Saturday, May 1, 2010
The National Law Journal reports here that a class action suit has been filed on behalf of Louisiana fishers, shrimpers, and commercial boaters who claim that their livelihood has been harmed by the oil spill in the Gulf of Mexico. The lawyer who filed the suit--Daniel Becnel, Jr., who is also involved in the Toyota litigation--says that the plaintiff class might continue to grow; he has been contacted by commercial fishers and boaters who claim that the oil spill has harmed their businesses in other states as well, including Mississippi, Alabama, Florida, and Texas.
The NLJ reports:
The lawsuit alleges that the defendants "knew of the dangers associated with deep water drilling and failed to take appropriate measures to prevent damage."
The defendants include BP, which holds the lease permitting drilling at the site of the accident, and Transocean Ltd., which owned and operated the Deepwater Horizon drilling rig.
The lawsuit also named Halliburton Energy Services Inc. and Cameron International Corp. Halliburton was engaged in "cementing operations of the well and well cap." The suit alleges that Halliburton was negligent in performing that work, increasing pressure at the well and contributing to the fire. Cameron manufactured and/or supplied the rig's blow-out preventers that should have stopped the oil spill but allegedly failed to operate when the explosion occurred.
Friday, April 30, 2010
This week the Supreme Court approved amendments to Federal Rules of Civil Procedure 8, 26, and 56, and Illustrative Form 52 and transmitted them to Congress. The amendments were approved by the Judicial Conference of the United States last fall (as covered earlier here).
Absent congressional intervention, the amendments will become effective on Dec. 1, 2010.
(Hat Tip: Brad Shannon)
Thursday, April 29, 2010
Howard Bashman at How Appealing reports this week on the Tenth Circuit's decision in Vanderwerf v. SmithKline Beecham Corp. (No. 08-3218), a case involving the defendant’s drug Paxil. After the district court granted summary judgment for the defendant, the plaintiffs filed a timely motion to reconsider under FRCP 59. That motion remained pending for seven months, at which point the plaintiffs withdrew the motion and filed a notice of appeal that same day.
Ordinarily, filing a timely Rule 59 motion tolls the 30-day deadline to file a notice appeal. See Fed. R. App. P. 4(a)(4). In a 2-1 decision, the Tenth Circuit in Vanderwerf holds that this tolling occurs only when the district court “ent[ers] an order” disposing of the post-judgment motion. The 30-day deadline is not tolled when a party voluntarily withdraws the post-judgment motion. Thus, the Vanderwerfs’ notice of appeal was untimely, having been filed seven months after final judgment was entered. The majority wrote: "Although we note that there is no suggestion that the Vanderwerfs acted in bad faith, we are hamstrung by the mandatory procedural rules," which must be "strictly construe[d]." It concluded:
"We recognize the severity of today’s holding, and empathize with the plight of parties who are effectively prohibited from filing a notice of appeal because of the inaction of a district court. But we must rely upon the unambiguous standard we have consistently applied to the timeliness requirements of Rule 4. Quite simply, the time to file an appeal in a civil case is tolled by the timely filing of a motion listed in Rule 4(a)(4)(A), and begins to run anew from the entry of the order disposing of the last such remaining motion."
The dissenting judge disagreed with the majority’s interpretation and argued that the majority’s approach is in tension with decisions from other circuits, e.g., United States v. Rodriguez, 892 F.2d 233 (2d Cir. 1989), and Brae Transportation, Inc. v. Coopers & Lybrand, 790 F.2d 1439 (1986).
The decision in Vanderwerf is available here, at 2010 WL 1673114, or at 2010 U.S. App. LEXIS 8703.
Professor David Collins (The City Law School of City University London) has posted "Public Funding of Multi-Party Litigation" on SSRN. It will be published in the Manitoba Law Journal.
The abstract states:
Wednesday, April 28, 2010
Professor Joshua P. Davis (University of San Francisco School of Law) and Eric L. Cramer (Berger & Montague) have posted "Antitrust, Class Certification, and the Politics of Procedure" on SSRN. It will be published in the George Mason Law Review.
The abstract states:
Anna Gines i Fabrellas and Ignacio Marin Garcia have posted Who Pays the Legal Fees in the Spanish Justice System? A Comparative Analysis of Civil and Labour Jurisdictions to SSRN.
This paper compares the legal fees rules in the first instance civil and labour courts in Spain. Governed by substantially different legal fees rules, the paper analyses their effects on the litigation level and the probability of settlement in order to depict an institutional design which favours settlement and avoids excessive litigation.
Tuesday, April 27, 2010
Today the Supreme Court decided Stolt-Nielsen S.A. v. AnimalFeeds International Corp., 08-1198, which addresses "whether imposing class arbitration on parties whose arbitration clauses are 'silent' on that issue is consistent with the Federal Arbitration Act (FAA)." The Court split 5-3, with Justice Alito writing for the majority, Justice Ginsburg writing for the dissent, and Justice Sotomayor taking no part.
Here are some excerpts from Justice Alito's majority opinion:
"While the interpretation of an arbitration agreement is generally a matter of state law, the FAA imposes certain rules of fundamental importance, including the basic precept that arbitration 'is a matter of consent, not coercion.' ...
"[A] party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so. ...
"Here, where the parties stipulated that there was 'no agreement' on this question, it follows that the parties cannot be compelled to submit their dispute to class arbitration."
Justice Ginsburg's dissenting opinion begins:
"When an arbitration clause is silent on the question, may arbitration proceed on behalf of a class? The Court prematurely takes up that important question and, indulging in de novo review, overturns the ruling of experienced arbitrators."
Monday, April 26, 2010
The Supreme Court granted certiorari today in Ortiz v. Jordan (No. 09-737), which presents the following question: "May a party appeal an order denying summary judgment after a full trial on the merits if the party chose not to appeal the order before trial?"
(It appears that the defendants' summary judgment motion was based on qualified immunity, which means they could have sought an appeal prior to trial via the collateral order doctrine.)
With hat tip to the Current Index of Legal Periodicals, here are some recent articles that may be of interest:
Hannah L. Buxbaum, Earl A. Snyder Lecture in International Law, National Jurisdiction and Global Business Networks, 17 Ind. J. Global Legal Stud. 165 (2010)
Maxine D. Goodman, A Hedgehog on the Witness Stand--What's the Big Idea?: The Challenges of Using Daubert to Assess Social Science and Nonscientific Testimony, 59 Am. U. L. Rev. 635 (2010)
Patricia W. Hatamyar, The Tao of Pleading: Do Twombly and Iqbal Matter Empirically? 59 Am. U. L. Rev. 553 (2010)
Emily Kadens, Justice Blackstone's Common Law Orthodoxy, 103 Nw. U. L. Rev. 1553 (2009)
Robert D. Peltz & Robert C. Weill, Corporate Representative Depositions: In Search of a Cohesive and Well-Defined Body of Law, 33 Nova L. Rev. 393 (2009)
Jacob B. Beausay, Comment, A Rogue Rule?: An Expose on the Unresolved Issues and Needless Litigation Created by Ohio's Affidavit of Merit Rule, 37 Cap. U. L. Rev. 1155 (2009)
Thomas J. Forr, Comment, Want Less Ideology on the Federal Bench? Pay Judges More, 158 U. Pa. L. Rev. 859 (2010)
Victor Petrescu, Note, Crash and Burn: Taylor v. Sturgell's Radical Redefinition of the Virtual Representation Doctrine, 64 U. Miami L. Rev. 735 (2010)
Charleton C. Copeland (University of Miami School of Law) has posted Federalism's Duty: Mediating Judicial Interaction in a Federal Regime to SSRN.
This article argues that this "middle path" represents a particular model of federalism enforcement-relational federalism enforcement. Relational federalism enforcement is the judicial mediation of the interaction of the national government and state governments that goes beyond merely invalidating particular practices as beyond the scope of power a particular institutional actor. Rather relational federalism enforcement imposes behavioral norms on both states and the national government as consistent with the enduring nature of their interaction under the constitutional structure of federal. In the 2008 term, the United States Supreme Court decided Haywood v. Drown, which dealt with the preemption of NY state judicial procedures related to damage actions against corrections officers. In the article, I argue that the Court's case law related to the preemption of state procedural rules is an important example of relational federalism enforcement. The article provides an overview of the theory of relational federalism, defends the practice of judicial mediation of the national state relationship through the creation of federalism-inspired rules of interaction, situates judicial mediation within a larger context of other federal courts doctrine (abstention and adequate state grounds doctrine), and critiques the Court's decision to preempt NY procedural rules in light of the theory of relational federalism. The Article takes issue with the Court's reasoning in Haywood, whose analytical framework fails to take state interests into account in deciding to preempt state law.