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KATZMAN v. VICTORIA'S SECRET CATALOGUE

April 29, 1996

DENISE KATZMAN, et al., Plaintiffs, - against - VICTORIA'S SECRET CATALOGUE, et al., Defendants. IN RE: COURTROOM TELEVISION NETWORK, Applicant/Proposed Intervenor.


The opinion of the court was delivered by: SWEET

 Sweet, D.J.

 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.

 Background

 Prior Proceedings

 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 Nature of the Application

 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.

 Discussion

 The Motion to Intervene Will be Granted

 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, 73 L. Ed. 2d 248, 102 S. Ct. 2613 (1982) (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 401, 61 L. Ed. 2d 608, 99 S. Ct. 2898 (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) (granting newspaper's motion to intervene to be heard on issue of access to sealed court materials); In re Akron Beacon Journal, 1995 U.S. Dist. LEXIS 5183, *1-6, 1995 WL 234710, at *2-5 (S.D.N.Y. Apr. 20, 1995) (granting newspaper's motion to intervene to seek modification of protective order); United States v. Yonkers Bd. of Educ., 587 F. Supp. 51, 52 (S.D.N.Y.) (granting reporter's motion to intervene to seek to tape court proceedings), 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.

 Local Rule 7 is Controlling

 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.

 S.D.N.Y. Gen. R. 7.

 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. *fn1"


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