Civil Procedure & Federal Courts Blog

This Week's SCOTUS Oral Arguments: Mootness, Class Actions, And FRCP 54(d) (Oh My!)

The Supreme Court heard oral argument in several interesting cases this week. Below are some links…

Already LLC v. Nike Inc., No. 11-982 (Article III & mootness)

• Oral argument transcript
• PatentlyO (Megan La Belle)
• Reuters (Jonathan Stempel)
• SCOTUSblog (Lyle Denniston)

Amgen Inc. v. Connecticut Retirement Plans, No. 11-1085 (class actions)

• Oral argument transcript
• Jurist (Julia Zebley)
• N.Y. Times (Adam Liptak)
• Point of Law (Ted Frank)
• Reuters (Jonathan Stempel)
• SCOTUSblog (Steven Kaufhold)

Comcast v. Behrend, No. 11-864 (class actions)

• Oral argument transcript
• Jurist (Julia Zebley)
• N.Y. Times (Adam Liptak)
• Reuters (Jonathan Stempel)
• SCOTUSblog (Sergio Campos)
• Wall Street Journal (Brent Kendall)
  

Marx v. General Revenue Corp., No. 11-1175 (Rule 54(d))

• Oral argument transcript
• Consumer Financial Services Blog (Don Maurice)

--A

AO Statistics Show Bankruptcy Filings Down in FY 2012

The Third Branch News reports, "Bankruptcy cases filed in federal courts for fiscal year 2012, the 12-month period ending September 30, 2012, totaled 1,261,140, down 14 percent from the 1,467,221 bankruptcy cases filed in FY 2011, according to statistics released today by the Administrative Office of the U.S. Courts."  In addition, "[f]or the 12-month period ending September 30, 2012, business bankruptcy filings—those where the debtor is a corporation or partnership, or the debt is predominantly related to the operation of a business—totaled 42,008, down 16 percent from the 49,895 business filings reported in the 12-month period ending September 30, 2011."  Filings decreased for every bankruptcy chapter (7, 11, 12, and 13). 

The link above contains further links to detailed statistics.

PM

Nerve Center Test in Drug/Device Cases

The folks over at Drug and Device Law Blog have a post on some recent cases applying the Hertz v. Friend nerve center test to pharmaceutical litigation.

From the post: 

That was the one of the central questions in Moore v. Johnson & Johnson, No. 12-490, slip op. (E.D. Pa. Nov. 1, 2012). It’s a Tylenol case and the Tylenol in question was produced by a subsidiary of Johnson & Johnson, McNeil-PPC, Inc. (also a defendant) at a Pennsylvania facility.  Plaintiff also sued two J&J executives and Costco (where plaintiff bought the Tylenol). Plaintiff is from Washington state but brought her suit in Pennsylvania.  Defendants removed and plaintiffs filed a motion to remand arguing in part that McNeil-PPC is a citizen of Pennsylvania and therefore barred from removing a Pennsylvania state court action.  Slip op. at 2.  Plaintiff contended that McNeil’s “nerve center” was in Pennsylvania because three out of four of its highest-ranking officers are based in Pennsylvania.  Id. at 5.   

            Defendant, on the other hand, claimed McNeil’s principal place of business was in New Jersey.  The basis for this position is that McNeil’s Pennsylvania-based officers’ “actual management responsibilities are limited to that division.”  Id. at 6.  Meanwhile, defendants argued that

The bulk of the management functions for McNeil-PPC and other J&J subsidiaries . . . are carried out by executives associated with J&J’s Family of Consumer Companies (“FCC”). . . overseen by a Group Operating Committee (“GOC”) that exercises high-level direction for the corporate entities within its sector. 

Id.  And that the GOC and FCC are made of people who work in Skillman, New Jersey.  Id. at 6-7.   However, with the exception of one, “none of the senior executives running operations for the FCC are officers of McNeil-PPC, nor are they employees of that particular corporation.  They are employed by other J&J entities.” Id. at 7.  So, to agree with defendants – which the court did -- it had to “consider activities of executives outside a party’s corporate structure.”  Id. at 17.  That sounds a lot like piercing the corporate veil – something corporate defendants usually vehemently oppose.  So, while defendants got the result they wanted in this case – remand denied -- we actually aren’t sure how to feel about this decision.

RJE

Veljanovski on Third Party Litigation Funding in Europe

Cento Veljanovski of Case Associates, Institute of Economic Affairs, and Centre for Regulation and Market Analysis, has published in the Journal of Law, Economics and Policy, Vol 8, 2012, an article entitled “Third Party Litigation Funding in Europe.”  The article is posted on SSRN.

Abstract:

Based on interviews of all UK based third party litigation funders the paper provides new empirical evidence on the nature, extent and type of third party funding of litigation. It also examines the emergence of new group or class action third party funders in Europe focused primarily on follow-on cartel damage claims. The discussion is then expanded to the broader issues such as the justification for third party funding, its impact and a critical assessment of the arguments against such funding.

PM