U.S. Chamber of Commerce

Removal Jurisdiction and the Class Action Fairness Act
Gay v. Morgan
No. 06-1471
Supreme Court of the United States

The Supreme Court declined to grant review to resolve a circuit split as to the burden faced by removing a defendant when it attempts to establish that plaintiff's complaint meets the applicable amount-in-controversy. The Third Circuit concluded that removing defendants must prove amount-in-controversy to a legal certainty while the majority of its sister circuits have required a mere preponderance of the evidence. The Chamber was a prime mover in obtaining congressional passage of the Class Action Fairness Act and this issue is vitally important to the proper functioning of removing class actions from state to federal court.

Amicus brief filed 6/6/07. Decision 10/1/07.

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Availability of Removal under the Class Action Fairness Act
Lowery v. Hanna Steel Corp., et al.
No. 06-16325-CC
United States Court of Appeals for the Eleventh Circuit

NCLC urged the Eleventh Circuit to review en banc a panel decision which improperly required defendants removing under the Class Action Fairness Act to provide clear evidence of federal jurisdiction and prohibited any jurisdictional discovery to determine whether the predicate facts supporting jurisdiction exist. In its brief, NCLC argued that such rules would encourage plaintiffs to avoid clarity in their complaints to avoid removal of their cases to federal court, a result contrary to congressional intent.

Amicus brief in support of rehearing en banc filed 5/9/07.

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Forum Non Conveniens under Rhode Island Law
Kedy v. A.W. Chesterton Co., et al.
No. 05-332-M.P.
Rhode Island Supreme Court

NCLC urges the Rhode Island Supreme Court to join virtually every other jurisdiction and adopt the well-established forum non conveniens doctrine. In its brief, NCLC describes the history of the doctrine and its virtually uniform acceptance. In this case, Canadian plaintiffs who suffered their injuries in Canada have taken advantage of Rhode Island's apparent lack of such a doctrine to avoid litigating the issue in their home forum.

Amicus brief filed 4/18/07.

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Rule 30(b)(6) and Default Judgments
Flexible Products Co., et al.
No. 1050931
Supreme Court of Alabama

Implicitly conceding that NCLC was correct, the trial court asked the Supreme Court to lift its stay so that the trial court can rescind its draconian order. In its brief, NCLC urged the state supreme court to order the trial court to reconsider the draconian, so-called "death penalty" sanctions it imposed on defendant companies for failing to properly designate a witness, or witnesses, who could testify to facts reasonably available to the company, pursuant to Rule 30(b)(6) of the Alabama Rules of Civil Procedure. In this case, the plaintiffs requested that the defendants designate a limited number of witnesses who could testify to a large array of facts over a twenty-year period. The companies countered that it would be impossible to submit a list of any fewer than eleven witnesses. The trial court disagreed, and entered a virtual default judgment against them. In its amicus brief, NCLC described the discovery landscape faced by large corporations served with 30(b)(6) notices and the detrimental impact the trial court's decision will have on discovery in Alabama cases.

Amicus brief in support of a Petition for a Writ of Mandamus filed 5/25/06. Trial Court's Request to Lift Stay filed 5/26/06.

General Jurisdiction over Internet Sales
Gator.com Corp. v. LL Bean, Inc.
No. 02-1535
U. S. Court of Appeals for the Ninth Circuit

Holding that "the bounds of our judicial power cannot be overstepped for the sake of expediency" and that there is no "live controversy", the court dismissed this case as moot because the parties' settlement agreement has resolved all facets of their dispute. NCLC had urged an en banc panel of the Ninth Circuit to rule that LL Bean, which has no brick-and-mortar presence in California, cannot be sued in California based on its sales in California over its interactive website under the doctrine of general personal jurisdiction. General jurisdiction usually requires "physical presence" in the forum state before a non-resident can be sued for claims that do not directly arise out of its contacts with the forum state. NCLC argued that the Ninth Circuit's rule - which evaluates a business's non-physical contacts to find general jurisdiction - is a dangerous and unwarranted expansion of federal court jurisdiction.

Motion for Leave to File and amicus brief in support of LL Bean filed 6/7/04. Motion for leave to file granted 6/17/04. Oral argument held 6/22/04. Case dismissed on mootness grounds 2/15/05.

Daimler-Benz Aktiengesellschaft v. Olson
Nos. 00-0791, 0792
Supreme Court of Texas

Contrary to NCLC's argument that the lower court ruling was unconstitutional, the court denied review of the decision which subjects a non-resident corporation. Here, the foreign parent of a U.S. subsidiary to state court jurisdiction when its only contact with the forum state was to operate an out-of-state Internet Web site accessible to state residents and appear in the federal court located in that state to protect a corporate trademark.

Amicus brief in support of petitions for review and mandamus filed 8/17/00. Review and mandamus denied 4/5/01.