Friday, April 23, 2010

Iqbal and the SEC's Case Against Goldman Sachs

As covered earlier here, an SEC civil action against defendants who were allegedly involved in the Bernie Madoff ponzi scheme was recently dismissed for failing to satisfy federal pleading standards. (See SEC v. Cohmad Securities Corp., No. 09-CV-5680, 2010 WL 363844, 2010 U.S. Dist. LEXIS 8597.)

Over at The Conglomerate, Prof. Christine Hurt (Illinois) asks whether this week's SEC action against Goldman Sachs might meet a similar fate. Noting the Cohmad court's reliance on Iqbal, she writes:

"[W]e always thought the SEC had it easier than private plaintiffs because it could bring actions against aiders and abetters and didn't have to deal with pleading requirements of the PSLRA. I guess Iqbal somehow levels that playing field, although possibly not in the right direction.

"The Cohmad case seemed to be the easiest case to bring, and maybe it would have been for the DOJ, who operates under different and sometimes easier rules for securities cases than civil rules. Judge Stanton did dismiss without prejudice with leave to replead for 30 days, but that deadline passed over a month ago.

"So, will the Goldman complaint survive the inevitable Motion to Dismiss?"

We'll find out soon enough. No doubt the attorneys for Goldman Sachs and Fabrice Tourre are preparing their 12(b)(6) motions as we speak.


April 23, 2010 in Current Affairs, Recent Decisions, Twombly/Iqbal | Permalink | Comments (0)

Thursday, April 22, 2010

SCOTUS Oral Argument in Krupski v. Costa Crociere

We covered earlier the cert. grant in Krupski v. Costa Crociere, S.p.A., No. 09-337, a case involving the relation-back provision of FRCP 15(c)(1). The transcript from yesterday's much-anticipated oral argument is available here.

A central issue in the case is Rule 15(c)(1)(C)'s requirement of a "mistake concerning the proper party's identity." On what qualifies as a "mistake," the argument includes this priceless exchange involving Justice Breyer and Justice Scalia:

JUSTICE BREYER: Have you ever driven a car where your wife has said turn left and you have turned right?


JUSTICE BREYER: Has that ever happened to you?


. . .

JUSTICE BREYER: . . . Did you do it by mistake? Yes, of course, you did. It's happened to every human being. There are millions of instances in which people do things by mistake where, in fact -

JUSTICE SCALIA: I think your wife made a mistake. I don't think you made a mistake.


JUSTICE BREYER: No, my wife does not make mistakes.


For additional coverage of the Krupski argument, see Blog of the Legal Times (Justice Breyer: My Wife is Infallible) and PrawfsBlawg (Justices struggle with civil procedure). 


April 22, 2010 in Federal Rules of Civil Procedure, Supreme Court Cases | Permalink | Comments (0)

Toyota Litigation: Initial Counsel Assignments Made and Conference Set

The BNA reports that Judge Selna of the C.D. California has set an initial conference for May 13 for the cases currently consolidated as In re Toyota Motor Corp. Unintended Acceleration Marketing, Sales Practices, and Products Liability Litigation.  The court also made an interim assignment of lead counsel., choosing Steve W. Berman of Hagens Berman Sobol Shapiro in Seattle; Elizabeth J. Cabraser of Lieff Cabraser Heimann & Bernstein in San Francisco; and Marc M. Seltzer of Susman Godfey in Los Angeles for the plaintiffs.  Alston & Byrd of Atlanta represent Toyota.


April 22, 2010 in Class Actions, Current Affairs, Mass Torts, MDLs | Permalink | Comments (0)

Robertson on Transnational Litigation and Institutional Choice

Professor Cassandra Burke Robertson (Case Western Reserve University School of Law) has posted "Transnational Litigation and Institutional Choice" on SSRN.  It will be published in the Boston College Law Review.

The abstract states:

When U.S. corporations cause harm abroad, should foreign plaintiffs be allowed to sue in the United States? Federal courts are increasingly saying no. The courts have expanded the doctrines of forum non conveniens and prudential standing to dismiss a growing number of transnational cases. This restriction of court access has sparked considerable tension in international relations, as a number of other nations view such dismissals as an attempt to insulate U.S. corporations from liability. A growing number of countries have responded by enacting retaliatory legislation that may ultimately harm U.S. interests. This article argues that the judiciary’s restriction of access to federal courts ignores important foreign relations, trade, and regulatory considerations. The article applies institutional choice theory to recommend a process by which the three branches of government can work together to establish a more coherent court-access policy for transnational cases.


April 22, 2010 in Federal Courts, Recent Scholarship | Permalink | Comments (0)

Wednesday, April 21, 2010

Pettigrew and Stras on Fourth Circuit Caseload

Shaun Pettigrew and David Stras (University of Minnesota Law School) have posted The Rising Caseload in the Fourth Circuit: A Statistical and Institutional Analysis to SSRN.

This symposium essay explores the transformation of the federal appellate courts through the lens of the United States Court of Appeals for the Fourth Circuit. Nationwide, circuit courts have experienced rapidly expanding dockets, which by necessity has led to a transformation in the way these courts conduct their business. For instance, the average active circuit judge in the Fourth Circuit now hears more than twice as many appeals as in 1979.

These crushing caseloads have led to a variety of reform measures, only some of which are transparent. For instance, the percentage of cases terminated on the merits following oral argument has plummeted from 95 percent of cases in the Fourth Circuit in 1979 to a modern low of just 12 percent in 2006. Similarly, the percentage of cases decided through published opinions has decreased by more than 50% since 1989. In addition to procedural reforms, the Fourth Circuit has dramatically increased the number of staff attorneys to handle routine cases that are decided without oral argument. These reforms, plus others, are critically examined in this Essay.


April 21, 2010 in Federal Courts, Recent Scholarship | Permalink | Comments (0)

Borchers on Punitive Damages, Forum Shopping, and Conflict of Laws

Professor Patrick Joseph Borchers (Creighton University School of Law) has posted "Punitive Damages, Forum Shopping, and Conflict of Laws" on SSRN. It will be published in the Louisiana Law Review.

The abstract states:

Few issues have as profound an impact on civil litigation as the availability and dimensions of punitive damages. States, however, vary considerably on whether punitive damages are allowed, the quantum and burden of proof necessary to establish liability for them, their insurability and the standard of appellate review of their award. Because of the high stakes involved, all three of the traditional branches of the discipline of the conflict of laws -- jurisdiction, choice of law and judgment recognition -- are directly involved. Civil plaintiffs naturally seek to find courts that will be hospitable to their attempted assertion of punitive damage liability and civil defendants are equally anxious to avoid such courts. The practice of attempting to find a friendly court is known colloquially as "forum shopping." This article examines how the branches of the conflict of laws are implicated in this high stakes battle and also examines what implications the Supreme Court's decision in State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003) has for conflicts issues in the punitive damage wars.


April 21, 2010 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 20, 2010

Hot Off The Presses: Recent Articles Of Interest

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

Kristen M. Blankley, Emily E. Root & John Minter, Multijurisdictional ADR Practice: Lessons from Litigators, 11 Cardozo J. Conflict Resol. 29 (2009)


Eleanor M. Fox, Modernization of Effects of Jurisdiction: From Hands-Off to Hands-Linked, 42 N.Y.U. J. Int'l L. & Pol. 159 (2009)


Sue Ann Mota, Federal Pre-emption After Medtronic, Altria Group, and Wyeth, 35 Okla. City U. L. Rev. 147 (2010)


Jennifer E. Spreng & Roberto J. Escobar, Solving "the Burklow Problem": Federal Question Jurisdiction of Tucker Act and Labor-Management Relations Act Cases After Textron Lycoming v. UAW, 55 Wayne L. Rev. 941-1005 (2009).


Peter D. Trooboff, Proposed Principles for United States Implementation of the New Hague Convention on Choice of Court Agreements, 42 N.Y.U. J. Int'l L. & Pol. 237-251 (2009)


Richard C. Worf, Jr,, The Effect of State Law on the Judge-Jury Relationship in Federal Court, 30 N. Ill. U. L. Rev. 109 (2009)


Symposium. Caperton v. A.T. Massey Coal Co. Foreword by Dahlia Lithwick; articles by Steven Lubet, Bruce A. Green, Elizabeth B. Wydra, Ronald D. Rotunda, Andrew L. Frey, Jeffrey A. Berger, James Sample, James Bopp, Jr. and Anita Y. Woudenberg; response by Roy A. Schotland, 60 Syracuse L. Rev. 215-346 (2010)


Anthony Francis Bruno, Note, Preserving Attorney-Client Privilege in the Age of Electronic Discovery, 54 N.Y.L. Sch. L. Rev. 541 (2009/10)


Jeremy D. Kerman, Note, Righting the Notice Pleading Ship: How Erickson v. Pardus Solidifies the Modern Supreme Court Trend of Notice-Giving in Light of Bell Atlantic Corporation v. Twombly, 84 Chi.-Kent. L. Rev. 691-710 (2009)


Gary W. Thompson, Note, Grappling with Grable in Singh v. Duane Morris, LLP: A Practical Guide for Practitioners Who Litigate State Causes of Action with Embedded Federal Issues in the Fifth Circuit, 29 Miss. C.L. Rev. 281-312 (2010).




April 20, 2010 in Recent Scholarship | Permalink | Comments (0)

Monday, April 19, 2010

Not Done Yet: More Words From The Supreme Court On Shady Grove

Today the Supreme Court issued a "GVR" order (grant/vacate/remand) in Holster v. Gatco, Inc. (No. 08-1307), a case out of the Second Circuit. The Court remanded for further reconsideration in light of last month's decision in Shady Grove v. Allstate (covered here). Both Holster and Shady Grove involve the relevance in federal court of New York's § 901(b), which prohibits the award of certain statutory-damages remedies in class actions.

Today's GVR order prompted a dissent from Justice Ginsburg that was joined by Justice Breyer (two of the four Shady Grove dissenters). This in turn prompted a concurring opinion in support of the GVR order from Justice Scalia, who authored the Shady Grove majority opinion. The GVR order and opinions can be found at the end of today's Supreme Court order list.

The debate between Scalia and Ginsburg in Holster concerns Shady Grove's impact on claims arising under the Telephone Consumer Protection Act (TCPA), which authorizes a party to seek damages "if otherwise permitted by the laws or rules of court of a State." 47 U.S.C. § 227(b)(3). Ginsburg argues that no remand is necessary because the TCPA's explicit reference to state law "stands on its own footing as an adequate and independent ground for dismissing Holster's suit." She would therefore "spare the Court of Appeals the necessity of revisiting — and, presumably, reinstating — its TCPA-grounded ruling."

Scalia's concurrence calls Ginsburg's reading of the TCPA "highly implausible":

"Besides effecting an implied partial repeal of the Rules Enabling Act, 28 U.S.C. § 2072, it would require federal courts to enforce any prerequisite to suit state law makes mandatory — a state rule limiting the length of the complaint, for example, or specifying the color and size of the paper. A more probable reading . . . is that when a State closes its doors to claims under the Act § 227(b)(3) requires federal courts in the State to do so as well; but when such claims are allowed, the federal forum may apply its own procedures in processing them."

Stay tuned.


April 19, 2010 in Class Actions, Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Update on Qualcomm v. Broadcom E-Discovery Sanctions

Two years ago, many litigators took note after attorneys for Qualcomm Inc. were sanctioned for what the judge called a “monumental” discovery violation. (See earlier coverage on Electronic Discovery Law blog and Findlaw.)

This month, that same judge ordered that the sanctions against those attorneys be lifted. The court wrote that while “[t]here is still no doubt in this Court’s mind that this massive discovery failure resulted from significant mistakes, oversights, and miscommunication on the part of both outside counsel and Qualcomm employees, . . . the Responding Attorneys made significant efforts to comply with their discovery obligations.”

More coverage is available at the ABA Journal, Above The Law, and


April 19, 2010 in Discovery, Recent Decisions | Permalink | Comments (0)

Stras and Spriggs Examine Plurality Decisions

Professor David R. Stras (University of Minnesota Law School) and Professor James F. Spriggs II (Washington University, St. Louis, Department of Political Science) posted "Examining Plurality Decisions" on SSRN. It will be published in the Georgetown Law Journal. 

The abstract states:

Many of the Supreme Court’s most important decisions, such as those involving executive power and the constitutionality of abortion regulations, are decided by plurality decision. Plurality opinions result when five or more Justices agree on the result in a particular case but no single rationale or opinion garners five votes. Many Justices, including William Rehnquist and Ruth Bader Ginsburg, have addressed the problems created by plurality opinions, such as interpretive difficulties in determining the Court’s holding, but few scholars have addressed plurality decisions other than in passing.

In the first empirical analysis examining the occurrence of plurality decisions, the authors examine a variety of ideological, collegial, contextual, and legal factors to determine which factors are most likely to lead to plurality decisions. Drawing on data for every Supreme Court case decided between the 1953 and 2006 Terms of the Supreme Court, the results of the study are illuminating. For example, a case is more likely to result in a plurality decision if it involves an issue of constitutional interpretation with respect to a civil liberties issue and lower court conflict did not influence the decision to grant certiorari.

In addition, the authors estimate an individual Justice model that measures which factors are most likely to lead to votes by Justices to concur in the judgment, which is the key ingredient for a plurality opinion. A Justice’s distance from the majority (or plurality) opinion author and prior lack of cooperation with the opinion author, both play a large role in whether a Justice joins the majority and separately concurs or votes to concur in the judgment. Many of the same factors found influential in the case level model are also found to influence Justices’ decisions to concur in the judgment. Given the importance of plurality decisions to understanding the Supreme Court, this Article provides the basis for further normative evaluations of whether plurality decisions harm the development of the law and how such decisions should be interpreted by lower courts.


April 19, 2010 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, April 18, 2010

Grove on the Structural Safeguards of Federal Jurisdiction

Tara Leigh Grove (Florida State University -- College of Law) has posted The Structural Safeguards of Federal Jurisdiction to SSRN.

Scholars have long debated Congress’s power to curb federal jurisdiction and have consistently assumed that the constitutional limits on Congress’s authority (if any) must be judicially enforceable and found in the text and structure of Article III. In this Article, I challenge that fundamental assumption. I argue that the primary constitutional protection for the federal judiciary lies instead in the bicameralism and presentment requirements of Article I. These Article I lawmaking procedures give competing political factions (even political minorities) considerable power to “veto” legislation. Drawing on recent social science and legal scholarship, I argue that political factions are particularly likely to use their structural veto to block jurisdiction-stripping legislation favored by their opponents. Notably, this structural argument is supported by the history of congressional control over federal jurisdiction. When the federal courts have issued controversial opinions that trigger wide public condemnation, supporters of the judiciary - even when they were only a political minority in Congress - repeatedly used their structural veto to block jurisdiction-stripping proposals. This structural approach also provides one answer to a puzzle that has particularly troubled scholars: whether there are any constitutional limits on Congress’s authority to make “exceptions” to the Supreme Court’s appellate jurisdiction. The structural safeguards of Article I have proven especially effective at preventing encroachments on the Supreme Court’s Article III appellate review power.


April 18, 2010 in Federal Courts, Recent Scholarship | Permalink | Comments (0)