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<i>Twombly</i> and <i>Iqbal</i> As Applied to Non-Fraud No-Injury Claims
One of the most fundamental tenets every law student learns is that plaintiffs must establish an injury to prevail in their case. For years, a class of cases known as “no-injury” product liability claims have been addressed by courts and mostly have been dismissed. Plaintiffs in these cases bring causes of action based on a product's performance, but do not allege that they suffered injury from the product. Another fundamental proposition that every law student entering law school after 2007 learns is that, to survive a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), a complaint must be plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), have had a far-reaching impact on civil cases.
This article explores the application by a number of courts of the Twombly and Iqbal standards to no-injury cases involving breach of warranty claims. As the cases demonstrate, no-injury claims, which were already receiving increased scrutiny pre- Twombly and Iqbal, have frequently been dismissed under the plausible pleading standard. Two cases that have managed to survive the Twombly and Iqbal standards are also examined. The article concludes with some practical considerations for preparing motions to dismiss no-injury claims in light of the plausibility standard and recent cases.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.