Will and Dan record a rare live show in an unusual venue: the Salamander Resort in Middleburg, Virginia, at the annual attorney retreat for trial boutique Wilkinson Stekloff. Dan teaches Will some of the new lingo he's learned from the firm's trial experts before a deep dive into civil procedure. First, we dig into the recently argued Coney Island Auto Parts Unlimited v. Burton, which presents a seemingly easy legal question and harder questions about SCOTUS advocacy and ethics. Then we look back at last Term's LabCorp v. Davis, which the Court DIG'd but which raises some fundamental questions about class action litigation that the Court is likely to revisit down the road.
Will and Dan record a rare live show in an unusual venue: the Salamander Resort in Middleburg, Virginia, at the annual attorney retreat for trial boutique Wilkinson Stekloff. Dan teaches Will some of the new lingo he's learned from the firm's trial experts before a deep dive into civil procedure. First, we dig into the recently argued Coney Island Auto Parts Unlimited v. Burton, which presents a seemingly easy legal question and harder questions about SCOTUS advocacy and ethics. Then we look back at last Term's LabCorp v. Davis, which the Court DIG'd but which raises some fundamental questions about class action litigation that the Court is likely to revisit down the road.
[Divided Argument theme]
Dan: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps.
Will: And I'm Will Baude.
Dan: So, Will, we are doing one of our rare live appearances. We only get to do two or three of these a year. This one is a little bit of a change of pace, because we are live from the Salamander Five Star Resort and Spa in Middleburg, Virginia. Not our normal venue. And why we're here, I think requires a little bit of a de-tour. So, when I'm not doing one of the eight million other things I'm doing, such as talking to you. I am an of counsel at the law firm Wilkinson Stekloff. And for those listeners who don't know, Wilkinson Stekloff is a boutique firm with offices in D.C. and New York that I think fairly can be described as the best trial boutique in the country. Folks, do we say best trial firm in the country or just trial boutique?
Okay, everyone's just looking at me. [audience laughter] Okay, I thought I was going to get like a rip-roaring response to that one. So, a bunch of great trial lawyers. And for my part, I use ChatGPT to make pictures of Supreme Court Justices as Muppets. So, there have been a lot of synergies between what I can offer. Seriously, there's some great people here, and it's fun to pretend that I actually have real practical skills, and I'm not just pursuing constitutional theory all the time. Will, you practice law a bit, right?
Will: A bit. So, as you know, Dan, I am still not a member of the Supreme Court bar. But luckily one of my best friends, actually, while I am here, we are finalizing a Supreme Court amicus brief that Steve Sachs and I are going to file in Galette v. New Jersey Transit Corporation.
Dan: What's that one about?
Will: It is about whether the New Jersey Transit Corporation is the state of New Jersey for purposes of sovereign immunity. Because it turns out that the New Jersey Transit Corporation buses hit a lot of people, or at least enough people that there are several torts pending in other states which have not recognized the sovereign immunity of New Jersey Transit. We believe that the New Jersey Transit Corporation is not the sovereign state of New Jersey under the original meaning of the New Jersey Transit Corporation, whatever that is.
Dan: Okay. So, is that a surprising result? Is it originalism reaches the result that's more pro plaintiff?
Will: Yeah. So, I feel like during Justice Gorsuch's confirmation hearing, there was this whole question like, “Does originalism ever help the little guy who was hit by a bus?” And the answer is “Literally, yes.”
Dan: In this instance.
Will: In this instance.
Dan: Do you think this is going to persuade the court you have an argument that that's fundamentally different than the parties?
Will: So, I think my record for amicus briefs is a perfect loss record. I don't think I've ever filed an amicus brief that took a position that was shared by the majority of the court. I'm breaking the streak.
Dan: But maybe they found it entertaining?
Will: Yeah. [crosstalk]
Dan: The comic relief? No? Okay. But you did some doc review and stuff like that? I'm always surprised.
Will: Yes, I practiced law for several years at a small firm, Robbins Russell, that was also a trial and appellate boutique, and that had the policy that there was not special pride of place just because you were a former Supreme Court clerk. So, I reviewed documents, I made photocopies for the deposition because our paralegals went home earlier in the day. Arguably a bad career choice for, but I like it a lot.
Dan: Whatled you here? I've learned a few things here. I've learned some terms. I don't really know what they mean. Do you know what deposition designations are? [audience laughter]
Will: Yeah.
Dan: Okay. Did you know there's a thing called a counter designation?
Will: No. [audience laughter]
Dan: Did you know there's a thing called a counter-counter designation? [audience laughter]
Will: I could figure that out.
Dan: Okay. For the audience, is there ever a counter-counter-counter designation? No? Okay. Why? Just keep it going. Okay.
Will: It's like, after the SIR reply, you run up against the file. [chuckles]
Dan: Just keep going. Okay. So, back to the Salamander. We're here, because this is the firm's annual retreat. I'm told we have a certain number of friends of the show here. It starts with founding partner Beth Wilkinson, who is maybe the biggest fan. She's wearing her Divided Argument hat. Notice, most of the other folks are not, but that's fine. [audience laughter]
Each of us has at least one former student here. Alison, you in the back somewhere? Yeah. And then, Connie, are you here? Yeah. Connie is your former student from UChicago. So, some friends of the show, unfortunately, Will, you chose to fly in this morning. So, you got here, I think, 38 minutes ago. Cut it a little close, but it is very, very hard to get you out of Chicago.
So, I think the fact that we got you here at all suggests the level of enthusiasm on behalf of both of us. But you're missing out on the chance to enjoy the amenities of this lovely resort. I'm told there was a pickleball game, a cooking class, some golfing. I'm getting massage. Was there a Dungeons and Dragons activity? [audience laughter] All right, so, maybe this wouldn't have been your first choice. Okay. [crosstalk]
So, we're going to do something we don't usually do, which is try to minimize, beyond this point, the chit chat, which usually takes about 40 minutes of the episode, because we do actually have a stop time, and we're hoping to leave some room for questions. And it's good, though, because the court has not done any really huge shadow docket action since we last recorded. I'm confident they'll do something huge in the next 10 minutes while we're recording. So, this episode will be, as always, untimely. But that's just the way it goes. So, instead, we're going to talk about two things that might be of interest to this group of civil litigators.
And so, the first is going to be a case that was argued two weeks ago, and the second is going to be a case from last term that ended up getting dismissed, but has some issues that might be worth revisiting, because they might recur. So, I'll start with the more recent case first. Coney Island Auto Parts Unlimited v. Burton, Cipro case. Maybe not the most excited. Do you have the question presented in front of you?
Will: This is an exciting case.
Dan: Okay. All right. Let's see whether the audience agrees.
Will: You're not excited, Dan?
Dan: I'm always excited.
Will: Okay. This is one of those QPS that has a preamble. I don't know how you feel about that.
Dan: No, skip the preamble.
Will: Okay. The question presented is whether Federal Rule of Civil Procedure 60(c)(1) imposes any time limit to set aside a default judgment void, for lack of personal jurisdiction.
Dan: Imposes any time limit.
Will: Void. Void.
Dan: Okay. Void. Okay. And so, it's a Federal Rules of Civil Procedure issue, so let's look at Rule 60. And Rule 60(b) does have this procedure for a person to go file a motion and relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons. And it lists five reasons and then a six catch all reason. Any other reason that justifies relief.
Okay. One of those reasons, Rule 60(b)(4), is that the judgment is void. So, you can use this procedure to get relief from a void judgment. Okay. And then, we got another provision 60(c). A motion under 60(b) must be made within a reasonable time. And for reasons one, two, and three, those are not applicable in this case. But those are other things. No more than a year after the entry of the judgment order or the date of the proceeding.
Will: Right. So, you have a year if you want to say the judgment was from fraud or mistake or whatever. And if you don't, if you have voidness, you have potentially more than a year. You have a reasonable time. But the question is,-
Dan: The question is-- [crosstalk]
Will: -what if you want to file in an unreasonable time?
Dan: Well, maybe. Maybe there's a different way to get to that result. But so, as framed, the question is, any time limit.
Will: Yeah.
Dan: And so, textually, it seems like pretty hard to say the reasonable time thing doesn't apply.
Will: Textually, yes.
Dan: Okay. So, in this case, petitioner is a New York company that was a judgment debtor in a bankruptcy in Tennessee. The company was served, but at least allegedly the service was ineffective, because it was sent by mail just to the corporation rather than to an officer of the corporation. Default judgment gets entered, a lot of time goes by, the bankrupt entity actually goes fully bankrupt, and there's a bankruptcy trustee that takes over.
They track down this company, Coney Island's assets, and take a bunch of it. The company, Coney Island, ends up moving for one of these motions for relief of judgment. Does so in New York. That doesn't work, then goes and does it in Tennessee. It seems to have taken a long time. Why? Why did they take so long to file this motion?
Will: They're busy.
Dan: Okay. So, did they have some really compelling narrative about why they waited so long?
Will: They currently don't have a super compelling explanation for why it took long time.
Dan: This party, did I even say the case name? Is this Coney Island Auto Parts Unlimited v. Burton? Okay. Their position seems to just be-- We don't have to give a reason.
Will: Their position is, look, a judgment that's void, that just we were never properly served it in the first place. We shouldn't even need to vacate it. It's void. The common law understanding was that a judgment entered without jurisdiction was quorum non judice. We've already established. I don't know that.
Dan: If that's true, why would they need to file the motion?
Will: Well, the courts are not treating it as void. [chuckles]
Dan: Okay. Yeah. So, what is void? There's a distinction between void ab initio and voidable. What is the distinction between those two things?
Will: It doesn't depend on whether it's void on the face of the record or whether there's some non-record fact you need to show why it should be void.
Dan: Okay. And so, the petitioner's argument is just, this thing has no effect. You could file a motion for relief of this judgment anytime.
Will: Yeah.
Dan: Decades later.
Will: Yeah. It shouldn't be there in the first place. It's almost asking too much that I even have to go try to get this void judgment. You went and got a judgment against me without proper jurisdiction, and now I'm the one who has to go to court to clear it up? That's like when they start sending you the book of the month club without you asking for it, and then you have to cancel it. It's like, “Thanks a lot.”
Dan: Has that happened to you?
Will: Yes.
Dan: Okay. I didn't know that was-- [Will laughs] Did they charge you for it? I don't believe you didn't sign up. I think this is an oversight.
Will: Well, they never believe you. [chuckles]
Dan: Okay. And so, traditionally, when you had one of these void judgments-- I know this question came up more in the Pennoyer era of personal jurisdiction, the more traditional route was a collateral attack. How did that work back in the day?
Will: Well, so back in the day, A, if somebody just showed up with this void judgment--[crosstalk]
Dan: So, if someone sues you in a different state, they never serve you, you're never there, you have no connection to that state.
Will: Yeah. Then at some point, they come marching over to your state and you say, “What the hell is this?”
Dan: Okay. And then, the court in your home state can just say, “This is a void judgment.” This is a little bit different, because you're going to the court that is currently executing the judgment.
Will: Right. So, two things. In general, we have moved beyond the Pennoyer era, for better or worse. And so, often, it is harder now to collaterally attack a judgment for lack of jurisdiction. Even cases where maybe should be able to, there's more of a presumption of regularity and a sense that those are enforceable.
But also, the Rule 60 and this is part of the frame of the case. I think the Rule 60 procedure is also just there. Often, it's more helpful to you to go back to the original court and say, “Look, I don't want to spend time running around the country arguing about whether or not I was served with process.”
Dan: And there might be a conflict. If the court one says, “No, no, it was proper,” and court two says, “Not proper,” so you go back to the original court.
Will: I could just like every time the Book of the Month Club sends me a notice, just throw it in the trash and say, “I don't know who you are and we've never had a privilege contract and good luck finding me.” But at some point, they're going to send it to a collection agency. It's going to become really annoying. So, if I could just go to the Book of the Month Club and say, “Look, please take me off your list and recognize that you never send me the books in the first place,” maybe I'll better off.
Dan: I'm getting a little confused by this metaphor, because it doesn't have a jurisdiction issue. There's not a chord of the Book of the Month Club, but it was a good try. And so, I think as a matter of text, though, it seems like it's pretty easy. It just seems like, if the argument is there's no time limit and you look at the rule and it seems to say it has to be reasonable time for all motions under 60(b)--
Will: Yes. Right. So, I think it could be-- The petitioner has framed this case in a way that maybe some of the most interesting arguments are left a little bit on the side of the road. So, it could be that the way to think of the argument is when a judgment is void, any time is a reasonable time. It's never unreasonable to complain the judgment is void. For some reason, the petitioner has conceded that he did not file in a reasonable time, whatever that is. So, maybe the case won't matter, because the court will say it has reasonable time. But who knows? Maybe forever is reasonable.
Also, there's sort of a constitutional argument. So, the petitioner's real argument at argument was kind of, “Well, yeah, the text of the rules against me, but fundamental principles of Justice and due process and the way this is supposed to work are in my favor,” which I think could be an argument that the rules unconstitutional where the 60-- [crosstalk]
Dan: But then disclaims making that argument. And so, before we get to the specific arguments, maybe there's a little detour to take that I think is an interesting, wrinkle that presents some questions about Supreme Court advocacy, Supreme Court ethics. And the case, the petitioner's side was argued by a solo practitioner from New Jersey, a guy named Daniel Ginzburg, who I think can fairly be said did not do a good job in the briefing or in the oral argument. I normally don't like to pick on other lawyers, but the situation is a little different, because this guy gave an interview to Bloomberg, which was basically about him saying that lots of experienced Supreme Court practitioners volunteered to take the case, but that he kept it because he wanted to and it would be good for his resume. And among the people who-- [crosstalk]
Will: We can quote what he said.
Dan: Okay. Yeah, I was going to get there. I was going to get there, but you can go ahead.
Will: All right. But this is just a wipe out the case. He said, “I had a shot, and I didn't want to give up the opportunity to argue for the Supreme Court. Ever since law school, it was viewed as a big deal.” [audience laughter]
Dan: That's true. It's not really a client facing justification. But a bunch of people offered, including friend of the firm, maybe friend of the show, Lisa Blatt. And he says, “I had no idea who she was.” [audience laughter] This is from this Bloomberg article, said Ginzburg, “Whose job largely consists of financial services litigation and semi frequent appearances at state and federal courts in New York and New Jersey.”
Interestingly, Lisa actually ends up [chuckles] on the other side of the case. So, I guess, if you're an enterprising Supreme Court advocate, you have to do that. You just have to ask everybody if they'll hire you. And this guy did not take that offer. Yeah.
Will: So, it's not always a mistake for a first-time advocate to keep the Supreme Court argument, because they argue with the case below. Are you one of these people who thinks, like, unless you are Paul Clement or Lisa Blatt, you shouldn't be allowed to argue in front of the Supreme Court?
Dan: No, I should be allowed to, [Will laughs] but I would find it a little stressful. No, I think that there might be ways in which you could try to figure out whether you're really equipped, do you have a lot of appellate experience, and so forth? Do you know the way the institution works? Do you have any background on the institution? So, I don't think you should always only go to a former SG. But there is a Dunning-Kruger phenomenon, where the people who are maybe most likely to rebuff other people's help, have the most unfounded confidence in their abilities.
Will: Yeah, this is right. I also think it depends on the case. I think there are kinds of cases, where there's reason to think the record will matter or reason to think at least your best argument is going to be based on a sophisticated understanding of exactly what happened in the trial court and how the May order was different from the August order or whatever it is.
There are times when the most relevant thing is trying to translate to the Supreme Court Justices some proposition of law. Because it's nine people, who speak a very strange language, sometimes having the translator there is more important than having the person who knows something what's going on. Not that the experienced advocates don't familiarize themselves with the record. Sometimes having the person who knows what's going on is more important than having the person who speaks Gorsuch.
Dan: And that's an argument. The justification shouldn't be, “Well, I kept it because it was a big deal. I always wanted to do this as a lifelong dream.” Orin Kerr on X asked an interesting question, and we will circle back to the merits in just a second. He said, “Is there an ethical obligation in a situation like this for a lawyer to inform the client that they've received offers like this from leading Supreme Court practitioners?” I wasn't sure. What do you think?
Will: Every time I run into somebody who teaches personal responsibility or knows personal responsibility, I've been polling them on this. I think so far the conventional view is not a per se rule in the way that if you are a defense attorney, you have to notify your client of certain kinds of-- [crosstalk]
Dan: Plea bargain offers,
Will: Like, plea bargain offers, or whatever. But definitely in the category of a best practice, if it's a plausible offer. The thing is, if you imagine you get this case, every lawyer emails you, “I'm not sure you have to forward them all to your client.” I think the thing that's more telling is there is some obligation to make this decision in the best interest of your client. So, if your reasons for not communicating it were, “I know the case inside and out, and there's reason to believe my experience is more important.”
And in the interview, to be fair, the lawyer does say, “As one other justification for keeping the case,” that he doesn't see is lack of experience as an issue in a case such as this one, which turns on a few facts and a specific legal issue that only a civil procedure geek would love. But I think it's backwards.
Dan: Yeah, I think that’s totally wrong. Yeah.
Will: The better case for keeping the case to be, it turns on a ton of facts, which I am the only person who knows rather than civil procedure geekery, which is basically the same thing as the Supreme Court bar.
Dan: Which is that you.
Will: Right.
Dan: You should have done this.
Will: [chuckles]So, I do think if you're deciding not to take it because of the glory rather than because of the client, that's less of a good sign. I do think maybe as a per se rule. If you don't know who Lisa Blatt is, you are not yet prepared to argue in front of the Supreme Court. [audience laughter]
Dan: Yeah, maybe you don't know enough about the institution. [Will chuckles] To circle back to the merits, it did make me wonder-- It's hard to tell when you don't have the best briefing on one side that isn't putting the issues on the table in the most helpful way in the court.
I will say that the Supreme Court found this case pretty easy. You can tell the oral argument lasted 35 minutes, in a world where now the arguments routinely go on for two and a half hours, the Justices were just ready to be out of there. [Will chuckles] And so, that suggests that they did not think this was a hard one. But the weird thing is all the courts of appeals were on the petitioner's side. This was the short side of the split.
So, in general, more likely than not, the court goes-- it doesn't always take the big side of the split, but it's more likely than not to rule in favor of the petitioner, and it's more likely than not to take the lopsided side of the split. And so, it did make me wonder, is there a totally different universe, or you have totally different briefs where there's a way to salvage this? I think you already suggested maybe there's a way to do that. I don't know if you want to say more about that. I think the way in which this case is framed is the worst possible way.
Will: Right. I think if you try to salvage this by merging both, the reasonable amount of time should be understood in light of the background principles and the background constitutional values about void judgments, such that a reasonable amount of time for a void judgment is forever, or at least very, very long, or at least when thinking about the reasonableness, you should think about the voidness or something.
Dan: Could you incorporate principles of notice into that notice?
Will: Probably, sure. Although it's not quite clear when the notice kicked in. So, I think you could imagine arguing this case in a different way, though, it might come out differently. I wouldn't be surprised if what happens is a narrow win for respondents. It's like, “Well, in light of the fact the petitioner didn't make any of the good arguments, the respondent is correct.”
Dan: Yeah. This provision does apply. It does have to be a reasonable time. But we don't need to tell you right here what constitutes reasonableness.
Will: That's right. What this case also reminds me of-- We talked about this case in the show Royal Canin v. Wullschleger, a couple last year or so.
Dan: Is the dog food?
Will: The dog food removal case, which I think was similar in that I think there the Eighth Circuit, I think it was Judge Stras broke with every other circuit about how to understand jurisdiction and complaint filings. It was the one side of a short split. The Supreme Court granted it and then affirmed. It's like, “Yup, this one court who did something different from everybody else just by following the text and formalist account was correct.” And it seems like maybe we're set up for something similar.
Dan: Yeah, I do admire judges that are willing to do that once in a while, because there's this problem where a lot of issues just never get to the court, even issues where I think the court would be likely to reject the consensus of the court of appeals, just because all the courts of appeals are following each other in lockstep, and the Supreme Court just doesn't have the resources to dig into these issues if there's no circuit split.
So, yeah, I do think that there's a way to-- maybe there's a way to make the due process argument in a way that was more effective. I just would love to read those briefs and see whether there was a way to salvage this case.
Will: Well, I could ask Lisa Blatt what she would have said.
Dan: Okay.
Will: One last wrinkle about this. So, do you think that if the attorney does a really bad job, the client can sue for malpractice? It turns out there's a student note about this question, because there was once an oral argument in one of the free speech marketing cases. There were cases about mushrooms, and fruit, and beef, and compelled advertising, where the advocate was famously bad and started getting in the dialogue with Justice Scalia about whether or not green plums gave his wife stomach troubles or something. [Dan chuckles] It was just really weird.
Anyway, the student note pointed out there's this issue that normally one of the ingredients of bringing a successful malpractice claim is prejudice. It’s like, you have to show you would have won otherwise.
Dan: Yeah, that's what I would think.
Will: You bring a malpractice claim in state court. So, can a state lower court even really say the Supreme Court got it wrong? Like, the Supreme Court would have decided the case the other way had they had a better lawyer? Arguably, judicial hierarchy forbids any court that would actually hear a malpractice claim from saying that.
Dan: Yeah. You're saying the Supreme Court did a bad job. Like, they were tricked by bad lawyering. It seems maybe a different standard should apply in that situation. Just lower, reasonable possibility standard, or something like that.
Will: Yeah.
Dan: But I don't think it's going to happen. The worst thing that happens in that case is you get made fun of on a podcast like this one. Okay, so, we'll see what happens with that one. I think there's maybe not a ton of suspense. I could imagine the court getting out an 8-page opinion in a month or two. Maybe this will be one of the first opinions this year.
Will: The suspense will be, is there a separate 14-page concurrence about the way we should think about this case or not?
Dan: Did you file an amicus brief in this one?
Will: No.
Dan: This didn't move you, this wasn't keeping you up at night?
Will: I'm busy trying to do all these podcasts now.
Dan: Okay. All right, so, now we're going to talk about the slightly less timely issue. We want to circle back to a case from last term, Laboratory Corporation of America Holdings v. Davis. We had a big debate about this case last season, and the big debate was how to pronounce the name of the company. I was shocked to see that the advocates were calling it Lab Cor.
Apparently, I found this interview through with the help of a listener from the CEO who acknowledged that it doesn't really make sense to say Lab Cor, because that's a weird back construction, turning it into French. It should be LabCorp. I was deeply offended by this, but it's really neither here nor there and I don't want to get too derailed on that. Instead, let's maybe set up the issue. Maybe we can talk about why the court didn't reach it and then we can talk about how might the court revisit this issue, which it probably will at some point down the road.
Will: Okay. Yes, this is a deep cut. An issue that was di DIG'd more than five months ago, but the issue is coming back. So, Lab Cor or Corp. Okay, LabCorp [chuckles] decided to join the kiosk revolution, where you try to replace interactions of human beings with automated kiosks, which I personally find extremely annoying. I think they should lose the lawsuit for that reason alone in a bunch of their diagnostic sites. And the issue is that what happens if somebody who can't see a blind person or a visually impaired person comes up to use the kiosk? They can't use the kiosk.
Apparently, they did have an offer from a contractor for more accessible kiosks, but they didn't use those. So, at that point, you're still supposed to go talk to an attendant and maybe they help you, maybe they first tell you to use the kiosk, maybe you have to give away private information. And so, they are sued by a putative class action on behalf of all of LabCorp visually impaired customers who arguably have an ADA violation and equivalent, the California Unruh Act violation, for the discrimination or lack of accommodation they faced in using these machines.
Dan: And so, one way you could think about a statute like the ADA is just anytime a company doesn't comply, that creates an injury. The court has ruled out that way of thinking about a statute like that.
Will: Right. So, you need to have some more personal injury, not just the fact the statute was violated like you want it. Because one of the questions is, do the plaintiffs in this class even want to use the kiosk? Are they injured by the fact there's a kiosk they can't use, or are they happy to just go up and talk to a person instead, or just talk to the person work out just the same anyway?
Dan: This is the TransUnion case from a couple years ago, which-- I think we're still puzzling over a little bit, but it seems to stand for the proposition that Congress can't just create a cause of action giving people the right to go get money, unless they have an injury that looks like something from the common law era. Is that a fair way to describe it? It certainly has to be maybe money, maybe other things.
Will: Yeah, I think so. I think the premise is actually even a little more murky, because again, the statute has both a federal statute and then we also have a California state statute which is actually quite, I think, generous in its conception of accounts as an injury. We think about the state statute, are we still thinking about federal standing, or could we bring this case in state court? But let's just take as a premise that you can't ultimately get relief under these statutes if you don't have an injury. And then, in some sense, that's a lack of standing.
Dan: And the injury defined as you tried to use it and couldn't or something like that.
Will: Right. Yeah.
Dan: Okay. And the court has been dancing around this issue the mootness case from the other term. Was it Acheson? I can't remember.
Will: Yes.
Dan: Yeah.
Will: Yeah. So, then the question the court has to cover here, is the plaintiffs don't want to worry about that right now. They just want to certify a class that consists of everybody, every blind customer who went to LabCorp, and they say, “Look, it's true. Some of these people won't ultimately be able to recover, because we'll ultimately conclude they didn't have any injury. That's fine. We'll figure that at the damages phase. We just want to establish now, whether or not this was an ADA violation and an Unruh violation or not.” And there are various arguments, both sides, whether it is.
Dan: Yeah. And so, as I understand it, there's two arguments, one rule based and one constitutional. But maybe it's the same, maybe it's different. So, one is Rule 23. This is a rule, Federal Rule of Civil Procedure 23(b)(3) class action, which requires that the court find that the questions of law or fact common to class members predominate over any questions affecting only individual members. And so, this issue could be a question Rule 23 might answer this question.
And then, there's actually the Constitution Article III principles of standing. Does it violate standing to certify a class even where the name plaintiff might be able to show standing under TransUnion, showing the kind of injury were just talking about. But to represent a bunch of other folks in the class who on their own wouldn't have standing, can we wait-- Put differently, can we wait to figure out who had standing at the back end, where we do damages, or does there have to be a way to sort that out at the front end at the class certification stage?
Will: Right. And so, you frame this question as, can you certify a class that includes both injured people and uninjured people? It seems intuitive. The answer might be no. And that's what Justice Kavanaugh argues, and it's not what we should talk about. But if you frame it a little bit differently as like, well, before you certify the class, you have to figure out what everybody's damages are, the answer is like, well, that can't be right.
Dan: Yeah.
Will: And now, so, it's the idea, well, you do have to figure out what these damages are if for enough of the people, the answer is zero. But of course, how do you know whether the answer is zero for enough of the people, unless you figure out a bunch of people's damages?
Dan: It's a real brain teaser of a case. So, as I understand LabCorp's argument, which is you can't satisfy the Rule 23 argument, is you can't satisfy predominance if there's an appreciable number of uninjured members. That seems to be their argument. Not totally clear what counts as an appreciable member.
The government doesn't take a direct position. The SG's office is an amicus in the case does not take a direct position on the constitutional question. Does say under Rule 23, this is a more bright line rule, you just can't certify if there's uninjured class members?
Will: I'm not sure they say, you can't certify there's any uninjured class members or if they also have some appreciability--
Dan: They don't seem to endorse that phrase, though. It seems to be broader. And then, as you mentioned, Justice Kavanaugh disagreed with the court's decision to dismiss. We don't have to get into the details, but basically this was a procedural mess where there was one order and there was a Rule 23(f) petition filed by LabCorp, and the Ninth Circuit was considering the appeal. And then, the district court did more stuff, and changed it, and then that was never before the Ninth Circuit.
And so, the respondent in this case, represented by noted plaintiff side appellate lawyer Deepak Gupta was able to convince the court to get rid of the case, that it was just too much of a mess. So, Justice Kavanaugh disagreed, though. He files a short dissent from denial that you just referenced that I think does not take a position on the constitutional issue, at least, it doesn't seem to clearly do that.
Will: I think he frames it as a Rule 23 argument, and he frames it as agreeing with the government that just members of a class that aren't even injured, they can't share the same injury with the other class members, and cites all the court's standard cases about why they don't like class actions. But then, most of his argument is just about why this is important, because class actions are really bad.
When they have a lot of damages that can coerce businesses into costly settlements that they sometimes must reluctantly swallow, and that this will, in turn, pass the costs on to consumers in the form of higher prices, to retirement account holders in the form of lower returns, and to workers in the form of lower salaries and lower benefits.
Dan: So, I want to understand what happens depending on which way the court ultimately decides on this issue. Would you agree that there's a pretty good chance to the court will eventually take a case squarely presenting the issue?
Will: Sure.
Dan: They clearly are interested in it, and they just couldn't get there this time. If the court agrees with Justice Kavanaugh, what happens in future class actions? Does it make it just a lot harder? Because one way is just to define the class narrowly, but then figuring out who's a class member up front becomes much harder.
Will: Well, yeah, but it's not clear. So, this is one of things they debated at oral argument. At least the petitioners claimed it wouldn't necessarily be that hard a lot of the time to define the class more narrowly. So, if your class is, instead of everybody, every blind person who went to LabCorp during this period is every blind person who tried to use a kiosk during this period. Now, it's a little hard--
Dan: Do you have to figure out who those people are, though, on the front end, or can you just say that that's the class and then still figure it out?
Will: You don't need to know every one of them. So, when you sue Kraft Parmesan cheese or whatever for mislabeling that it's 100% Parmesan and doesn't contain cellulose.
Dan: Wait, it's not?
Will: There's 20% cellulose.
Dan: Oof. Okay.
Wiil: I don't know if this is Kraft. I think it's one of the other companies that's less careful. The cheese label says, “It's Parmesan cheese. 100% grated.” [Dan laughs] It's 100% graded. It's not 100% Parmesan.
Dan: Wow. Okay.
Will: Because the [crosstalk] 100 %.
Dan: Okay. Come on.
Will: Anyway, when you sue them, the plaintiffs especially don't have to have a list of every person who's ever bought the cheese. The point is, just like they've defined the class, then when it comes time, they'll try to figure out who everybody is, you try to get notice people. So, it's not insuperable. But the more weirdly un-specially define the class, the more problems you run into.
Dan: Yeah. And so, if it's wrong, though-- If you can wait to figure it out on the back end at the damages stage, how do you reconcile that with the fact that, an earlier post-certification grant of summary judgment would bind all the class members?
Will: Okay. I think the best argument that the petitioners made, which I think is more of the standing argument than the Rule 23 argument is it's got to be that you can't let people in the class, they don't have standing, because an adverse ruling is going to bind them, and you shouldn't be able to bind people who couldn't be parties in the first place.
If you don't think of this as a standing problem, you just think of it as a damages problem, then it's easier to say, should you let people with zero damages in the class? Sure, why not? We'll let people into the class whose damages are only two cents. They won't get very much money. An adverse ruling will bind them, but they probably don't care because the damages are only two cents or only $0. And similarly saying, “The uninjured people will be bound to a judgment that they don't get to recover when they weren't injured anyway.” Who cares? They're uninjured, so they lost nothing.
Dan: But formally, we'd want to know the answer, right?
Will: Yeah. If they don't have standing, then formally we need to know the answer in advance. So, I think this is a problem created by the fact that we have decided to label it a standing problem. When people sue under a consumer protection statute and don't have enough of an injury-- It's not obvious that has to be a standing problem.
Dan: Oh, interesting.
Will: You could just say, they don't have enough damages. You could have some rule you apply to statutory damages that you could even say statutory damages are unconstitutional, because the court doesn't like them, which seems to be what's going on, and therefore they don't count for that reason. So, my frequent partner in crime, Steve Sachs, has a draft article called something like standing the doctrine that ate procedure. You know, like The Pizza That Ate Chicago, the old famous horror movie.
One of his general concerns, is that the court uses standing to do a bunch of things that other parts of civil procedure are supposed to do, like who are the necessary parties and what is the capacity of the parties to be sued, a bunch of other things that they either don't actually know are governed by civil procedure, because standing is the only doctrine they've ever heard of. Or, can't be adequately imposed by appellate courts, because they would take place at the trial level in ways that the court can't totally superintend. And so, standing is being used to cover the sins of other civil procedure problems the court doesn't understand.
Dan: Okay. Do you agree that that standing is the wrong doctrine to handle the TransUnion situation that should be dealt with a different way?
Will: It seems to me like, yes, standing is-- I mean, it's not clear, TransUnion is even right. But to the extent, you have an objection to people getting several thousand dollars when they didn't have what seems to you enough injury to deserve several thousand dollars. That seems like it's not a standing problem.
And the same thing here to the extent that Justice Kavanaugh is concerned about overinflated class actions pressuring businesses to settle, that doesn't seem like standing problem, and that may be the reason that he doesn't frame it in terms of standing. But if it's not framed in terms of standing, then it's not clear why we have to reach it at the beginning, unless we want a general principle that for all class actions that the Supreme Court thinks are way too big, you should have to stop them from being way too big before the company settles them, which I think is the thing they actually believe. But unfortunately, there's not an obvious legal hook to let them do that.
Dan: Yeah. So, I was interested while reading this with the dyed in the wool, card carrying, originalist answer to this question was about. It seems to come down to-- Certainly, you would agree that you need to have standing to be a party.
Will: Sure.
Dan: Now, there is this other rule that a court can consider a case as long as one party has standing. Is that really only for injunctive relief?
Will: Yeah, that's a bad rule anyway.
Dan: Okay.
Will: [chuckles] So, the one proper party rule is, and it only applies so long as the other parties are not seeking relief that's any different from the first party. So, the idea is if 10 people all come in and want the same injunction, then as long as one person has standing to seek the injunction, we don't really have to worry.
Dan: It doesn't matter.
Will: Yeah, it turns out it does matter, because if somebody violates the injunction who has standing to move for contempt only the person who actually has standing. And so, even when the court says that, they don't actually think the district court doesn't have to care who has standing, eventually. They just mean something more, like, for purposes of the appellate court resolving a legal issue, it's good enough for us to know that it matters to somebody here and on remand, the district court will do all the hard work.
Dan: Okay. But if we're talking about a mass action, or just joinder, or something, all the joined parties do have to have standing on the front end.
Will: Yeah, for damages. Because again-- [crosstalk]
Dan: Yeah, for damages.
Will: But inherently, they're all seeking different relief. We're talking with the amount of damages. But that said, the intuition the court has behind the one good plaintiff rule is, boy, it'd be a lot easier if we could just resolve the common legal issue to all the parties before we have to figure out how many of these parties actually belong here. And that is exactly what the people seeking these class actions want to do, is to say, “Look, there's a legal issue here that matters to at least some of these people. Why don't we just resolve that legal issue first, and then we can sort out which of them actually belong in the case?” So, if the Supreme Court is willing to do it in the injunction context for reasons of judicial economy-- [crosstalk]
Dan: Although, in theory, I think part of the strategy here is to make it impossible to certify. If you have to define the class more narrowly, it's too specific. And then, it's hard to show predominance, because it's going to determine on these individual findings.
Will: Yes, that is the strategy.
Dan: Okay. But you didn't get to my answer. You agree that, in general, everybody needs to have standing at the front end of a lawsuit if they're a party. You agree with that?
Will: Yes. I would spit it the other way around, but yes.
Dan: So, what's the other way?
Will: Standing doesn't appear in the constitution. The thing that standing is supposed to be asking is, are you a proper party to this lawsuit?
Dan: Okay. Okay.
Will: So, I agree that you should only let people be a party if they are proper parties in some substantive sense.
Dan: So, does this all come down to when someone's a party? Is that the question in the case? That seems to be something that the both sides in the case are talking about.
Will: Yeah, I think it comes down to what makes you a proper party in a class action. The whole reason we have class actions is because we think it's useful to presume a bunch of people as parties, even though we don't know who they are and they'd never heard of the lawsuit yet, because it's a lot easier than doing it any other way, and we figure they won't mind. And I think the question is, how far can we take that fiction.
Since law school, I've always been uncomfortable with opt out class actions where you're, like, made a party to a lawsuit you've never formally. You're a party to a lawsuit you don't know about unless you eventually opt out if you happen to hear about it. It seems a little weird. I literally don't know how many lawsuits I've been a party to, because there have been so many class actions filed that I may well qualify for it. It seems like a fact I should know about myself.
Dan: It's hard to know, though.
Will: Right. We don't even take it that seriously. There are times you apply for bar admission or something, it's like, have you ever been a party to a lawsuit? They don't mean literally a party to a lawsuit. You've literally been a party to class action lawsuits you don't know about. They only mean the ones where you're really a party. But once we're going to do that, that's the system we have. There are good reasons for it. Then it seems weird to take the party thing too seriously.
Dan: You didn't quite answer the dyed-in-the-wool originalist answer to the question is what. You're speaking for all those people in San Diego.
Will: Okay. [laughs] The dyed-in-the-wool originalist answer is--
Dan: Come on.
Will: I think this is fine.
Dan: Okay. Because standing is not the right way to think about it?
Will: Yeah. It's a case or controversy. There's clearly a case of controversy here.
Dan: Okay. All right. Okay, that's question one. Question two is the court likely to agree with you if the case comes back.
Will: No. The court will obviously agree with Justice Kavanaugh.
Dan: Obviously?
Will: Yeah.
Dan: Okay. Why obviously?
Will: Because if you ask, should you be able to have a class that consists of injured and uninjured people. It sure seems like the answer is no.
Dan: Okay. Well, I guess we'll find out at some point. Maybe not this term, but some point in the next few years, I imagine this issue will recur. So, keep your eye on it. Maybe you can file a fruitless amicus brief. Would you consider that?
Will: I've sworn off amicus briefs.
Dan: What? No. You haven't. You did one today.
Will: I swore off them, but sometimes I'm weak. [chuckles]
Dan: Okay. It wasn't much of an oath, I guess.
Will: Duty calls.
Dan: Okay. Well, I'm going to insist that you write one. Okay, tons more we could say about many things, but we are actually going to leave some time for questions. If people want to ask things that might actually be featured on the show, we're going to send the mics around.
Will: Do they have to be about Coney Island?
Dan: No. People can ask whatever they want. Okay. Kosta, do you want to maybe just introduce yourself for the listeners at home?
Kosta: Sure. Kosta Stojilkovic, I'm one of the partners here at Wilkinson Stekloff. Question about the LabCorp case, and the discussion you guys had, and obviously we do a lot of class actions and both think about them intellectually and also in terms of how the money litigation sausages made and unmade.
Even if you're right, Will, about standing, why isn't the issue there? Because you used injunctions as an example. But there's a part of Rule 23(b)(2) that's about injunctive relief, and it does not require common impact or injury. So, if plaintiffs are trying to vindicate the principle of access to for people with certain disabilities or whatever the issue may be, there's a vehicle there.
But of course, as is the case, most of the time, it's instead of putative damages class, which is supposed to have common impact or injury. So, even if it's not a standing problem, why shouldn't somebody looking to represent a broader class with more damages claimants have to persuade the court to some level that the larger group they want to represent are indeed damages claimants.
Will: Yeah, I do think the more sympathetic way to think about this is is the Rule 23 route. I guess, maybe part of the question is at that point, how much are we talking about a bright line rule and how much work is going to be done by the appreciably factor. So, at that point, I'm sure at some level, if the most people in the class shouldn't be in the class, no district courts going to certify it. And if there are a few people in the class who are fine, then the district court might well say, “It's going to be easier to just include them in the class, and worry about the damages later.
And so, I think the question is, do we need some additional per se rule that when you are uninjured, it's not just that your damages are zero, I guess, but that you are uninjured, do we then need some special rule to make it harder to certify the class? Unless standing is doing the work of forcing us to do that, then I'm not sure why we can't just use the normal amount of fights we have about how big the class can be. I think the Supreme Court needs a special rule, because they don't want to just say to the district courts think hard about certifying these things, because the district courts are already supposed to do that.
It reminds me a little bit of the impulse that led the court to Twombly and Iqbal, the rules of civil procedure. There are lots of things they could have said about people occasionally granting complaints that bothered them, but it seemed like they needed to say something more dramatic, in part, because they didn't know how else to manage the district court process.
Dan: You're coming out swinging against your friends on the right side of the court, Will.
Will: They're all my friends, Dan.
Dan: [chuckles] You and Kosta are both part of the chief clerk network. Okay. Yeah, it does come down to, though, how you interpret that predominance requirement. I guess, I just don't totally know how to think about it. It does seem like maybe the LabCorp does have something like the appreciable number argument does make sense. If it's hundred people don't have an injury and two do, maybe it's the case that those common questions don't predominate.
Will: Right. I guess, to be sympathetic to LabCorp here for a second, if you're fundamentally saying the question here is, well, we make you use a kiosk. Is that illegal? Because when you use the kiosk, you have to get somebody to come help you, or you have to tell the person private information that a seeing person doesn't have to tell them. And then, it turns out that you say, “Well, look, actually, I don't mind having a person help me with the kiosk or like me, I just hate the kiosks.”
So, the fact that I had to skip the kiosk and talk to a person was fine, then that also makes the legal issue feel different, right? And so, maybe you'd say that the legal issue is not even common when you're talking about a mix of people who hate kiosks and are eager not to use them, and people who are stigmatized or hurt because they can't use them.
Dan: Who else? Beth is going to ask a question. Beth?
Beth: Yeah. I'm Beth Wilkinson, another partner at the firm Wilkinson Stekloff.
Dan: This is not a cross examination, just to be clear.
[laughter]
Beth: Well, that's good, because this is a question for you, Dan. You were talking about Coney Island Auto Parts, and you made it sound like our friend of the firm, Lisa Blatt, was going to easily win, there'd be this short opinion. Why then did all the other circuits come out against her and her client?
Dan: Yeah, that was an interesting wrinkle that we didn't get to. It's a little puzzling to me, it does seem like it's one of those cases where there's a cascade. The courts start doing this many decades ago in a world where text was a nice thing you might look at, but maybe you look at it, maybe you don't. They seem to be relying on some background equitable principle this instinct that, like, look, if it's really void, ab initio, it's always void. I think the lower courts hadn't really gotten to the point where they were like, “Let's really drill down with the text of these rules.” Gosh, this is creating a little bit of a problem. Maybe that does make you wonder, like, “Are there better arguments here that could have been surfaced?”
Will: Yeah. I think certainly some version of this traditional void dis-argument could better. But also, it could be that since nobody knows what a reasonable time is, it's not clear how much it matters. So, once you're on past dependence, where most the first court has said for Rule 60 before, it's anytime, you could agree with that, even if you think to yourself. And it's any time, because it's a reasonable time, or I'm not sure how much it matters.
Dan: Lisa was clever in the argument, because she said it can't be any time, because anytime could include an unreasonable time. But then, she didn't say any particular length of time wouldn't be reasonable. She said it could be many, many, many years. And so, I think that sets it up for a narrow win on the question presented. The question presented is going to be, “No, it can't be any time. It has to be reasonable time.”
Will: Right. I guess, part of the question, is reasonableness just a number? Is reasonable based on how many years it is or is reasonableness any number could be reasonable based on why it took you so long and how big the judgment is and so on?
Dan: Have time for a couple more maybe.
Will: Lisa's going to get really mad at us if she loses this case. We made it seem like it was so easy.
Dan: One over there. Another hat.
Roxy: Friend of the podcast, obviously. I'm Roxy Guidero. I'm a counsel here at the firm. I have a less legal question for you. But for any new podcast listeners, what's been your favorite episode you've recorded and one that you'd guide folks to listen to?
Dan: Oh, it's this one, of course. [Will laughs] Gosh, that's a good question. So, we are well over hundred episodes now, six seasons, and they all blur together for me. I think our most downloaded episode is-- Is it the post Dobbs Leak episode or is the post Dobbs Decision episode?
Will: I think it's the post Dobbs and Bruen maybe on the same day-
Dan: Oh yeah.
Will: -Decision episode. I think that's our most downloaded episode repeat.
Dan: I will say that those episodes are maybe not my favorite ones. My favorite ones are ones like this, where we dig into nerdy, more obscure procedural issues that are not going to get as much in the way of discussion on other podcasts, and where the arguments really can be about the specifics of the weird procedural rules. We can argue about the side issues in a case like Dobbs, but ultimately, the things that people care about for a case like that is should abortion be legal or not? I'm just less interested in having those conversations, and I do think that there's--
One thing that people do like about the show is we don't agree with about everything, but we're trying to bridge some disagreement. And one way we do that is we find those cases where we do think maybe there's a legal answer here that's not a underlying gut check, constitutional feeling issue there.
Will: Yeah. No, I agree. I'll say, part of the reason I became a lawyer is because I actually thought it was really hard in philosophy class to make headway on questions like-- I mean, even the very basic questions about what's right and wrong, and what do we owe to one another, and are you morally required to send all your money to starving children or something. But in law, what does Rule 60(b) say? That's actually something we can sometimes make progress on.
Dan: What do you think of the percentage of cases that the court hears? How many do you think have in your view? Do you think all of them have a clear legal right answer in your view, or do you think a lot of them-- It's really just too in-equipoise, and maybe you could find a side. Some of them do have a really clear legal answer.
Will: Clear legal right answer. Well, clear to me or--? [audience laughter]
Dan: Correct in the abstract that if everyone had brains as big as you, we could all get to the right answer.
Will: I guess, I think almost all of them have a right answer. Now, some of them have a right answer that predictably depends on your theory of interpretation. Like, if you are an originalist, you will see this is the right answer. And if you are Justice Breyer, you'll see this is the right answer. Since the right thing to do is be an originalist, downstream of that would be to come out with the right answer on a lot of them.
Now, they're not always clear to me, because sometimes I've only read the briefs and thought about it for a little while and talked to you, and I think, man, I need to study this harder. And in the right real-world conditions, that's too much to accept.
Dan: Typically, they're cases that have divided the courts of appeals. There's a lot of smart judges on the courts of appeals, and usually there's a reason, it’s because the arguments-- Sometimes the reason is just that we went down this path where one court said something and all the other courts went along. But sometimes it's just because the issues are really, really hard, and you've got different arguments cutting in different directions.
Will: Yeah.
Dan: Maybe we have time for one more?
Female Speaker: Who's the best writer on the Supreme Court?
Will: Well, we already have gotten in a lot of trouble for talking about this in our last episode.
Female Speaker: [unintelligible 00:53:38]
Will: Yeah. So, let's not talk about who is not the best writer, because I don't want to get in more trouble. I think I am contractually obligated to say it's the Chief Justice.
Dan: I think it's close. I think Justice Kagan is a better writer, at least has more those turns of phrase that you just admire.
Will: I think both the Chief and Justice Kagan are very good at that kind of writing. I guess, there is an honorable mention, Justice Gorsuch, who has a particular style. Some have called it that he just has this, when it's a case about the little guy, about why the law is on the side of the anti-discrimination plaintiff, or the person who wants a 12-person jury, or perhaps the guy who got hit by a New Jersey bus, he has this--
I actually think sometimes it goes too far. There are too many cute turns of phrase. But I have a weakness for it. It's the opinions that I'm teaching one of them tomorrow in class, those ones I have a weakness for. But I guess, we have to give it a tie to Kagan and the Chief.
Dan: All right. Well, I think we should close it out. So, I won't do our full closeout, but I will say thanks to everybody at Wilkinson Stekloff for hosting us here. This has been a ton of fun. If there is a long delay between this and our next episode, it will be because we've just decided to stay at the Salamander for the rest of our lives, and just get massages every day.
[applause]
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