With Judge Philip Gutierrez gutting the Sunday Ticket verdict and belatedly throwing the case out of court, the plaintiffs definitely will appeal the decision to the U.S. Court of Appeals for the Ninth Circuit.
So what happens next? It really is a crapshoot.
The Ninth Circuit currently has 29 judges. Three of them will be assigned to handle the appeal. Until we know the three judges, it becomes impossible to even try to begin to predict the outcome.
Some judges might be inclined to uphold Gutierrez’s decision. Some might be inclined to overturn it. More than any other factor, the composition of that three-judge panel will determine the case.
I’ve argued cases before the Fourth Circuit, in Richmond. There (and it’s been a while so it possibly has changed), the lawyers didn’t know the names of the judges until they showed up for the hearing, after all briefs and related paperwork were submitted.
Some judges will have a history of making pro-business rulings. Some judges will have a history of making pro-consumer rulings. That tendency is often revealed by the party of the president who appointed the judge.
The split for the 29 active circuit judges is 16-13, Democrat. For the 23 senior-status judges on the Ninth Circuit, it’s 14-9, Democrat.
The appeal will take a year or so to resolve. The case could be sent back for a new trial on damages, the $4.7 billion verdict could be reinstated, or the judge’s decision to throw the case out could be upheld.
Already, the Ninth Circuit has overturned a decision to throw the case out before the litigation even got going.
Of course, before anything would become final, whoever loses at this level will seek a rehearing and/or a decision from the full court and, inevitably, a petition to the Supreme Court.