Civil Procedure & Federal Courts Blog

SCOTUS Denies Cert. After Staying $250M+ Class Action Judgment

This week the Supreme Court denied certiorari in Philip Morris USA Inc. v. Jackson (No. 10-735), a case from Louisiana state court involving a quarter-billion-dollar class action judgment against several tobacco companies.

As covered back in September, the case was notable because of Justice Scalia’s Opinion in Chambers (issued in his capacity as Circuit Justice for the Fifth Circuit) granting a stay to allow the defendants time to file a petition for certiorari challenging the judgment on due process grounds. At the time, Justice Scalia wrote: “I think it reasonably probable that four Justices will vote to grant certiorari, and significantly possible that the judgment below will be reversed.” He also wrote:

The extent to which class treatment may constitutionally reduce the normal requirements of due process is an important question. National concern over abuse of the class-action device induced Congress to permit removal of most major class actions to federal court, see 28 U. S. C. §1332(d), where they will be subject to the significant limitations of the Federal Rules. Federal removal jurisdiction has not been accorded, however, over many class actions in which more than two-thirds of the plaintiff class are citizens of the forum State. See §1332(d)(4). Because the class here was drawn to include only residents of Louisiana, this suit typifies the sort of major class action that often will not be removable, and in which the constraints of the Due Process Clause will be the only federal protection. There is no conflict between federal courts of appeals or between state supreme courts on the principal issue I have described; but the former seems impossible, since by definition only state class actions are at issue; and the latter seems implausible, unless one posits the unlikely case where the novel approach to class-action liability is a legislative rather than judicial creation, or the creation of a lower state court disapproved by the state supreme court on federal constitutional grounds. This constitutional issue ought not to be permanently beyond our review.

The Supreme Court had apparently been holding the Philip Morris cert. petition pending its decision in Wal-Mart v. Dukes, and some speculated that the Court would either grant certiorari or GVR the case for reconsideration by the Louisiana courts in light of Wal-Mart. Ultimately, the Court simply denied certiorari.

For more coverage, see the Associated Press (Mark Sherman) and SCOTUSblog (Lyle Denniston).

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Senate Judiciary Committee holds hearing on Wal-Mart v. Dukes and other recent SCOTUS decisions

            The Senate Judiciary Committee (Senator Patrick Leahy, Chair) held a hearing this morning on “Barriers to Justice and Accountability: How the Supreme Court’s Recent Rulings Will Affect Corporate Behavior.  A webcast of the hearing as well as the witnesses’ prepared statements are found on Senator Leahy’s web site at   http://judiciary.senate.gov/hearings/hearing.cfm?id=3d9031b47812de2592c3baeba607fb62.

            Summarizing several recent SCOTUS decisions, Senator Leahy remarked that the Supreme Court’s recent decisions makes one wonder whether some corporations are “too big to be held accountable.”  A portion of his prepared statement provides: "American consumers and employees rely on the law to protect them from fraud and discrimination. They rely on the courts to enforce those laws intended to protect them. Unfortunately, these protections are being eroded by what appears to be the most business-friendly Supreme Court in the last 75 years.  Last week, in Wal-Mart v. Dukes, five men on the Supreme Court disqualified the claims of 1.5 million women who had spent nearly a decade seeking justice for sex discrimination by their employer, Wal-Mart. . . . Earlier this month, in Janus Capital v. First Derivative Traders, the same five justices gave corporations another victory by shielding them from accountability even when they knowingly lie to their investors.  . . Two months ago, in AT&T v. Concepcion, the Supreme Court, in another 5-4 opinion, held that companies can take advantage of the fine print on telephone bills and other contracts to bar customers from bringing class action lawsuits."  http://judiciary.senate.gov/hearings/testimony.cfm?id=3d9031b47812de2592c3baeba607fb62&wit_id=3d9031b47812de2592c3baeba607fb62-0-1

             Betty Dukes, lead plaintiff, testified:  "After 17 years of working in the same place, I have encountered and seen many disparities and many ways in which women have been treated differently than men. . . .  Because I was aware that the disparities in treatment that I saw affected many more women than just me, I decided to bring this lawsuit. I filed this class action lawsuit in June 2001. Through the lawsuit, we have found a lot of evidence that Wal-Mart managers and executives have viewed women as less valuable workers than men. Managers at stores around the country, for example, have openly explained they were paying men more than women because they believe men have families to support while women do not. Managers have also justified their preference for selecting men for management jobs by telling women that men make better managers in retail work and that women should stay home with their families.  In fact, when another of the plaintiffs who worked at a different store found out a male co-worker in the same position was making $10,000 a year more, she was told to bring in her household budget so her manager could decide whether she deserved to receive as much pay as the co-worker. Even then her salary remained far below his."  http://judiciary.senate.gov/pdf/11-6-29%20Dukes%20Testimony.pdf

             Andrew Pincus, a partner at Mayer Brown LLP, testified that a review of recent decisions indicated that private plaintiffs and businesses have had an equal win-loss record in the Supreme Court.  Further, Mr. Pincus stated, the plaintiffs’ positions in the cases that were lost in the Supreme Court “departed very substantially from existing law.”  Finally, Mr. Pincus urged the Committee not to listen to any dire warnings about the impact of the recent SCOTUS decisions because those predictions are “highly likely to be incorrect.”  As an example, Mr. Pincus cited the predictions of reduced access to justice following Ashcroft v. Iqbal, which the recent study by the Federal Judicial Center had “proven wrong.”  http://judiciary.senate.gov/pdf/11-6-29%20Pincus%20Testimony.pdf

             (As an aside, one of my next postings will be a critique of that Federal Judicial Center study.  Stay tuned.)

             Professor Melissa Hart (U. Colo. School of Law) testified: "What is clear is that in the future every employment discrimination class action will be evaluated in light of the current Court‘s hostility to class litigation. The decision will thus have a significant chilling effect on the collective adjudication of civil rights claims that has been an essential aspect of full enforcement of the law.  Moreover, by making class action employment challenges significantly harder to pursue, the Court‘s decision takes pressure off of employers to monitor their own employment practices. Laws prohibiting discrimination are only as effective as the means available to enforce those laws. If systemic discrimination claims of the sort presented in Wal-Mart are no longer permitted, employers’ incentives to adopt strong internal systems for preventing discriminatory decisionmaking are considerably diminished. One of the important successes of the Wal-Mart case itself is instructive: in the years since the suit was first filed, Wal-Mart has changed many of the practices that the plaintiffs pointed to as causes of gender disparities at the company." http://judiciary.senate.gov/pdf/11-6-29%20Hart%20Testimony.pdf

             Two other witnesses also testified, one in support of Senator Leahy’s thesis (James Fox, Duke School of Law, http://judiciary.senate.gov/pdf/11-6-29%20Cox%20Testimony.pdf ) and one against (Robert Alt, The Heritage Foundation, http://judiciary.senate.gov/pdf/11-6-29%20Alt%20Testimony.pdf). 

            In questions following the prepared statements, Senator Leahy asked Ms. Dukes what united her and other women employees at Wal-Mart.  She answered:

 "Wal-Mart is a vast corporation. . . We work in an environment that is very unfair in its treatment of its employees.  . . . We are trying to unite without having to be under the intimidation of losing your job just because you speak out.  We are in a very intimidating environment.  So this avenue was one that would have allowed us, without the fear of retribution, to come forth and have our complaints addressed." 

            “Are you going to give up now?” Senator Leahy asked.  “Absolutely not.  The best is yet to come,” replied Ms. Dukes. 

--PHM

The Colbert Report on Wal-Mart v. Dukes

Or maybe that should be Wal-Mart v. Dukes on The Colbert Report. Anyway, video available here.

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Wasserman on this Week's Personal Jurisdiction Decisions

Over at Prawfsblawg, Professor Howard Wasserman (Florida International) has a post entitled Clarifying personal jurisdiction . . . or not, which discusses Monday’s Supreme Court decisions in Goodyear v. Brown and J. McIntyre v. Nicastro.

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Federal Civil Procedure question from February 2011 bar exam

The National Conference of Bar Examiners released (last month) a Federal Civil Procedure question from the February 2011 administration of the Multistate Essay Examination, available at http://www.ncbex.org/multistate-tests/mee/mee-sample-questions/criminal-law-question/.

Is it just me, or is this question really easy?  I suspect that my students would dance in the streets if I gave them something that clear-cut on the final exam. 

Unlike some in the academy, I have never been opposed to considering bar preparation as a far-off, indirect goal of my class, but I’m afraid if I gave them something like this in the first year, they would give up studying.  It would be hard to impress on them the different purposes of the bar exam and the final exam (and dare I say the real-life practice of civil litigation?).

While I’m at it, the NCBE’s bare-bones outline of Federal Civil Procedure is at http://www.ncbex.org/multistate-tests/mee/subject-matter-outlines/federal-civil-procedure/.  This tidy summary surely took me down a notch.  It may be something to consider for those unfortunate souls with less than six credit hours who must make tough choices about course content.

--PHM

 

Guest Blogger: Welcome Patricia Hatamyar Moore

Welcome to Professor Patricia Hatamyar Moore who will be guest blogging with us this summer.

Many of you already know her as the Lao Tzu of Twiqbal from her widely cited article The Tao of Pleading: Do Twombly and Iqbal Matter Empirically? 

We look forward to Professor Moore's contributions to the blog.

- Robin, Adam, and Cindy

Senate Judiciary Committee to hold hearing tomorrow on Wal-Mart v. Dukes and other cases

The chairman of the Senate Judiciary Committee, Patrick Leahy (D-Vt), has announced a hearing tomorrow, June 29, at 10:30 a.m. on “Barriers to Justice and Accountability: How the Supreme Court’s Recent Rulings Will Affect Corporate Behavior.”  One of the recent Supreme Court cases to be examined is Wal-Mart v. Dukes. 

Betty Dukes, the lead plaintiff in that case, is scheduled to testify, as well as Professor Melissa Hart (University of Colorado Law School) and Andrew Pincus (Mayer Brown). 

Senator Leahy’s post is at http://leahy.senate.gov/press/press_releases/release/?id=dbc38a94-82f0-4bc0-903a-648176f966a7.

--PHM

Another SCOTUS Cert Grant on Preemption: National Meat v. Harris

There have been several preemption decisions this Term (see here, here, and here), and the Court granted cert in another preemption case earlier this month. Yesterday it added one more to the list, granting certiorari in National Meat Assoc. v. Harris (No. 10-224), which presents the following questions:

The Federal Meat Inspection Act ("FMIA"), as amended by the Wholesome Meat Act of 1967 and the Humane Methods of Slaughter Act, comprehensively regulates the "premises, facilities, and operations" of slaughterhouses where meat is prepared for human consumption. Since the passage of the Wholesome Meat Act, the FMIA has expressly preempted state regulations "in addition to, or different than" federal regulations. 21 U.S.C. § 678. . . . In 2008, California passed a law - the provisions of which were later considered and expressly rejected by federal regulators - requiring federally-inspected slaughterhouses to "immediately euthanize" any nonambulatory animal on its premises, thereby eliminating important federally-required ante-mortem inspection of possibly diseased animals. . . .

1. Did the Ninth Circuit err in holding that a "presumption against preemption" requires a "narrow interpretation" of the FMIA's express preemption provision, in conflict with this Court's decision in Jones v. Rath Packing Co., 430 U.S. 519, 540 (1977), that the provision must be given "a broad meaning"?

2. Where federal food safety and humane handling regulations specify that animals (here, swine) which are or become nonambulatory on federally-inspected premises are to be separated and held for observation and further disease inspection, did the Ninth Circuit err in holding that a state criminal law which requires that such animals not be held for observation and disease inspection, but instead be immediately euthanized, was not preempted by the FMIA?

3. Did the Ninth Circuit err in holding more generally that a state criminal law which states that no slaughterhouse may buy, sell, receive, process, butcher, or hold a nonambulatory animal is not a preempted attempt to regulate the "premises, facilities, [or] operations" of federally-regulated slaughterhouses?

The Supreme Court docket is here, and you can find links to the cert-stage filings at SCOTUSblog’s case file.

--A

Tort Reform, HBO Style

Last night, HBO premiered a documentary called Hot Coffee.  This film, by Susan Saladoff, explores the American reaction to the much maligned McDonald's hot coffee case in which a jury awarded $2.86 million in punitive damages.  As all good civ pro profs know, that award was set aside by the judge and the parties settled for a lower sum.  But, somehow, this case became a lightening rod for the tort reform crowd and critics of our "litigious" nation.

Reviews of the documentary are positive.  Here is the review in The Washington Post, and one from the New York Times.  Not all reviewers were convinced though, including one from the Miami Herald who believes that the film is "fundamentally dishonest."  I'll leave it up to readers to decide whether this is a film worth recommending to our students.

RJE

SCOTUS Decision in Goodyear v. Brown

Today the Supreme Court issued its decision in Goodyear Dunlop Tires Operations, S.A. v. Brown (No. 10-76), one of two decisions on personal jurisdiction that the Court released during its final public session of the October 2010 Term. Goodyear is a unanimous decision (in contrast to the 4-to-2-to-3 split in J. McIntyre Machinery v. Nicastro). Justice Ginsburg writes the Opinion of the Court.

Goodyear considers whether North Carolina courts could exercise jurisdiction based on a theory of general jurisdiction, which is proper where “the continuous corporate operations within a state [are] so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities.” [Slip Op. 7 (quoting International Shoe)]. From the opinion:

To justify the exercise of general jurisdiction over petitioners, the North Carolina courts relied on the petitioners’ placement of their tires in the “stream of commerce.” The stream-of-commerce metaphor has been invoked frequently in lower court decisions permitting “jurisdiction in products liability cases in which the product has traveled through an extensive chain of distribution before reaching the ultimate consumer.” Typically, in such cases, a nonresident defendant, acting outside the forum, places in the stream of commerce a product that ultimately causes harm inside the forum. [Slip Op. 9 (citations omitted)]

In this case, however, “both the act alleged to have caused injury (the fabrication of the allegedly defective tire) and its impact (the accident) occurred outside the forum.” Accordingly, “[t]he North Carolina court’s stream-of-commerce analysis elided the essential difference between case-specific and all-purpose (general) jurisdiction.” [Slip Op. 10].

Flow of a manufacturer’s products into the forum, we have explained, may bolster an affiliation germane to specific jurisdiction. But ties serving to bolster the exercise of specific jurisdiction do not warrant a determination that, based on those ties, the forum has general jurisdiction over a defendant. A corporation’s “continuous activity of some sorts within a state,” International Shoe instructed, “is not enough to support the demand that the corporation be amenable to suits unrelated to that activity.” [Slip Op. 10-11]

The opinion then examines the facts of Goodyear through the prism of the Supreme Court’s key precedents on general jurisdiction. It concludes:

Measured against Helicopteros and Perkins, North Carolina is not a forum in which it would be permissible to subject petitioners to general jurisdiction. Unlike the defendant in Perkins, whose sole wartime business activity was conducted in Ohio, petitioners are in no sense at home in North Carolina. Their attenuated connections to the State fall far short of the “the continuous and systematic general business contacts” necessary to empower North Carolina to entertain suit against them on claims unrelated to anything that connects them to the State. Helicopteros, 466 U. S., at 416. [Slip Op. 13]

The Court refused to consider another potential theory of jurisdiction, on the ground that the plaintiffs failed to properly raise it:

Respondents belatedly assert a “single enterprise” theory, asking us to consolidate petitioners’ ties to North Carolina with those of Goodyear USA and other Goodyear entities. In effect, respondents would have us pierce Goodyear corporate veils, at least for jurisdictional purposes. Neither below nor in their brief in opposition to the petition for certiorari did respondents urge disregard of petitioners’ discrete status as subsidiaries and treatment of all Goodyear entities as a “unitary business,” so that jurisdiction over the parent would draw in the subsidiaries as well. Respondents have therefore forfeited this contention, and we do not address it. [Slip Op. 13-14 (citations omitted)]

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SCOTUS Decision in J. McIntyre Machinery v. Nicastro

The Supreme Court issued its decision in J. McIntyre Machinery v. Nicastro (No. 09-1343) today, a day that witnessed the Court’s first two decisions on personal jurisdiction in two decades. By a 6-to-3 vote, the Court reverses the New Jersey Supreme Court’s finding of jurisdiction, but there is no majority opinion. So the head-counting (and head-scratching) continues, much as it has since the fractured decision in Asahi Metal almost a quarter-century ago. Here’s how things break down:

Justice Kennedy writes a four-Justice plurality opinion, which is joined by Chief Justice Roberts and Justices Scalia and Thomas. They conclude that jurisdiction was improper, noting that “[a]t no time did petitioner engage in any activities in New Jersey that reveal an intent to invoke or benefit from the protection of its laws.” [Kennedy Op. 12]. Justice Ginsburg writes a dissenting opinion, which is joined by Justices Sotomayor and Kagan. They conclude that when there is “a local plaintiff injured by the activity of a manufacturer seeking to exploit a multistate or global market . . . , jurisdiction is appropriately exercised by courts of the place where the product was sold and caused injury.” [Ginsburg Op. 19].

That leaves Justices Breyer and Alito. They provide two more votes against jurisdiction in this case, but they do not join Justice Kennedy’s plurality. Justice Breyer’s concurring opinion, which Justice Alito joins, criticizes the plurality’s “strict rules that limit jurisdiction where a defendant does not intend to submit to the power of a sovereign and cannot be said to have targeted the forum.” [Breyer Op. at 4]. Nonetheless, Justices Breyer and Alito conclude that “on the record present here, resolving this case requires no more than adhering to our precedents.” [Breyer Op. at 4] They note in particular that “none of our precedents finds that a single isolated sale, even if accompanied by the kind of sales effort indicated here, is sufficient.” [Breyer Op. at 2] Although Justice Breyer acknowledges that “there may well have been other facts that Mr. Nicastro could have demonstrated in support of jurisdiction, . . . the plaintiff bears the burden of establishing jurisdiction, and here I would take the facts precisely as the New Jersey Supreme Court stated them.” [Breyer Op. at 3-4]

The biggest take-away from Nicastro may be that the Supreme Court does not plan to take another twenty-year hiatus from personal jurisdiction. The two tie-breaking Justices indicate that they are open to hitting the reset button on this issue if the Court were presented with a case that provides “a better understanding of the relevant contemporary commercial circumstances.” [Breyer Op. 7] Justice Breyer writes:

Because the incident at issue in this case does not implicate modern concerns, and because the factual record leaves many open questions, this is an unsuitable vehicle for making broad pronouncements that refashion basic jurisdictional rules. [Breyer Op. 4]

I would not work such a change to the law in the way either the plurality or the New Jersey Supreme Court suggests without a better understanding of the relevant contemporary commercial circumstances. Insofar as such considerations are relevant to any change in present law, they might be presented in a case (unlike the present one) in which the Solicitor General participates. Cf. Tr. of Oral Arg. in Goodyear Dunlop Tires Operations, S. A. v. Brown, O. T. 2010, No. 10–76, pp. 20–22 (Government declining invitation at oral argument to give its views with respect to issues in this case). This case presents no such occasion, and so I again reiterate that I would adhere strictly to our precedents and the limited facts found by the New Jersey Supreme Court. [Breyer Op. 7]

Stay tuned.

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SCOTUS Decisions in Personal Jurisdiction Cases: J. McIntyre v. Nicastro and Goodyear v. Brown

The Supreme Court issued decisions today in two much-anticipated cases on personal jurisdiction:

J. McIntyre Machinery, Ltd. v. Nicastro (09-1343)

Goodyear Dunlop Tires Operations, S.A. v. Brown (10-76)

More coverage to come. For our earlier coverage of these cases, see here and here.

--A

Why Wal-Mart Was Wrong, And Why It Matters

Here’s my Op-Ed about Wal-Mart Stores, Inc. v. Dukes. It appears in the Sunday Opinion section of the Bergen County (N.J.) Record.

--A

Commentary: Jurisdictionality and Stern v. Marshall

From Professor Scott Dodson (William & Mary) comes the following commentary on this week’s Supreme Court decision in Stern v. Marshall:

Stern v. Marshall is notable for a number of reasons, not all of which are related to the law.  As for the law, I suspect that the opinion will be read mostly for the holding (and the dissent to it) of the scope of Article III’s “judicial power.”  But there’s a unanimous holding of interest to folks (like me) who watch the Court’s growing awareness of the nuances of jurisdictionality.  The labels “jurisdictional” and “nonjurisdictional” are less than they purport to be.  They purport to be dichotomous opposites, describing mutually exclusive sets of effects.  And the Court has largely bought into the dichotomy, characterizing something as jurisdictional and therefore has all the effects of jurisdictionality (as in the maligned opinion Bowles v. Russell), or that something is nonjurisdictional and therefore has none of the effects of jurisdictionality (as in Henderson v. Shinseki).  But, as I have argued elsewhere, that dichotomy is false—nonjurisdictional rules can have jurisdictional effects.  Thus, characterizing a requirement “nonjurisdictional” says very little about its effects, and those effects (waivability, forfeitability, consentability, susceptibility to equitable discretion, etc.) are usually the key issues at stake in the dispute.

In a short section in Stern, the Court appeared to move closer to my position, indicating that perhaps the Court is starting to think more carefully about these nuances.  At issue in Stern was whether Sec. 157(b)(5) of the Bankruptcy Code was jurisdictional such that it could not be forfeited.  The Court concluded that the provision was not jurisdictional (see pages 12-14 of the slip opinion).  I think the Court was correct on this question, though its analysis did not consider certain factors that I think important to the inquiry and that I have spelled out in detail elsewhere.  The Court then made an interesting move.  Ever so briefly, it then considered whether the nonjurisdictional rule was forfeitable (see pages 15-16).  Although I wouldn’t characterize the Court’s analysis here as thorough, I do think the Court was correct to engage in it.  And the Court’s willingness to do so suggests that the Court recognizes that a nonjurisdictional rule could be nonforfeitable.  It’s hard to tell how deeply the Court is thinking about these issues (particularly because the Court ultimately found Sec. 157(b)(5) to be forfeitable and thus to have no jurisdictional effects), but I call it a step in the right direction toward recognizing that the labels “jurisdictional” and “nonjurisdictional” are often unhelpful and misleading.

As an aside, the case did not have occasion to consider the converse issue of how jurisdictional rules can hybridize with nonjurisdictional effects.

--Scott Dodson

SCOTUS Cert Grant of Interest on Article III Standing

This past week was a busy one at the Supreme Court, but we wanted to note that Monday’s orders included a grant of certiorari in First American Financial Corp. v. Edwards (No. 10-708). The Court granted cert. only as to question 2, which involves Article III standing. From the cert. petition’s questions presented (with a little cutting and pasting to incorporate those parts of question 1 that were referenced in question 2)...

Section 8(a) of the Real Estate Settlement Procedures Act of 1974 ("RESPA" or "the Act") provides that "[n]o person shall give and no person shall accept any fee, kickback, or thing of value pursuant to any agreement or understanding ... that business incident to or a part of a real estate settlement service involving a federally related mortgage loan shall be referred to any person." 12 U.S.C. § 2607(a). Section 8(d)(2) of the Act provides that any person "who violate[s]," inter alia, § 8(a) shall be liable "to the person or persons charged for the settlement service involved in the violation in an amount equal to three times the amount of any charge paid for such settlement service." Id. § 2607(d)(2).  

2.  Does [a private purchaser of real estate settlement services] have standing to sue under Article III, § 2 of the United States Constitution, which provides that the federal judicial power is limited to "Cases" and "Controversies" and which this Court has interpreted to require the plaintiff to "have suffered an 'injury in fact,'" Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992), [in the absence of any claim that the alleged violation affected the price, quality, or other characteristics of the settlement services provided]?

SCOTUSblog’s case file is available here, which contains links to the Ninth Circuit’s opinion below and the cert-stage briefs.

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SCOTUS Decision in Stern v. Marshall

Yesterday the Supreme Court issued its decision in Stern v. Marshall (No. 10-179). Our earlier coverage of the case is here and here. Chief Justice Roberts writes the majority opinion, joined by Justices Scalia, Kennedy, Thomas and Alito. Justice Scalia also writes a separate concurring opinion. Justice Breyer writes a dissenting opinion, joined by Justices Ginsburg, Sotomayor, and Kagan. Chief Justice Roberts’ opinion opens in Dickensian fashion:

This “suit has, in course of time, become so complicated, that . . . no two . . . lawyers can talk about it for five minutes, without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause: innumerable young people have married into it;” and, sadly, the original parties “have died out of it.” A “long procession of [judges] has come in and gone out” during that time, and still the suit “drags its weary length before the Court.”

Those words were not written about this case, see C. Dickens, Bleak House, in 1 Works of Charles Dickens 4–5 (1891), but they could have been. This is the second time we have had occasion to weigh in on this long-running dispute between Vickie Lynn Marshall and E. Pierce Marshall over the fortune of J. Howard Marshall II, a man believed to have been one of the richest people in Texas. The Marshalls’ litigation has worked its way through state and federal courts in Louisiana, Texas, and California, and two of those courts—a Texas state probate court and the Bankruptcy Court for the Central District of California—have reached contrary decisions on its merits. The Court of Appeals below held that the Texas state decision controlled, after concluding that the Bankruptcy Court lacked the authority to enter final judgment on a counterclaim that Vickie brought against Pierce in her bankruptcy proceeding. To determine whether the Court of Appeals was correct in that regard, we must resolve two issues: (1) whether the Bankruptcy Court had the statutory authority under 28 U. S. C. §157(b) to issue a final judgment on Vickie’s counterclaim; and (2) if so, whether conferring that authority on the Bankruptcy Court is constitutional.

Although the history of this litigation is complicated, its resolution ultimately turns on very basic principles. Article III, §1, of the Constitution commands that “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” That Article further provides that the judges of those courts shall hold their offices during good behavior, without diminution of salary. Ibid. Those requirements of Article III were not honored here. The Bankruptcy Court in this case exercised the judicial power of the United States by entering final judgment on a common law tort claim, even though the judges of such courts enjoy neither tenure during good behavior nor salary protection. We conclude that, although the Bankruptcy Court had the statutory authority to enter judgment on Vickie’s counterclaim, it lacked the constitutional authority to do so.

The majority’s analysis of the Article III issue is quite lengthy, prompting Justice Scalia to note in his concurrence: “The sheer surfeit of factors that the Court was required to consider in this case should arouse the suspicion that something is seriously amiss with our jurisprudence in this area.” The majority ultimately concludes that “[t]he Bankruptcy Court below lacked the constitutional authority to enter a final judgment on a state law counterclaim that is not resolved in the process of ruling on a creditor’s proof of claim.” [Slip Op. 38.] Particularly important to the majority were the decisions in Northern Pipeline, 458 U. S. 50 (1982), and Granfinanciera, 492 U. S. 33 (1989). From p.21:

It is clear that the Bankruptcy Court in this case exercised the “judicial Power of the United States” in purporting to resolve and enter final judgment on a state common law claim, just as the court did in Northern Pipeline. No “public right” exception excuses the failure to comply with Article III in doing so, any more than in Northern Pipeline. Vickie argues that this case is different because the defendant is a creditor in the bankruptcy. But the debtors’ claims in the cases on which she relies were themselves federal claims under bankruptcy law, which would be completely resolved in the bankruptcy process of allowing or disallowing claims. Here Vickie’s claim is a state law action independent of the federal bankruptcy law and not necessarily resolvable by a ruling on the creditor’s proof of claim in bankruptcy. Northern Pipeline and our subsequent decision in Granfinanciera rejected the application of the “public rights” exception in such cases.

In dissent, Justice Breyer argues that the majority “fails to follow the analysis that this Court more recently has held applicable to the evaluation of claims of a kind before us here, namely, claims that a congressional delegation of adjudicatory authority violates separation-of-powers principles derived from Article III. See Thomas v. Union Carbide Agricultural Products Co., 473 U. S. 568 (1985); Commodity Futures Trading Comm’n v. Schor, 478 U. S. 833 (1986).” [Dissenting Op. 2]. He explains at p.6:

In both [Thomas and Schor], the Court took a more pragmatic approach to the constitutional question. It sought to determine whether, in the particular instance, the challenged delegation of adjudicatory authority posed a genuine and serious threat that one branch of Government sought to aggrandize its own constitutionally delegated authority by encroaching upon a field of authority that the Constitution assigns exclusively to another branch.

All nine Justices agree on the statutory question, however. In examining that issue, the Court weighed in once again on the distinction between jurisdictional and nonjurisdictional requirements. Here, the subject of that inquiry was section 157(b)(5) of the bankruptcy code, which provides: “The district court shall order that personal injury tort and wrongful death claims shall be tried in the district court in which the bankruptcy case is pending, or in the district court in the district in which the claim arose.” As Chief Justice Roberts explained [Slip Op. 12], “Pierce asserts that his defamation claim is a ‘personal injury tort,’ that the Bankruptcy Court therefore had no jurisdiction over that claim, and that the court therefore necessarily lacked jurisdiction over Vickie’s counterclaim as well.” The Court rejected Pierce’s argument. From pp.13-14:

We need not determine what constitutes a “personal injury tort” in this case because we agree with Vickie that §157(b)(5) is not jurisdictional, and that Pierce consented to the Bankruptcy Court’s resolution of his defamation claim. Because “[b]randing a rule as going to a court’s subject-matter jurisdiction alters the normal operation of our adversarial system,” Henderson v. Shinseki, 562 U. S. ___, ___–___ (2011) (slip op., at 4–5), we are not inclined to interpret statutes as creating a jurisdictional bar when they are not framed as such. See generally Arbaugh v. Y & H Corp., 546 U. S. 500, 516 (2006) (“when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character”). Section 157(b)(5) does not have the hallmarks of a jurisdictional decree. To begin, the statutory text does not refer to either district court or bankruptcy court “jurisdiction,” instead addressing only where personal injury tort claims “shall be tried.”

--A

SCOTUS Decision in PLIVA v. Mensing: Federal Preemption & Generic Drugs

Today the Supreme Court issued its decision in PLIVA v. Mensing (No. 09-993), which is actually three consolidated cases about federal preemption of state-law tort liability in claims involving generic drugs. Justice Thomas writes the majority opinion, joined by Chief Justice Roberts and Justices Scalia, Kennedy (in part), and Alito. Justice Sotomayor writes a dissenting opinion, joined by Justices Ginsburg, Breyer, and Kagan. Justice Thomas’s majority opinion begins:

These consolidated lawsuits involve state tort-law claims based on certain drug manufacturers’ alleged failure to provide adequate warning labels for generic metoclopramide. The question presented is whether federal drug regulations applicable to generic drug manufacturers directly conflict with, and thus pre-empt, these state-law claims. We hold that they do.

Justice Sotomayor’s dissent begins:

The Court today invokes the doctrine of impossibility pre-emption to hold that federal law immunizes generic drug manufacturers from all state-law failure-to-warn claims because they cannot unilaterally change their labels. I cannot agree. We have traditionally held defendants claiming impossibility to a demanding standard: Until today, the mere possibility of impossibility had not been enough to establish pre-emption.

Although Justice Kennedy provides the fifth vote in support of preemption, he does not join Part III-B-2 of Justice Thomas's opinion. That section of the opinion (which starts on p.15 of the slip op.) argues that “the text of the [Supremacy] Clause—that federal law shall be supreme, ‘any Thing in the Constitution or Laws of any State to the Contrary notwithstanding’—plainly contemplates conflict pre-emption by describing federal law as effectively repealing contrary state law.” Justice Thomas explains:

The phrase “any [state law] to the Contrary notwithstanding” is a non obstante provision. . . . A non obstante provision in a new statute acknowledged that the statute might contradict prior law and instructed courts not to apply the general presumption against implied repeals. The non obstante provision in the Supremacy Clause therefore suggests that federal law should be understood to impliedly repeal conflicting state law. Further, the provision suggests that courts should not strain to find ways to reconcile federal law with seemingly conflicting state law.

For our earlier coverage of the case, see here and here.

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Cassone and Ramello on the Economics of Class Actions

Professors Alberto Cassone and Giovanni Battista Ramello (Universita del Piemonte Orientale) have posted on SSRN a draft of their article, The Simple Economics of Class Action: Private Provision of Club and Public Goods.  Here’s the abstract:

This article uses economic categories to show how the reorganization of civil procedure in the case of class action is not merely aimed at providing a more efficient litigation technology, as hierarchies (and company law) might do for other productive activities, but that it also serves to create a well defined economic organization ultimately aimed at producing a set of goods, first and foremost among which are justice and efficiency.

Class action has the potential to recreate, in the judicial domain, the same effects that individual interests and motivations, governed by the perfect competition paradigm, bring to the market.

Moreover, through economic analysis it is possible to rediscover not only the productive function of this legal machinery, but also that partial compensation of victims and large profits for the class counsel, far from being a side-effect, are actually a necessary condition for reallocation of the costs and risks associated with the legal action.

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Fun Photo "Evidence" in a Summary Judgment Brief

In the ongoing lawsuit between Ross Perot, Jr. and Mark Cuban for mismanagement of the Dallas Mavericks, we have a new addition to fun motions to show our students.  Cuban's lawyers amended their motion for summary judgment to include a large photo of the Mavericks celebrating after winning the NBA title.  

Deadspin covers the story here and here is the summary judgment motion.

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SCOTUS Decision in Turner v. Rogers

This week, the Supreme Court issued its decision in Turner v. Rogers (No. 10-10), which addresses the procedures required for civil contempt proceedings leading to incarceration. Justice Breyer writes the majority opinion, joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Justice Thomas writes a dissenting opinion, joined by Justice Scalia and partially joined by Chief Justice Roberts and Justice Alito. Justice Breyer’s majority opinion begins:

South Carolina’s Family Court enforces its child support orders by threatening with incarceration for civil contempt those who are (1) subject to a child support order, (2) able to comply with that order, but (3) fail to do so. We must decide whether the Fourteenth Amendment’s Due Process Clause requires the State to provide counsel (at a civil contempt hearing) to an indigent person potentially faced with such incarceration. We conclude that where as here the custodial parent (entitled to receive the support) is unrepresented by counsel, the State need not provide counsel to the noncustodial parent (required to provide the support). But we attach an important caveat, namely, that the State must nonetheless have in place alternative procedures that assure a fundamentally fair determination of the critical incarceration-related question, whether the supporting parent is able to comply with the support order.

The Court based its conclusion on “the ‘distinct factors’ that this Court has previously found useful in deciding what specific safeguards the Constitution’s Due Process Clause requires in order to make a civil proceeding fundamentally fair. Mathews v. Eldridge, 424 U. S. 319, 335 (1976) (considering fairness of an administrative proceeding).”

As relevant here those factors include (1) the nature of “the private interest that will be affected,” (2) the comparative “risk” of an “erroneous deprivation” of that interest with and without “additional or substitute procedural safeguards,” and (3) the nature and magnitude of any countervailing interest in not providing “additional or substitute procedural requirement[s].” Ibid. See also Lassiter, 452 U. S., at 27–31 (applying the Mathews framework).

Applying this framework, the Court reasons (some citations omitted):

[W]e find three related considerations that, when taken together, argue strongly against the Due Process Clause requiring the State to provide indigents with counsel in every proceeding of the kind before us.

First, the critical question likely at issue in these cases concerns, as we have said, the defendant’s ability to pay. That question is often closely related to the question of the defendant’s indigence. But when the right procedures are in place, indigence can be a question that in many—but not all—cases is sufficiently straightforward to warrant determination prior to providing a defendant with counsel, even in a criminal case. . . .  

Second, sometimes, as here, the person opposing the defendant at the hearing is not the government represented by counsel but the custodial parent unrepresented by counsel. The custodial parent, perhaps a woman with custody of one or more children, may be relatively poor, unemployed, and unable to afford counsel. Yet she may have encouraged the court to enforce its order through contempt. She may be able to provide the court with significant information. A requirement that the State provide counsel to the noncustodial parent in these cases could create an asymmetry of representation that would alter significantly the nature of the proceeding. Doing so could mean a degree of formality or delay that would unduly slow payment to those immediately in need. And, perhaps more important for present purposes, doing so could make the proceedings less fair overall, increasing the risk of a decision that would erroneously deprive a family of the support it is entitled to receive.

Third, as the Solicitor General points out, there is available a set of “substitute procedural safeguards,” Mathews, 424 U. S., at 335, which, if employed together, can significantly reduce the risk of an erroneous deprivation of liberty. They can do so, moreover, without incurring some of the drawbacks inherent in recognizing an automatic right to counsel. Those safeguards include (1) notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information; (3) an opportunity at the hearing for the defendant to respond to statements and questions about his financial status, (e.g., those triggered by his responses on the form); and (4) an express finding by the court that the defendant has the ability to pay.

The Court concludes:

The record indicates that Turner received neither counsel nor the benefit of alternative procedures like those we have described. He did not receive clear notice that his ability to pay would constitute the critical question in his civil contempt proceeding. No one provided him with a form (or the equivalent) designed to elicit information about his financial circumstances. The court did not find that Turner was able to pay his arrearage, but instead left the relevant “finding” section of the contempt order blank. The court nonetheless found Turner in contempt and ordered him incarcerated. Under these circumstances Turner’s incarceration violated the Due Process Clause.

Justice Thomas’s dissenting opinion begins:

The Due Process Clause of the Fourteenth Amendment does not provide a right to appointed counsel for indigent defendants facing incarceration in civil contempt proceedings. Therefore, I would affirm. Although the Court agrees that appointed counsel was not required in this case, it nevertheless vacates the judgment of the South Carolina Supreme Court on a different ground, which the parties have never raised. Solely at the invitation of the United States as amicus curiae, the majority decides that Turner’s contempt proceeding violated due process because it did not include “alternative procedural safeguards.” Consistent with this Court’s longstanding practice, I would not reach that question.

Among the most notable aspects of Justice Thomas’s dissent are two sections that are joined by Justice Scalia but not by the other dissenters (Chief Justice Roberts and Justice Alito). From Part I-A of the dissent:

Under an original understanding of the Constitution, there is no basis for concluding that the guarantee of due process secures a right to appointed counsel in civil contempt proceedings. It certainly does not do so to the extent that the Due Process Clause requires “‘that our Government must proceed according to the “law of the land”—that is, according to written constitutional and statutory provisions.’” Hamdi v. Rumsfeld, 542 U. S. 507, 589 (2004) (Thomas, J., dissenting) (quoting In re Winship, 397 U. S. 358, 382 (1970) (Black, J., dissenting)). . . . Although the Sixth Amendment secures a right to “the Assistance of Counsel,” it does not apply here because civil contempt proceedings are not “criminal prosecutions.” U. S. Const., Amdt. 6. Moreover, as originally understood, the Sixth Amendment guaranteed only the “right to employ counsel, or touse volunteered services of counsel”; it did not require the court to appoint counsel in any circumstance.

Part III of Justice Thomas’s dissent challenges the majority’s use of “the Mathews v. Eldridge balancing test,” arguing that it “does not account for the interests of the child and custodial parent, who is usually the child’s mother.” He concludes (citations omitted):  

Although I think that the majority’s analytical framework does not account for the interests that children and mothers have in effective and flexible methods to secure payment, I do not pass on the wisdom of the majority’s preferred procedures. Nor do I address the wisdom of the State’s decision to use certain methods of enforcement. Whether “deadbeat dads” should be threatened with incarceration is a policy judgment for state and federal lawmakers, as is the entire question of government involvement in the area of child support. This and other repercussions of the shift away from the nuclear family are ultimately the business of the policymaking branches.

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