Thursday, October 15, 2020
Yesterday, Judge Polster partially granted the plaintiffs’ motion for sanctions against the Allergan and Teva defendants in the In re: National Prescription Opiate Litigation MDL. The issue was “whether the Plaintiffs are entitled to some relief, given that they only recently received a critical document (‘the Cegidim Report’), even though the Court ordered the Report must be produced and even though Plaintiffs asked Allergan and Teva for it numerous times during discovery in the last 18 months.”
Judge Polster explained:
[I]f the Cegidim Report supported, rather than contradicted, assertions Teva and Allergan made in their summary judgment briefing, it seems awfully likely the defendants would have worked more diligently to find it. And that is the level of diligence that was required, regardless.
Here is the full order:
Tuesday, September 29, 2020
I posted on SSRN a draft of my article, Appellate Courts and Civil Juries. Here’s the abstract:
In federal civil litigation, decisionmaking power is shared by juries, trial courts, and appellate courts. This article examines an unresolved tension in the different doctrines that allocate authority among these institutions, which has led to confusion regarding the relationship between appellate courts and civil juries. At base, the current uncertainty stems from a longstanding lack of clarity regarding the distinction between matters of law and matters of fact. The high-stakes Oracle-Google litigation—which is now before the Supreme Court—exemplifies this. In that case, the Federal Circuit reasoned that an appellate court may assert de novo review over a jury's verdict simply by characterizing a particular issue as legal rather than factual. But this approach misperceives the approach demanded by Rule 50 of the Federal Rules of Civil Procedure, which permits judicial override of a jury's verdict only when "a reasonable jury would not have a legally sufficient evidentiary basis" to reach such a verdict.
Rule 50's reasonable-jury standard does not permit de novo review of a jury's verdict on a particular issue. Rather, it requires deference to the jury's conclusion on that issue unless the reviewing court can explain why principles of substantive law or other aspects of the trial record render that verdict unreasonable. This deferential standard of review faithfully implements the text and structure of the Federal Rules and respects the jury's role in our federal system. Yet it also preserves appellate courts' ability to provide meaningful clarification that will guide future decisionmakers.
As the abstract indicates, the Supreme Court may be wrestling with this issue this coming Term in Google LLC v. Oracle America, Inc., which is scheduled for oral argument (telephonically) next Wednesday.
Thanks to the Southeastern Association of Law Schools for letting me present an earlier draft of this paper back in July at the SEALS 2020 Annual Conference Federal Courts and Procedure Panel. I got a lot of great feedback.
Friday, September 25, 2020
Yesterday, the Sixth Circuit issued a 2-1 decision in In re National Prescription Opiate Litigation, a much-anticipated case about the certification of a negotiation class in the Opioid MDL.
The majority reversed the district court’s certification of a negotiation class. Judge Clay’s majority opinion called it a “novel form of class action.” He observes that Rule 23 “does not mention certification for purposes of ‘negotiation’ or anything along those lines” and writes that “a new form of class action, wholly untethered from Rule 23, may not be employed by a court.” He also found that the district court’s certification of the negotiation class had “papered over the predominance inquiry” required by Rule 23(b)(3).
Judge Moore disagrees, with a 40+ page dissent that begins:
The Federal Rules of Civil Procedure were not written and have never been interpreted to manacle district courts that innovate within the Rules’ textual borders. The district court has breathed life into a novel concept—a class certified for negotiation purposes—to aid in its Promethean duty to secure the just, speedy, and inexpensive resolution of this byzantine multidistrict litigation. We should be in the business of encouraging, not exterminating, such resourcefulness. Certifying a negotiation class honors the Rules’ equitable heritage, complements the settlement class’s history, hews to Federal Rule of Civil Procedure 23’s textual requisites, and stirs no constitutional or policy qualms. So, with respect, I dissent.
The entire dissent is worth a read. Before proceeding to analyze whether the district court properly certified the proposed negotiation class, Part I of Judge Moore’s opinion addresses the proper approach to interpreting and applying the Federal Rules of Civil Procedure, and Part II provides an engaging history of Rule 23.
Wednesday, August 26, 2020
Judge Patrick Higginbotham, Judge Lee Rosenthal, and Professor Steve Gensler have published Better by the Dozen: Bringing Back the Twelve-Person Civil Jury in the latest issue of Judicature. Their article begins:
A jury of 12 resonates through the centuries. Twelve-person juries were a fixture from at least the 14th century until the 1970s. Over 600 years of history is a powerful endorsement. So too are the many social-science studies consistently showing that a 12-person jury makes for a better deliberative process, with more predictable (and fewer outlier) results, by a more diverse group that is a more representative cross-section of the community. To that, add the benefit of engaging more citizens in the best civics lesson the judiciary offers. To all of that, add our common sense telling us that 12 heads are better than six, or eight, or even ten.
History. Social science. Civics. Common sense. That’s a powerful quartet. And yet, most federal judges today routinely seat civil juries without the full complement of 12 members. Why? Because in 1973 the United States Supreme Court said it was okay. Since then, the smaller-than-12-person jury has become a habit. For many courts, it has become the default.
Monday, August 10, 2020
The Ninth Circuit recently issued its decision in Judd v. Weinstein. Judge Murguia’s opinion reverses the district court’s dismissal of Ashley Judd’s state-law sexual harassment claim against producer Harvey Weinstein.
In doing so, the court confronts an issue of “first impression under California law” and proceeds to “predict how the California Supreme Court would resolve it.” The court also finds that Judd’s complaint passes muster under Iqbal, despite Weinstein’s argument that she failed to adequately allege a professional relationship at the time of the alleged harassment:
Judd sufficiently alleged a “business, service, or professional relationship” at the time of the alleged harassment: Judd alleged that she established a professional relationship with Weinstein after working on the 1995 Miramax film Smoke, and went to the Peninsula Hotel in hopes of building upon that existing relationship to discuss future professional endeavors. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”). Moreover, Judd alleged that “at the time of the harassment, [she] was discussing potential roles in films produced or distributed by Weinstein or Miramax.” This is more than enough to allege a professional relationship at the time of the alleged harassment.
(H/T: Aaron Caplan)
Tuesday, August 4, 2020
Elizabeth Cabraser and I have posted on SSRN our recent article, What Is a Fair Price for Objector Blackmail? Class Actions, Objectors, and the 2018 Amendments to Rule 23, 24 Lewis & Clark L. Rev. 549 (2020). Here’s the abstract:
As part of a symposium addressing what the next 50 years might hold for class actions, mass torts, and MDLs, this Article examines a recent amendment to Rule 23 that offers a new solution to the persistent problem of strategic objections. Most significantly, Rule 23 now requires the district judge to approve any payments made to class members in exchange for withdrawing or forgoing challenges to a class action settlement. Although the new provision is still in its infancy, it has already been deployed to thwart improper objector behavior and to bring for-pay objection practice out of the shadows. The 2018 changes — along with other on-the-ground developments — are important steps toward improving the class action settlement process.
Friday, July 24, 2020
Last week, the Second Circuit issued its decision in La Liberte v. Reid. Judge Jacobs’ opinion addresses a thorny question that has divided the circuits—whether state anti-SLAPP statutes apply in federal court under the Erie doctrine/Rules Enabling Act framework. The specific state provision in this case is California’s “special motion to strike” procedure. Here are some highlights:
The test is whether “a Federal Rule of Civil Procedure ‘answer[s] the same question’ as the [special motion to strike].” Abbas, 783 F.3d at 1333 (alteration in original) (quoting Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 398–99 (2010)). If so, the Federal Rule governs, unless it violates the Rules Enabling Act. Id. Applying that test, we first conclude that the special motion to strike in California’s anti-SLAPP statute answers the same question as Federal Rules 12 and 56.
* * *
Since Rules 12 and 56 answer the same question as California’s special motion to strike, they “govern in diversity cases in federal court, unless Rules 12 and 56 violate the Rules Enabling Act.” Abbas, 783 F.3d at 1336. “So far, the Supreme Court has rejected every challenge to the Federal Rules that it has considered under the Rules Enabling Act.” Id. Neither Reid nor amici curiae invite us to deviate. Still, we briefly address the question for the sake of completeness. The test is “whether a rule really regulates procedure,--the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for disregard or infraction of them.” Sibbach v. Wilson & Co., 312 U.S. 1, 14 (1941). Like the Eleventh Circuit, “[w]e have little difficulty concluding” that Rules 12 and 56 “comply with the Rules Enabling Act,” particularly because they “‘affect only the process of enforcing litigants’ rights and not the rights themselves.’” Carbone, 910 F.3d at 1357 (second alteration in original) (quoting Burlington N. R.R. Co. v. Woods, 480 U.S. 1, 8, (1987)). Accordingly, federal courts must apply Rules 12 and 56 instead of California’s special motion to strike.
H/T: Howard Wasserman
Wednesday, July 1, 2020
Today on the Courts Law section of JOTWELL is Seth Endo’s essay, Charting the Interactions of Legal Tech and Civil Procedure. Seth reviews David Engstrom and Jonah Gelbach’s article, Legal Tech, Civil Procedure, and the Future of Adversarialism, 169 U. Pa. L. Rev. (forthcoming 2020).
Monday, June 29, 2020
Today the Supreme Court issued its decision in June Medical Services L.L.C. v. Russo. By a 5-4 vote, the Court strikes down Louisiana’s admitting-privileges law (Act 620) as imposing an undue burden on women seeking an abortion. The five-Justice majority comes from Justice Breyer’s opinion, which is joined by Justices Ginsburg, Sotomayor, and Kagan, and Chief Justice Roberts’ concurring opinion. Justices Thomas, Alito, Gorsuch, and Kavanaugh dissent—each of them authoring dissenting opinions.
In addition to the substantive constitutional issues regarding access to abortion, the case implicates some interesting civil procedure and federal courts issues: standing, standards of review, and stare decisis.
The standing issue is whether the plaintiffs, who were abortion providers and clinics, could challenge the Louisiana law as infringing their patients’ rights. Justice Breyer’s opinion concludes that Louisiana waived its standing argument:
The State’s argument rests on the rule that a party cannot ordinarily “‘rest his claim to relief on the legal rights or interests of third parties.’” Kowalski v. Tesmer, 543 U. S. 125, 129 (2004) (quoting Warth v. Seldin, 422 U. S. 490, 499 (1975)). This rule is “prudential.” 543 U. S., at 128–129. It does not involve the Constitution’s “case-or-controversy requirement.” Id., at 129; see Craig v. Boren, 429 U. S. 190, 193 (1976); Singleton v. Wulff, 428 U. S. 106, 112 (1976). And so, we have explained, it can be forfeited or waived. See Craig, 429 U. S., at 193–194.
Louisiana had argued in the lower courts that “there was ‘no question that the physicians had standing to contest’ Act 620.” This was an “unmistakable concession,” according to Justice Breyer. He adds that “even if the State had merely forfeited its objection by failing to raise it at any point over the last five years, we would not now undo all that has come before on that basis.” He explains:
What we said some 45 years ago in Craig applies equally today: “[A] decision by us to forgo consideration of the constitutional merits”—after “the parties have sought or at least have never resisted an authoritative constitutional determination” in the courts below—“in order to await the initiation of a new challenge to the statute by injured third parties would be impermissibly to foster repetitive and time-consuming litigation under the guise of caution and prudence.” 429 U. S., at 193–194 (quotation altered).
Justice Breyer also questions whether Louisiana’s standing argument would be persuasive in any event, noting that “[w]e have long permitted abortion providers to invoke the rights of their actual or potential patients in challenges to abortion-related regulations.”
Chief Justice Roberts concurs in Justice Breyer’s standing analysis: “For the reasons the plurality explains, ante, at 11–16, I agree that the abortion providers in this case have standing to assert the constitutional rights of their patients.”
2. Standard of Appellate Review
Another procedural issue is the standard of appellate review regarding the district court’s findings. Justice Breyer’s opinion notes:
We start from the premise that a district court’s findings of fact, “whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.” Fed. Rule Civ. Proc. 52(a)(6). In “‘applying [this] standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo.’” Anderson v. Bessemer City, 470 U. S. 564, 573 (1985) (quoting Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U. S. 100, 123 (1969)).
And the opinion concludes:
We conclude, in light of the record, that the District Court’s significant factual findings—both as to burdens and as to benefits—have ample evidentiary support. None is “clearly erroneous.” Given the facts found, we must also uphold the District Court’s related factual and legal determinations. These include its determination that Louisiana’s law poses a “substantial obstacle” to women seeking an abortion; its determination that the law offers no significant health-related benefits; and its determination that the law consequently imposes an “undue burden” on a woman’s constitutional right to choose to have an abortion. We also agree with its ultimate legal conclusion that, in light of these findings and our precedents, Act 620 violates the Constitution.
Chief Justice Roberts also emphasizes the deferential standard of review:
The question is not whether we would reach the same findings from the same record. These District Court findings “entail[ed] primarily . . . factual work” and therefore are “review[ed] only for clear error.” U. S. Bank N. A. v. Village at Lakeridge, LLC, 583 U. S. ___, ___, ___ (2018) (slip op., at 6, 9). Clear error review follows from a candid appraisal of the comparative advantages of trial courts and appellate courts.
3. Stare Decisis
And of course, the case presents important questions of stare decisis, especially in light of the Supreme Court’s 2016 decision in Whole Woman’s Health v. Hellerstedt, which struck down Texas’s admitting privileges requirement. Stare decisis is key to Chief Justice Roberts’ tie-breaking fifth vote in favor of the plaintiffs: “I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.” Roberts concludes:
Stare decisis instructs us to treat like cases alike. The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law. The Louisiana law burdens women seeking previability abortions to the same extent as the Texas law, according to factual findings that are not clearly erroneous. For that reason, I concur in the judgment of the Court that the Louisiana law is unconstitutional.
Friday, June 19, 2020
Yesterday the Supreme Court issued its decision in Department of Homeland Security v. Regents of University of California. As folks are surely aware by now, the Court voted 5-4 to vacate the Trump administration’s rescission of the Deferred Action for Childhood Arrivals (DACA) program as “arbitrary and capricious” under the Administrative Procedure Act (APA).
The case raised some interesting issues relating to civil procedure and federal courts that are worth flagging. The first is pleading. On the APA issue, Chief Justice Roberts authors the majority opinion, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. But the plaintiffs had also argued that the rescission of DACA violated the equal protection component of the Fifth Amendment because the rescission was motivated by discriminatory animus. In Part IV—which Justice Sotomayor did not join—Chief Justice Roberts finds that the plaintiffs’ allegations of animus were “insufficient.” He writes:
To plead animus, a plaintiff must raise a plausible inference that an “invidious discriminatory purpose was a motivating factor” in the relevant decision. Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 266 (1977). Possible evidence includes disparate impact on a particular group, “[d]epartures from the normal procedural sequence,” and “contemporary statements by members of the decisionmaking body.” Id., at 266–268. Tracking these factors, respondents allege that animus is evidenced by (1) the disparate impact of the rescission on Latinos from Mexico, who represent 78% of DACA recipients; (2) the unusual history behind the rescission; and (3) pre- and post-election statements by President Trump. Brief for New York 54–55.
None of these points, either singly or in concert, establishes a plausible equal protection claim.
Justice Sotomayor does not join this part of Chief Justice Roberts’ opinion, and she writes a partial dissent on the equal protection issues. From her opinion:
Respondents’ equal protection challenges come to us in a preliminary posture. All that respondents needed to do at this stage of the litigation was state sufficient facts that would “allo[w a] court to draw the reasonable inference that [a] defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U. S. 662, 678 (2009). The three courts to evaluate respondents’ pleadings below held that they cleared this modest threshold. 908 F. 3d 476, 518–520 (CA9 2018) (affirming the District Court’s denial of the Government’s motion to dismiss); see also Batalla Vidal v. Nielsen, 291 F. Supp. 3d 260, 274 (EDNY 2018).
I too would permit respondents’ claims to proceed on remand. The complaints each set forth particularized facts that plausibly allege discriminatory animus.
The Supreme Court’s handling of the equal protection claims raises another recurring chestnut for federal courts enthusiasts: the Marks rule and nonmajority opinions. The dissenting justices on the APA issue—Justices Thomas, Alito, Gorsuch, and Kavanaugh—write that they “concur in the judgment insofar as the Court rejects [the] equal protection claim.” It’s not clear, however, whether and how those votes can be added to the four-justice plurality on the plaintiffs’ pleading of their equal protection claims to generate a binding “majority” opinion on that issue.
Finally, it’s worth noting that the Court avoided the recurring-yet-still-unaddressed question of nationwide injunctions (see, e.g., here). Footnote 7 of Chief Justice Roberts’ opinion explains that, because the Supreme Court affirmed the D.C. federal court’s order vacating the Trump administration’s rescission of DACA, it was “unnecessary to examine the propriety of the nationwide scope of the injunctions” that had been issued by other federal courts.
Friday, June 12, 2020
Susan Provenzano has posted on SSRN a draft of her article, Can Speech Act Theory Save Notice Pleading?, which is forthcoming in the Indiana Law Journal. Here’s the abstract:
Countless scholars have debated—and lower courts have attempted to apply—the plausibility pleading regime that the Supreme Court introduced in Twombly and Iqbal. Iqbal took Twombly’s requirement that a complaint plead plausibly and turned it into a two-step test. Under that test, the life or death of a lawsuit rests on the distinction between “well-pleaded” and “conclusory” allegations. Only the former are assumed true on a motion to dismiss. Seven decades of pleading precedent had taken a sensible, if unstable, approach to the truth assumption, making a single cut between factual contentions (assumed true) and legal conclusions (ignored). But Iqbal redrew those lines. It treats as legal conclusions an entire subset of factual allegations and does so whenever, in the court’s view, those facts are presented too generally or too rhetorically. To date, the contours of “conclusory” have not been pinned down by legal-theoretic approaches, while lower court reactions range from conflicting to confused to avoidant. It is clearer than ever that Iqbal left an analytical void in the wake of its novel pleading inquiry—a void that must be filled in a stable way while recognizing the FRCP’s normative commitments.
That way is through speech act theory. Speech act theory is a philosophy of language that employs a descriptive methodology for understanding what speakers mean with their words. A speech act- theoretic approach targets Iqbal’s central flaws—failing to treat pleading as an act of communication, and ignoring how the pleader intends her allegations to function in the pleading conversation. Indeed, Iqbal makes the judge’s omniscient view of meaning the decisive factor. Furthermore, Iqbal conflates two types of speech acts whose difference was vital pre-Iqbal: allegations meant to report, which merit the truth assumption, and allegations meant to accuse, which do not. Speech act theory shores up pre-Iqbal instability and offers a consistent analytical approach for granting allegations the assumption of truth based on communicative meaning. Using speech act theory to set the parameters of “conclusory” also opens the doors of discovery to complaints that do their job as the FRCP intended: providing functional fair notice of the nature of the plaintiff’s claims and the grounds on which they rest.
Thursday, June 4, 2020
In addition to Monday’s decision on Article III standing in Thole v. U.S. Bank, here are some other notable developments at One First Street this week...
The Court issued a 7-2 decision in Banister v. Davis. Justice Kagan’s majority opinion holds that a habeas petitioner’s FRCP 59(e) motion to alter or amend the habeas court’s judgment is not a second or successive habeas petition for purposes of 28 U.S.C. § 2244. Justice Alito writes a dissent, joined by Justice Thomas. Check out Steve Vladeck’s analysis at SCOTUSblog.
The Court issued a unanimous decision in GE Energy Power Conversion France SAS v. Outokumpu Stainless USA, LLC. Justice Thomas’s opinion holds that the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (a.k.a. the New York Convention) does not conflict with domestic equitable estoppel doctrines permitting the enforcement of arbitration agreements by nonsignatories. Justice Sotomayor authors a concurring opinion. Ronald Mann analyzes the decision at SCOTUSblog.
The Court issued a 7-2 decision in Nasrallah v. Barr. Justice Kavanaugh’s majority opinion interprets 8 U.S.C. § 1252(a)(2) to permit the federal courts of appeals to review a factual challenge to an order denying relief under the Convention Against Torture, even for individuals who committed a crime specified in § 1252(a)(2)(C). Justice Thomas writes a dissent, joined by Justice Alito. Check out Jennifer Chacon’s analysis at SCOTUSblog and Bryan Lammon’s post at Final Decisions.
Finally, Monday’s order list included denials of certiorari in two cases—Comcast v. Tillage and AT&T Mobility v. McArdle—involving FAA preemption of state law on the enforceability of contractual provisions that waive a party’s right to seek public injunctive relief. Alison Frankel has coverage at Reuters (On the Case).
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, April 28, 2020
Yesterday the Supreme Court adopted an amendment to the Federal Rules of Civil Procedure (covered earlier here) and transmitted it to Congress. This amendment would add to Rule 30(b)(6) (the provision for a subpoena or notice of deposition directed to an organization) a duty to confer about the matters for examination. It would add the following language: “Before or promptly after the notice or subpoena is served, the serving party and the organization must confer in good faith about the matters for examination.”
Here is the full Rules Package that has been transmitted to Congress.
Thursday, April 16, 2020
Yesterday a Sixth Circuit panel issued its decision in In re National Prescription Opiate Litigation, granting the pharmacy defendants’ petition for a writ of mandamus regarding the district court’s order allowing the counties to amend their complaints to add new claims in advance of an upcoming bellwether trial. Judge Kethledge’s opinion begins:
The rule of law applies in multidistrict litigation under 28 U.S.C. § 1407 just as it does in any individual case. Nothing in § 1407 provides any reason to conclude otherwise. Moreover, as the Supreme Court has made clear, every case in an MDL (other than cases for which there is a consolidated complaint) retains its individual character. That means an MDL court’s determination of the parties’ rights in an individual case must be based on the same legal rules that apply in other cases, as applied to the record in that case alone. Within the limits of those rules, of course, an MDL court has broad discretion to create efficiencies and avoid duplication—of both effort and expenditure—across cases within the MDL. What an MDL court may not do, however, is distort or disregard the rules of law applicable to each of those cases.
The rules at issue here are the Federal Rules of Civil Procedure, which have the same force of law that any statute does. The petitioners seek a writ of mandamus, on grounds that, in three instances, the district court has either disregarded or acted in flat contradiction to those Rules. We grant the writ.
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.”
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 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.”
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, December 20, 2019