Wednesday, February 17, 2010


NYLJ 5-22-07


2. The Nine are also know as The Nazgul, men who, having given their souls over the twisted influence of Sauron of Mordor, are now deathless wraiths, wreaking havoc on the world of men and striking terror into everything they touch. For the purpose of evaluating rulings by the U.S. Supreme Court of Chief Justice Roberts then, the characters of JRR Tolkien seem extraordinarily apt--especially that of their leader...The Witch-King!

The present scream screed puts a stake in the heart of a private plaintiff’s options for filing long-shot, anti-trust claims against big businesses. It may look monstrous on the human scale of things, but it is still utterly true: “A bare assertion of conspiracy will not suffice.” In other words: you see sinister plots everywhere--the Kennedy Assassination, the plane crash over East Moriches, complicity in 9/11, the reason you didn't get that raise? You may know something is wrong, ok? Just don't expect to get any help with subpeona deuces tecum. Without a first-class whistle blower on your side, the summary judgment stage in claims under Section 1 of the Sherman Act, may be your first stop, and your last.

Don't expect to lead a torchlight posse of outraged villagers with scythes and pitchforks to storm the castle. Or, to get a bit more contempo, do a Watergate 180. Go ahead, send in a marshall with some papers, like they do in the movies, uh-huh. And then they come out wheeling boxes straight from the secret, hidden files room. Check. If you've ever seen a Bill of Particulars you'd know; the key word here is "particular". You have to know something exists before you can make a demand for it. (Believe me, I've tried these omnibus numbers with boilerplate and got nothing back but acid reflux.) “Discovery abuse” is the term used by David Souter in his opinion--what everyone in the lower courts calls "a fishing expedition".

“Because the plaintiffs have not nudged their claims across the line from ‘conceivable’ to ‘plausible’, their complaint must be dismissed.” Justice Souter still requires “enough facts to state a claim to relief that is plausible on its face.”

Although the minority had a hand in cutting off the beast's head too. “The transparent policy concern that drives the decision is in the interest of protecting the defendant’s from the burdens of pre-trial discovery”, is Justice Stevens' Van Helsing touch.

[And if you think that's all the gothic tales, someday we must have a chat about their recent bit of vivisection which gives a twisted new life to Corps-orations to a degree that would make Dr. Moreau blanch and Lovecraft's "Re-Animator" blush.]

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