Because arbitration
If you’ve ever felt that Uber costs more than it should, you can forget about fixing that in court. Under a new ruling by the Second Circuit, no matter how good your claim and regardless of how much money it involves, Uber can beat you every time.
Every. Single. Time.
You will recall that two years ago Volkswagen got in $14.7 billion worth of class action trouble for rigging software in its diesel cars to fake compliance with U.S. emission standards. The
We now learn that Volkswagen didn’t act alone. Continue Reading Dieselgate — Antitrust Edition
The question of who belongs in a class action deserves a lot of think about it time. A good class definition may save class plaintiffs lots of trouble in winning certification of the class — a do-or-die event in the life of the class action.
A new ruling by the Second Circuit highlights that true fact. In re Petrobras Securities, No. 16-1914-cv (2d Cir. July 7, 2017). Continue Reading Who Belongs in Class?
Arise, ye claimants
For more than 40 years, you could wait (and wait and wait) to decide whether or not to opt out of a class action in order to pursue your own individual case. You didn’t have to squawk until (1) you got formal notice of your right to remove yourself from the class and (b) you failed to timely respond by saying “I opt out. Leave me alone. I would rather do it myself! More money for me!!”
But the thing that gave you leisure — American Pipe tolling — went partially poof last week. The Supreme Court ruled 5-4 (with Gorsuch in the role of Scalia) that tolling may apply to a statute of “limitations” but doesn’t stop the tick-tock under a statute of “repose”. California Public Employees’ Retirement Sys. v. ANZ Securities, Inc., No. 16-373 (U.S. June 26, 2017).
Wake up, people! You may need to move fast.
Continue Reading Opt-Outs on Parade
Location
The place of suit matters a lot in civil cases. Suing at home helps the plaintiff — by keeping her costs low, giving her comfort that local judges and juries will give her fair treatment, and throwing out-of-town defendants off balance. All of that bigly boosts the plaintiff’s chances of success.
But a trio of recent U.S. Supreme Court rulings promise to make plaintiffs’ home fields more like patches of weeds than acres of sweet verdance. Continue Reading Into the Lions’ Dens
In the last quarter-century and more, no current member of the Supreme Court tried a lawsuit of any kind to a judge or jury. Almost none of the justices has ever tried a civil case to verdict. And before their honors became appellate judges, only one of their number served as a full-time trial judge.
Does the justices’ nearly total lack of trial-lawyer chops matter? Has the almost utter absence of actual trial experience in fact degraded the quality of civil justice? And will confirming the nomination of a former trial lawyer like Neil Gorsuch make a difference?
Continue Reading A Trial Lawyer for the Supreme Court?
A question of numbers
Class actions can save courts and parties a lot of time and money. But what if the class includes just a few members? How much time and money will the class action device save then?
The Third Circuit grappled with that “numerosity” question in In re Modafinil Antitrust Litig., 837 F.3d 238 (3d Cir. 2016).
The answer it gave — that a class with 20+/- mostly big members may not pass the test — could reshape how courts handle antitrust cases worth billions of dollars.
Election results
Many voters believed that the major U.S. political parties offered them two disappointing choices for President this year.
Although their reasons for disparaging their options varied from voter to voter, a rough consensus emerged about the candidates’ relative riskiness. While one had served in public office for decades, the other had never done any government work. At least in terms of familiarity with the job, the first seemed safe, the other risky.
But in the Electoral College, the “safe” one lost, and the “risky” one prevailed.
Why?
You’ll have many thoughts on how to answer that question. You can find plenty of opinions anywhere you look.
But as a trial lawyer, I have a particular interest in one possible, if partial, explanation:
Does a cognitive tendency in our brains push us towards risk (or perhaps away from it) when we face a set of alternatives that we perceive as negative? Continue Reading Pessimism Promotes Gambling in Decision-Making
Possible shift
In 2014, the ABA Journal called the Fifth Circuit the “nation’s most divisive, controversial and conservative appeals court”. Liberal blog Jezebel deemed it “exceedingly conservative”. Even The Wall Street Journal described the court this year as “conservative-leaning”.
But in a recent case over limits on voting rights, the court ruled for the left-leaning opponents of the restrictions. And last week, the court sitting en banc voted 11-5 to revive a $250+ million class action. Torres v. S.G.E. Management, L.L.C., No. 14-20128 (5th Cir. Sept. 30, 2016) (en banc).
Has the court’s center of gravity shifted?
Rhetoric and flattery
Bryan Garsten, Yale professer of Political Science, wrote a book in 2006 on rhetoric — Saving Persuasion: A Defense of Rhetoric and Judgment — and in it said this:
Aristotle argued that when citizens sat as jurors, they listened with an ear for gratification . . . and let their own feelings of pleasure or pain . . . distort their judgment. He accused jurors of wanting to be charmed by charismatic speakers.
Professor Garsten contrasted Artistotle’s disdain for rhetoric that aimed mainly to flatter the decision-makers — the ancient Greek deemed it the “judicial” kind — with his greater faith in “deliberative” rhetoric.
How did they differ? As Professor Garsten explained:
What seems to have led a deliberator to guard against succumbing to irrelevant appeals in this account was that he was considering matters that affected his own interests. Having his own good at stake exerted an influence on the direction of his thought, perhaps acting as an anchor pulling him back to the matter at hand, as a standard against which he could easily measure the worth of various arguments and feelings, and as a motivation to pay attention. Because he was an interested party, a deliberator applied his interest as a criterion in making his judgments, basing his judgments on his determination of what was good for him.
The presidential debate
On the eve of a high-stakes presidential debate, the dichotomy between judicial and deliberative rhetoric raises a question about what the debaters should aim for — flattery or substance?
Professor Garsten offered more than a hint over the weekend in an op-ed he wrote for The Wall Street Journal. The Journal titled it “The Sad State of American Debate”.
Professor Garsten started by noting that the “forum itself is flawed” as a means for debate of substantive issues. In the balance of the piece, he explained that the impending face-off between Hillary Clinton and Donald Trump will “float free from the pressures of our governing institutions” and will therefore fail to produce something that “is actually a part of self-government.”
What does that imply about the debate? It suggests that the true merits of concrete policy choices will get little play precisely because the debate involves more of a judicial setting than a deliberative one. If voters perceive that their votes have no direct effect on their “own good”, their choices will likely depend much more on the candidates’ ability to flatter, charm, gratify, make irrelevant appeals to, and evoke feelings of pleasure or pain in the audience.
What to look for
When you watch the debate tonight (or snippets of it later when analysts chew it over), consider whether and how much the candidates adopted a strategy of flattering voters. Did they assure the voting public of its greatness, whether inherently as true Americans or as a result of their willingness to strengthen the American experiment through diversity? Did they project respect of and express affection for some or all of their fellow citizens? Or did they parse the objective merits of particular policy choices?
In Napoleon Dynamite (2004), Napoleon’s friend Pedro ran a long-shot campaign for Class President against cheerleader Summer. After Napoleon wowed the class with a dance routine, Pedro ended his speech with this:
Vote for me, and all your wildest dreams will come true.
(Pedro won.)
If Pedro’s pitch sounds familiar, Professor Garsten has reminded us, it’s hardly new.