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Inside Minimum Advertised Price Policies Page 1 SCOTUS Develop- ments in Bankruptcy Law Page 5 Magistrate Judge Block Page 11 Robot Price Wars Minimum Ad- vertised Pricing Policies And The Colgate Doctrine In The Era Of Smart Web Crawlers By Lily Y. Li A growing number of manufacturers and wholesalers are using mini- mum advertised pricing MAP policies to control how retailers showcase the price of their goods. Whether the products are smartphones luxury handbags or golf clubs manufacturers use MAP policies to protect brand integrity to encourage retail invest- ment in product display customer service and sales and to avoid the ever-present free-rider problem from price-cutting retailers who do not expend resources on brand promotion but take advantage of those who do. In contrast with a resale price maintenance RPM policy which controls downstream pricing a MAP policy places restrictions on the price at which downstream retailers display prices in fliers store windows - and with increasing importance on their websites. A thoughtfully draftedand consistently enforced MAP policy may avoid some of the antitrust pitfalls in state and fed- eral law that would otherwise apply to agreements on price. In todays e-commerce smart web crawlers can complicate the suc- cessful implementation of a MAP policy. Using automated bots competitors can now access information within an online retailers shopping cart and advertise these in-cart prices directly on the Inter- net. These tactics when successful essentially defeat the benefits of a MAP policy. Now more than ever manufacturers need to develop robust MAP policies to combat smart web crawlers yet avoid the antitrust implications of direct price controls. Advertised Price v. Sales Price Online The difference between advertised price and sales price can be tough to tell with an online retailer. After all both the advertised price and Continued on Page 7 The Newsletter of the Federal Bar Association Orange County Chapter Fall 2015 2 FBAOC P.O. Box 6130 Newport Beach CA 92658 949 608-9905 FBAOC Officers Matt Bellinger President Panteha Pani Abdollahi President-Elect Roman E. Darmer Treasurer Amy Laurendeau Secretary FBAOC Directors To October 2015 Michael Adams Hon. Robert N. Block Hon. David O. Carter Hon. Scott C. Clarkson Mike DeVries Collie James Kenneth Julian Melissa McCormick Van Nguyen David Outwater David Stein Rick Tach Jeffrey Thomas Jennifer Trusso To October 2016 Yasser El-Gamal Kiara Gebhardt Alan Greenberg Hon. Andrew J. Guilford John Mark Jennings Joey Liu Deborah Mallgrave Kenneth Parker Leo J. Presiado Daniel Rashtian Hon. James V. Selna Peter Villar Perry Viscounty Dennise D. Willett Dean Zipser Director Emeritus Hon. Arthur Nakazato Message From The Editors We proudly present the Fall 2015 issue of the Federal Bar Association Orange County newsletter. In this issue Lily Li of Brown Wegner McNamara discusses the legal and practical challenges of using and enforcing Minimum Advertised Price policies in electronic retail settings. Melissa Davis Lowe and Elyza P Eshaghi both attorneys at Shulman Hodges Bastian brief us on significant recent Bank- ruptcy opinions handed down by the Supreme Court of the United States. Finally we wish Magistrate Judge Robert N. Block a fond farewell as he begins his retirement. As always we offer our sincere thanks to this issues con- tributors for their hard work. And as always we welcome new submissions for future is- sues. Please contact us if you would like to submit an arti- cle to the newsletter for publication. Our best wishes to bench and bar as we head into the fall and winter holiday season. ______________________________ Matthew K. Wegner Rhianna S. Hughes Matthew K. Wegner Editor-in-Chief Brown Wegner McNamara LLP 2603 Main Street Suite 1050 Irvine California 92614 949 705-0080 FBAOC NEWSLETTER SUBMISSIONS 3 Message From The President By Matt Bellinger I am pleased to report that the FBAOC is concluding another suc- cessful year. We have had a number of events this year with a few more still to come. In May we sponsored our annual pro bono lunch program. The program featured several speakers including Judge Clarkson and Judge Guilford who spoke about the many pro bono opportunities available within the Central District. Later in May we held our civil practice program. Judge John B. Owens from the U.S. Court of Appeals for the Ninth Circuit gave an entertaining talk titled The Clerk the Thief His Life as a Baker Ashton Embry and the Supreme Court Leak Scandal. His presentation was followed by a discussion moderated by Judge McCormick. The month of May also included our fourth annual charity run event. Several of our members ran in the Orange County Marathon Half-Marathon5K to help raise money to support the pro se win- dow operated by the Public Law Center at the Federal Courthouse in Santa Ana. I would like to extend a special thank you to every- one who made donations to support that deserving cause. Over the summer we held our popular bench and bar series. In June Judge Selna spoke on the topic of Seven Things that Make a Judge Cranky or How to Stay on the Judges Good Side. In July Judge Block spoke about How Technology Has Changed the Prac- tice of Law and Judging. Both programs were well attended with the audience including many summer associates and interns. In September we held our intellectual property law seminar at UCI Law School. The program focused on hot topics in patent law. Judges Guilford Selna and Staton participated in the program as did a number of prominent in-house counsel. This month we hosted our Behind the Glass program at the Federal Courthouse in Santa Ana. The program featured a behind-the- scenes look at the Clerks Office and court staff were available to answer questions on a variety of topics. Still to come in 2015 we have our annual Judges Night program which will feature the presentation of the prestigious Judge Alicemarie H. Stotler Award and the swearing-in of our new offic- ers and directors. November will feature our annual criminal prac- Continued on Page 4 Matt Bellinger FBAOC President 4 Presidents Message Continued from Page 3 tice law program. Our programming year will conclude in December with our swearing-in event at which newly admitted attorneys can be sworn-in to the Central District bar. I would like to thank each of our board members for their efforts this year in planning these pro- grams and events. I also want to thank all of our FBAOC members for their continued support. If you are not yet a member I encourage you to join. Membership comes with many benefits including discounted admission rates to FBAOC programs. Membership information can be found on the FBAOC website at In addition I would like to thank our twenty-eight law firm and corporate sponsors. Sponsorships are available at a large firm small firm and corpo- rate level. Sponsors receive tickets to our bench and bar Judges Night and civil or criminal prac- tice programs as well as recognition at our events. For more information about becoming a FBAOC sponsor and the benefits of sponsorship please see our website. It has been an honor and privilege to serve as pres- ident of the FBAOC this year. As Pani Abdollahi follows as our next chapter president I am confi- dent that 2016 will be another successful year. I look forward to seeing you at upcoming FBA OC events. _________________________ Matt Bellinger is a partner in the Orange County of- fice of Knobbe Martens and is President of the Federal Bar Association Orange County chapter. Save the dates Thursday October 29 2015 Annual Judges Night Wednesday November 4 2015 Annual Criminal Law Program December 2015 Annual Swearing-in Event Exact date TBDcheck for details. 5 Recent Bankruptcy-Related Decisions From the United States Supreme Court By Melissa Davis Lowe and Elyza P. Eshaghi The Supreme Court of the United States recently issued two decisions which will have ominous effects on bankruptcy practi- tioners. The jurisdictional confusion pro- duced by the Supreme Courts decision in Stern v. Marshall has only been partially clarified by this terms decision in Well- ness Intl Network Ltd. et al. v. Sharif and its ruling in Baker Botts L.L.P. v. ASARCO LLC is contrary to long standing commercial bankruptcy practice and cre- ates practical implications by denying counsel compensation for fee-defense liti- gation. All Hope is Not Lost for Bankruptcy Judges Parties Can Consent to the Adjudication of Stern Claims in Bankruptcy Court The Supreme Court has recognized a loophole in its decision in Stern v. Marshall 564 U.S. 2 2011 holding that litigants can consent to the jurisdiction of the Bankruptcy Court to hear so-called Stern claims. On May 26 2015 in a 6-3 decision the Court in Wellness Intl Net- work Ltd. et al. v. Sharif 135 S. Ct. 1932 2015 held that litigants can consent to the jurisdiction of the Bankruptcy Court to adjudicate Stern claims so long as the consent whether express or implied is knowing and voluntary. The petitioner in the Wellness case was a manufacturer of health and nutrition products that entered into a contract with respondent for the distribution of petitioners products. The relationship failed and peti- tioner eventually obtained a large judgment against respondent. Re- spondent then filed for bankruptcy and petitioner filed an adversary complaint objecting to respondents discharge and seeking declaratory relief that a trust which respondent alleged held over 5 million of as- sets for his mother and which respondent merely administered on her behalf was the alter ego of respondent. Continued on Page 6 Newsletter Editors Matthew K. Wegner Brown Wegner McNamara Rhianna S. Hughes Payne Fears 6 Bankruptcy Decisions Continued from Page 5 Respondent admitted the action was a core bank- ruptcy proceeding in his answer. Discovery issues ensued and the Bankruptcy Court eventually found that respondent violated the courts discovery order and entered a default judgment against respondent denying his discharge and finding the trust to be the alter ego of respondent. The Supreme Court entered its decision in Stern six weeks before respondent filed his opening brief with the District Court but respondent failed to cite Stern. Instead after the briefing period ended re- spondent requested authority to file a supplemental brief to discuss Stern. The District Court denied that request and affirmed the Bankruptcy Courts ruling. On appeal the Seventh Circuit Court of Appeals held that a Stern objection cannot be waived be- cause it implicates structural interest considerations between the Bankruptcy Court and the District Court. Further the Seventh Circuit held the alter ego claim alleged against respondentdebtor was a Stern claim and thus the Bankruptcy Court did not have authority to enter final judgment on that claim. Referencing Commodity Futures Trading Commn v. Schor 478 U.S. 833 1986 where the CFTC tried to give itself authority to hear state law counter -claims the Supreme Court held that the right to Ar- ticle III adjudication is a personal constitutional right and as such is subject to waiver. In Schor the Court found no structural concern in allowing the parties to consent to the adjudication of their dis- putes by a non-Article III judge because Congress has made a quasi-judicial mechanism through which willing parties may at their option elect to resolve their differences just as Congress can en- courage parties to settle their disputes outside of court such as through arbitration. Further in Peretz v. United States 501 U.S. 923 1991 the Court previously held that a magistrate judge could super- vise jury selection with the consent of the parties. Based on such precedent the Supreme Court held in Wellness that the parties can waive their personal right to an Article III adjudicator as long as Article III courts retain supervisory authority. The Supreme Court found no threat to the integrity of the judicial branch by allowing litigants to consent to the juris- diction of Article I judges because bankruptcy judg- es like magistrate judges as discussed in Peretz are appointed and subject to removal by Article III judges and hear matters solely on the District Courts reference which may be withdrawn and as such the federal courts still maintain judicial con- trol. The Court went on to say that consent need not be express but rather need only be knowing and voluntary. Referring to Roell v. Withrow 538 U.S. 580 2003 the key inquiry is whether the litigant or counsel was made aware of the need for consent and the right to refuse it and still voluntarily ap- peared to try the case before the non-Article III ad- judicator. The Supreme Court discussed that the Wellness holding is not contradictory to Stern because Stern did not discuss the issue of consent and the Court made clear that the reach of Stern was narrow and did not intend to change the division of labor be- tween district courts and bankruptcy courts. Ulti- mately the case was remanded to the Seventh Cir- cuit to determine if respondent did in fact consent to the Bankruptcy Courts jurisdiction. Justice Alito concurred with the result but stated that consent must be express. Chief Justice Roberts ve- hemently dissented saying that the alter ego claim in Wellness stems from the bankruptcy itself and as such is not a Stern claim. As such Article III poses no barrier to the Bankruptcy Court deciding such a claim and the issue of waiver need not even be considered. Counsel will need to be very careful if they wish to challenge the jurisdiction of the Bankruptcy Court to hear a Stern-related claim. Counsel should raise the issue as soon as possible to ensure the court does not imply their clients consent. Query as to what will be enough to show that the litigant or counsel was made aware of the need for consent and the right to refuse itespecially if the litigant is pro se Continued on Page 9 7 Minimum Advertised Price Continued from Page 1 the sales price are available on the retailers web- site and are often one and the same. Though the Ninth Circuit has yet to address this issue head on a pair of district court decisions in New York have determined that MAP policies do not constitute RPM or vertical price-fixing policies when they a specifically state that retailers can set their own sales price b apply to internet and non-internet retailers alike and c provide retailers with with more than one way to communicate lower prices to clients either by allowing customers to call or email for a price quote or by allowing retailers to offer coupons at a websites checkout page. v. Franke Consumer Products Inc. 2011 WL 2565284 5 S.D.N.Y. 2011 v. KWC Products Inc. 2011 WL 4352390 5 S.D.N.Y. 2011. Thus at least for now the distinction between advertised price and sales price lies at the point of sale on the website the ubiquitous shopping cart. Smart Web CrawlersCombatting AI Free Riders In the past simple Captcha codes those weird twisted words that determine if you are human blocked web crawlers from accessing the shopping cart. If an online retailer implemented a MAP poli- cy automated web crawlers would only report the higher advertised prices to search engines or competitor websites not the lower in-cart price. Lately as we can see from the growing difficulty of CAPTCHA codes web crawlers have grown smart enough to get through these barriers. To address this problem manufacturers have the option of drafting their resale contracts usually authorized reseller agreements to require addi- tional security measures on checkout. These have the double benefit of blocking web crawlers and improving safeguards on consumer credit card da- ta 1. Two-Step Authentication Prior to Checkout Instead of a simple one-stage login process more and more retailers including Apple Google and Amazon use two-stage verification processes. These verification processes require consumers to enter passcodes or data received via e-mail or text or some other format in addition to the normal login. The PCI Security Standards Council an organization originally formed from the largest credit card vendors provides baseline security standards and certifications for credit card data security required by law in certain states. 2. Click-Through Terms of Use Agreement Over the past decade there have been a number of civil actions that allege trespass copyrights violations and violations of the Computer Fraud and Abuse Act against web crawlers that extract commercial data from websites. The success of these cases have in large part turned upon the Terms of Use Agreements on the websites in question. See eBay v. Bidders Edge 100 F.Supp.2d 1058 1060 N.D. Cal. 2000 Terms of Use agreement which re- quired users to click I Accept and prohibited ro- bots and web crawlers constituted a limited li- cense that controlled access to the site. Though these Terms of Use Agreements will not deter the most avid hackers the threat of potential liability may dissuade competing retailers from data scrap- ing efforts. Manufacturers beware make sure to carve out a provision in your MAP policy that allows you to monitor a retailers compliance with MAP so that you do not run afoul of your own retailers Terms of Use Alternatively manufacturers can implement more restrictive MAP policies to combat web crawlers which fall within the scope of Franke and KWC. The MAP policy can require the retailer to imple- ment a call in for a lower price strategy or only allow the use of limited-time or one-time only coupon codes. Of course the advantage of all of these approaches for manufacturers increased barriers to web crawlers also creates a potential deterrent to con- sumers. Prior to implementing these barriers re- tailers should carefully measure the loss of cus- tomers through these additional verification Continued on Page 8 8 Minimum Advertised Price Continued from Page 7 processes either through online AB market testing or other methods. The loss of customers may or may not outweigh any potential gains in profit from a robust MAP policy. Why Cant I Control Price Directly The Af- termath of Leegin Prior to the Supreme Courts decision in Leegin Creative Leather Products Inc. v. PSKS Inc. 551 U.S. 877 2007 federal antitrust law subjected hor- izontal price-fixing and vertical price-fixing to the same standard of review. Whether it was a deal be- tween competitors to maintain prices horizontal price-fixing or a deal between a manufacturer and its retailer to maintain prices vertical price-fixing or RPM the courts considered the activity to be per se illegal. The Leegin decision however noted the many pro-competitive effects of RPM. Higher mar- gins could encourage retailers to invest in customer service and attractive displays. By enforcing RPM policies manufacturers can protect retailers that spend money on these pro-consumer services and prevent them from being undercut by discount com- petitors that free ride off of these advertising and services for which they themselves have not paid. Id. at 890-91. Consequently the Supreme Court adopted the more forgiving rule of reason stand- ard to analyze whether the activity was an unreasonable restraint of trade. Though Leegin loosened the federal regulations against RPM policies the state responses to Leegin were more mixed. Manufacturers that implement RPM policies may yet face the risks of civil litiga- tion and state-level prosecution. For example in both Franke and KWC the courts noted that RPM policies are unenforceable under section 369-a of New Yorks General Business law. In New York the Attorney General sued Tempur-Pedic for termi- nating contracts with retailers that did not follow a RPM policy. Closer to home in California the At- torney General sued beauty product manufacturers Bioelements and Dermaquest for implementing RPM agreements. In contrast to RPM MAP policies have always been subject to the rule of reason standard of review and do not have the same degree of litigation and prosecution risks that RPM policies face. See Blind Doctor Inc. v. Hunter Douglas Inc. 2004 WL 1976562 N.D. Cal 2004 Campbell v. Austin Air Systems 423 F.Supp.2d 61 W.D.N.Y. 2005. Enforcing MAPThe Importance of Unilateral Action Under Colgate The federal Sherman Act prohibits all contracts combinations and conspiracies in restraint of trade. The Supreme Court held in United States v. Colgate Co. 250 U.S. 300 1919 however that manufac- turers do not violate the Sherman Act when they unilaterally announce resale prices in advance and refuse to sell to those that do not comply. California courts have expressly adopted the Colgate doctrine when applying Californias own antitrust statute the Cartwright Act. Chavez v. Whirlpool Corp. 93 Cal.App.4th 363 370 2001. Thus the Colgate doctrine provides a safe haven for manufacturers under federal and California antitrust law. So long as a manufacturer unilaterally announces a MAP policy in advance and then without negotiation refuses to deal with anyone who fails to comply with the MAP policy the manufacturer will be on safer ground under the Sherman Act and Cartwright Act. As soon as a manufacturer fails to enforce its MAP policy or negotiates different terms with one retail- er but enforces it with another there is a risk that the unequal treatment will be viewed as i an illegal conspiracy with the first retailer to harm the second retailer in violation of the ShermanCartwright Act or ii unfair competition in violation of California Business and Professions Code 17200 et seq. Sim- ilarly if manufacturers agree amongst each other to implement similar MAP policies for their retailers this would no longer constitute a unilateral policy and would fall under the proscriptions of the Continued on Page 10 9 Bankruptcy Decisions Continued from Page 6 Bankruptcy Professionals Must Work Pro Bono Before Getting Paid 11 U.S.C. Sec- tion 330a Does Not Authorize Compensa- tion for Attorney Fees Incurred in Defend- ing Fee Applications On June 15 2015 contrary to the standing authority in the Ninth Circuit and a majority of lower courts the Supreme Court issued its opinion in Baker Botts L.L.P. v. ASARCO LLC 2015 U.S. LEXIS 3920 June 15 2015 in a 6-3 decision ruling that Bank- ruptcy Code Section 330a does not authorize com- pensation for attorney fees incurred in defending fee applications. Respondent an integrated copper mining smelting and refining company filed a voluntary Chapter 11 bankruptcy petition. Petitioner was counsel to re- spondents bankruptcy estate. Due to petitioners efforts respondents reorganization was a success resulting in full payment to creditors including in- terest and attorneys fees. A primary reason for the effective reorganization was petitioners successful prosecution of a fraudulent transfer cause of action against respondents parent corporation which re- sulted in a judgment for respondent valued between 7 and 10 billion. Once the reorganization took effect respondent ceased being a debtor and the par- ent corporation regained control. Thereafter re- spondent under the control of the parent corpora- tion attacked petitioners fee application and all previously approved fees. After extensive discovery and a 6-day trial on fees the Bankruptcy Court awarded petitioner 5 million reduced from 8 million for the fees it incurred in successfully defending its fee application. On ap- peal the District Court affirmed and the Fifth Cir- cuit Court of Appeals later reversed. The Fifth Cir- cuit reasoned that absent explicit statutory authority to the contrary the American Rule that each par- ty to litigation bears its own costs governs and the text of 11 U.S.C. 330a does not authorize com- pensation for the costs counsel or professionals bear to defend their fee applications. In re Asarco L.L.C. 751 F.3d 2915th Cir. Tex. 2014. The Su- preme Court granted petitioners writ for certiorari and affirmed the Fifth Circuits holding. In the opinion delivered by Justice Thomas the Courts reasoning begins with the American Rule as the basic point of reference for awards of attor- neys fees. Because the American Rule is deeply rooted in common law the Court refused to deviate from it absent explicit statutory authority. Accord- ing to the Court Congress did not depart from the American Rule in 11 U.S.C. 330a1 because Section 330a1 only authorizes reasonable com- pensation for actual necessary services rendered. The word services the Court reasoned ordinarily refers to labor performed for another and thus the phrase reasonable compensation for services rendered necessarily implies loyal and disinterested service in the interest of a client therefore time spent litigating a fee application against the bank- ruptcy estates administrator cannot be fairly de- scribed as labor performed forlet alone disinterested service tothat administrator. Moreover the Court found the policy arguments unpersuasive. The Court found that the language of Section 330a1 does not override the American Rule in a fee-defense context and explained that fee- defense litigation could not be considered a part of Section 330a1s reasonable compensation or services rendered language. Considering fee- defense litigation a part of Section 330a1s services rendered suffers from an unnatural inter- pretation of the term services rendered and would permit attorneys to be awarded fees for unsuccess- fully defending fee applications when most fee- shifting provisions permit awards only to a prevailing party. In addition the Court rejected the argument that fee-defense litigation must be un- derstood as a component of Section 330a1s reasonable compensation to ensure that compen- sation for the actual . . . services rendered will not be diluted by unpaid time spent litigating fees and that competent counsel will not be deterred from taking bankruptcy workultimately finding that Continued on Page 11 10 Minimum Advertised Price Continued from Page 8 Sherman and Cartwright Act. See In the Matter of National Association of Music Merchants Inc. FTC File No. 001 0203 FTC filed charges against a music trade organization for facilitating agreements among music manufacturer dealers on MAP policies and a consent order followed. In advance implementation of a unilateral MAP policy sounds easy enough that is until a large andor very important retailer decides to disregard the MAP policy. At that point dropping the retail- er may seem like an intolerable business decision. Prior to implementing any MAP policy manufac- turers must consider whether they are willing to enforce MAP equally for all retailers regardless of size or market power. If not the risk of liability for antitrust and unfair competition could out- weigh the potential benefits of the MAP policy. Best Practices for Implementation of MAP Policies Given developments in case law and advances in web technology manufacturers should consider the following best practices when deciding if and how to implement a MAP Policy Expressly allow the retailer to control end pric- es in the text of any MAP Policy. Whether it is through coupon codes loyalty points or calling in for prices retailers must have oppor- tunities to set sales prices at checkout. Follow the Colgate Doctrine and strictly en- force MAP policies. Negotiations with retail- ers or other manufacturers can lead to antitrust liability. Combat Smart Web Crawlers. Consider in- cluding data security and Terms of Use provi- sions to any authorized reseller agreements with retailers to avoid the MAP-defeating ef- fects of web crawlers. Determine whether the risks of enforcing strict MAP policies on consumer retention outweigh the benefits of higher advertised prices. Determine whether the risks of enforcing a MAP policy and losing a major distributor outweigh the benefits of higher advertised prices. Whats Next Online retail is continuously evolving. While web crawlers flash sales social media events and dis- count coupons may be popular today innovative marketers - and hackers - are always looking for the next technological edge live-action coupons and rick rolling on virtual reality headsets. Since antitrust case law and legislation will always be one step behind the next technological surprise manufacturers and lawyers alike must consider MAP policies and distribution practices in anticipation of industry disruption and be able to adapt accordingly. _______________________________ Lily Y. Li is an associate attorney at Brown Wegner McNamara LLP in Irvine California. The views expressed here are the authors and not those of Brown Wegner McNamara its clients or the FBAOC. 1. Cf. Inc. v. L.D. Kichler Co. 2007 WL 963206 E.D.N.Y. March 28 2007. In this pre-Leegin decision the court denied defendants motion to dismiss a Sherman Act claim when plaintiff argued that a MAP policy constituted vertical price fixing. In this case the MAP policy at issue did not give retailers the opportunity to provide dif- ferent online prices at checkout. The KWC court expressly declined to follow the reasoning of Kichler. Despite the fail- ure of courts to follow the reasoning of Kichler this case serves as a cautionary tale to any manufacturers that wish to impose strict MAP policies across a retailers website. 2. 3. In Blind Doctor Inc. v. Hunter Douglas Inc. 2004 WL 1976562 N.D. Cal 2004 the court upheld a MAP policy that restricted all online sales of certain proprietary prod- ucts in the window covering industry blinds shades etc.. This is another extreme strategy for avoiding online price wars - obviously not applicable for most products. 4. Franke 2011 WL 2565284 5 KWC 2011 WL 4352390 5. 6.People v. Tempur-Pedic Intl Inc. No. 40083710 N.Y. Sup. Ct. 2011 People v. Bioelements Inc. No. 10011659 Cal. Super. Ct. 2010 People v. DermaquestInc No. RG10497526 Cal. Super. Ct. 2010. For more details on the risks of RPM policies see Minimum Advertised Pricing Programs Practical Pointers in the Wake of Leegin availa- ble at httpwww.edwardswildman.cominsights PublicationDetail.aspxpublication1834 11 Bankruptcy Decisions Continued from Page 9 this interpretation cannot be reconciled with Sec- tion 330a1s text and that bearing the cost of fee litigation provides no disincentive to bankrupt- cy counsel. The impact the Baker Botts decisions will have on bankruptcy counsel in the Ninth Circuit is as yet unknown. Prior to these rulings the Ninth Circuit has long interpreted 11 U.S.C. 330a as placing fee-defense compensation within the Bankruptcy Courts discretion allowing it to award fees for reasonable and necessary work. See In re Nu- corp Energy Inc. 764 F.2d 655 656 9th Cir. 1985 In re Riverside-Linden Investment Co. 945 F.2d 3209th Cir. 1991 In re Smith 317 F.3d 918 9th Cir. 2002 In re Wind N Wave 509 F.3d 938 9th Cir. 2007. The Baker Botts decision howev- er makes clear that litigation challenges to the al- lowance of professional fees are encouraged and that counsel should take this into consideration before representing an administrator of the bank- ruptcy estate. __________________________________ Melissa Davis Lowe and Elyza P. Eshaghi are associate attorneys at the Irvine California office of Shulman Hodges Bastian LLP. The views expressed here are the authors and not those of Shulman Hodges Bastian its clients or the FBAOC. United States Magistrate Judge Robert N. Block United States Magistrate Judge Robert N. Block retired this year after twenty years on the bench. Appointed by his colleagues in 1995 he served as the Chief Magistrate Judge from 2000 through 2005. Judge Block was not only a valued judicial officer but an active member of the Federal Bar AssociationOrange County Chapter where he served on the board of di- rectors. The Orange County Chapter of the Federal Bar Association thanks Judge Block for his many contributions and wishes him well in his retirement. 12 13 Federal Bar Association Orange County Chapter Please welcome the 2015-2016 FBAOC Board President Panteha Pani Abdollahi Paul Hastings President-Elect Roman E. Darmer Jones Day Treasurer Amy Laurendeau OMelveny Myers Secretary Van Nguyen Crowell Moring DIRECTORS TO 2016 Yasser El-Gamal Manatt Phelps Phillips Kiara Gebhart Shulman Hodges Bastian Alan Greenberg Greenberg Gross Hon. Andrew J. Guilford United States District Judge Joey Liu One LLP Deborah Mallgrave Snell Wilmer Hon. Arthur Nakazato United States Magistrate Judge Kenneth Parker Haynes Boone Leo J. Presiado Brown Rudnick Daniel Rashtian Troutman Sanders Hon. James V. Selna United States District Judge Peter Villar Troutman Sanders Perry Viscounty Latham Watkins Dennise Willett United States Attorneys Office Dean Zipser Umberg Zipser LLP DIRECTORS TO 2017 Jennifer Bradford Morgan Lewis Bockius LLP Hon. David O. Carter United States District Judge Brian Claassen Knobbe Martens Olson Bear Hon. Scott C. Clarkson United States Bankruptcy Judge Kate Corrigan Corrigan Welbourn Stokke APLC Mike DeVries Kirkland Ellis Chelsea Epps Rutan Tucker Hon. Jay C. Gandhi United States Magistrate Judge Lisa Glasser Irell Manella Joshua Jessen Gibson Dunn Crutcher Hon. Josephine Staton United States District Judge David Stein Alston Bird LLP Jennifer Trusso Sheppard Mullin Richter Hampton Matt Wegner Brown Wegner McNamara LLP 14 The FBAOC thanks its law firm and corporate sponsors. Akin Gump Strauss Hauer Feld Alston Bird Brown Rudnick Brown Wegner McNamara Corrigan Welbourn Stokke APLC Crowell Moring Gibson Dunn Crutcher Greenberg Gross Haynes and Boone Irell Manella Jones Day Kirkland Ellis Knobbe Martens Olson Bear Latham Watkins Manatt Phelps Phillips Morgan Lewis Bockius OMelveny Myers One LLP Outwater Pinckes PacTech Law Paul Hastings Rutan Tucker Sheppard Mullin Richter Hampton Shook Hardy Bacon Shulman Hodges Bastian Snell Wilmer Troutman Sanders Umberg Zipser