September 21, 2011
Scholarship Opportunities in Curacao
Curacao is a newly devolved independent country in the Carribbean. Folks on the International Committee of SEALS, recognizing that devolution of governance (Libya, South Sudan, etc.) presents lots of interesting legal scholarship opportunities, is in the process of organizing a 5 day faculty group research mini-conference in and on Curacao. Details (courtesy Patrick Hugg, Loyola New Orleans) follow the break; Wendy Greene (Cumberland) and I (Rick Bales, NKU) are members of the Committee, though I'm a newbie so Wendy's more in-the-know). Anyone interested putting together a labor/employment panel and, perhaps, co-authoring an article?
rbA sub-group of colleagues has been moving forward with an idea raised at our breakfast meeting in Hilton Head, and the concept is now in more concrete form, needing your support and suggestions to make it happen. With your input, we hope to make a submission for approval to the SEALS Board soon. Colin Crawford, Wendy Greene, and David Ritchie have been instrumental in this, and we appreciate their vision and labors.
The proposal represents an existential initiative for our committee, organizing
a 5 day faculty group research mini-conference in the Caribbean (on Curacao, a newly devolved independent country) focused on the broad and current topic, "Transition to Independence," including the many related sub-issues flowing from it, such as constitution building, energy security, environmental protection, public international law, language rights, changes in legal system/governance, etc. From South Sudan to Libya to Curacao, devolution of governance presents numerous real issues for scholarship today.
The conference will be conducted at the Caribbean based University of Curacao law school, hosted by our SEALS International Committee and member Dean Peter Klik of the Curacao law school. The conference participants will engage in comparative and cooperative research and writing projects, presentations in the colloquium format, guest lectures, and field trips to relevant sites (related to all issues, e.g. environmental, energy locales and institutions of government.)
The conference will invite participation from faculty on an "open door" basis, with attendees arriving and departing as they wish. Participants will be invited to deliver reports on their scholarship conducted prior to the conference, and more research and collaboration will continue at the conference and thereafter. As mentioned above, we hope to bring in some guest experts.
Papers and articles produced from these collaborative works will be presented at the SEALS annual conference and/or published in a US international law journal.
Subjects of study will be organized by days to enable travelers to focus efforts within permissible time frames.
Financial costs will be minimized to help launch the program in its first year.
Curacao is a favorable international location for several reasons: its new government, its stable and secure environment, a friendly law school, its beauty, and especially because it is only about 3 hours from Charlotte or Miami. The entire journey from most of our homes will likely be quite doable in one day.
Considering practical requirements, we expect to present the conference in March or April of 2012. We recognize that in its first year, the group participating will be relatively small, but we consider this a workable foundation on which to continue a stronger program in the following year.
September 20, 2011
Ninth Circuit Applies Wal-Mart in Costco Class Action: Reverses and Remands
Last Friday, the Ninth Circuit issued the first appellate court opinion that I've run across applying Wal-Mart v. Dukes to an appeal of class certification. (Earlier in the month, a district court had applied Wal-Mart to deny class certification in a discriminatory lending case against Wells Fargo--that's the only other case I know about). The Ninth Circuit case, Ellis v. Costco, was very similar to Wal-Mart: a nationwide class action against a big box store, this time Costco, by women who alleged that the company discriminated against women in promotions. The district court had certified the class, and the Ninth Circuit reversed, holding that the court had not applied the correct test.
Here's the bottom line:
(1) Because at least one named Plaintiff [a current employee] alleges a concrete injury that is both directly traceable to Costco’s allegedly discriminatory practices and is redressable by both injunctive relief and monetary damages, . . . we affirm the district court’s ruling on standing. (2) We vacate and remand the district court’s ruling as to “commonality” under Rule 23(a) of the Federal Rules of Civil Procedure. The district court failed to conduct the required “rigorous analysis” to determine whether there were common questions of law or fact among the class members’ claims. . . . Instead it relied on the admissibility of Plaintiffs’ evidence to reach its conclusion on commonality. (3) We vacate the district court’s ruling as to “typicality” under Rule 23(a), because the district court failed to consider the effect that defenses unique to the named Plaintiffs’ claims have on that question. . . .(4) We affirm the district court’s ruling that [the current employee] is an adequate class representative under Rule 23(a). As a current employee who continues to be denied promotion, [she] has incentive to vigorously pursue injunctive relief as well as monetary damages on behalf of all the class members. . . . However, we vacate the district court’s finding that [two former employees] could adequately represent the class, because they were former employees and had no incentive to pursue injunctive relief. (5) In light of Wal-Mart’s rejection of the “predominance” test, . . .the district court must consider whether the claims for various forms of monetary relief will require individual determinations and are therefore only appropriate for a Rule 23(b)(3) class. Thus, we vacate the district court’s certification of the class under Rule 23(b)(2).
On the commonality question, the plaintiffs faced some of the same battles as faced by the plaintiffs in Wal-Mart; in that the alleged discrimination may have occurred at least in part through the operation of gender stereotyping by individual store-level decisionmakers rather than through operation of a clear policy that sanctioned discrimination or decisions made at the headquarters level. After Wal-Mart, this conclusion is not very surprising, and on remand, there will be a number of hard questions to answer about who made the decisions and how those decisions were shaped.
The Ninth Circuit also considered whether the named plaintiffs could satisfy 23(a)'s typicality requirement. Costco asserted that it had unique defenses for each of the named plaintiffs, and those unique defenses would damage the interest of the other members of the class by dominating the issues. Those unique defenses were: one former employee wasn't promoted because she asked to defer promotion; the other former employee was unqualified and chose to transfer to a store with limited promotional opportunities; and the current employee was not as qualified as other applicants and didn't work in a region in which women were underrepresented in promotions. The Ninth Circuit did not conclude that these defenses were different from the defenses to liability for other class members--in fact, they sound very typical of the usual defenses to me, such that finding them atypical would mean that there could never be a class action in a discrimination case--but because the district court hadn't really considered the issue at all, the Ninth Circuit remanded for new consideration.
On the question of certification under 23(b), the Ninth Circuit's analysis was fairly limited to ordering reconsideration based on the test announced in Wal-Mart. The important piece that the opinion added was a note about punitive damages. The Ninth Circuit suggested that a claim for punitive damages connected to a claim for injunctive and declaratory relief might be permissible under 23(b) even though the punitive damages are monetary. The reason is that the test for punitive damages focuses on the actions of the employer and the employer's state of mind; individual defenses, and facts about individual cases will not be an issue.
Overall, not too surprising after Wal-Mart. The hard work is for the district judge on remand.
Secunda on Public/Private Workplace Privacy
Our own Paul Secunda (Marquette; visiting Wisconsin) has just posted on SSRN his article The Constitutional Infiltration of Public and Private Workplace Privacy Law. This article builds on the impressive array of articles Paul has written on public-sector workplace speech/privacy, and here extends his analysis to the private sector. Here's the abstract:
One of the more pressing questions in this age of workplace technological innovation concerns how much privacy employees should have in physical and electronic locations in the workplace. An important related question is whether public sector and private sector employees, who have different legal status under the federal constitution’s state action doctrine, should enjoy the same level of workplace privacy rights. Recently, in the Fourth Amendment workplace privacy case of City of Ontario v. Quon, the United States Supreme Court considered both of these questions. Quon involved alleged privacy violations by a city police department when it conducted an audit of text messages on an officer’s city-issued pager.
In a cryptic decision, Justice Kennedy held for a unanimous court that assuming, without deciding, the employee had a reasonable expectation of privacy in the pager, the city's search of the pager was reasonable under two possible legal tests. First, under the plurality test enunciated in O’Connor v. Ortega, it was reasonable because it was motivated by a legitimate work-related purpose and was not excessive in scope. Second, under the test outlined by Justice Scalia in his concurring opinion in that same case, it was reasonable because it would be considered “reasonable and normal” in the private sector workplace. To varying degrees, both of these analyses suggest that workplace privacy in the public and private sectors should be treated the same.
Rather than elevating private-sector privacy rights to the public-sector level, however, Quon suggests that public employee workplace privacy rights should be reduced to the level of employees in the private sector. In this manner, the Court has employed constitutional concepts counter-intuitively to decrease the level of privacy protections for public sector workers. Maintaining that public sector workers are entitled to greater levels of privacy protections based on the text of the constitution, the power of the government as employer, and the critical oversight role public employees play in American democracy, this article argues for a two-step workplace privacy analysis which first focuses on the purpose of the search and then applies presumptively the Fourth Amendment’s warrant requirement to those searches undertaken for investigatory purposes.