Seventh Circuit Records First Video of Oral Argument

Those who follow the workings of the U.S. Court of Appeals for the Seventh Circuit are no doubt accustomed to visiting the court’s website (http://www.ca7.uscourts.gov) to read the daily release of published opinions or to listen to the court’s audio recordings of oral arguments. The former are available here; the latter are available here and normally are posted in the afternoon, a few hours after that morning’s oral arguments.

Court watchers now have a new option available from the Seventh Circuit: video of certain oral arguments. The court reviewed the practices of other courts around the country that video-recorded their oral arguments, and, on May 1, 2018, it adopted Operating Procedure 11, which allows for a “request for video-recording” to “be submitted to the Clerk of the Court not later than one week before oral argument.” The Operating Procedure further provides an opportunity for the parties to object and leaves the decision in the “sole discretion” of the argument panel. (The Operating Procedure notes that “[t]he panel will normally deny the request if one member objects.”)

The court appears to have put its new procedure—and video-recording capabilities—to use for the first time this week in Doe v. Purdue University et al., No. 17-3565, for which the court heard oral argument on September 18. The panel consisted of Circuit Judges Diane Sykes (presiding), Amy Barrett, and Amy St. Eve. The court has posted the video-recording on its website under the dropdown for “Opinions-Oral Arguments” (pictured below and available here). The audio recording is also available in the normal location.

Interestingly enough this case offered something of a hint as to how the court intends to use its new procedure. A third-party requested the recording, to which the appellant (Doe) consented and the appellees (essentially Purdue) objected (all accomplished by letter). The court “considered and rejected the objection” in a one-page order. The underlying letters are not available on the court’s docket, so the substance of the appellees’ unsuccessful objection remains a mystery.

Seventh Circuit Requires a Defendant Seeking Removal To Establish the Plaintiffs’ Article III Standing

Collier v. SP Plus Corp., a recent decision from the U.S. Court of Appeals for the Seventh Circuit, presented the “unusual circumstance” where both the plaintiffs and the defendant argued that the plaintiffs lacked standing to sue under Article III. No. 17-2431 (7th Cir. May 14, 2018). The court issued its opinion per curiam; Judges Daniel Manion, David Hamilton, and Amy Barrett were on the panel.

This unusual alignment arose because the defendant, SP Plus, had removed the case from Cook County Circuit Court in Illinois, where it was filed, and then argued in federal court that the plaintiffs’ case should be dismissed for lack of standing. The U.S. District Court for the Northern District of Illinois agreed and dismissed the case with prejudice, but the plaintiffs maintained that, without standing to sue under Article III, their case should not have been removed in the first place.

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Wisconsin Court of Appeals Issues Important Decision under “Borrowing” Statute

If your work involves civil litigation in Wisconsin, you’ve likely run across Wis. Stat. § 893.07, the state’s borrowing statute, which governs the application of foreign statutes of limitations to cases filed in Wisconsin. And, if you’ve had the occasion to consider § 893.07, you should make a note to remember Paynter v. ProAssurance Ins. Co., No. 2017AP739 (Mar. 27, 2018), a recent decision from District III of the Court of Appeals written by Judge Lisa Stark. The decision reached a number of important holdings related to the statute and, if we had to make a prediction, is likely to be reviewed by the Wisconsin Supreme Court.

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Wisconsin Court of Appeals Reinstates Tort Claims Against Operator of Firearms-Classifieds Website

The federal Communications Decency Act of 1996, in what is commonly referred to as “Section 230,” absolves from liability the “provider” of “an interactive computer service” when the plaintiff uses a theory of liability that “treat[s]” the provider “as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1) and (e)(3) (Oct. 1998). The law in this area has been evolving, but, as at least one commentator has noted, operators of websites with online classifieds have been relatively successful with their use of Section 230 as a shield from liability.

Daniel v. Armslist, No. 2017AP344 (Wis. Ct. App. Apr. 19, 2018), a recent decision issued by District I of the Wisconsin Court of Appeals, written by Judge Brian Blanchard of District IV, is a notable exception. The court held that the defendant Armslist LLC, which operated Armslist.com, a website with classifieds for private-firearms sales, could be held liable for tort claims filed by the family of a mass-shooting victim. Section 230, according to the court, did not “protect a website operator from liability that arises from its own conduct in facilitating user activity.” Id. ¶ 3.

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Seventh Circuit Returns to Full Strength

As Wisconsin lawyers well know, the U.S. Court of Appeals for the Seventh Circuit has been working with less than its fully authorized complement of eleven active circuit judges since Judge Terence Evans took senior status in January 2010.  The court continued with 10 active members until February 2015, when Judge John Tinder of Indiana retired. Then, in rapid succession last year, Judge Ann Claire Williams took senior status in June, and Judge Richard Posner retired in September, leaving two Illinois vacancies on the court and reducing the number of active judges to seven.
 
The work of the court continued, of course, with Senior Judges William Bauer, Kenneth Ripple, and Daniel Manion sitting regularly and the court calling on many district judges from the three states to sit with the court from time to time.  But the personality and character of a federal court of appeals inevitably derive over time from its active judges, who sit together year after year in randomly selected panels of three and who, sitting together en banc, are the only organ of the court authorized to overrule published panel decisions.
 
Given the long unfilled vacancies in Wisconsin and Indiana, the speed with which the court has been returned to its full strength of eleven judges seems astounding.
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