Friday, October 30, 2015
In the latest issue of the Yale Law Journal is a note by Mark Kelley, Saving 60(b)(5): The Future of Institutional Reform Litigation. Here’s the abstract:
Institutional reform decrees are one of the chief means by which federal courts cure illegal state and federal institutional practices, such as school segregation, constitutionally inadequate conditions in prisons and mental hospitals, and even insufficient dental services under Medicaid. The legal standards governing federal courts’ power to modify or dissolve institutional reform decrees, a crucial tool that can be used to safeguard or sabotage these decrees’ continued vitality, are rooted in Federal Rule of Civil Procedure 60(b)(5). In Horne v. Flores, the Supreme Court tweaked Rule 60(b)(5) to make it easier for state and local institutions to modify or dissolve the institutional reform decrees to which they are bound. This Note argues that Horne has introduced considerable confusion and divergence among lower court approaches to the modification and dissolution of reform decrees, and has made it too easy for institutional defendants to escape federal oversight. At the same time, however, Horne rested on legitimate policy critiques of institutional reform litigation. This Note attempts to chart a middle ground between the doctrine’s detractors and defenders by making concrete proposals about how courts should resolve the confusion introduced by Horne. These recommendations would align the institutional reform doctrine with the policy critiques highlighted by the Court in Horne while still allowing for the effective vindication of constitutional rights.
Thursday, October 29, 2015
The Institute for the Advancement of the American Legal System is sponsoring its Fourth Civil Justice Reform Summit: Creating the Just, Speedy, and Inexpensive Courts of Tomorrow. The program will be held February 25-26, 2016 at the University of Denver.
The program will include panels on both federal and state rules projects, proportionality, cooperation, and many other topics. Panelists include federal and state court judges, lawyers, academics, and other researchers.
Hat tip: Linda Sandstrom Simard
Monday, October 26, 2015
Below is the announcement for the second annual Civil Procedure Workshop, which will be held at the University of Washington in Seattle on July 14-15, 2016:
We are excited to announce the second annual Civil Procedure Workshop, to be cohosted by the University of Washington School of Law, Seattle University School of Law, and the University of Arizona James E. Rogers College of Law. The Workshop will be held at the University of Washington in Seattle on July 14-15, 2016.
The Workshop gives both emerging and established civil procedure scholars an opportunity to gather with colleagues and present their work to an expert audience. Scholars will present their papers in small panel sessions. A senior scholar will moderate each panel and lead the commentary. In addition to paper presentations, we intend to engage members of the judiciary and federal civil rulemaking bodies in discussions about current developments in procedure. Our goal is for the Workshop to strengthen the study of procedure as an academic discipline, and to deepen ties among the academy, rulemakers, and the judiciary. Confirmed participants for 2016 include Robert Bone, Sergio Campos, David Engstrom, Samuel Issacharoff, Alexandra Lahav, Alexander Reinert, the Hon. Lee Rosenthal, Joanna Schwartz, and Adam Steinman.
We welcome all civil procedure scholars to attend this Workshop. Those wishing to present a paper for discussion in the Workshop should submit a two-page abstract by January 15, 2016. While we welcome papers from both emerging and senior scholars, preference may be given to those who have been teaching for less than ten years. We will select papers to be presented by March 1, 2016. Please send all submissions or related questions to Liz Porter.
The Workshop will provide meals for registrants. Participants must cover travel and lodging costs. We will provide information about reasonably priced hotels as the date approaches.
Feel free to contact us with questions.
Friday, October 23, 2015
With the newest revisions to the Federal Rules of Civil Procedure due to take effect on December 1, 2015, a number of organizations, such as the ABA and other bar associations, are offering programs and webinars to ease the transition.
Perhaps most prominent is the "Rules Amendments Roadshow," a joint program of the American Bar Association Section of Litigation and the Duke Law Center for Judicial Studies billed as “a 13-City Tour Discussing The Most Important Federal Discovery Changes In Over A Decade.” The moderators will be Judge Lee H. Rosenthal and Professor Steven Gensler and panelists will include "local judges, magistrates, and top practitioners in each city." The "roadshow" starts in New York on November 10, continues in eleven more cities, and concludes in Miami on April 1. (No, this is not an April Fools' joke.)
The ABA is also offering a webinar entitled "The 2015 Amendments to the Federal Rules of Civil Procedure, Part 1: The Impact of Amended Rule 37(e) on E-Discovery,” on October 29, 2015 from 1:00 PM - 2:30 PM ET. The webinar faculty will be Carol Geisler, Legal Counsel, CVS/Caremark, Chicago, IL, Hon. Paul W. Grimm, US District Judge, District of Maryland, Greenbelt, MD, and Christopher M. Morrison, Partner, Jones Day, Boston, MA. The moderator will be Hon. Frank J. Bailey, US Bankruptcy Judge, District of Massachusetts, Boston, MA.
Local bar associations, such as the Tennessee Defense Lawyers Association are also offering programs.
Finally, although not a live program, the Defense Counsel Journal has an article in its October 2015 issue by Thomas Y. Allman entitled "The 2015 Civil Rules Package As Transmitted to Congress." Mr. Allman is a former General Counsel and Chair Emeritus of the Sedona Conference Working Group 1 on EDiscovery and the E-Discovery Committee of Lawyers for Civil Justice.
I recently received info on the newly redesignedSCOTUS Fellows Program. It includes one position at the Administrative Office of the US Courts which provides a unique opportunity to study and work on the Federal Rules.
Supreme Court Fellows Program – Call for Applications
The Supreme Court Fellows Commission is accepting applications through November 6, 2015, for one-year fellowships to begin in August or September 2016. The Commission will select four talented individuals to engage in the work of the Supreme Court of the United States, the Administrative Office of the United States Courts, the Federal Judicial Center, or the United States Sentencing Commission. Fellows gain practical exposure to judicial administration, policy development, and education. In each of the four placements, the fellow will be expected to produce a publishable paper and will have unique access to federal judges and to officers and staff of the federal judiciary in connection with the research project.
The fellowship placement in the Administrative Office will hold special interest to readers of this blog. As the description of placements indicates, this fellow may assist one or more of the Judicial Conference Committees in developing policies related to a variety of areas of court administration, including rules of civil procedure, criminal procedure, and evidence. This fellowship, which provides a unique vantage point for observing how federal judicial policies and rules are formulated, is designed for individuals who have an academic or practical interest in judicial administration, litigation, and legal procedure.
Fellows will receive compensation equivalent to the GS-12/1 grade and step of the government pay scale (currently $76,378) and will be eligible for health insurance and other benefits offered to employees of the federal judiciary. Appointments are full-time and based in Washington, D.C. A small group of finalists will be invited to interview with the Commission at the Supreme Court in February 2016, and finalists will be contacted on selection decisions within one to two weeks after interviews.
Thursday, October 22, 2015
Scott Dodson and Philip Pucillo have posted on SSRN a draft of their recent article, Joint and Several Jurisdiction, which will be published in the Duke Law Journal. Here’s the abstract:
Is federal diversity jurisdiction case-specific or claim-specific? Consider a state-law case in federal court between a Texas plaintiff and two defendants — one from California and the other from Texas. The complete-diversity rule taught to every first-year law student makes clear that, when the diversity defect is noted, the court lacks subject-matter jurisdiction over the action as a whole. The court cannot, therefore, proceed with either claim as long as the nondiverse claim remains. But does the court’s subject-matter jurisdiction nevertheless extend to the diverse claim, such that the case can continue if the spoiler is dismissed? This question is both pervasive and unsettled. We identify and explore two possible answers, each based on a different theory of subject-matter jurisdiction. The first we denote “joint jurisdiction ”— an all-or-nothing theory — under which the presence of a nondiverse claim contaminates the whole case and deprives the court of diversity jurisdiction over diverse claims. The second we denote “several jurisdiction” — a claim-by-claim theory — under which the court lacks subject-matter jurisdiction over the nondiverse claim but always had, and continues to have, diversity jurisdiction over the diverse claim. We show that each theory boasts jurisprudential support, leaving the doctrine ambivalent on a question that affects thousands of cases filed in federal court each year. We then offer a way to reconcile these seemingly incompatible theories and precedent: manipulation of the nonjurisdictional time-of-filing rule. Finally, we discuss how that solution potentially creates new tensions, particularly regarding the notion that a court without subject-matter jurisdiction over an action may nonetheless render a binding adjudication of claims within that action.
Saturday, October 17, 2015
Mark Leyse filed a putative class action against Bank of America after a telemarketer seeking to advertise BoA’s credit cards left a message on the landline shared by Leyse and his roommate. The message allegedly violated the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227(b)(1)(B), which prohibits any person from “initiat[ing] any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by rule or order by the [Federal Communications] Commission.”
Bank of America filed an initial Rule 12(b)(6) motion to dismiss on grounds of collateral estoppel. The district court agreed, but the Third Circuit reversed.
Bank of America then filed a second 12(b)(6) motion to dismiss on the ground that Leyse lacked statutory standing to sue because his roommate, not he, is the telephone subscriber “and intended recipient of the call, as the number was associated with [his roommate’s] name in the telemarketing company’s records.” Again, the district court dismissed, and the Third Circuit reversed.
The court first held that it was error for the district court to have considered BoA’s second 12(b)(6) motion. A dismissal for lack of statutory standing is not jurisdictional, but “is effectively the same as a dismissal for failure to state a claim” pursuant to Rule 12(b)(6). Rule 12(h)(2) provides that a second motion to dismiss for failure to state a claim “may be raised (A) in any pleading allowed or ordered under Rule 7(a); (B) by a motion under Rule 12(c); or (C) at trial” – none of which had occurred. However, the court held that the error did not require reversal:
A district court’s decision to consider a successive Rule 12(b)(6) motion to dismiss is usually harmless, even if it technically violates Rule 12(g)(2). So long as the district court accepts all of the allegations in the complaint as true, the result is the same as if the defendant had filed an answer admitting these allegations and then filed a Rule 12(c) motion for judgment on the pleadings, which Rule 12(h)(2)(B) expressly permits.
Thus, the court continued to the merits of the motion. The TCPA “was intended to combat, among other things, the proliferation of automated telemarketing calls (known as “robocalls”) to private residences, which Congress viewed as a nuisance and an invasion of privacy.”
As was forcefully stated by Senator Hollings, the Act’s sponsor, “Computerized calls are the scourge of modern civilization. They wake us up in the morning; they interrupt our dinner at night; they force the sick and elderly out of bed; they hound us until we want to rip the telephone right out of the wall.”
Accordingly, the Act “provides that a ‘person or entity’ may bring an action to enjoin violations of the statute and recover actual damages or $500 in statutory damages per violation.”
Noting a split among courts in interpreting the statutory standing to sue under this section, the Third Circuit found that Leyse fell “within the class of plaintiffs Congress has authorized to sue.”
[I]t is clear that the Act’s zone of interests encompasses more than just the intended recipients of prerecorded telemarketing calls. It is the actual recipient, intended or not, who suffers the nuisance and invasion of privacy. This does not mean that all those within earshot of an unwanted robocall are entitled to make a federal case out of it. Congress’s repeated references to privacy convince us that a mere houseguest or visitor who picks up the phone would likely fall outside the protected zone of interests. On the other hand, a regular user of the phone line who occupies the residence being called undoubtedly has the sort of interest in privacy, peace, and quiet that Congress intended to protect.
Leyse v. Bank of America Nat'l Ass'n, No. 14-4073 (3d Cir. Oct. 14, 2015).
Wednesday, October 14, 2015
Bob Klonoff has posted on SSRN a draft of his article, Class Actions in the Year 2025: A Prognosis, which will be published in the Emory Law Journal. Here’s the abstract:
In this Article, I reflect on what the federal judiciary has done in recent years, and I attempt to predict what the class action landscape will look like a decade from now. My predictions fall into several categories:
First, I discuss whether the basic class action framework — Federal Rule of Civil Procedure 23 — is likely to be revamped in the next decade. I predict that there is little chance that the basic structure of Rule 23 will change. Calls by some scholars to rewrite Rule 23 will not make headway. The only caveat to this prediction is that either Congress or the Supreme Court could repudiate so-called no injury classes — i.e., classes in which some unnamed class members suffered no harm — a result that would not change the text of Rule 23 but would adversely impact certain kinds of class actions, such as consumer cases.
Second, I examine the likely state of class action jurisprudence in the year 2025. In that regard, I make several predictions: Securities class actions will continue to flourish, but consumer, employment, and personal injury class actions will continue to decline. The Supreme Court will curtail the ability of plaintiffs to establish liability or damages through expert statistical sampling (referred to frequently as “trial by formula”). The “ascertainability” requirement imposed by the Third Circuit will be repudiated by the Supreme Court or by the Third Circuit itself. The Supreme Court will conclude, as have numerous circuits, that an unaccepted offer of judgment to a class representative pursuant to Federal Rule of Civil Procedure 68 is a legal nullity and does not moot the individual’s claim or the putative class action. Defendants will advance several arguments against class certification that, until now, have had only limited success. These will include expansive applications of Rule 23’s typicality, predominance, and superiority requirements. Although defendants will not be fully successful with these arguments, they will succeed in erecting some additional barriers to class certification. During the next decade, courts addressing class certification and the fairness of settlements will give greater weight to allegations of unethical behavior by class counsel and by counsel representing objectors to settlements. The future of class actions will ultimately lie in the hands of a small number of appellate court judges who have a special interest and expertise in aggregate litigation.
Third, I focus on the administration and resolution of class actions and offer two predictions: (1) by 2025, a significantly larger number of class action cases will go to trial than at any time since 1966; and (2) technological changes will fundamentally alter the mechanics of class action practice, offering more sophisticated tools for notice, participation by class members, and distribution of settlement proceeds.
Four amicus briefs by law professors have been filed in the Supreme Court in Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146 (to be argued November 10, 2015). Three of the law professors’ briefs support the respondent (the plaintiff class), and the fourth supports neither party.
The case has been a marathon, eight years and counting. In 2007, plaintiffs filed a class action (under Iowa state law and under Rule 23(b)(3)) and representative action (under the Fair Labor Standards Act) in the Northern District of Iowa. Plaintiffs sued on behalf of employees of Defendant Tyson Foods at its meat processing facility in Storm Lake, Iowa. The class sought unpaid overtime wages for uncompensated time spent donning and doffing clothing and protective equipment and other associated tasks.
In 2008, the district court certified both a collective action class and a Rule 23(b)(3) class, narrowing the class originally sought by the plaintiffs to include only those employees paid under a “gang time” compensation system in the Kill, Cut, or Retrim departments. Over 500 employees opted into the FLSA class. There are a few thousand members of the Rule 23(b)(3) class.
After losing the class certification motion, Tyson filed a motion to consolidate the case via multidistrict litigation with other, similar cases against Tyson. However, the Judicial Panel on Multidistrict Litigation denied consolidation because discovery was likely to “proceed on a plant-by-plant basis.”
The plaintiff class survived a motion for summary judgment and a motion to decertify the class in 2011.
After a nine-day jury trial, the jury returned a verdict for the class of $2,892,378.70. With liquidated damages, the final judgment totaled $5,785,757.40. The Eighth Circuit affirmed the judgment. Bouaphakeo v. Tyson Foods, Inc., 765 F.3d 791, 796 (8th Cir. 2014), cert. granted, 135 S. Ct. 2806 (2015).
As Tyson phrases them, the two Questions Presented in the Supreme Court are:
(1) Whether differences among individual class members may be ignored and a class action certified under Federal Rule of Civil Procedure 23(b)(3), or a collective action certified under the Fair Labor Standards Act, where liability and damages will be determined with statistical techniques that presume all class members are identical to the average observed in a sample; and
(2) whether a class action may be certified or maintained under Rule 23(b)(3), or a collective action certified or maintained under the Fair Labor Standards Act, when the class contains hundreds of members who were not injured and have no legal right to any damages.
Three of the law professors’ briefs address the first question:
(Allan Erbsen, Kevin M. Clermont, Richard D. Freer, Mark Moller, and Howard M. Wasserman)
(Jonah B. Gelbach, Stephen B. Burbank, J. Maria Glover, Arthur R. Miller, Alexander A. Reinert, Adam N. Steinman, and Tobias Barrington Wolff)
(Sergio J. Campos, Suzette M. Malveaux, David Rosenberg, Michael D. Sant’Ambrogio, Jay Tidmarsh, and Adam S. Zimmerman )
One of the law professors’ briefs addresses the second question:
Tuesday, October 13, 2015
David S. Ardia and Anne Klinefelter of the University of North Carolina-Chapel Hill School of Law have posted on SSRN their article, Privacy and Court Records: An Empirical Study, which is forthcoming in the Berkeley Technology Law Journal.
As courts, libraries, and archives move to make court records available online, the increased ease of public access raises concerns about privacy. Little work has been done, however, to study how often sensitive information appears in court records and the context in which it appears. This Article fills this gap by analyzing a large corpus of briefs and appendices submitted to the North Carolina Supreme Court from 1984 to 2000. Based on a survey of privacy laws and privacy scholarship, we created a taxonomy of 140 types of sensitive information, grouped into thirteen categories. We then coded a stratified random sample of 504 court documents in order to determine the frequency of appearance of each sensitive information type and to identify relationships, patterns, and correlations between information types and various case and document characteristics.
In this Article we present several important findings. First, court records vary substantially in the types and frequency of sensitive information they contain. Sensitive information in seven categories — “Location,” “Identity,” “Criminal Proceedings,” “Health,” “Assets,” “Financial Information,” and “Civil Proceedings” — appeared much more frequently than the other categories in our taxonomy. Second, information associated with criminal proceedings, such as witness and crime victim names, is pervasive in court records, appearing in all types of cases and records. Third, criminal cases have disproportionately more sensitive information than civil or juvenile cases. Fourth, appendices are generally not quantitatively different from legal briefs in terms of the frequency and types of sensitive information they contain, a finding that goes against the intuition of many privacy advocates. Fifth, there were no overarching trends in the frequency of sensitive information during the seventeen-year period we studied.
Although we found a substantial amount of sensitive information in the court records we studied, we do not take a position regarding what information, if any, courts or archivists should redact or what documents should be withheld from online access or otherwise managed for privacy protection. These largely normative questions must be answered based on a careful balancing of the competing public access and privacy interests. Nevertheless, we expect that this highly granular view of the occurrence of sensitive information in these North Carolina Supreme Court records will help policymakers and judges evaluate the potential harms to privacy interests that might arise from online access to court records. We also hope that scholars will draw on our taxonomy and empirical data to develop and ground normative arguments about the proper approach for balancing government transparency and personal privacy.
Monday, October 12, 2015
The Supreme Court heard oral argument in DIRECTV v. Imburgia, No. 14-462, on October 6. The issue is "Whether the California Court of Appeal erred by holding, in direct conflict with the Ninth Circuit, that a reference to state law in an arbitration agreement governed by the Federal Arbitration Act requires the application of state law preempted by the Federal Arbitration Act."
Monday, October 5, 2015
The new Supreme Court Term kicked off today with oral argument in OBB Personenverkehr AG v. Sachs. The case involves a couple of issues regarding the Foreign Sovereign Immunities Act (FSIA). Those issues are interesting in their own right, but today’s argument (transcript here) also featured some notable exchanges on personal jurisdiction, forum selection clauses, and other civil procedure topics.
Thursday, October 1, 2015
Today the Supreme Court issued its much-anticipated order list from the end-of-summer “long conference.” It granted certiorari in a few cases that folks interested in civil procedure and federal courts will want to keep an eye on:
Bank Markazi v. Peterson (No. 14-770), from the Second Circuit, is a separation-of-powers challenge to a congressional statute involving the execution of a judgment against bonds held by the Central Bank of Iran. Here is the question presented by the petitioner:
This case concerns nearly $2 billion of bonds in which Bank Markazi, the Central Bank of Iran, held an interest in Europe as part of its foreign currency reserves. Plaintiffs, who hold default judgments against Iran, tried to seize the assets. While the case was pending, Congress enacted § 502 of the Iran Threat Reduction and Syria Human Rights Act of 2012, 22 U.S.C. § 8772. By its terms, that statute applies only to this one case: to “the financial assets that are identified in and the subject of proceedings in the United States District Court for the Southern District of New York in Peterson et al. v. Islamic Republic of Iran et al., Case No. 10 Civ. 4518 (BSJ) (GWG).” Id. § 8772(b). “In order to ensure that Iran is held accountable for paying the judgments,” it provides that, notwithstanding any other state or federal law, the assets “shall be subject to execution” upon only two findings—essentially, that Bank Markazi has a beneficial interest in them and that no one else does. Id. § 8772(a)(1), (2). The question presented is:
Whether § 8772—a statute that effectively directs a particular result in a single pending case—violates the separation of powers.
Americold Logistics, LLC v. ConAgra Foods, Inc. (No. 14-1382), from the Tenth Circuit, involves how to determine the citizenship of a trust for purposes of diversity jurisdiction:
Petitioners Americold Logistics, LLC and Americold Realty Trust – a corporation and real estate investment trust, respectively – removed a case from Kansas state court to the United States District Court for the District of Kansas, asserting the parties were diverse. No party challenged the removal, and the District Court ruled on the merits of that litigation without addressing any issue relating to diversity jurisdiction. Likewise, neither party raised any jurisdictional challenge on appeal to the Tenth Circuit Court of Appeals.
The Tenth Circuit, however, sua sponte queried whether there was full diversity of citizenship among the parties. In particular, the judges challenged whether the citizenship of Americold Realty Trust, a business trust, should be determined by reference to its trustees’ citizenship, or instead by reference to some broader set of factors. This issue has deeply split courts across the country. Joining the minority of courts, the Tenth Circuit held the jurisdictional inquiry extends, at a minimum, to the citizenship of a trust’s beneficiaries in addition to its trustees’ citizenship. In this case, doing so destroyed diversity of citizenship among the parties.
The question presented by this petition is: Whether the Tenth Circuit wrongly deepened a pervasive circuit split among the federal circuits regarding whether the citizenship of a trust for purposes of diversity jurisdiction is based on the citizenship of the controlling trustees, the trust beneficiaries, or some combination of both.
MHN Government Services, Inc. v. Zaborowski (No. 14-1458), from the Ninth Circuit, is another case involving the relationship between the Federal Arbitration Act and state contract law. Here is the question presented by the petitioners:
The Federal Arbitration Act (“FAA”) provides that an arbitration agreement shall be enforced “save upon such grounds as exist at law or in equity for the revocation of any contract,” 9 U.S.C. § 2. California law applies one rule of contract severability to contracts in general, and a separate rule of contract severability to agreements to arbitrate. The arbitration-only rule disfavors arbitration and applies even when the agreement contains an express severability clause. Its application in this case conflicts with binding precedent of this Court and with opinions of four other courts of appeals.
The question presented is whether California’s arbitration-only severability rule is preempted by the FAA.
You can find coverage of today’s cert. grants from SCOTUSblog’s Lyle Denniston here.