Wednesday, September 19, 2018
Zach Clopton has published Procedural Retrenchment and the States, 106 Cal. L. Rev. 411 (2018). Here’s the abstract:
Although not always headline grabbing, the Roberts Court has been highly interested in civil procedure. According to critics, the Court has undercut access to justice and private enforcement through its decisions on pleading, class actions, summary judgment, arbitration, standing, personal jurisdiction, and international law.
While I have much sympathy for the Court’s critics, the current discourse too often ignores the states. Rather than bemoaning the Roberts Court’s decisions to limit court access—and despairing further developments in the age of Trump—we instead might productively focus on the options open to state courts and public enforcement. Many of the aforementioned decisions are not binding on state courts, and many states have declined to follow their reasoning. This Article documents state courts deviating from Twombly and Iqbal on pleading; the Celotex trilogy on summary judgment; Wal-Mart v. Dukes on class actions; and Supreme Court decisions on standing and international law. Similarly, many of the Court’s highly criticized procedural decisions do not apply to public enforcement, and many public suits have proceeded where private litigation would have failed. This Article documents successful state-enforcement actions when class actions could not be certified, when individual claims would be sent to arbitration, and when private plaintiffs would lack Article III standing.
In sum, this Article evaluates state court and state-enforcement responses to the Roberts Court’s procedural decisions, and it suggests further interventions by state courts and public enforcers that could offset the regression in federal court access. At the same time, this analysis also illuminates serious challenges for those efforts, and it offers reasons to be cautious about state procedure and enforcement. Leveling down to state actors may not completely escape the political forces that have shaped federal procedure, and it may exacerbate some of the political economies that have undermined private enforcement and private rights to date.
Monday, August 27, 2018
Andrew Hammond has posted on SSRN a draft of his article, Pleading Poverty in Federal Court, which is forthcoming in the Yale Law Journal. Here’s the abstract:
What must a poor person plead to gain access to the federal courts? How do courts decide when a poor litigant is poor enough? This Article answers those questions with the first comprehensive study of how district courts determine when a litigant may proceed in forma pauperis in a civil lawsuit. This Article shows that district courts lack standards to determine a litigant’s poverty and often require litigants to answer an array of questions to little effect. As a result, discrepancies in federal practice abound—across and within district courts—and produce a pleading system that is irrational, inefficient, and invasive. This Article makes four contributions. First, it codes all the poverty pleadings currently used by the 94 federal district courts. Second, the Article shows that the flaws of these pleading procedures are neither inevitable nor characteristic of poverty determinations. By comparing federal practice to other federal means tests and state court practices, the Article demonstrates that a more streamlined, yet rights-respecting approach is possible. Third, the Article proposes a coherent in forma pauperis standard—one that would align federal practice with federal law, promote reasoned judicial administration, and protect the dignity of litigants. Such a solution proves that judges need not choose between extending access to justice and preserving court resources. In this instance and perhaps others, judges can serve both commitments of the federal system. Fourth, the Article illustrates how to study procedure from the bottom up. Given the persistent and widening levels of inequality in American society, no account of civil procedure is complete without an understanding of how poor people litigate today.
Thursday, August 16, 2018
This week the Judicial Conference Committee on Rules of Practice and Procedure (aka the Standing Committee) approved the publication of a proposed amendment to Federal Rule of Civil Procedure 30(b)(6). The amendment would impose a requirement to “confer in good faith about the number and description of the matters for examination and the identity of each person the organization will designate to testify.”
You can find the proposed FRCP 30(b)(6) amendment – along with proposed amendments to the Appellate, Bankruptcy, and Evidence Rules – here.
The period to submit written comments on the proposed amendments runs until February 15, 2019.
You can find more information about submitting written comments and presenting testimony at public hearings here.
Friday, August 10, 2018
Today Wikileaks was served via Twitter, pursuant to FRCP 4(f)(3), in Democratic National Committee v. The Russian Federation et al., No. 18-cv-3501 (SDNY).
Here's the tweet effecting service:
Here's the court's order (from earlier this week) authorizing service via Twitter:
Here's the plaintiff's motion:
Friday, July 27, 2018
Earlier this year the Ninth Circuit issued a 2-1 decision in In re Hyundai and Kia Fuel Economy Litigation. The panel reversed the district court’s certification of a settlement class involving claims against Hyundai and Kia over their vehicles’ fuel efficiency. The decision was particularly controversial because of the majority’s choice-of-law analysis and its potential impact on certifying nationwide classes.
Today the full Ninth Circuit granted en banc rehearing.
Oral argument is scheduled for the week of September 24, 2018.
Thursday, July 26, 2018
SDNY rules on motions to dismiss cases challenging addition of a citizenship status question to 2020 census
Today U.S. District Judge Jesse Furman (S.D.N.Y.) issued an opinion and order granting in part and denying in part the defendants’ motion to dismiss two related cases, New York v. United States Department of Commerce and New York Immigration Coalition v. United States Department of Commerce. The plaintiffs in these cases are challenging—on a number of grounds—Commerce Secretary Wilbur Ross’s decision to reinstate a question on citizenship status for the 2020 census. The upshot, as the court summarizes is this:
Plaintiffs’ claims under the Enumeration Clause — which turn on Secretary Ross’s power rather than his purposes — must be and are dismissed. By contrast, their claims under the APA (which Defendants seek to dismiss solely on jurisdictional and justiciability grounds) and the Due Process Clause — which turn at least in part on Secretary Ross’s purposes and not merely on his power — may proceed.
In reaching this conclusion, the opinion covers a number of interesting issues, including Article III standing, the political question doctrine, and whether the plaintiffs plausibly alleged discriminatory animus for purposes of their equal protection claim under the Due Process Clause.
In Lewis v. Governor of Alabama, the Eleventh Circuit reversed the district court’s dismissal of an equal protection challenge to a 2016 Alabama statute that nullified a Birmingham city ordinance raising the minimum wage to $10.10. Here’s the introductory paragraph:
For a single day in February 2016, Marnika Lewis and Antoin Adams secured a pay raise. The Mayor of Birmingham, Alabama, William Bell, had just affixed his signature to Birmingham Ordinance No. 16-28, which guaranteed Lewis, Adams, and all other wage earners in the city $10.10 per hour. But the following afternoon, Alabama Governor Robert Bentley signed the Minimum Wage and Right-to-Work Act (The Minimum Wage Act or the Act) into law. The Minimum Wage Act nullified Birmingham Ordinance No. 16-28, preempted all local labor and employment regulation, and mandated a uniform minimum wage throughout Alabama—which, then and now, sits at $7.25 per hour. At the heart of this appeal is whether Lewis and Adams have stated a plausible claim that the Minimum Wage Act had the purpose and effect of discriminating against Birmingham’s black citizens, in violation of the Equal Protection Clause of the Fourteenth Amendment. Because they have, we reverse the dismissal of that claim. We affirm the dismissal of all other claims.
The opinion addresses standing, sovereign immunity, and pleading standards. As to pleading, the court concludes:
Here, a sensitive but thorough examination of the plaintiffs’ detailed allegations leads us to conclude that they have plausibly alleged a discriminatory motivation behind the Minimum Wage Act, despite the law’s neutrality and rationale. This is all that is required for their claim to survive a motion to dismiss.
Thursday, July 19, 2018
Matthew Shapiro has published Delegating Procedure, 118 Colum. L. Rev. 983 (2018). Here’s the abstract:
The rise of arbitration has been one of the most significant developments in civil justice. Many scholars have criticized arbitration for, among other things, “privatizing” or “delegating” the state’s dispute-resolution powers and allowing private parties to abuse those powers with virtual impunity. An implicit assumption underlying this critique is that civil procedure, in contrast to arbitration, does not delegate significant state power to private parties.
This Article challenges that assumption and argues that we can address many of the concerns about arbitration by drawing on civil procedure’s solutions to its own delegation problem. From summonses to subpoenas to settlements, civil procedure pervasively delegates state power during ordinary civil litigation. With these delegations comes the potential for abuse. But rather than limit private parties’ access to delegated power before any abuse has occurred, civil procedure generally polices its delegations for abuse after the fact. It does so in three main ways: by rescinding delegated power, as in the appointment of discovery masters; by withholding enforcement from an exercise of delegated power, as in civil Batson; and by punishing abuse of delegated power, as in Rule 11 sanctions. Civil procedure’s delegation-policing doctrines allow the state not only to protect private parties from harm but also to avoid becoming complicit in private exercises of delegated power that offend important public values.
Arbitration’s delegations of state power present many of the same problems as civil procedure’s, and scholars have rightly criticized the current arbitration regime for essentially writing a blank check to private parties. But whereas most scholars have focused on restricting access to arbitration’s delegations by deeming broad categories of arbitration clauses unenforceable, this Article suggests adapting civil procedure’s delegation-policing doctrines for arbitration. Even if courts continue to enforce arbitration clauses more often than arbitration’s critics would prefer, they should police arbitration’s delegations more closely than the law now permits.
Wednesday, July 18, 2018
This week the Sixth Circuit decided Martin v. Behr Dayton Thermal Products, affirming the district court’s decision to certify various issues for class treatment under Rule 23(c)(4). The court sided with what it called “the broad view” of the relationship between Rule 23(b)(3)’s requirements and issue class actions under Rule 23(c)(4). From Judge Stranch’s opinion:
Under what is known as the broad view, courts apply the Rule 23(b)(3) predominance and superiority prongs after common issues have been identified for class treatment under Rule 23(c)(4). The broad view permits utilizing Rule 23(c)(4) even where predominance has not been satisfied for the cause of action as a whole.
After reviewing the circuit split over this question, the opinion concludes:
In sum, Rule 23(c)(4) contemplates using issue certification to retain a case’s class character where common questions predominate within certain issues and where class treatment of those issues is the superior method of resolution. See Nassau, 461 F.3d at 226; Fed. R. Civ. P. 23(c)(4) adv. comm. n. to 1966 amend. A requirement that predominance must first be satisfied for the entire cause of action would undercut the purpose of Rule 23(c)(4) and nullify its intended benefits. The broad approach is the proper reading of Rule 23, in light of the goals of that rule.
Tuesday, June 26, 2018
Yesterday’s Supreme Court order list included grants of certiorari in several cases, including these three:
Sudan v. Harrison presents the question:
Whether the Second Circuit erred by holding — in direct conflict with the D.C., Fifth, and Seventh Circuits and in the face of an amicus brief from the United States — that plaintiffs suing a foreign state under the Foreign Sovereign Immunities Act may serve the foreign state under 28 U.S.C § 1608(a)(3) by mail addressed and dispatched to the head of the foreign state’s ministry of foreign affairs “via” or in “care of” the foreign state’s diplomatic mission in the United States, despite U.S. obligations under the Vienna Convention on Diplomatic Relations to preserve mission inviolability.
Nutraceutical Corp. v. Lambert presents the question:
Federal Rule of Civil Procedure 23(f) establishes a fourteen-day deadline to file a petition for permission to appeal an order granting or denying class-action certification. On numerous occasions, this Court left undecided whether mandatory claim-processing rules, like Rule 23(f), are subject to equitable exceptions, because the issue was not raised below. See, e.g., Hamer v. Neighborhood Hous. Serv. of Chicago, 138 S. Ct. 13, 18 n.3, 22 (2017). That obstacle is not present here. The question presented is: did the Ninth Circuit err by holding that equitable exceptions apply to mandatory claim-processing rules and excusing a party’s failure to timely file a petition for permission to appeal, or a motion for reconsideration, within the Rule 23(f) deadline? As the Ninth Circuit acknowledged below, its decision conflicts with other United States Circuit Courts of Appeals that have considered this issue (the Second, Third, Fourth, Fifth, Seventh, Tenth, and Eleventh Circuits).
The question presented is: did the Ninth Circuit err by holding that equitable exceptions apply to mandatory claim-processing rules and excusing a party’s failure to timely file a petition for permission to appeal, or a motion for reconsideration, within the Rule 23(f) deadline?
And Henry Schein, Inc. v. Archer and White Sales, Inc. presents the question:
Whether the Federal Arbitration Act permits a court to decline to enforce an agreement delegating questions of arbitrability to an arbitrator if the court concludes the claim of arbitrability is “wholly groundless.”
June 26, 2018 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, International/Comparative Law, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)
Thursday, June 14, 2018
SCOTUS decision in Animal Science: Deference to a foreign government’s statement about its own domestic law
Today the Supreme Court issued a unanimous decision in Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. (covered earlier here). Justice Ginsburg’s opinion for the Court begins:
When foreign law is relevant to a case instituted in a federal court, and the foreign government whose law is in contention submits an official statement on the meaning and interpretation of its domestic law, may the federal court look beyond that official statement? The Court of Appeals for the Second Circuit answered generally “no,” ruling that federal courts are “bound to defer” to a foreign government’s construction of its own law, whenever that construction is “reasonable.” In re Vitamin C Antitrust Litigation, 837 F. 3d 175, 189 (2016).
We hold otherwise. A federal court should accord respectful consideration to a foreign government’s submission, but is not bound to accord conclusive effect to the foreign government’s statements. Instead, Federal Rule of Civil Procedure 44.1 instructs that, in determining foreign law, “the court may consider any relevant material or source . . . whether or not submitted by a party.” As “[t]he court’s determination must be treated as a ruling on a question of law,” Fed. Rule Civ. Proc. 44.1, the court “may engage in its own research and consider any relevant material thus found,” Advisory Committee’s 1966 Note on Fed. Rule Civ. Proc. 44.1, 28 U. S. C. App., p. 892 (hereinafter Advisory Committee’s Note). Because the Second Circuit ordered dismissal of this case on the ground that the foreign government’s statements could not be gainsaid, we vacate that court’s judgment and remand the case for further consideration.
[In the interest of full disclosure, I joined an amicus brief in this case on behalf of law professors in support of neither party. The brief urged the Supreme Court not to endorse the Second Circuit’s doctrine of abstention based on international comity. It didn’t.]
Friday, June 8, 2018
Dave Marcus has published The History of the Modern Class Action, Part II: Litigation and Legitimacy, 1981-1994, 86 Fordham L. Rev. 1785 (2018). Here’s the abstract:
The first era of the modern class action began in 1966, with revisions to Rule 23 of the Federal Rules of Civil Procedure. It ended in 1980. Significant turmoil roiled these years. Policymakers grappled with the powerful device as advocates argued over its purpose, and judges struggled to create rules for the novel litigation the remade Rule 23 generated.
This Article tells the story of the class action’s second era, which stretched from 1981 to 1994. At first blush, these were quiet years. Doctrine barely changed, and until the early 1990s, policymakers all but ignored the device.
Below this surface tranquility lurked important developments in what the class action, newly embroiled in fundamental debates over litigation and legitimacy, was understood to implicate. Critics castigated the civil rights class action as an emblem of the “imperial judiciary’s” rise and of courts’ inability to separate law from politics. To industries targeted by plaintiffs’ lawyers, the securities fraud class action exemplified the “litigation explosion” and challenged judicial competence to screen for meritorious lawsuits. The emergence of the mass tort class action as an alternative to legislative and administrative processes made a determination of litigation’s legitimate role particularly urgent.
These second-era episodes deepened partisan divides over the class action and prompted new claims about what sort of private litigation could legitimately proceed. The three episodes drew new and influential participants into fights over the class action, and they eventually reengaged policymakers with class action regulation. Such developments made an era of significant reform all but inevitable.
Tuesday, June 5, 2018
Brad Shannon has published Reconciling Subject-Matter Jurisdiction, 46 Hofstra L. Rev. 913 (2018). From the conclusion:
Current subject-matter jurisdiction practice, though well-entrenched, seems upon closer examination to be somewhat indefensible. Changes should be made. Federal Rule of Civil Procedure 8 should be amended to eliminate the pleading of subject-matter jurisdiction. This should help obviate the need to respond to allegations of this nature. Moreover, Rules 12 and 60 should be amended to prevent the assertion of this defense beyond the pleading stage (except in the default judgment context). Such a move would significantly (and appropriately) limit the ability to raise this defense on direct or collateral review. It would, in short, help “secure the just, speedy, and inexpensive determination of every action.” Perhaps more importantly, the practice relating to federal subject-matter jurisdiction would be reconciled with that relating to other “jurisdictional” concepts such as personal jurisdiction and venue, as well as state subject-matter jurisdiction practice, which has avoided many of these problems without incident.
Alas, sound reasoning might not be enough to get the Rules Committee to proceed on some of these matters. Tradition is a powerful thing. Moreover, the fact that the amendments proposed here would, in actuality, have little effect on post-pleading practice, though seemingly a virtue, might actually be a deterrent. Hopefully it will be enough that these amendments would promote simplicity, uniformity, predictability, and avoid unnecessary waste. Exceptions might be unavoidable regardless of which way one goes on these issues, and cases probably will continue to be decided suboptimally. The questions for now relate to baseline presumptions and how best to minimize errors and increase the efficiency of the federal courts.
Thursday, May 31, 2018
Bob Klonoff has posted on SSRN a draft of his article, Application of the New “Proportionality” Discovery Rule in Class Actions: Much Ado About Nothing, which is forthcoming the Vanderbilt Law Review. Here’s the abstract:
The “proportionality” amendment to the federal discovery rules, which went into effect on December 1, 2015, was greeted with panic by the plaintiffs’ bar (and the academy) and euphoria by the defense bar. Both sides predicted that the impact would be profound and immediate. Some predicted that the impact would be especially great in class actions. To examine whether the predictions have been correct, the author has reviewed every published judicial opinion (approximately 135) between December 1, 2015, and April 30, 2018, that applies the new proportionality rule in the class action context. The analysis is necessarily anecdotal rather than empirical. Nonetheless, the results are striking. At bottom, the proportionality amendment has had little impact, at least in the class action context. Courts have generally indicated that the new rule does not fundamentally change the governing principles. In ruling on discovery disputes in class actions, courts continue to conduct nuanced, highly fact-specific analyses, with results that differ little from pre-amendment case law. The courts are especially liberal in allowing discovery that is relevant to class certification. In short, the class action discovery decisions thus far do not support the predictions that the proportionality rule would lead to a sea change.
Tuesday, May 29, 2018
Arthur Miller has published What Are Courts For? Have We Forsaken the Procedural Gold Standard?, 78 La. L. Rev. 739 (2018). The article expands on his Alvin and Janice Rubin Lecture at LSU.
Friday, May 18, 2018
Brooke Coleman has posted on SSRN a draft of her essay, #SoWhiteMale - Federal Civil Rulemaking, which is forthcoming in the Northwestern University Law Review. Here’s the abstract:
116 out of 136. That is the number of white men who have served on the 82-year old committee responsible for creating and maintaining the Federal Rules of Civil Procedure. The tiny number of non-white, non-male committee members is disproportionate even in the context of the white-male-dominated legal profession. Were the rules simply a technical set of instructions made by a neutral set of experts, perhaps these numbers might not be as disturbing. But that is not the case. The Civil Rules embody normative judgments about the values that have primacy in our civil justice system, and the rulemakers—while expert—are not apolitical actors. This essay argues that the homogeneous composition of the rulemaking committee, not only historically, but also today, limits the quality of the rules produced and perpetuates inequality. The remedy to this problem is straightforward: appoint different people to the rulemaking committee. To be sure, the federal civil rulemaking process is but one small part of where and how gender and racial identity matter. Even still, this essay argues that the rulemaking committee members, the Judiciary, and the Bar should demand that the civil rulemaking committee cease being #SoWhiteMale.
Monday, April 30, 2018
Whether, or in what circumstances, a cy pres award of class action proceeds that provides no direct relief to class members supports class certification and comports with the requirement that a settlement binding class members must be “fair, reasonable, and adequate.”
Friday, April 27, 2018
Yesterday the Supreme Court adopted amendments to the Federal Rules of Civil Procedure (covered earlier here) and transmitted them to Congress. These amendments affect Rules 5, 23, 62, and 65.1. Unless Congress intervenes, they will take effect on December 1, 2018.
Monday, April 23, 2018
Tuesday, April 17, 2018
Agnieszka McPeak (Toledo Law) has published an article entitled Disappearing Data at 2018 Wis. L.R. 17, which considers the discovery implications of ephemeral social media platforms like Snapchat. Here's the abstract:
“Ephemeral” applications like Snapchat facilitate social interaction in a format that mimics the impermanence of face-to-face conversations. In the age of “big data” and the growing privacy concerns it raises, platforms offering ephemeral social media tools are meeting a market demand for smaller digital footprints. Additionally, these platforms are responding to regulatory pressure to embrace “privacy by design,” the idea that new technology should be built with privacy as a goal from the ground up. Indeed, ephemeral platforms, though imperfect in their impermanence, mark a positive shift in the direction of data minimization.
But the Federal Rules of Civil Procedure provide for broad discovery of electronically stored information. And they mandate, along with other rules, preservation of potentially relevant data in anticipation of litigation. Preservation duties for this new brand of ephemeral data, however, have not been clearly defined.
This article urges for a fair and balanced approach to defining preservation duties for disappearing data. While ephemeral content may be discoverable, onerous preservation duties are unwarranted and will negatively impact both corporate and individual litigants alike. For corporate interests, overly broad preservation duties lead to risk-averse companies stockpiling all things digital, often at great cost. For individuals, the law should recognize that mobile technology has become ubiquitous and social media is a key tool for personal expression, free speech, and social interaction. But individuals also have become the unwitting stewards of vast amounts of data, some of which is dynamic and ever-changing. Deletion or revision of personal information is a normal occurrence on social media platforms — indeed, some are a product of privacy by design. Overly broad preservation duties for individual litigants thus impose unwarranted burdens and are out of step with technological change.