Monday, November 30, 2009

Cert. grant in Morrison v. National Australia Bank: Is there federal subject-matter jurisdiction over "foreign-cubed" securities class action?

Today the Supreme Court granted certiorari in Morrison v. National Australia Bank Ltd. (08-1191). The questions presented are:

1) Do anti-fraud provisions of U.S. securities laws extend to transnational frauds when (a) foreign-based parent company conducted substantial business in United States, its American Depository Receipts were traded on New York Stock Exchange, and its financial statements were filed with Securities and Exchange Commission, and (b) claims arose from massive accounting fraud perpetrated by American citizens at parent company's Florida-based subsidiary and were merely reported from overseas in parent company's financial statements?

(2) Should this court, which has never addressed issue of whether subject matter jurisdiction may extend to claims involving transnational securities fraud, set forth policy to resolve three-way conflict among circuits (i.e., District of Columbia Circuit versus Second, Fifth, and Seventh Circuits versus Third, Eighth, and Ninth Circuits)?

(3) Should Second Circuit have adopted SEC's proposed standard for determining proper exercise of subject matter jurisdiction in transnational securities fraud cases, as set forth in SEC's amicus brief submitted at request of Second Circuit, and should Second Circuit have adopted SEC's finding that subject matter jurisdiction exists here due to "material and substantial conduct in furtherance of" securities fraud that occurred in United States?

The docket is here, and the Second Circuit's decision is at 547 F.3d 167. SCOTUSblog's coverage is here and here.

(Hat Tip: BNA’s Supreme Court Today)


November 30, 2009 in Class Actions, Federal Courts, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0) | TrackBack (0)

Long -- Against Certification

Justin R. Long (University of Connecticut School of Law) has posted Against Certification to SSRN.

Certification is the process whereby federal courts, confronted by an open question of state law in federal litigation, ask the relevant state high court to decide the state law question. If the state high court chooses to answer, its statement of state law stands as the definitive declaration of the law on the disputed point. The case then returns to the certifying federal court, which resolves any remaining issues, including federal questions, and then issues a mandate. Although a wide range of academic commentators and jurists support certification as an example of respect for state autonomy, this Article shows that in both practice and theory certification does not reflect real comity. Rather, certification is an example of 'dual federalism,' the view that state and federal law ought to be isolated into separate spheres of jurisprudence. For federal courts to show genuine respect for state law, they should stop treating it as foreign and decide open state law questions without certification.


November 30, 2009 in Federal Courts, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Supreme Court hears argument on Statute of Limitations

The Supreme Court is hearing oral arguments today in Merck & Co., Inc. v. Richard Reynolds, which raises thee question of when a statute of limitations begins to run on a federal securities fraud claim. The case will resolve a dispute among the circuits as to when an investor has "inquiry notice" of federal securities fraud, as would trigger the running of the statute of limitations.

The statute of limitations issue arises from a class action by Merck shareholders who alleged that Merck officers and directors misrepresented facts about the drug Vioxx.  Merck argues that the shareholders' suit is time-barred because investors were put on "inquiry notice" more than two years prior to the filing date by an FDA Warning Letter accusing Merck of deceptive and misleading conduct regarding the safety of Vioxx.

The SCOTUS Blog's argument preview is here.

The SCOTUS Wiki page is here, and includes links to the documents filed in the case.


November 30, 2009 in Federal Courts, Supreme Court Cases | Permalink | Comments (0) | TrackBack (0)

Sunday, November 29, 2009

Ninth Circuit upholds forum non conveniens dismissal

Vivendi S.A. v. T-Mobile USA, Inc. (2009 WL 3525855) involved a French company suing a German corporation and a Polish corporation on a RICO cause of action.  The district judge granted T-Mobile's motion to dismiss on grounds of forum non conveniens.

The Ninth Circuit recently upheld that decision (2009 WL 3525855), finding that Poland was an acceptable alternative forum, and that the private and public factors favored dismissal.


November 29, 2009 in Recent Decisions | Permalink | Comments (0) | TrackBack (0)

Saturday, November 28, 2009

Craig on Political Constitutionalism and Judicial Review

Professor Paul P. Craig (University of Oxford Faculty of Law) has posted "Political Constitutionalism and Judicial Review" on SSRN.  It will be published in Effective Judicial Review: A Cornerstone of Good Governance (C. Forsyth, M. Elliott, S. Jhaveri, A. Scully-Hill, M. Ramsden, eds.).

The abstract states:

The principal academic challenge to the legitimacy of judicial review is presently the work of political constitutionalists. Their main focus hitherto has been constitutional review, but there is now also literature challenging non-constitutional review, which is explored in this paper. The structure of the argument is as follows. In part one the political constitutionalist argument against constitutional review is considered. I do not claim to add to the sophisticated literature on this issue, but its relevance to the Human Rights Act 1998 will be considered. The implications of political constitutionalism for judicial review in administrative law are however much less well-developed. Thus parts two and three critically assess what are termed the radical and moderate view of political constitutionalism. In part four legal constitutionalism is revisited and a moderate view thereof is presented that best captures the legitimacy of judicial review in administrative law, and provides a balanced account of the inter-relationship of courts and the political process in delivering accountable government. In part five the relationship between legal and political constitutionalism is clarified, while part six addresses some of the broader criticisms of legal constitutionalism in the light of the moderate version thereof presented in this paper.


November 28, 2009 in International/Comparative Law, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, November 27, 2009

Over 100,000 Served

This week our blog-traffic meter eclipsed the 100,000 mark (since February 19, 2007). Thank you, readers!

November 27, 2009 in Weblogs | Permalink | Comments (0) | TrackBack (0)

Senate Judiciary Committee Hearing on Iqbal

Next week's activities on Capitol Hill include a hearing before the full Senate Judiciary Committee entitled "Has the Supreme Court Limited Americans' Access to Courts?" It's scheduled for Wednesday, December 2 at 10:00 a.m. in Room 226 of the Dirksen Senate Office Building.

More information is available here (including a link for a webcast). Here's the witness list:

John Payton
President and Director-Counsel
NAACP Legal Defense Fund
Washington, D.C.

Gregory G. Garre
Latham & Watkins, LLP
Washington, D.C.

Stephen B. Burbank
David Berger Professor for the Administration of Justice
University of Pennsylvania Law School
Philadelphia, Pennsylvania


November 27, 2009 in Current Affairs, Federal Rules of Civil Procedure, Twombly/Iqbal | Permalink | Comments (0) | TrackBack (0)

Thursday, November 26, 2009

NY Times Editorial on the importance of funding state courts

The New York Times has run an editorial about the importance of state courts, writing that "[t]his vital institution — constitutionally, an independent, co-equal branch of government — has been spiraling into crisis as cash-starved states struggle with huge deficits."

Happy Thanksgiving, dear readers.


November 26, 2009 in In the News, State Courts | Permalink | Comments (0) | TrackBack (0)

Call for Papers: Iqbal Symposium

Penn State, Dickinson School of Law has issued this call for papers in connection with a March 26, 2010 symposium on "Reflections on Iqbal--Discerning Its Rule, Grappling With Its Implications":

Call for Papers

Symposium: Reflections on Iqbal—Discerning Its Rule, Grappling With Its Implications

Penn State Law Review

Penn State University, Dickinson School of Law

On Friday, March 26, 2010, the Penn State Law Review will hold a symposium addressing the Supreme Court's recent decision in Ashcroft v. Iqbal.  The symposium is entitled Reflections on Iqbal—Discerning Its Rule, Grappling With Its Implications and will feature panels addressing the following topics:

·         Iqbal's implications for the role of the courts and judges in providing American society with both the opportunity for redress of harms and a common law-based approach to the development of law. 
·         The majority's reference to purposeful discrimination and what it signals about contemporary understandings of race in America.
·         Iqbal's implications for constitutional tort litigation, including the decision's potential impact on supervisory liability, qualified immunity, and the behavior of agency officials operating under adverse conditions. 

Presenters currently include: Hon. Anthony Scirica (Chief Judge, Third Circuit), Hon. D. Brooks Smith (Third Circuit), Mark Brown (Capital), Ray Campbell (Penn State), Gary Gildin (Penn State), Ramzi Kassem (CUNY), Kit Kinports (Penn State), Jim Pfander (Northwestern), Jeff Rachlinski (Cornell), Victor Romero (Penn State), Natsu Saito (Georgia State), Jean Sternlight (UNLV), Shoba Wadhia (Penn State), and Nancy Welsh (Penn State).  Presented papers will be published in a Symposium Issue of the Penn State Law Review.  Brief abstracts of the papers will be posted on the LawReview’s online companion, Penn Statim, by December 16, 2009. 

The Penn State Law Review issues this Call for Papers for submissions regarding Iqbal and particularly invites submissions regarding the topics to be covered at the Iqbal symposium and responding to the abstracts that will be posted on Penn Statim.  Submissions will be accepted, however, that are grounded in other areas of law relevant to understanding the reasoning in Iqbal (e.g., security, employment, antitrust, etc.), as well as other academic disciplines.  Papers submitted in response to this Call should be of essay length and type and should be no longer than 5,000 words, including footnotes.  Through its online companion, the Penn State Law Review hopes to encourage and host a scholarly online dialogue regarding Iqbal and its implications.  Therefore, after conducting an editorial review process, the Penn Statim will select and begin posting papers on December 17, 2009, with selections and postings to continue on an ongoing basis.  At least one of the papers submitted in response to this Call will be selected for hard-copy publication in the Summer Issue of the Penn State Law Review.  The author of any paper selected for such hard-copy publication will be invited (but not required) to expand upon his or her essay-length piece. 

The deadline for submissions in response to this Call is Friday, April 16, 2010.  All submissions must be sent to [email protected].  All submissions must be in English and comply with Bluebook formatting rules.  Penn Statim is available at

[Hat Tip: Nancy Welsh] 


November 26, 2009 in Conferences/Symposia, Twombly/Iqbal | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 25, 2009

South Africa to Create Special World Cup Courts

The BBC reports that South Africa is creating special courts to deal with crime during the World Cup.  The purpose of the courts is to allow visitors to testify even though they will be in the country for a short time.  The theory is that "fast tracking" crimes committed during the World Cup will act as an extra deterrent.

The 54 courts will operate in the nine World Cup cities and judges, lawyers and volunteers will receive special training.


November 25, 2009 in In the News, International Courts, International/Comparative Law | Permalink | Comments (0) | TrackBack (0)

Issacharoff & Klonoff on The Public Value of Settlement

Professor Samuel Issacharoff (NYU School of Law) and Dean Robert H. Klonoff (Lewis & Clark Law School) have posted "The Public Value of Settlement" on SSRN.  This paper will be published in the Fordham Law Review.

The abstract states:

This article, part of a symposium honoring the 25th anniversary of Owen Fiss’s Against Settlement, takes issue with the basic premise that settlement indicates defeat of the weak by the powerful, the poor by the rich, the injured by the wrongdoers. The argument is both empirical and normative. On the empirical side, this article challenges the basic claim advanced by Fiss and Marc Galanter that repeat players in the courts of justice are more likely to prevail because they will marshal and deploy greater resources. Over the past quarter century, the emergence of the well-heeled plaintiffs’ firm together with referral and other market organizing practices have allowed plaintiffs to fight and defeat institutional defendants across all sorts of mass harm cases. Normatively, this article challenges the assumption that the driving organizational framework of the court system should be derived from the structural injunction that characterized an episodic phase of the civil rights movement. Instead, resolution of mass harms has been and continues to be one of the great challenges of the judicial system, a process for which settlement is a critical and likely inescapable component.


November 25, 2009 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, November 23, 2009

Gilles on Judicial Hostility to Small-Claims Consumer Class Actions

Myriam E. Gilles (Cardozo Law School) has posted Class Dismissed: Contemporary Judicial Hostility to Small-Claims Consumer Class Actions to SSRN.

I start from the view that small-value consumer claims are a primary reason that class actions exist, and that without class actions many - if not most - of the wrongs perpetrated upon small-claims consumers would not be capable of redress. It would then seem to follow that the class action device should be readily available in small-claims consumer cases. And yet, over the past decade, federal district courts have repeatedly declined to certify class actions on grounds that are specific to small-claims consumer cases. Foremost among those grounds is the notion that the federal class action rule carries within it an implicit requirement of “ascertainability.” More specifically, courts have held that in order to certify a class, the identity of class members must be sufficiently ascertainable to ensure the efficacy of a subsequent distribution of damages. In practice, what this shadow standard of ascertainability has come to mean is that no matter how clear the evidence of wrongdoing, plaintiffs have no redress in the typical consumer case involving small retail transactions. This article examines the ascertainability doctrine as it is developing in the courts, and shows that the traditional goals of class actions - deterrence and compensation - cannot plausibly be said to animate this new certification requirement. Indeed, the ascertainability requirement readily sacrifices both deterrence and compensation in favor of an alternative value, namely, ensuring that compensation does not flow to uninjured parties. I end with a first-round effort to understand what really may be animating the ascertainability doctrine, suggesting that the explanation lies in a conception of class actions that is based on a private law model - i.e., a conception that demands unity among the injured parties, the prosecutors of civil actions, and the beneficiaries of remedies. Future work will seek to tease out the normative underpinnings of this private law model.


November 23, 2009 in Class Actions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Now in Congress: The Federal Courts Jurisdiction and Venue Clarification Act

H.R. 4113 was introduced last week in the U.S. House of Representatives. It would amend sections of the U.S. Code dealing with:

  • Diversity jurisdiction (28 U.S.C. 1332)

  • Removal and remand (28 U.S.C. 1441 & 1446)

  • Venue (revisions to 28 U.S.C. 1391, the deletion of 28 U.S.C. 1392, and the creation of a new 28 U.S.C. 1390)

  • Transfer of venue (28 U.S.C. 1404 & 1406)

Here is the table of contents:

Sec. 101. Treatment of resident aliens.
Sec. 102. Citizenship of corporations and insurance companies with foreign contacts.
Sec. 103. Indexing the amount in controversy.
Sec. 104. Facilitating use of declarations to specify damages.
Sec. 105. Removal and remand procedures.
Sec. 106. Effective date.

Sec. 201. Scope and definitions.
Sec. 202. Venue generally.
Sec. 203. Repeal of section 1392.
Sec. 204. Change of venue.
Sec. 205. Cure or waiver of defects.
Sec. 206. Effective date.

For more information, see the Library of Congress's website here. The full text of the bill is available here (.xml format) or here (.pdf format)

(Hat Tips: Kevin Clermont & Jim Pfander)


November 23, 2009 in Federal Courts, In the News, Subject Matter Jurisdiction | Permalink | Comments (0) | TrackBack (0)

Bulto on Judicial Referral of Constitutional Disputes in Ethiopia

Takele Soboka Bulto (Melbourne Law School, The University of Melbourne) has posted "Judicial Referral of Constitutional Disputes in Ethiopia" on SSRN.  It will be published as part of "Constitutionalism and the Rule of Law in Ethiopia: Challenges and Opportunities," the editors of which are Assefa Fiseha and Getachew Assefa.

The abstract states:

The trend of swift and at times unquestioning judicial referral of constitutional disputes to the CCI has seemingly bordered judicial surrender of its proper province of refereeing the possible trespasses and frictions by the legislative and executive branches. The underlying reasons, real or apparent, are many and varied but two deserve an explicit mention here as they lie at the heart of jurisdictional dilemmas surrounding the procedure of judicial referral of constitutional issues to the CCI/HoF. The first is the legal argument arising from the provisions of Article 83(1) of the Constitution, which stipulates that ‘all constitutional disputes’ shall be decided by the HoF. This provision has given rise to the view, in judicial circles and beyond, that courts are relived of the duty to interpret and apply constitutional provisions. Thus it is believed that the constitution is taken away from the courts, and that for the regular judiciary to directly apply and interpret the constitution would tantamount to the courts ‘punching above their heights.’ Consequently, the regular courts have been ‘loathe doing anything which might indicate that they are engaged in constitutional interpretation.’ Another reason for judicial avoidance of constitutional adjudication is related to the judicial tendency to shun cases that involve politically sensitive issues which, more often than not, constitutional disputes tend to trigger. The overall consequence has been that litigants, as much as the courts, have avoided citing constitutional provisions for fear of risking judicial referral of their cases to the CCI/HoF. 

This paper sets out to depict that the constitution speaks with two voices: the main voice remains that of the regular courts while merely the residual powers are ceded to the CCI/HoF procedures. It is argued that judicial referral of constitutional issues is discretionary as opposed to mandatory, and that the procedure of referral pertains solely to questions of law as opposed to questions of fact, the latter being the court’s constitutional duty.


November 23, 2009 in International Courts, International/Comparative Law, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Saturday, November 21, 2009

O'Hara & Ribstein on Conflict of Laws and Choice of Law

Professor Erin A. O'Hara (Vanderbilt University School of Law; Gruter Institute for Law and Behavioral Research) and Professor Larry E. Ribstein (University of Illinois College of Law) have posted "Conflict of Law and Choice of Law" on SSRN as part of the Working Paper Series.

The abstract states:

In this revised entry for a new edition of Elgar’s Encyclopedia of Law and Economics we discuss the law and economics of conflict of laws and choice of law, focusing on the law in the US. We first consider choice of law when the parties have not effectively chosen their governing law by contract. We address four questions: (1) Why do courts ever apply anything other than the law of the forum? (2) If a court sometimes applies foreign law, is a rule-based or more modern standard-based approach to its choice preferable? (3) Why have so many states abandoned rule-based approaches in favor of standard-based ones? and (4) Is there any real practical difference between the First Restatement and modern approaches? We then discuss costs and benefits of enforcing parties’ contractual choice of law provisions. We conclude that permitting parties to choose the governing law that best fits their transactions and future private disputes can enhance jurisdictional competition and help restore predictability to the conflict of laws problem. When states nevertheless wish to insist on the application of their own governing law, they should state that explicitly in statutes.


November 21, 2009 in International/Comparative Law, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, November 20, 2009

Seinfeld on Article III and the Limits of Enumeration

Professor Gil Seinfeld (Michigan) has posted on SSRN his article, Article I, Article III, and the Limits of Enumeration, which will be published in the Michigan Law Review. Here's the abstract:

Article I, § 8 and Article III, § 2 of the U.S. Constitution deploy parallel strategies for constraining the power of the federal government. They enumerate powers that the national legislature and judiciary, respectively, are permitted to exercise and thereby implicitly prohibit these two branches of government from exercising powers not enumerated. According to conventional thinking, this strategy has failed in connection with Article I and succeeded in connection with Article III. That is, it is widely acknowledged that Congress routinely exercises powers that are difficult to square with the Article I enumeration; but it is commonly thought that the subject matter jurisdiction of the federal courts is, in fact, limited to the nine categories of cases specified in Article III, § 2. If one examines the crucial cases governing the constitutional limits on federal court jurisdiction, however, it becomes apparent that the enumeration in Article III, § 2, like its cousin in Article I, does little work when it comes to reining in federal power. This is reflected most dramatically in the fact that the Supreme Court has never struck down a federal statute on the ground that it confers jurisdiction on the federal courts in cases lying outside the enumeration in Article III. Instead, over the years, Congress has enacted numerous jurisdictional statutes that push hard on the limits specified in Article III, § 2, and the Justices have consistently found ways — through a series of highly tendentious interpretive moves — to avoid deeming these provisions unconstitutional. This article explores the similarity of our practice under Articles I and III. It seeks to demonstrate, in particular, that despite the strict enumeration rhetoric that pervades the case law and scholarly commentary relating to federal court jurisdiction, the Supreme Court has shown little interest in keeping the federal courts within the subject matter limits of Article III, § 2.


November 20, 2009 in Federal Courts, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, November 19, 2009

Michelman on standing to sue over government surveillance

Scott Michelman (American Civil Liberties Union) has posted Who Can Sue Over Government Surveillanc to SSRN.
The nature and scope of new government electronic surveillance programs in the aftermath of September 11 have presented acute constitutional questions about executive authority, the Fourth Amendment, and the separation of powers. But legal challenges to these new surveillance programs have been stymied — and decisions on the merits of core constitutional questions avoided — by court rulings that the challengers lack standing to sue under the Supreme Court’s 1972 decision in Laird v. Tatum. Last year, Congress amended the law governing foreign intelligence surveillance; the law has been challenged in court, and once again the issue of the challengers’ standing is at the heart of the case. In light of the fundamental civil liberties and separation of powers questions that remain unanswered, it is vital to identify who, if anyone, has standing to challenge government surveillance. Unfortunately, the law of standing in the surveillance context remains murky and in important respects appears out of line with the larger body of standing jurisprudence. In some cases, courts impose on surveillance plaintiffs a stricter test for probabilistic injuries than exists in the rest of standing law; in other cases, courts do not recognize as injuries the significant chilling effects a broad and secretive surveillance program can create. This Article argues that the divergent strands of jurisprudence interpreting Laird can be synthesized with general principles of standing law into a coherent and workable doctrine that will open the courthouse doors just wide enough to permit courts to adjudicate the crucial constitutional questions presented by new and emerging regimes of government surveillance.


November 19, 2009 in Current Affairs, Federal Courts, Recent Decisions | Permalink | Comments (0) | TrackBack (0)

Pether on Constitutional Solipsism

Professor Penelope Pether (Villanova University School of Law) has published "Constitutional Solipsism: Toward a Thick Doctrine of Article III Duty; or Why the Federal Circuits' Nonprecedential Status Rules are (Profoundly) Unconstitutional" on SSRN. The article will be published in the William & Mary Bill of Rights Journal.


Constitutional Solipsism is the fourth in a series of articles on aspects of the private judging practices which have come to characterize the U.S. state and federal courts since the late 1950s. The first, Inequitable Injunctions: The Scandal of Private Judging in the U.S. Courts, 56 STAN. L. REV. 1435 (2004) gave a critical historical account of the development of the “practices of private judging” in U.S. Courts. Take a Letter, Your Honor: Outing the Judicial Epistemology of Hart v. Massanari, 62 WASH. & LEE L. REV. 1553 (2005), analyzed the development of a distinctive U.S. theory of precedent. Sorcerers, Not Apprentices: How Judicial Clerks and Staff Attorneys Impoverish U.S. Law, 39 ARIZ. ST. L.J. 1 (2007), documented the de facto delegation of the majority of Article III judicial power to inadequately supervised non-judicial actors, and the origins of nonprecedential status rules in the federal bench’s mistrust of the accuracy of the judging done in its name. 

Constitutional Solipsism takes up the repeated suggestions by federal courts and organs of the Federal Judicial Conference that the circuits’ ubiquitous nonprecedential status rules are unconstitutional. Mapping, analyzing, and substantially supplementing scattered, thin, and inconclusive scholarly analyses, largely published in the wake of the decision in Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000), vacated en banc as moot, 235 F.3d 1054 (8th Cir. 2000), it is the first comprehensive analysis of the constitutionality question. In addition to considering previously unexplored yet salient constitutional doctrine, including the “fundamental interests” jurisprudence articulating the constitutional right of access to the courts, and non-delegation doctrine, the Article departs from predecessor scholarship by considering the rules in the contexts that they justify and enable: the delegation of Article III power to inadequately supervised adjuncts, and the abbreviated adjudicatory processes that arguably deny plenary appeals to the majority of federal appellants, substituting an unsafe certiorari process for appeals as of right. 

Relying principally on a critical reading of the leading inherent Article III power cases and authority on the powers “essential to the administration of justice,” and the constitutional logic of bodies of doctrine including fundamental interests and non-delegation doctrine, as well as on the limits on the circuits’ formal rulemaking power, Constitutional Solipsism concludes that the rules and the practices that underpin them are profoundly unconstitutional, because ultra vires Article III power. It goes on to argue both that the constitutional solipsism that characterizes the courts’ inherent power jurisprudence and their judging practices calls for a thick constitutionalist doctrine of judicial duty, and not just of power; and that the most recent developments in “post-9/11 constitutional” jurisprudence suggest the ripeness of such a doctrine.


November 19, 2009 in Federal Courts, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 18, 2009

Thomas on the standard for motions to dismiss after Iqbal and Twombly

Professor Suja A. Thomas (University of Illinois College of Law) posted "The New Summary Judgment Motion:  The Motion to Dismiss Under Iqbal and Twombly" on SSRN as part of the Working Paper Series.

The abstract states:

Civil procedure scholars have extensively discussed the new 12(b)(6) standard articulated by the Supreme Court in Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly. In this discourse, however, an interesting development has not been explored. The standard for the motion to dismiss has evolved in such a way as to make the motion to dismiss the new summary judgment motion. Despite different words in Federal Rules of Civil Procedure 12(b)(6) and 56 and no discovery before dismissal under 12(b)(6), the new 12(b)(6) dismissal standard now tracks the standard for summary judgment. Moreover, the motion to dismiss under the new summary judgment-like standard may have effects similar to those experienced under summary judgment, including a significant use of the procedure by courts, a related increased role for judges in litigation and a corresponding increased dismissal of employment discrimination cases. This essay describes the similarities between the motion to dismiss and the motion for summary judgment, and also explains how, as a result of these similarities, Swierkiewicz v. Sorema may no longer be good law. This essay further proposes that differences between the motions, including discovery, cost and the role of the courts, call into question the propriety of the changes under Iqbal and Twombly.


November 18, 2009 in Federal Rules of Civil Procedure, Recent Scholarship, Twombly/Iqbal | Permalink | Comments (0) | TrackBack (0)

Pimentel P.S. -- and an update!

Last year, the Supreme Court decided the case of Republic of Philippines v. Pimentel, 128 S. Ct. 2180 (2008) in which it held that the government of the Philippines and a government entity were necessary parties to an interpleader action.  Merrill Lynch had filed the action regarding assets that it held from a shell corporation that Ferdinand Marcos had set up to hide money during his reign as president of the Philippines.  The government entities were unavailable due to sovereign immunity, and the Supreme Court held that the case should be dismissed under Rule 19(b) because it could not proceed without these parties.

The case provided fresh material to anyone teaching mandatory joinder of parties, interpleader, or the FSIA.  And although the Supreme Court might have spoken, the fight over the money continues, the Associated Press reports that the Ninth Circuit has "rebuked" the district judge who was handling the assets for Merrill Lynch, accusing him of lax oversight.

There have also been developments at the state court level (H/T Kevin Clermont).  Some of the human rights judgment claimants have filed a petition in New York state court to enforce the judgment and have Merrill Lynch turn over the Arelma assets.  The Philippine National Bank and Arelma moved to intervene, and then to dismiss the complaint because the Republic and the Commission were not joined.  In a November 6, 2009 opinion (available here: Download 09-104734 decision seq. 02), the NY trial judge granted the intervention but refused to dismiss the case because the governmental parties were not joined. 

The opinion is interesting on a few fronts.  First, the question of mandatory joinder of parties proceeds somewhat differently under the CPLR, as the question relates to the provisions for turnover of assets and enforcement of judgments, rather than a specific rule that addresses mandatory joinder of parties.  It contains a res judicata issue concerning the U.S. Supreme Court's ruling on the Rule 19 joinder issue.  Second, it addresses two changed circumstances since the Supreme Court decision, (1) that the Philippino court has found that the assets should revert to the government of the Philippines (although judgment is not final; and (2) The government of the Philippines has waived sovereign immunity in a similar action in Singapore, indicating a willingness to waive sovereign immunity under certain circumstances.  The trial judge then held that the action should continue without the government parties.  It also ruled that the judgment from the District of Hawaii had not lapsed.

All in all, a virtual treasure trove of procedural issues from federal and state courts. 

I guess that the Marcos family is the gift that keeps on giving.


November 18, 2009 in Federal Courts, In the News, Recent Decisions | Permalink | Comments (0) | TrackBack (0)