Friday, December 6, 2013
Okay, I've succombed to bitcoin madness. A search today of the ALLCASES library in the Westlaw database yielded three cases with the word "Bitcoin" in them. The only one of any recency was the following.
In Entrepreneur Media, Inc. v. Smith, No. 2:10–mc–55–JAM–EFB (E.D. Cal. Nov. 26, 2013), a judgment creditor/plaintiff moved to compel the production of documents sought in aid of enforcement of its judgment against the judgment debtor/defendant. The document request included, "Any and all books, letters, papers, files, or documents . . . which show any wire transfer, electronic distribution and/or transmission of funds, purchase of debit cards, acquisition and use of any online digital banking services, such as Bitcoin, and/or any and all other papers which show any account in YOUR name, and moreover, any account by any entity, including any digital entity, for the TIME PERIOD." Without addressing any issue that might have been presented by the inclusion of Bitcoin transactions in the document request, the court granted the motion to compel this particular request (although it denied the motion as to other requests).
Tuesday, December 3, 2013
Today the Supreme Court issued a unanimous decision in Atlantic Marine Constr. Co. v. United States Dist. Court for Western Dist. of Tex. (No. 12-929), which considers the proper procedural vehicle for enforcing a contractual forum-selection clause when the plaintiff files in a federal district that violates that clause. A few highlights from the opinion by Justice Alito:
- Motions under Federal Rule of Civil Procedure 12(b)(3) and 28 U.S.C. § 1406(a) are not appropriate in this situation. A forum-selection clause does not make a venue “improper” for purposes of Rule 12(b)(3) or “wrong” for purposes of § 1406(a). [See pp. 4-8]
- A motion to transfer under 28 U.S.C. § 1404(a) is appropriate in this situation. Section 1404(a) “provides a mechanism for enforcement of forum-selection clauses that point to a particular federal district.” [p.9]
- “[T]he appropriate way to enforce a forum-selection clause pointing to a state or foreign forum is through the doctrine of forum non conveniens.” [pp.9-10]
- It remains an open question whether a forum-selection clause could be enforced through other vehicles, such as a Rule 12(b)(6) motion. This possibility had been urged by Professor Stephen Sachs in amicus brief, but the Court did not address it because the parties themselves did not raise it. Justice Alito adds: “Even if a defendant could use Rule 12(b)(6) to enforce a forum-selection clause, that would not change our conclusions that § 1406(a) and Rule 12(b)(3) are not proper mechanisms to enforce a forum-selection clause and that §1404(a) and the forum non conveniens doctrine provide appropriate enforcement mechanisms.” [p.11]
The opinion then addresses how a court should decide a § 1404(a) motion to enforce a forum-selection clause. Justice Alito writes:
“When the parties have agreed to a valid forum-selection clause, a district court should ordinarily transfer the case to the forum specified in that clause.5 Only under extraordinary circumstances unrelated to the convenience of the parties should a §1404(a) motion be denied.” [p.11]
(Footnote 5 makes clear that the Court’s analysis “presupposes a contractually valid forum-selection clause,” which leaves open the possibility that such a clause could be challenged as contractually invalid.) Justice Alito then explains: “The presence of a valid forum-selection clause requires district courts to adjust their usual §1404(a) analysis in three ways.” [p.12] They are:
- “First, the plaintiff ’s choice of forum merits no weight. Rather, as the party defying the forum-selection clause, the plaintiff bears the burden of establishing that transfer to the forum for which the parties bargained is unwarranted.” [p.13]
- “Second, a court evaluating a defendant’s § 1404(a) motion to transfer based on a forum-selection clause should not consider arguments about the parties’ private interests…. As a consequence, a district court may consider arguments about public-interest factors only.” [pp.13-14]
- “Third, when a party bound by a forum-selection clause flouts its contractual obligation and files suit in a different forum, a § 1404(a) transfer of venue will not carry with it the original venue’s choice-of-law rules.” [p.14]
Footnote 8 states that “the same standards should apply to should apply to motions to dismiss for forum non conveniens in cases involving valid forum-selection clauses pointing to state or foreign forums.”
The Court ultimately reverses the Fifth Circuit, but it remands for further proceedings: “Although no public-interest factors that might support the denial of Atlantic Marine’s motion to transfer are apparent on the record before us, we remand the case for the courts below to decide that question.” [p.17]
Monday, December 2, 2013
See how the Supreme Court of Tennessee addresses these issues in Cooper v. Glasser, __ S.W.3d __, 2013 WL 6174469 (Tenn. Nov. 26, 2013). The opinion is here. It begins:
Monday, November 18, 2013
Earlier this month we covered Chief Justice Roberts’ statement in Marek v. Lane, a case challenging a class action settlement that included cy pres remedies. In his statement, Chief Justice Roberts agreed with the decision to deny certiorari but raised a number of concerns about cy pres remedies, concluding that “[i]n a suitable case, this Court may need to clarify the limits on the use of such remedies.”
Today, Justice Alito issued a similar statement “respecting the denial of the petition for writ of certiorari” in another case involving a class action settlement: Martin v. Blessing (No. 13-169). You can find his six-page statement in today’s order list, beginning on page 13 of the pdf file. It begins:
The petition in this case challenges a highly unusual practice followed by one District Court Judge in assessing the adequacy of counsel in class actions. This judge insists that class counsel “ensure that the lawyers staffed on the case fairly reflect the class composition in terms of relevant race and gender metrics.” App. to Pet. for Cert. 35a. The uniqueness of this practice weighs against review by this Court, but the meaning of the Court’s denial of the petition should not be misunderstood.
The judge is U.S. District Judge Harold Baer of the Southern District of New York, and Justice Alito writes that “[b]ased on the materials now before us, I am hard-pressed to see any ground on which Judge Baer’s practice can be defended.” [p.3]
Friday, November 15, 2013
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.
Thursday, November 14, 2013
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.
Wednesday, November 6, 2013
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:
- Emily Bazelon, Slate: Shut Up, Judge!
- Anil Kalhan (Drexel University), Dorf on Law: The Appearance of Impropriety and Partiality
- Anna Merlan, Village Voice: Appeals Court Blocks Judge Shira Scheindlin's Stop-and-Frisk Ruling, Removes Her From Case
- The New York Times, Room for Debate: The Appearance of Impartiality, featuring contributions by: Nancy Gertner (Former U.S. District Judge, District of Massachusetts); David Lat (Above the Law); Charles Ogletree (Harvard University); Deborah Rhode (Stanford University); Kermit Roosevelt (University of Pennsylvania)
More coverage here.
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.
Sunday, November 3, 2013
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:
- Judge Richard G. Kopf (U.S. District Court for the District of Nebraska), Hercules and the Umpire: A cheap shot
- Katherine Macfarlane (Louisiana State University), The Danger of Nonrandom Case Assignment: How the Southern District of New York’s 'Related Cases' Rule has Shaped the Evolution of Stop-and-Frisk Law, Michigan Journal of Race & Law (forthcoming 2014) (an article examining the district court local rule that was mentioned in the Second Circuit’s order)
- Jeffrey Toobin, The New Yorker: The Preposterous Removal of Judge Scheindlin
- Howard Wasserman (Florida International University), PrawfsBlawg: Stays and appellate benchslaps
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.
Wednesday, October 23, 2013
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).
Tuesday, October 15, 2013
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.”)
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).
Tuesday, October 1, 2013
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:
Monday, September 30, 2013
Thursday, September 12, 2013
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:
Monday, September 9, 2013
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 . . .
Friday, September 6, 2013
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).
Saturday, August 31, 2013
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.
Tuesday, August 27, 2013
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: