I would not want to be U.S. District Judge Beverly Reid O’Connell of the Central District of California who became a federal district judge in April of this year. She is now confronted with the problem of whether she should rule that her Ninth Circuit Chief Judge, Alex Kozinski, is wrong and that his objection to a class-action settlement must be denied. Read below for the details as provided to me in an e-mail from a thoughtful correspondent:
“Alex Kozinski, the chief judge of the 9th U.S. Circuit Court of Appeals, made a rare move Monday in a federal courtroom in Los Angeles, speaking as an objector to a proposed class action settlement against an auto company. Kozinski and his wife Marcy Tiffany are 2011 Nissan LEAF electric car owners, and therefore members of a class alleging defects to the company’s lithium ion batteries. Representing themselves, Kozinski and Tiffany filed a scathing objection last month and added more arguments in a document last week. ‘The proposed settlement is a sham, benefiting only class counsel, named plaintiffs and Nissan,’ Kozinski wrote. ‘Class members are getting absolutely nothing of value, while having their rights abrogated.’ In a hearing Monday in front of U.S. District Judge Beverly Reid O’Connell [C.D. – CA], the judge heard the objections directly from Kozinski. She took the matter under submission.”
See also Alison Frankel, Lawyers’ nightmare: When 9th Circuit Chief Judge Kozinski is class objector, Reuters (November 20, 2013).
Speaking of Chief Judge Kozinski, let me tell you a story about the one and only time I “appeared” before him. Between 1982 and 1985, Judge Kozinski served as the Chief Judge of the U.S. Court of Claims. I am pretty sure that my case landed on the judge’s docket soon after his appointment at the ripe old age of 32. I was representing a small country bank. We sued what was then called the Farmers Home Administration (FmHA) over some cattle. Our claim was based upon a hyper-technical reading of Nebraska’s weird version of a section of the Uniform Commercial Code dealing with livestock. The facts were very complicated.
The government filed a motion for summary judgment. The matter was briefed, and the judge ordered oral argument. He kindly allowed me to appear by telephone so I would not have to fly to Washington. The government’s cocky lawyer went first. I listened as Judge Kozinski, speaking with a heavy accent, utterly destroyed the argument made by the government’s counsel. Whether factually or legally, Judge Kozinski had the government’s lawyer on the ropes. When it came my turn, I was sure I would win because the judge had a good understanding of the facts and appeared to have bought our hyper-technical argument hook, line and sinker. Boy, was I wrong. The judge proceeded to make an exquisite argument, far different and better than the one advanced by the government, why my banker could not prevail. I scrambled, and danced and bobbed and weaved, but to no avail. Quite correctly, we lost.
When I got off the phone, I walked into my partner’s office. I told, Ed, my partner that I had just appeared before a judge who was the smartest SOB that I had ever encountered or ever feared to encounter in the future. That was true, I said, even though I had trouble understanding him. I concluded our conversation by telling Ed that “I will never forget that Polack.”* And, as this post proves, I haven’t.
And so it is that I have great empathy for Judge Beverly Reid O’Connell as she endeavors to deconstruct what I am sure was a brilliant argument by the Chief Judge of the Ninth Circuit. As a federal trial judge with less than a year’s experience, she is definitely between a rock and a hard place.
*Don’t start on me. Yes, I know Judge Kozinski was born in Bucharest, Romania. Therefore, he isn’t a real Polack. By the way, if you don’t like the word “Polack” that’s your problem. Maybe you like “Polak” better. I grew up with a bunch of Polacks. One of my dear friends was Pete . . .ski. He didn’t kick my teeth out when I referred to him as “the Polack,” so long as I didn’t throw a punch his way when he introduced me to new girls as “Dick Head.” (“Richard”=”Dick” and “Kopf”=”Head” in German.) Pete . . .ski particularly endeared himself to me and our entire senior class in high school when he did the monkey to the national anthem during an all-school convocation. Hands down, that was the funniest thing I have ever witnessed. Pete . . . ski went on to make a career in Navel (damn, I meant “Naval”) intelligence–pretty good for a Polack. Lastly, and sincerely, for a serious look at the “P” word see Polack, A Small Minded Movie.
PS. Special thanks to a bankruptcy judge, who shall remain nameless, for the tip on the doings in the Ninth Circuit.