The Disappearing Trial: Retrenchment of Litigation in North America

In addition, some areas are finding a need to create more judicial positions, including Quebec, which introduced a bill to add two judicial positions to the Court of Appeal and five positions to their Superior Court. This information can be found at https://​www.​cba.​org/​CMSPages/​GetFile.​aspx?​guid=​0b6a021b-fe48-418f-9763-a1e2f1fc2ce2. Accessed 7 June 2018. Updated statistics as of August 1, 2017, show a shortage of 45 federally appointed judges out of the 1157 total number of judges that are appointed by the federal government. This information can be found at http://​www.​fja.​gc.​ca/​appointments-nominations/​judges-juges-eng.​aspx. Accessed 7 June 2018.

This information is found at https://​www.​cba.​org/​CMSPages/​GetFile.​aspx?​guid=​5daaa44d-c13f-4556-8d1e-84a1409465ce. Accessed 7 June 2018.

See Bell Atlantic v. Twombly, 550 U.S. 544 (2007); Igbal v. Ashcroft, 556 U.S. 662 (2009).

President Trump’s quick appointment of Supreme Court Justice Gorsuch to replace conservative Justice Antonin Scalia left court-watchers speculating on the direction of the court. Justice Scalia had been a strong voice for corporate America, states’ rights and limited judicial powers. It is widely believed that Justice Gorsuch will continue the pro-business tradition, but may be more unpredictable on civil and social rights issues.

In Bristol-Myers, several hundred individuals from 33 states (along with 86 California residents) brought suit in California state court. Bristol-Myers did not develop or manufacture the drug in California and there was no reason to think that marketing, promotion, or distribution in California was involved in the injuries of the out-of-state plaintiffs. The only way in which the nonresidents’ claims related to California was that the marketing and promotion of the pharmaceutical was conducted on a nationwide basis.

The petitioner in Bristol-Myers seems to be advocating the cutting up of nationwide lawsuits into 50 separate suits and dispersing such cases to multiple states regardless of the convenience to the courts or any of the litigants, including the defendants themselves. See Brief of Amici Curiae Civil Procedure Professors in Support of Respondents.

Both cases involved actions for personal injuries suffered by Canadian tourists at resorts in Cuba. The defendant Club Resorts is incorporated in the Cayman Islands and manages the hotels where the accidents occurred. In both cases, Club Resorts sought to dismiss or stay the proceedings, arguing that the Ontario courts lacked jurisdiction and, in the alternative, that a Cuban court would be a more appropriate forum. In both instances, the motion judges dismissed Club Resorts’ motions, finding that Club Resorts had a sufficient connection to Ontario to permit the assumption of jurisdiction. These decisions were appealed to the Ontario Court of Appeal, which convened a special five-judge panel to reconsider the content of the real and substantial connection test. The Court of Appeal rearticulated the test in an attempt to increase the consistency and predictability of the jurisdictional determinations of Ontario courts. The Court of Appeal’s decision was then appealed to the Supreme Court, which unanimously endorsed a new framework for the real and substantial connection test.

See http://​elibrary.​law.​psu.​edu/​cgi/​viewcontent.​cgi?​article=​1123&​context=​jlia. Accessed 7 June 2018.

See http://​ir.​lawnet.​fordham.​edu/​cgi/​viewcontent.​cgi?​article=​2613&​context=​ilj. Accessed 7 June 2018.

In Spokeo v. Robins, 136 S.Ct. 1540 (2016), the U.S. Supreme Court held that allegations of a “bare procedural violation divorced from any concrete harm” (that is, simply a technical violation of a federal statute) is insufficient to establish Article III standing, which requires that all matters in federal court be a “case or controversy.” In Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663 (2016), the Supreme Court concluded that an unaccepted Rule 68 offer made to the class representative for full individual relief did not moot the named plaintiff’s individual claim. One case in particular, Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036 (2016), presented the Court with an opportunity to revisit the pro-defendant assertions made by Justice Scalia in Wal-Mart v. Dukes, suggesting that the plaintiffs could not use representative proof to prove a defendant’s liability (i.e., “trial by formula”). In Tyson Foods, the Court held that workers in a food processing facility could rely on representative sampling regarding hours worked “to fill an evidentiary gap” created by Tyson’s failure to keep adequate records to establish class-wide liability for alleged violations of the Fair Labor Standards Act.

For example, the Third and Eleventh Circuits have adopted a rigorous and strict inquiry into the existence of an ascertainable class, requiring a plaintiff to demonstrate by a preponderance of the evidence that (1) the class is “defined with reference to objective criteria” and (2) there is “a reliable and administratively feasible mechanism for determining whether putative class members fall within the class definition.” Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013); see also Karhu v. Vital Pharmaceuticals, Inc., 2015 U.S. App. Lexis 9576 (11th Cir. 2015). In contrast, the Seventh Circuit has adopted a more plaintiff-friendly approach pursuant to which proposed classes fail to satisfy the ascertainability requirement only if they are (1) vague and lack a “clear definition” (that is, one that “identif[ies] a particular group, harmed during a particular time frame, in a particular location, in a particular way”); (2) defined by subjective criteria; or (3) defined based on the merits of the claims (also known as a “fail-safe” class). See, e.g., Mullins v. Direct Digital, LLC, 795 F. 3d 654 (7th Cir. 2015). Thus, depending on the jurisdiction, the ascertainability requirement may preclude class certification or have no impact at all. We predict continued litigation and division among the circuits and lower courts regarding the ascertainability requirement unless and until the Supreme Court addresses the issue.

The 2016 proposed amendments under consideration included electronic notice, as well as provisions to check frivolous objections and appeals in the class action settlement. These proposals would require objectors to state the grounds for objection with specificity and court approval for any payments to an objector or the objector’s counsel for withdrawal of their objections or abandonment of appeals.

Representative Bob Goodlatte (R-VA) introduced H.R. 985, the Fairness in Class Action Litigation Act, on 9 February 2017. The Act, co-sponsored by Representatives Pete Sessions (R-TX) and Glenn Grothman (R-WI), would bring about dramatic and wide-ranging changes to the law governing class actions under Rule 23 of the Federal Rules of Civil Procedure.

Additional proposed provisions include (4) automatically staying discovery during the pendency of motions to transfer, dismiss, and strike class allegations unless “the particularized discovery is necessary to preserve evidence or prevent undue prejudice;” (5) prohibiting class counsel from representing a client in more than one class action, among other “conflicts” prohibitions; (6) mandating the reporting of settlement data to the Federal Judicial Center; and (7) providing an automatic right to appeal an order certifying a class.

The bill’s ultimate fate continues to rest with the U.S. Senate, where the Senate Judiciary Committee has thus far taken no action on the bill, whose prospects for passage remain unclear at the time of this writing.

See further description of rule changes at https://​www.​attorneygeneral.​jus.​gov.​on.​ca/​english/​courts/​civil/​changes_​to_​rules_​of_​civil_​procedure.​php. Accessed 7 June 2018.

Quebec’s New Code of Civil Procedure, available at http://​legisquebec.​gouv.​qc.​ca/​en/​ShowDoc/​cs/​C-25.​01. Accessed 7 June 2018.

See, for example, Ontario’s interpretation of General Principle 1.04 (1) “These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.” Proportionality (1.1) “In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding”.

The Court held that the Federal Arbitration Act preempted the California precedent that had previously held that, in certain circumstances, arbitration clauses in customer agreements were unenforceable. In DirectTV, Inc., the Court took on the question of whether a reference to state law in an arbitration clause required the application of that state law despite its preemption by the Federal Arbitration Act. The Court held that requiring contract enforcement under California state law that the Supreme Court had held was invalid in AT&T Mobility LLCConcepcion would conflict with the Federal Arbitration Act. Also, there was no language in the contract referring to invalid state law. The Court also noted that there was no indication that a California court would apply state law that has been held to be invalid when it conflicts with federal law in any other context. See AT&T Mobility LLC v. Concepcion.

The agency, the National Labor Relations Board (NLRB), had concluded that employer-mandated class action waivers violate section 8 of the NLRA by interfering with employees’ rights under section 7 to engage in “concerted activity” for mutual aid and protection. In D.R. Horton, Inc. v. NLRB, a divided Court of Appeals for the Fifth Circuit reversed the NLRB’s holding that a class or collective action waiver imposed by an employer as a condition of employment violated section 8(a)(1) of the NLRA. The NLRB declared that the waiver interfered with, restrained, or coerced employees in the exercise of their right under section 7 of the NLRA to engage in “concerted activity” for mutual aid and protection. The Fifth Circuit majority recognized that the NLRB’s holding that section 7 protected the employees’ right to sue collectively to improve their working conditions was supported by NLRB and court authority. However, relying heavily on Concepcion and the Court’s determination that the FAA favors enforcing arbitration agreements in accordance with their terms, the majority concluded that section 7 of the NLRA must yield to the conflicting policies of the FAA, the idea being that “concerted activity” does not clearly guarantee the right to class action, whereas the direction in the FAA clearly commands that arbitration agreements be enforced as written.

“Epic Systems Corp. v. Lewis.” Oyez, 7 Oct. 2017, www.​oyez.​org/​cases/​2017/​16-285. Accessed 7 June 2018; consolidated with Ernst & Young v. Morris and National Labor Relations Board v. Murphy Oil USA, Inc., both of which are cases that dealt with the relationship between the FAA and the NLRA.

See Epic Systems v. Lewis, 584 U.S. (2018) at https://​supreme.​justia.​com/​cases/​federal/​us/​584/​16-285/​?​ See https://​www.​nytimes.​com/​2017/​10/​02/​us/​politics/​supreme-court-workplace-arbitration.​html. Accessed 7 June 2018.

Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477 (1989), Shearson/Am. Express Inc. v. McMahan, 482 U.S. 220.

Ada, s.532I/S/at 1-5/.

Quebec’s New Code of Civil Procedure, available at http://​legisquebec.​gouv.​qc.​ca/​en/​ShowDoc/​cs/​C-25.​01. Accessed 7 June 2018.