Monday, March 30, 2020
The Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), 2671 et seq., waives the sovereign immunity of the United States and creates a cause of action for damages for certain torts committed by federal employees “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. 1346(b)(1). The FTCA also imposes a judgment bar, which provides that “[t]he judgment in an action under section 1346(b) of this title shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim.” 28 U.S.C. 2676.
The question presented is whether a final judgment in favor of the United States in an action brought under Section 1346(b)(1), on the ground that a private person would not be liable to the claimant under state tort law for the injuries alleged, bars a claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), that is brought by the same claimant, based on the same injuries, and against the same governmental employees whose acts gave rise to the claimant’s FTCA claim.
Wednesday, March 25, 2020
Following on the heels of decisions by the D.C. Circuit and the Seventh Circuit earlier this month, the Fifth Circuit issued a decision today that touches on the relationship between personal jurisdiction and class actions in the wake of the Supreme Court’s Bristol-Myers decision. Specifically, the panel decision in Cruson v. Jackson National Life Insurance Co. addresses whether the defendant had waived its argument that the Texas district court lacked personal jurisdiction with respect to the claims of class members outside of Texas.
In the district court, the defendant (Jackson) had filed a Rule 12 pre-answer motion to dismiss for lack of subject-matter jurisdiction and failure to state a claim but did not assert a lack of personal jurisdiction until it served its answer. The district court found this constituted a waiver of the lack-of-personal-jurisdiction defense, but today’s Fifth Circuit decision disagrees. Judge Duncan’s opinion states:
“Jackson’s objection to personal jurisdiction concerned only class members who were non-residents of Texas. Those members, however, were not yet before the court when Jackson filed its Rule 12 motions. What brings putative class members before the court is certification: Certification of a class is the critical act which reifies the unnamed class members and, critically, renders them subject to the court’s power. When Jackson filed its pre-certification Rule 12 motions, however, the only live claims belonged to the named plaintiffs, all Texas residents as to whom Jackson conceded personal jurisdiction. Thus, at that time, a personal jurisdiction objection respecting merely putative class members was not ‘available,’ as Rule 12(g)(2) requires for waiver.” [Slip Op. at 9-10 (citations, internal quotation marks, and footnotes omitted)]
The Fifth Circuit did not, however, address the merits of the defendant’s personal jurisdiction argument. In footnote 7, Judge Duncan states:
“We decline Jackson’s request to address the merits of its personal jurisdiction defense for the first time on appeal. . . . Because we find that Jackson did not waive the defense, and because we vacate the district court’s certification order and remand for further proceedings, Jackson is free to raise the defense again should plaintiffs seek to re-certify a class. We express no opinion on the merits of the personal jurisdiction issue, should it be raised again on remand.”
Tuesday, March 24, 2020
Monday, March 23, 2020
I just posted to SSRN my article, Notice Pleading in Exile, 41 Cardozo L. Rev. 1057 (2020). Here’s the abstract:
According to the conventional wisdom, the Supreme Court’s 2009 decision in Ashcroft v. Iqbal discarded notice pleading in favor of plausibility pleading. This Article—part of a symposium commemorating the Iqbal decision’s tenth anniversary—highlights decisions during those ten years that have continued to endorse notice pleading despite Iqbal. It also argues that those decisions reflect the best way to read the Iqbal decision. Although Iqbal is a troubling decision in many respects, it can be implemented consistently with the notice-pleading framework that the original drafters of the Federal Rules of Civil Procedure had in mind.
Shout out to the Cardozo Law School, the Cardozo Law Review, and The Floersheimer Center for Constitutional Democracy for hosting such an excellent symposium last spring. I’ll post links to all of the symposium pieces once they’re available.
Thursday, March 19, 2020
Yesterday the Delaware Supreme Court issued an important decision on federal-forum provisions (FFPs)—that is, provisions in corporate charters requiring that actions arising under the Securities Act of 1933 be filed in a federal court. In Salzberg v. Sciabacucchi, the Delaware Supreme Court overturned the Delaware Court of Chancery’s decision that FFPs were invalid under Delaware law: “Because such a provision can survive a facial challenge under our law, we reverse.”
Monday, March 16, 2020
Friday, March 13, 2020
Thursday, March 12, 2020
Yesterday the Seventh Circuit did what the D.C. Circuit refrained from doing one day earlier—it weighed in on the hotly-contested question of whether the Supreme Court’s Bristol-Myers decision applies to class actions filed in federal court. Judge Wood’s unanimous panel decision in Mussat v. IQVIA, Inc. begins:
Florence Mussat, an Illinois physician doing business through a professional services corporation, received two unsolicited faxes from IQVIA, a Delaware corporation with its headquarters in Pennsylvania. These faxes failed to include the opt-out notice required by federal statute. Mussat’s corporation (to which we refer simply as Mussat) brought a putative class action in the Northern District of Illinois under the Telephone Consumer Protection Act, 47 U.S.C. § 227, on behalf of itself and all persons in the country who had received similar junk faxes from IQVIA in the four previous years. IQVIA moved to strike the class definition, arguing that the district court did not have personal jurisdiction over the non-Illinois members of the proposed nationwide class.
The district court granted the motion to strike, reasoning that under the Supreme Court’s decision in Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017), not just the named plaintiff, but also the unnamed members of the class, each had to show minimum contacts between the defendant and the forum state. Because IQVIA is not subject to general jurisdiction in Illinois, the district court turned to specific jurisdiction. Applying those rules, see Walden v. Fiore, 571 U.S. 277, 283–86 (2014), it found that it had no jurisdiction over the claims of parties who, unlike Mussat, were harmed outside of Illinois. We granted Mussat’s petition to appeal from that order under Federal Rule of Civil Procedure 23(f). We now reaffirm the Rule 23(f) order, and we hold that the principles announced in Bristol-Myers do not apply to the case of a nationwide class action filed in federal court under a federal statute. We reverse the order of the district court and remand for further proceedings.
In reaching this conclusion, Judge Wood also clarified that Rule 23(f) permitted an immediate appeal of the district court’s ruling on the motion to strike—even though that ruling did not formally grant or deny class status. She explained that “[t]he district court’s order eliminates all possibility of certifying the nationwide class Mussat sought, and so to that extent it operates as a denial of certification for one proposed class.”
Wednesday, March 11, 2020
Yesterday the D.C. Circuit issued its decision in Molock v. Whole Foods Market Group, Inc. The case raises important questions about personal jurisdiction in the wake of the Supreme Court’s Bristol-Myers decision, particularly whether Bristol-Myers applies to class actions filed in federal court. The panel majority, however, found that it would be premature to address that issue. Judge Tatel’s majority opinion, joined by Judge Garland, begins:
In this not yet certified class action, the defendant moved to dismiss all nonresident putative class members for lack of personal jurisdiction. The district court denied the motion on the merits. We affirm, but on alternative grounds. Absent class certification, putative class members are not parties before a court, rendering the defendant’s motion premature.
Judge Silberman writes a dissenting opinion, which begins:
The majority disposes of this appeal by concluding that Whole Foods’ motion to dismiss was premature, notwithstanding the plaintiffs’ repeated failure to raise the issue to the district court. I would not excuse that forfeiture. * * * Because I would reach the Bristol-Myers question and hold that class claims unrelated to Whole Foods’ contacts with the District of Columbia cannot proceed, I respectfully dissent.
Tuesday, March 10, 2020
Friday the 13th… is the deadline to submit abstracts for the 2020 Civil Procedure Workshop (Northwestern Law, September 25-26, 2020)
Monday, March 9, 2020
Today on the Courts Law section of JOTWELL is Robin Effron’s essay, Discovery and the Limits of Transsubstantivity. Robin reviews Diego Zambrano’s recent article, Discovery as Regulation, which is forthcoming in the Michigan Law Review.
Friday, March 6, 2020
Today the Fourth Circuit issued a unanimous panel decision in Mayor and City Council of Baltimore v. BP P.L.C. Judge Floyd’s opinion begins:
This appeal is about whether a climate-change lawsuit against oil and gas companies belongs in federal court. But this decision is only about whether one path to federal court lies open. Because 28 U.S.C. § 1447(d) confines our appellate jurisdiction, the narrow question before us is whether removal of this lawsuit is proper under 28 U.S.C. § 1442, commonly referred to as the federal officer removal statute. And because we conclude that § 1442 does not provide a proper basis for removal, we affirm the district court’s remand order.
Here is the full opinion:
Thursday, March 5, 2020
Last week, the Twenty-First Century Courts Act (H.R. 6017) was introduced in the House of Representatives. The bill would require: a Code of Conduct for Supreme Court Justices (§ 2); written recusal explanations, including for Supreme Court Justices (§ 3); online publication of financial disclosure reports (§ 4); same-day audio release of Supreme Court oral arguments (and live audio within two years), and live audio of oral arguments in the federal courts of appeals (§ 5); improvements to electronic case management systems (§ 6); and free access to electronic documents via PACER (§ 7).
Here is the full text:
You can follow the bill’s progress here.
Wednesday, March 4, 2020
On April 3, 2020, the Byron R. White Center for the Study of American Constitutional Law at Colorado University Law School is hosting the 28th annual Rothgerber Conference, entitled “Women’s Enfranchisement: Beyond the 19th Amendment.”
You can find a full list of panel topics and speakers here.
Register by Monday, March 30 at this link.
Tuesday, March 3, 2020
The Pound Civil Justice Institute has published the report of its 2019 Judges Forum, Aggregate Litigation in State Courts: Preserving Vital Mechanisms, which features academic papers by Teddy Rave and Myriam Gilles, plus commentary and discussion by the legal experts and judges who attended.
You can find previous Judges Forum reports here.
Monday, March 2, 2020
Big Article III Standing and Severability Questions in Today's SCOTUS Cert Grants on the Affordable Care Act
Today the Supreme Court granted certiorari in California v. Texas and Texas v. California and consolidated the two cases. These cases involve the constitutionality of the minimum-coverage provision (also known as the “individual mandate”) of the Patient Protection and Affordable Care Act (ACA). They also present important questions regarding Article III standing (whether the individual and state plaintiffs have standing to challenge the minimum-coverage provision of the ACA) and severability (if the minimum-coverage provision is unconstitutional, can it be severed from the rest of the ACA).
Amanda Rose has posted drafts of two papers on SSRN. One is Cutting Class Action Agency Costs: Lessons from the Public Company, which is forthcoming in the U.C. Davis Law Review. Here’s the abstract:
The agency relationship between class counsel and class members in Rule 23(b)(3) class actions is similar to that between executives and shareholders in U.S. public companies. This similarity has often been noted in class action literature, but until this Article no attempt has been made to systematically compare the approaches taken in these two settings to reduce agency costs. Class action scholars have downplayed the importance of the public company analogy because public companies are subject to market discipline and class actions are not. But this is precisely why the analogy is useful: because public companies are subject to market discipline, the tools they utilize to reduce agency costs are more likely to be efficient. This Article looks to those tools as inspiration for class action reform, proposing several novel ways to improve current practice.
Another is Classaction.gov. Here’s the abstract:
This Essay proposes the creation of a federally-run class action website and supporting administration (collectively, Classaction.gov) that would both operate a comprehensive research database on class actions and assume many of the notice and claims processing functions performed by class action claims administrators today. Classaction.gov would bring long-demanded transparency to class actions and, through forces of legitimization and coordination, would substantially increase the rate of consumer participation in class action settlements. It also holds the key to mitigating other problems in class action practice, such as the inefficiencies and potential abuses associated with multi-forum litigation, the limited success of CAFA’s notice requirement in spurring effective pubic oversight of class actions, and the potential for abuse inherent in cy pres settlement awards.