In Kemp, the Supreme Court of Georgia held that the\n petition procedure in subsection O.C.G.A. § 36-35-3(b)(2)—from\n which Atlanta’s virtually identical local ordinance § 66-37(b)\n flows—“applies only to amendments to municipal charters.” 496\n S.E.2d at 716. In reaching this conclusion, the court reasoned as\n follows:\n The cardinal rule of statutory interpretation is to\n ascertain the legislative intent, “keeping in view at all\n times the old law, the evil, and the remedy.” OCGA\n § 1–3–1(a); Miller v. Georgia Ports Auth., 266 Ga. 586,\n 587(1), 470 S.E.2d 426 (1996). A primary purpose of\n the Municipal Home Rule Act was to authorize\n municipalities to amend their charters by their own\n actions. Sadler v. Nijem, 251 Ga. 375, 376, 306 S.E.2d\n 257 (1983). The Act was passed under the authority\n of a 1954 amendment to the Constitution of the State\n of Georgia, which is currently found at Art. IX, Sec.\n II, Par. II. Prior to the 1954 amendment and the\n Home Rule Act of 1965, city charters were\n amendable only by acts of the General Assembly. See\n Sadler, supra; Phillips v. City of Atlanta, 210 Ga. 72, 77\n S.E.2d 723 (1953). The two procedures of OCGA\n § 36–35–3(b) were enacted to relieve the General\n Assembly of its earlier burden of separately\n amending each and every city charter in the state.\n\n\n be any irreparable injury. In other words, the answer to the irreparable harm\n question is inextricably intertwined with, and dependent upon, the answer to\n the Kemp-based question.\n\nUSCA11 Case: 23-12469 Document: 80-1 Date Filed: 01/09/2026 Page: 26 of 36\n\n\n\n\n 26 Opinion of the Court 23-12469\n\n Moreover, a statute is to be read as a whole, and the\n spirit and intent of the legislation prevails over a\n literal reading of the language. Hargrove v. State, 253\n Ga. 450, 452(1), 321 S.E.2d 104 (1984); Sirmans v.\n Sirmans, 222 Ga. 202, 204, 149 S.E.2d 101 (1966). The\n legislative intent will be eﬀectuated even if some\n language must be eliminated. Maples v. City of Varnell,\n 244 Ga. 163, 164, 259 S.E.2d 94 (1979). The language\n upon which the [the plaintiﬀs rely] is the reference to\n “amendments to or repeals of ordinances,\n resolutions, or regulations,” found in OCGA\n § 36-35-3(b)(2)(A). All of OCGA § 36–35–3(b) is\n prefaced by a statement that what follows are the\n methods by which a municipal corporation may\n “amend its charter.” This also shows that the petition\n and referendum provision is intended to be available\n only when the proposed amendment is intended to\n aﬀect a city charter.\n\n Further, when examined in the context of the\n structure of OCGA § 36–35–3, the very concept of\n home rule suggests that the provisions of (b)(2) apply\n only to charter amendments. Municipal corporations\n are creations of the state, possessing only those\n powers that have been granted to them, and\n allocations of power from the state are strictly\n construed. Porter v. City of Atlanta, 259 Ga. 526, 384\n S.E.2d 631 (1989). Municipal home rule power is a\n delegation of the General Assembly’s legislative\n power to the municipalities. Ga. Const. of 1983, Art.\n IX, Sec. II, Par. II; Cooper v. City of Gainesville, 248 Ga.\n\nUSCA11 Case: 23-12469 Document: 80-1 Date Filed: 01/09/2026 Page: 27 of 36\n\n\n\n\n 23-12469 Opinion of the Court 27\n\n 269, 270, 282 S.E.2d 322 (1981); Plantation Pipe Line Co.\n v. City of Bremen, 227 Ga. 1, 6(1), 178 S.E.2d 868 (1970).\n OCGA § 36–35–3(a) speciﬁes that the delegation of\n legislative power is to “[t]he governing authority,”\n which is the Mayor and Council. See Savage v. City of\n Atlanta, 242 Ga. 671, 674–675(1), 251 S.E.2d 268\n (1978). Under an interpretation of OCGA § 36–35–\n 3(b)(2) that would allow the electorate to petition for\n a referendum on all ordinances and resolutions, the\n electorate would be exercising legislative power. As\n we must strictly construe the grant of legislative\n power to the governing authority, we must reject\n plaintiﬀs’ argument that the electorate can directly\n exercise such general legislative power.\n\n Kemp, 496 S.E.2d at 715–16.\n Although the plaintiffs correctly point out that the reasoning\n of Kemp has been called into question by the Supreme Court of\n Georgia’s recent decision in Camden County v. Sweatt, 883 S.E.2d\n 827 (Ga. 2023), 10 the fact remains that Kemp is still controlling\n\n\n 10 In Sweatt, the Supreme Court of Georgia considered whether Article 9,\n\n Section 2 of the Georgia Constitution, which is the “Home Rule for counties”\n provision, authorized a referendum to overturn county resolutions. 883\n S.E.2d at 835–36. Similar to the Home Rule for municipalities, the Home Rule\n for counties states that:\n (a) The governing authority of each county shall have\n legislative power to adopt clearly reasonable ordinances,\n resolutions, or regulations relating to its property, aﬀairs,\n and local government for which no provision has been\n made by general law and which is not inconsistent with\n\nUSCA11 Case: 23-12469 Document: 80-1 Date Filed: 01/09/2026 Page: 28 of 36\n\n\n\n\n 28 Opinion of the Court 23-12469\n\n precedent in Georgia, and we are bound by Kemp unless and until\n it is overruled. See Gonzalez, 978 F.3d at 1271 (explaining that we\n are “bound by the decisions of the Supreme Court of Georgia on\n questions of Georgia law”); Johnson v. 3M Co., 55 F.4th 1304, 1312\n\n this Constitution or any local law applicable thereto. Any\n such local law shall remain in force and eﬀect until\n amended or repealed as provided in subparagraph (b). . . .\n\n (b) Except as provided in subparagraph (c), a county may, as\n an incident of its home rule power, amend or repeal the\n local acts applicable to its governing authority by\n following either of the procedures hereinafter set forth:\n\n (1) Such local acts may be amended or repealed by\n a resolution or ordinance duly adopted at two\n regular consecutive meetings of the county\n governing authority not less than seven nor more\n than 60 days apart. . . .\n (2) Amendments to or repeals of such local acts or\n ordinances, resolutions, or regulations adopted\n pursuant to subparagraph (a) hereof may be\n initiated by a petition filed with the judge of the\n probate court of the county. . . .\n Ga. Const., art. 9, § II, ¶ I(b) (emphasis added). Based on the plain text of the\n constitutional provision, the Sweatt court held that “the Home Rule Paragraph\n authorized the County’s electorate to petition for the repeal of the\n Resolutions.” Sweatt, 883 S.E.2d at 838. The court recognized that its holding\n created “tension with Kemp,” but concluded that Kemp was not controlling\n because it involved “a completely separate legal provision.” Id. Thus, the\n court concluded that it “need not consider at this time whether Kemp should\n be overruled,” although it disapprovingly noted that the Kemp court\n disregarded many of the traditional canons of statutory construction in\n reaching its decision. Id.\n\nUSCA11 Case: 23-12469 Document: 80-1 Date Filed: 01/09/2026 Page: 29 of 36\n\n\n\n\n 23-12469 Opinion of the Court 29\n\n (11th Cir. 2022) (stating that “[t]he Georgia Supreme Court’s latest\n word . . . controls us when it comes to Georgia law”).\n As applied to the present case, Kemp forecloses the use of a\n referendum petition under O.C.G.A. § 36-35-3(b)(2)—and by\n necessary extension Atlanta’s local ordinance § 66-37(b)—to repeal\n the leasing ordinance, because that ordinance does not affect the\n City’s charter. 11 In other words, the plaintiffs and the coalition\n\n\n 11 Alternatively, the plaintiffs argue that, notwithstanding Kemp, § 2-501 of the\n\n City charter independently authorizes the referendum process. We disagree.\n Section 2-501 of the City charter, entitled “initiative and referendum,”\n provides as follows:\n (a) The council shall by ordinance prescribe procedures to\n govern the initiation, adoption, and repeal of ordinances\n by the electorate, and the council shall authorize an\n initiative or referendum election on petition of at least 15\n percent of the registered voters qualified to vote in the\n preceding general municipal election.\n (b) The council shall be authorized to submit to the qualified\n voters of the city at any election not called only for the\n purpose of putting said ordinance or resolution before the\n voters any ordinance or resolution which it may deem\n proper; and in the event a majority of voters shall vote for\n this ordinance or resolution, it shall be adopted. If a\n majority of the votes so cast are against the resolution or\n ordinance, it shall be defeated and shall not thereafter be\n adopted by the council until resubmitted to and adopted\n by the qualified voters of the city. If it receives a majority\n vote of the people and becomes effective, then it can only\n be repealed by a majority vote of the qualified voters\n voting at an election for such purpose.\n\nUSCA11 Case: 23-12469 Document: 80-1 Date Filed: 01/09/2026 Page: 30 of 36\n\n\n\n\n 30 Opinion of the Court 23-12469\n\n sponsoring the petition cannot use the referendum process to\n repeal a local ordinance. 12 Kemp, 496 S.E.2d at 716. And because\n no petition for referendum can lie to repeal a local ordinance, the\n plaintiffs necessarily will not suffer any irreparable harm from\n being denied the right to gather petitions for a referendum process\n that is unavailable to them as a matter of state law. In sum,\n contrary to the dissent’s position, because Georgia never granted\n the plaintiffs a referendum or repeal process for city ordinances in\n the first place, they cannot be irreparably harmed from being\n denied the ability to participate in an unavailable process. Thus,\n they cannot satisfy the irreparable injury requirement for obtaining\n an injunction.\n\n\n\n\n Atlanta City Charter § 2-501. Under well-established principles of local\n government law, this section merely authorizes the City to adopt procedures\n for petitions and referendum, pursuant to constraints of general state laws,\n including O.C.G.A. § 36-35-3(b)(2). It does not give the City the independent\n power to authorize referendum processes beyond those authorized under\n O.C.G.A. § 36-35-3. See Kemp, 496 S.E.2d at 715 (“[M]unicipal corporations are\n creations of the state, possessing only those powers that have been granted to\n them, and allocations of power from the state are strictly construed.”); City of\n Doraville, 181 S.E.2d at 350 (“A municipality, being a creature of the State has\n only such direct power as is granted to it by the State and if there is a\n reasonable doubt of the existence of a particular power, the doubt is to be\n resolved in the negative.”); Ivey v. McCorkle, 806 S.E.2d 231, 233 (Ga. Ct. App.\n 2017) (“An ordinance enacted in violation of OCGA § 36-35-3[] is void.”).\n 12 Because we conclude that a petition for referendum to repeal a local\n\n ordinance cannot lie under Kemp, we do not reach the City’s alternative\n argument that the referendum is invalid because it seeks to impair a contract.\n\nUSCA11 Case: 23-12469 Document: 80-1 Date Filed: 01/09/2026 Page: 31 of 36\n\n\n\n\n 23-12469 Opinion of the Court 31\n\n Because the district court erred in concluding that the\n plaintiffs met the requirement of showing irreparable injury, we\n need not address the other injunctive factors. Accordingly, for the\n above reasons, we conclude that the district court abused its\n discretion in granting the plaintiffs’ request for preliminary\n injunction. 13\n III. Conclusion\n In light of the above, we conclude that the plaintiffs have\n Article III standing and the case is not moot. However, because\n\n\n 13 We note that the City made a number of other arguments on appeal,\n\n including (1) that the district court violated Purcell v. Gonzlaez, 549 U.S. 1\n (2006), when issuing the injunction; (2) that the plaintiffs did not show a\n substantial likelihood of success on the merits; (3) that the referendum seeks\n to impair a contract; (4) that the third and fourth injunctive factors did not\n support the request for injunctive relief; and (5) that the district court erred in\n severing the contested residency requirement from the remainder of\n § 66-37(b). Because we conclude that the plaintiffs failed to satisfy the\n irreparable injury requirement, it is unnecessary for us to address these\n arguments.\n With regard to the City’s argument that the district court erred in the\n scope of the remedy by restarting the 60-day signature collection period for\n everyone, including residents of the City whose alleged First Amendment\n rights were not burdened, we note that “[t]he Supreme Court has cautioned\n that remedies should be limited to the inadequacy that produced the injury in\n fact that the plaintiff has established, and no more burdensome to the\n defendant than necessary to provide complete relief to the plaintiffs.” Georgia\n v. President of the United States, 46 F.4th 1283, 1303 (11th Cir. 2022) (quotations\n omitted). Nevertheless, we also do not reach this issue because we conclude\n irreparable harm is not met and the injunction was improper in the first\n instance.\n\nUSCA11 Case: 23-12469 Document: 80-1 Date Filed: 01/09/2026 Page: 32 of 36\n\n\n\n\n 32 Opinion of the Court 23-12469\n\n the plaintiffs failed to show an irreparable injury, the district court\n abused its discretion in granting the preliminary injunction.\n Accordingly, we vacate the injunction and remand the case to the\n district court for further proceedings.\n VACATED AND REMANDED.\n\nUSCA11 Case: 23-12469 Document: 80-1 Date Filed: 01/09/2026 Page: 33 of 36\n\n\n\n\n 23-12469 NEWSOM, J., Dissenting 1", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11239153/", "author_raw": "BRANCH, Circuit Judge:"}, {"author": "NEWSOM, Circuit Judge, dissenting", "type": "dissent", "text": "NEWSOM, Circuit Judge, dissenting:\n Bracketing the question whether the plaintiffs have shown a\n substantial likelihood of success on the merits of their First\n Amendment claim, the Court vacates the district court’s\n preliminary injunction on the ground that they haven’t\n demonstrated “irreparable injury.” Respectfully, I disagree.\n To be clear, the Court doesn’t dispute the established (and\n recently reaffirmed) principle that “[t]he loss of First Amendment\n freedoms, for even minimal periods of time, unquestionably\n constitutes irreparable injury.” Mahmoud v. Taylor, 606 U.S. 522,\n 569 (2025) (quoting Roman Catholic Diocese of Brooklyn v. Cuomo, 592\n U.S. 14, 19 (2020) (per curiam)). Instead, the Court seems to say\n that the plaintiffs’ “First Amendment freedoms” never really\n materialized here because (1) under the Georgia Supreme Court’s\n decision in Kemp v. City of Claxton, 496 S.E.2d 712 (Ga. 1998),\n Section 66-37(b)’s “referendum process” applies only to municipal-\n charter amendments, and (2) the plaintiffs aren’t seeking to amend\n Atlanta’s city charter, and thus can’t avail themselves of that\n “referendum process.” Maj. Op. at 24–29.\n I don’t think that’s quite right. The “referendum process”\n to which the Court refers comprises two discrete steps. At step\n one, petitioners like the plaintiffs fan out into the community to\n advocate their position and attempt to collect signatures in support\n of their cause—here, the effort to force a vote to repeal the local\n ordinance that authorized Cop City’s lease. At step two, the\n petitioners submit their signed petition to the city for approval.\n\nUSCA11 Case: 23-12469 Document: 80-1 Date Filed: 01/09/2026 Page: 34 of 36\n\n\n\n\n 2 NEWSOM, J., Dissenting 23-12469\n\n The Kemp problem that the Court identifies pertains to the second\n of the two steps: Chances are the city will reject the petitioners’\n signed petition because, as a matter of existing state law, Section\n 66-37(b) doesn’t cover grass-roots efforts to make non-charter-\n related amendments to municipal ordinances.\n But however remote the possibility that city officials will\n ultimately approve their petition, it seems to me that the plaintiffs\n have a separate, stand-alone First Amendment interest in\n participating in the signature-gathering process itself—in going\n through the motions, so to speak. Indeed, the Supreme Court has\n expressly distinguished between speech- and petition-related acts,\n on the one hand, and the success of those acts, on the other. In\n Smith v. Arkansas State Highway Employees, Local 1315, for instance,\n the Court reaffirmed that “[t]he First Amendment protects the\n right of an individual to speak freely, to advocate ideas, to associate\n with others, and to petition his government for redress of\n grievances”—despite the fact that it does not separately “impose\n any affirmative obligation on the government to listen [or]\n respond.” 441 U.S. 463, 464–65 (1979) (per curiam); accord Minn.\n State Bd. for Cmty. Colls. v. Knight, 465 U.S. 271, 285 (1984) (same).\n With respect to the particular type of speech act at issue\n here—the circulation of a citizen-initiated petition that seeks to\n place an issue on a general-election ballot—the Supreme Court’s\n unanimous decision in Meyer v. Grant, 486 U.S. 414 (1988), is\n effectively on point. There, the Court detailed precisely why,\n\nUSCA11 Case: 23-12469 Document: 80-1 Date Filed: 01/09/2026 Page: 35 of 36\n\n\n\n\n 23-12469 NEWSOM, J., Dissenting 3\n\n whatever a petition’s ultimate fate, the very process of circulating\n it involves “core political speech”:\n The circulation of an initiative petition of necessity\n involves both the expression of a desire for political\n change and a discussion of the merits of the proposed\n change. Although a petition circulator may not have\n to persuade potential signatories that a particular\n proposal should prevail to capture their signatures, he\n or she will at least have to persuade them that the\n matter is one deserving of the public scrutiny and\n debate that would attend its consideration by the\n whole electorate. This will in almost every case\n involve an explanation of the nature of the proposal\n and why its advocates support it. Thus, the\n circulation of a petition involves the type of\n interactive communication concerning political\n change that is appropriately described as “core\n political speech.”\n\n Id. at 421–22.\n The only potential hitch, it seems to me, is that in light of\n Kemp, the plaintiffs’ petition-circulation efforts here may well be\n doomed to fail: In all likelihood, despite the plaintiffs’ best\n canvassing efforts, city officials will reject their petition on Kemp\n grounds. Two rejoinders: First, given the Georgia Supreme\n Court’s recent (and pointed) criticism of Kemp for privileging “spirit\n and intent” to plain text in statutory interpretation, see Camden\n County v. Sweatt, 883 S.E.2d 827, 839 (Ga. 2023), the plaintiffs could\n\nUSCA11 Case: 23-12469 Document: 80-1 Date Filed: 01/09/2026 Page: 36 of 36\n\n\n\n\n 4 NEWSOM, J., Dissenting 23-12469\n\n appeal the city’s denial up through the state-court system—and,\n who knows, perhaps eventually prevail.\n Second, even if the plaintiffs’ campaign is a fool’s errand, it’s\n a fool’s errand to which the First Amendment entitles them. Even\n if their petition is ultimately rejected on Kemp grounds, that is, the\n plaintiffs may well think: The effort was worth it—we made our voices\n heard, we got our message out, we planted the seed. That, it seems to\n me, is wheelhouse First Amendment stuff. See, e.g., Mills v.\n Alabama, 384 U.S. 214, 218 (1966) (“Whatever differences may exist\n about interpretations of the First Amendment, there is practically\n universal agreement that a major purpose of that Amendment was\n to protect the free discussion of governmental affairs.”).", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11239153/", "author_raw": "NEWSOM, Circuit Judge, dissenting"}]}	NEWSOM	BRANCH	LUCK	1		{"NEWSOM": ", Circuit", "BRANCH": ", Circuit", "LUCK": ", Circuit"}	2	1	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10772568/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,775,540	U.S. Securities and Exchange Commission v. Spartan Securities Group, LTD	2026-01-16	22-13129	U.S. Court of Appeals for the Eleventh Circuit	{"judges": "Before BRANCH, LUCK, and TJOFLAT, Circuit Judges.", "parties": "", "opinions": [{"type": "010combined", "text": "USCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 1 of 211\n\n\n\n\n FOR PUBLICATION\n\n\n In the\n United States Court of Appeals\n For the Eleventh Circuit\n ____________________\n No. 22-13129\n ____________________\n\n U.S. SECURITIES AND EXCHANGE COMMISSION,\n Plaintiﬀ-Appellee,\n versus\n\n SPARTAN SECURITIES GROUP, LTD,\n ISLAND CAPITAL MANAGEMENT,\n CARL E. DILLEY,\n MICAH J. ELDRED,\n Defendants-Appellants,\n DAVID D. LOPEZ,\n Defendant.\n ____________________\n Appeal from the United States District Court\n for the Middle District of Florida\n D.C. Docket No. 8:19-cv-00448-VMC-CPT\n ____________________\n\n Before BRANCH, LUCK, and TJOFLAT, Circuit Judges.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 2 of 211\n\n\n\n\n 22-13129 Opinion of the Court 2\n\n PER CURIAM:\n The perpetrators of two microcap securities fraud schemes\n created nineteen shell companies that didn’t maintain actual busi-\n ness operations or assets, and then sold the companies’ securities\n at inflated prices after the securities became eligible for public trad-\n ing. This case is about the firms who helped make those compa-\n nies’ securities publicly tradeable.\n Carl Dilley and Micah Eldred owned and operated the two\n firms—Spartan Securities Group, Ltd., and Island Capital Manage-\n ment. Spartan, a broker-dealer, submitted Form 211 applications\n on each shell company’s behalf to the Financial Industry Regula-\n tory Authority (FINRA). Once a Form 211 was approved by\n FINRA, Spartan initiated public quotation on the companies’ secu-\n rities. Then Island, a transfer agent, applied to make the securities\n eligible for the Depository Trust Company’s (DTC) convenient,\n electronic settlement process.\n The Securities and Exchange Commission (SEC) brought\n this enforcement action against Dilley, Eldred, Spartan, and Island.\n Count six of its fourteen-count complaint alleged that each defend-\n ant made false statements to obtain FINRA clearance and DTC el-\n igibility, in violation of section 10(b) of the Securities Exchange Act\n of 1934 (codified at 15 U.S.C. section 78j(b)) and SEC rule 10b-5(b)\n (codified at 17 C.F.R. section 240.10b-5(b)).\n Ahead of trial, the defendants moved to exclude an SEC ex-\n pert witness as unqualified and unreliable, and they moved for spe-\n cial interrogatories on facts that would determine the maximum\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 3 of 211\n\n\n\n\n 22-13129 Opinion of the Court 3\n\n possible penalties. The district court denied each motion. The case\n went to trial, which ended in a jury verdict for the SEC as to count\n six. Each defendant moved for judgment as a matter of law, and\n the district court denied that relief too. And then, during the rem-\n edies phase, the district court enjoined the defendants from violat-\n ing section 10(b) and rule 10b-5(b) in the future, barred them from\n having any involvement with penny stocks, ordered that each de-\n fendant pay civil penalties, and ordered Island to disgorge ill-gotten\n profits to the United States Treasury.\n This is Dilley, Eldred, Spartan, and Island’s appeal. They ar-\n gue the district court erred by denying their motion to exclude the\n SEC’s expert witness and their motion for judgment as a matter of\n law. They also contend that the district court abused its discretion\n when imposing remedies. Most of the remedies were time-barred,\n they say. As to the disgorgement, they argue (1) the Exchange Act\n doesn’t authorize ordering disgorgement to the Treasury, (2) the\n facts of this case made that relief inequitable, (3) the SEC failed to\n show Island’s profits and wrongdoing were causally related, and\n (4) the SEC didn’t reasonably approximate the ill-gotten profits. As\n to the civil penalties, they argue (1) the Seventh Amendment re-\n quired that a jury find the facts establishing the maximum allowa-\n ble penalties and (2) the district court failed to consider their ability\n to pay the fine.\n After careful consideration, we affirm.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 4 of 211\n\n\n\n\n 22-13129 Opinion of the Court 4\n\n FACTUAL BACKGROUND\n Over-the-Counter Market Regulation\n Before turning to the defendants’ conduct, we first describe\n the process they used to take companies public for listing in the\n over-the-counter market.\n Microcap securities are low-priced stocks—often called\n penny stocks—that trade “over the counter,” meaning that they do\n not trade on a major national exchange. See Microcap Fraud,\n https://www.sec.gov/securities-topics/microcap-fraud\n [https://perma.cc/FF7A-BPC7] (last visited Jan. 21, 2025). To pre-\n vent microcap-securities fraud, the SEC adopted rule 15c2-11. Rule\n 15c2-11 requires that, before a broker-dealer can “publish any quo-\n tation for a security or . . . submit any such quotation for publica-\n tion[]” in the over-the-counter marketplace, it must disclose certain\n information about the issuing company. 17 C.F.R. § 240.15c2-\n 11(a)(1), (b)(5)(i). That information includes the issuer’s name and\n address, the identity of its transfer agent, and a “description of the\n issuer’s business,” including what products or services it sells and\n the facilities it operates. Id. § 240.15c2-11(b)(5)(i).\n A broker-dealer complies with rule 15c2-11 by submitting a\n Form 211 to FINRA, a private nonprofit organization that regulates\n broker-dealers. The Form 211 asks the broker-dealer to disclose\n the information required by rule 15c2-11, including the issuer’s and\n transfer agent’s identities. It also asks for “circumstances surround-\n ing the submission of th[e] application,” such as “the identity of any\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 5 of 211\n\n\n\n\n 22-13129 Opinion of the Court 5\n\n person(s) for whom the quotation is being submitted and any in-\n formation provided to [the] firm by such person(s).”\n A “registered principal of the firm responsible for th[e]\n Form 211 application[] and all subsequent submissions made in\n connection with [it]” must certify that he “has a reasonable basis\n for believing that the information accompanying th[e] form . . . is\n accurate.” By signing the certification, the principal\n “acknowledge[s] that copies of th[e] form, accompanying docu-\n ments, and subsequent submissions made in connection with [the\n form]” may be given to the SEC, other agencies, and “to the public\n upon request.”\n After the broker-dealer certiﬁes and submits the Form 211,\n FINRA examiners may request more information about the appli-\n cation, or point out issues of concern (called “red ﬂags”) by sending\n “deﬁciency letters” to the broker-dealer. If it still desires FINRA\n clearance, the broker-dealer will respond and cure the deﬁciencies;\n otherwise, the application is abandoned. This back-and-forth pro-\n cess continues until FINRA’s concerns are resolved and it ultimately\n approves the application.\n When FINRA approves a Form 211 application, it clears the\n issuer’s securities for public quotation on the over-the-counter\n market. Or, in the words of FINRA compliance analyst Deji Ad-\n ams, who testified at the defendants’ trial, completing the\n Form 211 process “essentially open[s] the door” to over-the-coun-\n ter public trading of the issuer’s securities. Without broker-dealers\n initiating and completing the Form 211 process, he explained, “the\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 6 of 211\n\n\n\n\n 22-13129 Opinion of the Court 6\n\n general public would not be able to invest” in the over-the-counter\n market.\n FINRA approval also enables the transfer agent to apply to\n make the issuer’s securities eligible for clearance and settlement\n through the DTC. The DTC is a ﬁnancial clearinghouse and the\n largest depository for shares of securities in the United States. The\n DTC facilitates convenient, virtually instant transfers of securities\n for eligible issuers. It holds stock certiﬁcates in trust for eligible\n issuers and allows eligible issuers to take advantage of electronic\n settlements of any purchase or sale in the marketplace.\n The Shell Companies\n From 2009 through 2014, Spartan was registered with the\n SEC as a broker-dealer. During that same period, Island was a reg-\n istered transfer agent.\n Spartan and Island were “sister companies.” The two com-\n panies shared the same oﬃce space, equipment, and employees.\n They also shared the same corporate oﬃcers. Dilley was a regis-\n tered principal of Spartan and the president of Island. Eldred was\n a registered principal of Spartan and the CEO of Island. Eldred\n testiﬁed that he created both companies to “complement” one an-\n other by providing both broker and transfer-agent services to the\n same clients.\n Four of the “clients” who solicited Spartan and Island’s ser-\n vices were Alvin Mirman, Sheldon Rose, Michael Daniels, and Di-\n ane Harrison. These four individuals asked Spartan and Island to\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 7 of 211\n\n\n\n\n 22-13129 Opinion of the Court 7\n\n help them trade nineteen shell companies through the over-the-\n counter market.\n Mirman/Rose Issuers\n Mirman and Rose, collectively, created fourteen of the shell\n companies: Kids Germ Defense Corp., Obscene Jeans Corp., On\n the Move Corp., Rainbow Coral Corp., First Titan Corp., Neutra\n Corp., Aristocrat Group Corp., First Social Networx Corp., Global\n Group Enterprises Corp., E-Waste Corp., First Independence\n Corp., Envoy Group Corp., Changing Technologies, Inc., and First\n Xeris Corp. (together, the “Mirman/Rose issuers”).\n Mirman and Rose’s plan from the onset was for these com-\n panies to be sold as public vehicles. To that end, they recruited an\n officer for each company to act as CEO in name only. They re-\n cruited personal friends and family members to fill these positions.\n Specifically, Mirman and Rose focused on friends and family who\n “had [a] background in th[e] specific company.” For example, E-\n Waste’s purported business plan was to open an electronics recy-\n cling facility, so Rose recruited an electrical engineer to be its direc-\n tor. Rose testified that these straw officers “knew . . . up front” that\n Mirman and Rose would sell the companies and give the officers a\n cut. These officers, Rose explained, had no control over the issu-\n ers’ business plans—Mirman and Rose “pretty much directed the\n total company.”\n After recruiting the straw officers, Mirman and Rose began\n the process of taking the companies public. The parties stipulated\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 8 of 211\n\n\n\n\n 22-13129 Opinion of the Court 8\n\n that Mirman and Rose “prepared false and misleading . . . SEC fil-\n ings [that] falsely depicted the issuers as actively pursuing a variety\n of business plans, when the only plan from the onset was for the\n compan[ies] to be sold as public vehicles.”\n To discuss the next step—seeking FINRA clearance—Mir-\n man and Rose “had a couple of lunches” with Dilley and Eldred.\n Dilley and Eldred would ask “‘what’s in the pipeline’ type of\n things.” Mirman and Rose responded that they were “working on\n a couple of things” that they “might be able to provide to [Dilley\n and Eldred] so that [they] can do some of the FINRA work.” Mir-\n man testified that Dilley and Eldred told him that “in order for\n [him] to deal with their broker-dealer, they would want me to deal\n with their transfer agent as well.” So he and Rose asked Spartan to\n file the shell companies’ Form 211 applications and for Island to be\n their transfer agent.\n Spartan began preparing Form 211 applications for Mirman\n and Rose, and Mirman and Rose served as Spartan’s “point people”\n during that process—providing Spartan with any information that\n it needed to complete the applications. Mirman and Rose for-\n warded documents necessary to complete the applications to Spar-\n tan. Spartan, Rose explained, would “take th[e] information” and\n “put it into the proper language for FINRA,” including “writing ba-\n sically the company’s plan and what it’s all about, the technical type\n of work to finally get the company public.” That information in-\n cluded Mirman and Rose’s purpose for creating the companies—\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 9 of 211\n\n\n\n\n 22-13129 Opinion of the Court 9\n\n Rose testified that he told Spartan “that the plan from the begin-\n ning” was to sell “[n]ot only Kids Germ,” but also “anyone down\n the road [he and Mirman] would be selling.”\n Rose testified that because he and Mirman were Spartan’s\n point people, he never told the issuers’ officers to contact Spartan\n or any of its employees, and he never introduced the officers to\n Spartan. He explained that Mark Nicholas, his son-in-law and Kids\n Germ CEO, “didn’t know Carl Dilley” and had “no reason” to con-\n tact Spartan. Mirman testified he was unaware of Spartan ever ask-\n ing the issuers’ officers for information. Two of the issuers’ offic-\n ers—Nigel Lindsay of First Independence and Matt Egna of Chang-\n ing Technologies—testified that they never contacted Spartan.\n Lindsay, a friend of Rose’s son, testified he never spoke to anyone\n from Spartan and had never heard of Dilley’s name. He also said\n that he never saw the Form 211 that Spartan completed for First\n Independence. Egna similarly testified that he did not know Dilley\n or Eldred, never spoke to them, and never interacted with them\n through Spartan while he was Changing Technologies’ president.\n Spartan ultimately submitted Form 211 applications for each\n Mirman/Rose issuer to FINRA between December 2009 and 2014,\n which Dilley signed as the “principal of the firm responsible for\n th[e] . . . application[s].” Each of these applications responded to\n the Form 211’s question asking for “circumstances surrounding the\n submission of th[e] application,” such as “the identity of any per-\n son(s) for whom the quotation is being submitted and any infor-\n mation provided to [the] firm by such person(s),” by saying “see\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 10 of 211\n\n\n\n\n 22-13129 Opinion of the Court 10\n\n cover letter for details.” The cross-referenced cover letters were\n written on Spartan letterhead and signed on Spartan’s behalf by\n Spartan employees—either Dilley, Anna Krokhina (who was an Is-\n land employee too), or Taylor Zajonc.\n All of Spartan’s cover letters opened with an “Introduction\n to Spartan Securities” section. These introductory sections stated\n that Spartan was filing the Form 211 applications after Dilley talked\n to the issuers’ respective officers by phone and electronically. For\n example, the First Independence Form 211 letter stated “Dilley . . .\n was telephonically contacted by Nigel Lindsay,” and that Spartan\n was proceeding with filing a Form 211 “[f]ollowing telephone con-\n versations and electronic communication over the past two\n months with the [i]ssuer.”\n After the introduction, the cover letters included a, “The\n [i]ssuer described its business as follows:” section. These sections\n said that “[t]he [i]ssuer[’s] described” business plans included selling\n consumer products or services (Obscene Jeans—women’s cloth-\n ing, Kids Germ—germ defense products, On the Move—electronic\n devices for vehicles, First Xeris—landscaping, Changing Technolo-\n gies—smartphone apps, Neutra—healthcare products), running a\n social networking site for parents (First Social), and opening vari-\n ous types of facilities (E-Waste—an electronics recycling facility,\n Aristocrat Group—a pregnancy healthcare center, Envoy Group—\n an “adult day care center,” Global Group—a vodka distillery, Rain-\n bow Coral—a sea “coral farm,” and First Independence—a food-\n product labeling and testing facility). Each letter then provided\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 11 of 211\n\n\n\n\n 22-13129 Opinion of the Court 11\n\n more information about the issuers, including that “[t]he issuer[s]\n ha[d] represented” they had not entered into any merger discus-\n sions, that they “[we]re not working with any consultants,” and\n that their officers had not “requested a listing quotation on” any\n other companies.\n FINRA sent Spartan deficiency letters as to each application,\n and Spartan responded each time with additional information to\n address FINRA’s concerns. FINRA ultimately cleared each Mir-\n man/Rose issuer for public quotation, informing Spartan each time\n that it was “acting in reliance upon the information” in the applica-\n tions. The parties stipulated that, after Spartan obtained the issu-\n ers’ FINRA clearance, Spartan “acted as the exclusive market-\n maker for the issuer[s] for [thirty] days,” holding itself out to the\n market as ready to buy and sell the issuers’ securities.\n Dilley testified that, “for every company that . . . had gone\n through the Form 211 process[, t]he next thing would be to go and\n figure out how to get them DTC eligible.” He viewed this next\n step as important for “brokers that would buy or sell the stock,”\n acknowledging that DTC eligibility was necessary to “allow[] for\n electronic settlement of any purchase or sale[] in the marketplace”\n and to “make[] the transaction easier in the event of a sale or pur-\n chase.” Then, according to Rose, “once everything was formulated\n [with FINRA and DTC], the next thing was basically . . . to sell the\n shell of a company” and the “job was to basically sell the shell”—\n which he and Mirman did. Island was each Mirman/Rose shell’s\n transfer agent, with the exception of Envoy Group.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 12 of 211\n\n\n\n\n 22-13129 Opinion of the Court 12\n\n Kids Germ, for example, took that path. Kids Germ, accord-\n ing to Rose, “wasn’t operating” when Spartan submitted its\n Form 211. After FINRA approved its Form 211 on January 4, 2010,\n Rose emailed Dilley that same day asking, “What do you recom-\n mend the company do with the DTC know [sic] the route it is tak-\n ing?” Rose also asked, “Do you want to speak to the atty interested\n in the company?” Dilley responded, “We should apply for DTC\n eligibility[—]Anna [Krokhina] can get that going.” And Dilley of-\n fered to call the “atty.” When asked about the email exchange at\n trial, Rose testified that “atty” meant “the attorney for the com-\n pany, whoever was buying it at the time.” That the attorney was\n someone who “wanted to purchase the company and wanted to\n make sure that it’s going to happen” was, Rose explained, “the only\n thing [he] could think of.”\n Less than two weeks later, Krokhina, who “did a lot of the\n work with the guidance of Dilley,” used her Island email address to\n submit a DTC application for Kids Germ. In January 2010, she sent\n the required information to Penson Financial Services, a DTC\n clearing firm, and wrote that “the company is not a shell.” One\n month later, once Kids Germ became DTC eligible, it sold in a re-\n verse merger that Island assisted as the transfer agent. 1\n\n\n\n 1\n Generally, a “reverse merger” refers to when a small public shell company\n acquires a large private company that isn’t a shell. This acquisition essentially\n allows the private company to go public without having to navigate the regis-\n tration process.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 13 of 211\n\n\n\n\n 22-13129 Opinion of the Court 13\n\n Daniels/Harrison Issuers\n Eldred knew that Daniels and Harrison (husband and wife)\n were both active in the “reverse merger business” and that they\n “dealt extensively” with shell companies. Daniels and Harrison\n had been friends with Eldred since 2003 or 2004. Aside from their\n personal friendship, Daniels, Harrison, and Eldred also frequently\n did business together. Eldred testified that “Spartan and Island pro-\n vided services to [Daniels’s and Harrison’s] law firm’s clients,” plus\n “some other things . . . outside of that.”\n For example, in 2010, Eldred and Harrison discussed becom-\n ing business partners. Eldred emailed Harrison from his Spartan\n address about a “partnership approach,” “proposing[] a series of\n transactions . . . to reorganize certain companies . . . through bank-\n ruptcy and then sell them.” Eldred mentioned “[one], or maybe\n [two] projects” that they could “do immediately” and that they\n could “add [one] or two additional per year.” As for splitting the\n profits from these projects, Eldred proposed that Harrison would\n receive a one-third share—telling Harrison that, for example, “if a\n cleaned up shell is worth $300k, then that’s $100k for you when we\n sell it.” In 2012, Harrison helped Eldred sell a company called En-\n deavor to businessman Andy Fan. Eldred emailed Harrison (again\n from his Spartan address) to “get to work” on a contract for that\n transaction, which Fan wrote was the “beginning of a beautiful re-\n lationship.”\n The parties stipulated that, spanning 2011 through 2014,\n Daniels and Harrison asked Spartan to file Form 211 applications\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 14 of 211\n\n\n\n\n 22-13129 Opinion of the Court 14\n\n for five issuers: a 2011 application for Dinello Restaurant Ventures,\n Inc.; a 2012 application for Court Document Services, Inc.; another\n 2012 application for Quality Wallbeds, Inc.; a 2013 application for\n Top to Bottom Pressure Washing, Inc.; and a 2014 application for\n PurpleReal.com Corp. (together, the “Daniels/Harrison issuers”).\n Spartan submitted each of these applications—which Daniels and\n Harrison had both worked on—to FINRA. Harrison served as each\n issuer’s attorney.\n When Spartan submitted these applications on Daniels’s and\n Harrison’s behalf, Eldred signed the Top to Bottom and PurpleReal\n forms as the “principal of the firm responsible for th[e] . . . applica-\n tion[s].” These applications—like the Mirman/Rose applica-\n tions—included cover letters, written on Spartan letterhead and\n signed by Zajonc, describing the issuer’s “[i]ntroduction to Spartan\n Securities.” The Top to Bottom letter stated Spartan’s introduction\n to the issuer was that the company president’s wife called Eldred,\n but Spartan “d[id] not have any other relationship with [the presi-\n dent’s wife], [the president], Top to Bottom . . . , or any of their\n other representatives.” Daniels served as Top to Bottom’s treas-\n urer and secretary, and Tina Donnelly—a Dinello employee who\n “handled all the financial records” for the Daniels/Harrison issu-\n ers—testiﬁed that Daniels’s “role in taking [Top to Bottom] public”\n was that “[h]e directed everything.” She elaborated that Top to\n Bottom “didn’t do anything without his direction [and] guidance.”\n Similarly, the PurpleReal letter’s introduction section stated\n that Harrison was the company’s CEO and that she called Eldred.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 15 of 211\n\n\n\n\n 22-13129 Opinion of the Court 15\n\n Besides “Harrison [being] known to [Spartan] for many years,” the\n letter wrote, Spartan “d[id] not have any other relationship with\n [her], the [i]ssuer, and/or its representatives.” When asked about\n this statement at trial, Eldred testified he “personally did” other\n business with Harrison, which the application didn’t disclose.\n Both letters stated that “[t]he [i]ssuer ha[d] represented that\n they ha[d] not entered into any . . . discussions or negotiations con-\n cerning potential merger or acquisition candidates.” Donnelly tes-\n tified that the actual “business model” for these companies began\n with taking them public by obtaining FINRA clearance. After that,\n the plan was to “immediately” dispose of all the company’s assets\n and sell the remaining public shell to an investor—usually for a re-\n verse merger with one of Fan’s “businesses in China.” Donnelly\n explained that once FINRA cleared Top to Bottom, its assets were\n sold off in “a fire sale” and the remaining public shell was “sold to\n an[] . . . investor that Daniels and Harrison found.” Daniels pro-\n posed doing the same with PurpleReal, telling Donnelly and two\n others, “Let’s . . . create a company from scratch, and let’s—let’s\n take it through the process, take it public, and, you know, you girls\n would make, you know, tons of money.” But before FINRA could\n clear PurpleReal, the SEC obtained a stop order.\n * * \n The SEC pursued enforcement actions against Mirman,\n Rose, Daniels, and Harrison based on fraud and misrepresentations\n about the nineteen shell companies. It initiated criminal actions\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 16 of 211\n\n\n\n\n 22-13129 Opinion of the Court 16\n\n against Mirman and Rose. Mirman, who testified that he con-\n sented in 2007 to being barred from associating with any FINRA\n member and “shouldn’t be involved in the . . . filing of [Form]\n 211s,” pleaded guilty to conspiracy to commit securities fraud re-\n lating to ten of the Mirman/Rose issuers. So did Rose as to all four-\n teen Mirman/Rose issuers.\n The SEC initiated civil enforcement action against Daniels\n and Harrison, alleging they made misrepresentations as to the\n other five companies. Daniels, who had a past forgery conviction\n before working with the defendants, did not admit the allegations\n but did consent to a judgment. Likewise, Harrison did not admit\n the allegations but consented to a judgment.\n PROCEDURAL HISTORY\n On February 20, 2019, after the enforcement actions against\n Mirman, Rose, Daniels, and Harrison ended, the SEC filed this en-\n forcement action against Dilley, Eldred, Spartan, and Island. The\n SEC’s fourteen-count complaint alleged that the defendants\n schemed with Mirman, Rose, Daniels, and Harrison to “package[]”\n the shell companies “for sale as public vehicles,” or at least aided\n and abetted schemes to do that, while knowing the companies\n 2\n “were pursuing their stated plans under false pretenses.” Most rel-\n\n\n\n 2\n Count one alleged Spartan published quotations without the “reasonable ba-\n sis” required by rule 15c2-11 and count two alleged Dilley and Eldred aided\n and abetted that violation. Counts three through five and seven through thir-\n teen alleged either that the defendants engaged in schemes to defraud with, or\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 17 of 211\n\n\n\n\n 22-13129 Opinion of the Court 17\n\n evant to this appeal, the SEC alleged in count six that each defend-\n ant made false statements or misleading omissions about the shell\n companies to obtain FINRA clearance and DTC eligibility, in vio-\n lation of Exchange Act section 10(b) and SEC rule 10b-5(b). As re-\n lief for those violations, the SEC sought a permanent injunction,\n monetary civil penalties, a penny stock bar as to Spartan, Dilley,\n and Eldred, and disgorgement as to Island.\n Pretrial Motions\n Before trial, the defendants filed three motions relevant to\n this appeal.\n First, the defendants moved for summary judgment, argu-\n ing that “[m]ost of [the] SEC’s claims” were time-barred. Citing 28\n U.S.C. section 2462’s five-year statute of limitations for any “action,\n suit or proceeding for the enforcement of any civil fine, penalty, or\n forfeiture, pecuniary or otherwise,” they contended that “the only\n acts for which the SEC [could] seek penalties” or disgorgement\n were those related to Envoy Group, Changing Technologies, First\n Xeris, Top to Bottom, and PurpleReal. The defendants argued that\n\n\n\n\n aided and abetted frauds conducted by, Mirman, Rose, Daniels, and Harrison.\n Count six alleged the defendants violated section 10(b) and rule 10b-5(b)\n through false statements and omissions. And count fourteen alleged that Spar-\n tan, Island, and Dilley violated the Exchange Act by selling or offering to sell\n securities without effective registration statements.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 18 of 211\n\n\n\n\n 22-13129 Opinion of the Court 18\n\n all conduct concerning the other issuers occurred before October\n 3\n 23, 2013.\n The district court denied the summary judgment motion,\n concluding that the defendants’ alleged violations “[we]re based on\n a single course of conduct” spanning from 2009 through 2014. Less\n than a week after the district court denied the summary judgment\n motion, Congress enacted the William M. Thornberry National\n Defense Authorization Act (NDAA). The NDAA created a new\n ten-year statute of limitations applicable to “claim[s] for any equi-\n table remedy” under the Exchange Act. See NDAA, Pub. L. No.\n 116-283, § 6501, 134 Stat. 3388, 4625–26 (2021); 15 U.S.C.\n § 78u(d)(8)(B). It separately created a new ten-year limitations pe-\n riod for certain “[d]isgorgement” claims, including those based on\n violations of section 10(b) or involving scienter. See 15 U.S.C.\n § 78u(d)(8)(A)(ii)(I), (IV).\n Second, the defendants moved to exclude any trial testi-\n mony by the SEC’s expert, James Cangiano. Cangiano is a private\n securities-regulation consultant. He largely studied English in col-\n lege and has not published any peer-reviewed work on regulating\n securities. But Cangiano worked for over forty years in securities\n regulation. He served as NASDAQ’s chief regulatory officer and\n spent more than twenty years as a regulator for the National Asso-\n ciation of Securities Dealers, Inc. (NASD)—FINRA’s predecessor\n\n\n 3\n Although five years from the SEC’s February 20, 2019 filing date is February\n 20, 2014, the parties agreed to toll section 2462’s five-year period by 119 days.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 19 of 211\n\n\n\n\n 22-13129 Opinion of the Court 19\n\n organization. During his time with NASD, he oversaw hundreds\n of investigations, including investigations through which he “iden-\n tif[ied] and address[ed] major frauds” in the microcap market.\n Cangiano gave deposition testimony that there would sometimes\n “be a transfer agent element” involved in those fraud investiga-\n tions.\n The SEC proffered Cangiano as an expert witness on “the\n role of transfer agents and their function in bringing securities to\n market.” The defendants conceded Cangiano had “extensive cre-\n dentials as a regulator.” They argued, though, that his “‘jack of all\n trades’ expertise” did not include any experience specific to transfer\n agents and thus did not qualify him to testify on practices “in the\n transfer agent industry.” His inexperience, they contended, ren-\n dered his opinions unreliable under Daubert v. Merrell Dow Pharm.,\n Inc., 509 U.S. 579 (1993).\n 4\n The district court denied the defendants’ Daubert motion.\n It found that Cangiano was qualified to testify about transfer\n agents, explaining that he had extensive relevant experience based\n on his time as a NASD regulator and consultant, which included\n consulting on fraud cases where “fraudsters actually owned their\n own transfer agent and . . . used [it] . . . to clean up the stock and\n\n\n\n 4\n The defendants renewed their objection to Cangiano’s qualifications and re-\n liability at trial. The district court overruled their objection based on its pre-\n trial order.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 20 of 211\n\n\n\n\n 22-13129 Opinion of the Court 20\n\n get it saleable.” And the district court found that Cangiano’s opin-\n ions were reliable because he based them on his experience, SEC\n regulations and guidelines, and his review of the evidence in this\n case. At trial, Cangiano testified that DTC only accepts free-trading\n 5\n shares, and that the transfer agent must affix a “restrictive legend”\n to stock certificates if the shares are not free-trading. And he\n opined that the defendants created “a one-stop shop” to “facilitate[]\n the cleaning of shells so that they could be sold” at inflated prices.\n Third, the defendants moved for special interrogatories.\n Specifically, because section 21(d) of the Exchange Act allows a dis-\n trict court to impose one of three maximum-penalty “tiers” that\n increase based on the type of violation, see 15 U.S.C. § 78u(d)(3)(B),\n the defendants argued that the Seventh Amendment required a\n special jury finding of “th[e] facts that might be necessary for clas-\n sification of penalties.” The district court denied this motion, find-\n ing that the Seventh Amendment did not require a special jury de-\n termination.\n Trial and Rule 50 Motions\n The case proceeded to trial, which lasted thirteen days. At\n the close of the SEC’s case, both sides moved for judgment as a\n matter of law under Federal Rule of Civil Procedure 50(a). The\n\n\n 5\n Cangiano explained that “free-trading stock” means “unrestricted stock” that\n can “be freely traded without any restrictions in the marketplace.” Stock that’s\n controlled by an insider or control person is generally not unrestricted or free-\n trading.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 21 of 211\n\n\n\n\n 22-13129 Opinion of the Court 21\n\n district court reserved ruling on those motions and the jurors be-\n gan deliberating.\n A few hours later the jury returned a verdict. The jury found\n Spartan, Island, Dilley, and Eldred liable on count six—making\n false statements or omissions under Exchange Act section 10(b)\n and SEC rule 10b-5(b). It did not find any defendant liable on any\n other count. The district court then denied the rule 50(a) motions.\n The defendants ﬁled a renewed motion for judgment as a\n matter of law under rule 50(b). Their arguments as to Dilley, El-\n dred, and Spartan focused on the FINRA Form 211 applications.\n They ﬁrst argued that Dilley, Eldred, and Spartan did not “make”\n any false statements in those applications; instead, they contended,\n they simply repeated statements the issuers told them. Second,\n they argued that any misrepresentations were immaterial to inves-\n tors because the statements were made in nonpublic cover letters.\n Third, they asserted that none of these misrepresentations were\n made in connection with the purchase or sale of a security.\n Island, for its part, argued that the only statements relevant\n to its liability were those made to Penson (the DTC clearing firm)\n about the status of stocks as free trading. Island specifically argued\n that the statement to Penson that “[Kids Germ] is not a shell,” was\n true, immaterial, and not in connection with the purchase or sale\n of a security.\n The district court denied the rule 50(b) motion. It concluded\n that sufficient evidence showed that the defendants made multiple\n misrepresentations, including that the issuers’ officers contacted\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 22 of 211\n\n\n\n\n 22-13129 Opinion of the Court 22\n\n Dilley or Spartan, that Spartan didn’t have relationships with Dan-\n iels and Harrison, that Island, through Krokhina, told Penson that\n Kids Germ was “not a shell,” and that Island misrepresented the\n status of the stocks as free-trading. The district court then rejected\n that the misrepresentations were immaterial and lacked any con-\n nection to the purchase or sale of securities.\n Remedies\n After the district court denied the rule 50(b) motion, the fo-\n cus turned to remedies. The SEC moved to permanently enjoin\n the defendants from violating section 10(b) and rule 10b-5(b) in the\n future, for the maximum tier-three civil penalties under sec-\n tion 21(d)(3)(B)(iii) of the Exchange Act, for penny stock bars\n against Spartan, Dilley, and Eldred, and for disgorgement of Is-\n land’s ill-gotten proﬁt to the Treasury.\n As for the amounts of the ﬁnancial remedies, the SEC ini-\n tially requested that Island disgorge $147,508, which an SEC ac-\n countant calculated based on the “fees [Island was paid] from each\n of the [fourteen] Mirman/Rose companies through the date of the\n issuer’s bulk sale.” The accountant stated that he arrived at\n $147,508 after reviewing Island’s ﬁnancial statements regarding\n each issuer. After Island argued that it had legitimate expenses that\n needed to be deducted, the SEC stuck by its initial request. The\n agency acknowledged, though, that deducting $21,388 regarding\n “possible” legitimate expenses for line items like “[p]rinting;\n CUSIP; credit memo; courier; DTC” would result in disgorgement\n of $125,720 and prejudgment interest of $43,710.74.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 23 of 211\n\n\n\n\n 22-13129 Opinion of the Court 23\n\n For penalties, the SEC limited its civil-penalty request to\n statements about Envoy Group, Changing Technologies, and First\n Xeris as to Dilley, and Top to Bottom and PurpleReal as to Eldred.\n It requested “one-time” penalties as to Spartan and Island not spe-\n ciﬁc to any issuer.\n The defendants opposed each type of proposed remedy.\n They argued that the SEC asked for an overly broad “obey-the-law”\n injunction. As to the civil penalties, the defendants contended the\n SEC did not prove that tier-three penalties were appropriate. Dil-\n ley, Spartan, and Island also argued that their respective “ﬁnancial\n condition[s]” warranted lesser (or no) penalties—Spartan and Is-\n land were out of business, and Dilley had a negative monthly net\n income.\n As for disgorgement, Island made four arguments. First, it\n argued that the Exchange Act does not authorize ordering dis-\n gorgement directly to the Treasury. Although the parties stipulated\n that distributing any disgorged proﬁts to investors instead “would\n be infeasible,” Island contended that the Exchange Act only allows\n distributing disgorged proﬁts to harmed investors. For this, Island\n cited section 21(d)(5), which allows the SEC to seek, and a district\n court to order, “any equitable relief that may be appropriate or nec-\n essary for the beneﬁt of investors.” 15 U.S.C. § 78u(d)(5).\n Second, Island contended that disgorgement was inequita-\n ble because Island’s proﬁts were paid by the issuers, who “were\n proven at trial to be fraudsters” and had unclean hands. Further,\n citing the case’s “unique timing,” Island repeated its argument that\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 24 of 211\n\n\n\n\n 22-13129 Opinion of the Court 24\n\n the SEC’s disgorgement claim was mostly untimely under 28 U.S.C.\n section 2462. Island also asserted that it would be unfair to retro-\n actively apply the NDAA’s new ten-year statute of limitations.\n Third, Island argued that the SEC failed to connect its calculation\n to evidence from trial. And fourth, it maintained that the SEC did\n not reasonably approximate Island’s ill-gotten gains because it\n failed to subtract Island’s legitimate business expenses, like routine\n operational costs.\n After an evidentiary hearing, the district court partly\n granted the SEC’s remedies motion. The court permanently en-\n joined Dilley, Eldred, and Island from violating section 10(b) and\n rule 10b-5(b), and it imposed penny stock bars as to Dilley, Eldred,\n and Spartan.\n Next, the district court ordered that Island disgorge $114,520\n in proﬁts to the Treasury, and it assessed $39,874.05 in prejudgment\n interest. The district court rejected Island’s contention that the Ex-\n change Act does not authorize ordering disgorgement directly to\n the Treasury. It acknowledged that the Supreme Court held, in Liu\n v. SEC, 591 U.S. 71, 74 (2020), that disgorgement ordered under sec-\n tion 21(d)(5) must be “awarded for victims.” But it found that Liu\n left open whether a district court may order disgorgement to the\n Treasury “when it is impossible to identify defrauded victims.”\n And, the district court reasoned, section 21(d)(7)—enacted through\n the NDAA after Liu—allowed ordering disgorgement to the Treas-\n ury even if doing so does not “beneﬁt . . . investors” under sec-\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 25 of 211\n\n\n\n\n 22-13129 Opinion of the Court 25\n\n tion 21(d)(5). See 15 U.S.C. § 78u(d)(7) (“In any action or proceed-\n ing brought by the Commission under any provision of the securi-\n ties laws, the Commission may seek, and any Federal court may\n order, disgorgement.”). Alternatively, the district court weighed\n the equities and found that it was “more equitable” to order dis-\n gorgement to the Treasury instead of “the money staying with Is-\n land, a key player in a scheme to put dubious equities on the mar-\n ket.”\n After it found that disgorgement was appropriate, the dis-\n trict court turned to determining the amount. Although the SEC\n proposed disgorgement of all fees the Mirman/Rose issuers paid\n to Island, the district court deducted “legitimate expenses incurred\n by Island prior to the bulk sale date for each company,” including\n expenses “for courier services, printing, and regulatory fees.”\n While the SEC did not concede line items for “[p]rinting; CUSIP;\n credit memo; courier; DTC” were legitimate, the district court\n found that the SEC “tacitly agreed” these expenses should be de-\n ducted.\n The district court also excluded three $200 payments made\n after the bulk sale date of Aristocrat Group, Global Group, and On\n the Move, plus a $3,500 expense related to Kids Germ because of\n its “odd payment history.” It did not order any disgorgement re-\n garding Envoy Group, ﬁnding that the SEC’s evidence was “insuﬃ-\n cient” as to that issuer. Although Island requested more reductions\n for “ﬁxed costs and overhead,” the district court found that Island\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 26 of 211\n\n\n\n\n 22-13129 Opinion of the Court 26\n\n did not show these expenses were legitimate and “any risk of un-\n certainty necessarily [fell] on Island.”\n Lastly, for civil penalties, the district court determined that\n tier-two penalties were appropriate because the jury found the de-\n fendants liable of violating rule 10b-5(b), “which requires that a\n material misrepresentation . . . be made with scienter.” To deter-\n mine the amount, “the [c]ourt look[ed] to” seven factors and “all\n [of ] the facts and circumstances,” including “whether the pen-\n alty . . . should be reduced due to defendants’ demonstrated cur-\n rent and future ﬁnancial condition.” After weighing these factors,\n the district court—citing the SEC’s request to “assess penalties for\n three ‘violations’ against . . . Dilley, two violations against . . . El-\n dred, and a single violation against the corporate [d]efendants”—\n ordered that Dilley and Eldred each pay $150,000. It also ordered\n that Spartan and Island each pay penalties of $250,000 for a “single\n violation.” The district court noted that the defendants “d[id] not\n dispute” the number of violations attributable to each defendant.\n DISCUSSION\n The defendants appeal on multiple grounds. We first ad-\n dress their argument that the district court abused its discretion by\n admitting Cangiano’s expert testimony. Second, we turn to their\n contention that each defendant was entitled to judgment as a mat-\n ter of law. And third, we address their assertion that the district\n court’s remedies order was an abuse of discretion.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 27 of 211\n\n\n\n\n 22-13129 Opinion of the Court 27\n\n Cangiano’s Qualifications and Reliability\n The defendants argue the district court abused its discretion\n when it allowed Cangiano to testify as an expert witness on transfer\n agent practices. They ﬁrst challenge Cangiano’s qualiﬁcations,\n contending that he was a “classic ‘expert on everything,’” but not\n an expert on Island’s role as a transfer agent. The defendants con-\n tend that Cangiano was not qualiﬁed to testify about “transfer\n agents and DTC eligibility” under Federal Rule of Evidence 702\n “because he had no experience in the transfer agent industry.” They\n argue that he “never worked for a transfer agent,” and that NASD\n didn’t directly regulate transfer agents while Cangiano worked\n there. Further, they highlight that Cangiano wasn’t formally edu-\n cated concerning transfer agents and has never published any work\n about them. For these same reasons, the defendants argue Cangi-\n ano’s opinions were unreliable.\n We review “a trial court’s evidentiary rulings, including its\n rulings on the admissibility of expert testimony, for abuse of discre-\n tion.” Cook ex rel. Est. of Tessier v. Sheriff of Monroe Cnty., 402 F.3d\n 1092, 1103 (11th Cir. 2005). District courts “enjoy[] ‘considerable\n leeway’ in making these determinations.” United States v. Frazier,\n 387 F.3d 1244, 1258–59 (11th Cir. 2004) (en banc) (quoting Kumho\n Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)).\n Rule 702 “has three basic requirements: the expert must be\n qualified; his methodology must be reliable; and his testimony\n must be helpful to the trier of fact.” Doe v. Rollins Coll., 77 F.4th\n 1340, 1347 (11th Cir. 2023); see also Frazier, 387 F.3d at 1259–60. The\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 28 of 211\n\n\n\n\n 22-13129 Opinion of the Court 28\n\n proponent must establish each requirement by a preponderance of\n evidence. Doe, 77 F.4th at 1347 (citing Fed. R. Evid. 104(a)). While\n “there is inevitably some overlap among th[ese] basic require-\n ments . . . they remain distinct concepts.” Frazier, 387 F.3d at 1260\n (citing Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333,\n 1341 (11th Cir. 2003)). We “and litigants must take care not to con-\n flate” them. Quiet Tech., 326 F.3d at 1341.\n Only the first two requirements are at issue here—Cangi-\n ano’s qualifications and the reliability of his testimony. As to qual-\n ification, a witness “need not be formally educated” on a topic to\n be an expert on it. United States v. Williams, 865 F.3d 1328, 1338\n (11th Cir. 2017). Instead, “experts may be qualified in various\n ways,” including by knowledge, skill, training, or experience. Fra-\n zier, 387 F.3d at 1260–61. Nothing in rule 702 “suggest[s] that ex-\n perience alone . . . may not provide a sufficient foundation for ex-\n pert testimony.” Fed. R. Evid. 702 Advisory Committee’s Note to\n 2000 Amendments. “In certain fields, experience is the predomi-\n nant, if not sole, basis for a great deal of reliable expert testimony.”\n Id.\n Through its second requirement—reliability—rule 702 re-\n quires a district court “to act as a gatekeeper to [e]nsure that spec-\n ulative . . . opinions do not reach the jury.” McClain v. Metabolife\n Int’l, Inc., 401 F.3d 1233, 1237 (11th Cir. 2005) (citing Daubert, 509\n U.S. at 589 n.7, 597). The district court may take any relevant fac-\n tors into account. See Seamon v. Remington Arms Co., 813 F.3d 983,\n 988 (11th Cir. 2016); Quiet Tech., 326 F.3d at 1341. But generally,\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 29 of 211\n\n\n\n\n 22-13129 Opinion of the Court 29\n\n “the rejection of expert testimony [as unreliable] is the exception\n rather than the rule.” Moore v. Intuitive Surgical, Inc., 995 F.3d 839,\n 850 (11th Cir. 2021) (quoting Fed. R. Evid. 702 Advisory Commit-\n tee’s Note to 2000 Amendments).\n Keeping in mind the “limited nature” of “appellate review in\n this area,” United States v. Brown, 415 F.3d 1257, 1264 (11th Cir.\n 2005), we cannot say the district court abused its discretion when\n it found that Cangiano was qualified and that his opinions were re-\n liable. First, the district court reasonably relied on Cangiano’s ex-\n tensive job experience in the over-the-counter market when it\n found he was qualified to testify about Island’s role as a transfer\n agent in that market. Cangiano had more than forty years of regu-\n latory experience in the over-the-counter market, including his\n time as a NASD regulator. In that role, he oversaw hundreds of\n fraud investigations, including investigations where he “identif[ied]\n and address[ed] major frauds” in the microcap market. Cf. United\n States v. Majors, 196 F.3d 1206, 1215–16 (11th Cir. 1999) (concluding\n district court didn’t abuse its discretion by finding that a financial\n analyst with eight-and-a-half years of experience, including per-\n forming fifty-plus analyses in prior fraud cases, was qualified to tes-\n tify about defendants’ records in fraud case). And since he retired\n as a regulator, he has continued working in the field by consulting.\n The defendants contend that Cangiano’s extensive regula-\n tory and consulting experience likely makes him an expert on\n something, but not on transfer agents. To that end, they say Cangi-\n ano “had no experience in the transfer agent industry” and never\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 30 of 211\n\n\n\n\n 22-13129 Opinion of the Court 30\n\n worked with transfer agents. But that argument ignores Cangi-\n ano’s testimony that, when he oversaw fraud investigations, there\n would sometimes “be a transfer agent element” involved. And he\n consulted on a case involving similar facts to the ones that the SEC\n alleged here—involving “fraudsters [who] actually owned their\n own transfer agent and . . . facilitate[d] the sale of . . . companies”\n by using the “transfer agent to clean up the stock.” Thus it’s not\n true that Cangiano has no job-related experience whatsoever in-\n volving transfer agents.\n The defendants also argue Cangiano was unqualified to tes-\n tify about transfer agents because he was never formally educated\n about them and he has never published peer-reviewed work about\n them. These arguments also miss the mark. Again, a witness\n “need not be formally educated” on a topic to be an expert on it.\n Williams, 865 F.3d at 1338. The district court reasonably found that\n Cangiano’s experience qualified him to testify about transfer\n agents. Cf. Fed. R. Evid. 702 Advisory Committee’s Note to 2000\n Amendments (“In certain fields, experience is the predominant, if\n not sole, basis for a great deal of reliable expert testimony.”).\n Second, the district court didn’t abuse its discretion in find-\n ing Cangiano’s opinions reliable. Cangiano applied his forty-plus\n years of experience to the issues in the case. He reached his opin-\n ions after reviewing a variety of fact sources—including the plead-\n ings; deposition testimony by Rose, Mirman, Harrison, Eldred, Dil-\n ley, Lopez, Krokhina, and Zajonc; the defendants’ emails; FINRA\n and SEC regulations and guidance; and the issuers’ SEC filings. Cf.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 31 of 211\n\n\n\n\n 22-13129 Opinion of the Court 31\n\n Fed. R. Evid. 703 (“An expert may base an opinion on facts or data\n in the case that the expert has been made aware of or personally\n observed.”). Thus, the district court reasonably found that Cangi-\n ano’s opinions were “properly grounded, well-reasoned, and not\n speculative.” Fed. R. Evid. 702 Advisory Committee’s Note to 2000\n Amendments; cf. United States v. 0.161 Acres of Land, 837 F.2d 1036,\n 1040 (11th Cir. 1988) (“[W]here the expert’s testimony has a rea-\n sonable factual basis, a court should not exclude it.”).\n In short, the district court did not abuse its discretion in ad-\n mitting Cangiano’s testimony under rule 702.\n Judgment as a Matter of Law\n The jury found each defendant liable on count six for violat-\n ing section 10(b) of the Exchange Act and SEC rule 10b-5(b). Sec-\n tion 10(b) makes it unlawful “[t]o use . . . , in connection with the\n purchase or sale of any security . . . , any manipulative or deceptive\n device.” 15 U.S.C. § 78j(b). And rule 10b-5(b), which “imple-\n ments” section 10(b), SEC v. Zandford, 535 U.S. 813, 819 (2002),\n makes it unlawful “[t]o make any untrue statement of a material\n fact or to omit to state a material fact necessary in order to make\n the statements made . . . not misleading,” 17 C.F.R. § 240.10b-5(b).\n “The scope of liability under” these two provisions “is the same.”\n SEC v. Merch. Cap., LLC, 483 F.3d 747, 766 n.17 (11th Cir. 2007). “To\n prove a . . . violation, the SEC must show (1) material misrepresen-\n tations or materially misleading omissions, (2) in connection with\n the purchase or sale of securities, (3) made with scienter.” Id. at\n 766 (citing Aaron v. SEC, 446 U.S. 680, 695 (1980)).\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 32 of 211\n\n\n\n\n 22-13129 Opinion of the Court 32\n\n Each defendant argues that no reasonable jury could have\n found that the SEC proved the first two elements. So, the defend-\n ants contend, the district court erred in denying their motions for\n judgment as a matter of law.\n We review de novo a district court’s ruling on a motion for\n judgment as a matter of law, “applying the same standard that the\n district court applied.” Mamani v. Sánchez Bustamante, 968 F.3d\n 1216, 1230 (11th Cir. 2020) (citation omitted). Viewing all evidence\n and drawing all reasonable inferences in the nonmovant’s favor,\n our “sole consideration” is whether sufficient evidence supported\n the jury’s verdict. Chaney v. City of Orlando, 483 F.3d 1221, 1227\n (11th Cir. 2007).\n Because the defendants do not argue that a reasonable jury\n couldn’t find the third element of a rule 10b-5(b) violation—scien-\n ter—we focus on whether the defendants made material misrepre-\n 6\n sentations in connection with the purchase or sale of securities.\n\n\n\n 6\n We need not consider whether sufficient evidence showed the defendants\n made misrepresentations as to the three Daniels/Harrison issuers—Dinello,\n Quality Wallbeds, and Court Document Services—because any violation as to\n those issuers didn’t result in a remedy before us on appeal. The district court\n ordered Dilley’s civil penalty based on three violations regarding Envoy\n Group, Changing Technologies, and First Xeris, and it ordered Eldred’s pen-\n alty based on two violations regarding Top to Bottom and PurpleReal. The\n district court ordered Spartan and Island’s civil penalties based on a “single\n violation” without specifying a particular company. The disgorgement award\n was based on the Mirman/Rose issuers, with the exception of Envoy Group.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 33 of 211\n\n\n\n\n 22-13129 Opinion of the Court 33\n\n See Merch. Cap., 483 F.3d at 766. As to those two elements, suffi-\n cient evidence supported the jury’s verdict. First, a reasonable jury\n could find that Spartan and Dilley made material misrepresenta-\n tions, in connection with the purchase or sale of securities, on the\n FINRA Form 211 applications for the Mirman/Rose issuers. Sec-\n ond, a reasonable jury could find that Spartan and Eldred did the\n same on the FINRA applications for Top to Bottom and Purple-\n Real. Third, a reasonable jury could find that Island made a mate-\n rially false statement, in connection with the purchase or sale of a\n security, to obtain Kids Germ’s DTC eligibility.\n Mirman/Rose FINRA Applications\n (Spartan and Dilley)\n We begin with the Mirman/Rose issuers’ FINRA applica-\n tions, which Spartan submitted and Dilley certified as the “principal\n of the firm responsible for th[e] application[s].” We divide our dis-\n cussion of the first rule 10b-5(b) element—material misrepresenta-\n tion—into two parts: whether Spartan and Dilley actually made\n any false statements or misrepresentations and, if so, whether the\n misrepresented information was material. We then address the\n second rule 10b-5(b) element—the misrepresentations’ connection\n to the purchase or sale of securities.\n 1. Misrepresentations or omissions\n Spartan and Dilley argue that they didn’t actually “make”\n any false statements in the Mirman/Rose Form 211 applications.\n They also contend that they did not have a duty to disclose any\n omitted facts necessary to make the applications’ statements not\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 34 of 211\n\n\n\n\n 22-13129 Opinion of the Court 34\n\n misleading. A reasonable jury could find that they affirmatively\n made false statements in the applications, independent of any mis-\n leading omissions.\n There was evidence that Spartan and Dilley made false state-\n ments in the Form 211 cover letters about who solicited them to\n file the applications and why. Each Form 211 asked for “circum-\n stances surrounding the submission,” “[i]nclud[ing] the identity of\n any person(s) for whom the quotation[s were] being submitted and\n any information provided . . . by such person(s).” On each Mir-\n man/Rose application, Spartan responded by saying “see [an at-\n tached] cover letter for details.” Each cross-referenced cover letter,\n written on Spartan letterhead, began with an “Introduction to Spar-\n tan Securities” section stating that the issuers’ officers “telephoni-\n cally contacted” Dilley to initiate the Form 211 process.\n Then, after each introduction, Spartan included a section\n with statements detailing the issuers’ business plans. Each of these\n sections stated that “[t]he [i]ssuer described its business as” plan-\n ning to maintain future active operations or tangible assets. Spar-\n tan’s letters said that “[t]he [i]ssuer[s’] described” operations in-\n cluded selling consumer products or services (Obscene Jeans, Kids\n Germ, On the Move, First Xeris, Changing Technologies, Neutra),\n running a social networking site for parents (First Social), and open-\n ing various types of facilities—an electronics recycling facility (E-\n Waste), a healthcare center for pregnant mothers (Aristocrat), an\n “adult day care center” (Envoy), a vodka distillery (Global Group),\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 35 of 211\n\n\n\n\n 22-13129 Opinion of the Court 35\n\n a “coral farm” (Rainbow Coral), and a food-product labeling and\n testing facility (First Independence).\n These statements that Spartan and Dilley made were false\n because the issuers never “described [their] business[es]” as plan-\n ning to maintain real operations or assets—not to Dilley and not to\n anyone else at Spartan. The Mirman/Rose issuers’ officers never\n planned to actively operate the companies. Mirman and Rose re-\n cruited personal friends or family to be straw officers, or, in other\n words, CEOs in name only. These officers, Rose testified, had no\n control over the issuers’ business plans; Mirman and Rose “pretty\n much directed the total company.” The officers “knew . . . up\n front” that Mirman and Rose would sell the companies and give\n them a cut.\n Rose also testified that he never told the issuers’ officers to\n contact Spartan or any of its employees, and that he never intro-\n duced the officers to Spartan. Mirman echoed this testimony—ex-\n plaining that he was unaware of Spartan ever asking the issuers’\n officers for information. Two of the officers—Lindsay (First Inde-\n pendence) and Egna (Changing Technologies)—testified they\n didn’t even know who Dilley was.\n Instead of the issuers’ officers, it was Mirman and Rose who\n contacted Spartan to file the Mirman/Rose FINRA applications. In\n that process, Mirman and Rose served as Spartan’s “point peo-\n ple”—providing Spartan with any information that it needed to\n complete the applications. And there was evidence that those\n “point people” never told Dilley, or anyone else at Spartan, that the\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 36 of 211\n\n\n\n\n 22-13129 Opinion of the Court 36\n\n issuers planned to actively operate the businesses. Rose testified\n that he told Spartan “that the plan from the beginning” was to sell\n “[n]ot only Kids Germ,” but also “anyone down the road [he and\n Mirman] would be selling” as shells. According to Rose, he and\n Mirman “controlled the compan[ies]” and never had any intention\n of running them.\n Spartan and Dilley argue that they didn’t “make” these false\n statements because “all the statements provided to FINRA were\n from the issuers themselves.” In other words, because the cover\n letters prefaced some statements with language like “[t]he [i]ssuer\n described” or “[t]he issuer has represented,” they argue that the is-\n suers sent them statements to include in the applications and they\n simply repeated those statements to FINRA. Spartan and Dilley\n contend they had no control over the issuers’ statements, “false or\n not.” But a reasonable jury could find Spartan and Dilley had “ul-\n timate authority over the statement[s], including [their] content\n and whether and how to communicate it,” for two independent\n reasons. Janus Cap. Grp., Inc. v. First Derivative Traders, 564 U.S. 135,\n 142 (2011).\n First, although the Mirman/Rose FINRA letters did attrib-\n ute some statements to the issuers, they didn’t attribute everything\n to the issuers. Every “Introduction to Spartan Securities” section\n of the letters stated that the issuers’ respective officers “telephoni-\n cally contacted” Dilley, and that Spartan then had more “telephone\n conversations and electronic communication” with the issuers.\n But not once did a cover letter qualify those statements by saying\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 37 of 211\n\n\n\n\n 22-13129 Opinion of the Court 37\n\n “[t]he issuer has represented” its officer called Dilley or Spartan.\n Just as attributing a statement to someone else is evidence that its\n maker was “the party to whom it is attributed,” Janus, 564 U.S. at\n 142–43, speaking without attributing suggests that the statement’s\n speaker is the statement’s maker, cf. id. at 142 (“One ‘makes’ a state-\n ment by stating it.”). So because Spartan didn’t qualify the state-\n ments that the issuers’ officers called Dilley and Spartan—in letters\n with Spartan letterhead for applications that Dilley certified as the\n responsible principal—a reasonable jury could find Spartan and Dil-\n ley had “ultimate authority over the statement[s],” id. at 142. In-\n deed, Rose testified that he delegated that authority to Spartan—\n explaining that Spartan would “take th[e] information” and “put it\n into the proper language for FINRA,” including “writing basically\n the company’s plan and what it’s all about.”\n Second, there was evidence that the attributions themselves\n were false statements made by Spartan and Dilley. Whenever\n Spartan’s letters stated that “[t]he [i]ssuer described” its business as\n planning to maintain future operations and assets, Spartan and Dil-\n ley made a statement that the issuers told Spartan that was the plan.\n But again, there was evidence that the issuers’ officers never told\n anyone at Spartan about any plans to maintain active business op-\n erations or assets. Rose testified that he told Spartan the opposite—\n that he and Mirman created the companies to use as shells.\n 2. Materiality\n Next, Spartan and Dilley argue no reasonable jury could\n have found that the misrepresentations in the applications were\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 38 of 211\n\n\n\n\n 22-13129 Opinion of the Court 38\n\n material. Spartan and Dilley contend that, although the misrepre-\n sentations might’ve mattered to FINRA regulators, those misrep-\n resentations couldn’t have impacted an investor’s investment deci-\n sion because Form 211 applications are not publicly available. But\n because there was evidence that the misrepresentations could have\n impacted an investment decision, a reasonable jury could find ma-\n teriality.\n A misrepresented fact is material under rule 10b-5(b) if “a\n reasonable man would attach importance to [it] . . . in determining\n his course of action.” SEC v. Goble, 682 F.3d 934, 943 (11th Cir. 2012)\n (quoting Merch. Cap., 483 F.3d at 766). “Course of action” means\n “an investment decision.” Id. (quotation omitted); cf. In re Galectin\n Therapeutics, Inc. Secs. Litig., 843 F.3d 1257, 1275 (11th Cir. 2016)\n (“The omission of facts is actionable only to the extent that the ab-\n sence of those facts would, under the circumstances, render an-\n other reported statement misleading to the ‘reasonable investor, in\n the exercise of due care.’” (quoting FindWhat Inv. Grp. v.\n Findwhat.com, 658 F.3d 1282, 1305 (11th Cir. 2011)).\n In weighing materiality, we consider “the ‘total mix’ of in-\n formation available to a hypothetical reasonable investor” deter-\n mining his course of action, not just the information available “to\n the public at large.” SEC v. Morgan Keegan & Co., 678 F.3d 1233,\n 1248 (11th Cir. 2012) (citing Matrixx Initiatives, Inc. v. Siracusano,\n 563 U.S. 27, 38 (2011)). When we consider what inferences an in-\n vestor would draw from that information, we must keep in mind\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 39 of 211\n\n\n\n\n 22-13129 Opinion of the Court 39\n\n the Supreme Court’s caution that materiality “assessments are pe-\n culiarly ones for the trier of fact.” Id. at 1253 (quoting TSC Indus.,\n Inc. v. Northway, Inc., 426 U.S. 438, 450 (1976)); SEC v. Ginsburg, 362\n F.3d 1292, 1302 (11th Cir. 2004) (quoting TSC Indus., Inc., 426 U.S.\n at 450).\n Here, Spartan and Dilley misrepresented who solicited them\n to file FINRA applications for the issuers—Mirman and Rose. And\n Spartan and Dilley misrepresented why—Mirman and Rose\n wanted to create public shells and sell them. A reasonable investor\n “would attach importance” to each of these facts in making “an in-\n vestment decision.” Goble, 682 F.3d at 943.\n First, a reasonable investor would attach importance to Mir-\n man and Rose’s involvement in the issuers, including their hiring\n of Spartan to take the companies public. An investor would have\n wanted to know that Mirman and Rose, while not officers of the\n issuers, controlled the issuers and served as Spartan’s point people\n for filing the FINRA applications. SEC v. Blackburn, 15 F.4th 676,\n 681 (5th Cir. 2021) (reasoning that, “[e]ven though [an undisclosed\n control person] was not an officer of [a company whose stock sold\n over the counter], there [wa]s ‘little doubt that a reasonable inves-\n tor would have wanted to know the true identity’ of who was lead-\n ing the company” (citation omitted)). A company’s leadership\n “might . . . matter[] to investors for a number of reasons,” includ-\n ing whether that leadership engaged in past criminal conduct or\n simply has a “good, bad, or nonexistent” reputation. Id.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 40 of 211\n\n\n\n\n 22-13129 Opinion of the Court 40\n\n That Mirman and Rose enlisted Spartan to take the compa-\n nies public would matter to investors because Mirman and Rose\n were related to the issuers’ officers and shareholders, which Adams\n testified could “call into question the control of ownership.” It\n would also matter because when Mirman and Rose selected straw\n officers, they picked a friend or relative who “had [a] background\n in th[e] specific company”; for example, E-Waste’s purported busi-\n ness plan was to open an electronics recycling facility, so Rose\n picked an electrical engineer to be its director. An investor would\n want to know that these expert straw officers actually had no say\n in the issuers’ business plans and that nonexperts (Mirman and\n Rose) were taking them public. And an investor would want to\n know Mirman’s involvement, specifically, because of his past disci-\n pline—FINRA barred Mirman from associating with any FINRA\n member, which, as Mirman described it, meant “basically [that he]\n shouldn’t be involved in the . . . filing of [Form] 211s” at all.\n Second, a reasonable investor would attach importance to\n why Mirman and Rose solicited Spartan to file the applications.\n Mirman and Rose wanted public shells—their “job was to basically\n sell the shell” after Spartan secured FINRA clearance. Mirman and\n Rose’s plan to sell the companies as shells, rather than to actively\n operate them, was material because a plan to sell the company re-\n lates to its future. And “material facts include . . . those facts which\n affect the probable future of the company.” SEC v. Tex. Gulf Sulphur\n Co., 401 F.2d 833, 849 (2d Cir. 1968) (en banc).\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 41 of 211\n\n\n\n\n 22-13129 Opinion of the Court 41\n\n Spartan and Dilley argue that their misrepresentations\n weren’t material because it was “undisputed” that completed\n FINRA applications are not public, making their misrepresenta-\n tions inaccessible by anyone outside of FINRA. To that end, they\n analogize this case to our decision in Goble—where we held that a\n defendant’s recording of a sham transaction in its internal books,\n given to FINRA during an audit, wouldn’t have influenced an in-\n vestor’s investment decision. See 682 F.3d at 941, 943–44.\n Contrary to Spartan and Dilley’s suggestion, their misrepre-\n sentations on FINRA applications aren’t like the Goble defendant’s\n recording of a sham transaction in internal books. There was evi-\n dence that the completed FINRA applications here—including the\n cover letters—could’ve been accessed by the investing public. The\n acknowledgement that Dilley signed on each Form 211 certified\n that he “acknowledge[d] that copies of th[e] form, accompanying\n documents, and subsequent submissions made in connection with\n [the form]” could be given to the SEC, other agencies, and “to the\n public upon request.” So, for example, if a hypothetical investor\n wanted to access the FINRA application for Obscene Jeans before\n making an investment decision about it, there was evidence that it\n was possible for the investor to request the application, obtain it,\n 7\n and see Spartan and Dilley’s misrepresentations.\n\n\n 7\n Spartan and Dilley cite how Adams testified that the Form 211 applications\n and any related correspondence were not publicly available. But we view the\n facts in the SEC’s favor, see Chaney, 483 F.3d at 1227, and the jury was free to\n credit the terms of the Form 211’s acknowledgment over Adams’s testimony.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 42 of 211\n\n\n\n\n 22-13129 Opinion of the Court 42\n\n 3. Connection with the purchase or sale of securities\n Spartan and Dilley next argue that even if they made mate-\n rial misrepresentations on the FINRA applications, the misrepre-\n sentations were not “in connection with” the sale or purchase of\n securities. 17 C.F.R. § 240.10b-5(b). They contend that there was\n no evidence of a connection because their misrepresentations\n 8\n didn’t “coincide with” a securities transaction. They also argue\n that there was no connection because rule 10b-5(b) doesn’t apply\n to false statements “directed at FINRA.” Because Spartan and Dil-\n ley’s misrepresentations enabled the issuers’ stocks to be bought\n and sold, we conclude that a reasonable jury could ﬁnd they were\n made in connection with the sale or purchase of securities.\n The Supreme Court interprets the “in connection with” re-\n quirement “ﬂexibly,” Zandford, 535 U.S. at 819 (quoting Aﬃliated Ute\n Citizens of Utah v. United States, 406 U.S. 128, 151 (1972)), so we do\n as well, see Goble, 682 F.3d at 945–46. “The [Supreme] Court [has]\n made clear that a direct or close relation between the fraud and the\n securities transaction [i]s not required.” Smallwood v. Pearl Brewing\n\n Indeed, Spartan and Dilley’s codefendant—Eldred—testified that he thought\n that the Form 211 applications were “publicly available” based on the ac-\n knowledgment, just not “correspondence between [the defendants] and\n FINRA.”\n 8\n Spartan and Dilley also repeat their materiality argument that the statements\n couldn’t have impacted a securities transaction because completed Form 211\n applications aren’t publicly accessible. Because we’ve already explained why\n a jury could find that the forms were publicly accessible, we will not address\n the argument further.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 43 of 211\n\n\n\n\n 22-13129 Opinion of the Court 43\n\n Co., 489 F.2d 579, 595 (5th Cir. 1974) (citing Superintendent of Ins. v.\n Bankers Life & Cas. Co., 404 U.S. 6, 12–13 (1971)). Instead, “it is\n enough that the fraud ‘touch’ the sale in some manner,” Rudolph\n v. Arthur Anderson & Co., 800 F.2d 1040, 1046 (11th Cir. 1986) (quot-\n ing Bankers Life, 404 U.S. at 12–13), or “coincide” with it, Zandford,\n 535 U.S. at 822. “The requirement is satisﬁed, for example, if the\n purchase or sale of a security and the proscribed conduct are ‘part\n of the same fraudulent scheme.’” Rudolph, 800 F.2d at 1046 (quot-\n ing Alley v. Miramon, 614 F.2d 1372, 1378 n.11 (5th Cir. 1980)). Thus\n the requirement can be satisﬁed even if the misrepresentations ex-\n isted before any actual purchase or sale. See id. (“[I]f a scheme to\n defraud is formulated before a sale or purchase, the fraud when\n carried out is . . . ‘in connection’ with the security transaction even\n if the scheme does not culminate until after the transaction.” (cit-\n ing Brown v. Ivie, 661 F.2d 62, 65–66 (5th Cir. Unit B Nov. 1981);\n Smallwood, 489 F.2d at 594–95)). Indeed, “[i]n some instances,”\n there can be a rule 10b-5(b) violation “without an actual purchase\n or sale of securities” ever occurring. Goble, 682 F.3d at 946 (citing\n Grippo v. Perazzo, 357 F.3d 1218, 1223–24 (11th Cir. 2004)).\n There was suﬃcient evidence here that Spartan and Dilley’s\n misrepresentations “touch[ed]” the purchase or sale of securities.\n Rudolph, 800 F.2d at 1046. Adams testiﬁed that broker-dealers like\n Spartan “essentially open the door” to over-the-counter public in-\n vesting by obtaining FINRA clearance. Spartan obtained FINRA\n clearance for the issuers here by making false statements in the ap-\n plications—relied on by FINRA—which in turn enabled Spartan to\n initiate quotations in the issuers’ securities. And Spartan actually\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 44 of 211\n\n\n\n\n 22-13129 Opinion of the Court 44\n\n marketed those securities soon after obtaining FINRA clearance.\n The parties stipulated that it acted as each issuer’s exclusive market-\n maker for thirty days after obtaining FINRA clearance—holding it-\n self out to the market as ready to buy and sell the issuers’ securities.\n Without Spartan initiating and completing the Form 211 process\n for each Mirman/Rose issuer, Spartan wouldn’t have been able to\n market the securities and “the general public would not [have]\n be[en] able to invest” in them.\n Spartan and Dilley argue that there was insuﬃcient evidence\n supporting the “in connection with” element for two reasons.\n First, they contend that rule 10b-5(b)’s “in connection with” ele-\n ment doesn’t “encompass[] any step in the process of going public”;\n instead, citing the Supreme Court’s decision in Zandford, they say\n that it requires that “the violation and the sale of securities . . . , at\n a minimum, ‘coincide.’” They argue that a misrepresentation and\n securities transaction only “coincide” if the “misrepresentation . . .\n and [the] securities transaction . . . occur at the same time.” Spar-\n tan and Dilley contend that because their misrepresentations were\n made “well before any securities transaction,” those misrepresen-\n tations didn’t coincide with a securities transaction. Second, they\n argue that rule 10b-5(b) “was not targeted at misleading statements\n to regulators like FINRA, so [the connection element] does not en-\n compass [false statements] directed at FINRA.” We ﬁnd each of\n these arguments unpersuasive.\n First, while “[i]t is enough” for a connection “that the\n scheme to defraud and the sale of securities coincide,” Zandford,\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 45 of 211\n\n\n\n\n 22-13129 Opinion of the Court 45\n\n 535 U.S. at 822, Spartan and Dilley are mistaken that a discrete mis-\n representation and securities transaction must always occur at the\n same time” for the connection element to be satisﬁed. “[I]n con-\n nection with the purchase or sale of any security,” 17 C.F.R.\n § 240.10b-5, is broad. See Zandford, 535 U.S. at 819–20. And it is\n broad enough to cover a situation where—as here—a defendant\n makes a false statement intentionally calculated to facilitate the\n purchase or sale of a security on a later date. See Rudolph, 800 F.2d\n at 1046 (citing Brown, 661 F.2d at 65–66; Smallwood, 489 F.2d at 594–\n 95); see also Brown, 661 F.2d at 65–66 (holding that the plaintiﬀ, a\n corporate oﬃcer, alleged a connection where the defendants, other\n oﬃcers, convinced him to sign an agreement requiring that persons\n leaving the corporation sell their shares back to it—without telling\n the plaintiﬀ they planned to oust him seven days later); Smallwood,\n 489 F.2d at 594–95 (concluding that a letter’s misleading omissions\n about a proposed merger “touch[ed]” the actual merger, which\n happened forty-three days after the letter was mailed); SEC v. Pirate\n Inv. LLC, 580 F.3d 233, 248 (4th Cir. 2009) (discussing cases where\n defendant’s “intent to induce a securities transaction” supported\n connectivity). Zandford itself—where the Supreme Court held that\n a stockbroker’s misrepresentation and securities transactions “co-\n incide[d]”—involved an initial misrepresentation that the stock-\n broker would “conservatively invest” a man’s money, followed by a\n “series of transactions” completed “throughout [a two]-year pe-\n riod.” 535 U.S. at 815, 819–21.\n There may be cases where the alleged deceit is too remote\n to “touch” or “coincide” with the purchase or sale of securities.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 46 of 211\n\n\n\n\n 22-13129 Opinion of the Court 46\n\n But we need not resolve where that line should be drawn because\n the misrepresentations here were not so remote or “well before any\n securities transaction” as Spartan and Dilley argue. See Smallwood,\n 489 F.2d at 595 (“It is important that the standard be ﬂeshed out by\n a cautious case-by-case approach.”). The misrepresentations were\n an “integral part” of getting FINRA clearance to initiate quotations\n in the issuers’ stock. Cf. Brown, 661 F.2d at 65–66 (distinguishing\n cases where the connection between fraud and transactions were\n too remote because, in those cases, “the defendants . . . did not as\n an integral part of their scheme induce the plaintiﬀs to enter into\n [a] stock-retirement agreement” (citations omitted)).\n Second, although Spartan and Dilley made their statements\n directly to FINRA rather than face-to-face to an investor, the “in\n connection with” element doesn’t require that a misrepresentation\n be made directly to investors. See Graham v. SEC, 222 F.3d 994,\n 1001–03 (D.C. Cir. 2000) (concluding that fraud perpetrated on\n brokers who executed securities transactions, rather than the ac-\n tual investors, was in connection with the transactions); cf. United\n States v. Naftalin, 441 U.S. 768, 772–73 & n.4 (1979) (holding that “in\n the oﬀer or sale of any securities,” which Congress “ha[s] on occa-\n sion used . . . interchangeably” with “in connection with,” “does\n not require that the victim of [a] fraud be an investor”). In any\n event, despite Spartan and Dilley making their statements to\n FINRA, there was evidence that investors could have had access to,\n and could have relied on, the false statements.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 47 of 211\n\n\n\n\n 22-13129 Opinion of the Court 47\n\n * \n To summarize, there was suﬃcient evidence that Spartan\n and Dilley made materially false statements in connection with the\n purchase or sale of securities on each FINRA application for the\n Mirman/Rose issuers.\n Daniels/Harrison FINRA Applications\n (Spartan and Eldred)\n We now turn to the FINRA applications for the relevant\n Daniels/Harrison issuers—Top to Bottom and PurpleReal—which\n Spartan submitted and Eldred signed as the “principal of the firm\n responsible for th[e] . . . application[s].” The evidence showed that\n Spartan, through Eldred, made materially false statements about\n these issuers “in connection with the purchase or sale of . . . secu-\n rit[ies].” See 17 C.F.R. § 240.10b-5(b).\n First, there was evidence that Spartan and Eldred made false\n statements about Daniels’s and Harrison’s role in taking the com-\n panies public. Spartan and Eldred made a false statement about\n Daniels’s involvement and relationship with Spartan in the Top to\n Bottom application. The cover letter stated that the issuer’s presi-\n dent’s spouse introduced the company to Spartan, and that Spartan\n “d[id] not have any other relationship with” the company “or any\n of [its] other representatives.” But there was evidence that Spartan\n filed the Top to Bottom application at Daniels’s request—and Dan-\n iels was Top to Bottom’s secretary and treasurer. The parties stip-\n ulated that Daniels (and Harrison) “requested [that] Spartan file”\n the Form 211 for Top to Bottom. Indeed, Daniels’s “role in taking\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 48 of 211\n\n\n\n\n 22-13129 Opinion of the Court 48\n\n [Top to Bottom] public” was that “[h]e directed everything. [They]\n didn’t do anything without his direction [and] guidance.” There\n was also evidence that Spartan had other business with Daniels.\n The parties stipulated that Daniels (and Harrison) had solicited\n Spartan to file three earlier FINRA applications—those for Dinello,\n Court Document Services, and Quality Wallbeds.\n Similarly, Spartan and Eldred made a false statement about\n Spartan’s relationship with Harrison in the PurpleReal application.\n The cover letter stated that Spartan “d[id] not have any other rela-\n tionship with Diane Harrison” beyond (1) Harrison calling Eldred\n about taking the company public and (2) Harrison being “known\n to [Spartan] for many years.” When asked about this statement at\n trial, Eldred himself—Spartan’s majority owner—testified that he\n had done “other business with Diane Harrison.” Other evidence\n showed that their “other business” included a partnership arrange-\n ment to sell shell companies. Eldred emailed Harrison in 2010 pro-\n posing that “if a cleaned up shell is worth $300k, then that’s $100k\n for you when we sell it.” Eldred also wrote that “there [we]re ac-\n tually [one] or maybe [two] projects to do immediately,” and that\n he thought “we could add [one] or two additional per year.”\n And after the 2010 email, but before the 2014 PurpleReal ap-\n plication, Spartan and Harrison continued collaborating on “other\n business.” Spartan filed three other FINRA applications at Harri-\n son and Daniels’s request—those for Court Document Services,\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 49 of 211\n\n\n\n\n 22-13129 Opinion of the Court 49\n\n 9\n Quality Wallbeds, and Top to Bottom. In 2012, Harrison helped\n Eldred sell a company to Fan. Eldred emailed (from his Spartan\n address) Harrison to “get to work” on a contract for that transac-\n tion, which Fan wrote was the “beginning of a beautiful relation-\n ship.”\n Second, the false statements downplaying Daniels’s and\n Harrison’s involvement and relationships with Spartan were mate-\n rial because a reasonable investor would attach importance to how\n Spartan was working with Daniels and Harrison to take multiple\n issuers public, one after the other. Adams testified that when “cer-\n tain individuals . . . get market makers to file [Form] 211s for mul-\n tiple companies,” it raises a red flag that those individuals are en-\n gaging in “possible manipulation of the market.” Adams explained\n that it “is very, very uncommon” for “one individual [to] be be-\n hind . . . a [Form] 211 being filed for multiple issues.” Cangiano\n testified similarly, explaining that “hav[ing] numerous companies\n in the pipeline” is an “indication . . . that they’re in the business of\n selling . . . shells.” He further testified that it “indicates . . . that\n the[] companies are not being brought forward and, you know, op-\n erating as real companies but they’re being formed to be sold.”\n There was also evidence that the SEC has informed investors,\n through bulletins and proposed rules, that these indicators suggest\n that a shell company is being used to manipulate the market. From\n\n\n 9\n Their “other business” also included Spartan’s filing of the Dinello applica-\n tion, but the PurpleReal application did disclose that fact.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 50 of 211\n\n\n\n\n 22-13129 Opinion of the Court 50\n\n this, a reasonable investor familiar with these indicators could be-\n lieve that Spartan, Daniels, and Harrison were working together to\n maintain a shell factory and manipulate the over-the-counter mar-\n ket. That belief would “affect the [investor’s] desire . . . to buy, sell,\n or hold the compan[ies’] securities.” Tex. Gulf Sulphur Co., 401 F.2d\n at 849.\n That those indicators would’ve affected an investor’s deci-\n sion to buy, sell, or hold the securities Spartan brought to market\n at Daniels’s and Harrison’s behest is supported by the evidence of\n their “general reputation[s] . . . in the . . . industry.” Blackburn, 15\n F.4th at 681. The parties stipulated that Daniels and Harrison\n “were active in the reverse merger business and had consummated\n a number of reverse mergers prior for clients who wanted to enter\n the public market.” And Daniels, for his part, had a past forgery\n conviction.\n Third, there was evidence that the false statements in the\n Top to Bottom and PurpleReal applications were made “in connec-\n tion with the purchase or sale of . . . securit[ies].” 17 C.F.R.\n § 240.10b-5. Donnelly testified that the “business model” for all\n Daniels/Harrison issuers had three steps: (1) to take the company\n public by obtaining FINRA clearance; (2) to “immediately” dispose\n of all the company’s assets; and (3) to sell the remaining public shell\n to an investor—usually for reverse mergers with Fan’s “businesses\n in China.” That’s what happened once Spartan’s misrepresenta-\n tions secured Top to Bottom’s FINRA clearance. Donnelly ex-\n plained that once FINRA cleared Top to Bottom, its assets were\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 51 of 211\n\n\n\n\n 22-13129 Opinion of the Court 51\n\n sold off in “a fire sale” and the remaining public shell was “sold to\n an[] . . . investor that Daniels and Harrison found.” And Daniels\n and Harrison planned to do the same with PurpleReal once Spartan\n obtained its FINRA clearance—a sale that Spartan and Eldred’s mis-\n representations would’ve facilitated but for the SEC’s intervention.\n See Goble, 682 F.3d at 946 (“In some instances a [section] 10(b) fraud\n may occur even without an actual purchase or sale of securities.”\n (citing Grippo, 357 F.3d at 1223–24)); cf. Grippo, 357 F.3d at 1223\n (giving the example of “a broker who accepts payment for securi-\n ties that he never intends to deliver” (quoting Zandford, 535 U.S. at\n 819)). So, as to both Top to Bottom and PurpleReal, Spartan’s mis-\n representations—calculated to allow Daniels and Harrison to sell\n public shells—“‘touch[ed]’ the sale” of securities “in some man-\n ner.” Rudolph, 800 F.2d at 1046 (quoting Bankers Life, 404 U.S. at\n 12–13).\n Spartan and Eldred challenge the sufficiency of the evidence\n as to these issuers by making the same arguments that we’ve al-\n ready addressed in the context of the Mirman/Rose issuers. Spe-\n cifically, they contend that they didn’t make any statements in the\n Daniels/Harrison applications because they only repeated the issu-\n ers’ statements; that they didn’t have any duty to disclose omitted\n facts; that their misrepresentations weren’t material because they\n weren’t publicly accessible; and that the connection between their\n deceit and the purchase or sale of securities was too remote. These\n arguments fail for the same reasons we’ve already discussed.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 52 of 211\n\n\n\n\n 22-13129 Opinion of the Court 52\n\n We conclude that a reasonable jury could find that Spartan\n and Eldred made materially false statements in connection with the\n purchase or sale of securities as to Top to Bottom and PurpleReal.\n Statements for DTC Clearance (Island)\n We now turn to Island. The district court instructed the jury\n that the SEC alleged Island violated rule 10b-5(b) in three ways—\n by: (1) stating that issuers weren’t shell companies in applications\n filed for DTC clearance; (2) representing the restricted securities as\n “free trading,” and (3) omitting restrictive legends from the stock\n certificates. Island argues that there wasn’t enough evidence for\n the jury to find it liable under the first theory. Island also contends\n that the jury couldn’t have found it liable under the second or third\n theories because it found Island not liable on count fourteen, which\n alleged that Island offered to sell securities without any effective\n registration statements for them. We conclude that sufficient evi-\n dence supported Island’s liability under the first theory, which is\n 10\n enough to affirm the verdict as to Island on count six.\n\n\n\n 10\n To the extent the jury found Island liable on count six under the second and\n third theories, Island forfeited any argument that the jury’s finding was irrec-\n oncilable with its verdict on count fourteen. “A party must object to a verdict\n as inconsistent before the jury has been dismissed,” and “failure to object to\n an inconsistent verdict before the jury is excused forfeits the objection.” Reider\n v. Philip Morris USA, Inc., 793 F.3d 1254, 1259–60 (11th Cir. 2015) (citations\n omitted). Island didn’t raise its inconsistency objection before the jury was\n excused; instead, it raised the argument in its later renewed motion for judg-\n ment as a matter of law.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 53 of 211\n\n\n\n\n 22-13129 Opinion of the Court 53\n\n Island made a false statement to Penson—a DTC clearing\n firm—about Kids Germ’s shell status. Island employee Anna\n Krokhina, who “did a lot of the work with the guidance of [Island\n president] Dilley,” emailed Penson from her Island email address,\n stating “the company is not a shell.” There was evidence that this\n statement was false. Rose testified that Kids Germ “wasn’t operat-\n ing” and that the plan from the beginning was to sell it as a public\n shell, which Dilley knew.\n The misrepresentation that Kids Germ wasn’t a shell com-\n pany was material. There was evidence that the entire point of\n obtaining DTC clearance was to facilitate selling Kids Germ in a\n reverse merger. Rose informed Dilley of a potential buyer for the\n Kids Germ shell on the same day that Dilley told him Krokhina\n would file a DTC application. In a January 4, 2010 email exchange\n (on the same day FINRA cleared Kids Germ), Rose asked Dilley,\n “Do you want to speak to the atty interested in the company?” and\n “What do you recommend the company do with the DTC know\n [sic] the route it is taking?” Dilley responded that he could call the\n interested attorney and that they “should apply for DTC eligibil-\n ity[—]Anna [Krokhina] can get that going.” Rose testified that\n “atty” meant “the attorney for the company, whoever was buying\n it at the time.” That the attorney was someone who “wanted to\n purchase the company and wanted to make sure that it’s going to\n happen” was, as Rose explained, “the only thing [he] could think\n of.” This actual plan to use Kids Germ for a reverse merger “af-\n fect[ed] the probable future of the company.” Tex. Gulf Sulphur Co.,\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 54 of 211\n\n\n\n\n 22-13129 Opinion of the Court 54\n\n 401 F.2d at 849; see also Ginsburg, 362 F.3d at 1302 (“A merger is an\n event of considerable magnitude to an investor . . . .”).\n And the misrepresentation was in connection with the pur-\n chase or sale of securities. Based on Dilley and Rose’s email ex-\n change, a reasonable jury could find Island’s misrepresentations to\n Penson were calculated to facilitate Kids Germ’s sale to the “atty.”\n In February 2010—shortly after obtaining DTC eligibility—Kids\n Germ was sold in a reverse merger that Island assisted as the trans-\n fer agent.\n Island argues that insufficient evidence showed the “not a\n shell” statement violated rule 10b-5(b) for two reasons. First, it ar-\n gues that Krokhina told Penson the truth. It contends Kids Germ\n wasn’t a shell because its SEC filings showed that the company\n “had ‘nominal’ assets and operations.” They specifically cite how\n Rose testified about a Kids Germ 2009 Form 10-K filing with the\n SEC, where he “had Kids Germ report” to the SEC “that it had\n [$25,254 in] cash” assets and that it had “spent approximately\n $62,000 over the year in its operations.” Second, it argues that the\n misrepresentation wasn’t in connection with the purchase or sale\n of securities because it was made in “nonpublic communications”\n to Penson, rather than to any investors. They characterize the\n DTC application as “but one step in the process” too remote from\n the purchase or sale of a security.\n As for Island’s first argument about the Form 10-K, that fil-\n ing doesn’t conclusively establish that Kids Germ maintained cash\n assets and active operations. There was evidence that the Form 10-\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 55 of 211\n\n\n\n\n 22-13129 Opinion of the Court 55\n\n K itself misrepresented Kids Germ’s assets and operations. The par-\n ties stipulated that the issuers’ registration statements “and subse-\n quent SEC filings . . . falsely depicted the issuers as actively pursu-\n ing a variety of business plans, when the only plan from the onset\n was for the compan[ies] to be sold as public vehicles.” And Rose\n repeatedly testified that Kids Germ was a shell company.\n Island’s second argument fares no better. Even if the “not a\n shell” statement wasn’t publicly visible to investors, Island’s mis-\n representation wasn’t too remote from the sale of Kids Germ’s se-\n curities because, as Dilley himself testified, Island sought Kids\n Germ’s DTC eligibility to “make[] the transaction easier in the\n event of a sale or purchase.” He viewed obtaining DTC eligibility\n after FINRA clearance as important for “brokers that would buy or\n sell the stock,” acknowledging that DTC eligibility was necessary\n to “allow[] for electronic settlement of any purchase or sales in the\n marketplace.” Cangiano similarly testified that obtaining Kids\n Germ’s DTC clearance was “important” to “the route it [wa]s tak-\n ing”—being sold in a reverse merger. He explained that it was “im-\n portant” to facilitate that merger because getting DTC eligibility\n allows for convenient, less expensive public trading—“the whole\n process [through DTC] is electronic.” Without DTC clearance,\n Cangiano explained further, a security would be “ex-clearing,”\n which means that trading it would require “physical delivery of the\n shares and a physical check.” Critically, he testified that “no one\n would buy or sell a security that’s ex-clearing usually because it’s\n very expensive to do that.”\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 56 of 211\n\n\n\n\n 22-13129 Opinion of the Court 56\n\n So, in short, there was sufficient evidence that Island made\n a materially false statement to Penson about at least one issuer’s\n shell status. Because that misrepresentation was material and in\n connection with the purchase or sale of securities, a reasonable jury\n could find Island liable on count six. 11\n Remedies\n The defendants next argue that, even if sufficient evidence\n supported the jury’s verdict, the district court erred when it (1) or-\n dered Island to disgorge its ill-gotten gains to the Treasury and\n (2) imposed civil penalties on the defendants.\n We review for abuse of discretion a district court’s award of\n disgorgement, civil penalties, and injunctive relief under the secu-\n rities laws, see SEC v. Diversified Corp. Consultant Grp., 378 F.3d 1219,\n 1228 (11th Cir. 2004), including the “amount of a[ny] monetary\n remedy.” SEC v. Warren, 534 F.3d 1368, 1369 (11th Cir. 2008); see\n also SEC v. Monterosso, 756 F.3d 1326, 1337–38 (11th Cir. 2014). We\n\n\n 11\n After oral argument, we ordered the parties to brief what impact, if any, the\n Supreme Court’s recent decision in Macquarie Infrastructure Corp. v. Moab Part-\n ners, L.P. had on this appeal. 601 U.S. 257 (2024). Macquarie held that “pure\n omissions” are not actionable under SEC rule 10b-5(b). Id. at 266. “A pure\n omission occurs when a speaker says nothing[.]” Id. at 263. Pure omissions\n are distinct from “[h]alf-truths,” which are “representations that state the truth\n only so far as it goes, while omitting critical qualifying information.” Id. (quot-\n ing Universal Health Servs., Inc. v. United States, 579 U.S. 176, 188 (2016)). Half-\n truths are covered by section 10b-5(b). Id. Because, in the end, our decision\n rests on the defendants’ misstatements and half-truths, and not on any pure\n omissions by the defendants, Macquarie does not affect our analysis.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 57 of 211\n\n\n\n\n 22-13129 Opinion of the Court 57\n\n review de novo the timeliness of these remedies under the govern-\n ing statutes of limitations. See Berman v. Blount Parrish & Co., 525\n F.3d 1057, 1058 (11th Cir. 2008).\n The defendants argue that the district court ordered reme-\n dies based on conduct that was time-barred. Beyond timeliness,\n they make several disgorgement- and penalty-specific arguments.\n 12\n We address their contentions below.\n Statute of Limitations\n We begin with the defendants’ timeliness argument. They\n contend the district court erred when it “ordered sanctions based\n on . . . time-barred conduct,” citing 28 U.S.C. section 2462. It did\n not.\n The defendants concede on appeal, as they did in the district\n court, that the civil penalties claims for five issuers—Envoy Group,\n Changing Technologies, First Xeris, Top to Bottom, and Purple-\n Real—were timely under 28 U.S.C. section 2462’s five-year statute\n of limitations. The defendants did not request summary judgment\n based on timeliness as to those five issuers.\n The defendants’ concession is key because these were the\n only issuers that the district court relied on when it ordered the\n\n\n 12 We reject one of the defendants’ conclusory arguments at the outset—that\n\n the district court violated due process by “order[ing] remedies based on con-\n duct that the jury found did not violate the law.” The district court based the\n ordered remedies on the defendants’ false statements in violation of count six,\n and not on any violation alleged in other counts.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 58 of 211\n\n\n\n\n 22-13129 Opinion of the Court 58\n\n civil penalties. The court cited the SEC’s request to “assess penal-\n ties for three ‘violations’ against . . . Dilley,” which the SEC based\n on Envoy Group, Changing Technologies, and First Xeris. And it\n cited the SEC’s request to “assess penalties for . . . two violations\n against . . . Eldred,” which the SEC based on Top to Bottom and\n PurpleReal. Based on the defendants’ concession, the district\n court’s civil penalties were timely.\n All other relief granted by the district court—the disgorge-\n ment, penny stock bar, and injunction—was timely as well. Con-\n gress enacted the NDAA while this case was pending, and we apply\n an amended statute of limitations if Congress “clearly manifest[s]\n an intent to have an amended limitations statute apply to existing\n causes of action.” Sarfati v. Wood Holly Assocs., 874 F.2d 1523, 1525\n (11th Cir. 1989). Under section 21(d)(8), as enacted through the\n NDAA, see Pub. L. No. 116-283, section 6501, 134 Stat. at 4625–26,\n the statute of limitations applicable to a “claim for any equitable\n remedy” is ten years. 15 U.S.C. § 78u(d)(8)(B). A ten-year period\n also controls claims for “[d]isgorgement” based on violations of\n section 10(b) or those that involve scienter—which is what count\n six alleged. Id. § 78u(d)(8)(A)(ii)(I), (IV).\n Congress “clearly manifest[ed]” its intent for these new, Ex-\n change Act-specific provisions—not 28 U.S.C. section 2462—to ap-\n ply to this action while it was pending. See Sarfati, 874 F.2d at 1525.\n The NDAA provided that these amendments “appl[ied] with re-\n spect to any action or proceeding that [wa]s pending on . . . the date\n of enactment.” NDAA, Pub. L. No. 116-283, § 6501(b), 134 Stat. at\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 59 of 211\n\n\n\n\n 22-13129 Opinion of the Court 59\n\n 4626. Island does not dispute that the injunctive relief, penny stock\n bar, and disgorgement—based on statements about the Mir-\n man/Rose issuers that occurred, at the earliest, after December\n 2009—are timely under the new statute of limitations.\n So, in sum, the statutes of limitations did not bar any of the\n relief ordered by the district court. 13\n Disgorgement\n Disgorgement “is a form of ‘[r]estitution measured by the\n defendant’s wrongful gain.’” Kokesh v. SEC, 581 U.S. 455, 458–59\n (2017) (quoting Restatement (Third) of Restitution & Unjust En-\n richment § 51, cmt. a, at 204 (Am. L. Inst. 2010)). The district court\n ordered Island to disgorge $114,520 to the Treasury, plus\n $39,874.05 in prejudgment interest. Island appeals the disgorge-\n ment award on four different grounds.\n Island first argues that the Exchange Act bars a district court\n from ordering disgorgement to the Treasury. It contends that be-\n cause disgorgement is an equitable remedy and Exchange Act sec-\n tion 21(d)(5) requires that “any equitable relief” be “for the benefit\n\n 13\n Because the district court relied only on timely conduct when it ordered\n remedies, we need not resolve the defendants’ argument that the district court\n erred by applying the continuing violations doctrine at summary judgment,\n or that it relied on untimely conduct when it denied the rule 50(b) motion.\n Nor do we resolve their argument that the district court’s order denying sum-\n mary judgment is appealable after a full trial on the merits under Dupree v.\n Younger. See 598 U.S. 729, 731 (2023) (holding that “a purely legal issue re-\n solved at summary judgment” is reviewable after trial even if not raised in a\n post-trial motion).\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 60 of 211\n\n\n\n\n 22-13129 Opinion of the Court 60\n\n of investors,” 15 U.S.C. § 78u(d)(5), a district court may only order\n disgorgement if it orders that the money be returned to harmed\n investors. Second, although it conceded that repaying harmed in-\n vestors was infeasible in this case, Island argues that the equities\n didn’t support ordering disgorgement to the Treasury and thus the\n district court abused its discretion. Third, Island asserts that “there\n was no proof that [its profits] were causally related to the . . . viola-\n tion[s] found by the jury.” And fourth, Island maintains that the\n SEC didn’t satisfy its burden of reasonably approximating the ill-\n gotten gains. We disagree.\n 1. Disgorgement to the Treasury\n We begin with Island’s argument that the Exchange Act\n does not authorize a district court to order disgorgement to the\n Treasury. We conclude that it does.\n “Initially, the only statutory remedy available to the SEC in\n an enforcement action was an injunction.” Kokesh, 581 U.S. at 458.\n The original Exchange Act, in 1934, did not expressly authorize dis-\n trict courts to award monetary remedies like civil penalties or dis-\n gorgement. See id.; SEC v. Hallam, 42 F.4th 316, 327–30 (5th Cir.\n 2022) (outlining history of available remedies under the Exchange\n Act, explaining that “[t]he concept of ‘disgorgement’ as a securities\n remedy is essentially the product of a runaway mutation”). How-\n ever, we and other circuits held that district courts could order dis-\n gorgement “as an ancillary remedy in the exercise of . . . general\n equity powers.” Tex. Gulf Sulphur Co., 446 F.2d at 1307 (citation\n omitted); see also Kokesh, 581 U.S. at 458–59 (discussing how in the\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 61 of 211\n\n\n\n\n 22-13129 Opinion of the Court 61\n\n 1970s, courts began awarding disgorgement in securities actions\n “as an exercise of their ‘inherent equity power[s]’” (citation omit-\n ted)); SEC v. Blatt, 583 F.2d 1325, 1335 (5th Cir. 1978) (“The trial\n court acted properly within its equitable powers in ordering [the\n defendant] to disgorge the profits that he obtained by fraud.”).\n Congress later expanded the category of remedies the SEC\n may seek in enforcement actions. Congress amended the Ex-\n change Act in 1990 to authorize civil penalties by adding sec-\n tion 21(d)(3), titled “[m]oney penalties in civil actions.” Securities\n Enforcement Remedies and Penny Stock Reform Act of 1990, Pub.\n L. No. 101-429, § 201, 104 Stat. 931 (1990). And in 2002, Congress\n added section 21(d)(5), which provides that “[i]n any action”\n brought by the SEC, the SEC may seek, and district courts may\n grant, “any equitable relief that may be appropriate or necessary\n for the benefit of investors.” 15 U.S.C. § 78u(d)(5); see Hallam, 42\n F.4th at 330. But even after these amendments, the SEC’s ability\n to seek certain remedies under the Exchange Act remained uncer-\n tain. The Exchange Act does not define “equitable relief,” and\n “courts have had to consider which remedies the SEC may impose\n as part of its [section 21(d)(5)] powers.” Liu, 591 U.S. at 75.\n The Supreme Court faced that question in Liu. There, the\n Supreme Court held that “equitable relief,” as used in sec-\n tion 21(d)(5), includes “a disgorgement award that does not exceed\n a wrongdoer’s net profits and is awarded for victims.” Id. Citing\n the provision’s “for the benefit of investors” language, the Court\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 62 of 211\n\n\n\n\n 22-13129 Opinion of the Court 62\n\n concluded that “[t]he equitable nature of the profits remedy gener-\n ally requires the SEC to return a defendant’s gains to wronged in-\n vestors for their benefit.” Id. at 88 (“[T]he SEC’s equitable, profits-\n based remedy must do more than simply benefit the public at\n large . . . . To hold otherwise would render meaningless the latter\n part of [section] 78u(d)(5).”). The Court did “not address” the\n “open question” of whether “the SEC’s practice of depositing dis-\n gorgement funds with the Treasury” is relief “for the benefit of in-\n vestors.” Id. at 88–89 (emphasis added).\n About seven months after Liu, Congress again amended sec-\n tion 21(d) through the NDAA. Section 21(d)(3), which Congress\n newly labeled “[c]ivil money penalties and authority to seek dis-\n gorgement,” now provides that the SEC “may bring an action in a\n United States district court to seek, and the court shall have juris-\n diction to[,] . . . require disgorgement under paragraph [(d)](7) of\n any unjust enrichment by the person who received such unjust en-\n richment as a result of such violation.” 15 U.S.C. § 78u(d)(3),\n (d)(3)(A)(ii). Section 21(d)(7), which Congress also added after Liu,\n provides that “[i]n any action or proceeding brought by the [SEC]\n under any provision of the securities laws, the [SEC] may seek, and\n any [f ]ederal court may order, disgorgement.” Id. § 78u(d)(7).\n Congress did not amend section 21(d)(5).\n Consistent with the text of the new disgorgement provision,\n we hold that in a civil enforcement action brought by the SEC un-\n der the Exchange Act, the SEC may seek, and a district court may\n order, that a defendant disgorge its ill-gotten gains to the Treasury\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 63 of 211\n\n\n\n\n 22-13129 Opinion of the Court 63\n\n under sections 21(d)(3)(A)(ii) and (d)(7)—even if directing the\n money to the Treasury wouldn’t “be appropriate or necessary for\n the beneﬁt of investors” under section 21(d)(5). Here’s why.\n Our starting point is the statutory text itself. Korman v. HBC\n Fla., Inc., 182 F.3d 1291, 1295 (11th Cir. 1999) (“The first, and most\n important, step in statutory construction is to examine the lan-\n guage of the [statute] itself.”). Looking to the text here, sections\n 21(d)(3)(A)(ii) and (d)(7) are unconditional—both allow the SEC to\n seek, and a district court to order, disgorgement. Sec-\n tion 21(d)(3)(A)(ii) allows the SEC “to seek . . . disgorgement . . . of\n any unjust enrichment.” 15 U.S.C. § 78u(d)(3)(A)(ii). Sec-\n tion 21(d)(7) repeats that the SEC “may seek . . . disgorgement.”\n Id. § 78u(d)(7). In no way does either provision limit where or to\n whom those profits must go. We must take these provisions as\n Congress wrote them; we cannot rewrite sections 21(d)(3)(A)(ii)\n and (d)(7) to include an investor-benefit limitation where Congress\n did not provide for one. Korman, 182 F.3d at 1295 (“We . . . neither\n add words to nor subtract them from [a statute].”).\n The statutory context confirms that the Exchange Act\n doesn’t limit who can be the recipient of disgorged profits. See\n Black Warrior Riverkeeper, Inc. v. Black Warrior Minerals, Inc., 734\n F.3d 1297, 1302–03 (11th Cir. 2013) (explaining that “statutory con-\n struction is a ‘holistic endeavor’” and courts must “fit, if possible,\n all parts into a harmonious whole” (citations omitted)). Unlike sec-\n tions 21(d)(3)(A)(ii) and (d)(7), section 21(d)(5) includes express lim-\n iting language. A district court may grant “any equitable relief”\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 64 of 211\n\n\n\n\n 22-13129 Opinion of the Court 64\n\n under the Exchange Act if the relief is “appropriate or necessary for\n the benefit of investors.” 15 U.S.C. § 78u(d)(5). While sec-\n tion 21(d)(5)’s investor-benefit limitation might foreclose ordering\n disgorgement to the Treasury, cf. Liu, 591 U.S. at 88 (“The equita-\n ble nature of the profits remedy generally requires the SEC to re-\n turn a defendant’s gains to wronged investors for their benefit.”),\n Congress omitted any investor-benefit language from sections\n 21(d)(3)(A)(ii) and (d)(7). We presume sections 21(d)(3)(A)(ii) and\n (d)(7) lack the investor-benefit requirement Congress provided for\n in section 21(d)(5). “When Congress includes particular language\n in one section of a statute but omits it in another section of the\n same Act, we generally take the choice to be deliberate.” Badgerow\n v. Walters, 596 U.S. 1, 11 (2022) (cleaned up); see also State Farm Fire\n & Cas. Co. v. U.S ex rel. Rigsby, 580 U.S. 26, 34 (2016) (“Congress’\n use of ‘explicit language’ in one provision ‘cautions against infer-\n ring’ the same limitation in another provision.” (quoting Marx v.\n Gen. Revenue Corp., 568 U.S. 371, 384 (2013)); Jones v. Governor of Fla.,\n 975 F.3d 1016, 1042 (11th Cir. 2020) (en banc) (“A material variation\n in language suggests a variation in meaning.”).\n Island recognizes that we must read sections 21(d)(3)(A)(ii)\n and (d)(7) in their proper context rather than in isolation. But it\n insists that because courts have historically considered disgorge-\n ment an equitable remedy, the only harmonious interpretation is\n that disgorgement ordered under section 21(d)(7) must still satisfy\n section 21(d)(5)’s investor-benefit requirement for “any equitable\n relief.” 15 U.S.C. § 78u(d)(5). Island maintains that Congress’s ad-\n dition of sections 21(d)(3)(A)(ii) and (d)(7) simply “ma[d]e explicit\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 65 of 211\n\n\n\n\n 22-13129 Opinion of the Court 65\n\n that which had previously only been implicit”—“that disgorge-\n ment is an available equitable remedy.” If we do not read the Ex-\n change Act to bar ordering disgorgement to the Treasury, Island\n contends, then we would render section 21(d)(5)’s investor-benefit\n requirement superfluous. Island points to one representative’s pre-\n Liu statement in the legislative history to support its interpretation.\n Contrary to Island’s suggestion, reading sec-\n tions 21(d)(3)(A)(ii) and (d)(7) to allow ordering disgorgement to\n the Treasury is harmonious with section 21(d)(5). Section 21(d)(5)\n is a general provision—it authorizes district courts to grant “any\n equitable relief” that benefits investors. 15 U.S.C. § 78u(d)(5). But\n sections 21(d)(3)(A)(ii) and (d)(7), which lack the investor-benefit\n requirement, are provisions specific to one remedy—“disgorge-\n ment.” Id. § 78u(d)(3)(A)(ii) (providing, in subsection labeled\n “[c]ivil money penalties and authority to seek disgorgement,” that\n the SEC may seek “disgorgement”); id. § 78u(d)(7) (providing, in\n subsection labeled “[d]isgorgement,” that the SEC may seek “dis-\n gorgement”). To read those provisions harmoniously, we simply\n treat the specific disgorgement authorization as an exception to the\n general provision governing all other equitable relief. See RadLAX\n Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 644–45\n (2012) (“It is a commonplace of statutory construction that the spe-\n cific governs the general.” (cleaned up)).\n Our holding that the Exchange Act allows ordering dis-\n gorgement into the Treasury doesn’t render section 21(d)(5)’s in-\n vestor-benefit requirement superfluous or ineffective. Construing\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 66 of 211\n\n\n\n\n 22-13129 Opinion of the Court 66\n\n a specific provision as an exception to a general provision “does not\n mean that the . . . specific provision voids the general provision.”\n Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation\n of Legal Texts, § 28, at 184 (2012). “[A]ny equitable relief” ordered\n under the Exchange Act—except disgorgement—must still “be ap-\n propriate or necessary for the benefit of investors.” 15 U.S.C.\n § 78u(d)(5). Thus, there are still circumstances where the investor-\n benefit requirement applies. See RadLAX Gateway Hotel, LLC, 566\n U.S. at 645–46 (discussing how applying the general/specific canon\n can avoid introducing superfluity into a text).\n Section 21(d)(8)—which includes the Exchange Act’s new\n statute-of-limitations provisions—also illustrates how the new dis-\n gorgement provisions operate as exceptions to general ones gov-\n erning other types of equitable relief. Under section 21(d)(8)(B),\n titled “[e]quitable remedies,” the SEC must bring “a claim for any\n equitable remedy . . . not later than [ten] years after” the claim ac-\n crues. 15 U.S.C. § 21(d)(8)(B). But section 21(d)(8)(A), titled “[d]is-\n gorgement,” allows the SEC to “bring a claim for disgorgement”\n within ten years only for four types of violations. Id.\n § 21(d)(8)(A)(ii). For all other types of violations, the SEC must\n “bring a claim for disgorgement” within five years. Id.\n § 21(d)(8)(A)(i). That the statute requires the SEC to enforce cer-\n tain disgorgement claims sooner than claims seeking other equita-\n ble relief does not mean sections 21(d)(8)(A) and (B) are necessarily\n irreconcilable. See RadLAX Gateway Hotel, LLC, 566 U.S. at 644–45.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 67 of 211\n\n\n\n\n 22-13129 Opinion of the Court 67\n\n It is Island’s interpretation that renders parts of the Exchange\n Act superfluous and ineffective. See Black Warrior Riverkeeper, Inc.,\n 734 F.3d at 1303 (“[A] court should . . . avoid interpreting a provi-\n sion in a way that would render other provisions of the statute su-\n perfluous.”). We must presume that Congress “intend[ed] its\n [post-Liu] amendment[s] to have real and substantial effect.” Intel\n Corp. Inv. Pol’y Comm. v. Sulyma, 589 U.S. 178, 189 (2020) (quoting\n Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 258–59\n (2004)). But under Island’s theory, Congress added sec-\n tions 21(d)(3)(A)(ii) and (d)(7) to settle an issue that Liu had already\n settled once and for all—whether the SEC can seek disgorgement\n 14\n under section 21(d)(5). See Liu, 591 U.S. at 74–75 (“The Court\n holds today that a disgorgement award that does not exceed a\n wrongdoer’s net profits and is awarded for victims is equitable re-\n lief permissible under [section] 78u(d)(5).”); cf. Ryan v. Gonzales, 568\n\n\n 14\n The parties have directed us to two Second Circuit cases as supplemental\n authorities: SEC v. Ahmed, 72 F.4th 379 (2d Cir. 2023), and SEC v. Govil, 86 F.4th\n 89 (2d Cir. 2023). Ahmed “conclude[d] that disgorgement under [section]\n 78u(d)(7) must comport with traditional equitable limitations as recognized in\n Liu.” 72 F.4th at 396. And Govil, applying Ahmed, held that a district court\n abuses its discretion if it orders disgorgement under section 78u(d)(7) without\n first finding “that . . . investors suffered pecuniary harm” because “disgorge-\n ment must be ‘awarded for victims.’” 86 F.4th at 93–94 (quoting Liu, 591 U.S.\n at 75). Island argues that these two cases establish that the disgorgement or-\n dered here was inequitable. But neither case spoke to the question Liu ex-\n pressly left “open”—whether ordering disgorgement to the Treasury is “for\n the benefit of investors” if “the wrongdoer’s profits cannot practically be dis-\n bursed to the victims.” Liu, 591 U.S. at 88–89 (quoting 15 U.S.C. § 78u(d)(5)).\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 68 of 211\n\n\n\n\n 22-13129 Opinion of the Court 68\n\n U.S. 57, 66 (2013) (“We normally assume that, when Congress en-\n acts statutes, it is aware of relevant judicial precedent.” (citation\n omitted)).\n Finally, we reject Island’s reliance on a lone congressman’s\n pre-Liu statement to interpret sections 21(d)(3)(A)(ii) and (d)(7)’s\n unambiguous text. See CSX Corp. v. United States, 18 F.4th 672, 680\n (11th Cir. 2021) (“To the extent that legislative history is useful at\n all in statutory interpretation, ‘we do not consider legislative his-\n tory when the text is clear.’” (citation omitted)). These provisions\n unambiguously allow the SEC to seek, and district courts to order,\n disgorgement—without any requirement that it benefit investors.\n 2. The balance of equities\n We next address whether the district court abused its equi-\n table discretion in ordering disgorgement to the Treasury because\n repaying harmed investors was infeasible. We conclude that the\n district court didn’t abuse its discretion.\n “Equity courts have routinely deprived wrongdoers of their\n net profits from unlawful activity[.]” Liu, 591 U.S. at 79. That prac-\n tice “reflect[s] a foundational principle: ‘[I]t would be inequitable\n that [a wrongdoer] should make a profit out of his own wrong[.]’”\n Id. at 79–80 (quoting Root v. Ry. Co., 105 U.S. 189, 207 (1882)); see\n also Restatement (Third) of Restitution & Unjust Enrichment § 51,\n cmt. e (Am. L. Inst. 3d ed. Oct. 2024 Update) (“The object of the\n disgorgement remedy—to eliminate the possibility of profit from\n conscious wrongdoing—is one of the cornerstones of the law of\n restitution and unjust enrichment.”).\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 69 of 211\n\n\n\n\n 22-13129 Opinion of the Court 69\n\n Relying on that foundational principle, we have affirmed\n judgments directing wrongdoers to pay ill-gotten gains to the\n Treasury when compensating harmed parties was infeasible. We\n first did so in Burk Builders, Inc. v. Wirtz—a Fair Labor Standards\n Act case where an employer argued any unlawfully retained wages\n that could “not be delivered to the [entitled employees] should re-\n main with it and become its property.” 355 F.2d 451, 452–53 (5th\n Cir. 1966). We later affirmed another judgment directing disgorge-\n ment to the Treasury in FTC v. Gem Merch. Corp.—a case arising\n under the Federal Trade Commission Act. 87 F.3d 466, 470 (11th\n Cir. 1996), abrogated on other grounds, AMG Cap. Mgmt., LLC v. FTC,\n 593 U.S. 67, 75 (2021) (holding that section 13(b) of the FTC Act\n “does not authorize . . . court-ordered monetary relief”). In each\n case, we concluded that “equitable principles would not suggest\n that [the wrongdoer wa]s entitled to the funds,” Burk Builders, Inc.,\n 355 F.2d at 453, and “because it is not always possible to distribute\n the money to the victims . . . , a court may order the funds paid to\n the United States Treasury.” Gem Merch. Corp., 87 F.3d at 470; ac-\n cord FEC v. Craig for U.S. Senate, 816 F.3d 829, 847–48 (D.C. Cir.\n 2016) (“[C]ourts of appeals have often affirmed the propriety of di-\n recting disgorged funds to the U.S. Treasury.”); Off. Comm. of Unse-\n cured Creditors of WorldCom, Inc. v. SEC, 467 F.3d 73, 81 (2d Cir.\n 2006) (“‘[I]t remains within the [district] court’s discretion to deter-\n mine how and to whom the money will be distributed,’ and if the\n district court determines that no party is entitled to receive the dis-\n gorged profits, they will be paid to the United States Treasury[.]”\n (citations omitted)).\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 70 of 211\n\n\n\n\n 22-13129 Opinion of the Court 70\n\n The district court didn’t abuse its broad discretion in apply-\n ing the same foundational principle to the Exchange Act. Cf. Porter\n v. Warner Holding Co., 328 U.S. 395, 398 (1946) (explaining that a\n district court’s “equitable powers assume a[] . . . broad[] and more\n flexible character” in proceedings where “the public interest is in-\n volved”). The SEC and the defendants stipulated that “[a] distribu-\n tion to investors of the disgorgement amount requested would be\n infeasible.” That stipulation presented the district court with two\n options: either let Island keep its ill-gotten gains, or direct that the\n money be paid to the Treasury. The district court reasonably\n found that it would be more equitable to direct the money be paid\n to the Treasury because it “would be inequitable that [Island]\n should make a profit out of [its] own wrong.” See Liu, 591 U.S. at\n 79–80 (quoting Root, 105 U.S. at 207).\n Island argues the district court abused its discretion because\n “equity requires clean hands,” and the $114,520 in profits at issue\n here was paid by fraudsters—Mirman and Rose. The “clean hands”\n doctrine recognizes that “‘he who comes into equity must come\n with clean hands,’ and a party . . . ‘tainted with . . . bad faith’ ‘closes\n the doors of a court of equity.’” Arkin v. Pressman, Inc., 38 F.4th\n 1001, 1012 (11th Cir. 2022) (quoting Precision Instrument Mfg. Co. v.\n Auto. Maint. Mach. Co., 324 U.S. 806, 814 (1945)). But Island doesn’t\n explain how the fraudsters’ unclean hands makes it fair to allow Is-\n land to profit from illegal conduct. “[E]quitable principles [do] not\n suggest that [Island] is entitled to the funds” merely because there\n are no investors that can be feasibly reimbursed. See Burk Builders,\n Inc., 355 F.2d at 453.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 71 of 211\n\n\n\n\n 22-13129 Opinion of the Court 71\n\n 3. Causation\n Island’s third challenge to the disgorgement award is that\n the SEC never showed a “causal connection” between the fees that\n Mirman and Rose paid Island and its wrongdoing. Specifically, Is-\n land contends that the SEC didn’t show causation because the jury\n found that it didn’t “scheme” with Mirman and Rose to commit\n securities fraud. But we conclude that the SEC showed a causal\n link between the fees and wrongdoing.\n Spartan and Island, through Dilley and Eldred, worked in\n tandem—they were “sister companies” with common ownership,\n office space, equipment, and employees. The evidence shows that\n they marketed themselves as a one-stop shop to get shell compa-\n nies quoted through Spartan and then transferred through Island.\n Mirman even testified that Dilley and Eldred told him that “in or-\n der for [him] to deal with their broker-dealer [Spartan], they would\n want [him] to deal with their transfer agent [Island] as well.” And\n as we’ve already discussed, this one-stop shop’s shared employees\n repeatedly lied to take Mirman and Rose’s companies public and\n help sell them—which is what Mirman and Rose paid for. Island\n was ultimately each Mirman/Rose shell’s transfer agent, with the\n exception of Envoy Group (an issuer that the district court disre-\n garded when it ordered disgorgement).\n 4. Reasonable approximation\n Lastly, Island argues that the SEC’s approximation of Is-\n land’s ill-gotten gains was “rife with errors” because it did not ex-\n clude legitimate expenses. The company also argues that, because\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 72 of 211\n\n\n\n\n 22-13129 Opinion of the Court 72\n\n the SEC didn’t satisfy its burden of reasonably approximating the\n gains, the district court abused its discretion by shifting the burden\n to Island to prove the SEC’s estimate was unreasonable. We con-\n clude that the district court didn’t abuse its discretion.\n “The SEC is entitled to disgorgement upon producing a rea-\n sonable approximation of a defendant’s ill-gotten gains.” SEC v.\n Calvo, 378 F.3d 1211, 1217 (11th Cir. 2004). Ordering disgorgement\n of ill-gotten gains isn’t “limited to confiscation of trading profits.”\n SEC v. Blavin, 760 F.2d 706, 713 (6th Cir. 1985); see also SEC v. Wash.\n Cnty. Util. Dist., 676 F.2d 218, 227 (6th Cir. 1982) (remanding for\n district court to order disgorgement of defendant’s kickbacks from\n an underwriter’s “fiscal agent fee”); Blatt, 583 F.2d at 1335–36 (rea-\n soning that district court could order disgorgement of “fee[s] real-\n ized by each defendant for his assistance in executing the fraud,”\n which included “legal fees” and fees paid “for [a defendant’s] efforts\n in soliciting sellers”). The SEC has the initial burden of showing\n that its approximation of the gains is reasonable. See Calvo, 378 F.3d\n at 1217; SEC v. First City Fin. Corp., 890 F.2d 1215, 1232 (D.C. Cir.\n 1989). If the SEC reasonably approximates the ill-gotten gains,\n “[t]he burden then shifts to the defendant to demonstrate that the\n SEC’s estimate is not a reasonable approximation.” Calvo, 378 F.3d\n at 1217.\n Reasonableness doesn’t require “[e]xactitude,” id., but a dis-\n trict “court’s power to order disgorgement extends only to the\n amount with interest by which the defendant profited from his\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 73 of 211\n\n\n\n\n 22-13129 Opinion of the Court 73\n\n wrongdoing. Any further sum would constitute a penalty assess-\n ment.” Blatt, 583 F.2d at 1335. That means “courts must deduct\n legitimate business expenses” to “ensure that any disgorgement\n award falls within the limits of equity practice.” Liu, 591 U.S. at 92.\n Here the district court didn’t abuse its discretion by finding\n that the SEC satisfied its initial burden of reasonably approximating\n Island’s ill-gotten gains. The SEC initially requested that Island dis-\n gorge $147,508, which an SEC accountant calculated based on the\n “fees [Island was paid] from each of the [fourteen] Mirman/Rose\n companies through the date of the issuer’s bulk sale.” The SEC\n accountant relied on Island’s own financial statements regarding\n each issuer, showing the fees that the shells paid. The SEC then\n acknowledged $125,720 would account for line-item expenses that\n Island argued were legitimate—specifically, “[p]rinting; CUSIP;\n credit memo; courier; DTC.” The district court held the SEC to\n this “tacit[] agree[ment]” that $125,720 more accurately accounted\n for legitimate expenses.\n Because Island’s statements were evidence of the “fees [it]\n received for [its] role” in facilitating public trading of the Mir-\n man/Rose securities, see Blatt, 583 F.2d at 1335–36, and because the\n adjusted estimate excluded legitimate expenses, the district court\n reasonably found that the SEC satisfied its initial burden, Calvo, 378\n F.3d at 1217. And the district court then did what Liu requires dis-\n trict courts to do—it deducted other legitimate costs. The district\n court excluded three $200 payments made after the bulk sale date\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 74 of 211\n\n\n\n\n 22-13129 Opinion of the Court 74\n\n of Aristocrat Group, Global Group, and On the Move. It also ex-\n cluded a $3,500 expense related to Kids Germ because of its “odd\n payment history.”\n Island argues that the district court abused its discretion by\n finding that the SEC satisfied its initial burden because the initial\n calculation was “rife with errors,” which “included unsubstantiated\n fees and payments, fees paid after the bulk transfer date, and a fail-\n ure to account for legitimate business expenses.” But Island’s brief\n doesn’t identify which fees the SEC included in its adjusted request\n that were “unsubstantiated.” Although the SEC’s approximation\n included fees paid after the bulk transfer date, those amounts to-\n taled—at most—$4,100 out of the SEC’s estimate. More “[e]xacti-\n tude” wasn’t required. Calvo, 378 F.3d at 1217. To the extent Island\n argues that the district court should’ve excluded other allegedly\n “legitimate” expenses, including Island’s fixed costs and overhead,\n Island hasn’t shown that the district court abused its discretion in\n that respect either. Island doesn’t explain how the district court\n could’ve allocated its fixed costs to the thirteen transactions out of\n the many it processed.\n Island also argues that the district court erroneously shifted\n the burden of proof, presuming that any risk of uncertainty in cal-\n culating the disgorgement amount fell onto Island. But the district\n court applied the appropriate framework: it found that the SEC\n satisfied its initial burden, it deducted legitimate expenses under\n Liu, and it determined that Island didn’t rebut the SEC’s showing\n as to other allegedly legitimate expenses.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 75 of 211\n\n\n\n\n 22-13129 Opinion of the Court 75\n\n So, in the end, the district court didn’t abuse its discretion\n when it ordered disgorgement.\n Civil Penalties\n The Exchange Act allows the SEC to seek monetary penal-\n ties “[f ]or each violation.” 15 U.S.C. § 78u(d)(3)(B)(i). A district\n court may “impose, upon a proper showing,” those penalties\n against the violator. Id. § 78u(d)(3)(A)(i).\n “The amount . . . shall be determined by the court in light\n of the facts and circumstances,” id. § 78u(d)(3)(B)(i), and the maxi-\n mum penalty allowed depends on the type of violation. “First tier”\n penalties, which “shall not exceed the greater of (I) $5,000 for a nat-\n ural person or $50,000 for any other person, or (II) the gross\n amount of pecuniary gain to such defendant as a result of the vio-\n lation,” are the general rule. Id. “Second tier” penalties, which\n “shall not exceed the greater of (I) $50,000 for a natural person or\n $250,000 for any other person[] or (II) the gross amount of pecuni-\n ary gain,” may be imposed if the violation “involved fraud, deceit,\n manipulation, or deliberate or reckless disregard of a regulatory\n requirement.” Id. § 78u(d)(3)(A)(ii). And “[t]hird tier” penalties,\n which “shall not exceed the greater of (I) $100,000 for a natural per-\n son or $500,000 for any other person[] or (II) the gross amount of\n pecuniary gain,” may be imposed if the violation qualiﬁes for tier\n two and “directly or indirectly resulted in substantial losses or cre-\n ated a signiﬁcant risk of substantial losses to other persons.” Id.\n § 78u(d)(3)(A)(iii).\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 76 of 211\n\n\n\n\n 22-13129 Opinion of the Court 76\n\n The district court here ordered tier-two penalties against\n each defendant. It imposed a $150,000 penalty on Dilley and Eldred\n for violations relating to Envoy Group, Changing Technologies,\n First Xeris, Top to Bottom, and PurpleReal. It also ordered that\n Spartan and Island each pay a $250,000 penalty.\n The defendants appeal the penalties on two grounds. First,\n they argue that the district court violated the Seventh Amendment\n by ﬁnding the facts necessary to establish the total civil-penalty\n amounts instead of allowing a jury to determine those facts. Sec-\n ond, Dilley, Spartan, and Island argue that the district court abused\n its discretion by not considering their respective abilities to pay the\n ﬁnes. Again, we disagree with both arguments.\n 1. Right to jury trial\n The defendants’ first challenge is that the district court vio-\n lated their Seventh Amendment right to a jury trial. Specifically,\n they contend that the Seventh Amendment required a jury—not\n the district judge—to find (1) the facts necessary to establish tier-\n two penalties (that the violation “involved fraud, deceit, manipula-\n tion, or deliberate or reckless disregard of a regulatory require-\n ment,” 15 U.S.C. section 78u(d)(3)(B)(ii)), and (2) the number of vi-\n olations that each defendant was responsible for. We do not reach\n whether the Seventh Amendment required a jury to find those\n facts because the defendants’ arguments fail for other reasons.\n First, even if the district court couldn’t order tier-two penal-\n ties without a jury finding of the qualifying facts—fraud, deceit,\n manipulation, or disregard of a regulatory requirement—the jury\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 77 of 211\n\n\n\n\n 22-13129 Opinion of the Court 77\n\n here necessarily found deceit in this case as to each defendant. The\n jury held each defendant liable on count six. And count six re-\n quired that the SEC prove deceit through either an “untrue state-\n ment” or an omission “necessary . . . to make the statements . . .\n not misleading.” 17 C.F.R. § 240.10b-5(b). Thus, the jury’s finding\n allowed the district court to order tier-two penalties without any\n additional factfinding. See 5 U.S.C. § 78u(d)(3)(B)(ii), which is what\n the district court did here.\n Second, the defendants forfeited their assertion that the Sev-\n enth Amendment required a special jury finding on the number of\n violations. “[F]orfeiture is the failure to make the timely assertion\n of a right.” United States v. Campbell, 26 F.4th 860, 872 (11th Cir.\n 2022) (en banc) (citation omitted). No defendant timely asserted a\n right to have the jury determine the number of violations before\n the district court submitted the case to the jury. Their motion for\n special interrogatories only sought a special jury finding as to the\n penalty tier.\n The defendants argue that they preserved the number-of-vi-\n olations issue because they “never wavered in their conviction that\n they were not liable—that they committed [zero] violations.” But\n an assertion that the defendants weren’t liable cannot preserve the\n issue that, if the jury found them liable, it should specify the num-\n ber of violations on the verdict form.\n 2. Defendants’ ability to pay\n Next, Dilley, Spartan, and Island argue that the district court\n abused its discretion in determining the penalty amounts. They\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 78 of 211\n\n\n\n\n 22-13129 Opinion of the Court 78\n\n contend that they lack the net worth and assets to pay the penalties\n that the district court ordered. To that end, they argue that the\n district court should’ve considered their inability to pay before or-\n dering penalties and that its failure to do so was an abuse of discre-\n tion. Dilley, Spartan, and Island are mistaken for two independent\n reasons.\n First, the district court did consider Dilley’s ability to pay a\n $150,000 penalty, and it did consider Spartan and Island’s ability to\n pay a $250,000 penalty. The district court’s remedies order ex-\n pressly stated that it considered “all [of] the facts and circum-\n stances,” including “whether the penalt[ies] that would otherwise\n be appropriate should be reduced due to defendants’ demonstrated\n current and future financial condition.”\n The second reason is one that Dilley, Spartan, and Island\n concede—even if the district court didn’t consider their ability to\n pay the penalties, our precedent did not require it to consider that\n factor. A district court abuses its discretion “when a relevant factor\n that should have been given significant weight is not considered.”\n Ameritas Variable Life Ins. Co. v. Roach, 411 F.3d 1328, 1330 (11th Cir.\n 2005). But we held in Warren that a wrongdoer’s ability to pay Ex-\n change Act penalties “does not merit significant weight.” 534 F.3d\n at 1370. “At most, ability to pay is one factor to be considered in\n imposing a penalty.” Id.\n Dilley, Spartan, and Island maintain that we got it wrong in\n Warren. They argue that because the Eighth Amendment bars ex-\n cessive fines, “ability to pay [Exchange Act penalties] is a factor that\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 79 of 211\n\n\n\n\n 22-13129 Opinion of the Court 79\n\n should be given significant weight” by district courts. Under our\n prior panel precedent rule, though, Warren binds us “unless and\n until it is overruled or undermined to the point of abrogation by\n the Supreme Court or by this court sitting en banc.” United States v.\n Archer, 531 F.3d 1347, 1352 (11th Cir. 2008).", "author": "PER CURIAM"}, {"type": "dissent", "author": "The", "text": "The Dissenting Opinion\n A few words about the dissenting opinion before we con-\n clude. We should reverse, it says, because the district court erred\n in denying the defendants’ motions to dismiss the SEC’s complaint\n as a shotgun pleading, and that error resulted in the district court’s\n disqualification. For two reasons, we disagree. First, of the four-\n teen issues and sub-issues the defendants raised in this well litigated\n appeal, they never argued that we should reverse on shotgun-\n pleading or judicial-disqualification grounds. See Clark v. Sweeney,\n No. 25-52, 2025 WL 3260170, at 1 (U.S. Nov. 24, 2025) (“In our\n adversarial system of adjudication, we follow the principle of party\n presentation.” (quoting United States v. Sineneng-Smith, 590 U.S.\n 371, 375 (2020))). Second, even if they did, those grounds would\n not support reversal. See Liteky v. United States, 510 U.S. 540, 555\n (1994) (“[J]udicial rulings alone almost never constitute a valid basis\n for a bias or partiality motion. . . . Almost invariably, they are\n proper grounds for appeal, not for recusal.”); Fin. Info. Techs., LLC\n v. iControl Sys., USA, LLC, 21 F.4th 1267, 1273 n.2 (11th Cir. 2021)\n (“[C]oncerns” about defectively pleaded claims “dissipate when, as\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 80 of 211\n\n\n\n\n 22-13129 Opinion of the Court 80\n\n here,” the claims “have been litigated and adjudicated in a full-\n 15\n blown trial.”).\n CONCLUSION\n In short, the district court did not abuse its discretion when\n it allowed Cangiano to testify as an expert witness about a transfer\n agent’s role in bringing securities to market. Neither did it err\n when it denied the defendants’ motions for judgment as a matter\n of law—sufficient evidence showed that the defendants made ma-\n terial misrepresentations. And as to the remedies—all of which\n were timely under 28 U.S.C. section 2462 and section 21(d) of the\n Exchange Act—the district court didn’t abuse its discretion. The\n Exchange Act authorizes ordering disgorgement to the Treasury,\n the disgorgement award here was equitable, causally related to Is-\n land’s wrongdoing, and it accounted for Island’s legitimate ex-\n penses. Regarding civil penalties, the jury’s finding supported the\n tier-two penalties, and the district court adequately considered the\n defendants’ ability to pay those penalties.\n AFFIRMED.\n\n\n 15\n The Dupree exception, which “extends to a purely legal issue resolved at\n summary judgment,” does not apply here. See Dupree v. Younger, 598 U.S. 729,\n 731 (2023). The shotgun pleading issue in this case was not resolved at sum-\n mary judgment. And dismissing a complaint as a shotgun pleading is partly a\n discretionary, rather than a purely legal, call. See Barmapov v. Amuial, 986 F.3d\n 1321, 1324 (11th Cir. 2021) (“When a district court dismisses a complaint be-\n cause it is a shotgun pleading, we review that decision for abuse of discre-\n tion.”).\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 81 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 1"}, {"author": "TJOFLAT, Circuit Judge, dissenting", "type": "dissent", "text": "TJOFLAT, Circuit Judge, dissenting:\n INTRODUCTION\n The Securities and Exchange Commission (“SEC”) filed a\n complaint that was repugnant to every Federal Rule of Civil Pro-\n cedure governing the filing of complaints in the United States Dis-\n trict Courts. It stood in blatant defiance of Eleventh Circuit and Su-\n preme Court precedent. Yet when the defendants directed the Dis-\n trict Court’s attention to the complaint’s glaring deﬁciencies in\n their motion to dismiss, the Court denied the motion and marched\n onward. 1\n The SEC’s complaint was brought against four defendants,\n Spartan Securities (“Spartan”), Island Stock Transfer (“Island”),\n Carl Dilley, and Micah Eldred. It presented more than 300 causes\n of action, 260 of which alleged securities fraud taking place over\n the span of three to four years. Rule 9(b) of the Federal Rules of\n Civil Procedure required the SEC’s complaint to “state with partic-\n ularity the circumstances constituting” each fraud-based cause of\n action. Fed. R. Civ. P. 9(b). But it did no such thing.\n Instead, the SEC pleaded fourteen counts as conclusory\n statements of law paired with a sentence realleging the complaint’s\n ﬁrst 122 paragraphs. These 122 paragraphs essentially encom-\n passed the SEC’s entire investigative report, detailing wide-ranging\n conduct by both the defendants and third parties. Antonyms for\n\n\n 1 The Honorable Virginia M. Hernandez Covington presided over the district\n\n court proceedings.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 82 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 2\n\n “with particularity,” like “generally,” “imprecisely,” or “indeﬁ-\n nitely” more aptly describe how the SEC pleaded the fraud.\n In the months of pretrial discovery that followed, the SEC\n steadfastly refused defense counsel’s request to inform the defend-\n ants of the fraudulent acts and statements for which they would be\n standing trial. It was not until the trial concluded that the District\n Court effectively assumed the SEC’s Rule 9(b) pleading obligation\n and notified the defendants of the fraud it thought the SEC had al-\n leged.\n The jury convicted the defendants on only one of the SEC’s\n fourteen counts. That count, Count VI, alleged that the defendants\n “knowingly or recklessly made untrue statements of material facts\n and omitted to state material facts necessary in order to make the\n statements made . . . not misleading.” As indicated infra, Count VI\n presented fifty-two causes of action: nineteen against Spartan, four-\n teen against Island, fourteen against Dilley, and five against Eldred.\n The jury returned a verdict against each defendant on Count VI\n without identifying the misrepresentations or omissions on which\n it based its verdict. After denying the defendants’ renewed motion\n for judgment as a matter of law, the District Court entered a final\n judgment awarding the SEC the remedies it sought.\n The defendants appeal. Their best argument for reversal is\n that the District Court erred in denying their motion to dismiss.\n Unfortunately, when they filed their appeal, binding Eleventh Cir-\n cuit precedent precluded that argument because a full trial had\n taken place. See Fin. Info. Techs., LLC v. iControl Sys., USA, LLC, 21\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 83 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 3\n\n F.4th 1267, 1273 n.2 (11th Cir. 2021) (refusing to review pleading\n deﬁciencies because “those concerns dissipate when, as here, the\n alleged trade secrets have been litigated and adjudicated in a full-\n blown trial”); American Builders Ins. Co. v. Southern-Owners Ins. Co.,\n 56 F.4th 938, 950 (11th Cir. 2023) (“Our Circuit has no such legal-\n issue exception to the general rule that ‘a party may not appeal an\n order denying summary judgment after there has been a full trial\n on the merits.’” (quoting Carrizosa v. Chiquita Brands Int’l, Inc., 47\n F.4th 1278, 1339 (11th Cir. 2022))). After briefing closed, however,\n the United States Supreme Court overruled our precedent with\n Dupree v. Younger, 598 U.S. 729, 143 S. Ct. 1382 (2023). 2 The Courts\n of Appeals, Dupree explained, may review a pretrial question of law\n following the entry of judgment pursuant to a jury verdict without\n re-raising the question in a post-trial motion. Id. at 734, 143 S. Ct.\n at 1398.\n The Majority dedicates but one footnote to Dupree. Relying\n on our now-overruled precedent, it suggests that pleading-deﬁ-\n ciency arguments cannot be vetted by this Court after trial. Maj.\n Op. at 79–80. This, of course, stands in contrast to the longstanding\n principle that “an appeal from a final judgment permits review of\n all rulings that led up to the judgment.” Fed. R. App. P. 3 advisory\n\n\n 2 Dupree specifically cited American Builders as a decision requiring a “post-trial\n\n motion to preserve claims of pure legal error”—the exact type of decision it\n proceeded to overrule. 598 U.S. at 733 n.2, 143 S. Ct. at 1388 n.2.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 84 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 4\n\n committee’s note to 2021 amendment; Dupree, 598 U.S. at 734, 143\n S. Ct. at 1389 (“[T]he general rule is that a party is entitled to a sin-\n gle appeal, to be deferred until final judgment has been entered, in\n which claims of district court error at any stage of the litigation may\n be ventilated.” (internal quotation marks omitted) (emphasis\n added) (quoting Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712,\n 116 S. Ct. 1712, 1718 (1996))).\n What’s more, the Majority contends that the “principle of\n party presentation” precludes us from even considering the issue.\n Maj. Op. at 79–80. The Majority explains we cannot look beyond\n the four corners of the parties’ briefing to spot plain error—in total\n disregard of our en banc opinion in United States v. Campbell, 26\n F.4th 860, 865 (11th Cir. 2022) (en banc), cert. den. Campbell v.\n United States, 143 S. Ct. 95 (2002) (“[W]e may exercise our discre-\n tion to consider issues not raised by the parties on appeal.”).\n The error here was plain indeed. As explained in the discus-\n sion that follows, the SEC’s complaint was insufficient under Fed-\n eral Rules of Civil Procedure 8(a)(2), 9(b), 10(b), and 11(b). It also\n failed to state a claim sufficient to survive Rule 12(b)(6) and the Su-\n preme Court’s decision in Ashcroft v. Iqbal, because the allegations\n lacked “sufficient factual matter . . . to ‘state a claim to relief that is\n plausible on its face.’” 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009)\n (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955,\n 1974 (2007)).\n This Dissent is about process. The conduct of the SEC in\n prosecuting the fourteen counts of its complaint and of the District\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 85 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 5\n\n Court in handling the litigation was so devoid of fundamental fair-\n ness and respect for due process that this Court’s affirmance of the\n District Court’s judgment constitutes a manifest miscarriage of jus-\n tice.\n I. BACKGROUND AND THE SEC’S COMPLAINT\n A. The “Shell Factory” Schemes\n Two schemes gave rise to this litigation, each involving the\n fraudulent public registration of “shell companies”—companies\n with no real assets or operations—with the ultimate goal of selling\n the shells to private companies that could “go public” fast. The pri-\n mary culprits were Alvin Mirman, Sheldon Rose, Michael Daniels,\n Andy Fan, and Dianne Harrison (collectively, the “Fraudsters”).\n The Fraudsters are not parties to this litigation; Mirman and Rose\n pleaded guilty to criminal charges in 2016, and Daniels, Fan, and\n Harrison entered into consent decrees with the SEC in 2018.\n In the first operation, Alvin Mirman and Sheldon Rose reg-\n istered the securities of fourteen shell companies (the “Mir-\n man/Rose Companies”) under SEC Form S-1, 3 fraudulently repre-\n senting that the shells were operating companies with real business\n plans and independent management. The second operation was es-\n sentially identical: Daniels, Fan, and Harrison registered five shell\n\n\n 3 Form S-1 is an SEC form used to publicly register securities under the Secu-\n\n rities Act of 1933. See U.S. Sec. and Exch. Comm’n, Form S-1, Registration State-\n ment Under the Securities Act of 1933 (OMB 3235-0065), https://www.sec.gov/fil\n es/forms-1.pdf.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 86 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 6\n\n companies (the “Daniels Companies”) with fraudulent Form S-1\n filings.\n Although these securities were now registered with the\n SEC, they were not listed on any exchange. And while they could\n technically be sold on “over-the-counter” markets, they would not\n benefit from any meaningful liquidity until at least one broker, act-\n ing as a market-maker, was allowed to issue “quotations” (i.e., of-\n fers to buy or sell the securities at a specific price). Such authority\n required a FINRA-registered broker-dealer to file a Form 211, cer-\n tifying that it had performed the obligations imposed by SEC Rule\n 15c2-11. See 17 C.F.R. § 240.15c2-11.\n Enter Spartan, a FINRA-registered broker-dealer that fre-\n quently filed Forms 211 as part of its business model. Between 2010\n and 2014, Spartan filed Form 211 applications with FINRA for all\n fourteen Mirman/Rose Companies and all five Daniels Compa-\n nies. Dilley and Eldred, registered principals and representatives of\n Spartan, assisted Spartan in filing the Form 211 applications. Island\n served as the shell companies’ transfer agent and recorded share\n ownership, at the direction of the companies, to facilitate the issu-\n ances and transfers of securities.\n After FINRA approved the Forms 211 and Spartan published\n quotations for the shell companies’ securities, the Fraudsters had\n accomplished their objective. The shells were sold to real busi-\n nesses, which, through reverse mergers, were transformed into\n public companies with highly liquid securities. The Fraudsters, of\n course, reaped the lion’s share of the proceeds from the shell sales.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 87 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 7\n\n B. The SEC’s Complaint\n The SEC filed its 14-count complaint in this case on Febru-\n ary 20, 2019. Counts I, II, and XIV were “non-fraud” counts, alleg-\n ing that the defendants did not have a reasonable basis to file the\n Forms 211. Counts III through XIII were “fraud” counts, alleging\n that the defendants either committed fraud or aided and abetted\n the Fraudsters’ fraud in connection with the sale of securities.\n Every count asserted multiple causes of action—in some cases,\n dozens. And each cause of action was expressed as a pure legal con-\n clusion with a statement incorporating the first 122 paragraphs of\n the complaint. Although repetitive, I will now describe how each\n count was pleaded, in an effort to convey the SEC’s utter disregard\n for the Federal Rules of Civil Procedure.\n 1. The Non-fraud Counts\n Count I\n The SEC brought Count I against Spartan alone. With noth-\n ing but a wholesale incorporation of the first 122 paragraphs of the\n complaint, Count I alleged that from January 2010 through May\n 2014, Spartan “published quotations for securities or . . . submitted\n quotations for publication . . . without having a reasonable basis for\n believing, based on a review of the documents and information re-\n quired by Rule 15c2-11(a)(1)[ 4] . . . that the . . . information was\n\n\n 4 Rule 15c2-11 provides, in relevant part:\n\n [I]t shall be unlawful for . . . [a] broker or dealer to publish any\n quotation for a security or, directly or indirectly, to submit any\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 88 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 8\n\n accurate in all material respects and that the sources of that infor-\n mation were reliable.”\n Count I appeared to apply to all nineteen Forms 211 Spartan\n filed on behalf of the Fraudsters. But each filing was a separate\n transaction, occurring on a separate date, and respecting a different\n entity. Therefore, Count I stated a minimum of nineteen causes of\n action. It provided no specificity as to how Spartan’s investigation\n was inadequate or why the documents it reviewed were unreliable.\n Count II\n\n\n\n such quotation for publication, in any quotation medium, un-\n less . . .\n (A) Such broker or dealer has in its records the documents and\n information specified in paragraph (b) of this section;\n (B) Such documents and information specified in paragraph (b)\n of this section (excluding paragraphs (b)(5)(i)(N) through (P) of\n this section) are current and publicly available; and\n (C) Based upon a review of the documents and information\n specified in paragraph (b) of this section, together with any\n other documents and information required by paragraph (c) of\n this section, such broker or dealer has a reasonable basis under\n the circumstances for believing that:\n (1) The documents and information specified in para-\n graph (b) of this section are accurate in all material re-\n spects; and\n (2) The sources of the documents and information\n specified in paragraph (b) of this section are reliable[.]\n 17 C.F.R. § 240.15c2-11.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 89 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 9\n\n Count II alleged that Dilley and Eldred, and Spartan’s Chief\n Compliance Officer David Lopez, 5 “knowingly or recklessly pro-\n vided substantial assistance” to Spartan’s violations alleged in\n Count I. According to the 122 paragraphs, Dilley assisted Spartan’s\n publication of quotations for the fourteen Mirman/Rose Compa-\n nies’ securities between January 2011 and March 2014, and Eldred\n assisted the publication of quotations for the five Daniels Compa-\n nies’ securities between June 2011 and May 2014. Lopez allegedly\n helped Spartan approve certain deficiency letters from FINRA in\n connection with the Form 211 filings for six of the fourteen Mir-\n man/Rose Companies.\n Count II presented at least twenty-five causes of action. To\n prevail on the causes of action, the SEC would have to prove that\n Spartan published or submitted for publication quotations for se-\n curities, as alleged in Count I, on a specific date. The 122 para-\n graphs never identify these specific dates, nor do they indicate the\n specific manner in which Dilley, Eldred, and Lopez assisted Spar-\n tan’s unspecified Rule 15c2-11 violations.\n Count XIV\n Count XIV alleged that Spartan, Island, and Dilley “directly\n or indirectly . . . [sold] securities . . . when no registration statement\n was in effect with the Commission as to such securities” and “of-\n fer[ed] to sell such securities when no registration statement had\n\n\n 5 Lopez was charged only in Count II, for which the jury returned a verdict of\n\n not guilty. Accordingly, Lopez is not a party to this appeal.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 90 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 10\n\n been filed with the Commission as to such securities,” in violation\n of Sections 5(a) and (c) of the Securities Act of 1933 (“Securities\n Act”).\n Like the other counts, this allegation was a mere legal con-\n clusion. The 122 paragraphs may have provided some predicate\n facts for the violations of Sections 5(a) and (c), but they did not\n identify the securities to which they referred. Nor did they mention\n when and to whom Spartan, Island, and Dilley sold and offered to\n sell the securities. Thus, it is not possible to determine how many\n causes of action Count XIV actually presented without speculation.\n 2. The Fraud Counts\n Counts III through XIII alleged fraud. Like the non-fraud\n counts, each fraud count contained several causes of action ex-\n pressed as pure legal conclusions. And, despite Rule 9(b)’s mandate\n that these counts be pled with particularity, the SEC only vaguely\n gestured toward fraud. To identify the predicate facts in support of\n each count, the SEC, again, pointed the defendants and the Court\n to the first 122 paragraphs in the complaint.\n I turn first to the causes of action brought under Section\n 17(a) and then to those brought under Section 10(b). 6\n Section 17(a) states in relevant part:\n\n\n\n 6 The conduct proscribed by Section 17(a)(1)–(3) and Rule 10b-5(a)–(c) is the\n\n same. Section 17(a) applies to the offer or sale of securities. Rule 10b-5 applies\n to the purchase or sale of securities.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 91 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 11\n\n It shall be unlawful for any person in the offer or sale\n of any securities . . . directly or indirectly—\n (1) to employ any device, scheme, or artifice to\n defraud, or\n (2) to obtain money or property by means of any\n untrue statement of a material fact or any omis-\n sion to state a material fact necessary in order to\n make the statements made, in light of the circum-\n stances under which they were made, not mis-\n leading; or\n (3) to engage in any transaction, practice, or\n course of business which operates or would oper-\n ate as a fraud or deceit upon the purchaser.\n 15 U.S.C. § 77q(a).\n Count III\n Count III alleged that, from December 2009 through July\n 2014, Spartan, Island, and Dilley violated Section 17(a)(1) by “em-\n ploy[ing] [a] device, scheme or artifice to defraud” in connection\n with the fourteen Mirman/Rose Companies. Separately, it alleged\n that, from May 2011 through August 2014, Spartan and Eldred vi-\n olated Section 17(a)(1) in the same way with respect to the five\n Daniels Companies.\n Referring to the complaint’s 122 paragraphs, Count III ap-\n pears to present fifty-two causes of action: nineteen against Spar-\n tan, fourteen against Island, fourteen against Dilley, and five\n against Eldred. Count III did not, with respect to each cause of ac-\n tion, “state with particularity the circumstances constituting fraud”\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 92 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 12\n\n or state predicate facts necessary to withstand a motion to dismiss\n under Rule 9(b). Fed. R. Civ. P. 9(b). And even if Spartan, Island,\n Dilley, and Eldred did partake in the “offer or sale” of securities—\n the details of which are left to the imagination—the paragraphs did\n not describe the “device, scheme, or artifice to defraud” they em-\n ployed or even explain whom they defrauded.\n Count IV\n Count IV alleged that, from December 2009 through July\n 2014, Spartan, Island, and Dilley violated Section 17(a)(3) by “neg-\n ligently engag[ing] in transactions, practices and courses of busi-\n ness which operated . . . as a fraud or deceit” in connection with\n the fourteen Mirman/Rose Companies. It separately alleged that,\n from May 2011 through August 2014, Spartan and Eldred violated\n Section 17(a)(3) in the same way with respect to the five Daniels\n Companies.\n Count IV also presented fifty-two causes of action: nineteen\n against Spartan, fourteen against Island, fourteen against Dilley,\n and five against Eldred. But the 122 paragraphs did not remotely\n “state with particularity the circumstances constituting fraud” or\n state predicate facts necessary to survive a motion to dismiss. Fed.\n R. Civ. P. 9(b). The SEC did not identify how the defendants “en-\n gage[d] in . . . transaction[s], practice[s], or course[s] of business\n which operate[d] . . . as a fraud or deceit upon the purchaser[s]” of\n the securities. 15 U.S.C. § 77q(a)(3).\n Counts VIII, IX, and X\n Counts VIII, IX, and X alleged that, from December 2009\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 93 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 13\n\n through July 2014, Spartan, Island, and Dilley, “knowingly or reck-\n lessly provided substantial assistance to Mirman and Rose’s” viola-\n tions of Section 17(a)(1), (2), and (3). 7 The counts separately alleged\n that Spartan and Eldred “knowingly or recklessly provided substan-\n tial assistance to Daniels, Fan, and Harrison’s” violations of Section\n 17(a)(1), (2), and (3). 8\n How many aiding and abetting causes of action Counts VIII,\n IX, and X presented is unknowable. To prove any of these causes\n of action, the SEC would have to establish first that the Fraudsters\n violated Section 17(a) in a specific timeframe and in a specific man-\n ner. The SEC does not allege with particularity what the schemes,\n misstatements, or deceitful business practices were that formed the\n Section 17(a) violations. See Fed. R. Civ. P. 9(b). And even if the\n facts presented were sufficient to identify the Fraudsters’ Section\n 17(a) violations, they certainly did not reveal precisely what Spar-\n tan, Island, Dilley, and Eldred did to assist those violations.\n * * \n Now for the Rule 10b-5 counts. Rule 10b-5 states in relevant\n part:\n It shall be unlawful for any person . . .\n\n\n\n 7 Count VIII alleged violations of Section 17(a)(1), Count IX alleged violations\n\n of Section 17(a)(2), and Count X alleged violations of Section 17(a)(3).\n 8 Again, Count VIII alleged violations of Section 17(a)(1), Count IX alleged vi-\n\n olations of Section 17(a)(2), and Count X alleged violations of Section 17(a)(3).\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 94 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 14\n\n (a) To employ any device, scheme, or artifice to\n defraud,\n (b) To make any untrue statement of a material\n fact or to omit to state a material fact necessary in\n order to make the statements made, in the light\n of the circumstances under which they were\n made, not misleading, or\n (c) To engage in any act, practice, or course of\n business which operates or would operate as a\n fraud or deceit upon any person,\n in connection with the purchase or sale of any secu-\n rity.\n 17 C.F.R. § 240.10b-5.\n Count V\n Count V alleged that, from December 2009 through July\n 2014, Spartan, Island, and Dilley violated Rule 10b-5(a) by “know-\n ingly or recklessly employ[ing] devices, schemes or artifices to de-\n fraud in connection with the purchase or sale of securities” of the\n fourteen Mirman/Rose Companies. It separately alleged that, from\n May 2011 through May 2014, Spartan and Eldred did the same with\n respect to the five Daniels Companies.\n Count V presented fifty-two causes of action: nineteen\n against Spartan, fourteen against Island, fourteen against Dilley,\n and five against Eldred. Count V did not “state with particularity\n the circumstances constituting fraud.” Fed. R. Civ. P. 9(b). The 122\n paragraphs incorporated therein failed to describe the “device,\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 95 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 15\n\n scheme, or artifice” the defendants employed or identify the per-\n son(s) or entity(ies) they defrauded. 17 C.F.R. § 240.10b-5(a); 15\n U.S.C. § 77q(a)(1).\n Count VI\n Count VI alleged that, from December 2009 through April\n 2014, Spartan, Island, and Dilley violated Rule 10b-5(b) by “know-\n ingly or recklessly ma[king] untrue statements of material facts and\n omit[ting] to state material facts necessary in order to make the\n statements made . . . not misleading” in connection with the four-\n teen Mirman/Rose Companies. It separately alleged that, from\n May 2011 through May 2014, Spartan and Eldred violated Rule 10b-\n 5(b) in exactly the same way with respect to the five Daniels Com-\n panies.\n Like Count V, Count VI presented fifty-two causes of action:\n nineteen against Spartan, fourteen against Island, fourteen against\n Dilley, and five against Eldred. Count VI did not “state with partic-\n ularity the circumstances constituting fraud.” Fed. R. Civ. P. 9(b).\n The 122 paragraphs incorporated therein failed to identify the de-\n fendants’ specific material misstatements and omissions, let alone\n when they were made or to whom they were made.\n Count VII\n Count VII alleged that, from December 2009 through July\n 2014, Spartan, Island, and Dilley violated Rule 10b-5(c) by “directly\n and indirectly . . . knowingly or recklessly engag[ing] in acts, prac-\n tices and courses of business which operated . . . as a fraud or deceit\n upon any person” in connection with the fourteen Mirman/Rose\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 96 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 16\n\n Companies. It separately alleged that, from May 2011 through May\n 2014, Spartan and Eldred did the same with respect to the five Dan-\n iels Companies.\n Like Counts V and VI, Count VII presented fifty-two causes\n of action: nineteen against Spartan, fourteen against Island, four-\n teen against Dilley, and five against Eldred. Count VII did not\n “state with particularity the circumstances constituting fraud.” Fed.\n R. Civ. P. 9(b). The 122 paragraphs did not identify the predicate\n acts required to state a Rule 10b-5(c) cause of action sufficient to\n withstand a motion to dismiss because they did not describe the\n defendants’ “engage[ment] in . . . act[s], practice[s], or course[s] of\n business which operate[d] . . . as a fraud or deceit” upon the pur-\n chasers of the securities. 17 C.F.R. § 240-10b-5(c). Nor did the par-\n agraphs identify the person(s) or entity(ies) who purchased or sold\n the securities.\n Counts XI, XII, and XIII\n Counts XI, XII, and XIII alleged that Spartan, Island, and Dil-\n ley “knowingly or recklessly provided substantial assistance to Mir-\n man and Rose’s” violations of Rule 10b-5(a), (b), and (c).9 They sep-\n arately alleged that Spartan and Eldred “knowingly or recklessly\n\n\n\n\n 9 Count XI alleged violations of Rule 10b-5(a), Count XII alleged violations of\n\n Rule 10b-5(b), and Count XIII alleged violations of Rule 10b-5(c).\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 97 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 17\n\n provided substantial assistance to Daniels, Fan and Harrison’s”\n Rule 10b-5(a), (b), and (c) violations. 10\n How many aiding and abetting causes of action Counts XI,\n XII, and XIII presented cannot be determined from the complaint.\n It would require grand speculation to fix the number of Rule 10b-\n 5(a), (b), and (c) violations the Fraudsters committed in nearly four\n years. Moreover, as with Counts VIII, IX, and X, it would be well-\n nigh impossible to discern from the 122 paragraphs both whether\n the purported Rule 10b-5(a), (b), and (c) violations had the required\n predicate factual support and what Spartan, Island, Dilley, and El-\n dred may have done to assist the respective Mirman and Rose and\n Daniels, Fan, and Harrison violations.\n * \n The SEC’s complaint presented the District Court with a\n case that, at first blush, appeared to be unmanageable. Counts I\n through VII of the complaint presented 304 causes of action, 260 of\n which alleged fraud. The aiding and abetting counts contained\n even more causes of action, albeit incalculable. Most counts in-\n cluded multiple groupings of defendants and a myriad of different\n transactions. There was nary one application of fact to law. Rather,\n each count was written as an entirely speculative legal conclusion.\n We condemned these types of pleadings thirty years ago in\n Fikes v. City of Daphne:\n\n 10 Again, Count XI alleged violations of Rule 10b-5(a), Count XII alleged viola-\n\n tions of Rule 10b-5(b), and Count XIII alleged violations of Rule 10b-5(c).\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 98 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 18\n\n By combining several claims for relief in each count,\n [lawyers] disregard[] the rules governing the presen-\n tation of claims to a district court. Federal Rule of\n Civil Procedure 8(a)(2) requires a pleader, in setting\n forth a claim for relief, to present “a short plain state-\n ment of the claim showing that the pleader is entitled\n to relief.” Federal Rule of Civil Procedure 10(b) pro-\n vides that “[a]ll averments of claim shall be made in\n separate paragraphs, the contents of each of which\n shall be limited as far as practicable to a statement of\n a single set of circumstances . . . .” Moreover, “each\n claim founded upon a separate transaction or occur-\n rence . . . shall be stated in a separate count whenever\n a separation facilitates the clear presentation of the\n matters set forth.” These rules work together “to re-\n quire the pleader to present his claims discretely and\n succinctly, so that his adversary can discern what he\n is claiming and frame a responsive pleading, the court\n can determine which facts support which claims and\n whether the plaintiff has stated any claims upon\n which relief can be granted, and, at trial, the court can\n determine that evidence which is relevant and that\n which is not.”\n 79 F.3d 1079, 1082 (11th Cir. 1996) (alterations adopted) (quoting\n T.D.S. Inc. v. Shelby Mut. Ins. Co., 760 F.2d 1520, 1543 n.14 (11th Cir.\n 1985) (Tjoflat, J., dissenting)).\n The Supreme Court has also elaborated on what is required\n to satisfy Rule 8(a)(2). In Iqbal, it held that a cause of action must\n “contain sufficient factual matter . . . to ‘state a claim to relief that\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 99 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 19\n\n is plausible on its face.’” 556 U.S. at 678, 129 S. Ct. at 1949 (quoting\n Twombly, 550 U.S. at 570, 127 S. Ct. at 1974). “A claim has facial\n plausibility when the . . . plead[ed] factual content . . . allows the\n court to draw the reasonable inference that the defendant is liable\n for the misconduct alleged.” Id. Perhaps it should go without stat-\n ing, but the Supreme Court’s use of the singular nouns “cause of\n action” and “claim” means that the requisite factual content must\n exist and be traceable with respect to each cause of action.\n All of this background is at play before Rule 9(b) enters the\n picture. When a plaintiff alleges fraud, Rule 9(b) adds to the other\n Federal Rules of Civil Procedure, like Rules 8(a)(2) and 10(b). A\n plaintiff alleging fraud must not only plead factual content suffi-\n cient to create an inference of liability under Iqbal but also “state\n with particularity the circumstances constituting fraud.” Fed. R.\n Civ. P. 9(b).\n Consider the Count VI allegation that Dilley violated Sec-\n tion 10(b) of the Securities Act and Rule 10b-5(b) thereunder. The\n SEC was obligated to plead exactly how Dilley carried out the al-\n leged fraud. It should have alleged that, at a given point in time and\n place, in connection with the purchase or sale of specifically identi-\n fied securities, Dilley made a specific untrue statement of material\n fact to a specific person or entity or in a specific document and\n omitted to state a specific material fact necessary to make other\n specific statements not misleading. Anything short of this would\n necessarily (1) fail Rule 10(b)’s mandate to break up different causes\n of action; (2) fail to create an inference of fraud under Rule 8(a)(2)\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 100 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 20\n\n and Iqbal; or (3) fail to comply with Rule 9(b)’s particularity require-\n ment. Here, the SEC failed on all three fronts.\n II. THE DEFENDANTS’ MOTION TO DISMISS, THE SEC’S RESPONSE,\n AND THE DISTRICT COURT’S ORDER\n\n On April 22, 2019, the defendants moved to dismiss the com-\n plaint, arguing that the SEC “fail[ed] to state a claim upon which\n relief can be granted.” 11 See Fed. R. Civ. P. 12(b)(6). Specifically, the\n defendants argued that the SEC did not comply with Rule 8(a) or\n Rule 9(b) and that the complaint was an impermissible “shotgun\n pleading.” 12\n On June 5, 2019, the District Court denied the defendants’\n Motion to Dismiss, rejecting each of their arguments. I now walk\n through the defendants’ contentions, the SEC’s response, and how\n the Court reached its conclusions.\n\n\n\n\n 11 Two motions to dismiss were filed: one by Eldred, and the other by Spartan,\n\n Island, and Dilley. For convenience, I consider the motions as one.\n 12 The defendants also argued that the claims were time-barred by 28 U.S.C.\n\n § 2462 and that, under a recent Supreme Court ruling, they could not be liable\n for the Fraudsters’ misrepresentations because they were not the “maker[s]”\n of any fraudulent statements. Defs.’ Mot. to Dismiss 6–7, 27–30; see Janus Cap.\n Grp., Inc. v. First Derivative Traders, 564 U.S. 135, 142, 131 S. Ct. 2296, 2302\n (2011). However, the pleading-deficiency arguments are the focus of this Dis-\n sent.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 101 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 21\n\n A. Rule 8(a)\n First, the defendants asserted that all fourteen counts vio-\n lated Rule 8(a)(2) because they did not state a short and plain state-\n ment of the claim “show[ing] that the [SEC was] entitled to relief.”\n Defs.’ Mot. to Dismiss 15; see Fed. R. Civ. P. 8(a)(2). They argued\n that the counts alleged mere conclusions of law, which are not\n granted an assumption of truth, and that the counts otherwise\n lacked the predicate facts, “accepted as true, to ‘state a claim to re-\n lief that is plausible on its face.’” Defs.’ Mot. to Dismiss 3 (quoting\n Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949).\n The SEC disagreed. But its argument for Rule 8(a)(2) com-\n pliance was as conclusory as the complaint itself:\n [T]o satisfy the liberal notice pleading standards of\n Rule 8(a), the Commission must do nothing more\n than set forth “a short and plain statement of the\n claim showing that the pleader is entailed [sic] to re-\n lief.” The Court’s inquiry at the motion to dismiss\n stage still focuses on whether the challenged plead-\n ings “give the defendant fair notice of what the . . .\n claim is and the grounds on which it rests.” The Com-\n mission has satisfied this pleading standard.\n Pl.’s Resp. to Mot. to Dismiss 6–7 (internal citations omitted).\n Evidently, that explanation was enough for the District\n Court. After quoting Iqbal, it held that “[t]he SEC’s 62-page, 191-\n paragraph Complaint contains more than enough detail to satisfy\n Rule 8(a)’s notice pleading requirements.” United States Sec. & Exch.\n Comm’n v. Spartan Sec. Grp., LTD, No. 8:19-CV-448-T-33CPT, 2019\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 102 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 22\n\n WL 2372277, at 3 (M.D. Fla. June 5, 2019). It had nothing further\n to say on the matter.\n B. Rule 9(b)\n Second, the defendants argued that the fraud counts should\n be dismissed because they did not state with particularity the cir-\n cumstances constituting the fraud. Defs.’ Mot. to Dismiss 3–4; Fed.\n R. Civ. P. 9(b). Citing FindWhat Investor Group v. FindWhat.com, 658\n F.3d 1282, 1296 (11th Cir. 2011), the defendants pointed out that\n where a cause of action is brought under Rule 10b-5(b), as in Count\n VI, the complaint must:\n set forth (1) precisely what statements or omissions\n were made; (2) the time and place of each statement;\n (3) the manner in which they misled the investor; and\n (4) what the defendant obtained as a result of the\n fraud.\n Defs.’ Mot. to Dismiss 4. Instead, the defendants wrote, the SEC\n exhibited “no effort to state with particularity which specific factual\n allegations apply to which claim for relief, leaving Defendants un-\n able to discern the exact nature of the charges.” Id. at 5.\n The SEC disagreed, but its argument for Rule 9(b) compli-\n ance was, again, conclusory:\n The complaint need only provide a reasonable delin-\n eation of the underlying acts and transactions consti-\n tuting the fraud. A complaint pleads fraud with par-\n ticularity if it alleges the substance of the fraudulent\n acts, who engaged in the fraud, and when the fraud\n occurred. Under those standards, the Commission’s\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 103 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 23\n\n detailed Complaint, which includes 122 paragraphs of\n underlying facts of who, what, when, where, and\n how satisfies the requirements for pleading fraud\n with particularity.\n Pl.’s Resp. to Mot. to Dismiss 7–8 (internal citations omitted).\n The Court agreed with the SEC, finding that the complaint\n “provides specific details on [Spartan] and [Island]’s alleged roles in\n serving as a one-stop shop for issuers of microcap securities that\n were later found to have violated federal securities laws.” Spartan\n Sec. Grp., 2019 WL 2372277, at 3. It continued, “[the complaint]\n alleges the date, substance, and persons responsible for numerous\n statements and omissions in FINRA and Depository Trust Corpo-\n ration (DTC) related filings . . . . Therefore, the Court finds the\n Complaint’s factual allegations satisfy the particularity pleading re-\n quirements of Rule 9(b).” Id.\n C. Shotgun Pleading\n Third, the defendants argued that the complaint was a quin-\n tessential shotgun pleading. Citing Wagner v. First Horizon Pharma-\n ceutical, 464 F.3d 1273, 1279 (11th Cir. 2006), they correctly asserted\n that shotgun pleadings include “those that incorporate every ante-\n cedent [allegation] by reference into each subsequent claim for re-\n lief.” Defs.’ Mot. to Dismiss 5. Here, the defendants explained,\n “each of the 14 counts repeats and incorporates paragraphs one\n through 122, which contain all factual allegations, irrespective of\n to which defendant, issuer, time period, or ‘scheme’ they relate.”\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 104 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 24\n\n Id. at 5 (emphasis in original); see Davis v. Coca-Cola Bottling Co. Con-\n sol., 516 F.3d 955, 980 (11th Cir. 2008) (holding a complaint to be a\n shotgun pleading because it contained “untold causes of action, all\n bunched together in one count contrary to the requirements of”\n Rule 10(b)). 13\n The SEC disagreed. It cited the District Court’s recent deci-\n sion in Terry v. Interim Healthcare Gulf Coast, Inc., No. 8:18-CV-692-\n T-33JSS, 2018 WL 1992276, at 2 (M.D. Fla. Apr. 27, 2018), for the\n proposition that a “complaint that re-alleges just the factual allega-\n tions and does not re-allege each count, is different from a typical\n shotgun pleading.” Pl.’s Resp. to Mot. to Dismiss 9.\n The District Court sided with the SEC. It began by correctly\n identifying one of our finest cases detailing this Circuit’s law on\n shotgun pleadings: Weiland v. Palm Beach County Sheriff’s Office, 792\n\n\n 13 In Davis, we explained:\n\n Rule 8(a)(2) . . . requires a complaint to contain ‘‘a short and\n plain statement of the claim showing that the pleader is enti-\n tled to relief.’’ Rule 10(b) instructs that ‘‘[E]ach claim founded\n upon a separate transaction or occurrence . . . shall be stated in\n a separate count . . . whenever a separation facilitates the clear\n presentation of the matters set forth.’’ Fed. R. Civ. P. 10(b)\n (emphasis added.).\n 516 F.3d at 980 n.57.\n We then explained the plaintiff’s complaint “failed to conform to these\n instructions . . . [because it] contained in one count a host of claims based on\n discrete acts . . . committed by [the defendants] against different plaintiffs at\n different times.” Id.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 105 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 25\n\n F.3d 1313, 1321–23 (11th Cir. 2015). But rather than exploring the\n full scope of that opinion, the Court quickly turned to its decision\n in Terry for a narrower inquiry. It concluded that the complaint was\n not a shotgun pleading because “each count does not incorporate\n the prior count.” Spartan Sec. Grp., 2019 WL 2372277, at 3.\n III. PRECEDENT REQUIRED THE COMPLAINT BE DISMISSED\n A. The District Court Got the Law Wrong\n The District Court was wrong. The SEC’s complaint failed\n to comply with Rules 8(a), 9(b), and 10(b) and was a quintessential\n shotgun pleading. Because our caselaw on shotgun pleadings incor-\n porates the underlying policy goals of each of the three aforemen-\n tioned rules, I discuss the complaints’ multitude of failures as one.\n By way of background, in Weiland, then Chief Judge Ed\n Carnes identified the most common types of shotgun complaints\n that have been condemned in the Eleventh Circuit:\n [1] the most common type . . . is a complaint contain-\n ing multiple counts where each count adopts the alle-\n gations of all preceding counts, causing each succes-\n sive count to carry all that came before and the last\n count to be a combination of the entire complaint.\n [2] The next most common type . . . is a complaint\n that does not commit the mortal sin of re-alleging all\n preceding counts but is guilty of the venial sin of be-\n ing replete with conclusory, vague, and immaterial\n facts not obviously connected to any particular cause\n of action. [3] The third type of shotgun pleading is\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 106 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 26\n\n one that commits the sin of not separating into a dif-\n ferent count each cause of action or claim for relief.\n [4] Fourth, and finally, there is the relatively rare sin\n of asserting multiple claims against multiple defend-\n ants without specifying which of the defendants are\n responsible for which acts or omissions, or which of\n the defendants the claim is brought against. The uni-\n fying characteristic of all types of shotgun pleadings is\n that they fail to one degree or another, and in one way\n or another, to give the defendants adequate notice of\n the claims against them and the grounds upon which\n each claim rests.\n 792 F.3d at 1321–23.\n Now, back to Terry. In that case, decided by the District\n Court just thirteen months before its ruling on the defendants’ mo-\n tion to dismiss in the instant case, the District Court demonstrated\n a perfect application of Weiland. That is, it asked whether the plain-\n tiff’s complaint fell into any of the four categories of shotgun plead-\n ing that our Court refuses to tolerate. 2018 WL 1992276, at 2. And\n it walked through the proper analysis for each. Id. at 2–3. But\n when the Court revisited its Terry opinion for application to the\n instant case, it looked only at its discussion of Weiland’s first shot-\n gun pleading category. At no point in its analysis did the District\n Court consider the second, third, or fourth type.\n How it accomplished this feat is remarkable. To make\n Weiland’s first category appear exhaustive, the District Court took\n a jaw-dropping liberty in crafting an explanatory parenthetical. Re-\n ferring to the SEC’s complaint, the District Court wrote:\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 107 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 27\n\n While each count incorporates by reference all the\n factual allegations, each count does not incorporate\n the prior count. . . . Terry v. Interim Healthcare Gulf\n Coast, Inc., No. 8:18–cv–692–T-33JSS, 2018 WL\n 1992276, at 2 (M.D. Fla. Apr. 27, 2018) (explaining a\n complaint that re-alleges just the factual allegations\n and does not re-allege each count is not a shotgun plead-\n ing). . . . Therefore, the Complaint is not a shotgun\n pleading.\n Spartan Sec. Grp., 2019 WL 2372277, at 3 (emphasis added).\n Where did the District Court find support in Terry for this\n emphatic proposition? Its citation leads us to the following passage:\n A complaint that re-alleges just the factual allegations\n and does not re-allege each count, like the Complaint\n at issue, is different from a typical shotgun pleading\n and should be treated as such. Weiland, 792 F.3d at\n 1324 (holding that a complaint was not a shotgun\n pleading, in part because “[t]he allegations of each\n count are not rolled into every successive count on\n down the line”).\n Terry, 2018 WL 1992276, at 2 (emphasis added).\n The District Court’s parenthetical plainly misrepresented\n the law. Terry did not hold that “a complaint that re-alleges just the\n factual allegations and does not re-allege each count is not a shot-\n gun pleading.” 14 Nothing of the sort. If a litigant had crafted that\n\n\n 14 Moreover, if Terry had reached such a conclusion, it would have been in\n\n flagrant violation of this Court’s binding precedent.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 108 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 28\n\n explanatory parenthetical, such litigant would be subject to sanc-\n tions under Rule 11 for misleading the court. See Fed. R. Civ. P.\n 11(b) (“By presenting to the court a pleading, written motion, or\n other paper . . . an attorney . . . certifies that to the best of the per-\n son’s knowledge . . . the claims, defenses, and other legal conten-\n tions are warranted by existing law or by a nonfrivolous argument\n for extending, modifying, or reversing existing law or for establish-\n ing new law[.]”). That is why the SEC—to its credit—accurately\n excerpted the passage in its response to the motion to dismiss.\n In Terry, the Court proceeded to consider the other ways a\n complaint may constitute a shotgun pleading. 2018 WL 1992276,\n at 3. Why the Court changed course in the instant case is puzzling.\n Had the District Court evaluated the other three types of shotgun\n pleadings, it would have no sensible explanation for why the SEC’s\n complaint did not fit all three.\n * \n The SEC’s complaint surely fit Weiland’s second type of\n shotgun pleading. It failed to include facts connected to particular\n causes of action, and it effectively and inappropriately forced the\n defendants to “sift through the factual allegations to determine\n which [we]re relevant to those claims against them.” Gregory v. City\n of Tarpon Springs, No. 8:16-CV-237-T-33AEP, 2016 WL 5816026, at\n 4 (M.D. Fla. Oct. 5, 2016) (Covington, J.).\n Our Court analyzed this type of shotgun pleading in Ander-\n son v. District Board of Trustees of Central Florida Community College,\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 109 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 29\n\n 77 F.3d 364, 366–67 (11th Cir. 1996). There, we held that the plain-\n tiff’s complaint was “a perfect example of [a] ‘shotgun’ pleading”\n because it was “virtually impossible to know which allegations of\n fact [were] intended to support which claim(s) for relief.” Id. at 366.\n To avoid inappropriately saddling the defendants with the\n burden of sifting through the entire fact section to locate the pred-\n icate facts for its 304-plus causes of action, the District Court should\n have required the SEC to re-plead the claims in separate counts and\n to incorporate into each count only those factual allegations perti-\n nent to that count. 15\n The SEC’s complaint was also the third type of shotgun\n complaint. Each count contained a multitude of defendants, re-\n ferred to a multitude of transactions, and lacked any and all clarity.\n Failing to split these causes of action into separate counts consti-\n tuted an obvious violation of Rule 10(b).\n The complaint was the fourth type of shotgun complaint as\n well. It “assert[ed] multiple claims against multiple defendants\n\n\n\n\n 15 In McNeil v. Alternative Home Financing, Inc., the District Court did exactly\n\n this. No. 2:04-CV-356-FTM33DNF, 2006 WL 1151592, (M.D. Fla. May 1, 2006)\n (Covington, J.). It explained, “[i]t is not sufficient to incorporate all of the fac-\n tual allegations for each count and [d]efendants should not be made to sift\n through the allegations and attempt to decipher which facts [we]re supportive\n of a given claim.” Id. at 1.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 110 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 30\n\n without specifying which of the defendants are responsible for\n which acts or omissions.” 16 Weiland, 792 F.3d at 1323.\n\n\n\n\n 16 By the time it denied the defendants’ motion to dismiss the SEC’s complaint\n\n ( June 5, 2019), the District Court was well aware of this Court’s concern about\n shotgun pleadings and had been assiduously applying our precedent that called\n for district judges faced with a shotgun complaint to order the plaintiﬀ to ﬁle\n a repleader in the form of a Rule 12(e) more deﬁnite statement. The Court\n was also well aware that for the most part, shotgun complaints stem from a\n violation of Rules 8(a)(2) or 10(b), or both. As former Chief Judge Carnes\n noted in Weiland, complaints that violate either Rule 8(a)(2) or Rule 10(b), or\n both, are invariably shotgun pleadings. 792. F.3d at 1320.\n The purpose of these rules is self-evident, to require the\n pleader to present his claims discretely and succinctly, so that,\n his adversary can discern what he is claiming and frame a re-\n sponsive pleading, the court can determine which facts sup-\n port which claims and whether the plaintiﬀ has stated any\n claims upon which relief can be granted, and, at trial, the court\n can determine that evidence which is relevant and that which\n is not. ‘‘Shotgun’’ pleadings, calculated to confuse the ‘‘en-\n emy,’’ and the court, so that theories for relief not provided by\n law and which can prejudice an opponent’s case, especially be-\n fore the jury, can be masked, are ﬂatly forbidden by . . . these\n rules.\n Id. (quoting T.D.S., 760 F.2d at 1544 n.14 (Tjoﬂat, J., dissenting)).\n Chief Judge Pryor repeated Judge Carnes’s point in Barmapov v. Amuial:\n “A shotgun pleading is a complaint that violates either Federal Rule of Civil\n Procedure 8(a)(2) or Rule 10(b), or both.” 986 F. 3d 1321, 1324 (11th Cir. 2021).\n In Mesa v. Kajaine Fund III, LLC, the District Court, drawing on our de-\n cision in Fikes v. City of Daphne, remarked on the importance of the two rules\n in drafting a complaint:\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 111 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 31\n\n The SEC’s complaint clearly failed to meet federal pleading\n standards. It was a shotgun complaint composed in violation of\n Rules 8(a)(2), 9(b), and 10(b). We explained in Byrne v. Nezhat what\n a district court must do under such circumstances:\n [I]f, in the face of a shotgun complaint, the defendant\n does not move the district court to require a more\n definite statement, the court, in the exercise of its in-\n herent power, must intervene sua sponte and order a\n repleader.[ 17] Implicit in such instruction is the notion\n\n\n\n Pursuant to Rule 8(a), Fed. R. Civ. P., a pleading that states a\n claim must contain, among other things, “a short plain state-\n ment of the claim showing that the pleader is entitled to re-\n lief.” Additionally, Rule 10(b) provides that “[a] party must\n state its claims or defenses in numbered paragraphs, each lim-\n ited as far as practicable to a single set of circumstances.” Fed.\n R. Civ. P. 10(b). Taken together, these rules “require the pleader\n to present his claims discretely and succinctly.” Fikes, 79 F.3d at\n 1082 (citation omitted).\n No. 8:17-CV-450-T-33JSS, 2017 WL 770951 (M.D. Fla. Feb. 28, 2017) (Coving-\n ton, J.).\n 17 “Discharging this duty ensures that the issues get defined at the earliest\n\n stages of litigation. The district court ‘should strike the complaint and instruct\n counsel to replead the case—if counsel could in good faith make the represen-\n tations required by Fed. R. Civ. P. 11(b).’” Byrne, 261 F.3d at 1133 n.113 (quot-\n ing Cramer v. Florida, 117 F.3d 1258, 1263 (11th Cir. 1997) (alterations\n adopted)); see also Ebrahimi v. City of Huntsville Bd. of Educ., 114 F.3d 162, 165\n (11th Cir. 1997); Cesnik v. Edgewood Baptist Church, 88 F.3d 902, 905 (11th Cir.\n 1996); Anderson, 77 F.3d at 366–67; Pelletier v. Zweifel, 921 F.2d 1465, 1517–18\n (11th Cir. 1991); Fullman v. Graddick, 739 F.2d 553, 557 (11th Cir. 1984). Such\n action is imperative as\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 112 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 32\n\n that if the plaintiff fails to comply with the court’s or-\n der—by filing a repleader with the same deficiency—\n the court should strike his pleading or, depending on\n the circumstances, dismiss his case and consider the\n imposition of monetary sanctions.\n District court intervention in this fashion accom-\n plishes several objectives. First, it conserves judicial\n and parajudicial resources and thereby benefits liti-\n gants standing in the queue waiting to be heard. Sec-\n ond, it curtails the need for satellite litigation under\n Rule 11, 28 U.S.C. § 1927, or the court’s inherent\n power. Third, it minimizes counsel’s and his client’s\n exposure to a criminal contempt citation. Fourth, it\n limits the potential for post-litigation tort actions for\n abuse of process or malicious prosecution. Fifth, early\n sua sponte intervention—coupled with the imposi-\n\n\n\n a more definite statement, if properly drawn, will present each\n claim for relief in a separate count, as required by Rule 10(b),\n and with such clarity and precision that the defendant will be\n able to discern what the plaintiff is claiming and to frame a re-\n sponsive pleading. Moreover, with the shotgun pleading out\n of the way, the trial judge will be relieved of the cumbersome\n task of sifting through myriad claims, many of which may be\n foreclosed by various defenses. Experience teaches that, unless\n cases are pled clearly and precisely, issues are not joined, dis-\n covery is not controlled, the trial court’s docket becomes un-\n manageable, the litigants suffer, and society loses confidence\n in the court’s ability to administer justice.\n Anderson, 77 F.3d at 366–67 (internal citations and quotation marks\n omitted).\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 113 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 33\n\n tion of punitive measures when the use of abusive lit-\n igation tactics is deliberate—operates as both a spe-\n cific and a general deterrent. And, finally, early sua\n sponte intervention will ensure public confidence in\n the court’s ability to administer civil justice.\n 261 F.3d 1075, 1133–34 (11th Cir. 2001).\n The SEC was familiar with Byrne. It cited that very decision\n in its request that the District Court grant it leave to amend its com-\n plaint if the Court found, as it should have, that the complaint failed\n to meet federal pleading standards. The District Court was familiar\n with the decision as well. It has stated multiple times in the past\n that “courts are under an independent obligation to order a re-\n pleader when faced with a shotgun pleading.” Gregory v. City of Tar-\n pon Springs, No. 8:16-CV-237-T-33AEP, 2016 WL 2961558, at 2\n (M.D. Fla. May 23, 2016) (Covington, J.); Barr v. One Touch Direct,\n LLC, No. 8:15-CV-2391-T-33MAP, 2016 WL 1621696, at 5 (M.D.\n Fla. Apr. 22, 2016) (Covington, J.); Thomas v. Derryberry, No. 8:16-\n CV-3482-T-33AEP, 2017 WL 2267977, at 2 (M.D. Fla. May 24,\n 2017) (Covington, J.); see also U.S. ex rel. Westfall v. Axiom World-\n wide, Inc., No. 8:06-CV-571-T-33TBM, 2009 WL 764528, at 9\n (M.D. Fla. Mar. 20, 2009) (Covington, J.) (“[I]f, in the face of a shot-\n gun complaint, the defendant does not move the district court to\n require a more definite statement, the court, in the exercise of its\n inherent power, must intervene sua sponte and order a repleader.”\n (internal quotation marks omitted)). And it has dismissed shotgun\n complaints when it determined that repleader could not render the\n complaint amenable to a responsive pleading. See Roman v. Grinnell,\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 114 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 34\n\n No. 8:16-CV-3449-T-33AEP, 2017 WL 53978, at 2 (M.D. Fla. Jan.\n 3, 2017) (Covington, J.) (“[T]he Complaint should be dismissed be-\n cause it is unclear what claims Roman is bringing against Tyco. See\n Byrne v. Nezhat, 261 F.3d 1075, 1129–30 (11th Cir. 2001) (noting that\n a complaint that fails to identify claims with sufficient clarity con-\n stitutes a ‘shotgun pleading,’ which must be dismissed).”).\n B. Errors Beget Errors\n Beyond misapplying the law, the District Court’s denial of\n the defendants’ motion to dismiss tarnished the proceedings in at\n least two ways. First, it created an appearance of partiality. Second,\n it deprived the defendants of their due process right to defend the\n action at hand. See Simon v. Craft, 182 U.S. 427, 436, 21 S. Ct. 836,\n 839 (1901) (“The essential elements of due process of law are notice\n and opportunity to defend.”). I consider these two points in order.\n The District Court went out of its way to create a plausible\n claim for the SEC. In Barmapov v. Amuial, I wrote separately to ex-\n plain the intolerable risk to the system this creates:\n District courts are flatly forbidden from scouring\n shotgun complaints to craft a potentially viable claim\n for a plaintiff. By digging through a complaint in\n search of a valid claim, the courts “would give the ap-\n pearance of lawyering for one side of the contro-\n versy.” Jackson v. Bank of Am., N.A., 898 F.3d 1348,\n 1355 n.6 (11th Cir. 2018). This, in turn, would cast\n doubt on the impartiality of the judiciary. Id. Such a\n result is plainly inconsistent with the oath to which\n each judge has sworn.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 115 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 35\n\n 986 F.3d at 1328 (Tjoflat, J., concurring).\n The SEC’s complaint did not identify the “factual content”\n that would permit a court to “draw the reasonable inference that\n the defendant[s were] liable for the misconduct alleged.” Iqbal, 556\n U.S. at 678, 129 S. Ct. at 1949. As a consequence, the defendants\n had to rummage through the 122 paragraphs in an effort to hope-\n fully tie the relevant facts to each of the SEC’s 304 alleged causes of\n action. 18\n But it was the SEC’s burden to notify the defendants of the\n predicate facts supporting each of its causes of action. See Est. of Bass\n v. Regions Bank, Inc., 947 F.3d 1352, 1358 (11th Cir. 2020) (“[A shot-\n gun] pleading is never plain because it is impossible to comprehend\n which specific factual allegations the plaintiff intends to support\n which of his causes of action, or how they do so.”); Keith v. DeKalb\n Cnty., 749 F.3d 1034, 1045 n.39 (11th Cir. 2014) (“By the time a\n reader of the pleading gets to the final count, it is exceedingly diffi-\n cult, if not impossible, to know which allegations pertain to that\n count . . . .”). It clearly was not the District Court’s role to find\n those facts. By assuming that role, the Court invited more ques-\n tions than answers.\n That brings me to the second point. The causes of action of\n Counts III through XIII alleged parallel violations of Section\n\n\n 18 Suppose the defendants’ lawyers erred in identifying the factual content and\n\n focused on facts different from what the SEC’s lawyers would be relying on in\n their closing argument to the jury. What then?\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 116 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 36\n\n 17(a)(1) and (3) and Rule 10b-5(a), (b), and (c). Violations of Section\n 17(a)(1) and Rule 10b-5(a), as alleged in Counts III and V, respec-\n tively, occur when a defendant employs a “device, scheme, or arti-\n fice to defraud.” 15 U.S.C. § 77q(a)(1); 17 C.F.R. § 240.10b-5(a). The\n defendants were entitled, as a matter of fundamental due process,\n to notice of the circumstances constituting this fraud. The District\n Court’s rulings deprived them of such notice.\n The same is true regarding the parallel violations of Section\n 17(a)(3) and Rule 10b-5(c), as alleged in Counts IV and VII, respec-\n tively. Those violations occur when a defendant engages in “any\n act, practice, or course of business which operates or would oper-\n ate as a fraud or deceit upon any person.” 17 C.F.R. § 240.10b-5(c);\n 15 U.S.C. § 77q(a)(3) (providing that it is unlawful to “engage in any\n transaction, practice, or course of business which operates or\n would operate as a fraud or deceit upon the purchaser” in the “offer\n or sale of any securities”). Again, the defendants were entitled, as a\n matter of fundamental due process, to notice of the circumstances\n constituting this fraud.\n Finally, a violation of Rule 10b-5(b), as alleged in Count VI,\n occurs when a defendant “make[s] any untrue statement of a ma-\n terial fact or . . . omit[s] to state a material fact necessary in order\n to make the statements made, in the light of the circumstances un-\n der which they were made, not misleading.” 17 C.F.R. § 240.10b-\n 5(b). As in the case of the previous counts, defendants were entitled\n as a matter of fundamental due process to notice of the circum-\n stance constituting that fraud and the factual content supporting\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 117 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 37\n\n the untrue statements made or omitted. But the District Court’s\n rulings deprived them of such notice.\n IV. PROCEEDINGS CONTINUE\n In this Part, I walk through the subsequent stages of litiga-\n tion, taking particular note of the pretrial conference and the craft-\n ing of the jury instructions. The defendants’ consistent objections\n to the complaint’s lack of specificity combined with the District\n Court’s “fill in the blank” approach to drafting the jury instructions\n shows that the defendants were continually deprived of the notice\n they needed to mount a defense.\n As recapped in Part I supra, the SEC presented its 260-plus\n fraud claims in Counts III through XIII. The following claims are\n pertinent here:\n (1) Defendants violated Section 17(a)(1) and (3) (Counts III and\n IV);\n (2) Defendants violated Rule 10b-5(a) through (c) (Counts V\n through VII);\n (3) Defendants aided and abetted the Fraudsters’ violation of\n Section 17(a)(1), (2), and (3) (Counts VIII through X);\n (4) Defendants aided and abetted the Fraudsters’ violation of\n Rule 10b-5(a), (b), and (c) (Counts XI through XIII).\n * * \n Once the District Court denied the motion to dismiss, allow-\n ing these claims to proceed, the SEC’s strategy was set. The SEC\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 118 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 38\n\n would prosecute these claims without identifying—much less stat-\n ing with particularity—the circumstances constituting the alleged\n fraud as Rule 9(b) required. 19\n The reality is that the SEC’s case was not built on violations\n of Section 17(a)(1) or (3) or Rule 10b-5(a) or (c). 20 Rather, it was\n built exclusively on the “untrue statements” provisions of each law:\n Section 17(a)(2) and Rule 10b-5(b). Whittling down the complaint\n to these claims and stating them in separate counts would have\n done wonders to isolate the relevant facts, force the SEC to plead\n those facts with particularity, and provide fair notice to the defend-\n ants. Perhaps the SEC’s inclusion of the other claims in its com-\n plaint helped obfuscate the fact that the only plausible claims in the\n complaint were plagued with systemic ambiguity?\n A. Proposed Jury Instructions & Charge Conference\n On January 13, 2021, the parties ﬁled a Joint Pretrial State-\n ment with eleven exhibits attached. Among the exhibits were the\n parties’ Joint Proposed Jury Instructions, which included the SEC’s\n\n\n 19 To state the circumstances of the fraud that the fraud counts alleged, the\n SEC would have to amend its complaint pursuant to Rule 15(a)(2) of the Fed-\n eral Rules of Civil Procedure via the defendants written consent or with leave\n of the District Court.\n 20 The alleged violations of Section 17(a)(1) and Rule 10b-5(a), based on a “de-\n\n vice, scheme, or artifice to defraud,” were window dressing. So too were the\n violations of Section 17(a)(3) and Rule 10b-5(c), which are based on a “practice,\n or course of business which operates or would operate as a fraud or deceit\n upon any person.” In reality, the SEC only alleged violations in the form of\n misstatements or material omissions.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 119 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 39\n\n proposed instructions and, where relevant, the defendants’ objec-\n tions and alternate proposals. Both sides used the Eleventh Circuit\n Pattern Jury Instructions for Civil Cases in presenting their pro-\n posed instructions.\n Eleventh Circuit Pattern Instruction 6.2, designed for Rule\n 10b-5(b), formed the basis for the instruction on Count VI. That\n pattern instruction reads, in part:\n [If the SEC brings the case, add the following: The\n SEC does not need to identify any particular purchase\n or sale of securities by a speciﬁc person, including\n [name of defendant]. Rather, it’s enough if the SEC\n proves that the misrepresentation or omission in-\n volved or touched any purchase or sale of a security\n in any way.] The SEC claims that [name of defendant]\n made the following misrepresentations or omissions:\n [Describe the speciﬁc statements or omissions claimed to\n have been fraudulently made.].\n Pattern Civ. Jury Instr. 11th Cir. 6.2 at 5 (2025) (emphasis added).\n The ﬁnal sentence, in conspicuously labeled brackets, called\n for the SEC to describe the “speciﬁc statements or omissions” it\n alleged were fraudulent. But the SEC was not keen to acquiesce.\n Indeed, it reproduced the above-excerpted paragraph almost in its\n entirety, with the ﬁnal sentence omitted. The SEC’s proposal read:\n The SEC does not need to identify any particular pur-\n chase or sale of securities by a speciﬁc person, includ-\n ing Spartan, Island, Dilley, or Eldred. Rather, it’s\n enough if the SEC proves that the misrepresentation\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 120 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 40\n\n or omission involved or touched any purchase or sale\n of a security in any way.\n Joint Proposed Jury Instrs. at 69.\n The defendants objected to the omission. They also objected\n to combining in one instruction the violations of Rule 10b-5(a), (b),\n and (c) alleged in Counts V, VI, and VII.\n The same defect arose with Count IX, where the SEC alleged\n that the defendants aided and abetted the Fraudsters’ material mis-\n statements or omissions. There, Eleventh Circuit Pattern Instruc-\n tion 6.9, designed for Section 17(a)(2), was on point. See Pattern Civ.\n Jury Instr. 11th Cir. 6.9 (2025). Like their proposed Count VI in-\n struction, the SEC’s Count IX instruction omitted the crucial brack-\n eted portion of the pattern instructions: “[Describe the alleged mis-\n representations or omissions claimed to have been fraudulently\n made.]” Compare Id. at 1–3 with Joint Proposed Jury Instrs. at 62.\n The defendants objected again.\n On July 7, 2021, the parties presented the District Court with\n revised Joint Proposed Jury Instructions. The new instructions\n were, in all relevant respects, the same as the original version. The\n defendants once again objected to the SEC’s refusal to describe the\n fraudulent statements supporting their fraud counts. And once\n again they objected to the composite instruction for Counts V, VI,\n and VII—stating that the SEC “must prove its case against each de-\n fendant, and for each count it must prove each element.”\n The Final Pretrial Conference occurred on Friday, July 9,\n 2021, and there was no discussion of the jury instructions. The trial\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 121 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 41\n\n began on Monday, July 12. On Thursday, July 22, the Court in-\n formed the parties that it would hold a “charge conference” the\n next day at 2:00 p.m., and it explained that it had “some questions”\n about the proposed jury instructions. The conference was held on\n July 23 as scheduled, although the Court stated that it was not ac-\n tually the charge conference but rather “a preliminary meeting.”\n The Court provided counsel with a draft of its tentative jury in-\n structions, to which the defense counsel lodged objections.\n Defense counsel explained that the instructions on the fraud\n counts lacked speciﬁcity and that their failure to “describe the al-\n leged scheme or device” was “a major concern.” 21 They highlighted\n analogous securities fraud proceedings, arguing that courts ubiqui-\n tously require the plaintiﬀ to provide “an itemized list,” explaining\n “this is the scheme, these are the allegations.”\n\n\n\n\n 21 Defense counsel was referring to Eleventh Circuit Civil Pattern Jury Instruc-\n\n tion 6.1 –– Device, Scheme, or Artifice to Defraud (designed for Rule 10b-5(a)\n claims). The instruction applied to the Count V causes of action. It required\n the filling out of brackets as follows: “[Name of plaintiff/The SEC] claims that\n the scheme or device [name of defendant] employed was [describe the alleged\n scheme or device].” Pattern Civ. Jury Instr. 11th Cir. 6.1 at 3 (2025). In addi-\n tion, Counsel was referring to Eleventh Circuit Civil Pattern Jury Instruction\n 6.8 — Fraud In the Offer and Sale of a Security Through A Device, Scheme,\n or Artifice to Defraud –– SEC Version (designed for Section 17(a)(1) claims).\n The instruction applied to the Count III causes of action. It required the filling\n out of brackets as follows: “The SEC has alleged that the scheme or device\n [name of defendant] employed [describe the alleged scheme or device].” Pat-\n tern Civ. Jury Instr. 11th Cir. 6.8 at 3 (2025).\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 122 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 42\n\n As the meeting wore on, defense counsel explained that it\n was “really impossible” for his clients to defend against the fraud\n counts. After an extended discussion on the issue, counsel summa-\n rized his position:\n When the SEC is asserting that the defendants aided\n and abetted the following misrepresentations of fact\n or misrepresentations of fact by Mirman, Rose, Daniels,\n et cetera. If they never tell us what those are, then\n there’s no possible way to defend against them. I\n mean, this is just sort of a basic issue of fairness.\n (emphasis added) 22\n Purporting to understand these concerns, the District Court\n instructed the SEC to, “over the weekend . . . take some time to\n come up with these statements that [it thought] would be appro-\n priate or . . . a short analysis . . . of the speciﬁc statements or omis-\n sions that have been made.” 23\n On Tuesday, July 27, the Court checked in with the parties\n\n 22 Defense counsel was referring to the pattern instructions for the causes of\n\n action alleged in Counts IX and XII alleging the Fraudsters’ violations of Section\n 17(a)(2) Rule 10b-5(b), respectively.\n 23 The Court was referring to Eleventh Circuit Civil Pattern Jury Instruction\n\n 6.9 –– Misrepresentation or Omission in the Offer or Sale of a Security –– SEC\n Version (designed for Section 17(a)(2) claims). The instruction applied to the\n Count IX aiding and abetting causes of action based on the Fraudsters’ misrep-\n resentations and omissions. It required the filling out of the following brackets:\n “[Describe the alleged misrepresentations or omissions claimed to have been\n fraudulently made.].” Pattern Civ. Jury Instr. 11th Cir. 6.9 at 3 (2025); see also\n Pattern Civ. Jury Instr. 11th Cir. 6.2 at 5 (2025).\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 123 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 43\n\n to see what remained pending. The following exchange took place:\n DEFENSE COUNSEL: The only thing that’s out-\n standing at this point that I’m aware of is the list of\n misrepresentations or alleged schemes to defraud.\n We had asked for that on Friday. I have not received\n that from the SEC.\n\n THE COURT: You did. You did. Right. I had forgot-\n ten about that. So what’s going on with that?\n\n SEC COUNSEL: Your Honor, we actually have --\n we’ve been working on revisions to the instructions.\n So for the -- the ones that we do have redlines that we\n were taking into account things that we discussed the\n other day, should I file them and send them via e-mail\n tonight?\n ...\n\n THE COURT: -- I would send it to chamber’s e-mail.\n On Wednesday, July 28, the Court convened the charge con-\n ference at 4:56 p.m. At this point, the defendants had still not been\n presented with the fraudulent statements they had long requested.\n The Court explained that it would get them soon:\n I mean, we have these jury instructions to go through\n . . . [but] I have to be at another part of downtown at\n 5:30, but I think that I at least have some time to get\n started on this, about 10 to 15 minutes. So we can\n make a dent in this, but it’s not going to be finished.\n All right? So we’ll have to come up with an alternate\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 124 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 44\n\n time.\n ...\n\n THE COURT: . . . So what I’ve got, it’s basically the\n Eleventh Circuit Pattern Instruction 6.2 altered to\n combine Rule 10b-5(a) through (c) with some other\n changes as well. I mean, I pretty much think I can live\n with this. Let’s see. . . . If you have anything for me to\n consider, let me know.\n ...\n\n THE COURT: . . . All right. So we will copy these\n tonight so that you have -- or early in the morning so\n that, when you come in at 9:00, you will have [the\n jury instructions]. . . . I give a package to each juror\n so they read through as I do. I think it’s going to take\n me at least an hour to read this.\n B. Final Jury Instructions\n After receiving the parties’ Joint Proposed Jury Instructions,\n just three days before the trial was to begin, the Court realized they\n were unacceptable. The SEC could not present a plausible case to\n the jury if the bracketed portions of the pattern instructions were\n omitted or left blank. Of course, this problem was not new. It arose\n when the SEC, in obvious disregard of Rule 9(b), failed to state with\n particularity the fraud forming the basis of the case in its com-\n plaint. But the Court had allowed the SEC’s case to go forward—at\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 125 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 45\n\n an enormous cost to the parties, the Middle District of Florida\n docket, and the litigants standing in line waiting to be heard.\n At this point, the Court had two options. It could unwind\n the litigation, revisit its ruling on the motion to dismiss, and order\n repleader. Or it could ﬁll in the blanks. The Court chose the second\n option, scouring the complaint’s 122 paragraphs to craft jury in-\n structions that would identify the fraudulent conduct needed for\n Counts III through XIII. As it turned out, the Court was able to\n describe the fraudulent conduct alleged in only four Counts: III, V,\n IX, and XII.\n Counts III and V alleged that the defendants violated Section\n 17(a)(1) and Rule 10b-5(a) by employing a “device, scheme, or arti-\n ﬁce to defraud” in relation to the sale of the Fraudsters’ shell-com-\n pany securities (the “Defendants’ Scheme”). The Court drafted the\n following description for the jury on those counts:\n The SEC has alleged that Spartan, Island, Dilley, or El-\n dred violated Section 17(a)[1] of the Securities Act\n when Dilley schemed with Mirman and Rose, and El-\n dred schemed with Daniels, Fan and Harrison, to de-\n fraud the public that the Mirman/Rose Companies\n and Daniels/Harrison/Fan Companies were operat-\n ing businesses with independent management and\n shareholders, rather than undisclosed “blank check”\n or “shell” companies for sale. The SEC contends that\n in furtherance of the Mirman/Rose scheme, Spartan\n and Dilley signed and submitted false Form 211 appli-\n cations to FINRA; Spartan, Island and Dilley contrib-\n uted to false DTC applications; Dilley found potential\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 126 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 46\n\n shell buyers; Dilley and Island signed an escrow agree-\n ment and false attestation letters for shell buyers; and\n Dilley and Island eﬀectuated the bulk transfer of the\n entire deceptive public ﬂoat of Mirman/Rose Com-\n panies to shell buyers. The SEC alleges that Spartan\n and Eldred similarly schemed with Daniels, Harrison,\n and Fan by ﬁling false Forms 211 with FINRA, all in\n support of the manufacture of undisclosed blank\n check companies – one of which Eldred expressly\n proposed to acquire himself while its Form 211 was\n pending.\n The SEC claims that Spartan Securities and Island\n Stock Transfer provided various services which were\n critical to the Mirman/Rose and Daniels/Harri-\n son/Fan shell factories, including ﬁling a Form 211\n application with FINRA to demonstrate compliance\n with Rule 15c2-11. Finally, the SEC contends that\n Spartan, Dilley and Eldred Securities also had infor-\n mation that undermined any reasonable basis that the\n information required by Rule 15c2-11 was materially\n accurate and from a reliable source.\n Jury Instr. No. 16.\n Then, the District Court used this same language from the\n Defendants’ Scheme to describe the fraudulent conduct of Counts\n VIII 24 and XI, which alleged that the Fraudsters employed a “device,\n\n\n\n 24 Without attempting to describe the SEC’s specific allegations, the Court’s\n\n instruction on Count VIII simply stated, “To determine whether Mirman,\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 127 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 47\n\n scheme, or artiﬁce to defraud,” and that the defendants “provided\n substantial assistance” thereto. In doing so, the Court misinformed\n the jury regarding who orchestrated the scheme. The Court’s in-\n structions, contrary to the SEC’s complaint, implied that the de-\n fendants were the primary violators.\n Similarly, Counts X and XIII alleged that the Fraudsters vio-\n lated Section 17(a)(3) and Rule 10b-5(c) by engaging in an “act,\n practice, or course of business which operates or would operate as\n a fraud or deceit upon any person,” and that the defendants were\n aiders and abettors. But in its instructions, the Court simply\n pointed the jury to the Defendants’ Scheme. 25 In doing so, the\n Court again misinformed the jury that the defendants were the pri-\n mary violators.\n The instructions on Count VI, IX, and XII were also ﬂawed.\n Those counts alleged “untrue statements [or omissions] of mate-\n rial fact” in violation of Rule 10b-5(b) and Section 17(a)(2). Count\n\n Rose, Daniels, Fan, or Harrison violated Section 17(a)(1), you should use the\n elements and definitions I gave you regarding Count III.” Jury Instr. No. 18.\n 25 The Court combined the instructions for Counts VIII, IX, and X in Jury In-\n\n struction 18. It stated: “To determine whether Mirman, Rose, Daniels, Fan, or\n Harrison violated Section 17(a)(3), you should use the elements I gave you\n regarding Count IV.” Jury Instr. No. 18. The Court combined the instructions\n for Counts XI, XII and XIII in Instruction 20. It stated, “To determine whether\n Mirman, Rose, Daniels, Fan, or Harrison violated Section 10(b) and Rule 10b-\n 5, you should use the elements and definitions I gave you for Counts V, VI,\n and VII.” Jury Instr. No. 20. The Court’s only factual content in Instruction 20\n relates Count XII and is a copy of its Count IX instruction on 17(a)(2). I will\n discuss these instructions in turn.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 128 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 48\n\n VI alleged that the defendants were the statement-makers at issue,\n while Counts IX and XII alleged that the Fraudsters were the state-\n ment-makers.\n Recall that at the July 23 “preliminary meeting,” the Court\n directed the SEC to “come up with . . . the speciﬁc statements or\n omissions that have been made.” The SEC drafted a description of\n alleged statements made only by the defendants, but not the Fraud-\n sters:\n The SEC contends that Spartan, Island, Dilley, and El-\n dred made misrepresentations and omissions to,\n among others, FINRA, DTC participants, and securi-\n ties purchasers. The SEC claims that Spartan, Dilley,\n and/or Eldred made misrepresentations and omis-\n sions in the filing of 15c2-11 applications and submis-\n sions, including, but not limited to:\n • Alvin Mirman and Sheldon Rose’s involvement\n and/or role in the issuers;\n • Mirman and Rose’s control of the issuers;\n • Whether the issuers were shells or blank check\n companies;\n • That the issuers had no consultants;\n • The true business purpose of the issuers;\n • Communications with CEOs/Presidents of the is-\n suers;\n • The relationships and affiliations among share-\n holders and Mirman and Rose;\n • The solicitations of the shareholders;\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 129 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 49\n\n • The issuers’ plans for potential mergers or acqui-\n sitions;\n • That the issuers’ shareholders have control of\n their shares;\n • That Spartan conducted due diligence on the issu-\n ers;\n • Spartan and Island’s relationship with Sheldon\n Rose and Alvin Mirman, Diane Harrison, Michael\n Daniels and Andy Fan;\n • Michael Daniels, Diane Harrison, and Andy Fan’s\n involvement in the issuers;\n • Circumstances surrounding the Form 211 submis-\n sions, including the identity of the person for\n whom the quotation is being submitted;\n • That there are no other issuers that the current of-\n ficers or directors of the issuers have requested a\n listing quotation on;\n • That there was no material information, including\n adverse information regarding the issuer that the\n firm is aware of or has in its possession.\n • Spartan, Island, and Dilley initiated and provided\n false information for applications filed with the\n DTC, including misrepresenting the shell status of\n issuers.\n • Island and Dilley made misrepresentations and\n omissions regarding the designation of the securi-\n ties as free trading.\n • Island and Dilley made misrepresentation [sic] and\n omissions when effectuating the bulk issuance and\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 130 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 50\n\n transfer of securities, including stock certificates\n without restrictive legends.\n Jury Instr. No. 19. 26\n This description did not, in any sense, comply with Rule\n 9(b). None of its bullet points constituted a statement a defendant\n made in a document or to a person or entity on a date in connec-\n tion with the purchase or sale of securities. The bullet points surely\n alluded to statements being made. But they did nothing to identify\n such statements for the jury, nor did they provide sufficient context\n for the jury to go find them. The same was true of the “omissions.”\n Who omitted what, and when? What statements could have been\n cured without the omissions? Not to be deterred, the District Court\n inserted this description into the instruction for Count VI and sent\n it to the jury.\n What about Counts IX and XII, which alleged statements\n made by the Fraudsters? With no help from the SEC, the Court, on\n its own initiative, drafted the following instruction for those counts:\n [T]he SEC must prove that someone made a misrep-\n resentation of material fact or an omission of mate-\n rial fact.\n The SEC claims that Mirman, Rose, Daniels, Fan, or\n Harrison are responsible for the following misrepresenta-\n tions of fact or omissions. The SEC allege that Rose and\n\n 26 The record does not clearly reveal whether the Court or the SEC drafted\n\n Instruction 19 on Count VI. However, following the Court’s directive, it ap-\n pears that it was most likely drafted by the SEC.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 131 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 51\n\n Mirman recruited persons to act as straw CEOs, to\n fraudulently obtain the effective registration of shell\n companies with the SEC, through the use of false and\n fraudulent statements and documents that were sub-\n mitted to the SEC for this purpose. The SEC contends\n that a further purpose of the [Rose and Mirman]\n scheme was to issue unrestricted stock for these com-\n panies that could be secretly controlled by them. This\n was allegedly done so that Rose and Mirman would\n be in a position to control all or nearly all of the pub-\n licly traded shares of the companies, so that when\n they later sold a shell company, part of the sale would\n include the undisclosed transfer of the unrestricted\n free trading shares to the purchaser. In this way, the\n purchaser of the shell company would be in a position\n to engage in fraudulent schemes, such as “pump and\n dump” stock swindles.\n The SEC further alleges that Daniels, Fan, and Harri-\n son manufactured undisclosed blank check compa-\n nies based on a deceptive public float of purportedly\n unrestricted shares. Harrison and her husband, Dan-\n iels, allegedly manufactured at least five public com-\n panies. The Form 211s, including the responses to\n FINRA’s deficiency letters, contained misrepresenta-\n tions with respect to the management, business pur-\n pose, and shareholders to give the false appearance of\n an operating company with a specific business plan\n (i.e. no plans to seek a merger or acquisition), inde-\n pendent management and an independent share-\n holder base. The SEC contends that Daniels and Har-\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 132 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 52\n\n rison sold their first company to Fan as part of his en-\n deavor to amass a roster of public companies for later\n reverse mergers with Chinese companies. Daniels\n and Fan then allegedly agreed to create three more\n public vehicles from scratch.\n Jury Instr. No. 18 (emphasis added). 27\n Like the description in Jury Instruction 19, this description\n failed to specifically ascertain any actionable statements or omis-\n sions. Further, it did not identify how, if at all, the defendants\n “knowingly or recklessly provided substantial assistance” to the\n Fraudsters in the making of these statements.\n Setting the voluminous issues with the jury instructions\n aside, the extraordinary measures the District Court took in their\n crafting reveal that it was, in effect, prosecuting the SEC’s case. The\n Court could have aborted the proceedings on numerous occasions,\n all in acknowledging defendants’ rights to due process and fair\n treatment, but it chose to go forward instead.\n\n\n\n\n 27 This instruction is reproduced in Jury Instruction 20 on Count XIII, except\n\n for this language: “[T]he SEC must prove that someone made a misrepresen-\n tation of material fact or an omission of material fact. The SEC claims that\n Mirman, Rose, Daniels, Fan, or Harrison are responsible for the following mis-\n representations of fact or omissions.”\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 133 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 53\n\n V. GROUNDS FOR REVERSAL\n In this Part, I explain why district court proceedings, like\n those in the instant case, that lack any meaningful notion of funda-\n mental fairness cannot be allowed to stand. I identify two inde-\n pendent grounds for reversal.\n A. Erroneous Denial of the Motion to Dismiss\n This Dissent has explained, at length, why the SEC’s com-\n plaint was abominable. It was a prototypical shotgun pleading that\n failed to even approach the level of requisite speciﬁcity to satisfy\n the Federal Rules of Civil Procedure. But we are, admittedly, well\n past the motion to dismiss stage. Here, I explain why I believe—at\n least in this extraordinary circumstance—that an erroneous ruling\n on a motion to dismiss may constitute grounds for setting aside a\n judgment after trial.\n To begin, it is important to understand why our review is\n taking place now, rather than when the motion to dismiss was de-\n nied. This Court is vested with limited jurisdiction, generally lim-\n ited to “jurisdiction of appeals from all ﬁnal decisions of the district\n courts.” 28 U.S.C. § 1291. “A ‘ﬁnal decision’ is typically one by which\n a district court disassociates itself from a case.’” Mohawk Indus., Inc.\n v. Carpenter, 558 U.S. 100, 106, 130 S. Ct. 599, 604–05 (2009) (quoting\n Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 42, 115 S. Ct. 1203, 1208\n (1995)) (alteration adopted) (internal quotation marks omitted).\n “From the very foundation of our judicial system,” Congress has\n expressed a policy to “save the expense and delays of repeated ap-\n peals in the same suit, and to have the whole case and every matter\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 134 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 54\n\n in controversy in it decided in a single appeal.” McLish v. Roﬀ, 141\n U.S. 661, 666–67, 12 S. Ct. 118, 120 (1891).\n There are two caveats that may permit an appeal before the\n district court reaches a ﬁnal disposition. First, the Supreme Court\n has long held that there are “a small category of decisions that, alt-\n hough they do not end the litigation, must nonetheless be consid-\n ered ‘ﬁnal.’” Swint, 514 U.S. at 42, 115 S. Ct. at 1208 (quoting Cohen\n v. Beneﬁcial Indus. Loan Corp., 337 U.S. 541, 546, 69 S. Ct. 1221, 1225–\n 26 (1949)). But “[t]hat small category includes only decisions that\n are conclusive, that resolve important questions separate from the\n merits, and that are eﬀectively unreviewable on appeal from the\n ﬁnal judgment in the underlying action.”28 Id. Second, 28\n U.S.C. § 1292 creates a narrow class of appealable interlocutory or-\n ders—orders that do not constitute ﬁnal judgments but are none-\n theless appealable. This class includes, among other things, orders\n so certiﬁed by a district judge to include “a controlling question of\n law as to which there is substantial ground for diﬀerence of opinion\n and that an immediate appeal . . . may materially advance the ulti-\n mate termination of the litigation.” 28 U.S.C. § 1292(b).\n Here, the District Court’s denial of the defendants’ Rule\n 12(b)(6) motion to dismiss the SEC’s complaint was neither a ﬁnal\n order that disposed of the litigation nor did it otherwise qualify for\n\n\n 28 Famously, when a district court denies a defendant’s claim of qualified im-\n\n munity, it constitutes an appealable final decision “notwithstanding the ab-\n sence of a final judgment.” Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S. Ct. 2806,\n 2817 (1985).\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 135 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 55\n\n immediate review. The same is true of the District Court’s denial\n of the defendants’ Rule 56 motion for summary judgment and Rule\n 50(a) motion for judgment as a matter of law. In short, this is the\n ﬁrst opportunity for our Court to review all pre- and post-trial de-\n cisions made by the lower court.\n When the District Court denied the motion to dismiss, the\n train departed from the tracks, and it would have been nearly im-\n possible to correct course. Is there some legal principle that says\n this Court cannot, due to the passage of time and advancement\n through discovery and trial, go back in time to review that critical\n decision? I argue there is not.\n The Supreme Court endorsed this common-sense notion in\n Dupree v. Younger, 598 U.S. 729, 143 S. Ct. 1382 (2023). There, Kevin\n Younger sued Maryland correctional oﬃcer Neil Dupree for alleg-\n edly using excessive force in violation of Younger’s Fourteenth\n Amendment due process rights. Id. at 734, 143 S. Ct. at 1387.\n Dupree moved for summary judgment, arguing that Younger\n “failed to exhaust his administrative remedies as required by the\n Prison Litigation Reform Act.” Id. The district court denied the mo-\n tion on the grounds that the state prison system had internally in-\n vestigated the incident, which satisﬁed Younger’s exhaustion obli-\n gation. Id. At trial, the jury found Dupree liable and awarded\n Younger $700,000. Id.\n Dupree did not re-assert the exhaustion argument in either\n a Rule 50(a) motion for judgment as a matter of law or a renewed\n motion under Rule 50(b). Id. But he did seek to have the Fourth\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 136 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 56\n\n Circuit review that issue on appeal. Id. at 733, 143 S. Ct. at 1388.\n The Fourth Circuit declined, relying on its own binding precedent\n that required all issues to be renewed in a post-trial motion in order\n for them to be preserved for appellate review. Id. The Supreme\n Court granted certiorari to resolve a circuit split. Id.\n The Court explained that, because interlocutory orders “are\n typically not immediately appealable,” the “general rule is that a\n party is entitled to a single appeal, to be deferred until ﬁnal judg-\n ment has been entered, in which claims of district court error at\n any stage of the litigation may be ventilated.” Id. at 734, 143 S. Ct.\n at 1388 (internal quotation marks omitted) (quoting Quackenbush,\n 517 U.S. at 712, 116 S. Ct. at 1718). It acknowledged that some rul-\n ings are “unreviewable after ﬁnal judgment because they are over-\n come by later developments in the litigation.” Id. at 734, S. Ct. at\n 1389. For example, “[f ]act-dependent rulings must be appraised in\n light of the complete trial record,” therefore “a party must raise a\n suﬃciency-of-the-evidence claim in a post-trial motion to preserve\n it for review on appeal.” Id. The Court, though, refused to extend\n this renewal preservation requirement to purely legal issues:\n From the reviewing court’s perspective, there is no\n beneﬁt to having a district court reexamine a purely\n legal issue after trial, because nothing at trial will have\n given the district court any reason to question its\n prior analysis. We therefore hold that a post-trial mo-\n tion under Rule 50 is not required to preserve for ap-\n pellate review a purely legal issue resolved at sum-\n mary judgment.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 137 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 57\n\n Id. at 736, 143 S. Ct. at 1389.\n Returning to the case at hand, the question of whether the\n SEC’s complaint satisﬁed federal pleading standards is plainly a\n question of law. That analysis would not morph throughout the\n proceedings or be “overcome by later developments,” and there\n would be no beneﬁt for the defendants to re-raise the issue on sub-\n sequent motions below. See Luke Meier, The Reviewability of Denied\n Twombly Motions, 84 U. Cin. L. Rev. 1145, 1199 (2016) (“[The]\n Twombly analysis is a unique analysis that is not replicated at later\n stages of the trial court proceedings.”).\n Therefore, Dupree tells us that the defendants adequately\n preserved their right to appeal the District Court’s erroneous legal\n conclusions in ruling on the motion to dismiss. Logic dictates this\n same outcome; if the defendants could not appeal the denial of\n their motion to dismiss now, they would never have the oppor-\n tunity to do so. 29 This would give district courts carte blanche to\n ﬂout binding precedent when denying motions to dismiss.\n The Majority Opinion points out that the defendants did not\n appeal the District Court’s denial of the motion to dismiss in its\n initial brief. Thus, they argue, the defendants abandoned the issue.\n But when briefs were submitted, the defendants could not have\n known they were allowed to appeal on motion-to-dismiss grounds.\n\n\n 29 And, of course, requiring defendants to inundate district courts with argu-\n\n ments about the pleadings after a motion to dismiss is denied would make no\n practical sense.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 138 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 58\n\n Our Court (pre-Dupree) has refused to look at motions to dismiss\n after trial. In a 2021 decision, we declined to entertain the appel-\n lant’s argument that the appellees’ allegations lacked “reasonable\n particularity” because, we explained, “those concerns dissipate\n when, as here, the alleged [causes of action] have been litigated and\n adjudicated in a full-blown trial.” iControl Sys., USA, 21 F.4th at 1273\n n.2.\n This iControl holding ﬁnds itself squarely at odds with\n Dupree’s instruction that “a party is entitled to a single appeal, to be\n deferred until ﬁnal judgment has been entered, in which claims of\n district court error at any stage of the litigation may be ventilated.”\n Dupree, 598 U.S. at 734, 143 S. Ct. at 1388 (internal quotation marks\n omitted) (emphasis added) (quoting Quackenbush, 517 U.S. at 712,\n 116 S. Ct. at 1718). However, Dupree was not decided until the win-\n dow for brieﬁng had closed in the instant case. Under such circum-\n stances, should we fault the litigants for not predicting this devel-\n opment and look the other way in the face of manifest injustice in\n an eﬀort to rigidly adhere to “the principle of party presentation?”\n We should not.\n The party-presentation principle represents the general no-\n tion that the litigants “frame the issues for decision” and the court\n acts as the “neutral arbiter of matters the parties present.” Clark v.\n Sweeney, No. 25-52, 2025 WL 3260170, at 1 (U.S. Nov. 24, 2025)\n (internal quotation marks omitted) (quoting United States v.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 139 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 59\n\n Sineneng-Smith, 590 U.S. 371, 375, 140 S. Ct. 1575, 1579 (2020)). 30 Is-\n sues that are not briefed before the court, then, are generally con-\n sidered to be forfeited. 31 But this judge-made principle is “supple,\n not ironclad.” Sineneng-Smith, 590 U.S. at 376. 140 S. Ct. at 1579.\n “The degree to which we adhere to the prudential practice of for-\n feiture and the conditions under which we will excuse it are up to\n us as an appellate court.” Campbell, 26 F.4th at 873.\n In our en banc Campbell opinion, we explained the ﬁve situ-\n ations where “we may exercise our discretion to consider a for-\n feited issue:”\n (1) the issue involves a pure question of law and re-\n fusal to consider it would result in a miscarriage of\n\n\n 30 The majority overstates the holdings of Clark and Sineneng-Smith. Neither\n\n opinion stands for the idea that a court of appeals can never decide an appeal\n based on a legal theory not raised by either party. Rather, in Clark, the Su-\n preme Court held that “[t]he Fourth Circuit’s ‘radical transformation’ of\n Sweeney’s simple ineffective-assistance claim ‘departed so drastically from the\n principle of party presentation as to constitute an abuse of discretion.’” 2025\n WL 3260170, at *2 (quoting Sineneng-Smith, 590 U.S. at 375, 140 S. Ct. at 1578).\n In other words, it is sometimes within the court of appeals’ discretion to decide\n an issue on grounds not raised by the parties. Furthermore, in both Clark and\n Sineneng-Smith, the issue raised by the court of appeals was not litigated at the\n district court—meaning that the record was not properly developed. Here, all\n pertinent issues were fully litigated at the District Court.\n 31 Forfeited issues stand in contrast to issues that are “waived.” “Although ju-\n\n rists often use the words interchangeably, forfeiture is the failure to make the\n timely assertion of a right; waiver is the intentional relinquishment or aban-\n donment of a known right.” Campbell, 26 F.4th at 872 (quoting Kontrick v. Ryan,\n 540 U.S. 443, 458 n.13, 124 S. Ct. 906, 917 n.13 (2004)).\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 140 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 60\n\n justice; (2) the party lacked an opportunity to raise\n the issue at the district court level; (3) the interest of\n substantial justice is at stake; (4) the proper resolution\n is beyond any doubt; or (5) the issue presents signiﬁ-\n cant questions of general impact or of great public\n concern.\n Id. at 873 (citing Access Now, Inc. v. Sw. Airlines Co., 385 F.3d\n 1324, 1332 (11th Cir. 2004)).\n We emphasized that the party-presentation rule is “pruden-\n tial, not jurisdictional” and that “we ought to be able to excuse a\n violation of the rule ‘when prudence dictates.’” Id. at 873–74 (quot-\n ing Davis v. United States, 512 U.S. 452, 464, 114 S. Ct. 2350, 2358\n (1994) (Scalia, J., concurring)). Though “a party loses the right to\n demand consideration of an abandoned issue,” this Court retains\n the discretion to consider it sua sponte if we ﬁnd the “issue is ex-\n traordinary enough . . . [to] excuse the forfeiture.” Id. at 874–75. In\n 1941, Justice Black spoke broadly of the imperative to not let pru-\n dential rules stand in the way of justice:\n Rules of practice and procedure are devised to pro-\n mote the ends of justice, not to defeat them. A rigid\n and undeviating judicially declared practice under\n which courts of review would invariably and under\n all circumstances decline to consider all questions\n which had not previously been speciﬁcally urged\n would be out of harmony with this policy. Orderly\n rules of procedure do not require sacriﬁce of the rules\n of fundamental justice.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 141 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 61\n\n Hormel v. Helvering, 312 U.S. 552, 557, 61 S. Ct. 719, 721 (1941); see\n also Unites States v. Atkinson, 297 U.S. 157, 160, 56 S. Ct. 391, 392\n (1936) (“In exceptional circumstances . . . appellate courts, in the\n public interest, may, of their own motion, notice errors to which\n no exception has been taken, if the errors are obvious, or if they\n otherwise seriously aﬀect the fairness, integrity, or public reputa-\n tion of judicial proceedings.”).\n Here, the defendants had no notice of their ability to appeal\n the District Court’s denial of the motion to dismiss after trial. But\n the lower court’s error was obvious and precipitated a manifest\n miscarriage of justice. Refusing to consider the issue, as the Major-\n ity does, to cling to a prudential doctrine makes little sense.\n I would reverse the judgment on the grounds that the SEC’s\n complaint was inadequate, tainted the subsequent proceedings,\n and debilitated the defendant’s ability to mount a proper defense.\n As this Court has explained, shotgun complaints “undermine[] the\n public’s respect for the courts,” drain the “time and resources the\n court[s have] available to reach and dispose of the cases and liti-\n gants waiting to be heard,” and “wreak havoc on appellate court\n dockets.” Davis, 516 F.3d at 982. This is more important, not less,\n when a shotgun complaint is allowed to form the basis of a litiga-\n tion that proceeds to trial.\n B. Judicial Impartiality\n The SEC ﬁled a complaint no district judge would readily\n accept. The SEC’s lawyers surely anticipated it would be rough\n sledding. They were aware of this Court’s decision in Byrne v.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 142 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 62\n\n Nezhat, and relied on it in requesting the District Court grant them\n leave to amend the complaint if the Court concluded it was legally\n insuﬃcient.\n Here is what Byrne told the lawyers:\n Shotgun pleadings, if tolerated, harm the court by\n impeding its ability to administer justice. The time a\n court spends managing litigation framed by shotgun\n pleadings should be devoted to other cases waiting to\n be heard. ‘‘[W]ast[ing] scarce judicial and parajudicial\n resources . . . impedes the due administration of jus-\n tice’’ and, in a very real sense, amounts to obstruction\n of justice. United States v. Silverman, 745 F.2d 1386,\n 1395 (11th Cir. 1984). See also United States v. Essex, 407\n F.2d 214, 218 (6th Cir. 1969). Although obstruction of\n justice is typically discussed in the context of criminal\n contempt, the concept informs the rules of law—\n both substantive and procedural—that have been de-\n vised to protect the courts and litigants (and therefore\n the public) from abusive litigation tactics, like shot-\n gun pleadings. If use of an abusive tactic is deliberate\n and actually impedes the orderly litigation of the\n case, to-wit: obstructs justice, the perpetrator could\n be cited for criminal contempt.\n 261 F.3d at 1031–32 (alterations in original).\n The SEC’s lawyers risked being sanctioned under Rule 11(b)\n for ﬁling a complaint woefully insuﬃcient under the Federal Rules\n of Civil Procedure. The risk failed to materialize, though, because\n the District Court looked the other way. Why? The record contains\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 143 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 63\n\n no reason. What it reveals is a Court that attempted to make a silk\n purse out of a sow’s ear.\n The Court could not have sustained the complaint using\n Eleventh Circuit precedent. The Court’s solution, and perhaps its\n most surprising move, was to misrepresent its holding in Terry, as\n noted supra, to strip down Eleventh Circuit precedent on shotgun\n pleadings. By ignoring Rule 8(a)(2), Rule 9(b), Rule 10(b), Supreme\n Court precedent, and Eleventh Circuit precedent, the District\n Court called its impartiality into question.\n The structure of a trial by jury resembles a three-legged\n stool. One leg consists of a jury whose members adhere to an oath.\n Another consists or lawyers who adhere to a high ethical and pro-\n fessional standard as members of the bar and as oﬃcers of the\n court. And the third leg consists of an impartial judge. If one leg\n collapses, justice is denied.\n Section 455(a) of Title 28 of the United States Code focuses\n on the judicial leg of this stool. It states: “Any justice, judge, or mag-\n istrate judge of the United States shall disqualify himself in any pro-\n ceeding in which his impartiality might reasonably be questioned.”\n 28 U.S.C. § 455(a). Would a member of the organized bar engaged\n in civil litigation, a judge of a trial or appellate court handling civil\n litigation, or a citizen familiar with the administration of civil jus-\n tice in the Nation’s courts reasonably question the impartiality of\n the district judge who presided over this case? Given the judge’s ap-\n proval of a thoughtless complaint and ultimate repleading of the\n case for the jury, I argue the answer is yes.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 144 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 64\n\n In Liljeberg v. Health Services Acquisition Corp., the Supreme\n Court held that § 455 can be used as grounds to set aside a ﬁnal\n judgment under Rule 60(b)(6) of the Federal Rules of Civil Proce-\n dure. 32 486 U.S. 847, 868, 108 S. Ct. 2194, 2206 (1988). It noted that\n “[a]lthough § 455 deﬁnes the circumstances that mandate disquali-\n ﬁcation of federal judges, it neither prescribes nor prohibits any\n particular remedy for a violation of that duty. Congress has wisely\n delegated to the judiciary the task of fashioning the remedies that\n will best serve the purpose of the legislation.” Id. at 862, 108 S. Ct.\n at 2204. The Supreme Court provided three factors to weigh when\n determining whether to grant relief: “the risk of injustice to the\n parties in the particular case, the risk that the denial of relief will\n produce injustice in other cases, and the risk of undermining the\n public’s conﬁdence in the judicial process.” Id. at 864, 108 S. Ct. at\n 2205.\n Although Liljeberg was decided on a Rule 60(b) posture, this\n Court has previously contemplated whether § 455(a) could be used\n to reverse a final judgment on direct appeal, and we found that it\n could. See United States v. Kelly, 888 F.2d 732, 747 (11th Cir. 1989).\n We further explained that because Rule 60(b)(6) is typically limited\n to “extraordinary circumstances,” “the standard for reversal on ap-\n peal in cases involving § 455(a) violations may not be as stringent\n\n 32 Rule 60(b) of the Federal Rules of Civil Procedure allows a court to set aside\n\n a final judgment upon the movant’s showing of certain enumerated grounds,\n such as fraud, mistake, or newly discovered evidence. Fed. R. Civ. P. 60(b).\n Subpart (6) of the rule includes a catch-all for “any other reason that justifies\n relief.” Fed. R. Civ. P. 60(b)(6).\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 145 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 65\n\n as the three-part test enunciated in Liljeberg.” Id. at 747 n.27. Here,\n the risk of injustice and the deleterious effect on public confidence\n in the courts could not be more profound. In my view, the most\n appropriate remedy in light of the unobscured record would be to\n vacate the judgment on direct appeal.\n VI. POST-APPEAL PROCEEDINGS\n The Majority has affirmed the District Court’s judgment,\n but it has likely not brought the litigation to a conclusion. Once our\n mandate issues, the defendants may pursue two courses of action.\n The first is to move the District Court pursuant to Rule 60(b)(6) for\n the vacatur of the Count VI judgment on the grounds of demon-\n strated impartiality and bias. The second course of action is to\n move the District Court for sanctions against the SEC.33\n In Pelletier v. Zweifel, we explained that:\n [T]hree types of conduct warrant the imposition\n of Rule 11 sanctions: (1) when a party files a pleading\n that has no reasonable factual basis; (2) when the\n party files a pleading that is based on a legal theory\n\n\n\n 33 In Cooter & Gell v. Hartmarx Corp., the Supreme Court held that a district\n\n court could allot Rule 11 sanctions after the plaintiff voluntarily dismissed the\n action. 496 U.S. 384, 395, 110 S. Ct. 2447, 2455 (1990). The Court explained\n that “a federal court may consider collateral issues after an action is no longer\n pending” and that Rule 11 “requires the determination of a collateral issue:\n whether the attorney has abused the judicial process . . . . Such a determination\n may be made after the principal suit has been terminated.” Id. at 395–96, 110\n S. Ct. at 2455–56.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 146 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 66\n\n that has no reasonable chance of success and that can-\n not be advanced as a reasonable argument to change\n existing law; and (3) when the party files a pleading in\n bad faith for an improper purpose.\n 921 F.2d at 1514.\n Of interest here is the third type of conduct, which is sourced\n in Federal Rule of Civil Procedure 11(b)(1). When the SEC filed its\n complaint, it certified that the complaint was “not being presented\n for any improper purpose, such as to harass, cause unnecessary de-\n lay, or needlessly increase the cost of litigation.” Fed. R. Civ. P.\n 11(b)(1). This rule effectively codifies the common law tort of\n abuse of process, which occurs when “[o]ne . . . uses a legal process,\n whether criminal or civil, against another primarily to accomplish\n a purpose for which it is not designed.” Restatement (Second) of\n Torts § 682 (A.L.I. 1977). “The gravamen of the misconduct” the\n tort concerns itself with “is not the wrongful procurement of legal\n process or the wrongful initiation of criminal or civil proceedings”\n but rather “the misuse of process, no matter how properly ob-\n tained.” Id. § 682 cmt. a. The record in this case contains prima facie\n evidence that the SEC’s lawyers brought the instant lawsuit be-\n cause the SEC wanted to harass the defendants and put them out\n of business.\n The SEC knew that its 300-plus causes of action were both\n unmanageable and unsupported by the facts. Evidently, the jury,\n too, was skeptical, finding the defendants not liable on thirteen of\n the fourteen counts. Further evidence that the SEC’s goal was to\n harass the defendants can be found in its complaint. There, the SEC\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 147 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 67\n\n sought as its principal remedy a “[p]ermanent [i]njunction restrain-\n ing and enjoining Defendants, their officers, agents, servants, em-\n ployees, attorneys, and all persons in active concert or participation\n with them, and each of them, from violating the federal securities\n laws alleged in this [c]omplaint.” 34 In other words, the SEC sought\n an injunction ordering the defendants (and the others) to obey the\n law.\n An “obey-the-law” injunction is noxious yet refreshingly\n self-descriptive—it is an injunction that orders a defendant to obey\n the law, rather than to abide by or refrain from a precise and ascer-\n tainable mode of conduct. They have long been disallowed in the\n Eleventh Circuit. In fact, over twenty-five years ago, we wrote:\n “This Circuit has held repeatedly that ‘obey the law’ injunctions are\n unenforceable.” Fla. Ass’n of Rehab. Facilities, Inc. v. State of Fla. Dep’t\n of Health & Rehab. Servs., 225 F.3d 1208, 1222 (11th Cir. 2000). The\n SEC knew this when it requested relief because we have, on several\n occasions, repudiated injunctions granted to the SEC specifically. In\n SEC v. Goble, we vacated the SEC’s injunction and chided the SEC\n for its “[g]laringly absent” discussion of why the injunction com-\n plied with federal law. 682 F.3d 934, 950–951 (11th Cir. 2012). And\n\n\n\n\n 34 Enjoining the defendants’ “officers, agents, servants, employees, attorneys,\n\n and all persons in active concert or participation with them” would be to en-\n join non-parties. As non-parties they would not be subject to the District\n Court’s civil contempt power.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 148 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 68\n\n in SEC v. Smyth, we explained that the SEC’s injunction was unen-\n forceable because it was a “quintessential ‘obey-the-law’ injunc-\n tion.”420 F.3d 1225, 1233 n.14 (11th Cir. 2005).\n Obey-the-law injunctions present numerous issues, includ-\n ing vagueness, due process concerns, and a lack of enforceability.\n Moreover, because injunctions are enforced through civil and\n criminal contempt proceedings, obey-the-law injunctions run the\n risk of circumventing a defendant’s Sixth and Seventh Amendment\n rights to a trial by jury.\n To illustrate, imagine that the District Court granted the\n SEC’s requested relief, and that the SEC subsequently found that\n Dilley “violat[ed] the federal securities laws.” On the SEC’s initia-\n tive, the Court could order Dilley to show cause that he did not\n violate the injunction. If he could not prove this to the satisfaction\n of the Court, Dilley would be found in civil contempt and delivered\n to the custody of the Attorney General. Ordinarily, a civil contem-\n nor has a key to the jail; he can get out when he performs the act\n enjoined. But here, Dilley was not enjoined to perform or not per-\n form a specific act. He was simply ordered not to violate the law;\n something he cannot undo. The Court has issued an injunction it\n is powerless to enforce via its civil contempt power because the\n contemnor, Dilley, would have no means of purging his contempt.\n In sum, the SEC filed a complaint replete with ambiguity in\n violation of the Federal Rules of Civil Procedure and binding prec-\n edent. It knowingly requested an illegal form of relief and con-\n ducted the litigation with no regard for the defendants’ due process\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 149 of 211\n\n\n\n\n 22-13129 TJOFLAT, J., Dissenting 69\n\n rights. It presented fourteen convoluted counts to the jury, secured\n a verdict on Count VI, and successfully obtained sweeping reme-\n dies. In fewer words, the SEC abused the process.\n CONCLUSION\n For the foregoing reasons, I dissent.\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 150 of 211\n\n\n\n\n UNITED STATES DISTRICT COURT\n FOR THE MIDDLE DISTRICT OF FLORIDA\n\n CASE NO. ____________________\n\n SECURITIES AND EXCHANGE COMMISSION, )\n )\n Plaintiff, )\n )\n v. )\n )\n SPARTAN SECURITIES GROUP, LTD., )\n ISLAND CAPITAL MANAGEMENT LLC, )\n CARL E. DILLEY, )\n MICAH J. ELDRED, and )\n DAVID D. LOPEZ, )\n )\n Defendants. )\n _______________________________________________ )\n\n COMPLAINT FOR INJUNCTIVE AND OTHER RELIEF\n\n Plaintiff Securities and Exchange Commission (“Plaintiff” or the “Commission”)\n\n alleges:\n\n I. INTRODUCTION\n\n 1. The Commission brings this action to enjoin Defendants Spartan Securities\n\n Group, Ltd. (“Spartan Securities”), Island Capital Management LLC, d/b/a Island Stock\n\n Transfer (“Island Stock Transfer”), Carl E. Dilley (“Dilley”), Micah J. Eldred (“Eldred”), and\n\n David D. Lopez (“Lopez”) (collectively, “Defendants”) from violating the provisions of the\n\n federal securities laws described herein.\n\n 2. Spartan Securities, a registered broker-dealer, and Island Stock Transfer, a\n\n registered transfer agent, are commonly owned and tout their “one-stop shop” services provided\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 151 of 211\n\n\n\n\n in tandem to issuers of microcap securities. At material times to this Complaint, Dilley, Eldred,\n\n and Lopez were common owners of the parent of both Spartan Securities and Island Stock\n\n Transfer, and principals of both Spartan Securities and Island Stock Transfer.\n\n 3. This action involves Defendants’ roles in one or two separate fraudulent\n\n schemes from approximately December 2009 through August 2014 to manufacture at least 19\n\n public companies for sale fundamentally premised on a deceptive public float of purportedly\n\n “free-trading” securities: 14 by Alvin Mirman and Sheldon Rose (the “Mirman/Rose\n\n Companies,” identified in paragraph 30 below) and five by Michael Daniels, Andy Fan, and\n\n Diane Harrison (the “Daniels Companies,” identified in paragraph 102 below).\n\n 4. The fraudulent schemes depended on misrepresentations and omissions to,\n\n among others, the Commission, the Financial Industry Regulatory Authority (“FINRA”), and\n\n the Depository Trust Company (“DTC”) that the Mirman/Rose and Daniels Companies were\n\n legitimate small businesses with independent management and shareholders. In reality, both\n\n the management and shareholders were nothing more than nominees for control persons who\n\n always intended merely to sell all the securities of the companies privately in bulk for their\n\n own benefit. The essential value of these securities (each bulk sale realized proceeds of\n\n hundreds of thousands of dollars) was their false designation as “free-trading” with the ability\n\n to be sold immediately on the public market. If the truth had been known to the public, the\n\n securities would have been restricted from such sales and would have had little value.\n\n 5. Dilley and Eldred knew or were reckless in not knowing from the onset that the\n\n Mirman/Rose Companies and Daniels Companies, respectively, were pursuing their stated\n\n plans under false pretenses and instead being packaged for sale as public vehicles, and that the\n\n 2\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 152 of 211\n\n\n\n\n shareholders were mere nominees for the control persons. Nonetheless, Defendants took\n\n critical steps to advance the frauds.\n\n 6. Dilley schemed with Mirman and Rose, and Eldred schemed with Daniels, Fan\n\n and Harrison, to defraud the public that the Mirman/Rose Companies and Daniels Companies\n\n were operating businesses with independent management and shareholders, rather than\n\n undisclosed “blank check” companies (sometimes referred to as “shells” or “vehicles”) for\n\n sale. In furtherance of the Mirman/Rose scheme, Dilley signed false Form 211 applications\n\n submitted to FINRA, contributed to false DTC applications, found potential shell buyers,\n\n signed an escrow agreement and false attestation letters for shell buyers, and effectuated the\n\n bulk transfer of the entire deceptive public float of Mirman/Rose Companies to shell buyers.\n\n Eldred similarly schemed with Daniels, Fan and Harrison by filing false Forms 211 with\n\n FINRA, signing false securities deposit forms and executing trades in Spartan Securities’\n\n proprietary account, all in support of the manufacture of undisclosed public vehicles – one of\n\n which Eldred expressly proposed to acquire himself while its Form 211 was pending.\n\n 7. A necessary step in both fraudulent schemes was for the issuer’s stock to be\n\n eligible for public quotation, which requires a broker-dealer to file a Form 211 application with\n\n FINRA to demonstrate compliance with Rule 15c2-11 under the Securities Exchange Act of\n\n 1934 (“Exchange Act”). FINRA typically raises specific concerns or seeks further information\n\n from the broker-dealer in one or more deficiency letters before clearing the application.\n\n Meanwhile, transfer agents perform a number of roles for issuers pertaining to their securities\n\n and shareholders, including recording changes of ownership, maintaining the issuer's security\n\n\n\n\n 3\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 153 of 211\n\n\n\n\n holder records, canceling and issuing certificates, and resolving problems arising from lost,\n\n destroyed or stolen certificates.\n\n 8. Spartan Securities and Island Stock Transfer acted in tandem to provide these\n\n various services which were critical to the Mirman/Rose and Daniels/Fan/Harrison shell\n\n factories. For example, Spartan Securities filed the Form 211 application with FINRA in order\n\n for the securities of these 19 issuers to be publicly quoted. Spartan Securities, Dilley, and\n\n Eldred made materially false statements and omissions to FINRA regarding the purpose,\n\n management and shareholders of the Mirman/Rose Companies and Daniels Companies.\n\n Spartan Securities and its principals also had information that undermined any reasonable basis\n\n that the information required by Rule 15c2-11 was materially accurate and from a reliable\n\n source. Spartan Securities then initiated unpriced quotations for all the Mirman/Rose\n\n Companies and Daniels Companies (except PurpleReal) upon FINRA’s clearance of the Form\n\n 211.\n\n 9. Lopez was a Spartan Securities principal who, with Dilley and Eldred’s\n\n knowledge, personally undertook responsibility for much of the Form 211 process on at least\n\n four Mirman/Rose Companies. In addition, Lopez was Spartan Securities’ Chief Compliance\n\n Officer and the principal responsible for effectuating its extensive written policies and\n\n procedures applicable to Form 211 applications. Nonetheless, Lopez knowingly or recklessly\n\n ignored those procedures and the other requirements inherent in Rule 15c2-11, including\n\n failing to conduct any investigation or inquiry into red flags raised by FINRA in the deficiency\n\n letters and other adverse information in Spartan Securities’ possession, or even to familiarize\n\n himself with the issuers. As a result, Lopez was a substantial factor in Spartan Securities’\n\n 4\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 154 of 211\n\n\n\n\n failure to have a reasonable basis for believing that required information about those four\n\n Mirman/Rose Companies was accurate and from a reliable source.\n\n 10. After obtaining Form 211 clearance for the Mirman/Rose Companies, Spartan\n\n Securities and Island Stock Transfer then initiated and provided false information for\n\n applications filed with DTC through which the securities became eligible for electronic\n\n clearance. Island Stock Transfer also effectuated both the bulk issuance and transfer of the\n\n Mirman/Rose Company securities without restriction despite Dilley’s knowing (or recklessly\n\n not knowing) and numerous red flags that the securities were in the hands of affiliates and\n\n therefore restricted, while Spartan Securities effectuated the unlawful deposit and open-market\n\n sales of some Daniels Company shares by signing false deposit requests and entering pre-\n\n arranged trades through a proprietary account.\n\n 11. As a result of the conduct alleged in this Complaint:\n\n (a) Defendant Spartan Securities violated Sections 5(a), 5(c), 17(a)(1) and\n\n 17(a)(3) of the Securities Act of 1933 (“Securities Act”), 15 U.S.C. §§ 77e(a), 77e(c),\n\n 77q(a)(1), 77q(a)(3), and Sections 10(b) and 15(c)(2) and Rules 10b-5 and 15c2-11 of the\n\n Exchange Act, 15 U.S.C. §§ 78j(b), 78o(c)(2) and 17 C.F.R. §§ 240.10b-5, 240.15c2-11; and\n\n aided and abetted violations of Section 17(a) of the Securities Act, 15 U.S.C. § 77e(a), and\n\n Section 10(b) and Rule 10b-5 of the Exchange Act, 15 U.S.C. § 78j(b) and 17 C.F.R.\n\n § 240.10b-5;\n\n (b) Defendant Island Stock Transfer violated Sections 5(a), 5(c), 17(a)(1)\n\n and 17(a)(3) of the Securities Act, 15 U.S.C. §§ 77e(a), 77e(c), 77q(a)(1), 77q(a)(3), and\n\n Section 10(b) and Rule 10b-5 of the Exchange Act, 15 U.S.C. § 78j(b) and 17 C.F.R.\n\n 5\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 155 of 211\n\n\n\n\n § 240.10b-5; and aided and abetted violations of Section 17(a) of the Securities Act, 15 U.S.C.\n\n § 77e(a), and Section 10(b) and Rule 10b-5 of the Exchange Act, 15 U.S.C. § 78j(b) and\n\n 17 C.F.R. § 240.10b-5;\n\n (c) Defendant Dilley violated Sections 5(a), 5(c), 17(a)(1) and 17(a)(3) of\n\n the Securities Act, 15 U.S.C. §§ 77e(a), 77e(c), 77q(a)(1), 77q(a)(3), and Section 10(b) and\n\n Rule 10b-5 of the Exchange Act, 15 U.S.C. § 78j(b), and 17 C.F.R. § 240.10b-5; and aided and\n\n abetted violations of Section 17(a) of the Securities Act, 15 U.S.C. § 77e(a), and Sections 10(b)\n\n and 15(c)(2) and Rules 10b-5 and 15c2-11 of the Exchange Act, 15 U.S.C. §§ 78j(b), 78o(c)(2),\n\n and 17 C.F.R. §§ 240.10b-5, 240.15c2-11;\n\n (d) Defendant Eldred violated Sections 17(a)(1) and 17(a)(3) of the\n\n Securities Act, 15 U.S.C. §§ 77q(a)(1), 77q(a)(3), and Section 10(b) and Rule 10b-5 of the\n\n Exchange Act, 15 U.S.C. § 78j(b), and 17 C.F.R. § 240.10b-5; and aided and abetted violations\n\n of Section 17(a) of the Securities Act, 15 U.S.C. § 77e(a), and Sections 10(b) and 15(c)(2) and\n\n Rules 10b-5 and 15c2-11 of the Exchange Act, 15 U.S.C. §§ 78j(b), 78o(c)(2), and 17 C.F.R.\n\n §§ 240.10b-5, 240.15c2-11;\n\n (e) Defendant Lopez aided and abetted violations of Section 15(c)(2) and\n\n Rule 15c2-11 of the Exchange Act, 15 U.S.C. § 78o(c)(2) and 17 C.F.R. § 240.15c2-11; and\n\n (f) Unless enjoined, Defendants are reasonably likely to continue to violate\n\n the federal securities laws.\n\n 12. The Commission therefore respectfully requests the Court enter an order:\n\n (i) permanently enjoining Defendants from violating the federal securities laws; (ii) directing\n\n Island Stock Transfer to pay disgorgement with prejudgment interest; (iii) directing Defendants\n\n\n 6\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 156 of 211\n\n\n\n\n to pay civil money penalties; and (iv) imposing penny stock bars against Spartan Securities,\n\n Dilley, Eldred and Lopez.\n\n II. DEFENDANTS AND OTHER RELEVANT PERSONS\n\n A. DEFENDANTS\n\n 13. Spartan Securities has been registered with the Commission as a broker-dealer\n\n since 2001, with its principal place of business in Clearwater, Florida. Spartan Securities is a\n\n Florida limited partnership wholly owned by Connect X Capital Markets LLC (“Connect X”),\n\n whose managing member is Eldred and shareholders have included Dilley, Eldred and Lopez.\n\n Between 2009 and 2018, Spartan Securities has been the subject of at least 10 disciplinary\n\n actions by FINRA or the NASDAQ Stock Market.\n\n 14. Island Stock Transfer has been registered with the Commission as a transfer\n\n agent since 2003, with its principal place of business in Clearwater, Florida. Island Stock\n\n Transfer is a Florida limited liability company wholly owned by Connect X that shares office\n\n space, computer systems, officers and employees with Spartan Securities.\n\n 15. Dilley, a resident of Seminole, Florida, was a registered principal and\n\n representative of Spartan Securities from 2004 to 2015. Dilley was also the President of Island\n\n Stock Transfer from 2004 until January 2018. Dilley is presently the Vice President of another\n\n registered transfer agent owned by Connect X and of which Eldred and Lopez are also officers.\n\n 16. Eldred, a resident of Seminole, Florida, has been a registered principal and\n\n representative of Spartan Securities and the Chief Executive Officer of Island Stock Transfer\n\n from 2001 to the present.\n\n\n\n\n 7\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 157 of 211\n\n\n\n\n 17. Lopez, a resident of St. Petersburg, Florida, has been a registered principal and\n\n Chief Compliance Officer of Spartan Securities from March 2001 to the present and the Chief\n\n Compliance Officer of Island Stock Transfer from August 2006 to the present.\n\n B. OTHER RELEVANT PERSONS\n\n 18. Alvin Mirman, of Sarasota, Florida, was the undisclosed control person of\n\n Changing Technologies, Inc. (“Changing Technologies”) and an undisclosed control person,\n\n along with Rose, of On the Move Systems Corp. (“On the Move”), Rainbow Coral Corp.\n\n (“Rainbow Coral”), First Titan Corp. (“First Titan”), Neutra Corp. (“Neutra”), Aristocrat\n\n Group Corp. (“Aristocrat”), First Social Networx Corp. (“First Social”), Global Group\n\n Enterprises Corp. (“Global Group”), E-Waste Corp. (“E-Waste”) and First Independence Corp.\n\n (“First Independence”). Mirman was a defendant in SEC v. McKelvey et al., Case No. 15-cv-\n\n 80496 (S.D. Fla. 2015), in which the Court entered, by consent, a judgment of permanent\n\n injunction, officer and director bar and penny stock bar against Mirman. On August 19, 2016,\n\n Mirman pled guilty to a one-count Information charging him with conspiracy to commit\n\n securities fraud. U.S. v. Mirman et al., Case No. 16-cr-20572 (S.D. Fla.). Both the\n\n Commission and criminal actions included his misconduct in connection with the\n\n Mirman/Rose Companies. In 2007, without admitting or denying wrongdoing, Mirman\n\n consented to being barred by FINRA from association with any FINRA member.\n\n 19. Sheldon Rose, of Sarasota, Florida, was the undisclosed control person of Kids\n\n Germ Defense Corp. (“Kids Germ”), Obscene Jeans Corp. (“Obscene Jeans”), Envoy Group\n\n Corp. (“Envoy”) and First Xeris Corp. (“First Xeris”) and an undisclosed control person, along\n\n with Mirman, of On the Move, Rainbow Coral, First Titan, Neutra, Aristocrat, First Social,\n\n 8\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 158 of 211\n\n\n\n\n Global Group, E-Waste and First Independence. The Commission entered, by consent, a\n\n cease-and-desist order, officer and director bar and penny stock bar against Rose. In re Sheldon\n\n Rose et al., Exch. Act Rel. No. 78894 (Sept. 21, 2016). The Commission later ordered Rose\n\n to pay disgorgement and prejudgment interest in the amount of $2,973,916.18. In re Sheldon\n\n Rose, Exch. Act Rel. No. 80301 (Mar. 23, 2017). On November 9, 2016, Rose pled guilty to\n\n a one-count Information charging him with conspiracy to commit securities fraud. U.S. v.\n\n Kass et al., Case No. 16-cr-20706 (S.D. Fla.). Both the Commission and criminal actions\n\n included his misconduct in connection with the Mirman/Rose Companies.\n\n 20. Michael Daniels, of Palmetto, Florida, was the undisclosed control person of\n\n Dinello Restaurant Ventures, Inc., n/k/a AF Ocean Investment Management Co. (“Dinello/AF\n\n Ocean”), President, Chief Executive Officer, Chief Financial Officer, Treasurer and Chairman\n\n of the Board of Court Document Services, Inc., n/k/a ChinAmerica Andy Movie Entertainment\n\n Media Co. (“Court/ChinAmerica”), Principal Executive Officer, Secretary, Treasurer,\n\n Chairman of the Board and Chief Financial Officer of Quality Wallbeds, Inc., n/k/a Sichuan\n\n Leaders Petrochemical Co. (“Wallbeds/Sichuan”), Secretary, Chief Financial Officer,\n\n Treasurer, Director, and Chairman of the Board of Top to Bottom Pressure Washing, Inc., n/k/a\n\n Ibex Advanced Mortgage Technology Co. (“TTB/Ibex”), and undisclosed control person of\n\n PurpleReal.com Corp. (“PurpleReal”). On April 25, 2018, the Commission filed a Complaint\n\n against Daniels related to his conduct in connection with the Daniels Companies. SEC v.\n\n Harrison, et al., No. 8:18-cv-01003 (M.D. Fla.).\n\n 21. Diane Harrison, of Palmetto, Florida, was the Chief Financial Officer,\n\n Secretary, Treasurer and Director of Dinello/AF Ocean, Treasurer, Principal Accounting\n\n 9\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 159 of 211\n\n\n\n\n Officer and Director of Wallbeds/Sichuan, Director and Secretary of TTB/Ibex, and President,\n\n Director, and Chairman of the Board of PurpleReal. Harrison, an attorney, is the owner of the\n\n law firm Harrison Law, PA, which is based in Florida. Harrison, who is Daniels’ wife, is a\n\n defendant in the SEC v. Harrison case based on her conduct with respect to the Mirman/Rose\n\n Companies and the Daniels Companies.\n\n 22. Andy Fan, of Las Vegas, Nevada, was the President, Treasurer, Chief\n\n Executive Officer, Chief Financial Officer and Director of Dinello/AF Ocean and\n\n Court/ChinAmerica, and was the President and Director of Wallbeds/Sichuan and TTB/Ibex.\n\n The Commission entered, by consent, a cease-and-desist order, officer and director bar and\n\n penny stock bar against Fan, and ordered him to pay a civil money penalty of $140,000. In re\n\n Andy Z. Fan, Securities Act Rel. No. 10487 (Apr. 25, 2018). The Commission’s action related\n\n to Fan’s conduct with respect to certain of the Daniels Companies.\n\n III. JURISDICTION AND VENUE\n\n 23. The Court has jurisdiction over this action pursuant to Sections 20(b), 20(d)(1)\n\n and 22(a) of the Securities Act, 15 U.S.C. §§ 77t(b), 77t(d)(1) and 77v(a); and Sections 21(d),\n\n 21(e) and 27(a) of the Exchange Act, 15 U.S.C. §§ 78u(d), 78u(e) and 78aa(a).\n\n 24. The Court has personal jurisdiction over Defendants and venue is proper in this\n\n District because, among other things, some or all of the Defendants reside or transact business\n\n in this District and/or participated in the offer, purchase, or sale of securities in this District,\n\n and many of the acts and transactions constituting the violations alleged in this Complaint\n\n occurred in this District. In addition, venue is proper in this District under 28 U.S.C. § 1391\n\n because a substantial part of the events giving rise to the Commission’s claims occurred here.\n\n 10\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 160 of 211\n\n\n\n\n 25. In connection with the conduct alleged in this Complaint, Defendants, directly\n\n and indirectly, singly or in concert with others, have made use of the means or instrumentalities\n\n of interstate commerce, the means or instruments of transportation or communication in\n\n interstate commerce, and of the mails.\n\n IV. FACTUAL ALLEGATIONS\n\n A. The Mirman/Rose Shell Factory\n\n 26. Mirman and Rose, alone or together, manufactured at least 14 undisclosed\n\n “blank check” companies in assembly-line fashion in order to sell in bulk the entire deceptive\n\n float of purportedly unrestricted securities.\n\n 27. Mirman and Rose manufactured each Mirman/Rose Company in a similar\n\n fashion. Mirman and Rose recruited a sole officer, director, employee, and majority\n\n shareholder (the “sole officer”) to act in name only. Mirman and Rose prepared and filed false\n\n and misleading registration statements with the Commission (the “Forms S-1”)\n\n misrepresenting that the sole officer was pursuing a specific business plan (versus Mirman and\n\n Rose controlling mere shells to sell all the securities in bulk) and would be solely responsible\n\n to solicit investors for the company (versus Mirman and Rose using similar rosters of friends\n\n and family to “invest” in name only).\n\n 28. After the Form S-1 became effective, Mirman and Rose solicited the same or\n\n virtually the same number of friends and family as shareholders while maintaining complete\n\n control through stock certificates with blank stock powers, which are signed by the named\n\n shareholder and entitle whoever holds the stock certificate to sell or transfer it.\n\n\n\n\n 11\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 161 of 211\n\n\n\n\n 29. Mirman and Rose directed Spartan Securities and Island Stock Transfer to\n\n prepare applications with FINRA and DTC that contained materially false and inaccurate\n\n information in order to make the Mirman/Rose Companies marketable as public vehicles.\n\n Specifically, Mirman and Rose needed the purportedly public float of securities available for\n\n immediate public quotation and sale through DTC electronic clearance. Mirman and Rose\n\n then effectuated the bulk sale of the shares of the issuer for a single cash price by delivering\n\n all the stock certificates with blank stock powers to a single buyer group. Mirman and Rose\n\n split the net proceeds after paying a nominal amount to their straw sole officer and\n\n shareholders.\n\n 30. Mirman and Rose, alone or together, created and developed the following\n\n Mirman/Rose Companies:\n\n Mirman/Rose Control Effective Date of Time Between Form S-1\n Company Person(s) Date of Form Change of and Change of Control\n S-1 Control\n Kids Germ Rose 12/2009 2/2010 3 months\n\n Obscene Jeans Rose 8/2010 12/2010 4 months\n\n On the Move Mirman/Rose 12/2010 6/2011 6 months\n\n Rainbow Coral Mirman/Rose 1/2011 10/2011 9 months\n\n First Titan Mirman/Rose 2/2011 9/2011 7 months\n\n Neutra Mirman/Rose 4/2011 11/2011 7 months\n\n Aristocrat Mirman/Rose 11/2011 7/2012 8 months\n\n First Social Mirman/Rose 3/2012 2/2013 11 months\n\n Global Group Mirman/Rose 3/2012 4/2013 13 months\n\n E-Waste Corp. Mirman/Rose 6/2012 4/2013 10 months\n\n\n\n 12\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 162 of 211\n\n\n\n\n Mirman/Rose Control Effective Date of Time Between Form S-1\n Company Person(s) Date of Form Change of and Change of Control\n S-1 Control\n First Mirman/Rose 8/2012 5/2013 9 months\n Independence\n\n Envoy Group Rose 9/2013 4/2014 7 months\n\n Changing Mirman 10/2013 6/2014 8 months\n Technologies\n\n First Xeris Rose 1/2014 N/A N/A\n\n\n 31. Mirman and Rose never intended to take any step to advance the purported\n\n business plan stated in the Form S-1. Rather, as evidenced in part by the short amount of time\n\n between Form S-1 effectiveness and the change of control, Mirman and Rose solely sought to\n\n manufacture a public vehicle in assembly-line fashion, and sell all its securities in bulk once\n\n obtaining the necessary clearances from the Commission, FINRA, and DTC.\n\n 32. Mirman and Rose retained Spartan Securities and Island Stock Transfer for a\n\n number of critical steps to develop the Mirman/Rose Companies in quick succession from\n\n Form S-1 effectiveness to public vehicles with securities eligible for public quotation and\n\n electronic clearance.\n\n 33. Mirman and Rose routinely contacted Dilley to simultaneously start broker\n\n services through Spartan Securities and transfer agent services through Island Stock Transfer.\n\n Mirman or Rose emailed Dilley stating that the issuer’s Form S-1 recently had gone effective\n\n and “[w]e want to start a 15c211” and have Island Stock Transfer act as transfer agent. Dilley\n\n instructed Spartan Securities and Island Stock Transfer employees to send the materials for,\n\n respectively, the Form 211 application and transfer agent services to Mirman or Rose.\n\n\n\n 13\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 163 of 211\n\n\n\n\n 34. Spartan Securities and Island Stock Transfer, which share office space,\n\n computer systems, officers and employees, acted in tandem for the Mirman/Rose Companies.\n\n For example, Island Stock Transfer prepared certified shareholder lists at the request and upon\n\n the approval of Mirman and Rose. Spartan Securities then submitted those shareholder lists to\n\n FINRA as part of the Form 211 applications.\n\n 35. Spartan Securities and Island Stock Transfer’s actions allowed Mirman and\n\n Rose to sell the Mirman/Rose Companies via the bulk sale of all the issued securities to a small\n\n buyer group generating combined proceeds totaling at least $3.7 million:\n\n\n Mirman/Rose Spartan Island Stock FINRA DTC Island Stock Transfer\n Company Securities Transfer Form 211 Filing Bulk Transfer To\n Form 211 Original Clearance Buyer Group\n Signatory Issuance\n Kids Germ Dilley 12/2009 1/2010 1/2010 2/2010\n Obscene Dilley 8/2010 9/2010 10/2010 12/2010\n Jeans\n On The Move Dilley 1/2011 2/2011 4/2011 6/2011\n Rainbow Dilley 2/2011 3/2011 7/2011 10/2011\n Coral\n First Titan Dilley 4/2011 5/2011 7/2011 9/2011\n Neutra Dilley 6/2011 7/2011 8/2011 11/2011\n Aristocrat Dilley 12/2011 12/2011 2/2012 7/2012\n Group\n First Social Dilley 3/2012 4/2012 7/2012 2/2013\n Networx\n Global Group Dilley 4/2012 5/2012 8/2012 4/2013\n E-Waste Dilley 7/2012 8/2012 9/2012 4/2013\n First Dilley 2/2013 3/2013 4/2013 5/2013\n Independence\n Envoy Group Dilley N/A 12/2013 N/A N/A\n Changing Dilley 11/2013 1/2014 4/2014 6/2014\n Technologies\n First Xeris Dilley 1/2014 3/2014 4/2014 N/A (SEC stop order)\n\n\n\n\n 14\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 164 of 211\n\n\n\n\n Dilley’s Knowledge of/Participation in the Mirman/Rose Fraud\n\n 36. Dilley, a registered principal of Spartan Securities and Island Stock Transfer,\n\n knew or was reckless in not knowing that Mirman and Rose were manufacturing the\n\n Mirman/Rose Companies to control and sell a deceptive float of purportedly unrestricted\n\n securities (versus the material misrepresentations in the Forms 211 and Commission filings\n\n that the issuers were legitimate startups controlled by the nominee sole officer with an\n\n independent shareholder base).\n\n 37. Dilley knew or was reckless in not knowing of Mirman and Rose’s undisclosed\n\n control of and intent for the Mirman/Rose Companies with the earliest issuer, Kids Germ. Rose\n\n solicited Dilley to have Spartan Securities file the Kids Germ Form 211. On January 4, 2010\n\n – the same day FINRA cleared the Form 211 – Rose emailed Dilley: “What do you recommend\n\n [Kids Germ] do with the DTC, know[ing] the route it is taking? Do you want to speak to the\n\n attorney interested in the company, or do you want me to call him? If you want me to call him,\n\n please forward telephone number.” By email that same day, Dilley responded: “We should\n\n apply for DTC eligibility. Let me call you on this once I talk to [the attorney].”\n\n 38. On January 13, 2010, Island Stock Transfer initiated the DTC application for\n\n Kids Germ misrepresenting “the company is not a shell” despite Dilley knowing or recklessly\n\n not knowing it was a shell because of, among other things, its lack of assets or revenues and\n\n knowing “the route it is taking.” One month later, Island Stock Transfer transferred the Kids\n\n Germ shares from Rose’s friends and family in bulk without a restrictive legend stamped on\n\n the certificate to indicate that the shares are restricted from transfer or sale. Dilley knew or\n\n was reckless in not knowing that these shareholders were affiliates of Kids Germ because of\n\n 15\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 165 of 211\n\n\n\n\n Rose’s control over all their shares to effectuate a bulk sale of Kids Germ and therefore, the\n\n shares should have been restricted from transfer or sale.\n\n 39. For the second Mirman/Rose Company, Obscene Jeans, Dilley signed the Form\n\n 211. On September 3, 2010 (the day FINRA cleared the Form 211), at Rose’s request, Dilley\n\n contacted a DTC participant firm to file a DTC application for Obscene Jeans. By email dated\n\n October 4, 2010, Dilley’s assistant forwarded to Rose (copying Dilley) the DTC participant\n\n firm’s refusal to file the application because it was “looking to sponsor operating companies.\n\n We understand that having a shell DTC eligible raises its price but we are just not interested in\n\n the risk that the company falls into the wrong people’s hands.” The following week, despite\n\n this admonition, Dilley’s assistant asked the firm to reconsider filing the application. The firm\n\n agreed, and Spartan Securities re-initiated the DTC application at the behest of Dilley.\n\n 40. In the meantime, by email dated October 5, 2010, Rose sent Dilley a term sheet\n\n for the sale of Obscene Jeans making no mention of the sole officer or purported business plan\n\n and focusing largely on the share structure and tradeability status (for example, the shares were\n\n quoted with one market maker, which was Spartan Securities). The term sheet also listed that\n\n Obscene Jeans had no liabilities and only $20,000 in assets (all cash).\n\n 41. On October 22, 2010, a buyer emailed Dilley (copying Rose) that “we are\n\n closing on [Obscene Jeans] – can you post a bid-ask today?” The following day, Dilley\n\n emailed Rose: “I have to have someone open an account and deposit shares and offer some for\n\n sale. . . . I have never seen this to be a requirement from anyone wanting a shell.”\n\n 42. On October 25, 2010, Rose emailed Dilley: “I told our mutual friend ???? today\n\n to F off, respectfully. Thanks for your effort.”\n\n 16\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 166 of 211\n\n\n\n\n 43. These various documents and events involving Dilley in September and\n\n October 2010 were clear signs that Obscene Jeans was a blank check company and Rose\n\n controlled all shares of Obscene Jeans for sale in bulk.\n\n 44. One month later, Rose asked Dilley for Island Stock Transfer to act as escrow\n\n agent for the sale of Obscene Jeans. At Rose’s request, Dilley signed an escrow agreement on\n\n behalf of Island Stock Transfer by which all of the shares of Obscene Jeans (both the control\n\n block and all purportedly unrestricted shares in the names of the 24 nominee shareholders)\n\n were being sold pursuant to one stock purchase agreement for $440,000. All of these\n\n documents and communications received by Dilley were clear signs that Obscene Jeans was a\n\n blank check company and Rose controlled all shares of Obscene Jeans for sale in bulk.\n\n 45. Dilley communicated exclusively with Mirman and Rose, and was aware that\n\n they directed the finances across the Mirman/Rose Companies. For example, by email dated\n\n September 19, 2011, Mirman told an Island Stock Transfer employee: “We spoke to Carl\n\n [Dilley] and told him we will pay [the Rainbow Coral invoice] through the Neutra account,”\n\n despite Rainbow Coral and Neutra purportedly being unrelated companies with separate\n\n management. Dilley told that same employee (copying Mirman): “We went through what was\n\n supposed to happen with this.” The following month (and on the same day) Dilley signed the\n\n stock certificates by which all the shares of both Rainbow Coral and Neutra were sold to the\n\n same buyers represented by the same counsel, demonstrating Dilley knew or was reckless in\n\n not knowing that Mirman and Rose controlled all shares of both issuers.\n\n 46. Dilley knew or was reckless in not knowing that Mirman and Rose similarly\n\n manufactured E-Waste and Global Group for sale. By email dated December 4, 2012, Mirman\n\n 17\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 167 of 211\n\n\n\n\n wrote Dilley: “We [Mirman and Rose] are in the process of selling E-Waste and the attorney\n\n wants,” among other things, “[c]onfirmation from the T[ransfer] A[gent] that it has not put\n\n restrictions on any free trading shares.” Dilley responded “will do,” and instructed Island\n\n Stock Transfer’s Director of Operations to prepare the letter. Dilley signed the requested letter,\n\n and was copied on the transmittal of the letter exclusively to Mirman. The Director of\n\n Operations soon thereafter signed the stock certificates transferring all of E-Waste’s issued\n\n shares per the buyer’s counsel’s instructions.\n\n 47. By email dated January 1, 2013, Rose wrote Dilley: “Please send [the] same\n\n letter [as E-Waste] but for Global [Group] and e-mail to me ASAP.” Dilley signed that\n\n requested letter as well at Rose’s request.\n\n 48. On January 16, 2013, the buyer’s counsel for E-Waste sent an instruction letter\n\n to Island Stock Transfer enclosing a stock purchase agreement expressly stating that “all of the\n\n free trading shares of the Company consisting of an aggregate of 3,000,000 shares” were\n\n simultaneously being purchased pursuant to stock purchase agreements “of like tenor” with\n\n Rose as “Seller’s Representative,” evidencing that Rose, from whom Island Stock Transfer\n\n had exclusively taken instructions to date, controlled the bulk sale of all the “free-trading”\n\n shares.\n\n 49. By email dated February 27, 2013, Mirman asked Dilley how to handle a lost\n\n certificate of one of the “free-trading” shareholders because “Sheldon [Rose] is in New York\n\n today closing Global.” Dilley instructed Island Stock Transfer’s Director of Operations to\n\n respond to Mirman’s request. Island Stock Transfer effectuated the bulk transfer of virtually\n\n\n\n\n 18\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 168 of 211\n\n\n\n\n all shares of Global Group to the same exact small group of buyers as E-Waste represented by\n\n the same counsel.\n\n 50. Dilley also assisted Rose’s efforts to sell the last Mirman/Rose Company, First\n\n Xeris. Soon after FINRA’s clearance of Spartan Securities’ Form 211 for First Xeris in March\n\n 2014, a shell finder emailed Dilley: “I understand Sheldon Rose is trying to contact you\n\n regarding his new company [First Xeris] being dropped to Pink[] [Sheet] from QB based on\n\n the new bid/ask rules. I have a buyer for it, but not as a pink.” Dilley then placed daily bids\n\n in the open market at Rose’s request. Accordingly, Dilley knew or was reckless in not knowing\n\n that First Xeris was a company that Rose controlled and was looking to sell.\n\n Spartan Securities’ Involvement in the Mirman/Rose Fraud\n\n 51. With Dilley’s knowing or reckless involvement, Spartan Securities made\n\n crucial contributions to the Mirman/Rose fraud.\n\n 52. Dilley’s assistant as of 2012 prepared the Form 211 and all related documents\n\n based on templates. The assistant was instructed that a Spartan Securities’ principal would\n\n review the assistant’s draft and revise it to match the facts particular to each issuer. Dilley’s\n\n assistant submitted the Form 211 only upon Dilley’s approval. The assistant would similarly\n\n draft responses to FINRA deficiency letters for review by a Spartan Securities principal (Lopez\n\n from early 2013 onward), and only sent the responses to FINRA upon that principal’s (usually\n\n Lopez) express approval.\n\n 53. Dilley signed the Forms 211 for the Mirman/Rose Companies but was largely\n\n uninvolved in responding to FINRA’s deficiency letters or investigating any red flags\n\n identified by FINRA.\n\n 19\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 169 of 211\n\n\n\n\n 54. By letter dated February 8, 2013, the Commission’s examination staff identified\n\n deficiencies and weaknesses in Spartan Securities’ compliance with certain federal securities\n\n laws, including (1) Spartan Securities’ possible violation of Rule 15c2-11 by failing to\n\n adequately address numerous red flags and provide material information to FINRA in\n\n connection with an unrelated Form 211 application, and (2) Lopez’s failure to adequately\n\n implement Spartan Securities’ written procedures regarding Forms 211 which required Lopez\n\n to review the information outlined in Rule 15c2-11 together with any supplemental information\n\n obtained and to be alert to red flags.\n\n 55. As of 2013, Dilley and Eldred instructed the assistant to send draft responses to\n\n the FINRA deficiency letters to Lopez for review and approval. For example, by email dated\n\n October 18, 2013, the assistant wrote Eldred: “I know that Dave [Lopez] looks at these [draft\n\n deficiency responses] now, but he’s been slammed . . . . Any chance you can make an exception\n\n and review this one?” Dilley tasked Lopez with that responsibility, for example, when Dilley\n\n was unavailable or because Lopez “has got a lot more experience.”\n\n 56. Mirman and Rose were Spartan Securities’ primary source of information\n\n throughout the Form 211 process. Mirman and Rose would provide Spartan Securities with\n\n documents in the name of the sole officer and many documents they prepared themselves,\n\n including spreadsheets detailing who solicited the shareholders and the relationship between\n\n the solicitor and shareholder. There were substantial similarities in these shareholders lists,\n\n including the sole officer of First Social appearing as a shareholder of 10 other Mirman/Rose\n\n Companies.\n\n\n\n\n 20\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 170 of 211\n\n\n\n\n 57. The assistant sent FINRA deficiency letters to Mirman and Rose without\n\n confirming or inquiring into the authority of Mirman and Rose to act for the Mirman/Rose\n\n Companies (i.e. if they were a reliable source of information), despite the fact that Mirman and\n\n Rose were not officers, directors or even named shareholders of any of the Mirman/Rose\n\n Companies.\n\n 58. Sometimes within one week of Mirman and Rose’s solicitation, Spartan\n\n Securities submitted the Form 211 and a cover letter (with exhibits) to FINRA. However,\n\n Spartan Securities consistently misrepresented that: (1) the sole officer – not Mirman or Rose\n\n – called Dilley based on a referral (often from an attorney); (2) Spartan Securities agreed to\n\n file the Form 211 after “months” of due diligence; and (3) Spartan Securities had no prior\n\n relationship with the issuer or any of its “representatives” (despite repeatedly filing Forms 211\n\n at Mirman and Rose’s request).\n\n 59. For example, by email dated November 6, 2013, Rose solicited Dilley to file a\n\n Form 211 for Envoy Group and told Dilley: “We know the process, included is some due\n\n dil[igence] per our conversation” including a chart listing the Form S-1 shareholders and their\n\n purported relationships with each other. Spartan Securities filed the Envoy Group Form 211\n\n five days later, misrepresenting that Envoy Group’s sole officer contacted Dilley (with no\n\n mention of Rose), Spartan Securities had conducted due diligence over the past month, and\n\n Spartan Securities had no other relationship with Envoy Group’s “representatives.”\n\n 60. Each Form 211 cover letter also misrepresented that the issuer was “not\n\n working with any consultants” despite Dilley knowing or being reckless in not knowing that\n\n\n\n\n 21\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 171 of 211\n\n\n\n\n Mirman and Rose had no publicly disclosed association with the Mirman/Rose Companies yet\n\n took various critical actions on their behalf.\n\n 61. Each Form 211 cover letter also misleadingly stated that “there are no other\n\n companies that the current officers or directors have requested a listing quotation on,” despite\n\n Dilley knowing or being reckless in not knowing that Mirman or Rose, who acted as de facto\n\n officers and directors, had requested all Forms 211 for the Mirman/Rose Companies.\n\n 62. Each Form 211 cover letter also misrepresented that the issuer was not in\n\n negotiations for any actual or potential merger or acquisition, despite Dilley knowing or being\n\n reckless in not knowing that the first Mirman/Rose Company had been available for sale upon\n\n Form 211 clearance by FINRA and his involvement in numerous other sales by Mirman and\n\n Rose shortly after Form 211 clearance.\n\n 63. Each cover letter also attached a shareholder chart stating that the sole officer\n\n had solicited each shareholder as a “friend” and that no other people had been solicited to\n\n invest, when in fact Mirman and Rose had solicited the shareholders and reused many of the\n\n same shareholders across up to 12 Mirman/Rose Companies. Dilley knew or was reckless in\n\n not knowing that Mirman and Rose controlled all the shares given, among other things, the\n\n substantial similarities across the shareholder lists.\n\n 64. Each Form 211 cover letter also misrepresented that the Mirman/Rose\n\n Company was following a specific business plan, despite Dilley knowing or being reckless in\n\n not knowing that the issuer was merely a public vehicle being packaged for sale and controlled\n\n by Mirman and Rose.\n\n\n\n\n 22\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 172 of 211\n\n\n\n\n 65. Each Form 211 also misrepresented that Spartan Securities was not aware or in\n\n possession of any material information, including adverse information, regarding the\n\n Mirman/Rose Company, despite Dilley knowing or being reckless in not knowing that Mirman\n\n and Rose were undisclosed control persons developing the Mirman/Rose Company as a mere\n\n public vehicle to be sold as a shell.\n\n 66. No one at Spartan Securities questioned the accuracy of the Rule 15c2-11(a)\n\n information for any of the Mirman/Rose Companies. The Forms S-1 described start-up\n\n companies run exclusively by the sole officer with no mention of Mirman or Rose. Dilley did\n\n not even review (but “just kept on file”) the Forms S-1 which were strikingly similar across\n\n the Mirman/Rose Companies, including: (1) the same number of issued shares; (2) similar\n\n annual budgets (purportedly for effectuation of vastly different business plans); (3) the same\n\n small offering size (dwarfed by the annual budgets); and (4) similar assets (all cash and\n\n substantially the same amount):\n\n\n\n\n 23\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 173 of 211\n\n\n\n\n MIRMAN/ROSE COMPANY FORM S-1 DISCLOSURES\n\n Total\n Form S-1 # Of Shares Operating Sole Officer\n Mirman/Rose Form S-1 Assets\n Offering In Name Of Budget # of Hours\n Company Shares (All\n Size Sole Officer (Duration) Work Week\n Cash)\n $400,000\n Kids Germ 3,000,000 $30,000 9,000,000 $5,351 (18 months) 10-25 hours\n\n Obscene $500,000\n 3,000,000 $52,500 9,000,000 $9,000 (18 months) 10-25 hours\n Jeans\n $477,500\n On The Move 3,500,000 $52,500 9,000,000 $9,000 (12 months) 10-25 hours\n\n Rainbow $500,000\n 2,500,000 $31,250 9,000,000 $8,912 (18 months) 10-25 hours\n Coral\n $587,500\n First Titan 3,000,000 $37,500 9,000,000 $8,922 (18 months) 10-25 hours\n\n $425,000\n Neutra 3,000,000 $42,000 9,000,000 $8,900 (12 months) 10-25 hours\n\n $500,000\n Aristocrat 3,900,000 $39,000 9,000,000 $8,900 (18 months) 10-25 hours\n\n $475,000\n First Social 3,000,000 $45,000 9,000,000 $8,900 (18 months) 10-25 hours\n\n Global $500,000\n 3,000,000 $34,500 9,000,000 $8,900 (18 months) 10-25 hours\n Group\n\n $600,000\n E-Waste 3,000,000 $36,000 9,000,000 $8,301 (18 months) 10-25 hours\n\n First $500,000\n 3,000,000 $34,500 9,000,000 $8,900 (18 months) 10-25 hours\n Independence\n $612,500\n Envoy Group 3,000,000 $37,500 9,000,000 $8,908 (18 months) 10-25 hours\n\n Changing $339,000\n 3,000,000 $30,000 9,000,000 $8,900 (18 months) 10-25 hours\n Technologies\n $650,000\n First Xeris 3,000,000 $39,000 9,000,000 $8,976 (18 months) 10-25 hours\n\n\n\n\n 24\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 174 of 211\n\n\n\n\n 67. Moreover, many Mirman/Rose Companies publicly filed periodic reports with\n\n the Commission prior to Form 211 clearance which reported no assets, revenues, or expenses\n\n other than professional fees.\n\n 68. In at least 7 deficiency letters (including those for First Independence, Changing\n\n Technologies and First Xeris), FINRA requested detailed information with respect to the\n\n circumstances surrounding the registered offering per the Form S-1, including how many\n\n persons were solicited and ultimately invested. Spartan Securities submitted shareholder\n\n charts stating that the sole officer had solicited each shareholder as a “friend,” and reported the\n\n same solicitation success rate (24 solicited, 24 invested). The lists had remarkably similar\n\n features, including the same number of shares and shareholders, and overlapping rosters (some\n\n shareholders were the sole officer of other Mirman/Rose Companies and appeared on up to 12\n\n lists).\n\n 69. In at least 12 deficiency letters (including those for First Independence, Envoy\n\n Group and First Xeris), FINRA specifically inquired whether anyone other than the named\n\n shareholders had control over any aspect of the shares, including “any past, present, or future\n\n arrangements.” Spartan Securities conducted no inquiry despite, among other things, the\n\n striking similarities across rosters that contained the same shareholder names, Dilley’s\n\n involvement in bulk sales of all shares by Mirman and Rose, and Island Stock Transfer’s bulk\n\n issuance and transfer of all shares of Mirman/Rose Companies.\n\n 70. Spartan Securities also failed to inquire regarding numerous red flags as\n\n required by Rule 15c2-11, which requires a broker-dealer to evaluate any “adverse\n\n information” in its possession when determining whether it has a reasonable basis for the\n\n 25\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 175 of 211\n\n\n\n\n accuracy of information and reliability of its source. For Spartan Securities, such red flags\n\n included the substantial similarities in the Forms S-1, the substantially similar shareholder\n\n rosters, the use of sole officers who were related to each other and appeared as shareholders\n\n on other Mirman/Rose Companies, and Mirman and Rose as the same solicitors and sources\n\n of information across the Mirman/Rose Companies.\n\n 71. FINRA also posed several other issuer-specific questions or concerns in its\n\n deficiency letters. In responding to FINRA’s deficiency letters, Spartan Securities did not\n\n follow its own written policies and procedures which required that the assistant “together with\n\n the CCO or other designated officer gather information from the issuer to respond to the\n\n FINRA comments” in deficiency letters and investigate red flags. Spartan Securities’\n\n procedures further required the designated officer to initial each page of correspondence to\n\n FINRA evidencing that review and investigation. None of Spartan Securities’ correspondence\n\n to FINRA in connection with the Mirman/Rose Companies contained any such initials.\n\n 72. Lopez cursorily reviewed and approved Spartan Securities’ responses to at least\n\n the following deficiency letters for the Forms 211 of First Independence, Envoy Group,\n\n Changing Technologies and First Xeris:\n\n Mirman/Rose Date of FINRA Date of Spartan Number of Questions\n Company Deficiency Letter Response from FINRA\n First Independence 2/27/2013 3/12/2013 7\n Envoy Group 11/21/2013 11/25/2013 6\n Envoy Group 12/5/2013 12/9/2013 1\n Envoy Group 12/17/2013 12/18/2013 1\n Changing 12/3/2013 12/17/2013 4\n Technologies\n First Xeris 2/7/2014 2/13/2014 5\n\n\n\n 26\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 176 of 211\n\n\n\n\n 73. Lopez approved each response within an hour of the assistant’s request, making\n\n no inquiry into FINRA’s questions (or the issuer more generally) despite FINRA raising at\n\n least 24 questions about these four issuers.\n\n 74. For example, FINRA questioned whether First Independence was a “shell\n\n company” despite its non-shell designation in periodic reports. Despite understanding that any\n\n shell issue should be investigated by asking the issuer basic questions about its business\n\n operations to see whether it is a “blank check company, that there’s an ongoing effort to further\n\n the business plan,” Lopez made no such investigation or inquiry with respect to First\n\n Independence’s business operations or purpose.\n\n 75. Spartan Securities (including Lopez) failed to review Rule 15c2-11 information\n\n or inquire further regarding red flags that were expressly raised by FINRA on the subsequently\n\n filed Forms 211. On the Envoy Group Form 211, in its deficiency letter dated November 21,\n\n 2013, FINRA asked Spartan Securities for detailed descriptions of the relationships between:\n\n (1) Envoy Group, Jocelyn Nicholas (Envoy Group’s sole officer) and Mark Nicholas (Kids\n\n Germ’s sole officer); (2) Envoy Group, Jocelyn Nicholas, Mark Nicholas, and Kids Germ; and\n\n (3) Mark Nicholas and Spartan Securities. By email dated November 22, 2013, Dilley’s\n\n assistant forwarded this letter to Dilley and Lopez, and alerted them to the facts that “Shelly\n\n [Rose] sent us this one” and that Spartan Securities had filed the Form 211 for Kids Germ.\n\n Dilley and Lopez conducted no investigation into the two issuers (including whether Rose was\n\n a reliable source for Envoy Group) or Spartan Securities’ relationship with either of them.\n\n Specifically, Lopez merely told the assistant that “I am not familiar with any of those people\n\n or that company,” and Dilley instructed the assistant simply to rely on Envoy Group’s\n\n 27\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 177 of 211\n\n\n\n\n response. Lopez then approved the deficiency response, which misrepresented that the only\n\n relationship among all the identified parties was the spousal relationship between Jocelyn and\n\n Mark Nicholas, Envoy Group’s sole officer had “no participation in any way with Kids Germ,”\n\n and Spartan Securities had no relationship with Kids Germ “and/or any of its representatives.”\n\n 76. In its deficiency letter dated November 25, 2013, FINRA inquired a second time\n\n for details of any relationship between Envoy Group’s sole officer and Kids Germ. Lopez\n\n approved the deficiency response, which misrepresented that Envoy Group’s sole officer’s\n\n only relationship with Kids Germ was as a 0.42% shareholder despite the fact that she was also\n\n an officer of Kids Germ.\n\n 77. Dilley and Lopez had numerous facts readily in their possession contradicting\n\n these representations and the Rule 15c2-11 information, including: (1) Spartan Securities\n\n through Dilley filed both the Envoy Group and Kids Germ Form 211, and Kids Germ’s DTC\n\n application, at Rose’s request; (2) Spartan Securities possessed numerous documents showing\n\n that Envoy Group’s sole officer had become a Kids Germ officer per Spartan Securities’ advice\n\n to Rose to obtain DTC eligibility; (3) Lopez acted on Rose’s authorization to speak with an\n\n auditor for Kids Germ despite Rose not being an officer, director, or authorized person on Kids\n\n Germ’s Corporate Authorization Form; (4) Envoy Group and Kids Germ had 11 shareholders\n\n in common (including the sole officers of two other Mirman/Rose Companies) and the same\n\n capitalization structure (9,000,000 share control block, 3,000,000 Form S-1 shares among 24\n\n shareholders); and (5) Dilley attempted to arrange a sale of Kids Germ for Rose.\n\n 78. On November 6, 2013, Mirman told Dilley “I need to file a 211 through your\n\n firm” for Changing Technologies. That same day, Rose had solicited Dilley to file the Form\n\n 28\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 178 of 211\n\n\n\n\n 211 for Envoy Group. Dilley told Mirman: “Funny you guys called me within a few minutes\n\n of each other.” Dilley then put Spartan Securities and Island Stock Transfer employees in\n\n contact with Mirman, who in turn approved the certified shareholder list for Changing\n\n Technologies which Spartan Securities submitted to FINRA with the Form 211.\n\n 79. Dilley drafted the portion of the Form 211 representing that Mirman had\n\n referred Changing Technologies to Spartan Securities, but that Spartan Securities “does not\n\n have any other relationship with Al Mirman.” Dilley knew or was reckless in not knowing\n\n that this statement was false given the fact that Spartan Securities filed this and other Forms\n\n 211 at Mirman’s request.\n\n 80. By deficiency letter dated December 3, 2013, FINRA asked Spartan Securities\n\n for a “detailed explanation of the Issuer’s relationship with Al Mirman.” Spartan Securities\n\n sent FINRA’s deficiency letter only to Mirman to address this and other questions. Spartan\n\n Securities misrepresented to FINRA that the sole officer approached Mirman, a social\n\n acquaintance, for a broker-dealer recommendation and “Mirman has no relationship with\n\n Changing Technologies.” Lopez authorized this response despite Mirman having solicited\n\n Spartan Securities, sent Spartan Securities a series of documents for the Form 211, and\n\n approved the certified shareholder list which Spartan Securities submitted to FINRA with the\n\n Form 211. Moreover, no one at Spartan Securities (including Lopez) conducted any\n\n investigation into Mirman’s disciplinary history, including his being barred by FINRA in 2007\n\n from association with any FINRA member.\n\n\n\n\n 29\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 179 of 211\n\n\n\n\n Island Stock Transfer’s Involvement in the Mirman/Rose Fraud\n\n 81. Mirman and Rose retained Island Stock Transfer as the transfer agent for at\n\n least 12 of the Mirman/Rose Companies at or around the same time as retaining Spartan\n\n Securities to file the Form 211. For example, by email dated June 29, 2012, Dilley instructed\n\n an employee from each of Spartan Securities and Island Stock Transfer to “send [Rose] 211\n\n docs. [Transfer agent] agreement same terms as last deal they sent us.”\n\n 82. Dilley, Island Stock Transfer’s president, originated each relationship and\n\n personally took a number of steps on behalf of Island Stock Transfer for Mirman and Rose.\n\n Island Stock Transfer’s employees also ignored a host of red flags indicating that Mirman and\n\n Rose controlled the issuers as blank check companies and sold all the securities of those issuers\n\n owned by affiliates.\n\n 83. Island Stock Transfer has extensive written policies and procedures, which it\n\n largely ignored in its various transfer agent functions for the Mirman/Rose Companies. Island\n\n Stock Transfer’s policies and procedures contained many provisions intended to ensure that\n\n Island Stock Transfer employees communicated only with authorized persons as identified in\n\n writing by the issuer clients. As part of the initial “client” package (sent to Mirman or Rose),\n\n Island Stock Transfer requested the issuer to complete a “Corporate Authorization Form” to\n\n identify those persons with whom Island Stock Transfer could communicate about the issuer.\n\n Mirman or Rose was named as an authorized person for only two of the 12 Mirman/Rose\n\n Companies for which Island Stock Transfer acted as transfer agent, yet for all 12 companies\n\n Island Stock Transfer took directions exclusively from Mirman and Rose.\n\n\n\n\n 30\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 180 of 211\n\n\n\n\n 84. Island Stock Transfer’s policies and procedures also required the issuer to\n\n provide a “list of insiders/control persons” at the onset of the relationship. Island Stock\n\n Transfer’s employees requested such lists from Mirman and Rose (not the sole officer), but\n\n never received one for any of the Mirman/Rose Companies.\n\n 85. According to Island Stock Transfer’s policies and procedures, all transfer\n\n records and shareholder lists are the “highly confidential” property of the issuer, and “shall not\n\n be given to unauthorized parties under any circumstances.” Moreover, Island Stock Transfer’s\n\n policies and procedures stated that “[s]hareholders may inquire about shares they own\n\n personally, but may not be provided with information concerning any other shareholder.”\n\n Nonetheless, Island Stock Transfer employees consistently provided both issuer and\n\n shareholder information to Mirman and Rose without inquiry.\n\n 86. At Dilley’s instruction, Island Stock Transfer employees exclusively\n\n communicated with and took direction from Mirman and Rose – and not the sole officer or\n\n shareholders – regarding both the issuers and the shares in the names of the friends and family.\n\n Island Stock Transfer first prepared a certified shareholder list with personal information\n\n provided by Mirman and Rose. Island Stock Transfer employees (some of whom were also\n\n employees of Spartan Securities, which used the lists for the pending Forms 211) requested\n\n and acted on Mirman and Rose’s approval of the list. Also, by email dated February 8, 2013,\n\n Rose instructed Dilley to make changes to the certified shareholder list of a Mirman/Rose\n\n Company.\n\n 87. Mirman and Rose then requested Island Stock Transfer to prepare stock\n\n certificates without a restrictive legend (stamped on the certificate to indicate that the shares\n\n 31\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 181 of 211\n\n\n\n\n are restricted from transfer or sale) in the names of the same number of friends-and-family\n\n shareholders (24). Island Stock Transfer’s policies and procedures provided that shares\n\n without restrictive legend “can NOT be issued in the name of an insider” (emphasis in original).\n\n Island Stock Transfer training materials reiterated that “Insiders ALWAYS have restricted\n\n stock” (emphasis in original). Island Stock Transfer’s Director of Operations, who trained the\n\n lower-level employees, knew that “insider” included “affiliates” as defined in Rule 144 of the\n\n Securities Act. Despite the “affiliate” definition including those controlled by or together with\n\n an issuer, the Director of Operations only looked to see if the shareholder was a named officer\n\n or 15%+ shareholder (or spouse of either one) to determine the “insider” or “affiliate” status.\n\n Even so, Island Stock Transfer issued unlegended certificates in the name of the spouse of the\n\n sole officer for at least 4 Mirman/Rose Companies.\n\n 88. Island Stock Transfer delivered all 24 certificates to Mirman and Rose (who\n\n were not named shareholders), despite Island Stock Transfer’s policies and procedures that\n\n shareholder information could only be provided to the shareholders themselves. For example,\n\n on February 14, 2013, Island Stock Transfer asked Rose for delivery instructions for “each\n\n certificate” of First Independence stock. Rose directed Island Stock Transfer to “mail all of\n\n the certificates to me as always in the past.”\n\n 89. Shortly after the clearance of Spartan Securities’ Form 211, Mirman and Rose\n\n requested Island Stock Transfer’s assistance with DTC applications premised on the securities\n\n being unrestricted. Island Stock Transfer submitted at least 12 DTC transfer agent attestation\n\n forms (6 signed by Dilley) attesting that it would comply with DTC’s operational requirements,\n\n including exercising diligence in the related securities transactions and providing DTC with\n\n 32\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 182 of 211\n\n\n\n\n complete and accurate information about the securities. Island Stock Transfer also received\n\n $7,500 from Envoy Group in connection with a DTC “services agreement.”\n\n 90. Island Stock Transfer, at the direction of Mirman or Rose, routinely transferred\n\n an unlegended certificate in the name of one friend-and-family shareholder to Cede & Co. in\n\n order to secure DTC eligibility. Dilley and other Island Stock Transfer employees also fielded\n\n Rose’s frequent urgent requests for updates on the DTC applications.\n\n 91. Island Stock Transfer then effectuated the bulk transfer of all or virtually all the\n\n securities (both the control block in the name of the sole officer and the friends-and-family\n\n shares) of at least 12 Mirman/Rose Companies through the preparation and delivery of\n\n unlegended stock certificates to a small buyer group. The same or substantially similar groups\n\n (represented by the same counsel) purchased multiple Mirman/Rose Companies.\n\n 92. Island Stock Transfer received instruction letters from buyer’s counsel who\n\n presented Island Stock Transfer with blank stock powers (sometimes dated months earlier) for\n\n the entire set of certificates that Island Stock Transfer had originally delivered to Mirman or\n\n Rose. The instruction letters detailed how all the shares would be transferred. For some\n\n issuers, there was a single instruction letter indicating that all shares were simultaneously being\n\n purchased pursuant to attached stock purchase agreements “of like tenor” with Rose identified\n\n as “Seller’s Representative.” For other issuers, Island Stock Transfer received 5-6 instruction\n\n letters from the same counsel in a short period of time with a series of stock purchase\n\n agreements with the same effective date and purchase price.\n\n 93. Island Stock Transfer received a legal opinion letter for only two of the 12 bulk\n\n transfers (First Independence and First Social). Those two letters were from the same lawyer\n\n 33\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 183 of 211\n\n\n\n\n (Harrison) on the same day with obvious misstatements that First Independence was not a\n\n “shell” company and First Social’s sole officer’s spouse was not an “affiliate” of First Social.\n\n 94. Shortly after the bulk transfers, Island Stock Transfer continued to support the\n\n small buyer groups in transferring their certificates into Cede & Co. and broker positions by\n\n which the buyer groups publicly traded shares of the Mirman/Rose Companies. For example,\n\n First Independence became the subject of a fraudulent pump-and-dump in public trading\n\n shortly after FINRA’s clearance of Spartan Securities’ Form 211 and Island Stock Transfer’s\n\n bulk transfer of First Independence securities.\n\n 95. Island Stock Transfer routinely processed the bulk transfers without restrictive\n\n legend solely on the basis of the instruction letters and blank stock powers, and despite\n\n knowing or recklessly not knowing – and ignoring red flags – that the bulk transfers involved\n\n affiliates. The bulk nature of the sale itself was indicative of the affiliate status of the sellers –\n\n i.e. the fact that all shares were being sold at the same time to a small group of buyers indicated\n\n common control over all such shares.\n\n 96. For example, in October 2011, Island Stock Transfer transferred all the\n\n securities of two Mirman/Rose Companies (Rainbow Coral and Neutra) to the same buyers’\n\n counsel. Dilley had recently signed the Forms 211 for both issuers upon Mirman and Rose’s\n\n request. Dilley was also aware that in September 2011 Mirman had ordered Island Stock\n\n Transfer to pay a Rainbow Coral invoice out of funds attributed to Neutra. Also in September\n\n 2011, Rose requested that Island Stock Transfer transfer the certificate of one Neutra\n\n shareholder to a buyer who, two weeks later, was part of the bulk transfer of all other Neutra\n\n\n\n\n 34\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 184 of 211\n\n\n\n\n securities. Dilley signed unlegended certificates for both the Neutra and Rainbow Coral bulk\n\n transfers on the same day.\n\n 97. Similarly, in December 2012 and January 2013, Dilley signed letters on behalf\n\n of Island Stock Transfer at Mirman and Rose’s request expressly in furtherance of Mirman and\n\n Rose’s selling E-Waste and Global Group. In January and February 2013, Island Stock\n\n Transfer received instructions from the same buyers’ counsel for the transfer of virtually all\n\n the securities of E-Waste and Global Group to the same group of five buyers (including an\n\n entity in the counsel’s name). Island Stock Transfer also received a stock purchase agreement\n\n providing that “all of the free trading shares” of E-Waste were being purchased pursuant to\n\n stock purchase agreements “of like tenor” with Rose as “Seller’s Representative.”\n\n 98. Later in 2013, Island Stock Transfer similarly delivered all the shares of two\n\n other Mirman/Rose Companies (First Independence and First Social) to the same buyer’s\n\n counsel based on instructions to transfer all the “free-trading” securities at the same time as\n\n the control block.\n\n 99. In June and July 2014, Island Stock Transfer effectuated the bulk transfer of all\n\n the securities of Changing Technologies per instruction letters and blank stock powers on\n\n behalf of the same or substantially similar buyer group represented by the same counsel as at\n\n least four other Mirman/Rose Companies. Island Stock Transfer’s “batch” (the set of\n\n documents reviewed for the transfer requests) included an email exchange dated June 3, 2014,\n\n between Mirman and the buyer’s counsel with respect to the stock certificate of one of the\n\n friends-and-family shareholders for whom Island Stock Transfer had already issued a new\n\n certificate in the name of Cede & Co. The buyer’s counsel told Mirman that it was missing\n\n 35\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 185 of 211\n\n\n\n\n that shareholder’s certificate. Mirman responded: “His stock was deposited with [a broker] for\n\n DTC purposes. You have to have someone open an account with [the broker] and purchase\n\n the stock at a nominal amount.” Despite these indications of Mirman’s control over the bulk\n\n transfer of all the “free-trading” shares of Changing Technologies to one buyer group, Island\n\n Stock Transfer delivered unlegended certificates for all of the other outstanding shares to the\n\n buyer’s counsel.\n\n B. The Daniels/Fan/Harrison Shell Factory\n\n 100. Daniels, Fan and Harrison manufactured undisclosed blank check companies\n\n based on a deceptive public float of purportedly unrestricted shares. Other than PurpleReal,\n\n Daniels acquired a small local business and filed a Form S-1 secondary offering for shares he\n\n had gifted to approximately 30 friends and family. Daniels and Harrison then orchestrated\n\n Form 211 and DTC applications for the float to be eligible for open-market trading and\n\n clearing.\n\n 101. Daniels and Harrison sold their first company, Dinello/AF Ocean, to Fan for\n\n approximately $500,000 in Fan’s endeavor to amass a roster of public companies for later\n\n reverse mergers with Chinese companies. Daniels and Fan then agreed to create three more\n\n public vehicles from scratch: Court/ChinAmerica, Wallbeds/Sichuan, and TTB/Ibex.\n\n 102. Daniels and Harrison retained Spartan Securities to file the following Forms\n\n 211:\n\n Daniels Company Form 211 Filing Form 211 Clearance Form 211\n Date Date Signatory\n Dinello/AF Ocean 5/20/2011 06/14/2011 Dilley\n Court/ChinAmerica 7/24/2012 8/30/2012 Eldred\n Wallbeds/Sichuan 10/25/2012 11/30/2012 Eldred\n TTB/Ibex 9/6/2013 10/29/2013 Eldred\n 36\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 186 of 211\n\n\n\n\n PurpleReal 7/31/2014 N/A (stop order) Eldred\n\n Eldred’s Knowledge of/Participation in the Daniels/Fan/Harrison Fraud\n\n 103. Daniels and Harrison have been friends with Eldred for at least 10 years.\n\n Harrison and Eldred’s wife had each been the sole officer of an issuer which had been acquired\n\n by reverse merger or other change-in-control transaction. Harrison and Daniels had assisted\n\n with the registration and sale of the issuer associated with Eldred’s wife. Eldred had offered\n\n that issuer to a prospective buyer performing a “shell search” in October 2009, and Daniels\n\n referred to that issuer as a “vehicle” in March 2010.\n\n 104. By email dated November 30, 2010, Eldred asked Harrison if regulators would\n\n have concern if his wife “creates another public company.” Harrison responded that she and\n\n Daniels “are filing [Dinello/AF Ocean] under my name and it has been two years since\n\n [Harrison’s other public company’s] acquisition.”\n\n 105. Eldred otherwise understood Daniels to be a principal (albeit undisclosed) of\n\n Dinello/AF Ocean. In April 2011, Daniels requested that Eldred prepare an Island Stock\n\n Transfer transfer agent agreement for Dinello/AF Ocean. In return for waiving Island Stock\n\n Transfer’s normal $7,500 setup fee, Eldred asked Harrison to modify Island Stock Transfer’s\n\n form contract by “put[ting] a paragraph in the contract that if the company does a reverse\n\n merger or there is a change of control then . . . there is a $5,000 termination fee,” a red flag\n\n that the issuer was intended to be sold from the onset.\n\n 106. Spartan Securities then filed Dinello/AF Ocean’s Form 211 in May 2011\n\n misrepresenting that the current and future business plan was the operation of a pizzeria, there\n\n was no present or future arrangement with respect to the transfer of any shares, and Spartan\n\n 37\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 187 of 211\n\n\n\n\n Securities was not aware or in possession of any material or adverse information about\n\n Dinello/AF Ocean. Spartan Securities also misrepresented that Eldred was contacted by the\n\n named officer (other than Harrison) of Dinello/AF Ocean, whose identity Daniels and Harrison\n\n used to create the façade of independent management and who never communicated with and\n\n had not even heard of Spartan Securities or Eldred.\n\n 107. Soon after Form 211 clearance, by email dated July 20, 2011, Daniels asked\n\n Eldred if he knew whether a law firm was “doing any [reverse mergers] that they may need a\n\n shell for?” Two days later, Eldred referred that law firm to Daniels for “an OTCBB vehicle\n\n that [Daniels] would like to do something with.” On August 18, 2011, Daniels again asked\n\n Eldred about “available vehicles for a [reverse merger]” with Dinello/AF Ocean.\n\n 108. Eldred also assisted Daniels with DTC eligibility for Dinello/AF Ocean. In\n\n June 2011, Spartan Securities initiated the DTC application misrepresenting that Dinello/AF\n\n Ocean was “not a shell” and otherwise eligible for electronic clearance. The application was\n\n granted in July 2011, but revoked because there was no subsequent deposit of shares into the\n\n DTC system. By email dated October 10, 2011, Eldred told Daniels “I’m working on getting\n\n it fixed for you” and discussed internally that an “x-clear transaction needs to take place” for\n\n DTC eligibility to be reinstated.\n\n 109. That same day, Eldred signed securities deposit forms misrepresenting that\n\n Daniels was never an “affiliate” of Dinello/AF Ocean. Specifically, in signing the forms,\n\n Eldred misrepresented to Spartan Securities’ clearing firm that he had “carefully reviewed” the\n\n request and supporting documents, and to his “best knowledge the information is true and\n\n\n\n\n 38\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 188 of 211\n\n\n\n\n correct and is made in compliance with all applicable federal and state securities laws” –\n\n despite knowing or being reckless in not knowing that Daniels controlled Dinello/AF Ocean.\n\n 110. On October 12, 2011, Eldred was copied on an email confirming that Spartan\n\n Securities was putting in an order to sell Dinello/AF Ocean shares on Daniels’ behalf. In fact,\n\n a Spartan Securities proprietary account purchased Daniels’ shares. Eldred confirmed with\n\n Daniels that this trade “has your problem worked out as long as DTC cooperates with our\n\n plan.”\n\n 111. As early as October 2011, Eldred knew or was reckless in not knowing that\n\n Daniels and Harrison had sold Dinello/AF Ocean to Fan. In or about June 2012, Eldred first\n\n negotiated with Fan to use Dinello/AF Ocean as a “public shell” for a potential reverse merger\n\n with Spartan Securities and Island Stock Transfer’s parent company. By email dated July 11,\n\n 2012, Eldred wrote Fan (copying Daniels and Harrison): “The net result is that you and your\n\n investors get an equity interest in our business, and you end up with the same basic public\n\n OTCBB shell that you have now.”\n\n 112. Eldred also became aware that Daniels and Fan were manufacturing\n\n Court/ChinAmerica, Wallbeds/Sichuan, and TTB/Ibex for Fan as public vehicles. On July 24,\n\n 2012, Spartan Securities filed the Form 211 for Court/ChinAmerica with Eldred signing as the\n\n principal responsible for all related submissions to FINRA. On July 30, 2012, Daniels told\n\n Eldred “Don’t forget that Andy [Fan] has three companies that he is doing registrations on\n\n including the 211 we filed on Court. So there should be plenty of room for you to have a\n\n meeting of the minds with [Fan]. Court is a super clean company that is a non-shell and the\n\n assets are fully depreciated so there can be a disposal of assets for a real clean deal.” By email\n\n 39\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 189 of 211\n\n\n\n\n dated July 30, 2012, Eldred responded “I would be happy to use Court as a vehicle” while its\n\n Form 211 was pending.\n\n 113. Eldred took further actions for Court/ChinAmerica, Wallbeds/Sichuan, and\n\n TTB/Ibex knowing or being reckless in not knowing that both Fan’s involvement in and the\n\n purpose of the issuers were undisclosed. On September 5, 2012, Eldred received an email\n\n (with the subject “AF Ocean Investment”) from an Island Stock Transfer employee to sign up\n\n Wallbeds/Sichuan as “yet another company with [Island Stock Transfer].” Eldred forwarded\n\n the message to Daniels and asked him to “call me.”\n\n 114. In October 2012, Eldred approved Spartan Securities’ submission of a price\n\n quote to FINRA for Court/ChinAmerica per the request of an employee of Dinello/AF Ocean,\n\n which Eldred himself had referred to as a “public OTCBB shell that [Fan has] now.” In January\n\n 2013, Eldred was forwarded a request from an AF Ocean employee for a transfer agent\n\n agreement for TTB/Ibex. Eldred then sent Daniels the TTB/Ibex agreement with the same\n\n terms as Dinello/AF Ocean, including the waiver of all upfront fees in favor of a fee in the\n\n event of a reverse merger.\n\n 115. Despite knowing or recklessly not knowing that these issuers were being\n\n developed as public vehicles for Fan, Eldred signed the three Forms 211 misrepresenting that\n\n each issuer was pursuing local business operations with no plans for mergers or changes of\n\n control despite, for example, Eldred himself proposing to “use [Court/ChinAmerica] as a\n\n vehicle” while its Form 211 was pending. The three Forms S-1 (part of the Rule 15c2-11(a)\n\n information) made these same misrepresentations, and also omitted any reference to Fan. The\n\n\n\n\n 40\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 190 of 211\n\n\n\n\n three Forms 211 also misrepresented that Spartan Securities had no other material or adverse\n\n information in its possession.\n\n 116. In these three Forms 211, Spartan Securities also misrepresented that it had no\n\n relationship with any officer or representative, despite (1) Daniels assisting the Eldreds with\n\n the sale of the prior public company in the name of Eldred’s wife; (2) Daniels being a customer\n\n with whom Spartan Securities entered open-market trades, (3) Eldred assisting Daniels with a\n\n shell buyer for Dinello/AF Ocean, and (4) Daniels assisting Spartan Securities in finding a\n\n potential reverse merger candidate (including all three Fan issuers).\n\n 117. Spartan Securities also misrepresented the manner in which it was solicited to\n\n file the Form 211. On Wallbeds/Sichuan and TTB/Ibex, Spartan Securities misrepresented\n\n that Eldred had been telephonically contacted by a “friend” (a Dinello/AF Ocean employee),\n\n and had no relationship with any of their representatives (e.g. Daniels). FINRA then asked for\n\n more detail on the manner of solicitation in its first Wallbeds/Sichuan deficiency letter. The\n\n assistant sent Eldred the portion of the Form 211 on the manner of solicitation: “Am I missing\n\n something here, or did I do something wrong?” Eldred told the preparer just to “remove the\n\n friend part,” which remained in the later Form 211 for TTB/Ibex.\n\n 118. Spartan Securities also failed to inquire further regarding the presence of other\n\n red flags. For example, on both Court/ChinAmerica and Wallbeds/Sichuan, by letters dated\n\n July 27, 2012 and November 5, 2012, respectively, FINRA noted that numerous shareholders\n\n purportedly purchased shares with sequentially numbered cashier’s checks (a potential sign of\n\n someone other than the shareholder paying for the shares). Spartan Securities’ own policies\n\n and procedures (and SEC guidance) identify the “transfer of shares by control persons, as gifts,\n\n 41\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 191 of 211\n\n\n\n\n to third persons in order to help create a public market” as a red flag. Without any further\n\n inquiry into the information containing red flags, Spartan Securities simply cut-and-pasted\n\n responses received on behalf of the issuers (from Harrison and a Dinello/AF Ocean employee)\n\n that one shareholder obtained the checks with cash gathered from the others, when in fact it\n\n was Daniels who provided all of the cash for the purchase of the cashier’s checks.\n\n 119. Spartan Securities ignored other red flags, including the fact that the same\n\n officers and shareholders were involved (up to 26 of the 29 shareholders overlapped on\n\n substantially similar “regression diagrams” of the history of share transfers) and each Form S-\n\n 1 was for a secondary offering by which a small company was not raising any money yet\n\n incurring all the expenses related to the offering. Eldred did not review the Forms S-1 in\n\n connection with the Forms 211 as required by Rule 15c2-11.\n\n 120. Eldred later signed the Form 211 and received draft deficiency letter responses\n\n for TTB/Ibex. FINRA’s deficiency letter raised eight detailed questions, including inquiries\n\n into: (1) all relationships among the shareholders and officers; (2) present or future\n\n arrangements by which any person other than the named shareholder had control over the Form\n\n S-1 shares; (3) confirmation of the Form 211’s representation that TTB/Ibex had no intent\n\n either to effect a sale of shares or engage in change-of-control transaction; and (4) TTB/Ibex’s\n\n shell company status. Spartan Securities cut-and-pasted a response letter drafted by a\n\n Dinello/AF Ocean employee which listed Fan merely as an officer of TTB/Ibex as of\n\n September 2013 and the shareholders (the vast majority of which were shareholders of\n\n Dinello/AF Ocean, Court/ChinAmerica, and Wallbeds/Sichuan) as friends of Daniels.\n\n However, Spartan Securities failed to disclose any aspect of the Daniels/Fan/Spartan Securities\n\n 42\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 192 of 211\n\n\n\n\n relationship. Specifically, Spartan Securities stated that TTB/Ibex had no intent to engage in\n\n a change-of-control transaction and that the purported business objective (local pressure\n\n washing services) would be followed for at least one year, despite Eldred knowing or being\n\n reckless in not knowing of Daniels and Fan’s manufacture of public shells for Fan without\n\n regard to the purported local business operations.\n\n 121. Beyond the initial Forms 211 (and Spartan Securities’ initiation of unpriced\n\n quotations), Eldred approved submissions of priced quotations to FINRA pursuant to Rule\n\n 15c2-11 for Court/ChinAmerica, TTB/Ibex, and Wallbeds/Sichuan in December 2013, January\n\n 2014 and May 2014, respectively – just prior to the public trading in those stocks initiated by\n\n Daniels and the Dinello/AF Ocean employee. FINRA rejected the initial $0.10 quote on\n\n TTB/Ibex given the Form S-1 offering price of $0.01. By email dated January 6, 2014, Eldred\n\n acted upon the authorization of Daniels, who was no longer an officer of TTB/Ibex, to lower\n\n the quote to that price.\n\n 122. In July 2014, Harrison contacted Eldred to file a Form 211 for PurpleReal.\n\n FINRA requested proof of payment by the shareholders (many of whom were shareholders of\n\n the other Daniels Companies). Eldred learned that Daniels and Harrison had paid for all the\n\n shares, but by email approved Spartan Securities’ response to FINRA misrepresenting that the\n\n shareholders had purchased their shares.\n\n\n\n\n 43\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 193 of 211\n\n\n\n\n COUNT I\n\n Violations of Section 15(c)(2) and Rule 15c2-11 of the Exchange Act\n\n (Against Spartan Securities)\n\n 123. The Commission repeats and realleges Paragraphs 1 through 122 of its\n\n Complaint.\n\n 124. From at least as early as January 2010 through at least May 2014, Spartan\n\n Securities published quotations for securities or, directly or indirectly, submitted quotations\n\n for publication, in any quotation medium without having a reasonable basis for believing,\n\n based on a review of the documents and information required by Rule 15c2-11(a)(1) through\n\n (a)(5) (“paragraph (a) information”) together with other documents and information required\n\n by Rule 15c2-11(b), that the paragraph (a) information was accurate in all material respects\n\n and that the sources of that information were reliable.\n\n 125. By reason of the foregoing, Spartan Securities violated, and, unless enjoined, is\n\n reasonably likely to continue to violate, Section 15(c)(2) of the Exchange Act, 15 U.S.C.\n\n 78o(c)(2), and Rule 15c2-11, 17 C.F.R. § 240.15c2-11.\n\n COUNT II\n\n Aiding and Abetting Violations of Section 15(c)(2) and Rule 15c2-11 of the Exchange\n Act\n\n (Against Dilley, Eldred, and Lopez)\n\n 126. The Commission repeats and realleges Paragraphs 1 through 122 of its\n\n Complaint.\n\n\n\n\n 44\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 194 of 211\n\n\n\n\n 127. From at least as early as January 2010 through at least May 2014, Spartan\n\n Securities published quotations for securities or, directly or indirectly, submitted quotations\n\n for publication, in any quotation medium without having a reasonable basis for believing,\n\n based on a review of the paragraph (a) information together with other documents and\n\n information required by Rule 15c2-11(b), that the paragraph (a) information was accurate in\n\n all material respects and that the sources of that information were reliable, and by reason of\n\n the foregoing, violated Section 15(c)(2) and Rule 15c2-11 of the Exchange Act, 15 U.S.C. §\n\n 78o(c)(2), and 17 C.F.R. § 240.15c2-11.\n\n 128. From at least as early as January 2010 through at least March 2014, Dilley\n\n knowingly or recklessly provided substantial assistance to Spartan Securities’ violations of\n\n Section 15(c)(2) and Rule 15c2-11 of the Exchange Act, 15 U.S.C. § 78o(c)(2), and 17 C.F.R.\n\n § 240.15c2-11, and is deemed to be in violation of this provision to the same extent as Spartan\n\n Securities.\n\n 129. From at least as early as June 2011 through at least May 2014, Eldred\n\n knowingly or recklessly provided substantial assistance to Spartan Securities’ violations of\n\n Section 15(c)(2) and Rule 15c2-11 of the Exchange Act, 15 U.S.C. § 78o(c)(2), and 17 C.F.R.\n\n § 240.15c2-11, and is deemed to be in violation of this provision to the same extent as Spartan\n\n Securities.\n\n 130. From at least as early as March 2013 through at least March 2014, Lopez\n\n knowingly or recklessly provided substantial assistance to Spartan Securities’ violations of\n\n Section 15(c)(2) and Rule 15c2-11 of the Exchange Act, 15 U.S.C. § 78o(c)(2), and 17 C.F.R.\n\n\n\n\n 45\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 195 of 211\n\n\n\n\n § 240.15c2-11, and is deemed to be in violation of this provision to the same extent as Spartan\n\n Securities.\n\n 131. By reason of the foregoing, Dilley, Eldred, and Lopez aided and abetted and,\n\n unless enjoined, are reasonably likely to continue to aid and abet, violations of Section 15(c)(2)\n\n and Rule 15c2-11 of the Exchange Act, 15 U.S.C. § 78o(c)(2), and 17 C.F.R. § 240.15c2-11.\n\n COUNT III\n\n Violations of Section 17(a)(1) of the Securities Act\n\n 132. The Commission repeats and realleges Paragraphs 1 through 122 of its\n\n Complaint.\n\n (Against Spartan Securities, Island Stock Transfer, and Dilley – Mirman/Rose\n Companies)\n\n 133. From at least as early as December 2009 through at least July 2014, Spartan\n\n Securities, Island Stock Transfer, and Dilley, in the offer or sale of any securities by the use of\n\n any means or instruments of transportation or communication in interstate commerce or by use\n\n of the mails, directly or indirectly knowingly or recklessly employed any device, scheme or\n\n artifice to defraud.\n\n (Against Spartan Securities and Eldred – Daniels Companies)\n\n 134. From at least as early as May 2011 through at least August 2014, Spartan\n\n Securities and Eldred, in the offer or sale of any securities by the use of any means or\n\n instruments of transportation or communication in interstate commerce or by use of the mails,\n\n directly or indirectly, knowingly or recklessly employed any device, scheme or artifice to\n\n defraud.\n\n\n 46\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 196 of 211\n\n\n\n\n 135. By reason of the foregoing, Spartan Securities, Island Stock Transfer, Dilley\n\n and Eldred violated, and, unless enjoined, are reasonably likely to continue to violate, Section\n\n 17(a)(1) of the Securities Act, 15 U.S.C. § 77q(a)(1).\n\n COUNT IV\n\n Violations of Section 17(a)(3) of the Securities Act\n\n 136. The Commission repeats and realleges Paragraphs 1 through 122 of its\n\n Complaint.\n\n (Against Spartan Securities, Island Stock Transfer, and Dilley – Mirman/Rose\n Companies)\n\n 137. From at least as early as December 2009 through at least July 2014, Spartan\n\n Securities, Island Stock Transfer and Dilley, in the offer or sale of securities by the use of any\n\n means or instruments of transportation or communication in interstate commerce or by use of\n\n the mails, directly or indirectly, negligently engaged in transactions, practices and courses of\n\n business which operated or would have operated as a fraud or deceit upon the purchasers and\n\n prospective purchasers of such securities.\n\n (Against Spartan Securities and Eldred – Daniels Companies)\n\n 138. From at least as early as May 2011 through at least August 2014, Spartan\n\n Securities and Eldred, in the offer or sale of securities by the use of any means or instruments\n\n of transportation or communication in interstate commerce or by use of the mails, directly or\n\n indirectly, negligently engaged in transactions, practices and courses of business which\n\n operated or would have operated as a fraud or deceit upon the purchasers and prospective\n\n purchasers of such securities.\n\n\n 47\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 197 of 211\n\n\n\n\n 139. By reason of the foregoing, Spartan Securities, Island Stock Transfer, Dilley\n\n and Eldred violated, and, unless enjoined, are reasonably likely to continue to violate, Section\n\n 17(a)(3) of the Securities Act, 15 U.S.C. § 77q(a)(3).\n\n COUNT V\n\n Violations of Section 10(b) and Rule 10b-5(a) of the Exchange Act\n\n 140. The Commission repeats and realleges Paragraphs 1 through 122 of its\n\n Complaint.\n\n (Against Spartan Securities, Island Stock Transfer, and Dilley – Mirman/Rose\n Companies)\n\n 141. From at least as early as December 2009 through at least July 2014, Spartan\n\n Securities, Island Stock Transfer, and Dilley, directly and indirectly, by use of any means or\n\n instrumentality of interstate commerce, or of the mails, knowingly or recklessly employed\n\n devices, schemes or artifices to defraud in connection with the purchase or sale of securities.\n\n (Against Spartan Securities and Eldred – Daniels Companies)\n\n 142. From at least as early as May 2011 through at least May 2014, Spartan\n\n Securities and Eldred, directly and indirectly, by use of any means or instrumentality of\n\n interstate commerce, or of the mails, knowingly or recklessly employed devices, schemes or\n\n artifices to defraud in connection with the purchase or sale of securities.\n\n 143. By reason of the foregoing, Spartan Securities, Island Stock Transfer, Dilley\n\n and Eldred violated, and, unless enjoined, are reasonably likely to continue to violate, Section\n\n 10(b) and Rule 10b-5(a) of the Exchange Act, 15 U.S.C. § 78j(b) and 17 C.F.R. § 240.10b-\n\n 5(a).\n\n\n 48\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 198 of 211\n\n\n\n\n COUNT VI\n\n Violations of Section 10(b) and Rule 10b-5(b) of the Exchange Act\n\n 144. The Commission repeats and realleges Paragraphs 1 through 122 of its\n\n Complaint.\n\n (Against Spartan Securities, Island Stock Transfer, and Dilley – Mirman/Rose\n Companies)\n\n 145. From at least as early as December 2009 through at least April 2014, Spartan\n\n Securities, Island Stock Transfer, and Dilley, directly and indirectly, by use of any means or\n\n instrumentality of interstate commerce, or of the mails, knowingly or recklessly made untrue\n\n statements of material facts and omitted to state material facts necessary in order to make the\n\n statements made, in light of the circumstances under which they were made, not misleading in\n\n connection with the purchase or sale of securities.\n\n (Against Spartan Securities and Eldred – Daniels Companies)\n\n 146. From at least as early as May 2011 through at least May 2014, Spartan\n\n Securities and Eldred, directly and indirectly, by use of any means or instrumentality of\n\n interstate commerce, or of the mails, knowingly or recklessly made untrue statements of\n\n material facts and omitted to state material facts necessary in order to make the statements\n\n made, in light of the circumstances under which they were made, not misleading in connection\n\n with the purchase or sale of securities.\n\n 147. By reason of the foregoing, Spartan Securities, Island Stock Transfer, Dilley\n\n and Eldred violated, and, unless enjoined, are reasonably likely to continue to violate, Section\n\n 10(b) and Rule 10b-5(b) of the Exchange Act, 15 U.S.C. § 78j(b) and 17 C.F.R. § 240.10b-\n\n 5(b).\n 49\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 199 of 211\n\n\n\n\n COUNT VII\n\n Violations of Section 10(b) and Rule 10b-5(c) of the Exchange Act\n\n 148. The Commission repeats and realleges Paragraphs 1 through 122 of its\n\n Complaint.\n\n (Against Spartan Securities, Island Stock Transfer, and Dilley – Mirman/Rose\n Companies)\n\n 149. From at least as early as December 2009 through at least July 2014, Spartan\n\n Securities, Island Stock Transfer, and Dilley, directly and indirectly, by use of any means or\n\n instrumentality of interstate commerce, or of the mails, knowingly or recklessly engaged in\n\n acts, practices and courses of business which operated or would have operated as a fraud or\n\n deceit upon any person in connection with the purchase or sale of securities.\n\n (Against Spartan Securities and Eldred – Daniels Companies)\n\n 150. From at least as early as May 2011 through at least May 2014, Spartan\n\n Securities and Eldred, directly and indirectly, by use of any means or instrumentality of\n\n interstate commerce, or of the mails, knowingly or recklessly engaged in acts, practices and\n\n courses of business which operated or would have operated as a fraud or deceit upon any person\n\n in connection with the purchase or sale of securities.\n\n 151. By reason of the foregoing, Spartan Securities, Island Stock Transfer, Dilley\n\n and Eldred violated, and, unless enjoined, are reasonably likely to continue to violate, Section\n\n 10(b) and Rule 10b-5(c) of the Exchange Act, 15 U.S.C. § 78j(b) and 17 C.F.R. § 240.10b-\n\n 5(c).\n\n\n\n\n 50\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 200 of 211\n\n\n\n\n COUNT VIII\n\n Aiding and Abetting Violations of Section 17(a)(1) of the Securities Act\n\n 152. The Commission repeats and realleges Paragraphs 1 through 122 of its\n\n Complaint.\n\n (Against Spartan Securities and Eldred – Daniels Companies)\n\n 153. From at least as early as July 2010 through at least August 2014, Daniels, Fan\n\n and Harrison, in the offer or sale of securities by the use of any means or instruments of\n\n transportation or communication in interstate commerce or by use of the mails, directly or\n\n indirectly, knowingly or recklessly employed devices, schemes or artifices to defraud, and by\n\n reason of the foregoing, violated Section 17(a)(1) of the Securities Act, 15 U.S.C. § 77q(a)(1).\n\n 154. From at least as early as May 2011 through at least August 2014, Spartan\n\n Securities and Eldred knowingly or recklessly provided substantial assistance to Daniels, Fan,\n\n and Harrison’s violations of Section 17(a)(1) of the Securities Act, 15 U.S.C. § 77q(a)(1), and\n\n are deemed to be in violation of this provision to the same extent as Daniels, Fan, and Harrison.\n\n (Against Spartan Securities, Island Stock Transfer, and Dilley – Mirman/Rose\n Companies)\n\n 155. From at least as early as January 2009 through at least July 2014, Mirman and\n\n Rose, in the offer or sale of any securities by the use of any means or instruments of\n\n transportation or communication in interstate commerce or by use of the mails, directly or\n\n indirectly, knowingly or recklessly employed devices, schemes or artifices to defraud, and by\n\n reason of the foregoing, violated Section 17(a)(1) of the Securities Act, 15 U.S.C. § 77q(a)(1).\n\n 156. From at least as early as December 2009 through at least July 2014, Spartan\n\n Securities, Island Stock Transfer, and Dilley knowingly or recklessly provided substantial\n 51\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 201 of 211\n\n\n\n\n assistance to Mirman and Rose’s violations of Section 17(a)(1) of the Securities Act, 15 U.S.C.\n\n § 77q(a)(1), and are deemed to be in violation of this provision to the same extent as Mirman\n\n and Rose.\n\n 157. By reason of the foregoing, Spartan Securities, Island Stock Transfer, Dilley\n\n and Eldred aided and abetted and, unless enjoined, are reasonably likely to continue to aid and\n\n abet, violations of Section 17(a)(1) of the Securities Act, 15 U.S.C. § 77q(a)(1).\n\n COUNT IX\n\n Aiding and Abetting Violations of Section 17(a)(2) of the Securities Act\n\n 158. The Commission repeats and realleges Paragraphs 1 through 122 of its\n\n Complaint.\n\n (Against Spartan Securities and Eldred – Daniels Companies)\n\n 159. From at least as early as July 2010 through at least May 2014, Daniels, Fan, and\n\n Harrison, in the offer or sale of securities by the use of any means or instruments of\n\n transportation or communication in interstate commerce or by use of the mails, directly or\n\n indirectly, negligently obtained money or property by means of untrue statements of material\n\n facts or omissions to state material facts necessary to make the statements made, in light of the\n\n circumstances under which they were made, not misleading, and by reason of the foregoing,\n\n violated Section 17(a)(2) of the Securities Act, 15 U.S.C. § 77q(a)(2).\n\n 160. From at least as early as May 2011 through at least May 2014, Spartan\n\n Securities and Eldred knowingly or recklessly provided substantial assistance to Daniels, Fan,\n\n and Harrison’s violations of Section 17(a)(2) of the Securities Act, 15 U.S.C. § 77q(a)(2), and\n\n are deemed to be in violation of this provision to the same extent as Daniels, Fan, and Harrison.\n\n 52\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 202 of 211\n\n\n\n\n (Against Spartan Securities, Island Stock Transfer, and Dilley – Mirman/Rose\n Companies)\n\n 161. From at least as early as January 2009 through at least July 2014, Mirman and\n\n Rose, in the offer or sale of securities by the use of any means or instruments of transportation\n\n or communication in interstate commerce or by use of the mails, directly or indirectly,\n\n negligently obtained money or property by means of untrue statements of material facts or\n\n omissions to state material facts necessary to make the statements made, in light of the\n\n circumstances under which they were made, not misleading, and by reason of the foregoing,\n\n violated Section 17(a)(2) of the Securities Act, 15 U.S.C. § 77q(a)(2).\n\n 162. From at least as early as December 2009 through at least July 2014, Spartan\n\n Securities, Island Stock Transfer, and Dilley knowingly or recklessly provided substantial\n\n assistance to Mirman and Rose’s violations of Section 17(a)(2) of the Securities Act, 15 U.S.C.\n\n § 77q(a)(2), and are deemed to be in violation of this provision to the same extent as Mirman\n\n and Rose.\n\n 163. By reason of the foregoing, Spartan Securities, Island Stock Transfer, Dilley\n\n and Eldred aided and abetted and, unless enjoined, are reasonably likely to continue to aid and\n\n abet, violations of Section 17(a)(2) of the Securities Act, 15 U.S.C. § 77q(a)(2).\n\n COUNT X\n\n Aiding and Abetting Violations of Section 17(a)(3) of the Securities Act\n\n 164. The Commission repeats and realleges Paragraphs 1 through 122 of its\n\n Complaint.\n\n\n\n\n 53\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 203 of 211\n\n\n\n\n (Against Spartan Securities and Eldred – Daniels Companies)\n\n 165. From at least as early as July 2010 through at least August 2014, Daniels, Fan\n\n and Harrison, in the offer or sale of securities by the use of any means or instruments of\n\n transportation or communication in interstate commerce or by use of the mails, directly or\n\n indirectly, negligently engaged in transactions, practices and courses of business which\n\n operated or would have operated as a fraud or deceit upon the purchasers and prospective\n\n purchasers of such securities, and by reason of the foregoing, violated Section 17(a)(3) of the\n\n Securities Act, 15 U.S.C. § 77q(a)(3).\n\n 166. From at least as early as May 2011 through at least August 2014, Spartan\n\n Securities and Eldred knowingly or recklessly provided substantial assistance to Daniels, Fan\n\n and Harrison’s violations of Section 17(a)(3) of the Securities Act, 15 U.S.C. § 77q(a)(3), and\n\n are deemed to be in violation of this provision to the same extent as Daniels, Fan, and\n\n Harrison.\n\n (Against Spartan Securities, Island Stock Transfer, and Dilley – Mirman/Rose\n Companies)\n\n 167. From at least as early as January 2009 through at least July 2014, Mirman and\n\n Rose, in the offer or sale of any securities by the use of any means or instruments of\n\n transportation or communication in interstate commerce or by use of the mails, directly or\n\n indirectly, negligently engaged in transactions, practices and courses of business which\n\n operated or would have operated as a fraud or deceit upon the purchasers and prospective\n\n purchasers of such securities, and by reason of the foregoing, violated Section 17(a)(3) of the\n\n Securities Act, 15 U.S.C. § 77q(a)(3).\n\n\n 54\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 204 of 211\n\n\n\n\n 168. From at least as early as December 2009 through at least July 2014, Spartan\n\n Securities, Island Stock Transfer, and Dilley knowingly or recklessly provided substantial\n\n assistance to Mirman and Rose’s violations of Section 17(a)(3) of the Securities Act, 15\n\n U.S.C. § 77q(a)(3), and are deemed to be in violation of this provision to the same extent as\n\n Mirman and Rose.\n\n 169. By reason of the foregoing, Spartan Securities, Island Stock Transfer, Dilley\n\n and Eldred aided and abetted and, unless enjoined, are reasonably likely to continue to aid\n\n and abet, violations of Section 17(a)(3) of the Securities Act, 15 U.S.C. § 77q(a)(3).\n\n COUNT XI\n\n Aiding and Abetting Violations of\n Section 10(b) and Rule 10b-5(a) of the Exchange Act\n\n 170. The Commission repeats and realleges Paragraphs 1 through 122 of its\n\n Complaint.\n\n (Against Spartan Securities and Eldred – Daniels Companies)\n\n 171. From at least as early as July 2010 through at least May 2014, Daniels, Fan and\n\n Harrison, directly and indirectly, by use of any means or instrumentality of interstate\n\n commerce, or of the mails, knowingly or recklessly employed devices, schemes or artifices\n\n to defraud in connection with the purchase or sale of securities, and by reason of the foregoing,\n\n violated Section 10(b) and Rule 10b-5(a) of the Exchange Act, 15 U.S.C. § 78j(b) and 17\n\n C.F.R. § 240.10b-5(a).\n\n 172. From at least as early as May 2011 through at least May 2014, Spartan\n\n Securities and Eldred knowingly or recklessly provided substantial assistance to Daniels, Fan\n\n and Harrison’s violations of Section 10(b) and Rule 10b-5(a) of the Exchange Act, 15 U.S.C.\n 55\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 205 of 211\n\n\n\n\n § 78j(b) and 17 C.F.R. § 240.10b-5(a), and are deemed to be in violation of these provisions\n\n to the same extent as Daniels, Fan and Harrison.\n\n (Against Spartan Securities, Island Stock Transfer, and Dilley – Mirman/Rose\n Companies)\n\n 173. From at least as early as January 2009 through at least July 2014, Mirman and\n\n Rose, directly and indirectly, by use of any means or instrumentality of interstate commerce,\n\n or of the mails, knowingly or recklessly employed devices, schemes or artifices to defraud in\n\n connection with the purchase or sale of securities, and by reason of the foregoing, violated\n\n Section 10(b) and Rule 10b-5(a) of the Exchange Act, 15 U.S.C. § 78j(b) and 17 C.F.R. §\n\n 240.10b-5(a).\n\n 174. From at least as early as December 2009 through at least July 2014, Spartan\n\n Securities, Island Stock Transfer, and Dilley knowingly or recklessly provided substantial\n\n assistance to Mirman and Rose’s violations of Section 10(b) and Rule 10b-5(a) of the\n\n Exchange Act, 15 U.S.C. § 78j(b) and 17 C.F.R. § 240.10b-5(a), and are deemed to be in\n\n violation of these provisions to the same extent as Mirman and Rose.\n\n 175. By reason of the foregoing, Spartan Securities, Island Stock Transfer, Dilley\n\n and Eldred aided and abetted and, unless enjoined, are reasonably likely to continue to aid\n\n and abet, violations of Section 10(b) and Rule 10b-5(a) of the Exchange Act, 15 U.S.C. §\n\n 78j(b) and 17 C.F.R. § 240.10b-5(a).\n\n\n\n\n 56\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 206 of 211\n\n\n\n\n COUNT XII\n\n Aiding and Abetting Violations of\n Section 10(b) and Rule 10b-5(b) of the Exchange Act\n\n 176. The Commission repeats and realleges Paragraphs 1 through 122 of its\n\n Complaint.\n\n (Against Spartan Securities and Eldred – Daniels Companies)\n\n 177. From at least as early as July 2010 through at least May 2014, Daniels, Fan and\n\n Harrison, directly and indirectly, by use of any means or instrumentality of interstate\n\n commerce, or of the mails, knowingly or recklessly made untrue statements of material facts\n\n and omitted to state material facts necessary in order to make the statements made, in light of\n\n the circumstances under which they were made, not misleading in connection with the\n\n purchase or sale of securities, and by reason of the foregoing, violated Section 10(b) and Rule\n\n 10b-5(b) of the Exchange Act, 15 U.S.C. § 78j(b) and 17 C.F.R. § 240.10b-5(b).\n\n 178. From at least as early as May 2011 through at least May 2014, Spartan\n\n Securities and Eldred knowingly or recklessly provided substantial assistance to Daniels, Fan\n\n and Harrison’s violations of Section 10(b) and Rule 10b-5(b) of the Exchange Act, 15 U.S.C.\n\n § 78j(b), and 17 C.F.R. § 240.10b-5(b), and are deemed to be in violation of these provisions\n\n to the same extent as Daniels, Fan and Harrison.\n\n (Against Spartan Securities, Island Stock Transfer, and Dilley – Mirman/Rose\n Companies)\n\n 179. From at least as early as January 2009 through at least July 2014, Mirman and\n\n Rose directly and indirectly, by use of any means or instrumentality of interstate commerce,\n\n or of the mails, knowingly or recklessly made untrue statements of material facts and omitted\n\n 57\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 207 of 211\n\n\n\n\n to state material facts necessary in order to make the statements made, in light of the\n\n circumstances under which they were made, not misleading in connection with the purchase\n\n or sale of securities, and by reason of the foregoing, violated Section 10(b) and Rule 10b-5(b)\n\n of the Exchange Act, 15 U.S.C. § 78j(b) and 17 C.F.R. § 240.10b-5(b).\n\n 180. From at least as early as December 2009 through at least July 2014, Spartan\n\n Securities, Island Stock Transfer, and Dilley knowingly or recklessly provided substantial\n\n assistance to Mirman and Rose’s violations of Section 10(b) and Rule 10b-5(b) of the\n\n Exchange Act, 15 U.S.C. § 78j(b) and 17 C.F.R. § 240.10b-5(b), and are deemed to be in\n\n violation of these provisions to the same extent as Mirman and Rose.\n\n 181. By reason of the foregoing, Spartan Securities, Island Stock Transfer, Dilley\n\n and Eldred aided and abetted and, unless enjoined, are reasonably likely to continue to aid\n\n and abet, violations of Section 10(b) and Rule 10b-5(b) of the Exchange Act, 15 U.S.C. §\n\n 78j(b) and 17 C.F.R. § 240.10b-5(b).\n\n COUNT XIII\n\n Aiding and Abetting Violations of\n Section 10(b) and Rule 10b-5(c) of the Exchange Act\n\n 182. The Commission repeats and realleges Paragraphs 1 through 122 of its\n\n Complaint.\n\n (Against Spartan Securities and Eldred – Daniels Companies)\n\n 183. From at least as early as July 2010 through at least May 2014, Daniels, Fan and\n\n Harrison, directly and indirectly, by use of any means or instrumentality of interstate\n\n commerce, or of the mails, knowingly or recklessly engaged in acts, practices and courses of\n\n business which operated or would have operated as a fraud or deceit upon any person in\n 58\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 208 of 211\n\n\n\n\n connection with the purchase or sale of securities, and by reason of the foregoing, violated\n\n Section 10(b) and Rule 10b-5(c) of the Exchange Act, 15 U.S.C. § 78j(b) and 17 C.F.R. §\n\n 240.10b-5(c).\n\n 184. From at least as early as May 2011 through at least May 2014], Spartan\n\n Securities and Eldred knowingly or recklessly provided substantial assistance to Daniels, Fan\n\n and Harrison’s violations of Section 10(b) and Rule 10b-5(c) of the Exchange Act, 15 U.S.C.\n\n § 78j(b) and 17 C.F.R. § 240.10b-5(c), and are deemed to be in violation of these provisions\n\n to the same extent as Daniels, Fan and Harrison.\n\n (Against Spartan Securities, Island Stock Transfer, and Dilley – Mirman/Rose\n Companies)\n\n 185. From at least as early as January 2009 through at least July 2014, Mirman and\n\n Rose, directly and indirectly, by use of any means or instrumentality of interstate commerce,\n\n or of the mails, knowingly or recklessly engaged in acts, practices and courses of business\n\n which operated or would have operated as a fraud or deceit upon any person in connection\n\n with the purchase or sale of securities, and by reason of the foregoing, violated Section 10(b)\n\n and Rule 10b-5(c) of the Exchange Act, 15 U.S.C. § 78j(b) and 17 C.F.R. § 240.10b-5(c).\n\n 186. From at least as early as December 2009 through at least July 2014], Spartan\n\n Securities, Island Stock Transfer, and Dilley knowingly or recklessly provided substantial\n\n assistance to Mirman and Rose’s violations of Section 10(b) and Rule 10b-5(c) of the\n\n Exchange Act, 15 U.S.C. § 78j(b) and 17 C.F.R. § 240.10b-5(c), and are deemed to be in\n\n violation of these provisions to the same extent as Mirman and Rose.\n\n 187. By reason of the foregoing, Spartan Securities, Island Stock Transfer, Dilley\n\n and Eldred aided and abetted and, unless enjoined, are reasonably likely to continue to aid and\n 59\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 209 of 211\n\n\n\n\n abet, violations of Section 10(b) and Rule 10b-5(c) of the Exchange Act, 15 U.S.C. § 78j(b)\n\n and 17 C.F.R. § 240.10b-5(c).\n\n COUNT XIV\n\n Violations of Sections 5(a) and 5(c) of the Securities Act\n\n (Against Spartan Securities, Island Stock Transfer, and Dilley)\n\n 188. The Commission repeats and realleges Paragraphs 1 through 122 of its\n\n Complaint.\n\n 189. From at least as early as December 2009 until at least July 2014, Spartan\n\n Securities, Island Stock Transfer and Dilley, directly or indirectly, have made use of the means\n\n or instruments of transportation or communication in interstate commerce or of the mails to\n\n sell securities, when no registration statement was in effect with the Commission as to such\n\n securities, and have made use of the means or instruments of transportation or communication\n\n in interstate commerce or of the mails to offer to sell such securities when no registration\n\n statement had been filed with the Commission as to such securities.\n\n 190. There were no applicable exemptions from registration.\n\n 191. By reason of the foregoing, Spartan Securities, Island Stock Transfer and Dilley\n\n violated, and unless enjoined, are reasonably likely to continue to violate Sections 5(a) and\n\n 5(c) of the Securities Act, 15 U.S.C. § 77e(a), (c).\n\n\n RELIEF REQUESTED\n\n WHEREFORE, the Commission respectfully requests the Court find the Defendants\n\n committed the violations alleged, and:\n\n\n 60\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 210 of 211\n\n\n\n\n I.\n\n Permanent Injunction\n\n Issue a Permanent Injunction restraining and enjoining Defendants, their officers,\n\n agents, servants, employees, attorneys, and all persons in active concert or participation with\n\n them, and each of them, from violating the federal securities laws alleged in this Complaint.\n\n II.\n\n Disgorgement\n\n Issue an Order directing Island Stock Transfer to disgorge ill-gotten gains received\n\n within the applicable statute of limitations (including the time during which the statute of\n\n limitations was tolled by agreement with Island Stock Transfer), including prejudgment\n\n interest, resulting from the acts or courses of conduct alleged in this Complaint.\n\n III.\n\n Penalties\n\n Issue an Order directing Defendants to pay civil money penalties pursuant to Section\n\n 20(d) of the Securities Act, 15 U.S.C. § 77t(d), and Section 21(d) of the Exchange Act, 15\n\n U.S.C. § 78u(d).\n\n IV.\n\n Penny Stock Bar\n\n Issue an Order, pursuant to Section 20(g) of the Securities Act, 15 U.S.C. § 77t(g), and\n\n Section 21(d)(6) of the Exchange Act, 15 U.S.C. § 78u(d)(6), barring Spartan Securities,\n\n Dilley, Eldred and Lopez from participating in any future offering of a penny stock.\n\n\n\n\n 61\n\nUSCA11 Case: 22-13129 Document: 88-1 Date Filed: 01/16/2026 Page: 211 of 211\n\n\n\n\n V.\n\n Further Relief\n\n Grant such other and further relief as may be necessary and appropriate.\n\n VI.\n\n Retention of Jurisdiction\n\n Further, the Commission respectfully requests that the Court retain jurisdiction over\n\n this action and over Defendants in order to implement and carry out the terms of all orders and\n\n decrees that may hereby be entered, or to entertain any suitable application or motion by the\n\n Commission for additional relief within the jurisdiction of this Court.\n\n Dated: February 20, 2019 By:s/Wilfredo Fernandez\n Wilfredo Fernandez\n Senior Trial Counsel\n Fla. Bar No. 142859\n Telephone: (305) 982-6376\n Facsimile: (305) 536-4154\n E-mail: fernandezw@sec.gov\n\n Christine Nestor\n Senior Trial Counsel\n Fla. Bar No. 597211\n Telephone: (305) 982-6367\n Facsimile: (305) 536-4154\n E-mail: nestorc@sec.gov\n\n ATTORNEYS FOR PLAINTIFF\n SECURITIES AND EXCHANGE COMMISSION\n 801 Brickell Avenue, Suite 1800\n Miami, Florida 33131\n Telephone: (305) 982-6300\n\n\n\n\n 62", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11242127/", "author_raw": "TJOFLAT, Circuit Judge, dissenting"}]}	BRANCH	LUCK	TJOFLAT	1		{"BRANCH": ", Circuit", "LUCK": ", Circuit", "TJOFLAT": ", Circuit"}	3	2	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10775540/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,773,764	Maryland Office of People's Counsel v. FERC	2026-01-13	24-1353	U.S. Court of Appeals for the District of Columbia Circuit	{"judges": "Before: HENDERSON, PILLARD and GARCIA, Circuit Judges.", "parties": "", "opinions": [{"author": "Opinion for the Court filed by Circuit Judge HENDERSON", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued November 17, 2025 Decided January 13, 2026\n\n No. 24-1353\n\n MARYLAND OFFICE OF PEOPLE’S COUNSEL, ET AL.,\n PETITIONERS\n\n v.\n\n FEDERAL ENERGY REGULATORY COMMISSION,\n RESPONDENT\n\n PJM INTERCONNECTION, L.L.C., ET AL.,\n INTERVENORS\n\n\n On Petition for Review of Orders of the\n Federal Energy Regulatory Commission\n\n\n\n Jeffrey A. Schwarz argued the cause for petitioners. With\nhim on the briefs were David S. Lapp, William F. Fields, Scott\nH. Strauss, Peter J. Hopkins, Lauren L. Springett, John\nMcCaffrey, Timothy G. McCormick, Christian F. Tucker,\nRobert A. Weishaar, Jr., Adrienne E. Clair, Gerit F. Hull,\nThomas L. Rudebusch, Bhaveeta K. Mody, Miles H. Mitchell,\nand Ransom E. Ted Davis.\n\n Jason T. Perkins, Attorney, Federal Energy Regulatory\nCommission, argued the cause for respondent. With him on\n\f 2\nthe brief were David L. Morenoff, Acting General Counsel, and\nRobert H. Solomon, Solicitor.\n\n Paul W. Hughes argued the cause for intervenors in\nsupport of respondent. With him on the brief were Steffen N.\nJohnson, Nicholas M. Gladd, Kelsey C. Catina, David G.\nTewksbury, Andrew A. Lyons-Berg, Connor J. Suozzo, Ryan J.\nCollins, Christopher C. O’Hara, Zachary C. Schauf, Zachary\nB. Cohen, and Arjun R. Ramamurti. Vivian W. Chum entered\nan appearance.\n\n Before: HENDERSON, PILLARD and GARCIA, Circuit\nJudges.\n\n Opinion for the Court filed by Circuit Judge HENDERSON.\n\n KAREN LECRAFT HENDERSON, Circuit Judge: PJM\nInterconnection, LLC (PJM) asked the Federal Energy\nRegulatory Commission (FERC) for permission to amend its\ntariff under section 205 of the Federal Power Act (FPA) before\nit finalized a capacity auction that was set to saddle consumers\nwith hundreds of millions of dollars in inflated electricity\nprices. FERC approved PJM’s request, but the United States\nCourt of Appeals for the Third Circuit vacated that decision,\nreasoning that the tariff amendment violated the filed-rate\ndoctrine. PJM Power Providers Grp. v. FERC, 96 F.4th 390,\n399–402 (3d Cir. 2024). FERC complied with the Third\nCircuit’s mandate and directed PJM to complete the auction\nusing the unamended version of its tariff. PJM obliged and, as\nexpected, rates soared. State agencies, PJM customers and\nprivate entities representing the customers’ interests filed a\ncomplaint under section 206 of the FPA, asking FERC to\nmodify the auction result. FERC declined, reasoning that the\nThird Circuit’s decision tied its hands. Unsatisfied with\n\f 3\nFERC’s explanation, the complainants have petitioned this\nCourt for review.\n\n There may have been a sound basis for FERC to deny\nrelief. But the only reason it articulated—that the Third Circuit\nresolved the matter—was anything but sound. The Third\nCircuit held that the filed-rate doctrine foreclosed FERC’s\nefforts to modify PJM’s rate-setting process under section 205\nof the FPA. But it never addressed whether the auction result\nis subject to revision under section 206. FERC’s conclusion to\nthe contrary was erroneous. We therefore grant the petition for\nreview.\n\n I. Legal and Factual Background\n\n The filed-rate doctrine prohibits regulated entities from\ncharging rates “other than those properly filed with the\nappropriate federal regulatory authority,” Ark. La. Gas Co. v.\nHall, 453 U.S. 571, 577 (1981), and permits those rates to be\nchanged “only prospectively,” Okla. Gas & Elec. Co. v. FERC,\n11 F.4th 821, 829 (D.C. Cir. 2021). 1 The doctrine has long\nprovided “necessary predictability” in our Nation’s electricity\n\n\n\n\n 1\n Some of our decisions have attributed the prohibition on\nretroactive rate modifications to the filed-rate doctrine’s “corollary,”\nthe rule against retroactive ratemaking. OXY USA, Inc. v. FERC, 64\nF.3d 679, 699 (D.C. Cir. 1995); see Associated Gas Distribs. v.\nFERC, 898 F.2d 809, 810 (D.C. Cir. 1990) (Williams, J., concurring\nin denial of rehearing and rehearing en banc) (“We have not always\nclearly distinguished between the filed rate doctrine and the\nretroactive ratemaking doctrine, doubtless because they often\noverlap.”).\n\f 4\nmarkets. Elec. Dist. No. 1 v. FERC, 774 F.2d 490, 493 (D.C.\nCir. 1985).\n\n The “contours” of the filed-rate doctrine have historically\nbeen drawn by the judiciary. Ark. La. Gas Co., 453 U.S. at 599\n(Stevens, J., dissenting); see generally Gustavus H. Robinson,\nThe Filed Rate in Public Utility Law: A Study in Mechanical\nJurisprudence, 77 U. Pa. L. Rev. 213 (1928). But the doctrine\nhas always been “statutorily grounded.” Columbia Gas\nTransmission Corp. v. FERC, 895 F.2d 791, 795 (D.C. Cir.\n1990). The earliest decisions articulating the filed-rate doctrine\nrested on interpretations of the Interstate Commerce Act of\n1887. See, e.g., Pa. R.R. Co. v. Int’l Coal Mining Co., 230 U.S.\n184, 196–97 (1913). Over time, the doctrine found footing in\nother statutes and expanded “across the spectrum of regulated\nutilities.” Ark. La. Gas Co., 453 U.S. at 577. In the context of\nFERC’s regulation of electricity markets, the filed-rate doctrine\nprimarily “rests on two provisions” of the FPA: section 205 and\nsection 206, 16 U.S.C. §§ 824d, 824e. Towns of Concord,\nNorwood & Wellesley v. FERC, 955 F.2d 67, 71–72 (D.C. Cir.\n1992).\n\n Section 205 and section 206 are “related but distinct.”\nFirstEnergy Serv. Co. v. FERC, 758 F.3d 346, 348 (D.C. Cir.\n2014). Both require that the rates charged by utilities subject to\nFERC’s jurisdiction be just and reasonable. Kan. Gas & Elec.\nCo. v. FERC, 758 F.2d 713, 716 (D.C. Cir. 1985). But they\nenforce that mandate differently. Section 205 requires\nregulated entities to file their rates with FERC and thus\nprimarily involves “newly filed rates.” Papago Tribal Util.\nAuth. v. FERC, 723 F.2d 950, 956 (D.C. Cir. 1983). Section\n206, on the other hand, focuses on “existing rates,”\nempowering FERC to modify those that it deems unjust or\nunreasonable. FirstEnergy Serv. Co., 758 F.3d at 348. All told,\nFERC’s role under section 206 is “more active” than the\n\f 5\n“essentially passive and reactive” role contemplated by section\n205. City of Winnfield v. FERC, 744 F.2d 871, 876 (D.C. Cir.\n1984).\n\n FERC oversees Regional Transmission Organizations\n(RTOs), which “are independent organizations that manage the\ntransmission of electricity over the electric grid and ensure\nelectricity is reliably available for consumers.” Advanced\nEnergy Mgmt. All. v. FERC, 860 F.3d 656, 659 (D.C. Cir.\n2017) (per curiam). RTOs fulfill their responsibilities by\ncarrying out “several functions.” Citadel FNGE Ltd. v. FERC,\n77 F.4th 842, 848 (D.C. Cir. 2023). One such function is\nprocuring capacity, which “is not electricity itself but the\nability to produce it when necessary.” Conn. Dep’t of Pub. Util.\nControl v. FERC, 569 F.3d 477, 479 (D.C. Cir. 2009).\n\n PJM is an RTO that manages the transmission of\nelectricity in “all or parts of thirteen Mid-Atlantic and\nMidwestern states and the District of Columbia.” Advanced\nEnergy Mgmt. All., 860 F.3d at 659. 2 It procures capacity by\nconducting auctions “years in advance of when the capacity\noffered at the auction will be needed.” N.J. Bd. of Pub. Utils. v.\nFERC, 744 F.3d 74, 84 (3d Cir. 2014). The results of PJM’s\ncapacity auctions have a direct effect on the prices that\ndownstream consumers pay for electricity. See Hughes v. Talen\nEnergy Mktg., LLC, 578 U.S. 150, 159 (2016). In other words,\nwhen PJM pays more for capacity, consumers pay more for\nelectricity.\n\n PJM’s Open Access Transmission Tariff (Tariff)\n“provides a detailed roadmap” of how PJM’s capacity auctions\nmust be conducted. PJM Power Providers Grp., 96 F.4th at\n\n 2\n PJM takes its name from Pennsylvania, New Jersey and\nMaryland: “the first three states in which it operated.” Long Island\nPower Auth. v. FERC, 27 F.4th 705, 709 (D.C. Cir. 2022).\n\f 6\n395. The Tariff requires PJM to calculate and publish various\n“parameters, or inputs,” it intends to use in each auction. Id.\nOne of those parameters is the Locational Delivery Area\nReliability Requirement (LDA Reliability Requirement),\nwhich represents “the amount of capacity that must be\nproduced to meet peak demand” in a particular PJM zone. Del.\nDiv. of the Pub. Advoc. v. FERC, 3 F.4th 461, 463–64 (D.C.\nCir. 2021).\n\n After PJM publishes the auction parameters, capacity\nsuppliers review that information and decide whether to submit\na bid. PJM Power Providers Grp., 96 F.4th at 395. At the\nconclusion of the bidding period, PJM runs an algorithm that\ndetermines which bids to accept. Id. PJM begins by accepting\nthe lowest-priced bid and repeats that process until it secures\nsufficient capacity. Id. The price of the final accepted bid\nconstitutes the clearing price, and all suppliers whose bids are\naccepted are paid that price. Hughes, 578 U.S. at 156. 3 If PJM\nfails to secure sufficient capacity and there is no natural\nclearing price, the auction clears at a predetermined price cap.\n\n This case involves PJM’s 2024/2025 capacity auction.\nThat auction “proceeded smoothly at first.” PJM Power\nProviders Grp., 96 F.4th at 396. More recent developments\nhave been anything but smooth. In August 2022, PJM posted\nparameters for the 2024/2025 auction and gave suppliers more\nthan three months to decide whether to bid. Shortly after\nbidding closed, PJM noticed an issue pertaining to the\nDelmarva Power & Light Company South Zone (DPL South\nZone), a subsection of the DPL Pricing Zone that consists of\n\n 3\n See Hughes, 578 U.S. at 156 n.1 (“[I]f four power plants bid\nto sell capacity at, respectively, $10/unit, $20/unit, $30/unit, and\n$40/unit, and the first three plants provide enough capacity to satisfy\nprojected demand, PJM will purchase capacity only from those three\nplants, each of which will receive $30/unit, the clearing price.”).\n\f 7\nparts of Delaware, Maryland and Virginia. The DPL South\nZone’s LDA Reliability Requirement rested on PJM’s belief\nthat certain suppliers would participate in the auction, but that\nprediction proved to be wrong. As a result, the LDA Reliability\nRequirement reflected a need for substantially more capacity\nthan the DPL South Zone in fact needed. 4 If left unaddressed,\nthis mismatch would inflate the clearing price and likely lead\nto more than $100 million in excess capacity charges.\n\n Seeking to avoid an anomalous (and expensive) outcome,\nPJM requested relief under section 205 and section 206 of the\nFPA. Both filings sought FERC’s approval of a tariff\namendment that would authorize PJM to modify the LDA\nReliability Requirement before finalizing the auction. In\nFebruary 2023, FERC approved PJM’s request to amend its\nTariff under section 205 and denied its section 206 filing as\nmoot. PJM quickly amended its Tariff, revised the LDA\nReliability Requirement and completed the auction. Capacity\nsuppliers that would have benefitted from a higher clearing\nprice challenged FERC’s approval of PJM’s tariff amendment.\nThe Third Circuit granted their petition, reasoning that the tariff\namendment operated retroactively in violation of the filed-rate\ndoctrine. PJM Power Providers Grp., 96 F.4th at 401.\n\n The Third Circuit started with the premise that the\nfiled-rate doctrine permits only prospective rate changes. Id. at\n394. It then looked to Landgraf v. USI Film Products, 511 U.S.\n244 (1994), and subsequent decisions applying it, to establish\n\n 4\n Specifically, PJM had predicted that certain “large power\nplants and solar facilities” would participate in the auction. PJM\nPower Providers Grp., 96 F.4th at 396 n.3. PJM considered these to\nbe “relatively unreliable sources of power,” so it factored in a need\nfor a “correspondingly large amount” of backup capacity. Id. When\nthose suppliers declined to participate in the auction, the additional\nbackup capacity became unnecessary. See id.\n\f 8\na definition of retroactivity. PJM Power Providers Grp., 96\nF.4th at 398. Relying on those cases, it reasoned that an action\nis retroactive if it “alter[s] the legal consequence[s] attached to\na past action,” id. at 399, and defined the “relevant inquiry” as\nwhether PJM’s “Tariff Amendment alter[ed] the legal\nconsequences attached to past actions,” id. at 400. The Third\nCircuit held that it was retroactive to change the LDA\nReliability Requirement mid-auction because the Tariff\nrequired that parameter to be “calculate[d]” and “post[ed]”\n“prior to conducting the Auction and then use[d] . . . in the\nAuction.” Id. at 399. The “legal consequence” that the Third\nCircuit held FERC altered was the Tariff’s requirement “to\nuse [the LDA Reliability Requirement] in the Auction.” Id. at\n400. Thus, in the Third Circuit’s view, the tariff amendment\nwas “retroactive, and FERC violated the filed rate doctrine by\napproving it.” Id. at 401. The Third Circuit therefore vacated\nthe portion of FERC’s orders permitting the tariff amendment\nto apply to PJM’s 2024/2025 auction. Id. at 402.\n\n Shortly after the Third Circuit issued its mandate, PJM\npetitioned FERC for confirmation that it should re-run the\nauction using the initial LDA Reliability Requirement. A group\nconsisting of agencies in the Maryland and Delaware state\ngovernments, PJM customers and private entities representing\nthe customers’ interests (collectively, the DPL Customers)\nprotested the petition. FERC sided with PJM and instructed it\nto re-run the auction as if its Tariff had not been amended. PJM\nre-ran the auction and was unable to secure enough capacity for\nthe auction to clear naturally, causing it to clear at the\npredetermined price cap. Compared to the earlier iteration of\nthe auction, PJM spent an additional $182.8 million to procure\njust 1.9 per cent more capacity.\n\n While the DPL Customers were protesting PJM’s petition,\nthey also filed a complaint under section 206 of the FPA\n\f 9\n(Complaint). The Complaint asked FERC to declare the re-run\n“auction results . . . unjust and unreasonable” and “replace\nthem” with the “efficient market outcome” that prevailed at the\noriginal auction. App. at 3. FERC denied the Complaint,\nreasoning that it could not reach an “outcome that would be\ninconsistent with the Third Circuit’s ruling.” PJM Load Parties\nv. PJM Interconnection, LLC, Order Denying Complaint, 188\nFERC ¶ 61,020, P 21 (2024). FERC elaborated on its views in\na subsequent order denying rehearing, contending that it was\npowerless to grant relief that would fail “the Third Circuit’s test\nfor retroactivity” and “lead to an outcome inconsistent with the\nThird Circuit’s ruling.” PJM Load Parties v. PJM\nInterconnection, LLC, Order Addressing Arguments Raised on\nRehearing, 189 FERC ¶ 61,199, P 12 (2024). Dissatisfied with\nFERC’s denial of their Complaint, the DPL Customers\npetitioned this Court for review. PJM has since intervened in\nsupport of FERC, as have several capacity suppliers and their\ntrade association.\n\n II. Analysis\n\n We have jurisdiction under 16 U.S.C. § 825l(b). We\nordinarily review FERC’s orders under the Administrative\nProcedure Act’s arbitrary and capricious standard. See Mo.\nRiver Energy Servs. v. FERC, 918 F.3d 954, 957 (D.C. Cir.\n2019). But FERC’s denial of the Complaint rested entirely on\nits interpretation of the Third Circuit’s decision. And we\n“give[] no deference to an agency’s interpretation of judicial\nprecedent.” SFPP, L.P. v. FERC, 967 F.3d 788, 795 (D.C. Cir.\n2020) (per curiam). “We therefore are not limited to, and do\nnot employ, the deferential arbitrary and capricious standard.”\nCity of Ukiah v. FERC, 729 F.2d 793, 796 (D.C. Cir. 1984).\nInstead, our review is de novo. See Ass’n of Civilian\nTechnicians v. FLRA, 353 F.3d 46, 50 (D.C. Cir. 2004).\n\f 10\n The Third Circuit was presented with a discrete legal\nquestion: whether FERC acted lawfully when it used its section\n205 authority to modify the process PJM uses to procure\ncapacity. It answered that question in the negative, reasoning\nthat FERC’s orders approving PJM’s tariff amendment were\nretroactive as applied to the 2024/2025 auction and therefore\nviolated the filed-rate doctrine. PJM Power Providers Grp., 96\nF.4th at 402. The Third Circuit was simply not presented with,\nnor did it answer, the question of whether a subsequent use of\nFERC’s section 206 authority to modify the resulting auction\nprice would be retroactive, much less impermissible.\n\n We recognize that courts sometimes answer questions\nimplicitly. But the “important differences” between section 205\nand section 206 make it impossible to predict how the Third\nCircuit would have resolved a challenge to FERC’s\nmodification of PJM’s auction-set capacity price under section\n206. Ala. Power Co. v. FERC, 993 F.2d 1557, 1571 (D.C. Cir.\n1993). Indeed, when the capacity suppliers argued that the\ntariff amendment was impermissibly retroactive “because it\nallowed PJM to disregard the Auction results,” the Third\nCircuit expressly declined to take up that argument. PJM\nPower Providers Grp., 96 F.4th at 401 n.8. And even if the\nThird Circuit had telegraphed how it would resolve a section\n206 challenge to the auction results, FERC would not be bound\nby its telegraph. Federal courts are powerless to answer\n“hypothetical questions.” FBI v. Fikre, 601 U.S. 234, 241\n(2024). And when the Third Circuit issued its decision, the\nDPL Customers had not yet filed their Complaint. The current\ncontroversy had simply not yet materialized.\n\n Because the Third Circuit did not answer the different\nlegal questions raised by the DPL Customers’ Complaint—and\ncould not have done so even if it had wanted to—we have little\ndifficulty concluding that the Third Circuit’s decision did not\n\f 11\nmandate the Complaint’s denial. FERC resists this conclusion,\nbut its arguments lack force.\n\n FERC contends that, under the Third Circuit’s reasoning,\nany modification to PJM’s auction-set capacity price would be\nretroactive. Even were that true, “agencies rely on . . . dictum\nat their own risk.” Alaska Dep’t of Env’t Conservation v. EPA,\n540 U.S. 461, 514 (2004) (Kennedy, J., dissenting). And they\nare not bound by their hypotheses about how a court might\nhave ruled on questions that were never presented or answered.\n\n More fundamentally, FERC’s argument wrongly assumes\nthat the filed-rate doctrine categorically bars all\nbackward-looking rate modifications. No doubt, the filed-rate\ndoctrine generally forbids the retroactive modification of rates.\nOkla. Gas & Elec. Co., 11 F.4th at 829. But that is only a\ndefault rule because the doctrine does not operate\nindependently of the “interconnected statutory” provisions that\nundergird it. Id.; see E. Tex. Elec. Coop., Inc. v. FERC, 90 F.4th\n579, 589 n.7 (D.C. Cir. 2024). If a filed rate is “changed in [a]\nmanner provided by the [Federal Power] Act,” the earlier rate\nis no longer “binding upon the seller and the purchaser.” Nw.\nPub. Serv. Co. v. Montana-Dakota Utils. Co., 181 F.2d 19, 22\n(8th Cir. 1950), aff’d, 341 U.S. 246 (1951). That is no less true\nof retroactive rate changes.\n\n Consider section 206(b), which directs FERC to establish\na “refund effective date” upon the commencement of a section\n206 proceeding. 16 U.S.C. § 824e(b). If FERC eventually finds\nthat the rate being charged is not just and reasonable, it may\nprovide refunds for “amounts paid,” during the pendency of the\nsection 206 proceeding, “in excess of those which would have\nbeen paid under the just and reasonable rate.” Id. When FERC\nexercises this authority, it permissibly effectuates what might\nbe thought of as “retroactive . . . rate decreases.” City of\n\f 12\nAnaheim v. FERC, 558 F.3d 521, 524 (D.C. Cir. 2009); cf.\nVerso Corp. v. FERC, 898 F.3d 1, 10 (D.C. Cir. 2018)\n(explaining that section 206(b) does not endow FERC with\n“concomitant authority . . . to retroactively correct rates that\nwere too low”). If the filed-rate doctrine operated as a\ncategorical bar to all “retroactive” rate modifications, section\n206(b) would be a dead letter. But, by concluding otherwise,\nwe have given effect to the Congress’s command, recognizing\nsection 206(b) for what it is: “a narrow exception” to the\nfiled-rate doctrine’s general prohibition of retroactive rate\nmodifications. Exxon Mobil Corp. v. FERC, 571 F.3d 1208,\n1211 (D.C. Cir. 2009); see E. Tenn. Nat. Gas Co. v. FERC, 863\nF.2d 932, 942 (D.C. Cir. 1988) (explaining that an analogous\nrefund provision in the Natural Gas Act is a “statutory\nexception to the rule prohibiting retroactive rate changes”). We\ndo not mean to suggest that the DPL Customers are necessarily\nentitled to a refund under section 206(b). 5 We hold only that\nlabeling the relief they seek as “retroactive” should not\nforeclose the possibility that it is available under section 206.\n\n FERC also contends that it could not “render the Third\nCircuit’s judgment economically meaningless,” FERC Br. at\n28, because that court “expected” its decision to have certain\n“economic effects,” id. at 36. We disagree. To start, we do not\nshare FERC’s certainty about the effects the Third Circuit\nexpected its decision to have. That court said only that its\napplication of the filed-rate doctrine “could potentially produce\na harsh result.” PJM Power Providers Grp., 396 F.4th at 401\n(emphasis added). That could be read to suggest that the Third\nCircuit was aware that FERC had not yet exhausted all the tools\nin its regulatory arsenal. Additionally, and more importantly,\neven if the Third Circuit did expect its decision to have certain\n\n 5\n We leave that matter to FERC for resolution in the first\ninstance. Cf. City of Anaheim, 558 F.3d at 525.\n\f 13\neconomic effects, that expectation would have been irrelevant.\nThe Third Circuit is a court, “not an economic regulator.”\nReply Br. at 8. And when a court finds that an “agency based\nits decision upon an improper legal ground,” the agency “might\nlater . . . reach the same” or a similar “result for a different\nreason.” FEC v. Akins, 524 U.S. 11, 25 (1998). Nothing\nrequired FERC to adopt a use-it-or-lose-it approach when\nconsidering the different ways it might address the problems\ncaused by PJM’s forecasting error. And we decline to impose\nsuch a requirement without a statutory basis.\n\n The Third Circuit’s decision rejecting FERC’s efforts to\nmodify PJM’s auction process under section 205 simply did not\nresolve whether FERC might later use its section 206 authority\nto set aside the auction result. In reaching a different\nconclusion, FERC committed legal error.\n\n * * *\n\n For the foregoing reasons, the petition for review is\ngranted. We vacate FERC’s orders denying the Complaint and\nremand the case to FERC for further proceedings.\n\n So ordered.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11240349/", "author_raw": "Opinion for the Court filed by Circuit Judge HENDERSON"}]}	HENDERSON	PILLARD	GARCIA	1		{"HENDERSON": ", Circuit", "PILLARD": ", Circuit", "GARCIA": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10773764/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,773,765	CenturyTel of Montana, Inc. v. NLRB	2026-01-13	24-1346	U.S. Court of Appeals for the District of Columbia Circuit	{"judges": "Before: PAN and GARCIA, Circuit Judges, and ROGERS, Senior Circuit Judge.", "parties": "", "opinions": [{"type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued September 15, 2025 Decided January 13, 2026\n\n No. 24-1346\n\n CENTURYTEL OF MONTANA, INC., A SUBSIDIARY OF LUMEN\n TECHNOLOGIES, INC.,\n PETITIONER\n\n v.\n\n NATIONAL LABOR RELATIONS BOARD,\n RESPONDENT\n\n INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS\n LOCAL UNION 768,\n INTERVENOR\n\n\n\n Consolidated with 24-1352\n\n\n On Petition for Review and Cross-Application\n for Enforcement of an Order\n of the National Labor Relations Board\n\n\n\n Patrick R. Scully argued the cause for petitioner. With him\non the briefs was Monica J. Frascona.\n\f 2\n\n Jared D. Cantor, Senior Attorney, National Labor\nRelations Board, argued the cause for respondent. With him\non the brief were William B. Cowen, Acting General Counsel,\nRuth E. Burdick, Deputy Associate General Counsel, Meredith\nJason, Assistant General Counsel, and Usha Dheenan,\nSupervisory Attorney.\n\n Jacob J. Demree argued the cause for intervenor in support\nof respondent. With him on the brief was Jonathan D.\nNewman.\n\n Before: PAN and GARCIA, Circuit Judges, and ROGERS,\nSenior Circuit Judge.\n\n Opinion for the Court by Senior Circuit Judge ROGERS.\n\n ROGERS, Senior Circuit Judge: The National Labor\nRelations Board ruled that CenturyTel of Montana, Inc.,\nviolated Sections 8(a)(5) and (1) of the National Labor\nRelations Act (“the Act”), 29 U.S.C. § 158(a)(5), (1), by failing\nto furnish information requested by the International\nBrotherhood of Electrical Workers, Local Union 768 (“the\nUnion”) on non-union technicians working within the Union’s\njurisdiction. CenturyTel petitions for review on several\ngrounds, in an attempt to show that the Board’s decision was\nnot supported by substantial evidence. For the following\nreasons, the court denies the petition and grants the Board’s\ncross-application for enforcement of its order.\n\n I.\n\n CenturyTel provides telephone and data services as a\nsubsidiary of Lumen Technologies, Inc., a national\ntelecommunications company. It has had a collective\n\f 3\nbargaining agreement (“CBA”) with the Union for decades.\nThe Union represents employees in northwest Montana who\nperform installation, maintenance, and repair work for\nbusinesses and residences. Among the attachments to the\noperative CBA is a letter of understanding on crossing\njurisdictional boundaries, which states that CenturyTel “may\nhave employees from other bargaining units work within this\nbargaining unit’s jurisdiction only when no employees from\nthis bargaining unit are available or to help during\nemergencies.” Ltr. of Understanding, CenturyTel of\nWashington, Inc., CenturyTel of Oregon, Inc., CenturyTel of\nMontana, Inc. and Locals 89 and 768, IBEW, AFL-CIO, at 103\n(July 1, 2020).\n\n On July 27, 2021, the Union’s business manager, George\nBland, received an email from the Telecommunications\nCouncil, a group of local member unions of the International\nBrotherhood of Electrical Workers (“IBEW”) that represent\nemployees of CenturyTel and other Lumen entities throughout\nthe United States. The email, sent to union representatives\nacross the country, referred to a report from a union local that\nLumen was using non-union National Technicians to perform\nwork in the local union’s area. Union locals in Missouri and\nTexas responded that National Technicians were working in\ntheir areas. On August 9, the Council sent Bland and other\nlocals a model information request regarding CenturyTel’s use\nof National Technicians.\n\n Bland sent the information request to Lumen’s regional\nmanager, John Bemis, on August 10. In a covering email,\nBland stated “the attached information request [was] regarding\nNational Techs working in Local 768’s jurisdiction,” and\nBemis should “call with any questions.” The request itself\nstated the information was “for purposes of monitoring the\ncollective bargaining agreement between the parties and the\n\f 4\ninvestigation, preparation and processing of grievances in the\nevent the Union feels there has been a violation of any\nprovision(s) therein.” There were eighteen questions about the\nnumber of National Technicians working in the Union’s\n“jurisdiction,” how long they had worked there, the nature of\ntheir work, and the job descriptions of certain Union positions.\n\n Bemis called Bland upon receiving the email. The two\nmen had worked together for a number of years, and he was\ncurious whether there were outstanding grievances. During the\ncall, Bemis mentioned there were two National Technicians\nworking in Montana. Lacking details, Bemis forwarded the\ninformation request to Arnell Anderson, the national team’s\nmanager for processing. A stream of emails followed. On\nAugust 25, 2021, having heard nothing, Bland notified Bemis\nand Anderson that the Union was filing an unfair labor practice\ncharge with the Board for “failure to provide or communicate\n[CenturyTel’s] intent regarding this information request.”\nAnderson promptly responded the team was working on the\nrequest and would respond as soon as “appropriate\ninformation” was available.\n\n On September 1, 2021, Lumen Senior Human Resources\nAdvisor Keller Noble responded. Noble stated she was\nworking on the requested job descriptions and would provide\nthem once they were available. In an attached letter, Noble\nconfirmed two National Technicians were working in\nMontana, provided an overview of their responsibilities, and\nstated National Technicians were not performing unit\nbargaining work. Ltr. from Keller Noble to George Bland\n(Sept. 1, 2021). With respect to the questions about the number\nand length of time National Technicians were or had worked in\nthe northwest Montana area, Noble asked “[w]hy is this\ninformation relevant to administering your Collective\nBargaining Agreement when these Lumen employees are not\n\f 5\nrepresented by [the Union] and are not performing bargaining\nunit work?” Id.\n\n Bland replied on September 13. He appreciated “the\nCompany’s assertion” that the National Technicians were “not\nperforming bargaining unit work,” but pointed out “the Union\nhas the right to make an independent determination” of whether\nthe technicians were performing such work or had done so in\nthe past and for how long. He inquired whether Noble had the\nrequested job descriptions. Noble provided one job description\nthat day and three more nine days later. When Bland then\ninquired the following day about answers to the remaining\nunanswered questions, Noble responded that the requested\ninformation about the National Technicians was “outside the\nscope of [the Union’s] jurisdiction as outlined in the collective\nbargaining agreement” because they were not part of the\nbargaining unit. Bland replied the Union’s request would be\nwithin the scope of its jurisdiction if “non-bargaining unit\nmembers are performing the work of employees who are\ncovered by the CBA.” Bland renewed again the request for\ninformation, with a response by September 29.\n\n On October 1, 2021, the Union filed an unfair labor\npractice (“ULP”) charge with the Board. Thereafter the Board\nGeneral Counsel filed a complaint on April 27, 2022, alleging\nthat CenturyTel violated Section 8(a)(5) and (1) of the Act by\nfailing and refusing to bargain collectively and in good faith\nwith the Union as the exclusive bargaining representative of the\nunit, due to its failure to respond to the Union’s request for\ninformation, which was “necessary for, and relevant to, the\nUnion’s performance of its duties.” Compl. ¶ 6(b). Following\nan evidentiary hearing, the administrative law judge (“ALJ”)\nfound that the General Counsel had met the burden to prove the\nallegations by a preponderance of the evidence. CenturyTel of\n\f 6\nMont., Inc., Case No. 19-CA-283839, slip op. at 1 (Dec. 6,\n2022) (“ALJ Dec.”).\n\n Bland, Bemis, and Noble testified at the ULP hearing. As\nrelevant, Bland testified that Bemis had admitted during his\nAugust 2021 call there were “a couple” of National\nTechnicians that were either working or had worked in the\nUnion’s “jurisdiction” or in its “area.” Hearing Tr. 51-52, 130\n(June 14, 2022). Bemis testified that he called Bland upon\nreceiving the August 10 email to find out whether there were\nany forthcoming grievances of which he was unaware, and that\nhe did not “believe” he referred to the Union’s “jurisdiction” in\nresponding there were two National Technicians working in\nMontana. Hearing Tr. at 141-42. “On balance,” the ALJ\ncredited Bland’s version of the call “as far more likely, given\nthe stated subject matter of the email that inspired [Bemis] to\ninitiate the call . . . .” ALJ Dec. at 5. (The ALJ noted the terms\n“area” and “jurisdiction” were used “interchangeably” by the\nparties. Id. at 5 n.8.) It was “undisputed that the parties had a\nhistory of disagreement over what constituted work within [the\nUnion’s] jurisdiction or ‘area,’” id. at 12; the Union had filed\nand settled two grievances in 2018 alleging that CenturyLink\n(a predecessor company) violated the CBA by using non-union\npersonnel in 2017 and 2018 to perform bargaining unit work in\nthe Union’s Market Area. And Bemis, the ALJ observed, “did\nnot deny that unit work was being performed by the National\n[Technicians] but instead obfuscated, admitting they had\n‘been’ in the Union’s jurisdiction ‘a few times.’” Id. The ALJ\ntherefore concluded the relevance of the requested information\nshould have been apparent to CenturyTel. Id. (citing Murray\nAm. Energy, 366 NLRB No. 80, slip op. at 29).\n\n The ALJ rejected as meritless CenturyTel’s objections that\n(1) it was not obligated to respond to the information request\nbecause the Union failed to establish “an objective factual basis\n\f 7\nfor its belief that the [National Technicians] were, in fact,\nperforming unit work,” and (2) alternatively, CenturyTel had\nprovided “every piece of information outlined” in the General\nCounsel’s complaint. Id. (citation, emphasis, and internal\nquotation marks omitted). The ALJ also overruled\nCenturyTel’s objections to admission of the\nTelecommunications Council’s August 9 email (attaching a\nmodel information request that Bland used as a template) and\nthe 2018 grievances, on the ground the Union had produced\nneither in response to a pre-hearing subpoena. Stating that\npreservation or diversion of unit work is a subject of mandatory\nbargaining under the Act, the ALJ found that the Union’s\ninformation requests “were plainly aimed at ascertaining\nwhether [CenturyTel] had been violating the parties’ contract\nby utilizing the National [Technicians] to perform [Union]\nwork.” Id. (citing New York & Presbyterian Hosp. v. NLRB,\n649 F.3d 723, 730 (D.C. Cir. 2011)). Further, “[e]ven\nassuming that the relevance of the Union’s request was not\napparent to [CenturyTel] upon its receipt” of the information\nrequest on August 10, “the Union was hardly acting on a ‘mere\nsuspicion’ when it continued to pursue the requested\ninformation,” “especially considering Bemis’ admission that\nthe National Techs had been present in [the Union’s] ‘area’”\nduring his subsequent phone call with Bland. Id. at 13-14. The\nALJ therefore ruled that CenturyTel violated Section 8(a)(5)\nand (1) by failing to supply relevant requested information to\nthe Union and ordered CenturyTel to cease and desist, provide\nthe remaining information as alleged in the complaint, and post\na notice describing the violation. CenturyTel filed exceptions,\nand the General Counsel filed an answering brief to which\nCenturyTel responded.\n\n The Board affirmed the ALJ’s rulings, factual findings,\nand conclusions of law, as clarified, and adopted the Order, as\nmodified. CenturyTel of Montana, Inc., 373 NLRB No. 128,\n\f 8\nat 1 & n.2 (Oct. 10, 2024). The Board agreed the Union had\nestablished that the requested information about National\nTechnicians was relevant to its duties at the time of the request.\nFirst, the Union established and demonstrated to CenturyTel\nthe relevance of the requested information about the National\nTechnicians on August 10, upon making its information\nrequest. Id. at 3. The Board adopted the ALJ’s “well-reasoned\ncredibility determinations,” finding Manager Bemis had made\na “contemporaneous admission” on August 10 that “National\nTechnicians had worked in the Union’s jurisdiction.” Id. at 3.\nSecond, the relevance of the information request should have\nbeen “readily apparent” to CenturyTel “under the\ncircumstances on August 10” based on the Bland-Bemis call.\nId. at 4. Third, the Union demonstrated the relevance of the\nrequested information at the ULP hearing with evidence of the\nAugust 10 Bland-Bemis call, the 2018 grievances and\nsettlements, and Telecommunications Council reports that\nNational Technicians had been performing bargaining unit\nwork in two other states. Acknowledging CenturyTel had\nlearned of some of this evidence for the first time at the ULP\nhearing, the Board pointed to its “longstanding” precedent that\n“a union is not obligated to disclose the factual basis for its\ninformation request at the time of the request.” Id. at 3 (citing\nCannelton Indus., Inc., 339 NLRB 996, 997 (2003); Brazos\nElec. Power Coop., Inc., 241 NLRB 1016, 1018-1019 (1979),\nenf’d. in relevant part 615 F.2d 1100 (5th Cir. 1980)). “Rather,\nit is sufficient that the General Counsel demonstrate at the\nhearing that the union had, at the relevant time, a reasonable\nbelief.” Id. (quoting Cannelton Indus., Inc., 339 NLRB at 997).\nThe Board noted CenturyTel did not request the Board to\noverrule its longstanding precedent allowing the General\nCounsel to demonstrate relevance at the ULP hearing, and that\neven if it had, the result would be the same. Id. at 4-5.\n\f 9\n One Member dissented. He concluded the Union failed to\nestablish relevance because it had not provided CenturyTel,\nprior to the ULP hearing, with “objective evidence underlying\nits belief that the information was relevant.” Id. at 6 (Member", "author": "Opinion for the Court by Senior Circuit Judge ROGERS"}, {"type": "dissent", "author": "Kaplan", "text": "Kaplan, dissenting). He urged the Board to adopt the standard\nin Hertz Corp. v. NLRB, 105 F.3d 868, 874 (3d Cir. 1997), to\nrequire a union to provide factual evidence of relevance when\nmaking a request for information. Id. at 6, 8.\n\n II.\n\n CenturyTel petitions for review, and the Board cross-\napplies for enforcement of its Order.\n\n A.\n\n Section 8(a)(5) of the National Labor Relations Act (“the\nAct”) provides that it is an “unfair labor practice for an\nemployer . . . to refuse to bargain collectively with the\nrepresentatives of his employees.” 29 U.S.C. § 158(a)(5).\nViolation of subsection (a)(5) “results in a derivative violation\nof section 8(a)(1),” which provides that employers who\n“interfere with, restrain, or coerce employees in the exercise of\nthe[ir] rights guaranteed by the [Act] have committed an unfair\nlabor practice.” Crozer-Chester Med. Ctr. v. NLRB, 976 F.3d\n276, 284 (3d Cir. 2020) (citations and internal quotation marks\nomitted).\n\n Although the text of the Act does not expressly require\nemployers to provide relevant information upon request, the\nBoard construed the Act to include this requirement shortly\nafter the Act was enacted. In Pioneer Pearl Button Co., 1\nNLRB 837, 842 (1936), employees sought a revised wage and\nhourly scale and the employer responded with a reduced wage\nscale and increased hours. When collective bargaining\n\f 10\ncommenced after some employees had formed a union, the\nemployer claimed that it could not offer higher wages or\nreduced hours because of its poor financial condition, but it\noffered no evidence or alternative proposal and declined the\nunion’s request to produce its books or have them audited. Id.\nat 842-43. The Board found that the employer was on notice\nof the requested pay and hourly scale and therefore was\nobligated under the Act to meet with the union, and did not do\nso until considerable time had passed. Id. Further, the\nemployer’s “attitude was peremptory and non-conciliatory\neven though the employees had been on strike for several\nmonths.” Id. at 843. Given the employer’s “assertion that the\n[company’s] financial condition was poor,” and a refusal\n“either to prove [the] statement, or to permit independent\nverification,” the Board concluded the employer’s refusal to\nbargain with the employees’ representative interfered with,\nrestrained, and coerced the employees in the exercise of the\nrights guaranteed by Section 7 of the Act, id., which include\nthe right to organize, form or join a union, and bargain through\ntheir representatives with the employer, 29 U.S.C. § 157.\n\n In NLRB v. Truitt Manufacturing Co., 351 U.S. 149, 153\n(1956), the Supreme Court addressed similar circumstances.\nAs in Pioneer Pearl Button Co., the employer refused to\nprovide information about the financial ability to pay increased\nwages, arguing that the requested information was irrelevant to\nthe bargaining process and related to matters exclusively within\nthe province of management. Id. at 151. The Court affirmed\nthe Board’s reasoning that good-faith bargaining necessitates\nboth sides having access to information bearing on the\nbargaining process. Id. at 152-53 (citing Pioneer Pearl Button\nCo., 1 NLRB at 842-43).\n\n The Board and the Supreme Court have adhered to this\ninterpretation of the Act. See, e.g., NLRB. v. Acme Indus. Co.,\n\f 11\n385 U.S. 432, 435-36 (1967) (citing Truitt Mfg. Co., 351 U.S.\n149) (enforcing Acme Indus. Co., 150 NLRB 1463 (1965)).\nThe requirement to provide requested information, therefore,\n“derive[s] from the statutory duty to bargain.” Public Serv. Co.\nof New Mexico v. NLRB, 843 F.3d 999, 1004 (D.C. Cir. 2016)\n(enforcing Public Serv. Co. of New Mexico, 360 NLRB 573\n(2014)).\n\n B.\n\n CenturyTel challenges each of the grounds on which the\nBoard found that the General Counsel had established the\nrelevance of the requested information. It contends broadly\nthat “the Board disregarded substantial evidence and departed\nfrom established precedent” by removing “any requirement\nthat relevance must be based on a reasonable belief or\nsupported by objective evidence.” Pet’r’s Br. at 20. It contends\nspecifically that the Board lacked substantial evidence to find\n(1) the August 10 Bland-Bemis phone call demonstrated the\nrelevance of the Union’s information request, (2) the\ncircumstances on August 10 made the relevance of the\ninformation apparent, and (3) in any event, the evidence at the\nULP hearing established relevance. Id. 20, 26, 31-41. The\ncourt will overturn the Board’s decision “only if the Board’s\nfactual findings are not supported by substantial evidence, or\nthe Board acted arbitrarily or otherwise erred in applying\nestablished law to the facts of the case.” Windsor Redding\nCare Ctr., LLC v. NLRB, 944 F.3d 294, 299 (D.C. Cir. 2019)\n(citation and internal quotation marks omitted). “A Board\nfinding is supported by substantial evidence so long as ‘a\nreasonable mind might accept a particular evidentiary record as\nadequate to support a conclusion.’” CP Anchorage Hotel 2,\nLLC v. NLRB, 98 F.4th 314, 322 (D.C. Cir. 2024) (quoting\nDickinson v. Zurko, 527 U.S. 150, 162 (1999)).\n\f 12\n The Union bears the burden of establishing that it sought\nrelevant information because it was seeking information about\nnon-union employees. New York & Presbyterian Hospital v.\nNLRB, 649 F.3d 723, 730 (D.C. Cir. 2011). Presbyterian\nHospital is a hallmark decision in this circuit. “A union’s bare\nassertion that it needs information” would be insufficient;\ninstead “the union must explain to the employer why the\ninformation is relevant.” Id. (quoting Detroit Edison Co. v.\nNLRB, 440 U.S. 301, 314 (1979)). “[T]he threshold for\nrelevance is low,” however, and “the union need not\ndemonstrate the existence of some particular controversy or the\nneed to dispose of some recognized problem.” Teachers\nCollege, Columbia Univ., 902 F.3d at 302 (quoting\nPresbyterian Hosp., 649 F.3d at 730). Instead, relevance is\nassessed under “a discovery-type standard,” where the “fact\nthat the information is of probable or potential relevance” to\nthe Union’s responsibilities “is sufficient to give rise to an\nobligation” to provide it. Presbyterian Hosp., 649 F.3d at 730\n(quoting Acme Indus. Co., 385 U.S. at 437; then quoting Oil,\nChem. & Atomic Workers Loc. Union No. 6-418, AFL-CIO v.\nNLRB, 711 F.2d 348, 359 (D.C. Cir. 1983)). Relevance is\n“examined as of the time of the demand and refusal.” Id. at\n731 (quoting Gen. Elec. Co. v. NLRB, 916 F.2d 1163, 1169 (7th\nCir. 1990)).\n\n Substantial evidence supports the Board’s conclusion that\nthe Union had “a reasonable belief, supported by objective\nevidence,” that the information sought from CenturyTel was\n“relevant to the performance of its duties as the bargaining\nrepresentative.” DirectSat USA LLC v. NLRB, 925 F.3d 1272,\n1278 (D.C. Cir. 2019) (quoting Disneyland Park, 350 NLRB\n1256, 1258 (2007)). Although the Board relied on new\nevidence of the Union’s reasonable belief at the ULP hearing,\nBoard precedent permits that practice, and CenturyTel forfeited\nany challenge to that precedent.\n\f 13\n The Board agreed with the ALJ that the Union had\ndemonstrated to CenturyTel the relevance of the information\nrequest about National Technicians when it made the request\non August 10. CenturyTel, 373 NLRB at 3. Reviewing the\ntestimony before the ALJ — when Manager Bemis had\nresponded on August 10 to Bland’s question whether any\nNational Technicians had been working in the Union’s\njurisdiction, “a few times but not very many” — the Board\nconcluded Bemis’s “contemporaneous admission” established\nthe relevance of the requested information and was\nunpersuaded by CenturyTel’s and the dissenting Member’s\nattempts to minimize the significance of the August 10 call. Id.\nIn the Board’s words: “Of course, Manager Bemis was aware\nof his own admission and that the Union sought the information\nto protect unit work from diversion,” and there was “no reason\nto disturb the judge’s well-reasoned credibility\ndeterminations.” Id. Further, “the Union can hardly be faulted\nfor its assiduousness in pursuing the request for information\nregarding exactly what work the National Technicians\nperformed when Bemis admitted that they had been working in\nthe Union’s area.” Id. at 3-4.\n\n CenturyTel acknowledges that “[a] hint of relevance\npossibly may have attached if the parties had in fact been using\nthe terms ‘jurisdiction’ and ‘area’ interchangeably.” Pet’r’s Br.\n39. That is what the ALJ found, ALJ Dec. at 5 n.8, and what\nthe Board confirmed, CenturyTel, 373 NLRB at 3. Regardless,\n“[w]hen confronted with competing versions of evidence, [the\ncourt will] defer to the Board’s credibility determinations\nabsent the starkest error.” Constellium Rolled Prods.\nRavenswood, LLC v. NLRB, 45 F.4th 234, 243 (D.C. Cir. 2022)\n(citation omitted). CenturyTel points to no such error.\n\n The Board’s findings and reasoning refute CenturyTel’s\nother challenges to the Decision as well. On the ground that\n\f 14\nthe relevance of the Union’s information request was not\napparent to Manager Bemis on August 10, Petitioner’s Br. 31,\nthe Board explained why “the relevance of the requested\ninformation should have been readily apparent to\n[CenturyTel]” on August 10: Manager Bemis called Bland\nupon receiving the August 10 email, and having been put “on\nnotice that the Union was seeking information regarding a\npossible diversion of unit work,” Bemis told Bland that\nNational Technicians had worked in the Union’s “jurisdiction.”\nCenturyTel, 373 NLRB at 4. On the ground that substantial\nevidence to support the Board’s findings was not presented at\nthe ULP hearing, the evidence before the Board included\nBland’s August 10 email to Bemis attaching the information\nrequest; Bemis’ phone call to Bland on August 10 regarding\nthe Union’s information request; the prior\nTelecommunications Council emails advising Bland that\nNational Technicians were performing local bargaining unit\nwork in Texas and Missouri, and that he should inquire about\nwhether this was occurring in his Union’s “jurisdiction”; and\nthe 2018 grievances filed and settled with a predecessor\ncompany alleging unlawful diversion of Union bargaining unit\nwork to non-union personnel in northwest Montana.\n\n CenturyTel nonetheless contends that the General Counsel\n“cannot establish relevance for the first time at the unfair labor\npractice hearing.” Pet’r’s Br. at 22. In petitioning for review,\nCenturyTel does not contest its statutory obligation to provide\ninformation necessary for the Union to carry out its\nrepresentational responsibilities. Nor does it adopt the\ndissenting Member’s position that the Board should abandon\nits precedent allowing the General Counsel to show relevance\nof requested information at the ULP hearing and require the\nUnion, as in the Third Circuit in Hertz Corp., 105 F.3d at 874,\n“to apprise [CenturyTel] of facts tending to support its request\nfor non-unit information.” CenturyTel, 373 NLRB at 6\n\f 15\n(Member Kaplan, dissenting) (citation and internal quotation\nmarks omitted); see Pet’r’s Reply Br. at 2 n.1. Instead,\nCenturyTel contends evidentiary and procedural failures\nrequire reversal of the Board’s decision. It would have the\ncourt overlook the sources of evidence underlying the Board’s\nconclusion that the Union’s information request was based on\n“a reasonable belief” that CenturyTel may have been diverting\nwork. CenturyTel, 373 NLRB at 4 (quoting Bentley-Jost Elec.\nCorp., 283 NLRB 564, 568 (1987)).\n\n In CenturyTel’s view, the Board could not rely on the 2018\ngrievances, the Telecommunications Council’s information\nrequest template, and correspondence between Bland and\nNoble because this evidence was not produced in response to\nthe pre-hearing subpoena. This contention doubly fails.\nCenturyTel did not include this objection in the exceptions to\nthe Decision, much less show an abuse of discretion by the ALJ\nin admitting this evidence, Cadillac of Naperville, Inc. v.\nNLRB, 14 F.4th 703, 712 (D.C. Cir. 2021), or that the ALJ was\nrequired to disregard as irrelevant any material not produced as\ncalled for in the subpoena, see, e.g., Hearing Tr. at 44-51, 53-\n55, 90. Moreover, the court has no occasion to address\nCenturyTel’s claim that its due process rights were violated\nwhen the Board relied on evidence introduced for the first time\nat the ULP hearing. Pet’r’s Br. 24-25. CenturyTel did not raise\nthis in exceptions to the Decision, nor in a petition for Board\nrehearing, and offers no explanation for the failure to do so.\nSee 29 U.S.C. § 160(e); HealthBridge Mgmt, LLC v. NLRB,\n798 F.3d 1059, 1069 (D.C. Cir. 2015).\n\n So too CenturyTel may have forfeited its argument that the\nUnion acted in bad faith when, in responding to the pre-hearing\nsubpoena, it failed to disclose that it had not drafted the\ninformation request. Pet’r’s Br. at 32-34. Bland acknowledged\non cross examination that he had mistakenly failed to produce\n\f 16\nthe Telecommunications Council’s August 9 email in response\nto the subpoena. Hearing Tr. 55. Neither the ALJ nor the\nBoard found bad faith. CenturyTel did not expressly reference\nnoncompliance with the subpoena in its exceptions. Even now,\nCenturyTel fails to explain how the Union acted in bad faith\nabsent a requirement to disclose such evidence prior to the\nhearing.\n\n CenturyTel also challenges the Board’s reliance on the\n2018 grievances, which it characterizes as “distant, sparse, and\nirrelevant,” having occurred several years ago involving its\npredecessor. Pet’r’s Br. 34-35. Yet the Board reasonably\nfocused on them because they involved the same type of\n“allegations of unilateral subcontracting of work and the use of\nnon-unit employees to perform bargaining unit work in\nNorthwest Montana.” CenturyTel, 373 NLRB at 4.\n\n CenturyTel’s challenges therefore fail in view of the\nsubstantial evidence of relevance, considered in light of the\nsurrounding circumstances, which permitted the Board to find\nthat Bland’s August 10 email to Manager Bemis as well as\nBemis’s response put CenturyTel on notice of sufficient\nrelevant facts that explained the objective basis for “the\ninformation request regard[ing] whether ‘National Techs\n[were] working in [the Union’s] jurisdiction.’” CenturyTel,\n373 NLRB at 2 (alterations in original); see Brazos, 241 NLRB\nat 1018. Unlike Disneyland Park, 350 NLRB at 1258, on\nwhich CenturyTel relies, Pet’r’s Br. 28, both the August 10\nemail and phone call informed CenturyTel management “that\nthe Union sought the information to protect unit work from\ndiversion.” CenturyTel, 373 NLRB at 3. Likewise misplaced\nis CenturyTel’s reliance on the concurring opinion in Teachers\nCollege, 902 F.3d at 308 (Silberman, J., concurring), given the\nevidence in support of the Board’s finding that the purpose of\nthe Union’s information request was apparent on August 10 to\n\f 17\nBemis, who was Lumen’s regional manager. CenturyTel, 373\nNLRB at 4. Because the Board properly concluded that the\nevidence and context supported a reasonable belief regarding\ndiversion of Union work, id., CenturyTel’s reliance on San\nDiego Newspaper Guild, Local No. 95 v. NLRB, 548 F.2d 863,\n869 (9th Cir. 1977), and G4S Secure Sols. (USA), Inc., 369\nNLRB No. 7, at 2 (Jan. 9, 2020), is misplaced. In Newspaper\nGuild, Local No. 95, the request was “apparently grounded\nonly upon the Union’s suspicion that some contract violation is\nor has been taking place,” 548 F.2d at 869, and G4S Secure was\nsimilarly based on “suspicion alone,” 369 NLRB, at 2.\n\n Accordingly, the court denies CenturyTel’s petition and\ngrants the Board’s cross-application for enforcement."}]}	PAN	GARCIA	ROGERS	1		{"PAN": ", Circuit", "GARCIA": ", Circuit", "ROGERS": ", Senior Circuit"}	2	1	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10773765/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,775,336	Shahnaz Haeri Mehneh v. Marco Rubio	2026-01-16	25-5001	U.S. Court of Appeals for the District of Columbia Circuit	{"judges": "Before: CHILDS, Circuit Judge, and EDWARDS and GINSBURG, Senior Circuit Judges.", "parties": "", "opinions": [{"author": "Opinion for the Court filed by Senior Circuit Judge GINSBURG.", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nSubmitted November 17, 2025 Decided January 16, 2026\n\n No. 25-5001\n\n SHAHNAZ HAERI MEHNEH AND ALIASGHAR NEJAT,\n APPELLANTS\n\n v.\n\nMARCO RUBIO, IN HIS OFFICIAL CAPACITY AS U.S. SECRETARY\nOF STATE AND ROBERT JACHIM, IN HIS OFFICIAL CAPACITY AS\n ACTING DIRECTOR OF SCREENING, ANALYSIS AND\n COORDINATION,\n APPELLEES\n\n\n\n Consolidated with 25-5180\n\n\n Appeals from the United States District Court\n for the District of Columbia\n (No. 1:24-cv-01374)\n (No. 1:24-cv-01029)\n\n\n Curtis Lee Morrison, Garrett Carter May, Spencer Faber,\nand Andrew T. Tutt were on the briefs for appellants.\n\n Leslie K. Dellon, Katherine Melloy Goettel, and Jonathan\nWeinberg were on the brief for amici curiae American\n\f 2\nImmigration Council and American Immigration Lawyers\nAssociation in support of appellants.\n\n Felicia H. Ellsworth was on the brief for amicus curiae\nCato Institute in support of appellants.\n\n Brian Scott Green was on the brief for amicus curiae\nNational Iranian American Council in support of appellants.\n\n Brett A. Shumate, Assistant Attorney General, U.S.\nDepartment of Justice, Benjamin Mark Moss, Acting Senior\nCounsel Office of Immigration Litigation, and Christopher Ian\nPryby, Trial Attorney, were on the brief for appellees.\n\n Before: CHILDS, Circuit Judge, and EDWARDS and\nGINSBURG, Senior Circuit Judges.\n\n Opinion for the Court filed by Senior Circuit Judge\nGINSBURG.\n\n GINSBURG, Senior Circuit Judge: These consolidated\nappeals involve claims of unreasonable delay in the adjudica-\ntion of two visa applications placed in administrative pro-\ncessing by the Department of State. The applicants each filed a\ncomplaint seeking to compel the Department to finish adjudi-\ncating his application. Both complaints were dismissed for fail-\nure to state a claim, and the applicants appealed. While their\nappeals were pending, the Department concluded the adminis-\ntrative processing of the applications, issuing a visa to one\napplicant and refusing a visa to the other.\n\n Based upon these intervening events, we conclude the\nappeals are moot because we cannot grant any effectual relief\nto the applicants. Because no exception to mootness applies,\nwe dismiss the appeals for lack of jurisdiction.\n\f 3\n I. Background\n\n Shahnaz Haeri Mehneh and Saeid Motevali are U.S. citi-\nzens who petitioned for immigrant visas on behalf of their rel-\natives: Mrs. Mehneh on behalf of her husband, Aliasghar Nejat;\nMr. Motevali on behalf of his father, Alireza Motevaly\nAlamouti. Mr. Nejat and Mr. Alamouti each interviewed with\na consular officer. Following the interviews, their applications\nwere placed in administrative processing, and they were asked\nto take additional steps. Shortly after their interviews, they sub-\nmitted additional information and then waited for the State\nDepartment to conclude the administrative processing of their\napplications. Sixteen months after Mr. Nejat’s interview, he\nand his wife filed a complaint in the district court alleging an\nunreasonable delay in the adjudication of his application. Mr.\nAlamouti and his son did the same seven months after Mr.\nAlamouti’s interview.\n\n Both complaints were dismissed for failure to state a claim\npursuant to the factors for a claim of unreasonable delay set\nforth in Telecommunications Research & Action Center v.\nFCC, 750 F.2d 70, 79-80 (D.C. Cir. 1984). See Motevali v.\nRubio, No. 24-cv-1029, 2025 WL 885116, at 6-8 (D.D.C.\nMar. 21, 2025); Mehneh v. Blinken, No. 24-cv-1374, 2024 WL\n5116521, at 7-9 (D.D.C. Dec. 16, 2024). Mr. Nejat and Mr.\nAlamouti each filed a notice of appeal. While their appeals\nwere pending, the Department completed the administrative\nprocessing of their applications. The Department issued Mr.\nNejat a visa, and he has since entered the country and applied\nfor a green card. The Department refused Mr. Alamouti a visa.\n\n II. Discussion\n\n Under Article III of the Constitution of the United States,\na federal court “may only adjudicate actual, ongoing controver-\nsies.” Honig v. Doe, 484 U.S. 305, 317 (1988). A case becomes\n\f 4\nmoot and must be dismissed for lack of jurisdiction “when, by\nvirtue of an intervening event, a court of appeals cannot grant\nany effectual relief whatever in favor of the appellant.”\nCalderon v. Moore, 518 U.S. 149, 150 (1996) (cleaned up).\nThe Supreme Court has recognized “two principal exceptions\nto mootness.” Cierco v. Mnuchin, 857 F.3d 407, 414 (D.C. Cir.\n2017) (quoting HARRY T. EDWARDS ET AL., FEDERAL\nSTANDARDS OF REVIEW 135 (2d ed. 2013)). First, when “a\nparty voluntarily ceases the challenged activity,” the case is not\nmoot “unless it is absolutely clear the allegedly wrongful\nbehavior could not reasonably be expected to recur.” Pub.\nCitizen, Inc. v. FERC, 92 F.4th 1124, 1128 (D.C. Cir. 2024)\n(cleaned up). Second, the exception for cases that are “capable\nof repetition yet evading review” applies when “(1) the chal-\nlenged action is too short to be fully litigated prior to cessation\nor expiration; and (2) there is a reasonable expectation that the\nsame complaining party would be subjected to the same action\nagain.” Am. Forest Res. Council v. Williams, 96 F.4th 417, 421\n(D.C. Cir. 2024). “The party seeking jurisdictional dismissal\nmust establish mootness, while the opposing party has the bur-\nden to prove that a mootness exception applies.” Reid v.\nHurwitz, 920 F.3d 828, 832 (D.C. Cir. 2019). \n\n\n\n The appellants argue the Department bears the burden of showing\nthat the voluntary-cessation exception does not apply. To be sure, the\nSupreme Court and our court have held “a defendant claiming that\nits voluntary compliance moots a case bears the formidable burden\nof showing that it is absolutely clear the allegedly wrongful behavior\ncould not reasonably be expected to recur.” Friends of the Earth, Inc.\nv. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 190 (2000); see\nFBI v. Fikre, 601 U.S. 234, 241 (2024); see also Row 1 Inc. v.\nBecerra, 92 F.4th 1138, 1144 (D.C. Cir. 2024). That burden,\nhowever, “does not apply automatically whenever the prospect of\nmootness is raised by a party’s voluntary conduct.” Pub. Citizen,\n92 F.4th at 1128. As we recently explained, we will impose this\n\f 5\nA. Nejat’s Appeal\n\n Mr. Nejat received his visa while his appeal was pending.\nBecause the Department completed administrative processing\nand issued the visa, we “cannot grant any effectual relief” to\nMr. Nejat. Calderon, 518 U.S. at 150 (cleaned up). His case is\nmoot. Mr. Nejat nonetheless invokes the voluntary-cessation\nexception to mootness, but that exception does not save his\nappeal.\n\n The Department has explained why there is no reasonable\nexpectation that Mr. Nejat will be subject to a similar delay\nagain. Mr. Nejat entered the country after receiving his visa.\nThe Department represented that once Mr. Nejat receives his\ngreen card, for which he has applied, “he would not need a visa\nto reenter the United States unless he leaves for longer than one\nyear (or loses that status).” Appellees’ Br. 17; see 8 C.F.R.\n§ 211.1(a)(2). Nothing in the record indicates that either event\nis likely to occur or that Mr. Nejat would face a similar delay\nin the future if he did need to apply again for a visa.\n\n Mr. Nejat does not dispute this. Instead, he claims the\nDepartment “tactically mooted this case” as “part of a nation-\nwide pattern.” Appellants’ Reply Br. 30. His only evidence,\nhowever, is the Department’s timing in this case and in a case\ndismissed as moot in an unpublished decision by a different\ncourt of appeals. See Chen v. Noem, No. 24-2058, 2025 WL\n\n“heavy burden” under the voluntary-cessation doctrine “only if there\nis some evidence that the party sought to manipulate the court’s\njurisdiction.” Samma v. Dep’t of Def., 136 F.4th 1108, 1114 (2025);\nsee also Pub. Citizen, 92 F.4th at 1128 (“Courts have declined to\napply the doctrine when the facts do not suggest any arguable\nmanipulation of our jurisdiction” (cleaned up)). Even if the\nDepartment were, however, to bear the burden of showing neither\nexception applies, it has done so in this case for the reasons stated.\n\f 6\n1466205, at 2 (2d Cir. May 22, 2025). In that case, the court\nrejected a similar claim of “gamesmanship” by the Department\nbecause the appellant offered “no adequate basis for his con-\ntention.” Id. Here, too, the evidence is not sufficient for us “to\nimpute such manipulative conduct to a coordinate branch of\ngovernment.” Clarke v. United States, 915 F.2d 699, 705 (D.C.\nCir. 1990). Far from attempting to evade review, when explain-\ning why it filed a motion to strike the briefs of the amici instead\nof seeking an extension of time to file its reply brief, the\nDepartment expressed its desire for this court to rule on the\nmerits of these appeals “expeditiously.” Simply put, “this is not\na case in which a party sought to strategically avoid judicial\nreview by ceasing a challenged activity.” Samma, 136 F.4th at\n1114 (cleaned up). We therefore agree with the Department\nthat the appeal in Mehneh should be dismissed as moot.\n\nB. Alamouti’s Appeal\n\n The Department refused Mr. Alamouti a visa seven weeks\nbefore his case was to be argued in this court. Because the\nDepartment completed administrative processing and refused\nthe visa, we cannot grant any relief to Mr. Alamouti. His case\nis also moot.\n\n Mr. Alamouti claims both exceptions to mootness apply.\nWe see no reason, however, to believe he will again face a sim-\nilar delay in the adjudication of a visa application. The consular\nofficer refused Mr. Alamouti a visa under 8 U.S.C.\n§ 1182(a)(3)(B), which makes an alien inadmissible due to his\n“terrorist activities.” The consular officer also indicated on the\nrefusal notice that no waiver is available for a person denied a\nvisa for that reason. Mr. Alamouti claims he will face a similar\ndelay if he reapplies for a visa, but a consular officer reviewing\na future application would see the reason for his first denial and\nnecessarily refuse him a visa. There is, therefore, no reason to\n\f 7\nexpect the Department again would spend significant time on\nprocessing a future application by Mr. Alamouti.\n\n Mr. Alamouti also claims the Department refused him a\nvisa while his appeal was pending in order to avoid judicial\nreview. We reject this argument for the reasons discussed\nabove with respect to Mr. Nejat. See Pub. Citizen, 92 F.4th at\n1128; Clarke, 915 F.2d at 705.\n\n For these reasons, the appeal in Motevali should also be\ndismissed as moot.\n\n III. Conclusion\n\n For the reasons stated, we dismiss the appeals as moot.\nWhen a pending appeal becomes moot, it is our “general prac-\ntice” to “vacate and remand with instructions to dismiss.”\nPlanned Parenthood of Wis., Inc. v. Azar, 942 F.3d 512, 519\n(D.C. Cir. 2019); see, e.g., Pub. Citizen, 92 F.4th at 1131\n(vacating where “no party argues against vacatur, and it will\nfurther the public interest by precluding any potential reliance\non the challenged orders we lack authority to review” (cleaned\nup)). We therefore vacate the judgments of the district court\nand remand with instructions to dismiss the cases as moot.\n\n So ordered.\n\n\n\n\n*\n In the alternative, the appellants ask us to create a new mootness\nexception for claims of unreasonable delay. We decline to do so. Cf.\nAlphabet Workers Union-Commc’n Workers of Am., Local 9009 v.\nNLRB, 134 F.4th 1217, 1225 (D.C. Cir. 2025) (recognizing only\n“two exceptions to the [mootness] doctrine”).", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11241921/", "author_raw": "Opinion for the Court filed by Senior Circuit Judge GINSBURG."}]}	CHILDS	EDWARDS	GINSBURG	1		{"CHILDS": ", Circuit", "EDWARDS": ", Senior Circuit", "GINSBURG": ", Senior Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10775336/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,770,966	Midwest-Cbk, LLC v. United States	2026-01-08	24-1142	U.S. Court of Appeals for the Federal Circuit	{"judges": "Before PROST and CUNNINGHAM, Circuit Judges, and ANDREWS, District Judge.", "parties": "", "opinions": [{"author": "ANDREWS, District Judge", "type": "010combined", "text": "Case: 24-1142 Document: 47 Page: 1 Filed: 01/08/2026\n\n\n\n\n United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n MIDWEST-CBK, LLC,\n Plaintiff-Appellant\n\n v.\n\n UNITED STATES,\n Defendant-Appellee\n ______________________\n\n 2024-1142\n ______________________\n\n Appeal from the United States Court of International\n Trade in Nos. 1:17-cv-00154-JCG, 1:17-cv-00155-JCG,\n 1:17-cv-00272-JCG, Judge Jennifer Choe-Groves.\n ______________________\n\n Decided: January 8, 2026\n ______________________\n\n PATRICK KLEIN, Neville Peterson LLP, New York, NY,\n argued for plaintiff-appellant. Also represented by JOHN\n M. PETERSON; RICHARD F. O'NEILL, Seattle, WA.\n\n MONICA PERRETTE TRIANA, International Trade Field\n Office, United States Department of Justice, New York,\n NY, argued for defendant-appellee. Also represented by\n BRANDON ALEXANDER KENNEDY, AIMEE LEE, PATRICIA M.\n MCCARTHY, JUSTIN REINHART MILLER, BRETT SHUMATE;\n EMMA TINER, Office of Assistant Chief Counsel, United\n States Customs and Border Protection, United States De-\n partment of Homeland Security, New York, NY.\n\fCase: 24-1142 Document: 47 Page: 2 Filed: 01/08/2026\n\n\n\n\n 2 MIDWEST-CBK, LLC v. US\n\n\n\n\n ______________________\n\n Before PROST and CUNNINGHAM, Circuit Judges, and\n ANDREWS, District Judge. 1\n ANDREWS, District Judge.\n Plaintiff Midwest-CBK, LLC (Midwest) appeals from\n the final judgment of the U.S. Court of International Trade\n (CIT) denying Midwest’s motion for partial summary judg-\n ment and granting the cross-motion for partial summary\n judgment of Defendant United States. 2 This court has ju-\n risdiction pursuant to 28 U.S.C. § 1295(a)(5). We hold that\n the CIT ruled correctly in granting the government’s cross-\n motion for summary judgment that (1) the subject entries\n were not deemed liquidated by operation of law; and (2)\n Midwest’s transactions qualified as sales “for exportation\n to the United States” under 19 U.S.C. § 1401a(b)(1). Ac-\n cordingly, we affirm.\n\n\n\n\n 1 Honorable Richard G. Andrews, District Judge,\n United States District Court for the District of Delaware,\n sitting by designation.\n 2 Midwest moved the CIT to enter a final judgment\n of dismissal against Midwest to permit it to appeal the\n case; this dismissal was granted by the CIT. Midwest-CBK,\n LLC v. United States, 662 F. Supp. 3d 1377, 1378–79 (Ct.\n Int’l Trade 2023). As such, the CIT’s ruling on the motion\n and cross-motion for partial summary judgment merge into\n the final decision under Federal Rule of Appellate Proce-\n dure 3(c)(4).\n\fCase: 24-1142 Document: 47 Page: 3 Filed: 01/08/2026\n\n\n\n\n MIDWEST-CBK, LLC v. US 3\n\n\n\n I. BACKGROUND 3\n Midwest was a Minnesota-based retailer of Christmas\n ornaments and similar items. 4 Midwest-CBK, LLC v.\n United States, 578 F. Supp. 3d 1296, 1298 (Ct. Int’l Trade\n 2022). For the time period relevant to this case, Midwest\n “maintained its corporate office in [] Minnesota” and “its\n inventory, distribution, warehousing, invoicing, and order\n control departments [in] Ontario, Canada.” Id. at 1300.\n Midwest had Canadian bank accounts to pay for expenses\n related to its Canadian operations. Id.\n Midwest “purchas[ed] merchandise from foreign sup-\n pliers for exportation to Canada.” Id. Once imported into\n Canada, this merchandise was stored in Midwest’s On-\n tario-based warehouse. Id. Midwest employed a United\n States-based sales staff to solicit orders and submit them\n to Midwest’s personnel in Minnesota and Ontario. Id. Pur-\n chase orders were reviewed by Midwest’s personnel in Can-\n ada, who would prepare the merchandise for shipment\n from Canada to the United States. Id. The purchase orders\n provided to Midwest’s customers included the language:\n “All prices FOB Buffalo, NY as defined by the New York\n State Uniform Commercial Code.” 5 J.A. 667; see Midwest-\n CBK, 578 F. Supp. 3d at 1300.\n The importer of record for merchandise, with a few ex-\n ceptions, is required to submit “entries” for that merchan-\n dise to United States Customs and Border Protection\n (Customs). See 19 U.S.C. § 1484(a). An “entry” means the\n\n\n\n 3 For the facts in this background section, we draw\n heavily from the findings of the CIT. These facts are undis-\n puted.\n 4 Midwest wound up active operations at the end of\n 2018.\n 5 “The term ‘FOB’ means ‘free on board.’” Midwest-\n CBK, 578 F. Supp. 3d at 1307.\n\fCase: 24-1142 Document: 47 Page: 4 Filed: 01/08/2026\n\n\n\n\n 4 MIDWEST-CBK, LLC v. US\n\n\n\n\n “documentation or data required . . . to be filed with [Cus-\n toms] . . . to secure the release of imported merchandise\n from [Customs’] custody, or the act of filing that documen-\n tation.” 19 C.F.R. § 141.0a(a). Entries must undergo “liqui-\n dation” at the time merchandise is brought into the United\n States. See 19 U.S.C. § 1504. “Liquidation means the final\n computation or ascertainment of duties on entries . . . .” 19\n C.F.R. § 159.1.\n In 2013, Midwest informed Customs that Midwest\n would enter merchandise based on its “deductive value,”\n which it then did into 2016. Midwest-CBK, 578 F. Supp. 3d\n at 1301. “Customs subsequently extended the deadline for\n liquidation of [Midwest’s] entries and initiated a Regula-\n tory Audit to determine the proper basis of valuation.” Id.\n at 1302. “The audit involved multiple steps, including a\n risk assessment of the relevant issues, the issuance of a\n questionnaire, a walkthrough of import practices . . ., inter-\n views with [Midwest’s] personnel, and the issuance of a fi-\n nal report.” Id. By June 14, 2014, Midwest had delivered to\n Customs all the information Customs had ever requested\n from Midwest. Id. at 1309. “Customs completed its field-\n work on October 14, 2014” and “issued a Draft Audit Report\n on July 1, 2015, concluding that transaction value,” not de-\n ductive value, “was the proper basis of [appraisement] for\n the subject merchandise.” Id. at 1302. Midwest submitted\n responsive comments on July 8, 2015, and Customs sought\n no additional information from Midwest. Id. “Customs is-\n sued a Final Audit Report to [Midwest] on February 24,\n 2016, stating that the subject merchandise should be val-\n ued on the basis of transaction value.” Id. After further dis-\n cussions with Midwest, Customs liquidated Midwest’s\n merchandise according to transaction value, which Cus-\n toms calculated using the original entered values plus a\n 75.75% upward adjustment. Id. at 1302–03.\n Midwest subsequently brought this action. Midwest as-\n serts that Customs improperly appraised the subject mer-\n chandise based on transaction value rather than deductive\n\fCase: 24-1142 Document: 47 Page: 5 Filed: 01/08/2026\n\n\n\n\n MIDWEST-CBK, LLC v. US 5\n\n\n\n value. Appellant Opening Br. 25–27. The basis for this as-\n sertion is that the sales of this merchandise constituted do-\n mestic sales and not sales for exportation to the United\n States. Id. at 27. Midwest also contends that various en-\n tries should have been deemed liquidated by operation of\n law, because Customs “had no basis to extend liquidation\n of entries after June 14, 2014.” Id. at 18.\n II. LEGAL STANDARD\n We review the CIT’s decision granting summary judg-\n ment “without deference.” Ford Motor Co. v. United States,\n 157 F.3d 849, 854 (Fed. Cir. 1988).\n The CIT reviews a decision by Customs to extend a liq-\n uidation deadline for entries under the abuse of discretion\n standard of review. St. Paul Fire & Marine Ins. Co. v.\n United States, 6 F.3d 763, 768 (Fed. Cir. 1993) (“Customs\n may, for statutory purposes . . . employ up to four years to\n effect liquidation so long as the extensions it grants are not\n abusive of its discretionary authority.”); see Ford Motor Co.,\n 157 F.3d at 855 (reviewing extensions for abuse of discre-\n tion). Since the CIT granted summary judgment that the\n undisputed record showed that Customs did not abuse its\n discretion, we review that decision de novo. V.O.S. Selec-\n tions, Inc. v. Trump, 149 F.4th 1312, 1327 (Fed. Cir. 2025).\n We review the CIT’s statutory interpretation de novo.\n Int’l Customs Prods., Inc. v. United States, 748 F.3d 1182,\n 1186 (Fed. Cir. 2014).\n III. DISCUSSION\n A. Liquidation by Operation of Law\n The usual rule is that, absent a proper extension of the\n liquidation deadline, “an entry of merchandise . . . not liq-\n uidated within 1 year . . . shall be deemed liquidated at the\n rate of duty, value, quantity, and amount of duties asserted\n by the importer of record.” 19 U.S.C. § 1504(a)(1). The Sec-\n retary of the Treasury is permitted to extend the\n\fCase: 24-1142 Document: 47 Page: 6 Filed: 01/08/2026\n\n\n\n\n 6 MIDWEST-CBK, LLC v. US\n\n\n\n\n liquidation deadline if “the information needed for the\n proper appraisement or classification of the . . . merchan-\n dise . . . is not available to the Customs Service.” 19 U.S.C.\n § 1504(b)(1). 6 Customs is permitted to obtain up to three\n such one-year extensions. 19 C.F.R. § 159.12(e).\n Before the CIT, the heart of the parties’ dispute on this\n matter was whether Customs properly extended the liqui-\n dation period under 19 U.S.C. § 1504(b)(1). Midwest con-\n tended that Customs did not have the authority to extend\n the liquidation period beyond June 14, 2015, because Mid-\n west had fully responded to all of Customs’ initial and sup-\n plemental requests for information on or before June 14,\n 2014. Midwest-CBK, 578 F. Supp. 3d at 1309. The United\n States responded that during the period when the exten-\n sions were made, Customs was busy collecting and review-\n ing information from Midwest to determine the proper\n basis of appraisement of the merchandise. Id.\n The CIT agreed with the Government’s position, hold-\n ing that Customs had a reasonable basis for extending liq-\n uidation in order to complete the audit process, ensure its\n accuracy, and comply with established standards. Id. at\n 1310. Thus, the CIT found that Customs did not abuse its\n discretion in so acting. Id.\n Midwest now raises three arguments on appeal.\n First, Midwest argues that Customs’ decision to extend\n liquidation in this case should not be reviewed under an\n “abuse of discretion” standard. Appellant Opening Br. 23–\n 24. Midwest claims that since Customs possessed all the\n information it required from Midwest by June 14, 2014, the\n statutory condition for further extensions under 19 U.S.C.\n § 1504(b)(1) had disappeared. Id. at 24–25. Midwest likens\n\n\n 6 There are other statutory bases under which Cus-\n toms may properly extend the liquidation period. As Cus-\n toms does not assert them, we do not address them.\n\fCase: 24-1142 Document: 47 Page: 7 Filed: 01/08/2026\n\n\n\n\n MIDWEST-CBK, LLC v. US 7\n\n\n\n the facts of this case to those in Ford Motor Co., where this\n court overturned the CIT’s grant of summary judgment in\n favor of the government and held that “the [CIT] cannot\n uphold a decision to extend a liquidation if an importer\n ‘eliminate[s] all reasonable bases for making that deci-\n sion.’” Ford Motor Co., 157 F.3d at 855 (quoting St. Paul\n Fire & Marine, 6 F.3d at 768). The court found that the\n reasons proffered by Customs to the CIT were “quite circu-\n lar: Customs delayed because it needed more information\n yet argues it must have needed more information because\n it delayed . . . . [Customs] had known [it] needed to perform\n this task three years earlier. Customs offers no explanation\n for taking three years to perform this task.” Ford Motor\n Co., 157 F.3d at 856. Given the lack of explanation, the\n court held that the evidence “could show that Customs\n abused its discretion in seeking time extensions,” making\n the grant of summary judgment improper. Id. at 857.\n The facts in Ford Motor Co. are readily distinguishable\n from those in the case before us, however. Based on the un-\n disputed facts in this case, Customs offers good reasons for\n its extension of liquidation: it conducted several rounds of\n audits, confirmed the accuracy of those audits, and re-\n viewed them to ensure compliance with Generally Ac-\n cepted Government Auditing Standards. See Midwest-\n CBK, 578 F. Supp. 3d at 1309. Customs thus submitted suf-\n ficient evidence into the record to demonstrate that the ex-\n tension of the liquidation period was justified in this case.\n As a result, we hold that Midwest has not “eliminate[d] all\n reasonable bases for [Customs in] making [the] decision” to\n extend liquidation. Ford Motor Co., 157 F.3d at 855 (quot-\n ing St. Paul Fire & Marine, 6 F.3d at 768). We therefore\n hold, in light of the factual record before us, that Customs’\n extension of liquidation did not constitute an abuse of dis-\n cretion.\n Second, Midwest argues that the internal review that\n Customs engaged in cannot form the basis for an extension\n of liquidation. Appellant Opening Br. 25. It is undisputed\n\fCase: 24-1142 Document: 47 Page: 8 Filed: 01/08/2026\n\n\n\n\n 8 MIDWEST-CBK, LLC v. US\n\n\n\n\n that Customs had received all the information it requested\n from Midwest for proper appraisement of the subject mer-\n chandise on or before June 14, 2014, the date by which Mid-\n west had fully responded to all of Customs’ initial and\n supplemental requests for information. Midwest claims\n that prolonged internal deliberations do not provide a basis\n for extending the liquidation period. Id. This argument is\n unconvincing however, because the Court in Ford Motor\n Co. held, “Customs accurately notes that the statute does\n not require that information justifying a delay must come\n from the importer. A need for internal information from\n other Customs personnel might also satisfy section\n 1504(b)(1).” Ford Motor Co., 157 F.3d at 856. The record\n shows that Customs engaged in several rounds of internal\n deliberations to verify the accuracy of the information it re-\n ceived and ensure the accuracy of the calculations it de-\n rived therefrom. 7 Midwest-CBK, 578 F. Supp. 3d at 1309.\n These rounds of internal review were reasonably necessary\n for the proper appraisement or classification of the mer-\n chandise involved and thus form a proper basis for the ex-\n tension of liquidation.\n Third, Midwest argues in its reply brief that the Gov-\n ernment’s “proffered explanation” for Customs’ decision to\n extend liquidation “is untrue.” Appellant Reply Br. 10. The\n “proffered explanation” is well-supported by citations to\n the record, Appellee Resp. Br. 47–48, and the claim of un-\n truth is not. Midwest further argues that the “proffered ex-\n planation” is “immaterial and cannot satisfy the statutory\n requirements for lawfully extending liquidation.” Appel-\n lant Reply Br. 10. The CIT held, and we agree, that “the\n\n\n\n 7 This process required Customs to audit more\n than 560 entries. Midwest-CBK, 578 F. Supp. 3d at 1302.\n “Each entry comprise[s] ten to hundreds of line items, and\n each line item may include any number of different items\n that were subject to a particular classification.” J.A. 732.\n\fCase: 24-1142 Document: 47 Page: 9 Filed: 01/08/2026\n\n\n\n\n MIDWEST-CBK, LLC v. US 9\n\n\n\n record reflects that Customs was actively engaged through-\n out the audit process in collecting and reviewing the infor-\n mation needed to determine the proper method of\n appraisement.” Midwest-CBK, 578 F. Supp. 3d at 1310.\n That Customs did not use some of the information in the\n final appraisement does not undercut the conclusion that\n Customs reasonably considered the information.\n We therefore affirm the CIT’s ruling that Customs did\n not abuse its discretion in extending liquidation and that\n the entries in question were not liquidated by operation of\n law.\n B. Appraisement\n There is a hierarchy of various appraisement methods\n for imported merchandise. 8 19 U.S.C. § 1401a(a)(1). The\n\n\n\n\n 8 (a) Generally\n (1) Except as otherwise specifically provided for in\n this chapter, imported merchandise shall be ap-\n praised, for the purposes of this chapter, on the ba-\n sis of the following:\n (A) The transaction value provided for under\n subsection (b).\n (B) The transaction value of identical merchan-\n dise provided for under subsection (c), if the\n value referred to in subparagraph (A) cannot be\n determined, or can be determined but cannot\n be used by reason of subsection (b)(2).\n (C) The transaction value of similar merchan-\n dise provided for under subsection (c), if the\n value referred to in subparagraph (B) cannot be\n determined.\n (D) The deductive value provided for under\n subsection (d), if the value referred to in sub-\n paragraph (C) cannot be determined and if the\n\fCase: 24-1142 Document: 47 Page: 10 Filed: 01/08/2026\n\n\n\n\n 10 MIDWEST-CBK, LLC v. US\n\n\n\n\n default method of appraisement is transaction value; other\n methods are appropriate if the transaction value of im-\n ported merchandise cannot be determined. Transaction\n value of merchandise is defined as “the price actually paid\n or payable for the merchandise when sold for exportation\n to the United States” in addition to various other miscella-\n neous costs (e.g., packing costs, royalty or licensing fees,\n commission costs). 19 U.S.C. § 1401a(b)(1).\n In order for merchandise to be appraised on the basis\n of transaction value, the goods must be (1) sold (2) for ex-\n portation to the United States. VWP of Am., Inc. v. United\n States, 175 F.3d 1327, 1338–39 (Fed. Cir. 1999). Midwest\n does not contest that the merchandise was indeed “sold.”\n See Appellant’s Opening Br. 27. Thus, the only question is\n whether these sales were “for exportation to the United\n States.” This determination is a “fact-specific” one that\n “can only be made on a case-by-case basis” by a court con-\n sidering the “reality of the transactions” between the seller\n and buyer. E.C. McAfee Co. v. United States, 842 F.2d 314,\n 319 (Fed. Cir. 1988).\n Before the CIT, Midwest contended that the sales in\n question were not “for exportation to the United States.”\n Midwest-CBK, 578 F. Supp. 3d at 1303. Midwest claimed\n that, because the merchandise in question was sold “FOB\n Buffalo, NY” pursuant to the New York Uniform Commer-\n cial Code (UCC), sales of this merchandise should instead\n\n\n importer does not request alternative valuation\n under paragraph (2).\n (E) The computed value provided for under\n subsection (e), if the value referred to in sub-\n paragraph (D) cannot be determined.\n (F) The value provided for under subsection (f),\n if the value referred to in subparagraph (E)\n cannot be determined.\n 19 U.S.C. § 1401a(a)(1) (bolding removed).\n\fCase: 24-1142 Document: 47 Page: 11 Filed: 01/08/2026\n\n\n\n\n MIDWEST-CBK, LLC v. US 11\n\n\n\n be considered as domestic sales. Id. at 1305. Midwest ar-\n gued that a domestic sale could not be used as the basis of\n a transaction value appraisement under 19 U.S.C. §\n 1401a(b)(1). Id. In support of this argument, Midwest re-\n lied heavily upon Orbisphere Corp. v. United States, 726 F.\n Supp. 1344 (Ct. Int’l Trade 1989). The United States re-\n sponded by pointing to cases showing that an international\n sale is not required to apply a transaction value appraise-\n ment method under the statute. It also argued that the\n Court should not apply Orbisphere because Orbisphere re-\n lied on an older case, Massce, which was decided under a\n predecessor version of the statute at issue. United States v.\n Massce & Co., 21 C.C.P.A. 54 (1933).\n The CIT agreed with the United States. It found that\n Orbisphere’s reliance on Massce rendered Orbisphere un-\n persuasive and that the existence of the “FOB Buffalo, NY”\n term was not dispositive evidence that the sales in question\n were domestic. Midwest-CBK, 578 F. Supp. 3d at 1305–07.\n Applying the law to the facts in this case, the CIT found\n that customers in the United States would place orders for\n merchandise located in Canada; the merchandise would\n then be shipped from Canada to the United States. Id. at\n 1306. The CIT found these transactions constituted sales\n for exportation to the United States which could serve as\n the basis for valuing these sales using transaction value.\n Id. at 1306–07.\n The crux of Midwest’s challenge to the CIT’s finding is\n Midwest’s assertion that sales of the merchandise in ques-\n tion occurred entirely in the United States. Appellant\n Opening Br. 29. Midwest claims these sales should not be\n characterized as sales “for exportation to the United\n States” and thus cannot form the basis of a transaction\n value appraisement. Id.\n Midwest’s argument is unpersuasive.\n First, this assertion is not supported by the text of 19\n U.S.C. § 1401a(b)(1), which, as the CIT correctly noted,\n\fCase: 24-1142 Document: 47 Page: 12 Filed: 01/08/2026\n\n\n\n\n 12 MIDWEST-CBK, LLC v. US\n\n\n\n\n “does not expressly require that a sale be international or\n occur abroad” for the use of transaction value to apply.\n Midwest-CBK, 578 F. Supp. 3d at 1306.\n Second, Midwest’s challenge is not supported by prior\n case law which suggests that domestic sales may in fact\n serve as the basis of a transaction value appraisement. In\n VWP, we found that sales between a Canadian manufac-\n turer and its U.S. subsidiary were sales for exportation to\n the United States that served as the basis for transaction\n value. VWP, 175 F.3d at 1339. We noted, however, “if sales\n by [the Canadian manufacturer] to [the U.S. subsidiary]\n cannot serve as the basis for transaction value, then trans-\n action value must be based upon sales by [the U.S. subsid-\n iary] to its U.S. customers.” Id. at 1334. In La Perla\n Fashions, the CIT considered Customs’ use of “the sale be-\n tween [a U.S.-based distributor] and its U.S. customers” in\n determining transaction value appraisement; the CIT con-\n cluded that “transaction value can . . . be based on [the\n U.S.-based distributor’s] price charged to its U.S. custom-\n ers.” La Perla Fashions, Inc. v. United States, 22 C.I.T. 393,\n 399 (Ct. Int’l Trade 1998), aff’d, 185 F.3d 885 (Fed. Cir.\n 1999). Midwest has not explained why either of these cases\n would be inapplicable to the facts currently before us.\n Midwest’s other argument as to why 19 U.S.C. §\n 1401a(b)(1) should not apply to sales unless they occur\n abroad rests on its reading of Orbisphere. Appellant Open-\n ing Br. 39. In that case, U.S. customers placed orders for\n merchandise at one of the plaintiff’s domestic locations. Or-\n bisphere, 726 F. Supp. at 1344. The plaintiff forwarded\n these orders to its office in Switzerland, where the mer-\n chandise was manufactured, and then shipped the devices\n to its customers in the United States “F.O.B. Haworth,\n N.J.” Id. at 1344–45. The CIT, relying heavily upon the\n Massce court’s interpretation of § 402(d) of the Tariff Act of\n 1930, found that the choice between using transaction\n value and deductive value “depend[ed] substantially upon\n where the sales of the product in question are deemed to\n\fCase: 24-1142 Document: 47 Page: 13 Filed: 01/08/2026\n\n\n\n\n MIDWEST-CBK, LLC v. US 13\n\n\n\n have occurred.” Id. at 1350. Though the Orbisphere court\n conceded that “definitions of ‘export value’ [under the Tar-\n iff Act of 1930] and ‘transaction value’ [under 19 U.S.C. §\n 1401a(b)(1)] are not identical, the crucial element of each .\n . . [is] that there have been a sale abroad . . . before either\n measure is applicable.” Id. at 1350–51. The CIT concluded\n that the sales at issue in Orbisphere “were consummated\n within the United States,” thus “establishing ‘deductive\n value’ as the correct basis for valuation of the entries.” Id.\n at 1358.\n The CIT in the case before us correctly found Orbi-\n sphere unpersuasive due to its heavy reliance upon Massce.\n The Massce decision interpreted § 402(d) of the Tariff Act\n of 1930. That section of the act stated that the “export value\n of imported merchandise shall be the market value or the\n price . . . at which such or similar merchandise is freely\n offered for sale to all purchasers in the principal markets\n of the country from which [it is] exported.” Massce, 21\n C.C.P.A. at 55 (emphasis added). Thus, Massce interpreted\n statutory language that defined “export value.” The statu-\n tory language relevant in Massce expressly based the rele-\n vant determination on sales outside the United States.\n The Trade Agreements Act was passed in 1979. As the\n CIT correctly noted, the Trade Agreements Act “removed\n all references to foreign markets in which merchandise\n might be traded.” Midwest-CBK, 578 F. Supp. 3d at 1306.\n In addition, as the Senate Committee on Finance specifi-\n cally noted in its report on the Trade Agreements Act,\n “[t]he use of transaction value as the primary basis for cus-\n toms valuation will allow use of the price which the buyer\n and seller agreed to in their transaction as the basis for\n valuation, rather than having to resort to the more difficult\n concept[] of . . . ‘principal markets of the country of expor-\n tation.’” S. Rep. No. 96-249, at 119 (1979). Our subsequent\n case law has also indicated that § 402(d) of the Tariff Act\n of 1930 “was repealed in 1979 by the Trade Agreements Act\n of 1979.” VWP, 175 F.3d at 334. Thus, the CIT’s holding in\n\fCase: 24-1142 Document: 47 Page: 14 Filed: 01/08/2026\n\n\n\n\n 14 MIDWEST-CBK, LLC v. US\n\n\n\n\n Orbisphere relied upon the Massce court’s interpretation of\n a different term (“export value”) with a differently worded\n definition in a superseded statute. We therefore find Orbi-\n sphere unpersuasive. The CIT correctly decided that 19\n U.S.C. §1401a(b)(1) does not require an international sale\n or a sale abroad to have occurred for a sale of merchandise\n to be considered as a sale “for exportation to the United\n States.” Domestic sales, in certain circumstances, may\n qualify as the basis for using transaction value as an ap-\n praisement method.\n Finally, Midwest argues that the purchase orders for\n the subject merchandise included the language, “FOB Buf-\n falo, NY,” which indicates that the sales in question consti-\n tuted domestic sales. Appellant Opening Br. 33–35. Since\n we find that a domestic sale can serve as the basis for ap-\n praisement based on transaction value under 19 U.S.C. §\n 1401a(b)(1), we need not reach the merits of this conten-\n tion.\n Accordingly, we agree with the well-reasoned opinion\n of the CIT: “After conducting a fact-specific inquiry of\n whether the sales were for exportation to the United States\n under 19 U.S.C. § 1401a(b)(1), . . . the undisputed evidence\n demonstrates that [Midwest’s] sales were for exportation\n to the United States at the time of the sale.” Midwest-CBK,\n 578 F. Supp. 3d at 1304. Transaction value is the proper\n basis of appraisement.\n IV. CONCLUSION\n We have considered Midwest’s arguments and find\n them unpersuasive. Accordingly, the judgment of the Court\n of International Trade is affirmed.\n AFFIRMED", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11237551/", "author_raw": "ANDREWS, District Judge"}]}	PROST	CUNNINGHAM	ANDREWS	1		{"PROST": ", Circuit", "CUNNINGHAM": ", Circuit", "ANDREWS": ", District"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10770966/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,771,002	Crocs, Inc. v. Itc	2026-01-08	24-1300	U.S. Court of Appeals for the Federal Circuit	{"judges": "Before LOURIE and STOLL, Circuit Judges, and CHUN, District Judge.", "parties": "", "opinions": [{"author": "STOLL, Circuit Judge.", "type": "010combined", "text": "Case: 24-1300 Document: 74 Page: 1 Filed: 01/08/2026\n\n\n\n\n United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n CROCS, INC.,\n Appellant\n\n v.\n\n INTERNATIONAL TRADE COMMISSION,\n Appellee\n ______________________\n\n 2024-1300\n ______________________\n\n Appeal from the United States International Trade\n Commission in Investigation No. 337-TA-1270.\n ______________________\n\n Decided: January 8, 2026\n ______________________\n\n DAVID A. CAINE, Arnold & Porter Kaye Scholer LLP,\n Palo Alto, CA, argued for appellant. Also represented by\n MICHAEL BERTA, SEAN MICHAEL CALLAGY, ISAAC RAMSEY,\n San Francisco, CA; MARK SAMARTINO, Chicago, IL;\n ANDREW TUTT, Washington, DC.\n\n CARL PAUL BRETSCHER, Office of the General Counsel,\n United States International Trade Commission, Washing-\n ton, DC, argued for appellee. Also represented by AMANDA\n PITCHER FISHEROW, HOUDA MORAD.\n ______________________\n\fCase: 24-1300 Document: 74 Page: 2 Filed: 01/08/2026\n\n\n\n\n 2 CROCS, INC. v. ITC\n\n\n\n\n Before LOURIE and STOLL, Circuit Judges, and CHUN,\n District Judge. 1\n STOLL, Circuit Judge.\n Crocs, Inc. appeals the United States International\n Trade Commission’s finding of no violation of Section 337\n of the Tariff Act of 1930, as amended, 19 U.S.C. § 1337, by\n the respondents who participated in an evidentiary hear-\n ing: Orly Shoe Corp.; Hobby Lobby Stores, Inc.; and Quan-\n zhou ZhengDe Network Corp., d/b/a Amoji (collectively, the\n “Active Respondents”). Because Crocs’s appeal of the Com-\n mission’s no violation finding as to the Active Respondents\n is untimely, we dismiss in part.\n Crocs also appeals the Commission’s entry of a limited\n exclusion order against the respondents the Commission\n found to be in default: Jinjiang Anao Footwear Co., Ltd.;\n Huizhou Xinshunzu Shoes Co., Ltd.; Star Bay Group, Inc.;\n and La Modish Boutique (collectively, the “Defaulting Re-\n spondents”). Because the Commission did not abuse its\n discretion in entering a limited exclusion order under\n 19 U.S.C. § 1337(g)(1) against the Defaulting Respondents,\n we affirm in part.\n BACKGROUND\n Crocs owns U.S. Trademark Nos. 5,149,328\n and 5,273,875 (collectively, the “3D Marks”), which cover\n certain features of Crocs’s Classic Clog shoes. In June\n 2021, Crocs filed a complaint with the Commission, which\n it later amended, accusing multiple respondents of violat-\n ing Section 337 by importing, selling for importation, or\n selling in the United States after importation certain cas-\n ual footwear that infringed or diluted Crocs’s 3D Marks.\n\n\n\n 1 Honorable John H. Chun, District Judge, United\n States District Court for the Western District of Washing-\n ton, sitting by designation.\n\fCase: 24-1300 Document: 74 Page: 3 Filed: 01/08/2026\n\n\n\n\n CROCS, INC. v. ITC 3\n\n\n\n Crocs’s complaint requested relief in the form of a general\n exclusion order (GEO), or in the alterative, a limited exclu-\n sion order (LEO). In July 2021, the Commission instituted\n an Investigation based on Crocs’s complaint. Prior to the\n evidentiary hearing in the Investigation, the Commission\n found the four Defaulting Respondents “were in default\n and waived their rights to appear, to be served with docu-\n ments, and to contest the allegations in this investigation.”\n J.A. 14. The three Active Respondents participated in an\n evidentiary hearing before an Administrative Law Judge\n in September 2022. 2\n In January 2023, the Administrative Law Judge issued\n an Initial Determination finding no violation of Section 337\n because, among other reasons, (1) Crocs failed to prove that\n any of the respondents infringed the 3D Marks; (2) Crocs\n failed to prove that any of the respondents diluted the\n 3D Marks by blurring or tarnishment; and (3) Crocs\n waived its infringement contentions against the Defaulting\n Respondents. In April 2023, the Commission determined\n to review in part the Initial Determination, including the\n Administrative Law Judge’s findings on likelihood of con-\n fusion and dilution of the 3D Marks and whether Crocs\n waived its infringement contentions against the Defaulting\n Respondents.\n On September 14, 2023, the Commission issued its No-\n tice of Final Determination and corresponding Commission\n Opinion finding no violation of Section 337 by the Active\n Respondents because Crocs failed to prove likelihood of\n confusion, infringement, or dilution of the 3D Marks as to\n those respondents. For the Defaulting Respondents, the\n Commission “determined to set aside the [Initial Determi-\n nation]’s findings with respect to waiver as they do not\n\n\n 2 Throughout the Investigation, more than twenty\n other respondents were also terminated based on settle-\n ment agreements or consent orders.\n\fCase: 24-1300 Document: 74 Page: 4 Filed: 01/08/2026\n\n\n\n\n 4 CROCS, INC. v. ITC\n\n\n\n\n apply to issuance of an LEO or [cease and desist order\n (CDO)] against a party found in default, pursuant to\n 19 U.S.C. § 1337(g)(1).” J.A. 44. The Commission noted\n that “Section 337(g)(1) states that, once a party is found in\n default, ‘the Commission shall presume the facts alleged in\n the complaint to be true and shall, upon request, issue an\n exclusion from entry [i.e., LEO] or a cease and desist order,\n or both, limited to that person,’ unless the Commission\n finds the public interest factors weigh against exclusion.”\n J.A. 45 (alteration in original) (quoting 19 U.S.C.\n § 1337(g)(1)). The Commission reasoned that there was\n “thus no need [for Crocs] to present infringement conten-\n tions with respect to [the Defaulting R]espondents in\n Crocs’s prehearing brief to obtain relief limited to them un-\n der [S]ection 337(g)(1).” Id. As the Commission found the\n public interest factors did not preclude relief in this case, it\n issued an LEO against the Defaulting Respondents.\n On December 22, 2023, Crocs filed a notice of appeal.\n See ECF No. 1.\n DISCUSSION\n On appeal, Crocs challenges (1) the Commission’s no\n violation finding as to the Active Respondents, and (2) the\n Commission’s decision to only enter an LEO against the\n Defaulting Respondents instead of entering a GEO, as\n Crocs requested. The Commission responds that\n (1) Crocs’s appeal against the Active Respondents is time-\n barred by Section 337(c), and (2) the Commission did not\n abuse its discretion in issuing only an LEO against the De-\n faulting Respondents. We take each issue in turn.\n I\n According to Crocs, its appeal is timely because the\n “Commission issued its one and only final determination in\n the Investigation below on September 14, 2023,” which\n “triggered a 60-day Presidential review period, rendering\n the determination non-final . . . until November 14, 2023.”\n\fCase: 24-1300 Document: 74 Page: 5 Filed: 01/08/2026\n\n\n\n\n CROCS, INC. v. ITC 5\n\n\n\n Appellant’s Br. 83. Thus, Crocs argues, the 60-day appeal\n window set in Section 337(c) did not start to run until No-\n vember 14, 2023, rendering its December 22, 2023 notice of\n appeal timely as to the Active Respondents. We disagree.\n The language of Section 337 and our case law support\n dismissing Crocs’s appeal as to the Active Respondents.\n Our jurisdiction to hear appeals from the Commission is\n governed by 28 U.S.C. § 1295(a)(6): “The United States\n Court of Appeals for the Federal Circuit shall have exclu-\n sive jurisdiction . . . to review the final determinations of\n the United States International Trade Commission relat-\n ing to unfair practices in import trade[] made under [S]ec-\n tion 337.” Section 337(c) states in part that:\n Any person adversely affected by a final determina-\n tion of the Commission under subsection (d), (e), (f),\n or (g) may appeal such determination, within\n 60 days after the determination becomes final, to\n the United States Court of Appeals for the Federal\n Circuit for review in accordance with chapter 7 of\n title 5. Notwithstanding the foregoing provisions of\n this subsection, Commission determinations under\n subsections (d), (e), (f), and (g) with respect to its\n findings on the public health and welfare, competi-\n tive conditions in the United States economy, the\n production of like or directly competitive articles in\n the United States, and United States consumers,\n the amount and nature of bond, or the appropriate\n remedy shall be reviewable in accordance with sec-\n tion 706 of title 5. Determinations by the Commis-\n sion under subsections (e), (f), and (j) with respect\n to forfeiture of bonds and under subsection (h) with\n respect to the imposition of sanctions for abuse of\n discovery or abuse of process shall also be reviewa-\n ble in accordance with section 706 of title 5.\n\fCase: 24-1300 Document: 74 Page: 6 Filed: 01/08/2026\n\n\n\n\n 6 CROCS, INC. v. ITC\n\n\n\n\n 19 U.S.C. § 1337(c) (emphasis added). Prior to a Commis-\n sion finding of a violation becoming final, however, there is\n a 60-day presidential review period:\n (1) If the Commission determines that there is a vi-\n olation of this section, . . . it shall—\n ...\n (B) transmit to the President a copy of such\n determination and the action taken under\n subsection (d), (e), (f), (g), or (i), with respect\n thereto, together with the record upon which\n such determination is based.\n ...\n (4) If the President does not disapprove such deter-\n mination within such 60-day period, or if he noti-\n fies the Commission before the close of such period\n that he approves such determination, then, for pur-\n poses of paragraph (3) and subsection (c) such de-\n termination shall become final on the day after the\n close of such period or the day on which the Presi-\n dent notifies the Commission of his approval, as\n the case may be.\n 19 U.S.C. § 1337(j) (emphasis added).\n In Allied Corp. v. United States International Trade\n Commission, 782 F.2d 982 (Fed. Cir. 1986), two orders is-\n sued from the Commission: (1) a July 6, 1984 order adopt-\n ing an Administrative Law Judge’s determination that two\n of Allied’s patents were invalid, which was not subject to a\n presidential review period, and (2) an October 15, 1984 or-\n der excluding articles that infringed Allied’s valid patent,\n which was subject to a 60-day presidential review period.\n See 782 F.2d at 983. Allied filed its notice of appeal on Feb-\n ruary 13, 1985, which was within the 60-day appeal win-\n dow that started after the presidential review period for\n the second order was complete. However, our court\n\fCase: 24-1300 Document: 74 Page: 7 Filed: 01/08/2026\n\n\n\n\n CROCS, INC. v. ITC 7\n\n\n\n dismissed Allied’s appeal as untimely. Because “Allied pre-\n vailed in respect [to the valid] patent and the exclusion or-\n der, it could not appeal from that order.” Id. This left only\n the July 6, 1984 order invalidating two of Allied’s patents,\n which “was final as of July 6, 1984, there being no provision\n for Presidential review, or for other administrative pro-\n ceedings” relevant to that order. Id. at 984. But Allied’s\n notice of appeal was filed more than 60 days after July 6,\n 1984. Allied tried to argue “that a § 337(c) proceeding is a\n single entity and [thus] it was waiting for expiration of the\n Presidential review period” on the entire investigation to\n end before it appealed. Id. We held that this argument\n was “without merit.” Id.\n In Broadcom Corp. v. International Trade Commission,\n 542 F.3d 894 (Fed. Cir. 2008), the Commission found no vi-\n olation on two patents, after which Broadcom filed the\n named appeal; however, the Commission had also issued\n an exclusion order barring the importation of Qualcomm’s\n accused products based on infringement of a different pa-\n tent, which Qualcomm appealed as part of a different case\n before our court after the presidential review period for the\n exclusion order was complete. See 542 F.3d at 896. Qual-\n comm then tried to have Broadcom’s appeal dismissed as\n premature because, “[i]n Qualcomm’s view, the Commis-\n sion’s order did not become final and appealable until after\n the President declined review of the Commission’s exclu-\n sion order based on the [infringed] patent.” Id. We relied\n on Allied to hold that “once the Commission adopted the\n administrative law judge’s noninfringement determina-\n tion, there was no further opportunity for review of that\n decision other than by way of review in this court. Broad-\n com therefore did not prematurely file its petition for re-\n view once the Commission issued its order.” Id. at 896–97.\n Thus, our case law instructs that in investigations that\n have a mixed result of a violation finding (subject to a pres-\n idential review period prior to the 60-day appeal window\n starting) and a no-violation finding (not subject to a\n\fCase: 24-1300 Document: 74 Page: 8 Filed: 01/08/2026\n\n\n\n\n 8 CROCS, INC. v. ITC\n\n\n\n\n presidential review period and so final for the purposes of\n starting the 60-day appeal window at the time it issues),\n the notices of appeal for the different findings have distinct\n appeal windows. Here, as to the Active Respondents, when\n the Commission’s determination of no violation was en-\n tered there was no presidential review period and no other\n administrative proceedings for that finding (unlike for the\n entry of an exclusion order against the Defaulting Re-\n spondents). Thus, the no violation finding was a final de-\n cision of the Commission on the day it issued and the 60-\n day period in Section 337(c) to file a notice of appeal began\n to run. That 60-day period ended on November 13, 2023,\n but Crocs did not file its notice of appeal until December 22,\n 2023.\n Crocs argues that, because the Commission chose to is-\n sue both its decision of no violation against the Active Re-\n spondents and its decision to issue an exclusion order\n against the Defaulting Respondents in the same writing—\n i.e., the Commission issued only one Notice of Final Deter-\n mination and Commission Opinion—then we must treat it\n as a single final determination that cannot be parsed for\n the purposes of presidential review, and thus also cannot\n be parsed for the appeal window. But Crocs does not point\n to any case law from this court that supports this argu-\n ment. While Crocs seeks to analogize this case to Young\n Engineers, Inc. v. United States International Trade Com-\n mission, 721 F.2d 1305 (Fed. Cir. 1983), Young Engineers\n does not stand for a different proposition from what we de-\n scribe above for investigations with mixed violation re-\n sults. Indeed, Young Engineers has no bearing on these\n types of investigations, as it did not include a no violation\n finding. Instead, Young Engineers dealt with finality is-\n sues arising from when the President, during the presiden-\n tial review period, disapproved in part of the relief the\n Commission granted and remanded the entire remedy back\n to the Commission to modify the exclusion orders entered\n\fCase: 24-1300 Document: 74 Page: 9 Filed: 01/08/2026\n\n\n\n\n CROCS, INC. v. ITC 9\n\n\n\n against respondents. See Young Engineers, 721 F.2d\n at 1308–09.\n Moreover, even Crocs seems to concede that if the Com-\n mission had issued two different writings—even if those or-\n ders came out on the same day—then under our court’s\n precedent the time period to file a notice of appeal would\n be different for the two sets of respondents. See Appellant’s\n Reply Br. 36 (“In future investigations, the Commission\n can ensure that affected parties are able to appeal adverse\n decisions quickly by issuing two final determinations, one\n containing the adverse findings and conclusions and the\n other containing the favorable findings and conclusions as\n well as the remedies.”). But this merely elevates form over\n substance.\n Crocs also summarily argues without explication that\n Harrow v. Department of Defense, 601 U.S. 480 (2024), ap-\n plies to Section 337(c) and, thus, the deadlines in 19 U.S.C.\n § 1337(c) are not jurisdictional. See Appellant’s Br. 82. We\n need not decide this issue or whether equitable tolling\n could apply to this case because, even assuming that the\n 60-day period in Section 337(c) is not jurisdictional and one\n could equitably toll this statute, Crocs forfeited its right to\n argue it was entitled to such equitable tolling here. Despite\n citing Harrow to argue that the statute was not jurisdic-\n tional, Crocs failed to include any argument or evidence on\n tolling in its opening brief. See Appellant’s Br. 82–83; see\n also SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d\n 1312, 1319 (Fed. Cir. 2006) (“Our law is well established\n that arguments not raised in the opening brief are\n waived.”).\n ***\n We thus hold that Allied and Broadcom are controlling\n where the Commission issues one writing that contains\n both a no violation finding against one set of respondents\n and enters an exclusion order against another set of re-\n spondents. Accordingly, there will be different deadlines\n\fCase: 24-1300 Document: 74 Page: 10 Filed: 01/08/2026\n\n\n\n\n 10 CROCS, INC. v. ITC\n\n\n\n\n to file an appeal for such decisions. Here, the no violation\n finding against the Active Respondents was final as of the\n day it issued because it was not subject to presidential re-\n view or any other administrative proceedings, and so the\n 60-day period to file a notice of appeal began to run on Sep-\n tember 14, 2023. Thus, the notice of appeal for the Com-\n mission’s final decision of no violation by the Active\n Respondents was due by November 13, 2023, but Crocs did\n not file its notice of appeal until December 22, 2023.\n Crocs’s appeal of the no violation finding is thus dismissed\n as untimely.\n II\n Turning to Crocs’s request for a GEO instead of an LEO\n based on the Commission’s entry of a violation against the\n Defaulting Respondents, 3 Crocs argues that the Commis-\n sion offered “no explanation for its finding and provided no\n reasoning to justify its conclusion” that Crocs was not enti-\n tled to a GEO. Appellant’s Br. 23. We disagree.\n “[T]he Commission has broad discretion in selecting\n the form, scope and extent of the remedy, and judicial re-\n view of its choice of remedy necessarily is limited.” Visco-\n fan, S.A. v. U.S. Int’l Trade Comm’n, 787 F.2d 544, 548\n (Fed. Cir. 1986). “Stated another way, because the Com-\n mission is ‘the expert body to determine what remedy is\n necessary,’ it has ‘wide latitude for judgment and the\n courts will not interfere except where the remedy selected\n\n\n\n 3 “A limited exclusion order is ‘limited’ in that it only\n applies to the specific parties before the Commission in the\n investigation. In contrast, a general exclusion order bars\n the importation of infringing products by everyone, regard-\n less of whether they were respondents in the Commission’s\n investigation.” Yingbin-Nature (Guangdong) Wood Indus.\n Co. v. Int’l Trade Comm’n, 535 F.3d 1322, 1330 (Fed. Cir.\n 2008) (citation omitted).\n\fCase: 24-1300 Document: 74 Page: 11 Filed: 01/08/2026\n\n\n\n\n CROCS, INC. v. ITC 11\n\n\n\n has no reasonable relation to the unlawful practices found\n to exist.’” Philip Morris Prods. S.A. v. Int’l Trade Comm’n,\n 63 F.4th 1328, 1339–40 (Fed. Cir. 2023) (quoting Viscofan,\n 787 F.2d at 548). “This court therefore must affirm the\n Commission’s choice of remedy unless the action is ‘arbi-\n trary, capricious, an abuse of discretion, or otherwise not\n in accordance with law.’” Id. at 1340 (quoting Spansion,\n Inc. v. Int’l Trade Comm’n, 629 F.3d 1331, 1358 (Fed. Cir.\n 2010)).\n In setting aside the Administrative Law Judge’s no vi-\n olation finding for the Defaulting Respondents based on\n waiver, the Commission explained that such waiver would\n “not apply to issuance of an LEO or CDO against a party\n found in default, pursuant to 19 U.S.C. § 1337(g)(1).”\n J.A. 44. Instead, under Section 337(g)(1), the Commission\n clarified that it was to assume the facts alleged in Crocs’s\n complaint against the Defaulting Respondents were true\n and it “shall . . . issue an exclusion from entry.” J.A. 45.\n Thus, the Commission described that it was only issuing\n an exclusion order against the Defaulting Respondents\n based on Section 337(g)(1). Section 337(g)(1) states:\n (1) If—\n (A) a complaint is filed against a person under this\n section;\n (B) the complaint and a notice of investigation are\n served on the person;\n (C) the person fails to respond to the complaint and\n notice or otherwise fails to appear to answer the\n complaint and notice;\n (D) the person fails to show good cause why the per-\n son should not be found in default; and\n (E) the complainant seeks relief limited solely to\n that person;\n\fCase: 24-1300 Document: 74 Page: 12 Filed: 01/08/2026\n\n\n\n\n 12 CROCS, INC. v. ITC\n\n\n\n\n the Commission shall presume the facts alleged in\n the complaint to be true and shall, upon request,\n issue an exclusion from entry or a cease and desist\n order, or both, limited to that person unless, after\n considering the effect of such exclusion or order\n upon the public health and welfare, competitive\n conditions in the United States economy, the pro-\n duction of like or directly competitive articles in the\n United States, and United States consumers, the\n Commission finds that such exclusion or order\n should not be issued.\n 19 U.S.C. § 1337(g)(1) (emphases added). Accordingly,\n pursuant to the language of the statute, after finding that\n any waiver by Crocs of its infringement contentions against\n the Defaulting Respondents was irrelevant because the\n Commission had to accept the complaint allegations as true\n and enter an exclusion order under Section 337(g)(1), the\n Commission could only issue an exclusion order “limited”\n to those respondents it had found in default—i.e., an LEO. 4\n Thus, we hold that the Commission provided a sufficient\n basis for its issuance of an LEO, and its actions were not\n arbitrary, capricious, an abuse of its discretion, or other-\n wise not in accordance with law.\n\n\n\n\n 4 Crocs does not argue it could avail itself of\n 19 U.S.C. § 1337(g)(2), which allows for the entry of a GEO\n in an investigation involving default only if all respondents\n to the investigation do not appear. 19 U.S.C. § 1337(g)(2)\n (explaining that a GEO “may be issued if—(A) no person\n appears to contest an investigation concerning a violation\n of the provisions of this section, (B) such a violation is es-\n tablished by substantial, reliable, and probative evidence,\n and (C) the requirements of subsection (d)(2) are met.”).\n\fCase: 24-1300 Document: 74 Page: 13 Filed: 01/08/2026\n\n\n\n\n CROCS, INC. v. ITC 13\n\n\n\n CONCLUSION\n We have considered Crocs’s remaining arguments and\n find them unpersuasive. For the foregoing reasons, we dis-\n miss Crocs’s appeal as to the Commission’s finding of no\n violation by the Active Respondents and affirm the Com-\n mission’s decision entering an LEO against the Defaulting\n Respondents.\n DISMISSED-IN-PART AND AFFIRMED-IN-PART\n COSTS\n Costs to Appellee.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11237587/", "author_raw": "STOLL, Circuit Judge."}]}	LOURIE	STOLL	CHUN	1		{"LOURIE": ", Circuit", "STOLL": ", Circuit", "CHUN": ", District"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10771002/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,773,631	Young v. Collins	2026-01-13	24-1833	U.S. Court of Appeals for the Federal Circuit	{"judges": "Before TARANTO, BRYSON, and CUNNINGHAM, Circuit Judges.", "parties": "", "opinions": [{"author": "TARANTO, Circuit Judge.", "type": "010combined", "text": "Case: 24-1833 Document: 43 Page: 1 Filed: 01/13/2026\n\n\n\n\n United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n JAMES K. YOUNG,\n Claimant-Appellant\n\n v.\n\n DOUGLAS A. COLLINS, SECRETARY OF\n VETERANS AFFAIRS,\n Respondent-Appellee\n ______________________\n\n 2024-1833\n ______________________\n\n Appeal from the United States Court of Appeals for\n Veterans Claims in No. 23-5136, Judge Joseph L. Toth.\n ______________________\n\n Decided: January 13, 2026\n ______________________\n\n KENNETH DOJAQUEZ, Carpenter Chartered, Topeka,\n KS, argued for claimant-appellant. Also represented by\n KENNETH M. CARPENTER.\n\n MEREDYTH COHEN HAVASY, Commercial Litigation\n Branch, Civil Division, United States Department of Jus-\n tice, Washington, DC, argued for respondent-appellee.\n Also represented by MARTIN F. HOCKEY, JR., PATRICIA M.\n MCCARTHY, YAAKOV ROTH; MATTHEW ALBANESE, BRIAN D.\n GRIFFIN, Office of General Counsel, United States Depart-\n ment of Veterans Affairs, Washington, DC.\n ______________________\n\fCase: 24-1833 Document: 43 Page: 2 Filed: 01/13/2026\n\n\n\n\n 2 YOUNG v. COLLINS\n\n\n\n\n Before TARANTO, BRYSON, and CUNNINGHAM, Circuit\n Judges.\n TARANTO, Circuit Judge.\n James Young served in the military in the mid-1980s.\n In 1988, as a veteran, he applied to what soon became the\n Department of Veterans Affairs (VA) for service-connected-\n disability benefits, see 38 U.S.C. §§ 1110, 1131, based on\n asserted head injuries suffered in a car accident during ser-\n vice. In 1999, VA’s Board of Veterans’ Appeals (Board) de-\n nied the claim. More than two decades later, Mr. Young\n moved the Board to vacate its 1999 decision pursuant to 38\n C.F.R. § 20.1000(a), alleging that he had been denied due\n process. The Board denied the motion, and Mr. Young ap-\n pealed to the Court of Appeals for Veterans Claims (Veter-\n ans Court). The Veterans Court dismissed the appeal,\n reasoning that (1) the appeal was untimely insofar as it\n sought review of the 1999 Board decision, and (2) although\n the appeal was timely as to the vacatur denial, that denial\n was not an appealable decision. See Young v. McDonough,\n No. 23-5136, 2024 WL 706809, at 1–2 (Vet. App. Feb. 21,\n 2024) (Decision).\n Mr. Young appeals to this court, challenging the Veter-\n ans Court’s second rationale. He argues that the Board’s\n denial of a motion to vacate under section 20.1000(a) is ap-\n pealable to the Veterans Court. We conclude otherwise and\n therefore affirm the Veterans Court’s dismissal.\n I\n A\n After Mr. Young filed his head-injuries claim in 1988,\n the relevant regional office (RO) of VA denied the claim in\n 1991, and he appealed to the Board. Several years of Board\n proceedings followed the RO’s 1991 claim denial. In 1997,\n the Board ordered that Mr. Young undergo a medical ex-\n amination by VA. See J.A. 12. On two occasions, according\n\fCase: 24-1833 Document: 43 Page: 3 Filed: 01/13/2026\n\n\n\n\n YOUNG v. COLLINS 3\n\n\n\n to Mr. Young’s present allegations (which we may assume\n to be true for our purposes here), the Board directed the RO\n to search for certain records indicating that Mr. Young’s\n injuries were incurred in the line of duty, but the RO did\n not do so, and Mr. Young told the Board of that noncompli-\n ance with its order in June 1999. See J.A. 14–15. In July\n 1999, the Board, without commenting on Mr. Young’s alle-\n gation of RO noncompliance, issued a final decision that\n denied Mr. Young’s claim because he had failed to appear\n for two scheduled VA examinations ordered by the Board.\n J.A. 10–13; see 38 C.F.R. § 3.655(b) (1998). Mr. Young did\n not appeal that Board decision.\n According to Mr. Young, he later filed a disability claim\n for his head injuries (seemingly in 2012), necessary medi-\n cal examination(s) occurred, and VA granted the claim in\n 2017, finding “service connection effective August 17,\n 2012.” J.A. 15.\n B\n In 2022, Mr. Young, hoping to secure an earlier effec-\n tive date corresponding to his 1988 claim submission, filed\n with the Board a motion to vacate its 1999 claim denial\n pursuant to 38 C.F.R. § 20.1000(a). J.A. 14–15. That pro-\n vision states in relevant part:\n An appellate decision may be vacated by the Board\n of Veterans’ Appeals at any time upon request of\n the appellant or his or her representative, or on the\n Board’s own motion, on the following grounds:\n (a) Denial of due process. Examples of circum-\n stances in which denial of due process of law will\n be conceded are:\n (1) When the appellant was denied his or her right\n to representation through action or inaction by De-\n partment of Veterans Affairs or Board of Veterans’\n Appeals personnel,\n\fCase: 24-1833 Document: 43 Page: 4 Filed: 01/13/2026\n\n\n\n\n 4 YOUNG v. COLLINS\n\n\n\n\n (2) When there was a prejudicial failure to afford\n the appellant a personal hearing. (Where there\n was a failure to honor a request for a hearing and\n a hearing is subsequently scheduled, but the appel-\n lant fails to appear, the decision will not be va-\n cated.), and\n (3) For a legacy appeal, as defined in § 19.2 of this\n chapter, when a Statement of the Case or required\n Supplemental Statement of the Case was not pro-\n vided.\n 38 C.F.R. § 20.1000. Section 20.1000(b), not at issue here,\n permits vacatur of the allowance of benefits for fraud on\n the Board. See id.\n Mr. Young invoked only the due-process basis of sec-\n tion 20.1000(a) for his motion. He asserted that the Board\n in 1999 had denied him due process by failing to ensure\n that the RO complied with the Board’s orders to search for\n records. J.A. 14. On May 1, 2023, the Board denied\n Mr. Young’s motion because the asserted error was “a duty\n to assist error rather than a due process error.” J.A. 16. 1\n C\n Mr. Young filed a notice of appeal to the Veterans\n Court 119 days later, on August 28, 2023. Decision, at 1;\n J.A. 18. The Veterans Court’s jurisdictional statute, 38\n\n\n\n 1 The Veterans Court characterized the denial as the\n Board Chairman’s action, e.g., Decision, at 1, even though\n the denial is signed by a Veterans Law Judge who was not\n the Chairman, J.A. 16–17, and section 20.1000 gives the\n Board the specified authority. The parties before us char-\n acterize the denial as the action of the Board, Young’s\n Opening Br. at 2; Secretary’s Br. at 2–3, and neither party\n suggests that the Board/Chairman distinction matters in\n this appeal. We refer to the ruling as the Board’s.\n\fCase: 24-1833 Document: 43 Page: 5 Filed: 01/13/2026\n\n\n\n\n YOUNG v. COLLINS 5\n\n\n\n U.S.C. § 7252, provides for “exclusive jurisdiction to review\n decisions of the Board” subject to a 120-day time bar found\n in 38 U.S.C. § 7266(a). The Secretary moved to dismiss,\n arguing that (1) Mr. Young’s appeal was untimely to the\n extent he was appealing the 1999 Board decision and\n (2) the Board’s denial of vacatur was not itself an appeala-\n ble decision, citing for the latter proposition the Veterans\n Court’s decision in Harms v. Nicholson, 20 Vet. App. 238,\n 240 (2006) (en banc) (Harms CAVC), affirmed, 489 F.3d\n 1377 (Fed. Cir. 2007). J.A. 19–22. Mr. Young opposed dis-\n missal, clarifying that he “did not and [was] not appealing\n the . . . 1999 decision.” J.A. 37. Rather, he contended that\n the Board’s denial of his section 20.1000(a) motion was an\n appealable decision. J.A. 36–37.\n The Veterans Court granted the Secretary’s motion to\n dismiss. The appeal of the denial of the motion to vacate\n was within the 120 days allowed by the appeal statute, so\n the only issue was whether that denial was an appealable\n decision. The Veterans Court held that it was not. It rea-\n soned that “[a] ‘decision’ of the Board, for purposes of [the\n Veterans Court’s] jurisdiction, is a decision with respect to\n the benefit sought by the veteran”—and that a denial of a\n (mere) motion to vacate makes no such decision about the\n benefit sought and is therefore not an appealable decision.\n Decision, at 2 (citation omitted). The Veterans Court fur-\n ther observed that “to permit the appeal of a denial of a\n motion to vacate—a procedural ruling—24 years after the\n underlying Board decision . . . ‘would render meaningless\n the 120-day statutory period for filing appeals.’” Id. (quot-\n ing Harms CAVC, 20 Vet. App. at 243).\n Mr. Young timely appealed the Veterans Court’s dis-\n missal. We have jurisdiction under 38 U.S.C. § 7292(a), (c).\n II\n Mr. Young challenges a legal ruling by the Veterans\n Court and therefore presents a question within our juris-\n diction under 38 U.S.C. § 7292(d)(2). Mr. Young contends\n\fCase: 24-1833 Document: 43 Page: 6 Filed: 01/13/2026\n\n\n\n\n 6 YOUNG v. COLLINS\n\n\n\n\n that, contrary to the Veterans Court’s conclusion, the\n Board’s denial of a motion to vacate under section\n 20.1000(a) is a “decision” of the Board reviewable by the\n Veterans Court under 38 U.S.C § 7252. We answer such\n legal questions de novo. Flores-Vazquez v. McDonough,\n 996 F.3d 1321, 1325 (Fed. Cir. 2021). Mr. Young’s argu-\n ment, we conclude, is foreclosed by controlling precedent,\n which Mr. Young has not persuasively shown to merit a\n narrow reading so as to distinguish this case based on the\n legal authorities he invokes.\n A\n In Harms v. Nicholson, 489 F.3d 1377 (Fed. Cir. 2007)\n (Harms CAFC), this court affirmed the Veterans Court’s\n dismissal of an appeal from the Board’s denial of a motion\n to vacate filed under 38 C.F.R. § 20.904(a) (2005)—which\n was later recodified without material change as section\n 20.1000(a). In Harms CAFC, the court reached that result\n by applying the reasoning of the Supreme Court’s decision\n in Interstate Commerce Commission v. Brotherhood of Lo-\n comotive Engineers, 482 U.S. 270 (1987). Harms CAFC,\n 489 F.3d at 1379. Those decisions control the present case.\n Locomotive Engineers involved an unsuccessful chal-\n lenge by several labor unions to the Interstate Commerce\n Commission’s approval of certain railroad mergers. 482\n U.S. at 273–74. The unions moved for reconsideration of\n that decision pursuant to a statutory provision that author-\n ized the Commission “at any time” to “reopen and recon-\n sider” a decision because of “material error, new evidence,\n or substantially changed circumstances.” See id. at 276–\n 78; 49 U.S.C. § 10327(g)(1) (1978). In particular, the un-\n ions invoked only the “material error” ground, alleging that\n the Commission’s original decision was legally (and mate-\n rially) erroneous. See Locomotive Engineers, 482 U.S. at\n 276, 278–79. The Commission denied reconsideration, and\n the unions appealed to the D.C. Circuit. Id. A statute im-\n posed a 60-day deadline for bringing appeals from a “final\n\fCase: 24-1833 Document: 43 Page: 7 Filed: 01/13/2026\n\n\n\n\n YOUNG v. COLLINS 7\n\n\n\n order” of the Commission; the unions’ appeal was brought\n within 60 days of the Commission’s denial of reconsidera-\n tion, but more than 60 days after the Commission’s original\n decision. Id. at 276–77. The D.C. Circuit concluded that\n the appeal could be heard. See id. at 276.\n The Supreme Court disagreed, ruling (as relevant\n here) that the Commission’s denial of the motion to reopen\n and reconsider was unreviewable. Id. at 277–80. The\n Court explained that “where no new data but only ‘material\n error’ has been put forward as the basis for reopening, an\n appeal places before the courts precisely the same sub-\n stance that could have been brought there by appeal from\n the original order” and “judicial review would serve only\n the peculiar purpose of extending indefinitely the time\n within which seriously mistaken agency orders can be judi-\n cially overturned.” Id. at 279–280 (emphasis in original).\n The Court distinguished the other reopening grounds spec-\n ified in the reopening statute, concluding that where reo-\n pening is sought “on the basis of new evidence or changed\n circumstances[,] review is available.” Id. at 284.\n The Veterans Court in Harms CAVC applied Locomo-\n tive Engineers to what is now section 20.1000(a). 20 Vet.\n App. at 243–44. Harms CAVC concerned a veteran’s mo-\n tion to vacate made more than 120 days after an unfavora-\n ble Board decision. Id. at 240–41. The motion alleged that\n the Board had denied him due process and erroneously re-\n quired certain evidence. See Harms CAFC, 489 F.3d at\n 1378. When the Board denied the motion to vacate, the\n veteran appealed within about a month. Harms CAVC, 20\n Vet. App. at 241. He sought review of both the denial and\n the underlying merits decision, arguing that “a decision on\n a motion to vacate is a final Board decision” reviewable un-\n der 38 U.S.C. § 7252. Id. The Veterans Court disagreed,\n and dismissed the appeal, reasoning that the appeal from\n the underlying Board decision was untimely and that the\n Board’s denial of the motion to vacate was not appealable,\n as it was “not substantively distinguishable” from the\n\fCase: 24-1833 Document: 43 Page: 8 Filed: 01/13/2026\n\n\n\n\n 8 YOUNG v. COLLINS\n\n\n\n\n unappealable denial of reconsideration in Locomotive En-\n gineers. Id. at 244 (citation omitted).\n The veteran appealed, and we affirmed. Harms CAFC,\n 489 F.3d at 1377. We held that a mere denial of a motion\n to vacate under what is now section 20.1000(a)—which\n does not even purport to delay the finality of the underlying\n decision—does not constitute “a new Board decision on the\n merits of the original claims” and therefore is not itself ap-\n pealable. See id. at 1378–79. And we agreed with the Vet-\n erans Court’s application of Locomotive Engineers to such\n a denial, lest an essentially procedural mechanism “open\n an avenue to perpetual review of Board decisions.” Id. at\n 1379; see id. (citing Locomotive Engineers, 482 U.S. at 280–\n 81).\n This case comes within the rule of Harms CAFC that\n the Board’s denial of a motion to vacate under section\n 20.1000(a) is not itself reviewable. Mr. Young’s motion to\n vacate was predicated entirely on an allegation known to\n the Board in 1999 (the RO’s purported failure to search for\n certain records). There is no plausible argument here—if\n there ever could be under section 20.1000(a)—that the mo-\n tion rests on “new evidence” or “changed circumstances” so\n as to put the case outside the reach of Locomotive Engi-\n neers and, by extension, Harms CAFC. See Locomotive En-\n gineers, 482 U.S. at 284. Moreover, the veteran in Harms\n CAFC waited only about a year to move the Board to vacate\n its merits decision, while Mr. Young waited 23 years. Com-\n pare 489 F.3d at 1377–78 with J.A. 14–15. This case thus\n highlights the concern about “perpetual review” underlying\n Harm CAFC, 489 F.3d at 1379, and Locomotive Engineers,\n as a belated request like Mr. Young’s would likely involve\n different counsel from the original case, faded memories, or\n incomplete records, all increasing the risk of waste and er-\n ror. Finally, a holding of reviewability here would effec-\n tively subject the 120-day time bar of 38 U.S.C. § 7266 to a\n “proviso” that, as to an allegation of due process error,\n reads: “judicial review may be sought at any time.”\n\fCase: 24-1833 Document: 43 Page: 9 Filed: 01/13/2026\n\n\n\n\n YOUNG v. COLLINS 9\n\n\n\n Locomotive Engineers, 482 U.S. at 279–80. If that result\n was unwarranted in Locomotive Engineers, where two dif-\n ferent statutes provided, respectively, for the appeal dead-\n line and for reopening at any time, id. at 277–78, the same\n conclusion seems to follow a fortiori where, as here, the va-\n catur authority exists only by a regulation—one that does\n not delay the finality of the underlying decision.\n Mr. Young urges us to ignore Harms CAFC because,\n there, the veteran was openly seeking review of both the\n Board’s denial of vacatur and the underlying merits deci-\n sion whereas Mr. Young is not appealing the Board’s 1999\n decision. Young’s Opening Br. at 12. That difference is\n immaterial. In Harms CAFC, we squarely held that a va-\n catur denial is not an appealable decision, rejecting the\n same argument Mr. Young makes here that a “decision to\n deny the request to vacate is a new final decision.” Harms\n CAFC, 489 F.3d at 1378. That holding is independent of\n whether an appeal of the underlying decision would still be\n timely or whether the veteran has chosen to appeal the un-\n derlying decision (in a timely or untimely manner) as well\n as the vacatur denial. It makes no sense that the rule of\n Harms CAFC and Locomotive Engineers, which precludes\n indefinite reviewability of challenges available at the time\n of the underlying decision, Harms CAFC, 489 F.3d at\n 1378–79; Locomotive Engineers, 482 U.S. at 278–80, would\n be subject to evasion by the appellant’s simple choice to re-\n frain from pressing an out-of-time appeal of the underlying\n decision.\n B\n Mr. Young contends that this case presents a question\n of first impression because he asks us to interpret the Vet-\n erans Court’s jurisdictional statute, 38 U.S.C. § 7252, in\n light of several other statutory and regulatory provisions\n assertedly not brought to this court’s attention in Harms\n CAFC. Young’s Reply Br. at 2–5. But Mr. Young cites\n nothing to support the notion that such new arguments are\n\fCase: 24-1833 Document: 43 Page: 10 Filed: 01/13/2026\n\n\n\n\n 10 YOUNG v. COLLINS\n\n\n\n\n a basis for a panel to depart from directly on-point prece-\n dent—where the precedent is firmly founded on a Supreme\n Court decision and there has been no intervening change\n in law. See Preminger v. Secretary of Veterans Affairs, 517\n F.3d 1299, 1309 (Fed. Cir. 2008) (permitting departure\n from precedent only after a sufficient intervening change\n in governing law); see also Deckers Corp. v. United States,\n 752 F.3d 949, 965 (Fed. Cir. 2014). In Harms CAFC, we\n squarely concluded that the Veterans Court had not “mis-\n interpreted its jurisdiction under 38 U.S.C. §§ 7252(a) and\n 7266(a),” and we affirmed a Veterans Court decision that\n rejected some of the same arguments about regulatory pro-\n visions as those Mr. Young makes to us. 489 F.3d at 1378;\n see Harms CAVC, 20 Vet. App. at 244–45. And even if a\n panel may properly give a precedent an available narrow\n reading in light of persuasive new arguments, Mr. Young\n has not shown that this is a case for such action. The new\n arguments presented by Mr. Young do not undermine the\n straightforward application of Harms CAFC to this case.\n 1\n Mr. Young primarily relies on 38 U.S.C. § 511(a),\n which uses the word “decide” to describe actions of the Sec-\n retary “affect[ing]” benefits and so, according to Mr. Young,\n defines the scope of a reviewable “decision” of the Board\n under the Veterans Court’s jurisdictional statute, 38\n U.S.C. § 7252(a). Young’s Opening Br. at 6–10. The stat-\n ute itself refutes Mr. Young’s argument.\n Section 511(a) states:\n The Secretary shall decide all questions of law and\n fact necessary to a decision by the Secretary under\n a law that affects the provision of benefits by the\n Secretary to veterans or the dependents or survi-\n vors of veterans. Subject to subsection (b), the deci-\n sion of the Secretary as to any such question shall\n be final and conclusive and may not be reviewed by\n\fCase: 24-1833 Document: 43 Page: 11 Filed: 01/13/2026\n\n\n\n\n YOUNG v. COLLINS 11\n\n\n\n any other official or by any court, whether by an\n action in the nature of mandamus or otherwise.\n 38 U.S.C. § 511(a) (emphases added). The second sentence\n of that provision states a general rule of unreviewability.\n Section 511(b) then states exceptions, of which only one is\n relevant here: “The second sentence of subsection (a) does\n not apply to— . . . (4) matters covered by chapter 72 of this\n title,” which is the chapter that defines the appellate juris-\n diction of the Veterans Court. Id. § 511(b)(4). 2\n As a straightforward textual matter, section 511(a)\n does not affirmatively make a decision reviewable. It sets\n a default bar on reviewability. Section 511(b) then creates\n an exception to that bar for, as relevant here, what is made\n reviewable in chapter 72. Thus, contrary to Mr. Young’s\n assertion, any affirmative grant of reviewability, and its\n definition, must come from chapter 72, not section 511.\n The mere fact that a Board action is a “decision” under sec-\n tion 511(a) does not make it reviewable by the Veterans\n Court. Indeed, Mr. Young’s contrary conclusion makes\n nonsense of the structure of section 511 and makes subsec-\n tion (b)(4) surplusage.\n Mr. Young gets no more help from 38 U.S.C. § 7104(a).\n See Young’s Opening Br. at 8–10. Section 7104(a) states\n that the “[f]inal decisions” in matters “which under section\n 511(a) . . . [are] subject to decision by the Secretary” shall\n be made by the Board. 38 U.S.C. § 7104(a). That language\n says no more than that, for any “decision” (by the Secre-\n tary) covered by section 511(a), it is the Board that makes\n\n\n\n 2 Chapter 72 of title 38, called “United States Court\n of Appeals for Veterans Claims,” prescribes the jurisdiction\n and procedures of the Veterans Court, among other things.\n See 38 U.S.C. §§ 7251–7299; Pub. L. No. 105-368, title V,\n § 512(a)(4)(A), 112 Stat. 3315, 3341 (1998) (enacting chap-\n ter heading into law).\n\fCase: 24-1833 Document: 43 Page: 12 Filed: 01/13/2026\n\n\n\n\n 12 YOUNG v. COLLINS\n\n\n\n\n the “final decision” (for the Secretary). It does not say that\n every decision of the Board is a “final decision” for purposes\n of Veterans Court review. By its reference to section 511,\n it leaves the latter issue to chapter 72.\n As to what chapter 72 means, our precedents point to\n a narrower understanding of what is required for a “deci-\n sion” to be reviewable by the Veterans Court than\n Mr. Young urges. We have repeatedly said that “[a] ‘deci-\n sion’ of the Board, for purposes of the Veterans Court’s ju-\n risdiction under [38 U.S.C. § 7252], is the decision with\n respect to the benefit sought by the veteran [where] bene-\n fits are either granted . . . or they are denied.” Maggitt\n v. West, 202 F.3d 1370, 1376 (Fed. Cir. 2000); accord Mote\n v. Wilkie, 976 F.3d 1337, 1341–42 (Fed. Cir. 2020) (collect-\n ing cases); see May v. McDonough, 61 F.4th 963, 965–66\n (Fed. Cir. 2023). The Veterans Court has consistently ap-\n plied that gloss to § 7252. See Dojaquez v. McDonough, 35\n Vet. App. 423, 428–431 (2022) (discussing doctrinal devel-\n opments and collecting cases). Even were we free to do so,\n Mr. Young offers no compelling reason that we ought to de-\n part from that longstanding interpretation.\n 2\n Mr. Young further argues that the unreviewability of\n vacatur denials under section 20.1000(a) is inconsistent\n with the reviewability of the Board’s decisions on claims of\n clear and unmistakable error (CUE) and claims for reopen-\n ing. See Young’s Opening Br. at 5–6, 12; Young’s Reply Br.\n at 6–7. We see no such inconsistency—or tension that\n would justify excluding this case from the reach of Harms\n CAFC.\n First, we see no such disharmony with the reviewabil-\n ity of CUE claims. The law authorizing revision of benefits\n decisions for clear and unmistakable error says, “chapter\n 72 of title 38 . . . shall apply with respect to any decision of\n the [Board] on a [CUE] claim.” Pub. L. No. 105-111\n § 1(c)(2), 111 Stat. 2271, 2272 (1997) (emphases added); 38\n\fCase: 24-1833 Document: 43 Page: 13 Filed: 01/13/2026\n\n\n\n\n YOUNG v. COLLINS 13\n\n\n\n U.S.C. § 7251 (note). That clear, targeted expression of\n Congress’s will to make judicial review available for “any”\n decision on a CUE claim has no counterpart for decisions\n on a motion to vacate under the regulation at issue here,\n section 20.1000.\n CUE claims also differ relevantly in their substance\n from the claim at issue here. Under the long-established\n standard, a CUE challenge is a contention that the bottom-\n line result of the challenged benefits decision was wrong\n because it must be shown that correction of the asserted\n error “would have manifestly changed the outcome.” Smith\n v. McDonough, 101 F.4th 1375, 1379–81 (Fed. Cir. 2024)\n (quoting 38 C.F.R. § 20.1403(c)); see, e.g., Russell v. Prin-\n cipi, 3 Vet. App. 310, 313 (1992) (en banc). Relatedly, the\n provisions governing CUE use mandatory language that\n require the outcome to be changed when CUE is estab-\n lished; the provisions are not mere authorizations, and\n they do not use the language of “may.” See 38 U.S.C.\n §§ 5109A, 7111; 38 C.F.R. § 3.105(a) (as quoted in Russell,\n 3 Vet. App. at 313). CUE claims thus fit the Maggitt for-\n mulation regarding “decisions” in a way that motions to va-\n cate under section 20.1000(a) do not.\n Second, the long-recognized reviewability of denials of\n reopening under 38 C.F.R. § 3.156, see Elkins v. West, 12\n Vet. App. 209, 215–18 (1999) (en banc) (affording clear er-\n ror review), is similarly consistent with the unreviewabil-\n ity of denials of motions to vacate under section 20.1000(a).\n Like the CUE provisions, the statutes governing claims for\n reopening and supplemental claims use mandatory (not\n “may”) language, thus requiring the requested action when\n the standards are met. See 38 U.S.C. § 5108; 38 U.S.C.\n § 5108 (2016). Additionally, the reopening regulation, 38\n C.F.R. § 3.156, like the supplemental claim procedure of 38\n C.F.R. § 3.2501 that has largely succeeded it, necessarily\n involves “new” evidence. 38 C.F.R. § 3.156(a) (requiring\n “new and material” evidence); id. § 3.2501(a) (for supple-\n mental claims, “new and relevant” evidence). In that way,\n\fCase: 24-1833 Document: 43 Page: 14 Filed: 01/13/2026\n\n\n\n\n 14 YOUNG v. COLLINS\n\n\n\n\n reopening and supplemental claims are unlike the present\n motion to vacate and the reconsideration motion in Loco-\n motive Engineers, both of which involved an allegation of\n material error that could have been asserted at the time of\n the original decision. That difference mattered in Locomo-\n tive Engineers, which, as discussed above, recognized the\n reviewability of a reopening motion premised on new evi-\n dence. 482 U.S. at 284; see id. at 279 (“If review of denial\n to reopen for new evidence . . . is unavailable, the petitioner\n will have been deprived of all opportunity for judicial con-\n sideration . . . of facts which, through no fault of his own,\n the original proceeding did not contain.”). And because of\n the requirement of “new and material” (or “new and rele-\n vant”) evidence, reopening decisions directly call into ques-\n tion the substance of the Board’s original benefits grant or\n denial, providing a closer fit with the Maggitt standard for\n “decision” than do claims under section 20.1000(a), with\n their focus on process defects.\n In view of these differences between the vacatur proce-\n dure at issue here and the other reconsideration mecha-\n nisms invoked by Mr. Young, reviewability of decisions\n made through those mechanisms does not readily imply re-\n viewability of a denial of a motion to vacate under section\n 20.1000(a). We thus see no reason to depart from the nat-\n ural understanding of Harms CAFC as governing the pre-\n sent case.\n III\n We have considered Mr. Young’s remaining arguments\n and find them unpersuasive. Accordingly, we affirm the\n decision of the Veterans Court.\n The parties shall bear their own costs.\n AFFIRMED", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11240216/", "author_raw": "TARANTO, Circuit Judge."}]}	TARANTO	BRYSON	CUNNINGHAM	1		{"TARANTO": ", Circuit", "BRYSON": ", Circuit", "CUNNINGHAM": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10773631/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,773,633	Palmeri v. MSPB	2026-01-13	24-1918	U.S. Court of Appeals for the Federal Circuit	{"judges": "Before DYK, REYNA, and CHEN, Circuit Judges.", "parties": "", "opinions": [{"author": "DYK, Circuit Judge.", "type": "010combined", "text": "Case: 24-1918 Document: 52 Page: 1 Filed: 01/13/2026\n\n\n\n\n United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n NICHOLAS J. PALMERI,\n Petitioner\n\n v.\n\n MERIT SYSTEMS PROTECTION BOARD,\n Respondent\n ______________________\n\n 2024-1918\n ______________________\n\n Petition for review of the Merit Systems Protection\n Board in No. DC-0752-22-0341-I-1.\n ______________________\n\n Decided: January 13, 2026\n ______________________\n\n JOEL J. KIRKPATRICK, Joel J Kirkpatrick PC, Canton,\n MI, argued for petitioner.\n\n KATHERINE MICHELLE SMITH, Office of the General\n Counsel, United States Merit Systems Protection Board,\n Washington, DC, argued for respondent. Also represented\n by ALLISON JANE BOYLE.\n ______________________\n\n Before DYK, REYNA, and CHEN, Circuit Judges.\n DYK, Circuit Judge.\n\fCase: 24-1918 Document: 52 Page: 2 Filed: 01/13/2026\n\n\n\n\n 2 PALMERI v. MSPB\n\n\n\n\n Nicholas Palmeri petitions for review of a Merit Sys-\n tems Protection Board (the “Board”) decision dismissing\n his appeal for lack of jurisdiction. The Board determined\n that it lacked jurisdiction because Mr. Palmeri, as an em-\n ployee in the Senior Executive Service (“SES”) of the Drug\n Enforcement Administration (“DEA”), was required to ap-\n peal his alleged involuntary retirement only through a sys-\n tem established through regulation by the Attorney\n General. The Attorney General has not promulgated any\n such regulations, so this avenue does not exist. We con-\n clude that the Board correctly construed the relevant stat-\n ute and that the Board lacked jurisdiction. Mr. Palmeri\n may have a constitutional right to a posttermination hear-\n ing, but any rights, if they exist, must be asserted in a dif-\n ferent forum, not before the Board. We affirm.\n I\n Public employees with a property interest in their con-\n tinued employment are generally entitled to a posttermi-\n nation due process hearing to contest the termination of\n their employment. Cleveland Bd. of Educ. v. Loudermill,\n 470 U.S. 532, 541–42 (1985); Gilbert v. Homar, 520 U.S.\n 924, 928–29 (1997); Ramirez v. Dep’t of Homeland Sec.,\n 975 F.3d 1342, 1349 (Fed. Cir. 2020). For most federal em-\n ployees, the opportunity to appeal to the Board satisfies the\n requirement for a posttermination hearing. See Rodriguez\n v. Dep’t of Veterans Affs., 8 F.4th 1290, 1304–05 (Fed. Cir.\n 2021); Lisiecki v. Merit Sys. Prot. Bd., 769 F.2d 1558, 1564\n (Fed. Cir. 1985). This case involves DEA employees in the\n SES, who are treated differently than other federal em-\n ployees.\n In 1978, the Civil Service Reform Act (“CSRA”), Pub. L.\n No. 95-454, 92 Stat. 1111, ushered in a new system “de-\n signed to balance the legitimate interests of the various\n categories of federal employees with the needs of sound and\n efficient administration.” United States v. Fausto,\n 484 U.S. 439, 445 (1988). This system divided civil service\n\fCase: 24-1918 Document: 52 Page: 3 Filed: 01/13/2026\n\n\n\n\n PALMERI v. MSPB 3\n\n\n\n employees into three main classifications: the SES, the\n competitive service, and the excepted service. Id. at 441\n n.1. Employees in the SES “are high-level federal employ-\n ees who do not require presidential appointment but who\n nonetheless exercise significant responsibility—including\n directing organizational units, supervising work, and de-\n termining policy—and who may be held accountable for\n their projects or programs.” Esparraguera v. Dep’t of the\n Army (“Esparraguera I”), 981 F.3d 1328, 1330 (Fed. Cir.\n 2020); see also 5 U.S.C. § 3132(a)(2)(E) (an SES position\n “exercises important policy-making, policy-determining, or\n other executive functions”).\n Employees in the competitive service or excepted ser-\n vice are entitled to appeal an enumerated list of adverse\n actions to the Board, including termination. 5 U.S.C.\n §§ 7511–7512, 7513(d). This includes employees in the\n competitive and excepted services who work for the DEA.\n Typical SES employees are entitled to the same process\n most other federal employees receive when they are re-\n moved from the civil service, 5 U.S.C. § 7542, including ap-\n peals to the Board. 5 U.S.C. § 7543(d).\n However, the CSRA specifically excluded certain agen-\n cies, including the FBI and DEA, from the SES. 5 U.S.C.\n § 3132(a)(1)(B). When Title 5 refers to the “Senior Execu-\n tive Service,” that term excludes any employees of the DEA\n or FBI. Id.; 5 U.S.C. §§ 2101a, 3132(a)(2). In 1988, Con-\n gress established an independent SES for employees of the\n FBI and DEA. FBI and DEA Senior Executive Service Act,\n Pub. L. No. 100-325, 102 Stat. 579. Under the current stat-\n ute, these FBI-DEA SES employees are, in some respects,\n subject to the same provisions as other SES employees.\n Section 3151 provides for “removal or suspension con-\n sistent with subsections (a), (b), and (c) of section 7543”—\n those subsections refer to pretermination rights to notice\n and an opportunity to meaningfully respond to a proposed\n removal. 5 U.S.C. §§ 3151(a)(5)(D), 7543(a)–(c). However,\n section 3151 provides that “any hearing or appeal to which\n\fCase: 24-1918 Document: 52 Page: 4 Filed: 01/13/2026\n\n\n\n\n 4 PALMERI v. MSPB\n\n\n\n\n a member of the FBI-DEA Senior Executive Service is en-\n titled shall be held or decided pursuant to procedures es-\n tablished by regulations of the Attorney General.” 5 U.S.C.\n § 3151(a)(5)(D). No such regulations have been published.\n II\n The relevant facts of this case are undisputed.\n Mr. Palmeri began working at the DEA in 1997. In 2019,\n he worked as the Assistant Special Agent in Charge of the\n DEA’s New York Division, a General Schedule (“GS”)-15\n position. He applied for a position in the DEA’s SES, for\n which he was selected, and on March 29, 2020, he was con-\n verted from the GS-15 position to the SES position. He was\n not notified that this conversion to an SES position would\n affect his appeal rights. On January 14, 2022, the DEA\n proposed Mr. Palmeri’s removal from his SES position and\n the Federal service for failure to follow instructions, lack of\n candor, conduct unbecoming, and poor judgment. Before\n his proposed removal became effective, Mr. Palmeri re-\n tired. The day that he retired, the agency informed him\n that he would have been removed had he not retired.\n On April 8, 2022, Mr. Palmeri filed an appeal with the\n Board alleging involuntary retirement. 1 The DEA moved\n to dismiss the appeal for lack of jurisdiction arguing that\n the statute, 5 U.S.C. § 3151, does not provide FBI-DEA\n\n\n\n 1 Although retirement is not designated as an ap-\n pealable adverse action by statute, an involuntary retire-\n ment is treated as a “constructive removal[].” See\n Middleton v. Dep’t of Def., 185 F.3d 1374, 1379 (Fed. Cir.\n 1999) (citing Mintzmyer v. Dep’t of Interior, 84 F.3d 419,\n 423 (Fed. Cir. 1996)). An involuntary retirement is thus\n within the Board’s jurisdiction if a removal would be within\n the Board’s jurisdiction. Jenkins v. Merit Sys. Prot. Bd.,\n 911 F.3d 1370, 1375 (Fed. Cir. 2019) (quoting Cooper\n v. Dep’t of the Navy, 108 F.3d 324, 326 (Fed. Cir. 1997)).\n\fCase: 24-1918 Document: 52 Page: 5 Filed: 01/13/2026\n\n\n\n\n PALMERI v. MSPB 5\n\n\n\n SES employees the right to appeal to the Board. After al-\n lowing for written discovery and briefing, the Administra-\n tive Judge (“AJ”) granted the motion to dismiss, holding\n that the Board lacked jurisdiction. The full Board denied\n Mr. Palmeri’s subsequent petition for review, affirmed the\n initial decision, and adopted the initial decision as its final\n decision. Mr. Palmeri petitions for review of the Board’s\n final decision. We have jurisdiction under 28 U.S.C.\n § 1295(a)(9).\n III\n We review a decision of the Board dismissing an appeal\n for lack of jurisdiction de novo. Younies v. Merit Sys. Prot.\n Bd., 662 F.3d 1215, 1218 (Fed. Cir. 2011). “The Board’s ju-\n risdiction ‘is limited to those matters over which it has been\n given jurisdiction by law, rule, or regulation.’” Lee v. Merit\n Sys. Prot. Bd., 857 F.3d 874, 875 (Fed. Cir. 2017) (quoting\n Bennett v. Merit Sys. Prot. Bd., 635 F.3d 1215, 1218\n (Fed. Cir. 2011)). The question is whether 5 U.S.C. § 7543\n precludes Board jurisdiction over adverse action appeals\n from DEA SES employees.\n “When interpreting a statute, we begin with the text.”\n Lackey v. Stinnie, 604 U.S. 192, 199 (2025). Sec-\n tion 7543(d) unambiguously establishes a right to appeal\n covered adverse actions to the Board, but the provision only\n applies to “career appointee[s]” in “the Senior Executive\n Service.” 5 U.S.C. §§ 7541, 7543(d). In this instance, the\n phrase “Senior Executive Service” excludes certain agen-\n cies, including the DEA. 5 U.S.C. §§ 2101a, 3132(a)(1)–(2).\n Further, section 3151 empowers the Attorney General to\n establish the FBI-DEA SES and “appoint, promote, and as-\n sign individuals to positions established within the FBI-\n DEA [SES] without regard to the provisions of this title\n governing appointments and other personnel actions in the\n competitive service.” 5 U.S.C. § 3151(b)(2). The plain and\n unambiguous meaning of the text indicates that the FBI-\n DEA SES is separate and distinct from the broader SES,\n\fCase: 24-1918 Document: 52 Page: 6 Filed: 01/13/2026\n\n\n\n\n 6 PALMERI v. MSPB\n\n\n\n\n and that the Board procedures for the broader SES do not\n apply to the FBI-DEA SES except as provided for by stat-\n ute. See Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450\n (2002) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340\n (1997)).\n Although section 3151 provides some standard SES\n rights to FBI-DEA employees (such as the right to preter-\n mination notice and an opportunity to respond), it does not\n provide the right to a posttermination hearing or appeal to\n the Board. Instead, it provides “that any hearing or appeal\n to which a member of the FBI-DEA Senior Executive Ser-\n vice is entitled shall be held or decided pursuant to proce-\n dures established by regulations of the Attorney General.”\n 5 U.S.C. § 3151(a)(5)(D). This language excludes DEA SES\n employees from the right to appeal adverse actions to the\n Board as provided for in 5 U.S.C. § 7543. 2 Instead, these\n employees must appeal through a system established by\n the Attorney General through regulation.\n This carve out was not a mistake or oversight, but a\n deliberate action taken in light of the specific responsibili-\n ties of FBI and DEA SES employees. The stated purpose\n of the 1988 amendment was “to authorize the establish-\n ment of a separate and independent [SES] for the [FBI] and\n the [DEA] not subject to the control of the Office of Person-\n nel Management.” H.R. Rep. 100-608, at 2 (emphases\n added). The FBI-DEA SES was given a different set of pro-\n cedural rights “[i]n recognition of the unique nature of the\n FBI and DEA missions and the need for security.” Id. at 3.\n In particular, section 3151(a)(5)(D) was described as\n\n\n 2 Mr. Palmeri also argues that his right to appeal\n was provided for by 5 C.F.R. § 752.601(c)(iii), but this pro-\n vision only covers removals described by section 7452,\n which excludes FBI-DEA SES employees. See 5 C.F.R.\n § 752.601(a); 5 U.S.C. §§ 2101a, 3132(a)(1)–(2), 7541(1),\n 7542–7543.\n\fCase: 24-1918 Document: 52 Page: 7 Filed: 01/13/2026\n\n\n\n\n PALMERI v. MSPB 7\n\n\n\n providing that “[i]n lieu of any hearing or appeal which\n might be available outside the agency to an individual in\n the government-wide SES, the Attorney General’s regula-\n tions shall provide for an alternative hearing or appeal.\n This provision is intended to ensure basic due process to\n members of the FBI-DEA SES while not undermining the\n need for confidentiality within these agencies.” Id. at 6; see\n also Hearing Before the Subcomm. on Civil Service on\n H.R. 4083 and H.R. 4318, 100th Cong. 3 (1988) (testimony\n of John D. Glover, FBI Executive Assistant Director) (de-\n scribing the 1988 legislation as “excepting our agencies\n from review by the [Board] while maintaining personnel\n safeguards.”).\n Because Mr. Palmeri is a DEA SES employee, he lacks\n appeal rights to the Board. Instead, his appeal must be\n heard, if at all, pursuant to regulations promulgated by the\n Attorney General. The problem is that in the decades since\n the 1988 legislation, these regulations have yet to be prom-\n ulgated for reasons unknown. Mr. Palmeri argues that be-\n cause he was not informed that he would lose his appeal\n rights when he joined the DEA SES, he should retain his\n original appeal rights. However, this argument is fore-\n closed by our precedent. Williams v. Merit Sys. Prot. Bd.,\n 892 F.3d 1156, 1158 (Fed. Cir. 2018) (“[A]n agency’s failure\n to advise federal employees on the terms of their appoint-\n ment ‘does not create appeal rights for positions as to which\n Congress has not given Board appellate jurisdiction.’”\n (quoting Carrow v. Merit Sys. Prot. Bd., 626 F.3d 1348,\n 1353 (Fed. Cir. 2010))).\n Mr. Palmeri also argues that the failure to issue the\n regulations denied him due process and, in the absence of\n those regulations, he should be provided the appellate pro-\n cedure afforded to employees in the general SES. We can-\n not agree. Congress clearly intended to exclude DEA SES\n employees like Mr. Palmeri from the scope of the Board’s\n jurisdiction because it determined that the process given to\n other SES employees was unsuitable for these employees.\n\fCase: 24-1918 Document: 52 Page: 8 Filed: 01/13/2026\n\n\n\n\n 8 PALMERI v. MSPB\n\n\n\n\n It would contradict both the language of the statute and\n the congressional purpose to apply the standard SES pro-\n visions to DEA SES employees. Even if Mr. Palmeri had a\n constitutional right to a posttermination hearing—an issue\n we need not decide—there is no constitutional right to have\n a hearing before the Board. As we have said in a related\n context, “we could not, as a reasonable remedy, expand the\n Board’s limited jurisdiction where Congress foreclosed re-\n view.” Esparraguera I, 981 F.3d at 1336.\n Nor does the Board have jurisdiction to consider a con-\n stitutional claim asserting the denial of appeal rights is a\n due process violation. See id. (holding that when the Board\n lacked jurisdiction over an appeal of adverse employment\n action, it lacked jurisdiction to hear a related due process\n claim).\n Our decision does not leave Mr. Palmeri without a rem-\n edy. If Mr. Palmeri wishes to compel the Attorney General\n to promulgate the necessary regulations, he may petition\n for rulemaking. See 5 U.S.C. § 553(e). If he wishes to as-\n sert constitutional claims, he may proceed in district court.\n See generally Esparraguera v. Dep’t of Army, 101 F.4th 28\n (D.C. Cir. 2024) (after having Board appeal dismissed for\n lack of jurisdiction, employee brought due process claim in\n district court); McCabe v. Barr, 490 F. Supp. 3d 198\n (D.D.C. 2020) (FBI SES employee brought due process\n claim in district court).\n We have considered Mr. Palmeri’s remaining argu-\n ments and find them unpersuasive.\n AFFIRMED\n COSTS\n No costs.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11240218/", "author_raw": "DYK, Circuit Judge."}]}	DYK	REYNA	CHEN	1		{"DYK": ", Circuit", "REYNA": ", Circuit", "CHEN": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10773633/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...
10,774,331	McKinney v. Secretary of Veterans Affairs	2026-01-14	23-1930	U.S. Court of Appeals for the Federal Circuit	{"judges": "Before PROST, REYNA, and CHEN, Circuit Judges.", "parties": "", "opinions": [{"author": "CHEN, Circuit Judge.", "type": "010combined", "text": "Case: 23-1930 Document: 62 Page: 1 Filed: 01/14/2026\n\n\n\n\n United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n HUGH CAMPBELL MCKINNEY,\n Petitioner\n\n v.\n\n SECRETARY OF VETERANS AFFAIRS,\n Respondent\n ______________________\n\n 2023-1930\n ______________________\n\n Petition for review pursuant to 38 U.S.C. Section 502.\n ______________________\n\n Decided: January 14, 2026\n ______________________\n\n SETH A. WATKINS, Watkins Law & Advocacy, PLLC,\n Washington, DC, argued for petitioner.\n\n DANIEL FALKNOR, Commercial Litigation Branch, Civil\n Division, United States Department of Justice, Washing-\n ton, DC, argued for respondent. Also represented by\n ELIZABETH MARIE HOSFORD, PATRICIA M. MCCARTHY,\n YAAKOV ROTH; EVAN SCOTT GRANT, Y. KEN LEE, Office of\n General Counsel, United States Department of Veterans\n Affairs, Washington, DC.\n ______________________\n\n Before PROST, REYNA, and CHEN, Circuit Judges.\n\fCase: 23-1930 Document: 62 Page: 2 Filed: 01/14/2026\n\n\n\n\n 2 MCKINNEY v. SECRETARY OF VETERANS AFFAIRS\n\n\n\n\n CHEN, Circuit Judge.\n Hugh Campbell McKinney petitioned the United\n States Department of Veterans Affairs (VA’s) to institute\n rulemaking to expand coverage of the Traumatic Service-\n members’ Group Life Insurance (TSGLI) to include illness\n or disease caused by explosive ordnance. See Servicemem-\n bers’ Group Life Insurance Traumatic Injury Protection\n Program, 88 Fed. Reg. 15,907 (Mar. 15, 2023) (Final De-\n nial). TSGLI covers servicemembers who suffer a trau-\n matic injury and is designed to fill a gap between the time\n the injury occurs and when other benefits are available.\n This program is overseen by the VA, which also has the\n power to issue regulations enumerating various injuries\n that are covered. As it stands, the regulation covers phys-\n ical damage to a servicemember caused by, among other\n things, application of external force or chemical, biological,\n or radiological weapons. The regulation, however, does not\n cover an illness or disease, with a few exceptions. The VA\n denied Mr. McKinney’s petition to expand coverage due to\n several concerns, including that such coverage would be in-\n consistent with the types of injuries the TSGLI was de-\n signed to protect. Mr. McKinney now petitions this court\n under 38 U.S.C. § 502 to set aside the VA’s denial. For the\n following reasons, we deny the petition.\n BACKGROUND\n I\n On May 11, 2005, the President signed into law the leg-\n islation establishing TSGLI to provide financial assistance\n to servicemembers who suffer severe traumatic injuries.\n J.A. 83. The purpose of the program is to address a “gap”\n in benefits identified by Congress: the period immediately\n after a service member suffers a traumatic injury when\n “the need for additional financial resources becomes most\n acute.” J.A. 17–18. TSGLI provides that “[a] member of\n the uniformed service who is insured under Servicemem-\n bers’ Group Life Insurance shall automatically be insured\n\fCase: 23-1930 Document: 62 Page: 3 Filed: 01/14/2026\n\n\n\n\n MCKINNEY v. SECRETARY OF VETERANS AFFAIRS 3\n\n\n\n for traumatic injury in accordance with this section” and\n that “[i]nsurance benefits under this section shall be paya-\n ble if the member, while so insured, sustains a traumatic\n injury . . . that results in a qualifying loss.” 38 U.S.C.\n § 1980A(a)(1). The benefit, however, is payable only if the\n loss “results directly from [the] traumatic injury . . . and\n from no other cause.” Id. § 1980A(c)(1).\n Under the statute, a qualifying loss includes loss of\n limbs; total and permanent loss of sight, hearing, or speech;\n severe burns; paralysis; traumatic brain injury; and loss of\n ability to carry out the activities of daily living. See id.\n § 1980A(b)(1)(A–H). Additionally, the VA may prescribe\n additional qualifying losses by regulation. Id.\n § 1980A(b)(3). The VA defined these qualifying losses in 38\n C.F.R. § 9.20. 1\n According to 38 C.F.R. § 9.20, service members who ex-\n perience (1) a traumatic event that results in (2) a trau-\n matic injury directly causing (3) a qualifying “scheduled\n loss” are eligible to receive a TSGLI payment. The VA de-\n fined “traumatic event” as the application of external force,\n violence, chemical, biological, or radiological weapons, or\n accidental ingestion of a contaminated substance causing\n damage to a living body. 38 C.F.R. § 9.20(b)(1). Moreover,\n the VA defined “traumatic injury” as “physical damage to\n a living body that is caused by a traumatic event, as de-\n fined in [§ 9.20(b)].” Id. § 9.20(c)(1). However, “the term\n ‘traumatic injury’ does not include damage to a living body\n caused by,” inter alia, “physical illness or disease, except if\n the physical illness or disease is caused by a pyogenic in-\n fection, biological, chemical, or radiological weapons, or ac-\n cidental ingestion of a contaminated substance.” Id.\n § 9.20(c)(2) (emphasis added). The regulation thus draws\n\n\n 1 In 2023, the VA modified 38 C.F.R. § 9.20 to expand\n the definition of a “traumatic event.” However, we will only\n be discussing the pre-2023 version of 38 C.F.R. § 9.20.\n\fCase: 23-1930 Document: 62 Page: 4 Filed: 01/14/2026\n\n\n\n\n 4 MCKINNEY v. SECRETARY OF VETERANS AFFAIRS\n\n\n\n\n a distinction, for the most part, between physical damage\n caused by a traumatic injury and damage caused by an ill-\n ness or disease for TSGLI benefits purposes.\n To be eligible for payment of benefits, service members\n must suffer a scheduled loss “within two years of the trau-\n matic injury.” Id. § 9.20(d)(4). Additionally, the scheduled\n loss must “result[] directly from a traumatic injury and no\n other cause.” Id. § 9.20(d)(2) (emphasis added). This\n means that “if a pre-existing illness, condition, or disease\n or a post-service injury substantially contributed to the\n loss,” then the scheduled loss “does not result directly from\n a traumatic injury.” Id. § 9.20(d)(2)(i).\n The VA explained that illness and disease were gener-\n ally excluded from the definition of “traumatic injury” be-\n cause “the term ‘injury’ refers to the results of an external\n trauma rather than a degenerative process.” Traumatic\n Injury Protection Rider To Servicemembers’ Group Life In-\n surance, 70 Fed. Reg. 75940, 75941 (Dec. 22, 2005), J.A. 24.\n The VA, however, carved out five exceptions for “physical\n illness or disease caused by a pyogenic infection, chemical,\n biological, or radiological weapons, or accidental ingestion\n of a contaminated substance because including immediate\n traumatic harm due to those unique hazards of military\n service is consistent with the purpose of TSGLI.” Id. (em-\n phasis added). Thus, the VA specified that diseases result-\n ing from those hazards are within the definition of\n “traumatic injury.” See 38 C.F.R. § 9.20(c)(2)(ii).\n II\n Mr. McKinney is an Iraq war veteran who sustained a\n traumatic brain injury (TBI) from the concussive force of\n an improvised explosive device (IED) while deployed in\n 2005. Within two years of his TBI, Mr. McKinney suffered\n a stroke and submitted a claim for TSGLI benefits based\n on his stroke. Mr. McKinney’s application was denied be-\n cause the United States Army determined that\n\fCase: 23-1930 Document: 62 Page: 5 Filed: 01/14/2026\n\n\n\n\n MCKINNEY v. SECRETARY OF VETERANS AFFAIRS 5\n\n\n\n Mr. McKinney’s stroke was a physical illness or disease ra-\n ther than a qualifying traumatic injury under 38 U.S.C.\n § 1980A(a)(1).\n In March 2015, Mr. McKinney filed a petition for rule-\n making, requesting the VA to, among other things, broaden\n the definition of “traumatic injury” in 38 C.F.R. § 9.20. See\n Petition for Rulemaking by Army First Sergeant Hugh\n Campbell McKinney, Retired, to Amend 38 C.F.R. § 9.20\n Governing Traumatic Injury Protection (U.S. Dep’t of Vet-\n erans Affs. Mar. 16, 2015) (Petition for Rulemaking);\n J.A. 935. Mr. McKinney’s proposed amendment would ex-\n pand “traumatic injury” to also cover damage to a living\n body resulting from any physical illness or disease caused\n by explosive ordnance. J.A. 938–39. Under this proposed\n amendment, the explosive ordnance caused Mr. McKin-\n ney’s TBI, which triggered a disease process that eventu-\n ally led to Mr. McKinney’s stroke. 2 Accordingly,\n Mr. McKinney’s stroke would also be covered by TSGLI.\n Mr. McKinney asserted that there is no meaningful dif-\n ference between physical illness or disease that is linked to\n explosive ordnance and the types of physical illness or dis-\n ease already covered by the VA’s regulation, i.e., illnesses\n or diseases caused by pyogenic infection, biological, chemi-\n cal, or radiological weapons, and accidental ingestion of a\n contaminated substance. In Mr. McKinney’s view, explo-\n sive ordnances such as IEDs “produce immediate harm”\n which then follows a “disease process” similar to the five\n\n\n\n\n 2 Since both parties discuss only TBIs caused by ex-\n plosive ordnance, see, e.g., Pet’r’s Br. 15; Resp’t’s Br. 15, we\n will use “TBI” interchangeably with “TBI caused by explo-\n sive ordnance” when discussing the causal connection be-\n tween explosive ordnance, TBI, and the downstream\n physical illness or disease.\n\fCase: 23-1930 Document: 62 Page: 6 Filed: 01/14/2026\n\n\n\n\n 6 MCKINNEY v. SECRETARY OF VETERANS AFFAIRS\n\n\n\n\n already-covered exceptions. See Petition for Rulemaking\n at 1–2 , J.A. 937–38.\n The VA denied Mr. McKinney’s petition on August 6,\n 2015. J.A. 973–75. However, as part of a ten-year anni-\n versary review (Year-Ten Review) of the TSGLI program,\n the VA committed to (1) “analyze the relationship” between\n IED explosions and physical illness or disease development\n and (2) “conduct an actuarial assessment of any such regu-\n latory amendment on the TSGLI program.” Id. at 974.\n Mr. McKinney petitioned our court for review on October 5,\n 2015, and the VA rescinded its denial of Mr. McKinney’s\n petition on December 1, 2015. The VA informed\n Mr. McKinney that it would not make a decision on the reg-\n ulatory changes requested in his petition until it completed\n its Year-Ten Review of the TSGLI program. We subse-\n quently granted Mr. McKinney’s unopposed motion to dis-\n miss his petition for review and noted that Mr. McKinney\n planned to refile a petition for review once the VA com-\n pleted the Year-Ten Review and took final action on his\n rulemaking petition.\n Although the VA completed its Year-Ten Review in\n 2018, it did not take any action on Mr. McKinney’s rule-\n making petition in the accompanying report. Instead, the\n VA stated that it would “respond to [Mr. McKinney’s] peti-\n tion during the formal regulatory submission process for\n the TSGLI Year-Ten Review recommendations.” J.A. 1369.\n As part of this process, the VA consulted with numerous\n medical experts, the majority of whom opined that it is\n nearly impossible to prove a causal relationship between\n exposure to an explosive ordnance and a specific, subse-\n quent illness or disease such as a stroke, for example. See\n Servicemembers’ Group Life Insurance Traumatic Injury\n Protection Program Amendments, 85 Fed. Reg. 50973,\n 50974 (Aug. 19, 2020) (Proposed Denial). On August 19,\n 2020, the VA issued a notice of proposed rulemaking in\n which it proposed to deny Mr. McKinney’s petition. See id.\n at 50983.\n\fCase: 23-1930 Document: 62 Page: 7 Filed: 01/14/2026\n\n\n\n\n MCKINNEY v. SECRETARY OF VETERANS AFFAIRS 7\n\n\n\n On March 15, 2023, the VA published a final rule that\n denied Mr. McKinney’s rulemaking petition because, in the\n agency’s view, expanding coverage to include illness or dis-\n ease that materializes long after exposure to explosive ord-\n nance (1) would be inconsistent with TSGLI’s purpose of\n providing compensation for injuries occurring immediately\n after a traumatic event; (2) would be inconsistent with\n commercial accidental death and dismemberment (AD&D)\n insurance policies after which TSGLI is modeled; (3) would\n risk the financial health of TSGLI; and (4) would be incon-\n sistent with the statutory requirement that covered losses\n “result[] directly from a traumatic injury . . . and from no\n other cause.” 38 U.S.C. § 1980A(c)(1); see Final Denial at\n 15908–09. The VA reasoned that there are too many dif-\n ferent variables that could cause the various diseases and\n illnesses associated with explosive ordnance, and therefore\n the VA declined to extend TSGLI coverage to those ill-\n nesses and diseases. Final Denial at 15909.\n Mr. McKinney now petitions us for review. We have\n jurisdiction to review the VA’s denial of a petition for rule-\n making under 38 U.S.C. § 502.\n STANDARD OF REVIEW\n “Pursuant to [38 U.S.C.] § 502, we review actions of the\n VA ‘in accordance with chapter 7 of title 5,’ i.e., under the\n relevant [Administrative Procedure Act] APA standard of\n review, 5 U.S.C. § 706.” Preminger v. Sec’y of Veterans\n Affs., 632 F.3d 1345, 1353 (Fed. Cir. 2011) (citation omit-\n ted). That review must be based on the “whole record” be-\n fore the agency as of its decision. 5 U.S.C. § 706; Citizens\n to Preserve Overton Park v. Volpe, 401 U.S. 402, 419 (1971).\n In reviewing an agency’s denial of a petition for rule-\n making under 5 U.S.C. § 553(e), we must determine\n whether the agency’s decision was “arbitrary, capricious,\n an abuse of discretion, or otherwise not in accordance with\n law.” Id. at 414 (citation omitted). This is a highly defer-\n ential standard, and our review of an agency’s decision not\n\fCase: 23-1930 Document: 62 Page: 8 Filed: 01/14/2026\n\n\n\n\n 8 MCKINNEY v. SECRETARY OF VETERANS AFFAIRS\n\n\n\n\n to promulgate a requested rule is “extremely limited.”\n Massachusetts v. EPA, 549 U.S. 497, 527–28 (2007) (cita-\n tion omitted).\n We must determine whether the VA’s denial of\n Mr. McKinney’s rulemaking petition provides a reasoned\n decision that adequately responds to the claims in the pe-\n tition. See, e.g., Serv. Women’s Action Network v. Sec’y of\n Veterans Affs., 815 F.3d 1369, 1374–75 (Fed. Cir. 2016) (in\n reviewing an agency’s denial of rulemaking petition, we\n ask “whether the agency employed reasoned decisionmak-\n ing in rejecting the petition.” (citation omitted)); Premin-\n ger, 632 F.3d at 1353 (“‘[A]n agency’s refusal to institute\n rulemaking proceedings is at the high end of the range’ of\n levels of deference given to agency action under the ‘arbi-\n trary and capricious’ standard.” (citation omitted)). When\n denying a petition for rulemaking, the VA must provide “a\n brief statement of the grounds for denial.” 5 U.S.C.\n § 555(e). The procedural requirements are “minimal,”\n Butte Cnty., Cal. v. Hogen, 613 F.3d 190, 194 (D.C. Cir.\n 2010), and all that is required to satisfy the arbitrary and\n capricious standard under the APA is a “rational connec-\n tion between the facts found and the choice made.” Motor\n Vehicles Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut.\n Auto. Ins. Co., 463 U.S. 29, 43 (1983) (citation omitted).\n However, an unsupported denial or a “clear error in judg-\n ment” warrants reversal of a denial of a petition. Flyers\n Rts. Educ. Fund, Inc. v. FAA, 864 F.3d 738, 743 (D.C. Cir.\n 2017) (citation omitted).\n DISCUSSION\n\n Mr. McKinney advances three primary arguments in\n his petition for review. 3 First, he contends that the VA’s\n\n\n 3 In a filing made on the eve of oral argument,\n Mr. McKinney belatedly contends that the “extremely\n\fCase: 23-1930 Document: 62 Page: 9 Filed: 01/14/2026\n\n\n\n\n MCKINNEY v. SECRETARY OF VETERANS AFFAIRS 9\n\n\n\n several-year delay and alleged misrepresentation of his\n personal health information to outside medical experts con-\n stitute bad-faith adjudication of his petition. See Pet’r’s Br.\n 35, 40. Second, Mr. McKinney argues that because the\n rulemaking record is incomplete, it must be supplemented\n before we can conduct a proper review of the VA’s denial of\n his rulemaking petition. See id. at 42–43. Finally,\n Mr. McKinney asserts that the VA’s denial of his petition\n is arbitrary and capricious because the VA failed to reason-\n ably account for (1) the medical literature indicating that\n explosive ordnance follows a “disease process” and (2) the\n VA’s rationales in prior rulemaking that compel the oppo-\n site conclusion from the one reached by the VA here. See\n id. at 50–57. We disagree with Mr. McKinney’s arguments,\n and address each in turn.\n I. Bad Faith\n Mr. McKinney identifies several examples of purported\n irregularities in the administrative record, arguing that\n they are “harbingers” of the VA’s bad faith. Id. at 35. In\n particular, he points to (1) the VA’s eight-year delay and\n supposed secrecy surrounding his rulemaking petition, and\n (2) the VA’s reliance on purportedly flawed and obsolete\n medical evidence as indications of bad faith. See id. at 35–\n 42. For example, Mr. McKinney asserts that the adminis-\n trative record contains outdated medical evidence\n\n\n limited” and “highly deferential” standard of review that\n applies to review of the VA’s denial of a petition for rule-\n making is no longer appropriate after Loper Bright Enter-\n prises v. Raimondo, 603 U.S. 369 (2024), overruled Chevron\n deference. ECF No. 59 at 2 (citing Loper Bright, 603 U.S.\n at 412); see Chevron U.S.A., Inc. v. Nat. Res. Def. Council,\n Inc., 467 U.S. 837 (1984). Mr. McKinney, however, does\n not explain why Loper Bright overturns the existing stand-\n ard of review that applies to cases like this one. As this\n issue is not adequately briefed, we decline to consider it.\n\fCase: 23-1930 Document: 62 Page: 10 Filed: 01/14/2026\n\n\n\n\n 10 MCKINNEY v. SECRETARY OF VETERANS AFFAIRS\n\n\n\n\n predating a 2010 paper by Masel and Dewitt, a paper that\n supports his rulemaking petition because it purportedly\n proves the existence of a causal link between an explosive\n ordnance, i.e., a traumatic event, and certain physical ill-\n nesses and diseases. Id. at 37–38; see also J.A. 1493–1504\n (Masel and Dewitt paper). Mr. McKinney additionally ar-\n gues that the VA mischaracterized his health profile when\n consulting with outside medical experts, thereby biasing\n them to be “even more skeptical” of his rulemaking peti-\n tion. Id. at 40 (citing J.A. 1291–92). Mr. McKinney con-\n tends that the medical evidence in the record is accordingly\n tainted and cannot be used to support the VA’s denial of\n his petition. See id. at 35–42. Mr. McKinney’s arguments\n are not persuasive.\n While the VA’s protracted delay in addressing\n Mr. McKinney’s petition is regrettable, the purported ir-\n regularities he listed are inadequate to support setting\n aside its decision. Cf. Flyers Rts., 864 F.3d at 747 (remand-\n ing because “information critically relied upon by the\n agency” was not available for review by the appellate\n court). As an initial matter, the authorities that\n Mr. McKinney cites fail to substantiate the proposition\n that the VA acted in bad faith simply because it took many\n years to render a final denial of his rulemaking petition.\n See Pet’r’s Br. 35–40. The cited cases merely characterize\n the agency’s delays in those cases as “unreasonable” or\n “egregious,” but they do not opine on whether those delays\n are indicators of bad-faith conduct. See, e.g., In re Am. Riv-\n ers & Idaho Rivers United, 372 F.3d 413, 419–20 & n.12\n (D.C. Cir. 2004) (agency’s “six-year-plus delay is nothing\n less than egregious”). Indeed, one case attributes an un-\n reasonable six-year delay to “bureaucratic inefficiency ra-\n ther than bad faith.” Pub. Citizen Health Rsch. Grp. v.\n Brock, 823 F.2d 626, 628 (D.C. Cir. 1987).\n Moreover, although Mr. McKinney is correct that some\n of the VA’s medical sources predate the Masel and Dewitt\n article, he does not explain why these citations evince bad\n\fCase: 23-1930 Document: 62 Page: 11 Filed: 01/14/2026\n\n\n\n\n MCKINNEY v. SECRETARY OF VETERANS AFFAIRS 11\n\n\n\n faith. See Pet’r’s Br. 37–38; J.A. 1493. Additionally, the\n VA also relied on sources postdating the Masel and Dewitt\n 2010 article, and Mr. McKinney does not explain why these\n sources fail to support the VA’s denial of his rulemaking\n petition. See Pet’r’s Br. 37–38. Likewise, Mr. McKinney\n does not offer any persuasive reason why the VA acted in\n bad faith by relying on its 2016 consultations with outside\n medical experts to deny his petition for rulemaking.\n Mr. McKinney’s contention that the VA biased the out-\n side medical experts is unavailing. He selectively refer-\n ences a portion of one interview summary that allegedly\n shows the VA mischaracterized his health history to elicit\n “‘even more skeptical’ reactions skewed to [the] VA’s liking\n and against the rulemaking petition.” Pet’r’s Br. 40 (citing\n J.A. 1291–92). Even assuming the VA misrepresented\n Mr. McKinney’s health history—an assumption we do not\n adopt—such a misrepresentation does not appear to have\n influenced the experts’ views as to the medical theory un-\n derlying Mr. McKinney’s petition: before “the facts of the\n petitioner’s case [were] provided,” the experts already ex-\n plained that “if a biomarker showed that someone experi-\n enced a TBI and then later they experience a stroke,\n clinicians cannot definitely say the TBI caused the stroke\n as other factors . . . could have caused the stroke.” J.A.\n 1291. Finally, to the extent Mr. McKinney is correct that\n the experts were misled in this particular interview, the\n record contains other interview summaries that do not\n mention or characterize Mr. McKinney’s health history;\n each of these summaries likewise shows experts who are\n skeptical of Mr. McKinney’s position that it is not difficult\n to show a causal relationship between exposure to explo-\n sive ordnance and downstream physical illness or disease.\n See, e.g., J.A. 1288 (“Summary of Phone Conference with\n Col. Todd Rasmussen” stating it is “[v]ery difficult, next to\n impossible, to factually/scientifically prove causation be-\n tween explosive ordnance and illness and disease in most\n cases”); J.A. 1289–90 (“Summary of Meeting with Dr. M.\n\fCase: 23-1930 Document: 62 Page: 12 Filed: 01/14/2026\n\n\n\n\n 12 MCKINNEY v. SECRETARY OF VETERANS AFFAIRS\n\n\n\n\n Sean Grady” stating that “today’s science would most likely\n not allow a Servicemember to prove that one of these ill-\n nesses/diseases was a direct result of the blast injury”).\n Without more, we therefore cannot find that the VA acted\n in bad faith in relying on the medical evidence in the ad-\n ministrative record to deny Mr. McKinney’s rulemaking\n petition.\n II. Incomplete Administrative Record\n Mr. McKinney also contends that the administrative\n record is incomplete and therefore unreviewable because\n (1) there is no record in the Amended Index of Rulemaking 4\n during five of the eight years that the petition was pending\n before the VA; (2) there is scant record of the VA meeting\n its statutory obligation to consult with the Department of\n Defense (DoD); (3) there is no actuarial assessment or rel-\n evant statistical data on which VA based its denial of the\n rulemaking petition; (4) there is no “Response Sheet” that\n Mr. McKinney separately obtained through a Freedom of\n Information Act request; and (5) there is piecemeal compi-\n lation of the record, which overcomes the presumption of\n regularity. 5 Pet’r’s Br. 42–44 (citation omitted). We are\n not persuaded.\n As the D.C. Circuit has explained, “the record needed\n to support an agency’s decision not to engage in rulemak-\n ing can be sparser than that needed to support rulemak-\n ing.” Flyers Rts., 864 F.3d at 746. In the case of a denial\n\n\n\n 4 The index contains a list of the records the VA re-\n lied on in its rulemaking process.\n 5 “The presumption of regularity provides that, in\n the absence of clear evidence to the contrary, the court will\n presume that public officers have properly discharged their\n official duties.” Miley v. Principi, 366 F.3d 1343, 1347\n (Fed. Cir. 2004) (citing Butler v. Principi, 244 F.3d 1337,\n 1339 (Fed. Cir. 2001)).\n\fCase: 23-1930 Document: 62 Page: 13 Filed: 01/14/2026\n\n\n\n\n MCKINNEY v. SECRETARY OF VETERANS AFFAIRS 13\n\n\n\n of rulemaking, “the ‘record’ for purposes of review need\n only include the petition for rulemaking, comments pro and\n con where deemed appropriate, and the agency’s explana-\n tion of its decision to reject the petition.” WWHT, Inc. v.\n FCC, 656 F.2d 807, 817–818 (D.C. Cir. 1981). On review of\n the record, we are satisfied that it contains the evidence\n the VA considered and is therefore sufficient to permit our\n review.\n First, the VA offered a reasonable explanation for the\n time-gap of agency inactivity in the administrative rec-\n ord—it reflects the fact that the VA prioritized its Year-Ten\n Review of the TSGLI program at the expense of processing\n rulemaking petitions. See Resp’t’s Br. 35–36. Mr. McKin-\n ney does not contest the VA’s explanation or explain why\n this gap frustrates our review. See generally Pet’r’s Reply\n Br. Accordingly, we decline to infer that this gap in the\n administrative record renders the record unreviewable.\n Second, Mr. McKinney does not explain why he be-\n lieves the record lacks proof that the VA has met its obli-\n gation to consult with the DoD. See 38 U.S.C. § 1980A(j)\n (“Regulations under this section shall be prescribed in con-\n sultation with the Secretary of Defense.”). In fact, the VA\n has produced its communications with the DoD, see J.A.\n 963 (discussing Year-Ten review with the DoD); J.A. 1341–\n 42 (same); J.A. 1387 (DoD verbally signing off on the Year-\n Ten review), and Mr. McKinney does not dispute the verac-\n ity of those documents. He merely asserts that these com-\n munications are not enough under 38 U.S.C. § 1980A(j).\n Pet’r’s Reply Br. 2–3. Under the circumstances, we reject\n this argument.\n Third, Mr. McKinney does not explain why the VA is\n required by law to perform an actuarial assessment. The\n VA relies on a 2009 congressional report to show that add-\n ing illness or disease coverage to TSGLI would raise costs\n and require additional funding. See Resp’t’s Br. 37 (citing\n J.A. 572–74). Mr. McKinney is correct that the 2009 report\n\fCase: 23-1930 Document: 62 Page: 14 Filed: 01/14/2026\n\n\n\n\n 14 MCKINNEY v. SECRETARY OF VETERANS AFFAIRS\n\n\n\n\n only examines the increased costs associated with adding\n coverage for Post-Traumatic Stress Disorder (PTSD), a\n mental disorder that is “separately considered from physi-\n cal illness or disease.” Pet’r’s Reply 4–5 (citation omitted).\n But the VA’s larger point was to show that both the 2009\n report and Mr. McKinney’s petition would substantially\n expand TSGLI coverage, creating a significant additional\n financial burden on the program. That was a reasonable\n observation for the VA to make. But even if the VA cannot\n rely on the 2009 report, Mr. McKinney does not point to\n any law or regulation mandating the VA to perform an ac-\n tuarial assessment. We accordingly decline to find that the\n record is unreviewable without such assessment.\n Fourth, although the “Response Sheet” from the Air\n Force was not in the administrative record, Mr. McKinney\n does not show why this would render the record unreview-\n able. Contrary to Mr. McKinney’s claim, the exclusion of\n the “Response Sheet” does not harm Mr. McKinney, as the\n sheet shows the Air Force’s opposition to Mr. McKinney’s\n petition. See J.A. 9047. In any event, the VA’s denial of\n Mr. McKinney’s petition is amply supported by the record,\n even without this omitted document. See infra. Since the\n record supporting a denial of rulemaking petition only re-\n quires “comments pro and con where deemed appropriate,”\n WWHT, 656 F.2d at 818, Mr. McKinney does not persua-\n sively show why omission of the “Response Sheet” renders\n the record incomplete so as to frustrate our review. See\n Oracle Am., Inc. v. United States, 975 F.3d 1279, 1291\n (Fed. Cir. 2020) (concluding that a remand is unnecessary\n when “there is no reason to believe that the [agency] deci-\n sion would have been different” (citations omitted)).\n Finally, Mr. McKinney does not show how the VA’s\n compilation of the record is so abnormal that the presump-\n tion of regularity is overcome. Mr. McKinney’s reliance on\n Defenders of Wildlife v. Norton, 239 F. Supp. 2d 9, 21\n (D.D.C. 2002), vacated in part, 89 F. App’x 273 (D.C. Cir.\n 2004), is inapposite here. See Pet’r’s Br. 44. In Defenders\n\fCase: 23-1930 Document: 62 Page: 15 Filed: 01/14/2026\n\n\n\n\n MCKINNEY v. SECRETARY OF VETERANS AFFAIRS 15\n\n\n\n of Wildlife, the district court deemed the missing records to\n be “significant” to the agency’s denial to initiate rulemak-\n ing. 239 F. Supp. 2d at 21 n.10. Here, Mr. McKinney does\n not contend that any missing documents were “significant,”\n or would otherwise meaningfully support his petition. See\n generally Pet’r’s Br. Additionally, unlike in Defenders of\n Wildlife, where some of the missing documents were delib-\n erately withheld based on improper assertion of the delib-\n erative process privilege, see 239 F. Supp. 2d at 21 n.10,\n there is no such active obstruction here. The VA instead\n worked with Mr. McKinney to include records that he be-\n lieved warranted inclusion in the record. See J.A. 9049–67.\n Mr. McKinney did not provide clear evidence to the con-\n trary to disturb the presumption that “what appears regu-\n lar is regular.” See Butler, 244 F.3d at 1340 (citations\n omitted).\n Upon our review of the administrative record, we find\n that the purported gaps Mr. McKinney identified are not\n fatal to our review of the VA’s denial of Mr. McKinney’s\n rulemaking petition. 6 The record not only contains com-\n ments pro and con where appropriate, but also includes the\n agency’s explanation of its decision to reject Mr. McKin-\n ney’s petition. See WWHT, 656 F.2d at 818. Accordingly,\n the record in this case has the required information for us\n to review whether the VA employed reasoned decisionmak-\n ing in rejecting the petition. See Preminger, 632 F.3d at\n 1353–54.\n\n\n\n 6 Mr. McKinney asks us to order the VA to certify the\n completeness of its Rule 17 index, see Pet’r’s Br. 49–50, and\n the VA represents that it is prepared to certify said index,\n see Resp’t’s Br. 42–43. We agree with Mr. McKinney that\n Fed. Cir. R. 17(b)(2) requires that an agency certify the in-\n dex it provides. We accordingly order the VA to certify the\n index of rulemaking record consistent with the require-\n ments of Rule 17(b)(2).\n\fCase: 23-1930 Document: 62 Page: 16 Filed: 01/14/2026\n\n\n\n\n 16 MCKINNEY v. SECRETARY OF VETERANS AFFAIRS\n\n\n\n\n III. Arbitrary and Capricious Denial\n Turning to the stated reasons for the denial of the rule-\n making petition itself, Mr. McKinney argues that the VA’s\n decision is arbitrary and capricious because it ignores the\n crux of his petition—that physical illnesses or diseases\n caused by explosive ordnances follow a “disease process”\n similar to the illnesses and diseases resulting from Section\n 9.20’s five enumerated exceptions currently covered by\n TSGLI. Pet’r’s Br. 50. In particular, Mr. McKinney asserts\n that the VA arbitrarily and capriciously denied his rule-\n making petition by (1) not addressing his “disease process”\n argument; (2) taking a position contrary to its own regula-\n tion; and (3) relying on congressional intent that is not\n clear. Upon our review of the record, we determine that\n the VA did not act arbitrarily or capriciously in denying\n Mr. McKinney’s rulemaking petition. Instead, we find that\n the VA engaged in reasoned decisionmaking and was suffi-\n ciently responsive to Mr. McKinney’s petition. Mr. McKin-\n ney’s three arguments to the contrary are not persuasive,\n and we address them in turn.\n First, Mr. McKinney is incorrect that the VA did not\n address his “disease process” argument in its denial of his\n rulemaking petition. The VA disagreed with Mr. McKin-\n ney’s attempt to draw a direct comparison between illness\n or disease caused by Section 9.20’s enumerated exceptions\n and illness or disease (such as stroke) associated with ex-\n plosive ordnance because the latter relationship is far more\n attenuated. See Final Denial at 15908. According to the\n VA, “courts have interpreted the phrase ‘direct result of a\n traumatic injury and no other cause’ that 38 C.F.R.\n § 9.20(d)(2) uses to mean that a loss is not covered if a\n preexisting condition or disease ‘substantially contributed’\n to the loss.” Id. (citation omitted). In other words, TSGLI\n allows “[a] payment [to] be made . . . only for a qualifying\n loss that results directly from a traumatic injury . . . and\n from no other cause.” 38 U.S.C. § 1980A(c)(1); see also Pro-\n posed Denial at 50983 (“The plain language of 38 U.S.C.\n\fCase: 23-1930 Document: 62 Page: 17 Filed: 01/14/2026\n\n\n\n\n MCKINNEY v. SECRETARY OF VETERANS AFFAIRS 17\n\n\n\n [§] 1980A(a)(1) and (2), (b)(1), (c)(1) and (2) authorizes\n TSGLI benefits for a qualifying loss resulting directly from\n a ‘traumatic injury.’” (emphasis added)). Under Section\n 9.20, the VA chose to allow for coverage for illness or dis-\n ease caused by the five specified exceptions (such as chem-\n ical weapons) because “the physical damage resulting in a\n covered loss would generally occur immediately and re-\n quire prompt medical treatment” and because the damage\n would immediately trigger the “disease process” causing\n the downstream illness or disease. Traumatic Injury Pro-\n tection Rider To Servicemembers Group Life Insurance, 70\n Fed. Reg. 75940, 75941 (Dec. 22, 2005), J.A. 23–24. The\n VA did not find the necessary proof of a similar, categorical\n causal relationship in this record for the theory underlying\n Mr. McKinney’s petition. Although the VA acknowledged\n that “several conditions . . . have a positive association\n with TBI,” the VA also found that “these conditions do not\n immediately manifest.” Final Denial at 15909. The VA\n further explained that “the types of long-term illnesses and\n diseases associated with TBI do not cause the immediate\n type of harm against which TSGLI is designed to protect.”\n Id. Mr. McKinney disputes this characterization, but the\n VA’s conclusion finds support in the administrative record.\n Third-party medical doctors and researchers, for exam-\n ple, acknowledged that the long latent periods after expo-\n sure to an explosive ordnance before a physical illness or\n disease manifests make it “almost impossible in most cases\n to prove that the explosive ordnance, and no other factors,\n caused the illness/disease.” J.A. 1288; see also J.A. 1291\n (two doctors noting that “many common symptoms of TBI\n are also symptoms of other psychological conditions”).\n Mr. McKinney does not explain why the VA acted arbitrar-\n ily or capriciously in crediting medical sources showing an\n inconclusive causal relationship between explosive ord-\n nance, TBI, and subsequent illness or disease. In our view,\n the VA’s denial adequately responded to Mr. McKinney’s\n rulemaking petition, acknowledging the mixed record for\n\fCase: 23-1930 Document: 62 Page: 18 Filed: 01/14/2026\n\n\n\n\n 18 MCKINNEY v. SECRETARY OF VETERANS AFFAIRS\n\n\n\n\n and against granting Mr. McKinney’s petition. See gener-\n ally Final Denial; Proposed Denial; Motor Vehicles,\n 463 U.S. at 43.\n Second, the VA did not arbitrarily and capriciously\n take a position contrary to its regulation in denying\n Mr. McKinney’s petition. The TSGLI program currently\n provides that to receive benefits, one “must suffer a sched-\n uled loss . . . within two years of the traumatic injury.”\n 38 C.F.R. § 9.20(d)(4). According to Mr. McKinney, this\n provision proves one does not need a physical illness or dis-\n ease to immediately manifest, as the VA claimed in its de-\n nial. Pet’r’s Br. 55 (citing Proposed Denial at 50983).\n Mr. McKinney contends that it is therefore arbitrary and\n capricious to deny his rulemaking petition just because the\n TBI-induced illnesses or diseases “may have a latency of\n months to years before manifesting.” Id.\n Mr. McKinney misunderstands the VA’s denial of his\n rulemaking petition. He points to the Chen study 7 the VA\n cited in its denial of his rulemaking petition, which shows\n that the average time between treatment for TBI and the\n onset of stroke was 543 days. Pet’r’s Br. 56; see Final De-\n nial at 15909; Proposed Denial at 50983. Because 543 days\n is within the two-year eligibility period where one is eligi-\n ble for TSGLI benefits, Mr. McKinney believes that the VA\n wrongfully denied his rulemaking petition. See Pet’r’s\n Br. 55–56.\n The VA established the two-year eligibility period as a\n “response to concerns from the uniformed services that one\n year was not enough time for a member to decide whether\n to attempt to salvage a limb.” Final Denial at 15908. This\n eligibility period does not relate to the reason why the VA\n\n\n\n 7 See Yi-Hua Chen et al., Patients with Traumatic\n Brain Injury: Population-Based Study Suggests Increased\n Risk of Stroke, 42 STROKE 2733 (2011) (Chen study).\n\fCase: 23-1930 Document: 62 Page: 19 Filed: 01/14/2026\n\n\n\n\n MCKINNEY v. SECRETARY OF VETERANS AFFAIRS 19\n\n\n\n denied Mr. McKinney’s petition, which instead is based on\n the insufficiently proven causal relationship between\n downstream illnesses and diseases and explosive ordnance.\n See id. at 15909. The VA cited the Chen study, see supra\n n.7, showing the long latent period between TBI and stroke\n onset as further evidence that the direct causal relation-\n ship Mr. McKinney theorized in his rulemaking petition is\n less than clear. See Proposed Denial at 50982–83. The VA\n therefore did not take a position contradictory to its regu-\n lation.\n Finally, Mr. McKinney is incorrect that there is no leg-\n islative support for the VA’s denial of his rulemaking peti-\n tion. Mr. McKinney argues that the one-page\n congressional record discussing the establishment of\n TSGLI “provides no hint of the two year period that VA in-\n troduced in its TSGLI regulation,” and the VA cannot rely\n on the record to deny the rulemaking petition. Pet’r’s\n Br. 56 (emphasis in original). But the reason why the VA\n cited the TSGLI’s legislative history is because it shows\n that “Congress intended to provide TSGLI compensation\n for injuries, rather than diseases, that occur immediately\n after a traumatic event and that require prompt medical\n treatment.” Final Denial at 15909 (emphasis added); see\n also J.A. 18 (statement of Senator Craig discussing the pur-\n pose of the TSGLI program, which is to provide “immediate\n payment” to wounded veterans “to sustain them before\n their medical discharge from the services, when veterans\n benefits kick in”). The VA thus reasoned that covering\n physical illnesses or diseases that may manifest years after\n the traumatic event would be inconsistent with the pro-\n gram’s purpose. Final Denial at 15909. The VA further\n explained that “Congress knows how to include TSGLI cov-\n erage for diseases if it so desires, and it did not do so.” Pro-\n posed Denial at 50983 (citing Russello v. United States, 464\n U.S. 16, 23 (1983)).\n\fCase: 23-1930 Document: 62 Page: 20 Filed: 01/14/2026\n\n\n\n\n 20 MCKINNEY v. SECRETARY OF VETERANS AFFAIRS\n\n\n\n\n CONCLUSION\n We appreciate Mr. McKinney’s effort in urging the VA\n to amend its regulations to expand TSGLI coverage to a\n new category of conditions that can be caused by explosive\n ordnance. However, under the circumstances, the VA did\n not abuse its wide discretion in declining to amend its reg-\n ulations. At bottom, many of the arguments raised involve\n agency policymaking choices that are beyond this court’s\n purview, and there is nothing in the record that warrants\n setting aside the VA’s decision in light of the highly defer-\n ential and extremely limited review we have over the VA’s\n denial of a proposed rulemaking petition.\n We have considered Mr. McKinney’s remaining argu-\n ments and find them unpersuasive. For the foregoing rea-\n sons, we deny Mr. McKinney’s petition for review.\n DENIED\n COSTS\n No costs.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/11240916/", "author_raw": "CHEN, Circuit Judge."}]}	PROST	REYNA	CHEN	1		{"PROST": ", Circuit", "REYNA": ", Circuit", "CHEN": ", Circuit"}	1	0	0	1	null	https://www.courtlistener.com/api/rest/v4/clusters/10774331/	Published	1	2,026	1	[ { "content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code...

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