Tuesday, March 26, 2019
Now on the Courts Law section of JOTWELL is my essay, When American Pipe Met Erie. I review a recent article by Steve Burbank and Tobias Wolff, Class Actions, Statutes of Limitations and Repose, and Federal Common Law, 167 U. Pa. L. Rev. 1 (2018).
Monday, March 4, 2019
Ten Years of Iqbal: Perspectives on Policy, Procedure, and Substance (Symposium at Cardozo Law School, March 15, 2019)
On Friday, March 15, 2019, the Benjamin N. Cardozo School of Law, Cardozo Law Review, and The Floersheimer Center for Constitutional Democracy are hosting a symposium entitled “Ten Years of Iqbal: Perspectives on Policy, Procedure, and Substance.”
You can find all the details – and register for the symposium (it’s free) – here. Come join us!
From the announcement:
An esteemed group of experts, including the lawyers who argued both sides of the Iqbal case, and leading legal scholars, will examine the decision’s influence on both procedural and substantive law. The conference will examine pleading doctrine, pleading practice, approaches to federal rulemaking and substantive areas of law including national security and civil rights.
The symposium keynote will be given by Arthur R. Miller, Professor at NYU Law, former Bruce Bromley Professor of Law at Harvard Law, and the nation's leading scholar in the field of civil procedure.
Confirmed panelists include:
Wednesday, February 27, 2019
SCOTUS: Rule 23(f)’s 14-day deadline for class-certification appeals is not subject to equitable tolling
Yesterday the Supreme Court issued a unanimous decision in Nutraceutical Corp. v. Lambert, which involves Rule 23(f)’s 14-day deadline for seeking permission to appeal a district court’s class-certification ruling.
In Justice Sotomayor’s opinion, the Court makes clear that the 14-day deadline is not jurisdictional, which means that it “can be waived or forfeited.” [Slip op. at 3-4] Nonetheless, the Court found that it is not subject to equitable tolling:
“Whether a rule precludes equitable tolling turns not on its jurisdictional character but rather on whether the text of the rule leaves room for such flexibility. Here, the governing rules speak directly to the issue of Rule 23(f)’s flexibility and make clear that its deadline is not subject to equitable tolling.” [Slip op. at 4]
Howard Wasserman has a more detailed recap at SCOTUSblog.
Thursday, January 31, 2019
Rhonda Wasserman has posted on SSRN her article, Ascertainability: Prose, Policy, and Process, 50 Conn. L. Rev. 695 (2018). Here’s the abstract:
One of the most hotly contested issues in class action practice today is ascertainability – when and how the identities of individual class members must be ascertained. The courts of appeals are split on the issue, with courts in different circuits imposing dramatically different burdens on putative class representatives. Courts adopting a strict approach require the class representative to prove that there is an administratively feasible means of determining whether class members are part of the class. This burden may be insurmountable in consumer class actions because people tend not to save receipts for purchases of low-cost consumer goods, like soft drinks and snacks and have no other objective proof of their membership in the class. Thus, in circuits adopting the strict approach, class certification may be denied, whereas in other circuits, the same class may be certified. Notwithstanding the circuit split on this critical issue, the Supreme Court has denied several petitions for writs of certiorari raising the issue; the Senate has failed to act on a bill passed by the House to address it; and the Advisory Committee has placed the issue on hold. Given the current state of disuniformity and the resultant inequitable administration of the laws, the time is ripe to address the issue.
Ascertainability is not only of great practical importance, but it is interesting on three different levels. First, there is a question of prose – whether the text of the Rule supports the implication of the strict ascertainability requirement. Second, there is a question of policy – whether concern for the class action defendant, the absent class members, or the trial court overseeing the action justifies imposition of the strict requirement, notwithstanding its harsh impact on consumer class actions. Third, there is a process question: which governmental actor – the lower courts, the Supreme Court, the Advisory Committee on Civil Rules, or Congress – has the greatest institutional competency to resolve the policy issue and establish a uniform approach to ascertainability. This Article addresses each of these questions in turn.
Thursday, December 20, 2018
Campos on the Bolch Judicial Institute’s Guidelines and Best Practices for Implementing the 2018 Amendments to FRCP 23
Today on the Courts Law section of JOTWELL is Sergio Campos’s essay, Practice Makes Perfect. Sergio reviews Guidelines and Best Practices Implementing 2018 Amendments to Rule 23 Class Action Settlement Provisions, which was published in 2018 by the Bolch Judicial Institute at Duke Law School.
Wednesday, December 19, 2018
Diego Zambrano has published Judicial Mistakes in Discovery, 113 Nw. U. L. Rev. 197 (2018). Here’s the abstract:
A recent wave of scholarship argues that judges often fail to comply with binding rules or precedent and sometimes apply overturned laws. Scholars have hypothesized that the cause of this “judicial noncompliance” may be flawed litigant briefing that introduces mistakes into judicial decisions—an idea this Essay calls the “Litigant Hypothesis.” The Essay presents a preliminary study aimed at exploring ways of testing the validity of the Litigant Hypothesis. Employing an empirical analysis that exploits recent amendments to Federal Discovery Rule 26, this Essay finds that the strongest predictor of noncompliance in a dataset of discovery decisions is indeed faulty briefs. This study concludes that the Litigant Hypothesis of noncompliance may have explanatory value.
Saturday, December 1, 2018
Monday, November 19, 2018
Portia Pedro has published Stays, 106 Cal. L. Rev. 869 (2018). Here’s the abstract:
After judges issue final orders and judgments, losing defendants often ask courts to make a determination that may seem to be a mere procedural technicality, but is, instead, a new battleground for injunctive litigation. These judges are deciding whether to grant a stay pending appeal—whether to prevent the enforcement of a court order or judgment until a court has decided the appeal. Because litigating and deciding an appeal can take years and because the issues at the heart of much of civil injunctive litigation are extremely time-sensitive, determining whether to grant or deny a stay is a momentous decision. By deciding requests for stays pending appeal, federal judges have decided if Texas could enforce health and safety regulations, or if clinics could provide abortions in the state; if 300,000 registered voters in Wisconsin would be able to vote, or if the state could enforce its duly-enacted provisions to regulate elections and prevent voter fraud; if states could determine requirements for marriage, or if same-sex couples could marry; if the President could enforce an Executive Order regarding national security, or if Muslims could enter the country regardless of religion; and, arguably, if the forty-third US President would be Al Gore or George W. Bush.
The standard for stay determinations ostensibly includes four factors: (1) the likelihood of success on appeal; (2) the likelihood of irreparable harm pending appeal; (3) the balance of the hardships; and (4) the public interest. However, there is more idiosyncrasy than standard because courts vary so widely regarding what constitutes each prong and the manner in which courts should weigh each prong, if at all. Compounding the absence of a uniform stays standard, courts frequently give no reasoning or opinion for stay determinations. With life-changing (and potentially world-changing) issues on the line pending appeal, stays are a nearly law-free zone. The immense consequences of stay determinations, due to lengthy appeals and the time-bound nature of the underlying injunctions or orders, mean that courts need to make an effort to get stay decisions right.
The author argues that the purpose of a stay pending appeal is to protect a meaningful opportunity to appeal where guaranteed. The Article suggests different standards for stays, turning on whether review is guaranteed or discretionary. The author also asserts that courts should write reasoned opinions for stay decisions.
Friday, November 16, 2018
SCOTUS grants cert to decide the scope of discovery in case challenging 2020 census question about citizenship status
The petition for a writ of mandamus is treated as a petition for a writ of certiorari. The petition for certiorari is granted. Petitioners' brief on the merits is to be filed on or before Monday, December 17, 2018. Respondents' brief on the merits is to be filed on or before Thursday, January 17, 2019. The reply brief is to be filed on or before Monday, February 4, 2019. The case is set for oral argument on Tuesday, February 19, 2019.
The question presented is:
Whether, in an action seeking to set aside agency action under the Administrative Procedure Act, 5 U.S.C. 701 et seq., a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker—including by compelling the testimony of high-ranking Executive Branch officials—when there is no evidence that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis.
Wednesday, September 19, 2018
Zach Clopton has published Procedural Retrenchment and the States, 106 Cal. L. Rev. 411 (2018). Here’s the abstract:
Although not always headline grabbing, the Roberts Court has been highly interested in civil procedure. According to critics, the Court has undercut access to justice and private enforcement through its decisions on pleading, class actions, summary judgment, arbitration, standing, personal jurisdiction, and international law.
While I have much sympathy for the Court’s critics, the current discourse too often ignores the states. Rather than bemoaning the Roberts Court’s decisions to limit court access—and despairing further developments in the age of Trump—we instead might productively focus on the options open to state courts and public enforcement. Many of the aforementioned decisions are not binding on state courts, and many states have declined to follow their reasoning. This Article documents state courts deviating from Twombly and Iqbal on pleading; the Celotex trilogy on summary judgment; Wal-Mart v. Dukes on class actions; and Supreme Court decisions on standing and international law. Similarly, many of the Court’s highly criticized procedural decisions do not apply to public enforcement, and many public suits have proceeded where private litigation would have failed. This Article documents successful state-enforcement actions when class actions could not be certified, when individual claims would be sent to arbitration, and when private plaintiffs would lack Article III standing.
In sum, this Article evaluates state court and state-enforcement responses to the Roberts Court’s procedural decisions, and it suggests further interventions by state courts and public enforcers that could offset the regression in federal court access. At the same time, this analysis also illuminates serious challenges for those efforts, and it offers reasons to be cautious about state procedure and enforcement. Leveling down to state actors may not completely escape the political forces that have shaped federal procedure, and it may exacerbate some of the political economies that have undermined private enforcement and private rights to date.
Monday, August 27, 2018
Andrew Hammond has posted on SSRN a draft of his article, Pleading Poverty in Federal Court, which is forthcoming in the Yale Law Journal. Here’s the abstract:
What must a poor person plead to gain access to the federal courts? How do courts decide when a poor litigant is poor enough? This Article answers those questions with the first comprehensive study of how district courts determine when a litigant may proceed in forma pauperis in a civil lawsuit. This Article shows that district courts lack standards to determine a litigant’s poverty and often require litigants to answer an array of questions to little effect. As a result, discrepancies in federal practice abound—across and within district courts—and produce a pleading system that is irrational, inefficient, and invasive. This Article makes four contributions. First, it codes all the poverty pleadings currently used by the 94 federal district courts. Second, the Article shows that the flaws of these pleading procedures are neither inevitable nor characteristic of poverty determinations. By comparing federal practice to other federal means tests and state court practices, the Article demonstrates that a more streamlined, yet rights-respecting approach is possible. Third, the Article proposes a coherent in forma pauperis standard—one that would align federal practice with federal law, promote reasoned judicial administration, and protect the dignity of litigants. Such a solution proves that judges need not choose between extending access to justice and preserving court resources. In this instance and perhaps others, judges can serve both commitments of the federal system. Fourth, the Article illustrates how to study procedure from the bottom up. Given the persistent and widening levels of inequality in American society, no account of civil procedure is complete without an understanding of how poor people litigate today.
Thursday, August 16, 2018
This week the Judicial Conference Committee on Rules of Practice and Procedure (aka the Standing Committee) approved the publication of a proposed amendment to Federal Rule of Civil Procedure 30(b)(6). The amendment would impose a requirement to “confer in good faith about the number and description of the matters for examination and the identity of each person the organization will designate to testify.”
You can find the proposed FRCP 30(b)(6) amendment – along with proposed amendments to the Appellate, Bankruptcy, and Evidence Rules – here.
The period to submit written comments on the proposed amendments runs until February 15, 2019.
You can find more information about submitting written comments and presenting testimony at public hearings here.
Friday, August 10, 2018
Today Wikileaks was served via Twitter, pursuant to FRCP 4(f)(3), in Democratic National Committee v. The Russian Federation et al., No. 18-cv-3501 (SDNY).
Here's the tweet effecting service:
Here's the court's order (from earlier this week) authorizing service via Twitter:
Here's the plaintiff's motion:
Friday, July 27, 2018
Earlier this year the Ninth Circuit issued a 2-1 decision in In re Hyundai and Kia Fuel Economy Litigation. The panel reversed the district court’s certification of a settlement class involving claims against Hyundai and Kia over their vehicles’ fuel efficiency. The decision was particularly controversial because of the majority’s choice-of-law analysis and its potential impact on certifying nationwide classes.
Today the full Ninth Circuit granted en banc rehearing.
Oral argument is scheduled for the week of September 24, 2018.
Thursday, July 26, 2018
SDNY rules on motions to dismiss cases challenging addition of a citizenship status question to 2020 census
Today U.S. District Judge Jesse Furman (S.D.N.Y.) issued an opinion and order granting in part and denying in part the defendants’ motion to dismiss two related cases, New York v. United States Department of Commerce and New York Immigration Coalition v. United States Department of Commerce. The plaintiffs in these cases are challenging—on a number of grounds—Commerce Secretary Wilbur Ross’s decision to reinstate a question on citizenship status for the 2020 census. The upshot, as the court summarizes is this:
Plaintiffs’ claims under the Enumeration Clause — which turn on Secretary Ross’s power rather than his purposes — must be and are dismissed. By contrast, their claims under the APA (which Defendants seek to dismiss solely on jurisdictional and justiciability grounds) and the Due Process Clause — which turn at least in part on Secretary Ross’s purposes and not merely on his power — may proceed.
In reaching this conclusion, the opinion covers a number of interesting issues, including Article III standing, the political question doctrine, and whether the plaintiffs plausibly alleged discriminatory animus for purposes of their equal protection claim under the Due Process Clause.
In Lewis v. Governor of Alabama, the Eleventh Circuit reversed the district court’s dismissal of an equal protection challenge to a 2016 Alabama statute that nullified a Birmingham city ordinance raising the minimum wage to $10.10. Here’s the introductory paragraph:
For a single day in February 2016, Marnika Lewis and Antoin Adams secured a pay raise. The Mayor of Birmingham, Alabama, William Bell, had just affixed his signature to Birmingham Ordinance No. 16-28, which guaranteed Lewis, Adams, and all other wage earners in the city $10.10 per hour. But the following afternoon, Alabama Governor Robert Bentley signed the Minimum Wage and Right-to-Work Act (The Minimum Wage Act or the Act) into law. The Minimum Wage Act nullified Birmingham Ordinance No. 16-28, preempted all local labor and employment regulation, and mandated a uniform minimum wage throughout Alabama—which, then and now, sits at $7.25 per hour. At the heart of this appeal is whether Lewis and Adams have stated a plausible claim that the Minimum Wage Act had the purpose and effect of discriminating against Birmingham’s black citizens, in violation of the Equal Protection Clause of the Fourteenth Amendment. Because they have, we reverse the dismissal of that claim. We affirm the dismissal of all other claims.
The opinion addresses standing, sovereign immunity, and pleading standards. As to pleading, the court concludes:
Here, a sensitive but thorough examination of the plaintiffs’ detailed allegations leads us to conclude that they have plausibly alleged a discriminatory motivation behind the Minimum Wage Act, despite the law’s neutrality and rationale. This is all that is required for their claim to survive a motion to dismiss.
Thursday, July 19, 2018
Matthew Shapiro has published Delegating Procedure, 118 Colum. L. Rev. 983 (2018). Here’s the abstract:
The rise of arbitration has been one of the most significant developments in civil justice. Many scholars have criticized arbitration for, among other things, “privatizing” or “delegating” the state’s dispute-resolution powers and allowing private parties to abuse those powers with virtual impunity. An implicit assumption underlying this critique is that civil procedure, in contrast to arbitration, does not delegate significant state power to private parties.
This Article challenges that assumption and argues that we can address many of the concerns about arbitration by drawing on civil procedure’s solutions to its own delegation problem. From summonses to subpoenas to settlements, civil procedure pervasively delegates state power during ordinary civil litigation. With these delegations comes the potential for abuse. But rather than limit private parties’ access to delegated power before any abuse has occurred, civil procedure generally polices its delegations for abuse after the fact. It does so in three main ways: by rescinding delegated power, as in the appointment of discovery masters; by withholding enforcement from an exercise of delegated power, as in civil Batson; and by punishing abuse of delegated power, as in Rule 11 sanctions. Civil procedure’s delegation-policing doctrines allow the state not only to protect private parties from harm but also to avoid becoming complicit in private exercises of delegated power that offend important public values.
Arbitration’s delegations of state power present many of the same problems as civil procedure’s, and scholars have rightly criticized the current arbitration regime for essentially writing a blank check to private parties. But whereas most scholars have focused on restricting access to arbitration’s delegations by deeming broad categories of arbitration clauses unenforceable, this Article suggests adapting civil procedure’s delegation-policing doctrines for arbitration. Even if courts continue to enforce arbitration clauses more often than arbitration’s critics would prefer, they should police arbitration’s delegations more closely than the law now permits.
Wednesday, July 18, 2018
This week the Sixth Circuit decided Martin v. Behr Dayton Thermal Products, affirming the district court’s decision to certify various issues for class treatment under Rule 23(c)(4). The court sided with what it called “the broad view” of the relationship between Rule 23(b)(3)’s requirements and issue class actions under Rule 23(c)(4). From Judge Stranch’s opinion:
Under what is known as the broad view, courts apply the Rule 23(b)(3) predominance and superiority prongs after common issues have been identified for class treatment under Rule 23(c)(4). The broad view permits utilizing Rule 23(c)(4) even where predominance has not been satisfied for the cause of action as a whole.
After reviewing the circuit split over this question, the opinion concludes:
In sum, Rule 23(c)(4) contemplates using issue certification to retain a case’s class character where common questions predominate within certain issues and where class treatment of those issues is the superior method of resolution. See Nassau, 461 F.3d at 226; Fed. R. Civ. P. 23(c)(4) adv. comm. n. to 1966 amend. A requirement that predominance must first be satisfied for the entire cause of action would undercut the purpose of Rule 23(c)(4) and nullify its intended benefits. The broad approach is the proper reading of Rule 23, in light of the goals of that rule.
Tuesday, June 26, 2018
Yesterday’s Supreme Court order list included grants of certiorari in several cases, including these three:
Sudan v. Harrison presents the question:
Whether the Second Circuit erred by holding — in direct conflict with the D.C., Fifth, and Seventh Circuits and in the face of an amicus brief from the United States — that plaintiffs suing a foreign state under the Foreign Sovereign Immunities Act may serve the foreign state under 28 U.S.C § 1608(a)(3) by mail addressed and dispatched to the head of the foreign state’s ministry of foreign affairs “via” or in “care of” the foreign state’s diplomatic mission in the United States, despite U.S. obligations under the Vienna Convention on Diplomatic Relations to preserve mission inviolability.
Nutraceutical Corp. v. Lambert presents the question:
Federal Rule of Civil Procedure 23(f) establishes a fourteen-day deadline to file a petition for permission to appeal an order granting or denying class-action certification. On numerous occasions, this Court left undecided whether mandatory claim-processing rules, like Rule 23(f), are subject to equitable exceptions, because the issue was not raised below. See, e.g., Hamer v. Neighborhood Hous. Serv. of Chicago, 138 S. Ct. 13, 18 n.3, 22 (2017). That obstacle is not present here. The question presented is: did the Ninth Circuit err by holding that equitable exceptions apply to mandatory claim-processing rules and excusing a party’s failure to timely file a petition for permission to appeal, or a motion for reconsideration, within the Rule 23(f) deadline? As the Ninth Circuit acknowledged below, its decision conflicts with other United States Circuit Courts of Appeals that have considered this issue (the Second, Third, Fourth, Fifth, Seventh, Tenth, and Eleventh Circuits).
The question presented is: did the Ninth Circuit err by holding that equitable exceptions apply to mandatory claim-processing rules and excusing a party’s failure to timely file a petition for permission to appeal, or a motion for reconsideration, within the Rule 23(f) deadline?
And Henry Schein, Inc. v. Archer and White Sales, Inc. presents the question:
Whether the Federal Arbitration Act permits a court to decline to enforce an agreement delegating questions of arbitrability to an arbitrator if the court concludes the claim of arbitrability is “wholly groundless.”
June 26, 2018 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, International/Comparative Law, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)
Thursday, June 14, 2018
SCOTUS decision in Animal Science: Deference to a foreign government’s statement about its own domestic law
Today the Supreme Court issued a unanimous decision in Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. (covered earlier here). Justice Ginsburg’s opinion for the Court begins:
When foreign law is relevant to a case instituted in a federal court, and the foreign government whose law is in contention submits an official statement on the meaning and interpretation of its domestic law, may the federal court look beyond that official statement? The Court of Appeals for the Second Circuit answered generally “no,” ruling that federal courts are “bound to defer” to a foreign government’s construction of its own law, whenever that construction is “reasonable.” In re Vitamin C Antitrust Litigation, 837 F. 3d 175, 189 (2016).
We hold otherwise. A federal court should accord respectful consideration to a foreign government’s submission, but is not bound to accord conclusive effect to the foreign government’s statements. Instead, Federal Rule of Civil Procedure 44.1 instructs that, in determining foreign law, “the court may consider any relevant material or source . . . whether or not submitted by a party.” As “[t]he court’s determination must be treated as a ruling on a question of law,” Fed. Rule Civ. Proc. 44.1, the court “may engage in its own research and consider any relevant material thus found,” Advisory Committee’s 1966 Note on Fed. Rule Civ. Proc. 44.1, 28 U. S. C. App., p. 892 (hereinafter Advisory Committee’s Note). Because the Second Circuit ordered dismissal of this case on the ground that the foreign government’s statements could not be gainsaid, we vacate that court’s judgment and remand the case for further consideration.
[In the interest of full disclosure, I joined an amicus brief in this case on behalf of law professors in support of neither party. The brief urged the Supreme Court not to endorse the Second Circuit’s doctrine of abstention based on international comity. It didn’t.]