Thursday, November 19, 2015

Thornburg on Cognitive Bias, the "Band of Experts," and the Anti-Litigation Narrative

Professor Elizabeth Thornburg has posted on SSRN her article, Cognitive Bias, the "Band of Experts," and the Anti-Litigation Narrative.  The article was written for the Clifford Symposium this past spring and is forthcoming, along with other articles from the symposium, in DePaul Law Review early next year.

Abstract:

In December of 2015, yet another set of discovery rule amendments that are designed to limit discovery will go into effect. This article argues that the consistent pattern of discovery retrenchment is no accident. Rather, a combination of forces is at work. The Supreme Court consistently signals its contempt for the discovery process, and the Chief Justice’s pattern of appointments to the Rules Committees skews toward Big Law defense-side lawyers and judges appointed by Republican Presidents. In addition, longstanding corporate media campaigns have created and reinforced an anti-litigation narrative that, through the power of repetition, dominates public discourse. Further, predictable cognitive biases take this blend of politics, elite and often defense-side experience, and corporate manipulation of public opinion and blind the Rules Committee members to the possibilities of solutions that expand rather than contract information sharing. This article considers these phenomena, and recommends more heterogeneous committee membership, the use of deliberative processes that are more likely to overcome flawed heuristics, and greater reliance on non-opinion-poll data in the rulemaking process.

 

November 19, 2015 in Federal Rules of Civil Procedure, Recent Scholarship | Permalink | Comments (0)

Tuesday, November 17, 2015

Law Professor Challenges the Seeming Federal Endorsement of Duke Nonbinding “Guidelines” on Proportionality Amendments

When I first read a draft of the Duke Center for Judicial Studies’ "Guidelines and Suggested Practices for Implementing the 2015 Discovery Amendments to Achieve Proportionality" (the “Duke Guidelines”), I was confused.  I was aware, of course, that Duke Law School had sponsored the 2010 conference on civil litigation now known commonly as the “Duke Conference,” which spawned the amendments to the Federal Rules of Civil Procedure that, apart from divine intervention, appear certain to go into effect on December 1, 2015.  The dean of Duke Law School is David F. Levi, a former federal district judge who was chair of both the Civil Rules Advisory Committee and the Committee on the Rules of Practice and Procedure (known as the Standing Committee).  The papers that were presented at the Duke Conference are still posted on the official website of the United States courts. 

In 2011, Duke Law School created the Duke Center for Judicial Studies, a primary goal of which was to offer “educational programs for judges.”  In addition, the Center took over the publication of Judicature: The Scholarly Journal for Judges, which is “mailed free of charge to all Article III judges, federal magistrate judges, and state supreme court judges.”           

It seems clear that Duke has positioned itself to appear as a quasi-official body with particular expertise and gravitas in matters of federal litigation.  Even the Advisory Committee on Criminal Rules has met at Duke.

So this summer, as I read a draft of the “Duke Guidelines” regarding the “proportionality” amendment to the FRCP (which will require all discovery to be “proportional to the needs of the case”), I had a lot of questions.  These aren’t binding, are they?  [No.]  Who wrote these?  [According to the final version, mainly the Reporters, with Team Leaders and Team Members providing feedback.]  At whose instigation?  [The Duke Center’s Advisory Council.]  Why on earth are they necessary?  [Rhetorical.]  Why were these being drafted well before the rules even become effective?  Do these things have any basis in case law?  Why don’t they compare what they are saying to the official Advisory Committee notes?  Why don’t they give any concrete examples of a particular type of case such as employment discrimination?  And isn’t there a Rules Enabling Act issue in here somewhere?       

Despite all these questions, I frankly put the Guidelines out of my mind, after satisfying myself that the Duke Center was not representing that its Guidelines were legally binding, and after posting about their existence on this blog (stating that the Center had asked for comments). 

Professor Suja Thomas of the University of Illinois College of Law, however, has challenged the federal courts’ seeming “official esteem” of the Duke Guidelines that results from various ties between Duke and the federal Rules Committees.

 

The “Roadshow” that Uses the Duke Guidelines to “Think About” Proportionality

As we reported earlier, the Duke Center and the ABA are jointly presenting an “unprecedented” "Roadshow" on the 2015 discovery amendments.  The former chair and a former member of the Civil Rules Advisory Committee, Judge Lee Rosenthal and Professor Steven Gensler, respectively, will be the moderators for the Roadshow.  As Professor Thomas has noted, the Roadshow’s emphasis on Judge Rosenthal’s and Professor Gensler’s former affiliation with the Advisory Committee “gives the training an imprimatur of approval.” 

Continue reading

November 17, 2015 in Federal Rules of Civil Procedure | Permalink | Comments (0)

Monday, November 16, 2015

Public Interest Group Reports on November 5 Advisory Committee Meeting

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

Highlights from the Center's report:

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

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

 

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

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)

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 29, 2015

Fourth Civil Justice Reform Summit Sponsored by IAALS

The Institute for the Advancement of the American Legal System is sponsoring its Fourth Civil Justice Reform Summit: Creating the Just, Speedy, and Inexpensive Courts of Tomorrow.  The program will be held February 25-26, 2016 at the University of Denver.

The program will include panels on both federal and state rules projects, proportionality, cooperation, and many other topics.  Panelists include federal and state court judges, lawyers, academics, and other researchers.

 

Hat tip: Linda Sandstrom Simard

October 29, 2015 in Conferences/Symposia, Discovery, Federal Rules of Civil Procedure, State Courts | Permalink | Comments (0)

Friday, October 23, 2015

Programs Abound to Explain the 2015 FRCP Amendments

With the newest revisions to the Federal Rules of Civil Procedure due to take effect on December 1, 2015, a number of organizations, such as the ABA and other bar associations, are offering programs and webinars to ease the transition.

Perhaps most prominent is the "Rules Amendments Roadshow," a joint program of the American Bar Association Section of Litigation and the Duke Law Center for Judicial Studies billed as “a 13-City Tour Discussing The Most Important Federal Discovery Changes In Over A Decade.”  The moderators will be Judge Lee H. Rosenthal and Professor Steven Gensler and panelists will include "local judges, magistrates, and top practitioners in each city."  The "roadshow" starts in New York on November 10, continues in eleven more cities, and concludes in Miami on April 1.  (No, this is not an April Fools' joke.)

The ABA is also offering a webinar entitled "The 2015 Amendments to the Federal Rules of Civil Procedure, Part 1: The Impact of Amended Rule 37(e) on E-Discovery,” on October 29, 2015 from 1:00 PM - 2:30 PM ET.  The webinar faculty will be Carol Geisler, Legal Counsel, CVS/Caremark, Chicago, IL, Hon. Paul W. Grimm, US District Judge, District of Maryland, Greenbelt, MD, and Christopher M. Morrison, Partner, Jones Day, Boston, MA.  The moderator will be Hon. Frank J. Bailey, US Bankruptcy Judge, District of Massachusetts, Boston, MA.

Local bar associations, such as the Tennessee Defense Lawyers Association are also offering programs.

Finally, although not a live program, the Defense Counsel Journal has an article in its October 2015 issue by Thomas Y. Allman entitled "The 2015 Civil Rules Package As Transmitted to Congress." Mr. Allman is a former General Counsel and Chair Emeritus of the Sedona Conference Working Group 1 on EDiscovery and the E-Discovery Committee of Lawyers for Civil Justice.

October 23, 2015 in Conferences/Symposia, Federal Rules of Civil Procedure | 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)

Wednesday, September 16, 2015

House Committee to Consider Bill Making Rule 11 Sanctions Mandatory

The House Committee on Rules is scheduled to consider the Lawsuit Abuse Reduction Act of 2015 (H.R. 758) tonight, September 16, 2015, at 7:00 p.m.

We identified the key features of this bill earlier here.  

 

September 16, 2015 in Federal Rules of Civil Procedure | Permalink | Comments (0)

Tuesday, August 11, 2015

Duke Center Drafts Its Own “Guidelines” for Proportionality Amendments

The Center for Judicial Studies of Duke Law School has issued a draft of “Guidelines and Suggested Practices for Implementing the 2015 Discovery Amendments to Achieve Proportionality.”  The Center has asked for public comments on the draft by August 21, 2015. 

The Center's website states: “The Center for Judicial Studies holds annual bench-bar-academy conferences that identify serious problems in the law, and effect real improvements in laws, rules, and regulations.  The conferences bring together prominent bench leaders, government officials, senior-level lawyers, technical experts, and academics to address emerging legal issues and develop consensus positions that will guide government policy-makers and decision-makers by means of best practices or guidelines.”

The Guidelines on Proportionality result from this process.  Of course, the Guidelines do not have the force of law.  The authors (who are unnamed on the draft) appear to be emulating the method of The Sedona Conference.

Barring action by Congress, the pending amendments to the FRCP will become effective on December 1, 2015.

Financial sponsors of Duke Law School's Center for Judicial Studies in 2014 included Bank of America, ExxonMobil, GE’s Power and Water, Home Depot, King & Spalding, Kirkland & Ellis, Lieff, Cabraser, Heimann & Bernstein, Merck & Co., Monsanto, Pfizer, Inc., Skadden, Arps, Slate, Meagher & Flom, and State Farm Insurance Company. 

Comments on the Guidelines should be sent to the Director of the Center, John Rabiej, john.rabiej@law.duke.edu.  

Hat tip: Valerie Nannery.

August 11, 2015 in Discovery, Federal Rules of Civil Procedure | Permalink | Comments (0)

Wednesday, July 15, 2015

Wasserman on Mixed Signals on Summary Judgment

Howard Wasserman has posted on SSRN  his article, Mixed Signals on Summary Judgment, published in Michigan State Law Review.

Abstract:

This essay examines three cases from the Supreme Court’s October Term 2013 addressing the standards for summary judgment. In one case, the Court affirmed summary judgment against a civil-rights plaintiff, in a continued erroneous over-reliance on the certainty of video evidence. In two other cases, the Court rejected the grant of summary judgment against civil-rights plaintiffs, arguably for the first time in quite a while. This essay unpacks the substance and procedure underlying all three decisions and considers the effect of the three cases and what signals they send to lower courts and litigants about the proper approach to summary judgment, particularly in civil-rights cases involving video evidence.

July 15, 2015 in Federal Rules of Civil Procedure, Recent Scholarship, Supreme Court Cases | Permalink | Comments (0)

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.   

Govtrack.us 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)

Tuesday, June 23, 2015

Moore on the Pending Amendments to the FRCP

Forthcoming in the University of Cincinnati Law Review is my article, The Anti-Plaintiff Pending Amendments to the Federal Rules of Civil Procedure and the Pro-Defendant Composition of the Federal Rulemaking Committees.

Abstract:

In the classical David-and-Goliath lawsuit brought by an individual person against an institutional defendant, the pending amendments to the Federal Rules of Civil Procedure hurt David and help Goliath more than any previous round of amendments. The amendments represent corporate defendants' victory in the thirty-year war to limit the scope of discovery by enshrining "proportionality" as part of the definition of, rather than a limitation on, the scope of discovery. The amendments will also make it more difficult for plaintiffs to obtain an adverse inference jury instruction or other sanctions for a defendant’s intentional loss of electronic evidence. For no good reason, the amendments will reduce the length of time within which plaintiffs must effectuate service of process, thereby gifting defendants with a corresponding reduction in the statute of limitations. In addition, the amendments wipe out thirty-six official forms, on the thin excuse that the Advisory Committee wants to "get out of the forms business"; in fact, many interpret the move as a tacit agreement with the heightened pleading standard imposed on plaintiffs by the Supreme Court in Twombly and Iqbal.

The amendments' mostly anti-plaintiff effect is evidenced by a stark split in the public reaction, with plaintiffs’ lawyers almost unanimously against most of the amendments and defendants’ lawyers almost unanimously in favor. But the Advisory Committee was astoundingly indifferent to the polarized public reaction to the proposed amendments. One Advisory Committee member dismissed the stories told at the public hearings by plaintiffs' lawyers about their need for discovery as "Queen-For-A-Day issues," a reference to a 50-year-old daytime television show in which women tearfully told their real-life sob stories to vie for prizes.

Remarkably, in evaluating the need for these amendments, the Committee did not rely on very much case law, any government caseload statistics, or any of the ninety-four district court reports on “cost and delay” mandated by the Civil Justice Reform Act of 1990. Instead, the Committee commissioned a mound of so-called “empirical studies” which consisted mostly of flawed opinion surveys of self-selected attorneys. The one methodologically sound study, conducted by the Federal Judicial Center, found that discovery worked well and at modest cost in most federal cases. The Committee either ignored or mischaracterized the FJC’s study.

Given the makeup of the Advisory Committee and the Standing Committee, none of this is surprising. The members of both committees are all appointed by Chief Justice John Roberts, and except for a few tokens, they are ideologically predisposed to think like Federalist Society members, demographically predisposed to think like elite white males, and/or experientially predisposed to think like corporate defense lawyers. There is no explicit constitutional, statutory, or rules authority for the Chief Justice’s unbridled appointment power. The Article concludes by forecasting the passage of a default “requester pays discovery costs” rule that is sought by defense interests, unless the mechanism for appointment of federal rules committee members is changed.

June 23, 2015 in Federal Rules of Civil Procedure, Recent Scholarship | Permalink | Comments (0)

Monday, June 8, 2015

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

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

(I) Whether differences among individual class members may be ignored and a class action certified under Federal Rule of Civil Procedure 23(b)(3), or a collective action certified under the Fair Labor Standards Act, where liability and damages will be determined with statistical techniques that presume all class members are identical to the average observed in a sample.

(II) Whether a class action may be certified or maintained under Rule 23(b)(3), or a collective action certified or maintained under the Fair Labor Standards Act, when the class contains hundreds of members who were not injured and have no legal right to any damages.

You can find all of the cert-stage briefing, and keep track of the merits briefs as they come in, at SCOTUSblog.

 

 

 

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

Thursday, June 4, 2015

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

I reported earlier that the House Judiciary Committee held a hearing on February 27, 2015 on “The State of Class Actions Ten Years After the Enactment of the Class Action Fairness Act,” at which I testified as the only minority witness.  The transcript is now online.

Questions for the record were submitted to me after the hearing.  I submitted my response to the questions for the record on May 11, 2015.  My response does not appear to have been posted on the website for the hearing, but I posted it on SSRN.  

Abstract:

This is Professor Moore’s response to questions for the record submitted to her after the hearing before the Committee on the Judiciary, Subcommittee on the Constitution and Civil Justice, U.S. House of Representatives, on "The State of Class Actions Ten Years After the Enactment of the Class Action Fairness Act" on February 27, 2015. The questions submitted to her asked whether, when determining the requirements of class certification, Congress should limit a class to those individuals "with the same or similar injuries" or those individuals whose damages or injuries have been sustained due to "the same or similar proximate cause" or "the same product or activity."

The response begins by noting that the wording of the questions appeared designed to eliminate what the majority witnesses at the hearing termed "no-injury class actions." The response argues that the term "no-injury class action" is a recently-invented term without roots in the law of class actions, and that the term is misleading when applied indiscriminately to all class actions. The substantive law, whether federal or state, determines when a person is "injured," and the majority witnesses’ assertion that certain class members have suffered "no injury" contravenes the governing substantive law.

The response then more specifically addresses the suggested language in the questions submitted. The suggested limitations, if passed by Congress, would restrict class actions. First, it is unclear how the broad-brush language would be applied to class actions for injunctive relief, such as civil rights cases. Second, the language sounds like existing law, but those seeking to eliminate so-called "no-injury class actions" intend that the language should be interpreted in a new and more radical way so to make it much more difficult to obtain class certification than under existing law. Third, the language would in essence require a class, at certification, to include only class members who could prove their case on the merits. That would constitute an impermissible "fail-safe" class allowing any class member who did not prove her case on the merits to escape being bound by the class judgment. Fourth, the existing certification requirements of commonality, typicality, and predominance provide sufficient tools for federal judges to rigorously apply the standards to unique factual situations.

The response also notes that the Civil Rules Advisory Committee is currently considering numerous changes to Rule 23, so that legislation is premature. Finally, the response calls for Congress to require the public release of data on federal class actions.

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

Wednesday, June 3, 2015

House Bill to Amend Rule 11 Reported Out of Committee

H.R. 758, the so-called “Lawsuit Abuse Reduction Act of 2015,” was reported out by the House Judiciary Committee on May 14, 2015.  

The bill would return to the pre-1993 era by:

  • Making sanctions for a Rule 11 violation mandatory instead of discretionary.
  • Eliminating the 21-day “safe harbor” provision.
  • Replacing deterrence with compensation as the primary purpose of sanctions. 

The bill also claims that it is not intended to impede the assertion or development of new claims.

A committee hearing was held on the bill on March 17, 2015.  A similar Senate bill, S. 401, is still in committee.

Republicans have been attempting to pass this bill since at least 2011. See Professor Lonny Hoffman's article, The Case Against the Lawsuit Abuse Reduction Act of 2011.

June 3, 2015 in Federal Rules of Civil Procedure | 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.

And:

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.”

Continue reading

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

Monday, May 18, 2015

SCOTUS Cert Grant on Article III, Mootness, Class Actions & Sovereign Immunity

Today the Supreme Court granted certiorari in Campbell-Ewald Company v. Gomez, which presents the following questions:

1. Whether a case becomes moot, and thus beyond the judicial power of Article III, when the plaintiff receives an offer of complete relief on his claim.

2. Whether the answer to the first question is any different when the plaintiff has asserted a class claim under Federal Rule of Civil Procedure 23, but receives an offer of complete relief before any class is certified.

3. Whether the doctrine of derivative sovereign immunity recognized in Yearsley v. W.A. Ross Construction Co., 309 U.S. 18 (1940), for government contractors is restricted to claims arising out of property damage caused by public works projects.

You can see all of the cert-stage briefing, and keep track of the merits briefs as they come in, at SCOTUSblog.

 

 

May 18, 2015 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Tuesday, May 12, 2015

Coleman PrawfsBlawg Post on Amending Rule 23

Brooke Coleman has a post today over on PrawfsBlawg called "Civil Rule 23 -- To Amend or Not to Amend?"

She summarizes three of the “conceptual sketches” that the Rule 23 Subcommittee of the Civil Rules Advisory Committee is currently considering.

May 12, 2015 in Class Actions, Federal Rules of Civil Procedure, Weblogs | Permalink | Comments (0)