DELANO FARMS COMPANY v. CALIFORNIA TABLE GRAPE COMMISSION

Appellants’ Supplemental Brief

Cal.June 28, 2017

Case No. 8226538 IN THE SUPREME COURT OF CALIFORNIA DELANO FARMS COMPANY,FOURSTARFRUIT,INC., FILED GERAWANFARMING,INC., BIDART BROS., AND BLANC VINEYARDS Plaintiffs and Petitioners, JUN 28 2017 Jorge Navarrete Clerk Vv. CALIFORNIA TABLE GRAPE COMMISSION Deputy Defendant and Respondent. AFTER A DECISION BY THE COURT OF APPEAL, FIFTH DISTRICT Case No. F067956 SUPPLEMENTALBRIEF OF PETITIONERS PURSUANT TO RULE 8.520(d) BRIAN C. LEIGHTON MICHAEL W. McCONNELL Attorney At Law (admitted pro hac vice) 701 Pollasky Avenue Kirkland & Ellis LLP Clovis, California 93612 655 15th Street NW #1200 Telephone:(559) 297-6190 Washington, D.C. 20005 Facsimile: (559) 297-6194 T: (202) 879-5000 / F: (202) 879-5200 brian@lawleighton.com michael.mcconnell@kirkland.com Attorneysfor Plaintiffs and Petitioners Delano Farms Company, Four Star Fruit, | Inc., Gerawan Farming, Inc., Bidart Bros., and Blanc Vineyards Se oe TABLE OF CONTENTS INTRODUCTION... ccesescesecseeneesesaeesseeecsecseserseeseesecseeeaseseesesasssesesseeeneey 1 I. In finding trademarks were private—not government— speech, the court emphasized the lack of governmental oversight in the trademarking Process, ........cccescesseeceseeeeeceeeteeeeeenees 3 II. Matal confirmsjohann’s directive that advertisement messages must be “established”“from beginning to end” by the governmentto constitute government SpeeCh..........ssecsseseeeeeees 4 Il. Matal notes that walker “marks the outer boundsofthe government-speechdoctrine,” and the governmentthere “maintain[ed] direct control over the messages conveyed”............... 6 CONCLUSIONoieecseeceeceesneesceecesaeecsseenesseseesnecaeesecesceenanseaseaceneeaesesaeens 7 TABLE OF AUTHORITIES Page(s) Cases Johannsv. Livestock Marketing Association (2005) 544 U.S. 550 oeeecetecceceseeceeseeseecssesseceetesneesaeeesersseseneeneees 2,5 Matal v. Tam, No. 15-1293, 2017 WL 2621315 (U.S. June 19, 2017)wepassim Pleasant Grove City v. Summum (2009) 555 U.S. 460 oocecessecessseecssesssseecsecseeseneceseesseessersesaeeeneeneeenaes 4 Walker v. Texas Div., Sons ofConfederate Veterans, Inc. (2015) 135 S. Ct. 2239icccessccesssessssseseccsesesecsaeesensessecsseseseaeeneeaes 2, 6 Statutes 15 U.S.C. § 1052(a)... ececsccesesessessnesseecsssssseeesseeesecseeeseeesseeeaeeaeeaeseseeeneeaees l Other Authorities California Rule of Court 8.504 oo... .ccccccscccscsssessecseeenseseerssnessnsesrsseueeseseseeeaes 9 California Rule of Court 8.520 .......cecsssccsssssessccssersesseeesesecsseceessessrseeeetesses ] il INTRODUCTION Petitioners Delano Farms Company, Blanc Vineyards, LLC, Gerawan Farming, Inc., Four Star Fruit, Inc., and Bidart Brothers (together Petitioners”) respectfully submit this supplemental brief pursuant to rule 8.520(d)(1) of the California Rules of Court in order to address the impact of Matal v. Tam, No. 15-1293, 2017 WL 2621315 (U.S. June 19, 2017) on the issues presented for review in this case. BACKGROUND Matal v. Tam, No. 15-1293, 2017 WL 2621315 (U.S. June 19, 2017) dealt with a trademark applicant who petitioned the Court for review of a decision of the Patent and Trademark Office (“PTO”) that denied the petitioner’s application for a trademark pursuant to the “disparagement clause” of the Lanham Act. See 15 U.S.C. § 1052(a) (prohibiting the registration of trademarks that may “disparage ... or bring ... into contemp[t] or disrepute” any “persons, living or dead”). Specifically, petitioner wasthe lead singer of a rock group called “The Slants,” and asall members of the group were Asian-American, they had chosen this _ moniker—a commonly known derogatory term meant to disparage Asian persons—to “reclaim” the term and “drain its denigrating force.” (Jd. at *1.) The PTO denied petitioner’s application to trademark the term, however, on the grounds that the disparagement clause of the Lanham Act prohibited the requested trademark. (/bid. (quoting 15 U.S.C. § 1052(a).) 1 While the Court did not find all of petitioner’s arguments persuasive, it did hold that “[t]he disparagement clause violates the First Amendment’s Free Speech Clause” and rejected the government’s contention that trademarks could constitute government speech. Jd. In so doing, the Court emphasized that it “exercises great caution in extending its government- speech precedents, for if private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints.” (/bid.) DISCUSSION While Matal dealt with several issues inapposite to the present action, the Court’s discussion of what constitutes government versus private speech is highly instructive here. In particular, Petitioners discuss at length in their petition for review and subsequent briefing the import of Johanns v. Livestock Marketing Association (2005) 544 U.S. 550 and Walker v. Texas Div., Sons ofConfederate Veterans, Inc., (2015) 135 S. Ct. 2239 to the government speech doctrine at issue in the present matter. Matal further clarified both decisions in the course of explaining why the trademark process did not constitute government speech. I. IN FINDING TRADEMARKS WERE PRIVATE—NOT GOVERNMENT—SPEECH, THE COURT EMPHASIZED THE LACK OF GOVERNMENTAL OVERSIGHT IN THE TRADEMARKING PROCESS. As an initial matter, a key aspect of Petitioners’ argumentin this case is the lack of control and oversight actually exercised by the government in the messaging promulgated by the Table Grape Commission. (See Pet. Merits Br. at 17.) It is thus critical to recognize that in finding that trademarks do not constitute government speech, the Matal Court examined the trademarking process and emphasized the objectivity of that process and the lack of governmental oversight or involvement: e The government “does not dream up” proposed trademarks and “does not edit marks submitted for registration”; e “[A]n examiner may not reject a mark based on the viewpointthatit appears to express”’; e “[AJn examiner does not inquire whether any viewpoint conveyed by a mark is consistent with Governmentpolicy or whether any such viewpoint is consistent with that expressed by other marks already on the principal register”; e “{I]f the mark meets the Lanham Act’s viewpoint-neutral requirements, registration is mandatory”; e “[I]f an examiner finds that a mark is eligible for placement on the principalregister, that decision is not reviewed by any higherofficial unless the registration is challenged”; and e “(Once a mark is registered, the PTO is not authorized to removeit from the register unless a party moves for cancellation, the registration expires, or the Federal Trade Commission initiates proceedings based on certain grounds.” (Matal, 2017 WL 2621315, at *12.) As such,it is the Jack of governmental control and oversight that characterizes the “speech” inherent to a trademark as being private and not established by the federal government. See id. (noting that “[i]n light of all this, it is far-fetched to suggest that the content of a registered mark is government speech”). Petitioners similarly argue that the advertising messages promulgated by the Table Grape Commission constitute private speech because the applicable statutory framework does not require the government to exercise actual oversight of the messaging, and the government does not exercise any actual oversight in practice, even ifit is technically authorized to do so. (See e.g., Pet. Merits Br. at 17, 25, 31.) Thestructure of the process for promulgating messages on behalf of table grape producers in California thus bears one of the hallmarks of private speech recognized by the Matal Court. II. MATAL CONFIRMS JOHANN’S DIRECTIVE THAT ADVERTISEMENT MESSAGES MUST BE “ESTABLISHED” “FROM BEGINNING TO END” BY THE GOVERNMENT TO CONSTITUTE GOVERNMENT SPEECH While Matal acknowledgedthat “[t]he Free Speech Clause ... does not regulate government speech” and explained the necessity of the government-speech doctrine in certain instances, see Matal, 2017 WL 2621315 at *11 (quoting Pleasant Grove City v. Summum, (2009) 555 U.S. 460, 467) (internal quotation marks omitted), it emphasized that the Court “must exercise great caution before extending our government-speech precedents,” because the government-speech doctrine “is susceptible to dangerous misuse.” (Matal, 2017 WL 2621315, at *12 (emphasis added).) If, for instance, “private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints.” (/bid.) In concluding that “[nJone of [its] government speech cases even remotely supports the idea that registered trademarks are government speech,” the Matal Court analyzed one of the decisions most critical to this case: Johanns v. Livestock Marketing Association (2005) 544 U.S. 550. In doing so, the Court emphasized the government’s actual and extensive involvement with the ads crafted by the beef board. (See Matal, 2017 WL 2621315, at *13.) There, Congress and the Secretary of Agriculture “provided guidelines for the content of the ads, Department of Agriculture officials attended the meetings at which the content of specific ads was discussed, and the Secretary could edit or reject any proposed ad.” Jd. (emphasis added). The Court noted that the ads were ultimately considered government speech specifically because the content and messaging of the ads was “established” by the government “from beginning to end.” (Ibid. (quoting Johanns, 544 U.S. at 560) (emphasis added).) The government’s participation in the creation of the ads at issue in Johanns thus bore “no resemblance to anything that occurs when a trademark is registered.” (bid.) Il. MATAL NOTES THAT WALKER “MARKS THE OUTER BOUNDS OF THE GOVERNMENT-SPEECH DOCTRINE,” AND THE GOVERNMENT THERE “MAINTAIN[ED] DIRECT CONTROL OVER THE MESSAGES CONVEYED” Alongside Johanns, the Court analyzed another seminal government speech cased that Petitioners and Respondents both discussin their briefing here: Walker v. Texas Div., Sons ofConfederate Veterans, Inc., (2015) 135 S. Ct. 2239. The Court noted that Walker’s holding that messages promoted by Texas specialty license plates constitute government speech “marks the outer bounds of the government-speech doctrine.” (Matal, 2017 WL 2621315, at *14.) Among other factors, the Court emphasized that the messaging on license plates was ““‘often closely identified in the public mind’ with the State, since they are manufactured and ownedbythe State, generally designed by the State, and serve as a form of ‘government ID.”” (bid. (quoting Walker, 135 S.Ct. at 2249) (emphasis added).) Most critically, Texas “maintain[ed] direct control over the messages conveyed on its specialty plates.” (/bid. (emphasis added).) Matal thusreiterated Walker’s and Johanns’s clear conclusions that actual government involvement and control over the messaging is necessary for the government-speech doctrine to apply. This is precisely whatPetitioners argue here: because neither the Secretary of Agriculture nor any other democratically-accountable government entity exercised actual oversight or control over the messaging of the Table Grape Commission’s ads, the speech contained within them cannot be considered government speech and is not immune from the strictures of the Free Speech Clause of the California Constitution. (See Pet. Merits Br. at 41- 42.) Further, Respondents’ contentions that the Table Grape Commission’s ads are sufficiently attributed to the state of California|—see Resp. Ans.Br. at 51-52—is of no consequence: “simply affixing a government seal of approval” does not government speech make. (Matal, 2017 WL 2621315, at *12.) CONCLUSION In light of the Supreme Court’s recent Matal decision and the ways in which it bolsters Petitioners’ arguments regarding the government speech doctrine, Petitioners respectfully reiterate their request that the Court reverse the judgmentof the Court of Appeal and remandthis case for further proceedings. ' Petitioners disagree that the Commission’s adsareattributed to either the State or the Table Grape Commission, as they madeclear in their briefing on the merits. See Pet. Reply Br.at 23 (citing 8 CT 1743:25-1744:2; 9 CT 2045:6-2046:7; 2 CT 448-467); Pet. Merits Br. at 36. Dated: June 24 2017 Respectfully submitted, MICHAEL W. McCONNELL KIRKLAND & ELLIS LLP 655 15th Street NW #1200 Washington, D.C. 20005 Telephone:(202) 879-5000 Facsimile: (202) 879-5200 mich4e}.mcconnell@kirkland.com AN C. LEIGHTON Attorney At Law 701 Pollasky Avenue Clovis, California 93612 Telephone: (559) 297-6190 Facsimile: (559) 297-6194 brian@lawleighton.com Attorneysfor Plaintiffs and Petitioners Delano Farms Company, Four Star Fruit, Inc., Gerawan Farming, Inc., Bidart Bros., and Blanc Vineyards CERTIFICATE OF WORD COUNT PURSUANT TO RULE RULE8.504(d)(1) Pursuant to California Rule of Court 8.504(d)(1), counsel for Petitioners hereby certifies that the number of words contained in this Petition for Review, including footnotes but excluding the Table of Contents, Table of Authorities, and this Certificate, is 1,542 words as calculated using the word count feature of the computer program used to preparethe brief. Dated: Juner4, 2017 Respectfully submitted, By: on < Nwielaat W. McConnell Michael W. McConnel PROOF OF SERVICE I declare that: Iam employed in the County of Fresno, California. I am overthe age of eighteen years and nota party to the within action; my business address is 701 Pollasky, Clovis, California 93612. On June 27, 2017, I served a copy of the attached SUPPLEMENTALBRIEF OF PETITIONERS PURSUANT TO RULE8.520(d) on the interested parties herein by placing a true copy thereof in a sealed envelope, fully prepaid, and addressed as follows: Mr. Seth P. Waxman WILMER CUTLER PICKERING HALE and DORR LLP 1875 Pennsylvania Avenue, N.W. Washington, D.C. 20006 Counsel for Defendant/Respondent California Table Grape Commission Mr. Robert Wilkinson BAKER, MANOCK & JENSEN 5260 N. Palm Avenue, 4" Floor Fresno, CA 93704 Co-Counsel for Defendant/Respondent California Table Grape Commission Mr. Howard A. Sagaser SAGASER & ASSOCIATES 7550 N. Palm Avenue, Suite 201 Fresno, CA 93711 Co-Counselfor Plaintiffs 10 Mr. Jack Campbell DELANO FARMS COMPANY & BLANC VINEYARDS, LLC 10025 Reed Road Delano, CA 93215 Clients - Plaintiffs/Petitioners Mr. Dan Gerawan GERAWAN FARMING 7108 N. Fresno, Suite 450 Fresno, California 93720 Client - Plaintiff/Petitioner Mr. Byron Campbell FOUR STAR FRUIT,INC. 2800 Road 136 Delano, CA 93215 Client - Plaintiff/Petitioner Messrs. John & Leonard Bidart Bidart Bros. 4813 Calloway Drive Bakersfield, CA 93312 Client - Plaintiff/Petitioner Honorable Judge Donald S. Black Fresno County Superior Court 1130 “O”Street Fresno, CA 93721-2220 Superior Court Judge Clerk of the Court COURT OF APPEAL FIFTH APPELLATE DISTRICT 2424 Ventura Street Fresno, CA 93721 Appellate Court I declare under penalty of perjury of the State of California that the foregoingis true and correct and that this Declaration was 1] executed this 27" day of June, 2017, at Clovis, California. I declare that J am employedin the office of a memberofthe Bar of this Court at whosedirection this service was made. MLNUeede, Kimberly R.Barker, CCLS 12