Russian law students at Udmurtia State University who attended Robert Gaudet’s lecture on massive justice through American class actions

On April 29, 2016, Robert J. Gaudet, Jr. made a presentation by Skype to law students at Udmurtia State University in Izhevsk, Russia. The Skype sessions are part of a six-year long program that is organized by Udmurtia State University in cooperation with the American Bar Association Section of International Law International Human Rights Committee (“IHRC”) which Mr. Gaudet used to co-chair for two years and for which he now serves as a member.

Mr. Gaudet’s spoke about American class actions.  There are no procedures for class actions in Russia so it was a novelty that one of the students had previously heard about.  Based on developments in Europe, where most countries did not have class actions 10 years ago but roughly half the countries now have class action procedures (albeit rarely used), Mr. Gaudet predicted that class actions would come to Russia within 10 to 30 years.  “They’re a good idea,” Mr. Gaudet explained in his presentation.

In a discussion during the presentation, Mr. Gaudet commented on the recent death of the musician Prince who has been discussed in the American media over the past week as a “worldwide icon.”  As it turns out, he is not an icon – at least with the new generation of twenty somethings and teens – in Izhevsk, Russia.  None of the students in Mr. Gaudet’s presentation had heard of the artist formerly known as Prince.  One student had heard of Prince’s former girlfriend, Kim Bassinger.  They were aware of Charlize Theron, “of course” they said, who appeared in a movie about class actions called “North Country” that Mr. Gaudet mentioned during the presentation.

Mr. Gaudet was prepared for his session by Andrew Solis, a law student at Southern Illinois University, who has been organizing presentations with mostly Illinois lawyers over the past year under the guidance of his Dean Cynthia Fountaine who is a member of the IHRC and has shown sustained commitment to the Russia Skype program over the past few years, enabling it to continue.  Past organizational support was provided by IHRC member Anna Caldwell.

The Russian Skype program is an invaluable way to build bridges between cultures and legal regimes.  Izhevsk is roughly 14 hours away, by train, from Moscow, and it’s the site where tanks and rifles were manufactured during the Cold War.  General Kalashnikov, who invented the famous rifle by his name, lived and was based in Izhevsk until his death a couple of years ago. Therefore, it is especially significant that the IHRC and the law department at Udmurtia State University have sustained this program over the past six years to develop bonds of mutual understanding, trust, and education between two countries that are often seen, in headlines, as being in geo-political and military tension with each other.

American lawyers who wish to make a presentation to the law students in Izvevsk may contact Mr. Gaudet, Mr. Solis, or the IHRC leadership for more information.  It could be a short presentation of 20 to 30 minutes with a list of vocabulary that is sent to the organizers in advance.  Time is left for discussion and a question-and-answer period.  Presentations generally last, in total, one hour.  CLE credit may be available for preparation and lecture time although lawyers will have to seek CLE credit through their respective bar associations.

The National Employment Lawyers Association (NELA), to which Mr. Gaudet belongs as a member, recently issued a letter to Speaker Paul Ryan in opposition to a Congressional bill that would cripple class actions by requiring an early showing, at the start, that all class members suffered a similar injury.  Click here to read NELA’s letter.  The bill would require an enormous expenditure of time and money to investigate each and every class member in a class action, some of which contain 9 million class members. This would have to be done without the benefit of discovery from the defendant.

NELA’s letter identifies the particular language in the bill that would be onerous:

Mr. Gaudet and his wife on New Year’s Eve in the Hague, the Netherlands, just one week after his admission into the U.S. Court of Federal Claims

In December 2015, Mr. Gaudet was admitted to the U.S. Court of Federal Claims. This admission will be useful for appearing in the Court to prosecute a Fair Labor Standards Act claim and to seek compensation for the victims of vaccinations.

Mr. Gaudet currently represents 290 U.S. Customs and Border Protection canine instructors with Fair Labor Standards Act claims against the U.S. Government, and this opt-in class action is being heard in the Court of Federal Claims.  Mr. Gaudet works with El Paso lawyer David Kern and San Antonio lawyer Mark Greenwald on this matter.  In November, Mr. Gaudet and co-counsel completed a plaintiffs’ motion for summary judgment that was filed with the Court.  The lawyers representing the U.S. Government in this matter work in the Civil Division of the U.S. Department of Justice.

As a member of this Court, Mr. Gaudet may also represent people who suffer injuries after taking vaccines. They are entitled to file claims with the Court to obtain compensation from a government-financed compensation fund.  The Court of Federal Claims processes claims for vaccine injuries and, as noted above, hears cases against the U.S. Government.

Applications to the Court require letters of recommendation from two members of the U.S. Court of Federal Claims as well as a certificate of good standing from a state bar association.

Prof. Dr. Detter de Frankopan Meeting Pope Francis at the Vatican Prior to Speaking With Polish Coal Miners About the Legal Consequences of the Pope’s Encyclical on the Environment

The Vatican recently called upon Prof. Dr. Detter de Frankopan for advice on the international legal impact of the encyclical, Laudato Si, which discusses the environment. Prof. Dr. Detter de Frankopan and Cardinal Peter Turkson had a private audience with Pope Francis.

Related to Prof. Dr. Detter de Frankopan’s legal advice, Pope Francis released Laudato Si, which is available here, on May 24, 2015. The full name of the document is “Encyclical Letter, Laudato Si, of the Holy Father Francis On Care For Our Common Home.”

The Encyclical likens earth to a sister and “mother” who “cries out to us because of the harm we have inflicted.” It asks people to protect bio-diverse systems in the Amazon, Congo, and elsewhere from “huge global economic interests which, under the guise of protecting them, can undermine the sovereignty of individual nations.” The Encyclical warns of transnational corporations with self-interested proposals to internationalize the Amazon as well as popular consumerism and the spread of a “throwaway culture,” a term the Pope has used in speeches. The Encyclical was inspired by St. Francis of Assisi who loved flowers and animals and spoke to the Earth, Sun, and Moon as his friends.

Pope Francis advocates for the abandonment of fossil fuels and their replacement with renewable energy. Although he is not a Catholic, Pres. Obama appears to agree with this general direction as he recently declined to establish a Keystone pipeline and, instead, said we should keep our fossil fuels in the ground.

The Pope’s Encyclical is not without controversy.   For instance, Catholic miners in Poland are concerned that they may lose their jobs as the result of the legal implementation of the Encyclical.

As a result, Prof. Dr. Detter accompanied Cardinal Peter Turkson to Poznan, Poland to explain to the miners that legal implementation would only occur very gradually. In addition to speaking with Polish miners, Prof. Dr. Detter de Frankopan and Cardinal Turkson attended an environmental conference, Pol-Eco System Conference.

The Pol-Eco System Conference: International Trade Fair of Technologies and Products For Sustainable Development and Municipal Services took place in Poznan, Poland from October 11 – 14, 2015. The conference featured special exhibitions on renewable energy, water management, environmental protection, and other matters. More information about the conference is available at this link.

The Encyclical reflects a belief in the common brotherhood of people and, even, in the unity of all earthly creatures: “Because all creatures are connected, each must be cherished with love and respect, for all of us as living creatures are dependent on one another.” This is reminiscent of Dr. Martin Luther King, Jr.’s assertion that we are all interconnected within a single web.

What is the role for lawyers? Prof. Dr. Detter de Frankopan advises the Vatican on international law and explains the legal ramifications of moral beliefs. Another example is New York lawyer Jenik Radon who advises sovereign nations on the risks in contractual agreements with the oil, gas, and mineral industry.   Mr. Gaudet and Mr. Radon currently advise a small landowner in Louisiana regarding negotiations with an oil and gas company that wishes to engage in fracking.

Lawyers have a role to play in writing normative values into legal contracts to ensure that the environment is not wasted or destroyed. They can give voice to weaker and less experienced parties, such as individual landowners or even small sovereign nations, in negotiations with multi-national oil and gas companies.

ABOUT RJ GAUDET & ASSOCIATES LLC: the firm is registered in Seattle with office addresses in El Paso, Berkeley, and The Hague. It consists of lawyers who are licensed in Texas, Washington, New Jersey, and the United Kingdom and who work across the United States with local counsel on litigation, class actions, international human rights, international law, wage and hour matters, environmental issues, and other types of cases. Prof. Dr. Detter de Frankopan is Of Counsel.

By Robert J. Gaudet, Jr.

In what is likely to yield a trickle rather than a tsunami of justice, Japan will allow class action-type lawsuits filed by consumer associations to seek damages in a new law that will take effect in December 2016.

On Sunday, October 24 at a Halloween barbeque of the Berkeley LLM students, I met a student from Japan, Shoichi Hara, who is on temporary leave from his position as a judge in Japan. We spoke about class actions. Judge Hara subsequently explained to me, by email, the status of Japanese class actions:

“In Japan, the Consumer Court Special Procedure Act (a Japanese-version of the class action) was promulgated on December 11,2013 and will be enforced within 3 years from that day, taking effect in December 2016. Since it has not been enforced yet, there are no cases now. The Act will allow only qualified consumer organizations to sue against business operators instead of allowing each consumer to file a lawsuit. There will be two steps in the procedure. In the first step, a court will decide the presence of legal liability. After declaring the legal duty of defendant in the first step, the court will inform relevant consumers of the procedure and decide each person’s amount of damage in a simple procedure.

Before the Consumer Court Special Procedure Act, Japan previously introduced another Special Act which enabled qualified consumer associations to file a lawsuit for injunction instead of consumers. The average number of cases per year (from 2009) is about 15, which is increasing, but there have not been so many yet. So, Japanese class action or other consumer protection systems have only just started.”

Judge Soichi Standing Before the University of California at Berkeley Law School

The Consumer Court Special Procedure Act will bring a slight advantage over the status quo. Presently, there are only a few procedural devices available: (1) joinder which, as in the United States, allows numerous individuals to file their own lawsuits and have them consolidated into a single action, (2) representative actions in which representatives can be appointed, upon explicit instructions from each one of the victims, to represent others with “common interests”; and (3) lawsuits for injunctive relief only filed by “certified” consumer associations that are pre-approved by the Prime Minister.[1]

With the new procedure, consumer associations will be able to file actions seeking damages. This is a slight improvement under the older law that only allowed consumer associations to seek injunctive relief. However, given the limited resources of consumer associations, it is not likely there will be a significant number of cases filed under the Consumer Court Special Procedure Act. If, as Judge Soichi reports, only 15 lawsuits for injunctive relief were filed by consumer associations under the older law that took effect in 2007, then similar numbers might be expected under the Consumer Court Special Procedure Act permitting them to seek damages.

There is a hint of paternalism in Japan’s approach. It will allow only consumer associations – not victims themselves – to prosecute lawsuits. And, under the older 2007 law, the Prime Minster has to pre-approve eligible consumer associations and may decertify any class action,[2] giving the Prime Minister the opportunity to exercise political influence over the prosecution of a case for injunctive relief.

Why don’t Japanese legislators trust victims and their lawyers to file suit as is done in the United States? As I mentioned at a conference in Brussels in 2012, Japanese legislators seem to have a paternalistic belief that victims and their lawyers cannot be trusted and that only a quasi-government association should be entrusted with the sacred duty of prosecution. There is no reason to believe a consumer association can prosecute suits more effectively or efficiently than the private bar. Nor am I aware of any empirical evidence to support the paternalistic approach.

The suits that Japanese consumer associations are allowed to file under the 2007 law are limited in scope to unjust contractual clauses and inappropriate solicitations.[3] In addition, the consumer associations must pre-notify the offender to give it a chance to fix the problem before the associations can file suit. It seems likely that similar restrictions may be placed on consumer associations seeking damages under the new law that becomes effective in December 2015.

In its own discussion over collective redress, various governments and actors who submitted comments to the European Union, also, expressed a preference for cases filed by consumer associations rather than private individuals. Therefore, it is not surprising that Japan drew from this European experience, including an irrational paternalism, in drafting its own legislation.[4]

From December 2016, it will be interesting to see how actively the consumer associations do – or do not – use their new powers to seek damages for consumers. Even more interesting, I am curious to see when Japanese legislators become willing to look beyond the paternalistic approach, gather empirical evidence, and brush aside mistrust of American-style class actions to devise a system that could, some day, invigorate the Japanese economy with a true tsunami of justice. But that day will have to wait for perhaps another decade or a subsequent generation.

[1] Sugawara, Ikuo, “The current situation of class action in Japan,” (undated), available at http://globalclassactions.stanford.edu/content/current-situation-class-action-japan (last viewed on Oct. 28, 2015).

[2] Id. at 12, 14.

[3] Id. at 11.

[4] Id. at 16 (“As a result, injunctive relief under the above mentioned consumer group actions was introduced by referring to the systems of the EU countries”).

Prof. Detter Receiving the Award in the Blue Hall at Stockholm Town Hall, Sept. 25, 2015

On September 25, 2015, Stockholm University in Sweden conferred the honor of “Doctor Jubilaris” upon Prof. Dr. Ingrid Detter who graduated from the faculty of law and went on to a D.Phil. at Oxford University and a second doctorate from Stockholm University; became the first female Fellow of St. Antony’s College at Oxford University; was elected to the Chair of International Law at Stockholm University; and served as Legal Advisor on International Affairs to the Pope, Saint John Paul II, for 25 years.

Prof. Dr. Detter attended the ceremony in Stockholm at the Blue Hall in the Stockholm City Hall, followed by a gala supper at the Golden Hall which is often called the “Little Noble Feast” since it occurs on the same premises as the annual Nobel Prize ceremony.

Prof. Dr. Ingrid Detter at the Gala Dinner With a Golden Mosaic Wall in the Background in the Golden Hall

The ceremony was conducted in Latin. Prof. Engelbrekt of Stockholm said, in Latin, that she had consulted with her colleagues in the law faculty and that they had selected Prof. Dr. Detter for this honor. In Latin, Prof. Engelbrekt said at the ceremony, “I order you to step forward to receive the sign of your honor.” And, then, she said, “I greet you, Jubilee Doctor” (again, in Latin) and “Good bye, distinguished Doctor” (in Latin as “Vale, clarissima, Doctor”). The program was performed in Latin to maintain the historical roots of this medieval tradition. Participants wore white tie and long evening dresses.

Prof. Dr. Detter de Lupis Frankopan was delighted to receive this honor bestowed by her colleagues on the law faculty. The Doctor Jubilaris is conferred under the auspices of King Carl XVI Gustaf of Sweden who officially serves as the head of the University.   The firm of RJ Gaudet & Associates LLC congratulates Prof. Dr. Detter for this recognition.

After receiving this award, Prof. Dr. Detter has embarked to Rome for a meeting with HH Pope Francis. She advised his predecessors on matters of international law. It was, perhaps, due to her impressive scholarship and work that Prof. Dr. Detter was recognized on September 25 by her peers. Her academic career started at Oxford University where she attained a D.Phil. under the supervision of Sir Humphrey Waldock who later served as President of the International Court of Justice.

Doctorate Conferred Upon Prof. Dr. Ingrid Detter With the Name of the Swedish King in Red Letters

U.S. Supreme Court justice Elena Kagan. Diego M. Radzinschi

By Arthur H. Bryant*

Two years ago, dissenting in American Express v. Italian Colors Restaurant, Justice Elena Kagan, referring to the civil procedure rule on class actions, wrote, “To a hammer, everything looks like a nail. And to a court bent on diminishing the usefulness of Rule 23, everything looks like a class action, ready to be dismantled.” The message to people and companies involved in class actions was clear: “Be afraid. Be very afraid.”

Last term, the U.S. Supreme Court basically left class actions alone. This upcoming term, however, the court has already agreed to hear four cases that could dramatically restrict or terminate class action litigation in numerous ways. The concern is real. Will the court keep hammering class actions or let them be?

To understand why so many are worried, just look at the decisions that prompted Kagan’s remarks. In 2011, AT&T Mobility v. Concepcion effectively held that the Federal Arbitration Act gave corporations the power to violate state laws and use mandatory arbitration clauses in their form contracts to bar customers and workers from bringing class actions against them.

Wal-Mart Stores v. Dukes announced several new rules making it harder to prosecute cases as class actions and precluded the courts from determining whether the country’s largest private employer was discriminating against its female workers nationwide.

In 2013, neither Comcast v. Behrend, an antitrust case, nor Genesis Healthcare v. Symczyk, a Fair Labor Standards Act case, presented the questions the court heard them to address. But, instead of dismissing them, the court stopped both from proceeding as class actions on grounds not addressed by the parties.

Finally, in American Express, the court held corporations could use mandatory arbitration clauses to ban class actions when, as a practical matter, that prevented their customers from vindicating their substantive rights and let the companies illegally obtain billions.

FOUR NEW CHALLENGES

Against this background, the court’s decision to hear four new challenges to class actions has understandably raised grave concerns. Tyson Foods v. Bouaphakeo, attacking a $5.8 million jury verdict against the company for underpaying its workers, raises two questions: first, whether the trial judge should have permitted Tyson’s workers to rely on statistical sampling to establish liability and damages; and second, whether a class can be certified that contains some members who have not been injured and have no legal right to damages.

But statistical sampling has been used to establish liability and damages in cases for years. And classes have always been certified even though they contain some members who have not been injured and are not entitled to damages. For ­example, even if an employer is discriminating against women in hiring, unqualified female job applicants would not have been injured or be entitled to damages. That fact has never stopped class actions charging gender discrimination in hiring from proceeding.

In Spokeo v. Robins, a Fair Credit Reporting Act case, the company, charged with publishing inaccurate information and failing to provide legally required notices, contends that Congress cannot constitutionally give people the right to seek statutory damages, individually or collectively, when corporations violate the law.

Based on this rationale, it urges the court to bar class actions for statutory damages authorized by Congress to enforce the Truth in Lending Act, Fair Debt Collection Practices Act, Telephone Consumer Protection Act, Employee Retirement Income Security Act, Real Estate Settlement Procedures Act, Lan­ham Act, Fair Housing Act, Americans With Disabilities Act, Video Privacy Pro­tection Act, Electronic ­Communications Privacy Act, Stored Communications Act, Cable ­Communi­cations Privacy Act, Migrant and Seasonal Agricultural Work­er Protection Act, Expedited Funds Avail­ability Act, Home­owners Protection Act, Equal Credit Opportunity Act and the Driver’s Privacy Protection Act.

Campbell-Ewald v. Gomez presents the question the court granted review of Genesis Healthcare to decide: whether defendants can stop class actions and render them moot by offering the individual class representatives their full damages and the class members ­nothing. Since Genesis Healthcare, the lower courts have unanimously agreed that Kagan’s dissent in that case was right: the answer is no. But the court took the case ­anyway.

And, in DirecTV v. Imburgia, which charges early-cancellation penalties imposed on consumers were illegal, the company’s 2007 customer agreement said its mandatory arbitration clause was invalid if the clause’s class action ban violated “the law of your state.” It did. AT&T Mobility later held federal law pre-empted that state law, but the lower court found that didn’t matter — because the parties’ agreement was to follow state law. Contract interpretation is supposed to be governed by state law, which the Supreme Court does not create. The court could, however, still find a way to enforce the class action ban.

These cases are important to everyone in America. While they involve class actions — a procedural device — what’s at stake are the substantive and constitutional rights class actions are designed to preserve and enforce. When corporations or the government harm many people or businesses, class actions are often the only way that justice can be done.

The court will be deciding whether class actions can continue to be used, as they have been, to enforce state and federal consumer protection, employment, civil rights, civil liberties, environmental and other laws — and the state and U.S. constitutions. If it keeps hammering nails in class actions’ coffin, it could be burying significant portions of these laws as well. We will see.

*Arthur H. Bryant is the chairman of Public Justice, a national public interest law firm dedicated to advancing and preserving access to justice for all. His practice focuses on ­consumers’ rights, workers’ rights, civil rights, environmental protection, and corporate and government accountability.

[Reprinted from the National Law Journal (Sept. 7, 2015) with permission of Arthur Bryant, chairman of Public Justice.  Mr. Gaudet is a member of Public Justice.]