September 24, 2011
Conference announcement: Legal Fees in Complex Litigation and Transactions
From the National Law Journal: See more here.
GW Law Conference on Legal Fees in Complex Litigation and Transactions: Guidance for In-House Legal Departments on the 'Reasonable Fee' and Ethical Legal Spend Control Strategies
Thursday, October 13, 2011
8:30 am - 6 pm
The George Washington University Law School
2000 H Street NW | Washington, DC 20052
GW Law invites you to a timely discussion of complex litigation and transactional matters, focusing on legal fees and related ethical matters of special interest to in-house legal departments. Renowned faculty and practitioners will headline discussions, and audience participation will be welcome. This daylong event will feature a luncheon and keynote address, as well as a closing cocktail reception.
September 22, 2011
Decision of Interest on Standing: Second Circuit Denies En Banc Review in Amnesty Int'l v. Clapper
We covered earlier the Second Circuit’s decision in Amnesty International v. Clapper, 638 F.3d 118 (2d Cir. 2011), which held that the plaintiffs -- various attorneys, journalists, and labor, legal, media, and human rights organizations -- had standing to challenge federal wiretapping procedures.
Yesterday the full Second Circuit refused to rehear the case, evenly dividing in a 6-6 vote. The order denying rehearing was accompanied by five separate opinions.
September 21, 2011
Forum Non Conveniens Dismissal of BP Oil Spill Shareholder Suit
Last week Judge Ellison of the U.S. District Court for the Southern District of Texas issued an order dismissing on forum non conveniens grounds a shareholder derivative suit against BP arising out of the Deepwater Horizon explosion and oil spill. See In re BP Shareholder Derivative Litigation, 2011 WL 4345209, MDL No. 10-md-2185 (S.D. Tex. Sept. 15, 2011). From the opinion (citations omitted):
The Court concludes that England, as the focal point of this litigation, is the far more appropriate forum. Because this derivative lawsuit involves the internal governance of an English corporation, the convenience of the parties and the interests of justice favor England as a more convenient forum. This case is unique because it is a derivative lawsuit involving the internal affairs of a foreign corporation. Indeed, because Plaintiffs are just a handful of the thousands of potential shareholders that could sue the individual defendants on behalf of BP, their choice of forum is accorded less deference than the typical home forum plaintiff in a traditional two party lawsuit. Moreover, because this lawsuit calls for an inquiry into the knowledge and actions of BP's Board of Directors, the lion's share of the relevant documents and the majority of the individual defendants are located in England. Given the decreased deference accorded to Plaintiffs' choice of an American forum, the private interest factors weigh slightly in favor of dismissal.
It is the public interest factors, however, that most strongly favor England as the appropriate forum in which to proceed with this case. These factors persuade the Court that this action should be dismissed. The primary concern of this derivative litigation is the internal affairs of an English corporation, and the suit seeks to recover damages for the benefit of BP only. Accordingly, England has a greater interest in the resolution of this dispute. Moreover, English law governs this dispute and will determine whether the individual defendants breached their fiduciary duties and harmed BP in the process. Thus, English law would predominate and, if the case were to continue here, the Court would be faced with the formidable exercise of interpreting and applying a still nascent and evolving body of foreign law. The Court would be saddled with not only the ordinary task of adjudication, but also the additional administrative tasks characteristic of derivative actions articulated in Koster. Dismissing this case would relieve this Court of the substantial burdens of such undertakings. Finally, the citizens of Louisiana should not be burdened, as factfinders, with the exercise of applying complex English law to determine whether the individual defendants harmed an English company through unlawful acts and inadequate oversight. As these public interest considerations counsel strongly in favor of dismissal, Defendants' Motion is hereby GRANTED.
(Hat Tip: Marc Poirier)
September 20, 2011
Decision of Interest: Ninth Circuit Applies Wal-Mart v. Dukes to Costco Class Action
Last week the Ninth Circuit issued its decision in Ellis v. Costco Wholesale Corp., No. 07-15838, ___ F.3d ___, 2011 WL 4336668 (9th Cir. Sept. 16, 2011). From the opinion by Judge N. Randy Smith:
This complicated case requires us to consider a number of issues relating to class certification. Several of these issues have recently been clarified by the Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011). Given this new precedent altering existing case law, we must remand to the district court. Specifically, we take the following actions: (1) Because at least one named Plaintiff (Sasaki) alleges a concrete injury that is both directly traceable to Costco’s allegedly discriminatory practices and is redressable by both injunctive relief and monetary damages, we affirm the district court’s ruling on standing. (2) We vacate and remand the district court’s ruling as to “commonality” under Rule 23(a) of the Federal Rules of Civil Procedure. The district court failed to conduct the required “rigorous analysis” to determine whether there were common questions of law or fact among the class members’ claims. Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 161 (1982). Instead it relied on the admissibility of Plaintiffs’ evidence to reach its conclusion on commonality. (3) We vacate the district court’s ruling as to “typicality” under Rule 23(a), because the district court failed to consider the effect that defenses unique to the named Plaintiffs’ claims have on that question. (4) We affirm the district court’s ruling that Sasaki is an adequate class representative under Rule 23(a). As a current employee who continues to be denied promotion, Sasaki has incentive to vigorously pursue injunctive relief as well as monetary damages on behalf of all the class members. However, we vacate the district court’s finding that Ellis and Horstman could adequately represent the class, because they were former employees and had no incentive to pursue injunctive relief. (5) In light of Wal-Mart’s rejection of the “predominance” test, 131 S. Ct. at 2557-59, the district court must consider whether the claims for various forms of monetary relief will require individual determinations and are therefore only appropriate for a Rule 23(b)(3) class. Thus, we vacate the district court’s certification of the class under Rule 23(b)(2).