Wednesday, May 30, 2012
The South Carolina Law Review’s symposium issue, “Personal Jurisdiction for the Twenty-First Century: The Implications of McIntyre and Goodyear Dunlop Tires,” is now available online:
[On] Tuesday, the justices granted review in a case involving the Fair Debt Collections Practices Act — Marx v. General Revenue Corp. The Court will decide whether a prevailing defendant in a lawsuit under that law may be awarded costs when the lawsuit was not brought in bad faith or for the purpose of harassment.
From the ABA Journal online:
The U.S. Supreme Court won’t hear the case of Joel Tenenbaum, a doctoral graduate who was originally ordered to pay $675,000 for downloading copyrighted music.
The trial judge had found the verdict was constitutionally excessive and reduced the amount to $67,500. On appeal the Boston-based 1st U.S. Circuit Court of Appeals ruled the judge should have avoided the constitutional question through remittitur. The court reinstated the $675,000 award, but ordered the trial judge to consider remittitur.
A Supreme Court petition filed by Harvard University law professor Charles Nesson had objected to the remittitur procedure because it allows the plaintiffs to reject the reduced award and opt for a retrial. “The 1st Circuit’s misuse of remittitur threatens to push the defendant down an endless litigation rathole,” Nesson argues. The prospect of a “retrial merry-go-round” forces defendants to settle, avoiding the constitutional issues, he wrote.
Tuesday, May 29, 2012
From the Civil Procedure Profs listserv:
Dear AALS Litigation Section Members:
I am writing as Chair
of the AALS Section on Litigation to inform you of the Call for Papers
associated with the Section's Program at the 2013 Annual Meeting scheduled for
January 4-7, in New Orleans, Louisiana. The Program is titled "The Class Action
Fairness Act of 2005: Perspectives and Predictions". A pdf version of the Call
for Papers is attached and the text of the Call appears below for your
The author of the selected paper will be invited to join a
panel that includes: John Beisner (Skadden Arps), Elizabeth Cabraser (Lieff,
Cabraser, Heimann & Bernstein), Richard Marcus (UC Hastings), Linda Mullenix
(U. of Texas), Jay Tidmarsh (Notre Dame) and Georgene Vairo (Loyola of
Professor of Law
Marshall Law School
315 South Plymouth Court
Call for Papers
Section on Litigation
AALS Annual Meeting, January 4-7, 2013, New
“The Class Action Fairness Act of 2005: Perspectives and
In connection with the January 2013 Annual Meeting of
the Association of American Law Schools in New Orleans, Louisiana, the Section
on Litigation will be sponsoring a panel discussion entitled: “The Class Action
Fairness Act of 2005: Perspectives and Predictions”. The Sections on Civil
Procedure and Federal Courts are co-sponsoring the program.
enactment, CAFA’s supporters hailed the statute as a needed remedy to combat
abusive state court class action proceedings as well as an important means to
achieve tort reform. With several years-on since CAFA’s enactment, the panel
will explore some of the significant issues that CAFA poses for litigants and
the legal community as a whole. The panelists include:John Beisner (Skadden
Arps), Elizabeth Cabraser (Lieff, Cabraser, Heimann & Bernstein), Richard
Marcus (UC Hastings), Linda Mullenix (U. of Texas), JayTidmarsh (Notre Dame),
and Georgene Vairo (Loyola of LA).
The Program will include a speaker
selected from this Call for Papers.
Eligible papers may address any topic
related to CAFA, including topics that consider its effectiveness in achieving
its stated aims, its influence on litigation strategies, and its impact on the
legal community and society as a whole. Both essay and article length papers are
welcome. The selected author will be invited to participate in the Program, at
the expense of the author’s institution. The Review of Litigation at the
University of Texas has agreed to publish the paper of the selected author and
other articles submitted by program panel members (subject to the Review’s final
approval of the articles) in its Symposium issue. The Review is well-known for
its publication of scholarship related to litigation, civil procedure and
The deadline to submit a draft paper is Thursday,
September 6, 2012. Please submit the draft paper to Professor Kenneth Kandaras,
Chair of the Section of Litigation, as an attachment to an e-mail sent to
Professor Kandaras at firstname.lastname@example.org. The attachment should be in Word or PDF
format. Late submissions will not be accepted. A subcommittee of the Section’s
Executive Committee will review the submissions. Decisions will be communicated
no later than October 1,
Section_Call for Papers 2013.pdf (42 k): https://connect.aals.org/p/fo/do/download=1&fid=5151
post online: https://connect.aals.org/p/fo/st/post=21333&anc=p21333#p21333
Plaintiff, a construction company incorporated in the British Virgin Islands and headquartered in Israel, and defendant, the National Port Authority of Liberia, entered into a contract to build and operate a container park in Monrovia, Liberia's capital. Shortly thereafter, however, the government of Liberia changed, and the new government repudiated the contract for alleged failure to comply with competitive bidding procedures. Plaintiff initiated an arbitration proceeding in London, and the arbitrator awarded over $44,000,000 in damages to plaintiff. Plaintiff then filed an action to confirm the arbitration award against defendant in the D.C. district court. The district court dismissed the action for lack of personal jurisdiction.
On appeal, the D.C. Circuit held that the Foreign Sovereign Immunities Act provided statutory personal jurisdiction over the Port Authority, but that the Fifth Amendment Due Process Clause also required constitutional personal jurisdiction. The Port Authority, although state-owned, established its juridical separateness from the government of Liberia, which, as a foreign state, was not a "person" protected by the Fifth Amendment. Because the plaintiff failed to show minimum contacts of the Port Authority with the United States, the court affirmed the district court's dismissal for lack of personal jurisdiction. GSS Group Ltd. v. National Port Authority, No. 11-7093 (D.C. Cir. May 25, 2012).
Now available on the Courts Law section of JOTWELL is an essay by Prof. Suzette Malveaux (Catholic University) entitled Plausibility Pleading and Employment Discrimination. It reviews a recent article by Prof. Charles Sullivan (Seton Hall), Plausibly Pleading Employment Discrimination, 52 Wm. & Mary L. Rev. 1613 (2011). The review begins:
In a sea of law review articles analyzing the potential impact of the more rigorous federal pleading standard of Ashcroft v. Iqbal, Charles Sullivan’s Plausibly Pleading Employment Discrimination stands out for a number of reasons. As an initial matter, Sullivan grapples with an important question plaguing the civil rights community and the employment bar: does Swierkiewicz v. Sorema—the unanimous 2002 opinion that took a lenient approach to pleading discrimination cases—remain good law post-Iqbal? Sullivan argues that Iqbal did not overturn Swierkiewicz, leaving intact the ability of plaintiffs to plead employment discrimination without alleging a prima facie case under the McDonnell Douglas test.
But Sullivan then considers the alternate view: assuming arguendo that Iqbal did overrule Swierkiewicz, what should plaintiffs do to avoid dismissal for failure to state a claim under this more rigorous pleading regime? Sullivan offers a variety of approaches, each with strengths and weaknesses. This willingness to explore the proverbial edge of the envelope makes this article a compelling read. It combines pragmatism, creativity, and boldness at a time when many are struggling to make sense of the impact of the new federal pleadings standard in the civil rights arena. Given the importance of pleadings as an access to justice issue, this article provides an invaluable perspective.