Thursday, December 16, 2021
The Supreme Court granted certiorari yesterday in two interesting cases.
Torres v. Texas Department of Public Safety involves the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). It presents the question “whether Congress has the power to authorize suits against nonconsenting states pursuant to its War Powers.”
Viking River Cruises, Inc. v. Moriana involves the effect of the Federal Arbitration Act on the California Private Attorneys General Act (“PAGA”). It presents the question: “Whether the Federal Arbitration Act requires enforcement of a bilateral arbitration agreement providing that an employee cannot raise representative claims, including under PAGA.”
Friday, December 10, 2021
Southwest Airlines Co. v. Saxon presents the question: “Whether workers who load or unload goods from vehicles that travel in interstate commerce, but do not physically transport such goods themselves, are interstate ‘transportation workers’ exempt from the Federal Arbitration Act.” You can find the cert-stage briefing in Southwest—and follow the merits briefs as they come in—at SCOTUSblog and at the Supreme Court website.
The Court also granted certiorari in two cases—which it proceeded to consolidate—that raise an issue regarding the relationship between 28 U.S.C. § 1782(a) and arbitration. (The Court had already granted certiorari on this issue in an earlier case, but that case was taken off the calendar back in September). The two new cases are:
ZF Automotive US, Inc. v. Luxshare, Ltd., which presents the question: “Whether 28 U.S.C. § 1782(a), which permits litigants to invoke the authority of United States courts to render assistance in gathering evidence for use in ‘a foreign or international tribunal,’ encompasses private commercial arbitral tribunals, as the U.S. Courts of Appeals for the Fourth and Sixth Circuits have held, or excludes such tribunals, as the U.S. Courts of Appeals for the Second, Fifth, and Seventh Circuits have held.”
AlixPartners, LLC v. Fund for Protection of Investor Rights in Foreign States, which presents the question: “Whether an ad hoc arbitration to resolve a commercial dispute between two parties is a ‘foreign or international tribunal’ under 28 U.S.C. § 1782(a) when the arbitral panel does not exercise any governmental or quasi-governmental authority.”
SCOTUS Decisions in Texas Abortion Cases: United States v. Texas and Whole Woman's Health v. Jackson
Today the Supreme Court issued its decisions in two cases involving Texas’s abortion law, S.B. 8 (covered earlier here).
In United States v. Texas, the Court issued a one-page per curiam order dismissing the writ of certiorari as improvidently granted and denying the application to vacate the stay. Justice Sotomayor dissents.
GORSUCH, J., announced the judgment of the Court, and delivered the opinion of the Court except as to Part II–C. ALITO, KAVANAUGH, and BARRETT, JJ., joined that opinion in full, and THOMAS, J., joined except for Part II–C. THOMAS, J., filed an opinion concurring in part and dissenting in part. ROBERTS, C. J., filed an opinion concurring in the judgment in part and dissenting in part, in which BREYER, SOTOMAYOR, and KAGAN, JJ., joined. SOTOMAYOR, J., filed an opinion concurring in the judgment in part and dissenting in part, in which BREYER and KAGAN, JJ., joined.
Part IV of Justice Gorsuch’s opinion provides this summary:
The petitioners’ theories for relief face serious challenges but also present some opportunities. To summarize: (1) The Court unanimously rejects the petitioners’ theory for relief against state-court judges and agrees Judge Jackson should be dismissed from this suit. (2) A majority reaches the same conclusion with respect to the petitioners’ parallel theory for relief against state-court clerks. (3) With respect to the back-up theory of relief the petitioners present against Attorney General Paxton, a majority concludes that he must be dismissed. (4) At the same time, eight Justices hold this case may proceed past the motion to dismiss stage against Mr. Carlton, Ms. Thomas, Ms. Benz, and Ms. Young, defendants with specific disciplinary authority over medical licensees, including the petitioners. (5) Every Member of the Court accepts that the only named private-individual defendant, Mr. Dickson, should be dismissed.
Friday, November 26, 2021
This week the Supreme Court granted certiorari in Berger v. North Carolina State Conference of the NAACP, which presents the following questions:
- Whether a state agent authorized by state law to defend the State’s interest in litigation must overcome a presumption of adequate representation to intervene as of right in a case in which a state official is a defendant.
- Whether a district court’s determination of adequate representation in ruling on a motion to intervene as of right is reviewed de novo or for abuse of discretion.
- Whether Petitioners are entitled to intervene as of right in this litigation.
Monday, November 15, 2021
Waiver is the intentional relinquishment of a known right and, in the context of contracts, occurs when one party to a contract either explicitly repudiates its rights under the contract or acts in a manner inconsistent with an intention of exercising them. In the opinion below, the Eighth Circuit joined eight other federal courts of appeals and most state supreme courts in grafting an additional requirement onto the waiver analysis when the contract at issue happens to involve arbitration-requiring the party asserting waiver to show that the waiving party's inconsistent acts caused prejudice. Three other federal courts of appeal, and the supreme courts of at least four states, do not include prejudice as an essential element of proving waiver of the right to arbitrate.
The question presented is: Does the arbitration-specific requirement that the proponent of a contractual waiver defense prove prejudice violate this Court's instruction that lower courts must "place arbitration agreements on an equal footing with other contracts?" AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011).
Friday, November 5, 2021
- Whether a cause of action exists under Bivens for First Amendment retaliation claims.
- Whether a cause of action exists under Bivens for claims against federal officers engaged in immigration-related functions for allegedly violating a plaintiff’s Fourth Amendment rights.
(The Court did not grant cert on the third question presented, which asked the Court to “reconsider Bivens”).
Friday, October 29, 2021
The grant is limited to Question 1 of the petition, which involves Arizona’s and other states’ attempt to intervene in litigation challenging the regulations: “Whether States with interests should be permitted to intervene to defend a rule when the United States ceases to defend.”
Friday, October 22, 2021
One case, Whole Woman’s Health v. Jackson, presents the question “whether a State can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions.”
In United States v. Texas, the grant is limited to the following question: “May the United States bring suit in federal court and obtain injunctive or declaratory relief against the State, state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced?”
The Court has set an exceptionally expedited schedule, with oral argument occurring on Monday, November 1. However, the Court has left the statute in effect while it considers the case.
Wednesday, October 6, 2021
IT IS ORDERED that the State of Texas, including its officers, officials, agents, employees, and any other persons or entities acting on its behalf, are preliminarily enjoined from enforcing Texas Health and Safety Code §§ 171.201–.212, including accepting or docketing, maintaining, hearing, resolving, awarding damages in, enforcing judgments in, enforcing any administrative penalties in, and administering any lawsuit brought pursuant to the Texas Health and Safety Code §§ 171.201–.212. For clarity, this Court preliminarily enjoins state court judges and state court clerks who have the power to enforce or administer Texas Health and Safety Code §§ 171.201–.212.
IT IS ORDERED that the State of Texas must publish this preliminary injunction on all of its public-facing court websites with a visible, easy-to-understand instruction to the public that S.B. 8 lawsuits will not be accepted by Texas courts. IT IS FURTHER ORDERED that the State of Texas shall inform all state court judges and state court clerks of this preliminary injunction and distribute this preliminary injunction to all state court judges and state court clerks.
Friday, October 1, 2021
Yesterday the Supreme Court granted certiorari in several cases—two of which may be of particular interest…
Boechler, P.C. v. Commissioner of Internal Revenue presents the following question:
Section 6330(d)(1) of the Internal Revenue Code establishes a 30-day time limit to file a petition for review in the Tax Court of a notice of determination from the Commissioner of Internal Revenue. 26 U.S.C. § 6330(d)(1). The question presented is: Whether the time limit in Section 6330(d)(1) is a jurisdictional requirement or a claim-processing rule subject to equitable tolling.
Cassirer v. Thyssen-Bornemisza Collection Foundation presents the following question:
The Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602–1611 (“FSIA”), provides that where a foreign nation is not immune from jurisdiction in the courts of the United States or of any State, it “shall be liable in the same manner and to the same extent as a private individual under like circumstances.” Id. § 1606. In four circuits, the courts of appeals have held that this statutory requirement of parity with private litigation means that a federal court hearing an FSIA case must apply the choice-of-law rules of the State in which it is sitting. But the Ninth Circuit has held—repeatedly and without meaningful analysis, including in the decision below—that choice of law in FSIA cases is determined by application of federal common law.
The choice of law issue is critical in this case, in which the family of a Holocaust survivor seeks the return of a painting stolen by the Nazis. Under California law, a holder of stolen property (such as the Spanish state museum here) can never acquire good title, while under Spanish law, an adverse possession rule protects the museum’s title.
The question presented is: Whether a federal court hearing state law claims brought under the FSIA must apply the forum state’s choice-of-law rules to determine what substantive law governs the claims at issue, or whether it may apply federal common law.
Wednesday, September 8, 2021
The Supreme Court has removed Servotronics, Inc. v. Rolls-Royce PLC, from its oral argument calendar. As covered earlier here, the case would have addressed “[w]hether the discretion granted to district courts in 28 U.S.C. §1782(a) to render assistance in gathering evidence for use in ‘a foreign or international tribunal’ encompasses private commercial arbitral tribunals.”
Thursday, September 2, 2021
Late last night, the Supreme Court issued its order in Whole Women’s Health v. Jackson, denying by a 5-4 vote the application for injunctive relief or, in the alternative, to vacate the Fifth Circuit’s stay of the district court proceedings.
The ruling is supported by one long, unsigned paragraph, followed by four dissenting opinions: one by Chief Justice Roberts (joined by Justices Breyer and Kagan); one by Justice Breyer (joined by Justices Sotomayor and Kagan); one by Justice Sotomayor (joined by Justices Breyer and Kagan); and one by Justice Kagan (joined by Justices Breyer and Sotomayor).
Wednesday, September 1, 2021
Today Judge Robert Drain of the U.S. Bankruptcy Court for the Southern District of New York approved a plan that gives individual members of the Sackler Family immunity from civil lawsuits relating to the opioid epidemic. Here’s coverage from NPR, New York Times, and Washington Post.
Thursday, August 26, 2021
Yesterday U.S. District Judge Linda Parker of the Eastern District of Michigan issued a 110-page opinion in King v. Whitmer, imposing sanctions against the plaintiffs and their attorneys in a case brought by supporters of Donald Trump in the wake of the 2020 election. Here is the full opinion:
And here are some excerpts from Judge Parker’s introduction:
This lawsuit represents a historic and profound abuse of the judicial process. It is one thing to take on the charge of vindicating rights associated with an allegedly fraudulent election. It is another to take on the charge of deceiving a federal court and the American people into believing that rights were infringed, without regard to whether any laws or rights were in fact violated. This is what happened here. ***
The attorneys who filed the instant lawsuit abused the well-established rules applicable to the litigation process by proffering claims not backed by law; proffering claims not backed by evidence (but instead, speculation, conjecture, and unwarranted suspicion); proffering factual allegations and claims without engaging in the required prefiling inquiry; and dragging out these proceedings even after they acknowledged that it was too late to attain the relief sought.***
Indeed, attorneys take an oath to uphold and honor our legal system. The sanctity of both the courtroom and the litigation process are preserved only when attorneys adhere to this oath and follow the rules, and only when courts impose sanctions when attorneys do not. And despite the haze of confusion, commotion, and chaos counsel intentionally attempted to create by filing this lawsuit, one thing is perfectly clear: Plaintiffs’ attorneys have scorned their oath, flouted the rules, and attempted to undermine the integrity of the judiciary along the way.3 As such, the Court is duty-bound to grant the motions for sanctions filed by Defendants and Intervenor-Defendants and is imposing sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure, 28 U.S.C. § 1927, and its own inherent authority.
Wednesday, August 4, 2021
Yesterday, the full Ninth Circuit voted to vacate the April panel decision in Olean Wholesale Grocery v. Bumble Bee Foods and to hear the case en banc.
One of the important issues in the case is the extent to which a court must assess the standing of potential class members in deciding whether to certify a class action. The majority opinion, authored by Judge Bumatay, had held that “the mere presence of some noninjured class members does not defeat predominance, but we hold that the number of uninjured class members must be de minimis.” Judge Hurwitz dissented from this part of the opinion, arguing instead that “[t]he critical question is not what percentage of class members is injured, but rather whether the district court can economically ‘winnow out’ uninjured plaintiffs to ensure they cannot recover for injuries they did not suffer.”
In June, the Supreme Court flagged this issue (without resolving it) in footnote 4 of Justice Kavanaugh’s majority opinion in TransUnion. “We do not here address the distinct question whether every class member must demonstrate standing before a court certifies a class.”
Monday, July 26, 2021
Sixth Circuit Decision on Appellate Jurisdiction and Manufactured Finality (Guest Post by Andrew Pollis)
Andrew Pollis presents the following guest post on a very interesting Sixth Circuit decision:
* * *
Last week, in Rowland v. Southern Health Partners, Inc., the Sixth Circuit issued a split decision on the vexing question of manufactured finality in civil actions—that is, a party’s dismissal of unadjudicated claims as a means of securing appellate jurisdiction over the district court’s resolution of an adjudicated claim. The majority rejected the maneuver, explaining its rationale in the opening paragraph of the decision:
Can a litigant circumvent the requirements of Rule 54(b) by the expedient of voluntarily dismissing her surviving claims in order to seek immediate appellate review of an adverse judgment on her resolved claims, with the intention of reinstating the dismissed claims should she obtain a favorable outcome on appeal? Eight years ago, we answered this question no, because such a dismissal does not create a final order under 28 U.S.C. § 1291. Page Plus of Atlanta, Inc. v. Owl Wireless, LLC, 733 F.3d 658, 658 (6th Cir. 2013). The answer is still no.
The majority reiterated the court’s previous holding in Page Plus that there are only two circumstances that permit the appeal to go forward in the face of manufactured finality: (1) when “a voluntary dismissal comes at a cost,” such as when “a party assumes the risk that the statute of limitations, any applicable preclusion rules or any other defenses might bar recovery on the claim”; and (2) when “a claim voluntarily dismissed without prejudice must be re-filed in a separate action,” which removes the “risk that the same case will produce multiple appeals raising different issues.” The majority also noted that its holding was consistent with the holdings of other appellate courts to address the issue, save the Second Circuit.
Judge Karen Moore, in dissent, took issue primarily with the majority’s characterization that the plaintiff had in fact assumed no risks in agreeing to dismiss her unresolved claims:
Unlike in Page Plus, here nothing in the district court’s order states or even hints that the parties agreed that Defendants would not assert any time-based affirmative defenses against the voluntarily dismissed state-law claims. In fact, Defendants have explicitly stated that they believe that any re-filing of the voluntarily dismissed claims would be time-barred.
But perhaps the most interesting feature of Judge Moore’s dissent is her discussion of the inconsistent rulings courts have issued in these types of cases. She noted that litigants’ efforts to manufacture finality have “troubled courts of appeals for over forty years” and that “[n]early every circuit has weighed in on this question with inter- and intra-circuit splits causing confusion and frustration for both courts and litigants.” And she lamented the “disturbing lack of predictability in circuits that allow or do not allow litigants to employ Rule 41(a) dismissals without prejudice to gain appellate review; intra-circuit splits and unclear exceptions exist both in circuits with a bright-line rule disfavoring such appeals and in circuits that routinely allow them.” She admonished litigants that the “disagreement and confusion sown by the circuits” require parties to be “very wary of using Rule 41(a) as a mechanism for obtaining immediate appellate review. . . . Nothing is certain, even in a circuit that purports to allow parties to utilize Rule 41(a)(2) voluntary dismissals to secure appellate review.” Judge Moore also suggested that the Supreme Court “may eventually “intervene and decisively bar litigants from using Rule 41(a) voluntary dismissals without prejudice as an option to pursue appellate review,” given its holding in Microsoft Corp. v. Baker, 137 S. Ct. 1702 (2017), that “evinces a strong respect for rulemaking as the proper avenue for determining when a decision is final for purposes of [28 U.S.C. § 1291] or when a decision is otherwise appealable.”
Thursday, July 22, 2021
Yesterday the U.S. Court of Appeals for the Seventh Circuit issued its decision in City of Fishers, Indiana v. DIRECTV. Judge Scudder’s opinion for a unanimous panel begins:
In the lawsuit underlying this appeal, a group of Indiana cities seeks a declaration that Netflix and other video streaming platforms owe them past and future franchise fees under an Indiana statute. The cities filed the action in state court, but the defendant streaming platforms removed the case to federal court. Relying on the doctrine of comity abstention, the district court declined to exercise federal jurisdiction and remanded the case. At this early stage, the only question before us is whether the district court properly abstained under the teachings of Levin v. Commerce Energy, Inc., 560 U.S. 413 (2010), and like cases. We conclude that it did and therefore affirm.
Friday, July 2, 2021
Section 77z-1(b)(1) of the Private Securities Litigation Reform Act (“Reform Act”) provides:
In any private action arising under [the Securities Act of 1933], all discovery and other proceedings shall be stayed during the pendency of any motion to dismiss, unless the court finds, upon the motion of any party, that particularized discovery is necessary to preserve evidence or to prevent undue prejudice to that party.
15 U.S.C. § 77z-1(b)(1) (emphasis added).
The question presented is:
Whether the Reform Act’s discovery-stay provision applies to a private action under the Securities Act in state or federal court, or solely to a private action in federal court.
Tuesday, June 29, 2021
Yesterday’s decision dismissing the FTC’s complaint against Facebook is a high-profile example of the Twombly/Iqbal pleading framework in action. From District Judge Boasberg’s introduction:
Although the Court does not agree with all of Facebook’s contentions here, it ultimately concurs that the agency’s Complaint is legally insufficient and must therefore be dismissed. The FTC has failed to plead enough facts to plausibly establish a necessary element of all of its Section 2 claims — namely, that Facebook has monopoly power in the market for Personal Social Networking (PSN) Services. The Complaint contains nothing on that score save the naked allegation that the company has had and still has a “dominant share of th[at] market (in excess of 60%).” Redacted Compl., ¶ 64
Judge Boasberg did, however, give the FTC 30 days to file an amended complaint.
Friday, June 25, 2021
Today the Supreme Court issued its decision in TransUnion LLC v. Ramirez (covered earlier here). It’s 5-4, with Justice Kavanaugh writing the majority opinion joined by Chief Justice Roberts and Justices Alito, Gorsuch, and Barrett. Justice Thomas writes one dissent, which is joined by Justices Breyer, Sotomayor, and Kagan. And Justice Kagan writes another dissent, which is joined by Justices Breyer and Sotomayor.
The case is a class action bringing claims under the federal Fair Credit Reporting Act (FCRA), and the key issue in the case is Article III standing. The majority finds that Article III was satisfied for some class members and claims, but was not satisfied for others. From the majority’s introduction:
In this case, a class of 8,185 individuals sued TransUnion, a credit reporting agency, in federal court under the Fair Credit Reporting Act. The plaintiffs claimed that TransUnion failed to use reasonable procedures to ensure the accuracy of their credit files, as maintained internally by TransUnion. For 1,853 of the class members, TransUnion provided misleading credit reports to third-party businesses. We conclude that those 1,853 class members have demonstrated concrete reputational harm and thus have Article III standing to sue on the reasonable-procedures claim. The internal credit files of the other 6,332 class members were not provided to third-party businesses during the relevant time period. We conclude that those 6,332 class members have not demonstrated concrete harm and thus lack Article III standing to sue on the reasonable-procedures claim.
In two other claims, all 8,185 class members complained about formatting defects in certain mailings sent to them by TransUnion. But the class members other than the named plaintiff Sergio Ramirez have not demonstrated that the alleged formatting errors caused them any concrete harm. Therefore, except for Ramirez, the class members do not have standing as to those two claims.
This was not the result that we urged in this legal scholars amicus brief, which was joined by myself, Tommy Bennett, Erwin Chemerinsky, Heather Elliott, Steve Vladeck, and Howard Wasserman. We had argued in favor of Article III standing for the entire class as to all of the claims they proved at trial. One point that we made, however, found some purchase in Justice Thomas’s dissenting opinion—that rejecting Article III standing in federal court would not necessarily stop these same federal claims from being pursued by these same plaintiffs in state court. Here’s footnote 9 from the Thomas dissent:
Today’s decision might actually be a pyrrhic victory for TransUnion. The Court does not prohibit Congress from creating statutory rights for consumers; it simply holds that federal courts lack jurisdiction to hear some of these cases. That combination may leave state courts—which “are not bound by the limitations of a case or controversy or other federal rules of justiciability even when they address issues of federal law,” ASARCO Inc. v. Kadish, 490 U. S. 605, 617 (1989)—as the sole forum for such cases, with defendants unable to seek removal to federal court. See also Bennett, The Paradox of Exclusive State-Court Jurisdiction Over Federal Claims, 105 Minn. L. Rev. 1211 (2021). By declaring that federal courts lack jurisdiction, the Court has thus ensured that state courts will exercise exclusive jurisdiction over these sorts of class actions.
As to Article III standing generally, Justice Thomas’s final paragraph is notable:
Ultimately, the majority seems to pose to the reader a single rhetorical question: Who could possibly think that a person is harmed when he requests and is sent an incomplete credit report, or is sent a suspicious notice informing him that he may be a designated drug trafficker or terrorist, or is not sent anything informing him of how to remove this inaccurate red flag? The answer is, of course, legion: Congress, the President, the jury, the District Court, the Ninth Circuit, and four Members of this Court.
In addition to Article III standing, TransUnion presented a question regarding whether the class action satisfied Rule 23(a)’s typicality requirement. The Court did not address that question, however: “In light of our conclusion about Article III standing, we need not decide whether Ramirez’s claims were typical of the claims of the class under Rule 23. On remand, the Ninth Circuit may consider in the first instance whether class certification is appropriate in light of our conclusion about standing.”