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Pleading Justice Means Resolution Justice

by Victoria Pynchon
May 2009

From Settle It Now Negotiation Blog

Victoria Pynchon

We've taken to heart Justice Ruvolo's admonition that the Courts should put their resources into their central mission -- providing a litigation and trial forum to resolve disputes that the parties cannot or should not be required to resolve in "alternate" private forums.  

Though I'm an ADR fan, I don't think either arbitration or mediation should be utilized simply because the courts can't get your dispute resolved effectively, efficiently or in a cost-effective manner.

As we've noted before, no one wants to settle a case looking down the barrel of a gun.  Too often the "justice" system looks more like a .357 Magnum than the constitutionally mandated "fair trial" we've been brought up to believe in. 

Free the Defendants -- Dismiss Dubious Pleadings

Courts are at their most frustrating when they permit dubious or skeletal Complaints to stand, thereby requiring defendants to expend hundreds of thousands of dollars in legal fees to engage in the discovery and further pre-trial practice that they hope will extricate them from the litigation at the end of a (very long) day.  

Every time a Court requires the Plaintiff's Complaint to rise above the level of speculation, a justice angel earns her wings.

So it is with the Supreme Court's recent decision in Bell Atlantic v. Twombly, summarized by a recent Mayer Brown Antitrust Client Alert  Supreme Court Decision Signals a Major Victory for Antitrust Defendants in a Variety of Industries. (You know, you really should be blogging these great intellectual treasures -- talk to my friend Kevin O'Keefe at LexBlog about exhuming your best articles from the firm's web site and coming out into the blogosphere to play!)

Here's the good news on the new standard of pleading antitrust counts as reported by Mayer Brown:   

 The Court’s ruling brings Section 1 pleading rules into line with previous decisions that, at later stages of the litigation, a plaintiff’s proof must tend to exclude the possibility that defendants were acting independently. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986); Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752 (1984).

And it finally inters the oft-cited statement in Conley v. Gibson, 355 U.S. 41, 47 (1957), that a complaint should not be dismissed unless “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief”—a statement that some courts have held to permit highly speculative pleading revealing only “the theory of a claim.” Stating that this “famous observation has earned its retirement,” the Court concluded that it is “best forgotten as an incomplete, negative gloss” on standards that apply only once a claim has been stated adequately.

The Court’s decision has wide-reaching implications for federal antitrust litigation and signals a victory for antitrust defendants in a variety of industries. Paired with Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336 (2005), this case reflects the Court’s sensitivity to the pressures of settlement prior to discovery and its concomitant willingness to interpret strictly the Rule 8 entitlement requirement.  (emphasis mine).

For more information about your antitrust ligitiation, Mayer's Client Alert suggests you contact Richard J. Favretto or Gary A. Winters, both in Mayer's D.C. office.  

Biography


Attorney-mediator Victoria Pynchon is a panelist with ADR Services, Inc. Ms. Pynchon was awarded her LL.M Degree in Dispute Resolution from the Straus Institute in May of 2006, after 25 years of complex commercial litigation practice, with sub-specialties in intellectual property, securities fraud, antitrust, insurance coverage, consumer class actions and all types of business torts and contract disputes.  During her two years of full-time neutral practice, she has co-mediated both mandatory and voluntary settlement conferences with Los Angeles Superior Court Judges Alexander Williams, III and Victoria Chaney.  As a result of her work with Judge Chaney in the Complex Court at Central Civil West, Ms. Pynchon has gained significant experience mediating construction defect litigation.  Ms. Pynchon received her J.D., Order of the Coif, from the U.C. Davis School of Law. 



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Website: www.settlenow.com

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