Friday, September 7, 2012
The ABA Journal reports that "a lawyer who opposes the Justice Department’s proposed antitrust settlement with three publishers of e-books has filed an amicus brief (PDF) in the form of a comic strip."
After U.S. District Judge Denise Cote of Manhattan limited his brief to five pages, lawyer Bob Kohn conceived of the “graphic novelette” and says it complies with court rules requiring 12-point or larger type and one-inch margins. Although Publishers Weekly called the brief "brilliant," it apparently failed to persuade Judge Cote, who approved the settlement.
Thursday, August 23, 2012
Last week the U.S. Court of Appeals for the Second Circuit granted Google’s Rule 23(f) petition to appeal the district court’s order certifying the Google Books class action [Authors Guild v. Google, Inc., __ F. Supp. 2d __, 2012 WL 1951790 (S.D.N.Y. May 31, 2012)]. Here’s the full text of the Second Circuit’s order:
Petitioner, through counsel, moves, pursuant to Federal Rule of Civil Procedure 23(f), for leave to appeal the district court’s order granting Respondents’ motion for class certification. Upon due consideration, it is hereby ORDERED that the petition is GRANTED. See Sumitomo Copper Litig. v. Credit Lyonnais Rouse, Ltd., 262 F.3d 134, 139-40 (2d Cir. 2001).
The Second Circuit docket number is 12-2402.
Interestingly, Judge Denny Chin was an original member of the appellate panel that considered Google’s 23(f) petition (along with Judges Richard Wesley and Peter Hall). Because Judge Chin was the judge who granted class certification at the trial level, he recused himself.
Tuesday, June 19, 2012
According to this press release:
Tomorrow, Wednesday, June 20—the one year anniversary of the Supreme Court’s decision in Dukes v. Wal-Mart—Senator Richard Blumenthal (D-CT), Congresswoman Rosa DeLauro (D-CT) and Senator Al Franken (D-MN) will hold a press conference in the Capitol Visitors Center, Room SVC 212 at 2:15 pm, to announce that they are introducing legislation to restore the workers’ rights that were eroded by the Dukes decision. . . . The bill, called the Equal Employment Opportunity Restoration Act, would allow workers to hold employers accountable in cases of workplace discrimination by ensuring that employees can once again band together to challenge discriminatory employment practices.
Saturday, June 9, 2012
Prof. Linda Mullenix (Texas) has a piece in the National Law Journal entitled A year after 'Wal-Mart,' class actions not dead yet. It begins:
As the first anniversary of the U.S. Supreme Court's June 20, 2011, landmark class action decision in Wal-Mart Stores Inc. v. Dukes, 131 S. Ct. 2541, approaches, a smattering of federal district court decisions suggest that judges are carefully parsing that opinion and still certifying class actions. Although it is far too early to project any definitive assessments, some melodramatic pronouncements of the death of class litigation in Dukes' wake seem premature.
Wednesday, May 16, 2012
Today the U.S. District Court for the Southern District of New York granted class certification in a lawsuit challenging the NYPD’s stop-and-frisk program. The class is defined as “[a]ll persons who since January 31, 2005 have been, or in the future will be, subjected to the New York Police Department’s policies and/or widespread customs or practices of stopping, or stopping and frisking, persons in the absence of a reasonable, articulable suspicion that criminal activity has taken, is taking, or is about to take place in violation of the Fourth Amendment, including persons stopped or stopped and frisked on the basis of being Black or Latino in violation of the Equal Protection Clause of the Fourteenth Amendment.”
Judge Shira Scheindlin’s 56-page opinion addresses several aspects of the Supreme Court’s recent decision in Wal-Mart Stores, Inc. v. Dukes, noting that “even after Wal-Mart, Rule 23(b)(2) suits remain appropriate mechanisms for obtaining injunctive relief in cases where a centralized policy is alleged to impact a large class of plaintiffs, even when the magnitude (and existence) of the impact may vary by class member” and that “[s]ince Wal-Mart, at least three district courts have granted class certification in cases alleging Fourth and Fourteenth Amendment violations due to a police department’s policy and/or practice of making unlawful stops and arrests; all of these courts have rejected the notion that the individual circumstances of a stop defeat commonality.” She also writes (footnotes omitted):
Plaintiffs allege that their Fourth and Fourteenth Amendment rights are violated as a result of the NYPD’s policies and practices. As they argue, these claims raise “central and core questions of fact and law that, when answered, will resolve all class members’ Monell claims against the City.” In the terminology of Wal-Mart, a class wide proceeding here will “generate common answers” to these questions that are “apt to drive the resolution of the litigation.”
For additional coverage, check out WNYC.org (Ailsa Chang).
Friday, May 4, 2012
The story is reported by the National Law Journal here. The link to the Oil Spill litigation web site, which contains additional links to the court's actual orders regarding the preliminary approval, is here.
Class members have until August 31 to object and until October 1 to opt out. The final fairness hearing is set for November 8.
Wednesday, April 25, 2012
The National Law Journal reports that the Consumer Financial Protection Bureau, as authorized by the Dodd-Frank Act, is studying pre-dispute arbitration clauses in consumer contracts. In connection with that, the Bureau has published a Request for Information Regarding Scope, Methods, and Data Sources for Confucting Study of Pre-dispute Arbitration Agreements. Comments are due June 23, 2012.
Friday, April 20, 2012
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).
(Hat Tip: Linda Silberman)
Friday, March 16, 2012
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
(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.”
Saturday, March 3, 2012
Tuesday, February 28, 2012
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.
Monday, February 27, 2012
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.
Sunday, February 26, 2012
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.
Saturday, January 7, 2012
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.
Wednesday, October 26, 2011
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.
Monday, October 17, 2011
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.
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?
Thursday, September 22, 2011
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.
Thursday, September 1, 2011
Friday, August 19, 2011
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)
Wednesday, August 10, 2011
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.”