Friday, October 21, 2016
Yesterday the U.S. Court of Appeals for the Federal Circuit issued its decision in Large Audience Display Systems v. Tennman Productions, LLC. It reversed the district court’s award of attorney’s fees to (among others) Justin Timberlake and Britney Spears. Here’s the opinion’s first paragraph:
Large Audience Display Systems, LLC (“LADS”) appeals from the district court’s order granting a motion for attorney’s fees under 35 U.S.C. § 285 filed by Appellees Justin Timberlake, Tennman Productions, LLC, Britney Spears, and Spears King Pole, Inc. (collectively, “Appellees”). We find that certain of the factors relied upon by the district court to find this case to be exceptional were entitled to no weight under § 285. We therefore vacate the district court’s award of attorney’s fees and costs, and remand for reconsideration of Appellees’ motion.
Will the ruling affect recent rumors of a possible Spears-Timberlake collaboration? Stay tuned.
Thursday, October 13, 2016
Last week, the U.S. Court of Appeals for the Third Circuit issued its decision in Schuchardt v. President of the United States (3d Cir. No. 15-3491). The plaintiff filed a lawsuit challenging NSA surveillance activities, but the district court dismissed for lack of standing. The Third Circuit reversed, with an opinion that begins:
This appeal involves a constitutional challenge to an electronic surveillance program operated by the National Security Agency (NSA) under the authority of Section 702 of the Foreign Intelligence Surveillance Act (FISA). Elliott Schuchardt appeals an order of the United States District Court for the Western District of Pennsylvania dismissing his civil action for lack of jurisdiction. The District Court held that Schuchardt lacked standing to sue because he failed to plead facts from which one might reasonably infer that his own communications had been seized by the federal government. Because we hold that, at least as a facial matter, Schuchardt’s second amended complaint plausibly stated an injury in fact personal to him, we will vacate the District Court’s order and remand.
The court goes on to discuss the Supreme Court’s 2013 decision in Clapper v. Amnesty International USA, as well as the general pleading standard set forth in Twombly and Iqbal.
It’s worth noting that a case similar to Schuchardt is currently pending in the Fourth Circuit. Wikimedia Foundation v. NSA (4th Cir. No. 15-2560) is scheduled for oral argument in December. If readers are interested, below is a link to an amicus brief in the Wikimedia case that I filed on behalf of various civil procedure and federal courts professors:
Tuesday, October 11, 2016
SCOTUS grants cert to review 9/11 lawsuits; questions presented involve Bivens, qualified immunity & pleading standards
Today the Supreme Court granted certiorari in three cases, which it then consolidated. The cases are Ziglar v. Turkmen (No. 15-1358), Ashcroft v. Turkmen (No. 15-1359), and Hasty v. Turkmen (No. 15-1363). The petitioners are federal officials challenging the Second Circuit’s decision (Turkmen v. Hasty, 789 F.3d 218 (2015)) refusing to dismiss certain claims by plaintiffs alleging they were subjected to discriminatory and punitive treatment during their confinement following the 9/11 attacks. One aspect of these cases that could prove quite important is that Justices Sotomayor and Kagan “took no part in the consideration or decision of these petitions” and have apparently recused themselves.
The three cases present slightly different but overlapping questions relating to Bivens, qualified immunity, and pleading standards. Not surprisingly, there are echoes of the Court’s 2009 decision in Ashcroft v. Iqbal, which has had a significant impact on pleading standards generally (Iqbal is already the #4 most-cited Supreme Court decision in history).
Monday, October 3, 2016
Last week, U.S. Magistrate Judge Laurel Beeler of the Northern District of California invoked Rule 4(f)(3) to order that a plaintiff be allowed to use Twitter to serve process on a Kuwaiti national. The case is St. Francis Assisi v. Kuwait Financial House, and the opinion begins:
The plaintiff, St. Francis Assisi (a non-profit corporation), sued the defendants, Kuwait Finance House, Kuveyt-Turk Participation Bank Inc., and Hajjaj al-Ajmi (an individual) for damages and equitable relief arising from the defendants’ financing of the terrorist organization known as the Islamic State of Iraq and Syria (ISIS), which resulted in the targeted murder of Assyrian Christians in Iraq and Syria. (See Compl., ECF No. 1.)
St. Francis has not been successful in serving process on al-Ajmi. (See ECF No. 10.) Al-Ajmi is a Kuwaiti national and efforts to locate him have been unsuccessful. (Id.) St. Francis now asks to serve al-Ajmi by alternative means under Federal Rule of Civil Procedure 4(f)(3) via the social-media platform, Twitter. (Id.) The court grants St. Francis’s request because service via Twitter is reasonably calculated to give notice and is not prohibited by international agreement.
Eric Goldman has coverage here.
Thursday, September 29, 2016
Today the Supreme Court issued the order list following its end-of-the-summer “Long Conference.” It granted certiorari in nine cases. Here are some that may be of particular interest...
McLane Co. v. EEOC (No. 15-1248): Whether a district court’s decision to quash or enforce an EEOC subpoena should be reviewed de novo, which only the Ninth Circuit does, or should be reviewed deferentially, which eight other circuits do, consistent with this Court’s precedents concerning the choice of standards of review.
Goodyear Tire & Rubber Co. v. Haeger (No. 15-1406) (consolidated with Musnuff v. Haeger (No. 15-1491)): Is a federal court required to tailor compensatory civil sanctions imposed under inherent powers to harm directly caused by sanctionable misconduct when the court does not afford sanctioned parties the protections of criminal due process?
Lewis v. Clarke (No. 15-1500): Whether the sovereign immunity of an Indian tribe bars individual-capacity damages actions against tribal employees for torts committed within the scope of their employment.
Tuesday, September 27, 2016
Yesterday the U.S. Court of Appeals for the Ninth Circuit issued its decision in de Fontbrune v. Wofsy. The court unanimously held that the district court was correct to consider expert declarations on the content of French law in connection with the defendants’ Rule 12(b)(6) motion to dismiss, although it reversed on the issue of whether the French award at issue in the case was cognizable under California’s Uniform Recognition Act.
Here are the opinion’s opening paragraphs:
Justice Holmes once observed that foreign legal systems can appear to the uninitiated “like a wall of stone,” impenetrable and unyielding. Diaz v. Gonzales, 261 U.S. 102, 106 (1923) (Holmes, J.). For over a century, the federal courts attempted to scale this stone wall by treating questions of foreign law as questions of fact to be pleaded and proved. But over the years, this method proved unsatisfactory, obscuring rather than illuminating the content and nuance of foreign laws. Finally, in 1966, following a proliferation of international litigation, Federal Rule of Civil Procedure 44.1 was adopted to furnish federal courts with a uniform procedure for raising and determining an issue concerning foreign law. Fed. R. Civ. P. 44.1 advisory committee’s note. Now, according to the Rule, a “court’s determination [of foreign law] must be treated as a ruling on a question of law.” Fed. R. Civ. P. 44.1.
Despite the clear mandate of the federal rule, this appeal illustrates the difficulty that can arise in determining foreign law and the confusion surrounding the role of foreign law in domestic proceedings. The dispute stems from the transcontinental attempts of Yves Sicre de Fontbrune to protect his copyright in photographs of Pablo Picasso’s artworks after an American art editor, Alan Wofsy and Alan Wofsy and Associates (collectively, “Wofsy”), reproduced the photographic images. As part of his efforts, de Fontbrune received a judgment in French court of two million euros in “astreinte” against Wofsy for copyright violations. De Fontbrune sought to enforce this astreinte in federal court in California under the California Uniform Foreign-Court Monetary Judgment Recognition Act (“Uniform Recognition Act” or “the Act”), Cal. Civ. Proc. Code §§ 1713 et seq.
The Picasso photographs—intended to convey the quintessence of Picasso’s artworks—now require us to delve into the essence of astreinte, a French judicial device. The enforceability of the French award turns on whether, in this case, the astreinte functions as a fine or penalty—which the Uniform Recognition Act does not recognize—or as a grant of monetary recovery—which is statutorily cognizable. The answer to this question is not a simple matter of translation, but, as we explain, requires a broader look at French law to understand the nature of the astreinte remedy in this case, in conjunction with an analysis of California law regarding the enforcement of foreign judgments.
Tuesday, September 20, 2016
Today the U.S. Court of Appeals for the Second Circuit issued its decision in In re: Vitamin C Antitrust Litigation. The plaintiffs had obtained a judgment for $147 million in damages (as well as injunctive relief) against two Chinese companies, but the Second Circuit found that the district court should have abstained on international comity grounds. From the opinion:
This case presents the question of what laws and standards control when U.S. antitrust laws are violated by foreign companies that claim to be acting at the express direction or mandate of a foreign government. Specifically, we address how a federal court should respond when a foreign government, through its official agencies, appears before that court and represents that it has compelled an action that resulted in the violation of U.S. antitrust laws. ***
Here, because the Chinese Government filed a formal statement in the district court asserting that Chinese law required Defendants to set prices and reduce quantities of vitamin C sold abroad, and because Defendants could not simultaneously comply with Chinese law and U.S. antitrust laws, the principles of international comity required the district court to abstain from exercising jurisdiction in this case.
Wednesday, September 14, 2016
Yesterday the U.S. Court of Appeals for the Third Circuit issued its decision in In re: Modafinil Antitrust Litigation. The court addresses Rule 23(a)(1), which provides that to certify a class action the class must be “so numerous that joinder of all members is impracticable.”
From the opinion’s introduction:
When thinking of a class action brought under Rule 23(b)(3), we typically think of a large aggregation of individuals (hundreds or even thousands), each with small claims. This case is quite different from that. Here, we are faced with a putative class of twenty-two large and sophisticated corporations, most of which have multi-million dollar claims, who wish to take advantage of the class action device. While we do not foreclose the possibility of class status in this case, or where the putative class is of similar composition, Plaintiffs have not met their burden of showing that the numerosity requirement of Rule 23(a)(1) has been satisfied. We now provide a framework for district courts to apply when conducting their numerosity analyses, and we will remand to the District Court to allow such an analysis in this case.
Wednesday, September 7, 2016
Last week the U.S. Court of Appeals for the Eighth Circuit issued its decision in In re: Missouri Department of Corrections. The case involves a subpoena that two Mississippi death row inmates served on the Missouri Department of Corrections (MDOC) seeking discovery relating to Missouri’s use of pentobarbital in lethal injections, including the identities of its pentobarbital suppliers. The inmates are challenging Mississippi’s execution method (which does not use pentobarbital) as violating the Eighth Amendment.
MDOC moved to quash the subpoena, but the district court in Missouri denied the motion and ordered MDOC to produce most of the information sought by the inmates. The Eighth Circuit has now denied MDOC’s request for a writ of mandamus challenging that order. It’s a short six-page opinion, but it covers a lot of ground—from appellate mandamus, to whether a subpoena creates an undue burden under FRCP 45(d)(3)(A)(iv), to sovereign immunity, to the state secrets privilege.
Wednesday, August 31, 2016
Today the Second Circuit issued its decision in Sokolow v. Palestine Liberation Organization. The claims in the case were brought by eleven American families against the Palestine Liberation Organization and the Palestinian Authority under the Anti-Terrorism Act (18 U.S.C. § 2333(a)), based on terror attacks in Israel. The plaintiffs had won a $655.5 million jury verdict in the district court, but the decision today ruled that U.S. courts lacked personal jurisdiction.
The Second Circuit found that general jurisdiction was not permissible in light of the U.S. Supreme Court’s decision in Daimler. As for specific jurisdiction, the court concluded:
In sum, because the terror attacks in Israel at issue here were not expressly aimed at the United States and because the deaths and injuries suffered by the American plaintiffs in these attacks were “random [and] fortuitous” and because lobbying activities regarding American policy toward Israel are insufficiently “suit-related conduct” to support specific jurisdiction, the Court lacks specific jurisdiction over these defendants.
Here are the opinion’s final paragraphs:
The terror machine gun attacks and suicide bombings that triggered this suit and victimized these plaintiffs were unquestionably horrific. But the federal courts cannot exercise jurisdiction in a civil case beyond the limits prescribed by the due process clause of the Constitution, no matter how horrendous the underlying attacks or morally compelling the plaintiffs’ claims.
The district court could not constitutionally exercise either general or specific personal jurisdiction over the defendants in this case. Accordingly, this case must be dismissed.
Tuesday, August 30, 2016
Yesterday the California Supreme Court issued a 4-to-3 decision in Bristol-Myers Squibb Company v. Superior Court, upholding personal jurisdiction in California over pharma company Bristol-Myers Squibb. From the introduction:
Bristol Myers Squibb Company (BMS), a pharmaceutical manufacturer, conducts significant business and research activities in California but is neither incorporated nor headquartered here. In March 2012, eight separate amended complaints were filed in San Francisco Superior Court by or on behalf of 678 individuals, consisting of 86 California residents and 592 nonresidents, all of whom allegedly were prescribed and ingested Plavix, a drug created and marketed by BMS, and as a result suffered adverse consequences. BMS contests the propriety of a California court’s exercising personal jurisdiction over it for purposes of adjudicating the nonresident plaintiffs’ claims.
*** Although BMS’s business contacts in California are insufficient to invoke general jurisdiction, which permits the exercise of jurisdiction over a defendant regardless of the subject of the litigation, we conclude the company’s California activities are sufficiently related to the nonresident plaintiffs’ suits to support the invocation of specific jurisdiction, under which personal jurisdiction is limited to specific litigation related to the defendant’s state contacts.
The three dissenters argued that the nonresident plaintiffs’ claims lacked a sufficient relationship to BMS’s California contacts to justify specific jurisdiction.
Monday, August 29, 2016
Last week the U.S. Court of Appeals for the Second Circuit issued its decision in Nicosia v. Amazon.com, Inc., holding that the plaintiff’s suit against Amazon should not be dismissed for failure to state a claim based on the mandatory arbitration provision in Amazon’s Conditions of Use.
Of course there’s considerable discussion of the Federal Arbitration Act and substantive contract law, but the court also addresses pleading standards, the relationship between Rule 12(b)(6) motions and motions to compel arbitration, and standing (the latter with respect to the plaintiff’s request for a preliminary injunction).
Wednesday, August 24, 2016
Today the U.S. Court of Appeals for the Second Circuit handed down another post-Kiobel decision on the Alien Tort Statute (ATS). Licci v. Lebanese Canadian Bank involves claims against a Lebanese bank alleging that they provided international financial services to Hezbollah that facilitated Hezbollah’s rocket attacks on civilians in Israel.
From the opinion’s introductory paragraphs:
This case is not new to our Court. In fact, this appeal is in its third appearance before us in the last five years. In our prior opinions, we determined (with an assist from the New York Court of Appeals, see Licci v. Lebanese Canadian Bank, SAL, 20 N.Y.3d 327, 339 (2012) (“Licci III”)) that the District Court had personal jurisdiction over defendant LCB, and that subjecting the foreign bank to personal jurisdiction in New York comports with due process protections provided by the United States Constitution. See Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 732 F.3d 161, 165 (2d Cir. 2013) (“Licci IV”); Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 73–74 (2d Cir. 2012) (“Licci II”). This case presents a different question: Whether the District Court has subject matter jurisdiction over Plaintiffs’ ATS claims. The District Court dismissed the ATS claims under Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013) (“Kiobel II”), reasoning that Plaintiffs failed to displace the presumption against extraterritorial application of the ATS. Though we disagree with the District Court’s basis for dismissal, we affirm because the ATS claims seek to impose corporate liability in contravention of our decision in Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 145 (2d Cir. 2010) (“Kiobel I”).
Here’s the full opinion:
Particularly notable is the Second Circuit’s discussion of the Supreme Court’s Kiobel decision [pp.18-30 of the opinion], and its conclusion that “Plaintiffs have surpassed the jurisdictional hurdle set forth in Kiobel II, 133 S. Ct. at 1669.”
Monday, August 22, 2016
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.
Friday, August 19, 2016
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.
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.
Thursday, August 4, 2016
Alabama Chief Justice Roy Moore’s federal lawsuit against the Alabama Judicial Inquiry Commission was dismissed today on Younger abstention grounds. Here’s the order:
Monday, July 11, 2016
In a 4-3 decision, the Colorado Supreme Court has adopted for purposes of Colorado state procedure the approach to pleading that the U.S. Supreme Court employed in Twombly and Iqbal. From the majority opinion in Warne v. Hall:
¶2 Because our case law interpreting the Colorado Rules of Civil Procedure in general, and C.R.C.P. 8 and 12(b)(5) in particular, reflects first and foremost a preference to maintain uniformity in the interpretation of the federal and state rules of civil procedure and a willingness to be guided by the Supreme Court’s interpretation of corresponding federal rules whenever possible, rather than an intent to adhere to a particular federal interpretation prevalent at some fixed point in the past, the court of appeals too narrowly understood our existing precedent. Because the plaintiff’s complaint, when evaluated in light of the more recent and nuanced analysis of Twombly and Iqbal, fails to state a plausible claim for relief, the judgment of the court of appeals finding the complaint to be sufficient is reversed, and the matter is remanded with instruction to permit further proceedings consistent with this opinion.
From the dissent:
¶31 Today, the majority jettisons a rule that has stood the test of time for over fifty years, based largely on an asserted preference for maintaining uniformity with federal court interpretations of analogous federal rules of procedure. In reaching this result, the majority misperceives the existing state of the law in Colorado and grafts onto C.R.C.P. 8 a “plausibility” requirement that the rule does not contain and that other courts have correctly recognized results in a loss of clarity, stability, and predictability. Even more concerning, the majority’s preferred standard allows a single district judge, at the incipient stages of a case, to weigh what the judge speculates the plaintiff will plausibly be able to prove, based on the individual judge’s subjective experience and common sense, and then to decide whether the plaintiff’s action is viable.
¶32 I cannot subscribe to such a standard, which I believe will deny access to justice for innumerable plaintiffs with legitimate complaints. Indeed, the majority’s application of its newly adopted standard in this case demonstrates the overreaching nature and ultimate unfairness of that standard.
Friday, May 27, 2016
The Seventh Circuit Court of Appeals, in an opinion by Judge Diane Wood, held that forcing an employee to agree to bring any wage-and-hour claim through individual arbitration violated the National Labor Relations Act. Lewis v. Epic Systems Corp., No. 15-2997 (7th Cir. May 26, 2016).
Epic sent an email to some employees with an agreement requiring them to bring wage-and-hour claims only through individual arbitration and to waive the right to participate in any class, collective, or representative proceeding. The email said that employees were “deemed to have accepted this Agreement” if they continued to work at Epic.
Plaintiff agreed at the time, but later sued Epic in federal court for violations of the overtime requirements of the Fair Labor Standards Act and Wisconsin law. Epic moved to compel individual arbitration.
Section 7 of the NLRA provides that “[e]mployees shall have the right to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157. The Seventh Circuit stated, “Section 7’s ‘other concerted activities’ have long been held to include ‘resort to administrative and judicial forums.’” The court held that “the phrase ‘concerted activities’ in Section 7 should be read broadly to include resort to representative, joint, collective, or class legal remedies.” Thus, “insofar as it prohibits collective action, Epic’s arbitration provision violates Sections 7 and 8 of the NLRA.”
Further, the Federal Arbitration Act did not “save the ban on collective action.” The district court’s denial of the motion to compel arbitration was affirmed.
Tuesday, March 29, 2016
My latest article, The Rise and Fall of Plausibility Pleading?, has just been published in the Vanderbilt Law Review. It builds on some of my earlier work on pleading (here and here), focusing on the Supreme Court’s post-Iqbal decisions on pleading standards (e.g., Johnson v. City of Shelby; Wood v. Moss; Matrixx Initiatives, Inc. v. Siracusano). Here’s the abstract:
The Supreme Court's 2007 decision in Bell Atlantic Corp. v. Twombly and its 2009 decision in Ashcroft v. Iqbal unleashed a torrent of scholarly reaction. Commentators charged these decisions with adopting a new pleading regime, "plausibility pleading," that upended the notice-pleading approach that had long prevailed in federal court. Whether a complaint could survive a motion to dismiss — it was argued — now depends on whether the court found the complaint plausible, allowing courts to second-guess a complaint’s allegations without any opportunity for discovery or consideration of actual evidence. Lower courts began to cite Twombly and Iqbal at a remarkably high rate, and empirical work revealed their effect on both dismissal rates and litigant behavior.
Although Twombly and Iqbal were troubling on many levels, the rise of a newly restrictive form of plausibility pleading was not inevitable. There was — and still is — a path forward that would retain the notice-pleading approach set forth in the text of the Federal Rules themselves and confirmed by pre-Twombly case law. This Article describes this reading of Twombly and Iqbal, and explains how more recent Supreme Court pleading decisions are consistent with this understanding. It is crucial, however, that these post-Iqbal decisions and the approach to pleading they reflect receive the same attention that accompanied Twombly, Iqbal, and the rise of plausibility pleading. Otherwise the narrative that Twombly and Iqbal compel a more restrictive pleading standard may become further entrenched, compounding the adverse effects of those problematic decisions.