Reverse chronological e-mail alerts prepared pro bono for the California Lawyers Association (formerly State Bar of California) Labor & Employment Law Section, unofficially since 2003 and officially since 2007, covering California, 9th Circuit and US Supreme Court decisions, and new laws signed by Governor. To subscribe, contact LaborLaw@CLA.Legal.
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Parsonage v. Wal-Mart Associates (CA4/1 D083831 2/4/26) Investigative Consumer Reporting Agencies Act | Pre-Employment Background Check
California employers may not obtain an investigative consumer report to aid them in making employment decisions without complying with the Investigative Consumer Reporting Agencies Act (ICRAA). (Civ. Code, § 1786, et seq.) An employer who fails to comply with any of ICRAA’s requirements is liable to the consumer who is the subject of the report for “[a]ny actual damages sustained . . . as a result of the failure or, except in the case of class actions, ten thousand dollars ($10,000), whichever sum is greater.” (§ 1786.50, subd. (a)(1), italics added.) We hold ICRAA, by its plain language, authorizes consumers to recover the statutory sum as a remedy for a violation of their statutory rights, without any further showing of injury. We thus conclude the trial court erred when it required a consumer to demonstrate a concrete injury, such as an adverse employment decision, to establish ICRAA standing and reverse its grant of summary judgment in favor of the employer.
https://www4.courts.ca.gov/opinions/documents/D083831.PDF
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Fuentes v. Empire Nissan (SC S280256 2/2/26) Difficult-to-Read Employment Arbitration Agreement | Substantive and Procedural Unconscionability
To establish that a contract is unenforceable because it is unconscionable, the party opposing enforcement must show unfairness both in the procedure by which the contract was formed and the substance of its terms. Here, we consider how to account for illegibility in this analysis. The trial court relied on Davis v. TWC Dealer Group, Inc. (2019) 41 Cal.App.5th 662, 674 (Davis) to conclude that small, difficult-to-read print supports a finding of substantive unconscionability as well as procedural unconscionability. Disagreeing with Davis, the Court of Appeal held that “tiny and unreadable print” is a problem of procedural unconscionability only and should not be double counted as a problem of substantive unconscionability. (Fuentes v. Empire Nissan, Inc. (2023) 90 Cal.App.5th 919, 930 (Fuentes).) We granted review to resolve this conflict. We hold that a contract’s format generally is irrelevant to the substantive unconscionability analysis, which focuses on the fairness of the contract’s terms, but that courts must closely scrutinize the terms of difficult-to-read contracts for unfairness or one-sidedness. We remand for further consideration in light of our clarification of the law.
https://www4.courts.ca.gov/opinions/documents/S280256.PDF
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Avery v. TEKsystems, Inc. (9th Cir. 24-5810 1/28/26) Arbitration | Class Action Wage-and-Hour
The panel affirmed the district court’s denial of a motion to compel arbitration filed by Defendant TEKsystems, Inc. (“TEK”) in a putative class action brought by Plaintiffs Bo Avery, Jill Unverferth, Kristy Camilleri, and Phoebe Rogers (collectively, “Plaintiffs”).
Over 22 months after the commencement of the litigation, and after briefing on class certification had closed, TEK rolled out a new, mandatory arbitration agreement (the “Arbitration Agreement”) that automatically applied to putative class members unless they quit their jobs or opted out of the Arbitration Agreement. The district court granted Plaintiffs’ motion for class certification, and the class notice period began. Federal Rule of Civil Procedure (“FRCP”) 23 creates an opt-out requirement for class members because it mandates that members of a certified class must be provided with the “best notice that is practicable” and an opportunity to request exclusion during the class notice period. If class members do nothing, they are automatically members of the class. On the other hand, under TEK’s Arbitration Agreement, class members who do nothing automatically opted out of the class. In order to remain in the class, class members had to quit their jobs or affirmatively opt out of the Arbitration Agreement. Thus, the district court found that TEK subverted FRCP 23 by turning FRCP 23’s opt-out class procedures into opt in class procedures. The district court also concluded that TEK’s Arbitration Agreement roll out communications threatened the fairness of the litigation. These communications stated that class actions are “wasteful,” “inefficient,” involve “exorbitant fees,” “tend to enrich only attorneys,” and would “require” TEK “to ignore individual employee issues and concerns”; were sent and required action during the holidays; contained inconsistent statements about how and when to opt out of the Arbitration Agreement; and also implied that putative class members must consult their own attorneys at their own expense rather than class counsel. Thus, the district court denied TEK’s motion to compel arbitration.
Following U.S. Supreme Court precedent giving district courts the duty and broad authority to exercise control over a class action under FRCP 23(d), the panel held that a district court has the authority to decline to enforce a motion to compel arbitration under FRCP 23(d) to ensure the fairness of the class proceedings. The panel noted that its holding is in accord with the Fourth Circuit, Sixth Circuit, and Eleventh Circuit. The panel also held that TEK’s Arbitration Agreement roll out communications were misleading and threatened the fairness of the class action proceedings. Additionally, the panel held that the Arbitration Agreement’s delegation provision did not prevent the district court from determining the enforceability of the Arbitration Agreement. Thus, the panel affirmed the district court’s decision to decline to enforce TEK’s motion to compel arbitration.
https://cdn.ca9.uscourts.gov/datastore/opinions/2026/01/28/24-5810.pdf
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Trustees of the Cal. State Univ. v. Public Emp. Relations Bd. (CA2/3 B340818 1/26/26) PERB | Higher Education Employer-Employee Relations Act
The present action was brought under the Higher Education Employer-Employee Relations Act (HEERA) (Gov. Code, §§ 3560 et seq.), which governs labor relations between public institutions of higher education and their employees. This writ proceeding comes to this court from the Public Employment Relations Board (PERB), an independent administrative agency charged with administering HEERA and other public sector labor laws. PERB has original jurisdiction to decide unfair labor practices charges (§ 3563.2), and review of PERB decisions is by petition for writ of review in the Court of Appeal (§ 3509.5).
The California Faculty Association (CFA) is the bargaining unit that represents professors, lecturers, coaches, counselors, and librarians of the California State University (CSU). In early 2023, CSU adopted an executive order that changed its student vaccination requirements effective in fall 2023. CFA demanded to bargain over the change; CSU responded that it was not required to bargain, but was willing to meet to discuss it. CFA declined the offer to meet and filed an unfair practices charge.
After a hearing, an administrative law judge (ALJ) determined that CSU was required to bargain over reasonably foreseeable effects of the new student vaccination requirements on faculty health, and that CSU violated HEERA by implementing the new requirements without bargaining. On review, PERB largely affirmed the ALJ’s findings, concluding that CSU had a duty to bargain and had implemented the new student vaccine requirements without engaging in bargaining. CSU sought a writ of review from that decision.
As we discuss, PERB did not err by finding that CSU has a duty to bargain over the effects of its revised student vaccine policy. However, there is no substantial evidence in the administrative record that when CFA filed its unfair practice charge, CSU had implemented the revised policy or had definitively refused to bargain. Accordingly, we set aside PERB’s finding that CSU violated HEERA and remand the matter for the parties to engage in effects bargaining.
https://www4.courts.ca.gov/opinions/documents/B340818.PDF
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M & K Employee Solutions, LLC v. Trustees of the IAM Pension Fund (US 23-1209 oral argument 1/20/26) ERISA | Employer Withdrawal Liability from Multiemployer Pension Plan
The Employee Retirement Income Security Act imposes "withdrawal liability"when an employer withdraws from an underfunded multiemployer pension plan. This withdrawal liabilty covers the employer's share of the plan's underfunding. Because a plan's amount of underfunding hinges on projections about its projected liabilities and assets decades into the future, withdrawal liability computations are partly a product of actuarial assumptions about anticipated interest rates and other predictions. Withdrawal liability must be computed "as of the end of the plan year preceding the plan year in
which the employer withdraws." E.g., 29 U.S.C. 1391(b)(2)(E)(i). The question presented is:
Whether 29 U.S.C. 1391's instruction to compute withdrawal liability "as of the end of the plan year" requires the plan to base the computation on the actuarial assumptions to which its actuary subscribed at the end of the year, or allows the plan to use different actuarial assumptions that were adopted after the end of the year.
Transcript
Audio
D.C. Circuit Decision
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Randolph v. Trustees of the Cal. State University (CA3 C102901, filed 12/30/25, pub. 1/16/26) Employment Discrimination | Statutory Deadline
Plaintiff Teresa Randolph sued her prior employer and several others (collectively, defendants) for claims relating to employment discrimination, whistleblower retaliation, and termination of her employment. The trial court granted defendants’ motion to dismiss based on Randolph’s failure to bring the action to trial within the five-and-a-half-year statutory deadline under Code of Civil Procedure section 583.310 and Judicial Council emergency rule 10 (Cal. Rules of Court, appen. I, emergency rule 10). Randolph appeals, asserting the trial court erred because defendants orally stipulated to an extension of the statutory deadline when they did not object to the trial court setting the trial date beyond the deadline. We disagree and affirm.
https://www4.courts.ca.gov/opinions/documents/C102901.PDF
Hu et al. v. XPO Logistics, LLC (CA2/5 B342355 1/16/26) Broker’s Liability to Independent Contractor’s Employees
The employee of a carrier hired by a broker to transport cargo across state lines sued the broker for negligence in not protecting him from harm. California law presumes that a person (here, the broker) who hires an independent contractor (here, the carrier) owes no duty of care to the employees of that independent contractor for the injuries those employees suffer while working for the independent contractor. (Sandoval v. Qualcomm Inc. (2021) 12 Cal.5th 256, 269, 270 (Sandoval).) The trial court granted summary judgment to the broker on this ground. In this appeal, the employee argues that the broker has a nondelegable duty to protect the carrier’s employees and that the broker actually exercised control over the carrier’s transportation of cargo. Because the undisputed evidence indicates that the broker did not perform any duties of a carrier and did not actually exercise any control over the carrier’s transport of the cargo, the trial court correctly determined that there were no triable issues of fact and properly granted summary judgment. We further hold that the test applicable in determining whether a broker is strictly liable for property damage to cargo—which turns on whether the broker holds itself out as a carrier, as set forth in Essex Insurance Company v. Barrett Moving & Storage, Inc. (11th Cir. 2018) 885 F.3d 1292 (Essex)—is irrelevant to the question of liability for personal injury to an independent contractor’s employees under California law. We accordingly affirm the judgment in favor of the broker.
https://www4.courts.ca.gov/opinions/documents/B342355.PDF
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The Merchant of Tennis v. Super. Ct. (CA4/2 E085766 1/14/26) Wage and Hour Class Action | Revocation of Individual Settlement Agreements
In May 2022, real party in interest Jessica Garcia (Garcia) filed a third amended consolidated class action complaint against her former employer, petitioner The Merchant of Tennis, Inc. (Merchant), for failure to pay wages in violation of various provisions of the California Labor Code, and other employment-related violations under federal and state law. In May and June 2024, Merchant entered into approximately 954 individual settlement agreements (ISAs) with employees to give up their wage and hour claims against Merchant in exchange for cash payments. Merchant paid over $875,000 in cash payments to former and current employees.
Garcia moved for class certification in May 2024. She also filed a motion to invalidate the ISAs, insisting they were obtained by Merchant through coercion and fraud. The trial court did not grant the motion to invalidate the ISAs in total but agreed that the ISAs were voidable. It ordered the parties to meet and confer regarding a curative notice to be sent to all putative class members advising that they could revoke their ISAs and join the class action lawsuit. The parties could not agree on the language of the curative notice. A hearing was held on February 28, 2025, at which the trial court ruled on the curative notice to be sent to all putative class members who had signed ISAs. The trial court ruled that the curative notice did not need to include that if the parties chose to revoke their ISAs, they may have to pay back the settlement amount if Merchant prevailed. It did advise the class members that the amount of recovery, should they prevail, may be offset by the settlement payments. The trial court agreed to stay its order on the curative notice until March 31, 2025, in order for Merchant to seek review.
Merchant filed a petition for writ of mandate (Petition) asking this court to issue a peremptory writ of mandate directing the trial court to vacate its February 28, 2025, ruling; that the trial court be instructed to comply with California’s rescission statutes, Civil Code sections 1689 and 1691, as part of the curative notice; that the trial court be instructed the curative notice must inform putative class members that if they revoke their ISAs to join the class action lawsuit, they are required to immediately return the settlement payment. Merchant requested a further stay of the trial court’s order until the issue has been resolved by this Court, which we granted. We then issued an order to show cause why relief should not be granted.
https://www4.courts.ca.gov/opinions/documents/E085766.PDF
Carroll v. City and County of S.F. (CA1/4 A169408M, filed 12/5/25 mod. & review den. 1/14/26) FEHA Age Discrimination | Municipal Disability Retirement
THE COURT:
It is ordered that the opinion filed herein on November 12, 2025, be modified as follows:
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On page 12, the first sentence under the subheading “Standard of Review” starting, “Plaintiffs state at times in their briefing that the trial court erred in its rulings at summary judgment and after the bench trial on their substantive FEHA claims, but their challenges in this appeal . . . .” is replaced with:
Plaintiffs state at times in their briefing that the trial court erred in its rulings at summary judgment and after the bench trial on their substantive FEHA claims, but the substantive challenges as briefed in this appeal are to the trial court’s ruling after the bench trial.
There is no change in judgment.
The petition for rehearing is denied.
https://www4.courts.ca.gov/opinions/documents/A169408M.PDF
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Tuufuli v. West Coast Dental Admin. Services (CA2/8 B338584 1/13/26) Arbitration
Plaintiff Sinedou S. Tuufuli appeals from the trial court’s order granting defendant West Coast Dental Administrative Services, LLC’s (West Coast Dental) motion to compel arbitration of Tuufuli’s individual claims and to dismiss Tuufuli’s class claims. The only issue Tuufuli raises on appeal is whether the court correctly found the parties’ arbitration agreement is governed by the Federal Arbitration Act (FAA) (9 U.S.C. § 1 et seq.). As we explain, the court correctly found the FAA governs the parties’ arbitration agreement because they agreed to be bound by the act. We therefore affirm the order granting West Coast Dental’s motion to compel arbitration of Tuufuli’s individual claims and to dismiss her class claims.
https://www4.courts.ca.gov/opinions/documents/B338584.PDF
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Spilman v. The Salvation Army (CA1/5 A169279 1/6/26) Non-Profit Volunteer | Wage and Hour
Plaintiffs Justin Spilman, Teresa Chase, and Jacob Tyler (collectively “Spilman”) worked full time for the Salvation Army, a nonprofit organization, in various operations that supported its retail thrift stores. Spilman worked without wages as part of a six-month, residential, substance abuse rehabilitation program. He now alleges that, under California law, the Salvation Army was required to pay him the minimum wage and overtime. The trial court determined that the wage laws do not apply because Spilman was a volunteer, not an employee, and it granted summary judgment to the Salvation Army. We agree that a volunteer for a nonprofit organization can fall outside the wage laws, but we conclude the trial court applied the wrong standard to distinguish a volunteer from an employee. We reverse and remand the case for further proceedings.
https://www4.courts.ca.gov/opinions/documents/A169279.PDF
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Union Gospel Mission of Yakima v. Brown (9th Cir. 24-7246 1/6/26) Washington Anti-Discrimination Law | Hiring Preference for Co-Religionists for Non-Ministerial Roles
The panel affirmed the district court’s preliminary injunction prohibiting the enforcement of the Washington Law Against Discrimination (“WLAD”) against the Union Gospel Mission of Yakima, Washington —a Christian ministry—for preferring and hiring co-religionists for nonministerial roles.
WLAD prohibits employment discrimination based on several protected grounds, including sexual orientation. Because of its religious purpose, Union Gospel requires its employees to agree with and live out its Christian beliefs and practices, including “abstaining from any sexual conduct outside of biblical marriage between one man and one woman.” Union Gospel brought this pre-enforcement action against the Washington State Attorney General and the Washington State Human Rights Commission, alleging violations of the First Amendment and requesting an injunction prohibiting defendants from enforcing WLAD against it.
The panel held that Union Gospel is likely to succeed on the merits of its claim that enforcing WLAD against it for hiring only co-religionists violates the church autonomy doctrine, as established by the First Amendment’s Religion Clauses. The church autonomy doctrine encompasses more than just the ministerial exception. It forbids interference with “an internal church decision that affects the faith and mission of the church itself.” In this case, Union Gospel’s co-religionist hiring policy constitutes an internal management decision that is essential to the institution’s central mission. It is uncontested that (1) Union Gospel is a religious institution, (2) Union Gospel has a sincerely held religious belief that only co-religionists may advance its religious mission, and (3) Union Gospel’s co-religionist hiring policy is based on that religious belief.
Under the church autonomy doctrine, Union Gospel may decline to hire as non-ministerial employees those who do not share its religious beliefs about marriage and sexuality. But unlike the ministerial exception, the church autonomy doctrine protects only Union Gospel’s nonministerial hiring decisions based on religious beliefs. Union Gospel cannot discriminate on any other ground. The panel emphasized that its decision was limited to religious organizations like Union Gospel and that it did not consider the scope of the doctrine on other types of entities run by religious institutions, such as businesses or hospitals.
The panel held that the remaining preliminary injunction factors—irreparable harm, the public interest and balance of the equities—favored Union Gospel.
https://cdn.ca9.uscourts.gov/datastore/opinions/2026/01/06/24-7246.pdf
NV Resort Ass’n-Int’l All. V. JB Viva Vegas (9th Cir. 24-2791 & 24-3047 1/6/26) Multiemployer Pension Plan Amendments Act
The panel reversed the district court’s grant of summary judgment in favor of the Nevada Resort Association-International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada Local 720 Pension Trust, and remanded, in an action brought by JB Viva Vegas, L.P., to challenge withdrawal liability under the Multiemployer Pension Plan Amendments Act.
The MPPAA amended the Employee Retirement Income Security Act to impose liability on employers, like JB, that withdraw from multiemployer pension plans, such as the plan administered by the Trust. But an exemption from withdrawal liability exists for employers contributing to plans that primarily cover “employees in the entertainment industry.” The panel held that, under the plain text of the statute, there is no minimum amount of entertainment work required for an individual to be an employee in the entertainment industry under the MPPAA. And even if the text were ambiguous, the best reading of the exception is that “employees in the entertainment industry” are individuals performing any amount of entertainment work. Accordingly, the panel held that the Trust’s plan primarily covered “employees in the entertainment industry” because there is no minimum entertainment-work requirement, and the majority of employees covered by the plan perform some entertainment work.
https://cdn.ca9.uscourts.gov/datastore/opinions/2026/01/06/24-3047.pdf
Sierra Pacific Industries Wage and Hour Cases (CA3 C099436M, filed 12/9/25, mod. & rehrng. denied 1/6/26) Arbitration
THE COURT:
It is ordered that the published opinion filed herein on December 9, 2025, be modified as follows:
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At page 6, in the first full paragraph, modify the third sentence that reads, “On January 31, 2022, the trial court entered an order imposing monetary sanctions of $4,210 against Sierra Pacific for knowingly violating the February 2020 order by failing to provide Belaire-West notices to all non-exempt employees at the Red Bluff facilities” to omit the word “knowingly” so that the sentence reads:
On January 31, 2022, the trial court entered an order imposing monetary sanctions of $4,210 against Sierra Pacific for violating the February 2020 order by failing to provide Belaire-West notices to all non-exempt employees at the Red Bluff facilities.
There is no change in the judgment. The petition for rehearing is denied.
https://www4.courts.ca.gov/opinions/documents/C099436M.PDF
Walker Specialty Constr., Inc. v. Board of Trustees (9th Cir. 24-1560 1/5/26) Multiemployer Pension Plan Amendments Act
The panel affirmed the district court’s grant of summary judgment in favor of Walker Specialty Construction, Inc., in Walker’s action against the Board of Trustees of the Construction Industry and Laborers Joint Pension Trust, contesting withdrawal liability under the Multiemployer Pension Plan Amendments Act, an amendment to the Employee Retirement Income Security Act that imposes liability on employers that withdraw from multiemployer pension plans.
The panel held that Walker was exempt from withdrawal liability under the MPPAA because its asbestos abatement work qualified it for the “building and construction industry” exception to liability. The panel concluded that, as the agency tasked with enforcing the Labor Management Relations Act, the only other statute in which Congress had previously used the term “building and construction industry,” the National Labor Relations Board established a settled meaning for the term to include not only the erection of new buildings, but also maintenance, repair, and alterations that are essential to a building or structure’s usability. The panel inferred that Congress’s intent to incorporate the NLRB’s definition into the MPPA was plain from its use of the same language in both statutes. The panel concluded that, under the NLRB’s comprehensive definition, Walker’s asbestos abatement work was within the building and construction industry, and it therefore qualified for the liability exemption.
https://cdn.ca9.uscourts.gov/datastore/opinions/2026/01/05/24-1560.pdf
American Fed’n of Gov’t Employees v. Trump (9th Cir. 25-3293 and 25-4476 1/5/26) Federal Reductions in Force
In a case in which the American Federation of Government Employees, AFL–CIO and others challenge President Trump’s Executive Order 14210 directing federal agencies to commence large-scale reductions in force (“RIFs”), the panel denied a petition for panel rehearing or en banc rehearing of the panel’s decision (1) denying the government parties’ petition for a writ of mandamus challenging the district court’s discovery order requiring in camera production of the Agency RIF and Reorganization Plans of all named agency defendants, (2) vacating the district court’s preliminary injunction, and (3) remanding to the district court.
Respecting the denial of rehearing en banc, Judge W. Fletcher and Judge Rawlinson responded to the dissent from the denial of rehearing en banc. First, although the Supreme Court had stayed the district court’s preliminary injunction in an earlier iteration of this case, the Court specifically left open the legality of the documents at issue. Second, the panel assumed that the privilege for predecisional deliberative documents applied to the Agency RIF and Reorganization Plans in question but agreed with the district court’s conclusion that the privilege was overridden in the circumstances of this case. Third, the panel carefully considered the well-established four-factor test set forth in FTC v. Warner Commc’ns Inc., 742 F.2d 1156 (9th Cir. 1984), in determining that the deliberative process privilege was overcome and that mandamus was not warranted. Fourth, the strong showing of a bad faith required for discovery of documents outside the administrative record was irrelevant because in this case there was no administrative record. Finally, the dissent fails to adequately account for the exceptional standard for granting mandamus.
Dissenting from the denial of rehearing en banc, Judge Bumatay, joined by Judges Callahan, R. Nelson, VanDyke and Tung, wrote that, in denying the mandamus petition, the panel made three errors that needed correction by our en banc court. First, the panel majority flirted with the idea that the government’s internal RIF Plans were not even deliberative—a truly extreme position. It wrongly suggested that the government’s internal RIF Plans are not predecisional, deliberative materials. Second, and more importantly, the panel majority severely weakened the deliberative process privilege—a doctrine with deep common-law roots that protects the separation of powers. It failed to adequately address the separation-of-powers concerns in ordering the discovery of intra-executive branch documents. Third, the panel majority created a blueprint for making an end-run around the Administrative Procedure Act’s normal discovery rules. It mangled the law for ordering extra-record discovery and so expanded it to circumvent any limits on the production of internal government documents.
https://cdn.ca9.uscourts.gov/datastore/opinions/2026/01/05/25-3293.pdf
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Thompson v. CVSD No. 365 (9th Cir. 24-5263 12/29/25) Retaliation | First Amendment
The panel affirmed the district court’s summary judgment for the Central Valley School District (“CVSD”) and individual school administrators in a suit brought by Randy Thompson, a former middle school assistant principal, alleging retaliation in violation of the First Amendment.
Thompson was placed on paid administrative leave and subsequently transferred to a teaching position as a result of his posting on Facebook a comment about the Democratic National Convention that used epithets, slurs, and violent language.
Applying the two-step Pickering framework, the panel affirmed the district court’s conclusion that Thompson made out a prima facie First Amendment retaliation claim for private speech he made on a matter of public concern. The panel assumed, without deciding, that a reasonable jury could conclude that placing Thompson on paid administrative leave could constitute an adverse employment action and that the record supported a finding that the Facebook post was a substantial or motivating factor in that decision. However, CVSD sufficiently showed a reasonable prediction of disruption under Pickering Step Two. CVSD’s interest in creating a safe and inclusive school environment outweighed the public interest commentary contained in Thompson’s speech.
Because Thompson’s First Amendment rights were not violated, the panel affirmed the district court’s finding of qualified immunity in favor of the individual school officials.
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/12/29/24-5263.pdf
Khatibi v. Hawkins (9th Cir. 24-3108 12/29/25) First Amendment | Government Speech
The panel denied a petition for panel rehearing and rehearing en banc of the panel’s decision affirming the district court’s dismissal of an action, brought by a physician instructor of continuing medical education (CME) courses and a nonprofit comprised of healthcare professionals and policymakers, alleging that the Medical Board of California’s requirement that CME courses eligible for credit include information about implicit bias violates the Free Speech Clause of the First Amendment.
Dissenting from the denial of rehearing en banc, Judge VanDyke, joined by Judges Bumatay and Tung, wrote that the panel erred in concluding that CME courses are government speech devoid of any First Amendment protection because (1) California has not historically used CME courses to communicate the state’s own messages, (2) those attending CME courses would be unlikely to perceive the instructor’s message as the government’s message, and (3) the state’s regulations otherwise exert very little control over CME instructors’ messages. The panel’s decision puts this circuit out of step with the precedent of the Supreme Court and sister circuits, and even this circuit’s precedent.
Dissenting from the denial of rehearing en banc, Judge Tung, joined by Judges Bumatay and VanDyke, wrote that private instructors of continuing medical education courses do not engage in “government speech,” for the simple reason that they are not the government and they do not speak for the government. A law requiring them to convey a viewpoint they find objectionable thus restricts their private expression and is not exempt from First Amendment scrutiny.
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/12/29/24-3108.pdf
Employees at Clark County Gov’t Ctr., v. Monsanto, Co. (9th Cir. 25-6625 12/29/25) CAFA
The panel reversed the district court’s order remanding to state court an action brought by a class of individual plaintiffs who alleged they were injured while working at the Clark County Government Center because they were exposed to toxic waste dumped at the site.
Plaintiffs originally brought this case in Nevada state court alleging that some of the waste dumped at the site contained polychlorinated biphenyls (PCBs), and that the former Monsanto Company (Old Monsanto) manufactured more than 99 percent of all PCBs sold in the United States. Old Monsanto’s corporate successors—Pharmacia LLC, Solutia Inc., and Monsanto Co—removed this case to federal court under the Class Action Fairness Act (“CAFA”). The district court granted plaintiffs’ motion to remand this case to state court, holding that this case falls within CAFA’s “local controversy exception.”
The panel held that CAFA’s local controversy exception does not apply because plaintiffs cannot satisfy the “principal injuries” element of the exception, which directs the federal court to decline to exercise jurisdiction if, among other requirements, the “principal injuries resulting from the alleged conduct or any related conduct of each defendant were incurred in the State in which the action was originally filed.” 28 U.S.C. § 1332(d)(4)(A)(i)(III). Here, the principal injuries of Old Monsanto’s alleged conduct were not incurred in Nevada. Plaintiffs made no allegations suggesting that the injuries from PCBs in Nevada were more significant than those in other States. Accordingly, the panel reversed the district court’s order remanding the case to state court.
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/12/29/25-6625.pdf​