• Selected
• Entire List

Abstract:
Two recent Supreme Court cases have stirred the world of pleading civil litigation. Bell Atlantic v. Twombly introduced the concept “plausibility pleading” in which the plaintiff is required to plead facts sufficient to suggest that the claim for relief is “plausible,” and Ashcroft v. Iqbal affirmed that the plausibility standard applies to all aspects of a complaint subject to Rule 8(a) of the Federal Rules of Civil Procedure. This Article examines the consequences of the plausibility standard for pleadings in complex litigation cases.

Twombly and Iqbal have opened the door to the use of cost/benefit analysis in pleading. Given this possibility, the Article argues that it is unacceptable to automatically equate the existence of a class action with a high cost of litigation because this fails to differentiate among types of class actions, and to differentiate class actions from other potentially costly types of litigation, and because it fails to account for the efficiencies and judicial economy that some class actions are, themselves, supposed to create.

The Article then addresses the application of the Twombly/Iqbal standard to allegations of plaintiff conduct. Complex litigation pleadings, like pleadings in ordinary lawsuits, contain allegations of conduct and condition that plaintiffs make about themselves as well as those made about defendants or third parties. A more robust understanding of the plausibility standard emerges through this division of allegations about plaintiffs and allegations about defendants. Allegations of plaintiff conduct in a complex litigation complaint sometimes contain speculation about the conduct or condition of other plaintiffs as well as the conduct of defendants. This peculiarity of complex litigation pleading creates an additional arena of allegations from which one might attack the factual sufficiency of a complaint.

The Article introduces a key component of pleading, the plaintiff neutrality principle, which states that when a plaintiff makes neutral allegation concerning her own condition or conduct, that is, subject to inferences of both lawful and unlawful conduct on the part of the defendant, it is not speculative and therefore entitled to a presumption of truth for the purposes of deciding a Rule 12(b)(6) motion to dismiss. In the complex litigation context, the group plaintiff neutrality principle addresses how inferences drawn from “neutral” behavior should apply to allegations of class members’ conduct.

The Article concludes by analyzing situations in which the baseline for plaintiff conduct differs because of publicly available data about the condition of a group of plaintiffs, particularly those that are consolidated through multidistrict litigation, rather than as class actions. It concludes that application of the Twombly/Iqbal principle to this context may not be as harmful as application to allegations about defendant conduct because of the plaintiff’s ability to access the relevant information and, if necessary, replead the case.

12(b)(6), Rule 8, Twombly, Bell Atlantic, Iqbal, Ashcroft, motion to dismiss, pleading, notice, conclusory, plausible, plausibility, class actions, multidistrict litigation, complex litigation

Abstract:
Within the past decade, two large scale catastrophes - the terrorist attacks of September 11, 2001 and Hurricanes Katrina and Rita - have been the recent laboratories of new congressional provisions for the federalization and aggregation of mass tort claims. In the case of September 11, the litigation has been shaped by the Air Transportation Safety and System Stabilization Act (ATSSSA) an aggregation device that Congress devised specifically to address that particular catastrophe.

The Hurricane Katrina litigation has seen the use (and attempted use) of the Multiparty, Multiforum Trial Jurisdiction Act (MMTJA), an event jurisdiction device of general application that Congress established in 2002. This article explores three aspects of post-catastrophe litigation where the consolidation of cases, or the statutes that govern the consolidation of such cases, raise issues about how to think about disaster litigation as a singular category. After providing a brief summary of the paths of the September 11th and Canal Breach litigations, this article demonstrates that when the boundaries of federal jurisdiction are shaped by reference to events, this affects how cases may be consolidated, particularly with respect to Congress's degree of specificity in naming an event as the organizing principle of jurisdiction. These two federal statutes challenge courts to consider how closely, as a matter of law, federal jurisdiction based on the ATSSSA and the MMTJA and the consolidation of cases must be linked under these respective statutes. The article then turns to a discussion of the role that courts of appeals play in determining the boundaries of federal jurisdiction and consolidation for disaster litigation. The article ends with a discussion of the practical and administrative concerns of consolidated disaster litigation. I argue that the September 11th and Canal Breach litigations show that there can be a problem for judges and litigants of sorting common from uncommon issues in the context of a district-wide consolidation organized around an event.

civil procedure, federal courts, september 11, hurricane Katrina, complex litigation, multidistrict litigation, jurisdiction, mass torts, toxic torts, aviation, environmental litigation, federal appellate jurisdiction

Abstract:
Shortly after the tragic events of September 11, 2001, Congress passed the Air Transportation Safety and System Stabilization Act (ATSSSA). The September 11th Victim Compensation Fund (VCF) was the centerpiece of the statute and provided a source of no-fault compensation to the tragedy's victims and victims' families. The ATSSSA also allowed victims to elect to pursue traditional litigation instead.

The ATSSSA contains three jurisdictional features that have shaped the path of the litigation. The Act created a federal cause of action "for damages arising out of" the terrorist related aircraft crashes; it gave the Southern District of New York original and exclusive jurisdiction over all actions "resulting from or relating to the terrorist-related aircraft crashes." Finally, it implemented a liability cap by limiting recovery in all actions to the defendants' available liability insurance. These jurisdictional aspects of the "traditional" litigation option under the ATSSSA contain unusual and practically unprecedented elements, yet they have received almost no scholarly attention. This Article attempts to fill that gap by telling the story of the course of the September 11th litigation, tracking the challenges and issues that have arisen as a result of the ATSSSA coordination mandate, and exploring the relationship between federalization of forum and aggregation of claims.

The jurisdictional puzzles seen in the September 11th litigation call for two new labels. "Event jurisdiction" refers to Congress's choice to give the federal courts subject matter jurisdiction over an "event" of perceived national importance, rather than locating subject matter jurisdiction over a certain class of cases or type of claim. The second phenomenon deserves the label "protective coordination" because, like protective jurisdiction, it evinces a congressional desire to protect certain real or perceived federal interests by manipulating the shape and direction of certain classes of lawsuits. The Article concludes by suggesting how Congress might better evaluate post-disaster litigation legislation in the future.

civil procedure, federal courts, september 11, complex litigation, multidistrict litigation, jurisdiction, mass torts, toxic torts, aviation