Should the Law Prohibit Anti-Fat Discrimination?

SHERRY F. COLB

Cornell law professor Sherry F. Colb explores the problem of fat discrimination and considers what a law of anti-fat discrimination might look like, and why it could be important. Professor Colb explores the similarities and differences between legally protected characteristics and fatness and expresses optimism that a change in law could persuade some individuals to recognize fat people for the colleagues, students, friends, partners, and neighbors that they are.

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Members-Only Unionism is Lawful and Can Make Sense

SAMUEL ESTREICHER

NYU law professor Samuel Estreicher responds to an op-ed by Ron Holland criticizing the recent announcement of a members-only union of 300 Google workers. Professor Estreicher points out several errors and assumptions in Mr. Holland’s piece, and he argues that, in sum, there is no good public policy case for barring or restricting members-only unionism.

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Ariix, LLC v. NutriSearch Corp.

Docket: 19-55343

Opinion Date: January 22, 2021

Judge: Kenneth K. Lee

Areas of Law: Business Law, Civil Rights, Constitutional Law

The Ninth Circuit reversed the district court's dismissal of a false advertising claim under the Lanham Act, remanding for further proceedings. At issue is whether the First Amendment shields a publisher of supposedly independent product reviews if it has secretly rigged the ratings to favor one company in exchange for compensation. The panel ruled that this speech qualifies as commercial speech only, and that a nonfavored company may potentially sue the publisher for misrepresentation under the Lanham Act. In this case, Ariix alleges that NutriSearch rigged its ratings to favor Usana under a hidden financial arrangement. The panel held that Ariix plausibly alleges that the nutritional supplement guide is commercial speech, is sufficiently disseminated, and contains actionable statements of fact. However, the panel remanded for the district court to consider the "purpose of influencing" element under the Lanham Act.

South Bay United Pentecostal Church v. Newsom

Docket: 20-56358

Opinion Date: January 22, 2021

Judge: Kim McLane Wardlaw

Areas of Law: Civil Rights, Constitutional Law, Government & Administrative Law, Health Law

In light of the surging community spread of COVID-19, California's public health and epidemiological experts have crafted a complex set of regulations that restrict various activities based on their risk of transmitting the disease and the projected toll on the State's healthcare system. California permits unlimited attendance at outdoor worship services and deems clergy and faith-based streaming services "essential," but has temporarily halted all congregate indoor activities, including indoor religious services, within the most at-risk regions of the state. South Bay challenges this restriction, along with others, under provisions of the Free Exercise Clause of the First Amendment of the United States and California Constitutions. South Bay argues that the current restrictions on indoor services prohibit congregants' Free Exercise of their theology, which requires gathering indoors. The district court concluded that California's restrictions on indoor worship are narrowly tailored to meet its compelling—and immediate—state interest in stopping the community spread of the deadly coronavirus. The Ninth Circuit affirmed the district court's denial of South Bay's request to enjoin California's temporary prohibition on indoor worship under the Regional Stay at Home Order and Tier 1 of the Blueprint. The panel concluded that, although South Bay has demonstrated irreparable harm, it has not demonstrated that the likelihood of success, the balance of the equities, or the public interest weigh in its favor. The panel stated that California has a compelling interest in reducing community spread of COVID-19, and the Stay at Home Order is narrowly tailored to achieve the State's compelling interest in stemming the recent case surge. The panel also concluded that South Bay has not demonstrated a likelihood of success on the merits with respect to its challenge to California's state-wide ban on indoor singing and chanting. In this case, the State's ban on these activities is rationally related to controlling the spread of COVID-19. The panel could not, however, conclude that the 100- and 200-person attendance caps on indoor worship under Tiers 2 and 3 of the Blueprint survive strict scrutiny. The panel explained that the State has not shown that less restrictive measures, such as basing attendance limits on the size of the church, synagogue or mosque would cause any greater peril to the public. The panel remanded to the district court with instructions to enjoin the State from imposing the 100- and 200-person caps under Tiers 2 and 3 of the Blueprint.

America Unites for Kids v. Rousseau

Dockets: 16-56390, 19-55088

Opinion Date: January 22, 2021

Judge: Michael H. Simon

Areas of Law: Environmental Law

Plaintiffs, two environmental organizations, filed a citizens' civil action against administrators and board members of the Santa Monica Malibu Unified School District to enforce the Toxic Substances Control Act (TSCA), 15 U.S.C. 2601–2629. Plaintiffs sought remediation of several school buildings containing dangerous levels of polychlorinated biphenyls (PCBs). On appeal, plaintiffs challenge the district court's sanctions order and its dismissal of one of the plaintiffs for lack of standing, and the district court's decision in December 2018 partially modifying the 2016 permanent injunction. Plaintiffs also ask to take judicial notice of a document dated September 11, 2019, which plaintiffs did not present to the district court. The Ninth Circuit vacated and remanded the district court's sanctions order in light of the Supreme Court's subsequent decision in Goodyear Tire & Robber Co. v. Haeger, 137 S. Ct. 1178 (2017), which clarified the procedural requirements and substantive limitations that apply when a district court imposes sanctions under its inherent authority, rather than pursuant to any statute or rule. The panel also reversed the district court's dismissal of one plaintiff for lack of standing. The panel affirmed in part the district court's 2018 amended judgment and permanent injunction (except for the sanctions order, which is vacated and remanded). Finally, the panel denied plaintiffs' request for judicial notice.