Monday, January 25, 2021
Today the Supreme Court decided Henry Schein, Inc. v. Archer & White Sales, Inc. (See our earlier coverage here). The case was argued in December, and the per curiam ruling dismisses the writ of certiorari as improvidently granted.
Today’s DIG (dismissed as improvidently granted) leaves in place a Fifth Circuit decision on whether arbitration contracts delegate questions of arbitrability to the arbitrator.
Monday, January 11, 2021
Today’s lengthy Supreme Court order list includes a denial of certiorari in IQVIA Inc. v. Mussat. The Seventh Circuit’s decision below (covered earlier here) had concluded 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.”
The question presented in the cert petition was “[w]hether a district court with jurisdiction coextensive with a state court in the district can exercise personal jurisdiction over absent class members’ claims as part of a putative class action when the court concededly could not exercise personal jurisdiction over the absent class members’ claims if they had been brought in individual suits.”
Wednesday, December 30, 2020
The Supreme Court of Pennsylvania has issued an interesting decision on personal jurisdiction: Hammons v. Ethicon, Inc., 240 A.3d 537 (2020). The majority opinion by Justice Baer begins:
This case presents a challenge to the exercise of specific personal jurisdiction in Pennsylvania over New Jersey corporate defendants in a case filed by an Indiana resident regarding injuries allegedly caused by a pelvic mesh medical device implanted in Indiana. While the device was assembled by the defendants out of state, the mesh component of the device was manufactured by a separate entity in Pennsylvania. After reviewing recent decisions from the United States Supreme Court revising its personal jurisdiction jurisprudence, we conclude that the imposition of personal jurisdiction in this case meets the relevant constitutional and statutory requirements.
The opinion contains a nice discussion of the scope of specific jurisdiction in the wake of the Supreme Court’s decision in Bristol-Myers Squibb v. Superior Court (BMS), which concludes:
We conclude that the Court in BMS did not reject its prior phrasings of specific personal jurisdiction, but rather incorporated the broader terminology emphasizing the connections between the controversy, litigation, or suit and the defendant’s actions in the forum state. Accordingly, absent further clarification from the High Court, we decline to restrict jurisdiction by focusing narrowly on the elements of plaintiff’s specific legal claims, which could unnecessarily restrict access to justice for plaintiffs. Instead, we look more broadly to determine whether the case as a whole establishes ties between the defendant’s actions in the forum state and the litigation.
A concurring opinion by Justice Donohue addresses “the propriety of considering evidence adduced for the first time at trial in support of the trial court’s ruling on preliminary objections that specific jurisdiction was established.”
Chief Justice Saylor dissents.
Friday, December 18, 2020
Today the Supreme Court issued a decision in Trump v. New York, a case involving the Trump administration’s policy to exclude aliens without lawful status from the 2020 census count. In a per curiam opinion, the majority finds the case to be non-justiciable on standing and ripeness grounds, vacating the district court’s judgment against Trump. It concludes:
At the end of the day, the standing and ripeness inquiries both lead to the conclusion that judicial resolution of this dispute is premature. Consistent with our determination that standing has not been shown and that the case is not ripe, we express no view on the merits of the constitutional and related statutory claims presented. We hold only that they are not suitable for adjudication at this time.
Justice Breyer authors a dissenting opinion, joined by Justices Sotomayor and Kagan. From the dissent (citations omitted):
Waiting to adjudicate plaintiffs’ claims until after the President submits his tabulation to Congress, as the Court seems to prefer, risks needless and costly delays in apportionment. Because there is a “substantial likelihood that the [plaintiffs’] requested relief . . . .will redress the alleged injury,” I would find that we can reach plaintiffs’ challenge now, and affirm the lower court’s holding.
Wednesday, December 16, 2020
Today the Supreme Court granted certiorari in TransUnion LLC v. Ramirez, which presents the question: “Whether either Article III or Rule 23 permits a damages class action where the vast majority of the class suffered no actual injury, let alone an injury anything like what the class representative suffered.”
(The cert petition presented a second question relating to punitive damages, but the grant is limited to Question 1.)
Thursday, December 10, 2020
The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the Federal Government from imposing substantial burdens on religious exercise, absent a compelling interest pursued through the least restrictive means. 107 Stat. 1488, 42 U. S. C. §2000bb et seq. It also gives a person whose religious exercise has been unlawfully burdened the right to seek “appropriate relief.” The question here is whether “appropriate relief” includes claims for money damages against Government officials in their individual capacities. We hold that it does.
First, the Court finds that government officials can be sued in their personal capacities. Justice Thomas explains: “A suit against an official in his personal capacity is a suit against a person acting under color of law. And a suit against a person acting under color of law is a suit against ‘a government,’ as defined under RFRA. §2000bb–1(c).”
Second, the Court approves of claims for monetary damages against such officials: “A damages remedy is not just ‘appropriate’ relief as viewed through the lens of suits against Government employees. It is also the only form of relief that can remedy some RFRA violations.” In a footnote, however, Justice Thomas raises the possibility of qualified immunity:
Both the Government and respondents agree that government officials are entitled to assert a qualified immunity defense when sued in their individual capacities for money damages under RFRA. Indeed, respondents emphasize that the “qualified immunity defense was created for precisely these circumstances,” Brief for Respondents 22, and is a “powerful shield” that “protects all but the plainly incompetent or those who flout clearly established law,” Tr. of Oral Arg. 42; see District of Columbia v. Wesby, 583 U. S. ___, ___–___ (2018) (slip op., at 13–15).
This case concerns a Delaware constitutional provision that requires that appointments to Delaware’s major courts reflect a partisan balance. Delaware’s Constitution states that no more than a bare majority of members of any of its five major courts may belong to any one political party. Art. IV, §3. It also requires, with respect to three of those courts, that the remaining members belong to “the other major political party.” Ibid.
The plaintiff, a Delaware lawyer, brought this lawsuit in federal court. He claimed that Delaware’s party-membership requirements for its judiciary violate the Federal Constitution. We agreed to consider the constitutional question, but only if the plaintiff has standing to raise that question. We now hold that he does not.
The Court’s analysis looks closely at the summary judgment record, including Adams’ answers to interrogatories and deposition testimony, noting that “[t]his is a highly fact-specific case.” It ultimately concludes that “the record evidence fails to show that, at the time he commenced the lawsuit, Adams was ‘able and ready’ to apply for a judgeship in the reasonably foreseeable future.” He therefore “failed to show that ‘personal,’ ‘concrete,’ and ‘imminent’ injury upon which our standing precedents insist.”
Justice Sotomayor authors a concurring opinion. Although she agrees that Adams lacked standing, she observes that the constitutional challenge to Delaware’s system “will likely be raised again.” Accordingly, she briefly identifies “two important considerations” relevant to such a challenge, including the difficulty in determining whether Delaware’s major party and bare majority requirements are severable from one another. On severability, Justice Sotomayor suggests that federal courts may be “well advised to consider certifying such a question to the State’s highest court.”
Friday, October 30, 2020
Yesterday the First Circuit issued its decision in Rhode Island v. Shell Oil Products Co., which addresses the scope of appellate jurisdiction over district court remand orders—the same issue for which the Supreme Court granted certiorari (in a Fourth Circuit case) earlier this month.
Judge Thompson’s opinion begins:
Rhode Island is salty about losing its already limited square footage to rising sea levels caused by climate change. Facing property damage from extreme weather events and otherwise losing money to the effects of climate change, Rhode Island sued a slew of oil and gas companies for the damage caused by fossil fuels while those companies misled the public about their products' true risks.
Because those claims were state law claims, Rhode Island filed suit in state court. The oil companies, seeing many grounds for federal jurisdiction, removed the case to federal district court. Rhode Island opposed removal and asked that the district court kindly return the lawsuit to state court. The district court obliged and allowed Rhode Island's motion for remand.
The oil companies appealed the district court's order to us and a heated debate ensued over the scope of our review. After careful consideration, we conclude that 28 U.S.C. § 1447(d) permits our review of remand orders only to the extent that the defendant's grounds for removal are federal-officer jurisdiction, pursuant to 28 U.S.C. § 1442 or civil rights jurisdiction, pursuant to 28 U.S.C. § 1443. The oil companies make no argument that this is a civil rights case and we conclude the allegations in Rhode Island's state court complaint do not give rise to federal-officer jurisdiction. Having jurisdiction to review no more than that question, we affirm the district court's remand order.
Monday, October 26, 2020
The Supreme Court’s first batch of oral arguments this Term included Google LLC v. Oracle America, Inc., a high-profile and high-stakes ($9 billion) lawsuit about Google’s use of Java programming code to develop its Android operating system. Google prevailed after a jury trial, but the Federal Circuit reversed. Google’s Supreme Court cert petition initially presented two questions: (1) whether copyright protection extends to a software interface; and (2) whether, as the jury found at trial, Google’s use of Oracle’s software interface constituted fair use for purposes of copyright law. That second question, however, prompted the Court to ask its own question: what was “the appropriate standard of review” for the jury’s fair use verdict?
I’ve written a piece that examines this standard of review issue, Appellate Courts and Civil Juries, 2021 Wisconsin L. Rev. 1 (forthcoming). There’s a lot more detail in the full article, but I wanted to highlight a few points in the wake of the recent oral argument—during which there were several questions about the standard of review.
Monday, October 19, 2020
Today’s Supreme Court order list contained some high-profile grants of certiorari that include some interesting federal courts issues.
Wolf v. Innovation Law Lab involves a challenge to the Trump administration’s “Remain in Mexico” policy, which had been enjoined by lower federal courts. One of the four questions presented is “[w]hether the district court’s universal preliminary injunction is impermissibly overbroad.”
Trump v. Sierra Club involves the Trump administration’s diversion of Department of Defense (DoD) funds to build portions of a wall along the U.S.-Mexico border. The first question presented is whether the plaintiffs “have a cognizable cause of action to obtain review of the Acting Secretary’s compliance with Section 8005’s proviso in transferring funds internally between DoD appropriations accounts.”
Here's where you can check out the cert-stage briefing and follow the merits briefs as they come in:
Supreme Court website:
Friday, October 16, 2020
Today the Supreme Court set oral argument in Trump v. New York for Monday, November 30. Here are the questions presented, which include a question on the lower court's authority to grant relief under Article III:
Congress has provided that, for purposes of apportioning seats in the House of Representatives, the President shall prepare “a statement showing the whole number of persons in each State * * * as ascertained under the * * * decennial census of the population.” 2 U.S.C. 2a(a). It has further provided that the Secretary of Commerce shall take the decennial census “in such form and content as he may determine,” 13 U.S.C. 141(a), and shall tabulate the results in a report to the President, 13 U.S.C. 141(b). The President has issued a Memorandum instructing the Secretary to include within that report information enabling the President to implement a policy decision to exclude illegal aliens from the base population number for apportionment “to the maximum extent feasible and consistent with the discretion delegated to the executive branch.” 85 Fed. Reg. 44,679, 44,680 (July 23, 2020). At the behest of plaintiffs urging that the exclusion of illegal aliens would unconstitutionally alter the apportionment and chill some persons from participating in the census, a three-judge district court declared the Memorandum unlawful and enjoined the Secretary from including the information in his report. The questions presented are:
(1) Whether the relief entered satisfies the requirements of Article III of the Constitution.
(2) Whether the Memorandum is a permissible exercise of the President’s discretion under the provisions of law governing congressional apportionment.
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, October 6, 2020
The Supreme Court hears oral argument tomorrow in the much-anticipated Ford cases—the latest in the Court’s recent run of decisions on personal jurisdiction. Oral argument in the two consolidated cases was originally scheduled for last spring, but it was postponed until this week due to the COVID-19 pandemic.
The two cases involve a similar fact pattern. The plaintiffs were injured in accidents involving Ford vehicles, and they sued Ford in the state where they lived and where the accidents occurred. Ford is actively involved in marketing its automobiles in those states (as it is throughout the United States), including the specific kinds of automobiles involved in these accidents. Ford, however, has argued against specific jurisdiction because the vehicles involved in these accidents were initially sold to customers in other states. The vehicle involved in the Minnesota accident was initially sold to a customer in North Dakota. The vehicle involved in the Montana accident was initially sold to a customer in Washington State. Accordingly, Ford contends that its contacts with Minnesota and Montana were not the “cause” of the accidents that occurred there. The plaintiffs, on the other hand, argue that “[s]pecific jurisdiction over a defendant is permissible where a plaintiff has been injured in the forum by a product that the defendant has systematically marketed, sold, and serviced in the forum.”
Numerous law professors have filed amicus briefs supporting personal jurisdiction in Ford (here, here, here, here, and here) and weighed in with blog posts (e.g., here and here). There is also a remarkable amicus brief filed by 39 states and the District of Columbia arguing in support of jurisdiction—a brief joined by many states whose administrations would hardly be considered friends of the plaintiffs’ bar.
Although the Supreme Court has decided lots of cases about when a defendant’s contacts are constitutionally sufficient for specific jurisdiction, it has yet to provide meaningful guidance on what sort of forum-controversy “affiliation” is required to justify specific jurisdiction. I’ve argued elsewhere that the appropriate affiliation touchstone is rationality—that is, whether there is a rational basis for the forum state to adjudicate the availability of judicial remedies in that particular case. But the Supreme Court need not go that far to uphold specific jurisdiction in Ford. The test proposed by the plaintiffs is a sensible one that vindicates the well-established notion that a defendant is subject to personal jurisdiction when it seeks to serve the market for its product in the forum state and its product causes injury there.
There’s a lot more to be said, but with this quick post I want to highlight an additional concern about Ford’s causation argument—one that could sweep beyond the precise facts of these cases and into more traditional “stream of commerce” cases where the product is purchased initially by a customer in the forum state. The plurality and concurring opinions in the Supreme Court’s McIntyre decision indicate that a single product entering the forum state is not a sufficient contact for establishing personal jurisdiction—even if that single product is the one that gives rise to the litigation. Yet Ford’s proposed causal requirement suggests that the only relevant contact is the single vehicle or piece of machinery that was involved in the accident. If that’s right, then every case might turn into McIntyre. Regardless of whether the flow of the defendant’s products into the forum state is a stream, an eddy, or a rushing river, the only contact that would count is the single drop that caused the plaintiff’s injuries. And a single drop is never enough. That would be a radical, unfortunate departure from established doctrine—and it’s another reason why the Court should uphold personal jurisdiction in the Ford cases.
Monday, October 5, 2020
The Supreme Court begins oral argument by telephone conference this morning. If you want to listen in, here’s some information from the Supreme Court’s press release:
The Court will hear oral arguments by telephone conference on October 5, 6, 7, 13, and 14. In keeping with public health guidance in response to COVID-19, the Justices and counsel will all participate remotely. The oral arguments are scheduled to begin at 10 a.m. On days when more than one case will be heard, there will be a three minute pause before the second case begins.
The Court will provide a live audio feed of the arguments to ABC News (the network pool chair), the Associated Press, and C-SPAN, and they will in turn provide a simultaneous feed for the oral arguments to livestream on various media platforms for public access. * * *
The oral argument audio and a transcript of the oral arguments will be posted on the Court's website following oral argument each day.
Today’s arguments include Carney v. Adams, which presents some interesting standing and severability issues.
Friday, October 2, 2020
The question presented involves the permissible scope of an appellate court’s review of a district court’s order remanding a case to state court. From the cert. petition:
Section 1447(d) of Title 28 of the United States Code generally precludes appellate review of an order remanding a removed case to state court. But Section 1447(d) expressly provides that an “order remanding a case * * * removed pursuant to” the federal-officer removal statute, 28 U.S.C. 1442, or the civil-rights removal statute, 28 U.S.C. 1443, “shall be reviewable by appeal or otherwise.” Some courts of appeals have interpreted Section 1447(d) to permit appellate review of any issue encompassed in a district court’s remand order where the removing defendant premised removal in part on the federal-officer or civil-rights removal statutes; other courts of appeals, including the Fourth Circuit in this case, have held that appellate review is limited to the federal-officer or civil-rights ground for removal. The question presented is as follows:
Whether 28 U.S.C. 1447(d) permits a court of appeals to review any issue encompassed in a district court’s order remanding a removed case to state court where the removing defendant premised removal in part on the federal-officer removal statute, 28 U.S.C. 1442, or the civil-rights removal statute, 28 U.S.C. 1443.
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, September 9, 2020
Last week the Eleventh Circuit issued a decision in Cantu v. City of Dothan, reversing the district court’s grant of qualified immunity. Judge Ed Carnes’ opinion for the panel begins with a quote from Rick Bragg’s The Prince of Frog Town:
When Rick Bragg wrote about “a gothic story” in which “you can see the bad luck tumbling, as if the devil himself had shaved the dice,” he was talking about his father’s tragic life, but those words could also describe Robert Earl Lawrence’s effort to help a stray dog he found in a Walmart parking lot.
The introductory paragraphs describe the events that would lead to Lawrence’s death:
When the backup officer arrived at the shelter parking lot, still more words were exchanged. That officer told Lawrence that if he didn’t stop talking he was going to jail. Lawrence didn’t stop talking and the backup officer, with the assistance of the other two officers on the scene, attempted to arrest and handcuff him. Lawrence would not submit and resisted –– not aggressively, but vigorously. He refused to put his hands behind his back as ordered, he struggled, and twice he temporarily freed himself from an officer’s grip and ran around the car trying to get away, but officers caught up with him. In the last moments of the encounter, while trying to get free from three officers again, he put his hand either on an officer’s taser, or on the officer’s wrist or hand that was holding the taser. In response, an officer pulled her service weapon and without warning, and to the surprise of the other two officers, shot Lawrence while he was being held. He was taken to a hospital where he died from the gunshot wound.
The district court granted summary judgment on qualified immunity grounds to the officer who shot Lawrence. But the panel unanimously reverses and remands for further proceedings:
Taking the facts in the light most favorable to [the plaintiff], a reasonable jury could find that Woodruff violated Lawrence’s clearly established constitutional rights by shooting him. As a result, Woodruff is not entitled to summary judgment based on qualified immunity or based on state agent immunity.
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.
Saturday, August 22, 2020
This week the Ninth Circuit issued a 2-1 decision in Rittmann v. Amazon.com, addressing an arbitration issue similar to the one recently decided by the First Circuit last month (covered earlier here). The Ninth Circuit case involves drivers who participate in the “AmFlex program,” under which “Amazon contracts with individuals to make ‘last mile’ deliveries of products from Amazon warehouses to the products’ destinations using the AmFlex smart phone application.” Like the First Circuit, the Ninth Circuit concludes that Amazon’s arbitration provision is not covered by the Federal Arbitration Act (FAA) and is not enforceable.
Judge Milan Smith authors the majority opinion (joined by Judge Randy Smith, no relation), and Judge Bress dissents. The majority concludes that the AmFlex last-mile delivery providers are exempt from the FAA under 9 U.S.C. § 1 because they are “transportation workers ‘engaged in foreign or interstate commerce’” even though they do not cross state lines: “The plain meaning of the relevant statutory text, case law interpreting the exemption’s scope and application, and the construction of similar statutory language all support the conclusion that transportation workers need not cross state lines to be considered ‘engaged in foreign or interstate commerce’ pursuant to § 1.”
Monday, August 17, 2020
Earlier this month, the Federal Circuit issued its decision in National Veterans Legal Services Program v. United States. Judge Hughes’ opinion begins in the style of Goldilocks:
These interlocutory cross-appeals challenge the district court’s interpretation of a statutory note to 28 U.S.C. § 1913 permitting the federal judiciary to charge “reasonable fees” for “access to information available through automatic data processing equipment.” Plaintiffs contend that under this provision unlawfully excessive fees have been charged for accessing federal court records through the Public Access to Court Electronic Records (PACER) system and that the district court identifies too little unlawful excess. The government argues that the district court identifies too much (and also that the district court lacked jurisdiction). We conclude that the district court got it just right. We therefore affirm and remand for further proceedings.
Here’s coverage from Debra Cassens Weiss (ABA Journal).
(H/T Roger Baron)