Friday, December 8, 2017

Two Interesting SCOTUS Cert Grants

Today the U.S. Supreme Court granted certiorari in several cases, including these two:

United States v. Sanchez-Gomez presents the question: “Whether the court of appeals erred in asserting authority to review respondents’ interlocutory challenge to pretrial physical restraints and in ruling on that challenge notwithstanding its recognition that respondents’ individual claims were moot.”

China Agritech, Inc. v. Resh presents the question: “Whether the American Pipe rule tolls statutes of limitations to permit a previously absent class member to bring a subsequent class action outside the applicable limitations period.”

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at the SCOTUSblog case pages for Sanchez-Gomez and China Agritech.

 

 

 

December 8, 2017 in Class Actions, Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Wednesday, October 25, 2017

Senate votes to repeal CFPB’s rule on arbitration

Last night, during Game 1 of the World Series, the Senate passed House Joint Resolution 111, which would repeal the Consumer Financial Protection Bureau’s rule on arbitration agreements (covered earlier here). The CFPB’s rule would prohibit providers of certain consumer financial products and services from using an arbitration agreement to bar consumers from filing or participating in a class action. 

The vote was 50-50, with Vice President Pence breaking the tie. (The vote in the House of Representatives back in July was 231-190.)

 

 

 

 

October 25, 2017 in Class Actions, In the News | Permalink | Comments (0)

Wednesday, July 19, 2017

Betty Dukes, Lead Plaintiff in Walmart Class Action, Dies

Betty Dukes, the lead plaintiff in the historic class action Dukes v. Wal-Mart Stores, Inc., No. C-01-2252 (N.D. Calif.), has died at age 67.   Although the lower courts granted and affirmed class certification in a gender- and race-based discrimination suit, the Supreme Court, in a 5-4 decision authored by Justice Antonin Scalia for the majority,   reversed the grant of class certification.

Hat tip: Janet Alexander.

July 19, 2017 in Class Actions, Current Affairs | Permalink | Comments (0)

Monday, July 10, 2017

CFPB Issues Rule on Arbitration Agreements

Today the Consumer Financial Protection Bureau issued its final rule on arbitration agreements. Here’s the full 775-page document (the text of the regulation itself begins at p.747).

From the summary:

First, the final rule prohibits covered providers of certain consumer financial products and services from using an agreement with a consumer that provides for arbitration of any future dispute between the parties to bar the consumer from filing or participating in a class action concerning the covered consumer financial product or service. Second, the final rule requires covered providers that are involved in an arbitration pursuant to a pre-dispute arbitration agreement to submit specified arbitral records to the Bureau and also to submit specified court records. The Bureau is also adopting official interpretations to the regulation.

 

 

 

 

 

 

July 10, 2017 in Class Actions | Permalink | Comments (0)

Friday, July 7, 2017

Second Circuit Decision on Class Actions

Today the U.S. Court of Appeals for the Second Circuit issued its decision in In re Petrobras Securities. Among other things, the panel’s opinion addresses the role of “ascertainability” for class certification under FRCP 23:

“We take this opportunity to clarify the ascertainability doctrine’s substance and purpose. We conclude that a freestanding administrative feasibility requirement is neither compelled by precedent nor consistent with Rule 23, joining four of our sister circuits in declining to adopt such a requirement. The ascertainability doctrine that governs in this Circuit requires only that a class be defined using objective criteria that establish a membership with definite boundaries.”

Specifically, the Second Circuit rejected what it called “[t]he heightened ascertainability test, as articulated by the Third Circuit,” which “treats administrative feasibility as an absolute standard: plaintiffs must provide adequate ‘assurance that there can be a reliable and administratively feasible mechanism for determining whether putative class members fall within the class definition.’”

“We conclude that an implied administrative feasibility requirement would be inconsistent with the careful balance struck in Rule 23, which directs courts to weigh the competing interests inherent in any class certification decision.”

Download Petrobras (2d Cir)

 

 

 

July 7, 2017 in Class Actions, Recent Decisions | Permalink | Comments (0)

Monday, June 12, 2017

SCOTUS Decision in Microsoft v. Baker: Appellate Jurisdiction & Class Actions

Today the Supreme Court issued its long-awaited decision in Microsoft Corp. v. Baker, a case for which cert was granted nearly a year and a half ago. The plaintiffs in the case had sought certification of a class action, but the district court refused. After failing to receive permission to appeal the class-certification ruling under Rule 23(f), the plaintiffs (in the words of Justice Ginsburg’s majority opinion) “stipulated to a voluntary dismissal of their claims ‘with prejudice,’ but reserved the right to revive their claims should the Court of Appeals reverse the District Court’s certification denial.”

Today’s decision finds that such a stipulated voluntary dismissal did not create appellate jurisdiction, although the Court splits 5-3 on the basis for that conclusion. Joined by Justices Kennedy, Breyer, Sotomayor and Kagan, Justice Ginsburg writes:

We hold that the voluntary dismissal essayed by respondents does not qualify as a “final decision” within the compass of §1291. The tactic would undermine §1291’s firm finality principle, designed to guard against piecemeal appeals, and subvert the balanced solution Rule 23(f) put in place for immediate review of class-action orders.

A concurring opinion by Justice Thomas (joined by Chief Justice Roberts and Justice Alito) concludes that there was a “final decision” for purposes of § 1291, because the district court’s order “dismissed all of the plaintiffs’ claims with prejudice and left nothing for the District Court to do but execute the judgment.” Justice Thomas, however, reasons that “the Court of Appeals lacked jurisdiction under Article III of the Constitution,” because “[w]hen the plaintiffs asked the District Court to dismiss their claims, they consented to the judgment against them and disavowed any right to relief from Microsoft.”

Justice Gorsuch—who was not yet on the Court at the time of oral argument—took no part in the case.

 

 

 

 

 

June 12, 2017 in Class Actions, Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Monday, April 17, 2017

Today’s SCOTUS Oral Arguments

Today’s oral arguments at the Supreme Court featured lots of civil procedure and federal courts issues. Transcripts below:

 

 

 

April 17, 2017 in Class Actions, Federal Courts, Standing, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Friday, April 7, 2017

Gold on Clientless Lawyers

Russell Gold has posted on SSRN his article, “Clientless” Lawyers, 92 Wash. L. Rev. 87 (2017). Here’s the abstract:

Class counsel and prosecutors have a lot more in common than scholars realize. These lawyers have clients, but their clients are diffuse and lack a formal decisionmaking structure. Because of the nature of their clients, class counsel and prosecutors have to make decisions for their clients that one would ordinarily expect clients to make — and indeed that legal ethics rules would expressly require clients to make in other contexts — such as decisions concerning objectives of representation or whether to settle or plead guilty. Both complex litigation and criminal law scholars recognize that these lawyers’ self-interests diverge from their clients’ interests. But the complex litigation and criminal law literatures discuss the ensuing accountability problem solely in their own spheres. This article considers the insights about accountability that complex litigation can learn from criminal law.

More specifically, the article argues that although there are real differences between the two systems, these differences do not justify the completely different approaches to accountability that the two contexts employ. Rather, the comparison suggests that internal checks within class counsel’s firm, between plaintiffs’ firms, or between third-party funders and class counsel can improve accountability, much as internal checks improve accountability within some prosecutors’ offices.

 

 

 

 

 

April 7, 2017 in Class Actions, Recent Scholarship | Permalink | Comments (0)

Wednesday, March 29, 2017

Engstrom on Retaliatory RICO and Tort Litigation

Nora Freeman Engstrom has posted on SSRN her article, Retaliatory RICO and the Puzzle of Fraudulent Claiming, 115 Mich. L. Rev. 639 (2017). Here’s the abstract:

Over the past century, the allegation that the tort liability system incentivizes legal extortion and is chock-full of fraudulent claims has dominated public discussion and prompted lawmakers to ever-more-creatively curtail individuals’ incentives and opportunities to seek redress. Unsatisfied with these conventional efforts, in recent years, at least a dozen corporate defendants have "discovered” a new fraud-fighting tool. They’ve started filing retaliatory RICO suits against plaintiffs and their lawyers and experts, alleging that the initiation of certain nonmeritorious litigation constitutes racketeering activity—while tort reform advocates have applauded these efforts and exhorted more “courageous” companies to follow suit.

Curiously, though, all of this has taken place against a virtual empirical void. Is the tort liability system actually brimming with fraudulent claims? No one knows. There has been no serious attempt to analyze when, how often, or under what conditions fraudulent claiming proliferates. Similarly, tort reformers support RICO’s use because, they say, conventional mechanisms to deter fraud fall short. But are conventional mechanisms insufficient? Hard to say, as there is no comprehensive inventory of the myriad formal and informal mechanisms already in use; nor do we have even a vague sense of how those mechanisms actually operate. Further, though courts have started to green-light retaliatory RICO actions, no one has carefully analyzed whether these suits are, on balance, beneficial. Indeed, few have so much as surfaced relevant risks. Addressing these questions, this Article attempts to bring overdue attention to a problem central to the tort system’s operation and integrity.

 

 

 

 

March 29, 2017 in Class Actions, Mass Torts, Recent Scholarship | Permalink | Comments (0)

Tuesday, March 21, 2017

March Oral Arguments at SCOTUS

Several interesting civil procedure cases on the Supreme Court’s March 2017 oral argument calendar (more details in the links)...

Today (3/21): Microsoft v. Baker

Tomorrow (3/22): Water Splash v. Menon

Monday (3/27): TC Heartland v. Kraft Foods

 

 

 

 

March 21, 2017 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, Supreme Court Cases | Permalink | Comments (0)

Friday, March 10, 2017

House of Representatives Passes H.R. 725 & H.R. 985

We covered earlier several bills that could make significant changes to federal civil procedure. Two of these passed the House of Representatives yesterday.

Stay tuned. Getting to 60 votes in the Senate will be a more difficult proposition.

 

 

 

 

March 10, 2017 in Class Actions, Current Affairs, Federal Courts, Federal Rules of Civil Procedure, Mass Torts, MDLs, Subject Matter Jurisdiction | Permalink | Comments (0)

Thursday, March 9, 2017

Malveaux on Selmi & Tsakos on the Impact of Wal-Mart v. Dukes

Now on the Courts Law section of JOTWELL is Suzette Malveaux’s essay, The Impact of Wal-Mart v. Dukes on Employment Discrimination Class Actions Five Years Out: A Forecast That Suggests More a Wave Than a Tsunami. Suzette reviews a recent article by Michael Selmi & Sylvia Tsakos, Employment Discrimination Class Actions After Wal-Mart v. Dukes, 48 Akron L. Rev. 803 (2015).

 

 

March 9, 2017 in Class Actions, Recent Scholarship, Weblogs | Permalink | Comments (0)

Monday, March 6, 2017

Lahav on Coffee on Entrepreneurial Litigation

Now on the Courts Law section of JOTWELL is Alexandra Lahav’s essay, (Almost) Everything You Wanted to Know About Class Actions. Alexandra reviews John Coffee’s recent book, Entrepreneurial Litigation: Its Rise, Fall, and Future.

 

 

 

March 6, 2017 in Class Actions, Recent Scholarship, Weblogs | Permalink | Comments (0)

Thursday, March 2, 2017

House May Receive Amendments to Bills on Rule 11, Class Actions, MDLs, and Joinder

The House of Representatives Committee on Rules has announced that it will meet the week of March 6 “to grant a rule that may provide a structured amendment process for floor consideration of” H.R. 720 (amendments to FRCP 11), H.R. 725 (on so-called “fraudulent” joinder), and H.R. 985 (on class actions and MDLs).

Hat tip: Adam Zimmerman

March 2, 2017 in Class Actions, Current Affairs, Federal Rules of Civil Procedure, Mass Torts, MDLs, Subject Matter Jurisdiction | Permalink | Comments (0)

Wednesday, February 22, 2017

Academic Commentary on the Pending Class Action Bill

From the Mass Tort Litigation Blog comes this list of academic commentary on the so-called "Fairness in Class Action Litigation Act," H.R. 985:

John Coffee (Columbia)

Howard Erichson (Fordham)

Myriam Gilles (Cardozo)  

Elizabeth Chamblee Burch (Georgia)  

 

February 22, 2017 in Class Actions | Permalink | Comments (0)

Tuesday, February 21, 2017

Law Student Writing Competition on Class Actions

Here’s the announcement for the American Association for Justice Class Action Litigation Group’s second annual law student writing competition:

Download CALG Writing Competition Rules 2016-2017

Deadline to submit is April 30, 2017.

 

 

 

February 21, 2017 in Class Actions | Permalink | Comments (0)

Friday, February 17, 2017

Five Questionable Bills About Civil Lawsuits Pass House Judiciary Committee

Five bills that would generally operate to favor corporate defendants in civil lawsuits have passed the House Judiciary Committee with blinding speed and have been referred to the full House: 

Bill

Title

Original sponsor

H.R. 985

Fairness in Class Action Litigation Act

Bob Goodlatte (R-VA-6)

H.R. 906

Furthering Asbestos Claim Transparency (FACT) Act

Blake Farenthold (R-TX-27)

H.R. 732

Stop Settlement Slush Funds Act

Bob Goodlatte (R-VA-6)

H.R. 725

Innocent Party Protection Act

Ken Buck (R-CO-4)

H.R. 720

Lawsuit Abuse Reduction Act

Lamar Smith (R-TX-21)

            We briefly described four of the bills here.  The bills are opposed by over 50 advocacy groups for civil rights, consumer protection, and environmental protection.  

February 17, 2017 in Class Actions, Current Affairs, Federal Courts, Federal Rules of Civil Procedure, Mass Torts, MDLs, Subject Matter Jurisdiction | Permalink | Comments (0)

Thursday, February 16, 2017

Eisenberg, Miller, and Germano on Attorneys' Fees in Class Actions

Theodore Eisenberg (deceased), Geoffrey Miller, and Roy Germano have posted on SSRN their paper Attorneys' Fees in Class Actions: 2009-2013, a follow-up to earlier studies.  

Abstract:

We study attorney fee awards in 458 class action settlements reported in the five years from 2009-2013. Despite the financial crisis and its many effects on our national life, little has changed in class action attorneys’ fees. Average percentage fees are in line with prior studies. The key determinant of the fee continues to be the size of the class recovery: the amazingly regular relationship between these variables continues in the present data. We continue to find a “scaling” effect, in the sense that fees as a percentage of the recovery decrease as the size of the recovery increases. As in the previous Eisenberg-Miller studies, we find that fees are a function of risk – larger fees in higher-risk cases – although in the most recent data the effect is only weakly statistically significant. We document an inverse relationship between the percentage fee and the lodestar multiplier: cases with lower percentage fees are associated with higher multipliers. Likewise lodestar multipliers tend to rise with the size of class recovery.

February 16, 2017 in Class Actions, Recent Scholarship | Permalink | Comments (0)

Monday, February 13, 2017

While Trump Distracts, Republicans Introduce Four Bills Restricting Ordinary Citizens’ Access to the Courts

Four bills have been introduced in Congress that would limit plaintiffs' access to the courts.  The title of each bill is misleading, in that the effect of each bill would be very different from what its title indicates. 

1.  Probably the most far-ranging bill is the so-called "Fairness in Class Action Litigation Act of 2017," H.R. 985.   

This bill would critically hobble class actions by making them much more difficult to certify and reducing the compensation to plaintiffs’ class action lawyers. 

The major provisions of the bill with respect to class actions are (this is not an exhaustive list):

Continue reading

February 13, 2017 in Class Actions, Current Affairs, Federal Rules of Civil Procedure, Mass Torts, MDLs, Subject Matter Jurisdiction | Permalink | Comments (2)

Saturday, January 28, 2017

Today's Lawsuit Challenging Trump's Executive Order on Immigration

Here is the complaint in Darweesh v. Trump, which was filed early this morning in U.S. District Court for the Eastern District of New York:

Download Darweesh v Trump Complaint

Some coverage of the case:

 

 

 

 

January 28, 2017 in Class Actions, Current Affairs, Federal Courts, In the News | Permalink | Comments (0)