Civil Procedure & Federal Courts Blog

Class Action Conference at GW

All Civil Procedure teachers are invited to attend a Symposium on Class Actions to be held at the George Washington University Law School on March 7 and 8.  Many of the leading academics and class action practitioners in the nation will be participating on the five panels discussing the many controversial issues attending modern class action litigation.  The Symposium is jointly sponsored by the James F. Humphreys Complex Litigation Center at GW and by Public Justice.  Papers prepared for the Symposium by panelists will later be published in the GW Law Review.

 

There is no registration fee, but if you plan to attend please notify Frances Arias [[email protected]] at GW of your intentions so that the GW Law School can plan for your visit.  If you have questions about the event, please feel free to contact Professor Roger Trangsrud at GW [[email protected] and 202-994-6182].

 

A summary of the program is set out below.

 

 

                Schedule for Class Action Conference at GW on March 7-8

 

                Thursday

 

2:00 p.m. - Introductory Remarks [Burns Moot Court Room at GW Law]

 

2:15 - 3:45 p.m. - Panel One  

 

                The Proper Process to Follow before a Certification Decision is Made

 

                What evidentiary showing must the plaintiffs make before the trial court may certify a class action?  To what extent should the court assess the merits of the plaintiff’s case in making the certification decision?  Is this consistent with the Seventh Amendment?  To what extent should the trial court  evaluate the expert witness testimony of the parties before making the certification decision?  Does Daubertg apply and, if so, should Daubert hearings be held at this point?  Should pre-certification discovery be regulated or not?

 

                Moderator: Rick Marcus [Hastings]

 

                Panelists: Geoff Hazard [Hastings], Linda Mullenix [Texas], George Gordon [Dechert], Tom Sobol [Hagens Berman], Gerson Smoger [Smoger & Asso.]

 

4:00 - 5:30 p.m. - Panel Two

 

                Common Questions:  The Proper Relationship of 23(a)(2), 23(b)(3), and 23(c)(4) 

 

                Did the Supreme Court in Dukes properly interpret the 23(a)(2) common question requirement?  What must plaintiffs prove to show that common questions predominate over noncommon questions?  If class counsel has not asserted all claims available to class members, does that justify denying certification?  Should class actions be certified which will resolve some common issues, but which will later require individual adjudication of the remaining noncommon issues?  For common issues to predominate, must plaintiffs show that some proportion of the class suffered the relevant form of the injury?

 

                Moderator: Alan Morrison [GW]

 

                Panelists: Bob Bone [Texas], Josh Davis [San Francisco], Eric Cramer [Berger & Montague], Ted Boutros [Gibson Dunn]

 

 

                Friday

 

9:00 - 10:30 a.m. - Panel Three

 

                Class Actions and Remedies

 

                To what extent, if at all, can plaintiffs seek monetary remedies in b(1) or b(2) class actions?  Should class actions be certified if it is likely impracticable to distribute some or all of any resulting monetary settlement or judgment to the class?  Can the amount of the class recovery be determined by statistical sampling or other approximating methods or is individual proof of each class member’s loss necessary?  Should cy pres and fluid damage remedies by allowed in class actions and, if so, when and subject to what rules?

 

                Moderator: Bill Rubenstein [Harvard]

 

                Panelists: Ed Sherman [Tulane], Bob Klonoff [Lewis & Clark], Jay Tidmarsh [Notre Dame], Arthur Bryant [Public Justice]

 

 

10:45 a.m. - 12:15 p.m. - Panel Four

 

                Settlement Class Actions and Settlement Approval  

 

                Should the standard for class certification be different for purposes of settlement than for purposes of litigation?  If so, how?  Should the rules for approving class action settlements be altered?  If so, how?  Need every member of a settlement class have a viable claim?  How can the system ensure fairness, adequacy, and reasonableness of class action settlements without leaving legitimate settlements vulnerable to unjustified objections?

 

                Moderator: Sam Issacharoff [NYU]

 

                Panelists: Howard Erichson [Fordham], Roger Trangsrud [GW], Brian Fitzpatrick [Vanderbilt],  Elizabeth Cabraser [Lieff, Cabraser], David Sorensen [Berger & Montague]

 

 

2:00 - 3:30 p.m. - Panel Five

 

                Arbitration and Class Actions

 

                Should any form of class action be allowed in arbitration proceedings?  Are there any limits on the ability of employers or merchants to restrict the ability of employees or consumers to pursue class action litigation?  Should arbitration clauses be enforced even where doing so would prevent the effective vindication of substantive rights?  Does it matter that such substantive rights arise out of state or federal law?  Should legislation be passed or Rule 23 amended to define when negative value claims can be pursued within or without the arbitration process?

 

                Moderator: Rich Freer [Emory]

 

                Panelists: Myriam Gilles [Cardozo], Deborah Hensler [Stanford], Paul Bland [Public Justice], Jon Jacobson [Wilson, Sonsini], Jon Cuneo [Cuneo Gilbert]

RJE

Federal Court Management Statistics for Fiscal Year 2012 Released

From Third Branch News:

Federal court statistical profiles are available for the nation’s 12 courts of appeal and 94 district courts for fiscal year 2012, the 12-month period ending September 30, 2012.

Federal Court Management Statistics also provides national totals for the appellate and district courts, allowing the statistical totals of each individual court to be compared to a national average.

The tables present data based on the number of authorized judgeships, and provide rankings among the appellate and district courts.

Note that the Caseload Management Statistics do not include the Federal Judicial Caseload Statistics or the Judicial Business of the U.S. Courts report for FY 2012.  Those figures have not yet been released.

--PM

Meier on Summary Judgment (Again!)

Professor Luke Meier has recently posted to SSRN his paper “Probability, Confidence, and Matsushita: The Misunderstood Summary Judgment Revolution.”

The paper can be found here:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2205901

The paper argues that Matsushita has been erroneously interpreted in requiring a shift of power from jury to judge.

--PM

Lahav on Klerman on Personal Jurisdiction

Now available on the Courts Law section of JOTWELL is an essay by Alexandra Lahav (Connecticut) entitled Economic Analysis of Personal Jurisdiction. It reviews an article by Daniel Klerman (Southern California), Personal Jurisdiction and Product Liability, 85 S. Cal. L. Rev. ___ (forthcoming 2013).

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Lederman: Article III Standing in the SCOTUS Same-Sex Marriage Cases

Over at SCOTUSblog, Prof. Marty Lederman (Georgetown) has a deep dive into the Article III standing issues in Hollingsworth v. Perry (docket no. 12-144) and United States v. Windsor (docket no. 12-307). Links to the entire series—Understanding standing: The Court’s Article III questions in the same-sex marriage cases—below:

• Part I
• Part II
• Part III
• Part IV
• Part V
• Part VI
• Part VII

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SCOTUS Cert Grants on SLUSA: The Troice Troika

On Friday the Supreme Court granted certiorari in three cases on the Securities Litigation Uniform Standards Act (SLUSA). At issue is the scope of SLUSA’s 15 U.S.C. § 78bb(f)(1)(A), which blocks class actions based on state law that involve “a misrepresentation or omission of a material fact in connection with the purchase or sale of a covered security.” Links below:

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Symposium at Stanford Law School: Lessons from the Chevron Ecuador Litigation

The Stanford Journal of Complex Litigation is having its inaugural symposium on Friday, February 8 at Stanford Law School. From the announcement:

The ongoing litigation between Chevron and the people of Lago Agrio, Ecuador regarding alleged environmental harms dating from Texaco’s oil exploration and extraction in Ecuador now spans three continents and nearly twenty years; and concerns the largest judgment ever awarded in an environmental lawsuit, eighteen billion dollars.  The litigation has been called both “a shakedown,” and “a landmark victory,” yet it continues to be litigated around the world and divide both the bar and the academy.  What are the consequences of this case?  With complex litigation becoming increasingly transnational, what general lessons can be drawn from this case?  These questions are at the heart of SJCL’s inaugural symposium. 

Details and a full list of sessions and speakers at the link below:

Download SJCL Symposium

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Lederman: More on Article III Standing in the SCOTUS Same-Sex Marriage Cases

Now on SCOTUSblog is a second post by Prof. Marty Lederman (Georgetown) on the Article III standing issues in Hollingsworth v. Perry (docket no. 12-144) and United States v. Windsor (docket no. 12-307). The post is entitled Understanding standing: The Court’s Article III questions in the same-sex marriage cases (II).

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Devins & Prakash: "Reverse Advisory Opinions"

Professors Neal Devins (William & Mary) and Saikrishna Prakash (Virginia) have posted on SSRN a draft of their Essay, Reverse Advisory Opinions, which will appear in the University of Chicago Law Review. Here’s the abstract:

Federal courts have increasingly issued demands and requests for legal advice from the executive branch and other parties. Without offering any justification, federal judges simply assume that they may seek legal advice from virtually anyone. These practices warrant further scrutiny. First, we believe that the federal courts lack the power to compel judicial advice, from parties to a case or otherwise. To begin with, the federal courts cannot demand opinions of Congress or the President, for Article III never grants any such power. Indeed, such a power would be inconsistent with the independence and equality that each branch enjoys. Nor can courts compel parties to supply legal arguments because such a power is inconsistent with the autonomy that parties enjoy in litigation. Courts can no more demand that parties address particular legal questions than they can demand that parties file suits. Second, with respect to nonparties, the federal courts generally lack authority even to request legal opinions. The Supreme Court’s practice of calling for the views of the solicitor general is as unjustified as it has been long-lived. The lack of justification is crucial, for current practice suggests no limits. Courts might request the advice of law professors or the National Rifle Association; they might even poll former solicitors general of the United States about what the law is. We believe this power to request legal advice is alien to Article III’s adversarial system and is instead a feature of civil law systems and congressional committees, where the inquisitors have much more latitude. The only time the federal courts may request legal advice from nonparties is when a party refuses to address a legal question deemed relevant by the court and the court asks a nonparty to provide an adversarial argument.

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Sperino: "The Tort Label"

Prof. Sandra Sperino (Cincinnati) has posted on SSRN a draft of her article, The Tort Label. Here is the abstract:

Courts and commentators often label federal discrimination statutes as torts. Since the late 1980s, the courts increasingly applied tort concepts to these statutes. This Article discusses how courts placed employment discrimination law within the organizational umbrella of tort law without examining whether the two areas share enough theoretical and doctrinal affinities.

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Lederman on Article III Standing in the SCOTUS Same-Sex Marriage Cases

Now on SCOTUSblog is the first of several posts by Prof. Marty Lederman (Georgetown) on the Article III standing issues in Hollingsworth v. Perry (docket no. 12-144) and United States v. Windsor (docket no. 12-307). The post is entitled Understanding standing: The Court’s Article III questions in the same-sex marriage cases (I).

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Sterk on J. McIntyre v. Nicastro, Personal Jurisdiction & Choice of Law

Prof. Stewart Sterk (Cardozo) has posted on SSRN a draft of his article, Personal Jurisdiction and Choice of Law, which will appear in the Iowa Law Review. Here’s the abstract:

A New Jersey resident, injured while working in his home state, seeks relief from the United Kingdom manufacturer of a shearing machine marketed at trade shows held at various American locations. What reason is there to prevent New Jersey from providing a forum for its injured resident? In J. McIntyre Machinery, Ltd. v. Nicastro, a plurality of the United States Supreme Court invoked both “individual liberty” and “sovereign authority” to justify its conclusion that New Jersey lacked personal jurisdiction over the British defendant. But the plurality’s failure to identify the liberty and sovereignty interests at stake have left personal-jurisdiction jurisprudence even more conceptually muddled and practically confused than it was before the Court’s most recent foray into the area.

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The Latest on Federal Question Jurisdiction: From Merrell Dow to Grable to... Gunn v. Minton?

The Supreme Court heard oral argument today in Gunn v. Minton—the latest in the Court’s long-running struggle to define when a federal law ingredient in a state law cause of action is sufficient for federal question jurisdiction (cases "arising under" federal law). 

Here’s the oral argument transcript, which includes this comment from Justice Scalia [p.16 of the transcript]:

"Well, I like -- I like bright-line rules. In fact -- you know, I thought Holmes had it right. It doesn't arise under unless the cause of action is a Federal cause of action."

Justice Thomas is on record as being receptive to the so-called Holmes approach (in his Grable concurrence, 545 U.S. at 320-21). He is not alone, apparently.

--A

UCLA Symposium In Honor Of Stephen Yeazell - Twenty-First Century Litigation: Pathologies and Possibilities

The 2013 UCLA Law Review Symposium, "Twenty-First Century Litigation: Pathologies and Possibilities, A Symposium in Honor of Professor Stephen Yeazell," will take place on Thursday, January 24 and Friday, January 25 at UCLA School of Law.

It is free and open to the public but advance RSVP is required. The announcement and full schedule is available here.

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Preis on Implied Injunctive Relief in Constitutional Cases

Jack Preis (University of Richmond) has posted In Defense of Implied Injunctive Relief in Constitutional Cases.

When plaintiffs seek relief in constitutional cases, an important question of judicial power often arises: if Congress has neither authorized nor prohibited the courts from issuing a particular form of relief, may the courts issue the relief nonetheless? At present, the answer to this question mostly turns on the form of relief sought: if the plaintiff seeks damages, the court will refuse relief unless Congress has specifically authorized it; in contrast, if the plaintiff seeks an injunction, the court will refuse relief only if Congress has specifically barred it. 

These contradictory approaches have troubled scholars for some time. One way to resolve the asymmetry would be to extend the availability of monetary relief such that both remedies would be available in cases of congressional silence. Another option, however, would be to curtail injunctive relief such that neither remedy would be available in cases of congressional silence. This latter option might be particularly attractive given that the Supreme Court generally views implied causes of action as an usurpation of congressional power.

In this Article, I defend the federal courts’ power to issue injunctive relief in constitutional cases without explicit congressional authorization. The defense rests on two proofs — both largely historical. First, I show that the availability of equitable remedies has never been tightly tethered to the availability of damages, and that we should not therefore strive for symmetry between the two causes of action. Second, I show that both Congress and the federal courts have, since the Founding, viewed the existence of subject matter jurisdiction alone as implied authorization to issue injunctive relief.

 

RJE

Ben-Shahar on the Economics of Arbitration and Access to Justice

Prof. Omri Ben-Shahar (Chicago) has posted on SSRN a draft of his article, Arbitration and Access to Justice: Economic Analysis.  Here’s the abstract:

Mandatory arbitration clauses in consumer contracts are widely regarded as problematic because they limit consumer’s access to judicial forums, to fair procedures, and potentially to any kind of remedy. But rather than looking at consumers as a group, I examine which sub groups of consumers are affected by this limitation more than others. I argue that in most circumstances, access to courts benefits the elite, not the weak. It is a species of open-access policy that has an unintended regressive effect. Paradoxically, rules that limit the use of pre-dispute arbitrations clauses hurt, rather than protect, weaker consumers, as they mandate a regressive reallocation. I also consider the role of class actions, and whether weak consumers are potentially the indirect beneficiaries of class action litigation. This argument has theoretical merit, but it, too, is limited in ways that are often unappreciated.

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(Hat Tip: Larry Solum)

Green on Erie

Prof. Michael Steven Green (William & Mary) is celebrating Erie’s 75th anniversary year with daily “Erieblogging.” His kick-off is here, and you can follow the rest at Prawfsblawg. The most recent installment (as of this post) is Day 10.

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Vladeck on Pendent Appellate Jurisdiction and the Collateral Order Doctrine

Prof. Steve Vladeck (American University) has posted on SSRN a draft of his essay, Pendent Appellate Bootstrapping, which will be published in the Green Bag. He also has a Prawfsblawg post on the topic. Here’s the abstract:

Although it has become a settled feature of federal courts jurisprudence, the “collateral order doctrine” first articulated by the Supreme Court in 1949 continues to provoke judicial and academic criticism. "Accordingly," as a unanimous Court stressed in 2006, "we have not mentioned applying the collateral order doctrine recently without emphasizing its modest scope," lest it come to "overpower the substantial finality interests [the final judgment rule] is meant to further."

Notwithstanding the strong policy judgment enmeshed within the final judgment rule and the consistent rhetoric of the Court's collateral order opinions, this short essay demonstrates that the Justices have in fact effected a dramatic (if largely unnoticed) expansion of the collateral order doctrine in recent years — one that, by its nature, applies specifically to private suits seeking damages against government officers in their personal capacity. Starting from the now-settled holding that a government officer’s official immunity is an immediately appealable collateral order (at least as to the relevant legal questions), the Court has used the obscure and obtuse doctrine of “pendent appellate jurisdiction” to sub silentio shoehorn into interlocutory appellate review of a trial court’s contested denial of official immunity (1) whether the plaintiff’s complaint satisfies the applicable pleading standards; (2) the elements of the plaintiff’s cause of action; and (3) the very existence of such a cause of action. More to the point, these expansions have come with exceptionally little analysis, with two of these three jurisdictional holdings buried in footnotes.

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SCOTUS decision in Already v. Nike: Article III, mootness, and... it's gotta be the shoes

Today the Supreme Court issued its decision in Already, LLC v. Nike, Inc., covered earlier here and here. The unanimous opinion by Chief Justice Roberts begins: “The question is whether a covenant not to enforce a trademark against a competitor’s existing products and any future ‘colorable imitations’ moots the competitor’s action to have the trademark declared invalid.”

Recognizing that “[a] case becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for purposes of Article III—when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome” [Slip Op. 4], Chief Justice Roberts proceeds to apply the voluntary cessation doctrine. [Slip Op. 6-14.] He concludes:

Already’s only legally cognizable injury—the fact that Nike took steps to enforce its trademark—is now gone and, given the breadth of the covenant, cannot reasonably be expected to recur. There being no other basis on which to find a live controversy, the case is clearly moot. [Slip Op. 13-14]

There was also no need to remand the case for further proceedings: “The uncontested findings made by the District Court, and confirmed by the Second Circuit, make it absolutely clear this case is moot.” [Slip Op. 15]

Justice Kennedy authors a concurring opinion that is joined by Justices Thomas, Alito, and Sotomayor. He writes [Concurring Op. 2]:

This brief, separate concurrence is written to underscore that covenants like the one Nike filed here ought not to be taken as an automatic means for the party who first charged a competitor with trademark infringement sud­denly to abandon the suit without incurring the risk of an ensuing adverse adjudication. Courts should be well aware that charges of trademark infringement can be disruptive to the good business relations between the manufacturer alleged to have been an infringer and its dis­tributors, retailers, and investors. The mere pendency of litigation can mean that other actors in the marketplace may be reluctant to have future dealings with the alleged infringer.

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Thomas on Solomon on the Civil Jury

Now available on the Courts Law section of JOTWELL is an essay by Suja Thomas (Illinois) entitled Considering the Civil Jury. It reviews a recent article by Jason Solomon (William & Mary), The Political Puzzle of the Civil Jury, 61 Emory L.J. 1331 (2012). Suja's review begins:

The civil jury is in this year.  In The Political Puzzle of the Civil Jury, Jason Solomon examines the role of the civil jury as a political institution—in other words, the role of the jury in democracy.  Seeking to begin a discussion in the literature on whether the civil jury serves as a political institution, Solomon exhaustively and critically examines the justifications for the civil jury in this role.

--A