5th Circuit took statements out of context, federal judge says in opinion

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U.S. District Court Judge Keith Ellison is fighting back after a federal appeals court said he appeared to prejudge a case before the facts were in.

In a decision filed March 11, Ellison said the 5th U.S. Circuit Court of Appeals at New Orleans had taken his words out of context and mischaracterized his statements, the Texas Lawyer reports.

Ellison named the author of the 5th Circuit decision—Circuit Judge Jerry Smith—in the first paragraph of his decision.

“If the same panel is to be involved in further stages of this case, it is to be hoped that the panel can achieve a higher degree of accuracy and candor,” said Ellison, who is based in Houston.

“In almost 20 years on the bench,” Ellison wrote, “this court has not had to issue any other writing like this one. But never before has an appellate judge mischaracterized the trial record so significantly and, it appears, willfully.”

The dispute at this stage of the case centered on whether JPMorgan Chase & Co. was required to notify certain current and former call-center employees about a class action alleging that they were not compensated for off-the-clock tasks.

Ellison had ruled that JPMorgan should send notice of the class action to 42,000 people, including about 35,000 individuals said to have signed arbitration agreements waiving their right to collective remedies.

Smith’s Feb. 21 opinion did not name Ellison as the trial judge. Smith concluded that notice should not be sent to the estimated 35,000 employees, and the trial judge (Ellison) should revisit his decision. The appeals court did not issue a writ of mandamus, however, because Ellison did not “clearly and indisputably” err, as required for the writ.

Smith went on to accuse Ellison of failing to heed the Supreme Court’s warning in a 1989 case “to avoid even the appearance of judicial endorsement” on the merits of a class action.

“As the case progresses,” Smith wrote in a footnote, “the district judge should make every reasonable effort to avoid the perception that he has prejudged any aspect of this proceeding.”

Smith cited some alleged examples of Ellison appearing to prejudge the case, including:

• During a hearing, Ellison said that failure to provide notice to potential plaintiffs would “further disenfranchise” them even beyond the “huge compromise” of individual rights that took place when they signed arbitration agreements.

• Ellison said it “doesn’t seem to me unfair to give plaintiffs notice that they … have been victims of this illegality.” In Smith’s view, Ellison’s reference to “victims of this illegality” appeared to say that JPMorgan had violated federal wage law.

In his counter opinion, Ellison provided the full quotes. They included:

• Ellison’s comment about illegality read in full: “Take the argument that plaintiffs make at face value. If, if JPMorgan Chase has engaged in a long-running illegality, it doesn’t seem to me unfair to give plaintiffs notice that they have been victims of this illegality.”

• Ellison’s comments about the “huge compromise” and disenfranchisement of rights read in full: “It seems to me that you characterize JPMorgan Chase’s position as we made these people sign arbitration agreements, which in itself is a huge compromise of individual’s rights. Now we are going to further disenfranchise them by not telling them there may have been something illegal about the practice they were subject to.”

Ellison also complained that Smith’s opinion “seems to take as a given” that the arbitration agreements were valid and enforceable. “But plaintiffs do not concede that,” Ellison said.




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