I don't know much in this world. But here's one thing I do know: Don't try to hide things from the Ninth Circuit. Ever. Never ever. As anti-Nike might say, "Just don't do it." Because they get angry. Very angry. Which ain't good for you. Trust me.
Want to see an angry judge? Take a look at Judge Beezer's concurrence in this one. He's an angry man. Polite, restrained (to a degree), and analytical. But angry.
Why's he angry? Because the parties here settled the case (and hence the appeal), but tried to let the Ninth Circuit know as little as possible about this settlement in the hopes that the court would vacate the adverse decision of the district court below. That way it couldn't be used as estoppel, precedent, or anything else. The trick was to try to keep the appeal "alive" (for both Article III and prudential purposes) by having one side -- the one that wanted to vacate the judgment -- pay the other side's attorneys' fees to show up at oral argument and make it look like there was a live controversy, and hopefully doing this all without getting sanctioned for hiding the fact that the parties had settled.
And it worked. To a degree, anyway. No one got sanctioned. And the majority didn't grant the vacatur itself, but did remand to the district court to decide whether or not it felt like vacating the judgment. But don't think that the parties get off without taking some bigtime shots. From Judge Beezer, who isn't at all happy with what's been going on here.
Hence his concurrence. Which I view as relentlessly seething, even though it's simultaneously restrained. I have the keen sense that this is an angry, angry dude. And, quite frankly, for not insubstantial reasons. And an angry judge can do a lot of things to you, even if he's restrained enough to keep most of his comments out of the realm of personal attacks and instead limited to the doctrine. All of which Judge Beezer does. Which is why the panel, for example, ordered the parties to produce the entire settlement agreement to the court, and Judge Beezer -- for the benefit of the world -- elects to attach a copy to his concurrence. Which I'm sure the party that wanted the decision vacated (and paid all this money in order to make it happen) was really happy about. Not. And makes some not-so-subtle slams on the terms of this agreement and counsel for the parties, as well as including broad portions of the transcript of the oral argument in which counsel is put in the quite uncomfortable -- dare I say, somewhat squirming -- position of having to explain to a not-so-friendly bench what exactly has transpired here. Again, I thought that, in the scheme of things, Judge Beezer's opinion was fairly moderate, and he also made a very coherent (and good) doctrinal Article III point. But you could still see the emotional undercurrent. Which, I'm sure, also affects his substantive analysis: You wouldn't be fully human if it didn't, at least a tiny, tiny bit.
So a neat opinion to read. In the end, the majority decides to remand the case back down to the district court to decide whether it feels like vacating the case itself. But, if I were the parties, I wouldn't put much hope in these district court proceedings. Not only because a district court hardly has much of an incentive to vacate its own decision, which I'm sure it's convinced is correct. But also because both the tone and content of Judge Beezer's concurrence also serves to give the district court a lot of reasons to deny such a request on its merits.
Who were the attorneys involved, you ask? David Woolley was the counsel for DHX, and was the attorney who was being paid by the other side to show up for oral argument. (One of the very few lawyers who I've seen who has his undergraduate degree from Oxford, I might add.) Geoffrey Robb was the counsel for Allianz, the party who wanted the decision vacated and who paid the other side to try to help make it happen. (On his end, he's an East Asian Studies and History major from Wesleyan, another somewhat non-traditional route to becoming a California attorney.)
