Wisdom too often never comes, and so one ought not to reject it merely because it comes late.
Felix Frankfurter, dissenting in Henslee v. Union Planters Nat'l Bank & Trust Co., 355 U.S. 595, 600 (1949), and declining to "compound error" by pushing an earlier decision he had joined in.
Words to live by.
Deliberations got it just right last week. Did it ever.
The post — in screaming all caps — touts "THE OTHER DEFINITION OF 'LAW PRACTICE'". It tells of a defense lawyer whose closing went so far off-script that he confounded the jury, the foreperson of which said his argument seemed "almost . . . like . . . an afterthought."
The post implies that the excursion lost the case. Perhaps it did. Who knows.
But Blawgletter wishes to agree with the Main Point — that "those who think a closing argument (or opening statement; or direct examination) is more powerful and effective without practice are mistaken."
Let us turn now to the Roman trial lawyer par excellence, Marcus Tullius Cicero, who wrote:
[T]he chief thing, which we do least (for it needs great pains, which most of us shirk) — [is] to write as much as possible. The pen is the best and most eminent author and teacher of eloquence, and rightly so. For if an extempore and casual speech is easily beaten by one prepared and thought-out, this latter in turn will assuredly be surpassed by what has been written with care and diligence. The truth is that all commonplaces, whether furnished by art or by individual talent and wisdom, at any rate such as appertain to the subject of our writing, appear and rush forward as we are searching out and surveying the matter with all our natural acuteness; and all the thoughts and expressions, which are the most brilliant in their several kinds, must needs flow up in succession to the point of our pen; then too the actual marshaling and arrangement of words [are] made perfect in the course of writing, in a rhythm and measure proper to oratory as distinct from poetry.
We would add that you ought also to practice on others what you've written. Send your drafts to trial team members for comment. And, with openings and closings, at least stand and read to an audience what you've written. Then try it without notes.
Can you imagine the benefits of writing, and then trying out with your colleagues, the words you plan to utter in court?
Excellent. Go get 'em. Make old Cicero proud.
It would help enormously if the British would just speak English properly.
Tim, Aug. 19, 2010, commenting about Martha Nell, "Big Law's Secret to Success in Retaining Women Partners: 82 Holidays a Year", ABA Journal online.
The Antitrust Division of the U.S. Department of Justice and the U.S. Federal Trade Commission issued new merger guidelines today.
If we can take the things that antitrust enforcers have said about the guidelines and enforcement generally in the last year or so as any guide, the update will make passing pre-merger muster harder to achieve.
The joint press release says:
DEPARTMENT OF JUSTICE AND FEDERAL TRADE COMMISSION ISSUE
REVISED HORIZONTAL MERGER GUIDELINES2010 Guidelines More Accurately Represent Agencies' Merger Review Process
WASHINGTON — The Department of Justice and the Federal Trade Commission (FTC) issued today revised Horizontal Merger Guidelines that outline how the federal antitrust agencies evaluate the likely competitive impact of mergers and whether those mergers comply with U.S. antitrust law. These changes mark the first major revision of the merger guidelines in 18 years, and will give businesses a better understanding of how the agencies evaluate proposed mergers.
A primary goal of the 2010 guidelines is to help the agencies identify and challenge competitively harmful mergers while avoiding unnecessary interference with mergers that either are competitively beneficial or likely will have no competitive impact on the marketplace. To accomplish this, the guidelines detail the techniques and main types of evidence the agencies typically use to predict whether horizontal mergers may substantially lessen competition.
The revised merger guidelines derive from the agencies' collective experience in assessing thousands of transactions focusing on the types of evidence the department and the FTC use to decide whether a merger of competitors may harm competition. Many of the proposed refinements and changes reflect issues previously identified in the "Commentary on the Horizontal Merger Guidelines," which the agencies jointly issued in 2006. In crafting the revisions, the agencies considered a wide range of opinions gathered through a series of joint public workshops, as well as hundreds of public comments submitted by attorneys, academics, economists, consumer groups and businesses.
"The revised guidelines better reflect the agencies' actual practices," said Christine Varney, Assistant Attorney General in charge of the Department of Justice's Antitrust Division. "The guidelines provide more clarity and transparency, and will provide businesses with an even greater understanding of how we review transactions. This has been a successful process due to the commitment of the talented staff from both agencies and the excellent working relationship with the FTC led by Jon Leibowitz."
"Because of the hard work of all involved at both agencies, private parties and judges will be better equipped to understand how the agencies evaluate deals. That improvement in clarity and predictability will benefit everyone," said FTC Chairman Jon Leibowitz. "We thank Christine Varney and her team at DOJ for their terrific work on this initiative, demonstrating once again how effectively and collegially the two agencies work together."
The agencies jointly announced the project in September 2009, followed by a series of workshops over the course of the winter. The FTC issued proposed revisions for public comment on April 20, 2010. All of the written comments are posted on the FTC's website at www.ftc.gov/os/comments/hmgrevisedguides/index.shtm.
The 2010 guidelines are different from the 1992 guidelines in several important ways. The guidelines:
- Clarify that merger analysis does not use a single methodology, but is a fact-specific process through which the agencies use a variety of tools to analyze the evidence to determine whether a merger may substantially lessen competition.
- Introduce a new section on "Evidence of Adverse Competitive Effects." This section discusses several categories and sources of evidence that the agencies, in their experience, have found informative in predicting the likely competitive effects of mergers.
- Explain that market definition is not an end itself or a necessary starting point of merger analysis, and market concentration is a tool that is useful to the extent it illuminates the merger's likely competitive effects.
- Provide an updated explanation of the hypothetical monopolist test used to define relevant antitrust markets and how the agencies implement that test in practice.
- Update the concentration thresholds that determine whether a transaction warrants further scrutiny by the agencies.
- Provide an expanded discussion of how the agencies evaluate unilateral competitive effects, including effects on innovation.
- Provide an updated section on coordinated effects. The guidelines clarify that coordinated effects, like unilateral effects, include conduct not otherwise condemned by the antitrust laws.
- Provide a simplified discussion of how the agencies evaluate whether entry into the relevant market is so easy that a merger is not likely to enhance market power.
- Add new sections on powerful buyers, mergers between competing buyers, and partial acquisitions.
The 2010 guidelines are available on the Department of Justice's website at www.justice.gov/atr/public/guidelines/hmg-2010.html.
The Horizontal Merger Guidelines, which were first adopted in 1968, and revised in 1992, serve as an outline of the main analytical techniques, practices and enforcement policies the Department of Justice and the FTC use to evaluate mergers and acquisitions involving actual or potential competitors under federal antitrust laws.
The guidelines issued today take into account the legal and economic developments since the 1992 guidelines were issued. They are not intended to represent a change in the direction of merger review policy, but to offer more clarity on the merger review process to better assist the business community and, in particular, parties to mergers and acquisitions.
The Bank Merger Competitive Review guidelines, which the federal banking agencies and the Department of Justice developed in 1995 to facilitate the competitive review of bank mergers, remain unchanged. The Bank Merger Competitive Review guidelines can be found at www.justice.gov/atr/public/premerger.htm.
(Tip of the hat to the ever-alert Daniel Charest.)
The interstate natural gas pipeline system transports more than 36 trillion cubic feet a year.
May the Federal Energy Regulatory Commission cap prices that interstate pipelines may charge shippers for moving natural gas but allow the shippers to resell at market prices?
The interstate pipelines thought not. And so they petitioned the D.C. Circuit to toss a FERC order that, they argued, discriminated against them for No Good Reason.
Last week, the pipelines took a beating. The court noted that pipelines, unlike shippers, can use their control over transportation facilities to reap monopoly profits — by, for example, limiting pipeline capacity to drive up market prices – in the absence of price caps. Shippers, on the other hand, contract with pipelines for long-term transportation services mainly to assure that they can get the gas where they want it to go. That the shippers might also profit from reselling part of the capacity to other shippers on a short-term (less than a year) basis didn't pose enough of a problem to overcome the court's duty to defer to FERC's expertise. The court denied the petition for review of FERC Order No. 712. Interstate Natural Gas Pipeline Ass'n of Am. v. Federal Energy Regulatory Comm'n, No. 09-1016 (D.C. Cir. Aug. 13, 2010).
(Hat tip to Mike Shepard for pointing us to INGAA.)
Whether to treat a securities fraud case on a class basis often turns on whether the court may presume that class members relied on false statements or omissions by the defendants.
The most common form of presumption — the fraud on the market theory – won the Supreme Court's okay in Basic, Inc. v. Levinson, 485 U.S. 224 (1988).
A more exotic breed — the Affiliated Ute variety — provides for a presumption of reliance on material facts that the defendant failed to disclose despite a duty to do so. See Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128 (1972).
A third, and even more rare, means for presuming reliance came in Shores v. Sklar, 647 F.2d 462 (5th Cir. 1981) (en banc), where the court recognized a "fraud-created-the-market" presumption, which posits the notion that investors probably assume the lawfulness of a security's issuance and that courts may therefore presume that they so assumed.
Yesterday, the Third Circuit joined the Seventh in rejecting Shores v. Sklar. Malack v. BDO Seidman, LLP, No. 09-4475, slip op. at 12 (3d Cir. Aug. 16, 2010) (citing Eckstein v. Balcor Film Investors, 8 F.3d 1121, 1130-31 (7th Cir. 1993)). The court also held that a variant of the theory would not work in the case before it. See id. at 33 (distinguishing T.J. Raney & Sons, Inc. v. Fort Cobb, Oklahoma Irrigation Fuel Authority, 717 F.2d 1330 (10th Cir. 1983)).
The court affirmed an order denying class certification under Rule 23(b)(3) on the ground that common issues of fact did not predominate.
A U.S. patent grants a monopoly. It entitles the owner — often a company that employs the inventor, who assigns it to her employer, usually by contractual obligation — to practice the invention exclusively for a period of time. After the monopoly ends, though, anyone may use the invention. But during the monopoly period the owner may reap handsome profits, including from those whose devices, methods, and so forth infringe the claims of the patent. The monopoly grant pays the price of encouraging innovation. So the Constitution expects.
And yet the grant of a patent sometimes lacks the magic we expect. It falls subject to a Great Many defenses — including obviousness, unpatentability, and inequitable conduct.
What of this last — the inequitable conduct? What does that mean?
The Federal Circuit, arbiter of almost all patent cases, gave guidance on that question in nearly back-to-back opinions last week. Both cases sprang from the Eastern District of Texas, which does a marvelous job of handling patent infringement cases.
Each appeal turned on the issue of intent — whether the patent applicant omitted or misdescribed "prior art" with intent to deceive the patent examiner who blessed issuance of the patent. The court in both cases, with entirely different panels of the multiple-judge court, held that the evidence didn't warrant the district courts in invalidating the patents in suit. See Ring Plus, Inc. v. Cingular Wireless Corp., 09-1537 (Fed. Cir. Aug.6, 2010); Golden Hour Data Systems, Inc. v. emsCharts, Inc., No. 09-1306 (Fed. Cir. Aug. 9, 2010).
Blawgletter's dear friends at Patently-O deserve your close attention on, among other things, the Fine Points of proving the inequitable conduct defense. Some commenters said that lying in itself implies an intent to deceive.
But we agree with the panels in their views of the intent-to-deceive question, which calls for clear and convincing evidence that misrepresenter means to hoodwink the examiner. Bully for them.
British Petroleum now faces a two-front litigation war.
Yesterday, the Judicial Panel on Multidistrict Litigation sent to the U.S. district court in New Orleans dozens of cases alleging personal injury, wrongful death, property damage, and other economic loss resulting from the Deepwater Horizon oil spill. In re Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf of Mexico on April 21, 2010, MDL No. 2179 (J.P.M.L. Aug. 10, 2010)
Later in the day, the Panel posted an order transferring securities law cases against BP to Houston. These assert that BP breached an "alleged duty . . . to recognize and disclose the likelihood that a calamity such as this might occur." In re BP p.l.c. Securities Litigation, MDL No. 2185, slip op. at 2 (J.P.M.L. Aug. 10, 2010).
The Panel explained why it chose to divide the tort cases from the securities cases, noting that "the typical benefits of common discovery would likely be few", that the tort "claims alone will require, in all probability, the [New Orleans] transferee judge's undivided attention", and that combining the tort and securities cases "would likely create an unwieldy and ultimately counterproductive litigation vehicle." Id. at 2-3.
The Panel also stated its intention to send a shareholder derivative action to Houston "in a forthcoming conditional transfer order" and to require parties to cases asserting claims under the Employee Retirement Income Security Act "to show cause why those actions should not be included in this MDL." Id. at 3.
U.S. District Judge Keith P. Ellison will handle MDL No. 2185. Judge Ellison was born in New Orleans, won a Rhodes Scholarship, and graduated from Harvard College and Yale Law School. Scary smart.
Today the Judicial Panel on Multidistrict Litigation ordered centralization of cases relating to the oil spill into the Gulf of Mexico from the offshore rig Deepwater Horizon to the Eastern District of Louisiana in New Orleans. U.S. District Judge Carl J. Barbier will oversee the sprawling MDL proceedings.
The Panel's order provides:
IN RE: OIL SPILL BY THE OIL RIG “DEEPWATER HORIZON”
IN THE GULF OF MEXICO, ON APRIL 20, 2010
MDL No. 2179
TRANSFER ORDER
Before the entire Panel:
Before the Panel are four motions that collectively encompass 77 actions: 31 actions in the Eastern District of Louisiana, 23 actions in the Southern District of Alabama, ten actions in the Northern District of Florida, eight actions in the Southern District of Mississippi, two actions in the Western District of Louisiana, two actions in the Southern District of Texas, and one action in the Northern District of Alabama, as listed on Schedule A.
The background of this docket is well known. On April 20, 2010, an explosion and fire destroyed the Deepwater Horizon offshore drilling rig approximately 130 miles southeast of New Orleans and approximately 50 miles from the Mississippi River delta. The explosion killed eleven of the 126 workers on the rig, which eventually sank in approximately 5,000 feet of water. Through mid-July, crude oil gushed from the site in unprecedented amounts. Although the leaking well is now capped, the spill’s effects are widespread, with oil reported to have come ashore in Louisiana, Mississippi, Alabama, Florida, and, most recently, Texas. Its full impact on the lives and livelihoods of tens of thousands of Americans, especially those living in or near the Gulf of Mexico, is as yet undetermined.
I.
Plaintiffs in the Eastern District of Louisiana Cooper and Rodrigue actions have separately moved, pursuant to 28 U.S.C. § 1407, to centralize these actions in the Eastern District of Louisiana, while plaintiff in the Eastern District of Louisiana Nova Affiliated action and common defendant BP Exploration & Production Inc. (BP) have separately moved for centralization in the Southern District of Texas.
Dozens of parties submitted responses to the four motions. Almost all responding parties support centralization. Responding defendants all favor centralization in the Southern District of Texas, whereas the positions of responding plaintiffs are more varied with respect to an appropriate transferee district. While many plaintiffs support centralization in the Eastern District of Louisiana, other plaintiffs argue in favor of selection of the Northern District of Alabama, the Southern District of Alabama, the Middle District of Florida, the Northern District of Florida, the Southern District of Florida, the Western District of Louisiana, the Southern District of Mississippi, the District of South Carolina, or the Southern District of Texas. In addition, a small number of other plaintiffs variously argue in favor of other approaches: that the Panel centralize the docket in the Eastern District of Louisiana, but assign it to Judge Shira Ann Scheindlin of the Southern District of New York, who would then sit in the Eastern District of Louisiana by designation; that the Panel divide the docket among three districts; or that the Panel appoint a judge from one of the Florida districts to “ride circuit” among the various involved localities.
Some responding plaintiffs, while supporting centralization generally, argue against including any of the relatively few personal injury/wrongful death actions in an MDL that might be comprised largely of putative class actions seeking recovery for property damage and other economic losses. Of the 77 constituent actions, two are wrongful death actions (Eastern District of Louisiana Roshto and Jones) and one is a personal injury action (Eastern District of Louisiana Williams). Plaintiffs in Roshto and Williams submitted briefs supporting inclusion of the personal injury/wrongful death actions in centralized proceedings, as did responding defendants, but plaintiff in Jones opposes such inclusion.
A few responding parties oppose centralization altogether. They essentially argue that the involved actions are all subject to dismissal for failure to comply with the Oil Pollution Act’s (OPA) presentment requirement, see 33 U.S.C. § 2713; and that, in any event, because the OPA is a strict liability statute, the only issue in dispute (at least as to the BP defendants) is the amount of damages to which each claimant is entitled, which, they argue, requires an inherently individualized inquiry and is thus inappropriate for MDL treatment. These parties argue that, at the very least, the Panel should carve out the OPA claims from centralized proceedings.
The briefing and oral argument have contributed greatly to the Panel’s deliberations. This is a reminder that although the Panel tries to reach its decisions in a timely fashion, it does so only after affording the parties sufficient time to present their views, both through written submissions, and, in the case of motions seeking the creation of new MDLs, through oral argument. Even in the face of catastrophic circumstances such as these, little is to be gained from hasty decision-making.
II.
The actions before the Panel indisputably share factual issues concerning the cause (or causes) of the Deepwater Horizon explosion/fire and the role, if any, that each defendant played in it. Centralization under Section 1407 will eliminate duplicative discovery, prevent inconsistent pretrial rulings, including rulings on class certification and other issues, and conserve the resources of the parties, their counsel, and the judiciary. Centralization may also facilitate closer coordination with Kenneth Feinberg’s administration of the BP compensation fund. In all these respects, centralization will serve the convenience of the parties and witnesses and promote the more just and efficient conduct of these cases, taken as a whole.
We also conclude that it makes sense to include the personal injury/wrongful death actions in the MDL. These actions do overlap factually with the other actions in this docket, and, indeed, plaintiffs in two of the three constituent personal injury/wrongful death actions specifically argue in favor of such inclusion, as do responding defendants. While these actions will require some amount of individualized discovery, in other respects they overlap with those that pursue only economic damage claims. The transferee judge has broad discretion to employ any number of pretrial techniques – such as establishing separate discovery and/or motion tracks – to address any differences among the cases and efficiently manage the various aspects of this litigation. See, e.g., In re Lehman Brothers Holdings, Inc., Securities & Employee Retirement Income Security Act (ERISA) Litigation, 598 F.Supp.2d 1362, 1364 (J.P.M.L. 2009).
Similarly, we do not find any strong reasons for separate treatment of claims brought under the OPA. In our judgment, carving out the OPA claims would only complicate matters, and denying centralization altogether is not a viable option. To the extent that non-compliance with the OPA’s presentment requirement becomes an issue, failure to include OPA claims in centralized proceedings would raise the prospect of multiple inconsistent rulings on that issue. See In re: National Arbitration Forum Antitrust Litigation, 682 F.Supp.2d 1343, 1345 (J.P.M.L. 2010).
Finally, the limitation proceeding brought by certain Transocean entities and currently pending in the Southern District of Texas is a potential tag-along action in this docket, and will be included on a forthcoming conditional transfer order (CTO). Although our preliminary assessment is that the action should be included in the centralized proceedings, we do not prejudge the matter. Once the CTO issues, the parties are free to object to the action’s transfer. See Rule 7.4, R.P.J.P.M.L., 199 F.R.D. at 435-36.
III.
The parties have advanced sound reasons for a large number of possible transferee districts and judges. Upon careful consideration, however, we have settled upon the Eastern District of Louisiana as the most appropriate district for this litigation. Without discounting the spill’s effects on other states, if there is a geographic and psychological “center of gravity” in this docket, then the Eastern District of Louisiana is closest to it. Considering all of the applicable factors, we have asked Judge Carl J. Barbier to serve as transferee judge. He has had a distinguished career as an attorney and now as a jurist. Moreover, during his twelve years on the bench, Judge Barbier has gained considerable MDL experience, and has been already actively managing dozens of cases in this docket. We have every confidence that he is well prepared to handle a litigation of this magnitude.
Some parties have expressed concern that recusals among Eastern District of Louisiana judges unduly limit our choices, and that even Judge Barbier may be subject to recusal. Notwithstanding these concerns, the Panel is quite comfortable with its choice. Judge Barbier is an exceptional jurist, who would be a wise selection for this assignment even had those other judges in the district been available. Moreover, the Fifth Circuit recently denied the petition of certain defendants for a writ of mandamus directing Judge Barbier to recuse himself.
Other parties have made the related suggestion that certain suggested transferee districts (including the Eastern District of Louisiana and the Southern District of Texas) might not present a level playing field for all parties and that we should search elsewhere for a “neutral” judge. With all due respect, we disagree with the premise of this argument. When federal judges assume the bench, all take an oath to administer justice in a fair and impartial manner to all parties equally. See 28 U.S.C. § 453. That oath applies just as much to a multidistrict litigation involving hundreds (or thousands) of actions and scores of parties as it does to a single civil action between one plaintiff and one defendant. Our experience is that transferee judges impartially carry out their duties and make tough decisions time and time again, and that they uniformly do so without engaging in any location specific favoritism.
In selecting Judge Barbier, we also decline the suggestion that, given the litigation’s scope and complexity, we should assign the docket to multiple transferee judges. Our experience teaches that most, if not all, multidistrict proceedings do not require the oversight of more than one able and energetic jurist, provided that he or she has the time and resources to handle the assignment. Moreover, Judge Barbier has at his disposal all the many assets of the Eastern District of Louisiana, which include magistrate judges and a clerk’s office accustomed to handling large MDLs. Judge Barbier may also choose to employ special masters and other case administration tools to facilitate certain aspects of the litigation. Manual for Complex Litigation, Fourth §§ 11.52, 11.53 (2004).
IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C. § 1407, the actions listed on Schedule A and pending outside the Eastern District of Louisiana are transferred to the Eastern District of Louisiana and, with the consent of that court, assigned to the Honorable Carl J. Barbier for coordinated or consolidated pretrial proceedings with the actions pending in that district and listed on Schedule A.
Blawgletter did see it coming.
You call your friend's cell phone. You wait briefly as the system recognizes your number and also your friend's. Once that happens, in most cases, you'll start hearing either a busy signal (bawmp-bawmp-bawmp) or a ringback tone.
But, just as people may customize the sounds their phones make when calls come in to them, your friend may have a non-standard ringback tone, such as a sample from a popular song, either for free or by paying extra.
The Federal Circuit grappled last week with a patent dispute over a software algorithm and method for customizing what you hear when you call your friend. Ring Plus accused Cingular (now AT&T Wireless) of infringing the patent with its Answer Tones service. The district court granted summary judgment of non-infringement against Ring Plus on the ground that its patent required the system to determine the busy or non-busy status of the receiving party's phone before starting to play the custom sound. But Cingular's offering began playing the Answer Tone before performing the busy/non-busy check. The Federal Circuit affirmed, agreeing that the patent claimed only a method for playing custom sounds after the busy/non-busy check. Ring Plus, Inc. v. Cingular Wireless Corp., No. 09-1537 (Fed. Cir. Aug. 6, 2010).
The panel also reversed summary judgment for Cingular on its inequitable conduct defense and affirmed the district court's decision not to disqualify Cingular's counsel.