August 9, 2007 Ninth Circuit Opinions
On Thursday, August 9, 2007, the Ninth Circuit issued four published opinions:
In Grocery Outlet Inc. v. Albertson’s Inc., in a per curiam decision, the Ninth Circuit upheld a preliminary injunction barring Grocery Outlet from using the trademarked name “Lucky.” The court held there was no abuse of discretion in the District Court’s finding that Albertson’s was showed a strong likelihood of success on the merits, or in the conclusion that Albertson’s did not abandon the trademark. Judges Wallace and McKeown writing concurring opinions discussing the burden of proof for an abandonment defense. Wallace holds the burden is strict, which he defines as requiring “clear and convincing evidence.” McKeown asserts that the Circuit has not decided the appropriate burden.
In Hernandez de Anderson v. Gonzales, the Ninth Circuit held that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)may not be retroactively applied to applications for naturalization filed prior to its effective date, where such application would cancel rights held prior to the effective date, and where the immigrant can show an objectively reasonable reliance upon prior law. Here, at the time she applied for naturalization, the immigrant would have been eligible to move for suspension of deportation proceedings. After IIRIRA, she was no longer eligible to move to cancel removal proceedings. The Court held that it was objectively reasonable for her to rely on her eligibility to seek to suspend deportation.
In Lockett v. Catalina Channel Express., the Ninth Circuit held that an ADA violation does not occur where an entity makes a one-time reasonable judgment under 28 CFR §38.208 (permitting denial of accommodation where a risk to health and safety is posed), while investigating the competing interests between the health and safety of one customer and the ADA rights of another. Here, the ferry service declined to sell a ticket to a specific location of its boat to a blind passenger accompanied by a guide dog, where the location had been reserved to be animal dander free to accommodate an allergic passenger. The Court noted that the ferry service’s change of policy to allow guide animals in all locations otherwise accessible was wise.
In Craig v. M & O Agencies, Inc., the Ninth Circuit reversed the grant of summary judgment on Title VII claims against an a supervisor and employer, where a jury could find the alleged conduct created a hostile work environment and where the employee’s delay of nineteen days in reporting the unwelcome conduct was not objectively unreasonable. The Court also held that, under Arizona law, a supervisor’s repeated propositioning of an employee, following her into the restroom, and grabbing her and sticking his tongue in her mouth can be outrageous conduct. However, the employer is not responsible for such conduct by its employee.
