Friday, July 1, 2011

Could Wal-Mart Extend Beyond Class Actions?

Like Adam, I have also gotten into the Op-Ed game for Wal-Mart commentary.  My Op-Ed appears in today's National Law Journal and explores the ways in which the 23(a)(2) analysis might leak into interpretations of the common question language found in other Federal Rules.


July 1, 2011 in Class Actions, In the News, MDLs, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Thursday, June 30, 2011

And in case you thought "tort reform" was slowing down . . .

The "American Tort Reform Association" (sorry, I just have to put anything that includes the phrase "tort reform" in quotation marks) has published its list of 2011 State Tort Reform Enactments (as of June 17, 2011) here.

This is the organization that marks certain locations in the country as "judicial hellholes." 

I have not done independent research to check and make sure that the listed bills were actually passed, or that ATRA's characterization of what the bills provide is accurate. 

For all those who think that Twombly/Iqbal is not materially different from Conley, note that Oklahoma apparently just passed a bill called "Class Action Reform" that "Adopts Twombly/Iqbal language and . . . provides that an action may be maintained as a class action if the petition contains factual allegations sufficient to demonstrate a plausible claim for relief."

For the two or three of you out there who follow Oklahoma politics at all, the "tort reform" juggernaut at work in Oklahoma apparently just managed to pass numerous items that were vetoed by Governor Henry about three years ago.   Upon his veto of that "tort reform" package, Oklahoma was excoriated by the Wall Street Journal as a backwater destined to remain one until it passed.

And in case my biases aren't clear enough by my tone, they are made clear enough in my article published a few years ago in Valparaiso Law review here. 


June 30, 2011 | Permalink | Comments (0)

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:

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June 30, 2011 in Class Actions, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Wednesday, June 29, 2011

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

            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."

             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."

             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.”

             (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."

             Two other witnesses also testified, one in support of Senator Leahy’s thesis (James Fox, Duke School of Law, ) and one against (Robert Alt, The Heritage Foundation, 

            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. 


June 29, 2011 | Permalink | Comments (0)

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.


June 29, 2011 in Class Actions, Current Affairs, Recent Decisions, Supreme Court Cases, Television | Permalink | Comments (0)

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.


June 29, 2011 in Supreme Court Cases, Weblogs | Permalink | Comments (0)

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

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  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.



June 29, 2011 in Federal Rules of Civil Procedure | Permalink | Comments (1)

Tuesday, June 28, 2011

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

June 28, 2011 | Permalink | Comments (0)

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


June 28, 2011 in Class Actions | Permalink | Comments (0)

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:

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June 28, 2011 | Permalink | Comments (0)

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.


June 28, 2011 | Permalink | Comments (0)

Monday, June 27, 2011

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)]


June 27, 2011 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

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.


June 27, 2011 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

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.


June 27, 2011 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Sunday, June 26, 2011

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.


June 26, 2011 in Class Actions, In the News, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)