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.
Thursday, August 6, 2020
The Pound Civil Justice Institute has posted video and materials from its 2020 Forum for State Appellate Court Judges, Dangerous Secrets: Confronting Confidentiality in Our Public Courts, including papers by Dustin Benham and Sergio Campos and a state-by-state and federal compendium of statutes, decisions, and articles on confidentiality in litigation.
Thursday, June 11, 2020
California Supreme Court Decision on the Hague Convention and Contractual Waivers of Service of Process
In April, the Supreme Court of California issued a unanimous decision in Rockefeller Technology v. Changzhou SinoType Technology, 460 P.3d 764 (Cal. 2020), on the ability of parties to contractually consent to service of process by methods contrary to those allowed by the Hague Convention. Justice Corrigan’s opinion begins:
The parties here, sophisticated business entities, entered into a contract wherein they agreed to submit to the jurisdiction of California courts and to resolve disputes between them through California arbitration. They also agreed to provide notice and “service of process” to each other through Federal Express or similar courier. The narrow question we address is whether the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, November 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638 (Hague Service Convention or “the Convention”) preempts such notice provision if the Convention provides for a different method of service. Consistent with United States Supreme Court authority, we conclude that the Convention applies only when the law of the forum state requires formal service of process to be sent abroad. We further conclude that, because the parties’ agreement constituted a waiver of formal service of process under California law in favor of an alternative form of notification, the Convention does not apply.
Tuesday, April 21, 2020
There were some interesting jurisdictional issues in yesterday’s Supreme Court decision in Atlantic Richfield Co. v. Christian.
First, the Court ruled that the Montana Supreme Court’s ruling was a “final judgment” that the Supreme Court had jurisdiction to review under 28 U.S.C. § 1257, even though the Montana court’s ruling allowed the case to proceed to trial. Chief Justice Roberts’ majority opinion reasoned that the Montana Supreme Court had “exercised review in this case through a writ of supervisory control” and that “[u]nder Montana law, a supervisory writ proceeding is a self-contained case, not an interlocutory appeal.”
Second, the Supreme Court found that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) did not forbid state courts from exercising jurisdiction over actions based on state law. CERCLA “deprives state courts of jurisdiction over claims brought under the Act. But it does not displace state court jurisdiction over claims brought under other sources of law.” Chief Justice Roberts reasoned:
Section 113(b) of the Act provides that “the United States district courts shall have exclusive original jurisdiction over all controversies arising under this chapter,” so state courts lack jurisdiction over such actions. 42 U. S. C. §9613(b). This case, however, does not “arise under” the Act. The use of “arising under” in §113(b) echoes Congress’s more familiar use of that phrase in granting federal courts jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U. S. C. §1331. In the mine run of cases, “[a] suit arises under the law that creates the cause of action.” American Well Works Co. v. Layne & Bowler Co., 241 U. S. 257, 260 (1916).4
Footnote 4 clarifies:
There is a “special and small category of cases” that originate in state law yet still arise under federal law for purposes of federal question jurisdiction. Gunn v. Minton, 568 U. S. 251, 258 (2013) (internal quotation marks omitted). To qualify for this narrow exception, a state law claim must “necessarily raise” a federal issue, among other requirements. Ibid. No element of the landowners’ state common law claims necessarily raises a federal issue. Atlantic Richfield raises the Act as an affirmative defense, but “[f]ederal jurisdiction cannot be predicated on an actual or anticipated defense.” Vaden v. Discover Bank, 556 U. S. 49, 60 (2009).
Thursday, March 19, 2020
Yesterday the Delaware Supreme Court issued an important decision on federal-forum provisions (FFPs)—that is, provisions in corporate charters requiring that actions arising under the Securities Act of 1933 be filed in a federal court. In Salzberg v. Sciabacucchi, the Delaware Supreme Court overturned the Delaware Court of Chancery’s decision that FFPs were invalid under Delaware law: “Because such a provision can survive a facial challenge under our law, we reverse.”
Tuesday, March 3, 2020
The Pound Civil Justice Institute has published the report of its 2019 Judges Forum, Aggregate Litigation in State Courts: Preserving Vital Mechanisms, which features academic papers by Teddy Rave and Myriam Gilles, plus commentary and discussion by the legal experts and judges who attended.
You can find previous Judges Forum reports here.
Friday, December 6, 2019
SCOTUS cert grant on Article III standing (and severability and political balance on the Delaware courts)
(1) Does the First Amendment invalidate a longstanding state constitutional provision that limits judges affiliated with any one political party to no more than a “bare majority” on the State’s three highest courts, with the other seats reserved for judges affiliated with the “other major political party”?
(2) Did the Third Circuit err in holding that a provision of the Delaware Constitution requiring that no more than a “bare majority” of three of the state courts may be made up of judges affiliated with any one political party is not severable from a provision that judges who are not members of the majority party on those courts must be members of the other “major political party,” when the former requirement existed for more than fifty years without the latter, and the former requirement, without the latter, continues to govern appointments to two other courts?
The Court also directed the parties to brief and argue “whether respondent has demonstrated Article III standing.”
Wednesday, August 28, 2019
Wednesday, September 19, 2018
Zach Clopton has published Procedural Retrenchment and the States, 106 Cal. L. Rev. 411 (2018). Here’s the abstract:
Although not always headline grabbing, the Roberts Court has been highly interested in civil procedure. According to critics, the Court has undercut access to justice and private enforcement through its decisions on pleading, class actions, summary judgment, arbitration, standing, personal jurisdiction, and international law.
While I have much sympathy for the Court’s critics, the current discourse too often ignores the states. Rather than bemoaning the Roberts Court’s decisions to limit court access—and despairing further developments in the age of Trump—we instead might productively focus on the options open to state courts and public enforcement. Many of the aforementioned decisions are not binding on state courts, and many states have declined to follow their reasoning. This Article documents state courts deviating from Twombly and Iqbal on pleading; the Celotex trilogy on summary judgment; Wal-Mart v. Dukes on class actions; and Supreme Court decisions on standing and international law. Similarly, many of the Court’s highly criticized procedural decisions do not apply to public enforcement, and many public suits have proceeded where private litigation would have failed. This Article documents successful state-enforcement actions when class actions could not be certified, when individual claims would be sent to arbitration, and when private plaintiffs would lack Article III standing.
In sum, this Article evaluates state court and state-enforcement responses to the Roberts Court’s procedural decisions, and it suggests further interventions by state courts and public enforcers that could offset the regression in federal court access. At the same time, this analysis also illuminates serious challenges for those efforts, and it offers reasons to be cautious about state procedure and enforcement. Leveling down to state actors may not completely escape the political forces that have shaped federal procedure, and it may exacerbate some of the political economies that have undermined private enforcement and private rights to date.
Monday, May 21, 2018
Now on the Courts Law section of JOTWELL is my essay, Human Rights Litigation and the States. I review a recent article by Seth Davis and Chris Whytock, State Remedies for Human Rights, 98 B.U. L. Rev. 397 (2018).
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.
Tuesday, March 20, 2018
Supreme Court decision in Cyan: SLUSA & state court jurisdiction over 1933 Securities Act class actions
Today the Supreme Court issued a unanimous decision in Cyan, Inc. v. Beaver County Employees Retirement Fund. In an opinion authored by Justice Kagan, the Court addresses the effect of the Securities Litigation Uniform Standards Act of 1998 (SLUSA) on class actions that allege violations of only the Securities Act of 1933 (which governs the original issuance of securities). The defendants argued that SLUSA deprives state courts of jurisdiction over such class actions. The Solicitor General proposed what Justice Kagan called a “halfway-house position,” whereby state courts have jurisdiction but defendants may remove such class actions to federal court.
The Court unanimously rejects both arguments. First, the Court holds that state courts retain jurisdiction over class actions that allege only 1933 Act violations: “SLUSA’s text, read most straightforwardly, leaves in place state courts’ jurisdiction over 1933 Act claims, including when brought in class actions.” Second, the Court holds that when such class actions are filed in state court, they may not be removed to federal court. SLUSA did not exempt such class actions from the general bar on removal currently codified at 15 U.S.C. § 77v(a).
Thursday, March 15, 2018
The Vanderbilt Law Review recently published a symposium issue entitled The Least Understood Branch: The Demands and Challenges of the State Judiciary. It includes a dozen articles on these broader themes: the effects of selection method on public officials; perceived legitimacy and the state judiciary; and the power of new data and technology.
Wednesday, January 31, 2018
Earlier this month, the Sixth Circuit issued its decision in George v. Hargett. The case involves whether state officials who are sued for constitutional violations in federal court can file a new lawsuit in state court—naming the federal-court plaintiffs as state-court defendants—and then invoke issue preclusion in the federal court action. That’s what the Tennessee officials did in George, and the Sixth Circuit panel found that the state court’s ruling must be given issue-preclusive effect in federal court. The panel even called the officials’ move “an efficient and fruitful substitute” for abstention or certification—both of which the federal district court had explicitly rejected. A petition for rehearing en banc has been filed, and the Sixth Circuit has ordered the officials to respond by Thursday, February 9.
In the initial round of Sixth Circuit briefing, Suzanna Sherry authored a law-professor amicus brief arguing against giving the state-court judgment preclusive effect. (In the interest of full disclosure, I was one of the signatories to that amicus brief.) Here’s Suzanna’s summary of the George case and the panel’s recent ruling:
Eight private plaintiffs filed a federal-court lawsuit against state officials alleging various constitutional violations, some of which were intertwined with questions about the meaning of a state constitutional provision.
When the district court denied motions to dismiss, abstain under Pullman, or certify, the state officials didn’t seek interlocutory review. Instead they filed suit against the eight private plaintiffs in state court seeking a declaratory judgment that their actions were lawful under the state constitution. After denying any discovery, the state court quickly issued summary judgment for the state officials, one day before the federal court issued its judgment for the plaintiffs.
The state-court judgment wasn’t appealed, and became final before the Sixth Circuit ruled on appeal. The Sixth Circuit gave the state-court judgment issue-preclusive effect, and thus held that the state constitutional provision had to be interpreted the way the state court had interpreted it rather than the way the federal court had. (Remember, this is a just a state trial court: Its opinion wouldn’t be binding under the Erie doctrine.)
What this decision seems to do is to invite any government official sued in federal court to answer the federal complaint with a state lawsuit, in hopes of stymying the pending federal suit and intimidating civil-rights plaintiffs. It rewrites § 1983 law to allow state officials to essentially require exhaustion of state remedies. It undermines the role of the federal courts as guarantors of constitutional rights.
Here’s the opinion of the Sixth Circuit panel:
And here’s the plaintiffs’ petition for rehearing en banc:
Monday, January 22, 2018
Today the Supreme Court issued a 5-4 decision in Artis v. District of Columbia (covered earlier here), which addresses the tolling provision of the supplemental jurisdiction statute, 28 U.S.C. § 1367(d). Section 1367(d) often comes into play where a federal court dismisses all claims for which there is an independent basis for federal subject-matter jurisdiction, and then declines to exercise supplemental jurisdiction (pursuant to § 1367(c)) over the remaining claims. Anticipating that the parties would then pursue any such claims in state court, § 1367(d) provides that the limitations period for such a claim “shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.”
Justice Ginsburg’s majority opinion (joined by Chief Justice Roberts and Justices Breyer, Sotomayor, and Kagan) frames the question this way:
Does the word “tolled,” as used in §1367(d), mean the state limitations period is suspended during the pendency of the federal suit; or does “tolled” mean that, although the state limitations period continues to run, a plaintiff is accorded a grace period of 30 days to refile in state court post dismissal of the federal case? Petitioner urges the first, or stop-the-clock, reading. Respondent urges, and the District of Columbia Court of Appeals adopted, the second, or grace-period, reading.
The choice between these interpretations is crucial for Artis, because she refiled her state-law claims 59 days after the federal-court dismissal. Since she filed her federal-court suit with 2 years remaining on the state statute of limitations, this would be timely under the stop-the-clock approach but not under the grace-period approach.
The majority adopts the “stop-the-clock” reading: “We hold that § 1367(d)’s instruction to ‘toll’ a state limitations period means to hold it in abeyance, i.e., to stop the clock.” Part II of the opinion justifies this conclusion as a matter of the statutory text. Part III of the opinion then considers whether the statute “exceed[s] Congress’ authority under the Necessary and Proper Clause because its connection to Congress’ enumerated powers is too attenuated or because it is too great an incursion on the States’ domain” and whether the Court should adopt the grace-period reading to “avoid constitutional doubt.” The majority rejects this line of argument, relying on its unanimous decision in Jinks v. Richland County upholding the constitutionality of § 1367(d). It also notes that both stop-the-clock and grace-period provisions “are standard, off-the-shelf means of accounting for the fact that a claim was timely pressed in another forum. Requiring Congress to choose one over the other would impose a tighter constraint on Congress’ discretion than we have ever countenanced.”
Justice Gorsuch authored the dissenting opinion, joined by Justices Kennedy, Thomas, and Alito.
Friday, May 12, 2017
Lou reviews a recent article by Steve Subrin and Thom Main, Braking the Rules: Why State Courts Should Not Replicate Amendments to the Federal Rules of Civil Procedure, 67 Case W. Res. L. Rev. 501 (2016).
Sunday, April 2, 2017
Newly published: Stephen N. Subrin and Thomas O. Main, Braking the Rules: Why State Courts Should Not Replicate Amendments to the Federal Rules of Civil Procedure, 67 Case W. Res. L. Rev. 501 (Winter 2016).
From the Introduction:
Of course, the Federal Rules and their amendments could be the product of a flawed rulemaking process, fail to deliver on the promise of uniformity, and yet still be compelling content that is suitable for adoption by the states. But it turns out that proponents of replication at the state level would have to make a lot of assumptions that turn out not to be true, namely that:
- the number, the substantive mix, and the stakes of federal and state caseloads, respectively, are the same;
- the state courts have the judicial resources that federal procedure pre-supposes;
- the litigants in state courts can afford federal practice;
- the federal procedural amendments, whether by actual amendment or judicial decree, are working well for most cases;
- the drastic diminution of trials and juries in federal courts are salutary for our democracy; and
- state court procedural experimentation should be discouraged.
The Conclusion reveals the misguided nature of these assumptions. This Article will give examples of the mismatch of the federal amendments for the state court caseload.
The Conclusion ends with a question for state court judges. Simply put, what do you want your role as judges to be? The federal judiciary has become a huge bureaucracy (judges represent only a small percentage of the personnel) which has essentially given up on the major role of adjudication. They spend little time in the court room, and, on average, “preside over a civil trial approximately once every three months.” They, and in large measure the lawyers who appear before them, have had little experience with trials or with juries. They dispose of cases on dispositive motions and urge settlement or alternative modes of dispute resolution. The American jury is disappearing, and to have a trial is thought to be a judicial failure. This is not hyperbole. We hope that state judges avoid replicating this, and instead offer alternative models.
Wednesday, March 1, 2017
In addition to the six bills already reported here and here, House Republicans have also introduced H.R. 1118, the so-called “Innocent Sellers Fairness Act,” which would federalize the law of product liability by limiting liability for the sellers of a product. The bill is sponsored by Rep. Blake Farenthold (R-TX 27), Rep. John Duncan (R-TN 2), and Rep. Lamar Smith (R-TX 21).
The operative provisions of the bill provide:
(a) In general
No seller of any product shall be liable for personal injury, monetary loss, or damage to property arising out of an accident or transaction involving such product, unless the claimant proves one or more of the following activities by the seller:
(1) The seller was the manufacturer of the product.
(2) The seller participated in the design of the product.
(3) The seller participated in the installation of the product.
(4) The seller altered, modified, or expressly warranted the product in a manner not authorized by the manufacturer.
(5) The seller had actual knowledge of the defect in the product as a result of a recall from the manufacturer or governmental entity authorized to make such recall or actual inspection at the time the seller sold the product to the claimant.
(6) The seller had actual knowledge of the defect in the product at the time the seller supplied the product.
(7) The seller intentionally altered or modified a product warranty, warning or instruction from the manufacturer in a way not authorized by the manufacturer.
(8) The seller knowingly made a false representation about an aspect of the product not authorized by the manufacturer.
(b) Liability of seller in cases of negligence
If the claimant proves one or more of the activities described in subsection (a) and such activity was negligent, the seller’s liability is limited to the personal injury, monetary loss, or damage to property, directly caused by such activity.
These provisions resemble Section 8 of the American Legislative Exchange Council's so-called “model policy” on product liability for state legislators to copy.
Unlike the other six bills, this one has not passed the House Judiciary Committee.
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.
Friday, August 19, 2016
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.