I’m out of town this week, but I would be remiss if didn’t at least alert readers to the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum, holding that the presumption against extraterritorial jurisdiction of the US Courts applies to human rights cases files under the Alien Tort Statute. This decision continues a trend in the Court over the past few years of limiting jurisdiction over extraterritorial disputes. I have argued that a continuation of this trend will hasten the expansion of class actions and other collective dispute resolutions in jurisdictions outside the United States. Now we shall see…
Today, the Supreme Court issued its ruling in Genesis Healthcare Corp. v. Symczyk, No. 11–1059, which addresses the practice of “picking off” a named plaintiff in a FLSA collective action by making a full offer of judgment under Rule 68 for the amount of the named plaintiffs’ claim. In a 5-4 majority opinion authored by Justice Thomas, the Court held that the relation back doctrine does not apply to save the collective action from mootness simply because the named plaintiff also sought relief on behalf of others. The majority distinguished the case from other decisions applying the relation back doctrine in the Rule 23 context after class certification had been denied, pointing out that a certified class under Rule 23 has an independent legal existence from the named plaintiff. However, the reasoning of the majority’s decision in Genesis Healthcare Corp. could potentially be applied to support the conclusion that an unaccepted offer of judgment moots even a Rule 23 class action if the offer is accepted or expires prior to a ruling on a motion for class certification one way or the other.
The majority’s decision comes with a major caveat. The majority declined to address the issue whether a non-accepted offer of judgment actually moots an individual’s claim, despite recognizing a split in the circuits on that issue. This prompted the following commentary in Justice Kagan’s dissent:
The decision would turn out to be the most one-off of one-offs, explaining only what (the majority thinks) should happen to a proposed collective FLSA action when something that in fact never happens to an individual FLSA claim is errantly thought to have done so. That is the case here, for reasons I’ll describe. Feel free to relegate the majority’s decision to the furthest reaches of your mind: The situation it addresses should never again arise. . . . [T]he individual claims in such cases will never become moot, and a court will therefore never need to reach the issue the majority resolves. The majority’s decision is fit for nothing: Aside from getting this case wrong, it serves only to address a make-believe problem.
Whether Justice Kagan’s cheeky prediction turns out to be prophetic will be up to the lower courts, who are left to decide the underlying question of mootness. In the short-term, there is little doubt that the Genesis Healthcare decision will prompt a rash of offers of judgment in both FLSA cases and class actions.
Posted in Supreme Court Decisions | Tagged class action, class certification, collective action, conditional certification, FLSA, kagan, opt in, opt out, picking off, rule 23, Supreme Court, thomas | 1 Comment »
Editor’s note: Guest contributor David Williamson authored the following commentary on recent developments in the availability of legal aid in the UK. Mr. Williamson is an experienced legal content writer and works for Coles Solicitors. Although the article does not touch on litigation funding in representative actions specifically, the availability of legal aid and other sources of litigation funding is an important topic related to ongoing debate on the need for development of class actions and other representative and multi-party dispute resolution mechanisms in jurisdictions outside of the US. Many thanks to Mr. Williamson for his contribution.
Post Legal Aid Reform: Observations since its Passing
As of the beginning of April this year, the UK ushered in sweeping changes to the sixty-year-old Legal Aid legislation; implementing heavy cut-backs and making eligibility stricter. However, how has the UK legal climate changed since its passing? Heated dialogue seemed to circulate the issue for many months, with many claiming the changes will cripple the courts, and others arguing that they will do wonders for the British economic deficit. However, now the issue has settled down it is prime time to look at what exactly has occurred and what legacy this may leave on the broader UK legal climate.
Legal Aid Reform: In a Nutshell:
If you’re not from the UK, the chances are you are not entirely familiar the Legal Aid reforms that are holding the spotlight during this discussion. The reforms, which cut public spending by up to £350m, meant that to be eligible to claim Legal Aid, one had to prove a disposable income of around £1,000, whereas before the figure stood at a much more generous £8,000. Therefore, with such a massive decrease in the amount one needs to have saved to be eligible, the reforms are sure to have affected thousands of claimants. In fact, the government’s own figures stated up to 623,000 people could miss out on financial assistance in court, with the less well-off, working class families being the hardest hit. The areas of law targeted by the reforms were mainly clinical negligence claims, educational and employment law, immigration, private family law, divorce and custody battles and debt/housing issues.
Increase in Self Representation?
Now, though – 2 or so weeks after the cuts, what seems to have occurred as a result? Well, recently a report into legal trends and how the court process is operating since the reforms found out a curiously novel result. The answer: an increase in people representing themselves in court.
In fact, this study comes hand in hand with a release of an ‘idiots guide’ to legal representation, issued by the Bar Council. Within, the guide stipulates when one should speak, when one should stand, correct salutations and a rough guide to how to address the court. In fact, in the rather tongue in cheek guide, specific attention was paid on people not behaving like court-room lawyers they may have seen on TV. Perhaps it’s a little early to analyse the statistics thus far as to whether there has been any real rise in this sort of self-representation, however, it is certainly something to keep an eye on as it is a very real (and for many people – the only real) alternative to Legal Aid.
An alternative model of the British Legal Aid bill has been in effect in the USA for a long time now, and it is proving to be highly successful. Pro Bono legal help, especially in places like New York, ensure that solicitors pledge at least 50 hours per year to Pro Bono legal cases. With this in mind, could it not be obvious to apply this same model to the UK legal climate now there exists this apparent vacuum for Legal Aid?
Of course, this seems like the most sensible solution but, unfortunately, it doesn’t seem like the UK legal climate has properly taken hold on this front as of yet. It is only early days so perhaps this will soon change, but thus far there have been little developments on this front. However, that being said, there is – and have been for some time – many highly qualified solicitors in the UK willing to carry out Pro Bono work, but it would seem they are greatly understaffed and rather poorly spread out across the country. A quick poll revealed that London benefits from a reassuring 59 free legal advice clinics, where as there are only 29 in the whole of the North of England, and only 3 in all of Wales.
A rather novel argument has recently been made for the case of law students and those currently in training or entry-level positions. This argument lays an obligation on these young solicitors to carry out an as-yet undetermined amount of Pro Bono work in their spare time, giving help to the reported 650,000 cases that the current system cannot support. This also raises moral questions, though; such as is it fair to make it compulsory for student who are perhaps under qualified and inexperienced take on cases which can have dire consequences on those in party to the case? And, is it fair to force these already pressured individuals to give up their free time to work for no money?
Overall, it would seem the UK legal climate has not crippled under the changes to Legal Aid legislation. The assumptions of many nay-Sayers seem to have been premature and instead of the poorest being denied all forms of legal representation, a new dialogue has emerged prompting creative changes to age-old problems. Of course, those who can afford pricey legal representation still win a much greater number of cases than those who can only afford cheaper or subsidised help. This has always been the case and the results thus far seem to suggest the Legal Aid reform in the UK hasn’t altered this as drastically as once thought.
My article for the University of Denver Law Review’s Online Edition entitled Statutory Penalties and Class Actions: Social Justice or Legalized Extortion? was posted today. The article discusses potential reforms to address the problem of class actions for statutory penalties giving rise to potentially annihilating liability in cases involving little or no actual harm. Please check it out. While you’re there, check out some of the other excellent content on a wide variety of legal topics that the DU Law Review has to offer in its online supplement to its regular print publication.
Posted in Articles, Commentary, Data Privacy Class Actions | Tagged annihilating liability, bankrupting, class action reform, cmia, data breach, data privacy, FACTA, fcra, nominal damages, privacy class action, statutory penalties, statutory penalty, TCPA | Leave a Comment »
Work commitments have prevented me from posting over the past week, but I wanted to take the opportunity to point out that there have been some notable developments in the privacy class action area over the past week. Judy Selby covered these developments in a recent blog post for the BakerHostetler Class Action Defense and Data Privacy Monitor blogs. Selby’s post, titled Hannaford v. comScore – Up and Down Results for Privacy Class Action Defendants, compares and contrasts two recent decisions, one granting and one denying class certification, in privacy cases.
Posted in Class Action Decisions, Data Privacy Class Actions | Tagged class action, class certification, comscore, data privacy, hannaford, predominance, privacy, privacy class action, selby | Leave a Comment »
The United States Supreme Court issued its decision in Comcast Corp. v. Behrend, No. 11-864 today. In a 5-4 decision, the Court held that the class of cable subscribers had been improperly certified. Justice Scalia, writing for the majority, reasoned that the expert testimony offered by the plaintiff to show that antitrust damages were capable of class-wide proof addressed alleged damages that did not logically flow from the plaintiff’s theory of class-wide liability. The majority held that the trial court had erred by refusing to consider questions concerning the expert testimony on damages that might overlap with the “merits,” while the Third Circuit had erred by accepting the plaintiffs’ contention that it had a class-wide theory of damages through expert testimony without actually scrutinizing the factual basis for that contention:
The Court of Appeals simply concluded that respondents “provided a method to measure and quantify damages on a classwide basis,” finding it unnecessary to decide “whether the methodology [was] a just and reasonable inference or speculative.” 655 F. 3d, at 206. Under that logic, at the class-certification stage any method of measurement is acceptable so long as it can be applied classwide, no matter how arbitrary the measurements may be. Such a proposition would reduce Rule 23(b)(3)’s predominance requirement to a nullity.
The dissenting Justices would have dismissed the writ of certiorari as having been improvidently granted. The dissent’s criticism of the majority’s holding has more to do with the procedural posture of the case and the methodology used by the majority in reaching its factual conclusions than with the legal class certification concepts underlying the majority’s reasoning. In particular, the dissent faulted the majority for having changed the issue on review after the conclusion of briefing and took issue with the majority’s analysis of the factual basis for the expert’s opinions.
Posted in Supreme Court Decisions, rule 23, Class Action Decisions, Antitrust Class Actions | Tagged Supreme Court, predominance, rigorous analysis, scotus, expert testimony, scalia, daubert, ginsburg, breyer, expert witness, classwide proof, regression, behrend, comcast, antitrust impact, scrutiny, scrutinize, classwide impact, class-wide, classwide, methodology | 2 Comments »
The Supreme Court issued its first-ever decision interpreting the Class Action Fairness Act (CAFA) today, and its holding strengthens defendants’ right to a federal forum in class actions.
The question presented in Standard Fire Insurance Co. v. Knowles, No. 11-1450, slip op. (U.S., Mar. 19, 2012) was a simple one: can a plaintiff avoid federal jurisdiction under CAFA by stipulating to less than $5 million in damages on behalf of the putative class? The Court’s unanimous answer was no, and its reasoning is also simple:
Stipulations must be binding . . . [and] a plaintiff who files a proposed class action cannot legally bind members of the proposed class before the class is certified.
Slip op. at 3-4.
Does Standard Fire mean the end of any debate about the federal courts as a forum for class actions? Probably not. Justice Breyer’s well-reasoned opinion makes the issue sound like a no-brainer, but this is an issue that had been far from settled in the lower courts. The fact that the Supreme Court had to intervene on this issue is in part a symptom of a lingering antagonism by many lower federal court judges toward diversity jurisdiction. The ruling is unlikely to change the predisposition of some federal judges to look for ways to clear their dockets by remanding diversity cases to the state courts. Although the effectiveness of this particular method for avoiding CAFA jurisdiction is now settled in defendants’ favor, that is not to say that other tactics for avoiding federal jurisdiction in class actions won’t succeed in the future.
Posted in Class Action Decisions, Class Action Fairness Act, Supreme Court Decisions | Tagged $4, $5, 000, 1332, 5 million, 999, amount in controversy, breyer, CAFA, class action, Class Action Fairness Act, diversity, knowles, scotus, standard fire, Supreme Court | 1 Comment »