New York Times
Supreme Court to Hear Cases on Death Penalty and Class Actions
April 30, 2018
by Adam Liptak
WASHINGTON — The Supreme Court added three cases to its docket on Monday, agreeing to hear disputes about lethal injections, class-action settlements and arbitration.
The court agreed to hear an appeal from a death row inmate in Missouri with a rare medical condition that he says will cause excruciating pain if he is put to death by lethal injection. Lawyers for the inmate, Russell Bucklew, said his condition, cavernous hemangioma, would make him choke on his own blood during his execution.
In 2015, in Glossip v. Gross, the Supreme Court ruled against inmates challenging Oklahoma’s lethal injection protocol, saying they had failed to identify an available and preferable method of execution.
In the new case, Bucklew v. Precythe, No. 17-8151, Mr. Bucklew did propose an alternative, saying lethal gas was preferable to the state’s current method of an injection of a lethal dose of pentobarbital. But the United States Court of Appeals for the Eighth Circuit, in St. Louis, ruled in March that Mr. Bucklew had not shown that his alternative would be less painful.
Mr. Bucklew was convicted of murdering a man who had been seeing his former girlfriend and of kidnapping and raping her. The Supreme Court stayed his execution in March by a 5-to-4 vote.
The case joins a second death penalty case on the court’s docket, Madison v. Alabama, No. 17-7505, which will consider whether Alabama may execute an inmate who has dementia and cannot remember the crime that sent him to death row. Both cases will be argued in the fall.
In 2013, Chief Justice John G. Roberts Jr. expressed concerns about judges who use class-action settlements to dole out money to charities rather than to compensate the members of the class. He appeared to invite a challenge to the practice.
It took five years, but on Monday the Supreme Court agreed to hear a case on the practice, Frank v. Gaos, No. 17-961. It arose from an $8.5 million settlement between Google and class-action lawyers who said the company had violated its users’ privacy rights. Under the settlement, the lawyers were paid more than $2 million, but members of the class they represented received no money. Instead, the company agreed to make contributions to institutions concerned with privacy on the internet, including centers at Harvard and Stanford.
Theodore H. Frank and Melissa Ann Holyoak objected to the settlement, saying it provided members of the class with “no money, no alteration of the defendant’s allegedly injurious conduct, not even coupons.”
A divided three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, upheld the settlement, with all three judges agreeing that trying to pay compensation to the class would be inefficient, as the individual payouts would be about 4 cents.
In dissent, Judge J. Clifford Wallace expressed misgivings about the groups to which the payments were to be made. He said he was uneasy about the fact that a substantial portion of the money would go to law schools that the plaintiffs’ lawyers had attended.
In urging the Supreme Court not to hear the case, lawyers for Google saidthe plaintiffs’ claims were weak, “making any direct payment, however modest, a windfall rather than compensation.” Distributing money to them would be inefficient, the company said, and the institutional recipients would put it to good use.
In 2010, the Supreme Court ruled that arbitration agreements require disputes to be resolved one by one unless the parties agree to class arbitration. On Monday, the court agreed to decide whether workers at a California business could band together in an arbitration proceeding to seek compensation for what they said was their employer’s failure to protect their data.
A divided three-judge panel of the Ninth Circuit ruled that the arbitration agreement between the company and its employees allowed the workers to pursue their claims as a class. The agreement said that “arbitration shall be in lieu of any and all lawsuits or other civil legal proceedings relating to my employment.”
In an unsigned opinion, the majority said that language allowed the workers to band together. “A reasonable — and perhaps the most reasonable — interpretation of this expansive language is that it authorizes class arbitration,” the majority said.
In dissent, Judge Ferdinand F. Fernandez said the majority had engaged in a “palpable evasion” of the Supreme Court’s 2010 decision.
The Supreme Court has generally upheld arbitration agreements that bar class actions, whether in court or in arbitration.