Related: Bashman Archive

Last week, a three-judge panel of the 2nd U.S. Circuit Court of Appeals decided a challenge to the class action settlement of freelance authors’ copyright infringement claims arising from the unauthorized electronic reproduction of their work. A majority on the three-judge panel held that the settlement had to be rejected, because the federal district court lacked subject-matter jurisdiction over claims alleging the infringement of unregistered copyrights, a category that constituted the vast majority of the claims covered by the settlement.
Shortly before the 2nd Circuit was to hear oral argument in the case, two of the three judges on the appellate panel realized that they likely were members of the plaintiff class whose copyright infringement claims the settlement sought to address. Those two judges requested the advice of the Committee on Codes of Conduct of the Judicial Conference of the United States concerning whether they had a duty to recuse.

The judges’ inquiry to the committee, which consists of 15 federal judges, explained that apparently only two of the 2nd Circuit’s judges — an active judge who was already on this three-judge panel and a senior judge who was not — were not members of the plaintiff class. The purpose of providing this information, presumably, was to alert the committee that it would be nearly impossible for the 2nd Circuit to assemble a panel whose judges did not labor under this recusal-related concern.

The judges’ inquiry also explained that they had informed the parties at oral argument that they were waiving all rights to recovery based on their membership in the plaintiff class. After oral argument, those two judges also determined that they in fact had no right to recovery because they had failed to file a claim form within the required time frame.

The Codes of Conduct Committee, in a six-page letter whose reasoning struck me as less than convincing, responded to the judges’ inquiry with the conclusion that they had the obligation to recuse. The committee concluded, in essence, that, due to the judges’ substantial work on the case, they could not continue to serve as judges in the matter — even though they had divested themselves of their interest as soon as it came to their attention.

Last week, on the same day that the three-judge panel issued its decision ordering the federal district court to throw out the settlement due to a lack of subject-matter jurisdiction over the bulk of the claims that the settlement intended to cover, the two judges who were concerned about their need to recuse issued a separate 16-page opinion
explaining why they chose not to recuse, in disagreement with the Codes of Conduct Committee’s recommendation. Attached to that 16-page opinion is the committee’s six-page letter setting forth the basis for the committee’s recommendation.

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