Litigation
Pamela Tikellis (Chimicles & Tikellis LLP) reviews the recent trend that has seen the Delaware Court of Chancery be more willing to stay litigation in favor of actions pending elsewhere
PLI: In the last year or so, the Delaware Court of Chancery has been
more willing to stay litigation in favor of actions pending elsewhere.
Can you review this evolution and comment on how the possibility of a
stay impacts strategy decisions?
PAMELA TIKELLIS: Stockholder class and derivative actions against or on
behalf of Delaware corporations brought in Delaware are often filed in
other jurisdictions as well. Most of these actions can properly be
brought by stockholders in state or federal court in the state where
the subject corporation has its principal place of business. In recent
years, the practice of instituting suits in the state of the
corporation's principal place of business has increased steadily.
Often, the "other" jurisdiction is the situs
of federal securities litigation relating to the same set of facts and
circumstances, where the claims include federal statutory claims along
with pendent state fiduciary duty claims.
Refrigerate After Opening? Avoiding Evidence Spoliation
Does anyone (maybe there are etymologists out there) know why
spoliation isn't spoilation, or vice versa—why isn't spoil spoliate?
That's an English conundrum Toolbox has never been able to figure out.
There is a word "spoilation," which means "the act of stripping and taking by force."
And apparently, spoliation is a synonym of spoilation. (But Microsoft
Word auto-corrects "spoilation" to "spoliation," so Toolbox says,
"Uncle," and accepts this as something that will not be resolved in
this issue, especially when all that matters here is spoliation, which
is the "destruction or significant alteration of evidence, or the
failure to preserve property for another's use as evidence in pending
or reasonably foreseeable litigation." West v. Goodyear Tire & Rubber Co.,
167 F.3d 776, 779 (2d Cir. 1999). The Model Rules of Professional
Conduct make spoliation a no-no (see Rule 3.4), so no matter how you
slice it, engaging in spoliation can spoil your practice. But in a
world where evidence is created by the minute (those darned computers),
how do you know if you're not engaging in spoliation. (Would that be
expoliating?)
Continue reading "Refrigerate After Opening? Avoiding Evidence Spoliation"
Asim Bhansali (Keker & Van Nest LLP) reviews the Federal Circuit's decision in In Re Ciprofloxacin
PLI: What is the status of reverse-payment settlements after the Federal Circuit's decision in In Re Ciprofloxacin?
ASIM BHANSALI: The Federal Circuit's decision in In re: Ciprofloxacin Hydrochloride Antitrust Litigation1
affirmed brand and generic drug makers' rights to enter into an
agreement where the generic stays off the market in exchange for a
so-called reverse payment. The Federal Circuit held that any
restriction that the brand drug maker can reasonably claim falls within
its patent's scope cannot run afoul of the antitrust laws.
Significantly, the Federal Circuit held that such a restriction should
be sustained, without either applying a rule of reason analysis or
evaluating the strength of any potential challenges to the patent's
validity. The Federal Circuit's decision followed the Second Circuit's
decision on the same issue in In re: Tamoxifen Citrate Antitrust Litigation.2 To the extent they set forth a more restrictive approach to reviewing brand-generic patent settlements than the Tamoxifen decision, the Federal Circuit distinguished the 11th Circuit's precedents, including Schering-Plough Corp. v. FTC.3
Susan A. Powell, Ph.D. (Strategic Litigation Research) offers a trial consultant's view of how lawyer's weaken their own cases through inadequate deposition practice
PLI: As a trial consultant, what do you see most that weakens a lawyer's case?
SUSAN A. POWELL: The common assumption is that a jury consultant should
be brought on board in the latter stages of a case in order to help
"spin" the story for jurors. However, what a good trial consultant
often finds at this stage of a case is that the record, developed
during the process of discovery, has made the job of crafting a
"sellable" message to a jury (or judge or arbitration panel) very
difficult indeed. In fact, misguided depositions are frequently
fundamental roadblocks in developing a consistent, concise and
compelling story for any audience. The record left behind can make the
ability to go forward with a winning story very difficult, and
sometimes impossible.
Stuart T. Rossman: Enforceability of state court nationwide class actions remains a challenge to the bar
PLI: Are state court nationwide class action settlements enforceable?
STUART T. ROSSMAN: A question that continues to confront class action
practitioners is whether nationwide class action settlements approved by a
state court are effective and enforceable in all other jurisdictions where
putative class members reside. Two recent state court rulings on this
challenging issue are instructive.
Stuart T. Rossman: Where have all the diversity cases gone?
PLI: Can you bring us up to
date on the Federal Judicial Center's study of the Class Actions Fairness Act
of 2005 (CAFA)?
STUART T. ROSSMAN: In November, 2008, the Federal Judicial Center issued "Impact
of the Class Action Fairness Act on the Federal Courts: Preliminary Findings
from Phase Two's Pre-CAFA Sample of Diversity Class Actions,"
principally authored by Emery G. Lee III and Thomas E. Willging. The report
represents preliminary findings from Phase Two of the ongoing study of [CAFA].
Continue reading "Stuart T. Rossman: Where have all the diversity cases gone? "
Keith M. Fleischman: No two successful settlements are exactly alike, but they share fundamental elements
PLI:
Can you review, generally, the steps and strategies that make up a successful
settlement to litigation?
KEITH M. FLEISCHMAN: By definition, a
settlement ends litigation earlier than it would by exhaustion of all remedies
in a tribunal. Naturally, some settlements are more successful than others. For
many practitioners, settlements are successful when they advance the balance of
justice or, in other words, when the potential benefit a party gives up by
foregoing a trial, an appeal or further discovery, equals the risk of
uncertainty in a jury verdict or judicial decision making.
Is Being Selected Last For A Jury As Humiliating As Being Selected Last For Volleyball In Gym Class? Choosing The Best Possible Jury
From the 12 Angry Men Department. Toolbox has always wanted to sit on a jury. But as Toolbox has never made it beyond voir dire, it can't say whether any of the jury pools it has been a part of rendered a good jury, let along the "best possible jury." By Toolbox's reckoning, any jury without Henry Fonda (or Jack Lemmon, if you prefer the TV remake) can't be the best. (The cast of the remake included as jurors George C. Scott, Ossie Davis, Armin Mueller-Stahl, Tony Danza, James Gandolfini, Hume Cronyn, Edward James Olmos and William Peterson — that's a jury.) Anyway, a number of people who made the juries for which Toolbox was eligible were trying, transparently, to answer voir dire questions in a manner such that they would be excluded.
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