Tuesday, January 11, 2011
We covered earlier the Supreme Court’s grant of certiorari in two cases on personal jurisdiction (the first such cases the Court has taken in two decades). The cases were argued today.
Goodyear Dunlop Tires Operations, S.A. v. Brown (No. 10-76) presents the question:
Whether a foreign corporation is subject to general personal jurisdiction, on causes of action not arising out of or related to any contacts between it and the forum state, merely because other entities distribute in the forum state products placed in the stream of commerce by the defendant.
J. McIntyre Machinery, Ltd. v. Nicastro (No. 09-1343) presents the question:
Does a "new reality" of "a contemporary international economy" permit a state to exercise, consonant with due process under the United States Constitution, in personam jurisdiction over a foreign manufacturer pursuant to the stream-of-commerce theory solely because the manufacturer targets the United States market for the sale of its product and the product is purchased by a forum state consumer?
Here are links to the oral argument transcripts:
Here are links to SCOTUSblog’s casefiles, where you can find the briefs in these cases:
Monday, January 10, 2011
Melanie Goff and Richard Bales (Northern Kentucky University) have posted An Analysis of an Order to Compel Arbitration? To Dismiss or to Stay? to SSRN.
The Federal Arbitration Act makes arbitration agreements judicially enforceable. Often, however, one party to a dispute would prefer to litigate, and files suit on the underlying claim. The party preferring arbitration may then file a motion to compel arbitration. If the court grants the motion, the court must then decide whether to stay the suit during the pendency of the arbitration proceedings, or whether to dismiss the suit outright. Though this issue has arisen thousands of times, in probably every federal district court in the country, there is no clear answer as to whether courts should stay or dismiss. This article argues that courts should stay a case when some points of dispute between the parties fall outside the arbitration agreement and cannot be resolved by the arbitrator, and that otherwise courts should have the discretion to dismiss the case in favor of arbitration.
(1) Whether the Fifth Circuit correctly held, in direct conflict with the Second Circuit and district courts in seven other circuits and in conflict with the principles of Basic Inc. v. Levinson, 485 U.S. 224 (1988), that plaintiffs in securities fraud actions must satisfy not only the requirements set forth in Basicto trigger a rebuttable presumption of fraud on the market, but must also establish loss causation at class certification by a preponderance of admissible evidence without merits discovery.
(2) Whether the Fifth Circuit improperly considered the merits of the underlying litigation, in violation of both Eisen v. Carlise & Jacquelin, 417 U.S. 156 (1974), and Federal Rule of Civil Procedure 23, when it held that a plaintiff must establish loss causation to invoke the fraud-on-the-market presumption even though reliance and loss causation are separate and distinct elements of security fraud actions and even though proof of loss causation is common to all class members.
Links to the lower court opinion and the cert. stage briefs can be found at SCOTUSblog’s casefile.
The extent to which a court must consider the merits of class claims at the certification stage is an area of considerable uncertainty, and it is a significant issue in Wal-Mart v. Dukes (now pending before the Supreme Court). Although the merits-at-certification issue is not mentioned explicitly in Wal-Mart’s questions presented, it figures prominently in the en banc Ninth Circuit’s discussion of Rule 23(a)’s commonality requirement in that case (see 603 F.3d 571, 580-598), and the Supreme Court directed the parties to brief whether the Wal-Mart class action satisfies Rule 23(a).
Wednesday, January 5, 2011
Available in print and at Akron Law Review is a symposium issue entitled, The Future of Summary Judgment. The issue includes the following articles prepared in conjunction with the 2010 Annual Meeting Program of the AALS Section on Litigation:
· Bernadette Bollas Genetin, Summary Judgment and the Influence of Federal Rulemaking (Foreword), 43 Akron L. Rev. 1107
· Steven S. Gensler, Must, Should, Shall, 43 Akron L. Rev. 1139
· Edward Brunet, Six Summary Judgment Safeguards, 43 Akron L. Rev. 1165
· Stephen B. Burbank, Summary Judgment, Pleading, and the Future of Transsubstantive Procedure, 43 Akron L. Rev. 1189
· Linda S. Mullenix, Dropping the Spear: The Case for Enhanced Summary Judgment Prior to Class Certification, 43 Akron L. Rev. 1197
· Jeffrey O. Cooper, Summary Judgment in the Shadow of Erie, 43 Akron L. Rev. 1245
Monday, January 3, 2011
As covered earlier, the Supreme Court recently granted certiorari in Wal-Mart Stores, Inc. v. Dukes, an employment discrimination class action whose certification had been affirmed by the en banc Ninth Circuit.
This week’s AALS annual meeting in San Francisco is featuring a “Hot Topics” panel on the case, entitled Weighing in on Wal-Mart: The Implications of Dukes v. Wal-Mart for the Future of Employment Discrimination and Class Action Law.
The panel is on Friday, January 7 from 8:30-10:15 AM.