06-480 CFX LEEGIN CREATIVE LEATHER PRODUCTS V. PSKS, INC.
06-484 CFX TELLABS, INC. V. MAKOR ISSUES & RIGHTS LTD.
05-1157 CFX CREDIT SUISSE SECURITIES V. BILLING — Get June 18th opinion here.
Barry Barnett
The U.S. Supreme Court will issue decisions on June 18 and 25 before adjourning for the summer.
The Court has three important business litigation matters, involving antitrust and securities law, to dispose of:
The enigmatic Clarence Thomas.
Orlando Patterson offers an incisive analysis of Supreme Discomfort: The Divided Soul of Clarence Thomas (2007) in today’s NYT Sunday Book Review.
Blawgletter came away from the review almost wanting to read the book, which more than any other biography of Thomas appears to balance his warm personal relations against his extreme, even cruel conservatism. But the contradictions remain too raw and ugly for us.
Kudos to Patterson for bringing them to life, making Thomas both more attractive and more repellent at the same time.
Barry Barnett
Michael Byron "Mike" Nifong boo-hooed this afternoon as he offered to turn in his North Carolina law license.
We now know that the three bar representatives disbarred Nifong. Duke Chronicle story here. Blawgletter suspects that the Nifongian crocodile tears angered rather than softened them.
Plus we still cannot believe the depth of this guy’s self-absorption and self-pity.
Barry Barnett
The district attorney who abused his office to prosecute Duke lacrosse players for a rape that never happened said today, in his trial on ethics charges, that he will resign his office.
He apologized "[t]o the extent my actions have brought disrepute to the bar". Story here.
To the extent? To the extent!
So much of civil society depends on mutual trust. For lawyers, trust by non-lawyers turns on how well we try to serve the cause of justice.
Professors drilled into us during our first year in law school that no lawyer, as lawyer, wields more power for good or ill than the prosecutor. We can and should expect more from him or her than minimal compliance with rules, ethical and otherwise. We have a right to expect exemplary behavior.
Michael B. Nifong betrayed our trust. Today he offered to resign his position as district attorney of Durham County, North Carolina. Not enough; not even close. He should also turn in his bar card.
Barry Barnett
The Supreme Court of Texas today issued five opinions. In four cases, the defendants won. In the fifth, nobody won, the court choosing to revoke its order granting review because the plaintiff died. Judge for yourself whether the court foreordained the outcome on remand. See Weekly Orders page here.
We should also note that the court refused to hear oral argument in three of the four cases it decided on the merits. Having such certainty in one’s wisdom must feel mighty good.
Barry Barnett
P.S. Kurt Vonnegut — rest in peace — coined "so it goes" for Billy Pilgrim in Slaughterhouse Five. He meant it ironically. So it goes.
Yesterday, the Second Circuit became the first U.S. court of appeals to expound on how the decision in Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007), has changed pleading requirements. The court summarized:
After careful consideration of the Court’s opinion [in Twombly] and the conflicting signals from it that we have identified, we believe the Court is not requiring a universal standard of heightened fact pleading, but is instead requiring a flexible "plausibility standard," which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible.
Iqbal v. Hasty, No. 05-5768, slip op. at 33 (2d Cir. June 14, 2007) (emphasis in original). Circuit Judge Jon O. Newman wrote the court’s opinion, which Blagletter highly recommends for its style and clarity. Circuit Judge Cabranes wrote a concurring opinion.
The decision in Iqbal v. Hasty concerned civil claims against federal officials high and low for harsh confinement conditions that the government imposed on persons "of high interest" after 9/11. The plaintiff, a Muslim Pakistani, alleged constitutional and statutory violations arising from savage beatings, frequent cavity searches (not in his teeth), solitary confinement, and other brutal treatment during his detention in a Brooklyn federal prison. The Second Circuit largely sustained his claims despite the officials’ immunity defenses.
Barry Barnett
Today, the Third Circuit ordered a district court to reconsider class certification in a case arising from the City of Reading’s refusal to grant a permit for a methadone clinic. The court also reversed summary judgment for the defendants, holding that the record raised fact issues under the Americans with Disabilities Act and the Rehabilitation Act. New Directions Treatment Services v. City of Reading, No. 05-4353 (3d Cir. June 15, 2007).
Barry Barnett
The D.C. Circuit considered today whether an employee waives his psychotherapist-patient privilege by suing the employer for discrimination. The court held that he doesn’t, at least if he drops his claim for emotional harm. Koch v. Cox, No. 06-5134 (D.C. Cir. June 15, 2007).
Barry Barnett
Today the Second Circuit reversed dismissal of a claim for conversion of electronic data. The court thus accepted the answer, by the New York Court of Appeals, to the question of whether detention of intangible property may satisfy the elements of the "conversion" tort. Thyroff v. Nationwide Mut. Ins. Co., No. 05-4005-cv (2d Cir. June 15, 2007).
Thyroff may give pause to employers who routinely lock firees out of company computer systems and refuse to let them retrieve personal programs and data.
Employers may try to mitigate potential liability by declaring anything that employees put on the employers’ systems the sole property of the employers.
Barry Barnett
