Wednesday, September 30, 2015

House Judiciary Committee Hearing on "Fraudulent Joinder Prevention Act"

The House Judiciary Committee held a hearing yesterday on a bill entitled “The Fraudulent Joinder Act of 2015.”  Minority witness, Professor Lonny Hoffman, testified against the bill.

The bill, H.R. 3624, provides:

Section 1447(c) of title 28, United States Code, is amended by adding at the end the following:

“A motion for remand, and any opposition thereto, may include affidavit or other evidence showing a plausible claim for relief against each nondiverse defendant, or the lack thereof, or indicating a good faith intention to prosecute the action against each nondiverse defendant or to seek a joint judgment, or the lack of such a good faith intent. The district court shall deny a motion to remand if it finds that the complaint does not state a plausible claim for relief against a nondiverse defendant under applicable state law or there is no good faith intention to prosecute the action against a nondiverse defendant or to seek a joint judgment.”

Professor Hoffman explains the bill’s effect: “The bill would replace the existing common law fraudulent joinder test with a statutory test that places the burden on the plaintiff to prove that her claims against the non-diverse defendant are ‘plausible’ and brought in ‘good faith.’ Overall, the bill would make proving fraudulent joinder much easier than it is under current law.”

One of the majority witnesses, Elizabeth Milito, Senior Executive Counsel of the National Federation of Independent Business Small Business Legal Center, asserted the need for the bill:

[F]or a small business owner being served with lawsuit generates significant trepidation, disgust, and yes, uncertainty.

Because litigation entails angst and great expense for small businesses, NFIB is pleased to see this Committee’s attention focused on the issue of fraudulent joinder. Fraudulent joinder remains a source of confusion and unnecessary litigation in our courts and impacts far too many innocent small businesses. The situation unfolds as follows: plaintiffs’ attorneys will name a small business – such as a local pharmacy or insurance agent – with little connection to the complaint in order to deny the federal courts of jurisdiction. In many instances, the plaintiff has no intention of imposing liability on the fraudulently joined party. With courts divided over the standard for finding that a defendant is fraudulently joined, the small business is forced to engage in protracted litigation when all they want is to be dismissed from the case entirely.


In opposition to the bill, Professor Hoffman’s introduction summarizes his testimony:

There is no warrant for amending 28 U.S.C. §1447. More than a century old, fraudulent joinder law is well-settled and strikes the proper balance among competing policies in how it evaluates the joinder of non-diverse defendants. With recognition that there are sound reasons for not trying to exhaustively examine the merits of the plaintiff’s claims immediately after removal, courts across the circuits uniformly impose a high burden on the defendant to demonstrate that a non-diverse defendant’s joinder was improper. That burden can only be met if the defendant establishes that the joinder of the diversity-destroying party in the state court action was made without a reasonable basis of proving any liability against that party. By greatly expanding the scope of the fraudulent joinder inquiry, this bill would displace the well-functioning law with wasteful adjudications that district courts are ill-equipped to undertake at the remand stage, burdening the judicial system and raising litigation costs for all parties, especially for plaintiffs on whom this bill imposes the burden of proof. Finally, by requiring that courts resolve merits inquiries that under current law are decided by state courts, the proposed amendments to §1447 raise federalism concerns.

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September 30, 2015 in Current Affairs, Federal Courts, Subject Matter Jurisdiction | Permalink | Comments (0)

Monday, September 28, 2015

Podcast of Professors Thomas and Lerner in Debate on the Civil Jury

Professor Suja Thomas (University of Illinois College of Law) and Professor Renee Lettow Lerner (George Washington University School of Law) recently participated in a debate on civil juries under the auspices of the Federalist Society's Litigation Practice Group.  Professor Thomas argued in favor of the civil jury, while Professor Lerner argued the civil jury's downsides. 

September 28, 2015 in Current Affairs | 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)

Tuesday, September 15, 2015

Bank Reportedly Spends $1.2 Million Fighting Case Rather Than Settle for $200,000

NPR this morning has a story entitled "When Cyber Fraud Hits Businesses, Banks May Not Offer Protection."  It describes some instances in which small businesses that had their bank accounts drained by cyber fraud were unpleasantly surprised to find that their banks were not legally obligated to reimburse them (unlike in most cases for bank accounts owned by individuals). 


The story of one company contradicted the frequent assertion by defendants that defendants in civil suits are often "forced to settle" because the costs of defense exceed the claim.  One of the victimized businesses found its checking account down by $545,000 due to cyber fraud: 


[The owner of the construction company involved] thought his bank . . . would reimburse him. It refused, and he sued. [The owner] says the bank threw a huge amount of resources at the case. He says he discovered in mediation that the bank had spent "in excess of $1.2 million fighting this, when we offered to settle this for $200,000."

[The construction company] lost the first round but won on appeal when a panel of judges concluded [the bank's] security had not been commercially reasonable. 


Another small business lost $14,000 due to cyber fraud, and its owner  "considered suing [his bank], but was advised he'd spend much more on legal fees than he'd recover." 


September 15, 2015 in Current Affairs, In the News | Permalink | Comments (0)

Friday, September 11, 2015

How to Improve Your State's "Lawsuit Climate": Reduce the State's Population

So you send a survey to people whose job depends on how well they do defending their $100-million-plus employer in court and ask them how fair and reasonable the courts are.  If they just lost a big verdict in Texas, they probably think juries in Texas are unfair and the judge who tried the case is an idiot.  (A friend who was born and raised on a farm said that it was like asking foxes to rate how fairly the farmer guarded the henhouse.)

Compile all those subjective answers, assign some ordinal numbers to them, and rank the fifty states: that’s about the long and short of the U.S. Chamber Institute for Legal Reform’s 2015 "lawsuit climate survey" conducted by Harris Poll "to explore how fair and reasonable the states’ tort liability systems are perceived to be by U.S. businesses."  (The full report is here.

To be fair, if you read the report carefully, it does not misrepresent what it purports to show.  It never says it is a random survey (and it isn't).  It explains that the only people asked to participate are lawyers and other executives who are in charge of litigation for companies with at least $100 million in annual revenues.  (It doesn’t say, but it’s fairly obvious, that these companies are overwhelmingly defendants, not plaintiffs, in lawsuits.)  The report admits that what it measures are these executives’ “perceptions” (p. 3 of the Executive Summary), not any objectively quantifiable element of a state’s justice system, such as the caseload per judge.

But the sheer repetition of the ensuing headlines (egged on by the Chamber's state-specific press releases) encourages the casual reader to elide the difference between objective reality and the subjective perceptions of a very distinct interest group.  A sampling:

"Florida's 'lawsuit climate' hits all-time low, Chamber survey says" (Tampa Bay Times)

"Survey: Missouri’s Lawsuit Climate Hits All-Time Low, Ranks Among Nation’s Worst" (Associated Press, via ABC's WAAY-TV)

Once again, Louisiana’s lawsuit climate ranked second worst in US (Greater Baton Rouge Business Report)

And that's not even counting the "coverage" of the survey by news-like websites that are owned by the U.S. Chamber of Commerce, such as the West Virginia Record and the Madison-St. Clair Record, or op-eds planted by the U.S. Chamber Institute for Legal Reform.  

Anyway, the purpose of this post is not to go through the myriad glaring problems with the survey. But I can't resist pointing out one of many examples: the survey respondents really couldn't help calling Cook County, Illinois or Miami-Dade County "among the worst city or county courts."  That is because the survey respondents were given twelve listed locations to pick from, which included those two locations, and the respondents would have had to think of any other jurisdiction on their own. Question 637 (p. 127 of the full report) is:

Thinking about the entire country, which of the following do you think are the worst city or county courts? That is, which city or county courts have the least fair and reasonable litigation environment for both defendants and plaintiffs? Please select up to two responses.    

1 Chicago or Cook County, Illinois

2 Los Angeles, California

3 San Francisco, California

4 Philadelphia, Pennsylvania

5 Madison County, Illinois

6 Miami or Dade County, Florida

7 New Orleans or Orleans Parish, Louisiana

8 New York, New York

9 East Texas

10 St. Louis, Missouri

11 Detroit, Michigan

12 Washington, DC

13 Other [ONLINE: (Please specify)] [ PHONE: CAPTURE RESPONE]

14 Not sure

99 Decline to answer [EXCLUSIVE] [PHONE ONLY]

The twelve listed locations were randomized for each survey respondent, so they were not necessarily listed in the order above for any given respondent.  But it's a great example of the availability heuristic.

Anyway, setting aside the problems with the survey, I noticed this: in general, the fewer people who live in a state, the better that state's "lawsuit climate" is perceived.    

Many of the top-ranked states (with the “best” perceived “litigation climates”) in the Chamber's survey are states with the fewest people.  Using census data for 2014, I ranked the states from 1 to 50, from most populous to least populous.  For example, California has the largest population, so is ranked #1, and Wyoming has the fewest people, so it's ranked #50.  I then compared the 15 least populous states (ranked 36-50) with the "best" 15 states in the U.S. Chamber's survey (ranked 1-15).  Ten states were on both lists: Alaska, Delaware, Idaho, Maine, Nebraska, New Hampshire, North Dakota, South Dakota, Vermont, and Wyoming.   

In other words, the Chamber rankings are negatively correlated with the population rankings: in general, as the state's population goes down, the perception of its "lawsuit climate" goes up.   Here is a scatterplot of the fifty states and a fitted line:

 Pop and chamber ranks

I’ve labeled two of the fifty data points as examples.  California is ranked #1 in population (the y-axis) and #47 in the Chamber survey (the x-axis).  Delaware is ranked #45 in population and #1 in the Chamber survey (the “best” in the country).

So what does this all mean?  Of course, correlation is not the same as causation.  But maybe if there are fewer people, there are fewer things to go wrong (industrial accidents, adverse drug reactions, discriminatory employment decisions), so there are fewer lawsuits.  Just a simple-minded theory.




September 11, 2015 in Current Affairs, In the News | 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)

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)

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.”

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May 21, 2015 in Class Actions, Current Affairs, Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Tuesday, May 12, 2015

Med-Mal Filings in Pennsylvania Decline

From The Legal Intelligencer:

Medical malpractice case filings across Pennsylvania are at their lowest since statewide tracking began in 2000, according to statistics from the Administrative Office of Pennsylvania Courts.

In 2014, according to the AOPC, 1,463 new medical malpractice cases were filed, representing a 46.5 percent decrease from the number of cases filed during the “base years” of 2000 to 2002, when statewide medical malpractice case recording began.

The numbers showed a significant downward trend after the implementation of the certificate of merit rule in 2003 and a subsequent rule in 2004 designed to curb “venue shopping,” according to the AOPC.  . . .

There were 129 jury verdicts in 2014, of which 81% were in favor of defendants.

May 12, 2015 in Current Affairs, State Courts | Permalink | Comments (0)

Monday, April 20, 2015

Shaq, Zippo & Shirley Jones

Earlier this month, U.S. District Judge Avern Cohn of the Eastern District of Michigan granted a Rule 12(b)(2) motion to dismiss in Binion v. O’Neal. The opinion is here.

The movant was defendant Shaquille O’Neal. The plaintiff Jahmel Binion—a Michigan resident—alleged claims for invasion of privacy, intentional infliction of emotional distress, defamation, and general negligence based on posts Shaq had made on Instagram and Twitter that included pictures of Binion. Although the court stated that Shaq’s posts were “highly offensive,” it found after a discussion of Zippo and the “effects test” from Calder v. Jones that jurisdiction in Michigan would not comport with due process.

Here’s the New York Daily News with some background on the incident that gave rise to the lawsuit.




April 20, 2015 in Current Affairs, In the News, Recent Decisions, Sports | Permalink | Comments (0)

Friday, April 3, 2015

Plus ça change . . . male attorneys still disciplined more than female attorneys

Just received the annual report of the Oklahoma Bar Association on attorney discipline in calendar year 2014.  (86 Okla. B.J. No. 8, p. 624.)  All 16 attorneys publicly disciplined in 2014 in Oklahoma were men (based upon their first names).   Of three other attorneys charged with disciplinary violations who were exonerated, two were women. 

Although Oklahoma is a relatively small and perhaps unrepresentative state, the outsized proportion of male disciplined attorneys is consistent with my study of all 3,500 publicly-disciplined US attorneys in the year 2000.  My co-author Kevin Simmons and I found that although male and female attorneys comprised 76.4% and 23.6% of all licensed attorneys in the US in 2000, 88.3% of the disciplined attorneys were male and 11.7% were female. 

April 3, 2015 in Current Affairs | Permalink | Comments (0)

Friday, March 13, 2015

Would the Alabama Supreme Court prefer no marriage at all?

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]



March 13, 2015 in Class Actions, Current Affairs, Federal Courts, Recent Decisions, State Courts | Permalink | Comments (0)

Wednesday, March 11, 2015

New developments in the Alabama same-sex marriage litigation

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.] 

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March 11, 2015 in Class Actions, Current Affairs, Federal Courts, Federal Rules of Civil Procedure, In the News, Recent Decisions, State Courts, Supreme Court Cases | Permalink | Comments (0)

Tuesday, March 3, 2015

Alabama Supreme Court Issues Writ of Mandamus, Enjoins Probate Judges from Issuing Marriage Licenses to Same-Sex Couples

This evening the Alabama Supreme Court granted the petition for a writ of mandamus that had been filed earlier this month by two groups opposing same-sex marriage, purporting to be “relators” for the State of Alabama. Here is the 134-page per curiam opinion, which concludes with an order enjoining Alabama probate judges from issuing marriage licenses to same-sex couples.

Here is the full text of the order:

The named respondents are ordered to discontinue the issuance of marriage licenses to same-sex couples. Further, and pursuant to relator Judge Enslen's request that this Court, "by any and all lawful means available to it," ensure compliance with Alabama law with respect to the issuance of marriage licenses, each of the probate judges in this State other than the named respondents and Judge Davis are joined as respondents in the place of the "Judge Does" identified in the petition. Within five business days following the issuance of this order, each such probate judge may file an answer responding to the relator's petition for the writ of mandamus and showing cause, if any, why said probate judge should not be bound hereby. Subject to further order of this Court upon receipt and consideration of any such answer, each such probate judge is temporarily enjoined from issuing any marriage license contrary to Alabama law as explained in this opinion. As to Judge Davis's request to be dismissed on the ground that he is subject to a potentially conflicting federal court order, he is directed to advise this Court, by letter brief, no later than 5:00 p.m. on Thursday, March 5, 2015, 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.

The last sentence, of course, refers to the federal injunction issued by Judge Callie Granade against Mobile County probate judge Don Davis last month. 




March 3, 2015 in Current Affairs, Federal Courts, In the News, Recent Decisions, Standing, State Courts | Permalink | Comments (0)

Monday, March 2, 2015

The Dress, Justice Holmes & Erie

What’s the half-life for internet-breaking social media sensations these days? It seems to get shorter and shorter, so I figured I should address #TheDress sooner rather than later. Is it White & Gold, or Blue & Black? For all the snarkmemes, and celebrity tweets the dress has inspired, a crucial piece of historical context has been overlooked.

Ninety years ago, there was a kerfuffle in Bowling Green, Kentucky that bears striking similarities to the one that now threatens the marital harmony of Kim & Kanye. Back then, the dispute was between Black & White taxis and Brown & Yellow taxis. A federal lawsuit was filed that made its way all the way to the U.S. Supreme Court, where it prompted a strong dissent from Justice Holmes. Holmes attacked the majority for reading the 1842 decision in Swift v. Tyson to allow the federal court to disregard Kentucky law on the enforceability of a contract giving Brown & Yellow the exclusive ability to solicit customers at the Bowling Green train station.

To Holmes, the majority improperly accepted the “fallacy” that parties in federal court “are entitled to an independent judgment on matters of general law.” The Swift opinion itself—Holmes contended—was written by Justice Story “under the tacit domination” of this fallacy. Holmes explained: 

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March 2, 2015 in Current Affairs, Federal Courts, Supreme Court Cases | Permalink | Comments (0)

Saturday, February 28, 2015

House Committee Hearing on CAFA Dominated by US Chamber of Commerce

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.






February 28, 2015 in Class Actions, Current Affairs, Federal Rules of Civil Procedure, Mass Torts | Permalink | Comments (0)

Tuesday, February 24, 2015

A New Federal Lawsuit, Plus Other Developments in the Alabama Marriage Litigation

A new lawsuit was filed in federal court today by Cari Searcy, the plaintiff whose earlier case led to the initial ruling by Judge Callie Granade declaring Alabama’s same-sex marriage ban unconstitutional. Searcy and Kimberly McKeand were legally married in California, but Searcy’s petition to adopt McKeand’s biological son was denied because of Alabama’s prohibition on recognizing same-sex marriages.

The complaint filed today alleges that Mobile probate judge Don Davis—who is already subject to an injunction issued by Judge Granade in the Strawser case—has still refused to grant Searcy an “unqualified adoption.” Instead the order granting custody to Searcy (Exhibit C to the complaint) states that it is “qualified in nature, and the Court will not issue a final adoption order until a final ruling is issued in the United States Supreme Court on the Marriage Act cases before it.” Searcy seeks an injunction ordering Davis to grant the adoption sought and to strike the “qualified” order. According to the docket sheet, this new case—Searcy v. Davis—has been assigned to Judge Granade as well.

Meanwhile, the Alabama Supreme Court is still considering the Emergency Petition for a Writ of Mandamus that was filed earlier this month by two groups opposing same-sex marriage, ostensibly as “relators” for the State of Alabama. The petition seeks an order compelling probate judges in Alabama not to issue marriage licenses to same-sex couples or to recognize any marriage licenses issued to same-sex couples. Last week, Judge Granade had denied requests—both by the Strawser plaintiffs and by the Jefferson County probate judge who had sought to intervene in the federal litigation—to compel Alabama Attorney General Luther Strange to appear in the Alabama Supreme Court mandamus proceeding and cause its dismissal. So the ball is now squarely in the Alabama Supreme Court’s court. Briefing was complete as of last Friday (2/20), with a number of  Alabama probate judges filing responses opposing the mandamus petition (e.g., this response by the probate judges in Jefferson County and Madison County).



February 24, 2015 in Current Affairs, Federal Courts, In the News, Recent Decisions, State Courts | Permalink | Comments (0)

Tuesday, February 17, 2015

More Federal Court Filings in the Alabama Same-Sex Marriage Litigation

Lots of filing activity today in Strawser, one of the federal cases pending before Judge Granade on the constitutionality of Alabama’s same-sex marriage ban. As we covered earlier, the Alabama Supreme Court recently ordered briefing on an Emergency Petition for a Writ of Mandamus filed by two groups opposing same-sex marriage, ostensibly as “relators” for the State of Alabama. This prompted the Jefferson County probate judge (who had been granting licenses to same-sex couples) to seek to intervene in the federal litigation.

Kent Faulk has this report on today’s filings, but here’s a summary:

You can find copies of all the important filings, rulings, and other documents here.



February 17, 2015 in Current Affairs, Federal Courts, In the News, State Courts | Permalink | Comments (0)