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Column: Courts finally move to end right-wing judge shopping, but the damage may already be done

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Column: Courts finally move to end right-wing judge shopping, but the damage may already be done

Some lawsuits are won by smart lawyers and some on the facts. But nothing spells success as much as the ability to pick your own judge.

That’s the lesson taught by conservative activists who have moved in federal courts to overturn government programs and policies on abortion, contraception, immigration, gun control, student loan relief and vaccine mandates, among other issues.

In recent years they’ve gamed the judicial system to get their lawsuits heard by judges they knew would be sure to see things their way. The process is known as judge shopping, and the committee that makes policy for the federal courts just moved to put an end to it.

The courts have now formally recognized the need to do something about a really troubling pattern of judge shopping.

— Amanda Shanor, University of Pennsylvania constitutional law expert

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In a policy statement and official guidance issued last week, the Judicial Conference of the United States said that henceforth, any lawsuit seeking a statewide or nationwide injunction against a government policy or action should be assigned at random to a judge in the federal district where it’s filed.

If that sounds a bit vague to the layperson, its target is crystal clear to legal experts: It’s aimed at right-wing activists and politicians who have filed their cases in federal courthouses presided over by highly partisan judges in Texas. Most of those judges were appointed by Donald Trump.

It would be bad enough if those judges’ rulings applied only within their judicial districts or affected only the plaintiffs. But the judges have issued sweeping nationwide injunctions that block government programs and policies coast-to-coast.

As Ian Millhiser of Vox put it, this is America’s “Matthew Kacsmaryk problem.” Kacsmaryk is the Trump-appointed Texas federal judge who most recently attempted to outlaw mifepristone, a widely used abortion medication, nationwide. His April 2023 ruling has been temporarily stayed by the Supreme Court, but it’s still on the docket, ticking away.

But Kacsmaryk is not alone. As recently as March 8, Judge J. Campbell Barker, a Trump appointee who presides over 50% of the civil cases filed in his rustic courthouse in Tyler, Texas, invalidated a ruling by the National Labor Relations Board broadening the standard by which big corporations could be held jointly responsible for the welfare and unionization rights of workers employed by their franchisees.

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How serious a blow could the judicial conference’s policy be to conservatives aiming to roll back civil rights? Massive, judging from the reaction of Senate Minority Leader Mitch McConnell (R-Ky.). Only 48 hours after the conference announced its initiative, McConnell wrote to the chief judges of all judicial districts urging them to ignore the new policy.

This was an audacious move, considering that the presiding officer of the Judicial Council is Chief Justice John G. Roberts Jr., its membership comprises the chief judges of the 12 judicial circuits and one judge from a district court in each circuit, and its role is to set policy for the entire federal court system.

McConnell asserted that only Congress can make the rules for the assignment of federal trial judges, but that’s dubious. In an analysis last year, the Justice Department concluded that the Supreme Court has full authority to impose rules of civil procedure in the federal courts, including a rule mandating that all federal judicial districts assign judges randomly to civil lawsuits aimed at statewide or nationwide injunctions. The Judicial Council’s policy isn’t the same as as a Supreme Court rule, but it’s a fair bet that if pushed, the court would issue the rule.

McConnell also asserted that the Judicial Conference had been pressured into acting by Senate Majority Leader Charles E. Schumer (D-N.Y.), but that’s untrue. Although Schumer has spoken out against judge shopping, numerous legal experts and Roberts himself have expressed concerns about the practice.

“The courts have now formally recognized the need to do something about a really troubling pattern of judge shopping,” Amanda Shanor, a constitutional law expert at the University of Pennsylvania, said of the Judicial Conference’s initiative.

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What’s yet unclear is whether the conference’s initiative goes far enough. Its policy statement is described as “guidance,” not a mandate. it acknowledges the district courts’ “authority and discretion” to manage their dockets as they see fit.

Last year, Shanor, with Alice Clapman and Jennifer Ahearn of NYU’s Brennan Center for Justice, proposed that the conference require all judicial districts to use a “random or blind procedure” to distribute cases among all the judges in the district when the litigants seek an injunction or other relief that would extend beyond the district’s borders.

The practice traditionally labeled “forum shopping” is not especially new. The earliest case cited by legal experts dates back to 1842, when a litigant chose to file a lawsuit in federal rather than state court in New York to gain a strategic advantage over his adversary.

Plaintiffs have been known to choose a venue based on local statutes of limitation, or a sense that juries in a region might be more amenable to their case, or because their location may be more convenient for parties or witnesses.

More recently, however, the practice has been heavily abused for partisan and ideological purposes. This results from two trends. One is the increasing partisanship of individual federal judges, especially those appointed by Trump. The second is those judges’ habit of issuing nationwide injunctions against government policies or programs.

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Nationwide injunctions can impose parochial partisan ideologies on the whole country. Through 2023, the state of Texas filed more than 31 federal lawsuits challenging Biden administration policies — but not a single one in federal court in Austin, which is the state capital but an island of blue in a red state.

The state had filed seven lawsuits in Amarillo, where by local procedure every one was automatically assigned to Kacsmaryk; six in Victoria, where all civil cases are assigned to Trump appointee Drew B. Tipton; and four in Galveston, where all civil cases come before Trump appointee Jeff Brown.

The rest were filed in divisions with two judges, most of whom are also Trump appointees or conservative appointees of George W. Bush. In the Tyler division from which Barker issued his NLRB decision, all the cases he doesn’t get are assigned to Judge Jeremy Kernodle, also a Trump appointee.

Although some nationwide injunctions have been lifted by the Supreme Court, that process seldom happens speedily. The result is that the plaintiffs effectively win by losing, as injunctions against government policies can have “the lasting systemic effect of blocking these policies for months or years,” Shanor, Clapman and Ahearn observed.

Kacsmaryk got the mifepristone case for two reasons. First, antiabortion activists knew of his strong antiabortion inclinations. Second, the policy in the Northern District of Texas is to assign cases to judges in the division where they’re filed.

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Kacsmaryk is the only judge sitting in the Amarillo division of the Northern District of Texas. So it was an easy call for the mifepristone plaintiffs to file there, knowing that their chance of drawing Kacsmaryk as their judge was 100%.

The same pattern drove plaintiffs to file lawsuits against Biden administration initiatives in the same district’s Fort Worth division, which has two judges, Trump appointee Mark T. Pittman and George W. Bush appointee Reed O’Connor. Both have been sought by conservative litigants. O’Connor also presides over 100% of the cases filed in the district’s Wichita Falls courthouse, where he is the only judge.

Pittman obligingly overturned Biden’s student loan relief program in 2022. Just this month, he ruled the government’s 55-year-old Minority Business Development Agency to be unconstitutional and ordered it opened to contract applicants of all races — obviously a ruling that defeats the purpose of a program designed to help minorities get a start in the business world. O’Connor tried to declare the entire Affordable Care Act unconstitutional in 2018. The Supreme Court overruled him in 2021.

The judicial conference’s initiative is long overdue.

Customarily, rulings by federal trial judges have constituted precedents binding at most on other judges in a particular judicial district or resulted in court orders benefiting only the plaintiffs who filed the case.

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Matters are different “when a court effectively can bind the entire nation with an injunction” that applies to “an unlimited range of persons and to conduct occurring in … an equally unlimited array of places,” legal scholar Ronald A. Cass wrote in 2018.

The prospect of sweeping rulings incentivizes “an extreme race to courthouses more inclined to issue nationwide injunctions and more sympathetic to the plaintiff’s position,” Cass wrote.

In its latest incarnation, “litigants effectively have the ability to effectively choose an actual judge,” Shanor told me.

“We don’t know how the policy will be rolled out, what exactly is in it, or how much of it is a recommendation rather than a requirement,” she says. “A policy may be effective, but having a rule would advance the fairness and randomness of the distribution of these nationally important cases, and ensure the perceived legitimacy of the courts.”

One is that the policy won’t apply to cases that have already been assigned to a judge. Another is that litigants can still try to game the system by filing their lawsuits in states from which appeals are heard by circuit courts known to have a particular partisan lean.

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That’s a major issue with Texas cases, which are funneled on appeal to the 5th Circuit, sitting in New Orleans. That court has been the source of right-wing decisions so loopy that they’ve been slapped down by the conservative majority on the Supreme Court. Of that circuit’s 17 active judges, six are Trump appointees.

McConnell’s objection to the Judicial Conference’s policy thus should be seen in context. He had more to do than anyone else with embedding Trumpian judges in the federal judiciary, where they wreak havoc on government policies and programs that help ordinary Americans, not just corporations and the rich. The conference’s initiative may be the first step toward a more fair-minded judiciary, but it’s a crucial one.

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'Wicked' spectacles, merger gossip and movie industry woes at CinemaCon 2024

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'Wicked' spectacles, merger gossip and movie industry woes at CinemaCon 2024

Movie theaters need more movies. Will they ever get enough to truly thrive again?

That was the central question overhanging CinemaCon 2024, the annual convention bringing together Hollywood studios and multiplex operators in Las Vegas this week.

Exhibitors pleaded with the major studios to release more films of varying budgets on the big screen, while studios made the case that their upcoming slates are robust enough to keep them in business.

Once again, CinemaCon, where studios trot out executives and movie stars to pitch their upcoming blockbusters, arrived at a particularly challenging time for the film industry.

After weathering a devastating pandemic that shut down theaters for months, two of the most essential parts of the Hollywood machine, writers and actors, went on strike. The work stoppages — which lasted a combined six months — prompted the leading entertainment companies to push a number of titles to 2025 from 2024, disrupting the supply chain and sparking widespread anxiety in the exhibition community.

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Box office revenue in the U.S. and Canada is expected to total about $8.5 billion, which is down from $9 billion in 2023 and a far cry from the pre-pandemic yearly tallies that nearly reached $12 billion.

“It’s not enough for us to simply sit back and want more movies,” said Michael O’Leary, president of the National Assn. of Theatre Owners, during Tuesday’s state-of-the-industry address at the Colosseum in Caesars Palace. “We must work with distribution to get more movies of all sizes to the marketplace.”

Though a fuller release schedule is expected for 2025, talk of budget cuts, greater industry consolidation and corporate mergers has forced exhibitors to prepare for the possibility of a near future with fewer studios making fewer movies.

In the extravagant banquet and trade show halls of Caesars Palace, theater operators groaned about 2024 being painted as yet another “lost year” for cinema — determined in spite of the grim discourse to remain optimistic.

“All indications are the rest of the year is going to be a lot better,” said David Fetters, vice president of West Mall Theatres in Minnesota and South Dakota. “The product we’re seeing here is looking outstanding.”

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The studios tried to give exhibitors something to hope for during their CinemaCon presentations — hyping their movie lineups, bringing out filmmakers and cast members, pulling silly stunts, and playing sizzle reels, sneak peeks, trailers and, in some cases, entire features for their industry audience.

‘Wicked’ brings down the house

While promoting their 2024-25 programming, the studios pulled out plenty of stops.

Distribution executives at Warner Bros. delivered their opening remarks dressed as Michael Keaton’s Beetlejuice; Dwayne Johnson joined a Polynesian dance troupe while introducing Disney’s “Moana 2”; and the head of distribution at Paramount entered the theater in full “Gladiator” armor on a gold chariot.

But Universal’s presentation of “Wicked” — director Jon M. Chu’s film adaptation of the hit Broadway musical — took the cake. Convention attendees arrived at their seats to find a surprise in their cup holders: roses that illuminated for a technicolor light show set to an instrumental medley of “Wicked” songs. After the overture, a pre-taped message to all “CinemaConians” from Jeff Goldblum’s imposing Wizard of Oz played onscreen, and Goldblum took the stage in real life.

He was later joined by Michelle Yeoh (Madame Morrible), Jonathan Bailey (Fiyero) producer Marc Platt and Chu, who fought back tears while talking about casting the film’s leading witches. On cue, Glinda and Elphaba themselves — Ariana Grande and Cynthia Erivo — emerged from the wings to thunderous applause.

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Like Chu, Grande was overcome with emotion and paused briefly to compose herself while delivering her remarks. .

Other pictures teased during the studio presentations included Universal’s “Despicable Me 4,” Warner Bros.’ “Furiosa: A Mad Max Saga” and “Joker: Folie à Deux,” Paramount’s “A Quiet Place: Day One” and “Transformers One,” and Disney’s “Inside Out 2” and “Deadpool & Wolverine.”

Paramount deal looms

Amid the displays of corporate harmony, it was hard to ignore the elephant in the convention center: a potential merger between Paramount Global and David Ellison’s production company, Skydance.

Shares of Paramount Global — home of Paramount Pictures, CBS and several other legacy brands and franchises — took a nosedive Wednesday after news that a group of of the company’s directors are stepping down amid merger discussions.

This would be only the latest Hollywood merger in a string of deals, including Disney’s acquisition of Fox in 2019 and Warner Bros.’ union with Discovery in 2022.

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When asked about the theatrical implications of another studio sale in an already rapidly consolidating industry, National Assn. of Theatre Owners President Michael O’Leary and Motion Picture Assn. Chairman Charles Rivkin largely waved it off.

“There’s always other things that we can do as an industry association to strengthen our industry, and I’ll cross that bridge when I get to it,” Rivkin said during a CinemaCon news conference.

Rather than avoiding the topic during the studio’s CinemaCon presentation on Thursday, Paramount Pictures chief Brian Robbins handled the situation with humor.

“There’s been a lot of speculation around our parent company around [mergers and acquisitions],” Robbins said before joking that Paramount’s head of domestic distribution, Chris Aronson, “has now thrown his hat into the ring as a bidder.”

“He’s starting a Kickstarter campaign,” Robbins continued as the crowd chuckled.

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Japanese cinema and faith-based content reign

As the domestic film business has been thrown into turmoil in recent years, Japanese cinema and faith-based content have been two of movie theaters’ saving graces.

Industry leaders kicked off CinemaCon on Tuesday by singing the praises of Sony-owned anime distributor Crunchyroll’s hits — including the latest “Demon Slayer” installment.

Mitchel Berger, senior vice president of global commerce at Crunchyroll, said Tuesday that the global anime business generated $14 billion a decade ago and is projected to generate $37 billion next year.

“Anime is red hot right now,” Berger said. “Fans have known about it for years, but now everyone else is catching up and recognizing that it’s a cultural, economic force to be reckoned with.”

Last year, event-cinema company Fathom Events decided to expand its annual Studio Ghibli series, screening “Spirited Away,” “Princess Mononoke” and other Hayao Miyazaki classics for five nights each instead of just one or two. Fathom Events Chief Executive Ray Nutt said that the extended runs allowed those titles to gross 142% more than they had in the past.

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“Anime was one that did very well for us,” Nutt said. “The team is really good at sourcing content and then figuring out where the audiences drive tickets.”

Another type of product buoying the exhibition industry right now is faith-based programming, shepherded in large part by “Sound of Freedom” distributor Angel Studios.

During its presentation on Wednesday, Angel Studios unveiled its lineup of “stories that amplify light,” including an animated feature telling the biblical tale of David and a live-action drama about a German pastor who conspires against the Nazis during World War. II.

“Some of the faith-based things, especially in our part of the country — the Midwest — have had a lot of good traction,” Fetters said.

Nutt added that Fathom Events has also had “huge success” connecting with faith-based audiences by screening content such as episodes of “The Chosen,” a drama series chronicling the life of Jesus Christ. The latest season of the show generated $32 million at the box office, according to Nutt.

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Exhibitors make plea for more movies… and flexible windows

The greatest challenge facing theaters right now is a dearth of theatrical releases, exhibitors say. Theater owners urged studio executives at CinemaCon to put more films in theaters — and not just big-budget tent poles timed for summer movie season and holiday weekends.

“There’s been a bit of a shortage of good content because of the strikes and that sort of thing,” said Mark Shaw, owner of Shaw Theatres in Singapore. “And also, during the pandemic, we lost some of the audience. Trying to get that audience back into theaters is a bit of a challenge.”

“Whenever we have a [blockbuster] film — whether it be ‘Barbie’ or ‘Super Mario’ … records are set,” added Bill Barstow, co-founder of ACX Cinemas in Nebraska. “But we just don’t have enough of them.”

During an industry think-tank panel on Wednesday, Disney distribution executive Cathleen Taff defended the company’s decision to delay certain movies — including the animated film “Elio” and a live-action remake of “Snow White” — to 2025, explaining that at least some of those titles were not finished in time for a 2024 release.

“From a studio perspective … we need to walk in tandem together,” Taff said.

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“We have to pick some good dates and we had to do those shifts. And of course we thought about the theaters, but the reality is we’re not going to release an unfinished film.”

An additional issue affecting owners of independent theaters and smaller chains is studio-imposed three-week minimum runs for major movies. Multiple exhibitors told The Times that these businesses can’t afford to let one movie to take up a screen for three weeks because there simply isn’t enough population where they operate to fill seats for that long.

“If you run it for two weeks, the community has already seen it,” said Colleen Barstow, vice president of ACX Cinemas.

“There is no need to require three-week or longer commitments,” said Chris Johnson, chief executive of Classic Cinemas in Illinois. “If you have a hit, we will hold it.”

The next frontier: ‘alternative content’

One way that exhibitors are trying to fill the void of studio releases is by showing “alternative content” — from reissues of beloved films and screenings of TV shows to musical performances and sporting events.

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The best example of this phenomenon is AMC Theatres’ distribution of Taylor Swift’s “The Eras Tour” and Beyonce’s “Renaissance.”

Fathom Events, which has been in the business of alternative content for decades, is going further by attaching live and pre-recorded Q&As to their screenings, as well as handing out collectible merchandise as an extra incentive for audiences.

“You go to go to a regular movie, you buy the ticket, you watch the movie — I don’t mean to demean the movie experience by any stretch of imagination — but that’s pretty much it,” Nutt said. “With us, you are going to … get something special.”

Larger companies such as AMC have been partnering with studios to level up their merchandise game as well. See: the infamous “Dune 2” popcorn bucket, which inspired Disney to promise at CinemaCon to deliver a must-have “Deadpool 3” popcorn bucket.

“There are some studios that inadvertently make crude and rude popcorn buckets,” joked Marvel Studios president Kevin Feige during Disney’s presentation. “And then there are popcorn buckets designed by Deadpool.”

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The Big Number: 5.3%

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The Big Number: 5.3%

In recent months, the Fed had been signaling that there would be two or three rate cuts this year.

But on Wednesday, the Bureau of Labor Statistics reported that the Consumer Price Index had climbed 3.8 percent on an annual basis in March after volatile food and fuel prices were stripped out. That “core” index was stronger than what economists had forecast.

Hiroko Masuike/The New York Times

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Google says it will reduce some user access to California news sites

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Google says it will reduce some user access to California news sites

Google said Friday it would remove links to California news sites from its search results for some of its users, as it pushes back against a pending bill that would require the Silicon Valley technology company to pay publishers.

The search giant said the bill, called the California Journalism Preservation Act (CJPA), would upend its business model. The bill, if signed into law, would require companies including Google to fork over a “journalism usage fee” when they sell ads next to news content.

“We have long said that this is the wrong approach to supporting journalism,” wrote Jaffer Zaidi, vice president of Google’s Global News Partnerships, in a blog post on Friday. “If passed, CJPA may result in significant changes to the services we can offer Californians and the traffic we can provide to California publishers.”

Google also said it is “pausing further investments in the California news ecosystem.”

Many news outlets rely on sites like Google and Facebook to distribute its news, but they are at the whim of the companies’ algorithms.

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Publishers, including the Los Angeles Times, have laid off staff in part due to revenue shortfalls blamed on the decline of print journalism and weak advertising dollars.

National news organizations such as the Washington Post and the Wall Street Journal also have laid off staff, as have primarily digital operations including BuzzFeed, Business Insider and Vice.

Local online outlet L.A. Taco, which recently put most of its staff on furlough, said one of the factors leading to its struggles include “Google’s A.I. that pulls information for its self-generated responses from news organizations without linking back.” It also cited changing audience habits as people gravitate toward watching influencer-style videos instead of reading articles.

“These two factors essentially destroyed journalism’s business model overnight,” wrote Javier Cabral, L.A. Taco’s editor.

The California Journalism Preservation Act is supported by the California News Publishers Assn. and the News/Media Alliance, of which The Times is a member.

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The California News Publishers Assn. did not immediately respond to a request for comment.

Supporters of the California bill said it would help level the playing field for journalism outlets that have been struggling with gaining enough digital subscriptions to survive .

“Just to understand the difference in market dynamics, just consider that Google earns enough advertising revenue to pay for the [annual] cost of our newsroom in less than three hours,” said Chris Argentieri, president and chief operating officer of the Los Angeles Times at a hearing last year discussing the bill. “Google’s revenue for a month or two would cover the cost of all working journalists in California.

“Large digital platforms like Google and Meta use our content to generate billions of dollars in revenue and do not compensate us for it,” Argentieri said. “The size of the companies makes it impossible for us or anyone in our industry, for that matter, to have a seat at the table to resolve this issue through normal business channels.”

Critics of the bill, including Google, say that it would favor media conglomerates and hedge funds and put smaller outlets at a disadvantage.

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The Mountain View, Calif.-based firm said it has partnered with more than 7,000 global news publishers through its Google News Initiative, including 6,000 journalists in California, but Zaidi said the company was pausing expansion of that initiative “until there’s clarity on California’s regulatory environment.”

The initiative has helped provide grants and training to journalists on digital tools. Just 2% of queries on Google search are news-related, Zaidi wrote.

“By helping people find news stories, we help publishers of all sizes grow their audiences at no cost to them,” Zaidi wrote. “CJPA would up-end that model.”

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