Friday, May 22, 2009

Twombly two

On May 18, the Supreme Court decided in Ashcroft v. Iqbal, 566 U.S. __, No. 07-1015 (U.S. Supr. Ct., May 18, 2009) that the pleading standard announced in Bell Atlantic v. Twombly applies not only to antitrust cases, but to all civil cases where Rule 8 governs:

Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” “[D]etailed factual allegations” are not required, Twombly, 550 U. S., at 555, but the Rule does call for sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face,” id., at 570. A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id., at 556. Two working principles underlie Twombly. First, the tenet that a court must accept a complaint’s allegations as true is inapplicable to thread bare recitals of a cause of action’s elements, supported by mere conclusory statements. Id., at 555. Second, determining whether a complaint states a plausible claim is context-specific, requiring the reviewing court to draw on its experience and common sense. Id., at 556. A court considering a motion to dismiss may begin by identifying allegations that, because they are mere conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the complaint’s framework, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

So will the West Virginia Supreme Court apply the same common-sense standard? Who knows. They have avoided the question three times since Twombly was decided. (See Hoover v. Moran, 662 S.E.2d 711 at n.3 (W.Va. 2008); In Re Flood Litigation Coal River Watershed, 668 S.E.2d 203 at n.10 (W.Va. 2008); Highmark W. Va. v. Jamie, M.D. 655 S.E.2d 509 at n.4 (W.Va. 2007)).

Ashcroft v. Iqbal, 566 U.S. __, No. 07-1015 (U.S. Supr. Ct., May 18, 2009)

Friday, May 15, 2009

PDF Exhibit Stamps - Keeping them in place

If you have the full version of Adobe Acrobat (Standard or Pro), you have hopefully downloaded and installed Rick Borstein's terrific PDF Exhibit Stamp set.  This is a custom PDF stamp that allows you to stamp an "exhibit sticker" on your PDFs.

But once the exhibit stamp is applied, how do you keep the stamp in place?

You must flatten your document.  In other words, permanently affix the stamps to the document so that they are inseparable.  Rick suggests two methods for accomplishing this.  One is specific to Acrobat 9 Pro, and the other method is to "refry" the document by printing it to the AdobePDF print driver.  But there is yet another way that I like better.  Install this free flattener tool.

The flattener tool is a javascript that enables the flatten feature in Acrobat.  I use Acrobat 8 Pro, and it works great.  I believe it works with other earlier versions as well.  All you have to do is copy the flatten.js file to your Acrobat JavaScripts directory and restart Acrobat.  It will add to your "Document" menu two more commands: "Flatten page" (which flattens the current page) and "Flatten document" (which flattens all stamps on your document).

If you are e-filing your stamped PDFs with the Court, you will want to use the flatten tool before e-filing.  Some courts will strip e-filed documents of all stamps, annotations and attachments as a security measure.  The flatten tool will make the stamps a permanent part of your document.

Monday, May 04, 2009

Fourth Circuit holds motion for reconsideration filed with EEOC stays 90-day limitations period

Today in Cochran v. Holder, No. 07-1888 (4th Cir., May 4, 2009)  a disability discrimination case filed by a federal employee, the Fourth Circuit held that the 90-day limitations period begins to run from the date the EEOC denies the employee's motion for reconsideration, not from the date of the denial of the original appeal.

The Fourth Circuit found that this claimant-friendly result is supported by (a)  Supreme Court precedent construing other similar statutes (See Stone v. INS, 514 U.S. 386 (1995); ICC v. Bhd. of Locomotive Engineers, 482 U.S. 270 (1987); (b) decades of federal precedent, all of which have concluded that a timely motion to reopen or reconsider delays the start of the limitations period; and (c) public policy.

Friday, May 01, 2009

WV Bar web site hacked

This article in the WV Record notes that the West Virginia State Bar's web site was recently hacked.

According to the article, "Anita Casey, executive director of the State Bar, said in a press release that whomever hacked the site gained access to information like current and former members' Social Security numbers, addresses and birthdates."

That's all the info someone needs to open up a credit account in your name.

I have submitted a 90-day fraud alert with Equifax, and advise other past and present members of the WV Bar to do the same. After a fraud alert is filed, "when you or someone else attempts to open a credit account in your name, increase the credit limit on an existing account, or obtain a new card on an existing account, the lender should takes steps to verify that you have authorized the request."

Filing with any one of the big 3 (Equifax, Experian, Trans Union) will result in filing with the other two, according to Equifax's site. This web page explains the process. It's a simple form to fill out and will take 2 minutes of your time. It costs nothing and does not affect current credit accounts you have.

Here is the link:

Here are links to the other two credit reporting agencies:

Experian -
Phone: 888-EXPERIAN (397-3742)

Trans Union -
Phone: 800-680-7289

The West Virginia Attorney General's page has some more information about credit fraud and ID theft, if you are interested: