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9th Circuit Judge Tries To Be Funny, Fails

But, I mean, he's right about the Star Wars movies.

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In some ways, this is the tale of two judges.

Judge Kenneth K. Lee wrote the opinion in Briseño v. Henderson, but looming over the whole sad filing was Judge John B. Owens, who joined Judge Lee on the panel.

Judge Owens has a reputation in these pages for dropping occasional pop culture nuggets into opinions, like comparing the complexity of the Guidelines to “reconstructing the Staff of Ra in the Map Room to locate the Well of the Souls” or citing a classic Twilight Zone to warn of the dangers of judging aesthetics through the eye of the beholder. It’s nerdy, it’s funny, but it’s most importantly reserved and deployed mostly to demystify by drawing upon the grammar of our times.

Judge Lee must have wanted to emulate that vibe. It goes over like New Coke.

We can perhaps sum up this case as “How to Lose a Class Action Settlement in 10 Ways.”

That’s the opening line of the opinion just to set the tone. And while left in the wilderness this might come off like the canned opening of that one wedding speech everyone dreads, it’s just the opening salvo of non-stop cringe.

While courts should not casually second-guess class settlements brokered by the parties, they should not greenlight them, either, just because the parties profess that their dubious deal is “all right, all right, all right.”

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Second paragraph! He knows who Matthew McConaughey is, which passes as clever because… Memberberries.

Still hoping to strike oil…

The case is a class action about canola oil. Get it?

In early 2018, the Smucker deal hit an insurmountable regulatory jam.

To be clear, I possess a disturbingly high tolerance for dad jokes and have devoted the latter part of my legal career to the cause of lawyers taking themselves less seriously and this is grinding upon my last nerve. Alas, we’re just getting started.

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Only one class member opted out of the settlement. M. Todd Henderson, a law professor at the University of Chicago…

Just when you thought this case couldn’t get any dumber, Todd Henderson makes an appearance. The Algonquin Roundtable this case is not.

Not that the substance of this case matters all that much, but canola oil made false claims on its label, the class action settled, and because so few people opted into the settlement, the lawyers ended up taking home more money than the class. So Henderson and class action critic Ted Frank pushed back in the continuing effort to erode the incentives behind public protection lawsuits.

ConAgra thus essentially agreed not to do something over which it lacks the power to do. That is like George Lucas promising no more mediocre and schlocky Star Wars sequels shortly after selling the franchise to Disney. Such a promise would be illusory. [FN: As evident by Disney’s production of The Last Jedi and The Rise of Skywalker.]

That simile was more forced than making Rey change her name to Skywalker. Is he making a metareference to his own proclivity for forced, unnecessary asides rammed into the text for no reason other than a cloying nostalgia play?

Every year, tens of thousands of first year law students learn about Erie R. Co. v. Tompkins, and, soon after that, they become second-and-third-year law students with poor understanding of the doctrine. 304 U.S. 64, 58 S. Ct. 817, 82 L.Ed. 1188 (1938). Some of these students take the bar exam, fail, and try again or do other things. Others pass and become attorneys who still do not understand Erie. Granted, the difference between substantive and procedural law is sometimes fuzzy.

I just want everyone to understand this imagined journey from 0L to failing the bar exam exists solely as preamble to “Erie is not implicated here.” Maybe work on a tight five before planning a Netflix special.

Now comes the conclusion. Let’s play a game… what pop culture ephemera do you think gets clumsily bolted onto the end of this opinion?

A) The Theme Song From The Facts Of Life (you take the good, you take the bad)
B) Something Snide About The Room Where It Happens From Hamilton
C) The Arthur’s Sister Meme About Not Being Able To Read
D) “Class action counsel, in many ways, resembles Leeroy Jenkins…”

Congratulations Hamilton folks.

Ugh.

Professor Kreis says it best:

And “measurably” doesn’t even have to be “substantially.” Judge Owens throwing in something about a Raiders reference didn’t add much more than just calling the Guidelines “a puzzle” or something but it evokes a clear feeling. Compare with “here’s the basis of a bad SNL skit about Matthew McConaughey.”

I’ll even go one step further than Professor Kreis, it doesn’t even have to add to the opinion as long as it doesn’t detract from it. If Judge Lee ends after that atrocious “lose a guy in 10 days” reference — holy hell, can we take a second to remember that he took time to reference that train wreck? — we’d all write it off. It’s almost like he put together a writers’ room to workshop jokes and references he thought Judge Owens might potentially make and then decided to use every single one of them.

The point is, Your Honor, don’t quit your day job.

Wait a minute, what am I talking about? He’s a Trump judge rammed through on a straight party line vote. Absolutely quit your day job. Frankly, we think you’re basically the next Carson.

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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