The ebb and flow of law fascinates Blawgletter.  Every week brings new surprises. 

We hold special fondness for the hard and messy work of presiding over trials.  We admire even more the jurors who recreate democracy with each verdict they render.

And yet every day we see court of appeals decisions that uphold shortcuts and hindrances.  Sometimes — often — we marvel at the rarity of opinions that consider the justness of trial outcomes.  The courts so frequently dwell on preliminary and procedural matters that we wonder how cases get to trial at all.

The three decisions we feature today all concern pretrial matters.  We don’t mean that as criticism.  We instead intend to illustrate what a fetish we now make of exactitude in the service of a legalistic and bloodless conception of civil justice.

Our first example comes from the Ninth Circuit.  In Delaware Valley Surgical Supply Inc. v. Johnson & Johnson, No. 08-55105 (9th Cir. Apr. 30, 2008), the court considered the question of who qualifies as a "direct purchaser" of products under Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977).  Illinois Brick limited the class of people who may sue for price fixing under federal antitrust law to those who purchased directly from a member of the price-fixing conspiracy.  A plaintiff in Delaware Valley sought an exception to the Illinois Brick rule, arguing that their privity of contract with the manufacturer, Johnson & Johnson, conferred direct purchaser status on them.  The district court and the Ninth Circuit disagreed.  The plaintiff’s contract with J&J did assure the customer certain advantages, but still the plaintiff bought the J&J products from an independent distributor.  The court thus affirmed dismissal for lack of standing.

Our second example from this week concerns defining the "relevant geographic market" for purposes of another variety of antitrust claim — the "tying" of one product to another.  The plaintiffs alleged that 20 cemetery operators and the Michigan Cemetery Association unlawfully tied the purchase of burial plots — the "tying" product — to the buying of monuments and memorials — the "tied" product.  On a motion to dismiss, the district court concluded that the complaint too narrowly defined the geographic market as consisting of grave sites in particular cemeteries.  Affirming, the Sixth Circuit held that the complaint failed to exclude the possiblity that the market for burial plots extended beyond the cemeteries in question and instead included all locations that competed for customers seeking a place of interment.  Michigan Division – Monument Builders of N. Am. v. Michigan Cemetery Ass’n, No. 06-2524 (6th Cir. May 1, 2008).

The third and final case deals with conflicting jurisdiction over the subject matter of a class action.  The district court in Negrete v. Allianz Life Ins. Co. of N. Am., No. 07-55505 (9th Cir. Apr. 29, 2008), signed an order that prohibited the defendant from settling claims at issue in the case without permission of class counsel and the court.  The Ninth Circuit held the ruling to constitute an injunction and concluded that it contravened the federal All Writs Act and the Anti-Injunction Act.  The outcome might have differed, the court noted, if the defendant seemed close to striking a low-ball settlement with another plaintiff or group of plaintiffs.

Our triumvirate of cases doesn’t allow us to reach any firm hypothesis about why lawsuits so seldom go to trial anymore.  And yet each fits with the notion that perfection, or near-perfection, has become the do-or-die criterion for judging the trial-worthiness of serious claims.  Would juries have decided Delaware Valley and Michigan Division differently?  Does the outcome of Negrete advance the cause of seeking an efficient and just result?

Without questioning the correctness of the rulings, we must say no to both questions.  We’ll say more about why another time.  But, for now, let’s just affirm our belief in erring on the side of more decisions on the merits — by the trier of fact.

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