Civil Procedure & Federal Courts Blog

Farkas on Justice Thomas and the FAA

Brian Farkas has posted The Continuing Voice of Dissent: Justice Thomas and the Federal Arbitration Act to SSRN.

Since 1984, a majority of the Supreme Court has held that the Federal Arbitration Act (“FAA”) preempts conflicting state arbitration laws, and that the FAA must be applied in state courts. Consequently, federal courts have invalidated many states’ attempts to regulate arbitration. This reality has shaped American arbitration law for over three decades. Justice Clarence Thomas has vigorously fought against this approach to arbitration policy since he joined the Supreme Court. Indeed, he has been among the most vocal and consistent opponents of the application of the FAA in state court proceedings. Yet his voice has always been in dissent, most recently in the December 2015 decision in DIRECTV, Inc. v. Imburgia. This Article represents the most comprehensive examination to date of Justice Thomas’ views on both the FAA and arbitration more broadly. Beginning with a background on the FAA’s history and the Supreme Court’s arbitration jurisprudence, it explores his unique judicial philosophy and its intersection with arbitration policy. In an area of procedural law that evades facile labels of ‘liberal’ and ‘conservative,’ Justice Thomas shows the ways in which a conservative preference for states’ rights can actually lead to liberal procedural and substantive outcomes. 

Update on Plaintiff-Unfriendly Litigation Bills in Congress

We noted earlier this year (see also here and here) that the House passed several bills that would restrict ordinary citizens' access to the courts.

This article by Bruce Kaufman in Bloomberg BNA describes the currently "stalled" status of these bills in the Senate.

Betty Dukes, Lead Plaintiff in Walmart Class Action, Dies

Betty Dukes, the lead plaintiff in the historic class action Dukes v. Wal-Mart Stores, Inc., No. C-01-2252 (N.D. Calif.), has died at age 67.   Although the lower courts granted and affirmed class certification in a gender- and race-based discrimination suit, the Supreme Court, in a 5-4 decision authored by Justice Antonin Scalia for the majority,   reversed the grant of class certification.

Hat tip: Janet Alexander.

Central States Law School Association (CSLSA) Annual Scholarship Conference

An announcement from the CSLSA:

Registration is Open for the CSLSA 2017 Conference

 

Registration is now open for the Central States Law Schools Association 2017 Scholarship Conference, which will be held on Friday, October 6 and Saturday, October 7 at Southern Illinois University School of Law in Carbondale, Illinois. We invite law faculty from across the country to submit proposals to present papers or works in progress.

CSLSA is an organization of law schools dedicated to providing a forum for conversation and collaboration among law school academics. The CSLSA Annual Conference is an opportunity for legal scholars, especially more junior scholars, to present working papers or finished articles on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment. More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work. Scholars from member and nonmember schools are invited to attend. 

Please click here to register. The deadline for registration is September 2, 2017.  

Hotel rooms are now available for pre-booking.  The conference hotel is the Holiday Inn Conference Center in Carbondale.  To reserve a room, call 618-549-2600 and ask for the SIU School of Law rate ($109/night) or book online and use block code SOL.  SIU School of Law will provide shuttle service to and from the Holiday Inn & Conference Center for conference events.  Other hotel options (without shuttle service) are listed on our website.  Please note that conference participants are responsible for all of their own travel expenses including hotel accommodations.

For more information about CSLSA and the 2017 Annual Conference please subscribe to our blog.

CFPB Issues Rule on Arbitration Agreements

Today the Consumer Financial Protection Bureau issued its final rule on arbitration agreements. Here’s the full 775-page document (the text of the regulation itself begins at p.747).

From the summary:

First, the final rule prohibits covered providers of certain consumer financial products and services from using an agreement with a consumer that provides for arbitration of any future dispute between the parties to bar the consumer from filing or participating in a class action concerning the covered consumer financial product or service. Second, the final rule requires covered providers that are involved in an arbitration pursuant to a pre-dispute arbitration agreement to submit specified arbitral records to the Bureau and also to submit specified court records. The Bureau is also adopting official interpretations to the regulation.

 

 

 

 

 

 

Second Circuit Decision on Class Actions

Today the U.S. Court of Appeals for the Second Circuit issued its decision in In re Petrobras Securities. Among other things, the panel’s opinion addresses the role of “ascertainability” for class certification under FRCP 23:

“We take this opportunity to clarify the ascertainability doctrine’s substance and purpose. We conclude that a freestanding administrative feasibility requirement is neither compelled by precedent nor consistent with Rule 23, joining four of our sister circuits in declining to adopt such a requirement. The ascertainability doctrine that governs in this Circuit requires only that a class be defined using objective criteria that establish a membership with definite boundaries.”

Specifically, the Second Circuit rejected what it called “[t]he heightened ascertainability test, as articulated by the Third Circuit,” which “treats administrative feasibility as an absolute standard: plaintiffs must provide adequate ‘assurance that there can be a reliable and administratively feasible mechanism for determining whether putative class members fall within the class definition.’”

“We conclude that an implied administrative feasibility requirement would be inconsistent with the careful balance struck in Rule 23, which directs courts to weigh the competing interests inherent in any class certification decision.”

Download Petrobras (2d Cir)