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.
Thursday, May 27, 2010
Two federal courts have responded to BP's motions to stay law suits regarding the oil spill in the Gulf of Mexico pending a determination of a multidistrict litigation panel on whether to combine the 130+ cases. One granted the stay and one denied it. A federal court in Mobile, Alabama denied BP's request to delay filing an answer, while another federal court in New Orleans, Louisiana granted BP's motion to stay proceedings. Judge Martin Feldman based his decision to stay the New Orleans proceedings on the "grave potential of conflicting discovery orders," which poses "a hardship for defendants [and] mocks an efficient and orderly judicial system."
The National Law Journal has more about the conflicting decisions on BP's motions to stay proceedings here.
Tuesday, May 25, 2010
The House Judiciary Committee's Subcommittee on Courts and Competition Policy is holding a hearing this afternoon (5/25/2010, 2:00 p.m.) on H.R. 5281, the "Removal Clarification Act of 2010."
The bill would amend the federal officer removal statute (28 U.S.C. § 1442) to provide that "civil action[s]" removable under § 1442 "include any proceeding in which a judicial order, including a subpoena for testimony or documents, is sought or issued" from a federal officer. The bill would also exempt federal officer removal rulings from 28 U.S.C. § 1447(d)'s bar on appellate review of district court remand orders.
Go to the following links for the bill's text and legislative history and more information about the hearing. A link to a live webcast is available here, or you can stop by 2141 Rayburn House Office Building. The witness list includes:
Beth S. Brinkmann
Deputy Assistant Attorney General, Civil Division
U.S. Department of Justice
Irvin B. Nathan
Office of the General Counsel
U.S. House of Representatives
Lonny S. Hoffman
George Butler Research Professor of Law
University of Houston Law Center
Arthur D. Hellman
Professor of Law
University of Pittsburgh School of Law
Friday, May 14, 2010
The current issue of U.S. Law Week includes the following stories:
(1) Twombly, Iqbal Introduce More Subjectivity To Rulings on Dismissal Motions, Judge Says (78 U.S.L.W. 2667) reports on a discussion of Twombly and Iqbal that occurred at a recent meeting of the ABA Litigation Section.
(2) Federal Law Includes Permissive Claims Within Supplemental Jurisdiction Definition (78 U.S.L.W. 1699) reports on a recent First Circuit decision (Global NAPs Inc. v. Verizon New England Inc., No. 09-1308, 2010 WL 1713240, 2010 U.S. App. LEXIS 8929) that applies the supplemental jurisdiction statute (28 U.S.C. § 1367) to counterclaims.
Wednesday, May 12, 2010
Readers interested in Supreme Court nominee Elena Kagan's views on civil procedure might want to take a look at her student note: Certifying Classes and Subclasses in Title VII Suits, 99 Harv. L. Rev. 619 (1986). (See SCOTUSblog for a more complete list of her publications.)
General Kagan's note examines the then-prevailing approaches to determining whether an employment discrimination class action under Title VII complies with FRCP 23(a). She concludes:
"Each of the traditional approaches to certification of title VII classes fails to take into account important values. The unity-of-interest approach slights the value of enforcing substantive law; the across-the-board approach neglects the value of observing procedural norms. A proper approach to the certification of title VII classes will attempt to accommodate these values and to mitigate the conflict between them. No perfect reconciliation will be possible: the recognition of the one value will inevitably burden to some degree the other. The task for courts is to find the approach that will best accommodate the values at stake and thereby best protect the rights of victims of discrimination. The subclassification of broad title VII classes provides that approach. Subclassification adequately protects absent class members and yet responds to the classwide and systemic nature of employment discrimination. The technique thus makes the class action device a reliable vehicle for the assertion and vindication of minority rights."
For those interested in what the nominee was like as a civil procedure professor, see this post on Above The Law ("Elena Kagan and Me: One Semester of Civ Pro With the New SCOTUS Nominee").
Monday, May 3, 2010
The New York Times has a piece today profiling Judge Hellerstein. It discusses his background, impressions of his motivations for how he has shaped the 9/11 litigation, and opinions as to the propriety of rejecting the MDL settlement on fairness grounds.
From the article:
The struggle over control of the settlement has underscored two different, but not necessarily contradictory views of the judge: the compassionate jurist driven by a sense of social responsibility and with a wealth of experience with victims’ suffering, and the aggressive judge unwilling to cede ground on cases he has shepherded for years.
Judge Hellerstein lost several former clients in the collapse of the twin towers on 9/11. But legal experts suggest that he has a bigger motivation for championing the ground zero victims: he may see his handling of the 9/11 cases as his legacy.
But lawyers who have sparred with Judge Hellerstein suggest that his moral compass and commitment to doing what he thinks is right have sometimes led him to overreach.
Friday, April 23, 2010
As covered earlier here, an SEC civil action against defendants who were allegedly involved in the Bernie Madoff ponzi scheme was recently dismissed for failing to satisfy federal pleading standards. (See SEC v. Cohmad Securities Corp., No. 09-CV-5680, 2010 WL 363844, 2010 U.S. Dist. LEXIS 8597.)
"[W]e always thought the SEC had it easier than private plaintiffs because it could bring actions against aiders and abetters and didn't have to deal with pleading requirements of the PSLRA. I guess Iqbal somehow levels that playing field, although possibly not in the right direction.
"The Cohmad case seemed to be the easiest case to bring, and maybe it would have been for the DOJ, who operates under different and sometimes easier rules for securities cases than civil rules. Judge Stanton did dismiss without prejudice with leave to replead for 30 days, but that deadline passed over a month ago.
"So, will the Goldman complaint survive the inevitable Motion to Dismiss?"
We'll find out soon enough. No doubt the attorneys for Goldman Sachs and Fabrice Tourre are preparing their 12(b)(6) motions as we speak.
Thursday, April 22, 2010
The BNA reports that Judge Selna of the C.D. California has set an initial conference for May 13 for the cases currently consolidated as In re Toyota Motor Corp. Unintended Acceleration Marketing, Sales Practices, and Products Liability Litigation. The court also made an interim assignment of lead counsel., choosing Steve W. Berman of Hagens Berman Sobol Shapiro in Seattle; Elizabeth J. Cabraser of Lieff Cabraser Heimann & Bernstein in San Francisco; and Marc M. Seltzer of Susman Godfey in Los Angeles for the plaintiffs. Alston & Byrd of Atlanta represent Toyota.
Monday, April 12, 2010
The JPML has ordered a consolidation of more than 200 lawsuits against Toyota before Judge James Selma in the Central District of California. This order combines the personal injury lawsuits with class actions alleging economic damages.
The order is available here.
As I have argued previously in the context of the 9/11 cases and Hurricane Katrina litigation, consolidating these lawsuits around such a loosely defined event, here, the acceleration problems, might not necessarily be the most efficient or just way of handling such mass tort litigation.
Wednesday, April 7, 2010
As summer approaches in a tight job market and our students are becoming increasingly eager to find ways to gain experience and enhance their resumes, this New York Times article, "The Unpaid Intern, Legal or Not," might be of interest. The article considers legal issues associated with unpaid internships for students and recent grads.
"With job openings scarce for young people, the number of unpaid internships has climbed in recent years, leading federal and state regulators to worry that more employers are illegally using such internships for free labor. Convinced that many unpaid internships violate minimum wage laws, officials in Oregon, California and other states have begun investigations and fined employers. . . . Many regulators say that violations are widespread, but that it is unusually hard to mount a major enforcement effort because interns are often afraid to file complaints. Many fear they will become known as troublemakers in their chosen field, endangering their chances with a potential future employer. The Labor Department says it is cracking down on firms that fail to pay interns properly and expanding efforts to educate companies, colleges and students on the law regarding internships."
Friday, April 2, 2010
You're one of these people if you read this week's Shady Grove decision (covered earlier here) in full. So begins yesterday's post The Shady Grove Case: Is Scalia Getting Soft on Plaintiffs? on the WSJ Law Blog. More specifically, Ashby Jones writes:
"Shady Grove Orthopedic Associates v. Allstate Insurance, which the Supreme Court handed down on Wednesday, is one of those opinions you’d only read in full if you are one of the following: 1) a civil procedure professor, 2) an insomniac litigator in hour 15 of a flight to Australia and who cannot bare another look at the SkyMall offerings, 3) a Supreme Court junkie who’s had four too many cans of Red Bull. Why do we say this? Well, it’s about Federal Rule of Civil Procedure 23. It’s also divvied up into about 23 separate opinions, concurrences and dissents."
Tuesday, March 16, 2010
The Blog of the Legal Times is reporting an interesting development on the effort to legislatively overrule the Supreme Court's pleading decisions in Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly (see earlier coverage here, here, here, here, and here). The story Christian Group Joins Campaign on Pleading Standard begins:
"The conservative Alliance Defense Fund is lining up in opposition to a pair of U.S. Supreme Court decisions that changed the standard for filing most civil lawsuits — a move that aligns the Christian litigation group with some unlikely allies."
For a copy of the Alliance Defense Fund's letter to Senate Judiciary Committee Chair Patrick Leahy, see here.
(Hat Tip: How Appealing)
Monday, March 15, 2010
This weekend's New York Times piece Parliamentarian in Role as Health Bill Referee begins with the following story from Alan S. Frumin's law school days:
"To his classmates, one trait stood out. He was a whiz at mastering the mind-numbing rules of civil procedure. Today, Mr. Frumin puts his procedural acumen to use as the parliamentarian of the United States Senate."
(Hat Tip: Suzanna Sherry)
Friday, March 12, 2010
The SEC's civil action against defendants allegedly involved in the Madoff ponzi scheme ran up against federal pleading standards in a recent decision from the Southern District of New York. The case is SEC v. Cohmad Securities Corp., No. 09-CV-5680, and docket information is available here. Judge Stanton's decision is at 2010 WL 363844 or 2010 U.S. Dist. LEXIS 8597. Here are some excerpts:
"[N]owhere does the complaint allege any fact that would have put defendants on notice of Madoff's fraud. Rather, the complaint supports the reasonable inference that Madoff fooled the defendants as he did individual investors, financial institutions, and regulators.
. . .
[T]he SEC has failed to allege facts giving rise to a plausible inference of the Cohns' or Jaffe's fraudulent intent, and the securities fraud claims against them are dismissed. Since the SEC has failed to plead the Cohns' or Jaffe's fraudulent intent (and it does not argue that Madoff's intent can be imputed to Cohmad), the securities fraud claims against Cohmad are dismissed as well."
The SEC was granted leave to replead.
(Hat Tip: Paul Stancil)
Monday, March 1, 2010
With the Oscars coming up, it's a great time to check out the Bora Laskin Law Library's fantastic list of movies related to our favorite topics: civil procedure and federal courts. You might also find some good law flicks in the book "Reel Justice: The Courtroom Goes to the Movies" by Paul Bergman and Michael Asimow.
Tuesday, December 22, 2009
While the Senate was wrestling with health care reform last week, the House turned once again to whether and how to legislatively overrule Iqbal. (For coverage of previous hearings in the House and Senate, see here, here, here, and here.)
On December 16, the House Judiciary Committee's Subcommittee on Courts and Competition Policy held a hearing on H.R. 4115, the "Open Access to the Courts Act of 2009." The Judiciary Committee's website is here, and a video webcast is available here.
Below is the witnesses list and links to their testimony:
Hon. Jerrold Nadler
U.S. House Representatives
8th District, NY
Professor of Law
University of Washington School of Law
Gregory G. Katsas
Director of Financial Regulation Studies
Former Assistant Attorney General, Civil Division
U.S. Department of Justice
Jonathan L. Rubin
Patton Boggs, LLP
Joshua P. Davis
Professor Center for Law and Ethics
University of San Francisco School of Law
Saturday, December 12, 2009
This past October, Britain's new Supreme Court kicked off its first term. In the past, the UK's highest court was a group of "law lords" who were actually part of Parliament. However, beginning on October 1, 2009, under the Constitutional Reform Act of 2005, the court was removed from Parliament and a new, independent Supreme Court was created.