Katzman v. Victoria's Secret Catalogue, 96 Civ. 0003 (RWS).
| Decision Date | 29 April 1996 |
| Docket Number | No. 96 Civ. 0003 (RWS).,96 Civ. 0003 (RWS). |
| Citation | 923 F. Supp. 580 |
| Parties | Denise KATZMAN, et al., Plaintiffs, v. VICTORIA'S SECRET CATALOGUE, et al., Defendants. In re COURTROOM TELEVISION NETWORK, Applicant/Proposed Intervenor. |
| Court | U.S. District Court — Southern District of New York |
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Howard Gotbetter, New York City, for Plaintiffs.
Parker Chapin Flattau & Klimpl, L.L.P., New York City (Stephen F. Harmon, of counsel), for Defendants.
Fried, Frank, Harris, Shriver & Jacobson, New York City (Gregory P. Joseph, of counsel), for Defendants.
Cahill Gordon & Reindel, New York City (Floyd Abrams, of counsel), for Proposed Intervenor.
Courtroom Television Network ("Court TV") has moved to be heard, either pursuant to General Local Rule 7 of this Court ("Rule 7") or through a motion to intervene pursuant to Rule 24, Fed.R.Civ.P., to seek permission to televise an oral argument to be held on May 1, 1996, on the motion of Defendants, Victoria's Secret Catalogue, Leslie H. Wexner, Edward G. Razek, Cynthia Fedus, and Betsy Hendrickson (collectively, "Victoria's Secret" or "Defendants"), to dismiss the Amended Complaint and on the motion of Plaintiff Denise Katzman ("Katzman") to amend the Amended Complaint (the "May 1 Argument"). For the reasons set forth below, Court TV's motions to intervene and to televise the May 1 Argument will be granted.
The Complaint was filed on January 2, 1996, as a class action, and an Amended Complaint was filed on January 4, 1996. The filings were reported in a number of news publications and on television.
The Amended Complaint alleges that Victoria's Secret Catalogue, a manufacturer and distributor of women's apparel, which sells large volumes of merchandise via mail order catalogue, has discriminated in its pricing structures with respect to catalogues mailed to different catalogue recipients. The Amended Complaint alleges violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961, et seq. ("RICO"). A proposed second amended and supplemental complaint alleges violations of the Lanham Act, adds an additional named plaintiff, and provides additional detail on the alleged discriminatory scheme. Two pretrial motions are pending: Defendants' motion to dismiss the Amended Complaint, which challenges the legal sufficiency of the discriminatory pricing claims, and Katzman's motion to serve and file the second amended and supplemental complaint. The motions are scheduled to be heard on May 1, 1996.
The instant application to be heard and to televise the May 1 Argument was heard on its return date, April 17, 1996, and was opposed by Defendants. It was considered fully submitted on that date.
Court TV is a news television network, which reports on legal and judicial systems within the United States and abroad. Since its creation, Court TV has specialized in extended, complete coverage of civil and criminal trials and has televised over four hundred such trials, as well as numerous oral arguments, both on motions before trial courts and in appellate proceedings. Court TV has televised fifty-one cases in federal court, both before district courts (including this Court) and courts of appeals.
Court TV uses one small, stationary camera, which makes no noise and requires only existing courtroom lighting. The camera is placed away from the proceedings and can be operated by remote control by a Court TV technician. Small microphones record only the public record. The equipment is no more distracting in appearance than reporters with notebooks or artists with sketch pads.
Court TV seeks to televise the May 1 Argument gavel-to-gavel. Court TV will not state whether it will carry the May 1 Argument live or when or if it will be broadcast.
Generally, "representatives of the press and general public `must be given an opportunity to be heard on the question of their exclusion.'" Globe Newspaper Co. v. Superior Court for Norfolk Cty., 457 U.S. 596, 609 n. 24, 102 S.Ct. 2613, 2621 n. 24, 73 L.Ed.2d 248 (1982) (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 401, 99 S.Ct. 2898, 2916, 61 L.Ed.2d 608 (1979) (Powell, J., concurring)). Rule 24(a)(2) of the Federal Rules of Civil Procedure provides that intervention shall be granted as of right when an applicant:
claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.
Court TV has articulated an interest relating to this action: its interest in broadcasting to its viewers an event it deems newsworthy — the May 1 Argument.
With respect to the second criterion of Rule 24(a)(2), neither Katzman nor Defendants adequately represent the interest of Court TV. Defendants have vigorously opposed Court TV's motion and, thus, plainly do not represent Court TV's interests. Katzman supports the application but possesses an entirely different interest. Important interests are best championed by those most directly affected by their impairment. See, e.g., In re NASDAQ Market-Makers Antitrust Litig., 164 F.R.D. 346, 351 (S.D.N.Y. 1996) (); In re Akron Beacon Journal, 1995 WL 234710, at *2-5 (S.D.N.Y. Apr. 20, 1995) (); United States v. Yonkers Bd. of Educ., 587 F.Supp. 51, 52 (S.D.N.Y.) (), aff'd, 747 F.2d 111 (2d Cir.1984). Accordingly, Court TV meets the second criterion for intervention, and its motion to intervene pursuant to Rule 24 will be granted.
Rule 7, entitled "Photographs, Radio, Recordings, Television," reads, in pertinent part, as follows:
No one other than court officials engaged in the conduct of court business shall bring any camera, transmitter, receiver, portable telephone or recording device into any courthouse or its environs without written permission of a judge of that court.
This rule was promulgated by the Board of Judges of this District as a result of Congress' determination that "all courts established by Act of Congress may from time to time prescribe rules for the conduct of their business." 28 U.S.C. § 2071(a) (1988). Pursuant to that statute, the Federal Rules of Civil Procedure provide:
Each district court, acting by a majority of its district judges, may, after giving appropriate public notice and an opportunity for comment, make and amend rules governing its practice.... A local rule takes effect on the date specified by the district court and remains in effect unless amended by the court or abrogated by the judicial council of the circuit.
Rule 83(a)(1). Fed.R.Civ.P. Rule 7, which was enacted by a majority of this Court's judges, took effect on June 30, 1988, see Marisol A. v. Giuliani, 95 Civ. 10533 (RJW), 1996 WL 91638 at *1 (S.D.N.Y. Mar. 1, 1996), and is the only local rule at present that addresses the topic of television, cameras, and related matters.1
On September 20, 1994, the Judicial Conference of the United States "declined to approve" the recommendation of its Committee on Court Administration and Case Management to permit generally the "photographing, recording, and broadcasting of civil proceedings in federal trial and appellate courts." That decision followed a two-year-long "Pilot Program" on television in federal trial courts, in which this Court participated.
On March 12, 1996, the Judicial Conference resolved that "each Court of Appeals may decide for itself whether to permit the taking of photographs and radio and television coverage of appellate arguments." At the same time, the Judicial Conference approved a resolution "strongly urging each judicial council to adopt pursuant to 28 U.S.C. § 332(d)(1) an order reflecting the Conference's September 1994 decision not to permit the taking of photographs and radio and television coverage of proceedings in U.S. district courts." In addition, "the Conference also voted to strongly urge circuit judicial councils to abrogate any local rules of court that conflict with this decision, pursuant to 28 U.S.C. § 2071(c)(1)."
However, Section 331 of the Judicial Code, which established the Conference, excludes from its authority the changing or overruling of district court rules. This Court evaluated the authority of the Judicial Conference in its recent decision in Marisol A., 1996 WL 91638, at *1. There, the Honorable Robert J. Ward ruled that "the policy of the Conference does not overrule or supplant the Local Rules adopted by the Board of Judges of this District Court." See 28 U.S.C. §§ 331, 2071(c) (1988). Marisol A., 1996 WL 91638, at *1. Judge Ward held, "the Court should consider the Conference policy only as a persuasive factor in the exercise" of its discretionary powers under Rule 7. Id.; accord United States v. Cacciatore, 487 F.2d 240, 243 n. 2 (2d Cir.1973) ().
There is, then, no binding authority other than Local General Rule 7 that addresses the topic of television. While the recent action of the Judicial Conference is persuasive, this Court is not required to defer to it. See Marisol A., 1996 WL 91638, at *1.
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