Friday, June 4, 2010
Prof. Linda Mullenix (Texas) has a piece this week in the National Law Journal entitled "Federal class actions don’t yield to state laws" that examines the recent Supreme Court decision in Shady Grove Orthopedic v. Allstate Insurance (covered earlier here). It begins:
"In a significant appeal decided on March 31 — largely ignored by the media — a plurality of justices in Shady Grove Orthopedic Associates P.A. v. Allstate Insurance Co. rescued federal class actions from withering demise at the hands of the states. The media are to be forgiven, however, as Shady Grove turned on a nuanced Erie problem, a jurisprudential doctrine that defies witty sound bites and easy summarization. Even Justice Antonin Scalia, delivering the plurality opinion, noted: 'Eyes glaze over.'"
Thursday, June 3, 2010
Hello, Blog Readers.
Next week many of you will be converging on New York City for the AALS Mid-Year Meeting which features the civil procedure workshop. In honor of this momentous event, we here at the Civil Procedure and Federal Courts Profs Blog invite you to join us for happy hour on Friday, June 11 at 7:00 P.M. at Ardesia (52nd St. between 10th and 11th Avenues).
A short walk from the Sheraton Hotel where the conference is being held, Ardesia is a lovely wine bar offering many interesting selections by the glass. For those of your who don't like wine, draft and bottled beer are also served. The kitchen puts out a number of tasty items, including house-made
We hope to see many of you there!
Wednesday, June 2, 2010
A few months ago, the lawyers representing the first responders, recovery workers, and contractors at Ground Zero came to a draft settlement with lawyers for NYC, the captive insurer, and other defendants. After the parties presented the proposed settlement to the court, Judge Hellerstein more or less rejected the deal, prompting criticism from some lawyers and scholars as to his authority to "reject" a settlement for a case that is not a class action.
Now the lawyers for the plaintiffs have offered to reduce their attorneys fees --an earlier sticking point for Judge Hellerstein -- so that more money would go directly to the plaintiffs. The original settlement provided for 30% or more of the settlement to go to the attorneys in fees. The new proposal would cap fees at 20%.
The Associate Press reports more here.
Prof. Kevin Clermont (Cornell) has posted on SSRN his essay Three Myths About Twombly-Iqbal. Here's the abstract:
This essay tries to convey the meaning of the recent revolutionary cases on federal pleading law. To do so, it refutes the three leading myths about the Twombly and Iqbal cases and thereby establishes these three propositions: First, the Supreme Court has not revived code-based fact pleading. This first conclusion implies that the codes’ law/fact distinction plays no role in applying the new screening of allegations for conclusoriness, and it also implies that the courts should not apply the new test for plausibility to each allegation but only to the ultimate assertion of liability. Second, we academics must beware of overstating the scope of the new cases. Their holdings apply only to claimants’ pleadings, and indeed only to allegations on the merits. Third, we must also beware of reading optimistically the opinions’ evident confusions to infer an aimless Court. Its rather steady purpose indicates that the Justices mean business as pleading revolutionaries.
Professor Michael C. Bromby (Glasgow Caledonian University Department of Law) has posted "The Temptation to Tweet--Jurors' Activities Outside the Trial" on SSRN.
The abstract states:
Tuesday, June 1, 2010
A very interesting and puzzling development in Comer v. Murphy Oil USA, a class action lawsuit against a number of chemical and energy companies. As a three-judge Fifth Circuit panel described the case: "The plaintiffs allege that defendants’ operation of energy, fossil fuels, and chemical industries in the United States caused the emission of greenhouse gasses that contributed to global warming, viz., the increase in global surface air and water temperatures, that in turn caused a rise in sea levels and added to the ferocity of Hurricane Katrina."
The district court dismissed the case on political question grounds, but a Fifth Circuit panel reversed [585 F.3d 855 (2009)]. The en banc Fifth Circuit granted rehearing, although due to several recusals only nine of the sixteen Fifth Circuit judges were able to vote. That's when things got complicated. According to last Friday's order:
"After the en banc court was properly constituted, new circumstances arose that caused the disqualification and recusal of one of the nine judges, leaving only eight judges in regular active service, on a court of sixteen judges, who are not disqualified in this en banc case. Upon this recusal, this en banc court lost its quorum."
The result, however, was not to revert to the Fifth Circuit panel's decision, which would have reversed the district court's dismissal and remanded the case for further proceedings. Rather the appeal was dismissed in its entirety, thereby reinstating a district court ruling that had already been unanimously reversed by a three-judge Fifth Circuit panel. Over a number of dissents, a majority of the quorum-less en banc Fifth Circuit reasoned:
"This court declares that because it has no quorum it cannot conduct judicial business with respect to this appeal. This court, lacking a quorum, certainly has no authority to disregard or to rewrite the established rules of this court. There is no rule that gives this court authority to reinstate the panel opinion, which has been vacated. Consequently, there is no opinion or judgment in this case upon which any mandate may issue. 5TH CIR. R. 41.3. Because neither this en banc court, nor the panel, can conduct further judicial business in this appeal, the Clerk is directed to dismiss the appeal."
It emphasized, however, that the plaintiffs retain "the right to petition the Supreme Court of the United States."
(Hat Tip: Brad Mank)
Monday, May 31, 2010
Stephen J. Choi (NYU School of Law), G. Mitu Gulati (Duke University School of Law) and Eric Posner (University of Chicago Law School) have posted Judicial Ability and Securities Class Actions to SSRN.
We exploit a new data set of judicial rulings on motions in order to investigate the relationship between judicial ability and judicial outcomes. The data set consists of federal district judges’ rulings on motions to dismiss, to approve the lead plaintiff, and to approve attorneys’ fees in securities class actions cases, and also judges’ decisions to remove themselves from cases. We predict that higher-quality judges, as measured by citations, affirmance rates, and similar criteria, are more likely to dismiss cases, reject lead plaintiffs, reject attorneys’ fees, and retain cases rather than hand them over to other judges. Our results are mixed, providing some but limited evidence for the hypotheses.