What is A Sur-Reply? And When is Filing One Permitted?

Posted by Mike Laszlo on August 10, 2012

Our blogs have been following the Lance Armstrong v. USADA, et al. case which is currently proceeding in the United States District Court for the Western District of Texas.  While the case presents intricate issues of constitutional due process; private versus state action; and enforceability of arbitration clauses, we have been intrigued by the technical and procedural issues the case has presented.  We wrote about pleading deadlines when Armstrong's attorneys miscalculated the response date ... and we discussed brief page limits when Armstrong asked for more space to argue his case.  Yesterday, Armstrong filed  a Sur-Reply in Opposition to USADA's Motion to Dismiss. 

First, what is a "Sur-Reply?"  A sur-reply is a reply filed in response to the reply to a motion… motions go like this: Motion >Response> Reply.  Party A ("movant") files a Motion that asks the court to do something and argues its position – Party B ("non-movant") files a response which argues against the Motion – Party A then files a Reply which supports the Motion – but Party A is limited to those arguments and law raised in its original Motion.  After the reply is filed, the issue is “fully briefed.” 

However, when the reply brief raises new material that was not included in the original motion, courts may permit the non-movant to respond to the new material in a “sur-reply.”  No authorization exists in the Federal Rules of Civil Procedure (or the local rules of Western District of Texas) that permit a sur-reply and therefore, the party wishing to file a sur-reply must motion the court for leave to file a sur-reply.  USDC WD Texas Local Rule 7(e)-(f) deals with responses and replies. 7(f) states: “A party may file a reply in support of a motion. Absent leave of court, no further submissions on the motion are allowed.”  Further, a motion for leave is it own motion, separate and distinct from the underlying motion, and therefore, under most local rules (and USDC WD Texas Local Rule CV-7 (i)) requires a “meet and confer" prior to filing.

So, what did Lance Armstrong file?  He filed a sur-reply brief – he did not comply with Local Rule 7 and file a motion asking the court for leave to file the sur-reply itself (strike one) and he did not comply with Local Rule 7(i) and meet and confer with USADA (strike two).  Further, Armstrong did not argue that a sur-reply brief was necessary under the circumstances of the case. He did not show that USADA had presented new material in its reply brief that it had not included in the original Motion to Dismiss. (strike three).  Thus, the Court should find that Armstrong’s surreply brief is improper and should be stricken.

Why did Armstrong’s legal team yet again disregard the local rules?  It’s anyone’s guess … but headed into today’s hearing, it’s my guess that Armstrong’s legal team is clearly trying (desperately so) to get as much information in front of the Court as possible.  Most likely, Judge Sparks read the sur-reply headed into today’s hearing – even if he says otherwise and doesn’t allow the filing to stand.  The goal by Armstrong being just to get it all out and argue like mad today.   

The Boulder business lawyers at Laszlo & Associates, LLC provide legal counsel to businesses on a variety of business needs including products liability, risk management, corporate protection and legal compliance.  For more information on our Boulder criminal defense practice, visit our website at www.laszlolaw.com/civil.  Contact one of our Boulder attorneys if you are need of assistance.

District Court Rejects "Failure-To-Withdrawal" For Generic Drug Manufacturers

Posted by Jeff Klein on June 25, 2012

We discussed the First Circuit’s opinion in Bartlett v. Mutual Pharmaceutical in two previous posts (here and here). In a nutshell, in Bartlett, the First Circuit refused to find preemption under the Supreme Court’s opinion in Pliva v. Mensing for the plaintiff’s design defect claim against the generic drug manufacturer because the generic manufacturer could “…avoid defective warning lawsuits as well as design defect lawsuits by not making the drug...” in the first place.

Confronted with a similar issue, the District Court for the Eastern District of Kentucky in In Re Darvocet, Darvon, and Propoxyphene Products Liability Litigation MDL reviewed the Bartlett decision and found the First Circuit’s reasoning unconvincing…to say the least. In fact, the district court did not even really offer a review of Bartlett in its opinion at all--that's how unconvinced the Kentucky court found Bartlett.

The plaintiffs in the Darvocet MDL offered the recent Bartlett decision in response to a show cause order as to why claims against certain generic defendants should not be dismissed on Mensing preemption grounds. The district court quickly dismissed the Bartlett reasoning:

Having reviewed the Bartlett decision, the Court agrees with the Generic Defendants.  In Bartlett, the First Circuit adopted the “failure-to-withdraw” argument previously rejected by this Court and others…This argument—which failed to persuade either the Supreme Court or the Eighth Circuit on remand in Mensing, and the Sixth Circuit in Smith v. Wyeth, Inc.—is no more availing now. Moreover, the First Circuit offered little explanation for accepting it, noting simply that the Mensing opinion had not specifically addressed design-defect claims. 

Consequently, the Eastern District of Kentucky court dismissed the claims against the generic drug manufacturer defendants.

Although the district court made summary work of the Bartlett decision, the Eastern District of Kentucky's opinion raises similar points we raised in our second post.  Namely, the “failure-to-withdraw from the market” argument was already rejected by the Supreme Court in Mensing—such rejection was in fact even mentioned by the First Circuit in Bartlett.  Despite recognizing that the argument was already rejected in the context of a failure-to-warn claim, the First Circuit offered no explanation as to why the underlying rationale would not also lead to Mensing preemption for a design defect claim.

The Boulder Business Lawyers at Laszlo & Associates, LLC provide legal counsel for businesses on a variety of business needs, including products liability, risk management, corporate protection, and legal compliance.  

Supreme Court Wal-Mart Class Action Decision - Commonality is King

Posted by Mike Laszlo on June 21, 2011

The Supreme Court's recent decision in the Wal-Mart sex-descrimination suit demonstrates the importance of 'commonality' in class actions.  Not to mention that the decision is a good example of why MDLs, free from such 'roadblocks', are the new class actions.  Because MDLs are not regulated in the way class actions are, such a review for lack of commonality reasonably would never occur.

The plaintiffs' case against Wal-Mart was based on an alleged pattern of descrimination in the form of paying women workers less than thier male counterparts and providing them fewer opportunities.  In the end, the allegations were not enough to permit the three named plaintiffs to represent a class of 1.6 million.

Merely showing that Wal-Mart's policy of descrimination has produced an overall sex-based disparity does not suffice. - Justice Scalia. 

 

The "Sunshine In Litigation Act of 2011" May Shed Too Much Light Into The Discovery Process

Posted by Mike Laszlo on May 20, 2011

There has been a lot of rumbling over Senate Bill 623 aka the “Sunshine in Litigation Act of 2011” lately.  Perhaps for good reason.  S. 623 provides in part that:

In any civil action in which the pleadings state facts that are relevant to the protection of public health or safety, a court shall not enter, by stipulation or otherwise, an order otherwise authorized under rule 26(c) of the Federal Rules of Civil Procedure restricting the disclosure of information obtained through discovery, an order approving a settlement agreement that would restrict the disclosure of such information, or an order restricting access to court records unless in connection with such order the court has first made independent findings of fact that--

‘(A) such order would not restrict the disclosure of information which is relevant to the protection of public health or safety; or

‘(B)(i) the public interest in the disclosure of past, present, or potential health or safety hazards is outweighed by a specific and substantial interest in maintaining the confidentiality of the information or records in question; and

‘(ii) the requested order is no broader than necessary to protect the confidentiality interest asserted.

It is certainly understandable why attorneys on either side of the v. would react strongly to S. 623.  Defendants certainly want to protect and direct litigation through discovery strategy.  Such tactics are necessary and effective.  Plaintiffs clearly would benefit from a defendant's fear that a scorched earth discovery effort could uncover damaging documents and that, those facts, if made public, would be highly detrimental to the business. 

S. 623 may be vunerable to loose interpretation resulting in unintended consequnses that inflict considerable damage to parties unable to protect information.  Yet, a middle ground has to be found on this issue.  Bringing a lawsuit cannot be made to give a plaintiff carte blanche to discover and make public anything it wants.  Likewise, a defendant should not be able to hide every single piece of information from public view – especially where public safety may be at issue.  

Further permitting parties to litigate behind closed doors will only hurt our legal system by depriving it of insight, analysis and precedent.  When issues are so intertwined with "confidential facts" that cannot be publicly disclosed, any court order or opinion will necessarily be sealed and will therefore be hidden, likely into perpetuity.  This no doubt will lead to inconsistent rulings, interpretation of laws and results.  Such a reality is a bad result for everyone. 

Tougher Class Action Certification Equals More MDLs

Posted by Mike Laszlo on March 25, 2011

In the March 2011 edition of DRI's "For The Defense" Michael McCutcheon and Kyle Richard Olson detail and discuss plaintiffs' evidentiary burden of proof at the class certification stage.  The authors state that recent federal court rulings suggest that courts are "willing to engage in a full Daubert inquiry at the class certification stage to determine the admissibility of expert testimony under certain circumstances."  The article is a discussion on which standard of proof applies to Fed. R. Civ. P. 23's class certification requirements.  I believe the article is a good starting point to discuss the effects of rigorous class certification standards on the growing number of MDLs. 

The reality is that as class certification becomes more difficult for plaintiffs - aka "plaintiffs attorneys," the unregulated wild west of Multi-district Litigation becomes much more appealing.  There is no Rule 23 or other certification process in an MDL. 

The emerging burden of proof rule at the certification stage has generally favored defendants.  Plaintiffs’ attorneys hoping for class certification cannot throw bare pleadings against the wall and expect them to stick.

In MDLs, plaintiffs can throw bare pleadings against the wall ... it could be years before an MDL court hears dispositive motions.  The formation of an MDL simply depends on whether the Judicial Panel on Multidistrict Litigation (JPML) believes consolidation will aid in the administration of a given group of cases.  The determination, unlike a class action, is not merit based.  While MDLs can be beneficial to defendants, i.e., consolidating many similar actions around the nation into a single proceeding, MDLs, when formed early, can be an albatross for many years. 

The benefit of an MDL to plaintiffs’ attorneys is the unregulated and lucrative “common benefit fee.”  Common benefit fees are often in the tens of millions (the Toyota MDL fees were anticipated to be in the high hundreds of millions) and are split between a few select lawyers.  Often, the common benefit fund is funded in part directly by the defendant - not just a percentage of the recovery.  Furthermore, MDL judges have unfettered discretion to grant common benefit fees as they wish - often adding arbitrary "multipliers" to common benefit awards.  What this means is that MDLs can be far more attractive than class actions to plaintiffs' attorneys. 

While Messrs. McCutcheon’s and Olson’s analysis on Rule 23 class certification is insightful, it also provides an example of why MDLs are on the rise.  The reality is that class actions are less desirable and potentially less profitable as MDLs have come to be.  Therefore, it may be wise to take a cautioned approach to certification because as class actions become increasingly more difficult to certify, so does the unregulated MDL monster grow.