Feeds:
Posts
Comments

Archive for the ‘Supreme Court Decisions’ Category

I’ve never used this blog as a platform for political commentary, but these are troubled times.  I believe that it is vital for as many of us as possible to stand on principle and not let the current political climate devolve into something much worse.  I waited with a feeling of dread in the minutes leading up to yesterday’s announcement of President Trump’s Supreme Court nominee.  I don’t think my unease was irrational given Trump’s already proven track record of nominating candidates to various cabinet positions who are either demonstrably unqualified, clearly bent on dismantling the institutions they are being appointed to serve, or both.  But I breathed a sigh of relief when Tenth Circuit Judge Neil Gorsuch was announced.  A noted conservative jurist, member of the Federalist Society, and avowed fan of the late Justice Scalia, Judge Gorsuch would not have been a surprise as the nominee of any more mainstream Republican, but with Trump’s track record so far, the nomination of Senator Ted Cruz or even Alabama Supreme Court Justice Roy Moore was not outside the realm of possibility.

A quick poll of reactions from members of Congress was predictable.   Many Republicans immediately hailed the selection of a solidly “conservative” selection in ways that made clear they knew little about the nominee, while many democrats were already vowing to fight to the death to block it, as Republicans had done last year with the nomination of Judge Merrick Garland.  Almost instantaneously, I received an email from the Democratic Congressional Campaign Committee asking me to donate money to help fight the “hyper-conservative” that Trump had just appointed.   Thankfully, a few took a more measured approach, including Colorado Senator Michael Bennett, who congratulated his fellow Coloradan and said he looked forward to reviewing the nominee’s record, according to the Denver Post.  Still, Democratic Senators are under pressure from progressives to move to block the nomination.

As a lifelong Democrat, I certainly do not support approval of the nominee without fully vetting him through the advise and consent process appropriate for a lifetime appointment of this magnitude.  However, I do think it would be wrong to filibuster or boycott the confirmation process, for several reasons.

First, Judge Gorsuch appears eminently qualified for the Supreme Court.  Although we hail from the same state, I don’t have the pleasure of knowing Judge Gorsuch personally, nor have I appeared before him.  However, members of the Denver legal community whom I respect have unanimously praised his intelligence, legal acumen, fair-mindedness, lack of political agenda, and most notably–given the President who nominated him–his temperament.  Even the most left-leaning lawyers who know or have appeared before him consider him qualified.  Leading civil rights lawyer David Lane was quoted in an AP article authored by Nicholas Riccardi as saying:

He is a very, very smart man. His leanings are very conservative, but he’s qualified to be on the Supreme Court . . . . I don’t know that Judge Gorsuch has a political agenda and he is sincere and honest and believes what he writes.

One of Denver’s leading plaintiff’s-side immigration lawyers, Jeff Joseph, went further in a post on Facebook just after the selection was announced:

I have appeared before Judge Gorsuch in the 10th Circuit. I have lost every time. But…this is a really good pick. Unlike every other decision coming out of the administration this week, this pick shows real deliberation and vetting. Yes, I obviously would have liked someone more left leaning, but Gorsuch is a real jurist. He believes in separation of powers and will check abuse of government power. More importantly, he is against Chevron and Brand X deference. When statues are vague he will not be willing to cowtow to the agency interpretation. He believes, rightly, that it is the role of the court to fill in the gaps. Bravo. This is a smart choice.

Former Colorado Supreme Court Justice Rebecca Love Kourlis, a democratic appointee who now heads the Institute for the Advancement of the American Legal System at the University of Denver, a non-profit think tank focusing on judicial independence and access to justice, was also quoted in Riccardi’s article as applauding Judge Gorsuch’s commitment to simplifying court procedure and making access to the courts more affordable and accessible.

Second, obstructionism on this nomination could be political suicide for Democrats.  If we’ve learned anything from the outcome of the Presidential election, it’s that a large portion of America has completely lost faith in our Government institutions.  In the face of any reasonable move by Trump, obstructionist behavior will not help endear Democrats to the voters they lost in the last election.  And for those who would say that the nomination should be blocked as an act of retribution, get over it.  Our candidate didn’t win, and the result of that is that the other party gets to pick the next Supreme Court Justice. Republicans took a very big gamble in blocking Judge Garland’s nomination and got away with it, probably not because voters liked it, but because voters ended up being so fed up with the status quo that the decided to give the “drain the swamp” candidate a try.  Democrats will not be so lucky here.  We need to accept reality and take the high ground.  At worst for Democrats, Gorsuch represents a return to the status quo on the Court before Justice Scalia’s unexpected death.  At best, Justice Gorsuch may turn out to be an independent thinker who becomes a surprise champion for civil rights, among other positive judicial reforms.  By all accounts, Judge Gorsuch is an independent thinker who admires Justice Scalia and shares his textualist philosophy but has a mind and unique judicial philosophy of his own.  And, according to those who know him, he has one trait that Justice Scalia often lacked, a tactful and fair-minded judicial temperament.

Third, and most importantly to me, a nominee with Judge Gorsuch’s track record provides our best insurance against the threat of Trump authoritarianism.  I don’t think it’s an overstatement to say that in just one week, Trump’s nationalist agenda, false propaganda, attacks on the press, censorship, and bullying tactics have already created the most significant threat to our nation’s Constitutional foundations since Watergate, a sentiment already echoed even by at least one prominent conservative commentator.  A review of his opinions makes clear that Judge Gorsuch is highly principled and a strong believer in the separation of powers and will not tolerate attempts by the executive branch to usurp or ignore legislative and judicial functions.  The best example of this is his concurrence to his own majority opinion in Gutierrez-Brizuela v. Lynch, where he goes to great lengths in describing the dangers of excessive executive power.  Judge Gorsuch also has a consistent track record in supporting the Bill of Rights, including checks on police power and government infringement and free exercise, regardless of religious affiliation.  At a time where Trump’s administration threatens to rule by executive decree, stifle public dissent, and ignore judicial orders, I believe that above all else, we need a Supreme Court that will stand up the constitutional doctrine of strong separation of powers and has an unwavering respect for the Bill of Rights.  Of course, as a textualist, there’s a good chance he disfavors the “penumbra” of rights implied by the Bill of Rights that would include a fundamental right to reproductive privacy, and I know this is a dealbreaker to many liberals.  But again, we aren’t in a position to choose, and this only means that at worst, he will preserve the status quo on the Court.  Given the alternatives that Trump could bring forward, I’ll take a Justice who will champion fundamental rights like free speech, freedom of the press, free expression, and freedom from unreasonable searches, seizures, and excessive force and whose antagonism to other fundamental rights like privacy, if he has antagonism at all, is based on a principled philosophy of limiting the Constitution to what the founders intended, rather than some religious, moral, or politically-motivated ideology.

Those who know me know I am no supporter of Trump or his agenda.  But perhaps in making the selection of a respected jurist rather than a right-wing hack, he is extending the olive branch to tell America that will respect the judiciary and the rule of law.  Or maybe he just didn’t bother to vet Judge Gorsuch enough to understand how antithetical his constitutional philosophy would be to Trump’s apparent efforts to ram through his policy agenda using unchecked executive power.  Whatever the reason, block Judge Gorsuch, and you are likely to get a nominee who may be less principled in conservative jurisprudence, but who is also less principled in promoting the rule of law itself.

Read Full Post »

The United States Supreme Court issued its highly-anticipated decision this morning in Spokeo, Inc. v. Robins, No. 13-1339, a case that many commentators have been following as a potential barometer for the Court’s treatment of consumer and class action issues following the death of Justice Antonin Scalia.  As it turns out, Justice Scalia’s absence did not impact the outcome of the case, which was decided by a 6-2 majority (though there is of course no way of knowing how Justice Scalia’s participation might have impacted the rationale).

The Petition for Certiorari had originally been granted to answer the question “whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.”  http://www.supremecourt.gov/qp/13-01339qp.pdf (Emphasis added).

The majority opinion, authored by Justice Alito, answered this question in the negative, holding that a plaintiff must establish “concrete” harm in order to have standing to pursue a statutory cause of action in federal court.  However, the interesting part of the opinion is the Court’s analysis of what may suffice as “concrete” harm.  In particular, the Court held, Congress may identify “intangible” harms and elevate those harms to the status of concrete injuries supporting Article III standing.  Examples of these intangible harms cited in the opinion include reputational harms suffered for common law torts, like libel and slander, that are difficult to measure, as well as other intangible public harms, such as voters’ inability to access public information.

After reiterating that a plaintiff seeking relief for a statutory violation must prove a harm that is both particularized and concrete and my not simply rely on a procedural violation of the statute, the Court did not go on to evaluate whether Robins himself had demonstrated a concrete injury flowing from the Fair Credit Reporting Act violations alleged in the case before the Court.  Instead, the Court remanded the case to the Ninth Circuit Court of Appeals to perform that analysis, making clear that “[w]e take no position as to whether the NinthCircuit’s ultimate conclusion—that Robins adequately alleged an injury in fact—was correct.”

My own early take on the decision is that while the opinion does not set definitive rules on the types of intangible injuries that are sufficiently concrete to support Article III standing, the opinion goes a long way towards solidifying and clarifying the analytical framework under which statutory standing issues, and Article III standing issues more generally, should be evaluated.  For the time being, it will be up to the lower courts to apply this analytical framework to specific cases.

Read Full Post »

The Supreme Court issued its decision today in Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146, a case that many commentators predicted would provide an opportunity for the Court to limit or bar the use of statistical evidence as a substitute for common proof in class actions.  The majority opinion, authored by Justice Kennedy, rejected the invitation to create a “broad rule” limiting the use of statistical evidence, however.  Instead, the Court offered practical guidance on the situations in which statistical evidence may or may not be appropriate.  The relevant portion of the opinion is short and succinct, so I have quoted it in its entirety below:

[P]etitioner and various of its amici maintain that the Court should announce a broad rule against the use in class actions of what the parties call representative evidence. A categorical exclusion of that sort, however, would make little sense. A representative or statistical sample, like all evidence, is a means to establish or defend against liability. Its permissibility turns not on the form a proceeding takes—be it a class or individual action—but on the degree to which the evidence is reliable in proving or disproving the elements of the relevant cause of action. See Fed. Rules Evid. 401, 403, and 702.

It follows that the Court would reach too far were it to establish general rules governing the use of statistical evidence, or so-called representative evidence, in all class-action cases. Evidence of this type is used in various substantive realms of the law. Brief for Complex Litigation Law Professors as Amici Curiae 5–9; Brief for Economists et al. as Amici Curiae 8–10. Whether and when statistical evidence can be used to establish classwide liability will depend on the purpose for which the evidence is being introduced and on “the elements of the underlying cause of action,” Erica P. John Fund, Inc. v. Halliburton Co., 563 U. S. 804, 809 (2011).

In many cases, a representative sample is “the only practicable means to collect and present relevant data” establishing a defendant’s liability. Manual of Complex Litigation §11.493, p. 102 (4th ed. 2004). In a case where representative evidence is relevant in proving a plaintiff’s individual claim, that evidence cannot be deemed improper merely because the claim is brought on behalf of a class. To so hold would ignore the Rules Enabling Act’s pellucid instruction that use of the class device cannot “abridge . . . any substantive right.” 28 U.S.C. § 2072(b).

Those who were hoping for a rule barring statistical evidence as a proxy for common evidence in class actions will no doubt be disappointed, but Justice Kennedy’s opinion does go much further than it had to in beginning to develop standards that will govern resolution of the issue in future cases.  To summarize:

  1. There is no general rule barring the use of statistics to prove class-wide liability in a class action.
  2. The extent to which statistical evidence is allowable in a class action depends on whether the evidence is reliable in proving or disproving the elements of a relevant cause of action.
  3. Statistical evidence is admissible in a class action if it would be admissible in an individual action to prove or disprove elements of a plaintiffs’ claim.
  4. Whether statistical evidence can be used to establish class-wide liability depends on the purpose for which the evidence is being introduced and on “the elements of the underlying cause of action.”

As a final side-note, the decision in Tyson Foods does not appear to have been impacted at all by the recent death of Justice Scalia.  Only two of the eight remaining Justices, Justices Thomas and Alito, dissented.

Read Full Post »

The Supreme Court issued its opinion today in the first of what will be several class-action-related decisions this term.  As noted in my Supreme Court preview post, the primary issue in Campbell-Ewald Co. v. Gomez, No. 14-857 was whether an unaccepted offer of complete relief to a named plaintiff in a class action had the effect of mooting the plaintiff’s claim, depriving a federal court of Article III jurisdiction.  The Court said no, agreeing with the now unanimous view of the Circuit Courts of Appeals.   Click this link for a copy of the slip opinion.  Justice Kennedy sided with the liberal wing of the Court in supporting Justice Ginsburg’s majority opinion, with Justice Thomas concurring in the judgment.  Perhaps the most interesting thing about the opinion from a practitioner’s point of view is the issue that the majority expressly decline to address despite having been discussed at some length during oral argument:

We need not, and do not, now decide whether the result would be different if a defendant deposits the full amount of the plaintiff ’s individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount. That question is appropriately reserved for a case in which it is not hypothetical.

 

So, just as we were left with a cliffhanger when the Court decided its previous case involving offers of judgment, Genesis Healthcare Corp. v. Symczyk, we’ll have to stay tuned for the third chapter of the trilogy to find out whether paying the full amount of a plaintiff’s claim into the registry of the Court moots a class action.  Be on the lookout for a preview of this issue at a District Court near you.

Read Full Post »

Thomson Reuters contributor Alison Frankel interviewed me for an article she posted today on the class action cases pending during the current Supreme Court term.  Here is a link to her article.  For those who are not familiar with Frankel’s On the Case Blog, be sure to add it to your regular reading list.  She is one of the best in the business.

Read Full Post »

I just received my courtesy copy to the latest edition of the Akron Law Review, a symposium issue titled The Class Action After a Decade of Roberts Court Decisions, Volume 48, Issue 4 (2015).  My colleague Dustin Dow and I contributed an article entitled The Practical Approach: How the Roberts Court Has Enhanced Class Action Procedure by Strategically Carving at the Edges.  The contributors to the issue are academics, students, and practitioners from both sides of the bar, including Professor Bernadette Bollas Genetin, Professor Richard Freer, Elizabeth Cabraser, Professor Michael Selmi & Sylvia Tsakos, Andrew Trask, Professor Mark Moller, and Eric Alan Isaacson.  The articles range in perspective from theoretical to historical to practical, with some surveying the Roberts Court’s class action decisions generally, and others focusing on the Roberts Court’s contributions in key areas of the law.

For anyone who follows the Supreme Court’s decisions on class action issues, this is a must-read issue.  Check it out by clicking the link on the symposium title above.

Read Full Post »

The October 2015 United States Supreme Court Term is already well underway, and there are several cases on the docket that could have a significant impact on class action practice.  Here is a summary of the three cases this term that I think could have the biggest impact on class action practice going forward:

Campbell-Ewald Co. v. Gomez, No. 14-857

The Campbell-Ewald case addresses the tactic known as “picking-off” named plaintiffs in class actions, and deals with the question whether an offer of judgment that would provide a named plaintiff complete relief is sufficient to moot the plaintiffs’ claim, even if it is not accepted.  The case follows the Court’s 2013 decision in Genesis Healthcare v. Symczyk, where the majority opinion assumed, without deciding, that an offer of judgment had mooted the named plaintiffs’ claim in an FLSA collective action, based on a finding that the issue had been waived below.

Oral argument in Campbell-Ewald was held in October.  Justices Alito, Scalia, and Chief Justice Roberts all displayed open hostility to the plaintiffs’ position that she should be allowed to litigate the case even after the defendant had offered everything she hoped to achieve for herself in the case.  Despite these views, however, it remains to be seen whether a majority of the court will ultimately hold that any unaccepted offer of settlement is sufficient to actually moot the plaintiffs’ claim under Article III, or whether the decision will fall short of reaching that sweeping question.  Some of the questions posed by likely swing voter, Justice Kennedy, suggest that he agrees with his conservative colleagues that a litigant who has been offered full relief should not be permitted to proceed with the case, but other questions reflected a reluctance to treat an unaccepted offer the same as a judgment.  This suggests that the Court’s ultimate decision could turn on a more technical procedural analysis rather than the broader and more abstract question of whether a controversy can ever exist following an offer of full relief, but of course the questions posed during oral argument do not always signal the Court’s ultimate analysis.

When the Supreme Court originally granted cert in Campbell-Ewald, there appeared to be a split in the circuits on this question, but since then, the circuits have become aligned with the view that an unaccepted offer in a proposed class action does not moot the named plaintiffs’ claims.  A contrary ruling by the Supreme Court would revive a powerful tool that defendants could wield to effectively preempt many types of consumer class actions, especially those seeking statutory damages for small individual amounts.

Spokeo, Inc. v. Robins, No. 13-1339

Spokeo has been hailed as a case with the potential to end “no-injury” class actions.  Ostensibly at issue is whether Congress has the power to enact legislation that gives a private plaintiff the right to seek statutory damages despite the lack of any concrete injury.  A decision could therefore potentially have a significant impact on class actions brought under a variety of federal statutes that provide a private right of action to recover statutory damages upon proof of a violation, one that goes beyond the Fair Credit Reporting Act, the statute at issue in Spokeo.

However, during today’s oral argument, much of the questioning focused on whether the named plaintiff had, in fact, suffered an injury by alleging that false information had been published on his credit report, and the extent to which Congress actually intended to limit the private right of action under the Fair Credit Reporting Act to persons who could show an actual injury.  It seems likely that the outcome of the case will turn on the majority’s view of those two factors.

Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146

Tyson Foods offers the Court an opportunity to further elaborate on the concept of “trial by formula”, discussed in Justice Scalia’s 2011 opinion in Wal-Mart Stores, Inc. v. Dukes, as well as the standards governing expert testimony at the class certification phase, which the Court touched upon but did not  ultimately address directly in both Wal-Mart and again in the 2013 decision in Comcast Corp. v. Behrend.  It also raises the question whether it is ever proper to certify a damages class that includes individual plaintiffs that undisputedly lack any injury or damages.

Specifically, the Court granted certiorari on the following two questions:

I. Whether differences among individual class members may be ignored and a class action certified under Federal Rule of Civil Procedure 23(b)(3), or a collective action certified under the Fair Labor Standards Act, where liability and damages will be determined with statistical techniques that presume all class members are identical to the average observed in a sample; and

II. Whether a class action may be certified or maintained under Rule 23(b)(3), or a collective action certified or maintained under the Fair Labor Standards Act, when the class contains hundreds of members who were not injured and have no legal right to any damages.

Oral argument in Tyson Foods is set for next Monday, November 10.

Read Full Post »

Older Posts »