The Appellate Strategist : Appellate Lawyers & Attorneys for Updates on Trial Consultations, Amicus Briefs & Punitive Damage Awards

In Hardt v. Reliance Standard Life Ins. Co. (.pdf), the Supreme Court resolved a Circuit split on the issue of whether an ERISA attorney’s fees claimant must be a prevailing party to obtain a fee award  -- in short, the answer is “no.”  Instead, an ERISA fee claimant must only show “some degree of success on the merits,” which is not “trivial success on the merits” or “a purely procedural victory.”  Anticipating that the degree of success question could take on a life of its own, the Court stated that this standard is satisfied "If the court can fairly call the outcome of the litigation some success on the merits without conducting a “lengthy inquir[y] into the question whether a particular party’s success was ‘substantial’ or occurred on a ‘central issue.’” 

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In Martinez, the unanimous California Supreme Court affirmed the rulings of the lower courts by rejecting an attempt by agricultural workers to collect unpaid wages from food distributors who bought produce from that farm. In doing so, the court reviewed the history and jurisdiction of the Industrial Welfare Commission (IWC) and its work orders from 1916 to the present. The Court found that a civil action for unpaid wages authorized by Labor Code section 1194 was properly directed only to employers, and rejected attempts to expand the definition of "employ" as historically used by the IWC. For more Martinez case history, see the Employment-Compensation & Benefits update page.

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In March 2009, the California Supreme Court granted review in Hertz to address the issue of whether a worker’s inability to participate in vocational rehabilitation due to nonindustrial causes should be apportioned under Labor Code sections 4663 and 4664, as they were amended in 2004 by SB 899. The Court of Appeal had ruled that the statute required apportionment. (see H032438.) Briefing was complete, including several amicus briefs, and the matter was presumably waiting for oral argument. However, the Supreme Court has now dismissed this matter under Cal. Rules of Court, rule 8.528(b). As such, unless the court orders otherwise, the Court of Appeal opinion will remain unpublished

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During this morning's special session at the American Law Institute's Annual Meeting, Director Lance Liebman has announced that work is resuming on the Restatement (Third) of Torts: Economic Torts and Related Wrongs with Reporter Professor Ward Farnsworth. 

A few more details about the Institute's new project on insurance law have also become available.  Principles of Liability Insurance Law is expected to consist of three chapters: Principles of Contract Law in the Liability insurance Context, Principles of Liability Coverage, and Principles of Management of Insured Liabilities.

Finally, the Institute is in the earliest stages of "Principles of Government Ethics," which aspires to reflect the current state of this emerging area, as well as perhaps proposing a Model Statute.

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Last night, former Solicitor General Seth Waxman addressed the American Law Institute. He strongly endorsed the nomination of current Solicitor General Elena Kagan to the Supreme Court, stating that "It is and should be a foregone conclusion that she will be confirmed." Waxman told the members of having worked with Kagan in the weeks leading up to the reargument in Citizens United, the Court's decision striking down Federal limits on certain forms of corporate-financed electioneering, and being impressed with her brilliance.

Although many observers have suggested that Kagan's lack of judicial experience is a concern, Waxman noted that many of our greatest Supreme Court Justices came to the Court without appellate judging experience, including Robert Jackson, John Marshall Harlan and Earl Warren. Waxman argued that it was important for the Court to have members with the professional experience of learning from a broad cross-section of the country:

Elena Kagan's experience, although not judicial, will serve the country well.

Waxman also paid tribute to John Paul Stevens, the retiring Justice Kagan may replace. Describing Justice Stevens as a "consummate common law judge," Waxman said that arguing a case before him was both "a rare pleasure and a genuine terror." During his years on the Court, Waxman said that Justice Stevens has been an advocate of "judicial modesty," both substantive -- deference to the political branches, and reluctance to use the power to strike down statutes on constitutional grounds -- and procedural -- a cautious approach to choosing the questions the Court answers, and a strong preference for acting on the narrowest possible grounds.   According to former Solicitor General Waxman, judicial modesty "serves the structural balance that's essential to representative democracy."

On Monday, we reported on the remarks of Justice Stephen Breyer during the opening day of the ALI's meeting. Video of Justice Breyer's remarks is now available on the ALI's website, along with video from several additional speakers.

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The Florida Supreme Court recently decided, in a case of first impression, that a cause of action for third-party bad faith against an indemnity insurer cannot be maintained when the insurer’s actions were not a cause of the damages to the insured or when the insurer’s actions never resulted in exposure to liability in excess of the policy limits of the insured’s policies.  

In Perera v. United States Fidelity & Guaranty Co. (.pdf), the plaintiff’s husband, an employee of Estes Express Lines Corporation, was crushed to death by a piece of equipment, and his wife filed a wrongful death suit against Estes.  Estes had three insurance policies:  a $1 million commercial liability policy issued by Cigna, a $1 million excess worker’s compensation employer’s liability policy issued by USF&G, and a $25 million umbrella excess liability policy issued by Chubb.  USF&G denied coverage.  The parties entered into a settlement for $10 million, with Estes to pay $5 million, made up of $750,000 from Estes, $500,000 from Cigna, and $3.75 million from Chubb.  The remaining $5 million was to be sought by Estes or Perera in a lawsuit against USF&G. 

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In Simpson Strong-Tie Company, Inc., a manufacturer brought suit against an attorney who ran an advertisement regarding possible claims against the manufacturer's products and the trial court granted counsel's anti-SLAPP motion to strike. The California Supreme Court has now affirmed the judgment, holding that: 1) the plaintiff has the burden of proof in demonstrating the application of the commercial speech exception found in C.C.P. § 425.17(c) to anti-SLAPP motions and 2) the subject advertisement by counsel regarding potential claims against specified product manufacturers was not a statement by counsel “consisting of representations of fact about that person’s [i.e., counsel's] or a business competitor’s business operations, goods, or services.” As such, the advertisement did not fall within the commercial speech exception, and the manufacturer’s action was subject to an anti-SLAPP motion to strike. For more information regarding Simpson Strong-Tie Company, Inc., see the Civil Procedure/Evidence/Discovery update.

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Justice Stephen Breyer of the Supreme Court spoke this afternoon before a standing-room-only crowd at the Annual Meeting of the ALI. At Justice Breyer's suggestion, rather than making an address, he responded to questions from several ALI members.

ALI Director Lance Liebman asked how the Court's role as the final arbiter of so many crucial questions is compatible with democratic values. Justice Breyer responded that Alexander Hamilton's original answer from The Federalist had never been improved upon. Unless somebody enforces the Constitution, it becomes a dead letter. The power can't be given to the President, since that would be too much power. As a politically elected body, Congress can't be expected to pass judgment on their own statutes. Someone has to enforce the Constitution "when it's unpopular to do it," Justice Breyer said; anyone can do it when it's popular.

Justice Breyer was asked whether statutory and constitutional originalism, with its emphasis on text, history and precedent, was the more democratically legitimate approach for the Court to take to its work.  Justice Breyer disagreed with the view that there are no controls inherent in looking to purpose and consequence when it's appropriate which will prevent a judge from relying upon his or her subjective views.  In fact, if a judge is prepared to be honest, there are just as many checks and controls in an approach that incorporates purpose and consequence as in strict originalism.  The basic values and purposes stay the same, Justice Breyer said; it is the details as to how those values and purposes apply in a changing world that differ.

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The 87th Annual Meeting of the American Law Institute was called to order this morning by President Roberta Cooper Ramo. After the traditional opening remarks by the President of the American Bar Association, Carolyn B. Lamm, ALI Director Lance Liebman announced two new projects on which the ALI will soon begin work, on Election Law and Insurance Law. Director Liebman also noted that even though the third wave of Restatements has not yet been completed, it won't be long before the Institute begins work on the Restatements (Fourth).

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In its weekly conference, see list of actions, the California Supreme Court granted review in:

• Jankey v. Lee, in which the Court of Appeal held that the Americans with Disabilities Act does not preempt Civil Code § 55, which entitles the prevailing defendant to attorney's fees upon defeating a claim for injunctive relief under the California Disabled Persons Act. See Attorney-Related update page.

• Diaz v. Carcamo, in which the Court of Appeal rejected an employer's argument that by conceding its liability under respondeat superior it was shielded from a claim that it was independently negligent in its hiring and retention of that same employee. See Torts & Products update page. In doing so, the Court of Appeal in Diaz distinguished two prior cases which held that an employer is protected from a claim of negligent entrustment upon such a concession. See Armenta v. Churchill (1954) 42 Cal.2d 448 and Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853.

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Be sure to check back with Appellate Strategist beginning on Monday, when I’ll be live-blogging the Annual Meeting of the American Law Institute from Washington D.C. In addition to posts here, I’ll be one of a group of ALI members blogging the meeting on the ALI’s blog.

The ALI was founded in 1923. Membership is by election only, and is limited to 3,000 worldwide. Members include private practitioners, senior in-house attorneys, appellate judges, both from the U.S. and overseas, tenured law professors and senior government attorneys.

As many of our readers know, since the ALI's founding, members of the Institute have developed and published the Restatements of the Law.  For over 50 years, the ALI has collaborated with the National Conference of Commissioners on Uniform State Laws in preparing the Uniform Commercial Code.  Other ALI projects have resulted in the development of the Model Code of Evidence, the Model Penal Code, the Model Code of Pre-Arraignment Procedure, the Model Land Development Code, and the proposed Federal Securities Code.

The ALI has a busy schedule of debates planned for the three days of the Meeting. On Monday, the members will discuss the Model Penal Code: Sentencing and amendments to Article 9 of the Uniform Commercial Code. Tuesday, three draft Restatements will be up for debate: Property (Wills and Other Donative Transfers), Employment Law and the U.S. Law of International Commercial Arbitration. Finally, on Wednesday the members will discuss the draft Restatement (Third) of Restitution and Unjust Enrichment.

The members will hear from an exciting list of speakers as well. On Monday, ABA President Carolyn B. Lamm will speak during the opening session, and in the afternoon, Justice Stephen Breyer of the Supreme Court will address the membership on “Making the Constitution Work: A Supreme Court Justice’s View.” The featured speaker for Tuesday night’s member reception is former Solicitor General Seth P. Waxman. On Wednesday, Dean Christopher F. Edley, Jr. of the University of California, Berkeley School of Law will speak.

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The California Supreme Court has scheduled oral argument in seven civil cases, five at the end of May and two in Los Angeles at the beginning of June. These hearings should address a wide variety of issues, including:

• Do employees have a private right of action against employers who take some of the tips? See the Lu case in the Employment-Compensation & Benefits update.
• Should CA recognize the "Stray Remarks" Rule in discrimination cases? See the Reid case in the Employment - Other update.
• Can an insured sue an insurer for fraudulently inducing settlement and seek to avoid the release without returning the money already paid? See the Village Northridge Homeowners Assn. case in the Insurance update.
• Does an administrative proceeding constitute a “suit” to trigger insurance coverage? See the Ameron Internat. Corp. case in the Insurance update.  
• Are non-signatory heirs bound by an arbitration agreement signed by the decedent? See the Ruiz case in the ADR update.
• Does the damages enhancement for actions brought by elderly plaintiffs apply to §17200 actions? See Clark case in the Damages update.
• Are evidentiary objections not expressly ruled on regarding an MSJ motion preserved for appeal? See the Reid case in the Appeals & Writs update.
• What is the preclusive effect of the investigatory findings of a federal agency? See the Murray case in the Civil Procedure/Evidence/Discovery update.

These cases represent about 10% of the civil cases currently under review by the Court.

Update: Oral argument in Ameron has been continued to the September 2010 calendar.

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This morning, President Obama announced that Solicitor General Elena Kagan is his nominee to succeed retiring Justice John Paul Stevens on the Supreme Court. The President had this to say about his nominee:

Elena is widely regarded as one of the nation’s foremost legal minds. She’s an acclaimed legal scholar with a rich understanding of constitutional law. She is a former White House aide with a lifelong commitment to public service and a firm grasp of the nexus and boundaries between our three branches of government.

The President praised Kagan’s “fair-mindedness and skill as a consensus-builder,” and noted that during her time as Solicitor General, “she has won accolades from observers across the ideological spectrum for her well-reasoned arguments and commanding presence.”

In her remarks, Kagan called the Supreme Court “an extraordinary institution in the work it does and in the work it can do for the American people by advancing the tenets of our Constitution, by upholding the rule of law, and by enabling all Americans, regardless of their background or their beliefs, to get a fair hearing and an equal chance at justice.”

She also spoke of her passion for the law:

Because law matters; because it keeps us safe; because it protects our most fundamental rights and freedoms; and because it is the foundation of our democracy.

The full text of President Obama’s and Solicitor General Kagan’s remarks are available at the White House website.

Reactions to the Kagan nomination are beginning to come in from the Senate, including three members of the Senate Judiciary Committee: Chairman Patrick Leahy, Senator Amy Klobuchar and Senator Orrin Hatch, as well as Senate Republican Leader Mitch McConnell.

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An appellate court in Florida granted certiorari and quashed a lower court’s order requiring the Plaintiff to submit to a compulsory medical examination in the presence of a videographer hired by the Defendant.

In Prince v. Mallari (.pdf), Defendant served a notice of compulsory medical examination to be performed by a defense-retained physician.  The notice stated in bold type: “If the plaintiff videotapes the examination, Defendant will also videotape the examination, at its expense.”  Over Plaintiff’s objection, the trial court ordered that if Plaintiff was going to videotape the examination, then the defense should also be allowed to have a videographer present.

Florida’s Fifth District Court of Appeal quashed the order, and in so doing reaffirmed Florida case law that although the defense can require a plaintiff to submit to a compulsory medical examination pursuant to Fla. R. Civ. P. 1.360, defense counsel does not have the right to be present at the examination.  The court reasoned that because a compulsory medical examination is an “adversarial” proceeding, a plaintiff must be afforded certain protections such as the right to privacy, the right to have counsel present, and the right to have the examination videotaped.  A plaintiff’s videotape of a compulsory medical examination would typically be protected from production under the work product doctrine unless the videotape was to be introduced as evidence at trial.

Defendant argued that because he could not obtain Plaintiff’s videotape of the examination through discovery due to the work product privilege, the only way to be on equal footing at the examination and to insure the accuracy of the videotape was to have his own videographer present.  The Fifth DCA, however, disagreed and held that just because a plaintiff has an examination videotaped, that does not permit defense counsel to simultaneously videotape the examination. Otherwise, defense counsel could do by proxy what they are not permitted to do in person.

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In Runyon, the unanimous California Supreme Court ruled that whistleblowers employed with California State University do not have to exhaust their judicial remedies (i.e., petition for a writ of mandate) to bring a suit for damages, so long as they first exhaust their administrative remedies. While this ruling is consistent with previous whistleblower rulings by the high court, it expressly overturns the Court of Appeal opinion in Ohton insofar as it is inconsistent. While not mentioned, this instruction necessarily applies equally to Ohton II , which recently reaffirmed the portion of the original opinion addressed in Runyon. For more Runyon case history, see the Employment-Other update page.

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CBS News is reporting that President Obama will announce his nominee to replace retiring Supreme Court Justice John Paul Stevens on Monday morning.

In the weeks since Justice Stevens announced his retirement, the Appellate Strategist has profiled each of the short list candidates:

Solicitor General Elena Kagan

Judge Diane Wood of the U.S. Circuit Court of Appeals for the Seventh Circuit

Judge Merrick Garland of the U.S. Circuit Court of Appeals for the D.C. Circuit

Judge Sidney Thomas of the U.S. Circuit Court of Appeals for the Ninth Circuit

Justice Carlos Moreno of the California Supreme Court

Secretary Janet Napolitano of the Department of Homeland Security

Judge Kim McLane Wardlaw of the U.S. Circuit Court of Appeals for the Ninth Circuit

Leah Ward Sears, former Chief Justice of the Georgia Supreme Court

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Our series of profiles of potential nominees to replace retiring Supreme Court Justice John Paul Stevens continues with Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit.

Judge Garland’s credentials are impeccable.  An honors graduate of Harvard University and Harvard Law School, he clerked for Judge Henry Friendly of the Second Circuit and U.S. Supreme Court Justice, William Brennan.  He served as Special Assistant to the Attorney General of the United States from 1979 to 1981.  He then entered private practice with Arnold & Porter in Washington D.C.  In 1989 he returned to the Justice Department as an Assistant U.S. Attorney for the District of Columbia.  After three years, he returned to Arnold & Porter but in 1993 he returned once more to public service when he was appointed Deputy Assistant Attorney General in charge of the Criminal Division.  In this role he supervised a number of high profile cases such as the Oklahoma City bombing and the Unabomber case. It has been noted that Judge Garland’s background is very similar to that of Chief Justice Roberts.

President Clinton appointed Judge Garland to the D.C. Circuit in 1995.  His appointment was held up for political reasons.  Republican senators, then in the majority, had no issues with Judge Garland’s qualifications or judicial philosophy, but argued that the D.C. Circuit did not need additional judges in light of its case load.  Judge Garland was finally confirmed in 1997.

Judge Garland is widely recognized as an expert on antitrust and, particularly, administrative law.  Interestingly, in the 1980s Garland was involved in an academic debate over Cass Sunstein, currently Administrator of the White House Office of Information and Regulatory Affairs, and a person frequently mentioned as a potential Supreme Court candidate.  The subject of the debate was the scope and purpose of judicial review of administrative agencies.  Generally, Sunstein favored a “hard look” approach to agency decisions, scrutinizing them to assure that they had considered the interests of all relevant stakeholders.  Garland, by contrast, urged that the focus of review should not be so much upon representation but upon ensuring fidelity to the language and purpose of Congress. Other writings urge that the states be free to make policy choices and that federal regulations, particularly economic ones, should not preempt them.

The case load of the D.C. Circuit is atypical, with much of its business coming from the regulatory agencies.  Join us below the jump for a review of some of Judge Garland’s notable decisions.

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In the days following Justice John Paul Stevens’ announcement in April that he would step down from the Supreme Court, the speculative “short list” of candidates to replace him steadily lengthened. But one name that was mentioned almost immediately was Judge Diane Wood of the U.S. Court of Appeals for the Seventh Circuit.

At age 59, Judge Wood presently sits on the Seventh Circuit Court of Appeals (nominated by President Clinton in 1995) and is a senior lecturer at the University of Chicago School of Law (where President Obama previously taught). She had been a top candidate for Justice Souter’s prior vacancy, and interviewed with President Obama before the position ultimately went to Judge (now Justice) Sotomayor.

Judge Wood graduated with high honors and Order of the Coif from the University of Texas School of Law in 1975. She clerked for Justice Harry Blackmun in 1976. If nominated and confirmed to the High Court, she would be the only seated Justice who did not attend Harvard or Yale law school.

Judge Wood is an expert on antitrust and trade law, and has authored several books and articles on those subjects. She has also written numerous articles on the topic of individual liberty, including a comprehensive review of Justice Blackmun’s constitutional jurisprudence on individual liberty and “the right to be let alone.”

• "Justice Blackmun and Individual Rights.” 97 Dickinson Law Review 421 (1993).
   
• “Sex Discrimination in Life and Law.” 1999 University of Chicago Legal Forum 1 (1999).
   
• “The Bedrock of Individual Rights in Times of Natural Disasters.” 51 Howard Law Journal 747 (2008).
   
• “Katrina and the Rule of Law in the Time of Crisis: Natural Disasters and the Rule of Law in the Time of Crisis: The Bedrock of Individual Rights in Times of Natural Disasters.” 51 Harvard Law Journal 747 (2008) (Wiley A. Branton/Howard Law Journal Symposium).
   
• “The Rule of Law in Times of Stress.” 70 University of Chicago Law Review 455 (2003).
   
• “Our 18th Century Constitution in the 21st Century World.” 80 New York University Law Review 1079 (2005).

Join us below the jump for some of Judge Wood's notable opinions:

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Our series of profiles of possible Supreme Court nominees to replace the retiring Justice John Paul Stevens continues with the Secretary of Homeland Security, Janet Napolitano.

After finishing at the top of her class at Santa Clara University -- earning a Truman Scholarship and graduating summa cum laude with Phi Beta Kappa honors -- Napolitano attended the University of Virginia Law School. After clerking for Ninth Circuit Judge Mary Schroeder, Napolitano began ten years in private practice in Phoenix. While in private practice, Napolitano was part of the team representing Anita Hill in connection with her testimony at Justice Clarence Thomas' confirmation hearings. She also participated in the briefing in Air Line Pilots Ass'n v. O'Neill, 499 US 65 (1991), which involved the standards applicable to determining whether a union has breached its duty of fair representation.

Napolitano's public career began in 1993, when President Clinton appointed her United States Attorney for Arizona. During her five years in that position, she prosecuted over 6,000 immigration cases and made cross-border crime a priority. Napolitano also led the investigation of Michael Fortier in connection with the Oklahoma City bombing.

She was elected state Attorney General in 1998. During her four years in that position, she focused on consumer protection. A defender of the death penalty, Napolitano argued Ring v. Arizona, 536 US 584 (2002), where the Supreme Court held that permitting judges to determine the facts necessary to qualify a defendant for the death penalty violated the Sixth Amendment.

In 2002, Napolitano was narrowly elected Governor. In her first month, Napolitano proposed a budget eliminating a $1 billion budget surplus without tax increases. During her two terms, Napolitano:

• Focused on immigration issues, ordering the National Guard to the Mexican border and significantly toughening sanctions on employers for hiring undocumented workers;
   
• Promoted a prescription drug plan and improved care in long-term living facilities for seniors;
   
• Championed education reform, including voluntary full-day kindergarten programs; and
   
• Reformed the state's Child Protective Services.

When Napolitano proposed giving a children's book to every first-grader in Arizona, rather than funding the program through the state budget, she spent three years raising nearly a half-million dollars in private funds to make the program possible.

In 2005, Time named Napolitano one of America's Five Best Governors.  A year later, Napolitano was named by the White House Project as one of the eight women most likely to become the first female President.  Napolitano served as Chair of the National Governors Association from 2006 to 2007.  She was confirmed as the first woman Secretary of Homeland Security in January 2009. Secretary Napolitano's experience as a prosecutor and government official, dealing with the practical impact of the law on everyday lives, places her among the President's potential Supreme Court nominees from outside the realms of the Federal appellate courts and academia.

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