Saturday, August 17, 2013

Washington Post Op-Ed Urges Changes in ABA's Panel on Judicial Selection

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."


August 17, 2013 in Current Affairs, Federal Courts | Permalink | Comments (0)

Friday, August 16, 2013

Proposed Amendments to the FRCPs: Now Published and Available for Comment

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.)


August 16, 2013 in Discovery, Federal Rules of Civil Procedure | Permalink | Comments (0)

Thursday, August 15, 2013

Federal Judges Send Letter to Congress Protesting the Sequestration

From Third Branch News:

The chief judges of the federal district courts have sent a letter to Vice President Joe Biden (as President of the Senate) outlining the "devastating impact" of the budget reductions on the federal courts.


August 15, 2013 | Permalink | Comments (0)

Tuesday, August 13, 2013

NY Times Story on Cy Pres Class Action Settlements

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).


August 13, 2013 in Class Actions, Federal Rules of Civil Procedure, In the News, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Video Clip From ABA Panel "Are Courts Dying?"

For those of us unable to get to San Francisco, the ABA has made a brief video clip available from its panel on the courts funding crisis at the Annual Meeting (reported here).  The panelists are:

  • 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


August 13, 2013 in Conferences/Symposia, Current Affairs | Permalink | Comments (0)

Monday, August 12, 2013

More Bad News for Fair Labor Standards Act Plaintiffs

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."


August 12, 2013 in Class Actions, Recent Decisions | Permalink | Comments (0)

Sunday, August 11, 2013

"Are Courts Dying?" ABA Program Explores Question at Annual Meeting

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."


August 11, 2013 in Conferences/Symposia, Current Affairs, In the News | Permalink | Comments (0)