Thursday, February 26, 2009

D.C. Circuit Affirms Sanctions against Non-Party for Failure to Comply with Deadline in Stipulated Discovery Order

In a January D.C. Circuit appellate opinion, In re Fannie Mae Securities Litigation, _ F.3d _, 2009 WL 21528 (C.A.D.C., Jan. 6, 2009), the court addressed the consequences of entering into a stipulated order designed to resolve some of the problems encountered over the course of complying with a subpoena issued under Federal Rule of Civil Procedure 45.

Specifically, the Office of Federal Housing Enterprise Oversight (OFHEO) appealed from a contempt order of the U.S. District Court in D.C. for failing to comply with a discovery deadline to which it agreed. The D.C. Circuit upheld the sanctions, finding that OFHEO had voluntarily bound itself to the terms of a stipulated discovery order and thus sanctions were appropriate for its violation, even though OFHEO was not a party to the underlying litigation and had spend over $6 million trying to comply with the order.

To read an article about this case, click here.

Wednesday, February 25, 2009

The Fordham Law Review presents Against Settlement: Twenty-Five Years Later

The Fordham Law Review is hosting a symposium on Owen Fiss's Against Settlement. Here are the details:

Friday | April 3, 2009
9:00 a.m. – 5:30 p.m.
Fordham Law School | McNally Amphitheatre
140 West 62nd Street | New York, NY 10023

In 1984, Owen Fiss provocatively argued that the ADR movement overvalued settlement, that adjudication serves a purpose greater than dispute resolution, and that "[c]ivil litigation is an instrument for using state power to bring a recalcitrant reality closer to our chosen ideals." Against Settlement, 93 Yale L.J. 1073 (1984). What do we make of his arguments twenty-five years later? In the intervening years, the dispute resolution field has matured, public interest lawyering has changed, aggregate litigation has grown with comprehensive resolution as an expected endgame, and global perspectives on litigation have become more prominent, shedding new light on the arguments Fiss raised.

The Fordham Law Review has assembled a remarkable group – many of the nation’s leading voices in ADR, complex litigation, and public interest lawyering – for a one-day symposium to reconsider questions of settlement and adjudication in civil litigation.

Speakers include:

John Bronsteen, Loyola University Chicago School of Law
Amy Cohen, The Ohio State University Moritz College of Law
Howard Erichson, Fordham University School of Law
Kenneth Feinberg, The Feinberg Group, LLP
Owen Fiss, Yale Law School
Samuel Issacharoff, New York University School of Law
Pamela Karlan, Stanford Law School
Michael Moffitt, University of Oregon School of Law
Jackie Nolan-Haley, Fordham University School of Law
Susan Sturm, Columbia University School of Law
Hon. Jack Weinstein, Eastern District of New York

Monday, February 23, 2009

Minn. Law Review Publishes Prof. Erbsen Piece on Horizontal Federalism

The Minnesota Law Review recently published an article by Professor Allan Erbsen (Minnesota) entitled Horizontal Federalism. Here is the Abstract:

This Article constructs frameworks for analyzing federalism's undertheorized horizontal dimension. Discussions of federalism generally focus on the hierarchical (or vertical) allocation of power between the national and state governments while overlooking the horizontal allocation of power among coequal states. Models of federal-state relations tend to treat the fifty states as a single aggregate unit, obscuring the fact that individual states often cannot concurrently exercise their powers without infringing the other states' autonomy, frustrating the others' legitimate interests, or burdening the others' citizens. Preserving interstate harmony and protecting citizens from excessive burdens therefore requires limits on how states may wield their shared authority. Constitutional law currently addresses these limits in a piecemeal fashion through doctrines regulating such diverse subjects as personal jurisdiction, restraints on interstate commerce, choice of law, federal subject-matter jurisdiction, interstate compacts, federal common law, tax apportionment, interjurisdictional preclusion, and discrimination based on state citizenship. This Article moves beyond the piecemeal approach by identifying facets of horizontal federalism that transcend doctrinal categories. Considering these common features without the distraction of historically contingent doctrinal labels can help reconfigure jurisprudence that is often unprincipled, unsatisfying, and unstable.

This article can be downloaded from SSRN by visiting

Tuesday, February 17, 2009

Prof. Seinfeld Publishes Article on Federal Question Jurisdiction

The California Law Review has just published an Article by Professor Gil Seinfeld (Michigan) entitled The Federal Courts as a Franchise: Rethinking the Justifications for Federal Question Jurisdiction, 97 Cal. L. Rev. 95 (Feb. 2009). Here is an excerpt from the Introduction:

Since 1875, the federal district courts have been vested with what is known as “general federal question jurisdiction”--original jurisdiction predicated on the presence in a suit of a question of federal law. The conferral of such jurisdiction on the federal courts is typically justified on three grounds. First, state court judges are thought more likely than their federal counterparts to exhibit bias against claims sounding in federal law; second, federal courts are thought better able than state courts to supply a uniform interpretation of federal law; and third, federal judges are thought to have greater expertise than state court judges in the interpretation and application of federal law. By channeling federal question cases into the federal courts, the argument goes, we increase the likelihood of even-handed, uniform, expert adjudication of federal law. This “bias-uniformity-expertise” mantra lies at the core of judicial and scholarly discourse relating to federal question jurisdiction. It is incanted almost reflexively by courts when they craft doctrine governing the allocation of federal question cases between the state and federal judiciaries, and it is frequently the starting point for scholarly analysis of these doctrines.

Despite its prominence in judicial and academic discussions of federal jurisdiction, the bias-uniformity-expertise model has significant limitations. This is true in two senses. First, there are important ways in which the shape of our jurisdictional landscape cannot be squared with the standard account of the purposes federal question jurisdiction is designed to serve. It is not simply that pockets of the law of federal question jurisdiction are difficult to explain by reference to the narratives of bias, uniformity, or expertise (though that is surely the case); the dissonance is far sharper. Key fragments of the rules governing the federal courts' authority to decide questions of federal law have explicitly been premised on rejection of each component of the conventional model of federal question jurisdiction. Thus, the actual behavior of Congress and the courts in setting the terms of the federal judiciary's interface with federal law raises serious doubts as to the explanatory power of the conventional account. Second--and this, no doubt, explains some of the dissonance between the theory and practice of federal question jurisdiction--there is reason to doubt the accuracy of the empirical claims that lie at the core of the conventional wisdom. That is, there is cause to question whether federal judges are in fact more likely than their state court counterparts to vindicate federal claims, whether the lower federal courts meaningfully advance the interest in a uniform interpretation of federal law, and whether and when the claim of federal judicial expertise has genuine purchase.

Monday, February 16, 2009

Second Circuit Affirms Dismissal under Federal Civil Rule 37

Per Agiwal v. Mid Island Mortg. Corp., --- F.3d ----, 2009 WL 350717 (2d Cir. Feb. 13, 2009):

Several factors may be useful in evaluating a district court's exercise of discretion to dismiss an action under Rule 37. These include: “(1) the willfulness of the non-compliant party or the reason for noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of the period of noncompliance, and (4) whether the non-compliant party had been warned of the consequences of ... noncompliance.” Nieves v. City of New York, 208 F.R.D. 531, 535 (S.D.N.Y.2002) (citing Bambu Sales, Inc. v. Ozak Trading Inc., 58 F.3d 849, 852-54 (2d Cir.1995)). Further, we note that dismissal pursuant to Rule 37 is appropriate “not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a sanction.” Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976).

The record before us reveals no abuse of discretion by the District Court in affirming Magistrate Judge Bloom's recommendation of dismissal. Agiwal's communications with the Magistrate Judge and opposing counsel indicate that he understood the Magistrate Judge's discovery orders and realized that timely compliance was expected. Yet, over a span of approximately six months-from the Magistrate Judge's October 5, 2006 scheduling order to Agiwal's third scheduled deposition on April 16, 2007-Agiwal defied all of her orders, each of which warned of the possibility of sanctions, including dismissal. Even when the Magistrate Judge imposed a lesser sanction, Agiwal still failed to comply with any of defendant's discovery requests. Under these circumstances, Agiwal's alleged health problems and the fact that English is his second language cannot excuse his repeated failures to comply with the Magistrate Judge's orders. Agiwal reported no health problems for the vast majority of the six month period at issue, and his filings demonstrate fluency in written English. His appearance before our Court demonstrated an adequate command of spoken English.

Accordingly, we have little trouble concluding that Agiwal's noncompliance, including his failure to appear at three scheduled depositions, amounted to “sustained and willful intransigence in the face of repeated and explicit warnings from the court that the refusal to comply with court orders ... would result in the dismissal of [the] action.” Valentine, 29 F.3d at 50. Magistrate Judge Bloom handled this matter with exceptional patience and care; to her credit, she exceeded what was required in the circumstances.

Friday, February 13, 2009

Court Certifies Class, Gives Preliminary OK to Settlement of Asbestos Litigation

Per BNA's Class Action Litigation Report, 10 CLASS 112, Feb. 13, 2009:

The U.S. Bankruptcy Court for the District of Delaware Jan. 16 certified a settlement class of more than 16,000 homeowners who sued specialty chemical manufacturer W.R. Grace & Co. in asbestos-related lawsuits (In re W.R. Grace & Co., Bankr. D. Del., No. 01-01139 (JKF), 1/16/09).
Judge Judith K. Fitzgerald ruled that in light of the circumstances of this case, the difficulties encountered and likely to be encountered in further prosecution of the claims, the scientific and other controversies surrounding the case, and the difficulties of proof, the proposed settlement is “well within the range of possible approval and should be submitted to the Class for comment.”

. . .

Judge Fitzgerald concluded that the requirements of Federal Rule of Civil Procedure 23 and Federal Rule of Bankruptcy Procedure 7023 had been met for certification of the proposed U.S. ZAI class. According to the court, the class members are predominately individual residential property owners with claims of modest economic value. Questions common to the class include the extent of asbestos contamination in ZAI, the risks posed by asbestos contamination of ZAI, and whether the debtors' ZAI marketing and sales practices could result in liability to class members.

Fitzgerald determined that the class representatives were typical of the claims of the class and, thus, appointed Marco Barbanti and Ralph Busch as class representatives.

The court also determined that the class action is a “superior method for fairly and efficiently adjudicating this controversy.” According to the court, class treatment “offers significant judicial efficiencies.

BNA subscribers may access the full article by clicking here.

Tuesday, February 10, 2009

SEC Must Give More Tailored Response To David Stockman's Discovery Requests

BNA's U.S. Law Week (77 U.S.L.W. 1468) is reporting on a recent discovery decision by Judge Shira Scheindlin:

The Securities and Exchange Commission's response to former Reagan administration budget director David Stockman's discovery requests in a securities fraud enforcement action was sorely deficient, the U.S. District Court for the Southern District of New York held Jan. 13 (Securities and Exchange Commission v. Collins & Aikman Corp., S.D.N.Y., No. 07 Civ. 2419 (SAS), 1/13/09).

The decision addresses what Judge Shira A. Scheindlin called “important questions concerning the Government's discovery obligations in civil litigation.”

The agency's proffer of 10.6 million pages of unsorted documents to Stockman when its attorney had in fact already sorted the documents into about 175 files corresponding to allegations in the complaint was “patently inequitable,” and not shielded by the attorney work product doctrine, the court held. “The SEC's blanket refusal to negotiate a workable search protocol responsive to [certain other] requests is patently unreasonable,” she added. And the agency's “blanket refusal to produce any incoming or outgoing e-mails is unacceptable,” she found.

BNA subscribers can read the full article by clicking here.

Thursday, February 05, 2009

Prof. Erickson Post Article on Shareholder Litigation

Professor Jessica Erickson (University of Richmond) recently posted an Article entitled Corporate Misconduct and the Perfect Storm of Shareholder Litigation on SSRN. Here is the Abstract:

When it comes to combating corporate misconduct, is more litigation necessarily better? The conventional wisdom is that we should deploy every weapon in the law's arsenal to combat corporate misconduct. This wisdom, however, reflects legal scholarship that is confined to analyzing securities class actions and derivative suits in isolation, with little inquiry into the interplay between them. By failing to take a broader view of shareholder litigation, legal scholars have missed an opportunity to provide courts with the conceptual tools necessary to meet the complex challenges of complex corporate litigation. In courtrooms and boardrooms across the country, a debate is raging over whether courts should permit shareholders to file parallel securities class actions and derivative suits arising out of the same allegations of corporate wrongdoing-a debate that has gone almost entirely unnoticed in the legal academy. The time has come for legal theory to catch up with legal practice. We must re-conceptualize the tools we use to combat corporate misconduct, recognizing that securities class actions and derivative suits can work together to achieve the diverse goals of shareholder litigation. We should then bring these new conceptual insights to bear on the current legal debate over how courts should handle parallel securities class actions and derivative suits. Now is the perfect time to calm the perfect storm of shareholder litigation.

This Article may be downloaded by visiting

Monday, February 02, 2009

The Howard Law Journal has just published papers from the 2008 Second Annual Vinson & Elkins LLP/Howard Law Journal Symposium. This year's focus was the legacy of the Supreme Court's 1957 decision in Conley v. Gibson. Here is a listing of the Articles and their citations:

Andrew I. Gavil, Civil Rights And Civil Procedure: The Legacy Of Conley v. Gibson, 52 HOWLJ 1.

Honorable Robert L. Carter, Civil Procedure As A Vindicator Of Civil Rights: The Relevance Of Conley v. Gibson In The Era Of “Plausibility Pleading”, 52 HOWLJ 17.

Roy L. Brooks, Conley And Twombly: A Critical Race Theory Perspective, 52 HOWLJ 31.

Emily Sherwin, The Jurisprudence of Pleading: Rights, Rules, and Conley v. Gibson, 52 HOWLJ 73.

A. Benjamin Spencer, Pleading Civil Rights Claims In The Post-Conley Era, 52 HOWLJ 99.