News

309, 2019

What’s My New SBA Size Standard?

September 3rd, 2019|

Written by Carissa Siebeneck Anderson

The U.S. Small Business Administration (SBA) has been busy.  SBA has released several rules lately, and more are coming.  If you were hoping that SBA would increase the size standards for your receipt-based NAICS code, you are in luck.  If you were close to sizing-out and you were hoping for an immediate increase of the higher size standard, then it really is your lucky day.

On July 18, 2019, SBA issued an interim final rule to raise its monetary size standards to adjust for inflation.  This rule (including many new size standards) went into effect on August 19, 2019.  Please note that SBA is also still accepting comments on this rule.  The comment deadline is September 16, 2019, and comments can be submitted online at https://www.regulations.gov/docket?D=SBA-2019-0008.

Why is SBA adjusting is size standards? In order to fulfill both statutory and regulatory requirements to periodically review its size standards for inflation, SBA completed the review and has decided to adjust its monetary-based industry size standards (but not those based on employee numbers) for the inflation that has occurred since the last inflation adjustment, which was published in June 2014.

As result, adjustments were made to 518 industries and 9 subindustries that use receipts-based standards as well as 5 industries that use assets-based size standards.  SBA also took this opportunity to adjust two program-specific receipts-based size standards for sales/leases of government property and stockpile purchases.  SBA issued this inflation adjustment as an interim final rule, so that small businesses will get the benefit of the higher size standards as soon as possible, even though SBA plans to review (and potentially adjust) its size standards again in the near future based on its 5-year review of industry and Federal market conditions.

How much is the inflation adjustment?  SBA found inflation of 8.37% for all receipts-based size standards (except the agricultural standard discussed below), so SBA adjusted those standards by multiplying the current size standards by 1.0837; SBA then rounded the result to the nearest $500,000.  SBA found a 40.26% inflation adjustment was warranted for the $750,000 agricultural size standard, so SBA multiplied those 46 agricultural industries with a size standard of $750,000 by 1.4026 and rounded to the nearest $500,000, resulting in a new standard of $1,000,000 for all 46 agricultural industries.

Below is a re-creation of Table 1 from the Interim Final Rule.  It demonstrates the specific impact of the inflation adjustment on size standards of varying levels.  The third column shows the newly adjusted size standards, including SBA’s adjustments made for rounding.

The Rule at a Glance information below includes a link to the rule, which includes a full copy of the affected size standards.  If you have any questions about this rule, how to calculate your business’s size, or how this rule may impact your business, please contact Carissa Siebeneck Anderson or Jon DeVore.

Rule at a Glance

Citation: Small Business Size Standards: Adjustment of Monetary-Based Size Standards for Inflation, 84 Fed. Reg. 34261 (July 18, 2019).
RIN: 3245-AH17
Docket ID: SBA-2019-0008
Effective Date: August 19, 2019
Comment Deadline: September 16, 2019
Link to Rule: https://www.federalregister.gov/documents/2019/07/18/2019-14980/small-business-size-standards-adjustment-of-monetary-based-size-standards-for-inflation#

2908, 2019

Countdown: Top Ten Actions to Take When a Lawsuit has been Filed Against You

August 29th, 2019|

Written By David Karl Gross

The civil court system acts as a mechanism to resolve disputes.  Because of the prevalence of conflicts in the United States, most people will be on the receiving end of a lawsuit at least once in their lives.  The most common types of lawsuits are complaints arising out of car accidents, slip and fall lawsuits, the commencement of divorce proceedings, product liability cases, and disagreements over the provisions of a contract.  No matter what the reason for the lawsuit, there are a number of things that you should consider.  Here are top ten things to do when a lawsuit has been filed against you.

(1)  Do not ignore it.  Once, when my daughter was driving from Denver to Seattle, her “engine light” came on.  Instead of seeking out the assistance of a mechanic, she took a piece of electrical tape and covered up the flashing light.   “Out of sight, out of mind.”  Needless to say, that strategy didn’t work out, as her car conked out in the middle of the Great Salt Lake.  This same strategy is also ineffective when dealing with lawsuits.  When someone receives a complaint, there is a natural tendency to want to ignore it.  The thought is that if you ignore it, the problem will go away.  However, just like my daughter’s engine light, that is not the case.  If a complaint is not answered within the timeframe required by the law or civil rules, the party bringing the lawsuit can obtain a default judgment, which basically declares them the prevailing party due to the defendant’s lack of participation.  In other words, the plaintiff will be declared the winner by virtue of the defendant’s failure to answer the complaint.  While there will be some rare situations where a default judgment makes sense, in general, having a default judgment entered against you results in a negative outcome.  Therefore, if you receive a complaint, it is important not to ignore it, but to deal with it head on.

(2)  Stay cool.  While no one ever wants to get sued, and while it is only natural to feel a sense of anger that you are being hauled into court, it is important to stay cool and not to let your emotions dictate your response.  More and more, lawsuits are simply a part of doing business and a reality of our complicated society.  The best approach to a lawsuit is to view it as an opportunity to tell your side of the story and to refute what the other side is claiming.  The more you can approach the lawsuit with a detached point of view, the better off you will be.

(3)  Do not discuss the lawsuit with others.  In just about every cop show there is that moment when a police officer reads the accused their Miranda rights, which starts with, “you have the right to remain silent.”  While a lawsuit is a civil matter and not a criminal case, this warning applies with equal vigor.  When a lawsuit has been filed against you, it is always best not to make any public comments about the matter, as anything you say “can and will be used against you.”  This is especially true when it comes to texting or social media.  You do not want your posts to come back to haunt you, so it is always best not to say anything at all.

(4)  Figure out the deadlines – because deadlines matter.  Depending on what court you are in and what rules apply, there will be different deadlines for filing an answer to the complaint.  It will be important for you to figure out when the answer is due.  By understanding the deadlines involved, you will have a better understanding of the urgency the matter.

(5)  Preserve the evidence.  One of the lessons routinely revisited by celebrity and political scandals is that it is often the attempt to cover something up that gets you in trouble, as opposed to the original event.  After a lawsuit is filed, one of the first things that happens is “discovery,” which is the process of each side disclosing the relevant evidence.  If evidence goes missing, the court can enter a number of sanctions against the party that destroyed it.  The sanctions can range from a monetary fine to a finding that the party that destroyed evidence is liable.  The court can also instruct the jury that when evidence is destroyed, there is a presumption that the evidence would have been detrimental to their case.  In extreme cases, a party can actually be held independently liable for the tort of “spoliation of evidence,” which allows for the award of damages against a party that destroyed evidence.  With all of this, the court system is well equipped to punish a party that either does not preserve evidence or intentionally destroys evidence.  Either way, it is almost always better to just preserve the evidence.

(6)  Look for available liability insurance.  Most people and businesses have insurance that will cover a wide spectrum of liabilities.  For example, in most states, it is mandatory that all drivers purchase automobile liability insurance.  When a car accident occurs, the insurer will hire a lawyer for the responsible driver and pay up to a certain amount (policy limit) to resolve the claim.  Most businesses have what is called commercial general liability insurance, which will provide coverage for a number of liabilities, including when a person suffers an injury while on the property belonging to the business.  Other insurance policies include directors and officer’s coverage, cyber-risk insurance, and professional liability insurance, also known as errors and omissions.  The language in each policy will dictate what the insurer will and will not agree to cover, but there is always a chance that you will be covered. Therefore, even if you doubt there is insurance coverage available, it is always a good idea to investigate the issue, particularly as you may have an obligation to notify the insurance company within a specific time frame.

(7)  Evaluate whether bankruptcy might be an appropriate option. While many tend to shy away from filing for bankruptcy, there are certainly situations when filing for bankruptcy protection makes the most sense.  This would include a situation where a business just needs a “time out” from creditors in order to allow the company to reorganize.  If a party is going to consider this option, it is best to make this decision at the beginning of a case.  Again, bankruptcy is a tool that is available to businesses and individuals and should be considered when a lawsuit has been filed.

(8)  Review any related agreements or documents for an arbitration clause.  Since the 1990s, more and more contracts have arbitration clauses.  These provisions require that any dispute be resolved not in a court, but before a neutral arbitrator.  The idea behind an arbitration clause is that an arbitration is far less costly than a court proceeding and a resolution can be accomplished in a matter of months, as opposed to years.  If there is an arbitration clause that applies, it is important to recognize this on the front end of a case, as there are some court decisions that state that if a person does not promptly demand arbitration, but instead, allows the court proceeding to carry on for a period of time, the arbitration clause is waived, meaning that the dispute cannot be arbitrated because of the delay.  With this in mind, it is important to identify the existence of an arbitration clause and demand that the dispute be arbitrated promptly.

(9)  Try to avoid litigation.  One of the things that everyone can agree upon is that litigation is enormously expensive.  It is not unprecedented for it to cost in excess of a $1 million to take a case to trial, especially if the trial requires expert testimony.  Therefore, both sides will often benefit from an early settlement.  In a situation where both sides are well aware of the applicable facts, it is often best to settle even before a lawsuit is answered.  Therefore, when a lawsuit is received, consider whether it is possible to settle, including whether the parties would be willing to engage a mediator to assist the parties in coming to a resolution.  By doing so, the parties can save time and energy, as well as the cash that will be needed to litigate the matter.

(10)  Contact a lawyer.  In many respects, this should be number one on this list.  No matter what the situation, it is always a good idea to get the advice and recommendations of a person experienced in defending lawsuits.  A lawyer will be able to help you navigate the maze of the legal system and provide you with insight that is critical when defending a lawsuit.

If you ever find yourself facing a lawsuit, keep these ten items in mind.  Of course, if you want to consult with a lawyer to determine if you would benefit from the services of a lawyer, the dedicated and experienced lawyers at Birch Horton Bittner & Cherot are ready and willing to assist. If we are unable to assist you, we will be able to point you in the direction of someone who can.

208, 2019

REGISTERING A TRADEMARK — IS IT OFFENSIVE OR A FIRST AMENDMENT RIGHT?

August 2nd, 2019|

Written By David Karl Gross

A trademark registered with the National Trademark Registry can be an effective way to protect a unique and clever name, slogan, or logo. The Registry, an agency of the federal government, is guided by the Lanham Act, which establishes the rules and regulations for protecting the owner of a federally-registered mark.  Once a trademark is issued, no other person can use that same mark and it will grant the holder of the trademark the ability to file a trademark infringement action.

Under the Lanham Act, there are a number of restrictions on what can and cannot be a trademark.  For example, a mark cannot contain a flag or insignia of any nation and it cannot be merely a description of goods.  Nor is a mark that consists of an “immoral or scandalous matter” permitted.  In determining whether a mark is “immoral or scandalous,” the Registry considers whether the general public would see the mark as being “disgraceful, offensive, disreputable, or vulgar.”  Recently rejected applications for trademarks have included, “YOU CAN’T SPELL HEALTHCARE WITHOUT THC” and “MARIJUANA COLA,” because the Registry concluded that such marks would be offensive, as they promote drug use.  Conversely, marks with an anti-drug stance, including “D.A.R.E. TO RESIST DRUGS” and “SAY NO TO DRUGS,” have been approved.

The subjective nature of such determinations, which appear to have evolved with changing societal norms, is that it can be in conflict with Constitutional protections afforded to free speech under the First Amendment.   The United States Supreme Court recently took up this issue in Iancu v. Brunetti.  In that case, Erik Brunetti, an artist and entrepreneur, applied for a trademark for the following mark: “FUCT,” which was the name of his clothing line.  The Registry denied his request for a trademark on the basis that “FUCT” was “totally vulgar” and had “decidedly negative sexual connotations.”  Brunetti challenged the constitutionality of the government’s denial of his trademark on the basis that such a decision violated his right to free speech under the First Amendment.

Finding in favor of Brunetti, and holding that the Lanham Act’s prohibition against the registration of “immoral or scandalous” trademarks infringed the First Amendment, the Court reaffirmed the general notion that the government cannot discriminate based on the content of ideas or opinions.  In reaching this 6-3 decision, a number of the Justices recognized that this decision could result in the registration of trademarks that many would deem patently offensive, including racial epithets and sexually explicit terms.  Justice Alito, however, reiterated the importance of the First Amendment stating, “it is especially important for this Court to remain firm on the principle that the First Amendment does not tolerate viewpoint discrimination.”

Cases reviewing the First Amendment which repeatedly recognize the protection of “ideas that offend,” acknowledge that it is a cornerstone tenant of our democracy.  However, as the Court signaled in its decision that some restrictive legislation regarding the prohibition of obscene or lewd trademarks could be permissible and survive a constitutional review, it is likely that the debate will continue.

307, 2019

A Scuffle at Arctic Man Shapes the Law of the Land

July 3rd, 2019|

Written by David Karl Gross

As most Alaskans have come to know, Arctic Man is an extreme race involving a skier and a snowmobile.  It is a uniquely Alaskan race that combines extreme conditions with the beautiful Alaska landscape. At the beginning of the race, the skier starts at the top of a mountain which drops 1,700 feet in less than two miles to the bottom of a narrow canyon. When the skier reaches the bottom, he joins up with his snowmobiling partner by grabbing a tow rope. Over the next two miles, the snowmobile pulls the skier uphill at speeds reaching up to 85 miles per hour.  Just before reaching the top, the skier drops the tow line and goes over the side of a second mountain, dropping another 1,200 feet to the finish line.  Typically, there are more than 10,000 spectators from around the world watching the race. 

During the 2014 Arctic Man, a scuffle broke out that has resulted in a change to the constitutional law of the land.  Here’s what happened:  Russell Bartlett was attending the 2014 Arctic Man as a spectator.  Late on the last day of the competition, after what was likely a long day of drinking, Mr. Bartlett got into a confrontation with a police officer, Sergeant Luis Nieves.  Mr. Bartlett claims that Sgt. Nieves became angry because Mr. Bartlett refused to speak to the officer and refused to answer his questions.  Later, Mr. Bartlett ran into another officer, Trooper Bryce Weight, who was interrogating some minors he suspected of drinking.  Mr. Bartlett intervened, telling the trooper he should not be talking to minors without their parents’ consent.  Because Mr. Bartlett positioned himself too close to Trooper Weight, and was allegedly being belligerent, the trooper pushed Mr. Bartlett away.  Sgt. Nieves saw this encounter and proceeded to arrest Mr. Bartlett for disorderly conduct.  During the arrest, Mr. Bartlett was slow to comply, so he was also charged with resisting arrest.  After the arrest, Sgt. Nieves is alleged to have said, “I bet you wish you would have talked to me now,” referring to the earlier incident where Mr. Bartlett refused to speak to him.

Eventually, the charges against Mr. Bartlett were dropped.  Thereafter, Mr. Bartlett filed a civil lawsuit claiming that the police officers had violated his First Amendment right to free speech.  He alleged that his protected speech was his refusal to speak with Sgt. Nieves earlier on the day of his arrest.  He contended that Sgt. Nieves arrested him in order to punish him for exercising his right not to speak.  The U.S. District Court for the District of Alaska dismissed the case on the basis that a claim for a constitutional deprivation of free speech arising out of an arrest cannot stand where there is probable cause for the arrest.  In other words, the court concluded that where a police officer has a reasonable basis to make an arrest, he cannot be held liable for depriving the person arrested of his or her constitutional right to free speech, even if there was a causal connection between the arrest and an attempt to stifle speech.  Because there was probable cause for Mr. Bartlett’s arrest, his constitutional claim was dismissed.

The case was appealed to the Ninth Circuit Court of Appeals, where the court disagreed with the lower court’s ruling.  The Ninth Circuit concluded that just because there is probable cause to make an arrest does not mean that the individual arrested cannot bring a claim for depriving a citizen of their constitutional right to free speech.  The case was appealed to the United States Supreme Court, who agreed to hear the case.

On May 28, 2019, the Supreme Court reversed the decision of the Ninth Circuit.  In so doing, the Court created a new standard for determining the viability of a constitutional claim based on the assertion that an arrest took place to stifle free speech.  In reaching its opinion, Justice Roberts, writing for the majority, reiterated the longstanding rule that in order for a plaintiff to succeed with such a claim, they must prove the absence of probable cause for arrest.  In other words, in order to prevail, a plaintiff will need to prove that the officer had no reasonable basis to make an arrest.  Justice Roberts then carved out an exception to this rule.  He concluded that if the plaintiff can present objective evidence showing that similarly-situated people would not have been arrested, the claim can proceed to trial, even if there was probable cause to arrest.

Justice Roberts provided an example to illustrate the application of this newly-created exception to the rule.  He described a situation where a person was engaged in protected speech when a police officer arrested that person, arguably in an effort to stifle the person’s speech.  If the basis for the arrest was that the person had jaywalked, and if it can be shown that no one else is ever arrested for jaywalking in that area, the constitutional claim can proceed, even if there was probable cause supporting the arrest.  Justice Roberts appeared to create this exception to avoid a situation where a police officer can manufacturer an arrest for the purpose of preventing speech.

Several of the other justices were not pleased with this exception to the general rule.  First, Justice Clarence Thomas argued that no such exception existed in the common law.  Specifically, he pointed out that claims for false imprisonment, malicious arrest, and malicious prosecution did not have the newly-created exception, but instead required a showing that no probable cause existed.  He went on to point out that the statutory cause of action for a deprivation of constitutional rights, as set forth in 42 U.S.C. § 1983, is supposed to be guided by the common law, yet the common law never envisions the newly-created exception.

In addition, Justice Sonia Sotomayor pointed out a practical problem with the new exception.  She provided examples illustrating how difficult it would be to prove that a similarly-situated person would not have been arrested, had they not been exercising their free speech, such as a police officer arresting a person who was recording police conduct on their iPhone, which is protected speech, because they had stepped onto the corner of the private property where the arrest was taking place. Justice Sotomayor queried how that person could prove that a similarly-situated person not recording would not have been arrested. She warned the lower courts to be careful in the manner they implement this exception because of her fear that the newly-created standard makes a constitutional claim far too difficult to prove.

With this, the law of the land has now been changed.  It is not clear whether this change in the law will be good or bad, or whether it will encourage or discourage illegal arrests, but Mr. Bartlett and Arctic Man can take some credit for creating this new law.  However, while Arctic Man can now claim to have altered this country’s constitutional law, it is unclear whether this notoriety makes Alaska or Arctic Man look great.  The decision of the court seems to portray the race in a very negative light.  Justice Roberts, in his written decision, describes the race as being known for not just extreme racing, but also “extreme alcohol consumption.”  He also calls the small town of Paxson, Alaska, which hosts many of the spectators and participants, as “one of the largest and most raucous cities in Alaska.”  The description of Mr. Bartlett’s conduct did not help, as his apparent disdain for police officers is typically not well received by the general public.  The court also leaves the impression that Alaska is the Wild West where everyone is intoxicated, minors are looking to steal kegs of beer, and police officers are routinely accosted and abused.  All in all, this does not paint a very good picture of Alaska.  Therefore, while I think it is novel to have Arctic Man serve as a backdrop to the evolution of our constitutional law, I wish Alaska would have been cast in a better light.

1306, 2019

The Rules Governing an Insurance Company’s Conduct

June 13th, 2019|

Written by David Karl Gross

No matter how safe or cautious you may be, the odds are high that you will eventually need to file an insurance claim.  The claim could be the result of a variety of situations; it could be a traffic accident due to a red light runner, perhaps a slip and fall in your home or business, or your home could suffer damage from an earthquake or fire.  When an unfortunate event occurs, your first action should be to contact your insurance company for assistance.  When you make the call, there is an expectation that the insurance company will jump into action.  Unfortunately, many people are disappointed by their insurer’s lack of responsiveness.

Luckily, there are rules in place requiring insurance companies to act in a certain manner.  These rules are found in the Alaska Claims Handling Regulations (3 AAC 26.010, et seq.), and are designed to set the minimum standards required of insurers in the first-party context.  (A first-party claim is a claim being made under a policy you have purchased.  A third-party claim is where you are seeking compensation under someone else’s policy.)  Being aware of these rules, or knowing where to find them, will help you understand what an insurer should do.

One of the first rules (3 AAC 26.040) deals with what the insurer must do when you put it on notice of a claim.  This rule states that when you tell the insurer about a claim (either by calling, emailing, faxing, writing, or on-line), it has 10 business days to inform you in writing that it has received the claim.  In the initial letter, the insurer is also required to provide you with the name of the adjuster that will be handling the claim, as well as contact information.  The insurer must also provide you with a claim number to track the claim and must specifically set forth the benefits you may be entitled to under the terms of the insurance policy.  If you make contact with an insurer, and if you ask a question that warrants a response, the insurer must respond to you within 15 business days, which prevents the insurer from unduly delaying the claim.

Once the insurance company begins its investigation of your claim, it must keep a detailed file, which includes all notes, work papers, statements, pictures, diagrams, and other such information. If the claim results in a lawsuit, all of the documentation in the file is discoverable (i.e., it must be provided to you), unless the material was prepared at the direction of a lawyer for the insurance company.  In other words, you will be able to have access to all of this information if a lawsuit is filed.

The insurer is required to let you know if the claim is being accepted or denied within 15 working days after receipt of the claim (3 AAC 26.040).  On occasion, there are exclusions or deadlines in the insurance policy that could allow the insurer to avoid coverage.  If the insurer is going to rely on one of these policy provisions to deny a claim, not only must they act fast (15 business days), but they are also required to provide you with a written denial of the claim, which must state the specific provisions, conditions, exclusions, and facts upon which the denial is based.  An adjuster cannot deny your claim over the telephone.

If only part of a claim is being denied, the insurer is required to pay you the portions of the claim it has no reason to dispute.  In other words, if you are injured in a car crash and you submit covered medical bills to your automobile insurance carrier for payment, an insurer is not allowed to delay the payment of the entire claim simply because it is challenging the reasonableness of one bill.  Instead, the insurer is obligated to promptly pay all undisputed bills.  Again, the idea behind this rule is to prevent an insurer from delaying the entire claim simply because one small part of it could be in dispute.

An insurance company is entitled to conduct a claim investigation, but any such investigation must be completed within 30 business days after you give written notification of the claim.  The only exception to this rule is if the insurer can demonstrate that the investigation cannot possibly be completed in the allowable timeframe after using due diligence.  If the insurer believes that additional time is needed, it is required to send you a letter outlining the reasons why additional time is needed and providing an estimate as to when the investigation will be complete.

If there are certain time limits in place, such as a statute of limitations, an insurer cannot delay your claim in an effort to avoid having to pay.  For example, if you make a claim 90 days before a statute of limitations runs, an insurer cannot delay the claim until after the statute of limitations has run and then contend that your claim is time barred.  Instead, the insurer must clearly notify you as to the time limits that might be expiring and the impact of missing a deadline.  This written notice must be given to you at least 60 calendar days (3 AAC 26.070) before the date the time limit will expire on.

If the insurer is required to pay your claim, it must do so promptly.  Payment should be made by a check that can be cashed at a bank located in the State of Alaska.  It is not proper for an insurer to issue payment with an out-of-state check, which will only delay the actual payment of the claim.

If it is determined that an insurer violated one or more of these rules, it will be deemed to have acted in an unfair and deceptive manner.  Such a finding can be used as evidence to establish bad faith if there is a lawsuit against the insurer for breaching the implied-in-law covenant of good faith and fair dealing, which is imbued in every insurance contract in Alaska.  In addition, if an insurer violates these rules, the Division of Insurance for the State of Alaska is authorized to order the insurer to cease and desist from such conduct, and if it refuses, to penalize the insurer in an amount up to $25,000.  If the insurer persists, the Division of Insurance can revoke the insurer’s license to conduct business in the State of Alaska and penalize the insurer an amount not to exceed $250,000. There are other rules that specifically deal with motor vehicle claims (3 AAC 26.080), property loss claims (3 AAC 26.090), worker’s compensation claims (3 AAC 26.100), and health insurance claims (3 AAC 26.110). 

If you are involved in a claim and you think your insurer has violated the above-stated rules, or is acting in a manner that is not in your best interests, it is always a good idea to have a lawyer examine the circumstances and to advise you if your claim is being handled properly.  The lawyers at Birch Horton Bittner & Cherot know the rules — inside and out – and stand ready to assist anyone who thinks that their insurer may not be playing by the rules.

606, 2019

A Deceased Judge Cannot Vote from the Grave

June 6th, 2019|

Written by:  David Karl Gross

The United States Supreme Court recently decided the issue of whether a deceased judge has the right to issue an official decision.  In Yovino v. Rizo, the Ninth Circuit Court of Appeals grappled with an issue related to the Equal Pay Act of 1963.  This issue was first decided by a three-judge panel, but then expanded to a full panel of 11 judges.  In order for the court to establish binding precedent, at least six judges needed to agree.

As it turns out, through varying concurring opinions, six judges did agree.  Judge Stephen Reinhardt, one of the six concurring judges, wrote the majority opinion.  Judge Reinhardt finished the opinion, officially filed it with the clerk, and was waiting for the official publication of the decision.  It would appear that the matter was final and that no further discussions were taking place.  Sadly, Judge Reinhardt passed away on March 29, 2018, eleven days before the opinion was actually published.  Therefore, at the time Judge Reinhardt’s majority opinion was issued by the Ninth Circuit, he was deceased.

The issue of whether Judge Reinhardt’s vote counted was critical to the outcome of the case. If Judge Reinhardt’s vote counted, there would be 6 of 11 judges in favor of the same outcome, and with a majority, the decision becomes precedential.  If Judge Reinhardt’s vote did not count, there would be a 5-to-5 tie and the decision would have no precedential value. The Ninth Circuit decided that Judge Reinhardt’s vote counted and added a footnote to the decision indicating that Reinhardt was deceased but that he “fully participated in the case” and that the opinion was final “prior to his death.”  The issue was appealed to the United States Supreme Court.

The Supreme Court issued a per curiam decision discussing the historical treatment of deceased judges.  The court pointed out that a judge has until the final publication of a decision to change his mind; therefore, the decision is not actually final until publication.  With this, Judge Reinhardt’s decision, and his vote, was not final until the decision was actually published on April 9, 2018.  Because Judge Reinhardt died before publication, his vote should not have counted, meaning that the Ninth Circuit’s decision in Yovino v. Rizo has no precedential value.  The court pointed out that “federal judges are appointed for life, not for eternity,” meaning that their authority as a judge ends at the moment their life ends.