Civil Procedure & Federal Courts Blog

Ninth Circuit Allows Cameras in District Courts

The Ninth Circuit Judicial Council has approved the use of cameras in district courts in some civil non-jury trials. The new policy replaces the policy in place in the Ninth Circuit since 1996 banning photography and radio and television coverage in the district courts.

The press release is here.

~clf

Hot Off The Presses: Recent Articles Of Interest

With a hat tip to the Current Index of Legal Periodicals, here are some recent articles that may be of interest:

Bryan H. Babb & Kellie M. Barr, Developments in Indiana Appellate Procedure: Rule Amendments, Notable Case Law, and Tips for Appellate Practitioners, 42 Ind. L. Rev. 813 (2009)

Vanessa Baird & Tonja Jacobi, How the Dissent Becomes the Majority: Using Federalism to Transform Coalitions in the U.S. Supreme Court, 59 Duke L.J. 183 (2009)

Daniel K. Burke, Recent Developments in Indiana Civil Procedure, 42 Ind. L. Rev. 879 (2009)

William W. Buzbee, Preemption Hard Look Review, Regulatory Interaction, and the Quest for Stewardship and Intergenerational Equity, 77 Geo. Wash. L. Rev. 1521 (2009)

Robert M. Chesney, National Security Fact Deference, 95 Va. L. Rev. 1361 (2009)

Daniel B. Garrie & Yoav M. Griver, Mobile Messaging and Electronic Discovery, 8 Loy. L. & Tech. Ann. 95 (2008-2009)

Angela M. Laughlin, This Ain't the Texas Two Step Folks: Disharmony, Confusion, and the Unfair Nature of Personal Jurisdiction Analysis in the Fifth Circuit, 37 Cap. U. L. Rev. 681 (2009)

Bradford Mank, Standing and Statistical Persons: A Risk-Based Approach to Standing, 36 Ecology L.Q. 665 (2009)

Christopher Meisenkothen, When Three's a Crowd: Kyrtatas, Malerba, and the Connecticut Product Liability Act. The Confusing Interplay of Cross-Claims, Third-Party Impleader, Contribution, and Indemnification in Product Liability Claims, 27 Quinnipiac Law Review 881 (2009)

Daniel A. Richards, Note, An Analysis of the Judicial Panel on Multidistrict Litigation's Selection of Transferee District and Judge, 78 Fordham L. Rev. 311 (2009)

The Philip D. Reed Lecture Series, Sanctions in Electronic Discovery Cases: Views From the Judges, 78 Fordham L. Rev. 1 (2009) (Daniel J. Capra, moderator; Hon. John M. Facciola, Hon. Elizabeth D. Laporte, Hon. Loretta A. Preska and Hon. Shira A. Scheindlin, panelists).

--A

Need CLE? . . . there's an app for that

West unveiled its new iPhone app this week to enable lawyers to get continuing legal education (CLE) credits by taking courses on an iPhone or iPod Touch.  The app itself is free through Apple iTunes App Store.  The user must then set up an account with West LegalEdCenter; this account will enable the user to buy and download courses from a library of over 2000 online courses.  Once a course is completed, the user can submit the course completion information to obtain state CLE credit.

For more information, see this article in the Minneapolis / St. Paul Business Journal.

~clf

Qui tam suits in action

The University of Phoenix recently settled a False Claim Act qui tam action in California federal court.
The lawsuit alleged that the the University of Phoenix had defrauded the government by paying enrollment counselors for enrolling students, a practice prohibited for educational institutions that receive federal funds for student aid.

The case settled for $67.5 million to be paid to the government and $11 in attorneys fees.  This is a big payday for plaintiffs lawyers pursuing qui tam actions.  But it is a risky strategy -- this case is notable because it is unusual for plaintiffs to win these cases where the government chooses not to intervene.

Additional reporting available here at MSN and here at The Recorder.

RJE

Vladeck on habeas jurisdiction for Guantanamo detainees

Over at Prawfsblog, Steve Vladeck has a good post on the jurisdictional issues raised by moving many of the Guantanamo detainees to the Thomson facility in Illinois.

From the post:
"Does this mean that all of the habeas petitions in these cases currently pending before the D.C. district court will have to be be transferred to the U.S. District Court for the Northern District of Illinois (and then, presumably, the Seventh Circuit)? [See 28 U.S.C. 93(a)(2) -- Thomson is in Carroll County.] If so, that's an awful lot of heavy lifting and wasted effort, given how much time and energy the D.D.C. judges have devoted to these cases in the past eighteen months.

The answer, I think, is no, even in light of the Supreme Court's 2004 decision in Rumsfeld v. Padilla.  There, the Court held that a habeas petitioner must name his "immediate custodian" as the respondent, and that the district court must have personal jurisdiction over _that_ official in order to have jurisdiction over the petition. [The rule doesn't apply in cases in which no district court has personal jurisdiction over the immediate custodian, which is how the Guantanamo cases ended up in D.D.C. in the first place.]"

RJE

New York Times article features hormone replacement therapy litigation

The New York Times article, Menopause, as Brought to You By Big Pharma features a history of regulatory and litigation issues surrounding the prescription of hormone replacement therapy drugs. The litigation centers on the Prempro cases against Wyeth (now part of Pfizer).

RJE

Issacharoff on Pragmatic Originalism

Professor Samuel Issacharoff (New York University School of Law) has posted "Pragmatic Originalism?" on SSRN.  It will be published in the NYU Journal of Law & Liberty.

The abstract states:

As the influence of and debates over originalist constitutional arguments has spread, so has some uncertainty of the exact sources of originalist authority. The maturation of the debates has exposed some dissensus over the intent of the Framers or Ratifiers, the plain meaning, the conventional contemporary understanding, and the actions of the founding generation. 

This essay, part of a symposium on the jurisprudence of Justice Thomas, takes no position on the contending sources of originalist authority. Rather it uses the appearance of distinct original sources, as set out in the contribution to this symposium of Professor Gregory Maggs, to examine the potential impact on the force of originalist claims when subsequent judicial applications have to choose among rival potential sources of original intent, particularly when the distrinct strains of originalism might point toward different outcomes. 

The presence of multiple originalist sources might be an embarrassment were originalism to be defended as a narrow interpretive device that relieves courts of the need to make contested interpretations of constitutional authority. Were the turn to originalism defended on pragmatic or instrumental grounds as a limiting strategy for judicial review, as this Essay proposes, the anxiety over multiple authorities would be lessened if not eliminated. Although originalism is not often defended on pragmatic grounds, this Essay suggests that this may be its strongest claim.

~clf

Effron on Pleading Complex Litigation after Twombly and Iqbal

I suppose that one of the privileges of being a blog editor is that I can announce my own work as soon as it has been posted to SSRN.  In that spirit, I have posted The Plaintiff Neutrality Principle: Pleading Complex Litigation in the Era of Twombly and Iqbal to SSRN.

Abstract:     
Two recent Supreme Court cases have stirred the world of pleading civil litigation. Bell Atlantic v. Twombly introduced the concept “plausibility pleading” in which the plaintiff is required to plead facts sufficient to suggest that the claim for relief is “plausible,” and Ashcroft v. Iqbal affirmed that the plausibility standard applies to all aspects of a complaint subject to Rule 8(a) of the Federal Rules of Civil Procedure. This Article examines the consequences of the plausibility standard for pleadings in complex litigation cases.

Twombly and Iqbal have opened the door to the use of cost/benefit analysis in pleading. Given this possibility, the Article argues that it is unacceptable to automatically equate the existence of a class action with a high cost of litigation because this fails to differentiate among types of class actions, and to differentiate class actions from other potentially costly types of litigation, and because it fails to account for the efficiencies and judicial economy that some class actions are, themselves, supposed to create.

The Article then addresses the application of the Twombly/Iqbal standard to allegations of plaintiff conduct. Complex litigation pleadings, like pleadings in ordinary lawsuits, contain allegations of conduct and condition that plaintiffs make about themselves as well as those made about defendants or third parties. A more robust understanding of the plausibility standard emerges through this division of allegations about plaintiffs and allegations about defendants. Allegations of plaintiff conduct in a complex litigation complaint sometimes contain speculation about the conduct or condition of other plaintiffs as well as the conduct of defendants. This peculiarity of complex litigation pleading creates an additional arena of allegations from which one might attack the factual sufficiency of a complaint.

The Article introduces a key component of pleading, the plaintiff neutrality principle, which states that when a plaintiff makes neutral allegation concerning her own condition or conduct, that is, subject to inferences of both lawful and unlawful conduct on the part of the defendant, it is not speculative and therefore entitled to a presumption of truth for the purposes of deciding a Rule 12(b)(6) motion to dismiss. In the complex litigation context, the group plaintiff neutrality principle addresses how inferences drawn from “neutral” behavior should apply to allegations of class members’ conduct.

The Article concludes by analyzing situations in which the baseline for plaintiff conduct differs because of publicly available data about the condition of a group of plaintiffs, particularly those that are consolidated through multidistrict litigation, rather than as class actions. It concludes that application of the Twombly/Iqbal principle to this context may not be as harmful as application to allegations about defendant conduct because of the plaintiff’s ability to access the relevant information and, if necessary, replead the case.