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Tuesday, October 14, 2008

Someone is reading us

In August, I criticized the Ninth Circuit decision in In re DRAM Litigation, which dismissed a claim under the Foreign Trade Antitrust Improvements Act (FTAIA) for lack of subject matter jurisdiction, rather than for failure to state a claim, which I believe was the more appropriate ground.

Well, today, I received an e-mail from the author of the opinion, Ninth Circuit Judge Raymond Fisher, and a copy of the revised opinion, which included the following footnote:

The district court granted defendants’ motion to dismiss, which was premised solely on jurisdictional grounds. It is unclear, however, whether the FTAIA is more appropriately viewed as withdrawing jurisdiction from
the federal courts when a plaintiff fails to establish proximate cause or as simply establishing a limited cause of action requiring plaintiffs to prove proximate cause as an element of the claim. Compare Empagran S.A. v.
F. Hoffman-LaRoche, Ltd., 417 F.3d 1267, 1268-69, 1271 (D.C. Cir. 2005) (affirming dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction), with In re Elevator Antitrust Litigation, 502 F.3d 47, 49-50
(2d Cir. 2007) (affirming dismissal on 12(b)(6) grounds). The Supreme Court’s decision in Empagran I provides little guidance because, although the district court had dismissed under Rule 12(b)(1), the Court did not
explicitly address whether the issue was properly viewed as one of federal question subject matter jurisdiction or of a failure to state a claim under federal law. We decline to resolve the question, because it was not argued
by the parties and in this case the result and analysis are the same. Accordingly, we assume without deciding that the district court correctly dismissed under Rule 12(b)(1).

Judge Fisher also graciously said that they welcome constructive feedback from academics. No citation for the blog or for my articles on the issue, unfortunately. But kind of nice to see that we can have some practical effect.

Posted by Howard Wasserman on October 14, 2008 at 07:40 PM in Law and Politics | Permalink

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Comments

That's excellent. Last year, I blogged a concern about a Judge Fisher opinion (more of a question about the facts than a concern, really), and the opinion was amended a few days later in a way that nicely answered the concern I had raised. I wasn't entirely sure that the amendment was a response to my blog post, though: I certainly never received a personal e-mail! So it's cool that this happened here.

More broadly, I think that it's a great credit to judges who are following the serious blog responses to their opinions and are willing to make minor amendments such as that to their opinions. It takes a sense of real commitment to getting it right, and it's a commitment that a lot of observers of the courts notice. I don't know how many Judges would be willing to do this, but kudos to Judge Fisher for doing so here.

Posted by: Orin Kerr | Oct 15, 2008 2:54:26 AM

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