Thursday, October 30, 2008

M.D. Tenn. Declines to Dismiss Title VII after 12(b)(6) Challenge

Per Smith v. Davidson Transit Organization, Slip Copy, 2008 WL 4722652, at * 10 (M.D. Tenn. Oct. 23, 2008):

In count three, plaintiff alleges that DTO perpetuated a racially hostile work environment and engaged in racial/gender discrimination in violation of Title VII. . . . Here, the plaintiff's allegations, taken as true, do show that, as an African-American, she was subject to repeated, unwelcome, negative comments about African-Americans, such that it is more than speculative that an offensive and hostile work environment was created. . . .

Further, the plaintiff has also alleged that she and other members of her protected class were treated less favorably in terms of their working conditions while performing rider counts than similarly situated employees who were not in the plaintiff's protected class (African-American and/or female). The plaintiff supports these allegations by referencing that she was forced to work outdoors, without access to a car, without breaks or meals, while other similarly situated employees not in her protected class were allowed privileges such as access to a car and the right to work indoors. . . . With these allegations and underlying factual support, the plaintiff has established that her Title VII claim should not be dismissed.

Tuesday, October 28, 2008

Advisory Committee on Civil Rules to Meet on November 17 & 18

Per Tom Rowe (Duke):

The Advisory Committee on Civil Rules meets on November 17-18 in Washington. The agenda books are now posted on the U.S. Courts Web site, and the one for next month's meeting is at Books/CV2008-11.pdf

The main items on the agenda include discussion (no action yet) on the proposed Rule 26 and 56 amendments, including the Rule 26(b)(4) change about which Bill Simon and John Leubsdorf have circulated to the list a letter of opposition; preliminary discussion about issues concerning assertion of privilege and work-product protection; and discussion about whether to attempt any revisions to Rule 68 on offers of judgment.

Before starting on its meeting agenda on November 17 the committee will hold the first of three scheduled hearings on the Rule 26 and 56 proposals. The other hearings are scheduled for January 14 in San Antonio and February 2 in San Francisco. (Hearings are sometimes called off for lack of attendance.) You can also submit comments rather than appearing at a hearing, including by e-mail to

This round's deadline for submitting comments is February 17.

Monday, October 27, 2008

D. Mass Certifies Nationwide Class in Case Against Pharmaceutical Manufacturers

The court in In re Pharmaceutical Industry Average Wholesale Price Litigation,
252 F.R.D. 83 (D. Mass. Sept. 26, 2008), certified the requested nationwide class against pharmaceutical manufacturers. Here is Westlaw's synopsis of the case:

Consumers and third-party payors (TPPs) brought suit against pharmaceutical manufacturers alleging that manufacturers fraudulently inflated drug prices by misstating average wholesale prices (AWPs) of their drugs in industry publications in violation of state unfair and deceptive trade practice acts (UDTPAs). Plaintiffs moved for certification of two nationwide classes under the unfair and deceptive trade practice laws of more than thirty states.

Holdings: The District Court, Saris, J., held that:

(1) requirement of state UDTPAs that a plaintiff prove reliance did not preclude certification of nationwide class of third-party payors (TPPs) under MediGap supplemental insurance plans;
(2) nationwide class of consumer and third-party payors for Medicare Part B drugs outside of the Medicare context could not be certified under the state UDTPAs that required reliance; and
(3) superiority requirement for nationwide class certification was satisfied.

Friday, October 24, 2008

District Court Rejects Fifth Circuit Rule, Says No Loss Causation Showing Needed Yet

BNA's Class Action Litigation Report (10/24/08) is reporting that the U.S. District Court for the District of Utah Sept. 25 declined to follow U.S. Court of Appeals for the Fifth Circuit precedent, concluded that loss causation need not be established at the class certification stage, and certified a class of investors in Nature's Sunshine Products Inc. (In re Nature's Sunshine Products Sec. Litig., D. Utah, No. 2:06-cv-267 TS, 9/23/08). For the full story, BNA subscribers may click here.

Tuesday, October 21, 2008

SCOTUS Denies Cert. in Case Addressing Split Re Standard of Review for Bremen Dismissals

Yesterday the Supreme Court denied certiorari in Arrow Electronics Inc. v. E.ON AG (9th Cir., 268 Fed. Appx. 551), a case that sought to resolve a circuit split regarding appellate review of dismissals under M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972). Here is BNA's brief summary of the ruling of the Ninth Circuit and the questions presented to the Supreme Court:

Summary of Ruling Below: Court affirms district court decision that dismissed certain claims for improper forum, in accordance with M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972), under which forum selection clause is to be enforced absent showing that it is unreasonable, unjust, fraudulent, or contrary to strong public policy.

Question(s) Presented: (1) Should Bremen doctrine, under which international forum selection clause is controlling if certain exceptions do not apply, be in line with contemporary domestic and international forum selection law? (2) Should Bremen dismissal be reviewed de novo, as nine circuits do, or using abuse of discretion standard, as do two (including Ninth)?

Monday, October 20, 2008

Profs. Bassett and Perschbacher Post Article on Contemporary Divergence from FRCP as Originally Envisioned

Debra Lyn Bassett (Alabama) and Rex Perschbacher (U.C. Davis) recently posted an Article entitled The Revolution of 1938 and its Discontents on SSRN. Here is the Abstract:

This paper explores the divergence between the purposes and goals of the 1938 Federal Rules of Civil Procedure and the purposes and goals of litigation today. In doing so, we chronicle some of the intrusions and erosions into federal procedure that have gradually but permanently altered the 1938 Rules - Congressional tinkering (including the enactment of federal statutes that modify the application of the Federal Rules, such as by imposing higher pleading standards for certain claims); litigant pressures (including the increased use of alternative dispute resolution methods generally, and arbitration and private judging in particular, that result in end runs around the law); and the courts themselves (including local rules that modify broader interpretations of the Federal Rules). With greater barriers to litigation on the merits, and with the increasing privatization of law, the 1938 Federal Rules risk becoming not only less central to litigation, but actually becoming irrelevant-becoming truly mere federal procedural rules to be bent and adapted to the greater goals of managing and concluding litigation. This Article is the result of a Call for Papers by the AALS Section on Civil Procedure and was one of three papers selected for presentation at the 2008 AALS Annual Meeting. The other two selected papers, authored by Professor Richard Marcus and Professor Robert Bone, also appear in this issue of the Oklahoma Law Review.

The Article can be downloaded by visiting

Wednesday, October 15, 2008

SCOTUS Grants Cert. in Case Involving Interpretation of Statute Barring Appellate Review of Remand Decisions

U.S. Law Week's Supreme Court Today is reporting that the Supreme Court has granted certiorari in HIF Bio Inc. v. Yung Shin Pharmaceuticals Industrial Co., Fed. Cir., 508 F.3d 659, 76 U.S.L.W. 1308, a civil procedure case:

Summary of Ruling Below: District court's discretionary decision, under 28 U.S.C. § 1367(c), to remand case to state court after declining to exercise supplemental jurisdiction over state law causes of action necessarily involves predicate finding that claims at issue lack independent basis of subject matter jurisdiction, is therefore within class of remands described in 28 U.S.C. § 1447(c), which bars review of remand orders based either on lack of subject matter jurisdiction or on any defect other than lack of subject matter jurisdiction, and is thus barred from appellate review by 28 U.S.C. § 1447(d).

Question(s) Presented: Is district court order remanding case to state court following discretionary decision to decline to exercise supplemental jurisdiction accorded to federal courts under 28 U.S.C. § 1367(c) properly held to be remand for "lack of subject matter jurisdiction" under 28 U.S.C. § 1447(c) so that such remand order is barred from any appellate review by 28 U.S.C. § 1447(d)?

Tuesday, October 14, 2008

Prof. Pfander Posts Article on Forum Shopping and Federalism

Professor James Pfander (Northwestern) recently posted an Article entitled Forum Shopping and the Infrastructure of Federalism on SSRN. Here is the Abstract:

The recent effort of environmentalists and others to secure progressive social change at the state level enacts a familiar ritual in the history of American federalism. Political actors who have found their initiatives blunted at the national level have often turned to the states. With the ebb and flow of political power between two parties over time, arguments about the relative authority of federal and state governments display far more expediency than principle, far more mutability than predictability. States may be more or less progressive than the national government, depending in good measure on the temper of the times and the relative success of political movements in particular states and regions of the country. If states do not invariably produce progressive social legislation, why then should progressives like Justice Brandeis defend state sovereignty? This Essay suggests that the answer may lie in what it calls the infrastructure of federalism, a series of doctrines that ensure the binding effect of state law in our federal system of interstate litigation. By ensuring the binding effect of state law, the infrastructure of federalism both ensures that state legislatures remain relevant as centers of policymaking and serves to encourage interstate forum shopping. Forum shopping, in turn, may tend to advance the interests of plaintiffs in litigation outcomes. While improving plaintiff win rates does not directly advance progressive social values, forum shopping does tend to ensure that firms operating throughout the nation must comply with relatively more pro-consumer policies at the state level.

This Article may be downloaded by visiting

Thursday, October 09, 2008

Prof. Steinman Posts Article Analyzing Proposed Amendments to FRCP 56

Professor Adam Steinman (Cincinnati) has just posted an Essay entitled An Ounce of Prevention: Solving Some Unforeseen Problems with the Proposed Amendments to Rule 56 and the Federal Summary Judgment Process, a piece which is forthcoming in the Northwestern University Law Review Colloquy. Here is the Abstract:

The Civil Rules Advisory Committee has recently proposed the most significant revisions to Rule 56 since the Federal Rules of Civil Procedure were adopted seventy years ago. Although the stated goal of the proposed amendments is laudable - "to improve the procedures for making and opposing summary-judgment motions, and to facilitate the judge's work in resolving them" - this Essay in the Northwestern University Law Review Colloquy identifies some unanticipated problems with the proposed text. Contrary to the Advisory Committee's intent, the proposed text may inadvertently make substantial changes to the summary-judgment standard and the burdens on litigants at the summary-judgment phase. This Essay suggests specific solutions that would eliminate the potentially troubling consequences of the new rule while preserving its important improvements to the summary-judgment process.

The Essay may be downloaded by visiting

AALS Civil Procedure Section Seeks Information about Future Conferences

The Civil Procedure section of the AALS plans to include a listing of upcoming conferences that would be of interest to civil procedure professors and scholars. Please email Thomas Main, who is a member of the section's Executive Committee, any information that you have pertaining to upcoming conferences. Professor Main's email address is

Tuesday, October 07, 2008

Sedona Conference Releases "Cooperation Proclamation"

According to the Legal Blog Watch, The Sedona Conference will hold a virtual press conference tomorrow at noon Eastern time to release its "Cooperation Proclamation," a document that seeks to promote cooperation in civil discovery. The document is available for download at the Sedona Conference Website.

Monday, October 06, 2008

U. Penn Law Review Publishes Articles From CAFA Symosium

The University of Pennsylvania Law Review has just published pieces from a recent Symposium entitled FAIRNESS TO WHOM? PERSPECTIVES ON THE CLASS ACTION FAIRNESS ACT OF 2005 (Volume 156, Number 6, June 2008). Here are the articles that appear as part of the Symposium:

- The Class Action Fairness Act of 2005 in Historical Context: A Preliminary View, Stephen B. Burbank, University of Pennsylvania Law Review, Volume 156, Number 6, June 2008, p.1439

- CAFA’s Impact on Class Action Lawyers, Howard M. Erichson, University of Pennsylvania Law Review, Volume 156, Number 6, June 2008, p.1593

- The Impact of the Class Action Fairness Act on the Federal Courts: An Empirical Analysis of Filings and Removals, Emery G. Lee, III & Thomas E. Willging, University of Pennsylvania Law Review, Volume 156, Number 6, June 2008, p.1723

- The Class Action Fairness Act in Perspective: The Old and the New in Federal Jurisdictional Reform, Edward A. Purcell, Jr., University of Pennsylvania Law Review, Volume 156, Number 6, June 2008, p.1823

- Lessons in Federalism from the 1960s Class Action Rule and the 2005 Class Action Fairness Act: “The Political Safeguards" of Aggregate Translocal Actions, Judith Resnik, University of Pennsylvania Law Review, Volume 156, Number 6, June 2008, p.1929

- Federal Jurisdiction and Due Process in the Era of the Nationwide Class Action, Tobias Barrington Wolff, University of Pennsylvania Law Review, Volume 156, Number 6, June 2008, p.2035

Thursday, October 02, 2008

Prof. Eichhorn Publishes Article on Drafting and the FRCP Style Project

Professor Lisa Eichhorn (South Carolina) recently published an article entitled Clarity and the Federal Rules of Civil Procedure: A Lesson from the Style Project, 5 Journal of the Association of Legal Writing Instructors 1 (2008). Here is an excerpt from the Introduction:

At the stroke of midnight on December 1, 2007, the Federal Rules of Civil Procedure both changed completely and did not change at all. As a result of the Style Project, a monumental undertaking of the Judicial Conference's Standing Committee on Rules of Practice and Procedure, a full stylistic revision replaced the existing text of the civil rules with the aim of “conveying unchanged meaning more clearly and more efficiently.” As a veteran teacher of both Civil Procedure and Legal Writing, I am by turns elated and angst-ridden about this change, but I remain in awe of those who have been so undaunted and diligent as to bring it about.

I am not an experienced drafter of rules, and this article does not attempt to extract a long list of specific drafting tips from the work of the Style Project, nor does it undertake a rule-by-rule critique of the restyling. The best drafting advice to emerge from the Style Project has already been memorialized by the consultants who participated in the effort, and the best critique of the restyling will come from the combined experiences of the lawyers and judges who will navigate, interpret, and apply the new language in the years to come.

Instead, this article treats the Style Project's revision of the civil rules as a case study to examine the place of plain language techniques in the legislative-and rule-drafting process. The after-the-fact, non-substantive nature of the Style Project's revision is extraordinary and will no doubt generate some complex interpretive problems. Nevertheless, comparisons of old and restyled rule language reveal that plain language techniques can play a beneficial role in the ordinary rule-drafting process. Such techniques, when intelligently and flexibly employed, need not hinder a rule's ability to convey complex content, to function effectively within an existing legal context, or to communicate to an appropriate audience. Time will tell if the Style Project has succeeded at every turn in the extraordinary task of preserving the precise meaning of the civil rules while clarifying the expression of that meaning. Meanwhile, the restyled rules already demonstrate that in more ordinary rule-drafting and rule-revising scenarios, where drafters must express new substantive meaning as clearly as possible, the style fostered by plain language techniques can convey detailed, sophisticated content effectively.