Published By: Maxwell S. Kennerly, Esquire

Complex Litigation

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I’ve written a couple times before about the Lago Agrio / Chevron litigation in Ecuador, from questioning why the plaintiffs’ political tactics drew so much criticism but the same standard wasn’t applied to Chevron to commenting on how one side won an appeal by ignoring the Supreme Court’s advice on how to write a brief. It’s a fascinating case not because it’s a David–versus–Goliath battle, as these plaintiffs are backed by a hedge fund, but because of the wide variety of important issues the case raises.

This post isn’t really about the case, though. Anyone who cares to follow the case need only follow Letters Blogatory’s Lago Agrio tag. This post is about one of the important issues raised by the case: where does due process end?

The phrase “due process of law” first appeared in a version of the Magna Carta published more than a century after the original Magna Carta was enacted, with “due process of law” roughly replacing the phrase “lawful judgment of his equals or by the law of the land.” The phrase, however, didn’t mean much in the practice of British law, which is why James Madison, who drafted the due process clause found in the Fifth Amendment, said that the phrase wasn’t by itself sufficient to protect any of the “great rights” like trial by jury, freedom of the press, or “liberty of conscience.” That’s part of why we have those First, Fourth, Sixth, and Seventh Amendments, too.

“Due process” encapsulates the very essence of the rule of law, and so the phrase has shaped American law for generations. As every lawyer learned in their Constitutional Law class back in law school — but which is rarely discussed outside of the legal profession — there are two types of due process, procedural due process which defines the steps the government has to take before criminally punishing you or enforcing a civil judgment against you, and substantive due process, which reflects the rights so fundamental to individual freedom that no procedure could adequately justify their taking.

Substantive due process occupies far more of our national debate because it touches upon the perennial obsessions about reproductive rights and homosexuality. But, as a matter of the application of law, procedural due process touches upon far more lives on a daily basis. In the court system, procedural due process — and the specific procedural protections Madison spelled out for criminal prosecutions in the Sixth Amendment (speedy trial, right to counsel, etc) and civil lawsuits in the Seventh Amendment (jury trial, rules of common law) — touches upon every criminal case from the moment of an arrest and every civil lawsuit from the moment it is filed.

It is sometimes, for example, a violation of due process to apply principles of estoppel to parties that weren’t a party to civil litigation in the first place. Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 329, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971) (“Some litigants—those who never appeared in a prior action—may not be collaterally estopped without litigating the issue. . . . Due process prohibits estopping them despite one or more existing adjudications of the identical issue which stand squarely against their position.”). Similarly, just earlier this week the Supreme Court held that it was a violation of the Sixth Amendment for a criminal defendant to have ineffective assistance of counsel while plea bargaining.

But it’s due process, not limitless process. At some point the court system has rightly or wrongly reached its conclusion. 
Continue Reading Due Process Doesn’t Mean Do Over, Lago Agrio / Chevron Edition

As a lawyer, you’re either a conversationalist, a counselor, a writer, a storyteller, or some mixture of them all. I spend a fair amount of my time reading or writing pleadings and briefs, a fair amount of time either preparing a story (through discovery and depositions) or telling a story (at a court hearing or at trial), and the remainder of my time counseling clients.

Consequently, I’m a sucker for any advice from writers and storytellers, and have previously referenced the methods of writers like David Mitchell and Philip K. Dick, as well as storytellers like Jay-Z and David Mamet. (I’d be remiss in mentioning David Mamet in an article about writing and advocacy without also also referencing Christopher Hitchens’ animadversion against Mamet’s book.)

So naturally I was drawn to NPR’s new story on Poet Laureate Philip Levine:

Levine’s work is most famous for its urban perspective, and its depiction of blue-collar life in Detroit. But while he was working in the factories, he found nothing poetic about them.

“I found the places hateful.” His job at Chevrolet Gear and Axle was hard, he says, “and the work was exhausting.” …

Why was it so hard? Levine quotes another poet laureate, William Wordsworth: “‘Poetry is made up of emotion recollected in tranquility.’ I didn’t have any tranquility,” Levine says. “I was full of anger. I was very aware of the fact that I was being exploited and the people around me were being exploited. There was a mythology about us: We were stupid and lazy and we deserved what we were doing, our dumb work.”

The whole article is worth a read, in part for his stories about that blue collar work, which remind me of Studs Terkel.

Levine adds:
Continue Reading Poet Laureate Philip Levine On Writing “Where The Poem Leads”

If you were diagnosed with bladder cancer after using Actos and are reviewing your legal options, please see my Actos Bladder Cancer Lawyers page for patients. 

I wrote this post for my legal blog, which is ordinarily read by other lawyers. Patients looking for legal help should read the Actos page linked above. 

Personal injury law isn’t like running an ordinary business, not even an ordinary law practice, because of the risk involved in taking cases. Defective drug and consumer products lawsuits exemplify both extremes of our work: the cases are enormously expensive to pursue and require a tremendous amount of attorney time, but they also have the potential to be lucrative blockbusters.

Problem is, once a drug or product is shown to be unreasonably harmful by a study or a recall, there’s no way for us to know for certain what the courts will do with the lawsuits. We don’t roll the dice — it’s much more rational and systematic than that — but we have to play the odds. So it will be with Actos lawsuits: we believe the drug was inadequately tested and didn’t warn patients of the risks, and will vigorously pursue cases against their manufacturer, but the cases aren’t without considerable risk.

Consider the denture cream lawsuits. To paraphrase what I wrote last week while discussing asbestos lawyers, GlaxoSmithKline settled the vast majority of Super Poligrip claims, but Proctor and Gamble fought the Fixodent cases, resulting a judge dismissing one of the bellwhether cases on Daubert grounds.

One of the drug cases trial lawyers are pursuing these days involve Actos (pioglitazone), the best-selling Type 2 Diabetes drug in the world. The Associated Press recently wrote about the “wave of lawsuits” filed against Takeda Pharmaceuticals:

TRENTON, N.J. — The maker of the world’s best-selling diabetes drug is facing hundreds of lawsuits and likely a big sales drop as suspicion grows that taking the pill for more than a year raises the risk of bladder cancer. …

both the U.S. Food and Drug Administration and the European Medicines Agency have issued warnings about the cancer risk based on new research, but they have allowed sales to continue. Doctors are being told not to prescribe Actos for people who have or have had bladder cancer.

The warning will limit patient choices and could spell the end for a once-promising class of Type 2 diabetes drugs that debuted more than a decade ago amid heavy promotion.

An FDA warning that a popular drug increases the risk of any type of cancer or heart disease virtually guarantees the filing of thousands of lawsuits, and pioglitazone is no exception: it raises the risk of bladder cancer by more than 40%, or an “extra 28 cases a year for every 100,000 people taking it.” The irony is why Actos is so popular:

Actos, despite links to heart failure risk and other serious side effects, became the No. 1 diabetes pill after Avandia, the only other drug in that class, was found in 2007 to sharply increase risk of heart attacks. Avandia’s use was banned in the EU and sharply restricted here. Actos sales jumped from about $2.9 billion in 2006 to more than $4.3 billion last year.

Avandia’s restriction, of course, prompted its own wave of lawsuits, and GlaxoSmithKline has settled about 12,000 of them for around $700 million. Assuming the clients are on one-third contingent fee agreements, that’s over $200 million for the lawyers. I don’t say that to be critical; one of those firms, for example, recently spent hundreds of thousands of dollars on an antitrust action just to lose and then also get hit with almost $600,000 in costs. It’s a big-risk, big-reward kind of business, and one of the few elements of society keeping medical products safe in light of the broken clearance processes we have for new drugs and devices.

Which brings me to one of the lessons this episode has for lawyers trying to build a personal injury or product liability law practice.
Continue Reading Lawyer Branding And The Race For Actos Bladder Cancer Clients

As Rich Lord reported at the Pittsburgh Post-Gazette:

The quarry has turned on the hunter in a West Virginia courtroom, and now one of the nation’s biggest transportation companies is locked in a bitter fight with one of Pittsburgh’s most prominent trial law firms.

After years of feeling like they were being railroaded by asbestosis lawsuits, lawyers for CSX Transportation in 2005 sued Robert Peirce & Associates, accusing it of fraud and negligence in the massive cases it brought. The Jacksonville-based corporation lost a 2009 trial, but in court filings in recent weeks it detailed a new theory — that the Peirce firm is a racketeering-influenced corrupt organization that has committed wire fraud and mail fraud in its pursuit of claimants and settlements. …

Prominent advocates for both the plaintiffs’ bar and defense bar said they could not think of another case in which a corporation that endured mass litigation retaliated by turning the RICO statute against its tormentor. They disagreed on the significance of the development.

“The requirements [to prove RICO] are significant and pretty hard to meet under most circumstances,” said Christopher Placitella, a prominent litigator and writer on asbestosis law with the Philadelphia-based plaintiffs’ firm Cohen Placitella & Roth. “You really have to have a unique set of facts” including a conspiracy, multiple criminal acts and a resulting loss of property.

As a result, other plaintiffs’ firms aren’t likely to be chilled by one RICO case, he said.

This isn’t entirely breaking news; six months ago the Fourth Circuit reinstated the case over statute of limitations defenses, reported about here by the anti-consumer folks at Forbes. The full complaint is new, though.

‘Suing trial lawyers for bringing successful mass torts cases’ is something of a fad these days. On the verge of losing litigation they asked be transferred to Ecuador, Chevron has sued the lawyers for the Lago Agrio Ecuadorian plaintiffs alleging RICO violations in the form of judicial tampering. Last year, Illinois Central Railroad won a verdict against two plaintiffs’ attorneys in Mississippi, alleging fraud in the pursuit of two asbestos cases by way of the plaintiffs’ lawyers failure to notify the railroad that the plaintiffs had participated in a prior asbestos-related case. (The lawyers’ brief on appeal is available here if you have ECF/PACER access.)

I don’t fault the reporter for knowing about it, but I do indeed know of another, just like the new CSX lawsuit against Robert Peirce, in which:

  • a large corporation did something bad that harmed a lot of people,
  • a particular plaintiffs’ law firm developed a specialty in those claims,
  • the plaintiffs’ firm got so good at their niche that they were consistently making a lot of money, and, armed with just the right discovery, legal theories, and experts, were able to negotiate premium settlement,
  • then, after a few cases didn’t win, the large corporation turned around and sued the trial lawyers under RICO allegations, alleging the whole thing was a scheme to defraud the corporation, etc.

I expect to see more of these claims in the future. Consider the denture cream zinc poisoning litigation; GlaxoSmithKline settled the vast majority of Super Poligrip claims, but Proctor and Gamble is fighting the Fixodent cases (pardon the expression) tooth and nail. It wouldn’t surprise me if P&G turned around on some of the losing claims and sued the plaintiffs’ firms — many of whom settled hundreds, some thousands of those cases successfully — claiming the whole thing was a fraud on the court. The whole point is to empty the pockets of the lawyers successful in particular niches and to intimidate plaintiffs’ lawyers, deterring them from filing suits, meritorious or not.

To understand the CSX versus Robert Peirce case, you need to know little about the mass torts world. There are four main types of mass tort lawyers:

  1. referral lawyers who find cases (typically through advertising) and refer them to litigators,
  2. whales, the well-capitalized firms that put up the millions of dollars in expenses necessary to pursue these cases and the trial lawyers who control the litigation, including both the discovery and the trial itself (they are often the ones listed as lead counsel or plaintiffs’ liaison counsel), and
  3. syndicate lawyers who don’t put up any money but provide sheer time and energy into litigating these cases for a portion of the attorneys’ fees at the end (this is why you sometimes see the ironic situation of a solo practitioner who practices “complex litigation” out of their home office – they do indeed practice in the area, in that they’re constantly writing briefs or discussing strategy or arguing at hearings, but they are not the ones taking calls from clients, setting clients up with physicians, paying expert fees, etc.).
  4. backers, i.e. well-capitalized firms helping to fund the litigation but who aren’t taking an active role in the litigation.

(Other than “referral lawyers,” I made those terms up.) MDL litigation like the denture cream myelopathy lawsuits can involve all four, but asbestos lawsuits tend to only really involve #1 and #3.

Using that terminology I just made up above, Robert Peirce is a whale. He funds and litigates the cases himself. Assuming a whale starts with cases that are solid enough — trust me, genuine mesothelioma cases are quite solid on liability and damages — then, as an economic matter, the whale has two ways to increase their revenue and profitability. First, they can try bringing in more cases directly and thus avoid paying referral fees and, second, they can minimize the extraordinary costs of litigation, such as by using healthcare providers or other medical services willing to provide a bulk discount.
Continue Reading Why CSX Railroad Sued Successful Asbestos Lawyers For Racketeering

One thing you learn as a personal injury lawyer is that many everyday products are far more dangerous than you thought. Until I became a lawyer and began screening cases and receiving calls, I hadn’t a clue that Children’s Motrin could cause Stevens-Johnson Syndrome.

Tylenol is another example. I’ve used acetaminophen safely for years without a problem, and I thanked my lucky stars for it when 1,000mg of the stuff brought me back from the delirium caused by a 104+ fever. Every week, though, approximately ten people die and one-thousand are sent to the emergency department by acetaminophen overdosing.

Which brings us to In re McNeil Consumer Healthcare, Marketing & Sales Practices Litigation, 10-md-02190 (E.D. Pa.). The Amended Complaint is available on RECAP. The claims arise from a string of recalls of various children’s and infant’s Tylenol, Motrin, Zyrtec, and Benadryl prompted by FDA investigations that uncovered some ugly problems, like:

155. In May and June of 2009, the FDA discovered that from April through June 2008, McNeil had used microcrystalline cellulose, an ingredient used in liquid adult and children’s Tylenol products, that had been potentially contaminated with a gram negative bacteria, Burkholder cepacia.

***

160. Beginning in approximately the Fall of 2008, McNeil began receiving reports regarding musty, moldy odors emanating from McNeil Tylenol pills manufactured at its Las Piedrad, Puerto Rico facility.
161. McNeil did not fully investigate these reports for approximately one year notwithstanding McNeal’s obligation to notify the FDA of such reports within three days.
162. Only after the FDA insisted that McNeil conduct a thorough investigation was it discovered that the odor was the result of contamination by a product called 2,4,6-Tribromoanisole (“TBA”), a pesticide used on the wooden pallets that stored and
transported packaging materials for the medications.

***

169. In April of 2010, McNeil recalled approximately 40 types of children’s and infants’ products manufactured at its Fort Washington, Pennsylvania plant because of filth and contamination, including acetaminophen, cellulose, nickel and
chromium particulate contamination, involving McNeil’s liquid infant and children’s products including Tylenol, Motrin, Benadryl, Zyrtec and Tylenol Infants’ Drops.

You can read the first “Form 483” reports generated by the FDA here. Obviously something went very wrong with the McNeil compliance process, prompting recalls, an unknown amount of physical injury, and economic loss to the many consumers who bought those products (including myself).

The Amended Complaint was just dismissed, with leave to amend against Johnson & Johnson and McNeil.Continue Reading Recalled Product Lawsuits Getting Harder, Children’s Tylenol Edition

[Update: January 12, 2013. RIP, Aaron Swartz. He was 26. His family has released a statement describing his death as “the product of a criminal justice system rife with intimidation and prosecutorial overreach.” Eulogies from Cory Doctorow and Rick Perlstein. 

I wrote the post below back in July 2011, when the indictment was filed (then updated it once in Sepetember 2012). I thought from the onset the prosecution was dubious; after Swartz’s death, the expert who was going to testify on his behalf posted his conclusions, conclusions that to me are damning to the U.S. Attorney’s office. MIT’s network was extraordinarily open by design:

Aaron Swartz was not the super hacker breathlessly described in the Government’s indictment and forensic reports, and his actions did not pose a real danger to JSTOR, MIT or the public. He was an intelligent young man who found a loophole that would allow him to download a lot of documents quickly. This loophole was created intentionally by MIT and JSTOR, and was codified contractually in the piles of paperwork turned over during discovery.

In light of the expert’s disclosures — which suggest that Swartz did have “authorization” to obtain the articles, due to the structure of MIT’s network and the various JSTOR agreements — it seems that the prosecution was even weaker than it appeared on the surface. An AP article notes that JSTOR’s attorney, Mary Jo White, the former top federal prosecutor in Manhattan, had called Stephen Heymann, the lead Assistant U.S. Attorney on the case, to ask him to drop the prosecution; instead, the U.S. Attorney’s office continued to demand Swartz plead guilty to all charges. 

I think the circumstances demand an explanation from U.S. Attorney Carmen Ortiz about what she sought to accomplish with this prosecution (and what transpired between her and Heymann), as well as a statement from the White House as to whether they will continue these “exceeding authorization” prosecutions in the future. Arguably breaching a Terms of Service should not even arguably be a crime. For further reading on the abuse of prosecutorial discretion in light of the consequences here, see Lessig’s “prosecutor as bully.” Dan Gillmor has thoughts about how to remember him by continuing his work. 

Update: January 14, 2013. Back in late 2011, Aaron wrote to me about this post. My recollection here.]

The New York Times reports:

Aaron Swartz, a 24-year-old programmer and online political activist, has been indicted in Boston on charges that he stole more than four million documents from the Massachusetts Institute of Technology and JSTOR, an archive of scientific journals and academic papers. (Read the full indictment below.)

Mr. Swartz was indicted last Thursday by the United States Attorney for the District of Massachusetts, Carmen M. Ortiz, and the indictment was unsealed Tuesday. The charges could result in up to 35 years in prison and a $1 million fine.

JSTOR’s press statement is here. One of Swartz’s companies, Infogami, was funded by Y Combinator and acquired by reddit, so this is big news in the tech world. Demand Progress, a non-profit Swartz founded, is understandably upset:

Cambridge, MA –  Moments ago, Aaron Swartz, former executive director and founder of Demand Progress, was indicted by the US government. As best as we can tell, he is being charged with allegedly downloading too many scholarly journal articles from the Web. The government contends that downloading said articles is actually felony computer hacking and should be punished with time in prison.

“This makes no sense,” said Demand Progress Executive Director David Segal; “it’s like trying to put someone in jail for allegedly checking too many books out of the library.”

“It’s even more strange because JSTOR has settled any claims against Aaron, explained they’ve suffered no loss or damage, and asked the government not to prosecute,” Segal added.

There’s an interesting discussion (mostly about JSTOR) at Y Combinator. The commentators at reddit aren’t impressed either:

Good thing he didn’t rape or murder someone or he’d be facing 15 years.

* * *

Hell, if he was a Wall Street CEO they’d just give him a bonus.

Indeed. Let’s look at the indictment. He’s charged with:

  • 18 U.S.C. § 1343 (Wire Fraud)
  • 18 U.S.C. § 1030(a)(4) (Computer Fraud)
  • 18 U.S.C. § 1030(a)(2), (c)(2)(B)(iii)(Unlawfully Obtaining Information from a Protected Computer)
  • 18 U.S.C. § 1030(a)(5)(B), (c)(4)(A)(i)(I),(VI)(Recklessly Damaging a Protected Computer)
  • 18 U.S.C. § 2 (Aiding and Abetting)
  • 18 U.S.C. § 981(a)(1)(C), 28 U.S.C. § 2461(c),and 18 U.S.C. §982(a)(2)(B) (Criminal Forfeiture)

18 U.S.C. § 1030 is better known as the Computer Fraud and Abuse Act, which I’ve written a little bit about here. As I wrote there, “If the Circuit Courts and the Supreme Court interpret the CFAA the same way they’ve interpreted the RICO Act, we’ll see a lot more of these claims in the future,” and it sure seems like given how the Swartz indictment is primarily based on CFAA violations.

[Update: September 12, 2012. Seth Finkelstein notes that a superseding indictment was entered. As far as I can tell, the charges aren’t really different, there’s just more factual detail supplied. Wired explains. As I mentioned in my original post, even if we assume the prosecutor can prove every word of the indictment, it is by no means clear that Swartz has actually violated the Computer Fraud and Abuse Act.]

But there are a few problems, one democratic (little “d”) problem and a couple legal problems.Continue Reading Examining The Outrageous Aaron Swartz Indictment For Computer Fraud

Big news in the sporting and antitrust litigation worlds — which overlap considerably — on Friday when the U.S. Court of Appeals for the Eighth Circuit (which hears all appeals in federal cases filed in the states between North Dakota, Minnesota, Arkansas, and Nebraska), reversed a preliminary injunction imposed by the U.S. District Court for the District of Minnesota prohibiting the NFL owners from imposing a “lockout” on players.

The order is posted here; when I reference Opinion and Bye Dissent below, I’m referring to that PDF. Two judges, Colloton and Benton (both appointed by George W. Bush — hold that thought) voted in favor of dissolving the injunction while the third judge, Bye (Clinton), provided a lengthy dissent.

As with all sports law news, start with Michael McCann. Here’s his Sports Illustrated column on the ruling. It’s a good summary; I’m going to get more technical and legally opinionated than he can get in an SI column. (Short version of our conclusions: we both agree that a request for en banc review is unlikely, but I’m more sanguine on the players’ odds in a petition to the U.S. Supreme Court.) ESPN has a Q&A as well. Howard Bashman has a round-up of stories here.

It’s probably best to start with the court did not do: the court did not rule on any of the antitrust allegations made by the players. The antitrust case filed by the players can continue to go forward. The court didn’t even rule on whether the players were entitled to an injunction under antitrust law; rather, the court held that labor law precluded the current players from obtaining an injunction and restricted the type of injunction the prospective players could get.

That said, it seems unlikely that either the players or the teams (not to mention their coaches, most of whom live in a precarious existence in which they change teams every two years, and so sided with the players in the case in an amicus brief) have the stomach for years of antitrust litigation during a lockout. More likely, the players and the teams intend to use these preliminary rulings on injunctions and antitrust/labor law to inform their bargaining positions. As the New York Times reports:

According to one person briefed on negotiations, the timing of the court’s opinion — issued in the morning — was “awful” and “not helpful” to the talks, unsettling them just as the sides hoped to finish discussions on the revenue split, the heart of the dispute.

The decision emboldened the hawks among both parties, the person said, inspiring some owners to want more concessions from players, and some on the players’ side to want to press their case, with the prospect that the court could allow antitrust damages.

It seems more than a little strange that both sides could feel emboldened by the order, particularly because, on the most basic level, the players lost one of their most valuable bargaining chips, i.e., the District Court order enjoining the lockout. So let’s dig a little bit deeper into what the opinion actually held and what it holds for the future, both for the NFL and for everyday employees.

There’s a lot to unpack here. We’re going to do it with a lot of laterals, like The Play.

The Players’ Antitrust Trick Play

The most obvious question is: why are we talking about antitrust at all? For purposes of antitrust law, the players are all one big union, which makes the teams all one big employer, and so the teams — at least with regard to their dealings with players — are likely a “single entity” under antitrust law. The teams thus can’t, as a legal matter, set up a “contract, combination in the form of a trust or otherwise, or, conspiracy, in restraint of trade” as prohibited by § 1 of the Sherman Act. A “single entity,” as they say, can’t agree or conspire with itself.

The players tried to get around that by busting up their own union. Right before the players–teams agreement ran out, the players ended the NFLPA’s status as their collective bargaining representative. The NFLPA then amended its bylaws to prohibit collective bargaining with the teams and filed requests with the Department of Labor and the Internal Revenue Service to be reclassified as no longer being a union.

At that point, the teams cease to be a “single entity” and turn into 32 separate entities, and that likely subjects them to antitrust scrutiny. As the Supreme Court held last year in American Needle v. National Football League, a separate case:

The NFL teams do not possess either the unitary decision-making quality or the single aggregation of economic power characteristic of independent action.   Each of the teams is a substantial, independently owned, and inde­pendently managed business.

Thus, as the players have argued, the teams can be liable for engaging in anticompetitive practices that violate § 1 of the Sherman Act, including limiting compensation for just-drafted rookie players, capping salaries for current players, and imposing restrictions on free agents like the “franchise player” and “transition player” designations.

At least that’s the players’ theory. Will it work? Maybe not: despite the American Needle case, which came to the Supreme Court on a very narrow issue — that is, if it was legally possible for the teams to be sued under antitrust laws — the Supreme Court and other federal appellate courts have been notoriously hostile to antitrust claims over the past few years. Consider AT&T v. Twombly (I discussed it briefly here; Twombly kicked off the line of cases later generally referred to as Ashcroft v. Iqbal), which dismissed — before even allowing discovery, much less trial — a fairly compelling antitrust case against the telecommunications companies. Truth is, the Supreme Court just plain doesn’t like consumers and employees.

The players at this point have three options:

  1. Giving up on the injunction, and just moving forward with the antitrust case;
  2. Appealing the Eighth Circuit’s injunction opinion either to the full Eighth Circuit sitting en banc (the current opinion was just a three-judge panel); or,
  3. Appealing to the Supreme Court (which they can do even after an en banc appeal, though it takes longer, and if the Supreme Court accepts the case, though certiorari isn’t assured).

I don’t see why they wouldn’t do #2 or #3. My hunch is that they’ll skip straight to #3: the Eighth Circuit is the most Republican Circuit in the nation, with 9 of its 11 active judges appointed by Republican Presidents (7 by George W. Bush), and so they’re arguably the most hostile Circuit towards unions, employees and consumers. With the Supreme Court, the players at least have a chance.

So let’s figure out what happened in the opinion.

Continue Reading NFL Lockout Injunction Reversal: Using Labor Law Against Employees

Facebook, I wish I knew how to quit you. If we’re not discussing why Mark Zuckerberg won’t sue The Social Network, then we’re talking about you unilaterally changing your Terms of Use or your potential patent battle with Google over Foursquare. And now this:

Olympic rowing twins Cameron and Tyler Winklevoss are pushing ahead with another suit against Facebook, a day after they decided not to appeal [to the] U.S. Supreme Court [a] ruling [by the Ninth Circuit] upholding their $65 million settlement with Facebook and its founder Mark Zuckerberg.

I added the edits above because the original report was just wrong.

The continuation of the Winklevosses’ suit caught a lot of people off-guard: how can the Winklevosses continue a lawsuit in one court when another court has already held that they settled all of their claims?

Grab a cup of coffee and pick up your wands, we’re going beyond 1L Civil Procedure.

Some Background On The Two Lawsuits And The Settlement Agreement

A brief recap: there are two lawsuits involving the Winklevoss twins and Facebook, a lawsuit they filed in Massachusetts federal court (that’s the ConnectU case central to The Social Network) and a lawsuit Facebook filed against them in California federal court which, the Ninth Circuit summarized,

alleg[ed] that the Winklevosses and ConnectU hacked into Facebook to purloin user data, and tried to steal users by spamming them. The ensuing litigation involved several other parties and gave bread to many lawyers, but the details are not particularly relevant here.

Indeed. That Ninth Circuit opinion was quite boring by legal standards: it held that the one-and-one-third page term sheet that the ConnectU plaintiffs signed with the Facebook defendants following a mediation — in which the ConnectU plaintiffs released all their claims in exchange for cash and a piece of Facebook — was enforceable. The ConnectU plaintiffs came up with a couple clever arguments, like the claim that Facebook misrepresented its value and thus violated securities laws, but none of those really mattered: that one-and-one-third page term sheet was good enough to create an enforceable settlement.

That’s the opinion the Winklevosses were appealing to the Supreme Court. Not a bad idea to give that appeal up — their odds of success were minuscule, given that the case didn’t raise any particularly novel or interesting questions of law. It was your standard argument over whether or not a party would be bound by an initial settlement that was not reduced to a longer, finalized document to their satisfaction. (The answer is usually “yes.”)

The California case is thus done and gone, with a Ninth Circuit opinion affirming that the settlement included provisions under which:

The parties also agreed to grant each other “mutual releases as broad as possible,” and the Winklevosses represented and warranted that “[t]hey have no further right to assert against Facebook” and “no further claims against Facebook & its related parties.”

Ordinarily, there’s nothing more to do. The Winklevosses released and settled all of their claims, including the ones in Massachusetts. Typically, if there are multiple cases and one case ends with an agreement or opinion holding that all claims are released, the plaintiff files a praecipe or stipulation to dismiss the case. If they don’t, the defendant files a pro forma page-or-two motion moving to enforce the settlement and dismiss the case.

Using Fed.R.Civ.P. 60(b) To Revive A Lawsuit After You Lose

So, what gives? Can the Winklevosses really set aside the settlement agreement, despite the Ninth Circuit’s ruling enforcing it?

In relevant part, Federal Rule of Civil Procedure 60(b) states:

On motion and upon such terms as are just, the court may relieve a party … from a final judgment, order, or proceeding for the following reasons: … (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party….

As an April 20, 2011 status letter the Winklevosses filed with the Massachusetts court says:

The [ConnectU] Founders respectfully submit that Fed.R.Civ.P. 60(b) and Anderson v. Cryovac, Inc., 862 F.2d 910, 928-930 (1st Cir. 1988) warrant an inquiry into whether the Facebook Defendants intentionally or inadvertently suppressed evidence.

Ironically, if you’re in the United States, then you’re likely familiar with the case the Winklevosses rely on, Anderson v. Cryovac, Inc., 862 F.2d 910, 928-930 (1st Cir. 1988), even if you’re not a lawyer. It’s part of the appeal in the environmental contamination / toxic torts case that was the subject of A Civil Action.Continue Reading Fed.R.Civ.P. 60(b) And The Second Winklevoss Lawsuit Against Facebook

 You know what’s cool? Apparently a billion dollars isn’t cool, according to Sean Parker, no matter what Justin Timberlake in The Social Network might have to say about it.Not a personal injury lawyer.

But what is cool is third-party litigation financing. Don’t believe me? Binyamin Appelbaum at the NYTimes and the Center for Public Integrity did a whole…