September 7, 2012
Amicus Files Brief Explaining Antitrust Law in Cartoons to Meet Five-Page Limit
The ABA Journal reports that "a lawyer who opposes the Justice Department’s proposed antitrust settlement with three publishers of e-books has filed an amicus brief (PDF) in the form of a comic strip."
After U.S. District Judge Denise Cote of Manhattan limited his brief to five pages, lawyer Bob Kohn conceived of the “graphic novelette” and says it complies with court rules requiring 12-point or larger type and one-inch margins. Although Publishers Weekly called the brief "brilliant," it apparently failed to persuade Judge Cote, who approved the settlement.
September 6, 2012
Federal Court Strikes Down Secrecy of Delaware Chancery Court Arbitrations
A federal district court in Delaware has held that because the First Amendment provides a qualified right of access to arbitration proceedings established by Delaware law and implemented by the Delaware Court of Chancery, such proceedings must be open to the public. Delaware Coalition for Open Government v. Strine, No. 1:11-1015, 2012 WL 3744718 (D. Del. Aug. 30, 2012).
Delaware law gives the Court of Chancery “the power to arbitrate business disputes when the parties request a member of the Court of Chancery, or such other person as may be authorized under rules of the Court, to arbitrate a dispute.” 10 Del. C. § 349(a). Once the parties file an appropriate petition, "the Chancellor appoints a Chancery Court judge to preside over the case as the arbitrator."
The Chancery Court Rules require that all parts of the proceeding, including all filings and all contacts between the arbitrator and any party are 'confidential and not of public record.' Del. Ch. Ct. R. 97 a)(4), 98(b). The Register in Chancery does not file the parties' petition on the court's public docketing system. Id. 97(a)(4). None of the hearings is open to the public.
Plaintiff challenged the confidentiality provisions of the law, arguing that the First Amendment prevents the defendants from closing the proceeding to the public and press. Judge McLaughlin granted plaintiff's motion for judgment on the pleadings.
Although the Supreme Court has never addressed access to civil judicial proceedings, every Court of Appeals to consider the issue, including the Court of Appeals for the Third Circuit, has held that there is a right of access to civil trials. See Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1061 (3d Cir.1984); . . . .
The Delaware proceeding, although bearing the label arbitration, is essentially a civil trial. . . . In the Delaware proceeding, the parties submit their dispute to a sitting judge acting pursuant to state authority, paid by the state, and using state personnel and facilities; the judge finds facts, applies the relevant law, determines the obligations of the parties; and the judge then issues an enforceable order. This procedure is sufficiently like a civil trial that Publicker Industries governs. . . .
The public benefits of openness are not outweighed by the defendants' speculation that such openness will drive parties to use alternative non-public fora to resolve their disputes. Even if the procedure fell into disuse, the judiciary as a whole is strengthened by the public knowledge that its courthouses are open and judicial officers are not adjudicating in secret.
September 5, 2012
Davis and Lande on Private Antitrust Enforcement
Just posted on SSRN: "Towards an Empirical and Theoretical Assessment of Private Antitrust Enforcement" by Joshua P. Davis and Robert H. Lande.
The dominant view in the antitrust field is that private enforcement cases, and especially class actions, accomplish little or nothing positive but, on the contrary, are counterproductive. Despite strongly worded convictions, that view has been premised on anecdotal, self-serving and insufficiently substantiated claims. Indeed, the authors' 2008 study of 40 private cases appears to constitute the only systematic effort to gather information about a significant number of private antitrust actions. That study generated a great deal of controversy, including questioning of our conclusions by high officials at the Department of Justice and by Professor Daniel Crane at the University of Michigan Law School.
Given this subject's importance and controversial nature we undertook a supplemental study of 20 additional private antitrust cases. This article analyzes the 20 new cases, compares and contrasts them with that of our earlier group, and draws insights from all 60.
The studies demonstrate that private litigation has provided substantial cash compensation to victims of anticompetitive behavior: at least $33.8 to $35.8 billion. The studies also show that private antitrust enforcement has had an extremely strong deterrent effect. In fact, private enforcement probably deters more anticompetitive behavior than even the appropriately acclaimed anti-cartel program of the U.S. Department of Justice Antitrust Division.
Another purpose of our study was to ascertain important characteristics of private antitrust cases that could help influence the debate over their efficacy. These include whether there were indicia that the cases had underlying merit, the significance of recoveries from foreign violators of U.S. antitrust law, and the sizes of attorney’s fee awards and claims administration expenses.
Finally, this article responds to criticisms of our analysis and our conclusions. In particular, we explain why the Department of Justice officials are incorrect in challenging our claims about the deterrence effects of private antitrust enforcement and why Professor Crane is similarly mistaken regarding its compensation effects. We explain why our earlier study did indeed demonstrate the truly significant benefits of private antitrust actions — conclusions our new empirical work confirms and strengthens.
September 4, 2012
Fifth Circuit Adopts “Flexible Due Diligence” Standard For Service of a Foreign Defendant
In Lozano v. Bosdet et al., No. 11-60736 (5th Cir. Aug. 31, 2012), a Mississippi citizen sued the driver of a rental car, her passengers, and Enterprise Rent-A-Car for a traffic accident on the last day before the statute of limitations expired. Enterprise removed the case to federal district court (and was later granted summary judgment). The other defendants were individuals believed to be living in England. Within 120 days of the complaint’s filing, plaintiff attempted service by restricted delivery mail and also hired a private process server to communicate with a local agent of two of the defendants. At the end of the 120 days, plaintiff moved for and was granted an additional 120-day period, and later an additional 30-day period, in which to complete service. Still failing service, plaintiff moved for yet another extension, stating that steps were underway to accomplish service according to Rule 4(f)’s provisions for service outside the U.S. The district court denied the final request and dismissed the suit without prejudice.
Upon plaintiff’s appeal, the Fifth Circuit reversed. The court held that the 120-day service requirement in Rule 4(m) was subject to an express exception for service of individuals abroad under the Hague Convention. However, the court did not view the time allotted for service unlimited but subject to a “flexible due diligence standard” measured by “good faith and reasonable dispatch.”
Further, the court held that because the plaintiff would likely be barred from refiling a dismissed suit due to the statute of limitations, a higher standard applicable to a with-prejudice dismissal applied. In such a case, dismissal should only be granted when there was a “clear record of delay or contumacious conduct by the plaintiff,” and “when the delay (1) was caused by the plaintiff himself, as opposed to by counsel; (2) resulted in actual prejudice to the defendants; or (3) was caused by intentional conduct.” The court held that this standard had not been met and reversed the dismissal.