Case Comments

2024

August 7, 2024

Donziger v. United States: A Constitutional Challenge to Court-Appointed Private Prosecutors Under Federal Rule of Criminal Procedure 42

Recent Case: Donziger v. United States, 143 S. Ct. 868, 215 L. Ed. 2d 288 (2023)

Maeve O’Brien²2. * Copyright © 2024 by Maeve O’Brien. J.D., 2024, New York University School of Law; B.A., 2020, The University of Michigan. Thank you to Professors Barry Adler and Paul Barrett for teaching the class that introduced me to the Donziger case, and to Professor Adler specifically for supervising my work on this essay. Thank you as well to the Online Department of the New York University Law Review for their thoughtful edits to this piece, particularly (in alphabetical order by last name), Gordon Ahl, Elaine Miao, Lydia Schiller, Julius Sim, and Shawn Young.*

“[T]he judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them . . . . It may truly be said to have neither FORCE nor WILL but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” The Federalist No. 78 (Alexander Hamilton).

Last term, the Supreme Court denied a petition for writ of certiorari, filed by now famed environmental lawyer Steven Donziger, that presented the question of whether Federal Rule of Criminal Procedure 42(a)(2) violated the Appointments Clause of the U.S. Constitution. The rule allows federal judges to appoint private attorneys to prosecute criminal contempt charges should the government decline to do so and was the mechanism by which Donziger himself was prosecuted. Justice Gorsuch, joined by Justice Kavanaugh, dissented from the denial, arguing that the appointment of the special prosecutors ran afoul of the text of the Appointments Clause and blurred the line between the judicial and executive powers. The denial of the petition is an interesting departure from the Court’s recent Appointments Clause jurisprudence, which has been sensitive to separation of powers concerns, and provides a data point on where the Court is unwilling to draw a rigid line between the functions of the three branches.

Introduction

No shortage of ink has been spilled about the (literal) trials and tribulations of Steven Donziger. He rose to prominence after winning an over $9 billion victory in Ecuador for the Cofán people, an indigenous group living in the Amazon, against Chevron.³3. Isabella Grullón Paz, Lawyer Who Won $9.5 Billion Judgment Against Chevron Reports to Prison, N.Y. Times (Oct. 27, 2021), https://www.nytimes.com/2021/10/27/business/energy-environment/steven-donziger-chevron.html [https://perma.cc/AK24-U9W5]. Chevron had drilled for oil in the region and polluted it, allegedly, and tragically, giving many Cofán people cancer and other diseases.⁴4. Paul M. Barrett, Law of the Jungle 215-218 (2014) (describing the impact of oil drilling on the Cofán people). However, an American judge found that Donziger’s victory was won through bribery and fraud—that he had taken advantage of opportunities for corruption in the Ecuadorian legal system.⁵5. See Chevron Corp. v. Donziger (Chevron I), 974 F. Supp. 2d 362 (S.D.N.Y. 2014), aff’d, 833 F.3d 74 (2d Cir. 2016). The judge ruled that the Ecuadorian judgment could not be enforced in the United States;⁶6. See id. at 642. after decades of litigation, no money changed hands from Chevron to the Cofán people. The ensuing legal battle in the United States culminated in Donziger having to spend months in federal prison and years in house arrest,⁷7. Paz, supra note 1. garnering significant media attention and public outcry.⁸8. See, e.g., Erin Brockovich, This Lawyer Should Be World-Famous for His Battle with Chevron – but He’s in Jail, Guardian (Feb. 8, 2022, 11:54 AM), https://www.theguardian.com/commentisfree/2022/feb/08/chevron-amazon-ecuador-steven-donziger-erin-brockovich [https://perma.cc/3K8K-YXNJ]; Sharon Lerner, How the Environmental Lawyer Who Won a Massive Judgment Against Chevron Lost Everything, Intercept (Jan. 29, 2020), https://theintercept.com/2020/01/29/chevron-ecuador-lawsuit-steven-donziger [https://perma.cc/W9F6-386W]; Support Steven, Free Donziger, https://www.freedonziger.com [https://perma.cc/B3QD-H2NB] (last visited Dec. 27, 2023).

There are many interesting things to say about every chapter of Donziger and Chevron’s decades-long fight. Indeed, the story has inspired a documentary,⁹9. Crude (Joe Berlinger Sept. 9, 2009). a book,¹⁰10. Barrett, supra note 2. and hundreds of news articles.¹¹11. See, e.g., Kevin E G Perry, Crusading Lawyer Steven Donziger on His 993 Days of House Arrest Amid Battle with Oil Companies, Independent (Jan. 8, 2024), https://www.independent.co.uk/climate-change/news/steven-donziger-interview-texaco-oil-b2446695.html [https://perma.cc/S37Y-3W8L]; Paz, supra note 1; Brokovich, supra note 6; Lerner, supra note 6. The focus of this Case Comment, however, is on the end of the story, at least as it stands now: Donziger’s constitutional challenge to his criminal contempt prosecution, and the United States Supreme Court’s recent decision not to hear the case.¹²12. See Donziger v. United States (Donziger III), 143 S. Ct. 868 (2023) (denying Donziger’s petition for a writ of certiorari).

Donziger’s legal battle in the U.S. culminated in him being convicted of criminal contempt, the reason that he ultimately spent time in prison.¹³13. United States v. Donziger (Donziger I), 2021 WL 3141893, at *86 (S.D.N.Y. July 26, 2021), aff’d, 38 F.4th 290 (2d Cir. 2022), cert. denied, 143 S. Ct. 868 (2023); see also Brockovich, supra note 6 (noting that Donziger reported to serve a six-month prison sentence for contempt). He was prosecuted not by a local district attorney, but by private attorneys that were appointed to serve as special prosecutors by the judge overseeing Donziger’s civil case.¹⁴14. See Order of Appointment, United States v. Donziger, No. 11-cv-00691-LAK-RWL (S.D.N.Y. July 31, 2019). The judge had authority to do this under Federal Rule of Criminal Procedure 42(a)(2) (“Rule 42”), which provides that in cases of criminal contempt, “[t]he court must request that the contempt be prosecuted by an attorney for the government, unless the interest of justice requires the appointment of another attorney. If the government declines the request, the court must appoint another attorney to prosecute the contempt.”¹⁵15. Fed. R. Crim. P. 42(a)(2). The Federal Rules of Criminal Procedure are promulgated by the United States Supreme Court, House Comm. on the Judiciary, 116th Cong., Federal Rules of Criminal Procedure iii (Comm. Print 2020), and govern all criminal proceedings across federal courts, where Donziger was prosecuted. Fed. R. Crim. P. 1(a)(1).

The current rule came about after the 1987 Supreme Court case, Young v. U.S. ex rel. Vuitton et Fils S.A. There, as in Donziger’s case, the defendants were prosecuted for criminal contempt by a private attorney appointed by the district court.¹⁶16. Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 791–92 (1987). Relevant here, they argued that the court lacked such authority under the version of Rule 42 that existed then.¹⁷17. Id. at 793. The Court held that even though the old Rule 42 did not explicitly authorize courts to appoint private attorneys, it was “long settled that courts possess inherent authority to initiate contempt proceedings for disobedience to their orders, authority which necessarily encompasses the ability to appoint a private attorney to prosecute the contempt.”¹⁸18. Id. The Court also ultimately held that the prosecutors appointed in Young were not disinterested because they represented the private beneficiaries of the court order that the defendants allegedly violated, rendering their appointment improper. Id. at 814. There was a “longstanding acknowledgement” that such authority was “part of the judicial function” and “essential to ensuring that the Judiciary ha[d] a means to vindicate its own authority without complete dependence on other Branches.”¹⁹19. Id. at 795–96. Without it, the Judiciary would be “at the mercy of another Branch”: the Executive.²⁰20. Id. at 796. Notably, Justice Scalia concurred in the judgment, but on the ground that prosecution of criminal contempt is part of the Article II executive power, not the Article III judicial power. Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 816 (1987) (Scalia, J., concurring). The judicial power “includes the power to serve as a neutral adjudicator in a criminal case,” but does not “generally include the power to prosecute crimes.” Id. at 816. To Justice Scalia, the idea of the efficaciousness of judicial judgments being at the mercy of the Executive, “[f]ar from being absurd . . . is a carefully designed and critical element of our system of Government.” Id. at 817. However, the Court indicated that the ability to appoint private prosecutors should be restrained by the principle that “only [t]he least possible power adequate to the end proposed should be used in contempt cases.”²¹21. Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 801 (1987) (quoting United States v. Wilson, 421 U.S. 309, 319 (1975)) (internal quotation marks omitted). Therefore, the court should first refer the case to the public prosecutor’s office, and it should only appoint a private prosecutor if the request is denied.²²22. Id. at 801. In 2002, the language of Rule 42 was amended to reflect the holding in Young.²³23. Fed. R. Crim. P. 42(a)(2) advisory committee’s note to 2002 Amendment.

It is worth pausing to note that Rule 42 is so remarkable because the prosecution of crimes is traditionally a function of the executive branch.²⁴24. See Young, 481 U.S. at 816–17 (Scalia, J., concurring) (highlighting that since the prosecution of law violators is part of the implementation of the laws, it is executive power vested by the Constitution in the President); see also Heckler v. Chaney, 470 U.S. 821, 832 (1985) (“[T]he decision of a prosecutor in the Executive Branch not to indict [is] a decision which has long been regarded as the special province of the Executive Branch . . . .”). Although common law England used a model of private prosecution, the American colonies quickly recognized the importance of having criminal proceedings conducted by impartial government officials, and so they established local offices of public prosecutors.²⁵25. See Andrew Sidman, Comment, The Outmoded Concept of Private Prosecution, 25 Am. U. L. Rev. 754, 756–63 (1976). At the federal level, the Judiciary Act of 1789 provided for the appointment of an attorney in each judicial district to prosecute federal crimes.²⁶26. 1 Stat. 92 (1789). It also created the Office of the Attorney General, who was to prosecute cases in front of the Supreme Court and advise the President of the United States and the heads of the departments, situating the position in the Article II executive branch.²⁷27. Id. The district attorneys came under the Attorney General’s supervision in 1861, and Congress officially established the Department of Justice, which houses all of these positions, as an executive department of the government in 1870.²⁸28. Jim Martin, The Creation of the Department of Justice, Libr. Cong. Blogs (Dec. 4, 2017), https://blogs.loc.gov/law/2017/12/the-creation-of-the-department-of-justice [https://perma.cc/TB2C-ZY77]. In the years since, it has become an accepted principle that “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case . . . .”²⁹29. United States v. Nixon, 418 U.S. 683, 693 (1974).

After Donziger was tried and convicted of criminal contempt by the special prosecutors appointed pursuant to Rule 42, he appealed on the ground that Rule 42 violated the Appointments Clause to the U.S. Constitution.³⁰30. Petition for a Writ of Certiorari, Donziger v. United States, 143 S. Ct. 868 (2023) (No. 22-274). The Appointments Clause provides that the President of the United States, “by and with the Advice and Consent of the Senate . . . shall appoint . . . Officers of the United States . . . but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”³¹31. U.S. Const. art. II, § 2, cl. 2. Donziger argued that his prosecution ran afoul of the Appointments Clause in two ways. First, the special prosecutors were inferior officers not supervised by a principal officer, which the Court had previously held to be required by the Clause.³²32. United States v. Donziger (Donziger II), 38 F.4th 290, 293 (2d Cir. 2022), cert. denied, 143 S. Ct. 868 (2023). In Edmond, the Court held that under the Appointments Clause, inferior officers—those not appointed by the President with the advice and consent of the Senate—must be “directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.” Edmond v. United States, 520 U.S. 651, 663 (1997). Second, Rule 42 allows judges to appoint inferior officers without Congress “by Law” vesting appointment authority in the courts.³³33. Donziger II, 38 F.4th at 293–94. Donziger lost in the Second Circuit, and filed a petition for writ of certiorari with the Supreme Court, posing two questions: Does Rule 42 authorize judicial appointments of inferior executive officers? If so, do those appointments violate the Appointments Clause?³⁴34. Petition for a Writ of Certiorari, Donziger v. United States, 143 S. Ct. 868 (2023) (No. 22-274). In March of 2023, the Supreme Court denied the petition, with Justices Gorsuch and Kavanaugh dissenting.³⁵35. Donziger III, 143 S. Ct. 868 (2023).

This Case Comment proceeds in three parts. Part I documents and provides context to the development of Donziger’s criminal contempt case, and how his constitutional challenges were handled in the district and appellate courts. Part II details Justice Gorsuch’s vocal dissent from the Supreme Court’s denial of the petition for the writ of certiorari. Part III evaluates the state of affairs with Rule 42 and attempts to reconcile the Supreme Court’s denial of the petition with its recent Appointments Clause jurisprudence, particularly Arthrex, as well as Relentless, an upcoming case implicating separation of powers concerns.

IJourney to the Supreme Court

A. Pre-Criminal Contempt Litigation

The events leading up to this case date back to 1993, when Donziger first became involved in the litigation in Ecuador.³⁶36. Barrett, supra note 2, at 44–48. What unfolded between then and 2014, the year of his conviction in the United States, is a story unto itself—at times so dramatic that it resembles fiction.³⁷37. For a thorough and altogether fascinating account of the events preceding Steven Donziger’s prosecution in the United States, see Barrett, supra note 2. For the purposes of this Case Comment, however, I start the story in 2014, when Donziger was tried before Judge Lewis Kaplan in the Southern District of New York on charges under the Racketeer Influenced and Corrupt Organizations Act of 1970 (RICO), as well as other fraud-related charges, for his conduct in Ecuador.³⁸38. Chevron I, 974 F. Supp. 2d 362 (S.D.N.Y. 2014), aff’d, 833 F.3d 74 (2d Cir. 2016). In a lengthy opinion, Judge Kaplan found that Donziger had violated RICO and that his victory in Ecuadorian court had been procured through fraud and other corrupt means.³⁹39. Id. at 644. He granted Chevron the equitable relief it requested: that the multibillion dollar judgment in Ecuador be unenforceable in the United States and that Donziger and his team be prohibited from benefitting financially from the fraud (the “RICO judgment”).⁴⁰40. Id. at 639–42.

A negative feedback loop then ensued: Judge Kaplan ordered Donziger to comply with the RICO judgment; Donziger appealed to the Second Circuit and refused to comply; Judge Kaplan penalized him; Donziger appealed the penalties and refused to comply; and so on and so forth.⁴¹41. For context, the back-and-forth between Judge Kaplan and Donziger in the courtroom occurred against a background of, and likely amplified, Judge Kaplan’s personal animus for Donziger. See Patrick Radden Keefe, Reversal of Fortune, New Yorker (Jan. 1, 2012), https://www.newyorker.com/magazine/2012/01/09/reversal-of-fortune-patrick-radden-keefe [https://perma.cc/2JWW-HT6Y] (describing Judge Kaplan as exhibiting a “palpable dislike” of Donziger over the course of several hearings leading up to the trial). Donziger originally appealed the RICO judgment to the Second Circuit, which affirmed.⁴²42. Chevron Corp. v. Donziger, 833 F.3d 74, 151 (2d Cir. 2016). Judge Kaplan then ordered that, in addition to the equitable relief, Donziger pay Chevron over $800,000 in court costs (the “money judgment”), which Donziger in turn appealed and did not pay.⁴³43. See Chevron Corp. v. Donziger, 384 F. Supp. 3d 465, 471–73 (S.D.N.Y. 2019) (hereinafter Chevron II) (describing the over $800,000 money judgment as being entered following the Second Circuit’s decision and reflecting taxable court costs), aff’d in part, vacated in part, rev’d in part, 990 F.3d 191 (2d Cir. 2021). To enforce the money and RICO judgments, Judge Kaplan ordered that Donziger provide a list of all of his electronic devices and digital accounts to a forensic expert and surrender them for imaging,⁴⁴44. Chevron Corp. v. Donziger, 425 F. Supp. 3d 297, 306 (S.D.N.Y. 2019). an inherently invasive measure. Donziger announced that he would not comply with the order,⁴⁵45. See Chevron II, 384 F. Supp. 3d at 476 (“Donziger announced in advance that he would not comply with these provisions of the Protocol and has not done so.”). citing the attorney-client privilege and his constitutional due process rights.⁴⁶46. See United States v. Donziger, No. 11-CV-691(LAK), 2021 WL 92761, at *1 (S.D.N.Y. Jan. 10, 2021) (explaining that Donziger claimed he would not comply with the protocol until his due process rights were respected); see also Letter from Edward J. Markey & Sheldon Whitehouse, U.S. Sens., to Hon. Roslynn R. Manuskopf, Dir., Admin. Off. of the U.S. Cts. (July 29, 2021) [hereinafter Markey & Whitehouse Letter] (discussing Donziger’s justifications for not complying). Additionally, Judge Kaplan found that Donziger had monetized the Ecuadorian judgment and had not transferred his contingent fees or any profits from the judgment to Chevron, which was part of the equitable relief in the RICO judgment.⁴⁷47. Chevron II, 384 F. Supp. 3d at 497. All of this culminated in Judge Kaplan holding Donziger in civil contempt and ordering him to pay $666,476.34 and a $2,000 fine that doubled every day he did not comply with the contempt order,⁴⁸48. Id. at 506. as well as ordering him to surrender his passport.⁴⁹49. See Order to Show Cause Why Defendant Steven Donziger Should Not Be Held in Criminal Contempt, United States v. Donziger, No. 11-cv-691 (LAK), at 6 (S.D.N.Y. July 31, 2019) [hereinafter Order to Show Cause]. A few months later, Judge Kaplan granted Chevron’s request that Donziger pay the company $3.4 million in attorney’s fees.⁵⁰50. Michael I. Krauss, Suspended Ex-Attorney Steven Donziger Condemned to Pay Chevron $3.4 Million, Forbes (July 17, 2019, 3:12 PM), https://www.forbes.com/sites/michaelkrauss/2019/07/17/suspended-ex-attorney-steven-donziger-condemned-to-pay-chevron-3-4-million/?sh=1f6113ca32cd [https://perma.cc/78ED-YPVT].

Unsurprisingly, Donziger did not pay the millions he owed to Chevron,⁵¹51. See Donziger I, 2021 WL 3141893, at *43, *47 (S.D.N.Y. July 26, 2021), aff’d, 38 F.4th 290 (2d Cir. 2022), cert. denied, 143 S. Ct. 868 (2023) (explaining that Donziger appealed the Money Judgment and that his bank accounts were frozen and he did not have the means to pay the fines). By this point, Donziger’s law license was suspended. Matter of Donziger, 163 A.D.3d 123, 125 (App. Div. 2018). Further, due to the RICO judgment, he could not pay using money from the Ecuadorian judgment, which he had spent virtually his entire legal career pursuing. See Barrett, supra note 2, at 45 (discussing how Donziger joined the case in Ecuador two years after graduating law school). nor did he turn over his devices nor surrender his passport.⁵²52. Order to Show Cause, supra note 47, at 2, 5, 6. Judge Kaplan issued an Order to Show Cause and referred the case to the U.S. Attorney’s Office for the Southern District of New York.⁵³53. Petition for a Writ of Certiorari, supra note 28, at 8. The office declined to pursue criminal contempt charges against Donziger, explaining that the matter would require resources that it did not have readily available.⁵⁴54. Id. Judge Kaplan proceeded to draft six counts of criminal contempt charges himself in an Order to Show Cause,⁵⁵55. Order to Show Cause, supra note 47. and, pursuant to his power under Rule 42, appointed three private attorneys from the law firm Seward & Kissel to serve as prosecutors in the case.⁵⁶56. Order of Appointment, United States v. Donziger, No. 11-cv-0691(LAK) (S.D.N.Y. July 31, 2019); see also Markey & Whitehouse Letter, supra note 44 (laying out the sequence of events involved with the criminal contempt proceedings). The firm Seward & Kissel had previously represented Chevron. Id. The Order mandated that Donziger appear for trial before Judge Loretta A. Preska, another judge for the Southern District of New York.⁵⁷57. Order to Show Cause, supra note 47, at 1. Judge Kaplan apparently bypassed the random assignment process and picked Judge Loretta Preska to oversee the criminal case. Compare Order to Show Cause, supra note 47, at 10 (ordering that the defendant appear before the Honorable Loretta A. Preska) with E.D.N.Y Loc. R.50.2(b) (“All cases shall be randomly assigned by the clerk or his designee in public view in one of the clerk’s offices . . . .”), https://img.nyed.uscourts.gov/files/local_rules/localrules.pdf [https://perma.cc/A3G5-MDAA]. This rare move of a judge invoking Rule 42 to appoint private attorneys to prosecute a case would come to form the basis of the Appointments Clause showdown in Donziger v. United States.

B. District Court Proceedings

Ahead of the criminal contempt trial, Donziger moved to disqualify the special prosecutors.⁵⁸58. Petition for a Writ of Certiorari, supra note 28, at 9. Judge Preska denied the motion, as well as several other motions to dismiss.⁵⁹59. See id. Early in the criminal contempt case, Judge Preska also deemed Donziger a flight risk—in part because of his ties to Ecuador—and ordered him to house arrest and seized his passport. See United States v. Donziger, 853 F. App’x 687, 688–89 (2d Cir. 2021), as amended (Apr. 26, 2021) (reviewing the district court’s risk-of-flight analysis and discussing the conditions of Donziger’s pretrial release). A little over a month ahead of trial, Donziger’s legal team sent a letter to Acting Deputy Attorney General John P. Carlin, asking the Department of Justice to review the prosecution.⁶⁰60. Petition for a Writ of Certiorari, supra note 28, at 9–10. Three days ahead of the scheduled trial start date of May 10, 2021, Carlin responded via email that the Department had reviewed the request and declined to intervene in the court-initiated proceedings.⁶¹61. Id. at 10. At the outset of the trial, armed with Carlin’s email about the DOJ’s absence, Donziger moved to dismiss the case on the ground that the special prosecutors were inferior executive officers not supervised by a principal officer, as is required by the Appointments Clause.⁶²62. Donziger I, 2021 WL 3141893, at *52 (S.D.N.Y. July 26, 2021), aff’d, 38 F.4th 290 (2d Cir. 2022), cert. denied, 143 S. Ct. 868 (2023). Recall that under the Appointments Clause, inferior officers—those not appointed by the President with the advice and consent of the Senate—must be “directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate”; see also Edmond v. United States, 520 U.S. 651, 663 (1997). Judge Preska found the email from Carlin to be inadmissible hearsay, and denied the motion.⁶³63. Donziger I, 2021 WL 3141893, at *52.

Then, in a development consistent with the eventfulness of the Donziger litigation, the Supreme Court decided United States v. Arthrex, a major Appointments Clause case having to do with the administrative patent judges (APJs) of the United States Patent and Trademark Office.⁶⁴64. 594 U.S. 1 (2021). There, the Court held that the APJs’ appointment to the Patent Trial and Appeal Board was inconsistent with their inferior officer status because they had binding, decision-making authority that was not reviewable by a principal officer.⁶⁵65. Id. at 23. Therefore, they were functionally principal officers that had not been appointed by the President with the advice and consent of the Senate, in direct contravention of the Appointments Clause.⁶⁶66. See id. Emboldened by Arthrex, Donziger filed a second motion to dismiss after trial but before the verdict.⁶⁷67. Donziger I, 2021 WL 3141893, at *53. The special prosecutors themselves maintained that they were not subject to executive supervision, but, under Young, were merely part of the judiciary’s inherent power to prosecute contempt cases.⁶⁸68. See Petition for a Writ of Certiorari, supra note 28, at 11. On their account, Arthrex was inapplicable because it pertained to only executive, not judicial, branch appointments.⁶⁹69. Id.

Judge Preska rejected Donziger’s Appointments Clause claim raised in his post-trial motion for reasons adopted and reiterated by the Second Circuit, discussed infra Part I.C.⁷⁰70. Donziger raised a host of other arguments as to why the criminal contempt charges should be dismissed—including that the special prosecutors were not sufficiently disinterested as required by Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 814 (1987)—which the court rejected. Donziger I, 2021 WL 3141893, at *49, aff’d, 38 F.4th 290 (2d Cir. 2022), cert. denied, 143 S. Ct. 868 (2023). For brevity’s sake, I will not review Donziger’s non-Appointments Clause arguments in any depth. On procedural grounds, she also found that Donziger’s Appointments Clause claim was untimely and should have been raised by the deadline for pretrial motions.⁷¹71. Donziger I, 2021 WL 3141893, at *53. This procedural finding supplied the basis for the Second Circuit later applying plain error review to Donziger’s challenge on appeal.⁷²72. See infra note 84 and accompanying text.

Donziger was ultimately convicted of all six counts of criminal contempt and sentenced to six months in federal prison, the maximum for a criminal contempt case not required to be heard by a jury.⁷³73. Donziger I, 2021 WL 3141893, at *86 (S.D.N.Y. July 26, 2021), aff’d, 38 F.4th 290 (2d Cir. 2022), cert. denied, 143 S. Ct. 868 (2023); see also Paz, supra note 1. He was released early under a COVID-19 waiver and served the rest of his sentence at home. Sebastien Malo, Chevron Foe Donziger Released from Prison Under COVID Waiver, Reuters (Dec. 10, 2021, 11:29 AM), https://www.reuters.com/legal/litigation/chevron-foe-donziger-released-prison-under-covid-waiver-2021-12-10 [https://perma.cc/KJZ3-PT8Y]. He was released on April 25, 2022. Steven Donziger (@SDonziger), Twitter (Feb. 4, 2022, 3:01 PM), https://twitter.com/SDonziger/status/1489690528367226883 [https://perma.cc/F7JB-R4ZG]. He moved for a new trial on the ground that, since the district court had found the special prosecutors to be inferior executive officers, Rule 42 violated the Appointments Clause because Congress had not “by Law” vested appointment authority in the judiciary.⁷⁴74. Petition for a Writ of Certiorari, supra note 28, at 12. Judge Preska denied the motion, and Donziger appealed to the Second Circuit.⁷⁵75. Donziger II, 38 F.4th 290, 295 (2d Cir. 2022), cert. denied, 143 S. Ct. 868 (2023).

C. Second Circuit Proceedings

Donziger’s argument on appeal was a two-fold constitutional challenge to Rule 42 under the Appointments Clause, a combination of the pre- and post-trial arguments he had raised in the district court. First, he argued that the special prosecutors were inferior officers who were not supervised by a principal officer.⁷⁶76. Id. at 293. Second, he argued that Rule 42 does not satisfy the Appointments Clause requirement that Congress must vest the appointment of inferior officers in the courts “by Law” if it is going to do so.⁷⁷77. Id. at 293–94.

Writing for the majority, Judge Michael H. Park first addressed the threshold question of whether the special prosecutors were officers of the United States such that they fell in the ambit of the Appointments Clause. If not, there would be no constitutional issue. To qualify as an officer, an individual must exercise “significant authority” pursuant to federal law and “occupy a continuing position established by law.”⁷⁸78. Id. at 296 (citing Lucia v. S.E.C., 138 S. Ct. 2044, 2051 (2018)). Judge Park reasoned that the role of a federal prosecutor—representing the United States in criminal proceedings—was surely significant authority.⁷⁹79. Id. at 296. Further, the position, though not permanent, was continuing: It extended beyond any one individual, and may (and did in this case) last for years.⁸⁰80. Id. at 299. He concluded that the special prosecutors were indeed inferior officers of the executive branch, subject to the Appointments Clause requirements.⁸¹81. Donziger II, 38 F.4th at 299; cf. Morrison v. Olson, 487 U.S. 654 (1988) (finding an independent counsel to be an inferior officer).

Next, Judge Park turned to, and rejected, Donziger’s first Appointments Clause argument on the same ground as the district court. Recall that under the Appointments Clause, inferior officers’ work must be supervised at some level by a principal officer.⁸²82. Edmond v. United States, 520 U.S. 651, 663 (1997). He found this standard to be satisfied by the fact that the Attorney General possessed the broad statutory authority to supervise all litigation involving the United States, which included the authority to supervise, and, if necessary, remove the special prosecutors.⁸³83. Donziger II, 38 F.4th at 300; see also 28 U.S.C. §§ 516–19 (describing the Attorney General’s authorities). Whether they were in fact supervised (they undeniably weren’t) was “beside the point.”⁸⁴84. Donziger II, 38 F.4th at 301. Donziger’s argument was premised on both the email from the Department of Justice declining to intervene in the prosecution, as well as the fact that the Department filed a separate amicus brief to the Second Circuit rather than directing the special prosecutors to take its position. Id. The court found this evidence insufficient because the Department could have directed the special prosecutors if it wanted to. Id. Judge Park considered this finding in line with Young, which, per its interpretation, only pertains to the judicial power to initiate a prosecution for criminal contempt should the executive branch decline to do so.⁸⁵85. Id. at 301–02 (citing Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 795, 800–01 (1987)). Under his reading of Young, after appointing the prosecutors, the power over the criminal contempt prosecution changes hands from the judicial to the executive branch.

Next, Judge Park turned to, and again rejected, Donziger’s second Appointments Clause argument, applying plain error review⁸⁶86. Donziger raised the specific challenge to Rule 42 after the district court opinion was issued, so the court considered it unpreserved and accordingly applied plain error view. Id. at 302–03. and finding that that the judicial appointment of inferior executive officers, authorized under Rule 42, but not by statute, did not clearly violate the Appointments Clause. First, he considered it unclear whether the Appointments Clause language that Congress must “by Law” vest appointment authority in courts actually required bicameral approval and presentment, or whether Rule 42 sufficed because it was passed pursuant to the Rules Enabling Act.⁸⁷87. Donziger II, 38 F.4th at 303. The Act gives the Supreme Court the power to prescribe rules of procedure for federal courts, such as Rule 42.⁸⁸88. 28 U.S.C. § 2072. It must notify Congress, which can modify or reject the rules, but otherwise they automatically go into effect without congressional action.⁸⁹89. Id. § 2074.

Second, he found that any error by the district court would not be clear in light of Young.⁹⁰90. Donziger II, 38 F.4th at 303. Judge Park found that Young stands for the proposition that courts possess inherent authority to initiate criminal contempt proceedings by appointing private attorneys to prosecute the charges.⁹¹91. Id. (citing Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 793 (1987)). He conceded that although Young may be “in some tension with the [Supreme] Court’s more recent Appointments Clause and separation-of-powers jurisprudence,” the district court did not plainly err by following a directly applicable Supreme Court case.⁹²92. Id. In other words, if the Court wanted to overturn Young, that was its task to take up.

Judge Park’s majority was answered by an impassioned dissent from Judge Steven J. Menashi.⁹³93. See id. at 306 (Menashi, J., dissenting). Judge Menashi’s argument was as follows: In the American constitutional framework, the power to prosecute a case lies exclusively within the executive branch.⁹⁴94. Id. (quoting United States v. Nixon, 418 U.S. 683, 693 (1974)). By this point in the litigation, everyone involved agreed that the special prosecutors were inferior officers exercising an executive power—their appointment, therefore, needed to comply with the Appointments Clause.⁹⁵95. Id. But, according to Judge Menashi, their appointment didn’t comply with the Clause because they were appointed by a court pursuant to Rule 42, which was not Congress “by Law” vesting appointment authority in the courts.⁹⁶96. Donziger II, 38 F.4th at 310–11 (Menashi, J., dissenting). Judge Menashi also reasoned that the court should not apply plain error review because Donziger had sufficiently challenged the constitutionality of the special prosecutors to preserve the specific Rule 42 argument. See id. at 307–09. All along, Donziger had maintained that the prosecutors were unsupervised and therefore acting as principal and not inferior officers, so there was no need to focus on the language in Rule 42 about appointing inferior officers. Id. Once the district court affirmatively found them to be inferior officers, he raised it immediately. Id. Even under a plain error standard, Judge Menashi would find that Donziger prevails. See id. at 309–10. Therefore, the appointment of the special prosecutors and everything that followed—Donziger’s prosecution, conviction, and sentencing—were unconstitutional and void.⁹⁷97. Id. at 307.

Judge Menashi explained that the logic of Young no longer made sense now that the court had established special prosecutors to be inferior executive officers and cabined Young’s discussion to the judiciary’s authority over only the initiation of contempt proceedings.⁹⁸98. Id. at 311. Recall that the justification underlying Young was the inherent authority of the judiciary to vindicate its own authority when dealing with disobedient litigants without depending on other branches.⁹⁹99. Donziger II, 38 F.4th at 311–12 (Menashi, J., dissenting) (citing Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 796 (1987)). Judge Menashi’s opinion begged the question: How is that authority actually furthered by authorizing a court to appoint a prosecutor who could be immediately fired by the same executive branch that had just declined to prosecute the case?¹⁰⁰100. See id. at 307 (“[A]ll [Young] did was authorize a district court to appoint a prosecutor who could be immediately fired by the executive branch. That is not the ‘power of self-protection’ the Young Court had in mind.” (internal citations omitted)). In Judge Menashi’s view, this was not what the Young court had in mind.

Judge Menashi further explained that Rule 42 is promulgated pursuant to the Rules Enabling Act, but is not itself a law enacted by Congress, as required by the Appointments Clause.¹⁰¹101. Id. at 310–11. Even though the Act requires that the rule be submitted to Congress before it takes effect, it doesn’t have to, and usually doesn’t, do anything after being notified.¹⁰²102. Id. at 311.

Judge Park’s recognition of Young’s tenuousness in light of the Supreme Court’s subsequent jurisprudence, and Judge Menashi’s laying plain of its dubious logic once establishing that court-appointed prosecutors are inferior executive officers, teed the case up perfectly for Supreme Court review.

IIThe Supreme Court’s Denial of the Petition for the Writ of Certiorari

Three months after the Second Circuit’s decision in United States v. Donziger, Donziger filed a petition for a writ of certiorari to the Supreme Court of the United States.¹⁰³103. Petition for a Writ of Certiorari, supra note 28. The petition posed two questions: Does Rule 42 authorize judicial appointments of inferior executive officers? If so, do those appointments violate the Appointments Clause?¹⁰⁴104. Id. at *1. On March 27, 2023, the Supreme Court denied the petition.¹⁰⁵105. Donziger III, 143 S. Ct. at 868. Justice Neil Gorsuch, joined by Justice Brett Kavanaugh, wrote an ardent dissent.¹⁰⁶106. Id. (Gorsuch, J., dissenting).

First, sounding in Judge Menashi’s dissent from the Second Circuit opinion, Justice Gorsuch attacked Young as a shaky constitutional foundation for the appointment of private prosecutors. Young treated court-appointed prosecutors as wielding judicial power, whereas the court-appointed prosecutors in Donziger were decidedly wielding executive power and were accountable through the executive branch’s chain of command up to the President.¹⁰⁷107. Id. at 869. Young, then, wasn’t even applicable on its own terms.¹⁰⁸108. Id. And, even on its own judicial power rationale, Justice Gorsuch seemed skeptical as to how Young could be squared with the principle of separation of powers: Under the Constitution, a court’s role is to serve as a neutral adjudicator in a criminal case, not to prosecute the crimes themselves.¹⁰⁹109. Id. at 868–69 (quoting Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 816 (1987) (Scalia, J., concurring)).

Justice Gorsuch then turned to the Second Circuit’s finding that Rule 42 satisfied the Appointments Clause requirement that “Congress . . . by Law vest[ed]” appointment authority of prosecutors in courts.¹¹⁰110. Id. at 869 (quoting U.S. Const. art. II, § 2, cl. 2). He identified two challenges: First, Young itself rejected the idea that the precursor to the modern Rule 42 could serve as an independent source of appointment authority.¹¹¹111. Donziger III, 143 S. Ct. at 869 (citing Young, 481 U.S. at 794). Quoting Justice Scalia’s concurrence in Young, Justice Gorsuch noted that Rule 42 is after all a “‘[r]ule of court rather than an enactment of Congress,’ and therefore it cannot ‘confer Article II appointment authority on anybody.’”¹¹²112. Id. (quoting Young, 481 U.S. at 816 n.1 (internal quotation marks omitted)). Second, courts have adopted Rule 42 through the Rules Enabling Act, which provides that rules promulgated pursuant to it “shall not abridge . . . or modify any substantive right.”¹¹³113. Id. (quoting 28 U.S.C. § 2072(b)). Interpreting Rule 42 as authorizing courts to play the part of both accuser and decisionmaker not only transfers the power of prosecutorial discretion from the executive to the judiciary, Justice Gorsuch argued, it also violates the due process rights of the accused.¹¹⁴114. Id. at 869–70 (quoting Williams v. Pennsylvania, 579 U.S. 1, 9 (2016)).

Justice Gorsuch ended with a broad appeal to the principle of separation of powers—a “basic constitutional promise essential to our liberty.”¹¹⁵115. Id. at 870. Before concluding, Justice Gorsuch also dispensed with the Department of Justice’s argument before the Second Circuit that the court-appointed prosecutors were not inferior executive officers for the purposes of the Appointments Clause but were non-officer employees. Id. Like the Second Circuit, Justice Gorsuch found this argument difficult to square with Morrison. Donziger III, 143 S. Ct. at 869 (citing Morrison v. Olson, 487 U.S. 654, 670–71 (1988)). He also balked at the idea that the Constitution allows one branch to install non-officer employees in another branch—that the President, for example, could choose his law clerk, and he the White House staff. See id. Per that promise, judges lack the power to initiate a prosecution of the defendants before them, just as prosecutors lack the power to judge the cases of those they charge.¹¹⁶116. Id. In light of the majority’s denial of the petition, Justice Gorsuch urged lower courts deciding whether to appoint their own prosecutors to “consider carefully Judge Menashi’s dissenting opinion in this case, the continuing vitality of Young, and the limits of its reasoning.”¹¹⁷117. Id. “Our Constitution,” Justice Gorsuch announced, “does not tolerate what happened here.”¹¹⁸118. Id.

IIIPost-Denial: The Survival of Rule 42 and Implications for the Court’s Separation of Powers Jurisprudence

A. The Continued Constitutionality and Operation of Rule 42

In the wake of the Supreme Court’s denial of the petition for a writ of certiorari in Donziger, a few things appear true: Young remains intact, Rule 42 is still considered constitutional, and courts can continue to appoint private prosecutors in criminal contempt proceedings. Whether or not they will heed Justice Gorsuch’s warnings remains to be seen.

One could argue that Donziger and the continued constitutionality of Rule 42 will have minimal impact, if measured by the number of cases in which Rule 42 is used. By all accounts, the invocation of the rule by judges is rare, which is why Judge Kaplan’s move to appoint private attorneys to prosecute Donziger when the U.S. Attorney’s Office declined to do so was so shocking.¹¹⁹119. See Lerner, supra note 6 (calling Judge Kaplan’s invocation of Rule 42 “virtually unprecedented”); Adam Klasfeld, When Feds Demur, Judge Charges Ecuador Crusader Himself, Courthouse News Serv. (Aug. 13, 2019), https://www.courthousenews.com/when-feds-demur-judge-charges-ecuador-crusader-himself [https://perma.cc/4GPD-Z989] (reporting that only one out of five former federal prosecutors interviewed had heard of a judge appointing a private attorney to prosecute criminal contempt). As of February 2022, aside from Donziger, the records of the Administrative Office of the United States Courts (AO), which assists courts with funding special prosecutors, showed only two other cases in the preceding five years where private counsel served as special prosecutors in criminal contempt cases.¹²⁰120. Those two cases are United States v. Parker and United States v. Kilgallon. Letter from Hon. Roslynn R. Mauskopf, Dir., Admin. Off. of the U.S. Cts., to Edward J. Markey & Sheldon Whitehouse, U.S. Sens. (Feb. 25, 2022). In Parker, the U.S. District Court for the Northern District of Alabama invoked Rule 42 to charge two police officers who had allegedly violated the court’s sequestration order and attempted to intimidate witnesses in an earlier trial in the case. Notice and Order Regarding Contempt Proceeding at 1–2, United States v. Parker, 696 F. App’x 443 (11th Cir. 2017) (No. 126). Based on the publicly available opinions, it is clear that one of the officers was convicted of criminal contempt, a finding that was upheld on appeal. Parker, 696 F. App’x at 444. In contrast to Donziger, though, the officer there was only ordered to pay a $2,500 fine and attend liability-management training. Id. at 446. In Kilgallon, the U.S. District Court for the District of South Dakota used Rule 42 to charge three members of the U.S. Marshals Service who had allegedly allowed the removal of three prisoners from the courthouse without permission from the court after a marshal had refused to tell the judge whether she was vaccinated against COVID-19. United States v. Kilgallon, 572 F. Supp. 3d 713, 717, 721 (D.S.D. 2021). The court ultimately dismissed the criminal contempt charges. Id. at 717. AO only keeps records related to payment, so Parker and Kilgallon may not reflect the entire universe of cases. See Letter from Hon. Roslynn R. Mauskopf to Edward J. Markey & Sheldon Whitehouse, supra.

Still, Rule 42 is used, if only occasionally, including in a recent high-profile case at the appellate level, United States v. Arpaio. There, Maricopa County Sheriff Joseph M. Arpaio was convicted of criminal contempt in federal district court in Arizona and subsequently pardoned by then-President Trump.¹²¹121. United States v. Arpaio, 887 F.3d 979, 980 (9th Cir. 2018). Arpaio asked the district court to vacate its verdict as well as the scheduled sentencing, which it declined to do.¹²²122. Id. at 981. On appeal, the government refused to defend the district court’s order, so the Ninth Circuit resorted to appointing a special prosecutor under Rule 42 so that its merits panel would “receive the benefit of full briefing and argument.”¹²³123. Id. Though it may seem like a strange fit, the facts of Arpaio show how Rule 42 is used by appellate courts in criminal contempt cases.¹²⁴124. On one hand, Arpaio demonstrates a potential use case of Rule 42: The policy preferences of the President change and the government jumps ship mid-proceeding, so to speak, leaving judges to decide cases in the dark. On the other hand, though, Justice Gorsuch might answer that that is entirely within the province of the executive branch. President Trump was elected by the American public—a mandate to carry out his policies, including with respect to pardons and criminal law enforcement, that should be implemented down the chain of command.

The relative infrequency does not render the rule a nullity, nor is it obvious that frequency should be the metric for impact. No doubt when Rule 42 is invoked to prosecute someone for criminal contempt, it can be life-altering for the defendant. With the recent petition of certiorari denial, courts can feel comfortable invoking Rule 42 knowing that the Supreme Court likely won’t take up the question of its constitutionality soon, at least while the composition of the court remains as it is.

It is worth noting that Congress could solidify Rule 42’s constitutionality and quell the Appointments Clause issue by codifying it in a statute. This would obviously qualify as Congress “by Law” vesting appointment authority in the courts, as opposed to its current form of a rule promulgated by the Supreme Court pursuant to the Rules Enabling Act.¹²⁵125. 28 U.S.C. § 2072. But there is no reason to think that such a proposal is top of mind—if anything, there is momentum in the opposite direction. In 2021, while Donziger was in prison, nine members of the House of Representatives wrote to Attorney General Merrick Garland, admonishing that Donziger was in prison “without Executive Branch supervision or ever seeing a jury of his peers,” and requesting that the Department of Justice “reclaim control of th[e] case, dismiss the charges, and free Mr. Donziger from his imprisonment.”¹²⁶126. Letter from Rashida Tlaib & Jesús G. Garcia, Members of Cong., to Hon. Merrick Garland, Att’y Gen., U.S. Dep’t of Just. (Nov. 29, 2021). Concern about Donziger’s case wasn’t limited to the House; also in 2021, two Senators sent a letter to AO asking a series of questions about Rule 42 and raising similar concerns. While there may be congressional support for the rule should the issue come to the fore, these letters indicate that there is some level of discomfort in Congress with Rule 42 in operation. Further, while codifying Rule 42 would alleviate constitutional concerns, it would not cure the bad optics of judges appointing prosecutors in matters before them and the perception of judicial impropriety that caused the uproar in Donziger’s case.¹²⁷127. See, e.g., Jackie Kushner, Note, United States v. Donziger: How the Mere Appearance of Judicial Impropriety Harms Us All, 30 J.L. & Pol’y 533, 553–54 (2022) (arguing that Judge Kaplan’s use of Rule 42 created a perception of bias that undermined judicial legitimacy); Press Release, Int’l Ass’n of Democratic Laws., More than 200 Lawyers File Judicial Complaint Against Judge Lewis A. Kaplan over Abusive Targeting of Human Rights Advocate Steven Donziger (Sept. 1, 2020) (reporting that National Lawyers Guild and International Association of Democratic Lawyers filed a complaint with the Second Circuit alleging that Judge Kaplan was no longer acting as a judge and had “taken on the role of counsel for Chevron”); U.N. Hum. Rts. Council, Opinion No. 24/2021 concerning Steven Donziger (United States of America), at 13 (Oct. 1, 2021) (calling Kaplan’s drafting of criminal charges “a staggering display of lack of objectivity and impartiality”).

B. Reconciling Donziger with Arthrex and Other Recent Appointments Clause Cases

Donziger arrived at the Supreme Court’s desk amidst a period of developments in its Appointments Clause jurisprudence. Recall that in 2021, the Court in Arthrex held that the APJs’ appointment to the Patent Trial and Appeal Board of the PTO—which was not done by the President with the advice and consent of the Senate—was inconsistent with their status as inferior officers.¹²⁸128. See supra notes 62–67 and accompanying text. Writing for the majority, Justice Roberts seemed primarily concerned with the fact that the APJs possessed the power to issue binding decisions on patentability that were not reviewable by the Director of the PTO, who is a principal officer appointed by the President with advice and consent of the Senate.¹²⁹129. United States v. Arthrex, Inc., 594 U.S. 1, 14 (2021) (noting that, in contrast to inferior officer appointment schemes previously approved of by the Court, “no principal officer at any level within the Executive Branch directs and supervises the work of the APJs” when they are exercising their power to issue decisions on patentability). In Justice Roberts’s eyes, such a “diffusion of power carries with it a diffusion of accountability.”¹³⁰130. Id. at 15 (quoting Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 497 (2010)). A party to a case pending before an APJ is “left with neither an impartial decision by a panel of experts nor a transparent decision for which a politically accountable officer must take responsibility.”¹³¹131. Id. at 16. Such a system “blur[s] the lines of accountability demanded by the Appointments Clause,” and ultimately leaves the public wondering who to hold to account.¹³²132. Id. This concern about democratic accountability is not limited to the Court’s Appointments Clause jurisprudence. Rather, it extends to other doctrines that implicate federalism or separation of powers questions in which the Court is troubled that the public either won’t be able to identify or will be confused about who is responsible for a governmental decision or policy—for example, the anti-commandeering doctrine. See New York v. United States, 505 U.S. 144, 182–83 (1992) (holding that a federal statute can be an unconstitutional infringement of state sovereignty even when state officials consent to the statute because the proper public officials need to be held accountable to voters); Printz v. United States, 521 U.S. 898, 919–23 (1997) (holding that it is unconstitutional for a federal law to force state participation in a federal regulatory program because a state must remain accountable to its citizens). These issues are also live with the Court’s jurisprudence on the Chevron doctrine and deference to agencies. See infra Part III.C.

Interestingly, though Justice Roberts was preoccupied with the lack of democratic accountability in the context of the APJs, he did not dissent from the Court’s denial of the Donziger certiorari petition, though accountability concerns were arguably just as live. The special prosecutors in Donziger were appointed by a federal judge and then proceeded to operate for the rest of the litigation without supervision by any principal officer. Indeed, the DOJ, after declining to prosecute Donziger itself, was wholly absent from the case until the days leading up to the criminal contempt trial when Donziger requested that it intervene—a request it explicitly rejected.¹³³133. See supra notes 50–51 and accompanying text. Even after Judge Preska resolved that the special prosecutors were executive branch officials who needed to be supervised by a principal officer in the executive branch in order to properly be inferior officers under the Appointments Clause (to the chagrin of the special prosecutors, who were under the impression that they were extensions of the judiciary), the DOJ refused to exercise oversight over them through the rest of the litigation, even filing briefing separate from the special prosecutors in the Second Circuit.¹³⁴134. See supra note 76 and accompanying text. The complete lack of principal officer supervision over the special prosecutors appears more egregious than the level of supervision the PTO Director exercised over the APJs.

One way to reconcile Arthrex and Donziger is on the text of the relevant statutes: The PTO director did not have the statutory authority to review the decisions of the APJs in the context of inter partes review,¹³⁵135. See United States v. Arthrex, Inc., 594 U.S. 1, 8–9 (2021) (summarizing the process for inter partes review as provided in 35 U.S.C. §§ 6(c), 316(a)(11), 316(c)). whereas the DOJ does have the statutory authority to supervise the special prosecutors,¹³⁶136. See Donziger II, 38 F.4th 290, 300–01 (2d Cir. 2022), cert. denied, 143 S. Ct. 868 (2023) (summarizing the Attorney General’s “broad authority to conduct and to supervise all litigation involving the United States” as provided in 28 U.S.C. §§ 516–19). it just wholesale refused to use it. Thus, in a world of perfect information and constitutional clarity about the status of the special prosecutors, voters could hold the President to account at the polls for the DOJ’s decision not to intervene. However, the real world looks very different: If the special prosecutors themselves didn’t believe the DOJ had authority to supervise them initially, how could the public be expected to see through the chaos and know where to situate them between the executive and the judicial branches? If the Court is genuinely concerned about accountability in practice and not just accountability in theory, then, consistent with Arthrex, the Court should feel uncomfortable with the lack of executive branch oversight of the special prosecutors.

Arthrex was not a one off, but rather the latest in a series of cases where the Supreme Court came down hard on agency structures that ran afoul of the Appointments Clause. One year earlier, in Seila Law LLC v. Consumer Financial Protection Bureau, the Court held that the Consumer Financial Protection Bureau’s leadership by a single director removable only for cause was unconstitutional.¹³⁷137. Seila L. LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183 (2020). And, in 2018, in Lucia v. Securities and Exchange Commission, the Court held that the SEC’s administrative law judges were “officers” within the meaning of the Appointments Clause and therefore had to be appointed in accordance with it.¹³⁸138. Lucia v. S.E.C., 138 S. Ct. 2044, 2049 (2018). Though less directly applicable on their facts to Donziger, these cases, together with Arthrex, represented the Court bringing executive branch officials more squarely under the President’s chain of command. This made the Court declining to touch Rule 42 in Donziger a departure not only from the Court’s last word on the matter in Arthrex, but from a broader trend of rigidly enforcing the Appointments Clause and prioritizing the President’s control over officers in the executive branch.

One other way to distinguish between Donziger and the Court’s recent Appointments Clause jurisprudence is that, in Donziger, the Court is being asked to invalidate the constitutionality of a rule that, as articulated in Young, is fundamentally aimed at enabling the judiciary to vindicate its own authority.¹³⁹139. See Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 793, 796 (1987). One could speculate that the Court is operating from a defensive posture, animated by concerns of judicial embarrassment without Rule 42 as a mechanism to prosecute uncooperative defendants. The Court’s self-consciousness of its own power, and its inclination to be the final arbiter of the bounds of such power, sounds in other doctrines, including Article III standing,¹⁴⁰140. See, e.g., Spokeo, Inc. v. Robins, 578 U.S. 330, 331–32, as revised (May 24, 2016) (holding that Congress cannot create standing merely through granting statutory rights, and thus, courts decide whether a plaintiff has suffered concrete injury to satisfy standing). the political question doctrine,¹⁴¹141. See, e.g., Rucho v. Common Cause, 139 S. Ct. 2484, 2499–502 (2019) (holding that partisan gerrymandering is a political question not justiciable by an Article III court for lack of judicially manageable standards). and enforcement power under Section Five of the Fourteenth Amendment.¹⁴²142. See, e.g., City of Boerne v. Flores, 521 U.S. 507, 519–20 (1997) (holding that in order for Congress to legislate pursuant to its Section Five enforcement power under the Fourteenth Amendment, the injury to be prevented or remedied must be congruent and proportional to the means adopted).

C. This Term: Donziger and Relentless

It is worth pausing to note another context in which the Court is actively weighing democratic accountability and separation of powers concerns: the Chevron doctrine. The doctrine, formalized in the 1984 case Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., provides that courts should defer to reasonable agency interpretations of ambiguous congressional statutes.¹⁴³143. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984). In recent years, conservatives on the court—chief among them, Justice Gorsuch—have taken aim at the doctrine, arguing that it displaces the role of the judiciary to interpret the law,¹⁴⁴144. See Buffington v. McDonough, 143 S. Ct. 14, 18 (2022) (Gorsuch, J., dissenting) (quoting Marbury v. Madison, 5 U.S. 137, 178 (1803)) (discussing how in the American judicial system, individuals can bring their disputes to neutral tribunals and trust that they will say “what the law is”). systematically favors the government in disputes,¹⁴⁵145. See id. at 19 (“We place a finger on the scales of justice in favor of the most powerful of litigants, the federal government, and against everyone else.”). is unworkable,¹⁴⁶146. See id. at 19–20 (noting that lower courts have pursued “wildly different” approaches to deciding when a statute is sufficiently ambiguous to merit Chevron deference). and creates instability from administration to administration,¹⁴⁷147. See id. at 20 (“When one administration departs and the next arrives, a broad reading of Chevron frees new officials to undo the ambitious work of their predecessors and proceed in the opposite direction with equal zeal. In the process, we encourage executive agents not to aspire to fidelity to the statutes Congress has adopted, but to do what they might while they can.”). among other critiques. Lingering in the background is the idea that Chevron deference undermines democratic accountability in the long run by allowing a democratically elected Congress to pass ambiguous statutes and shirk policymaking responsibilities onto unelected agencies.¹⁴⁸148. See Petition for Writ of Certiorari at 31, Loper Bright Enters. v. Raimondo, No. 22-451 (Nov. 10, 2022) (“It is far easier to gin up ambiguity in a statute than it is to run the gauntlet of bicameralism and presentment . . . . Worse still, it is far harder for Congress to enact new legislation when one party or the other can rely on their friends in the executive branch to fix the problem without the hassle and accountability that comes with actually legislating.”); cf. Lisa Schultz Bressman, Deference and Democracy, 75 Geo. Wash. L. Rev. 761, 778–86 (arguing that in cases where the Court has not deferred to the agency’s interpretation, the agency acted inconsistently with congressional or popular will, and Presidential elections are an insufficient check on agency action). This is similar to, but distinct from, the accountability concern in the Appointment Clause context about agency officials being insulated from Presidential (and therefore democratic) control.

This term, the Court’s conservative majority appears poised to overturn or seriously weaken Chevron in a pair of cases called Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo. The cases challenge a rule issued by the National Marine Fisheries Service, upheld by both the U.S. Court of Appeals for the District of Columbia Circuit and the U.S. Court of Appeals for the First Circuit applying Chevron deference.¹⁴⁹149. Amy Howe, Supreme Court Likely to Discard Chevron, SCOTUSblog (Jan. 17, 2024, 6:58 PM), https://www.scotusblog.com/2024/01/supreme-court-likely-to-discard-chevron/. During oral arguments, the government made an accountability argument in the opposite direction: If the choice is between agency and judicial interpretations of ambiguous statutes, at least agencies are politically accountable vis-à-vis presidential elections, whereas federal judges are unelected.¹⁵⁰150. See Transcript of Oral Argument at 124, Relentless, Inc. v. Dept. of Commerce, No. 22-1219 (2024) (arguing that in a world without Chevron deference, with potentially each lower court interpreting ambiguous statutes differently, “the force of the political accountability value” would be diminished); see also id. at 99 (Justice Ketanji Brown Jackson recognizing the people elect the presidential administration on the basis of policy, but that federal judges “are not accountable to the people and have lifetime appointments”). The conservative members of the Court did not appear persuaded,¹⁵¹151. See id. at 132 (Justice Gorsuch expressing concern that Chevron almost always favored agencies over individuals “who have no power to influence agencies, who will never capture them, and whose interests are not the sorts of things on which people vote, generally speaking”). and seemed more concerned with Chevron allowing agencies to interpret the law where the judiciary should be doing so.¹⁵²152. See id. at 22 (Justice Gorsuch expressing concern that under Chevron, “judge[s] abdicate th[eir] responsibility and say automatically whatever the agency says wins”); see id. at 142 (Justice Kavanaugh stating that it is “the role of the judiciary historically under the Constitution to police the line between the legislature and the executive to make sure that the executive is not operating as a king, not operating outside the bounds of the authority granted to them by the legislature”). The Court’s movement toward overturning Chevron provides yet another example of the modern Court enforcing a strict vision of separation of powers. This makes its comfort with Article III judges appointing Article II special prosecutors without express statutory authorization in Donziger all the more anomalous.

Conclusion

Donziger is no longer in prison or under house arrest.¹⁵³153. Molly Taft, Environmental Lawyer Targeted by Chevron Freed After More Than Two Years Under House Arrest, Amazon Watch (Apr. 26, 2022), https://amazonwatch.org/news/2022/0426-environmental-lawyer-targeted-by-chevron-freed-after-more-than-two-years-under-house-arrest [https://perma.cc/R4YF-C9GZ]. The Supreme Court has declined to decide the question of whether his prosecution was constitutional, at least for now.¹⁵⁴154. See Donziger III, 143 S. Ct. 868 (2023). But, regardless of the propriety of Donziger’s conduct, there are reasons to be uncomfortable with his prosecution at the hands of judicially-appointed private prosecutors and without DOJ supervision.

Rule 42 is a double offender. It feels wrong on a gut level: It resembles a bait-and-switch to defendants who would not have been charged had their case been left to the executive branch, which, according to the Supreme Court, has “exclusive authority and absolute discretion to decide whether to prosecute a case.”¹⁵⁵155. United States v. Nixon, 418 U.S. 683, 693 (1974). Rule 42 is also unsupported by the text of the Constitution because it vests appointment authority in the courts without Congress doing so explicitly through legislation. If the Supreme Court had taken its own mandate in its Appointment Clause jurisprudence seriously and was truly skeptical of the blending of the separation of powers, it should have heeded the warnings of Judge Menashi and Justice Gorsuch and granted the petition for the writ of certiorari in Donziger.

June 17, 2024

United States v. Patterson

Elizabeth Bays

Elizabeth Bays²2. * Copyright © 2024 by Elizabeth Bays. J.D., 2023, New York University School of Law. Thank you to the New York University Law Review editors for all of their hard work and helpful suggestions along the way. This piece is dedicated to John Scanlan, who first taught me evidence law.

Recent Case: United States v. Patterson, No. 21-1678-cr, 2022 U.S. App. LEXIS 35264, at *12–13 (2d Cir. Dec 21, 2022).

Introduction

In the wake of the COVID-19 pandemic, questions about the constitutionality of testimony using two-way video platforms like Zoom have gained greater prominence and taken on greater urgency. These questions have played out in both state and federal courts.³3. See, e.g., United States v. Akhavan, 523 F. Supp. 3d 443 (S.D.N.Y. 2021) (addressing a Sixth Amendment challenge to video testimony); United States v. Casher, No. CR 19-65-BLG-SPW, 2020 U.S. Dist. LEXIS 106293 (D. Mont. June 17, 2020); State v. Tate, 969 N.W.2d 378, 391 (Minn. Ct. App. 2022). Ordinarily, video testimony by prosecution witnesses in criminal cases is a nonstarter with any court in the United States. This reticence to adopt video technology stems from the protections of the Sixth Amendment.⁴4. Maryland v. Craig, 497 U.S. 836, 850 (1990) (declaring that the right to face-to-face confrontation—as opposed to video confrontation—may not be easily dispensed with). The Confrontation Clause of the Sixth Amendment guarantees defendants the right to confront their accusers in court.⁵5. U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”). The Supreme Court has held that this requires face-to-face, in-person testimony from prosecution witnesses,⁶6. Coy v. Iowa, 487 U.S. 1012, 1016 (1988) (“We have never doubted, therefore, that the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before trial.”). even if such confrontation is inconvenient or even traumatic for the parties involved.⁷7. Id. at 1020 (“The State can hardly gainsay the profound effect upon a witness of standing in the presence of the person the witness accuses, since that is the very phenomenon it relies upon to establish the potential ‘trauma’ that allegedly justified the extraordinary procedure in the present case.”).

This general prohibition on video testimony is not simply a matter of conforming to some esoteric interpretation of what the Framers expected trials to look like.⁸8. Although the constitutional issue alone should give proponents of video testimony pause. Using video testimony can materially degrade the experiences of witnesses, the reliability of their testimony, and, most importantly, the ability of fact finders to evaluate their credibility. For instance, people are more likely to lie during virtual conversations than in-person ones.⁹9. In 2004 in a seminal paper by Hancock et al, researchers examined the effects of digital communication on the likelihood that someone will lie. Jeffrey T. Hancock, Jennifer Thom-Santelli & Thompson Ritchie, Deception and Design: The Impact of Communication Technology on Lying Behavior, in Proceedings of the SIGCHI Conference on Human Factors in Computing Systems 129 (2004). They collected data on the effects of three features present in different types of digital communication: synchronicity (i.e., the degree to which messages are communicated in real-time), recordability (i.e., the degree to which the interaction is automatically documented and preserved), and distribution (i.e., whether the users are physically co-present). Id. at 130. They found that people were most likely to lie when they communicated in an unrecorded, synchronous, distributed environment (i.e., one in which people must communicate digitally rather than face to face, in real-time, and are not recorded). Id. at 133. In 2022, David Markowitz replicated and expanded the findings of the Hancock study with more modern technology. David M. Markowitz, Revisiting the Relationship Between Deception and Design: A Replication and Extension of Hancock et al. (2004), 48 Hum. Commc’n Rsch. 158 (2022). Markowitz found that lying is more dependent on the personal characteristics of the speaker than on the type of media used. Id. at 163. However, he also found that people were slightly more likely to lie over the phone or over video chat than they were in face-to-face communications. Id. at 163 tbl.2 (finding 11.77% mean percentage of lies during phone interactions and 12.31% during video chat interactions, as compared to 9.55% in face-to-face settings). Jurors already struggle to evaluate credibility based on the demeanor of live witnesses;¹⁰10. See Julia Simon-Kerr, Unmasking Demeanor, 88 Geo. Wash. L. Rev. Arguendo 158, 166–67 (2020) (explaining that reliance on visual cues of demeanor results undermines juries’ abilities to distinguish truth from deception). they struggle even more with virtual witnesses, whose eye contact and posture are obscured by the virtual format.¹¹11. See Susan A. Bandes & Neal Feigenson, Virtual Trials: Necessity, Invention, and the Evolution of the Courtroom, 68 Buff. L. Rev. 1275, 1294–1300 (2020) (indicating that viewers may misconstrue the apparent lack of eye contact from witnesses produced by those witnesses looking at the screen rather than the camera and the absence of physical cues, such as posture); see also Daniel M. Bialer, Note, Assessing Witness Demeanor in the Age of COVID-19 and Beyond, 31 Cornell J.L. & Pub. Pol’y 451 472–73 (2022) (describing distortions in demeanor evidence stemming from virtual testimony and recommending that its use be limited). The virtual format can create emotional distortions for the jury as they struggle to connect with a witness appearing online.¹²12. See Bandes & Feigenson, supra note 9, at 1292–1300 (describing difficulties juries have in evaluating virtual testimony). Meanwhile, issues with audio quality are common, leading to jurors having difficulty processing information.¹³13. See id. at 1301–02 (describing the risk of viewers attributing the negative feelings arising out of “poor audio quality” or “lack of synchronicity between video and audio” to witnesses themselves). At this stage, an indiscriminate increase in the use of video testimony poses a substantial risk, not just to a constitutional principle, but to the reliability of our trials.

As a result, it is important that courts set clear parameters around the use of video testimony. Academic literature since 2020 has focused on the sufficiency of the COVID-19 pandemic as a justification for video testimony,¹⁴14. See, e.g., Jessica Arden Ettinger, David Gerger & Barry J. Pollack, Ain’t Nothing Like the Real Thing: Will Coronavirus Infect the Confrontation Clause?, Champion, May 2020, at 57–59 (arguing that the pandemic does not justify abridging defendants’ confrontation rights without more specific factual findings); Brandon Marc Draper, Revenge of the Sixth: The Constitutional Reckoning of Pandemic Justice, 105 Marq. L. Rev. 205, 259–63 (2021) (arguing for a constitutional amendment to permit virtual trials); Garret Stone, Please Unmute Yourselves, Court Is Now In Session—The Future of the Confrontation Clause Post-COVID-19, 11 Wake Forest J.L. & Pol’y 133, 147 (2021) (arguing that the pandemic justifies virtual testimony for auxiliary witnesses like experts, character witnesses, and witnesses brought in for authentication purposes, but not for vital eyewitnesses with first-hand knowledge of the crime). the scientific evidence needed to back a finding of such sufficiency,¹⁵15. See Elizabeth Bays, Note, Mr. Crawford Gets COVID: Courts’ Struggle to Preserve the Confrontation Clause During COVID and What It Teaches Us About the Underlying Rights, 98 N.Y.U. L. Rev. 239, 259–63 (2023) (arguing that undue deference was given to executive branch determinations of scientific necessity). and the relative merits of video testimony as compared to other forms of modified confrontation during a global health crisis.¹⁶16. See id. at 257–59 (noting that, depending on which aspect of the confrontation right judges found most important, different modes of modified confrontation are were practiced); Ayyan Zubair, Note, Confrontation After COVID, 110 Calif. L. Rev. 1689, 1708–10 (2022) (arguing that Rule 15 depositions should have been used as an alternative to video testimony); Zoë Green Appler, Note, COVID-19 & The Sixth Amendment: Questions of Confrontation, Credibility, and Constitutionality in Cook County’s Courtrooms, 71 Chi.-Kent L. Rev 441, 466–70 (2022) (arguing in favor of virtual testimony over socially distanced in-person testimony because of courthouse capacity issues and proposing best practices for such virtual testimony). Yet, even before a court reaches the question of whether video testimony should be allowed in a particular case or during a particular crisis, it must decide which standard it plans to use in answering that question. For that reason, there has been renewed interest in a longstanding circuit split over the standard that should be used by trial courts when deciding whether to permit video testimony.

In United States v. Patterson, the Second Circuit reaffirmed its rather idiosyncratic standard for the use of video testimony.¹⁷17. United States v. Patterson, No. 21-1678-cr, 2022 U.S. App. LEXIS 35264, at *12–13 (2d Cir. Dec 21, 2022) (“The district court rightly applied Gigante in determining whether Elliott could testify via two-way video.”). Patterson involved a set of facts common to many COVID-era video testimony decisions: The trial took place in early 2021, before vaccines were widely available and while air travel was still considered quite risky, yet medically fragile witnesses from out of town needed to be procured.¹⁸18. Id.; United States v. Akhavan, 523 F. Supp. 3d 443, 452 (S.D.N.Y. 2021) (citing then-current CDC recommendations against travel); see also, e.g., United States v. Davis, No. 19-101-LPS, 2020 U.S. Dist. LEXIS 196624 at *8–11 (D. Del. Oct. 23, 2020) (“[T]he Court is merely concluding that each of the seven witnesses identified by the government is—based principally on a combination of his or her distance from Delaware and his or her particularized risk factors—. . . ‘unavailable’ to testify at trial.”); State v. Milko, 505 P.3d 1251, 1253 (Wash. Ct. App. 2022) (describing two witnesses complaints that “they were not able to fly to Washington to give their trial testimony in person because of significant health concerns related to COVID-19”). A key witness to the prosecution’s case was located in California, while the trial was taking place in New York.¹⁹19. United States v. Akhavan, 523 F. Supp. 3d 443, 446 (S.D.N.Y. 2021). The witness was 57 years-old and suffered from several conditions that exacerbated his risk of serious complications should he contract COVID-19.²⁰20. Id. at 451. So, he requested permission to testify from California via two-way video, rather than traveling to New York City.²¹21. Id. The district court permitted that accommodation.²²22. Id. at 456.

In affirming the district court’s decision, the Second Circuit reconsidered and eventually reaffirmed its own longstanding precedent from United States vs. Gigante which permits video testimony upon a finding by the district court that “exceptional circumstances” exist and that permitting the video testimony would “further the interest of justice.”²³23. United States v. Patterson, No. 21-1678-cr, 2022 U.S. App. LEXIS 35264, at *11 (2d Cir. Dec 21, 2022) (citing United States v. Gigante, 166 F.3d 75, 80–82 (2d Cir. 1999)). That standard has been widely criticized by courts in other jurisdictions as too permissive of video testimony. Indeed, all other circuits that have considered the “exceptional circumstances” standard from Gigante have rejected it, as have some state courts of last resort.²⁴24. See, e.g., United States v. Bordeaux, 400 F.3d 548, 554 (8th Cir. 2005) (rejecting the Gigante standard as inconsistent with both the Eighth Circuit’s and the Supreme Court’s Sixth Amendment precedent); United States v. Yates, 438 F.3d 1307, 1312–13 (11th Cir. 2006) (rejecting the Gigante standard as inconsistent with the Supreme Court’s Sixth Amendment precedent); People v. Jemison, 505 Mich. 352, 355–56 (2020) (rejecting video testimony as violative of state and federal constitutional rights to confrontation); State v. Tate, 985 N.W.2d 291 (Minn. 2023) (same). In the wake of the pandemic, some federal district courts have followed the Second Circuit, but these have not yet been reviewed by the relevant circuits. See, e.g., United States v. Davis, No. 19-101-LPS, 2020 U.S. Dist. LEXIS 196624, at *8, *13 (D. Del. Oct. 23, 2020) (citing to the Second Circuit’s Gigante standard); United States v. Cole, No. 1:20-cr-424, 2022 U.S. Dist. LEXIS 17300 at *8 (N.D. Ohio Jan. 31, 2022) (adopting the lower court’s Gigante approach but claiming that the two-way closed circuit testimony at issue would be acceptable “even under the higher standard applied in other circuits”). In Patterson, the defendants challenged the Gigante standard, but the Second Circuit declined to change course.²⁵25. Patterson, 2022 U.S. App. LEXIS 35264, at *11. Applying the Gigante standard, the Second Circuit found that, because the witness could not travel across the country without exposing himself to the risk of serious illness, exceptional circumstances warranted the use of video testimony.²⁶26. Id. at 12–13.

The Defendants in Patterson, Akhavan and Weigand, petitioned the Supreme Court for certiorari on March 2, 2023.²⁷27. Petition for Writ of Certiorari, Akhavan v. United States, 143 S. Ct. 2639 (2023) (No. 22-844). The petition was denied on June 20, 2023,²⁸28. Weigand v. United States, 143 S. Ct. 2639, 2639 (2023). leaving courts across the country with a lack of clarity on the permissibility of video testimony going forward.

I. Background

A. The Situation at Trial

Defendants Akhavan and Weigand were charged with conspiracy to obtain money from a financial institution by false representation in connection with their work for a company called Eaze.²⁹29. Patterson, 2022 U.S. App. LEXIS 35264, at *1–2. Eaze is an on-demand marijuana delivery service that partnered with local marijuana retailers to provide marijuana products to customers in states that allowed such products.³⁰30. Petition for Writ of Certiorari at 4, Akhavan v. United States, 143 S. Ct. 2639 (2023) (No. 22-844). Many financial institutions, including Visa and Mastercard, have policies that prohibit credit card activity connected with “unlawful transactions.”³¹31. United States v. Akhavan, No. 20-cr-188, 2021 U.S. Dist. LEXIS 124370, at *7 (S.D.N.Y. July 2, 2021). Because the sale and distribution of marijuana are still illegal at the federal level, the financial institutions’ policies would not permit customers to make bulk purchases through Eaze.³²32. Id. at *6–7. This was despite the fact that the transactions were perfectly legal under state law in the states where the customers were making their purchases.³³33. United States v. Weigand, 482 F. Supp. 3d 224, 232–33 (S.D.N.Y. 2020).

Akhavan and Weigand circumvented these restrictions by contracting to run their transactions through fake companies that did not appear to be marijuana-related.³⁴34. Id. Thus, when customers made purchases, their transactions would not trigger the credit card companies’ policies.³⁵35. Id. The government claimed that the defendants were conspiring to obtain money from the credit card companies by means of a material misrepresentation about the nature of the transactions, in violation of 18 U.S.C. § 1349 and 18 U.S.C. § 1344.³⁶36. United States v. Patterson, No. 21-1678-cr, 2022 U.S. App. LEXIS 35264, at *1 (2d Cir. Dec 21, 2022).

One of the defenses the defendants raised was that the misrepresentations were non-material—i.e., that the credit card companies would have processed the marijuana transactions anyway, regardless of their official policies.³⁷37. Akhavan, 2021 U.S. Dist. LEXIS 124370, at *4–12. As a result, testimony from Visa and Mastercard employees about the companies’ practices regarding marijuana transactions became a key piece of the trial.³⁸38. United States v. Akhavan, No. 20-cr-188, 523 F. Supp. 3d 443, 451 (S.D.N.Y. 2021) (quoting the defense as claiming that “questions about what Visa’s policies did (or did not) require and how Visa did (or did not) enforce those policies are among the most critical questions in this case”). In order to produce this critical testimony, both the government and the defense issued subpoenas to Visa to testify at trial.³⁹39. Id. Visa elected to have Martin Elliott, its Global Head of Franchise Risk Management during the relevant period, perform that function.⁴⁰40. Id.

Unfortunately, Mr. Elliott was not an ideal candidate to travel to New York City (where the trial was taking place) in the middle of a global pandemic. He lived in California and did not want to fly to New York for fear of contracting COVID-19 during the necessary air travel.⁴¹41. Id. at 451–52. He was not yet vaccinated, nor were other members of his household.⁴²42. Id. at 451. He was 57-years-old and suffered from both hypertension and atrial fibrillation, both of which significantly raise the risks associated with COVID-19 infection.⁴³43. Id. at 451–52. He lived with his 55-year-old wife who also suffered from hypertension and his 83-year-old mother-in-law who faced significant COVID-related risks associated with her age.⁴⁴44. Id. at 451–52. Thus, his travel to and from New York would place himself and his co-residents in danger.

Over the defense’s objections, the court permitted Elliott to testify remotely.⁴⁵45. Id. at 456. In order to make the testimony as fair as possible, the court required Visa to ensure a high-quality video connection between the office and the courtroom.⁴⁶46. Id. The court ensured that Elliott could see the defendant, defense counsel, the questioning attorney, the judge, and the jurors, and that he could be seen by them in turn while testifying.⁴⁷47. Id. The court also permitted the defendants to send representatives to California to be present in person during the testimony if they so desired.⁴⁸48. Id.

Despite these procedures, however, the testimony quickly became awkward, as complicated conversations over Zoom so often do. Defense counsel later claimed that they had increased difficulty exercising witness control or pinning Elliott to yes or no answers because of video lag.⁴⁹49. Petition for Writ of Certiorari at 10–11, Akhavan v. United States, 143 S. Ct. 2639 (2023) (No. 22-844). There were several points when the witness’s screen froze, creating confusion and delays.⁵⁰50. Id. at 10. There were also multiple instances where Elliott had difficulty authenticating documents efficiently—or in one case, at all—because of the virtual format.⁵¹51. Id. at 9–10 (“Because a redacted portion of the exhibit was ultimately admitted into evidence only after Elliott testified, however, the defense was unable to ask him about it. And the court refused to allow the defense to recall Elliott in light of logistical impediments . . . .”).

B. The Second Circuit’s Legal Framework and Its Application

The purported permission for the modification of testimony that occurred in Patterson stems from the Supreme Court’s decision in Maryland v. Craig.⁵²52. United States v. Patterson, No. 21-1678-cr, 2022 U.S. App. LEXIS 35264, at *11–13 (2d Cir. Dec. 21, 2022); Maryland v. Craig, 497 U.S. 836 (1990). There, the Court held that the right to face-to-face confrontation is not absolute.⁵³53. Craig, 497 U.S. at 844–50. In that case, the Court was faced with a situation in which a traumatized child victim of sexual assault had been permitted to testify in a separate room.⁵⁴54. Id. at 840–43. The attorneys for both sides had been present with the child to question her, and the jury and defendant were permitted to view the questioning via one-way, closed-circuit television.⁵⁵55. Id. at 841. The Court ruled that, in cases where one-way video testimony was “necessary to further an important public policy” and the reliability of the means of modified testimony was otherwise assured, such modification was permissible.⁵⁶56. Id. at 850.

The Second Circuit took the reasoning in Craig a step further in Gigante.⁵⁷57. United States v. Gigante, 166 F.3d 75, 80–81 (2d Cir. 1999). In Gigante, a testifying witness for the prosecution asked to testify using two-way, closed-circuit video because his doctors were afraid that travel to the courthouse from the location where he was currently in federal witness protection would put his health in serious jeopardy.⁵⁸58. Id. at 79. The Second Circuit rebalanced the interests and reasoned that, because the mechanism for testimony was not one-way video testimony but rather two-way video testimony which allowed interaction between the participants in the courtroom and the remote participants, less justification was needed for its use.⁵⁹59. Id. at 80–81. In particular, the court noted that two-way video preserved the giving of testimony under oath, the opportunity for live cross-examination, and the ability of the jury to observe demeanor.⁶⁰60. Id. at 80. Thus, the court dispensed with the Craig necessity standard for two-way video.⁶¹61. Id.

Instead, the court analogized the situation to a Rule 15 deposition.⁶²62. Id. at 81 (“A more profitable comparison can be made to the Rule 15 deposition . . . .”); Fed. R. Crim. P. 15(a)(1). Rule 15(a)(1) of the Federal Rules of Criminal Procedure provides that a “party may move that a prospective witness be deposed in order to preserve testimony for trial. The court may grant the motion because of exceptional circumstances and in the interest of justice. . . . [I]t may also require the deponent to produce at the deposition any designated material that is not privileged . . . .” In general, the defendant has the right to be present or, at the very least to “meaningfully participate.” Fed. R. Crim. P. 15(c)(3)(E). The defendant always has the right to cross-examine the deposed witness in the same “scope and manner . . . as would be allowed during trial.” Fed. R. Crim. P. 15(e)(2). These depositions may then be admitted into evidence at trial subject to the Federal Rules of Evidence. Fed. R. Crim. P. 15(f). In both cases, the modified means of testimony preserves some of the essential features of confrontation (e.g., the oath and cross examination) but misses some of the finer points. Rule 15 depositions preserve the oath, the opportunity for cross-examination, and the ability of the defendant to be copresent with the witness, but eliminates the ability for the witness to be copresent with the jury, allowing the jury to observe their demeanor.⁶³63. See Gigante, 166 F.3d at 81 (explaining how Rule 15 would allow the admission of a transcript of a deposition and thereby preclude the jury from visually assessing witness demeanor). Two-way video preserves the oath, the opportunity for cross-examination, and the ability for the jury to observe demeanor evidence, but does not require the witness to come face-to-face with the defendant. The court in Gigante reasoned that the two forms of modified confrontation were similarly effective and that, if anything, two-way video confrontation was more reliable than a Rule 15 deposition because it preserved demeanor evidence (a historical touchstone of confrontation).⁶⁴64. Id.

Rule 15 depositions may be taken and preserved “because of exceptional circumstances and in the interest of justice.”⁶⁵65. Fed. R. Crim. P. 15(a)(1). And, when a witness subsequently becomes unavailable due to death, illness, privilege, or other qualifying condition, the transcript of the Rule 15 deposition may be used as substantive evidence at trial.⁶⁶66. Fed. R. Evid. 804(b)(1) (allowing former testimony by an unavailable witness as an exception to the rule against hearsay). The Gigante court reasoned that if it would have been permissible under the Confrontation Clause to have the witness take a Rule 15 deposition and to read that deposition into the record at trial, it must also be permissible to use two-way video testimony, which is relatively (in the court’s eyes) more reliable.⁶⁷67. Gigante, 166 F.3d at 81 (noting that two-way video testimony “may provide at least as great protection of confrontation rights as Rule 15”). Therefore, the court fashioned a new standard based on the standard for Rule 15 depositions. In the Second Circuit, “upon a finding of exceptional circumstances, . . . a trial court may allow a witness to testify via two-way closed-circuit television when this furthers the interest of justice.”⁶⁸68. Id.

Unsurprisingly, with circumstances so closely mirroring those in Gigante, the Second Circuit in Patterson upheld a finding that requiring Elliott to come to the Southern District of New York courthouse in the middle of a pandemic would put him at risk of “serious illness or death.”⁶⁹69. United States v. Patterson, No. 21-1678-cr, 2022 U.S. App. LEXIS 35264, at *12 (2d Cir. Dec. 21, 2022) (upholding the district court’s finding of exceptional circumstances). Thus, the court concluded that the individualized dangers he was facing constituted the type of exceptional circumstances which made the witness unavailable to testify in an ordinary manner, just as the illness in Gigante did.⁷⁰70. Id. at *12–13. The use of two-way video was permissible.⁷¹71. Id. at *13.

II. A Widening Circuit Split

This permissive understanding of the Confrontation Clause has not been well-received by other jurisdictions. Therefore, while the Second Circuit abides by their Rule 15-based standard, the rest of the country has been divided over two other standards, one put forward by the Michigan Supreme Court and one used by the majority of other jurisdictions.

A. The Majority View

The majority of federal circuits and the majority of states simply continue to apply the Craig standard, rejecting requests to adopt the more lenient standard advocated by the Second Circuit.⁷²72. See, e.g., United States v. Bordeaux, 400 F.3d 548, 554 (8th Cir. 2005) (applying the Craig standard to two-way video testimony); United States v. Carter, 907 F.3d 1199, 1202 (9th Cir. 2018) (same); United States v. Yates, 438 F.3d 1307, 1313 (11th Cir. 2006) (same); Harrell v. State, 709 So. 2d 1364, 1368–69 (Fla. 1998) (same); State v. Rogerson, 855 N.W.2d 495, 504 (Iowa 2014) (same); State v. Tate, 985 N.W.2d 291, 294 (Minn. 2023) (same). While two-way video may be a closer approximation of in-court testimony than one-way video, these courts note that it is, nonetheless, still an approximation.⁷³73. See Bordeaux, 400 F.3d at 554 (noting that the continued application of Craig is justified since two-way confrontation is a “virtual, and not real” approximation). It loses some of the intangible formality and ordeal of appearing in the courtroom and, therefore, may do less to impress upon the witness the importance of truth-telling.⁷⁴74. See id. (noting that two-way video does not provide the same “truth-inducing effect” as in-court testimony). It also places a level of abstraction between the defendant and the witness, even if the witness can see the image of the defendant. Courts worry that this abstraction will get in the way of the “say it to my face” effect produced by forcing the witness to say things while copresent with the defendant.⁷⁵75. See id. It is, therefore, not constitutionally equivalent to in-court testimony.⁷⁶76. See id.

These courts then read Craig as not merely setting out a standard for one-way video testimony.⁷⁷77. See Yates, 438 F.3d at 1314 (rejecting the argument that Craig does not apply to two-way video testimony). Rather, it sets forth a scrutiny standard that controls when the government can create exceptions to a defendant’s confrontation rights.⁷⁸78. See id. Because two-way video is an abridgement of the defendant’s confrontation rights, these courts reason, it must be held to the necessity standard.⁷⁹79. See id.

As for the argument that two-way video must be permissible because it is less disruptive to constitutional rights than Rule 15 depositions, majority courts point to the Supreme Court’s differentiation between two-way video and Rule 15 depositions. Rule 15 is an official rule of criminal procedure which has been approved by the Supreme Court.⁸⁰80. 28 U.S.C. § 2072; Fed. R. Crim. P. 15. Its allowance into the rules of procedure, majority courts suppose, is because of its “carefully-crafted provisions . . . that were designed to protect defendants’ rights to physical face-to-face confrontation” by allowing the defendant to be physically present at such a deposition.⁸¹81. See Yates, 438 F.3d at 1315.

Two-way video, on the other hand, is not envisioned in the “carefully-crafted provisions” of the rules of criminal procedure. Rather, its use would need to be authorized by the courts’ general authority to exercise control “over the mode and order of examining witnesses and presenting evidence” under Federal Rule of Evidence 611(a).⁸²82. Fed. R. Evid. 611(a) (“The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence . . . .”); cf. United States v. Yates, 438 F.3d 1307, 1314 (11th Cir. 2006) (rejecting the government’s argument that “admission of video testimony is within the inherent powers of trial courts”). Further, the absence of two-way video from the rules of criminal procedure is not an accident. In 2002, the advisory committee on the rules of procedure suggested an addition for video testimony to Rule 26, and this was explicitly rejected by the Supreme Court.⁸³83. Order of the Supreme Court, 207 F.R.D. 89, 93–96 (2002) (Scalia, J.). Justice Scalia explained that this rejection was because the proposed change was “contrary to the rule enunciated in Craig.”⁸⁴84. Id. at 93.

This differentiation, majority courts conclude, indicates that two-way video cannot be deemed equivalent to Rule 15 depositions.⁸⁵85. See Yates, 438 F.3d at 1314–15. Instead, the Supreme Court’s explanation suggests that, in individual cases, the correct standard is simply the Craig standard.⁸⁶86. See id. Thus, for the majority of courts, the standard for the use of two-way video testimony is the same as the standard for one-way video testimony: The use of modified testimony must be “necessary to further an important public policy” and the reliability of the means of modified testimony must be otherwise assured.⁸⁷87. See supra note 70 (collecting cases by majority courts that follow the Craig standard for two-way video testimony); Maryland v. Craig, 497 U.S. 836, 850 (1990).

B. The Michigan View

The Michigan view is even more protective of confrontation rights than the majority approach. It involves tracing the history of the Confrontation Clause back still further so as to reject even the Craig standard. When Craig was decided, the governing case on the meaning of the Confrontation Clause was Ohio v. Roberts.⁸⁸88. 448 U.S. 56 (1980). Roberts held that a statement from an unavailable witness could be admitted without traditional confrontation if it bears “particularized guarantees of trustworthiness.”⁸⁹89. Id. at 66. Under the Roberts standard, therefore, the right to confrontation was a substantive right to the reliability of witness testimony. Where that reliability could otherwise be guaranteed, confrontation was not necessary.⁹⁰90. Id. at 73. The Craig standard was based on an analysis of the reliability of one-way video.⁹¹91. Craig, 497 U.S. at 851–52. Because it was sufficiently reliable, the defendant’s interest in avoiding it was low and could be outweighed by public policy considerations.⁹²92. Id. at 851–853 (“[A] State’s interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh . . . a defendant’s right to face his or her accusers in court”).

But, as the Michigan Supreme Court notes, there was another view of Confrontation already competing with the Roberts view at the time Craig was decided.⁹³93. See People v. Jemison, 505 Mich. 352, 361 (2020). In his dissenting opinion in Craig, Justice Scalia argued that the Confrontation Clause is not a substantive guarantee of reliability.⁹⁴94. Id. at 862 (Scalia, J., dissenting). It is a guarantee of specific procedures which assure reliability.⁹⁵95. Id. The fact that an alternative to those procedures is also reliable does not mean that it satisfies the constitutional guarantee of the traditional procedures.⁹⁶96. Id. at 863.

Since Craig, Scalia’s view has won over. In Crawford v. Washington, Justice Scalia wrote for the majority and put forward precisely the view described above.⁹⁷97. 541 U.S. 36 (2004). The Confrontation Clause is no longer about substantive reliability.⁹⁸98. Id. at 61. It is about adherence to the procedures demanded by the Framers.⁹⁹99. Id. (noting that the Confrontation Clause “is a procedural rather than a substantive guarantee”). This, the Michigan Supreme Court argues, means that Crawford cuts the legs out from under Craig.¹⁰⁰100. See People v. Jemison, 505 Mich. 352, 356 (2020) (“Crawford did not specifically overrule Craig, but it took out its legs.”). In overruling Roberts, they contend, the Court necessarily modified the proper reading of Roberts’s progeny.¹⁰¹101. Id. (noting that Crawford “overruled Roberts and shifted from a reliability focus to a bright-line rule” for in-person testimony). One can no longer balance the reliability of an alternative means of testimony against public policy, because substantive reliability is not the relevant standard.¹⁰²102. Id. at 361–62 (“[In Crawford], the Court shifted gears; balancing no longer had a role.”).

The Michigan Supreme Court acknowledged that it would be improper to hold that Crawford overruled Craig entirely, because the Supreme Court did not specifically state that it was doing so, and the Supreme Court does not overrule itself silently.¹⁰³103. Id. at 363 (citing Rodriguez de Quijas v. Shearson, 490 U.S. 477, 484 (1989) (noting that the Supreme Court does not silently overrule itself)). The Michigan Supreme Court, therefore, concluded that Craig should be confined to the specifics of its holding: Video testimony may be used to protect child victims of sexual assault when there is an individualized finding of necessity.¹⁰⁴104. Jemison, 505 Mich. at 365. Otherwise, the requirement of face-to-face, in court, testimony is sacrosanct and “may be dispensed with only when the witness is unavailable and the defendant had a prior chance to cross-examine the witness.”¹⁰⁵105. Id.

C. The Second Circuit Responds

In appealing the district court’s decision, the defendants in Patterson argued that the Second Circuit should adopt the Michigan view and reject Gigante.¹⁰⁶106. United States v. Patterson, No. 21-1678-cr, 2022 U.S. App. LEXIS 35264, at *10–11 (2d Cir. Dec. 21, 2022). The Second Circuit declined to do so.¹⁰⁷107. Id. at *11. In addressing Michigan’s approach, the Second Circuit argued that Crawford didn’t undermine Craig or Gigante; it simply changed how they must be understood.¹⁰⁸108. Id. at *11–12. Craig and Gigante, the Second Circuit reasoned, stand for the proposition that the confrontation right can be partially abridged in the face of sufficient necessity.¹⁰⁹109. Id. at *11. As of the time of Craig and Gigante, this meant that the reliability of testimony could be slightly reduced by moving from in-person to one- or two-way video testimony, when the circumstances called for it. The Second Circuit argued that Crawford changed the understanding of what the right was that could be abridged, but it did not disturb the Craig–Gigante framework.¹¹⁰110. Id. at *11–12. Now, the procedures demanded by the Sixth Amendment can be slightly modified or abridged by moving from in-person to one- or two-way video testimony, when the circumstances call for it. Thus, there is no need to adopt Michigan’s standard.¹¹¹111. Id. at *11 (declining to adopt the argument that Crawford overruled Gigante).

Once the court in Patterson concluded that Gigante had not been overruled by Crawford, it was bound by that controlling Second Circuit precedent.¹¹²112. Id. As a result, the court has not squarely addressed the majority view.

III. Implications of the Second Circuit’s Divergent Standard

For a long time after Gigante was decided, its relaxed standard was used infrequently. Most commonly, it was used for situations in which a witness was a victim of child abuse or in which the witness’s physical presence could not be obtained because of extradition issues.¹¹³113. See, e.g., Jelinek v. Costello, 247 F. Supp. 2d 212, 277 (E.D.N.Y. 2003) (denying habeas relief for an alleged Confrontation Clause violation on the Gigante standard where the court permitted remote testimony from a victim of child abuse); United States v. Mostafa, 14 F. Supp. 3d 515, 524 (S.D.N.Y. 2014) (allowing video testimony from a witness detained in the United Kingdom who could not come to the United States without being detained in Massachusetts). In fact, in most Second Circuit cases predating the pandemic, there was an argument to be made that, despite the application of the looser Gigante standard, the Craig standard was also satisfied. Even in Gigante, the witness who testified remotely was ill enough that the court believed he would have suffered medical harm if he was forced to travel.¹¹⁴114. United States v. Gigante, 166 F.3d 75, 79 (2d Cir. 1999). While the court did not inquire into the specifics enough to formally make such a determination, it seems likely that the harm done by requiring a severely ill witness to travel might rank alongside the trauma experienced by a child witness forced to testify against their abuser. In fact, other circuits have held just that.¹¹⁵115. See, e.g., Horn v. Quarterman, 508 F.3d 306, 317 (5th Cir. 2007). Thus, the Gigante standard represented a formal difference between the Second Circuit and other courts, but, practically speaking, ended up admitting similar evidence.

But Patterson represents a group of COVID-era cases in which video testimony was used far more liberally in the Second Circuit.¹¹⁶116. Patterson, 2022 U.S. App. LEXIS 35264, at *12–13; see also United States v. Avenatti, No. 19-CR-374, 2022 U.S. Dist. LEXIS 5395, at *2–5 (S.D.N.Y. Jan. 11, 2022) (allowing a witness who was at “increased risk of serious illness or death if [s]he were to contract COVID-19” to testify remotely to avoid traveling during the Omicron variant surge); United States v. Calonge, No. 1:20-cr-523-GHW, 2021 U.S. Dist. LEXIS 142032, at *4 (S.D.N.Y. July 29, 2021) (allowing a witness with an undisclosed medical condition to testify remotely to avoid traveling during the pandemic); United States v. Donziger, No. 19-CR-561, 2020 U.S. Dist. LEXIS 148029, at *8–10 (S.D.N.Y. Aug. 17, 2020) (allowing an unvaccinated witness in his seventies to testify remotely during the height of the pandemic). The witnesses in these cases were not actually incapacitated. In some cases, they had already testified in person in recent court proceedings.¹¹⁷117. See, e.g., Avenatti, 2022 U.S. Dist. LEXIS 5395, at *4–5 (noting that the witness’s in-person testimony pre-pandemic did not affect the court’s analysis). In at least one case, the court admitted that it was possible to procure the witness’ in-person testimony.¹¹⁸118. See, e.g., id. at *4 (“To be sure, the Government has not proved that it would be impossible for [the witness] to appear in New York to testify.”). It was simply risky.

In this new collection of cases, an argument that the Craig standard would have been satisfied, if applied, becomes much more difficult. There was no guarantee of harm in these cases or even the high probability of harm present in Gigante. There was simply the possibility. There was no inquiry into whether alternative steps could be taken which would not necessitate two-way video. In none of these cases did the court consider an adjournment until such a time as the risk had passed or the witness could be vaccinated.¹¹⁹119. See, e.g., United States v. Donziger, No. 19-CR-561, 2020 U.S. Dist. LEXIS 197631, at *5–6 (S.D.N.Y. Oct. 23, 2020) (denying a request for an adjournment to prioritize in-person testimony). In Patterson, there wasn’t even an inquiry into whether Visa could provide a representative other than Elliott who could testify to the same facts. Elliott’s personal knowledge wasn’t case specific, so it seems highly plausible that there would have been someone else in a large corporation like Visa who could testify to the same policies and who would be able to get to a courthouse in New York.¹²⁰120. United States v. Akhavan, 523 F. Supp. 3d 443, 451 (S.D.N.Y. 2021) (noting Elliott’s testimony as Visa policy-focused and not specific to the issues of the case). But no such inquiry was made. Patterson represents the true meaning of Gigante: The bar for using video testimony in the Second Circuit has been lowered.

IV. Where Does the Second Circuit Go Now?

All of this invites the question: How far will the Second Circuit diverge from the rest of the country? The most natural niche for video testimony to expand into is the one currently held by Rule 15 depositions. Historically, Rule 15 depositions have been the solution when a witness cannot be present in court during trial.¹²¹121. Fed. R. Crim. P. 15. Most circuits hold that two-way video should not be permitted where a Rule 15 deposition could be used instead.¹²²122. See, e.g., United States v. Yates, 438 F.3d 1307, 1316 (11th Cir. 2006) (noting that the availability of a Rule 15 deposition showed lack of necessity under Craig). But that precedent relies on the Craig necessity standard—two-way video cannot be necessary where a Rule 15 deposition would suffice.¹²³123. Id. So, there is no reason to believe that the Second Circuit would follow those other circuits’ holdings. Indeed, if the Second Circuit takes seriously the claim that two-way video should be admissible on exactly the same standard as Rule 15 depositions, there is no reason that a district court in that circuit should prioritize one over the other on confrontation grounds.

Decisions like Patterson pave the way for a replacement of many Rule 15 depositions with video testimony. Indeed, arguably, Patterson was already such a replacement. In circuits which apply the Craig standard, Rule 15 depositions were used to procure the testimony of witnesses who were too medically fragile to travel to trial during the pandemic.¹²⁴124. See, e.g., United States v. Jesenik, No. 3:20-cr-228-SI, 2021 U.S. Dist. LEXIS 228993, at *4–7 (D. Or. Nov. 30, 2021). For example, a district court in the Ninth Circuit permitted the Rule 15 deposition of a witness who could not travel to court because he was 87 years-old and in a high-risk category for COVID-19.¹²⁵125. Id. In theory, the Second Circuit could have demanded the same thing in Patterson. But they did not; they used video as an alternative.

Using video-testimony instead of Rule 15 depositions certainly seems like an attractive option from a logistical and financial perspective. Rule 15 depositions generally require getting the witness together in the same room with attorneys from both sides and with the defendant.¹²⁶126. Fed. R. Crim. P. 15(c) (providing guidance for in-person depositions with and without the defendant’s presence). That can become complicated for any number of reasons. In particular, Rule 15 depositions are commonly used for obtaining the testimony of witnesses located outside the United States (and, therefore, outside the court’s subpoena power) who refuse to travel to testify or who have difficulty obtaining the necessary documents to do so.¹²⁷127. See, e.g., United States v. Sidona, 636 F.2d 792, 803–04 (2d Cir. 1980) (allowing Rule 15 depositions of witnesses who refused to travel to the United States and witnesses who were willing but had not timely procured the necessary travel documents). In order to take Rule 15 depositions for these witnesses, both parties must travel internationally.¹²⁸128. Fed. R. Crim. P. 15(c). Note an exception for the defendant’s presence in international depositions if certain criteria are satisfied under Fed. R. Crim. P. 15(c)(3). When the defendant is represented by court-appointed counsel or the government is the party seeking to procure the testimony, this often means that the United States government must pay for and make arrangements for the defendant and their counsel to travel internationally.¹²⁹129. Fed. R. Crim. P. 15(d) (noting the court may—and must, when the defendant is unable to pay—order the government to cover travel and deposition transcript expenses when the government requests the deposition). Video testimony is clearly a cheaper and easier option for the government. Because of these financial and logistical barriers, one might expect that, barring a legal impediment to such a move, video testimony would become the default in cases where a Rule 15 deposition would once have been used.

Such a move would represent a significant departure from the traditional uses of modified confrontation.¹³⁰130. See United States v. Gear, No. 17-00742, 2019 U.S. Dist. LEXIS 4011, at *1–2 (D. Haw. Jan. 9, 2019) (noting that video testimony is not a substitute for a Rule 15 deposition simply because a foreign witness is located abroad and refuses to travel to testify at trial under the Craig standard). And it is not clear that it would be a change for the better. Video testimony may be cheaper and easier to set up on short notice than other accommodations, but it also poses demonstrable risks to the reliability of trial testimony, as discussed above. Jurors just can’t evaluate it.¹³¹131. See supra notes 6–11 and accompanying text. By contrast, jurors are often better at evaluating purely written testimony, like Rule 15 depositions, than they are even at evaluating standard testimony.¹³²132. See Robert Fisher, The Demeanor Fallacy, 2014 N.Z. L. Rev. 575, 580 (2014) (citing an American commentator summarizing experimental evidence and concluding that “subjects who receive transcript consistently perform as well as or better than subjects who receive recordings of the respondent’s voice” (quoting Olin Guy Wellborn III, Demeanor, 76 Cornell L. Rev. 1075, 1088 (1991))). So, Patterson paves the way for a situation in which a tried and true, reliable form of modified testimony can be replaced with a form of modified testimony known to produce credibility problems. It will be up to the Second Circuit to ensure that we do not reach that point. But based on their current precedent, it is not at all clear that they will.

Conclusion

The Supreme Court admits that the standard for modified testimony has been an open question ever since they decided Crawford in 2006.¹³³133. See Wrotten v. New York, 560 U.S. 959, 960 (2010) (Sotomayor, J., denying certiorari) (“Because the use of video testimony in this case arose in a strikingly different context than in Craig, it is not clear that the latter is controlling.”). The pandemic and its promotion of video technology have made a resolution all the more pressing. Absent constitutional or statutory barriers, it seems likely that video testimony will seep into the court system as a means of solving logistical problems just as it has in every other aspect of our lives. The logical outcome of this seepage is that (again, absent constitutional or statutory barriers) the courts will continue to move in a more permissive direction with video testimony if left unchecked. The Second Circuit’s standard lowers constitutional barriers, and gives trial courts every opportunity to be permissive, particularly now that the Supreme Court has declined to step in and force them to change course.¹³⁴134. See Akhavan v. United States, 143 S. Ct. 2639 (2023) (denying certiorari). The Second Circuit may well become the wild west of video trials, allowing video testimony in many places where other circuits simply would not. It remains to be seen how far their increasingly lax standard will go.

2023

August 8, 2023

Verdun v. City of San Diego

Jonah Charles Ullendorff

The Constitutionality of Tire Chalking

Jonah Charles Ullendorff³3. * Copyright © 2023 by Jonah Charles Ullendorff. J.D., 2023, New York University School of Law; B.A., 2020, The University of Chicago. Thank you to the Online Department of the New York University Law Review for their amazing work and help on this article. Particularly (in alphabetical order), Colin Heath, Jess Moore, Cleo Nevakivi-Callanan, Maeve O’Brien, and Ryan Shaffer.*

Recent Case: Verdun v. City of San Diego, 51 F.4th 1033 (9th Cir. 2022).

The Ninth Circuit recently held that parking enforcement officers’ use of tire chalk, while possibly a warrantless search, is still constitutional under the special needs doctrine. This ruling explicitly rejected a previous Sixth Circuit decision which said that the practice of tire chalking was a warrantless search not justified under the doctrine. The reasoning behind these cases sheds light on some of the most critical and contentious disputes around Fourth Amendment case law that are happening right now across our federal courts: the original meaning and purpose of the Fourth Amendment, debates over how to understand what constitutes a search, and questions of how far the special needs doctrine really goes. Few things seem more mundane than tire chalking; therefore, if tire chalking is a search, that has important implications for the future of the Fourth Amendment.

Introduction

The Chicago Tribune’s 2015 travel section gushes with praise for the quaint California town of Coronado. The coastal city of only 20,000 people is so idyllic that it needs no law enforcement presence—well, save for one small thing: “[In Coronado t]here is no graffiti, [the] streets are clean, and the only police activity we saw in a week was tire-chalking.”⁴4. William Hageman, Coronado a Laid-Back World Away from San Diego, Chi. Trib. (Apr. 27, 2015, 10:48 AM), https://www.chicagotribune.com/travel/sc-trav-0428-coronado-california-20150422-story.html [https://perma.cc/KC9Y-7R7L].

With cars comes parking, and with parking comes parking enforcement. No matter where one goes in America, someone or something will be there, ensuring that their vehicle does not overstay its welcome. One of the oldest tools of these parking enforcers is tire chalking, a practice employed since at least the 1920s.⁵5. Campbell Robertson, Lose the Chalk, Officer: Court Finds Marking Tires of Parked Cars Unconstitutional, N.Y. Times (Apr. 25, 2019), https://www.nytimes.com/2019/04/25/us/tire-chalk-parking-unconstitutional.html [https://perma.cc/R7CG-3LP5]. Tire chalking involves an officer placing chalk on the tire of a parked car and returning after a set amount of time. If the chalk remains where the officer left it, the car has evidently not moved, and the driver is issued a fine for violating the city’s parking ordinances.⁶6. Id. Tire chalking means many things to many people. It can be seen as trivial, boring, inevitable, or just plain annoying. And, maybe, it is also a long-running and egregious violation of the core constitutional rights that we all hold dear as American citizens.

The Ninth Circuit in October 2022 thought otherwise, holding in Verdun v. City of San Diego that while tire chalking might be a warrantless search under the Fourth Amendment, it nonetheless fell under the special needs doctrine exception and was thus constitutional.⁷7. 51 F.4th 1033, 1037 (9th Cir. 2022) (expressing deep skepticism of “plaintiffs’ effort to have us suddenly declare as violating the United States Constitution a rather innocuous parking management practice” but, nonetheless, putting that “skepticism completely to the side” and assuming that tire chalking would be a search); id. at 1046. In doing so, the Ninth Circuit departed from the Sixth Circuit,⁸8. Taylor v. City of Saginaw, 922 F.3d 328, 336 (6th Cir. 2019) (Taylor I) (holding that chalking is a warrantless search and that the exceptions raised on appeal do not apply); Taylor v. City of Saginaw, 11 F.4th 483, 489 (6th Cir. 2021) (Taylor II) (holding that the administrative need exception does not apply). creating an inter-circuit split ripe for Supreme Court review.⁹9. Note that technically both circuits only formally disagree on the special needs analysis, but the majority opinion in Verdun evinces a clear skepticism that tire chalking is a search under Supreme Court caselaw that the Supreme Court may feel necessary to clear up. See Verdun, 51 F.4th at 1037. In fact, a petition for certiori has been docketed and, after conference, a brief in opposition was submitted. Id. at 1033, appeal docketed, No. 22-943 (Mar. 28, 2023). The outcome of Verdun raises important questions about the Fourth Amendment and the contours of the Supreme Court’s precedent on unconstitutional searches and the special needs doctrine. On a more conceptual level, the case also presents unique insights on how different judges understand the constitutional interpretive method of originalism, as well as the ultimate purpose behind the Fourth Amendment.

The comment will proceed in three main parts before concluding. Part I provides the reader with the necessary background on what constitutes a search or seizure under the Fourth Amendment, as well as the special needs doctrine exception to the default requirements of the Fourth Amendment. Part II then analyzes the majority and dissent in the Verdun decision. Part III further explores the key topics laid bare by the disagreements in Verdun: (1) if tire chalking should be considered a search under current Supreme Court precedent; (2) the breadth of the special needs doctrine; and (3) intra-originalist disagreements on how far an originalist conception of the Fourth Amendment should really go. Finally, the comment concludes and poses a brief question on the Fourth Amendment and innate government skepticism that underlies its text.

I. Warrantless Searches and the Special Needs Doctrine

Under English and early colonial law, warrantless general searches, known as “writs of assistance,” were the norm.¹⁰10. See Leonard W. Levy, Origins of the Fourth Amendment, 114 Pol. Sci. Q. 79, 81 (1999) (“English law was honeycombed with parliamentary enactments that relied on warrantless general searches and on general warrants for their enforcement . . . .”). Officers would report that they suspected a crime had occurred—no further specificity was needed—and a magistrate would issue a general warrant that allowed officers to search for and seize whatever they wanted within their discretion.¹¹11. See id. at 82 (discussing these broad general warrants, which “allowed officers to search wherever they wanted and to seize whatever they wanted, with few exceptions”). This was, unsurprisingly, a great point of contention among the colonists,¹²12. Id. at 79. who reviled at the thought of giving such wide-ranging, despotic power to any enforcing officer who asked for it.¹³13. See Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547, 578 (1999) (“[D]elegation of discretionary authority to ordinary, ‘petty,’ or ‘subordinate’ officers was anathema to framing-era lawyers.”); id. at 580–82 (attributing this view to the colonists). Upon attending a rousing speech by the patriot James Otis in 1761 denouncing the British general writs of assistance, a young John Adams wrote: “[t]hen and there the child [of] Independence was born.”¹⁴14. Riley v. California, 573 U.S. 373, 403 (2014) (quoting 10 Works of John Adams 248 (Charles Francis Adams ed., 1856)).

The intuitive instincts of the Framers against general, suspicionless searches led to the adoption of the Fourth Amendment.¹⁵15. See Marshall v. Barlow’s, Inc., 436 U.S. 307, 311–12 (1978) (surveying this history). The key purpose of the Amendment was to take discretion away from the investigating officer(s) and require a warrant issued upon probable cause to “search” or “seize” something from an individual.¹⁶16. See Davies, supra note 10, at 724 (noting that the Framers aimed the Fourth Amendment at getting rid of discretionary authority for officers). From this, a general principle arose: warrantless searches and seizures are per se unconstitutional, subject to exceptions.¹⁷17. E.g., Coolidge v. New Hampshire, 403 U.S. 443, 454–55 (1971) (citing Katz v. United States, 389 U.S. 347, 357 (1967)). These exceptions have, for many, completely vitiated the rule—like Swiss cheese with so many holes it is more air than actual cheese. See, e.g., Florida v. White, 526 U.S. 559, 569 (1999) (Stevens, J., dissenting) (arguing that the Supreme Court’s doctrine on exceptions to the warrant requirement has “all but swallowed the general rule”). Nonetheless, these exceptions are still formally “exceptions” to the general rule. See id. (“The Court does not expressly disavow the warrant presumption . . . .”). As a result, a key and oft-litigated distinction in Fourth Amendment case law is what is and what is not a search.

A. What Is a Search

The biggest sea change in understanding what a “search” was began with the famous 1967 case Katz v. United States.¹⁸18. 389 U.S. 347 (1967). Before Katz, what qualified as a search or seizure under the Fourth Amendment was based in the concept of property rights; a violation of the Amendment was interpreted to require some sort of physical force or trespass.¹⁹19. See, e.g., Olmstead v. United States, 277 U.S. 438, 463, 465–66 (1928), overruled by Katz, 389 U.S. 347 and Berger v. New York, 388 U.S. 41 (1967). Take, for instance, the case that Katz overruled: Olmstead v. United States.²⁰20. Olmstead, 277 U.S. 438. In this 1920s, prohibition-era decision, the Supreme Court, in an opinion written by Chief Justice William Howard Taft, canvassed the history of the Fourth Amendment to say that a person’s Fourth Amendment rights have not been violated “unless there has been an official search and seizure of his person . . . papers . . . tangible material effects, or an actual physical invasion of his house or curtilage for the purpose of making a seizure.”²¹21. Id. at 466 (internal quotation marks omitted). Thus, the wiretapping²²22. Id. at 456–57. of Olmstead and his co-conspirators was not a search under the Fourth Amendment.²³23. Id. at 466. But in Katz, the Supreme Court embraced a broader view of the Fourth Amendment and extended its privacy protections to an oral recording of statements, even though the collection of such recordings involved no physical force or trespass to obtain.²⁴24. Katz, 389 U.S. at 352–53. While Justice Potter Stewart wrote the majority in Katz, Justice John Marshall Harlan’s concurrence stole the show. Justice Harlan outlined a two-tiered test for what the Fourth Amendment protected, requiring that a person have both a subjective expectation of privacy and for that expectation of privacy to be one which society objectively views as “reasonable.”²⁵25. Id. at 361 (Harlan, J., concurring). Harlan’s concurrence created a radical change in the understanding of modern Fourth Amendment law that accounted for new police technologies that often involved touchless surveillance.²⁶26. See Stephen J. Schulhofer, More Essential Than Ever 119–20 (2012) (noting the Court’s watershed application of the Fourth Amendment “regardless of the place where the surveillance occurs and regardless of the means used”). Naturally, this Harlan test was applied consistently among all federal courts interpreting federal constitutional law—from district courts to the Supreme Court.²⁷27. See, e.g., Kyllo v. United States, 533 U.S. 27, 32–33 (2001); United States v. Ramapuram, 632 F.2d 1149, 1153–54 (4th Cir. 1980); United States v. Nettles, 175 F. Supp. 2d 1089, 1092 (N.D. Ill. 2001).

But then something changed—or never changed, depending on your perspective. In a series of cases led by Justice Antonin Scalia, the old property right conception of the Fourth Amendment reared its head again. In the 2012 case United States v. Jones, the Court was confronted with the warrantless GPS tracking of a car.²⁸28. 565 U.S. 400, 402–03 (2012). The government argued, per the Katz formulation, that no one had a reasonable expectation of privacy to the movement of their car on public roads visible to all.²⁹29. Id. at 406. Justice Scalia’s majority opinion said that the lack of a reasonable expectation of privacy was of no matter because the government, by physically placing a GPS tracker on a car to obtain information, committed common law trespass and, thus, engaged in a search or seizure.³⁰30. Id. at 406–10. Furthermore, Justice Scalia announced that Katz was not a “new” test for the Fourth Amendment; rather, it was just additional protection that supplemented the old property law protections of the Fourth Amendment.³¹31. Id. at 409. Therefore, after Jones, a search is one that violates a reasonable expectation of privacy or is one that involves the government physically intruding on a constitutionally-protected area to obtain information.³²32. See id. at 407–08 (holding that “Katz did not narrow the Fourth Amendment’s scope” based on subsequent precedent preserving the property rights element). Justice Samuel Alito concurred in Jones, but he found the GPS tracking a violation of the Fourth Amendment because it invaded a reasonable expectation of privacy.³³33. Id. at 430–31 (Alito, J., concurring). For Justice Alito, Katz did away with the old, archaic, property-based standard.³⁴34. Id. at 422.

Then, a year later, in Florida v. Jardines, Justice Scalia further solidified this disjunctive, either-or test for what constitutes a Fourth Amendment search. In Jardines, the physical trespassing of an officer and their drug-sniffing dog on a homeowner’s property was enough to constitute a search because it involved the government physically invading a protected property interest to gather information.³⁵35. 569 U.S. 1, 5–6 (2013). Justice Alito, again, looked to whether the homeowner had a reasonable expectation of privacy and not the property test. Justice Alito argued that law enforcement has routinely used dogs’ sense of smell for centuries and society has not recognized a reasonable expectation of privacy in odors emanating from a property.³⁶36. Id. at 16–17 (Alito, J., dissenting).

Ultimately, Justice Scalia’s property conception of the Fourth Amendment articulated in Jones and Jardines is critical to our understanding of the constitutionality of tire chalking. Under the Katz test, cars are understood to involve minimal privacy interests.³⁷37. See, e.g., Pennsylvania v. Labron, 518 U.S. 938, 940 (1996) (surveying case law that indicates lesser Fourth Amendment protections for cars due, in part, to reduced expectations of privacy for cars); Cardwell v. Lewis, 417 U.S. 583, 590 (1974) (“One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one’s residence or as the repository of personal effects.”). Combine this with the minimal intrusion of the process of tire chalking, and it is an uphill battle to convince a court solely under the Katz formulation that tire chalking is a search. But, under Jones, tire chalking is a physical trespass upon one’s property by a government official to obtain information, i.e., a search.

B. Special Needs Doctrine

Even under the Jones and Jardines test, there is a significant hurdle a litigator needs to clear in arguing that the practice of tire chalking is unconstitutional: the special needs doctrine. The first case implicating the special needs doctrine was the relatively recent 1985 case of New Jersey v. T.L.O.³⁸38. 469 U.S. 325 (1985); see Ronald Jay Allen, Joseph L. Hoffmann, Debra A. Livingston, Andrew D. Leipold & Tracey L. Meares, Criminal Procedure: Investigation and Right to Counsel 677 (4th ed. 2020) (noting T.L.O. as the first of a long line of cases under the special needs doctrine). There, the Supreme Court allowed widescale searches of students’ backpacks within a school without probable cause or a warrant.³⁹39. T.L.O., 469 U.S. at 341–43. After several subsequent cases, the special needs doctrine was solidified. It held that if the government engages in systematic search or surveillance not primarily related to law enforcement purposes, they do not need to worry about probable cause or warrants.⁴⁰40. See Barry Friedman, Lawless Surveillance, 97 N.Y.U. L. Rev. 1143, 1181 (2022) (outlining this framework for the special needs doctrine). Therefore, even though something is a “search” and lacks a valid warrant issued under probable cause, the government can still constitutionally engage in such a search under the special needs doctrine.⁴¹41. See, e.g., Ferguson v. City of Charleston, 532 U.S. 67, 74 n.7 (2001) (“[I]n limited circumstances, a search unsupported by either warrant or probable cause can be constitutional when ‘special needs’other than the normal need for law enforcement provide sufficient justification.” (citing O’Connor v. Ortega, 480 U.S. 709, 720 (1987)).

One may be excused for wondering if, through the special needs doctrine, we have gone full circle back to the detested generalized writs of assistance that birthed the American “child of Independence” all those years ago.⁴²42. Cf. supra notes 7–11 and accompanying text. In fact, many have argued as such.⁴³43. See, e.g., Scott E. Sundby, Protecting the Citizen “Whilst He Is Quiet”: Suspicionless Searches, “Special Needs” and General Warrants, 74 Miss. L.J. 501, 511 (2004) (arguing that the special needs doctrine has systematically undermined the warrant requirement of the Fourth Amendment); Phyllis T. Bookspan, Reworking the Warrant Requirement: Resuscitating the Fourth Amendment, 44 Vand. L. Rev 473, 509–10 (1991) (noting that in special needs analysis the courts depart from the traditional procedural analysis and reasonableness requirements of the Fourth Amendment). However, a key distinction in special needs cases is that they involve an exercise of government authority that is separate and distinct from mere law enforcement, often justified for reasons like health or efficient bureaucracy.⁴⁴44. See William E. Ringel, Searches and Seizures, Arrests and Confession 2d § 10:13, Westlaw (database updated Mar. 2023) (examining how courts distinguish health and safety concerns from law enforcement); see, e.g., Bd. of Educ. v. Earls, 536 U.S. 822, 830–31 (2002) (using government interest in health and safety to justify an application of the special needs doctrine); O’Connor v. Ortega, 480 U.S. 709, 720 (1987) (using government interest in “efficient operation of the workplace” to justify an application of the special needs doctrine). This crucial difference can be illuminated in the special needs cases that deal with government roadblocks and checkpoints. In Michigan Department of State Police v. Sitz, the Court applied the special needs doctrine to allow drunk driving checkpoints, reasoning that the public safety interest in preventing drunk driving was high and the interest against being briefly stopped was minimal.⁴⁵45. 496 U.S. 444, 451–52 (1990). However, ten years later, in City of Indianapolis v. Edmond, the Court held that warrantless and suspicionless checkpoints designed to locate narcotics were indistinguishable from general crime fighting purposes and, therefore, did not qualify for the special needs exception.⁴⁶46. 531 U.S. 32, 41–42 (2000). However, checkpoints can be implemented, and police can inadvertently stumble upon criminal evidence without a warrant while working them, so long as gathering it is not their “primary” purpose.⁴⁷47. Illinois v. Lidster, 540 U.S. 419, 423 (2004). Further, along with requiring a primary purpose that does not involve general crime fighting, courts will typically conduct some sort of reasonableness balancing test, which weighs the government’s interest in carrying out the program against the privacy interests intruded upon.⁴⁸48. See, e.g., id. at 426–27 (stating that you first look to non-criminal purpose per Edmond, 531 U.S. at 41–42, and then engage in a reasonableness test); Lynch v. City of New York, 589 F.3d 94, 100 (2d Cir. 2009) (noting this balancing test). Therefore, the special needs doctrine is arguably not as expansive as the old generalized writs were.

II. The Decision in Verdun

Before engaging with Verdun, it is important to consider the prior Sixth Circuit jurisprudence on the issues resulting from two different decisions in Taylor v. City of Saginaw: Taylor I in 2019 and Taylor II in 2021.⁴⁹49. Taylor I, 922 F.3d 328 (6th Cir. 2019); Taylor II, 11 F.4th 483 (6th Cir. 2021).

In Taylor I, the Sixth Circuit addressed the question of whether tire chalking was a search under the Fourth Amendment. The court noted that after Jones, there are two ways to see if something is a search: the Katz reasonable expectation of privacy test, or the Jones property-based approach.⁵⁰50. Taylor I, 922 F.3d at 332. Following Jones, the court noted that using chalk to mark someone’s car was a trespass under the common law.⁵¹51. Id. at 332–33. Further, it was a trespass to obtain information on whether the vehicle would later move, satisfying the second part of the Jones test, which requires a government intrusion with the goal of obtaining information.⁵²52. Id. at 333. Taylor I also rejected two exceptions to the warrant requirement that were argued by the city: the automobile exception and the community caretaking exception. For the automobile exception, the court said that the reduced expectation of privacy for cars did not mean zero expectation of privacy. Id. at 334. The court also rejected the community caretaking exception because tire chalking was not being done to mitigate a public hazard but to raise revenue. Id. at 335.

Two years later, in Taylor II, Saginaw was back in front of a different panel of Sixth Circuit judges. This time Saginaw admitted that tire chalking was a search, but one that was justified under the special needs doctrine.⁵³53. Taylor II, 11 F.4th at 486, 488. The city argued that tire chalking was essentially an administrative scheme—like inspecting a home for compliance with a housing code—that allowed warrantless searches under the special needs doctrine.⁵⁴54. Id. at 488. The panel of three Sixth Circuit judges disagreed and took a narrow view of what counted as an exception to the warrant requirement under the special needs doctrine.⁵⁵55. Id. at 487–89. For one, tire chalking was not necessary for parking enforcement—there were other ways to do it.⁵⁶56. See id. at 489 (“[T]ire chalking is not necessary to meet the ordinary needs of law enforcement, let alone the extraordinary.”) (citing City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000)). Second, the court found unconvincing the city’s arguments that tire chalking was being done for a non-law enforcement purpose like “the public welfare.”⁵⁷57. Taylor II, 11 F.4th at 488. For the court, this was a general crime control scheme.⁵⁸58. See infra note 115 and accompanying text.

In May 2019, a month after the Sixth Circuit held suspicionless tire chalking a search,⁵⁹59. Taylor I, 922 F.3d 328, 332 (6th Cir. 2019). a class action lawsuit was filed against San Diego for their use of tire chalking in parking enforcement.⁶⁰60. See Ashley Mackin-Solomon, San Diego Police Using New System for Detecting Parking Violations After City Is Sued over Chalking Tires, La Jolla Light (Nov. 20, 2020), https://www.lajollalight.com/news/story/2020-11-20/san-diego-police-using-new-system-for-detecting-parking-violations-after-city-is-sued-over-chalking-tires [https://perma.cc/4UG7-BFSV] (noting the class action lawsuit, which was filed in May 2019). Prior to the lawsuit, San Diego had been doing tire chalking to enforce time limits for their parking code since the 1970s.⁶¹61. Verdun v. City of San Diego, 51 F.4th 1033, 1037 (9th Cir. 2022). In the contentious two-to-one Verdun decision, the Ninth Circuit parted ways with the Sixth Circuit and said the practice was constitutional.⁶²62. Id. at 1048. Judge Daniel Bress wrote the majority decision to which Judge Patrick Bumatay dissented.

A. The Majority Opinion

The first thing to note is that for Judge Bress, there is salient skepticism over whether tire chalking is a search. Judge Bress states that before Jones, no one even seriously considered that tire chalking constituted a search.⁶³63. Id. at 1037. Nonetheless, Judge Bress assumed tire chalking is a search for the purposes of his analysis.⁶⁴64. Id. This initial skepticism by Judge Bress over whether tire chalking is a search is important to consider as it likely influences his understanding, later, of what is a reasonable or unreasonable intrusion in the context of a government scheme under the special needs doctrine.⁶⁵65. See infra notes 72–73 and accompanying text.

Having assumed a search, Judge Bress moved on to the special needs doctrine, which involves a two-part analysis in the Ninth Circuit drawing on precedent regarding checkpoints.⁶⁶66. In a nutshell, checkpoints—or roadblocks—involve police setting up a barrier and briefly stopping and inspecting drivers as they come through. See Paul Bergman, When Can Police Set Up Roadblocks, NOLO, https://www.nolo.com/legal-encyclopedia/police-set-up-roadblocks.html [https://perma.cc/4C4Q-F5CH]. Of course, the police lack probable cause to question or briefly hold many of these drivers, but the Supreme Court has held that checkpoints are valid under the Fourth Amendment so long as they conform to certain procedures. Id.; see also Kathryn L. Howard, Stop in the Name of that Checkpoint: Sacrificing Our Fourth Amendment Right in Order to Prevent Criminal Activity, 68 Mo. L. Rev. 485, 491–93 (2003) (providing a brief history of checkpoints under the Fourth Amendment). First, the court must determine if the search is “per se invalid” because its “primary purpose” is “to advance the general interest in crime control.”⁶⁷67. Verdun, 51 F.4th at 1041 (quoting Demarest v. City of Vallejo, 44 F.4th 1209, 1220 (9th Cir. 2022)). Second, if the search is not per se invalid, the court must conduct a balancing test to determine if the search is reasonable.⁶⁸68. Id. at 1041–42. The idea behind this second reasonableness test, Judge Bress notes, is that the special needs doctrine merely exempts the “warrant” requirement of the Fourth Amendment, but the “reasonableness” requirement of that Amendment’s textual command stays. See id. at 1040 (“[W]hile administrative searches are an exception to the Fourth Amendment’s warrant requirement, they are not an exception to the Fourth Amendment’s standard of reasonableness.” (quoting United States v. Bulacan, 156 F.3d 963, 967 (9th Cir. 1998)). Note that Judge Bress’s analysis draws on the Ninth Circuit’s precedents for checkpoints, which both makes a somewhat awkward fit and also represents a broader understanding of the special needs doctrine as one that allows for another exception even if there is no specific case law on it.⁶⁹69. This would contrast with a doctrine such as Bivens, which requires identifying factually similar precedent to justify its application. See Joanna C. Schwartz, Alexander Reinert & James E. Pfander, Going Rogue: The Supreme Court’s Newfound Hostility to Policy-Based Bivens Claims, 96 Notre Dame L. Rev. 1835, 1836 (2021) (discussing said Bivens’ “sufficiently similar” framework). This latter point is especially problematic for Judge Bumatay in his dissent.⁷⁰70. See Verdun, 51 F.4th at 1056 (Bumatay, J., dissenting) (taking a highly limited and narrow view of special needs case law).

Using this test, Judge Bress first notes that the primary purpose of tire chalking is not for general crime control. Instead, its primary purpose is to “assist the City in its overall management of vehicular traffic . . . .”⁷¹71. Id. at 1042 (majority opinion). Tire chalking is about freeing up parking spots, which enhances public safety, promotes commerce, and makes room for emergency service vehicles.⁷²72. Id. at 1035–36. Yes, tire chalking can lead to a parking citation, but that is not its primary purpose.⁷³73. Id. at 1042. Next, tire chalking also satisfies the reasonableness prong.⁷⁴74. Id. at 1043. The “search” itself is small and insignificant⁷⁵75. Id. at 1044–45. (this understanding surely being informed by Judge Bress’s skepticism of whether it even is a search), especially since cars already have a reduced expectation of privacy.⁷⁶76. Id. at 1045. Finally, the process in which the city engages in tire chalking is sufficiently tailored to its stated goals and is thus straightforwardly reasonable.⁷⁷77. Id. at 1044.

Judge Bress then moves on to address his detractors. First, concerning the Sixth Circuit’s opinion, Judge Bress argues that the court erroneously viewed the special needs doctrine too narrowly insofar as they said that tire chalking needed to be necessary to enforce parking. For Judge Bress, something can qualify under the special needs exception even if it is not “necessary.”⁷⁸78. See id. at 1046 (arguing that it is not relevant for special needs cases to see if another alternative scheme that does not involve Fourth Amendment searches can be viable). Next, Judge Bress criticizes Judge Bumatay’s dissent as being too originalist and ignoring precedent in favor of a historical analysis of the Fourth Amendment.⁷⁹79. See id. (“Merely citing the general concerns that animated the Fourth Amendment and some basic legal history, as the dissent does, hardly proves the more specific proposition that tire chalking violates the Constitution.”). Judge Bress argues that rather than faithfully applying Supreme Court and Ninth Circuit precedent on the special needs doctrine, Judge Bumatay’s reasoning starts with the foundational principle that the special needs doctrine violates the original meaning of the Fourth Amendment and goes from there.⁸⁰80. See id. at 1047.

B. The Dissent

To begin, Judge Bumatay lays the groundwork of his dissent as one entirely guided by originalist thought. He starts with a citation to the 2005 Supreme Court case of District of Columbia v. Heller to argue that “[c]onstitutional rights are enshrined with the scope they were understood to have when the people adopted them.”⁸¹81. Id. at 1049 (Bumatay, J., dissenting) (quoting District of Columbia v. Heller, 554 U.S. 570, 634–35 (2008)). Judge Bumatay’s dissent is highly influenced by originalism: it surveys the historical meaning of the Fourth Amendment,⁸²82. See id. early state and federal constitutional debates,⁸³83. Id. at 1053, 1053–54. and eighteenth-century congressional practice,⁸⁴84. Id. at 1054–55. and quotes from Founding Fathers like Patrick Henry.⁸⁵85. Id. at 1054. Using this historical framework as evidence in tandem with Jones, Judge Bumatay stresses that the Fourth Amendment is directly tied to the common law trespass test.⁸⁶86. Id. at 1049. In light of Jones, Judge Bumatay would not just assume that tire chalking is a search; he would hold that it is unequivocally.⁸⁷87. Id. at 1051.

Of course, given that Judge Bress operated under the assumption in his majority that there was a search, the real meat of the dissent comes with Judge Bumatay’s argument against the application of the special needs doctrine as an appropriate exception to the warrant requirement for tire chalking. What is especially interesting about the discussion between Judges Bumatay and Bress on the special needs doctrine is that their ultimate conclusions can be read as a product of their reasoning methods. Judge Bress starts with Supreme Court and circuit precedent as his first principle, which he then supplements with originalism;⁸⁸88. Judge Bress in Verdun does not explicitly say he is doing this, but it can be inferred by his opinion against a larger context. In the immediate confines of Verdun, Judge Bress engages with originalism, but places less value on it in comparison with Supreme Court precedent. Cf. id. at 1046–47 (majority opinion). This is consistent with the responses he gave on his judicial nominee questionnaire, which showed support for originalist analysis so long as it conforms to Supreme Court precedent. See S. Comm. on the Judiciary, 116th Cong., Nomination of Daniel Bress to the U.S. Court of Appeals for the Ninth Circuit, Questions for the Record (2019) https://www.judiciary.senate.gov/imo/media/doc/Bress%20Responses%20to%20QFRs.pdf [https://perma.cc/66QG-27S5] (“The Supreme Court has considered the original public meaning of constitutional provisions when construing them. . . . But ultimately, lower court judges must follow the precedents of the Supreme Court.”). Judge Bress engages with the originalist arguments of Judge Bumatay but finds it both incomplete and incorrect. Incomplete, because his originalist analysis “merely cit[es] the general concerns that animated the Fourth Amendment and some basic legal history. . . .” Verdun, 51 F.4th at 1046. And, relatedly, incorrect, because the dissent’s contention that tire chalking exhibits the same characteristic as general warrants and writs and fails to appreciate that the general writs involved search and seizure of “whatever and whomever they pleased while investigating crimes or affronts to the Crown.” Id. While clearly accepting the dissent’s originalist style of argumentation as legitimate, Judge Bress takes issue with it because it “does not even purport to work within the Supreme Court’s established doctrinal framework,” id. at 1047, and is, therefore, “not one we are permitted to follow,” id. at 1048. alternatively, Judge Bumatay starts with originalism as his first principle, which he then supplements with Supreme Court and circuit precedent.⁸⁹89. See Verdun, 51 F.4th at 1049 (Bumatay, J., dissenting) (setting out his originalist framework as the root of his interpretation). Judge Bress’s method leads to an expansive special needs doctrine, and Judge Bumatay’s method leads to a narrow one.

So, Judge Bumatay begins his opinion by framing the original meaning of the Fourth Amendment as being hostile to “suspicionless general warrants.”⁹⁰90. Id. at 1051; see id. at 1056 (“Because dragnets operate without a warrant or individualized suspicion . . . they have been justified in ‘only limited’ contexts involving extraordinary and immediate governmental interests . . . . [G]iven th[is] historical aversion . . . we must scrupulously guard against the expansion of government concerns that warrant this rare exception.”); see also supra Part I. Therefore, the special needs exceptions set out by the Supreme Court in its precedents are incredibly narrow exceptions that must “involv[e] extraordinary and immediate governmental interests.”⁹¹91. Verdun, 51 F.4th at 1056. Interestingly—and this is where Judge Bress explicitly accuses Judge Bumatay of misreading Supreme Court precedent⁹²92. See id. at 1047 (“The dissent not only fails to explain why the original meaning of the Fourth Amendment requires its result, it is essentially in opposition to longstanding Supreme Court precedent . . . .”). —the dissent says this primary-purpose-of-crime-control framework set out in Edmond actually stands for the proposition that general interest in crime control is too minor an interest for the special needs doctrine.⁹³93. See id. at 1057 (Bumatay, J., dissenting) (setting out this interpretation). So, whereas Judge Bress sees this general crime control aspect of Edmond as standing to mean that the special needs doctrine works so long as it is unrelated to criminal evidence-gathering and is reasonable, Judge Bumatay says it stands for the principle that even general crime control is not a high enough interest to satisfy the special needs doctrine. Instead, to satisfy the doctrine, the government needs to propose a purpose that is “grave and urgent,” like preventing a terrorist hijacking.⁹⁴94. Id. (quoting United States v. Davis, 482 F.2d 893, 910 (9th Cir. 1973)); see also City of Indianapolis v. Edmond, 531 U.S. 32, 44 (2000) (“[T]here are circumstances that may justify a law enforcement checkpoint where the primary purpose would . . . relate to ordinary crime control . . . . [T]he Fourth Amendment would almost certainly permit an appropriately tailored roadblock to thwart an imminent terrorist attack . . . .”). Having laid all this out, Judge Bumatay argues that the city is engaging in warrantless and suspicionless general searches⁹⁵95. Verdun, 51 F.4th at 1055 (Bumatay, J., dissenting). for something too mundane like traffic control to justify granting the tremendous power of tire chalking.⁹⁶96. See id. at 1057–58 (drawing a contrast between the concerns motivating chalking and less “routine” challenges such as drunk drivers and hijacking of airplanes). Or, as Judge Bumatay puts it: “[T]he City’s interests in perpetuating its parking enforcement regime don’t chalk up.”⁹⁷97. Id. at 1058.

III. Implications and Core Disagreements

While ostensibly a case just about tire chalk, Verdun has much broader implications. There are three critical concepts illuminated by the opinion that the reader may want to keep an eye on in the future. First, how Verdun informs our understanding of what qualifies as a search under Fourth Amendment. Second, if courts should view the special needs doctrine—at least functionally—as a flexible grant of power or as a narrow exception to a general rule. Third, the debate over tire chalking lays bare an intra-originalist fight between the Judge Bumatay and Justice Scalia originalists versus the Judge Bress and Justice Alito originalists.

A. Is Tire Chalking a Search?

The formulation in Jones and Jardines vastly expanded the potential areas of privacy protections for searches and seizures. With tire chalking, we are confronted with the question of how far this Jones framework goes. A key concept picked up by Judge Bumatay in his Verdun dissent is the idea that Jones and Jardines merged private and public law.⁹⁸98. Cf. id. at 1049 (framing intrusions on private property as common law trespass). As Professors William Baude and James Stern note, Katz concerned abstract notions of what our society views as private and not private.⁹⁹99. See William Baude & James Y. Stern, The Positive Law Model of the Fourth Amendment, 129 Harv. L. Rev. 1821, 1831 (2016) (describing Katz as an “abstract exploration of sensibilities about the privacy of places or information”). What Jones and Jardines have now done, though, is bring us closer to a simplified version of what a search is by examining whether “a government actor [has] done something that would be unlawful for a similarly situated nongovernment actor to do . . . .”¹⁰⁰100. Id.; see also Carpenter v. United States, 138 S. Ct. 2206, 2267–68 (2018) (Gorsuch, J., dissenting) (advocating increased focus on a better, more understandable conception of property law for the Fourth Amendment). However, while Justice Scalia’s property conception of the Fourth Amendment brought Fourth Amendment law closer to private law, it is highly doubtful that he closed the gap completely. For instance, a property and privacy conception of Fourth Amendment law completely shuts off the justifications behind the open fields doctrine,¹⁰¹101. See Baude & Stern, supra note 96, at 1886 (“At a minimum, the [Jones and Jardine] model eliminates the modern rationale for the open fields doctrine.”). which has its reasoning rooted in the Katz formulation that one has no reasonable expectation of privacy in the vast fields of property that they own outside their actual house.¹⁰²102. See Oliver v. United States, 466 U.S. 170, 179 (1984) (“[O]pen fields do not provide the setting for those intimate activities that the [Fourth] Amendment is intended to shelter . . . .”). The open fields doctrine technically should not work under the Jones test. And yet, Justice Scalia in Jardines explicitly voices support for the open fields doctrine, stating that privacy protection for open fields is not “enumerated in the [Fourth] Amendment’s text.”¹⁰³103. Florida v. Jardines, 569 U.S. 1, 6 (2013).

So, a critical debate relevant to tire chalking is how close Jones brings private and public law together. Judge Bumatay’s dissent considers it more 1:1, arguing that since a private party cannot chalk your tires, neither can a public official without a warrant. For Judge Bumatay, it is an “easy case.”¹⁰⁴104. Verdun v. City of San Diego, 51 F.4th 1033, 1051 (9th Cir. 2022) (Bumatay, J., dissenting) (quoting Jardines, 596 U.S. at 11). Judge Bress’s majority opinion is more skeptical of the 1:1 distinction, and while reluctantly considering tire chalking a search, he clearly still has his doubts.¹⁰⁵105. Id. at 1037 (majority opinion).

The above is about the reach of Jones, but if one considers Jones narrowly with respect to tire chalking, the connection is too strong, and it makes it hard to argue that tire chalking is not a search under Jones—this is perhaps why Judge Bress did not fight this point and decided the case on the more solid grounds of the special needs doctrine. Jones, again, said a physical common law trespass with the intent to gain information is a search.¹⁰⁶106. See supra note 27 and accompanying text. Just like the light touch of a GPS tracker was a search, so too should be tire chalking. The counterargument would be that surely GPS information is different and more expansive, but it is important to remember that Justice Scalia’s opinion in Jones said the question of privacy and the GPS data did not matter; rather, it all came down to the physical touch to gain information.¹⁰⁷107. Id. Some have also suggested that tire chalking may not be a search to gain information when it is done because the information is gleaned once the parking enforcer returns.¹⁰⁸108. See Orin S. Kerr, Chalking Tires and the Fourth Amendment, Volokh Conspiracy (Apr. 23, 2019), https://reason.com/volokh/2019/04/23/chalking-tires-and-the-fourth-amendment [https://perma.cc/B8KT-CS6J] (“Is it really a search of the car at Time A to see at Time B if the chalk moved between Time A and Time B?”). This is a relatively weak argument, though, insofar as one could say that very same logic applies to the GPS tracker in Jones. The information was not gained at the time of the placement but after.

It is the obvious triviality of tire chalking that makes it so significant. If tire chalking is a search, that could mean that other government behavior involving touch that was previously seen as unobjectionable could be considered a search. Consider previously unchecked police activity that does not require warrants, such as canine drug sniffs.¹⁰⁹109. See, e.g., United States v. Place, 462 U.S. 696, 707 (1983) (holding that a canine “sniff” is not a search under the Fourth Amendment). What if the dog’s nose lightly taps the bag it is smelling? Or, what if an officer places his hand on the trunk of a car and gently pushes down to make sure it is locked when he pulls a driver over?¹¹⁰110. Cf. Why Do Policemen Touch Your Tail Light When They Pull You Over?, The Law Dictionary, https://thelawdictionary.org/article/why-do-policemen-touch-a-tail-light-when-they-pull-you-over [https://perma.cc/3FZA-JYKE]. Both of these things, by definition, involve a touch (dog nose on bag and officer’s hand on car) to gain information (drugs in the bag or status of the trunk), which is all that is needed for a search under Jones.¹¹¹111. See supra note 27 and accompanying text.

B. Special Needs: Narrow Exception or Broad Tool?

In Verdun, we see two approaches to the special needs doctrine and tire chalking. The Judge Bress majority views the application of special needs broadly and looks to see if the programmatic intent is both unrelated to general crime-fighting efforts and is reasonable.¹¹²112. See supra notes 64–65 and accompanying text. On the other end of the spectrum, the Judge Bumatay dissent sees the special needs doctrine as incredibly narrow and containing only a few notable exceptions for particularly crucial government purposes.¹¹³113. See supra notes 87–90 and accompanying text. For Judge Bress, then, there is a sense that the special needs doctrine can still be used for mundane, necessary purposes, whereas Judge Bumatay suggests mundane purposes can never satisfy.¹¹⁴114. See supra notes 91–94 and accompanying text.

With respect to Judge Bumatay’s dissent, Judge Bress accuses Judge Bumatay of willfully misreading special needs case law.¹¹⁵115. See supra note 89 and accompanying text. And Judge Bress does make a solid argument to that effect in light of Judge Bumatay’s reading of Edmond. Edmond has stood for the proposition in the Ninth Circuit that the special needs doctrine cannot be used for general crime control.¹¹⁶116. See, e.g., Demarest v. City of Vallejo, 44 F.4th 1209, 1218 (9th Cir. 2022) (making this argument). In Edmond, the city tried to justify suspicionless checkpoints to locate narcotics,¹¹⁷117. More specifically, the city set up a number of highway checkpoints on roads within Indianapolis to interdict illegal drugs. City of Indianapolis v. Edmond, 531 U.S. 32, 34–35 (2000). At each checkpoint, an officer would approach the vehicle, tell the person they were being stopped at a drug checkpoint, and ask for licenses and registration all while looking for signs of impairment and looking through the window in an open-view examination. Id. at 35. While this was happening, a “narcotics-detection dog walks around the outside of each stopped vehicle.” Id. but the Supreme Court said that the special needs doctrine did not include general crime fighting purposes.¹¹⁸118. Id. at 41–42. In dicta, however, the Supreme Court left open the possibility that the doctrine may encompass certain terrorism-related purposes.¹¹⁹119. See id. at 44 (“Of course, there are circumstances that may justify a law enforcement checkpoint where the primary purpose would otherwise, but for some emergency, related to ordinary crime control. . . . [T]he Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack . . . .”). Judge Bumatay interpreted this passage to mean that special needs is only for the most pressing needs, like fighting terrorism.¹²⁰120. Verdun v. City of San Diego, 51 F.4th 1033, 1057 (9th Cir. 2022) (Bumatay, J., dissenting). This seems like quite a stretch or, at least, an interpretation outside of the way Edmond is typically interpreted.¹²¹121. See, e.g., Illinois v. Lidster, 540 U.S. 419, 426–27 (2004) (framing Edmond as standing for the idea that the special needs doctrine requires a primary purpose outside of crime control before then engaging in a reasonableness balancing test); United States v. Fraire, 575 F.3d 929, 932 (9th Cir. 2009) (“If the checkpoint is not per se invalid as a crime control device, then the court must ‘judge [the checkpoint’s] reasonableness . . . .’” (quoting id. at 426)); United States v. Henson, 351 F. App’x 818, 820 (4th Cir. 2009) (stating that you first look to whether the primary purpose is a valid, non-criminal one per Edmond before then conducting a balancing test); United States v. William, 603 F.3d 66, 68–69 (1st Cir. 2010) (same). Interestingly, Judge Bumatay did not fight Judge Bress on one of the stronger anti-tire chalking points: whether or not the primary purpose of the tire chalking was to issue fines—i.e., general crime control. This was an important finding the Sixth Circuit hung its hat on when invalidating the tire chalking scheme in Saginaw, Michigan.¹²²122. See Taylor II, 11 F.4th 483, 489 (6th Cir. 2021) (“[T]ire chalking is not necessary to meet the ordinary needs of law enforcement, let alone the extraordinary.”) (citing Edmond, 531 U.S. at 37).

Another key question and tension brought to the surface in this case law is the idea behind special needs and programmatic intent surrounding why a city is doing tire chalking. In decisions surrounding the Fourth Amendment, the Supreme Court has been clear that the Fourth Amendment is concerned with objective standards and not with why an officer is doing something.¹²³123. See, e.g., Horton v. California, 496 U.S. 128, 138 (1990) (“[E]venhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer.”); Brigham City v. Stuart, 547 U.S. 398, 404 (2006) (“The Utah Supreme Court also considered the officers’ subjective motivations relevant. . . . Our cases have repeatedly rejected this approach.”). In Whren v. United States, a unanimous Supreme Court said that “the Fourth Amendment’s concern with ‘reasonableness’ allows certain actions to be taken in certain circumstances, whatever the subjective intent.”¹²⁴124. 517 U.S. 806, 814 (1996). The Court further added that the protections of the Fourth Amendment cannot “be made to turn upon such trivialities” like the subjective intent of the action.¹²⁵125. Id. at 815. And yet, when it comes to the programmatic intent of a government action like tire chalking, which is arguably a lot harder and more complicated to discern than an individual officer’s intent, the constitutionality of the practice may live or die based on the subjective reasoning of why it is being done. This is not even to mention the genuine possibility that some cities’ primary purposes for tire chalking will be issuing citations and others will be for traffic control.

The issue of tire chalking has implications for the future of the special needs doctrine. It can narrow the doctrine to what is only necessary or extreme (Judge Bumatay dissent); alternatively, it can leave room for its expansion (Judge Bress majority). First step is tire chalking; next step is car GPS trackers for everyone.¹²⁶126. This, of course, would be unlawful per United States v. Jones, 565 U.S. 400 (2012), so we know that—at least now—the line is at least somewhere before GPS trackers. Or maybe not. It depends on where and if you draw the line somewhere.

C. Originalism and Its Limits—or Lack Thereof

Jones, Jardines, and Verdun are also interesting for the originalist infighting they create: the perhaps softer originalists, Judge Bress and Justice Alito, against the more hardcore originalists, Judge Bumatay and Justice Scalia. In Jones and Jardines, Justice Scalia’s property conception of the Fourth Amendment is stiff and binary.¹²⁷127. Cf. Florida v. Jardines, 569 U.S. 1, 11 (2013) (“One virtue of the Fourth Amendment’s property-rights baseline is that it keeps easy cases easy.”). For Justice Scalia, the Fourth Amendment was fastened firmly to property protections in its original conception.¹²⁸128. See United States v. Jones, 565 U.S. 400, 405 (2012) (“The text of the Fourth Amendment reflects its close connection to property . . . .”); see also Jardines, 569 U.S. at 5 (describing baseline protections for physical intrusions). Justice Alito disagrees, viewing the Fourth Amendment as being about broader privacy protections that encompass new technology.¹²⁹129. See Jones, 565 U.S. at 421–22 (Alito, J., concurring) (framing Katz as doing away with the old property-rights baseline and onto a broader, more modern conception of privacy); see also Jardines, 569 U.S. at 17 (Alito, J., dissenting) (framing his argument about reasonable expectation of privacy). For Justice Alito, it is not correct to simply have the property conception coexist with the Katz conception because, under the Fourth Amendment, a technical trespass is neither necessary nor sufficient.¹³⁰130. See Jones, 565 U.S. at 423 (Alito, J., concurring). What is interesting about this is that both Justices are self-professed originalists¹³¹131. See generally Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849 (1989) (Justice Scalia defending his viewpoint on originalism); Neil S. Siegel, The Distinctive Role of Justice Samuel Alito: From a Politics of Restoration to a Politics of Dissent, 126 Yale L.J.F. 164, 166 (2016) (noting that Justice Alito is a self-described originalist). yet come out with very different views on this question.

Arguably, one could square the distinction between an originalism which takes past principles and adopts them to the present (Justice Alito) and an originalism which takes past principles and actively resists adopting them to the present (Justice Scalia). Justice Alito’s framework may initially appear to come close to the ostensible counter to originalism: living constitutionalism.¹³²132. See generally Lawrence B. Solum, Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate, 113 Nw. U. L. Rev. 1243, 1244 (2019) (“Originalists argue that the meaning of the constitutional text is fixed and that it should bind constitutional actors. Living constitutionalists contend that constitutional law can and should evolve in response to changing circumstances.”). Solum goes on to define several different and competing versions of living constitutionalism in the same piece. See id. at 1271–76. An attempt to square Justice Alito’s vision of originalism as being separate from living constitutionalism, of course, would require several pages of analysis, but, arguably, it can be squared. Take someone closer to the ideology of living constitutionalism like Justice John Paul Stevens,¹³³133. See, e.g., McDonald v. City of Chicago, 561 U.S. 742, 877 (2010) (Stevens, J., dissenting) (“The judge who would outsource the interpretation of ‘liberty’ to historical sentiment has turned his back on a task the Constitution assigned to him and drained the document of its intended vitality.”); see also id. at 803 (Alito, J., concurring) (“Justice Stevens’ response to this concurrence makes the usual rejoinder of ‘living Constitution’ advocates . . . .”). who sees constitutional interpretation as being based on the premise that the definition of certain concrete terms can be defined by future generations.¹³⁴134. See John Paul Stevens, The Third Branch of Liberty, 41 U. Mia. L. Rev. 277, 291 (1986) (“The task of giving concrete meaning to the term ‘liberty’ . . . was [a part] of the work assigned to future generations of judges.”) (emphasis added). Justice Alito, meanwhile, holds the definition of liberty at the Founding stagnant, but is more willing to separate it purely from its physical context.¹³⁵135. Compare Jones, 565 U.S. at 420 (Alito, J., concurring) (“The Court argues—and I agree—that ‘we must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted . . . .”’ But it is almost impossible to think of late-18th-century situations that are analogous to which took place in this case.” (internal citation omitted)), with id. at 406 n.3 (majority opinion) (arguing by analogy that tracking of car movements was originally considered by the Founders because “it posits a situation that is not far afield—a constable’s concealing himself in the target’s coach in order to track its movements”). The back and forth of the “small constable” between the two Justices shows Justice Scalia straining to preserve the Amendment historically and Justice Alito willing to bend when the historical analogizing becomes too ridiculous. See id. at 420 n.3 (Alito, J., concurring) (“The Court suggests that something like this might have occurred in 1791, but this would have required either a gigantic coach, a very tiny constable, or both—not to mention a constable with incredible fortitude and patience.”). As a rough metaphor, one could think of constitutional meaning as a historical rock: Justice Stevens says the rock can be replaced by future generations, Justice Alito says the original rock is to be smoothed by future generations, and Justice Scalia says the rock is to be preserved by future generations. Of course, Justice Alito’s view is much more similar to Justice Stevens’s view than Justice Scalia’s is. Thus, it is no surprise that Justice Alito was able to get Justices Ruth Bader Ginsburg, Steven Breyer, and Elena Kagan—but not Sonia Sotomayor—to sign onto his opinion in Jones.¹³⁶136. Id. at 418.

A similar split is happening between Judges Bumatay and Bress in Verdun. Judge Bress has a clear skepticism of Justice Scalia’s understanding in Jones. This is made apparent in Judge Bress’s inadvertent—or intentional—tipping of his hand, where he describes Jones as a “reorientation” of the Fourth Amendment.¹³⁷137. Verdun v. City of San Diego, 51 F.4th 1033, 1036–37 (9th Cir. 2022). Of course, true believers like Judge Bumatay or Justice Scalia would not describe Jones as a “reorientation” of the Fourth Amendment since the whole premise of Jones is that the property conception of the Fourth Amendment was present since the beginning.¹³⁸138. See Jones, 565 U.S. at 407–08 (arguing that Katz had never repudiated the old property rights baseline of the Fourth Amendment). Judge Bress posits that surely not every touch to gain information is a search.¹³⁹139. See Verdun, 51 F.4th at 1037. Judge Bumatay, however, adopts a much stricter approach and stresses the rigid property conception of what constitutes a search laid out by Justice Scalia in Jones.¹⁴⁰140. See id. at 1049–50 (Bumatay, J., dissenting). As originalism becomes more popular and cements itself as the default framework of constitutional analysis for some judges, tire chalking and Jones present a potential intra-originalist fight.

Conclusion

The October 2022 Verdun decision was about much more than tire chalking. In parting ways with the Sixth Circuit’s decision in Taylor, the Ninth Circuit created a problem ripe for Supreme Court review that carries with it incredibly far-reaching consequences. Is the Jones conception of what constitutes a search unlimited, or is there a line? How potent is the special needs doctrine and does it reach tire chalking? Is the primary purpose of tire chalking for general criminal investigative purposes, and should we even be considering subjective intent in handling Fourth Amendment questions? How should an originalist approach the question of tire chalking and the special needs doctrine?

There is something quintessentially American about a constitutional standoff concerning the use of tire chalk by parking enforcers. Throughout our history, American society has developed a natural distrust of government.¹⁴¹141. See Michael Price, Remember Why We Have the Fourth Amendment, Brennan Ctr. (Nov. 25, 2015), https://www.brennancenter.org/our-work/analysis-opinion/remember-why-we-have-fourth-amendment [https://perma.cc/J3N8-4U53] (“[A]s Americans, we are . . . committed to a few basic values that we do not fail to mention time-and-again from atop our shining city on a hill—liberty being chief among them.”). When the British gave general writs of assistance to revenue collectors, it was this instinctive distrust that enraged James Otis. “[These writs are] the worst instrument of arbitrary power . . . that was ever found in an English law book,” he said, because “the liberty of every man [is] in the hands of every petty officer.”¹⁴²142. Boyd v. United States, 116 U.S. 616, 625 (1886). Otis is inextricably linked with the Fourth Amendment; his 1761 words are cited again and again by the Supreme Court.¹⁴³143. See, e.g., Stanford v. Texas, 379 U.S. 476, 481 (1965); Terry v. Ohio, 392 U.S. 1, 37 (1968) (Douglas, J., dissenting); Payton v. New York, 445 U.S. 573, 583 n.21 (1980); Carpenter v. United States, 138 S. Ct. 2206, 2213 (2018). What the Supreme Court leaves out, though, is that Otis was also famously prone to “fits of insanity” and suffered from an unstable psyche.¹⁴⁴144. See James Otis: American Politician, Encyc. Britannica, https://www.britannica.com/biography/James-Otis [https://perma.cc/T2PG-3MNN] (describing Otis as “prone to fits of insanity”); James R. Ferguson, Reason in Madness: The Political Thought of James Otis, 36 Wm. & Mary Q. 194, 194–95 (1979) (“As early as 1765 [James Otis’] mental instability was clearly evident in his confused and erratic behavior . . . .”); Erick Trickey, Why the Colonies’ Most Galvanizing Patriot Never Became a Founding Father, Smithsonian Mag. (May 5, 2017), https://www.smithsonianmag.com/history/transformative-patriot-who-didnt-become-founding-father-180963166 [https://perma.cc/N7TT-ZSQ7] (discussing Otis’s fragile psyche, which was further exasperated after he was wounded in a fight). In 1770, John Adams wrote about Otis again, this time noting that Otis had been described by a colleague that afternoon as “raving Mad—raving vs. Father, Wife, Brother, Sister, Friend &c. [sic]”¹⁴⁵145. John Adams, Diary Entry of Feb. 26, 1770, in Diary and Autobiography of John Adams, Volume I, Diary, 1755-1770, 349–50 (L.H. Butterfield ed., 1961). This added context may put Otis’s words in perspective and perhaps be used to frame his complaints as somewhat hyperbolic. On the other hand, it is worth considering how useful a natural skepticism of government power is in protecting the promises that underly the Fourth Amendment. In that way, maybe the duality of Otis is what makes him the perfect representative for that Amendment. What would he think of tire chalking?

April 23, 2023

Confederación Hípica v. Confederación de Jinetes Puertorriqueños

Jack Samuel

The First Circuit Clarifies That the Statutory Labor-Dispute Exemption From Antitrust Scrutiny Applies to Any Worker Involved in a Dispute Over Wages.

Jack Samuel

Recent Case: Confederación Hípica v. Confederación de Jinetes Puertorriqueños (Jinetes), 30 F.4th 306, 311 (1st Cir. 2022), cert. denied, 143 S. Ct. 631 (2023).

The First Circuit Court of Appeals recently held that the statutory labor-dispute exemption—which immunizes collective action by workers against antitrust scrutiny—applies to any worker involved in a dispute over wages, regardless of the worker’s independent contractor status under labor law. The Supreme Court has long held that the exemption does not apply to independent contractors involved in genuinely entrepreneurial dealings, while leaving open the question of its applicability to workers who sell only their labor outside of the legal employment relation. In holding that this exemption does apply to independent contractors so long as the concerted activity arises in the context of a genuine labor dispute, the First Circuit nevertheless declined to set out a test to establish when a labor dispute qualifies as a dispute over wages.

INTRODUCTION

Workers classified as independent contractors do not enjoy the legal benefits of the employment relationship, including the protection of wage and hour laws, an entitlement to workers’ compensation or unemployment benefits, or access to the National Labor Relations Act’s (“NLRA”) framework for collective bargaining.³3. The NLRA explicitly excludes “independent contractors,” 29 U.S.C. § 152(3), while federal wage-and-hour protections under the Fair Labor Standards Act (FLSA) are limited to “employees.” See 29 U.S.C. § 206(a) (setting a federal minimum wage for employees); id. § 207(a) (setting maximum hours for employees). Unemployment and workers’ compensation benefits are typically administered through state law, and while states vary in their approach to classifying workers, they all limit benefits to workers classified as employees. See Independent Contractor Classification, Practical Law Practice Note 4-503-3970, State and Local Tests; see also generally Brishen Rogers, Employment Rights in the Platform Economy: Getting Back to Basics, 10 Harv. L. & Pol’y Rev. 479, 484–96 (2016) (discussing the employee-independent contractor distinction’s ramifications for Uber and Lyft drivers); Catherine L. Fisk, Sustainable Alt-Labor, 95 Chi.-Kent L. Rev. 7, 15–16 (2020) (noting how misclassification of workers as independent contractors through the courts has resulted in a loss of substantial employee benefits for those workers). Another possible consequence of independent contractor status is antitrust liability: While employees may engage in otherwise-illegal concerted action as part of a labor dispute, according to one theory of the “labor-dispute exemption,” independent contractors can be sued, enjoined, and forced to pay treble damages to the companies they work for if they organize to demand higher wages and strike.⁴4. See Brief for the United States and the Federal Trade Commission as Amici Curiae at 8, Chamber of Com. v. City of Seattle, 890 F.3d 769 (9th Cir. 2018) (No. 17-36540) (“Independent contractors, as horizontal competitors, may not collude to set the price for their services.”); 15 U.S. Code § 15(a) (authorizing treble damages in private suits); infra Part I. Platform workers in the ride-hailing industry are currently considered independent contractors under federal labor law, and thus if they go on strike or exert collective pressure on platform companies, they may face liability under the antitrust laws.⁵5. NLRB Advice Memorandum, Uber Technologies, Inc. Cases 13-CA-163062, 14-CA-158833, and 29-CA-177483 (Apr. 16, 2019) (uber drivers are classified as independent contractors under the prevailing standard based on Supershuttle DFW, Inc., 367 NLRB No. 75 (Jan. 25, 2019)); but see Order Granting Review and Notice and Invitation to File Briefs, The Atlanta Opera, Inc., Case 10-RC-276292 (Dec. 27, 2021) (inviting parties and amici to submit briefs addressing whether the Board should reconsider the Supershuttle standard).

In 2016, a group of Puerto Rican jockeys formed a labor organization to protest the terms under which they were hired by the horse owners and the owner-operator of a racetrack.⁶6. Confederación Hípica v. Confederación de Jinetes Puertorriqueños (Jinetes), 30 F.4th 306, 311 (1st Cir. 2022), cert. denied, 143 S. Ct. 631 (2023). The jockeys organized a strike, and the horse and racetrack owners sued. The District Court found that the jockeys had violated antitrust law by acting in concert to restrain trade and could not benefit from the labor-dispute exemption because of their independent contractor status.⁷7. Id. at 312. In April 2022, the First Circuit reversed, extending the statutory labor-dispute exemption beyond the legal employment relationship for the first time.⁸8. Id. at 314. Strictly speaking, what was new in this case was extending the exemption to alleged independent contractors without finding any employee-employer relationship indirectly at issue; courts have included independent contractors in the exemption in some limited circumstances involving industries in which independent contractors compete with legal employees. See infra note 22 and accompanying text. The First Circuit also did not take a position on the jockeys’ status, rejecting a doctrinal framework that would require a finding of employee status before applying the exemption. See infra Part II.

The rule the court articulated—that any dispute over wages is a labor dispute, regardless of whether or not it is between employees and employers—opens the door to labor organizing in the gig economy, an important opportunity for workers in a growing sector.⁹9. See Lawrence F. Katz & Alan B. Krueger, The Rise and Nature of Alternative Work Arrangements in the United States, 1995–2015, 72 ILR Rev. 382, 383 (2019) (“[T]he percentage of workers engaged in alternative work arrangements—defined as temporary help agency workers, on-call workers, contract company workers, and independent contractors or freelancers—rose from 10.7% in February 2005 to somewhere in the 12.6 to 15.8% range in late 2015.”); Monica Anderson, Colleen McClain, Michelle Faverio & Risa Gelles-Watnick, Pew Rsch. Ctr., The State of Gig Work in 2021, at 11 (2021), https://www.pewresearch.org/internet/2021/12/08/americans-experiences-earning-money-through-online-gig-platforms [https://perma.cc/LYM9-YNUJ] (“About one-in-ten adults (9%) have earned money doing gig platform work in the past 12 months.”).But it’s unclear just how far it opened the door: Replacing a categorical test based on employee classification with the hazy distinction between wages and prices allows courts to construe the exemption as broadly or as narrowly as they like.

I. The Statutory Labor-Dispute Exemption Before Jinetes

Section 1 of the Sherman Act prohibits “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade.”¹⁰10. 15 U.S.C. § 1. The Act was originally passed to fight rising corporate monopolies,¹¹11. See Apex Hosiery Co. v. Leader, 310 U.S. 469, 492–93 (1940) (“[The Sherman Act] was enacted in the era of ‘trusts’ and of ‘combinations’ of businesses and of capital organized and directed to control of the market by suppression of competition in the marketing of goods and services, the monopolistic tendency of which had become a matter of public concern.”); Standard Oil Co. v. United States, 221 U.S. 1, 50 (1911) (“[T]he main cause which led to the legislation was the thought that it was required by the economic condition of the times; that is, the vast accumulation of wealth in the hands of corporations and individuals.”). but courts—eager to suppress the nascent labor movement—relied on the vague language of the Sherman Act to issue injunctions against strikers, picketers, and any form of labor action involving violence, social pressure, or even “moral intimidation.”¹²12. Vegelahn v. Guntner, 44 N.E. 1077, 1077 (1896); see Loewe v. Lawlor (Danbury Hatters), 208 U.S. 274, 276 (1908) (holding unions subject to injunctions under the Sherman Act).

In 1914, Congress attempted to oust federal courts from antitrust scrutiny of labor disputes through the passage of the Clayton Act. Section 6 of the Clayton Act declares that, for the purposes of antitrust law, “[t]he labor of a human being is not a commodity,” and that “[n]othing contained in the antitrust laws shall be construed to forbid the existence and operation of labor . . . organizations . . . ; nor shall such organizations, or the members thereof, be held or construed to be illegal combinations or conspiracies in restraint of trade, under the antitrust laws.”¹³13. 15 U.S.C. § 17. Yet, the federal courts were not deterred. In Duplex Printing, the Supreme Court construed Section 20 of the Clayton Act as merely codifying the case law that had grown around the labor injunction, importing the federal common-law prohibitions on labor boycotts enforced in cases like Danbury Hatters.¹⁴14. Duplex Printing Press Co. v. Deering, 254 U.S. 443, 470 (1921) (“The first paragraph [of Clayton Act § 20] merely puts into statutory form familiar restrictions upon the granting of injunctions already established and of general application in the equity practice of the courts of the United States.”).

President Hoover signed the Norris-LaGuardia Act in 1932.¹⁵15. 29 U.S.C. § 101. That Act barred federal courts from issuing injunctions “in a[ny] case involving or growing out of a labor dispute.”¹⁶16. Id. A decade later, and after the additional passage of the NLRA, the Court construed the ouster broadly, restoring the original purpose of the Clayton Act as a bar on any antitrust scrutiny of labor organizing.¹⁷17. See United States v. Hutcheson, 312 U.S. 219, 231 (1941) (“[W]hether trade union conduct constitutes a violation of the Sherman Law is to be determined only by reading the Sherman Law and § 20 of the Clayton Act and the Norris-LaGuardia Act as a harmonizing text . . . .”).

The next year, the Supreme Court issued the first in a series of decisions that narrowed the applicability of the labor-dispute exemption. In Columbia River Packers, the Supreme Court declined to apply the exemption to a dispute between a fishermen’s union and the owner of a cannery.¹⁸18. Columbia River Packers Ass’n v. Hinton, 315 U.S. 143, 145 (1942). The union represented fishermen who owned or leased fishing vessels and, in some cases, employed their own crew.¹⁹19. Id. at 147. The Court found that they were independent businesspeople, and their dispute with the cannery was over “the terms of a contract for the sale” of fish, rather than, as the Norris-LaGuardia Act required, “the terms or conditions of employment.”²⁰20. Id. at 145. The Court reasoned that because in passing the Norris-LaGuardia Act “the attention of Congress was focussed upon disputes affecting the employer-employee relationship, . . . the Act was not intended to have application to disputes over the sale of commodities.”²¹21. Id. While acknowledging that the Norris-LaGuardia Act expressly allowed for parties to a labor dispute that did not stand in “the proximate relation of employer and employee,” the Court insisted that it did not apply to “controversies upon which the employer-employee relationship has no bearing.”²²22. Id. at 147.

Though nothing in either the Clayton or Norris-LaGuardia Act conditions the immunity on the labor group consisting of common-law employees (as opposed to independent contractors), the Court has, in a handful of cases, declined to apply the immunity to independent contractors that were selling (or re-selling) goods, or whom the Court found were otherwise in business for themselves, and not merely workers selling their labor.²³23. See, e.g., United States v. Women’s Sportswear Mfr. Ass’n, 336 U.S. 460, 463–64 (1949) (denying the exemption to a stitching contractor who sold labor but also had “rentals, capital costs, overhead and profits,” and thus was “an entrepreneur, not a laborer”); Los Angeles Meat & Provision Drivers Union v. United States, 371 U.S. 94, 96–97 (1962) (denying the exemption to “grease peddlers,” whom the Court found were “independent entrepreneurs whose earnings as middlemen consisted of the difference between the price at which they bought . . . restaurant grease . . . and the price at which they sold it to the processors,” and who had significant capital investment in the form of “operating and maintaining their trucks”); see also FTC v. Superior Ct. Trial Laws. Ass’n, 493 U.S. 411, 436 (1990) (upholding FTC order against boycott by private attorneys who worked as court-appointed counsel). The exemption was not raised on appeal. See Superior Ct. Trial Laws. Ass’n v. FTC, 856 F.2d 226, 230 n.6 (D.C. Cir. 1988) (“Petitioners routinely used the word ‘strike’ to describe their concerted refusal to accept new cases. Petitioners have not suggested, however, that they are ‘employees’ within the meaning of § 20 of the Clayton Act . . . or that SCTLA is a ‘labor organization’ within the meaning of § 6 of the same Act . . .”). In other cases, workers classified as independent contractors, doing the same work as employees but under different contractual conditions, have enjoyed antitrust immunity for labor union activity.²⁴24. See, e.g., Am. Fed’n of Musicians v. Carroll, 391 U.S. 99, 106 (1968) (treating independent contractor band leaders as a “labor group” involved in a “labor dispute” due to the presence of “job or wage competition or some other economic inter-relationship affecting legitimate union interests between the union members and the independent contractors”); H.A. Artists & Assocs., Inc. v. Actors’ Equity Ass’n, 451 U.S. 704, 721–22 (1981) (“In a case . . . where there is no direct wage or job competition between the union and the group it regulates [viz. agents], the Carroll formulation to determine the presence of a nonlabor group . . . necessarily resolves this issue.”). While some lower courts have inferred a categorical exclusion,²⁵25. See, e.g., Taylor v. No. 7, Int’l Union of Journeymen Horseshoers, 353 F.2d 593, 606 (4th Cir. 1965) (finding that a boycott by the farriers’ union was not entitled to the exemption because the farriers “do not stand in the proximate relation of employees and employers” with horse owners and trainers and “[t]here is no evidence in the record that the boycotting and price-fixing activities of the defendant unions were undertaken in aid of or in connection with the wages, hours, working conditions or any other interest of horseshoers”); Julien v. Soc’y of Stage Dirs. & Choreographers, Inc., No. 68 CIV 5120, 1975 WL 957, at *1 (S.D.N.Y. Oct. 7, 1975) (finding that members of defendant organization “are employees of producers and not independent contractors [and] therefore come[] within the labor exemption”); Int’l Ass’n of Heat & Frost Insulators & Asbestos Workers, etc. v. United Contractors Ass’n, 483 F.2d 384, 390–91 (3d Cir. 1973) (“[C]ourts have sought to fashion the labor exemption . . . according to the . . . analyses of the function of the work in its relevant economic relationships.”); Spence v. Se. Alaska Pilots’ Ass’n, 789 F. Supp. 1007, 1012 (D. Alaska 1990) (“A party seeking refuge in the statutory exemption must be a bona fide labor organization and not independent contractors.” (citing H.A. Artists & Assocs., Inc. v. Actors’ Equity Ass’n, 451 U.S. 704, 717 n.20 (1981))); Ring v. Spina, 148 F.2d 647, 652 (2d Cir. 1945) (“[T]he controversy cannot concern itself with conditions of employment, since none of the parties affected are in any true sense employees. . . . We think the exception therefore inapplicable.”). the Supreme Court’s cases on the issue are few, and offer ambiguous guidance.²⁶26. See Henry H. Perritt, Jr., Don’t Burn the Looms—Regulation of Uber and Other Gig Labor Markets, 22 SMU Sci. & Tech. L. Rev. 51, 143–44 (2019) (“Most labor lawyers assume that independent contractors are outside the scope of the labor exemption, on the strength of Allen Bradley, Columbia River Packers, and a number of lower court opinions. However, the case law supporting that proposition is not as strong as one might assume.”); Michael C. Duff, Labor Viscerality? Work Stoppages in the “New Work” Non-Union Economy, 65 St. Louis U. L.J. 115, 148–49 (2020) (noting “the paucity of authority since Columbia River Packers touching on the question of application of the [Norris-LaGuardia Act] to non-employee workers,” and that “it is difficult to locate any narrowing authority” to support lower court inferences to a categorical rule); Samuel Estreicher & Jack Samuel, Independent-Contractor Unionism and the Antitrust Laws 49–56 (Apr. 4, 2023) (unpublished manuscript) (on file with author) (arguing that the Supreme Court’s precedents do not incorporate the common-law agency tests but rather distinguish workers, including independent contractors who sell only their labor, from independent entrepreneurs). Some labor and antitrust experts side with the lower courts in adopting a categorical approach, while others argue that—as far as the Supreme Court cases go—there remains a grey area in which independent contractors who are not in business for themselves fall within the scope of the exemption.²⁷27. Compare Brief for the United States and the Federal Trade Commission as Amici Curiae at 8, Chamber of Com. v. City of Seattle, 890 F.3d 769 (9th Cir. 2018) (No. 17-36540) (“Independent contractors, as horizontal competitors, may not collude to set the price for their services.”), and Heather M. Whitney, Rethinking the Ban on Employer-Labor Organization Cooperation, 37 Cardozo L. Rev. 1455, 1482 n.143 (2016) (summarizing the current doctrine as categorically excluding independent contractors), with Brief for Professor Samuel Estreicher as Amicus Curiae at 5, Chamber of Com. v. City of Seattle, 890 F.3d 769 (9th Cir. 2018) (No. 17-36540) (“There is nothing in the Clayton Act or Supreme Court decisions on labor’s statutory antitrust exemption that hinges the applicability of the exemption on ‘employee’ status under federal labor relations law.”).

II. The First Circuit’s Decision

Puerto Rico is home to only one racetrack: Hipódromo Camarero in the town of Canóvanas.²⁸28. Jinetes, 30 F.4th 306, 311 (1st Cir. 2022), cert. denied, 143 S. Ct. 631 (2023). The Camarero jockeys are hired by horse owners and paid a twenty-dollar “mount fee” per race—a rate about one-fifth of that paid to their counterparts in the rest of the United States, and which has not changed since 1989—plus prize money for the top five finishers.²⁹29. Id. The jockeys have been unhappy with this arrangement for years; they have also criticized pre-race weigh-in procedures and the conduct of racing officials.³⁰30. Id. On June 10, 2016, several aggrieved jockeys refused to race.³¹31. Id. Race officials fined them; in response, thirty-seven jockeys refused to race for three days.³²32. Id. The horse and racetrack owners sued the jockeys, along with their spouses and two different associations that had been involved in the dispute.³³33. Id. The district court enjoined the work stoppage and awarded summary judgment to the owners, trebling their claimed losses and ordering the jockeys to pay $1,190,685.³⁴34. Id. at 312.

On appeal, the jockeys argued that the labor-dispute exemption should apply. The First Circuit rejected the district court’s categorical exclusion of the jockeys from the protection of the labor-dispute exemption based on their “alleged independent-contractor status.”³⁵35. Id. at 314. It noted that “any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating . . . terms or conditions of employment,”³⁶36. Id. at 313 (quoting 29 U.S.C. § 113(c)). was by statute an exempted labor dispute.

The court interpreted Columbia River Packers as standing not for a categorical exclusion of independent contractor labor organizations but for a distinction between “disputes about wages for labor” and “those over prices for goods.”³⁷37. Id. at 315. The court distinguished Taylor v. Loc. No. 7, Int’l Union of Journeymen Horseshoers, 353 F.2d 593 (4th Cir. 1965) (en banc), along the same lines: The independent contractors in that case did not only sell their labor but sold horseshoes as well, so the dispute was at least partly over prices for goods. Id. at 315 n.3. The First Circuit did not address Women’s Sportswear or Los Angeles Meat and discussed Superior Court Trial Lawyers Association only by way of noting that the labor exemption was not argued. See id. at 316 n.4. Unlike other independent contractor cases, the First Circuit held that, as a “labor only case,” Jinetes did not involve any dispute over prices. “The key question,” according to the First Circuit, “is not whether the jockeys are independent contractors or laborers but whether what is at issue is compensation for their labor.”³⁸38. Id. at 314.

Having established the irrelevance of the jockeys’ employment status as a threshold question determining the exemption’s applicability, the First Circuit applied the four-part test usually reserved for disputes involving employees. The exemption “applies to conduct arising (1) out of the actions of a labor organization and undertaken (2) during a labor dispute, (3) unilaterally, and (4) out of the self-interest of the labor organization.”³⁹39. Id. at 313. The defendant association in Jinetes “advocates for the jockeys’ terms of employment”⁴⁰40. Id. at 314. and thus is “a ‘bona fide’ group representing laborers,”⁴¹41. Id. at 313 (quoting H.A. Artists & Assocs., Inc. v. Actors’ Equity Ass’n, 451 U.S. 704, 717 (1981)). regardless of whether it is “formally recognized as a union.”⁴²42. Id. (citing NLRB v. Wash. Aluminum Co., 370 U.S. 9, 14–15 (1962)). Because defendants struck for “higher wages and safer working conditions,” theirs was “a core labor dispute.”⁴³43. Id. at 314. “The district court erred,” the First Circuit held, “when it concluded that the jockeys’ alleged independent-contractor status categorically meant they were ineligible for the exemption” because “by the express text of the Norris-LaGuardia Act, a labor dispute may exist ‘regardless of whether or not the disputants stand in the proximate relation of employer and employee.’”⁴⁴44. Id. (quoting 29 U.S.C. § 113(c)).

The third and fourth requirements were not in dispute.⁴⁵45. Id. (“The plaintiffs make no assertion that the defendants coordinated with any nonlabor group. And the defendants acted to serve their own economic interests.”). The First Circuit found that the test was satisfied by the facts of the case, and thus that the labor-dispute exemption applied.⁴⁶46. Id. at 316.

III. The Future of Independent Contractor Organizing?

The Jinetes decision offers hope to workers organizing in the platform economy. Citing Jinetes, the Federal Trade Commission (FTC) has recently indicated an intention “not [to] focus [enforcement] on organizing efforts undertaken by gig workers.”⁴⁷47. Fed. Trade Comm’n, Policy Statement on Enforcement Related to Gig Work 14 n.68 (2022), https://www.ftc.gov/system/files/ftc_gov/pdf/Matter%20No.%20P227600%20Gig%20Policy%20Statement.pdf [https://perma.cc/7KLY-TVT2]. As an increasing share of the workforce falls outside the protection of the NLRA due to workplace fissuring and the growth of “gig economy” firms,⁴⁸48. See generally David Weil, The Fissured Workplace: Why Work Became So Bad for So Many and What Can Be Done to Improve It (2014) at 10 (“Employers have incentives to [fissure] for obvious reasons: shifting employment to other parties allows an employer to avoid mandatory social payments (such as unemployment and workers’ compensation insurance or payroll taxes) or to shed liability for workplace injuries by deliberately misclassifying workers as independent contractors.”). and as unionization efforts at workplaces across the country like Amazon and Starbucks continue to gather steam,⁴⁹49. See, e.g., Sharon Block & Benjamin Sachs, Mapping Union Activity at Amazon, OnLabor (Apr. 1, 2022), https://onlabor.org/mapping-union-activity-at-amazon-update-april-1-2022 [https://perma.cc/Y2EJ-RYKC] (“[E]specially when paired with the recent wave of successful Starbucks organizing sweeping the nation, [the union victory in Amazon’s Staten Island facility] could precipitate a surge of union organizing in pivotal economic sectors, such as the service sector, in which unions have traditionally struggled to gain a meaningful foothold.”). replacing the categorical rule with a potentially more flexible standard would be a timely expansion of the right to strike. Exactly how sweeping a change the decision signals will depend on how the wages/prices distinction is applied. Yet the First Circuit said little to indicate how future courts should apply it.⁵⁰50. Some remarks in footnote 3 of Jinetes distinguish Taylor and suggest the surprising conclusion that the distinction mirrors that between selling services and selling goods. Jinetes, 30 F.4th 306, 315 n.3 (1st Cir. 2002), cert. denied, 143 S. Ct. 631 (2023). In Taylor, the workers “provided not just labor but also a product [namely horseshoes] . . . to their customers,” unlike Jinetes, which is a “labor-only” case. Id. This could be interpreted to imply that so long as putative laborers are not selling any goods they are entitled to the labor exemption, which would place plumbers and dentists into the same category as steelworkers, longshoremen, and mail carriers. Whatever the merits of allowing plumbers or dentists to collectively set prices, such a rule would be unlikely to survive further judicial review. It is well-settled law that attempts by dentists’ organizations to set rates constitute illegal cartels. See FTC v. Ind. Fed’n of Dentists, 476 U.S. 447 (1986); see also Marina Lao, Workers in the “Gig” Economy: The Case for Extending the Antitrust Labor Exemption, 51 U.C. Davis L. Rev. 1543, 1563–64 n.88 (2018) (collecting cases). In addition to being overinclusive of professional services providers, such a rule could be underinclusive of workers involved in the production or distribution of goods, so long as their contracts can be structured to construe their pay as a price per unit, though in most cases this would require novel forms of fissuring, as wages cannot be reasonably construed as prices for goods if the workers never own the goods in the first place.

The First Circuit held that Columbia River Packers stands not for the categorical rule based on classification, but for the wages/prices distinction, effectively rejecting the Supreme Court’s claims about the importance of the employer-employee relationship as dicta.⁵¹51. See Jinetes, 30 F.4th at 314–15. If the wages/prices distinction operated independently of employee classification, how was the distinction applied there? In Columbia River Packers, the decision rested partly on the Court’s finding that the fishermen operated with significant independence and had invested capital in their individual fishing operations.⁵²52. Columbia River Packers Ass’n v. Hinton, 315 U.S. 143, 147 (1942) (“[The fishermen] desire[d] . . . to continue to operate as independent businessmen, free from such controls as an employer might exercise.”). Capital investment and independence are among the central criteria in distinguishing independent contractors from employees under the common law “control” test,⁵³53. See Restatement (Second) of Agency § 220 (Am. L. Inst. 1958). which determines employee status under the NLRA.⁵⁴54. See NLRB v. United Ins. Co. of Am., 390 U.S. 254, 256 (1968) (holding that the Taft-Harley amendment of the NLRA’s definition of “employee” to exclude “independent contractors” was intended to incorporate the common-law control test); see also Supershuttle DFW, Inc., 367 NLRB No. 75 at *2 (Jan. 25, 2019) (summarizing NLRB’s interpretation of the common-law control test factors specified in United Insurance). But these factors need not be understood to have legal significance only in the context of employee classification tests. One possible interpretation of Jinetes is that the categorical approach relies on the right factors but is viewed through the wrong doctrinal lens, and thus that capital investment and independence go to distinguishing prices from wages not because prices are by definition paid to contractors and wages to employees—but because employment classification and the wages/prices distinction both reflect the substance of the underlying economic relationships. Rejecting the categorical approach amounts to holding that courts should look directly at the substance of the relationship, in all of its factual richness, without employee classification tests as a mediating analytic step.⁵⁵55. Cf. New Prime Inc. v. Oliveira, 139 S. Ct. 532, 542 (2019) (“[A]s dominantly understood in 1925, a contract of employment did not necessarily imply the existence of an employer-employee or master-servant relationship.”) (emphasis omitted); Chamber of Com. v. City of Seattle, 426 F. Supp. 3d 786, 788 n.3 (W.D. Wash. 2019) (“Plaintiffs argue that the labor exemption applies only in the context of an employer-employee relationship. . . . [A] recent Supreme Court decision makes clear that, at the time the Clayton Act was written, even the narrower term ‘employment’ encompassed both master-servant relationships and independent contractors.” (citing New Prime, 139 S. Ct. at 542–44)).

Inviting courts faced with putative labor disputes to look at the economic relations between workers and management with fresh eyes would be a welcome development for otherwise-misclassified workers. There is a risk, however, of resuscitating a de facto, antitrust-specific classification test if courts parse the same set of factors in a similar way, and it would be unwise to bet on federal courts dramatically revising their general understanding of employment status.

So how should courts understand the wages/prices distinction, if not as common-law employee classification in a different guise? While it offered virtually no detail concerning the nature of a wage dispute, the First Circuit emphasized the Norris-LaGuardia Act was intended to navigate the “inherent tension between national antitrust policy, which seeks to maximize competition, and national labor policy, which encourages cooperation among workers to improve the conditions of employment.”⁵⁶56. Jinetes, 30 F.4th 306, 312 (1st Cir. 2002), cert. denied, 143 S. Ct. 631 (2023) (quoting H.A. Artists & Assocs., Inc. v. Actors’ Equity Ass’n, 451 U.S. 704, 713 (1981)). It does so by acknowledging that while “antitrust law [generally] forbids would-be competitors from colluding to increase prices . . . [w]hen the price is a laborer’s wage . . . a different set of rules apply. That must be so, lest antitrust law waylay ordinary collective bargaining.”⁵⁷57. Id. at 312. New Deal labor policy, in other words, was intended to carve out a space for workers to organize, and the scope of its coverage should reflect that purpose.

Eighty years ago, the Supreme Court faced a similar question: Were newsboys entitled to organize under the National Labor Relations Act, or, as the appeals court below had found, did the NLRA exclude common-law independent contractors? In NLRB v. Hearst Publications, the Court rejected the idea that the control test was appropriate for distinguishing a labor organization from an illegal cartel.⁵⁸58. NLRB v. Hearst Publ’ns, 322 U.S. 111, 120–121 (1944). According to the Court, in enacting the NLRA, “Congress had in mind a wider field than the narrow technical legal relation of ‘master and servant,’ as the common law had worked this out in all its variations, and at the same time a narrower one than the entire area of rendering service to others.”⁵⁹59. Id. at 124. Interpreting the category of covered employees in light of the purposes of the NLRA, the Hearst Court found that, because some workers classified as independent contractors under agency law face the same “[i]nequality of bargaining power in controversies over wages, hours and working conditions” as those classified as employees, and “when acting alone, may be as helpless in dealing with an employer, as dependent on his daily wage and as unable to leave the employ and to resist arbitrary and unfair treatment,”⁶⁰60. Id. at 127 (internal quotations omitted). the Board’s determination that they were covered employees was due judicial deference.

Hearst was overturned by the Taft-Hartley Act.⁶¹61. Labor Management Relations (Taft-Hartley) Act, 29 U.S.C. § 151; see also NLRB v. United Ins. Co., 390 U.S. 254, 256 (1968) (holding the use of “independent contractor” in the Taft-Hartley Act as intended “to have the Board and the courts apply general agency principles in distinguishing between employees and independent contractors under the Act”). While Taft-Hartley was specifically targeted at amending the NLRA to weaken unions, it did not touch the Norris-LaGuardia antitrust exemption, which draws its purpose from the same policy framework: The New Deal scheme of labor regulation was intended to remedy inequalities of bargaining power and to protect collective self-help by workers.⁶²62. 75 Cong. Rec. 5461, 5487 (1932) (statement of Rep. Charles Sparks); cf. Hiba Hafiz, Labor Antitrust’s Paradox, 86 U. Chi. L. Rev. 381, 386–87 (2019) (“The NLRA justified worker combinations as a countervailing power that, in the words of its sponsor, Senator Robert Wagner, ‘match[ed] the huge aggregates of modern capital.’”) (citing Senator Robert Wagner, The New Responsibilities of Organized Labor, Address to the New York State Federation of Labor Convention ¶ 5 (1928), reprinted in 70 Cong. Rec. 225, 227). Interpreting the labor-dispute exemption in light of labor policy, rather than the common law of agency, requires looking at the substance of the economic relation, including the extent to which it reflects inequality of bargaining power between workers and dominant firms. The Hearst Court drew on the preamble to the NLRA to interpret that statute’s purpose, but the Norris-LaGuardia Act’s stated policy aims were essentially the same: to ensure that independent contractors were “free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”⁶³63. 29 U.S.C. § 102.

Courts could, and perhaps should, adjudicate labor-dispute exemption cases by looking directly to the substance of the economic relation at issue, considering the purposes of New Deal labor law, rather than the common law of agency. And if the key to the labor-dispute exemption is the wages/prices distinction, antitrust doctrine may need to account for the economic context in which the economic relation is formed, including the market power on the other side.⁶⁴64. See generally Brian Callaci & Sandeep Vaheesan, Antitrust Remedies for Fissured Work, 108 Cornell L. Rev. Online 27 (2023) (arguing that antitrust law should prevent corporations from controlling the business decisions of distributors and suppliers); Sanjukta Paul, Antitrust as Allocator of Coordination Rights, 67 UCLA L. Rev. 378 (2020) (exploring antitrust law’s preference for coordination via vertical contracting, as opposed to horizontal, interfirm coordination). In Jinetes, the owners of the horses and the track enjoyed a monopoly over Puerto Rican horse racing and thus a monopsony over the relevant labor market,⁶⁵65. Jinetes, 30 F.4th 306, 311 (1st Cir. 2022), cert. denied, 143 S. Ct. 631 (2023). but the First Circuit did not address the relevance, if any, of the monopsony power of the plaintiffs. An analysis of unequal bargaining power could help make clear why the jockeys, who have no meaningful ability to bargain over their pay, should be considered as earning a wage rather than being paid a price: What makes a wage a wage, rather than a price for independently provided services, may not only be the capital investment or independence of the recipient, but also the market power of the payor.⁶⁶66. Analysis of market power already has a role in antitrust doctrine, albeit a limited one in recent decades. Courts consider the market power of defendants in a rule of reason analysis. See, e.g., Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 27–29 (1984) (finding a “tying” practice permissible in part due to the defendant’s lack of market power). Whether future courts will interpret the wages/prices distinction in light of an analysis of market power remains to be seen.

CONCLUSION

The racetrack and horse owners filed a petition for certiorari on October 4th, 2022, identifying the question presented as “Whether the statutory labor exemption from the operation of the antitrust laws, which exempts ‘labor dispute[s]’ that ‘concern[] terms or conditions of employment,’ encompasses concerted action by independent contractors that do not relate to an employer-employee relationship.”⁶⁷67. Petition for Writ of Certiorari at i, Jinetes, 30 F.4th 306 (No. 22-327).

The jockeys’ opposition brief emphasized, among other things, the public meaning of “employment” when the Clayton and Norris-LaGuardia Acts were passed, no doubt with an eye on the Court’s embrace of textualism and in hopes of convincing at least one more of the Court’s six conservative justices to follow Justice Gorsuch’s lead in New Prime.⁶⁸68. See Respondents’ Brief in Opposition at 18–20, Jinetes, 30 F.4th 306 (No. 22-327). While the jockeys construed the First Circuit’s decision as consistent with prior Supreme Court and federal appeals courts decisions⁶⁹69. See id. at 9–15. (as had the First Circuit), the owners portrayed the categorical exclusion of workers classified as independent contractors, where no “employer-employee relationship [i]s the matrix of the controversy,”⁷⁰70. Columbia River Packers Ass’n v. Hinton, 315 U.S. 143, 147 (1942). as clearly established by prior case law.⁷¹71. Reply Brief for Petitioners at 1–7, Jinetes, 30 F.4th 306 (No. 22-327).

If the Supreme Court agreed with the owners’ understanding of its prior decisions, it chose not to say so: on January 9th, 2023, the Court denied the petition for certiorari without explanation or noted dissent.⁷²72. See Confederación Hípica v. Confederación de Jinetes Puertorriqueños, 143 S. Ct. 631 (2023). At least within the First Circuit, workers classified as independent contractors now have the right to strike over wages and other terms and conditions of employment.

February 10, 2023

Olean Wholesale Grocery Cooperative, Inc. V. Bumble Bee Foods LLC

Jonathan L. Goldberg

Ninth Circuit Offers Guidance to Trial Courts in Evaluating Ancillary Predominance Issues for Purposes of Rule 23(b)(3)

Jonathan L. Goldberg

Recent Case: Olean Wholesale Grocery Cooperative, Inc. v. Bumble Bee Foods LLC, 31 F.4th 651 (9th Cir. 2022) (en banc)

The Ninth Circuit Court of Appeals recently held in an en banc ruling that district courts wield significant discretion when deciding whether to certify a class action containing potentially uninjured class members. The opinion rejected a “de minimis” rule, which, according to Defendants, other circuits adopted. The court properly focused on Rule 23’s broad text and the class mechanism’s core efficiency goals. However, the Ninth Circuit prematurely addressed the de minimis issue because its opinion reaffirmed the district court’s finding that each plaintiff was similarly situated. Still, in concluding Defendants failed to demonstrate a fatal dissimilarity within the class, the en banc panel effectively reasoned that opposition to predominance at class certification must attack evidence’s relevancy as to each class member rather than its sufficiency in proving the class claims.

INTRODUCTION

The Supreme Court recently confirmed that uninjured plaintiffs may not recover damages from class action judgments but left open questions of how that rule might affect a trial court’s class certification decision.²2. See TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2208, 2208 n.4 (2021) (holding Article III requires class members to have standing to recover damages but declining to answer the “distinct question whether every class member must demonstrate standing before a court certifies a class”). In Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC,³3. 31 F.4th 651 (9th Cir. 2022) (en banc). the Ninth Circuit provided crucial guidance to trial courts struggling to apply TransUnion’s holding.

Class action lawsuits depart from the usual rule that only named parties conduct litigation.⁴4. Califano v. Yamasaki, 442 U.S. 682, 700–01 (1979). Federal Rule of Civil Procedure 23 outlines the strict conditions a class must meet to ensure aggregate litigation proceeds fairly, both for absent class members and defendants, and advances judicial economy.⁵5. See Amgen Inc. v. Connecticut Ret. Plans & Tr. Funds, 568 U.S. 455, 470 (2013) (citing Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 107 (2009)) (confirming predominance tests whether a court can resolve dissimilarities among class members in a manner that is not “inefficient or unfair”). To recover damages for themselves and the absent class members they represent, putative class representatives usually certify their class under Rule 23(b)(3).⁶6. See Richard A. Nagareda, Robert G. Bone, Elizabeth Chamblee Burch & Patrick Wooley, The Law of Class Actions and Other Aggregate Litigation 274–75 (3d ed. 2020) (suggesting that plaintiffs are extremely unlikely to recover monetary damages through a (b)(2) class after Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011)). Rule 23(b)(3) demands that class litigation be superior to other adjudicatory methods and that common questions of law or fact predominate over individual questions.⁷7. Fed. R. Civ. P. 23(b)(3). Parties frequently target the predominance requirement to challenge motions for class certification.⁸8. See, e.g., Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) (class settlement); Halliburton Co. v. Erica P. John Fund, Inc. (Halliburton II), 573 U.S. 258 (2014) (securities fraud); Amgen, 568 U.S. at 466 (securities fraud); Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 454 (2016) (Fair Labor Standards Act). In short, predominance asks whether common questions of law or fact are both central to the litigation and more prevalent or important than individual ones.⁹9. Tyson Foods, 577 U.S. at 453–54 (2016) (“The predominance inquiry ‘asks whether the common, aggregation-enabling, issues in the case are more prevalent or important than the non-common, aggregation-defeating, individual issues’ [and whether] ‘one or more of the central issues in the action are common to the class and can be said to predominate . . . .’” (first quoting 2 W. Rubenstein, Newberg on Class Actions § 4:50 (5th ed. 2012); then quoting 7AA Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1778 (3d ed. 2005))).

The Olean defendants contended that the plaintiff class included more than a de minimis number of uninjured members, prompting many individual questions, preventing common issues from predominating, and automatically precluding certification.¹⁰10. A question is common because its answer resolves a central issue in each class member’s claim. Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31 F.4th 651, 663 (9th Cir. 2022) (en banc) (quoting Wal-Mart, 564 U.S. at 350). By contrast, an individual question requires different evidence to prove each class member’s claim. Id. (citing Tyson Foods, 577 U.S. at 453). Uninjured plaintiffs within a class may raise individual questions because a court must determine “which ones” are injured and “which ones” are not. See Tyson Foods, 577 U.S. at 464–66 (Roberts, C.J., concurring) (finding decertification appropriate where a district court cannot identify the uninjured plaintiffs within the class); cf. Olean, 31 F.4th at 681–82 & n.31 (discussing mini-trials to identify each plaintiff’s damages award). Defendants also argued the D.C.¹¹11. In re Rail Freight Fuel Surcharge Antitrust Litig. (Rail Freight II), 934 F.3d 619, 624–25 (D.C. Cir. 2019) (discussing a “six-percent upper limit” on the number of uninjured class members in a certified class). and First¹²12. See In re Asacol Antitrust Litig., 907 F.3d 42, 47, 51–58 (1st Cir. 2018) (intimating that 10% exceeds the de minimis boundary). Circuits already adopted a “de minimis” rule and urged the Ninth Circuit to hold similarly.¹³13. Defendants-Appellants’ Supplemental En Banc Brief at 19, 31 F.4th 651 (9th Cir. 2022) (No. 3:15-MD-026770-JLS-MDD), 2021 WL 4126353, at *19. Cf. Olean, 31 F.4th at 666 n.9 (9th Cir. 2022) (discussing the argument but not directly attributing it to defendants); id. at 692 (Lee, J., dissenting) (same). In rejecting a per se de minimis standard, the en banc court held that a district court is in the best position to determine whether individual questions, including those regarding class members’ injury, will overwhelm common ones.¹⁴14. Olean, 31 F.4th at 669. In other words, the district court’s decision to certify the class fell within the broad range of permissible conclusions that a class certification appeal’s abuse of discretion standard affords.¹⁵15. Id. (quoting Hung Lam v. City of San Jose, 869 F.3d 1077, 1084 (9th Cir. 2017) (quoting Kode v. Carlson, 596 F.3d 608, 612 (9th Cir. 2010))).

The court properly resolved an issue percolating in class action jurisprudence through careful attention to Rule 23’s text and the class mechanism’s core efficiency goals. Furthermore, the decision follows a broad trend—developing as judicial experience with class actions grows—of increasing deference towards trial courts at the class certification stage. Nevertheless, the en banc panel should never have reached the issue. The opinion’s logic renders the holding advisory by concluding each plaintiff could rely upon their expert’s report to prove class-wide antitrust impact—i.e., that defendants injured each and every class member by causing them to pay for tuna at supra-competitive prices. Still, the appellate tribunal faithfully applied Supreme Court precedent on a frequently confusing aspect of the predominance inquiry, carefully distinguishing between evidentiary issues of relevancy (whether there is a “fatal dissimilarity”) and sufficiency or persuasiveness (whether there is a “fatal similarity”).¹⁶16. See Nagareda, supra note 4, at 131 (arguing courts should address fatal dissimilarities between class members at certification and address fatal similarities, such as a failure of proof, at summary judgment).

I. BACKGROUND

A. The District Court’s Class Certification Order

Following a 2015 Department of Justice antitrust investigation, various plaintiffs (collectively “Tuna Purchasers”) filed suit against Bumble Bee, StarKist, Chicken of the Sea (“COSI”), and their parent corporations (collectively “Tuna Suppliers”), alleging the corporations conspired to fix tuna prices in violation of federal and state antitrust laws.¹⁷17. The Tuna Purchasers allege the Tuna Suppliers engaged in a price-fixing conspiracy from November 2010 to at least December 31, 2016 and further claim the conspiracy forced them to pay supra-competitive prices for the Tuna Suppliers’ products. Olean, 31 F.4th at 661–62. Soon thereafter, the Department of Justice (“DOJ”) entered notice of a pending investigation into the packaged tuna industry for similar violations of the antitrust laws.¹⁸18. Id. at 661; see In re Packaged Seafood Prods. Antitrust Litig., 332 F.R.D. 308, 317 (S.D. Cal. 2019) (“Shortly after the commencement of this action, the U.S. Department of Justice (‘DOJ’) noticed the Court of pending investigations of the Defendants. Since that time, Defendants and individual employees have pled guilty and the DOJ has entered multiple indictments.”), vacated and remanded sub nom. Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 993 F.3d 774 (9th Cir. 2021), on reh’g en banc, 31 F.4th 651 (9th Cir. 2022), and aff’d sub nom. Olean, 31 F.4th at 661. During the ongoing civil litigation, the DOJ filed multiple indictments alleging a criminal price-fixing conspiracy in the industry from around November 2011 to December 2013.¹⁹19. Olean, 31 F.4th at 661–62; see also In re Packaged Seafood Prod. Antitrust Litig., 332 F.R.D. at 317. Bumble Bee, StarKist, and three industry executives ultimately pled guilty to the conspiracy; a jury convicted Bumble Bee’s former CEO, and COSI cooperated with the DOJ, admitting to price fixing in exchange for leniency.²⁰20. Olean, 31 F.4th at 662. By the end of 2015, the Judicial Panel on Multidistrict Litigation consolidated the civil complaints in the Southern District of California.²¹21. In re Packaged Seafood Prods. Antitrust Litig., 332 F.R.D. at 316. Judge Janis Lynn Sammartino divided the Tuna Purchasers into four tracks: (1) plaintiffs who filed suit individually against the Tuna Suppliers (“DAPs”); (2) direct purchasers, such as nationwide retailors or regional grocery stores (“DPPs”); (3) indirect purchasers who bought bulk-sized products for prepared food or resale (“CFPs”); and (4) individual end purchasers (“EPPs”).²²22. Id. at 316–17. The DPPs and EPPs include plaintiffs who purchased packaged tuna between June 1, 2011 and July 1, 2015, but the CFPs include plaintiffs who purchased tuna products from June 2011 through December 2016. Olean, 31 F.4th at 662.

The latter three groups moved for class certification in 2018 under Rule 23(b)(3). The Tuna Suppliers opposed the motion, arguing individual questions predominated over common ones because the DPPs’ expert, Dr. Russell Mangum, could not demonstrate a common class-wide antitrust impact.²³23. Olean, 31 F.4th at 673. Each of the three plaintiff subclasses employed their own expert to establish antitrust impact through qualitative and quantitative analyses. Id. at 662. However, this Case Comment will focus on the DPPs’ class certification, the center of each opinion. Dr. Mangum constructed a multiple regression model to assess whether the price-fixing conspiracy subjected each DPP to an overcharge.²⁴24. Id. at 671. To do so, Dr. Mangum pooled the Tuna Suppliers’ actual sales transaction data during benchmark periods before and after the conspiracy, identified a number of variables that could affect the price of tuna—like product characteristics, input costs, consumer type, consumer preferences and demand, etc.—and recorded the model’s results.²⁵25. Id. The model showed “the DPPs paid 10.28 percent more for tuna during the conspiracy period than they did during the benchmark periods.”²⁶26. Id. To further support this finding, Dr. Mangum conducted four robustness checks,²⁷27. Dr. Mangum (1) evaluated the overcharge to each defendant, (2) changed the model to assess the overcharge for different products with different characteristics, (3) altered the model to evaluate overcharge by customer types, and (4) used the output of the pooled regression model to predict the but-for prices paid by the DPP class. Id. at 672. According to Dr. Mangum, each robustness check confirmed the conspiracy generated higher prices for all or nearly all DPPs. Id. and the final one indicated that 94.5 percent of the DPPs purchased at least one product at a supra-competitive rate.²⁸28. Id. To be clear, despite the regression’s result, Dr. Mangum concluded the Tuna Suppliers injured each DPP: The robustness check was one basis for a conclusion that rested on additional “correlation tests, the record evidence and the guilty pleas and admissions entered in [the] case.” See id. at 676.

The Tuna Suppliers’ rebuttal expert to the DPPs, Dr. John Johnson, advanced two areas of critique: (1) Dr. Mangum inappropriately pooled direct purchaser data for his model, papering over differences among class members, such as disparities in bargaining power or negotiating tactics;²⁹29. Dr. Johnson pointed to several empirics to support this argument. A Chow test, a commonly employed statistical tool to assess whether data can be pooled, counseled against data pooling. See id. at 673. Further, Dr. Mangum’s model could not find statistically significant results for twenty-eight percent of the direct purchaser class, so Dr. Johnson argued the plaintiffs could not rely on the model to demonstrate class-wide impact. Id. and (2) Dr. Mangum’s model contained various errors that undermined its validity, including the use of an improper cost index.³⁰30. First, Dr. Mangum’s model outputted false positives, including those who purchased tuna products from non-defendants (non-conspiring tuna producers). See id. at 674. Second, Dr. Mangum’s model did not match the time periods listed in the plaintiff’s complaint. Id. Third, Dr. Mangum used a cost index rather than the Tuna Suppliers’ actual accounting cost. Id. Further, the Tuna Suppliers argued Dr. Johnson’s superior report indicated around twenty-eight percent of the class was uninjured.³¹31. Id. at 680.

The district court certified the class after carefully evaluating Dr. Johnson’s critiques and Dr. Mangum’s rebuttal.³²32. Id. at 662, 675–76. First, the district court found Dr. Mangum’s pooled model to be acceptable. Dr. Mangum’s model included statistically insignificant results as to some direct purchasers because those class members completed too few transactions to provide significant results, but this data issue had no bearing on a direct purchaser’s ability to rely on the model as evidence of impact. Id. at 675. For instance, general evidence that the Tuna Suppliers inflated prices through their conspiracy supported the inference that all direct purchasers were similarly situated. See id. at 674. Second, while the court acknowledged the Chow Test should be taken seriously, its opinion reiterated Dr. Mangum’s assertions that Dr. Johnson designed the Chow Tests to fail by including too many coefficients and observations and concluded that Dr. Mangum’s testimony gave “persuasive reasons, grounded in economic theory, for why a pooled model [was] appropriate” despite the concerning Chow Test results. In re Packaged Seafood, 332 F.R.D. 308, 225 (S.D. Cal. 2019); see also id. at 325 n.9 (offering examples of “multiple courts [that] have addressed instances where a pooled regression model failed a Chow Test, yet still accepted those models”). The trial judge first found each plaintiff was similarly situated and, therefore, able to rely upon Dr. Mangum’s report as well as other evidence—i.e., guilty pleas, market characteristics, and record evidence—to prove a common antitrust impact.³³33. In re Packaged Seafood, 332 F.R.D. at 324. The court concluded that the Tuna Suppliers’ remaining criticisms were “serious and could be persuasive to a finder of fact” but ultimately “beyond the scope of” the certification motion because they merely attacked Dr. Mangum’s persuasiveness rather than his capability of establishing impact for each class member.³⁴34. Id. at 328. The district court still rejected Dr. Johnson’s additional critiques. First, Dr. Mangum included purchases from non-defendant tuna suppliers because the conspiracy had an “umbrella effect” that raised non-colluding tuna suppliers’ prices. Olean, 31 F.4th at 676. Second, Dr. Mangum’s choice to narrow the time frame added to the report’s credibility by improving its accuracy. Id. Third, the court accepted Dr. Mangum’s arguments that cost indexes were preferable for determining competitive market prices as well as his conclusion that defendant-specific costs confirmed the pooled model’s results in any event. Id. at 675–76.

B. The Ninth Circuit’s Three-Judge Panel

The Tuna Suppliers appealed, and the Ninth Circuit’s three-judge panel vacated and remanded. The circuit panel concluded each class member could rely upon Dr. Mangum’s model to establish antitrust impact.³⁵35. See Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 993 F.3d 774, 790 (9th Cir. 2021), reh’g en banc granted, 5 F.4th 950 (9th Cir. 2021), and on reh’g en banc, 31 F.4th 651 (9th Cir. 2022). However, the court found the trial judge abused its discretion in certifying the class without resolving the experts’ competing conclusions on the number of uninjured plaintiffs within the class.³⁶36. Id. at 793. Even though the issue of the experts’ persuasiveness overlaps with the merits of plaintiffs’ claims, the court held that more than a de minimis number of uninjured class members would raise too many individual questions and defeat predominance.³⁷37. Id. at 794. The court precedent analysis “suggest[s] that 5% to 6% constitutes the outer limits of a de minimis number.” Id. at 792 (quoting Rail Freight II, 934 F.3d 619, 624–25 (D.C. Cir. 2019). However, the panel insisted it did “not adopt a numerical or bright-line rule” but only held “that 28% would be out-of-bounds.” Id. at 793. As a result, the district court should have weighed the persuasiveness of each expert report, entered findings on the number of uninjured class members,³⁸38. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350–51 (2011) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982)) (holding that Rule 23 requires a party seeking class certification to affirmatively demonstrate compliance with the Rule, a standard that will frequently require courts to engage in a “rigorous analysis” at certification that overlaps with the merits of the moving party’s claims). and only have certified the class if it contained fewer than a de minimis number of uninjured plaintiffs. Judge Andrew D. Hurwitz broke from the panel. He concurred the trial court should have resolved the factual dispute relating to uninjured class members before certification but dissented from the panel’s decision to adopt a de minimis standard.³⁹39. Olean, 993 F.3d at 794 (Hurwitz, J., concurring in part and dissenting in part). According to Judge Hurwitz, predominance asks not about the number of uninjured class members but whether a district court may “economically” separate uninjured plaintiffs from the class, a determination best left to the trial court’s discretion.⁴⁰40. Id. at 794–95. After all, “Rule 23 certification is at bottom a trial management decision.”⁴¹41. Id. at 796.

C. The Ninth Circuit’s En Banc Resolution

The Ninth Circuit then vacated the panel’s decision⁴²42. Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 5 F.4th 950, 952 (9th Cir. 2021). and reheard the case en banc.⁴³43. Olean, 31 F.4th at 662. Writing for a 9-2 majority, Judge Sandra Segal Ikuta rejected the “argument that Rule 23 does not permit the certification of a class that potentially includes more than a de minimis number of uninjured class members.”⁴⁴44. Id. at 669. The panel conceded that “[w]hen individualized questions relate to the injury status of class members, Rule 23(b)(3) requires that the court determine whether individualized inquiries about such matters would predominate over common questions.”⁴⁵45. Id. at 668. But any numerical rule would go too far. First, the court analogized classes with uninjured plaintiffs to class actions that require individual proof of damages.⁴⁶46. Id. at 668–69. Both the Ninth Circuit⁴⁷47. See, e.g., Vaquero v. Ashley Furniture Indus., Inc., 824 F.3d 1150, 1155 (9th Cir. 2016) (“Our precedent is well settled on this point. . . . [T]he need for individualized findings as to the amount of damages does not defeat class certification.”); Blackie v. Barrack, 524 F.2d 891, 905 (9th Cir. 1975) (“The amount of damages is invariably an individual question and does not defeat class action treatment.”). and Supreme Court⁴⁸48. Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 453–54 (2016) (citing Wright & Miller, supra note 8, § 1778) (noting that individual questions like damages and affirmative defenses do not defeat predomination). permit district courts to certify classes despite the need for individualized damages assessments at trial, “a conclusion implicitly based on the determination that such individualized issues do not predominate over common ones.”⁴⁹49. Olean, 31 F.4th at 669. Second, the majority determined a de minimis rule to be inconsistent with Rule 23’s text, “which requires only that the district court determine after rigorous analysis whether the common question predominates over any individual questions, including individualized questions about injury or entitlement to damages.”⁵⁰50. Id. (citing Fed. R. Civ. P. 23(b)(3)). Rule 23(b)(3)’s general language points towards decisionmaking on a “case-by-case basis, rather than . . . a per se rule.”⁵¹51. Id. at 669 n.13. The court also rejected the dissent’s policy arguments as atextual. “[W]e are bound to apply Rule 23(b)(3) as written, regardless of policy preferences.” Id. Finally, the panel asserted that a district court “is in the best position to determine whether individualized questions” predominate over common ones.⁵²52. Id. at 669. The opinion abandoned the previous panel’s strong justifications for this position, stating only that the abuse of discretion standard permits district courts to rule within a “wide range of permissible outcomes.”⁵³53. Id. (quoting Hung Lam v. City of San Jose, 869 F.3d 1077, 1084 (9th Cir. 2017) (quoting Kode v. Carlson, 596 F.3d 608, 612 (9th Cir. 2010))). However, the en banc panel also noted the presence of uninjured class members may indicate the class is fatally overbroad, an issue a district court may resolve sua sponte with its inherent authority to manage the class action.⁵⁴54. See id. at 669 n.14 (“[A] court must consider whether the possible presence of uninjured class members means that the class definition is fatally overbroad.”); see also id. at 666 (“In such a case, the court may redefine the overbroad class to include only those members who can rely on the same body of common evidence to establish the common issue.”); Tobias Barrington Wolff, Discretion in Class Certification, 162 U. Pa. L. Rev. 1897, 1925 (2014) (“[T]he discretionary power that federal courts possess to reshape the boundaries and composition of the class is continuous with their power to decide whether to certify at all.”).

The court then addressed the “central questions on appeal[:] . . . whether the expert evidence presented by the DPPs is capable of resolving this issue ‘in one stroke;’ and whether this common question predominates over any individualized inquiry.”⁵⁵55. Olean, 31 F.4th at 670 (citation omitted). It found the district court did not abuse its discretion in concluding so.⁵⁶56. Id. at 670. The majority rigorously analyzed both Dr. Mangum’s and Dr. Johnson’s reports and the district court’s handling of the expert’s disagreements.⁵⁷57. Id. at 670–77. The en banc panel held that the district court appropriately addressed Dr. Johnson’s arguments and considered unrebutted record evidence, such as prior guilty pleas.⁵⁸58. Id. at 676. For more detail on the arguments made by both experts, see supra notes 26–33 and accompanying text. The trial court’s recognition that Dr. Johnson’s arguments may prove persuasive at trial did not detract from its ultimate conclusion that “Dr. Mangum’s evidence was capable of showing class-wide impact.”⁵⁹59. Id. at 676. At bottom, “‘each class member could have relied on [the plaintiffs’ evidence] to establish liability if he or she had brought an individual action,’ and the evidence ‘could have sustained a reasonable jury finding’ on the merits of a common question.’”⁶⁰60. Id. at 667 (quoting Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 455 (2016)) (alterations in original).

The court then rejected the Tuna Suppliers’ primary arguments. Their main argument was that the regression model used averaging assumptions to “paper over” or mask the individual differences in class members’ bargaining power and negotiation tactics.⁶¹61. Id. at 677. The court affirmed that regressions models using averaging assumptions are not inherently suspect but rather a commonly used econometric tool.⁶²62. Id. Then, the majority rejected the Tuna Suppliers’ attempt to establish a fatal dissimilarity between Plaintiffs. Even if some DPPs negotiated their tuna prices with greater bargaining power than that of their peers, a conspiracy would logically and plausibly impact all purchasers by inflating the baseline for price negotiations.⁶³63. Id. at 677–78 (quoting In re Urethane Antitrust Litig., 768 F.3d 1245, 1254–55 (10th Cir. 2014)). The court noted Dr. Mangum concluded the largest retailers—those that should have the most bargaining power, such as Wal-Mart—still paid supracompetitive prices.⁶⁴64. Id. at 678. At most, the Tuna Suppliers’ argument suggested DPPs have different damages. But, “[w]hile individualized differences among the overcharges imposed on each purchaser may require a court to determine damages on an individualized basis, . . . such a task would not undermine the regression model’s ability to provide evidence of common impact.”⁶⁵65. Id. at 679. The majority reiterated that individualized damages do not threaten predominance. Id. With respect to impact, all DPPs were similarly situated.

Finally, the court dismissed the Tuna Suppliers’ complaint that the district court refused to resolve the parties’ dispute on the number of uninjured class members. The majority first clarified the Tuna Suppliers’ argument was premised on a misreading of Dr. Johnson’s report.⁶⁶66. Id. at 680. The Tuna Suppliers read Dr. Johnson’s report to suggest twenty-eight percent of the DPP class was uninjured. Id. However, Dr. Johnson’s test was only an attempt to undermine the confidence in Dr. Mangum’s model because it did not produce statistically significant results. Id. The court held the statistic did not support the Tuna Suppliers’ underlying claim. Id. The district court resolved this dispute as well. Id. at 681 (“[T]he district court determined that Dr. Mangum’s pooled regression model was capable of showing that the DPP class members suffered antitrust impact on a class-wide basis, notwithstanding Dr. Johnson’s critique.”). Then, the opinion confirmed neither expert’s report raised individual inquiries into the class members’ injuries. The trial court already concluded each DPP’s bargaining power was immaterial to a finding of common price impact, and the Tuna Suppliers provided no other factual or legal grounds to distinguish between individual class members.⁶⁷67. Id. at 681 (“The district court fulfilled its obligation to resolve the disputes raised by the parties in order to satisfy itself that the evidence proves the prerequisites for Rule 23(b)(3), which is that the evidence was capable of showing that the DPPs suffered antitrust impact on a class-wide basis.”); see also Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 622–23 (1997) (“The predominance requirement . . . trains on the legal or factual questions that qualify each class member’s case as a genuine controversy . . . .”). Thus, each class member was similarly situated. In other words, evidence relevant to one class member would be relevant to them all. The Tuna Suppliers’ remaining arguments simply attacked the expert report’s persuasiveness, a determination for the jury at trial.⁶⁸68. Olean, 31 F.4th at 681.

If the jury found that Dr. Mangum’s model was reliable, then the DPPs would have succeeded in showing antitrust impact on a class-wide basis, an element of their antitrust claim. On the other hand, if the jury were persuaded by Dr. Johnson’s critique, the jury could conclude that the DPPs had failed to prove antitrust impact on a class-wide basis.⁶⁹69. Id.

Judge Kenneth K. Lee dissented.⁷⁰70. The majority’s opinion briefly addressed the CFP and EPP classes in its conclusion. The en banc panel held the district court did not abuse its discretion in certifying both classes. Id. He first stressed the importance of a rigorous analysis at class certification to prevent in terrorem settlements.⁷¹71. Id. at 691 (Lee, J., dissenting) (“‘[W]hen damages allegedly owed to tens of thousands of potential claimants are aggregated and decided at once, the risk of an error will often become unacceptable. Faced with even a small chance of devastating loss, defendants will be pressured into settling questionable claims.’” (quoting AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 350 (2011))). Next, he argued the district court did not resolve the dueling experts’ opinions on the presence of uninjured class member, asserting class certification demands the moving party prove Rule 23’s prerequisites by a preponderance of the evidence after a rigorous analysis.⁷²72. Id. at 687–88. The dissent took issue with the majority’s attempt to “wave[] away” the differences in DPPs’ “negotiating power,” which would have permitted certain retailers to extract rebates or promotional concessions and thereby push tuna prices below competitive levels.⁷³73. Id. at 690. At the very least, according to the dissent, the “only way” to “find out if Wal-Mart and other major retailers suffered any injury” would be to conduct a “highly individualized analys[is]” that defeats predominance.⁷⁴74. Id. Finally, the dissent stressed that the court’s rejection of a de minimis rule would generate a circuit split.⁷⁵75. Id. at 691. However, the majority denies the creation of a circuit split. Id. at 669 n.13 (arguing neither case adopted a per se rule but held that based on the particular facts in those disputes, the “need to identify uninjured class members” would “render an adjudication unmanageable” (quoting In re Asacol Antitrust Litig., 907 F.3d 42, 53–54 (1st Cir. 2018))).

According to the dissent, both the D.C. and First Circuits settled on a de minimis rule. The D.C. Circuit stated “5% to 6% constitutes the outer limits of a de minimis number” of uninjured class members,⁷⁶76. Id. at 692 (quoting In re Rail Freight Fuel Surcharge Antitrust Litig. (Rail Freight II), 934 F.3d 619, 625 (D.C. Cir. 2019)). and the “First Circuit suggested that ‘around 10%’ of uninjured class members marks the de minimis border.”⁷⁷77. Id. (quoting Asacol, 907 F.3d at 47). But, the Ninth Circuit majority properly denied the creation of a circuit split.⁷⁸78. Id. at 699 n.13. Both sister circuits defined de minimis “in functional terms”⁷⁹79. Asacol, 907 F.3d at 54 (quoting In re Nexium Antitrust Litig., 777 F.3d 9, 30 (1st Cir. 2015)). and concluded that the need to identify uninjured class members precluded predominance based on the “nuanced”⁸⁰80. Rail Freight II, 934 F.3d at 625. and “particular facts of the cases before them.”⁸¹81. Olean, 31 F.4th at 699 n.13. While the D.C. and First Circuits contemplated per se boundaries, their opinions ultimately hinged on whether the trial court could employ a “mechanism that can manageably remove uninjured persons from the class in a manner that protects the parties’ rights.”⁸²82. Asacol, 907 F.3d at 54; see Rail Freight II, 934 F.3d at 625 (holding the district court did not abuse its discretion in denying class certification where the plaintiffs “proposed no ‘further way’—short of full-blown, individual trials—‘to reduce this number and segregate the uninjured from the truly injured’” (citation omitted)); see also Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 462 (2016) (Roberts, C.J., concurring) (suggesting the class jury verdict should not stand if the district court cannot “fashion a method for awarding damages only to those class members who suffered an actual injury”). Thus, the en banc panel’s focus on discretion largely accorded with their sister circuits’ case law.

III. IMPLICATIONS OF THE RULING

A. Predominance as Efficient Aggregation

In rejecting the de minimis standard, the Ninth Circuit adhered to Rule 23’s broad textual commands to advance the class mechanism’s driving goal of judicial economy.⁸³83. See Samuel Issacharoff, Rule 23 and the Triumph of Experience, 84 Duke L.J. 161, 168 (2021) (arguing a “simple ‘light touch’ textual reading shows that the words [of Rule 23] point to concerns about the overall administration of justice, measured in terms of the substantive results of aggregate litigation rather than the nature of the rights-holder”). Rule 23(b)(3) asks whether common questions predominate over individual ones, making no statement on specific characteristics⁸⁴84. Compare Fed. R. Civ. P. 23(b)(3) (defining predominance generally), with id. 23(b)(3)(A)–(D) (detailing the four factors courts must consult to conclude a class action is superior to other adjudicatory methods). that influence such an analysis.⁸⁵85. Standard canons of statutory construction counsel against limiting general language. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 101 (2012) (“Without some indication to the contrary, general words . . . are to be accorded their full and fair scope. They are not to be arbitrarily limited.”). Without specific guidance, the Supreme Court has been hesitant to adopt hard rules based on general language.⁸⁶86. See, e.g., Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997) (noting that while the Advisory Committee for Rule 23’s 1966 revision cautioned mass accidents are “ordinarily not appropriate” for class litigation, “the text of the Rule does not categorically exclude mass tort cases from class certification, and District Courts, since the late 1970’s, have been certifying such cases in increasing number”); Goldman Sachs Grp., Inc. v. Ark. Tchr. Ret. Sys., 141 S. Ct. 1951, 1960 (2021) (addressing “whether the generic nature of a misrepresentation is relevant to price impact” findings at class certification and concluding “courts ‘should be open to all probative evidence on that question—qualitative as well as quantitative—aided by a good dose of common sense’” (citation omitted)). For instance, in Tyson Foods v. Bouaphakeo, the Supreme Court rejected a “broad” and “categorical” rule forbidding plaintiffs from using representative evidence to establish predominance, holding such a rule would make “little sense” because evidence’s permissibility turns on a specific case’s cause of action.⁸⁷87. Tyson Foods, 577 U.S. at 454–55. Rule 23’s purposefully general language⁸⁸88. See Samuel Issacharoff & Peter Zimroth, An Oral History of Rule 23: An Interview with Professor Arthur Miller, 74 N.Y.U. Ann. Surv. Am. L. 105, 117 (2018) (quoting Professor Miller, noting predominance and superiority were meant to ensure (b)(3) classes were a “true efficiency economy win,” but also confirming those “[w]ords . . . were like silly putty that could be molded in any way by a judge in a particular context”). affords trial courts ample latitude to certify, or decline to certify, class proposals based on whether aggregation may materially advance the litigation before them in a fair and efficient manner.⁸⁹89. See Amchem, 521 U.S. at 615 (stating that predominance and superiority were added for efficiency and fairness, among other considerations); Fed. R. Civ. P. 23 advisory committee’s note to 1966 amendment (“It is only where this predominance exists that economies can be achieved by means of the class-action device.”); see also Am. L. Inst., Principles of the Law of Aggregate Litigation § 2.02(a)(1) (2010) (authorizing aggregate treatment where such adjudication would “materially advance” litigation “in a manner . . . so as to generate significant judicial efficiencies”). Though the dissent attempted to interpret a de minimis rule as enforcing that policy, the dissenting judges provided no assurance such a rule best economizes judicial procedure.⁹⁰90. Olean, 31 F.4th at 692 (Lee, J., dissenting) (claiming that “allowing more than a de minimis number of uninjured class members tilts the playing field in favor of plaintiffs”). Instead, the dissent erred on the side of preventing “oversized classes,”⁹¹91. Id. but the Rules Committee added (b)(3) certification in the 1966 revision precisely to help vindicate the rights of people “who individually would be without effective strength to bring their opponents into court at all.”⁹²92. Amchem, 521 U.S. at 617 (quoting Benjamin Kaplan, A Prefatory Note, 10 B.C. Ind. & Com. L. Rev. 497, 497 (1969)) (discussing how class actions can be a tool for those with smaller damages claims to still obtain relief). The majority’s critical move is to train the predominance inquiry on how a judge will resolve the issue of uninjured class members at trial. After all, “Rule 23 certification is at bottom a trial management decision; it simply allows the class litigation to continue under the district court’s ongoing supervision.”⁹³93. Olean Wholesale Grocery Coop. v. Bumble Bee Foods LLC, 993 F.3d 774, 796 (9th Cir. 2021) (Hurwitz, J., concurring in part and dissenting in part), aff’d on reh’g en banc, 31 F.4th 651 (9th Cir. 2022). So long as a district court can fairly and efficiently “winnow out” a “non-injured subset of class members,”⁹⁴94. Olean, 31 F.4th at 669. common questions should predominate, even if the number of uninjured plaintiffs or percentage of the class appears to be more than de minimis.⁹⁵95. The Supreme Court recently concluded that 6,332 class members, in a class of 8,185 plaintiffs, did not suffer an injury in fact. TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2214 (2021). The Court remanded on the issue of typicality but made no mention of predominance. Id. Even though the Court concluded most of the class was uninjured, neither the Supreme Court nor the district court had a difficult time separating class members based on the injury-defining characteristic of whether TransUnion provided their tainted credit reports to third parties.

B. Discretion and Judicial Experience

Additionally, Olean solidifies the dominance of discretion at class certification, resulting from an accumulation of judicial experience with complex multi-district and class adjudications. As Professors Samuel Issacharoff and Arthur R. Miller explain, the past decade has seen judges certify classes that “would have given the Rules adopters grave pause.”⁹⁶96. See Issacharoff, supra note 82, at 163 (citing Issacharoff & Zimroth, supra note 87, at 125) (recounting his interview with Professor Arthur R. Miller and discussing how judicial experience influenced the settlement class’s development, culminating with In re National Football League Players Concussion Injury Litigation, 821 F.3d 410 (3d Cir. 2016)). Circuit courts, and even specific judges, that once viewed novel class proposals with skepticism abandoned their previous positions to embrace efficient aggregation. The rise of Rule 23(c)(4) issue classes provides an apt example. In the 1990s, a series of decisions erected barriers to certifying issue classes. Judge Richard Posner, writing for a Seventh Circuit panel in In re Rhone–Poulenc Rorer Inc.,⁹⁷97. 51 F.3d 1293 (7th Cir. 1995). rejected an attempt to certify a class only on a negligence element because the “desire to experiment with an innovative procedure” would possibly infringe upon the defendants’ Seventh Amendment rights to avoid re-examination of a jury’s decision.⁹⁸98. Id. at 1297, 1303. Similarly, the Fifth Circuit held a district court may not certify an issue class unless the “cause of action, as a whole, . . . satisf[ies] the predominance requirement.”⁹⁹99. Castano v. Am. Tobacco Co., 84 F.3d 734, 745 n.21 (5th Cir. 1996). But these barriers did not last long. Seven years after Rhone–Poulenc, Judge Posner upheld an issue class, stating issue class treatment “is appropriate and is permitted by Rule 23 when the judicial economy from consolidation of separate claims outweighs any concern with possible inaccuracies from their being lumped together in a single proceeding.”¹⁰⁰100. Mejdrech v. Met-Coil Sys. Corp., 319 F.3d 910, 911 (7th Cir. 2003). Posner made no mention of the Seventh Amendment but focused entirely on efficiency and accuracy. The Fifth Circuit also moved past the narrow view of issue class certification.¹⁰¹101. See Steering Comm. v. Exxon Mobil Corp., 461 F.3d 598, 603 (5th Cir. 2006) (noting trial bifurcation might eliminate “the obstacles preventing a finding of predominance”). The majority of circuit courts now take the broad view¹⁰²102. Russell v. Educ. Comm’n for Foreign Med. Graduates, 15 F.4th 259, 273–74, 273 n.6 (3d Cir. 2021) (writing that “the Second, Fourth, Sixth, Seventh, and Ninth Circuits” have adopted this view and that “[u]nder the broad view, courts apply the Rule 23(b)(3) predominance and superiority prongs after common issues have been identified for class treatment”), cert. denied, 142 S. Ct. 2706 (2022). and have eliminated the strict barriers that once completely precluded issue certification, reducing them into pieces of a multi-factor test that outline a district court’s wide discretion.¹⁰³103. Id. at 268 (listing nine factors that indicate when issue certification may be appropriate, including whether bifurcated proceedings risk re-examining a jury’s initial findings) cf. Issacharoff, supra note 82, at 176 (arguing the Third Circuit’s prior experience with class settlements allowed them to “give independent weight to the need for closure” in future cases). But, unlike the issue class’s story, the Ninth Circuit correctly resolved the dilemma of uninjured class members upon first impression. Rather than calcify class adjudication through a strict reading of Rule 23, the en banc panel left the decision to the district court’s sound discretion, acknowledging that the trial judge is in the best position to expend judicial resources efficiently and fairly.¹⁰⁴104. Olean Wholesale Grocery Coop. v. Bumble Bee Foods LLC, 31 F.4th 651, 669 (9th Cir. 2022) (en banc).

C. Predominance as Relevance

1. The Ninth Circuit’s Unnecessary Holding

Nevertheless, the Ninth Circuit should never have addressed this legal issue because the court’s conclusions were “clearly unnecessary to its resolution of the case, d[id] not affect its outcome in any manner, and constitute[d] an advisory opinion.”¹⁰⁵105. Spears v. Stewart, 283 F.3d 992, 998–99 (9th Cir. 2002) (Reinhardt, J., dissenting from denial of rehearing en banc) The Court has shared similar concerns. See Loc. 144 Nursing Home Pension Fund v. Demisay, 508 U.S. 581, 592 n.5 (1993) (describing dicta as language “uninvited, unargued, and unnecessary to the Court’s holdings”). Simply put, if a district court understood each class member to be similarly situated, it would not need to confront questions of how to handle a class containing both injured and uninjured class members.¹⁰⁶106. See Olean, 31 F.4th at 681 (noting that a jury’s findings as to the persuasiveness of Dr. Mangum’s report would not give rise to any individual issues regarding a class member’s injury status). Even here, the district court considered whether a de minimis standard would impact the case but did not develop the issue because it concluded Dr. Mangum’s report could establish class-wide impact.¹⁰⁷107. See In re Packaged Seafood Prods. Antitrust Litig., 332 F.R.D. 308, 323–24, 329 (S.D. Cal. 2019), vacated and remanded sub nom. Olean Wholesale Grocery Coop. v. Bumble Bee Foods LLC, 993 F.3d 774 (9th Cir. 2021), aff’d on reh’g en banc, 31 F.4th 651 (9th Cir. 2022). The en banc panel unequivocally affirmed that conclusion.¹⁰⁸108. Olean, 31 F.4th at 685. And, the Ninth Circuit’s refusal to resolve the related issue of whether each class member must prove Article III standing at certification renders the decision to address the de minimis question paradoxical.¹⁰⁹109. See id. at 682 (“We need not consider the Tuna Suppliers’ argument that the possible presence of a large number of uninjured class members raises an Article III issue, because . . . the district court concluded that the DPPs’ evidence was capable of establishing antitrust impact on a class-wide basis.”). It ultimately appears the court “reached out to address a novel, complex, and important issue in an advisory opinion.”¹¹⁰110. Spears, 283 F.3d at 1004.

2. Distinguishing Between Evidence’s Relevance and Sufficiency to Satisfy Predominance

Still, in addressing the predominance issues related to the parties’ experts, the Ninth Circuit navigated a confusing inquiry: whether the plaintiff must preliminarily prove antitrust impact or simply demonstrate that antitrust impact is capable of class-wide proof.¹¹¹111. See Nagareda et al., supra note 5, at 334 (discussing the thin line between the two different conceptions of the moving party’s burden at class certification). The Supreme Court in Amgen Inc. v. Connecticut Retirement Plans and Trust Funds clearly takes the latter side: Moving parties need not establish that they “will win the fray” but only that the class is cohesive enough to prompt predominating common questions of law or fact.¹¹²112. 568 U.S. 455, 460 (2013). Merits questions may overlap with the inquiry into whether the class is cohesive. In that situation, courts must engage in the trickier determination of which ancillary issues—for instance, factual questions about the nature of a product market¹¹³113. See, e.g., In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 316, 325 (3d Cir. 2008) (remanding and requiring the district court to resolve experts’ disputes as to hydrogen peroxide’s fungibility in the relevant market before certifying that plaintiffs can prove antitrust impact through common evidence). or a defendant’s particular business practices¹¹⁴114. See, e.g., Ellis v. Costco Wholesale Corp., 657 F.3d 970, 983–84 (9th Cir. 2011) (mandating the district court resolve factual disputes regarding whether local or upper management promoted individuals because plaintiffs would be unlikely to establish discrimination with common evidence if local managers promoted employees).—bear on the predominance inquiry.¹¹⁵115. Courts routinely engage in similar determinations when they address preliminary evidentiary questions of conditional relevance. See Fed. R. Evid. 104(a)–(b) (directing the court to “decide any preliminary question about whether . . . evidence is admissible”). Courts must first decide if the proffered evidence’s relevance “depends on whether a fact exists” and, if so, preliminarily rule on the existence of that fact. Id. 104(b). Similarly at certification, a trial court must determine if the putative class’s cohesion depends on whether a fact exists and, if so, resolve the factual question by a preponderance of the evidence. See Olean Wholesale Grocery Coop. v. Bumble Bee Foods LLC, 31 F.4th 651, 665 (9th Cir. 2022) (en banc) (holding “plaintiffs must prove the facts necessary” to satisfy Rule 23’s prerequisites “by a preponderance of the evidence”); Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351–52 (2011) (directing lower courts to “resolve preliminary matters” at class certification); see also Jonah B. Gelbach, The Triangle of Law and the Role of Evidence in Class Action Litigation, 165 U. Pa. L. Rev. 1807, 1820 & n.62 (2017) (arguing courts at class certification should resolve disputes over “auxiliary assumption[s] necessary for counterfactual evidence to be probative” for each class member through Rule 104’s framework).

Olean presents such a case. To the dissent, every attack on Dr. Mangum’s report required the court’s attention because a jury might have believed Dr. Johnson’s argument that twenty-eight percent of the class was uninjured. But, the Ninth Circuit effectively distinguished between the Tuna Suppliers’ arguments that raised “fatal dissimilarit[ies]” and those that illustrated “fatal similarit[ies].”¹¹⁶116. Amgen, 568 U.S. at 470 (citing Nagareda, supra note 4, at 107). Fatal dissimilarities are those differences between the class members that “make use of the class-action device inefficient or unfair” because each class member may require individualized proof:¹¹⁷117. Id. Evidence would not be relevant to each class member.¹¹⁸118. Compare Wal-Mart, 564 U.S. at 356–57 (decertifying a class action because 1.5 million plaintiffs across thousands of stores managed by tens of thousands of managers were not similar enough for statistical regressions or sampling evidence to prove Wal-Mart discriminated against each plaintiff), with Amgen, 568 U.S. at 467 (holding proof of materiality is not needed at the certification stage because it is objective and applies to each member of the class), and Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 459 (2016) (holding each plaintiff could rely upon a single study to recover under the Fair Labor Standards Act because “each employee worked in the same facility, did similar work, and was paid under the same policy”). The Tuna Suppliers only argued some plaintiffs were uninjured, and therefore dissimilar, because of their stronger bargaining power, but Dr. Mangum, the district court, and the Ninth Circuit adequately addressed and resolved the dispute on that ancillary issue.¹¹⁹119. See supra notes 60–64 and accompanying text (explaining how the Ninth Circuit concluded each plaintiff could establish antitrust injury with Dr. Mangum’s evidence). In contrast, the district court refused to enter any findings on many of Dr. Johnson’s general critiques—e.g., Dr. Mangum used inferior cost data—because those addressed a similarity: Evidence would not be sufficient for every class member.¹²⁰120. See In re Asacol Antitrust Litig., 907 F.3d 42, 54 (1st Cir. 2018) (“[P]laintiffs point to no such substantive law that would make an opinion that ninety percent of class members were injured both admissible and sufficient to prove that any given individual class member was injured.”). As the en banc aptly held, such a debate is best reserved for summary judgment and, ultimately, a jury.¹²¹121. Olean, 31 F.4th at 681.

CONCLUSION

The Ninth Circuit’s decision to reject a de minimis standard for uninjured class members is another step in acknowledging Rule 23’s core purpose of and the trial court’s superior position in efficiently managing complex cases and controversies. The de minimis standard is a proxy for Rule 23’s textual commands at best and a hindrance to district courts saddled with overwhelming dockets and weary plaintiffs at worst. Though the en banc panel should not have reached the de minimis question, its opinion still provided important guidance for district courts struggling to evaluate ancillary predominance issues. By properly distinguishing between disputes over dissimilarities—relevancy issues a court must address at certification—and similarities—sufficiency debates best reserved for summary judgment or a jury—the court ensured Rule 23 continues to serve as an important tool to redress democratic theft and preserve increasingly strained judicial resources.

2022

November 10, 2022

In re Grand Jury

Ninth Circuit Offers Guidance on Privilege Test for Dual-Purpose Communications

Recent Case: In re Grand Jury, 23 F.4th 1088 (9th Cir. 2021)

The Ninth Circuit Court of Appeals recently held that dual-purpose communications, or communications made with more than one purpose, must satisfy the “primary purpose” test in order for privilege properly to attach. Yet in 2014, the D.C. Circuit adopted a different test for dual purpose communications, asking whether “a”—not “the”—primary purpose of the communication is to give or receive legal advice. The Ninth Circuit did not explicitly reject the logic of the D.C. Circuit, and instead declined the opportunity to draw the precise contours of the privilege standard as applied to dual purpose communications. Looking forward, it is likely that other circuits may grapple with the proper inquiry for privilege and the logic of the D.C. Circuit’s standard.

INTRODUCTION

To what degree should attorney-client privilege protect dual-purpose communications? As businesses grow in size and complexity, their attorneys often serve as both lawyers and businesspersons. This phenomenon has given rise to dual-purpose communications, or communications with “more than one purpose.”³3. In re Grand Jury, 23 F.4th 1088, 1091 (9th Cir. 2021) (referring to dual-purpose tax documents in United States v. Sanmina Corp., 968 F.3d 1107, 1118 (9th Cir. 2020)). These dual-purpose communications have proved slippery for courts to fit into existing privilege jurisprudence.⁴4. See, e.g., Geoffrey C. Hazard, Jr., W. William Hodes & Peter R. Jarvis, Law of Lawyering 2022 Supplement § 10.07.8 (Wolters Kluwer 4th ed. 2021–22) (“One common problem that arises, most often when privilege claims are made by in-house counsel, is whether particular communications were made in connection with business rather than legal advice.”). The Ninth Circuit recently confronted an intra-circuit split on the proper standard for assessing privilege claims for dual-purpose communications. The court squarely rejected a broad test in favor of a narrower inquiry.⁵5. See In re Grand Jury, 23 F.4th at 1094 (“[W]e reject Appellants’ invitation to extend the ‘because of’ test to the attorney-client privilege context, and hold that the ‘primary purpose’ test applies to dual-purpose communications.”). Some district courts hewed to the more focused “primary purpose” test, which looked to the primary reason of a communication.⁶6. See id. at 1091 (“Under the ‘primary purpose’ test, courts look at whether the primary purpose of the document is to give or receive legal advice, as opposed to business or tax advice.”) (citing In re County of Erie, 473 F.3d 413, 420 (2d Cir. 2007)). Other district courts assessed claims of privilege under the broader “because of” standard, which inquired into the causal connection animating the creation of a document.⁷7. Id. at 1092. The “because of” test, which applies to the work product doctrine, “‘does not consider whether litigation was a primary or secondary motive behind the creation of a document.’ It instead ‘considers the totality of the circumstances and affords protection when it can fairly be said that the document was created because of anticipated litigation.’”⁸8. Id. (citation omitted). Thus, the “because of” inquiry is much broader than the primary purpose test.⁹9. Id.

The Ninth Circuit determined that the “primary purpose” test governs, underscoring the distinction between work product and attorney-client privilege.¹⁰10. Id. at 1092 (“We hold that the primary purpose test applies to attorney-client privilege claims for dual-purpose communications.”). In arriving at its conclusion, the court distinguished work product and attorney-client privilege in part by exploring the goals for which each privilege is tailored. It noted that “the work-product doctrine upholds the fairness of the adversarial process by allowing litigators to creatively develop legal theories and strategies—without their adversaries invoking the discovery process to pry into the litigators’ minds and free-ride off them.” Id. at 1093 (citing Allen v. Chi. Transit Auth., 198 F.R.D. 495, 500 (N.D. Ill. 2001)). On the other hand, attorney-client privilege is not meant to address the adversarial process but rather “encourages ‘full and frank communication between attorneys and their clients.’” Id. at 1093 (citing Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)). However, although the court rejected the “because of” test for attorney-client privilege, it punted on the precise standard¹¹11. The court declined the opportunity to adopt the “a primary standard” test for attorney-client privilege with respect to dual-purpose communications. As the court explained by reference to In re Kellogg Brown & Root, Inc., 756 F.3d 754 (D.C. Cir. 2014), the “a primary purpose” test asks whether “obtaining or providing legal advice [was] a primary purpose of the communication, meaning one of the significant purposes of the communication?” Id. at 1094. The court therefore left “[o]pen [w]hether the ‘[a] [p]rimary [p]urpose [t]est [s]hould [a]pply.” Id. On the other hand, “the primary purpose” inquiry asks the court to identify the “‘predominant’ purpose” of the communication. Id. to assess dual-purpose communications—leaving businesses in the dark as to which documents may properly be withheld under a privilege assertion.

I. BACKGROUND

Attorney-client privilege protects certain communications between a client and her lawyer—specifically, communications in which the client seeks legal advice—from compelled disclosure in the course of litigation.¹²12. See, e.g., United States v. Samnina Corp., 968 F.3d 1107, 1116 (9th Cir. 2020) (“The attorney-client privilege protects confidential communications between attorneys and clients, which are made for the purpose of giving legal advice.”) (citing Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)); Hazard, Hodes, & Jarvis, supra note 2, § 10.07.8 (“In order for attorney-client privilege to apply, the communication between attorney and client (or their respective representatives), must be in aid of the attorney’s provision of legal advice to the client—it must be about a legal matter, in other words.”). In federal courts, Rule 501 of the Federal Rules of Evidence¹³13. Rule 501 requires that common law determines assertions of privilege unless the U.S. Constitution, a federal statute, or rules promulgated by the Supreme Court dictate otherwise. See Fed. R. Evid. 501. However, “in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.” Id. cognizes the privilege that was developed under federal common law.¹⁴14. Ellen S. Pogdor & Jerold H. Israel, White Collar Crime in a Nutshell 387 (4th ed. 2009). In the Ninth Circuit, the attorney-client privilege is articulated by a functionally equivalent “eight-part test: (1) Where legal advice . . . is sought (2) from a professional legal advisor . . . , (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are . . . protected (7) from disclosure . . . , (8) unless the protection be waived.” Sanmina Corp., 968 F.3d at 1116 (citing United States v. Graf, 610 F.3d 1148, 1156 (9th Cir. 2010)). In order to invoke the privilege successfully and shield a communication from disclosure, one generally must demonstrate: “(1) a communication, (2) that was made by the client to a lawyer, (3) that was made in confidence, and (4) that was made for the purpose of obtaining professional legal advice (or services relating thereto).”¹⁵15. Pogdor & Israel, supra note 12, at 389. Generally, those communications that satisfy all four elements may be withheld from compelled disclosure on the ground that the privilege cloaks the communications in protection.¹⁶16. See id. at 389–90 (noting that the privilege “block[s] the disclosure of the protected communications . . .”).

On the other hand, work product privilege protects disclosure of documents prepared by an attorney in “anticipation of litigation.”¹⁷17. See id. at 426. Originally articulated in the seminal Supreme Court case Hickman v. Taylor,¹⁸18. 329 U.S. 495 (1947). work product privilege trains attorneys’ and the court’s perspective on the attorney’s actions in the face of litigation (or the threat of litigation).¹⁹19. See Pogdor & Israel, supra note 12, at 427–29 (establishing Hickman standards and describing Federal Rule 26(b)(3) as having “substantially incorporated” these standards). Today, Rule 26(b)(3) of the Federal Rules of Civil Procedure also sets the standard for work product privilege.²⁰20. See id. at 430 (describing how Rule 26(b)(3) incorporates Hickman and “sets forth a standard as to the showing needed to overcome work product protection”). See also Fed. R. Civ. Proc. 26(b)(3)(A) (“Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative . . . .”).

Attorney-client and work product privilege are distinct privileges justified on distinct grounds and focused on distinct inquiries.²¹21. See supra note 8 (noting distinct goals toward which attorney-client and work product privilege are respectively tailored). In most instances, these doctrines are straightforward to apply. However, a communication created by an attorney with more than one purpose in mind—a so-called dual-purpose communication—implicates thorny issues. These dual-purpose communications are often made by an attorney “wear[ing] dual hats, serving as both lawyer and a trusted business advisor.”²²22. In re Grand Jury, 23 F.4th 1088, 1090 (9th Cir. 2021). Consequently, dual-purpose communications have grown more relevant over the years, in light of the “increasingly complex regulatory landscape”²³23. Id. implicating the services of attorneys who may offer both legal and business advice.

The tax context, for instance, is rife with opportunities for privilege issues relating to dual-purpose communications.²⁴24. “[S]ome communications might have more than one purpose, especially ‘in the tax law context, where an attorney’s advice may integrally involve both legal and non-legal analyses.’” Id. at 1091 (citing Sanmina Corp., 968 F.3d 1107, 1118 (9th Cir. 2020)). These issues in the tax context emerge because corporations may consult attorneys for myriad advice, and although there is an attorney-client privilege, there is no “accountant-client” privilege.²⁵25. In contrast, “normal tax return preparation assistance—even coming from lawyers—is generally not privileged, and courts should be careful to not accidentially create an accountant’s privilege where none is supposed to exist.” Id. at 1095 n.5. Thus, courts must ensure that documents withheld from disclosure on ground of privilege meet the requirements for attorney-client privilege. As the In re Grand Jury court noted, “attorney-client privilege might apply to legal advice about what to claim on a tax return, even if it does not apply to the numbers themselves.”²⁶26. Id. at 1092 n.2. However, privilege protects only certain communications; it will not apply to run-of-the-mill tax information relayed from client to attorney or memorialized by the attorney as part of standard tax practice.²⁷27. Id. at 1091 (“Generally, communications related to an attorney’s preparation of tax returns are not covered by attorney-client privilege. So, for example, ‘a client may communicate the figures from his W-2 form to an attorney while litigation is in progress, but this information certainly is not privileged.’” (quoting United States v. Abrahams, 905 F.2d 1276, 1283–84 (9th Cir. 1990), rev’d on other grounds by United States v. Jose, 131 F.3d 1325 (9th Cir. 1997)) (citing Olender v. United States, 210 F.2d 795, 806 (9th Cir. 1954)). In the context of standard tax information, there would be no valid claim of privilege as justification for withholding the communications.²⁸28. Id. Courts have not articulated a standard for assessing privilege claims of dual-purpose communications.²⁹29. See id. at 1090 (“Our court, however, has yet to articulate a consistent standard for determining when the attorney-client privilege applies to dual-purpose communications that implicate both legal and business concerns.”).

Facts Underlying the Recent Ninth Circuit Decision

In In re Grand Jury, a California federal grand jury sought information relating to the owner of a company, who was the target of a criminal investigation.³⁰30. See id. at 1090–91 (describing background facts giving rise to privilege assertion). Seeking specific communications, the grand jury issued subpoenas to the appellants: the individual’s company and law firm. The appellants complied with some of the requests but refused to produce certain requested tax-related documents citing work product and attorney-client privilege.³¹31. See id. When the district court granted in part the government’s motion to compel production,³²32. In granting the government’s motion to compel production, “the district court explained that these documents were either not protected by any privilege or were discoverable under the crime-fraud exception.” Id. at 1090. Discussion of the crime-fraud exception and its bearing on the issues in In re Grand Jury is beyond the scope of this piece. The Ninth Circuit disposed of the assertion of the crime-fraud exception “in a concurrently filed, sealed memorandum disposition.” Id. at 1090 n.1. the appellants continued to assert both privileges and refused to produce the withheld documents. The refusal ultimately landed the appellants in contempt, prompting the appeal to decide the appropriate standard for assessing attorney-client privilege with respect to dual-purpose communications.³³33. See id. at 1091 (noting findings of contempt and appellants’ appeal). The court focused on the standard for attorney-client privilege for dual-purpose documents. Work product asks whether the document was created in anticipation of litigation and often relies on the “because of” test explored infra note 41, and it does not protect documents where there has been a showing of “substantial need” by the adversary. Thus, because work product privilege applies to documents created in the face of litigation, work product privilege for dual-purpose communications is uninteresting. Fed. R. Civ. Proc. 26(b)(3). The Ninth Circuit granted the motion.³⁴34. See id. (granting appeal under 28 U.S.C. § 1291).

A year earlier, the Ninth Circuit declined an opportunity to decide this question. In United States v. Sanmina Corp. & Subsidiaries,³⁵35. 968 F.3d 1107 (9th Cir. 2020). the court heard a dispute concerning privilege claims with respect to dual-purpose tax communications.³⁶36. See id. at 1118–19, 1118 n.5 (describing the communications as “dual purpose” and weighing possible proper standards). The Sanmina court chronicled the intra-circuit split on the question of the proper test to apply,³⁷37. See id. at 1118 n.5 (illustrating the Ninth Circuit intra-circuit split by pointing to four district courts which applied the “primary purpose” test and two other courts which applied the “because of” test in an attorney-client privilege claim). but it ultimately declined to resolve the split given that the facts of the case did not demand a clear standard.³⁸38. See id. at 1118–19 (“Notwithstanding this intra-circuit split, however, we need not decide the issue on the facts of this case.”). However, the open question once again materialized before the court on appeal in In re Grand Jury.

On appeal in In re Grand Jury, the government argued in favor of the “primary purpose” test to narrow the privilege rule, which would promote greater opportunities for compelled disclosure. As the Ninth Circuit explained: “Under the ‘primary purpose’ test, courts look at whether the primary purpose of the communication is to give or receive legal advice, as opposed to business or tax advice. . . . The natural implication of this inquiry is that a dual-purpose communication can only have a single ‘primary’ purpose.”³⁹39. In re Grand Jury, 23 F.4th 1088, 1091 (9th Cir. 2021). In fact, the government sought to narrow substantially the protection offered by decrees of privilege, “suggest[ing] that dual-purpose communications in the tax advice context can never be privileged.”⁴⁰40. Id. at 1092 n.2 (emphasis added). However, the court disposed of this contention in a footnote as inapposite with Ninth Circuit case law, citing to a case in which the Ninth Circuit neither resoundingly accepted the privilege claim of a dual-purpose tax advice communication nor rejected the possibility outright that privilege may apply under certain circumstances.⁴¹41. See id. (determining that relevant case law does not support the government’s contention that dual-purpose tax-related documents are never privileged) (citing United States v. Abrahams, 905 F.2d 1276, 1284 (9th Cir. 1990), rev’d on other grounds by United States v. Jose, 131 F.3d 1325 (9th Cir. 1997)). But while the court rejected the government’s argument that tax-related dual-purpose communications can never be privileged, the court endorsed the government’s “primary purpose” argument, holding that the primary purpose test governs. ⁴²42. See id. at 1092.

On the other hand, the appellants sought adoption of the broadest possible privilege standard—the “because of” test traditionally applied to work product privilege.⁴³43. See id. at 1093 (setting forth appellants’ argument). The “because of” test proposed by appellants:

does not consider whether litigation was a primary or secondary motive behind the creation of a document. It instead considers the totality of the circumstances and affords protection when it can fairly be said that the document was created because of anticipated litigation, and would not have been created in substantially similar form but for the prospect of that litigation.⁴⁴44. Id. at 1091–92 (emphasis added) (internal quotation marks omitted).

However, the Ninth Circuit declined to adopt the “because of” test, finding unpersuasive appellants’ arguments to use the work product “because of” test for whether attorney-client privilege applies for dual-purpose communications.⁴⁵45. See id. at 1093 (“Appellants assert . . . that we should . . . borrow the test from the work-product doctrine when a communication has a dual purpose . . . . But . . . [a]ppellants offer no persuasive reason to abandon the common-law rule [with respect to privilege claims for dual-purpose communications.]”). Specifically, the court proceeded in three steps. First, the court concluded that the dispute was governed by the applicable attorney-client privilege standard for dual-purpose communications—not work product.⁴⁶46. Id. at 1091 (finding that the attorney-client privilege is the only privilege applicable in this case). Second, the court rejected the “because of” test for attorney-client privilege and held that the primary purpose standard is the proper test.⁴⁷47. See id. at 1094. Third, the court explored the D.C. Circuit’s Kellogg test but ultimately declined the opportunity to endorse that standard.⁴⁸48. See id. For a discussion of the D.C. Circuit’s Kellog test, see infra Section I.C. Thus, in rejecting the “because of” test and affirming the lower court’s finding of contempt, the court explained that attorney-client privilege focused on “the purpose of the communication, not its relation to anticipated litigation,”⁴⁹49. Id. at 1093. thereby underscoring the distinction between work product and attorney-client privilege.

Rationale of the Ninth Circuit’s Decision

The Ninth Circuit correctly homes in on the distinction between attorney-client and work product privilege. The two privileges, although complementary, serve distinct purposes and trace distinct historical developments along separate threads of the common law. The court explains the goal of work product privilege as preservation of “a zone of privacy in which a lawyer can prepare and develop legal theories and strategy with an eye toward litigation, free from unnecessary intrusion by his adversaries.”⁵⁰50. Id. (citing United States v. Adlman, 134 F.3d 1194, 1196 (2d. Cir. 1998)). On the other hand, the sanctity of the relationship between a client and her attorney animates the attorney-client privilege.⁵¹51. Id. (stating that the attorney-client privilege is concerned with “providing a sanctuary for candid communication about any legal matter, not just impending litigation.”). In fact, “the attorney-client privilege encourages ‘full and frank communication between attorneys and their clients and thereby promote[s] broader public interests in the observance of law and administration of justice.’”⁵²52. Id. (citing Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)).

The Ninth Circuit, however, did not tether its rationale only to the importance of maintaining a clear demarcation between two privileges imported and developed from common law. It also considered the practical realities. In explaining its holding that the work product “because of” standard does not govern attorney-client privilege disputes, the Ninth Circuit considered the incentive structure for attorneys and firms that would inevitably develop in reaction to adoption of a “because of” standard governing attorney-client privilege assertions involving dual-purpose communications. The court explained that the “because of” test, if applied to attorney-client privilege, “would create perverse incentives for companies to add layers of lawyers to every business decision in hopes of insulating themselves from scrutiny in any future litigation,”⁵³53. Id. Privilege standards powerfully influence the manner in which organizations choose to conduct business, and organizations react to incentive structures. For instance, in March 2022, the Department of Justice moved to compel Google, LLC, to disclose certain documents alleged to have been improperly cloaked in attorney-client privilege through the inclusion of attorneys on run-of-the-mill business matters. See generally Plaintiffs’ Motion to Sanction Google and Compel Disclosure of Documents Unjustifiably Claimed by Google as Attorney-Client Privileged, United States v. Google, LLC, No. 1:20-cv-03010 (filed Mar. 21, 2022), https://www.abajournal.com/files/US_v._Google_3_.21.22_sanctions_motion_.pdf [https://perma.cc/47GU-ZPCJ]. and it expressed concern that applying the test in the attorney-client privilege context “might harm our adversarial system if parties try to withhold key documents as privileged by claiming that they were created ‘because of’ litigation concerns.”⁵⁴54. In re Grand Jury, 23 F.4th at 1093.

Finally, the panel considered the governing standard in other circuits for assertions of attorney-client privilege of dual-purpose communications. Of those which have confronted the issue, sister circuits generally have declined to import the “because of” standard into attorney-client privilege inquiries for dual-purpose communications.⁵⁵55. See id. at 1094 (“[M]ost, if not all, of our sister circuits that have addressed this issue have opted for some version of the ‘primary purpose’ test instead of the ‘because of’ test.”). However, while the Ninth Circuit merely rejected the “because of” standard and left open the exact contours of the primary purpose test, the D.C. Circuit has provided more granular guidance.⁵⁶56. See generally In re Kellogg Brown & Root, Inc., 756 F.3d 754 (D.C. Cir. 2014).

The D.C. Circuit’s Kellogg Test

Nearly a decade ago, the D.C. Circuit set forth its “a primary purpose” standard.⁵⁷57. See id. at 759–60 (describing “a primary purpose test” and its justification). Confronted with a privilege dispute centered on whether certain documents produced by attorneys in the course of an internal investigation for a defense contractor constituted “legal advice”⁵⁸58. Id. at 756. or “unprivileged business records,”⁵⁹59. Id. the district court reviewed the disputed documents in camera⁶⁰60. In camera review refers to nonpublic “examination of materials.” See, e.g., In Camera Definition, Law Insider, https://www.lawinsider.com/dictionary/in-camera-review [https://perma.cc/TF4N-G3G6] (last accessed June 13, 2022). and “determined that the attorney-client privilege protection did not apply because . . . [the defendant] had not shown that ‘the communication would not have been made ‘but for’ the fact that legal advice was sought.’”⁶¹61. Kellogg, 756 F.3d at 756. The defendant maintained its privilege claim over the dual-purpose communications and sought mandamus relief at the D.C. Circuit.⁶²62. The D.C. Circuit court heard this mandamus petition—an interlocutory order—because “the District Court’s privilege ruling constituted legal error” and also was an “error of the kind that justifies mandamus” under 28 U.S.C. § 1651. Id. at 756–57. As the court explained, “[m]andamus is a ‘drastic and extraordinary’ remedy ‘reserved for really extraordinary causes.’” Id. at 760 (quoting Cheney v. U.S. Dist. Ct. for the Dist. of Columbia, 542 U.S. 367, 380 (2004)).

In an opinion penned by then-Judge Kavanaugh, the Kellogg court found that the district court had applied an incorrect standard—the “but for” test—in its determination that the defendant may not withhold the documents under a claim of attorney-client privilege.⁶³63. See id. at 759 (noting the District Court correctly set forth the “primary purpose” test, but “then said that the primary purpose of a communication is to obtain or provide legal advice only if the communication would not have been made ‘but for’ the fact that legal advice was sought”). The district court correctly cited the primary purpose test but erroneously described the test as a “but-for” inquiry.⁶⁴64. See id. (noting that the lower court started its privilege inquiry “by reciting the ‘primary purpose’ test [for dual-purpose communications] . . . . [T]he District Court then said that the primary purpose of a communication is to obtain or provide legal advice only if the communication would not have been made ‘but for’ the fact that legal advice was sought”). The Circuit Court rejected the District Court’s application of the primary purpose test⁶⁵65. See id. (noting the lower court’s error in asking the “but-for” inquiry to apply the primary purpose test). and took the opportunity to clarify precisely the proper standard:

[T]rying to find the one primary purpose for a communication motivated by two sometimes overlapping purposes (one legal and one business, for example) can be an inherently impossible task. It is often not useful or even feasible to try to determine whether the purpose was A or B when the purpose was A and B. It is thus not correct for a court to presume that a communication can have only one primary purpose. It is likewise not correct for a court to try to find the one primary purpose in cases where a given communication plainly has multiple purposes.⁶⁶66. Id. at 759–60 (second emphasis added).

Thus, the Kellogg court soundly rejected “the primary purpose” standard as the appropriate test in questions of attorney-client privilege claims for dual-purpose communications. Instead, the D.C. Circuit explained that the following inquiry governs: “Was obtaining or providing legal advice a primary purpose of the communication, meaning one of the significant purposes of the communication?”⁶⁷67. Id. at 760.

Despite careful treatment of the issue and a seemingly unambiguous standard offered by the Kellogg court, commentators remain skeptical of Kellogg’s legacy: “[W]hether Kellogg represents a broad and significant development in attorney-client privilege remains to be seen.”⁶⁸68. Hazard, Hodes, & Jarvis, supra note 2, § 10–07.08. Although the D.C. Circuit decided Kellogg eight years ago, no other circuit has yet adopted the “a primary purpose” standard. Id. Circuits may continue to narrow Kellogg to its facts, as the Ninth Circuit did by distinguishing tax-related dual-purpose communications from those communications created as part of an internal investigation. In re Grand Jury, 23 F.4th 1088, 1094–95 (9th Cir. 2021) On the other hand, the Kellogg “a primary purpose test” standard has gained traction in a handful of district courts.⁶⁹69. See, e.g., In re Grand Jury, 23 F.4th at 1095 n.4 (listing cases, e.g., in the Southern District of New York, the District of Maryland, and the Eastern District of Michigan, as instances in which the Kellogg test was adopted). And the D.C. Circuit continues to apply this standard in its assessment of attorney-client privilege for dual-purpose communications.⁷⁰70. See, e.g., FTC v. Boehringer Ingelheim Pharms., Inc., 892 F.3d 1264, 1267–68 (D.C. Cir. 2018) (applying the Kellogg test to a dual-purpose communication, asking “whether obtaining or providing legal advice was one of the significant purposes of the communications at issue,” and, upon an affirmative finding, holding that the documents were protected by attorney-client privilege).

The Ninth Circuit declined the opportunity to adopt the Kellogg test—despite appellants’ arguments in In re Grand Jury: Appellants argued in the alternative that, should the court decline to adopt the “because of” test, the Kellogg “a primary purpose” test should govern.”⁷¹71. See In re Grand Jury, 23 F.4th, at 1094. The Ninth Circuit side-stepped the issue.⁷²72. The court in a section header noted, “We Leave Open Whether the ‘A Primary Purpose Test’ Should Apply.” See id. Later decisions have endorsed the idea that the In re Grand Jury court avoided the issue. See, e.g., Meta Platforms v. Brandtotal Ltd., No. 20-cv-07182, 2022, U.S. Dist. LEXIS 4820, at *4–5 (N.D. Cal. Jan. 10, 2022) (noting that for dual-purpose communications, “the Ninth Circuit has declined to resolve whether legal advice must be ‘the primary purpose’ or merely ‘a primary purpose’”). See also supra notes 60–65 and accompanying text. Although the court recognized the “merits of the reasoning in Kellogg” and indicated that it may be inclined to adopt the Kellogg test in a future dispute, it declined “to adopt or apply the Kellogg formulation of the primary-purpose test here.”⁷³73. In re Grand Jury, 23 F.4th at 1094–95. Implying that the context in which dual-purpose communications are created is a dimension of the court’s focus, the Ninth Circuit distinguished Kellogg on the ground that it was formulated in light of corporate internal investigations, not tax-related documents as in In re Grand Jury.⁷⁴74. See id. (“We also recognize that Kellogg dealt with the very specific context of corporate internal investigations, and its reasoning does not apply with equal force in the tax context.”). The Ninth Circuit may have sought to find a way to confine Kellogg to its facts in order to avoid the more corporate-friendly “a primary purpose” test for attorney-client privilege for dual-purpose communications. On the other hand, internal investigations are often an element of a corporate compliance program, and perhaps both the In re Grand Jury and the Kellogg court sought not to undermine future compliance efforts, and therefore treat differently on the margins dual-purpose communications generated in a corporate compliance-centered context.

II. IMPLICATIONS OF THE RULING

Where does this holding leave law firms and business organizations? Although the In re Grand Jury court did not endorse the more corporate-friendly “a primary purpose” standard, those firms and organizations subject to the Ninth Circuit’s jurisdiction will benefit from the clear rejection of the “because of” test in the context of attorney-client privilege for dual-purpose communications.

In any event, both in-house and outside counsel should consider taking steps to designate the purpose for which documents meant to protect attorney-client privilege are created to inoculate against potential future document requests. As some commentators have suggested:

Regardless of how the purpose line is drawn by a court in any particular case, . . . attorneys and their clients may be able to influence—although perhaps not wholly control—the availability of the privilege by creating a record indicating why communications are occurring, or by segregating communications in aid of legal advice from those involving non-legal advice.⁷⁵75. Hazard, Hodes, & Jarvis, supra note 2.

Thus, critical examination by attorneys of existing processes may be warranted to protect client interests.

In re Grand Jury has implications beyond the tax-law context. District courts in the Ninth Circuit already have relied on In re Grand Jury in order to determine the validity of assertions of privilege in other contexts. In an employment discrimination dispute, a magistrate judge for the District of Oregon conducted an in camera review of two email documents withheld by defendants on grounds of attorney-client privilege.⁷⁶76. See Walker v. Shangri-La Corp., No. 6:20-cv-01577, 2022 U.S. Dist. LEXIS 16293, at *4 (D. Or. Jan. 28, 2022). Applying the “primary purpose test” as set forth in In re Grand Jury,⁷⁷77. See id. at *3–4 (applying the In re Grand Jury formulation of the “primary purpose” standard). the magistrate determined that “the primary purpose of the communication was to receive legal advice from an attorney employed with reference to that attorney’s knowledge and discretion in the law”⁷⁸78. Id. at *4. and concluded the documents were properly withheld on ground of attorney-client privilege.⁷⁹79. See id. (finding upon application of the primary purpose test that “any discoverable content in the two e-mail documents is protected from disclosure under the attorney-client privilege”).

Interestingly, and perhaps hinting at the degree to which the recent decision clarified the proper standard for assessment of privilege claims, at least one district court in the Ninth Circuit cited to In re Grand Jury for its explication of the “because of” standard in the work product context.⁸⁰80. Discovery Land Co. LLC v. Berkley Ins. Co., No. CV-20-01541-PHX, 2022 U.S. Dist. LEXIS 11604 (D. Ariz. Jan. 21, 2022). It is possible that the Arizona District Court misconstrued In re Grand Jury, given that it did not cite to the “primary purpose” standard as set forth in In re Grand Jury in its treatment of attorney-client privilege in the same decision. There, and unlike the In re Grand Jury court, the Arizona District Court faced a straightforward, single-purpose communication allegedly protected by work product privilege. The Arizona District Court framed the “because of” standard as an emanation of the In re Grand Jury decision, and the court applied this test to the communication in question to find that contested documents were protected by work product privilege.⁸¹81. See id. at *15–16 (“To determine whether a document qualifies for protection under the work-product protection, the Ninth Circuit has adopted a broad ‘because of’ test.” (citing In re Grand Jury, 23 F.4th 1095 (9th Cir. 2021))).

It remains possible that the Ninth Circuit will adopt the Kellogg test in a future dispute for which the difference between “a primary purpose” and “the primary purpose” carries weight. But the In re Grand Jury court explained that it was not obligated to consider the Kellogg test fully “[b]ecause the district court did not clearly err in finding that the predominate purpose of the disputed communications was not to obtain legal advice, [and therefore] they do not fall within the narrow universe where the Kellogg test would change the outcome of the privilege analysis.”⁸²82. In re Grand Jury, 23 F.4th 1088, 1095 (9th Cir. 2021). In other words, the Ninth Circuit was not “persuaded that the facts here require us to reach the Kellogg question.”⁸³83. Id. at 1094. In fact, the court signaled its openness to adopting the Kellogg test—at least under circumstances closely mirroring those present in Kellogg, and for litigants for whom the difference in privilege application between “a primary purpose” and “the primary purpose” is meaningful.⁸⁴84. Id. at 1094–95 (noting that the Kellogg test “would save courts the trouble of having to identify a predominate purpose among two (or more) potentially equal purposes,” and explaining that “the universe of documents in which the Kellogg test would make a difference is limited”). Compounding the potential for a future dispute to force the Ninth Circuit to rule decisively on the issue, district courts in the circuit continue to acknowledge that the precise standard remains an open question.⁸⁵85. See, e.g., Meta Platforms v. Brandtotal Ltd., No. 20-cv-07182, 2022 U.S. Dist. LEXIS 4820, at *4–5 (N.D. Cal. Jan. 10, 2022) (“If a communication serves more than one purpose, the Ninth Circuit has declined to resolve whether legal advice must be ‘the primary purpose’ or merely ‘a primary purpose.’”); Walker v. Shangri-La Corp., No. 6:20-cv-01577, 2022 U.S. Dist. LEXIS 16293, at *3 (noting that the In re Grand Jury court “declined to resolve whether its primary purpose test requires legal advice to ‘be the primary purpose or merely a primary purpose’”).

However, although a dispute in which a party argues in favor of the Kellogg standard likely will emerge in the Ninth Circuit, whether the Ninth Circuit will adopt the test remains murky. The Kellogg “a primary purpose” test has failed to gain traction since its 2014 promulgation, suggesting that sister circuits may be reluctant to embrace the broader Kellogg standard for attorney-client privilege for dual-purpose communications.⁸⁶86. See, e.g., In re Grand Jury, 23 F.4th at 1094 n.3 (citing Alomari v. Ohio Dep’t of Pub. Safety, 626 F. App’x 558, 572–73 (6th Cir. 2015)) (applying the primary purpose test and not mentioning Kellogg). Moreover, many state courts have expressly endorsed “the primary purpose” standard.⁸⁷87. See, e.g., In re Polaris, Inc, 967 N.W.2d 397, 408 n.1 (Minn. 2021) (citing cases from other state courts in support) (“Because we apply the attorney-client privilege narrowly, we agree with the overwhelming majority of state courts that have adopted the predominant purpose test and conclude that legal advice must be the primary purpose of the communication.”). And the Ninth Circuit’s incremental rulings in the space of dual-purpose communications hint at a reluctance to embrace fully the Kellogg test.⁸⁸88. See, e.g., United States v. Sanmina Corp., 968 F.3d 1107, 1118–19 (9th Cir. 2020) (declining to decide the issue of proper standard in dual-purpose communications context); In re Grand Jury, 23 F.4th at 1094 (declining at this time to decide whether to embrace the Kellogg test). Thus, given general reluctance by courts to adopt the “a primary purpose” standard, Kellogg remains an outlier. Courts may be motivated to retain the primary purpose standard in order to avoid a corporate-friendly approach to attorney-client privilege. Moreover, as noted, the role of a compliance program may have cut in favor of the business organization in Kellogg in a way that does not easily extend to other contexts.

CONCLUSION

The Ninth Circuit’s In re Grand Jury holding clarified the intra-circuit split left open by the court a year prior in its Sanmina opinion. The In re Grand Jury court expressly rejected importing the “because of” standard from the work product context into the assessment of claims of attorney-client privilege for dual-purpose communications. Instead, the Ninth Circuit asserted that the “primary purpose” test governs. But questions still linger as to the precise test that may be applied in future disputes. In the case of a dual-purpose document formed with two equal purposes, what standard will apply? Will the Ninth Circuit ultimately join the D.C. Circuit in adopting the Kellogg “a primary purpose” framework? Or instead, will the court reject Kellogg explicitly, or implicitly by choosing to characterize one of the purposes as “the primary purpose”? The court’s signaling in In re Grand Jury—and the lower courts’ amplification—of the existing open issue of adoption of the Kellogg test could not be clearer. The Ninth Circuit will likely confront this issue once again and have another opportunity to clarify its stance on the Kellogg test.