Ames Semi-Final Round – March 22, 2017

Welcome to CR-CL’s Ames Live Blog!

Tune in below starting tonight, March 22 at 6:15 PM EST. The case summary below is courtesy of the BSA. Teams’ briefs and more information are available here.

Case Summary: For many years, Ames Meat has marketed Meaties, a snack product beloved in the State of Ames, as an “all meat treat.”  As it turned out, that was not entirely true–Meaties were held together by non-meat binding agents.  Plaintiff Willa Lowe, a frequent Meaties purchaser, brought a putative class action in the United States District Court for the District of Ames asserting a claim under the Ames Deceptive Trade Practices Act (ADTPA).  The ADTPA, however, contains a class-action restriction.  The statute provides that no consumer may bring an action under the ADPTA on behalf of a class; only the Ames Attorney General may bring suit under the ADTPA in a representative capacity.

After the close of class discovery and initial motions practice, the District Court denied Lowe’s motion for class certification on two grounds.  First, the Court held that the ADTPA’s class-action restriction applied in federal court, Federal Rule of Civil Procedure 23 notwithstanding, because the restriction was in effect substantive, and under a federal statute called the Rules Enabling Act, federal rules of civil procedure may not be applied in a way that abridges substantive state-law rights.  The District Court relied on Justice Stevens’s analysis from his concurrence in the Supreme Court’s decision in Shady Grove, in which the Court split 4-1-4 as to whether a similar–albeit non-identical–class-action restriction applied in federal court.  The District Court concluded that Justice Stevens’s concurrence was controlling because it provided the “narrowest” rationale for the Court’s decision.

Second, the District Court held in the alternative that Lowe’s proposed class of Meaties purchasers failed Rule 23’s implied “ascertainability” requirement, which mandates that it be “administratively feasible” for the court to determine whether a would-be class member is actually a member.  The District Court concluded that ascertainability requires the plaintiff to come forward at the class-certification stage with a reliable means of verifying class members’ claims to class membership.  According to the District Court, absent class members could not prove their membership through sworn affidavits attesting that they bought Meaties during the class period, and determining class membership could not be delayed until after certification.

The Ames Circuit granted interlocutory review on these two issues:

    1. Whether the ADTPA’s class-action restriction applies in federal court.
    2. Whether ascertainability requires the plaintiff to demonstrate an objectively verifiable means of identifying absent class members at the class-certification stage.

The Liveblog:

Rebecca Shafer March 22, 20178:19 pm

Nice work to all the participants and thank you to the judges!

Teresa Spinelli March 22, 20178:18 pm

Congratulations to all the participants! This was so inspiring to watch as a 1L.

Rebecca Shafer March 22, 20178:17 pm

Overall winner is the Plaintiff/Appellant, The John Hart Ely Memorial Team

Teresa Spinelli March 22, 20178:16 pm

Saris: Great application of the facts, instead of focusing exclusively on the theoretical legal issues.

Rebecca Shafer March 22, 20178:15 pm

Best brief (announced by Judge Saris): The appellee brief by The Rev. Dr. Pauli Murray Memorial Team

Teresa Spinelli March 22, 20178:15 pm

Best oralist: Any of you could have been the best oralist on any given day. Directly answering questions while pivoting to address most favorable issues, but the winner is:

David Phillips!

Rebecca Shafer March 22, 20178:14 pm

Torruella: “Like in all horse races, only one horse wins.” Everyone did an excellent job

Teresa Spinelli March 22, 20178:14 pm

Torruella: “It’s just one more case where I don’t agree with Justice Scalia. That doesn’t mean I’m right, of course!”

Teresa Spinelli March 22, 20178:13 pm

Saris: The second issue involves practical considerations that are difficult for students, lacking extensive practice experience, to address

Rebecca Shafer March 22, 20178:12 pm

Saris: This turned out to be an extremely difficult issue, even unusually so for a moot court, and everyone did a terrific job

Rebecca Shafer March 22, 20178:11 pm

Engelmayer says he sees a lot of briefs and these briefs and arguments are among the top 5% — extraordinary quality, really just fabulous work.

Teresa Spinelli March 22, 20178:11 pm

Engelmayer’s clerk: “Why don’t we get briefs like this more often?”

Teresa Spinelli March 22, 20178:10 pm

Engelmayer: extraordinary job to all– the oralists as well as the “wind beneath their wings” (the rest of the team)

Rebecca Shafer March 22, 20178:10 pm

Torruella: The program says that I should announce everything, but I split the duties among my colleagues

Rebecca Shafer March 22, 20178:09 pm

“All rise.” The judges are coming back into the courtroom!

Teresa Spinelli March 22, 20178:09 pm


Rebecca Shafer March 22, 20177:53 pm

The audience gives a standing applause… and now we wait for a decision

Rebecca Shafer March 22, 20177:52 pm

Everyone rises as the judges exit the courtroom to deliberate

Teresa Spinelli March 22, 20177:52 pm

The judges are retreating to their “chambers” to decide the case!

Rebecca Shafer March 22, 20177:51 pm

Ethridge: Underlying point is that this case involves many out-of-state residents, and it’s not ideal for the AG to represent them

Rebecca Shafer March 22, 20177:50 pm

Engelmayer: Is there room in the superiority analysis to not permit class action?

Teresa Spinelli March 22, 20177:50 pm

Torruella: You included a citation of one of my opinions in your brief, but were actually referring to a 2nd Circuit case.

Ethridge: admitted error but quickly pivoted back to substantive issues.

It was a quick moment of levity in the courtroom– the judge elicited a few chuckles. Now we are back in the gnarly civil procedure issues at hand…

Teresa Spinelli March 22, 20177:47 pm

Rebuttals are now beginning! (Appellants first)

Rebecca Shafer March 22, 20177:46 pm

Kamdar adds that part of the goal of the ascertainability requirement is to ensure that there is a class

Teresa Spinelli March 22, 20177:46 pm

Torruella: Are you asking us to create “judicial legislation” by adding a factor which hasn’t been used up to this point? Where does the ascertainability requirement come from?

Kamdar: Heightened ascertainability is implied by rules, and is accepted by the majority of the circuits.

Rebecca Shafer March 22, 20177:46 pm

Torruella asks where Rule 23 says that ascertainability is a requirement

Teresa Spinelli March 22, 20177:44 pm

Kamdar: remand is not necessary, although still arguing for broader decision

Rebecca Shafer March 22, 20177:43 pm

Kamdar suggests that the question before the court isn’t to choose between weakened or heightened ascertainability

Rebecca Shafer March 22, 20177:42 pm

Saris: If we decide on the basis of these facts, is the correct action to remand or to decide on a narrower standard?

Rebecca Shafer March 22, 20177:41 pm

Saris: Are there studies on this? Is fraud rampant in the class action world?

Teresa Spinelli March 22, 20177:41 pm

Kamdar: There is a miss-match between amount of prospective award to each member of the class, and the price of the product

Teresa Spinelli March 22, 20177:40 pm

Engelmayer: Your opponents have said that the outer bounds of damages can be determined before class certification based on the number of products sold (or their value). So, what is the risk to you and similarly situated parties?

Teresa Spinelli March 22, 20177:37 pm

Saris: Can you still win without a heightened ascertainability requirement? More narrow grounds?

Rebecca Shafer March 22, 20177:36 pm

Kamdar: The heightened ascertainability requirement would diminish the problem of finding people

Rebecca Shafer March 22, 20177:35 pm

Kamdar: When it comes to finding people, courts have to provide individual notice when reasonable, and courts take that seriously

Teresa Spinelli March 22, 20177:35 pm

Saris: Main problem with defining the class in class actions is trying to reach people– 8% return rate– not fraud. Since your client is the party that may have defrauded people, wouldn’t the default be to allow the class?

Rebecca Shafer March 22, 20177:34 pm

Kamdar: Part of the reason why courts have used the administrative feasibility language is to avoid individualized hearings or mini-trials

Rebecca Shafer March 22, 20177:33 pm

Saris: Why carve out an exception to affidavits for the class context? Just because they’re consumers?

Rebecca Shafer March 22, 20177:32 pm

Saris: You seem to be saying that affidavits can never pass muster

Teresa Spinelli March 22, 20177:31 pm

Saris: Can affidavits never be enough?

Teresa Spinelli March 22, 20177:31 pm

Kamdar: plaintiff must prove that there is an administratively feasible means of determining class members. Lowe has not done so.

Engelmayer: courts have not defined exactly what that means. “Heightened ascertainability?”

Rebecca Shafer March 22, 20177:29 pm

And last but not least, Kamadar is up to argue the second issue for the appellees

Rebecca Shafer March 22, 20177:29 pm

Dame-Boyle: Circuits are divided on how permissible it is to look at the dissent

Teresa Spinelli March 22, 20177:28 pm

Engelmayer: Can this court look at the dissent in Shady Grove?

Teresa Spinelli March 22, 20177:27 pm

Saris: procedures can have substantive effects, and still be “procedural”

Rebecca Shafer March 22, 20177:26 pm

Dame-Boyle: Perhaps CAFA will be amended in the future as more of these cases spring up, but Congress also indicated that it wanted the courts to be careful of separation of powers concerns

Rebecca Shafer March 22, 20177:25 pm

Engelmayer: Isn’t your real problem with CAFA? It’s only CAFA that catapults this into federal court, not Justice Stevens’ opinion

Teresa Spinelli March 22, 20177:25 pm

Dame-Boyle: statute implicates substantive issues, for example the alternative to class actions (state AG action)

Teresa Spinelli March 22, 20177:23 pm

Saris: why didn’t the state legislature express its intent to create a substantive statute?

Teresa Spinelli March 22, 20177:22 pm

Dame-Boyle: text and structure of the statute show that it is substantive

Rebecca Shafer March 22, 20177:21 pm

Dame-Boyle: Since Hanna the Supreme Court has made clear that its analysis there was not intended to collapse the procedural inquiry into one — the validity question is an additional hurdle

Rebecca Shafer March 22, 20177:20 pm

Engelmayer: If we harken back, isn’t it Hanna that you have a problem with?

Rebecca Shafer March 22, 20177:19 pm

Dame Boyle names 3 factors from Stevens’ approach and 2 from the plurality: to what limitation the state law applies (a textual functional analysis), where the limitation is located, and whether there are broader policy factors

Teresa Spinelli March 22, 20177:18 pm

Dame-Boyle: Here, there is a facially substantive state statute.

Rebecca Shafer March 22, 20177:17 pm

Dame-Boyle: This is the flip of the scenario in Shady Grove.

Rebecca Shafer March 22, 20177:16 pm

Saris: Rule 23 is procedural. Is there a safe harbor for you in Justice Stevens’ opinion and how it would apply here?

Teresa Spinelli March 22, 20177:15 pm

Dame-Boyle: It is possible to interpret rule 23 in such a way to avoid a conflict with the state statute.

Rebecca Shafer March 22, 20177:14 pm

Responding to a Engelmayer’s question whether Scalia’s analysis in Shady Grove means that her side loses, Dame-Boyle says that it makes it harder to win, but that there must be some look at the effects of the rule

Teresa Spinelli March 22, 20177:13 pm

Dame-Boyle: the plaintiff “cannot use federal procedure to circumvent that state substantive limitation.”

Rebecca Shafer March 22, 20177:11 pm

Ethridge has wrapped up and now Dame-Boyle is presenting for the appellees

Rebecca Shafer March 22, 20177:11 pm

Ethridge: The perjury liability is a steep penalty — a five-year sentence in prison — and that’s a sufficient level of deterrence for weeding out a lot of potential class members.

Teresa Spinelli March 22, 20177:11 pm

Saris: Does the default go to the consumer?

Rebecca Shafer March 22, 20177:10 pm

Saris: In most cases, an affidavit might well do the trick. But here, how could you ever really verify if a person bought the product with the bad label or the good one?

Teresa Spinelli March 22, 20177:10 pm

Ethridge: Pushes back against Judge Engelmeyer’s suggestion re. state AGs bringing suits instead of class actions: state AG is not a sufficient advocate for absent class members (who are in other jurisdictions.)

Rebecca Shafer March 22, 20177:08 pm

Ethridge: Heightened ascertainability works as a blunt instrument and it wipes out the case early on

Rebecca Shafer March 22, 20177:07 pm

Englemayer asks if the problems with ascertainability provide a compelling reason to give the AG the authority to bring the suit in a representative capacity. Can’t it be repackaged as a superiority concern?

Rebecca Shafer March 22, 20177:05 pm

Ethridge says that the heightened ascertainability requirement sought by the appellees cannot be squared with anything in Rule 23

Rebecca Shafer March 22, 20177:04 pm

But Engelmayer points out that a person needs to only see a product once in order to describe it

Teresa Spinelli March 22, 20177:04 pm

Saris: Three different but related products: How well could consumers really remember which they purchased?

Ethridge: asking class members to describe the product could address this concern.

Rebecca Shafer March 22, 20177:03 pm

Ethridge: Heightened ascertainability is not desirable generally. There’s no need to exclude products that were purchased in cash or to exclude products where it doesn’t make sense to keep a receipt.

Teresa Spinelli March 22, 20177:02 pm

Saris: “What happens at the end? What is the defendant’s due process right at the end, and should the courts consider that at the beginning” (class cert. stage)?

Rebecca Shafer March 22, 20177:01 pm

Ethridge: If the general outlines of the class are defined so that they can meet liability, that’s all that should be required for class certification

Teresa Spinelli March 22, 20176:59 pm

Saris: How would you verify individual members of the class? (As opposed to meeting the numerosity requirement.)

Teresa Spinelli March 22, 20176:58 pm

Engelmayer: this is relevant at the class-certification stage, not just damages (as implied by Ethridge)

Rebecca Shafer March 22, 20176:57 pm

Ethridge: She can be cross-examined, but for other members of the class, that’s a damages issue. Engelmayer says this is a liability not a damages issue, and as a matter of liability if the absent class member issues an affidavit — does the claims administrator sort out whether it’s true or does it go to a jury trial?

Rebecca Shafer March 22, 20176:56 pm

Engelmayer: How is it going to be proven that your client bought the meat product?

Rebecca Shafer March 22, 20176:55 pm

Now Ethridge is addressing the second issue

Rebecca Shafer March 22, 20176:53 pm

Philips is explaining why his team feels that Rule 23 is valid under the Rules Enabling Act: Because it “really regulates procedure” — and that should be the controlling law

Rebecca Shafer March 22, 20176:51 pm

Philips distinguishes between those mechanisms: Our opponents would have to show that there’s no other reason that our opponents banned class action but for a substantive purpose.

Rebecca Shafer March 22, 20176:50 pm

Engelmayer: Is it correct that the AG cannot bring a class action? Doesn’t that mean that every part of the statute is adverse to a class action, why isn’t that substantive?

Rebecca Shafer March 22, 20176:49 pm

Philips: Our reading does not mean that all cases will end up in federal courts

Rebecca Shafer March 22, 20176:49 pm

Engelmayer: Ames legislature’s class-action prohibition appears in the text of the statute rather than on its own. Philips responds by saying that the state could have included that provision in the statute for efficiency reasons and not because legislators wanted to make the rule into a substantive one

Rebecca Shafer March 22, 20176:43 pm

Philips: We think that states should not be in the driver’s seat when it comes to questions of federal procedure

Rebecca Shafer March 22, 20176:43 pm

Engelmayer: Why couldn’t Ames just say that as a matter of substantive law they don’t want the class action?

Rebecca Shafer March 22, 20176:42 pm

Philips: The Ames legislature could cap the number of litigants — a cap that would be treated as substantive

Rebecca Shafer March 22, 20176:42 pm

Engelmayer: How would you write the statute in Ames to prevent the statute from being litigated on a class basis in federal court?

Teresa Spinelli March 22, 20176:41 pm

Judge Torruella: “To what extent to you believe that Erie v. Tompkins is still good law?”

Torruella interjects almost immediately, asking what Justice Holmes would say to their argument.

Phillips argues that Erie does not apply.

Teresa Spinelli March 22, 20176:39 pm

“This case is about who gets to set the procedural rules in the federal courts.”

Rebecca Shafer March 22, 20176:39 pm

David Phillips starts off, arguing the first issue on the class-action restriction

Teresa Spinelli March 22, 20176:38 pm

The judges have been introduced, and now the Dean is introducing the members of each team. The oralists will be:

Jason Ethridge and David Phillips, Appellants

Alison Dame-Boyle and Adi Kamdar, Appellees

Rebecca Shafer March 22, 20176:31 pm

Dean Minow is now giving an introduction and setting the context of tonight’s competition: The Ames Courtroom was the first building constructed as a law school building.

Teresa Spinelli March 22, 20176:30 pm

“All arise!” Including one super enthusiastic person in the overflow viewing room. 🙂

Rebecca Shafer March 22, 20176:29 pm

We’re getting started! Judges have entered the courtroom

Teresa Spinelli March 22, 20176:20 pm

I’d like to introduce you to tonight’s judges:

Judge Patti B. Saris, Chief United States District Judge for the U.S. District Court for the District of Massachusetts

Judge Paul A. Engelmayer, United States District Judge for the U.S. District Court for the Southern District of New York

Chief Judge Juan R. Torruella, Judge for the United States Court of Appeals for the First Circuit.

Fun Fact: Judge Torruella is a four-time Olympian! He competed as a sailor in four summer olympics between 1964 and 1976.

Rebecca Shafer March 22, 20176:18 pm

Tonight’s teams are:

For the appellant, The John Hart Ely Memorial Team, with Jason Ethridge, David Phillips, Jenya Godina, Issac Park, David Beylik, and Derek Reinbold

For the appellee, The Rev. Dr. Pauli Murray Memorial Team, with Alison Dame-Boyle, Adi Kamdar, Elisabeth Carter, Dennis Howe, Tessa Gellerson, and Jonathan Topaz

Rebecca Shafer March 22, 20176:16 pm

Hello, hello! I’m Becky Shafer, a 2L, and I will also live blog tonight’s competition.

Teresa Spinelli March 22, 20176:11 pm

Hello and welcome to the Ames Semifinal round! I’m Terry Spinelli, a 1L at HLS, and I’ll be one of two Civil Rights – Civil Liberties Law Review members providing you with live updates during the competition tonight.

Written by

Lisa is a 3L at HLS. She’s from Boston, and lived in China, Indiana, Oregon, and Washington growing up. Before law school, she worked at M.I.T. and Kobre & Kim, a litigation boutique, in New York and Hong Kong. She received her A.B. in History & Literature from Harvard College.

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