Google Books Settlement Nixed by Judge Chin - But Why Does He Rule Here? What Happened to the Jurisdiction of the NYSD Trial Court Bench?

The Google Books Settlement Agreement that required court approval didn't get it.  Today, Judge Denny Chin of the U.S. Court of Appeals for the Second Circuit (an Obama appointee coming out of the New York Southern District Court) released his decision in a written opinion that can be read online at the Southern District of New York's website.

Go here to read the Google Books Settlement Agreement Order of March 22, 2011, in its entirety.  

Apparently, Judge Chin ruled on the case since it appeared before him at the lower level trial court when he presided as a judge in the New York Southern District - though he's now in a new position on the appellate bench.  He doesn't work there anymore. 

Nevertheless, he's signed the Opinion, alone, as "sitting by designation," and ruled in a way that impacts the trial court's docket by keeping this huge case on its trial calendar.  The Order includes a setting for the next motion hearing, for example.   (I've heard of a district court judge sitting by designation on a higher appellate bench, but this is the reverse of that situation: it's an appellate judge jumping down to the lower tier to make a ruling.) 

Is it just me, or shouldn't the trial court have retained jurisdiction and the judge currently setting on the district court's bench be the one to issue this opinion - or at least signed the thing? I'm sure that the phrase "sitting by designation," is supposed to answer all my questions here. 

But sitting down here in Texas, I'm thinking how curious it is for a judge on the appellate bench to make this sort of impact - on the trial court he's no longer with, as well as all the parties to this settlement deal.  After all, this was a negotiated deal between all the parties. 

Plus, in November 2009, a Court Order gave a temporary thumbs-up to the settlement (see it here).  On that basis, Google has moved forward, relying upon that okey-dokey.  That Order was signed by Judge Chin. 

And in that November 2009 Order's last paragraph, signed by Judge Chin (see paragraph no. 30), it states:

The Court reserves jurisdiction over the subject matter and as to each party to the Amended Settlement Agreement ....



I would argue that when Judge Chin accepted the appointment by President Obama and left the trial court bench for a new job on the appellate court, one of the things he left behind was the Google case.  Whoever replaced him on that trial court bench got that open matter -- as reflected in the language of the November 2009 Order signed by Chin -- and that there's a big jurisdictional argument to be made here. 

In other words, where does Chin have jurisdiction to rule?  Sitting by designation?  Is there an Order or something that gives him continued authority here?  Where is it?  Why isn't his power to rule referenced in today's ruling? 

Japan News, How to Help Japan: Say What U Want About Google, Google is a Big Help Today

Hate Google, Love Google - there's no debate that Google is really johnny-on-the-spot today.  Google has put together a great page on all things dealing with Japan and the nuclear disaster, the earthquake aftermath, and the effects of the tsunami.

Go here to check it out. 

Under the heading "Google Crisis Response," the folk at Google have put together all sorts of links and info blurbs (available in Japanese, English, and other languages) that do many things:

1.  tell you how you can help those suffering in Japan;
2.  help you locate those who are missing after the Japan earthquake and tsunami;
3.  give you the latest news on the Japanese nuclear radiation dangers;
4.  show you maps of Japan and the surrounding impact site areas;
5.  give you phone numbers of agencies to help in Japan and here in the US;
6.  allow you to follow along on tweets coming out of Japan in realtime;
7.  give you forums so you can chat with others about the Japan nuclear crisis, or the Japanese tsunami/earthquake;
8.  provide you with videos of what's happened and what's happening in Japan;
9.  give you a satellite viewpoint of the area impacted in Japan; and
10. give locals info on rolling blackouts throughout Japan, refugee sites, etc.

Good for Google.  This is a wonderful and amazing contribution on their part.  Helps us all.

Charlie Sheen Lawsuit - Following the Paper

One thing's for sure:  all the media hoopla surrounding Charlie Sheen is bringing with it lots of legal lessons for those who want (or need) to know something about the American legal system and how it works - there's lots to follow for lawyers and non-lawyers alike.

First, there's all the postering and rumor. 

That started a couple of months back for Sheen: I'd guess around Christmas-time, really.  Same thing for lots of lawsuits: each side starts getting the word out, putting the best light on the situation from its own perspective.  This is true for family law cases as well as big business disputes.  And if you think that lawyers aren't involved in the spin this early in the program, not true.  If they've been hired on at that point, the attorneys will have a say in what's going on here.

Second, there are those nasty, long, and formal letters from lawyers.  Notice.  Demand.  Sometimes, they are required by law.  Here in Texas, for example, there are several kinds of lawsuits that cannot legally proceed until a notice letter has been sent out, giving an attempt to resolve the dispute before any lawsuit is filed down at the courthouse. 

Did we see them in the Charlie Sheen coverage?  Why, yes, we did.

Here's the notice letter from Sheen's people. 
Here's the response letter from CBS/Warner's lawyers.

Having read both, I have to admit that while both are well-written, I liked the response letter better.  More short sentences.  Less Big Bad Wolf stuff.  And, nice how they listed all those links at the end, without cross-referencing them to specifics within the correspondence.  I liked that. 

After you've had attorneys throwing punches on paper like this, you know there's two ways to go:  negotiate a settlement or go to war.  We don't know that there were any real negotation attempts here.  It's been my experience that attorneys will call each other up here, as unlikely as it may be that anyone's willing to resolve things. 

Lawyers know their opposing counsel: they've had them on cases before, and they will again.  You call up, you tip your hat at the minimum, it's just common courtesy before you strap on the guns.  "Hey, bud, how's the wife and kids?" "Fine, yours?" "Fine." "Okey dokey, then." 

If you aren't talking, then you're walking.  As in, down to the courthouse to file your pleadings.  Sometimes, there's a race on who's first - because there's an advantage to being plaintiff.  You get to talk first.  You get to talk last.  Big deal. 

Back to the Sheen Example of Civil Litigation.

Sheen's lawsuit has been filed.  No race here -- well, sorta.  CBS technically filed first with the arbitration forum according to their letter; looks like Sheen's gonna fight that arbitration clause. 

Here's the pleading if you want to read it, thanks to TMZ.

As for the pleading, well done.  Pretty.  Lots of causes of action, lots of great adjectives.  Well-written.  Well played.

Charlie Sheen may be addicted to something or not.  He may suffer mental health issues or not.  But Charlie Sheen and his lawyers are doing a stellar job so far of positioning him in this controversy, and using trial by media to their advantage. (Potential jurors will remember those negative drug tests, for example, as well as the "I'm ready to go to work" interviews, and the "I'm fighting for the crew, too" statements.)

Sheen's looking like a good team player on this legal team and that's a good client to have. (#winning.)

Charlie Sheen Needs to do a Hair Follicle Test. Here's Why.

It's nice to see that Charlie Sheen is gearing up for the lawsuit we all see coming by having Radar Online folk witness his blood and urine drug tests.  They'll be great witnesses at trial to confirm that these tests weren't rigged and that he did, indeed, test and come out clean.

Well, all they can really report is that it was his blood and urine that didn't test positive for drugs at that moment.  

From my years representing kids in the local CPS Court, I know that blood and urine tests aren't that reliable.  There's stuff out there that people know to take that mucks with the results, gives false negatives.  Some drugs just don't stay in the system that long, as well.  There's all sorts of info online telling you how to beat a drug test, it's not some big secret and it doesn't cost a lot, either. 

So before we give Charlie Sheen this big "clean and sober" label, it would be nice to see a negative result from a hair follicle test. 

What's a hair follicle test?  It tests the hair for drugs.  Kinda like the rings in a tree trunk, hair keeps a record going back about 90 days on what the body has injested.  Cocaine and other drugs will leave their record in the hair.  (Which is why many of us thought Brittany Spears shaved her head way back when -- because she was facing a potential hair follicle analysis in the child custody fight.)

Charlie Sheen is telling the media he's "clean and sober." 

Radar Online has published the letter that Charlie Sheen's law firm has sent to CBS and Warner Brothers, claiming that Mr. Sheen is "clean and sober."

Well, offer up that hair follicle test and then I think you can use "clean and sober" with some realistic expectation of acceptance among some of us.  In fact, it's curious by its absence and suggests that anyone who went through the detail of writing that 5 page letter to CBS et al. might have considered the hair follicle analysis and decided against it.   

You know that these potential defendants are wondering how to get a hair follicle test done asap (or they should be).  The sooner the better.  

By the way, I love how this letter concludes with the phrase, "Govern yourselves accordingly."  Read that and chuckled.  Such posturing.  And, after such a nicely written notice letter.  Just hilarious.

I want the tee shirt. I have already started using it with the dogs. "Here's your chew bones.  Govern yourselves accordingly."  Hilarious, hilarious. 

Govern yourselves accordingly, now.