Wednesday, March 30, 2016
Today on the Courts Law section of JOTWELL is Suja Thomas’ essay, Redefining Efficiency In Civil Procedure. Suja reviews Brooke Coleman’s recent article, The Efficiency Norm, 56 B.C. L. Rev. 1777 (2015).
Tuesday, March 29, 2016
My latest article, The Rise and Fall of Plausibility Pleading?, has just been published in the Vanderbilt Law Review. It builds on some of my earlier work on pleading (here and here), focusing on the Supreme Court’s post-Iqbal decisions on pleading standards (e.g., Johnson v. City of Shelby; Wood v. Moss; Matrixx Initiatives, Inc. v. Siracusano). Here’s the abstract:
The Supreme Court's 2007 decision in Bell Atlantic Corp. v. Twombly and its 2009 decision in Ashcroft v. Iqbal unleashed a torrent of scholarly reaction. Commentators charged these decisions with adopting a new pleading regime, "plausibility pleading," that upended the notice-pleading approach that had long prevailed in federal court. Whether a complaint could survive a motion to dismiss — it was argued — now depends on whether the court found the complaint plausible, allowing courts to second-guess a complaint’s allegations without any opportunity for discovery or consideration of actual evidence. Lower courts began to cite Twombly and Iqbal at a remarkably high rate, and empirical work revealed their effect on both dismissal rates and litigant behavior.
Although Twombly and Iqbal were troubling on many levels, the rise of a newly restrictive form of plausibility pleading was not inevitable. There was — and still is — a path forward that would retain the notice-pleading approach set forth in the text of the Federal Rules themselves and confirmed by pre-Twombly case law. This Article describes this reading of Twombly and Iqbal, and explains how more recent Supreme Court pleading decisions are consistent with this understanding. It is crucial, however, that these post-Iqbal decisions and the approach to pleading they reflect receive the same attention that accompanied Twombly, Iqbal, and the rise of plausibility pleading. Otherwise the narrative that Twombly and Iqbal compel a more restrictive pleading standard may become further entrenched, compounding the adverse effects of those problematic decisions.
Friday, March 25, 2016
This week the Supreme Court issued its decision in Tyson Foods, Inc. v. Bouaphakeo, covered here, here, and here. Tyson Foods is one of several important class action cases on the Court’s docket this Term—and the second one decided so far. Like Campbell-Ewald back in January, the Tyson Foods decision is generally good news for proponents of class actions. By a 6-2 vote, the Court upheld class certification under Rule 23(b)(3).
Justice Kennedy wrote the majority opinion, joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan. Chief Justice Roberts wrote a separate concurring opinion, which was joined in part by Justice Alito. Justice Thomas wrote a dissenting opinion, which Justice Alito joined. All the opinions are worth a read, but below are a few highlights from Justice Kennedy’s majority opinion.
First, Justice Kennedy emphasized that the presence of some individualized issues is not fatal to Rule 23(b)(3)’s predominance requirement:
The predominance inquiry “asks whether the common, aggregation-enabling, issues in the case are more prevalent or important than the non-common, aggregation-defeating, individual issues.” [2 W. Rubenstein, Newberg on Class Actions], §4:49, at 195–196. When “one or more of the central issues in the action are common to the class and can be said to predominate, the action may be considered proper under Rule 23(b)(3) even though other important matters will have to be tried separately, such as damages or some affirmative defenses peculiar to some individual class members.” 7AA C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §1778, pp. 123–124 (3d ed. 2005) (footnotes omitted).
Justice Kennedy also provided some important guidance on the Supreme Court’s 2011 Wal-Mart decision, clarifying that “Wal-Mart does not stand for the broad proposition that a representative sample is an impermissible means of establishing class-wide liability.” He recognized the practical reality that “[i]n many cases, a representative sample is ‘the only practicable means to collect and present relevant data’ establishing a defendant’s liability. Manual of Complex Litigation §11.493, p. 102 (4th ed. 2004).” And:
In a case where representative evidence is relevant in proving a plaintiff’s individual claim, that evidence cannot be deemed improper merely because the claim is brought on behalf of a class. To so hold would ignore the Rules Enabling Act’s pellucid instruction that use of the class device cannot “abridge . . . any substantive right.” 28 U. S. C. §2072(b).
The Court ultimately did not resolve the second question in Tyson Foods, which was originally framed as “whether a class may be certified if it contains ‘members who were not injured and have no legal right to any damages.’” After noting that Tyson Foods had “reframe[d] this argument” in its merits brief, Justice Kennedy declined to address it “because the damages award has not yet been disbursed, nor does the record indicate how it will be disbursed.” The Court therefore remanded the case, recognizing that Tyson Foods “may raise a challenge to the proposed method of allocation when the case returns to the District Court for disbursal of the award.” In his final paragraph of analysis, however, Justice Kennedy noted that the potential for “uninjured class members” to recover from the class judgment appeared to be a problem “of [Tyson Foods’] own making,” because Tyson Foods had argued against having bifurcated liability and damages proceedings.
For additional coverage, check out:
- Perry Cooper (Bloomberg)
- Lyle Denniston (SCOTUSblog)
- Alexandra Lahav (Mass Tort Litigation Blog)
- Adam Liptak (New York Times)
Monday, March 21, 2016
Michael Morley (Barry) has posted De Facto Class Actions? Injunctive Relief in Election Law, Voting Rights, and Other Constitutional Cases to SSRN.
When a court holds that a legal provision is unconstitutional; inconsistent with, or preempted by, federal law; or invalid under an agency's organic statute or a framework statute such as the Administrative Procedures Act, the court must decide whether to grant injunctive relief and, if so, how broad that relief should be. In particular, the court must decide whether to issue a Plaintiff-Oriented Injunction or a Defendant-Oriented Injunction. A Plaintiff-Oriented Injunction bars the government defendants from enforcing the challenged provision only against the plaintiffs in the case or affected members of plaintiff organizations. A Defendant-Oriented Injunction, in contrast, completely bars the government defendant from enforcing the challenged provision against anyone in the state or nation.
Many courts tend to award Defendant-Oriented Injunctions in election law and voting rights cases, even when they are not brought as class actions, without recognizing or addressing most of the pertinent issues that choice implicates. Individual plaintiffs typically lack Article III standing to seek relief protecting the rights of third parties not before the court. And such third parties may neither fall within the court’s personal jurisdiction nor wish to challenge the provision at issue. Defendant-Oriented Injunctions in non-class cases also raise asymmetric preclusion concerns, undermine the policy considerations underlying Rule 23, and allow trial courts to enforce their rulings beyond the geographic limits of their jurisdiction.
This Article presents a new framework for determining the proper scope of injunctive relief in election law, voting rights, and other constitutional cases. First the court should assess whether granting the requested relief solely to the individual plaintiffs would create unconstitutional disparities concerning fundamental rights in violation of Equal Protection principles, although this seldom, if ever, should be the case. Second, after confirming that limiting relief solely to the individual plaintiffs would be constitutional, the court should then determine whether such a Plaintiff-Oriented Injunction would be proper under the challenged statute or regulation itself by applying traditional severability principles. If the challenged provision can be applied coherently, and the entity that enacted the provision still would have intended for it to be enforced, even with the plaintiffs excluded from its scope, then a Plaintiff-Oriented Injunction would be the proper remedy. Otherwise, a Defendant-Oriented Injunction is required.
This Article further contends that, when plaintiffs file a non-class case seeking to enjoin a legal provision, the court should determine at the outset whether a Plaintiff- or Defendant-Oriented Injunction would be necessary if the plaintiffs prevail. If a Defendant-Oriented Injunction would be required, the court should order that the case proceed as a Rule 23(b)(2) class action so that all right holders who stand to benefit from a favorable ruling are included as class members. Conducting such an analysis at the outset of the case eliminates most of the concerns implicated by Defendant-Oriented Injunctions.
If you have been gnashing your teeth over Senate Republicans' stated refusal to vote on the nomination of Judge Merrick Garland to the Supreme Court, here is some information that may make you feel a little better.
- Judge Garland was a member of the Judicial Conference of the United States, which voted to approve the amendments to the FRCP that took effect on Dec. 1, 2015. (I and many others have described those amendments as "anti-plaintiff.")
- I cannot discover if Judge Garland actually is or has been a member of the conservative Federalist Society, but he has numerous links to the Society:
- He listed in the "Experts" link of the website of the Federalist Society. (It should be noted that the website states that a person’s listing on the Experts page does not imply any “endorsement or relationship between the person and the Federalist Society.”)
- Judge Garland moderated a panel called "Changing the Federal Rules of Civil Procedure: Has the Time Come?" on Dec. 9, 2010 hosted by the Federalist Society at the National Press Club in Washington, D.C. One of the panelists argued that discovery costs should routinely be shifted to the party requesting the discovery (something that defense interests have lobbied for ever since, with partial success in the amendment to Rule 26(c)(1)(B)). Another panelist argued that Rule 4(b), allowing a subpoena to issue against a defendant without a preliminary hearing, is unconstitutional. A third panelist described Twombly and Iqbal as “perfectly sensible cases.” Of course, merely by moderating the panel, Judge Garland cannot be understood to be endorsing any of these views.
- By my count, Judge Garland has also moderated about ten other panels hosted by The Federalist Society. See, e.g., here and here. In fact, at the panel on the FRCP described above, the person who introduced Judge Garland as the moderator said to him, “You are a repeat moderator for Federalist Society events.”
President Obama’s political calculation in nominating Judge Garland may be even shrewder than anyone’s given him credit for.
Friday, March 18, 2016
Bryan Lammon (Toledo) has posted Dizzying Gillespie: The Exaggerated Death of the Balancing Approach and the Inescapable Allure of Discretion in Appellate Jurisdiction to SSRN.
In Gillespie v. U.S. Steel Corp., the Supreme Court appeared to endorse a balancing approach to federal appellate jurisdiction, whereby courts could weigh the costs and benefits of an interlocutory appeal in any case. But the Court soon disavowed the balancing approach and today eschews case-by-case determinations of appellate jurisdiction. The common perception, then, is that Gillespie and the balancing approach are dead. But the balancing approach persists in the Courts of Appeals. In a variety of contexts, these courts have relied on the balancing approach to hear appeals. They’ve constructed doctrines based on the balancing approach. And they engage in case-by-case balancing in determining their jurisdiction. Contrary to popular belief, the balancing approach is alive and well in the Courts of Appeals.
The balancing approach’s persistence — seemingly in direct defiance of the Supreme Court’s mandate — suggests that appellate judges cannot resist wielding some discretion when defining their jurisdiction. This allure of discretion poses a challenge to the primary goal of the literature on interlocutory appeals: reform. If reform is to happen, it will likely take the form of categorical rules. But if what the balancing approach’s persistence suggests is true — if appellate judges cannot completely forego using discretion in defining their jurisdiction — that threatens to undermine the certainty, predictability, and ease of application of any rules that reform might develop. I thus propose a largely novel approach to interlocutory appeal reform: a combination of categorical rules and a discretionary catchall.
Joe Seiner has posted on SSRN a draft of his essay, Tailoring Class Actions to the On-Demand Economy, which will be published in the Ohio State Law Journal. Here’s the abstract:
In O’Connor v. Uber, 2015 WL 5138097 (N.D. Cal. Sept. 1, 2015), a federal district court permitted a class-action case to proceed on the question of whether 160,000 drivers were misclassified by their employer as independent contractors rather than employees. The case has garnered widespread interest, making headlines across the country. Yet it represents only one of many class-action cases currently pending against technology companies in the modern economy. Indeed, similar systemic claims have already been brought against Yelp, GrubHub, Handy, Crowdflower, Amazon, and many others.
The courts have largely floundered in their efforts to address the proper scope of class cases brought against corporations in the on-demand economy. This is likely the result of a lack of clarity in this area as well as the unique fact patterns that often arise with technology-sector claims. Nothing has been written on this issue in the academic literature to date, and this paper seeks to fill that void in the scholarship.
Navigating the statutes, case law, and procedural rules, this Essay proposes a workable five-part framework for analyzing systemic claims brought in the technology sector. This paper sets forth a model for the courts and litigants to follow when evaluating the proper scope of these cases. The Essay seeks to spark a dialogue on this important — yet unexplored — area of the law.
Thursday, March 17, 2016
There’s a lot of attention right now on President Obama’s nomination of Merrick Garland to the U.S. Supreme Court. But I wanted to quickly flag last week’s unanimous decision on diversity jurisdiction. Justice Sotomayor’s opinion in Americold Realty Trust v. ConAgra Foods, Inc. begins:
This case asks how to determine the citizenship of a “real estate investment trust,” an inanimate creature of Maryland law. We answer: While humans and corporations can assert their own citizenship, other entities take the citizenship of their members.
The Court reaffirmed the “oft-repeated rule” that unincorporated entities take on the citizenship of all of their members (citing Carden v. Arkoma Associates, 494 U. S. 185 (1990)), and held that the “members” of this sort of Maryland-law entity included all of its shareholders:
In Maryland, a real estate investment trust is an “unincorporated business trust or association” in which property is held and managed “for the benefit and profit of any person who may become a shareholder.” Md. Corp. & Assns. Code Ann. §§8–101(c), 8–102 (2014). As with joint-stock companies or partnerships, shareholders have “ownership interests” and votes in the trust by virtue of their “shares of beneficial interest.” §§8–704(b)(5), 8–101(d). These shareholders appear to be in the same position as the shareholders of a joint-stock company or the partners of a limited partnership—both of whom we viewed as members of their relevant entities. See Carden, 494 U. S., at 192–196; see also §8–705(a) (linking the term “beneficial interests” with “membership interests” and “partnership interests”). We therefore conclude that for purposes of diversity jurisdiction, Americold’s members include its shareholders.
Justice Sotomayor concluded by recognizing—but rejecting—the argument that the citizenship of an unincorporated entity should be determined the same way as a corporation:
We also decline an amicus’ invitation to apply the same rule to an unincorporated entity that applies to a corporation—namely, to consider it a citizen only of its State of establishment and its principal place of business. See Brief for National Association of Real Estate Investment Trusts 11–21. When we last examined the “doctrinal wall” between corporate and unincorporated entities in 1990, we saw no reason to tear it down. Carden, 494 U. S., at 190. Then as now we reaffirm that it is up to Congress if it wishes to incorporate other entities into 28 U. S. C. §1332(c)’s special jurisdictional rule.
People clearly have very strong feelings about Donald Trump and his candidacy for President. His supporters like that he tells it how it is, and his detractors like that he is exposing the Republican Party for what it really is.
But, really. Both sides are missing a yuge upside to The Donald's campaign: This guy is generating law school final exam fact patterns like nobody's business.
Teach contracts? Maybe you want to test whether a court would enforce a promise to pay the legal fees of a rally attendee who roughs up a protester. Or maybe you just want a good old-fashioned fraud question.
Teach federal courts? Maybe you want to test whether the Secret Service can be sued for assaulting a journalist at a Trump rally.
Teach con law? Maybe you want to test the free speech rights of protesters vs. rally attendees.
Teach property? It's all takings, all the time.
But maybe you don't want an exam full of issue spotters. No problem: I have some nice policy issues for you:
Teach civ pro? Discuss Donald Trump's claim that he doesn't settle lawsuits because he always wins in court.
Yes, The Donald pretty much has the whole first year covered. He's practically teaching across the curriculum.
I haven't even started in the bonanza that he's given us for some upper level courses, like the obvious Election Law, Immigration Law, and International Trade issues. Perhaps that will have to be for another post...
Wednesday, March 2, 2016
Simona Grossi (Loyola Los Angeles) has posted The Claim Prism to SSRN.
The years 1848 and 1938 were landmark years in the history of American procedural law. The first marked the advent of code pleading, and the second introduced the Federal Rules of Civil Procedure. Both developments were a product of reform movements that addressed what the reformers believed to be a procedural crisis generated by the inefficacy of the procedural system under attack. The goal was to create a system of procedure that was both efficient and instrumental to the vindication of substantive rights. In part, each crisis reflected a tension between formalism—the need for rules—and pragmatism—the need for flexibility. Hence, the early codes offered a code-based system that was structured but significantly less so than the common law system it replaced. The Federal Rules aimed to do the same in response to the codes. The difficulty facing both sets of reformers was that their respective tasks of reform required the imposition of rules and at the same time required a pragmatic but principled approach to applying those rules. It seems though that a rule-based system eventually drifts toward the rules and away from pragmatism. Thus, at some point the rules of code pleading came to dominate the instrumental goals of that system. The same appears to be happening with the law of federal courts, including both the Federal Rules and doctrinal procedural law beyond those rules. I believe we are now in the midst of a procedural crisis, but it is not one that requires a new set of rules. Rather it is one that requires a readjustment of the way we think about the current rules and doctrines. This article invites a rethinking of the law of federal courts, including both the rules and the doctrines. It invites a return to the principles that originally animated the Federal Rules, and to the idea of natural lawyering and judging that inspired Charles Clark. The article builds upon the idea of a convenient litigation unit as central to the dispute resolution mission of federal courts, that is, saying what the law is, adhering to the rule of law, and enforcing the checks and balances of our constitutional system.