The Southern District media office has confirmed that Judge Baer passed away last night.  He had been on the Southern District bench since 1994.  More on his background is here. Our posts on Judge Baer are here.

In a statement regarding the denial of certiorari today, Justice Alito was critical of the practice of Judge Baer (noted in our post here) of requesting law firms staff class actions with lawyers reflecting the gender and racial makeup of the class. Justice Alito agreed that the matter did not merit Supreme Court review because of the “uniqueness of th[e] practice,” but stated that he found it objectionable:
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In an opinion yesterday, Judge Baer unsealed documents relating to a petition to confirm an arbitration award, notwithstanding the parties’ agreement to keep the information confidential, and notwithstanding that the parties settled the dispute before any ruling on the petition.  The unsealing order came in response to a motion to intervene from several insurance companies with disputes similar to the one that was the subject of the confidential arbitration.  Judge Baer concluded that the fact of a settlement was irrelevant:
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Citing the Second Circuit’s recent decision in NECA-IBEW Health & Welfare Fund v. Goldman Sachs & Co., 693 F.3d 145 (2d Cir. 2012), Judge Baer yesterday granted plaintiffs’ motion for reconsideration in two cases based on allegedly fraudulent statements in connection with the sale of mortgage backed securities. The order reinstated claims he had previously dismissed because they related to securities that the named plaintiffs had not actually purchased. In the prior orders, Judge Baer had granted the motion of Royal Bank of Scotland, Citigroup, UBS and others on Article III standing grounds. Judge Baer explained the reason for his decision to grant the motion for reconsideration:
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Today, the ACLU (along with the National Consumer Law Center ) filed a class action suit against Morgan Stanley on behalf of African American homeowners in Detroit, Michigan. The complaint alleges that Morgan Stanley’s policies and practices enabled and encouraged predatory lending by the (now bankrupt) New Century Mortgage Company, that disparately impacted African American borrowers in and around Detroit, and violated the Fair Housing Act and the Equal Credit Opportunity Act.
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This evening, Judge Baer dismissed one of three actions alleging that Google’s mass digitization of written works owned by certain Universities – which are then contributed to the HathiTrust Digital Library and made available – in snippets – via Google Books, is violative of the Copyright Act. Judge Baer concluded that the Mass Digitization Project and the HathiTrust Digital Library are protected under fair use, and granted defendants’ motions for summary judgment. Judge Baer observed that the project’s full-text search capability “allows scholars to identify relevant works far more efficiently. In addition, the program helps Defendants preserve their collections in the face of normal deterioration during circulation, natural disasters, or other catastrophes that decimate library collections, as well as loss due to theft or misplacement.” He concluded “I cannot imagine a definition of fair use that. . . would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts . . . .”
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