Earlier this month, the United States Supreme Court unanimously rebuffed the Second Circuit’s attempt to expand the scope of res judicata to include the so-called concept of “defense preclusion” – a novel doctrine that would have barred defendants from raising defenses not asserted in previously adjudicated disputes regardless of whether the disputes share a common nucleus of operative fact. Lucky Brand Dungarees, Inc. v. Marcel Fashions Group, Inc..

When it overturned a federal court’s order suppressing a litigant’s right to publicly gripe about a pending suit late last month, the Ninth Circuit took the opportunity to remind those of us in the legal profession that we are held to a different, higher standard when it comes to public comment on litigation. In an early footnote in the Court’s opinion in In re Dan Farr Productions, the Ninth Circuit distinguished the instant case from its prior decision in Levine v. U.S. Dist. Court, noting that counsel “are officers of the court subject to fiduciary and ethical obligations” which “do[] not apply to non-attorney participants.” Slip Op. at fn. 3.

music-3In a putative class action alleging widespread copyright infringement commenced in December 2015 against Spotify, Plaintiff, the lead singer for the bands Cracker and Camper Van Beethoven, recently moved pursuant to Federal Rule of Civil Procedure 26(d) to monitor — and possibly prevent — Spotify USA, Inc. (“Spotify”) from engaging in communications with individuals who fall within the Complaint’s definition of class members. Lowery v. Spotify USA, Inc. The communications at issue concern Spotify’s estimated $30 million settlement with the National Music Publishers Association (“NMPA”), which is not a party to the litigation. The dispute raises an interesting question regarding the appropriate role for the court to play in refereeing class action settlement politics when class counsel has extra-judicial competition in seeking to represent the class.