4.19.11 Complex Litigation

Three Primary Areas of Difference
1. More cooperation between parties (joint submissions, etc.)
-Form Groups
Lead Counsel will form policy and direction
Liaison counsel will communicate between attorneys and court
Trial counsel will try the case
Committees/steering committees will determine details of depositions, etc.
2. Less reliance on formal discovery
3. More active judicial activism- judge participation

-Courts establish schedule- deadline for all pleadings
-12b challenges not generally allowed
-Strict limitations on length of pleadings
-Motions for summary judgment popular, but not generally granted
-"Pivotal" test, no exploratory discovery, must be pithy
-Depository- common holding of documents
-Conference depositions- multiple people deposed at once
-Court may limit who can attend depositions and who can ask questions (to limit time)
-Geographical Haphazard Scheduling of Depositions-
-Multi-Track Depositions- simultaneous depositions in different locations
-Interrogatories- nearly unlimited as long as pivotal. Encourage "master" Rogs.
-Informal exchange of information encouraged- without use of rogs

Trial
-Long- can be difficult to find jurors that can sit throughout- Judge will "Time Qualify"
-6 days a week not uncommon
-Exhibits- all identified automatically moved into evidence
-Objections entertained only after hours to separate magistrate
-Juror notes- allowed due to length of trial, but do not leave courtroom

Most Common Types of Complex Litigation:

Class Actions-Rule 23 - Lots of small claims brought together
4 Hallmarks- must meet them all
1. Numerosity- sufficient number of people "so many as to cause impracticality of joinder under CR 19". In CA you are in unless you opt out. If possible the court would prefer to hear from each party (due process). Minimum contacts do not apply.
2. Common Question of Law or Fact- among claims
3. Class Representative- with claim Typical of Class
4. Class Representative- Fair and Adequate Representation of class
-Court must approve settlement
-Must make reasonable effort to inform all parties- TV ads

Multiple Litigation- many people suing for the same harm, but couldn't pass class action test
-One judge handles all suits
-Or all claims transferred to same jurisdiction

Criminal - NOT complex, but may become so if you have unusual publicity or unusual facts
(serial killers, organized crime- electronic surveillance admissibility, multiple victims, multiple jurisdictions)
-Bifurcation- Judges have power to severe parts and/or parties
-Sequestration of Jury- to avoid outside influence
-Jury Anonymity- for safety

Antitrust- Illegal Business Practice
-Having a monopoly is not illegal and never has been. Intent to monopolize is illegal.
-Sherman Act
-Counter Claim to patents
-Must show impact on interstate commerce
-Must show harm to self and to business in general
-Immunities and Exemptions- Organized Labor, Professional Baseball, Insurance, Rail Roads.
-Market Share definitions- once you control 70%

Mass Torts
-Mass disaster- happens at one time, but set number of plaintiffs
-Product Liability- Asbestos, breast implants- happen over time
-Often results in Bankruptcy
-Limited Funds Declared- to address future claims
-Scientific Evidence - critical
-May try issue by issue, etc.

Securities
-Interest in the work of another- Stocks, bonds, etc.
-Personal- misled as to value of stock, etc.
-SEC (Federal) can bring
-State Blue Sky Laws- "people would sell a piece of the sky if they could"
-As part of fraud, must be plead with specificity
-Complex definitions
-Damages vary widely- different stock purchase price, different remedies requested

Employment Discrimination
-Few fall into Complex Lit.
-Pattern or Practice-
-Damages- back pay, pain and suffering, lost wages. Usually split damages to separate hearings.

Patents- Title 35 (50 total) Complex in the traditional sense.
-Protect things, tangible things, for 20 years. (Shorter time span encourages innovation)
-Copyrights- protects creative endeavors- plays, etc. for life of author and 50 years after.
-Trademarks- logos, etc. for 10 years, but renewable in 10 year increments forever.
-Special Bar exam for Patent law
-Usually Bench Trials- no jury
-13th Circuit Court or Federal Supreme Court

CERCLA- Comprehensive Environmental Response Compensation & Liability Act (42 USC 9601 et. seq 1980)
-Created in effort to clean up toxic dumps
-Individual, EPA, state or local gov't, can all be plaintiffs.
-Personal Injury- not necessarily present
-PRP Potentially Responsible Party-Past (no time limit)/Current Owner/Operator/Arranged for disposal/Generatory/Transporters
-Strict Liability- must prove that co-defendant was the sole-cause/Or that discharge was an act of god
-If what you did was legal at the time that you did it- No excuse
-Problems- Generations and multiple levels of insurance, cross claims, counter claims- $ went to sorting out claims instead of cleaning sites.

RICO Racketeer Influenced & Corrupt Organization Act (18 USC 1961 et seq 1970)
-Designed to target organized crime business fronts- used to launder money, etc.
-If caught, could encounter triple damages
-Became an addition to every business claim- and a joke to judges
-Complex definitions
-Must show pattern of violations

4.14.11 Business Law

Westlaw- Review finding a case
Find & Print- by party name- Rippe v. Doran- Citation history
Cannot cite to unpublished cases in WA court

Genuine Consent
A court also may refuse to enforce a contract if the agreement was not genuine- not made with a true understanding of the facts or not voluntary.
-Fraud/Misrepresentation- intentional/material fact/intent to deceive/justifiable reliance
-Innocent Misrepresentation (voidable)- material fact/exclusive knowledge of person making rep./not reasonably available to party deceived
-Mistake- Mutual- both parties make mistake of material fact. Sherwood v. Walker- Rosie the Cow Allows for rescind of contract
& Unilateral- contract stands
-Undue Influence- confidential or fiduciary duty to other party. Position of trust abused-Voidable
-Duress- Involuntary, coercion.

Contracts
-Statute of Frauds RCW 19.36.010
Required to be in writing to be enforceable
-Land
-Executor
-Payment of debt of another
-cannot performed within one year
-made in consideration of marriage
-goods worth more than $500
Must be signed and state parties and terms.

Statutory Construction

Parol Evidence Rule
Once the contract is written, parol or extrinsic evidence to contradict, vary or add to its terms.
Unless:
-the court determines the written agreement is incomplete or ambiguous
-The contract was modified or,
-the evidence is used to prove a defense
Court will only consider evidence outside the four corners of the document if there is ambiguity.
Plain Meaning vs. Context view

Negotiations
Know
-Business goals
-How contract can further goals
-Risks, what could go wrong?
-Issues raised by terms
-Balance of Control
-Remedies?

Meeting with the other party
-not litigation, adversarial
-work to achieve an agreement acceptable and clear to all parties

Drafting
-USE language that works. Plagiarism is encouraged.
-Use plain english.
-Be precise

Contract Parts
-Preamble- ID contract
-Recitals- Background
-Words of Agreement- Accordingly, the parties agree.
-Definition of important terms- for any complex concepts
-Endgame Provisions- what happens if there is a default? Give 30days written notice, etc.
-General Provisions- dictate what law governs.
-Signature Lines
-Substantive Provisions- See handout (given out in class and available on website)

Representations
-Statement of Fact
-Moment in time
-Intended to induce reliance

Warranty- promise that a certain fact exists
-the maker of the statement will pay damages if the statement is false and the recipient is injured as a result.

Innocent Misrepresentation
-Remedy- avoidance and restitution

Breach of Warranty
-No req. to show intent
-No req. reliance
-Remedy is damages- benefit of the bargain

Covenants
-Promise to perform
-Creates duty/obligation to perform

Right
-The flip side of covenant

Conditions
-Set of facts that must exist before a party is obligated to perform
Walk away- Absolute
Ongoing-

What is the law?
Contract itself creates a private law.

Enemies of Contract
-Ambiguity
-Use of unnecessary words
-Vagueness
-Inconsistencies

FOR NEXT WEEK:
Draft non-compete clause based on handout.
No page requirement. 1-2 pages suggested.