Judges Voting From Beyond The Grave?

“May a federal court count the vote of a judge who dies before the decision is issued?” The cynical New Jersey resident in me thinks the answer to this question is simple – people vote all the time in New Jersey after they die. But this was not what the Supreme Court was after in Yovino v. Rizo.

Yovino was before an en banc panel of 11 judges at the U.S. Court of Appeals for the Ninth Circuit. One judge participated in oral argument, voted, and wrote a decision on the case, but died before the decision was released. The Ninth Circuit nonetheless counted his vote, which was significant, because it was the deciding vote. By counting his vote, the judge’s decision became the majority opinion and thus binding precedent in the Ninth Circuit. If his vote had not been counted, then the case would have ended in a 5-5 tie with no majority opinion, and thus no binding precedent.

The Ninth Circuit claimed that it was justified in counting the judge’s vote because “the majority opinion and all concurrences were final, and voting was completed by the en banc panel prior to his death.” The Supreme Court disagreed. It held that, by statute, only active or senior-status judges can participate on en banc panels. It further held that judges’ votes and opinions do not become “immutable at some point in time prior to their public release,” but instead, “a judge may change his or her position up to the very moment when a decision is released.” Thus, a decision is not final until the date of its release. And if a judge dies or retires before that date, then he or she is no longer an active judge or a senior judge when the decision is made, therefore his or her vote does not count.

Applying this standard to Yovino, the Supreme Court held:

Because Judge Reinhardt was no longer a judge at the time when the en banc decision in this case was filed, the Ninth Circuit erred in counting him as a member of the majority. That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death. But federal judges are appointed for life, not for eternity.

(Although the lede is sufficiently buried at this point, that last sentence is the main reason why I wrote this post.)

Litigation Privilege Protects Client’s Statement That His Former Lawyer Was a Liar, Thief, and “No Good Drunk”

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Anyone who has practiced law for any period of time likely has a story about a misdirected email. You know, the one you meant to send to a client or a colleague, but it went to your adversary or your supervising partner instead. These situations often just result in mild to moderate awkwardness around the office, but they sometimes create bigger problems. MacNaughton v. Harmelech, a recent decision from the Appellate Division, involved the latter. But it also involved the litigation privilege, something I wrote about just a few weeks back. (What Do eBay, The "40 Year Old Virgin," And The Litigation Privilege Have In Common?). And, fortunately for defendant, the statements in his misdirected email were protected by that privilege.

In MacNaughton, plaintiff, a New Jersey lawyer, represented defendant in a lawsuit involving defendant's company. Defendant disputed plaintiff's bill and plaintiff eventually sued defendant over the bill. At some point during the litigation, the trial court asked the parties whether they were interested in mediation. Around the same time, however, plaintiff was "in contact with another of defendant's creditors about banding together to force defendant into involuntary bankruptcy." As you might expect, when defendant learned about plaintiff's efforts, it colored his decision about whether to agree to mediation. In fact, defendant sent the following email, reprinted exactly as it appeared in the Appellate Division's decision, to his lawyers on the subject:

Please I Am asking you to file a paper in the state court there WILL NOT BE AGREE NOT TO BE A MEDIATION MACNAUGHTON CALL TODAY AND ASK HIM TO TRY TO POT ME IN IN VALENTRY BANKRUPTCY AS YOU SEE HE IS A. LIAR THIEF AND NO GOOD DRUNK

NO TO BE TRUSTED THANKS

Unfortunately, defendant also copied plaintiff on this email. Upon receiving it, plaintiff filed a one-count complaint for defamation. The trial court held a hearing on whether the statements were protected under the litigation privilege. After taking testimony from defendant and his current counsel, the court applied the four-factor test from Hawkins v. Harris, and held that they were. As a result, plaintiff's claim was dismissed. Plaintiff appealed.

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What Do eBay, The “40 Year-Old Virgin,” And The Litigation Privilege Have In Common?

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Not much, but please keep reading.

In the movie, the 40-Year-Old-Virgin, an almost unrecognizable Jonah Hill has a very small, but funny, part. He plays a customer at the “We Sell Your Stuff On Ebay” store, which is owned by Steve Carell’s character’s love interest, played by Catherine Keener. According to IMDB.com, Hills plays “Ebay Customer,” who is, to say the least, having trouble understanding how the store works. He wants to buy some "wonderful" shoes that he found at the store. Keener's character explains that she does not actually sell any of the items in her store at the store, she sells them on eBay. Hill's character just doesn't get it, eventually telling Keener's character that he just wanted to buy the shoes and take them home, but that she was "making it extremely difficult" for him to do so.

The recent Appellate Division decision, XCalibur Communications v. Karcich, involved a dispute over the sale of the plaintiff’s merchandise on eBay. No word on whether any of those sales involved shoes like the ones Hill’s character was looking to buy, but the decision helps clarify the scope of the litigation privilege, which is broader than many people think.

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Waiver In Gym Membership Agreement Not Too Broad And Not Barred By TCCWNA

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Gym memberships are notoriously difficult to cancel. As a result, there is a fair amount of litigation over the cancellation, or attempted cancellation, of gym memberships, many of which are class actions. A recent Appellate Division decision, Mellet v. Aquasid, LLC, was one such lawsuit. As an added bonus, the decision also involves the Truth in Consumer Contract, Warranty, and Notice Act (TCCWNA), a once relatively obscure statute that has recently become popular — or controversial depending on which side of a lawsuit you find yourself — and about which I have written here and here.

In Mellet, defendant was a health club. Plaintiffs were members of the health club. Plaintiffs attempted to cancel their memberships but their requests were declined and the health club continued to bill each of them. When plaintiffs failed to pay, defendant attempted to collect these unpaid fees — which included monthly dues, late fees, collection fees, and administrative fees – from plaintiffs. In response, plaintiffs filed a putative class action, alleging that defendant's membership agreement and the fees it charged violated New Jersey law, including TCCWNA. The trial court denied plaintiffs' motion for class certification and plaintiffs appealed.

On appeal, plaintiffs raised a number of issues, but the most interesting one involved its claim that the broad waiver in the membership agreement violated TCCWNA. It provides, in part, that "[n]o seller . . . shall . . . enter into any written consumer contract . . . which includes any provision that violates any clearly established legal right of a consumer or responsibility of a seller . . . as established by State or Federal law at the time." Its purpose was to prevent deceptive practices in consumer contracts by prohibiting the use of illegal terms or warranties, but it has become a favorite of plaintiff's attorneys because consumers can sue under TCCWNA even if they have suffered no injury or loss, and because the statute allows successful plaintiffs to recover attorney's fees as part of their damages.

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“Just Remember, When You Control The Mail, You Control . . . Information.”

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Whenever it snows, we shovel out a little area in front of our mailbox because we heard that if the mail carrier cannot easily get to your mailbox, then he won't deliver your mail. This has always annoyed me, but not so much that I ever thought of suing our mailman. The same cannot be said of the plaintiff in Finnemen v. Pollard, who filed a federal lawsuit against his mail carrier for refusing to deliver his mail because his mailbox was broken.

The facts in Finnemen are a little sketchy, as plaintiff appeared pro se. Plaintiff's mail carrier, Defendant Maurice Pollard, told plaintiff that he would no longer deliver mail to plaintiff because plaintiff's mailbox was broken. When plaintiff went to the post office, defendant, Jamar (no last name), allegedly told defendant, Janine (also no last name), that plaintiff's mail could not be delivered because of the broken mailbox. Plaintiff claims that this was "a lie" but does not contest that his mailbox was broken. Regardless, Plaintiff alleged that defendants tampered with his mail because, when he visited the post office, he was sometimes able to pick up his mail and sometimes there was no mail for him to pick up. Plaintiff sued under Section 1983, alleging that his civil rights had been infringed by the individual defendants.

Defendants moved to dismiss the complaint, and the motion was granted. The district court held that plaintiff "fundamentally alleged" who participated in the alleged scheme to tamper with his mail, but not "how it was done or even how it amounts to tampering with his mail." For example, the district court noted that plaintiff failed to allege that his mailbox was in working order and that the re-routing of his mail was therefore part of a scheme, or that any mail was not turned over to him, or that it was delayed in reaching him. The court relied on another mail tampering case (who knew there was more than one) to hold that the allegations in the complaint did not "nudge his claim . . . across the line from conceivable to plausible" as required under the Federal Rules of Civil Procedure. Although not immediately apparent from the complaint, the district court also held that, to the extent plaintiff was alleging discrimination — "that he has been required to pick up his mail where others have not — he failed to state a claim under this theory as well because he had not alleged that he was treated differently than others or that there was not a rational basis for that treatment.

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