Posts belonging to Category Motion Practice

Following an extraordinary procedural journey, the case that began as Price v. Phillip Morris and yielded a $10 billion verdict against the tobacco giant in 2003 has been revived.  The plaintiff class had alleged that Phillip Morris’s advertising, for what it called “light” and “low tar or nicotine” cigarettes, was deceptive, as these cigarettes were not in fact safer than regular cigarettes, and that the company knew it.

After the plaintiffs’ initial victory in Price, Phillip Morris appealed.  The case then bypassed the Appellate Court of Illinois and went straight to the Illinois Supreme Court, where the lower court’s verdict was reversed based on Philip Morris’s claim that the Federal Trade Commission (FTC) had authorized cigarette companies to use “light, low or reduced” in descriptions of cigarettes.  See Price v. Philip Morris, Inc., 2005 Ill. LEXIS 2071 (Ill. 2005) (available here).  Thereafter, the U.S. Supreme Court declined to hear an appeal of the Illinois Supreme Court’s decision, and the trial court dismissed the case in 2006.

Two years later, the U.S. Supreme Court reviewed a case that took up similar preemption issues — Altria Group, Inc. v. Good, 555 U.S. 70 (2008) — and held that the Federal Cigarette Labeling and Advertising Act (FCLAA), 15 U.S.C. §§1331-41 (2011), did not preempt a claim under a Maine statute (similar to the Illinois statute) for deceptive advertising of “light” cigarettes (opinion available here).  The Price plaintiffs immediately filed an appeal with the Fifth District Appellate Court on the grounds that the Court’s ruling in Good demonstrated that the Illinois Supreme Court incorrectly decided Price.  The Fifth District agreed (dismissing Phillip Morris’s argument that plaintiffs’ appeal was untimely), and has reinstated the case and remanded it back to the trial court for further proceedings.

Through a lengthy and convoluted legal process that began in early 2003, Price v. Phillip Morris has come full circle and once again sits in the Madison County Circuit Court, awaiting whatever “further proceedings” may be required to finally resolve this case.  Phillip Morris is expected to appeal the Fifth District’s decision to the Illinois Supreme Court.

Throughout Tuesday’s oral argument in Dukes v. Wal-Mart, the Justices appeared to divide along expected ideological lines. The conservative justices, including perennial “swing vote” Justice Kennedy, seemed dubious of the plaintiffs’ theory that diffuse, store-level decision making was sufficient to establish the cohesive policy or practice necessary for class treatment. Moreover, despite the issue formally before the Court being whether the elements for class certification have been satisfied (not whether Wal-Mart committed the sexual discrimination that is alleged), the Court’s conservative bloc showed an apparent sympathy for Wal-Mart’s argument that the company has, in the words of Wal-Mart’s lead attorney “a very strong policy against discrimination.”

Though in more muted terms, the Court’s liberal Justices — Justices Breyer, Ginsburg, Kagan and Sotomayor — appeared to accept the idea that permitting store managers to use subjective criteria in evaluating promotion decisions can create the equivalent of a coherent, company-wide policy and satisfy the commonality requirement. Supported by testimony from sociology experts, the plaintiffs theorize that, despite roughly three-quarters of Wal-Mart’s non-managerial employees being women, fewer than half of managers are women because the subjective decision-making criteria allow discriminatory motivations to tacitly infect the promotion process.

In an unusually spirited response, Justice Kagan squarely addressed Wal-Mart’s defense to certification based on a lack of commonality, and took issue with the contention of Theordore Boutros, Wal-Mart’s lead counsel, that “[Plaintiffs’] argument is that the common policy is giving tens of thousands of individuals discretion to do whatever they want. That is not commonality. It’s the opposite.” Justice Kagan interjected, “I don’t think that’s quite fair, Mr. Boutros,” and explained, “I think their argument was that the common policy was one of . . . using factors that allowed gender discrimination to come into all employment decisions. And in Watson [v. Fort Worth Bank & Trust, 487 U.S. 977 (1988)], we suggested that that was a policy, a policy of using subjective factors only, when making employment decisions. That’s exactly the policy that was alleged here.”

The full transcript of Tuesday’s oral argument is available here.

Litigators from outside California’s Central District are often astonished to learn of the Central District Local Rule requiring that all motions for class certification be filed within 90 days of the case’s commencement. See C.D. L.R. 23-3 (available here). This astonishment is grounded in the fact that, in virtually all circumstances, it is impossible to file class certification papers within just 90 days.

The typical pre- and early-litigation chronology leaves a plaintiff with no discovery at the end of the 90-day period. Yet far from being a toothless, ignored local rule, the Central District’s 90-Day Rule is enforced, often without mercy, resulting in the dismissal of perfectly meritorious class actions because they could not comply with an impracticable deadline.

To obtain the discovery necessary to support class certification, there must first be a Scheduling Order in place— which itself regularly takes longer than 90 days. Moreover, once discovery is propounded and in the (quite likely) event that the defendant facing class-wide liability did not provide perfectly responsive and comprehensive discovery responses, a motion to compel is necessitated. However, once the parties have met and conferred (within 10 days of the movant’s request to do so), drafted a joint stipulation (7 days), drafted a response (another 7 days) and noticed the motion to compel (21 more days, if there is perfect congruence with the judge’s law and motion schedule), half of the 90-day period is already consumed, assuming that a Scheduling Order had been issued on day one of the case. Thus, even under this best-case scenario, it is effectively impossible to properly support a class certification motion with evidence within the prescribed 90-day window.

What about extensions? Defendants can, of course, agree to stipulate to an extension—or not. In any event, it is ultimately up to the particular judge to decide whether or not to enter a stipulation excusing compliance with the 90-Day Rule, and the preferences of Central District judges varies widely.

A better solution: Eliminate the 90-Day Rule. The Southern District of New York recently abandoned a similarly unrealistic deadline when members of the bar spoke up and educated the Rules Committee as to the problem. Here in the Central District, there is now an opportunity to take action on this issue. Eric B. Kingsley (of Kingsley & Kingsley, APC) is currently circulating an “open letter” to the Central District Rules Committee detailing the 90-Day Rule’s failings and the need for change. Mr. Kingsley is asking that members of the Central District bar undersign and endorse the letter. This is the proverbial “no-brainer”; every practitioner should support the reform of the 90-Day Rule, even defendants’ counsel that sometimes benefit from it. The 90-Day Rule is antiquated and unfair, and it is time for all concerned to take steps to eliminate it.