a California-centric collection of comments and resources about complex litigation and class action practice
The California Supreme Court held its (usually) weekly conference today. The only notable event was:
The California Supreme Court held its (usually) weekly conference today. Notable results include:
No other case developments jumped out at me as significant this week.
In other Supreme Court news, the briefs for the October oral argument calendar are now available here. Lots of "People v." cases in October, so it's not as exciting as it sounds (unless you are a District Attorney...or a criminal).
So Brinker Restaurant v. Superior Court (Hohnbaum) moves a bit closer to the light at the end of the tunnel. After extensions were granted, the Petitioner and the Real Parties in Interest will both file their consolidated answers to amicus briefs on October 8, 2009. But that's no small task; by my quick count, there are 22 amicus briefs filed in Brinker (view the docket). That's twenty-two, give or take, in case you thought I double-clutched on the keyboard. I'd say good cause exists for an extension to file consolidated answers. Now, without having seen the amicus briefs, what do think the odds are that most of those amicus briefs (1) do nothing but repeat arguments that were in the 100+ page briefs by the parties, and/or (2) repeat other amicus briefs? My bet is that about 90% of the amicus briefing from both sides could be run through a shredder with no loss of any argument.
Turning back to the timetable for resolution, imagine that you are a research attorney at the Supreme Court. Imagine you have cases to review aside from Brinker. Imagine you receive a couple of briefs in the 125-page range and around 22 amicus briefs. Imagine they fall on you and crush your spine. How long do you think it would take you to work up a draft opinion with a Justice? Factor in the holidays, and I now think that my estimate of oral argument in March 2010 is a very optimistic. I'm officially adjusting The Complex Litigator's Brinker Opinion Release Date from June 2010 to August 2010. I should work up a graphic for this, like "Stormwatch Winter 2009" or "Firestorm!" It will need shading and some sort of 3-D effect.
And we have a logo. Look for this striking image as a clue to breaking news about Brinker. I know I promised something with a strange 3-D effect, but the American flag motif captures the spirit of this epic struggle.
With no conference last week, September 9, 2009 was an active day for the California Supreme Court. Some notable actions include:
The California Supreme Court is promoting a new feature on the California Courts website. Legal briefs for cases on the September Oral Argument calendar can be found on this page. The cases and briefs curently available include:
S149752: Roby v. Mckesson
Petition for review (PDF, 1,712 KB)
Answer brief (PDF, 2,998 KB)
Reply to answer petition for review (PDF, 891 KB)
Opening brief on the merits (PDF, 2,740 KB)
Answer brief on the merits (PDF, 3,733 KB)
Reply brief on the merits (PDF, 2,591 KB)
S163335: Costco Wholesale Corp. v. Superior Court of Los Angeles
Petition for review (PDF, 2,595 KB)
Opening brief on the merits (PDF, 2,623 KB)
Answer brief on the merits (PDF, 1,201 KB)
Reply brief on the merits (PDF, 2,623 KB)
S161385: Schacter v. Citigroup, Inc. et al.
Petition for review (PDF, 1,293 KB)
Opening brief on the merits (PDF, 2,131 KB)
Answer brief on the merits (PDF, 1,904 KB)
Reply brief on the merits (PDF, 1,257 KB)
S166747: Johnson v. Greenelsh
Opening brief on the merits (PDF, 1,211 KB)
Answer brief on the merits (PDF, 2,152 KB)
Reply brief on the merits (PDF, 530 KB)
S158852: People v. Stevens (Lorenzo)
Petition for review (PDF, 2,081 KB)
Opening brief on the merits (PDF, 1,269 KB)
Answer brief on the merits (PDF, 2,461 KB)
Reply brief on the merits (PDF, 866 KB)
S163811: People v. Concha (Reyas) and Hernandez (Julio)
Petition for review (PDF, 2,844 KB)
Petition for review (PDF, 2,970 KB)
Opening brief on the merits (PDF, 1,445 KB)
Opening brief on the merits (PDF, 981 KB)
Answer brief on the merits (PDF, 1,196 KB)
Reply brief on the merits (PDF, 1,070 KB)
Reply brief on the merits (PDF, 762 KB)
This will prove to be an exceptional resource if briefs continue to be made available in this way. An interesting implication of this free public access is whether it in any way resolves the recent copyright controversy about exclusive access to briefs by Westlaw and Lexis.
I wrote yesterday about RECAP, an exciting project to collect documents from PACER and serve them up for free to the public, through a Firefox extension. At about that same time, a small controversy over RECAP began brewing. Eric Turkewitz, at New York Personal Injury Law Blog, reported on the controversy, saying, "Federal courts around the country are now sending out notices to litigants about the dangers of a computer program called RECAP, which if downloaded will automatically take documents that you purchase from the court's PACER system and place them into a free, publicly available database." See Blog Post. Carolyn Elefant, at Legal Blog Watch, covered this story as well, observing, "Though RECAP doesn't appear to violate any of PACER's terms and conditions of use, some federal courts are warning lawyers who have installed RECAP to exercise caution in use." In her post, she reported on Paul Alan Levy's comments that the District Court warning "is not a genuine security warning, but an attempt to intimidate users from installing RECAP. After all, as more federal court documents become accessible at no cost, the federal court system will lose revenues."
But before I could report on this controversy, it appears to have subsided. Consumer Law & Policy Blog is now reporting that Deputy Chief for IT Policy and Budget at the Administrative Office of the United States courts has no problem with the use of RECAP.
Springboarding off a litany of criticisms directed at federal District Court Judge Manuel L. Real, the Los Angeles Times reported on comments by a judicial misconduct scholar that asked whether any misconduct by a federal Judge was sufficient to rise to the level of "willful misconduct." Carol J. Williams, Critics want to bench Judge Manuel L. Real (August 16, 2009) www.latimes.com. It's worth a read, if only to threaten that last little spark of faith in the system.
The California Supreme Court held its (usually) weekly conference today. Notable results include:
I'm as guilty of this lazy thought process as the next lawyer. I've always assumed, perhaps incorrectly, that when a brief was filed with a court, it was some sort of public commodity, available for any use. Not so fast. The July 23, 2009 Daily Journal ran a story about Irvine attorney Edmond Connor, who wrote to the California Supreme Court to express concern about the the practice of providing all appellate briefs filed in California to Westlaw and Lexis, free of charge. Paul Lomio, LexisNexis and Weslaw violating copyright? (July 23, 2009) legalresearchplus.com.
The Volokh Conspiracy stepped into the discussion:
The argument for infringement is actually moderately strong. Like most other documents, briefs are protected by copyright the moment they are written. The fact that they're filed in court doesn't waive any copyright. Lexis and Westlaw's distribution of the briefs is thus presumptively copyright infrigngement.
Eugene Volokh, Do Lexis and Westlaw Infringe Copyright When They Post Briefs Filed in Court? (July 23, 2009) volokh.com. Legal Research Plus followed up with a link to the actual letter by Mr. Connor (in which he suggests that a class action could be one way to resolve the issue). The letter is rather persuasive in describing the current system as unfairly favoring two commercial actors at the expense of the copyright holders. I'm going to go out on a limb and say that it sounds like a federal class action waiting to happen if a corrective measure isn't implemented.
Via: @richards1000 (twitter page)
This blog's last post on Brinker Restaurant v. Superior Court (Hohnbaum) indicated that the Reply Brief would be filed on July 6, 2009. After a few unexpected bumps, the Reply Brief was filed on July 20, 2009. The case is fully briefed. Now the amicus bloodbath may commence.
In other Supreme Court news, today the Supreme Court denied review in Gomez v. Lincare (April 28, 2009). See this prior post for information about Gomez.
And in Miller v. Bank of America, 46 Cal. 4th 630 (2009), the Supreme Court denied a Petition for Modification of the opinion.
The Complex Litigator reports on developments in related areas of class action and complex litigation. It is a resource for legal professionals to use as a tool for examining different viewpoints related to changing legal precedent. H. Scott Leviant is the editor-in-chief and primary author of The Complex Litigator.
