Saturday, October 24, 2015

A Comment on Noah Feldman on Judge Gordon Quist

A few days ago, a panel of the Ninth Circuit granted reconsideration in an important trademark infringement case about Amazon's habit, when a customer searches for a brand of product Amazon doesn't carry, of returning search results containing clearly labeled competitor products.  In July, the Ninth Circuit held, 2-1, that there was a genuine issue of fact as to whether Amazon's search results created a likelihood of confusion; on Wednesday, they granted reconsideration and held 2-1 that there was no genuine issue of fact on likelihood of confusion.  Judge Gordon Quist, a Michigan district judge sitting by designation, switched his vote but didn't write to explain why; the author of the original majority opinion, Judge Bea, became the lone dissenter, while the original dissenter, Judge Silverman, became the author of the majority opinion.  Judge Silverman's majority opinion cites no new facts or law; apparently Judge Quist was convinced by Amazon's briefing and/or Judge Silverman's excellent dissent (which persuaded me when I read the original opinion in July) that he was wrong the first time.  

As far as I can see, there's nothing remotely troubling about this.  He's probably right.*  He has no more duty to write a separate opinion explaining his changed vote than he had a duty to write a concurring opinion explaining his initial vote.  And if anything, he should be praised for the attention he evidently gave Amazon's motion for reconsideration, when such motions are routinely denied without much thought, and for his willingness to change his mind in a high-profile case for what apparently seemed to him like sound legal reasons.

Harvard Law professor Noah Feldman, however, filing his near-daily column at Bloomberg View, comments that Judge Quist's switch is an occasion to think about whether allowing district judges to sit by designation on circuit panels is a good idea, particularly when those judges are Judge Quist:

Hearing cases in Pasadena, California, where the Amazon-MTM case was argued, isn’t the worst form of work-related travel for a semiretired Michigander. Quist became a judge in 1992, and it seems churlish to deny him a little fun in the sun after almost a quarter-century in public service. But it's worth using his flip to ask whether this kind of designation is really such a good idea. Little in Quist’s judicial career or in his legal career before that, mostly in Grand Rapids, Michigan, can have prepared him for the stakes of this Amazon case. His final decision may be correct, or maybe his first one was -- but we will probably never know why he changed his mind. 
Earlier in his column, Feldman notes that Quist is (a) "a 78-year old partly retired judge," (b) "was born in 1937", which figures (2015-1937 = 78) (c) is a judge from the Western District of Michigan, and that (d) the Ninth Circuit has a very large geographical jurisdiction.  He also notes that most judges who sit by designation are senior judges.  The general idea seems to be that Judge Quist is too much a Western Michigander, too lowly a district judge from too out-of-the-way a jurisdiction, and possibly too old, for the fun in the sun of hearing high-stakes Ninth Circuit trademark cases.  (To be fair, Feldman's unclear on the point of his repeated references to Quist's age.  The point may only be that it is understandable that Quist would want to enjoy his semi-retirement on the bench in Pasadena.)

I have never met Judge Quist, though prior to today I had read one or two of his opinions and thought them rather good.  But reading Feldman's column, the suggestion that "little in Quist's judicial career or in his legal career before that . . . can have prepared him for the stakes of this Amazon case" struck me as intuitively wrong.  (I'll bracket Feldman's ambiguous concerns about Judge Quist's age, though no less than 13 judges on the Ninth Circuit, four of which still enjoy active status, are as old or older than Quist, including Judge Bea, a member of the Amazon panel.)  Even if one were to throw out Quist's 23-year career as a district judge and 30 years of private practice as insufficient experience to decide a high-stakes trademark case (one which virtually anyone who shops on the internet could have a reasonably informed opinion on), what about all the other circuit cases where Quist sat by designation?  Was Amazon his first?

When one looks into that, one finds that Judge Quist has sat by designation so often that he has more experience as an appellate judge than some circuit judges with several years experience.  (Repeated invitations to sit by designation on circuits where many district judges like to sit by designation are usually a sign, by the way, that the Chief Judges of those circuits think you know what you're doing.)  Judge Quist has written 52 circuit opinions for the Sixth, Ninth, and Eleventh Circuits, exactly half of which are binding, published precedents in those circuits.  His most-cited appellate opinion is a case about pleading securities fraud that's been cited 1,752 times; his third-most-cited appellate opinion (849 citations), relevantly, is a copyright and trademark infringement suit against New Line Cinema for pilfering a script idea for an Adam Sandler comedy that was #2 in box office its opening week.  He's written several major and complex opinions on ERISA, a field which everyone finds challenging.  He's sat on Ninth Circuit panels that have decided whether video game manufacturers' uses of college players' likenesses are protected by the First Amendment, whether school uniforms with mottos constitute compelled speech, and whether Pickering or Garcetti controls untenured state university professors' First Amendment claims.  

As a district judge, Judge Quist decided one of the many post-Hobby Lobby suits challenging the religious accommodation to the ACA's contraceptive-coverage requirement under RFRA, and has been affirmed in that case by the Sixth Circuit in one side of a circuit split that's about to generate a cert grant.  He rendered the trial-level decisions in a tax case that went to the Supreme Court.  He has issued opinions in patent infringement cases that have been affirmed by the Federal Circuit.  He decided the celebrated students' fraud action against Cooley Law School, and was affirmed there too. In the field of trademark, Judge Quist decided a suit against Taco Bell for allegedly misappropriating their famous talking TV-commercial chihuahua.  He's decided any number of brand confusion cases, including one against Countrywide Financial, and he decided a false advertising suit between the manufacturer of Ensure (the nutritional supplement beverage) and one of its biggest competitors.

Obviously, Feldman looked into none of this.  It would appear that the research he did to reach the conclusion that little in Quist's career could have prepared him to decide Amazon was limited to looking up Quist's age, year of birth, what district he sits in, and what city he practiced in before becoming a judge.  While I agree that it's worth asking whether allowing district judges to sit by designation is a good idea,** it's obvious that Judge Quist had sufficient experience to decide Amazon

* For what little it's worth, I agree with Judge Quist this time around.  When an Amazon customer searches for, as was the case here, an MTM Special Ops watch, they get results of similar watches made by other manufacturers.  The results prominently display who makes each watch, and not one of the watches has "Special Ops" in its name.  The Luminox Men's Black Ops Watch and the Chase-Durer Men's Special Forces Black Ionic-Plated Underwater Demolition Team Watch is as close as it comes.  If someone is choosy enough to look for an MTM Special Ops watch, I imagine they understand that a Luminox Black Ops Watch or a Chase-Durer Special Forces watch are different watches made by different manufacturers.  Of course, the case would have been easier if Amazon said something like, "We found no results for your search, but here are some similar items."  But I doubt that trademark law requires a statement of that kind, and note that such a statement assumes the customer was only looking for MTM Special Ops watches ("We found no results for your search"), rather than using the known features of e-commerce search engines to find that item and similar items.

** My take here is that, while district judges sitting by designation are frequently somewhat overmatched by the circuit judges they sit with, they bring a trial-level experience to appellate work that can be quite useful in some cases, and that the appellate experience they obtain gives them a new and extremely valuable perspective on their regular work. 

I'd also note, in fairness to Feldman, that he's hardly alone among legal elites in holding somewhat snobbish views about district judges sitting by designation.  Two years ago, Paul Clement had a memorable exchange with Justice Sotomayor about the value of district-judge-authored circuit precedent:

JUSTICE SOTOMAYOR: Let -- look, I think if we take your argument to its logical conclusion, what you are telling us is, do away with the Second Circuit's Tropiano decision, and the large progeny of cases that come from it...

MR. CLEMENT: Well, a couple of things, Justice Sotomayor. I went back to the Tropiano case because it is sort of the progenitor of this whole line of Second Circuit cases, and I noticed two things. One, I noticed it was written by a district court sitting by designation. So I mean, I -- I don't mean anything by that other than this is not Marbury. Second, I would say that the second thing I noticed is that the debt --
JUSTICE SOTOMAYOR: Oh, I think when I sat as a district court judge, I would have been insulted by that. (Laughter.) 
MR. CLEMENT: Well, it's not -- it's a good thing you're no longer sitting in that capacity, Your Honor --
JUSTICE SOTOMAYOR: Okay. It really is, for you.

MR. CLEMENT: -- because I -- I certainly mean you no offense. You could write Marbury here.


  1. Should there be some standard in intervening law or fact or "something big" to warrant reconsideration of an appeal? And if there should be something else, don't you think there ought to be some burden of production of a vote-switcher to explain, be he or she district, circuit, or court of international trade? The Masushita v Epstein case that went up to SCOTUS in 1996 was decided on remand by the Ninth Circuit in 1997 by Judge Norris just before he retired from the bench. As I recall, the motion for reconsideration was granted and the dissenting judge convinced another panel-mate to switch votes when Norris was replaced, granting the motion, withdrawing the panel opinion, and doing the same 2-1 to 1-2 switch. Poor form, perhaps, but I do recall that the vote-switcher felt some obligation to write at least a short explanation, which I think he did. I think it's weird enough that some duty to explain requires a short opinion, even if it's just to say I've had further time to think and made a mistake. Further complicating things is what you think the whole role of en banc is. Maybe "easier" reconsideration motion grantings would reduce the en banc docket?

    1. I think that the explanation for the majority's judgment, which is the bottom line of granting reconsideration, is in the new majority opinion, which the vote-switcher doesn't have to write. When you say there needs to be an explanation for the change, e.g, "I've had further time to think and made a mistake," you're saying that, above and beyond the reasons for the new judgment, there has to be some kind of explanation about the internal decision-making process of the reconsidering judge that led him to change his mind. And to me that seems besides the point, somewhat intrusive, and potentially embarrassing. We know in this case that Judge Quist used to agree with Judge Bea and now agrees with Judge Silverman, who more or less refurbished his dissent and made it a majority opinion. Does he have to give the legal reasons he thinks Silverman is right and the dissent is wrong? Well, the majority opinion says that for him; he joined it in full. He could say those legal reasons in his own words, but he'd just be repeating himself in a sense. So the something more you want is some story about how he came to change his mind - e.g., "I talked to my new law clerk and he says that when he searches for a product that Amazon doesn't have, he never gets confused by the search results for other products that come up," or, "when I read Amazon's motion for reconsideration, I became convinced that the opinion I'd joined contained some seriously flawed reasoning." But why does that matter? Why do we need to pull the curtain back on the decision-making process in this instance? Normally we only ask for legal reasons, not an account of the process by which a judge made up his mind.

    2. Fair enough, and this sharpens my concern, which is that I guess I fret that reconsideration process is not supposed to be a do-over to see if you're lucky enough to have a vote-changer on the panel. So I have no idea if I have any foundation in doctrinal law, but I want there to be some chilling incentive on parties filing reconsideration motions all the time, esp. at the appellate level. Given the underlying concern I have, I want some burden on the vote-changing judge. New law/facts is an easy scenario and doesn't worry me. Maybe even new arguments or something you think the panel missed. But surely the majority read the dissent's opinion the first time around. If so, why is this not worrisomely unsettling to notions of finality?

    3. It is true that cases say something like what you're saying, including Ninth Circuit cases. See Anderson v. Knox, 300 F.2d 296 (9th Cir. 1962), which made an appearance in a fact-based Ninth Circuit rehearing a few months ago, and suggests that rehearing is limited to controlling matters of law or fact that were "overlooked." Clearly that standard wasn't adhered to here; the majority didn't overlook the dissent, as you say, or fail to respond to some bit of fact or law in it. FRAP 40 talks about points of law or fact a petitioner for rehearing believes the court overlooked *or* misapprehended, which seems broader. I'm agnostic about the correct standard, and I agree that if the standard is things overlooked, plus new facts/law, an opinion granting rehearing should talk about what was overlooked or what was new. If it's a matter of "misapprehension," broadly understood, I don't know that a new opinion need do more than state the court's new apprehension. I am not sure, though, that I find a broad reading of FRAP 40 "worrisomely unsettling to notions of finality." It's not as if these motions for rehearing can be filed a year after the fact.

  2. Clueless law professors say silly things all the time, but I'm shocked that Paul Clement tried to disparage a circuit opinion written by a designated district judge. In my experience clerking for the Ninth Circuit (within the last ten years) the designated district judges were fantastic and easily as qualified to decide difficult appellate issues as the judges on the Ninth Circuit. I consider myself especially fortunate to have been able to meet and work with the late David Trager, a fantastic district judge from Brooklyn who passed away a few years ago, and who was regularly designated on the Ninth.

    1. I'm not innocent of having written bench memos that make a point of noting that a circuit opinion I didn't like was written by a district judge, so I'm not surprised that he'd think what he said, though I was very surprised he'd say it in answering a question by a former district judge. The opinion Clement was talking about is rather old - U.S. v. Tropiano, 418 F.2d 1069 (2d Cir. 1969). The author of Tropiano, Judge John Bartels, graduated from Harvard Law in 1923 and served as a district judge in Brooklyn from 1959 until his death in 1997, a few months shy of his 100th birthday. Like Quist, he got to write a fair number of circuit opinions over his career (60), and while they're workmanlike they're alright. Glancing at his stuff I'm particularly struck by some early opinions of his as a district judge that apply the Rule 23 requirements in a pretty stringent way, which one isn't accustomed to seeing in old class cases.

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