In a brief opinion issued yesterday, written by Chief Judge Easterbrook, the Seventh Circuit articulates the rule that a Rule 8(c)(1) affirmative defense cannot be raised by a Rule 12(b)(6) motion. The particular defense at issue here was Indiana’s two-year statute of limitations, which seemed to the district court to block the prisoner-plaintiff’s § 1983 claim against prison administrators for having ignored his medical condition.
Since the Supreme Court decided Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), last year, the lower courts have been sorting out its implications. The case, stated broadly, stands for the proposition that Rule 23(a)(2)’s commonality requirement forecloses class certification in a multi-site or mult-store case, unless the defendant uses a policy common to the sites that is said to violate applicable substantive law.
In Crown Castle USA, Inc. v. Orion Construction Group, LLC, No. 09AP3029 (Wis. Sup. Ct., Mar. 22, 2012), the Supreme Court, in a 4-3 decision that will be surprising to collections practitioners, concluded that a Wisconsin judgment creditor, in proceedings supplemental to entry of judgment, may not compel anyone but the judgment debtor itself to testify about the debtor’s assets.
In La Crosse Tribune v. Circuit Court for La Crosse County, No. 10AP3120 (Wis. Ct. App., Mar. 15, 2012), the Court of Appeals left a newspaper seeking a statutory fee award for its success in obtaining access to public records in a trick box with no apparent way out.
In Marlowe v. IDS Property Cas. Ins. Co., No. 11AP2067 (Wis. Ct. App. Mar. 13, 2012), the Court of Appeals, resolving an issue of first impression in Wisconsin, held that a party to an arbitration under the Wisconsin Arbitration Act, Wis. Stat. ch. 788, may not, while the arbitration is pending, seek circuit court review of a decision by the arbitrators on the scope of discovery. As a separate and independent ground for its conclusion, the court held that, where arbitrators resolve a discovery dispute by interpreting a provision in the arbitration agreement, their decision is final and not subject to judicial review.
On February 9, the Seventh Circuit heard en banc the thorny issue of whether conducting a public high school graduation ceremony in a church violates the First Amendment. The panel decision, written by Judge Ripple and joined by Chief Judge Easterbrook, affirmed the Eastern District of Wisconsin’s ruling that holding the ceremonies for Brookfield Central and Brookfield East in the Elmbrook Church sanctuary did not offend the Establishment Clause. Judge Flaum dissented.
Ignoring established precedent from a superior tribunal is one way for a court to earn a sharp rebuke from a higher court. And that is precisely what happened in a consolidated decision today in Marmet Health Care Center, Inc. v. Brown, No. 11-391, and in Clarksburg Nursing Home & Rehabilitation Center LLC v. Marchio, No. 11-394, where the Supreme Court of the United States granted writs of certiorari to the Supreme Court of Appeals of West Virginia, vacated that court’s judgments, and remanded for further proceedings — a practice known as a “GVR,” drawn from the first letter of the three words “grant,” “vacate,” and “remand.”
Last September in Minn-Chem, Inc. v. Agrium Incorporated, the Seventh Circuit interpreted the Foreign Trade Antitrust Improvements Act (“FTAIA”), 15 U.S.C. § 6a, in a way that made it more difficult to plead a Sherman Act claim based on alleged anticompetitive behavior that occurred abroad. (The earlier post is here.) Specifically, the decision concluded that absent allegations of anticompetitive conduct that actually targets the U.S. import market, a plaintiff alleging foreign anticompetitive conduct must allege facts that, if proved, demonstrate a direct, substantial, and reasonably foreseeable effect on U.S. domestic or import commerce. Allegations that defendants collusively set sale prices in other countries that were a benchmark for U.S. prices are insufficient if the complaint does not explain how this benchmarking occurred and affected U.S. prices. (For a bit more about the panel decision and a link to its text, see the earlier entry here.)
The court reheard the case en banc on Wednesday, February 8. The bulk of the court’s questions came from Chief Judge Easterbrook and Judges Posner, Wood, and Hamilton. In general the questioning from those judges seemed hostile to the appellants’ view that the FTAIA defeated plaintiffs’ attempt to plead a Sherman Act claim based on allegations that defendants imported anticompetitively priced potash into the U.S. The en banc argument is available here.
In a decision that the Seventh Circuit issued on February 7, Chief Judge Easterbrook uses the occasion of a frivolous appeal from a district court’s judgment enforcing an arbitration clause to make a jurisdictional point and a procedural point. The failure of the winning lawyers to understand the first point nearly cost their client its lower court victory, and their failure to understand the second point did cost it an award of costs on appeal. There are lessons to be learned here.
The United States Supreme Court today held that the government’s placement of a GPS tracking device on a car while it was parked in a public parking lot was a search for Fourth Amendment purposes. The decision, written by Justice Scalia, makes clear that the Fourth Amendment’s protection against government trespass survives the “reasonable expectation of privacy” analysis of Katz v. United States, 389 U. S. 347, 351 (1967). Earlier cases by the Seventh Circuit, United States v. Garcia, 474 F.3d 994 (7th Cir. 2007), and the Wisconsin Court of Appeals in Wisconsin v. Sveum, 2009 WI App 81, aff’d on other grounds, 2010 WI 92, had held that GPS placements were not Fourth Amendment searches.