Drafted and Shafted: Who Should Complain About Male-Only Registration?

SHERRY F. COLB

Cornell law professor comments on a recent opinion by the U.S. Court of Appeals for the Fifth Circuit holding that requiring men but not women to register for the draft is constitutional under mandatory U.S. Supreme Court precedents. Specifically, Colb considers what the U.S. Supreme Court should do if it agrees to hear the case and more narrowly, whether the motives of the plaintiffs in that case bear on how the case should come out.

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Wiener Weiss & Madison v. Fox

Court: US Court of Appeals for the Fifth Circuit

Docket: 19-30688

Opinion Date: August 21, 2020

Judge: Don R. Willett

Areas of Law: Legal Ethics

The Fifth Circuit vacated the district court's grant of summary judgment in favor of the law firms in an action brought by the firms against a former client, seeking to enforce the terms of the parties' contingency fee agreement. After determining that it had jurisdiction over the appeal, the court held that the parties' contingency fee agreement violates Louisiana Rule of Professional Conduct 1.8(a). The court held that a contingency fee arrangement resulting in an attorney owning part of the client's business is a business transaction under Rule 1.8(a). The court explained that, because the terms of the contingency fee agreement in this case give the firms an ownership interest in the client's holding company, Rule 1.8(a) applies, and the firms were required to advise the client to seek the advice of independent counsel. Because the firms failed to do so, the contingency fee award is void. Accordingly, the court remanded for further proceedings.

Nutrition Distribution LLC v. IronMag Labs, LLC

Court: US Court of Appeals for the Ninth Circuit

Docket: 19-55251

Opinion Date: August 25, 2020

Judge: Daniel A. Bress

Areas of Law: Civil Procedure, Legal Ethics

Nutrition Distribution filed suit against IronMags, alleging that the company violated the Lanham Act by falsely advertising IronMag's nutritional supplements. After the district court entered judgment, Nutrition Distribution did not file a notice of appeal but, instead, filed a post-judgment motion for attorneys' fees under Federal Rule of Civil Procedure 54(d) and then filed a notice of appeal 30 days after the district court denied that fees motion. The Ninth Circuit held that, because Nutrition Distribution did not file a notice of appeal within 30 days of the district court's judgment or obtain a Rule 58(e) order extending the time to appeal, the notice of appeal was untimely as to the district court's underlying judgment. The notice of appeal was timely as to the district court's later order denying attorneys' fees. The panel explained that the Federal Rules are clear that ordinarily, the entry of judgment may not be delayed, nor the time for appeal extended, in order to tax costs or award fees. Furthermore, a motion for attorneys' fees does not extend the time to appeal the underlying judgment unless the district court so orders under Rule 58(e). In this case, Nutrition Distribution did not seek such an order, nor did the district court enter one. The panel also held that Nutrition Distribution's attempt to now save its untimely appeal of the underlying judgment by recasting its fees motion as a Rule 59 motion to alter or amend the judgment likewise fails. The panel stated that the 1993 amendments to the Federal Rules and the Supreme Court precedent that gave rise to them make clear that attorneys' fees motions cannot be recharacterized as Rule 59 motions to extend the time to appeal an underlying judgment. Accordingly, the panel affirmed the denial of fees, and otherwise dismissed the appeal for lack of jurisdiction.

Skinner v. Ken's Foods, Inc.

Court: California Courts of Appeal

Docket: B299907(Second Appellate District)

Opinion Date: August 21, 2020

Judge: Tangeman

Areas of Law: Consumer Law, Legal Ethics

The underlying lawsuit arose from plaintiffs' claim that Ken's salad dressing labels were deceptive. In June 2017, plaintiffs served Ken's with their prelawsuit notice and demand to remove claims about olive oil from the labels on its salad dressings. In October 2017, a neutral case evaluator concluded that plaintiffs' claims likely had merit and that the False Advertising Law and Unfair Competition Law claims would likely be certified as a class. In November 2017, Ken's drafted a PowerPoint presentation that described plaintiff's claims, proposed label changes, and thereafter revised its salad dressing labels and finalized the changes in 2018. The Court of Appeal affirmed the trial court's order granting plaintiffs' motion for attorney fees. The court held that the trial court did not err by concluding that plaintiffs were "successful parties" where the sequence of events provides a reasonable basis for the trial court's conclusion that plaintiffs' lawsuit was a catalyst motivating Ken's to change the labels on its salad dressings. Furthermore, there was a reasonable basis for the trial court to conclude that injunctive relief was the primary relief sought. The court also held that the lawsuit was meritorious and that plaintiffs reasonably attempted to settle the matter short of litigation. Finally, the court rejected Ken's public policy argument.