No judicial disqualification in freelance class-action case

This is not a civil rights case, but it's too interesting to ignore. A class action lawsuit filed on behalf of freelance writers suing certain publishing companies found its way to the Court of Appeals, where the judges on the panel realized they have a slight personal interest in the outcome, probably since one of the defendants is West Publishing, which publishes a variety of legal materials. The Second Circuit tackled this potential ethical issue head-on, determining that two of the judges ruling on the settlement can decide the case on the merits.

The class action alleged that freelance writers were not being sufficiently compensated when publishers later reproduced their material without their consent. The Supreme Court in 2001 addressed this issue in New York Times v. Tasini, 533 U.S. 483. The district court approved the settlement but, since some class members objected, the case went to the Second Circuit. That's where things get interesting.

The Court of Appeals, like most courts, operates without much sunlight until it issues a ruling. We don't know what the judges say to each other or how much difficulty the judges had in reaching a decision. But in Re: Literary Works in Electronic Databases Copyright Litigation, issued on November 29, Judge Walker explained why the Court determined to reach a decision in this case even though the judges have a small financial stake in the outcome of the case. Judge Walker wrote:

On March 6, 2007, after extensive pre-argument preparation, Judge Winter and I realized that there was a high probability that we held copyrights in works, such as law review articles and speeches, reproduced on defendants' databases. At oral argument on March 7, we publicly stated in open court that we would forego any financial interest in the settlement that we could possibly have now or in the future. No party brought to our attention that, because the claims period had expired without either of us asserting a claim, we were at that point ineligible to recover anything in the class action in any event.

The Court then asked the Committee on Codes of Conduct of the Judicial Conference for an opinion on whether Judges Winter and Walker should recuse themselves from the case. The committee answered in the affirmative and said they should not serve on the panel. Disagreeing with that opinion, Judges Walker and Winter decided to rule on the case anyway, reasoning that the law governing recusal is "at least ambiguous as to whether it should apply to judges who are parties to a lawsuit simply because they possess a small financial interest in one of the parties or in the subject matter of the litigation."

In ruling that recusal is not necessary in this case, the judges noted that most of their colleagues on the Second Circuit and probably all members of the Supreme Court would have at least some financial interest in a case like this, and "a reasonable person would not have know that we were class members prior to March 6, when our pre-argument preparation led us to that conclusion." Moreover, the judges told the parties in open court that they were going to forego any rewards from the class action settlement. The decision on the merits, also issued on November 29, is here.