There’s a very unusual course of events leading up to the innocuous order dismissing the appeal in Foulon v. Klayman & Toskes, case no. 05-35383 (9th Cir. Mar. 24, 2008). For details on this strange tale of the unrequested en banc hearing that almost was (yes, you read that right), check out California Appellate Report, where Professor Martin calls what happened “sufficiently rare that it took me quite a while to figure out even what happened.” Then see why Appellate Law & Practice refers to at least one step in the procedure as “judicial activism.”