Tuesday, May 3, 2011
The Blog of the Legal Times has a good post on whether Bin Laden's death will have any effect on those seeking civil redress from the harms he caused on 9/11. The short answer? Not much. From the post:
Bin Laden’s death could open the door to civil litigation targeted directly at him if new assets are uncovered, said Bill Wheeler of Mississippi’s Wheeler and Franks. The firm is pursuing a civil suit pending in Washington federal court stemming from the 1998 embassy bombings in Africa.
If an estate is discovered abroad, said Wheeler's co-counsel, James Franks, “that would be much easier than trying to get service on bin Laden [when he was alive].” But the ability to access those assets would depend on the probate laws in that country, he added.
Thursday, April 21, 2011
Andrew F. Popper (American University) has posted Capping Incentives, Capping Innovation, Courting Disaster: The Gulf Oil Spill and Arbitrary Limits on Civil Liability to SSRN.
Limiting liability by establishing an arbitrary cap on civil damages is bad public policy. Caps are antithetical to the interests of consumers and at odds with the national interest in creating incentives for better and safer products. Whether the caps are on non-economic loss, punitive damages, or set for specific activity, they undermine the civil justice system, deceiving juries and denying just and reasonable compensation for victims in a broad range of fields.
This paper Article postulates that capped liability on damages for offshore oil spills may well have been an instrumental factor contributing to the recent Deepwater Horizon catastrophe in the Gulf of Mexico. More broadly, it argues that caps on damages undermine the deterrent effect of tort liability and fail to achieve economically efficient and socially just results.
Tuesday, April 5, 2011
Over at Prawfsblawg, Howard Wasserman has been examining the recent decisions by U.S. District Judge James Beaty in civil lawsuits brought by former members of the Duke lacrosse team against the City of Durham, District Attorney Michael Nifong, and numerous other defendants.
His most recent post (Pleading in the Duke lacrosse opinions) looks at what Judge Beaty's decisions have to say about pleading, including his application of Iqbal.
Friday, March 11, 2011
Statements from the three witnesses at today’s congressional hearing on H.R. 966 (covered earlier here) are now available. Here are the links:
Elizabeth A. Milito
NFIB Small Business Legal Center
University of Houston Law Center
Victor E. Schwartz
Shook, Hardy & Bacon L.L.P.
Thursday, March 10, 2011
The House Judiciary Committee’s Subcommittee on the Constitution is holding a hearing tomorrow (March 11th) at 10:00 a.m. on H.R. 966. The legislation is entitled the "Lawsuit Abuse Reduction Act of 2011," and its purposes include "[t]o amend Rule 11 of the Federal Rules of Civil Procedure to improve attorney accountability."
Elizabeth A. Milito
NFIB Small Business Legal Center
Professor Lonny Hoffman
University of Houston Law Center
Mr. Victor E. Schwartz
Shook, Hardy & Bacon L.L.P.
If you’re in D.C. and want to check it out, the location is 2141 Rayburn House Office Building.
Friday, February 18, 2011
It's only marginally about civil procedure, but I am very amused by this whole lawsuit: R. Allen Stanford who is accused of running a "mini-Madoff" Ponzi scheme has filed a $7.2 billion lawsuit against a number of government officials for their behavior in investigating him.
Wondering what they did and why it's worth $7.2 billion? AmLaw Daily reports here.
Thursday, February 10, 2011
From David Ingram at Blog of the Legal Times comes the story New Group in Congress Pushes to Change Legal System. Initiated by six members of the House of Representatives, the newly-formed Congressional Civil Justice Caucus will be promoting “an array of changes to the civil justice system, including proposals related to medical malpractice reform, venue and federal pleading standards.”
Wednesday, February 9, 2011
In the ongoing litigation between Chevron and plaintiffs in Ecuador, Judge Kaplan of the SDNY has already blocked enforcement of the Ecuadorian judgment in the U.S. The New York Law Journal reports here on a host of interesting issues: restraining orders, enforcement of judgments, and the use of an internal law firm memo as the basis of the action.
Thursday, January 20, 2011
Monday, December 6, 2010
Monday, November 15, 2010
Sunday’s New York Times contains an article Investors Put Money on Lawsuits to Get Payouts, which begins:
Large banks, hedge funds and private investors hungry for new and lucrative opportunities are bankrolling other people’s lawsuits, pumping hundreds of millions of dollars into medical malpractice claims, divorce battles and class actions against corporations — all in the hope of sharing in the potential winnings.
The loans are propelling large and prominent cases. Lenders including Counsel Financial, a Buffalo company financed by Citigroup, provided $35 million for the lawsuits brought by ground zero workers that were settled tentatively in June for $712.5 million. The lenders earned about $11 million.
Most investments are in the smaller cases that fill court dockets. Ardec Funding, a New York lender backed by a hedge fund, lent $45,000 in June to a Manhattan lawyer hired by the parents of a baby brain-damaged at birth. The lawyer hired two doctors, a physical therapist and an economist to testify at a July trial. The jury ordered the delivering doctor and hospital to pay the baby $510,000. Ardec is collecting interest at an annual rate of 24 percent, or $900 a month, until the award is paid.
Thursday, September 2, 2010
Earlier this summer, Paul Ceglia filed a lawsuit in a Buffalo, New York state court claiming he’s entitled to an 84% stake in Facebook. Mark Zuckerberg, the defendant and Facebook CEO, removed the case to U.S. District Court for the Western District of New York on diversity grounds. Zuckerberg contends that he’s a citizen of California and the plaintiff is a citizen of New York.
Last month the plaintiff filed a motion to remand the case, arguing that Zuckerberg is still domiciled in New York, thus destroying diversity of citizenship. Zuckerberg filed his opposition to remand this week.
Zuckerberg’s citizenship for diversity purposes has already been the subject of a published federal court decision. In ConnectU LLC v. Zuckerberg, 482 F. Supp. 2d 3 (D. Mass. 2007) (Hat Tip: Kevin Clermont), the court held that as of September 2, 2004, Zuckerberg was still domiciled with his parents in New York. That decision was reversed on other grounds.
Tuesday, August 17, 2010
The U.S. Court of Appeals for the Fifth Circuit has decided Clemens v. McNamee, No. 09-20625 (Aug. 12, 2010). If those names sound familiar, it’s because this case is the defamation action filed by baseball legend Roger Clemens against ex-trainer Brian McNamee based on McNamee’s statements that Clemens used performance-enhancing drugs. Clemens filed the case in Texas state court, and McNamee removed it to the U.S. District Court for the Southern District of Texas. The district court dismissed for lack of personal jurisdiction. A Fifth Circuit panel has now affirmed the dismissal in a 2-1 decision. From the majority opinion authored by Judge W. Eugene Davis:
In this appeal, we consider whether allegedly defamatory statements made elsewhere but which caused damage to the plaintiff in the forum state are sufficient to confer personal jurisdiction over the defendant when the content and context of the statements lack any connection with the forum state. For the following reasons, we agree with the district court that the plaintiff failed to establish personal jurisdiction over the defendant and affirm.
. . .
The most instructive case on this issue from the Supreme Court is Calder v. Jones, 465 U.S. 783 (1984). . . . We read Calder as requiring the plaintiff seeking to assert specific personal jurisdiction over a defendant in a defamation case to show (1) the subject matter of and (2) the sources relied upon for the article were in the forum state. Thus the question in this case further narrows to whether McNamee’s allegedly defamatory statements were aimed at or directed to Texas. . . . [T]he statements in this case concerned non-Texas activities–the delivery of performance-enhancing drugs to Clemens in New York and Canada. The statements were not made in Texas or directed to residents of Texas.
In support of jurisdiction, Clemens points to the harm he suffered in Texas and to McNamee’s knowledge of the likelihood of such damage in the forum. Yet . . . Clemens has not made a prima facie showing that McNamee made statements in which Texas was the focal point: the statements did not concern activity in Texas; nor were they made in Texas or directed to Texas residents any more than residents of any state. As such, the district court did not err in dismissing Clemens’ suit for lack of personal jurisdiction over McNamee.
From the dissenting opinion by Judge Catharina Haynes:
Because I conclude that specific jurisdiction exists here, I respectfully dissent. McNamee had sufficient minimum contacts with Texas, and the exercise of personal jurisdiction does not offend traditional notions of fair play and substantial justice.
. . .
In this case, there are two independent grounds upon which the minimum contacts inquiry is satisfied. First, McNamee made numerous business trips to Texas to train Clemens, and these trips “relate to” and form an integral part of the instant cause of action. Second, under the Calder “effects test,” McNamee established minimum contacts with Texas because, taking Clemens’s allegations as true, McNamee intentionally directed his false claims at Texas, where he knew Clemens resided and where it was foreseeable that the brunt of the injury from McNamee’s statements would be felt.
Friday, August 13, 2010
Last month we covered the hearing before the U.S. Judicial Panel on Multidistrict Litigation (JPML) on the BP Oil Spill litigation (In Re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, MDL No. 2179). This week the JPML ordered, pursuant to 28 U.S.C. § 1407, that actions relating to the BP Oil Spill be transferred to the U.S. District Court for the Eastern District of Louisiana and assigned to Judge Carl J. Barbier for consolidated pretrial proceedings.
From the panel’s opinion:
The actions before the Panel indisputably share factual issues concerning the cause (or causes) of the Deepwater Horizon explosion/fire and the role, if any, that each defendant played in it. Centralization under Section 1407 will eliminate duplicative discovery, prevent inconsistent pretrial rulings, including rulings on class certification and other issues, and conserve the resources of the parties, their counsel, and the judiciary. Centralization may also facilitate closer coordination with Kenneth Feinberg’s administration of the BP compensation fund. In all these respects, centralization will serve the convenience of the parties and witnesses and promote the more just and efficient conduct of these cases, taken as a whole.
. . .
The parties have advanced sound reasons for a large number of possible transferee districts and judges. Upon careful consideration, however, we have settled upon the Eastern District of Louisiana as the most appropriate district for this litigation. Without discounting the spill’s effects on other states, if there is a geographic and psychological “center of gravity” in this docket, then the Eastern District of Louisiana is closest to it. Considering all of the applicable factors, we have asked Judge Carl J. Barbier to serve as transferee judge. He has had a distinguished career as an attorney and now as a jurist. Moreover, during his twelve years on the bench, Judge Barbier has gained considerable MDL experience, and has been already actively managing dozens of cases in this docket. We have every confidence that he is well prepared to handle a litigation of this magnitude.
The order includes “the relatively few personal injury/wrongful death actions” as well as the “putative class actions seeking recovery for property damage and other economic losses.”
Friday, July 30, 2010
Yesterday the U.S. Judicial Panel on Multidistrict Litigation (JPML) heard argument on various motions to centralize litigation relating to the BP Oil Spill. Orders relevant to the hearing are available on the JPML website here.
Saturday, July 24, 2010
Since some of the provisions of Arizona Senate Bill 1070 (the controversial Arizona immigration statute) implicate federalism issues, you might find "Arizona Senate Bill 1070: A Preliminary Report" of interest. It has been posted on SSRN by its authors: Professors Gabriel J. Chin (University of Arizona James E. Rogers College of Law; University of Arizona School of Government and Public Policy), Carissa Byrne Hessick (Arizona State University Sandra Day O'Connor College of Law), Toni M. Massaro (University of Arizona James E. Rogers College of Law), and Marc L. Miller (University of Arizona James E. Rogers College of Law).
The abstract states:
Tuesday, June 22, 2010
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?
Tuesday, June 15, 2010
The article documents the difficulties that private parties and various levels of government authorities have faced in coordinating control and cleanup efforts. From the article:
Closer to shore, the efforts to keep the oil away from land have not fared much better, despite a response effort involving thousands of boats, tens of thousands of workers and millions of feet of containment boom.
From the beginning, the effort has been bedeviled by a lack of preparation, organization, urgency and clear lines of authority among federal, state and local officials, as well as BP. As a result, officials and experts say, the damage to the coastline and wildlife has been worse than it might have been if the response had been faster and orchestrated more effectively.
“The present system is not working,” Senator Bill Nelson of Florida said Thursday at a hearing in Washington devoted to assessing the spill and the response. Oil had just entered Florida waters, Senator Nelson said, adding that no one was notified at either the state or local level, a failure of communication that echoed Mr. Bonano’s story and countless others along the Gulf Coast.
“The information is not flowing,” Senator Nelson said. “The decisions are not timely. The resources are not produced. And as a result, you have a big mess, with no command and control.” (emphasis added)
This should not be news. Similar complaints were leveled in the aftermath of Hurricane Katrina. Erin Ryan (William & Mary) gives a thorough outline of these problems and various responses in her article Federalism and the Tug of War Within: Seeking Checks and Balance in the Interjurisdictional Gray Area, 66 Md. L. Rev. 503, 518-36 (2007).
Are these problems of cooperative/shared/interactive federalism intractable? Or can we learn and improve from the Katrina and BP experiences before the next disaster, particularly before incidences that might have a lower profile but cause equal devastation to local residents and paralysis among state, local, and federal officials.
Thursday, June 10, 2010
The New York Times reports here that a new settlement agreement has been reached that would compensate about 10,000 ground zero rescue and cleanup workers. This new settlement follows an earlier settlement agreement that was rejected as inadequate by United States District Judge Alvin Hellerstein. The new settlement agreement reflects reduced attorney fees (25%, down from 33.33% in the earlier agreement), providing an additional $50 million for the plaintiffs. The new settlement agreement was well received by Judge Hellerstein, but must still be approved by plaintiffs.
Wednesday, June 9, 2010
This week the U.S. Senate has been holding hearings to consider legislation that would lift or alter the liability cap for oil spills. Under the 1990 Oil Pollution Act (33 U.S.C. s. 2704), BP's liability is limited to $75 million in economic damages. Various proposals have suggested raising the cap to $10 billion or eliminating it completely.
Representatives of the oil industry are lobbying against the change, arguing that that any change to the law would expose the federal government to breach of contract liability with the oil industry.