The People of the State of CALIFORNIA, Plaintiff-Appellee, v. INTELLIGENDER, LLC, Defendant-Appellant.
No. 13-56806
United States Court of Appeals, Ninth Circuit
Filed Nov. 7, 2014.
771 F.3d 1169
Argued and Submitted Aug. 4, 2014.
Where, as here, the abstract of judgment unambiguously specifies that Defendant pleaded guilty to a specific count, we look to the facts alleged in that count in the charging document. We recognize that some think that a different rule should apply. Cabantac, 736 F.3d at 789 (order) (Murguia, J., dissenting from the denial of rehearing en banc). Unless and until our cases are overruled by an intervening Supreme Court or en banc decision, though, we are bound by that rule. Miller, 335 F.3d at 899-900. Litigants may, of course, preserve the argument for en banc or Supreme Court review. Or litigants may argue that an ambiguity exists in the particular documents at hand. But our precedent squarely forecloses the argument that one isolated sentence in Vidal controls; the phrase “as charged in the Information (or Indictment)” is not required where the documents are unambiguous.
CONCLUSION
California Health and Safety Code section 11351 is “divisible” within the meaning of Descamps, 133 S.Ct. 2276. Because the criminal complaint specified that Count 1 involved cocaine and the abstract of judgment specified that Defendant pleaded to Count 1, the district court correctly concluded that Defendant had been convicted of a “drug trafficking offense” under
AFFIRMED.
Douglas J. Collodel (argued), Sedgwick LLP, Los Angeles, CA; Paul Jeffrey Riehle, Nora Wetzel, Sedgwick LLP, San Francisco, CA, for Defendant-Appellant.
Kristine A. Lorenz (argued), San Diego City Attorney‘s Office, San Diego, CA, for Plaintiff-Appellee.
Before: Stephen REINHARDT, KIM McLANE WARDLAW, and CONSUELO M. CALLAHAN, Circuit Judges.
WARDLAW, Circuit Judge:
This case sits squarely at the intersection of the Class Action Fairness Act (“CAFA“) and a sovereign‘s right to bring an enforcement action to protect its citizens from unscrupulous, fraudulent, or harmful business practices. The district court approved a CAFA settlement between a nationwide certified class of disappointed purchasers of the IntelliGender Prediction Test and defendant IntelliGender, which sold and advertised the Test as an accurate predictor of a fetus‘s gender using the mother‘s urine sample. Subsequently, the People of the State of California filed an enforcement action against IntelliGender under the State‘s Unfair Competition and False Advertising Laws, largely based on the same claims asserted in the CAFA class action. The State seeks civil penalties, injunctive relief, and restitution for some individuals
I.
A.
Earlier this year, the Supreme Court explained:
Congress enacted CAFA in order to amend the procedures that apply to consideration of interstate class actions. In doing so, Congress recognized that class action lawsuits are an important and valuable part of the legal system. It was concerned, however, that certain requirements of federal diversity jurisdiction,
28 U.S.C. § 1332 , had functioned to keep cases of national importance in state courts rather than federal courts. Miss. ex rel. Hood v. AU Optronics Corp., — U.S. —, 134 S.Ct. 736, 739, 187 L.Ed.2d 654 (2014) (citations omitted) (internal quotation marks omitted).
The Senate stated its concerns more bluntly: “[M]ost class actions are currently adjudicated in state courts, where the governing rules are applied inconsistently (frequently in a manner that contravenes basic fairness and due process considerations) and where there is often inadequate supervision over litigation procedures and proposed settlements.” S.Rep. No. 109–14, at 4 (2005), 2005 WL 627977, at *5. In an effort to curb these perceived abuses, Congress loosened the requirements for diversity jurisdiction by adding
Complementing the expansion of federal jurisdiction to ensure uniformity and fairness is CAFA‘s class action settlement notice requirement,
Aside from securing compensation for citizens, state enforcement actions serve other interests such as protecting citizens from future harm, and these interests might not be served by intervention in ongoing settlement proceedings. Thus, although the role of potential objector to a proposed settlement under CAFA serves important interests, a sovereign‘s ability to bring enforcement actions against private parties that violate the law serves equally if not more important public interests. Nothing in CAFA‘s notification requirements could be read to interfere with the power of states or the federal government to bring enforcement actions.
B.
California‘s Business and Professions Code prohibits false advertising under
California‘s unfair competition law (UCL) (
Under the enforcement provisions of the UCL, public prosecutors as well as any “person who has suffered injury in fact and has lost money or property as a result of the unfair competition” may bring an action.
C.
IntelliGender, LLC owns and manufactures the IntelliGender Prediction Test. It advertises on its website: “IntelliGender‘s Gender Prediction Test is an affordable, simple-to-use urine test that provides immediate gender results in the privacy and comfort of the home. In minutes, the IntelliGender Gender Prediction Test indicates your gender result based upon an easy to read color match. Green indicates
D.
On November 9, 2012, the People of the State of California, by and through the San Diego City Attorney, filed an action in California state court against IntelliGender, LLC and its owners for violations of California‘s UCL and FAL. The State sought to “enjoin [IntelliGender] from engaging in unfair competition and untrue or misleading advertising . . . [and sought] to obtain civil penalties, restitution, and other remedies for the Defendants’ violations of law.”
IntelliGender removed the action to the Federal District Court for the Southern District of California. The district court subsequently granted IntelliGender‘s motion to change venue to the Central District of California pursuant to
On August 26, 2013, IntelliGender moved in the Gram action for a permanent or preliminary injunction to enforce the court‘s final order and judgment by enjoining the State from prosecuting the enforcement action. It argued that an injunction was “necessary in aid of preserving the Court‘s jurisdiction pursuant to the All Writs Act,
IntelliGender next moved in the Gram action for an injunction against the State‘s restitution claims only. IntelliGender argued that insofar as the State sought restitution on behalf of members of the settlement class, such relief should be enjoined because allowing the claims to go forward would amount to a double recovery and run afoul of the doctrine of res judicata. In short, allowing the restitution claims to proceed would undermine the finality of the class action settlement. On October 16, 2013, the district court also denied this motion.
II.
“Whether an injunction may issue under the Anti-Injunction Act is a question of law reviewed de novo.” California v. Randtron, 284 F.3d 969, 974 (9th Cir. 2002). If an injunction falls within the purview of the Anti-Injunction Act, then we review for abuse of discretion the district court‘s decision whether to grant the injunction. Id.
The Anti-Injunction Act,
There is no doubt that the first two elements are met with respect to both of IntelliGender‘s motions. First, the district court entered a final judgment in the Gram class action. Second, the Gram class action included the same causes of action or claims now brought by the State of California. Specifically, the State alleges causes of action for: (1) violation of California Business and Professions Code
The third element, whether sufficient privity exists between the State and the class members to warrant the application of res judicata, is the crux of this case. See United States v. Bhatia, 545 F.3d 757, 759 (9th Cir.2008) (noting that the doctrine of res judicata “require[s] privity between parties“). “Privity is a legal conclusion designating a person so identified in interest with a party to former litigation that he represents precisely the same right in respect to the subject matter involved.” Id. (internal quotation marks omitted). And, as the Supreme Court recently cautioned, “issuing an injunction under the
A.
The district court correctly denied IntelliGender‘s motion to enjoin the State‘s enforcement action in its entirety.7 The court reasoned that IntelliGender had not met its burden of showing that the CAFA class action settlement could bind the State in its sovereign capacity, where it asserted both public and private interests. IntelliGender failed to carry that burden because it is an impossible one to bear.
In Herman v. South Carolina National Bank, 140 F.3d 1413 (11th Cir.1998), the Eleventh Circuit held that the federal government‘s enforcement action seeking to vindicate both private and public concerns was not barred by the prior settlement of a private class action on those same claims. Relying on several Supreme Court cases, the Eleventh Circuit explained that “[t]hese ERISA cases are consistent with the well-established general principle that the government is not bound by private litigation when the government‘s action seeks to enforce a federal statute that implicates both public and private interests.” Id. at 1425; see Hathorn v. Lovorn, 457 U.S. 255, 268 n. 23, 102 S.Ct. 2421, 72 L.Ed.2d 824 (1982) (holding that giving a state court authority to adjudicate Voting Rights Act § 5 issues arising in disputes between private parties does not “frustrate the Attorney General‘s enforcement of the Act” because “[t]he Attorney General is not bound by the resolution of § 5 issues in cases to which he was not a party,” and, more broadly, “[c]ommon notions of collateral estoppel suggest that the state proceedings similarly would not bind other interested persons who did not participate in them“). The Eleventh Circuit reasoned that Congress granted the Secretary of Labor an independent right to sue and seek redress for ERISA violations because such plans affect the national public interest. Herman, 140 F.3d at 1423. As such, the Secretary‘s action was not barred by the actions of private plaintiffs who sought to redress individual grievances, even when the Secretary‘s action also sought to recoup plan losses. Id.; see Wilmington Shipping Co. v. New Eng. Life Ins., 496 F.3d 326, 340 (4th Cir.2007) (agreeing with “a number of our sister circuits [that] have held that, in light of the overarching national interest in ensuring the financial stability of pension plans and the inability of private plaintiffs to adequately represent this interest, the Secretary of Labor is not bound by the results reached by private litigants in ERISA suits“). We agree that a CAFA class action settlement, though approved by the district court, does not act as res judicata against the State in its sovereign capacity, even though many
For example, California Business and Professions Code
The cases relied upon by IntelliGender for its contrary arguments actually undercut its position. In Leon v. IDX Systems. Corp., for example, we found privity and enjoined the Department of Labor‘s (“DOL“) action against a company because “[w]hen the Secretary of Labor is suing for employee-specific rights of precisely the sort plaintiff has already pursued then the requisite closeness of the interests for privity is present.” Leon, 464 F.3d at 962 (alterations omitted) (citation omitted). Leon had sued his employer after being placed on unpaid leave, alleging violations of the anti-retaliation provision of the False Claims Act, Title VII, the Americans with Disabilities Act, and state laws. Id. at 955. He also filed a complaint with the DOL. Id. After the district court dismissed all of Leon‘s claims with prejudice because he had “despoiled evidence,” his employer moved the district court to enjoin, on res judicata grounds, the DOL‘s action as well. Id. The district court denied the motion to enjoin, and we reversed, reasoning that the district court had erred in not finding privity between Leon and the DOL. Id. at 961-62. Because the DOL‘s action arose under the whistleblower-protection provision of the Sarbanes-Oxley Act, the only remedies available were “individual compensatory remedies.” Id. at 962. On that basis, we concluded that “the private nature of the remedy sought by the DOL demonstrates that the agency is in privity with Leon.” Id. at 963. Similarly, in Chao v. A-One Medical Services, Inc., 346 F.3d 908, 923 (9th Cir.2003), we affirmed the grant of injunctive relief because the Secretary of Labor was not trying to “vindicate broader governmental interests by, for example, seeking an injunction,” but was instead trying to recoup plaintiff‘s personal economic loss.
Finally, IntelliGender‘s argument that the State‘s enforcement action should be enjoined because of its failure to object to the proposed settlement after receiving CAFA‘s required notice is simply incorrect. The three district court cases cited by IntelliGender in support of its position stand for little more than the proposition that the failure to object can be considered in assessing the fairness of a proposed class action settlement—precisely what the CAFA notification requirements were designed to accomplish. The notification requirement, by its own terms, does not “impose any obligations, duties, or responsibilities upon, Federal or State officials.”
Whether the district court erred in denying IntelliGender‘s motion to enjoin the State‘s claims for restitution is an entirely separate question. The same considerations of CAFA‘s purpose and the importance of state enforcement actions once again govern our analysis, but this time lead to a different result: the State‘s action, insofar as it seeks restitution for individual members of the Gram settlement class, may be enjoined under its continuing jurisdiction to enforce and administer the Gram class action settlement. “[I]t goes without saying that the courts can and should preclude double recovery by an individual.” EEOC v. Waffle House, Inc., 534 U.S. 279, 297, 122 S.Ct. 754, 151 L.Ed.2d 755 (2002) (internal quotation marks omitted). To the extent that the State seeks restitution for individual members of the Gram certified class, it may be enjoined from doing so.
When a government entity sues for the same relief that “plaintiff [has] already pursued then the requisite closeness of interests for privity is present.” Leon, 464 F.3d at 962 (emphasis added) (citation omitted); see also Chao, 346 F.3d at 923 (enjoining an action by the Secretary of Labor because it sought simply to recoup plaintiff‘s personal economic loss rather than “vindicate broader governmental interests by, for example, seeking an injunction“). Sufficient privity exists between Gram class members and the State with respect to claims for restitution. The district court‘s suggestion that privity did not exist8 relied upon two mistaken premises: that the individuals on whose behalf restitution was sought are different from the certified class and that the amounts sought are different. The former is factually incorrect, and the latter has no bearing on the question of privity.
In its order denying the motion to enjoin claims for restitution only, the court relied upon the fact that “the class certified in this case is limited only to those who purchased Defendant‘s product and received an inaccurate result, whereas the People are seeking restitution on behalf of all California purchasers of the product—regardless of the results they received from the product.” This is incorrect. In its approval of the class settlement in Gram, the district court “certifie[d] this Action for settlement purposes as a nationwide class action on the behalf of the following: all individuals who personally purchased a Test between November 1, 2006 and January 31, 2011, in the United States and personally used the Test.” While only those individuals who obtained an incorrect Test result are eligible for compensation under the terms of the settlement, this does not negate the fact that the certified class covered anyone who purchased and used the Test—substantially the same individuals for whom the State now seeks restitution. That compensation was limited to those who obtained an incorrect result is a reflection of the bargaining and compromise inherent in settling disputes. Individual Gram class members who bought a Test and used it but did not obtain an incorrect result remain bound by the settlement, even though they will not receive any compensation. If the State
The district court‘s reliance upon the different amount of restitution sought9 in denying the motion is also misplaced. It is irrelevant for questions of privity and merely confirms that the State is essentially seeking a double (or at least better) recovery. Indeed, even the district court “agree[d]” with the State‘s conclusion that some individuals who received restitution in this case would be ineligible for recovery in the Gram action. Moreover, as our decision in Leon confirms, the appropriate inquiry is not what relief was ultimately granted, but whether the government is suing for the same relief already pursued by the plaintiff. 464 F.3d at 962 (emphasis added). Here, the class pursued restitution, and the government now seeks the same. Because the requirements of res judicata have been met with respect to the claims for restitution, an injunction may issue under the Anti-Injunction Act. See Randtron, 284 F.3d at 974 (“Whether an injunction may issue under the Anti-Injunction Act is a question of law reviewed de novo.“).
“However, the fact that an injunction may issue under the Act does not mean that it must issue.” Quackenbush v. Allstate Ins. Co., 121 F.3d 1372, 1377 (9th Cir.1997). “The decision whether to issue an injunction that does not violate the Act is reviewed for an abuse of discretion.” Id.; see Randtron, 284 F.3d at 974. “A district court abuses its discretion when it rests its conclusions on clearly erroneous factual findings or on incorrect legal standards.” Quackenbush, 121 F.3d at 1377. Although the decision to grant an injunction is discretionary, discretionary decisions of district courts must be “exercised not arbitrarily or willfully, but with regard to what is right and equitable under the circumstances and the law, and directed by the reason and conscience of the judge to a just result.” Langnes v. Green, 282 U.S. 531, 541, 51 S.Ct. 243, 75 L.Ed. 520 (1931).
As discussed, supra, the district court rested its conclusion that an injunction was not warranted on a clearly erroneous factual finding—that the classes were not the same—and a mistaken belief that the amount of restitution sought affects the propriety of issuing an injunction. This alone is enough to conclude that the district court abused its discretion in failing to grant the injunction. These errors are compounded, and our conviction that the district court abused its discretion strengthened, when we examine “what is right and equitable under the circumstances and the law.” Id.
It is axiomatic that final, court-approved settlements preclude class members from seeking the same relief for the same claims a second time. “A fundamental precept of common-law adjudication, embodied in the related doctrines of collateral estoppel and res judicata, is that a right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction . . . cannot be disputed in a subsequent suit between the same parties or their privies. . . .” Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979) (internal quotation marks omitted). Absent such a guarantee, defendants would have
The Court has recognized that “class actions raise special problems of relitigation,” which Congress sought to address in part through passage of CAFA. Bayer, 131 S.Ct. at 2381. Although in Bayer, the Court examined the issue of relitigation of class certification,10 the principles it espoused are applicable to other questions of relitigation. The Court noted that Congress‘s chosen remedy, CAFA, “does not involve departing from the usual rules of preclusion.” Id. at 2382. Rather, CAFA functions to prohibit relitigation by “enabl[ing] defendants to remove to federal court any sizable class action involving minimal diversity of citizenship.” Id. Once removal takes place, the consolidation of multiple overlapping suits allows one legal standard to govern the case. “Congress‘s decision to address the relitigation concerns associated with class actions through the mechanism of removal provides yet another reason for federal courts to adhere in this context to longstanding principles of preclusion.” Id.
Allowing the State‘s claims for restitution to advance would undermine those “longstanding principles of preclusion,” which we and other courts have recognized time and again under the basic rule that when the government seeks individual relief on behalf of an already defeated litigant,, res judicata usually applies. See Wright & Miller, Fed. Prac. & Proc. Juris. § 4458.1 & nn. 26-29 (2d ed.2014) (collecting cases and noting “class-action proceedings may preclude the government from pursuing independent proceedings that seek only to win advantages for the same class“).
In In re American Investors Life Insurance Co. Annuity Marketing and Sales Practices Litigation, No. 05-MD-1712, 2013 WL 3463503 (E.D.Pa. July 10, 2013), the district court confronted a factual situation similar to the one presented here. That court granted the defendant companies’ request for an injunction to prevent the State Attorney General from seeking restitution for individuals under Pennsylvania‘s Consumer Protection Law. The individuals on whose behalf the Attorney General sought restitution were members of a settlement class that had already entered into an agreement with the defendant companies. The court, relying upon Supreme Court and Third Circuit EEOC cases, concluded that allowing the Attorney General to move forward with individual restitution claims would undermine the settlement agreement.11 Id. at *8. The
Our decision does not deprive the State of the ability to protect its citizens—quite the contrary. As explained, supra, the State may seek civil penalties and broad injunctive relief against IntelliGender. In addition, CAFA‘s notification requirement, § 1715, safeguards the State‘s ability to participate, comment, or object during the Rule 23 class action settlement approval process, fulfilling CAFA‘s purpose to “provide a check against inequitable settlements.” Uponor, 716 F.3d at 1064 (quoting the Senate Report on CAFA). Here, IntelliGender provided notice to the appropriate parties, including the Attorney General of the United States and the CAFA coordinator for the Office of the Attorney General of California. Having chosen not to participate, the State is precluded from seeking the same relief sought in the CAFA class action. This is so not because § 1715 imposes any obligation on the State, but by operation of principles of res judicata. Indeed, while § 1715 does not impose any obligations, responsibilities, or duties on the State, § 1715(f) also makes clear that it does not “expand the authority of” the State, for example, by excepting the State from longstanding principles of res judicata.
III.
For the foregoing reasons, we affirm the district court‘s order denying the injunction of the State‘s action writ large, but we reverse the district court‘s order denying the injunction with respect to restitution and enjoin those claims. Each party shall bear its own costs.
AFFIRMED in part; REVERSED in part.