MVA Litigation

   It ain’t over ‘til the fat lady sings…or a federal court withdraws its controversial opinion.  Although infrequently, courts do withdraw their opinions and several federal court opinions of interest have been withdrawn since being issued this year.  No doubt these opinions addressed hot topics, leading to controversy over the courts’ initial opinions and prompting the courts to wipe the slate clean for reconsideration.

    Back of the Line Veterans:  Veterans’ rights could not be a more poignant and timely issue and it is one that is drawing a lot of attention.  On November 16, the Ninth Circuit Court of Appeals withdrew its initial opinion which held that veterans’ due process rights were violated by the long wait times associated with compensation and treatment for post traumatic stress disorder.  The case will be reheard en banc.

   Cable TV Class Action:  The Ninth Circuit’s initial thoughts about the class action antitrust suit brought against media giants including NBC, DirectTV, The Walt Disney Co., and Time Warner Cable, Inc.:  "This case is a consumer protection class action masquerading as an antitrust suit." See the Court’s June 3, 2011 opinion which upheld dismissal of the class action.  However, on October 31, the court withdrew its initial decision after a barrage of petitions by plaintiffs and amicus organizations to reconsider its decision, several of which are discussed here and here. The panel will be reconstituted to reconsider the decision. 

   Show Me the Metadata: Where do E-Discovery and FOIA requirements meet?  In a decision rendered earlier this year by a District Court Judge for the Southern District of New York, metadata was deemed to be an integral part of electronically stored information that the government was required to produce in response to a FOIA request.  The court has since withdrawn its opinion, which it recognized was not based on a fully developed record.  Although withdrawn, the court’s opinion is expected by some to impact decisions moving forward: click here for example. 

   Betty Boop Unprotected:  For six months this year, Betty Boop was exposed and not subject to trademark protection according to a Ninth Circuit opinion issued in February.  However, on August 19, that opinion was withdrawn and simultaneously superceded by a new opinion which remained silent on the issue of whether the Betty Boop image could be a protected trademark.  The original opinion received what has been described as a “firestorm of criticism,” see here.

   Courts rarely withdraw their opinions.  Although apparently acknowledging that it got it wrong the first time (by withdrawing its opinions), the Ninth Circuit did not provide us with an explanation or standard that it used in determining that withdrawal of its opinions was the appropriate course of action in these three cases.  We at least know from the Ninth Circuit’s Rule 35-1, that it considers rehearing en banc appropriate “when the opinion of a panel directly conflicts with an existing opinion by another court of appeals and substantially affects a rule of national application in which there is an overriding need for national uniformity.”  But the court is only rehearing the veterans’ rights case en banc, not the other two cases.  Could a “firestorm of criticism” be the subjective standard used by the Court?  The Southern District of New York, by contrast, expressly withdrew its opinion “in the interests of justice” upon learning that it was based on an incomplete record.