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Ninth Circuit Grapples with Agency Positions First Raised in Litigation

By George Gerachis, David Cole and Juliana Hunter

In this article, the authors discuss two recent cases that question how much weight courts should give an agency’s position that is first raised in litigation.

In two recent cases, Amazon.com1 and Altera,2 different Ninth Circuit panels issued important decisions involving cost-sharing arrangements. Underlying these cases is a more fundamental issue: How much weight should courts give an agency’s position that is first raised in litigation? Because the two decisions approach the question in ways that are hard to reconcile, a rehearing of Altera by the full Ninth Circuit is warranted.

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