Procedural Barriers to Court

  • June 16, 2011
    Guest Post

    By Rochelle Bobroff, Directing Attorney, Herbert Semmel Federal Rights Project, National Senior Citizens Law Center

    In what now sometimes seem like the good old days, when five conservative Justices closed the courthouse doors on plaintiffs seeking to enforce progressive statutes, Justice Stevens could be counted on to protest loudly.  None of the present members of the Court have taken on his role of objecting to the conservative assault on court access to enforce civil rights, consumer protection, and safety net statutes.  Their relative silence on the issue of court access is worrisome. 

    Ever since the conservatives garnered a five vote majority in the early 1990s, the conservative Justices have systematically eroded the ability of private individuals to enforce progressive federal and state laws.  While the four liberals were powerless to stop it, at least Stevens’ dissents understood the destructive force of the denial of court access.  The liberals presently on the Court are not following his lead.  Their opinions are missing the big picture of the importance of preserving the private enforceability of progressive federal laws.

    On Monday in Janus Capital Group, Inc. v. First Derivative Traders, by a vote of 5 to 4, the Court threw out a suit to hold a corporation accountable for lies to stockholders, on the grounds that the corporation only advised and did not have complete control over the corporate entity that published the lies.  Justice Thomas, writing the majority opinion, made no bones about seeking to get rid of citizen suits.  He explicitly stated that because the securities statute had an implied, rather than an express, right of action, the Court would give the right to sue “narrow dimensions.”  He instructed courts to exercise “caution” against the “expansion” of court access.  In addition, he disparaged the federal government for standing up for investors.  He ridiculed the government agency, saying the SEC’s “presumed expertise” was of “limited value” when the government advocated for a right to sue. 

  • May 16, 2011
    Guest Post

    By Reuben Guttman.  Mr. Guttman, a partner at the law firm of Grant & Eisenhofer, heads the firm's whistleblower practice and is founder of the website Whistleblowerlaws, which helps individuals using the False Claims Act to seek compliance with environmental, affirmative action, wage and hour, and "Buy American" requirements. It was cited as an authority by the Chamber of Commerce in its brief in Schindler Elevator Corp. v. U.S. ex rel. Kirk, which the U.S. Supreme Court today issued an opinion. Mr. Guttman is also a Senior Fellow and Adjunct Professor at the Emory Law School Center for Advocacy and Dispute Resolution.

    With the heightened pleading standard established by the Supreme Court in Twombly and Iqbal, it must follow that Plaintiffs are entitled to some accommodation in the manner and methods used to muster the facts now required to properly plead a case. Apparently this is not so.

    In issuing its 5-3 decision (Justice Kagan did not take part in the decision) in Schindler Elevator Corp. v United States, No. 10-188 (May 16, 2011), the Court held that a whistleblower litigating under the Federal False Claims Act (FCA) does not have standing if his or her claims are based on information secured from a Freedom of Information Act (FOIA) request. The FCA precludes whistleblowers from basing claims on government "reports" and in Schindler, the Court had to decide whether the Government’s response to a FOIA request constituted a government report. Justice Thomas opined that because a response to a FOIA request provides information, it must therefore be a "report" within the meaning of the statute. While this may be good news for college students seeking support for the proposition that a one page document suffices as a term paper or report, it is indeed a blow to whistleblowers seeking redress from private contractors that cheat the government.    

    The whistleblower in Schindler, Daniel Kirk, a Vietnam Veteran, claimed that his employer, a government contractor, failed to honor a veterans job preference, which in turn violated a government contract.  In support of efforts to prove his claims, Schindler's wife secured information from the Department of Labor (DOL) through a FOIA request. Mrs. Kirk’s efforts, according to the Court's opinion, proved fatal to the complaint.

    The False Claims Act's public disclosure bar is designed to preclude the filing of parasitic lawsuits or lawsuits based on public information readily known to the government. Specifically, the statute bars suits based on government audits and reports. If a government agency issues a report documenting fraudulent conduct by a contractor, it would make sense that a private citizen should not be able to use that report, file a lawsuit, and claim a bounty for bringing attention to that which is already known. But a response to a FOIA request is different. First, as a document generated at the behest of a private citizen, it would never be revealed if the private citizen did not know to ask for it. Second, the document may only provide raw data or information absent any analysis and its relevance may only be understood by the individual seeking the information. As Justice Ginsburg noted in her dissent, quoting the Opinion of the Second Circuit which was reversed, the Department of Labor's responses "did not synthesize the documents or their contents with the aim of itself gleaning any insight or information, as . . . It necessarily would in conducting a 'hearing" or 'audit.' "

    The truth is that Daniel Kirk, the relator in Schindler, was doing exactly what the Court in Iqbal and Twombly required of him; he was mustering very precise facts in order to plead a case. And though he may have filled his complaint with some facts secured from the government itself, there is no evidence that the government was able to put the pieces together absent his aide. 

    With so much public money being injected into the private sector these days and with insufficient oversight of contractors, does this case -- like other recent Supreme Court decisions -- merit corrective legislation? As Justice Ginsburg noted in her dissent: "[a]fter today's decision, which severely limits whistleblower's ability to substantiate their allegations before commencing suit, that question is worthy of Congress' attention."

  • May 12, 2011

    Law firms devoted to the interests of large corporations are not surprisingly taking advantage of a road being forged by the Supreme Court’s conservative wing to hobble efforts of consumers and workers to challenge corporate malfeasance.

    Reporting on the high court’s recent opinion in AT&T v. Concepcion, in which the high court’s conservative wing led by Justice Antonin Scalia shut down a consumer led-class action lawsuit against one of the nation’s largest telecommunications companies,The New York Times noted, “Though the decision concerned arbitrations, it appeared to provide businesses with a way to avoid class-action lawsuits in court. All they need do, the decision suggested, is use standard-form contracts that require two things: that disputes be raised only through the informal mechanism of arbitration and that claims be brought one by one.”

    In May 10 “newsletter” produced by Foley & Lardner LLP, John Douglas suggests that big employers should take advantage of the Concepcion opinion, and notes that the same conservative majority appears ready to continue protecting corporate interests, citing recent oral argument in Wal-Mart Stores, Inc. v. Dukes involving the nation’s largest worker class-action lawsuit alleging discrimination against the retailing giant.  

    Douglas writes:

    Based on the behavior of the Justices during the oral argument [in Wal-Mart v. Dukes] of the case (, it is already expected that the Supreme Court's upcoming decision involving a nationwide class action against Wal-Mart may throw some sand in the gears of a current juggernaut of class actions already attempting to raise claims of systemic discrimination based on sex and race. AT&T Mobility does the same thing. Particularly in the area of wage and hour class actions, AT&T Mobility should provide some long-awaited music for the ears of employers swamped by wave after wave of wage and hour class actions raising ever more technical, and “creative,” legal theories.

    How is this? Simply put, at least potentially, every employer big enough to face significant class action litigation risk (generally those with more than a couple dozen employees) can now have its employees sign an agreement to arbitrate as a condition of employment — and furthermore, require that any claim brought in arbitration be an individual one.

    As noted here earlier, Constitutional law scholar and professor Erwin Chemerinsky in a piece for the Los Angeles Times blasted the Concepcion majority as “favoring the interests of businesses over consumers, employees and others suffering injuries.”


  • May 4, 2011

    EDITOR'S NOTE: This is part of a series of posts about the proposed Sunshine in Litigation Act of 2011. Read guest posts debating the bill here.

    Tomorrow the Senate Judiciary Committee will consider the “Sunshine in Litigation Act of 2011,” relating to the disclosure of information relevant to public health or safety that surfaces in civil actions. The bill’s merits have been discussed at length in an ACSblog guest blog post from the American Bar Association (ABA) President Stephen N. Zack and two guest posts from Richard Zitrin, lecturer in law at the University of California, Hastings College of the Law.

    In his guest post, Zack faulted the bill, S. 623, as poorly thought out, and one that would, if enacted, greatly hinder the ability of Americans to access the courts. “The ABA is deeply concerned that seeking a day in court will become a luxury item if courts and cases can’t operate with greater efficiency and speed. Problems with federal judicial vacancies and court underfunding already wreak havoc with case schedules and the resulting time it takes to resolve a dispute. These expensive new rules would cost everyone, and make access justice even more of a luxury item.”

    Zitrin in his initial guest post lauded the bill as a long overdue measure to ensure that information about defective products and drugs discovered during civil cases becomes quickly available to the public. In a response to Zack’s criticism of the measure, Zitrin followed up with this guest post, faulting the criticism for missing the point and for not addressing the substantive issue the measure is intended to address.

    Thomas M. Susman, director of the ABA’s Governmental Affairs Office told ACSblog, “Professor Zitrin recently mistakenly wrote that the ABA does not have substantial objections to S. 623, the Sunshine in Litigation Act. In fact, today the ABA sent a detailed letter outlining its serious concerns regarding the impact of this bill.”

    The ABA’s letter to the Senate Judiciary Committee is available here.

    The 12-page letter to the Senate Judiciary Committee Chairman Patrick Leahy and Ranking Member Charles Grassley builds the case that the Sunshine in Litigation Act, like similar efforts before it, would amend current civil procedural rules to the detriment of litigants and cases.

    The letter reads, in part:

    Bills that would amend the Civil Rules to regulate the issuance of protective orders in discovery, similar to S. 623, have been introduced regularly since 1991. Like S. 623, these proposed bills would require courts to make particularized findings of fact that a discovery protective order would not restrict the disclosure of information relevant to the protection of public health and safety.

  • May 3, 2011
    Guest Post

    By Stephen N. Zack, President, American Bar Association. This is the second in a series of posts about the proposed Sunshine in Litigation Act of 2011. Read other posts in a debate about the bill here.

    If you were going to change the rules to a game to make them fairer, wouldn’t you ask the referees what they thought?

    Unfortunately, Congress has not. They are considering changes to important rules regarding litigation.  Disregarding the longstanding, successful process of court rules-making, however, this bill undercuts the third branch of government, threatens to raise court costs, and may even close off access to justice. All this without accomplishing what it really intends to do.

    It’s ironic that something called the “Sunshine in Litigation Act” doesn't involve the judiciary, in order to shed light on the issue. Judges know what problems exist in their courts and are best positioned to solve them. That’s why it is usually a wise, standard procedure to have the third branch of government set rules that address issues in the courts. But this measure avoids what usually works well, and instead would issue a legislative fiat about discovery protective orders. 

    If the courts were consulted, it would quickly become clear that the bill language is dangerously unclear and broad. As two Judicial Conference committees write in their letter of opposition to the Senate, Congress’ demands would lead to more confusion, not less, regarding what information has to be released, and when “…The provisions defining the scope of S 623 are problematic,” the conference warns, adding the standard in the law “is so broad and indefinite that it will either sweep up many cases having little to do with public health or safety and impose on all these cases the costly and time-consuming requirements of S. 623, or require the parties and court to spend extensive time and resources litigating whether the statute applies.”

    So, what is clear is that each court case falling under the shadow of these new rules would cost every party more time and money.