TexasSupremeCourt2007 
Clockwise from back left, Justices Johnson, Medina, Wainwright, Brister, Green, Willett, O'Neill, Chief Justice Jefferson, and Justice Hecht.

Last month, the Houston Bar Association sent Blawgletter a copy of its 2009 Judicial Evaluation Results.1  How did the 1,003 HBA members who responded rate the nine justices of the Texas Supreme Court?

Three of Their Honors did well.  They got "outstanding" as their frequentest mark in the "overall" slot:

  • 52.5 percent for Justice Harriet O'Neill.
  • 51.5 percent for Chief Justice Wallace B. Jefferson.
  • 40.3 percent for Justice Dale Wainwright.

The other six earned fewer "outstanding" votes than "poor" or "acceptable" ones.  In fact, each of them received a plurality — and in one case a majority — of "poor" ratings.  Thus:

  • 36.2 for Justice Phil Johnson.
  • 43 percent for Justice Scott A. Brister.
  • 43.7 percent for Justice Paul W. Green and Justice Don R. Willett.
  • 47.6 percent for Justice Nathan L. Hecht.
  • 50.5 percent for Justice David Medina.

Comparing overall the HBA tallies from 2007 to the latest (2007/2009):

                                            Outstanding         Acceptable          Poor

Justice Brister                        37.4/35.9             17.0/21.1            45.6/43.0

Justice Green                         36.8/25.1             32.6/31.1            30.6/43.7

Justice Hecht                         37.3/33.8             15.1/18.6             47.6/47.6

Chief Justice Jefferson           56.2/51.5             22.3/21.4             21.5/27.1

Justice Johnson                      37.6/31.9             27.1/31.9             35.3/36.2

Justice Medina                        41.2/21.9             30.0/27.6             28.8/50.5

Justice O'Neill                         59.3/52.5             26.2/28.5             14.5/19.0

Justice Wainwright                  47.5/40.3             27.4/25.6             25.1/34.1

Justice Willett                         31.8/27.4             22.9/28.8             45.2/43.7

As you can see, all justices lost ground in the "outstanding" category, with Justices Green and Medina slipping the most (11.7 and 19.3 percentage points, respectively).

We can't read too much into the straw poll.  It doesn't look at all scientific.  But neither does it look good — overall.

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1 Yes, we belong to the HBA — an artifact of starting the law practice in the Space City.

The Washington Post reports that the U.S. Senate Judiciary Committee will start hearings on the nomination of Sonia Sotomayor on Monday, July 13, 2009.

A statement on the Senate Judiciary Committee's home page says:

The confirmation hearings to consider the nomination of Judge Sonia Sotomayor to be an Associate Justice of the United States Supreme Court will begin on July 13, 2009.  The hearings will be webcast live online.  Further details about how the public and members of the press can attend the hearings will be announced in the coming weeks.

Feed-icon-14x14 What light on yon window breaks?

Justice Ruth Bader Ginsburg today stayed bankruptcy court orders that approved the sale of Chrysler to Fiat.  

Her Honor serves as the Circuit Justice who oversees matters in the Second Circuit.

The order (courtesy of SCOTUSBLOG) said:

UPON CONSIDERATION of the application of counsel for the applicants, and the responses filed thereto,

IT IS ORDERED that the orders of the Bankruptcy Court for the Southern District of New York, case No. 09-50002, dated May 31 and June 1, 2009, are stayed pending further order of the undersigned or of the Court.

SCOTUSBLOG offers commentary, too — noting, among other things, that the order has almost zero "legal significance".

Brent Benjamin 
Justice Brent Benjamin refused to recuse.

The U.S. Supreme Court split 5-4 today in favor of forcing a state supreme court justice to recuse himself from ruling on a case.  Caperton v. A. T. Massey Coal Co., Inc., No. 08-22 (U.S. June 8, 2009).

The plaintiffs had won a $50 million verdict and judgment against A. T. Massey Coal Company.

As the case headed upstairs, the CEO of A. T. Massey, Don Blankenship, spent north of $3 million to help lawyer Brent Benjamin win election to the West Virginia Supreme Court of Appeal against an incumbent.

Having taken his seat on the court, Justice Benjamin cast the deciding vote to overturn the $50 million award.

The majority set a "probability of bias" test for recusal under the due process clause of the fourteenth amendment.  Justice Benjmain failed the test, the majority held.

Along the way, the Court offered thoughts on judging:

Following accepted principles of our legal tradition respecting the proper performance of judicial functions, judges often inquire into their subjective motives and purposes in the ordinary course of deciding a case.  This does not mean the inquiry is a simple one.  "The work of deciding cases goes on every day in hundreds of courts throughout the land.  Any judge, one might suppose, would find it easy to describe the process which he had followed a thousand times and more.  Nothing could be farther from the truth."  B. Cardozo, The Nature of the Judicial Process 9 (1921).

The judge inquires into reasons that seem to be leading to a particular result.  Precedent and stare decisis and the text and purpose of the law and the Constitution; logic and scholarship and experience and common sense; and fairness and disinterest and neutrality are among the factors at work.  To bring coherence to the process, and to seek respect for the resulting judgment, judges often explain the reasons for their conclusions and rulings.  There are instances when the introspection that often attends this process may reveal that what the judge had assumed to be a proper, controlling factror is not the real one at work.  If the judge discovers that some personal bias or improper consideration seems to be the actuating cause of the decision or to be an influence so difficult to dispel that there is a real possibility of undermining neutrality, the judge may think it necessary to consider withdrawing from the case.

Caperton, slip op. at 12-13.

Justices Breyer, Ginsburg, Souter, and Stevens joined the opinion for the Court by Justice Anthony Kennedy.

Chief Justice John Roberts and Justice Antonin Scalia wrote separate dissenting opinions.  Associate Justices Alito, Scalia, and Thomas joined the Roberts dissent, in which the Chief Justice posed 40 questions to show how unworkable the "probability of bias" standard will prove in practice.  These include whether parties may take "discovery with respect to the judge's recusal decision".

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The NYT yesterday wrote about hard times at a Wall Street law firm.  The item stressed the firm's 108 years and its fall into layoffs, a victim (it says) of the slow down in deals.  The trend will likely go on for awhile.

But Blawgletter also senses that the fear of suing has started to abate.  Plenty of bad deals helped the economy take a dive last September.  Bad deal-making of course supplies the raw material for commercial lawsuits.  What has changed?  Companies now seem to feel strong enough to fight.

Today the Third Circuit joined eight other courts of appeals in holding that the "discovery rule" applies in cases under the Copyright Act.  William A. Graham Co. v. Haughey, No. 08-2007 (3d Cir. June 5, 2009).  The court also reinstated a jury's verdict that "storm warnings" hadn't put the plaintiff on notice of defendant's infringement as of the date it actually started.

Lockerbie Crash

The Second Circuit today vacated an order that forced a law firm to share part of its contingent fee with other firms.

The case involved claims against the Republic of Libya for its role in the mid-air bombing of Pan Am Flight 103 on December 21, 1988.  The crash near Lockerbie, Scotland, killed all 259 people on board and 11 on the ground.  Emery Celli Brinckerhoff & Abady represented six plaintiffs.  After many twists and turns, including passage of a law to allow suit against Libya, the massive litigation settled for $2.7 billion, or $10 million per plaintiff.

A committee that the district court created to oversee the cases demanded that each firm pay three percent of its fee to compensate the committee for its work.  The Emery firm refused, citing as an offset the value of its key role in lobbying Congress to pass the law that stripped Libya of its sovereign immunity for involvement in terrorist acts.  The district court ordered Emery to contribute the funds anyway.  Emery appealed.

The Second Circuit vacated the order.  Emery Celli Brinckerhoff & Abady LLP v. Plaintiffs' Committee, No. 06-4564-cv (2d Cir. June 5, 2009).  It held that the district court made several errors, including in its reliance on a settlement offer by Emery, and remanded the case for more work by the district court. 

But the panel rejected Emery's complaint that the district court should have let it (Emery) look at the committee's time records.  It said:

In assessing the award of attorneys’ fees, we have authorized the use of two methods: (i) the lodestar method, focusing on the hours expended in the case, and (ii) the percentage-of-the-recovery method, focusing on the value of the attorneys’ contribution.  Goldberger v. Integrated Res., Inc., 209 F.3d 43, 47 (2d Cir. 2000). The district court chose the latter approach. The time records accordingly had no relevance to the court’s determination.

Id., slip op. at 17.

The ruling strikes Blawgletter as at least unusual.  Courts that allow the percentage-of-the-recovery method often also run a "lodestar cross-check" to compare hourly rates times hours (the lodestar) with the percentage fee.  E.g., In re AT&T Corp., 455 F.3d 160, 164 (3d Cir. 2006) (noting that "we have recommended that district courts use the lodestar method to cross-check the reasonableness of a percentage-of-recovery fee award").  While we agree that courts may forego a lodestar cross-check, we wonder how that makes the lodestar irrelevant.  Perhaps the court could explain why, in the particular case, it regards a cross-check unhelpful.

Feed-icon-14x14 Happy Friday!

CM/ECF stands for case management and electronic filing system.  Federal courts use it to allow counsel for parties to file things — pleadings, motions, vacation letters, whatnot.  It also permits court clerks to post notices, including of hearings and trials, as well as orders and opinions.

The ease that CM/ECF newly affords has a dark side.  Now you can file papers a tick before midnight on the due date.  Which fact may not count as a lifestyle advance for lawyers and their office staff.

But Blawgletter means a different concern.  With great accessibility comes great responsibility — specifically to know about stuff that pops up on the CM/ECF docket.

The losing party in American Boat Co., Inc. v. Unknown Sunken Barge, No. 08-2166 (8th Cir. June 4, 2009), found out the hard way.  The district court granted the motion of the United States on American Boat's claim that the government negligently failed to maintain a navigable channel along the lower reaches of the Mississippi River.  American Boat moved to alter or amend the judgment.  The court denied it on November 5, 2003, making the judgment final.  But American Boat didn't react until four months later.

The Eighth Circuit held the appeal untimely.  It cited the district court's finding that American Boat's local counsel — in particular, a secretary in local counsel's office — did get timely CM/ECF notice of the case-ending order.  (Lead counsel hadn't signed up for CM/ECF.)  Although the secretary's computer showed no record of an automatic email notice from the CM/ECF system, the court found that she must have opened the email on a different computer.  That sufficed.

What have we learned?  Mainly that you'll have to climb a steep hill to get over the presumption that CM/ECF sent notice and that you got it.  But also that you can cut the risk of missing actual notice by registering more than one person for CM/ECF in each case.  Especially lead counsel in Greenville, Mississippi for a case in Missouri.

Reuters reports that the Antitrust Division at the U.S. Department of Justice wants to know if high tech firms colluded in their hiring practices.

None of the targets — including Google, Yahoo, Apple, Microsoft, and Genentech — has posted a press release.  But Reuters quotes a Genentech statement:

Our understanding is that a number of companies received this request for information from the U.S. Department of Justice. Genentech is cooperating and will respond to the request in due course.

The news agency adds that Google and Yahoo said the AD contacted them and that they would cooperate.

What can we make of the little info we have?  At least two things, Blawgletter thinks:

  • Technology outfits compete for the best engineers, scientists, and other scarce high-skill people.  A pact to limit that competition would likely violate section 1 of the Sherman Act. 

  • The AD under new chief Christine Varney can hardly wait to detect and undo cartels that have sprung up during the last several years of less-than-superhuman enforcement of antitrust law.

Some Silicon Valley types cite how often top talent has leapt from one place to another.  But we wonder whether the facts bear that out.  California law casts a gauzy eye on noncompetes and claims of trade secret theft, and we've heard more than once that the ease of stealing employees in the Golden State has helped start-ups and others rush new products to market.  That comes close to sounding like a motive for collusion.

The AD's Manual says of civil investigative demands that they "are the compulsory process tool of choice in civil antitrust investigations of potential violations of the Sherman Act".

But let's not prejudge anything.  Let's watch how this early move plays out.

Feed-icon-14x14 Do be a do bee.

The arbitration clause applied to "any controversy or claim arising out of or relating to payments" by Medco Health Solutions to Chelsea Family Pharmacy.  

Chelsea sued Medco under a state statute, for breach of contract, and for unfair business practices. 

Chelsea alleged harm from Medco's failure to reimburse Chelsea enough for its services and from Medco's enforcement of a contract provision that limits Chelsea's ability to compete.

Does the arbitration clause cover the dispute?  Yes and no, the Tenth Circuit held yesterday.

The failure to reimburse theory, the court concluded, did "relat[e] to payments" by Medco.  But the gripe about limiting competition didn't.  That all three claims alleged both theories of harm didn't matter.  One kind of harm but not the other fit within the clause.  Chelsea Family Pharmacy PLLC v. Medco Health Solutions, Inc., No. 08-5103 (10th Cir. June 2, 2009).