Federal Bar Update: Supreme Court takes rare steps on procedural decisions

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FedBarMaley-sigWith its limited docket, the U.S. Supreme Court rarely decides procedural issues, focusing instead on weighty constitutional issues or resolving split interpretations of federal statutes. This term, however, the Supreme Court has addressed several procedural issues.

Class actions – In Standard Fire Ins. Co. v. Knowles, (March 19, 2013), plaintiff brought a class action in state court and stipulated not seeking more than $5 million. Defendant removed asserting diversity and that the amount in controversy met the $5 million threshold under the Class Action Fairness Act. The District Court remanded based on plaintiff’s stipulation as to damages.

The Supreme Court reversed, holding that plaintiffs bringing class actions cannot escape federal jurisdiction by promising to seek less than $5 million in damages. The court – in interpreting the Class Action Fairness Act – ruled that a plaintiff has no power to bind other class members.

In Amgen v. Connecticut Retirement Plans & Trust, (Feb. 27, 2013), the court ruled in a securities 10(b)(5) action that while plaintiff “certainly must prove materiality to prevail on the merits, we hold that such proof is not a prerequisite to class certification.” The court explained, “Rule 23(b)(3) requires a showing that questions common to the class predominate, not that those questions will be answered, on the merits, in favor of the class.”

By contrast, in Comcast Corp. v. Behrend, (March 27, 2013), the court ruled that class certification was improperly certified in the antitrust case. The lower court needed to decide whether the named plaintiffs’ proposed damages model could show damages on a class-wide basis. That this issue intertwined with the merits did not matter.

The court explained: “A party seeking to maintain a class action must be prepared to show that Rule 23(a)’s numerosity, commonality, typicality, and adequacy-of-representation requirements have been met, and must satisfy through evidentiary proof at least one of Rule 23(b)’s provisions. Courts may have to ‘probe behind the pleadings before coming to rest on the certification question,’ and [a] certification is proper only if ‘the trial court is satisfied, after a rigorous analysis, that [Rule 23’s] prerequisites …have been satisfied.’”

Collective FLSA action – In Genesis Healthcare Corp. v. Symczyk, (April 16, 2013), the underlying case was an FLSA suit on behalf of plaintiff and other “similarly situated” employees. Defendant made an offer of judgment to plaintiff for the full amount of plaintiff’s claim. No other claimants had opted in.

The Supreme Court held that the District Court lacked subject-matter jurisdiction when named plaintiff’s claim became moot by the full Rule 68 offer of judgment and no other claimant had opted in. The court noted that the plaintiff did not challenge mootness, and also noted differences between FLSA collective actions and class actions.

Increased filing fee Effective May 1, civil filing fees increased to $400 for filing a new civil action.

Updated benchbook for U.S. District judges – The 6th edition of this benchbook, published by the Federal Judicial Center, is publicly available as a pdf at: Search in publications for “benchbook.”

Save the date – The annual Federal Civil Practice 3-hour CLE seminar will be Thursday, Dec. 19 from 1:30 – 4:45 p.m. in Indianapolis.

Run with other attorneysThe 5th annual Joseph Maley Foundation 5k Run, Walk, Roll is set for 9 a.m. July 13 at Eagle Creek Park in Indianapolis. This event is well attended by area attorneys. To register or sponsor, see•


John Maley – – is a partner with Barnes & Thornburg LLP, practicing federal and state litigation, employment matters and appeals. The opinions expressed are those of the author.


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  1. This is ridiculous. Most JDs not practicing law don't know squat to justify calling themselves a lawyer. Maybe they should try visiting the inside of a courtroom before they go around calling themselves lawyers. This kind of promotional BS just increases the volume of people with JDs that are underqualified thereby dragging all the rest of us down likewise.

  2. I think it is safe to say that those Hoosier's with the most confidence in the Indiana judicial system are those Hoosier's who have never had the displeasure of dealing with the Hoosier court system.

  3. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  4. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  5. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.