Today, Public Citizen, working with co-counsel at Thomas & Solomon LLP of Rochester, N.Y., and
O’Hara, O’Connell & Ciotoli of Fayetteville, N.Y., filed a petition to appeal the class certification denial in Roach v. T.L. Cannon Corp., a wage-and-hour class action. The appeal will be among the first to test the scope of the Supreme Court's recent decision in Comcast v. Behrend, which we've discussed previously on the blog here and here.
Plaintiffs are employees at Applebee’s
restaurants who were not paid wages to which they were entitled under
state and federal law. In 2010, Plaintiffs sued the company that owned
and operated the restaurants and sought to proceed in a
class action. Even though the plaintiffs presented evidence that
defendants’ uniform policies and practices – such as a policy of docking
employees for rest breaks they had not taken – led to the wage law
violations, the district court denied class certification two weeks ago,
ruling that after Comcast,
a class action cannot be maintained whenever monetary relief must be
calculated on an individual basis for each member of the class.
On
behalf of the plaintiffs, Public Citizen filed a petition today for permission
to appeal to the Second Circuit under Rule 23(f). Our petition
argues that the district court’s rule, if accepted, would dramatically
reduce the availability of class actions, because there are many types
of cases in which each member of the
plaintiff class is entitled to a different amount of damages. Examples are easy to think of: for
instance, in many employment cases, the employer is alleged to have withheld
overtime but the amount of overtime that each employee worked (and therefore
the amount owed to each) differs. Damages could also vary among consumers
injured to different degrees by the same product defect, or employees who
suffered different types of harm as a result of a single discriminatory
employment practice. The
district court’s decision reads the Comcast decision too broadly, the petition argues, and conflicts with the widespread and
long-standing view of the courts of appeals that a class action for
damages may sometimes be maintained based on a common theory of
liability notwithstanding the need for individualized damages
calculations. Not surprisingly, pleas to read Comcast broadly are already cropping up in defendants' briefs around the country. Let's hope we can stem the tide.
A group of organizations including the Union of Concerned Scientists, Breast Cancer Fund, and Safer Chemicals, Healthy Families yesterday sent a letter to major retailers asking them to phase out the use of more than 100 chemicals used in hundreds of products, including wrinkle-free clothes, shampoos, sofa cushions, and food packaging. The retailers include Walmart, Kroger’s, Safeway, Home Depot, and Best Buy. USAToday has the story. The website of Safer, Chemicals, Healthy Families has details about the chemicals and their letter campaign.
A good bit of important congressional legislation is justified under the Constitution's so-called Spending Clause. Key programs in the environmental, education, and public benefits areas, for instance, are Spending Clause programs. The idea of much of this legislation, put simply, is that the legislation offers money to states to implement joint federal-state programs, and, if a state decides to participate, it is bound to conditions imposed by legislation if those conditions are clearly expressed in the legislation's text.
But there are limits to the Spending Clause power beyond the clarity requirement. Coercion of a state is also unacceptable. In its recent health care ruling, National Federation of Independent Business v. Sebelius (NFIB),
the Supreme Court held (7-2) that the Affordable Care Act's medicaid
expansion unconsitutionally coerced the states to accept the expansion
and thus offended the Spending Clause. Some
observers think that the Court's Spending Clause holding calls into
question the constitutionality of a fair amount of existing Spending Clause
legislation and takes off the table some federal-state programs that
otherwise might have been enacted in the future.
As we had noted shortly after the Supreme Court's ruling, law professor Sam Bagenstos has taken a fairly narrow view of the ruling. He has now published his views in an article, The Anti-leveraging
Principle and the Spending Clause After NFIB, 101 Geo. L. J. 861 (2013). Here is the abstract:
This Article offers an initial assessment of the Supreme
Court’s Spending Clause holding in National Federation of Independent
Business v. Sebelius (NFIB), which addressed the constitutional
challenge to the Affordable Care Act. As Justice Ginsburg pointed
out, NFIB marks “the first time ever” that the Court
has held that a spending condition unconstitutionally coerced the
states. The implications of that holding are potentially massive, and some
of the language in the decision, if read broadly, would seriously
threaten the constitutionality of a broad swath of federal spending
legislation.
Notwithstanding some of the Court’s language, this Article contends that
the case is not best read as rendering federal spending conditions
unconstitutional simply because they are attached to large amounts of
federal money, change the terms of participation in entrenched cooperative
programs, or tie together separate programs into a package deal. Rather,
Chief Justice Roberts’s pivotal opinion is best read as adopting an “anti-leveraging
principle” that will find coercion only where all three of these
conditions are present at the same time. The anti-leveraging principle
both makes the most sense of what the Chief Justice actually said
in NFIB and does a better job of accommodating the relevant
constitutional values than do plausible alternative readings of the
case. Although that principle threatens the constitutionality of far fewer
conditional- spending laws than do those alternative readings, it raises
challenging ques- tions about the constitutionality of certain spending
conditions. And it gives states an important new tool in negotiations with
federal administrators.
The Class Action Fairness Act of 2005 (CAFA) was sold to Congress in large part on the argument that state courts were abusing the class action--for instance, by certifying class actions that should not have been certified--and harming the interests of law abiding corporations that do business nationally. CAFA sought to remedy this alleged problem by bringing most class actions that involve parties from more than one state into federal court.
The Supreme Court issued its first CAFA decision recently in Standard Fire Insurance v. Knowles, which held that a named plaintiff's stipulation that the plaintiff class is
seeking less than CAFA's minumum jurisdictional
amount ($5 million) does not preclude a federal district court from assuming
jurisdiction under the Act. (For more on Knowles go here.) The briefing of the defendant and its amici in Knowles sought to take advantage of CAFA as anti-state-court-abuse legislation. For instance, one of the early headings in the defendant's Supreme Court opening merits brief reads: "CAFA Expanded Federal Diversity Jurisdiction To Address Precisely The Class Action Abuses Exemplified By This Case."
The
Supreme Court heard five cases involving class actions this term. One
of these cases, Standard Fire Insurance Company v. Knowles, brought the
Class Action Fairness Act to the Court for the first time. Petitioner
insurance company and its numerous business-interest amici repeatedly
claimed before the Court that "state court class action abuses" should
justify removal of the case (which was based on state law and filed in
state court) to federal court.
The charge of "state court class
action abuses" echoes the same rhetoric that CAFA's supporters used in
their ultimately successful efforts to pass the legislation. Hyperbolic
assertions of a "flood of state court class actions" in which
plaintiffs' lawyers were "abusing" the limits of diversity jurisdiction
to keep cases in state court, and state courts were "abusing" the class
action device by granting "drive-by" class certifications, fill the
pages of CAFA's legislative history.
Unfortunately for the
quality of the debate, then and now, no current data and very little
past data about class actions are readily and publicly available, for
federal or state courts. In other words, courts in the United States
offer no data on such basic questions as the number of cases filed as
class actions, the percentage of cases designated as class actions that
are eventually certified as such, or the ultimate disposition of such
cases.
To be sure, the herculean efforts of the Federal
Judicial Center, the California Office of Court Research, and private
academic researchers have resulted in the compilation of databases that
provided partial answers to some of these questions. But these limited
efforts are well beyond the resources and skill available to the public,
the press, and even to most policy-makers and the Court.
What
does the lack of baseline data on class actions mean? A wealth of
psychological research has shown that human cognition and judgment are
subject to a variety of heuristics and biases. For example, the mantra
of "state court class action abuses" has a "priming effect" making it
easier to see or imagine such "abuses." Further, the mind automatically
attempts to create a coherent story out of the information it has, even
if that information is incomplete or invalid. This manifests itself in
many ways, including the "anchoring effect," the "availability
heuristic," and the "representativeness heuristic," which are exploited
by those spreading the myth of "state court class action abuses." Even
if a person knew the base rate of class action filings or dispositions,
for example, the "representativeness heuristic" would make it difficult
to avoid making judgments about class actions based on negative
stereotypical anecdotes. Without such base rates available at all, it
will be almost impossible. One can only hope that the Court will resist
the lure of class action mythology as it considers the five class
action cases pending this term.
A recent post explained that many federal agency health and safety regulations must be sent for review to the Office of Management Budget (OMB), where they can be delayed or die at OMB's Office of Information and Regulatory Affairs (OIRA).
Sometimes regulations emerge from OIRA looking different from what they looked like when they arrived. The Center for Effective Government has just issued this report that focuses on OIRA's recent watering-down of an important food safety rule, but goes on to discuss OIRA's enormous power more generally. Here's a summary:
Recently
disclosed documents show that the Office of Information and Regulatory Affairs
(OIRA) weakened a proposed Food and Drug Administration (FDA) food safety rule.
During the regulatory review process, OIRA removed important safety testing
requirements from the "preventative controls" rule, which were
intended to prevent foodborne pathogens from entering the food supply.
Unfortunately, this is nothing new. OIRA has a long track record of changing
the draft rules it reviews, often weakening them to appease regulated entities.
In this case, the public was made aware of the rule revisions only because FDA
followed the requirement to disclose changes made during OIRA review.
Last Friday, Paul Levy posted on the Michigan Court of Appeals' new ruling, Thomas Cooley Law School v. Doe, concerning the rights of anonymous on-line critics to retain their anonymity during litigation. Karen Sloan has now written this article providing more details on the ruling and quoting Paul.
Last Friday, the National Highway Traffic Safety Administration issued its 2011 National Occupant Protection Use Survey (NOPUS). The agency explains that
"at any given daylight moment across America, approximately 660,000
drivers are using cell phones or manipulating electronic devices while
driving, a number that has held steady since 2010. According to separate
NHTSA data, more than 3,300 people were killed in 2011 and 387,000 were
injured in crashes involving a distracted driver" (emphasis added). Read the agency's press release for more information.
In this SCOTUSblog post, Adam Chandler has repeated a study he did five years ago of cert-stage amicus filings at the U.S. Supreme Court. Chandler took a look at every cert.-stage amicus brief filed between May 19, 2009, and August 15, 2012. He found that "the [U.S.] Chamber [of Commerce] has cemented its status as the country’s preeminent
petition-pusher, and the rightward tilt of the most frequent filers has
grown even more pronounced."
Chandler has produced this astounding chart, which shows the Chamber leading the pack, with 54 cert-stage amicus briefs. The National Association of Criminal Defense Attorneys is in second place with 41. The rest of the top 10 is occupied by groups generally on the legal political right, or, at least, groups that typically support business interests and oppose the positions taken in the Court by civil-rights or consumer-rights plaintiffs. The top ranks include the Pacific Legal Foundation, Cato, the Defense Research Institute (DRI), and the NAM. Of the 16 groups that have filed 10 or more cert-stage amicus briefs during the period studied, only two are considered liberal (the criminal defense lawyers already mentioned and AARP, which is ranked 11).
Let's assume that cert-stage amicus briefs matter, at least to some degree. Many court watchers think they do. Chandler cites evidence indicating that they do. So, where are the liberal groups, such as the ACLU, the National Employment Lawyers Association, and Public Citizen? Is it a matter of resources? To be sure, many liberal legal organizations can't match the resources of the Chamber of Commerce. Or is it tactical -- that liberal groups would rather the current Court not get its mitts on cases that individual aggrieved litigants are taking up? A combination of the two? Or something else entirely?
Congress crafts the outlines of federal regulation -- sometimes providing little direction and other times giving more specifics -- and delegates the rest of the job to expert federal agencies, which are duty bound to protect the people's interests in health, safety, and economic well-being (taking into account feasibility, costs and benefits, federalism concerns, etc.). In promulgating regulations, the agencies are required to take account of public comments, and their work may be reviewed by courts to assure its legality. That's how the system works, right? Well, not really. Before most important regulations are issued, they must be reviewed by the Office of Management & Budget, more specifically that agency's Office of Information and Regulatory Affairs (OIRA). And they may be delayed for years or die at OIRA.
Law professor Cass Sunstein, who ran OIRA during President Obama's first term, has just published a book about what he did at OIRA called "Simpler: The Future of Government." Here's an excerpt from Sunstein's introduction:
From 2009 to 2012, I ended up as administrator of OIRA. In that
position, I helped to oversee the issuance of nearly two thousand rules
from federal agencies. Under President Obama’s direction, I promoted
simplification, including the use of plain language, reductions in red
tape, readable summaries of complex rules, and the elimination of
costly, unjustified requirements. I argued in favor of the use of
“nudges”—simple, low-cost, freedom-preserving approaches, drawing
directly from behavioral economics, that promise to save money, to
improve people’s health, and to lengthen their lives. Also under
President Obama’s direction, I promoted a disciplined emphasis on costs
and benefits, in an effort to ensure that the actions of government are
based on facts and evidence, not intuitions, anecdotes, dogmas, or the
views of powerful interest groups. In this book I describe the large-scale transformation in American
government that took place while I was OIRA administrator. I explore
initiatives designed to increase simplicity—some now in effect, others
on the horizon, still others for the distant future. As we will see,
initiatives of this kind can be used not only by governments all over
the world but by countless private organizations as well, including
businesses large and small, and indeed by all of us in our daily lives.
Each of us can benefit from simplicity, and all of us can make things
simpler.
Go here or click on the embedded video below to hear Sunstein discuss the book.
In his revealing book, Sunstein tells us why [regualtions languished and died at OIRA]: It is because he,
Sunstein, had the authority to “say no to members of the president’s
Cabinet”; to deposit “highly touted rules, beloved by regulators, onto the shit list“;
to ensure that some rules “never saw the light of day”; to impose
cost-benefit analysis “wherever the law allowed”; and to “transform
cost-benefit analysis from an analytical tool into a “rule of decision,”
meaning that “[a]gencies could not go forward” if their rules flunked
OIRA’s cost-benefit test.
Assertive intrusions into agencies’ prerogatives — prerogatives given
by law to the agencies, not to OIRA — were necessary, Sunstein insists,
because otherwise agency decisions might be based not on “facts and
evidence,” but on “intuitions, anecdotes, dogmas, or the views of
powerful interest groups.” In Sunstein’s account, OIRA’s interventions
also ensured “a well-functioning system of public comment” and
“compliance with procedural ideals that might not always be strictly
compulsory but that might be loosely organized under the rubric of ‘good
government’.” No theme more pervades Sunstein’s book than the idea that
government transparency is essential to good regulatory outcomes and to
good government itself.
The deep and sad irony is that few government processes are as opaque
as the process of OIRA review, superintended for almost four years by
Sunstein himself. Few people even know OIRA exists; in fact, the
adjective that most often appears in descriptions of this small office
is “obscure.” Even fewer people know that OIRA has effective veto power
over major rules issued by executive-branch agencies and that the
decision as to whether a rule is “major” — and thus must run OIRA’s
gauntlet before being issued — rests solely in OIRA’s hands. Most
people, I would venture to guess, think that the person who runs, say,
the Environmental Protection Agency is actually the Administrator of the
Environmental Protection Agency. But given OIRA’s power to veto rules,
the reality is otherwise: In the rulemaking domain, the head of OIRA is
effectively the head of the EPA.
