The Ninth Circuit has issued a revised set of
Model Jury Instructions. The changes are described below. The criminal instructions have also been revised; I will post a summary of those changes shortly.
The case note re state action/social media pages, Garnier v. O’Connor-Ratcliff, 41 F.4th 1158, 1170-73 (9th Cir. 2022), is replaced by
a Note re Lindke v. Freed, 601 U.S. 187, 199 (2024), in the Comment to Instruction 9.1 (Section 1983 Claim—Introductory Instruction).
The Comment to Instruction 9.10 (Particular Rights—First Amendment—Public Employees—Speaking as a Private Citizen) now cites Lindke, Linthicum v. Wagner, 94 F.4th 887 (9th Cir. 2024), and Nevada Commission on Ethics v. Carrigan, 564 U.S. 117 (2011).
The Comment to Instruction 9.12 (Particular Rights—Fourth Amendment—Unreasonable Search—Generally) now cites United States v. Payne, 99 F.4th 495, 505 (9th Cir. 2024).
The Comment to Instruction 9.13 (Particular Rights—Fourth Amendment—Unreasonable Search—Exception to Warrant Requirement—Search Incident to Arrest) also cites Payne.
The Comment to Instruction 9.21 (Particular Rights—Fourth Amendment—Unreasonable Seizure of Person—Exception to Warrant Requirement—Terry Stop) now cites United States v. Ramirez, 98 F.4th 1141, 1144-46 (9th Cir. 2024).
The Comment to Instruction 9.25 (Particular Rights—Fourth Amendment—Unreasonable Seizure of Person—Excessive Force) now discusses Hart v. City of Redwood City, 99 F.4th 543, 553-54 (9th Cir. 2024).
The Comment to Instruction 9.34 Qualified Immunity now cites Rieman v. Vazquez, 96 F.4th 1085, 1095 (9th Cir. 2024).
The Introductory Comment to Chapter 10 (CIVIL RIGHTS—TITLE VII—EMPLOYMENT DISCRIMINATION; HARASSMENT; RETALIATION) now cites Teutscher v. Woodson, 835 F.3d 936, 954 (9th Cir. 2016), Passatino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 512 (9th Cir. 2000), Opara v. Yellen, 57 F.4th 709, 721 (9th Cir. 2023), Hittle v. City of Stockton, California, 101 F.4th 1000, 1012 (9th Cir. 2024), Comcast Corp. v. Nat’l Ass’n of African American-Owned Media, 589 U.S. 327, 337 (2020), and Ricci v. DeStefano, 557 U.S. 557 (2009).
The words "[woman] [man]" in element five of Instruction 10.5 (Civil Rights—Title VII—Hostile Work Environment—Harassment Because Of Protected Characteristics—Elements) have been replaced with "person [with the plaintiff’s protected characteristic]." The Comment now cites Mattioda v. Nelson, 98 F. 4th 1164, 1177 (9th Cir. 2024).
The case notes in the penultimate paragraph of the Comment to "Instruction 10.7 Civil Rights—Title VII—Hostile Work Environment Caused by Non-Immediate Supervisor or by Co-Worker—Claim Based on Negligence" have been edited.
The discussions of protected activity and but-for cause in the Comment to
Instruction 10.8 (Civil Rights—Title VII—Retaliation—Elements and Burden of Proof) have bee edited.
The Comment to Instruction 10.10 (Civil Rights—Title VII— “Adverse Employment Action” in Retaliation Cases) now cites Coszalter v. City of Salem, 320 F.3d 968, 975 (9th Cir. 2003).
The Comment to Instruction 10.11 (Civil Rights—Title VII—“Adverse Employment Action” in Disparate Treatment Cases) now cites Muldrow v. City of St. Louis, 144 S. Ct. 967, 977 (2024).
The Comment to Instruction 10.13 (Civil Rights—Title VII—“Constructive Discharge” Defined now cites Green v. Brennan, 578 U.S. 547, 555 (2016).
The Comment to Instruction 10.14 (Civil Rights—Title VII—Defense—Bona Fide Occupational Qualification) now cites Teamsters Local Union No. 117 v. Washington Dep’t of Corr., 789 F.3d 979, 986 (9th Cir. 2015).
The discussion of bona fide seniority systems in the Comment to Instruction 10.15 (Civil Rights—Title VII—Defense—Bona Fide Seniority System) has been edited.
The discussion of nonwage compensatory damages in the Introductory Comment to Chapter 12 (AGE DISCRIMINATION) has been edited.
The Comment to Instruction 11.1 (Age Discrimination—Disparate Treatment—Elements and Burden of Proof) now cites Babb v. Wilkie, 140 589 U.S. Ct. 411 (2020).
The Comment to Instruction 11.10 (Age Discrimination—Defenses—Bona Fide Employee Benefit Plan) now cites Meacham v. Knolls Atomic Power Lab’y, 554 U.S. 84 (2008).
The Comment to Instruction 11.13 (Age Discrimination—Damages—Back Pay—Mitigation) now cites Tamosaitis v. URS Inc., 781 F.3d 468 (9th Cir. 2015), and . Ahlmeyer v. Nevada Sys. of Higher Educ., 555 F.3d 1051, 1059 (9th Cir. 2009).
A sentence in the fifth paragraph of the Introductory Comment to Chapter 12 (AMERICANS WITH DISABILITIES ACT) is rewritten: "In the employment context, a qualified individual with a disability may show an ADA discrimination
primarily in either of two ways: by presenting evidence of disparate treatment or by showing a failure to accommodate." The Introductory Comment also now cites Mattioda v. Nelson, 98 F. 4th 1164 (9th Cir. 2024). Also, the final two paragraphs have been deleted, and replaced with a new paragraph discussing Alvarado v. Cajun Operating Co., 588 F.3d 1261 (9th Cir. 2009), and Bayer v. Neiman Marcus Grp., Inc., 861 F.3d 853 (9th Cir. 2017).
Instructions 12.1 (ADA Employment Actions—Actual Disability—Elements), 12.2 (ADA Employment Actions—Record of Disability—Elements), 12.3 (ADA Employment Actions—Regarded as Disability—Elements), 12.5 (ADA—Work as a Major Life Activity), and 12.6 (Interacting with Others as Major Life Activity) now include optional pronouns. The Comment to Instruction 12.3 deletes the citation to SoCal Recovery, LLC v. City of Costa Mesa, 56 F.4th 802, (9th Cir. 2023).
Language regarding the Lanham Act has been removed from the first paragraph of the Comment to Instruction 15.8 (Infringement—Elements—Presumed Validity and Ownership—Registered Trademark (15 U.S.C. §§ 1057, 1065 and 1115)). The case note for Brookfield Communications Inc. v. West Coast Entertainment Corp., 174 F.3d 1036 (9th Cir. 1999), and the penultimate paragraph have been removed from the Incontestible marks paragraph of the Incontestability section of the Comment.
The Comment to Instruction 15.9 (Infringement—Elements—Validity—Unregistered Marks) has been thoroughly rewritten.
The Comment to Instruction 15.11 (Infringement—Elements—Validity—Distinctiveness—Secondary Meaning) has been thoroughly rewritten.
Instruction 15.19A (Expressive Works) now reads:
The defendant’s work, [insert name of allegedly infringing work], is an expressive work that is protected by the First Amendment.
Therefore, you may findproceed to the likelihood-of-confusion test for the plaintiff on [his] [her] [its] trademark infringement claim only if the plaintiff proves by a preponderance of the evidence that the defendant’s use of the plaintiff’s mark is explicitly misleading as to the source or content of [insert name of allegedly infringing work]. The defendant’s use of the mark is explicitly misleading if it is an explicit indication, overt claim, or explicit misstatement that the [insert name of allegedly infringing work] is sponsored by or somehow associated with the plaintiff.
The Comment has been thoughly rewritten.
The second paragraph of Instruction 15.27 (Trademark Damages—Plaintiff’s Actual)
Damages(15 U.S.C. § 1117(a)) now reads:
The plaintiff has the burden of proving that [he][she][other pronoun] sustained actual damages by a preponderance of the evidence. If you find that the plaintiff proved actual damages, you may make reasonable inferences from the evidence to calculate the amount of damages. Damages means the amount of money which will reasonably and fairly compensate the plaintiff for any [injury] [and] [or] [property damage] you find was caused by the defendant’s infringement of the plaintiff’s registered trademark.
The Comment has been thoroughly rewritten.
Instruction 15.29 has been retitled
"Trademark Damages—Disgorgement of Defendant’s Profits (15 U.S.C. § 1117(a))." The Comment has been thoroughly rewritten.
The Comment to the Introductory Comment of Chapter 18. (SECURITIES EXCHANGE ACT) now cites Macquarie Infrastructure Corp. v. Moab Partners, 601 U.S. 257 (2024).
The Comment to Instruction 18.3 (Securities—Misrepresentations or)
Omissions—Materiality) now cites In re Sorrento Therapeutics, Inc. Sec. Litig., 97 F.4th 634, 641 (9th Cir. 2024), and observes that in "evaluating materiality, courts may consider SEC interpretive guidance."
Instruction 18.5 has been retitled "Securities—Knowingly
and Recklessly. The Comment has been thoroughly rewritten.
Instruction 18.8 (Securities—Causation) adds a new sentence: "To establish economic injury or loss, the plaintiff must prove that the alleged misrepresentation[s] or omission[s] artificially inflated the price of the security." The Comment adds a paragraph discussing In re Genius Brands Int'l, Inc. Sec. Litig., 97 F.4th 1183 (9th Cir. 2024).