Friday, May 29, 2020
The Notre Dame Law Review has published its symposium issue, Federal Courts, Practice & Procedure: State Standing. It features contributions by Tara Grove, Ernie Young, Andy Hessick, Brad Mank & Mike Solimine, Jonathan Nash, Ann Woolhandler & Michael Collins, Robert Mikos, Katherine Crocker, Seth Davis, and Aziz Huq.
Thursday, May 28, 2020
Bryan Lammon has posted on SSRN a draft of his article, Interlocutory Class-Certification Appeals Under Rule 23(f). Here’s the abstract:
This Article presents my empirical study of petitions to appeal from class-certification decisions under Federal Rule of Civil Procedure 23(f). I created a dataset of Rule 23(f) petitions filed from 2013 through 2017. The data revealed three insights on Rule 23(f) and class actions generally.
First are the basic findings. Litigants filed over 850 petitions to appeal from 2013 through 2017. The courts of appeals granted about 25% of them. And when appellate courts granted permission to appeal, they reversed the district court's class-certification decision about 54% of the time.
Second, I used the data to test two common criticisms of Rule 23(f): (1) that the rule favors defendants, and (2) that the circuits apply the rule inconsistently. I found little empirical support for either of these criticisms. And what little evidence there is comes with some significant caveats.
Finally, the data shed some light on the largely unknown universe of class actions. We have very little hard data on class actions — how many are brought, the types of cases, their success rate, etc. And some question whether the class action is still a viable tool for plaintiffs to obtain relief. My study provides a glimpse into one corner of the class-action universe. And, perhaps surprisingly, it's a corner in which plaintiffs are not always losing: in the Rule 23(f) context, the courts of appeals reached a plaintiff-favorable outcome over 50% of the time.
Tuesday, May 26, 2020
Today the Ninth Circuit rejected federal jurisdiction over two lawsuits against various energy companies based on the effect of fossil fuels on climate change. One action (County of San Mateo v. Chevron) was initially filed in state court but removed to federal court. Another (City of Oakland v. BP) was initially filed in federal court. Judge Ikuta writes the opinion in both cases, joined by Judges Christen and Lee.
The San Mateo decision begins:
In this appeal, we consider a district court’s order remanding complaints to state court after the defendants had removed the complaints to federal court on eight separate grounds. Under 28 U.S.C. § 1447(d), we have jurisdiction to review the remand order only to the extent it addresses whether removal was proper under § 1442(a)(1), see Patel v. Del Taco, Inc., 446 F.3d 996, 998 (9th Cir. 2006), which authorizes removal by “any person acting under” a federal officer, 28 U.S.C. § 1442(a)(1). We conclude that the defendants did not carry their burden of establishing this criteria for removal. Because we lack jurisdiction to review other aspects of the remand order, we dismiss the remainder of the appeal.
The Oakland decision begins:
Two California cities brought actions in state court alleging that the defendants’ production and promotion of fossil fuels is a public nuisance under California law, and the defendants removed the complaints to federal court. We hold that the state-law claim for public nuisance does not arise under federal law for purposes of 28 U.S.C. § 1331, and we remand to the district court to consider whether there was an alternative basis for subject-matter jurisdiction.
Thursday, May 21, 2020
Last month, the Ninth Circuit issued an interesting decision in LN Management v. JPMorgan Chase Bank. The opinion is authored by Sixth Circuit Judge Danny Boggs (sitting by designation). It begins:
There are a number of ways to accomplish litigation regarding interests once held by a dead person. One can institute or join probate proceedings, for instance, or sue the executor of an estate in courts of general jurisdiction, or in some circumstances proceed directly against the successors of the deceased. Rarely do we see efforts to actually engage the dead in litigation. This case turns on such a question, which is of first impression in this circuit: can you sue a dead person?1
The answer may seem obvious. Yet strangely, in the 129-year history of this court, we have never been called upon to rule on this issue. We do so today, and we resolve the question in the negative.
And here is footnote 1:
There is ample extrajudicial literature bearing on this question. Dead men, we know from multiple authorities, would not make good litigants. They “tell no tales,” so they would be bad witnesses and deponents. See PIRATES OF THE CARIBBEAN: DEAD MEN TELL NO TALES (Walt Disney Pictures 2017). Since “you can’t take it with you,” they are judgment-proof defendants. See GEORGE S. KAUFMAN & MOSS HART, YOU CAN’T TAKE IT WITH YOU 75 (Dramatists Play Svc., Inc. 1937). And there is persuasive authority that, in whichever of the two traditional locations the deceased is now to be found, obtaining personal jurisdiction and serving of process would be difficult. See U. S. ex rel. Mayo v. Satan & his Staff, 54 F.R.D. 282, 283 (W.D. Pa. 1971) (finding no personal jurisdiction over defendant notwithstanding the “unofficial account” of The Devil and Daniel Webster); State Senator Ernie Chambers v. God, No. 1075-462, (Neb. Douglas Cty. Dist. Ct. Oct. 8, 2008) (dismissing case due to impossibility of service on Defendant), appeal dismissed; order vacated (Neb. Ct. App., No. 08-1180, Feb. 25, 2009).
Tuesday, May 19, 2020
Below is an updated schedule for the online civil procedure workshop series covered earlier. You can register here (be sure to register for Civ Pro, not Evidence -- unless you also want to join the Evidence one, which is great too).
May 5, 2020: Alexi Lahav -- Bristol-Myers Squibb: Going Forward
May 19, 2020: Rick Marcus -- E-Discovery
June 23, 2020: Robin Effron -- New Perspectives on Joinder
July 7, 2020: Rich Freer -- Civil Procedure and the Bar Exam
July 14, 2020: Valerie Hans -- Civil Juries
July 21, 2020: Kevin Clermont -- Preponderance of the Evidence Standard
August 11, 2020: Brian Soucek -- Pleading Standards for Affirmative Defenses
September 1, 2020: Howie Erichson -- Distinguishing Between Facts And Conclusions Under Iqbal
October 6, 2020: Portia Pedro -- Remedies and Civil Procedure
November 10, 2020: Zach Clopton & Colleen Shanahan -- State Civil Procedure
February 2, 2021: Pamela Bookman & David Noll -- Ad Hoc Procedure
March 2, 2021: Beth Burch -- Multi-District Litigation
April 6, 2021: David Engstrom & Jonah Gelbach -- Legal Tech
Monday, May 18, 2020
Today on the Courts Law section of JOTWELL is Allan Erbsen’s essay, Discretion, Division, and the Supreme Court’s Docket. Allan reviews Jonathan Nash and Michael Collins’ recent article, The Certificate of Division and the Early Supreme Court, 94 S. Cal. L. Rev. (forthcoming 2021).
Friday, May 15, 2020
There are major political implications, obviously, but these decisions are all about appellate jurisdiction—the majority declines to review the district court’s denial of Trump’s motions to dismiss without addressing the substantive merits of those rulings. Stay tuned, of course: it’s quite likely that this case is headed to the Supreme Court.
Thursday, May 14, 2020
Today the Supreme Court issued a unanimous decision in Lucky Brand Dungarees, Inc. v. Marcel Fashions Group, Inc. The Court rejects the application of what Justice Sotomayor’s opinion describes as “so-called ‘defense preclusion,’” which would preclude a party from invoking a defense in a later lawsuit because of its failure to invoke that defense in an earlier lawsuit. This case arises from “protracted litigation” between Lucky Brand and Marcel over alleged infringement of Marcel’s “Get Lucky” trademark:
In the latest lawsuit between the two, Lucky Brand asserted a defense against Marcel that it had not pressed fully in a preceding suit between the parties. This Court is asked to determine whether Lucky Brand’s failure to litigate the defense in the earlier suit barred Lucky Brand from invoking it in the later suit. Because the parties agree that, at a minimum, the preclusion of such a defense in this context requires that the two suits share the same claim to relief—and because we find that the two suits here did not—Lucky Brand was not barred from raising its defense in the later action.
Justice Sotomayor notes that the Supreme Court “has never explicitly recognized ‘defense preclusion’ as a standalone category of res judicata, unmoored from the two guideposts of issue preclusion and claim preclusion. Instead, our case law indicates that any such preclusion of defenses must, at a minimum, satisfy the strictures of issue preclusion or claim preclusion.” Given that the defense asserted in the later case had not been actually litigated in the earlier lawsuit, issue preclusion could not apply. So any application of defense preclusion must at least satisfy claim preclusion’s general requirement that the two lawsuits share a “common nucleus of operative facts.” That wasn’t the case here: “At bottom, Marcel’s 2011 Action challenged different conduct—and raised different claims—from the 2005 Action. Under those circumstances, Marcel cannot preclude Lucky Brand from raising new defenses.”
In footnote 2, Justice Sotomayor leaves open the question of whether claim preclusion can ever be applied to defenses:
There may be good reasons to question any application of claim preclusion to defenses. It has been noted that in suits involving successive claims against the same defendant, courts often “assum[e] that the defendant may raise defenses in the second action that were not raised in the first, even though they were equally available and relevant in both actions.” Wright & Miller §4414. This is because “[v]arious considerations, other than actual merits, may govern” whether to bring a defense, “such as the smallness of the amount or the value of the property in controversy, the difficulty of obtaining the necessary evidence, the expense of the litigation, and [a party’s] own situation.” Cromwell v. County of Sac, 94 U. S. 351, 356 (1877). Here, however, this Court need not determine when (if ever) applying claim preclusion to defenses may be appropriate, because a necessary predicate—identity of claims—is lacking.
Tuesday, May 12, 2020
After listening to this morning’s Supreme Court oral argument in the Trump Documents cases, join us for the second installment of the “Unavailability” Civil Procedure Workshop. Howard Wasserman will discuss Erie, SLAPP Suits, and the First Amendment.
Friday, May 8, 2020
SCOTUS orders supplemental briefing in Google v. Oracle on the Seventh Amendment and the standard of review for a jury's fair-use finding
Google LLC v. Oracle America, Inc. is one of the Supreme Court cases that has been postponed until the October Term 2020 in light of the COVID-19 situation. It presents the following questions: (1) whether copyright protection extends to a software interface; and (2) whether, as the jury found, petitioner’s use of a software interface in the context of creating a new computer program constitutes fair use.
This week, the Supreme Court directed the parties to file supplemental briefs addressing “the appropriate standard of review” for the jury’s fair-use finding, “including but not limited to the implications of the Seventh Amendment, if any, on that standard.”
H/T Shaun Shaughnessy
Thursday, May 7, 2020
Today the Supreme Court issued an interesting decision in United States v. Sineneng-Smith, a case in which the Ninth Circuit held that the federal statute making it a crime to encourage or induce illegal immigration for commercial advantage or private financial gain was facially overbroad in violation of the First Amendment. Justice Ginsburg’s unanimous opinion did not address this constitutional question, however. Rather, the Court held that the Ninth Circuit had “departed so drastically from the principle of party presentation as to constitute an abuse of discretion,” and remanded the case “for an adjudication of the appeal attuned to the case shaped by the parties rather than the case designed by the appeals panel.”
Neither party had raised the First Amendment overbreath issue in either the district court or the initial round of Ninth Circuit briefing. But “[i]nstead of adjudicating the case presented by the parties, the appeals court named three amici and invited them to brief and argue issues framed by the panel,” including “whether the statute of conviction is overbroad . . . under the First Amendment.” In today’s opinion, the Supreme Court reasons that “[n]o extraordinary circumstances justified the panel’s takeover of the appeal.” Although Justice Ginsburg recognizes that “a court is not hidebound by the precise arguments of counsel,” she writes that “the Ninth Circuit’s radical transformation of this case goes well beyond the pale.”
Sineneng-Smith is a criminal case, but Justice Ginsburg’s opinion notes that this principle of party presentation applies in civil litigation as well:
In our adversarial system of adjudication, we follow the principle of party presentation. As this Court stated in Greenlaw v. United States, 554 U. S. 237 (2008), “in both civil and criminal cases, in the first instance and on appeal . . . , we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.” Id., at 243.
Footnote 3, in fact, cites to Ben Kaplan’s 1960 article, Civil Procedure—Reflections on the Comparison of Systems, 9 Buffalo L. Rev. 409, for the proposition that the U.S. system “exploits the free-wheeling energies of counsel and places them in adversary confrontation before a detached judge” while the “German system puts its trust in a judge of paternalistic bent acting in cooperation with counsel of somewhat muted adversary zeal.”
In footnote 4, the Court does acknowledge some tension between this “principle of party presentation” and the Supreme Court’s own practice: “In an addendum to this opinion, we list cases in which this Court has called for supplemental briefing or appointed amicus curiae in recent years. None of them bear any resemblance to the redirection ordered by the Ninth Circuit panel in this case.” That addendum, which begins at p.10 of the slip opinion, is an interesting resource in and of itself.
Justice Thomas writes a concurring opinion, arguing that the Ninth Circuit’s decision “violates far more than the party presentation rule. The merits of that decision also highlight the troubling nature of this Court’s overbreadth doctrine.”
Wednesday, May 6, 2020
As covered earlier, the Supreme Court’s April decision in Ramos v. Louisiana holds that the Constitution requires a unanimous jury verdict in order for states to convict a defendant of a serious offense. But it left open the important question of retroactivity—can the right to a unanimous jury verdict be raised on collateral/habeas review?
On Monday, the Supreme Court set itself up to answer this question. It granted certiorari in Edwards v. Vannoy, limited to the following question: “Whether this Court’s decision in Ramos v. Louisiana, 590 U. S. ___ (2020), applies retroactively to cases on federal collateral review.”
Friday, May 1, 2020
And here are some cases that present interesting procedural, jurisdictional, or other fed-courts-y issues:
Wednesday, May 6:
(1) Whether a litigant who is directly protected by an administrative rule and has been allowed to intervene to defend it lacks standing to appeal a decision invalidating the rule if the litigant is also protected by an injunction from a different court; and
(2) Whether the court of appeals erred in affirming a nationwide preliminary injunction barring implementation of the final rules.
Barr v. American Association of Political Consultants (19-631) has an interesting severance issue. Here’s the question presented: Whether the government-debt exception to the TCPA's automated-call restriction violates the First Amendment, and whether the proper remedy for any constitutional violation is to sever the exception from the remainder of the statute.
Monday, May 11:
McGirt v. Oklahoma (18-9526) presents the question: Whether Oklahoma courts can continue to unlawfully exercise, under state law, criminal jurisdiction as “justiciable matter” in Indian country over Indians accused of major crimes enumerated under the Indian Major Crimes Act--which are under exclusive federal jurisdiction.
Tuesday, May 12:
In Trump v. Mazars USA (19-715) and Trump v. Deutsche Bank AG (19-760), the Court has directed the parties to file supplemental briefs addressing “political question doctrine or related justiciability principles.”
Wednesday, May 13:
Colorado Department of State v. Baca (19-518) presents this question on standing (among others): Whether a presidential elector who is prevented by their appointing State from casting an Electoral College ballot that violates state law lacks standing to sue their appointing State because they hold no constitutionally protected right to exercise discretion.