December 14, 2007
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
* amicus brief from the ACLU. Roommates.com's reply brief to the ACLU brief.
* The Fair Housing Councils' request to brief Batzel. Roommates.com's opposition. The Ninth Circuit denied the Councils' request on Nov. 6.
* The Ninth Circuit order granting the en banc hearing
* Fair Housing Councils' reply to the EFF et al amicus brief
* EFF et al amicus brief supporting a rehearing en banc
* Fair Housing Council's response to Roommates.com's request for an en banc rehearing
* Roommates.com's En Banc Request
* The original Ninth Circuit opinion
* My blog post on the Ninth Circuit opinion
Posted by Eric at December 14, 2007 08:00 AM | Derivative Liability
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