Notice Pleading Restoration Act of 2009: Back to the Future

From the BLT and PrawfsBlawg, we learn that Senator Arlen Specter has fired up the DeLorean in effort to re-relax recently tightened pleading standards under Rule 12(b)(6). The good senator has introduced legislation that would return the pleading standard to that established under Conley v. Gibson, decided in 1957.

Consider this post our "short and plain statement" with regard to the proposed act.

Oh, Baby

It's been several weeks since we've posted. What can we say? Work, summer weather, and a lack of interesting (to us, at least) news have conspired against us.

Today we finally were moved to post after reading the Honorable Anita Brody's (E.D. Pa) decision granting class certification in McDonough v. Toys "R" Us.

Judge Brody's decision is of interest because the subclasses it certifies allege that Babies "R" Us (of which Toys "R" Us is the parent) conspired with makers of pricy baby products to restrict competition in violation of federal antitrust laws. In certifying the class, the court applied Leegan Creative Leather Products, the 2007 Supreme Court case that held vertical price restraints are not per se illegal but must be evaluated by the court under the "rule of reason."

Also interesting is that the court relied on testimony of economic experts to determine that the plaintiffs satisfied their Rule 23 burden under In re: Hydrogen Peroxide Antitrust Litigation, a fairly recent Third Circuit decision that clarified that more than a threshold showing is required for certification.

The nature of the claims, the costs of the products at issue (Peg Perego and Maclaren strollers, Britax carseats, the BabyBjorn carrier, Medela breastpumps, and Kidsline bedding), and the potential size of the class lead us to believe this case bears watching.