from the has-the-monkey-settled? dept
Ted Frank is a well-respected lawyer who has heroically dedicated much of his career to stopping bad legal practices, including sketchy settlements in class action lawsuits. Now he’s taking action in another case involving a sketchy settlement: the monkey selfie case. As we highlighted earlier this week, while it was no surprise that PETA and photographer David Slater worked out a settlement agreement to end the ridiculous lawsuit PETA had filed, it was deeply concerning that part of the settlement involved PETA demanding that the original district court ruling — the one saying, clearly, that animals don’t get copyrights — should be thrown out.
It took just a few days for Frank, on behalf of CEI, to file a wonderful and hilarious amicus brief with the court. There are a bunch of reasons why vacatur is improper here, but the real beauty of this brief is in pointing out that Naruto — the monkey — has been left out of the settlement, and thus not “all parties” have agreed. No, really.
PETA continued to assert that it acted as Naruto?s next friend before this Court, after Dr. Engelhardt voluntarily dismissed her appeal before briefs were filed…. The defendants argued that because Dr. Engelhardt was the only person pleaded to have any relationship with Naruto, PETA could not demonstrate the ?significant relationship? required to establish next friend standing…. In response, PETA again asserted in writing and at oral argument that it acts as Naruto?s next friend….
Incredibly, PETA now represents that it entered into settlement with the defendants alone?without Naruto…. The settlement instead ?resolves all disputes arising out of this litigation as between PETA and Defendants.?… This statement makes no sense. PETA did not have claims against the defendants. PETA argued repeatedly it was a next friend, a nominal party. For what their worth, all claims arising out of this litigation belong to the sole plaintiff, Naruto….
The underlying complaint does not plead a case or controversy between PETA and defendants, and this alone bars vacatur. Without standing, PETA may not move for vacatur. It does not matter that the defendants half-heartedly moved for vacatur under their settlement agreement ?without joining or taking any position as to the bases for that request.?… The losing party?Naruto?must carry the burden of proving ?equitable entitlement to the extraordinary remedy of vacatur.?…
No Naruto, no standing, no vacatur.
No Naruto, no standing, no vacatur. What a world we live in.
PETA?s too-clever-by-half argument simply does not work. PETA cannot claim to be a qualified next friend, then pretend to be unqualified when it suits them for the limited purpose of vacating an unfavorable precedent. Their position is especially untenable because PETA still ?contends that it can satisfy the Next Friend requirements, or should be permitted the opportunity to do so before the district court, if the appeal is not dismissed.?
Alternatively, Frank argues that since Naruto is not technically a part of the settlement, perhaps the appeals court should reject the settlement and issue its opinion anyway:
Alternatively, if the Court takes PETA?s argument literally, and if PETA agreed only to stop acting as next friend for Naruto, leaving the monkey without an advocate, such a selfish settlement would not extinguish Naruto?s appeal. A stipulation signed only on behalf of the next friend (a nominal party) cannot moot the underlying controversy with the actual party. To the extent that PETA insists this occurred, they have simply ceased to adequately represent their supposed friend Naruto. If so, PETA?s stipulation should be disregarded.
Frank also takes a stab at PETA’s whole “next friend” argument and why it’s so silly in a footnote. First, he notes that if the court is concerned that Naruto is now “friendless” at the court, it could appoint a guardian ad litem, with the following footnote mocking PETA’s claim to “next friend” status.
The Competitive Enterprise Institute has as much of a personal relationship with Naruto as PETA pleaded (i.e., none), so might plausibly serve the role as well as PETA has. However, any next friend or guardian should have a bona fide personal and non-ideological interest in the incompetent person?putting aside the question of whether animals may be persons under Fed. R. Civ. Proc. 17.
And, of course, who knows if Naruto (or some other “next friend”) won’t sue again:
In any event, if Naruto?s claims were indeed not settled by PETA, vacatur should be denied because ?Naruto? (that is, someone claiming to be his ?next friend?) would remain free to file suit again for further acts of alleged infringement.
While this is a bit of a throwaway line, it’s actually important — and it’s one that David Slater should pay attention to. Allowing PETA to toss out the lower court settlement might not end his legal troubles over this matter. Anyone else alleging to be Naruto’s “next friend” might go right back to court.
Finally, Frank notes that just because the parties have announced a settlement, that doesn’t mean the court can’t reject it and issue a ruling — providing guidance to other courts in the circuit on this issue.
In Americana Art, the panel chose to issue an affirming opinion notwithstanding the dismissal because of the ?opportunity to provide additional guidance to the district courts.?… PETA previously stated to this Court that the case presents ?a question of first impression [and] the issue is not a trivial one.? … Given the judicial resources already expended at the district-court and appellate level, the Court can rationally conclude, especially given that PETA is attempting to elide the question of whether it is or is not a ?next friend,? that, if the Court is already close to a decision in this straightforward case, it should provide ?guidance to the district courts? by issuing a decision that would not require much additional expenditure of judicial resources
I would be pleasantly surprised if the 9th Circuit actually keeps the case going and issues an opinion — but at the very least, it shouldn’t ditch the district court ruling.