When can a defense prevent dismissal of a case?  When the plaintiff wants a dismissal to avoid the defense.

That sums up the Fifth Circuit’s decision today in Hyde v. Hoffmann-La Roche Inc., No. 05-10203 (5th Cir. Dec. 20, 2007).  The plaintiff, George W. Hyde, brought the case in Texas state court.  He alleged physical and psychological injuries from taking Accutane, a prescription drug for treating acne.  Hoffmann-La Roche removed the lawsuit to federal court.  Hyde moved under Rule 41(a)(2) of the Federal Rules of Civil Procedure to dismiss his case voluntarily and without prejudice.  The district court granted the motion.  The Fifth Circuit reversed, holding that a district court abuses its discretion if it allows a voluntary dismissal that may "strip" the defendants of a defense.  Because dismissing could have permitted Hyde to avoid application of a Texas statute of repose, the court concluded, dismissal was improper.

Barry Barnett

Our feeds reposes confidence in the system.

A unanimous panel of the Third Circuit today affirmed an order compelling arbitration of federal claims on a non-class basis.  The court did so despite two Pennsylvania appellate decisions that went the other way, holding that bans on class arbitrations ran afoul of state law unconscionability principles.  It justified the ruling on the ground that the Pennsylvania Superior Court panels failed to enforce the federal policy favoring enforcement of arbitration agreements.  Gay v. CreditInform, No. 06-4036 (3d Cir. Dec. 19, 2007) (rejecting Lytle v. CitiFinancial Services, Inc., 810 A.2d 643 (Pa. Super. Ct. 2002), and Thibodeau v. Comcast Corp., 912 A.2d 874 (Pa. Super. Ct. 2006)).

If that strikes you as an odd outcome, don’t feel lonesome.  The court conferred near super-powers on arbitration clauses, enforcing them despite their unconscionability under general state law principles precisely because their unconscionability inhered in their requirement of individual arbitration.  Under that rationale, courts must enforce all bans on class arbitrations no matter how heinously unconscionable.

The decision conflicts, at least atmospherically, with several other courts’ analyses.  Cases like Kristian v. Comcast Corp., 446 F.3d 25 (1st Cir. 2006), held class arbitration bans unenforceable because they frustrated enforcement of federal statutory rights, while others, such as Dale v. Comcast Corp., 498 F.3d 1216 (11th Cir. 2007), concluded that state law unconscionability principles doomed the bans.

Gay takes no notice of those contrary decisions, putting the Third Circuit at the forefront of aggressively enforcing arbitration clauses — even if their terms plainly aim at assuring that no arbitration whatsoever will happen.

Barry Barnett

Our feed likes people who say heinious instead of heinous.

Say you get an opposing lawyer’s notes, perhaps because he left them in your conference room after taking a deposition.  What ought you to do with them?  Does your duty to your client compel you to read them?  Or do your obligations as an officer of the court bar you from taking advantage?

The Supreme Court of California affirmed last week that lawyers do indeed serve two masters.  The court held that one side’s inadvertent disclosure of its lawyers’ work product (or confidential lawyer-client communications) creates in the other side’s lawyer, the unintending but perhaps willing beneficiary, a responsibility:

Once it becomes apparent that the content is privileged, counsel must immediately notify opposing counsel and try to resolve the situation.

Rico v. Mitsubishi Motors Corp., No. 123808 (Cal. Dec. 13, 2007).  The resolution usually will involve giving the material back.  If it doesn’t, disqualification may follow.

Barry Barnett

The feed we call our own relishes the DQ brown derby.

This Arthur Miller never knew Marilyn Monroe.  We think.

Blawgletter recalls our first law school class.  Arthur Miller — then the reporter for the advisory committee on the Federal Rules of Civil Procedure — boasted (probably in a gangster pinstripe suit) that we could have our stinkin’ substantive law if we liked it so freakin’ much but that he could whip us at least most of the time if he had procedure on his side.  Truer words we’ve seldom heard.

The Sixth Circuit proved the professor’s bragadocia today by affirming a class certification order.  The complaint charged CenturyTel with misleading customers by calling in-home wire maintenance a mere "non-regulated service" on their bills.  The deceptive designation violated the federal Communications Act, the plaintiffs alleged.  (Leave to one side their real gripe:  that in-home wire maintenance amounts to buying insurance for something that’ll never in a billion jillion years happen — a rat chews through a wire and severs your landline connection to the outside world.)

The propriety of certifying the class turned on the effect of the fact that some class members — perhaps all of them — actually ordered the (near-useless) in-home wire maintenance.  (Much like the Best Buy and Circuit City customers who pay outrageous premiums to guard against the infinitesimal chance that their spanking new computer will self-destruct upon first booting.)  The court resolved the problem of individual proof by classifying the issue of consent as going to damages instead of liability, thus staving off certain death for the case.  Beattie v. CenturyTel, Inc., No. 06-1565 (6th Cir. Dec. 18, 2007).

Contrast that ruling with the Supreme Court of Texas’s 14-and-one run of killing class actions on procedural grounds.  The court just interprets the Texas rule on class certification as almost impossible-to-satisfy, in spite of its near identity to the federal rule from which it sprang.

Procedure trumps substance.  At least in the Lone Star state.  Whose name means friendship.  Except for class actions.

Barry Barnett

Our feed rules, at least in the sense of following them.

Chief Judge Alex Kozinski in a, er, non-judicial setting.

We do not call this process sham pleading; we call it litigation.

PAE Gov’t Services, Inc. v. MPRI, Inc., No. 06-56438 (9th Cir. Dec. 18, 2007) (Kozinski, C.J.) (explaining reversal of order striking complaint that district court believed contradicted earlier pleading) (footnote omitted).

Barry Barnett

His Honor once won distinction as the Number 1 Superhottie of the federal judiciary.

Abdul Rahman al-Lahem.

The NYT reports that the monarch of Saudi Arabia may have pardoned a young woman whom the authorities accused of violating Islamic law by meeting a former boyfriend to retrieve an old picture of her.  A group of men raped the woman and the ex-boyfriend.

A Saudi court increased the woman’s punishment to 90 lashes, apparently because her lawyer protested her sentence.  The court also stripped him of his license to practice.

Yes, judges can do cruel, unjust, and inhumane things even as they persuade themselves that they’re doing justice.  Just ask Billy Budd. 

Not to mention the Saudi lawyer who did his job but can’t practice anymore.  A little help, King Abdullah?

Barry Barnett

Moby who?

A Michigan district court declined to enjoin a former "restoration drycleaning" franchisee from continuing to ply its trade despite a non-compete clause in the defunct franchise agreement.  The Sixth Circuit reversed, holding the clause unambiguous and the evidence sufficient to require enforcing the non-compete by way of preliminary injunction.  Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp. d/b/a Rite Cleaners, No. 07-1562 (6th Cir. Dec. 17, 2007) (applying Michigan law).

Blawgletter feels that the court glossed over a few things — particularly the likelihood (or not) of harm to the franchisor from letting Rite Cleaners keep on serving customers that it had before signing up for the franchise and the need to protect Certified from competition in areas where Rite never operated as a franchisee.  We would’ve like to see more attention to those points.

Barry Barnett

Michiganders love our feed.

Less than half of Americans (47 percent) have Googled themselves, according to a survey by the Pew Internet and American Life Project.  A small majority (53 percent) have Googled other (non-celebrity) folk.

Two percent Google themselves regularly.

You can read the whole report, Digital Footprints, here.

Barry Barnett

Googling does a body good.