Each year, Tom Goldstein, co-founder of the widely read SCOTUSblog, compiles and releases Supreme Court statistics. Last month, Mr. Goldstein released the final “Stat Pack” for the Supreme Court’s most recent October 2010 term with these results: The Court reversed or vacated seventy-nine percent of the decisions it reviewed. Circuits with the highest percentage of reversals included the Sixth Circuit (eighty-three percent) and the Fifth Circuit (eighty percent). The Ninth Circuit came in third at seventy-nine percent.

There is nothing remarkable about these figures. SCOTUS scorecards demonstrate that over time the Supreme Court will typically reverse or remand seventy to seventy-five percent of the cases it hears. Most (if not nearly all) circuits are reversed at levels well above the fifty-percent mark year after year.

What is interesting, though, is the reaction to these numbers – in particular, the media’s condemnation of the Ninth Circuit. Referencing the SCOTUSblog figures, the Los Angeles Times reported this week that “it was another bruising year for the liberal justices of … the 9th Circuit.” The American Bar Association agreed writing, “the Ninth Circuit took another beating from the United States Supreme Court this past term”.  Earlier in the year, media attacks on the Ninth Circuit were equally disapproving with headlines like “SCOTUS smackdown of the Ninth Circuit.”

The Ninth Circuit has been a media punching bag for many years, but looking at the SCOTUS figures, I wonder how much of the recent criticism is misplaced. In the October 2009 term, the circuit courts were reversed seventy-one percent of the time. That year, while the Supreme Court reversed eighty percent of Ninth Circuit cases, three other circuits plus the grouping of all appeals taken from state courts had higher reversal rates. The year prior, during the 2008 term, the Ninth Circuit was reversed only sixty percent of the time, well under the seventy-six percent reversal rate for all cases. Seven other circuits that year had higher reversal rates than the Ninth Circuit; six of them were reversed at the one-hundred percent level.

If it’s the numbers speaking, why isn’t the story about the much higher reversal rates we see out of the Fifth and Sixth Circuits?  Why has no one written about the propensity of the Supreme Court to turn back state Supreme Court decisions which, in this past term, were reversed at a rate of one-hundred percent?  Are we to discount the importance of the five Ninth Circuit opinions upheld by the Supreme Court or disregard the reversals by a narrow 5-4 split?  

Commentators who question using reversal rates as a benchmark for court performance point out that the Supreme Court reviews only a very tiny percentage of the total number of circuit court decisions.  Drawing generalization and creating themes from such a small sampling would be an imprecise science at best, misleading at worst. Furthermore, because circuit courts are comprised of judges who occupy every corner of the ideological spectrum, reaching consensus has more to do with the make-up of a particular panel than anything else.   

The Times points out that while seventy-nine percent may not be unusual in terms of past records, twelve of the reversals this year were unanimous which, it argues, may indicate that the Ninth Circuit is more “often out of step with even the high court’s liberal justices.”  But implicit in this remark is an assumption that Supreme Court opinions, even if unanimous, are somehow more “correct” – certainly, a debatable conclusion.   

In my reading about reversal rates I found two articles of particular interest:  The first, a recent essay by Diarmuid F. O’Scannlain of the Ninth Circuit, widely considered the that court’s most conservative jurist, decries Ninth Circuit reversal statistics (the Ninth Circuit’s record is “strikingly poor”), but raises some interesting questions about whether nominal percentage differences between circuits should mean anything.  The other article (76 MOLR 315) raised what I thought an interesting approach to judging our judges: instead of using reversal statistics as a measuring stick, why not measure performance according to the mix of positive and negative citations to legal opinions.  For more on this, see Judging the Judges in Research References below.

RESEARCH REFERENCES

General: Those interested in reading more about Supreme Court reversal rates and the role of judicial statistics, might consider a structured search in WestlawNext along these lines:

“circuit court” “supreme court” “ninth circuit” /50 (reversal /2 rate) /100 statis!

Circuits by Supreme Court Term: The Court’s term runs from the first Monday in October to the first Monday of October the following year.  The synopsis of the Supreme Court case will reference the origins of the case as well as the Court’s holding.   So, to approximate the research discussed in this article, try the following in the SCT database:

da(aft 09/03/2009 and bef 10/04/2010) and sy(ninth-circuit)

Judging the Judges:

For this analysis we’re picking on Alex Kozinski.  To perform an analysis of positive/negative citations recommended by the Missouri law review referenced above, we began with a search in opions by Kozinski from 2010 forward: In CTA9, try ju(kozinski) and da(aft 2009).  Then, we downloaded  just the citations to Word.  We ran this word document through WestCheck for Cases and Negative History only.  Call the Reference Attorneys if you’d like us to walk you through this process.  The sample report is here: Kozinski. (Note: This Word document is about 90 pages long.  The obvious benefit of reversal rates, is that they are a convenient snapshot.)

Reversal reports are available for individual judges from Profiler-WLD databases.  Find the table for Appeals of Decisions BY (not TO) Judge.

Earlier this month, the Sixth Circuit Court of Appeals panel struck down Michigan’s ban on the consideration of race and gender in college admissions, but not for reasons you might expect.   The decision was not based on the value of diversity in the classroom, the nature of discrimination, or even the disadvantages faced by minorities in education and the workplace.  Instead, the Court found the ban unconstitutional because of the way it was created – by a Michigan voter approved constitutional amendment.  Because the ban could only be lifted by another constitutional amendment, the Court found that it effectively eliminated (or severely restricted) the ability of minorities to make further objection through an administrative or legislative process.

The decision (2011 WL 2600665), Coalition to Defend Affirmative Action v. Regents of the University of Michigan, is significant because it places minorities on equal footing with the majority in an affirmative action debate in Michigan that has been closely watched for over a decade.  But there is another reason the decision is important: it signals a renewed willingness of courts – indeed, conservative leaning courts at the very highest levels – to reject as unconstitutional efforts by state electorates to limit minority participation by constitutional fiat.   

Referenda like Michigan’s date back to the 1960s when white majorities attempted to prevent African-Americans from passing anti-discrimination laws and ordinances.   In Hunter v. Erickson, 393 U.S. 385 (1969), the Supreme Court struck down an amendment to the Akron, Ohio city charter which required that all ordinances regulating real estate transactions “on the basis of race and religion” be approved by referendum.  Similarly, in Washington v. Seattle School District, 458 U.S. 457 (1982), the Supreme Court found invalid a Washington state ballot measure that effectively allowed for busing for any reason other than to promote racial integration.  In those cases, the Supreme Court found that the laws in question “placed special burdens on racial minorities within the governmental process, thereby making it more difficult for certain racial and religious minorities than for other members of the community to achieve legislation that is in their interest.”  

In Romer v. Evans, 517 U.S. 620 (1993), the Supreme Court struck down Colorado’s “Amendment 2″ which prohibited the state from passing or enforcing any law that would entitle gay and lesbians to “have or claim any minority status, quota preferences, protected status, or claim of discrimination.”  The Court found that the amendment withdrew from homosexuals, but not others, legal protection for injuries caused by discrimination and prevented reinstatement of protections.   While recognizing that the amendment could itself be repealed by the voters as some point in the future,  the Court concluded that it was too great a burden to impose on only one group (homosexuals), since no other group would have to amend the constitution or repeal a portion of it in order to create change.* 

Notwithstanding these Supreme Court precedents, voters continue to pass referenda directed at minority interests at an alarming rate.  Arizona, California, Nebraska, and Washington all have affirmative action bans similar to the one Michigan voters passed.  In the past decade, over twenty-five states including California, Hawaii, Alaska, Nevada, and Nebraska have all passed referenda limiting the marriage rights of same sex couples, although the California ban, Proposition 8, was recently found to be an unconstitutional on due process and equal protection grounds.  Minnesota voters will vote on an amendment to prevent same sex marriage next year.  

I suppose that for opponents of affirmative action and gay marriage, constitutional amendments serve to insure what they believe is a degree of democratic oversight — voters preventing “rouge” courts from imposing their own policy viewpoints on the will of the people.  But for affirmative action and gay marriage advocates, these amendments serve to confine minorities to a kind of perpetual second-class status leaving them with no realistic avenue to address future injuries caused by discrimination.  Without equal political access, the interests of minorities are necessarily compromised.  

A good example is, Vermont, New Hampshire, Maine, the District of Columbia, and now New York which have each passed statutes legalizing same-sex marriage, although Maine’s’ statute was overturned through referendum.   Had constitutions been altered in those states, elected officials would never have been allowed to debate the merits of same sex marriage bills let alone bring them to a vote.  Likewise, racial and ethnic focused referenda serve to silence those interested in preserving diversity in classrooms and in the workplace.  Consider what happened in Michigan:  

In 2003, the Supreme Court decided in Grutter v. Bollinger (539 U.S. 306) that while the University of Michigan could not set racial quotas for certain racial groups, it could still consider race and ethnicity as a “plus factor” when making individualized decisions.  Not satisfied with that result, a group mobilized to place on Michigan’s ballot a proposal to amend the Michigan Constitution “to prohibit all sex and race–based preferences in public education, public employment, and public contracting.”  Michigan voters eventually passed that proposal by a narrow margin in November of 2006, but (to point out the obvious) they did so with an overwhelmingly white electorate majority.  Further, an exit poll showed that 70% of non-white men and 82% of non-white women voted against the amendment.  Appellant briefing (Brief of Appellant, 2009 WL 1439511)

The next month, Michigan institutions were forced to alter long-standing affirmative action programs by eliminating any and all considerations for race. Appellants offered a record (Brief of Appellants, 2009 WL 1439511) showing that as a direct result of the amendment, minority populations in Michigan colleges and universities decreased significantly. Expert testimony (Appellate Brief, 2009 WL 1456909) indicated that it would be “impossible” to “achieve the same sort of racial or ethnic diversity” or “even enroll a critical mass of underrepresented minorities” without considering race.  Worse, because decision-makers could no longer consider race, gender, or ethnic based arguments, minorities were left without a voice altogether.   

Drawing from Hunter and Seattle, the Sixth Circuit’s decision in Regents has leveled the playing field in Michigan.  As the majority pointed out, while a Michigan citizen seeking to change a school policy on an issue unrelated to race might lobby the admission committee, petition the dean or a school board, or launch a campaign in the state legislature, those interested in effecting change to race-based policies were left with no alternative but to amend the Michigan Constitution, an enormous task requiring resources not typically available to minority groups.  According to the Court, this narrowing of reasonable alternatives, “removed the authority to institute racially-focused policies and … and lodged it at the most remote level of Michigan’s government, the state Constitution.”   The result: a violation of the right of minorities in Michigan to equal protection of the law through an impermissible “rigged” game designed “to reproduce its success indefinitely.”

The Michigan Attorney General has vowed to appeal  the decision and and commentators agree that the outcome is unclear.  A similar case seeking to overturn California’s ban is currently pending in the 9th Circuit (Case No. 11-15100).  It is likely that the issue will reach the Supreme Court.

In the meantime, the message from Supreme Court precedent and now from the Sixth Circuit is clear: when minorities are deprived equal access, via constitutional amendments, to governmental and political processes available to others, the Equal Protection Clause is violated.  

* Since Romer, however, other constitutional amendments effecting minority access have been upheld by lower courts. In Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997), for example, the Ninth Circuit refused to apply a ‘political structure’ equal protection analysis because, it reasoned, “group (women and minorities) alleged to face special political burdens itself constituted a majority of the electorate.”  In Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006), the Eighth Circuit refused to find a political access problem with Nebraska’s gay marriage ban because they ruled that homosexuals are not a suspect class and, under a rational basis standard, laws defining marriage between a man and a woman are “presumptively” valid.

As I was reading about the launch last week of Facebook’s face recognition software that automatically “tags” photos that look like you, I was reminded of those “separated at birth” magazine features that would pair two carefully selected photographs of unrelated celebrities and the juxtaposition would highlight their similarities to funny, sometime hilarious, effect.  Now, instead of magazine editors eyeballing side-by-side photographs, Facebook software is drawing the comparisons. While having a computer map your face and match it to a photo might be kinda creepy, I for one will not object to an automatic photo tag and might even enjoy a mis-tag if it means the revelation of some random far away twin.   

Privacy advocates are less humored.  The Electronic Privacy Information Center (EPIC), joined by The Privacy Rights Clearinghouse and Consumer Watchdog and others, has filed a complaint (pdf) with the Federal Trade Commission (FTC) to order Facebook to suspend the feature.  Members of the Congress have expressed public support for the complaint and have encouraged further FTC involvement. Yesterday the Connecticut Attorney General requested a meeting with Facebook to discuss photo tagging. 

The concerns center less on the creepy factor, and more on Facebook’s policy of automatically enabling the feature instead of offering its users the option of enabling it themselves in the first instance. Unless Facebook users affirmatively opt-out by following a series of detailed steps on the site, they will automatically be subject to the feature and run the risk of having the system identify (or misidentify) them is photos. Further, once an automatic tagging takes place, the tag might be shared and stored without the knowledge of the user. To undo this, users are forced to search for the disclosures and then figure out how to deactivate the tags. 

Facebook defends opting-out by pointing out that the policy facilitates “sharing” and “community building,” concepts that all Facebook users buy into when they sign up for the service.  But some commentators are suggesting ulterior motives – that by capturing identity information from unwitting users and those less savvy about navigating the (somewhat confusing) privacy settings, Facebook is mining for data in an attempt to “inflating its commercial value as it nears an initial public offering.”    

Facebook is certainly no stranger to privacy objections. EPIC  has now filed three complaints with the FTC questioning Facebook privacy settings and challenging the dissemination of address and phone information to third-parties.  Facebook has also been listed as a defendant in at least a dozen cases involving privacy concerns, the two most notable of which are the In re Facebook Privacy Litigation (5:10cv02389) case currently making its way through the Northern District of California court system and a class action complaint (2011 WL 1663627) filed in the Eastern District of New York just last month alleging that Facebook misappropriated the names and likeness of minors without parental consent.* 

But it remains unclear whether any laws have been broken or rights violated.  Courts have long held that there is no expectation of privacy in information an individual knowingly exposes to the public. See e.g. California v. Greenwood, 486 U.S. 35 (1988).  Nor was I able to find any case drawing into question the practice of up-front gathering of personal information on websites for behavioral or advertising purposes.

To date, no court has ruled against Facebook in a case with wide ranging privacy implications.  

*I searched Westlaw for Complaints against Facebook using the following terms and connectors in FILING-ALL:

 (TI,PR(FACEBOOK) & (PRIVACY /3 INV! ACT SETTING CONCERN) & (CONSUMER /3 PROTECT!) (UNFAIR! /3 COMPET!)) & ((DT(COMPLAINT PETITION) % DT(BRIEF MOTION MEMORAN! REPLY RESPONSE ANSWER COUNTER-CLAIM COUNTER-PETITION CROSS-CLAIM COUNTER-COMPLAINT COUNTER-SUIT)))

The Supreme Court’s reinterpretation of F.R.C.P. 8 in Bell Atlantic Corp v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) revolutionized pleading practice and created a tsunami of case law concerning the level of specificity required in complaints.  But, plaintiff’s counsel are not the only lawyers having to rethink pleading practice in the wake of Twombly and Iqbal — defense counsel are also scrambling.  The number of motions brought to strike affirmative defenses under F.R.C.P 12(f) for being “insufficient” appears to be rising dramatically over the last four years and, since 2007, there have been no fewer than 80 district court decisions offering up conflicting conclusions to this question: do the higher pleading standards of Twombly apply to affirmative defenses, or only complaints?*

In the last two months alone, at least ten district courts have ruled on the issue, most finding that pleading standards for complaints did not apply to defenses asserted by a party responding to a complaint.  See, e.g.,  Reimer v. Chase Bank (2011 WL 2110242),  Schlief v. Nu-Source (2011 WL 1560672), and Tyco v. Victaulic (2011 WL 1399847).   But in many other recent decisions, courts reached the opposite conclusion – that Twombly and Iqbal should be applied to affirmative defenses.  See, e.g., Hayn v. Green Ford Sales (263 F.R.D. 647), Castillo v. Roche Labs (2010 WL 3027726).  To date, no appellate court has ruled on the issue.

The Kansas District Court’s decision last month in Fally v. Friends Univ. (2011 WL 1429956) is representative of those decisions refusing to apply Twombly.  As its primary justification, the court noted that the burdens associated with pleading claims under Rule 8(a)(2) which provides for “a short and plain statement of the claim” should be read independent of Rule 8(c)(1) which only concern affirmative defenses:  

The differences between the Rule 8 requirements … are significant to the court. Under the plain language of Rule 8, a party making a claim for relief in a complaint must plead allegations showing that such party is entitled to relief. No such requirement appears in subsection (b) or (c) governing defenses. To the contrary, a responding party must state defenses in short and plain terms. Fed.R.Civ.P. 8(b)(1)(A). And, arguably, a responding party asserting affirmative defenses is required to do no more than “affirmatively state” such affirmative defense. 

Falley v. Friends Univ., CIV.A. 10-1423-CM, 2011 WL 1429956 (D. Kan. Apr. 14, 2011)

The court went on to find that Twombly’s higher standard — which requires that claims “raise a right to relief above the speculative level” — should apply only to claims assertion under 8(a) and has no relationship to subsection (b) or (c) — “where the pleading party bears no burden of showing an entitlement to relief.” 

To bolster its decision, the Falley court also concluded that maintaining higher pleading standard for complaints makes sense because plaintiffs may take years to investigate a complaint (limited only by the statute of limitations), but once the complaint is served, a defendant has only 21 days in which to serve an answer.  Accordingly, it makes better sense to require more factual description of a plaintiff than a defendant.  In addition, the court noted that applying the Twombly standards to answers would result in increased motion practice with little practical impact – defendants are often allowed leave to amend as a remedy. 

Conversely, courts finding Twombly applicable to affirmative defenses reason that the interpretation of Rule 8(a) in Twombly applies to all pleadings not just to complaints.  They also tend to find that the practical purposes underlying Twombly – the weeding out of unnecessary claims and the prevention of unnecessary costs – should apply equally to affirmative defenses.  Examples of this type of reasoning can be found in Shinew v. Wszola (2009 WL 1076279) and United States v. Quadrini (2007 WL 4303213).

Back in the day of notice pleading, bare-bones affirmative defenses were accepted practice.  Today, however, the lack of clarity among the courts on whether the Twombly standards extend to responsive pleadings, creates a bit of a conundrum for defense practitioners and for court houses.  If defense counsel files a thinly worded response believing an affirmative defense might apply, but they have not yet fully fleshed out evidence to support that defense, they now run the risk of inviting a 12(f) motion under Twombly (thus, creating work for the judge and clogging dockets).   On the other hand, it hardly seems fair to require defense counsel to come up with detailed defenses given short federal response times.  Certainly, in the days following the filing of a lawsuit, defendants often lack the factual information that would enable them to meet the higher pleading standard.

Until the appellate courts sound off on the issue, defense counsel should be aware the some district courts are inclined to hold the pleading of affirmative defenses to a higher standard and prepare their responses accordingly.

*   My search (below) in FED-FILING-ALL for the four years prior to Twombly, delivers just 730 motions and supporting memorandum seeking removal of affirmative defenses.  In the four years since Twombly, the Westlaw database contains  nearly double the number of filings – 1326.

 PR((MOTION +3 DISMISS STRIKE) /30 “AFFIRMATIVE DEFENSE”) & 12(F) & da(aft 6/2003 & bef 6/2007) % PR(REPLY RESPONSE OPPOSITION)

 To pull primary law, try running a plain language search in WestlawNext for “application of twombly to affirmative defenses.”  The search will also pull up a growing body of secondary source materials addressing the topic.

[Editor's Notes: A Word version of this post is available here: affirmativedefenses if you care to cite check this document.  While this document certainly does not purport to include a comprehensive list of the relevant case law, you might find updating this document with WestCheck helpful.  The web version of Westcheck is here:  www.westcheck.com.

For appeals, set up docket alerts using party names or, on occassion, try the the following search in the DOCK-CTA database:

ptn((Reimer and Case) (Tyco and Victaulic)  (Hayn and "Green Ford") (Castillo and Roche) (Fally and Friends) (Shinew and Wszola) (Quadrini)) ]

Rarely a day goes by that a Reference Attorney isn’t asked to jump into the thick of discovery practice, searching for cases to cement a motion to compel or justify the imposition of sanctions. Most seek florid federal circuit court language finding abuse of discretion for imposing or failing to impose sanctions or which drives home what so very few circuit opinions will do – find that lawyers who don’t follow the rules should (or should not) be punished in the strongest manner possible.

That there are so few helpful circuit level opinions concerning discovery abuse is no great secret; these decisions are interlocutory. Further, circuit courts are loath to mediate smaller discovery battles preferring to reserve their energies for ultimate issues. On the other hand, while district courts are certainly in the best position to observe (suffer) conduct and are granted considerable discretion in these matters, they tend to shy away from the harshest of sanctions – dismissal or default judgment  - opting instead to verbally dispense discovery rulings and/or find a path to the merits. The end result is a very shallow pool of federal case law on dismissal as an appropriate sanction for discovery abuses.*

Enter Judge Gorsuch from the Tenth Circuit. With his decision this month in Lee v. Max International, LLC (2011 WL 1651640), U.S. Judge Gorsuch has provided front line discovery warriors language to sink their teeth into:

“How many times can a litigant ignore his discovery obligations before his misconduct catches up with him? The plaintiffs in this case failed to produce documents in response to a discovery request. Then they proceeded to violate not one but two judicial orders compelling production of the requested materials. After patiently affording the plaintiffs chance after chance, the district court eventually found the intransigence intolerable and dismissed the case as sanction. We affirm. Our justice system has a strong preference for resolving cases on their merits whenever possible, but no one, we hold, should count on more than three chances to make good a discovery obligation.”

Lee v. Max Int’l, LLC, 10-4129, 2011 WL 1651640 (10th Cir. May 3, 2011).

Upholding dismissal as a sanction, Judge Gorsuch explains in very specific terms when enough is enough and warns of the consequences of bad “discovery karma”:

Plaintiffs in this case were given no fewer than three chances … When a party feels at liberty to disobey not just a discovery request but two court orders compelling production of the same material in its control, weeks or months (as in this case) pass without progress in the litigation. Hours, days, weeks of lawyers’ time are consumed at great expense. Focus shifts from the merits to the collateral and needless. This is not speedy, inexpensive, or just. Just the opposite. And no doubt tolerating such behavior would encourage only more of it. But there is such thing as discovery karma. Discovery misconduct often may be seen as tactically advantageous at first. But just as our good and bad deeds eventually tend to catch up with us, so do discovery machinations. Or at least that’s what Rule 37 seeks to ensure.

Lee v. Max Int’l, LLC, 10-4129, 2011 WL 1651640 (10th Cir. May 3, 2011)

In the age of e-Discovery, where discovery maneuvering to gain tactical advantage and the resultant fights are becoming increasingly intense, lawyers seeking to shore their dismissal appeals will no doubt draw on Judge Gorsuch’s “three chances” language. Indeed, if you are up for another primer on what not to do in a discovery battle, check out this (2011 WL 1770468)  recent (and entertaining) bench-slapping out of the DC Circuit which quotes the Lee decision throughout.

*But, try these ideas. Circuit opinions concerning dismissal as a discovery sanction can be found by running the following search in federal circuit decisions (CTA):

DI(170AK1636 and DISMISS!)

The KeyNumber is for sanctions for failure to reply to discovery requests.  Try a more targeted search:

170AK1636 /P REPEAT! REGULAR! +3 COMPL! NON-COMPL! VIOLAT! REFUS! FAIL!

I have a feeling that the debate over whether Justices Thomas and Kagan should recuse themselves from consideration of the Affordable Care Act is just getting started.  So far, Republicans have demanded that Kagan step aside because of her previous work as President Obama’s Solicitor General.  Then, seventy-four Democratic members of the Congress signed a letter to Justice Clarence Thomas asking that he recuse himself from the case because his wife’s work as a lobbyist for a group opposing the Health Care law creates the appearance of a conflict of interest.  Just yesterday, there was news that members of the Congress are working to see that Justice Thomas is disbarred.  A Complaint seeking his disbarment was filed in Missouri late last month.   

Leaving aside the merits of the debate, what I find so interesting about the calls for recusal is that the only authority that can impose recusal is the individual justice.  There is no procedure that would require a justice to step down, nor is there an appeal process in place following a decision not to recuse, as contrasted to the lower courts. Moreover, the United States Supreme Court is the only governmental entity that is not subject to any mandatory ethics requirements.  

This has led some commentators to urge the adoption of legislation that would require ethical accountability for Supreme Court justices.  In this Washinton Post Op-ed, Nan Aron suggests legistation that would make Supreme Court justices accountable to an ethics code.  To enforce compliance she suggests “adjudication by other sitting justices, retired justices, lower court judges, the judicial conference or some combination of these.”  

Recently, the Congress has taken up Ms. Aron’s charge.  One bill introduced March 1 would establish recusal procedures including public disclosure of the reasons for recusal and a process that would allow parties to request the Court to decide whether a particular justice has a conflict of interest. It would also apply the Code of Conduct for United States Judges to the Supreme Court.  It currently applies only to other Federal judges.   

Another bill (2010 WL 3911894) introduced by Senator Leahy would authorize the designation and assignment of retired justices of the Supreme Court to a particular case in which an active justice is recused.  Introducing the bill, Leahy noted: “Allowing retired justices to sit on the Supreme Court would encourage sitting justices to recuse themselves when there is even an appearance of a conflict of interest.”  156 Cong. Rc. S7791-01   2010 WL 3911894

Passage of any law that would limit Supreme Court power seems, well, unlikely.  For now, the volume of the debate will likely get very loud as the case nears the High Court.

In my reading about recusal, I found these additional references interesting:

Clarence Thomas’ dangerous conceit in the Los Angeles Times

The Court’s Recusal Problem in the New York Times

Watching “The Social Network” lose out to “The King’s Speech” for Best Picture, I couldn’t help but wonder how Cameron and Tyler Winklevoss, would-be twin inventors of Facebook, reacted to the news.  Were the Olympic rowers disappointed that the movie that made them famous didn’t walk away with the big prize?  Or, was the announcement some cause for relief, a signal that their nearly decade long pursuit of justice against Facebook wonderkin, Mark Zuckerberg, might be moving out of the public eye and eventually wind down.  Either way, my guess is that emotions remain high in the boathouse as the Twins await yet another court ruling in the epic battle over Facebook, one that has the potential to reignite the fight.

For those who have yet to see the movie, the Winklevoss twins (the “Twins”), together with their Harvard classmate, Divya Narendra, allege that they had the idea for Facebook, and that Mark Zuckerberg stole their idea.  Zuckerberg and Facebook deny the claims, and for their part, allege that the Twins and Narendra infiltrated their system, took thousands of e-mail addresses, and then spammed them.  After years of vigorous fighting worthy of all the Hollywood attention, the parties entered into a mediation driven settlement in which Facebook agreed to purchase ConnectU, the Twins’ failing competitor site, with shares of Facebook stock — a deal worth in excess of $160 million because of Facebook’s soaring value.

In a remarkable demonstration of — well — “True Grit”, the Twins have now asked the Ninth Circuit to undo the settlement.  They claim that, despite a bevy of lawyers at their side during the mediation, they were duped about the actual value of Facebook stock they were to receive as part of the settlement.  If the Court agrees, the Twins will be $160 poorer, the scorched earth litigation will resume in earnest, and if not already underway, a team of Southern California screenwriters will begin blocking out drafts of “The Social Network II.”

Overturning a settlement is no easy business.  Most who try argue, as the Twins have, that either the settlement was too indefinite to have resulted in a meeting of the minds or that the agreement was the product of fraud.  With regard to the agreement itself, there is typically a “presumption of enforceability” followed by a review of whether the terms are “sufficiently certain.”  As to fraud, Ninth Circuit courts require a showing of a duty plus a level of misconduct that “substantially impeded” the movant’s ability to act.  No easy feat.

One issue specific to the Facebook litigation is the Twins’ novel claim that the settlement should be unwound because Facebook committed securities fraud during the mediation.  The argument is that Facebook was guilty of insider trading in the mediation process because it failed to volunteer all the information it had regarding the valuation of the company.  Ultimately, the Twins relied upon their own research, namely a Microsoft press release, in coming up with a $36 per share value.  They claim that Facebook withheld information that would have disclosed a value closer to $9 per share.  The Twins claim that had they know that information, they would never have settled for so few shares.   

The securities claim will hinge on whether the Twins properly pled a securities claim and on whether Facebook had a duty to volunteer any information bearing on the value of the stock.  One wonders, for example, why such a duty would arise in the course of mediating such contentious litigation.  Oh, and there is the matter of the release signed by the Twins absolving Facebook for “any future fraud claim.”

For those interested in researching cases regarding settlement agreements, I ran a WestSearch on WestlawNext in the Ninth Circuit across all content sets for the following: enforce settlement agreement.  The result yielded the most relevant Ninth Circuit opinions on the topic including:

Callie v. Near , 829 F.2d 888 and William Keeton Enterprises, Inc. v. A All American Strip-O-Rama, Inc., 74 F.3d 178.

A click on secondary sources revealed several articles directly on point including:

 “Reviewing Agreements Reached During Mediation,” a chapter in Cole’s Mediation Law treatise. (MEDIATION § 4:13); and

“Disputing Irony: A Systematic Look at Litigation About Mediation,” a detailed Harvard Negotiation Law Review Article.  (11 Harv. Negot. L. Rev. 43)

A more directed boolean terms and connectors search might look something like:

((settlement mediation /4 agreement) /20 enforc!) and fraud! (sufficiently /4 certain definite) and (fail! +3 disclose) (withhold withheld +3 information)

For those interested in the outcome of the Ninth circuit decision in Facebook, set up a Docket Track in the DOCK-CTA9 for docket number 09-15021.  When the decision is filed, you will be e-mailed an alert. 

Other briefing of interest in this case:

Brief of Appellant/Cross-Appellee Facebook – 2010 WL 5625003

Brief of Appellee ConnectU (the Twins) – 2010 WL 5625005

Appellant’s Reply Brief – 2010 WL 562004

Familiar battle lines have been drawn in Washington during recent  hearings (157 Cong. Rec. H1081-01) over new FCC net neutrality rules.  On one side, Congressional Republicans decried the rules as an unnecessary government intrusion into an internet economy doing fine on its own. On the other side, House Democrats argued the need for rules preventing big service providers from using a paid prioritization system of internet access, thus squeezing out smaller companies who would not be able to compete.

Ultimately, the House agreed to withhold funding (2011 Cong US HR 1) of any FCC action on the rules until further debate.

The  new rules, (2010 WL 5281676) adopted by the FCC in December with a narrow 3-2 vote, are aimed at preventing large companies that provide high-speed Internet service from giving priority to their own content and blocking access by customers to certain other types of content – free Skype internet service, for example. Big telecommunication companies like Verizon and AT&T are opposed to the rules in part because they claim the expense of building out their own networks justifies an open market that allows them to charge more.

Since its adoption of the rules, both Verizon and MetroPCS have sued the FCC in the D.C. Circuit, arguing that it overstepped its authority in proposing the rules. See Metro PSC 700 MHZ v. FCC (11-1016) and Verizon v. FCC (11-1014).

In the midst of the fray, the FCC has launched something called “The Open Internet Apps Challenge,” a contest (2011 WL 41877) seeking the creation an app (of course) that allows broadband customers to measure and protect Internet openness.  The grand prize – now hold on to your hats here – a reception with FCC officials plus travel costs.

Interesting Congressional and industry viewpoints can be found by running the following search in ALLNEWS on Westlaw or the News Category on WestlawNext: f.c.c. /100 (neutrality open /5 internet) and DA(aft 2/2011)

In a number of recent decisions, courts have examined whether material posted on social networking sites is subject to discovery, whether litigants have a reasonable expectation of privacy to information published on social networking sites, and whether third parties have the right to subpoena the social network provider for access to information within an adversary’s account.  See, e.g., Romano v. Steelcase Inc., 30 Misc.3d 426, 907 N.Y.S.2d 650 (discovery and privacy); McCann, McCann v. Harleysville Ins. Co. of New York, 78 A.D.3d 1524, 910 N.Y.S.2d 614 (discovery); Crispin v. Christian Audigier, Inc., 717 F.Supp.2d 965 (third-party subpoena).

In the discovery context, courts are allowing access to material on social networking sites provided that the information sought is relevant to the issues and the request falls with acceptable discovery standards.  In Romano, the plaintiff in a personal injury case claimed that she “had no life” as a result of her injuries and made claims for loss of enjoyment of life.  Because her postings on Facebook and MySpace were believed to be inconsistent with those claims and because they were necessary to the defense, the court allowed discovery of the postings. Similarly, in In Mackelprang v. Fidelity Nat’l Title Agency of Nevada, 2007 WL 119149 (D. Nev. 2000) the defendants viewed the plaintiff’s public MySpace profile after she alleged sexual harassment claims against them.  The court held that the defendants could dig deeper and access through discovery the private messages the plaintiff had exchanged with third parties containing information regarding her allegations.

With regard to privacy concerns, the trend is to reject claims that users have a privacy interest in material they post on social networking sites.  In Romano, for example, the court found that users have no reasonable expectation of privacy because Facebook (like most social networking sites) has a privacy policy informing users that they could not guarantee that only authorized users would have access to their information.

Ethical questions have also been implicated by informal gathering of information from social networking sites for impeachment purposes.   The New York City Bar’s Committee on Professional Ethics recently issued an opinion which concludes that an attorney may not attempt to gain access to a social network site under false pretenses.  The committee noted that while the non-deceptive “friending” an unrepresented third-party may be acceptable, using an office staffer or investigator to pose as an old friend in order to gather information would clearly fall outside of the rules of professional conduct.

The New York State Bar’s Committee on Professional Ethics has also spoken to a related concern – pre-suit gathering of social network information posted by potential parties to a lawsuit.  In a September 2010 opinion, the Committee concluded there was no harm in accessing for information the “public pages” of a social networking site, calling it no different than plugging a name into a Google box.  NY Eth. Op. 843, 2010 WL 3961381 (N.Y.St.Bar.Assn.Comm.Prof.Eth.).  The committee drew a distinction, however, between this and information available only to limited number of select people or “friends.”  They concluded that deceptive attempts to access information hidden behind certain privacy features may cross the line.

The end result of allowing access to social network postings could be the production and use of a trove of new information about parties. Without doubt, this will lead to headaches for litigators who are trying to manage the universe of information relevant to their case.

RESEARCH REFERENCES

See Chapter 18 of eDiscovery & Digital Evidence by Jay Grenig and William Gleisner (The Impact of Social Networking on eDiscovery).

WestlawNext Search:

FACEBOOK MY-SPACE “SOCIAL NETWORK” “SOCIAL MEDIA” “SOCIAL NETWORK” AND PRIVACY

FACEBOOK MY-SPACE “SOCIAL NETWORK” “SOCIAL MEDIA” “SOCIAL NETWORK” AND DISCOVERY

Westlaw Search:

FACEBOOK MY-SPACE (SOCIAL +1 MEDIA NETWORK!) /30 (EXPECT! +3 PRIV!) (DISCOVERY PRODUC! /10 “FULL DISCLOSURE” “MATERIAL AND NECESSARY” PRIVATE) (PUBLIC /5 ACCESS) (MOTION MOV! +3 COMPEL) “PROTECTIVE ORDER”

Multi-State Ethics Opinions, Westlaw Database METH-EO:

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