Friday, May 27, 2016
The Seventh Circuit Court of Appeals, in an opinion by Judge Diane Wood, held that forcing an employee to agree to bring any wage-and-hour claim through individual arbitration violated the National Labor Relations Act. Lewis v. Epic Systems Corp., No. 15-2997 (7th Cir. May 26, 2016).
Epic sent an email to some employees with an agreement requiring them to bring wage-and-hour claims only through individual arbitration and to waive the right to participate in any class, collective, or representative proceeding. The email said that employees were “deemed to have accepted this Agreement” if they continued to work at Epic.
Plaintiff agreed at the time, but later sued Epic in federal court for violations of the overtime requirements of the Fair Labor Standards Act and Wisconsin law. Epic moved to compel individual arbitration.
Section 7 of the NLRA provides that “[e]mployees shall have the right to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157. The Seventh Circuit stated, “Section 7’s ‘other concerted activities’ have long been held to include ‘resort to administrative and judicial forums.’” The court held that “the phrase ‘concerted activities’ in Section 7 should be read broadly to include resort to representative, joint, collective, or class legal remedies.” Thus, “insofar as it prohibits collective action, Epic’s arbitration provision violates Sections 7 and 8 of the NLRA.”
Further, the Federal Arbitration Act did not “save the ban on collective action.” The district court’s denial of the motion to compel arbitration was affirmed.
Wednesday, May 25, 2016
The indefatigable Advisory Committee on Civil Rules met on April 14, 2016 and prepared a report to the Committee on Rules of Practice and Procedure (the Standing Committee), which will meet June 6-7, 2016. The report begins at page 251 of the Agenda book, and the draft minutes of the April 14 meeting begin at page 489 of the Agenda book.
The report has three parts. First, the Advisory Committee recommends that the Standing Committee approve proposed amendments to Rule 5 (e-service and e-filing), Rule 23 (class actions), and Rule 62 (stays of execution of judgment) for publication this summer.
Second, the Advisory Committee recommends that the Standing Committee approve two pilot projects for submission to the Judicial Conference. The first pilot project would test a system of mandatory initial disclosures that would be more robust than those currently required by Rule 26(a)(1). The second pilot project would test the effectiveness of court-wide adoption of practices to reduce “cost and delay.”
Third, the Advisory Committee:
(a) “describes proposals under active consideration for eventual publication and adoption,” including:
- a new subdivision of Rule 5.2 dealing with redaction (super exciting stuff!);
- studying “concerns about the operation of Rule 30(b)(6)(deposition of an entity)”; and
- “consideration of the Rule 81(c) provisions for demanding a jury trial after a case is removed from state court”; and
(b) briefly mentions suggestions for rules amendments that the Committee has “removed from the agenda” (i.e., rejected for now), including:
- the “separate document” requirement of Rule 58;
- suggestions to assist pro se litigants;
- amending the pleading standard in Rule 8(a)(2) (“The time has not yet come for such a project.”); and
- mandatory disclosure of third-party financing arrangements.
In future posts, I will discuss some of these developments in more detail.
Wednesday, May 18, 2016
The Supreme Court issued Spokeo, Inc. v. Robins, No. 13-1339, earlier this week. In a majority opinion unlikely to make anyone happy, the Court vacated the Ninth Circuit’s decision, which held that Robins had adequately alleged Article III standing, and remanded.
A Brief Recap
Robins’ complaint alleged that Spokeo maintained an inaccurate consumer report about him on its website, in violation of the Fair Credit Reporting Act’s requirement that consumer reporting agencies “follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.” In particular, Robins alleged that a photo purporting to be Robins on the site wasn’t him, and that the site incorrectly stated that he was in his 50s, married, employed in a professional or technical field, has children, has a graduate degree, and is in the top 10% for wealth.
The upshot of this disseminated misinformation, Robins alleged, was that when he was “out of work” and “actively seeking employment,” he encountered “[imminent and ongoing] actual harm to [his] employment prospects.”
The Majority Opinion
You wouldn’t know that Robins alleged actual harm to his employment prospects by reading the majority opinion, which didn’t mention it. Instead, the majority opinion by Justice Alito (joined by Roberts, Kennedy, and Thomas and inexplicably by Breyer and Kagan) managed to further stultify constitutional standing doctrine by seizing on the Court’s prior repetition of the phrase “concrete and particularized” in describing the “injury in fact” required for standing. The Court now finds it obvious that these are separate, distinct requirements: (1) concrete and (2) particularized (although the Court cited no case that actually discussed these terms separately). The Ninth Circuit, held the majority, applied the “particularized” branch but not the “concreteness” branch.
Tuesday, May 17, 2016
Yesterday, the Supreme Court issued a unanimous decision in Merrill Lynch, Pierce, Fenner & Smith v. Manning. Justice Kagan wrote the opinion, with Justices Thomas (joined by Justice Sotomayor) concurred in the judgment and wrote separately. The Court held that the plaintiffs' state law causes of action did not "arise under" § 27 of the Securities Exchange Act, a statute that the Court held has the same "arising under" meaning as 28 U.S.C. § 1331.
Monday, May 16, 2016
The Senate Judiciary Committee will hold hearings on Wednesday, May 18, 2016, at 10:00 a.m., on the nominations of:
Donald Karl Schott, to be United States Circuit Judge for the Seventh Circuit
Paul Lewis Abrams, to be United States District Judge for the Central District of California
Stephanie A. Finley, to be United States District Judge for the Western District of Louisiana
Claude J. Kelly III, to be United States District Judge for the Eastern District of Louisiana
Winfield D. Ong, to be United States District Judge for the Southern District of Indiana
On Thursday, May 19, 2016, at 10:00 a.m., the Committee will consider the nominations of:
Ronald G. Russell, to be United States District Judge for the District of Utah
Inga S. Bernstein, to be United States District Judge for the District of Massachusetts
Stephanie A. Gallagher, to be United States District Judge for the District of Maryland
Suzanne Mitchell, to be United States District Judge for the Western District of Oklahoma
Scott L. Palk, to be United States District Judge for the Western District of Oklahoma
Monday, May 2, 2016
AALS Section on Civil Procedure Call for Papers – 2017 AALS Annual Meeting
The AALS Section on Civil Procedure invites papers for its program on “The Roberts Court and the Federal Rules of Civil Procedure” at the AALS Annual Meeting, on January 3-7, 2017 in San Francisco. The selected paper will be presented on Thursday, January 5, and the panel will be held from 8.30AM to 10.15AM.
This panel discussion will address jurisprudential developments related to the Federal Rules of Civil Procedure under the Roberts Court. The topics will include judicial interpretation of the rules, recurrent doctrinal themes within the rules, recent and proposed amendments to the rules, and the rule making process.
Full-time faculty members of AALS member law schools are eligible to submit papers. Pursuant to AALS rules, faculty at fee-paid law schools, foreign faculty, adjunct and visiting faculty (without a full-time position at an AALS member law school), graduate students, fellows, and non-law school faculty are not eligible to submit. Please note that all faculty members presenting at the program are responsible for paying their own annual meeting registration fee and travel expenses.
PAPER SUBMISSION PROCEDURE:
One paper will be selected for presentation at the AALS annual meeting. There is no formal requirement as to the form or length of proposals. However, more complete drafts will be given priority over abstracts, and the presenter is expected to have a draft for commentators one month prior to the beginning of the AALS conference.
The paper will be selected by the Section’s Executive Committee. Please submit only anonymous papers by redacting from the submission the author’s name and any references to the identity of the author. The title of the email submission should read: “Submission – 2017 AALS Section on Civil Procedure.”
Please email submissions to the Section Chair Simona Grossi, Professor of Law at: email@example.com on or before August 19, 2016.