Susan Illston

Sitting by designation of the Ninth Circuit Court of Appeals, in 1999 Illston wrote the panel decision in DiLoreto v. Downey Unified School District Board of Education, 196 F.3d 958 (9th Cir. 1999), cert. denied, 529 U.S. 1067 (2000), which held that an athletic fence which a public high school made available for commercial advertising is a nonpublic forum from which religious messages could be excluded without violating the First Amendment.[5]

In February 2004, Illston ruled in 321 Studios v. Metro Goldwyn Mayer Studios, Inc. that the company's software, which was intended, according to the company, to allow consumers to make backup copies of DVDs by "circumventing" so-called "copy protection" methods, was illegal under Federal law. She issued an injunction at the behest of several Hollywood studios and ordered 321 Studios to stop selling their product. However, despite finding that the software violated Federal law, she ruled that copies made by consumers (of their own legally purchased DVDs) were, in fact, legal. She wrote in her opinion, "It is the technology itself at issue, not the uses to which the copyrighted material may be put...Legal downstream use of the copyrighted material by customers is not a defense to the software manufacturer's violation of the provisions [of copyright law]."[6]

In August 2006, Illston sentenced Patrick Arnold, a chemist who developed an undetectable performance-enhancing drug for BALCO, to three months in prison.[7]

In March 2009, Illston presided over a perjury case involving Barry Bonds.[8]

In April 2009, Illston ruled that two students who were threatened with suspension by their community college, the College of Alameda, could sue the school for free speech infringement.[9]

In October 2009, Illston ruled in favor of environmental groups, including the Center for Biological Diversity, that sued the U.S. Bureau of Land Management (BLM) over a 5,000 mile expansion of off-roading trails in California's Mojave Desert. Illston found that the BLM had violated its own regulations[10] when it designated the routes in 2006[11] without adequately analyzing the impacts on air quality, soils, plant communities and sensitive species such as the endangered Mojave fringe-toed lizard. Illston called the BLM's plan "flawed because it does not contain a reasonable range of alternatives" to limit damage to sensitive habitat and pointed out that the desert and its resources are "extremely fragile, easily scarred, and slowly healed."[12] The court also found that the BLM had failed to follow route restrictions established in the agency’s own conservation plan, resulting in the establishment of hundreds of illegal off roading routes during the past three decades.[10] Illston ruled that the plan specifically violated the Federal Land Policy and Management Act of 1976 (FLPMA) and the National Environmental Policy Act of 1969 (NEPA).[11]

Illston in 2011 was the presiding judge in Sony Computer Entertainment America LLC v. George Hotz, et al.,[13] in which Sony claimed that Hotz's jailbreaking of the Sony PlayStation 3 violated the Digital Millennium Copyright Act.[14] She granted Sony permission to track as much information as possible about those who had seen a private YouTube video about the jailbreak and to read their comments, plus obtain access to IP addresses, accounts, and other details of visitors to sites run by Geohot. The access granted by Illston extended even to those who had not downloaded the jailbreak code.[15]

In a March 15, 2013, ruling Judge Illston granted petitioner's motion to set aside a National Security Letter (NSL), ruling that the NSL's nondisclosure and judicial review provisions suffer from significant Constitutional infirmities.[16] The petitioner argued that the nondisclosure provision of statute 18 U.S.C. § 2709(c) was an unconstitutional prior restraint and content-based restriction on speech.[17] The decision came in a lawsuit challenging a NSL on behalf of an unnamed telecommunications company represented by the Electronic Frontier Foundation (EFF).[18] The judge stayed her decision for 90 days to give the government the opportunity to appeal.[19][20]

in April 2020, Illston issued an order -- ultimately overturned by the US Supreme Court -- denying Slack Technologies’ motion to dismiss a securities class action complaint against it following a direct listing by the company.[21] The judge held that the plaintiff did not lack standing to pursue claims under Section 11 of the Securities Act where the purchased shares were not traceable to the allegedly misleading registration statement, in the unique situation of a direct listing in which shares registered under the Securities Act become publicly tradeable on the same day that unregistered shares become publicly tradeable, even though the plaintiff could not show that the shares the plaintiff acquired were registered.[22] Illiston certified her ruling for interlocutory appeal, and the Ninth Circuit - with a divided panel - affirmed.[23] Dissenting, Judge Eric D. Miller argued that Sections 11 and 12 require a plaintiff to prove that he purchased securities registered under a materially misleading registration statement, something Pirani had not done, and cited a long line of lower court decisions that interpreted Section 11 as applying only to shares purchased pursuant to a registration statement.[23]

The United States Supreme Court ultimately reviewed the case. It noted in its unanimous June 2023 decision that lower federal courts had held since the 1960s that liability under Section 11 of the Securities Act of 1933 attaches "only when a buyer can trace the shares he has purchased to a false or misleading registration statement."[23] It held that "because we think the better reading of the particular provision before us requires a plaintiff to plead and prove that he purchased shares traceable to the allegedly defective registration statement, we vacate the Ninth Circuit’s judgment holding otherwise."[23]