Wednesday, July 28, 2010

EDVA Judge Holds Email Not Protected by "Common Interest" Rule

Per In re: OutsideWall Tire Litigation (E.D. Va. July 6, 2010):

In their motion to compel, plaintiffs sought testimony from Harjeev Kandhari, a managing agent of the Al Dobowi defendants, concerning an e-mail exchange between nonparty Sam Vance and Harjeev Kandhari, In an e-mail dated March 10, 2007, Vance—who then as now worked as a consultant for the Al Dobowi defendants—-informs Surender Kandhari that he is required to submit answers to interrogatories in connection with then-pending litigation against him in a Florida court, and asks, "Have you heard anything from the Attorneys?" and, further, "Is it O.K. to turn in the answers??" The e-mail chain reflects that the message thereafter is forwarded to Harjeev Kandhari, and he states, "We are still waiting for our attorneys who have all the files," but he also says, M] only noticed one thing—please do not mention the names of Al Dobowi or any of the family members anywhere in your deposition. He has not [sic] right to ask anything about us." The final e-mail in the chain is from Vance to his attorney, Scott Peterson, in which Vance forwards the underlying e-mail correspondence with the note, "FYI."

. . .

It follows from these conclusions [that the communications were not privileged in the first instance and that they were not protected work product] that the so-called "common interest privilege"does not protect the e-mail communication betwen Vance and Kandhari. This is so because it "is 'more properly identified as the common interest rule,'" for it does not create a privilege where one does not otherwise exist. In re Grand Jury Subpoenas 89-3 & 89-4, 902 F.2d 244, 249 (4th Cir. 1990) (quoting United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989)). Instead, the rule is an exception to the ordinary principle that a privilege is waived when the confidential information is shared with a third party in circumstances where the third party "'shares] a common interest about a legal matter.'" Id (quoting Schwnmmer, 892 F.2d at 243-44). Thus, the common interest rule "presupposes the existence of an otherwise valid privilege," id., the absence of which is fatal to a claim that evidence is privileged and therefore inadmissible.

Wednesday, July 21, 2010

Eleventh Circuit Holds That CAFA Cases Require At Least One Plaintiff with $75K+ Claim

Per Cappuccitti v. DirecTV, Inc., --- F.3d ----, 2010 WL 2803093 (11th Cir. July 19, 2010)

We hold that in a CAFA action originally filed in federal court, at least one of the plaintiffs must allege an amount in controversy that satisfies the current congressional requirement for diversity jurisdiction provided in 28 U.S.C. § 1332(a). Such a conclusion is compelled by the language of § 1332 as well as the general principle that federal courts are tribunals of limited jurisdiction whose power to hear cases must be authorized by the Constitution and by Congress. See, e.g., Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 1675, 128 L.Ed.2d 391 (1994). If we held that § 1332(a)'s $75,000 requirement for an individual defendant did not apply to § 1332(d)(2) cases, we would be expanding federal court jurisdiction beyond Congress's authorization. We would essentially transform federal courts hearing originally-filed CAFA cases into small claims courts, where plaintiffs could bring five-dollar claims by alleging gargantuan class sizes to meet the $5,000,000 aggregate amount requirement. While Congress intended to expand federal jurisdiction over class actions when it enacted CAFA, surely this could not have been the result it intended.

Nor does it require analytical acrobatics to apply § 1332(a)'s jurisdictional requirement in the CAFA class action context. While § 1332(d) may have altered § 1332(a) to require only minimal diversity in CAFA actions, Lowery, 483 F.3d at 1193 n. 24, there is no evidence of congressional intent in § 1332(d) to obviate § 1332(a)'s $75,000 requirement as to at least one plaintiff.FN11 Moreover, the $75,000 requirement expressly applies in actions removed under CAFA, 28 U.S.C. § 1332(d)(11)(B)(i),FN12 and we can think of no reason why Congress would have intended the requirement in the context of CAFA removal jurisdiction but not CAFA original jurisdiction. Holding otherwise would cause a nonsensical result: a case in which a plaintiff claimed less than $75,000 in controversy in state court could not enter federal court by removal (defeating Congress's purposes in enacting CAFA), but could, if the plaintiff chose, be brought in federal court under CAFA original jurisdiction (assuming the case met all of CAFA's other requirements). Again, we highly doubt that Congress intended this result.

Prolix Brief Rejected by 3d Circuit

Although in a criminal, not civil appeal, I thought this was interesting. The Third Circuit instructed prosecutors to cut their brief because it was much too long, 53,000 words rather than the ordinarily allowed 14,000:

Thursday, July 15, 2010

Prof. Bone Publishes Twombly/Iqbal Article

The Notre Dame Law Review has just published Professor Robert Bone's latest article on Twombly/Iqbal entitled Plausibility Pleading Revisited and Revised: A Comment on Ashcroft v. Iqbal. The piece may be downloaded at the Notre Dame Law Review website:

Wednesday, July 14, 2010

Prof. Fitzpatrick Posts Article on Class Action Settlements on SSRN

Professor Brian Fitzpatrick (Vanderbilt) has recently posted an article entitled An Empirical Study of Class Action Settlements and Their Fee Awards on SSRN. Here is the Abstract:

This article is a comprehensive empirical study of class action settlements in federal court. Although there have been prior empirical studies of federal class action settlements, these studies have either been confined to securities cases or have been based on samples of cases that were not intended to be representative of the whole (such as those settlements approved in published opinions). By contrast, in this article, I attempt to study every federal class action settlement from the years 2006 and 2007. As far as I am aware, this study is the first attempt to collect a complete set of federal class action settlements for any given year. I find that district court judges approved 688 class action settlements over this two-year period, involving nearly $33 billion. Of this $33 billion, roughly $5 billion was awarded to class action lawyers, or about 15% of the total. Most judges chose to award fees by using the highly discretionary percentage-of-the-settlement method, and the fees awarded according to this method varied over a broad range, with a mean and median around 25%. Fee percentages were strongly and inversely associated with the size of the settlement. The age of the case at settlement was positively associated with fee percentages. There was some variation in fee percentages depending on the subject matter of the litigation and the geographic circuit in which the district court was located, with lower percentages in securities cases and in settlements from the Second and Ninth Circuits. There was no evidence that fee percentages were associated with whether the class action was certified as a settlement class or with the political affiliation of the judge who made the award.

The article may be downloaded by visiting

Tuesday, July 13, 2010

Prof. Tidmarsh Posts Essay on Resolving Cases "On the Merits"

Professor Jay Tidmarsh has recently posted an essay entitled "Resolving Cases 'On the Merits'" on SSRN. Here is the abstract:

Prepared for a Symposium on Civil Justice Reform, this essay examines the role of the “on the merits” principle in modern American procedure. After surveying the possible meanings of the phrase, the essay critiques its most common understanding due to its economic inefficiency and its lack of strong philosophical support. Relying on the recent work of Amartya Sen, the essay proposes that the principle be replaced with a “fair outcome” principle that melds both “procedural” and “substantive” concerns.

This piece may be downloaded at