Friday, May 23, 2008

Case Watch: In Re: Volkswagen of America

Yesterday, the Fifth Circuit heard en banc oral argument in In Re: Volkswagen of America.    Of interest in the case is this amicus brief, signed by 14 law professors, filed in support of respondents.  The issue concerns the proper transfer standard under 28 U.S.C. s1404, and Counsel of Record for the amicus is Professor Lonny S. Hoffman from the University of Houston. This link takes you to all the briefs.  --RR


Update:  Today's Texas Lawyer contains this writeup on the case (Hat Tip to Lonny Hoffman).

May 23, 2008 | Permalink | Comments (1) | TrackBack (0)

Thursday, May 22, 2008

Katrina Still Making Waves

I wish I had brought this case to your attention a bit sooner (better late than never, I suppose), but the Fifth Circuit issued an opinion last month you might want to take a look at.  In Louisiana v. AAA Insurance, the court addressed whether a state, as one of the plaintiffs in a class action suit, can invoke Sovereign Immunity to bar removal to federal court. In this case, the State of Louisiana, along with many citizens filed suit against state insurance companies who failed to pay claims following Hurricane Katrina. The insurance companies removed the case to federal court. Louisiana argued that since it filed suit in state court under state law, the case should be remanded to state court even though it was only one member of the class. Ultimately, the Court held that any immunity the State may have cannot be conferred by the State upon the prosecution of suits by private citizens.  The Fifth Circuit affirmed the district court's denial of the plaintiff's motion to remand.--Counseller/eh 

May 22, 2008 | Permalink | Comments (0) | TrackBack (0)

My State's High Court is Better Than Yours!

Profs Choi, Gulati, and Posner have posted on SSRN their new article, Which States Have the Best (and Worst) High Courts?, which ranks the high courts of the fifty states based on their performance between 1998-2000. Criteria used to evaluate the courts include opinion quality, independence, and productivity. Here is a link to a page that includes an abstract of the article and a link to download the full text article.--Counseller/md

May 22, 2008 | Permalink | Comments (0) | TrackBack (3)

Wednesday, May 21, 2008

SCOTUS Watch: May 22 Conference (Updated)

On Thursday, May 22, 2008, the Supreme Court will hold a conference to consider petitions in a number of cases, including several of interest to CivPro folks. 

T-Mobile USA, Inc., et al. v. Laster, et al., 07-976:  Whether, under the Federal Arbitration Act, federal courts may refuse to enforce class-action bans in consumer contract arbitration provisions on grounds they are unconscionable under state law.

Rosenruist-Gestao E Servicos LDA v. Virginia Enterprise Limited, 07-1214:  Whether, under 35 U.S.C. 24, a trial judge may subpoena foreign witnesses for deposition in the United States based on their filing of an application with the Patent and Trademark office.

Philip Morris USA, Inc. v. Williams, 07-1216: Whether the Supreme Court of Oregon, on remand from the Court’s 2007 decision on the constitutionality of a $79.5 million punitive damages award based on harms done to non-named plaintiffs, improperly asserted a state law procedural bar having the effect of precluding Phillip Morris from asserting a constitutional claim.

Republic of Iraq v. Beaty, 07-1090, whether U.S. courts have jurisdiction over Iraq in cases involving alleged misdeeds during the the Hussein regime.

A complete list of the cases to be considered at the conference, along with links to the opinions below and parties’ briefs for all cases, is available on SCOTUS Blog.--Counseller/nm

May 21, 2008 | Permalink | Comments (0) | TrackBack (1)

Tuesday, May 20, 2008

D.C. Cir: U.S. Currency Discriminates Against Blind

This morning the D.C. Circuit issued its opinion in The American Council of the Blind v. Paulson in which it held that U.S. currency discriminates against the visually impaired in violation of the Rehabilitation Act, 29 U.S.C. s 794.  Here is the full opinion.  CNN has a short piece on the opinion here and Time has one here.  Here's the court's introduction.

The Secretary of the Treasury appeals the declaratory judgment that the Treasury Department’s failure to design and issue paper currency that is readily distinguishable to the visually impaired violates section 504 of the Rehabilitation Act, 29 U.S.C. § 794. The Secretary contends that various coping mechanisms that enable the visually impaired to use U.S. currency, as well as the availability of portable currency readers to identify denominations and credit cards as an alternative to cash, demonstrate that there is no denial of meaningful access to currency. Consequently, the Secretary maintains that the district court erred in finding to the contrary and should not have reached the question of whether identified accommodations would impose an undue burden.  Alternatively, assuming a denial of meaningful access, the Secretary contends that the district court erred in validating identified accommodations in view of their added costs and the burden on the public.

As we all know, the Treasury has been issuing redesigned currency for the last several years.  The plaintiff's point seems to be that, if the Treasury is going to redesign the currency, it should do so in a way that allows the visually impaired to distinguish the denominations.  Here are some interesting facts the court cites about other foreign currencies. 

Of the 171 authorities issuing currency identified by the1995 NRC Report, only the United States prints bills that are identical in size and color in all denominations. Of the issuing authorities, 128 use paper currency that varies in size between some denominations, 24 use large numerals, 167 use different color schemes for each denomination, and 23 incorporate tactile features. In total, more than seventy-eight percent (78%) of authorities surveyed issued paper currency in which at least some denominations could be identified by those with no vision, either by means of tactile features or size variations. Since 1995, Canada has redesigned its currency to include embossed dots that vary by denomination, and the Euro, introduced in 2002, has incorporated a foil feature perceptible to touch.

The D.C. Court of Appeals remanded the case for a determination of whether the Plaintiffs are entitled to injunctive relief.  We don't yet know what the final result of this litigation will be, but we know what the plaintiffs want.  The district court opinion makes clear that the plaintiffs demand, inter alia, 1) a permanent injunction prohibiting the Treasury from continuing to manufacture bank notes in the present manner; 2) a permanent injunction requiring bank notes to be designed with features making them accessible to the visually impaired; and 3) a detailed corrective action plan submitted by the Treasury to the court for approval.  Independent of this litigation, the Treasury plans to redesign currency every seven to ten years.  At a minimum, it seems reasonable on the next go-round to design the currency in such a way that allows the visually impaired to distinguish the various denominations.--Counseller

May 20, 2008 | Permalink | Comments (0) | TrackBack (3)

Inquiry into the Merits at the Class Certification Stage

You might want to give In re New Motor Vehicles Canadian Export Antitrust Litigation a read. The First Circuit discusses the degree of inquiry into the merits that is required at the class certification stage. The Supreme Court has yet to rule on the issue and there is currently a split between the circuits. Here, the First Circuit held that when a Rule 23 requirement relies on a novel or complex theory as to injury, the district court must engage in a searching inquiry into the viability of that theory and the existence of the facts necessary for the theory to succeed. The Federal Civil Practice Bulletin has pulled some of the more significant passages from the case, but if you want to read the entire opinion here is a link. --Counseller/md

May 20, 2008 | Permalink | Comments (0) | TrackBack (4)

Monday, May 19, 2008

Solicitor General Urges Court to Refuse Review of Collateral Order Doctrine Case

On Friday, the United States Solicitor General urged the court to refuse to hear Exxon Mobil, et al., v. Doe, et al. (07-81), a lawsuit filed by Indonesians who claim guards at an Exxon Mobil natural gas plant abused them.  The appeal seeks a determination of “whether a district court’s denial of a private defendant’s motion to dismiss state-law tort claims on the ground that the litigation will interfere with the Nation’s foreign relations is immediately appealable under the collateral order doctrine.”  According to Sol. Gen. Paul Clement, the D.C. Circuit Court went too far in limiting the types of cases in which an immediate appeal may be pursued.

SCOTUS Blog has more on this case, along with a link to the government’s amicus brief, here.--Counseller/nm 

May 19, 2008 | Permalink | Comments (0) | TrackBack (0)