Wednesday, May 27, 2009

But Is She a Cat Person or a Dog Person?

From The BLT,  we learn that the ABA's review of Supreme Court nominee Sonia Sotomayor has begun. The ABA Standing Committee on the Federal Judiciary will evaluate Judge Sotomayor's integrity, professional competence, and judicial temperment, but will not take into account her "philosophy, political affiliation, or ideology."

No worries there, the mainstream press and the blawgs are undertaking that review.  CNN's Quick Vote poll asks readers whether they "agree with" President Obama's selection.  When we visited, 341,300 legal scholars had weighed in.  (Not feeling qualified to vote, we didn't.)  It's hard to believe that all the voters had ever heard of Sonia Sotomayor before last week, let alone had any principled basis for agreeing or disagreeing with her selection: maybe they were sports fans?  Deadspin assures us that she is "Not A Squishy, Wild-Eyed Commie, After All".  

Count our vote as  "glad that the ABA will once again be vetting the Supreme Court nominee."

Thursday, May 21, 2009

Obama's Preemption Memo: A Return to Normal

Yesterday, President Obama issued a two-page memo that did three things:   First, it recognized that, under the Bush administration, some agencies and departments announced that their regulations preempted state law even when should not really have done so.  Second, it provided that his administration would not do that. 

So far, not a particularly controversial memo, right?.  If there's no legitimate basis to preempt state law, don't do it.  If you think there is a basis to do so, do the legal analysis to make sure.

What has both sides of counsel table all whipped up is the third part.  Because some recently enacted (say, oh, in the past ten years) regulations contained preambles that stated they preempted state law (or codified preemption provisions) even where there was no explicit preemption by Congress or other sufficient legal basis, Obama also ordered all department and agency heads to review their regulations to decide whether those statements and provisions are "justified under applicable legal principles governing preemption."  If a department and agency head determines that a preemption statement or provision cannot be justified, then he or she is to take "appropriate action."

According to the Wall Street Journal and some commentators (including Overlawyered,  The BLT, and The WSJ Law Blog) this is a big win for the plaintiff's bar.

But isn't it really just a return to the, you know, law?  As the WSJ article noted, back in March, in Wyeth v. Levine, The Supreme Court struck down a preemption statement in the preamble to a 2006 FDA regulation, calling it, among other things, "inherently suspect."

Look, we defend companies, so we do understand the concern that returning to established preemption principles could lead to a spate of costly (and certainly some friviolous) lawsuits.  A return to the rule of law might just be worth it.

Thursday, May 14, 2009

Oedipus . . . Meh.

News that Microsoft dropped K&L Gates from its list of preferred law firms generated a lot of buzz today.  See, just by way of example, coverage here, here, and here.

The prevailing story line---that Bill Gates fired his father's firm---may be juicy, but it is a work of fiction.  It certainly does not, as has been claimed, sound the death knell for the importance of personal relationships between clients and their counsel.

Yes, the Gates in K&L Gates (the product of a 2007 merger between Kirkpatrick & Lockhart and Preston Gates & Ellis) is Bill Gates, Sr.  Yes, dad's firm took Microsoft public.  Twenty-three years ago.  And, yes, Microsoft dropped K&L Gates from its list of ten preferred law firms.

But this is a hardly a case of "son fires his dad."  First, Sr. retired from the firm in 1998. Second, we suspect (although we could be wrong) that someone other than Jr. decided which firms made the list of preferred providers.  Third, K&L Gates self-identifies as a firm of "1,900 lawyers on three continents" and is dwarfed by Microsoft, which has approximately 90,000 employees---not exactly a cozy family relationship.  And, fourth, Microsoft issued a statement emphasizing that it was not cutting ties with the firm.

Hey, don't let the facts get in the way of a good Greek tragedy narrative, though.

UPDATE:  An interesting contrast from, which has a current story about those new Microsoft ads asking WWBGD? and recognizing that Gates isn't making the decisions at Microsoft these days.

Wednesday, May 13, 2009

Teflon Class Action Dropped

On May 1, U.S. District Judge Ronald Longstaff (Southern District of Iowa) signed an order dismissing the Teflon MDL action against DuPont.  After unsuccessfully appealing the court's denial of class certification to the Eighth Circuit, the plaintiffs have thrown in the towel.  [Ed. note---feel free to thank me for resisting the urge to make the "lawsuit didn't stick" pun that will no doubt abound.]

The opinion denying class cert. was issued in December of 2008 and previously was discussed at some length on the Class Action Defense Blog and the MassTortDefense Blog.  The court found that the plaintiffs could not satisfy several of the explicit and "implicit" requirements of Rule 23. The most interesting part of the opinion, at least to me, was this quote from the court's discussion of the insufficiency of the proposed class definition: 
In other words, certifying a class with a weak definition creates more problems later in the proceeding.  If the parties are unable to establish membership in a particular sub-class in an objective fashion at the commencement of the litigation, it is highly unlikely that liability and/or damages can later be established without relying on lengthy, individualized inquiry.
This issue---the inability to objectively determine class membership---seems to crop up regularly in putative consumer classes seeking economic damages only.  Given that consumers' purchasing decisions are highly individualized, it seems logical that a class of consumers seeking economic damages will call for individualized inquiries.  Maybe the class action vehicle just isn't suited to such consumer classes?

Will PA Expand Products Liability Claims?

Last month, the Third Circuit anticipated that the Pennsylvania Supreme Court would abandon Pennsylvania's particularly strict strict liability standard in favor of the standard set forth in the Restatement (Third) of Torts.  In Berrier v. Simplicity Manufacturing, Inc., the Third Circuit considered whether a five-year-old girl who was injured when her grandfather backed over her foot with a riding lawnmower could recover under Pennsylvania’s strict products liability law.  The lawnmower in question was not equipped with back-over protection.

The Third Circuit predicted that, if confronted with the question, the Pennsylvania Supreme Court would afford a bystander who was not the intended user of a product a strict liability cause of action to recover for injuries sustained while an intended user was operating the manufacturer’s product.  This outcome is consistent with the Third Restatement position but represents a departure from Pennsylvania state law.

Manufacturers will want to watch what the Pennsylvania Supreme Court does in the pending caseBugosh v. I.U. North America, Inc., 942 A.2d 897 (Pa. 2008), which presents this very question.