Procedure

Subscribe to Procedure via RSS

Banned ItemsIn 2016, despite contracts that mandate one-on-one arbitrations, consumers will likely gain the right to bring claims against banks, credit card issuers, and other lenders in class actions. The new rule, which the Consumer Financial Protection Bureau announced on October 7, 2015 it will probably issue next year, will partially reverse a string of recent Supreme Court decisions that made class-banning arbitration clauses broadly enforceable.

The action by the Bureau will vastly raise the stakes for disputes involving practices affecting large numbers of consumer finance customers.
Continue Reading Banning Bans on (Some) Class Cases

The Macondo spill also spawned securities fraud claims
The Macondo spill also spawned securities fraud claims

Modest decision

In Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), a 5-4 majority — over an extraordinary joint dissent by Justices Ginsburg and Breyer — had to work hard to make a modest ruling. The Court held that plaintiffs seeking class treatment under Rule 23(b)(3) sometimes may have to plausibly link their theory of liability (the misconduct that caused damages) to the theory of class-wide damages (the estimate of the damages flowing from the misconduct) in order to obtain class certification.

I say emphatically that the Court did not hold that any plaintiff class seeking certification under Rule 23(b)(3) must prove damages on a class-wide basis. It said only that if a class cannot obtain class certification without establishing class-wide damages, then by golly it must show that it can establish class-wide damages.

I should know; I briefed and argued the case for the plaintiff class.
Continue Reading Fifth Circuit Misapplies Comcast, Affirms Class Anyway

How may terabytes in a cargo container?
How may terabytes in a cargo container?

Rulings on 28 U.S.C. § 1782

Since mid-July 2015, federal courts of appeals have decided at least five cases involving a federal statute that allows “any interested person” to apply for an order requiring a party “found” in a judicial district to produce discovery “for use” in a foreign proceeding. 28 U.S.C. § 1782(a). In this post, I will review the facts and holdings of the cases.
Continue Reading In Seventeen Hundred and Eighty-Two, Discovery Can Sail the Ocean Blue

Apparently you can take it too far.
Apparently you can take it too far.

No privilege?

A district judge ruled that Kellogg Brown & Root could not withhold the results of a probe that it had conducted, with the help of lawyers, into allegations that it defrauded the U.S. Military in Iraq by inflating costs and paying kickbacks. The judge reasoned that KBR made inquiry and put together a report of its findings not for the purpose of getting legal advice — in which case the attorney-client privilege would apply — but “to try to comply with KBR’s obligation to report improper conduct to the Department of Defense” — in which case the privilege would not apply. “Firms Can Hide Routine Probe Details by Using Lawyers, D.C. Circuit Holds“, July 27, 2014.Continue Reading Catch a Waive

WIth apologies to The Clash
With apologies to The Clash

The class-action variety of plaintiffs’ lawyer abhors the federal Arbitration Act.

You can see why. The Supreme Court has turned the FAA into a class action killer. See AT&T Mobility LLC v. Concepcion, 563 U.S. 321 (2011) (holding that FAA pre-empts state law against bans on class treatment of claims),  and Am. Express Co. Italian Colors Restaurant, 133 S. Ct. 2304 (2013) (holding that FAA requires enforcement of class action ban even if it thwarts claimants’ ability to vindicate their rights).

But a new FAA ruling by the Second Circuit may afford some comfort to other plaintiffs’ lawyers. Not a lot. Some.
Continue Reading Stay or Go?

Screen Shot 2015-07-29 at 10.46.19 PMTexas Bar Top 10 Badge.pdfWho says law review notes don’t matter?

A new decision proves that what students write in law journals can matter a great deal.

In Mullins v. Digital Direct, LLC, No. 15-1776 (7th Cir. July 28, 2015), the Seventh Circuit all but adopted a Yale law student’s analysis of, and rationale for freeing class action law from, a godawful “ascertainability” test that threatens to kill class cases involving low-dollar claims. A pair of other circuits had either championed the standard since creating it in 2012 (the Third Circuit) or quietly embraced it (the Eleventh).

Both the Yalie and the panel deserve our thanks.
Continue Reading Can We Kiss Ascertainability Goodbye?

Remain calm
Remain calm

Changing the status quo

Plaintiffs’ lawyers tend not to count patience as a virtue.

Thirty years ago, I showed a busy plaintiffs’ lawyer a new Fifth Circuit decision that took three paragraphs to explain why the district court should have let the plaintiffs amend their complaint.

Those judges need…