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.
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.”
Monday, June 21, 2021
Today the Supreme Court issued its decision in Goldman Sachs Group, Inc. v. Arkansas Teacher Retirement System. Justice Barrett writes the opinion, which is unanimous as to some parts and a majority opinion as to the rest. Here’s the full breakdown:
BARRETT, J., delivered the opinion of the Court, in which ROBERTS, C. J., and BREYER, KAGAN, and KAVANAUGH, JJ., joined in full; in which THOMAS, ALITO, and GORSUCH, JJ., joined as to Parts I and II–A; and in which SOTOMAYOR, J., joined as to Parts I, II–A–1, and II–B. SOTOMAYOR, J., filed an opinion concurring in part and dissenting in part. GORSUCH, J., filed an opinion concurring in part and dissenting in part, in which THOMAS and ALITO, JJ., joined.
The case involves a securities-fraud class action against Goldman Sachs. The district court certified the class and the Second Circuit affirmed class certification. Here’s how Justice Barrett summarizes the decision:
In this Court, Goldman argues that the Second Circuit erred twice: first, by holding that the generic nature of its alleged misrepresentations is irrelevant to the price impact inquiry; and second, by assigning Goldman the burden of persuasion to prove a lack of price impact.
On the first question, the parties now agree, as do we, that the generic nature of a misrepresentation often is important evidence of price impact that courts should consider at class certification. Because we conclude that the Second Circuit may not have properly considered the generic nature of Goldman’s alleged misrepresentations, we vacate and remand for the Court of Appeals to reassess the District Court’s price impact determination. On the second question, we agree with the Second Circuit that our precedents require defendants to bear the burden of persuasion to prove a lack of price impact by a preponderance of the evidence. We emphasize, though, that the burden of persuasion should rarely be outcome determinative.
Thursday, June 17, 2021
Today the Supreme Court issued its decision in Nestlé USA, Inc. v. Doe (covered earlier here). The plaintiffs brought claims under the Alien Tort Statute (ATS) against two American companies—Nestlé USA and Cargill—that “purchase, process, and sell cocoa. They did not own or operate farms in Ivory Coast. But they did buy cocoa from farms located there. They also provided those farms with technical and financial resources—such as training, fertilizer, tools, and cash—in exchange for the exclusive right to purchase cocoa.” The plaintiffs “are six individuals from Mali who allege that they were trafficked into Ivory Coast as child slaves to produce cocoa” and that the defendants’ arrangements with those cocoa farms aided and abetted child slavery.
The Supreme Court concludes that the plaintiffs “improperly seek extraterritorial application of the ATS.” It’s quite a fractured opinion, however:
THOMAS, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II, in which ROBERTS, C. J., and BREYER, SOTOMAYOR, KAGAN, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined, and an opinion with respect to Part III, in which GORSUCH and KAVANAUGH, JJ., joined. GORSUCH, J., filed a concurring opinion, in which ALITO, J., joined as to Part I, and in which KAVANAUGH, J., joined as to Part II. SOTOMAYOR, J., filed an opinion concurring in part and concurring in the judgment, in which BREYER and KAGAN, JJ., joined. ALITO, J., filed a dissenting opinion.
A majority of the Court joins Part II of Justice Thomas’s opinion, which recognizes based on the Court’s earlier case law that courts “cannot give ‘extraterritorial reach’ to any cause of action judicially created under the ATS.” Therefore, ATS plaintiffs “must establish that ‘conduct relevant to the statute’s focus occurred in the United States.’” The plaintiffs here did not satisfy this requirement:
Nearly all the conduct that they say aided and abetted forced labor—providing training, fertilizer, tools, and cash to overseas farms—occurred in Ivory Coast. The Ninth Circuit nonetheless let this suit proceed because respondents pleaded as a general matter that “every major operational decision by both companies is made in or approved in the U. S.” App. 314. But allegations of general corporate activity—like decisionmaking—cannot alone establish domestic application of the ATS.
As we made clear in Kiobel, a plaintiff does not plead facts sufficient to support domestic application of the ATS simply by alleging “mere corporate presence” of a defendant. 569 U. S., at 125. Pleading general corporate activity is no better. Because making “operational decisions” is an activity common to most corporations, generic allegations of this sort do not draw a sufficient connection between the cause of action respondents seek—aiding and abetting forced labor overseas—and domestic conduct.
Beyond this holding, here’s a quick headcount on where the justices come out on other issues relating to the ATS:
Justices Thomas, Gorsuch, and Kavanaugh argue that the federal judiciary lacks the authority even to recognize a cause of action for the kind of claim asserted here. Justices Breyer, Sotomayor, and Kagan argue against this position.
Justices Breyer, Alito, Sotomayor, Kagan, Gorsuch, and Kavanaugh all agree that domestic corporations are not categorically immune from suit under the ATS.
Justice Alito indicates some sympathy with the Thomas/Gorsuch/Kavanaugh view about the judiciary’s authority to recognize new ATS claims (“To be sure, Part III of JUSTICE THOMAS’s opinion and Part II of JUSTICE GORSUCH’s opinion make strong arguments that federal courts should never recognize new claims under the ATS”), but he states that “this issue was not raised by petitioners’ counsel, and I would not reach it here.” Justice Alito also disagrees with the Court deciding the case on extraterritoriality grounds, stating instead that he would “reject petitioners’ argument on the question of corporate immunity, vacate the judgment below, and remand these cases for further proceedings.”
Friday, May 28, 2021
Yesterday the Supreme Court issued a unanimous decision in San Antonio v. Hotels.com, L. P. Justice Alito’s opinion for the Court begins:
Civil litigation in the federal courts is often an expensive affair, and each party, win or lose, generally bears many of its own litigation expenses, including attorney’s fees that are subject to the so-called American Rule. Baker Botts L. L. P. v. ASARCO LLC, 576 U. S. 121, 126 (2015). But certain “costs” are treated differently. Federal Rule of Appellate Procedure 39 governs the taxation of appellate “costs,” and the question in this case is whether a district court has the discretion to deny or reduce those costs. We hold that it does not and therefore affirm the judgment below.
Although the Court concludes that “Rule 39 does not permit a district court to alter a court of appeals’ allocation of the costs listed in subdivision (e) of that Rule,” it does let the appellate court delegate the cost-allocation question to the district court:
In all events, if a court of appeals thinks that a district court is better suited to allocate the appellate costs listed in Rule 39(e), the court of appeals may delegate that responsibility to the district court, as several Courts of Appeals have done in the past. See, e.g., Emmenegger v. Bull Moose Tube Co., 324 F. 3d 616, 626 (CA8 2003); Guse v. J. C. Penney Co., 570 F. 2d 679, 681–682 (CA7 1978). The parties agree that this pragmatic approach is permitted. See Tr. of Oral Arg. 15, 44. And nothing we say here should be read to cast doubt on it. See Rule 39(a) (imposing no direct limitations on the court’s ability to “orde[r] otherwise”); Rule 41(a) (the mandate includes “any direction about costs”).
And Justice Alito’s opinion also encourages litigants to make their arguments about cost allocation to the appellate court before it makes its cost-allocation decision. Although he recognizes that “the current Rules and the relevant statutes could specify more clearly the procedure that such a party should follow to bring their arguments to the court of appeals,” he writes:
Rule 27 sets forth a generally applicable procedure for seeking relief in a court of appeals, and a simple motion “for an order” under Rule 27 should suffice to seek an order under Rule 39(a). Compare Fed. Rule App. Proc. 39(a) (“The following rules apply unless . . . the court orders otherwise”) with Rule 27(a) (“An application for an order . . . is made by motion unless these rules prescribe another form”). The OTCs also identify instances where parties have raised their arguments through other procedural vehicles, including merits briefing, see Rule 28, objections to a bill of costs, see Rule 39(d)(2), and petitions for rehearing, see Rule 40. Brief for Respondents 42, nn. 9–11. We do not foreclose litigants from raising their arguments in any manner consistent with the relevant federal and local Rules.
And finally, Justice Alito flags but does not resolve an issue raised by the Solicitor General about the relationship between FRAP 39 and 28 U.S.C. § 1920. Here’s footnote 4:
As the United States points out, see Brief for United States as Amicus Curiae 19, n. 4, we have interpreted Rule 54(d) to provide for taxing only the costs already made taxable by statute, namely, 28 U. S. C. §1920. See Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U. S. 437, 441–442 (1987). Supersedeas bond premiums, despite being referenced in Appellate Rule 39(e)(3), are not listed as taxable costs in §1920. San Antonio has not raised any argument that Rule 39 is inconsistent with §1920 in this respect. We accordingly do not consider this issue.
Wednesday, May 19, 2021
SCOTUS Cert Grant on Subject Matter Jurisdiction over Applications to Confirm or Vacate Arbitration Awards
This week the Supreme Court granted certiorari in Badgerow v. Walters, which involves whether federal courts have subject-matter jurisdiction over applications to confirm or vacate arbitration awards. Here’s the question presented (with the usual wind-up):
This case presents a clear and intractable conflict regarding an important jurisdictional question under the Federal Arbitration Act (FAA), 9 U.S.C. 1-16.
As this Court has repeatedly confirmed, the FAA does not itself confer federal-question jurisdiction; federal courts must have an independent jurisdictional basis to entertain matters under the Act. In Vaden v. Discover Bank, 556 U.S. 49 (2009), this Court held that a federal court, in reviewing a petition to compel arbitration under Section 4 of the Act, may “look through” the petition to decide whether the parties’ underlying dispute gives rise to federal-question jurisdiction. In so holding, the Court focused on the particular language of Section 4, which is not repeated elsewhere in the Act.
After Vaden, the circuits have squarely divided over whether the same “look-through” approach also applies to motions to confirm or vacate an arbitration award under Sections 9 and 10. In Quezada v. Bechtel OG & C Constr. Servs., Inc., 946 F.3d 837 (5th Cir. 2020), the Fifth Circuit acknowledged the 3-2 “circuit split,” and a divided panel held that the “look-through” approach applies under Sections 9 and 10. In the proceedings below, the Fifth Circuit declared itself “bound” by that earlier decision, and applied the “look-through” approach to establish jurisdiction. That holding was outcome-determinative, and this case is a perfect vehicle for resolving the widespread disagreement over this important threshold question.
The question presented is:
Whether federal courts have subject-matter jurisdiction to confirm or vacate an arbitration award under Sections 9 and 10 of the FAA where the only basis for jurisdiction is that the underlying dispute involved a federal question.
Monday, May 17, 2021
Today the Supreme Court issued a 7-1 decision in BP P.L.C. v. Mayor and City Council of Baltimore (covered earlier here). Justice Gorsuch writes the majority opinion, joined by Chief Justice Roberts and Justices Thomas, Breyer, Kagan, Kavanaugh, and Barrett. Justice Sotomayor dissents, and Justice Alito did not participate.
At issue in the case is 28 U.S.C. § 1447(d), which forbids appellate review of a district court’s remand order “except that an order remanding a case to the State court from which it was removed pursuant to section 1442 or 1443 of this title shall be reviewable by appeal or otherwise.” Justice Gorsuch’s opinion begins:
This case began when Baltimore’s mayor and city council sued various energy companies for promoting fossil fuels while allegedly concealing their environmental impacts. But the merits of that claim have nothing to do with this appeal. The only question before us is one of civil procedure: Does 28 U. S. C. §1447(d) permit a court of appeals to review any issue in a district court order remanding a case to state court where the defendant premised removal in part on the federal officer removal statute, §1442, or the civil rights removal statute, §1443?
The answer to that question is: Yes. Justice Gorsuch’s opinion emphasizes in particular the use of the word “order” in § 1447(d): “[W]hen a district court’s removal order rejects all of the defendants’ grounds for removal, §1447(d) authorizes a court of appeals to review each and every one of them. After all, the statute allows courts of appeals to examine the whole of a district court’s ‘order,’ not just some of its parts or pieces.”
The majority does not, however, consider the merits of the defendants’ arguments in favor of removal:
The Fourth Circuit erred in holding that it was powerless to consider all of the defendants’ grounds for removal under §1447(d). In light of that error, the defendants ask us to consider some of those additional grounds ourselves. That task, however, does not implicate the circuit split that we took this case to resolve and we believe the wiser course is to leave these matters for the Fourth Circuit to resolve in the first instance.
Justice Sotomayor dissents. Her opinion concludes:
Section 1447(d) places “broad restrictions on the power of federal appellate courts to review district court orders remanding removed cases to state court.” Things Remembered, Inc. v. Petrarca, 516 U. S. 124, 127 (1995). After today’s decision, defendants can sidestep these restrictions by making near-frivolous arguments for removal under §1442 or §1443. Congress, of course, can amend §1447(d) to make even clearer that appellate review of a district court remand order extends to only §1442 or §1443. Because I believe §1447 already bears that meaning, I respectfully dissent.
Today the Supreme Court issued a 6-3 decision in Edwards v. Vannoy (covered earlier here). Justice Kavanaugh’s majority opinion, joined by Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and Barrett, begins:
Last Term in Ramos v. Louisiana, 590 U. S. ___ (2020), this Court held that a state jury must be unanimous to convict a criminal defendant of a serious offense. Ramos repudiated this Court’s 1972 decision in Apodaca v. Oregon, 406 U. S. 404, which had allowed non-unanimous juries in state criminal trials. The question in this case is whether the new rule of criminal procedure announced in Ramos applies retroactively to overturn final convictions on federal collateral review. Under this Court’s retroactivity precedents, the answer is no.
This Court has repeatedly stated that a decision announcing a new rule of criminal procedure ordinarily does not apply retroactively on federal collateral review. See Teague v. Lane, 489 U. S. 288, 310 (1989) (plurality opinion); see also Linkletter v. Walker, 381 U. S. 618, 639–640, and n. 20 (1965). Indeed, in the 32 years since Teague underscored that principle, this Court has announced many important new rules of criminal procedure. But the Court has not applied any of those new rules retroactively on federal collateral review. See, e.g., Whorton v. Bockting, 549 U. S. 406, 421 (2007) (Confrontation Clause rule recognized in Crawford v. Washington, 541 U. S. 36 (2004), does not apply retroactively). And for decades before Teague, the Court also regularly declined to apply new rules retroactively, including on federal collateral review. See, e.g., DeStefano v. Woods, 392 U. S. 631, 635 (1968) (per curiam) (jury-trial rule recognized in Duncan v. Louisiana, 391 U. S. 145 (1968), does not apply retroactively).
Later in the opinion, Justice Kavanaugh overrules Teague v. Lane’s principle that “watershed” rules of criminal procedure may apply retroactively on habeas review:
If landmark and historic criminal procedure decisions—including Mapp, Miranda, Duncan, Crawford, Batson, and now Ramos—do not apply retroactively on federal collateral review, how can any additional new rules of criminal procedure apply retroactively on federal collateral review? At this point, some 32 years after Teague, we think the only candid answer is that none can—that is, no new rules of criminal procedure can satisfy the watershed exception. We cannot responsibly continue to suggest otherwise to litigants and courts. In Teague itself, the Court recognized that the purported exception was unlikely to apply in practice, because it was “unlikely” that such watershed “components of basic due process have yet to emerge.” 489 U. S., at 313 (plurality opinion). The Court has often repeated that “it is unlikely that any of these watershed rules has yet to emerge.” Tyler, 533 U. S., at 667, n. 7 (alteration and internal quotation marks omitted); see also, e.g., Whorton, 549 U. S., at 417; Summerlin, 542 U. S., at 352. And for decades, the Court has rejected watershed status for new procedural rule after new procedural rule, amply demonstrating that the purported exception has become an empty promise. Continuing to articulate a theoretical exception that never actually applies in practice offers false hope to defendants, distorts the law, misleads judges, and wastes the resources of defense counsel, prosecutors, and courts. Moreover, no one can reasonably rely on an exception that is non-existent in practice, so no reliance interests can be affected by forthrightly acknowledging reality. It is time— probably long past time—to make explicit what has become increasingly apparent to bench and bar over the last 32 years: New procedural rules do not apply retroactively on federal collateral review. The watershed exception is moribund. It must “be regarded as retaining no vitality.” Herrera v. Wyoming, 587 U. S. ___, ___ (2019) (slip op., at 11) (internal quotation marks omitted).
Justice Thomas writes a concurring opinion joined by Justice Gorsuch. And Justice Gorsuch writes a concurring opinion joined by Justice Thomas.
Justice Kagan writes a dissenting opinion, joined by Justices Breyer and Sotomayor. The dissenters take particular aim at the majority’s overruling of Teague. From Justice Kagan’s introduction:
So everything rests on the majority’s last move—the overturning of Teague’s watershed exception. If there can never be any watershed rules—as the majority here asserts out of the blue—then, yes, jury unanimity cannot be one. The result follows trippingly from the premise. But adopting the premise requires departing from judicial practice and principle. In overruling a critical aspect of Teague, the majority follows none of the usual rules of stare decisis. It discards precedent without a party requesting that action. And it does so with barely a reason given, much less the “special justification” our law demands. Halliburton Co. v. Erica P. John Fund, Inc., 573 U. S. 258, 266 (2014). The majority in that way compounds its initial error: Not content to misapply Teague’s watershed provision here, see ante, at 10–14, the majority forecloses any future application, see ante, at 14–15. It prevents any procedural rule ever—no matter how integral to adjudicative fairness—from benefiting a defendant on habeas review. Thus does a settled principle of retroactivity law die, in an effort to support an insupportable ruling.
Monday, April 26, 2021
Whether the court of appeals erred when it rejected the United States’ assertion of the state-secrets privilege based on the court’s own assessment of potential harms to the national security, and required discovery to proceed further under 28 U.S.C. 1782(a) against former Central Intelligence Agency (CIA) contractors on matters concerning alleged clandestine CIA activities.
Thursday, April 22, 2021
Section 13(b) of the Federal Trade Commission Act authorizes the Commission to obtain, “in proper cases,” a “permanent injunction” in federal court against “any person, partnership, or corporation” that it believes “is violating, or is about to violate, any provision of law” that the Commission enforces. 87 Stat. 592, 15 U. S. C. §53(b). The question presented is whether this statutory language authorizes the Commission to seek, and a court to award, equitable monetary relief such as restitution or disgorgement. We conclude that it does not.
The Court’s analysis relies heavily on the interplay between §13(b) and other provisions of the Federal Trade Commission Act (§5 and §19) that deal explicitly with monetary relief. Justice Breyer concludes by observing:
Nothing we say today, however, prohibits the Commission from using its authority under §5 and §19 to obtain restitution on behalf of consumers. If the Commission believes that authority too cumbersome or otherwise inadequate, it is, of course, free to ask Congress to grant it further remedial authority.
Friday, April 9, 2021
This week’s Supreme Court decision in Google LLC v. Oracle America, Inc. is mostly about copyright law. But there was a very interesting procedural question in the case regarding what standard of review the Court should use in connection with the jury’s verdict in favor of Google on its fair use defense. The answer is: it’s complicated. Justice Breyer’s majority opinion does say that “the ultimate ‘fair use’ question” is subject to de novo review. But he also states that “subsidiary factual questions” must be reviewed deferentially—and that deference ends up playing a very important role in the Court’s decision.
In this post I want to make two quick points about how the Court handles the standard of review issue. First, as I’ve argued in a recent article, I don’t think that Rule 50 of the Federal Rules of Civil Procedure, which provides that a court may displace a jury’s verdict only when “a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue,” allows a court to declare that a certain issue (like fair use) is categorically subject to de novo review. But second, Justice Breyer’s deference to the jury on implicitly-found “subsidiary” facts leads to an analysis of fair use that—at the end of the day—isn’t so different from the sort of deferential review Rule 50 would require.
Tuesday, April 6, 2021
In Brecht v. Abrahamson, 507 U.S. 619 (1993), the Court held that the test for determining whether a constitutional error was harmless on habeas review is whether the defendant suffered “actual prejudice.” Congress later enacted 28 U.S.C. § 2254(d)(1), which prohibits habeas relief on a claim that was adjudicated on the merits by a state court unless the adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law.” Although the Court has held that the Brecht test “subsumes” § 2254(d)(1)’s requirements, the Court declared in Davis v. Ayala, 576 U.S. 257, 267 (2015), that those requirements are still a “precondition” for relief and that a state-court harmlessness determination under Chapman v. California, 386 U.S. 18 (1967), still retains “significance” under the Brecht test. The question presented is:
May a federal habeas court grant relief based solely on its conclusion that the Brecht test is satisfied, as the Sixth Circuit held, or must the court also find that the state court’s Chapman application was unreasonable under § 2254(d)(1), as the Second, Third, Seventh, Ninth, and Tenth Circuits have held?
Monday, April 5, 2021
Today the Supreme Court issued its decision in Google LLC v. Oracle America, Inc. By a 6-2 vote, it holds that Google’s copying of a portion of a computer program owned by Oracle constituted “fair use” for purposes of federal copyright law. The opinion is focused mostly on substantive copyright law, but—as covered earlier here and here—the posture of the case prompted some interesting procedural questions. The jury had ruled in favor of Google on its fair use defense, and the Supreme Court asked the parties to file supplemental letter briefs addressing “the appropriate standard of review” regarding fair use, “including but not limited to the implications of the Seventh Amendment, if any, on that standard.”
Monday, March 29, 2021
Whether a state attorney general vested with the power to defend state law should be permitted to intervene after a federal court of appeals invalidates a state statute when no other state actor will defend the law.
Thursday, March 25, 2021
Today the Supreme Court issued its decision in Ford Motor Co. v. Montana Eighth Judicial District Court (which is consolidated with a case from Minnesota, Ford Motor Co. v. Bandemer). The Court unanimously upholds personal jurisdiction over Ford in both cases. Justice Kagan writes the majority opinion, joined by Chief Justice Roberts and Justices Breyer, Sotomayor, and Kavanaugh. Justice Alito writes a separate concurring opinion, and Justice Gorsuch writes a separate concurring opinion that is joined by Justice Thomas. (Justice Barrett did not participate.)
More coverage to come, but here’s a very quick recap. Justice Kagan’s majority opinion begins:
In each of these two cases, a state court held that it had jurisdiction over Ford Motor Company in a products-liability suit stemming from a car accident. The accident happened in the State where suit was brought. The victim was one of the State’s residents. And Ford did substantial business in the State—among other things, advertising, selling, and servicing the model of vehicle the suit claims is defective. Still, Ford contends that jurisdiction is improper because the particular car involved in the crash was not first sold in the forum State, nor was it designed or manufactured there. We reject that argument. When a company like Ford serves a market for a product in a State and that product causes injury in the State to one of its residents, the State’s courts may entertain the resulting suit. (emphasis added)
Justice Kagan explains that these cases are proper exercises of specific jurisdiction, and she provides a helpful summary of what specific jurisdiction requires:
The plaintiff’s claims, we have often stated, “must arise out of or relate to the defendant’s contacts” with the forum. Bristol-Myers, 582 U. S., at ___ (slip op., at 5) (quoting Daimler, 571 U. S., at 127; alterations omitted); see, e.g., Burger King, 471 U. S., at 472; Helicopteros Nacionales de Colombia, S. A. v. Hall, 466 U. S. 408, 414 (1984); International Shoe, 326 U. S., at 319. Or put just a bit differently, “there must be ‘an affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State and is therefore subject to the State’s regulation.’” Bristol-Myers, 582 U. S., at ___−___, ___ (slip op., at 5−6, 7) (quoting Goodyear, 564 U. S., at 919).
In applying this test, Justice Kagan rejects the “causation-only approach” put forward by Ford, which would have “locat[ed] specific jurisdiction in the State where Ford sold the car in question, or else the States where Ford designed and manufactured the vehicle.” She notes that in the World-Wide Volkswagen case, “this Court has stated that specific jurisdiction attaches in cases identical to the ones here—when a company like Ford serves a market for a product in the forum State and the product malfunctions there.”
In the final part of the opinion (II-C), Justice Kagan distinguishes the Supreme Court’s recent decisions rejecting personal jurisdiction in Bristol-Myers and Walden. As she explains: “We found jurisdiction improper in Bristol-Myers because the forum State, and the defendant’s activities there, lacked any connection to the plaintiffs’ claims.” And Walden “had no occasion to address the necessary connection between a defendant’s in-state activity and the plaintiff’s claims” because the defendant had no contacts with the forum state to begin with.
On to the concurring opinions...
Justice Alito agrees that the result in Ford “is settled by our case law” but he expresses a “quibble” with what he calls the “new gloss that the Court puts on our case law.” He writes that the majority “recognizes a new category of cases in which personal jurisdiction is permitted: those in which the claims do not ‘arise out of ‘ (i.e., are not caused by) the defendant’s contacts but nevertheless sufficiently ‘relate to’ those contacts in some undefined way, ante, at 8–9.” He also states that “for the reasons outlined in Justice Gorsuch’s thoughtful opinion, there are grounds for questioning the standard that the Court adopted in International Shoe Co. v. Washington, 326 U. S. 310 (1945)” and that “there are also reasons to wonder whether the case law we have developed since that time is well suited for the way in which business is now conducted.”
Justice Gorsuch’s concurring opinion (joined by Justice Thomas) also takes issue with the majority’s recognition that specific jurisdiction is appropriate when a lawsuit “relates to” the defendant’s activities in the forum. In the second part of the opinion, however, he challenges “the old International Shoe dichotomy” between specific and general jurisdiction, noting “it’s hard not to ask how we got here and where we might be headed.” Justice Gorsuch posits that “the right question” is “what the Constitution as originally understood requires, not what nine judges consider ‘fair’ and ‘just.’” And after surveying pre-International Shoe practice, Justice Gorsuch indicates that the current approach to personal jurisdiction gives corporations “special jurisdictional protections in the name of the Constitution.” In particular:
Even today, this Court usually considers corporations “at home” and thus subject to general jurisdiction in only one or two States. All in a world where global conglomerates boast of their many “headquarters.” The Court has issued these restrictive rulings, too, even though individual defendants remain subject to the old “tag” rule, allowing them to be sued on any claim anywhere they can be found. Burnham, 495 U. S., at 610–611.
Ultimately, Justice Gorsuch agrees that personal jurisdiction is proper in the Ford cases: “The parties have not pointed to anything in the Constitution’s original meaning or its history that might allow Ford to evade answering the plaintiffs’ claims in Montana or Minnesota courts. . . . The real struggle here isn’t with settling on the right outcome in these cases, but with making sense of our personal jurisdiction jurisprudence and International Shoe’s increasingly doubtful dichotomy. On those scores, I readily admit that I finish these cases with even more questions than I had at the start.”
Tuesday, March 23, 2021
The final version of my article, Appellate Courts and Civil Juries, 2021 Wisconsin L. Rev. 1, is now posted. It tackles the question of what standard of review appellate courts should use for findings made by civil juries. There’s a fair amount of confusion on this issue, because some appellate courts have conflated it with the framework for choosing the standard of appellate review for rulings by lower court judges. (The confusion is not helped by the extent to which the often elusive distinction between “law” and “fact” plays a role.)
This is also an issue that the Supreme Court is considering right now in Google LLC v. Oracle America, Inc., a $9 billion lawsuit about Google’s use of Java programming code to develop its Android operating system. SCOTUS issued a specific order asking the parties to brief the appropriate standard of review for the jury’s verdict in favor of Google on its fair use defense. The Google case was argued at the beginning of this Term but is still awaiting a decision—here are some of my thoughts on the case from back in October after the oral argument: SCOTUS, Google v. Oracle, and Appellate Review of Civil Jury Verdicts.
I enjoyed working on this piece, and I hope folks find it helpful. Special thanks to the great editors at the Wisconsin Law Review, who did a fantastic and timely job getting the article finalized—maybe even in time for SCOTUS to read it! Here’s the full abstract:
In federal civil litigation, decisionmaking power is shared by juries, trial courts, and appellate courts. This Article examines an unresolved tension in the different doctrines that allocate authority among these institutions, one that has led to confusion surrounding the relationship between appellate courts and civil juries. At base, the current uncertainty stems from a longstanding lack of clarity regarding the distinction between matters of law and matters of fact. The high-stakes Oracle-Google litigation--which is now before the Supreme Court--exemplifies this. In that case, the Federal Circuit reasoned that an appellate court may assert de novo review over a jury's verdict simply by characterizing a particular issue as legal rather than factual. But this approach misperceives the approach demanded by Rule 50 of the Federal Rules of Civil Procedure, which permits judicial override of a jury's verdict only when "a reasonable jury would not have a legally sufficient evidentiary basis" to reach such a verdict.
Rule 50's reasonable-jury standard does not permit de novo review of a jury's verdict on a particular issue. Rather, it requires deference to the jury's conclusion on that issue unless the reviewing court can explain why principles of substantive law or other aspects of the trial record render that verdict unreasonable. This deferential standard of review faithfully implements the text and structure of the Federal Rules and respects the jury's role in our federal system. Yet, it also preserves appellate courts' ability to provide meaningful clarification that will guide future decisionmakers.
Monday, March 22, 2021
Whether 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, as the Fourth and Sixth Circuits have held, or excludes such tribunals without expressing an exclusionary intent, as the Second, Fifth, and, in the case below, the Seventh Circuit, have held.
Tuesday, March 9, 2021
Ann Woolhandler and Julia Mahoney have posted on SSRN a draft of their article, Federal Courts and Takings Litigation. Here’s the abstract:
Disagreements about takings claims extend to both substantive and jurisdictional issues. Many advocates of deference to state and local government land use decisions also oppose a significant role for federal courts in adjudicating disputes over these decisions, while a number of property rights advocates argue that federal courts are an appropriate forum for such disputes. These issues were brought into sharp relief by the Supreme Court’s 2019 decision in Knick v. Township of Scott, which allows property owners to resort to federal court without first pursuing compensation in state court.
While Knick clearly expands the lower federal court role in takings claims, many questions remain, for it is not yet clear whether federal courts will embrace a robust federal judicial role in land use cases. This Article surveys the history of takings claims in the federal courts and recommends that going forward federal courts develop an abstention doctrine particular to takings cases in order to ensure prudent deployment of judicial resources. This Article also explains why § 1331 actions may be superior vehicles for takings cases than § 1983 actions.
Monday, March 8, 2021
Today the Supreme Court issued an 8-1 decision in Uzuegbunam v. Preczewski, which addresses whether claims for nominal damages can satisfy Article III’s redressibility requirement. They can.
Here are some highlights from Part III of Justice Thomas’s majority opinion:
Because nominal damages were available at common law in analogous circumstances, we conclude that a request for nominal damages satisfies the redressability element of standing where a plaintiff’s claim is based on a completed violation of a legal right. . . .
This is not to say that a request for nominal damages guarantees entry to court. Our holding concerns only redressability. It remains for the plaintiff to establish the other elements of standing (such as a particularized injury); plead a cognizable cause of action, Planck v. Anderson, 5 T. R. 37, 41, 101 Eng. Rep. 21, 23 (K. B. 1792) (“if no [actual] damage be sustained, the creditor has no cause of action” for some claims); and meet all other relevant requirements. We hold only that, for the purpose of Article III standing, nominal damages provide the necessary redress for a completed violation of a legal right.
Applying this principle here is straightforward. For purposes of this appeal, it is undisputed that Uzuegbunam experienced a completed violation of his constitutional rights when respondents enforced their speech policies against him. Because “every violation [of a right] imports damage,” Webb, 29 F. Cas., at 509, nominal damages can redress Uzuegbunam’s injury even if he cannot or chooses not to quantify that harm in economic terms.
Chief Justice Roberts dissents, arguing that Article III is not satisfied because “an award of nominal damages does not alleviate the harms suffered by a plaintiff, and is not intended to.” Even under the majority’s view, however, Roberts contends that “[w]here a plaintiff asks only for a dollar, the defendant should be able to end the case by giving him a dollar, without the court needing to pass on the merits of the plaintiff ’s claims.” And he further asserts that such a defendant might invoke FRCP 68 and thereby “render the plaintiff liable for any subsequent costs if he receives only nominal damages.”
Justice Kavanaugh joins the majority opinion, but he writes a one-paragraph concurring opinion endorsing the view—which was also urged by the Solicitor General in this case—that a defendant “should be able to accept the entry of a judgment for nominal damages against it and thereby end the litigation without a resolution of the merits.”
Friday, March 5, 2021
Today: Alabama Law Review Virtual Symposium, Ten Years of the Supreme Court's Personal Jurisdiction Revival
It’s not too late to register for the Alabama Law Review’s virtual symposium (via Zoom), Ten Years of the Supreme Court’s Personal Jurisdiction Revival. The program will run from 9:00am–3:30pm central time. You can register here.
Hope to see you all soon!