- Does new Obama directive gut 1996 welfare reform law? [Mickey Kaus ("in 2008, Barack Obama didn’t dare suggest that he wanted to do what he has done today"), Bader]
- Ringling Bros. v. animal rights activists: court throws out champerty claim, allows racketeering claim to proceed [BLT]
- Iqbal, Twombly, and Lance Armstrong [DeadSpin, Howard Wasserman/Prawfs and more]
- Abuse claims: “Retain the statute of limitations” [New Jersey Law Journal editorial] Insurance costs squeeze NYC social services working with kids, elderly [NYDN]
- Court upholds sanctions vs. “staggering chutzpah” copyright lawyer Evan Stone [Paul Alan Levy, Eugene Volokh, earlier here and here]
- Court says board members of NYC apartment co-ops can be sued personally over alleged bias [Reuters]
- “FASB retreats from disastrous litigation disclosure requirement proposal” [Alison Frankel, Reuters via PoL, earlier]
Posts tagged as:
pleading
- Government’s hospital care guidelines may be fueling dangerous overuse of antibiotics [White Coat] FDA says fewer drugs are in shortage [Reuters, earlier here, etc.]
- “Post-tort-reform Texas doctor supply” [Ted Frank/PoL and commenters] “Change in Procedures Lets Medical Malpractice [Insurance] Industry Thrive” [PC 360]
- Forcing companies to make politicized disclosures to customers implicates First Amendment [Hans Bader on HHS "must credit ObamaCare" reg]
- Iqbal and Twombly SCOTUS decisions on pleading have helped protect pharmaceutical defendants from flimsily based suits [James Beck, who has changed law firms to Reed Smith]
- How accurate is hospital data coding? Ask thousands of pregnant British men [Nigel Hawkes via Flowing Data]
- Class-action-fed boom in Medicaid dentistry + “let’s put docs in schools” idea = scope for horrific abuse, no matter how it’s financed [Bloomberg via Jesse Walker]
- Suits blaming obstetricians for cerebral palsy rack up $78 million win in Philadelphia, $74 million in California [Legal Intelligencer, Cal Coast News]
- Ninth Circuit: on reflection, let’s not seize control of VA mental health programs [AP, earlier here, etc.]
- NYC: “Lawsuit Blames Apple’s Glass Doors for Plaintiff’s Broken Nose” [Lowering the Bar, CBS New York]
- Some who pushed enhanced punishment for Dharun Ravi may now be doubting they really want it [Scott Greenfield, earlier here, etc.]
- NYT editorial on FMLA state immunity is as bad as anyone had a right to expect [Whelan]
- “Pleading, Discovery, and the Federal Rules: Exploring the Foundations of Modern Procedure” [Martin Redish, FedSoc "Engage"] Summary of important ’09 Redish book Wholesale Justice calling into question constitutionality of class actions [Trask]
- Would trial-by-DVD be so very wrong? [James Grimmelmann, Prawfs]
- Contested memorabilia: lawsuits filed over estate of gay rights pioneer Franklin Kameny [MetroWeekly]
- Feds’ “distracted driving” guidance could impair usefulness of car navigation systems [Cunningham/CNet, earlier]
- Illinois now requires showing of ID, signing of log to buy drain cleaner. So long as you’re not trying to vote! [Consumerist via @amyalkon]
- Tribute to no-longer-anonymous Ken White of Popehat and his work defending bloggers from legal threats [Scott Greenfield; earlier; Ken's defense in Maryland of blogger Aaron Worthing; new case of science blogger in Texas]
- Politicos mobilize against risk that Wal-Mart will bring fresh produce choices to Harlem [Greg Beato] India frets about whether to allow chain stores, recapitulating a debate U.S. once went through [Tabarrok, MR]
- Colorado legislators honored at a luncheon where I spoke [CCJL]
- HHS launches initiative to audit health providers for compliance with HIPAA data privacy law, and many are unprepared [American Medical News, Dana Thrasher, Dom Nicastro/HealthLeaders Media]
- New scholarship on effects of Twombly/Iqbal [Drug and Device Law series first, second, third, CL&P]
- Congratulations to the outstanding Abnormal Use for winning the ABA’s “Blawg 100” vote for best torts blog; we feel pretty good about placing third without mounting a campaign. While exploring that site, don’t miss its stellar coverage of the tendentious documentary “Hot Coffee”.
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- Behind the antitrust assault on Google [Jerry Brito, Josh Wright, more]
- Rapid rise of lawsuit lenders [WSJ] And a Searle Civil Justice Institute conference on third party financing of litigation;
- More law firms muscle into class action against e-book publishers [PaidContent] Fifth Circuit questions cy pres [Trask] And a new edition of the Federalist Society’s Class Action Watch is out;
- When the house painters announce they’re not leaving: “Britain plans to tighten anti-squatter laws” [NYT]
- “Courts Call Out Copyright Trolls’ Coercive Business Model, Threaten Sanctions” [EFF] “Righthaven’s Copyright Trolling is a Bankrupt Idea” [Cit Media Law] More: Vegas Inc.
- “Twombly is the Logical Extension of the Mathews v. Eldridge Test to Discovery” [Andrew Blair-Stanek via Volokh, Frank] “Four more reasons to love TwIqbal” [Beck] “O’Scannlain says 9th Circ has adopted ‘Iqbal lite’ pleading standard, ‘Same insufficient complaints, fewer dismissals!’” [@ScottKGraham on dissent in Starr v. County of Los Angeles, PDF]
- Florida farms sell raw milk as (wink) “pet food” [Sun-Sentinel]
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The Supreme Court’s admirable Twombly and Iqbal precedents give a federal district court the means to turn back a shotgun lawsuit against a horde of undifferentiated defendants [McFarland v. APP Pharmaceuticals LLC, slip op., 2011 WL 2413797 (W.D. Wash. June 13, 2011) via Beck, Drug and Device Law]. Quoting the court:
[A]lleging that 93 defendants all manufactured, distributed, and/or sold all of the products that caused all of plaintiff’s injuries is not plausible. In addition, plaintiff’s allegations are internally inconsistent. The complaint alleges that “each” of the defendants manufactured the heparin that caused her injuries, but also alleges that each of the 93 defendants “separately manufactured, marketed, distributed, wholesaled, and/or sold” heparin. The inconsistencies between those allegations, which are not pled in the alternative, further highlight the implausibility of plaintiff’s allegations.
James Beck writes, “Basically, the plaintiffs in McFarland didn’t want to do even the most basic spadework of identifying the correct defendants before bringing suit, so they threw in the kitchen sink in the hope that the defendants would end up having to spend the time and effort to figure things out.” After Twombly and Iqbal, that’s become a less effective legal tactic — one of many reasons to resist the Litigation Lobby drive to get Congress to overturn the two pleading decisions.
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The Federalist Society has posted numerous videos from its recent National Lawyers’ Convention, including sessions on the aggressive regulatory stance of today’s Environmental Protection Agency, the constitutionality of Obamacare, anonymity and the First Amendment in media and campaign-regulation law, NYU’s Richard Epstein debating Yale’s Bill Eskridge on the court battle over California’s Prop 8, recusal and campaign rules for judges, Dodd-Frank, and the Christian Legal Society v. Martinez case on accreditation of student groups, among other topics. And civil procedure/Iqbal-Twombly buffs may be interested in a luncheon panel held just yesterday in D.C. (I was in the audience) in which four law professors (Don Elliott of Yale, Martin Redish and Ronald Allen of Northwestern, and Rick Esenberg of Marquette) outlined ideas for reforming the Federal Rules of Civil Procedure to reduce discovery costs and improve screening of cases in the earliest stages of filing.
The video above is of the Society’s 10th annual Barbara Olson Memorial Lecture, in which Second Circuit Chief Judge Dennis Jacobs provocatively criticizes legal academia and other precincts of influential legal thinking for misunderstanding the role of the military and its relation to the law.
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- Supreme Court case: “Family’s vaccine claim is not sustainable” [Washington Post editorial, earlier] More: John Calfee, The American.
- GAO: HHS acted in “unusual” way when it muzzled health plans on ObamaCare costs [Cannon/Cato-at-Liberty, earlier]
- “Trial Opens for Adoption Attorney Accused of Stealing From Clients” [NYLJ]
- U.K.: A “human right” to have someone prosecuted? [Greenfield]
- “Dodd-Frank, Bubble Laws, and Quack Corporate Governance” [Bainbridge]
- Child overprotection: “Pack away the cotton wool” [Sydney Morning Herald editorial, scroll]
- Here comes another SCOTUS case in the Twombly-Iqbal series? [WLF] Update: Apparently not [Ted at PoL] Why Iqbal and Twombly were rightly decided [Beck]
- Don’t link, criticize, use our name, refer to us, view our source code… [three years ago on Overlawyered]
Yielding to the Litigation Lobby’s push to overturn the two landmark Supreme Court decisions “would be the real revolution in pleading,” notes Verizon’s John Thorne at Metropolitan Corporate Counsel, and would come at a time when the rulings are showing signs of real promise in weeding down some busy areas of speculative litigation.
- After Mohawk Industries settlement, many employers could be sitting ducks for suits claiming that hiring illegal workers is RICO violation [Helman, Forbes, earlier]
- Teen tries to help child lost in store, winds up facing felony rap of false imprisonment [Greenfield]
- Federal magistrate in debt collection case: letter on law firm letterhead implies threat to sue [Legal Intelligencer]
- On “professional” class action objectors [Ted at PoL]
- Coal company claims ventilation system ordered by government regulators might have been a cause of deadly April mine explosion [WSJ]
- Senate committee approves judicial nomination of John (“Jack”) McConnell, impresario of Rhode Island lead-paint litigation; William Jacobson explains critics’ charges regarding couching of legal fee as purported hospital donation [Legal Insurrection]
- Hey, stop siphoning that oil slick, we haven’t checked your life jackets and extinguishers [GatewayPundit] Gulf oil rig registered for purposes of regulation in remote Pacific island chain [Legal Blog Watch] Richard Epstein on oil spill liability [WSJ] BP will never pay full price of accident [Popehat] Check back in 2031 to see how the litigation went [Alex Beam, Boston Globe]
- American Constitution Society holds panel discussion on Iqbal and Twombly [BLT] “Is It Too Much to Ask That a Lawsuit Be ‘Plausible’?” [Richard Samp, WLF Legal Pulse]
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- “When the country went cold turkey”: Tyler Cowen reviews Last Call, Daniel Okrent’s history of Prohibition [Business Week]
- Phrases never to put in email, e.g., “We Probably Shouldn’t Put This in Email” [Balasubramani, SpamNotes]
- “My biggest wish was that I would get a cease and desist from the company that publishes Marmaduke” [Walker, Reason "Hit and Run"]
- California proposal to jail parents for kids’ truancy [Valerie Strauss/WaPo via Alkon] Parents arrested on charges of forging doctor sick note to excuse third grader [Glenn Reynolds, Dan Riehl]
- UK judge: NHS need not fund transsexual’s breast enlargement [Mail]
- “Charitable Foundation Leader Alarmed by Government Intrusions into Philanthropy” [WLF Legal Pulse]
- Missed earlier: “Stalking Victims’ Duty to Warn Employees, Lovers, Visitors, and Others?” [Volokh]
- “Overturning Iqbal and Twombly Would Encourage Frivolous Litigation” [Darpana Sheth, Insider Online]
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- Automakers fight Bruce Braley/trial lawyer effort on Capitol Hill to overturn NHTSA preemption [Dow Jones, WSJ Law Blog, David Freddoso/Examiner, Carter Wood and more at PoL]
- Twombly/Iqbal can curb sue-’em-all, sort-’em-out-later charges of civil conspiracy [Sachse/Drug & Device Law, earlier]
- Claim: Obama, Kagan, Sotomayor typify “postradical” law school generation [David Fontana, Chronicle of Higher Ed via Wasserman/Prawfs (counter: "there are a lot of us liberal doctrinalists out here ...And students are learning that vision in law school"), Althouse ("Spare me! There are plenty of strongly liberal and lefty lawprofs and if you want theoretical ambition you can find it.")]
- FTC report contemplates much wider federal intervention in media business [Jarvis/BuzzMachine, Tapscott/Examiner, Coyote, Steele/LEF, Stoll/Future of Capitalism, LA Times, ShopFloor, Jarvis/NY Post, Pethokoukis/Reuters, Suderman/Reason] Is scary McChesneyite “Free Press” making headway in administration? [Riggs, Daily Caller]
- “Law and Society Boycott Resolution Gets Arizona Immigration Law Wrong” [Chin, Prawfs]
- “Appeal of Crunch Berries Case Dismissed” [Lowering the Bar, earlier]
- “Senior U.N. official” demanding end to U.S. use of drones against Al Qaeda in Afghanistan also happens to be NYU lawprof [NY Times, 16th/last paragraph of story]
- Unintended consequences: 1932 cut in judges’ pensions changed Supreme Court history [Magliocca, ConcurOp]
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Things you’re missing if you’re not reading my other site:
- Federal judge tosses city of Baltimore’s case blaming its neighborhood blight on subprime lenders, but Memphis files a similar suit;
- “The catchall fraud law that catches too much”: Roger Parloff of Fortune on “honest services”;
- Moonlighting: New York state senate majority leader John Sampson joins large plaintiff’s firm in “of counsel” position, an arrangement long held by his counterpart at the New York capitol, Assembly Speaker Sheldon Silver;
- “Trial lawyers association outlines its 2010 legislative agenda,” Montana Gov. Schweitzer to address AAJ Maui convention, “Financial Crisis Inquiry Commission, the legal angle” [all from Carter Wood]
- Biggest obstacle to juvenile corrections reform? Prison guards’ unions;
- “Investor Who Backed Unsuccessful Lawsuit is Liable for Defendants’ Legal Fees“;
- A Twombly/Iqbal debate — and the harms of liberal pleading;
- U.S. Chamber’s “Top Five Ridiculous Lawsuits of 2009″ (and many other tops-of-2009 lists).
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- Woman jailed for “camcordering” after recording four minutes of sister’s birthday party in movie theater [BoingBoing]
- Senate hearing airs trial lawyer gripes against Iqbal [Jackson and earlier, PoL, Wajert, Beck & Herrmann (scroll)] Franken and other Senators sidestep substance, browbeat witness re: “study” terminology [Alison Frankel, AmLaw]
- Still time to cancel? “2009 is also the first year of global governance” — new EU president [Small Dead Animals]
- Miller-Jenkins battle: judge orders custody switch to law-abiding spouse [Box Turtle Bulletin, background]
- Speedy by government standards? 17 years ago DoT proposed Southeast high-speed rail on existing rights of way, ruling on environmental impact statement is expected next year [McArdle]
- “New York’s New DWI Bill: Compounding Stupidity” [Greenfield; felony to drive intoxicated with passenger 15 or younger]
- “Apple Told To Pay Patent Troll OPTi $21.7 Million” [Business Insider]
- This year’s ABA Blawg 100 listing left out some legal blogs that aren’t half bad [Turkewitz]
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Stories you may be missing if you’re not following our sister site:
- Administration now seeks to take credit for med-mal reform as part of health care plan. How believably? (related here, here, here, here, etc.)
- Also related, if less closely: health care bill packed with goodies for labor;
- Trial lawyers continue push in Congress to restore minimally demanding notice pleading standard by overturning Supreme Court’s Iqbal, Twombly decisions;
- Imprisoned exec of Union Bank of Switzerland wants billions as whistleblowing bounty for assisting federal tax investigators;
- “Right and Left Join Forces on Criminal Justice” — the NYT coverage;
- “New Connecticut Law Tries to Trip Up ‘Runners’ and the Lawyers Who Hire Them”; Connecticut AG Blumenthal to push mandatory hospital error disclosure;
- Third-party litigation finance is getting more controversial;
- “The ethics counsel to the New York state senate told senators to hand-deliver ethics filings, rather than mailing them, to avoid coverage under the federal mail fraud statute.”
- More on public pension funds, securities class-action lawyers, and campaign contributions.
- Worst, most dangerous legal trend of the moment: trial lawyers continue big Capitol Hill push to overturn Supreme Court’s valuable Iqbal and Twombly decisions on lawsuit procedure [Point of Law and more, Thomas Dupree/WLF, Beck & Herrmann and more, earlier]
- Lawyers rush to courthouse to beat deadline for new Oklahoma limits on liability suits [Tulsa World]
- Spokesman for Attorney General Jerry Brown admits he’s taped reporter conversations without their consent, seeming violation of California law [SF Chronicle]
- UK: motorist could face prosecution for splashing kids by driving through puddle, at what she says was kids’ request [BoingBoing]
- “Is the pay czar unconstitutional?” [Bainbridge on McConnell, WSJ; Ribstein on link to PCAOB case]
- More “deceptively named fruity cereal” suits in California [Lowering the Bar ("I still think this is like claiming emotional distress because you just learned 'The Hobbit' isn't a true story,") Ken at Popehat ("Froot of the Poisonous Tree of Litigiousness"), earlier here, here, here, here, etc.]
- A city of stool pigeons: Chicago to pay those who inform on tax cheats [NBC Chicago]
- Ill-fated stint as pole dancer leads to lawsuit against Arizona bar [Above the Law]
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- Myrtle Beach Chamber of Commerce: “Elmer Fudd” commenter defamed us [Sun-News via Patrick at Popehat]
- “New Texas law seeks common sense instead of ‘zero tolerance’ in punishment of students” [Star-Telegram]
- Oprah can relax, poet’s self-scripted $1 trillion lawsuit against her is dismissed [THR Esq., Lowering the Bar and more, New Jersey Lawsuit Reform Watch]
- Overview of big push for new federal food safety laws [Kristin Choo, ABA Journal]
- And thanks for all the booze: “Chronic drunk costs SF taxpayers at least $150,000/year” [Obscure Store, Common Room]
- “We have made a grave mistake in politicizing the economy so deeply, and should back away now.” [Tyler Cowen, NYT]
- As a phrase, “sex toy product liability” is probably going to bring us the wrong sort of search engine traffic [Law and More]
- Overturning Supreme Court’s Iqbal/Twombly pleading jurisprudence emerging as key Congressional objective for trial lawyer lobby [Freddoso, Examiner; recent post of mine at Point of Law, and much other coverage there]
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