Tuesday, August 09, 2011

Pitts v. Terrible Herbst, Inc. (9th Cir. - August 9, 2011)

This is why we have courts of appeal.

It's a very good opinion by Judge Bybee.  Comprehensive, coherent and persuasive.  He holds, among other things, that making a Rule 68 settlement offer that gives the named plaintiff in a putative class action everything s/he wants does not successfully "pick off" the representative and moot the lawsuit.  His analysis is spot on.

Sure, that's also what every other circuit to have ever decided the issue has also held -- a fact that Judge Bybee notes only in a footnote at the end of his own analysis.  But while the opinion is, for this reason, perhaps a little long-winded, it's only marginally so.  It's like most law review articles:  it retreads a ton of ground unnecessarily, but does so well.  So it's not too surprising that a former law professor would write something like this.

The analysis of the other (fact-specific) claims is equally persuasive.  The entire thing left me with a fairly poor impression of Chief Judge Jones (in Nevada), who made a variety of fairly clear errors in this one, and seemed almost hell-bent on dismissing this case.  But, again, that's precisely the reason we have appellate courts.  One person can err.  So we review that person's decision with a three-judge panel.  Justice often results.

As here.