July 10th Ninth Circuit Opinions
In U.S. v. Horvath, the Ninth Circuit held that there can be no criminal liability for making a false statement to a probation officer in a presentence interview, where the probation officer is required to include the statement in the presentence report to the judge. 18 U.S.C. §1001 makes it an offense to knowingly make a materially false statement to the federal government a crime, but creates an exception where the false statement is made to a judge in a judicial proceeding. The Court’s decision extends that exception to the presentence environment.
In Fisher v. NOS Communications, a multidistrict litigation case arising partially out of Nevada, the Ninth Circuit affirmed the dismissal of FCC and other state law tort claims, reversed the district court’s denial of remand for claims brought under Washington’s consumer protection laws, and reversed the district court’s dismissal of certain “Truth in Billing” and state law tort claims. The plaintiffs are customers of interstate telecommunications companies. Their complaints, separately filed in assorted courts, alleged claims associated with the defendants’ billing practices. The FCC claims were dismissed as the claims relied upon challenges to filed and approved tariffs. Remand was upheld where the only claims alleged were state law claims that could be determined without reference to federal law. The Court held that the stated law claims are preempted where such claims seek damages referencing the filed-rate, but claims that do not attack the rates nor require reference to the filed-rate are not preempted (a ruling that keeps the claims of Nevada plaintiff’s, Fisher, alive). “Truth-in-Billing” claims predating the Truth-in-Billing the effective date of that regulation were dismissed, as the Truth-in-Billing regulations do not apply retroactively.
In U.S. v. Snellenberger, the Ninth Circuit amended the opinion originally filed April 3, 2007, and withdrew the concurring opinion originally filed by Judge Hawkins. Judge Hawkins joins in the amended opinion, which does not alter the outcome of the decision.
