Civil Procedure & Federal Courts Blog

SCOTUS Cert Grant on Habeas Review of Unexplained State Court Decisions

Today the U.S. Supreme Court granted certiorari in Wilson v. Sellers, which presents the following question:

Did this Court's decision in Harrington v. Richter, 562 U.S. 86 (2011), silently abrogate the presumption set forth in Ylst v. Nunnemaker, 501 U.S. 797 (1991) - that a federal court sitting in habeas proceedings should "look through" a summary state court ruling to review the last reasoned decision - as a slim majority of the en banc Eleventh Circuit held in this case, despite the agreement of both parties that the Ylst presumption should continue to apply?

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.

 

 

 

 

SCOTUS Cert Grant on Whether FRAP 4(a)(5)(C) is Jurisdictional

Today the U.S. Supreme Court granted certiorari in Hamer v. Neighborhood Housing Services of Chicago, which presents the following question:

Whether Federal Rule of Appellate Procedure 4(a)(5)(C) can deprive a court of appeals of jurisdiction over an appeal that is statutorily timely, as the Second, Fourth, Seventh, and Tenth Circuits have concluded, or whether Federal Rule of Appellate Procedure 4(a)(5)(C) is instead a nonjurisdictional claim-processing rule because it is not derived from a statute, as the Ninth and D.C. Circuits have concluded, and therefore subject to equitable considerations such as forfeiture, waiver, and the unique-circumstances doctrine.

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.

 

 

 

SCOTUS Cert Grant on Supplemental Jurisdiction & 1367(d)'s Tolling Provision

Today the U.S. Supreme Court granted certiorari in Artis v. District of Columbia, which presents the following question:

Section 1367 of Title 28 authorizes federal district courts in certain circumstances to exercise supplemental jurisdiction over claims arising under State law.

Section 1367 further provides that "[t]he period of limitations for any [such] claim ...shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period." 28 U.S.C. § 1367(d).

The question presented is whether the tolling provision in §1367(d) suspends the limitations period for the state-law claim while the claim is pending and for thirty days after the claim is dismissed, or whether the tolling provision does not suspend the limitations period but merely provides 30 days beyond the dismissal for the plaintiff to refile.

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.

 

 

 

 

Republicans Introduce Sweeping Federalization of Tort Law, Limiting Recovery to Victims

The Republicans in Congress are intent on expropriating ordinary citizens’ right to sue wrongdoers and allowing corporations and other defendants to violate the law without consequence.   

Not content to protect corporations from accountability by hobbling class actions and intimidating plaintiffs' lawyers with mandatory Rule 11 sanctions, Republicans are going for the full monty: federalized so-called “tort reform” (or what I call “tort elimination”).

Without a hearing, H.R. 1215  (Download HR1215) goes to straight to markup in the House Judiciary Committee this Tuesday.  The bill was sponsored by Rep. Steve King (R-IA 4th Dist.). 

H.R. 1215 has the Orwellian name of “Protecting Access to Care Act of 2017” (because all Republican-sponsored bills about the civil justice system are named just the opposite of what they would actually do to ordinary citizens).  The name of this bill should be “Protecting Doctors and Hospitals from Liability for Wrongdoing and Protecting Insurance Companies from Having to Pay Legitimate Claims.”

Although Republicans supposedly care about “states’ rights,” this bill would eliminate (by preempting) vast swaths of state tort law.  Among the many draconian provisions of the bill:

• It would impose a uniform 3-year statute of limitations on “health care lawsuits.”* States would be free to have a shorter one, but not a longer one.
• It would impose a uniform $250,000 limit on noneconomic damages.
• The bill would not limit economic damages, but it would allow states to limit economic damages, noneconomic damages, and the total amount of damages.
• Naturally, “the jury shall not be informed about the maximum award for noneconomic damages.” Because then they might at last understand what “tort reform” means.
• The bill would eliminate joint-and-several liability. This could deprive an innocent injured person of full compensation, while shielding a wrongdoing defendant from paying for an injury he helped to cause.
• “Any party” would be allowed to introduce evidence of collateral source benefits.
• An award of future damages over $50,000 would be required, at the request of “any party,” to be paid in periodic payments.
• The bill would completely release health care providers (as defined) from any liability in a products liability action for prescribing a product approved by the FDA.

Finally, no Republican-sponsored civil justice bill would be complete without denigrating plaintiffs’ attorneys and making it even more uneconomical for plaintiffs’ attorneys to represent clients.  This bill goes so far as to call the payment to attorneys of an agreed-upon fee a “conflict of interest.”  The bill would give the court the power to restrict a contingent fee.  And “in no event shall” the contingent fee exceed 40% of the first $50,000 recovered, 33-1/3% of the next $50,000, 25% of the next $500,000, and 15% of any amount in excess of $600,000.  

So now the federal government would be dictating to the states what attorneys’ fees they could allow.  Those limits would apply even in settlement, mediation, or arbitration.

Really, guys?  This bill isn’t even getting a hearing?  Maybe to talk about its practical elimination of citizens’ ability to sue or the fact that the bill is a gift to the insurance industry?  Maybe to talk about the experience that many states, swept up in “tort reform” over the last several decades, have had with similar provisions (many of which have been held unconstitutional)?  How about the fact that the bill slavishly follows the positions of the American Tort Reform Association and the shadowy American Legislative Exchange Council?

H.R. 1215 joins five other bills introduced in the past few weeks that tilt the table in favor of corporate defendants in litigation.  Is there any item on the corporate defense wish list that we haven’t seen introduced in Congress yet?

It is possible, though, that this bill could have one positive effect.  It may induce doctors, hospitals, and insurance companies who currently refuse to participate in federal programs to do so, based upon the limited liability the bill would ensure. 

*Definition: “The term ‘health care lawsuit’ means any health care liability claim concerning the provision of goods or services for which coverage was provided in whole or in part via a Federal program, subsidy or tax benefit, or any health care liability action concerning the provision of goods or services for which coverage was provided in whole or in part via a Federal program, subsidy or tax benefit, brought in a State or Federal court or pursuant to an alternative dispute resolution system, against a health care provider regardless of the theory of liability on which the claim is based . . .”  This would presumably include Medicare, Medicaid, and the Affordable Care Act.

Glover on Legal Claims and Regulatory Theory

Maria Glover has published A Regulatory Theory of Legal Claims, 70 Vand. L. Rev. 221 (2017). Here’s the abstract:

Procedural law in the United States seeks to achieve three interrelated goals in our system of litigation: efficient processes that achieve “substantive justice” and deter wrongdoing, accurate outcomes, and meaningful access to the courts. For years, however, procedural debate, particularly in the context of due process rights in class actions, has been redirected toward more conceptual questions about the nature of legal claims—are they more appropriately conceptualized as individual property or as collective goods? At stake is the extent to which relevant procedures will protect the right of individual claimants to exercise control over their claims. Those with individualistic conceptions of legal claims tend to object to procedures that operate at the expense of claimant autonomy. Conversely, those who endorse collectivist views tend to downplay claimant autonomy. In the class action context, the debate between individualistic and collectivist views of legal claims has been waged as a proxy war between more fulsome and more limited availability of class procedures—a debate that has been rightly described as “intractable.”

This Article does not seek to resolve that debate, but to broaden it. The individualistic versus collectivist debate about legal claims arises not just in the class action context but in other contexts as well—a point long overlooked in legal scholarship.

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Gugliuzza & La Belle on the Patent Venue Statute

Paul Gugliuzza and Megan La Belle have posted on SSRN a draft of their article, The Patently Unexceptional Venue Statute, which will be published in the American University Law Review. Here’s the abstract:

Legal doctrines developed by the U.S. Court of Appeals for the Federal Circuit are often derided as “exceptionalist,” particularly on issues of procedure. The court’s interpretation of the venue statute for patent infringement suits seems, at first glance, to fit that mold. According to the Federal Circuit, the statute places few constraints on the plaintiff’s choice of forum when suing corporate defendants. This permissive venue rule has lead critics to suggest that the court is, once again, outside the mainstream. The Supreme Court’s recent grant of certiorari in TC Heartland v. Kraft Foods would seem to indicate that those critics are correct. 

This article argues, however, that venue is one area of Federal Circuit procedural law that is not, in fact, exceptional. Rather, the court’s capacious understanding of venue is both consistent with broader trends in venue doctrine and with the text and purpose of the governing statutes. To be clear, as a matter of pure policy, granting plaintiffs unbridled discretion over choice of forum in patent litigation may be problematic. But there are better modes of reform than a questionable interpretation of the venue statute that could have unintended consequences both in patent cases and beyond. 

This article, drafted for the American University Law Review’s annual symposium on the Federal Circuit, explores the history of the relevant venue statutes, analyzes key judicial decisions, argues that the Federal Circuit’s current approach to venue is doctrinally sound, and suggests alternative paths for reforming the law of forum selection in patent litigation.

 

 

 

 

Academic Commentary on the Pending Class Action Bill

From the Mass Tort Litigation Blog comes this list of academic commentary on the so-called "Fairness in Class Action Litigation Act," H.R. 985:

John Coffee (Columbia)

Howard Erichson (Fordham)

Myriam Gilles (Cardozo)  

Elizabeth Chamblee Burch (Georgia)  

 

Grossi on The Claim

Simona Grossi has posted on SSRN a draft of her article, The Claim. Here’s the abstract:

I felt compelled to write this article when I realized that our law interpreters and reformers lack an understanding of the meaning and role of the claim in the federal system, and yet modern scholarship has not produced any study or helpful guidance on the topic.

I spent my fall 2016 at the Yale Law School to work on Charles E. Clark’s collected papers, which are stored in the Yale’s Archives. Clark was the driving force behind the adoption of the Federal Rules. His papers contain his thoughts, notes, sketches, and ideas on procedural law and on the system of federal rules he was designing. Clark’s clear procedural vision produced Rules that have lasted, almost untouched, for almost 80 years. Those Rules assigned to the claim a primary role. And that is not surprising, as the claim is the essential litigation unit, the heartbeat of the case, a demand for justice. Clark was a legal realist and believed that courts were powerful instruments of democracy, intended to allow and foster the development and enforcement of substantive rights. By gradually losing an understanding of, and an interest in, the claim, we have developed doctrines that obstruct and distort the judiciary’s democratic dispute-resolution mission.

My article is intended to offer a comprehensive study of the claim and the role of the claim in the various doctrines that govern procedure in federal courts. Based on that understanding, the article develops a theory of federal practice and procedure that centers on the claim, a theory that assigns to the claim a primary, and yet a non-dispositive role in litigation analysis.

 

 

 

Law Student Writing Competition on Class Actions

Here’s the announcement for the American Association for Justice Class Action Litigation Group’s second annual law student writing competition:

Download CALG Writing Competition Rules 2016-2017

Deadline to submit is April 30, 2017.

 

 

 

Recent Cert Grants Now on SCOTUS Oral Argument Calendar

Earlier we covered last month’s flurry of cert grants by the U.S. Supreme Court, including several cases raising interesting civil procedure and federal courts issues. Many of these, as well as some earlier cert grants, are now on the court’s March and April oral argument calendars:

Tuesday, March 21:

• Microsoft v. Baker

Wednesday, March 22:

• Water Splash v. Menon

Monday, March 27:

• TC Heartland v. Kraft Foods

Monday, April 17:

• Perry v. Merit Systems Protection Board
• Town of Chester v. Laroe Estates
• California Public Employees Retirement System v. ANZ Securities

Tuesday, April 25:

• Bristol-Myers Squibb v. Superior Court
• BNSF Railway Co. v. Tyrrell

This means that decisions in these cases will likely come down by the end of June.

 

 

 

Burch on MDL Monopolies

Elizabeth Burch has recently published Monopolies in Multidistrict Litigation, 70 Vand. L. Rev. 67 (2017). Here’s the abstract:

When transferee judges receive a multidistrict proceeding, they select a few lead plaintiffs’ lawyers to efficiently manage litigation and settlement negotiations. That decision gives those attorneys total control over all consolidated plaintiffs’ claims and rewards them richly in common-benefit fees. It’s no surprise then that these are coveted positions, yet empirical evidence confirms that the same attorneys occupy them time and again.

Anytime repeat players exist and exercise both oligopolistic leadership control across multidistrict proceedings and monopolistic power within a single proceeding, there is concern that they will use their dominance to enshrine practices and norms that benefit themselves at consumers’ (or here, clients’) expense. Apprehensiveness should increase when defense lawyers are repeat players too, as they are in multidistrict litigation. And anxiety may peak when the circumstances exhibit these anti-competitive characteristics, but lack regulation as they do here. Without the safeguards built into class certification, judicial monitoring and appellate checks disappear. What remains is a system that may permit lead lawyers to act, at times, like a cartel.

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Five Questionable Bills About Civil Lawsuits Pass House Judiciary Committee

Five bills that would generally operate to favor corporate defendants in civil lawsuits have passed the House Judiciary Committee with blinding speed and have been referred to the full House: 

Bill	Title	Original sponsor
H.R. 985	Fairness in Class Action Litigation Act	Bob Goodlatte (R-VA-6)
H.R. 906	Furthering Asbestos Claim Transparency (FACT) Act	Blake Farenthold (R-TX-27)
H.R. 732	Stop Settlement Slush Funds Act	Bob Goodlatte (R-VA-6)
H.R. 725	Innocent Party Protection Act	Ken Buck (R-CO-4)
H.R. 720	Lawsuit Abuse Reduction Act	Lamar Smith (R-TX-21)

            We briefly described four of the bills here.  The bills are opposed by over 50 advocacy groups for civil rights, consumer protection, and environmental protection.  

Grossi on Frontloading, Class Actions, and a Proposal for a New Rule 23

Simona Grossi (Loyola LA) has posted Frontloading, Class Actions, and a Proposal for a New Rule 23 to SSRN.

As we are celebrating the 50th anniversary of the modern class action Rule — the version adopted in 1966 — the Advisory Committee is working on further revisions of Rule 23, conferences on the topic are proliferating, and the Supreme Court and lower federal courts are trying to navigate the technicalities of the current Rule.

Several doctrines in the federal system have generated a frontloading trend, i.e., a trend that pushes the analysis of the merits of the claim to the very outset of the litigation, before discovery has taken place, ultimately resulting in a denial of justice. The current Rule 23 and its proposed amendments seem to follow the same trend. In the article, I unearth the frontloading trend, show how and to what extent Rule 23 and its interpretation is part of it, and propose a new Rule 23, one designed to promote the underlying litigation principles the original Rule was meant to advance.

I spent my fall 2016 at the Yale Law School to work on Charles E. Clark’s Papers that are stored in the Yale’s Archives. Clark was the driving force behind the adoption of the Federal Rules. Clark’s Papers contain Clark’s thoughts, notes, sketches, ideas on the federal rules and the federal system he was designing, his philosophy of legal analysis and judicial decisionmaking. Clark’s clear procedural vision has produced Rules that have lasted, almost untouched, for almost 80 years. Inspired by Clark’s vision and ideas, my paper articulates a theory of class actions that is truthful to the design of the original Federal Rules, and proposes a new class action rule that is consistent with that theory and with Clark’s original vision for the rules.

Eisenberg, Miller, and Germano on Attorneys' Fees in Class Actions

Theodore Eisenberg (deceased), Geoffrey Miller, and Roy Germano have posted on SSRN their paper Attorneys' Fees in Class Actions: 2009-2013, a follow-up to earlier studies.  

Abstract:

We study attorney fee awards in 458 class action settlements reported in the five years from 2009-2013. Despite the financial crisis and its many effects on our national life, little has changed in class action attorneys’ fees. Average percentage fees are in line with prior studies. The key determinant of the fee continues to be the size of the class recovery: the amazingly regular relationship between these variables continues in the present data. We continue to find a “scaling” effect, in the sense that fees as a percentage of the recovery decrease as the size of the recovery increases. As in the previous Eisenberg-Miller studies, we find that fees are a function of risk – larger fees in higher-risk cases – although in the most recent data the effect is only weakly statistically significant. We document an inverse relationship between the percentage fee and the lodestar multiplier: cases with lower percentage fees are associated with higher multipliers. Likewise lodestar multipliers tend to rise with the size of class recovery.

While Trump Distracts, Republicans Introduce Four Bills Restricting Ordinary Citizens’ Access to the Courts

Four bills have been introduced in Congress that would limit plaintiffs' access to the courts.  The title of each bill is misleading, in that the effect of each bill would be very different from what its title indicates. 

1.  Probably the most far-ranging bill is the so-called "Fairness in Class Action Litigation Act of 2017," H.R. 985.   

This bill would critically hobble class actions by making them much more difficult to certify and reducing the compensation to plaintiffs’ class action lawyers. 

The major provisions of the bill with respect to class actions are (this is not an exhaustive list):

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Call for Papers: Inaugural Mid-Atlantic Junior Faculty Forum (Richmond, May 10-11, 2017)

Below is the Call for Papers for the inaugural Mid-Atlantic Junior Faculty Forum, which will be held on May 10 & 11, 2017, in Richmond, Virginia.

Abstracts are due by Friday, March 17.

Download MAJFF Call for Papers

 

 

 

Ninth Circuit Refuses to Stay District Court’s TRO Against Trump’s Executive Order

Today the Ninth Circuit issued its opinion in Washington v. Trump, refusing to grant the federal government’s request for a stay of Judge Robart’s TRO:

Download WA v Trump (9th Cir 2-9-17)

• Yes to appellate jurisdiction
• Yes to Article III standing for Washington and Minnesota
• No to the federal government’s request to narrow the TRO

Although this resolves the federal government’s request for a stay, the Ninth Circuit also issued a briefing schedule for the federal government’s appeal of the TRO itself:

Download 2-9-17 Procedural Order

 

 

Wasserman on Segall on Keeping an Eight-Justice SCOTUS

Now on the Courts Law section of JOTWELL is Howard Wasserman’s essay, Eight Is Enough. Howard reviews Eric Segall’s article, Eight Justices Are Enough: A Proposal to Improve the United States Supreme Court.

 

 

 

 

Perennial "Lawsuit Abuse Reduction Act" Introduced Again in House and Senate

In what is beginning to feel like the Groundhog Day of civil procedure bills, LARA has been reintroduced in the Senate and the House for the umpteenth (I think the fifth) time.  Although the text of the bills is not yet available, they are likely to be the same as the last version, which was described on this blog here.  Essentially, the bills would amend Rule 11 of the Federal Rules of Civil Procedure to eliminate the 21-day "safe harbor" and to make sanctions mandatory instead of discretionary if a violation is found. 

The press release by Senator Grassley, one of the co-sponsors of the bill in the Senate, is a rehash of all the alternative facts repeated for years by defendants to discredit civil litigation.  

The Advisory Committee, however, knows that there are not "thousands of frivolous lawsuits" in our federal courts and would be unlikely to amend Rule 11 based upon that falsehood.  I assume that is one reason the bills propose an end run around the Rules Enabling Act process.