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.
Friday, April 7, 2017
After changing the Senate rules yesterday to eliminate the possibility of a filibuster for Supreme Court nominees, the Senate has just confirmed Tenth Circuit Judge Neil Gorsuch to the vacant seat on the Supreme Court. His first weeks on the job feature oral arguments in several cases raising civil procedure and federal courts issues.
Monday, April 17:
- Perry v. Merit Systems Protection Board
- Town of Chester v. Laroe Estates
- California Public Employees Retirement System v. ANZ Securities
Tuesday, April 25:
Sunday, February 26, 2017
The Republicans in Congress are intent on expropriating ordinary citizens’ right to sue wrongdoers and allowing corporations and other defendants to violate the law without consequence.
Not content to protect corporations from accountability by hobbling class actions and intimidating plaintiffs' lawyers with mandatory Rule 11 sanctions, Republicans are going for the full monty: federalized so-called “tort reform” (or what I call “tort elimination”).
Without a hearing, H.R. 1215 (Download HR1215) goes to straight to markup in the House Judiciary Committee this Tuesday. The bill was sponsored by Rep. Steve King (R-IA 4th Dist.).
H.R. 1215 has the Orwellian name of “Protecting Access to Care Act of 2017” (because all Republican-sponsored bills about the civil justice system are named just the opposite of what they would actually do to ordinary citizens). The name of this bill should be “Protecting Doctors and Hospitals from Liability for Wrongdoing and Protecting Insurance Companies from Having to Pay Legitimate Claims.”
Although Republicans supposedly care about “states’ rights,” this bill would eliminate (by preempting) vast swaths of state tort law. Among the many draconian provisions of the bill:
- It would impose a uniform 3-year statute of limitations on “health care lawsuits.”* States would be free to have a shorter one, but not a longer one.
- It would impose a uniform $250,000 limit on noneconomic damages.
- The bill would not limit economic damages, but it would allow states to limit economic damages, noneconomic damages, and the total amount of damages.
- Naturally, “the jury shall not be informed about the maximum award for noneconomic damages.” Because then they might at last understand what “tort reform” means.
- The bill would eliminate joint-and-several liability. This could deprive an innocent injured person of full compensation, while shielding a wrongdoing defendant from paying for an injury he helped to cause.
- “Any party” would be allowed to introduce evidence of collateral source benefits.
- An award of future damages over $50,000 would be required, at the request of “any party,” to be paid in periodic payments.
- The bill would completely release health care providers (as defined) from any liability in a products liability action for prescribing a product approved by the FDA.
Finally, no Republican-sponsored civil justice bill would be complete without denigrating plaintiffs’ attorneys and making it even more uneconomical for plaintiffs’ attorneys to represent clients. This bill goes so far as to call the payment to attorneys of an agreed-upon fee a “conflict of interest.” The bill would give the court the power to restrict a contingent fee. And “in no event shall” the contingent fee exceed 40% of the first $50,000 recovered, 33-1/3% of the next $50,000, 25% of the next $500,000, and 15% of any amount in excess of $600,000.
So now the federal government would be dictating to the states what attorneys’ fees they could allow. Those limits would apply even in settlement, mediation, or arbitration.
Really, guys? This bill isn’t even getting a hearing? Maybe to talk about its practical elimination of citizens’ ability to sue or the fact that the bill is a gift to the insurance industry? Maybe to talk about the experience that many states, swept up in “tort reform” over the last several decades, have had with similar provisions (many of which have been held unconstitutional)? How about the fact that the bill slavishly follows the positions of the American Tort Reform Association and the shadowy American Legislative Exchange Council?
H.R. 1215 joins five other bills introduced in the past few weeks that tilt the table in favor of corporate defendants in litigation. Is there any item on the corporate defense wish list that we haven’t seen introduced in Congress yet?
It is possible, though, that this bill could have one positive effect. It may induce doctors, hospitals, and insurance companies who currently refuse to participate in federal programs to do so, based upon the limited liability the bill would ensure.
*Definition: “The term ‘health care lawsuit’ means any health care liability claim concerning the provision of goods or services for which coverage was provided in whole or in part via a Federal program, subsidy or tax benefit, or any health care liability action concerning the provision of goods or services for which coverage was provided in whole or in part via a Federal program, subsidy or tax benefit, brought in a State or Federal court or pursuant to an alternative dispute resolution system, against a health care provider regardless of the theory of liability on which the claim is based . . .” This would presumably include Medicare, Medicaid, and the Affordable Care Act.
Sunday, January 29, 2017
Yesterday several legal challenges to Trump’s Executive Orders were filed. If you want to keep track of the various filings and orders as these cases proceed, the University of Michigan’s Civil Rights Litigation Clearinghouse is collecting them here.
Saturday, January 28, 2017
Here is the complaint in Darweesh v. Trump, which was filed early this morning in U.S. District Court for the Eastern District of New York:
Some coverage of the case:
Thursday, January 26, 2017
Recent lawsuits against Donald Trump may end up raising some interesting civil procedure and federal courts issues. Here are some documents and reports relating to pending litigation:
CREW v. Trump
(This is the Emoluments Clause challenge filed Monday in the U.S. District Court for the Southern District of New York)
- Jonathan Adler (Washington Post, 1/23/2017)
- Michael Dorf (Dorf on Law, 1/24/2017)
- Chris Geidner (BuzzFeed, 1/22/2017)
- Eric Lipton & Adam Liptak (NY Times, 1/22/2017)
- Eric Segall (LA Times, 1/25/2017)
- Jim Zarroli (NPR, 1/26/2017)
Zervos v. Trump
(Defamation action against Trump in New York State Court)
- Michael Dorf (Dorf on Law, 1/19/2017)
- Rosalind Helderman (Washington Post, 1/17/2017)
- Megan Twohey (NY Times, 1/17/2017)
AES Electrical v. Trump Old Post Office LLC
(This case was filed yesterday in D.C. Superior Court by an electrical contractor that claims it wasn’t paid for $2 million worth of work on Trump’s DC hotel.)
Tuesday, September 13, 2016
Today’s announcement on the U.S. Courts website begins:
Two pilot programs – one that will allow pro se prisoners to file certain federal court documents electronically from a kiosk in a prison and a second that will provide judicial assistance to select district courts with unusually high civil caseloads – were approved today by the Judicial Conference at its biannual meeting in Washington, D.C.
Monday, August 22, 2016
Earlier this summer, Judge Robert Mariani of the U.S. District Court for the Middle District of Pennsylvania issued an opinion dismissing an Alien Tort Statute claim brought against Muhammed Fethullah Gülen, a Turkish cleric who has been a U.S. permanent resident since the 1990s. (Gülen has been in the news more recently following the attempted coup that took place in Turkey last month; Turkey is currently seeking Gülen’s extradition.)
Judge Mariani’s ruling in Ates v. Gülen contains a detailed discussion of the U.S. Supreme Court’s decision in Kiobel (an important Alien Tort Statute decision from 2013) as well as some of the post-Kiobel case law in the lower federal courts.
Friday, August 19, 2016
Today U.S. District Judge Emmet Sullivan issued an opinion in Judicial Watch v. U.S. Department of State, a FOIA case seeking employment records relating to Huma Abedin, long-time aide to Hillary Clinton. In connection with the plaintiff’s request for discovery under FRCP 56(d), the court ordered that the plaintiff may serve interrogatories on Hillary Clinton but could not depose her.
From the opinion:
The Court directs Judicial Watch to propound questions that are relevant to Secretary Clinton’s unique first-hand knowledge of the creation and operation of clintonemail.com for State Department business, as well as the State Department’s approach and practice for processing FOIA requests that potentially implicated former Secretary Clinton’s and Ms. Abedin’s emails and State’s processing of the FOIA request that is the subject of this action.
Last week the California Supreme Court issued an important decision on how to calculate the amount of attorney fees in class actions: Laffitte v. Robert Half International Inc.
Alison Frankel (Reuters) has this report.
Saturday, January 2, 2016
Last year, I complained that the Chief Justice’s Year-End Report for the federal judiciary was irrelevant to real-world concerns. This year, I cannot complain about Year-End Report's relevance; it focuses mainly on the recently-effective amendments to the Federal Rules of Civil Procedure. But I can complain, a lot, about the Report’s lack of candor.
As been his custom for these year-end reports, the Chief Justice opens with a dull, lengthy historical reference. Last year it was the Supreme Court's 1935 installation of a pneumatic tube system; this year it’s a dueling book. The Chief Justice talks about a 22-page booklet published in 1838 setting forth detailed rules on dueling. The dueling rules, he says, were supposed to “ensure that duels would be conducted fairly—including provisions for resolving disputes through apology and compromise—[and thus] would in fact save lives.” But alas, the code “had exactly the opposite effect, glorifying and institutionalizing a barbarous practice that led to wanton death.” Three decades later, “[p]ublic opinion ultimately turned against dueling as a means of settling quarrels.”
Somehow, this is supposed to relate to the recent amendments to the federal rules. The implication seems to be that civil discovery today is like dueling, and the new amendments will civilize the barbarism.
The dueling analogy isn’t clear to me. If an elaboration of dueling rules led to increased killing, then the elaboration of the federal discovery rules will lead to . . . what? More lawsuits being killed? And if “public opinion” ultimately turned against duels, does that mean public opinion should turn even further against plaintiffs who bring civil lawsuits?
Setting aside the baffling dueling rulebook analogy, the Report continues with a paean to the process by which the rules are amended. Federal procedural rules such as the recent amendments, enthuses the Chief Justice, “are developed through meticulous consideration, with input from all facets of the legal community, including judges, lawyers, law professors, and the public at large.” But the “primary work” of rules amendments, he explains, is done through the Advisory Committee and the Standing Committee.
The Chief Justice’s characterization of the rules amendment process is meant to imply that the process ensures a national consensus and an impartial solution that will affect all litigants equally. But these suggested implications are false.
Here’s the dirty underside of the rules amendment process. What the Chief Justice doesn’t mention is that he has the sole, unfettered power to appoint the members of the Advisory Committee, the Standing Committee, and the members of all the other federal rules committees. And he has exercised this power to appoint committee members who are predisposed to favor restrictions on discovery. For example, at the time these rules amendments were adopted, seven of the eight federal judges on the Standing Committee were appointed by George W. Bush. As for the Civil Rules Advisory Committee, I wrote recently, “thirteen of the fifteen members of the Advisory Committee had at least one of the following characteristics: they were appointed by a Republican president, clerked for a Republican-appointed Supreme Court justice, work or worked for a defense-oriented, large corporate law firm, and/or are affiliated with the Federalist Society or Lawyers for Civil Justice.”
Friday, September 25, 2015
Professors Benjamin Means and Joseph Seiner (University of South Carolina School of Law) have posted on SSRN their essay, "Navigating the Uber Economy," forthcoming in U.C. Davis Law Review.
In litigation against ride-sharing companies Uber and Lyft, former drivers have alleged that they were misclassified as independent contractors and denied employment benefits. The companies have countered that they do not employ drivers and merely license access to a platform that matches those who need rides with nearby available drivers. At stake are the prospects, not only for Uber and Lyft, but for a nascent, multi-billion dollar "on-demand" economy.
Unfortunately, existing laws fail to provide adequate guidance regarding the distinction between independent contractors and employees, especially when applied to the hybrid working arrangements characteristic of a modern economy. Under the Fair Labor Standards Act and analogous state laws, courts consider several factors to assess the "economic reality" of a worker's alleged employment status; yet, there is no objective basis for prioritizing those factors.
This Essay argues that the classification of workers as independent contractors or employees should be shaped by an overarching inquiry: how much flexibility does the individual have in the working relationship? Those who can choose the time, place and manner of the work they perform are more independent than those who must accommodate themselves to a business owner's schedule. Our approach is novel and would provide an objective basis for adjudicating classification disputes, especially those that arise in the context of the on-demand economy. By reducing legal uncertainty, we would ensure both that workers receive appropriate protections under existing law and that businesses are able to innovate without fear of unknown liabilities.