By Eric Goldman
Howard Bashman provides some useful updates on the Roommates.com case.
First, the Ninth Circuit has rejected the amicus brief filed by Amazon.com and numerous other Internet companies because, according to Bashman, the amicus brief would have created a conflict for one or more judges that would have required recusal. The bounced brief. This is an unfortunate development for two reasons. First, the brief was first-rate advocacy. Second, the list of parties signing onto the brief was very impressive and really illustrated the depth and breadth of parties that are affected by the ruling. I hope the panel internalizes that point anyway.
Second, the members of the 11 judge en banc panel have been revealed: Chief Judge Kozinski and Judges Reinhardt, Rymer, Silverman, McKeown, Fletcher, Fisher, Paez, Bea, Milan Smith and Randy Smith. Judge Ikuta, who wrote the most sensible of the three opinions from the original panel, didn’t get the call, but the other two judges from the initial panel (Kozinski and Reinhardt) did. Unless those 2 judges change their mind (which seems highly unlikely given the personalities involved), there should already be 2 votes to affirm the initial Ninth Circuit ruling, meaning that a reversal will require 6 of the 9 other judges. Interestingly, Bashman thinks those 6 votes may be on the panel.
Third, the en banc argument was last Wednesday in Pasadena. I haven’t heard any color commentary from the hearing. Can anyone help out? [UPDATE: Howard has posted more thoughts and a link to the oral argument.]
UPDATE: Jeff Neuburger fishes out some interesting comments from the oral argument. The tenor of these Qs certainly isn’t good for Roommates.com.
The case library:
* amicus brief from a variety of Internet companies such as Google, eBay and Amazon plus non-profit organizations such as the EFF
* amicus brief from various news organizations
* The Ninth Circuit order granting the en banc hearing