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November 2020

The Ninth Circuit has posted revised civil jury instructions

The Ninth Circuit has posted revisions (dated September 2020) to its Manual of Model Civil Jury Instructions.

The changes include:

  • The Comment to Instruction 9.1 (SECTION 1983 CLAIM—INTRODUCTORY INSTRUCTION) now notes Rawson v. Recovery Innovations, Inc., 975 F.3d 742 (9th Cir. 2020), which explains the four tests that may aid in identifying state action.
  • The Comment to Instruction 9.2 (CAUSATION) now notes Reynaga Hernandez v. Skinner, 969 F.3d 930, 941-42 (9th Cir. 2020) (minimum level of involvement needed for § 1983 liability under the integral-participant doctrine).
  • The Comments to Instructions 9.21 (PARTICULAR RIGHTS—FOURTH AMENDMENT—UNREASONABLE SEIZURE OF PERSON—EXCEPTION TO WARRANT REQUIREMENT—TERRY STOP), and 9.22 (PARTICULAR RIGHTS—FOURTH AMENDMENT—UNREASONABLE SEARCH—EXCEPTION TO WARRANT REQUIREMENT—TERRY FRISK), and 9.23 (PARTICULAR RIGHTS—FOURTH AMENDMENT—UNREASONABLE SEIZURE OF PERSON—PROBABLE CAUSE ARREST) also discuss Reynaga Hernandez, noting the inapplicability of Terry to unlawful presence cases.
  • The Comment to Instruction 9.32 (PARTICULAR RIGHTS—FOURTEENTH AMENDMENT—DUE PROCESS—INTERFERENCE WITH PARENT/CHILD RELATIONSHIP) now notes Dees v. Cty. of San Diego, 960 F.3d 1145, 1152 (9th Cir. 2020) (Fourteenth Amendment claim based on a minor being separated from his or her parents requires a plaintiff to establish that an actual loss of custody occurred, rather than the mere threat of separation).
  • The Comment to Instruction 10.1 (CIVIL RIGHTS—TITLE VII—DISPARATE TREATMENT—WHEN EVIDENCE SUPPORTS “SOLE REASON” OR “MOTIVATING FACTOR”) now suggests that in sexual orientation or gender identity cases, the word “sex” should be modified or explained consistent with Bostock v. Clayton County, 140 S. Ct. 1731, 1741 (2020).
  • The Comments to Instruction 11.1 (AGE DISCRIMINATION—DISPARATE TREATMENT—ELEMENTS AND BURDEN OF PROOF) and 11.11 (AGE DISCRIMINATION—DEFENSES—REASONABLE FACTOR OTHER THAN AGE) now discuss Babb v. Wilkie, 140 S. Ct. 1168, 1177 (2020) (but-for causation).
  • The Introductory Comment to Chapter 12 (AMERICANS WITH DISABILITIES ACT) now notes Lopez v. Catalina Channel Express, Inc., 974 F.3d 1030 (9th Cir. 2020) (burden shifting in architectural barrier cases).
  • The Comment to Instruction 15.10 (INFRINGEMENT—ELEMENTS—VALIDITY—UNREGISTERED MARK—DISTINCTIVENESS) and 15.19 (INFRINGEMENT—LIKELIHOOD OF CONFUSION—FACTOR—STRENGTH OF TRADEMARK) now note U.S. Patent and Trademark Office v. Booking.com B.V., 140 S. Ct. 2298, 2308 (2020) (rejecting proposition that combining generic term with “.com” yields generic composite).
  • Instruction 15.12 (INFRINGEMENT—ELEMENTS—VALIDITY—TRADE DRESS—NON-FUNCTIONALITY REQUIREMENT) has been rewritten to reflect the holding in Blumenthal Distributing, Inc. V. Herman Miller, Inc., 963 F.3d 859 (9th Cir. 2020).
  • The Comment to Instruction 15.25 (DEFENSES—NOMINATIVE FAIR USE) now notes the unavailability of the defense where the marks are not identical. See VIP Products v. Jack Daniel’s Properties, Inc., 953 F.3d 1170, 1174 (9th Cir. 2020).
  • The Comment to Instruction 15.30 (TRADEMARK DILUTION (15 U.S.C. § 1125(c))) now notes that, per VIP Porudcts v. Jack Daniel’s Properties, Inc., 953 F.3d 1170, 1176 (9th Cir. 2020), there can be no dilution by tarnishment if a mark is used in a “noncommercial” fashion, and that a use is “noncommercial if it does more than propose a commercial transaction,” even if the mark is used to sell a product. If a mark has been determined to be expressive under the First Amendment, any claim for dilution by tarnishment is foreclosed. The Comment also notes the extensive discussion of trade dress dilution in Blumenthal Distributing.
  • The Comment to Instruction 17.5 (COPYRIGHT INFRINGEMENT—ELEMENTS—OWNERSHIP AND COPYING (17 U.S.C. § 501(a)–(b))), notes a change in the second prong of the infringement element occasioned by the en banc decision in Skidmore v. Led Zeppelin, 905 F.3d 1064 (9th Cir. 2020).
  • The Comment to Instruction 17.7 (COPYRIGHT INFRINGEMENT—COPYRIGHT REGISTRATION CERTIFICATE (17 U.S.C. § 410(c))) now notes Unicolors, Inc., v. H&H Hennes & Mauritz, L.P., 959 F.3d 1194, 1200 (9th Cir. 2020) (district court obligation to notify Register of Copyrights; no intent-to-defraud requirement for registration invalidation; “single unit of publication”).
  • The Comment to Instruction 17.17 (COPYING—ACCESS AND SUBSTANTIAL SIMILARITY) notes that Skidmore rejects the “inverse ratio rule.”
  • The Comment to Instruction 17.19 (SUBSTANTIAL SIMILARITY—EXTRINSIC TEST; INTRINSIC TEST) now notes Corbello v. Valli, 974 F.3d 965, 975 (9th Cir. 2020) (applying extrinsic test for similarity to elements of challenged work that are undisputedly factual). It also slightly edited its description of the holding in Skidmore, consistent with the newer en banc decision.

(11/10/20) (permalink)

 
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