A look at Biden’s judicial nominations

Also: COVID business-interruption claims take a hit at Ninth Circuit

Linda A. Lipsen
2021 November

Washington Update

President Biden continues to nominate judicial nominees at a record pace and with an eye toward both demographic and professional diversity.

The eighth round of nominees was announced at the end of September to bring the total number of named federal judicial nominees to 53; so far, 16 judges have been confirmed, including five circuit court judges. In comparison, the Trump administration had confirmed seven judges at this stage in the first term.

Overall, Biden’s nominees are incredibly diverse (both demographically and professionally):

72 percent are women;

almost 30 percent are Black;

23 percent are Asian;

21 percent are Hispanic;

about a third are public defenders;

and a quarter are civil rights attorneys.

Included among the nominees are numerous plaintiffs’ lawyers, including Margaret Strickland who was confirmed by the Senate in September to the United States District Court for the District of New Mexico, Charlotte Sweeney (nominated for the United States District Court for the District of Colorado), Justice Beth Robinson from Vermont (nominated for the United States Court of Appeals for the Second Circuit), Judges Jane Beckering (nominated for the United States District Court for the Western District of Michigan), and Shalina Kumar (nominated for the United States District Court for the Eastern District of Michigan).

AAJ strongly supports these nominees and will continue to work hard to ensure the federal bench is a place where your clients have a fair shot at justice.

Georgia Supreme Court upholds jurisdiction

On September 21, in Cooper Tire & Rubber Co. v. McCall, the Georgia Supreme Court upheld jurisdiction over the defendant based on its registration to do business in Georgia, which Georgia deems to be consent to the general jurisdiction of Georgia courts. In making its decision, the court reviewed the history of the Supreme Court’s personal jurisdictions, noting that the Court has never overturned case law that explicitly upholds consent jurisdiction based on registration to do business.

AAJ congratulates member Cale Conley of Conley Griggs Partin, LLP, who was one of the attorneys representing Plaintiff. AAJ signed on to an amicus brief with the Georgia Trial Lawyers Association authored by AAJ/GTLA member Joseph Colwell of Butler Wooten & Peak LLP. This, and other AAJ amicus briefs, can be found at https://www.justice.org/amicusbriefs.

Adverse decision in COVID business interruption coverage case

On October 1, the Ninth Circuit issued an adverse decision in Mudpie v. Travelers Cas. Ins. Co. (9th 20-16858), a case seeking declaratory relief, insurance coverage owed under defendant Traveler’s insurance policy, and damages for Traveler’s denial of business interruption insurance claims due to government-mandated business closures due to COVID-19. At dispute was whether Plaintiff adequately alleged a ‘direct physical loss of or damage’ to property under the Traveler’s insurance policy. The Ninth Circuit affirmed the lower court’s order dismissing Mudpie’s claims against Travelers, holding that the phrase “physical loss of or damage to” requires the insured to allege physical alteration of the property – rejecting Plaintiff’s argument that the phrase is synonymous with “loss of use.”

AAJ filed an amicus brief urging the Ninth Circuit to certify to the California Supreme Court plaintiff’s proposed question of whether governmental orders restricting operations of non-essential businesses can result in “direct physical loss” of property covered by business interruption insurance. The Ninth Circuit denied certification in a footnote, expressing its belief that “California courts have interpreted coverage provisions similar to the Policy’s ‘direct physical loss of or damage to property’ term.”

AAJ member Andre Mura of Gibbs Law Group is one of the attorneys representing Plaintiff. A similar case and request for certification of a proposed question remain pending before the Ninth Circuit (Marks Engine Co. v. Travelers Indem. Co. of Am.).

Comment period now open on FRE 702 – Expert witnesses

The Evidence Rules Committee is currently in a formal comment period (https://www.uscourts.gov/rules-policies/proposed-amendments-published-public-comment) on proposed amendments to FRE 702 related to expert witnesses. The proposed changes, strongly supported by the defense bar, would add a preponderance of the evidence standard to the rule and modify subsection (d) of the rule to limit “overstatements” by expert witnesses. AAJ will recommend substantial changes to the FRE 702 Committee Note that accompanies the proposed rule.

AAJ urges members to review the Committee Note and consider potential language that may be used by the courts to undermine the role of jurors in evaluating evidence, cause potential confusion over the expert’s use of studies, and make it more difficult for the trier of fact to evaluate the weight of the evidence.

These changes would disproportionately and negatively affect plaintiffs. To help protect the role of the jury as it relates to expert witnesses, it is important for the plaintiff bar to participate in the formal comment period, which started in August 2021 and will run until February 16, 2022. There will be one virtual public hearing held on January 21, 2022. Requests to testify must be sent at least 30 days in advance. AAJ encourages you to review the proposed changes and submit a short comment about the effect of the amendments on your practice.

Additional federal public comment on emergency rulemaking

There is also currently a public formal comment period (https://www.uscourts.gov/rules-policies/proposed-amendments-published- public-comment) on whether the Federal Rules of Civil Procedure should be amended to add a new proposed emergency rule, FRCP 87, which focuses on service of process and appeals. Congress directed the rules committees to determine whether emergency rules are necessary to deal with emergencies such as the pandemic, as well as other emergencies such as the shutting down of a court or courts. This public comment period began in August 2021 and will run until February 16, 2022. There will be two virtual public hearings held on January 6, 2022, and February 4, 2022. Requests to testify must be sent at least 30 days in advance.

If you have questions about submitting a comment, testifying at a public hearing, or other questions pertaining to federal rules, please contact Sue Steinman at This email address is being protected from spambots. You need JavaScript enabled to view it. or Amy Brogioli at This email address is being protected from spambots. You need JavaScript enabled to view it..

Linda A. Lipsen Linda A. Lipsen

Ms. Lipsen was named Chief Executive Officer of the American Association for Justice (AAJ), formerly known as the Association of Trial Lawyers of America (ATLA), in April 2010. She joined the organization in 1993 to direct AAJ’s Public Affairs department.

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