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In my last post about sexual assault myths, I referenced a case involving three sexual assault convictions overturned by the Pennsylvania Superior Court. (The case is formally Commonwealth v. Claybrook; here’s the Philadelphia Inquirer’s write-up.) The jury convicted and the trial judge denied the defendant’s motion for a new trial, but the Superior Court reversed, holding that the convictions were “contrary to the weight of the evidence,” and so remanded the case for a new trial. The prosecution appealed to the Pennsylvania Supreme Court, which is now considering the case.

This sort of issue is a bit distant from my normal work on civil litigation, but it implicates a fundamental principle of how our courts are supposed to function, hence my interest. In general, appellate courts exist to review legal issues, not factual issues. They don’t hear any testimony. They don’t see any witnesses shift and pivot in their seat, fumble with their words, look to their lawyer for help, or observe any other non-verbal cues that we associate with a person lying, being confused, or telling the truth. They read a cold transcribed record, where “I shot the clerk” may mean something else entirely.

As a civil lawyer, I find it strange to see an appellate court ever overrule a jury’s factual findings where those factual findings were also sustained by the trial judge. In civil trials, unless the trial judge made a legal error — like allowing in prejudicial evidence, excluding probative evidence, or giving a flawed jury instruction — then the verdict will almost always stand on appeal. The closest we have in civil litigation to “weight of the evidence” is “judgment notwithstanding the verdict,” which ends the case in favor of the party that lost in front of the jury, but that’s essentially reserved for the trial court to decide, not the appellate court, and the standard is astonishingly strict:

In reviewing the propriety of an order granting or denying judgment notwithstanding the verdict, we must determine whether there was sufficient competent evidence to sustain the verdict. We view the evidence in the light most favorable to the verdict winner and give him or her the benefit of every reasonable inference arising therefrom while rejecting all unfavorable testimony and inferences. Moreover, a judgment n.o.v. should only be entered in a clear case and any doubts must be resolved in favor of the verdict winner. Finally, a judge’s appraisement of evidence is not to be based on how he would have voted had he been a member of the jury. A court may not vacate a jury’s finding unless the evidence was such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant.

Birth Center v. St. Paul Companies, Inc., 787 A. 2d 376 (Pa. 2001)(quotations and citations omitted). In the Birth Center case, I hasten to add, the trial court granted judgment n.o.v., overturning the jury’s verdict, but the Pennsylvania Supreme Court re-instated the jury’s verdict. It’s the jury’s province, not the court’s, to decide the facts. Like I said, outside of reversals for purely legal issues, judgment n.o.v. is exceedingly rare.

In criminal trials, however, there’s the “weight of the evidence” challenge, which I can only describe as a request for a do-over. In contrast to a motion for judgment n.o.v. in the civil context, a defendant’s motion for a new trial on the weight of the evidence allows the trial court to independently review the facts decided by the jury, with a far less strict standard than “no two reasonable minds could disagree:”

A motion for new trial on the grounds that the verdict is contrary to the weight of the evidence, concedes that there is sufficient evidence to sustain the verdict. Thus, the trial court is under no obligation to view the evidence in the light most favorable to the verdict winner. An allegation that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. A trial judge must do more than reassess the credibility of the witnesses and allege that he would not have assented to the verdict if he were a juror. Trial judges, in reviewing a claim that the verdict is against the weight of the evidence do not sit as the thirteenth juror. Rather, the role of the trial judge is to determine that notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.

Commonwealth v. Widmer, 744 A. 2d 745 (Pa. 2000)(quotations and citations omitted).

Justice demands we have a check on the jury system like that. Justice is blind, but juries sometimes are not — sometimes they’re genuinely confused, given the complicated way in which trials are run — and the trial judge stands as a bulwark against manifest injustices. The “weight of the evidence” challenge was perhaps most famously granted by Judge James Edwin Horton in the Scottsboro Boys re-trial, where he overturned the jury’s conviction of the young men for rape. (Judge Horton knew the ruling would cost him his re-election, and it did.) 
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There’s been a wave of antitrust class actions predicated on patent misuse by pharmaceutical companies of the past decade. The troublesome Illinois Brick decision prevents “indirect purchasers” — which means you, me, and our health insurance plans — from bringing federal antitrust claims, so plaintiffs’ lawyers have had to get creative in use of state

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:

10-263
SONY MUSIC ENTERTAINMENT, ET AL. V. STARR, KEVIN, ET AL.
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). 


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