certiorari

Class actions will face a new test in the U.S. Supreme Court next year after the justices granted certiorari on two issues:

1) Can workers at an Iowa meatpacking plant rely on statistical sampling to establish liability and damages regarding wages?

2) Can a class be certified when it contains membesr who weren't injured and have no legal right to damages?

Reuters' Alison Frankel says in her analysis that class action lawyers "could be looking back with nostalgia and regret at the good old days when they only had to worry about Wal-Mart v. Dukes and Comcast v. Behrend."

Frankel notes that the Supreme Court also has taken up Spokeo v. Robins, presenting "the question of whether Congress can confer constitutional standing on otherwise uninjured class members by providing a private right to recover statutory damages for violations of consumer laws."

The Supreme Court also has taken up Campbell-Ewald v. Gomez, presenting the issue of whether defendants can stop class actions by offering lead plaintiffs a settlement that addresses their full damages.

The U.S. Supreme Court has agreed to decide whether a defendant in a class action case can end litigation by offering full payment to the lead plaintiff, Bloomberg's Greg Stohr reports.

Plaintiff Campbell-Ewald Co. is facing hundreds of millions of dollars for allegedly violating the Telephone Consumer Protection Act (TCPA) by sending automated text messages. The lead plaintiff was offered $1,503 for each text mesage he received, which Campbell-Ewald said makes the case legally moot because the lead plaintiff was offered everything to which he might be entitled.

The TCPA is being criticized by Campbell-Ewald as "' an extortionist weapon in the hands of class action attorneys seeking to extract lucrative attorneys’ fees for class-wide settlements.'"

The U.S. Supreme Court will be meeting in conference Monday to consider whether to take up the issue of same-sex marriage, writes U.S. News and World Report's Tierney Sneed: "The petitions come from four separate decisions out of three different U.S. Courts of Appeal on cases emanating from five different states."

Garrett Epps, a constitutional law professor, said the Supreme Court isn't likely to take up the issue until a circuit court of appeals upholds a ban on same-sex marriage, leading to a split among intermediate federal appellate courts.

Also at issue is whether bans should be rejected on equal protection or due process grounds: "Bans in Utah and Oklahoma, both overturned in separate decisions by the 10th Circuit, were decided on the basis of due process, meaning that denying gay couples the ability to wed deprives them of their fundamental right to marry. The 7th Circuit decision finding Indiana’s and Wisconsin’s same-sex marriage bans unconstitutional did so on the grounds of the equal protection clause of the 14th Amendment, with the unanimous panel arguing that same-sex marriage bans discriminate against one’s sexual orientation. If the Supreme Court decides on a case that invokes the equal protection clause, how it interprets the 14th Amendment could affect judicial rulings on other questions of LGBT rights and discrimination."

The U.S. Supreme Court has granted certiorari in a criminal case involving the free speech rights of a criminal defendant who used threatening language in the form of rap lyrics on Facebook, the Associated Press reports.  (I covered the trial of Anthony Elonis when I worked for the Legal Intelligencer, Pennsylvania's legal newspaper.)

Federal prosecutors successfully got the district judge to apply an objective standard for the jurors to decide if Elonis' posts were threatening, but Elonis' counsel argued that a subjective standard should have been applied, AP reports.

The U.S. Supreme Court has said that "true threats" are not protected speech, AP also reports.

After the Third Circuit rejected the Delaware Court of Chancery from overseeing private arbitrations, Delaware has asked the U.S. Supreme Court to review what some called "secret trials," Reuters reports. "The arbitration process was seen by Delaware attorneys as a key to boosting the attractiveness of the Court of Chancery," Reuters further reports. "It was also considered economically important to the state, as at least one company in an arbitration dispute had to be incorporated in Delaware."

The U.S. Supreme Court granted certiorari in two cases on whether police making an arrest must get a warrant before searching a suspect's mobile phone, Bloomberg reports. "More than 90 percent of American adults own mobile phones, giving the cases broad practical significance. The outcome also may hint at how the justices would view the National Security Agency’s telephone-data program, an issue likely bound for the high court," Bloomberg further writes.

New York Times reporter James Risen, who federal prosecutors are seeking to have identify his confidential sources in a criminal case against an alleged CIA leaker, has asked the U.S. Supreme Court to consider whether he is entitled to reporters privilege, Politico reports. At issue Risen's counsel argued in the petition is if journalists have a a qualified First Amendment privilege regarding confidential sources in criminal trials and if a common law privilege should be recognized for journalists under Federal Rule of Evidence 501.

The U.S. Supreme Court has decided to take up a case that could reshape the contours of copyright law: whether Aereo's streaming service violates the copyrights of broadcasters. It appears that an evenly divided court may hear the case since Justice Alito did not participate in the decision to grant certiorari: 011014zr_bp24.pdf

The Justice Department has asked the U.S. Supreme Court to take up a case involving Argentina and its defaulted debt, Global Post reports. Lawyers for the federal government argue Second Circuit precedent giving "hedge fund bondholders the power to pursue the country's non-US assets was wrong," Global Post further reports.

The Justice Department's brief increases the chance the justices will grant certiorari, Global Post also reports.

The Washington Post's Robert Barnes writes about the litigants who don't want their cases to go the U.S. Supreme Court because they won below. Or because they are worried about how the general-knowledge justices might change legal doctrine in their particular area of law. "For every prayer sent up by a losing party appealing a case, there is a winner who hopes — and sometimes, works hard to ensure — that it goes unanswered," Barnes writes.