Friday, December 31, 2010

Decision of Interest: Seventh Circuit Orders Injunction of "Copycat" Class Action

Last month, a Seventh Circuit panel ordered an Illinois district court to enjoin a class action that had been filed in California by the same attorneys whose earlier class action in Illinois was unsuccessful. The California judge had allowed the class action to proceed, rejecting the defendant’s argument that it was collaterally estopped by the unsuccessful Illinois class action. In Thorogood v. Sears, Roebuck & Co., 624 F.3d 842 (7th Cir. 2010), the Seventh Circuit wrote in an opinion authored by Judge Posner:

The judge in California thus was wrong; Murray's suit is barred by collateral estoppel. But because of the cost of responding to discovery, and the erroneous but unappealable ruling permitting discovery in Murray's suit, Sears has no adequate remedy at law against a litigation aimed at coercing a settlement by running up Sears's discovery expense.

Abuse of litigation is a conventional ground for the issuance of an injunction under the All Writs Act, e.g., In re Martin-Trigona, 737 F.2d 1254, 1262 (2d Cir.1984), because without an injunction a defendant might have to plead the defense of res judicata or collateral estoppel in a myriad of jurisdictions in order to ward off a judgment, and would be helpless against settlement extortion if a valid such defense were mistakenly rejected by a trial court.

The plaintiff’s petition for rehearing and rehearing en banc (which was denied) prompted a second order from the Seventh Circuit panel, available here or on Westlaw at 2010 WL 4890698. It begins:

[I]n view of the accusations leveled in the petition by the plaintiff's lawyer, Clinton A. Krislov, against the panel's decision, we have decided that a further statement, beyond merely reporting the denial of the petition, would be helpful to readers of the panel opinion (624 F.3d 842, 2010 WL 4286367, Nov. 2, 2010; our earlier opinions in this protracted litigation are reported at 547 F.3d 742 and 595 F.3d 759), readers of the petition for rehearing—and perhaps even Mr. Krislov, whose accusations are over the top, as we shall now explain, and who may wish to moderate his fury.


(Hat Tip: Shaun Shaughnessy)

December 31, 2010 in Class Actions, Recent Decisions | Permalink | Comments (0)

Thursday, December 30, 2010

Brunet on Six Summary Judgment Safeguards

Edward Brunet (Lewis & Clark Law School) has posted Six Summary Judgment Safeguards to SSRN.

Summary judgment is under attack. Critics have called summary judgment unconstitutional, overused, a radical rule derived from more modest origins, and ineffectual. One rarely hears anyone willing to praise summary judgment. Existing summary judgment discourse appears moody and negative. Nevertheless, summary judgment provides numerous advantages and efficiencies. Summary judgment helps settlement chances by clarifying factual and legal issues and decreasing risk. A denial of the motion creates a settlement premium by increasing the costs and risk. In addition several “safeguards” exist that prevent erroneous grants of summary judgment. These safeguards include (1) the discretionary ability of the trial judge to deny summary judgment by identifying a single disputed factual issue; (2) robust de novo appellate review; and (3) a liberal ability to call a helpful “time-out” available under Rule 56(f) to take a focused quantum of discovery essential to combat a summary judgment request. Other potential safeguards, including (1) the weighing of inferences favoring the non-movant; (2) allowing the non-movant to introduce inadmissible evidence; and (3) a “handle with care” label applicable to only selected types of cases, work less well.


December 30, 2010 in Federal Courts, Recent Scholarship | Permalink | Comments (0)

Tuesday, December 21, 2010

Duke Law Journal Special Symposium Issue: 2010 Civil Litigation Review Conference

Now in print and available here is a Special Symposium Issue of the Duke Law Journal arising out of the May 2010 Civil Litigation Review Conference, which was sponsored by the U.S. Judicial Conference's Advisory Committee on Civil Rules and covered earlier here. Here's what's in the issue:

John G. Koeltl, Introduction, Progress in the Spirit of Rule 1, 60 Duke L.J. 537

John H. Beisner, Discovering a Better Way: The Need for Effective Civil Litigation Reform, 60 Duke L.J. 547

Paul D. Carrington, Politics and Civil Procedure Rulemaking: Reflections on Experience, 60 Duke L.J. 597

Steven S. Gensler, Judicial Case Management: Caught in the Crossfire, 60 Duke L.J. 669

Patrick E. Higginbotham, The Present Plight of the United States District Courts, 60 Duke L.J. 745

Emery G. Lee III & Thomas E. Willging, Defining the Problem of Cost in Federal Civil Litigation, 60 Duke L.J. 765

Dan H. Willoughby, Jr., Rose Hunter Jones & Gregory R. Antine, Sanctions for E-Discovery Violations: By the Numbers, 60 Duke L.J. 789


December 21, 2010 in Conferences/Symposia, Federal Rules of Civil Procedure, Recent Scholarship | Permalink | Comments (0)

Monday, December 20, 2010

E-Marriage Trends Panel at AALS

For those interested in how internet technology influences jurisdiction and the law, there is an interesting panel this year at the AALS:

Hot Topics Panel at the AALS
E-Marriage:  Emerging Trends Meet the Law

Mae Kuykendall          (MSU College of Law)                 Moderator
Adam Candeub          (MSU College of Law)                 Presentation of the E-Marriage Concept
Larry Ribstein            (Illinois College of Law)               Critical Analysis
Anita Bernstein          (Brooklyn Law School)                Commentary on Marriage Essentials
Monu Bedi                (Stetson School of Law)               The Military Context
Aviva Abramovsky     (Syracuse College of Law)            State Export of Other Legal Arrangements
June Carbone            (UMKC School of Law)                 Redefining Law and Geography

Background is available at the Legal E-Marriage website:    It includes a working paper first posted on SSRN in October 2009, advocating full modernization of the historical precedent of proxy precedent through the use of modern communications technology, and forthcoming in the University of Michigan Journal of Law Reform.

The panel explores the likelihood that technology, modern-day mobility, and patterns in affiliation will produce increasing numbers of marriage formalizations that do not strictly conform to a requirement of physical presence by all parties in the granting jurisdiction.  Technology likely will be increasingly seen as a natural means of accessing laws across jurisdictions and for deepening ceremonial moments by combining across distance the factors that the parties value.  For gay couples, the factors driving interest in distance marriage ceremonies are the embargo in many states on official marriage for them and their wish for the presence in their home city of friends and family for a formal, "real" ceremony.  For other couples, the factor could be a wish to have a marriage in their new home location, with a religious figure from their childhood presiding by remote connection.  For couples who are separated by distance, combined with military duties, illness, or limited means, the factor is the ability to marry when the time and need for their marriage has become apparent to them.  Other couples would like to do destination weddings to exotic locales, but still rely upon the marriage procedures and official recordation of their home state.  The likely trend, the history of marriages across borders and the existing scholarship on the importance of the state's playing a facilitative role given its monopoly over marriage access, and the need for consistency, clarity, and predictability in state treatment of marriages that depart from the letter of the statutes will be examined and assessed against critique.

Among the issues the panel will explore are 1) the practical value to a couple of an official marriage ceremony in a state that will deny recognition to the marriage, 2) the potential for backlash in the instance of gay marriage, 3) the legal and long-term cultural acceptability of limiting relief from the physical presence requirement to couples either chosen by state statutory law (active duty military, prisoners, the moribund) or clerk discretion, 4) prudent forms that state legislation might take, 5) the incentives for states to pass legislation modernizing marriage procedure for a mobile society, and 6) the risks that states will withhold recognition to marriages on the basis of the procedure, despite being willing to recognize the substance, of a marriage authorized by another state.

Program:      Hot Topic Program - E-Marriage: Emerging Trends Meet the Law
Date/Time:  01/07/2011, 4:00 pm-5:45 P. M.
Place:            Hilton (Room Not Yet Known; please note that the AALS organizers assigned the panel to this room).


December 20, 2010 in Conferences/Symposia | Permalink | Comments (0)

Burbank & Wolff on Shady Grove

Now in print (and available here) is Redeeming the Missed Opportunities of Shady Grove, 159 U. Penn. L. Rev. 17 (2010), by Professors Stephen Burbank (Pennsylvania) and Tobias Wolff (Pennsylvania). The article begins:

Few subjects in the field of Procedure are characterized by greater legal abstraction than the collection of doctrines that govern the relationship between the federal and state courts. The grand experiment by which the drafters of the Constitution “split the atom of sovereignty,” as Justice Kennedy memorably put it, has not always produced readily administrable doctrines for the actual business of running parallel and overlapping judicial systems. The Court’s efforts to harmonize the operation of those systems through the Erie doctrine and its interpretations of the Rules Enabling Act—the statute that both authorizes and limits the Federal Rules of Civil Procedure—have been most successful when undertaken with an informed awareness of social dynamics and consequences. But successful harmonization of the judicial systems has been the exception, not the rule.

Two related problems under the Enabling Act cry out for pragmatism informed by both knowledge of history and realism about contemporary conditions, but have languished for decades without proper resolution. The first involves a broad interpretive question: how can the limitations on rulemaking authority contained in the Act be applied in a manner that reflects the separation-of-powers concerns that animated them while also exhibiting respect for the state regulatory arrangements that govern much of our economic and social activity? The Supreme Court has not yet provided a useful answer to that question. Instead, it has often relied on a rigid formalism that creates perverse incentives, leading the Court to give some Federal Rules implausibly broad interpretations in order to apply federal law while emptying others of content in order to avoid an Enabling Act challenge.

The second problem involves the intersection of the Enabling Act with class action practice: following the 1966 amendments to Federal Rule of Civil Procedure 23 and the ascendance of the class action to a position of central importance in the enforcement of many regulatory policies, how can Rule 23 be squared with any reasonable account of the Enabling Act’s prohibition against rules that abridge, enlarge, or modify substantive rights? The prospect of class certification is the single most important factor in the dynamics of litigation or settlement in any proceeding in which class treatment is on the table. Certification can transform unenforceable negative-value claims into an industry-changing event and dramatically alter the litigation or settlement value of high-stakes individual claims. After almost half a century of doctrinal development under modern Rule 23, the possibility that the entire endeavor may have unfolded in violation of the Enabling Act seems increasingly compelling, but the disruptive consequences of such a conclusion would be unacceptable.

Shady Grove Orthopedic Associates v. Allstate Insurance Co., a closely watched case decided in the 2009–10 Term, presented the Supreme Court of the United States with an opportunity to speak to both issues. Shady Grove was a federal diversity case involving a potential conflict between a provision of New York law that prohibits the award of penalties or statutory damages on a classwide basis unless expressly authorized, and Federal Rule 23, which broadly authorizes federal courts to certify, manage, and hear class action proceedings. Sadly, the case shed little light. In a fractured opinion written for a divided Court, Justice Scalia held that Rule 23 displaced New York’s law on the issue of classwide penalty liability. In the portion of his opinion that spoke for a majority, Justice Scalia offered an interpretation of Rule 23 that found a conflict with New York law where none need exist. And when speaking for a plurality, he provided an account of federal and state policies on aggregate litigation that ignored the practical realities of the modern class action and the animating impulses behind it, an account that more accurately reflects class action practice in 1938 than in 2010. There are some valid insights in the plurality opinion dealing with the proper interpretive approach to the Enabling Act, but they are eclipsed by oversimplification and overwhelmed by the tide of confusion that characterizes the rest of the opinion. Shady Grove called for a restrained and enlightened interpretation of both the Enabling Act and Rule 23, but the Justices did not deliver.



December 20, 2010 in Recent Scholarship, Supreme Court Cases | Permalink | Comments (0)

Thursday, December 16, 2010

BP Litigation and Parallel Proceedings

The Blog of the Legal Times has a posting today about the implications of parallel proceedings in criminal and civil court given the recent suits that the DOJ has filed against BP regarding the oil spill.


December 16, 2010 in Federal Courts, Mass Torts, MDLs | Permalink | Comments (0)

Monday, December 13, 2010

Three SCOTUS Cert. Grants on Federal Preemption

The Supreme Court granted certiorari on Friday in three cases that raise the question of federal preemption of state-law tort liability in claims involving generic drugs. The cases, which the Court consolidated, are Actavis Elizabeth, L.L.C. v. Mensing (09-1039); Actavis, Inc. v. Demahy (09-1501); and PLIVA, Inc. v. Mensing (09-993). Links are to SCOTUSblog’s case files for each case, where you can find links to the docket, lower court opinions, and cert-stage briefs.


December 13, 2010 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Friday, December 10, 2010

Lahav Summarizes SCOTUS Class Action cert grants

Over at the Mass Tort Litigation Blog, Alexandra Lahav has a great post on The Coming Revolution in Class Actions in which she gives a brief overview of the class action cases that the Supreme Court will hear this term.


December 10, 2010 in Class Actions | Permalink | Comments (0)

Tuesday, December 7, 2010

Clermont on the Baycol Case

Kevin Clermont (Cornell Law School) has posted Class Certification's Preclusive Effects to SSRN. 

In September 2010, the Supreme Court granted certiorari in the controversial Baycol litigation. The central question will be whether, subsequent to a denial of class certification, preclusion can prevent an absentee from seeking to certify another class action on a similar claim. This Article answers that question in the affirmative, while warning that the preclusion is very limited in scope. It arrives at this answer by analogizing to the established doctrine of jurisdiction to determine no jurisdiction.


December 7, 2010 in Class Actions, Recent Scholarship, Supreme Court Cases | Permalink | Comments (0)

Spencer on Pre-Litigation Preservation & Spoliation

Prof. Benjamin Spencer (Washington & Lee) has posted on SSRN a draft of his article, The Preservation Obligation: Regulating and Sanctioning Pre-Litigation Spoliation in Federal Court, which is forthcoming in the Fordham Law Review. Here’s the abstract:

The issue of discovery misconduct, specifically as it pertains to the pre-litigation duty to preserve and sanctions for spoliation, has garnered much attention in the wake of decisions by two prominent jurists whose voices carry great weight in this area. In Pension Committee of University of Montreal Pension Plan v. Bank of America Securities, Judge Shira Scheindlin - of the Zubulake e-discovery cases - penned a scholarly and thorough opinion setting forth her views regarding the triggering of the duty to preserve potentially relevant information pending litigation and the standards for determining the appropriate sanctions for various breaches of that duty. Not long afterwards, Judge Lee Rosenthal - Chair of the Judicial Conference Committee on the Rules of Practice and Procedure (the Standing Committee) and former Chair of the Civil Rules Advisory Committee - issued an opinion (Rimkus Consulting Group, Inc. v. Cammarata ) describing her understanding of many of the same issues touched on in Pension Committee. Both of these opinions have come at a time when the legal community is looking for better and more consistent guidance regarding the preservation obligations attendant to prospective litigation in the federal courts. Unfortunately, although other courts may draw some guidance from these two opinions, the fact is that variation among district courts and among the circuits will persist as long as policing pre-litigation preservation obligations remains largely the product of common law regulation via the inherent power of the courts.

Given this state of affairs, the time is ripe for a uniform federal approach to the pre-litigation duty to preserve and sanctions for spoliation. After reviewing the existing frameworks for determining the duty to pre-serve and imposing sanctions that prevail among the federal courts, this Article will explore how the Federal Rules of Civil Procedure might be amended to define and enforce pre-action preservation obligations more effectively and consistently across jurisdictions.



December 7, 2010 in Discovery, Recent Scholarship | Permalink | Comments (0)

Monday, December 6, 2010

SCOTUS Grants Cert. in Dukes v. Wal-Mart Class Action

The Supreme Court granted certiorari today in Wal-Mart Stores, Inc. v. Dukes (No. 10-277). Of the questions presented in the petition, it granted cert. only as to Question I:

“Whether claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2)—which by its terms is limited to injunctive or corresponding declaratory relief—and, if so, under what circumstances.”

In addition, the Court directed the parties to brief and argue the following question:

“Whether the class certification ordered under Rule 23(b)(2) was consistent with Rule 23(a).”

SCOTUSblog’s case file is available here, which contains links to the Ninth Circuit’s opinion below and the cert-stage briefs.


December 6, 2010 in Class Actions, Recent Decisions, Supreme Court Cases | Permalink | Comments (1)

NYTimes article highlights litigation financing

The New York Times has a feature about the burgeoning business of litigation financing.  This article focuses on a firm that finances divorce litigation.


December 6, 2010 in Current Affairs | Permalink | Comments (0)