Wednesday, November 26, 2008

Bhopal Suit Reinstated Due to Procedural Error

Per U.S. Law Week, 77 U.S.L.W. 1320 (Nov. 25, 2008):

A ground water pollution case premised on the same Bhopal, India, pesticide factory explosion that prompted an earlier toxic tort suit resolved by settlement was reinstated by the U.S. Court of Appeals for the Second Circuit Nov. 3. Procedural error on the district court's part in converting a motion to dismiss into a motion for summary judgment and then dismissing the case requires reversal, the appeals court said. A motion to dismiss focuses solely on the adequacy of the pleadings, while a summary judgment motion considers sworn testimony in an effort to identify undisputed issues. Characterizing the matter as “a close case,” the appeals court here determined that “in light of the peculiarly difficult procedural history of this and related litigation,” it was error to convert the motion to dismiss without giving the parties “reasonable opportunity to present all the material that is pertinent to the motion.” The opinion addressed only procedural matters and did not discuss the water pollution at the core of the suit. Sahu v. Union Carbide Corp., 2d Cir., No. 06-5694, 11/3/08. 23 Toxics Law Reporter 984.

Tuesday, November 25, 2008

Japan Is Appropriate Forum for Tort Suit

Per U.S. Law Week, 77 U.S.L.W. 1320 (Nov. 25, 2008):

A district court properly dismissed, on forum non conveniens grounds, a U.S. company's suit alleging conversion against Japanese entities, the U.S. Court of Appeals for the Seventh Circuit held Oct. 28. Although the plaintiff is incorporated in Delaware, it is the wholly owned subsidiary of a Japanese company, and its headquarters are in Japan, the court pointed out. Most of the alleged misdeeds were done in Japan as well, and almost all the relevant witnesses and documents are there, it added. Noting that the defendant bank has initiated a “mirror-image declaratory judgment suit in Japanese court,” the court found “no reason for identical suits to be proceeding in different courts in different countries thousands of miles apart.” Although acknowledging the presumption in favor of a plaintiff's forum choice, the court rejected the plaintiff's procedural and public interest arguments in favor of a U.S. forum. U.S.O. Corp. v. Mizuho Holding Co., 7th Cir., No. 07-3588, 10/28/08

Friday, November 21, 2008

Prof. Ides Posts Civil Procedure Professors' Amicus Brief in Ashcroft v. Iqbal

Allan Ides (Loyola Los Angeles) has posted the amicus brief filed on behalf of a group of civil procedure professors in Ashcroft v. Iqbal, a case that may address the much discussed pleading standard that came out of Bell Atlantic, Corp. v. Twombly. Here is a summary of the brief prepared by Prof. Ides:

he decision of the Supreme Court in Bell Atlantic Corp. v. Twombly caused confusion among lower courts, the practicing bar and the academy regarding the current status of pleading standards under Federal Rule of Civil Procedure 8(a)(2). The Court appears poised to respond to that confusion in Ashcroft v. Iqbal, a case that raises the question of heightened pleading standards in the specific context of a high government official's assertion of a qualified immunity defense. This amicus brief offers the Court an opportunity to reaffirm its commitment to Rule 8(a)(2)'s short and plain statement standard and to the rulemaking process established under the Rules Enabling Act, without at the same time repudiating its opinion in Bell Atlantic. The brief also discusses the relationship between pleading standards and the qualified immunity defense, and attempts to demonstrate that assertion of that defense should not alter the long-established short and plain standards of Rule 8(a)(2).

The brief may be downloaded by visiting

Thursday, November 20, 2008

Cornell's LII Bulletin Previews SCOTUS Argument in Philip Morris v. Williams

Philip Morris U.S.A. v. Williams (07-1216)
Oral argument: Dec. 3, 2008
Appealed from: Oregon Supreme Court (Mar. 24, 2008)

In 1997, Mayola Williams's husband Jesse Williams died from lung cancer as a result of smoking cigarettes manufactured and marketed by Philip Morris USA Inc. Mayola Williams sued Philip
Morris alleging negligence, strict product liability, and fraud. At trial, the court rejected Philip Morris's request for a jury instruction on punitive damages which stated that Philip Morris
could not be punished for harms suffered by nonparties. The jury awarded Williams $79.5 million dollars in punitive damages. In Philip Morris USA v. Williams ("Williams II"), the U.S. Supreme Court vacated the decision of the Oregon Supreme Court upholding this award and instructed the lower court to apply its standard of prohibiting punishment of a defendant for damage to nonparties. On remand, the Oregon Supreme Court upheld its decision, finding that a state procedural law not previously addressed justified the trial judge's denial of the requested
instruction. In this case, the Court will decide whether a lower court can decline to apply a standard that the Court has articulated and instead uphold its ruling on state procedural law
grounds. This decision will affect the Supreme Court's institutional supremacy and state courts' treatment of punitive damages awards.

Monday, November 17, 2008

Felons Can Serve as Named Plaintiff, Judge Rules, Certifies Class of Jail Detainees

Per BNA's Class Action Litigation Report, 11/14/2008:

A federal judge in Chicago granted class certification in a case focusing on the Cook County Jail's procedures for distributing prescription drugs to inmates, after rejecting the defendant's adequacy-of-representation argument that asserted felons cannot serve as class representatives (Parish v. Sheriff of Cook County, N.D. Ill., No. 07 CV 4369, 10/24/08).

U.S. District Court Judge Matthew F. Kennelly of the Northern District of Illinois Oct. 24 certified a class of current and former inmates confined to the Cook County Jail who were denied prescribed drug therapies by the facility.

In so ruling, Kennelly refused to accept the county's assertion that the individual plaintiffs lacked credibility, due to their felony backgrounds, and could not serve as class representatives.

Thursday, November 13, 2008

No Heightened Pleading Required for CFAA Claims

Per BNA:

Allegations that former contractors have wrongfully accessed corporate bank accounts, changed protected computer passwords, and caused the wrongful transfer of electronic funds are sufficient to set out a colorable claim under the federal Computer Fraud and Abuse Act, even though they do not meet the heightened pleading requirements of Rule 9(b), the U.S. District Court for the District of Utah held Oct. 17 (Zero Down Supply Chain Solutions Inc. v. Global Transportation Solutions Inc., D. Utah, No. 2:07-CV-400, 10/17/08).

The court said that CFAA claims require only notice pleading. “The Moving Defendants have cited no case law, nor does the text of the statute itself suggest, that a claim under the FCFAA requires pleading with particularity,” Judge Tena Campbell said. “The Court finds that notice pleading is sufficient with regard to Plaintiffs' FCFAA claims.”

The plaintiffs would have to prove the veracity of their allegations at trial, the court said, but concluded that the claims were, as plead, sufficient to withstand a motion to dismiss.

Full text at

Wednesday, November 12, 2008

SCOTUS Notes Requirement of Likelihood of Injury, Not Just Possibility, to Obtain a Preliminary Injunction

Per WINTER, SECRETARY OF THE NAVY, et al. v NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., No. 07–1239 (Nov. 12, 2008):

The District Court and the Ninth Circuit also held that when a plaintiff demonstrates a strong likelihood of prevailing on the merits, a preliminary injunction may be entered based only on a “possibility” of irreparable harm. . . . The Navy challenges these holdings, arguing that plaintiffs must demonstrate a likelihood of irreparable injury—not just a possibility—in order to obtain preliminary relief. . . .

We agree with the Navy that the Ninth Circuit’s “possibility” standard is too lenient. Our frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction.

Monday, November 10, 2008

Prof. Sloan Posts Article on Non-Precedential Opinions on SSRN

Professor Amy E. Sloan (Baltimore) recently posted an Article entitled If You Can't Beat 'Em, Join 'Em: A Pragmatic Approach to Nonprecedential Opinions in the Federal Appellate Courts on SSRN. Here is the Abstract:

For many years, judges and academics have debated the pros and cons of non-precedential judicial opinions in the federal appellate courts. Although the utility, necessity, and advisability of non-precedential opinions remain interesting issues to debate, at this point they are somewhat beside the point. Academics have lost the debate on non-precedential opinions. Judges control whether non-precedential opinions are permissible, and judges are not going to give them up anytime soon.

So, as the saying goes, if you can't beat 'em, join 'em. Rather than continue to debate the merits of non-precedential opinions, the better course of action is to find a principled way to integrate them into the judicial system, both to provide clarity regarding the weight of the opinions and to preserve the legitimacy of the federal appellate courts.

This article argues that Federal Rule of Appellate Procedure 32.1, which eliminated citation restrictions on non-precedential opinions, should be revised to integrate non-precedential opinions into the judicial system. Specifically, the rule should expressly authorize non-precedential opinions, establish uniform procedures governing their issuance, and define their authoritative value. The easiest answer to this last issue is to make the opinions persuasive authority. A bolder step, and one this article advocates, would be to create a new category of "overrulable" authority to give non-precedential opinions some weight without giving them full precedential value. The article concludes that the federal judiciary must take steps to institutionalize non-precedential opinions in a way that preserves the system of precedent.

The full-text version of this Article may be downloaded by visiting