Bench Memos

Opening Brief Filed in Moonlight Fire Appeal

Last week the defendants filed their opening appeal brief in the Moonlight Fire case, which concerns the federal government’s disastrous attempt to extract as much as a billion dollars from several companies for their alleged involvement in a California wildfire. As I’ve written before, the government’s case was joined at the hip with a case advanced by the state of California in state court. The state case took a turn for the worse in early 2014 when a state trial judge tossed out the state of California’s allegations and sanctioned the state because of misconduct by government investigators and the existence of an undisclosed, off-the-books slush fund. Other happenings raised ethical concerns and undermined confidence in the merits of the governments’ cases.Although Sierra Pacific, the lead defendant, had agreed to settle the federal case in the meantime, recently-revealed documents and the state court’s findings cast such doubt on the fairness of the federal settlement that, they argued, the trial court should reject it as a fraud on the court.

The trial court rejected their arguments after a contentious submission by the government, but I said back then that I was doubtful that the trial court had applied Ninth Circuit case law properly. That decision and others are now on appeal before the Ninth Circuit, where the defendants attracted an unusual amount of amicus support from other state AGs, Cause of Action, and even retired state fire investigators.

Anyway, one part of the Moonlight Fire case that is just now starting to receive attention is the social media issue, which appears to be an important part of the appeal. Recent years have seen numerous examples of lawyers, judges, and jurors getting in trouble because of injudicious (pun intended) use of social media. This case may turn out to be yet another one of those, since according to the defendants, the district judge was posted a link about his ruling in the Moonlight Fire case while the parties still had business before his court. In addition, it appears that the district judge was following the U.S. Attorney’s Office that had been litigating the case and had tweeted about the case. As we’re learning, it’s easy for judges to go wrong in the use of social media during litigation, so if that turns out to be a problem in this case, it won’t be the first time.

Jonathan KeimJonathan Keim is Counsel for the Judicial Crisis Network. A native of Peoria, Illinois, he is a graduate of Georgetown University Law Center and Princeton University, an experienced litigator, and ...

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