Tag Archives: Commercial Litigation

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

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Philosophy Explains How Legal Ethics Turn Lawyers Into Liars

I am a fan of the American court system. There is no natural law requiring people to resolve their differences by asking third parties to represent them and advocate on their behalf in front of impartial decision-makers. The folks in classical Athens and Rome thought it was a good idea, the Europeans rediscovered the practice in the Middle Ages, and the adversarial system of law has been consistently practiced by England, and then America, ever since.   Since the classical time, there have always been restrictions on lawyers intended to keep them honest. Most of those "restrictions" have amounted to ... Continue Reading

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eBay v. Newmark: Al Franken Was Right, Corporations Are Legally Required To Maximize Profits

[Update, May 2012: Leo E. Strine, Jr., Chancellor of the Delaware Court of Chancery, referenced this post in his thoughtful new law review article, Our Continuing Struggle With the Idea That For-Profit Corporations Seek Profit, 47 Wake Forest L. Rev. 135 (2012).]   [Updates: Francis Pileggi has his take (courtesy of a guest blogger), as does Steven Davidoff at DealBook.   Also, Todd Henderson has a riposte. He's right that most companies can engage in modest philanthropic efforts without worry, but if a company starts putting its money where its mouth is on philanthropy, they'll get eBay'd, just like craigslist was. Craigslist didn't engage in ... Continue Reading

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The Seventh Circuit’s First Report On Electronic Discovery and The Candor of Counsel

At Electronic Discovery Law: Last month, the Seventh Circuit’s Electronic Discovery Pilot Program Committee released its report on phase one of its Electronic Discovery Pilot Program.  Initiated as a “multi-year, multi-phase process to develop, implement, evaluate, and improve pretrial litigation procedures that would provide fairness and justice to all parties while seeking to reduce the cost and burden of electronic discovery consistent with Rule 1 of the Federal Rules of Civil Procedure”, the first phase of the program ended on May 1, 2010, after a seven month period in which the committee’s Principles Relating to the Discovery of Electronically Stored ... Continue Reading

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“Lost” iPhones and Goldman Sachs: Filtering Deception Through Middlemen

"Once the lawyers get involved..." There are a hundred ways to end that sentence. Once the lawyers get involved, everything falls apart. It takes ten times as long to finish a deal. A lawsuit is inevitable. The hysterics start. Few of the potential endings are favorable towards lawyers. Perhaps the most common sentiment is: once the lawyers get involved, the truth gets buried. To some extent, it's true. The first thing a criminal defense lawyer says to a new client? Remain silent. The first thing a litigator says to a new client? Let's get your story straight. The first thing ... Continue Reading

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Federal Circuit Invalidates Harvard and MIT’s Patent For NF-kB Gene Expression

Via Blawgletter (and a couple other sources), the whole eleven-judge Federal Circuit issued a rare en banc opinion that held, 9-2, that Harvard, MIT, the Whitehead Institute for Biomedical Research, and Ariad Pharmaceuticals, Inc. couldn't, well, I'll let Barry Barnett explain: Ariad, MIT, the Whitehead Institute, and Harvard claimed that Eli Lilly infringed their patent on ways to reduce the symptoms of some diseases by causing a protein -- Nuclear Factor kappaB* -- to behave.  The problem (as Blawgletter gleans from the judges' five opinions) arises from the fact that the inventors seem not to have figured out how to suppress ... Continue Reading

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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

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Judge Rakoff (S.D.N.Y.) Enjoins J.P. Morgan From Selling Loan To Telecommunication Company’s Competitor

Felix Salmon at Reuters caught something interesting: [T]he facts of the case are pretty clear. The relationship between JP Morgan and Televisa goes back decades, and so JP Morgan was the natural choice for Televisa to turn to when it decided to buy a fiber-optic cable company called Bestel for $325 million, $225 million of which was to come from Televisa subsidiary Cablevisión. JP Morgan intended to syndicate the loan, but the timing was bad: the deal closed in 2008, when credit markets were all but closed, and as a result JP Morgan ended up owning all of it. After ... Continue Reading

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Why Cravath Will Prevail In The Airgas / Air Products Conflict of Interest Lawsuit

[UPDATE: The WSJ Law Blog has copies of the letters submitted to the Delaware Chancery Court. Professor Hazard is undoubtedly one of the pre-eminent experts in the field, and he makes a compelling argument that Cravath violated the Rules of Professional Conduct. Yet, showing a violation of the Rules is not enough — to disqualify counsel under Chancellor Chandler's standard, Airgas will have to show the violation will "materially advance" Air Product's position or undermine the fair and efficient administration of justice. So far, I haven't seen anything demonstrating that. The vague references made so far to Cravath's insider knowledge of ... Continue Reading

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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

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