Friday, August 10, 2018

SDNY authorizes service on Wikileaks via Twitter

Today Wikileaks was served via Twitter, pursuant to FRCP 4(f)(3), in Democratic National Committee v. The Russian Federation et al., No. 18-cv-3501 (SDNY).

Here's the tweet effecting service:

https://twitter.com/ProcessServiceC/status/1027960972504457217

Here's the court's order (from earlier this week) authorizing service via Twitter:

Download Handwritten Order

Here's the plaintiff's motion:

Download Motion

 

 

 

 

 

 

 

August 10, 2018 in Federal Rules of Civil Procedure, Recent Decisions | Permalink | Comments (0)

Wednesday, August 8, 2018

Interesting Ninth Circuit Decision: Rodriguez v. Swartz

Yesterday the Ninth Circuit issued its decision in Rodriguez v. Swartz. It’s a particularly interesting case in light of the Supreme Court’s recent decisions in Ziglar v. Abbasi and Hernandez v. Mesa.

By a 2-1 vote, the panel affirmed the district court’s refusal to dismiss a claim against a U.S. Border Patrol agent who, while standing on American soil, shot and killed a teenage Mexican citizen who was walking down a street in Mexico. (In the interest of full disclosure, I joined an amicus brief on behalf of law professors in support of the plaintiff-appellee.)

Judge Andrew Kleinfeld’s majority opinion concludes:

Under the particular set of facts alleged in this case, Swartz is not entitled to qualified immunity. The Fourth Amendment applies here. No reasonable officer could have thought that he could shoot J.A. dead if, as pleaded, J.A. was innocently walking down a street in Mexico. And despite our reluctance to extend Bivens, we do so here: no other adequate remedy is available, there is no reason to infer that Congress deliberately chose to withhold a remedy, and the asserted special factors either do not apply or counsel in favor of extending Bivens.

Of course, the facts as pleaded may turn out to be unsupported. When all of the facts have been exposed, the shooting may turn out to have been excusable or justified. There is and can be no general rule against the use of deadly force by Border Patrol agents. But in the procedural context of this case, we must take the facts as alleged in the complaint. Those allegations entitle J.A.’s mother to proceed with her case.

Judge Milan Smith dissented, arguing that no Bivens action was available.

 

 

August 8, 2018 in Federal Courts, Recent Decisions | Permalink | Comments (0)

Friday, July 27, 2018

Ninth Circuit grants en banc review in important class action case

Earlier this year the Ninth Circuit issued a 2-1 decision in In re Hyundai and Kia Fuel Economy Litigation. The panel reversed the district court’s certification of a settlement class involving claims against Hyundai and Kia over their vehicles’ fuel efficiency. The decision was particularly controversial because of the majority’s choice-of-law analysis and its potential impact on certifying nationwide classes.

Today the full Ninth Circuit granted en banc rehearing.

Download Hyundai En Banc Order (9th Cir)

Oral argument is scheduled for the week of September 24, 2018.

 

 

July 27, 2018 in Class Actions, Federal Rules of Civil Procedure, Recent Decisions | Permalink | Comments (0)

Thursday, July 26, 2018

SDNY rules on motions to dismiss cases challenging addition of a citizenship status question to 2020 census

Today U.S. District Judge Jesse Furman (S.D.N.Y.) issued an opinion and order granting in part and denying in part the defendants’ motion to dismiss two related cases, New York v. United States Department of Commerce and New York Immigration Coalition v. United States Department of Commerce. The plaintiffs in these cases are challenging—on a number of grounds—Commerce Secretary Wilbur Ross’s decision to reinstate a question on citizenship status for the 2020 census. The upshot, as the court summarizes is this:

Plaintiffs’ claims under the Enumeration Clause — which turn on Secretary Ross’s power rather than his purposes — must be and are dismissed. By contrast, their claims under the APA (which Defendants seek to dismiss solely on jurisdictional and justiciability grounds) and the Due Process Clause — which turn at least in part on Secretary Ross’s purposes and not merely on his power — may proceed.

In reaching this conclusion, the opinion covers a number of interesting issues, including Article III standing, the political question doctrine, and whether the plaintiffs plausibly alleged discriminatory animus for purposes of their equal protection claim under the Due Process Clause.

Download SDNY Opinion and Order 07-26-2018

 

 

 

July 26, 2018 in Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Standing, Subject Matter Jurisdiction, Twombly/Iqbal | Permalink | Comments (0)

Yesterday’s Eleventh Circuit Decision in Lewis v. Governor of Alabama

In Lewis v. Governor of Alabama, the Eleventh Circuit reversed the district court’s dismissal of an equal protection challenge to a 2016 Alabama statute that nullified a Birmingham city ordinance raising the minimum wage to $10.10. Here’s the introductory paragraph:

For a single day in February 2016, Marnika Lewis and Antoin Adams secured a pay raise. The Mayor of Birmingham, Alabama, William Bell, had just affixed his signature to Birmingham Ordinance No. 16-28, which guaranteed Lewis, Adams, and all other wage earners in the city $10.10 per hour. But the following afternoon, Alabama Governor Robert Bentley signed the Minimum Wage and Right-to-Work Act (The Minimum Wage Act or the Act) into law. The Minimum Wage Act nullified Birmingham Ordinance No. 16-28, preempted all local labor and employment regulation, and mandated a uniform minimum wage throughout Alabama—which, then and now, sits at $7.25 per hour. At the heart of this appeal is whether Lewis and Adams have stated a plausible claim that the Minimum Wage Act had the purpose and effect of discriminating against Birmingham’s black citizens, in violation of the Equal Protection Clause of the Fourteenth Amendment. Because they have, we reverse the dismissal of that claim. We affirm the dismissal of all other claims.

The opinion addresses standing, sovereign immunity, and pleading standards. As to pleading, the court concludes:

Here, a sensitive but thorough examination of the plaintiffs’ detailed allegations leads us to conclude that they have plausibly alleged a discriminatory motivation behind the Minimum Wage Act, despite the law’s neutrality and rationale. This is all that is required for their claim to survive a motion to dismiss.

 

 

 

July 26, 2018 in Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Subject Matter Jurisdiction, Twombly/Iqbal | Permalink | Comments (0)

Wednesday, July 18, 2018

Sixth Circuit weighs in on FRCP 23(c)(4) issue classes

This week the Sixth Circuit decided Martin v. Behr Dayton Thermal Products, affirming the district court’s decision to certify various issues for class treatment under Rule 23(c)(4). The court sided with what it called “the broad view” of the relationship between Rule 23(b)(3)’s requirements and issue class actions under Rule 23(c)(4). From Judge Stranch’s opinion:

Under what is known as the broad view, courts apply the Rule 23(b)(3) predominance and superiority prongs after common issues have been identified for class treatment under Rule 23(c)(4). The broad view permits utilizing Rule 23(c)(4) even where predominance has not been satisfied for the cause of action as a whole.

After reviewing the circuit split over this question, the opinion concludes:

In sum, Rule 23(c)(4) contemplates using issue certification to retain a case’s class character where common questions predominate within certain issues and where class treatment of those issues is the superior method of resolution. See Nassau, 461 F.3d at 226; Fed. R. Civ. P. 23(c)(4) adv. comm. n. to 1966 amend. A requirement that predominance must first be satisfied for the entire cause of action would undercut the purpose of Rule 23(c)(4) and nullify its intended benefits. The broad approach is the proper reading of Rule 23, in light of the goals of that rule.

 

 

 

July 18, 2018 in Class Actions, Federal Rules of Civil Procedure, Recent Decisions | Permalink | Comments (0)

Friday, June 29, 2018

SCOTUS Cert Grant in Franchise Tax Board of California v. Hyatt III

It may have been lost in all of the news surrounding Justice Kennedy’s retirement, but yesterday the Supreme Court granted certiorari in Franchise Tax Board of California v. Hyatt, which presents the question:

“Whether Nevada v. Hall, 440 U.S. 410 (1979), which permits a sovereign state to be haled into another state’s courts without its consent, should be overruled.”

This is the case’s third trip to the Supreme Court.

You can follow the merits briefs as they come in at SCOTUSblog and at the Supreme Court’s website.

 

 

 

June 29, 2018 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Tuesday, June 26, 2018

Some Interesting SCOTUS Cert Grants

Yesterday’s Supreme Court order list included grants of certiorari in several cases, including these three:

Sudan v. Harrison presents the question:

Whether the Second Circuit erred by holding — in direct conflict with the D.C., Fifth, and Seventh Circuits and in the face of an amicus brief from the United States — that plaintiffs suing a foreign state under the Foreign Sovereign Immunities Act may serve the foreign state under 28 U.S.C § 1608(a)(3) by mail addressed and dispatched to the head of the foreign state’s ministry of foreign affairs “via” or in “care of” the foreign state’s diplomatic mission in the United States, despite U.S. obligations under the Vienna Convention on Diplomatic Relations to preserve mission inviolability.

[You can follow the Sudan merits briefs as they come in at SCOTUSblog and at the Supreme Court website.]

Nutraceutical Corp. v. Lambert presents the question:

Federal Rule of Civil Procedure 23(f) establishes a fourteen-day deadline to file a petition for permission to appeal an order granting or denying class-action certification. On numerous occasions, this Court left undecided whether mandatory claim-processing rules, like Rule 23(f), are subject to equitable exceptions, because the issue was not raised below. See, e.g., Hamer v. Neighborhood Hous. Serv. of Chicago, 138 S. Ct. 13, 18 n.3, 22 (2017). That obstacle is not present here. The question presented is: did the Ninth Circuit err by holding that equitable exceptions apply to mandatory claim-processing rules and excusing a party’s failure to timely file a petition for permission to appeal, or a motion for reconsideration, within the Rule 23(f) deadline? As the Ninth Circuit acknowledged below, its decision conflicts with other United States Circuit Courts of Appeals that have considered this issue (the Second, Third, Fourth, Fifth, Seventh, Tenth, and Eleventh Circuits).

The question presented is: did the Ninth Circuit err by holding that equitable exceptions apply to mandatory claim-processing rules and excusing a party’s failure to timely file a petition for permission to appeal, or a motion for reconsideration, within the Rule 23(f) deadline?

[You can follow the Neutraceutical merits briefs as they come in at SCOTUSblog and at the Supreme Court website.]

And Henry Schein, Inc. v. Archer and White Sales, Inc. presents the question:

Whether the Federal Arbitration Act permits a court to decline to enforce an agreement delegating questions of arbitrability to an arbitrator if the court concludes the claim of arbitrability is “wholly groundless.”

[You can follow the Henry Schein merits briefs as they come in at SCOTUSblog and at the Supreme Court website.]

 

 

 

 

 

June 26, 2018 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, International/Comparative Law, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Monday, June 11, 2018

SCOTUS decision in China Agritech v. Resh: American Pipe tolling and subsequent class actions

Today the Supreme Court issued its decision in China Agritech, Inc. v. Resh (covered earlier here). Justice Ginsburg authored the Court’s opinion, which was joined by Chief Justice Roberts and Justices Kennedy, Thomas, Breyer, Alito, Kagan and Gorsuch. From the introduction:

This case concerns the tolling rule first stated in American Pipe & Constr. Co. v. Utah, 414 U. S. 538 (1974). The Court held in American Pipe that the timely filing of a class action tolls the applicable statute of limitations for all persons encompassed by the class complaint. Where class-action status has been denied, the Court further ruled, members of the failed class could timely intervene as individual plaintiffs in the still-pending action, shorn of its class character. See id., at 544, 552–553. Later, in Crown, Cork & Seal Co. v. Parker, 462 U. S. 345 (1983), the Court clarified American Pipe’s tolling rule: The rule is not dependent on intervening in or joining an existing suit; it applies as well to putative class members who, after denial of class certification, “prefer to bring an individual suit rather than intervene . . . once the economies of a class action [are] no longer available.” 462 U. S., at 350, 353–354 * * * .

The question presented in the case now before us: Upon denial of class certification, may a putative class member, in lieu of promptly joining an existing suit or promptly filing an individual action, commence a class action anew beyond the time allowed by the applicable statute of limi­tations? Our answer is no. American Pipe tolls the stat­ute of limitations during the pendency of a putative class action, allowing unnamed class members to join the action individually or file individual claims if the class fails. But American Pipe does not permit the maintenance of a follow-on class action past expiration of the statute of limitations.

The opinion concludes:

The watchwords of American Pipe are efficiency and economy of litigation, a principal purpose of Rule 23 as well. Extending American Pipe tolling to successive class actions does not serve that purpose. The contrary rule, allowing no tolling for out-of-time class actions, will propel putative class representatives to file suit well within the limitation period and seek certification promptly. For all the above-stated reasons, it is the rule we adopt today: Time to file a class action falls outside the bounds of Amer­ican Pipe.

Justice Sotomayor wrote a concurring opinion, which begins:

I agree with the Court that in cases governed by the Private Securities Litigation Reform Act of 1995 (PSLRA),15 U. S. C. §78u–4, like this one, a plaintiff who seeks to bring a successive class action may not rely on the tolling rule established by American Pipe & Constr. Co. v. Utah, 414 U. S. 538 (1974). I cannot, however, join the majority in going further by holding that the same is true for class actions not subject to the PSLRA.

 

 

 

 

June 11, 2018 in Class Actions, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Monday, June 4, 2018

SCOTUS Decision in Hughes v. United States: No Guidance on the Marks Rule

Today the Supreme Court issued a 6-3 decision in Hughes v. United States (covered earlier here and here). The dispute between the litigants involved the defendant’s eligibility to seek a sentence reduction based on a retroactive lowering of the sentencing guidelines. Two of the three questions presented in the defendant’s cert petition, however, involved how to determine the precedential effect of Supreme Court decisions with no majority opinion—an inquiry that is typically assessed using the rule from Marks v. United States. Marks played an important role in Hughes because the key Supreme Court decision on the substantive sentencing question—Freeman v. United States—was a 4-1-4 split.

In today’s Hughes opinion, the Court declined to address broader Marks-related issues. From Justice Kennedy’s majority opinion:

To resolve these differences over the proper application of Marks and the proper interpretation of §3582(c)(2), the Court granted certiorari in the present case. 583 U. S. ___ (2017). The first two questions, relating to Marks, are as follows: (1) “Whether this Court’s decision in Marks means that the concurring opinion in a 4–1–4 decision represents the holding of the Court where neither the plurality’s reasoning nor the concurrence’s reasoning is a logical subset of the other”; and (2) “Whether, under Marks, the lower courts are bound by the four-Justice plurality opinion in Freeman, or, instead, by Justice Sotomayor’s separate concurring opinion with which all eight other Justices disagreed.” Pet. for Cert. i.

The third question is directed to the underlying statutory issue in this case, the substantive, sentencing issue the Court discussed in the three opinions issued in Freeman. That question is: “Whether, as the four-Justice plurality in Freeman concluded, a defendant who enters into a Fed. R. Crim. P. 11(c)(1)(C) plea agreement is generally eligible for a sentence reduction if there is a later, retroactive amendment to the relevant Sentencing Guidelines range.” Pet. for Cert. ii.

Taking instruction from the cases decided in the wake of Freeman and the systemic concerns that have arisen in some Circuits, and considering as well the arguments of the parties as to question three, a majority of the Court in the instant case now can resolve the sentencing issue on its merits. So it will be unnecessary to consider questions one and two despite the extensive briefing and careful argument the parties presented to the Court concerning the proper application of Marks. The opinion that follows resolves the sentencing issue in this case; and, as well, it should give the necessary guidance to federal district courts and to the courts of appeals with respect to plea agreements of the kind presented here and in Freeman.

As to the substantive sentencing question in Hughes, Justice Kennedy writes:

To resolve the uncertainty that resulted from this Court’s divided decision in Freeman, the Court now holds that a sentence imposed pursuant to a Type-C agreement is “based on” the defendant’s Guidelines range so long as that range was part of the framework the district court relied on in imposing the sentence or accepting the agreement.

Justice Sotomayor writes a concurring opinion, and Chief Justice Roberts writes a dissenting opinion joined by Justices Thomas and Alito.

 

 

 

June 4, 2018 in Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Monday, May 28, 2018

SCOTUS Decision in Epic Systems: Class Action Waivers in Employer-Employee Arbitration Agreements

Last week the Supreme Court issued a 5-4 decision in Epic Systems Corp. v. Lewis. Justice Gorsuch wrote the majority opinion, joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Alito. It begins:

Should employees and employers be allowed to agree that any disputes between them will be resolved through one-on-one arbitration? Or should employees always be permitted to bring their claims in class or collective actions, no matter what they agreed with their employers?

As a matter of policy these questions are surely debatable. But as a matter of law the answer is clear. In the Federal Arbitration Act, Congress has instructed federal courts to enforce arbitration agreements according to their terms—including terms providing for individualized proceedings. Nor can we agree with the employees’ suggestion that the National Labor Relations Act (NLRA) offers a conflicting command. It is this Court’s duty to interpret Congress’s statutes as a harmonious whole rather than at war with one another. And abiding that duty here leads to an unmistakable conclusion. The NLRA secures to employees rights to organize unions and bargain collectively, but it says nothing about how judges and arbitrators must try legal disputes that leave the workplace and enter the courtroom or arbitral forum. 

Justice Ginsburg wrote a dissenting opinion, joined by Justices Breyer, Sotomayor, and Kagan. Here’s an excerpt from her introductory section:

Does the Federal Arbitration Act (Arbitration Act or FAA), 9 U. S. C. §1 et seq., permit employers to insist that their employees, whenever seeking redress for commonly experienced wage loss, go it alone, never mind the right secured to employees by the National Labor Relations Act (NLRA), 29 U. S. C. §151 et seq., “to engage in . . . concerted activities” for their “mutual aid or protection”? §157. The answer should be a resounding “No.”

In the NLRA and its forerunner, the Norris-LaGuardia Act (NLGA), 29 U. S. C. §101 et seq., Congress acted on an acute awareness: For workers striving to gain from their employers decent terms and conditions of employment, there is strength in numbers. A single employee, Congress understood, is disarmed in dealing with an employer. See NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 33–34 (1937). The Court today subordinates employee-protective labor legislation to the Arbitration Act. In so doing, the Court forgets the labor market imbalance that gave rise to the NLGA and the NLRA, and ignores the destructive consequences of diminishing the right of employees “to band together in confronting an employer.” NLRB v. City Disposal Systems, Inc., 465 U. S. 822, 835 (1984).

 

 

 

May 28, 2018 in Class Actions, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Monday, May 21, 2018

SCOTUS Grants Cert in Jam v. International Finance Corporation: Immunity for International Organizations

Today the Supreme Court granted certiorari in Jam v. International Finance Corp., limited to the following question:

Whether the International Organizations Immunities Act—which affords international organizations the “same immunity” from suit that foreign governments have, 22 U.S.C. § 288a(b)— confers the same immunity on such organizations as foreign governments have under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602-11.

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog and at the newly e-friendly Supreme Court website.

May 21, 2018 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Monday, May 14, 2018

SCOTUS Decision on Mootness: United States v. Sanchez-Gomez

Today the Supreme Court issued a unanimous decision in United States v. Sanchez-Gomez, covered earlier here. The opinion, by Chief Justice Roberts, begins:

Four criminal defendants objected to being bound by full restraints during pretrial proceedings in their cases, but the District Court denied relief. On appeal, the Court of Appeals for the Ninth Circuit held that the use of such restraints was unconstitutional, even though each of the four criminal cases had ended prior to its decision. The question presented is whether the appeals were saved from mootness either because the defendants sought “class-like relief” in a “functional class action,” or because the challenged practice was “capable of repetition, yet evading review.”

The Court rejected both theories and found that the case was moot. In conclusion, however, Chief Justice Roberts observed:

None of this is to say that those who wish to challenge the use of full physical restraints in the Southern District lack any avenue for relief. In the course of this litigation the parties have touched upon several possible options. See, e.g., Tr. of Oral Arg. 12 (indicating circumstances under which detainees could bring a civil suit). Because we hold this case moot, we take no position on the question.

 

 

May 14, 2018 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Tuesday, May 8, 2018

Ninth Circuit Decision in United States v. County of Maricopa: Joe Arpaio, Policymaker Liability & Issue Preclusion

Yesterday the Ninth Circuit issued a unanimous decision in United States v. County of Maricopa. The opinion begins:

The United States brought this action to halt racially discriminatory policing policies instituted by Joseph Arpaio, the former Sheriff of Maricopa County, Arizona. Under Arpaio’s leadership, the Maricopa County Sheriff’s Office (MCSO) routinely targeted Latino drivers and passengers for pretextual traffic stops aimed at detecting violations of federal immigration law. Based on that and other unlawful conduct, the United States sued Arpaio, MCSO, and the County of Maricopa under two statutes: Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and 34 U.S.C. § 12601 (formerly codified at 42 U.S.C. § 14141). The district court granted summary judgment in favor of the United States on the claims relating to the unlawful traffic stops; the parties settled the remaining claims. Maricopa County is the lone appellant here. Its main contention is that it cannot be held liable for the unlawful traffic-stop policies implemented by Arpaio.

The panel’s decision affirms the district court’s ruling. It concludes that: (1) Arpaio was a final policymaker for the county; (2) policymaker liability applies under Title VI and § 12601; and (3) the county is bound as a matter of issue preclusion by the findings in the earlier litigation against Arpaio.

 

 

 

May 8, 2018 in Federal Courts, Recent Decisions | Permalink | Comments (0)

Monday, April 30, 2018

SCOTUS Cert Grant on Interpreting Arbitration Agreements to Authorize Class Arbitration

Today the Supreme Court granted certiorari in Lamps Plus, Inc. v. Varela, which presents the question:

Whether the Federal Arbitration Act forecloses a state-law interpretation of an arbitration agreement that would authorize class arbitration based solely on general language commonly used in arbitration agreements.

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog and at the newly e-friendly Supreme Court website.

 

 

April 30, 2018 in Class Actions, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

SCOTUS Cert Grant on Cy Pres Class Action Awards

Today the Supreme Court granted certiorari in Frank v. Gaos, which presents the question:

Whether, or in what circumstances, a cy pres award of class action proceeds that provides no direct relief to class members supports class certification and comports with the requirement that a settlement binding class members must be “fair, reasonable, and adequate.”

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog and at the newly e-friendly Supreme Court website.

 

 

April 30, 2018 in Class Actions, Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Wednesday, April 25, 2018

SCOTUS Decision in Oil States Energy Services v. Greene’s Energy Group

Yesterday the Supreme Court issued a 7-2 decision in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, covered earlier here. Justice Thomas’s majority opinion begins:

The Leahy-Smith America Invents Act, 35 U. S. C. §100 et seq., establishes a process called “inter partes review.” Under that process, the United States Patent and Trademark Office (PTO) is authorized to reconsider and to cancel an issued patent claim in limited circumstances. In this case, we address whether inter partes review violates Article III or the Seventh Amendment of the Constitution. We hold that it violates neither.

Justice Gorsuch writes a dissenting opinion, joined by Chief Justice Roberts, arguing that the statutory scheme violates Article III: “Today’s decision may not represent a rout but it at least signals a retreat from Article III’s guarantees.”

 

 

 

April 25, 2018 in Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Tuesday, April 24, 2018

SCOTUS Decision in Jesner v. Arab Bank: Corporate Liability under the Alien Tort Statute

Today the Supreme Court issued its decision in Jesner v. Arab Bank, PLC, which addresses whether corporations may be liable in actions brought under the Alien Tort Statute (ATS), 28 U.S.C. § 1350. It’s a fractured decision, as evidenced by the following notation at the end of the syllabus:

KENNEDY, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–B–1, and II–C, in which ROBERTS, C. J., and THOMAS, ALITO, and GORSUCH, JJ., joined, and an opinion with respect to Parts II–A, II–B–2, II–B–3, and III, in which ROBERTS, C. J., and THOMAS, J., joined. THOMAS, J., filed a concurring opinion. ALITO, J., and GORSUCH, J., filed opinions concurring in part and concurring in the judgment. SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG, BREYER, and KAGAN, JJ., joined.

There are 85 pages worth of opinions, but the very brief takeaway (from Part II-B-1 of Justice Kennedy’s opinion, slip op. at 19) is that “absent further action from Congress it would be inappropriate for courts to extend ATS liability to foreign corporations.”

And from Part II-C, slip op. at 27: “Accordingly, the Court holds that foreign corporations may not be defendants in suits brought under the ATS.”

Justice Sotomayor’s dissenting opinion argues that foreign corporations should not be categorically immune from liability under the ATS.

 

 

April 24, 2018 in Federal Courts, International/Comparative Law, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Monday, April 23, 2018

Ninth Circuit: Monkey satisfies Article III, but lacks statutory standing under Copyright Act

Today a panel of the Ninth Circuit issued its decision in Naruto v. Slater (the Monkey Selfie case), covered earlier here. People for the Ethical Treatment of Animals (PETA) brought suit as the next friend of Naruto, who “was a seven-year-old crested macaque that lived—and may still live—in a reserve on the island of Sulawesi, Indonesia.” The majority opinion by Judge Carlos Bea begins:

We must determine whether a monkey may sue humans, corporations, and companies for damages and injunctive relief arising from claims of copyright infringement. Our court’s precedent requires us to conclude that the monkey’s claim has standing under Article III of the United States Constitution. Nonetheless, we conclude that this monkey—and all animals, since they are not human—lacks statutory standing under the Copyright Act.

Although the majority opinion stated that “[w]e gravely doubt that PETA can validly assert ‘next friend’ status to represent claims made for the monkey,” it wrote:

Even so, we must proceed to the merits because Naruto’s lack of a next friend does not destroy his standing to sue, as having a ‘case or controversy’ under Article III of the Constitution. Federal Rule of Civil Procedure 17, which authorizes “next friend” lawsuits, obligates the court “to consider whether [incompetent parties] are adequately protected,” even where they have no “next friend” or “guardian.” U.S. v. 30.64 Acres of Land, 795 F.2d 796, 805 (9th Cir. 1986). Within this obligation, the court has “broad discretion and need not appoint a guardian ad litem [or next friend] if it determines the person is or can be otherwise adequately protected.” Id. (citing Roberts v. Ohio Casualty Ins. Co., 2556 F.2d 35, 39 (5th Cir. 1958) (“Rule 17(c) does not make the appointment of a guardian ad litem mandatory.”)). See also Harris v. Mangum, 863 F.3d 1133, 1139 n.2 (9th Cir. 2017) (noting circumstances in which “appointing a guardian ad litem . . . could hinder the purpose of Rule 17(c),” and thus was not required). For example, “the court may find that the incompetent person’s interests would be adequately protected by the appointment of a lawyer.” Krain v. Smallwood, 880 F.2d 1119, 1121 (9th Cir. 1989) (citing Westcott v. United States Fidelity & Guaranty Co., 158 F.2d 20, 22 (4th Cir. 1946). Indeed, courts have done just this, and the fact that those courts did not then dismiss the case proves that the lack of a next friend does not destroy an incompetent party’s standing. See, e.g., Westcott, 158 F.2d at 22 (affirming judgment against minor who was represented by an attorney but not a guardian ad litem).

Proceeding to Naruto’s constitutional standing, the majority concluded that Naruto’s claim satisfied Article III:

Here, the complaint alleges that Naruto is the author and owner of the Monkey Selfies. The complaint further alleges that Naruto has suffered concrete and particularized economic harms as a result of the infringing conduct by the Appellees, harms that can be redressed by a judgment declaring Naruto as the author and owner of the Monkey Selfies.

In reaching these conclusions, the majority found that it was bound by an earlier Ninth Circuit decision—Cetacean Cmty. v. Bush, 386 F.3d 1169 (9th Cir. 2004). In a footnote, however, the majority argued that Cetacean was “incorrectly decided” and “needs reexamination.”

Ultimately, the panel found that the district court correctly dismissed the case because “Naruto—and, more broadly, animals other than humans—lack statutory standing to sue under the Copyright Act.”

Judge N.R. Smith wrote a concurring opinion that disagreed with the majority’s handling of PETA’s lack of next-friend standing.

 

 

 

April 23, 2018 in Current Affairs, Federal Courts, Recent Decisions, Standing, Subject Matter Jurisdiction | Permalink | Comments (0)

Thursday, April 19, 2018

Seventh Circuit Affirms Nationwide Injunction in "Sanctuary Cities" Case

Today the Seventh Circuit issued its decision in City of Chicago v. Sessions. The court upheld an injunction blocking the Trump administration from imposing restrictions on recipients of federal public safety grants. Those restrictions included what is known as the “notice” condition, “mandating advance notice to federal authorities of the release date of persons in state or local custody who are believed to be aliens,” and what is known as the “access” condition, which “required the local correctional facility to ensure agents access to such facilities and meet with those persons.”

Among other things, Judge Rovner’s majority opinion (joined by Judge Bauer) affirmed the district court’s decision to impose an injunction on a nationwide basis:

The case before us presents an example of the type of case in which a district court should properly be able to apply an injunction nationwide. The case presents essentially a facial challenge to a policy applied nationwide, the balance of equities favors nationwide relief, and the format of the Byrne JAG grant itself renders individual relief ineffective to provide full relief. 

Judge Manion dissented in part, arguing that “the entry of the nationwide injunction constituted an overstep of the district court’s authority.”

 

 

April 19, 2018 in Federal Courts, Recent Decisions | Permalink | Comments (0)