I guess we now know which Ninth Circuit families eat tuna fish: Judges McKeown, Wardlaw, Berzon, Owens, Miller, Collins, Bress, and Forrest.
It's all kind of silly, actually. Plaintiffs bring a class action lawsuit claiming that the three major domestic producers of packaged tuna (Bumble Bee, StarKist and Chicken of the Sea) illegally conspired to fix prices for canned tuna. Which basically everyone admits at this point. (Those bastards.) After the civil lawsuit was filed, the DOJ criminally charged the three defendants (as well as several of their executives), and basically all three businesses have at this point pled guilty and/or admitted to price-fixing.
So all we need to get relief for consumers is to certify a class and settle the thing. The district court does the former; the defendants appeal; a panel opinion back in April says whoa, hold on, I'm not so sure that the case should be certified, and now the Ninth Circuit takes the thing en banc.
All of which is fine.
The fun thing about the order taking the case en banc, however, is that seven different active Ninth Circuit judges recuse themselves from the en banc vote: the aforementioned Judges McKeown, Wardlaw, Berzon, Owens, Miller, Collins, Bress, and Forrest. Now, it's possible, of course, that some of these judges own stock in (or are otherwise affiliated) with these tuna producers. But far more likely, I think, is that they're members of the putative class; in other words, they (or their families) have previously purchased canned tuna.
Presumably to eat.
(Though I guess it's possible that it's for their cats.)
As a result, were the class action to go forward and be successful, presumably these judges could at some future point fill out a claim form, mail it in, and get back something like $25 or whatever the ultimate settlement will be.
In truth, though, I suspect that not a single one of 'em would actually do it. It's a pain to fill out those forms -- and that's assuming you even know about the settlement (or feel like participating) in the first place. Plus, it's not like some fancy-pants judge will likely take the time to fill out paperwork like that to receive a relative pittance, and even if they felt like it, I suspect that most of 'em would be totally fine to agree not to do so (Oh no! No $25!!) in return for being able to participate in an en banc process that might assist the rest of the tuna-eating public in getting some compensation.
But, nope, that's not the way the recusal process works. If you're a member of the putative class, and if there are enough judges not in the class to permit the thing to go forward, you typically step aside.
Even if we all, in our hearts, recognize that there's zero chance that a judge would actually have his or her deliberative process actually affected by the prospect of a possible whopping $25 (or even $100!) recovery in a consumer class action.
But fear not. The panel will be pure. Pure non-tuna eaters.
(Oh, by the way, lest you think that Democrats eat more tuna than Republicans, the recusals here are split 50/50 between Democratic and Republican appointees. Though I did notice that every single one of the recusals was from a resident of the West Coast -- not as much canned tuna eating in places like Arizona or Idaho, apparently.)
POSTSCRIPT - An informed reader thinks that some/many of the recusals may instead be the result of the attorneys on the case; e.g., from Munger Tolles. Maybe, though it's a pretty big number. My bet is that we're still looking at a nontrivial number of tuna eaters.
