Monday, November 16, 2015

Public Interest Group Reports on November 5 Advisory Committee Meeting

Valerie Nannery, Senior Litigation Counsel for the Center for Constitutional Litigation, attended the November 5, 2015 meeting of the Advisory Committee on Civil Rules (agenda here) in Salt Lake City, Utah, and reported on the meeting in the Center's blog.

Highlights from the Center's report:

Rule 23: "The Committee has taken a 'settlement class' rule off of the agenda, and has put 'ascertainability' and Rule 68 on hold. The Committee also approved taking cy pres and 'issue classes' off of the agenda."

Duke Center's private "Guidelines" on proportionality in discovery: “the Duke guidelines and any presentation at the conferences do not come with the imprimatur of the Rules Committees,” and “The Duke Center, like other groups, is free to hold conferences or propose guidelines with respect to the rules or any other area of law. But they are not entitled to communicate, or suggest, that they bear the stamp of approval of the Rules Committees.”


November 16, 2015 in Class Actions, Federal Rules of Civil Procedure | Permalink | Comments (0)

Friday, November 13, 2015

Moore on Spokeo, Inc. v. Robins

I have recently posted on SSRN an article, "Spokeo, Inc. v. Robins: The Illusory 'No-Injury' Class Reaches the Supreme Court." The article is forthcoming in the newly-established St. Thomas Journal of Complex Litigation, which is currently welcoming submissions.


The Supreme Court’s grant of certiorari in Spokeo, Inc. v. Robins, 135 S. Ct. 1892 (Mem.) (2015) casts a shadow on the long-accepted constitutional principle that Congress has the authority to enact a statute to regulate corporations’ behavior for the public good, and to provide a private right of action to a person as to whom the statute is violated.  That right of action often provides for the award of a minimum amount of statutory damages as an alternative or in addition to actual damages. 

Congress has enacted numerous such statutes, including the one at issue in Spokeo, the Fair Credit Reporting Act (“FCRA”), which was passed forty-five years ago.  Suddenly, within the last ten years, corporate litigation activists have invented a new argument to avoid regulatory statutes that provide for statutory damages.  They claim that a “mere” statutory violation is an “injury in law” rather than the “injury in fact” required for Article III standing.  And they are launching a frontal assault on Congress’s constitutional authority to enact any statute that provides a private right of action for its violation, accusing Congress of thereby violating Article III by “creating standing.” 

Corporate litigation activists then apply to a class representative the argument that the violation of a person’s statutory rights is not an “injury in fact,” and call the result a “no-injury class.”  The appellation “no-injury class” is another misleading verbal weapon of recent vintage.

This article hopes to makes three small contributions to the burgeoning literature on Spokeo, which at this writing has not yet been decided.  First, the Question Presented to the Supreme Court is misleading and overbroad.  It implies that the plaintiff in Spokeo, Thomas Robins, has been found not to have suffered any “concrete harm,” but the case is still at the pleading stage.  Thus, the question is simply whether Robins’s complaint contains sufficient allegations of injury, assumed to be true on a motion to dismiss, to establish Article III standing.  Further, the Question Presented implies that a ruling involving the FCRA (the statute at issue in Spokeo) will be generalizable to all other statutes that create a private right of action and allow statutory damages, without recognizing the many variations in these statutes’ language and operation.

Second, the article sketches the historical legal difference between the words “injury” and “damage.”  “Injury” connotes the violation of one’s legal right, even if one has not sustained any actual harm, while “damage” means a loss or harm, even if one has no legal right to sue.  The Supreme Court has adhered to these meanings since Marbury v. Madison.  Given that historical distinction, the term “injury in fact” is confusing and somewhat self-contradictory: under the definition of “injury” as the violation of a legal right, the term “injury in fact” is akin to “violation of a legal right in fact.”  Further, the petitioner Spokeo’s newly-discovered phrase “injury in law” – which has never been used in a single United States Supreme Court opinion -- is redundant.  Under the definition of “injury” as the violation of a legal right, the phrase “injury in law” is akin to “legal right in law.”  But however nonsensical, the epithet “injury in law” serves a useful purpose for corporate activists: it minimizes, even ridicules, so-called “technical,” “trifling” statutes that regulate corporate behavior.   

Finally, the petitioner Spokeo and its numerous business-oriented amici could have made the very same argument they are making in Spokeo – that the violation of the Fair Credit Reporting Act is not itself an “injury in fact” – only nine years ago in Safeco Insurance Co. v. Burr, 551 U.S. 47 (2007), but did not.  In Safeco, the putative class alleged that insurers Safeco and GEICO had not complied with the FCRA’s requirement of sending the class members notice of an “adverse action” when the insurers did not charge them the lowest available insurance rate because of a less-than-perfect credit report.  The defendants’ amici repeatedly stated that the plaintiffs in Safeco had not alleged any “actual harm” or “actual damages” even though they sought $1,000 in statutory damages for each member of the class (as the FCRA allows).  Thus, Safeco presented exactly the same alleged “no-injury” situation, under exactly the same statute, as Spokeo.  Yet the Safeco petitioners and their amici (four of which are also amici in Spokeo) failed to argue that the class representatives lacked Article III standing or that violation of the FCRA was not an “injury in fact.”  It seems fair to ask why not, if the Article III argument is so compelling.  One might speculate that the reason is that corporate litigation activists have only recently contrived the “statutory-violation-is-not-an-injury-in-fact” argument.                        

November 13, 2015 in Class Actions, Recent Scholarship, Standing, Supreme Court Cases | Permalink | Comments (0)

Tuesday, November 10, 2015

Today’s SCOTUS Oral Argument in Tyson Foods v. Bouaphakeo

The Supreme Court heard oral argument today in Tyson Foods, Inc. v. Bouaphakeo, which presents the questions:

(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.

Here is the transcript. For our earlier coverage of the case, see here and here.



November 10, 2015 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Saturday, November 7, 2015

Wasserman on Fletcherian Standing, Merits, and Spokeo, Inc. v. Robins

Professor Howard Wasserman has posted on SSRN his essay, Fletcherian Standing, Merits, and Spokeo, Inc. v. Robins.


This essay offers an exercise in wishful jurisdictional and procedural thinking. As part of a Supreme Court Roundtable on Spokeo, Inc. v. Robins, it argues for William Fletcher's conception of standing as an inquiry into the substantive merits of a claim and of whether the plaintiff has a valid cause of action. This approach is especially necessary in statutory cases; along with its constitutional power to create new rights, duties, and remedies, Congress should have a free hand in deciding who and how those rights and duties should be enforced. Spokeo, which involves a claim for damages for publication of allegedly false consumer-credit information in violation of a federal statute, illustrates the wisdom and benefits of Fletcher's approach.

November 7, 2015 in Class Actions, Recent Scholarship, Standing | Permalink | Comments (1)

Saturday, October 17, 2015

Roommate of Phone Customer Has Standing to Sue for TCPA Violation

Mark Leyse filed a putative class action against Bank of America after a telemarketer seeking to advertise BoA’s credit cards left a message on the landline shared by Leyse and his roommate.  The message allegedly violated the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227(b)(1)(B), which prohibits any person from “initiat[ing] any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by rule or order by the [Federal Communications] Commission.”


Bank of America filed an initial Rule 12(b)(6) motion to dismiss on grounds of collateral estoppel.  The district court agreed, but the Third Circuit reversed.  


Bank of America then filed a second 12(b)(6) motion to dismiss on the ground that Leyse lacked statutory standing to sue because his roommate, not he, is the telephone subscriber “and intended recipient of the call, as the number was associated with [his roommate’s] name in the telemarketing company’s records.”  Again, the district court dismissed, and the Third Circuit reversed.


The court first held that it was error for the district court to have considered BoA’s second 12(b)(6) motion.  A dismissal for lack of statutory standing is not jurisdictional, but “is effectively the same as a dismissal for failure to state a claim” pursuant to Rule 12(b)(6).  Rule 12(h)(2) provides that a second motion to dismiss for failure to state a claim “may be raised (A) in any pleading allowed or ordered under Rule 7(a); (B) by a motion under Rule 12(c); or (C) at trial” – none of which had occurred.  However, the court held that the error did not require reversal:


A district court’s decision to consider a successive Rule 12(b)(6) motion to dismiss is usually harmless, even if it technically violates Rule 12(g)(2). So long as the district court accepts all of the allegations in the complaint as true, the result is the same as if the defendant had filed an answer admitting these allegations and then filed a Rule 12(c) motion for judgment on the pleadings, which Rule 12(h)(2)(B) expressly permits.


            Thus, the court continued to the merits of the motion.  The TCPA “was intended to combat, among other things, the proliferation of automated telemarketing calls (known as “robocalls”) to private residences, which Congress viewed as a nuisance and an invasion of privacy.” 


As was forcefully stated by Senator Hollings, the Act’s sponsor, “Computerized calls are the scourge of modern civilization. They wake us up in the morning; they interrupt our dinner at night; they force the sick and elderly out of bed; they hound us until we want to rip the telephone right out of the wall.”


Accordingly, the Act “provides that a ‘person or entity’ may bring an action to enjoin violations of the statute and recover actual damages or $500 in statutory damages per violation.” 


Noting a split among courts in interpreting the statutory standing to sue under this section, the Third Circuit found that Leyse fell “within the class of plaintiffs Congress has authorized to sue.”


[I]t is clear that the Act’s zone of interests encompasses more than just the intended recipients of prerecorded telemarketing calls. It is the actual recipient, intended or not, who suffers the nuisance and invasion of privacy. This does not mean that all those within earshot of an unwanted robocall are entitled to make a federal case out of it. Congress’s repeated references to privacy convince us that a mere houseguest or visitor who picks up the phone would likely fall outside the protected zone of interests. On the other hand, a regular user of the phone line who occupies the residence being called undoubtedly has the sort of interest in privacy, peace, and quiet that Congress intended to protect.


Leyse v. Bank of America Nat'l Ass'n, No. 14-4073 (3d Cir. Oct. 14, 2015).


October 17, 2015 in Class Actions, Recent Decisions, Standing | Permalink | Comments (0)

Wednesday, October 14, 2015

Today’s SCOTUS Oral Argument in Campbell-Ewald Co. v. Gomez

The Supreme Court heard oral argument today in Campbell-Ewald Co. v. Gomez, which presents some important questions regarding Article III, mootness, and class actions. The transcript is here.



October 14, 2015 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Klonoff on Class Actions in 2025

Bob Klonoff has posted on SSRN a draft of his article, Class Actions in the Year 2025: A Prognosis, which will be published in the Emory Law Journal. Here’s the abstract:

In this Article, I reflect on what the federal judiciary has done in recent years, and I attempt to predict what the class action landscape will look like a decade from now. My predictions fall into several categories:

First, I discuss whether the basic class action framework — Federal Rule of Civil Procedure 23 — is likely to be revamped in the next decade. I predict that there is little chance that the basic structure of Rule 23 will change. Calls by some scholars to rewrite Rule 23 will not make headway. The only caveat to this prediction is that either Congress or the Supreme Court could repudiate so-called no injury classes — i.e., classes in which some unnamed class members suffered no harm — a result that would not change the text of Rule 23 but would adversely impact certain kinds of class actions, such as consumer cases.

Second, I examine the likely state of class action jurisprudence in the year 2025. In that regard, I make several predictions: Securities class actions will continue to flourish, but consumer, employment, and personal injury class actions will continue to decline. The Supreme Court will curtail the ability of plaintiffs to establish liability or damages through expert statistical sampling (referred to frequently as “trial by formula”). The “ascertainability” requirement imposed by the Third Circuit will be repudiated by the Supreme Court or by the Third Circuit itself. The Supreme Court will conclude, as have numerous circuits, that an unaccepted offer of judgment to a class representative pursuant to Federal Rule of Civil Procedure 68 is a legal nullity and does not moot the individual’s claim or the putative class action. Defendants will advance several arguments against class certification that, until now, have had only limited success. These will include expansive applications of Rule 23’s typicality, predominance, and superiority requirements. Although defendants will not be fully successful with these arguments, they will succeed in erecting some additional barriers to class certification. During the next decade, courts addressing class certification and the fairness of settlements will give greater weight to allegations of unethical behavior by class counsel and by counsel representing objectors to settlements. The future of class actions will ultimately lie in the hands of a small number of appellate court judges who have a special interest and expertise in aggregate litigation.

Third, I focus on the administration and resolution of class actions and offer two predictions: (1) by 2025, a significantly larger number of class action cases will go to trial than at any time since 1966; and (2) technological changes will fundamentally alter the mechanics of class action practice, offering more sophisticated tools for notice, participation by class members, and distribution of settlement proceeds.



October 14, 2015 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, Recent Scholarship | Permalink | Comments (1)

Procedure Scholars Mostly Support Employees in Tyson Foods v. Bouaphakeo

Four amicus briefs by law professors have been filed in the Supreme Court in Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146 (to be argued November 10, 2015).  Three of the law professors’ briefs support the respondent (the plaintiff class), and the fourth supports neither party.


The case has been a marathon, eight years and counting.  In 2007, plaintiffs filed a class action (under Iowa state law and under Rule 23(b)(3)) and representative action (under the Fair Labor Standards Act) in the Northern District of Iowa.  Plaintiffs sued on behalf of employees of Defendant Tyson Foods at its meat processing facility in Storm Lake, Iowa.  The class sought unpaid overtime wages for uncompensated time spent donning and doffing clothing and protective equipment and other associated tasks.


In 2008, the district court certified both a collective action class and a Rule 23(b)(3) class, narrowing the class originally sought by the plaintiffs to include only those employees paid under a “gang time” compensation system in the Kill, Cut, or Retrim departments.  Over 500 employees opted into the FLSA class.  There are a few thousand members of the Rule 23(b)(3) class.


After losing the class certification motion, Tyson filed a motion to consolidate the case via multidistrict litigation with other, similar cases against Tyson.  However, the Judicial Panel on Multidistrict Litigation denied consolidation because discovery was likely to “proceed on a plant-by-plant basis.” 


The plaintiff class survived a motion for summary judgment and a motion to decertify the class in 2011. 


After a nine-day jury trial, the jury returned a verdict for the class of $2,892,378.70. With liquidated damages, the final judgment totaled $5,785,757.40.  The Eighth Circuit affirmed the judgment.  Bouaphakeo v. Tyson Foods, Inc., 765 F.3d 791, 796 (8th Cir. 2014), cert. granted, 135 S. Ct. 2806 (2015).


As Tyson phrases them, the two Questions Presented in the Supreme Court are:


(1)   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; and

(2)   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.


Three of the law professors’ briefs address the first question:

Brief of Civil Procedure Scholars as Amici Curiae in Support of Neither Party

(Allan Erbsen, Kevin M. Clermont, Richard D. Freer, Mark Moller, and Howard M. Wasserman)


Brief of Amici Curiae Civil Procedure Professors in Support of Respondents  

(Jonah B. Gelbach, Stephen B. Burbank, J. Maria Glover, Arthur R. Miller, Alexander A. Reinert, Adam N. Steinman, and Tobias Barrington Wolff) 


Brief of Amicus Curiae Complex Litigation Law Professors in Support of Respondents  

(Sergio J. Campos, Suzette M. Malveaux, David Rosenberg, Michael D. Sant’Ambrogio, Jay Tidmarsh, and Adam S. Zimmerman )


One of the law professors’ briefs addresses the second question:


Brief of Amici Curiae Professors Alexandra D. Lahav & Sachin S. Pandya in Support of Respondents 




October 14, 2015 in Class Actions, Supreme Court Cases | Permalink | Comments (0)

Monday, October 12, 2015

Oral Argument in DIRECTV v. Imburgia: Arbitration Clauses in California, Again

The Supreme Court heard oral argument in DIRECTV v. Imburgia, No. 14-462, on October 6.  The issue is "Whether the California Court of Appeal erred by holding, in direct conflict with the Ninth Circuit, that a reference to state law in an arbitration agreement governed by the Federal Arbitration Act requires the application of state law preempted by the Federal Arbitration Act."


Ronald Mann at SCOTUSBlog has an analysis here.  The transcript is here.

October 12, 2015 in Class Actions, Supreme Court Cases | Permalink | Comments (0)

Friday, September 25, 2015

Means and Seiner on Navigating the Uber Economy


Professors Benjamin Means and Joseph Seiner (University of South Carolina School of Law) have posted on SSRN their essay, "Navigating the Uber Economy," forthcoming in U.C. Davis Law Review.


In litigation against ride-sharing companies Uber and Lyft, former drivers have alleged that they were misclassified as independent contractors and denied employment benefits. The companies have countered that they do not employ drivers and merely license access to a platform that matches those who need rides with nearby available drivers. At stake are the prospects, not only for Uber and Lyft, but for a nascent, multi-billion dollar "on-demand" economy.

Unfortunately, existing laws fail to provide adequate guidance regarding the distinction between independent contractors and employees, especially when applied to the hybrid working arrangements characteristic of a modern economy. Under the Fair Labor Standards Act and analogous state laws, courts consider several factors to assess the "economic reality" of a worker's alleged employment status; yet, there is no objective basis for prioritizing those factors.

This Essay argues that the classification of workers as independent contractors or employees should be shaped by an overarching inquiry: how much flexibility does the individual have in the working relationship? Those who can choose the time, place and manner of the work they perform are more independent than those who must accommodate themselves to a business owner's schedule. Our approach is novel and would provide an objective basis for adjudicating classification disputes, especially those that arise in the context of the on-demand economy. By reducing legal uncertainty, we would ensure both that workers receive appropriate protections under existing law and that businesses are able to innovate without fear of unknown liabilities.

September 25, 2015 in Class Actions, Current Affairs, In the News, Recent Scholarship | Permalink | Comments (0)

Wednesday, September 2, 2015

Possible "Coming Liberal Disaster" on Class Actions, Too

Howard Bashman at How Appealing brought attention to a post by Jeffrey Toobin in The New Yorker about a possible upcoming “disaster” for liberals in the October 2015 term in the Supreme Court.  Mr. Toobin included affirmative action, abortion, and public-employee unions in “the subjects before the Justices [that] appear well suited for liberal defeats.” 


Mr. Toobin could also have included private-law class actions.  The Court has granted cert in four cases that could hobble class actions well before the Civil Rules Advisory Committee moves forward in its consideration of the topic.  As we’ve previously reported (but not all in one post, if memory serves), these four cases are:

Continue reading

September 2, 2015 in Class Actions, In the News, Standing, Supreme Court Cases | Permalink | Comments (0)

Monday, August 31, 2015

Ninth Circuit Again Resurrects RESPA Class in Edwards v. First American

           Remember Edwards v. First American Corp., the putative class action under RESPA filed in 2007?  The Supreme Court granted cert in 2011 on the issue (as slightly expanded on this blog at the time): “Does [a private purchaser of real estate settlement services] have standing to sue under Article III, § 2 of the United States Constitution, which provides that the federal judicial power is limited to "Cases" and "Controversies" and which this Court has interpreted to require the plaintiff to "have suffered an 'injury in fact,'" Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992), [in the absence of any claim that the alleged violation affected the price, quality, or other characteristics of the settlement services provided]?” 

            After full briefing and oral argument, the Supreme Court issued a one-sentence order in 2012 dismissing the writ as improvidently granted.  (Another case, Spokeo v. Robins, is currently pending before the Court for the October 2015 term and supposedly involves somewhat the same issue.)

             Anyway, after the Supreme Court dismissed the writ in Edwards, the case trundled along in the district court.  Plaintiffs moved for class certification of a “nationwide class consisting of all home buyers who entered into a federally-related mortgage transaction using one of thirty-eight title agencies that sold a minority ownership interest to First American and, in the same transaction, agreed to refer future title insurance business to First American.”  The district court denied class certification (again).

             The Ninth Circuit just reversed in part (again).  First, the court disagreed with the district court’s holding that “individual inquiries were required to determine whether First American overpaid for its ownership interests in each title agency.”   

Continue reading

August 31, 2015 in Class Actions, Recent Decisions | Permalink | Comments (0)

Thursday, July 16, 2015

Note on Class Ascertainability

The Yale Law Journal has published a note by student Geoffrey C. Shaw on Class Ascertainability.  It may be of interest given the Civil Rules Advisory Committee's recent report to the Standing Committee that "ascertainability" perhaps should be added to the list of class action topics currently being studied by the Rule 23 Subcommittee.

The May 2, 2015 Advisory Committee Report (available at p. 178 of the Standing Committee's Agenda Book for its May 2015 meeting) states:

Recently there has been much concern about what must be shown to demonstrate that a proposed class is “ascertainable,” largely resulting from Third Circuit decisions.  This concern seems to be limited to Rule 23(b)(3) class actions.  See Shelton v. Bledsoe, 775 F.3d 554 (3d Cir. 2014) (ascertainability is not required in a class action seeking only injunctive relief).  And the Third Circuit treatment of the issue may be evolving.  See, e.g., Byrd v. Aaron’s Inc., ___ F.3d ___, 2015 WL 3887938 (3d Cir., April 16, 2015), in which the panel stated that “it is necessary to address the scope and source of the ascertainability requirement that our cases have articulated” and added that “[w]e seek here to dispel any confusion.”  (Judge Rendell, concurring in reversal of the district court’s denial of certification, suggested that “it is time to retreat from our heightened ascertainability requirement in favor of following the historical meaning of ascertainability under Rule 23.”)

The Subcommittee intends to examine this issue; it is not certain at present whether a rule change might be indicated. 

The abstract for the Note in the Yale Law Journal on Class Ascertainability is:

ABSTRACT. In recent years, federal courts have been enforcing an “implicit” requirement for class certification, in addition to the explicit requirements established in Rule 23 of the Federal Rules of Civil Procedure. The ascertainability requirement insists that a proposed class be defined in “objective” terms and that an “administratively feasible” method exist for identifying individual class members and ascertaining their class membership. This requirement has generated considerable controversy and prevented the certification of many proposed classes. The requirement has taken a particular toll on consumer class actions, where potential class members are often unknown to the representative plaintiffs, often lack documentary proof of their injury, and often do not even know they have a legal claim at all.

This Note explores the ascertainability requirement’s conceptual foundations. The Note first evaluates the affirmative case for the requirement and finds it unpersuasive. At most, Rule 23 implicitly requires something much more modest: that classes enjoy what I call a minimally clear definition. The Note then argues that the ascertainability requirement frustrates the purposes of Rule 23 by pushing out of court the kind of cases Rule 23 was designed to bring into court. Finally, the Note proposes that courts abandon the ascertainability requirement and simply perform a rigorous analysis of Rule 23’s explicit requirements. This unremarkable approach to class certification better reflects what the Rule says and better advances what the Rule is for.


July 16, 2015 in Class Actions, Recent Scholarship | Permalink | Comments (0)

Tuesday, July 14, 2015

Burbank and Farhang on Class Actions and the Counterrevolution Against Federal Litigation

Stephen B. Burbank and Sean Farhang have posted on SSRN their article, Class Actions and the Counterrevolution Against Federal Litigation.


In this article we situate consideration of class actions in a framework, and fortify it with data, that we have developed as part of a larger project, the goal of which is to assess the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we have documented how the Executive, Congress and the Supreme Court (wielding both judicial power under Article III of the Constitution and delegated legislative power under the Rules Enabling Act) fared in efforts to reverse or dull the effects of statutory and other incentives for private enforcement. We focus here on one particular instrument of private enforcement, but we do so in the light of our broader research. We begin with a sketch of the modern class action. We then consider how attempts to curb its enforcement potential have fared in the elected branches, at the hands of those who brought it forth – the Advisory Committee on Civil Rules – and, finally, in the decisions of the Supreme Court. We conclude that institutional patterns in the domain of class actions largely track the story we discern in our larger project: the Supreme Court has been, by far, the most effective institutional agent of retrenchment.

July 14, 2015 in Class Actions, Recent Scholarship | Permalink | Comments (0)

Wednesday, July 1, 2015

Post-Obergefell Update from Alabama: Federal Injunction Now in Effect

In the wake of last week’s U.S. Supreme Court decision in Obergefell, federal judge Callie Granade issued an order today confirming that her earlier classwide preliminary injunction in the Strawser case is “now in effect and binding on all members of the Defendant Class.”

According to one report, attorneys for the Strawser plaintiffs will be seeking contempt rulings against probate judges who issue marriage licenses to opposite-sex couples but not same-sex couples.


July 1, 2015 in Class Actions, Current Affairs, Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Saturday, June 27, 2015

The Obergefell Aftermath in Alabama

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.




June 27, 2015 in Class Actions, Current Affairs, Federal Courts, In the News, Recent Decisions, State Courts, Supreme Court Cases | Permalink | Comments (1)

Wednesday, June 24, 2015

House Judiciary Committee Passes "Fairness in Class Action" Bill

The House Judiciary Committee "reported favorably to the House" the so-called "Fairness in Class Action Litigation Act of 2015" this morning, splitting along party lines.  

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. gives this bill a 19% chance of passing.  The US Chamber of Commerce is already reported to be celebrating.

June 24, 2015 in Class Actions, Current Affairs, Federal Rules of Civil Procedure | Permalink | Comments (0)

Monday, June 8, 2015

SCOTUS Cert. Grant on Class Actions: Tyson Foods v. Bouaphakeo

Today the Supreme Court granted certiorari in Tyson Foods, Inc. v. Bouaphakeo (No. 14-1146. The questions presented are:

(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.




June 8, 2015 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Thursday, June 4, 2015

The House Judiciary Committee Hearing on the Class Action Fairness Act, continued

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.

June 4, 2015 in Class Actions, Federal Rules of Civil Procedure | Permalink | Comments (0)

Wednesday, June 3, 2015

Alabama Same-Sex Marriage Litigation: Back to the Alabama Supreme Court?

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.”

Stay tuned.



June 3, 2015 in Class Actions, Current Affairs, Federal Courts, Recent Decisions, State Courts, Supreme Court Cases | Permalink | Comments (0)