Prof. Wolff Posts Article on Federal Jurisdiction, Due Process, and Nationwide Class Actions

Professor Tobias Barrington Wolff (Penn) has posted an Article entitled Federal Jurisdiction and Due Process in the Era of the Nationwide Class Action on SSRN. Here is the Abstract:

The class action has come of age in America. With increasing regularity, class litigation plays a central role in discussions about theory, doctrine, and policy in the American civil justice system. The dynamics of the class action lie at the heart of current debates over the nature of the litigation process and the limits of adjudication in effectuating social policy. Choice of law analysis has enjoyed a renaissance as its significance to the question of class certification has become apparent. Class litigation now frequently drives debates over tort reform and the phenomenon of regulation through litigation. In these and many other respects, we have entered a new dispensation: the era of the nationwide class action. The passage of the Class Action Fairness Act of 2005 (CAFA) aptly serves to punctuate that arrival.

The class action's ascendance to center stage, however, has not always been accompanied by the development of a sophisticated doctrinal and analytical apparatus that is adequate for its needs. This is particularly the case in the two important areas that will be my primary focus in this Article: the analysis of the content and impact of federal jurisdictional policy when parallel class actions are filed in state and federal courts, and the due process standards that govern the various aspects of representative litigation. In the former case, much of the discussion among courts and commentators has been mired for too long in forms of analysis that are inapposite and inadequate. In the latter, the discussion has been riddled with outright mistakes and misunderstanding. The enactment of CAFA offers an important occasion for revisiting our treatment of these vital questions of federal jurisdictional policy and due process in representative litigation. This Article undertakes that task.

The full-text version of this Article may be downloaded by visiting http://ssrn.com/abstract=1156023.

Prof. Effron Posts Article on Disaster-Specific Methods for Consolidation

Professor Robin Effron (Brooklyn) has recently posted an Article entitled Disaster-Specific Mechanisms for Consolidation on SSRN. Here is the Abstract:

Within the past decade, two large scale catastrophes - the terrorist attacks of September 11, 2001 and Hurricanes Katrina and Rita - have been the recent laboratories of new congressional provisions for the federalization and aggregation of mass tort claims. In the case of September 11, the litigation has been shaped by the Air Transportation Safety and System Stabilization Act (ATSSSA) an aggregation device that Congress devised specifically to address that particular catastrophe.

The Hurricane Katrina litigation has seen the use (and attempted use) of the Multiparty, Multiforum Trial Jurisdiction Act (MMTJA), an event jurisdiction device of general application that Congress established in 2002. This article explores three aspects of post-catastrophe litigation where the consolidation of cases, or the statutes that govern the consolidation of such cases, raise issues about how to think about disaster litigation as a singular category. After providing a brief summary of the paths of the September 11th and Canal Breach litigations, this article demonstrates that when the boundaries of federal jurisdiction are shaped by reference to events, this affects how cases may be consolidated, particularly with respect to Congress's degree of specificity in naming an event as the organizing principle of jurisdiction. These two federal statutes challenge courts to consider how closely, as a matter of law, federal jurisdiction based on the ATSSSA and the MMTJA and the consolidation of cases must be linked under these respective statutes. The article then turns to a discussion of the role that courts of appeals play in determining the boundaries of federal jurisdiction and consolidation for disaster litigation. The article ends with a discussion of the practical and administrative concerns of consolidated disaster litigation. I argue that the September 11th and Canal Breach litigations show that there can be a problem for judges and litigants of sorting common from uncommon issues in the context of a district-wide consolidation organized around an event.

The full-text version of the Article may be downloaded by visiting http://ssrn.com/abstract=1158585.

Ninth Circuit Notes Split Re Reviewability of Remand Based on Declining Supplemental Jurisdiciton

Per California Dept. of Water Resources v. Powerex Corp., --- F.3d ----, 2008 WL 2797031 (9th Cir. Jul 22, 2008):

As DWR notes, the Federal Circuit has come to the opposite conclusion, holding that "a remand based on declining supplemental jurisdiction must be considered within the class of remands described in § 1447(c) and thus barred from appellate review by § 1447(d)." HIF BIO, Inc. v. Yung Shin Pharm. Indus. Co., 508 F .3d 659, 667 (Fed.Cir.2007). That decision, which split with several circuits, id. at 665, found support in the Supreme Court's recent statement that "[i]t is far from clear ... that when discretionary supplemental jurisdiction is declined the remand is not based on lack of subject-matter jurisdiction for purposes of § 1447(c) and § 1447(d)." Powerex Corp. v. Reliant Energy Servs., Inc., 127 S.Ct. 2411, 2418-19 (2007).

The Federal Circuit's disagreement does not give a three-judge panel in this circuit license to overrule the binding, authoritative decision of a prior three-judge panel. See Miller v. Gammie, 335 F.3d 889, 899 (9th Cir.2003) (en banc). Similarly, that the question remains unanswered by the Supreme Court does not relax our obligation to abide by stare decisis. In light of clear precedent, then, we hold that review of a district court's decision to decline an exercise of supplemental jurisdiction is not barred by § 1447(d).

Prof. Clermont Posts Article on Empirical Study of Adjudicatory Process

Professor Kevin Clermont (Cornell) recently posted a paper entitled Litigation Realities Redux with the NELLCO Legal Scholarship Repository. Here is the Abstract:

Both summarizing recent empirical work and presenting new observations on each of the six phases of a civil lawsuit (forum, pretrial, settlement, trial, judgment, and appeal), the author stresses the needs for and benefits from understanding and using empirical methods in the study of the adjudicatory system's operation.

The paper may be downloaded by visiting http://lsr.nellco.org/cornell/lsrp/papers/94/.

Prof. Renleman Posts Due Process and Punitive Damages Article on SSRN

Prof. Doug Rendleman (W&L) has recently posted a piece entitled A Plea to Reject the United States Supreme Court's Due-Process Review of Punitive Damages on SSRN. Here is the Abstract:

Because the audience and readers of this piece are not United States lawyers, I supply background and I paint with a broad brush. In short, the United States Supreme Court's use of the Due Process Clause for judicial tort reform of punitive damages was a serious mistake. On the nebulous due-process foundation, the Court built imprecise yet wrongheaded doctrine based on misguided policy justifications. Other common-law countries ought to learn from our blunders, above all not to repeat them.

I wrote this for the Second International Symposium on the Law of Remedies sponsored by the University of Windsor and the University of Auckland. The Symposium was in Auckland, New Zealand, in November 2007. It will be published in 2008 in a book titled The Law of Remedies: New Directions in the Common Law edited by Jeff Berryman and Rick Bigwood. The footnotes are in Canadian, not Bluebook, form.

The full-text version of this paper may be downloaded at http://ssrn.com/abstract=1146465.

Prof. Doernberg Posts Erie Article on SSRN

Prof. Donald L. Doernberg has recently posted an Article entitled The Unseen Track of 'Erie Railroad': Why History and Jurisprudence Suggest a More Straightforward Form of 'Erie' Analysis on SSRN. Here is the Abstract:

In the seventy years since the Court announced it, the 'Erie' doctrine and the vertical choice-of-law inquiry that it attempts to control have become almost hopelessly complex. This article suggests a different way to characterize the vertical choice-of-law problem that explains all of the previous Erie cases and will help to predict the result of future cases accurately. The vertical choice-of-law process becomes more understandable if one views it through the lens of government interest analysis, a common conflict-of-laws technique. There are some areas, such as torts (as in 'Erie' itself), where the Court has said that the Constitution does not permit there to be a federal interest. In others, federal interests find expression in constitutional, statutory or regulatory provisions, each of which overcomes conflicting state law because of supremacy. Only when there is no regulatory material is the Court faced with what Chief Justice Warren called the relatively unguided 'Erie' choice, and in those cases, the Court has used a balancing approach since its decision in Byrd, which was no more than a government interest analysis without the label. It turns out that all Erie problems are amenable to this approach.

A full-text version of the Article may be downloaded by visiting http://ssrn.com/abstract=1136143.

Prof. Sherwin Posts Article on Pre-Conley Pleading Debate

Professor Emily L. Sherwin has recently Posted an Article entitled The Jurisprudence of Pleading: Rights, Rules, and Conley v. Gibson on SSRN. Here is the Abstract:

In 1957, in the case of Conley v. Gibson, the Supreme Court announced a minimal standard for the contents of a complaint under the Federal Rules of Civil Procedure and endorsed what has come to be known as 'notice' pleading. This article, prepared for a symposium on Conley, reviews the debate over pleading requirements that preceded the case. Unlike modern discussions of pleading, which focus on the level of factual specificity required in complaints, the pre-Conley debate was about the legal content of complaints - an question largely forgotten in the years following Conley.

The early twentieth century debate over pleading was at least in part a jurisprudential debate, waged between legal formalists and Legal Realists. The different interpretations the two camps gave to the pleading rules under the Field Code and, later, the Federal Rules, reflected their differing views of the role of positive law in adjudication. Formalists believed that a viable complaint must set out a theory of recovery, or 'cause of action,' based on existing rules of law. Legal Realists believed that the rules governing complaints should allow plaintiffs to present their stories to the courts and courts to do justice according to the facts that evolved at trial. The formalist view made legal claims dependent on supporting rules of substantive law, and so increased the chances that the course of litigation, and the resolution of litigated disputes, would be governed by articulable legal rules. The Legal Realist view loosened the grip of substantive law on trials, favoring instead a mode of adjudication in which judges aimed for just outcomes, case-by-case.

The article sets out my interpretation of the pre-Conley pleading debate, then describes the rather haphazard way in which the debate was resolved. It concludes with some brief comments on the implications the early debate for civil rights litigation.

A full-text version of the Article may be downloaded by visiting http://ssrn.com/abstract=1147766.

Prof. Stancil Posts Article on the Economics of Pleading on SSRN

Professor Paul J. Stancil has posted an Article entitled The Practical Economics of Pleading on SSRN. Here is the Abstract:

Pleading standards present a tale of two asymmetries. The first is informational: Plaintiffs don't know as much as defendants about defendants' alleged wrongful behavior. Given that, a liberal pleading standard may be sensible; overly demanding pleading standards may ultimately deny justice to worthy plaintiffs who cannot know critical details of their claims before filing.

But informational asymmetry is sometimes counterbalanced by a competing cost asymmetry. In certain circumstances, the cost of litigation is radically different for plaintiffs and defendants. The primary driver of this disparity is liberal discovery; in certain kinds of cases - consumer antitrust cases, for example: defendants' discovery costs may be orders of magnitude higher than plaintiffs' discovery costs. These cost differences may justify stricter pleading standards because these asymmetries may lead to perverse economic incentives for litigating parties. At their worst, overly liberal pleading standards may induce the filing and inefficient settlement of frivolous claims.

Because the risks engendered by these asymmetries are negatively correlated - as the risk of wrongful dismissal goes up, the risk of strike suits goes down - pleading standards present an apparently insoluble problem. This problem is further magnified because the asymmetries themselves are generally positively correlated; claims where cost asymmetries are highest are often the same claims for which informational asymmetries are greatest.

This article explores the economics of pleading with an eye toward breaking the deadlock. It offers a simplified model of the civil litigation process, ultimately identifying a small subset of cases for which economic incentives create risk of abusive litigation. To mitigate this risk, the article proposes a heightened pleading standard for such cases, while preserving the plaintiff's right to opt out of the higher standard by posting a bond that would eliminate the perverse economic incentive to file frivolous claims.

A full-text version of the Article may be downloaded by visiting http://ssrn.com/abstract=1144850.

Fifth Circuit Reverses Sua Sponte Imposition of Rule 11 Monetary Sanctions for Failure to Comply with Proper Procedure

Per Marlin v. Moody Nat. Bank, N.A., --- F.3d ----, 2008 WL 2568823 (5th Cir. June 30, 2008):

In awarding summary judgment to Defendants, the district court, sua sponte, ruled that sanctions would be imposed against Plaintiffs M. Gene Marlin and Old National Bank; subsequently, after ordered filings and a hearing, it set the amount at approximately $640,000. Plaintiffs maintain the sanctions were improper under Federal Rule of Civil Procedure 11. . . . The district court failed in several instances to comply with the mandatory procedure set by Rule 11. Each of those instances constitutes an abuse of discretion, requiring the sanctions to be vacated . . . .

Although Moody National served Plaintiffs with a Rule 11 letter requesting the dismissal of all claims, the attached motion was never filed. It was not until the summary judgment was granted that, as part of that order, the district court, on its initiative, ruled it would impose costs “as simple equity”, and, soon thereafter, ordered Defendants to submit their fees-and-costs statements. Therefore, contrary to Rule 11, the district court did not “determine[ ] that Rule 11(b) ha[d] been violated” “ after [first giving Plaintiffs] notice and a reasonable opportunity to respond”. Fed.R.Civ.P. 11(c)(1) (emphasis added). . . . This alone constituted an abuse of discretion. . . .

[A]lthough sanctions may be awarded on the court's initiative, it is required first to “order [the] attorney, law firm, or party to show cause why conduct specifically described in the order has not violated Rule 11(b)”. Fed.R.Civ.P. 11(c)(3). The district court, however, did not issue the required show-cause order. As a result, this is another reason why the sanctions constituted an abuse of discretion. . . .

Additionally, Rule 11 limits the types of sanctions that may be imposed. . . . Sanctions imposed on the district court's initiative, as in this instance, are limited to nonmonetary sanctions or a monetary penalty payable to the court. Fed.R.Civ.P. 11(c)(4). Therefore, this is yet another basis for the sanctions constituting an abuse of discretion. . . .

6th Circuit: Tax Court Is Not a "Court" and Thus Lacks Power to Transfer Case to District Court

Here is news of a Sixth Circuit case from the Tax Prof Blog:

The Sixth Circuit yesterday affirmed a Tax Court's decision that it lacked authority 28 U.S.C. § 1631 to transfer a case to the federal district court becasue the Tax Court is not a "court" for purposes of 28 U.S.C. § 610. Mobley v. Commissioner, No. 07-2019 (6th Cir. 7/8/08):

What emerges from these two provisions is the following rule: Whenever a civil action is filed in a court, as defined in § 610, and that court decides that it lacks jurisdiction over the dispute, it may transfer the action, if it is in the interest of justice, to any other such court in which the action originally could have been brought. No one disputes that the Mobleys established at least three of the requirements for a transfer: The Tax Court lacked jurisdiction over the dispute; a transfer would serve the interest of justice; and the court to which the Mobleys want the case transferred is a court as defined in § 610­namely, a “district court[] of the United States.” The question is whether they satisfied the fourth element: Is the Tax Court, where the claimants initially filed the action, a “court” as defined in § 610? ...

When Congress, in other words, decided to leave the Tax Court in Title 26 (as an independent agency) rather than moving it to Title 28 (as part of the Judiciary), it deleted­and apparently intentionally omitted­the Tax Court from the courts listed in § 610. All of this history suggests that, whatever the ultimate reach of § 610, it does not include the Tax Court. ...

To our knowledge (and counsel’s knowledge), every other court to address the issue has agreed that the Tax Court is not a "court as defined in section 610."

Judge Condemns Prolix Pleading; Pens Limerick at the End of the Order

Visit http://howappealing.law.com/PresidioGroupVsGMACMortgage.pdf to view a district court order condemning a pleading as prolix and requiring the plaintiff to replead.

Catching many readers' attention is the limerick by the judge at the end of the opinion:

Plaintiff has a great deal to say,
But it seems he skipped Rule 8(a),
His Complaint is too long,
Which renders it wrong,
Please re-write and re-file today.

Also notable was the fact that the complaint was 465 pages long, with the title of the racketeering lawsuit alone occupying eight pages.

2d Cir. Finds that Rule 50 Motion not Waived When Court Indicates that Such a Motion at the Close of the Evidence is Unecessary

Per Brady v. Wal-Mart Stores, Inc., --- F.3d ----, 2008 WL 2597936 (2d Cir. July 02, 2008):

A prerequisite for a motion for judgment as a matter of law post-verdict is that the movant had also moved for judgment as a matter of law “at the close of all of the evidence.” Fed.R.Civ.P. 50(a), (b) (1995). Appellee asserts that Appellants failed to meet this requirement because, although they moved for judgment as a matter of law at the close of Appellee's case, they did not so move at the close of all the evidence. On the final day of testimony, immediately before the first witness was called, however, Appellants' counsel renewed his Rule 50 motion, saying, “I assume you don't need me to raise [it] in any kind of detail.” The court replied, “No. Your 50(a) motion is denied without prejudice to renewing it, if appropriate, after the verdict.” (emphasis added).

We have held that where the trial judge has indicated that renewing a previously made motion for judgment as a matter of law at the close of all the evidence was not necessary, and where the opposing party could not reasonably have thought that the motion was dropped, then judgment as a matter of law may be sought post-verdict. See Am. Protein Corp. v. AB Volvo, 844 F.2d 56, 61-62 (2d Cir.1988); Best Brands Beverage, Inc. v. Falstaff Brewing Corp., 842 F.2d 578, 587 n. 3 (2d Cir.1987). Both were clearly so here; accordingly, Appellants' Rule 50(b) motion was not barred.

St. John's Law Review Publishes Brief Symposium Issue on Twombly

The St. John's Law Review recently published a brief Symposium Issue on Twombly entitled The Future of Pleading in the Federal System: Debating the Impact of Bell Atlantic v. Twombly. Here are the pieces included within the issue:

J. Douglas Richards, Three Limitations of Twombly: Antitrust Conspiracy Inferences In A Context of Historical Monopoly, 82 St. John's L. Rev. 849 (2008).

Richard M. Steuer, Plausible Pleading: Bell Atlantic Corp. v. Twombly, 82 St. John's L. Rev. 861 (2008).

Edward D. Cavanagh, Twombly, The Federal Rules Of Civil Procedure And The Courts, 82 St. John's L. Rev. 877 (2008).

Ettie Ward, The After-Shocks of Twombly: Will We "Notice" Pleading Changes? 82 St. John's L. Rev. 893 (2008)

Ninth Circuit Vacates Dismissal of Civil Rights Complaint that Had Been Dismissed for Prolixity

Per Hearns v. San Bernardino Police Dept., --- F.3d ----, 2008 WL 2579243 (9th Cir. July 01, 2008):

We turn now to the merits of the February 17, 2005 Order dismissing the First Case. Federal Rule of Civil Procedure 41(b) authorizes a district court to dismiss a complaint with prejudice for failure to comply with Rule 8(a). Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir.1981). We review a Rule 41(b) dismissal for abuse of discretion. . . .

On appeal, Defendants do not attempt to identify particular allegations as immaterial or unnecessary. They do not assert that the complaint fails to set forth cognizable causes of action, that the legal theories are incoherent, or that they cannot tell which causes of action are alleged against which Defendants. They simply object that the complaint provides too much factual detail. . . .

the complaint at issue here was not “replete with redundancy and largely irrelevant.” Cf. McHenry, 84 F.3d at 1177. It set out more factual detail than necessary, but the overview was relevant to Plaintiff's causes of action for employment discrimination. Nor was it “confusing and conclusory.” Cf. Nevijel, 651 F.2d at 674. The complaint is logically organized, divided into a description of the parties, a chronological factual background, and a presentation of enumerated legal claims, each of which lists the liable Defendants and legal basis therefor. The FAC and the original complaint contain excessive detail, but are intelligible and clearly delineate the claims and the Defendants against whom the claims are made. These facts distinguish this complaint from the ones that concern the dissent. Here, the Defendants should have no difficulty in responding to the claims with an answer and/or with a Rule 12(b)(6) motion to dismiss. . . .

The district court abused its discretion by imposing the sanction of dismissal with prejudice instead of imposing a less drastic alternative. Plaintiff's complaints were long but intelligible and allege viable, coherent claims.

Standing Rules Committee Approved Proposed Rules Amendments and new Rules

At its June 9-10, 2008, meeting, the Committee on Rules of Practice and Procedure adopted the recommendations of the Advisory Committees on Appellate, Bankruptcy, Civil, and Criminal Rules and approved the following proposed amendments on the computation of time under the rules:

• Appellate Rules 4, 5, 6, 10, 12, 15, 19, 25, 26, 27, 28.1, 30, 31, 39, and 41;
• Bankruptcy Rules 1007, 1011, 1019, 1020, 2002, 2003, 2006, 2007, 2007.2, 2008, 2015, 2015.1, 2015.2, 2015.3, 2016, 3001, 3015, 3017, 3019, 3020, 4001, 4002, 4004, 6003, 6004, 6006, 6007, 7004, 7012, 8001, 8002, 8003, 8006, 8009, 8015, 8017, 9006, 9027, and 9033;
• Civil Rules 6, 12, 14, 15, 23, 27, 32, 38, 50, 52, 53, 54, 55, 56, 59, 62, 65, 68, 71.1, 72, 81; Supplemental Rules B, C, and G; and Illustrative Civil Forms 3, 4, and 60; and
• Criminal Rules 5.1, 7, 12.1, 12.3, 29, 33, 34, 35, 41, 45, 47, 58, 59, and Rules 8 of the Rules Governing §§ 2254 and 2255 Cases.

The Committee also approved the following proposed non-time computation rules amendments and new rules:

• Appellate Rules 4, 22, 26, and new Rule 12.1;
• Bankruptcy Rules 2016, 4008, 7052, 9006, 9015, 9021, 9023, and new Rule 7058, and Official Forms 8, 9F, 10, 23, and Exhibit D to Official Form 1 (effective December 1, 2008), and new Official Form 27 (effective December 1, 2009);
• Civil Rules 13, 15, 48, and 81, and new Rule 62.1; and
• Criminal Rules 7, 32, and 32.2, 41, and Rules 11 and 12 of the Rules Governing § 2254 Cases and Rule 11 of the Rules Governing § 2255 Cases.

The Committee will now transmit the proposed new rules and amendments to the Judicial Conference with a recommendation that they be approved and transmitted to the Supreme Court. The proposed new rules and amendments will be available shortly and will be posted on the "Pending Rules Amendments Awaiting Final Action" page at http://www.uscourts.gov/rules/newrules6.htm.

N.D.N.Y. Uphold Punitive Damages Award with 3-to-1 Ratio in Police Abuse Case

Per Lewis v. City of Albany Police Dept., 547 F.Supp.2d 191 (N.D.N.Y. Apr. 24, 2008):

A trial was held on February 25, 26, 27, 28, and March 6, 2008. The jury rendered a verdict on behalf of plaintiff, Phillip Lewis (“Lewis” or “plaintiff”), and against defendant William Bonanni (“Bonanni”) finding that he used excessive physical force in arresting plaintiff on November 23, 2002, thus violating his constitutional rights. . . . The jury found that the violations of plaintiff's constitutional rights was a proximate cause of compensatory or actual damages to him, and awarded him the amount of $65,000. Further, the jury found that Lewis was entitled to an award of punitive damages against Bonanni. Upon reconvening on March 6, 2008, after hearing closing arguments of counsel for Lewis and Bonanni, the jury returned a verdict awarding plaintiff punitive damages in the amount of $200,000.

. . .

Bonanni . . . argues that the ratio of punitive damages to compensatory damages-because there was a substantial award of compensatory damages the punitive award should be no more than an equal amount. Because Bonanni's use of excessive force against Lewis was racially motivated and occurred while plaintiff was handcuffed, it is particularly reprehensible. Further, the punitive damages award is three times the amount of compensatory damages, an acceptable ratio. See Patterson, 440 F.3d at 121 (noting that a punitive damages award of “ ‘more than 4 times the amount of compensatory damages' ” has been upheld by the United States Supreme Court (quoting Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 23-24, 111 S.Ct. 1032, 1046, 113 L.Ed.2d 1 (1991))). Finally, a comparison of the difference between this award and those from comparable cases leads to the conclusion that this jury's $200,000 award of punitive damages is not so grossly excessive as to shock the judicial conscience. See, e.g., Ismail v. Cohen, 899 F.2d 183, (2d Cir.1990) (upholding $150,000 punitive damage award [$242,952.95 adjusted for inflation] ); O'Neill v. Krzeminski, 839 F.2d 9, 13-14 (2d Cir.1988) (finding, in an excessive force case where handcuffed suspect was repeatedly struck on the head by law enforcement officers, punitive damage award totaling $185,000 [$331,049.92 adjusted for inflation] against the two defendants not excessive).

Eighth Circuit Finds SLUSA Preemption in Bank of America Trust Beneficiaries Case

Per Kutten v. Bank of America, N.A., --- F.3d ----, 2008 WL 2406232 (8th Cir. June 16, 2008):

Background: Trust beneficiaries brought class action against bank, as trustee, alleging breach of fiduciary duty, breach of contract, and related claims, in connection with bank's alleged plan to convert trust assets into mutual funds owned by bank. The United States District Court for the Eastern District of Missouri, Paul A. Magnusen, J., 2007 WL 2485001, dismissed action. Beneficiaries appealed.

Holding: The Court of Appeals, Shepherd, Circuit Judge, held that action was preempted by Securities Litigation Uniform Standards Act (SLUSA).