Northern District of Illinois – Page 2

Salaita Academic Freedom Case Partially Survives Motion to Dismiss

August 10, 2015Leah Jurss

Memorandum Opinion and Order Here

Taking the facts in the Complaint as true, Defendants actions were far from routine — they were unprecedented. At a minimum, the University’s conduct here was not routine in relation to the other professors who were all appointed summarily and without individual consideration. The Complaint alleges that never before has the Board or University singled out a professor for similar treatment in response to extramural speech on a matter of public concern. The only difference between Dr. Salaita and the other 120 professors who were treated differently appears to be Dr. Salaita’s tweets. This increases the plausibility of Dr. Salaita’s conspiracy claim generally and his specific claim that he was being punished for his speech.

Native American Arts, Inc. Sues Walmart over Dreamcatchers, Alleging Violation of Indian Arts and Crafts Act

May 7, 2015Matthew L.M. Fletcher1 Comment

Here is the complaint in Native American Arts Inc. v. Walmart Inc. (N.D. Ill.):

1 Complaint

Federal Court Orders Arbitration in Western Sky/CashCall Payday Lending Dispute

March 30, 2015Matthew L.M. Fletcher1 Comment

Here are the materials in Kemph v. Reddam (N.D. Ill.):

51 CashCall Motion to Dismiss-Compel Arbitration

58-1 Plaintiffs’ Response

91 DCT Order

An excerpt:

Plaintiffs’ argument that the loan agreements are unconscionable because JAMS and AAA would never agree to preside over the arbitration is speculative and unconvincing. (See Resp. at 2—3, 13—14; Sur-Reply at 1—3.) Although the arbitration agreements provide that “the arbitrator will apply the laws of the Cheyenne River Sioux Tribal Nation,” (Agreement at 5), the arbitrator, once chosen, would have the authority to determine whether that choice-of-law provision is valid. See Nitro-Lift Technologies, L.L.C. v. Howard, 133 S. Ct. 500, 503 (2012) (holding that once the court determines the validity of the arbitration provision, the remainder of the contract is left for the arbitrator to decide); Vimar Seguros Y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528, 541, 115 S. Ct. 2322, 2330 (1995)(ruling that the arbitrator should decide choice-of-law in the first instance); CNA Reinsurance Co. v. Trustmark Ins. Co., No. 01 C 1652, 2001 WL 648948, at *6 (N.D. Ill. June 5, 2001); see also Prostyakov v. Masco Corp., 513 F.3d 716, 725 (7th Cir. 2008)(upholding the arbitrator’s interpretation of the choice-of-law clause because it was not the court’s “place to determine whether [the arbitrator’s] interpretation was correct as a matter of law”). This is particularly true because, as discussed, the loan agreements explicitly provide that the arbitrator can decide “any issue concerning the validity, enforceability, or scope of . . . the Arbitration agreement,” which includes [18] the enforceability of the choice-of-law clause. (Agreement at 4.) Therefore, potential arbitrators need not refuse the dispute in order to comply with internal due process standards. Nor would they be required to violate Illinois public policy by applying tribal law if they chose to accept it. They could instead accept the dispute, find the choice-of-law provision is unenforceable, and determine what default law should apply.

Suit against Western Sky/Butch Webb to Proceed

January 7, 2015Matthew L.M. Fletcher

Here are the materials in Scherr v. Western Sky Financial (N.D. Ill.):

40-1 Western Sky Motion to Dismiss

47 Response

48 Western Sky Reply

51 DCT Order

Class Certification Denied in Challenge to Credit Reporting to Tribal Payday Lenders (among others)

December 3, 2014Matthew L.M. Fletcher

Here are the materials in Aleksic v. Clarity Services (N.D. Ill.):

50 Motion for Class Certification

74 DCT Order on Motions to Dismiss

91 DCT Order on Amended Motions to Dismiss

114 Amended Motion for Class Certification

118 Clarity Response to 114

121 Reply in Support of 114

123 DCT Order Motion for Class Certification

An excerpt:

Moreover, even if the definition were narrowed, the class would still not be eligible for certification. To be certified, a class must satisfy all of the criteria of Federal Rule of Civil Procedure (“Rule”) 23(a), i.e., numerosity, commonality, typicality, and adequacy, and one of the criteria of Rule 23(b), here, “that the questions of law or fact common to class members predominate over any [individual] questions . . . , and . . . a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” See Fed. R. Civ. P. 23(a)(1)-(4), (b)(3). Assuming, arguendo, that the Rule 23(a) factors are met, plaintiff cannot satisfy Rule 23(b)(3) because individual issues predominate, including whether: (1) Clarity gave out any class member’s report “[i]n accordance with [his/her] written instructions,” as the FCRA permits, see 15 U.S.C. § 1681b(a)(2); (2) any or all of the lenders is a tribal entity, and thus, immune from state regulation, see Puyallup Tribe, Inc. v. Dep’t of Game of State of Wash. 433 U.S. 165, 172 (1977) (“Absent an effective waiver or consent, it is settled that a state court may not exercise jurisdiction over a recognized Indian tribe.”); see also Kiowa Tribe of Okla. Mfg. Tech., Inc., 523 U.S. 751, 756 (1998) (stating that “tribal immunity is a matter of federal law and is not subject to diminution by the States”); Cook v. AVI Casino Enters., Inc. 548 F.3d 718, 725 (9th Cir. 2008) (“[T]ribal corporations acting as an arm of the tribe enjoy the same sovereign immunity granted to a tribe itself.”); (3) Clarity was aware of any lender’s status as a tribal entity; and (4) the amount of damages, if any, suffered by each class member. Because these individual issues would dwarf any issues common to even the hypothetically-narrowed class, this is not an appropriate case for class certification.

And:

Contrary to plaintiff’s assertion, these principles survived Michigan v. Bay Mills Indian Cmty.,134 S. Ct. 2024 (2014) and Jackson v. Payday Financial, LLC, 764 F.3d 765 (7th Cir. 2014). Bay Mills held that individual Indian tribe members, but not “the Tribe itself,” can be sued for violations of state law committed “beyond reservation boundaries.” 134 S. Ct. at 2034-35. Jackson held that a tribal court did not have subject matter jurisdiction over state law claims asserted against a tribe member arising from conduct committed off reservation land. 764 F.3d at 772-82.

En Banc Petition in Jackson v. Payday Financial LLC

September 15, 2014March 22, 2019Matthew L.M. Fletcher

Here:

En banc Petition

Clarkson Amicus Brief

Panel materials here.

Seventh Circuit Rules against Western Sky in Jackson v. Payday Financial LLC — A Warning to Indian Country

August 24, 2014March 22, 2019Matthew L.M. Fletcher5 Comments

Here is the opinion:

CA7 Opinion

Based on these findings, we now conclude that the Plaintiffs’ action should not have been dismissed because the arbitral mechanism specified in the agreement is illusory. We also cannot accept the Loan Entities’ alternative argument for upholding the district court’s dismissal: that the loan documents require that any litigation be conducted by a tribal court on the Cheyenne River Sioux Tribe Reservation. As the Supreme Court has explained, most recently in Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316 (2008), tribal courts have a unique, limited jurisdiction that does not extend generally to the regulation of nontribal members whose actions do not implicate the sovereignty of the tribe or the regulation of tribal lands. The Loan Entities have not established a colorable claim of tribal jurisdiction, and, therefore, exhaustion in tribal courts is not required. Accordingly, we cannot uphold the district court’s dismissal on this alternative basis.

Primary briefs here. Supplemental briefs here.

As should be expected by this time, payday lending in Indian country is creating bad law for tribal interests. This case involved a privately owned payday lending operation. Tribally-owned operations will be scrambling to distinguish themselves from this case. Particularly troublesome is the holding and (hopefully) dicta from the opinion that suggests tribal courts have no jurisdiction involving off-reservation lending operations, even though the operation is based in Indian country and even though the lending instrument includes a forum selection clause naming a tribal forum.

My initial recommendations to tribal leaders and counsel — shut down on-reservation-based payday lending operations operated privately immediately. My second recommendation is to ensure that tribal regulations of tribally owned payday lending operations are independent and robust. In other words, tribes must be able to withstand the kind of searching inquiry into their regulatory scheme that the federal court did in this case. Can tribal sovereign lenders say that?

Federal Court Affirms Arbitration Provision in Tribal Payday Lending But Won’t Order Arbitration Outside of Federal District

August 21, 2014Matthew L.M. Fletcher

Here are the materials in Achey v. BMO Harris Bank (N.D. Ill.):

15 Bank Motion to Transfer Case

29 Bank Motion to Compel Arbitration

33 Bank Motion to Dismiss

39 Response to Motion to Transfer

40 Response to Motion to Compel Arbitration

41 Response to Motion to Dismiss

60 DCT Order

Fake Indian Alert: Jabari El v. Redmon’s Towing

June 10, 2014Matthew L.M. Fletcher

Here is the opinion dismissing a motion for writ of replevin Jabari El v. Redmon’s Towing (N.D. Ill.):

Jabari El v Redmon’s Towing

An excerpt:

As the basis for the requested writ, Plaintiff first claims that the seizure of his vehicle violated the 1776 Treaty of Watertown. However, Plaintiff does not allege that he is a member of either of the two Native American nations that were parties to the Treaty of Watertown, and thus he fails to state a claim for violation of its terms. U.S. v. $7,000.00 in U.S. Currency, 583 F.Supp.2d 725, 732 (M.D.N.C.2008) (noting that the Treaty of Watertown does not appear to apply to members of any Native American nations other than the St. John’s and Mi’kmaq tribes of Nova Scotia, Canada; nor does it apply to citizens of the United States); see also Trazell v. Wilmers, No. 12–01369, 2013 WL 5593042, at *3 (D.D.C. Oct. 11, 2013) (plaintiff failed to state a claim for violation of the Treaty of Watertown where plaintiff alleged he was a member of the Cherokee–Chocktaw nation but did not allege he was a member of either the St. John’s nation or the Mi’kmaq nation).