Wednesday, September 23, 2020
Monday’s episode of the Strict Scrutiny podcast—with Leah Litman, Melissa Murray, Anne Joseph O’Connell, and Kate Shaw—has an interesting exchange about RBG and civil procedure (starting at around 14:00).
Friday, September 18, 2020
Last week, Donald Trump filed a petition for certiorari challenging the Fourth Circuit’s en banc decision in In re Trump. That case arises from a lawsuit filed in Maryland federal court alleging violations of the Emoluments Clauses. As covered earlier, the Fourth Circuit ultimately allowed the lawsuit to proceed, refusing to grant Trump a writ of mandamus directing the district court to dismiss the case.
The pending Supreme Court case is captioned Trump v. District of Columbia, and the questions are focused on appellate jurisdiction:
- Whether a writ of mandamus is appropriate because, contrary to the holding of the court of appeals, the district court’s denial of the President’s motion to dismiss was clear and indisputable legal error.
- Whether a writ of mandamus is appropriate, contrary to the holding of the court of appeals, where the district court’s refusal to grant the President’s motion to certify an interlocutory appeal was a clear abuse of discretion under 28 U.S.C. 1292(b).
If folks are interested, I talk about some of these issues in a recent article Appellate Jurisdiction and the Emoluments Litigation, which was part of the Akron Law Review’s recent symposium on federal appellate procedure.
Monday, August 31, 2020
We covered earlier the D.C. Circuit’s grant of a writ of mandamus in In re Flynn, which involves the federal government’s Rule 48(a) motion to dismiss the criminal charges against Michael Flynn. Today the en banc D.C. Circuit reversed course, denying Flynn’s request for a writ of mandamus by an 8-2 vote.
From the court’s per curiam opinion:
As to Petitioner’s first two requests—to compel the immediate grant of the Government’s motion, and to vacate the District Court’s appointment of amicus—Petitioner has not established that he has “no other adequate means to attain the relief he desires.” Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004) (quoting Kerr v. U.S. Dist. Court for N. Dist. of Cal., 426 U.S. 394, 403 (1976)). We also decline to mandate that the case be reassigned to a different district judge, because Petitioner has not established a clear and indisputable right to reassignment. See id. at 381. We therefore deny the Petition.
Friday, June 26, 2020
Yesterday the House of Representatives passed the George Floyd Justice in Policing Act of 2020 (H.R. 7120). Section 102 addresses qualified immunity, although only in the context of actions against law enforcement officers. Here’s the relevant text:
Section 1979 of the Revised Statutes of the United States (42 U.S.C. 1983) is amended by adding at the end the following:
“It shall not be a defense or immunity in any action brought under this section against a local law enforcement officer (as such term is defined in section 2 of the George Floyd Justice in Policing Act of 2020), or in any action under any source of law against a Federal investigative or law enforcement officer (as such term is defined in section 2680(h) of title 28, United States Code), that—
“(1) the defendant was acting in good faith, or that the defendant believed, reasonably or otherwise, that his or her conduct was lawful at the time when the conduct was committed; or
“(2) the rights, privileges, or immunities secured by the Constitution and laws were not clearly established at the time of their deprivation by the defendant, or that at such time, the state of the law was otherwise such that the defendant could not reasonably have been expected to know whether his or her conduct was lawful.”
Tuesday, June 9, 2020
Last week, Representative Justin Amash and 17 original cosponsors introduced H.R. 7085, the Ending Qualified Immunity Act.
The Bill finds (among other things) that qualified immunity “has severely limited the ability of many plaintiffs to recover damages under section 1983 when their rights have been violated by State and local officials” and that “[a]s a result, the intent of Congress in passing the law has been frustrated, and Americans’ rights secured by the Constitution have not been appropriately protected.”
The operative text would add the following language to the end of 42 U.S.C. § 1983:
‘‘It shall not be a defense or immunity to any action brought under this section that the defendant was acting in good faith, or that the defendant believed, reasonably or otherwise, that his or her conduct was lawful at the time when it was committed. Nor shall it be a defense or immunity that the rights, privileges, or immunities secured by the Constitution or laws were not clearly established at the time of their deprivation by the defendant, or that the state of the law was otherwise such that the defendant could not reasonably have been expected to know whether his or her conduct was lawful.’’
You can follow the bill’s progress here.
Friday, April 17, 2020
Might be just a coincidence, but there was a similar theme in two Law360 stories this week...
Put On A Shirt For Video Hearings, Judge Tells Attys. Here’s the letter from Broward County Judge Dennis Bailey.
Atty Who Depantsed At Court Security Check Fights DQ Bid. Here are some of the documents:
Friday, February 14, 2020
Judge Jack Weinstein of the U.S. District Court for the Eastern District of New York, an LBJ appointee, retired this week at the age of 98. (His decisions come up a lot in Complex Litigation class.)
Friday, December 20, 2019
Monday, November 11, 2019
D.C. federal court dismisses New York defendants from Trump's tax return lawsuit for lack of personal jurisdiction
This past summer, Donald Trump filed a lawsuit against New York Attorney General Letitia James, Commissioner of the New York State Department of Taxation and Finance Michael Schmidt, and the House Ways and Means Committee seeking to block the disclosure of his New York state tax returns. The suit was filed in U.S. District Court for the District of Columbia.
Today Judge Carl Nichols dismissed the two New York defendants for lack of personal jurisdiction. His ruling is based on D.C.’s long-arm statute, although he alludes to potential constitutional concerns in a footnote. Here is the opinion:
Friday, November 8, 2019
Today Judge Klausner of the U.S. District Court for the Central District of California certified both a damages class and an injunctive relief class in Morgan v. United States Soccer Federation. The plaintiffs are members of the U.S. Women’s National Soccer Team, alleging violations of the Equal Pay Act and Title VII based on discrepancies in pay between them and the Men’s National Team.
Here is today’s order:
Wednesday, October 23, 2019
Today the U.S. Court of Appeals for the Second Circuit heard oral argument in Trump v. Vance, which involves Donald Trump’s attempt to enjoin a New York subpoena seeking documents—including Trump’s financial and tax records—from his accounting firm.
Here’s a link to the audio of today’s argument.
And here is the district court’s opinion below (reported at 395 F. Supp. 3d 283).
Thursday, September 26, 2019
Yesterday the U.S. Court of Appeals for the D.C. Circuit heard oral argument in Molock v. Whole Foods Market, Inc., which addresses the extent to which the Supreme Court’s 2017 Bristol-Myers decision on personal jurisdiction applies to class actions.
Here is the oral argument recording.
Here’s coverage from Perry Cooper, Whole Foods Appeals Court Tries to Avoid Jurisdictional Issue (Bloomberg).
And here’s what can happen in the Whole Foods parking lot.
Tuesday, August 13, 2019
This May, a lawsuit was filed challenging Alabama’s 2019 abortion law (House Bill 314). The case, Robinson v. Marshall, is pending before Judge Myron Thompson in the U.S. District Court for the Middle District of Alabama. (No. 2:19-cv-00365).
Last week, the Alabama Attorney General filed a response to the plaintiffs’ motion for a preliminary injunction. He concedes that the law must be—at least partially—enjoined. The Attorney General recognizes that the Alabama statute is unconstitutional under the Supreme Court’s case law, but he states that he will ask the Supreme Court to overrule those decisions. He writes: "For now, though, this Court is bound by Roe and Casey, and these cases require that Plaintiffs’ motion for a preliminary injunction be granted with respect to the Act’s ban on pre-viability abortions."
This would seem to pave the way for the entry of a preliminary injunction against the Alabama statute, from which the Alabama Attorney General would appeal to the Eleventh Circuit and ultimately the Supreme Court.
Here is the Alabama Attorney General’s filing:
Here is the plaintiffs’ complaint and memorandum in support of their motion for a preliminary injunction:
- Download Robinson - Complaint
- Download Robinson - Memo in Support of Motion for Preliminary Injunction
Friday, August 2, 2019
This week Arizona filed a bill of complaint (and a motion for leave to file that bill of complaint) in the Supreme Court.
The bill begins:
1. Defendants Richard Sackler, Theresa Sackler, Kathe Sackler, Jonathan Sackler, Mortimer D.A. Sackler, Beverly Sackler, David Sackler, and Ilene Sackler Lefcourt (“the Sacklers”) for decades owned and controlled The Purdue Frederick Company, Inc., Purdue Pharma Inc. and Purdue Pharma, L.P. (collectively, “Purdue”). The Sacklers and Purdue have made billions of dollars off the promotion and sale of opioids, fueling a crisis with devastating effects in Arizona and the nation. The Sacklers and Purdue reaped profits through misleading marketing tactics that were barred by a 2007 consent judgment that Purdue entered into with the State of Arizona. The State is seeking civil penalties and other relief for violation of that consent judgment in a pending case before Pima County Superior Court. See Arizona ex rel. Brnovich v. Purdue Pharma, L.P., et al., No. C20072471 (Ariz. Super. Ct.).
2. The State brings this action because it has evidence that the Sacklers, Purdue, and the other Defendants were parties in recent years to massive cash transfers—totaling billions of dollars— at a time when Purdue faced enormous exposure for its role in fueling the opioids crisis. These transfers threaten the ability of Purdue to satisfy any relief the State may obtain in its pending proceeding against Purdue. The State therefore brings this action to hold the Defendants accountable for their attempts to loot Purdue, and to ensure that the people of Arizona can obtain adequate relief for the devastation that the Sacklers and Purdue have wrought in this state.
The bill asserts jurisdiction under 28 U.S.C. § 1251(b)(3), which provides: “The Supreme Court shall have original but not exclusive jurisdiction of . . . [a]ll actions or proceedings by a State against the citizens of another State or against aliens.”
Here’s a NYT story from Adam Liptak: Arizona Files Novel Lawsuit in Supreme Court Over Opioid Crisis.
Tuesday, March 19, 2019
The Federal Bar Association has announced its 4th Annual National Community Outreach Project for April 2019. This year's project focuses on educating youth about the judicial system by letting them see first hand how courthouses operate. Here's the FBA press release:
Arlington, VA – The Federal Bar Association announces its fourth annual National Community Outreach Project, reaching out to youth and other communities coast to coast to open the federal judicial system for the public to see. In these times when communities, especially youth, have lost confidence in our judicial system, the FBA’s NCOP seeks to instill confidence in the judicial system in middle and high-school students and other communities by bringing them into the courthouses, meeting with lawyers, observing court proceedings, and talking directly to federal judges.
In recent years, Federal Bar Association chapters across the United States participated, spreading the word throughout the country and involving the federal judiciary in districts throughout the nation. This program has made a lasting effect on the communities they serve.
The Federal Bar Association’s mission statement includes a commitment to the communities in which their members serve. With events like tours of the federal courts, viewing federal court proceedings, tours of federal agencies and providing citizens with free legal advice, the Federal Bar Association has reached out in a variety of creative ways to fulfill this commitment.
Sponsored by the Foundation of the Federal Bar Association, the NCOP is back this year, even bigger than last year, undoubtedly with an even bigger impact. Through the NCOP, the FBA is making every April the “National Community Outreach” month. The National Community Outreach Project of 2019 will kick off in April. For more information, please visit: www.fedbar.org/NCOP
More than 25 chapters and sections in multiple districts across the country have agreed to participate in the fourth annual National Community Outreach Project.
Main Website: www.fedbar.org
NCOP Link: www.fedbar.org/NCOP
Monday, June 4, 2018
From Alison Frankel, Fitbit lawyers reveal ‘ugly truth’ about arbitration, judge threatens contempt (Reuters):
At a hearing Thursday in San Francisco federal court, a lawyer for the fitness tracking company Fitbit told U.S. District Judge James Donato that no rational customer would arbitrate a $162 claim against the company. The filing fee for a proceeding before the American Arbitration Association, said William Stern of Morrison & Foerster, is $750 - and that’s just to get the case started. It simply doesn’t make sense, Stern said no fewer than six times at Thursday’s hearing, to arbitrate a $162 claim.
* * *
Thursday’s hearing was supposed to be about the opt-outs’ class action, but Judge Donato quickly homed in on the arbitration controversy. He said Fitbit’s handling of the McLellan arbitration “appears to be an absolutely unacceptable level of gamesmanship” and ordered briefing from both sides on whether Fitbit had engaged in “a form of civil contempt.”
The judge said he had sent the case to arbitration because Fitbit said that’s where it belonged. It is “profoundly troubling,” Judge Donato said, that Fitbit unilaterally decided McLellan’s claim could not be arbitrated because, as he described the company’s position, “We think it’s a cheap case, and we offered her plenty money to get rid of it, and she said no, and she’s crazy as a result of that, so our hands are now tied.’”
(H/T: Bob Klonoff)
Thursday, April 5, 2018
Yesterday’s story in the National Law Journal begins: “All litigation funding arrangements in Wisconsin state courts will have to be disclosed in civil cases under a new measure signed into law by the state’s governor Tuesday.”
Here’s the text of the bill.
Saturday, March 17, 2018
There has been a lot of coverage of Donald Trump’s relationship with Stephanie Clifford (known by her stage name Stormy Daniels), and the $130,000 payment she received in connection with a nondisclosure agreement during the heat of the 2016 presidential campaign.
Earlier this month, Clifford filed a lawsuit against Trump and Essential Consultants, LLC, in California state court (Los Angeles County). Essential Consultants, which was a party to the nondisclosure agreement, is apparently a Delaware LLC, and Trump attorney Michael Cohen is its sole member. Clifford’s complaint seeks a declaration that the “Hush Agreement” is unenforceable.
Yesterday, Essential Consultants removed the case to federal court. The notice alleges that, for purposes of diversity jurisdiction, Clifford is a Texas citizen and Trump and Essential Consultants are New York citizens. It also alleges that “the value of the object of the litigation” exceeds $75,000. The federal case has been docketed as Clifford v. Trump, No. 2:18-cv-02217 (C.D. Cal.)
Donald Trump filed a separate document joining in Essential Consultants’ notice of removal. This appears to be his effort to comply with 28 U.S.C. § 1446(b)(2)(A), which provides: “When a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action.”
You can find more coverage of the removal to federal court here:
Tuesday, March 13, 2018
Federal Judiciary Workplace Conduct Working Group issues report to Judicial Conference of the United States
From Tony Mauro, Federal Judiciary Unveils First Reforms From Harassment Working Group:
A working group has come up with nearly 20 reforms aimed at dealing with concerns about workplace harassment throughout the federal judicial system.
James Duff, director of the Administrative Office of the U.S. Courts, told the Judicial Conference in an interim report on Tuesday, “Any harassment in the judiciary is too much.” The 26-member conference, composed of federal judges from across the country, convened at the U.S. Supreme Court for its regular spring meeting.
The final report is expected in May.
And here are more details from the U.S. Courts website:
The following either have been accomplished or are in progress:
- Provided a session on sexual harassment during the ethics training for newly appointed judges in February.
- Established an online mailbox and several other avenues and opportunities for current and former judiciary employees to comment on policies and procedures for protecting and reporting workplace misconduct.
- Added instructive in-person programs on judiciary workforce policies and procedures and workplace sexual harassment to the curricula at Federal Judicial Center programs for chief district and chief bankruptcy judges this spring and upcoming circuit judicial conferences throughout the country this spring and summer.
- Removed the model confidentiality statement from the judiciary’s internal website to revise it to eliminate any ambiguous language that could unintentionally discourage law clerks or other employees from reporting sexual harassment or other workplace misconduct.
- Improve law clerk and employee orientations with increased training on workplace conduct rights, responsibilities, and recourse that will be administered in addition to, as well as separately from, other materials given in orientations.
- Provide “one click” website access to obtain information and reporting mechanisms for both Employment Dispute Resolution (EDR) and Judicial Conduct and Disability Act (JC&D) claims for misconduct.
- Create alternative and less formalized options for seeking assistance with concerns about workplace misconduct, both at the local level and in a national, centralized office at the Administrative Office of the U.S. Courts, to enable employees to raise concerns more easily.
- Provide a simplified flowchart of the processes available under the EDR and JC&D.
- Create and encourage a process for court employee/law clerk exit interviews to determine if there are issues and suggestions to assist court units in identifying potential misconduct issues.
- Establish a process for former law clerks and employees to communicate with and obtain advice from relevant offices and committees of the judiciary.
- Continue to examine and clarify the Codes of Conduct for judges and employees.
- Improve communications with EDR and JC&D complainants during and after the claims process.
- Revise the Model EDR Plan to provide greater clarity to employees about how to navigate the EDR process.
- Establish qualifications and expand training for EDR Coordinators.
- Lengthen the time allowed to file EDR complaints.
- Integrate sexual harassment training into existing judiciary programs on discrimination and courtroom practices.
- Review the confidentiality provisions in several employee/law clerk handbooks to revise them to clarify that nothing in the provisions prevents the filing of a complaint.
- Identify specifically the data that the judiciary collects about judicial misconduct complaints to add a category for any complaints filed relating to sexual misconduct. The data shows that of the 1,303 misconduct complaints filed in fiscal year 2016, more than 1,200 were filed by dissatisfied litigants and prison inmates. No complaints were filed by law clerks or judiciary employees and no misconduct complaints related to sexual harassment.
Wednesday, October 25, 2017
Last night, during Game 1 of the World Series, the Senate passed House Joint Resolution 111, which would repeal the Consumer Financial Protection Bureau’s rule on arbitration agreements (covered earlier here). The CFPB’s rule would prohibit providers of certain consumer financial products and services from using an arbitration agreement to bar consumers from filing or participating in a class action.