Thursday, June 6, 2019
Today the en banc Ninth Circuit issued its decision in In Re Hyundai and Kia Fuel Economy Litigation (covered earlier here). Judge Nguyen authors the majority opinion, and Judge Ikuta authors a dissenting opinion.
Contrary to the earlier panel ruling, the en banc Ninth Circuit affirms the district court with respect to both class certification and approval of the settlement.
Monday, June 3, 2019
Today the Supreme Court granted certiorari in Retirement Plans Committee of IBM v. Jander. The question presented relates to the Court’s decision in Fifth Third Bancorp v. Dudenhoeffer, 573 U.S. 409 (2014), on pleading ERISA claims that are based on a breach of the fiduciary duty of prudence:
Whether Fifth Third’s “more harm than good” pleading standard can be satisfied by generalized allegations that the harm of an inevitable disclosure of an alleged fraud generally increases over time.
Wednesday, May 29, 2019
Ion Meyn has published The Haves of Procedure in the William & Mary Law Review. Here’s the abstract:
In litigation, “haves” and “have-nots” battle over what procedures should govern. Yet, much greater hostilities have been avoided—a war between the “haves” themselves. “Criminal haves” (prosecutors) and “civil haves” (institutional players) litigate in separate territories and under different sets of rules. This is good, for them, because they have incompatible objectives. This Article contends that protecting the “haves” from each other has profoundly influenced the development of procedure in the United States.
The “haves” reap significant benefits in being insulated from each other as they seek rules responsive to their unique preferences. A “criminal have” seeks easy access to the forum and thus prefers a permissive pleading standard. In contrast, a “civil have” seeks to impede a plaintiff from bringing suit and thus prefers a demanding pleading standard. As to discovery, “criminal haves,” possessing actionable facts and seeking to control the pretrial distribution of information, resist discovery and judicial involvement. In contrast, “civil haves” often need information to pursue legal objectives, and thus prefer a formal discovery phase, along with the option of judicial intervention to temper instances of discovery abuse. The procedural divide allows the “haves” to achieve these otherwise incompatible objectives.
In the absence of a procedural divide, “criminal haves” and “civil haves” would engage in contestation over what rules govern litigation. This Article suggests that, should civil and criminal litigants be subject to the same rules, as initially proposed during federal reform in the 1940s, the introduction of litigants into a unified forum would result in a fairer approach to procedure, mitigate existing inequalities, and accomplish some litigation objectives of the “havenots.”
Wednesday, May 22, 2019
Seth Endo has published Discovery Hydraulics, 52 UC Davis L. Rev. 1317 (2019). Here’s the abstract:
Discovery reforms invariably have unexpected consequences. But the growth of electronically stored information has led to one constant — an ever-increasing pressure on the finite resources of both the judiciary and litigants. Courts, through their discovery rules, direct where that pressure will be channeled. However, like any force in a closed system, it must be sent somewhere, ultimately requiring difficult tradeoffs amongst the three mainstay procedural justice norms of accuracy, efficiency, and participation. Discovery Hydraulics explores this phenomenon, cataloging how recently proposed or implemented document discovery reforms affect these norms.
In creating the first purposive taxonomy of recent document discovery reforms, Discovery Hydraulics makes three main contributions to the literature by: (1) articulating an understanding of how the treatment of costs and information volume correspond to the accuracy, efficiency, and participation norms; (2) systematically collecting and organizing the plethora of suggestions that have been offered to address the burdens associated with the growth of electronically stored information; and (3) laying out the normative and instrumental benefits of discovery reforms that focus on reducing costs without losing information. Last, but not least, a significant practical benefit is that this analytical approach should provide courts with the tools needed to assess, ex ante, the potential normative effects of changes to document discovery processes.
Thursday, May 9, 2019
Fifty years ago, Charles Alan Wright and Arthur Miller first published the Federal Practice & Procedure treatise. Thomson Reuters is releasing a series of podcasts during 2019 to celebrate the 50th anniversary.
The first episode, which is now posted, features Arthur Miller discussing the initial development of the treatise.
Monday, April 22, 2019
Maureen Carroll has published Class Actions, Indivisibility, and Rule 23(b)(2), 99 B.U. L. Rev. 59 (2019). Here’s the abstract:
The federal class-action rule contains a provision, Rule 23(b)(2), that authorizes class-wide injunctive or declaratory relief for class-wide wrongs. The procedural needs of civil rights litigation motivated the adoption of the provision in 1966, and in the intervening years, it has played an important role in managing efforts to bring about systemic change. At the same time, courts have sometimes struggled to articulate what plaintiffs must show in order to invoke Rule 23(b)(2). A few years ago, the Supreme Court weighed in, stating that the key to this type of class action is the “indivisible” nature of the remedy the plaintiffs seek.
Some defendants have encouraged federal courts to adopt an extremely restrictive version of indivisibility, which I term “endpoint indivisibility,” as a standard for applying Rule 23(b)(2). This Article argues that an endpoint indivisibility requirement would be fundamentally inconsistent with the historical models for Rule 23(b)(2). Moreover, such a requirement would have devastating effects on civil rights litigation. An alternative standard, which I term “root-cause indivisibility,” offers a better logical and historical fit.
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.