2nd Circuit Explains Recusal Refusal in Writers Case
A federal appeals court is explaining why it ruled in a class action suit seeking reimbursement for stories published in electronic databases, even though two panel members are likely members of the plaintiffs class.
The explanation was issued yesterday after the New York City-based 2nd U.S. Circuit Court of Appeals scuttled an agreement between freelancers and publishers in the class action suit. The 2-1 court ruling in the underlying dispute said the courts had no jurisdiction because most of the class members had failed to register their stories with the U.S. Copyright Office, a requirement for a claim, the New York Times reports.
In a separate opinion (PDF), two members of the 2nd Circuit panel say they chose to decide the case even though a Judicial Conference committee had recommended recusal. The opinion pointed to practical considerations—including the fact that most appeals judges are potential class members, including, in all likelihood, every member of the U.S. Supreme Court.
The judges, John Walker Jr. and Ralph Winter Jr., said they learned shortly before oral arguments that they were potential plaintiffs because some of their works, including law review articles and speeches, had been reproduced in the defendants’ databases.
They had agreed to forgo any financial interest in the settlement and were ineligible to recover in any event because they did not assert claims by the deadline, which came before the case was assigned to them. Based on the circumstances, recusal was not warranted, their opinion said.
“For better or worse, many lawsuits have become exercises in mass aggregation, and judges must confront new issues related to the propriety of their participation in such cases as they come before them,” the opinion said. “We must balance our duty to appear impartial against several practical considerations, including the availability of other judges.”
