Thursday, April 30, 2009

Souter retiring from Supreme Court

Per Supreme Court Justice David Souter is retiring after more than 18 years on the nation's highest court, a source close to Souter told CNN. Souter will leave after the current court term recesses in June, the source said. Filling Souter's seat would be President Obama's first Supreme Court appointment -- and the first since George W. Bush's picks of Samuel Alito in 2006 and Chief Justice John Roberts in 2005

Thursday, April 23, 2009

Advisory Committee Takes Final Action on Rule 26 and 56 Proposed Amendments

Professor Steven Gensler has shared the following report on the Civil Rules Advisory Committee Meeting that recently took place:

I thought I’d give a quick update on the Advisory Committee’s meeting from earlier this week. The Committee took final action on two proposals – Rule 26 expert discovery and Rule 56 – that I know quite a few of you have been following.

The Committee voted to approve the Rule 26 proposal substantially as published. It makes four principal changes. First, for experts that are not subject to the formal report requirement, it requires disclosures stating the subject matter on which the witness is expected to present expert evidence and a summary of the facts and opinions to which the expert is expected to testify. Second, it amends the text of Rule 26(a)(2)(B) to link the disclosures in the expert report to “the facts or data” considered by the expert instead of “the data or other information” considered by the expert. Third, it extends Rule 26(b)(3) work-product protection to draft reports. And fourth, it extends Rule 26(b)(3) work-product protection to attorney-expert communications except in three defined areas.

The bench and bar overwhelmingly supported the Rule 26 proposals. While they will limit expert discovery, the consensus was that the current system of very open expert discovery imposed substantial costs and yielded little of any use, since the lawyers and experts just found ways not to generate anything that would be subject to discovery. There was opposition by a group of very respected law professors who thought the proposal failed to properly value the need to ensure that experts are independent and not just paid mouthpieces for the attorneys who hire them. While those concerns are legitimate, the Committee believed, unanimously, that the proposal struck the right balance (recall that discovery is allowed in three areas, and of course the expert still must defend his or her opinion on the merits).

The Committee voted to approve the Rule 56 proposal but with one big change. As published, the proposal would have established a nationally-uniform procedure for making and briefing summary judgment motions. The procedure was informally referred to as “point-counterpoint,” and it was modeled after procedures currently in place in a number of districts. In written comments and at hearings, the Committee heard from many people who thought either that point-counterpoint was a bad procedure or that, good or bad, there was no need to impose it nationally. Ultimately, the Committee concluded that it lacked a sufficient basis for mandating point-counterpoint in light of the continuing debate over whether it was or was not “best practice” and the fact that (unlike, for example, the summary judgment standard), there is need for a nationally-uniform summary judgment processing rule.

The Committee also voted to reinstate the word “shall” into Rule 56. During the Style Project, “shall” was translated to “should” under the generally-applicable style conventions. The Committee note to the 2007 amendment that made this change reinforced that, while should reflected a reservoir of discretion, there would be few occasions not to grant SJ when the standard had been met. The Rule 56 proposal as published continued to use should. We received many, many comments saying that the proper translation of shall is must, and asking us to make that change now. The Committee voted to revert to shall on the basis that neither should nor must truly capture the subtleties that have developed in this area.

As for the Rule 56 proposal generally, the purpose from the beginning was to bring the rule up to date without changing the standard for when summary judgment was available. Anyone who has read the text of Rule 56 recently knows that the text of the rule bears little relation to practice. Some of the updating included (1) creating text-based authority for partial summary judgments; (2) clarifying what the court may do when a party fails to respond to (or properly respond to) a summary judgment motion; and (3) clarifying the court’s power to grant summary judgment for a nonmovant, on grounds not raised, or sua sponte. And overall, Rule 56 was reorganized to flow more logically.

With these votes, the Rule 26 and Rule 56 proposals now go to the Standing Committee for their consideration. From there, they would go to the Judicial Conference, the Supreme Court, and Congress respectively. By my math, if the proposals continue to receive approval and proceed along that path, then these proposals would take effect on December 1, 2010.

Wednesday, April 22, 2009

SCOTUS Rules on Appropriate Analysis Federal Circuit Must Apply to Review Veterans' Appeals Court Errors

Yesterday the U.S. Supreme Court decided Shinseki v. Sanders, No. 07-1209. Here is the BNA U.S. Law Week summary of the holding:

In reviewing veterans' claims on appeal from the Court of Appeals for Veterans' Claims where the Department of Veterans Affairs has failed to provide a veteran with a certain kind of statutorily required notice, the Federal Circuit is required by 38 U.S.C. §7671(b)(2) to rely on the kind of "harmless error" analysis that is usually applied in civil cases, rather than an overly complex and rigid framework of presumptions and evidentiary burdens.

Wednesday, April 15, 2009

Prof. Dodson Posts Article on Comparative Pleading Standards

Professor Scott Dodson (Arkansas) recently posted an Article entitled Comparative Convergences in Pleading Standards on SSRN. Here is the Abstract:

Comparative civil procedure has had little influence in American jurisprudence and commentary, in part because of American procedure's deep and widespread exceptionalism. But this may be changing, at least in certain areas. The American notice pleading standard, for example, which has long been considered exceptional, shows signs of trending toward the fact pleading models of foreign countries. Congressional experimentation with heightened pleading in statutes such as the Private Securities Litigation Reform Act and the Supreme Court's recent pronouncement in Bell Atlantic v. Twombly suggest that American pleading jurisprudence is moving away from its traditionally exceptionalist corner and towards a regime focused on facts that is more akin to the global norm. If so, then this trend may allow for more meaningful transnational dialogue between the U.S. and foreign systems, more valuable comparative analyses in the U.S., and the potential to harmonize civil procedure across national boundaries.

This Article may be downloaded by visiting

Friday, April 10, 2009

Attorney Disbarred for Yelling at Federal Magistrate's Law Clerk

Per Legal Blog Watch, April 10, 2009:

Be kind to a judge's law clerk. That is the moral of a 5th U.S. Circuit Court of Appeals decision this week upholding the one-year disbarment from federal court of a lawyer who did not take kindly to the law clerk's phone call. As the lawyer grew increasingly angry during the call, the law clerk duly wrote it all down, later reporting it to Mildred Methvin, the federal magistrate judge for whom she worked in the Western District of Louisiana. Magistrate Judge Methvin passed it on to U.S. District Judge Tucker Melancon, all of which set in motion the path to the lawyer's disbarment.

For more information and links to the opinion click here.

Wednesday, April 08, 2009

Seventh Circuit Rules on Conflict between CAFA and the Securities Act

The ABA's Litigation News is reporting on a Seventh Circuit decision that speaks to the seemingly conflicting removal provisions of the Class Action Fairness Act and the Securities Act:

The Seventh Circuit’s recent decision in Katz v. Gerardi [PDF], regarding the removal of class action Securities Act claims brought in state court, has raised questions about the intersection between Section 22(a) of the Securities Act of 1933 and the Class Action Fairness Act of 2005 (CAFA) (28 U.S. § 1332(d)(2)).

The dispute in Katz arose from a real estate investment trust merger. The issue was “whether §22(a) insulates all claims under the 1933 Act from removal under the 2005 Act.”

The Seventh Circuit found that “Section 22(a) and the 2005 Act are incompatible; one or the other must yield,” and it held that Section 22 of the 1933 Act does not prevent removal when the requirements of CAFA are met. Instead, “securities class actions covered by the 2005 Act are removable, subject to exceptions in §1332(d)(9) and §1453(d).”

The full article is available here.

Tuesday, April 07, 2009

6th Cir. Cites Twombly as Requiring "Facts Sufficient to Support More than a Speculative Injury to Competition" in Antitrust Case

Per CBC Companies, Inc. v. Equifax, Inc., --- F.3d ----, 2009 WL 860225 (6th Cir. Apr. 2, 2009):

CBC's complaint contains only conclusory allegations, and not facts sufficient to support more than a speculative injury to competition. See Twombly, 550 U.S. at 555. CBC suggests that Equifax is: (1) diminishing the competitive advantage of reissues over tri-merged reports; (2) restricting competition between its own reseller subsidiary, Equifax Mortgage, and other resellers; and (3) increasing reissue costs and decreasing options for mortgage lenders. In effect, CBC argues injury in the form of “higher costs [for reissues] and loss of market share in the Mortgage Lender Market.”

But CBC's complaint fails to allege key facts to substantiate an antitrust injury-that is, that competition in the Mortgage Lender Market decreased due to Equifax's Reseller Agreement. Although the complaint contends that “CBC Innovis and other Resellers are the principal victims of Equifax's unlawful actions,” CBC never identifies any of these other resellers, and never establishes whether any of these resellers signed a contract similar to the Reseller Agreement. See Total Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 437 (6th Cir.2008) (“Without an explanation of the other insurance companies involved, and their products and services, the court cannot determine the boundaries of the relevant product market and must dismiss the case for failure to state a claim.”). Moreover, although CBC filed its amended complaint in August 2007, several months after signing the Reseller Agreement, the complaint fails to allege any specific increases in costs for its reissues or lost market sales in the Mortgage Lender Market. CBC's complaint offers generalized allegations of antitrust injury, but the Supreme Court requires more than “naked assertion[s]” to establish antitrust standing. See NicSand, 507 F.3d at 451 (quoting Twombly, 550 U.S. at 557). As the Twombly Court pronounced, “a naked assertion ... gets the complaint close to stating a claim, but without some further factual enhancement it stops short of the line between possibility and plausibility.” 550 U.S. at 557.

Monday, April 06, 2009

Several Non-Time Computation Amendments to FRCP Included among Changes Approved by the Supreme Court

The Supreme Court approved amendments to the Federal Rules of Civil Procedure on March 26, 2009. Although it is well known that those amendments included the so-called time computation amendments, there were also several non-time computation amendments that were approved, including the following:

- Rule 13(f) was abrogated.
- Rule 15(a) will be amended to permit amendment as a matter of course within 21 days of service of a motion under Rule 12(b), (e), or (f) or 21 days after a responsive pleading has been filed, whichever is earlier. Thus, the right to amend will no longer be extinguished upon the filing of a responsive pleading.
- Rule 48 was amended to add jury polling.
- Rule 81 was amended, inter alia, to expand the definition of the term "state" to include any commonwealth or territory of the United States.

The amendments also propose creating a new rule, FRCP Rule 62.1, that adopts a procedure for dealing with motions that a district court lacks the authority to grant due to a pending appeal.

Visit for the full text of these and all of the approved rule changes.