Monday, May 3, 2010
Mireya Navarro of the New York Times wrote an article published on Sunday about Judge Alvin Hellerstein who is overseeing the 9/11 World Trade Center Disaster Site litigation, and who now famously came out against the proposed settlement in that case. The article is called "Empathetic Judge in 9/11 Suits Seen By Some As Interfering."
The theme of the article is Judge Hellerstein's empathy for these special victims. Some legal experts, Navarro writes, say that he was acting outside of his judicial capacity -- "such intervention is not the norm outside the class action."
While Judge Hellerstein's actions in this case are very public and the subject of a great deal of interest, its not clear to me that there is a difference between what he did and what judges usually do. As I see it, the litigants here (or the lawyers more precisely) are trying to put together the kind of settlement that Merck and the plaintiffs lawyers were able to put together in Vioxx. In that case, the litigants sought Judge Fallon's approval for the settlement, which was controversial. Judge Fallon's approval - especially because he is a thoughtful, intelligent and well-respected federal judge - was critical to the success of that settlement. I asked him once why, if it wasn't a class action, his approval was needed. He replied in sum and substance that the parties wouldn't proceed without his approval.
The WTC lawyers wanted Judge Hellerstein's approval for the same reasons the Vioxx lawyers did - he is a thoughtful, intelligent and well respected federal judge. His approval of the settlement would give it gravitas; it would make plaintiffs whose lawyers weren't involved in drafting it want to sign on; it would make plaintiffs who had no way of knowing what they would get at the end of the day agree to buy a pig in a poke because they could trust the process. The lawyers didn't get the Judge's sign-on. It seems that with their appeal to the Second Circuit they are saying he acted beyond the scope of judicial power now that they got a response from the judge that they didn't like.
But how is this different than a settlement conference in an ordinary case when the judge opines that a settlement is not giving the plaintiff enough? After all, the parties came to Judge Hellerstein. They could settle the cases individually and dismiss them one after the other as settlement is reached. If they chose to dismiss their individual cases, its not clear to me that there is anything Judge Hellerstein could do other than to tell the client he thought that was a bad idea. But if the lawyers want an aggregate settlement and they want a Judge to give them legitimacy, then they have to face the reality that he will only legitimate a settlement he thinks is appropriate under the circumstances.
EDITED TO ADD: You can find the documents regarding the appeal on the Napoli Bern website.