Prof. Nagareda Posts Essay on Class Certification

Professor Richard Nagareda (Vanderbilt) has recently posted an Essay entitled Common Answers for Class Certification. Here is the abstract:

This Essay for the Vanderbilt Law Review En Banc roundtable on Dukes v. Wal-Mart Stores, Inc. focuses on new developments in the law of class action certification. Prior to Dukes, the federal appellate courts had been gravitating toward a consensus on the parameters for judicial rulings on class certification. Under this emerging consensus view, the court is obligated to determine – under a preponderance-of-the-evidence standard and with no preclusive effect on the merits – whether the pertinent requirements for class certification have been satisfied. But the court has no authority to conduct a free-floating inquiry into the plaintiffs’ likelihood of success on the merits, unrelated to a class certification requirement. Dukes unsettles this emerging consensus, positing that courts may not withhold class certification as long as plaintiffs put forward a triable case as to the existence of a common, class-wide course of misconduct by the defendant. Under this view, the court may not determine whether the alleged class-wide course of misconduct more likely than not exists – even for the limited purpose of ruling on class certification – for fear of intrusion into the role of the fact finder at trial.

This Essay first explains why Supreme Court review is warranted in Dukes, above and beyond the usual concern over splits among the federal appellate courts. The Essay then observes that Dukes is part of a larger category of cases in recent years that involve class certification disputes centered on aggregate proof – in Dukes, primarily an analysis of Wal-Mart’s hourly work force, said to reveal statistically significant differences in pay and promotions across male-female lines.

The bulk of the Essay spotlights the crucial conceptual error in Dukes: the majority’s confusion between motions for class certification and the motion that really does regulate the relationship between the court and the fact finder (summary judgment). Drawing on illustrations from class certification decisions in securities fraud, antitrust, and RICO litigation, the Essay explains how confusion between class certification and summary judgment can lead to both judicial underreach (as in Dukes) and judicial overreach (as in some decisions from other circuits). Supreme Court reversal in Dukes would lend clarity and consistency to the law of class certification, but in a way that would not cut uniformly for or against either plaintiffs or defendants across the gamut of civil law.

The Essay may be downloaded at http://ssrn.com/abstract=1662620.

Prof. Erbsen Posts Article on Impersonal Jurisdiction on SSRN

Professor Allan Erbsen (Minnesota) has recently posted an Article entitled Impersonal Jurisdiction on SSRN. Here is the abstract:

Constitutional law governing personal jurisdiction in state courts inspires fascination and consternation. Courts and commentators recognize the issue’s importance, but cannot agree on the purpose that limits on personal jurisdiction serve, which clauses in the Constitution (if any) supply those limits, and whether current doctrine implementing those limits is coherent. This Article seeks to reorient the discussion by developing a framework for thinking about why and how the Constitution regulates personal jurisdiction. It concludes that principles animating the emerging field of horizontal federalism—the constitutional relationship between states—should guide jurisdictional rules and instigate sweeping reevaluation of modern jurisprudence. The Article proceeds in three steps: it strips away layers of history and doctrine to present a model for thinking about why constitutional limits on personal jurisdiction may be necessary, shows how the model places personal jurisdiction within a broader context of constitutional law governing horizontal federalism, and considers how analyzing personal jurisdiction within this context challenges pivotal assumptions underlying modern doctrine and canonical understandings of how civil procedure and constitutional law intersect. In particular, the Article questions two pillars of the Supreme Court’s jurisprudence. First, it considers whether the Constitution makes Congress rather than the judiciary the primary institution for regulating jurisdiction in state courts, and thus whether the prospect of diversity jurisdiction and removal to federal court should preempt judicially created due process remedies against jurisdictional overreaching by state courts. Second, it challenges the coherence of the multifactored reasonableness test that courts use to implement due process limits on state authority. More generally, the Article creates a framework for thinking about personal jurisdiction that ties the subject into analogous debates about ostensibly distinct areas of constitutional law and provides a foundation for testing competing normative critiques of modern doctrine. The Article thus generates insights that can reshape a much maligned area of law that routinely confounds courts and scholars.

The Article may be downloaded at http://ssrn.com/abstract=1664173.

En Banc Petition Filed in Cappuccitti v. DirecTV, Inc.

An en banc petition has been filed in Cappuccitti v. DirecTV, Inc., the Eleventh Circuit case in which the panel interpreted the Class Action Fairness Act as not eliminating the requirement that at least one plaintiff have a claim of more than $75,000. The petition is available here.

EDVA Judge Denies Request for Confidential Settlement Terms During DIscovery

An identity theft victim need not disclose to defendant credit company her settlement agreements with three credit reporting agencies and a separate debt collection agency on related claims under the FDCPA and the FCRA, an Alexandria U.S. District Court says. Pennington v. Midland Credit Mgmt. Inc., No. 1:10cv112 (E.D. Va. Aug. 9, 2010).

Second Circuit Finds Personal Jurisdiction Over Online Handbag Counterfeit Seller

Here is the Westlaw synopsis of a recent Second Circuit decision on personal jurisdiction based on Internet contacts, Chloe v. Queen Bee of Beverly Hills, LLC, --- F.3d ----, 2010 WL 3035495 (2d Cir. Aug. 5, 2010):

Background: Trademark owner, a fashion company that sold women's clothing and accessories, brought action against competitor and competitor's employees for violations of the Trademark Act and common law trademark infringement and unfair competition. The United States District Court for the Southern District of New York, Holwell, J., granted employee's motion to dismiss for lack of personal jurisdiction, 571 F.Supp.2d 518, and granted trademark owner's motion to certify the dismissal as final, 630 F.Supp.2d 350. Trademark owner appealed.


Holding: The Court of Appeals, Hall, Circuit Judge, held that employee's single act of shipping a handbag to New York, combined with his employer's extensive business activity involving New York, gave rise to personal jurisdiction over the employee.

Panel of Judges and Practitioners Propose Federal Rule Governing Preservation and Spoliation

ABA's Litigation News contains an article entitled "Is It Time for a Federal Rule on Preservation?" and discusses an proposal by judges and practitioners who served on a panel at the 2010 Civil Rules Advisory Committee Litigation Conference at Duke.

According to the article, the elements of the proposal include:

- general and specific triggers for attachment of the obligation to preserve information, including electronically stored information;
- the scope of the preservation duty, including both time frame and the types of covered data and data sources;
- the form or format in which data subject to preservation should be maintained;
- limitations and guidance for determining the individual database users and data custodians for - whom detailed data must be captured and preserved;
- preservation standards applicable to non-parties;
- limitations as to the duration of preservation duties and their applicability to post-suit records and data;
- the contours of a safe harbor for organizations utilizing formal litigation hold procedures;
- the extent to which internal efforts to ensure and accomplish proper preservation should be protected as work product; and
- the consequences and related procedural requirements applicable in instances of alleged breaches of the preservation duty.

The proposal is available here.

Fourth Circuit Reverses Denial of Motion to Set Aside Default

The case is Colleton Preparatory Academy, Inc. v. Hoover Universal, Inc., --- F.3d ----, 2010 WL 3042441 (4th Cir. Aug. 5, 2010). Here is Virginia Lawyers' Weekly's summary of the case:

A corporation's registered agent failed to forward suit papers, and the 4th Circuit says a district court abused its discretion when it refused to vacate entry of default against the corporation, sued by a private school for roof damage allegedly caused by the company's fire-retardant materials.

Download the PDF of the opinion here.

JPML Sends BP Oil Spill Cases to New Orleans Federal District Court

Here is a copy of the order from today: http://www.jpml.uscourts.gov/Panel_Orders/Recent_Orders/MDL-2179-Transfer_Order.pdf.