Dear House Judiciary Committee: In Questioning William Barr, Employ the Ethics Complaint That 27 Distinguished DC Lawyers Filed Wednesday

FREDERICK BARON, DENNIS AFTERGUT, AUSTIN SARAT

Frederick Baron, former associate deputy attorney general and director of the Executive Office for National Security in the Department of Justice, Dennis Aftergut, a former federal prosecutor, and Austin Sarat, Associate Provost and Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College, call upon the House Judiciary Committee to carefully read the ethics complaint by 27 distinguished DC lawyers against William Barr before questioning him today, July 28, 2020.

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Floyd v. American Honda Motor, Co.

Docket: 18-55957

Opinion Date: July 28, 2020

Judge: Boggs

Areas of Law: Class Action, Consumer Law

Plaintiffs filed a putative class action raising warranty claims arising out of crashes or injuries caused by the alleged "rollaway effect" of certain Honda Civic vehicles. The district court dismissed plaintiffs' claims under the Magnuson-Moss Warranty Act (MMWA) and state law for express and implied warranty against Honda. The Ninth Circuit held that the Class Action Fairness Act (CAFA) may not be used to evade or override the MMWA's specific numerosity requirement. In this case, plaintiffs name only three individuals, but argue that, by satisfying CAFA requirements, they are relieved of the MMWA's obligation to name at least one hundred plaintiffs. The panel rejected plaintiffs' argument and affirmed the district court's dismissal of the MMWA claim. The panel vacated the district court's dismissal of the state law claims, holding that the district court erred in not considering whether plaintiffs' state law claims met the diversity requirements of CAFA even if the MMWA claim failed. Therefore, the district court improperly dismissed the state law claims based only on lack of supplemental jurisdiction.

Moore v. Mars Petcare US, Inc.

Docket: 18-15026

Opinion Date: July 28, 2020

Judge: Paez

Areas of Law: Consumer Law

Plaintiffs filed a putative class action against pet food manufacturers and others, challenging the marketing of so-called prescription pet food under California's consumer protection laws and federal antitrust law. Plaintiffs alleged that the prescription requirement and advertising lead reasonable consumers falsely to believe that such food has been subject to government inspection and oversight, and has medicinal and drug properties, causing consumers to pay more or purchase the product when they otherwise would not have. The Ninth Circuit reversed the district court's dismissal of plaintiffs' claims under California's Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act for failure to state a claim. The panel held that the district court erred in dismissing the California state law consumer protection claims, because plaintiffs have sufficiently alleged a deceptive practice under the reasonable consumer test. The panel also held that plaintiffs' complaint satisfies the Federal Rule of Civil Procedure 9(b) heightened pleading standard in alleging fraud. In this case, plaintiffs alleged sufficient facts to show that prescription pet food and other pet food were not materially different. Finally, the panel held that plaintiffs alleged sufficient reliance based on the word "prescription" and the "Rx" symbol.

Orellana v. Barr

Docket: 19-70164

Opinion Date: July 28, 2020

Judge: Milan D. Smith

Areas of Law: Criminal Law, Immigration Law

The Ninth Circuit denied a petition for review challenging petitioner's removal for committing two crimes involving moral turpitude (CIMT). The panel held that the BIA did not err in concluding that a California Penal Code 646.9(a) criminal stalking conviction qualifies as a CIMT because a section 646.9(a) offense is categorically a CIMT. The panel stated that the BIA's reliance on In re Ajami, 22 I. & N. Dec. 949 (B.I.A. 1999), to determine that a section 646.9(a) criminal stalking conviction constitutes a CIMT is entitled to Skidmore deference, rather than Chevron deference. Pursuant to the panel's review of the statutory text and in light of its CIMT precedents, the panel concluded that section 646.9 does not plainly and specifically criminalize conduct outside the contours of the federal definition of a CIMT. The panel also held that the BIA reasonably concluded that petitioner's two section 646.9(a) counts of conviction did not arise out of a single scheme of criminal misconduct. In this case, Count 1 of the state felony complaint involved petitioner willfully and maliciously following and harassing one person between June 1, 2015 and April 26, 2017. Count 2 involved the same conduct by petitioner against a different person between March 1, 2017 and April 26, 2017. Accordingly, petitioner is removable as charged under 8 U.S.C. 1227(a)(2)(A)(ii).