Monday, June 4, 2018

Arbitration takes center stage at federal court hearing in Fitbit class action

From Alison Frankel, Fitbit lawyers reveal ‘ugly truth’ about arbitration, judge threatens contempt (Reuters):

At a hearing Thursday in San Francisco federal court, a lawyer for the fitness tracking company Fitbit told U.S. District Judge James Donato that no rational customer would arbitrate a $162 claim against the company. The filing fee for a proceeding before the American Arbitration Association, said William Stern of Morrison & Foerster, is $750 - and that’s just to get the case started. It simply doesn’t make sense, Stern said no fewer than six times at Thursday’s hearing, to arbitrate a $162 claim.

* * *

Thursday’s hearing was supposed to be about the opt-outs’ class action, but Judge Donato quickly homed in on the arbitration controversy. He said Fitbit’s handling of the McLellan arbitration “appears to be an absolutely unacceptable level of gamesmanship” and ordered briefing from both sides on whether Fitbit had engaged in “a form of civil contempt.”

The judge said he had sent the case to arbitration because Fitbit said that’s where it belonged. It is “profoundly troubling,” Judge Donato said, that Fitbit unilaterally decided McLellan’s claim could not be arbitrated because, as he described the company’s position, “We think it’s a cheap case, and we offered her plenty money to get rid of it, and she said no, and she’s crazy as a result of that, so our hands are now tied.’”

(H/T: Bob Klonoff) 

 

 

June 4, 2018 in Class Actions, In the News | Permalink | Comments (0)

Thursday, April 5, 2018

Wisconsin Requires Disclosure of Litigation Funding

Yesterday’s story in the National Law Journal begins: “All litigation funding arrangements in Wisconsin state courts will have to be disclosed in civil cases under a new measure signed into law by the state’s governor Tuesday.”

Here’s the text of the bill.

 

 

 

April 5, 2018 in Discovery, In the News, State Courts | Permalink | Comments (0)

Saturday, March 17, 2018

Procedural Moves in Stormy Daniels’ Lawsuit Against Donald Trump

There has been a lot of coverage of Donald Trump’s relationship with Stephanie Clifford (known by her stage name Stormy Daniels), and the $130,000 payment she received in connection with a nondisclosure agreement during the heat of the 2016 presidential campaign.

Earlier this month, Clifford filed a lawsuit against Trump and Essential Consultants, LLC, in California state court (Los Angeles County). Essential Consultants, which was a party to the nondisclosure agreement, is apparently a Delaware LLC, and Trump attorney Michael Cohen is its sole member. Clifford’s complaint seeks a declaration that the “Hush Agreement” is unenforceable.

Download State Court Complaint

Yesterday, Essential Consultants removed the case to federal court. The notice alleges that, for purposes of diversity jurisdiction, Clifford is a Texas citizen and Trump and Essential Consultants are New York citizens. It also alleges that “the value of the object of the litigation” exceeds $75,000. The federal case has been docketed as Clifford v. Trump, No. 2:18-cv-02217 (C.D. Cal.)

Download Notice of Removal

Donald Trump filed a separate document joining in Essential Consultants’ notice of removal. This appears to be his effort to comply with 28 U.S.C. § 1446(b)(2)(A), which provides: “When a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action.”

Download Trump Joinder in Notice of Removal

You can find more coverage of the removal to federal court here: 

 

 

 

March 17, 2018 in Current Affairs, Federal Courts, In the News, Subject Matter Jurisdiction | Permalink | Comments (1)

Tuesday, March 13, 2018

Federal Judiciary Workplace Conduct Working Group issues report to Judicial Conference of the United States

From Tony Mauro, Federal Judiciary Unveils First Reforms From Harassment Working Group:

A working group has come up with nearly 20 reforms aimed at dealing with concerns about workplace harassment throughout the federal judicial system.

James Duff, director of the Administrative Office of the U.S. Courts, told the Judicial Conference in an interim report on Tuesday, “Any harassment in the judiciary is too much.” The 26-member conference, composed of federal judges from across the country, convened at the U.S. Supreme Court for its regular spring meeting.

The final report is expected in May.

And here are more details from the U.S. Courts website:

The following either have been accomplished or are in progress:

  • Provided a session on sexual harassment during the ethics training for newly appointed judges in February.
  • Established an online mailbox and several other avenues and opportunities for current and former judiciary employees to comment on policies and procedures for protecting and reporting workplace misconduct.
  • Added instructive in-person programs on judiciary workforce policies and procedures and workplace sexual harassment to the curricula at Federal Judicial Center programs for chief district and chief bankruptcy judges this spring and upcoming circuit judicial conferences throughout the country this spring and summer.
  • Removed the model confidentiality statement from the judiciary’s internal website to revise it to eliminate any ambiguous language that could unintentionally discourage law clerks or other employees from reporting sexual harassment or other workplace misconduct.
  • Improve law clerk and employee orientations with increased training on workplace conduct rights, responsibilities, and recourse that will be administered in addition to, as well as separately from, other materials given in orientations.
  • Provide “one click” website access to obtain information and reporting mechanisms for both Employment Dispute Resolution (EDR) and Judicial Conduct and Disability Act (JC&D) claims for misconduct.
  • Create alternative and less formalized options for seeking assistance with concerns about workplace misconduct, both at the local level and in a national, centralized office at the Administrative Office of the U.S. Courts, to enable employees to raise concerns more easily.
  • Provide a simplified flowchart of the processes available under the EDR and JC&D.
  • Create and encourage a process for court employee/law clerk exit interviews to determine if there are issues and suggestions to assist court units in identifying potential misconduct issues.
  • Establish a process for former law clerks and employees to communicate with and obtain advice from relevant offices and committees of the judiciary.
  • Continue to examine and clarify the Codes of Conduct for judges and employees.
  • Improve communications with EDR and JC&D complainants during and after the claims process.
  • Revise the Model EDR Plan to provide greater clarity to employees about how to navigate the EDR process.
  • Establish qualifications and expand training for EDR Coordinators.
  • Lengthen the time allowed to file EDR complaints.
  • Integrate sexual harassment training into existing judiciary programs on discrimination and courtroom practices.
  • Review the confidentiality provisions in several employee/law clerk handbooks to revise them to clarify that nothing in the provisions prevents the filing of a complaint.
  • Identify specifically the data that the judiciary collects about judicial misconduct complaints to add a category for any complaints filed relating to sexual misconduct. The data shows that of the 1,303 misconduct complaints filed in fiscal year 2016, more than 1,200 were filed by dissatisfied litigants and prison inmates. No complaints were filed by law clerks or judiciary employees and no misconduct complaints related to sexual harassment.

 

 

 

March 13, 2018 in Federal Courts, In the News | Permalink | Comments (0)

Wednesday, October 25, 2017

Senate votes to repeal CFPB’s rule on arbitration

Last night, during Game 1 of the World Series, the Senate passed House Joint Resolution 111, which would repeal the Consumer Financial Protection Bureau’s rule on arbitration agreements (covered earlier here). The CFPB’s rule would prohibit providers of certain consumer financial products and services from using an arbitration agreement to bar consumers from filing or participating in a class action. 

The vote was 50-50, with Vice President Pence breaking the tie. (The vote in the House of Representatives back in July was 231-190.)

 

 

 

 

October 25, 2017 in Class Actions, In the News | Permalink | Comments (0)

Friday, April 7, 2017

And then there were nine

After changing the Senate rules yesterday to eliminate the possibility of a filibuster for Supreme Court nominees, the Senate has just confirmed Tenth Circuit Judge Neil Gorsuch to the vacant seat on the Supreme Court. His first weeks on the job feature oral arguments in several cases raising civil procedure and federal courts issues. 

Monday, April 17:

Tuesday, April 25:

 

 

 

 

 

April 7, 2017 in Federal Courts, In the News, Recent Decisions, Standing, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Sunday, February 26, 2017

Republicans Introduce Sweeping Federalization of Tort Law, Limiting Recovery to Victims

The Republicans in Congress are intent on expropriating ordinary citizens’ right to sue wrongdoers and allowing corporations and other defendants to violate the law without consequence.   

Not content to protect corporations from accountability by hobbling class actions and intimidating plaintiffs' lawyers with mandatory Rule 11 sanctions, Republicans are going for the full monty: federalized so-called “tort reform” (or what I call “tort elimination”).

Without a hearing, H.R. 1215  (Download HR1215goes to straight to markup in the House Judiciary Committee this Tuesday.  The bill was sponsored by Rep. Steve King (R-IA 4th Dist.). 

H.R. 1215 has the Orwellian name of “Protecting Access to Care Act of 2017” (because all Republican-sponsored bills about the civil justice system are named just the opposite of what they would actually do to ordinary citizens).  The name of this bill should be “Protecting Doctors and Hospitals from Liability for Wrongdoing and Protecting Insurance Companies from Having to Pay Legitimate Claims.”

Although Republicans supposedly care about “states’ rights,” this bill would eliminate (by preempting) vast swaths of state tort law.  Among the many draconian provisions of the bill:

  • It would impose a uniform 3-year statute of limitations on “health care lawsuits.”* States would be free to have a shorter one, but not a longer one.
  • It would impose a uniform $250,000 limit on noneconomic damages.
  • The bill would not limit economic damages, but it would allow states to limit economic damages, noneconomic damages, and the total amount of damages.
  • Naturally, “the jury shall not be informed about the maximum award for noneconomic damages.” Because then they might at last understand what “tort reform” means.
  • The bill would eliminate joint-and-several liability. This could deprive an innocent injured person of full compensation, while shielding a wrongdoing defendant from paying for an injury he helped to cause.
  • “Any party” would be allowed to introduce evidence of collateral source benefits.
  • An award of future damages over $50,000 would be required, at the request of “any party,” to be paid in periodic payments.
  • The bill would completely release health care providers (as defined) from any liability in a products liability action for prescribing a product approved by the FDA.

Finally, no Republican-sponsored civil justice bill would be complete without denigrating plaintiffs’ attorneys and making it even more uneconomical for plaintiffs’ attorneys to represent clients.  This bill goes so far as to call the payment to attorneys of an agreed-upon fee a “conflict of interest.”  The bill would give the court the power to restrict a contingent fee.  And “in no event shall” the contingent fee exceed 40% of the first $50,000 recovered, 33-1/3% of the next $50,000, 25% of the next $500,000, and 15% of any amount in excess of $600,000.  

So now the federal government would be dictating to the states what attorneys’ fees they could allow.  Those limits would apply even in settlement, mediation, or arbitration.

Really, guys?  This bill isn’t even getting a hearing?  Maybe to talk about its practical elimination of citizens’ ability to sue or the fact that the bill is a gift to the insurance industry?  Maybe to talk about the experience that many states, swept up in “tort reform” over the last several decades, have had with similar provisions (many of which have been held unconstitutional)?  How about the fact that the bill slavishly follows the positions of the American Tort Reform Association and the shadowy American Legislative Exchange Council?

H.R. 1215 joins five other bills introduced in the past few weeks that tilt the table in favor of corporate defendants in litigation.  Is there any item on the corporate defense wish list that we haven’t seen introduced in Congress yet?

It is possible, though, that this bill could have one positive effect.  It may induce doctors, hospitals, and insurance companies who currently refuse to participate in federal programs to do so, based upon the limited liability the bill would ensure. 

*Definition: “The term ‘health care lawsuit’ means any health care liability claim concerning the provision of goods or services for which coverage was provided in whole or in part via a Federal program, subsidy or tax benefit, or any health care liability action concerning the provision of goods or services for which coverage was provided in whole or in part via a Federal program, subsidy or tax benefit, brought in a State or Federal court or pursuant to an alternative dispute resolution system, against a health care provider regardless of the theory of liability on which the claim is based . . .”  This would presumably include Medicare, Medicaid, and the Affordable Care Act.

February 26, 2017 in Current Affairs, In the News, State Courts | Permalink | Comments (2)

Sunday, January 29, 2017

Legal Challenges to Trump Executive Orders on Immigration and Refugee Policy

Yesterday several legal challenges to Trump’s Executive Orders were filed. If you want to keep track of the various filings and orders as these cases proceed, the University of Michigan’s Civil Rights Litigation Clearinghouse is collecting them here.

 

 

 

January 29, 2017 in Current Affairs, Federal Courts, In the News, Recent Decisions | Permalink | Comments (0)

Saturday, January 28, 2017

Today's Lawsuit Challenging Trump's Executive Order on Immigration

Here is the complaint in Darweesh v. Trump, which was filed early this morning in U.S. District Court for the Eastern District of New York:

Download Darweesh v Trump Complaint

Some coverage of the case:

 

 

 

 

January 28, 2017 in Class Actions, Current Affairs, Federal Courts, In the News | Permalink | Comments (0)

Thursday, January 26, 2017

Trump Litigation Update

Recent lawsuits against Donald Trump may end up raising some interesting civil procedure and federal courts issues. Here are some documents and reports relating to pending litigation:

 

CREW v. Trump
(This is the Emoluments Clause challenge filed Monday in the U.S. District Court for the Southern District of New York)

 

Zervos v. Trump
(Defamation action against Trump in New York State Court)

 

AES Electrical v. Trump Old Post Office LLC
(This case was filed yesterday in D.C. Superior Court by an electrical contractor that claims it wasn’t paid for $2 million worth of work on Trump’s DC hotel.)

 

 

 

January 26, 2017 in Current Affairs, In the News | Permalink | Comments (0)

Tuesday, September 13, 2016

Newly Approved Federal Court Pilot Programs

Today’s announcement on the U.S. Courts website begins:

Two pilot programs – one that will allow pro se prisoners to file certain federal court documents electronically from a kiosk in a prison and a second that will provide judicial assistance to select district courts with unusually high civil caseloads – were approved today by the Judicial Conference at its biannual meeting in Washington, D.C.

 

 

Publish

 

September 13, 2016 in Federal Courts, In the News | Permalink | Comments (0)

Monday, August 22, 2016

Federal Court Dismisses Alien Tort Statute Claim Against U.S.-Based Turkish Cleric

Earlier this summer, Judge Robert Mariani of the U.S. District Court for the Middle District of Pennsylvania issued an opinion dismissing an Alien Tort Statute claim brought against Muhammed Fethullah Gülen, a Turkish cleric who has been a U.S. permanent resident since the 1990s. (Gülen has been in the news more recently following the attempted coup that took place in Turkey last month; Turkey is currently seeking Gülen’s extradition.)

Judge Mariani’s ruling in Ates v. Gülen contains a detailed discussion of the U.S. Supreme Court’s decision in Kiobel (an important Alien Tort Statute decision from 2013) as well as some of the post-Kiobel case law in the lower federal courts.

Download Ates v Gulen (MD Pa)

 

 

 

August 22, 2016 in Current Affairs, Federal Courts, In the News, Recent Decisions, Subject Matter Jurisdiction | Permalink | Comments (0)

Friday, August 19, 2016

Federal Judge Orders Hillary Clinton to Answer Interrogatories in FOIA Case

Today U.S. District Judge Emmet Sullivan issued an opinion in Judicial Watch v. U.S. Department of State, a FOIA case seeking employment records relating to Huma Abedin, long-time aide to Hillary Clinton. In connection with the plaintiff’s request for discovery under FRCP 56(d), the court ordered that the plaintiff may serve interrogatories on Hillary Clinton but could not depose her.

From the opinion:

The Court directs Judicial Watch to propound questions that are relevant to Secretary Clinton’s unique first-hand knowledge of the creation and operation of clintonemail.com for State Department business, as well as the State Department’s approach and practice for processing FOIA requests that potentially implicated former Secretary Clinton’s and Ms. Abedin’s emails and State’s processing of the FOIA request that is the subject of this action.

Download Opinion 2016-08-19 Hillary Clinton Interrogatories

 

 

 

 

August 19, 2016 in Current Affairs, Discovery, Federal Rules of Civil Procedure, In the News, Recent Decisions | Permalink | Comments (0)

California Supreme Court Decision on Class Action Attorney Fees

Last week the California Supreme Court issued an important decision on how to calculate the amount of attorney fees in class actions: Laffitte v. Robert Half International Inc.

Alison Frankel (Reuters) has this report.

 

Download Laffitte v Robert Half Intl (Cal.)

 

 

 

August 19, 2016 in Class Actions, In the News, Recent Decisions, State Courts | 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)

Friday, September 25, 2015

Means and Seiner on Navigating the Uber Economy

 

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

Abstract:

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

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

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

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

Tuesday, September 15, 2015

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

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

 

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

 

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

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

 

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

 

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

Friday, September 11, 2015

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

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

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

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

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

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

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

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

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

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

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

1 Chicago or Cook County, Illinois

2 Los Angeles, California

3 San Francisco, California

4 Philadelphia, Pennsylvania

5 Madison County, Illinois

6 Miami or Dade County, Florida

7 New Orleans or Orleans Parish, Louisiana

8 New York, New York

9 East Texas

10 St. Louis, Missouri

11 Detroit, Michigan

12 Washington, DC

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

14 Not sure

99 Decline to answer [EXCLUSIVE] [PHONE ONLY]

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

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

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

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

 Pop and chamber ranks

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

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

 

 

 

September 11, 2015 in Current Affairs, In the News | Permalink | Comments (0)

Wednesday, September 2, 2015

Possible "Coming Liberal Disaster" on Class Actions, Too

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

 

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

Continue reading

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

Tuesday, July 14, 2015

Female Lawyers Less Likely to be First Chair, Especially in High-Dollar Cases

From The Legal Intelligencer (by Gina Passarella, July 14, 2015):

Women comprise a disproportionately low percentage of lead trial counsel compared to their representation in the overall legal profession, a study for the American Bar Association's Commission on Women in the Profession has found.

While women make up at least 36 percent of the profession, according to the study, they comprise 24 percent of first-chair roles in civil cases. And those numbers are lower when looking at tort cases or the representation of businesses and individuals. Women are more highly represented in lead counsel roles on behalf of government entities or by working as prosecutors, the study found.

The study was performed by former commission chair Roberta Liebenberg of Fine, Kaplan and Black in Philadelphia and current commissioner Stephanie Scharf of Scharf Banks Marmor in Chicago. The two litigators based their survey on data from case filings in 2013 in the U.S. District Court for the Northern District of Illinois in an effort to capture a large district with a diverse caseload.

For more, click here. 

July 14, 2015 in In the News | Permalink | Comments (0)