Prof. Zimmerman Urges Veterans Court to Use Class Actions Before Adopting Formal Rule

By Professor Adam Zimmerman
Gerald Rosen Fellow

I was among those who filed an amicus brief--on behalf of the nation's leading scholars in administrative law, federal courts and civil procedure--in Veteran's Court today arguing how it may conduct class actions.

By way of background, in April, the Federal Circuit issued a pathbreaking decision holding that veterans could bring class actions in veterans courts, reversing over 30 years of precedent. Before that, veterans groups lacked meaningful ways to challenge systemic problems at the VA. Relying, in part, on our earlier amicus brief and our research in Inside the Agency Class Action, 126 Yale L.J. 1634 (2017), the Federal Circuit concluded that the nation's veterans courts indeed had power to hear class actions to improve efficiency, consistency and fairness in their own proceedings.

As a result, the veterans court has now begun to consider adopting formal rules to aggregate cases, including class actions. At the same time, veterans groups have already started filing class actions. So, the Veterans Court invited amici, including us, to weigh in on whether it can hear class actions before it adopts a formal rule to do so. Because formal rules often take several years to complete, how the veterans court proceeds now could have a dramatic impact on the speed in which it is able to provide justice for thousands of the nation's veterans.

Our brief, written with the Yale Law School Veterans Legal Services Clinic, surveys a range of different courts--federal courts, legislative courts and administrative tribunals--to show how they have experimented with class actions. In so doing, we show how many different courts gained invaluable experience, and swiftly resolved large numbers of pending cases, by adopting aggregate procedures, on a case by case basis, before adopting a formal rule to do so.

Civil Suit Against the Trump Campaign Just Might Succeed

By Professor John T. Nockleby

This op-ed originally appeared in the San Francisco Chronicle.

Three American voters have filed a civil lawsuit against the Trump campaign and onetime campaign adviser Roger Stone that has the potential to transform the investigations of Trump’s connections to Russian hackers during the 2016 presidential election. This lawsuit might succeed where others have not in exposing the Trump campaign’s alleged involvement in disseminating the emails stolen from the servers of the Democratic National Committee.

The lawsuit alleges what amounts to a quid pro quo agreement between the Trump campaign and the Russian government to secure Trump’s election in exchange for upending U.S. policy toward Russia.

While the U.S. Department of Justice and Congress are also investigating Russia’s interference in our election and potential Trump campaign or associate involvement, there are a number of critical differences between the FBI’s criminal investigation and the conspiracy lawsuit.

First, because it is a civil conspiracy as opposed to a criminal case, there will be a lower standard of proof to show agreement between the Russians and the Trump team. The plaintiffs would generally try to show this agreement through circumstantial evidence.

Read the complete op-ed.

Some Thoughts on Microsoft v. Baker

By Professor Adam Zimmerman

The big story in Microsoft v. Baker -- the Supreme Court's latest decision involving class actions -- is the question it did not reach today: Do lead plaintiffs have standing to continue pursuing a class action after their individual claims go away?

By way of background, there were two issues in Microsoft v. Baker. The one most people are familiar with is a highly technical question. Whether the plaintiff's strategy in the case--which was to voluntarily dismiss the case with prejudice in order to appeal the denial of class certification--is an impermissible end-run around Rule 23(f)? Rule 23(f) was created nearly two decades ago to permit appellate courts to review whether or not a district court properly certified a class action. Because the decision to certify a class action -- or not -- was so momentous, before Rule 23(f), a grant often would result in a quick settlement, while a denial would often spell the "death knell" of the case. The class action rules were amended in 1998 to give the appellate courts power to hear class action cases in their discretion, even though the appellate courts usually won't hear a case until after the lower court issues a final judgment. Microsoft involved what the Court felt was an improper workaround that process. Rather than rely on 23(f), plaintiffs could voluntary dismiss their claims, receive a final judgment and then appeal the denial of class certification.

With Kindred, Supreme Court Signals It Will Stand By Arbitration Contracts that Limit Private Parties' Recourse in State Courts

By Professor Adam Zimmerman

This week, the Supreme Court rejected a Kentucky rule that prevented people from entering into arbitration with general power of attorney agreements. The Kentucky Supreme Court last year found that such agreements violated its constitutional guarantee to court access and held people only could only assign and waive those rights when a power of attorney contract expressly said so. The US Supreme Court found that the state rule unlawfully "single[d] out" arbitration agreements for "disfavored treatment" and violated the Federal Arbitration Act, which prevents states from discriminating against arbitration agreements.

In some ways, the impact of this decision is narrow. The Court emphasized that states could still prevent people from entering into contracts to arbitrate under "generally applicable contract defenses," like fraud. They just cannot adopt rules that only apply to arbitration. The Court took pains to emphasize that this Kentucky rule was unique because it specifically singled out arbitration as something that had to be expressly provided for, but not other forms of alternative dispute resolution, like settlement discussions or mediation. Said the Court in a footnote, "[m]ark that as yet another indication that the court’s demand for specificity in powers of attorney arises from the suspect status of arbitration rather than the sacred status of jury trials."

In Kindred, Supreme Court to Revisit Mandatory Arbitration Clauses

Professor Adam Zimmerman offers his thoughts on Kindred Nursing Centers v. Clark, scheduled for oral arguments before the U.S. Supreme Court on Wednesday, Feb. 22.

Kindred involves one of the latest challenges to mandatory arbitration clauses that bar class actions.  The Supreme Court in a series of cases since Concepcion has broadly permitted corporations to require that consumers enter arbitration agreements waiving rights to bring class actions in any forum.  But long before Concepcion, the Court also drew an important distinction for parties challenging arbitration agreements.  In Buckeye Check Cashing, the Court said a party who challenges the terms of an agreement that includes an arbitration provision has to raise that problem in the arbitration itself.  But when a party challenges whether or she entered into an arbitration agreement at all, the Court suggested that's something for courts to decide under state law.  

Nursing home cases raise that problem because many people in nursing homes may rely on someone else to enter into the nursing home contract using a power-of-attorney.  The lower court found that, as a matter of state law, it could decide whether those mandatory arbitration agreements signed by those using a power of attorney were invalid and ultimately found they were.  The Supreme Court will now decide whether, under the logic of cases like Concepcion, the Kentucky Supreme Court should have enforced the arbitration agreement under the Federal Arbitration Act, or instead, whether a party can raise state law challenges to entering such an agreement. 

Ten Years of Honoring Champions of Justice

By Professors Anne Bloom and John T. Nockleby

As law professors, we've noted how frequently first-year law students mistake good lawyering with being unpleasant toward one’s adversaries. They are often surprised to learn that litigators who routinely oppose each other in court can be quite friendly and not uncommonly have the highest regard for each other.

Loyola Law School created its Civil Justice Program in 2005 to both facilitate a better public understanding of the civil justice system and to honor its finest practitioners. Each year, the program holds a Tribute to the Champions of Justice dinner to recognize lawyers who make significant contributions to the civil justice system through their professional excellence, technical proficiency and uncompromising integrity. Tonight, it will soon host its 10th-annual installment of the honors.

The list of past honorees reads like a who's who list of the Southern California trial bar. Past recipients include: 2013 – Paul R. Fine ’72, founding partner, Daniels, Fine, Israel, Schonbuch & Lebovits, LLP and Christine D. Spagnoli ’86, partner, Greene Broillet & Wheeler, LLP; 2012 – Gary M. Paul ’74; Waters, Kraus & Paul, LLP and David J. O’Keefe, Bonne, Bridges, Mueller, O'Keefe & Nichols; 2011 – Michael J. Bidart, Shernoff Bidart Echeverria Bentley LLP and Donna M. Melby, Paul Hastings LLP; 2010 – Samuel A. "Skip" Keesal Jr., Keesal, Young & Logan and Brian Panish, Panish Shea & Boyle; 2009 – Bob Baker, Baker Keener & Nahra LLP and Gretchen Nelson, Kreindler & Kreindler LLP; 2008 – Raymond Boucher, Khorrami Boucher, LLP and John Collins, founding partner of Collins, Collins, Muir & Stewart LLP; 2007 – Thomas Jerome Nolan, Skadden Arps Slate Meagher & Flom LLP and Mark P. Robinson Jr., Robinson Calcagnie Robinson Shapiro Davis, Inc.; 2006 – Bruce A. Broillet, Greene Broillet & Wheeler, LLP and Edith Matthai, Robie & Matthai, A Professional Corporation; 2005 – James J. Brosnahan Jr., Morrison & Foerster LLP- San Francisco and Thomas V. Girardi ’64, Girardi | Keese.

This year is the 10th anniversary of Loyola's annual tribute. To mark the anniversary, the dinner will honor the previously named Champions of Justice, plus announce two new ones: Louis H. "Duke" DeHaas of La Follette, Johnson, DeHaas, Fesler & Ames and William Shernoff of Shernoff, Bidart, Echeverria & Bentley LLP. The dinner will be held on Thursday, Oct. 30 at the Beverly Hilton.

Loyola's Civil Justice Program on 'Injury as Cultural Practice'

By Visiting Professor Anne Bloom
Assistant Director, Civil Justice Program

Last week, the Civil Justice Program was excited to host an international symposium on "Injury as Cultural Practice." The conference featured presentations from an interdisciplinary group of scholars including lawyers, social scientists, anthropologists and social theorists. I was thrilled to collaborate with David Engel, SUNY Distinguished Service Professor at SUNY Buffalo Law School, in organizing and directing the program.

The purpose of the symposium was to continue a dialogue that began last spring on how the meaning of legal injury is constructed through social and cultural practices. For the symposium, we broke the topic into four parts, with three panels on the first day of the symposium and a fourth on the second day.

The first panel on Day One discussed "What Counts as an Injury?" Mary Anne Franks, Associate Professor of Law at University of Miami, led things off with a presentation on "Injury Inequality." Franks argued that the kinds of injuries that affect more powerful members of society tend to be overstated. David Engel presented next with a paper on “Chairs, Stairs, and Automobiles: The Interpretation of Injury and the Absence of Claims.” (One of the many things I learned from this presentation is that chairs are not particularly good for our spines -- still, no one considers the pain that results an "injury").

I presented next with my co-author, the legendary Marc Galanter, Professor of Law Emeritus from the University of Wisconsin Law School. Our paper was called “Good Injuries” and examined the line between "injury" and "enhancement" in contexts like tattooing and plastic surgery. The symposium participants then heard from Sagit Mor, Assistant Professor of Law at Haifa University in Israel, who presented on how injuries are understood from a disability perspective. Loyola's own John Nockleby was next with a fascinating historical paper on the different ways that law has responded to the harm caused by natural disasters.