I’m a trial lawyer for injured people and businesses at The Beasley Firm. Founded in 1958, we have recovered over $2 billion for our clients through hundreds of verdicts and settlements in excess of $1 million. We’re listed in Super Lawyers, Best Lawyers in America, U.S. News’s Top Lawyers, [...]
Another Twombly/Iqbal Victory for Plaintiffs: SCOTUS Denies Certiorari for Digital Music Price-Fixing Case
If you're a reader of this blog, you're undoubtedly familiar with Bell Atlantic v. Twombly and Ashcroft v. Iqbal, a pair of Supreme Court cases which altered the pleading standards applicable to civil cases filed in federal court. Defense lawyers have jumped all over those two opinions in an attempt to dismiss lawsuits — particularly complex commercial class actions, like antitrust cases — before any discovery can be taken. Every lawsuit, they claim, no matter how detailed and compelling, is "implausible" under Twombly and Iqbal. I taught CLEs to help other trial lawyers defeat those arguments. Back when the Iqbal ... Continue Reading
Do Lawyers And Judges Still Look To The Supreme Court For Guidance?
There are two components of every court opinion: first, the "holding," which is what the court did — dismiss the case, uphold the jury verdict, remand for a new trial, overturn a sentence, et cetera — and, second, the "reasoning," where the court explains why it did what it did. For the parties to the case, the most important part is the holding: it tells the parties who won this round, sometimes who won the fight. For everyone else, the holding is meaningless: we want to know the reasoning which will guide future courts in deciding future cases. The Supreme ... Continue Reading
“we can price these almost anywhere we want given the product profiles.”
Those are the charming words of a vice president at Lundbeck, Inc., which claims to be "committed to providing innovative therapies that fulfill unmet medical needs of people with severe, and often rare, diseases for which few, if any, effective treatments are available." By "these," he was, by way of an email to others at the company, referring to a small group of pharmaceutical drugs the rights to which Lundbeck was in the process of acquiring from Merck, including Indocin IV. Indocin IV was, at that time, the primary pharmaceutical treatment for patent ductus arteriosus, in which the shunt that connects ... Continue Reading
The Rising Tide Of Employment Discrimination Claims Won’t Lift Most Boats
At the WSJ Law Blog, The Rising Tide of Job Bias Claims: There’s often a debate about whether litigation in counter-cyclical. Do lawsuits increase when the economy heads south? In one area of litigation, there’s no debate: employment discrimination claims. A lot of folks have been fired, and many of them are are claiming that they were let go because of their race, age, gender, or because of a disability. Job bias claims, to put it mildly, are through the roof, according to this WSJ article. For the six months that ended April 30, more than 70,000 people filed claims with ... Continue Reading
Thoughts On The Third Circuit’s New Section 1 and RICO Enterprise Opinion in the Insurance Brokerage Antitrust Litigation
Last week, after more than a year of drafting following oral argument, and nearly two years after the original District Court order, a Third Circuit panel (Chief Judge Scirica and Judges Fisher and Greenberg) issued their magnum opus on pleading Section 1 antitrust violations after Twombly and Racketeer Influenced and Corrupt Organizations ("RICO") Act "enterprises" after Boyle in the consolidated Multi-District Litigation In re: Insurance Brokerage Antitrust Litigation. The plaintiffs alleged a massive, "global" conspiracy among the major insurance companies and insurance brokers to artificially allocate customers and rig prices for commercial insurance: Plaintiffs are purchasers of commercial and employee benefit insurance, ... Continue Reading
Sign Up For My CLE (Via Webinar) Tomorrow On Iqbal and Twombly
Tomorrow, July 15, 2010, I'm giving the plaintiff's perspective in a webinar CLE titled: Pleadings Standards Post-Iqbal: Meeting Tougher Plausibility Standards in Commercial Litigation. If you've not yet had the pleasure of litigating the heck out of Iqbal v. Ashcroft, this CLE is a good opportunity to get some case cites and perspective. If you have litigated the heck out of it, you might still find some use in it (e.g., my part of the presentation cites 16 plaintiff-friendly cases interpreting Iqbal, including opinions from the Second, Third, Fifth, Seventh, Eighth, Ninth, Tenth, and D.C. Circuits) and you'll get 1.5 hours CLE credit from ... Continue Reading
Fixing The Injustice of Ashcroft v. Iqbal
Last week, Prof. Edward A. Hartnett (of Seton Hall University School of Law) posted Responding to Twombly and Iqbal: Where Do We Go from Here? Hartnett's idea was eminently reasonable: I also offer my own proposal, which focuses on the core issue at stake in debates about Twombly and Iqbal: should a plaintiff be able to obtain discovery in an effort to uncover evidence without which he or she cannot prevail? Hartnett proposes amending Rule 12 of the Federal Rules of Civil Procedure to include: Rule 12(j): Allegations Likely To Have Evidentiary Support After a Reasonable Opportunity for Discovery If, on ... Continue Reading
Second Circuit Revives Digital Music Price-Fixing Case, Takes A Bite Out Of Twombly
Before Ashcroft v. Iqbal improperly re-wrote the Federal Rules of Civil Procedure, Bell Atlantic Corp. v. Twombly foolishly imposed a new hurdle for plaintiffs who brought antitrust claims. Specifically, in Twombly the Supreme Court held, In applying these general standards to a §1 claim [e.g., a price-fixing claim], we hold that stating such a claim requires a complaint with enough factual matter (taken as true) to suggest that an agreement was made. Asking for plausible grounds to infer an agreement does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable ... Continue Reading
Another Misguided Argument In Favor Of Ashcroft v. Iqbal
Oh, Ashcroft v. Iqbal, will we ever stop blogging about you? The newest online debate pits the class action defense lawyers at Drug & Device Law against University of Pennsylvania Law School Professor Stephen Burbank at PENNumbra, the online supplement to UPenn's Law Review. Beck and Herrmann open with a defense of Iqbal on several grounds, including: [C]ourts have no legitimate basis for favoring plaintiffs when interpreting pleading standards. A just system does not pick sides in advance, but instead establishes neutral rules. We reject the normative view that it is somehow “better” to let unmeritorious cases proceed than to risk ... Continue Reading
Posner and Easterbrook Put the Brakes on Ashcroft v. Iqbal
Not too long ago, I argued that Ashcroft v. Iqbal was not nearly as important as commentators thought, and that the sky had not fallen on plaintiffs. Instead, Iqbal merely put into words the standard that numerous courts had already applied to large-scale litigation without saying as much. I also argued that Iqbal in particular involved a very unique circumstance -- a Bivens suit against top-level official -- and so was easily distinguishable from the vast majority of civil litigation. For a while, it seemed no one agreed with me. Every week there was another "[pharmaceutical manufacturing defect / establishment clause ... Continue Reading
