Saturday, August 17, 2013
The Washington Post published an Op-Ed yesterday by Professor Michael J. Yelnosky, at Roger Williams University School of Law. Yelnosky notes that in the ABA's Standing Committee on the Federal Judiciary, which rates potential nominees for federal judicial vacancies, "Not one of the lawyers on the committee for 2013-14 regularly represents individuals who bring lawsuits alleging they were harmed by the actions of corporations or other business entities, and not one represents individuals charged with anything other than white-collar crimes."
Friday, August 16, 2013
In June 2013, the Judicial Conference Committee on Rules of Practice and Procedure (a.k.a. the Standing Committee) approved a significant set of amendments to the Federal Rules of Civil Procedure for publication and comment. The proposed amendments affect Rules 1, 4, 6, 16, 26, 30, 31, 33, 34, 36, 37, 55, 84, and the Appendix of Forms.
Anyone who is interested may submit written comments, and may also testify at a number of public hearings that are being held in the coming months (Washington, DC, on November 7, 2013; Phoenix, Arizona, on January 9, 2014; and Dallas, Texas, on February 7, 2014).
The public comment period closes on February 15, 2014. Only after this comment period is complete will the Civil Rules Advisory Committee decide whether—and with what further changes—to proceed with these proposals. That decision is likely to occur during the spring of 2014, with the Supreme Court ultimately signing off in the spring of 2015 (by May 1, 2015 at the latest). Absent intervention by Congress, any changes would go into effect on December 1, 2015.
More details about the comment and hearing process are available here and here. The draft of the proposed amendments are available here. (Note that these documents also include proposed amendments to the Bankruptcy Rules, which are subject to the same comment period but with a different set of public hearings.)
Thursday, August 15, 2013
Tuesday, August 13, 2013
Here’s Adam Liptak’s latest story, When Lawyers Cut Their Clients Out of the Deal, which discusses a recent Ninth Circuit decision on cy pres settlements that is the subject of a pending Supreme Court cert. petition, Marek v. Lane (No. 13-136).
- Tani G. Cantil-Sakauye, chief justice of the California Supreme Court
- Jonathan Lippman, chief justice of the New York Court of Appeals
- Wallace B. Jefferson, chief justice of the Texas Supreme Court
Monday, August 12, 2013
Hot on the heels of Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013), comes a new Second Circuit decision heralding the slow strangulation of Fair Labor Standards Act cases: Sutherland v. Ernst & Young LLP, No. 12-304-cv (2d Cir. Aug. 9, 2013).
Plaintiff, a former employee of Ernst & Young, brought a class action on behalf of herself and other similarly situated to recover overtime wages under the FLSA and the New York Department of Labor's Minimum Wage Order. Plaintiff's employment contract, naturally, contained a mandatory arbitration clause that specifically applied to the FLSA and state wage laws, as well as a provision that "disputes pertaining to different employees will be heard in separate proceedings."
Plaintiff's individual alleged unpaid overtime wages were $1,867.02. The district court denied Ernst & Young's motion to dismiss, stay the proceedings, or compel arbitration on an individual bases. The district court reasoned that "[e]nforcement of the class waiver provision in this case would effectively ban all proceeings by [plaintiff] against E&Y."
The Second Circuit reversed. Citing American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013), the court held that the "effective vindication doctrine" (which might allow invalidation of a class-action waiver) was not satisfied even if the cost of proceeding individually in arbitration would exceed the potential recovery. Further, the court held that FLSA "does not include a 'contrary congressional command' that prevents a class-action waiver provision in an arbitration agreement from being enforced by its terms."
Sunday, August 11, 2013
At the American Bar Association Annual Meeting in San Francisco, a panel entitled "Are Courts Dying? The Decline of Open and Public Adjudication" was moderated by Professor Judith Resnik. Participants discussed "budget cuts and the generally high cost of legal representation."