Monday, June 17, 2019

SCOTUS Decision in Virginia House of Delegates v. Bethune-Hill: Virginia House Lacks Standing to Appeal Ruling Striking Down 2011 Legislative Districts

Today the Supreme Court issued a 5-4 decision in Virginia House of Delegates v. Bethune-Hill. Justice Ginsburg authors the majority opinion, joined by Justices Thomas, Sotomayor, Kagan, and Gorsuch. The Court rules that the Virginia House of Delegates lacks standing to appeal a three-judge district court’s decision that Virginia’s 2011 legislative districts had been racially gerrymandered in violation of the Equal Protection Clause.

The majority first rejects the argument that the State of Virginia had designated its House of Delegates to litigate on its behalf. It then finds that the House of Delegates lacks “standing in its own right,” because it had suffered no “legally and judicially cognizable” injury. Justice Ginsburg writes: “This Court has never held that a judicial decision invalidating a state law as unconstitutional inflicts a discrete, cognizable injury on each organ of government that participated in the law’s passage.”

Justice Alito authors a dissenting opinion, joined by Chief Justice Roberts and Justices Breyer and Kavanaugh.

 

 

June 17, 2019 in Federal Courts, Recent Decisions, Standing, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Monday, June 10, 2019

Some Interesting SCOTUS Cert Grants

There are some interesting grants of certiorari on today’s Supreme Court order list:

Atlantic Richfield Co. v. Christian (17-1498) presents three questions on the relationship between the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and state common-law claims, including “whether CERCLA pre-empts state common-law claims for restoration that seek cleanup remedies that conflict with EPA-ordered remedies.”

Comcast Corp. v. National Association of African American-Owned Media (18-1171) presents the question: “Does a claim of race discrimination under 42 U.S.C. § 1981 fail in the absence of but-for causation?” (There was a second question presented involving pleading standards under Twombly and Iqbal, but the Court granted cert only as to question #1.)

Intel Corp. Investment Policy Committee v. Sulyma (18-1116) presents the question: “Whether the three-year limitations period in Section 413(2) of the Employee Retirement Income Security Act, 29 U.S.C. 1113(2), which runs from ‘the earliest date on which the plaintiff had actual knowledge of the breach or violation,’ bars suit where all of the relevant information was disclosed to the plaintiff by the defendants more than three years before the plaintiff filed the complaint, but the plaintiff chose not to read or could not recall having read the information.”

McKinney v. Arizona (18-1109) presents the question: “Whether the Arizona Supreme Court was required to apply current law when weighing mitigating and aggravating evidence to determine whether a death sentence is warranted.” The second question presented is: “Whether the correction of error under Eddings v. Oklahoma, 455 U.S. 104 (1982), requires resentencing.”

Monasky v. Taglieri (18-935) presents two questions relating to the Hague Convention on the Civil Aspects of International Child Abduction. The first is: “Whether a district court’s determination of habitual residence under the Hague Convention should be reviewed de novo, as seven circuits have held, under a deferential version of de novo review, as the First Circuit has held, or under clear-error review, as the Fourth and Sixth Circuits have held.” The second question involves “whether a subjective agreement between the infant’s parents is necessary to establish her habitual residence under the Hague Convention.”

 

 

 

June 10, 2019 in Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Monday, June 3, 2019

SCOTUS Decision in Fort Bend County v. Davis: Title VII’s Charge-Filing Requirement Is Not Jurisdictional

Today the Supreme Court issued a unanimous decision in Fort Bend County v. Davis, covered earlier here. Justice Ginsburg writes the opinion. From the first paragraph: 

As a precondition to the commencement of a Title VII action in court, a complainant must first file a charge with the Equal Employment Opportunity Commission (EEOC or Commission). §2000e–5(e)(1), (f)(1). The question this case presents: Is Title VII’s charge-filing precondition to suit a “jurisdictional” requirement that can be raised at any stage of a proceeding; or is it a procedural prescription mandatory if timely raised, but subject to forfeiture if tardily asserted? We hold that Title VII’s charge-filing instruction is not jurisdictional, a term generally reserved to describe the classes of cases a court may entertain (subject-matter jurisdiction) or the persons over whom a court may exercise adjudicatory authority (personal jurisdiction). Kontrick v. Ryan, 540 U. S. 443, 455 (2004). Prerequisites to suit like Title VII’s charge-filing instruction are not of that character; they are properly ranked among the array of claim-processing rules that must be timely raised to come into play.

Although the charge-filing precondition is not jurisdictional, Justice Ginsburg writes that it is “‘mandatory’ in the sense that a court must enforce the rule if a party properly raises it.” [Op. at 7 (citing Eberhart v. United States, 546 U.S. 12, 19 (2005) (per curiam))]. She notes, however, that “[t]he Court has reserved whether mandatory claim-processing rules may ever be subject to equitable exceptions.” [n.5 (citing Hamer v. Neighborhood Housing Servs. of Chicago, 583 U.S. ___, ___, n. 3 (2017))].

Justice Ginsburg concludes: “Title VII’s charge-filing requirement is a processing rule, albeit a mandatory one, not a jurisdictional prescription delineating the adjudicatory authority of courts.”

 

 

 

June 3, 2019 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

SCOTUS Cert Grant on ERISA Pleading: Retirement Plans Committee of IBM v. Jander

Today the Supreme Court granted certiorari in Retirement Plans Committee of IBM v. Jander. The question presented relates to the Court’s decision in Fifth Third Bancorp v. Dudenhoeffer, 573 U.S. 409 (2014), on pleading ERISA claims that are based on a breach of the fiduciary duty of prudence:

Whether Fifth Third’s “more harm than good” pleading standard can be satisfied by generalized allegations that the harm of an inevitable disclosure of an alleged fraud generally increases over time.

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog and at the Supreme Court website.

 

 

June 3, 2019 in Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Tuesday, May 28, 2019

SCOTUS Decision on Removal by Counterclaim Defendants: Home Depot v. Jackson

Today the Supreme Court handed down a 5-4 decision in Home Depot U. S. A., Inc. v. Jackson. Justice Thomas authored the majority opinion, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. It begins:

The general removal statute, 28 U. S. C. §1441(a), provides that “any civil action” over which a federal court would have original jurisdiction may be removed to federal court by “the defendant or the defendants.” The Class Action Fairness Act of 2005 (CAFA) provides that “[a] class action” may be removed to federal court by “any defendant without the consent of all defendants.” 28 U. S. C. §1453(b). In this case, we address whether either provision allows a third-party counterclaim defendant—that is, a party brought into a lawsuit through a counterclaim filed by the original defendant—to remove the counterclaim filed against it. Because in the context of these removal provisions the term “defendant” refers only to the party sued by the original plaintiff, we conclude that neither provision allows such a third party to remove.

Justice Alito authored a dissenting opinion, joined by Chief Justice Roberts and Justices Gorsuch and Kavanaugh.

 

 

 

 

 

May 28, 2019 in Class Actions, Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

SCOTUS Cert Grant on Bivens: Hernandez v. Mesa Take 2

Today the Supreme Court granted certiorari in Hernandez v. Mesa, limited to the following question: Whether, when plaintiffs plausibly allege that a rogue federal law enforcement officer violated clearly established Fourth and Fifth Amendment rights for which there is no alternative legal remedy, the federal courts can and should recognize a damages claim under Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971)?

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog and at the Supreme Court website.

This is the case’s second trip to SCOTUS; earlier coverage of the 2017 decision is here.  

 

 

May 28, 2019 in Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Tuesday, May 21, 2019

SCOTUS Discusses Mootness in Yesterday’s Mission Product Holdings Decision

The main issue in yesterday’s Supreme Court decision in Mission Product Holdings, Inc. v. Tempnology, LLC involved the provision of the bankruptcy code regarding a debtor’s rejection of an executory contract. But there was an interesting exchange regarding mootness.

From Justice Kagan’s majority opinion:

Mission has presented a claim for money damages—essentially lost profits—arising from its inability to use the Coolcore trademarks between the time Tempnology rejected the licensing agreement and its scheduled expiration date. See Reply Brief 22, and n. 8. Such claims, if at all plausible, ensure a live controversy. See Memphis Light, Gas & Water Div. v. Craft, 436 U. S. 1, 8–9 (1978). For better or worse, nothing so shows a continuing stake in a dispute’s outcome as a demand for dollars and cents. See 13C C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure §3533.3, p. 2 (3d ed. 2008) (Wright & Miller) (“[A] case is not moot so long as a claim for monetary relief survives”). Ultimate recovery on that demand may be uncertain or even unlikely for any number of reasons, in this case as in others. But that is of no moment. If there is any chance of money changing hands, Mission’s suit remains live. See Chafin, 568 U. S., at 172.

Tempnology makes a flurry of arguments about why Mission is not entitled to damages, but none so clearly precludes recovery as to make this case moot.

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May 21, 2019 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Monday, May 20, 2019

SCOTUS Cert Grant in Ritzen Group

Today the Supreme Court granted certiorari in Ritzen Group, Inc. v. Jackson Masonry, LLC, which involves the federal district courts’ appellate jurisdiction over certain bankruptcy court orders The question presented is: “Whether an order denying a motion for relief from the automatic stay is a final order under 28 U.S.C. § 158(a)(1).”

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog and at the Supreme Court website.

 

May 20, 2019 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

SCOTUS Decision in Merck Sharp & Dohme Corp. v. Albrecht: Judges, Juries & Preemption

Today the Supreme Court handed down its decision in Merck Sharp & Dohme Corp. v. Albrecht. Justice Breyer authored the majority opinion, which was joined by Justices Thomas, Ginsburg, Sotomayor, Kagan, and Gorsuch. It begins:

When Congress enacted the Federal Food, Drug, and Cosmetic Act, ch. 675, 52 Stat. 1040, as amended, 21 U. S. C. §301 et seq., it charged the Food and Drug Administration with ensuring that prescription drugs are “safe for use under the conditions prescribed, recommended, or suggested” in the drug’s “labeling.” §355(d). When the FDA exercises this authority, it makes careful judgments about what warnings should appear on a drug’s label for the safety of consumers.

For that reason, we have previously held that “clear evidence” that the FDA would not have approved a change to the drug’s label pre-empts a claim, grounded in state law, that a drug manufacturer failed to warn consumers of the change-related risks associated with using the drug. See Wyeth v. Levine, 555 U. S. 555, 571 (2009). We here determine that this question of pre-emption is one for a judge to decide, not a jury. We also hold that “clear evidence” is evidence that shows the court that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning.

Justice Thomas joins the majority opinion but also writes a separate concurring opinion arguing that the preemption defense should fail as a matter of law. (The majority remands the case for the lower courts to address whether the plaintiff’s state-law tort claim is preempted in this case).

Justice Alito writes a concurring opinion, joined by Chief Justice Roberts and Justice Kavanaugh. Justice Alito agrees that this is a question of law to be decided by courts rather than juries, but he is “concerned that [the majority’s] discussion of the law and the facts may be misleading on remand.”

 

 

 

May 20, 2019 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Tuesday, May 14, 2019

SCOTUS Decision in Franchise Tax Board v. Hyatt: Nevada v. Hall is Overruled

Yesterday the Supreme Court issued a 5-4 decision in Franchise Tax Board of California v. Hyatt, covered earlier here. Justice Thomas’s majority opinion, joined by Chief Justice Roberts and Justices Alito, Gorsuch, and Kavanaugh, begins:

This case, now before us for the third time, requires us to decide whether the Constitution permits a State to be sued by a private party without its consent in the courts of a different State. We hold that it does not and overrule our decision to the contrary in Nevada v. Hall, 440 U. S. 410 (1979).

Justice Breyer authored the dissenting opinion, joined by Justices Ginsburg, Sotomayor, and Kagan.

 

May 14, 2019 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Tuesday, April 30, 2019

Jurisdictional or Nonjurisdictional: SCOTUS Cert Petition in Graviss

Calendared for the Supreme Court’s May 16th conference is an interesting cert petition in Graviss v. Department of Defense, which was recently featured as one of SCOTUSblog’s petitions of the week. Graviss involves 5 U.S.C. § 7703(b)(1)(A)’s 60-day deadline for federal employees to petition the Federal Circuit for review of a Merit Systems Protection Board decision. The Federal Circuit found that the 60-day deadline was a jurisdictional requirement.

The petition for certiorari presents the following questions:

1. Whether the 60-day period for seeking Federal Circuit review under 5 U.S.C. § 7703(b)(1)(A) sets a jurisdictional bar, as the panel majority held, or prescribes a claim-processing rule subject to exceptions such as forfeiture, as the dissenting judges below maintained.

2. Whether the Government forfeited its timeliness defense.

As readers well know, the Supreme Court has decided numerous cases over the last decade or so addressing the distinction between jurisdictional and nonjurisdictional requirements. 14 law professors signed onto this amicus brief, which argues that that the Federal Circuit misapplied the Court’s recent case law in concluding that the 60-day deadline was jurisdictional. Other amici supporting the petitioner include the American Federation of Government Employees, the Federal Circuit Bar Association, the National Veterans Legal Services Program, and the National Organization of Veterans’ Advocates.

As for the law professors’ brief, my personal thanks to the distinguished group of signatories who joined the brief, and to Stanley Blackmon and Scott Burnett Smith at Bradley Arant Boult Cummings LLP for their great work.

Stay tuned, everyone!

 

 

 

April 30, 2019 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Wednesday, April 24, 2019

SCOTUS decision in Lamps Plus v. Varela: interpreting ambiguous arbitration agreements to allow classwide arbitration

Today the Supreme Court issued a 5-4 decision in Lamps Plus, Inc. v. Varela. The majority opinion, authored by Chief Justice Roberts and joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh, addresses whether the Federal Arbitration Act (FAA) bars an order requiring class arbitration when an arbitration agreement is “ambiguous” about the availability of class arbitration. According to the majority, it does.

The Court first rules that § 16(a)(3) of the FAA permits appellate review when a party seeks an order compelling individual arbitration but the district court issues an order compelling arbitration on a classwide basis. It then decides that “[c]ourts may not infer from an ambiguous agreement that parties have consented to arbitrate on a classwide basis.” [Op. 12] The Court does not, however, address whether the availability of class arbitration is necessarily a question for the judge—rather than the arbitrator—to decide. Footnote 4 emphasizes that “the parties agreed that a court, not an arbitrator, should resolve the question about class arbitration.”

Justice Thomas joins the majority opinion but authors a brief concurring opinion. There were four dissenting opinions: one by Justice Ginsburg, which was joined by Justices Breyer and Sotomayor; one by Justice Breyer; one by Justice Sotomayor; and one by Justice Kagan, which was joined by Justices Ginsburg and Breyer and partially joined by Justice Sotomayor.

Download Lamps Plus v Varela

 

 

 

 

 

 

April 24, 2019 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Tuesday, March 26, 2019

SCOTUS Decision in Republic of Sudan v. Harrison: Service of Process on a Foreign State under the FSIA

Today the Supreme Court issued an 8-1 decision in Republic of Sudan v. Harrison (covered earlier here). Justice Alito’s majority opinion begins:

This case concerns the requirements applicable to a particular method of serving civil process on a foreign state. Under the Foreign Sovereign Immunities Act of 1976 (FSIA), a foreign state may be served by means of a mailing that is “addressed and dispatched . . . to the head of the ministry of foreign affairs of the foreign state concerned.” 28 U. S. C. §1608(a)(3). The question now before us is whether this provision is satisfied when a service packet that names the foreign minister is mailed to the foreign state’s embassy in the United States. We hold that it is not. Most naturally read, §1608(a)(3) requires that a mailing be sent directly to the foreign minister’s office in the minister’s home country.

Justice Thomas dissented, writing: “I would hold that respondents complied with the FSIA when they addressed and dispatched a service packet to Sudan’s Minister of Foreign Affairs at Sudan’s Embassy in Washington, D. C.”

 

 

March 26, 2019 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Steinman on Burbank & Wolff on Erie, Federal Common Law, and the American Pipe Rule

Now on the Courts Law section of JOTWELL is my essay, When American Pipe Met Erie. I review a recent article by Steve Burbank and Tobias Wolff, Class Actions, Statutes of Limitations and Repose, and Federal Common Law, 167 U. Pa. L. Rev. 1 (2018).

 

 

March 26, 2019 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Recent Scholarship, Supreme Court Cases, Weblogs | Permalink | Comments (0)

Wednesday, March 20, 2019

SCOTUS Decision in Frank v. Gaos

Today the Supreme Court issued its decision in Frank v. Gaos (covered earlier here). The Court had initially granted certiorari to decide “[w]hether, or in what circumstances, a cy pres award of class action proceeds that provides no direct relief to class members supports class certification and comports with the requirement that a settlement binding class members must be ‘fair, reasonable, and adequate.’” Following oral argument, however, the Court ordered supplemental briefing on whether any plaintiff had Article III standing under the Supreme Court’s 2016 decision in Spokeo v. Robins.

Today’s per curiam opinion remands the case for the lower courts to consider the standing question:

After reviewing the supplemental briefs, we conclude that the case should be remanded for the courts below to address the plaintiffs’ standing in light of Spokeo. The supplemental briefs filed in response to our order raise a wide variety of legal and factual issues not addressed in the merits briefing before us or at oral argument. We “are a court of review, not of first view.” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005). Resolution of the standing question should take place in the District Court or the Ninth Circuit in the first instance. We therefore vacate and remand for further proceedings. Nothing in our opinion should be interpreted as expressing a view on any particular resolution of the standing question.

Justice Thomas dissented. He would have found that the plaintiffs’ allegations were sufficient to establish standing but that “the class action should not have been certified, and the settlement should not have been approved.”

 

 

 

March 20, 2019 in Class Actions, Federal Courts, Recent Decisions, Standing, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Monday, March 4, 2019

Ten Years of Iqbal: Perspectives on Policy, Procedure, and Substance (Symposium at Cardozo Law School, March 15, 2019)

On Friday, March 15, 2019, the Benjamin N. Cardozo School of Law, Cardozo Law Review, and The Floersheimer Center for Constitutional Democracy are hosting a symposium entitled “Ten Years of Iqbal: Perspectives on Policy, Procedure, and Substance.”

You can find all the details – and register for the symposium (it’s free) – here. Come join us!

From the announcement:

An esteemed group of experts, including the lawyers who argued both sides of the Iqbal case, and leading legal scholars, will examine the decision’s influence on both procedural and substantive law. The conference will examine pleading doctrine, pleading practice, approaches to federal rulemaking and substantive areas of law including national security and civil rights.

The symposium keynote will be given by Arthur R. Miller, Professor at NYU Law, former Bruce Bromley Professor of Law at Harvard Law, and the nation's leading scholar in the field of civil procedure.

Confirmed panelists include:

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March 4, 2019 in Conferences/Symposia, Federal Rules of Civil Procedure, Supreme Court Cases, Twombly/Iqbal | Permalink | Comments (0)

Wednesday, February 27, 2019

SCOTUS: Rule 23(f)’s 14-day deadline for class-certification appeals is not subject to equitable tolling

Yesterday the Supreme Court issued a unanimous decision in Nutraceutical Corp. v. Lambert, which involves Rule 23(f)’s 14-day deadline for seeking permission to appeal a district court’s class-certification ruling.

In Justice Sotomayor’s opinion, the Court makes clear that the 14-day deadline is not jurisdictional, which means that it “can be waived or forfeited.” [Slip op. at 3-4] Nonetheless, the Court found that it is not subject to equitable tolling:

“Whether a rule precludes equitable tolling turns not on its jurisdictional character but rather on whether the text of the rule leaves room for such flexibility. Here, the governing rules speak directly to the issue of Rule 23(f)’s flexibility and make clear that its deadline is not subject to equitable tolling.” [Slip op. at 4]

Howard Wasserman has a more detailed recap at SCOTUSblog.

 

 

February 27, 2019 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Tuesday, February 26, 2019

SCOTUS Cert Grant on FDCPA Statute of Limitations

Yesterday the Supreme Court granted certiorari in granted certiorari in Rotkiske v. Klemm. Here is the question presented:

Whether the “discovery rule” applies to toll the one (1) year statute of limitations under the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et seq., as the Fourth and Ninth Circuits have held but the Third Circuit (sua sponte en banc) has held contrarily.

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog and at the Supreme Court website.

 

 

 

February 26, 2019 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Monday, February 25, 2019

SCOTUS Decision on Counting the Votes of Federal Judges Who Die Before a Decision Is Issued

Today the Supreme Court decided Yovino v. Rizo, issuing a per curiam opinion that begins:

A judge on the United States Court of Appeals for the Ninth Circuit, the Honorable Stephen Reinhardt, died on March 29, 2018, but the Ninth Circuit counted his vote in cases decided after that date. In the present case, Judge Reinhardt was listed as the author of an en banc decision issued on April 9, 2018, 11 days after he passed away. By counting Judge Reinhardt’s vote, the court deemed Judge Reinhardt’s opinion to be a majority opinion, which means that it constitutes a precedent that all future Ninth Circuit panels must follow. See United States v. Caperna, 251 F. 3d 827, 831, n. 2 (2001). Without Judge Reinhardt’s vote, the opinion attributed to him would have been approved by only 5 of the 10 members of the en banc panel who were still living when the decision was filed. Although the other five living judges concurred in the judgment, they did so for different reasons. The upshot is that Judge Reinhardt’s vote made a difference. Was that lawful?

The answer is no. The opinion concludes:

Because Judge Reinhardt was no longer a judge at the time when the en banc decision in this case was filed, the Ninth Circuit erred in counting him as a member of the majority. That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death. But federal judges are appointed for life, not for eternity.

We therefore grant the petition for certiorari, vacate the judgment of the United States Court of Appeals for the Ninth Circuit, and remand the case for further proceedings consistent with this opinion.

 

 

 

February 25, 2019 in Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Thursday, January 17, 2019

Burbank & Wolff on American Pipe, Class Actions & Federal Common Law

Steve Burbank and Tobias Wolff have published Class Actions, Statutes of Limitations and Repose, and Federal Common Law, 167 U. Pa. L. Rev. 1 (2018). Here’s the abstract:

After more than three decades during which it gave the issue scant attention, the Supreme Court has again made the American Pipe doctrine an active part of its docket. American Pipe addresses the tolling of statutes of limitations in federal class action litigation. When plaintiffs file a putative class action in federal court and class certification is denied, absent members of the putative class may wish to pursue their claims in some kind of further proceeding. If the statute of limitations would otherwise have expired while the class certification issue was being resolved, these claimants may need the benefit of a tolling rule. The same need can arise for those who wish to opt out of a certified class action. American Pipe and its progeny provide such a tolling rule in some circumstances, but many unanswered questions remain about when the doctrine is available.

In June 2017, the Court decided CalPERS v. ANZ Securities, holding that American Pipe tolling was foreclosed to a class member who opted out of a certified class in an action brought to enforce a federal statute (the Securities Act of 1933) that contained what the Court labeled a “statute of repose.” In June 2018, the Court decided Resh v. China Agritech, which held that American Pipe tolling is not available when absent members of a putative class file another class action following the denial of certification in the first action rather than pursuing their claims individually in subsequent proceedings.

In this Article we develop a comprehensive theoretical and doctrinal framework for the American Pipe doctrine. Building on earlier work, we demonstrate that American Pipe tolling is a federal common-law rule that aims to carry into effect the provisions and policies of Federal Rule of Civil Procedure 23, the federal class action device. Contrary to the Court’s assertion in CalPERS, American Pipe is not an “equitable tolling doctrine.” Neither is it the product of a direct mandate in Rule 23, which is the source of authority, not the source of the rule. Having clarified the status of American Pipe tolling as federal common law, we explain the basis on which the doctrine operates across jurisdictions, binding subsequent actions in both federal and state court. We argue that the doctrine applies whether the initial action in federal court was based on a federal or state cause of action—a question that has produced disagreement among the lower federal courts. And we situate American Pipe within the framework of the Court’s Erie jurisprudence, explaining how the doctrine should operate when the putative class action was in federal court based on diversity jurisdiction and the courts of the state in which it was filed would apply a different rule. Finally, we discuss how CalPERS should have been decided if the Court had recognized the true nature of the American Pipe rule and if it had engaged the legislative history of the Securities Act rather than relying on labels.

 

 

 

 

January 17, 2019 in Class Actions, Federal Courts, Recent Scholarship, Supreme Court Cases | Permalink | Comments (0)