Friday, October 15, 2010

Judge in Thomas-Rasset case may scuttle third trial

The judge in the Jammie Thomas-Rasset case is considering canceling the third trial in this long-running litigation brought by the major record labels against an individual peer-to-peer user.

The parties are preparing for a new trial starting Nov. 2, to focus only on damages, following the court's remittitur of the $1.92 million verdict handed down by a Minneapolis jury in 2009. But Judge Michael Davis indicated at a pre-trial hearing on Tuesday that he will give serious consideration to a defense request to modify his order so that it would instead rest on constitutional grounds. That would bring a degree of finality to the case, at least in the district court, and allow for an immediate appeal by one or both sides. I'm told that at the hearing, Judge Davis actually alluded several times to the movie Groundhog Day, referencing the scenario where he would repeatedly remit jury awards, only to have that remittitur refused by the plaintiffs, necessitating yet another trial, and ad infinitum.

Today the defense filed its brief seeking such reconsideration. It cites to the order issued by Judge Nancy Gertner in the Joel Tenenbaum case, which reduced the jury's award from $675,000 to $67,500 on constitutional grounds. In his original order, Judge Davis declined to reach the constitutional issues, citing United States v. Allen, 406 F.3d 940, 946 (8th Cir. 2005) (“When we are confronted with several possible grounds for deciding a case, any of which would lead to the same result, we choose the narrowest ground in order to avoid unnecessary adjudication of constitutional issues.).” In her order in the Tenenbaum case, Judge Gertner concluded that avoiding the constitutional issues was impossible essentially because of the Groundhog Day problem.

I'm told that the labels' plan to oppose Thomas-Rasset's motion for reconsideration; their response is due Wednesday, Oct. 20.

Defendant's Motion for Reconsideration


  1. Saying this is a "Groundhog Day" scenario is completely disingenuous. The only reason this and the Tenenbaum cases seem repetitive is because in each case the judge has decided to overrule sua sponte the jury verdicts.

    These cases could have easily been made final and the matter moved, as they would no matter what the outcome, to the appellate courts. Had the courts originally chosen to pursue this course, it seems likely that the cases would already be on the appellate dockets and fully briefed, awaiting only oral argument.

    It seems to me all that has been accomplished to date is unnecessary delay and a waste of court resources, and it is the judges who should look in the mirror before trying to assign blame.

  2. @Anonymous:

    It is not correct to say that the judges in the Thomas-Rasset and Tenenbaum cases "decided to overrule sua sponte the jury verdicts." The orders reducing the jury's award of statutory damages were not "sua sponte"; they followed motions filed by the respective defendants.

    It is true that following the first Thomas-Rasset trial, the court sua sponte raised the issue of a flawed jury instruction on "making available":

    However, the court issued its decision only after receiving briefing from both sides, including a motion by the defendant:

  3. Ben,

    My "sua sponte" use was literary license simply to avoid treading old ground pertaining to the spate of post-verdict motions. In my view, the bottom line is that the judge in JRT was troubled by the size of the award and may very well have ordered remittitur even absent motions given a court's inherent equity powers.

    To some degree the same can be said of the judge in Tenenbaum.

    In both cases it seems clear that the judges simply did not believe that the awards were a fair reflection of what they perceived as appropriate, and then used protective legal cover to simply substitute their judgment for that of the juries.

    "Groundhog Day" is only a possible scenario because of each judge's predisposition to override the jury awards.

    I still hew to the line that these cases would already be briefed and set for argument had the judges simply finalized the awards and passed the cases along to the appealls courts where all of the issues would have been presented at oral argument.


Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.