Thursday, February 11, 2016

Morley on Injunctive Relief and De Facto Class Actions

Michael Morley has posted on SSRN a draft of his article, De Facto Class Actions? Injunctive Relief in Election Law, Voting Rights, and Other Constitutional Cases. Here’s the abstract:

When a court holds that a legal provision is unconstitutional; inconsistent with, or preempted by, federal law; or invalid under an agency's organic statute or a framework statute such as the Administrative Procedures Act, the court must decide whether to grant injunctive relief and, if so, how broad that relief should be. In particular, the court must decide whether to issue a Plaintiff-Oriented Injunction or a Defendant-Oriented Injunction. A Plaintiff-Oriented Injunction bars the government defendants from enforcing the challenged provision only against the plaintiffs in the case or affected members of plaintiff organizations. A Defendant-Oriented Injunction, in contrast, completely bars the government defendant from enforcing the challenged provision against anyone in the state or nation.

Many courts tend to award Defendant-Oriented Injunctions in election law and voting rights cases, even when they are not brought as class actions, without recognizing or addressing most of the pertinent issues that choice implicates. Individual plaintiffs typically lack Article III standing to seek relief protecting the rights of third parties not before the court. And such third parties may neither fall within the court’s personal jurisdiction nor wish to challenge the provision at issue. Defendant-Oriented Injunctions in non-class cases also raise asymmetric preclusion concerns, undermine the policy considerations underlying Rule 23, and allow trial courts to enforce their rulings beyond the geographic limits of their jurisdiction. 

Continue reading

February 11, 2016 in Class Actions, Recent Scholarship | Permalink | Comments (0)

Tuesday, February 9, 2016

Choi and Pritchard on SEC Investigations and Securities Class Actions

A new article by Professors Stephen J. Choi and A.C. Pritchard, SEC Investigations and Securities Class Actions: An Empirical Comparison, has been published in the Journal of Empirical Legal Studies.

Abstract:

Using actions with both an SEC investigation and a class action as our baseline, we compare the targeting of SEC-only investigations with class-action-only lawsuits. Looking at measures of information asymmetry, we find that investors in the market perceive greater information asymmetry following the public announcement of the underlying violation for class-action-only lawsuits compared with SEC-only investigations. Turning to sanctions, we find that the incidence of top officer resignation is greater for class-action-only lawsuits relative to SEC-only investigations. Our findings are consistent with the private enforcement targeting disclosure violations at least as precisely as (if not more so than) SEC enforcement.

February 9, 2016 in Class Actions, Recent Scholarship | Permalink | Comments (0)

Palmer on Partisan Appointments to Special Courts and Panels

A new article, Does the Chief Justice Make Partisan Appointments to Special Courts and Panels?, by political science professor Maxwell Palmer (Boston University), has been published in the Journal of Empirical Legal Studies.

Abstract:

The Chief Justice of the Supreme Court has the exclusive and independent power to appoint federal judges to various special courts and panels, including the Foreign Intelligence Surveillance Court (FISC), the court that oversees all domestic surveillance for national security, including domestic data collection by the National Security Agency (NSA). This article examines the propensity of Chief Justices to appoint co-partisan judges to these panels. Such appointments may serve to produce decisions and policies that align with the Chief Justice's preferences. I use computational simulations to model the appointment decisions made by Chief Justices. I find that there is less than a 1 percent chance that a neutral Chief Justice would appoint as many Republicans to the FISC as have been appointed in the last 36 years. I further show that the Chief Justice is not selecting appointees on other observable judicial characteristics, such as age, experience, gender, senior status, or caseload. These results have important implications for the creation of judicial institutions, the internal politics of the judiciary, legislative delegation, and the powers and oversight of the national security state.

February 9, 2016 in Class Actions, Federal Courts, Recent Scholarship | Permalink | Comments (0)

Monday, February 8, 2016

Discovery Protocol Results in More Settlements, Fewer Motions to Compel

I don’t know how I missed this when it came out, but better late than never.  The Federal Judicial Center has published a brief empirical study of the pilot project on initial discovery protocols in employment cases.  Emery G. Lee & Jason A. Cantone, Report on Pilot Project Regarding Initial Discovery Protocols for Employment Cases Alleging Adverse Action (Oct. 2015).

One of the ideas floated at the 2010 conference on civil litigation held at Duke Law School was that pattern discovery (set forms) in particular case types might reduce discovery battles (and hence, “cost and delay”).  Another, related idea expressed at the conference was that initial required disclosures under FRCP 26(a) were generally not helpful.  The Advisory Committee did not officially pursue these ideas (in fact, it abolished all the forms following the FRCP).  However, a group of plaintiffs’ and defendants’ attorneys experienced in employment cases negotiated and finalized discovery protocols for those cases that replace the standard initial disclosures.  Judge John G. Koeltl and the Institute for the Advancement of the American Legal System (IAALS) facilitated the project.   

The protocols cover only cases alleging adverse employment action.  Certain cases are exempt from the protocols: class actions, and cases alleging only discrimination in hiring, harassment, or violations of FLSA, ADA, FMLA, or ERISA.

The protocols are posted on the FJC's website.  About 75 federal district court judges have adopted the protocols, and the FJC has now studied their effect.

As described by the FJC:

The Protocols create a new category of information exchange, replacing initial disclosures with initial discovery specific to employment cases alleging adverse action. This discovery is provided automatically by both sides within 30 days of the defendant’s responsive pleading or motion. While the parties’ subsequent right to discovery under the F.R.C.P. is not affected, the amount and type of information initially exchanged ought to focus the disputed issues, streamline the discovery process, and minimize opportunities for gamesmanship. The Protocols are accompanied by a standing order for their implementation by individual judges in the pilot project, as well as a model protective order that the attorneys and the judge can use [as] a basis for discussion.

For example, among the many items the plaintiff is required to produce to the defendant are “diary, journal, and calendar entries maintained by the plaintiff concerning the factual allegations or claims at issue in this lawsuit,” and “the plaintiff’s current resume(s).”  Among the many items the defendant is required to produce to the plaintiff are “the plaintiff’s personnel file, in any form, maintained by the defendant, including files concerning the plaintiff maintained by the plaintiff’s supervisor(s), manager(s), or the defendant’s human resources representative(s), irrespective of the relevant time period” and “the plaintiff’s performance evaluations and formal discipline.”  

So now to the FJC’s study of the effect of the pilot project.  The FJC constructed a sample of 477 cases in the pilot program and a comparison sample (random and nationwide) of 672 recently-terminated cases alleging employment discrimination not in the pilot program.  Here are some of the results.  Please note that I constructed the table below based on the text in the FJC’s report:

 

Pilot cases

Non-pilot

cases

p value

(if given)

Number of cases

477

672

 

Mean disposition time in days

312

328

.241

Median disposition time in days

275

286

 

Case outcomes:

     

o   Settlement

51%

30%

 

o   Voluntary dismissal (which could include

settlement, but not clear from docket)

27%

35%

 

o   Dismissed on Rule 12 motion

7%

13%

 

o   Resolved by summary judgment

7%

12%

 

o   Trial

<1%

2%

 

o   Other (DWP, failure to exhaust)

7%

8%

 

Motions to dismiss filed

23%

31%

 

Motions for summary judgment filed

11%

24%

 

One or more discovery motions filed*

12%

21%

<.001**

*Includes motions to compel and motions for protective order (apparently includes only contested, not stipulated, motions for protective order).

**Statistically significant.

Some of these findings are cause for celebration.  There were significantly fewer discovery motions filed in the pilot cases.  The pilot cases were more likely to result in settlement.  The pilot cases were less frequently dismissed on motion or resolved by summary judgment.  Fewer such motions were even filed in the pilot cases.   

As for case disposition time, the FJC seems almost apologetic that pilot cases were resolved faster than, but not statistically significantly faster than, non-pilot cases, stating, “The pilot does not, in short, appear to have an appreciable effect on reducing delay.”  But whether pilot or non-pilot, these cases last about nine or ten months from filing to disposition.  How much faster does anyone want?  Having practiced law in the 1980s and 1990s (including in Illinois state courts), I’d like to suggest that this is a rocket docket.  Once we account for the preliminary time periods allowed by the FRCP (up to 90 days to serve the complaint after filing and then up to 90 days to issue the scheduling order), and add a standard six months to complete discovery, that’s what we get – nine or ten months.  Where’s the “delay”?  (Not blaming the FJC for using this term: it’s the mantra used by discovery “reformers.”)

The FJC is, as always, careful to note the limitations of its study.  First, judges are free to adopt or not adopt the protocols, so the pilot cases came from only ten districts, and 75% of the pilot cases were in Connecticut or the Southern District of New York.  Second, because the initial disclosures were not usually docketed (and under FRCP 5, they would not be required to be), the FJC could not determine whether the parties “actually complied with the discovery protocols and exchanged the required initial disclosures.”  Finally, “this report makes no claim that the only factor differing between the pilot and comparison cases was the pattern discovery in the former,” and “caution is warranted before concluding that the pilot program caused the above described differences between the pilot and comparison cases.”

In my opinion, the pattern discovery approach should be pursued in more types of cases.  Having experienced attorneys on both sides negotiate protocols to produce the types of documents and information repeatedly sought in discovery in a particular kind of case represents a far more sensible, concrete, and helpful approach to improving discovery than the adoption of a vague “proportionality” standard. 

February 8, 2016 in Discovery, Federal Courts | Permalink | Comments (1)

Friday, February 5, 2016

Registration Opens for 2016 SEALS Conference

Registration for the 2016 annual conference of the Southeastern Law Schools Association (SEALS) is now open.  The final program is available.  The conference will be held August 3-9, 2016 in Amelia Island, Florida. 

The programs that seem to relate most to civil procedure, litigation, and courts are (I apologize if I missed any):

Continue reading

February 5, 2016 in Conferences/Symposia | Permalink | Comments (0)

Bills to Curb Forced Arbitration, Split Ninth Circuit Introduced

A bill to prohibit corporations from forcing arbitration of certain disputes, Restoring Statutory Rights Act, S.2506, was introduced on February 4 by Senator Patrick Leahy (D-VT).

Separately, bills were introduced in both the House, H.R. 4457, and the Senate, S.2490, to divide the Ninth Judicial Circuit into two circuits.  The bills are sponsored by Republicans from Arizona.   

February 5, 2016 in Current Affairs, Federal Courts | Permalink | Comments (0)

Tuesday, February 2, 2016

New Study Finds "Stunning and Unacceptable Level of Randomly Distributed Justice"

Professor Gary Neustadter of Santa Clara University School of Law has posted on SSRN his article, Randomly Distributed Trial Court Justice: A Case Study and Siren from the Consumer Bankruptcy World.

Abstract:     

Between February 24, 2010 and April 23, 2012, Heritage Pacific Financial, L.L.C. (“Heritage”), a debt buyer, mass produced and filed 218 essentially identical adversary proceedings in California bankruptcy courts against makers of promissory notes who had filed Chapter 7 or Chapter 13 bankruptcy petitions. Each complaint alleged Heritage’s acquisition of the notes in the secondary market and alleged the outstanding obligations on the notes to be nondischargeable under the Bankruptcy Code’s fraud exception to the bankruptcy discharge. The notes evidenced loans to California residents, made in 2005 and 2006, which helped finance the purchase, refinancing, or improvement of California residential real property. When issued, the notes were secured by junior consensual liens on the real property, but subsequent foreclosure of senior consensual liens, precipitated by the mid-decade burst of the housing bubble, left the notes unsecured.

This article reports an empirical study of these bankruptcy adversary proceedings. Because the proceedings were essentially identical, they offer a rare laboratory for testing the extent to which our entry-level justice system measures up to our aspirations for “Equal Justice Under Law.” We are unlikely to find many conditions better suited to empirical exploration of that question: (1) civil litigation filed during a relatively brief time span by one plaintiff against 266 defendants (including co-defendant spouses); (2) some defendants defaulting, some defendants appearing pro se, and some represented by an attorney; (3) dispersal of the litigation among forty-seven different bankruptcy court judges, all sitting in one state (and thus, where applicable, required to apply the relevant substantive law of a single state); and (4) legal claims and factual allegations by the plaintiff so nearly identical that each dispute is resolvable on the basis of one obvious and straightforward factual question (reliance by an originating lender on a borrower’s misrepresentations) or on the basis of three less obvious and more complex legal rules (a California statutory limitation on fraud claims and two alternative varieties of a standing defense).

The results in the Heritage adversary proceedings evidence a stunning and unacceptable level of randomly distributed justice at the trial court level, generated as much by the idiosyncratic behaviors of judges, lawyers, and parties as by even handed application of law. We anticipate some randomly distributed justice as the inevitable byproduct of disparities in economic and other resources of the parties and disparities in the knowledge, capabilities, and attitudes of even well-meaning attorneys and judges acting reasonably in an imperfect system. We aspire, nonetheless, to equal justice under law. The findings of this study reflect a departure from that ideal on a scale both larger than we may have expected and larger than we should tolerate.

Hat tip: Jason Kilborn, who had high praise for this article: “The paths and outcomes of these materially identical cases are so different in so many surprising (and often disturbing) ways, the paper offers a really stunning look behind the curtain of our often arbitrary trial-level justice system. . . . The revelations in this paper are a gold mine for civil proceduralists, and it offers a cautionary tale and useful playbook for lawyers (and perhaps judges) in how to make many aspects of our system more effective.”

February 2, 2016 in Federal Courts, Recent Scholarship | Permalink | Comments (1)

Sunday, January 31, 2016

Bill to Federalize Trade Secrets Claims Moves Forward

A bill to extend federal jurisdiction to claims for theft of trade secrets, the Defend Trade Secrets Act of 2015 (S. 1890), has been reported out of committee to the full chamber.  Trade secrets are largely the subject of state law, and the federal courts currently lack jurisdiction of a claim for theft of trade secrets, unless there is diversity of citizenship or joinder with a transactionally-related federal-question claim such as trademark infringement.

The bill is co-sponsored by Republicans and Democrats.

The bill creates a civil action with original federal jurisdiction brought by “an owner of a trade secret that is misappropriated . . . if the trade secret is related to a product or service used in, or intended for use in, interstate or foreign commerce.”  The bill sets conditions for the “seizure of property necessary to prevent the propagation or dissemination of the trade secret that is the subject of the action.”

The bill would also create a cause of action by “a person who suffers damage by reason of a wrongful or excessive seizure.”

One of the remedies that is authorized is, of course, damages:

[a court may] (B) award—

(i)

(I) damages for actual loss caused by the misappropriation of the trade secret; and

(II) damages for any unjust enrichment caused by the misappropriation of the trade secret that is not addressed in computing damages for actual loss; or

(ii) in lieu of damages measured by any other methods, the damages caused by the misappropriation measured by imposition of liability for a reasonable royalty for the misappropriator’s unauthorized disclosure or use of the trade secret . . .

(As an aside: Could (B)(ii) be characterized as an award of statutory damages, currently under attack in the Supreme Court in Spokeo, Inc. v. Robins?)

A brief description of the bill’s background by David J. Kappos, former director of the United States Patent & Trademark Office, is in thehill.com.

January 31, 2016 in Current Affairs, Subject Matter Jurisdiction | Permalink | Comments (1)

Tuesday, January 26, 2016

Symposium Articles on Re-Assessing Civil Procedure Published

The Nevada Law Journal's current issue publishes a symposium entitled "Through a Glass Starkly: Civil Procedure Re-Assessed."  It contains numerous notable articles and essays:

 

Articles

Essays

Reflections
Steve Subrin

January 26, 2016 in Conferences/Symposia, Recent Scholarship | Permalink | Comments (0)

Monday, January 25, 2016

SCOTUS Decision in Montgomery v. Louisiana: Supreme Court Jurisdiction, State Courts, and Retroactivity

Today the Supreme Court issued a 6-3 decision in Montgomery v. Louisiana, which involves the retroactive effect of the Supreme Court’s 2012 decision in Miller v. Alabama (where the Court prohibited mandatory sentences of life without the possibility of parole for juveniles).

The case presented both an interesting question of Supreme Court jurisdiction in the context of state collateral review proceedings, and the perennial federal courts challenge of when a new constitutional right applies retroactively. The majority opinion authored by Justice Kennedy (joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Kagan & Sotomayor) concluded:

(1) The Supreme Court had jurisdiction to review a state court’s failure to recognize, in the context of state collateral review, a federal constitutional right that applies retroactively;

(2) Miller did announce “a substantive rule of constitutional law” that applies retroactively; and

(3) A state may remedy a Miller violation by extending parole eligibility to juvenile offenders.

The three dissenters were Justices Scalia, Thomas, and Alito, who disagreed both on jurisdiction and on the merits. Justice Scalia wrote a dissenting opinion that was joined by both Thomas and Alito, and Justice Thomas wrote a separate dissent as well.

Check out Lyle Denniston’s analysis on SCOTUSblog.

 

 

 

 

January 25, 2016 in Federal Courts, Recent Decisions, State Courts, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Friday, January 22, 2016

Article on Spokeo, Inc. v. Robins Now on St. Thomas Journal of Complex Litigation Website

I'm overcoming my reticence to post twice about one of my articles, because I want to promote the law students at St. Thomas University School of Law who have labored to establish the new St. Thomas Journal of Complex Litigation (JCL).  The final version of my article, "Spokeo, Inc. v. Robins: The Illusory 'No-Injury' Class Reaches the Supreme Court," has just been posted on the JCL website.  The abstract is available on SSRN here. 

The St. Thomas JCL is pleased to accept submissions through ExpressO or Scholastica from judges, attorneys, law faculty, and law students.  Information on submissions is here.   

 

 

January 22, 2016 in Class Actions, Recent Scholarship, Standing, Supreme Court Cases | Permalink | Comments (0)

Wednesday, January 20, 2016

Today’s SCOTUS Decision in Campbell-Ewald v. Gomez

The Supreme Court issued its decision today in Campbell-Ewald Co. v. Gomez, a closely watched case on class actions, Article III, and mootness (covered earlier here and here). Justice Ginsburg’s majority opinion begins:

Is an unaccepted offer to satisfy the named plaintiff ’s individual claim sufficient to render a case moot when the complaint seeks relief on behalf of the plaintiff and a class of persons similarly situated? This question, on which Courts of Appeals have divided, was reserved in Genesis HealthCare Corp. v. Symczyk, 569 U. S. ___, ___, ___, n. 4 (2013) (slip op., at 5, 6, n. 4). We hold today, in accord with Rule 68 of the Federal Rules of Civil Procedure, that an unaccepted settlement offer has no force. Like other unaccepted contract offers, it creates no lasting right or obligation. With the offer off the table, and the defendant’s continuing denial of liability, adversity between the parties persists.

Justice Ginsburg’s opinion is joined by Justices Kennedy, Breyer, Sotomayor, and Kagan. Justice Thomas adds a sixth vote, but writes a separate concurring opinion. Chief Justice Roberts writes a dissenting opinion, joined by Justices Scalia and Alito, and Justice Alito writes a dissenting opinion as well.

 

 

 

January 20, 2016 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Saturday, January 16, 2016

Advisory Committee Members Tout Rules Amendments on YouTube

We reported earlier that former and current members of the Civil Rules Advisory Committee (AC) are appearing in federal courthouses all over the country in an unprecedented "roadshow" produced by the ABA and the Duke Center for Judicial Studies that focuses on the proportionality amendments to the discovery rules.

Here's another step taken by former and current AC members that I believe to be unprecedented: they are starring in YouTube videos produced by the Federal Judicial Center.  (Yes, the federal judiciary has a YouTube channel!) 

There are five videos about the 2015 amendments. 

  1. Overview, by Judge David Campbell (chair of the AC until October 2015 and a member of the AC since 2005)
  2. Cooperation, by Judge Gene Pratter (member of the AC from 2011 to present).
  3. Proportional Discovery, by Judge John Koetl (member of the AC from 2007 to 2014 and chair of the Duke Subcommittee).
  4. Early and Active Case Management, also by Judge Campbell.
  5. Failure to Preserve Electronically Stored Information, by Judge Paul Grimm (member of the AC from 2009 to 2015 and chair of the Discovery Subcommittee).

Some observations, in no particular order:

  • In none of the videos do the speakers or the introductory frames indicate that they do not speak officially on behalf of the AC or the federal judiciary. In fact, there is every indication that are speaking officially.
  • If you only have time for one or two videos, watch Judge Campbell's overview and Judge Grimm’s ESI video. The other videos repeat a lot of the overview.
  • You might want to download the Swift app so that you can listen to the YouTube videos at faster than normal speed.
  • The videos do not provide any example of an actual case, anecdote, or even a hypothetical situation that might give some content to the abstract vagaries of “proportionality.”
  • None of the videos mentioned anything about the deletion of Rule 84 and the thirty-six forms that used to follow the rules.
  • An effort is made to reassure viewers that the change in the scope of discovery “is not intended to deprive any party of the evidence needed to prove its claim or defense. The intent is to eliminate excessive and unnecessary discovery.”
  • There is some revisionist history of the evolution of the proportionality amendments. Several speakers attempt to trace those amendments directly to conclusions reached at the 2010 Duke Conference.  But this attempt is belied by the Committee’s 2011 Report to the Chief Justice about the Duke Conference, which specifically stated that there was no need to change the scope of discovery in Rule 26.    
  • Several speakers mentioned three surveys prepared for the Duke Conference, those by the ABA Section of Litigation, the National Employment Lawyers Association, and the Fellows of the America College of Trial Lawyers. Strangely, though, these FJC-produced videos fail to mention the FJC's own studies for the Duke Conference, even though the Committee’s 2011 report to the Chief Justice recognized (note 2, page 3) that the FJC "study design has an important advantage" over the others.  (The FJC studies contained findings that suggested that no changes to discovery were needed.)

January 16, 2016 in Discovery, Federal Rules of Civil Procedure | Permalink | Comments (0)

Friday, January 15, 2016

SCOTUS Cert Grant in Microsoft v. Baker: Appellate Review of Orders Denying Class Certification

Today the Supreme Court granted certiorari in Microsoft Corp. v. Baker, limited to the following Court-generated question:

Whether a federal court of appeals has jurisdiction under both Article III and 28 U.S.C. § 1291 to review an order denying class certification after the named plaintiffs voluntarily dismiss their individual claims with prejudice.

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.

 

 

January 15, 2016 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Thursday, January 14, 2016

Submission Deadline for the Second Annual Civil Procedure Workshop

As we covered earlier, the second annual Civil Procedure Workshop will be held this summer at the University of Washington in Seattle (July 14-15, 2016). If you’d like to present a paper for discussion, submit your two-page abstract by Friday, January 15.

More details here.

 

 

 

January 14, 2016 in Conferences/Symposia | Permalink | Comments (0)

Tuesday, January 12, 2016

Ninth Circuit Vacates Order to Seal Records in Chrysler Defect Case

The Ninth Circuit yesterday overturned an order to seal court records in a case involving an alleged automobile safety defect.  The Center for Auto Safety v. Chrysler Group, LLC, No. 15-55084 (9th Cir. Jan. 11, 2016). 

From the summary prepared by the court’s staff:

The panel vacated the district court’s order denying The Center for Auto Safety’s motions to intervene and unseal documents filed to support and oppose a motion for preliminary injunction in a putative class action between Chrysler Group, LLC and certain named plaintiffs, and remanded for further proceedings.

. . .

The panel presumed that the instant motion for preliminary injunction was technically nondispositive.  The panel held that public access to filed motions and their attachments did not depend on whether the motion was technically “dispositive;” but rather, public access turned on whether the motion was more than tangentially related to the merits of the case.  The panel concluded that plaintiffs’ motion for preliminary injunction was more than tangentially related to the merits.  The panel remanded for the district court to consider the documents under the compelling reasons standard.

The case is discussed on the Public Justice blog in a post by Jennifer Bennett, who argued the case for the intervenor, The Center for Auto Safety. 

Hat tip: Paul Bland, Shawn Shaughnessy

January 12, 2016 in Discovery, Recent Decisions, Weblogs | Permalink | Comments (0)

Monday, January 11, 2016

Reminder: Deadline to Submit Abstract for Civil Procedure Workshop is January 15

The second annual Civil Procedure Workshop, to be cohosted by the University of Washington School of Law, Seattle University School of Law, and the University of Arizona James E. Rogers College of Law, will be held at the University of Washington in Seattle on July 14-15, 2016.

Information from the organizers is as follows:

The Workshop gives both emerging and established civil procedure scholars an opportunity to gather with colleagues and present their work to an expert audience. Scholars will present their papers in small panel sessions. A senior scholar will moderate each panel and lead the commentary. In addition to paper presentations, we intend to engage members of the judiciary and federal civil rulemaking bodies in discussions about current developments in procedure. Our goal is for the Workshop to strengthen the study of procedure as an academic discipline, and to deepen ties among the academy, rulemakers, and the judiciary. Confirmed participants for 2016 include Robert Bone, Sergio Campos, David Engstrom, Samuel Issacharoff, Alexandra Lahav, Alexander Reinert, the Hon. Lee Rosenthal, Joanna Schwartz, and Adam Steinman.

We welcome all civil procedure scholars to attend this Workshop. Those wishing to present a paper for discussion in the Workshop should submit a two-page abstract by January 15, 2016. While we welcome papers from both emerging and senior scholars, preference may be given to those who have been teaching for less than ten years. We will select papers to be presented by March 1, 2016. Please send all submissions or related questions to Liz Porter.

The workshop will provide meals for registrants. Participants must cover travel and lodging costs. We will provide information about reasonably priced hotels as the date approaches.

Feel free to contact us with questions.

Liz Porter (UW), egporter@uw.edu

Brooke Coleman (Seattle U), colemanb@seattleu.edu
Dave Marcus (Arizona), dmarcus@email.arizona.edu

January 11, 2016 in Conferences/Symposia | Permalink | Comments (0)

Sunday, January 10, 2016

House Passes Bill Aimed to Stifle Class Actions

On January 8, the House of Representatives passed the Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act of 2016.  (The L.A. Times called the "fairness in class action" part of the title "Orwellian" and "shameless[].")

For additional coverage of the bill, see our post from last Friday.

The bill goes to the Senate next for consideration.  

 

January 10, 2016 in Class Actions, Current Affairs, Mass Torts, MDLs | Permalink | Comments (1)

Friday, January 8, 2016

House to Vote on Bill Strictly Limiting Class Actions

The House of Representatives is close to taking up a bill (H.R. 1927) that some are calling the "Volkswagen bail-out bill" due to its stymieing effect on class actions.  Another part of the bill, the Huffington Post charges, "would force the online disclosure of sensitive personal information of sick and dying asbestos victims seeking compensation for their illnesses."

When we last reported on this bill, it dealt only with class actions.  That bill has now been amended and combined with another bill on asbestos claims, resulting in the "Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act of 2015." 

The latest draft of the portion of the bill on class actions reads as follows:

SEC. 2. FAIRNESS IN CLASS ACTION LITIGATION.

(a) IN GENERAL.—No Federal court shall certify any proposed class seeking monetary relief for personal injury or economic loss unless the party seeking to maintain such a class action affirmatively demonstrates that each proposed class member suffered the same type and scope of injury as the named class representative or representatives.

(b) CERTIFICATION ORDER.—An order issued under Rule 23(c)(1) of the Federal Rules of Civil Procedure that certifies a class seeking monetary relief for personal injury or economic loss shall include a determination, based on a rigorous analysis of the evidence presented, that the requirement in subsection (a) of this section is satisfied.

The House Judiciary Committee has issued House Report 114-328 on the class action portion of the bill.  The Democrats opposing the bill stated in their dissenting views that the bill is “a solution in search of a problem” and “represents the latest attempt to shield corporate wrongdoers and deny plaintiffs access to justice.”  They concluded: 

H.R. 1927 is an unnecessary bill that threatens to deny millions of plaintiffs access to Federal courts by creating potentially insurmountable obstacles to class action certification and raising litigation costs. Moreover, it disrespects the Federal courts by imposing new burdens on them and by circumventing the congressionally created Rules Enabling Act process by which Federal civil procedure rules are amended after extensive input from the bench and bar.

Meanwhile, at the annual meeting of the Association of American Law Schools, members of the Advisory Committee on Civil Rules are scheduled to discuss potential class actions reforms today.  I am not at the conference this year, and would be interested to learn if anyone mentions H.R. 1927 and how that bill might relate to proposals before the Advisory Committee. 

The House yesterday passed a resolution limiting amendments to and debate on the bill.

Professor Alexandra D. Lahav testified against the bill last April.  

 

 

January 8, 2016 in Class Actions, Current Affairs, Mass Torts | Permalink | Comments (0)

Thursday, January 7, 2016

Now on JOTWELL: Effron on Moore on the 2015 FRCP Amendments