NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 17 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIAMS & COCHRANE, LLP, No. 23-55166

Plaintiff-Appellant, D.C. No. 3:17-cv-01436-RSH-DEB v.

SHARON ROSETTE; ROSETTE & MEMORANDUM*

ASSOCIATES, PC; ROSETTE, LLP,

Defendants-Appellees,

and

QUECHAN TRIBE OF THE FORT YUMA

INDIAN RESERVATION; ROBERT

ROSETTE; RICHARD ARMSTRONG;

KEENY ESCALANTI, Sr.; MARK WILLIAM WHITE II; DOES, 1 through 10,

Defendants.

Appeal from the United States District Court for the Southern District of California Robert Steven Huie, District Judge, Presiding

Argued and Submitted April 9, 2024 Pasadena, California

Before: MURGUIA, Chief Judge, and MENDOZA and DE ALBA, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Plaintiff Williams & Cochrane (“W&C”) appeals the district court’s order

granting summary judgment in favor of Defendants Rosette on W&C’s claim for

false advertising under the Lanham Act. We have jurisdiction under 28 U.S.C. §

1291, and we affirm.

1. The district court concluded that “[b]ecause W&C has no evidence

that the Pauma Sentence influenced the Quechan Tribe’s decision—and because

the evidence establishes that it did not influence that decision—its Lanham Act

claim fails for lack of proximate causation.” We agree.

The Lanham Act proscribes false advertising—that is, making any “false or

misleading description of fact, or false or misleading representation of fact” in

commerce that “misrepresents the nature, characteristics, qualities, or geographic

origin” of goods or services in commercial advertising. 15 U.S.C. § 1125(a)(1)(B).

Critically, “a plaintiff suing under § 1125(a) ordinarily must show economic or

reputational injury flowing directly from the deception wrought by the defendant’s

advertising; and that . . . occurs when deception of consumers causes them to

withhold trade from the plaintiff.” Lexmark Int’l., Inc. v. Static Control

Components, Inc., 572 U.S. 118, 133 (2014) (emphasis added). A plaintiff “cannot

obtain relief without evidence of injury proximately caused by [a defendant’s]

alleged misrepresentations.” Id. at 140.

2 Quechan president Keeny Escalanti and Quechan Tribal Councilmember

Mark William White II had not reviewed Robert Rossette’s biography prior to the

June 2017 meeting. Nor had the Quechan Tribal Council reviewed any of

Rosette’s marketing or solicitation materials. There is no indication that Quechan

was even aware of Rosette’s biography, let alone that the biography caused

Quechan to fire W&C.1

Rather, the undisputed facts reflect that Quechan fired W&C due to

dissatisfaction with W&C’s representation in the ongoing gaming compact dispute.

Quechan fired W&C in large part due to its “exorbitant monthly flat fee” of

$50,000, and hired Rosette because it would do the same work “for 1/5 or less of

the monthly fees [Quechan was] paying to Williams & Cochrane without any

additional contingency fee.” In short, the allegedly false advertisement was not a

proximate cause of Quechan’s decision to change law firms, and the district court

properly granted summary judgment on this basis.

2. W&C also appeals the district court’s orders resolving the discovery

dispute among the parties, arguing that the district court erred in applying

1 In Lexmark, the Court permitted a false advertising claim to survive the motion to dismiss stage where the plaintiff had “alleged an adequate basis to proceed under § 1125(a)” and therefore was “entitled to a chance to prove its case.” 572 U.S. at 140; see also Enigma Software Group USA, LLC v. Malwarebytes, Inc., 69 F.4th 665, 671–74 (9th Cir. 2023) (reversing dismissal of false advertising claim). W&C had that chance, and still did not adduce any evidence to establish statutory standing for its Lanham Act claim.

3 California privilege law rather than federal law. We review the district court’s

choice-of-law determination de novo. Stromberg v. Qualcomm Inc., 14 F.4th

1059, 1066 (9th Cir. 2021).

Generally, “[t]he common law—as interpreted by United States courts in the

light of reason and experience—governs a claim of privilege . . . . But in a civil

case, state law governs privilege regarding a claim or defense for which state law

supplies the rule of decision.” Fed. R. Evid. 501; see also Lewis v. United States,

517 F.2d 236, 237 n.2 (9th Cir. 1975). “Where there are federal question claims

and pendent state law claims present, the federal law of privilege applies.” Agster

v. Maricopa County, 422 F.3d 836, 839–40 (9th Cir. 2005) (citation omitted).

Under federal common law, “the attorney-client privilege extends only to

communications made ‘for the purpose of facilitating the rendition of professional

legal services.’” In re Grand Jury, 23 F.4th 1088, 1092 (9th Cir. 2021) (quoting

United States v. Rowe, 96 F.3d 1294, 1296 (9th Cir. 1996)). Even when applying

federal common law, “[w]e may also look to state privilege law—here,

California’s—if it is enlightening.” Tennenbaum v. Deloitte & Touche, 77 F.3d

337, 340 (9th Cir. 1996); see also Lewis, 517 F.2d at 237.

Rosette withheld 213 documents as privileged attorney-client

communications. W&C challenged Rosette’s assertions of privilege on several

grounds, all of which the magistrate judge rejected. Although the magistrate judge

4 erred in applying California law, the outcome would have been the same under

federal law. Thus, the district court’s application of state privilege law was

harmless error. See Agster, 422 F.3d at 838 (explaining that a discovery “order

would become irrelevant for all practical purposes . . . if, upon appeal after a final

judgment, we assumed the impropriety of the discovery order but found the error

harmless”).

AFFIRMED.

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