Two lawyers, one facing and later suffering disbarment, earned $109 million in seven years, per The Washington Post. About $51 million came from the ex-President’s speaking honoraria. Another $30 represented book royalties for him and the former First Lady.
Blawgletter’s question? Where did the other $28 million come from?
This case was birthed in Louisiana state court by Barry and Sheryle Bernhard. It was adopted by the Middle District of Louisiana when the defendants, Capital One and Whitney National Bank, removed it on the basis of a federal question. Whitney appeals a split-the-baby decision of the district court, granting summary judgment in Whitney’s favor on the federal claim, yet remanding the state claims. Because we hold that, under the unusual circumstances of this case, the district court lacked federal question jurisdiction, we VACATE the district court’s judgment and REMAND with instructions that the case be remanded to te custody of the state court.
Bernhard v. Whitney Nat’l Bank, No. 07-30464 (5th Cir. Apr. 2, 2008).
You will forgive Blawgletter for speculating that the court delayed issuing the opinion for a day.
Writing for a unanimous panel, Second Circuit Judge John M. Walker, Jr, today gave half a dozen or more reasons why the district court shouldn’t have certified a class of "light" cigarette smokers. They included that:
McLaughlin v. Am. Tobacco Co., No. 06-4666 (2d Cir. Apr. 3, 2008).
The first point caught Blawgletter’s eye. Avid readers — thanks mom and dad! — will recall that the Supreme Court has before it a case that will decide that very issue: Does RICO require proof of reliance? Post here, amicus brief yonder.
Today the Fifth Circuit heard arguments in the appeal of former Enron CEO Jeffrey K. Skilling from his criminal conviction for fraud. But by the time that session rolled around, in the East Courtroom of the magnificent John Minor Wisdom Court of Appeals Building in New Orleans, the same panel heard three other Enron cases.
Blawgletter wonders if Their Honors felt some Enron overload.
We don’t know what specific issues the first three cases involve, but they all look to us like civil matters. See the Court’s schedule here.
The panel members? Circuit Judges Jerry E. Smith and Edward C. Prado and Western District of Texas District Judge Alia Moses Ludlum. Now inhabitating a cell in Minnesota, Mr. Skilling hopes they rule soon. His way
Blawgletter wrote recently about a survey that puts the Supreme Court of Texas way below the "influence" one would expect from the second most populous — and therefore smartest — state in the Union. The survey’s ranking methodology also indicates that the Court’s influence declined even further since the "Justice for Sale" days in the 1980s. Yipes.
True or not true? We don’t rightly know, but we do know that today we read a decision — from last Friday — that may emblemize why the Court’s recent opinions don’t carry a bunch of persuasive force outside the Lone Star state.
The case involved the question of whether a "drive axle" that detaches from Vehicle A still counts as a "motor vehicle" for purposes of determining whether Vehicle A made "actual physical contact" with Vehicle B. If the flying axle from Vehicle A does so count, the insurer of Vehicle B has to pay for the damage under its "uninsured motorist" policy.
The Court held that a "drive axle with two tandem wheels" ceased its status as "motor vehicle" when it came loose from an 18-wheeler before sailing across the divider and crashing into the oncoming station wagon of Mohamad Elchehimi. In so ruling, the Court relied on a non-precedential Texas court of appeals opinion that deemed a loading ramp not a "motor vehicle" after its separation from the rest of a truck. Nationwide Ins. Co. v. Elchehimi, 06-0106 (Tex. Mar. 28, 2008).
No word on what the Court would have done if the truck disintegrated into several pieces — none of which by itself would qualify as a "motor vehicle" — before striking the other vehicle.
The two-Justice dissent cited and discussed dozens of cases, from Texas and elsewhere, and explained in detail why coverage exists "when the insured is struck by an integral part of another vehicle and there is a temporal continuity between the part’s detachment from the unknown vehicle and collision with the insured." The "actual physical contact" requirement exists, the dissenters urged, to prevent fraudulent claims — not to cut off coverage for plainly meritorious claims.
We expect that the Elchehimi decision will earn the "followed" designation in Shepard’s from zero of the Court’s sister courts around the nation. Because a persuasive legal opinion can’t simply string quotes and cites and sentences and paragraphs together and state a conclusion that seems colorable to the majority. The opinion must also make compelling sense. It helps if it seems fair. Elchehimi, in our view, may reach colorability, but it falls painfully short of convincing. Not to mention of fairness.
Speaking on condition of anonymity, Chief Justice John Glover Roberts, Jr. — the "Glover" is silent — announced today that the U.S. judiciary will keep its opinions to itself for the duration of April Fools’ Day. Unidentifiable but independent sources verified the gist of the Chief’s secret press release.
Ralph Waldo Emerson (1803-82), commenting in a rare beyond-the-grave interview, praised the magisterial hiatus, mumbling something about "foolish consistency", a "hobgoblin", and "little minds". Apparently he believes a once-a-year quotidian moratorium the very opposite of foolishness.
The GEICO gecko had no comment. At least not one Blawgletter could publish in a family blawg.
Treasury Secretary Henry J. "Hank" Paulson, Jr., leaned forward across the lecturn as he described his year-in-the-making "Blueprint for a Modernized Financial Regulatory Structure". NYT article here; WSJ here.
The Blueprint arrives with passing strange timing. In the midst of market turmoil and calls for stiffer regulation, Mr. Paulson urges . . . strengthening the President’s Working Group on Financial Markets to make recommendations, creating a Mortgage Origination Commission to make more recommendations, and continuing (via the Federal Reserve) to furnish bail-outs, er, "liquidity provisioning" for banking institutions that made supremely stupid investment choices. One gets the feeling that the only real part of this "short term" portion of the Blueprint is the last one.
The Blueprint goes on to recommend middle and long term solutions. Blawgletter’s favorite is the one to abolish state regulation of insurance companies. But a theme permeates the whole stinkin’ document: Preemption, preemption, preemption.
That a former Chairman and CEO of Goldman Sachs would support federalization of financial market regulation shouldn’t come as a surprise. But the notion that the ideas will actually strengthen or improve regulatory oversight calls, at first blush, for a big dose of skepticism. Plus we can’t imagine that Mr. Paulson has so little political savvy as to believe that the Blueprint will actually produce any change in the short term. The administration can expand or create all the "Commissions" it wants, and the Fed can keep doing what it’s already started doing (that "liquidity provisioning" thing).
So what was the purpose of announcing, just now, a Blueprint for no changes before January 2009 but huge ones later on?
The Eighth Circuit’s Bankruptcy Appellate Panel today overturned the bankruptcy equivalent of Rule 11 sanctions against a lawyer for taking "inconsistent" positions on behalf of his clients. The BAP noted:
Advancing different legal theories that might result in an inequitable result should not subject an attorney to sanctions when one of those arguments fails to carry the day. An attorney’s ethical obligation is to represent his or her clients vigorously and zealously, which Mr. Oliver did in this case.
In re Thayer (Am. Residential Mortgage, LP v.Thayer), No. 07-6045 (8th Cir. BAP Mar. 31, 2008).
The nutty Pacific Research Institute just came out with its latest goofy survey of the tort liability situation in these United States, the "U.S. Tort Liability Index: 2008 Report".
One may gauge the seriousness of the report by how it classifies states — as "saints", "sinners", "salvageable", and "suckers". Also by its referring to litigation as "lawsuit ‘Whack-a-Mole’".
Blawgletter reviewed last year’s version in "Does Tort Litigation Kill People?", which pretty well captures the new one too.
PRI’s answer to the question about a connection between lawsuits the deaths? Why, yes. Yes, the very act of litigating a tort claim does cause homicide.
Enjoy!
In the lore of antitrust class action litigation, indirect purchaser cases — as they say in East Texas — suck hind tit.
Why? Because they usually get into federal court on the hypothesis that the indirect purchasers need protection against future predations of the antitrust violators. They then harness to the injunctive relief claim a bunch of claims for damages under a variety of state statutes that permit — unlike the Sherman Act — recovery of damages by indirect purchasers. Illinois Brick, you know.
[In case you actually can’t tell an Illinois Brick from a quarry tile, the case held that only people who bought directly from a price-fixer have standing under the Sherman Act to recover damages. The Supreme Court decision, Illinois Brick v. Illinois, 431 U.S. 720 (1977), led several states to enact "repealer" statutes that conferred standing on indirect purchasers. These legslative actions in turn produced a torrent of state indirect purchaser cases that paralleled federal direct purchaser litigation. And some of the indirecters often sought a federal forum by alleging fear that, without an injunction, the price-fixers would keep on fixing prices. Which brings Blawgletter to the case we want to alert you to.]
In In re New Motor Vehicles Canadian Export Antitrust Litig., No. 07-2257 (1st Cir. Mar. 28, 2008), the unanimous panel threw frigid water on the notion that federal jurisdiction exists because indirect buyers need injunctive relief. Their Honors doubted that the relevant conditions of the past would recur. They also cast asparagus on "novel" expert opinions concerning whether the class of plaintiffs suffered actual harm as a result of a conspiracy to restrain trade. Piling on too many assumptions or skipping over gaps in the chain of causation might prove problematic, the court suggested.
We urge you antitrust addicts out there to read the opinion. Especially those of you who often represent indirect purchasers in federal court. Because it signals, at least in the First Circuit, a curtailment of opportunities for tagging along in federal court with direct purchaser litigation.
