Civil Procedure & Federal Courts Blog

Azad on McAlister on Unpublished Decisions

Today on the Courts Law section of JOTWELL is Ryan Azad’s essay, Decision-Making in the Dark. Ryan reviews Merritt McAlister’s recent article, “Downright Indifference”: Examining Unpublished Decisions in the Federal Courts of Appeals, which is forthcoming in the Michigan Law Review.

 

SCOTUS cert grant in FNU Tanzin v. Tanvir: can individual federal employees be sued for money damages under the Religious Freedom Restoration Act?

Today the Supreme Court granted certiorari in FNU Tanzin v. Tanvir, which presents the following question: “Whether the Religious Freedom Restoration Act of 1993, 42 U.S.C. 2000bb et seq., permits suits seeking money damages against individual federal employees.”

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

 

 

SDNY Opinion on Payments to Class Action Settlement Objectors under the 2018 Amendment to Rule 23

Last month Judge Lorna Schofield (U.S. District Court for the Southern District of New York) issued an interesting decision that is one of the first to apply the 2018 amendment to Rule 23 regarding objectors to class action settlements. The new language in Rule 23(e)(5)(B) provides:

“Unless approved by the court after a hearing, no payment or other consideration may be provided in connection with: (i) forgoing or withdrawing an objection, or (ii) forgoing, dismissing, or abandoning an appeal from a judgment approving the proposal.”

The recent decision comes in the case of In re Foreign Exchange Benchmark Rates Antitrust Litigation. Two objectors had appealed Judge Schofield’s approval of the class settlement in that case, but the objectors reached an agreement with class counsel to dismiss the appeal in exchange for a $300,000 payment to the objectors’ counsel and a $5,000 incentive award payment to one of the objectors.

Judge Schofield refused to approve the payment, quoting this language from the Advisory Committee Note to the 2018 amendment:

“But some objectors may be seeking only personal gain, and using objections to obtain benefits for themselves rather than assisting in the settlement-review process. At least in some instances, it seems that objectors -- or their counsel -- have sought to obtain consideration for withdrawing their objections or dismissing appeals from judgments approving class settlements. And class counsel sometimes may feel that avoiding the delay produced by an appeal justifies providing payment or other consideration to these objectors. Although the payment may advance class interests in a particular case, allowing payment perpetuates a system that can encourage objections advanced for improper purposes.”

She reasoned: “The Agreement here seems to fit that description; the Agreement does little more than benefit Objector’s counsel and ‘perpetuate[] a system that can encourage objections advanced for improper purposes.’”

Here is the full opinion:

Download SDNY Opinion In re Forex (10-11-2019)

It’s also available on Westlaw at 2019 WL 5256957.

Here’s coverage of Judge Schofield’s decision from Bloomberg’s Perry Cooper.

 

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PS: Because Judge Schofield refused to approve the payment, the Second Circuit appeal went forward. Just a few weeks after oral argument, the Second Circuit issued an opinion affirming Judge Schofield’s approval of the settlement. Here is the Second Circuit’s opinion:

Download 2d Circuit Opinion (18-3673)

The Second Circuit opinion is available on Westlaw at 2019 WL 5681336.

 

Pound Civil Justice Institute/Lewis & Clark Law School Symposium: "Class Actions, Mass Torts, and MDLs: The Next 50 Years"

A couple of weeks ago, the Pound Civil Justice Institute and Lewis & Clark Law School sponsored a symposium entitled “Class Actions, Mass Torts, and MDLs: The Next 50 Years.”

The 11 papers that were presented will be published in the Lewis & Clark Law Review in the coming months. You can find more information about the symposium here, here, and here.

 

 

 

 

 

House Judiciary Committee Hearing on "Snap" Removal

Today at 2:00pm (eastern time), the House Judiciary Committee is holding a hearing entitled Examining the Use of “Snap” Removals to Circumvent the Forum Defendant Rule.

You can watch the hearing here.

 

 

 

Tidmarsh on McGovern & Rubenstein on Negotiation Class Actions

Now on the Courts Law section of JOTWELL is Jay Tidmarsh’s essay, The Negotiation Class Action. Jay reviews a recent paper by Francis McGovern & Bill Rubenstein, The Negotiating Class: A Cooperative Approach to Class Actions Involving Large Stakeholders.

 

 

 

D.C. federal court dismisses New York defendants from Trump's tax return lawsuit for lack of personal jurisdiction

This past summer, Donald Trump filed a lawsuit against New York Attorney General Letitia James, Commissioner of the New York State Department of Taxation and Finance Michael Schmidt, and the House Ways and Means Committee seeking to block the disclosure of his New York state tax returns. The suit was filed in U.S. District Court for the District of Columbia.

Today Judge Carl Nichols dismissed the two New York defendants for lack of personal jurisdiction. His ruling is based on D.C.’s long-arm statute, although he alludes to potential constitutional concerns in a footnote. Here is the opinion:

Download Opinion 11-11-2019

 

 

Class Certification Order in Pay Discrimination Case Brought by US Women's Soccer Team

Today Judge Klausner of the U.S. District Court for the Central District of California certified both a damages class and an injunctive relief class in Morgan v. United States Soccer Federation. The plaintiffs are members of the U.S. Women’s National Soccer Team, alleging violations of the Equal Pay Act and Title VII based on discrepancies in pay between them and the Men’s National Team.

Here is today’s order:

Download Morgan v US Soccer Federation - Order 2019-11-08

And here is coverage from ESPN: https://www.espn.com/soccer/united-states-usaw/story/3984769/uswnt-wins-ruling-to-pursue-gender-discrimination-suit-as-class-action

 

 

 

Zimmerman on Surges and Delays in Mass Adjudication

Adam Zimmerman (Loyola LA) has posted Surges and Delays in Mass Adjudication to SSRN.

Federal courts and agencies have both transformed themselves in response to new surges of claims in mass adjudication. But each system has done so in different ways. Courts frequently devise new case management techniques to appoint magistrate judges and organize private lawyers, facilitate the exchange of information, and collectively resolve disputes. By contrast, federal agencies often rely on centralized programs—using new rules, guidance, staffing, and most recently, artificial intelligence to address unpredictable surges and chronic delays.

But new experiments in agencies and courts suggest they do not have to pursue one approach at the expense of the other. To that end, some administrative judges have embraced novel case handling techniques, employing special masters and aggregate procedures. Courts have also used policy guidance and data analysis. These experiments suggest courts and agencies can learn and borrow from each other’s experiences.

How much each does so raises larger questions about adjudicative power. As federal courts have embraced informal case handling, they also have acquired more power to respond to new problems. By contrast, centralized plans often subordinate administrative judges to others in the policymaking wings of agencies and the halls of Congress. These trends may reflect differences between independent Article III courts and administrative judges who are reviewed by officers responsible for formulating policy. But combining approaches actually may strengthen how agencies make policy and the judiciary’s adherence to the rule of law—allowing agencies to flexibly adapt to new problems, while offering courts opportunities to adopt coherent and informed strategies in mass adjudication.

Mullenix on Choi, Erickson & Pritchard on Attorneys Fees in Securities Fraud Class Action "Mega-Settlements"

Now on the Courts Law section of JOTWELL is Linda Mullenix’s essay, Is Greed Good? Mega-Fees in Securities Fraud Class Action Mega-Settlements. Linda reviews a recent paper by Stephen Choi, Jessica Erickson, and Adam Pritchard, Working Hard or Making Work? Plaintiffs’ Attorneys Fees in Securities Fraud Class Actions.