Friday, March 27, 2009

District Court Certifies Settlement Class Without State-by-State Analysis of Laws

Per BNA's Class Action Litigation Report, 3/27/2009:

No detailed state-by-state analysis of the various state consumer protection laws was needed before certifying a settlement of class claims arising from bulb failures in high-end televisions, the U.S. District Court for the Eastern District of New York decided Feb. 24 (Ersler v. Toshiba America, Inc., E.D.N.Y., No. 07-cv-02394, 2/24/09).

Magistrate Judge Steven M. Gold approved a joint request by the parties to approve a settlement compensating class members and awarding negotiated counsel fees and expenses of $247,224.40. The settlement, the court said, is fair and there were few objections or opt-outs.

. . .

The court acknowledged case law instructing that the predominance requirement for class certification cannot be met where state-by-state analysis is required. But, the court was satisfied that state-by-state analysis is not required here.

BNA subscribers may view the full story by clicking here.

Thursday, March 26, 2009

First Circuit Discusses Split on Issue of Apportionment of Multi-Defendant Settlement Offers to Trigger Rule 68

Per King v. Rivas, 555 F.3d 14 (1st Cir. Feb 02, 2009):

The circuit courts have been divided about variations on the central problem. The Seventh Circuit has insisted that to trigger Rule 68 in multi-defendant cases an offer must contain amounts allocated to each defendant, Harbor Motor Co., Inc. v. Arnell Chevrolet-Geo, Inc., 265 F.3d 638, 648-49 (7th Cir.2001); but it did so citing a prior case, Gavoni v. Dobbs House, Inc., 164 F.3d 1071 (7th Cir.1999), involving joint plaintiffs, who present quite different problems; and the result in Harbor Motor was more than justified on a different ground, namely, that the verdict in favor of the co-defendant was being reversed, Harbor Motor, 265 F.3d at 644-45, so the plaintiff's total package could in the end well exceed the package offer.

Similarly, the Fifth Circuit also said the failure to allocate was fatal; but it did so on facts where it was otherwise plainly right to refuse to shift costs because the judgment against the defendant exceeded the offer-when combined with a settlement received from the other. Johnston, 803 F.2d at 870. The apportionment notion was invoked to reach a correct result but one properly reached by saying that the joint offer was less than the total amount actually recovered by the plaintiff.

The Third Circuit, by contrast, approved use of Rule 68 cost shifting where an unapportioned offer had been made that exceeded the amount recovered; it said that the suit against multiple defendants involved joint liability and an indemnification contract, although it is not clear how much this mattered to the court nor why it should matter. Le v. Univ. of Pa., 321 F.3d 403, 408 (3d Cir.2003). And district courts have employed Rule 68 without difficulty in multiple defendant cases where the offer was not apportioned and the total recovery was less than the unapportioned offer.FN4

. . . .

[W]e agree with the outcomes in the Seventh and Fifth Circuit decisions ( Harbor Motor and Johnston ) because comparability was impossible in the first case and favored the plaintiff in the second, but not the putative rationales adopted by those courts, and we align ourselves with the Third Circuit, save that we do not see why it matters whether liability was joint or several or how the defendants were related: a package offer is simply to be taken on its own terms and compared with the total recovery package.

Wednesday, March 25, 2009

Prof. Burbank Posts Article on Pleading and the Dilemmas of General Rules

Professor Burbank has recently posted an Article entitled Pleading and the Dilemmas of 'General Rules' on SSRN. Here is the Abstract:

This article comments on Professor Geoffrey Miller's article about pleading under Tellabs and goes on (1) to use Tellabs, Bell Atlantic Corp. v Twombly, and Iqbal v. Hasty (in which the Court has granted review) to illustrate the limits of, and costs created by, certain foundational assumptions and operating principles that are associated with the Rules Enabling Act's requirement of general rules, and (2) more generally, to illustrate the costs of the complex procedural system that we have created. Thus, for instance, the argument that the standards emerging from Twombly should be confined to antitrust conspiracy cases confronts the foundational assumptions that the Federal Rules are trans-substantive and that they cannot be amended by judicial interpretation. Similarly, in Iqbal, the Government presumably denies that it is calling for the imposition of a heightened fact pleading requirement in cases involving high government officials entitled to an immunity defense because the Court seems to have made it impossible for the judiciary openly to impose such a requirement other than through The Enabling Act Process. The Court may, however, take a different view of the appropriate contextual plausibility judgment than did the lower court in Iqbal. If so, however, the Court would thereby confirm the view that Twombly is an invitation to the lower courts to make ad hoc decisions reflecting buried policy choices. I therefore argue that, if the Court is persuaded that the changes already made to pleading jurisprudence are insufficient to accommodate the needs of the immunity defense, it should forthrightly require fact pleading as a matter of substantive federal common law.

This Article may be downloaded by visiting

Tuesday, March 24, 2009

Dean Klonoff and Co-Authors Herrman & Harrison Post Article on Class Actions and the Internet

Dean Robert Klonoff (Lewis & Clark) and co-authors Mark Herrman and Brad Harrison have posted an Article entitled Making Class Actions Work: The Untapped Potential of the Internet
(University of Pittsburgh Law Review, Vol. 69, p. 727, 2008) on SSRN. Here is the Abstract:

Over twenty years ago, the Supreme Court recognized that in class action litigation, absent class members "must receive notice plus an opportunity to be heard and participate in the litigation, whether in person or through counsel." Although the absent class members' rights to receive notice and an opportunity to opt out are of vital importance, the ability to be heard and participate in the litigation are also important.

Despite the benefits of participation by absent class members, class action case law and commentary have focused more on maximizing efficiency than on protecting an individual class member's ability to participate in the litigation. Indeed, the Supreme Court itself has recognized that, within existing class action practice, absent class members normally do nothing. Instead of fostering true participation by absent class members, courts have accepted alternatives, finding that the rights of absent class members to receive notice and to opt out and the promise of adequate class counsel are sufficient surrogates for actual participation. In the past, these substitute mechanisms for true involvement, although inadequate, may have been understandable because of the logistical difficulties in permitting absent class members to participate in the same manner as litigants in traditional bilateral litigation.

Class action litigation inherently focuses on the claims of large numbers of people. That concept is captured explicitly in Federal Rule of Civil Procedure 23(a), which requires, as a prerequisite to class certification, that "the class is so numerous that joinder of all members is impracticable." And, although "impracticable" does not necessarily require large numbers, the requirement is usually fulfilled because of the large number of individuals involved.

Adjudicating the claims of large numbers of absent class members presents difficulties that do not exist in traditional bilateral litigation. In bilateral litigation, the parties have direct contact with their counsel and can obtain from them necessary information about the case and the litigation process in general. By contrast, class counsel have historically been unable to keep absent class members abreast of the progress of a specific class action case or to involve absent class members in litigation in any meaningful manner. Until recently, these difficulties have precluded meaningful involvement by most absent class members, to the detriment of the entire class action process.

The internet has become entrenched in the American way of life and provides a mechanism through which absent class members' right to participate meaningfully in class action litigation can be realized. Since September 2001, over half of the households in the United States have maintained internet access. Even this enormous number, however, represents only part of the picture, because it fails to account for individuals who have access to the internet at work or through other channels, such as public libraries. Taking into account all means of accessing the internet, as of March 31, 2007, the percentage of Americans over the age of twelve with internet access is between 70% and 78% of the population.

People not only have access to the internet; they use it. The average American internet user accesses the web ten times and visits approximately 24 to 26 different domains per week. Over the course of a week, the average American internet user spends more than ten hours on the internet, and this usage is on the rise. For instance, a 2007 study by the Newspaper Association of America indicates that 62.8 million people per month visited online newspaper websites in the fourth quarter of 2007. Comparing 2006 to 2005, the average unique audience for newspaper websites increased 22%. Increasingly, people are regularly visiting portal websites and websites with extensive search capabilities, such as, Yahoo, and Google, to guide their internet browsing. The internet has clearly become a vital "communication, information, entertainment, and transaction tool."

This Article focuses on the capacity of the internet to foster true participation by absent class members. Part I of this Article examines how the internet is currently used in class action litigation. As the Article explains, although the internet has been used in some aspects of class action practice, that use has been limited and sporadic. Part II examines the full potential of the internet to increase absent class members' participation. It offers concrete proposals for integrating the internet into virtually every aspect of the class action process.

This Article may be downloaded by visiting

Monday, March 23, 2009

CIT Holds That Attorneys' Fees Not Awardable for Phases of LItigation in Which Claimant Was Opposed Solely by Third Parties

Per Jazz Photo Corp. v. U.S., --- F.Supp.2d ----, 2008 WL 5492105 (CIT Dec. 2, 2008

It is inappropriate to award attorneys' fees against the government for those phases of litigation in which the claimant was opposed solely by third parties. See Judicial Watch, Inc. v. United States Dep't of Commerce, 470 F.3d 363, 373 (D.C.Cir.2006) (providing instructive reasoning on EAJA with regard to claimant's litigation disputes with third parties); see also Love v. Reilly, 924 F.2d 1492, 1496 (9th Cir.1991) (applying EAJA and concluding that “where plaintiffs are litigating an issue and are opposed only by private defendants, a fee award against the government would be ‘manifestly unfair and contrary to historic fee-shifting principles.’" (quoting Avoyelles Sportsmen's League v. Marsh, 786 F.2d 631, 636 (5th Cir.1986)). The court determines that the position taken by the government with regard to Fuji at the appellate level was not in opposition to plaintiff.

. . .

The primary purpose of EAJA is to eliminate legal expense as a barrier to challenges of “unreasonable government action.” See Ellis, 711 F.2d. at 1576. Because EAJA contemplates deterring only unreasonable positions taken by the government, the court agrees with the reasoning in Judicial Watch, Inc. and Love and concludes that it is improper to grant an EAJA award where a non-governmental party litigated the issue and the government took no position.

Thursday, March 19, 2009

Institute for the Advancement of the American Legal System and the ACTL Release Reform Principles to Improve the U.S. Civil Justice

Here is a press release from the University of Denver's Institute for the Advancement of the American Legal System:

The Final Report on the Joint Project of the American College of Trial Lawyers (ACTL) Task Force on Discovery and the Institute for the Advancement of the American Legal System (IAALS) is the culmination of an 18-month collaboration between the two organizations. This report includes a set of 29 proposed Principles that may one day underpin reform of the civil rules of procedure in both federal and state systems. One of the major Principles examines the traditional "one size fits all" application of rules to all cases and concludes that this approach no longer works. Instead, flexibility in applying specialized procedures to some cases should be permitted to promote efficient and affordable outcomes. The Final Report represents phase two of the initiative, which began with a national survey of ACTL members, undertaken to identify the sources of spiraling cost and delay in our civil justice system.

The release of the Principles will provide the platform for an important nationwide conversation about these crucial issues. Please click here to download a copy of this report. To review media coverage, please click here.

Wednesday, March 18, 2009

Prof. Tsai Posts Article on Certifying Civil Rights Discrimination Class Action Suits

Professor James T. Tsai (Case Western) has posted an Article entitled 23(b)(2) Class Certification: Choosing an Approach for Certifying Civil Rights Discrimination Class Action Suits on SSRN. Here is the Abstract:

The passage of the 1991 amendments to the Civil Rights Act granted injunctive as well as monetary damages for impermissible discrimination in the workplace. The Act also created a tension with the last revision of the Federal Rules of Civil Procedure in 1966. This revision prohibits the certification of a class under Rule 23(b)(2) if the damages sought are predominantly monetary in nature. On one end of this resulting tension is the desire to protect individuals rights to opt-out of a class action suit and maintain future individual actions. On the other end is the desire for judicial economy and the possibility to have sweeping remedies in the form of injunctive or declaratory relief. This tension is not reconcilable at the present and has fueled the growth of a three-way circuit split over what standard should be used to decide the certification of a class action civil rights discrimination suit. I argue that the circuit split has presented some courts to provide a higher burden to alleged victims of civil rights discrimination, in direct frustration of Congress' legislative intent to compensate victims and give a punitive remedy against large companies that commit civil rights violations. I propose a burden-shifting solution to the circuit split that takes into account the interests of the parties in a class action suit as well as the effects of racial politics. I however advocate an appropriate and ultimate solution that revises the Federal Rule that clearly expresses an approach taking into account this tension.

This Article may be downloaded by visiting

Monday, March 16, 2009

Macey & Miller Post Article on Judicial Review of Class Action Settlements on SSRN

Professor Jonathan R. Macey (Yale) and Geoffrey P. Miller (NYU) recently posted an Article entitled Judicial Review of Class Action Settlements on SSRN. Here is the Abstract:

This article proposes a simple and coherent approach to judicial review of class action settlements. Specifically, we propose that for questions going to the adequacy of a settlement, where no warning signals of fraud or collusion are found, the court should act relatively deferentially by employing a lenient standard of scrutiny and approving a settlement if it has a rational basis. An intermediate level of scrutiny should apply when the settlement presents facial issues that implicate the fairness of the settlement. Such facial issues include the allocation of settlement proceeds among subgroups in a class, the presence of coupon-type relief, "shotgun" settlements occurring very early in the litigation, and settlements in overlapping class actions. In settlements with one or more of these characteristics, if the initial inquiry raises concerns, the court should demand a well-reasoned explanation for the choices made. Finally, where the components of a settlement present a direct conflict between the interests of class counsel and those of the class issues, such as issues related to attorneys' fees, courts should employ exacting scrutiny and require convincing evidence that the proposal is reasonable.

This Article may be downloaded by visiting

Thursday, March 12, 2009

SCOTUS Affirms the Well-Pleaded Complaint Rule

On Monday the Supreme Court issued its decision in Vaden v. Discover Bank, No. 07–773, which held that federal question jurisdiction could not be predicated on the defendant's assertion of federal counterclaims, a holding that affirms the well-pleaded complaint rule. Here is an excerpt from the Syllabus:

Section 4 of the Federal Arbitration Act (FAA or Act), 9 U. S. C. §4, authorizes a United States district court to entertain a petition to compel arbitration if the court would have jurisdiction, “save for [the arbitration] agreement,” over “a suit arising out of the controversy between the parties.”

Discover Bank’s servicing affiliate filed a complaint in Maryland state court to recover past-due charges from one of its credit cardholders, petitioner Vaden. Discover’s pleading presented a claim arising solely under state law. Vaden answered and counterclaimed, alleging that Discover’s finance charges, interest, and late fees violated state law. Invoking an arbitration clause in its cardholder agreement with Vaden, Discover then filed a §4 petition in Federal District Court to compel arbitration of Vaden’s counterclaims. The District Court ordered arbitration.

On Vaden’s initial appeal, the Fourth Circuit remanded the case for the District Court to determine whether it had subject-matter jurisdiction over Discover’s §4 petition pursuant to 28 U. S. C. §1331, which gives federal courts jurisdiction over cases “arising under” federal law. The Fourth Circuit instructed the District Court to conduct this inquiry by “looking through” the §4 petition to the substantive controversy between the parties. With Vaden conceding that her state-law counterclaims were completely preempted by §27 of the Federal Deposit Insurance Act (FDIA), the District Court expressly held that it had federal-question jurisdiction and again ordered arbitration. The Fourth Circuit then affirmed. The Court of Appeals recognized that, in Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., 535 U. S. 826 , this Court held that federal-question jurisdiction depends on the contents of a well-pleaded complaint, and may not be predicated on counterclaims. It concluded, however, that the complete preemption doctrine is paramount and thus overrides the well-pleaded complaint rule.

Held: A federal court may “look through” a §4 petition to determine whether it is predicated on a controversy that “arises under” federal law; in keeping with the well-pleaded complaint rule as amplified in Holmes Group, however, a federal court may not entertain a §4 petition based on the contents of a counterclaim when the whole controversy between the parties does not qualify for federal-court adjudication. Pp. 6–21.

The opinions in this case are available at Cornell's LII website at

Wednesday, March 11, 2009

Prof. Bassett Posts Article on E-Discovery and Ethics

Debra Lyn Bassett (Alabama) recently posted an Article entitled E-Pitfalls: Ethics and E-Discovery on SSRN. Here is the Abstract:

Written for a symposium on e-discovery, this Article addresses the convergence of ethics and e-discovery, and contends that the surprise and concern often expressed regarding ethical issues in e-discovery, which seem to view the use of such ethical considerations as novel, unusual, and contrary to traditional discovery practices, are overstated. In particular, this Article argues that despite the seeming distinctiveness of issues concerning electronically stored information, well-established ethical rules apply to these issues in very familiar patterns and approaches. After examining the interplay between legal ethics and the practice of law generally, the Article analyzes the recent Qualcomm decision and offers some insights into both the reasons behind the Qualcomm court's insistence on employing ethical precepts in the e-discovery context, and why the use of ethical principles in discovery is likely to continue. Specifically, two provisions within Federal Rule 26(g) invite the continued use of ethical principles: (1) the limited nature of Rule 26(g)'s authorization of sanctions, and (2) the "reasonable inquiry" required by Rule 26(g) before signing a disclosure, discovery request, or response.

The Article can be dowloaded by visiting

Monday, March 09, 2009

Prof. Spencer Posts Essay on the Restrictive Ethos in Civil Procedure

Professor A. Benjamin Spencer (Washington & Lee) has recently posted an Essay entitled The Restrictive Ethos in Civil Procedure on SSRN. This Essay was written for the 15th Annual Clifford Symposium on Tort Law and Social Policy at DePaul University College of Law and will appear in their law review. Here is the Abstract:

Those of us who study civil procedure are familiar with the notion that federal procedure under the 1938 civil rules was generally characterized by a "liberal ethos," meaning that it was originally designed to promote open access to the courts and to facilitate a resolution of disputes on the merits. Most of us are also aware of the fact that the reality of procedure is not always access-promoting or fixated on merits-based resolutions as a priority. Indeed, I would say that a "restrictive ethos" characterizes procedure today, with many rules being developed, interpreted, and applied in a manner that frustrates the ability of claimants to prosecute their claims and receive a decision on the merits in federal court. In this brief Essay, after discussing some of the familiar components of the liberal ethos of civil procedure, I hope to set forth some of the aspects of federal civil procedure that reflect the restrictive ethos, following up with some thoughts on whether a dialectical analysis can help us understand the nature of the relationship between procedure's liberal and restrictive components.

The complete Essay may be downloaded by visiting

Friday, March 06, 2009

SCOTUS Holds that State Law Tort Actions are Not Preempted by FDCA

On March 4 the Supreme Court issued its decision in Wyeth v. Levine, a case concerning whether a state law plaintiff's failure to warn claim was preempted by federal law. Here is the Syllabus:

Petitioner Wyeth manufactures the antinausea drug Phenergan. After a clinician injected respondent Levine with Phenergan by the “IV-push” method, whereby a drug is injected directly into a patient’s vein, the drug entered Levine’s artery, she developed gangrene, and doctors amputated her forearm. Levine brought a state-law damages action, alleging, inter alia, that Wyeth had failed to provide an adequate warning about the significant risks of administering Phenergan by the IV-push method. The Vermont jury determined that Levine’s injury would not have occurred if Phenergan’s label included an adequate warning, and it awarded damages for her pain and suffering, substantial medical expenses, and loss of her livelihood as a professional musician. Declining to overturn the verdict, the trial court rejected Wyeth’s argument that Levine’s failure-to-warn claims were pre-empted by federal law because Phenergan’s labeling had been approved by the federal Food and Drug Administration (FDA). The Vermont Supreme Court affirmed.

Held: Federal law does not pre-empt Levine’s claim that Phenergan’s label did not contain an adequate warning about the IV-push method of administration. Pp. 6–25.

(a) The argument that Levine’s state-law claims are pre-empted because it is impossible for Wyeth to comply with both the state-law duties underlying those claims and its federal labeling duties is rejected. Although a manufacturer generally may change a drug label only after the FDA approves a supplemental application, the agency’s “changes being effected” (CBE) regulation permits certain preapproval labeling changes that add or strengthen a warning to improve drug safety. Pursuant to the CBE regulation, Wyeth could have unilaterally added a stronger warning about IV-push administration, and there is no evidence that the FDA would ultimately have rejected such a labeling change. Wyeth’s cramped reading of the CBE regulation and its broad assertion that unilaterally changing the Phenergan label would have violated federal law governing unauthorized distribution and misbranding of drugs are based on the fundamental misunderstanding that the FDA, rather than the manufacturer, bears primary responsibility for drug labeling. It is a central premise of the Food, Drug, and Cosmetic Act (FDCA) and the FDA’s regulations that the manufacturer bears responsibility for the content of its label at all times. Pp. 11–16.

(b) Wyeth’s argument that requiring it to comply with a state-law duty to provide a stronger warning would interfere with Congress’ purpose of entrusting an expert agency with drug labeling decisions is meritless because it relies on an untenable interpretation of congressional intent and an overbroad view of an agency’s power to pre-empt state law. The history of the FDCA shows that Congress did not intend to pre-empt state-law failure-to-warn actions. In advancing the argument that the FDA must be presumed to have established a specific labeling standard that leaves no room for different state-law judgments, Wyeth relies not on any statement by Congress but on the preamble to a 2006 FDA regulation declaring that state-law failure-to-warn claims threaten the FDA’s statutorily prescribed role. Although an agency regulation with the force of law can pre-empt conflicting state requirements, this case involves no such regulation but merely an agency’s assertion that state law is an obstacle to achieving its statutory objectives. Where, as here, Congress has not authorized a federal agency to pre-empt state law directly, the weight this Court accords the agency’s explanation of state law’s impact on the federal scheme depends on its thoroughness, consistency, and persuasiveness. Cf., e.g., Skidmore v. Swift & Co., 323 U. S. 134 . Under this standard, the FDA’s 2006 preamble does not merit deference: It is inherently suspect in light of the FDA’s failure to offer interested parties notice or opportunity for comment on the pre-emption question; it is at odds with the available evidence of Congress’ purposes; and it reverses the FDA’s own longstanding position that state law is a complementary form of drug regulation without providing a reasoned explanation. Geier v. American Honda Motor Co., 529 U. S. 861 , is distinguished. Pp. 17–25.

___ Vt. ___, 944 A. 2d 179, affirmed.

Stevens, J., delivered the opinion of the Court, in which Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a concurring opinion. Thomas, J., filed an opinion concurring in the judgment. Alito, J., filed a dissenting opinion, in which Roberts, C. J., and Scalia, J., joined.

Thursday, March 05, 2009

Eleventh Circuit Finds Personal Jurisdiction Lacking under FRCP 4(k)(2) for Lack of Relatedness

Per Oldfield v. Pueblo De Bahia Lora, S.A., --- F.3d ----, 2009 WL 330935 (11th Cir. Feb. 12, 2009):

As previously stated, a fundamental element of the specific jurisdiction calculus is that plaintiff's claim must “arise out of or relate to” at least one of defendant's contacts with the forum. Burger King, 471 U.S. at 472, 105 S.Ct. at 2182. The Supreme Court has not yet fully delineated the contours of the “relatedness” requirement, see Helicopteros, 466 U.S. at 415 n. 10, 104 S.Ct. at 1873, leaving state and lower courts to fashion their own blueprint for analysis, see Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 97 (3d Cir.2004) (Scirica, C.J., dissenting in part) (“The courts of appeals have adopted divergent interpretations of ‘arise out of or relate to’ as that phrase relates to the specific jurisdiction analysis.”). Unlike other courts, FN32 we have not developed or adopted a specific approach to determining relatedness; instead, we have heeded the Supreme Court's warning against using “mechanical or quantitative” tests.

. . .

Parrot Bay Village's [the defendant] internet contacts with the United States were related to Oldfield's negligence claim, but only in the sense that but-for the website being made available to United States residents Oldfield would not have gone to Costa Rica, boarded the fishing boat, and suffered an injury. The problem with this but-for approach is that it is over-inclusive, making any cause of action, no matter how unforeseeable, necessarily “related to” the initial contact. See Nowak v. Tak How Invs., Ltd., 94 F.3d 708, 715 (1st Cir.1996) (commenting that “but-for” causation formulation is too overinclusive to satisfy relatedness requirement because it “has ... no limiting principle; it literally embraces every event that hindsight can logically identify in the causative chain.”). Instead, we examine whether the injury Oldfield suffered--while aboard a fishing vessel that Pueblo [the co-defendant] neither owned nor operated--was a foreseeable consequence of his viewing the Parrot Bay Village website, reserving a room at the resort, and arranging for a fishing trip run by someone else. Thus stated, it is apparent that the nexus between Oldfield's injury and the internet contact is too remote to satisfy the relatedness requirement. A finding that such a tenuous relationship between Pueblo's relevant contacts and the negligence of the captain who was not employed or controlled by Pueblo somehow satisfied the relatedness requirement would not only contravene the fairness principles that permeate the jurisdictional due process analysis, but would also interpret the requirement so broadly as to render it virtually meaningless.

Wednesday, March 04, 2009

SCOTUS Decides Standing Case

The Supreme Court has issued a decision in SUMMERS et al. v. EARTH ISLAND INSTITUTE et al., a case that addresses the issue of standing. Here is the Syllabus:

After the U. S. Forest Service approved the Burnt Ridge Project, a salvage sale of timber on 238 acres of fire-damaged federal land, respondent environmentalist organizations filed suit to enjoin the Service from applying its regulations exempting such small sales from the notice, comment, and appeal process it uses for more significant land management decisions, and to challenge other regulations that did not apply to Burnt Ridge. The District Court granted a preliminary injunction against the sale, and the parties then settled their dispute as to Burnt Ridge. Although concluding that the sale was no longer at issue, and despite the Government’s argument that respondents therefore lacked standing to challenge the regulations, the court nevertheless proceeded to adjudicate the merits of their challenges, invalidating several regulations, including the notice and comment and the appeal provisions. Among its rulings, the Ninth Circuit affirmed the determination that the latter regulations, which were applicable to Burnt Ridge, were contrary to law, but held that challenges to other regulations not at issue in that project were not ripe for adjudication.

Held: Respondents lack standing to challenge the regulations still at issue absent a live dispute over a concrete application of those regulations. Pp. 4–12.

(a) In limiting the judicial power to “Cases” and “Controversies,” Article III restricts it to redressing or preventing actual or imminently threatened injury to persons caused by violation of law. See, e.g., Lujan v. Defenders of Wildlife, 504 U. S. 555 . The standing doctrine reflects this fundamental limitation, requiring that “the plaintiff … ‘alleg[e] such a personal stake in the outcome of the controversy’ as to warrant his invocation of federal-court jurisdiction,” Warth v. Seldin, 422 U. S. 490 . Here, respondents can demonstrate standing only if application of the regulations will affect them in such a manner. Pp. 4–5.

(b) As organizations, respondents can assert their members’ standing. Harm to their members’ recreational, or even their mere esthetic, interests in the National Forests will suffice to establish the requisite concrete and particularized injury, see Sierra Club v. Morton, 405 U. S. 727 , but generalized harm to the forest or the environment will not alone suffice. Respondents have identified no application of the invalidated regulations that threatens imminent and concrete harm to their members’ interests. Respondents’ argument that they have standing based on Burnt Ridge fails because, after voluntarily settling the portion of their lawsuit relevant to Burnt Ridge, respondents and their members are no longer under threat of injury from that project. The remaining affidavit submitted in support of standing fails to establish that any member has concrete plans to visit a site where the challenged regulations are being applied in a manner that will harm that member’s concrete interests. Additional affidavits purporting to establish standing were submitted after judgment had already been entered and notice of appeal filed, and are thus untimely. Pp. 5–8.

(c) Respondents’ argument that they have standing because they have suffered procedural injury—i.e., they have been denied the ability to file comments on some Forest Service actions and will continue to be so denied—fails because such a deprivation without some concrete interest affected thereby is insufficient to create Article III standing. See, e.g., Defenders of Wildlife, supra, at 572, n. 7. Pp. 8–9.

(d) The dissent’s objections are addressed and rejected. Pp. 9–12.

490 F. 3d 687, reversed in part and affirmed in part.

Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, and Alito, JJ., joined. Kennedy, J., filed a concurring opinion. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined.

Tuesday, March 03, 2009

SCOTUS to Rule on Subject Matter Jurisdiction over Copyright Infringement Claims

SCOTUS Blog is reporting on Reed Elsevier, et al., v. Muchnick, et al. (08-103), which will address the following question: “Does 17 USC 411 (a) restrict the subject matter jurisdiction of the federal courts over copyright infringement actions?”

To see the SCOTUS Blog story click here.

Monday, March 02, 2009

Prof. Spencer Posts Forthcoming Article on Pleading Doctrine

Professor A. Benjamin Spencer (Washington & Lee) has just posted an Article entitled Understanding Pleading Doctrine on SSRN. This piece will appear in volume 108 of the Michigan Law Review later this year. Here is the Abstract:

Where does pleading doctrine, at the federal level, stand today? The Supreme Court's revision of general pleading standards in Bell Atlantic Corp. v. Twombly has not left courts and litigants with a clear or precise understanding of what it takes to state a claim that can survive a motion to dismiss. Claimants are required to show "plausible entitlement to relief" by offering enough facts "to raise a right to relief above the speculative level." Translating those admonitions into predictable and consistent guidelines has been illusory. This Article proposes a descriptive theory that explains the fundaments of contemporary pleading doctrine in a way that gives it some of the clarity and precision it otherwise lacks. The major descriptive thesis posited here is that the central animating principle of contemporary pleading doctrine is the requirement that a complaint-through the use of objective facts and supported implications-describe events about which there is a presumption of impropriety. Getting to that presumption requires different degrees of factual specificity depending upon the factual and legal context of the claim. A secondary descriptive claim is that the doctrine in its current iteration privileges efficiency interests over the justice-related concerns of accuracy and procedural fairness. Unfortunately, this preference unduly harms the right of access to courts for those plaintiffs having claims that require the pleading of information they do not or cannot know. Further, it may be that certain types of claims, such as civil rights and antitrust claims, are more disadvantaged by this preference than others, suggesting that the doctrine needs to be recalibrated to better serve the interests of justice more evenly across different types of cases.

The full-text version of this Article may be downloaded by visiting