Civil Procedure & Federal Courts Blog

Supreme Court of Canada Issues Major Decisions on Personal Jurisdiction

On Wednesday, the Supreme Court of Canada issued a series of decisions on personal jurisdiction:

• Club Resorts Ltd. v. Van Breda, 2012 SCC 17
• Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18
• Breeden v. Black, 2012 SCC 19

According the Vancouver Sun, the decisions "set national standards, bringing much-needed guidance to a very complex area of Canadian law." Reports of widespread jealousy in the United States have yet to be confirmed. Cf., e.g., J. McIntyre Machinery, Ltd. v. Nicastro, 131 S. Ct. 2780 (2011); Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102 (1987).

--A

(Hat Tip: Linda Silberman)

House Republicans Link Bipartisan “IPAB Repeal” Bill with Partisan “Tort Reform” Bill

You can never be too rich or too thin, and apparently you can never get enough “tort reform,” either.
And if you keep repeating over and over that damages caps lower malpractice premiums, maybe it will someday be true despite all empirical evidence to the contrary.

A bill to repeal a portion of “Obamacare” dealing with the Independent Payment Advisory Board (H.R. 452) had bipartisan support until House Republicans linked it with the Orwellian “Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2011” (H.R. 5). The resulting bill, (http://docs.house.gov/billsthisweek/20120319/CPRT-112-HPRT-RU00-HR5Floor.xml) now called the “Protecting Access to Healthcare Act,” provides in its findings:

(1) EFFECT ON HEALTH CARE ACCESS AND COSTS.—Congress finds
that our current civil justice system is adversely affecting patient access to
health care services, better patient care, and cost-efficient health care, in
that the health care liability system is a costly and ineffective mechanism for
resolving claims of health care liability and compensating injured patients,
and is a deterrent to the sharing of information among health care
professionals which impedes efforts to improve patient safety and quality of
care.

(2) EFFECT ON INTERSTATE COMMERCE.—Congress finds that the
health care and insurance industries are industries affecting interstate
commerce and the health care liability litigation systems existing throughout
the United States are activities that affect interstate commerce by
contributing to the high costs of health care and premiums for health care
liability insurance purchased by health care system providers.

Same old rhetoric, same old provisions -- $250,000 cap on noneconomic damages, 3-year-statute of limitations, elimination of joint and several liability, court review and serious reduction of plaintiff’s attorneys’ contingent fees, and limitations on punitive damages (including the prohibition of pleading such damages initially).

Politico (http://www.politico.com/news/stories/0312/73957.html) reports that the IPAB bill was expected to go to the floor of the House for a vote later this month, but now “[i]It’s unclear exactly how Republicans plan to move the two bills, but both should clear the House relatively easily.”

PM

BP Oil Spill Settlement

A settlement has been reached in the Gulf Oil Spill Litigation, which was set to begin trial in Louisiana federal court on Monday. Story from the New Orleans Times-Picayune here.

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More Kiobel Coverage

Lots of coverage on Kiobel v. Royal Dutch Petroleum, which is being argued today:

• Kenneth Anderson (Volokh Conspiracy)
• Lyle Denniston (SCOTUSblog)
• Jonathan Hafetz (ABA Preview)
• Julian Ku (Point of Law)
• Juan Mendez (Opinio Juris)
• David Savage (Los Angeles Times)
• Nina Totenberg (NPR)
• Peter Weiss (New York Times)
• David Weissbrodt (Point of Law)
• Stephen Wermiel (SCOTUSblog)

One issue that isn’t squarely raised by the questions presented is whether the Alien Tort Statute applies to claims brought by one alien against another (as in Kiobel). Amanda Frost’s Academic Round-up for SCOTUSblog covers an essay by Anthony Bellia and Bradford Clark, which argues that the Alien Tort Statute applies only to claims brought by an alien against a U.S. citizen. Marco Simons has a response on Concurring Opinions.

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Preview of Tomorrow's Oral Arguments in Kiobel & Mohamad

Now available from the ABA is a preview by Prof. Jonathan Hafetz (Seton Hall) of Kiobel v. Royal Dutch Petroleum and Mohamad v. Palestinian Authority. At issue in these cases (as covered earlier here) is whether corporations, organizations, and other defendants that are not natural persons may be sued under either the Alien Tort Statute or the Torture Victim Protection Act. They will be argued in tandem tomorrow.

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BP Oil Spill Trial Delayed

The first phase of the trial was supposed to begin tomorrow before Judge Carl Barbier of the U.S. District Court for the Eastern District of Louisiana. It's been delayed until March 5. Story by Rebecca Mowbray of the Times-Picayune here.

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AALS Approves Four New Member Schools

The Association of American Law Schools has approved as new members Drexel University Earl Mack School of Law, North Carolina Central University School of Law, Texas Wesleyan University School of Law, and University of St. Thomas School of Law (Minneapolis).

The story is in the National Law Journal here.

PM

Whales as Plaintiffs?

People for the Ethical Treatment of Animals (PETA) is reportedly filing a lawsuit today in federal district court in San Diego against SeaWorld, seeking a declaration that the five killer whales that perform at SeaWorld's San Diego and Orlando parks are being held as slaves in violation of the Thirteenth Amendment to the United States Constitution. 

The five plaintiffs are anticipated to be Corky, Kasatka, Ulises, Tilikum, and Katina.

For further details see the story at Signonsandiego.com here.

--PHM

Two SCOTUS Cert Grants of Interest

Today, the Supreme Court granted cert in two cases that should be of interest to civ pro and fed courts profs.

Kiobel v. Royal Dutch Petroleum, No. 10-1491, to be argued with Mohammad v. Rajoub, No. 11-88. In the ruling below in Kiobel, residents of Nigeria brought claims under the Alien Tort Statute against corporations (as opposed to individuals within those corporations) that allegedly aided and abetted the Nigerian government in committing human rights abuses directed at the plaintiffs, and the appeals court held their claims fell outside the limited jurisdiction provided by the Alien Tort Statute and had to be dismissed for lack of subject matter jurisdiction. In Mohammed, the court below held that only a natural person is amenable to suit under the Torture Victim Protection Act, and the sons and widow of a decedent allegedly tortured and killed by the Palestinian Authority and the Palestine Liberation Organization could not sue the PA and the PLO under the TVPA. The petitions for review asked whether the issue of corporate civil tort liability under the Alien Tort Statute is a merits question or an issue of subject matter jurisdiction, and whether corporations are immune from tort liability for violations of the law of nations such as torture, extrajudicial executions, or genocide.

SCOTUSblog info is here.

Elgin v. Dept. of Treasury, No. 11-45. Do federal district courts have jurisdiction over constitutional claims for equitable relief brought by federal employees, or does the Civil Service Reform Act impliedly preclude that jurisdiction?

SCOTUSblog info is here.

RJE

 

Decision of Interest on Standing: Second Circuit Denies En Banc Review in Amnesty Int'l v. Clapper

We covered earlier the Second Circuit’s decision in Amnesty International v. Clapper, 638 F.3d 118 (2d Cir. 2011), which held that the plaintiffs -- various attorneys, journalists, and labor, legal, media, and human rights organizations -- had standing to challenge federal wiretapping procedures.

Yesterday the full Second Circuit refused to rehear the case, evenly dividing in a 6-6 vote. The order denying rehearing was accompanied by five separate opinions.

For additional coverage see N.Y. Times (Eric Lichtblau) and Volokh Conspiracy (Orin Kerr).

--A

The continuing saga of Senator Grassley's criticism of the ABA

The National Law Journal has an article here.

--Patricia Hatamyar Moore

Be Careful What You Wish For? AT&T Seeks To Block Arbitrations

Four months ago, AT&T won a closely-watched Supreme Court case involving mandatory arbitration provisions that forbid classwide arbitration proceedings. The Court in AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011), held that the Federal Arbitration Act compelled enforcement of a contract that required “arbitration of all disputes between the parties, but required that claims be brought in the parties’ ‘individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding.’” Id. at 1744.

In light of Concepcion, AT&T customers wishing to challenge AT&T’s pending merger with T-Mobile on antitrust grounds have done so via individual demands for arbitration. AT&T has now filed multiple lawsuits in federal court seeking to enjoin those arbitrations. AT&T’s argument seems to be that these arbitrations are really classwide arbitrations (and hence forbidden under the arbitration agreement) even though each arbitration demand is initiated separately by an individual customer.

AT&T’s complaint in one of its recent lawsuits [AT&T Mobility LLC v. Gonnello, 11-CV-5636 (S.D.N.Y.)] puts it this way: “Although styled as a request for arbitration on an individual basis, each Demand is actually a representative action.” [¶ 33]. In particular, each customer seeks “an injunction flatly prohibiting the merger or, alternatively, imposing global restrictions on the merger.” [¶ 34]. Thus, “the relief sought by each [customer] bears all of the characteristics of a representative action: it would affect a broad class . . . and even if just one of the [customers] prevails, the interest of the entire class would be affected.” [¶ 36].

For recent coverage see:

• ABA Journal (After Supreme Court Win Forcing Customers to Arbitrate, AT&T Now Sues to Stop the Arbitration)
• Reuters (AT&T sues customers seeking to block T-Mobile deal)

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Class Actions Alleging Inflated Employment Data Filed Against Two Law Schools

Over at TaxProf Blog, Paul Caron (Cincinnati) reports on two class action lawsuits that were filed today against New York Law School and Thomas M. Cooley Law School. Here are links to the complaints in Gomez-Jiminez v. New York Law School and MacDonald v. Thomas M. Cooley Law School.

If you’re wondering about subject-matter jurisdiction and the Class Action Fairness Act (CAFA), you’re not alone. The Cooley class action was filed in U.S. District Court for the Western District of Michigan and invokes CAFA diversity jurisdiction [28 U.S.C. § 1332(d)(2)]. The NYLS class action was filed in New York state court (in Manhattan), and the first paragraph of the complaint preemptively addresses the possibility of CAFA removal with an allegation that seems geared toward CAFA’s local-controversy and/or home-state exceptions [See 28 U.S.C. § 1332(d)(4)]. The complaint states: “Upon information and belief, more than two-thirds of all members of the putative class, at all material times relevant to the allegations of this Complaint, were residents of the State of New York and are current or former students of Defendant New York Law School.”

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Do Your Students Think Discovery Is Boring?

From Elie Mystal (Above The Law) comes the story Beverly Hills Brawl: Escape From The Deposition Room! It begins:

Have you ever been to a deposition that got physical? Maybe some fisticuffs, or a little shoving? No? Well, obviously you’ve been hanging out in the wrong conference rooms. A complaint filed in Santa Monica Superior Court and reported on by Courthouse News Service accuses a Drinker Biddle partner of “robust, unlawful force” that resulted in opposing counsel breaking his wrist.

The story includes excerpts from the deposition transcript as well.

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Senator Grassley Asks the ABA to Answer 31 Detailed Questions By July 25

            Chuck Grassley (R-Iowa), Ranking Member of the Judiciary Committee, sent a letter on July 11 to ABA President Stephen Zack “to express concern after reading a June 9, 2011 article in The Chronicle of Higher Education that reported that the American Bar Association (ABA) 'was found to be out of compliance with 17 regulations, including the need to consider student-loan default rates in assessing programs.'”  He continued: 

My concern is that the ABA, which has the power to accredit law schools, was barely granted renewed recognition by the U.S. Department of Education’s accreditation experts. Moreover, in the eyes of the National Advisory Committee on Institutional Quality and Integrity, the ABA appears to be doing little to assess student-loan default rates in its law school accreditation process. 

The New York Times also addressed similar issues in an April 30, 2011 article regarding what many law students interviewed by the New York Times referred to as a “bait and switch” practice regarding merit-based scholarships.  According to the New York Times, ABA accredited law schools “offer more scholarships than [they] plan to renew[.]”  One result of this practice is that many law students lose their merit-based scholarships after their first year because they failed to maintain a certain grade-point average.  The New York Times articles raised concerns that some schools appear to set their grading curves in a manner which results in a large number of students losing their merit-based scholarships.

(Footnotes omitted.)

            Senator Grassley then requested that the ABA provide written answers to 31 questions by July 25, 2011.  The questions relate mainly to student financial issues such as student scholarships, loan repayment education programs, and programs to prevent default on student loans.            

            Some of the questions, though, relate to the number of law schools that the ABA has accredited in the last 20 years, as well as the qualifications of the accreditation committee members. 

            Another article about Senator Grassley’s letter appears in the National Law Journal today.

--PHM

Toyota Shareholder Judge Declines to Exercise Supplemental Jurisdiction

In the Toyota shareholder litigation, the plaintiffs have had trouble maintaining a sizable lawsuit in federal court.  Last year, the Supreme Court ruled that plaintiffs do not have standing to bring federal securities law claims for shares that were bought on a foreign exchange.  (Morrison v. National Australia Bank).  The Toyota plaintiffs responded to this development by amending their complaint to add claims under Japanese law.  The district judge hearing the case, however, declined to exercise supplemental jurisdiction to hear these claims because they would "substantially predominate" over the remaining federal claims in the case.

The National Law Journal has further coverage here.

RJE

NYTimes Reports on NY Judicial Salary Freeze

The New York Times has an article on the judicial salary freeze in New York, reporting that many judges are leaving the bench in favor of private practice.

RJE

Could Wal-Mart Extend Beyond Class Actions?

Like Adam, I have also gotten into the Op-Ed game for Wal-Mart commentary.  My Op-Ed appears in today's National Law Journal and explores the ways in which the 23(a)(2) analysis might leak into interpretations of the common question language found in other Federal Rules.

RJE

Why Wal-Mart Was Wrong, And Why It Matters

Here’s my Op-Ed about Wal-Mart Stores, Inc. v. Dukes. It appears in the Sunday Opinion section of the Bergen County (N.J.) Record.

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NY Times Discussion on Wal-Mart v. Dukes

Yesterday’s New York Times contains a discussion entitled A Death Blow to Class Action?, with contributions by: 

• Suzette Malveaux
• Matthew Bodie
• Ralph Richard Banks
• John Elwood
• Tanya Hernandez
• Richard Primus
• Melissa Hart

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