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 opinion first came out, I wasn’t impressed. Sure, the Supreme Court added the word "plausible" to the Rule 8 standard, but frankly I didn’t think Twombly or Iqbal would make Rule 8 and Rule 12(b)(6) any more dispositive than they already were. Before either of those cases were decided, if a judge read a plaintiff’s complaint and thought that the claim was "implausible," they would dismiss it under Fed.R.Civ.P. 12(b)(6) for failing to state a claim upon which relief could be granted. Twombly and Iqbal simply codified a practice that was already widespread in the federal judiciary.

That’s not to say I think the opinions do nothing — by way of their vague, ambiguous and amorphous language, they confuse a lot of judges into arbitrarily deeming certain allegations to be "conclusions" instead of "facts" (and even Judge Posner can’t figure out the "plausibility v. probability" distinction) — but the underlying legal principles are the same.

I said as much at the time. Time has proven me correct.

Almost exactly a year ago I posted Second Circuit Revives Digital Music Price-Fixing Case, Takes A Bite Out Of Twombly, noting a Second Circuit opinion which held:

Although the Twombly court acknowledged that for purposes of summary judgment a plaintiff must present evidence that tends to exclude the possibility of independent action, 550 U.S. at 554, and that the district court below had held that plaintiffs must allege additional facts that tended to exclude independent self-interested conduct, id. at 552, it specifically held that, to survive a motion to dismiss, plaintiffs need only “enough factual matter (taken as true) to suggest that an agreement was made,” id. at 556; see also 2 Areeda & Hovenkamp § 307d1 (3d ed. 2007) (“[T]he Supreme Court did not hold that the same standard applies to a complaint and a discovery record . . . . The ‘plausibly suggesting’ threshold for a conspiracy complaint remains considerably less than the ‘tends to rule out the possibility’ standard for summary judgment.”).

Defendants next argue that Twombly requires that a plaintiff identify the specific time, place, or person related to each conspiracy allegation. This is also incorrect. The Twombly court noted, in dicta, that had the claim of agreement in that case not rested on the parallel conduct described in the complaint, “we doubt that the . . . references to an agreement among the [Baby Bells] would have given the notice required by Rule 8 . . [because] the pleadings mentioned no specific time, place, or person involved in the alleged conspiracies.” 550 at 565 n.10. In this case, as in Twombly, the claim of agreement rests on the parallel conduct described in the complaint. Therefore, plaintiffs were not required to mention a specific time, place or person involved in each conspiracy allegation. 

The Second Circuit’s opinion was significant. The case was right up Twombly‘s alley — an allegation of an illegal agreement in violation of antitrust laws, the details of which were still known only to the defendants — and so the Second Circuit’s reinstatement of the case dealt a powerful blow to the defense lawyers who had been arguing that Twombly and Iqbal had slammed the courthouse shut on plaintiffs who couldn’t prove their whole case before even filing it.

The record companies in that case weren’t inclined to throw in the towel, so they filed a petition for certiorari to the Supreme Court arguing, as you would imagine, that the Second Circuit failed to follow Twombly and Iqbal.

A funny thing happened yesterday. Tucked in among pages and pages of summary orders at the Supreme Court was this:

The petition for a writ of certiorari is denied. The Chief Justice and Justice Sotomayor took no part in the consideration or decision of this petition.

The Second Circuit’s opinion thus stands firm. Even after Twombly and Iqbal, all a plaintiff needs to allege, even in a complex antitrust case, is “enough factual matter (taken as true) to suggest" the elements of the claim.

That’s the same as the Third Circuit recently held in In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010) and later applied to all cases, including complex cases, in W. Penn Allegheny Health Sys. v. UPMC, No. 09-4468, (3d Cir. November 29, 2010)(precedential).

In short, the Circuit Courts have taken a hard look at Twombly and Iqbal and have rejected the numerous attempts by big corporations to slam the courthouse doors shut on meritorious cases, and the Supreme Court hasn’t stopped those Courts from setting the record straight.

In celebration, below the fold are some plaintiff-friendly precedential opinions over the last year in various Courts of Appeals (in addition to the Second Circuit and Third Circuit opinions above). 

Continue Reading Another Twombly/Iqbal Victory for Plaintiffs: SCOTUS Denies Certiorari for Digital Music Price-Fixing Case

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 nothing more than an oath sworn by lawyers to the government, but, on the whole, lawyers really do tend to be honest in their practice. In the bulk of my cases, particularly those “routine” cases involving reasonable insurance coverage (like automobile accidents and medical malpractice), neither I nor my client believe that the opposing counsel is intentionally lying during the course of the case.


Sure, opposing counsel and I may have strong differences of opinion about the underlying facts, and even in those routine cases the defendants are frequently, shall we say, less than forthright in their telling of the facts and their production of relevant evidence, but I generally recognize — and a most of my clients understand and accept — that the lawyer for the other side has a job to do. They are there to zealously advocate on behalf of their client. They didn’t witness the event with their own eyes; they know only what their client is telling them, and, apart from knowingly participating in perjury or some other fraud on the court, opposing counsel has a duty to zealously advocate on their clients’ behalf, rightly or wrongly.


That’s appropriate. As I wrote before about The Limits of Advocacy, “there’s nothing wrong with advocating on behalf of your client an argument you believe ‘probably could not succeed.’ There are two sides to every story, and at least two interpretations of every legal issue. The United States uses an adversarial legal system precisely so that these stories and interpretations can be fully developed, critiqued, and challenged.”  Zealous advocacy and loyalty are two fundamental tenants underlying our adversarial system of law. I expect nothing less of opposing counsel, and I deliver nothing less to my own clients.


The situation changes considerably when you start talking about complex litigation, particularly cases alleging fraud by a business (such as racketeering and False Claims Act cases, neither of which are insurable) and cases involving seven figures or more in potential damages. Those are the cases that bring in the big corporate defense firms with whole teams of lawyers that can rack up five-figure bills for the corporate client in the course of a typical workday. (I suppose it’s money well spent when you consider the guilty corporation’s alternative: owing up to their responsibility to pay for the serious damage they caused.)


Those complex business, commercial and class action cases also tend to get bogged down in the court system with endless motions, oral arguments, status conferences, and settlement conferences, anything and everything except for, of course, an actual jury trial, the last thing that a guilty corporation wants to go through. Justice delay is justice denied.


At trial, lawyers tend to stay within the normal bounds of zealous advocacy because fabrications and falsehoods tend to be exposed rapidly and brutally before the jury.


The same does not apply to all of those motions, oral arguments, status conferences, and settlement conferences. There is little space or time to rebut every misrepresentation made by a lawyer in a motion or at an oral argument, and virtually no way to prove that your opponent has lied in the middle of the conference before the judge. The situations simply do not present that type of opportunity. In a status conference, for example, the judge will be familiar with the case, but they will of course not have every document and every deposition memorized, and will have no way to evaluate the mere words of one lawyer versus another.


It is in many ways a license to lie. The lawyer will never get caught for a “misunderstanding” or “having a different view” or “being stupid” at one of these non-testimonial court events. The client will rarely be held responsible for their lawyer’s lie, even if it was made right in front of the client, who listened silently and nodded in approval. (“Though silence is not necessarily an admission, it is not a denial, either.” — Cicero.) I cannot cross-examine the opposing party to ask them if they agree with what their lawyer just said, and refer them to documents establishing the opposite.


At these pre-trial events, the only thing stopping a lawyer from looking the judge in the eye and telling him or her an outright lie is that oath the lawyer made to the government years ago.


Unfortunately, some lawyers out there apparently do not take that oath seriously.


In the last few weeks I have had a few occasions where, in the midst of one of these conferences during a complex case, opposing counsel has told the judge an outright lie. I do not mean “lie” in that their client has one version of the facts and my client has another version. I mean “lie” in that the opposing lawyer has said something to the judge that cannot be supported by any document or testimony in the case, a “lie” that I assure you would never be told to a jury under oath, since it would be swiftly disproven.


After each of those instances I was asked by my client, “can their lawyer just lie like that?”


As much as I would like to maintain the good reputation of the legal profession with the standard litany about the duty to be a “zealous advocate,” there’s nothing about being a zealous advocate which requires someone to lie, and I knew that these were, in fact, lies, pure and simple, lies designed to frustrate the judicial process by misleading the judge and thereby prolonging the case and introducing frivolous diversions from the real facts of the case.


How does this happen? Lawyers are not any more pure of heart than the population as a whole, but surely it cannot be that a substantial portion of lawyers have made the conscious decision to tell outright lies to judges. “In spite of everything, I still believe that people really are good at heart,” said Anne Frank, but maybe her experience proves the contrary. Some scholars think morality is hard-wired into the human brain, and I tend to agree. Few people see themselves as bad actors.


There must be some other explanation.


Clancy Martin, a philosopher turned liar turned philosopher again, explains:


As I would tell my salespeople: If you want to be an expert deceiver, master the art of self-deception. People will believe you when they see that you yourself are deeply convinced. It sounds difficult to do, but in fact it’s easy—we are already experts at lying to ourselves. We believe just what we want to believe. And the customer will help in this process, because she or he wants the diamond—where else can I get such a good deal on such a high-quality stone?—to be of a certain size and quality. At the same time, he or she does not want to pay the price that the actual diamond, were it what you claimed it to be, would cost. The transaction is a collaboration of lies and self-deceptions.


Here’s a quick lesson in selling. You never know when it might come in handy. … Use the several kinds of lies Aristotle identified in Nicomachean Ethics: A good mixture of subtle flattery, understatement, humorous boastfulness, playful storytelling, and gentle irony will establish that “you’re one of us, and I’m one of you.” We are alike, we are friends, we can trust each other.


The problem is, once lying to your customer as a way of doing business becomes habitual, it reaches into other areas of your business, and then into your personal life.


“There is nothing so ridiculous that some philosopher has not said it,” said Cicero, but the lying philosopher (he’s known these days as “The Lie Guy”) is right.


Recall those duties of zealous advocacy and loyalty. Sure, there are competing duties duties of merit, candor and fairness, but meeting those duties does not pay the bills. Loyalty and zealous advocacy pay the bills, and if lawyers really invest themselves emotionally, financially, and philosophically in their clients’ clause, then of course some lawyers will not even see the line drawn in the sand, the liar line, when they cross it.


So that is my answer to the clients wondering where the legal system has gone wrong: no, the opposing lawyer cannot just lie like that, but they might not even realize they’re doing it — before they tried to deceive you, they deceived themselves.

[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).]


[UpdatesFrancis 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 “purely philanthropic ends,” they tried to protect the frugal, community-centric corporate culture that was a hallmark for their success. The Court held: no, sorry, can’t do that, because that conflicts with your duty to maximize shareholder value. Thus, the duty to maximize profits isn’t, as Henderson said, a “canard.” It’s an enforceable — albeit rare, since most corporations willingly maximize profits — legal doctrine, and it was just enforced against craigslist.]


Remember all the complaining conservative corporate law professors did back when Senator Al Franken decried the profit-seeking motives of corporations?


Here was Todd Henderson:


In a recent speech at the Netroots Nation, Senator Al Franken tried to frighten the crowd by trotting out the corporate bogeyman that greedily makes decisions without regard to anything other than profit. Franken told them: “it is literally malfeasance for a corporation not to do everything it legally can to maximize its profits.” Individuals across the political spectrum share this common canard. Those on the right, like Milton Friedman, argue that the shareholder-wealth-maximization requirement prohibits firms from acting in ways that benefit, say, local communities or the environment, at the expense of the bottom line. Those on the left, like Franken, argue that the duty to shareholders makes corporations untrustworthy and dangerous. They are both wrong.

While the duty to maximize shareholder value may be a useful shorthand for a corporate manager to think about how to act on a day to day basis, this is not legally required or enforceable ….

Under this legal regime, it is not malfeasance for boards or corporate chiefs to make decisions that do not maximize shareholder value.


And here was Stephen Bainbridge, following up on Henderson:


I agree. Indeed, I’ve made this point in my own writing on corporate social responsibility. See, e.g., The Bishops and the Corporate Stakeholder Debate. As I explain therein, however, while the business judgment rule has the effect of giving directors latitude to make decisions that deviate from the shareholder wealth maximization norm, that is not the purpose of the rule.

The fact that corporate law does not intend to promote corporate social responsibility, but rather merely allows it to exist behind the shield of the business judgment rule becomes significant in — and is confirmed by — cases where the business judgment rule does not apply.


Larry Ribstein jumped in, too: “The Franken misconception is widely espoused by those in the radical anti-corporate camp, such as the author of the widely read screed The Corporation.”


Somebody better tell that to the “radical anti-corporate camp” at the Delaware Court of Chancery, lead by Chancellor William B. Chandler, III, since apparently he’s doing it all wrong over there:


Jim and Craig did prove that they personally believe craigslist should not be about the business of stockholder wealth maximization, now or in the future. As an abstract matter, there is nothing inappropriate about an organization seeking to aid local, national, and global communities by providing a website for online classifieds that is largely devoid of monetized elements. Indeed, I personally appreciate and admire Jim’s and Craig’s desire to be of service to communities. The corporate form in which craigslist operates, however, is not an appropriate vehicle for purely philanthropic ends, at least not when there are other stockholders interested in realizing a return on their investment. Jim and Craig opted to form craigslist, Inc. as a for-profit Delaware corporation and voluntarily accepted millions of dollars from eBay as part of a transaction whereby eBay became a stockholder. Having chosen a for-profit corporate form, the craigslist directors are bound by the fiduciary duties and standards that accompany that form. Those standards include acting to promote the value of the corporation for the benefit of its stockholders. The “Inc.” after the company name has to mean at least that. Thus, I cannot accept as valid for the purposes of implementing the Rights Plan a corporate policy that specifically, clearly, and admittedly seeks not to maximize the economic value of a for-profit Delaware corporation for the benefit of its stockholders—no matter whether those stockholders are individuals of modest means or a corporate titan of online commerce. If Jim and Craig were the only stockholders affected by their decisions, then there would be no one to object. eBay, however, holds a significant stake in craigslist, and Jim and Craig’s actions affect others besides themselves.


That’s from the newly-released eBay v. Newmark opinion, courtesy of Francis G.X. Pileggi. I leave the reader to their own conclusions as to how a team of corporate law professors were bested in their understanding of fiduciary duties by a comedian.


Before we get to the merits of the eBay opinion, first things first: in additional to being one of the most influential corporate jurists in the country, Chancellor Chandler is known for the hilarious footnotes he inserts into his opinions, like when he relied upon that other famous legal scholar, 50 cent, to define the meaning of “whips.” (I highly recommend that His Honor review the fine fiddy scholarship undertaken by @English50cent.)


This time around, it’s footnote 23:


For example, during negotiations, Price sent an email to eBay executives explaining that Jim and Craig understood that if they insisted eBay sign a non-compete agreement it would be “a defcon 5/deal breaker issue” for eBay. PTX-30 (email from Garret Price to eBay executives (June 24, 2004)). I include this email in the story (1) to illustrate how strongly eBay felt about maintaining the right to compete and (2) because we all appreciate a good reference now and then to the Defense Readiness Condition (“DefCon”) of the armed forces. A good DefCon reference, however, is even better when it makes use of the appropriate DefCon level. Accordingly, Price’s DefCon reference would have been more adept if he had used DefCon 1, which signals “maximum force readiness.” See Description of DefCon Defense Condition, Federation of American Scientists, http://www.fas.org/nuke/guide/usa/c3i/defcon.htm (last visited August 12, 2010); see also WARGAMES (Metro-Goldwyn-Mayer 1983) (Dr. McKittrick: “See that sign up here—up here. ‘DefCon.’ That indicates our current ‘def’ense ‘con’dition. It should read ‘DefCon 5,’ which means peace. It’s still 4 because of that little stunt you pulled. Actually, if we hadn’t caught it in time, it might have gone to DefCon 1. You know what that means, David?” David: “No. What does that mean?” Dr. McKittrick: “World War Three.”). Price, however, referenced DefCon 5, which merely signals “normal peacetime readiness.” I assume, therefore, that Price’s reference to DefCon 5 is not an accurate characterization of what eBay’s negotiation stance would have been had Jim and Craig fired a mandatory non-compete across eBay’s bow.


Now, on to the merits.


In short, eBay purchased a minority stake in craigslist a few years ago, making them one of three shareholders in the company, the other two of which (Jim and Craig) have been pretty much in lockstep since the founding of the company. eBay knew that it was walking into a company with completely different values from its own, a company with a peculiar and iconic corporate culture that forsake typical emphasis on growth and profit maximization for a sense of Internet community and frugality.


Since eBay knew that it was entering into a relationship with majority shareholders who did not share its values, it contracted to protect itself as part of the purchase. I could not help but think while reading the first 40 or so pages of the opinion — in which the relationship sours, and so the majority owners, Jim and Craig, start looking for ways to minimize eBay’s present and future influence and/or encourage them to sell — that the case was very specific to these particular facts, because it revolved around the measures eBay took to protect itself via the shareholder agreement when it bought that minority ownership.


The Chancellor seemed to think the same thing:


Throughout this dispute, I have repeatedly read and listened to what look and sound like breach of contract arguments, which eBay uses not to prove Jim and Craig breached a contract, but rather to prove Jim and Craig breached their fiduciary duties. This has been an odd exercise, and I admit I am puzzled by eBay’s decision not to bring a breach of contract claim or, more promising perhaps, a claim for breach of the implied covenant, considering eBay expended significant effort arguing that the 2008 Board Actions violated both the technical provisions and the spirit of the SPA and the Shareholders’ Agreement. The fact remains, however, that eBay asserted neither a breach of contract claim nor a claim for breach of the implied covenant. Therefore, I make no ruling on whether Jim and Craig breached the SPA, the Shareholders’ Agreement, or the implied covenant of good faith and fair dealing by implementing the 2008 Board Actions. The legal conclusions in this Opinion only relate to whether Jim and Craig breached the fiduciary duties they owe to eBay by implementing the 2008 Board Actions.


So be it. Those Board Actions were:


(1) adopting a rights plan that restricted eBay from purchasing additional craigslist shares and hampered eBay’s ability to freely sell the craigslist shares it owned to third parties, (2) implementing a staggered board that made it impossible for eBay to unilaterally elect a director to the craigslist board, and (3) seeking to obtain a right of first refusal in craigslist’s favor over the craigslist shares eBay owns by offering to issue one new share of craigslist stock in exchange for every five shares over which any craigslist stockholder granted a right of first refusal in craigslist’s favor.


Chancellor Chandler found that the first and third violated Jim and Craig’s fiduciary duties to the company, and so rescinded those actions. It’s a “win” for eBay, sort-of. I bet they would trade winning on the first if they could get the second.


Gordon Smith has an early take on it over at The Conglomerate, viewing it as a minority shareholder oppression case. In the classic minority shareholder oppression case, the more powerful interests are actively trying to drive out the minority shareholder and/or diminish the value of that minority shareholder’s interest. (Here’s one of a trillion law review articles on such oppression.)


I think that’s true for the right of first refusal issue: without without getting into too much detail, the actual working of that right of first refusal would effectively make eBay’s shares worth less than those of Jim and Craig. That is plain-vanilla minority shareholder oppression, and, as a plaintiff’s lawyer, I’m glad to see the impropriety of that recognized even in a corporation with such few shareholders (i.e., three).


But I don’t see the same type of oppression with regard to the rights plan, which is the part that prompted the discussion of the profit-maximization role of corporations. In the rights plan, Jim and Craig set in place a number of ownership protocols that would hinder the ability of eBay to acquire further interests in the event that Jim or Craig died. As Chancellor Chandler characterized it, Jim and Craig were trying “shape the future of the space-time continuum.” The nominal corporate purpose of the rights plan was not to benefit Jim or Craig — they would be dead, of course — but to help preserve the corporate culture at craigslist, since they knew eBay, if it took over, would try to mold craigslist more towards eBay’s short-term profit-maximization culture.


Unlike Chancellor Chandler, I don’t think Jim and Craig did anything wrong by trying to protect the frugal, community-centered corporate culture at craigslist. Although it is certainly reasonable to presume that, in general, a shareholder invests in a for-profit Corporation for the purpose of maximizing their returns, it’s not like eBay bought shares of Halliburton and then watched as Halliburton forsake war in favor of soup kitchens and music programs for kids. It’s not Dodge v. Ford.


Instead, eBay knowingly and voluntarily bought a piece of Jim and Craig’s frugal, community-centered company. As such, the fiduciary duty owed by Jim and Craig to eBay has to be viewed in the context of the company itself – a company renowned for its tiny size, community service mindset, and its refusal to adopt typical principles of short-term profit-maximization.


That is to say, although Franken was right in general about the fiduciary duties corporate directors owe their shareholders — and, undoubtedly, most corporate directors presume that their duty is to maximize profit and most shareholders would sue to enforce that — I think those general principles should be considered in light of the specifics of each company. For better or for worse, eBay bought a piece of craigslist, not some generic ideal of a corporation, and they should be held to that. The idea of an arms’-length transaction among businesses works both ways; craigslist formed a for-profit “Inc.,” but eBay knowingly invested in an “Inc.” with a tangibly different idea of “for-profit.” As Joshua Fershee notes, Jim and Craig credibility testified that craigslist’s community service mission “is the basis upon which our business success rests. Without that mission, I don’t think this company has the business success it has.'” Jim and Craig had good and sound business reasons for their decision to protect the highly successful, if idiosyncratic, corporate culture at craigslist, and that decision should be protected by the business judgment rule.


But what I think should be the law — and what a couple politically-biased professors claim is the law — isn’t necessarily the law. Under eBay v. Newman, the law is as Franken said:  “it is literally malfeasance for a corporation not to do everything it legally can to maximize its profits.” Just ask Jim and Craig; no one disputes it’s their company, but they’re legally prohibited from taking steps to preserve the profit-alongside-community-service mission that’s served them well. Maximize profits, or else.


The impact of this duty-to-maximize-profits stretches far beyond mere investments. Under Citizens United, corporations now have the First Amendment right to influence our fragile democracy however they want, since they’re “people,” just like you and me, albeit profit-maximizing zombies who care not for truth, justice, or the American way.


That being the case, maybe we should spend less time listening to the Hendersons, Bainbridges, and Ribsteins, and more time listening to Lawrence Lessig. Maybe it’s time for us real, living, breathing citizens to stop acting like we’re at DefCon 5.

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 Information were tested in practice. …

Too lengthy to summarize, the full report is available here.

I had my fingers crossed for something better than the electronic discovery report released last year by the American College of Trial Lawyers, which, if adopted, would do little more than encourage frivolous discovery objections.

The Seventh Circuit report is far better; I’ve posted on Scribd a copy of their proposed standing electronic discovery order.

I am concerned, though, by the heavy reliance upon having attorneys meet-and-confer to discuss issues relating to electronically-stored information.

Sometimes attorneys aren’t so candid when it comes to ESI, like in Grider v. Keystone Health:

As stated in Finding of Fact 26, on March 1, 2004 Attorney Summers sent a letter to the court attaching a series of Declarations which affirmatively represented to the court that plaintiffs’ allegations of bundling and downcoding lacked any factual basis, and that those claims were “without merit”. Thereafter, defendant Keystone, through its counsel, Attorney Summers, refused to produce the underlying documents and data compilations which supported the Declarations on a number of frequently changing bases. Initially, Attorney Summers withheld the underlying documents and data compilations because they allegedly constituted lay opinion. Next, Attorney Summers withheld the information on the basis that it was expert opinion and immune from discovery. Finally, Attorney Summers asserted that the underlying information was privileged material pursuant to either the attorney-client privilege or the attorney work product doctrine.

As noted by my colleague Senior United States District Judge J. William Ditter, Jr., “It is not good faith for a lawyer to frustrate discovery requests…with successive objections like a magician pulling another and another and then still another rabbit out of a hat.” Massachusetts School of Law at Andover, Inc. v. American Bar Association, 914 F.Supp. 1172, 1177 (E.D.Pa. 1996). * * * 

The most egregious instance of late production involves Keystone’s late production of claims data. Keystone claimed for years that it was unable to provide claims data. During the same time that Keystone and its counsel were feigning an inability to produce claims data (which it owned according to the ASA agreement with Synertech), Keystone was using claims data for its own self-serving purposes (i.e., the Declarations sent to the court on March 1, 2005). * * *

This case is about claims processing. To deny plaintiffs the data which Keystone owns is equivalent to denying plaintiffs their day in court. Without this data it will be more difficult for plaintiffs to prove their claims. I conclude that this is exactly what defendant Keystone hoped to accomplish by thwarting discovery in this case.

The District Court sanctioned them, but sanction is more the exception than the rule, and the Third Circuit eventually reversed the sanction anyway, even though it found the conduct sanctionable.

Fact is, if defense counsel doesn’t have enough of an incentive to be candid in discussing the availability of ESI — like if they face no real threat of sanction or a spoliation ruling — then odds are they won’t be. 

If the Seventh Circuit wants parties to successfully meet-and-confer, they should require the parties to submit to each other affidavits discussing the available sources of ESI to the best of the party’s information, knowledge and belief. That will mean a lot more, and will be a lot more useful in the litigation, than a phone call or letter from an attorney whose primary goal is to conceal evidence.

"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 a transactional lawyer says to a new client? Let me do the talking.

Once the lawyers get involved, everything goes through a filter. The truth comes out, but in a sanitized and selective manner. Sometimes only part of the truth comes out. Sometimes a little more than the truth comes out.

But it’s not a problem limited to lawyers. It’s a problem of middlemen.

Where there’s a middleman, there’s deniability. There’s confusion. There’s misunderstandings. There’s excuses. There’s a way for one side to throw its hands up and say, hey, it wasn’t me. There was a middleman. Something went wrong in the middle.

And that seems to be the case with two hot stories lately, the SEC’s enforcement action against Goldman Sachs and the "lost" prototype iPhone that Gizmodo disassembled on their webpage.

Take your pick for sources on both stories. Felix Salmon has a lot to say on Goldman Sachs. Daring Fireball has a lot to say on the iPhone saga.

Don’t let the volume of paper produced about these stories fool you: both stories are very simple.

Goldman Sachs was paid $15 million to push a crummy deal, which they did by concealing how the whole deal had been structured by someone betting against it, someone who walked away with $1 billion when all was said and done. Gawker Media, publisher of Gizmodo, paid $10,000 to the "finder" of a "lost" prototype iPhone.

Don’t blame them, of course. Something went wrong in the middle.

Does the law provide for relief when that happens?

Sometimes so, sometimes not. There’s no unambiguous rule that says Gawker is, or is not, liable for theft or that Goldman Sachs is, or is not, liable for fraud when they filter the deception through a middleman.

Answering that question is why we have lawyers and courts.

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 symptom-causing NF-kB activity.  They appear simply to have discovered that NF-kB existed and guessed that somehow bringing it to heel would help sick people feel better.

Ariad, MIT, Whitehead, and Harvard urged that the first paragraph of section 12 requires a patent to say only enough to “enable” an in-the-know person to build something that makes NF-kB curtail its hurtful conduct inside human cells.

I knew some of the folks at those places were smart, but I never realized they were so smart they didn’t have to actually invent anything to get a patent. Instead, they can just describe a problem and then claim a patent over someone else’s solution.

To call the case “significant” is an understatement. Among those submitting amicus briefs to the Federal Circuit were:

  • The University of California
  • Federal Circuit Bar Association
  • Monsanto Company
  • GlaxoSmithKline
  • Microsoft Corporation
  • Google Inc.
  • Verizon Communications, Inc.

…and a dozen other schools and technology, pharmaceutical, and research companies who make—or pay—billions of dollars related to broad patents that claim to cover discoveries, but not necessarily inventions, in scientific fields.

The Federal Circuit, however, is even smarter still:

[A] separate requirement to describe one’s invention is basic to patent law. Every patent must describe an invention. It is part of the quid pro quo of a patent; one describes an invention, and, if the law’s other requirements are met, one obtains a patent. The specification must then, of course, describe how to make and use the invention (i.e., enable it), but that is a different task. A description of the claimed invention allows the United States Patent and Trademark Office (“PTO”) to examine applications effectively; courts to understand the invention, determine compliance with the statute, and to construe the claims; and the public to understand and improve upon the invention and to avoid the claimed boundaries of the patentee’s exclusive rights.


Perhaps there is little difference in some fields between describing an invention and enabling one to make and use it, but that is not always true of certain inventions, including chemical and chemical-like inventions. Thus, although written description and enablement often rise and fall together, requiring a written description of the invention plays a vital role in curtailing claims that do not require undue experimentation to make and use, and thus satisfy enablement, but that have not been invented, and thus cannot be described. For example, a propyl or butyl compound may be made by a process analogous to a disclosed methyl compound, but, in the absence of a statement that the inventor invented propyl and butyl compounds, such compounds have not been described and are not entitled to a patent.

Ariad Pharmaceuticals, Inc. v. Eli Lilly and Co., pp. 12, 26.

Specific to the patent at issue,

The ’516 patent discloses no working or even prophetic examples of methods that reduce NF-κB activity, and no completed syntheses of any of the molecules prophesized to be capable of reducing NF-κB activity. The state of the art at the time of filing was primitive and uncertain, leaving Ariad with an insufficient supply of prior art knowledge with which to fill the gaping holes in its disclosure. See Capon, 418 F.3d at 1358 (“It is well-recognized that in the unpredictable fields of science, it is appropriate to recognize the variability in the science in determining the scope of the coverage to which the inventor is entitled.”).

Whatever thin thread of support a jury might find in the decoy-molecule hypothetical simply cannot bear the weight of the vast scope of these generic claims. … Here, the specification at best describes decoy molecule structures and hypothesizes with no accompanying description that they could be used to reduce NF-κB activity. Yet the asserted claims are far broader.

Thus, the patent was invalid.

The Federal Circuit’s opinion, though, goes much farther than the facts of the case, with a broad rule for future “discovery” patents:

Ariad complains that the doctrine disadvantages universities to the extent that basic research cannot be patented. But the patent law has always been directed to the “useful Arts,” U.S. Const. art. I, § 8, cl. 8, meaning inventions with a practical use, see Brenner v. Manson, 383 U.S. 519, 532-36 (1966). Much university research relates to basic research, including research into scientific principles and mechanisms of action, see, e.g., Rochester, 358 F.3d 916, and universities may not have the resources or inclination to work out the practical implications of all such research, i.e., finding and identifying compounds able to affect the mechanism discovered. That is no failure of the law’s interpretation, but its intention. Patents are not awarded for academic theories, no matter how groundbreaking or necessary to the later patentable inventions of others. “[A] patent is not a hunting license. It is not a reward for the search, but compensation for its successful conclusion.” Id. at 930 n.10 (quoting Brenner, 383 U.S. at 536). Requiring a written description of the invention limits patent protection to those who actually perform the difficult work of “invention”—that is, conceive of the complete and final invention with all its claimed limitations—and disclose the fruits of that effort to the public.

That research hypotheses do not qualify for patent protection possibly results in some loss of incentive, although Ariad presents no evidence of any discernable impact on the pace of innovation or the number of patents obtained by universities. But claims to research plans also impose costs on downstream research, discouraging later invention. The goal is to get the right balance, and the written description doctrine does so by giving the incentive to actual invention and not “attempt[s] to preempt the future before it has arrived.” Fiers, 984 F.2d at 1171. As this court has repeatedly stated, the purpose of the written description requirement is to “ensure that the scope of the right to exclude, as set forth in the claims, does not overreach the scope of the inventor’s contribution to the field of art as described in the patent specification.” Rochester, 358 F.3d at 920 (quoting Reiffin v. Microsoft Corp., 214 F.3d 1342, 1345 (Fed. Cir. 2000)). It is part of the quid pro quo of the patent grant and ensures that the public receives a meaningful disclosure in exchange for being excluded from practicing an invention for a period of time. Enzo, 323 F.3d at 970.

Id., pp. 28-29 (emphases added).

I think the Federal Circuit made the right decision both on the statute and on the policy—there’s a substantial consensus today that our patent system is unjustly overprotective in many areas, including biochemical research—but the decision is not without some costs. As the Circuit recognized with the “loss of incentive” part above, it was already hard for scientists to justify to non-scientist corporate managers or school trustees the value of basic research without referencing the financial upside of patentable discoveries. Now that will be even harder, since the financial upside is less lucrative and less secure.

That said, basic research progressed well enough for hundreds of years without the over-patenting we have today, and even a small increase in government funding could likely make up for any new losses due to reduced patentability. Thus, on the whole, the case is a victory for law and for science.

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

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 a motion under Rule 12(b)(6) or 12(c) that has not been deferred until trial, the claim sought to be dismissed includes an allegation specifically identified as provided in Rule 11(b)(3) as likely to have evidentiary support after a reasonable opportunity for discovery, the court must either (1) assume the truth of the allegation, or (2) decide whether the allegation is likely to have evidentiary support after a reasonable opportunity for discovery. In deciding whether an allegation is likely to have evidentiary support after a reasonable opportunity for discovery, the court must consider the parties‘ access to evidence in the absence of discovery and state on the record the reason for its decision.

If the court decides that the allegation is likely to have evidentiary support after a reasonable opportunity for discovery, it must allow for that discovery, under the standards of Rule 26, and deny the motion to dismiss. If the court decides that the allegation is not likely to have evidentiary support after a reasonable opportunity for discovery, the court must treat the motion as one for summary judgment under Rule 56, and provide all parties a reasonable opportunity to present all the material that is pertinent to the motion.

Again, eminently reasonable. Such an addition would immediately focus litigation on the real issues, thereby (1) enabling plaintiffs to conduct discovery into the most important areas while also (2) empowering defendants to have cases dismissed—prior to full discovery—if the plaintiff won’t be able to prove an essential element of their case.

How could anyone think that was unfair?

The defense bar champions at Drug and Device Law tried to manufacturer an objection, but the argument degenerated into blather and insults. They barely even mention the details of Hartnett’s proposal. Instead, they summarily dismissed him with:

Most of these proposals (except Professor Burbank’s) actually go far beyond Twombly/Iqbal and would overrule all or most of the prior precedent we cited above. That strikes us as facially overkill and indicative of unexpressed (and in some cases, ulterior) motives at work.

We understand that a lot of academics feel that they have to help their students get jobs, or else eventually they won’t have jobs either.  Thus, they tend to support anything and everything that results in more, rather than less, litigation.

Oh, snap.

Then again, an accusation of "ulterior motives" probably would have meant more if it didn’t come from someone paid by the hour to ensure corporations pay as little as possible to the people and families they hurt.

Frankly, reading through the post, I can’t help but wonder if Beck et al. indeed have some "ulterior motive" in misrepresenting how defense lawyers use Ashcroft v. Iqbal in their practice:

So when we get a complaint, we look to see whether, there’s at least one actual fact pleaded that supports each essential element of a cause of action.  A plaintiff can plead more if s/he so pleases, but there has to be at least one – otherwise we’ll probably file a Twombly/Iqbal motion.

The implied concession there—that they won’t file a motion to dismiss if "there’s at least one actual fact pleaded that supports each essential element of a cause of action"—is rubbish. They don’t run a charity over there at Dechert: if you file a case against one of their clients, they will come up with any argument they can to get it dismissed.

And that’s where the problem with Twombly / Iqbal—really, just Iqbal—comes in. Every time a case is filed today, the defendant inevitably files a motion to dismiss claiming that the "actual facts" plead aren’t "facts" at all, they’re "conclusions," and so are not, under Iqbal, entitled to an assumption of truth.

What’s the difference between a "fact" and a "conclusion?" Merriam-Webster says:

fact: an actual occurrence

conclusion: a reasoned judgment

Let me ask you, Dear Reader: who really won more votes in Florida in 2000, Bush or Gore?

Is your answer a "fact" or a "conclusion?" Do you know it as an actual occurrence, or did you make a reasoned judgment?

The problem with Iqbal is that it instructs courts—at the very beginning of the lawsuit, when they have nothing in front of them but a "short and plain" complaint—to perform a wildly subjective analysis about which allegations are merely "conclusions" and which of the non-conclusory allegations are "plausible." 

There’s nothing new about that problem. It’s the same problem that prompted Rule 8—the Rule supposedly interpreted by Iqbal—to be enacted in the first place:

You used to have the requirement that a complaint must allege the “facts” constituting the “cause of action.” I can show you thousands of cases that have gone wrong on dialectical, psychological, and technical argument as to whether a pleading contained a “cause of action”; and of whether certain allegations were allegations of “fact” or were “conclusions of law” or were merely “evidentiary” as distinguished from “ultimate” facts. In these rules there is no requirement that the pleader must plead a technically perfect “cause of action” or that he must allege “facts” or “ultimate facts.”

Rules of Civil Procedure for the District Courts of the United States: Hearings Before the H. Comm. on the Judiciary, 75th Cong. 94 (1938) (statement of Edgar B. Tolman, Secretary of the Advisory Committee on Rules for Civil Procedure Appointed by the Supreme Court); quoted by p.4 of Professor Stephen Burbank’s testimony before the Senate.

The whole point of Rule 8 was to ensure that the right to civil justice didn’t turn on metaphysical word games.

And yet we’re supposed to come full circle because, as Beck et al. continue,

Twombly/Iqbal are about reining in the cost of litigation; we might feel differently about Professor Hartnett’s proposal if it required payment of all a defendant’s costs of “appropriate” (the Article’s term) discovery – should designated allegations nonetheless turn out to be unfounded.  But under the proposal as offered, there’s no penalty for over-designation.  If it’s one thing that the fifty-year life span of Conley established, it’s that unrestrained pleading imposes huge discovery costs on defendants.  Even Professor Burbank (who really tried hard) was reduced to relying upon a single study of tiny cases in which even then 25% of the parties believed the process was too expensive.  The excessive cost of modern discovery is simply not a issue capable of dispute any longer.

At least Burbank actually cited something. Defense lawyers think they’re entitled to assert the cost of discovery—a cost due primarily to their own practice of relentlessly frustrating discovery at every turn—is "excessive" through sheer ipse dixit.

Sounds like a "conclusion" to me, not an "actual fact."

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 an attempt by Televisa to help JP Morgan syndicate the loan fell through, JP Morgan then turned to Inbursa, Carlos Slim’s bank.

This was not an obvious choice from the point of view of serving one’s client. Slim and Cablevisión compete fiercely in the telecommunications space, where Slim is the dominant monopolist and Cablevisión is selling telephony and internet access in competition with him. And the rivalry is all the tougher due to the history between the two groups: Slim used to be a major shareholder in Televisa, and to this day Inbursa owns a 22% stake in Cablevisión.

Now there were two ways of selling this loan: JP Morgan could either assign it to Inbursa, which would require Cablevisión’s permission, or else it could participate it to Inbursa, which would not. At first, JPM tried to assign the loan, but unsurprisingly Cablevisión refused to grant their permission for that deal to happen.

You can imagine what happened next: JP Morgan dressed up the "assignment" as a "participation." As Judge Rakoff described it in his order,

JP Morgan, acting in bad faith, used the guise of a purported “participation” to effectuate what is in substance a forbidden assignment, with unusual provisions demanded by Inbursa that are calculated to give Inbursa exactly what the assignment veto in the Credit Agreement was designed to prevent. JP Morgan thereby violated, at a minimum, the covenant of good faith and fair dealing automatically implied by law in the Credit Agreement…

Televisa’s request for a preliminary injunction halting the agreement was thus granted.

Salmon wonders what JPMorgan’s response to all these allegations is:

So for JP Morgan’s side of the story, all I have to go on is their 40-page memorandum of law in the case, which is quite narrowly legalistic, which was roundly rejected by Rakoff, and which obviously can’t respond to Rakoff’s ruling since it was filed before Rakoff made his ruling.

Since JPMorgan moved for summary judgment pursuant to Fed. R. Civ. P. 56, they, like Televisa, were entitled to submit affidavits in support of their position, and it appears they submitted declarations from "Sheldon L. Pollock" and "Jaquelina Truzzell." Both declarations have been unsealed by Judge Rakoff’s order, but neither is on the docket.

I doubt the declarations say much; JPMorgan’s memorandum of law primarily references the Pollock and Truzzell declarations when discussing side matters, like telephone calls and Televisa’s motives for opposing the assignment / participation. Truzzell apparently affirms there are "no side agreements" with Inbursa and that JPMorgan would not release "confidential" information, but that’s it. There’s nothing about how JPMorgan came to participation terms with Inbursa that, at least on their face, entitle Inbursa to a treasure trove of information about Televisa, far more than provided by JPMorgan’s standard participation agreement.

Which I find telling. Though the standard response of most defendants is — for tactical reasons like avoiding getting pinned down to a particular version of events — to "deny and delay" rather than to come forth with an affirmative opposition, under the facts here, JPMorgan really needed to make a better showing. Here’s the full quote (excerpted above) from Judge Rakoff’s order:

In opposing a preliminary injunction, JPMorgan argues that the Participation Agreement is technically consistent with the Credit Agreement. Superficially, this may be correct. For example, with respect to Cablevisión’s concerns about confidential information, the Credit Agreement permits disclosure of information about the borrower, not just to assignees (who can be vetoed) but also to participants (who cannot), provided that such information is given on a confidential basis. Credit Agreement § 9.16(f)(i). This includes “all information received from the Borrower . . . relating to the Borrower, any of its Related Parties or their respective businesses.” Id. § 9.16. Similarly, there is no express restriction in the Credit Agreement on providing a participant with its pro-rata share of fees received by the lender or an option of first refusal for any further transfer of the loan. Finally, under the Credit Agreement, assignment of the loan without borrower consent is expressly permitted when there is an Event of Default. Id. § 9.04(b)(i).

But this narrow focus obscures the gist of Cablevisión’s argument, which is that JPMorgan, acting in bad faith, used the guise of a purported “participation” to effectuate what is in substance a forbidden assignment, with unusual provisions demanded by Inbursa that are calculated to give Inbursa exactly what the assignment veto in the Credit Agreement was designed to prevent. JPMorgan thereby violated, at a minimum, the covenant of good faith and fair dealing automatically implied by law in the Credit Agreement.

The Court agrees.

JPMorgan could have done more factually, rather than just legally, to rebut the appearance of bad faith. But they didn’t; they just argued that they were entitled to do what they did, rather than show that their conduct with Inbursa was appropriate.

Such silence could be, in part, an attempt by JPMorgan to protect Inbursa’s confidences, which arguably would have been appropriate. (I say "arguably" because the totality of the circumstances here — primarily Inbursa’s attempt to negotiate terms more favorable than those typically provided by a participation agreement — imply that Inbursa has waived its right to keep those discussions confidential from Televisa.) But there’s nothing on the docket reflecting an attempt to have Judge Rakoff review any pertinent materials in camera, and so there’s no reason for us to speculate that JPMorgan’s silence was a product of confidentiality.

It thus may be more appropriate to speculate that JPMorgan’s silence was the product of not having a good defense. Again: facts win cases. "Technically consistent" legal arguments don’t.

[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 Airgas’s finances isn’t enough, since a firewall within Cravath can likely cure that problem.

UPDATE II: As predicted, the Eastern District of Pennsylvania declined to enter an injunction against Cravath, and the Delaware Chancery Court did not disqualify them.]

As has been reported all over the legal media,

Industrial gas producer Airgas filed suit against Cravath, Swaine & Moore on Friday over the firm’s role as legal adviser to rival Air Products on that company’s $5.1 billion bid for Airgas.

… Air Products filed a complaint on Thursday in Delaware’s Chancery Court against Airgas, claiming that the smaller company improperly blocked its board of directors from considering previous Air Products takeover offers. Cravath litigation partners Francis Barron, David Marriott and Gary Bornstein are representing Air Products in the Delaware litigation along with local counsel Kenneth Nachbar (he of sports gambling notoriety) and Jon Abramczyk from Morris, Nichols, Arsht & Tunnell. (Click here for the Chancery Court complaint, courtesy of The Times‘ Dealbook.)

Airgas responded by retaining Cozen O’Connor chairman Stephen Cozen, litigation chair Jeffrey Weil and litigation partner Thomas Wilkinson Jr., for a civil suit against Cravath in state court in Pennsylvania. In the suit, Airgas claims that Cravath has a conflict of interest and breached its fiduciary duty by representing Air Products because it previously advised Airgas on several financings. According to Airgas’ complaint against Cravath, the company has had a client relationship with the firm for 10 years and has paid Cravath about $2 million, including a $320,000 payment last October.

There’s an obvious question dangling over the Pennsylvania suit filed by Airgas: what basis — or power — does a state court in Pennsylvania have to preclude a New York law firm from representing a Delaware-registered company in Delaware state court litigation against another Delaware-registered company?

Unsurprisingly, that’s just what Philadelphia Court of Common Pleas (Commerce Court) Judge Albert Sheppard Jr. wondered before denying Airgas’ petition for a temporary restraining order:

In essence, I would be saying to a lawyer you can’t go to Delaware and represent your client. I find that difficult. I don’t want to do that.

Judge Sheppard only had it for two weeks, though, since Cravath, like virtually every out-of-state defendant, promptly removed the case to Federal court, i.e. the Eastern District of Pennsylvania, where it was assigned to Judge Eduardo Robreno (whose work in the Philadelphia Inquirer bankruptcy I’ve covered before).

Cravath (represented by a team at Conrad O’Brien*) has responded to the suit and has asked Judge Robreno to abstain from hearing the case at all:

First, whatever this Court may ultimately decide with respect to Airgas’s claim for money damages, Airgas’s request for a preliminary injunction is the functional equivalent of a motion to disqualify Cravath from appearing before the Delaware Chancery Court. With all due respect, Cravath submits that a motion precluding counsel from appearing in Delaware Chancery Court is more appropriately decided by Chancellor William B. Chandler III, who presides over the firstfiled Delaware litigation. Just as this Court has full authority over proceedings here, judicial comity warrants according Chancellor Chandler due authority over proceedings in his courtroom. …

Second, the Delaware Chancery Court is aptly suited to decide the key issue presented by Airgas’s petition to this Court—whether Cravath should be disqualified. Indeed, the dispute concerning Cravath’s ability to represent Air Products is intertwined with the merits of the (firstfiled) Delaware litigation. …

Third, whereas this Court’s ruling on Airgas’s petition for preliminary relief would be, by definition, provisional, the Delaware Chancery Court’s ruling on the question of whether Cravath should be disqualified will be a final decision on the merits.

(From Cravath’s brief, available on RECAP.)

It’s hard to argue with that; whatever the merits of the conflict-of-interest allegations, it seems they all relate to the Delaware litigation and so should be decided there.

Of course, there’s a reason Cravath wants the case decided in Delaware’s Chancery Court (and why Airgas wants it decided elsewhere). As Francis G.X. Pileggi notes:

[Airgas’] separate suit alleging a conflict was filed in Philadelphia. One might speculate that the suit was not filed in Delaware and it was not filed as a motion to disqualify, because the Delaware decisions recently have not granted many motions to disqualify. See, e.g., cases summarized on this blog here.

Indeed, one might speculate that. More on that in a moment.

Back in Delaware, it seems a war of correspondence has broken out:

Airgas (which has retained Wachtell, Lipton, Rosen & Katz) began the exchange of correspondence Monday, when it sent a letter to Chancellor William Chandler at Delaware’s Court of Chancery … In its Monday letter to Chandler, Airgas argues that a Pennsylvania courtroom is the proper place for the Cravath hearing. In response, Air Products and local counsel Kenneth Nachbar of Morris, Nichols, Arsht & Tunnell drafted their own letter to Chandler, urging him to decide on Cravath’s fate in Delaware and accusing Airgas of trying to "circumvent" Chandler’s authority by suing in Pennsylvania.

Airgas also has enlisted a legal ethics expert who has issued an opinion letter in which he claims Cravath was working under "a clear and serious conflict of interest" while it was helping Air Products formulate its takeover bid last fall, according to a copy of the letter obtained by The Am Law Daily. In his letter, Geoffrey Hazard Jr., a professor at the University of Pennsylvania Law School, says Cravath … violated the so-called "hot potato" rule, which holds that a firm cannot get out of a conflict simply by dropping one client on short notice, Hazard wrote.

Like I wrote before, the hot potato rule lives. Here’s a recent recitation of the rule:

Courts that have considered the issue have held that a firm will not be allowed to drop a client in order to shift resolution of the conflicts question from Rule 1.7 dealing with current clients, to the more lenient standard in Rule 1.9 dealing with former clients.

El Camino Res., LTD. v. Huntington Nat’l Bank, No. 1:07-cv-598, 2007 U.S. Dist. LEXIS 67813, at *39–40 (W.D. Mich. Sept. 13, 2007).

On the surface, that’s not good for Cravath — if Chancellor Chandler applies a similar analysis, then Cravath will be evaluated as if it was simultaneously representing Airgas and Air Products on both sides of the litigation, which is expressly prohibited by the Delaware, Pennsylvania and New York rules.

But the final analysis is a practical one:

The finding of an ethical violation, however, does not automatically require disqualification. The court should order disqualification only where some specifically identifiable impropriety has actually occurred and the balance of relevant factors requires vindication of the integrity of the legal profession over defendant’s interest in retaining counsel of its choice.


Returning again to why Cravath wants the issue decided in Delaware by Chancellor Chandler, it bears mention here that Chancellor Chandler took a strongly disqualification-unfriendly view in a similar case a year ago, in which Dow Chemical attempted to disqualify Wachtell from representing Rohm and Haas:

I am not persuaded that Wachtell’s access to this information will materially advance Rohm and Haas’s position or undermine the fair and efficient administration of justice. Dow’s defense to specific performance is that conditions in the market and within Dow have changed significantly since December 2008 and that it is no longer feasible for the merger to close. Dow has failed to convince me that the information Wachtell had access to regarding Dow’s strategies and asset values in 2006 and 2007 will substantially advance the interest of Rohm and Haas in this litigation. Additionally, Wachtell has assured the Court that its attorneys who obtained confidential Dow information have not and will not share Dow’s client confidences with the Wachtell attorneys working on this matter. While Dow is correct that the ethical rules impute knowledge of one attorney to other attorneys in the firm, the issue before the Court is not whether there was a violation of the ethical rules. To justify disqualification, the Court must find that allowing the representation to continue would threaten the fair and efficient administration of justice, a threat that is greatly reduced by a credible representation to the Court that the firm will ensure that the attorneys working on this matter do not have access to Dow’s client confidences. Dow has failed to point to information or confidences obtained by Wachtell in its 2006-2007 work for Dow that will have a material influence on the proceedings before me today.

Rohm and Haas Co. v. Dow Chem. Co., No. 4309-CC, 2009 WL 445609, at *3 (Del. Ch. Feb. 12, 2009)(also courtesy of Pileggi).

Truth be told, there’s not much distinguishing the Rohm and Haas v. Dow situation from the present case with Cravath, except for the "hot potato" rule aspect, given how Cravath’s work for Airgas was much more recent than Wachtell’s work was for Dow. Indeed, it seems Cravath’s work for Airgas unambiguously overlapped its work for Air Products.

As noted above, though, a mere violation of the rules isn’t enough; the question is what prejudice the former client will suffer and if that prejudice can be avoided. Cravath’s work for Airgas was comparatively small, and if Cravath sets up an ethical firewall that keeps the former Airgas attorneys away from the Air Products lawsuit, that will likely be enough to satisfy Chancellor Chandler.

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

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 that meritorious cases will be dismissed. Either way represents error, and neither error is inherently better than the other. Indeed, given the enormous transaction costs that litigation entails, Type II errors (false negatives) are probably preferable to Type I errors (false positives) from a purely economic perspective.

From a "purely economic perspective" it is better if corporations stop wrongfully causing damage in the first place, which they will only do if they have an economic incentive like the threat of legal liability.

But there’s a bigger problem with Beck and Herrmann’s argument.

It is an "error" when a court dismisses a meritorious case. It is a particularly unjust, unfair, and avoidable "error" when a court dismisses a meritorious case prior to any discovery.

It is not, however, an "error" for a court to refuse to dismiss a case that may be unmeritorious.

Why not? Because the case may be meritorious and, if it is not, the defendant has four more opportunities to resolve the case favorably by testing the merits of plaintiff’s claim: judgment on the pleadings, summary judgment, trial, and post-trial relief. That is to say, even after the motion to dismiss, Plaintiff’s claims will be assessed, re-assessed, re-re-assessed, then re-re-re-assessed. Then there’s an appeal to re-re-re-re-assess each and every element of plaintiff’s claims and each and every element of plaintiff’s damages.

When a court declines to dismiss an unmeritorious case, there is ample room for error-correction down the road to ensure plaintiff’s claims have merit. It’s why we have a civil justice system: to provide a thorough airing and evaluation of disputes.

When a court dismisses a meritorious case, however, the only error-correction is a single appeal that will be evaluated under the same unfair anti-plaintiff standard established by Iqbal.

Beck and Herrmann have it exactly backwards: there is "no legitimate basis" for not favoring plaintiffs when interpreting pleading standards. Their "neutral" interpretation of pleading rules is not "neutral" at all, but rather a "normative view" that plaintiffs are not entitled to the same error-correcting procedures to which defendants are entitled.

A "just system" wouldn’t pick defendant’s side in advance.