Williams & Cochrane, Llp v. Sharon Rosette; Rosette & Associates, Pc; Rosette, Llp

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAMS & COCHRANE, LLP,
Plaintiff-Appellant,
v.
SHARON ROSETTE; ROSETTE &
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.
No. 23-55166
D.C. No.
3:17-cv-01436-RSH-DEB
MEMORANDUM*
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.
FILED
APR 17 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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.

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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.

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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

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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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