Saturday, June 27, 2015
By now readers are surely aware of yesterday’s landmark Supreme Court decision in Obergefell v. Hodges, which held by a 5-4 vote that the U.S. Constitution does not permit states to bar same-sex couples from marriage on the same terms as are accorded to opposite-sex couples. Despite this ruling, it is not yet clear how things will unfold in Alabama—or in other states that have not recognized same-sex marriage but are not directly involved in the Obergefell case (which involves the four states in the Sixth Circuit—Kentucky, Michigan, Ohio, and Tennessee).
According to early reports, many Alabama counties began issuing marriage licenses to same-sex couples shortly after Justice Kennedy announced the Obergefell decision (some of these counties had already done so earlier but stopped after the March 3 ruling from the Alabama Supreme Court). Other Alabama counties are still not issuing marriage licenses to same-sex couples or have stopped issuing marriage licenses altogether.
So where do things stand on the Alabama judicial front? Federal judge Callie Granade has already issued a class-wide preliminary injunction against all Alabama probate judges, ordering that they may not enforce Alabama’s ban on same-sex marriage. She stayed that injunction “until the Supreme Court issues its ruling” in Obergefell, but as of this post she has taken no further action.
Meanwhile the Alabama Supreme Court’s mandamus ruling, which orders Alabama probate judges not to issue marriage licenses to same-sex couples, remains. The Alabama Supreme Court has yet to rule on a motion filed earlier this month by groups opposing same-sex marriage, which had sought “clarification and reaffirmation” of the mandamus ruling in the wake of Judge Granade’s class-wide injunction. Alabama Chief Justice Roy Moore was in the news once again shortly after Obergefell came down, asserting the decision was “even worse” than Plessy v. Ferguson.
The upshot is, we’re likely to see more action in both state and federal court before things get resolved. Stay tuned.
Wednesday, June 24, 2015
Under this Act, to obtain class certification, class action plaintiffs "seeking monetary relief for personal injury or economic loss" will have to "affirmatively demonstrate that each proposed class member suffered the same type and scope of injury as the named class representative."
Amendments offered by Democrats all failed. These failed amendments were to: except Title VII claims; except antitrust claims; strike the words "and scope"; strike the words "or economic loss"; require Judicial Conference approval of the changes; and require the Administrative Office of the US Courts to assess the effect of the bill on litigants and courts.
Monday, June 8, 2015
(I) Whether differences among individual class members may be ignored and a class action certified under Federal Rule of Civil Procedure 23(b)(3), or a collective action certified under the Fair Labor Standards Act, where liability and damages will be determined with statistical techniques that presume all class members are identical to the average observed in a sample.
(II) Whether a class action may be certified or maintained under Rule 23(b)(3), or a collective action certified or maintained under the Fair Labor Standards Act, when the class contains hundreds of members who were not injured and have no legal right to any damages.
You can find all of the cert-stage briefing, and keep track of the merits briefs as they come in, at SCOTUSblog.
Thursday, June 4, 2015
I reported earlier that the House Judiciary Committee held a hearing on February 27, 2015 on “The State of Class Actions Ten Years After the Enactment of the Class Action Fairness Act,” at which I testified as the only minority witness. The transcript is now online.
Questions for the record were submitted to me after the hearing. I submitted my response to the questions for the record on May 11, 2015. My response does not appear to have been posted on the website for the hearing, but I posted it on SSRN.
This is Professor Moore’s response to questions for the record submitted to her after the hearing before the Committee on the Judiciary, Subcommittee on the Constitution and Civil Justice, U.S. House of Representatives, on "The State of Class Actions Ten Years After the Enactment of the Class Action Fairness Act" on February 27, 2015. The questions submitted to her asked whether, when determining the requirements of class certification, Congress should limit a class to those individuals "with the same or similar injuries" or those individuals whose damages or injuries have been sustained due to "the same or similar proximate cause" or "the same product or activity."
The response begins by noting that the wording of the questions appeared designed to eliminate what the majority witnesses at the hearing termed "no-injury class actions." The response argues that the term "no-injury class action" is a recently-invented term without roots in the law of class actions, and that the term is misleading when applied indiscriminately to all class actions. The substantive law, whether federal or state, determines when a person is "injured," and the majority witnesses’ assertion that certain class members have suffered "no injury" contravenes the governing substantive law.
The response then more specifically addresses the suggested language in the questions submitted. The suggested limitations, if passed by Congress, would restrict class actions. First, it is unclear how the broad-brush language would be applied to class actions for injunctive relief, such as civil rights cases. Second, the language sounds like existing law, but those seeking to eliminate so-called "no-injury class actions" intend that the language should be interpreted in a new and more radical way so to make it much more difficult to obtain class certification than under existing law. Third, the language would in essence require a class, at certification, to include only class members who could prove their case on the merits. That would constitute an impermissible "fail-safe" class allowing any class member who did not prove her case on the merits to escape being bound by the class judgment. Fourth, the existing certification requirements of commonality, typicality, and predominance provide sufficient tools for federal judges to rigorously apply the standards to unique factual situations.
The response also notes that the Civil Rules Advisory Committee is currently considering numerous changes to Rule 23, so that legislation is premature. Finally, the response calls for Congress to require the public release of data on federal class actions.
Wednesday, June 3, 2015
Two weeks ago, federal district judge Callie Granade certified a class action in the Strawser case and issued a class-wide injunction forbidding enforcement of Alabama’s ban on same-sex marriage. She stayed the injunction, however, until the U.S. Supreme Court issues its ruling in Obergefell v. Hodges, which is expected later this month.
In the meantime, two groups opposed to same-sex marriage have returned to the Alabama Supreme Court, seeking “clarification and reaffirmation” of that court’s earlier mandamus ruling ordering Alabama probate judges not to issue marriage licenses to same-sex couples. Yesterday’s motion asks the Alabama Supreme Court “to enter an order clarifying and reaffirming the continued effectiveness of the Mandamus Order despite entry of the conflicting Strawser Class Injunction.”
Thursday, May 21, 2015
Alabama Same-Sex Marriage Litigation Update: Federal Judge Grants Class Certification and Issues (but Stays) Class-Wide Injunction
Things had been fairly quiet in the litigation over Alabama’s same-sex marriage ban (here’s where things stood back in March). Today, U.S. District Judge Callie Granade made two important rulings in the Strawser case. In one order, she certified both a plaintiff class and a defendant class under Rule 23(b)(2). She wrote:
Plaintiffs’ motion to certify a Plaintiff Class consisting of all persons in Alabama who wish to obtain a marriage license in order to marry a person of the same sex and to have that marriage recognized under Alabama law, and who are unable to do so because of the enforcement of Alabama’s laws prohibiting the issuance of marriage licenses to same-sex couples and barring recognition of their marriages is GRANTED.
Plaintiffs’ motion to certify a Defendant Class consisting of all Alabama county probate judges who are enforcing or in the future may enforce Alabama’s laws barring the issuance of marriage licenses to same-sex couples and refusing to recognize their marriages is GRANTED.
In another order, Judge Granade concluded—yet again—that Alabama’s ban on same-sex marriage is unconstitutional. Accordingly, she granted the plaintiff’s motion for a preliminary injunction; but she also ordered that “because the issues raised by this case are subject to an imminent decision by the United States Supreme Court in Obergefell v. Hodges and related cases, the above preliminary injunction is STAYED until the Supreme Court issues its ruling.”
Monday, May 18, 2015
1. Whether a case becomes moot, and thus beyond the judicial power of Article III, when the plaintiff receives an offer of complete relief on his claim.
2. Whether the answer to the first question is any different when the plaintiff has asserted a class claim under Federal Rule of Civil Procedure 23, but receives an offer of complete relief before any class is certified.
3. Whether the doctrine of derivative sovereign immunity recognized in Yearsley v. W.A. Ross Construction Co., 309 U.S. 18 (1940), for government contractors is restricted to claims arising out of property damage caused by public works projects.
You can see all of the cert-stage briefing, and keep track of the merits briefs as they come in, at SCOTUSblog.
Tuesday, May 12, 2015
Brooke Coleman has a post today over on PrawfsBlawg called "Civil Rule 23 -- To Amend or Not to Amend?"
She summarizes three of the “conceptual sketches” that the Rule 23 Subcommittee of the Civil Rules Advisory Committee is currently considering.
Monday, April 27, 2015
Last week, Representative Bob Goodlatte (R-Va) introduced H.R. 1927, ironically entitled “Fairness in Class Action Litigation 2015.”
The bill provides:
“(a) IN GENERAL.—No Federal court shall certify any proposed class unless the party seeking to maintain a class action affirmatively demonstrates through admissible evidentiary proof that each proposed class member suffered an injury of the same type and extent as the injury of the named class representative or representatives.
“(b) DEFINITION.—In this section, the term ‘injury’ means the alleged impact of the defendant’s actions on the plaintiff’s body or property.”
It seems to me that this bill would eviscerate class actions.
There will be a hearing on this bill before the House Committee on the Judiciary, Subcommittee on the Constitution and Civil Justice, this Wednesday, April 29, 2015, at 3:00 p.m.
Thursday, April 23, 2015
As we covered earlier, the first annual Civil Procedure Workshop is being held July 16-17 at Seattle University School of Law. You can find more details and registration information in the document linked below:
Thursday, April 9, 2015
In In re Blood Reagents Antitrust Litigation, No. 12-4067 (3d Cir. April 8, 2015), the court vacated the trial court's certification of a class of purchasers of blood reagents, which alleged price-fixing by the two defendants.
In part, the court vacated because the class certification had occurred before the Supreme Court's decision in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013). In addition, the court held that if, on a motion for class certification, plaintiffs relied on expert testimony to establish "predominance" under Rule 23(b)(3), then the expert's testimony must satisfy the Daubert standard for admissibility.
On the earlier motion for class certification, the plaintiffs had relied in part on expert testimony to produce their antitrust impact analyses and damages models. The district court held that the expert's testimony "could evolve to become admissible evidence" at trial. The Third Circuit held that "the trial court should have scrutinized the plaintiffs' expert's testimony under Daubert."
The court stated that it was joining the Seventh and Eighth Circuits in holding Daubert applicable on class certification motions.
Monday, March 23, 2015
The Advisory Committee on Civil Rules has released the 640-page agenda for its April 9-10, 2015 meeting.
The agenda includes many items that are of interest. The following is far from an exhaustive list:
- In the Draft Minutes for the Committee's October 30, 2014 meeting (p. 39):
"Judge Campbell reported that the Forms Working Group in the Administrative Office has already begun deliberating what response they might make if the proposed abrogation of Rule 84 and the Rule 84 Forms is approved by the Supreme Court and Congress. They have begun to think about new forms that might be created. This Committee will keep in touch with the Working Group, perhaps by means as formal as appointing a liaison member."
- The Report of the Rule 23 Subcommittee considers the following topics. Some contain "sketches" of possible amendments to the rule on class actions (p. 243):
- Settlement approval criteria (p. 246)
- Settlement class certification (p. 253)
- Cy pres treatment (p. 263)
- Dealing With Objectors (p. 272)
- Rule 68 Offers and Mootness (p. 277)
- Issue Classes (p. 281)
- Notice (p. 284)
- The Discovery Subcommittee reports on "Requester Pays Issues." (p. 333)
Tuesday, March 17, 2015
Brian Fitzpatrick (Vanderbilt) has posted two new articles to SSRN on class actions.
The End of Class Actions: In this Article, I give a status report on the life expectancy of class action litigation following the Supreme Court’s decisions in Concepcion and American Express. These decisions permitted corporations to opt out of class action liability through the use of arbitration clauses, and many commentators, myself included, predicted that they would eventually lead us down a road where class actions against businesses would be all but eliminated. Enough time has now passed to make an assessment of whether these predictions are coming to fruition. I find that, although there is not yet solid evidence that businesses have flocked to class action waivers — and that one big category of class action plaintiffs (shareholders) remain insulated from Concepcion and American Express altogether — I still see every reason to believe that businesses will eventually be able to eliminate virtually all class actions that are brought against them, including those brought by shareholders.
An Empirical Look at Compensation in Consumer Class Actions: Consumer class actions are under broad attack for providing little in compensation to class members. One response to this charge is the argument that one of us has made elsewhere: consumer class actions should not be measured by their compensatory value but by their deterrence value. But here we take up this critique of consumer class actions on its own terms: can they serve a meaningful compensatory role? Scholars have taken up this question before, but they have been stymied by the lack of available data. In this article, we present original data on the distribution of class action settlements in fifteen related small-stakes consumer class action lawsuits against some of the largest banks in the United States. We obviously can make no claim that these settlements are representative of most consumer class actions. Nonetheless, we believe our findings support the notion that, under certain circumstances, consumer class actions can indeed serve a meaningful compensatory role: when they eschew claim forms in favor of automatic distributions and when they rely on direct deposits or standard-sized checks rather than the cheaper, postcard-sized variety to make those distributions.
Friday, March 13, 2015
There’s an interesting paragraph in this week’s order from the Alabama Supreme Court, which confirmed that Mobile County probate judge Don Davis is subject to its earlier mandamus ruling even though he is also the subject of a federal-court injunction. In trying to make sense of this situation, Judge Davis had stopped issuing marriage licenses altogether.
Here’s what the Alabama Supreme Court said (emphasis mine) on p.9:
Section 30-1-9, Ala. Code 1975, provides that Judge Davis "may" issue “marriage licenses." To the extent he exercises this authority, he must issue those licenses in accordance with the meaning of the term "marriage" in that Code section and in accordance with other provisions of Alabama law, as discussed in our March 3 opinion.
Is the implication here that Judge Davis has no obligation to issue marriage licenses to anyone? That he can refuse to issue them across the board, just as long as no marriage licenses are issued to same-sex couples?
Meanwhile, expect some more activity in federal court next week. Judge Granade has ordered Judge Davis to file a response to the Strawser plaintiffs’ motion for class certification by Tuesday, March 17.
[Cross-posted at PrawfsBlawg]
Wednesday, March 11, 2015
The litigation over Alabama’s ban on same-sex marriage has taken many twists and turns in these early months of 2015, but the main action has been in two arenas: the Alabama Supreme Court and U.S. District Judge Callie Granade’s courtroom in the Southern District of Alabama. Of course, everyone will be watching the U.S. Supreme Court as well, where Obergefell v. Hodges will be argued next month. And it was the Supreme Court’s February order refusing to stay Judge Granade’s initial injunction that began the latest round of activity. Here’s where things stand:
The Alabama Supreme Court said its piece last week, granting a writ of mandamus ordering all Alabama probate judges to stop granting marriage licenses. The merits of that ruling are certainly open to debate—both on the key constitutional issue and the standing/jurisdiction issue—but there are a few things to keep in mind going forward. First, the mandamus action was brought by two groups opposing same-sex marriage (acting as “relators” for the State of Alabama) against the Alabama probate judges. No individuals or couples who might wish to challenge Alabama’s same-sex marriage ban were parties to that proceeding, so as a matter of preclusion the ruling by the Alabama Supreme Court does not prevent them from seeking relief in federal court.
Second, the court ordered Alabama probate judges not to issue new same-sex marriage licenses (and it seems to have had that effect), but it ignored the relators request to order Alabama probate judges “not to recognize any marriage licenses issued to same sex couples.” In doing so, the court avoided one potential direct conflict with the federal judiciary, insofar as Judge Granade had previously ordered Mobile County probate judge Don Davis to issue marriage licenses to four same-sex couples in the Strawser case. Indeed, the Alabama Supreme Court’s order asked Davis to “advise” it “as to whether he is bound by any existing federal court order regarding the issuance of any marriage license other than the four marriage licenses he was ordered to issue in Strawser.” His deadline was last Thursday (3/5), but he’s asked for more time to respond. [Update: Today the Alabama Supreme Court posted on its website an order confirming that Judge Davis was also subject to its mandamus ruling, but only after determining for itself (whether correctly or not) that Judge Granade’s injunction did not extend beyond those four licenses.]
In a data bonanza for numbers geeks, the federal government separately released two reports yesterday: the long-awaited Final Arbitration Study by the Consumer Finance Protection Bureau and the less-awaited Judicial Business of the United States Courts: Annual Report of the Director 2014.
I will post more about each of these reports as I digest them. The CFPB report is over 700 pages long and contains a wealth of empirical information about arbitration clauses in consumer financial instruments such as credit cards. This information includes the effect of arbitration clauses on consumer prices (none) and the interplay of arbitration clauses and class actions. As for the 2014 federal courts data, I will add pertinent measures to my existing database to enable a longer-term view.
Saturday, February 28, 2015
I wanted to post a quick blurb about my testimony yesterday before the Subcommittee on the Constitution and Civil Justice of the House Judiciary Committee in the hearing on The State of Class Actions Ten Years After the Class Action Fairness Act.
Here is the Prepared Statement I submitted 48 hours in advance of the hearing.
Not surprisingly given Republicans' control of the House, of the four witnesses testifying at the hearing, I was the only one offered by the Democrats. The others were representing the US Chamber, DRI-the Voice of the Defense Bar, and Skadden Arps.
Continuing the proud tradition of "tort reformers" in spinning corporations' huge legal victories as tragic defeats, one would have never known that Wal-Mart v. Dukes, AT&T Mobility v. Concepcion, and American Express v. Italian Colors (among many other corporate victories in the Supreme Court, the Advisory Committee, and state legislatures) had ever happened. Instead, listening to the Republican-sponsored witnesses and members of the Committee and Subcommittee, it seemed instead that democracy itself, and even the world economy, were threatened by legions of liberal federal judges granting class certifications in cases in which no class members had been injured. (Yes, the new urban myth of corporate interests is the so-called "no injury" class.)
As a former litigator, it was agony sitting there and not being able to object ("Mischaracterizes the evidence!" "Assumes facts not in evidence!" "Irrelevant!") to some of the things coming out of people's mouths.
It was also depressing to calculate how much I would have earned at the going hourly rate of an attorney with my background and experience in an urban market IF ANYONE HAD BEEN PAYING ME -- which of course, no one was. (My dear law school, St. Thomas, reimbursed my measly travel expenses.)
Somehow, I doubt that the other three witnesses were appearing pro bono.
But someone has to stand up for rights of injured, cheated, and discriminated-against Americans and the plaintiffs' lawyers who represent them. I am honored to have tried my best to do so.
Tuesday, February 10, 2015
Today the U.S. Court of Appeals for the Second Circuit issued its decision in Roach v. T.L. Cannon Corp. The opinion begins:
“This appeal presents the question of whether the Supreme Court’s decision in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), overruled the law of this Circuit that class certification pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure cannot be denied merely because damages have to be ascertained on an individual basis. The United States District Court for the Northern District of New York (McAvoy, J.) concluded that Comcast permits certification under Rule 23(b)(3) only when damages are measurable on a classwide basis, and denied Plaintiffs-Appellants’ motion for class certification.
“We hold that Comcast does not mandate that certification pursuant to Rule 23(b)(3) requires a finding that damages are capable of measurement on a classwide basis.”
And from later in the opinion:
“The Supreme Court did not foreclose the possibility of class certification under Rule 23(b)(3) in cases involving individualized damages calculations. Our reading of Comcast is consistent with the Supreme Court’s statement in Comcast that its decision turned upon 'the straightforward application of class-certification principles.' 133 S. Ct. at 1433. Our reading is also consistent with the interpretation of those Circuits that have had the opportunity to apply Comcast.”
H/T: Perry Cooper
Tuesday, February 3, 2015
We covered earlier the Supreme Court’s decision in Dart Cherokee Basin Operating Co. v. Owens, a case where cert. was granted to resolve what had to be contained in a notice of removal, only to have a 5-4 fight erupt over questions of Supreme Court jurisdiction and the proper standard of review.
Scott Gant and Christopher Hayes have now posted a piece entitled 'Dart' and Class Certification Order Jurisdiction, which argues the Dart Cherokee “also resolves uncertainty about whether the Supreme Court has jurisdiction to review a district court’s interlocutory order granting or denying class certification when the court of appeals has declined to review the order.”
Tuesday, December 16, 2014
Now available on the Journal of Legal Analysis website is David Rosenberg and Kathryn Spier’s article, Incentives to Invest in Litigation and the Superiority of the Class Action. Here’s the abstract:
We formally demonstrate the general case for class action in a rent-seeking contest model, explaining why separate action adjudication is biased in the defendant’s favor and collective adjudication is bias free. Separate action bias arises from the defendant’s investment advantage in capitalizing on centralized control over the aggregate (classwide) stake in the common question defense, while the plaintiff, with only an individual recovery at stake, spends much less. Class action eliminates bias by enabling both parties to make their best case through centralized optimal classwide investments. Our social benefit–cost analysis shows that class action surpasses alternative methods for achieving bias-free adjudication.
And here’s a link to the PDF file.
H/T: Larry Solum (who justifiably says to download it while it’s hot).