June 25, 2010
Washington Supreme Court Rejects Twombly/Iqbal
The Washington State Supreme Court decided yesterday to maintain the pleading standard that has long applied in Washington state courts, rebuffing a request to adopt the federal pleading standard that the U.S. Supreme Court embraced in Twombly and Iqbal. The decision is McCurry v. Chevy Chase Bank (No. 81896-7). Here’s an excerpt (footnote and some citations omitted):
Chevy Chase urges this court to reconsider the standard for dismissing a motion under CR 12(b)(6) in light of changes in the United States Supreme Court case law regarding Fed. R. Civ. P. 12(b)(6). Under CR 12(b)(6) a plaintiff states a claim upon which relief can be granted if it is possible that facts could be established to support the allegations in the complaint. See Halvorson v. Dahl, 89 Wn.2d 673, 674, 574 P.2d 1190 (1978) (“On a [CR] 12(b)(6) motion, a challenge to the legal sufficiency of the plaintiff’s allegations must be denied unless no state of facts which plaintiff could prove, consistent with the complaint, would entitle the plaintiff to relief on the claim.”); see also Christensen v. Swedish Hosp., 59 Wn.2d 545, 548, 368 P.2d 897 (1962) (citing Conley v. Gibson, 355 U.S. 41 (1957)).
However the United States Supreme Court has recently revised its dismissal standard under Fed. R. Civ. P. 12(b)(6), permitting dismissal unless the claim is plausibly based upon the factual allegations in the complaint – a more difficult standard to satisfy. See Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) (“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Chevy Chase encourages this court to similarly construe CR 12(b)(6). We decline.
The Supreme Court’s plausibility standard is predicated on policy determinations specific to the federal trial courts. The Twombly Court concluded: federal trial courts are incapable of adequately preventing discovery abuses, weak claims cannot be effectively weeded out early in the discovery process, and this makes discovery expensive and encourages defendants to settle “largely groundless” claims. See 550 U.S. at 557-58, 559. Neither party has shown these policy determinations hold sufficiently true in the Washington trial courts to warrant such a drastic change in court procedure.
Nor has either party here addressed countervailing policy considerations. For example, do current discovery expenses justify plaintiffs’ loss of access to that discovery and general access to the courts, particularly in cases where evidence is almost exclusively in the possession of defendants? Could runaway discovery expenses be addressed by better means – perhaps involving more court oversight of the discovery process or a change in the discovery rules?
Although three Justices dissented, they agreed with the majority about the pleading standard. From the dissenting opinion: “My discussion of CR 12(b)(6) should not be confused with the Fed. R. Civ. Pr. 12(b)(6) standard articulated by the United States Supreme Court. See Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). I do not suggest we modify our rule to align with the federal “plausible” standard in our decision today.”
(Hat Tip: Brooke Coleman)
June 24, 2010
Today's SCOTUS Decision in Morrison v. National Bank of Australia
Today the Supreme Court issued a unanimous decision in Morrison v. National Bank of Australia Ltd., covered earlier here and here. Justice Scalia wrote the majority opinion, joined by Chief Justice Roberts and Justices Kennedy, Thomas and Alito. The opinion begins: "We decide whether §10(b) of the Securities Exchange Act of 1934 provides a cause of action to foreign plaintiffs suing foreign and American defendants for misconduct in connection with securities traded on foreign exchanges."
It concludes: "Section 10(b) reaches the use of a manipulative or deceptive device or contrivance only in connection with the purchase or sale of a security listed on an American stock exchange, and the purchase or sale of any other security in the United States. This case involves no securities listed on a domestic exchange, and all aspects of the purchases complained of by those petitioners who still have live claims occurred outside the United States. Petitioners have therefore failed to state a claim on which relief can be granted."
Part II of the opinion rejects the Second Circuit's view that the extraterritoriality question goes to the federal court's subject matter jurisdiction, concluding instead that "to ask what conduct §10(b) reaches is to ask what conduct §10(b) prohibits, which is a merits question."
Justice Breyer filed an opinion concurring in part and concurring in the judgment. Justice Stevens filed an opinion concurring in the judgment, which was joined by Justice Ginsburg. Justice Sotomayor took no part.
Varghese on Comparative Evaluation of Judicial Appointment Processes
Professor John Varghese (Government Law College, Kozhikode) has posted "Judicial Appointments--The Domain Game" on SSRN.
The abstract states:
Federal Judicial Center Reports on SSRN
Emery Lee & Thomas Willging of the Federal Judicial Center have posted on SSRN three reports that may be of interest:
(1) Attorney Satisfaction with the Federal Rules of Civil Procedure: Report to the Judicial Conference Advisory Committee on Civil Rules. From the Executive Summary:
This report provides a brief comparison of the results of three surveys on the current operation of the Federal Rules of Civil Procedure (“Rules”). These surveys asked attorneys in the American College of Trial Lawyers (“ACTL”), the American Bar Association Section of Litigation (“ABA Section”), and the National Employment Lawyers Association (“NELA”) to respond to a series of statements regarding the Rules. The Federal Judicial Center (“FJC”) did not administer the ACTL survey, but it did administer the ABA Section and NELA surveys. Respondents in the ACTL survey had many more years of practice, on average, than respondents in the other surveys.
(2) Litigation Costs in Civil Cases: Multivariate Analysis. From the Executive Summary:
This report presents the results of multivariate analysis of factors associated with litigation costs reported in a national, case-based survey of attorneys of record in federal civil cases terminated in the fourth quarter of 2008. Separate models were estimated for plaintiff and defendant attorney respondents. Both models explain a large proportion of the variation in litigation costs.
(3) In Their Words: Attorney Views About Costs and Procedures in Federal Civil Litigation. From the Executive Summary:
The Advisory Committee on Civil Rules (“Committee”) of the Judicial Conference of the United States asked the Federal Judicial Center to study the costs of federal civil litigation. In the spring of 2009, the Center conducted a survey of a random sample of attorneys who had represented the plaintiff or defendant in a set of federal cases that had been terminated in the last quarter of 2008. The Center presented the results of that survey to the Committee in October 2009.
The Center also performed a multivariate analysis of the case-based survey results, identifying the variables that explain variations in attorney estimates of the costs of civil litigation in their cases. To supplement the multivariate analysis, District Judge John Koeltl, chair of the Planning Committee for the May 2010 Litigation Review Conference at Duke Law School, and the Center agreed that it would be useful for the Center to interview a number of the attorneys who responded to the case-based survey. The purpose is to present attorneys’ general experiences and thoughts about the factors found to be associated with the costs of litigation. Interviews help explain and illuminate the quantitative findings presented in the other two reports. This report documents those interviews, organizing them where possible to track the results of the multivariate analyses of the Center’s case-based survey....
June 23, 2010
9th Circuit Upholds 20 Person Class as Sufficiently Numerous
The lawsuit was originally certified as a class action with 74 class members who alleged violations of the Credit Repair Organizations Act. So many class members opted out of the class, however, that only 20 class members remained by the time of settlement.
The district court chose not to decertify the class, partially because each claimant, whose damages were only around $600 would create docket-clogging negative expected value individual actions.
The Ninth Circuit upheld this result, holding that although numerosity typically requires at least 40 class members, small classes are a permissible rarity, especially in a situation where class litigation had advanced to the settlement stage.
June 22, 2010
Reading the Kagan Tea Leaves on Twombly/Iqbal
We blogged earlier about Supreme Court nominee Elena Kagan’s civil procedure paper trail.
As for her views on one of today’s most controversial issues in civil procedure — federal pleading standards — a recent New York Times article starts with an interesting story about Kagan’s service in the Clinton administration. Kagan’s first Oval Office presentation involved the 1995 Private Securities Litigation Reform Act (PSLRA), and Kagan expressed particular concern about the Act’s heightened pleading standards. From the article, Bill Clinton Speaks Out on Kagan:
“Against the wishes of his economic team and top Congressional Democrats, Mr. Clinton in late 1995 was considering vetoing new legislation that was framed as a way to halt frivolous lawsuits against the securities industry. At his direction, Ms. Kagan had analyzed the bill and determined that it would raise the bar so high for such suits that shareholders could be prevented from pursuing legitimate fraud claims. . . . Mr. Clinton accepted her judgment and issued a surprise veto — one of two occasions when he was overridden by Congress.”
Perhaps a Justice Kagan will be similarly concerned about the direction of federal pleading standards after Twombly and Iqbal?
June 21, 2010
SCOTUS Issues Arbitration Decision in Rent-A-Center
The Supreme Court has issued its decision in Rent-A-Center, West Inc. v. Jackson, No. 09-497.
Holding: An arbitrator, not a court, is empowered to decide whether an arbitration agreement as a whole, signed as a condition of employment and including a clause providing that questions of interpretation, applicability, enforceability, or formation of the agreement would be questions for the arbitrator to resolve, is unconscionable under state law.
More coverage is available at SCOTUSblog.
Wasserman on Best Practices, Student-Centeredness & Teaching Civil Procedure
Over at PrawfsBlawg, Howard Wasserman (Florida International) has this post, which shares some of his recent experiences in the classroom and describes how trends in law school pedagogy may be in tension with one another.