Appeals — Affirming on Alternate Grounds Supported by the Record vs. Not Considering Issues that the District Court Did Not Reach

From New Mexico St. Investment Council v. Ernst & Young LLP, 2011 U.S. App. LEXIS 7680 (9th Cir. April 14, 2011):

[Footnote] 1. EY argues this Court can affirm "on any ground supported by the record, even if the district court did not rely on the ground." Livid Holdings, Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 950 (9th Cir. 2005). While correct, the U.S. Supreme Court cautions: "It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below." Singleton v. Wulff, 428 U.S. 106, 120 (1976); see also Peterson v. Highland Music, Inc., 140 F.3d 1313, 1318 (9th Cir. 1998). Because the district judge stated explicitly that he did not reach the issue of loss causation with respect to EY, we will not second guess the district court in the absence of a record.

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