Wednesday, January 20, 2016

Today’s SCOTUS Decision in Campbell-Ewald v. Gomez

The Supreme Court issued its decision today in Campbell-Ewald Co. v. Gomez, a closely watched case on class actions, Article III, and mootness (covered earlier here and here). Justice Ginsburg’s majority opinion begins:

Is an unaccepted offer to satisfy the named plaintiff ’s individual claim sufficient to render a case moot when the complaint seeks relief on behalf of the plaintiff and a class of persons similarly situated? This question, on which Courts of Appeals have divided, was reserved in Genesis HealthCare Corp. v. Symczyk, 569 U. S. ___, ___, ___, n. 4 (2013) (slip op., at 5, 6, n. 4). We hold today, in accord with Rule 68 of the Federal Rules of Civil Procedure, that an unaccepted settlement offer has no force. Like other unaccepted contract offers, it creates no lasting right or obligation. With the offer off the table, and the defendant’s continuing denial of liability, adversity between the parties persists.

Justice Ginsburg’s opinion is joined by Justices Kennedy, Breyer, Sotomayor, and Kagan. Justice Thomas adds a sixth vote, but writes a separate concurring opinion. Chief Justice Roberts writes a dissenting opinion, joined by Justices Scalia and Alito, and Justice Alito writes a dissenting opinion as well.




January 20, 2016 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Friday, January 15, 2016

SCOTUS Cert Grant in Microsoft v. Baker: Appellate Review of Orders Denying Class Certification

Today the Supreme Court granted certiorari in Microsoft Corp. v. Baker, limited to the following Court-generated question:

Whether a federal court of appeals has jurisdiction under both Article III and 28 U.S.C. § 1291 to review an order denying class certification after the named plaintiffs voluntarily dismiss their individual claims with prejudice.

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.



January 15, 2016 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Saturday, January 2, 2016

Chief Justice’s Year-End Report Praises Rules Amendments Sought by Corporate Defendants

          Last year, I complained that the Chief Justice’s Year-End Report for the federal judiciary was irrelevant to real-world concerns.  This year, I cannot complain about Year-End Report's relevance; it focuses mainly on the recently-effective amendments to the Federal Rules of Civil Procedure.  But I can complain, a lot, about the Report’s lack of candor.       

          As been his custom for these year-end reports, the Chief Justice opens with a dull, lengthy historical reference.  Last year it was the Supreme Court's 1935 installation of a pneumatic tube system; this year it’s a dueling book.  The Chief Justice talks about a 22-page booklet published in 1838 setting forth detailed rules on dueling.  The dueling rules, he says, were supposed to “ensure that duels would be conducted fairly—including provisions for resolving disputes through apology and compromise—[and thus] would in fact save lives.”  But alas, the code “had exactly the opposite effect, glorifying and institutionalizing a barbarous practice that led to wanton death.”  Three decades later, “[p]ublic opinion ultimately turned against dueling as a means of settling quarrels.”

          Somehow, this is supposed to relate to the recent amendments to the federal rules.  The implication seems to be that civil discovery today is like dueling, and the new amendments will civilize the barbarism.

          The dueling analogy isn’t clear to me.  If an elaboration of dueling rules led to increased killing, then the elaboration of the federal discovery rules will lead to . . . what?  More lawsuits being killed?  And if “public opinion” ultimately turned against duels, does that mean public opinion should turn even further against plaintiffs who bring civil lawsuits? 

          Setting aside the baffling dueling rulebook analogy, the Report continues with a paean to the process by which the rules are amended.  Federal procedural rules such as the recent amendments, enthuses the Chief Justice, “are developed through meticulous consideration, with input from all facets of the legal community, including judges, lawyers, law professors, and the public at large.”  But the “primary work” of rules amendments, he explains, is done through the Advisory Committee and the Standing Committee.

          The Chief Justice’s characterization of the rules amendment process is meant to imply that the process ensures a national consensus and an impartial solution that will affect all litigants equally.  But these suggested implications are false.

          Here’s the dirty underside of the rules amendment process.  What the Chief Justice doesn’t mention is that he has the sole, unfettered power to appoint the members of the Advisory Committee, the Standing Committee, and the members of all the other federal rules committees.  And he has exercised this power to appoint committee members who are predisposed to favor restrictions on discovery.  For example, at the time these rules amendments were adopted, seven of the eight federal judges on the Standing Committee were appointed by George W. Bush.  As for the Civil Rules Advisory Committee, I wrote recently, “thirteen of the fifteen members of the Advisory Committee had at least one of the following characteristics: they were appointed by a Republican president, clerked for a Republican-appointed Supreme Court justice, work or worked for a defense-oriented, large corporate law firm, and/or are affiliated with the Federalist Society or Lawyers for Civil Justice.”

Continue reading

January 2, 2016 in Discovery, Federal Courts, Federal Rules of Civil Procedure, In the News | Permalink | Comments (2)

Tuesday, December 29, 2015

Ten New Articles on Personal Jurisdiction

Lewis & Clark Law Review has just published a symposium on personal jurisdiction that contains ten articles and essays;


Philip Thoennes

19 Lewis & Clark L. Rev. 593 (2015)



John T. Parry

19 Lewis & Clark L. Rev. 607 (2015)


Cassandra Burke Robertson and Charles W. “Rocky” Rhodes

19 Lewis & Clark L. Rev. 643 (2015)


Linda J. Silberman

19 Lewis & Clark L. Rev. 675 (2015)


Verity Winship

19 Lewis & Clark L. Rev. 693 (2015)


Daniel Klerman

19 Lewis & Clark L. Rev. 713 (2015)


Stanley E. Cox

19 Lewis & Clark L. Rev. 725 (2015)


Julie Cromer Young

19 Lewis & Clark L. Rev. 753 (2015)


Allan Erbsen

19 Lewis & Clark L. Rev. 769 (2015)




Ruth Miller

19 Lewis & Clark L. Rev. 791 (2015)


Joan M. Shaughnessy

19 Lewis & Clark L. Rev. 811 (2015)


Hat tip: John Parry

December 29, 2015 in Conferences/Symposia, Federal Courts | Permalink | Comments (1)

Monday, December 14, 2015

Recent Scholarship: Patent Litigation; Supreme Court Justice Loyalty; “Litigation Trolls”

Three new articles recently posted on SSRN:

1. Christopher Beauchamp (Brooklyn Law School) has posted The First Patent Litigation Explosion, forthcoming in Yale Law Journal.


The twenty-first century “patent litigation explosion” is not unprecedented. In fact, the nineteenth century saw an even bigger surge of patent cases. During that era, the most prolific patent enforcers brought hundreds or even thousands of suits, dwarfing the efforts of today’s leading “trolls.” In 1850, New York City and Philadelphia alone had ten times more patent litigation, per U.S. patent in force, than the entire United States in 2013. Even the absolute quantity of late-nineteenth-century patent cases bears comparison to the numbers filed in recent years: the Southern District of New York in 1880 would have ranked third on the list of districts with the most patent infringement suits filed in 2014 and would have headed the list as recently as 2010.

This Article reveals the forgotten history of the first patent litigation explosion. It first describes the rise of large-scale patent enforcement in the middle of the nineteenth century. It then draws on new data from the archives of two leading federal courts to trace the development of patent litigation from 1840 to 1910 and to outline the scale, composition, and leading causes of the litigation boom. Finally, the Article explores the consequences of this phenomenon for the law and politics of the patent system. The effects of the litigation explosion were profound. The rise of large-scale patent assertion provides a new explanation for patent law’s crucial shift from common law to equity decision making in the middle of the nineteenth century. And at its height, the litigation explosion produced a political backlash that threatened to sweep away the patent system as we know it. Recovering the history of patent law during this formative and turbulent era offers fresh perspectives on the patent reform debates of today.

2. Lee Epstein (Washington University in St. Louis School of Law) and Eric A. Posner (University of Chicago Law School) have posted Supreme Court Justices' Loyalty to the President.


A statistical analysis of voting by Supreme Court justices from 1937-2014 provides evidence of a “loyalty effect”—justices more frequently vote for the government when the president who appointed them is in office than when subsequent presidents lead the government. This effect exists even when subsequent presidents are of the same party as the justices in question. However, the loyalty effect is much stronger for Democratic justices than for Republican justices. This may be because Republican presidents are more ideologically committed than Democratic justices are, leaving less room for demonstrations of loyalty.


3. Bradley Wendel (Cornell University School of Law) has posted Litigation Trolls (NYU Law School Center on Civil Justice Symposium on "Litigation Funding: The Basics and Beyond").


Third-party financing of litigation has been described with a variety of unflattering metaphors. Litigation financers have been likened to gamblers in the courtroom casino, loan sharks, vultures, Wild West outlaws, and busybodies mucking about in the private affairs of others. Now Judge Richard Posner has referred to third-party financers as litigation trolls, an undeniably unflattering comparison to patent trolls. But what it is, if anything, that makes third-party financers “trolls”? Legal claims are, for the most part, freely assignable, the proceeds of claims are assignable, and various strangers to the underlying lawsuit, including liability insurers and plaintiffs’ contingency-fee counsel, are permitted to have an economic interest in the outcome of the litigation. On one view, therefore, third-party litigation investment is just another innovative financial product that enables risk to be carved up and allocated more efficiently. Life insurance, attorney contingent fees, and derivative contracts on exchange-traded commodities were all formerly regarded with extreme suspicion, but are now widely accepted. But people still hate patent trolls. So whether litigation funding is some kind of conceptual anomaly is an important question because, as it happens, Posner’s dictum coincides with a public-relations campaign by the U.S. Chamber of Commerce to stigmatize third-party litigation financing and saddle the industry with new and burdensome regulations. This short paper evaluates the conceptual critique of litigation financing by comparison with two other areas in which it is claimed that some form of financing “just doesn’t sit right” in light of the nature and function of the legal system – patent trolling and contributions to judicial election campaigns.

December 14, 2015 in Federal Courts, Recent Scholarship, Supreme Court Cases | Permalink | Comments (0)

Tuesday, December 1, 2015

Today's SCOTUS Decision on the Foreign Sovereign Immunities Act

Today the Supreme Court issued its first opinion in an argued case this Term: OBB Personenverkehr AG v. Sachs. In an opinion by Chief Justice Roberts, the Court unanimously held that a lawsuit against the Austrian state-owned railway was barred by Foreign Sovereign Immunities Act. From the opinion:

Respondent Carol Sachs is a resident of California who purchased in the United States a Eurail pass for rail travel in Europe. She suffered traumatic personal injuries when she fell onto the tracks at the Innsbruck, Austria, train station while attempting to board a train operated by the Austrian state-owned railway. She sued the railway in Federal District Court, arguing that her suit was not barred by sovereign immunity because it is “based upon” the railway’s sale of the pass to her in the United States. We disagree and conclude that her action is instead “based upon” the railway’s conduct in Innsbruck. We therefore hold that her suit falls outside the commercial activity exception and is barred by sovereign immunity. 

Our earlier coverage is here.



December 1, 2015 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

December 1, 2015: FRCP Amendments Now In Effect

The recent batch of amendments to the Federal Rules of Civil Procedure, which the Supreme Court adopted in April, are in effect as of today. Some of our earlier coverage is here and here.


December 1, 2015 in Discovery, Federal Courts, Federal Rules of Civil Procedure | Permalink | Comments (0)

Friday, November 20, 2015

Supreme Court Mapping Project: The Collateral Order Doctrine

Over at his In Progress blog, Colin Starger has mapped out everyone’s favorite judicially-crafted exception the final judgment rule, showing “19 of the Supreme Court’s collateral order cases using a modified Spaeth Projection.” 




November 20, 2015 in Federal Courts, Supreme Court Cases, Weblogs | 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)

Monday, November 2, 2015

Today’s SCOTUS Oral Argument in Spokeo, Inc. v. Robins

The Supreme Court hears oral argument today in Spokeo, Inc. v. Robins, which presents the question:

Whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.

For our earlier coverage, see here, here, and here. You should also check out Amy Howe’s preview of the argument for SCOTUSblog and the Vanderbilt Law Review’s En Banc Roundtable on the case, available here.

UPDATE: The transcript of the oral argument has now been posted.


November 2, 2015 in Federal Courts, Recent Decisions, Recent Scholarship, Standing, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Friday, October 30, 2015

Note on FRCP 60(b)(5) and Institutional Reform Litigation

In the latest issue of the Yale Law Journal is a note by Mark Kelley, Saving 60(b)(5): The Future of Institutional Reform Litigation. Here’s the abstract: 

Institutional reform decrees are one of the chief means by which federal courts cure illegal state and federal institutional practices, such as school segregation, constitutionally inadequate conditions in prisons and mental hospitals, and even insufficient dental services under Medicaid. The legal standards governing federal courts’ power to modify or dissolve institutional reform decrees, a crucial tool that can be used to safeguard or sabotage these decrees’ continued vitality, are rooted in Federal Rule of Civil Procedure 60(b)(5). In Horne v. Flores, the Supreme Court tweaked Rule 60(b)(5) to make it easier for state and local institutions to modify or dissolve the institutional reform decrees to which they are bound. This Note argues that Horne has introduced considerable confusion and divergence among lower court approaches to the modification and dissolution of reform decrees, and has made it too easy for institutional defendants to escape federal oversight. At the same time, however, Horne rested on legitimate policy critiques of institutional reform litigation. This Note attempts to chart a middle ground between the doctrine’s detractors and defenders by making concrete proposals about how courts should resolve the confusion introduced by Horne. These recommendations would align the institutional reform doctrine with the policy critiques highlighted by the Court in Horne while still allowing for the effective vindication of constitutional rights.





October 30, 2015 in Federal Courts, Federal Rules of Civil Procedure, Recent Scholarship | Permalink | Comments (0)

Thursday, October 22, 2015

Dodson & Pucillo on Diversity Jurisdiction

Scott Dodson and Philip Pucillo have posted on SSRN a draft of their recent article, Joint and Several Jurisdiction, which will be published in the Duke Law Journal. Here’s the abstract:

Is federal diversity jurisdiction case-specific or claim-specific? Consider a state-law case in federal court between a Texas plaintiff and two defendants — one from California and the other from Texas. The complete-diversity rule taught to every first-year law student makes clear that, when the diversity defect is noted, the court lacks subject-matter jurisdiction over the action as a whole. The court cannot, therefore, proceed with either claim as long as the nondiverse claim remains. But does the court’s subject-matter jurisdiction nevertheless extend to the diverse claim, such that the case can continue if the spoiler is dismissed? This question is both pervasive and unsettled. We identify and explore two possible answers, each based on a different theory of subject-matter jurisdiction. The first we denote “joint jurisdiction ”— an all-or-nothing theory — under which the presence of a nondiverse claim contaminates the whole case and deprives the court of diversity jurisdiction over diverse claims. The second we denote “several jurisdiction” — a claim-by-claim theory — under which the court lacks subject-matter jurisdiction over the nondiverse claim but always had, and continues to have, diversity jurisdiction over the diverse claim. We show that each theory boasts jurisprudential support, leaving the doctrine ambivalent on a question that affects thousands of cases filed in federal court each year. We then offer a way to reconcile these seemingly incompatible theories and precedent: manipulation of the nonjurisdictional time-of-filing rule. Finally, we discuss how that solution potentially creates new tensions, particularly regarding the notion that a court without subject-matter jurisdiction over an action may nonetheless render a binding adjudication of claims within that action.


October 22, 2015 in Federal Courts, Recent Scholarship, Subject Matter Jurisdiction | 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)

Thursday, October 1, 2015

Happy October! SCOTUS Cert Grants of Interest (Bank Markazi; Americold; MHN)

Today the Supreme Court issued its much-anticipated order list from the end-of-summer “long conference.” It granted certiorari in a few cases that folks interested in civil procedure and federal courts will want to keep an eye on:

Bank Markazi v. Peterson (No. 14-770), from the Second Circuit, is a separation-of-powers challenge to a congressional statute involving the execution of a judgment against bonds held by the Central Bank of Iran. Here is the question presented by the petitioner:

This case concerns nearly $2 billion of bonds in which Bank Markazi, the Central Bank of Iran, held an interest in Europe as part of its foreign currency reserves. Plaintiffs, who hold default judgments against Iran, tried to seize the assets. While the case was pending, Congress enacted § 502 of the Iran Threat Reduction and Syria Human Rights Act of 2012, 22 U.S.C. § 8772. By its terms, that statute applies only to this one case: to “the financial assets that are identified in and the subject of proceedings in the United States District Court for the Southern District of New York in Peterson et al. v. Islamic Republic of Iran et al., Case No. 10 Civ. 4518 (BSJ) (GWG).” Id. § 8772(b). “In order to ensure that Iran is held accountable for paying the judgments,” it provides that, notwithstanding any other state or federal law, the assets “shall be subject to execution” upon only two findings—essentially, that Bank Markazi has a beneficial interest in them and that no one else does. Id. § 8772(a)(1), (2). The question presented is:

Whether § 8772—a statute that effectively directs a particular result in a single pending case—violates the separation of powers.

Americold Logistics, LLC v. ConAgra Foods, Inc. (No. 14-1382), from the Tenth Circuit, involves how to determine the citizenship of a trust for purposes of diversity jurisdiction:

Petitioners Americold Logistics, LLC and Americold Realty Trust – a corporation and real estate investment trust, respectively – removed a case from Kansas state court to the United States District Court for the District of Kansas, asserting the parties were diverse. No party challenged the removal, and the District Court ruled on the merits of that litigation without addressing any issue relating to diversity jurisdiction. Likewise, neither party raised any jurisdictional challenge on appeal to the Tenth Circuit Court of Appeals.

The Tenth Circuit, however, sua sponte queried whether there was full diversity of citizenship among the parties. In particular, the judges challenged whether the citizenship of Americold Realty Trust, a business trust, should be determined by reference to its trustees’ citizenship, or instead by reference to some broader set of factors. This issue has deeply split courts across the country. Joining the minority of courts, the Tenth Circuit held the jurisdictional inquiry extends, at a minimum, to the citizenship of a trust’s beneficiaries in addition to its trustees’ citizenship. In this case, doing so destroyed diversity of citizenship among the parties.

The question presented by this petition is: Whether the Tenth Circuit wrongly deepened a pervasive circuit split among the federal circuits regarding whether the citizenship of a trust for purposes of diversity jurisdiction is based on the citizenship of the controlling trustees, the trust beneficiaries, or some combination of both.

MHN Government Services, Inc. v. Zaborowski (No. 14-1458), from the Ninth Circuit, is another case involving the relationship between the Federal Arbitration Act and state contract law. Here is the question presented by the petitioners:

The Federal Arbitration Act (“FAA”) provides that an arbitration agreement shall be enforced “save upon such grounds as exist at law or in equity for the revocation of any contract,” 9 U.S.C. § 2. California law applies one rule of contract severability to contracts in general, and a separate rule of contract severability to agreements to arbitrate. The arbitration-only rule disfavors arbitration and applies even when the agreement contains an express severability clause. Its application in this case conflicts with binding precedent of this Court and with opinions of four other courts of appeals.

The question presented is whether California’s arbitration-only severability rule is preempted by the FAA.  

You can find coverage of today’s cert. grants from SCOTUSblog’s Lyle Denniston here.


October 1, 2015 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

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.

Continue reading

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

Friday, September 18, 2015

Judicial Conference Issues Strategic Plan for Federal Judiciary

The Judicial Conference approved a new Strategic Plan for the Federal Judiciary on September 17, 2015.  If you’ve ever participated in drafting a strategic plan for your law school or other organization, you know the familiar jargon: mission statement, core values, issues, strategies, and goals.  They even had an “Ad Hoc Strategic Planning Group.”  (Federal judges – they’re just like us!)


As a person who has often been involved in strategic planning, I found it a bit disconcerting to see the Judicial Conference adopting the familiar buzzwords.  (I wonder if they had the perennial “what is the darn difference between a strategy and a goal” discussion.)


So here’s the Mission Statement of the federal judiciary:

The United States Courts are an independent, national judiciary providing fair and impartial justice within the jurisdiction conferred by the Constitution and Congress. As an equal branch of government, the federal judiciary preserves and enhances its core values as the courts meet changing national and local needs.   


The core values:

Rule of Law: legal predictability, continuity, and coherence; reasoned decisions made through publicly visible processes and based faithfully on the law

Equal Justice: fairness and impartiality in the administration of justice; accessibility of court processes; treatment of all with dignity and respect

Judicial Independence: the ability to render justice without fear that decisions may threaten tenure, compensation, or security; sufficient structural autonomy for the judiciary as an equal branch of government in matters of internal governance and management

Accountability: stringent standards of conduct; self-enforcement of legal and ethical rules; good stewardship of public funds and property; effective and efficient use of resources

Excellence: adherence to the highest jurisprudential and administrative standards; effective recruitment, development and retention of highly competent and diverse judges and staff; commitment to innovative management and administration; availability of sufficient financial and other resources

Service: commitment to the faithful discharge of official duties; allegiance to the Constitution and laws of the United States; dedication to meeting the needs of jurors, court users, and the public in a timely and effective manner


Then there are “seven issues--fundamental policy questions or challenges that are based on an assessment of key trends affecting the judiciary’s mission and core values”:

Issue 1: Providing Justice

Issue 2: The Effective and Efficient Management of Public Resources

Issue 3: The Judiciary Workforce of the Future

Issue 4: Harnessing Technology’s Potential

Issue 5: Enhancing Access to the Judicial Process

Issue 6: The Judiciary’s Relationships with the Other Branches of Government

Issue 7: Enhancing Public Understanding, Trust, and Confidence


Within each issue are strategies (such as “Strategy 1.1. Pursue improvements in the delivery of justice on a nationwide basis”) and goals (such as “Goal 1.1a: Reduce delay through the work of circuit judicial councils, chief judges, Judicial Conference committees and other appropriate entities”).


I did not find (on quick perusal) any specific mention of the Supreme Court or of cameras in the courtroom, despite “Strategy 7.2: Improve the sharing and delivery of information about the judiciary.” 


September 18, 2015 in Federal Courts | Permalink | Comments (0)

Monday, August 24, 2015

Conference: Magistrate Judges and the Transformation of the Federal Judiciary (Las Vegas, 9/25-9/26)

Here is the announcement:

The UNLV School of Law and the Duke School of Law are hosting a conference Magistrate Judges and the Transformation of the Federal Judiciary on September 25-26 in Las Vegas, NV. This conference may be the first effort to explore the critically important institution of magistrate judges from interdisciplinary, empirical, theoretical, and practical perspectives. This conference features political scientists, legal academics, statisticians, magistrate judges, district court judges, appellate court judges, and officers from the Administrative Office of U.S. Courts. Although the federal administration of justice is the subject of much academic study, the vital system of magistrate judges is often overlooked. Unlike many traditional academic conferences, this conference prioritizes participation by judges: multiple judges are featured on every panel, and every panel will elicit audience (especially judicial) participation in the form of comments and questions.

Academic participants include Christina Boyd (Georgia—Political Science), Tracey George (Vanderbilt), Mitu Gulati (Duke), Nancy King (Vanderbilt), Jack Knight (Duke), David Levi (Duke), Nancy Welsh,(Penn St) and Albert Yoon (Toronto). From UNLV, Dan Hamilton, Ann McGinley, Jeff Stempel and Jean Sternlight are participating. Federal judges who are panelists include Robert Collings (MA), Valerie Cooke (NV), Candy Dale (ID), Cam Ferenbach (NV), Michael Newman (OH), James O’Hara (KS), Philip Pro (NV), Johnnie Rawlinson (NV), and Neil Wake (AZ). Doug Lee and Tom Davis from the Administrative Office of U.S. Courts are also presenting a paper.

The conference begins at noon on Friday, September 25 and ends at noon the following day. Registration information is available here. For additional information you may also contact Thomas Main,


August 24, 2015 in Conferences/Symposia, Federal Courts | Permalink | Comments (0)

Saturday, August 15, 2015

Seventh Circuit Vacates Remittitur, Reinstates $3.4 Million Jury Verdict in Police Brutality Case

Two brothers, Seneca and Tari Adams, “endured vicious beatings by Chicago police officers and prolonged detentions in the Cook County Jail” in 2004.  The City of Chicago admitted liability for false arrest, excessive force, race discrimination, and malicious prosecution. 

The case was tried to a jury on the question of damages.  The jury verdict awarded $2.4 million to Seneca (who was savagely beaten and detained in Cook County Jail for 204 days) and $1 million to Tari (who was also beaten and detained in Cook County Jail for 45 days).  The district court “remitted” those amounts to $1.17 million for Seneca and $350,000 for Tari.  The district court failed, however, to give them the option of a new trial instead of accepting the remittitur.

The Seventh Circuit (in an opinion by Judge Diane Wood, with Judges Ilana Rovner and Theresa Springmann on the panel) held that simply remitting the damages award without offering plaintiffs the option of a new trial was error.  Rather than remand back to the district court to allow plaintiffs that choice, however, the Court proceeded to consider whether the district court had abused its discretion in ordering the remittitur in the first place, and held that it had. 

Reviewing the outrageous facts, and comparing similar excessive force cases, the Court held that the jury’s verdict was “well within the universe of excessive force and malicious prosecution verdicts.”  The case was remanded so that the jury’s verdict could be reinstated.

(In passing, the Court mentioned Professor Suja Thomas’ article, Re-Examining the Constitutionality of Remittitur Under the Seventh Amendment, 64 Ohio St. L.J. 731 (2003).  The Court did not reach the argument that remittitur was unconstitutional, but ventured “that it would be bold indeed for a court of appeals to come to such a conclusion, given what the Supreme Court has said on the topic.”)   

The case is Adams v. City of Chicago.

August 15, 2015 in Federal Courts, Recent Decisions | Permalink | Comments (0)

Tuesday, August 11, 2015

Coleman on "The Efficiency Norm" in Civil Litigation

Brooke Coleman, Seattle University School of Law, has posted on SSRN her recent paper, "The Efficiency Norm," forthcoming in Boston College Law Review.


Efficient is not synonymous with inexpensive. Rather, it refers to an optimal tradeoff between cost and function; a system may simultaneously become both less expensive and less efficient, if the cost savings are offset by an even greater loss of productivity. Yet, this Article argues that if we conceive of the rules and doctrines governing civil procedure as a product, the Judiciary, Congress, and federal civil rulemakers have confused cheap with efficient. They have made this version of “efficiency” — what this Article calls the efficiency norm — the dominant norm of the civil litigation system. This Article argues that the efficiency norm is problematic because institutional actors falsely equate efficiency with the idea that litigation must simply become cheaper. This has led them to profoundly shift key presumptions underlying civil litigation in two critical ways: the shift from a merits-based trial to non-trial adjudication and the shift from plaintiff receptivity to plaintiff skepticism. The Article argues that under a real efficiency analysis — one that weighs both the benefits and costs of making litigation cheaper — these now-dominant civil litigation presumptions are dangerous and unwarranted because, among other things, they further de-democratize civil litigation. Finally, the Article argues that the efficiency norm must be reclaimed. It proposes a reframed definition of efficiency and argues that such a definition will enable a better assessment and recalibration of the civil litigation system.

August 11, 2015 in Federal Courts, Recent Scholarship | Permalink | Comments (0)