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Bench Memos

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Judge Kozinski’s Personal Objection to Class-Action Settlement



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Alison Frankel of Reuters reports that Ninth Circuit chief judge Alex Kozinski and his wife, Marcy Tiffany, have filed a brief in their personal capacity objecting to a proposed final settlement of a class action filed against Nissan over alleged defects in the battery powering Nissan’s LEAF electric car. As purchasers of a Nissan LEAF, Kozinski and Tiffany are members of the class. Kozinski himself was the only objector to appear in person at Monday’s hearing in federal district court in Los Angeles.

I don’t begrudge at all Kozinski’s acting to enforce his personal rights. I do wonder, though, whether the federal district judge handling the matter, Beverly Reid O’Connell (Central District of California), might be obligated to disqualify herself and whether a judge from outside the Ninth Circuit might need to be recruited to handle the matter (and a panel from another circuit to decide any appeal).

I’m not clear on the administrative authority that Kozinski, as Ninth Circuit chief judge, has over O’Connell (and other district judges in the circuit). For example: Is he involved in deciding misconduct complaints brought against her? Does he have the authority to invite her to sit on Ninth Circuit panels? Or on the Ninth Circuit Judicial Council?

There are also potential recusal issues for Kozinski arising out of his brief. If O’Connell rules on the matter, will Kozinski have to recuse himself from appeals of her decisions in other matters? Given the various positions he takes in his brief, will he have to recuse himself from appeals involving other class-action settlements?



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