Seventh Circuit Review
Volume 9, Issue 2 (Spring 2014)
Introduction (contains Table of Contents, Masthead, About the Seventh Circuit Review, and Preface)
Laundry and Cable Television: How the Seventh Circuit Preserved Consumer Protection Class Action Litigation from Washing Down the Tubes
Stephen D. Pauwels
9 Seventh Circuit Rev. 234 (2014) [Full Article] [Audio Synopsis]
Abstract: Class actions are an essential tool for plaintiffs seeking relief from relatively minor harms. In recent years, the Supreme Court has handed down a collection of rulings that seem to have created additional hurdles––or heightened those already in place––to obtaining class certification under Federal Rule of Civil Procedure Rule 23. One such ruling, Comcast v. Behrend, seemed to have enhanced the predominance requirement and thus raised speculation from various commentators about the ability of plaintiffs to bring class actions where resolution of liability and damages questions are raised for the entire class. [Read more...]
The Seventh Circuit, in Butler v. Sears, Roebuck and Company, upheld class certification for two subclasses seeking damages for various mechanical issues with Sears-manufactured washing machines. In doing so, the court confirmed that the commentator's concerns about the possible far-reaching implications are misplaced.
The Comcast Court ruled that where a class seeks a classwide award of damages, the damages sought must be susceptible to classwide determination. The Seventh Circuit, on remand from the Supreme Court, held that the issues considered in Comcast are inapplicable where plaintiffs only seek determination of liability, and not damages, on a classwide basis. The court pointed to Rule 23(c)(4), which explicitly permits bifurcation of litigation as a quasi-end-run around the limitations the Comcast Court seemingly created.
The Seventh Circuit's reasoning is best understood through two additional cases, Ira Holtzman, CPA v. Turza, and Parko v. Shell Oil. These cases help define the court's predominance jurisprudence and direct district courts, who are similarly in lock-step, in their predominance determinations.
Commentator's worries, therefore, are unfounded. The Seventh Circuit, in unison with those circuits who have ruled on the issue, appropriately limited Comcast's reach to cases where (1) plaintiffs seek classwide determination of damages, rather than bifurcating their suits under 23(c)(4) or (2) fail to present a damages model that is consistent with the injuries alleged. As Justice Ginsburg noted in dissent the "opinion broke no new ground on the standard for certifying a class action under Rule 23(b)(3)."[Condense Abstract]
Judge Posner Got It Right: Requiring Abortion Doctors to Have Hospital Admitting Privileges Places an Undue Burden on a Woman Seeking an Abortion
Kelly K. Koss
9 Seventh Circuit Rev. 263 (2014) [Full Article] [Audio Synopsis]
Abstract: Anti-abortion activists have sought to undermine and restrict a woman's right to choose ever since 1992, when the Supreme Court replaced Roe v. Wade's strict scrutiny analysis with the looser undue burden test in Southeastern Pennsylvania v. Casey. Under Casey's undue burden test, a state regulation cannot have the "purpose or effect of placing a significant obstacle in the path of a woman seeking an abortion of a nonviable fetus." However, the Casey Court failed to define the types of regulations that would run afoul of the undue burden test and create a "substantial obstacle" in the path of a woman seeking an abortion. [Read more...]
As a result of this ambiguity, anti-abortion advocates have spent the last two decades trying to test the boundaries of the undue burden test. One popular approach has been to promulgate incremental regulations that chip away at a woman's right to seek an abortion. Targeted Regulation of Abortion Providers (TRAP) laws are one form of these incremental regulations. One such TRAP law is at issue in the Seventh Circuit's case Planned Parenthood of Wisconsin Inc. v. Van Hollen. The TRAP law at issue was a Wisconsin law requiring abortion doctors to have admitting privileges at a hospital within thirty miles of a clinic where an abortion is performed.
Although the question before the court was technically limited to whether the preliminary injunction prohibiting the Wisconsin law from going into effect was justified, Judge Posner reasoned that that law was unconstitutional and should be struck. When the Supreme Court decides to hear a case involving a similar admitting privileges TRAP law, the Court should use Judge Posner's reasoning as a guide to strike down the law. These admitting privileges statutes are unconstitutional because: (1) these laws place an undue burden on a woman seeking an abortion by dramatically impacting the practical availability of abortion within a state; (2) these laws bear no rational relationship to their purported purpose of protecting maternal health; and (3) these laws violate equal protections of the law by singling out abortion doctors for increased oversight.[Condense Abstract]
Yes, We Were Wrong; No, We Will Not Make It Right: The Seventh Circuit Denies Post-Conviction Relief from an Undisputed Sentencing Error Because It Occurred in the Post-Booker, Advisory Guidelines Era
Gregory S. Dierdorf
9 Seventh Circuit Rev. 301 (2014) [Full Article] [Audio Synopsis]
Abstract: Federal courts disfavor granting collateral relief from final criminal judgments. This mentality is premised on a need for finality in the criminal process; the idea that, at some point, a criminal case must come to an end. Post-conviction relief is available, however, where an error in the trial court causes a miscarriage of justice that must be remedied to preserve the integrity of the criminal justice system. [Read more...]
For example, the Seventh Circuit has granted post-conviction relief where the sentencing court miscalculated the defendant's prison sentence by misapplying the career offender-sentencing enhancement under the then-binding Federal Sentencing Guidelines. However, the court has declined to extend this holding to allow similar relief where the defendant was sentenced under the "merely advisory" Sentencing Guidelines. According to the Seventh Circuit, this sentencing error is less serious where the judge is not bound to impose a sentence within the miscalculated sentencing range, and does not give rise to a miscarriage of justice that can be remedied through post-conviction relief.
In Peugh v. United States, the Supreme Court held that a misapplication of advisory Sentencing Guidelines could violate the Ex Post Facto Clause of the Constitution. Despite the Court's recognition that, while the advisory Guidelines are no longer binding on sentencing judges, the Guidelines still achieve "binding legal effect," the Seventh Circuit, in Hawkins v. United States, declined to alter its stance regarding the availability of post-conviction relief from sentencing errors under the advisory Sentencing Guidelines. This Comment argues for a different result.[Condense Abstract]
Don't Break the Safety Valve's Heart: How the Seventh Circuit Superimposes Substantial Assistance on the Mandatory Minimum Safety Valve's Complete Truthful Disclosure Requirement
Adrienne N. Kitchen
9 Seventh Circuit Rev. 328 (2014) [Full Article] [Audio Synopsis]
Abstract: Congress passed the safety valve to mitigate the disparate and often harsh sentences mandatory minimums impose on low-level drug defendants. But judicial interpretation continues to impose disparate sentences. In 2014, in United States v. Acevedo-Fitz, the Seventh Circuit reaffirmed its position in an ongoing circuit split regarding the safety valve. The safety valve requires defendants to meet five criteria, the fifth—sometimes called the heart of the safety valve—requires defendants provide complete truthful disclosure to prosecutors prior to sentencing. Judges interpret this requirement as imposing a burden on defendants to prove they met all five criteria without requiring the government to prove a defendant failed to provide complete truthful disclosure. [Read more...]
The circuit split regards whether a defendant may lie before telling the truth and still qualify for the safety valve. The Seventh Circuit holds one lie precludes safety valve relief. It imposes an additional restriction, essentially adding a prerequisite that defendants substantially assist prosecutors. However, Congress passed the safety valve because the substantial assistance provision failed to assist low-level defendants, and the plain language of the safety valve imposes no requirements that the truthful disclosure assist the government. This reading frustrates Congressional intent, as many other circuits recognize. To comport with Congressional intent, the Seventh Circuit should utilize a plain-language reading of the statute, and not superimpose a substantial assistance prerequisite on the fifth element of the safety valve.[Condense Abstract]
Conference, Conciliation, and Persuasion: The Seventh Circuit's Groundbreaking Approach to Analyzing the EEOC's Pre-Suit Obligations
Lisa M. DeLeon
9 Seventh Circuit Rev. 370 (2014) [Full Article] [Audio Synopsis]
Abstract: In EEOC v. Mach Mining, LLC, the Seventh Circuit sharply diverged with its sister circuits when it held that the Equal Employment Opportunity Commission (EEOC)'s statutorily mandated conciliation process is immune from judicial review. In Mach Mining, the Seventh Circuit addressed the provision contained in Title VII of the Civil Rights Act of 1964 that requires the EEOC to engage in "informal methods of conference, conciliation, and persuasion" with an employer before it can file a discrimination lawsuit against that employer. These pre-suit negotiations, or "conciliation," provide an opportunity for the EEOC to reach an out-of-court agreement with an employer without seeking judicial remedy. Although Title VII requires that conciliation occur before the EEOC can file its lawsuit, the Seventh Circuit held that the EEOC's conciliation process is not—and should not be—subject to any level of judicial review. In other words, courts may not conduct any investigation whatsoever into any aspect of the EEOC's conciliation efforts. [Read more...]
At first glance, it seems as though the Seventh Circuit has taken an extreme approach to interpreting the conciliation requirement. Upon closer examination, however, it becomes apparent that the Seventh Circuit's interpretation of the conciliation requirement is fully consistent with the text and purpose of Title VII. The language of Title VII does not authorize judicial review of the conciliation process. On the contrary, Title VII effectively insulates the conciliation process from judicial scrutiny by granting the EEOC full discretion in defining and executing the conciliation process and by requiring that the process remain confidential. Furthermore, allowing judicial review of the conciliation process undermines both the purpose of conciliation and the spirit of Title VII. As the Mach Court noted, "[t]here is no indication that Title VII's directive to conciliate was for the special benefit of the employers or that they have a right to conciliation."1 Rather, "Congress was focused on effective enforcement of the anti-discrimination standards of Title VII, not creating new rights for employers."2 The EEOC's General Counsel, David Lopez, aptly summarized the result in Mach, stating that "[the Seventh Circuit] carefully applied the letter of the law ... in a way that promotes Title VII's goals, protects victims of discrimination, and preserves the EEOC's critical law-enforcement prerogatives."3
1 EEOC v. Mach Mining, LLC, 738 F.3d 171, 175 (7th Cir. 2013).
2 Id. at 180.
3 EEOC, EEOC In Landmark Ruling, Seventh Circuit Holds Employers Cannot Challenge EEOC Conciliation, at http://www.eeoc.gov/eeoc/newsroom/release/12-20-13b.cfm (Dec. 20, 2013).
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