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Less is More

I’m back on the speaking circuit after a hiatus due to serving as the Program Chair for last summer’s FDCC Annual meeting.  And, that’s reminded me of a number of useful tips for preparing PowerPoint or Keynote presentations for use in those presentations.


1.         Less is More


You don’t need 25-50 slides.  Your audience is there to listen to you, not read your slides.  Slides illustrate.  Slides remind the audience (and you) where you are.  For a 30 minute presentation in November, we used seven slides, not counting the title slide – two were video clips.  For another program last month had four substantive slides for about 30 minutes allocated to two speakers.  At the Winter Meeting, the presentation I’m participating in currently has five “substantive” slides.


As Steve Jobs said:


“Simple can be harder than complex: You have to work hard to get your thinking clean to make it simple. But it’s worth it in the end because once you get there, you can move mountains.” 


2.         Case and Policy Quotes Belong in the Paper, not the Slides


There are few things as deadly as trying to read 12-16 point type on a slide projected on a screen 50 feet away from the viewer.  Don’t quote the policy or cases in your slides.  It’s acceptable to post case citations – that can help the audience write them down, but quotes should be left in the written materials. 


3.         Write it Yourself; Don’t Have Your Assistant or Paralegal Write It


Too many of us delegate presentation writing to our assistants, a paralegal, or our firm’s marketing department.  Do it yourself.  If you don’t know how, learn.  PowerPoint is not that difficult (and your staff can take care of the more technical aspects after you write it), and Apple’s Keynote is even easier.  The problem with presentations drafted by others is they are not your presentation. They tend to be mechanical summaries of the paper.  They do not flow with your speaking style as well as they should. 


4.         Avoid Gratuitous Graphics.


Google initially achieved fame because it used a plain white screen, not the overly busy screen used by Yahoo and other long-vanquished competitors (anyone remember Alta Vista?).  Just because something is there, does not mean you have to use it. 


Microsoft has infected PowerPoint with a dozens of clip art illustrations, dozens of stock photos and the like.  Don’t use them simply because they are there.  Use illustrations and graphics to make a point.


5.         Test, Test, Test.


Test your presentation.  Don’t just test it in your office.  Test it where you’ll be giving the presentation on the equipment you will use.  Do you have video or audio?  Did you know there is more than one way to embed video and audio in a PowerPoint?  Did you know one of those ways doesn’t work when you move the presentation to a different computer?  Do you know whether your video is set to start on the slide transition, or whether it requires a second click? 


You are giving a presentation to share your knowledge and improve your professional reputation.  “Technical difficulties” during your speech defeat both goals. 


6.         Follow the Wisdom of the Military.


Several years ago an Army General became famous for banning PowerPoint in briefings in his command.  As one Marine General said, “PowerPoint makes us stupid.”    If you wish to read more, consider these articles:


7.         Stay on Time.


Finally, one tip that isn’t directly computer presentation related.  If you are given a specified time for your presentation, nail that time.  Don’t go over.  Don’t go appreciably under.  Don’t stuff 45 minutes of material into a 30 minute presentation so you have to talk at 300 words per minute.  If you want to be invited back by conference organizers, stay on time.  

How do you stay on time?  Rehearse.  Time yourself.  Write your presentation so you can invisibly modify the depth of your discussion on the fly.  

U.S. District Court Examines Standing to Challenge Special Elections

Jackie Nichols v. City of Rehoboth Beach, Sam Cooper, and Sharon Lynninvolved a motion to dismiss a lawsuit filed by a city resident against the city alleging violations under the Fourteenth Amendment and under 42 U.S.C. §§ 1983 and 1988, arising from a special election to authorize the issuance of municipal bonds. The United States District Court for the District of Delaware concluded that the city resident lacked standing to bring the lawsuit because she did not suffer a concrete personal injury, and thus, that the Court lacked subject matter jurisdiction to hear the action. Accordingly, Judge Gregory M. Sleet granted the city’s motion to dismiss.

By way of factual background, Plaintiff Jackie Nichols ("Nichols")was a resident, property owner, and taxpayer of the City of Rehoboth Beach ("Rehoboth").On April 27, 2015, the Board of Commissioners of Rehoboth adopted a resolution proposing the issuance of up to $52,500,000 general obligation bonds of Rehoboth to finance an ocean outfall project (the "Ocean Outfall Project"), and ordering a Special Election to authorize the city to issue these and other objectives. On June 27, 2015, Rehoboth conducted the Special Election. The costs of the Special Election were paid from the Rehoboth treasury. Section 40(h) of the Rehoboth Charter, which governs voting procedures for Special Elections to authorize the borrowing of money, states:

At the said Special Election, every owner or leaseholder, as defined in this Charter, of property, whether an individual, partnership or corporation, shall have one vote and every person who is a bona fide resident of the City of Rehoboth Beach, but who is not an owner or leaseholder, as defined in this Charter, of property within the corporate limits of the City of Rehoboth Beach and who would be entitled at the time of holding of the said Special Election to register and vote in the Annual Municipal Election if such Annual Municipal Election were held on the day of the Special Election shall have one vote whether or not such person be registered to vote in the Annual Municipal Election.

Section 40 of the Rehoboth Charter does not define the phrase "bona fide resident." Section 7(d) of the Rehoboth Charter, relating to the manner of holding annual elections, requires that to be eligible to vote, the term "resident" means "an individual actually residing and domiciled in the City of Rehoboth Beach for a period of 6 months immediately preceding the date of the election." At the Special Election, Rehoboth only accepted as voters those who had been residents for a minimum of six (6) months and property owners. Rehoboth granted the right to vote more than once to those who met the residency requirement and owned (directly or through an entity) property in Rehoboth. Corporations and other artificial entities owning property in Rehoboth were permitted to vote. Individuals who owned multiple parcels in Rehoboth through ownership of multiple artificial entities were permitted to vote one (1) time for each property owned through such artificial entities. After the polls were closed, Rehoboth announced that there were 637 votes in favor of borrowing for the Ocean Outfall Project, and 606 votes against borrowing for the Ocean Outfall Project.

On July 16, 2015, Nichols filed a lawsuit against Defendants, Rehoboth, Rehoboth Mayor Sam Cooper, and Rehoboth City Manager Sharon Lynn (collectively, "Defendants"). In her complaint, Nichols alleged violations under the Fourteenth Amendment of the United States Constitution and under 42 U.S.C. §§ 1983 and 1988. The complaint contained four (4) counts: (1) declaratory relief for the Fourteenth Amendment Residency Requirement, (2) injunctive relief for the Fourteenth Amendment Residency Requirement, (3) declaratory and injunctive relief for the Fourteenth Amendment One Person, One Vote claim, and (4) Delaware State Law-Exceeding Authority. Defendants filed a motion to dismiss and opening brief on August 26, 2015. Nichols filed an answering brief in opposition on September 9, 2015. Defendants filed a reply brief on September 21, 2015.

The Court began its analysis by explaining that Federal Rule of Civil Procedure 12(b)(1) provides that a party may bring a motion to dismiss for lack of subject matter jurisdiction, and that a motion to dismiss for lack of standing is also properly brought pursuant to Federal Rule 12(b)(l) “because standing is a jurisdictional matter.” See St. Thomas-St. John Hotel & Tourism Ass'n v. Gov't of the V.I., 218 F.3d 232, 240 (3d Cir. 2000) ("The issue of standing is jurisdictional."); Kauffman v. Dreyfus Fund, Inc., 434 F.2d 727, 733 (3d Cir. 1970) ("We must not confuse requirements necessary to state a cause of action... with the prerequisites of standing.").

The Court further explained that a party invoking federal jurisdiction “bears the burden of establishing that she possesses the requisite standing to bring an action.” See FOCUS v. Allegheny Cnty. Ct. Com. Pl., 75 F.3d 834, 838 (3d Cir. 1996) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). The Court noted that in examining a challenge to a party's standing, “the court must accept as true all material allegations set forth in the complaint and construe those facts in favor of the nonmoving party,” and that at the motion to dismiss stage, "general factual allegations of injury resulting from the defendant's conduct may suffice." See Warth v. Seldin, 422 U.S. 490, 501 (1975); Storino v. Borough of Point Pleasant Beach, 322 F.3d 293, 296 (3d Cir. 2003); Ballentine v. U.S., 486 F.3d 806, 810 (3d Cir. 2007).

In their motion to dismiss, the Defendants made the following arguments: (1) the challenge to the City's Special Referenda Election was too late, (2) Nichols failed to make any claims whatsoever against Defendants Cooper and Lynn, (3) the State of Delaware was the real party in interest, (4) Nichols lacked standing, (5) Rehoboth did not exceed its authority in paying for an advertisement in support of the Special Referenda Election, and (6) the Court should abstain and stay the case.

The Court first addressed the Defendants’ argument that Nichols lacked standing, as that challenge went to the Court’s jurisdiction. Regarding the standing issue, Defendants argued that Nichols lacked standing to challenge the six (6)-month residency requirement in the charter because she suffered no injury. Specifically, they argued that she was never denied the opportunity to vote in the Special Referenda Election. Nichols responded that she possessed taxpayer standing. She claimed that she was suing in her capacity as a municipal taxpayer to challenge taxpayer-funded elections, the resultant authorization of the issuance of municipal debt instruments, and the expenditure of tax revenues to buy advertisements to influence a bond referendum.

The Court explained that in order to satisfy the standing requirements of Article III, a plaintiff must show: "(1) it has suffered an 'injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." See Friends of the Earth, Inc. v. Laidlaw Environmental Servs., Inc., 528 U.S. 167, 180-81 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).

The Court further explained that in a “voting case,” voters need to show a disadvantage to themselves as individuals, which requires "a plain, direct and adequate interest in maintaining the effectiveness of their votes.” See Baker v. Carr, 369 U.S. 186, 206 (1962); Coleman v. Miller, 307 U.S. 433, 438 (1939). The Court noted that a claim of the right possessed by every citizen "to require that the government be administered according to law" does not suffice for purposes of standing. See Fairchild v. Hughes, 258 U.S. 126, 129 (1922). See also Lance v. Coffman, 549 U.S. 43 7, 442 (2007) (Finding that plaintiffs lacked standing where the only injury alleged was that the law had not been followed in the election and not a particularized impact on the plaintiffs' votes).

Upon review of the facts of the case, the Court agreed with Defendants that Nichols lacked standing. First, the Court noted that it agreed with Defendants that Nichols was not contesting the expenditure of tax funds, but the legality of the Special Election. Second, the Court noted that Nichols suffered no particularized injury as a result of the Special Election. The Court explained that Nichols was a property owner in the city who had the right to vote in the Special Referenda Election, and thus, she lacked the concrete personal injury necessary to bring suit. As a result, the Court concluded that it lacked subject matter jurisdiction to hear the action, and thus, granted Defendants' motion to dismiss without considering Defendants’ remaining arguments.

Jackie Nichols v. City of Rehoboth Beach, Sam Cooper, and Sharon Lynn, No. 15-062-GMS (United States District Court for the District of Delaware, December 14, 2015), available at:

Submitted By: Marisa A. Trasatti and Richard J. Medoff, Semmes, Bowen & Semmes


New Years Resolution - Your Reputation Matters

I don’t make New Year’s Resolutions in the traditional sense.  I simply won’t live up to them.  However, the advent of a new year provides an opportunity to look at opportunities you may not have taken advantage of in the past.


Do you have more work than you and your colleagues can do?  I doubt it. 


So, how do you get more work?  It’s very simple.  Be the person the client is thinking of when something happens that causes them to decide they need to hire counsel.  And, be the person that the client can justify choosing when discussing the retention with management.


There are lots of ways to reach that goal.  First and foremost is good lawyering.  The rest of this post, however, is going to focus on improving your professional reputation with clients, opponents and the courts:

  • Do they know who you are?
  • Is your word good?
  • Do you fight tenaciously but fairly?
  • Are you sensitive to their needs and interests?
  • Have you developed a verifiable expertise?


Most of us tell our witnesses to always assume that they are being observed by jurors or prospective jurors when they are within walking distance of the courthouse.  The same rule applies to us – we must assume we are being observed by clients, other attorneys, including opposing counsel, and judges in everything we do as lawyers.  It only takes one bad experience, or one misunderstanding, to turn a client, another lawyer or a judge against you. 


A now retired judge in one of the jurisdictions in which I practice was notorious for deciding cases based upon initial impressions of the lawyers and parties.  The side where the lawyer, or sometimes, the client, was perceived as a (ahem) “jerk” was very likely to lose.  While I doubt the judge’s mental formulation was “Who’s the _______?” it certainly appeared that way. 


Lawyers engage in reputation-harming conduct both consciously and unconsciously.  The conscious is easy to avoid – no matter what the temptation, don’t lie, don’t cover things up, don’t disregard instructions and don’t practice in areas for which you are unqualified without educating yourself first (at your expense, not the client’s). 


Avoiding unconscious reputation-harming conduct requires more effort, but it’s readily achievable.  First, don’t make a representation you can’t support and abide by.  “I don’t know” or “I’m not certain and need to make some inquiries” are better responses than optimistic guesses.  Better yet, anticipate the questions, make the inquires and be prepared for questions.


Second, avoid cuteness and dirty tricks.  If it sounds too clever, it probably is. 


Third, do you understand what your client really needs?  What does “victory” look like from the client’s perspective?  Does your client need regular reporting even if nothing is happening?  What are the consequences of exceeding a budget?  Do they need to be alerted to possibilities before there is bad news?  Are there bigger picture business considerations for the client that can be affected by how a matter is handled, such that how the matter is handled is more important than its ultimate outcome? 


Finally, verifiable expertise.  Do you belong to organizations, whether the FDCC or others, which have admissions standards that serve as a form of verification?  Do you write or speak on the topic, such that other lawyers or clients may cite or forward your publications or presentations?  Have you sought specialty certification from your state bar, if it is available?  Do other lawyers turn to you for advice?  If your answer to each of these questions is “no,” you can’t build that expertise overnight, but you can start this year.  The lowest barrier to entry is to write something.  Legal publications, whether from your local bar association or national legal and professional organizations are always in need of written content.  Remember a submission may be rejected, not because it is poorly written, but because it doesn’t fit the needs of the particular publication to which it was submitted.  Try someplace else.  If all else fails, do what I’m doing now – turn your publication into a series of short blog posts and submit it, either on the FDCC blog, if you’re a member, on your firm’s blog, if it has one, or on another blog that accepts outside submissions; many do. 


Take the first step towards building your reputation.  It’s the best professional New Year’s Resolution you can make.  

Federal Law Requiring Preclearance to Market Medical Devices Does Not Preempt State Tort Law

In a recent decision, the United States District Court for the Southern District of West Virginia held that federal law requiring that medical device manufacturers obtain preclearance to market their products did not preempt state tort law related to design defects.

Plaintiffs sued Defendants related to Defendants’ design, manufacturing, and distribution of Tension-free Vaginal Tape (“TVT”), “a mesh product [intended] to treat stress urinary incontinence.”  After experiencing complications from the product, Plaintiffs (along with approximately 23,000 other similarly situated individuals) sued Defendants, asserting, inter alia, claims for strict liability design defect and negligent design. 

Defendants moved for summary judgment on the grounds of federal preemption.  Defendants noted that, in PLIVA, Inc. v. Mensing, 131 S. Ct. 2567, 2580-81 (2011), the Supreme Court held that “when a party cannot satisfy its state duties without the Federal Government’s special permission and assistance, which is dependent on the exercise of judgment by a federal agency, that party cannot independently satisfy those state duties for pre-emption purposes,” and thus the state duties were preempted by federal law.  Applying that holding, in Mutual Pharm. Co. v. Bartlett, 133 S. Ct. 2466, 2476 (2013), the Supreme Court held that federal law preempted a state duty affecting generic prescription labels because generic drug manufacturers could not change their labels without permission from the FDA.  Analogizing to these cases, Defendants noted that section 510(k) of the Food, Drug, and Cosmetic Act, codified at 21 U.S.C. § 360(k), required them to obtain clearance from the Food and Drug Administration (FDA) prior to distributing TVTs in interstate commerce.  Thus, if Plaintiffs were successful in establishing that TVTs were defectively designed, West Virginia would essentially be imposing a duty on Defendants to adjust the design of TVTs, which they could not do without obtaining preclearance from the FDA if they wished to continue to market TVTs.  Because they could not unilaterally adjust the design of TVTs, Defendants argued it was impossible for them to comply with both federal law and the state duty.

Judge Joseph R. Goodwin disagreed, stating that he did not believe that Defendants’ argument sufficed to show that the state law posed some impediment to Defendants’ ability to comply with federal law.  First, the Court noted that there is a strong presumption against preemption, especially where the preemption of a state’s police powers, such as a state’s imposition of a tort duty, is at issue.  Absent the clear intent of Congress to preempt such powers, Defendants’ argument would fail.  The Court, therefore, looked to Medtronic v. Lohr, 518 U.S. 470 (1996), a case in which the Supreme Court held that Congress did not intend the 510(k) preclearance procedures to preempt state tort law relating to design defects.  According to the Supreme Court, such procedures were intended simply to ascertain whether a substantially similar product was already in existence on the health market in order to prevent products from gaining an unfair foothold on the market while other products cleared separate regulatory hurdles.  The Supreme Court therefore held that, in light of this limited purpose, the 510(k) procedures preserved the status quo with respect to the possibility that a medical device manufacturer would have to defend itself in a design defect lawsuit.  In view of this precedent, the Court was compelled to conclude that the 510(k) procedures did not preempt state tort law.

The Court rejected Defendants’ attempts to shift the Court’s attention from Lohr.   Defendants contended that, because the FDA could reject their altered design, just like the defendants in Mensing and Bartlett, it could not comply with a state tort duty and the FDA’s approval procedures.  The Court, however, noted that it was a firm impossibility for the state duties at issue in Mensing and Bartlett to be reconciled with federal regulation.  In those cases, the Supreme Court found that it was entirely impossible for generic drug manufacturers to comply with a state duty to adjust the warning labels on their products when federal law required them to maintain warning labels identical to those on the brand name drugs.  By contrast, here, Defendants could both make a reasonably safe product and obtain clearance from the FDA to place it on the market.  As a result, the Court concluded that federal law did not preempt the state tort duty.

United States District Court for the Southern District of West Virginia

Terreski Mullins, et al. v. Ethicon, Inc., et al. (December 4, 2015)

Submitted By: Marisa A. Trasatti and Matthew J. McCloskey, Semmes, Bowen & Semmes

Allegations of Gender Discrimination Were Undermined

Plaintiff’s Allegations of Gender Discrimination Were Undermined by Defendant’s Efforts to Improve Her Work Performance.
In a recent opinion, the United States District Court for the Northern District of West Virginia held that the plaintiff did not adduce evidence sufficient to establish her various claims relating to workplace discrimination and retaliatory discharge.  Plaintiff was hired by Defendant as a warehouse manager in 2009.  In 2011, her supervisors became concerned by certain aspects of her job performance, including improper maintenance of the warehouse, untimely responses to inquiries by employees and clients, and inaccurate inventory packing for customer deliveries.  As a result, her supervisors implemented a Performance Improvement Plan, and counseled her approximately twenty (20) times over the next thirteen (13) months regarding her performance.  When her performance did not improve by February 2013, Defendant fired Plaintiff.

Plaintiff brought suit against Defendant alleging: gender discrimination, retaliatory discharge, and hostile work environment.  She alleged that Defendant asked her to engage in questionable conduct with which she expressed disagreement, including refraining from listing employees with Driving Under the Influence (“DUI”) charges and not filing an incident report for a broken light bulb.  She also alleged that her supervisor yelled at her, referred to her as “sweetheart,” and assigned her secretarial tasks.  Furthermore, Plaintiff alleged that, one week before her termination, she contacted Defendant’s human resources manager and expressed that she felt harassed and disagreed with her supervisors’ assessments of her work performance.  The human resources manager informed her that she could file a complaint and that an investigation could be conducted, but Plaintiff never filed a formal complaint.

After discovery, Defendant moved for summary judgment, arguing that Plaintiff did not establish a prima facie case of gender discrimination, and even if she did, that Plaintiff was fired for a legitimate, nondiscriminatory reason, namely her deficient work performance.  Moreover, Defendant argued that Plaintiff’s retaliatory discharge claim was baseless because Plaintiff was fired over a year after she engaged in a protected activity, and that there was no proof of a hostile work environment. 

The District Court granted Defendant’s motion.  The Court concluded that Plaintiff did not establish a prima facie case of gender discrimination, as the record reflected that Defendant had approximately twenty (20) discussions with Plaintiff regarding her deficient performance in the thirteen (13) months preceding her discharge.  The Court stated: “It would be quite unusual for an employer engaging in discriminatory conduct to pursue such corrective and positive endeavors for the benefit of the plaintiff.”  Furthermore, even if Plaintiff had established a prima facie case, the record contained ample uncontradicted evidence demonstrating that Defendant had fired Plaintiff for the legitimate, nondiscriminatory reason that her work performance was deficient.  In so concluding, the Court noted that evidence that Plaintiff presented indicating that her coworkers thought she had done a good job was irrelevant, as it was only the perception of the decisionmaker, i.e., Plaintiff’s supervisors, which mattered in determining whether the employee’s work performance was adequate.

With respect to Plaintiff’s retaliatory discharge claim, the Court concluded that Plaintiff’s expressions of disagreement with Defendant regarding listing an employee with a DUI charge and not filing an incident report regarding a broken light bulb did not constitute protected activities sufficient to establish a claim for retaliatory discharge.  Even if they did, the expressions occurred over a year before Plaintiff was fired and were inconsequential in nature, which undermined any inference that her eventual discharge was related to the incidents.  Regarding Plaintiff’s conversation with the human resources manager, the Court concluded that merely talking with the manager did not constitute a protected activity where Plaintiff’s supervisors were unaware that the conversation had occurred at the time they fired Plaintiff.  Had Plaintiff actually filed a complaint for harassment, however, she may have been able to establish a prima facie case in this regard.

Finally, regarding Plaintiff’s claim that Defendant created a hostile work environment, the Court determined that Plaintiff’s allegations were “questionable at best” and unsupported by the evidence adduced in discovery.  Plaintiff’s coworkers never observed any instance of harassment as alleged by Plaintiff; and the work that Plaintiff was asked to do was no more “secretarial” than the work other managers did.  Moreover, Plaintiff’s discussion with the human resources manager involved feeling harassed as a result of her work performance, not her gender.  This crucial distinction undermined Plaintiff’s claim that Defendant fostered a work environment hostile to her because of her gender.  As a result, the Court granted Defendant’s motion for summary judgment as to all of Plaintiff’s claims.

Cacie Biddle v. Fairmont Supply Company (September 24, 2015)

United States District Court for the Northern District of West Virginia

Submitted By Marisa A. Trasatti and Matthew J. McCloskey, Semmes, Bowen & Semmes

Unusual Amicus Brief to the Volkswagen Emissions Scandal

Submitted by John W. Sinnott, Irwin Fritchie Urquhart & Moore LLC, New Orleans, Louisiana (@JohnWSinnott)

Litigation over the Volkswagen emissions scandal is still in its infancy. Well over 100 class actions have been filed, and multiple plaintiffs have filed motions with the Judicial Panel on Multidistrict Litigation seeking transfer to a single federal court. The panel will hear argument on those motions in December.

Settlement is inevitable at some point years down the road, but it's way too early to be talking about that now, right? Not if you're Ted Frank (@tedfrank), founder of the Center for Class Action Fairness (@ccaf). The CCAF "stands for the principles that settlement fairness requires that the primary beneficiary of a class-action settlement should be the class, rather than the attorneys or third parties; and that courts scrutinizing settlements should value them based on what the class actually receives, rather than on illusory measures of relief."

On October 20, 2015, the CCAF took the unusual step of filing an amicus brief with the JPML, arguing that the panel, in order to promote a just and efficient outcome, should transfer the Volkswagen "clean diesel" litigation to Judge Alsup in the Northern District of California due to his exceptional record in scrutinizing class action settlements. 28 U.S.C. § 1407 requires the Panel to consider whether transfer will "promote a just and efficient outcome." The brief points to the "feeding frenzy" of me-too filings by plaintiff attorneys eager to be appointed class counsel in a litigation "where the class is large (over 500,000 owners and lessees of affected vehicles); potential damages are in the billions or hundreds of millions; the defendant has already admitted some wrongdoing; and plaintiffs will be able to piggyback off of government investigations of Volkswagen's conduct."

CCAF asserts that settlement is the one critical area where plaintiffs' counsel and defendants have a "common but perverse interest" – "neither wishes the transferee court to closely scrutinize the class action settlements that will inevitably be reached." The problem, according to CCAF, is that plaintiffs' counsel and defendants do not want a transferee judge who will closely scrutinize a class action settlement, as doing so "will benefit absent class members at the expense of class counsel's fees and the defendants' attempt to minimize litigation expense." Judge Alsup in the Northern District of California has a unique track record of concern for absent class members and has already issued a pretrial order in a Volkswagen case pending before him that addresses the need for a class action settlement to avoid self-serving provisions that benefit class counsel at the expense of the class. On that basis, CCAT's amicus brief urges transfer to Judge Alsup.

CCAF's amicus brief is available at

In re Volkswagen "Clean Diesel" Marketing, Sales Practices, and Products Liability Litigation, MDL No. 2672.

Sleep on It

We’ve all dealt with opponents, and occasionally clients, who suffer from Keyboard Jerk Syndrome.  While they are often charming, personable and reasonable in face to face interaction, put them behind a keyboard and they lose that charm, that reasonableness and become difficult, confrontational and accusatory. 


It’s easy and quite emotionally satisfying to reply in kind, sending the e-mail equivalent of the universal road rage hand gesture.  It’s also a really bad idea.  E-mail encourages immediate responses.  It also is more casual and conversational in tone.  But, like the letters our predecessors sent, it lives a long time. 


So, how do you deal with Keyboard Jerk Syndrome without succumbing to it yourself? 


1.         It the message you received makes you mad, don’t write when you’re mad.  Wait.  My rule of thumb is to wait until the next day.  There is no rule of court, statute, or other requirement that everything be responded to immediately.  Take your time, because what you are drafting could well end up as an Exhibit to a motion, or even a trial exhibit. 


2.         If you have an emotional need to draft the “Jane, you ignorant slut” ( response leave the address and cc fields blank.  That way you won’t send it by accident.  Once you’ve vented, delete it.  Or, at a minimum leave it for the next day – you’ll be more calm and it won’t look very good. 


3.         Ask yourself, “Do I want a judge or jury to read this e-mail?” 


Stay calm.  It pays huge dividends.  

Insert Your Name Here and Share Your Expertise

Any Federation Member can contribute to this blog.  It’s easy and it’s a wonderful opportunity to increase your visibility. 

Studies indicate that professional visibility is a critical component of marketing and that writing is an excellent way to increase professional visibility.  No travel is necessary.  It can be done in your “spare” time, and it exposes you to people you’ve never met.

“But I have nothing to say.”  Hogwash.  How much time do you spend training and mentoring the less experienced lawyers in your firm?  Take one or two topics you discuss with those lawyers and turn them into a blog post.  Is there a recent case or procedural development in your state or practice area?  There are more subjects for discussion than any of us have time to write about.

“But, I’m not a tech person.”  Neither am I.  I’m a 57 year old lawyer with eye-rolling teenaged children.   Write something.  Then log into the website on the member side and select “Member Services” at the right end of the menu bar.  A row of tabs will appear.  The fifth one from the left (today) is “Submit a Blog Entry”  Give it a title.  Tell us whether it is Practice Tips (like this) or Substantive Law.  Paste the content into the big content window. Press the add entry button.  You’re done.  The FDCC staff will review it for appropriateness, and will then put it in a queue to be posted.  


On September 24, the Nevada Supreme Court adopted the “Cumis” independent counsel doctrine first adopted in California over 30 years ago.  In State Farm Mut. Auto. Ins. Co. v. Hansen, 131 Nev. Adv. Op. 74 (9/24/2015) the court held policyholders are entitled to independent defense counsel, at the insurer’s expense when the insurer’s reservation of rights creates an actual conflict of interest for defense counsel.  The court also agreed with California that not every reservation of rights creates a conflict of interest requiring independent counsel, thus requiring case by case analysis rather than adopting a per se conflict of interest rule. 

Nevada is a tripartite relationship state, where insurer-appointed defense counsel has two clients, the policyholder defendant and the liability insurer.  Under Nevada law, the appointed defense attorney represents both the policyholder and the insurer.  Nevada Yellow Cab Corp. v. Eighth Judicial Dist. Ct., 123 Nev. 44, 152 P.3d 737 (2007).  That dual representation was the key factor in the Nevada Supreme Court’s decision.  The court held “Because Nevada is a dual-representation state, counsel may not represent both the insurer and the insured when their interests conflict and no special exception applies.” 

The Nevada court then proceeded to examine what would a create a conflict of interest entitling the policyholder to independent defense counsel.  It concluded the insurer’s issuance of a reservation of rights did not per se create a conflict requiring independent counsel.  Instead, it held a case by case analysis was necessary because the purpose of the rule is to enforce attorney conflict of interest rules.  It thus tied the entitlement to independent counsel to whether defense counsel has an actual conflict of interest under Nevada’s Rule of Professional Conduct 1.7.  It explained “This means that there is no conflict of interest if the reservation of rights is based on coverage issues that are only extrinsic or ancillary to the issues actually litigated in the underlying action.” 

By declining to adopt a bright line rule regarding when a conflict necessitating independent counsel exists, and by using the Rules of Professional Conduct for attorneys as the standard, the Nevada Supreme Court has established a standard that may lead to more litigation and additional disputes.    In addition, because the rule is a common law one, much as Cumis was before it was modified and clarified by statute, there is no standard for what reasonable fees are for independent defense counsel, which is likely also to create more litigation.  

Courts May Review EEOC

Courts May Review Whether the EEOC Has Met Statutory Obligation to Conciliate Discrimination Claims. In Mach Mining, LLC v. EEOCNo. 13–1019 (Supreme Court of the United States, April 29, 2015), the Supreme Court held that the Equal Employment Opportunity Commission’s (“EEOC”) conciliation efforts may be judicially reviewed.

The employer (“Mach Mining”) was accused of sex-based discrimination in violation of Title VII of the Civil Rights Act of 1964. A female job applicant filed a complaint with the EEOC. After the EEOC found there was reasonable cause to believe the employer had discriminated against the applicant, they issued a letter inviting the parties to engage in informal conciliation and notified them that a representative of the EEOC would contact them to begin this process. The EEOC has a statutory requirement to conciliate and try to settle cases before initiating a lawsuit under Title VII. The employer claimed it did not hear back until the EEOC determined that conciliation efforts had failed. After a lawsuit was filed, the employer claimed the EEOC failed to make a good faith effort to engage in “informal methods of conference, conciliation, and persuasion,” as required by Title VII.

The question before the Supreme Court was whether the EEOC’s efforts to conciliate or settle discrimination claims under Title VII of the Civil Rights Act of 1964 were subject to judicial review. The district court found that the EEOC’s efforts were subject to judicial review. The Seventh Circuit reversed and found that the efforts were not subject to judicial review. The Supreme Court, in its 9-0 opinion, agreed with the district court and found that the EEOC’s efforts were subject to judicial review, and remanded the case for further proceedings. Thus, the Supreme Court has granted employers a way, albeit a limited way, of challenging and fighting suits filed by the EEOC.

The Supreme Court held that the scope of judicial review is narrow due to the “expansive discretion” given to the EEOC under Title VII. Moreover, because the statute does not expressly state that the agency has the power to police itself, there is a strong presumption in favor of judicial review. Ultimately, the review is to be “relatively barebones . . . enforcing only the EEOC’s statutory obligation to give the employer notice and an opportunity to achieve voluntary compliance.” Moreover, a sworn affidavit from the EEOC indicating that the agency has notified the employer of the specific allegation and allowed the employer the opportunity to remedy the alleged discriminatory practice, suffice to fulfill the EEOC’s obligations under Title VII. If an employer provides evidence that the EEOC either: (1) did not provide the requisite information about the charge; or (2) did not attempt to engage in a discussion about conciliating the claim, then the court may engage in judicial review. In the case where the EEOC does not meet these criteria, the relief would be to stay the proceeding while the agency meets its obligation to conciliate. Thus, the relief to employers is limited.

Mach Mining, LLC v. EEOC No. 13–1019 (Supreme Court of the United States, April 29, 2015)

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Submitted by Marisa A. Trasatti and Nida Kanwal, Semmes, Bowen & Semmes

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