Yes Shorter is Better (at least in legal briefing)

OK, you know who you are.  The serial page extension requesters.  But Judge, we have to have 100 pages to explain it. I know, I know, we’ve all done it.  And yes I agree sometimes it’s necessary.  But District Judge Joy Flowers Conti has a very good reason to resist the temptation of going page limit crazy.  What’s that?  Well, as she has observed:

Counsel and the parties should be aware of the court’s experience that shorter briefs are almost always more persuasive because they get to the point faster. They also contain less extraneous material that dilutes the parties’ main arguments, and frequently interferes with prompt resolution.

So there you have it.  As Blaise Pascal ( a brilliant writer skilled at humor, mockery, and vicious satire) said, “I made this letter longer than usual because I lack the time to make it short.”  Can’t say it better (or should I say shorter) than that.  Bet you can’t either.

You can read the order here

Nugget (I know you’ve missed it): Counsel should be aware that the court discourages reply briefs as usually repetitive and therefore wasteful. Reply briefs therefore should promptly state the novel matter contained in the opposition brief that merits a reply, and not merely assert that opposing counsel has misstated the law.

No Mondays Puh-leeze

Attorneys who voluntarily set Monday deadlines are just simply no fun. I mean, you get to pick the days, so why kill a future weekend? You know all the work gets done at the last minute, so nix those Mondays the next time your curmudgeon opposing counsel tries to get you to agree to one.Well, we’ve located one Judge who agrees. In the Sourcefire securities class action, Judge J. Frederick Motz (Reagan ’85) asked the attorneys to “confer with one another to agree upon a briefing schedule in the event that defendants decide to file a motion to dismiss. In your discussions, please agree upon deadlines that will have the effect of moving this litigation along expeditiously but avoid (1) Monday deadlines, and (2) deadlines that would have an adverse effect upon the holiday schedule of counsel on either side.”

What’s that? A Judge who actually is professional enough to care about attorney’s personal and family lives? This Judge needs to talk to some of his brethren, as he (unfortunately for our families) sure seems in the minority.

You can read the whole letter here.

Nugget: “Despite the informal nature of this ruling, it shall constitute an Order of Court, and the Clerk is directed to docket it accordingly.”

Cut and Paste Nightmare

You know it’s not going to turn out well for Plaintiffs when the Court says “at this juncture, the Court notes with great concern that Plaintiff includes the following as footnote 46 in its Opposition to Defendants’ Motion to Dismiss.” What was the footnote, you ask? Well, here it is, and it seems fine, right?

“Defendant Warren signed the Form 10-Qs filed during the Class Period. (Complaint PP 149, 151, 153, 167, 169, 172, 184). The form 10-Ks were signed by defendants Hickey and Van Riper in 1999 (Compl. P143), by defendants Hickey, Van Riper and Warren in 2000 (Compl. P159), and by defendants Hickey, Kelsey and Warren in 2001.”

Oh, but I assure you, it’s not fine. Judge Harold A. Ackerman (D. N.J.) continued, lamenting that “this footnote caused the Court considerable confusion because, as noted above, the SAC makes mention only of Defendants Fass, Sternlicht and Bond.” So, “after a not inconsiderable expenditure of judicial resources, the Court discovered that footnote 46 was also, and more properly, included by Plaintiff’s counsel as footnote 26 in its opposition brief to a motion to dismiss filed in Senn v. Hickey, No. 03-4372 (D.N.J. filed April 25, 2005), a case completely unrelated to the present action, with Plaintiff’s counsel as the only common de-nominator.” Uh-oh.

You see, “in Senn v. Hickey, there were in fact defendants named Warren, Hickey, Van Riper and Kelsey; there are no such defendants in the instant action. This Court recognizes that the inherent nature of modern litigation and word processing lends itself to some ‘cut-and-pasting’ of boilerplate from one case to the next; this example of duplication, however, is not easily overlooked. The Court urges counsel to exercise greater diligence in its future filings.”

Result? Nothing to do with the footnote (I hope), dismissed with prejudice.

You can read In re Bio-Technology General, issued October 26, 2006, at 2006 U.S. Dist. LEXIS 81268.

Nugget: “The chasm this Court must traverse to reach Plaintiff’s conclusion is simply too great.”

How Do You Like Us in Bold?

Having been dismissed once back in February 2006, Judge Marilyn Hall Patel (N.D. Cal.) (pictured) gave Plaintiffs in the iPass securities class action another chance. So what did they do? Well, I’m not sure what might have gone wrong, but Judge Patel says “Plaintiffs have merely changed the typeface in their amended complaint.” Is this really for real? Really? Wow, I couldn’t see the true falsity before, but now that I read it in 14 point Bolded Palatino Linotype, it’s so clear. I’m going to deny the individual defendants’ motions to dismiss in full, and suggest to counsel that if they’d gone all out with the BlackAdder ITC fully-loaded 16 point, I’d have even kept those nasty auditors in this thing. But guess what? It didn’t work. I mean it really didn’t work.

In all fairness, it seems there were other changes to the second amended complaint, but they did about as much good as the ill-fated font switch (or whatever the actual typeface change actually was), with Judge Patel topping it all off by noting that Plaintiffs “failure to meet their pleading burden despite the Court’s Order having laid out a clear blueprint for doing so suggests that amendment would be futile.”

Result? Dismissed with prejudice.

You can read In re iPass, issued September 6, 2006, at 2006 U.S. Dist. LEXIS 63654.

Nugget: “If anything, sale to repay a loan is more probative of good faith than bad, as it provides a reason for the sale wholly independent of future business difficulties.”

Block Quotes Don’t Cut It

Judge Jeffrey S. White (N.D. Cal.), who upheld Plaintiffs’ 1933 Act claims, but dismissed the 1934 Exchange Act claims, has a few words of advice for Plaintiffs should they choose to amend their complaint again in the Intrabiotics securities class action. You see, because the complaint contains “large block quotes,” and “Plaintiffs engage in a pattern of quoting long excerpts from documents which contain multiple statements,” Judge White said that Plaintiffs, who “are responsible for identifying with particularity what statements are false and misleading,” “have not fulfilled their responsibility in this regard.” So, next time around, they “should clearly identify which specific statements within the documents or block quotes they contend are false or misleading.”

Of possible interest: Intrabiotics, with $15 million in D&O insurance, and about $50 million in cash, has not generated a single penny of revenue since its inception in 1994. Not even one.

You can read In re Intrabiotics, issued January 23, 2006, at 2006 U.S. Dist. LEXIS 15753.

Nugget: “If the DSMB, and then Defendants, were able to determine before the trial was completed that iseganan was not achieving its goals and was unsafe, then it is possible that the DSMB and Defendants had such information even sooner than the decision to terminate the trial was announced. The problem with Plaintiffs’ Complaint is that it provides no basis for determining, or even inferring, when, Defendants may have had such information.”

More Complaints About Complaints

Perhaps it’s a coincidence, and perhaps it’s a trend, but this is the third reported decision in the past month (the others are here and here) that is critical of Plaintiffs’ amended complaint drafting techniques. This time, it’s Judge Susan R. Bolton (D. Ariz.) entering the fray, commenting (in connection with her complete dismissal without prejudice of the White Electronic Designs securities class action) that “Plaintiffs are advised, if they choose to re-file their Complaint, to give considered thought to efficient pleading and meaningful analysis. For example, it is extremely difficult and time consuming for the Court to piece together the alleged misrepresentations and omissions with factual assertions located in other parts of the Complaint. It would save considerable effort if Plaintiffs could somehow group together the alleged misrepresentations and reasons why they are misleading so that the Court is not forced to continually jump around the document.”

Trend or just business as usual? Feel free to add a comment below with your view (as always, no registration required, and you can be anonymous if you like).

You can read In re White Electronic Designs, issued February 14, 2006, at 2006 U.S. Dist. LEXIS 6961.

Nugget: “If Plaintiffs had provided any of the specific information in the alleged analysis, their claim might survive a motion to dismiss. Presumably CI 3, who prepared the analysis, would be able to provide some details, yet Plaintiffs have not given the Court any information contained in the analysis.”

Judge Likes Fact Summary More Than Complaint

Here’s something to think about next time you’re cranking out that amended complaint you thought was concise. You see, after striking certain portions of Plaintiffs’ complaint in the Netopia securities class action, and while allowing Plaintiffs to amend their complaint again, Judge Ronald M. Whyte (N.D. Cal.) expressed his displeasure with the length of their “fifty-page complaint.” Judge Whyte said he “understands the defendants’ attempt to prune the complaint down to a manageable size through their motion to dismiss or strike,” as “the complaint is needlessly cumbersome, “and “plaintiffs do not need anywhere near fifty pages to state two causes of action against five defendants, even under the heightened pleading standards of the Reform Act.”

Judge Whyte also pointed out that “in their opposition to the defendants’ motion to dismiss or strike, the plaintiffs filed a thirty-two-page memorandum of points and authorities. Ten of these pages are a summary of the factual allegations of the complaint. This ten-page summary appears to the court to be a much more useful version of the complaint, and shows that the plaintiffs can present the complaint in a shorter form.” So, “as a matter of prudent case management, the court will order Plaintiffs to file a streamlined version of their complaint which does not exceed thirty-five pages within twenty days of the date of this order.”

You can read In re Netopia, issued December 15, 2005, at 2005 U.S. Dist. LEXIS 38823.

Nugget: “Kadish whispering into the ear of Farrell while she spoke to Andalcio is certainly suspicious, but plaintiffs do not provide the substance of Kadish’s instructions to Farrell.”

Ho, Ho, Ho, Who’s Laughing Now?

Seriously, what would possibly possess you to tell the judge that your opponents’ argument is “laughable” and “nonsensical?” O.K., it’s understandable if you’re John Payne conducting an important holiday sanity hearing, but otherwise this type of invective is more likely to get you an order like this one. In this instance, it was Plaintiffs in the Jasmine securities class action who ridiculed Defendants’ summary judgment position that “there can be no loss causation absent disclosure of the fraud.” Judge Robert B. Kugler (D.N.J.) sure didn’t find it funny, as he ruled that “because the market can only react to news when it is revealed, the price of Jasmine’s stock could not have fallen as a result of the misrepresentations unless the market knew about the misrepresentations – that is, unless the Misrepresentations had directly or indirectly been disclosed to the market.” As a result, he found Plaintiffs’ argument “unpersuasive,” as “loss causation requires disclosure.”

You can read McKown v. Jasmine, issued June 30, 2005, at 2005 U.S. Dist. LEXIS 32164.

Nugget: “Although the plaintiffs now argue that the market can correct a stock price before investors receive notice of the relevant information, there can be no loss causation absent disclosure of the fraud to the market.”

Judge Scolds Arrogant Defense Counsel

As Justice Stone proved once and for all in his legendary dissent in United States v. Carolene Products Co., sometimes the best stuff really is in the footnotes, and well, Judge Reggie B. Walton (D. D.C.) is no exception. Sure, the Plaintiffs won, but you’re ready to head out for Labor Day weekend, grab a cold one, and who really cares, right? Well, read on, because this is what you’ve hoped for – a judge who finally calls out that slightly overzealous, mildly impolite (OK, who are we kidding, that pedantic, pontificating, pretentious bastard, that belligerent old fart, a worthless steaming pile of cow dung — figuratively speaking, of course) attorney we all love to hate. Here it is folks, enjoy your holiday. Bet these guys won’t after General Counsel reads this.

“Based upon the papers thus far submitted to this Court, it is clear that this is a highly contentious litigation. Despite the apparent animosity between the parties, counsel are reminded that they are expected to treat each other, and every other individual involved in this litigation, with ‘dignity, respect and civility, both in court and in out-of-court conference, meeting and discovery proceedings.’ (Judge Walton’s General Order and Guidelines for Civil Cases). This includes civility in the papers submitted to this Court.”

“The papers submitted by the defendants do not demonstrate the dignity and respect the Court expects of litigants appearing before it. See, e. g., Def.’s Reply at 7 (“Defendants agree that a review of the Amended Complaint is a ‘painstaking’ endeavor.”); 18 (“If Plaintiffs do not appear to understand their own claims, how can Defendants?”); 29 (“Defendants are not obligated to teach Plaintiffs how to properly plead their complaint. However, we will give Plaintiffs a clue.”). Such condescending invectives do nothing to advance a party’s position. As members of the Bar, counsel surely know how to vigorously advance their respective party’s position without being disrespectful or mean spirited. The Court will look with disfavor on any further circumstances that warrant such a reminder, and if warranted, will take appropriate action to sanction such behavior.”

Finally, somebody said it. Let’s just hope someone is listening.

You can read Burman v. Phoenix, issued August 30, 2005, at 2005 U.S. Dist. LEXIS 18572.

Nugget: “Construing the complaint in the light most favorable to the plaintiffs, as this Court must do, it is clear that the plaintiffs predicate their securities fraud claims not on misrepresented projected revenue, as the defendants contend, but rather on the fact that Phoenix allegedly misrepresented that various contracts had been signed.”