Complex Litigation

New York Law Journal

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Supreme Court Addresses Problems of Size

Christopher M. Mason, a partner with Nixon Peabody, and Devon Haft Little and Sherli Yeroushalmi, associates at the firm, write that the U.S. Supreme Court has recently been struggling with a problem not unlike that of Goldilocks: there are many disputes before them, but rather than being too hot or too cold, some of those disputes are too big to be lawsuits or arbitrations, and others are too small not to be lawsuits (as opposed to arbitrations). And some are "just right."

Rebutting the Presumption of Reliance in Securities Class Actions

Roger A. Cooper, Matthew M. Bunda and Anthony M. Shults of Cleary Gottlieb Steen & Hamilton write: Because few securities cases go to trial, there have been few cases in which courts have considered whether defendants have, on an individual basis, rebutted the presumption of reliance established in 'Basic v. Levinson.' A recent decision from the Southern District of New York, however, "is just such an extraordinary case."

Viability of Rule 23(b)(3) Cases After 'Dukes', 'Amgen' and 'Comcast'

Barry M. Kazan, a partner at Thompson Hine, and Gabrielle Y. Vázquez, an associate with the firm, write that almost two years after the Supreme Court handed down its landmark class certification decision, the court has clarified and built upon 'Dukes' in two opinions handed down within a month of each other. The tension among the justices on this issue has led to a very narrowly carved path for plaintiffs to seek certification under Rule 23(b)(3), which threatens to curtail, if not completely foreclose, Rule 23(b)(3) class actions.

Differing Standards of Adequacy Complicate Patent Infringement Cases

Thomas Rohback and Aaron Feigenbaum of Axinn, Veltrop & Harkrider write: Given the Supreme Court's reasoning in two major decisions on pleading standards, it would appear that patent cases, which are, without a doubt, complex and remarkably expensive, would unquestionably be subject to the 'Twombly'/'Iqbal' threshold of plausibility based on allegations of fact. But that is not the law - or at least it is not the law as pronounced by the Federal Circuit.

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