Friday, November 15, 2013

SCOTUS Cert. Grant of Interest: Halliburton v. Erica P. John Fund

Today the Supreme Court granted certiorari in Halliburton Co. v. Erica P. John Fund (No. 13-317). Here are the questions presented:

1. Whether this Court should overrule or substantially modify the holding of Basic Inc. v. Levinson, 485 U.S. 224 (1988), to the extent that it recognizes a presumption of classwide reliance derived from the fraud-on-the-market theory.

2. Whether, in a case where the plaintiff invokes the presumption of reliance to seek class certification, the defendant may rebut the presumption and prevent class certification by introducing evidence that the alleged misrepresentations did not distort the market price of its stock.

Links to the cert-stage briefing and the Fifth Circuit’s opinion below available are at SCOTUSblog. If the name of this case sounds familiar, it’s been up to the Supreme Court before. In 2011, the Court unanimously decided that the plaintiff was not required to prove loss causation at the class-certification phase. But at the end of the opinion, Chief Justice Roberts alluded to the issues the Court will now confront:

Because we conclude the Court of Appeals erred by requiring EPJ Fund to prove loss causation at the certification stage, we need not, and do not, address any other question about Basic, its presumption, or how and when it may be rebutted. To the extent Halliburton has preserved any further arguments against class certification, they may be addressed in the first instance by the Court of Appeals on remand.

 

November 15, 2013 in Class Actions, Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Thursday, November 14, 2013

Plaintiffs in Comcast Class Action Allowed to Attempt Recertification of a Narrowed Class

Following the Supreme Court's reversal of certification of an antitrust class in Comcast Corp. v. Behrend,  133 S. Ct. 1426 (2013), the district court in the case has allowed plaintiffs to present another motion for certification of a narrower class.  Glaberson v. Comcast Corp., No. 03-6604 (E.D. Pa. Nov. 13, 2013).

The court rejected Comcast's argument that the rule of mandate prevented the court from considering another motion for class certification, holding:

The Supreme Court reversed our prior certification order because the Plaintiffs’ proffered evidence on antitrust impact was not limited to the overbuilding theory, and thus failed the predominance requirement in Fed. R. Civ. P. 23(b)(3). Importantly, the Supreme Court did not decide as a matter of law that class-wide proof could never be established. Rather, the Supreme Court’s opinion clearly contemplates that a damages model that measured only the antitrust impact of the overbuilding theory, and also plausibly showed that the extent of overbuilding, absent deterrence would have been the same in all counties, or that the extent was irrelevant to any effect upon Comcast’s ability to charge supra-competitive prices, could be common evidence. Comcast Corp., 133 S. Ct. at 1435 n.6. Under the Third Circuit’s law of mandate, Plaintiffs’ ability to certify a significantly narrowed class based on a more limited antitrust impact model that satisfies Footnote 6 is a “matter[] left open by the mandate,” since it was not decided by the Supreme Court in the first appeal and deemed finally settled.

November 14, 2013 in Class Actions, Recent Decisions | Permalink | Comments (0)

Wednesday, November 6, 2013

Still More on the Second Circuit's Order in the Stop-and-Frisk Case

Coverage of the Second Circuit’s order in the Stop-and-Frisk case—staying Judge Scheindlin’s rulings and ordering her removed from the case—continues:

More coverage here.

November 6, 2013 in Current Affairs, Federal Courts, In the News, Recent Decisions, Weblogs | Permalink | Comments (0)

Monday, November 4, 2013

SCOTUS, Class Actions & Cy Pres: Cert. Denied in Marek v. Lane, but with a Statement by Chief Justice Roberts

Today the Supreme Court denied certiorari in Marek v. Lane (No. 13-136), a closely watched class action against Facebook. Four class members had objected to the settlement of that class action, which included as a cy pres remedy “the establishment of a new charitable foundation that would help fund organizations dedicated to educating the public about online privacy.” The settlement was approved by the district court and on appeal to the Ninth Circuit, prompting a petition for certiorari by one of the objectors.

Scroll to the end of today’s order list, however, and you’ll find a “Statement of Chief Justice Roberts respecting the denial of certiorari.” Here’s the final paragraph of the Chief’s statement:

I agree with this Court’s decision to deny the petition for certiorari. Marek’s challenge is focused on the particular features of the specific cy pres settlement at issue. Grant­ing review of this case might not have afforded the Court an opportunity to address more fundamental concerns surrounding the use of such remedies in class action liti­gation, including when, if ever, such relief should be con­sidered; how to assess its fairness as a general matter; whether new entities may be established as part of such relief; if not, how existing entities should be selected; what the respective roles of the judge and parties are in shaping a cy pres remedy; how closely the goals of any enlisted organization must correspond to the interests of the class; and so on. This Court has not previously addressed any of these issues. Cy pres remedies, however, are a growing feature of class action settlements. See Redish, Julian, & Zyontz, Cy Pres Relief and the Pathologies of the Modern Class Action: A Normative and Empirical Analysis, 62 Fla. L. Rev. 617, 653–656 (2010). In a suitable case, this Court may need to clarify the limits on the use of such remedies. 

 

November 4, 2013 in Class Actions, Recent Decisions | Permalink | Comments (0)

Sunday, November 3, 2013

More on the Second Circuit's Order in the Stop-and-Frisk Case

We covered earlier the Second Circuit’s order staying District Judge Shira Scheindlin’s rulings in the stop-and-frisk litigation and removing her from the case. For more, here are a few links worth taking a look at:

 

November 3, 2013 in Current Affairs, Federal Courts, In the News, Recent Decisions, Weblogs | Permalink | Comments (0)

Thursday, October 31, 2013

Second Circuit Stays SDNY's Stop-and-Frisk Rulings Pending Appeal, Orders District Judge Removed From Case

In August, U.S. District Judge Shira Scheindlin ruled that the New York City Police Department’s “stop and frisk” policy was unconstitutional and ordered a series of remedies. Today the Second Circuit not only stayed Judge Scheindlin’s orders and opinions pending appeal; it also ordered that she be taken off the case. From the Second Circuit’s order (footnotes omitted):

Upon review of the record in these cases, we conclude that the District Judge ran afoul of the Code of Conduct for United States Judges, Canon 2 (“A judge should avoid impropriety and the appearance of impropriety in all activities.”); see also Canon 3(C)(1) (“A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned . . . .”), and that the appearance of impartiality surrounding this litigation was compromised by the District Judge’s improper application of the Court’s “related case rule,” see Transfer of Related Cases, S.D.N.Y. & E.D.N.Y. Local Rule 13(a), and by a series of media interviews and public statements purporting to respond publicly to criticism of the District Court.

Accordingly, we conclude that, in the interest, and appearance, of fair and impartial administration of justice, UPON REMAND, these cases shall be assigned to a different District Judge, chosen randomly under the established practices of the District Court for the Southern District of New York. This newly-designated District Judge shall implement this Court’s mandate staying all proceedings and otherwise await further action by the Court of Appeals on the merits of the ongoing appeals.

October 31, 2013 in Federal Courts, In the News, Recent Decisions | Permalink | Comments (0)

Wednesday, October 23, 2013

Delaware Chancery Court Arbitrations Must Be Open to Public, Third Circuit Holds

We first reported on the Delaware Coalition for Open Government's challenge to the statutorily-mandated confidentiality of court-sponsored arbitrations here, when the federal district court held that the First Amendment mandated public access to the arbitrations.

The Third Circuit has now affirmed that decision:

Because there has been a tradition of accessibility to proceedings like Delaware’s government-sponsored arbitration, and because access plays an important role in such proceedings, we find that there is a First Amendment right of access to Delaware’s government-sponsored arbitrations. We will therefore affirm the order of the District Court.

Delaware Coalition for Open Government v. Strine, No. 12-3859 (3d Cir. Oct. 23, 2013).

October 23, 2013 in Recent Decisions, State Courts | Permalink | Comments (0)

Tuesday, October 15, 2013

SCOTUS Dismisses Madigan v. Levin

During last week’s oral argument in Madigan v. Levin (No. 12-872), the Justices revealed some concerns about whether that case was a suitable vehicle for deciding the issues for which the Supreme Court granted certiorari. One such concern—highlighted in a law professor amicus brief—was that the Seventh Circuit lacked appellate jurisdiction to decide the issue.  

Today, the Supreme Court dismissed the writ of certiorari as improvidently granted. As is often the case, the Court issued only a one-sentence per curiam opinion: “The writ of certiorari is dismissed as improvidently granted.” (Well, it's two sentences if you count “It is so ordered.”)

 

October 15, 2013 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Wednesday, October 2, 2013

Judge Posner Admonishes District Court for Dismissing Prisoner's Complaint After Telephonic "Hearing"

The Seventh Circuit, in an opinion by Judge Posner, has ended the "unlawful" practice apparently followed in the Central District of Illinois of the district judge conducting a telephonic "merit-review hearing" shortly after the filing of a civil complaint by a pro se prisoner.  In this case, a prisoner filed a pro se §1983 complaint alleging a failure of jail officials to prevent other prisoners from assaulting him.  On the basis of the telephonic "hearing" with the prisoner, which was not transcribed, the district court dismissed the prisoner's complaint for failure to state a claim, stating that the plaintiff had "no evidence that the guards . . . had any knowledge of any threat made by the inmate who assaulted him."

Remarking that the "the procedure employed by the judge was inquisitorial" and had "no basis in American law other than in proceedings before some administrative agencies," the court reversed. Williams v. Wahner, No. 12-1886 (7th Cir. Oct. 1, 2013).

October 2, 2013 in Recent Decisions | Permalink | Comments (0)

Tuesday, October 1, 2013

Welcome Back, SCOTUS: Cert Grants of Interest

Today the Supreme Court came back from its summer recess and granted certiorari in eight cases. More information is available from Lyle Denniston at SCOTUSblog. Three of the cases raise interesting procedural issues specific to intellectual property claims:

Continue reading

October 1, 2013 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Monday, September 30, 2013

State Peer Review Statute Shields Documents from Medical Malpractice Discovery

The Legal Intelligencer reports a ruling by a Pennsylvania state trial judge protecting certain hospital documents from discovery in a medical malpractice case under Pennsylvania's Peer Review Protection Act.  Nurses created the documents, "including a chronology of events and a staff re-education plan," after receiving a report of an alleged injury at the hospital. The judge "found that the documents were created for peer-review purposes, and were therefore confidential" under the Act.

September 30, 2013 in Discovery, Recent Decisions, State Courts | Permalink | Comments (0)

Thursday, September 12, 2013

Eighth Circuit Opinion on Iqbal and Twombly

The Eighth Circuit's decision last week in Horras v. American Capital Strategies, Ltd. (No. 12-3886), __ F.3d __, 2013 WL 4711389, includes a partial dissent by Judge Colloton that is worth a read for his approach to pleading standards after Iqbal and Twombly. (Hat tip to Ryan Koopmans, who covers the case in this post.) The majority in Horras affirms the district court's dismissal of Horras’s complaint. Judge Colloton dissents as to Horras's claim for breach of fiduciary duty.

Judge Colloton writes that while the Supreme Court's approach to pleading in Iqbal and Twombly is an “important development,” courts “must be careful not to embellish it.” Citing Erickson, Swierkiewicz, Form 11, and articles by Judge, Dean, and chief drafter of the original FRCPs Charles E. Clark, he concludes: “Under the simplified pleading standard of Rule 8(a), I think the complaint here was sufficient to give ACS fair notice of the fiduciary duty claim that Horras has amplified in his briefing.”  

Here are some excerpts from Judge Colloton's opinion:  

Continue reading

September 12, 2013 in Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Twombly/Iqbal, Weblogs | Permalink | Comments (0)

Monday, September 9, 2013

Pennsylvania Appellate Court Overturns $14.5 Million Asbestos Verdict

From The Legal Intelligencer:

A divided state Superior Court panel has thrown out a $14.5 million asbestos verdict awarded to the widow of a man who died from mesothelioma, determining that her counsel's suggestion of a specific sum for damages to the jury was improper and that the plaintiff's expert's testimony was inadmissable.  Read more . . .

PM

September 9, 2013 in In the News, Mass Torts, Recent Decisions | Permalink | Comments (0)

Friday, September 6, 2013

Denial of Motion to Reconsider Remand Order Not Appealable

Plaintiffs filed suit in Pennsylvania state court asserting state-law claims arising from a plane crash.  Defendants removed the case to federal district court, asserting diversity jurisdiction.  Plaintiffs moved to remand the case, asserting that one of the defendants was a citizen of Pennsylvania, and therefore not diverse from all plaintiffs.  The district court granted plaintiffs' motion and ordered the case remanded to state court.  One of the defendants moved for reconsideration.  The district court also denied the motion for reconsideration.  Defendants appealed.

The Third Circuit dismissed the appeal for lack of appellate jurisdiction.  28 U.S.C. 1447(d) provides that "[a]n order remanding a case to the State court from which it was removed is not reviewble on appeal or otherwise . . ."  The court noted that the purpose of this provision "is to prevent a party to a state lawsuit from using federal removal provisions and appeals as a tool to introduce substantial delay into a state action."  Allowing an appeal from a denial of a motion to reconsider an order to remand would circumvent this purpose.

The district court itself had jurisdiction to consider the motion to reconsider, however, because "at the time when the District Court considered the motion for reconsideration, a certified copy of the remand order had not yet been mailed from the District Court Clerk to the state court."  Agostini v. Piper Aircraft Corp., No. 12-2098 (3d Cir. Sept. 5, 2013).      

 

September 6, 2013 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction | Permalink | Comments (0)

Saturday, August 31, 2013

Appeal from District Court's Denial of Exemption from PACER Fees Dismissed

The Ninth Circuit dismissed an appeal from the district court's denial of an ex parte application for an exemption from PACER fees (the fees associated with electronic access to federal court records) for lack of jurisdiction, holding that the denial was not a final decision under 28 U.S.C. Section 1291.  In Re: Application for Exemption from Electronic Public Access Fees,  No. 12-16373 (9th Cir. Aug. 29, 2013). 

Judge O'Scannlain, who wrote the opinion, also filed a concurrence acknowledging "the elephant in the room" -- if the denial was unappealable, to whom might one go for review? -- and suggesting that it "will be up to Congress to decide whether to fashion an appellate-review mechanism."   I'm not holding my breath.

PM 

August 31, 2013 in Federal Courts, Recent Decisions, Sports | Permalink | Comments (0)

Tuesday, August 27, 2013

Seventh Circuit (Posner, J.) reaffirms class certification after post-Comcast GVR

Following its decision in Comcast v. Behrend, the Supreme Court remanded a number of class actions for reconsideration (two in April and one in June). Last month, the Sixth Circuit found that class certification remained proper in Glazer v. Whirlpool, a class action involving defective washing machines. The Seventh Circuit has now done the same in a similar washing machine class action against Sears. The entire opinion (Butler v. Sears) is worth a read; Judge Posner’s discussion of Comcast starts on page 5. Here are some excerpts:

Continue reading

August 27, 2013 in Class Actions, Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Tuesday, August 13, 2013

NY Times Story on Cy Pres Class Action Settlements

Here’s Adam Liptak’s latest story, When Lawyers Cut Their Clients Out of the Deal, which discusses a recent Ninth Circuit decision on cy pres settlements that is the subject of a pending Supreme Court cert. petition, Marek v. Lane (No. 13-136).

--A

August 13, 2013 in Class Actions, Federal Rules of Civil Procedure, In the News, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Monday, August 12, 2013

More Bad News for Fair Labor Standards Act Plaintiffs

Hot on the heels of Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013), comes a new Second Circuit decision heralding the slow strangulation of Fair Labor Standards Act cases: Sutherland v. Ernst & Young LLP, No. 12-304-cv (2d Cir. Aug. 9, 2013).

Plaintiff, a former employee of Ernst & Young, brought a class action on behalf of herself and other similarly situated to recover overtime wages under the FLSA and the New York Department of Labor's Minimum Wage Order.  Plaintiff's employment contract, naturally, contained a mandatory arbitration clause that specifically applied to the FLSA and state wage laws, as well as a provision that "disputes pertaining to different employees will be heard in separate proceedings." 

Plaintiff's individual alleged unpaid overtime wages were $1,867.02.  The district court denied Ernst & Young's motion to dismiss, stay the proceedings, or compel arbitration on an individual bases.  The district court reasoned that "[e]nforcement of the class waiver provision in this case would effectively ban all proceeings by [plaintiff] against E&Y."

The Second Circuit reversed.  Citing American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013), the court held that the "effective vindication doctrine" (which might allow invalidation of a class-action waiver) was not satisfied even if the cost of proceeding individually in arbitration would exceed the potential recovery.  Further, the court held that FLSA "does not include a 'contrary congressional command' that prevents a class-action waiver provision in an arbitration agreement from being enforced by its terms."

PM

August 12, 2013 in Class Actions, Recent Decisions | Permalink | Comments (0)

Thursday, August 8, 2013

MDL Panel Grants Transfer in Effexor Litigation and Two Others

The Judicial Panel on Multidistrict Litigation granted three Motions to Centralize and denied eight Motions to Centralize in its July 2013 Hearing Session.

Motion granted:

MDL No. 2458 - IN RE: Effexor (Venlafaxine Hydrochloride) Products Liability Litigation (before Judge Rufe in the Eastern District of Pennsylvania)

MDL No. 2455 - IN RE: Stericycle, Inc., Steri-Safe Contract Litigation (before Judge Shadur in the Northern District of Illinois)

MDL No. 2454 - IN RE: Franck's Lab, Inc., Products Liability Litigation (before Judge Engelhardt in the Eastern District of Louisiana)

Motion denied:

MDL No. 2469 - IN RE: Capatriti Brand Olive Oil Marketing and Sales Practices Litigation

MDL No. 2467 - IN RE: Bank of America, N.A., Mortgage Corporation Force-Placed Hazard Insurance Litigation

MDL No. 2466 - IN RE: Wells Fargo Bank, N.A., Mortgage Corporation Force-Placed Hazard Insurance Litigation

MDL No. 2465 - IN RE: JPMorgan Chase Bank, N.A., Mortgage Corporation Force-Placed Hazard Insurance Litigation

MDL No. 2464 - IN RE: HSBC Mortgage Corporation Force-Placed Hazard Insurance Litigation

MDL No. 2463 - IN RE: Fresh Dairy Products Antitrust Litigation (No. II)

MDL No. 2453 - IN RE: Adderall XR (Amphetamine/Dextroamphetamine) Marketing, Sales Practices and Antitrust Litigation

MDL No. 2456 - IN RE: Kashi Company Marketing and Sales Practices Litigation

 

PM

August 8, 2013 in Mass Torts, MDLs, Recent Decisions | Permalink | Comments (0)

Monday, July 22, 2013

Sixth Circuit Reaffirms Certification of Whirlpool Washing Machine Class Despite Comcast v. Behrend

The Northern District of Ohio, supervising multidistrict litigation alleging that Whirlpool's front-loading washing machines allow mold and mildew to grow in the machines, certified a class of Ohio purchasers for liability purposes.  The Sixth Circuit affirmed.  The Supreme Court granted Whirlpool's petition for certiorari, vacated, and remanded to the Sixth Circuit for reconsideration in light of Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013).

The Sixth Circuit just reaffirmed the class certification, despite Amgen and Comcast.  Glazer v. Whirlpool Corp., No. 10-4188 (6th Cir. July 18, 2013).

PM 

July 22, 2013 in Class Actions, MDLs, Recent Decisions | Permalink | Comments (0)