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Posts Tagged ‘u.s. supreme court’

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.

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The Second Circuit Court of Appeals issued a decision last week that confirms that there are still situations where primarily foreign securities fraud disputes may be litigated as class actions in the United States courts.  The decision explores the contours of the US Supreme Court’s holding in Morrison v. National Australia Bank Ltd., 130 S. Ct. 2869 (2010) that § 10(b) of the Securities Exchange Act of 1934 does not have an extraterritorial reach.  Here’s a link to the opinion, courtesy of the New York Law Journal: Absolute Activist Value Master Fund Ltd. v. Ficeto, No. 11-0221-cv (2d Cir., March 1, 2012).

Morrison recognized two situations in which a securities fraud claim would be sufficiently domestic in nature to be governed by § 10(b) and SEC Rule 10b-5.  The first, not at issue in Absolute Activist, is where the security is traded on a US exchange.  Absolute Activist addresses the second situation, which involves “domestic transactions in other securities.”  The Second Circuit’s test for whether transactions are domestic is whether “irrevocable liability is incurred or title passes within the United States.”  In simpler terms, if the parties become bound to effectuate the transaction in the United States, the transaction is a domestic one, but the transaction could also be domestic if title to the securities passes within in the United States, even if the parties became bound elsewhere.  In reaching this conclusion, the panel rejected several other tests proposed by the parties, including tests proposed by the plaintiff that would have looked to the location of the broker-dealer or to whether the security was issued by a US company or was registered with the SEC, and tests proposed by defendants that would look to the place of residence of both the buyer and seller in the transaction or to whether a given defendant committed some affirmative act within the United States.

Unfortunately, given the fact-intensive nature of the test articulated by the Second Circuit panel, the decision leaves open the question of what specific facts might be sufficient to establish that irrevocable liability was incurred or title transferred within the United States.  The panel held that the facts in the complaint were not sufficient to meet either requirement, but remanded with instructions to allow leave to amend.  However, the opinion does offer some insight into what might be sufficient.  In concluding that leave to amend would not be futile, the court held pointed to representations made by counsel at oral argument that there existed “trading records, private placement offering memoranda, and other documents indicating that the purchases became irrevocable upon payment and that payment was made through Hunter in the United States.”

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My submission to the SCOTUSblog Class Action Symposium is now available for viewing.  Click the title below for the link:

The October 2010 Supreme Court Term in review: For defendants, life returns to normal after the celebration ends

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For those of you who simply can’t get enough of the Supreme Court’s recent class action rulings, I will be speaking in an upcoming live phone/web seminar sponsored by Strafford Publications entitled “Class Certification After Dukes, Bayer and Halliburton Rulings.”   The Webinar  is scheduled for Tuesday, August 30, 1:00pm-2:30pm EDT.   Here is a summary:

The Supreme Court’s watershed Dukes v. Wal-Mart ruling set new standards for Rule 23(a) class certification and provided guidance to the level of merits inquiry appropriate at the certification stage. It also clarified when a claim for monetary relief can be made under Rule 23(b). While Dukes is a shift in defendants’ favor, the Court refused in Smith v. Bayer to curtail relitigation of class actions in parallel state court litigation. Federal courts may not enjoin state courts from considering certification when a federal court has denied certification of the same class. In Erica John Fund v. Halliburton, the Court held that loss causation is not a prerequisite to class certification in a securities action. However, the Court did not address the existing circuit court divergence on whether a court should examine evidence of price impact at the certification stage. My fellow panelists and I developed this program to analyze three key Supreme Court rulings, Dukes, Bayer and Halliburton and their impact on current class certification jurisprudence. We will discuss how plaintiff and defendant counsel can best leverage or overcome the impact of these rulings in certification proceedings. We will offer our perspectives and guidance on these and other critical questions: What impact will Dukes have on the use of statistics and expert testimony in support of class certification? How will commonality and numerosity be applied after Dukes? What guidance, if any, does the Bayer case provide regarding relitigating competing class actions where class certification has already been granted? In light of Halliburton, should a district court examine evidence of price impact at the class certification stage, and if so, who has the burden of proof? After our presentations, we will engage in a live question and answer session with participants — so we can answer your questions about these important issues directly. I hope you’ll join us.

For more information or to register, visit the Strafford website at this link.

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Earlier today, the Supreme Court issued its third of four class action-related decisions for the October 2010 term.  In Smith v. Bayer Corp., No. 09-1205, the Court held that a federal court exceeded its authority when it issued an injunction preventing a state court from considering whether to certify a class on claims in which the federal court had previously denied class certification. 

Justice Kagan’s opinion involves a fairly straightforward academic analysis of the “re-litigation exception” to the federal Anti-injunction Act and principles of issue and claim preclusion: where a state court applies a different class certification standard than the standard applicable under FRCP 23, the issue decided in the federal action on class certification is not the same as the one to be decided in the state court proceeding.

However, the practical impact of the decision is that a plaintiffs’ lawyer who is unsuccessful in seeking class certification in federal court can try again in a state that applies a different class certification standard.  Of course, the successive class action is potentially subject to removal under the Class Action Fairness Act (CAFA), but if one of the exceptions to CAFA applies, such as the home state or local controversy exception, the Court’s decision paves the way for multiple bites at the class certification apple.

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The United States Supreme Court will hold oral argument next Tuesday, March 29, 2011, in case of Wal-mart v. Dukes, No. 10-277.  The issue for review, at least so far, according to order granting certiorari, is:

Whether claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2) – which by its terms is limited to injunctive or corresponding declaratory relief – and, if so, under what circumstances.

Hopefully, questions posed by the justices during the argument will also provide insight into what the Court meant in its somewhat vague directive that the parties brief the issue “Whether the Class Certification ordered under Rule 23(b)(2) was consistent with Rule 23(a).”

Another thing I’ll be looking out for is whether the questions appear to limit the analysis to the employment discrimination context, or whether they portend a more general analysis of Rule 23 that could impact class actions in other subject matter areas.

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Earlier today, the U.S. Supreme Court held oral argument in  Smith v. Bayer, which raises the question of a federal court’s power to enjoin a state court from considering class certification after the federal court had previously denied certification.  A copy of the argument transcript is available for download at the Supreme Court’s website.  Some of the key lines of inquiry from the Court can be summarized as follows:

  • Are there differences between FRCP 23 and West Virginia Rule 23 that should have prevented the application of issue preclusion?
  • Even if the elements of the two rules are substantially the same, does the fact that the West Virginia courts take a more favorable “tone” toward class certification mean that they are different for the purposes of an issue preclusion analysis?
  • Does an individual have a protected due process right to be heard on a procedural issue, such as the appropriateness of class certification, as opposed to a substantive right or cause of action?
  • Does it matter whether the plaintiff in the second case could have intervened in the first one?
  • Why isn’t it sufficient that the state court in a subsequent case can decide to apply issue preclusion, as opposed to the federal court enjoining the state court from even considering the question?
  • Does the absense of a formal judgment mean that the relitigation exception of the Anti-injunction Act cannot apply to class certification orders at all?
  • Can the plaintiff and his or her counsel who unsuccessfully sought class certification in one case be considered sufficiently representative of other absent class members and their counsel to satisfy the identity of interest requirement of issue preclusion?

Although most of the questions involved how the case should be decided under express statutory language and established legal principles, it seems reasonable to expect that the Justices’ views on federalism, and the proper balance between federal and state power, will flavor the Court’s decision.  The federalism theme is one that counsel for the plaintiffs, Richard A. Monohan, fell back to on several occasions during the argument.  Perhaps not coincidently, two of the members of the Court’s conservative bloc, Justice Scalia and Chief Justice Roberts, asked some of the more biting questions implicating the fairness of precluding a new party from re-litigating an unsuccessful attempt at class certification by a different party.

To this point, the Roberts Court’s direction on issues of federalism has been less than clear (see this September 2010 National Law Journal article by Marcia Coyle).  This case offers the opportunity to start charting a more specific course.  At the same time, this is the kind of case that can foster unpredictable alliances within the Court.  For example, the states’ rights supporters may find themselves joining forces with one or more Justices who see unfairness in preventing absent class members from having their day in court on the issue of class certification. 

On the other hand, predicting the outcome or rationale of Supreme Court cases is a lot like predicting the NFL playoffs.

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