February 4, 2010

Around the web, February 4

• DOT-'n'-GM Secretary LaHood: Did I say to stop driving Toyotas? Naughty me [Bloomberg, Business Insider, Hodak Value, earlier and more]
• Penn State is doing an Iqbal/Twombly symposium next month [Workplace Prof]
• Plaintiff's prior back injury no bar to sustaining of Bronx jury's $1.5 million award for subway slip [Hochfelder]
• Oklahoma AG Edmondson: Don't blame me for setting up my lawyer friends in chicken farm case, courts threw out the theories on which they'd have gotten rich [Muskogee Phoenix]
• Advocates push for "workplace bullying" law in Massachusetts [Fox]
• Messy divorce between class-actioneer Michael Hausfeld and his former firm, Cohen Milstein [ABA Journal, Hallman, AmLaw Litigation Daily]

January 22, 2010

Eighth Circuit goes on joinder bender

James Beck thinks the court erred in failing to order separation of an unpersuasively clumped set of Prempro mass tort cases.

January 20, 2010

The perils of process-manipulation

At Commentary, John Steele Gordon notes that Massachusetts Democrats tinkered with the procedures for filling U.S. Senate vacancies not once but twice in the unprincipled pursuit of short-term political advantage. At least one of these changes, and arguably both, wound up backfiring on them. You'd think there must be some lesson here, wouldn't you?

P.S. And David Frum points out that on the subject of the Senate filibuster, for similar reasons, some on the conservative side come off in a less than favorable light.

January 17, 2010

How to get bounced on peremptories

Prospective jurors, listen up: if you want to get out of serving you should try to give "correct" answers in voir dire, the kind that don't result in a for-cause removal, but do it with folded arms and a scowling expression [Turkewitz]

"Does the Twombly-Iqbal Pleading Standard Apply to Defenses Too?"

Sean Wajert looks at the cases.

January 11, 2010

Trial lawyers association outlines its 2010 legislative agenda

The American Association of Justice sponsored a media briefing today to outline its 2010 legislative agenda. The headline on the news release, "2010 Dawning of New 'Decade of Corporate Accountability'."

Judging by President Anthony Tarricone's quote, the AAJ is still campaigning against the Bush Administration: "During the last decade, we saw a dismantling of regulations and our legal system for the benefit of big corporations and to the severe detriment of patients and consumers." More hyperbole follows. The goals highlighted:

• A restoration of notice pleadings, i.e., legislation to reverse the Iqbal and Twombly decisions.
  
• Passage of the Medical Device Safety Act to expand litigation against FDA-approved devices to state courts.
  
• Elimination of arbitration clauses in consumer contracts.
  
• "Protecting patients injured by medical negligence," or as we'd put it, no medical liability reform.
  
• Passage of the Foreign Manufacturers Legal Accountability Act (S. 1606) to provide more effective procedures for bringing overseas companies into U.S. courts.

The only coverage we've seen of the event comes from the Blog of the Legal Times, which focuses on the arbitration angle, "Next Target for Plaintiffs Bar: Nursing Homes?"

UPDATE (Tuesday): Also covering the event was The Hill, "Trial bar tries to end 'forced arbitration'." The Chamber-backed Legal Newsline wrote, "Trial bar seeks to expand liability, end arbitration clauses."

January 6, 2010

A Twombly/Iqbal debate -- and the harms of liberal pleading

James Beck (assisted by Mark Herrmann) goes up against liberal proceduralist Stephen Burbank in a multi-round debate (PDF) at Penn Law's PENNumbra, and survives to tell the tale. A brief excerpt from their first post (most citations omitted):

...In 1955, the Advisory Committee rejected an amendment to Rule 8(a)(2) that would have required plaintiffs to state "facts constituting a cause of action." It did so not to endorse fact-free pleading, but rather because the Committee already viewed existing Rule 8(a)(2) as requiring "the pleader to disclose adequate information as the basis of his claim for relief as distinguished from a bare averment that he wants relief and is entitled to it."

In 1957, the Supreme Court weighed in, offering in Conley v. Gibson, 355 U.S. 41 (1957), an extremely liberal interpretation of Rule 8. Conley contained dictum that a complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." This phrasing invited abuse, since hypothetical "set[s] of facts" not even pleaded could prevent dismissal. Taken literally, the Conley dictum could make it impossible for a defendant to win a motion to dismiss, thus rendering Federal Rule of Civil Procedure 12 a nullity.

Some courts declined to read Conley literally and continued to hold "that legal conclusions need not be accepted as true on 12(b)(6) motions" and "that pleaders are not entitled to unreasonable factual inferences." Edward A. Hartnett, Taming Twombly, 158 U. Pa. L. Rev. (forthcoming 2010) (manuscript at 16), available at http://ssrn.com/abstract=1452875. They continued to dismiss complaints that plainly lacked merit. ...

They cite the bone screw mass tort litigation as one in which parallel actions were brought before two federal judges, one of whom dismissed the action as based upon implausible pleadings, the other of whom waved it forward. The second case inflicted millions of dollars in costs on defendants who included blameless doctors and their families before eventually being dismissed on summary judgment.

January 5, 2010

"EU Data Protection Meets U.S. Discovery"

European data-privacy laws run head on into that massive assault on privacy known as our litigation discovery process. [NYLJ]

December 29, 2009

Does adoption of a novel liability theory reset the statute of limitations?

Jim Beck (Drug & Device Law) and Bruce Nye (Cal Biz Lit) exchange views on an unpublished federal case in which California's liberal methods of "John Doe pleading" turned out to make the difference.

Around the web, December 29

• Dramatic development in much-reported "whistleblower" case: "Lawyer Sees No Smoking Gun in Toyota Files" [The Recorder] Maybe the L.A. Times went out on a limb in supporting the plaintiffs' case?
• Purported "sweatshop" protest win has little to do with any actual sweatshops [Charlotte Allen, Minding the Campus; my take on the issue some time back]
• "Corporate claim finance" firm weighs in on class action funding debate [Juridica, Fox Business, via Legal Ethics Forum]
• "Daughter Awarded $3 Million After Death of Mother Who Had Do-Not-Resuscitate Order" [Fulton County Daily Report]
• More warnings re: new Medicare notification rules on injury claims [Emily Grande, Food Liability Law]
  
• Public Nuisance Wire covers Iqbal pleading controversy [first, second, third posts]