Tuesday, May 19, 2015
Adam Zimmerman has written a really interesting post on the legacy of the 9/11 Victim Compensation Fund and the subsequent litigation over the 9/11 attack. He focuses on the rise of databases and registries designed to improve the disposition of individual claims. The post can be found here, and Adam will continue to blog at Prawfsblawg for the rest of the month.
Monday, May 18, 2015
The Supreme Court has just granted cert in Campbell-Ewald Company v. Gomez on the following questions, the first two being relevant to an important ongoing circuit split in class action law:
(1) Whether a case becomes moot, and thus beyond the judicial power of Article III, when the plaintiff receives an offer of complete relief on his claim; (2) whether the answer to the first question is any different when the plaintiff has asserted a class claim under Federal Rule of Civil Procedure 23, but receives an offer of complete relief before any class is certified; and (3) whether the doctrine of derivative sovereign immunity recognized in Yearsley v. W.A. Ross Construction Co., for government contractors is restricted to claims arising out of property damage caused by public works projects.
You can find more on SCOTUSBLOG. It used to be that the courts understood that a person purporting to represent a class had a special duty to that class - an ethical duty - to pursue the claims with fidelity to the other class members. This is why courts ask whether a class member is typical of other class members and adequate to represent them. A class member who is offered a personal settlement and refuses it so that he can represent his fellows is following through on that duty to the rest of the class members. It also used to be that the courts appreciated that some people bring suits for vindication or to change the law, even if they will only receive nominal damages. An offer of settlement does not achieve these things - it cannot achieve them - because vindication and legal effect requires a judge to issue a judgment, which only a court can issue. In other words, an offer of full compensation is not full relief, because it does not include a judgment. Most people still prefer a guarantee of compensation to an uncertain outcome in a judgment, but that does not mean that they are required to accept something less than a court issued judgment about their case. The question of mootness posed in Gomez does not require looking at Rule 23, but Rule 23's requirements and the due process requirements of class action caution against a mootness ruling in Gomez that would vitiate the duty that a class representative owes his fellow class members. This is because to find that the case can be mooted by a mere offer of settlement would require an inference that the class representative may accept that offer with impunity because he owes no duty to continue with the case on behalf of others after he has been offered full monetary relief.
Thursday, May 14, 2015
Via Patricia W. Moore at the Civil Procedure and Federal Courts Blog, Brooke Coleman has written a post on Prawfsblawg on the "conceptual sketches" provided by the Rules Advisory Committee concerning proposed amendments to Rule 23. The post can be found here, and Coleman plans to discuss the sketches further in a future blog post.
It is also worth noting that Coleman, Liz Porter and David Marcus have organized the First Annual Civil Procedure Workshop, where members of the Class Action Rules Subcommittee of the Rules Advisory Committee will appear to discuss the proposed Rule 23 amendments. The workshop looks fantastic and is definitely worth attending!
Sunday, May 10, 2015
There is an interesting column in Bloomberg Business about the ongoing Chevron/Ecuador litigation. It discusses a pending appeal before the Second Circuit over Chevron's use of civil RICO to enjoin the enforcement of the Ecuadorian judgment against them. The column discusses, albeit briefly, the possible ramifications of a ruling allowing defendants to enjoin judgments by alleging that the plaintiffs' attorneys engaged in a scheme of extortion in violation of RICO. For a rundown of the oral argument, which was conducted on April 20th, check out this post here.
Friday, May 8, 2015
On February 27, 2015, the Committee on the Judiciary, Subcommittee on the Constitution and Civil Justice, held a hearing on the state of class actions post-CAFA. The witnesses' lack of ideological diversity (with Professor Moore as a single exception) is extremely troubling. The committee heard testimony from: Andrew Pincus (Partner, Mayer Brown, U.S. Chamber Institute for Legal Reform), John Parker Sweeney (President, DRI - the Voice of the Defense Bar), Jessica D. Miller (Partner, Skadden Arps), and Professor Patricia Moore (St. Thomas Univ. School of Law).
I want to point out an interesting article by Malcolm Gladwell in the New Yorker that looks back at the litigation surrounding the Ford Pinto case. Although the article talks about the criminal prosecution and some of the legal issues briefly, it focuses on the engineers in the case and their ex ante decisions to issue recalls. In my view, the ex ante decisions of engineers, and their inherent difficulty, do not get nearly enough attention in the media, even though the defendant's liability in mass tort cases always hinges on these decisions. A good read overall.
Wednesday, May 6, 2015
Yale Law Journal is publishing a note by Geoffrey Shaw on the latest hot topic in class litigation, class ascertainability. Here's the SSRN abstract:
In recent years, federal courts have been enforcing an “implicit” requirement for class certification, in addition to the explicit requirements established in Rule 23 of the Federal Rules of Civil Procedure. The ascertainability requirement insists that a proposed class be defined in “objective” terms and that an “administratively feasible” method exist for identifying individual class members and ascertaining their class membership. This requirement has generated considerable controversy and prevented the certification of many proposed classes. The requirement has taken a particular toll on consumer class actions, where potential class members are often unknown to the representative plaintiffs, often lack documentary proof of their injury, and often do not even know they have a legal claim at all.
This Note explores the ascertainability requirement’s conceptual foundations. The Note first evaluates the affirmative case for the requirement and finds it unpersuasive. At most, Rule 23 implicitly requires something much more modest: that classes enjoy what I call a minimally clear definition. The Note then argues that the ascertainability requirement frustrates the purposes of Rule 23 by pushing out of court the kind of cases Rule 23 was designed to bring into court. Finally, the Note proposes that courts abandon the ascertainability requirement and simply perform a rigorous analysis of Rule 23’s explicit requirements. This unremarkable approach to class certification better reflects what the Rule says and better advances what the Rule is for.
Our friends at the FJC and Administrative Office of the U.S. Courts, Emery Lee, Catherine Borden, Margaret Williams, and Kevin Scott have posted their latest empirical analysis of multidistrict litigation on SSRN. Here's the abstract:
Following the judiciary's experience with aggregate litigation in the 1960s, Congress established a procedure for the transfer of related cases to a single district court for coordinated pretrial proceedings. Originally designed to achieve efficiencies associated with coordinated discovery, the multidistrict litigation (MDL) process evolved from a rather modest starting point to become a central part of aggregate litigation in the federal courts today. Despite its importance, however, there is little empirical research on the MDL process. This article seeks to fill this gap in the empirical literature by addressing a few central questions about the work of the Judicial Panel on Multidistrict Litigation (Panel). Using a unique database, we examine how that body decided motions to centralize multidistrict litigation. We find, most importantly, that the Panel became more likely to order centralization of proceedings over time, after controlling for other factors. That trend is not, however, apparent in the most recent years' data. We also find, all else equal, that the Panel is more likely to centralize a proceeding including class allegations, and more likely to centralize proceedings raising certain kinds of claims.