source: Caselaw Access Project

author: CHRISTEN, Circuit Judge:

license: Public Domain

text:
    TRADER JOE’S COMPANY, a California Corporation, Plaintiff-Appellant, v. Michael Norman HALLATT, an individual, DBA Pirate Joe’s, AKA Transilvania Trading, Defendant-Appellee
    No. 14-35035
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted on June 7, 2016 Seattle, Washington
    Filed August 26, 2016

      Anna-Rose Mathieson (argued), California Appellate Law Group, San Francisco, California; Tim Byron, O’Melveny & Myers LLP, San Francisco, California; Brian M. Berliner and Jordan Raphael, O’Melveny & Myers, LLP, Los Angeles, California; for Plaintiff-Appellant.
    Nathan Alexander (argued), Dorsey & Whitney LLP, Seattle, Washington, for DefendanL-Appellee.
    Before: RICHARD A. PAEZ, JAY S. BYBEE, and MORGAN CHRISTEN, Circuit Judges.
   OPINION

CHRISTEN, Circuit Judge:

This trademark infringement case turns on the extraterritorial .reach of the Lan-ham Act. It is uncontested that Defendant Michael Norman Hallatt purchases Trader Joe’s-branded goods in Washington state, transports them to Canada, and resells them there in a store he designed to mimic a Trader Joe’s store. Trader Joe’s sued for trademark infringement and unfair competition under the Lanham Act and Washington state law. The district court recognized that the Lanham Act can apply to conduct that occurs abroad, but it dismissed the Lanham Act claims for lack of subject-matter jurisdiction after concluding that Hallatt’s allegedly infringing activity takes place in Canada, and that Trader Joe’s did not adequately explain how Hallatt’s activity impacts American commerce. The district court dismissed Trader Joe’s’ state law claims for similar reasons.

We affirm in part and reverse in part. Consistent with recent case law from the Supreme Court and our court, we hold that the extraterritorial reach of the Lan-ham Act raises a question relating to the merits of a trademark claim, not to federal courts’ subject-matter jurisdiction. On the merits, we conclude that Trader Joe’s alleges a nexus between Hallatt’s conduct and American commerce sufficient to warrant extraterritorial, application of the Lanham Act. We therefore reverse in part. But because Trader Joe’s does not allege trademark dilution in Washington or harm to a Washington resident or business, we affirm the court’s dismissal of the state law claims.

BACKGROUND

The complaint alleges that Trader Joe’s is a well-known American grocery store that sells specialty goods at reasonable prices from its distinctive, South Pacific-themed stores. It is headquartered in Monrovia, California, but it operates hundreds of stores throughout the United States, including more than a dozen stores in Washington. About eighty percent of the goods Trader Joe’s sells in its stores are Trader Joe’s-branded products that are available only at Trader Joe’s. Trader Joe’s does not franchise its intellectual property or license others to sell its products. Trader Joe’s maintains strict quality control standards when transporting and storing perishable goods to protect the safety of its customers and to ensure that Trader Joe’s stores sell only fresh, high-quality goods. Trader Joe’s has rejected offers from third parties to enter into franchise agreements, in part because of the difficulty of “ensuring that these third parties will ship, handle, and store food products pursuant to Trader Joe’s exacting standards.” Trader Joe’s does not operate outside of the United States, but Canadian consumers regularly travel across the border to shop at Trader Joe’s stores located in northern Washington.

Trader Joe’s owns several federally registered and common-law trademarks associated with its stores and products. Its family of marks includes a trademark for the red, stylized “Trader Joe’s” text, see Fig. 1, and numerous trademarks for Trader Joe’s-branded products. Trader Joe’s also alleges that it has trade dress protection for its South Pacific-themed store design. See Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 775-76, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992) (recognizing that distinctive store design is a form of trade dress). Trader Joe’s carefully cultivates its brand through advertising, promotion, and word-of-mouth referrals, and, according to the complaint, its trademarks and trade dress “have come to symbolize extraordinary goodwill and have achieved great fame both within and outside the United States” due to these efforts. This fame and popularity has generated substantial domestic and international demand for Trader Joe’s products.

Fig. 1:

In October 2011, staff members at the Bellingham Trader Joe’s store noticed something odd about, one of their customers: Canadian resident Michael Norman Hallatt visited the store several times per week to buy large quantities of Trader Joe’s products. When questioned, Hallatt admitted that he drives the goods he purchases across the Canadian border where he distributes them to Canadian customers. Trader Joe’s later learned from one of its Canadian customers that Hallatt opened a store in Canada named Transil-vania Trading (which he later renamed “Pirate Joe’s”) where he resells, at substantially inflated prices, Trader Joe’s goods purchased in Washington. Trader Joe’s alleges that Hallatt uses its intellectual property to solicit business for Pirate Joe’s: He advertises his wares with Trader Joe’s trademarks, operates a website accessible from the United States, displays an exterior sign at Pirate Joe’s that uses a font similar to the trademarked “Trader Joe’s” insignia, Fig. 2, and designed the Pirate Joe’s store to mimic Trader Joe’s trade dress. Hallatt sells perishable goods at Pirate Joe’s that he does not transport or store in a manner consistent with the strict quality control standards used by Trader Joe’s. Trader Joe’s has received at least one complaint from a consumer who became sick after eating a Trader Joe’s-branded product she purchased from Pirate Joe’s.

Fig. 2:

Trader Joe’s told Hallatt that it does not sanction his activity and demanded that he stop reselling Trader Joe’s products from Pirate Joe’s. Hallatt refused. Trader Joe’s declined to serve Hallatt as a customer, but Hallatt, undeterred, began donning “disguises to shop at Trader Joe’s without detection” and driving “to Seattle, Portland, and even California to purchase TRADER JOE’S-branded products and evade Trader Joe’s refusal to sell to them.” The complaint also alleges that Hallatt pays third parties in Washington to buy Trader Joe’s goods on his behalf. On appeal, Trader Joe’s contends that Hallatt accomplishes his scheme in part because he is a United States Lawful Permanent Resident (LPR), an immigration status that enables him to live and work legally in the United States. All told, Hallatt has spent more than $350,000 purchasing Trader Joe’s products to resell in Canada.

Trader Joe’s sued Hallatt (doing business as Pirate Joe’s) for trademark infringement in the Western District of Washington, invoking that court’s federal question and supplemental jurisdiction. 28 U.S.C. §§ 1331, 1367. Trader Joe’s alleged that Hallatt violated federal and state trademark and unfair competition laws by misleading consumers “into falsely believing that Pirate Joe’s and/or Transilvania Trading have been authorized or approved by Trader Joe’s,” displaying Trader Joe’s trademarks and mimicking Trader Joe’s trade dress, and reselling Trader Joe’s goods without authorization and without adhering to Trader Joe’s’ strict quality control practices. According to Trader Joe’s, this conduct dilutes its trademarks, confuses consumers, and damages Trader Joe’s’ reputation by associating it with high-cost, reduced-quality goods. The complaint includes six claims for relief, four of which arise under the Lanham Act and two of which arise under Washington law: (1) federal trademark infringement, 15 U.S.C. § 1114(1); (2) unfair competition, false endorsement, and false designation of origin, 15 U.S.C. § 1125(a)(1)(A); (3) false advertising, 15 U.S.C. § 1125(a)(1)(B); (4) federal trademark dilution, 15 U.S.C. § 1125(c); (5) state trademark dilution, Wash. Rev. Code § 19.77.160; and (6) deceptive business practices in violation of the Washington Consumer Protection Act, Wash. Rev. Code § 19.86.020. Trader Joe’s asked the district court to award it damages and permanently enjoin Hallatt from reselling its goods or using its trademarks in Canada.

The district court granted Hallatt’s motion to dismiss Trader Joe’s’ federal claims for lack of subject-matter jurisdiction, concluding that the Lanham Act did not apply to Hallatt’s conduct in Canada. The court denied Trader Joe’s leave to amend its federal claims, but granted Trader Joe’s the opportunity to assert an independent jurisdictional basis for its state law claims. Trader Joe’s filed a motion for reconsideration in which it argued that the extraterritorial scope of the Lanham Act is a merits question that does not implicate the district court’s subject-matter jurisdiction. The district court denied the motion. Trader Joe’s then filed-an amended complaint reasserting its state law claims and invoking the district court’s diversity jurisdiction. Hallatt filed a motion to dismiss for failure to state a claim, which the district court granted.

The district court entered final judgment on December 18, 2013, and Trader Joe’s timely appealed. We have jurisdiction under 28 U.S.C. § 1291.

DISCUSSION

A. Lanham Act claims

The Lanham Act is the federal trademark and unfair competition statute. It creates a civil cause of action against “[a]ny person who shall ... use in commerce any ... colorable imitation of a registered mark,” 15 U.S.C. § 1114(1) (Lanham Act section 32), or “[a]ny person who ... uses in commerce any” word, false description, or false designation of origin that “is likely to cause confusion ... or to deceive as to the affiliation,” origin, or sponsorship of any goods, id. § 1125(a)(1) (Lanham Act section 43). The Act broadly defines commerce as “all commerce which may lawfully be regulated by Congress,” id. § 1127, and gives federal courts jurisdiction over all claims arising under it, id. § 1121(a).

We determine whether any statute, including the Lanham Act, reaches foreign conduct by applying a two-step framework. See RJR Nabisco, Inc. v. European Cmty., - U.S. -, 136 S.Ct. 2090, 2101, 195 L.Ed.2d 476 (2016). At step one we ask “whether the statute gives a clear, affirmative indication that it applies extraterritorially.” Id. The Supreme Court settled this question with regard to the Lanham Act when it held that the Act’s “use in commerce” element and broad definition of “commerce” clearly indicate Congress’s intent that the Act should apply extraterrito-rially. See Steele v. Bulova Watch Co., 344 U.S. 280, 286, 73 S.Ct. 252, 97 L.Ed. 319 (1952). Where, as here, Congress intended a statute to apply extraterritorially, we proceed to step two and consider “the limits Congress has (or has not) imposed on the statute’s foreign application.” RJR Nabisco, 136 S.Ct. at 2101.

We resolve two questions to decide whether the Lanham Act reaches Hallatt’s allegedly infringing conduct, much of which occurred in Canada: First, is the extraterritorial application of the Lanham Act an issue that implicates federal courts’ subject-matter jurisdiction? Second, did Trader Joe’s allege that Hallatt’s conduct impacted American commerce in a manner sufficient to invoke the Lanham Act’s protections? Because we answer “no” to the first question but “yes” to the second, we reverse the district court’s dismissal of the federal claims and remand for further proceedings.

1. Subject-matter jurisdiction

Trader Joe’s argues on appeal that the extraterritorial reach of the Lanham Act is a non-jurisdictional merits question, and that the Supreme Court’s decision in Arbaugh v. Y&H Corp., 546 U.S. 500, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006), abrogated circuit case law suggesting otherwise. Hallatt counters that this court has long treated the extraterritorial application of the Lanham Act as an issue of subject-matter jurisdiction, and that the panel may not deviate from this precedent. We agree with Trader Joe’s.

When the district court dismissed the federal claims for lack of subject-matter jurisdiction, it did not have the benefit of our recent decision in La Quinta Worldwide LLC v. Q.R.T.M., S.A. de C.V., 762 F.3d 867 (9th Cir. 2014). There, we held that the Lanham Act’s “use in commerce” element (the element that gives the Act extraterritorial reach) is not jurisdictional. Id. at 873-74. In La Quinta, an American hotel chain, La Quinta Worldwide; sued a Mexican, competitor, Quinta Real, for trademark infringement after Quinta Real expressed an intent to expand its business into the United States. Id. at 872. The district court held a bench trial and found in La Quinta’s favor. Id. On appeal, Quinta Real asserted for the first time “that there is no federal subject-matter jurisdiction over this case.” Id. Quinta Real argued that the Lanham Act’s “use in commerce” requirement is jurisdictional; its expressions of intent to open a hotel were not sufficient to show a “use in commerce” under the Lanham Act; and that the Ninth Circuit was required to dismiss the appeal for lack of subject-matter jurisdiction. Id.

Our court rejected those arguments. Citing Arbaugh, 546 U.S. at 513-14, 126 S.Ct. 1235, we reasoned that “federal courts have subject-matter jurisdiction over all suits pleading ‘a colorable claim “arising under” the Constitution or laws of the United States,’ so long as Congress does not clearly indicate otherwise.” La Quinta, 762 F.3d at 873. Because “the ‘use in commerce’ element of Lanham Act claims under sections 32 and 43(a) is not connected to the Lanham Act’s jurisdictional grant in 15 U.S.C. § 1121(a),” the element “is not a jurisdictional requirement, and we have subject-matter jurisdiction under 15 U.S.C. § 1121(a).” Id. at 872-73; see also Arbaugh, 546 U.S. at 516, 126 S.Ct. 1235 (“[W]hen Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character.”).

Hallatt correctly argues that La Quinta is not on all fours with this case because La Quinta did not consider the Lanham Act’s extraterritorial reach. The parties in La Quinta disputed whether Quinta Real’s intent to expand its business to the United States constituted “use” within the meaning of the Lanham Act. See 762 F.3d at 872; see also Sensient Techs. Corp. v. SensoryEffects Flavor Co., 613 F.3d 754, 762-63 (8th Cir. 2010) (explaining that the Lan-ham Act imposes liability for trademark infringement only if there is use of another’s mark in commerce). La Quinta did not need to address the Lanham Act’s extraterritorial scope because Quinta Real’s contemplated infringing activity was to occur in the United States. 762 F.3d at 872.

Nevertheless, La Quinta’s jurisdictional analysis still dictates the outcome here. As noted, it is the Lanham Act’s “use in commerce” element and its broad definition of “commerce” that give the statute extraterritorial reach. See Steele, 344 U.S. at 283-84, 73 S.Ct. 252. These are the same elements that the panel considered in La Quinta, see 762 F.3d at 872-73; they derive from Congress’s power to regulate interstate and foreign commerce under the Commerce Clause, U.S. Const, art. I, § 8, cl. 3. See 15 U.S.C. § 1114 (applying to marks “use[d] in commerce”); id. § 1125 (same); id. § 1127 (“The word ‘commerce’ means all commerce which may lawfully be regulated by Congress.”). The constitutional source of this authority is the same whether or not the alleged infringement implicates the extraterritorial scope of the Lanham Act: Congress can no more regulate intrastate, non-commercial possession of another’s mark (the issue raised in La Quinta) than trademark infringement that occurs entirely outside of the country’s borders. See Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 427-28 (9th Cir. 1977) (analogizing the Lanham Act’s application to purely intrastate activities to the Act’s application to purely foreign activities). Thus, La Quinta’s conclusion that the Lanham Act’s “use in commerce” element is not jurisdictional applies here even though La Quinta considered the scope of the word “use,” rather than the Act’s extraterritorial reach.

More importantly, La Quinta is consistent with recent Supreme Court case law addressing federal courts’ subject-matter jurisdiction. See Morrison v. Nat’l Aust. Bank, Ltd., 561 U.S. 247, 253-54, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010); Arbaugh, 546 U.S. at 516, 126 S.Ct. 1235. In Arbaugh, the Court clarified “the difference between elements of a claim and jurisdictional requirements,” La Quinta, 762 F.3d at 873, holding that “the numerical qualification contained in Title VII’s definition of ‘employer’ ... delineates a substantive ingredient of a Title VII claim for relief’ and does not “affeet[] federal-court subject-matter jurisdiction,” Arbaugh, 546 U.S. at 503, 126 S.Ct. 1235. In Morrison, the Court applied Arbaugh and held that the extraterritorial reach of the Securities and Exchange Act § 10(b) is a merits question, not a question of federal courts’ subject-matter jurisdiction. See 561 U.S. at 253-54, 130 S.Ct. 2869. Its discussion of the issue is particularly relevant:

Before addressing the question presented, we must correct a threshold error in the Second Circuit’s analysis. It considered the extraterritorial reach of § 10(b) to raise a question of subject-matter jurisdiction, wherefore it affirmed the District Court’s dismissal under Rule 12(b)(1)....
But to ask what conduct § 10(b) reaches is to ask what conduct § 10(b) prohibits, which is a merits question. Subject-matter jurisdiction, by contrast, “refers to a tribunal’s ‘power to hear a case.’ ” It presents an issue quite separate from the question whether the allegations the plaintiff makes entitle him to relief. The District Court here had jurisdiction under 15 U.S.C. § 78aa to adjudicate the question whether § 10(b) applies to National’s conduct.

Id. (citations and footnote omitted). This analysis is equally applicable to the Lan-ham Act. See Love v. Associated Newspapers, Ltd., 611 F.3d 601, 613 (9th Cir. 2010) (explaining the Lanham Act applies to defendants’ foreign conduct when that conduct impacts American commerce). We hold that the extraterritorial reach of the Lanham Act is a merits question that does not implicate federal courts’ subject-matter jurisdiction, and that the district court erred as a matter of law when it decided otherwise.

But this conclusion does not end our work. The district court dismissed Trader Joe’s case at the pleadings stage, but as in Morrison, “nothing in [its analysis] turned on” the fact that it dismissed the case under Rule 12(b)(1), rather than under Rule 12(b)(6). Morrison, 561 U.S. at 254, 130 S.Ct. 2869; see also Arbaugh, 546 U.S. at 507, 126 S.Ct. 1235 (explaining that a merits argument “endures up to ... trial on the merits”). As explained infra, our longstanding Timberlane test for the Lan-ham Act’s extraterritorial application applies whether the extraterritorial scope of the statute is a jurisdictional or merits question, so remand to the district court would only “require [it to put] a new Rule 12(b)(6) label [on] the same Rule 12(b)(1) conclusion.” Morrison, 561 U.S. at 254, 130 S.Ct. 2869. Rather than asking the district court to engage in this exercise, we consider whether the Lanham Act reaches Hal-latt’s allegedly infringing conduct under the standards set by Rule 12(b)(6).

2. The merits of the Lanham Act

We next consider the limits, if any, Congress imposed on the Act’s extraterritorial application. .See RJR Nabisco, 136 S.Ct. at 2101 (discussing “step two”). In 15 U.S.C. § 1127, Congress directed that the Lanham Act applies to “all commerce which may lawfully be regulated by Congress.” Whether this provision sweeps foreign activities into the Act’s proscriptive reach depends on a three-part test we originally applied to the Sherman Act in Timberlane Lumber Co. v. Bank of America National Trust & Savings Ass’n, 549 F.2d 597 (9th Cir. 1976). See Wells Fargo, 556 F.2d at 427 (extending Timberlane test to the Lanham Act). Under Timber-lane, the Lanham Act applies extraterrito-rially if:

(1) the alleged violations ... create some effect on American foreign commerce; (2) the effect [is] sufficiently great to present a cognizable injury to the plaintiffs under the Lanham Act; and (3) the interests of and links to American foreign commerce [are] sufficiently strong in relation to those of other nations to justify an assertion of extraterritorial authority.

Love, 611 F.3d at 613.

a. Timberlane prongs one and two

Timberlane’s first two prongs require Trader Joe’s to allege that Hallatt infringes its trademarks (1) in a way that affects American foreign commerce, and (2) causes Trader Joe’s a cognizable injury under the Lanham Act. Id. A defendant’s foreign activities need not have a substantial or even significant effect on American commerce, rather, “some effect” may be sufficient. Compare Am. Rice, Inc. v. Ark. Rice Growers Coop. Ass’n, 701 F.2d 408, 414 n.8 (5th Cir. 1983) (joining the Ninth Circuit in requiring “some effect”), with Vanity Fair Mills v. T. Eaton Co., 234 F.2d 633, 642 (2d Cir. 1956) (requiring effect to be substantial); see also J. Thomas McCarthy, 5 McCarthy on Trademarks & Unfair Competition § 29:58 (4th ed. 2016) (discussing different tests).

Plaintiffs usually satisfy Timberlane’s first and second prongs by alleging that infringing goods, though sold initially in a foreign country, flowed into American domestic markets. See Reebok Int’l, Ltd. v. Marnatech Enters., Inc., 970 F.2d 552, 556 (9th Cir. 1992) (prongs one and two met when defendants “knew that their counterfeit shoes went back into the United States with regular frequency”); McBee v. Delica Co., Ltd., 417 F.3d 107, 125 (1st Cir. 2005) (“Quite commonly, plaintiffs ... meet their burden by presenting evidence that while the initial sales of infringing goods may occur in foreign countries, the goods subsequently tend to enter the United States in some way and in substantial quantities.”). Trader Joe’s does not allege that the Trader Joe’s-brand products Hallatt resells from his Canadian store trickle back into American commerce in a manner likely to confuse American consumers. This fact distinguishes Steele, where the Court applied the Lanham Act to a defendant’s foreign conduct (his sale of counterfeit watches in Mexico) largely because “spurious ‘Bulovas’ filtered through the Mexican border into this country.” 344 U.S. at 286, 73 S.Ct. 252. It also undermines Trader Joe’s’ argument that Steele controls the outcome here. But, as Trader Joe’s alternatively argues, whether infringing goods flow into the United States is not dispositive; plaintiffs may show “some effect” on American commerce in myriad ways. See, e.g., Am. Rice, 701 F.2d at 414-15 (applying the Lanham Act to defendant’s sale of rice in Saudi Arabia, though the goods did not flow back into United States markets, because defendant’s business was located in the United States).

Trader Joe’s alleges that Hallatt’s foreign conduct has “some effect” on American commerce because his activities harm its reputation and decrease the value of its American-held trademarks. It argues that Hallatt violates 15 U.S.C. § 1114(l)(a), the Lanham Act’s general prohibition on trademark infringement, by transporting and selling Trader Joe’s goods without using proper quality control measures or established product recall practices. By framing its allegation this way, Trader Joe’s seeks to circumvent the first sale doctrine, which establishes that “resale by the first purchaser of the original article under the producer’s trademark is generally neither trademark infringement nor unfair competition.” See Enesco Corp. v. Price/Costco Inc., 146 F.3d 1083, 1085 (9th Cir. 1998). The quality control theory of infringement is cognizable under the Lanham Act notwithstanding the first sale doctrine: “[distribution of a product that does not meet the trademark holder’s quality control standards may result in the devaluation of the mark by tarnishing its image.” Id. at 1087 (alteration in original) (internal quotation marks omitted) (recognizing viable claim for Costco’s repackaging of plaintiffs figurines, which caused chips and other damage); see also Adolph Coots Co. v. A. Genderson & Sons, Inc., 486 F.Supp. 131, 132-33 (D. Colo. 1980) (enjoining defendant from purchasing Coors beer in Colorado and reselling it in Maryland because defendant did not refrigerate beer during transport and the sale of skunked beer, an inferior product, harmed Coors’s reputation), cited favor ably in Enesco Corp., 146 F.3d at 1085 n.2, 1087.

According to Trader Joe’s, Hallatt’s poor quality control practices could impact American commerce if consumers who. purchase Trader Joe’s-brand products that have been transported to Canada become ill, and news of such illness travels across the border. Trader Joe’s alleges this may harm its reputation, reduce the value of its trademarks, and cause lost sales. Trader Joe’s argues its risk of harm is particularly high because Pirate Joe’s displays Trader Joe’s trademarks, which leads consumers to believe that it is an authorized Trader Joe’s retailer. There is nothing implausible about the concern that Trader Joe’s will suffer a tarnished reputation and resultant monetary harm in the United States from contaminated goods sold in Canada. Incidents of food-born illness regularly make international news, and Trader Joe’s alleges that it is aware of at least one customer who became sick after consuming food sold by Pirate Joe’s. Courts have held that reputational harm to an American plaintiff may constitute “some effect” on American commerce. Steele, 344 U.S. at 286, 73 S.Ct. 252 (applying Lanham Act extraterritorially where “competing goods could well reflect adversely on Bulova Watch Company’s trade reputation in markets cultivated by advertising here as well as abroad”); Gucci Am., Inc. v. Guess?, Inc., 790 F.Supp.2d 136, 143 (S.D.N.Y. 2011) (“It is well-settled that a showing of ... harm to plaintiffs goodwill in the United States is sufficient to demonstrate a ‘substantial effect on United States commerce.’ ” (quoting Steele, 344 U.S. at 286, 73 S.Ct. 252)); see also 15 U.S.C. §§ 1114, 1125 (making actionable conduct that is likely to cause future harm).

Hallatt’s alleged attempt to pass as an authorized Trader Joe’s retailer could similarly harm Trader Joe’s’ domestic reputation and diminish the value of its American-held marks. The complaint alleges that Hallatt sells Trader Joe’s goods at inflated prices, so customers who shop at Pirate Joe’s may come to mistakenly associate Trader Joe’s with overpriced goods. Trader Joe’s also alleges that Pirate Joe’s has inferior customer service, something Trader Joe’s believes reflects poorly on its brand. False endorsement gives rise to an actionable harm under the Lanham Act, see 15 U.S.C. § 1125(a)(1)(A), and Trader Joe’s contends it will suffer this harm in the United States because it draws international shoppers to its northern-Washington stores, and its trademarks stand to lose value in the United States. See McBee, 417 F.3d at 119 (“One can easily imagine a variety of harms to American commerce arising from wholly foreign activities by foreign defendants. There could be harm caused by false endorsements, passing off, or product disparagement, or confusion over sponsorship affecting American commerce and causing loss of American sales.”).

Finally, Trader Joe’s alleges that Hallatt engages in commercial activity in the United States as part of his infringing scheme. See Reebok, 970 F.2d at 554-55 (first two Timberlane factors satisfied in part because defendant “organized and directed the manufacture of counterfeit REEBOK shoes from the United States”). According to Trader Joe’s, Hallatt sources his inventory entirely from the United States: he purchases thousands of dollars of Trader Joe’s goods in the United States and resells them in his Canadian store. Hallatt’s operation may be assisted in part by his U.S. LPR status, 8 U.S.C. § 1101(a)(27)(A). See A.V. by Versace, Inc. v. Gianni Versace, S.p.A., 126 F.Supp.2d 328, 337 (S.D.N.Y. 2001) (applying Lanham Act to foreign conduct of permanent resident alien who “.has resided in and done business in the United States”); cf. Steele, 344 U.S. at 285, 73 S.Ct. 252 (explaining that the United States government may regulate American citizens’ foreign conduct). The complaint also alleged that Hal-latt began hiring third parties in Washington, presumably United States citizens, to purchase Trader Joe’s goods on his behalf when Trader Joe’s refused to serve him as a customer. This domestic economic activity weighs in favor of applying the Lanham Act to Hallatt’s conduct. See Ocean Garden, Inc. v. Marktrade Co., 953 F.2d 500, 503-04 (9th Cir. 1991) (applying Lanham Act to foreign conduct of California-based corporate defendant).

Hallatt’s domestic activity also distinguishes this case from Love, the case the district court found dispositive. 611 F.3d at 613. The plaintiff in Love (Mike Love, a former member of the Beach Boys) sued several British defendants after they distributed compact discs featuring Love’s trademark as cover art. Id. at 607. In Love, it was undisputed “that all relevant acts occurred abroad” (defendants designed, manufactured, and disseminated the infringing CDs entirely in Europe). Id. at 613. Love failed to show that the defendants’ conduct directly caused Love “monetary injury in the United States,” id. and we affirmed summary judgment in favor of defendants. Id. at 613-14. Here, unlike in Love, Hallatt executes a key part of his allegedly infringing scheme in the United States, so the causal showing found lacking in Love is satisfied. See McBee, 417 F.3d at 118 (“the domestic effect of the international activities may be of lesser importance and a lesser showing of domestic effects may be all that is needed” when defendant engages a scheme involving domestic and foreign conduct (discussing Steele)).

For these reasons, Trader Joe’s satisfied its burden under Timberlane prongs one and two, at least at this early stage of the proceeding.

b. Timberlane prong three

The third Timberlane prong considers international comity, see Hartford Fire Ins. Co. v. California, 509 U.S. 764, 797-98 & n.24, 113 S.Ct. 2891, 125 L.Ed.2d 612 (1993), and gives effect to the “rule that we construe statutes to avoid unreasonable interference with other nations’ sovereign authority where possible,” RJR Nabisco, 136 S.Ct. at 2106-07 & n.9. This prong involves weighing seven factors:

[ 1] the degree of conflict with foreign law or policy, [2] the nationality or allegiance of the parties and the locations or principal places of business of corporations, [3] the extent to which enforcement by either state can be expected to achieve compliance, [4] the relative significance of effects on the United States as compared with those elsewhere, [5] the extent to which there is explicit purpose to harm or affect American commerce, [6] the foreseeability of such effect, and [7] the relative ■ importance to the violations charged of conduct within the United States as compared with conduct abroad.

Star-Kist Foods, Inc. v. P.J. Rhodes & Co., 769 F.2d 1393, 1395 (9th Cir. 1985) (citing Timberlane). No one factor is dis-positive; each factor “is just one consideration to be balanced.” Wells Fargo, 556 F.2d at 428. Having considered these fac-. tors, we conclude that it is appropriate to apply the Lanham Act to Hallatt and Pirate Joe’s.

Degree of conflict with foreign laws. Courts typically find a conflict with foreign law or policy when there is an ongoing trademark dispute or other proceeding abroad. Compare Star-Kist, 769 F.2d at 1396 (finding conflict when defendant’s petition to cancel plaintiffs’ Philippine trademark registration was pending in the Philippine Patent Office), with Am. Rice, 701 F.2d at 415-16 (finding no conflict when defendant’s conduct was lawful under Saudi Arabian trademark law). In 2012, Trader Joe’s applied for, and was granted, Canadian recognition for its Trader Joe’s trademarks, but there is no pending or ongoing adversarial proceeding between Trader Joe’s and Hallatt in Canada. Nor is Trader Joe’s engaged in any proceeding (so far as we are aware) relating to its Canadian trademarks. This factor therefore weighs in favor of extraterritorial application.

Nationality of parties & location of businesses. This factor typically weighs in favor of extraterritoriality when both parties are United States citizens, or the parties are foreign citizens who operate domestic businesses. See Reebok, 970 F.2d at 556 (defendant operated his business from the United States); Ocean Garden, 953 F.2d at 504 (both parties were Californian corporations). Trader Joe’s is an American corporation with its principal place of business in Monrovia, California. Although Trader Joe’s operates no stores in Canada, its trademarks are well-known there. The complaint alleges that Transilvania Trading and Pirate Joe’s are (or were) Canadian entities, and that both have (or had) their principal places of business in Vancouver, Canada. As far as we can tell, Hallatt is a Canadian citizen, but because he maintains LPR status in the United States, he subjects himself to the laws of this country. Hallatt is also the driving force behind Pirate Joe’s. This is not, as Trader Joe’s argues, simply a dispute between an American plaintiff and an American defendant, because the complaint alleges that Hallatt is a Canadian citizen who domiciles in Vancouver. .But Hallatt’s admission that he holds LPR status edges this factor into Trader Joe’s’ column. See A.V. by Versace, 126 F.Supp.2d at 337 (applying Lanham Act to foreign conduct when defendant was' permanent resident alien, had “resided in and done business in the United States for over forty years,” and was the driving force behind the corporate defendant), at least at this stage in the proceedings.

Remedy & enforcement. The third factor requires us to consider the remedy sought and the extent to which the trial court will be able to enforce its order. See Ocean Garden, 953 F.2d at 504. Trader Joe’s seeks damages, including disgorgement to compensate for losses incurred as a result of the infringement, and a permanent injunction to prevent Hallatt from using Trader Joe’s trademarks, offering Trader Joe’s goods for resale, or mimicking Trader Joe’s trade dress. There is nothing to suggest that the district court would have difficulty enforcing a damages award against Hallatt: Hallatt is an LPR and Trader Joe’s argues he holds assets here. See Reebok, 970 F.2d at 557 (finding American court to be in a superior enforcement position vis-a-vis its Mexican counterparts because “[e]ach of the defendants, their principal places of business, and the vast majority of their assets are located in the United States”). And there is no doubt that the district court could stop Hallatt’s operation with a domestic injunction because Hallatt sources his goods entirely from the United States. See Ocean Garden, 953 F.2d at 504 (“The injunction would be effective against Marktrade because it is a U.S. corporation which ‘orchestrated [its] infringing activities’ ” here (alteration in original) (citation omitted)). The district court could likewise enforce an injunction against Hallatt’s foreign conduct if that conduct is found to violate the Lan-ham Act. See Steele, 344 U.S. at 289, 73 S.Ct. 252 (“[T]he District.Court in exercising its equity powers may command persons properly before it to cease or perform acts outside its territorial jurisdiction.”); Ramirez & Feraud Chili Co. v. Las Palmas Food Co., 146 F.Supp. 594 (S.D. Cal. 1956) (same), aff'd, 245 F.2d 874 (9th Cir. 1957) (per curiam). Neither the remedies sought nor the district court’s ability to enforce its orders weigh against applying the Lanham Act here.

Relative significance of effects. Trademark law has two goals: “[pjrotect property in the trademark and protect consumers from confusion.” J. Thomas McCarthy, 1 McCarthy on Trademarks & Unfair Competition § 2:1 (4th ed. 2013). Hallatt’s conduct primarily affects the value of Trader Joe’s’ trademarks in the United States because Trader Joe’s holds most of its intellectual property here. On the other hand, Canadian consumers are the most likely to be deceived by Hallatt’s conduct because he displays Trader Joe’s marks and sells Trader Joe’s goods only in Canada. Federal courts ordinarily do not have an interest in protecting foreign consumers from confusion. See McBee, 417 F.3d at 126. But Trader Joe’s also alleges that its trademarks are well-known in Canada, and that more than forty percent of the credit card transactions at its Bellingham, Washington store are with non-United States residents. Hallatt’s sale of Trader Joe’s goods in Canada has the potential to mislead these consumers, so this factor weighs in favor' of extraterritorial application.

Purpose to harm American commerce & foreseeability. The pleadings, taken in the light most favorable to Trader Joe’s, tend to support the conclusion that Hallatt intended to harm Trader Joe’s, or, at a minimum, that such harm was foreseeable. Hallatt chose to name his store “Pirate Joe’s,” suggesting that he knowingly treads on Trader Joe’s’ goodwill and pirates Trader Joe’s’ intellectual property. Indeed, one of Hallatt’s employees allegedly admitted that “we’re pirating Trader Joe’s, sort of.” The complaint further alleges that Trader Joe’s disapproved of Hal-latt’s conduct, and Hallatt began engaging in subterfuge (such as donning costumes) to purchase goods at Trader Joe’s stores without being identified. These factors therefore weigh in favor of extraterritorial application.

Relative importance of conduct within the United States as compared to conduct abroad. Trader Joe’s alleges, and Hallatt admits, that an essential part of his commercial venture takes place in the United States: Hallatt purchases Trader Joe’s products in Washington with the purpose of reselling them in Canada. That Hallatt uses American commerce streams to accomplish his allegedly infringing scheme weighs in favor of applying the Lanham Act to his conduct. But arguably the conduct most important to Hallatt’s operation happens in Canada: According to Trader Joe’s, Hallatt displays Trader Joe’s trademarks on his Canadian store in a way that confuses Canadian consumers, and Hallatt resells Trader Joe’s goods — including perishable goods not transported according to Trader Joe’s quality control standards — in Canada. Because most of Hallatt’s infringing activity occurs abroad, this factor weighs against extraterritorial application to some extent. See Reebok, 970 F.2d at 557 (reasoning that the factor would weigh against extraterritorial application when “actual consumer sales of [the infringing] products may have occurred only” abroad); Star-Kist, 769 F.2d at 1396 (“The effect on United States commerce from the alleged illegal use of the trademarks in trade between the Philippines and other foreign countries is relatively insignificant compared to the effect on Philippine commerce.”).

* * *

In sum, Timberlane’s three prongs favor extraterritorial application of the Lanham Act here. On prongs one and two, Trader Joe’s alleges a nexus between Hallatt’s foreign conduct and American commerce sufficient to state a Lanham Act claim: Hallatt’s conduct may cause Trader Joe’s reputational harm that could decrease the value of its American-held trademarks, and Hallatt operates in American commerce streams when he buys Trader Joe’s goods in Washington and hires locals to assist him. On prong three, the seven sub-factors we use to evaluate potential “interference with other nations’ sovereign authority,” RJR Nabisco, 136 S.Ct. at 2107 n.9, taken together, do not counsel against applying the Lanham Act here. We therefore conclude that the Lanham Act reaches Hallatt’s allegedly infringing activity, and we reverse the district court’s dismissal of Trader Joe’s’ four Lanham Act claims.

B. State Law Claims

Trader Joe’s next contends the district court erred when it granted Hallatt’s motion to dismiss its state trademark dilution and Washington Consumer Protection Act (CPA) claims. We agree with the district court that Trader Joe’s failed to state a claim under either statute, and we affirm its order dismissing those claims.

1. Trademark dilution

Washington’s trademark dilution statute largely mirrors the federal trademark dilution statute. It says:

The owner of a mark that is famous in' this state shall be entitled, subject to the principles of equity and upon such terms as the court deems reasonable, to an injunction against another person’s commercial use in this state of a mark, commencing after the mark becomes famous, which causes dilution of the distinctive quality of the mark, and to obtain such other relief as is provided in this section.

Wash. Rev. Code § 19.77.160(1). The district court concluded, and Hallatt maintains on appeal, that Trader Joe’s failed to state a claim for relief under this statute because Trader Joe’s did not allege that Hallatt used Trader Joe’s trademarks in Washington. Trader Joe’s counters that “Washington’s Antidilution Act requires dilution in Washington, not ‘diluting activity’ in Washington,” and “nothing in the statute suggests this protection is limited to only dilution caused by a defendant’s use of a mark within the state.” Hallatt has the better argument.

Washington’s dilution statute entitles courts to enjoin “commercial use in this state of a [famous] mark.” Wash. Rev. Code § 19.77.160(1) (emphasis added). The legislature’s choice to limit the Antidilution Act’s primary remedy to a defendant’s use of a famous mark in Washington reflects its intent that the law reach only infringing activities that occur in Washington. Wash. Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wash.2d 1, 43 P.3d 4, 9 (2002) (“[I]f the statute’s meaning is plain on its face, then the court must give effect to that plain meaning as an expression of legislative intent.”). We find no support for Trader Joe’s’ contrary contention that the Antidilution Act proscribes dilution that occurs abroad and creates a ripple effect in Washington, so we opt for a simpler, more textual reading of the statute: to state a claim for relief under Washington’s trademark dilution statute, a plaintiff must allege, inter alia, that the defendant used its mark in Washington. See Wash. Rev. Code § 19.77.160(l).

Trader Joe’s does not allege that Hallatt uses Trader Joe’s trademarks in Washington. To the contrary, Trader Joe’s alleges that Hallatt’s diluting activity— selling Trader Joe’s-branded goods, using Trader Joe’s trade dress to decorate his store, displaying the confusingly similar “Pirate Joe’s” mark on his storefront— takes place in Vancouver, British Columbia. The complaint does allege that Hallatt purchases Trader Joe’s goods in Washington to resell in his store, but this action (while possibly deceptive) is not “commercial use in this state of a mark ... which causes dilution.” Wash. Rev. Code § 19.77.160(1) (emphasis added); see also id. § 19.77.010(6) (defining dilution); cf. Sensient Techs., 613 F.3d at 762-63 (explaining the concept of “use” in federal trademark law). We agree with the district court that Trader Joe’s failed to state a plausible claim for relief under Washington’s trademark dilution statute.

2. Consumer Protection Act

The CPA declares unlawful “[unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” Wash. Rev. Code. § 19.86.020. The CPA’s purpose is “to protect the public and foster fair and honest competition.” Id. To state a claim under the CPA, a plaintiff must allege: “(1) [an] unfair or deceptive act or practice; (2) occurring in trade or commerce; (3) public interest impact; (4) injury to plaintiff in his or her business or property; [and] (5) causation.” Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wash.2d 778, 719 P.2d 531, 533 (1986); Brummett v. Wash. Lottery, 171 Wash. App. 664, 288 P.3d 48, 54 (2012). The parties contest only the second element.

The Washington legislature broadly defines the terms “trade” and “commerce” to include “the sale of assets or services, and any commerce directly or indirectly affecting the people of the state of Washington.” Hangman Ridge, 719 P.2d at 535; Wash. Rev. Code § 19.86.010(2). The Washington State Supreme Court recently considered the scope of this statute. See Thornell v. Seattle Servs. Bureau, 184 Wash.2d 793, 363 P.3d 587, 589 (2015). Thomell held that the CPA creates “a cause of action for a plaintiff residing outside of Washington to sue a Washington corporate defendant for allegedly deceptive acts.” Id. at 589, 592. The CPA likewise creates a cause of action for an out-of-state plaintiff against an out-of-state defendant for the allegedly deceptive acts of the defendant’s in-state agent. Id. at 592; see also Red Lion Hotels Franchising, Inc. v. MAK, LLC, 663 F.3d 1080, 1091 (9th Cir. 2011) (Washington’s Franchise Investment Protection Act creates cause of action for out-of-state plaintiff to sue Washington company). Thomell reasoned that a contrary holding would permit Washington companies to subvert CPA liability by targeting out-of-state consumers, and that such a result would thwart a primary purpose of the Act:

Washington businesses engaging in unfair and deceptive practices that indirectly affect others do not advance the purpose of fair and honest competition. Honest businesses could be placed at a competitive disadvantage competing against a business that generates revenue from unlawful acts that violate the statute.

363 P.3d at 591.

Thomell holds that the CPA applies broadly, but its holding does not encompass Hallatt’s conduct. Here, unlike in Thomell, none of the defendants are Washington residents: the complaint alleges that Hallatt is a Canadian citizen domiciled in Vancouver, Canada, and Pirate Joe’s has its principal place of business in Canada. Cf. Thornell, 363 P.3d at 589. Trader Joe’s is a California corporation, so to the extent Hallatt’s conduct diminishes the value of its trademarks, that harm is not a Washington-based harm. Given the status of the parties in this case, Thor-nell’s justification for applying the CPA extraterritorially — that it may be applied to combat deceptive practices of Washington businesses — would not be served by applying it here. See Red Lion, 663 F.3d at 1090 (noting that a Washington law would not apply extraterritorially when neither party is a Washington resident and the acts giving rise to the claim occurred outside of Washington). Nor did Trader Joe’s plausibly allege that Hallatt’s activity harms “the people of the state of Washington.” Cf. Hangman Ridge, 719 P.2d at 535. The primary theory of Lan-ham Act infringement in this case, the quality control theory, is based on harm to Trader Joe’s reputation, not consumer confusion. The deceptive practices claim centers on Hallatt’s attempt to pass-off his store as a Trader Joe’s store, but this deception allegedly occurs only in Canada and therefore harms only Canadian consumers. Finally, unlike in Thomell — where defendant’s competitive practices gave it a competitive advantage over honest Washington businesses — Trader Joe’s’ complaint did not allege that the existence of a low-quality, high-cost Trader Joe’s knockoff store in Vancouver puts honest Washington grocery stores at a competitive disadvantage. Cf. Thornell, 363 P.3d at 591. The district court properly dismissed this claim.

CONCLUSION

We conclude that the Lanham Act applies to Hallatt’s allegedly infringing conduct, but that the district court properly dismissed Trader Joe’s’ state law claims. We therefore REVERSE dismissal of the federal claims, AFFIRM dismissal of the state claims, and REMAND for further proceedings. The district court’s judgment is REVERSED in part, AFFIRMED in part, and REMANDED. Each party shall bear its own costs.

      . We take these facts from the complaint and its exhibits. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (“When reviewing a motion to dismiss we 'consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice.’ ” (quoting Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007) (per curiam))).

      . Bellingham, Washington is located about twenty-five miles from the Canadian border and about sixty miles from Vancouver, British Columbia.

      . "We review de novo a district court's dismissal for lack of subject matter jurisdiction, Fed. R. Civ. P. 12(b)(1), and a district court’s dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6).” Naffe v. Frey, 789 F.3d 1030, 1035 (9th Cir. 2015). We review for an abuse of discretion a district court’s denial of a motion for reconsideration, see Sch. Dist. No. 1J, Multnomah Cty. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993), but review de novo any legal conclusions on which the denial was based, see United States v. Hintcson, 585 F.3d 1247, 1261-62 (9th Cir. 2009) (en banc).

      . La Quinta did not discuss several Ninth Circuit cases that treated the Lanham Act’s "use in commerce” requirement as “jurisdictional,” but that does not lessen its thrust. See, e.g., Reebok Int'l, Ltd. v. Marnatech Enters., Inc., 970 F.2d 552, 554 (9th Cir. 1992); but see Love v. Associated Newspapers, Ltd., 611 F.3d 601, 612 (9th Cir. 2010) (post-Arbaugh
        case treating extraterritorial question as a merits question). As explained infra, the Supreme Court plainly stated in Monison and Arbaugh (which postdate Reebolc) that whether a statute reaches foreign conduct is a merits question, not a question of jurisdiction. See Morrison v. Nat’l Aust. Bank, Ltd., 561 U.S. 247, 254, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010) (statute’s extraterritorial reach is a merits question); Arbaugh, 546 U.S. at 512-13, 126 S.Ct. 1235 (criticizing EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991), in which the Court treated the extraterritorial scope of Title VII as an issue of subject-matter jurisdiction). These cases did not expressly consider the Lanham Act, but we see no principled way to exclude the Lanham Act from their holdings, particularly in light of La Quinta. Our prior characterization of the Lanham Act’s reach as "jurisdictional” is therefore "irreconcilable with the reasoning or theory” of this higher and more recent authority. Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc); see also United States v. Lindsey, 634 F.3d 541, 548 (9th Cir. 2011) ("In order to be controlling on the panel, a higher court's decision 'need not be identical' to our precedent, but must instead 'undercut the theory or reasoning underlying the prior circuit precedent.... ’” (citation omitted)); id. at 550 (Miller "-instructs us to focus on the reasoning and analysis in support of a holding, rather than the holding alone.”).

      . Trader Joe’s argues that Timberlane does not apply here because Hallatt executed part of his infringing scheme in the United States. We have applied Timberlane in cases where some of the defendant's conduct was domestic, so long as the entire scheme culminated in infringing activity abroad. See, e.g., Reebok, 970 F.2d at 557 (applying Timberlane where "Reebok’s trademark infringement claim [was] based both on actions that occurred in the United States as well as in Mexico”); Wells Fargo, 556 F.2d at 429 ("We note, however, that, when faced with both Mexican and United States activities of an American citizen that were part of one infringing scheme, this court adopted an analysis which at least in part was premised on the need to deal with the extraterritorial nature of defendant’s activities.”). We follow that same tack here.

      . Timberlane refers to defendant’s impact on "American foreign” commerce, Love, 611 F.3d at 613, but, as these cases show, we regularly apply the Lanham Act to foreign conduct that impacts domestic commerce because infringing goods flow into American domestic commerce streams. See, e.g., Steele, 344 U.S. at 286, 73 S.Ct. 252.

      . The amended complaint alleges that Hallatt stopped selling perishable food pending resolution of this case, but neither party argues that this case is moot, and voluntary cessation of allegedly infringing activities does not moot an appeal. See Already, LLC v. Nike, Inc., - U.S. -, 133 S.Ct. 721, 727, 184 L.Ed.2d 553 (2013) (describing mootness doctrine); Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d 1125, 1130 n.3 (9th Cir. 2005) (same).

      . See, e.g., Anita Balakrishnan, Analysts negative on Chipotle after CDC launches new E.coli investigation, CNBC (Dfec. 22, 2015, 10:28 a.m.), http://www.cnbc.com/2015/12/21/cdc-investigating-another-outbreak-of-different-e-coli-strain-at-chipotle.html ("Shares of Chipo-tle Mexican Grill dropped more than 4 percent” after news of CDC investigation).

      . Love also involved a summary judgment motion; we dismissed plaintiffs Lanham Act claim because Love's evidence did not raise a triable issue of fact about whether CD sales in England impacted attendance at Love’s concerts in the United States. 611 F.3d at 613. Here, we consider an appeal following a motion to dismiss, and so we accept — without requiring Trader Joe’s to prove — that the domestic components of Hallatt’s operation impact American commerce. See Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001) (on a Rule 12(b)(6) motion, we accept as true the facts alleged in the complaint).

      . The complaint's allegation that Hallatt domiciles in Vancouver is inconsistent with Hallatt's claim to LPR status. Compare U.S. Citizenship & Immigration Servs., Maintaining Permanent Residence, https://www.uscis. gov/green-card/after-green-card-granted/ maintaining-permanent-residence (an LPR intentionally abandons his or her status by moving “to another country, intending to live there permanently”) (last visited Aug. 19, 2016), with Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir. 1974) ("A change of domicile may be effected only by a combination of two elements: (a) taking up residence in a different domicile with (b) the intention to remain there.”). Neither party reconciled this disparity in their briefing or at oral argument.

      . Trader Joe’s urges us to analyze whether Washington’s dilution statute applies to Hal-latt's conduct as a choice-of-law issue. But this case is not about whether the district court could have applied Canadian law to Hallatt's infringing conduct; it is about whether Trader Joe's stated a claim for violation of a Washington law. See Haberman v. Wash. Pub. Power Supply Sys., 109 Wash.2d 107, 744 P.2d 1032, 1053 (1987) (distinguishing "the choice of law to be applied in this case” from "whether [a Washington statute] can be applied extraterritorially to regulate out-of-state transactions”).

      . Although Hallatt admitted he is an LPR, Trader Joe’s did not allege that he lives in Washington State.


author: NOONAN, Circuit Judge:

text:
    James FENSKE, Petitioner, v. SERVICE EMPLOYEES INTERNATIONAL, INC.; Insurance Company of the State of Pennsylvania; Director, Office of Workers’ Compensation Program, Respondents.
    No. 14-71512
    United States Court of Appeals, Ninth Circuit.
    Submitted May 12, 2016  San Francisco, California
    Filed August 26, 2016

      Joshua T. Gillelan, II, Longshore Claimants’ National Law Center, Washington, D.C.; Eric A. Dupree, Dupree Law, APLC, Coronado, California; for Petitioner.
    Kenneth M. Simon, Flicker, Garelick & Associates, LLP, New York, New York, for Respondents Service Employees International, Inc., and Insurance Company of the State of Pennsylvania.
    M. Patricia Smith, Solicitor of Labor; Rae Ellen James, Associate Solicitor; Mark Reinhalter, Counsel for Longshore; Gary K. Stearman, Counsel for Appellate Litigation; Matthew W. Boyle, Attorney; Office of the Solicitor, United States Department of Labor, Washington, D.C.; for Respondent Director, Office of Workers’ Compensation Programs.
    Before: JOHN T. NOONAN, KIM McLANE WARDLAW, and RICHARD A. PAEZ, Circuit Judges.

       The panel unanimously concludes this case is suitable for decision without oral argument. ses Fed. R. App. P. 34(a)(2).

   OPINION

NOONAN, Circuit Judge:

James Fenske petitions for review of a decision of the Benefits Review Board of the Department of Labor (the “Board”) holding that Fenske could not receive concurrent payments for total disability and permanent partial disability under the Longshore and Harbor Workers’ Compensation Act (the “Act”), 33 U.S.C. §§ 901-50. While we generally disallow concurrent awards, Fenske seeks relief under our holding in Stevedoring Servs. of Am. v. Price, 382 F.3d 878 (9th Cir. 2004) (as amended) (“Price”), which allows concurrent awards for certain time-delayed injuries. We deny Fenske’s petition for review of the Board’s decision.

FACTS AND PROCEEDINGS

James Fenske was a truck driver for a United States government contractor in Iraq during the Iraq War. On October 9, 2005, a suicide bomber in a vehicle collided head-on with the truck Fenske was driving. The bomb did not explode, but Fenske suffered severe injuries to his lower back from the collision. This accident ended Fenske’s tour in Iraq.

Fenske sought compensation under the Act for his injuries. An Administrative Law Judge (“ALJ”) awarded Fenske temporary total disability benefits from October 9, 2005 until July 27, 2008, followed by permanent partial disability benefits. The ALJ later granted Fenske’s petition to modify the award, granting him permanent total disability benefits, rather than partial disability benefits, from July 28, 2008 onwards.

During the proceedings, Fenske also presented an audiogram from June 4, 2009, which showed hearing loss in both ears. The parties stipulated to a 9.7% permanent loss of hearing and the ALJ found that the hearing loss was caused by Fenske’s work in Iraq. The ALJ held that under the Board’s precedent, concurrent payments for the hearing loss were unavailable because Fenske was already receiving compensation for total disability. See B.S. (Stinson) v. Bath Iron Works Corp., 41 BRBS 97 (2007); Johnson v. Del Monte Tropical Fruit Co., 45 BRBS 27 (2011).

Fenske appealed to the Board, which upheld the ALJ’s decision denying concurrent payments. Fenske now petitions for review of the Board’s decision.

STANDARD OF REVIEW

We review the Board’s decisions on questions of law de novo. Price, 382 F.3d at 883. The Board reviews the ALJ’s factual findings for substantial evidence and we review the Board to ensure it applied that standard. Todd Shipyards Corp. v. Dir., OWCP, 792 F.2d 1489, 1491 (9th Cir. 1986).

We review the litigation position of the Director of the Office of Workers’ Compensation Programs with some deference under Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944), and United States v. Mead Corp., 533 U.S. 218, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001). Price v. Stevedoring Servs. of Am., 697 F.3d 820, 824-33 (9th Cir. 2012) (en banc) (“Price II”). The degree of deference we provide the government depends on “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Skidmore, 323 U.S. at 140, 65 S.Ct. 161.

DISCUSSION

I

Fenske seeks concurrent compensation for a “scheduled” injury (hearing loss) under 33 U.S.C. § 908(c)(13) and total disability caused by his back injury. Under the Act, a worker suffering permanent or temporary total disability is entitled to two-thirds of his or her weekly wage during the continuance of the disability. Id. § 908(a), (b). Similarly, a worker suffering a permanent partial disability under 33 U.S.C. § 908(c)(21) is entitled to two-thirds of his or her lost wage-earning capacity for the continuance of the disability.

“Scheduled” losses, in contrast, are a set of common statutorily-enumerated permanent partial disabilities, such as hearing loss, that are compensated at two-thirds of a worker’s weekly wages for a number of weeks prescribed by statute. See id. § 908(c)(1) — (20); see, e.g., id. § 908(c)(13)(B) (“Compensation for loss of hearing in both ears, two-hundred weeks.”). The length of compensation is proportionally shorter if the loss is not complete: a 25% loss of hearing requires only fifty rather than two-hundred weeks of payment. See id. § 908(c)(19).

We have generally denied concurrent payments involving total disability because the Act “invokes wage-compensation principles rather than tort principles.” Rupert v. Todd Shipyards Corp., 239 F.2d 273, 274-77 (9th Cir. 1956) (per curiam) (denying concurrent payments for permanent total disability and facial disfigurement, a scheduled loss under § 908(e)(20)). While tort principles seek to compensate a plaintiff for every injury wrongfully suffered, see Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 306-07, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986); Dan B. Dobbs, et al., The Law of Torts § 10 (2d ed. 2016), wage-compensation principles repay workers for lost earning capacity, not the injury itself. Once a worker has lost all earning capacity through total disability, an additional award would constitute “double dipping,” that is, the worker would be compensated “for a loss of earning capacity that is accounted for in another award.” Price, 382 F.3d at 885.

These principles and the rule against double dipping apply to scheduled losses. Rupert, 239 F.2d at 275-76. The D.C. Circuit has held that scheduled losses are “based upon a damages concept rather than loss of wage-earning capacity” because they are paid regardless of an actual loss in earning capacity. See Henry v. George Hyman Constr. Co., 749 F.2d 65, 73 (D.C. Cir. 1984). However, a scheduled loss disability only exists under the Act if there is an “incapacity ...' to earn the wages which the employee was [previously] receiving.” 33 U.S.C. § 902(10). Rather than changing the Act’s underlying wage-compensation principles, scheduled losses exist to “ameliorate an otherwise intolerable administrative burden by providing a certain and easily applied method of determining the effect on wage earning capacity of typical and classifiable injuries.” Rupert, 239 F.2d at 275-76; see also Korineck v. Gen. Dynamics Corp. Elec. Boat Div., 835 F.2d 42, 43-44 (2d Cir. 1987).

II

While accepting the above principles, Fenske argues that he should be paid a concurrent award based on our holding in Price. There, the petitioner suffered a permanent partial disability under § 908(c)(21) and was awarded two-thirds of his lost earning potential. Price, 382 F.3d at 882. Years later, Price suffered a second injury causing permanent total disability. Id. We held that under those circumstances, concurrent payments were warranted because the later total disability award was based on a wage that had already been decreased by the earlier partial disability. Id. at 889; see also Hastings v. Earth Satellite Corp., 628 F.2d 85, 91 (D.C. Cir. 1980) (allowing concurrent payments under similar circumstances).

Fenske seeks to extend Price’s, holding beyond permanent partial disabilities under § 908(c)(21) to scheduled losses. We need not address this issue: a prerequisite for applying- the Price theory is that the partial disability preceded the total disability. Because Fenske’s hearing loss did not precede his back injury, Price does not apply.

While Fenske was exposed to excessive noise throughout his employment in Iraq, the only evidence of his hearing loss was an audiogram obtained on June 4, 2009, four years after his employment ended. In Bath Iron Works Corp. v. Director, Office of Workers’ Compensation Programs, the Supreme Court held that hearing loss is not a latent disease involving a delayed onset of disability. 506 U.S. 153, 162, 165, 113 S.Ct. 692, 121 L.Ed.2d 619 (1993) (“Bath Iron Works”); see also 33 U.S.C. § 910(i). Instead, hearing loss “occurs simultaneously with the exposure to excessive noise” and “the injury is complete when the exposure ceases.” Bath Iron Works, 506 U.S. at 165, 113 S.Ct. 692. As a result, the Court held that when a post-retirement audiogram shows hearing loss, “the date of last exposure — the date upon which the injury is complete — is the relevant time of injury for calculating a retiree’s benefits for occupational hearing loss.” Id. Under this rule, Fenske’s date of last exposure was the same day Fenske suffered his back injury and was forced to leave Iraq.

Fenske argues that we should formulate an alternate rule based on the Supreme Court’s statement in Bath Iron Works that a hearing loss injury “occurs simultaneously with the exposure to excessive noise.” Id. Although not addressed by Bath Iron Works directly, Fenske’s argument is simply inconsistent with the bright-line date-of-last-exposure rule adopted by the Court. That rule “aids in the goal of avoiding unnecessary administrative difficulties and delays” by not setting the date of disability on the exact date of injury. Ramey v. Stevedoring Servs. of Am., 134 F.3d 954, 962 (9th Cir. 1998) (citations and internal quotation marks omitted). As an injury that progresses with exposure over time, determining the date and extent of hearing loss before the date of last exposure would likely delay proceedings and require more speculation than fact.

Additionally, we have previously rejected attempts to set the date of hearing loss disability earlier than the date of last exposure when the proof of earlier hearing loss was anything less than a reliable audio-gram. In Ramey, a worker obtained an audiogram during his employment and two other audiograms after he retired, all of which showed hearing loss. Id. at 960-62. The ALJ found one of the post-retirement audiograms to be the most reliable and therefore “determinative.” Id. We held that “the date of last exposure prior to the determinative [post-retirement] audio-gram” was the relevant date for disability benefits and rejected the date set by the less-reliable audiogram obtained during employment. Id.; see also Stevedoring Servs. of Am. v. Dir., OWCP, 297 F.3d 797, 803-05 (9th Cir. 2002) (holding that a reliable audiogram obtained during employment can be one of multiple determinative audiograms). Here, Fenske does not even provide unreliable evidence of hearing loss before his date of last exposure to excessive noise.

In a case where the only evidence of hearing loss is a post-retirement audio-gram, we hold that the Bath Iron Works rule applies when determining the timing of disabilities under Price. Fenske’s last day of exposure to excessive noise was the same day as his back injury and Price does not apply.

III

Fenske requests that if the full measure of concurrent payments are not available, he should at least be provided a decreased award capped at two-thirds of his wage under ITO Corp. of Baltimore v. Green, 185 F.3d 239 (4th Cir. 1999). There, the Fourth Circuit held that the total of multiple awards should have a ceiling of two-thirds of a worker’s average weekly wage — the amount awarded to a worker with total disability. Id. at 242-43. This relief would benefit Fenske because his total disability award was capped by § 906(b) at 200 times the national average weekly wage, an amount that was less than two-thirds of his average weekly wage for multiple years. The § 906(b) cap does not limit the total amount paid for multiple awards. Price, 382 F.3d at 889-92.

This argument provides no additional rationale for allowing concurrent payments. We decline to provide the requested relief.

CONCLUSION

Under wage-compensation principles, concurrent payments for total disability and scheduled permanent partial disability are generally unavailable. The Price exception does not apply because Fenske’s hearing loss did not precede his back injury. We DENY Fenske’s petition for review.

      . We have never directly held that the double dipping prohibition applies to temporary total disability under § 908(b). Because Fenske’s argument is premised entirely on our holding in Price, described below, we need not reach the issue here. See Cruz v. Int’l Collection Corp., 673 F.3d 991, 998 (9th Cir. 2012) (" 'We review only issues which are argued specifically and distinctly in a party's opening brief.’ " (citation omitted)).


author: CLIFTON, Circuit Judge:

text:
    Brian C. MULLIGAN, an individual, Plaintiff-Appellant, v. James NICHOLS, an individual; John Miller, an individual; The City of Los Angeles, an entity; Tyler Izen, an individual; Los Angeles Police Protective League, a corporation, Defendants-Appellees. Brian C. Mulligan, an individual, Plaintiff-Appellant, v. Eric Rose, an individual, Defendant-Appellee.
    No. 14-55278, No. 14-55763
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted March 7, 2016 Pasadena, California
    Filed August 29, 2016

      Jennifer Mira Hashmall (argued) and Louis R. Miller, Miller Barondess LLP, Los Angeles, California, for Plaintiff-Appellant.
    Jules S. Zeman (argued), McKenna Long & Aldridge LLP, Los Angeles, California, for DefendanL-Appellee James Nichols.

      Blithe Smith Bock (argued), Deputy City Attorney; Amy Jo Field, Assistant City Attorney; Michael N. Feuer, City Attorney; Office of the Los Angeles City Attorney, Los Angeles, California; for De- ’ fendants-Appellees City of Los Angeles and John Miller.
    Alexander H. Cote (argued), Amos A. Lowder, Angela M. Machala, and David C. Scheper, Scheper Kim & Harris LLP, Los Angeles, California, for Defendants-Appel-lees Los Angeles Police Protective League, Tyler Izen, and Eric Rose.-
    Before: RICHARD R. CLIFTON and SANDRA S. IKUTA, Circuit Judges and FREDERIC BLOCK, Senior District ' Judge.

       The Honorable Frederic Block, Senior U.S. District Judge for the Eastern District of New York, sitting by designation.

   OPINION

CLIFTON, Circuit Judge:

The First Amendment of the Constitution protects citizens from attempts by government officials to chill their speech. One question presented by this case is whether that same constitutional guarantee also requires those officials to remain silent when accused of misconduct, lest they risk liability for unlawful retaliation. We conclude that it does not.

Plaintiff Brian Mulligan was injured in an altercation with two Los Angeles Police Department (LAPD) officers. Mulligan filed an administrative claim against the City of Los Angeles, alleging that the officers had acted unlawfully. The police officers’ union, the Los Angeles Police Protective League (LAPPL), allegedly with assistance from City officials, responded by accusing Mulligan of being a drug abuser and of having acted aggressively toward the officers. Because he was a prominent business executive connected with the entertainment industry, the episode attracted publicity, and Mulligan lost his job.

Mulligan brought 42 U.S.C. § 1983 and state-law claims against the City, LAPD officers James Nichols and John Miller, the LAPPL, and LAPPL officials Tyler Izen and Eric Rose. He presented claims based both on his initial interactions with the LAPD Officers and on the subsequent publicity, which Mulligan contended constituted unlawful retaliation against him for exercising his First Amendment rights.

The district court granted summary judgment in favor of Defendants on the unlawful retaliation claim and on Mulligan’s claim that the LAPD officers acted negligently. Mulligan’s other claims proceeded to trial, and the jury found in favor of Defendants on all issues that were before it. Judgment was entered for Defendants. Mulligan appeals on . several grounds. We affirm.

I. Background

The events behind this lawsuit began on May 15, 2012. The parties intensely dispute what happened that night, but they agree that LAPD officers Nichols and Miller first encountered Mulligan near the entrance to Occidental College in the Eagle Rock area of Los Angeles. The officers responded to 911 calls reporting that a man fitting Mulligan’s description was acting erratically. After taking Mulligan back to his car in a nearby street, the officers transported and checked Mulligan into a motel.

Mulligan left the motel later that night. On the streets near the motel, he once again encountered Officers Nichols and Miller. The parties’ accounts as to what happened next were very different. Mulligan testified that he tried to flee from the officers as soon as he caught sight of them. The officers followed, chasing him and blocking his escape. They then hit him in the face with a baton, jabbed his back, and slammed his face into the asphalt.

The officers testified, in contrast, that they found Mulligan running down a street near the motel while screaming and attempting to open locked cars. They then pursued Mulligan, who continued fleeing despite their repeated calls for him to stop. Mulligan then began charging at the officers, forcing Miller to use his baton to subdue him. With the help of a third officer, they managed to handcuff Mulligan and called an ambulance to take him to a hospital.

The incident and Mulligan’s subsequent administrative claim against the City attracted significant media attention. Mulligan was at the time an executive with Deutsche Bank and had formerly been chairman of Fox Television and co-chairman of Universal Pictures. The officers’ police report was leaked to news outlets, which published stories that included.the allegation that Mulligan was under the influence of drugs at the time of the incident. The media pressure intensified on October 15, 2012, when the LAPPL issued a press release accusing Mulligan of being a frequent user of bath salts. The press release included a leaked tape of a conversation between Mulligan and an officer of the Glendale Police Department that took place on May 13, two days before the Eagle Rock incident. In the conversation, Mulligan admitted to having used bath salts approximately twenty times. Because of the press release and associated negative media coverage, Mulligan lost his job at Deutsche Bank.

Mulligan filed his complaint in federal district court against the City, Officers Nichols and Miller, the LAPPL, and Tyler Izen, the LAPPL’s president, in February 2013. He alleged that the City, LAPPL, and Izen had retaliated against him for exercising his First Amendment right to file an administrative claim against the City. He also alleged excessive force claims under both Section 1983 and California law, as well as state-law assault and battery, false imprisonment, police negligence, and negligent supervision claims against the officers and the City. A separate complaint alleging a substantively identical retaliation claim against Eric Rose, the LAPPL’s publicist, was filed in November 2013.

Defendants filed motions for summary judgment. The district court granted summary judgment to Defendants on the retaliation claim, concluding that Mulligan had not demonstrated the existence of retaliatory intent. The district court also granted summary judgment for Defendants on the false imprisonment and police negligence claims. Summary judgment was denied on the negligent supervision, excessive force, and assault and battery claims.

The court bifurcated the trial, such that the first phase would cover the excessive force claim, while the second phase would cover the negligent supervision claim and damages. As noted above, the jury found in favor of Defendants in the first phase of the trial, which the district court concluded made the second phase unnecessary.

Mulligan presents several arguments on appeal. First, he contests the district court’s grant of summary judgment in favor of Defendants on his First Amendment retaliation claim. Second, he argues that the district court erred in granting summary judgment to Defendants on his claim that the officers’ use of force against him was negligent. Third, he challenges two of the district court’s evidentiary rulings during the excessive force phase of the trial. Finally, he contends that the district court erred in not proceeding to the second phase of the trial, involving his negligent supervision claim.

. II. First Amendment Retaliation Claim

Mulligan alleges that the City, LAPPL, Izen, and Rose retaliated against him for the exercise of his First Amendment rights, in violation of 42 U.S.C. § 1983. Mulligan contends that the accusations by the LAPPL that he was a regular user of bath salts, along with the accompanying media leaks of the police report of the incident and the tape of his conversation at the Glendale Police Department, in which he admitted to his past bath salts use, constituted a smear campaign meant to deter him from proceeding with his legal claim against the officers and City. He also alleges that the City actively participated in that campaign, making the LAPPL and its officials joint state actors. We conclude that the facts alleged by Mulligan do not give rise to a cognizable claim of First Amendment retaliation.

To state a claim for First Amendment retaliation against a government official, a plaintiff must demonstrate that “(1) he engaged in constitutionally protected activity; (2) as a result, he was subjected to adverse action by the defendant that would chill a person of ordinary firmness from continuing to engage in the protected activity; and (3) there was a substantial causal relationship between the constitutionally protected activity and the adverse action.” Blair v. Bethel Sch. Dist., 608 F.3d 540, 543 (9th Cir. 2010). It is uncontested that Mulligan’s decision to file a claim against the City is worthy of constitutional protection.

Ordinarily, the adverse retaliatory actions complained of by plaintiffs are “ ‘exercisefs] of governmental power’ that are ‘regulatory, proscriptive, or compulsory in nature’ and have the effect of punishing someone for his or her speech.” Id: at 544 (alteration in original) (quoting Laird v. Tatum, 408 U.S. 1, 11, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972)). But that is not the situation here. Instead, the essence of Mulligan’s claim is that the City and LAPPL chilled his right to speak freely by engaging in speech of their own that significantly damaged his reputation and ultimately caused him to lose his job.

Retaliation claims involving government speech warrant a cautious approach by courts. Restricting the ability of government decisionmakers to engage in speech risks interfering with their ability to effectively perform their duties. It also ignores the competing First Amendment rights of the officials themselves. The First Amendment is intended to “preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.” McCullen v. Coakley, - U.S. -, 134 S.Ct. 2518, 2529, 189 L.Ed.2d 502 (2014) (quoting FCC v. League of Women Voters of Cal., 468 U.S. 364, 377, 104 S.Ct. 3106, 82 L.Ed.2d 278 (1984)). That marketplace of ideas is undermined if public officials are prevented from responding to speech of citizens with speech of their own. See Bond v. Floyd, 385 U.S. 116, 136, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966) (“The interest of the public in hearing all sides of a public issue is hardly advanced by extending more protection to citizen-critics than to legislators.”).

In accordance with these principles, we have set a high bar when analyzing whether speech by government officials is sufficiently adverse to give rise to a First Amendment retaliation claim. In Gini v. Las Vegas Metropolitan Police Department, 40 F.3d 1041, 1043-44 (9th Cir. 1994), the plaintiff alleged that she had lost her federal job as a result of allegedly defamatory statements made by a city police officer to her federal superiors following her filing of an Internal Affairs complaint. We affirmed the dismissal of her retaliation claim against the city. Id. at 1045. We noted that an act of defamation by government officials was insufficient to create a right to a remedy under the First Amendment in the absence of “state action affecting [a plaintiffs] rights, benefits, relationship or status with the state.” Id. Similarly, in Nunez v. City of Los Angeles, 147 F.3d 867, 875 (9th Cir. 1998), which involved a claim by a police officer against his government employer, we held that “[m]ere threats and harsh words” are not ordinarily sufficient to constitute an adverse employment action for purposes of a First Amendment claim. As we stated in Nunez, “[i]t would be the height of irony, indeed, if mere speech, in response to speech, could constitute a First Amendment violation.” Id.

As was the case in Gini and Nunez, the accusations and media leaks by the LAPPL and its leadership are not enough to demonstrate a constitutional violation. The Defendants in this case did not “make any decision or take any state action affecting [Mulligan’s] rights, benefits, relationship or status with the state.” Gini, 40 F.3d at 1045. Nor can Mulligan show “the loss of ‘a valuable governmental benefit or privilege.’ ” Nunez, 147 F.3d at 875 (quoting Hyland v. Wonder, 972 F.2d 1129, 1136 (9th Cir. 1992)). Although Mulligan’s reputation was undoubtedly damaged by the increased media attention, which eventually resulted in the loss of his job, such reputational harm “is not actionable under § 1983 unless it is accompanied by ‘some more tangible interests.’ ” Gini, 40 F.3d at 1045 (quoting Patton v. Cty. of Kings, 857 F.2d 1379, 1381 (9th Cir. 1988)).

Our decision in Mendocino Environmental Center v. Mendocino County, 192 F.3d 1283 (9th Cir. 1999), is not to the contrary. There, we concluded that evidence that police officers had made false accusations of criminal activity against members of an environmental activist group was sufficient to justify a First Amendment claim by the group’s members. Id. at 1302-03. The accusations in Mendocino were made in the context of a police investigation and contributed to arrests and search warrants aimed at the activists. Id. at 1289-91. That was speech that did more than simply damage the plaintiffs’ reputation, it also intimated that punishment would imminently follow.

The approach we take here and have taken in the past is consistent with the views of other circuits. The circuit courts that have considered the issue have required plaintiffs alleging government retaliation that takes the form of speech to meet a high threshold. For example, the Fourth Circuit has held that in situations “where a public official’s alleged retaliation is in the nature of speech,” a citizen’s First Amendment rights are not violated “in the absence of a threat, coercion, or intimidation intimating that punishment, sanction, or adverse regulatory action will imminently follow.” Suarez Corp. Indus, v.. McGraw, 202 F.3d 676, 687 (4th Cir. 2000). Other circuits have adopted similar tests. See, e.g. Goldstein v. Galvin, 719 F.3d 16, 30-31 (1st Cir. 2013); Hutchins v. Clarke, 661 F.3d 947, 955-57 (7th Cir. 2011); X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 68-71 (2d Cir. 1999).

Mulligan argues that the emphasis we and other courts have placed on defendants’ free speech rights is mistaken because, in his view, public officials do not possess any First Amendment rights worthy of protection. We disagree. That viewpoint would cripple the ability of state actors to play a part in public discourse. It is well established that public employees and officials retain rights to free speech. See, e.g. Garcetti v. Ceballos, 547 U.S. 410, 417, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) (“[Pjublic employees do not surrender all their First Amendment rights by reason of their employment.”); Blair, 608 F.3d at 545 (“[W]e assume all of the Board members have a protected interest in speaking out and voting their conscience on the important issues they confront.” (emphasis in original)).

Mulligan also directs our attention to the decision of the Sixth Circuit in Bloch v. Ribar, 156 F.3d 673 (6th Cir. 1998). In that case, the court held .that a rape victim who had criticized the police investigation of her rape had a cognizable retaliation claim after the county sheriff responded to her criticisms by releasing “highly personal and extremely humiliating details” of the rape at a public press conference. Id. at 676. We need not decide now whether we agree that the First Amendment would permit a retaliation claim based on the disclosure of deeply private personal details like those at issue in Bloch, because Mulligan’s claim does not remotely rise to the same level. Although his taped admission of previous bath salts use was undoubtedly embarrassing, statements made as part of a conversation voluntarily entered into with a police officer, without any promise of confidentiality, are not of the same degree of constitutional magnitude as the retaliatory conduct in Bloch, which the Sixth Circuit concluded implicated the plaintiffs fundamental privacy rights. Id. at 686.

III. Police Negligence Claim

Mulligan next contends that the district court erred in granting summary judgment to Defendants on his state-law claim that Officers Nichols and Miller acted negligently in their use of force against him. In light of the jury verdict in favor of the officers at trial, Mulligan does not argue that the officers’ use of force was itself negligent, but he asserts that the officers’ conduct prior to the specific acts that involved force violated California law. We review the district court’s grant of summary judgment de novo. Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1155 (9th Cir. 2010).

Under California law, negligence liability “can arise if the tactical conduct and decisions leading up to the use of deadly force [by law enforcement] show, as part of the totality of circumstances, that the use of deadly force was unreasonable.” Hayes v. Cty. of San Diego, 57 Cal.4th 622, 160 Cal.Rptr.3d 684, 305 P.3d 252, 254 (2013). Thus, negligence claims under California law encompass a broader spectrum of conduct than excessive force claims under the Fourth Amendment. Cf. Billington v. Smith, 292 F.3d 1177, 1190 (9th Cir. 2002) (“[E]ven if an officer negligently -provokes a violent response, that negligent act will not transform an otherwise reasonable subsequent use of force into a Fourth Amendment violation.” (emphasis in original)).

Mulligan asserts that the officers’ decision to take him to the motel against his will was sufficient to create a triable issue of material fact as to whether the officers’ pre-force conduct was negligent. We disagree. Even “viewing the evidence in the light most favorable” to Mulligan for purposes of summary judgment, Hawn, 615 F.3d at 1155, Mulligan has failed to demonstrate a sufficiently close causal link between the officers’ decision to take him to the motel and their eventual use of force. In Hayes, the California Supreme Court held that the pre-deadly-force theory of negligence liability was applicable to the decision of police officers to enter a residence with knowledge that a potentially suicidal man was in the house. Hayes, 160 Cal.Rptr.3d 684,305 P.3d at 254. Immediately afterwards, the officers shot and killed the man, who had walked toward the officers carrying a knife. Id.

The causal relationship in this case between the allegedly negligent pre-force conduct and the later use of force is far more attenuated. The events at the motel took place significantly earlier in time and in a different location than the later altercation between Mulligan and the officers. California law does not support the existence of negligence liability in these circumstances. We therefore affirm the district court’s grant of summary judgment.

IV. Evidentiary Rulings

Mulligan challenges the district court’s exclusion of two pieces of evidence during the trial of his excessive force claims. A district court’s evidentiary rulings are reviewed for abuse of discretion. McEuin v. Crown Equip. Corp., 328 F.3d 1028, 1032 (9th Cir. 2003). We conclude that the district court did not abuse its discretion in excluding the contested evidence.

Mulligan first argues that the district court erred in excluding evidence that he was not ultimately charged with any crime for his conduct on the night of the incident. The evidence was excluded as irrelevant. In Mulligan’s view, the evidence-was relevant in that it contradicted the officers’ allegations that Mulligan had been acting violently and had been attempting to break into locked cars before he was detained. The district court did not abuse its discretion under the circumstances. Even assuming that there was some marginal relevance to the evidence, it was properly excluded under Rule 403 because “its probative value [was] substantially outweighed by a danger of ... confusing the issues, misleading the jury, [or] undue delay.” Fed. R. Evid. 403. Any probative value here was minimal given that many factors inform a prosecutor’s decision to press charges other than whether the events being investigated actually occurred. A contrary approach might motivate a prosecutor to pursue a criminal charge simply to avoid an inference to that effect. Moreover, any probative value was outweighed by the possibilities that a jury unfamiliar with prosecution practices may have been confused as to the significance of the lack of charges against Mulligan or that substantial trial time might have been taken up by a digression into the prosecutor’s decision-making process.

Mulligan also contends that the district court erroneously excluded evidence that Officer Nichols had previously been accused of on-duty sexual assault. It was not an abuse of discretion for the district court to exclude that evidence, either. The allegations against Nichols had nothing to do with the excessive force claim at issue in the trial. Evidence of prior bad acts is not admissible except to show “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). The accusations that Nichols had sexually assaulted vulnerable women involved conduct distinct from the excessive force allegations at issue in Mulligan’s case.

V. Negligent Supervision Claim

Mulligan finally, argues that the district court erred in not proceeding to trial on his negligent supervision claim against the City. The district court acted properly in not proceeding to the second phase of the trial. Once the jury had found that the officers did not act unlawfully, there was no basis for a claim against the City that those officers had been negligently supervised.

VI. Conclusion

We affirm the judgments of the district court. The statements allegedly made against Mulligan as joint state actions by the LAPPL were not sufficiently adverse to support a claim of First Amendment retaliation. Consequently, the district court’s grant of summary judgment for that claim was proper. Similarly, the district court did not err in its decisions regarding Mulligan’s police negligence, excessive force, and negligent supervision claims.

AFFIRMED.

      . The precise reason why the officers took Mulligan to the motel is one of the facts about which the parties disagree. Mulligan asserts that he was taken to the motel against his will. The officers testified at trial that Mulligan, who appeared disoriented, asked them to take him to the motel to "sleep it off.”

      . “Bath salts” is the popular term for a type of synthetic stimulant with similar effects to amphetamines and cocaine. Drug Enforcement Agency, Bath Salts or Designer Cathi-nones (Synthetic Stimulants), http://www.dea. gov/druginfo/drug_data_sheets/Bath_Salts.pdf (last visited, August 22, 2016) (available at https://perma.cc/9MVH-V5XM). Bath salts have serious side effects, including agitation, insomnia, paranoia, delusions, and panic attacks. Id.

      . The complaint against Rose was assigned to a different district judge, who dismissed that claim based on issue preclusion following the entry of summary judgment on the retaliation claim in the first action. The dismissal of the complaint against Rose is also challenged in this appeal.

      . Mulligan’s appeal of the dismissal of his action against Rose rests entirely on his contention that summary judgment should not have been entered against him on the retaliation claim in the first lawsuit. He does not dispute the application of issue preclusion in the second lawsuit if the summary judgment was proper. Because we hold that the summary judgment was properly granted, we also hold that Mulligan’s separate retaliation suit against Rose was properly dismissed. We will not discuss the action against Rose separately.

      . We note that we do not understand Gini and Nunez to stand for the proposition that speech by government officials can never give rise to a claim of First Amendment retaliation in the absence of a loss of tangible rights or government benefits. See Coszalter v. City of Salem, 320 F.3d 968, 975-76 (9th Cir. 2003) (stating that Nunez does not create “an exclusive, category-based limitation on the kind of retaliatory action that is actionable under the First Amendment,” nor does it mean that “the government is allowed to take severe retaliatory actions ... because those actions do not result in the loss of a valuable governmental benefit or privilege”). Indeed, we recognize that "[¡Informal measures, such as ‘the threat of invoking legal sanctions and other means of coercion, persuasion, and intimidation,’ can violate the First Amendment also.” White v. Lee, 227 F.3d 1214, 1228 (9th Cir. 2000) (quoting Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 67, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963)).

      . The City and LAPPL also argue in their briefs that summary judgment was proper for the reason that Mulligan’s claim solely involves the conduct of the LAPPL, a private actor, and is therefore not actionable under Section 1983. The City separately argues that even if the LAPPL and its officers unlawfully retaliated against Mulligan, the City itself could not be held responsible under the rules established in Monell v. Department of Social Services of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Because we conclude that the conduct at issue was not a violation of Mulligan’s constitutional rights, we do not address these alternative arguments.

      . The California Supreme Court did not address whether decisions before non-deadly force can be actionable negligence, but addressed this issue only in the context of "deadly force.” See, e.g. Hayes, 160 Cal.Rptr.3d 684, 305 P.3d at 263 ("Our response to the Ninth Circuit’s question on an issue of state law, as restated by this court, is this: Law enforcement personnel’s tactical conduct and decisions preceding the use of deadly force are relevant considerations under California law in determining whether the use of deadly force gives rise to negligence liability.” (emphasis added)).

      . Mulligan has filed a motion for judicial notice of a felony complaint against Officer Nichols arising from the same conduct that was the subject of the sexual assault allegations. The complaint was filed on February 16, 2016, more than two years after the trial concluded. It could not have been considered by the district court at the time it made its evidentiary determinations, so we deny the motion. We do not have reason to consider whether the fact of a felony complaint filed prior to trial would have been admissible.